    [Senate Hearing 106-339]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 106-339

                    BALLISTIC MISSILES: THREAT AND RESPONSE

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

                                    HEARINGS

                                   BEFORE THE

                         COMMITTEE ON FOREIGN RELATIONS
                              UNITED STATES SENATE

                           ONE HUNDRED SIXTH CONGRESS

                                 FIRST SESSION

                                   __________

         APRIL 15 AND 20, MAY 4, 5, 13, 25, 26, AND SEPTEMBER 16, 1999

                                   __________

           Printed for the use of the Committee on Foreign Relations

    Available via the World Wide Web: http://www.access.gpo.gov/congress/senate

                         U.S. GOVERNMENT PRINTING OFFICE
    56-777 CC                    WASHINGTON : 2000

                         COMMITTEE ON FOREIGN RELATIONS

                     JESSE HELMS, North Carolina, Chairman
    RICHARD G. LUGAR, Indiana            JOSEPH R. BIDEN, Jr., Delaware
    PAUL COVERDELL, Georgia              PAUL S. SARBANES, Maryland
    CHUCK HAGEL, Nebraska                CHRISTOPHER J. DODD, Connecticut
    GORDON H. SMITH, Oregon              JOHN F. KERRY, Massachusetts
    ROD GRAMS, Minnesota                 RUSSELL D. FEINGOLD, Wisconsin
    SAM BROWNBACK, Kansas                PAUL D. WELLSTONE, Minnesota
    CRAIG THOMAS, Wyoming                BARBARA BOXER, California
    JOHN ASHCROFT, Missouri              ROBERT G. TORRICELLI, New Jersey
    BILL FRIST, Tennessee
                       Stephen E. Biegun, Staff Director
                     Edwin K. Hall, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------

                                 April 15, 1999
                 U.S. Vulnerability to Ballistic Missile Attack

                                                                       Page

    Helms, Hon. Jesse, U.S. Senator from North Carolina, opening
      statement......................................................     1
    Weinberger, Hon. Caspar, former Secretary of Defense and
      chairman, Forbes Magazine, Washington, DC......................     4

                                 April 20, 1999
                Current and Growing Missile Threats to the U.S.

    Lilley, Hon. James R., former U.S. Ambassador to China, the
      American Enterprise Institute, Washington, DC..................    34
        Prepared statement of........................................    39
    Schlesinger, Hon. James R., former Secretary of Defense, former
      Secretary of Energy, and former Director of the U.S. Central
      Intelligence Agency............................................    15
        Prepared statement of........................................    18
    Schneider, Hon. William, Jr., former Under Secretary of State for
      Security Assistance, Science, and Technology, adjunct fellow,
      Hudson Institute, Washington, DC...............................    26
        Prepared statement of........................................    31
    Walpole, Robert D., National Intelligence Officer for Strategic
      and Nuclear Programs, Center for Strategic and International
      Studies, prepared statement....................................    53

                                  May 4, 1999
    Ballistic Missile Defense Technology: Is the United States Ready for A
                              Decision to Deploy?

    Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, prepared
      statement......................................................    92
    Garwin, Dr. Richard L., Philip D. Reed senior fellow for science
      and technology, Council on Foreign Relations...................    74
        Prepared statement of........................................    78
    Graham, Dr. William R., former Director of the White House Office
      of Science and Technology Policy...............................    63
        Prepared statement of........................................    66
    Helms, Hon. Jesse, U.S. Senator from North Carolina, prepared
      statement......................................................    60
    Piotrowski, Gen. John, former Commander in Chief, Space Command,
      Colorado Springs, CO...........................................    73
    Shelby, Hon. Richard C., U.S. Senator from Alabama...............    61
        Prepared statement of........................................    62
    Wright, Dr. David C., research fellow, Security Studies Program,
      Massachusetts Institute of Technology, Cambridge, MA...........    81
        Prepared statement of........................................    85

                                  May 5, 1999
        Does the ABM Treaty Still Serve U.S. Strategic and Arms Control
                         Objectives in A Changed World?

    Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, prepared
      statement......................................................   149
    Habiger, Gen. Eugene E., former Commander in Chief, U.S.
      Strategic Command, Omaha, NE...................................   139
    Lehman, Hon. Ronald F., former Director of the Arms Control and
      Disarmament Agency.............................................   122
        Prepared statement of........................................   127
            Remarks entitled ``Changing Realities,'' November 1992,
              published 1993.........................................   129
            Remarks entitled ``START II, Missile Non-Proliferation,
              and Missile Defense--The Offense-Defense Relationship:
              Past and Future.'' February 14, 1996, at Carnegie
              Endowment Seminar......................................   132
    Payne, Dr. Keith B., president and director of research, National
      Institute for Public Policy; and adjunct professor, Georgetown
      University, Washington, DC.....................................   141
        Prepared statement of........................................   144
    Woolsey, Hon. R. James, former Director of the Central
      Intelligence Agency............................................   116
        Prepared statement of........................................   120

                                  May 13, 1999
                   ABM Treaty, START II, and Missile Defense

    Hadley, Hon. Stephen, former Assistant Secretary of Defense,
      partner, Shea & Gardner, Washington, DC........................   171
        Prepared statement of........................................   173
    Joseph Hon. Robert G., former Ambassador to the ABM Treaty's
      Standing Consultative Commission; Director, Center for Counter
      Proliferation Research, National Defense University,
      Washington, DC.................................................   193
        Prepared statement of........................................   197
    Lee, William T., former analyst for the Defense Intelligence
      Agency; adjunct fellow, Center for Strategic and International
      Studies, Washington, DC........................................   211
        Prepared statement of........................................   212
            Annex 1: Questions submitted by the Honorable Curt Weldon
              to the CIA and CIA's responses.........................   216
            Annex 2: Implications of the ABM Treaty Protocols and
              Agreed Statements......................................   217
            Annex 3: Post Soviet Union Russian Missile and Air
              Weapons Development....................................   220
    Smith, Hon. David J., former Chief U.S. Negotiator to the Defense
      and Space Talks; president, Global Horizons Inc., Annandale, VA   178
        Prepared statement of........................................   184

                                  May 25, 1999
                       The Legal Status of the ABM Treaty

    Feith, Douglas J., former Deputy Assistant Secretary of Defense
      for Negotiation Policy, partner, Feith & Zell; accompanied by
      George Miron, Washington, DC...................................   228
        Prepared statement of........................................   231
            Supplementary remarks of Douglas J. Feith and George
              Miron on the Legal Status of the ABM Treaty............   304
    Glennon, Michael J., professor of law, the University of
      California, Davis, CA..........................................   276
        Prepared statement of........................................   280
    Rivkin, David B., Jr., partner, Hunton & Williams, accompanied by
      Lee A. Casey, Washington, DC...................................   263
        Prepared statement of........................................   265
            Letter to Senator Helm forwarding additional
              documentation..........................................   272
            Text of a letter from the President to the Chairmen of
              the Senate and House Committees on Appropriations......   273
            Report to Congress on the Memorandum of Understanding
              relating to the treaty between the United States of
              America and the Union of Soviet Socialist Republics on
              the Limitation of Anti-Ballistic Missile Systems--May
              26, 1972...............................................   273
    Turner, Robert F., associate director, School of Law, Center for
      National Security Law, University of Virginia, prepared
      statement......................................................   313

                                  May 26, 1999
      Cornerstone of Our Security: Should the Senate Reject A Protocol to
              Reconstitute the ABM Treaty With Four New Partners?

    Helms, Hon. Jesse, U.S. Senator from North Carolina, prepared
      statement......................................................   323
    Kissinger, Hon. Henry A., chairman, Kissinger & Associates, New
      York, NY.......................................................   326
        Prepared statement of........................................   329

                               September 16, 1999
     Foreign Missile Developments and the Ballistic Missile Threat to the
                           United States Through 2015

    Helms, Hon. Jesse, U.S. Senator from North Carolina, prepared
      statement......................................................   347
    Walpole, Robert D., National Intelligence Officer for Strategic
      and Nuclear Programs, Central Intelligence Agency..............   348
        Prepared statement of........................................   355
            Foreign Missile Developments and the Ballistic Missile
              Threat to the United States Through 2015--summation of
              annual report to Congress..............................   361

                                   APPENDICES

                                   Appendix 1

    Selected Republican Staff Memoranda to the members of the Foreign
      Relations Committee:
        April 20, 1999 ``Current and Growing Missile Threats to the
          United States and the Need for Ballistic Missile Defense''.   377
        May 12, 1999 ``The ABM Treaty and the Need for Ballistic
          Missile Defenses''.........................................   394
        May 24, 1999 ``The Legal Status of the ABM Treaty''..........   399
        May 25, 1999 ``Cornerstone of Our Security?: Should the
          Senate Reject a Protocol to Reconstitute the ABM Treaty
          with Four New Partners?''..................................   403
        September 13, 1999 ``National Intelligence Estimate: Foreign
          Missile Developments and the Ballistic Missile Threat to
          the United States Through 2015''...........................   407

                                   Appendix 2

    Relevant Intelligence Community Documents:
        September 1999 National Intelligence Council Report,
          ``Foreign Missile Developments and the Ballistic Missile
          Threat to the United States Through 2015''.................   409
        Unclassified Report to Congress on the Acquisition of
          Technology Relating to Weapons of Mass Destruction and
          Advanced Conventional Munitions, 1 January Through 30 June
          1999.......................................................   418

                                   Appendix 3

    Related Documents:
        Treaty Between the United States of America and the Union of
          Soviet Socialist Republics on the Limitation of Anti-
          Ballistic Missile Systems (May 26, 1972)...................   424
        Agreed Statements, Common Understandings, and Unilateral
          Statements Regarding the Treaty Between the United States
          of America and the Union of Soviet Socialist Republics on
          the Limitation of Anti-Ballistic Missiles (May 26, 1972)...   427
        Memorandum of Understanding Between the Government of the
          United States of America and the Government of the Union of
          Soviet Socialist Republics Regarding the Establishment of a
          Standing Consultative Commission (December 21, 1972).......   430
        Protocol to the Treaty Between the United States of America
          and the Union of Soviet Socialist Republics on the
          Limitation of Anti-Ballistic Missile Systems (July 3, 1974)   431
        Protocol on Procedures Governing Replacement, Dismantling or
          Destruction and Notification Thereof, for ABM Systems and
          Their Components (July 3, 1974)............................   432
        Supplementary Protocol to the Protocol on Procedures
          Governing Replacement, Dismantling or Destruction, and
          Notification Thereof, for ABM Systems and Their Components
          of July 3, 1974 (October 28, 1976).........................   433
        Agreed Statements of November 1, 1978........................   434
        Statement by U.S. SCC Commissioner Buchheim..................   436
        Statement by Soviet SCC Commissioner Ustinov.................   437
        Common Understanding of June 6, 1985.........................   438
        Standing Consultative Commission Documents (September 26,
          1997)......................................................   438
        Five-Year ABM Treaty Reviews.................................   440
        Public Law 106-38--July 22, 1999, Short-Titled the ``National
          Missile Defense Act''......................................   453
        Statement by the President of the United States on Signing
          Public Law 106-38..........................................   454
        Statement by Senator Thad Cochran on the Statement of the
          President of the United States on Signing Public Law 106-38   454
        Executive Summary of the Report of the Commission to Assess
          the Ballistic Missile Threat to the United States..........   456
        June 16, 1997 Letter from Chairman Gilman to President
          Clinton and November 21, 1997 response from the President..   476
        March 3, 1998 Letter from Chairman Gilman and Chairman Helms
          to President Clinton and May 21, 1998 response from the
          President..................................................   479
        August 14, 1998 Letter from Chairman Gilman to President
          Clinton, October 5, 1998...................................   481
        Letter from Senators Lott, Helms, Nickles, Mack, Craig,
          Coverdell, Kyl, and Smith to President Clinton, and
          December 17, 1998 response from the President..............   482
        Presidential Message 35 (May 14, 1997).......................   484
        Presidential Message 36 (May 14, 1997).......................   485
        Condition #9 of Executive Report 105-1, Resolution of
          Ratification for the Flank Document to the Conventional
          Armed Forces in Europe Treaty..............................   485

                 U.S. VULNERABILITY TO BALLISTIC MISSILE ATTACK

                                  ----------

                            THURSDAY, APRIL 15, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice at 10:03 a.m., in
    room SD-562, Dirksen Senate Office Building, Hon. Chuck Hagel
    presiding.
        Present: Senator Hagel.
        Senator Hagel. Good morning.
        Mr. Secretary, if you would like to take a seat, I think we
    have fortified you well with water. If you would like anything
    else, we can get that, too.
        Is that seat a little low, Mr. Secretary?
        Mr. Weinberger. It's all right, thank you.
        Senator Hagel. I think we can get something for you. Those
    seats are very low.
        I started to understand early on in this business, Mr.
    Secretary, that all the Senators up here looked larger than
    life. I quickly realized that we were being propped up from
    underneath, as most of us are, by our staffs, anyway, if not by
    these seat cushions. We are just a little more direct about it.
        Mr. Secretary, welcome.
        Let me first explain to those who are here, if there is any
    question, I am not Chairman Helms. I am Senator Hagel, a member
    of this committee. Chairman Helms has been delayed on some
    personal business and is hoping to arrive here before the
    conclusion of this hearing. That is why I am here.
        Mr. Secretary, I have a statement that I will read in
    preparation for your testimony. My remarks will include some of
    Chairman Helms' statement. Chairman Helms' statement will be
    placed in the record.
        [The opening statement of Senator Helms follows:]

                    Opening Statement of Senator Jesse Helms

        It's an honor to have this distinguished American, former Secretary
    of Defense, Caspar Weinberger, with us for today's Senate Foreign
    Relations Committee hearing devoted to missile defense and the Clinton
    administration's proposed amendments to the 1972 ABM Treaty.
        Mr. Secretary, welcome back to the Foreign Relations Committee. It
    is indeed appropriate that you are leading off the Committee's
    consideration of this treaty, because it was during your leadership in
    the Reagan administration that the U.S. set the goal of building a
    nationwide missile defense to protect this country from ballistic
    missile attack. It is sad that as we sit here, eighteen years later,
    America is still unprotected. With your help and guidance, Mr.
    Secretary, I believe Congress may soon do something about that.
        This is the first in a series of eight hearings of the Foreign
    Relations Committee devoted to the missile threat to the United States,
    the need for missile defense, and the question of whether the Senate
    should agree to amendments to revive and expand the ABM Treaty.
    Senators Hagel, Grams, Ashcroft, Coverdell and others will chair
    hearings in the coming weeks on various aspects of this treaty.
        As we begin this process, let it be clear at the outset: The
    Committee is not here merely to consider technical changes to the ABM
    Treaty. We are here to consider the ABM treaty itself.
        The issue before us is: Should the United States continue to be
    bound by this dangerous and antiquated arms control pact, born of the
    cold war, which now prevents America from defending its territory from
    ballistic missile attack? The answer, in my view, is a resounding
    ``NO!''
        The Committee will proceed on the legal presumption that the ABM
    Treaty is no longer in force--that it expired when our treaty partner,
    the Soviet Union, ceased to exist. Therefore, what the Committee is
    considering today is a proposed new ABM Treaty, recreated with four new
    treaty partners. Now, I will not go into the detailed legal arguments
    here--indeed, we will have a hearing in the coming weeks devoted
    exclusively to discussing and debating this aspect of the matter.
        But one thing is irrefutable: Regardless of the treaty's legal
    status, the Senate vote on these ABM amendments will be a referendum on
    the ABM Treaty itself. The Senate's rejection of these amendments would
    strike down the Clinton administration's efforts to reconstitute the
    ABM Treaty and would constitute a resounding vote of ``no confidence''
    in continued U.S. adherence to that fatally-flawed agreement.
        The President knows and understands this--which is why he is
    refusing to honor his pledge to submit the ABM amendments to the Senate
    for a vote. As we begin these hearings, I note that tomorrow will mark
    exactly 700 days since President Clinton made a legally-binding
    commitment to submit the ABM amendments for the Senate's advice and
    consent--700 days!
        Now I have been accused from time to time of holding treaties
    hostage. But I don't hold a candle to the President in this matter. The
    President is holding the revised ABM Treaty hostage because he fears
    that the Senate will refuse to ratify it. Which, if I am successful, is
    just what we will do.
        We must get rid of the ABM Treaty if we are going to meet the
    security challenges of the next century. During the cold war, the
    United States depended on the doctrine of ``Mutually Assured
    Destruction''--or ``MAD''--to deter Soviet missile attack--a pathetic
    alternative to a national missile defense indeed. Even in the context
    of the cold war, as President Reagan famously said, ``MAD was NUTS.''
    But now that the cold war is over, continuing to intentionally expose
    our nation to ballistic missile attack by rogue states, as a matter of
    policy, is quite simply INSANE.
        Under the MAD doctrine, we assumed that our adversary was what the
    political scientists like to call a ``rational actor''--someone who
    would be deterred from launching a first strike against us by the
    promise of a devastating U.S. nuclear response.
        I challenge anyone to argue with a straight face that the
    adversaries of the 21st century--the Saddam Husseins, Kim Jong Ils, and
    Ossama Bin Ladens of the world--are ``rational actors.'' We cannot
    depend on MAD to deter them.
        The world has changed a great deal since the ABM Treaty was
    ratified 27 years ago. The U.S. faces new and very different threats
    today. China has two dozen ICBMs pointed at the U.S., and both China
    and Russia are recklessly proliferating dangerous technology to rogue
    regimes around the world. Some twenty nations, many hostile to the
    U.S., are working to develop nuclear, chemical and biological warheads
    and the missile technology to deliver them. Iran is working on a
    missile that can hit the continental United States, and North Korea's
    unstable regime tested a missile over Japan this past fall which is
    capable, TODAY, of striking Alaska and Hawaii--a capability, I might
    add, which caught the United States intelligence community completely
    by surprise.
        Mr. Secretary, among other things, the Committee will benefit from
    your assessment of the threats we will face in the coming years, how
    they differ from the threats of the cold war, and how missile defense
    can contribute to our national security. I also will be interested to
    know whether you would advise the Committee to agree to the
    administration's plan to resurrect the ABM Treaty with four new
    partners.
        In closing, let me emphasize: the Senate has been patient with the
    administration--700 days of patience to be precise. But our patience
    has its limits. As most of you know, I have set a deadline of June 1
    for the administration to submit the ABM amendments to the Senate. By
    then, the Committee should have concluded its hearings, and will be
    prepared to vote expeditiously on the treaty amendments, so that the
    Senate can vote on them before the August recess.
        Now if the administration expects cooperation from the Committee on
    its priorities, then I will expect their cooperation in the Senate's
    consideration of the ABM Treaty. Let the President make his case for
    reviving the ABM Treaty, we will make our case against it, and then the
    Senate will vote. And if I have my way, we will defeat this treaty and
    move forward to deploy a national missile defense.
        Mr. Secretary, we look forward to your testimony.

        Senator Hagel. I will keep my remarks brief so that we can
    hear from you and get into a dialog which I think is going to
    be important for our committee.
        Let me begin, Mr. Secretary, by expressing on behalf of the
    entire committee our appreciation to you and to say that, in
    fact, it is a distinct honor to have you with us this morning.
        This hearing is devoted to missile defense and the Clinton
    administration's proposed amendments to the 1972 ABM Treaty.
        It is appropriate that Secretary Weinberger be the lead-off
    witness of this committee in its consideration of this treaty.
    It was during Secretary Weinberger's leadership in the Reagan
    administration that the U.S. set the goal of building a nation-
    wide missile defense system to protect this country from
    ballistic missile attack.
        It is sad that, as we sit here 18 years later, America is
    still unprotected. With your help and guidance, Mr. Secretary,
    I believe Congress may soon do something to remedy that.
        Today's hearing is the first in a series of hearings of the
    Foreign Relations Committee devoted to the missile threat to
    the United States, the need for missile defense and the
    question of whether the Senate should agree to amendments to
    revive and expand the ABM Treaty.
        Senators Helms, Grams, Coverdell, and others will chair
    hearings in the coming weeks on various aspects of this treaty.
    As we begin this process, let it be clear at the outset: the
    committee is not here merely to consider technical changes to
    the ABM Treaty. We are here to consider the ABM Treaty itself.
        The issue before us is should the United States continue to
    be bound by this outdated and antiquated arms control pact,
    born of the cold war, which now prevents America from defending
    its territory from ballistic missile attack? That is the
    question.
        The answer, in my view, is a very clear and resounding no.
        Chairman Helms has directed the committee to proceed on the
    legal presumption that the ABM Treaty is no longer in force,
    that it expired when our treaty partner, the Soviet Union,
    ceased to exist. Therefore, what the committee is considering
    today is a proposed new ABM Treaty, recreated with four new
    treaty partners.
        I will not go into the detailed legal arguments here.
    Indeed, we will have a hearing in the coming weeks devoted
    exclusively to discussing and debating this aspect of the
    matter.
        But one thing is irrefutable: regardless of the treaty's
    legal status, the Senate vote on these ABM amendments will be a
    referendum on the ABM Treaty itself. The Senate's rejection of
    these amendments would strike down the Clinton administration's
    efforts to reconstitute the ABM Treaty and would constitute a
    resounding vote of no confidence in continued U.S. adherence to
    the fatally flawed agreement.
        Perhaps the President knows and understands this. That may
    be why he is refusing to honor his pledge to submit the ABM
    amendments to the Senate for a vote. As we begin these
    hearings, I note that tomorrow will mark exactly 700 days since
    President Clinton made a legally binding commitment to submit
    the ABM amendments for the Senate's advice and consent.
        The security of the American people is the most important
    responsibility of the government. Surveys have shown that the
    American people believe they are safe from ballistic missile
    attack. They believe that, if a missile were fired at the
    United States today, all that our military would have to do is
    shoot the missile down. The reality is that the United States
    cannot shoot down any incoming ballistic missile. We are
    completely vulnerable to a missile attack from any country or
    terrorist group, and we are vulnerable to both deliberate and
    accidental missile launches.
        Last summer, the North Koreans launched a Taepo Dong-I
    missile over Japan, exposing our vulnerability and
    demonstrating their capabilities. That missile has the
    capability today to reach U.S. territory with a chemical or a
    biological payload.
        India and Pakistan have now joined the nuclear club by
    testing nuclear devices and just this week have begun test
    firing long range missiles. Our intelligence community was
    surprised by these developments. Many Americans remember our
    previous strategic military situation.
        During World War II, vast oceans kept away these kinds of
    military threats from the American homeland. Oceans again
    insulated the U.S. mainland from the wars in Korea and Vietnam.
        Today, the strategic situation has changed, changed
    dramatically, and missiles now can reach almost any American
    city within minutes.
        We were surprised in December 1941 by the attack on our
    naval forces at Pearl Harbor. Time was on our side, then. We
    had several years to rebuild our navy and raise an army. Today
    we no longer have the luxury of time or of the oceans that once
    protected us. We need to recognize and admit that we have a
    problem in defending ourselves against missile attack. We need
    to stop talking and start taking action to protect ourselves.
        Now, only two things stand in our way: the ABM Treaty and
    the administration's opposition to deploying a missile defense
    system as long as the Russians object to renegotiating the ABM
    Treaty.
        Mr. Secretary, I again welcome you, and appreciate very
    much your getting up very early this morning to join us. With
    that, please proceed.

       STATEMENT OF HON. CASPAR WEINBERGER, FORMER SECRETARY OF
         DEFENSE AND CHAIRMAN, FORBES MAGAZINE, WASHINGTON, DC

        Mr. Weinberger. Thank you very much, Mr. Chairman. It is
    always an honor to be invited to speak before a Senate
    committee. I am deeply conscious of that honor and am very
    pleased, indeed, to be invited and to be here.
        I don't have a formal statement. I have a few notes that I
    would make very brief mention of, and then I would be delighted
    to try to take your questions and those of any of the other
    members who come.
        I was very pleased, indeed, to hear you say that the
    hearings are going to be about the treaty itself. This is
    because I think we all need to recognize that we simply cannot
    deploy any kind of effective system as long as the ABM Treaty
    is in effect.
        I have been talking about this subject now since 1983, when
    President Reagan first proposed it and even before, when we
    talked about it, before he made his formal proposal. We
    recognize that article 15 of the treaty provides for any
    country that feels that its national interest requires it, to
    be able to step out of the treaty by simply giving 6 months
    notice. I think it is long overdue that we give that notice and
    step out of the treaty.
        All through the Reagan administration, everything that we
    did was challenged within the administration and by outsiders
    on the ground that what we were talking about was not treaty
    compliant. So you always had to try to tailor everything you
    were doing, including the research, to make something that
    would fit within the treaty.
        Since the treaty bans anything that is effective, all the
    work that we were doing would only have been effective if we
    had coupled it with a proposal to get rid of the treaty, which
    we did.
        It was never done during those years. I wish it had been.
    But we now have the treaty itself, which offers that
    opportunity, so we are not in any sense violating a treaty we
    entered into, but we would be doing what is essential if we
    want to have any kind of effective defense. A lot of the
    amendments to the treaty that you are talking about, that the
    present administration has proposed, are amendments, first of
    all, to take in four new countries because the Soviet Union, as
    you said, is deceased and the treaty is no longer in effect.
    These would be Russia, Belarus, Kazakhstan, and Ukraine. That
    would make it infinitely more difficult ever to work out a
    provision by which we could step out of the treaty, as we can
    under this practically defunct treaty now.
        So I think it is more than time that we give our notice,
    step out of the treaty, and let the world know that we are
    going to proceed with effective missile defense.
        Meanwhile, all of the research could be useful only--only--
    if we step out of the treaty. People who said why are you
    spending all of this money when you can't deploy anything had a
    point. It was not a good point, but it was a point. It is
    essential that we realize that the treaty itself is
    deliberately designed to make it impossible to deploy an
    effective defense.
        I never really felt it was a wise treaty for us to have
    entered into in the first place. There may have been good cold
    war reasons for it, but I did not share them. In any event, the
    fact of the matter is that, to my mind, it has always seemed
    exactly parallel to a situation in which announced to the world
    that we were not going to equip our troops with gas masks and
    that we would sign an agreement with some other countries that
    they would not equip their troops with gas masks, that then it
    was perfectly all right to send the troops into battle knowing
    that they might possibly be gassed and that they would have no
    defense.
        I do not think you encourage anybody to give up a weapon
    when you announce that you are not going to have any defense
    against it. That is one of the compelling reasons why I think
    we need to step out of this treaty now, and announce to the
    world that we are going to proceed not only with research, not
    only to study, and not only to test, but to deploy an effective
    system that makes use of space and that is the most effective
    we can get.
        It seems hard to believe, but we had a number of people who
    were talking about some kind of changes, and whether they are
    in the formal changes the administration has committed to or
    not, I don't know. I don't even know if they have actually
    submitted their changes yet to the Senate.
        But one of those changes was designed to give some sort of
    permission for very slow reentry vehicles but to ban anything
    that defended against a fast reentry vehicle. So, again, you
    are talking about banning anything that is effective.
        Those are the principal reasons why I think we should, in
    consideration of missile defense, start with the treaty and end
    the treaty. Then we should get on with serious study leading to
    deployment. I think we have lost a lot of time. The program was
    virtually gutted in 1993, after having been started in 1983.
    But I think we have a lot of valuable work that has been done
    and, if we went full bore at it with no treaty blocking it,
    then I think we could get it in a comparatively short time. And
    I think we need it in a comparatively short time.
        I think Mr. Rumsfeld's Commission did a marvelous job in
    pointing out the need for it. The threat is far more imminent
    than any of the intelligence agencies thought, far more
    imminent than the administration announced was the case. So I
    think every reason compels us to get on with this in our kind
    of world and not endanger American troops, American people, or
    American cities by announcing again to the world that not only
    do we not have this kind of defense but that we never intend to
    get one.
        Those are the principal points I wished to make, Mr.
    Chairman, and I would be delighted to try to deal with your
    questions now.
        Senator Hagel. Mr. Secretary, thank you, again, for
    appearing this morning.
        I have some questions that I would like to ask and Chairman
    Helms has some questions, as well, which I will ask on his
    behalf.
        Mr. Weinberger. All right.
        Senator Hagel. Let me begin, Mr. Secretary, by asking this
    question. You alluded to this in your comments and I mentioned
    it in my statement. The administration said that deploying a
    missile defense system to protect American citizens would
    violate the 1972 ABM Treaty. Would you frame up for us in some
    detail what your understanding is of that treaty's provisions
    that would be violated?
        Mr. Weinberger. The treaty itself is designed to ban any
    kind of effective defense. It authorized and allowed, as I
    remember it, the United States to have two ground-based sites,
    which are essentially, in this kind of world, in this kind of
    day, ineffective sites. One would be to protect the national
    capital and the other would be to deal with missiles at the
    point where the military then thought was the most likely entry
    point. It was North Dakota, as I remember it.
        We decided back in 1973 or 1974 not to proceed with either
    site. The Soviets then proceeded to take advantage of that and
    put in some ground-based defenses around Moscow. But they also
    did a lot of other things that were violative of the treaty,
    such as developing a huge new radar at Krasnoyarsk that could
    only have the effect of guiding, warning, and defending against
    incoming missiles, and a guidance system to destroy them. It
    proceeded with a number of actions of that kind that violated
    the treaty.
        My information is that, to this day, they are using a large
    amount of their very scarce resources to continue to try to get
    a missile defense system that would violate the treaty.
        The treaty in effect banned all other effective defenses
    except those two permitted ground-based sites. The intention
    was very clear. We understood it and we accepted it at that
    time in 1972. It was to ban any kind of defensive system on the
    theory that if you were totally vulnerable, you were completely
    safe--not a theory that I ever accepted.
        Senator Hagel. Thank you.
        Why should the United States continue to abide by a treaty
    that may no longer be in its vital national security interests?
        Mr. Weinberger. I don't think we should. I think by every
    legal reasoning--and I have seen three or four opinions by law
    firms commissioned to look at the question--the treaty is dead.
        One of the partners, the only other partner, to the treaty,
    the Soviet Union, is dead, and the treaty is no longer in
    effect.
        However, Mr. Clinton announced very early on that it was
    going to be the cornerstone, the keystone, of our defenses and
    we were going to adhere to it rigorously. He announced, as I
    recall, with considerable excitement that the Russians had
    agreed to the same thing. I am sure they probably tell him they
    would agree to it. But they are continuing to work on missile
    defense.
        Senator Hagel. Mr. Secretary, one of the arguments that has
    been used by opponents of a national missile defense system is
    aren't we being a little short-sighted and can not weapons of
    mass destruction be delivered via a suitcase and other delivery
    vehicles. That is true.
        What is your response to that, when they say why would we
    invest billions and billions of dollars to set up a system
    when, in fact, some terrorist group could bring in a nuclear
    weapon via a suitcase?
        Mr. Weinberger. Well, there could indeed be a nuclear
    weapon brought in in a suitcase, and there have been all kinds
    of other types of very lethal weapons, including the one that
    hit a Japanese subway, and various others, which can cause an
    enormous amount of damage. But I don't think it is an argument
    for not taking the kind of protections and the kind of
    precautions that a missile defense system would bring, simply
    because there may be other ways that destruction can be
    delivered.
        The new explosives that have been developed are not as
    lethal or not as devastating as nuclear weapons, but they are
    enormously devastating. But this is not a reason, I think, to
    not proceed with protections that ultimately can safeguard us
    from the most imminent danger and the danger that can do the
    most damage. A bomb in a suitcase certainly would be
    extraordinarily difficult and unpleasant, and all of the other
    things. But in total destruction, the destruction that could be
    delivered by a nuclear missile of the kind that Korea has
    tested, that China has, that Russia has, all of those are of
    much greater destructive capabilities.
        I don't think the argument that you could deliver one in a
    suitcase is anything that should prevent us from proceeding to
    do the maximum amount of defense we can against
    intercontinental or intermediate range ballistic missiles. I
    also think we obviously should do our best to continue our
    defensive work against anybody carrying the suitcase and to
    improve our intelligence capabilities so that we will know
    about those sooner.
        Senator Hagel. Mr. Secretary, what are your thoughts,
    generally, on the Russian dynamic of this? In particular, the
    critics also cite the fact that the Russians are threatening to
    withhold ratification of SALT II. The Duma has been talking,
    discussing, and debating SALT II for 6 years. Would you care to
    enlarge on the Russian part of this equation?
        Mr. Weinberger. Well, I think, first, the Russians have a
    great many nuclear weapons, intercontinental and intermediate
    range ballistic missiles. I have seen figures ranging up to
    22,000 to 23,000 warheads and probably somewhere in the
    neighborhood of 7,000 to 9,000 deliverable vehicles. But I
    think that it is widely known that they have these.
        It is also widely known that they have been working on
    defenses, starting almost within a year after signing the ABM
    Treaty. I think that they have probably a number of problems.
    Their maintenance conditions are very poor. Their morale is
    very poor. Soldiers have not been paid for months, and they
    live in conditions that we would not put hardened criminals in.
        But they are there and the missiles are there. We have
    known this for a long time. It is, I think, folly not to take
    every step we possibly can to defend ourselves against a
    possible attack from there, from China, from North Korea, from
    Iran and Iraq. As we have seen and as you mentioned correctly,
    India and Pakistan are deploying them. North Korea has fired a
    three stage missile over Japan. While in their first one only
    two stages worked, but a three stage missile is a very
    sophisticated weapon, and indicates a capability that, as they
    work further on it, will enable them to hit the Western United
    States and, ultimately, other parts of our country.
        It seems to me that we have the capability of developing a
    defensive system that can be effective. It is the height of
    folly, criminal folly, I would say, not to work on it and not
    to deploy it.
        Senator Hagel. What is your opinion regarding the Newly
    Independent States from the former Soviet Union, the CIS
    States, as to would they be bound by the provisions of the 1972
    ABM Treaty that the United States negotiated with the former
    Soviet Union?
        Mr. Weinberger. I don't think so, sir. Now that is an off-
    hand legal opinion. But the Soviet Union is gone and the Soviet
    Union was the official party to the treaty. Under every
    interpretation that I have ever seen, with one party dead that
    means that the contract, treaty, agreement, or whatever it may
    be, under those circumstances is nullified and is no longer in
    effect.
        However, the Clinton administration is attempting, as we
    said, to bring in four new members of the former Soviet Union
    and have them all be part of this. This would simply make it
    more difficult for us ever to get out of it and would make it
    more of a tempting threat to the Russians and the three other
    countries of the former Soviet Union to violate the treaty
    since we will be announcing that we will not have any defenses.
        Senator Hagel. Would you develop for this committee some of
    the specific perspectives that you mentioned were in the
    Rumsfeld Commission's work on the timing of the threat from
    Iran, North Korea, and other nations? You know better than
    anyone, Mr. Secretary, that intelligence communities in this
    country constantly have understated and underestimated the
    ability of these rogue nations to come up with these
    sophisticated weapons.
        Mr. Weinberger. Mr. Chairman, I think that for one reason
    or another the threat has been seen by the intelligence
    community or members of it to be much farther out in time than
    I would see it. And I think the Rumsfeld Commission performed
    an enormously valuable service by pointing out that the
    assumptions behind some of the intelligence community's
    analyses were that countries like Iran, Iraq, and North Korea
    did not have the indigenous capability to develop these weapons
    by themselves and that, therefore, in order to acquire that
    kind of capability, it would be anywhere from 9, 10, 12, or 15
    years before they posed any kind of threat.
        Well, even 12 or 15 years seems to me to be a comparatively
    short time the way things go.
        But what the intelligence community's analyses did not
    point out was that these countries are not limited by their
    indigenous capability. They are perfectly capable of buying, as
    Russia is perfectly capable of selling and has sold, valuable
    components to these rogue countries that will enable them to
    get these kinds of weapons much sooner.
        It is very clear from North Korea's testing and exploding
    the three stage weapon that they have proceeded much farther
    along this path than any of the intelligence analyses
    indicated. I think the estimate now has been reduced to 4 to 5
    years. I would think that, if they put their minds to it--which
    they would do since we have said we will not have any defenses,
    thereby encouraging them to do so--they could get it in
    probably a couple of years.
        We don't know what they are doing. We don't know what they
    are doing underground. We found out when the U.N. inspectors
    were finally permitted, in response to Saddam Hussein's various
    solemn promises, to look at a few things, that Iraq had a lot
    more underground than we knew about. It was not destroyed in
    the aerial war because it was underground.
        So I don't think anyone can say with any confidence how far
    along they are. It is not an area in which I would feel there
    is much room for error. I don't think that we could shrug our
    shoulders later on and say well, we didn't quite give you the
    accurate information on that, we made a mistake. That might
    comfort them in a few years but I don't think it would comfort
    anybody else.
        I think in this case we have to use the worst case
    assumption, and that is that I think it is quite possible that
    some extremely devastating weapons could be put together by
    essentially hostile countries in anywhere from 2, to 3, to 4
    years. That is a very, very short time.
        It is sooner than it would take us to get an effective
    system now that we have postponed all of the active research
    and development work that had started in 1983.
        Senator Hagel. Would you care to frame up your perspective
    on what is going on in India and Pakistan with their nuclear
    efforts?
        Mr. Weinberger. Well, they have been working on this for a
    long time, Mr. Chairman. I was struck--I would not say amused--
    but I was struck by the fact that, when India exploded a
    nuclear device, as it is always called in the press, there was
    great shock and astonishment expressed by the administration a
    few months ago. What surprised me--what I found to be rather
    ironic, was that the DJP Party in India that is in office now
    had made it a point of their campaign that they were, indeed,
    going to deploy and test nuclear weapons. That was one of the
    promises on which they were elected.
        I can only assume that the failure to accept that was based
    upon the theory that some people never keep campaign promises.
        But this was a campaign promise. They kept it and they
    exploded the ``device,'' and it should not have been a surprise
    to anybody. Pakistan's following was a perfectly normal thing
    to expect because Pakistan has to demonstrate that it, too, has
    the same capability as a means of trying to keep their country
    defended.
        Senator Hagel. All of these are obviously inter-related
    pieces to the broader issue that we are dealing with today and
    will continue to deal with over the next few weeks in hearings
    on ABM. But I also would welcome your perspectives on China.
        We have many dynamics that are part of our relationship
    there, especially now in light of the Los Alamos issue which
    has complicated, further complicated, an already complicated
    relationship. Focus, if you would, Mr. Secretary, on the
    nuclear capability and where you think China may be headed with
    that capability for their own defense interests.
        Mr. Weinberger. Well, we know and I think it is generally
    accepted that the People's Republic has about 400 missiles of a
    range that is possible to reach areas of the United States and
    other countries, of course.
        They have had these and have been working on them for quite
    a long time. They have had a lot of technical difficulties with
    launching, and that is one of the things that we helped them
    with by the transfer of technology and by the technology that
    was stolen.
        We also helped them improve their guidance, the accuracy of
    their guidance systems which, of course, is tied to the
    accuracy of the missile. And we helped them, again, I think
    inadvertently, with their theft of technology that had enabled
    us to design and deploy a very effective, small warhead, the W-
    88. They have obtained this.
        Now I know that Zlu Ronji said that they could do all of
    these things by themselves, so they would not have any
    necessity to steal them. But the simple fact of the matter was
    they did want and need them and they did obtain them. I am not
    privy to exactly how they got them, but they did get them.
        Senator Hagel. I will exercise the Chair's prerogative
    here, Mr. Secretary, and veer somewhat away from ABM to Kosovo.
    I noted a piece that you wrote in the New York Times a few days
    ago which I thought was on target--speaking of military
    capability.
        I would welcome for the record and this committee would
    welcome any thoughts you might have on where we are in Kosovo
    and what we must do to pursue our goal there.
        Mr. Weinberger. I certainly would be glad to do that, Mr.
    Chairman. I don't have any special knowledge or access to very
    much intelligence information anymore. But I do have a lot of
    strongly held opinions--some people call them prejudices--and I
    will be glad to discuss those, if you want me to, briefly.
        I think that in Kosovo we are in a war situation. What
    bothers me more than anything else is it strikes me as having
    great similarity to the situation in Vietnam, which was the
    first time we ever went into a war not intending to win. We
    sent about 565,000 American troops to a war that we did not
    consider important enough to win, that we did not consider
    important enough to support them to win, to put in the
    resources to win. We did not intend to win it.
        It strikes me that that is what we are doing now in putting
    in resources to attack Serbia. I think we are 2 to 3 years late
    about it. I think we should have done it when Serbia first
    practiced their most brutal atrocities in Bosnia. I think it is
    proper that we are in Kosovo and proper that we are now trying
    to stop Milosevic.
        But what disturbs me is that I have not seen, among all of
    the wide variety of statements of the administration as to what
    their aims are, what their goals are, I have not seen any
    mention of the word victory or any definition of the term
    victory.
        We have been told that we are trying to degrade Milosevic's
    military capability. Of course, you do that every time you hit
    a truck or a tank. We are told that the aim is to bring him
    back to the negotiating table. If that succeeded, he would make
    all of the same kinds of promises he always makes and always
    breaks. But we have never said anything about getting him out
    of power or doing anything except negotiate with him. This, I
    think, is not a solution that is going to solve this thing nor
    is it going to produce any kind of permanent change. Nor is it
    going to get the Kosovars back into their own country.
        When you displace close to a million people, and it is now
    something over 900,000 people who were forcibly displaced under
    the most brutal conditions imaginable, including kidnapping,
    pillage, robbery, rape and all the rest, which we have seen
    every day and every night--these are not just television shots,
    these are conditions that are actually happening, as we know
    from other information--you have a situation that can only be
    corrected if you go to the root of it, go to the heart of it.
        I thought you had an excellent piece, Mr. Chairman, in one
    of the papers, the title of which was ``The Exit Strategy: The
    Only Exit Strategy Is Victory.''
        We hear a lot of very stilted terminology about exit
    strategy and that we might go in in a permissive environment. I
    suppose this means that you get formal permission to invade
    somebody. But it just seems to me to be a little difficult to
    accomplish.
        But we do not seem to have any intention to bring this
    thing to a head and complete it the way it needs to be
    completed. There have even been some suggestions that solutions
    must be developed that do not humiliate Serbia or Milosevic. We
    never really worried about not humiliating Tojo, or Hitler, or
    some of these other people that we had to attack. It seems to
    me that there is the same kind of situation now.
        So I think we should set up a set of aims that makes it
    very clear that, first of all, Milosevic has to go. This is
    because I think as long as he is there, he will promise
    anything, will lie, and will break his word as soon as he
    thinks it is safe to do so.
        I think that the Kosovars have to be allowed to return
    peaceably. I think most of their homes will have to be rebuilt
    and the damage repaired. I think there will ultimately have to
    be some kind of army of occupation put together by NATO, not by
    us and not by the U.N. I don't think we need to participate to
    any great extent in that. But it needs to be an army that is
    there, not a peacekeeping army, but an army of occupation, to
    make sure that ultimately Serbia gets the kind of government
    that can live in peace with its neighbors.
        This clearly involves eliminating Milosevic from control.
    We did it in a much smaller scale, an infinitely smaller scale,
    in Panama. Mr. Noriega is in jail and I think Mr. Milosevic
    should be in jail, either awaiting execution or serving a life
    sentence as a war criminal, which is what we did with a number
    of other people in that category in other wars.
        Senator Hagel. Mr. Secretary, as always this panel is
    grateful. I have occasionally referred to you as one of the
    preeminent public servants of our time. I think my colleagues
    have the same appreciation and definition for what you have
    given our country, Mr. Secretary, over many years.
        Once again, you continue to contribute and we are again
    grateful.
        We will look at the record and if there is any
    clarification that we need, we will get back to you. But, as
    always, we are grateful.
        If there are any additional thoughts or comments you would
    like to make, please do so.
        Mr. Weinberger. I just think the hearings are a great
    public service, most necessary at this time, and, really, to my
    knowledge, the first time we have started to consider that the
    only way we can have any kind of effective defense is to step
    out of this ABM Treaty, and no longer be bound by it. This
    would be under the terms stated in the treaty itself.
        I think it is vital to start serious debate and
    consideration of that topic now, and, as I say, I think it is a
    great public service that the committee is launching on this
    path.
        Senator Hagel. Mr. Secretary, it was nice to see you. Thank
    you.
        Mr. Weinberger. Thank you very much, Senator.
        [Whereupon, at 10:40 a.m., the committee adjourned, to
    reconvene at 9:30 a.m., April 20, 1999.]

                CURRENT AND GROWING MISSILE THREATS TO THE U.S.

                                  ----------

                            TUESDAY, APRIL 20, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:31 a.m., in
    room SD-562, Dirksen Senate Office Building, Hon. Chuck Hagel
    presiding.
        Present: Senators Hagel and Frist.
        Senator Hagel. Good morning.
        Today's hearing is the second of a series of hearings
    focused on the threat of ballistic missile attacks on the
    United States, the urgent need for missile defenses and the
    need for the United States to disassociate itself from an
    obsolete arms control agreement, the 1972 Anti-Ballistic
    Missile Treaty.
        This morning we have three distinguished witnesses. The
    first panel will consist of Dr. James Schlesinger. Dr.
    Schlesinger has held many important senior national security
    positions in the U.S. Government. He has served as Director of
    Central Intelligence, Secretary of Defense and Secretary of
    Energy. Presidents of both parties have repeatedly sought Dr.
    Schlesinger's counsel and assistance.
        Dr. Schlesinger, we are very proud and pleased to have you
    with us this morning.
        On the second panel is Dr. William Schneider, who was a
    member of the Rumsfeld Commission and is an adjunct fellow at
    the Hudson Institute. Dr. Schneider is also the president of
    International Planning Services and is the former Under
    Secretary of State for Security Assistance.
        Mr. Secretary, when you come to the table, we will be
    grateful for your presence and contribution as well.
        Our third witness is the Honorable James Lilley, former
    U.S. Ambassador to Korea and China. He has a long and
    distinguished career in intelligence, national security, and
    diplomacy.
        Ambassador Lilley is currently a resident fellow and
    director of Asian Studies at the American Enterprise Institute.
    I assume he will be along shortly. I do not see him yet, but I
    know that he will be here.
        America's national security lies in the interests of
    preventing the proliferation of ballistic missile and warhead
    technology. According to unclassified information from the
    Defense Intelligence Agency, at least 10 countries have
    operational ballistic missiles with ranges greater than 500
    kilometers. Within the next decade, that number will grow again
    by half, to 15.
        Many of these nations--Iran, Iraq, Libya, Syria, and North
    Korea--are clearly hostile to the United States. Two things are
    certain. First, any of the countries I have just mentioned
    could launch a ship-based ballistic missile strike against a
    U.S. city today.
        I wish to be clear on this point. Every U.S. coastal city,
    from Seattle to Bangor, Maine, faces the present and growing
    danger of ballistic missile attack.
        Last year, the Rumsfeld Commission warned that the sea-
    launch option is very real and very plausible.
        Similarly, our intelligence community has warned that
    forward basing from dedicated vessels or freighters could pose
    a missile attack threat to the United States in the near-term.
        The ranges and capabilities of ballistic missile programs
    are growing rapidly, largely due to the assistance given these
    programs by Russia and China. This will translate into the
    achievement of ICBM capability for several countries.
        One country, in particular, is in the final stages of
    developing an ICBM. Last August, North Korea stunned everyone
    by launching a version of the Taepo Dong-I missile, which had a
    third stage. While we have known about the Taepo Dong-I missile
    for several years, we did not expect North Korea to stack a
    third stage on it to give the system intercontinental range.
        The U.S. intelligence community has warned that with this
    missile, North Korea has the ability to deliver small payloads
    to ICBM ranges.
        Moreover, North Korea has worked on the Taepo Dong-I with
    implications for its other, even longer-range, missile, the
    Taepo Dong-II. As we have learned more about this program, we
    have become increasingly concerned that the missile could be
    used to attack cities in Alaska and Hawaii.
        Now the U.S. intelligence community judges that with the
    staging technology demonstrated on the Taepo Dong-I, North
    Korea's Taepo Dong-II could probably reach the rest of the
    United States, depending on the size of its payload.
        In other words, North Korea is on the verge of fielding a
    ballistic missile capable not only of striking my home State of
    Nebraska, in the exact middle of the United States, but
    anywhere in the United States.
        Just as troubling, the Rumsfeld Commission warns that Iran
    could join North Korea in its ability to inflict major
    destruction on the United States within about 5 years of a
    decision to acquire such a capability.
        All of this, of course, is in addition to the omnipresent
    threat of deliberate or accidental attack against the United
    States by Russia or China, both of whom have numerous ballistic
    missile capabilities and both are capable of destroying U.S.
    cities.
        Obviously, with such a serious threat growing steadily
    worse, one would assume that the United States would have
    deployed long ago a missile defense system to protect the
    American people. One would assume that the Federal Government
    would have made certain by now that the United States is never
    exposed to the threat of ballistic missile attack.
        Well, such assumptions are wrong. The United States has no
    defense against this threat.
        This administration, in fact, aggressively blocked every
    effort by the Congress to implement a national missile defense
    system, to the point of vetoing an entire defense bill because
    it mandated the immediate deployment of a missile shield.
        The fact is the United States is vulnerable to nuclear and
    biological tipped missiles.
        This morning's two panels will focus on this issue and the
    tangential issues that accompany missile defense. Again, on
    behalf of my colleagues on the committee and Chairman Helms, we
    are grateful that the three of you would take your time to come
    up to share with us your thoughts and make a contribution to
    this effort.
        With that, let me now ask the former Secretary of Energy
    and Defense, and former CIA Director--a complete public
    servant--Jim Schlesinger, for his testimony.
        Mr. Secretary, welcome.

      STATEMENT OF HON. JAMES R. SCHLESINGER, FORMER SECRETARY OF
    DEFENSE, FORMER SECRETARY OF ENERGY, AND FORMER DIRECTOR OF THE
               UNITED STATES CENTRAL INTELLIGENCE AGENCY

        Dr. Schlesinger. Thank you so much, Mr. Chairman.
        Mr. Chairman, I appreciate the invitation of the committee
    to discuss the possibilities of ballistic missile attack
    against the United States and the defenses that we might deploy
    to protect against such an attack.
        In the time limited, I can, of course, touch only on a few
    major points. First, the prominent political role of the United
    States in the world makes it a prime target for resentful
    nations. Its military preponderance will spur other nations to
    seek asymmetrical ways of threatening to inflict pain on this
    country, thereby hoping to limit our response to actions on
    their part.
        There is a variety of ways to inflict such pain and, thus,
    a variety of potential threats. Ballistic missile attack is one
    prominent possibility. But there are others, including cyber
    attack, chemical attack, and biological attack.
        As you know, the Department of Defense is devoting
    increasing attention to such possible attacks. It has recently
    established the Defense Threat Reduction Agency and the Threat
    Reduction Advisory Committee.
        Among such possible threats, that of ballistic missile
    attack is the most dramatic, if not necessarily the one of
    highest probability. The potential is there already and will
    likely grow in the near-term.
        As you mentioned, Mr. Chairman, the recent test of the
    Taepo Dong missile by North Korea is but an harbinger of what
    will inevitably come. In both South Asia and Southwest Asia,
    ballistic missile capabilities have already been demonstrated
    and are undergoing rapid development.
        While such capabilities are not of intercontinental range,
    they could threaten American bases or American allies and could
    be transported closer to the American mainland to make them
    potential threats to the mainland.
        Despite international efforts to restrict the spread of
    technology, it is spreading and will do so increasingly. Unlike
    some of the other potential threats referred to earlier, the
    ballistic missile threat will remain a national threat rather
    than a threat of terrorist subgroups.
        Still, the number and variety of such potential threats
    will grow and, thereby, foster a high degree of uncertainty,
    contrasting to the cold war, when the source of the threat was
    clearly known.
        I stress both this potential and this variety since it
    underscores the complexity and some difficulties in deploying
    appropriate, even if limited, missile defenses.
        Third, to achieve a suitable ballistic missile defense, one
    that could cope with a limited attack, should, in my judgment,
    be a major objective in U.S. defense policy. Both Houses of
    Congress have now passed legislation endorsing a policy of
    near-term deployment. Extended as the controversy over that
    legislation may have been, now comes the truly difficult part--
    determining the architecture of the ballistic missile defense
    to be deployed. While we seek a thin area defense, we must
    avoid just any defense, especially one designed against a
    narrowly defined threat.
        Any such defense could turn out to be simply a token. The
    worst possible outcome would be a limited defense focused too
    narrowly on a single threat and one that could readily be
    circumvented.
        It is crucial that we not confuse a ballistic missile
    defense with a relatively simple weapon system, such as the F-
    15. A ballistic missile defense would be a complex system of
    systems, selected from a range of possible deployments,
    combinations of sensors, and capabilities of interceptors. The
    choice of systems architecture is crucial. One could all too
    easily wind up with an unduly constrained system, lacking
    capability against the range of emerging threats.
        In this connection, I suggest that we should be wary of the
    very limited system proposed for deployment in Alaska or by
    some in North Dakota, which might deal with a rudimentary
    threat, let us say, from North Korea, and with little else.
        The architecture of any system chosen for deployment should
    be subject in advance to rigorous technical analysis. Above
    all, it should not be so constrained as to lack the capability
    for growth to cope with the growing variety of threats.
        In choosing among alternative architectures, systems
    adaptability and flexibility should be prerequisites.
        In choosing a system architecture, we must be assured in
    advance that the system can be adapted to the broad range of
    threats which may emerge. Consequently, we should avoid any
    impulse leading to a rush to acquisition.
        Fourth, in this connection, we must remain alert to the
    possibility mentioned in the Rumsfeld Commission report, that,
    before nations can develop ICBM's capable of reaching the
    United States, they could deploy shorter-range ballistic
    missiles on ships. You mentioned this in your opening
    statement, Mr. Chairman.
        A ballistic missile defense, let us say, to Alaska, could
    not cope with such a threat. In selecting a system
    architecture, we must remain mindful of such a possibility so
    that some hostile country does not get the impression that it
    could have a free ride.
        In this connection also, we must be alert to and exploit
    the possibilities for intelligence. Some of the South Asian
    nations, including those we term rogue states, have limited
    shipbuilding capability or, for that matter, limited sea-faring
    experience. We should be alert to the construction or the
    modification of ships that could be used for this purpose and
    to the possibility of collecting information from the
    multinational crews that might be hired for such a purpose.
        Gathering such intelligence would create the opportunity of
    interdiction in a number of forms. But such possibilities drive
    home the point that what we must avoid is a ballistic missile
    defense deliberately constrained and focused on a narrowly
    defined threat.
        Fifth, this brings us, Mr. Chairman, to the controversial
    issue of the restraints imposed by the ABM Treaty of 1972, as
    modified.
        An adequate defense cannot be attained within the present
    framework of those constraints. Consequently, to deploy a
    suitable defense would require either the modification or the
    abrogation of the existing treaty.
        I should observe that I agree with some of the critics who
    believe that we are not legally bound by a treaty with a State
    that has simply disappeared and has disintegrated into its
    component parts.
        Nevertheless, the treaty does exist. It is part of the
    international environment and, irrespective of its legal force,
    there are political advantages as well as disadvantages in its
    continuation.
        Unquestionably, we would pay a political price in simply
    abrogating the treaty, as some urge. In particular, we should
    not casually damage our political relationship with Russia in a
    way that simultaneously would damage the Russian prestige and
    make the Russians less cooperative with us. Particularly this
    is so given the presently disturbed relationships arising from
    differences reflecting Russia's long-term association with
    Serbia.
        Nevertheless, Mr. Chairman, we must now allow ourselves to
    be precluded from deploying suitable defenses by the treaty in
    its present form. What I would suggest is that the United
    States move firmly toward deployment of a suitable and adequate
    thin area defense, preferably within the framework of the
    treaty. This would require substantial modification to permit a
    system architecture that could deal with the emerging range of
    threats.
        But we must bear in mind that the Russians have a much
    greater stake in the preservation of the ABM Treaty than do we.
    It is that treaty and other arms control agreements with the
    United States that provide much of Russia's continuing
    international prestige.
        A modification of the ABM Treaty, as opposed to its
    abrogation, which permitted the United States to deploy a thin
    area defense in a manner that does not challenge a continuing
    Russian retaliatory capability would seem to be in Russia's
    interest, particularly so as Russia itself may come to be
    threatened by spreading nuclear capabilities among rogue
    nations and others.
        Yet in moving toward modification of the treaty, we must
    convey to the Russians that we are firm in our commitment to
    deploy an efficient, if limited, defense and that we must have
    treaty modification sufficient to allow a flexible and
    adaptable architecture. To negotiate for something less, which,
    regrettably, would be an easy temptation, might leave us in
    that position of deploying a fixed, limited, and ultimately, a
    virtually token defense. Sufficient modification must be our
    clear objective--not minimal modification that would leave us
    with little more than a token defense.
        Sixth, and finally, in the period ahead, a limited nuclear
    attack on the United States regrettably will become a growing
    possibility. It could come from a variety of perpetrators. I
    should have said a limited missile attack on the United States.
    It could come from a variety of perpetrators. Because of the
    range and the novelty of such possibilities, it will likely be
    difficult to achieve an early assessment of missile buildup or
    pending attacks among the candidate nations. We should,
    therefore, move with all deliberate speed toward an effective
    defense of the United States against such missile attacks.
        But we must also remember that such an attack need not come
    primarily from ballistic missiles. Most notably, we must
    simultaneously be alert to the proliferation of cruise missiles
    and move toward an effective defense against cruise missiles,
    which will likely constitute the next turn in the road.
        Thank you, Mr. Chairman. I would be delighted to answer any
    questions.
        [The prepared statement of Dr. Schlesinger follows:]

                Prepared Statement of Hon. James R. Schlesinger

        Mr. Chairman, Members of the Committee:
        I appreciate the invitation of the Committee to discuss the
    possibilities of ballistic missile attack against the United States--
    and the defenses that we might deploy to provide protection against a
    limited attack. In the time allotted, I can, of course, touch only on a
    few major points
        1. The prominent political role of the United States in the world
    makes it a prime target for resentful nations. Its military
    preponderance will spur other nations to seek asymmetrical ways of
    threatening to inflict pain on this country, thereby hoping to limit
    our response to actions on their part. There are a variety of ways to
    inflict such pain--and thus a variety of potential threats. Ballistic
    missile attack is one prominent possibility. But there are others
    including cyber attack, chemical attack, and biological attack. As you
    know, the Department of Defense is devoting increasing attention to
    such possible attacks. It has recently established the Defense Threat
    Reduction Agency and the Threat Reduction Advisory Committee.
        2. Among such possible threats, that of ballistic missile attack is
    the most dramatic, if not necessarily the one of highest probability.
    The potential is there already and will likely grow in the near term.
    The recent test of the TAEPO-DONG missile by North Korea is but a
    harbinger of what will inevitably come. In both South Asia and
    Southwest Asia ballistic missile capabilities have already been
    demonstrated--and are undergoing rapid development. While such
    capabilities are not of intercontinental range, they could threaten
    American bases or American allies and could be transported closer to
    the American mainland--to make them potential threats. Despite
    international efforts to restrict the spread of technology, it is
    spreading and will do so increasingly. Unlike some of the other
    potential threats, referred to earlier, the ballistic missile threat
    will remain a national threat rather than that of terrorist subgroups.
    Still the number and the variety of such potential threats will grow--
    and thereby foster a high degree of uncertainty contrasting to the Cold
    War, when the source of the threat was clearly known. I stress both
    this potential and this variety, since it underscores the complexity
    and some difficulties in deploying appropriate, even if limited,
    missile defenses.
        3. To achieve a suitable ballistic missile defense--one that could
    cope with a limited attack--should in my judgment be a major objective
    in U.S. defense policy. Both Houses of Congress have now passed
    legislation endorsing a policy of near-term deployment. Extended as the
    controversy over that legislation may have been, now comes the truly
    difficult part: determining the architecture of the BMD to be deployed.
    While we seek a thin area defense, we must avoid just any defense,
    especially one designed against a narrowly-defined threat. Any such
    defense could turn out to be simply a token. The worst possible outcome
    would be a limited defense focused too narrowly on a single threat, and
    one that could readily be circumvented.
        It is crucial that we not confuse a BMD with a relatively simple
    weapon-system, such as the F-15. A BMD would be a complex system-of-
    systems, selected from a ranch of possible deployments, combinations of
    sensors, and capabilities of interceptors. The choice of system
    architecture is critical. One could all too easily wind up with an
    unduly constrained system lacking capability against the range of
    emerging potential threats. In this connection, I suggest we should be
    wary of the very limited system proposed for deployment in Alaska,
    which might deal with a rudimentary threat, let us say, from North
    Korea--and with little else.
        The architecture of any system chosen for deployment should be
    subject in advance to rigorous technical analysis. Above all, it should
    not be so constrained, as to lack the capacity of growth to cope with a
    growing variety of threats. In choosing among alternative
    architectures, system adaptability and flexibility should be
    prerequisites. In choosing a system architecture, we must be assured in
    advance that that system can be adapted to the broad range of threats
    which may emerge. Consequently, we should avoid any impulse leading to
    a ``rush to acquisition.''
        4. In this connection, we must remain alert to the possibility
    mentioned in the Rumsfeld Commission report that, before nations can
    develop ICBM's capable of reaching the United States, they could deploy
    shorter-range ballistic missiles on ships. A BMD with circumscribed
    sensors and confined, let us say, to Alaska could not cope with such a
    threat. In selecting a system architecture, we must remain mindful of
    such a possibility--so that some hostile country does not get the
    impression that it could have a free ride.
        In this connection also, we must be alert to and exploit the
    possibilities for intelligence. Some of the South Asian nations,
    including those we term rogue states, have limited shipbuilding
    capacity or for that matter seafaring experience. We should be alert to
    the construction or the modification of ships that could be used for
    this purpose--and to the possibility of collecting information from the
    multi-national crews that might be hired for such a purpose. Gathering
    such intelligence would create the opportunity of interdiction in a
    variety of forms. But such possibilities drive home the point that what
    we must avoid is a BMD deliberately constrained and focused on a
    narrowly-defined threat.
        5. This brings us to the controversial issue of the restraints
    imposed by the ABM Treaty of 1972, as modified. An adequate defense
    cannot be attained within the present framework of those restraints.
    Consequently, to deploy a suitable defense would require either
    modification or abrogation of the existing treaty. I should observe
    that I agree with some of the critics who believe that we are not
    legally bound by a treaty with a state that has simply disappeared and
    has disintegrated into its component parts. Nonetheless, the treaty
    does exist. It is part of the international environment and,
    irrespective of its legal force, there are political advantages as well
    as disadvantages in its continuation. Unquestionably we would pay a
    political price in simply abrogating the treaty, as some urge. In
    particular, we should not casually damage our political relationship
    with Russia--in a way that simultaneously would damage their prestige
    and make the Russians less cooperative with us. Particularly, this is
    so given the presently disturbed relationship arising from differences
    reflecting Russia's long-term association with Serbia.
        Nevertheless, we must not allow ourselves to be precluded from
    deploying suitable defenses by the treaty in its present form.
        What I would suggest is that the United States move firmly toward
    deployment of a suitable and adequate thin area defense preferably
    within the framework of the treaty. This would require substantial
    modification to permit a system architecture that could deal with the
    emerging range of threat. But we must bear in mind that the Russians
    have a much greater stake in the preservation of the ABM Treaty than do
    we. It is that treaty--and other arms control agreements with the
    United States--that provides much of Russia's continuing international
    prestige. A modification of the ABM Treaty (as opposed to its
    abrogation) which permitted the United States to deploy a thin area
    defense in a manner that does not challenge a continuing Russian
    retaliatory capability would seem to be in Russia's interest--
    particularly so as Russia itself may come to be threatened by spreading
    nuclear capabilities among rogue nations and others.
        Yet in moving towards modification of the treaty, we must convey to
    the Russians that we are firm in our commitment to deploy an efficient,
    if limited, defense and that we must have treaty modification
    sufficient to allow a flexible and adaptable architecture. To negotiate
    for something less (which regrettably would be an easy temptation)
    might leave us in that position of deploying a fixed, limited, and,
    ultimately, a virtually token defense. Sufficient modification must be
    our clear objective--not minimal modification that would leave us with
    little more than a token defense.
        6. In the period ahead, a limited missile attack on the United
    States regrettably will become a growing possibility. It could come
    from a variety of perpetrators. Because of the range and the novelty of
    such possibilities, it will likely be difficult to achieve an early
    assessment of missile buildup and pending attacks among the candidate
    nations. We should, therefore, move with all deliberate speed toward an
    effective defense of the United States against nuclear attack. But we
    must also remember that such an attack need not come primarily from
    ballistic missiles. Most notably, we must simultaneously be alert to
    the proliferation of cruise missiles, and move toward an effective
    defense against cruise missiles--which will likely constitute the next
    turn in the road.

        Senator Hagel. Mr. Secretary, thank you.
        If I could call your attention to the last page of my copy
    of your testimony, I will just quote a sentence back to you,
    Mr. Secretary. You say, ``What I would suggest is that the
    United States move firmly toward deployment of a suitable and
    adequate thin area defense, preferably within the framework of
    the treaty,'' the ABM 1972 treaty.
        Would you explain that in your reference to ``within the
    framework of the treaty?''
        Dr. Schlesinger. Mr. Chairman, as you will recall, the
    original treaty of 1972 called for two sites. In 1974, the
    treaty was modified by agreement between the Soviet Union and
    the United States to reduce that to one potential site. We, of
    course, ultimately decided to have no sites.
        But the treaty was modified in the past; it can be modified
    in the future with the collaboration of the other party, in
    this case, Russia.
        We must bear in mind that a one site defense probably will
    be inadequate for the growing array of threats, and we need not
    be constrained, we should not be constrained, with limitations
    on space based sensors. For example, even the limited defense
    that we are talking about will depend upon SBIRS-LOW, the Space
    Based Infra-red Satellite System. Otherwise, we will not be
    able to detect in sufficient time the warheads that might be
    attacking the United States.
        Therefore, I think we need to modify the treaty to permit a
    minimum number of sites, but sufficient to protect the
    continental United States as well as Alaska and Hawaii and to
    adjust our research and development plans and potential
    deployment plans with regard to sensors so that we have a full
    understanding of any threats that might be directed against the
    United States.
        That will require a substantial modification of the treaty,
    but it should not be so substantial that it would deny to
    Russia what the Russians clearly value, and that is the
    continued existence of a retaliatory capability against the
    United States--indeed, probably the only retaliatory capability
    in the world, including China.
        Senator Hagel. Mr. Secretary, what if the Russians prefer
    not to renegotiate the ABM Treaty?
        Dr. Schlesinger. That is what I referred to, Mr. Chairman,
    when I said we must be very clear that we are firm on
    deployment as we develop the technology. As I have indicated,
    it is very much in the Russian interest to permit an adjustment
    of the treaty, as we had in 1974, to adjust to new
    circumstances. If the Russians are unwilling to do that, then I
    think we have no alternative but to move toward abrogation.
        Senator Hagel. Mr. Secretary, you referred on a number of
    occasions in your testimony to the urgency here. In your
    opinion, how long would you give the Russians to get serious
    about negotiating the necessary change in the ABM Treaty before
    you would say to the President we must move forward with or
    without the Russians?
        Dr. Schlesinger. Well, Mr. Chairman, ideally, I would start
    now and I would put them on notice that we are developing
    technology for a thin area defense and that it is not a threat
    to their retaliatory capability; that we are determined to do
    so and that the precise details will come later on as we know
    more about the technologies that we develop. But we must put
    them on notice now that that is the direction in which we are
    going and we should not be equivocal about putting them on
    notice.
        I am fearful that we may go in with a kind of tenuous
    ``wouldn't you mind our adjusting the treaty somewhat,'' and
    the Russians, under those circumstances, would be very much
    inclined to say no. They must be clear in their minds that we
    are determined to make that adjustment.
        Within a period of I would hope 18 months we would have a
    better feel for the technologies that we would exploit. Then we
    could go to more precise definition of how that treaty should
    be adjusted.
        Alternatively, we could say we want to have three sites and
    we want to have freedom to explore any kind of sensors, whether
    they are space based or ground based, and we could do that now.
    That would provide greater latitude for any set of technologies
    that we would choose to deploy.
        Senator Hagel. Mr. Secretary, you have been involved over a
    good many years in defense issues. You mention in your
    statement that we must not limit ourselves to a technologically
    limited base of options here.
        Would you care to explain and enlarge upon that, because it
    very much cuts through the issue with the Russians and all the
    other dynamics here? How would we do that?
        Dr. Schlesinger. That is quite correct, Mr. Chairman. The
    danger in negotiating with the Russians is that we make a
    limited adjustment, one time, that permits us to have a limited
    defense that turns out to be a token defense that we deploy in
    Alaska or in North Dakota at one site with a stringent
    limitation on the sensors that we could employ.
        If that were the case, we might be able to stop a missile
    attack from North Korea, which will remain limited for some
    time.
        I doubt that we would be able to stop even a limited
    attack, let us say, from China, or an accidental launch from
    Russia because they will be moving toward penetration aids. We
    need to have a system sufficiently sophisticated that it can
    deal with at least simple penetration aids by another country.
        As you mentioned in your opening statement, there is the
    whole problem of protecting against launch vehicles, launched
    from ships offshore.
        Obviously, if we have a system in Alaska and a ship is
    moved off the coast of Mexico, that system will have very
    limited capability to protect the United States. We need to
    have a capability that looks in all azimuths.
        Senator Hagel. With your current knowledge of the
    technology available, do you believe that it is feasible that
    we can, in fact, achieve some of the more limited dynamics of
    what you are talking about here within a relatively short
    period of time?
        Dr. Schlesinger. We can achieve--I trust that we can
    achieve a limited defense within a reasonably short period of
    time if we are talking about 7 or 8 years to deployment.
        Senator Hagel. Seven or 8 years to deployment?
        Dr. Schlesinger. Seven or 8 years to deployment.
        The problem that we face, I think, is that there must be
    the capability for growth in that initially deployed system so
    that we are not constrained to dealing with whatever the
    limited threat that that initial system could deal with. That
    is part of the problem of negotiating effectively with the
    Russians or, if they won't play the game, ultimately moving
    toward abrogation of the treaty.
        Further, we don't have the technology at this time. The 6
    most recent tests of the THAAD missile have been, to say the
    least, disappointing. Before we begin to deploy, we should have
    a firm grasp on the technology. Nothing would be worse, it
    seems to me, than to spend a great deal of money on a
    deployment of a system that turns out to fizzle, thus
    disgracing the concept as well as wasting the money.
        Senator Hagel. Mr. Secretary, what should we be doing with
    the Chinese in this area of missile defense? Should we be
    negotiating a treaty, bringing them into talks? How should we
    be working with the Chinese?
        Dr. Schlesinger. I think that, once again, we have to make
    clear to the Chinese, and they are very reluctant to accept
    this--far more reluctant, I believe than Russia, even though
    China is not a signatory to the ABM Treaty and, therefore, does
    not have the legal rights that Russia has--they are far more
    reluctant to see this development because it would deny to them
    the capability to use their missile forces against Japan,
    Taiwan, Korea, and the like.
        I think that we must recognize that in our deployments in
    the Western Pacific we have much of our forces tied up in very
    limited real estate, small bases that are highly vulnerable to
    attack; and that, therefore, we need to protect those limited
    bits of real estate against a missile attack; and that we are
    not prepared, we should inform the Chinese, merely to
    propitiate them and allow Okinawa, let us say, to remain
    vulnerable to attack; that we believe that it is necessary, not
    only from the standpoint of our own interests but from that of
    the overall security and stability in Asia, for us, when we
    have the technology, to deploy defenses; and that we would be
    deploying defenses that would protect our bases in the Pacific
    and would include in that protection of Japan, whether or not
    they are pleased to hear that; and that it would protect South
    Korea as well.
        The delicate problem is the subject of Taiwan. I think that
    this is a subject on which the least said, the better; that we
    ought to continue to reiterate that, indeed, the United States
    policy, as it has been since 1972, is a one-China policy; that
    we continue to believe that the People's Republic of China and
    the Republic of China will work out their differences
    peacefully; and that we ought not to develop an articulated
    defense.
        Now in the circumstances, the Chinese will understand that
    we, particularly if we deploy the Aegis system, have the
    capability of providing a missile defense for Taiwan. But I do
    not think we should ever say that. The Chinese would regard it
    not only as a threat but as interference, as they say, in their
    domestic affairs.
        Senator Hagel. I suspect Ambassador Lilley will have
    something to say about this as well.
        If I could move a little way from China to the
    subcontinent, where India and Pakistan reside and where we now
    have new members of the club, Mr. Secretary, what kind of
    policy should we be pursuing in regard to Pakistan and India on
    their nuclear efforts?
        Dr. Schlesinger. The policy should be to encourage them to
    have safe retaliatory capabilities, protected retaliatory
    capabilities, so that neither side might be tempted to strike
    first to exploit the vulnerability on the other side.
        I think that we should recognize the developments in South
    Asia between India and Pakistan are, to a greater extent than
    elsewhere, contained in South Asia. It is obvious, I think,
    that the development of missiles and nuclear weapons by Iran
    and/or Iraq would have much broader implications and could not
    be contained within a limited geographic area.
        Pakistan and India, to a large extent, are focused on each
    other and, even though that development has disappointed us in
    terms of the partial failure of our nonproliferation policies,
    it is not as menacing as the nuclear and missile developments,
    say, in North Korea. As North Korea acquires a nuclear
    capability, I cannot see that the Japanese will disregard such
    a development. They would then be tempted to move in that
    direction.
        In the mid-1970's, we headed off South Korea from
    developing nuclear weapons. If North Korea has a nuclear
    capability or missile capability, South Korea, too, would be
    tempted. It would have the capacity for infectiousness.
    Happily, in South Asia there is less capacity for
    infectiousness of the region. Therefore, we ought not to be too
    desperate or to pay too high a price to either of the parties
    merely to get them to collaborate on, let us say, the
    Nonproliferation Treaty or the CTB.
        Senator Hagel. In your opinion, are we pursuing the correct
    policy with North Korea in regard to oil, fuel, food, and
    things that we are putting on the table in order to get entry
    to their facilities?
        Dr. Schlesinger. Well, it has its ironical aspects, Mr.
    Chairman. In order to head off a 60-megawatt reactor, which is
    capable of producing plutonium for several nuclear weapons, we
    are providing 3,000 thermal megawatts over time, which will
    have the capability of producing many, many nuclear weapons.
        The premise of our policy has been that time is on our
    side; that the North Korean regime might implode, collapse; and
    that, therefore, they would never be in a threatening position,
    let's say, in 2010.
        It is an interesting premise, but there is no guarantee
    that that premise is correct. In the last 5 years since we
    signed the agreement with North Korea, it seems to me that the
    premise has become increasingly questionable.
        It was a trade. It was a trade that was pushed by the
    Department of Defense on the premise that it was better to
    freeze temporarily their move toward nuclear capabilities. And
    in the process, we failed to sustain the IAEA, which we had
    induced to make challenge, to demand challenge inspections of
    North Korea.
        That was a trade. I think it was pushed by Secretary Perry
    at the time. It may have been a good trade at the time. It has
    become more questionable, and I think that Secretary Perry's
    new report, as a special envoy, will point to some of the
    difficulties in that limited agreement because of the movement
    of North Korea toward additional facilities that we do not
    fully understand.
        Senator Hagel. Mr. Secretary, you mentioned a moment ago,
    when we were talking about India and Pakistan, the CTBT. Do you
    know if that is a useful treaty for dealing with the India-
    Pakistan situation?
        Dr. Schlesinger. Well, no, in a word.
        The CTBT has been based on a premise that is widespread in
    the scientific community that other nations will develop their
    nuclear capabilities or refrain from developing such
    capabilities based on what the United States does; and that if
    we limit ourselves in testing, then other nations will refrain
    from testing and, therefore, presumably, developing nuclear
    capabilities.
        That is a wholly invalid premise. The motivation for other
    countries to develop nuclear weapons has nothing to do with
    whether or not we test. It has to do with their relations with
    their neighbors. In the case of India, the Indians talk about
    China as well as Pakistan. Pakistan clearly is concerned about
    India, being in a conventionally much weaker position than
    their opponent.
        Whether or not the United States tests is totally
    irrelevant. The notion that Saddam Hussein, Kim Il-sung or Kim
    Jong-il will refrain from nuclear tests because the United
    States has given them up is just, it seems to me, a misleading
    premise.
        Therefore, we ought not to believe that CTBT is an
    effective anti-proliferation device. It is something that
    developed in the 1960's, after the disappointments of the
    Soviet return to nuclear testing, the 50- and 60-megaton
    weapons that were tested in 1961. It led to the partial test
    ban treaty. The desire to have a complete test ban treaty
    acquired a momentum at that time that had some relationship to
    the bipolar world of the 1960's and 1970's, but has very little
    relationship to the set of motivations in this proliferating
    world that we see today.
        Senator Hagel. Thank you.
        Senator Helms asked that I ask this question.
        Would you recommend that the Senate adopt the
    administration's proposed changes to the ABM Treaty relating to
    multilateralization and demarcation?
        Dr. Schlesinger. I think that that would be very
    frustrating. I fear that it would be very frustrating.
        Why is that? It's because I think that we have some
    political advantage in continuing our relation with the
    Russians; and that that would require, if we go ahead with a
    missile defense, a Russian capability to say yes to
    modification of the treaty.
        It seems to me that when you throw in Kazakhstan, Belarus,
    and Ukraine as parties to such a modification, there is the
    possibility of manipulation. To prevent such modification, the
    Russians can urge Belarus--whose relationship with Russia
    reflects the fear in Belarus that the Russians are too damn
    moderate--to thwart any such change in the treaty. It would
    make it unduly complicated to change the treaty.
        We have taken the position that Russia is the true legatee
    of the Soviet Union with regard to strategic forces. And this
    to spread out a negotiation by making all of these parties part
    of the ABM Treaty would, in my judgment, be a mistake.
        Senator Hagel. Mr. Secretary, may I ask you one additional
    question? You can frame this any way you like.
        Would you give this committee the benefit of your thoughts
    on the situation in Kosovo? Anywhere you want to start or end,
    we would be grateful for your words.
        I am a little off from the intent and objective of this
    hearing, but, actually, it did come up and, as you know, it is
    very much a part of our relationship with Russia. What we are
    doing there and what we may yet do has significant
    consequences.
        Dr. Schlesinger. Foreign policy, by and large, is concerned
    with the relationships amongst great powers.
        Senator Hagel. Excuse me. Mr. Secretary, would you pull the
    microphone a little closer, please?
        Dr. Schlesinger. Yes. Foreign policy, by and large, is
    concerned with the relationship amongst great powers. Russia is
    down on its luck, but it may well come back as a great power
    and it certainly is the most significant potential power in
    Europe and potentially in Eurasia, as well, along with China.
        It seems to me that the administration was quite correct
    when it said that getting along with the Russians during its
    first 6 years was a correct policy.
        When Mr. Primakov was half way across to the United States,
    at Shannon Airport he was informed that we were going to start
    bombing the Serbs for whom the Russians have had a protective
    attitude for at least a century and a half, as the Serbs
    attempted to separate themselves from the Ottoman Empire. That
    was a serious blunder on our part, to allow our relations with
    a major power to deteriorate in this way.
        Serbia has subsequently asked to join the Association of
    Belarus and Russia, and we don't know where that will go. But
    it is not a healthy sign from the overall standpoint of our
    foreign policy.
        To the extent that we decided to move into the quarrel in
    Kosovo, we should have thought through in advance what the
    response was going to be on the other side and whether or not
    we could achieve our objectives with the means that we had put
    up.
        We did not. The result is that, when we started bombing,
    this triggered the very outcome that we wanted to avoid--to
    wit, the massive expulsion of Kosovars from Kosovo and the
    spilling over of that conflict beyond the borders of
    Yugoslavia. In the process, we also, at least temporarily,
    immensely strengthened Milosevic within the country--not one of
    our objectives.
        It seems to me that we must decide what we wish to be the
    outcome in Kosovo and to put together the means to achieve that
    end. If we want to achieve the results that we started with,
    that we started out asserting were our goals, then we must be
    prepared to create a credible ground threat.
        In the absence of a credible ground threat, Milosevic and
    the Serbs will hunker down, I believe. They will absorb the
    punishment. It will have a damaging effect ultimately within
    NATO.
        There are those countries that sympathize with the Serbs,
    including some of the new members of NATO. And it will
    ultimately be divisive, I fear, unless we are prepared either
    to move quickly to terminate it or to achieve ways of enforcing
    our will.
        At the moment, we seem to be hung up on neither, and we are
    proceeding with a bombing response which will do immense damage
    to the infrastructure of Serbia but which will not necessarily
    cause Milosevic or the Serbs to yield.
        Senator Hagel. Mr. Secretary, thank you.
        Dr. Schlesinger. Thank you, Mr. Chairman.
        Senator Hagel. We are grateful for your contribution and,
    as always, your insights. I am sure we will have occasion to
    revisit not only this subject but many others.
        Mr. Secretary, thank you.
        Dr. Schlesinger. Thank you, Mr. Chairman.
        Senator Hagel. Now we will ask Ambassador Lilley and
    Secretary Schneider to come forward and when they do, we will
    get started.
        Gentlemen, welcome once again. We have been joined, as you
    can see, by our friend and colleague, the distinguished Senator
    from Tennessee, Bill Frist. He will be poised to ask very
    insightful, direct questions as we go along.
        If we could, we will now ask Secretary Schneider for his
    testimony. Then we will ask Ambassador Lilley and will then get
    into some questions.
        Thank you.

        STATEMENT OF HON. WILLIAM SCHNEIDER, JR., FORMER UNDER
       SECRETARY OF STATE FOR SECURITY ASSISTANCE, SCIENCE, AND
      TECHNOLOGY, ADJUNCT FELLOW, HUDSON INSTITUTE, WASHINGTON, DC

        Dr. Schneider. Thank you very much, Mr. Chairman. I
    appreciate the privilege of testifying before this committee.
        As you know, I previously served as Under Secretary of
    State and, subsequently, as chairman of the General Advisory
    Committee on Arms Control and Disarmament in the Arms Control
    and Disarmament Agency and more recently served as a member of
    the Commission to Assess the Ballistic Missile Threat to the
    United States, the Rumsfeld Commission.
        This commission, as you know, delivered its report in July,
    1998. The question of proliferation can no longer be thought of
    as an isolated and far-off threat to the United States. The
    burden of evidence available to the U.S. Government was
    reviewed by the Rumsfeld Commission and presented to the
    Congress last July.
        Among the major conclusions of this congressionally
    mandated study are these.
        First, the threat to the United States posed by these
    emerging capabilities of ballistic missiles and weapons of mass
    destruction is more mature and evolving more rapidly than has
    been reported in estimates and reports by the intelligence
    community.
        Moreover, the warning times the United States can expect of
    new, threatening ballistic missile deployments are being
    reduced. Under some possible scenarios, including rebasing or
    the transfer of operational missiles, sea or air-launch
    options, shortened development programs that might include
    testing in a third country, or some combination of these, the
    United States might have little or no warning before an
    operational deployment of ballistic missiles able to reach the
    United States.
        The surge in the proliferation of ballistic missiles and
    weapons of mass destruction during the 1990's has created an
    environmental fact for the United States' national security
    policy for the next quarter century or more. Moreover, the
    nature of contemporary ballistic missile proliferation and
    weapons of mass destruction proliferation challenges many of
    the underlying assumptions of policy, including the abstention
    from the defense of U.S. territory from long-range ballistic
    missile attack.
        This posture is currently required under the provisions of
    the ABM Treaty of 1972.
        My testimony today will focus on proliferation related
    developments in Iran and assess the implications of these
    developments for U.S. security.
        In starting out, I think it is helpful to try to get an
    understanding of the nature of the contemporary proliferation
    process because the process since the end of the cold war is
    qualitatively different from that prior to the end of the cold
    war.
        Before the end of the cold war, Russia was an effective
    party to the nonproliferation regimes in place. Its interest
    resided in containing rather than facilitating the spread of
    the technology of weapons of mass destruction.
        Multilateral export controls limited the access of
    potential proliferators to scientific and industrial technology
    and equipment pertinent to the development of ballistic
    missiles and weapons of mass destruction. Moreover, the United
    States and most other governments, apart from China, restricted
    access to technology relating to weapons of mass destruction
    and ballistic missile technology.
        The end of the cold war brought about stark changes in
    Russia and its incentives relating to nonproliferation
    compliance. Export controls, especially multilateral controls,
    largely disappeared as an effective counter proliferation
    instrument.
        Regional rivalries created an interest in regional powers
    deterring outside intervention in regional disputes. This
    subject was referred to by Secretary Schlesinger during his
    testimony.
        The existing nonproliferation regime has proven to be ill-
    suited to the manner in which post-cold war proliferation has
    taken place. Proliferators have not focused on obtaining the
    most advanced technology. Instead, they have focused on
    obtaining obsolescent but functional WMD and ballistic missile
    technology.
        Russia has economic incentives as well as policy incentives
    to assist Iran and several other countries in acquiring weapons
    of mass destruction and ballistic missile technology.
        The absence of export control barriers to scientific and
    industrial equipment relevant to weapons of mass destruction
    and ballistic missile development has made this equipment
    widely available.
        North Korea's successful development of long-range missiles
    and weapons of mass destruction has made its program one of the
    engines of proliferation. Its dispersion of manufacturing
    technology to other countries has contributed to making
    proliferation largely self sustaining.
        The creation of large-scale weapons of mass destruction and
    ballistic missile manufacturing facilities in North Korea,
    Iran, Iraq, and Pakistan, has several profound effects for the
    long-term outlook for proliferation.
        First, this infrastructure will soon make these nations
    largely independent of access to technologies from nations such
    as China and Russia, who are now the primary suppliers. The
    major proliferators have insisted on a substantial measure of
    autarchy in WMD and missile production. They are not simply
    buying missiles off the shelf. They will be producers.
        Proliferation is now on the verge of being self-sustaining.
        Second, the size of the infrastructure in place creates
    incentives for producers to also become exporters. National
    requirements will be met by a few years of production from the
    local industrial base. To sustain production, these nations
    will be obliged to seek export markets. Acquiring ballistic
    missiles is the least cost approach to regional power status,
    an opportunity many nations may seize with very negative
    consequences for regional stability and peace.
        Third, the impact of large manufacturing infrastructures
    for WMD and ballistic missiles changes the scale of the problem
    from a few ballistic missiles to hundreds in the next decade,
    and perhaps thousands after 2010. Several proliferators are
    profoundly hostile to the United States and its allies.
        Bearing the nature of this proliferation problem in mind,
    there are a few observations I would like to make specifically
    with respect to Iran.
        Iran is well suited to acquire a very substantial WMD and
    ballistic missile force. Its acquisition of SCUD series missile
    from North Korea during the 1980-88 Iran-Iraq conflict helped
    finance North Korea's development of longer range systems,
    including what is now known as the SCUD-C, which has a 700
    kilometer range, No Dong, which has a 1,300 kilometer range,
    and the Taepo Dong-I and Taepo Dong-II, with an
    intercontinental range with characteristics that depend on the
    weight of the payload.
        North Korea sold its No Dong missile to Iran, where it has
    been upgraded with Russian assistance. The missile was launched
    in July 1998 and will be deployed later this year.
        At a September 25, 1998 military parade in Tehran,
    President Khatami praised Russia for the assistance it provided
    to Iran's missile program. The weapon can deliver a nuclear,
    chemical, or biological or conventional payload to targets
    throughout the Middle East and can reach targets throughout
    Europe with a biological weapons payload.
        Moreover, because the missile is mounted on a mobile
    transporter-erector-launcher, it can be readily launched
    covertly from a merchant ship. This technology is hardly new.
    The United States launched a Polaris missile from a merchant
    ship in 1962. The former Soviet Union also launched SCUD short-
    range missiles from surface ships. The technique is well
    understood.
        Surface ship launch appears to be a likely alternative
    option for several emerging WMD and ballistic missile States.
        More recently, the Financial Times reported on April 16 on
    the Pakistani Shaheen-1 missile, which was launched the
    previous day, that the missile may be intended for sea launch.
        The missile, with a 1 metric ton--that is, 2,200 pound--
    payload, may be developed so that Pakistan can have a similar
    capability to that which is deployed by India or that will soon
    be deployed by India, which is a surface ship launched
    ballistic missile.
        The modern commercial technology, such as the INMARSAT
    telecommunications satellite and the global positioning system
    satellites diminishes the significance of the primary
    operational limitations of sea-based ballistic missile systems
    in the past--that is, communications with the ship and
    positional accuracy.
        The use of surface ship launched missiles may be especially
    attractive to Iran. Iran tends to employ non-Iranian nationals
    for some of its international terrorist operations. Iran has
    used personnel from several States in the Middle East region to
    diminish the risk of accountability for its support of
    international terrorist operations.
        The recent terrorist activities, including the Khobar
    Towers bombing in Saudi Arabia and the East African embassy
    bombings last year, were done without any country claiming
    responsibility for these.
        The option of a covert launch provides another alternative
    for Iran to extend the geographic reach of its ballistic
    missile force while diminishing the risk of retaliation against
    its own territory.
        Iran is developing longer-range ballistic missiles as well.
    Iran has acquired rocket engines and advisory support from
    Russia that will permit it to develop intercontinental range
    missiles able to reach the United States from Iranian
    territory. The technology is mature since it is based on the
    German World War II V-2 liquid fuel technology. So little
    testing is required.
        This phenomenon of little testing was reflected in North
    Korea's development of the No Dong missile. The missile was
    successfully flown in May 1993 and has been in series
    production since then.
        Large numbers have been produced and, based on observed
    evidence, it is quite reliable. The No Dong is used as the
    first stage in North Korea's Taepo Dong-I missile, which was
    successfully launched in a trajectory over Japan in 1998. The
    Taepo Dong-I is capable of reaching U.S. territory with a
    biological weapons payload. The Taepo Dong-II will be able to
    reach the United States with a nuclear payload.
        Iran has the components for the Taepo Dong system already
    in its inventory in that the second stage of the Taepo Dong
    missile is a SCUD missile. The first stage would be the No
    Dong.
        Iran will begin its deployment of its variant of the No
    Dong missile later this year, the Shahab 3. This will augment
    its inventory of SCUD missiles. The missile is not accurate
    enough to be usefully employed effectively with conventional
    warheads. Thus, it is likely that it will use an unconventional
    warhead--biological, chemical, or nuclear.
        The details of the weapons program are not known. But as
    the deployment of the Shahab 3 is imminent, it is likely that
    Iranian authorities have already identified the missile's
    warhead.
        Iran has previously employed missile delivered lethal
    chemical agents in 1980 to 1998 in its conflict with Iraq. Even
    without foreign assistance, Iran is capable of a missile
    delivery of anthrax or smallpox derived biological weapons in
    bulk form.
        A more effective mode of biological agent delivery using
    submunitions may also be available to Iran. This submunition
    technology for biological agents is at least four decades old.
    Submunition systems for biological agents were developed in the
    1950's.
        Missile delivered submunitions filled with biological
    agents were extensively developed and produced by the former
    Soviet Union and continue to be available in Russia today.
        Access to nuclear weapons is dependent on Iran's ability to
    acquire special nuclear material. Foreign acquisition of such
    material is unlikely to be observed by the United States.
        We learned from experience in the 1980's that Pakistan
    obtained a tested nuclear weapon design and a significant
    quantity of special nuclear materials, in this case highly
    enriched uranium from China.
        This development permitted Pakistan to acquire a nuclear
    capability without the necessity to conduct a nuclear test,
    although it did so for apparently political reasons in response
    to India's nuclear testing.
        The Shahab 3 poses a threat to U.S. forces and allies
    deployed in the Middle East region and to Europe, as well, if a
    biological weapons payload is employed.
        If the Shahab 3 is covertly deployed on a merchant ship, it
    can then be employed against U.S. territory. Provisions of the
    ABM Treaty prevent the United States from deploying missile
    defenses against this threat. The proposed national missile
    defense system is designed to have no capability to intercept
    ballistic missiles with a range of less than 2,000 miles. This
    is so to comply with provisions of the treaty.
        The treaty prevents the use of theater missile defenses in
    a national missile defense mode. Hence, it precludes deploying
    our own theater missile defenses against a sea based threat.
    Such defenses as the Patriot system would not be permitted
    under the existing terms of the ABM Treaty.
        Iran's missile force is poised for rapid growth. Russian
    assistance to Iran has intensified since 1998. Iran's
    production of the No Dong completes the building blocks for
    multi-stage missiles.
        It is likely that Iran will continue development of multi-
    staged missiles, although some of these may be disguised as
    space launch vehicles. The option is attractive for Iran and
    may help preserve the ambiguity of its ballistic missile
    programs.
        In the case of space launched vehicles, only software and
    payload changes are required to shift from a civil space launch
    to a military missile. Moreover, any missile with sufficient
    energy to deploy a payload into orbit around the earth also has
    the capability to deliver payload to a target on the surface of
    the earth at intercontinental range.
        Finally, in this regard, a new channel of proliferation may
    soon emerge if Russia obtains relief from existing arms control
    limitations on the number of space launch sites it can create
    outside of its own territory. Most of the ICBM's it developed,
    manufactured, and deployed are used in modified form for space
    launch application. The proliferation of such activities could
    create yet another path for the proliferation of long-range
    missiles.
        The ABM Treaty in its present form poses an obstacle to an
    important policy objective of the United States, deterring Iran
    from making further investments in long-range missiles.
        Further, the provisions of the treaty prevent the United
    States from deploying missiles against the two most plausible
    forms of ballistic missile threats now available or that will
    soon be available to Iran--covert, sea launch missiles and
    land-based ICBM's.
        Thank you, Mr. Chairman.
        [The prepared statement of Dr. Schneider follows:]

               Prepared Statement of Hon. William Schneider, Jr.

     iran's activities relating to ballistic missiles and weapons of mass
                                  destruction
        Mr. Chairman and distinguished Members of the Committee:
        It is a privilege to have an opportunity to appear before this
    committee. I previously served as Under Secretary of State (1982-86),
    and as Chairman of the General Advisory Committee on Arms Control and
    Disarmament. More recently, I served as a Member of the Commission to
    Assess the Ballistic Missile Threat to the United States (the Rumsfeld
    Commission) that delivered its report to the Congress in July, 1998.
        The question of proliferation can no longer be thought of as an
    isolated and far-off potential threat to the United States. The burden
    of evidence available to the United States government was reviewed by
    the Rumsfeld Commission and presented to the Congress in July 1998.
    Among the major conclusions of this Congressionally mandated study are
    these.

              The threat to the U.S. posed by these emerging capabilities
            is broader, more mature and evolving more rapidly than has been
            reported in estimates and reports by the Intelligence
            community.
              The warning times the U.S. can expect of new, threatening
            ballistic missile deployments are being reduced. Under some
            plausible scenarios--including re-basing or transfer of
            operational missiles, sea or air-launch options, shortened
            development programs that might include testing in a third
            country, or some combination of these--the U.S. might well have
            little or no warning before operational deployment.

        Proliferation-related developments can no longer be thought of as
    an isolated or far-off threat that is of no immediate consequence to
    U.S. security interests. The surge in the proliferation of ballistic
    missiles and weapons of mass destruction during the 1990's has created
    proliferation as an environmental fact for U.S. national security
    policy for the next quarter century or more. Moreover, the nature of
    contemporary WMD and ballistic missile proliferation challenges many of
    the underlying assumptions of policy including abstention from the
    defense of U.S. territory from long-range ballistic missile attack.
    This posture is currently required under the provisions of the Anti-
    Ballistic Missile (ABM) Treaty of 1972. My testimony today will focus
    on proliferation-related developments in Iran and assess the
    implications of these developments for U.S. security.
    The Post-Cold War Proliferation Process
        The process of proliferation since the end of the Cold War is
    qualitatively different from the process of proliferation prior to the
    end of the Cold War in 1991. Before the end of the Cold War, Russia was
    an effective party to the non-proliferation regimes in place. Its
    interests resided in containing rather than facilitating the spread of
    the technology of weapons of mass destruction. Multilateral export
    controls limited the access of potential proliferators to scientific
    and industrial technology and equipment pertinent to the development
    and manufacture of ballistic missiles and WMD. The United States and
    most other governments (apart from China) restricted access to
    information relating to WMD and ballistic missile technology.
        The end of the Cold War brought about stark changes in Russia and
    its incentives relating to nonproliferation compliance. Export
    controls--especially multilateral controls largely disappeared as an
    effective counter-proliferation instrument. Regional rivalries and an
    interest by regional powers in deterring outside intervention in
    regional disputes have stimulated an effort to acquire WMD and
    ballistic missiles.
        The existing non-proliferation regime has proven to be ill-suited
    to the manner in which post-Cold War proliferation has taken place.
    Proliferators have focused on obsolescent, but functional WMD and
    ballistic missile technology. Russia has economic and policy incentives
    to assist Iran and several other countries in acquiring WMD and
    ballistic missile technology. The absence of export control barriers to
    scientific and industrial equipment relevant to WMD and ballistic
    missile development has made such equipment widely available. North
    Korea's successful development of long-range missiles and WMD has made
    its program one of the engines of proliferation. Its dispersion of
    manufacturing knowledge to other nations contributed to making
    proliferation largely self-sustaining.
        The creation of large scale WMD and ballistic missile manufacturing
    facilities in North Korea, Iran, Iraq, and Pakistan has had several
    profound effects on the long-term outlook for proliferation.
        First, this infrastructure will soon make these nations largely
    independent of access to technologies from nations such as China and
    Russia who are now primary suppliers. The major proliferators have
    insisted on a substantial measure of autarky in WMD and missile
    production. They are not simply buying WMD and missiles ``off the
    shelf''--they are or will be producers. Proliferation is now on the
    verge of being a self-sustaining phenomenon.
        Second, the size of the infrastructure in place creates an
    incentive for producers to become exporters. National requirements will
    be met by a few years of production from the local industrial base. To
    sustain production, these nations will be obliged to seek export
    markets. Acquiring ballistic missiles is the least-cost approach to
    regional power status--an opportunity many nations may seize with very
    negative confidence for regional peace and stability.
        Third, the impact of large manufacturing infrastructures for WMD
    and ballistic missiles change the scale of the problem from a ``few''
    ballistic missile to hundreds in the next decade, and perhaps thousands
    after 2010. Several proliferators are profoundly hostile to the United
    States and its allies.
    Proliferation Developments in Iran
        Iran is well situated to acquire a very substantial WMD and
    ballistic missile force. Iran's acquisition of SCUD-series ballistic
    missiles from North Korea during the 1980-88 Iran-Iraq conflict helped
    finance North Korea's development of longer range systems including
    what is now known as the SCUD-C (700 km. range), the No Dong (1,300-km.
    range), and the Taepo-dong 1 and 2 (intercontinental range).
        North Korea sold its No Dong missile to Iran where it has been
    upgraded with Russian assistance. The missile was launched in July 1998
    and will be deployed later this year. At a 25 September 1998 military
    parade in Tehran, President Khatami praised Russia for the assistance
    it provided to Iran's ballistic missile program. The weapon can deliver
    a nuclear, chemical, biological, or conventional payload to targets
    throughout the Middle East, and can reach targets throughout Europe
    with a biological weapons payload. Moreover, because the missile is
    mounted on a mobile transporter-erector-launcher (TEL), it can also be
    readily launched covertly from a merchant ship. The U.S. launched a
    Polaris missile from a merchant ship in 1962. The former Soviet Union
    also launched short-range SCUD missiles from surface ships. The
    Financial Times (April l6, 1999) reported on the first launch of
    Pakistan's Shaheen-1 (600-km range) ballistic missile on April 15th.
    The technique is well understood. Surface ship launch appears likely to
    be an alternative launch option for several emerging WMD and ballistic
    missile states.
        The Financial Times noted that the Shaheen-1, with a one metric ton
    (2,200 lbs.) payload ``could be launched from a naval vessel.'' Such a
    development may reflect Pakistan's effort to develop a counterpart
    capability to India's surface ship-launched ballistic missile program.
    Modem commercial technology (e.g. INMARSAT telecommunications and
    Global Positioning System navigation satellites) diminishes the
    significance of the primary operational limitations of sea based
    ballistic missile systems in the past--communications with the ship and
    positional accuracy.
        The use of surface ship launched ballistic missiles may be
    especially attractive to Iran. Iran tends to employ non-Iranian
    nationals for some of its international terrorist operations. For
    example, Iran has often used personnel from several states in the
    Middle East region to diminish the risk of accountability for
    supporting international terrorist operations. The option of a covert
    launch provides another alternative for Iran to both extend the
    geographic reach of its ballistic missile force while diminishing the
    risk of retaliation against its own territory.
        Iran continues to develop long-range ballistic missiles as well.
    Iran has acquired rocket engines and advisory support from Russia that
    will permit it to develop intercontinental range missiles able to reach
    the United States from Iran. As the technology for these systems is
    mature (the liquid fuel propulsion system is derived from the Germany's
    World War II V-2 program), little testing is required. This phenomenon
    was reflected in North Korea's development of the No Dong missile. The
    missile was successfully flown in May 1993, and has been in series
    production since then. Large numbers have been produced, and based on
    observed evidence, is quite reliable. The No Dong is used as the first
    stage in North Korea's Taepo-dong 1 missile--successfully launched in a
    trajectory over Japan in August 1998. The Taepo-dong 1 missile is
    capable of reaching U.S. territory with a biological weapons payload;
    the Taepo-dong 2 will be able to reach the United States with a nuclear
    payload. North Korea has stated publicly that it intends to export its
    ballistic missile systems. Iran, as a buyer of its SCUD-series missiles
    as well as the No Dong missile is a plausible candidate for the Taepo-
    dong missile system as well.
    Implications of Iran's Ballistic Missile Program for the U.S.
        Iran will begin deployment of its variant of the No Dong medium
    range ballistic missile, the Shahab 3 later this year, and will augment
    its inventory of SCUD missiles. As the missile is not accurate enough
    to be usefully employed with a conventional warhead, it is likely that
    it will be used with an unconventional warhead--biological, chemical,
    and nuclear.
        The details of its weapons program are not known, but as deployment
    of the Shahab 3 is imminent, it is likely that Iranian authorities have
    already identified the missile's warhead(s). Iran employed missile
    delivered lethal chemical agents in its 1980-88 conflict with Iraq.
    Even without foreign assistance, Iran is capable of missile delivery of
    anthrax or smallpox-derived biological weapon payloads in bulk form. A
    more effective mode of biological agent delivery using sub-munitions
    may also be available to Iran. The technology for sub-munition delivery
    of biological agents is at least four decades old. A sub-munition
    system for biological agents was developed by the United States in the
    late 1950's. Missile-delivered sub-munitions filled with biological
    agents were extensively developed and produced by the former Soviet
    Union, and continue to be available today in Russia. Access to nuclear
    weapons is dependent on Iran's ability to acquire special nuclear
    material. Foreign acquisition of such material is unlikely to be
    observed by the United States. We learned from experience in the 1980's
    that Pakistan obtained a tested nuclear weapon design and a significant
    quantity of special nuclear material (highly enriched uranium) from
    China. This development permitted Pakistan to acquire a nuclear
    capability without a necessity to conduct a nuclear test (though
    Pakistan did so in 1998 in response to India's nuclear testing).
        The Shahab 3 poses a threat to U.S. forces and allies deployed in
    the Middle East region and to Europe if a biological weapons payload is
    used. If the Shahab 3 is covertly deployed on a merchant ship, it can
    then be employed against U.S. territory. Provisions of the ABM Treaty
    prevent the United States from deploying missile defenses against this
    threat. The proposed National Missile Defense system is designed to
    have no capability to intercept ballistic missiles with a range of less
    than 2,000 miles to comply with the Treaty. Treaty provisions
    preventing the use of theater missile defenses in a national missile
    defense mode preclude theater missile defenses (such as Patriot).
        Iran's ballistic missile force is poised for rapid growth. Russian
    assistance to Iran has intensified since mid-1998. Iran's production of
    the No Dong completes the building blocks for multi-stage long-range
    missiles. Iran possesses the SCUD missile--the second stage of the
    Taepo-dong 1 ballistic missile. The Taepo-dong 1 ballistic missile has
    intercontinental capabilities with a biological weapons payload. North
    Korea has successfully demonstrated that it is able to implement
    missile stage separation--the enabling capability for intercontinental-
    range missile development. If it shares this technology with Iran--
    perhaps North Korea's largest and most loyal customer--the range of
    targets Iran could hold at risk will grow significantly.
        It is likely that Iran will continue long-range multi-stage
    ballistic missile development, although some missile flights will be
    disguised as ``space launches.'' This option is attractive for Iran in
    creating ambiguity about its military missile development program. Only
    software and payload changes are required to shift from a civil
    ``space'' launch to a military missile. Moreover, any missile with
    sufficient energy to deploy a payload into an orbit around the earth
    has a capability to deliver a payload to a target on the surface of the
    earth at intercontinental range.
        In this regard, a new channel for proliferation may soon emerge if
    Russia obtains relief from existing arms control limitations on the
    number of space launch sites it can create outside of its own
    territory. Most of the ICBM's developed, manufactured, and deployed by
    the former Soviet Union are used in modified form for space launch
    applications. The proliferation of such activities could create yet
    another path for the proliferation of long-range ballistic missiles.
        The ABM Treaty in its present form poses an obstacle to an
    important policy objective of the United States--deterring Iran from
    making further investments in long-range ballistic missiles. Further,
    the provisions of the Treaty prevent the United States from deploying
    missile defenses against the two most plausible forms of ballistic
    missile threats available now or will soon be available to Iran--covert
    sea-launched missiles, and land-based ICBM's.

        Senator Hagel. Mr. Secretary, thank you.
        Ambassador Lilley.

     STATEMENT OF HON. JAMES R. LILLEY, FORMER U.S. AMBASSADOR TO
        CHINA, THE AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC

        Ambassador Lilley. Thank you, Mr. Chairman.
        I have four caveats as I proceed. First, others have well
    defined the strategy of missiles and the missile defense, so I
    am not going to get into that. I have been asked to have a
    narrow focus on a very large and complex subject, Chinese
    intentions and the role of missiles in this.
        I have gone back in time because this is the only way we
    can begin to understand what the Chinese might be up to. Bear
    with me as I deal with the rhetoric because there are millions
    of words spoken. So I must be selective.
        Having said that, I think, first of all, as for Chinese
    intentions, what have they actually said? I chose their
    February 1992 law passed by the Standing Committee of the
    National People's Congress, which stands today, I think, as a
    singular statement of what the Chinese are up to. The scope of
    this is defined as the first island chain around China. It goes
    from the Senkaku Islands off Japan, it goes down to Taiwan, and
    it takes over the South China Sea, claiming exclusive
    jurisdiction over the Spratlys.
        What this law means, of course, is that it puts China into
    potential confrontation with Japan over the Senkakus because
    Japan claims them, too, and we have a security treaty with
    Japan which the Japanese say includes the Senkaku Islands.
        Second, as for Taiwan, we have the guarantees in the Taiwan
    Relations Act. China has said this is their own territory. They
    claim it is theirs and that we are interfering in their
    internal affairs when we sell weapons or support Taiwan.
        Finally, in the Spratly Islands, they contest Vietnam,
    Malaysia, Brunei, the Philippines and Taiwan, all of whom claim
    them. The Chinese say these are simply ours. They have also
    reserved in this piece of law the right to use hot pursuit and
    military means to deal with foreign powers that challenge them.
        I will make one caveat on this, actually, the U.S. has said
    that the sea lanes through the Spratlys were of critical
    interest to the United States. In a statement in 1995, ASEAN,
    the Association of Southeast Asian Nations, politically
    complained to China about its predatory moves down there, and
    the Chinese have backed off to a degree because the power of
    the Seventh Fleet, along with ASEAN's political power, were
    sufficient to deter them. I think this is an important
    precedent to keep in mind as you go through this analysis.
        Second, this is not words. Statements in their law and
    other statements the Chinese have since made to support their
    law are important but we must also look at their acquisitions.
    Their acquisitions back this up, whether it is the Sukhoi-27
    from Russia, a state-of-the-art fighter/bomber--they will
    probably have 200 of them in the next 5 years--their kilo class
    submarine and their 100 SRBM's, short-range ballistic missiles,
    which are alleged now to be deployed along the Fujien coast
    opposite Taiwan.
        They have conducted in July 1995 and March 1996 live fire
    exercises, which have demonstrated their DF-15 or M-9 nuclear
    capable missile off the north and south coasts of Taiwan.
    Certainly what emerged from this particular exercise, by the
    exercises, I should say, was that China's amphibious force, its
    use of aircraft, its use of naval forces, its tri-service
    coordination were weak. The one powerful instrument they had
    were missiles. They recognize that the missiles not only caused
    economic dislocations in Taiwan, but also they claim
    intimidated the Seventh Fleet carrier battle groups that came
    off the east coast from going through the Taiwan Strait.
        This is a claim the Chinese made.
        I then deal with the Chinese sizing up of the American war-
    fighting psychology. They have come to the conclusion--and this
    is amply demonstrated in Michael Pillsbury's book--which is
    based on Chinese documents and Chinese view of future warfare--
    they make the proposition quite clear that the United States
    will not take losses. They look at Somalia, they look at
    Kosovo, and they look at other countries where we have engaged
    our forces. We go for hi-tech and no losses. Therefore, this
    gives them a distinct advantage in dealing with the United
    States.
        Hence, they give you the veiled warning that the United
    States would not sacrifice Los Angeles for Taiwan. And now that
    we know they have the capability to reach Los Angeles, we have
    to take this seriously.
        Then I indulge briefly in a sketchy walk-through history,
    because I think we have to look at the way they fought their
    wars since 1949, to try to get a look into their mentality--
    what checks them, what works, what does and does not work for
    them. I think you start off with Korea in 1950 as instructive.
        Certainly, in the first stages of that war there was
    surprise, overwhelming force, favorable terrain and they scored
    great victories. They drove the 8th Army and the 1st Marine
    Division out.
        The second lesson of the war was when they got into
    positional warfare against an enemy with better weapons, they
    lost. Matthew Ridgeway gave them a very punishing lesson, that
    they could not stand up to. Then they compromised in a major
    way in the Korean War. I think that is a lesson.
        Again, I think in the Taiwan Strait they have consistently
    tried to use bluff and bluster first to achieve their ends.
    They were able to do this in 1954. They failed in 1958 and they
    failed in 1995 and 1996. It did not work. It was a particularly
    egregious failure in 1958, when they had to back off from a
    threat to Taiwan, mainly because the Seventh Fleet moved in and
    the Taiwan Air Force shot them out of the air. It was something
    like 35 planes to 1. They were no match for the Sabre Jet with
    the air-to-air Sidewinder missile.
        So they backed off. They undertook on-day/off-day artillery
    firing to save face. But people know that it did not work.
        Again, I say in 1995-96, when the Nimitz went through in
    December 1995 and when the two carriers came in 1996, the
    Chinese got the message. They were no match for the Seventh
    Fleet.
        So they backed off from this and they planned the next
    steps.
        If you look at 1969 and the way they faced the Soviet
    Union, they were driven by the passionate nationalism of the
    Cultural Revolution. They conducted military operations against
    the Soviet Union which were, in many ways, almost bizarre. But
    the point is they got their clock cleaned. The Russians had
    superior force, they beat up on them, they drove the Chinese
    back. What did the Chinese do? They turned to us for a
    strategic partnership with us against the Soviet Union. And we
    took it up immediately for the opening to China.
        I think 1974 is interesting, January 1974, because it was
    the kind of operation you have to look out for these days. They
    seized the Paracels in a lightening attack. They moved in
    amphibious forces, Hainan class gunboats. They took the
    Paracels and their timing was perfect.
        The United States was pulling out of a collapsing Vietnam,
    the Soviet Union had not moved in yet, and they had a window of
    opportunity. They struck quickly, decisively, and won. They
    took over the Paracels. Now they are building airstrips there.
        They again punished the Vietnamese in 1988 in the Spratlys
    and they started to buildup, as you know, a People's Liberation
    Army facility on Mischief Reef down in the Spratlys.
        So we see them moving from a surprising success, pushing
    forward for the next step. However, in 1979, it was
    instructive. They took on the Vietnamese in a clumsily executed
    land war. The battle tested, hardened Vietnamese military
    inflicted heavy casualties. The Chinese retreated. They said
    they gave the Vietnamese a bloody nose, delivered a message,
    and then pulled back. And they found their army was lazy, fat,
    poorly trained, and their use of command and control was poor.
        What emerges from all this is that China tries to know its
    own strength and its opponent's weaknesses. It can adjust very
    quickly when it faces superior forces and the enemy has a
    strong will. But it also moves quickly and decisively when the
    opportunities arise.
        I think we have to keep this in mind in Taiwan.
        Then I get briefly to the role of missiles. First, the
    Chinese see definitely an ally in the anti-missile defense
    people in the United States. They try to link up with them.
        I think since 1995, they have been trying to shape the
    debate on missiles. They have said the problem is not our
    missiles, it is our missile defense system. They have been able
    to divert the Americans into focusing on that. Look at the
    argument we are having today on ABM.
        It is not so much for Chinese missile deployments as it is
    our reaction to it. The Chinese have been rather successful
    because we have heard a chorus of voices sounding off against
    missile defense directed against the Chinese. The Chinese
    quickly follow this with a very effective device. They say if
    you deploy theater missile defense, this is a make or break
    issue in the Chinese-American relationship. That's it--you have
    gone back on the commitments you made in 1971-72, Nixon-
    Kissinger, that you would not work with Japan and Taiwan to
    form a defense system against us, and that is precisely what
    you are doing. This is intolerable to us. You said you would
    not do this. We affirmed this in the three communiques. This is
    intolerable American intervention which will only increase the
    chances for Taiwan independence and will cause China to perfect
    and expand its own missile forces. That is their argument.
        Third, the Chinese have taken direct aim at national
    missile defense and theater missile defense by insisting that
    the Anti-Ballistic Missile Treaty, which they have not signed,
    be maintained and strengthened. This is a means to curtail our
    ability to deploy weapons against them.
        I notice that the Carnegie Endowment for International
    Peace distributed Sha Zukang's statement on this in February of
    this year. It is a clear, tough, hard statement which says
    don't deploy antimissile defense.
        It is instructive, when you look back briefly in history,
    you see that one of the successful efforts that the Chinese
    made with their collaborators in the United States was to block
    the FX for Taiwan in 1981. They marshalled forces. They said at
    that time that the sale of an F-16 or an F-5G to Taiwan would,
    in fact, break the relationship.
        Hysterical memos came out of our bureaucratic establishment
    and we backed off. We did not get new fighter planes sold to
    Taiwan for another 10 years. And they did not really complain
    then.
        It is interesting that it was at a time in 1992, when the
    Chinese needed us. They had seen the results of Desert Storm.
    They wanted to make contact with our military. They were
    willing to accept the F-16 sale because it was more important,
    as Deng said, to have the American relationship than to fight
    over a single issue.
        So it is a question of how we handle this. There is also
    another aspect of the way they manage the U.S. relationship. It
    is the old adage--when capable, feign incapacity. Put the word
    out--China's defense budget is only $9 billion, it is much
    smaller than Japan's, Taiwan's, Korea's, ours. Ours is at $250
    billion and China only at $9 billion.
        But, of course, they are dissembling. We know their budget
    is at least four times as large. At the same time, the argument
    is used--and President Clinton used this on April 7 in his
    press conference in the Mayflower--we have 7,000 nuclear
    weapons, they have 24, what is the problem?
        There is no problem. We overwhelm them. Why are we arguing
    about our threat? There is no threat.
        So we dismiss the threat as minimal. What it does not take
    into consideration is the way they look at weapons. They don't
    look at them the way we do. They are not trying to match us
    missile for missile. They have a concept of asymmetrical
    warfare.
        They hit our vulnerabilities. They know that our cities are
    vulnerable. They have used this against the Russians--force de
    frappe in the 1970's. The U.S. has many more than China does,
    but the USSR would never lose Irkutsk or Vladivostok.
        This is a psychological ploy that puts one on the defensive
    quite effectively.
        The Chinese also have documented that they are willing to
    take huge population losses in any kind of war.
        They have said, as Mao is alleged to have said, we can lose
    300,000 million people in a war with Russia; or, we know, for
    instance, that in the Great Leap Forward, 30 million Chinese
    died of starvation because of Mao's social engineering.
        We have to take this seriously.
        I just might add on Kosovo, Kosovo is instructive in one
    way for us on this. If we let Milosevic know that we are not
    going to use ground forces in Kosovo in advance, he is going to
    take much more decisive action. If we let the Chinese know that
    there is no missile defense out there, their missiles will be
    built up because it will give them leverage to force Taiwan to
    the negotiating table on their terms.
        Again, I say in my epilogue that China is a great
    civilization of culture and art. It should be a country that
    goes by international rules of trade, the rule of law across
    the board, that expands its electoral base, that opens up its
    system and that deals with its problems on its periphery in a
    peaceful way. I think this is what we should aim for.
        There is the clear emphasis on economic priorities now in
    China. This is being challenged because of the economic turn-
    down. Some Chinese propose turning to military means. But there
    is a very powerful force in China that wants to be in the World
    Trade Organization. In Premier Zhu Rong-ji's visit here the
    whole strategic-military arrangement was downplayed in favor of
    economics.
        Even our own President neglected to use the words
    constructive strategic partnership in both his press conference
    in the Mayflower and his joint press conference with Zhu.
    Anybody knows that a strategic partnership does not exist. It
    is just a word game.
        The Chinese are against NATO expansion, they are against
    our position in Kosovo, they are against the Japanese-American
    Security Treaty, which is the cornerstone of our strategy in
    Asia, they are against our position on Taiwan, and they
    sometimes have not been helpful in our position on North Korea.
        So, I end up with the old Sunzi adage that the real
    strategy is to win every battle without fighting. Those who
    simply win every battle are not really skillful. Those who
    render other armies helpless without fighting are the best of
    all. The best victory is when the opponent surrenders of his
    own accord, before there are any actual hostilities.
        It seems to me, when I read your S. 693 on enhanced
    security cooperation with Taiwan, there was one element in
    there that I think was particularly important. I think, as
    Secretary Schlesinger said, to get into a real contest with the
    Chinese right now on TMD is not worth our attention.
        But it seems to me that it is clearly spelled out in that
    piece of draft legislation that the software concerning
    communications, planning, education, and training, are very
    important to establish now.
        These are not make or break issues.
        When we sent our carriers in there in March 1996, we had
    really no contact with Taiwan. This could have led to a
    disaster. It seems to me it is essential to establish an
    understanding with Taiwan about future contingencies and
    planning to deal with those contingencies. This is the sort of
    thing which you can carry out, I think, without really
    challenging the PRC relationship.
        What we do about Aegis class destroyers built into a THAAD
    system to defend Taiwan, whether we sell Taiwanese the
    destroyers to do it themselves it seems to me is a decision
    that is way down the road and only after there is actually an
    antimissile system that works.
        Thank you.
        [The prepared statement of Ambassador Lilley follows:]

                   Prepared Statement of Hon. James R. Lilley

                 the chinese challenge and the role of missiles
        First, what is the Chinese challenge? Does the United States have a
    genuine ``constructive strategic relationship'' with China? How modern
    are Chinese strategic rocket forces and how does China intend to use
    them? Is to consider China any kind of a threat a self-fulfilling
    prophecy? Are American strategic forces so overwhelming that we do not
    have to worry about China? Is Taiwan a flash point or a model for
    positive change?
        1. Chinese intentions: Let us look at what the Chinese themselves
    say authoritatively and publicly:
        The Law of the People's Republic of China (PRC) on the Territorial
    Sea and Its Contiguous Zone adopted at the 24th Meeting of the Standing
    Committee of the Seventh National People's Congress on February 25,
    1992 explicitly states.

            Article 2
              The territorial sea of the People's Republic of China is the
            sea belt adjacent to the land territory and the internal waters
            of the People's Republic of China. The land territory of the
            People's Republic of China includes the mainland of the
            People's Republic of China and its coastal islands; Taiwan and
            all islands appertaining thereto including the Diaoyu Islands
            the Penghu Islands; the Dongsha Islands; the Xisha Islands; the
            Zhongsha Islands and the Nansha Islands; as well as all the
            other islands belonging to the People's Republic of China. The
            waters on the landward side of the baselines of the territorial
            sea of the People's Republic of China constitute the internal
            waters of the People's Republic of China.

            Article 5
              The sovereignty of the People's Republic of China over its
            territorial sea extends to the air space over the territorial
            sea as well as to the bed and subsoil of the territorial sea.

            Article 6
              Foreign ships for non-military purposes shall enjoy the right
            of innocent passage through the territorial sea of the People's
            Republic of China in accordance with the law. Foreign ships for
            military purposes shall be subject to approval by the
            Government of the People's Republic of China for entering the
            territorial sea of the People's Republic of China.

        What this law means is the Spratly Islands (also claimed by
    Vietnam, Taiwan, Malaysia, and Brunei) belong to the PRC. Taiwan, which
    has security guarantees in the Taiwan Relations Act, belongs to the
    PRC. The Diaoyu or Senkaku Islands which are also claimed by Japan
    belong to the PRC. China has thus staked out claims on the first island
    chain surrounding its most valuable east coastal area from Tianjin to
    Guangzhou which puts it into potential confrontations with ASEAN, the
    U.S., and Japan.
        Article 3 establishes PRC sovereignty over the territorial sea and
    air space, and establishes procedures for foreign navy ships to pass
    through its territorial waters.
        Article 8 says the PRC ``has the right to take all necessary
    measures to prevent and stop non-innocent passage,'' and in Article 14
    this includes the ``right of hot pursuit against foreign ships.'' It
    specifically states this includes ``for military purposes.''
        Prior to 1985, Chinese strategy was defensive, against a single
    superior force to its north, the Soviet Union, and this required a
    temporary partnership with the U.S. In 1985 the Chinese switched its
    strategy to hi-tech warfare against states on its periphery. It has
    since given first priority to its strategic rocket forces, its navy,
    its air force, and its Rapid Reaction Units. This was to support its
    objective of extending its sovereignty over contiguous areas to its
    east and was done for both offensive and defensive reasons.
    Offensively, the PRC seeks to undermine the American bilateral alliance
    system stretching from Korea in the north to Australia in the south by
    labeling it an anachronism left over from the Cold War. The Chinese
    characterize these alliances as a series of arrows aimed at China which
    will spur on the arms race and destabilize the area. China also seeks
    to neutralize the military bases of this U.S. alliance system by
    tactics of naval warfare. As Captain Shen Zhong Chang in his article on
    21st Century Naval Warfare puts it, ``long-range precision strikes by
    warships, carrier based aircraft and missiles are needed. Submarines
    will make missile attacks on air targets. Long-range combat, missile
    combat, and air force cover will be crucial.'' In 1996 PLA General Ding
    Henggao stated that precision guided missiles (conventional and nuclear
    armed) were the most important single system in China's future defense
    posture.
        Chinese procurement and production reflects its priorities. Sukhoi-
    27, long-range strike aircraft procured from Russia are state of the
    art--200 will become available in the next five years. Kilo class
    submarines, Sovremennyy class destroyers with the deadly Sunbeam
    torpedoes, air refueling, and of course ICBM, MRBM, SRBM, and cruise
    missiles. Over 100 SRMBs (DF-15 or M-9s) are deployed opposite Taiwan,
    according to the latest media reports. The number could reach over 650
    missiles by 2005 according to what some newspapers say is a classified
    DOD study on TMD. The July 1995 and March 1996 Chinese live fire
    exercises in the Taiwan Strait area proved that Chinese aircraft
    performance, tri-service exercise, amphibious attempts were primitive
    and non-competitive. The Chinese trump card emerged as its missiles.
    They were accurate, threatening, and were the main cause of economic
    dislocations in Taiwan. If the threat could be increased 50 fold, the
    potential for intimidation would also be increased. The presence of a
    large number of missiles opposite Taiwan--especially if some were fired
    into the sea-lanes off Taiwan--would represent leverage to get Taiwan
    to the bargaining table on PRC terms. The missiles would not even have
    to impact on Taiwan itself.
        The Chinese also had to raise the stakes for the United States.
    This would be done in two ways. A launch of Chinese missiles could have
    the potential to destroy a U.S. carrier battle group--the capability to
    do this would oblige the Americans to re-calculate the costs of close-
    in intervention. In March 1996, the PRC claimed its threat of missile
    attack kept our carriers out of the Taiwan Strait. Second, a long-range
    ``force de frappe'' would have the potential of taking out an American
    city. This strategy was used on the Soviet Union by the PRC in the
    1970s. Although the USSR had many times the number of missiles China
    had, the Soviets would have to think hard before sacrificing the city
    of Irkutsk to Chinese nuclear attack. So much more for the Americans
    who have demonstrated their fear of casualties (for instance, in Iraq
    in Desert Fox, in Somalia with our pullout, and now in Kosovo). The
    Chinese raised this question in 1996: Would the Americans sacrifice Los
    Angeles over a long distance turmoil off Taiwan?
        The Chinese have also systematically improved their monitoring of
    U.S. naval movements in the Pacific by setting up a major PLA space
    tracking station in Kiribati Islands (Tarawa, to World War II buffs).
        PRC historical war fighting--many battles on the periphery: A quick
    review of Chinese combat history bears out the strategy spelled out in
    1985 of wars on the periphery. China has fought often, sometimes
    clinically sometimes passionately, with mixed results of both success
    and failure.

       In 1950 in Korea, Chinese used surprise, overwhelming force
            and favorable terrain to achieve remarkable victories over the
            U.S. in the initial stages. Later, when faced with superior
            weaponry and positional warfare China seriously compromised its
            position and settled for half a loaf.
       In the Taiwan Strait crises at Tachen, at Quemoy, and North
            and South of Taiwan, the PRC achieved some success by bluff and
            posturing at Tachen in 1954. In 1958, however, it retreated in
            Quemoy when faced with U.S. naval power and a Taiwan Airforce
            that shot their planes out of the sky. In 1995 and 1996 the PRC
            discovered missiles as its most potent weapon of attack and
            coercion, but it figured it needed 10 more years of build-up
            and preparation. China also focused more on developing
            asymmetrical warfare to deal with U.S. power. This meant to
            disrupt U.S. command and control and intelligence systems
            dependent on reconnaissance and communication satellites and
            thus exploit U.S. vulnerabilities, not to confront its
            strengths.
       In India in 1962, PRC demonstrated again that it could use
            surprise, superior force and favorable terrain to decisively
            defeat a weaker foe on its periphery over a matter of sovereign
            territory.
       In 1969, in contrast the PRC faced a superior force on its
            northern and western borders in the Soviet Union. China was
            driven at the time by the impassioned nationalism of the
            Cultural Revolution. China was frequently defeated by the
            Soviets in numerous border clashes, so it turned to its former
            enemy, the U.S., to offset its weaknesses against the USSR and
            to assure its survival against a more powerful enemy.
       In January 1974, in a brilliant but limited amphibious
            operation PRC seized the Paracel Islands in the mid South China
            Sea. This was carefully planned and executed against South
            Vietnamese units with perfect timing--the U.S. was pulling out
            of Vietnam and the Soviets were not in yet. The South
            Vietnamese were weak and unprepared. The Chinese have now just
            expanded a major airstrip on these islands clearly aimed at
            bolstering their position against the Spratlys further south.
            In a preliminary test of military power on the sea, the Chinese
            navy defeated the Vietnamese in the Spratlys in 1988. It is
            currently building up the PLA's presence on Mischief Reef in
            defiance of the weaker Philippines.
       In 1979, the Chinese failed against Vietnam in a clumsily
            executed land war. A hardened battle tested Vietnamese military
            inflicted heavy casualties and the Chinese withdrew after
            ``delivering a message''. In a wake up call, the Chinese
            discovered their army was lazy, fat, poorly trained, and their
            use of command and control very poor.

        What lessons emerge from this history is a China that tries to know
    its strengths and its opponent's weaknesses. China can adjust quickly
    when it faces superior forces and has a strong will. But it also moves
    quickly and decisively when opportunities arise.
        In the 1980s Chinese politics were given over to economic
    development, the military was cut back so China could establish a
    strong and growing economic base. The military emphasis was placed on
    getting foreign military technology, one way or another, to build a
    modern hi-tech military--this resulted in the massive transfers of
    technology from the U.S. (including from Los Alamos as well as many
    other acquisitions), from Europe and Japan. Beginning in 1991, a
    massive transfer took place from the former Soviet Union which was both
    vulnerable and broke but which had a huge military machine up for sale.
        Desert Storm was also a wake-up call. Deng Xiaoping, the paramount
    ruler, and his old colleague at the time Yang Shangkun watched the U.S.
    performance on TV from Shanghai in February 1991. They were impressed,
    as were their military leaders. The U.S. was both an opportunity and a
    danger. China decided it was essential to get with the U.S. military--
    to understand its revolution in military affairs, to study its
    logistics, master its hi-tech war fighting capabilities, and to probe
    its psychology of fighting. The PRC also recognized the need to deny
    the U.S. access to forward-based facilities and to hold U.S. naval
    power projection capabilities at risk. The PRC in the interim decided
    it had to accept the sale of F-16s to Taiwan and would settle for a
    poor deal on its longstanding FMS case left over from Tianamen
    sanctions. The PRC was not ready to take on the U.S. and in fact in the
    short term needed the U.S.
        The U.S. leapt at the opportunity to re-engage China in a military
    relationship and by 1994, the U.S. and China were setting up a cozy
    collaboration with numerous exchanges covering many of the areas where
    the Chinese needed our help. This reached an all-time high in 1999 when
    the U.S. and China agreed on over 80 exchanges including logistics,
    training, visits to air-drop exercises, U.S. nuclear submarines and
    aircraft carriers.
                              the role of missiles
        It is against this backdrop, sckechily presented, that missile
    politics can be viewed.
        First, the Chinese see an ally in the anti-missile defense policies
    of the Clinton Administration. An administrative cable sent as recently
    as March 19 this year spells out how our diplomats should soft pedal
    the TMD issue and even how the Administration is blocking its
    development and deployment. In fact, since 1995 the Chinese have tried
    to shape the debate here in the U.S. by focussing attention away from
    its developments and deployment of missiles to the divisive aspects of
    missile defenses where it has U.S. supporters.
        Second, the PRC works with its supporters in the U.S. to drive home
    the point that missile defense is a make-or-break issue in Sino-
    American relations. The Chinese repeat that for the U.S. to work with
    Japan and Taiwan to establish a missile defense system basically
    undermines the premises of the new China-U.S. relationship established
    in 1971-72 and reaffirmed by the 3 communiques signed between the two
    countries. The Chinese describe this as an intolerable American
    intervention which will not only increase the chances for Taiwan
    independence, but will cause China to perfect and expand its own
    missile forces.
        In this explanation, the Chinese seem to ignore the fact that
    Taiwan already has an anti-missile defense system in its advanced
    Patriots (PAC 2) and that the PRC's own missiles and nuclear
    modernization have proceeded rapidly without the existence of TMD, and
    incidentally, with the assistance, sometimes open sometimes stolen, of
    the U.S.
        Third, the Chinese have taken direct aim at NMD and TMD by
    insisting that the Anti-Ballistic Missile Treaty (ABM) be ``maintained
    and strengthened,'' according to Sha Zukang, China's top arms control
    and disarmament official. China has not signed the AMB but feels free
    to comment on it. It is interesting to note that Sha's views were given
    credibility by The Carnegie Endowment for International Peace which
    widely distributed them in a February 1999 memorandum. It is clearly in
    China's interest to use any means at its disposal to denude the U.S.
    and its friends of defense against China's growing missile capability.
    Sha claims China will be ``forced to develop more advanced offensive
    missiles by TMD. This will give rise to a new round of the arms race.''
    What Sha chooses to ignore is China is already building up and
    deploying its missiles now while NMD and TMD are still only in the
    testing stages. In this case, history is instructive. In 1981, the PRC
    and its supporters in the U.S. ran a pre-emptive political strike to
    block the sale of FX fighters for Taiwan, and despite Reagan's
    election, this attempt worked largely because of well focused academic
    and business support and numerous sympathizers among the American
    bureaucrats. The lesson was, if the stakes are raised early, the
    chances of blocking TMD will be improved.
        The Chinese have also used the old Sunzi adage--``When capable
    feign incapacity'' to lull the U.S. Even our Administration has picked
    up on this. The Chinese say they have just a few long-range missiles,
    and the U.S. has 7,000, so what is the problem? The U.S. could
    overwhelm China in a flash. As Sunzi said, ``Use humility to make them
    haughty.'' So the U.S. thus dismisses the Chinese threat as minimal.
    President Clinton himself did this in his statement of April 7, 1999 in
    which he said the nuclear balance is with us--the Chinese have only two
    dozen weapons while we have 7,000. The PRC has also consistently
    dissembled on its military budget, citing very low figures which do not
    conform with reality, while still admitting to double digit growth but
    from a factually inaccurate low base figure.
        Underneath this soporific, the Chinese say the U.S. won't take
    losses--the Chinese will, because this is a matter of their sacred
    sovereignty. A nationalistic frenzy is in fact being whipped up
    constantly in China on Taiwan as Chinese territory, and on U.S.
    flagrant interference in Chinese internal affairs. The PRC is aware
    that its own record of sacrificing its civilian population is well
    documented. The Great Leap Forward of 1958-60 probably cost 30 million
    Chinese lives to Chairman Mao's lunatic social engineering. Mao is
    widely quoted as saying China could afford to lose 300 million people
    in a war with Russia.
        There is also a parallel here to Kosovo. The U.S. has ruled out the
    use of ground forces early on and telegraphed this to Milosevic. He
    took heart and moved decisively against the Albanians. If we rule out
    TMD for Taiwan early on, the Chinese will also take heart and will note
    that the chances for their coercive missile diplomacy working have
    improved. They will then be tempted to increase their leverage over
    Taiwan by increasing the missile threat.
                                    epilogue
        China is a great civilization, a great people and a potential
    friend and partner of ours. Once it abides by International rules of
    trade, introduces the rule of law across the board, expands its
    electoral base, and opens up its system, the problems on its periphery,
    including those with Taiwan, will be manageable, if not solvable.
    China's great achievements in its monuments, its civilization, art, and
    culture are the envy of the world. But we are also aware of the
    brutalities in building the monuments such as the Great Wall and Grand
    Canal, and more recently the madness of the Great Leap Forward and
    Cultural Revolution. There are those in China who seek military
    solutions, and missiles have become the instruments of choice. There
    are also those, and the Premier could be one of them, who see China's
    role primarily as an economic competitor and as more benign. So it is
    these economic forces to which we must appeal. The recent Chinese
    economic slow down however may have diminished the leaderships economic
    legitimacy, and forced them to rely marginally more on the military.
        Despite this, it is still in our interest to stress the economic
    aspects of the relationship. It makes little sense and is misleading to
    label our current relationship a ``constructive strategic
    partnership,'' It is no such thing--China is against the expansion of
    NATO, against our policy in Kosovo. It has regaled against the
    cornerstone of our Asian policy, the U.S.-Japan security alliance. It
    is against nuclear inspections in North Korea, and at least publicly
    has supported the North Korean missile shots of 1998. It is against our
    policy of guaranteeing Taiwan's security by defensive arm sales, and it
    refuses to rule out use of force. China has challenged us constantly on
    our policy of curbing the proliferation of weapons of mass destruction.
    But still, what the Chinese say and do has to be taken seriously--China
    is a nuclear power, has ICBMs, a long track record of military combat
    and willingness to take losses. It also often uses rhetoric effectively
    in disarming its opponents.
        There are many ways we should and can engage China. This has been
    our policy since 1972 and it has largely worked when we have defended
    our interests with skill and persistence. It has not worked when we
    have vacillated, caved in, apologized and blustered.

              Sunzi said, ``Therefore those who win every battle are not
            really skillful--those who render other armies helpless without
            fighting are the best of all. The best victory is when the
            opponent surrenders of his own accord before there are any
            actual hostilities.''

        This is a large part of China's strategy towards the U.S. and
    Taiwan today. Military intimidation and gong-banging (if you will) are
    important ingredients. The Chinese are counting on a reduced U.S.
    military presence in Asia over time while they improve their own
    comparative advantage. A strong element of political and psychological
    warfare is present and is increasingly focused on NMD and TMD. The very
    fact of this focus telegraphs these vulnerabilities. S. 693 comes to
    grips with some of these vulnerabilities. Our response is especially
    important when improving our software cooperation with Taiwan. This is
    spelled out in (b) Plan: concerning communication, planning, education
    and training. This has been our greatest shortcoming to date.

        Senator Hagel. Mr. Ambassador, thank you, and Mr.
    Secretary, thank you again.
        I am going to leave here in a few minutes and Senator Frist
    is going to jump in and complete the hearing. But before I go,
    I would like again to thank you both.
        Mr. Ambassador, I would like to direct a general question
    to you, following along with your testimony. Should we be
    connecting trade, WTO, and other such relationships more
    directly to the Chinese in our overall relationship as to how
    it embroiders around the completeness of that relationship,
    especially in light of some of the military-strategic issues
    that we have with them?
        Ambassador Lilley. Frankly, Mr. Chairman, I think that the
    World Trade Organization entrance of China should be handled on
    the merits of commercial arrangements. I think that it is very
    important for us to establish tough requirements for China to
    enter and be able to carry out those requirements after it
    enters.
        I think, if you bring human rights, proliferation, or other
    issues into this, that it would be destructive. I realize it is
    very hard to separate these things in our minds. It has a very
    high psychological impact, what the Chinese have done in human
    rights and the way they deploy their missiles off Taiwan. But I
    think we can handle that in other ways.
        The trading arrangement is something that is good for us
    and good for them and I think we should proceed with it on its
    own merits.
        Senator Hagel. What about the relationship between the
    Chinese and the North Koreans? Should we be asking the Chinese
    to do more in that relationship?
        Ambassador Lilley. I think we have.
        In my experience, particularly in the 1991-92 period, the
    Chinese were helpful in getting both Koreas into the United
    Nations. They played a crucial role in that.
        They had been the major supplier to North Korea of food,
    oil, coking coal.
        We have indications that the Chinese have gone to the North
    Koreans and said to them quietly don't fire another missile or
    there goes KEDO. This also gives the Japanese a card to play on
    theater missile defense. This is directly against China's
    interests. Don't do it.
        But publicly they have said we have no business talking
    about it to the North Koreans because it is a sovereign right
    for them to launch satellites.
        But, you know, there is a bizarre aspect of this which I
    think gives you insight into what the North Koreans are like.
    Do you know that the North Koreans actually claim that that
    satellite is up there and that it has gone around the world
    1,000 times, that it transmits messages?
        So when we sit down with them and say that it was a failed
    shot, they say you're wrong, it succeeded.
        So you sort of walk through the looking glass when you
    begin to deal with these people on issues like this.
        But I think the Chinese have gone through this for many
    years. They have that sort of frozen smile on their face when
    they deal with the North Koreans. But I am sure they get some
    quid pro quo for what they give the North Koreans. I think it
    is in their interests not to let the North Koreans have weapons
    of mass destruction.
        Senator Hagel. Thank you.
        Mr. Secretary, you heard Secretary Schlesinger's testimony
    during the question and answer period. Is there anything that
    you disagree with from what you heard in Secretary
    Schlesinger's answer to how we deal with the Russians,
    specifically, on moving forward on amending the ABM Treaty?
        Dr. Schneider. It is not so much a disagreement as an
    amplification.
        Abrogation is not the only alternative in dealing with the
    treaty, apart from renegotiating it. The treaty contains a
    provision for withdrawal under ``supreme national interest,''
    which permits either party to withdraw from the treaty without
    necessitating the act of abrogation.
        I think that it may be possible to renegotiate the treaty.
    But I think we need to be focusing on making sure that our
    response is threat compliant, as distinct from treaty
    compliant; that is, the nature of the threat is driving the
    contours of what is required for U.S. authorities to produce an
    effective ballistic missile defense. In amplifying the
    Secretary's point, the idea of getting only a single, small
    change to accommodate the proposed NMD is probably not going to
    be adequate for our needs.
        Senator Hagel. Would you care to offer your opinion in
    regard to how we are handling Kosovo?
        The Ambassador, I thought, framed it up rather well in the
    sense of other nations taking some measure of our will and our
    commitment. He spoke specifically of the Chinese. Is there
    anything you would like to add to what the Ambassador said, as
    well as Secretary Schlesinger, as to how we are handling this
    now and the kind of consequences our actions will have on these
    very specific, dangerous issues, such as missile proliferation?
        Dr. Schneider. I believe that how we handle the situation
    in Kosovo will be seen as a very informative characterization
    of how the United States will react to future security crises.
    So, even though the facts in the Kosovo case are not likely to
    be replicated precisely in other theaters, how we respond to it
    is going to be extremely important. The specter of incremental
    application of force at relatively low levels, the relatively
    modest amounts of air attacks that were undertaken--initially,
    only about 50 sorties per day, which does not provide the kind
    of shock to the system that would have affected expectations--
    now that these have clearly not worked, the incremental
    application of attack helicopters, absent other measures, is
    likely to prove ineffective as well.
        I think the stakes are very high, and this is an occasion
    where I think the Congress has a constructive opportunity to
    try to help identify a national purpose in this intervention
    and to identify the means necessary to implement that so that
    we do not replicate other policy failures in the use of force
    that we have seen to our distress, unfortunately, on a number
    of other occasions.
        Senator Hagel. Thank you.
        Senator Frist.
        Senator Frist [presiding]. Thank you, Mr. Chairman.
        Secretary Schneider, I was particularly interested to hear
    your comments that Iran might pose a ship-based short-range
    missile threat to the United States in the near-term.
        I guess I would ask you to elaborate on that. Do you
    believe that any national missile defense deployed by the
    United States should be able to neutralize this threat?
        Dr. Schneider. Thank you, Senator.
        First, with respect to Iran's ability to do so, I believe
    Iran has the ability to do so now. It can be done with SCUD
    missiles which are deployed on mobile transporter-erector-
    launchers. These devices can be simply picked up by a
    conventional cargo crane and the entire apparatus dropped in
    the hole of a ship. With the hatch closed, it would not be
    possible by national technical means to identify the cargo in
    that ship.
        When Iran deploys the Shahab 3, which is likely later this
    year, it is also deployed on a mobile transporter-erector-
    launcher and could similarly be deployed. Iran is particularly
    troublesome in this regard because, as I said, of its history
    of being able to use non-Iranian nationals for activities for
    which it chose not to accept responsibility.
        Hence the possibility of this I think needs to be taken
    seriously.
        I mentioned in my response to Chairman Hagel's question
    that our architecture of theater missile defense needs to be
    threat compliant rather than treaty compliant; or at least the
    threat needs to drive the way in which we perceive the
    architectural requirements.
        Because the nature of the threat is both short-range
    missiles launched from, say, surface ships clandestinely, as
    well as long-range ICBM's, the architecture of our national
    missile defense needs to reflect that. So we have to have a
    component that is able to intercept the missiles not only
    coming from relatively short range, which means they have a low
    altitude trajectory, as well as those that come from a long
    range, which have a relatively high altitude trajectory.
        The short-range systems will also be capable of being
    launched from virtually any azimuth, as Secretary Schlesinger
    suggested.
        Therefore, I believe the architectural proposals, whether
    they are made by the administration or the Congress, should be
    subjected to a criteria that asks whether it is responsive to
    the threat.
        Senator Frist. Thank you.
        Ambassador Lilley, should the United States be concerned
    over continuing reports that China may be pursuing multiple
    independently targetable re-entry vehicles?
        Ambassador Lilley. I think we should be concerned, but I
    don't think there is anything we can do about it except tighten
    our security at Los Alamos and various other places.
        They have been after MIRV for a long time. They tried to
    get the SS-18 from the Soviet Union intact. I think Secretary
    Perry mentioned this some time ago, that they may have
    succeeded.
        That is a solid fuel missile with MIRV capability. They are
    determined to get MIRV.
        I think one of the most specious arguments that is made is
    that theater missile defense will force them to get MIRV. You
    hear this from the Chinese apologists. They are going that way
    anyway. It is in their national interest. They could use
    theater missile defense as an excuse and have Americans run
    around parroting their line. But they are after it.
        Unless we get into extensive missile talks with them, which
    certainly have not happened yet--they have put out the word,
    for instance, among a lot of the Chinese-Americans in the
    academic community that they have not deployed the missiles,
    that they are not there, that we are wrong. They say it is too
    expensive, we don't have the engineers, we don't have the
    underground sites, it is an American fallacy. Or, as somebody
    put it, it's an Arabian Nights story.
        It is this particular disconnect you have with them when
    they deny it flatly--did you commit espionage in the States?
    Did you hear the response that the premier made? ``It is our
    government policy not to do this. Nobody told me we did it. I
    asked the military and they didn't know anything about it.''
        But did he ever deny it?
        So I think that the evidence is overwhelming that they are
    engaged in this. But they deny it. They deny illegal campaign
    funding. ``We don't do it.'' Well, how about Liu Hun Ching's
    daughter and Johnny Chung's money? ``Oh, that didn't happen.''
        So when you get into the missiles, you have to get into
    some pretty hard ground, as we did with the Russians. The way
    you do that, of course, is to make it really difficult for them
    by having a capability to deal with their coercive missile
    diplomacy. That is where I think the Americans have shown some
    vacillation.
        I think they see a window of opportunity in the next 24
    months to press very hard to get us to commit ourselves.
        Senator Frist. Thank you.
        Mr. Secretary, I am on another committee--not the Foreign
    Relations Committee--where I serve as chairman of the
    Subcommittee on Science, Technology, and Space. I have a real
    interest in dual use technologies. With the increasing
    availability of dual use technologies, particularly through the
    space launch programs, we see this enhancing of the ability of
    countries to produce ballistic missiles and reentry vehicles.
        Now, because of limitations contained in the START Treaty,
    Russia has been constrained in its ability to set up space
    launch facilities in foreign countries, such as Iran and China.
        But the Clinton administration has offered to change the
    START Treaty and give Russia the opportunity to locate as many
    as three new space launch facilities outside of its territory.
    But when asked by Chairman Helms to make its offer conditional
    upon a formal Russian agreement that it would not put
    facilities in any country that is pursuing ballistic missiles,
    the administration refused.
        Do you know if it is wise for the administration to make
    such an offer to Russia at this time without obtaining the
    commitment I have described? What would be the impact of a
    Russian space launch program in a country like China or Iran?
        Dr. Schneider. I think it would be a high risk to U.S.
    proliferation objectives for the United States to acquiesce in
    an expansion of the number of launch sites, especially in
    countries that are ballistic missile proliferation risks.
        As I mentioned in my testimony, most of the Russian space
    ICBM's have also been modified for space launch purposes. One
    that is being marketed now is a variant of the SS-25, which is
    a mobile solid fuel ICBM. The amount of technology transfer
    that is associated with the conduct of space launch activities
    makes it inevitable that military ballistic missile technology
    would be transferred to a recipient.
        Hence, the proliferation objectives of the United States
    would be frustrated by such a course. So I would urge that the
    U.S. Government abstain from liberalizing this regime.
        Senator Frist. Mr. Ambassador, do you have any comment on
    that issue, that of space launch or the Russian space launch
    program in a country like China or Iran?
        Ambassador Lilley. Again, I think China is going to proceed
    with a space launch capability. We think they are going to have
    a man in space, perhaps for the 50th anniversary of the October
    Revolution.
        They see clearly and their own writings reflect their
    fascination with the use of satellites to direct warfare. And
    certainly their military has been directed as a high priority
    to work on taking out our satellites, putting out our eyes.
        So they are thinking very much along these lines. I don't
    think they will be inhibited by any international agreements
    that are reached. I think this is a matter of national defense
    and they will proceed as they must.
        Senator Frist. Mr. Secretary, I agree that we should move
    ahead quickly to deploy a missile defense. Do you believe that
    we should negotiate with Russia to allow for such a defense
    within the confines of a revised ABM Treaty, or should we move
    forward on deployment and invite Russia to join us on the more
    cooperative measures?
        Dr. Schneider. I share Secretary Schlesinger's concern
    about the fragility of politics in Russia and especially
    bilateral relations. However, the rapidity with which the
    threat has matured to the United States makes this an urgent
    matter of national security. The requirements for
    liberalization in the ABM Treaty extend far beyond those that
    are required to support the proposed national missile defense.
        I mentioned some of those during my testimony.
        So, unless you can get a very far-reaching revision of the
    terms of the treaty, then I think we should take advantage of
    the provisions of the treaty that allow for withdrawal from the
    treaty upon 6 months notice and proceed to produce a missile
    defense system that addresses the threat we face.
        Senator Frist. Thank you.
        I want to shift gears again a bit, away from both of your
    oral presentations, to South Africa. South Africa became a
    nuclear power even in the face of what was supposed to be
    political, economic, military, and geographic isolation.
    Different factors than those in the former Soviet Union have
    led to what some term a brain drain among South African whites,
    but on a much smaller scale.
        Certainly, disaffected elements of South Africa's military
    have achieved notoriety or infamy as extremely effective
    military assets out there for hire.
        With that potential outflow of knowledge and talent from a
    functioning number of weapons and missile technology program, I
    wanted to ask you to help me address several issues for me to
    gain a better understanding of the potential proliferation
    issues that this represents.
        I guess, first, have we seen a brain drain of nuclear
    weapons talent or technology from South Africa, either to
    specific programs, or to specific countries, or to the open
    market to the extent that it may exist?
        Dr. Schneider. The South African nuclear program was a
    clandestine program. It was not an announced program. So the
    identification of the players in that program have been fairly
    limited. But I think it is important to appreciate that modern
    technology does not require the kind of labor mobility that
    would have been required even a decade ago.
        Now a lot of the pertinent data is readily available
    through networked computers, that is, the Internet, as well as
    substantial means of electronic communication.
        The fact that some individuals from South Africa may be
    traveling to other parts of the world is certainly a
    possibility, as is the case with Chinese, Russian, North
    Korean, Pakistani, Indians and so forth people.
        The mechanism for the diffusion of knowledge about these is
    so substantial that it is probably beyond control now.
        There are a couple of Internet web sites that have precise
    industrial engineering detail for the manufacturer of first and
    second generation fission weapons. So the need for extensive
    clandestine contact with experts is much diminished over what
    it would have been a few years ago.
        Senator Frist. How important is the current South African
    Government's treatment of what is left of the country's
    discontinued and disbanded nuclear weapons program? How
    important is that--or of any ballistic missile program today?
        Dr. Schneider. South Africa has a substantial reservoir of
    expertise that it developed based on its national requirement
    for autarchy. I believe the U.S. Government has had a very
    favorable response from the South African Government concerning
    the protection of sensitive technologies. South Africa has
    enacted a statute and, as far as I understand it, has been
    quite successful in complying with the statute with respect to
    the protection of sensitive technologies and avoid their
    export.
        So I think, at least at this stage, the reaction has been
    quite good and I think we have some basis for optimism that
    South Africa sees it as in its interest to avoid the export of
    sensitive technologies.
        Senator Frist. It sounds as if your level of confidence in
    our defense and intelligence communities' understanding of
    what's left of these programs is pretty good?
        Dr. Schneider. Well, in this case we have a fairly high
    level of cooperation from the South African authorities,
    supported by a statutory regime, in which we have some access
    and continued contact. It makes it possible for us to have
    higher confidence in what we do know about South Africa.
        This, of course, contrasts sharply with some of the other
    countries where we do not have such access, where clandestine
    WMD and ballistic missile programs are well underway.
        Senator Frist. Thank you.
        Ambassador Lilley, given your assessment of China's
    intentions, which you outlined very well, for acquiring
    missiles, do you favor our deploying a national missile
    defense?
        Ambassador Lilley. No question, sir. We should.
        May I just add something to your last question? I think a
    much more serious problem in terms of proliferation of weapons
    of mass destruction is the former Soviet Union and the degree
    to which it is involved in China. We get indications that it is
    enormous. It is not just the weapon systems I talk about here,
    but it is the Russian nuclear engineers, it's Russian
    propulsion engineers, it's Russian jet engineers building up a
    Chinese military capability.
        It's the outflow of experts. As far as I know, we have been
    able to monitor some of it, but not enough of it.
        The other thing I would say is that we have been more
    successful in curbing nuclear missile programs with our
    friends. We stopped one in Taiwan and in South Korea; whereas
    both China and North Korea have proceeded with nuclear programs
    when we have bottled up the programs in Taiwan and South Korea.
        You can think about the strategic implications of that.
    Whether we did the right thing, we did it and we did it
    successfully. We stopped those programs of our friends.
        What is unfortunate in all of this is I do think our North
    Korean deal and the agreed framework undercuts our position. I
    think Secretary Schlesinger mentioned this. We are selling them
    two 1,000 megawatt reactors for shutting a known nuclear
    facility in Yongbyon. It's a country with 11,000 caves and an
    absolute determination to get nuclear weapons and long-range
    missiles. Their survival depends on it and they are not going
    to commit suicide. It is built into their psyche.
        So we have a problem here, certainly in convincing the
    Chinese that it is in our common interest to curb North Korean
    ambitions. This has succeeded to a limited extent.
        Other areas we have to work on include we have to think
    about carefully how we manage a Chinese missile threat. What
    are the stages that we have? Do we go from a theater missile
    defense to an ability to knock down a token number of missiles
    in an exercise to an alternate ability to disrupt their system
    through electronic warfare? Or do you have an ability to take
    out their launching sites after a first launch? Or, in a final
    determination, do you consider massive retaliation? There is a
    whole series, it seems to me, of counter missile measures that
    have to be thought through when we deal with a major missile
    threat.
        Senator Frist. With deploying a national missile defense,
    as you went through China's motivation for acquiring missiles,
    would a failure to deploy a national missile defense just
    reenforce Chinese views that missiles are a critical military
    equalizer vis-a-vis the United States?
        Ambassador Lilley. That certainly has been the evidence so
    far. When we look at their tactics, we see that they have
    clearly spelled out missiles as their first priority. I mention
    in my testimony that one of their leading defense generals made
    this statement flat out, that this is what we're after.
        We look through their writings and this is what they're
    going to do. We see it in terms of watching the work of their
    institutes, the engineers and scientists they select for this
    priority work, the money that goes into it. It is clearly a
    first priority.
        How do you deal with this? That is our question. They made
    up their mind as to what they are going to do. I don't think
    there is very much question about that.
        Senator Frist. Thank you.
        Mr. Secretary, the Rumsfeld Commission, of which you were a
    member, determined that North Korea, Iran, and Iraq would, and
    I quote, ``be able to inflict major destruction on the U.S.
    within 5 years of a decision to acquire such a capability, 10
    years in the case of Iran.''
        What are your views on whether that decision has been taken
    or not by North Korea and Iran?
        Dr. Schneider. That is one of the areas that is virtually
    impossible to tell. We will not know when a decision like this
    has been made.
        We do know that in States that have clandestine WMD and
    ballistic missile programs, they take extraordinary measures to
    protect the secrecy of their decision processes. In the case of
    Iran, for example, it has a parallel system of government--one
    government led by President Khatami, which is the civil
    government, and a separate and parallel government led by
    Islamic authorities. It is the Islamic authorities that are
    running the WMD and ballistic missile programs.
        The Iranian constitutional system permits this sort of
    thing to flourish and we are likely never to know when they
    have decided to go ahead with the deployment of a ballistic
    missile program. We will only know after we begin to see them
    in the field.
        Senator Frist. Thank you.
        The Clinton administration has negotiated an agreement with
    Russia, Ukraine, Kazakhstan, and Belarus to formally
    reconstitute the ABM Treaty, which dissolved along with the
    Soviet Union.
        Is this a sensible approach to take?
        Dr. Schneider. No, I don't believe so because, as Secretary
    Schlesinger said, simply in diplomatic terms it would be
    difficult to negotiate an agreement with additional parties.
    And, in fact, the burden of the discussion we have been having
    in the United States, even within the administration, has been
    to look to ways to liberalize the treaty rather than to make it
    more difficult.
        Senator Frist. Do you recommend the Senate approve an
    agreement to reestablish the treaty with these four new
    partners?
        Dr. Schneider. No, I do not.
        Senator Frist. I have one final question. Many recent
    intelligence assessments have not paid a great deal of
    attention to the possibility of an accidental or unauthorized
    launch from the former Soviet Union. Do you believe that the
    danger of such a launch has increased, decreased, or remained
    substantially the same over, say, the last 5 years?
        Dr. Schneider. There are several reasons to suggest that
    the danger has increased. One example of this relates to how
    Russian authorities react during the period of a crisis, even a
    brief one.
        There was a launch of a Norwegian sounding rocket in 1995,
    and this launch was misinterpreted, at least briefly
    misinterpreted, by the Russian early warning system. This led
    to a rapid escalation up the decision ladder in Russia.
        The problem was quickly diagnosed and the crisis was
    brought to an end. But if you examine what has happened to the
    integrity of the strategic rocket forces subsequent to the
    dissolution of the former Soviet Union, the inability to
    maintain a substantial fraction of their command and control
    system in a modernized state is causing a problem, the most
    recent being the evidence that the Y2K program, the computer
    glitch, associated with the change from the end of 1999 to the
    start of 2000, may severely affect aspects of Russia's early
    warning system.
        That has stimulated what I think is a very constructive
    program of consultation between the United States and Russia on
    this particular problem. But I think it underscores the fact
    that, in a crisis, the Russian system may be prone to failure.
        Senator Frist. Thank you.
        Ambassador, I have one final question.
        Should the United States begin a robust program of
    cooperation on theater missile defenses with our allies in Asia
    as a way of offsetting China's missile strategy?
        Ambassador Lilley. I think this has really already started
    with Japan. The cost of the Chinese missile shots in 1995 and
    1996 are beginning to ratchet up.
        Those shots have given great stimulus to the Japan-U.S.
    security treaty and its new guidelines, which frankly is an
    anathema to the Chinese. They have given impetus to theater
    missile defense cooperation with Japan, which is moving ahead
    better than it ever had before.
        They have increased Taiwan hostility toward China and
    Taiwan has a reluctance to go back and work with them in
    constructive ways. And I think also they could possibly have
    affected technology transfer to China on dual technology that
    would affect missile development.
        So I guess what I am trying to say is that we should
    proceed with Japan because I gather from Premier Zhu Rong-ji's
    trip, he began to separate out our theater missile defense for
    Taiwan from Japan. I think Japan is almost being accepted as an
    inevitability--although the Chinese threw a tantrum about it
    earlier-on and threatened the Japanese.
        They seem to be backing off on that because they can see
    that the Japanese nationalism is increasing, particularly after
    President Jiang Zemin's trip last year. That trip bombed.
        The Japanese were lectured by Jiang on historic massacres,
    crimes, and war criminal acts.
        The Japanese did these acts but they don't like to be told
    constantly about it.
        The Chinese have set in motion counter activities which
    they now find rather hard to deal with. So it seems to me--and
    I have laid out the logic for this in my paper--that we have no
    choice but to proceed on missile defense in view of the
    selection the Chinese have made.
        Senator Frist. And would you add South Korea and Taiwan?
        Ambassador Lilley. Well, I'll tell you, South Korea does
    not want it. South Korea has so far been very reluctant to take
    it for a number of reasons--first, because China is necessary
    to them for their policy in North Korea. And I know from my own
    experiences and close relationship with their leaders that the
    South Koreans do not want to offend China on this issue, and
    that China has indicated they will be very offended.
        Second, they see that theater missile defense does not do
    much good for them. The North Koreans are poised up there on
    the 38th parallel with these long-range rockets that could
    decimate Seoul. There is nothing they could do about it, or
    about North Korean SCUD missiles coming in en masse.
        So they have really sort of bowed out of it.
        As for Taiwan, that gets into a highly tricky political
    subject. Again, I agree with Secretary Schlesinger. You don't
    want to confront this one at this time. The Chinese have laid
    down the marker, as I've explained. But it seems to me we move
    ahead on this.
        I said you start with the software because this is the
    least objectionable aspect of it. Then, when once you get a
    workable system, then you can make your decision of how you
    want to use and deploy it.
        If the Chinese do keep up their missile diplomacy, then you
    look at the TMD as an integral part of an overall anti-missile
    system that we can develop in that area.
        Senator Frist. Thank you both very much.
        Mr. Ambassador and Mr. Secretary, thank you for being with
    us and for your very enlightening testimony and the question
    and answer period.
        Dr. Schneider. Thank you.
        Ambassador Lilley. Thank you, Mr. Chairman.
        Senator Frist. With that, we stand adjourned.
        [The following statement was submitted for inclusion in the
    record.]

    Prepared Statement of Robert D. Walpole, National Intelligence Officer
         for Strategic and Nuclear Programs, Center for Strategic and
                    International Studies--December 8, 1998

    north korea's taepo dong launch and some implications on the ballistic
                      missile threat to the united states
        Good morning. I welcome the opportunity to be here today to talk
    about the recent North Korean Taepo Dong launch, and more broadly the
    ballistic missile threat to the United States. Assessing and defining
    the threat to our homeland and to our interests worldwide is one of the
    most important intelligence missions in the post-Cold War world. At the
    outset, I want to underscore that the Intelligence Community considers
    foreign assistance to be fundamental to that threat, not merely an
    incidental aspect of the problem. The threat is real, serious, and
    growing. In fact, Congress has mandated that we provide annual
    Community reports on the threat. But the threat is also dynamic. Since
    our March 1998 annual report to Congress on foreign missile
    developments, the Pakistani Ghauri, Iranian Shahab 3, and North Korean
    Taepo Dong-1 missiles/launch vehicles have all been tested. In light of
    the latter, we published a classified update memorandum in October on
    the North Korean Taepo Dong missiles and some potential implications
    for the future.
    Taepo Dong-1 Launch
        Let me begin with the August 31 Taepo Dong-1 satellite launch
    attempt. While the system's third stage failed, the launch confirmed
    Intelligence Community concerns the past several years regarding North
    Korea's efforts to acquire an ICBM capability; the launch also
    demonstrated some unanticipated developments.
        We have been following North Korea's ICBM progress since the early
    1990s, most notably, its efforts to develop what we called the Taepo
    Dong-1 medium-range missile and the Taepo Dong-2 ICBM, both of which we
    had assessed were two-stage missiles. The fact that we have been
    following these efforts for many years is significant:

       First, it indicates that North Korea has taken about ten
            years since it made the decision to acquire an ICBM capability
            to conduct a flight test, and deployment has not yet begun.
            Projections of missile development and deployment need to be
            country- and program-specific; we cannot follow a single
            template for the world.
       Second, it means that we have been reporting on and making
            projections about these developments for years. In some cases,
            our projections overestimated North Korean capabilities; for
            example, some projected that the Taepo Dong-2 would have flown
            by now. In any event, our reports over the years relate to
            questions about current and future Intelligence Community
            abilities to warn about ICBM programs and developments.

        The August launch used what we had called the Taepo Dong-1 medium-
    range missile, but it had an unanticipated third stage. Although the
    North Koreans failed to place their satellite into orbit, they tested
    some important aspects of ICBM development and flight, such as multiple
    stage separation, roughly on the timetable we expected, but using a
    vehicle configuration we had not anticipated.
        The existence of the third stage concerns us. First, we had not
    included it in our earlier projections; neither had outside experts
    looking at our intelligence. Second, it and potentially larger third
    stages have significant implications for the Taepo Dong-2. Third, it
    raises many proliferation concerns. We are continuing to conduct more
    analysis on it, trying to identify more about it, including its
    capabilities and why it failed.
        Our update memorandum assesses the North Korean capabilities
    demonstrated by this launch and the threat implications of the Taepo
    Dong missiles. The memorandum notes, for example, that the first and
    second stages performed to North Korean expectations, providing what
    amounts to a successful flight test of a two-stage Taepo Dong-1 medium-
    range missile. With an ability to deliver several hundred-kilogram
    payloads about two thousand kilometers, the system poses a threat to
    U.S. allies and interests in the region.
        We also assess that after the North Koreans resolve some important
    technical issues, including assessing why the third stage failed, they
    would be able to use the three-stage configuration as a ballistic
    missile, albeit with great inaccuracy, to deliver small payloads to
    ICBM ranges; that is, ranges in excess of 5,500 km--the smaller the
    payload, the longer the range.
        Taking note of that relationship between payloads and ranges, the
    update looks at the implications of lighter payloads for the Taepo
    Dong-2, which we had assessed in the mid-1990's could deliver larger
    payloads--several hundred to a thousand kilograms--4,000 to 6,000
    kilometers. At the upper end of that range, the Taepo Dong-2 could
    reach mainland Alaska and the Hawaiian Islands with these heavy
    payloads. Simple physics tells us the lighter payloads could go
    further. The update memorandum also looks at the implications of the
    third stage on the Taepo Dong-2; with the stage demonstrated in August,
    the Taepo Dong-2, again with significant inaccuracy, could probably
    reach the rest of the United States, depending on the size of its
    payload.
        We also discussed proliferation and transfer implications of the
    missiles to countries such as Pakistan, Iran, and Iraq (if
    unrestrained). Finally, the update discusses our assessments of these
    countries' biological, chemical, and nuclear weapons programs.
        We have learned that we need to be much more explicit in our
    warnings about missile developments--not just indicating that a country
    has an ICBM program, that it could flight test and deploy an ICBM in
    given years, all of which are important messages. We also need to
    include clearer language and more details about how we might and might
    not be able to warn about other specific milestones in an ICBM
    development effort, judgments that will likely vary by country. We have
    determined that concepts like ``deployment'' vary by country; in some
    cases, for example, deployment may not require dedicated, long-term
    missile basing facilities.
        The Taepo Dong launch demonstrated--in a way that words alone
    cannot--only one of the emerging threats facing the U.S. interests. Our
    March 1998 annual report was prepared as our first response to a
    request by Congress for a yearly update of that threat assessment.
    Under the DCI's direction, the 1998 report responded to criticisms
    levied at a 1995 National Intelligence Estimate. It also incorporated
    the recommendations of outside experts who reviewed the 1995 estimate.
    As a result, the 1998 report addresses concerns regarding how we
    discuss foreign assistance, alternatives to increasing a missile's
    range, and approaches to circumvent development. Work is already
    underway on the 1999 report, and we are looking differently at how we
    characterize uncertainties, alternative scenarios, and warnings as a
    result of our interaction with outside experts since the March report
    was published. With the continued involvement of outside experts, I
    expect successive reports to be better, addressing additional questions
    as they are asked.
    Our 1998 Report
        This morning I would also like to outline the March 1998 report;
    discuss areas where the substantive conclusions might agree or disagree
    with those of other experts; and discuss what we are doing differently
    for our 1999 report. While I wish you all could read our March 1998
    report, which gives a full appreciation for our views and concerns
    about this growing threat, it remains classified, and therefore cannot
    be released to the public. But, I can give you a feel for what the
    report says.
        Let me first make four points on our methodology.

       One: we do not expect countries to follow any specific
            pattern for ICBM development. In fact, the United States, the
            former Soviet Union, and China all took different approaches.
            We frequently caution ourselves against any mirror-imaging.
            Just because a country took a certain amount of time--long or
            short--to develop and deploy an ICBM does not mean another
            country will.
       Two: we recognize that foreign countries can hide many
            activities from us. These countries are generally increasing
            their security measures and are learning from each other and
            from open reporting of our capabilities. Hence, while I am able
            to share somewhat with you today, I will not go beyond limits
            that will help them hide even more from us.
       Three: with limited data, we are forced somewhat to use
            input and output methodologies to evaluate the threat. In
            addition, the Intelligence Community must attach likelihood
            judgments to its projections; thus, we project scenarios we
            judge to be most likely and include other scenarios with
            likelihood judgments attached. Let me repeat, we agree with
            others that many scenarios are possible, with varying degrees
            of likelihood. Indeed, we have looked at many of these rapid-
            development scenarios, including outright sales, which could
            get a country from a decision to ``deployment'' in a matter of
            months, weeks, or even days, depending on one's scenario.
       Four: we do not consider the ``absence of evidence'' to be
            ``the evidence of absence.'' Quite the contrary, intelligence
            analysts routinely face gaps and make analytical judgments to
            project plausible scenarios. Working with limited evidence and
            making judgments is central to our job, as long as we
            underscore when we have little or no evidence. Analysts did so
            in the case of the critical threats some of the missiles pose.
            We also have noted that successful missile tests would give
            countries an emergency launch capability with any missiles in
            their inventory, even without evidence of deployment.

        In the report, we underscore the significant role foreign
    assistance has played and continues to play--indeed throughout the
    report are several major discussions of technology transfer. For
    example, the report begins with several pages discussing the extent of
    foreign assistance from numerous suppliers to even more recipients. It
    also notes how foreign assistance has helped specific missile programs,
    such as assistance with Iran's Shahab 3 missile. The report underlines
    the immediate threat posed by medium-range missiles, our continuing
    concern about existing and emerging ICBM's, and the increasing danger
    that comes from the proliferation activities of countries that possess
    or are developing such systems. We and the Rumsfeld Commission--using
    the available evidence, group debate, and outside expert review--came
    to some different conclusions about some of the timelines for ICBM
    development. Nevertheless, where evidence is limited and the stakes are
    high, we all need to keep challenging our assumptions--a role we will
    perform on this issue at least annually.
        I'll now summarize the body of the report, which focuses on the
    threat through 2010:
        Theater-range missiles already in hostile hands pose an immediate
    and increasing threat to U.S. interests, military forces, and allies.
    More countries are acquiring ballistic missiles with ranges up to 1,000
    km, and more importantly, with ranges between 1,000 km and 3,000 km. As
    Iran's flight test of its Shahab 3 medium-range missile demonstrates,
    this is not hypothetical; it is a reality that has to be dealt with
    now. With a range of 1,300 km, the Shahab 3 significantly alters the
    military equation in the Middle East by giving Tehran the capability to
    strike targets in Israel, Saudi Arabia, and most of Turkey. The
    Pakistani Ghauri, also tested this year, allows targeting of Saudi
    Arabia, Kuwait, and the Gulf, in addition to increasing Pakistan's
    coverage of India.
        Foreign assistance is fundamental to the growing theater missile
    threat. As we describe in the 1998 report, for example, Iran received
    important foreign assistance in developing its Shahab 3. Moreover,
    countries are seeking the capability to build these missiles
    independently of foreign suppliers. The growth in the sharing of
    technology among the aspiring missile powers is also of concern.
        While we project that Russia's strategic forces will shrink, they
    continue to be modernized and will remain formidable. China has about
    20 CSS-4 ICBM's, in addition to shorter-range missiles. Most of the
    CSS-4's are targeted against the United States, and modernization
    efforts will likely increase the number of Chinese warheads aimed at
    the United States. Our report further noted that we judge that an
    unauthorized or accidental launch of a Russian or Chinese strategic
    missile is highly unlikely, as long as current security procedures and
    systems are in place. Russia employs an extensive array of technical
    and procedural safeguards and China keeps its missiles unfueled and
    without warheads mated.
        Among those countries seeking longer-range missiles, the report
    noted that North Korea is the most advanced, a judgment underscored by
    the recent launch. The report noted that North Korea could flight test
    the Taepo Dong-2 missile this year (with only a few weeks left of the
    year, this is likely another overestimation on our part) and that it
    could be deployed in a few years. Beyond the North Korean Taepo Dong-2,
    the March report judged it unlikely, despite the extensive transfer of
    theater missile technology, that other countries (except Russia and
    China as just mentioned) will develop, produce, and deploy an ICBM
    capable of reaching any part of the United States over the next decade.
        Of course, the key words here were develop, produce, and deploy. As
    the report also noted, the purchase of a missile, either complete or as
    components of a kit, is a different matter. In fact, we identified
    several alternative scenarios for a country to acquire an ICBM capable
    of reaching the United States sooner than 2010, without having to
    develop, produce, and deploy one. These included buying an ICBM, a
    space launch vehicle (SLV) to convert into an ICBM, or a complete
    production facility for either. The report judged that the current
    policies of Russia and China make sales-related scenarios unlikely,
    given potential political repercussions, the creation of a self-
    inflicted threat, and China's own military needs. Our report also
    pointed out that we cannot be certain that this will remain true over
    the long term. Indeed, the further into the future we project the
    politico-economic environment, the less certain we would be that the
    ``value'' of the sale would not outweigh these factors in foreign
    thinking. And, as North Korea develops its Taepo Dong missiles, sales
    become an increasing concern.
        But ICBM's are not the only emerging missile threats to the United
    States. A number of countries have the technological wherewithal to
    develop the capability to launch ballistic (or cruise) missiles from a
    forward-based platform, such as a surface ship. Forward-basing from
    dedicated vessels or from freighters could pose a threat to the United
    States in the near term--well before 2010.
        Our abilities to warn about the above-mentioned threats and
    postulated concerns vary. The 1998 report assessed that:

       We could provide five years warning before deployment that a
            potentially hostile country was trying to develop and deploy an
            ICBM capable of hitting the United Slates, unless that country
            purchased an ICBM or SLV (including having another country
            develop the system for them); had an indigenous SLV; or
            purchased a turnkey production facility. The comments I made
            earlier about our reporting over the years on North Korean ICBM
            development efforts underscore that warning ability.
       We could not count on providing much warning of either the
            sale of an ICBM or the sale and conversion of an SLV
            (conversion could occur in as little as two years).
            Nevertheless, if a hostile country acquired an SLV, we would
            warn that the country had an inherent ICBM capability. I note,
            however, that both the United States and the Soviet Union used
            systems we did not consider as ICBM's to place their first
            satellites into orbit. The satellite we orbited weighed only 14
            kg.

        These two warning capabilities must be understood in tandem.
    Unfortunately, the warning related to sales may dominate in the near
    term. As North Korea proceeds with its Taepo Dong developments, we
    assess that they will follow their current path and market them; at a
    minimum, aspiring recipients will try to buy them.

       We probably would obtain indications of the construction of
            a turnkey facility before it was completed, providing several
            years' warning.
       If a country had an SLV, it could probably convert it into
            an ICBM in a few years, significantly reducing warning time.
       Adapting missiles for launch from a commercial ship could be
            accomplished covertly and probably with little or no warning.

        Finally, our report noted that non-missile delivery of weapons of
    mass destruction--biological, chemical, nuclear and radiological
    weapons--poses a serious, immediate threat to U.S. interests at home
    and abroad.
    Outside Views of March 1998 Report
        The tests of several medium-range missiles since that report was
    published underscored our theater concerns expressed in March. The
    three-stage Taepo Dong-1's ability to deliver small payloads to
    intercontinental ranges underscored our concerns about the possibility
    of a North Korean ICBM test this year. Since our March report was
    published, the Rumsfeld Commission and others have also commented upon
    the threat. There is broad agreement on several points:

       The threat is real and growing.
       Foreign assistance and proliferation are the fundamental
            reasons for the growing threat.
       Foreign denial and deception and resource constraints are
            making our job more difficult.
       There are plausible scenarios that could result in an
            increased missile threat to the United States with little or no
            warning.

        Since information is limited, we also have some areas of
    disagreement. Our projections for North Korea, Iran, and Iraq differ
    from the 5-year general statement made by the Rumsfeld Commission. We
    project each country's programs individually, taking into account
    collaboration and foreign assistance:

       Thus, we were able to illustrate our view that North Korea
            is ahead of the others and could have an ICBM sooner, primarily
            because we believed that North Korea probably made the decision
            to acquire an ICBM at least a decade ago.
       The recently tested Iranian Shahab 3 is based on the North
            Korean No Dong and followed North Korea's test, even with
            foreign assistance, by several years. Nevertheless, Iran will
            continue to seek longer range missiles. If Iran follows a
            pattern similar to the Shahab 3 time frame, it would take them
            many years to develop a 10,000 km range ICBM to reach the
            United States. On the other hand, if they purchased an ICBM
            from North Korea or elsewhere or followed the approach North
            Korea recently demonstrated of placing a third stage on its
            boosters, it would be quicker. If they bought an ICBM with a
            sufficient range and payload capability, further development
            might be a moot point.
       When the Commission published its report in July, it
            considered Iraq to be behind North Korea and Iran relative to
            ballistic missile technology, assessing it would take Iraq 10
            years from decision to deployment for an ICBM. Two months
            later, the Commission revised that judgment before the Senate
            Armed Services Committee, dropping the timeline to 5 years
            along with North Korea and Iran. We consider Iraq to have some
            advantages over other countries. Iraq was ahead of Iran before
            the Gulf war, and it has not lost the technological expertise
            and creativity. If sanctions were lifted, it would take them
            several years to develop a 9,000 km range ICBM to reach the
            United States. As with Iran, if Iraq purchased an ICBM, or
            followed the approach North Korea recently demonstrated, it
            would be quicker. If they bought an ICBM with a sufficient
            range and payload capability, further development might be a
            moot point.
    1999 Report
        We are already working on the 1999 annual report and are planning
    to include significant additional outside expertise and red teaming:

       Private-sector contractors are helping us identify
            alternative development paths that future ballistic missiles
            could take, including specific technologies and potential
            hurdles involved. These efforts include assessments of the
            effects of increased foreign assistance.
       We have scheduled a conference with the Center for Strategic
            and International Studies to have academia and others postulate
            future politico-economic environments that foster missile sales
            and increasing foreign assistance.
       This summer, the Intelligence Community published a
            classified paper that postulated ways a country could
            demonstrate an ICBM capability with an SLV, and examined
            various ways it could convert its SLV's into ICBM's. This work
            will also feed into the 1999 report as a generic look at some
            alternative approaches.
       Finally, drafting is underway on a paper that examines how
            countries could push Scud technology beyond perceived limits.
            Scientists and nonscientists are involved. Sometimes, those
            already outside the box can think outside the box more readily.

        We also intend in the 1999 report--after discussing our projected
    timelines for likely missile developments and deployments, as well as
    our concerns for ICBM sales--to postulate and evaluate many alternative
    scenarios, including those mentioned above. Finally, we will be much
    more explicit and detailed in our discussions about warning. All these
    evaluations will be made through the lens of potential denial and
    deception efforts, to ensure that as our task gets more difficult, we
    provide our policy makers with a clear representation of what we know,
    what we don't know, what we can't know, and finally what we judge based
    on evidence, the lack thereof, and expertise from inside and outside
    the government.
    Conclusion
        In conclusion, I'll state that we, the Rumsfeld Commission, and
    some other outside experts agree that the missile threat confronts the
    Intelligence Community with an array of complicated problems that
    require innovative solutions. I would also emphasize how appreciative
    we are of the Commission's work. I particularly like the fact that they
    received approval to publish a relatively detailed unclassified report
    on the threat. We gave the Commission access to all the available
    intelligence information, regardless of classification.
        Finally, the Commission made a number of excellent recommendations
    for how we can improve collection and analysis on foreign missile
    developments. Indeed, its report reinforces the DCI's call for a
    stronger investment in analysis and more aggressive use of outside
    expertise. Incorporating the Commission's ideas will strengthen our
    work. The missile threat is a serious and complex issue, one of many
    others that the Intelligence Community is working. We use many
    vehicles, including estimates, briefings, and annual reports, to convey
    our analyses and warnings to policy makers and Congress. We will
    continue to do so on this and other issues.

        [Whereupon, at 11:28 a.m., the committee adjourned, to
    reconvene at 10 a.m., May 4, 1999.]

    BALLISTIC MISSILE DEFENSE TECHNOLOGY: IS THE UNITED STATES READY FOR A
                              DECISION TO DEPLOY?

                                  ----------

                              TUESDAY, MAY 4, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10 a.m., in room
    SD-562, Dirksen Senate Office Building, the Hon. Jesse Helms
    (chairman of the committee) presiding.
        Present: Senators Helms, Biden and Lugar.
        The Chairman. Today's hearing is the third hearing in the
    Foreign Relations Committee's series on the 1972 Anti-Ballistic
    Missile Treaty. Today the committee will move from an
    examination of the missile threat to a discussion of the
    technological feasibility of missile defense.
        We are privileged to have with us today to open this
    hearing the very distinguished chairman of the Senate Select
    Committee on Intelligence, Senator Richard Shelby.
        As chairman of the Intelligence Committee, Senator Shelby
    knows the urgency of the missile threat better than anyone
    else, certainly anyone else in the Senate. As the senior
    Senator from Alabama, home of the Ballistic Missile Defense
    Organization of the Department of Defense, he knows the
    programmatic aspects of national missile defense inside and
    out, and if you want to find out how much he knows, engage him
    in a conversation. I do that occasionally, and I learn more
    from Richard Shelby than anybody in this general field.
        Following Chairman Shelby, we will hear from several other
    distinguished experts: Dr. Bill Graham, former Director of the
    White House Office of Science and Technology Policy, and
    General John Piotrowski, former Commander in Chief of Space
    Command. If I have mispronounced your name, I am sorry. We also
    welcome Dr. Richard L. Garwin, a fellow at the Council on
    Foreign Relations, and Dr. David Wright, a fellow at MIT.
        As I noted, this hearing is devoted to an examination of
    the technological feasibility of national missile defense, and
    I am convinced that after years of investment in the SDI
    Program, a national missile defense is eminently doable. The
    United States has proven that missiles can be intercepted with
    other missiles, but the task now is to do it consistently and
    reliably. The task is also to make certain that we can
    consistently strike incoming reentry vehicles even as other
    countries take countermeasures to penetrate our defenses.
        The technological path our NMD program is taking, since it
    was first initiated by Dr. Graham under SDI, is the natural
    course for all technological developments. Consider, for
    example, the effort to break the sound barrier, and so forth
    and so on.
        In the interest of time, I am going to ask unanimous
    consent, and I think I will get it, that the balance of my
    statement be made a part of the record. Senator Shelby, we
    welcome you and appreciate you coming.
        [The prepared statement of Senator Helms follows:]

                   Prepared Statement of Senator Jesse Helms

        Today's hearing is the third hearing in the Foreign Relations
    Committee's series on the 1972 Antiballistic Missile Treaty. Today the
    committee will move from an examination of the missile threat to a
    discussion of the technological feasibility of missile defense.
        We are privileged to have with us today, to open this hearing, the
    very distinguished chairman of the Senate Select Committee on
    Intelligence, Senator Shelby. As chairman of the Intelligence
    Committee, Senator Shelby knows the urgency of the missile threat
    better than anyone else. And as the senior Senator from Alabama--home
    of the Ballistic Missile Defense Organization of the Department of
    Defense (BMDO)--he knows the programmatic aspects of national missile
    defense inside and out.
        Following Chairman Shelby, we will hear from several other
    distinguished experts: Dr. Bill Graham, former Director of the White
    House Office of Science and Technology Policy, and General John
    Piotrowski, former Commander in Chief of Space Command. We also welcome
    Dr. Richard L. Garwin, a fellow at the Council on Foreign Relations,
    and Dr. David Wright, a fellow at MIT.
        As I noted, this hearing is devoted to an examination of the
    technological feasibility of national missile defense. I am convinced
    that, after years of investment in the SDI program, a national missile
    defense is eminently ``doable;'' in fact, the United States has proven
    that missiles can be intercepted with other missiles. But the task now
    is to do it consistently and reliably. And the task is to make certain
    that we can consistently strike incoming reentry vehicles (RV's) even
    as other countries take counter-measures to penetrate our defenses.
        The technological path our NMD program is taking, since first
    initiated by Dr. Graham under SDI, is the natural course for all
    technological developments. Consider, for example, the effort to break
    the sound barrier. Even as of the late 1940's, many scientists thought
    this technically impossible. Yet we ultimately succeeded despite the
    dangers, and failures, and--in this case--the tragic loss of life. Now
    the sound barrier is broken routinely, day in and day out, by passenger
    airplanes flying the Atlantic.
        No doubt, we may hear today from scientists who don't think that a
    national missile defense can be done successfully. But as we consider
    these matters, I hope that the American people will recognize that the
    fact that the U.S. is defenseless today has nothing to do with
    technological issues. Instead, it has everything to do with political
    willpower and adherence to a ludicrous arms control treaty.
        The NMD program has had notable successes despite dramatic funding
    cuts by the Clinton administration. Successes also have occurred in
    theater missile defense programs which demonstrate the feasibility of
    the same basic principles over 130 launches from 1960-1972.
        So I must conclude that some who oppose NMD would have concluded at
    the turn of the century that, given the early failures of Samuel
    Langley and the Wright brothers, efforts to build an airplane should be
    shelved.
        Now, before we turn to our first witness, I want to address the
    matter of ``countermeasures.'' Some have begun putting forward the
    argument that any NMD built can be defeated easily by countermeasures.
    I must caution, however, that countermeasures are not a reality simply
    because someone draws a picture of one.
        I am confident that a good many scientists can draw equally as
    compelling pictures of things to counter the counter-measures. But we
    need not get into an ``art contest'' at this hearing. I hope we can
    confine our discussion to the realm of the possible and not allow
    flights of fancy to lead us to predict either that missile defenses can
    do nothing to protect our country, or that they will be perfect in
    affording such protection.

     STATEMENT OF HON. RICHARD C. SHELBY, U.S. SENATOR FROM ALABAMA

        Senator Shelby. Thank you, Mr. Chairman. Mr. Chairman. I
    ask that my complete statement be made part of the record in
    its entirety.
        The Chairman. Without objection.
        Senator Shelby. Mr. Chairman, it is a pleasure to appear
    before the Committee on Foreign Relations as you continue your
    series of hearings on missile defense. I believe that this
    Nation needs a national missile defense system, and Mr.
    Chairman, we need it now. The threat is real and can no longer
    be ignored.
        As this Nation formulates a national security strategy for
    the uncertainty of the post-cold war world, one key assumption
    which must be considered is that our future adversaries will
    plan to attack the United States where we are most vulnerable.
    Today the United States stands vulnerable to a ballistic
    missile attack. Until recently, this fact was downplayed by
    this administration.
        There was a presumption, and perhaps a hope, that no real
    threat existed. As recently as 1995, intelligence estimates
    were predicting that no credible ballistic missile threat from
    other than the major declared nuclear powers would likely
    appear before the year 2010.
        However, last year the bipartisan Ballistic Missile Threat
    Commission, lead by former Secretary of Defense, Donald
    Rumsfeld, reached a very different conclusion. The commission
    concluded that long-range missile threats to the United States
    might materialize much earlier than had been predicted. The
    report stated that within 5 years of a decision to do so, North
    Korea and Iran might be able to deploy missiles of sufficient
    range to strike parts of the continental United States, and
    that Iraq may be able to do so within 10 years.
        The Rumsfeld Commission also determined that countries may
    be able to conceal ballistic missile development programs from
    our intelligence assets until shortly before deployment. This
    concealment will give the United States little or no warning of
    an imminent threat, Mr. Chairman.
        The events of the past year appear to validate the findings
    of the Rumsfeld Commission and reinforce my belief that the
    threat is real. This past July, Mr. Chairman, Iran launched a
    900-mile range missile capable of striking Israel.
        In August, North Korea fired a three-stage ballistic
    missile over Japan that was estimated to have a maximum range
    of 3,700 miles. If perfected, this missile could reach Hawaii
    and Alaska, and just 10 days ago India and Pakistan each tested
    intermediate-range ballistic missiles with ranges of over 1,200
    miles.
        Additionally, Communist China has developed a force of
    ballistic missiles capable of striking the continental United
    States, and as we are learning, China has been persistent in
    its efforts to acquire advanced missile technology.
        Mr. Chairman, how do we counter this threat? I recommend
    two courses of action. The first was completed when the Senate
    passed the National Missile Defense Act of 1999. This historic
    yet simple piece of legislation, along with a similar measure
    passed in the House, will make it the policy of the United
    States to deploy as soon as it is technologically possible an
    effective national missile defense system capable of defending
    the territory of the United States against limited ballistic
    missile attack.
        The second course of action, Mr. Chairman, is to continue
    our efforts to develop such a system. I support, as does a
    recent report by the Kado Institute, the deployment of a
    limited ground-based national missile system. If we continue
    our investment in advanced technologies, an effective ground-
    based system will soon be a reality.
        Mr. Chairman, some opponents of the national missile
    defense have argued that treaties and superior intelligence
    gathering will protect this Nation from a future ballistic
    missile attack. I do not agree.
        A treaty must add to a nation's security, not limit it, and
    as chairman of the Committee on Intelligence I can assure you
    that although our intelligence gathering is very good, it is
    not perfect by any means. I believe that the security of the
    American people should not depend solely on our ability to
    negotiate treaties or to conduct reconnaissance. We must have
    the ability, I believe, Mr. Chairman, to defend ourselves from
    the growing threat. The deployment of a limited ground-based
    national missile defense system would provide that ability.
        Mr. Chairman, I appreciate what you are doing, and I
    appreciate your time and your courtesy here today. Thank you.
        [The prepared statement of Senator Shelby follows:]

                  Prepared Statement of Senator Richard Shelby

        Good morning Mr. Chairman, Senator Biden and members of the
    committee. It is a pleasure to appear before the Committee on Foreign
    Relations as you continue your series of hearings on missile defense. I
    believe that this Nation needs a national missile defense system and we
    need it now. The threat is real and can no longer be ignored.
        As this Nation formulates a national security strategy for the
    uncertainty of the post-Cold War world, one key assumption which must
    be considered is that our future adversaries will plan to attack the
    United States where we are most vulnerable. Today, the United States
    stands vulnerable to a ballistic missile attack. Until recently, this
    fact was downplayed by the Administration. There was a presumption and
    a hope that no real threat existed. As recently as 1995, intelligence
    estimates were predicting that no credible ballistic missile threat,
    from other than the major declared nuclear powers, would likely appear
    before the year 2010. However, last year the bipartisan Ballistic
    Missile Threat Commission, led by former Secretary of Defense Donald
    Rumsfeld, reached a different conclusion. The commission concluded that
    long-range missile threats to the United States might materialize much
    earlier than had been predicted. The report stated that within five
    years of a decision to do so, North Korea and Iran might be able to
    deploy missiles of sufficient range to strike parts of the continental
    United States, and that Iraq may be able to do so within ten years. The
    Rumsfeld Commission also determined that countries may be able to
    conceal ballistic missile development programs from our intelligence
    assets until shortly before deployment. This concealment will give the
    United States little or no warning of an imminent threat.
        The events of the past year appear to validate the findings of the
    Rumsfeld Commission and reinforce my belief that the threat is real.
    This past July, Iran launched the Shahab-3, a 900 mile range missile
    capable of striking Israel. In August, North Korea fired a three stage
    ballistic missile over Japan that was estimated to have a maximum range
    of 3,700 miles. When perfected, this missile could reach Hawaii and
    Alaska. And just ten days ago, India and Pakistan each tested
    intermediate range ballistic missiles with ranges of over 1,200 miles.
    Additionally, Communist China has developed a force of ballistic
    missiles capable of striking the continental United States. And as we
    are learning, China has been persistent in its efforts to acquire
    advanced missile technology.
        Mr. Chairman, how do we counter this threat? I recommend two
    courses of action. The first was completed last month when the Senate
    passed the National Missile Defense Act of 1999. This historic yet
    simple piece of legislation, along with a similar measure passed in the
    House, will make it the policy of the United States to deploy, as soon
    as is technologically possible, an effective national missile defense
    system capable of defending the territory of the United States against
    limited ballistic missile attack.
        The second course of action is to continue our efforts to develop
    such a system. I support, as does a recent report by the CATO
    Institute, the deployment of a limited ground based national missile
    defense system. If we continue our investment in advanced technologies,
    an effective ground based system will soon be a reality.
        Mr. Chairman, some opponents of National Missile Defense have
    argued that treaties and superior intelligence gathering will protect
    this Nation from a future ballistic missile attack. I do not agree. A
    treaty must add to a nation's security, not limit it. And as Chairman
    of the Senate's Select Committee on Intelligence, I can assure you that
    although our intelligence gathering is very good, it is not perfect. I
    believe that the security of the American people should not depend
    solely on our ability to negotiate treaties or conduct reconnaissance.
    We must have the ability to defend ourselves from the growing threat.
    The deployment of a limited ground based national missile defense
    system provides that ability.

        The Chairman. Senator, I thank you and the committee thanks
    you, and the Senate and the American people ought to be mighty
    grateful to you for what you are doing. What you have done in
    your statement today is what badly needs doing, and that is to
    underscore how little time we have to deploy a missile defense,
    and if we do not get ready, when a missile comes, it will be
    too late, will it not?
        Senator Shelby. It will be.
        The Chairman. I am not going to question you further, but I
    am going to ask the staff to circulate your statement very
    widely, because I think the American people ought to know what
    you have said.
        Senator Shelby. Thank you, sir.
        The Chairman. Thank you for being with us. Now then, I have
    already identified panel No. 2. Dr. Graham, the former Director
    of the White House Office of Science and Technology Policy. We
    have a lot of brain power here this morning, and I am equally
    grateful to each of you for coming here.
        I usually do not start on the left, as policy, but I am
    going to do it this morning.
        I call you the father of all this, Dr. Graham, and we will
    hear from you first.

      STATEMENT OF DR. WILLIAM R. GRAHAM, FORMER DIRECTOR OF THE
          WHITE HOUSE OFFICE OF SCIENCE AND TECHNOLOGY POLICY

        Dr. Graham. Well, thank you, Mr. Chairman, and thank you
    for the opportunity to testify this morning. I would
    particularly like to address briefly the status of technology
    and some of the history of our experience in providing for the
    defense of the United States against ballistic missiles, and
    also the defense of our forces, allies, and friends in the
    world today.
        Of course, much has happened in the world since March 23,
    1983, when President Reagan first proposed that the United
    States address the protection of these interests against
    ballistic missile attack, and I would like to say a few words
    in my oral statement, and then ask that my written comments be
    made available for you.
        The technologies and systems of both offensive ballistic
    missiles and the defenses against them have undergone much
    change over the last 30 years. As the threats evolve, the
    technical challenges and capabilities for defensive systems
    also have evolved.
        During each era the challenges were formidable, only to be
    overcome and replaced by new challenges; however, during this
    evolution, the balance of the offense/defense capabilities has
    gradually been moving from the offense having the advantage to
    the defense having the advantage, and to place the use of
    ballistic missile defense technology in perspective, my written
    testimony reviews the challenges that confronted ballistic
    missile defense in each of the last three decades, and
    identifies the technologies that played key roles in overcoming
    those challenges.
        Nonetheless, the U.S. is today at a substantial
    disadvantage compared with where we could be had we pursued
    ballistic missile defense in a more vigorous manner. The U.S.
    has not built an ABM system since the early 1970's, and, in
    fact, beginning in the late eighties the U.S. has downsized the
    defense industrial base very substantially by over half.
        That downsizing accelerated in the first half of this
    decade, and in the process of downsizing, the U.S. lost many of
    the most knowledgeable and experienced technologists that we
    had in the fields of rocketry, sensing, and other related
    fields that are key to building viable defense systems.
        Many of the problems that we have experienced in the THAAD
    flight test program to date, in fact, are typical of the
    development of the new technology, only in this case we have
    many new technologists who are learning to do advanced designs,
    so we are making the entry-level mistakes and learning from
    them.
        We are paying the price of that downsizing and the loss of
    many of the lead engineers and senior technicians that we have
    been able to draw on in the past.
        Second, on the negative side of the ledger, the ABM Treaty
    has had since 1972 a pervasive chilling effect on the U.S.'s
    ability to make full use of its technological capability to
    provide for our defense. Many examples exist, but I will give
    you one. There is a process and a group in the government, and
    it has been there for many years, called the Compliance Review
    Group, that examines systems and design for their compliance
    with the ABM Treaty.
        It is composed primarily of lawyers, and they try to make
    legal interpretations of this diplomatically negotiated ABM
    Treaty. However, they do not review preliminary design
    concepts, they refuse to look at those. They insist on having a
    fully fleshed out design before they take a look at it. That in
    itself is a multi-year process just to get to the Compliance
    Review Group, and then the Compliance Review Group takes a
    substantial part of a year to conduct its review.
        The fact is that you are down the road a few years before
    you get the word from the Compliance Review Group as to whether
    you have a design that you can proceed with or not.
        Well, the message that sends to the engineers and
    technologists is stay away from anything that might be viewed
    as a limitation by the ABM Treaty, and we treat the ABM Treaty
    as a third rail in technical design processes, and that places
    a very severe constraint on us using our full technical
    potential for designing ABM systems.
        An example of this is the fact that today the ABM system
    design that is being pursued by the administration suggests
    that we put our ballistic missile interceptors in Alaska, but
    among other things, use them to defend Miami, FL. This is a
    long way, and it takes an enormous amount of technical
    performance that is unnecessary if we built more interceptors
    and placed them in more locations either on shore or off shore
    around the country.
        One more comment, and that is the lack of the now 24 years
    of experience since we deactivated the safeguard ABM system
    means that on both the operational front and on the technical
    design front there is a big gap in our experience in dealing
    with ABM systems, in building them, designing them, testing
    them, and operating them, and we are today trying to recover
    from that lack, but it will be several years before we make up
    for the education and the continuous learning that we did not
    obtain during the last 24 years when we could have been
    operating at least a rudimentary ABM system and chose not to.
        Admiral Crowell used to make the case that it was against
    the U.S. interest to abandon the ABM Treaty, because the
    Russians, the Soviets, in that case, had gained so much more
    experience by operating their ABM system continuously since the
    early seventies, compared to us, that they could break out
    faster than we could.
        I think he was right, at least in part, that we did lose a
    lot of experience during that time and we have to make it up
    now.
        On the positive side, the advantage in the perpetual
    contest between offense and defense has over the last two
    decades, as I mentioned, been shifting toward the defense, at
    least in the technologies underlying our ballistic missile
    defense capability.
        To mention some of the areas where the advantage is
    shifted, certainly, the capabilities of our radar systems have
    improved substantially, both in the transmit-receive function
    and also in the data processing, which I will come to in a
    moment.
        Miniaturized spacecraft and spacecraft optical systems have
    made great progress in the last two decades, as have spacecraft
    infrared, visible, and ultraviolet sensors. Lasers, based on
    aircraft and satellite platforms have made enormous progress,
    and that progress is being used both in the airborne laser
    program being pursued by the Air Force today and in the space-
    based laser that is being pursued by the Ballistic Missile
    Defense Organization.
        Small rocket propulsion, which is used, among other things,
    for maneuvering and diverting kinetic interceptors, or rocket-
    based interceptors, has improved greatly, and we can now build
    small thrusters with the thrust-to-weight ratio of over a
    thousand, but most important, our capability in computing has
    increased both by the decrease in the size of computers, but
    also simultaneously in the increase in their capability. In
    fact, these are related, and we have gone from an era when we
    had computers weighing several tons in the early 1960's or mid-
    1960's, like the Control Data-6600, and able to perform 10
    million operations per second, to computers built on a single
    chip, which weighs a small fraction of an ounce, and are able
    to perform hundreds of millions of operations per second, and,
    in fact, when connected properly in groups and operated with
    the appropriate software, they can now do hundreds of billions
    and in some cases even thousands of billions of operations per
    second.
        Nothing has advanced like the speed and memory capacity of
    our computers in this last 20 years, and that is one of the key
    areas that benefits the defense far more than it benefits the
    offense. So in summary I would say the technology balance,
    while it will be an eternal challenge, and one can always
    invent an offense that will overcome a given defense, and one
    can always conceive of a defense that will overcome a given
    offense, the technology balance is moving toward the defense,
    and the U.S. should be taking full advantage of that. Today we
    are taking advantage of it under the serious constraints of the
    ABM Treaty. Thank you.
        [The prepared statement of Dr. Graham follows:]

                  Prepared Statement of Dr. William R. Graham

    the status of technology for defense of the united states, its forces,
               and its interests against ballistic missile attack
        Mr. Chairman and distinguished members of the committee, thank you
    for the opportunity to testify on the status of technology for defense
    of the United States, its forces, its allies and friends, and its
    interests throughout the world today, against ballistic missile attack
        Much has happened in the world since March 23, 1983, when President
    Reagan first proposed that the United States address the protection of
    our vital interests against the threat of ballistic missile attack. I
    would like to address the results of the investment that our country
    has made in the technology of ballistic missile defense through the
    Strategic Defense Initiative and its successor, the Ballistic Missile
    Defense Organization.
          results of the u.s. investment in ballistic missile defenses
        The technologies and systems of both offensive ballistic missiles
    and defenses against them have undergone dynamic change over the last
    thirty years. As the threats evolved, the technical challenges and
    capabilities for defense systems also evolved. During its own era, each
    of the challenges was formidable, only to be overcome and replaced by
    new challenges. However, during this evolution, the balance of
    capability has gradually been moving from the offense to the defense.
    To place the use of ballistic missile defense technology in
    perspective, this testimony reviews the challenges that confronted
    missile defense in each of the last three decades, and identifies the
    technologies that played critical roles in overcoming those challenges.
    The 1950s
        In the post-World War II era, the first strategic threat to the
    continental U.S. arose from Soviet long-range bombers carrying nuclear
    weapons. Defenses against aircraft--particularly bombers--had undergone
    extensive development as a matter of necessity in World War II, when
    allied forces in Europe employed a combination of radar for early
    warning, aircraft for high-altitude and standoff interception, and
    barrage balloons and ground-based anti-aircraft guns for local defense,
    all integrated using point-to-point voice communications over telephone
    and radio links.
        As the strategic aircraft threat to the U.S. developed in the
    1950s, the need grew for higher performance, more integrated air
    defenses. Air defense performance was improved through the development
    of several generations of jet interceptor aircraft of progressively
    greater speed, better armament for these aircraft including air-to-air
    missiles, and surface-to-air missiles. These latter missiles were
    usually tracked along with the target aircraft and command-guided to
    intercept by ground-based radars that were usually co-located with the
    missile launchers. The guidance loop went from the radar to the target
    and the interceptor missile, back to the radar, through an electrical
    analog computer, and to the interceptor missile with guidance commands.
    The systems were not sufficiently accurate to rely on a hit-to-kill
    intercept, so the interceptor missile carried either a proximity-fused
    high explosive warhead or a small nuclear warhead. The NIKE series of
    surface-to-air missiles, developed under the leadership of Bell
    Laboratories and deployed widely in the U.S. during this era, were
    examples of this technical approach. Countermeasures that had to be
    overcome included chaff jammers, and both passive and active decoys.
    The 1960s
        By the beginning of the 1960s, the progress that the Soviet Union
    was making in the development of long-range ballistic missiles, along
    with their ability to make large-yield thermonuclear weapons as
    demonstrated in their atmospheric tests, stimulated serious
    consideration in the U.S. of a national missile defense. The point of
    departure for such a system was the NIKE anti-aircraft system, which by
    that time had evolved through several generations of design and
    deployment. Bell Laboratories redirected its anti-aircraft work to the
    ABM problem, and drew upon its extensive experience to develop what
    became the NIKE X and then the SAFEGUARD ABM system that was deployed
    at a single site near Grand Forks, North Dakota, in 1975.
        The SAFEGUARD ABM system consisted of a long-range surveillance
    Perimeter Acquisition Radar (PAR), a shorter range but more precise
    Missile Site Radar (MSR), ground-based digital computers, ground-based
    SPARTAN missiles for exo-atmospheric intercepts, and Sprint missiles
    for endo-atmospheric intercepts. Both missiles carried nuclear
    warheads, although of quite different types, with each optimized to be
    most effective in its altitude range of operation. The overall
    interceptor control loop was the same as it had been for earlier air
    defense missiles, other than the change from analog to large digital
    computers to solve the fire control equations and guide the interceptor
    to the vicinity of its target.
        The SAFEGUARD system was linked to the Ballistic Missile Early
    Warning System (BMEWS) of radars and communications that had been
    established in the 1960s to monitor Soviet ballistic missile and space
    launches. It was interconnected by commercial long-line telephone
    carriers and military surface-to-surface microwave links, and was
    interconnected and controlled from the NORAD facilities inside Cheyenne
    Mountain near Colorado Springs, Colorado.
        The SAFEGUARD system faced three major technical challenges. The
    first of these was traffic capacity. In the 1960s, digital computers
    were built from discrete components: individual transistors, resistors,
    etc. This form of electronics technology produced several inherent
    limitations on the speed of computation, and also imposed what by
    today's computer standards are severe practical limitations on the
    memory and processor size of the computer. These limitations in 1960s
    computer technology translated mid limitations in the ability of the
    SAFEGUARD system to handle multiple ballistic missiles and other
    objects such as chaff, jammers, or decoys simultaneously, which in turn
    gave rise to the possibility of defeating its defensive capabilities by
    saturating its processors with a barrage or countermeasure attack.
        However, such an attack had drawbacks for the attacker. To produce
    a high-traffic attack, the offense would have to coordinate its
    launches so that the offensive missiles would arrive in the battle
    space of the radar and its associated computers nearly simultaneously.
    This degree of synchronization of the attack not only would place an
    additional requirement on the offense, but would also subject the
    offensive missiles to various forms of fratricide--the destruction or
    disabling of one offensive missile warhead by another.
        To avoid multiple intercepts from a single defensive missile, the
    attacking warheads would have to be spaced sufficiently far apart so
    that one interceptor could not destroy more than one offensive warhead,
    and if the offensive warheads were fused to detonate when attacked,
    sometimes referred to as salvage fusing, the spacing would have to be
    sufficiently large that the salvage explosion of one offensive warhead
    would not kill another in the attack. Even if a following warhead were
    not killed, the anomalous aerodynamic conditions within the fireball
    created by either an offensive or defensive nuclear explosion could
    induce a substantial error in the targeting accuracy of a latter
    warhead--a particularly significant effect when the attack was directed
    against hardencd targets such as missile silos that required
    considerable offensive warhead accuracy to kill. Finally, crater ejecta
    from earlier warheads would still be airborne when later warheads
    arrived and that debris could be struck by rapidly moving incoming
    warheads, causing them to pre-detonate or even to be destroyed.
        Countermeasures had always been a problem for radar-guided anti-
    aircraft. As Soviet missile defenses came into operation, U.S.
    strategic missiles began to incorporate similar countermeasures, and
    there was a concern that Soviet missiles might do the same. Some
    countermeasures, such as lightweight chaff, would only be effective
    outside the atmosphere, but others, such as replica decoys, could be
    designed to look somewhat like offensive warheads from deployment until
    they began penetrating the upper atmosphere and could quickly add still
    more traffic to the defended battlespace. To overcome such
    countermeasures, the performance of both the radar and the computers
    had to be sufficiently accurate to distinguish between the signatures
    and the trajectories and other dynamics of the decoys and the actual
    warheads. This, in turn, put additional requirements on the defensive
    hardware and software capabilities.
        Blackout and other nuclear explosion-induced radar propagation
    problems were another technical challenge. Blackout is caused by the
    ionization created by an atmospheric or exo-atmospheric nuclear
    explosion. That ionization can absorb or distort the radar signal as it
    passes through the region around the explosion, and result in either no
    return signal or a signal improperly directed back to the radar.
    Blackout and related effects would be caused by the explosion of a
    nuclear interceptor warhead, and could be caused by the offensive
    warhead as well if it were salvage-fused. To overcome these problems,
    the defensive system had to maintain a good model of the battlespace
    and the events occurring in it, and had to be able to correct for
    problems less than a total blackout of the radar signal. These
    phenomena imposed additional loads on the radar and its computers.
        Finally, while not solely a technology problem, the siting issues
    associated with SAFEGUARD became a major impediment to its deployment
    in some areas. Missile and radar range limitations of the SAFEGUARD
    system necessitated the deployment of several radar/computer/missile
    installations around the country to protect the entire continental U.S.
    The most stressful threats in terms of battlespace available were not
    the Soviet ICBMs, but rather their sub-launched ballistic missiles--
    SLBMs. SLBMs could be fired from only a few hundred kilometers off the
    U. S. coastline, and could have flight times of ten minutes or less to
    the population centers along the coasts, and to the bomber bases and
    other military facilities inland. However, deploying any systems armed
    with nuclear warheads close to coastal population centers met with
    public and political resistance in some areas.
    The 1970s
        In February 1976, after ten months of operation at the Grand Forks
    site, the SAFEGUARD system was deactivated by Act of Congress. For the
    next seven years, ballistic missile defense activities were focused on
    R&D carried out primarily by the Army's Redstone Arsenal at Huntsville,
    Alabama; the organization that had directed the development of the
    SAFEGUARD system. During that time, substantial progress was made in
    the development of high-powered laser systems suitable for weapons
    applications and multi-spectral space-based sensors by the Defense
    Department's Advanced Research Projects Agency (ARPA), and by the Air
    Force.
        During this era, great progress was also made first by the military
    and then by commercial initiatives in computer hardware technology.
    ARPA and other organizations carried out initiatives to develop large-
    scale, high-speed integrated digital circuits, which took the
    technology from a few tens of transistors on a single semiconductor
    chip in 1970 to tens of thousands in 1980 to numbers approaching ten
    million today. Equally impressive were the gains made in computer
    speeds. In the early 1960s, the world's foremost supercomputer--the
    Control Data Corporation's 6600--had a clock speed of ten million
    operations per second. By the late 1980s, personal computer
    microprocessors had reached this speed, and have continued to advance
    to today's speeds of 500 million operations per second, with good
    prospects for still higher speeds in the near future. Special purpose
    computers have recently been built that operate at speeds of hundreds
    of billions to trillions of operations per second. Integrated circuit
    semiconductor memories have experienced similar advances in capacity
    and speed.
        The enormous progress made in computers during this era resolved
    several of the challenges encountered in the 1970s in the design and
    development of ballistic missile defense systems, including traffic
    handling capacity, nuclear effects modeling, and more countermeasure
    discrimination.
    The 1980s
        The establishment of the Strategic Defense Initiative by President
    Reagan in 1983 was a seminal event in the development of ballistic
    missile defense technology. Diverse activities that could contribute to
    missile defense were brought together from many Defense Department
    organizations, and focused in the Strategic Defense Initiative Office.
    With a new infusion of national interest and funding, rapid progress
    began to be made in the development of lightweight, high-powered laser
    systems and neutral particle beam devices. Early successes included the
    destruction of a TITAN booster structure in a static test stand by the
    Mid-Infrared Advanced Chemical Laser in 1985 and the first test in
    space of a neutral particle beam accelerator--the Beam Experiment
    Aboard Rocket (BEAR) in 1989.
        In the 1960s and '70s, the limitations of ground-based radar
    tracking, relatively slow ground-based computing, and ground-based
    command guidance of the interceptors made it technically impractical
    for the interceptors to be maneuvered with sufficient accuracy to
    actually hit high speed offensive ballistic missile warheads. This
    situation was overcome in the SAFEGUARD system by using nuclear
    explosives on the interceptors to extend their lethal range by at least
    a factor of a thousand over non-nuclear interceptors.
        In June, 1984, the Army demonstrated the feasibility of a hit-to-
    kill ballistic missile interceptor with its Homing Overlay Experiment.
    This experiment used pre-SDI technology, resulting in a kill vehicle
    mass on the order of 1000 kg. The first formative reductions in
    component miniaturization gave rise to the highly successful Delta
    series (Delta 180-183). This sequence of experiments established the
    feasibility of the fundamental operations necessary to enable the
    space-based operation of a ballistic missile defense system. Operations
    ranging from target detection and acquisition to space based intercept
    were conducted. The mass of the kill vehicle used in the Delta series
    was of the order of a few hundred kilograms. The combination of
    miniaturized high-performance components, the large amount of computer
    power that could now be placed on a small interceptor, and the ability
    to integrate advanced components into a semiautonomous hit-to-kill
    interceptor made it possible for the first time to consider deploying a
    ballistic missile defense system composed of interceptors that could
    function with sufficient autonomy and precision so that each could
    intercept a warhead using only its on-board sensors, thrusters, and
    computers once it had been given the battlespace it was to defend and
    the authority to act.
        The miniaturization of sensors, propulsion systems, and computers
    also progressed rapidly; for example, small rocket engines well suited
    for maneuvering either ground-based interceptors or satellites into
    hit-to-kill trajectories were developed that had thrust-to-weight
    ratios of one thousand. Advances in these technologies represented
    major progress, and opened significant new opportunities in the design
    of interceptors and space systems. This progress has been so profound
    that it is revolutionizing the design of both military and non-military
    space systems, and has already strongly influenced the plans, designs,
    and hardware of commercial, NASA, and military satellites.
        The drastic reduction in the size and weight of the components
    which make up hit-to-kill interceptors has enabled new families of
    endoatmospheric and exoatmospheric kinetic kill vehicles. Taken
    together, this family of vehicles is known as LEAP (Lightweight
    ExoAtmospheric Projectile). The mass of these vehicles is as low as 10
    kg in a package roughly the size of a coffee can. These vehicles are
    fully self-contained units which include the seeker, processor,
    guidance, and divert propulsion system--in short, a fully integrated
    projectile with enough computational capability to perform intercepts
    autonomously. Under other technology programs, liquid and solid axial
    engines have been developed which are specifically designed to propel
    the kill vehicles into the target.
        The emergence of the LEAP capability has created the opportunity to
    leverage the AEGIS air defense weapon system currently deployed aboard
    dozens of Navy ships. This approach uses existing investments in
    hardware, infrastructure and training to provide a range of potentially
    near-term ballistic missile defense options.
        A notable example of the ingenious use of SDI technologies was the
    design of the Brilliant Pebbles space-based interceptor in 1987.
    Brilliant Pebbles had been preceded by Project BAMBI, an Air Force
    concept of the early 1960s using space-based ABM kill vehicles that
    would guide themselves to intercept boosting ballistic missiles. But it
    would take another twenty-five years of technical development to make
    BAMBI feasible as Brilliant Pebbles. The BAMBI concept was reborn as
    Brilliant Pebbles of necessity in response to the projected cost of the
    first phase of deployment of a strategic defense system. The cost of
    this system was dominated by the space segment and was driven by
    survivability considerations and the use of technology proven in the
    Delta series. Brilliant Pebbles enabled a drastic reduction in the cost
    of the space segment while meeting all requirements. Brilliant Pebbles
    achieved survivability through proliferation, thereby distributing the
    intercept function across a number of elements. This approach obviated
    the need for expensive measures designed to ensure that every
    individual space-based asset be capable of surviving a direct attack.
    The proliferated nature of the Brilliant Pebbles concept enabled a
    production line approach, allowing dramatic cost reductions through
    economies-of-scale.
        The difference between the earlier space-based interceptor and
    Brilliant Pebbles is akin to the difference between the MILSTAR and
    IRIDIUM communications systems. The Brilliant Pebbles interceptor was
    designed to weigh about 50 kilograms, and be deployed in a
    constellation of a few thousand satellites that, when commanded, could
    conduct autonomous hit-to-kill intercepts of offensive missiles and
    warheads. While the Brilliant Pebbles system was designed to operate
    exo-atmospherically as a defense against longer range missiles, it
    could also intercept missiles with ranges as short as 1000 kilometers.
    Unfortunately, the development of the system was terminated in 1993, at
    the direction of the Administration that took office that year.
        While the production and deployment of Brilliant Pebbles was never
    undertaken, the technology continued to be developed, and was
    ultimately proven with a space system called Clementine. The Clementine
    satellite was composed of all the components of a Brilliant Pebble and
    assembled into a configuration designed to demonstrate surveillance and
    interception for missile defense applications as well as a variety of
    civil space applications. The Clementine satellite was the first
    satellite to orbit the moon since the Apollo program over 25 years ago.
    Using SDI-developed sensors, Clementine produced the first complete
    photographic map of the surface of the moon, and it did so at a variety
    of visible and infrared wavebands. It also found the first indications
    of ice at the south pole of the moon.
        Beginning concurrently with the Brilliant Pebbles development and
    continuing through the present, the Army has pursued development of
    miniature ground-based hit-to-kill interceptors and associated ground-
    based radars, designed to use cueing from space-based sensors for both
    theater ballistic missile defense and national missile defense. These
    interceptors would have a range of from tens to hundreds of kilometers
    depending on their booster velocity at burnout and--most importantly--
    the external sensor and command and control capabilities of the system.
    The Navy also began development of miniaturized ship-based interceptors
    that could be integrated into the AEGIS air defense system and used in
    conjunction with its shipborne SPY-1 radars, their advanced battle
    management system, and space-based sensors.
        To a much greater degree than the space-based interceptor systems,
    the ground and sea-based systems have radar range and horizon
    limitations that in turn limit the performance of interceptors to
    ranges substantially less than the kinematic range of the interceptor
    itself. However, this limitation can be offset to a limited extent by
    using forward based early warning radars and to a large extent by using
    space-based sensors. Drawing from the technological advantages
    exploited by Brilliant Pebbles, the MSTI satellite series (MSTI I--MSTI
    III) demonstrated the feasibility and practicality of such an approach,
    gathered key background data, and demonstrated all the key sensor
    functions--such as target detection, acquisition and tracking. The
    ``footprint'' or defended area of surface-based systems depends very
    strongly on the availability and use of external sensing and tracking
    of offensive missiles.
        Following the conceptual development of the Brilliant Pebbles
    interceptors, and in view of the rapid progress being made in the
    development of small, lightweight sensors and satellites, Dr. Gregory
    Canavan proposed the development and deployment of a constellation of
    about twenty to forty surveillance, tracking, and attack assessment
    satellites, communicating through satellite-to-satellite links with
    downlinks to ground stations from any satellite within line of site, in
    orbits about 1000 kilometers in altitude. The system was called
    Brilliant Eyes, since it used much of the same technology as the
    Brilliant Pebbles interceptor satellites. The Brilliant Eyes system is
    currently being addressed in an Air Force program called the Space and
    Missile Tracking System (SMTS). Unfortunately, that program has
    recently been started for the third time and is proceeding slowly if at
    all.
        The importance of Brilliant Eyes, or SMTS, can hardly be
    overestimated. For example, Figure 1 shows the ratio of the areas that
    could potentially be defended by the THAAD ground-based theater defense
    missile limited only by the kinematics of the missile compared with the
    area defended using only the planned ground-based radar located with
    the missile launcher. For offensive missiles of over about 1,500
    kilometers range, the ratio of defended areas is more than a factor of
    10.

        The significance of space-based sensing such as Brilliant Eyes
    becomes even clearer when the benefits are characterized in terms of
    relative dollar costs to obtain an equal capability. In the case
    mentioned above, the area that a surface-based interceptor system can
    defend using only its co-located radar is one-tenth the area that the
    same interceptor can defend using space-based sensing. Therefore, to
    defend the same area without space-based sensing, ten times as many
    missile/radar systems would have to be deployed, at a cost that would
    be approximately ten times as much as the same capability using space-
    based sensing to its fullest potential.
        The shift in emphasis from the multi-thousand warhead threat that
    could be deployed by the Soviet Union (or its successor, Russia) to a
    much smaller threat that could be deployed today by China, and in the
    near future by other states, has shifted the ballistic missile defense
    focus to smaller scale deployments. A change begun with the Global
    Protection Against Limited Strikes (GPALS) in January 1992, and
    continued through May 1993. With the increase in computer power and the
    absence of nuclear explosives on the interceptors, together with the
    advances in multi-spectral infra-red, optical, and ultraviolet sensors,
    problems of traffic management, discrimination, and blackout have been
    substantially reduced and in some cases eliminated.
    Recent Technical Challenges
        Soon after the Strategic Defense Initiative was begun, a new
    problem was put forward as a potential fundamental limitation to the
    capability of strategic missile defenses. Since the time available for
    operator intervention during an attack would be minimal, the potential
    problem was software--the underlying logical instructions that govern
    the operation of the system's computers, and therefore the system
    itself. Some asserted that it would be infeasible to construct software
    of tens of millions of instructions without introducing errors that
    would only appear during attack and would render the missile defense
    ineffective. However, over the last decade, computer software
    technology has also advanced at a rapid rate, and the ability to test
    software has kept pace, so that today it is routine for people not
    expert in software to install and operate reliable programs of tens of
    millions of instructions on personal computers.
        The cost of missile defenses is periodically raised as another
    barrier to the deployment of effective systems. Fortunately, the use of
    the SDI's miniaturization technologies had a very significant effect on
    reducing systems cost. At the same time that the Brilliant Pebbles
    system was proposed, another military organization proposed a space-
    based system using earlier technologies. Cost estimates of the latter
    system indicated that it would be prohibitively expensive, and raised
    the prospect of terminating space-based interceptor systems. However,
    initial cost estimates of the Brilliant Pebbles system indicated that
    it would have a much lower cost than the system using more conventional
    technology.
        For chemical and biological offensive warheads, submunitions remain
    a concern. They can be dealt with most directly by intercepting the
    offensive missile while it is still in boosted flight, before it can
    deploy the submunitions. Such defensive systems are referred to as
    boost phase interceptors. Since powered flight of an offensive missile
    usually extends through the first one to five minutes of its
    trajectory, only that amount of time is available for performing a
    boost phase intercept. Intercepting an offensive missile in such a
    short time after launch requires both a close proximity and rapid
    response for a rocket-propelled kinetic interceptor. While such a
    capability is technically feasible, for many situations of interest to
    the U.S., kinetic boost-phase interceptors are not being pursued as a
    system development program.
        The Air Force is pursuing another approach to boost phase
    intercept. Building on the progress that has been made in high power
    laser systems, it is developing a system that can be carried in a large
    aircraft and uses a laser beam to destroy missiles in boost phase at
    distances greater than can be achieved with kinetic interceptors. Rapid
    progress has been made in compensating for beam imperfections and
    atmospheric propagation effects, both of which can limit the effective
    range of such a system.
        The U.S. missile defense program has successfully overcome a series
    of formidable technological and systemic challenges. Major hardware and
    software obstacles have been resolved, and miniaturization of sensor,
    propulsion system, and computer technologies have greatly reduced cost
    issues. The diminished size of the anticipated missile threat also has
    significantly facilitated the resolution of technological and
    operational problems. The principal challenge today is not in the
    technology, which has made great progress and continues to advance, but
    in the national commitment to proceed with deploying effective missile
    defenses, and to do so in an efficient and expeditious manner.
        The substantial accomplishments of the Strategic Defense Initiative
    and its successor Ballistic Missile Defense Organization have brought
    about revolutionary advances in other areas of military space
    capabilities and in scientific and commercial space enterprises as
    well. For example, in the military area, the development of small,
    inexpensive, highly capable satellites has given the U.S. the
    opportunity to move away from dependence upon the infrequent coverage
    of specific ground areas by a few large satellites for weather
    observation, reconnaissance, and other functions, and toward nearly
    continuous coverage of all ground areas by constellations of small
    satellites.
        In the scientific exploration and exploitation of space, SDI
    technology has changed the paradigm for spacecraft systems. Before SDI,
    scientific spacecraft built by NASA and other organizations typically
    weighed thousands to tens of thousands of pounds and cost in the range
    of a billion dollars. Today, both deep space and earth-orbiting
    scientific satellites typically weigh in the hundreds of pounds and
    cost about 10% of their predecessors. Clementine, the first U.S.
    spacecraft to orbit the moon in 25 years, and made the initial
    discovery that ice might be present at the lunar southern pole, could
    not have been built without SDI technology. Future scientific
    spacecraft will be even smaller, less expensive, and deployed in
    greater numbers than Clementine and its peers.
        The recent progress in commercial spacecraft and their applications
    is also the result of SDI technology. The constellations of small, low-
    orbit communications satellites such as the Iridium and Teledesic
    systems depend upon highly capable, inexpensive, miniaturized,
    autonomous spacecraft for their commercial feasibility. Today, billions
    of dollars are being invested in these systems, and many billions of
    dollars will be earned over their lifetimes.

        The Chairman. Thank you very much.
        General, is it ``Piotrowski''----
        General Piotrowski. Sir, you pronounced it exactly correct.
        The Chairman. Did I?
        General Piotrowski. Yes, sir.
        The Chairman. General, it is a pleasure to have you. Thank
    you very much for coming. You may proceed.

     STATEMENT OF GEN. JOHN PIOTROWSKI, FORMER COMMANDER IN CHIEF,
                  SPACE COMMAND, COLORADO SPRINGS, CO

        General Piotrowski. Mr. Chairman, thank you so much for
    asking me.
        I would like to draw a historical perspective. My
    background is operational and programmatic, and as you are well
    aware, Mr. Chairman, program success is often largely dependent
    on the goals established, the motivation behind the program,
    and where it sits in the national priorities.
        For example, if President Kennedy in the decade of the
    sixties had said, ``It may be necessary to go to the moon, I am
    not sure, but what I would like to do is develop the
    technology, and by the end of the decade I will review it, and
    if I find the need, then I will make a decision to go to the
    moon.''
        The greatest technological achievement, certainly in my
    lifetime, was the Apollo program. It was not structured that
    way. It was a top national priority. There was an instate, put
    a man on the moon by the end of the decade and bring him back
    to earth, and it was properly funded. I have something the NASA
    administrator used about a month ago in a presentation, and it
    shows that in year 2000 dollars the Saturn rocket alone was $48
    billion. At the same time, the lunar escape module cost the
    Nation about $16 billion in current year dollars.
        As the Senators will remember, that was a time when we were
    building the Great Society, we were fighting a major war in
    Vietnam with a million or so people on the ground, and
    modernizing our weapon systems at a rapid rate. This Nation can
    do daunting technological programs and do them well if they are
    prioritized, if there is an instate, and if we are motivated.
    The motivation is there. As panel one and Senator Shelby
    stated, there is a threat.
        From an operational perspective, I am absolutely convinced
    as an operator that our senior military leaders today, if given
    the tools, can defend America. There is another operational
    advantage to having a ballistic missile defense, whether it is
    national, theater, or global. It devalues ballistic missiles.
    Today they are immutable.
        They are very attractive, because they cannot be stopped,
    but if we could stop them, it would, first, devalue ballistic
    missiles at all levels, and second, open up other operational
    avenues to pursue. For example, if North Korea decided to
    blackmail the United States by threatening Oahu or Los Angeles,
    if we had a ballistic missile defense, the Nation's leaders
    could take a decision to preempt, knowing that if some escaped
    or if some were launched out from under attack, they could be
    defeated, and we could eliminate that scourge permanently.
        Now, again, I would like to end by saying I am convinced
    that our military leaders of today can do this job, do it
    right, make the right decisions and defend America, if given
    the tools.
        Thank you, sir.
        The Chairman. Before Dr. Garwin proceeds, I would like to
    ask the distinguished ranking member of the committee, Senator
    Biden, if he has an opening statement, and I hope he does.
        Senator Biden. Mr. Chairman, I do, and I appreciate your
    graciousness, I apologize for being late, I was still on the
    floor in the aftermath of the last vote, and I will wait with
    your permission until the rest of the panel----
        The Chairman. Very well.
        Senator Biden [continuing]. Goes and then make my
    statement.
        The Chairman. You may proceed.
        Senator Biden. Thank you.

       STATEMENT OF DR. RICHARD L. GARWIN, PHILIP D. REED SENIOR
         FELLOW FOR SCIENCE AND TECHNOLOGY, COUNCIL ON FOREIGN
                        RELATIONS, NEW YORK, NY

        Dr. Garwin. Thank you for the opportunity to appear before
    you. I request that my written testimony be included in the
    record, and I'll summarize it.
        The Chairman. Without objection.
        Dr. Garwin. Thank you. Senator Shelby indicated that an
    enemy would attack the United States where it is most
    vulnerable, and presumably where they can achieve such an
    attack, but unlike Russia, these countries that we are talking
    about today, North Korea, Iran, Iraq, have no capability to
    destroy the United States as a whole. They can nibble around
    the edges, where it is easiest for them, and most difficult for
    us to defend.
        So given a will to damage the United States and our
    geography, Hawaii would be struck by North Korea with short-
    range cruise missiles or ballistic missiles from ships, Los
    Angeles, San Francisco, New York, Washington, Seattle, San
    Diego, are all vulnerable, and we have absolutely no defense,
    and no proposal to defend against these cruise missiles or
    short-range ballistic missiles, or nuclear weapons detonated in
    harbors.
        So my problem with the national missile defense is that it
    defends against a threat which is most difficult for the other
    side to prepare, and as I will indicate, does not do that at
    all either.
        Now, with Dr. Graham, I was a member of the Rumsfeld
    Commission, and with the other eight members, we unanimously
    endorsed the threat that could appear within 5 years by these
    three stated countries, joining the thousands of ballistic
    missile nuclear warheads present in Russia and the ten or
    twenty in China, and, of course, the hundreds available to the
    French and the British. A few other countries could do the
    same, but they are not classed as enemies.
        Rather than give my view of the history of the national
    missile defense program, I want to render a judgment. In the
    early stages of the program it is contemplated that 75 ground-
    based interceptors would be built, and about 25 deployed to
    counter a relatively few warheads. The system specifications
    require an extremely high confidence that not a single warhead
    penetrate to U.S. soil. In my opinion, no system thus far
    proposed could achieve such confidence even against cooperating
    warheads.
        Senator Biden. I am sorry. What kind of warheads?
        Dr. Garwin. Cooperating warheads.
        Senator Biden. Cooperating warheads.
        Dr. Garwin. Warheads that would be launched like puppy
    dogs----
        Senator Biden. I got it.
        Dr. Garwin [continuing]. Wagging their tails, and wanting
    to be slapped with hit-to-kill interceptors. But the problem
    with the national missile defense is not simply that it would
    not fulfill the stated requirement, but that it would have
    essentially no capability against a long-range missile system
    that would be deployed by North Korea, Iraq, or Iran to strike
    the United States with biological weapons or with nuclear
    weapons.
        The problem is really simple. Consider the use of
    biological weapons, a country could put a payload of a hundred
    kilograms or a ton of anthrax or other germs into a reentry
    vehicle, have it come down in the middle of Washington, (or
    upwind would be better), strike the ground, and deliver all of
    these germs.
        The result would be a very narrow plume carried by the
    breeze, which would kill most of the people in its path, but
    would leave those outside the plume untouched, except in the
    case of extremely contagious germs, such as small pox, where
    one carrier could cause an epidemic.
        But a country would make much better use of their payload
    capacity by packaging the biological weapon in the form of
    individual bomblets that would be released just after boost,
    when the ICBM would reach its full velocity, and these would
    fall through space and reenter individually with a limited
    amount of heat shield protection against the reentry heat, and
    after the heat of reentry the shield would be shed, as was the
    case with the reentry of the film capsule in the first U.S.
    strategic reconnaissance system, CORONA; the bomblets would
    fall to earth, where a thoroughly tested device would expel the
    biological agents. Given this approach to increased military
    effectiveness, the planned national missile defense system has
    no possibility of making its intercept so early in the
    trajectory.
        Now, let us look at nuclear warheads. You cannot break up
    nuclear warheads into one-kilogram bomblets, but there is
    something else that could be done against these hit-to-kill
    interceptors which would be equally effective. That is for the
    offense to arrange for the nuclear warhead to be enclosed in a
    balloon, a large balloon made of plastic Mylar, coated with
    aluminum foil, a balloon that could be almost the size of this
    room, and a warhead somewhat bigger than me would be hidden in
    there someplace.
        Everything would work according to plan, the launch would
    be seen by the defense support program, DSP satellites; an
    alert would be sent to the upgraded early warning radars; they
    would see eventually this big balloon containing the warhead or
    not; the interceptors would be launched; an interceptor would
    strike the balloon, it would not strike the warhead, because
    the balloon is so much bigger. It might even, we do not know,
    because of the shock of the collision of the thin balloon
    against the interceptor, it might create enough gas really to
    blow the whole balloon away, but another balloon could have
    been shrunk down on the reentry vehicle and now deployed within
    a second or so, and once again, hide the warhead from further
    intercept.
        If they did not like that particular approach--and people
    often do not use my ideas until 20 or 30 years later, but
    eventually they often do, as with the global positioning
    system, or the cruise missiles, or the laser-guided bomb that
    we pushed so hard in the 1960's--if they do not like that
    particular approach, they could do another countermeasure which
    would be different, using smaller balloons, not much bigger
    than the warhead, so striking the balloon might strike the
    warhead, if the balloon contained a warhead. But in this case
    they could have perhaps ten or twenty balloons made of the same
    plastic, coated with aluminum.
        The purpose of the aluminum is to keep the radar from
    looking in the interior and to keep the infrared or the visible
    from seeing through the balloon. But the reentry vehicle has a
    lot of heat, because it is an object at room temperature, and
    it would be radiating to the balloon, so this balloon would be
    warmer than the other balloons, the decoys, that would have no
    reentry vehicles. No problem.
        You go to your local store, you buy a one-pound lithium
    battery, it might cost you $50, and you put it in these other
    balloons so that they are being warmed just as the reentry
    vehicle warms its balloons.
        Now, we have always from the very beginning ``spun up'' our
    warheads so that they reenter more accurately, but other
    countries have not done that. If you are going to discriminate
    a warhead which is spinning from decoys that are not, well,
    that is an easy thing to do; but if you do not spin your
    warhead, if you have anti-simulation, that is, you make the
    warhead easier to simulate, because it is coated with a lumpy
    aluminum-covered balloon rather than showing its beautiful
    machined surface, then these decoys become much more feasible.
        So the national missile defense would have no capability
    against bomblets carrying biological agents dispersed on
    ascent, or against a nuclear weapon in a large enclosing
    balloon; nor would it discriminate a warhead in a small
    balloon, properly done, from perhaps ten empty decoy small
    balloons; it would neither see nor be able to intercept short-
    range ballistic missiles launched from ships near U.S. shores;
    and it would neither see nor be able to intercept short-range
    cruise missiles launched from ships. Nevertheless, it is still
    possible to protect the United States against attack by long-
    range ballistic missiles.
        Now, first, we have to really believe and attend to our
    deterrent, that is, to ensure that people who strike the United
    States realize that they will be struck back. They may even be
    struck preemptively, as General Piotrowski says, and that is
    something that I would favor under many circumstances.
        Even so, they might build a limited ICBM capability for
    political reasons, despite the insecurity that it would pose to
    them. In addition to devaluing ballistic missiles, building a
    defense against them actually values them, it shows you take
    them seriously. So it is not clear to me which of these
    arguments outweighs the other.
        But if you want to intercept an ICBM, you can do it in
    boost phase. That will handle this nuclear weapon inside its
    enclosing balloon; That would handle the biological weapons
    before they are disseminated, and the task of a homing
    interceptor is a lot easier in boost phase, because it sees the
    rocket plume rather than having to see the----
        Senator Biden. Dr. Garwin, may I ask a question. How long
    is boost phase? When you say boost phase, most people are not
    technically proficient. I assume it means just at the moment it
    is lifting off the pad. Is that all it is, or to what height
    is----
        Dr. Garwin. Thank you. The boost phase typically extends
    for 4 or 5 minutes for an ICBM, because there are three stages
    or so, and the ICBM cannot go too fast in the lower portions of
    the atmosphere, so that is a pretty good number. It is
    possible--we have considered making ICBM's that would reach
    their full speed in 100 seconds.
        They go quite a ways down range, maybe several hundred
    miles, before they reach their full speed, and that is the key
    to the intercept, because the interceptor can launch more
    rapidly, get up to its full speed--the same speed as an ICBM--
    in 100 seconds; and that means that it has this extra 150
    seconds or so to catch up with it if it is launched from
    behind, but if it is launched from the side, then it can be
    launched down range a thousand miles or so, and intercept from
    any region, which might be a thousand miles or more in
    diameter.
        So there is a vast area from which interceptors could be
    deployed, and still make an intercept of a North Korean-
    launched ICBM, launched north, as they must be, against the
    United States, in boost phase.
        We could even, if the Russians cooperate, make a joint ABM
    test range south of Vladivostok, really close. We could use, in
    fact, much simpler interceptors from there, but we could also
    do it from ships or other places in a vast range of
    neighborhoods there.
        VC-based capabilities might be useful for defense of Japan,
    against boost phase, against theater-range missiles launched
    from North Korea. We already have an agreement with Russia and
    three other countries, of September 26, 1997, which I hope will
    be ratified soon, a provision by which the parties to the ABM
    Treaty of 1972 accept the deployment of ballistic missile
    defenses that do not, quote, ``Pose a realistic threat to the
    strategic nuclear force of another party.''
        That is ``another party'' to the 1972 ABM Treaty; but North
    Korea is not a party, there is no reason why we should not have
    a defense against North Korea. China is not a party, but China
    raises different questions.
        So in conclusion, we should not deploy the proposed
    national missile defense unless it is proved capable of
    handling the countermeasures that can realistically be employed
    by the potential adversary, and I really do mean these
    countermeasures of enclosing balloons, and anti-simulation, and
    biological weapons dispersed on ascent.
        Furthermore, the evaluation of national missile defense
    should start from scratch, not to prove that the thing that we
    have proposed will work, because it will not; to start with
    scratch with the use of ground-based or ship-based interceptors
    that will destroy the offensive missiles in boost phase before
    they can release bomblets or separate a warhead that could then
    provide itself with an enclosing balloon.
        Finally, there is no reason to abandon the protection of
    the ABM Treaty that constrains Russian defenses and thus allows
    the United States to deter Russia with modest numbers of
    nuclear weapons, thus facilitating great reductions in the only
    nuclear threat to the survival of the United States. Thank you.
        [The prepared statement of Dr. Garwin follows:]

                  Prepared Statement of Dr. Richard L. Garwin

                                  introduction
        This Committee knows well the characteristics of the threat facing
    the United States, which were reviewed in part by the Rumsfeld
    Commission in 1998. As one of the nine members of that Commission, I
    concurred in the unanimous report published July 15, 1998, which
    assessed the ballistic missile threat to the United States.
        In brief, we considered both nuclear weapons and biological weapon
    payloads as strategic threats. We noted the thousands of warheads still
    available and deliverable by long-range missile from Russia; the 10 to
    20 ICBMs available to China, armed with nuclear weapons; and the
    possibility that any of three additional nations with which the United
    States is not on friendly terms--North Korea, Iran, or Iraq--could
    within five years of a decision to do so have an ICBM that could strike
    some of the 50 United States. This judgment was based on the assumption
    of a concerted program, well funded and given priority, with due
    attention to denial and deception, as it has been increasingly
    practiced by countries that wish to hide the scope of their activities
    from U.S. intelligence.
        Of course, other nations have much greater capabilities than these
    three; for instance, Britain or France could deliver hundreds of
    nuclear warheads against the United States, but we have no fear that
    they would do so. With its space launch vehicle, India could also
    deliver a nuclear weapon, and Israel has apparently quite a few nuclear
    or thermonuclear weapons, but they are also not classed as threats to
    the United States.
        The Rumsfeld Commission further noted that short-range ballistic
    missiles based on ships and armed with nuclear or biological payloads
    would constitute a threat more readily available than ICBMs to North
    Korea, Iran, or Iraq; and that ship-launched cruise missiles available
    commercially would add to that threat. The Rumsfeld Commission did not
    consider as a group the vulnerability of the U.S. to BW attack from
    ships off shore, from cars or trucks disseminating BW, from unmanned
    helicopter crop dusters, or from smuggled nuclear weapons or nuclear
    weapons detonated in a U.S. harbor while still in a shipping container
    on a cargo ship; but these capabilities are more easily acquired and
    more reliable than are ICBMs.
        In January 1999, Secretary of Defense William Cohen announced that
    a decision to deploy a National Missile Defense would be considered in
    summer of the year 2000, based on the existence of the threat and the
    technological readiness of an NMD system to counter it. He modified the
    Administration's ``3 + 3'' program which had promised that within three
    years (by the year 2000) an NMD would be developed capable of
    deployment within the following three years (2003), so that deployment
    would now take place in 2005 in case of a favorable decision in summer,
    2000.
        The ``3 + 3'' program had intended that development would continue
    in the case that deployment was not authorized, so that year by year
    what could be deployed within three years of a decision to do so would
    be increasingly capable. A decision to deploy would need to freeze the
    technology in order to build a system within three (or five years).
                            national missile defense
        Rather than recount my view of the history of the NMD program, let
    me just give a judgment on the program as it is now defined. It is
    contemplated that to counter a relatively few warheads, 75 ground-based
    interceptors (GBI) would be built, and some 20 deployed. The system
    specifications require extremely high confidence that not a single
    warhead penetrate to U.S. soil. In my opinion, no system thus far
    proposed could achieve such confidence, even against cooperating
    warheads.
        Nevertheless, the problem with the NMD system is not simply that it
    could not fulfill its stated requirement, but that it would have
    essentially no capability against a long-range missile system deployed
    by North Korea, Iraq, or Iran to strike the United States with
    biological weapons or with nuclear weapons.
        I make this judgment on the basis of a substantial knowledge of the
    NMD system as it is proposed, of previous efforts to develop a system
    of missile defense of the nation (and of Theater Missile Defense), and
    of a close look over the decades at countermeasures that are feasible
    to defeat missile defenses.
        The problem is a simple one. Begin, for instance, with North Korea.
    If North Korea wished to maximize its capability to cause death or
    damage in the United States by the launch of a first-generation ICBM,
    it would not use a so-called unitary payload of BW, which would perhaps
    deliver tens or hundreds of kilograms of anthrax or other infectious or
    even contagious microbe on some city. The result would be a very narrow
    plume carried by the breeze, which would kill most of the people in its
    path, but would leave those outside the plume untouched, except in the
    case of extremely contagious germs such as smallpox.
        Rather, a country could make much better use of a limited payload
    capacity by packaging the BW agent in the form of individual bomblets
    that would weigh a kilogram or so, and that would be released by the
    missile just as soon as it had reached its full velocity on ascent.
    That is, just after boost phase. The bomblets would fall separately
    through the arc of the trajectory to their target, and would reenter
    the atmosphere without incident, having been provided with a thin
    ablative reentry shield. After the heat of reentry, the shield could be
    shed, as was the case with the reentry of the film buckets of the first
    U.S. strategic reconnaissance system--CORONA, and the bomblets would
    fall to Earth, where a thoroughly tested device would expel the BW
    agent. This could be a mild explosive burster charge or some other
    mechanism.
        Given this approach to increased military effectiveness, the
    planned National Missile Defense system has no possibility of making an
    intercept so early in the trajectory.
        If the adversary has a nuclear weapon that can be delivered by
    ICBM, it can evidently not break it up into 1-kg bomblets. A first-
    generation nuclear weapon would probably have a yield of 10 to 20
    kilotons (like those U.S. nuclear weapons that devastated Hiroshima and
    Nagasaki in August 1945). So the NMD system would have a chance to
    observe the flight--first the DSP satellites would see the booster
    flame (as in the case of BW as well); then the upgraded early warning
    radars would see the warhead in mid-course, together with whatever
    simple countermeasures might have been used (and the spent final-stage
    fuel tank); and X-band radars would perhaps help to discriminate the
    real warhead from decoys or junk. A sufficient number of ground-based
    interceptors would be launched to obtain (in principle) the desired
    damage expectancy by their hit-to-kill intercept against the incoming
    nuclear warhead. If the interceptors were based at Grand Forks, ND,
    there would in general not be time to observe the success of an
    intercept before launching a second GBI. If the interceptors were based
    in Alaska, a launch from North Korea would provide some time for such
    shoot-look-shoot. To my mind, there is no significant difference
    between the protection of the country offered by interceptors based in
    Alaska compared with those based in North Dakota. Protection would be
    negligible in either case. The reason is that a simple countermeasure
    would defeat the system as planned.
        Depending on the preferences of the adversary, this countermeasure
    could take the form of a large enclosing balloon around the reentry
    vehicle that contains the nuclear warhead. Immediately after achieving
    full velocity, the warhead would separate from the final stage of the
    missile, and a simple gas generator containing a few grams of material
    (like that in every airbag in modern automobiles) would gently inflate
    a metallized plastic balloon that had been crumpled down onto the
    warhead by a simple vacuum cleaner exhausting most of the air. Or
    inflation could be done simply by compressed gas. A warhead that might
    be five feet long could be enclosed in a balloon 30 ft. in diameter, so
    that it would be perfectly well visible to the radars and to the hit-
    to-kill homing vehicle of the ground-based interceptor. But the homing
    vehicle which would strike the balloon (if all goes according to plan)
    would have very little probability of striking the warhead contained
    within. A thin aluminum coat on the plastic is opaque to radar and also
    to infrared invisible light, which are the means by which the homing
    kill vehicle (HKV) is expected to strike its target.
        Depending upon the characteristics of an isolated target, such
    intercept might take place in principle with an accuracy of one foot or
    less, providing high probability of kill (if the equipment and software
    is reliable--which it is not yet). But with the aimpoint hidden, the
    chance of striking the warhead would be tiny, considering its small
    size compared with the enclosing balloon.
        One might imagine that the collision of the warhead with the
    balloon would generate sufficient gas from the very high velocity
    impact of the thin balloon on the interceptor as it is going by, to
    blow away most of the remainder of the balloon and thus to expose the
    warhead, bare, to the other interceptors that may follow. This is a
    possibility, and the United States would no doubt wish to test this
    prospect (following the best analysis we can do), but unfortunately for
    the effectiveness of the defense, this approach is readily defeated by
    the offense, without testing in space. The offense could have several
    such balloons shrunk down one over the other, and independently
    expanded when the outermost balloon is blown away.
        It is not necessary to define the countermeasures that an adversary
    nation might use, but only to understand those that might work. They
    could choose among several others.
        Another simple countermeasure that might have greater appeal to
    some, would be to use not a large balloon but a small one, not much
    bigger than the warhead itself. Then additional small balloons would
    serve as decoys, if the HKV could not tell them apart by means of its
    multi-spectral sensor. More than 30 years ago, the Strategic Military
    Panel of the President's Science Advisory Committee, of which I was a
    member, observed that an adversary would no doubt use ``anti-
    simulation'' rather than rely strictly on a decoy's simulating the
    characteristics of the warhead.
        Thus, if the warhead were to be coasting bare through space,
    perhaps spinning in a stable fashion, decoys in order to be credible
    would need to be pretty much the same size and have the same spin.
    However, with anti-simulation, the idea is that the warhead would be
    modified or clothed, so as to make it easier to simulate. The warhead
    would simulate a cheap decoy, rather than the decoys being required to
    simulate an expensive and precise warhead.
        An easy way to begin anti-simulation is to put the warhead in a
    small lumpy balloon. This would take care of the radar simulation quite
    well. It might be better also to have a warhead that is not spun up, as
    was the case with warheads of other countries for a long time. Spinning
    the warhead improves the reentry accuracy, because a displacement of
    the external reentry vehicle from the center of mass of the warhead
    otherwise leads to substantial error. But the first-generation ICBMs
    are so inaccurate that this will not be a significant impairment of
    their accuracy. In any case, it is entirely possible for a warhead to
    be spun up just as it begins to reenter and after all possibility of
    intercept by the NMD system has passed. When to spin is simply a design
    choice, and if spinup before reentry helps to penetrate an NMD system,
    it can readily be done.
        The warhead itself has substantial mass (perhaps 500-1000 lbs.) and
    so does not cool appreciably in its passage through space. Thin empty
    balloons, on the other hand, have no such heat capacity. Nevertheless,
    it takes less than a pound of lithium battery within such a balloon to
    supply as much heat radiation to the interior of the balloon as the
    warhead itself would provide, if the warhead were shrouded in
    commercially available multi-layer insulation, widely used in
    refrigerators, transport of liquid nitrogen, and in space applications.
        While the NMD

       would have no capability against bomblets carrying BW
            dispersed on ascent, or against a nuclear weapon in a large
            enclosing balloon,
       nor could it discriminate a warhead in a small balloon,
            properly done, from perhaps 10 empty small balloons,
       would neither see nor be able to intercept short-range
            ballistic missiles launched from ships near U.S. shores,
       would neither see nor be able to intercept short-range
            cruise missiles launched from ships near U.S. shores,

    it is possible to protect the United States against the attack by long-
    range ballistic missiles.
        The beginning of protection lies with deterrence of such attack,
    and even deterrence of building such a capability. Deterrence against
    use comes from the certainty of nuclear response to nuclear attack
    against the United States, and such a response would be overwhelming.
    Deterrence against building such a capability derives from its lack of
    utility, since its use is likely to be deterred by the threat of
    retaliation. Furthermore, a nation deploying an ICBM system to threaten
    the United States would surely feel vulnerable to preemptive attack, if
    the United States learned where the missiles were based.
        Nevertheless, a limited ICBM capability might be built for
    political reasons, despite the insecurity that it would pose.
        It is possible to intercept the ICBM in boost-phase--while the main
    rocket engines are still burning, so that the task of a homing
    interceptor is far simpler than that posed to the ground-based
    interceptor that must see a cool warhead at great distances in space.
    But such a system has essentially nothing in common with the National
    Missile Defense that is proposed. It would use the existing DSP
    satellites to determine the time and rough direction for launch of a
    ground or sea-based interceptor. But the fundamental characteristic of
    that interceptor is that it should reach ICBM velocity of 7 km/s and
    should do it in about 100 s rather than the 250 s of a typical ICBM.
    Under these circumstances, there is a vast area in which the
    interceptor could be deployed and still make the intercept in boost
    phase. Specifically, against North Korea, such interceptors could be
    deployed at a joint U.S.-Russian test range south of Vladivostok (if
    Russia wished to cooperate with the United States in this regard) or,
    in principle, from military cargo ships in a vast range of ocean area.
        Because such sea-based capabilities might be useful for defense of
    Japan, for instance, against theater-range missiles launched from North
    Korea, and because there is already in the September 26, 1997,
    ``Agreement on Confidence-building Measures Related to Systems to
    Counter Ballistic Missiles Other Than Strategic Ballistic Missiles''
    (signed but unratified) a provision by which the Parties to the ABM
    Treaty of 1972 accept the deployment of ballistic missile defenses that
    do not ``pose a realistic threat to the strategic nuclear force of
    another Party,'' it is possible that Russia, Belarus, Kazakhstan, and
    Ukraine would agree specifically to a few large interceptors based on
    ships to carry out boost-phase intercept of missiles launched from
    North Korea--which is, after all, not a Party to the ABM Treaty.
                                   conclusion
         We should not deploy the proposed National Missile Defense
    unless it is proved capable of handling the countermeasures that can
    realistically be employed by the potential adversary.
         The evaluation of NMD should start from scratch with the
    use of ground-based or ship-based interceptors that will destroy the
    offensive missiles in boost phase--before they can release bomblets or
    separate a warhead that could then provide itself with an enclosing
    balloon.
         There is no reason to abandon the protection of the ABM
    Treaty, that constrains Russian defenses and thus allows the United
    States to deter Russia with modest numbers of nuclear weapons, thus
    facilitating further great reductions in the only nuclear threat to the
    survival of the United States.

        The Chairman. Thank you very much.
        Dr. Wright.

       STATEMENT OF DR. DAVID WRIGHT, RESEARCH FELLOW, SECURITY
        STUDIES PROGRAM, MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
                             CAMBRIDGE, MA

        Dr. Wright. It is a pleasure today to appear before the
    committee. I will summarize my written remarks, which I would
    ask would be put in the record.
        Both the administration and the Senate have singled out
    technical readiness as the key criteria that will affect next
    year's decision on whether or not to begin deployment of the
    national missile defense system. Is the technology ready to
    deploy? I will argue the answer is no. Will it be ready to
    deploy by next summer, when the Deployment Readiness Review is
    schedule? Again, I will argue the answer is no.
        I will then discuss what the United States needs to do to
    find out if the technology is ready to deploy at some point in
    the future.
        When you develop a technology and want to know if it is
    ready for production, you need to do three things. First, you
    need to build a prototype and test it on the test range or in
    the lab under controlled conditions to determine if the basic
    technology is in hand and whether it will work in a benign
    environment.
        Second, once you have demonstrated that the technology
    works under controlled conditions, you need to test it under
    conditions that approximate as closely as possible those you
    would expect to find in the real world, and to assess its
    operational effectiveness in the real world. Three, you need to
    do enough testing to assess the reliability of the technology.
        Satisfying the first criteria is clearly important and
    necessary, but it does not demonstrate technical readiness to
    deploy. The other two criteria must be satisfied as well. In
    fact, satisfying the first condition and demonstrating the
    basic technology may tell you essentially nothing about whether
    the second criteria will be met and how well the technology
    will do in the real world.
        It is obviously important to test for operational
    effectiveness when developing a military technology which an
    adversary will be trying to defeat. Thus, for an NMD system,
    satisfying the second criteria would in part require making a
    best guess about the types of warheads that North Korea, Iran,
    and Iraq would be likely to use in their ballistic missiles,
    and then conducting tests against those types of targets.
        Since the NMD system is in intended to counter ballistic
    missiles carrying weapons of mass destruction, satisfying the
    third criteria and demonstrating reliability is extremely
    important.
        If the United States is going to count on its NMD system,
    it has to know how reliable the system is. Some argue it is
    important to employ an NMD system as soon as possible, and the
    United States should, therefore, be willing to take high risks
    by developing subsystems concurrently and using surrogate
    components and tests, but experience shows that this rarely
    works. In fact, by taking such risks, you are more likely to
    delay deployment than speed it up.
        As the Welch report stated, ``The virtually universal
    experience of the study group members has been that high
    technical risk is not likely to accelerate fielded capability.
    It is far more likely to cause program slips, increased costs,
    and even program failure.''
        No matter what development strategy is adopted, it is
    essential that the United States not cut corners on testing,
    because testing is the only way to find out if the technology
    is ready. The more urgent one believes NMD deployment is, the
    more one should support and insist on an adequate and complete
    test program that satisfies the three criteria outlined I have
    listed above.
        Now, what is the current situation? Well, let us look first
    at whether the United States has satisfied my first criteria.
    There have been no intercept tests of the NMD system, but since
    1982, the United States has conducted 16 intercept tests of
    exo-atmospheric hit-to-kill interceptors, which operate in a
    similar manner to the planned NMD interceptor.
        To date only 2 of those 16 intercept tests have scored
    hits, a 13 percent success rate, and the test record is not
    getting better with time. The most recent successful high-
    altitude test occurred in January, 1991, and the last 11 such
    intercept tests have failed.
        What this test record shows is that learning to do high-
    speed hit-to-kill, commonly called hitting a bullet with a
    bullet, is very hard. General Lyles testified in January that
    one thing that had changed in the previous year was an
    appreciation of ``The reality of how difficult this job is, the
    reality of how tough it is to try and do missile defense, and
    how tough it is to try to get hit-to-kill technology.''
        Thus, as of today, the technology does not justify making a
    decision to begin deployment. Indeed, a year ago the Welch
    report stated, ``After more than a dozen flight tests, we are
    still on step one in demonstrating and validating the hit-to-
    kill system.'' Mr. Welch's report appeared, two more flight
    tests of exo-atmospheric hit-to-kill intercepts have taken
    place, and both failed to hit their targets. Thus, the more
    recent tests only strengthen the Welch panel's conclusion.
        What is the program status likely to be next summer when
    the Deployment Readiness Review is scheduled? The United States
    is planning to conduct four NMD intercept tests between now and
    then. Even if all four of these intercept tests take place
    between now and next June, and are successful, would that
    satisfy the first criteria?
        It would certainly demonstrate the principle of hit-to-kill
    under test conditions, and would be a necessary first step for
    the testing program; however, it would still not indicate that
    the technology had fully satisfied the first criteria, because
    these tests will be performed using surrogate boosters and kill
    vehicles, and not prototypes of the components that would
    actually be deployed.
        A full prototype of the interceptor technology that is
    intended for deployment will not be flight tested until fiscal
    year 2003. Thus, the tests planned for the next year will not
    assess the performance of two of the most important and least
    mature components of the system.
        More importantly, the second criteria will not have been
    met, since apparently none of these tests will simulate real-
    world conditions.
        As the fiscal year 1998 DOT&E report states, ``The NMD test
    and evaluation program is building a target suite that, while
    an adequate representation of one or two reentry vehicles, may
    not be representative of threat penetration aids, booster or
    post-boost vehicles. Test targets of the current program do not
    represent the complete design-to threat space and are not
    representative of the full sensor requirements spectrum,'' that
    is, discrimination requirements.
        It is quite possible for a technology to work well in tests
    and fail in the real world. For example, the Patriot system
    used in the Gulf war did phenomenally well in tests, it had a
    perfect 17 for 17 record in intercept tests prior to the Gulf
    war, yet the Army claims only a 61 percent success rate for the
    Patriot during the Gulf war, and independent assessments of its
    performance as well as statements by the Israeli officials
    indicate that the success rate was actually much lower.
        One reason for the failure of the Patriot to destroy the
    Iraqi al Huseyn missiles is that the Iraqi missiles broke up on
    reentry, creating multiple targets that maneuvered as they fell
    to the ground. These proved to be very effective
    countermeasures, albeit inadvertent ones. Future missiles must
    be expected to incorporate intentional countermeasures to
    confuse or overwhelm the defense.
        Let me make a couple of short points about countermeasures.
    Ultimately, the U.S. NMD system will succeed or fail, based on
    its ability to deal with countermeasures, so before deciding to
    deploy, the U.S. must understand whether the NMD system it is
    developing is likely to work against plausible real-world
    threats. Members of the Rumsfeld Commission have stressed that
    absence of evidence is not evidence of absence when considering
    ballistic missile development. This advice must also be heeded
    relative to countermeasure development for these missiles.
        While some see the Iraqi use of ballistic missiles in the
    1991 Gulf war as a wake-up call to the United States about the
    future ballistic missile threat, it was also no doubt a wake-up
    call to other countries about the future deployment of U.S.
    missile defenses. Those countermeasures should not be thought
    of as an optional add-on that the country might or might not
    decide to put in its long-range missiles at the last minute.
        A country that is developing or trying to acquire
    intercontinental ballistic missiles would no doubt see the
    parallel development or the purchase of countermeasures as an
    integral part of its missile program.
        The bottom line is that none of the three criteria outlined
    above will have been fully satisfied by next summer. At best,
    the first criteria may be partially satisfied, and I think it
    is clear then that by next summer the technology will not
    justify making a decision to begin deployment, but in the
    longer term, what kind of test program would the United States
    need to deploy to determine whether its NMD system is
    technically ready to deploy?
        First, the United States should not set an unrealistic time
    scale for its testing program. The testing schedules should not
    be predetermined, but should be set by the outcome of previous
    tests. There must be sufficient time between tests to
    assimilate the results of one test before conducting the next
    test.
        Second, the United States should set up a red team, whose
    job it is to devise countermeasures using the kind of
    information and technology that is available to developing
    countries. Some of this is already being done, but it must
    become a top priority of the program.
        Third, the NMD testing program should include flight tests
    of the interceptor against the best countermeasures potentially
    available to a threat nation, as devised by the red team, and
    the United States should not deploy an NMD system before it is
    proved effective against the countermeasures devised by the red
    team.
        Fourth, the United States should conduct enough tests to
    assess the reliability of a system. The number of tests
    required will depend on both the system reliability
    requirements and the test record.
        Finally, there should be an independent oversight of the
    overall NMD testing program, and in particular, there must be
    careful oversight to ensure that the red team is independent
    and adequately supported, and that its ideas are incorporated
    in tests.
        Let me conclude by noting that national missile defense is
    a highly politicized issue, and there is great political
    pressure on decisionmakers to do something, but the political
    response must not get too far ahead of what the technology can
    deliver.
        In January, 1999, General Lyles stated, when talking about
    the newly revised NMD program and test schedule, he said, ``You
    will find no programs at all in the Department of Defense that
    have the limited amount of testing and the aggressive schedule
    that we have embarked upon here, even with this revised
    schedule.''
        If the United States is serious about deploying a defense
    against ballistic missiles launched to its territory, then it
    should be serious about finding out if the technology is ready.
    The only way to find that out is by a rigorous and realistic
    testing program. Thank you.
        [The prepared statement of Dr. Wright follows:]

                   Prepared Statement of Dr. David C. Wright

        Mr Chairman, distinguished Senators, it is a pleasure to appear
    before the Committee today.
        Both the Administration and the Senate have singled out technical
    readiness as a key criteria that will affect the decision next year on
    whether or not to begin deployment of a national missile defense (NMD)
    system.
        Is the technology ready to deploy? In this testimony, I will argue
    the answer is no. Will it be ready to deploy by next summer, when the
    Deployment Readiness Review (DRR) is scheduled? Again, I will argue the
    answer is no. I will then discuss what the United States needs to do to
    find out if the technology is ready to deploy at some point in the
    future.
        Thus, I will consider three questions in turn. First, does the
    United States now know enough about the capability of the technology to
    make a commitment to deploy a national missile defense? Second, will
    the United States know enough by next summer? And finally, what will it
    take for the United States to know at any point beyond next summer?
    That is, what does the United States have to do to understand enough
    about the capability of the technology to be able to make a commitment
    to deploy an NMD system that it can expect to be effective?
        ``Fly before you buy'' is an oft-heard dictum regarding the
    Pentagon's acquisition policy. It is important to be clear about what
    kind of flying the United States needs to do before buying NMD.
        When you develop a technology--any technology--and want to know if
    it is ready for production, you need to do three things:

              1. You need to build a prototype and test it on the test
            range or in the lab under controlled conditions to determine if
            the basic technology is in hand and whether it will work in a
            benign environment.
              2. Once you have demonstrated that the technology works under
            controlled conditions, you need to test it under conditions
            that approximate as closely as possible those you expect to
            find in the real world. This is necessary to assess the
            operational effectiveness of the technology in the real world,
            which will not be a benign environment,
              3. You need to do enough testing to assess the reliability of
            the technology.

        Satisfying the first of these criteria is clearly important and
    necessary, but does not demonstrate technical readiness to deploy. It
    is necessary but not sufficient; the other two criteria must be
    satisfied as well. In fact, satisfying the first condition and
    demonstrating the basic technology may tell you essentially nothing
    about whether the second criteria will be met and how well the
    technology will do in the real world.
        It should go without saying that it is especially important to test
    for operational effectiveness if the technology you are developing is a
    military technology, which an adversary will be trying to defeat. Thus,
    for an NMD system, satisfying the second criterion would in part
    require making a best guess about the types of warheads that North
    Korea, Iran and Iraq would be likely to use on their ballistic
    missiles, and then conducting tests against targets of those types.
    After all, one of the key things an NMD system is supposed to do is to
    defend the United States from long-range missiles launched by one of
    these countries.
        Since the NMD system is intended to counter ballistic missiles
    carrying weapons of mass destruction, satisfying the third condition
    and demonstrating reliability is extremely important. If the United
    States is going to--in any sense of the word--count on its NMD system,
    it has to know that the system is reliable.
        Some have argued that it is important that the United States deploy
    an NMD system as soon as possible, and that the United States should
    therefore be willing to take high risks by developing subsystems
    concurrently and using surrogate components in tests. But experience
    shows that this rarely works. In fact, by taking such risks, you are
    more likely to delay deployment than speed it up. As the Welch Report
    \1\ stated ``The virtually universal experience of the study group
    members has been that high technical risk is not likely to accelerate
    fielded capability. It is far more likely to cause program slips,
    increased costs, and even program failure.'' Similarly, in discussing
    the sense of urgency behind the THAAD program, the FY 1998 Report of
    the Director, Operational Testing & Evaluation (DOT&E) \2\ stated that
    ``The ultimate result, ironically, is a schedule slip of seven years.''
    ---------------------------------------------------------------------------
        \1\ Report of the Panel on Reducing Risk In Ballistic Missile
    Defense Flight Test Programs, 27 February 1998.
        \2\ FY98 Annual Report of the Director, Operational Test &
    Evaluation, submitted to Congress February 1999.
    ---------------------------------------------------------------------------
        No matter what development strategy is adopted, it is essential
    that the United States not cut corners on testing, because testing is
    the only way to find out if the technology is ready. The more urgent
    one believes NMD deployment is, the more one should support and insist
    on an adequate and complete test program that satisfies the three
    criteria outlined above.
                           where is the program now?
        What is the current situation? First, let's look at whether the
    United States has satisfied the first criteria.
        There have been no intercept tests of the NMD system, but since
    1982 the United States has conducted 16 intercept tests of exo-
    atmospheric hit-to-kill interceptors, which operate in a similar manner
    to the planned NMD interceptor. To date, the test record of such
    interceptors has been abysmal. Only 2 of these 16 intercept tests
    scored hits, for a 13 percent success rate. And the test record is not
    getting better with time; the most recent successful high-altitude test
    occurred in January 1991 and the last 11 such intercept tests have been
    failures.
        What can we learn from this test record? What it shows is that
    learning to do high-speed hit-to-kill commonly dubbed ``hitting a
    bullet with a bullet''--is very hard. Indeed, the Director of the
    Ballistic Missile Defense Organization, General Lyles, stated in his
    Senate testimony \3\ in January 1999 that one thing that had changed in
    the previous year was an appreciation of ``the reality of how difficult
    this job is . . . The reality of how tough it is to try to do missile
    defense and how tough it is to try to get hit-to-kill technology . .
    .''
    ---------------------------------------------------------------------------
        \3\ Lt. General Lester Lyles, testimony before the Subcommittee on
    Strategic Forces, Committee on Armed Services, United States Senate,
    February 24, 1999.
    ---------------------------------------------------------------------------
        It is clear that the technology has not satisfied even the first
    criteria listed above--demonstrating a capability against cooperative
    targets. Thus, as of today the technology does not exist to justify
    making a decision to begin deployment. Anyone asserting otherwise is
    basing their assertion on something other than the demonstrated facts.
        Indeed, a year ago, the Welch Report \4\ stated that ``After more
    than a dozen flight tests . . . we are still on `step one' in
    demonstrating and validating HTK [hit-to-kill] systems. . . . And even
    when this first step is achieved, these programs will have to go
    through steps two and three: demonstrating reliable HTK at a weapon
    system level and demonstrating reliable HTK against likely real-world
    targets.''
    ---------------------------------------------------------------------------
        \4\ Report of the Panel on Reducing Risk In Ballistic Missile
    Defense Flight Test Programs.
    ---------------------------------------------------------------------------
        Since the Welch Report appeared, two more flight tests of exo-
    atmospheric hit-to-kill interceptors have taken place,\5\ and both
    failed to hit their target. Thus, the more recent tests only strengthen
    the Welch Panel's conclusion.
    ---------------------------------------------------------------------------
        \5\ Both of these tests were of THAAD interceptors.
    ---------------------------------------------------------------------------
                     where will the program be next summer?
        What is the program status likely to be next summer, when the
    Deployment Readiness Review is scheduled? The United States is planning
    to conduct four NMD intercept tests between now and then. However, the
    date of the first intercept test has recently slipped by several
    months, and it is not clear how many of these tests will actually take
    place by June 2000.
        Even if all four of these intercept tests take place between now
    and next June, and are successful, would that satisfy the first
    criteria? It would certainly help demonstrate the principle of hit-to-
    kill under test conditions, which would be a necessary first step for
    the testing program.
        However, it would still not indicate that the technology had
    satisfied the first criteria because these tests will be performed
    using surrogate boosters and kill vehicles and not prototypes of the
    components that would actually be deployed. Prototypes of the
    interceptor technology that is intended for deployment will not be
    tested until FY2003. (The first tests of the prototype interceptor
    booster and kill vehicle are planned for FY2001 and FY2003,
    respectively.)
        Thus, the tests planned for the next year will not assess the
    performance of two of the most important components of the system. Yet,
    as General Lyles testified in February of this year, ``The ground-based
    interceptor (GBI) weapon is the least mature element of the system and
    entails the highest technological development risks.'' \6\
    ---------------------------------------------------------------------------
        \6\ Lt. General Lester Lyles, testimony before the Subcommittee on
    Strategic Forces, Committee on Armed Services, United States Senate,
    February 24, 1999.
    ---------------------------------------------------------------------------
        More importantly, the second criteria will not have been met since
    apparently none of these four planned tests will simulate real-world
    conditions. According to the FY 1998 DOT&E Report. ``The NMD T&E
    [testing and evaluation] program is building a target suite that, while
    an adequate representation of one or two reentry vehicles, may not be
    representative of threat penetration aids, booster, or post-boost
    vehicles. Test targets of the current program do not represent the
    complete `design-to' threat space and are not representative of the
    full sensor requirements spectrum.'' \7\
    ---------------------------------------------------------------------------
        \7\ FY98 Annual Report of the Director, Operational Test &
    Evaluation, submitted to Congress February 1999.
    ---------------------------------------------------------------------------
        And it is quite possible for a technology to work well in tests and
    fail in the real world. For example, recall that the Patriot system
    used in the Gulf War did phenomenally well in tests against ballistic
    missiles--it had a perfect 17 for 17 record in intercept tests prior to
    the Gulf War. Yet the Army claims only a 61% success rate for Patriot
    during the Gulf War, and independent assessments of its performance \8\
    (as well as statements by Israeli officials \9\) indicate that the
    success rate was actually much lower--and perhaps close to zero.
    ---------------------------------------------------------------------------
        \8\ George N. Lewis and Theodore A. Postol, ``Video Evidence on the
    Effectiveness of Patriot during the 1991 Gulf War.'' Science and Global
    Security, Vol. 4, pp.1-63, 1993. The Panel on Public Affairs of the
    American Physical Society appointed a panel to review the Lewis-Postol
    analysis and criticisms of it; the panel found that the Lewis-Postol
    methodology was sound and that none of the criticisms stood up to
    scrutiny. These findings are reported in Jeremiah D. Sullivan, Dan
    Fenstermacher, Daniel Fisher, Ruth Howes, O'Dean Judd, Roger Speed,
    ``Technical Debate over Patriot Performance in the Gulf War,'' Science
    and Global Security, Vol. 8, pp.1-55, 1998.
        \9\ Moshe Arens, former Israeli Minister of Defense, and General
    Dan Shomron, Chief of Staff of the Israeli Defense Force during the
    1991 Gulf War, stated in interviews conducted by Reuven Pedatzur on an
    Israeli TV documentary (21 November 1993) that the Patriot successfully
    intercepted at most one Scud over Israel. Highlights of these
    interviews are reported in Tim Weiner, New York Times, 21 November
    1993, and Newsweek, November 1993.
    ---------------------------------------------------------------------------
        One reason for the failure of the Patriot to destroy the Iraqi al
    Huseyn missiles is that the Iraqi missiles broke up on reentry,
    creating multiple targets that maneuvered as they fell to the ground.
    These proved to be very effective countermeasures, albeit inadvertent
    ones. Future missiles must be expected to incorporate intentional
    countermeasures to confuse or overwhelm the defense.
        Indeed, the U.S. NMD system will succeed or fail based on its
    ability to deal with countermeasures. So before deciding to deploy, the
    U.S. must understand whether the NMD system it is developing is likely
    to be able to work against plausible real-world threats.
        Members of the Rumsfeld Commission have stressed that ``absence of
    evidence is not evidence of absence'' for ballistic missile
    development; this advice must also be heeded relative to countermeasure
    development for those missiles. Dr. William Graham and others have
    emphasized the importance of using ``Try Intelligence'' or ``TRYINT''
    to assess potential ballistic missile threats. This would involve
    trying to build ballistic missiles using only the kind of information
    and technology assumed to be available to potential adversaries to see
    what is possible. The United States must also use TRYINT in assessing
    potential countermeasures and must test the NMD system against such
    countermeasures. While a countermeasure TRYINT program--the
    Countermeasures Hands-On Program (CHOP)--exists, the level of effort
    devoted to it is likely inadequate.\10\ Moreover, it is not clear at
    what level its results will be incorporated into intercept tests.
    ---------------------------------------------------------------------------
        \10\ According to Michael C. Sirak, `` `Chop'' shop helps create
    robust missile defenses,'' Inside Missile Defense, Vol. 5. No. 8, April
    21, 1999, pp. 1, 8-12, CHOP brings together teams of four engineers to
    work on developing countermeasures for nine to twelve months. Yet a
    country serious about developing countermeasures could work for many
    years on the problem.
    ---------------------------------------------------------------------------
        It turns out that the type of interceptor the U.S. NMD system will
    use--a hit-to-kill interceptor that is designed to intercept outside
    the atmosphere in the vacuum of space--is particularly vulnerable to
    certain kinds of simple countermeasures. I will not go into detail
    here, but countermeasures that are technically simple (such as
    lightweight balloon decoys with the warhead also enclosed in a balloon)
    can make the system fail catastrophically.
        Will these types of simple countermeasures be available to
    developing countries such as North Korea? Yes. It is logically
    inconsistent to assert that developing countries will be able to build
    or otherwise acquire the technology for intercontinental ballistic
    missiles, and at the same time will not have access to the far simpler
    technology to equip these missiles with effective countermeasures. (If
    one assumes these countries are receiving technology and/or assistance
    for ballistic missiles from more advanced missile states, such as
    Russia, one must also assume they would receive assistance on
    countermeasures.)
        Are ballistic missiles equipped with countermeasures merely a
    theoretical threat? Some people argue that developing countries may not
    bother to use countermeasures. But it is also logically inconsistent to
    assert that countries like North Korea or Iran will go to all the
    trouble to build or acquire intercontinental ballistic missiles--
    largely to be able to target the United States--and at the same time
    will not be motivated to use simple countermeasures to defeat a U.S.
    NMD system deployed to counter their ballistic missiles.
        While some see the Iraqi use of ballistic missiles in the 1991 Gulf
    War as a wake-up call to the United States about the future ballistic
    missile threat, it was also no doubt a wake-up call to other countries
    about the future deployment of U.S. missile defenses. Thus,
    countermeasures should not be thought of as an optional add-on that a
    country might or might not decide to put on its long-range missile at
    the last minute. A country that is developing or trying to acquire
    intercontinental ballistic missiles would no doubt see the parallel
    development or purchase of countermeasures as an integral part of its
    missile program.
        Thus, asserting that countries deploying intercontinental ballistic
    missiles either will not be able to or will not bother to use effective
    countermeasures amounts to wishful thinking and should not be the basis
    for military planning.
        Two sensor fly-by tests have been done that have reportedly
    distinguished decoys from a mock warhead. What does this mean? From a
    technical point of view, there is no doubt that sensors can detect
    temperature differences between objects in space, or differences in
    wobbling motions. But this capability is only useful in discriminating
    between warhead and decoys if the attacker does not manipulate the heat
    or motion signals in a way to confuse the defense. Rather than using
    decoys that look and behave differently from the warhead, the attacker
    would disguise the warhead to make it look like a decoy, or make all
    the objects dissimilar in appearance.
        The bottom line is that none of the three criteria outlined above
    will have been satisfied by next summer. At best, the first criteria
    may be partially satisfied. Thus, it is clear that by next summer the
    technology will not justify making a decision to begin deployment of an
    NMD system.
                         recommendations for the future
        What should the United States do to find out if the technology is
    ready in the longer term? In particular, what kind of a test program
    would the United States need to determine whether its NMD system is
    technically ready to deploy?

       First, the United States should not set an unrealistic time
            scale for its testing program. The testing schedule should not
            be predetermined, but should be set by the outcome of previous
            tests. There must be sufficient time between tests to
            assimilate the results of one test before conducting the next
            test.
       Second, the United States should set up a Red Team whose job
            it is to devise countermeasures using the kind of information
            and technology available to developing countries.
       Third, the NMD testing program should include flight tests
            of the interceptor against the best countermeasures potentially
            available to a threat nation, as devised by the Red Team. The
            United States should not decide to deploy an NMD system before
            it is proved effective against the Red Team countermeasures.
       Fourth, the United States should conduct enough tests to
            assess the reliability of the system. The number of tests
            required will depend both on the system reliability
            requirements and the test record.
       Finally, there should be independent oversight of the
            overall NMD testing program. In particular, there must be
            careful oversight to ensure that the Red Team is independent
            and adequately supported, and that its ideas are incorporated
            in tests.
                                   conclusion
        National Missile Defense is a highly politicized issue and there is
    great political pressure on decision-makers to do something. But the
    political response must not get too far ahead of what the technology
    can deliver.
        General Lyles stated in January 1999 \11\ about the newly revised
    NMD program, ``You will find no programs at all [in the Department of
    Defense] that have the limited amount of testing and the aggressive
    schedule that we've embarked upon here even with this revised program.
    . . .''
    ---------------------------------------------------------------------------
        \11\ Lt. Gen. Lester Lyles, Director, BMDO, DOD News Briefing,
    January 20, 1999.
    ---------------------------------------------------------------------------
        If the United States is serious about deploying a defense against
    ballistic missiles launched at its territory then it should be serious
    about finding out if the technology is ready. The only way to find out
    is by a rigorous and realistic testing program.

                                   Appendix A

        Following are excerpts from the section on NMD of the FY 1998
    Annual Report by the Director, Operational Testing and Evaluation
    (DOT&E), available at
    http://www.dote.osd.mil/reports/FY98/98JTETOC1.html#jte
                          test & evaluation assessment
        The aggressive schedule established for the NMD Deployment
    Readiness Program presents a major challenge. For instance, if a
    deployment is required by 2003, the NMD program will have to compress
    the work of 10 to 12 years into 6 years. As a result, many of the
    design and T&E activities will be done concurrcntly. Program delays
    have already caused IFT-3 to move to June 1999. This represents almost
    an 18-month slip over the last year and a half. This clearly
    demonstrates an extremely high-risk schedule and DOT&E considers the
    probability of meeting the DRR on time with the currently planned T&E
    program as highly unlikely.
        The complex operating characteristics and environments of the NMD
    T&E Program make it necessary to plan and conduct IFTs that are limited
    in scope. DRR information based on a few flight tests with immature
    elements will be limited. As a result, the T&E program will rely
    heavily on ground testing and the execution of simulations for
    assessing the maturity and performance of the NMD system concept. For
    example, the decision to downselect the EKV contract early eliminates
    the benefit of intercept flight data to support that decision. This
    warrants a rigorous ground hardware-in-the-loop simulator test program
    to assess competing seeker design. It does not appear, however, that
    the LSI will increase the scope of that grown testing in the absence of
    the flight test.
        The following risks can potentially impact the NMD T&E program's
    ability to test, analyze, and evaluate system performance:
        Limited system-level testing: Only two flight tests and one system-
    level flight test (IFT-5) are planned before the DRR. Should IFT-5
    fail, the DRR would be left with limited IFT and IGT data on which to
    basc a decision. Furthermore, the IFT-5 configuration differs from the
    Capability-1 system in that it uses prototype and surrogate sensors and
    a surrogate GBI booster stack.
        Limited engagement conditions: Flight test launches from California
    and interceptors from Kwajalein Missile Range, along with safety
    constraints, place significant limitations on achieving realistic
    geometry and closing velocities.
        GBI booster testing: The NMD T&E program makes use of a surrogate
    launch vehicle, the Payload Launch Vehicle, for all flight tests prior
    to the DRR. The objective booster contract was just awarded in July
    1998 and first delivery will not occur until after the FY00 DRR. Lack
    of IFT data without the objective GBI capability (e.g., larger burnout
    velocity than the Payload Launch Vehicle) before the DRR will limit the
    GBI evaluation.
        Limitations of ground testing: The Integrated System Test
    Capability will be the major source of data generated from ground
    testing. However, test articles used to represent NMD elements in the
    testbed may not be verified or validated in time for the DRR. In
    addition, early tests like IGT-1A were very rudimentary and only tested
    the message exchange between the BMC3 and prototype X-Band Radar; a
    simulated interceptor was not even launched. Substantial upgrades must
    be performed on the Integrated System Test Capability before overall
    system performance can be thoroughly assessed.
        Target suite: The NMD T&E program is building a target suite that,
    while an adequate representation of one or two reentry vehicles, may
    not be representative of threat penetration aids, booster, or post-
    boost vehicles. Test targets of the current program do not represent
    the complete ``design-to'' threat space and are not representative of
    the full sensor requirements spectrum (e.g., discrimination
    requirements). Much of this limitation is attributable to the lack of
    information about the real threat. Multiple target testing; NMD system
    performance against multiple targets is not currently planned for
    demonstration in the flight test program. Validated simulations will be
    used to evaluate multiple simultaneous target engagement.
        BMC3 interoperability testing: The BMC3 to Commander-In-Chief
    interface inside Cheyenne Mountain will not be tested prior to the DRR.
    Spare test articles: The current TEMP identifies a lack of spare test
    articles due to a resource allocation trade-off. This may have a
    significant impact on schedule and data availability for the FY00 DRR,
    and ultimately an FY03 deployment if there are any flight test
    failures.
        Limitations of ground lethality testing: There is no ground test
    facility capable of propelling EKVs or their full-scale replicas
    against targets at the closing velocities expected for NMD intercepts.
    These closing velocities will exceed 7 kilometers per second. Existing
    full-scale facilities cannot yet achieve 3 kilometers per second. The
    lethality test data to support DRR will be collected from light-gas-gun
    tests of reduced-scale replicas of EKV surrogates and targets at the
    lower-end (six kilometers per second or less) of the intercept velocity
    spectrum.
        Programmatic changes: The advent of the LSI contractor has resulted
    in the repeat of extensive planning and analysis already performed by
    the JPO. The System Evaluation Plan is being replaced by a LSI
    generated System Verification Plan; and there does not appear to be a
    strong desire on the part of the JPO to have any independent
    developmental evaluation. The High Fidelity System Simulation, which
    was to be the fast running, system performance, digital simulation for
    assessing many scenarios throughout the threat space, has been largely
    abandoned in favor of developing Boeing's LSI Integrated Distributed
    Simulation.
                                lessons learned
        The NMD system shares an important functional attribute with
    theater missile defense systems like THAAD, Navy Theater Wide, and PAC-
    3--all are hit-to-kill systems. Recent THAAD flight test failures have
    provided us with the following important lessons: (1) hit-to-kill
    technology is extremely difficult; (2) pre-flight checkouts of
    reliability and performance need to be emphasized; and (3) strict
    quality control activities need to be implemented in the manufacturing
    of the GBI. In addition, the failure of IFT-1 underscored the need for
    a more robust program for targets and system spares, which will support
    the development of ballistic missile defense systems. This failure and
    its resultant impact on the test program highlights the very high level
    of schedule risk associated with the NMD program.
        All of the above points were reemphasized in the findings of the
    Institute for Defense Analyses study, chaired by Retired General Larry
    Welch, on Reducing Risk in Ballistic Missile Defense Flight Test
    Programs. This study was co-sponsored by DOT&E, the Director, Systems,
    Engineering and Evaluation, and the Director, Ballistic Missile Defense
    Organization.

        The Chairman. Thank you very much. As I indicated earlier,
    Senator Biden was unavoidably detained because of his interest
    in a vote that occurred on the Senate floor, which was delayed
    itself by 30 or 35 minutes, causing everybody to be behind
    time.
        I want Joe to do his opening statement in just a moment,
    and I would also like, if he pleases, Senator Lugar to have his
    statement, but before I turn to Senator Biden, I think we
    should address the matter of countermeasures. Some have begun
    putting forward an argument that any NMD built can be defeated
    easily by countermeasures. Of course, countermeasures are not a
    reality simply because somebody draws a picture of one.
        I would be willing to wager that a good many scientists
    could draw equally compelling pictures of things to counter the
    countermeasures, but we need not, I think, get into an art
    contest at this hearing, and I hope we will confine our
    discussion to the realm of the possible, and not allow flights
    of fancy either to lead us to predict that missile defenses can
    do nothing to protect our country, or that they may be perfect
    in affording such protection.
        Having said that, I invite Senator Biden to make his
    opening statement.
        Senator Biden. Mr. Chairman, I would like to ask that my
    entire statement be placed in the record, if I may.
        The Chairman. Certainly. Without objection.
        Senator Biden. Let me just state at the outset that testing
    aside, and I speak to this in my opening statement, I am
    concerned that our currently envisioned system may be the wrong
    tool for the job. I am skeptical that our national missile
    defense currently under development is the best means of
    defense against the threat of missile attack. I know you do not
    want to talk about them, but missile defense systems have to be
    able to defeat countermeasures.
        I do not know enough to know whether or not the
    countermeasures envisioned by Dr. Garwin are art projects or
    realistically within the grasp and reach of the Koreans, or the
    Iraqis, or anyone else we are immediately concerned about. I
    just do now know, and I am going to ask about that at some
    point, and ask Dr. Graham, who is a very knowledgeable fellow,
    whether they are within their grasp and whether it is something
    we should be concerned about.
        But the missile defense system, it seems to me, needs to be
    able to defend against the most likely ICBM payloads, including
    chemical or biological bomblets. Now, I assume that that was
    within the competence of the very nations that we are most
    concerned about, I assume that was part of the threat, but I
    may be mistaken, so I would like to talk about that as well,
    and whether or not the proposed system that we are talking
    about, and Dr. Wright was critiquing, is ineffective or
    effective against such attacks.
        The most likely missile attacks against the United States
    territory, at least I have been schooled to believe over the
    last couple of years, are from cruise missiles or short-range
    ship-borne missiles, and yet the proposed system, I am under
    the impression, cannot even begin to deal with those.
        I, by the way, truly appreciate all four of you being here.
    You are an incredibly competent panel, with differing views,
    which is the most helpful to us, quite frankly, at least to me.
    Mr. Chairman, I will cease my statement at this time, but one
    of the things I would like to do when it comes my time to
    question is ask each of them to respond to the other's
    comments, because I, at least, am more likely to learn a little
    more that way than with my prepared questions.
        But let me close by saying that the thing that I have yet
    to fully understand, and maybe we can flush out in this
    question and answer period, is what each of you believe to be
    the threat, not generically, but specifically, what do you
    believe the threat is that warrants or would warrant our
    building a missile defense system. It seems to rest upon the
    notion that there is some madman in Iraq or a madman in Korea
    who, not withstanding the fact that he knows his country will
    be obliterated, will nonetheless feel he has the capacity to
    threaten us by saying, ``I will strike Hawaii unless you do the
    following.''
        Now, I assume that is the premise upon which most of this
    is based, because if we assume people are rational, as Russian
    dictatorial bad guy leaders were for 50 years, the threat of
    use of nuclear weapons against us, which was fully within their
    capacity, was always viewed as not likely. That was because of
    deterrence: they knew that we would be able to visit an equally
    monstrous reign of firepower upon them in response to that
    which they could us.
        My core question is: Does this current threat assume,
    General Piotrowski and others, that there is an irrational
    leader in the countries we are concerned about, or is it
    premised upon the notion that there is a rational leader who
    cares about whether or not his country is obliterated. Have we
    changed the equation?
        I thank you, Mr. Chairman, for allowing me to speak.
        [The prepared statement of Senator Biden follows:]

               Prepared Statement of Senator Joseph R. Biden, Jr.

        Thank you, Mr. Chairman. Thank you also for giving me the lead-time
    to invite two of our five witnesses today--Drs. Richard Garwin and
    David Wright. I look forward to hearing from all of today's witnesses,
    of course. I am very interested in their views regarding our
    technological progress toward the goal of a national missile defense,
    as well as their thoughts on what technical challenges remain to be
    overcome.
        The status of our ABM capabilities will be a crucial factor in our
    decision whether to deploy a national missile defense by the year 2005.
    To put this hearing into context, the administration has repeatedly
    said they will base their deployment decision on four criteria:

              (1) whether a threat exists to the United States;
              (2) the cost-effectiveness of missile defenses;
              (3) whether the necessary technology exists to build a
            defensive system; and
              (4) whether the benefits of deploying that system outweigh
            any possible negative effects it might have on U.S.-Russian
            relations.

        On the first point, the administration granted that a missile
    threat exists during the lead-up to the March vote on the Cochran bill.
    By including missile defense procurement money in the Future Years
    Defense Plan, the administration also seems to have decided that the
    proposed, very limited, National Missile Defense system will be worth
    the money if it works.
        But the jury is still out when it comes to the administration's
    final two criteria, both of which were supported by the Senate in the
    amended Cochran bill. It will not surprise my colleagues to hear that I
    strongly doubt that those criteria can be met in the near term.
        On the topic of today's hearing, let me be blunt. Nothing I have
    heard so far has convinced me that we are ready to field an effective
    missile defense by 2005, which is the administration's earliest target
    date for deployment.
        I am concerned, moreover, that we may deploy a national missile
    defense for political reasons, without adequate testing. The 1998 Welch
    Report--the product of an independent commission charged by the Defense
    Department with assessing the missile defense testing program--warned
    that:

              To succeed, the national missile defense program must meet a
            series of formidable challenges. [It] should be restructured
            now to provide for adequate, sequential development and
            testing.

    Without a rigorous development and testing program, the Welch panel
    warned of a ``rush to failure.''
        Events since then are not reassuring. The first intercept test of
    the national system has been delayed until August because of fuel leaks
    in the kill vehicle. Because of that delay, the administration may be
    forced to decide on deployment after only three intercept attempts.
    That is far too few tests on which to base such a major decision, at
    least in my view.
        Testing issues aside, I am concerned that our currently envisioned
    system may be the wrong tool for the job. I remain skeptical that
    national missile defenses currently under development are the best
    means to decrease the threat of missile attack.
        A missile defense system must be able to defeat countermeasures.
    But the proposed system may be vulnerable to very simple
    countermeasures.
        A missile defense system needs to defend against the most likely
    rogue-state ICBM payload--namely, chemical or biological bomblets. But
    the proposed system may be ineffective against such attacks.
        The most likely missile attack against United States territory may
    be from cruise missiles or short-range, ship-borne missiles, yet the
    proposed system cannot even begin to defend against those attacks.
        I wonder, therefore, whether early deployment of a national missile
    defense system is a wise response to the emerging missile threat to the
    United States.
        I wonder whether we should not consider alternative means of
    decreasing the missile threat, rather than spending billions of dollars
    to deploy a ballistic missile defense that will only provide modest
    benefits and may well fail the technology test--as well as the test of
    maintaining U.S.-Russian strategic security, which we will discuss in
    tomorrow's hearing.
        Again Mr. Chairman, I look forward to hearing the views of the
    witnesses on these important technical issues. Today's hearing should
    provide us a much clearer picture regarding some of the implications of
    deploying missile defenses.

        The Chairman. Senator Shelby was very good, I wish you
    could have heard his statement----
        Senator Biden. I do apologize.
        The Chairman. Maybe you should read it, because he
    responded to some of the very things that you had mentioned.
        Senator Lugar, the distinguished Senator from Indiana, is
    the former chairman of this committee, and a great Senator, a
    great American, and I would like for him to make a statement,
    if you wish.
        Senator Lugar. Thank you very much, Mr. Chairman. I will
    not ask a question, but I will in due course try to flush out
    the threat. Senator Biden has talked about this a little bit.
        From time to time we have been discussing the so-called
    rogue nations, single shots, or fledgling programs of countries
    that might gain some strategic advantage by having these
    weapons, and General Piotrowski addressed this in a way.
        I was curious as to the perception of the threat and what
    program is being developed to counter it. Is the threat
    strictly rogue nations or is it a more sizable threat? And with
    that in mind, what effect is the ABM Treaty having on any of
    the developments that you gentlemen are describing? To what
    extent is it a hindrance?
        Clearly, if, in fact, one of our objectives was to counter
    the ICBM's of Russia, Russians would legitimately say that our
    missile defense system came into force simply to try to take
    away these potential threats and to change the strategic
    posture. so I am eager to hear much more about the ABM Treaty
    as a hindrance, whether it should be modified, appealed or does
    it not make any difference, and is part of the difference,
    perception of the threat to begin with, who we are after with
    this program.
        The Chairman. Now we will begin the questions; I suggest
    that we take about 6 or 7 minutes each. I am no Henny Penny
    talking about the sky dropping myself, and neither is or has
    been the Rumsfeld Commission, which consists of some pretty
    great Americans who do not imagine things falling from the
    skies. They are pretty realistic, and they have served this
    country well in various connections.
        Dr. Graham and Dr. Garwin, you were both members, I
    believe, of the Rumsfeld Commission, or still are, and you both
    agreed with the judgment that North Korea and Iran, and I
    quote, ``Would be able to inflict major destruction on the
    United States within about 5 years of a decision to acquire
    such a capability,'' is that correct? Just 2 months after your
    report, North Korea launched a Taepo Dong-I missile. The United
    States intelligence community has warned that this missile
    could be used, ``To deliver small payloads to ICBM ranges.''
        Now, my question is: Do you agree that this demonstrates an
    intent or even a possible intent by North Korea to acquire a
    missile capability to threaten the United States? Dr. Graham,
    you first, and then Dr. Garwin.
        Dr. Graham. Thank you, Mr. Chairman. Let me respond to
    that, and also to Senator Biden's question about the
    rationality of the leadership. I think there is an argument
    that can be made over the irrationality of the North Korean
    leadership, and what we are really dealing with there is a
    hostage population with a despotic government, but even on an
    irrational basis, they realize, the North Koreans realize that
    the greatest threat to their regional aspirations is the
    presence of the United States in South Korea, and Japan, and
    elsewhere in Asia, and our ability to move into those areas
    rapidly.
        They also realize that we put great weight on our ability
    to build alliances and work cooperatively with other countries
    in a given region, such as Asia, and a rational use for
    ballistic missile and other military capability, but
    particularly long-range ballistic missile forces that can
    strike Japan, South Korea, and the United States, is to
    dissuade the U.S. from taking an active role militarily in
    conflicts in the region, and particularly in thwarting our
    ability to build alliances in the region.
        I happened to live in Japan in 1948 through 1950, and was
    there during the start of the Korean War, and I remember
    hearing threats by the North Koreans that they were going to
    bomb Japan, because we were basing our military operations out
    of Japan at the time. They were not able to do it then. There
    is absolutely no question that they can do it with ballistic
    missiles, and I am sure that would give the Japanese and other
    allies great pause in thinking of letting the United States use
    those areas and in joining in alliances with the United States
    should the North Koreans try military action on their
    peninsula.
        I think the threat in the nearest term form and easiest one
    to deploy is the one that the Rumsfeld Commission and Dr.
    Garwin described, which is ship-based ballistic missiles that
    could be shot from off our shores into our population and
    industrial centers, Scud missiles work just fine for that, and
    we have no defense against those today, and no defense against
    them planned under the ABM system.
        The ABM system that we are seeing being developed today is
    a very stylized system designed to conform to the very limiting
    constraints of the ABM Treaty, and among other things, that
    treaty prohibits sea-based defenses, it prohibits air-based
    defenses, base-based defenses, it prevents multiple defensive
    sites on the land, and, therefore, we are treaty constrained
    not to protect ourselves through the shorter range threats that
    Dr. Garwin was describing, and also can arguably be said to
    protect us or to prohibit us from deploying launch-phased,
    boost-phased defenses, which are very effective against
    virtually all countermeasures, and in particular, the early
    release submunitions that he described.
        So our ABM system design that the United States is
    currently pursuing is, in my view, a step in the right
    direction, but one with substantial deficiencies that need to
    be filled out before we have a comprehensive missile defense
    capability, and the limitations on it are primarily driven by
    the ABM Treaty today.
        The Chairman. Thank you very much. I want the timekeeper to
    be sure that Dr. Garwin gets equal time.
        Dr. Garwin. Certainly, the Taepo Dong-I launch of August
    31, 1998 shows progress and intent on the part of the North
    Koreans. When the United States expressed its displeasure,
    North Korea responded that they need the money, and they do
    sell their ballistic missiles.
        They are a big proliferator, they are not a member of any
    regime that keeps them from doing it, they make money out of
    it, and they are very short of money.
        Now, we do not have a lot of money, but we have a lot more
    than the North Koreans, and I think that we ought to see what
    kind of international or bilateral agreement could be
    formulated that would prevent the development in North Korea of
    longer-range ballistic missiles, and might even tone down or
    eliminate the development of shorter-range missiles.
        But the ABM Treaty does not stand in the way of defending
    coastal cities against short-range ballistic or cruise
    missiles. That would be done locally. It would be done with
    within-the-atmosphere interceptors. Patriot might do that quite
    well.
        What stands in the way is the demand that we protect every
    square inch of the 50 United States, and that is a big problem,
    because they could always find a place that was undefended and
    attack it, although that would not make sense from their point
    of view, and would not cause much damage, from our point of
    view.
        So I think that if we look at the threats that exist, the
    threats that are easiest to pose, we ought to start working on
    the cruise missiles against coastal cities, including Hawaii,
    and the short-range ballistic missiles.
        The national missile defense is going to stand in the way
    of doing the right thing, because it takes so much of our
    attention and of our effort, and it will invariably evoke
    arguments that ``we are spending so much money on it, it must
    be effective.'' Economists always say that everything has its
    price, and its price determines its value. Apologies to
    economists who may be watching.
        The Chairman. Very well. I think we ought to try to finish,
    at least on my time, and I will not take a next round, would
    you like to respond to the gentleman, Dr. Graham?
        Senator Biden. Mr. Chairman, if I may, I would like you to
    take more liberty. There are only three of us here, and I think
    if you can get an interchange going----
        The Chairman. That is exactly what I want to do.
        Senator Biden [continuing]. I do not think you should be
    constrained by the time, with all due respect.
        The Chairman. Well, I think that is a good idea. General,
    proceed.
        General Piotrowski. Well, I would like to make a few
    comments. First, Mr. Chairman, let me say what I do agree with.
    I do agree that countermeasures can evolve. I do agree that
    testing is important, and certainly that should be foremost in
    the development of this program, adequate testing to ensure an
    understanding of the reliability, but let me comment to some
    other points that were made.
        Senator, you asked about rational versus irrational.
        Senator Biden. I am serious about it. I am not trying to be
    argumentative.
        General Piotrowski. No, no, I want to respond to that in a
    serious fashion. I never believed that the Soviets would act
    irrationally during the time that I was CINCSPACE, CINCNORAD,
    and had to worry about an attack on North America and my advice
    to the President. I do not believe that that situation exists
    any more, and I have perhaps a different understanding of
    irrational versus rational behavior.
        We tend to analyze behavior based on our Western moors and
    our Western values. I have come to historically look at what
    was perceived to be irrational behavior historically in war,
    and when you look at it from the part of the actor who was
    believed to be irrational, you can find that they chose to die
    rather than live under the conditions that were forced upon
    them.
        A very good historical exam, sir, are our Forefathers, who
    chose to take on the British empire when we barely had a toe-
    hold or maybe a finger-hold on this continent and declared war
    on the British empire. I am sure that most civilized nations in
    Europe felt that that was totally irrational, but it was our
    Forefathers' choice.
        Do systems evolve? Yes, they do. I do not recall in my 38
    years of historical military activity that we ever feel that a
    system that was capable of defeating or even taking on an equal
    footing, threats that could be imagined. The F-15, for example,
    when it was fielded, it is not the aircraft that exists today,
    which is far more capable.
        The F-16, when it was fielded, did not have a night
    capability, did not have a good precision bonding capability.
    That has evolved over time. None of our systems had adequate
    electronics countermeasures to take on the threats that would
    evolve, the SA-4 or the SA-6, and on, and on, and on.
        Our systems have evolved to meet the threats that have
    evolved. I believe that there is a threat today. I believe that
    whether there is intent or not, that can change in an instant.
    It can change with a leader. It can change with an event. We
    have always dealt in military capability against other military
    system capabilities, not so much with their intent, but their
    capability.
        Senator Biden. Well, General, if I could interrupt just a
    second, I can recall that years ago there was a national forum
    put together, a series of debates with Admiral Zumwalt, Paul
    Warnke, Dr. Teller, and myself, and they set up these debates
    around the country, and 3,000 or 4,000 people showed up for
    these discussions, and it was about arms control, generically
    and specifically the SALT treaties.
        One of the things that always fascinated me--and I knew he
    said it with every ounce of earnestness, he believed it--was
    that Dr. Teller, whom I certainly could not match in terms of
    knowledge of any of the systems that we were talking about,
    used to say the reason why we have to assume that the threat of
    a counterattack by the United States and the devastation it
    would bring upon the Soviet Union was not credible--he argued
    it was not credible that deterrence was working--was that the
    Soviets had demonstrated they were prepared to lose 20 million
    people during World War II and, therefore, they were ready to
    do it again. Yet, 50 years of history demonstrated that the
    Soviet leadership, although they imprisoned the people, were
    fairly conservative in how they acted.
        I am not trying to be argumentative. I truly find myself at
    a loss when I hear Dr. Graham's arguments that the Japanese
    would not likely form an alliance with us, knowing that they
    could be more likely to be struck if they were cooperating with
    us. Everything in history demonstrates the exact opposite: that
    the Japanese, or the Koreans, knowing that they are vulnerable
    with or without us now, as a consequence, would find it very
    much in their interest to have an alliance with us.
        It seems that the assertions, although theoretically
    rational, fly in the face of historical analysis and human
    behavior. Our Founding Fathers were not worried that all
    Americans, their sons and daughters, would be obliterated if,
    in fact, they declared war. What they were most concerned
    about, from historical analysis, as you know, General, is that
    they, those who signed the Declaration of Independence, would,
    in fact, be hung on the gallows, since over 50 percent of the
    people who lived here then did not share their view.
        The idea of mutually-assured destruction is something that
    I understand is now sort of out of vogue.The premise upon which
    some of this current concern is based, at least, is that there
    will be a North Korean leader who would threaten to hit Hawaii
    unless all American troops leave South Korea, for example, he
    threatens Hawaii unless we agree to send food aid, or threatens
    Hawaii unless we do the things he wants us to do, even though
    he would possibly put his entire country, himself, and all his
    people--whom he does not care about, theoretically, or at least
    apparently--in jeopardy of being literally obliterated.
        I have trouble with that equation. But I am speaking more
    about what I think than listening to what you have to say. I
    just do not see how they equate, our Founding Fathers and the
    obliteration of an entire nation.
        The idea is that somebody is going to come along and say,
    ``Hawaii goes unless you give us the following,'' or some
    variation of that, or that Japan will say, ``Look, United
    States, they now have this missile capacity, they can strike
    every city in Japan now. We want you out of here, because we
    are going to capitulate. We want to cut a deal right now with
    North Korea.''
        It seems to me to fly in the face of modern Eastern history
    as well as European history, of all history. I have seen
    nothing to indicate that people would react that way, whether
    it was in 1897, in 1917 or in 1948, I do not see anything that
    suggests otherwise, and I am searching for it, because I truly
    believe if we could put a shield up that protects against the
    threat that we are now talking about, I would be all for it,
    but I do not see how we get from here to there.
        I am talking too much. I yield to the Chairman. I would
    like your response.
        Dr. Graham. Well, you raised a question on the motives of
    the leader of North Korea, and I do not claim to be an expert
    on that, I am not sure if anybody understands him, but one
    thing we have taught him to this point is, at least, that even
    with the poorest, most isolated country in the world, if he
    just goes to the trouble of attempting to develop a small
    number of nuclear weapons, we will engage him as a serious
    power, provide him with large quantities of fuel oil, provide
    him with a promise to build two very large nuclear reactors in
    his country, which he has got the infrastructure to use, and
    provide all the funding for that in the course of that process.
        So it is clear that the North Korean militant acts in
    ballistic missiles, in warheads for ballistic missiles, and
    other military areas, are benefiting North Korea today.
        Senator Biden. I think that is true, Doctor, but how does
    that translate into the assumption that he would use them? I
    think part of the reason we do that is because guys like you
    come along and tell us we may lose San Francisco if we do not
    either build a system or stop him.
        Dr. Graham. Absolutely. I would certainly not try to sit up
    here and show you that the leader of North Korea would not use
    nuclear weapons on ballistic missiles if he had those for any
    of a range of purposes.
        More importantly, though, the threat of those and having
    that capability is enough to get him a lot in the world,
    nuclear reactors, food, heat, oil today, and undoubtedly other
    things in the future, and that in some ways is even more
    valuable to him than the prospect of losing much of his country
    to an all-out war. So it is not an irrational act on his part
    to build those. It is an irrational act on our part not to
    build defenses against them.
        Dr. Garwin. Well, much of the support for the nuclear
    reactors in North Korea I think stems from the vulnerability of
    South Korea to North Korea, and the desire to hold the
    peninsula together while North Korea evolves into a more
    conventional country. Whether that will work or not, I do not
    know. I hope it does.
        There is a big difference between using nuclear weapons in
    retaliation, in case you are destroyed as a country; that is
    not desirable, but it is rationale. The United States and the
    Soviet Union, when we had no defense against one another,
    practiced that intensively for 50 years. There is a big
    difference in between that and the first use of nuclear weapons
    when you have only one or two, because the first use is surely
    going to be the last use. Once you have done that, the game is
    up.
        First of all, it may not work. We have lost three modern
    Air Force boosters in the last months, something that we
    thought we knew how to do. Who believes that a North Korean
    ICBM is going to work perfectly every time they light the
    torch; and if they try to send it and it does not work, they
    will lose the rest of their weapons as well; and if it does
    work, they will lose the rest, even if that one comes over and
    explodes, and we lose 100,000 people, or whatever the number,
    depending on the accuracy.
        So even if a country has nuclear weapons, even if it is not
    the most rational in the world, it can still be deterred with
    high probability. But my problem with the subject of this
    hearing on the national missile defense is that it does not
    really address this problem.
        I understand General Piotrowski's statement about
    countermeasures, and I have been in this business for a very
    long time, but this is a countermeasure that is really easy.
    The bomblets would be done independent, in my opinion, of the
    presence of a defense.
        They are to increase military effectiveness, and the
    question of the enclosing balloon, well, at a later hearing I
    think we could bring one in and seam it up on the floor, and
    shrink it down on a mock reentry vehicle, and see whether it
    works.
        Now, the one difference is that here we have an atmosphere,
    every cubic yard of air weighs 2 pounds, and so we would have
    to bring in enormous tanks to fill a balloon the size of this
    room, but in space there is not any atmosphere, and it takes
    only a few grams of gas. So that is why these things are so
    much easier to do.
        Our enclosing balloons that we have developed, but not
    necessarily deployed, are not the simple ones that I proposed.
    For various reasons, they are more complicated, but in this
    case, the simple one would really work, and I think I could ask
    General Piotrowski and Dr. Graham about that.
        General Piotrowski. There is no argument that
    countermeasures can be developed. I, again, like to use
    historical examples. When the AWAC's was fielded I played a
    large role in fielding at the E3A, back in 1976. Many
    scientists of notable reputation at that time argued that it
    was foolish to deploy the system, because radars are easily
    jammed, and it would be jammed and useless.
        Well, we have been through a number of wars since then, the
    AWAC's are still flying, it is 23 years later, and it has never
    been effectively jammed, even though we could go to Radio Shack
    and buy a few components and show how easily it is jammed. It
    has not been done.
        The question is, should we field a defense against what
    exists today and be able to evolve it over what will exist
    tomorrow? My background tells me yes, and that it would be
    difficult to explain to the American people, I am sorry we lost
    Los Angeles, but we were waiting to develop against
    countermeasures that we can envision in the future.
        I think that is unacceptable, based on my background. I
    have never known a weapons system that was fielded that was
    able to counter the threats that could be perceived that would
    exist in the next couple of years, and I do not see it
    happening.
        Senator Lugar [presiding]. Do you have any comment?
        Dr. Graham. Yes. Thank you, Senator Lugar.
        Countermeasures are serious issues that should be
    considered in the design of any ballistic missile defense
    system, there is no question about that. Most, if not all, of
    the countermeasures that are discussed today, in fact, have
    been on the books for decades, and are reasonably well
    understood.
        In fact, the Ballistic Missile Defense Organization
    supports a small group called the Countermeasures Hands-on
    Project, which is a third-world-like operation populated by
    intelligent but relatively inexperienced young officers and
    enlisted men, in which they try to develop these
    countermeasures and test them to see how hard it is to make
    them and what can be said about them.
        This is something that we discussed in the Rumsfeld
    Commission that I call ``Try Int,'' that is, if you want to
    know you can do something or how your enemy might do something,
    try it under the circumstances that he would do it under and
    see how it works. In fact, even the balloon that Dr. Garwin
    described was one of the ideas that the Countermeasures Hands-
    on Project has tried.
        In detail, of course, it is not as easy as it sounds, both
    from the mechanization, but even more from the dynamics of the
    balloon. While you might have a balloon shell encompassing a
    heavier object like a reentry vehicle, you cannot change the
    mass distribution substantially, and our radars are now able to
    get very precise data on the dynamics of objects that they see.
        So even if they cannot see inside the balloon, they can get
    information on where the center of mass is, which is, in fact,
    going to be the heavy warhead. So you go down into the
    subtleties of this action, reaction, and that will continue
    forever.
        Our uniform experience in this is that countermeasures have
    proven harder to make work well in our own efforts to build
    them, both in the Countermeasures Hands-on Project, but more
    generally with our ballistic missle force, than we anticipated,
    and discrimination has proved to be less difficult than we had
    anticipated.
        Remember, what you are doing as a developing-world country
    is you are betting your ability to deceive U.S. ballistic
    missile defense systems in the radar bands, in the optical
    bands, infrared, possibly ultraviolet, eventually from our
    space platforms as well as our ground-based radars, against
    their ability to fool these. We have so much more experience in
    these areas and so much more technical capability in these
    areas that that is an extremely risky bet for them, and one
    which today I would bet on the side of the U.S. winning, and
    that has certainly been our experience in recent ballistic
    missile defense tests.
        Senator Lugar. Well, thank you very much. It has been very
    helpful in flushing out the countermeasure issue. Let me try a
    broader question, and I would like each of you to comment. This
    may stretch analogies too far, but so be it. We have been
    having a debate last evening and this morning about Kosovo.
        Essentially, in the conference with Senator Biden, Senator
    Helms, and I participated with the President, he has stated
    objectives for our country, and that is very important. This
    would also be true of what we are talking about today, that we
    try to define what it is we are attempting to do, and you
    gentlemen have been helpful in that respect.
        But nevertheless, in trying to meet the objectives, the
    President has indicated that that planning for the use of
    ground forces is not to be done, quite apart from deployment of
    ground forces; that bombing missions will be conducted at
    15,000 feet or higher to meet the problems of anti-aircraft
    that cannot be suppressed sufficiently; only on clear days will
    bombs be dropped where there is visual sight of the situation,
    which rules out a good number of missions; the Kosovo
    Liberation Army, or other such elements, would not be armed for
    a variety of reasons; the independence of Kosovo is not our
    objective but an autonomous province of Serbia, a country that
    is certainly at war with people that are living in the country
    now.
        So there are a number of constraints. Now, they all have
    some rationale in terms of our foreign policy, our alliances,
    our relationships with other countries, and the amount of money
    we want to spend on the war, plus the casualties we want to
    sustain, but they do lead one, at least, Senator Biden and I,
    in our votes today, to wonder whether you can get there from
    where we are.
        In other words, would it now be a better idea to say to the
    President, ``Mr. President, you are authorized to do what you
    need to do, in order to be successful in this situation.''
        Now, I have a feeling in this conversation about missile
    defense, we have a similar predicament, in which we have had
    constraints of money, the national will has never been exactly
    clear, although it is being clarified by votes as they come
    along, and maybe we have not quite defined the objectives
    altogether. There are rogue states, and the possibility of
    ICBM's that are still out there from Russia, and we have the
    ABM Treaty, which has very considerable constraints.
        Now, I just ask you, to what extent our program, whether we
    are in the national missile defense or in subsidiary programs
    dealing with countermeasures or developing, as Senator Biden
    suggested, defenses against cruise missiles from the coast
    quite apart from ICBM's, to what extent does the ABM situation
    constrain what we need to do, or is it the other problem that I
    sensed from General Piotrowski's testimony, that there often is
    the case that if there is a national will to do something that
    it is more likely to get done.
        I think counter-testimony, maybe Dr. Wright, or maybe Dr.
    Garwin saying, fair enough, but even if you want to do it very
    badly, if technically you keep missing the bullets, and do not
    do the proper testing, do not do enough of it, you cannot get
    it done anyway, that there is sort of an American can-do spirit
    that says ``That is just not so, we are Americans.''
        If we want to do this sort of thing, take off the
    constraints, spend the money, get the objectives broad enough
    so that we sort of encompass all the threat, why we are going
    to get it done. That is what I would like to believe.
        On the other hand it appears that our policy now is
    constrained in many ways by the ABM Treaty and our relationship
    with Russia, and second, by the money problem. And probably
    third, by a lack of confidence that has come maybe from lots of
    test failures, that somehow this is not working out very well,
    that the technical genius in this country, great as it may be,
    is not all quite here to do that kind of thing, and, therefore,
    it is convenient, in a way, to sort of approach this
    incrementally.
        So I hope we can make a little headway on it with the
    thought that maybe you will stumble into it, and given the
    timeframe of history, maybe no one will really develop much
    more in that process anyway, that we have that kind of time.
        I just want to get some feel from you, if you were
    President of the United States and know what you know about
    this threat, the timeframe, the problems we have in terms of
    money, whether we have the technical skills, what should we be
    doing, and should we be constrained by the ABM Treaty?
        Is the Russian relationship that important in this, and if
    it is, does this really mean that we are always going to be
    working around the edges of a problem, trying to stay in
    conformity, as we try to edge up to the rogue nation problem
    and state that as our objective? Do you have any overall
    comment about this sort of series of questions and thoughts?
    Dr. Graham, can you give an answer to that?
        Dr. Graham. Yes, Senator Lugar. I think there is no
    question that we have the technical and industrial capability
    to develop a much more substantial ballistic missile defense,
    in some ways along the lines that Dr. Garwin has suggested, for
    example.
        Senator Lugar. By more substantial, do you mean not only
    the national missile defense, but also you picked up some of
    these variations----
        Dr. Graham. Yes.
        Senator Lugar [continuing]. The small nation's response,
    the whole comprehensive bit?
        Dr. Graham. Yes. You would include a greater emphasis on
    countermeasure defense. Even there is some in the program
    today, it could certainly be strengthened. It would include
    defense against shorter range missiles, targeted at U.S.
    territories, for example, Aegis-ship based defenses against
    shorter and mid-range ballistic missiles, and without the ABM
    Treaty we would certainly deploy more than one site against
    long-range ballistic missile threats, and we would also, I
    believe, should make a substantial attempt to add to the Aegis
    and possibly other locations, such as the heart of Russia, very
    close to North Korea, if the Russians will cooperate, the boost
    phase defense, which is an extremely effective technique
    against countermeasures, as Dr. Garwin described.
        Senator Lugar. Would you pick up also whatever obligation
    we have with Japan, in terms of missile defense of that
    country?
        Dr. Graham. Yes, indeed. In fact, we are cooperating with
    Japan. They have bought, I believe, Patriots already, are
    considering the Aegis-based systems, and could acquire THAAD,
    as could other countries in that region. But if the President
    is going to make a sound decision on this, it seems to me to be
    useful for him to go back to history and look at the great
    successes we have had in major technical developments.
        For example, the Minuteman system was technically more
    challenging in many ways than this. We decided to build an
    unattended intercontinental ballistic missile. That was
    unprecedented.
        It would have solid propellant from missiles at all stages,
    so it would be ready at very short notice; hence, its name
    Minuteman. That was new. It would be based in holes in the
    ground, silos, which is the most difficult sort of structure to
    fire a ballistic missile from, because you cup the missile as
    it comes out of the silo with the heat of the first stage
    engine, and it would have nuclear weapons on it, so it would be
    an unattended nuclear weapons system.
        All of those were new characteristics, and yet, General
    Shriever had a clear mandate that went from him to the
    Secretary of the Air Force, to the Secretary of Defense, to the
    President, that said, do it, take what national resources you
    need to build a viable system, and build it as rapidly as you
    can, and in a little over 4 years, he went from start to a
    full-scale engineering development, to the initial operating
    capability, which was, I believe, ten or twenty missiles
    deployed in their silos. He built all the infrastructure for
    that, the bases, the training facilities, the logistics, and so
    on, and had the whole system deployed in very few years.
        That, I think, is a good example for a national missile
    defense system, but if he had constraints such as those that
    the ABM Treaty imposed on national missile defense, I believe
    there is no way that he could have developed that system at
    all, much less in the timeframe that he did.
        I liked Dr. Garwin's interpretation of the ABM Treaty much
    better than the interpretation I have seen by the State
    Department, the compliance review group, and everybody else,
    but unfortunately, they are the government and he is not.
        There would be very strong arguments made against, for
    example, defense against the shorter range missiles, and you
    can see it in article 1, section 2, which is the Russian's
    favorite part of the ABM Treaty, which says, ``Each party
    undertakes not to deploy ABM systems for the defense of the
    territory of its own country and not to provide a base,''
    whatever that is, ``for such a defense, and not to deploy ABM
    systems for defense of an individual region, except as provided
    for in article three of this Treaty,'' which at the time of the
    treaty was the capital or ballistic missile field.
        So that essentially imposes a constraint against any kind
    of a territorial defense, and that is what we are living with
    today.
        Senator Lugar. General, do you have a comment?
        General Piotrowski. Yes. I will make them brief, sir. I
    believe that as long as we have no defense against ballistic
    missiles, it makes them very attractive to people who either
    want to blackmail us or wish us ill. Certainly, they are
    immutable today, and they will remain immutable until we field
    a system that changes that chemistry.
        With regard to retaliation, I think people who believe
    strongly their feelings about retaliation, it is my conviction
    that, and I think you illustrated it, sir, in your comments
    about how carefully we are working in Kosovo to prevent the
    loss of innocent lives, I believe strongly that if a nuclear
    weapon was detonated in Los Angeles that we would retaliate,
    and if it came from Pyong Yang, we would retaliate against
    Pyong Yang, but I am not sure we would use a nuclear weapon and
    kill 8 million or 9 million people who are believed innocent,
    because it is the dictator, Kim Il Sung, who would push the
    button, not 8 million people who live in Pyong Yang, and do not
    believe the retaliation would take that form. We would
    retaliate. We would go in and I think we would root out the
    evil, but I am not convinced in my mind, in my lifetime, that
    we would retaliate with nuclear weapons.
        Senator Lugar. You may be right, but the whole idea with
    the Soviet Union for 50 years was they were certain they would.
    In other words, there would not be some humane thought about
    Moscow at that point.
        General Piotrowski. Yes, sir, and I would agree that
    historically that seemed to work, but I do not believe that
    either side was every pushed to the point where that might have
    even been considered.
        I think we robusted each other. If we had been in an all-
    out tactical nuclear war in Central Europe, and perhaps one
    side was on the brink of loss, that might have been a thought,
    but I do not think we ever came to the point where that was
    even considered, but that is an opinion, not a fact.
        I believe that we have the ability to develop a system
    capable of defeating the threat that we see today that will
    evolve into the capability to defeat threats in the future.
    That would require severe changes to the ABM Treaty as it
    exists today, as Dr. Graham has pointed out.
        I think that we could do useful things if we wanted to
    start deployment and said, as President Kennedy said, we would
    put a man on the moon by the end of the decade and return him
    to earth, we would do things differently and more meaningfully
    than are being done today. For example, we know how to build an
    X-band radar that can track and discriminate. That radar, if
    fielded today, at a site that we believed that we were going to
    deploy, could do useful work in space, in monitoring our own
    test RV's, and on, and on, and on.
        I would field the command and control element in Cheyenne
    Mountain so that the operators could gain confidence as they
    used the radar, and then use simulators or emulators to fly out
    what we thought a ballistic missile interceptor would look like
    to gain confidence in the system, and to evolve that system to
    meet the threats that were extant when we were ready to deploy
    interceptors, and I believe that eventually we would evolve to
    a space-based system probably using lasers, where we had speed
    of light, and we could defeat systems early in the boost phase
    so they would not go far beyond their launch sites, and could
    defeat all of the countermeasures and all of the heinous
    weapons that one could think of, because they would be
    encapsulated in the ballistic missile when it was destroyed in
    boost. Sir, that ends my comments.
        Senator Lugar. Dr. Garwin.
        Dr. Garwin. Well, to go back to the 1972 ABM Treaty, we did
    not enter into that lightly. We did it because, although we
    could see that we could defend against the existing Soviet
    threat, if we fielded a defense, we saw that threat expanding
    without bound. We knew what we were doing in order to counter
    the ballistic missile defense system that the Soviet Union had
    deployed around Moscow, and Moscow, in case nuclear war came,
    would have been destroyed much more thoroughly than if there
    had been no defense against it.
        So that is the problem with trying to build a defense
    against hundreds of nuclear weapons on ballistic missiles from
    Russia. The problem is that there would not be hundreds, there
    would be thousands, and if we look at space-based lasers, for
    instance, we discussed this 15 years ago, and it is very easy
    to destroy these space components.
        In fact, even if there are thousands of space-based
    interceptors, it is a lot easier to destroy them from the
    ground one at a time, soon after they are put in orbit, than it
    is to maintain them in orbit ready to be used at a moment's
    notice.
        So the ABM Treaty, as I have explained, does not in any way
    inhibit our protection right now of U.S. cities against short-
    range, ship-launched cruise or ballistic missiles. It has
    nothing to do with that. It was against strategic ballistic
    missiles, which are either of ICBM range or long-range missiles
    launched from submarines.
        I think that the ABM Treaty could use some updating, but
    rather than go in and say we want to be freed from the
    constraints of the ABM Treaty, we ought to have a specific
    proposal for Russia and now the other partners to the ABM
    Treaty. This proposal, in the case of boost-phase intercept,
    would use not cruisers, but military cargo ships, because we
    need to put large interceptors, much larger than the ones that
    fit into the vertical launch systems of ordinary military
    ships. We do not need very many of these.
        I think that a lot of the support for national missile
    defense comes from a feeling that we could, in fact, deploy an
    effective defense against the Chinese ballistic missiles,
    because there are fewer than 20 of them, and as I indicated, we
    plan to build 75 ground-based interceptors even with this
    preliminary C-1 system.
        So China would see that we are serious about a system which
    they would have to believe would eliminate their deterrent, and
    that is a sure way to get them to build more, and to get them,
    in addition, to work on the countermeasures, which there would
    be no reason to work on now, so presumably they have not
    deployed very many of them, since we have no defensive system
    at all.
        Senator Lugar. Dr. Wright.
        Dr. Wright. Let me make a couple of comments. One, I think
    it is fair to say that the kind of technology that is being
    developed for the system really is remarkable, so I do not
    think that the implication is that somehow U.S. technological
    efforts are not really first rate. I think they are.
        The problem is that you do not have a clear technical
    objective of the program, and I think that that is the key
    difference with the Apollo program. It was clear that you had a
    well-defined technical problem there. As people used to like to
    say, the Moon did not fight back when you were trying to land a
    person on the Moon, and I would say to a large extent the same
    is true of the analogy with the Minuteman missile. Again, I
    think that was a remarkable bit of technology, but it had
    clearly stated goals that were not changing as you went
    through, and that is a very big difference in this case. You
    are not exactly clear what you are going to be shooting at. The
    parameters of the defense of the threat are going to be
    changing.
        Second, I would like to say just a couple of words about
    the blackmail scenario that has been talked about here a couple
    of times. The concern is that if there were a threat of a use
    of one of these weapons that blackmail would tend to limit U.S.
    freedom of action, and the question is, well, what happens to
    that scenario if the defense that you have put up is less than
    perfect?
        Would U.S. political leaders have enough confidence in the
    effectiveness of the missile they would put up, especially
    against weapons armed with weapons of mass destruction, to be
    able to ignore the threat that was made, and completely restore
    U.S. freedom of action, and I think the answer to that is
    simply no, that missile defenses in the end do not
    significantly change the blackmail scenario that has been laid
    out here.
        Finally, I think it is worth keeping in mind that in any
    policy decision you are forced to make difficult tradeoffs, and
    I think that is a real lesson of Kosovo, that the U.S. is
    trying to balance a lot of different issues here.
        Two points there: One is I think that that means it is very
    crucial to understand how well a national defense system would
    work, what its effectiveness in the real world would be
    expected to be, because that is the thing that ultimately you
    are going to have to decide whether that is worth the tradeoff,
    in terms of dollars, in terms of reaction by the countries, in
    terms of other things that you would like to do.
        But also it seems to me that, from my point of view, the
    biggest threat the United States faces today is the very large
    nuclear arsenal that remains in Russia. You had mentioned that.
        At current force levels that the Russians deploy, I do not
    think the kind of defenses that the U.S. are talking about
    would be a major concern, but that is not where I would like to
    end up. I would like to leave the opportunity open and make
    real progress toward getting the Russian nuclear arsenal down
    to as small a number as possible.
        My concern is that Russia has shown that it is concerned
    about U.S. missile defenses, and if that turns out to be U.S.
    deployment of missile defenses, it turns out to be a barrier to
    getting to low levels of Russian nuclear forces, than I would
    say that that is not a good tradeoff, and I would hope that at
    some point in the future, we would be holding a hearing like
    this, at which point Russia would say that they are not
    concerned about U.S. missile defenses, and the kind of
    tradeoffs you would have to make in the policy world would be
    very different, but I do not believe that is where we are
    today.
        Senator Lugar. I would agree that we are not there. I would
    think, however, that Dr. Garwin makes an interesting point, and
    you cannot draft this proposal today, but a specific proposal
    to the Russians, with regard to this, seems to me to be in the
    realm of the doable, not immediately, maybe not in this period
    when we are dealing with Kosovo, but at some stage.
        The question I think maybe Senator Biden and I would have
    is, what is the proposal. This hearing is very helpful in sort
    of flushing out all the questions that ought to be asked, but
    in due course we need to have some more thoughts, with each of
    you as experts, as to what it is that we want to do, and then
    to what extent is the Minuteman analogy applicable? In other
    words, to what extent is this a question of priority, in terms
    of our own national will?
        I gather for the moment it is one of the things we are
    concerned about. From time to time we think about the potential
    for Hawaii, or Alaska, or someplace to be attacked, or we sort
    of know out there that the North Koreans are difficult, and
    maybe others, but it sort of filters in with a lot of other
    things we are thinking about.
        Maybe there is never any way that you have a prioritization
    of 1 to 10, but on the other hand, each of us have to make
    judgments on appropriations. Maybe the two of us are not the
    instrumental persons in ranking them, but we can speak up and
    we all do. To the extent that we really do not understand the
    nature of the threats or which ones we ought to prioritize----
        Senator Biden. Mr. Chairman, on that point, if we could
    followup--and I hope you are willing to keep this going a
    little bit longer, because at least I find it enlightening--I
    truly appreciate the four of you being here. I mean, you are
    the experts. Several of you are among the most renowned
    scientists in the world. You guys know what you are doing.
        I try to distill this after 27 years of dealing with what
    one of our deceased colleagues used to call the nuclear
    theologians. We used to go through this logic about strike,
    counterstrike, what would happen, how many losses, et cetera. I
    would sit there in these hearings and meetings with some of you
    and your predecessors, and feel like I was reading Suma
    Theologica again and arguing about how many angels fit on the
    head of a pin, and motivations, and it gets very complicated.
    But if I can stand back for a second and distill it this way, I
    think it gets at what Senator Lugar has been flushing out:
        Were Senator Lugar President and I Secretary of State, what
    if I came to you guys and said, ``Look, I need you now to
    prioritize for us. Do not tell me the politics; let me do the
    politics. Do not tell me whether it can or cannot be done. Do
    not consider the limitations that are imposed by the ABM
    Treaty. Tell me, in the following list of priorities, what are
    the greatest threats we have?''
        For example, Dr. Garwin, I believe that if, within the near
    term, the scientific community came and the defense community
    came to us and said, ``Look, the single, best immediate way to
    deal with one of the rogue states, North Korea, is to put in
    the Vladivostok area a system that could eliminate the threat
    in the boost phase,'' I believe with every fiber in my being,
    after 27 years of being a part of negotiating teams, or
    witnessing the aftermath of negotiation with the former
    Communist Party in the Soviet Union and the present leadership,
    that with serious and hard negotiation it could be made clear
    to them that it was in their interest as well as our interest
    that that missile defense be done on Russian soil.
        Now, if, in fact, you were to say to me that, that is the
    cleanest--do not give me your politics, let me do the politics;
    I stand for reelection, you all do not--if you were to tell me
    that is the cleanest scientific way to eliminate that threat,
    then President Lugar would have something to work on.
        We have to understand what is underlying this debate. There
    are those like Senator Helms who truly believe that, and he
    quotes it and he means it, ``We have never lost a war and never
    won a treaty,'' so we are divided in this body, as we have been
    for the last 30 years or more, 27 years I have between those
    who think even arms control, notion of arms control is a bad
    idea, and those who think arms control is a means by which we
    can help maintain our security.
        But when we sit and listen to all of you, what we do not
    say to you is, a lot of people in this debate do not trust the
    motivation of those advising us. That is because some would
    listen to what was said today and say what this is really
    about, is not the rogue states. This is really about Russia.
    This is really about moving on to a position in which we have a
    missile defense system that can render harmless Russia's
    nuclear arsenal, because we believe the Russian bear is going
    to reassert himself as an imperialistic aggressor in the world
    community, and we should stamp it out now.
        There are others who believe that the reason for the
    underlying debate about the missile defense system is really
    China, that China is the place where my grandchildren are going
    to face a problem and a threat, and so what this really is
    about is getting a jump on the ability of China ever to be able
    to threaten the United States in any way with nuclear,
    biological, or chemical weapons.
        Then there are others who believe you mean what you say,
    that what you are really talking about is dealing with the
    immediate concern of the rogue nations. So I do not think we
    ever honestly say that out loud, but in a debate on the floor,
    in our caucuses, at least in the Democratic Caucus, that is the
    kind of interplay you get.
        So it gets very hard not only to determine the objectives,
    Dr. Wright, because the truth is, politically, at least, that
    there are different objectives behind the support for an ABM
    system of any kind.
        So back to my question. Given the technological shortfalls
    that we all acknowledge thus far--notwithstanding, General,
    your point that if you set a goal and we have no constraints on
    it, we are more likely to achieve it than not--but given the
    technological shortfall, do any of you believe that the
    proposed national defense should be deployed? Or is the real
    argument whether to build a sea-based or a spaced-based
    ballistic missile defense?
        I listen to you, Dr. Graham, and it seems to me that in
    effect you are arguing for a wholesale rejection of ABM. I
    respect that, but if I listen to you, you seem to be arguing
    that ABM should be rejected wholesale. Others of you are
    saying, well, no, it may need to be amended.
        So my question again is, to repeat it, do you believe the
    proposed system should be deployed, or should the real
    argument, the honest argument, be whether or not to build a
    sea- or a space-based ballistic missile system and sort of
    leapfrog this?
        Dr. Graham. Senator, when you say I think I reject the ABM,
    I presume you mean the ABM Treaty.
        Senator Biden. Yes. I am sorry. I meant to say the Anti-
    Ballistic Missile Treaty. I may be wrong, but it seems that you
    would prefer that it be abrogated, period. If you were advising
    President Lugar, my guess is you would say, ``Mr. President,
    abrogate the treaty, period. Get out of it.''
        Dr. Graham. That is absolutely right, Senator Biden. I
    would say, get out of that treaty. You can always conceive of
    some other treaty you might want to be in, but in this area, I
    believe the U.S. would be far better off without that treaty in
    any of its current manifestations.
        Senator Biden. Should we be going to sea-based and space-
    based missile defense?
        Dr. Graham. I believe we should, Senator Biden, and I do
    not believe it is an either/or question. I think there is merit
    to building a land-based component to the national missile
    defense; although, I would not constrain it to one site.
        Senator Biden. But if you did what General Piotrowski is
    saying, and that is, set a goal, an objective, listening to
    you, I doubt whether you would say that the present land-based
    system being contemplated, if that were the only thing that was
    going to be done, is worth it.
        It seems to me what you are saying is that it is worth it
    as a component of a larger goal. I am trying to understand the
    goal, because General, you have impressed me with your point
    about setting a goal, making a judgment, and if we do that then
    pursue it.
        I am getting mixed signals here, because it does not seem
    as though any of you are saying that this system in and of
    itself--assuming we can negotiate with the Russians and the
    successor states an agreement that what is contemplated here is
    within the ABM Treaty--would you do it if that was all you were
    going to do, Dr. Graham?
        Dr. Graham. Having the experience of--even the current ABM
    system I believe would benefit the United States. One of our
    greatest shortfalls is that we have not developed, constructed,
    and deployed any ABM system for 25 years, so on that basis, on
    a technical basis, I would say, keep going, do it, but I would
    also argue extremely strongly that this is a component and not
    a particularly well-designed component of a territorial defense
    capability, and our goal should be to provide for the defense
    of U.S. territories against ballistic missiles and, by the way,
    as Dr. Garwin mentioned, against cruise missiles and a lot of
    other threats that we have to worry about, but I would say, do
    this, but do not make this the only thing you do.
        If it is the only thing you are going to do, consider it an
    exercise in bringing up our technology, our industrial base,
    and so on, but do not imagine for a minute that it is going to
    protect you against the full range of ballistic missile threats
    that, for example, we identified on the Rumsfeld Commission.
        Senator Biden. Mr. Chairman, this is the last iteration of
    this question I will try. If the Lord Almighty came down and
    sat here in the chairman's seat and said, ``Gentlemen, I can
    assure you that if we do this, this is all we are ever going to
    do in the near term,'' I doubt whether any one of you would
    say, go ahead and spend the money to do this.
        I understand the argument, and if the Lord came down and
    said it is an open-ended deal, you would do this, you got the
    old nose-under-the-tent, you would be able then to ramp up the
    technology, you would be able to attract people back into the
    program, the people we have lost, you would be able to get
    things moving, you would get dollars spent, and that would lead
    to the next thing, and then maybe more. But I guess what I am
    saying is, it seems like an expensive gamble for something that
    on its face technologically does not work, and in the near
    term, even if it worked to specifications, could not do the
    bulk of what you are most worried about, the most likely
    scenarios.
        I understand that dilemma for some of you: you have to
    start somewhere. But if this is where you start and this is
    where you end, it seems to me we have wasted a whole hell of a
    lot of money when we could have been doing other things, and if
    in the process the Russians overreact to this and conclude that
    they should now end any discussion on a START II or START III
    saying ``we are not destroying anything else''--at the end of
    the day we spent a whole hell of a lot of money for something
    that has actually increased the threat. That is because now,
    the only outfit in the world at this moment that can, in fact,
    destroy us, if they just launched them all,--although we would
    get them, too--if they became irrational, the only outfit that
    can truly destroy us--would, in fact, be more dangerous to us
    than they are at the moment.
        If anybody wants to respond to that, fine; if you do not, I
    understand. But that is the dilemma I find myself in, in
    wanting to support a system, as opposed to coming to President
    Lugar and saying, ``Look, Mr. President, we can take care of
    these several things that are immediate threats, and here is
    how I propose it. If you can get the Russians to sign onto this
    ABM Treaty of putting a defense system in Vladivostok, then you
    will be able to take care of this piece now, and if you can get
    them to do this, you can take care of that piece.''
        Senator Lugar. Let us have Dr. Garwin's response here.
        Dr. Garwin. I think we should separate the political from
    the technical. My understanding of the political situation is
    exactly yours, although I could not put it that well. The most
    immediate result of abandoning the ABM Treaty would be to
    abandon any hope of bringing Russian nuclear weapon holdings
    down to a thousand or maybe even to one hundred, and that would
    not be a good result.
        On the technical side, I do believe that we ought to dis-
    aggregate these things, but everybody is so used to decisions
    taking decades or more that they do not have time to respond.
    If you say North Korea is the problem, let us fix North Korea.
    Then we will fix something else tomorrow, or next month, or the
    next year.
        Now, we did once deploy a ballistic missile defense system,
    Safeguard, in Grand Forks, ND. It cost I guess about $21
    billion in 1998 dollars. It was operational for a few months.
    Even though one of the arguments for deploying it was learning
    by doing, we did not want to learn any more after we had
    deployed it, so we shut it down.
        Very often these programs come to you prepackaged. Some
    good things, some bad things. We are all familiar with that,
    even on amendments to appropriations bills. But here there is
    particular evidence, because whenever the national missile
    defense is discussed, it is in these precise words, ``It would
    have as its primary mission the defense of all 50 States
    against a small number of intercontinental range ballistic
    missiles launched by a rogue nation,'' and then General Lyles,
    or whoever is proposing, goes on, ``such a system would also
    provide some residual capability against a small accidental or
    unauthorized launch of strategic ballistic missiles from China
    or Russia. It would not be capable of defending against a
    large-scale deliberate attack.''
        Well, that subsidiary ``residual capability'' is a
    requirement masquerading as an observation. Somebody has
    decided that this is what is absolutely necessary, and to my
    mind, this is the primary purpose of the national missile
    defense; and by the way, since China can only launch its ICBM's
    as a small launch and not a large-scale deliberate attack, then
    China has every reason to believe that this system is oriented
    against them.
        Now, if that is what we want to do, then we ought to say
    that is our purpose in building the system, and we ought to
    consider what kind of countermeasures the Chinese can build to
    such a system; and then I certainly agree, we do not want to
    build this specific proposed system.
        I think we should have a task force to look at the North
    Korea problem and to see what we can do, maybe a U.S.-Russian
    task force would even help, but we would go it alone, and look
    at military cargo ships, and see which approach we want there,
    and then move on.
        Senator Lugar. Let me just ask for one more comment just to
    complete the record. Obviously, this is a strong answer to
    Senator Biden's question as to whether this particular
    discussion today should proceed.
        Do either you, Dr. Graham or General, have a comment in
    defense of proceeding with this system?
        General Piotrowski. Let me answer a slightly different
    question, it is one that I think Senator Biden asked. I believe
    an at-sea ballistic missile defense, if the focus was North
    Korea, is a very sound approach. You would have to solve many
    of the same technical problems, but you have a large thrusting
    booster that is going to burn for 300 seconds, or 250 seconds.
        You can put in a barge or surface ship, the capability to
    defeat that, think such that I would have confidence in it. It
    is a point solution, and one that could then go on from that
    point solution as other things evolve. So I am not at all
    against an at-sea solution for a specific capability. I accept
    the fact that this is a very daunting and difficult political
    issue as well as technical issue, but that is a useful solution
    against a point problem.
        Senator Lugar. But how about this NMD, should we proceed
    with this, that is one of the basic questions of the hearing.
    Do you have a final comment, sir?
        Dr. Graham. Yes, Senator Lugar. Notwithstanding Dr.
    Garwin's generous interpretation of the ABM Treaty with regard
    to defense of our coastal cities, I believe that what we are
    seeing now is about the best ballistic missile defense system
    for the U.S. territory that we can build under the constraints
    of the ABM Treaty and, in fact, even this system will violate
    common interpretations of the ABM Treaty in several areas.
        I believe we should build a more effective system. If this
    is where we have to start under this administration and its
    constraints, I believe it is worth starting. We will learn a
    lot. We will make up for a lot of the damage done to our
    technical infrastructure in this area over the last 25 years of
    particularly not deploying ballistic missile defense systems.
        But this is not an end-point issue. There is no silver
    bullet in ballistic missile defense, or offense, for that
    matter, and we are never going to get to the point where we say
    OK, that is it, that is the ultimate system, we never have to
    think about it again.
        Like all other offense and defense interactions, it will be
    a continual process of assessing the defense and see what needs
    to be done to bring it into balance. I hope that someday we
    will get to the point where we decide that the Soviet Union or
    now Russia really does not have some kind of an innate
    privilege to kill as many Americans as it wishes, whenever they
    wish to, and that we do not have a built-in privilege of
    killing as many Russians as we want to whenever the occasion
    might arise.
        That was forced upon us by the invention of ballistic
    missiles and nuclear warheads 50 years ago, and I think it is
    something today that we can get out of with a determined
    effort. The trouble is that we have gotten so accustomed to
    that in mutual-assured destruction and other related
    philosophies, that we forget that the problem is trying to
    survive as a country and as nations, and not accommodating
    ourselves to a threat and absorbing it, when, in fact, we can
    defend ourselves against it, but the defense will be a
    continuing process, it will have many components, and it will
    have to evolve over time.
        Senator Biden. I know you said the last thing, Mr.
    Chairman, but can I just followup on one point that Dr. Graham
    just made? If you could get the ABM Treaty amended to
    accommodate the defense system that Dr. Garwin talked about,
    and that is a sure defense, or a defense against cruise----
        Dr. Garwin. We do not need amendments.
        Senator Biden. Pardon me?
        Dr. Garwin. We do not need amendments for that.
        Senator Biden. No, but Dr. Graham thinks you do. If, in
    fact, there was no question that that was allowed, either
    because they agree it is allowed or we amended the treaty,
    would that not be a preferable way to go than this, assuming
    there was no question that the ABM Treaty permitted it? Which
    would you prefer then?
        Rather than assessing that you cannot do it, assume that
    President Lugar gets it amended, or it is already permissible.
    Which is preferable, in terms of the threat we are talking
    about, at least the immediate short-term threat?
        Dr. Graham. You would need to change more than that in the
    treaty so that it did not interfere with our ability to provide
    for a territorial defense. For example, you would have to
    remove the clause in the treaty that says we cannot provide for
    a territorial defense. You would also have to change the part
    about where we can locate interceptors and where we can locate
    radar sets to guide and the fire control solutions for the
    interceptors.
        Eventually, if you get to the point of the argument where
    you say the ABM Treaty is not interfering with our ability to
    build at least a light, that is, tens to hundreds, but not
    thousands of warheads, ABM system, then I would say, OK, it is
    a matter of indifference, because it is not blocking our
    ability to do what we should do, at least at the level of the
    Third-World threat, the level of the China threat, and the
    level of the accidental or inadvertent Russia threat.
        That would be a big step forward, in my view. If you can
    arrange to amend the treaty so we are not constrained in that
    direction, more power to you.
        Senator Biden. But my point is, if you could, would you
    then not go this route, but go the route that Dr. Garwin is
    talking about? That is the point I am trying to get at. In
    other words, every time I talk to people like you, Doctor, who
    know so much more about the technology than I do, you give me
    the political or the treaty constraints. Assume you did not
    have that constraint, which of the two approaches would you
    take?
        Dr. Graham. It is not an either/or situation. You would
    certainly want to have a high priority on defending against
    short-range ballistic missiles launched, for example, by ships.
    That should be a high priority.
        It is clear that North Korea, Iran, and other countries are
    also developing longer- and longer-range ballistic missiles,
    and you want to have at least a modest defense against long-
    range ballistic missiles, so that does not become their attack
    of choice. You also want to have a cruise missile defense.
        So when you cast it as an either/or situation, it is not
    the real-world problem. It is any more than having a, whether
    you have a police department or a fire department in a town, it
    is an either/or situation. You want to have them both. Here, we
    should have the defenses that Dr. Garwin described, we should
    have long-range defenses, and someday we should have space-
    based defenses to help against some of the threats he described
    earlier. You have to take all of those into account, and the
    treaty blocks you in virtually all of those.
        Senator Biden. Would you share this with the Russians?
        Dr. Graham. What is the this in that statement?
        Senator Biden. Everything. Everything that you are talking
    about. Any system you built that dealt with missile defense.
    The implication of your earlier statement was, we should end
    the era where the Russians feel that they can at will destroy
    Americans and we feel that at will we can destroy them.
        Would you share the system with them, whatever anti-
    ballistic missile system is developed?
        Dr. Graham. I would share it with them in this way. Early
    on, while they still have nuclear weapons, I would be glad to
    share the functionality of the system, its capabilty to
    intercept missiles. Later, when they did not have any nuclear
    weapons, or any significant number, and we did not have any
    significant number, then I would be willing to consider the
    details of the system as well, but the more they know about the
    details, the more they would know about how to overcome the
    system, and I would reserve that to a later era.
        Senator Lugar. Thank you very much, Dr. Graham.
        Let me thank each one of you on behalf of the chairman and
    the distinguished ranking member for the extraordinary
    testimony and your willingness to work hypothetically through
    each of our questions.
        I think the hearing has been a very important one, and we
    are glad that so many other Americans are sharing with us,
    those in the audience in this hearing today, and those who have
    watched the televised portion of this. We thank you for coming.
        [Whereupon, at 12:34 p.m., the committee adjourned, to
    reconvene at 10 a.m., May 5, 1999.]

        DOES THE ABM TREATY STILL SERVE U.S. STRATEGIC AND ARMS CONTROL
                         OBJECTIVES IN A CHANGED WORLD?

                                  ----------

                             WEDNESDAY, MAY 5, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:09 a.m., in
    room SD-562, Dirksen Senate Office Building, the Hon. Chuck
    Hagel presiding.
        Present: Senators Hagel and Biden.
        Senator Hagel. On behalf of the Foreign Relations
    Committee, I welcome all of you to today's hearing, the fourth
    in the Foreign Relations Committee series of hearings that have
    focused on the 1972 Anti-Ballistic Missile Treaty.
        This morning's distinguished witnesses are experts in the
    fields of arms control and missile defense. They are the
    Honorable Jim Woolsey, Director of Central Intelligence from
    1993 to 1995; Honorable Ronald Lehman, Director for the Arms
    Control and Disarmament Agency from 1989 to 1993; Dr. Keith
    Payne, a foremost scholar on arms control issues and president
    and founding research director at the National Institute for
    Public Policy; and my--not old, but long-time friend--Air Force
    General Eugene Habiger, former Commander in Chief, United
    States Strategic Command.
        And we welcome you all here this morning, and we are
    grateful that you would spend a little time to make the kind of
    contributions that are important to this issue. And we
    appreciate your presence because within each of you embodies a
    number of insights that are very important to the perspective
    on not only this issue, but the long-term issues that we are
    dealing with relative to the consequences of what we do next,
    and how we go about taking that action.
        At the outset, let me say that I personally strongly
    believe that the United States must begin the task of
    immediately designing, building and deploying a national
    missile defense system to protect the American people from the
    growing threat of ballistic missile attack.
        The Rumsfeld Commission has warned rather clearly that both
    North Korea and Iran ``would be able to inflict major
    destruction on the U.S. within about 5 years of a decision to
    acquire such a capability.''
        No one that watched North Korea's flight testing of the
    Taepo Dong-I or Iran's launches of the Shahab-3 can reasonably
    doubt that the decision has been made to go forward with their
    technology. Both of these nations know that America cannot now
    defend itself against missile attack, as does all of the world.
        And yet this administration continues to stall and delay in
    deploying such a defense. It is becoming very clear that over
    the course of this committee's investigation that the true
    source of the Clinton administration's opposition to ballistic
    missile defense seems to be its devotion to what many of us
    believe is an antiquated arms control agreement, the 1972 ABM
    Treaty.
        Like many of my colleagues, I am deeply troubled that this
    country is being held hostage to an outdated concept of
    strategic deterrence that has outlived its purpose. It is no
    longer relevant, and most importantly has placed the United
    States in a very dangerous and vulnerable position. Former
    Secretary of State Dr. Henry Kissinger put it best when he
    recently wrote, and I quote, ``The end of the cold war has made
    a strategy of mutually assured destruction largely irrelevant.
    Barely plausible when there was only one strategic opponent,
    the theory makes no sense in a multi-polar world of
    proliferating nuclear powers.''
        Gentlemen, again, we are grateful for your testimony, and
    the committee looks forward to hearing your insights.
        With that, let me now ask each of you to present your
    testimony.
        I will be joined by colleagues as votes occur and other
    committees lighten their load and we would ask that each of you
    give your statements and then we will come back with questions.
        I would ask Mr. Woolsey to begin. Thank you.

      STATEMENT OF HON. R. JAMES WOOLSEY, FORMER DIRECTOR OF THE
                      CENTRAL INTELLIGENCE AGENCY

        Ambassador Woolsey. Thank you. Mr. Chairman, I will, if it
    is all right, ask for my statement to be inserted in the
    record, and I will just speak informally from it for a few
    minutes.
        Senator Hagel. It will be.
        Ambassador Woolsey. What I would like to suggest this
    morning, Mr. Chairman, is that in the circumstances of today,
    strong support for ballistic missile defense and a willingness
    to amend substantially, even to withdraw from, the ABM Treaty
    is a reasonable position.
        And I want to suggest to the committee that it is a
    reasonable position even for those who, like myself, have
    historically emphasized the central importance of offensive
    strategic systems, have seen some value in certain arms control
    agreements, and did not initially welcome President Reagan's
    Strategic Defense Initiative. The circumstances have changed,
    and to my mind that calls for a substantial change in our
    assumptions and policies.
        I will skip the biographical points I made really to just
    point out to the committee that I have been involved in this
    issue for 30 years in one way or another, in a number of
    different capacities.
        And I mention that in 1987, immediately after the Reykjavik
    summit, Brent Scowcroft and I co-authored an article in the New
    York Times Magazine, which included the following statement in
    criticism of the proposals to end all ballistic missiles that
    President Reagan had made at Reykjavik and to rely,
    essentially, completely on SDI.
        We wrote, ``The official line has become a sort of a
    strategic Manichaeanism: that there exists only the dawn of SDI
    and the darkness of mutual assured destruction that went before
    it. The concept of careful and stable deterrence, with
    modernization of nuclear weapons to improve their
    survivability, some militarily useful work on defensive systems
    and moderate arms control was abandoned.''
        Now, in the circumstances of the time, Mr. Chairman, I
    think that that was at least a reasonable and defensible
    position which we advanced.
        But it is important to realize that for a number of those
    of us who held that set of views, it was not desirable that the
    world consisted of a strategic situation in which assured
    destruction was mutual.
        It was very far from being desirable from our point of view
    that the Soviet Union was able to destroy the United States.
    Quite a few of us never liked the mutual aspect of mutual
    assured destruction at all.
        But we persuaded ourselves that nonetheless the ABM Treaty
    presented the lesser of two evils really for two reasons. First
    of all, we were not convinced that the technologies that were
    available or even foreseeable in the early seventies, when the
    treaty was signed and even through much of the eighties, for
    ballistic missile defense were going to spawn deployable
    systems that were capable of defending us reliably against our
    major concern, which was an all-out Soviet attack.
        Threats of lesser magnitude, such as from rogue states,
    were not really on the horizon at that point. And as far as
    China was concerned, the central strategic reality with respect
    to China for most of that period was that we were cooperating
    with China in what began in the Nixon administration--I think a
    rather clever triangulation effort to work cooperatively with
    China against the much larger threat, the Soviet Union.
        So for that set of reasons, ballistic missile defense was
    not at the forefront of much of--for many of us--our thinking.
        The second reason was a sort of belt and suspenders reason.
    We felt that the massive Soviet lead in large ICBM's equipped
    with MIRV's seriously threatened our own ICBM force,
    particularly Minuteman. And that would force us, in a crisis--
    particularly a crisis that might arise in Europe where the
    Soviets had a huge conventional force, particularly the Group
    of Soviet Forces in Germany that threatened Western Europe--in
    which if nuclear war should come about, we might be thrown back
    on relying very heavily on our own ballistic missile
    submarines, the ICBM's and a major share of the bombers being
    vulnerable.
        In such a situation, Soviet deployment of an ABM system, we
    felt, could lead Soviet advisors and the Politbureau to be too
    optimistic.
        We thus felt it was important to limit Soviet defenses to
    the relatively small deployment around Moscow because they had
    an extensive infrastructure of sophisticated radars and air
    defense interceptors that in some circumstances might be
    applicable to dealing with an American retaliatory strike.
        And we felt that deterring the Soviets in a crisis depended
    very heavily on our being able to clearly and under all
    circumstances penetrate their defenses.
        We believed that strategic stability required the Soviets
    to have that degree of certainty, and we were willing to pay in
    the coin of limiting American defensive systems in order that
    the Soviets would not have effective defenses.
        Now that thinking may seem dated today--and to some it was
    not persuasive in 1972, and it came increasingly to be
    questioned after President Reagan's famous 1983 SDI speech.
        By the end of the cold war and in the nineties the
    strategic changes are major: (a) the rise of the possibility of
    an accidental or unauthorized launch by the increasingly
    chaotic Russian military forces, even including the Strategic
    Rocket Forces; (b) persistent work on longer range and more
    flexible ballistic missiles and on weapons of mass destruction
    by rogue states; and I would add, (c) China's increasingly
    intransigent position with respect to Taiwan and its own
    ballistic missile threat against the United States. For all of
    these reasons, I believe that the ABM Treaty in today's world
    really has to be seen in an entirely different light.
        First, I would say there is common ground possible between
    those of us who have been on different sides of the ABM Treaty
    debate in the past. We may have both been somewhat right and
    somewhat wrong. It does not matter. Together, we won the cold
    war. It is time--indeed, it is past time--to go on to the next
    set of problems.
        Second, if we focus on the strategic realities of today,
    there is, in my judgment, no strategic rationale for the ABM
    Treaty. The old rationale of our wanting to limit Soviet
    defenses as spelled out above does not apply to today's Russia
    or to the Russia of the foreseeable future.
        Even if that country turns more hostile to the United
    States than it is today, Russia is no longer capable of
    threatening Europe with many divisions of conventional forces,
    so it would have no advantage in a crisis on that continent.
        Moreover, Russian strategic nuclear forces do not threaten
    a substantial share of our nuclear deterrent. The deterrent
    that we do maintain is no longer heavily reliant on fixed land-
    based ICBM's that might be vulnerable to Russian attack.
        Hence, we have no particular reason to want to limit
    Russian defenses to ensure that our retaliatory forces would be
    able to penetrate those defenses.
        The only rationale in my judgment for the ABM Treaty today
    is one that is rooted in current foreign affairs concerns.
        The Russians do not want us to withdraw from it, so doing
    so would, presumably, upset them and perhaps lead them to do
    other things that we do not want. For example, they may
    threaten for the dozenth time or so to refuse to ratify the
    START II Treaty.
        But it seems to me there is a limit to the degree to which
    we should let this sort of thing influence us. In the first
    place, numbers of Russian warheads are not the principal threat
    to strategic stability now. We are not worried particularly
    about their launching an attack on our fixed land-based ICBM's.
        It is better for the Russians to have more warheads if
    those are controlled by a solid command and control system,
    than fewer warheads in a chaotic situation.
        Numbers of warheads were the currency back in the seventies
    and even into the eighties because of the threat to our fixed
    land-based ICBM's.
        As far as I am concerned, that is not the currency any
    more. That is not the measure, the figure of merit, that one
    should focus on when dealing with the strategic balance.
        It seems to me that it is worthwhile--because Russia is an
    important nation and a country that we need to work with on a
    number of matters--and important to propose changes to the
    Russians with respect to the ABM Treaty, and to try to work
    with them as we did in 1992.
        President Yeltsin himself made a remarkable speech in
    January 1992 and that led to the Ross-Mamedov talks in 1992-93,
    in which the Bush administration tried to bring the Russian
    Government around to support for substantial amendments to the
    ABM Treaty and a reasonably substantial deployment of ballistic
    missile defenses in the United States.
        It is worth trying in my judgment to return to the days of
    1992. I believe with the current Russian Government, success is
    most unlikely, but I think the probability is not zero.
        If such an approach proves fruitless, there are ample legal
    and strategic grounds, in my view, for withdrawing from the
    treaty.
        We cannot perpetually let our security versus the likes of
    North Korea, Iran, and Iraq be held hostage to Russia's not
    wanting us to have defenses.
        In the meantime, Mr. Chairman, I do not support, and I
    urged the Senate nearly 2 years ago not to approve, the
    delineation agreement that the administration has reached with
    the Russians, which limits unnecessarily the effectiveness of
    our theater defenses, nor the accompanying expansion of the
    treaty to encompass Belarus, Ukraine and Kazakhstan.
        That expansion to include those countries is a step for
    which, in my judgment, there is not even the tiniest shred of a
    strategic rationale. We do not fear an attack from Belarus,
    Ukraine or Kazakhstan with intercontinental ballistic missiles,
    because they do not have any.
        We do not need to limit their defenses in order to deter
    them from attacking us; therefore, we do not care what kind of
    defensive systems Belarus, Ukraine and Kazakhstan have. And
    there is absolutely no reason for our giving someone such as
    Mr. Lukashenko, who speaks for the most unreconstructed parts
    of the reds and browns in the former Soviet Union, some sort of
    veto over our ability to defend ourselves.
        In my judgment, Mr. Chairman, only a very major
    modification of or withdrawal from the treaty would meet our
    strategic needs.
        As interpreted by the administration, the treaty is even
    undermining the effectiveness of our theater ballistic missile
    defenses at the present time, systems that are not supposed to
    be covered by the treaty.
        A very limited one- or two-site defense of the United
    States of the sort that might be compatible with a treaty that
    has only been modestly amended would be essentially worthless
    against some perfectly plausible threats such as ship-launched
    ballistic missiles. That is one of the threats that we
    identified during the deliberations of the Rumsfeld Commission
    on which I served.
        Indeed against some very plausible threats, such as
    ballistic missiles carrying clusters of biological weapons that
    might be released early in an ICBM's trajectory, only boost-
    phase intercept from space is going to offer a possible
    solution.
        In short, Mr. Chairman, the world in which the ABM Treaty
    was an imperfect but, in my view, a reasonable accommodation to
    the strategic circumstances in which we found ourselves is gone
    with the wind.
        In the new world in which we live, we now require defenses
    for our security. And our treaty obligations should be adjusted
    to serve our strategic needs, not the other way around.
        Thank you, Mr. Chairman.
        Senator Hagel. Mr. Woolsey, thank you.
        [The prepared statement of Ambassador Woolsey follows:]
                  Prepared Statement of Hon. R. James Woolsey
        Mr. Chairman, Members of the Committee, it is an honor to be asked
    to testify before you today on the topic of the Anti-Ballistic Missile
    Treaty of 1972.
        It is my purpose to suggest to you that, in the circumstances of
    today, strong support for ballistic missile defense and a willingness
    to amend substantially, even to withdraw from, the ABM Treaty is a
    reasonable position--even for those who, like myself, have historically
    emphasized the central importance of offensive strategic weapons, have
    seen some value in certain arms control agreements, and did not
    initially welcome President Reagans Strategic Defense Initiative. The
    circumstances have changed, and that calls for a substantial change in
    our assumptions and our policies.
        In order to make this point, I believe it would be informative to
    trouble you with a few biographical points. Thirty years ago this fall,
    as a Captain in the U.S. Army, I was serving as an analyst of strategic
    programs in the Office of the Secretary of Defense, and in that
    capacity I was assigned as an advisor on the U.S. delegation to the
    first round of the SALT I talks in Helsinki. Thus I was a very junior
    participant in the initial negotiations that led, three years later, to
    the ABM Treaty. When the treaty was approved by the Senate in 1972 I
    was the General Counsel of the Senate Armed Services Committee and
    assisted Senator Stennis in the Committee's consideration of the treaty
    and the floor debate. Then for three years in the late 1970's, as Under
    Secretary of the Navy, I was heavily involved in the Navy's strategic
    force planning, especially for the Trident program, some important
    aspects of which were influenced by the existence of the treaty.
        In 1983, I was a member of President Reagan's Commission on
    Strategic Forces, the Scowcroft Commission (and the principal draftsman
    of its report); we did not reject SDI when it was announced by the
    President during the middle of our deliberations, but it is fair to say
    that the Commission assigned SDI a decidedly secondary role to what we
    felt to be the nation's central strategic objective: maintaining a
    survivable and effective offensive deterrent. Following the Reykjavik
    summit of 1986, I was the co-author of an article in the New York Times
    Magazine that was highly critical of President Reagan's proposal there
    to ban all ballistic missiles and rely principally on SDI for our
    strategic protection. We wrote in the article:

            ``The official line has become a sort of strategic
            Manichaeanism: that there exist only the dawn of S.D.I. and the
            darkness of mutual assured destruction that went before it. The
            concept of careful and stable deterrence, with modernization of
            nuclear weapons to improve their survivability, some militarily
            useful work on defensive systems and moderate arms control, was
            abandoned.''

        One aspect of the approach to strategic issues summarized by this
    quotation, for many of us in the seventies and eighties, included
    adherence to the ABM Treaty. But for an important share of the treaty's
    supporters, acceptance of the treaty was not accompanied by any lapse
    into revery about the beauty of the concept of mutual assured
    destruction. It was very far from desirable, for many of us who
    supported the treaty then, that by agreeing not to deploy nationwide
    ballistic missile defenses we would thereby guarantee most Soviet
    missiles a free ride to American targets--quite a few of us never liked
    the mutual aspect of mutual assured destruction. But we persuaded
    ourselves then that, nonetheless, the treaty presented the lesser of
    two evils, for two reasons.
        First, we were not convinced that the technologies foreseeable in
    the early seventies, or even through much of the eighties, for
    ballistic missile defenses were going to spawn deployable systems
    capable of defending reliably against our major concern--an all-out
    Soviet attack. Very little else with respect to threats was on anyone's
    mind. Thus we felt that the U.S. was not giving up something that was
    practically attainable when it signed on to the treaty. Threats of
    lesser magnitude, other than the one that came to be posed by Chinese
    ICBM's, were not apparent in those years. (And for most of this period
    we were working cooperatively with China against the Soviet Union on a
    range of issues.)
        Second, we felt that the massive Soviet lead in large ICBM's
    equipped with MIRV's, together with its reasonably capable ballistic
    missile submarine force, put a large share of our own ICBM's and
    bombers theoretically at risk if the Soviets should ever contemplate
    launching a first strike in the midst of some crisis. This forced us in
    our strategic planning to rely heavily on our own ballistic missile
    submarines as the only truly survivable part of the American nuclear
    deterrent. Soviet deployment of an early ABM system around Moscow,
    together with their extensive infrastructure of sophisticated radars
    and air defense interceptors throughout the country, led some of us to
    join the you-need-both-a-belt-and-suspenders set. We wanted to ensure
    that--even if U.S. offensive forces were heavily depleted by a Soviet
    attack and Soviet defenses were upgraded--the United States' ability to
    retaliate using submarine-launched missiles alone would be clear and
    sufficient. We felt that checking Soviet recklessness in a crisis--most
    likely one in which the Soviets would be able to count on superiority
    of conventional forces in Europe--heavily depended on this clarity and
    sufficiency, and that limiting Soviet deployment of even less-than-
    perfect ABM defenses was extremely important to this end.
        This thinking seems dated now--to some it was not persuasive even
    in 1972--and it came to be increasingly questioned after President
    Reagan's famous 1983 SDI speech. By the nineties it became outdated in
    almost all of its assumptions due to the end of the cold war, the rise
    in the possibility of an accidental or unauthorized launch of a
    ballistic missile by increasingly chaotic Russian military forces, and
    persistent work on both longer-range and more flexible ballistic
    missiles and on weapons of mass destruction by rogue states such as
    North Korea, Iran, and Iraq.
        My point with respect to the ABM Treaty in today's world is really
    twofold.
        First, there is common ground possible, today, between those who
    have been on different sides of the ABM Treaty debate in the past. Both
    those who have opposed the treaty for many years (often in company with
    early support of the more ambitious forms of SDI) and those, such as
    myself, who supported the treaty during the same period and were
    skeptical of ambitious SDI, need to realize that what matter, today,
    are the decisions that now need to be made, not ancient jousts between
    SDI supporters and ABM Treaty supporters during the era before the fall
    of the Berlin wall. We may have both been somewhat right and somewhat
    wrong. It doesn't matter. Together we won the cold war. It's time,
    indeed past time, to go on to the next set of problems.
        Second, if one focuses on the strategic realities of today, I would
    submit that there is no strategic rationale for the ABM Treaty. The old
    rationale for our wanting to limit Soviet defenses, as spelled out
    above, does not apply to today's Russia or the Russia of the
    foreseeable future, even if that nation turns more hostile to the U.S.
    than it is today. Russia is no longer capable of threatening Europe
    with many divisions of conventional forces so it would have no
    advantage in a crisis on that continent. Consequently we do not need to
    rely in any day-to-day sense on our strategic offensive nuclear forces
    to protect our NATO allies from Russian conventional attack. Moreover,
    Russian strategic nuclear forces do not threaten a substantial share of
    our nuclear deterrent: the deterrent that we do maintain is no longer
    heavily reliant on fixed land-based ICBM's that might be vulnerable to
    Russian attack, and hence we have no reason to want to limit Russian
    defenses to ensure that our retaliatory forces would be able to
    penetrate Russian defenses.
        The only rationale for the ABM Treaty today is one rooted in
    current foreign relations concerns: the Russians do not want us to
    withdraw from it, so doing so would, presumably, upset them and perhaps
    lead them to do other things that we don't want. For example, for the
    umpteenth time they may threaten to refuse to ratify the START II
    Treaty. But it seems to me there is a limit to the degree to which we
    should let this sort of thing influence us. The Russians were willing
    in 1992, following President Yeltsin's remarkable speech in January of
    that year, to consider substantial revisions to the ABM Treaty and to
    discuss mutual work on ballistic missile defenses with us. Perhaps this
    or the next Russian government will prove similarly reasonable in the
    future. That doesn't look likely today, but it is still worth offering,
    in my view, to work with the Russians in the way that we began in 1992
    and abandoned in 1993. If that proves fruitless there are ample legal
    and strategic grounds for withdrawing from the treaty. We cannot
    perpetually let our security vis-a-vis the likes of North Korea, Iran,
    and Iraq be held hostage to Russia's not wanting us to have defenses.
        In the meantime, in my judgment, the Senate should not approve the
    delineation agreement that the Administration has already reached with
    the Russians, which limits unnecessarily the effectiveness of our
    theater defenses, nor the accompanying expansion of the treaty to
    encompass Belarus, Ukraine, and Kazakhstan--a step for which there is
    not even the most remote strategic rationale. We don't have any reason
    to want to limit these countries' ballistic missile defenses. Why
    should we let them have a hand in limiting ours?
        In my view only a very major modification of, or a withdrawal from,
    the treaty would meet our strategic needs. Even if one believes that a
    full defense against an all-out Russian attack is not attainable, the
    treaty clearly hinders our ability to defend ourselves against a number
    of lesser and plausible threats during this post-cold war era: rogue
    states, an accidental launch from Russia, or a launch from China
    provoked by, e.g., a crisis over Taiwan. As interpreted by,
    particularly, this Administration, the treaty is even undermining the
    effectiveness of our theater ballistic missile defenses, systems that
    are not supposed to be covered by the treaty. A very limited one- or
    two-site defense of the U.S. of the sort that might be compatible with
    a treaty that has been only modestly amended, would be essentially
    worthless against some perfectly plausible threats, such as ship-
    launched ballistic missiles, that we identified during the
    deliberations of the Rumsfeld Commission. Indeed against some very
    plausible threats, such as ballistic missiles carrying clusters of
    biological weapons that may be released early in the trajectory, only
    boost-phase intercept from space offers a likely response.
        In short, Mr. Chairman, the world in which the ABM Treaty was an
    imperfect, but in my view reasonable, accommodation to the strategic
    circumstances in which we found ourselves is gone with the wind. In the
    new world in which we live we now require defenses for our security,
    and our treaty obligations must be adjusted to serve our strategic
    needs, not the other way around.

        Senator Hagel. Mr. Lehman.

    STATEMENT OF HON. RONALD F. LEHMAN, FORMER DIRECTOR OF THE ARMS
                     CONTROL AND DISARMAMENT AGENCY

        Secretary Lehman. Thank you, Mr. Chairman, Senator Biden. I
    am honored that you have asked me to come back and appear
    before the committee again.
        In particular, I want to thank you and your staff for some
    flexibility in accommodating my schedule. And in particular, I
    would like to say that I am honored to be appearing with this
    particular panel, because I know each of these individuals
    personally and hold them in the highest regard.
        I also should emphasize up front that I am only speaking
    for myself. These are my personal views and are not necessarily
    the views of any organizations I have been associated with or
    any past or present administration. They are simply my views.
        You have asked for my thoughts on the interaction of arms
    control and ballistic missile defense including some
    elaboration of how we have tried in the past to enhance the
    relationship. Today, the importance of this issue is every bit
    as significant as it was during the cold war, and a vast
    literature on the subject exists.
        In general, the public debate for and against ballistic
    missile defenses, like that on arms control itself, has
    experienced much oversimplification over the years by both
    advocates and opponents.
        Given the complexities involved, it should not be
    surprising that there have been considerable differences among
    thoughtful experts as well. Nevertheless, uncertainty has been
    reduced, and trends are becoming ever more clear.
        The spread of ballistic missiles has been more rapid than
    had been widely understood. In this age of globalization and
    increased cooperation among proliferant states, the missile
    capabilities of many states, both potential aggressors and
    those who feel increasingly threatened, is growing.
        Likewise, the technologies which are at the heart of
    ballistic missile defense--technologies such as high-
    performance computing, micro-electronics and sensors--are also
    advancing rapidly, bringing with them the prospect of more
    effective defensive systems, especially for advanced post-
    industrial states.
        Even in the areas of military doctrine, deterrence theory,
    and arms control policy, areas in which the residual heat of
    past debates most often distorts a clearer vision of the
    future, greater convergence can be detected.
        Indeed, support for ballistic missile defenses has always
    existed in some measure across party lines and left and right
    across the ideological spectrum.
        The passage of the National Missile Defense Act of 1999
    gives hope, but not certainty, that a new consensus may be
    possible.
        A process of determining afresh the enduring principles and
    new realities of arms control and ballistic missile defense is
    needed. The hearings being held by this committee are an
    important step in that process.
        Much has changed, but some of the basics have not changed.
    Both arms control and ballistic missile defense must be seen in
    the context of broader national goals and national security
    strategies.
        Even within the realm of countering ballistic missile
    threats, arms control and ballistic missile defenses are
    themselves additional tools, but not the only tools for
    enhancing our security.
        These tools must be integrated with our military forces and
    doctrine, our technological and industrial prowess, our
    diplomacy and other components of a multifaceted effort to
    enhance the Nation's security.
        Properly integrated, arms control, ballistic missile
    defenses and the other tools at our disposal all together
    result in a strategy for which the total is greater than the
    sum of its parts.
        Unfortunately, incomplete, disjointed and unbalanced
    approaches can have the opposite result. Bringing all the parts
    together effectively is not easy given the complexities among
    and within nations.
        There is much that can be said about all of this, but in
    the interest of providing time for discussion, let me highlight
    several key judgments:
        One, ballistic missile defenses, both strategic and
    theater, can significantly enhance deterrence and crisis
    stability, increase our military capabilities, protect allies,
    friends and coalitions, strengthen nonproliferation, support
    our diplomacy, improve the conditions for peace in troubled
    regions, and expand the prospects for effective arms control
    and reductions.
        The proper balance between offensive and defensive
    capabilities shifts over time, but the most significant, near-
    term capabilities missing from our current national security
    arsenal are defenses against ballistic missiles.
        Missile defenses do not substitute for a multifaceted
    national security strategy, but neither does even the most
    effective multifaceted strategy eliminate the need for
    deployment of ballistic missile defenses in today's world.
        Ballistic missile defenses do not eliminate the need for a
    continuum of military forces, both nuclear and conventional,
    but they can enhance global and regional deterrence and support
    our military forces in combat.
        Deployment of significant ballistic missile defenses is
    inevitable, but it is not at all inevitable that they will be
    deployed in time to meet the needs of the United States and its
    allies and friends.
        The key to a timely deployment decision remains the early
    demonstration of success, which in turn requires meaningful
    program objectives and modern management with dynamic
    exploitation of technology and competition.
        That deployments will take longer and cost more than is
    necessary may result from divisions within the policy community
    over the proper role of defenses, but the most immediate
    constraints appear to be those which deny technologists the
    ability to demonstrate the best that is feasible.
        The United States should develop its ballistic missile
    programs primarily to address its own requirements and
    timeframes, but a better way to proceed is cooperatively with
    Russia, Israel, Japan and others, recognizing that specific
    needs, urgency and feasibility differ among nations, and that
    cooperation on early warning and other theater defenses may be
    equally vital to many nations.
        Appropriate treaties, agreements and joint efforts on
    offensive and/or defensive arms can enhance security and
    complement the deployment of missile defenses, but failure to
    adjust to the changed realities that necessitate the deployment
    of ballistic missile defenses may ultimately prove to be the
    greatest threat to existing and future arms control agreements
    as well as to our security.
        An inability to exploit ballistic missile defenses for a
    more cooperative approach to international security may deny
    the United States opportunities for leadership and tension
    reduction and may perpetuate the corrosive political effects of
    international relationships too often rhetorically defined in
    terms of mass mutual hostages.
        Obviously, not everyone favors the deployment of ballistic
    missile defense. A serious discussion of the issues will be
    necessary to broaden support, and a more vigorous marketplace
    of ideas will help ensure that the gains are maximized and
    costs minimized.
        Because such a process must adapt to a world in an
    uncertain transition, I would be skeptical of any offers of a
    single true path. Nevertheless, I believe it would be useful to
    remind everyone that windows of opportunity do open, although
    sometimes not clearly and not for long.
        The situation as it played out in 1992 offers a number of
    insights.
        With the breakup of the Soviet Union, the cold war began to
    wind down, leaving behind many legacy issues with which we are
    still dealing. The political changes suggested opportunities
    for Russia and the United States to work together to build a
    stronger, safer basis for their common security.
        Each recognized that the world had changed dramatically,
    yet each was uncertain how much cooperation would be possible
    and how much of the old relationship would or should remain.
        As interactions with Russia improved and as both sides cut
    back on their military preoccupation with the other, the United
    States modified its planned ballistic missile defenses and,
    interestingly, Russian showed greater interest in cooperating
    on ballistic missile defense.
        At the same time, the two nations continued with the most
    comprehensive arms control accomplishments ever achieved.
        I should add that Ambassador Woolsey was very helpful in
    quite a number of those. We did not always agree on each and
    every issue, but I still commend him. It took a bipartisan
    effort to pull together that remarkable arms control
    revolution.
        Senator Biden. Mr. Secretary, it looks like you got him
    now, though.
        Secretary Lehman. We keep working on him. It is never easy.
        In September 1991----
        Senator Biden. He has gone over.
        Secretary Lehman. In September 1991, soon after the Moscow
    coup, President Bush had called for cooperation on defenses. A
    month later, Soviet President Gorbachev announced his support
    for discussions on such cooperation, a direction given greater
    weight when, in January 1992, President Yeltsin proposed joint
    United States-Russian cooperation on a ``global protective
    system.''
        Focusing on the effort to ensure that the dissolution of
    the Soviet Union remained peaceful, joint decisions on defense
    cooperation awaited the Moscow Summit of June 1992, which
    created a group of experts to discuss cooperation on early
    warning, cooperation on technologies, nonproliferation and the
    legal basis for a Global Protection System, the United States
    having adopted the name proposed by the Russians.
        During those discussions, I presented the U.S. case for an
    amended ABM Treaty, proposals that were subsequently presented
    in greater detail in the Standing Consultative Commission.
        The U.S. view was that circumstances had changed and that
    an opportunity now presented itself for creating a security
    relationship more suitable to friends. Central to this new
    relationship was exploring cooperation in protecting both of
    our populations from attack, rather than collaborating to
    maximize their vulnerability to mass destruction.
        Cooperation on early warning, missile defense and
    nonproliferation seemed preferable to a preoccupation with mass
    destruction rhetoric that would inevitably poison our political
    relations. This did not involve the abandonment of deterrents
    or the abolition of nuclear forces.
        Instead, this approach was designed to promote
    nonproliferation and enhance security and stability by
    defending against small attacks, whatever the source.
        In addition to the radical geopolitical changes taking
    place, technological advances had blurred distinctions between
    ABM systems on the one hand and early warning, command and
    control, air defense missiles and theater ballistic missile
    defenses on the other hand.
        Advances in technology had already vastly complicated the
    clarity of categories and confidence in compliance. Yet many of
    the systems now in tension with the ABM Treaty were for other
    vital missions not ABM related.
        In particular, because sensors are so important to early
    warning, national technical means of verification, and
    conventional forces, we proposed that sensors run free, that we
    agree not to make them an issue between our two countries.
        The United States also proposed more extensive ABM
    deployments than those permitted by the ABM Treaty as
    originally signed in 1972.
        Russia has 100 interceptors deployed around Moscow, but the
    original treaty permitted 200 at two sites and additional
    interceptors at several additional test sites.
        The United States offered to forego a decision on space-
    based interceptors in the context of an agreement to increase
    the number of ground-based interceptors to cover the entire
    United States to a planned level of effectiveness. Russia could
    do the same.
        In short, the American position held that the ABM Treaty
    was broken, but the United States was prepared to fix it in the
    context of changes that would increase the security of both
    countries and others.
        Given that threats already emerging were beyond the control
    of either Russia or the United States, we were not prepared to
    let considerations of the ABM Treaty ultimately require us to
    sacrifice our security and that of our allies and friends,
    including Russia, who might be threatened by ballistic
    missiles.
        Likewise, we sought the broadest cooperation and were
    prepared to negotiate restraints, but we would not permit a
    veto over necessary deployments.
        Mr. Chairman, admittedly, this is a cursory coverage of
    what are very complex issues. I have written on this and spoken
    on this many times over the years.
        There are two statements that I gave extemporaneously that
    were subsequently punished that I might offer for the record,
    if you wish, in which you----
        Senator Biden. Published?
        Secretary Lehman. What is that?
        Senator Biden. Did you say punished or published?
        Secretary Lehman. Published. Did I say punished?
        Senator Biden. Oh, you said punished. Freudian slip.
        Secretary Lehman. It is hard to punish.
        They were subsequently published and as remarks that took
    place in those times, so you can get a little flavor for what
    was actually happening at the time. And I offer these for the
    record, if you wish.
        Senator Hagel. We will include those in the record.
        [The material referred to follows Secretary Lehman's
    prepared statement.]
        Secretary Lehman. Then, Mr. Chairman, I will conclude my
    remarks at that point.
        Thank you.
        Senator Hagel. Mr. Lehman, Thank you.
        [The prepared statement of Secretary Lehman follows:]
                  Prepared Statement of Hon. Ronald F. Lehman
        Mr. Chairman, Distinguished Members of the Committee on Foreign
    Relations:
        I am honored that you have asked me to appear again before this
    Committee to exchange ideas. I wish also to thank you for your kindness
    in accommodating my schedule. Up front, let me make clear that these
    are strictly my own views. I do not speak for any other person or for
    any organization, program, or Administration with which I have been or
    am now associated.
        You have asked for my thoughts on the interaction of arms control
    and ballistic missile defense including some elaboration of how we have
    tried in the past to enhance the relationship. Today, the importance of
    this issue is every bit as significant as it was during the Cold War
    and a vast literature on the subject exists. In general, the public
    debate for and against ballistic missile defenses, like that on arms
    control itself, has experienced much oversimplification over the years
    by both advocates and opponents. Given the complexities involved, it
    should not be surprising that there have been considerable differences
    among thoughtful experts as well. Nevertheless, uncertainty has been
    reduced and trends are becoming ever more clear.
        The spread of ballistic missiles has been more rapid than had been
    widely understood. In this age of globalization and increased
    cooperation among proliferant states, the missile capabilities of many
    states--both potential aggressors and those who feel increasingly
    threatened--is growing. Likewise, the technologies which are at the
    heart of ballistic missile defense--technologies such as high
    performance computing, microelectronics, and sensors--are also
    advancing rapidly, bringing with them the prospect of more effective
    defensive systems especially for advanced, post-industrial states.
        Even in the areas of military doctrine, deterrence theory, and arms
    control policy--areas in which the residual heat of past debates most
    often distorts a clearer vision of the future--greater convergence can
    be detected. Indeed, support for ballistic missile defenses has always
    existed in some measure across party lines and left and right across
    the ideological spectrum. The passage of the National Missile Defense
    Act of 1999 gives hope, but not certainty, that a new consensus may be
    possible.
        A process of determining afresh the enduring principles and new
    realities of arms control and ballistic missile defense is needed. The
    hearings being held by this Committee are an important step in that
    process. Much has changed, but some of the basics have not changed.
    Both arms control and ballistic missile defense must be seen in the
    context of broader national goals and national security strategies.
        Even within the realm of countering ballistic missile threats, arms
    control and ballistic missile defenses are themselves additional tools,
    but not the only tools for enhancing our security. These tools must be
    integrated with our military forces and doctrine, our technological and
    industrial prowess, our diplomacy, and other components of a
    multifaceted effort to enhance the nation's security.
        Properly integrated, arms control, ballistic missile defenses, and
    the other tools at our disposal all together result in a strategy for
    which the total is greater than the sum of its parts. Unfortunately,
    incomplete, disjointed, and unbalanced approaches can have the opposite
    result. Bringing all of the parts together effectively is not easy
    given the complexities among and within nations.
        There is much that can be said about all of this, but in the
    interest of providing time for discussion let me highlight several key
    judgments:

              (1) Ballistic missile defenses--both strategic and theater--
            can significantly enhance deterrence and crisis stability,
            increase our military capabilities, protect allies, friends,
            and coalitions, strengthen nonproliferation, support our
            diplomacy, improve the conditions for peace in troubled
            regions, and expand the prospects for effective arms control
            and reductions.
              (2) The proper balance between offensive and defensive
            capabilities shifts over time, but the most significant, near
            term capabilities missing from our current national security
            arsenal are defenses against ballistic missiles.
              (3) Missile defenses do not substitute for a multifaceted
            national security strategy, but, neither does even the most
            effective multifaceted strategy eliminate the need for
            deployment of missile defenses in today's world.
              (4) Ballistic missile defenses do not eliminate the need for
            a continuum of military forces, both nuclear and conventional,
            but they can enhance global and regional deterrence and support
            our military forces in combat.
              (5) Deployment of significant ballistic missile defenses is
            inevitable; but it is not at all inevitable that they will be
            deployed in time to meet the needs of the United States and its
            allies and friends.
              (6) The key to a timely deployment decision remains the early
            demonstration of success, which in turn requires meaningful
            program objectives and modern management with dynamic
            exploitation of technology and competition.
              (7) That deployments will take longer and cost more than is
            necessary may result from divisions within the policy community
            over the proper role of missile defenses, but the most
            immediate constraints appear to be those which deny
            technologists the ability to demonstrate the best that is
            feasible.
              (8) The U.S. should develop its ballistic missile programs
            primarily to address its own requirements and time frames, but
            a better way to proceed is cooperatively with Russia, Israel,
            Japan, and others, recognizing that specific needs, urgency,
            and feasibility differ among nations and that cooperation on
            early warning and other theater defenses may be equally vital
            to many nations.
              (9) Appropriate treaties, agreements, and joint efforts on
            offensive and/or defensive arms can enhance security and
            complement the deployment of missile defenses, but failure to
            adjust to the changed realities that necessitate the deployment
            of ballistic missile defenses may ultimately prove to be the
            greatest threat to existing and future arms control agreements
            as well as to our security.
              (10) An inability to exploit ballistic missile defenses for a
            more cooperative approach to international security may deny
            the United States opportunities for leadership and tension
            reduction and may perpetuate the corrosive political effects of
            international relationships too often rhetorically defined in
            terms of mass mutual hostages.

        Obviously, not everyone favors the deployment of ballistic missile
    defenses. A serious discussion of the issues will be necessary to
    broaden support, and a more vigorous marketplace of ideas will help
    insure that the gains are maximized and costs minimized. Because such a
    process must adapt to a world in uncertain transition, I would be
    skeptical of any offers of a single, true path. Nevertheless, I believe
    it would be useful to remind everyone that windows of opportunity do
    open, although sometimes not clearly and not for long. The situation as
    it played out in 1992 offers a number of insights.
        With the breakup of the Soviet Union, the Cold War began to wind
    down leaving behind many legacy issues with which we are still dealing.
    The political changes suggested opportunities for Russia and the United
    States to work together to build a stronger, safer basis for their
    common security. Each recognized that the world had changed
    dramatically, yet each was uncertain how much cooperation would be
    possible and how much of the old relationship would or should remain.
    As interactions with Russia improved, and as both sides cut back on
    their military preoccupation with the other, the United States modified
    its planned ballistic missile defenses and, interestingly, Russia
    showed greater interest in cooperating on ballistic missile defense. At
    the same time, the two nations continued with the most comprehensive
    arms control accomplishments ever achieved.\1\
    ---------------------------------------------------------------------------
        \1\ During the period in which the Cold War was waning and the
    United States was moving toward deployment of ballistic missile
    defenses, the Strategic Arms Reduction Treaty and Protocol (START I),
    the U.S./Russian Joint Understanding and START II Treaty eliminating
    multiple-warhead land-based missiles were signed. Agreements with the
    Soviet Union were concluded on the Prevention of Dangerous Military
    Activities; on a Bilateral Verification Experiment and Data Exchange
    Related to the Prohibition of Chemical Weapons; on Destruction and Non-
    production of Chemical Weapons; and on Implementing Trial Verification
    and Stability Measures of the Treaty on the Reduction and Limitation of
    Strategic Offensive Arms. The verification Protocols to the Threshold
    Test Ban Treaty and the Peaceful Nuclear Explosions Treaty were also
    signed and the Treaties ratified during this period. Multilateral
    agreements completed include the Treaty on Conventional Armed Forces in
    Europe (CFE); the 1991 and 1992 Vienna Agreements on Confidence- and
    Security-Building Measures (CSBMs); the Treaty on the Final Settlement
    with Respect to Germany; the Open Skies Treaty, and Chemical Weapons
    Convention (CWC).
    ---------------------------------------------------------------------------
        In September of 1991, soon after the Moscow Coup, President Bush
    had called for cooperation on defenses. A month later, Soviet President
    Gorbachev announced his support for discussions on such cooperation, a
    direction given greater weight when, in January of 1992, President
    Yeltsin proposed joint U.S.-Russian cooperation on a ``global
    protective system.''
        Focusing on the effort to ensure that the dissolution of the Soviet
    Union remained peaceful, joint decisions on defense cooperation awaited
    the Moscow Summit of June, 1992, which created a group of experts to
    discuss cooperation on early warning, cooperation on technologies,
    nonproliferation, and the legal basis for a Global Protection System,
    the U.S. having adopted the name proposed by the Russians. During those
    discussions, I presented the U.S. case for an amended ABM Treaty,
    proposals that were subsequently presented in greater detail in the
    Standing Consultative Commission.
        The U.S. view was that circumstances had changed and that an
    opportunity now presented itself for creating a security relationship
    more suitable to friends. Central to this new relationship was
    exploring cooperation in protecting both of our populations from
    attack, rather than collaborating to maximize their vulnerability to
    mass destruction. Cooperation on early warning, missile defense, and
    nonproliferation seemed preferable to a preoccupation with mass
    destruction rhetoric that would inevitably poison our political
    relations. This did not involve the abandonment of deterrence or the
    abolition of nuclear forces. Instead, this approach was designed to
    promote nonproliferation and enhance security and stability by
    defending against small attacks, whatever the source.
        In addition to the radical geopolitical changes taking place,
    technological advances had blurred distinctions between ABM systems on
    the one hand and early warning, command and control, air defense
    missiles, and theater ballistic missile defenses on the other hand.
    Advances in technology had already vastly complicated the clarity of
    categories and confidence in compliance. Yet many of the systems now in
    tension with the ABM Treaty were for other vital missions not ABM
    related. In particular, because sensors are so important to early
    warning, national technical means of verification, and conventional
    forces, we proposed that sensors run free--that we agree not to make
    them an issue between our two countries.
        The United States also proposed more extensive ABM deployments than
    those permitted by the ABM Treaty as originally signed in 1972. Russia
    has 100 interceptors deployed around Moscow, but the original treaty
    permitted 200 at two sites and additional interceptors at several
    additional test sites. The United States offered to forego a decision
    on space based interceptors in the context of an agreement to increase
    the number of ground based interceptors to cover the entire United
    States to a planned level of effectiveness. Russia could do the same.
        In short, the American position held that the ABM Treaty was
    broken, but the U.S. was prepared to fix it in the context of changes
    that would increase the security of both countries and others. Given
    that threats already emerging were beyond the control of either Russia
    or the United States, we were not prepared to let considerations of the
    ABM Treaty ultimately require us to sacrifice our security and that of
    allies and friends, including Russia, who might be threatened by
    ballistic missiles. Likewise, we sought the broadest cooperation and
    were prepared to negotiate restraints, but we would not permit a veto
    over necessary deployments.
        Mr. Chairman, admittedly, this is a very cursory discussion of a
    complex subject, and I have had time to address briefly only one
    historic example of how the United States has proposed to harmonize
    arms control and ballistic missile defenses in the interest of
    international security. Elsewhere, I have discussed these issues in
    greater detail. If you wish, I would be prepared to submit for the
    record two publications that contain statements I made in 1992 and 1996
    elaborating on exactly the questions you have asked me to address
    today.
        Again, I welcome this opportunity to explore with the Committee in
    greater detail exactly why deployment of ballistic missile defenses has
    become necessary to:

            Enhance deterrence and crisis stability,
            Increase our military capabilities,
            Protect allies, friends, and coalitions,
            Strengthen nonproliferation,
            Support U.S. diplomacy,
            Improve the conditions for peace in troubled regions, and
            Expand the prospects for effective arms control and reductions.
        Thank you, Mr. Chairman.
                                     ______

                    [Remarks, November 1992, published 1993]

                               Changing Realities

                             (Ronald F. Lehman II)

        The development of a consensus for a strategic defense initiative
    (SDI) is at the cutting edge of national security, foreign policy, and
    arms control strategy. This is a time when we need to be probing and
    engaging some of the difficult issues that we have faced over the
    years. This article highlights where we have been going and discusses
    specific events that have been taking place with respect to developing
    a concept for defenses against ballistic missile attack.
        Truly, the world is in transition. We are entering the post-cold
    war era. Increasingly we have seen not only our foreign policy and
    national security strategy move away from preoccupation with the East-
    West military balance, but also we have seen this occur in arms
    control. The coup attempt in Moscow in August 1991 in many ways
    encapsulated and symbolized those trends. The coup's failure was
    another sign that the cold war was over and the traditional military
    threat to NATO in Western Europe was diminishing rapidly. And now, we
    have the possibility of entering into a new world in which we may be
    cooperating with the countries of Eastern Europe, and subsequently with
    the countries that have emerged out of the Soviet Union, to enhance our
    security, prosperity, and freedom together.
        This has had a tremendous impact on how we think about arms
    control. Before the August 1991 coup attempt, we looked at Soviet
    military forces in terms of the traditional threat, and we had just
    completed what some call a ``traditional arms control treaty''--START
    (Strategic Arms Reduction Treaty). At that time, there was intense
    concern over the question of accidental or unauthorized launch of
    ballistic missiles, and a preoccupation with the question of the
    nonproliferation implications of the turmoil in Eurasia.
                  soviet dissolution raises security concerns
        When the Soviet Union began to break up, we were faced with a
    serious nonproliferation question: what happens when a nuclear weapons
    state breaks up? Does that portend the emergence of additional nuclear
    weapons states and, if so, what are the implications for our security?
        We also saw another aspect of the problem. In the turmoil caused by
    the Soviet breakup, we were increasingly concerned over the control of
    nuclear weapons, technologies, and material, including fissile
    material. We were concerned about the future of scientists, engineers,
    and technicians, who might find, in the economic and political
    difficulties they were experiencing in their own countries, an
    opportunity to go abroad and become involved in the development of
    nuclear, biological, chemical, or ballistic missile programs in other
    countries that posed a proliferation threat. We quickly began to
    address these issues with the former republics of the Soviet Union,
    particularly with Russia, Ukraine, Kazakhstan, and Belarus. We made
    significant efforts to prevent proliferation overall, both through
    export control and political policy.
        Another effort dealt with the question of the traditional arms
    control agreements as we had known them. For example, we all think of
    START as dealing with offensive force reductions, but we took that
    agreement and turned it into an important tool for nonproliferation. In
    the context of the Lisbon Protocol, we were able to get agreement from
    the three former republics, other than Russia, which have nuclear
    weapons on their territory, to become non-nuclear weapon states under
    the Non-proliferation Treaty (NPT). The Treaty on Conventional Armed
    Forces in Europe (CFE), likewise, was turned from a treaty to deal with
    offensive ground threats to NATO in the NATO/Warsaw Pact context into a
    regional security structure. The treaty helped bring stability through
    the reallocation of conventional forces within the former Soviet Union.
        One area of cooperation that has not received much attention, but
    which has important arms control dimensions, is U.S.-Russian
    cooperation in ballistic missile defenses. President Mikhail Gorbachev
    first talked about the possibility of cooperating in the area of early
    warning in 1991. The United States had clearly stated for a number of
    years, in the defense and space negotiations, in the Standing
    Consultative Commission, and in all of our bilateral dealings with the
    Soviet Union, that we saw an increased need for strategic ballistic
    missile defenses. We saw the possibility of moving to a better, safer
    world with greater reliance on defenses. We said we intended to do that
    when the programs were available that would provide for that enhanced
    security. However, we also always said we were prepared to consider a
    cooperative approach, a cooperative transition.
        From the outset of our negotiations with the Soviet Union in the
    mid-1980s on strategic defenses, it was very difficult to find common
    ground between our two countries. Now, in the post-cold war period, we
    have the tremendous potential for developing common ground. In January
    1992, President Boris Yeltsin talked about U.S.-Russian cooperation in
    a global protection system. We viewed that as a very important step,
    and we have sought to engage Russia to develop this concept, one that
    deals not only with our two countries, but also with our NATO allies
    and other allies and friends around the world.
        As we have elaborated our own system for limited defenses--known as
    ``Global Protection Against Limited Strikes'' (GPALS) and consisting of
    a number of approaches to interceptors, both anti-tactical ballistic
    missiles (ATBMs), ground-based anti-ballistic missile (ABM)
    interceptors and eventually space-based interceptors (SBIs), and a wide
    variety of sensors, we have seen that there are increased areas where
    we could cooperate. For example, we could cooperate in national
    ballistic missile defense programs, and in the end many nations of the
    world would gain the benefit of this technology for enhancing their
    security as well as ours.
                            security talks underway
        We have begun to engage Russia on this issue. The instrumental step
    was taken at the June 1992 Summit in Washington when Presidents George
    Bush and Boris Yeltsin agreed to begin a process through high-level
    discussions to develop a cooperative approach to a Global Protection
    System (GPS), highlighting not only early warning and cooperation in
    the development of the technologies, but also establishing the legal
    basis for GPS. This means that the question of the legal basis for such
    a system has to take into account the 1972 Anti-Ballistic Missile (ABM)
    Treaty.
        The U.S.-Russian high-level group established by the two presidents
    met in July and September 1992. That group is known informally as the
    Ross-Mamedov Group. The two delegations established working groups to
    deal with the overall GPS concept, with technical cooperation, and with
    nonproliferation. The United States and Russia are also discussing the
    legal basis for GPS.
        The relationship between the ABM Treaty and the legal basis for GPS
    has to be viewed in light of changing circumstances, particularly since
    the ABM Treaty was negotiated in 1972. The great debates over offense/
    defense relationships have been transformed by those developments.
    Whereas, in earlier periods we spent much time debating overall
    strategic stability and the question of the offense/defense
    relationship, in today's cooperative world we are looking at limited
    ballistic missile defense systems to deal with limited threats.
        The U.S. concept for its GPALS system, which would contribute to an
    overall GPS, is a limited system. What are the implications of the ABM
    Treaty for a limited system? Over the years, largely because the United
    States deactivated its own ABM system, which was deployed for only a
    very short period, the impression has been left that the ABM Treaty
    bans ABM interceptors and ABM systems. In fact, it permits them. The
    ABM Treaty, as signed in 1972, actually permitted 200 interceptors in
    addition to test and training launchers. As a result of the 1974
    Protocol to the ABM Treaty, that number of permitted interceptors was
    reduced to 100 at one deployed site, with a number of additional
    launchers at test ranges. Russia has ABM interceptors deployed around
    the Moscow area. Therefore, the treaty, as originally concluded in
    1972, provided for additional numbers of ABM interceptors, exceeding
    the number presently deployed by Russia and well above those of the
    United States, because we have none.
        The ABM Treaty approached defenses from the point of view of
    managing limited systems. It also had a broader philosophical basis,
    dealing with the question of area defenses, protecting retaliatory
    capability. There was a fear that ABM systems might deny the
    retaliatory capability of either of the two sides, which could be
    destabilizing. However, in the new cooperative era of today, we believe
    the time has come to look at the ABM Treaty from the point of view of
    cooperating in the protection of our citizens, rather than
    collaborating to maximize their vulnerability. The ABM Treaty has to
    reflect this new political reality.
        That is not to say that only the political reality is changing. The
    technical reality has been changing as well. Increasingly it has become
    more difficult to distinguish between surface-to-air missiles (SAMs)
    against aircraft and anti-tactical ballistic missiles (ATBMs) and ABM
    systems. Many of the SAM systems deployed today have certain
    characteristics that would have thrilled ABM designers in the 1960s.
    Technology is making it more difficult to distinguish between
    interceptors' roles that once were believed to be clear cut. The same
    is true for sensors. Modern electronics, communications, and sensor
    technology make it more difficult to say what does and what does not
    have an ABM capability.
        A related issue illustrates how difficult this has become: the
    controversy over the Krasnoyarsk large phased-array radar. We were
    dealing with large phased-array radars in the ABM Treaty, saying they
    should be on the periphery of national territory and oriented outward
    to minimize their utility as ABM radars. The existence of the
    Krasnoyarsk radar complicated the consideration of this issue, but it
    was simple compared to the kinds of issues that will emerge when you
    have modern data links of the type that exist today, which have already
    begun to raise questions of compliance.
                      multilateral world increases threats
        In addition to changes in technologies, and changes and
    distinctions between interceptors and sensors, there are changes that
    result from the political upheavals taking place. For example, in the
    republics of the former Soviet Union, one finds that the former Soviet
    ABM system is now spread among a number of independent sovereign
    countries. The interceptors are in Russia, but not all the testing
    sites, nor all development facilities, nor all the sensors. Indeed, not
    all ABM facilities are even in the Commonwealth of Independent States.
    Thus, we have been talking about the ABM Treaty as a bilateral treaty
    existing in what is increasingly becoming a multilateral world. This
    introduces additional complications. On the other hand, when you look
    at the Global Protection System, which will ultimately develop in a
    multilateral way, there are certain realities that can be seen
    unfolding in the context of the ABM Treaty.
        The bottom line really is that the ABM Treaty has to evolve to take
    into account technical and political changes if it is to continue to be
    of use to the United States, Russia, and the rest of the world. It has
    to take into account the need, with the new proliferation threats, to
    protect our citizens. How can it do that? From our point of view, it
    has to permit the deployment of our GPALS system. That means it would
    have to address a number of issues:
        First is the question of deployments. The United States does not
    have any deployed ABMs, but the ABM Treaty as originally signed would
    have permitted 200 interceptors as well as 15 additional launchers at
    test sites. Our GPALS would be several times that size in ground-based
    interceptors, and we envisage space-based interceptors in the future.
    We have to address those issues. However, to get there, we would have
    to develop the systems and test them, and right now we have difficulty
    with the ABM Treaty because it puts constraints on our testing program.
    We need relief from the treaty so that we and others can, as part of
    our efforts to move ahead and provide protection to our citizens, do
    the testing required.
        ABM Treaty relief involves the question of sensors. Many of the
    compliance issues of the ABM Treaty have to do with the very difficult
    issue of knowing what is or is not an ABM sensor. The time has come to
    address this question in light of the newly cooperative world. We also
    need to ensure that there are no doubts that the ABM Treaty does not
    cover ATBM systems. And we need to ensure that ATBM systems are not
    constrained or delayed because of debates over whether they are or are
    not ABM systems. Finally, we also need to deal with the question of
    technology transfer, because the ABM Treaty is a bilateral treaty and
    it prohibits the transfer of ABM technology to other states. This
    creates a fundamental tension with the concept of a cooperative global
    protection system that involves a number of countries.
        In summary, the time has come to cooperate in protecting our
    citizens rather than collaborating in maximizing their vulnerability.
    This is the reality of the new world. The technologies exist that would
    permit us to do this, but under the ABM Treaty those technologies are
    constrained and the process can be delayed. We need relief from those
    constraints. Like our other arms control agreements, the ABM Treaty
    needs to evolve to reflect new realities if it is to continue.
        We must always remember that arms control is an important policy
    tool, indeed a tool we must use in our interests and the interests of
    our friends around the world, including our new friends. However, we
    have to use arms control effectively, and that means it has to be
    flexible enough to accommodate the realities of the new world.

                                     ______

         [Proceedings, Carnegie Endowment, Seminar--February 14, 1996]

     START II, Missile Non-Proliferation, and Missile Defense--The Offense-
                     Defense Relationship: Past and Future

                 (Remarks by the Honorable Ronald F. Lehman II)

        As one who participated in the START negotiating process from
    beginning to end. I am pleased to join with so many of you, both from
    the United States and Russia, who helped make these historic agreements
    possible. I see many familiar faces, but it is perhaps just as
    important that I see so many new faces.
        The negotiation of the START treaties took place not so many years
    ago, but most of the original cast of these dramas has moved on to new
    roles and others have taken their place. Unlike the quick action taken
    on the INF Treaty, the entry into force of the START treaties was not
    immediate. During many months of rapid change, this delay has
    introduced to the contemporary stage a significant number of new
    players. For that reason, I would like to concentrate my remarks less
    on the debates in their current style than on the ideas which inspired
    us in the past and the visions we had then of the future. My assigned
    task of looking at the relationship of strategic offensive and
    defensive weapons systems in the context both of further arms
    reductions and of the proliferation of weapons of mass destruction is
    actually facilitated by this distance from the current debate.
                    the early history of offense and defense
        Just as arms control is inseparable from national security, so
    offense and defense are inseparable in the consideration of military
    strategy. This has always been so. Throughout the history of warfare,
    one can see periods in which tactics or technology favored the offense
    or favored the defense, but some optimal mix evolved in each era.
    Offensive action could apply force for political gain, but it could
    also be used for defense or for retribution against aggression.
    Defenses could blunt an attack, but adopting defensive positions on
    part of the battle front was also a means for both aggressor and victim
    to concentrate their forces elsewhere. Along with this economy of force
    role, defenses also provided early warning and attack assessment as
    each sought to stage decisive action on its own terms.
        Even in the age of great fortifications, when the defense was said
    to be dominant, defensive operations served primarily to delay,
    dissipate, and channel an attack to a time and location where the
    advancing forces would be at a disadvantage. The successful defenders
    of great castles may have, on a few occasions, actually engaged in
    little combat from behind the protection of their ramparts before a
    siege was lifted. Ultimately, however, they had to sally forth to
    reclaim their land after exhaustion, attrition, or fear of diminished
    prospects for victory had caused the attacker to fall back on its own
    defenses. Indeed, aggression abroad was not often risked without secure
    fortifications at home.
        This is not to say that the balance between offense and defense has
    no bearing on the likelihood and intensity of war. It does. During the
    age of the great fortified cities in Europe warfare was still frequent,
    but usually limited and highly ritualized with rules of engagement
    which minimized casualties. As trench warfare demonstrated in World War
    I, however, increased use of defensive tactics did not always mean that
    the loss of life was minimized. Likewise, in the world's military
    histories, bold offensive action is as much associated with limited
    casualties as it is with massive slaughter and long periods of peace
    were associated with powerful empires which tolerated no resistance.
        In short, strong defenses could be both stabilizing and essential
    to sound military doctrine, but the price of war was determined more by
    the causes of conflict, the character of man, and the correlation of
    forces than by the mere preference of offense or defense dominance.
    And, finally, although defensive action always played some role, the
    offense or threat of it brought hostilities to an end. This ``spirit of
    the offense'' came to dominate military thinking in the age of
    Clausewitz. As technology has made weapons more and more destructive,
    this concept of war as an extension of rational political competition
    was frequently combined with a more pacific notion that weapons had
    become so horrible that rational war could not be contemplated. Nobel's
    dynamite, artillery, the machine gun, the submarine, the Zeppelin, the
    airplane, poison gas, however, all proved insufficiently horrible to
    guarantee peace.
        This reflection of the extension of violence as the heart of
    warfare rather than as the basis for peace has inspired many
    commentators to prefer defense dominance, indeed, to advocate worlds in
    which all states would have a minimum of offensive force relative to
    the defenses of their neighbors. In some cases, this distinction
    between offensive and defensive force has been carried over into
    distinctions among weapons. One can read of armies that went to war
    with only swords. One does not read of armies going to war with only
    shields. One can understand a logic for peace in which the former would
    be banned and the latter become a safeguard against aggression.
        The necessary distinction, however, has not stood the test of time
    for a number of reasons. Certainly, few defensive weapons have no
    offensive capability. The soldier with only a shield may sling it at
    his enemy or use it as a bludgeon. Infantrymen even distinguish between
    offensive and defensive hand grenades (actually, the offensive grenade
    has less shrapnel because it is used by troops moving in the open
    against troops confined in bunkers and foxholes). Second, defensive
    arms like defense itself serve to complement the offense. Thus,
    traditional military strategy has also required a mix of weapons which
    were either predominantly offensive or defensive.
        The coming of the thermonuclear age reopened this debate once more.
    Early on, fear of the society-destroying capability of nuclear weapons
    led to great investments in air defenses to defeat aircraft armed with
    nuclear weapons. Defensive interceptors themselves were even armed with
    nuclear weapons. Early declaratory nuclear policies stressed damage
    limitation, but defenses against ballistic missiles fell well behind
    the accumulation of huge arsenals of nuclear warheads on the
    intercontinental ballistic missiles of the superpowers although perhaps
    not behind those of lesser nuclear powers such as China. The absence of
    large-scale defenses in the face of overwhelming offensive nuclear
    capability highlighted the ultimate vulnerability of both sides. The
    expense of nation-wide defenses to counter such large threats and the
    certainty that they would not be leak proof increased pressures to
    limit offensive arms. In this content, the United States and the Soviet
    Union began their negotiations on strategic arms limitations (SALT).
        The centerpiece of the SALT I package in 1972, however, was the
    Anti-Ballistic Missile (ABM) Treaty, a treaty which itself limited
    defensive not offensive arms. The ABM Treaty was justified through
    argumentation that mutual vulnerability was stabilizing. Although the
    original goal of a treaty capping the growth of offensive arms was not
    achieved, an Interim Agreement on offensive arms did limit numbers of
    silo launchers, submarine launch tubes, and even ballistic missile
    submarines. It did not limit warheads, however, but the existence of
    the new ABM Treaty was said to reduce incentives to deploy more
    warheads. This incentive was sweetened when the 1974 Protocol to the
    ABM Treaty halved the number of permitted defensive interceptors and
    deployment sites and also when the United States closed its only ABM
    site a few months after it had finally become operational.
        Interestingly, during the initial SALT negotiations, it was the
    Soviet Union, far more than the United States, that questioned why one
    would want to limit defenses. And it was the United States which
    stressed linkage between the future of the ABM Treaty and further
    reductions in nuclear arms, albeit, in the opposite direction from that
    Moscow has proposed in resent years. Yet, the consequent SALT II, like
    SALT I, permitted and codified a massive increase in strategic warheads
    despite the scarcity of ABM systems and despite the emergence of large
    numbers of gray area theater nuclear weapons such as the Soviet SS-20
    Intermediate Range Ballistic Missile and the Backfire bomber.
        As NATO prepared to respond to the SS-20 with its own INF missiles,
    the West became polarized over nuclear modernization. At the risk of
    some oversimplification, one could say that one school believed that
    enough was enough whatever the Soviet Union had. The other school
    sought to redress the imbalance it perceived. The first school became
    supportive of a freeze on modernization. The second group proposed a
    dual track of modernization and the negotiations of reductions to
    enhance stability. The debate was over offensive arms. Both sides
    advocated fewer, although they disagreed on how to achieve their goal.
        At the height of the nuclear freeze movement, I participated in a
    debate in a church in San Antonio, Texas. The Speaker of the U.S. House
    of Representatives at that time, himself a Texan, had just appeared and
    announced his support for a nuclear freeze. I was a junior U.S.
    government official defending the NATO deployments against the freeze
    when my debate opponent, a retired U.S. Army major general, changed the
    subject briefly. What the world really needed, he said, was defenses
    against missiles. The audience, clearly in favor of the freeze, roared
    in approval of strategic defenses. This was some weeks before President
    Reagan announced his Strategic Defense Initiative in March, 1983. The
    freeze debate faded away as the United States revisited the question of
    the role of defenses. Political polarization did not disappear, but new
    constellations of vociferous advocates and opponents did appear
    including hawks together with doves on each side of the issue--Edward
    Teller and Freeman Dyson favoring defenses, while mainstream thinkers
    and even the uniformed military seemed split on the issue.
                           the debates in the 1980's
        The debates of the 1980s were fascinating, although initially there
    was confussion, misinformation, and rhetoric on both sides of the
    question. Sometimes there was not much clear thinking even on the
    theoretical level. Let me give you just one example, the debate over
    Mutual Assured Destruction (MAD) versus Mutual Assured Survival (MAS),
    again at the risk of oversimplification. If you took the people who
    thought they favored each of those positions, set them down, and asked
    what nuclear targeting doctrine was associated with their concept of
    defenses, the most common answer for both sides was countervalue
    targeting, or as some would say, city-busting. Absent absolutely leak
    proof defenses, both sides were still talking about populations being
    targeted with tremendous loss of life and destruction. Those who
    favored defenses were arguing, in essence, that defenses might save
    millions of lives. Those opposed to defenses favored greater certainty
    of the most massive destruction to enhance deterrence. The bottomline
    for both sides was an emphasis on the targeting of population per se.
        For much of the national security community, however, the focus was
    different. That community recognized the ultimate countervalue effects
    of a strategic nuclear exchange, but this community focused more on its
    own differences, differences concerning the impact of strategic
    defenses on the military balance and thus stability. Here most experts
    also fell into two schools. One school basically believed defenses
    favor the aggressor. Here's why: He who launches his missiles first
    will overwhelm an opponent's defense with numbers. If an aggressor
    conducts a disarming first strike against an adversary's retaliatory
    force, and the remnant of that retaliatory force then faces the alerted
    defenses of the aggressor, the aggressor has gained leverage in both
    offense and defense. Hundreds of computer runs were made based upon
    this assumption. Thus, they often concluded that even if the offense
    and defense were equal and symmetrical on both sides, defenses would be
    destabilizing.
        On the other side of this issue, experts were doing their computer
    runs. And their approach was different: ``He who shoots first in order
    to disarm has a harder targeting requirement than he who simply must
    retaliate in order to inflict unacceptable pain.'' If the initiator of
    the war must have high confidence of counterforce success in detail to
    avoid unacceptable retribution, defenses can so complicate the
    disarming first strike that under almost all calculations, they are
    stabilizing.
        In summary, the nuclear policy debate in the 1980s seemed bogged
    down in debates over perfection. The primary public debate concerned
    whether anything less than perfect defense was sufficient--that is,
    whether to defend anyone if everyone could not be defended, and against
    every threat. The primary debate among defense intellectuals was
    whether even the most imperfect defenses might encourage too much
    nuclear self confidence to be stabilizing.
                           compromise conceptualized
        In the middle of this debate, the United States was confronted by
    the Soviet Union in bilateral negotiations even as research and
    development programs were going forward. When the nuclear arms talks
    resumed in Geneva in 1985, the Soviet Union sought linkage between the
    INF issue, the START issue, and the co-called Defense and Space issue.
    The United States recognized that there were interrelationships, but
    did not want any one negotiation held hostage to another. The United
    States and the Soviet Union agreed to a format that covered both sides'
    interpretations of what the proper relationship should be. This
    resulted in odd shaped tables and strange protocols. The gist of the
    Soviet Union's position was that there could be no START Treaty unless
    the United States solved Soviet problems with INF and Defense and
    Space. Early on, we were able to agree to proceed with the lNF Treaty,
    and later we were able to work out a form of delinkage on START.
        I want to remind everyone in the room, however, that the U.S.
    position was always that everything was interrelated. The U.S. did not
    think there ought to be any formal linkage of agreements, but in fact,
    in the context of those negotiations, the Reagan Administration at
    various times had conceptualized a number of compromises across
    agreements. The U.S. position usually stressed delinkage of most
    issues, but the U.S. position sometimes included variations of the so-
    called ``grand compromise''--``you give us something on offense, and
    we'll give you something on defense.'' Sometimes, the U.S. position
    also had certain aspects of what I call the ``green light'' compromise,
    according to which the United States would not accept certain
    provisions in an offensive agreement unless is were given something
    favoring defenses. One finds examples of all of these approaches in the
    U.S. negotiating position, sometimes all at the same time.
                            gpals initiative in 1991
        New political circumstances, geopolitical agreements, and strategic
    calculations appeared rapidly at the end of the 1980s. In January 1991,
    in the context of improved relations between the United States and the
    Soviet Union, President Bush proposed a different, much more limited
    approach to strategic defenses. This lead people to rethink what would
    be needed in the post Cold War era to enhance security and still have a
    stable relationship with the then Soviet Union. President Bush proposed
    the so-called GPALS system (Global Protection Against Limited Strikes)
    which was downscaled tremendously from the Phase I Joint Chiefs of
    Staff requirements for the original Strategic Defense Initiative. Those
    requirements, at least in their original absolute numbers, had already
    been achieved by START I.
               cooperation on defenses; abm revision talks--1992
        The initiation of the GPALS program was followed by a series of
    rapid and major international developments. The completion of START I
    and a few weeks later the failed coup in Moscow suggested that
    cooperation between Washington and Moscow should be enhanced. In
    September 1991, President Bush called for cooperation on defenses. The
    United States also announced that it would be eliminating all of its
    tactical nuclear artillery and many other tactical nuclear weapons. ln
    October of 1991, President Gorbachev announced that he too believed
    cooperation on defenses should be discussed. By January of the next
    year, President Yeltsin of Russia made a bold proposal that the United
    States and Russia work together to bring about a cooperative, global
    protective system. In that same positive environment, the United States
    agreed to talk also about START II, a step Washington had believed was
    premature prior to the recent political changes. START II began to
    weigh very heavily upon everything we were doing. START II was seen as
    a way of strenthening the foundation for a cooperative future both in
    limiting offensive arms and cooperative defenses. Obviously some form
    of interrelationship would emerge, given the history of the
    negotiations and also the new opportunities for cooperation.
        In the final statement of the June 1992 Summit, Russia and the
    United States agreed that a group of experts, the so-called Ross-
    Mamedov group, would discuss cooperation on early warning, cooperation
    on technologies for defense, nonproliferation, and the legal basis for
    a Global Protection System (GPS), including any changes which might be
    necessary to retain the existing treaties, including the ABM Treaty.
    (Note that the United States had decided to adopt the Russian name, or
    GPS).
        The most important Ross-Mamedov session was probably that of
    September 1992. At that meeting, on behalf of the United States, I
    presented the case to the Russian delegation for amending the ABM
    Treaty. Ambassador Robert Joseph subsequently presented this proposal
    in its detail at the Standing Consultative Commission. The U.S. view
    was that circumstances have changed, politically and technologically,
    and that we now have an opportunity for a new relationship. An
    important part of this relationship is rethinking the question of
    whether we should begin cooperating In defending both of our
    populations, rather than collaborating to maximize their vulnerability.
    We talked about what we thought needed to be done about early warning,
    technology cooperation, and nonproliferation. We accepted and
    emphasized a multifaceted approach to the problem.
        We made clear that defenses would play an important role in thc
    future, and we made specific proposals to amend the ABM Treaty. We
    proposed that it permit more than the 200 interceptors that were
    permitted by the original ABM Treaty. As I highlighted in my remarks at
    the time, the ABM Treaty does not ban defenses. In fact, it explicitly
    provides, as signed in 1972, for 200 interceptors, plus additional test
    sites. Thus, in its original form it already envisioned as many as
    perhaps four or more places where a country might have interceptors,
    although only two of those were to be operational deployment sites.
        We talked about the changes in technology which made it
    increasingly difficult to maintain distinctions between early warning,
    command and control, surface-to-air missiles and theater ATBMs on the
    one hand and similar ABM systems on the other hand. We stressed the
    need to look at the whole--at what a BMD system really is. The
    inevitable increase in the capabilities of non-ABM systems was feeding
    ever more contentious debates over distinctions that were also very
    difficult to verify. The electronics revolution is radically altering
    the meaning of many of the boundaries sought by the ABM Treaty. This
    led the United States to propose that sensors run free--that we would
    agree that with respect to sensors, since they're so important for so
    may vital functions such as early warning, national technical means of
    verification, and conventional forces, not to make them an issue
    between us.
        With respect to numbers, of course we had a position proposing
    several hundred ground based interceptors. I should note that Russia
    has 100 interceptors already while the United States has none. The
    United States was willing to forego a decision on the question of
    space-based interceptors, if we achieved an agreement for near term
    ground-based systems along our line of several hundred--maybe six,
    seven, eight hundred--not that far from the Russian number which was
    100 and not far from the 200 permitted by the ABM Treaty in 1972. So in
    a sense, we were haggling about the numbers, although we had in mind a
    certain level of effectiveness that we wanted to achieve by the
    technologies that we had available. That level of effectiveness seemed
    compatible also with the Russian concept of a Global Protective System.
        Discussion of amending the ABM Treaty was complicated also by the
    changes in the political circumstances of that time. One signatory to
    the bilateral treaty, the Soviet Union was gone, and the existing ABM
    system of the former Soviet Union no longer was solely within the
    sovereign bounds of a single country. There were a series of basic
    fixes to the ABM Treaty that we thought would be necessary to make it
    viable and effective, and our position was that we were prepared to do
    this, in the context of getting an agreement on defenses that was in
    the interest of both sides. This history demonstrates that the United
    States did engage very specifically on how to work together with Russia
    in the context of the ABM Treaty. Circumstances had changed. The ABM
    Treaty was broken, but the United States was prepared to agree to fix
    it if in the context of cooperation on defenses.
       defenses and further offensive reductions: the legacy of reykjavik
        Permit me now to jump to the future. Increasingly, as we approach
    the millennium, in the context of the NFI extension, we are hearing
    more and more about attempting to go to zero nuclear warheads, or to
    very low numbers. And emerging again and again in the debate, and not
    on a partisan or ideological basis, is the view that you cannot go to
    deep reductions without defenses. This was actually one of the key
    issues at Reykjavik, and what the debate over what was proposed at
    Reykjavik was really all about.
        We have already given much thought about the offense-defense
    relationship, but we need to get beyond frozen positions. I have tried
    to give you a sense of some of the key initiatives from the past which
    were designed to get us beyond stalemate. Today, as we try to go beyond
    linear thinking about how you safely move towards further reductions,
    traditional patterns of partisan politics and ideological splits are
    starting to fragment. So, perhaps it would be a good idea if everyone
    engaged on the issue of the offense-defense relationship revisit the
    question through a fresh process. We should revisit our assumptions,
    determine the real constants and variables for our age, and think anew.
    To do that, we will have to put aside our current mindsets, our current
    coalitions, and our current interest groups to determine if there isn't
    a path which brings us together.
                        current trends: four assertions
        With this discussion of past and future as a foundation, let me
    turn to the question of the present just briefly. It isn't my primary
    focus, but I want to make four assertions about the present in reaction
    to what I have heard here and in Moscow recently. These are four
    assertions you can accept or reject.
        First, if it were left to the U.S. and Russian military, START II
    would have entered into force already.
        Second, if available material resources, i.e., budgets, were
    comparable on both sides, the ABM Treaty would not be as big an issue
    as it is today. There is actually a strong latent view within Russia
    that it ought to have defenses against ballistic missiles. In fact,
    they do. They have 100 ABM interceptors.
        Third, unfortunately--and I hope not increasingly, many of the
    issues that are being raised about START II and the ABM Treaty are
    really being used as vehicles for expressing uncertainty about the geo-
    strategic future, uncertainty about where we, the United States and
    Russia, are in our relationship to each other. This includes also
    uncertainty about where we think we ought to be. We need to answer the
    question of what it means to say the Cold War is over.
        Fourth, the substantive uncertainties about the ABM Treaty or START
    II are really being greatly amplified by contextual uncertainties, most
    of them of a domestic political nature. We have important new or
    reinvented players in Washington and Moscow. Some of them know these
    issues well, but many do not. There is a tendency to see many decisions
    made on the basis of a simple interrogation: ``If my domestic opponent
    is in favor of it, I must be against it,'' or vice versa. We have a
    similar problem on the international front to which I alluded earlier;
    namely, that whatever you think of the arguments on their merits, the
    legacy of the ABM Treaty and the legacy of Cold War deterrence debate
    are giving us vocabulary that is not always helpful, as we try to
    discuss a proper U.S.-Soviet relationship. In a way, our very words,
    including words I've used today such as a ``mutual hostage
    relationship,'' poison the water. We need fresh language reflecting our
    real objectives, language which doesn't carry so much baggage.
        We're experiencing manifestations of the ``Ifft rule.'' Ed Ifft is
    famous for saying, ``it's not that our positions are different, its
    that they're the same at different times.'' Some believe that this is a
    description of a fickle or frivolous basis for negotiations. I don't
    interpret the rule that way. Rather, it reflects the reality that as
    circumstances change, what we should do can change.
        If you go back to the mid-1980s, for example, the Soviet Union put
    out many feelers to see if we would be willing to settle the ABM
    dispute by agreeing to 200 ground based interceptors--or 300, or 400.
    And it was in the United States that voices said, ``Wait a minute,
    we'll never get an environmental impact statement through. Our future
    is in space. This is a Soviet trap to get us to try to deploy some
    missiles that we can't deploy politically while they build a large
    ground based system. We will lose.'' Our positions have been the same
    at different times, but there remains in the domestic debate today in
    Russia and the United States, the Cold War remnant of, ``if it's good
    for the other side, it must be bad for us.'' Again, we need to find a
    way to break out of that mindset.
                              start ii compromises
        When I first became active in arms control negotiations, the one
    fundamental rule about domestic politics was that you never took a
    treaty to Capitol Hill in election year. But in 1987, we broke the
    rule. It wasn't all that easy, but it wasn't all that hard. We got the
    INF Treaty ratified. Here we are again, in a much more difficult world,
    in the middle of an election year in Russia as well as in the United
    States. And friends of mine in Russia say to me, ``Well the problem is
    that START II was negotiated from weakness, and our side gave too much
    to you.'' I remember it a little differently, however. In fact, I
    remember how much we gave to the Russian side that would have been
    unthinkable in previous years. I think about the separate SLBM limit
    that we'd never agreed to before, the bomber counting rules which
    reversed a fundamental U.S. approach to stability. I think of the
    intrusive inspection of bomber bases and special limits on bombers, and
    how, again and again, on issues like the SS-19, silos dismantlement,
    and simplified verification we allowed issues to be reopened in order
    to address Russian concerns.
        We used to say there could not be further reductions until after
    START I had entered into force and after vast new improvements in
    verification were achieved. Instead, at Russian insistence, we agreed
    to act almost instantaneously on START II and, basically, to use the
    START I verification rules. It was in the interests of both countries
    for us to exhibit this flexibility, but these concessions, or
    compromises, or flexibility by the United States, would not have taken
    place in fact, if the situation had not changed in Russia. If the
    previous regime had been in power in Moscow, we probably never would
    have shown that flexibility. There probably would not have been a START
    II Treaty.
        So, when you think about the START II Treaty, remember that the
    United States was actually very forthcming. We thought it was important
    to a new, better relationship. And if we were wrong, that's going to
    have tremendous impact at home and abroad. Yes, Russia is having an
    electon, but so is the United States. In this election year, both sides
    need to be very, very careful. To our Russia colleagues, I would say
    don't ask our president to go to the Congress and to look as if he's
    cutting deals with a foreign government blocking the aspirations of the
    elected officials of the United States. The Congress expects the
    president to come to them and to work out a united U.S. position. The
    Congress expects him to work together during negotiation of that
    position. Neither Russia nor the United States will gain from an end
    run of their own political processes. At a minimum, there must be a
    very close consultative process.
                                recommendations
        What is my recommendation? I think we need to do some rethinking in
    a less polarized way that brings all the player, including some new
    players, to this process. There are certain things that our countries
    have agreed already to do. Let's do them. START II is, I think,
    essential. If we want to keep our relationship on track, moving in the
    right direction, START II must enter into force. We can and should,
    however, commit to a fresh look at the questions related to offenses
    and defenses. This probably ought to be done after both countries'
    elections.
        This new process probably ought not be a negotiation initially, or
    a formal government-to-government process by itself. It may require a
    Track II process, and it should have a certain number of legislators
    from the United States and Russia. An informal process--perhaps
    initially off the record and anonymous--is necessary. Opinion leaders
    with diverse views must rethink these questions of what we mean by
    ``the end of the Cold War'' and what we should do about offense and
    defense after the Cold War. How do we think about balancing weapons if
    the Cold War is really over, and how do we get beyond that? If we can't
    do that, we're in for trouble.
                                  a prediction
        Now, let me make one prediction about the future. My own view is
    that further defenses will be deployed. They're already deployed in
    Russia. They will be deployed in the United States. Putting together
    the coalition necessary will take longer than advocates recommend, and
    this will continue to result in greater development costs. The
    operational system itself, however, will inevitably cost less, not more
    than has long been assumed. National missile defense will cost less
    than what many people think because smaller threats are of increasing
    urgency and because dual-use technologies which leverage defense are
    advancing. The world of electronics is going in a direction that drives
    many defense associated costs down.
        The decision to deploy nationwide defenses, however, will not be
    made in Moscow or Washington based upon an accountant's estimate of
    affordability. It will be made when citizens demand that they be
    defended. The event that will probably cause this to happen may not
    even have anything to do with Russia, and it may not be based on an
    initial threat against the United States. It may well be that theater
    ballistic missiles, armed with a weapon of mass destruction, strikes
    someone else's forces or cities. The world will suddenly change the way
    it evaluates this equation. Much of the current debate will be washed
    aside by the force of events.
        Defenses are not an alternative to a multifaceted approach
    including reductions, nonproliferation, and controlling smuggling, but
    my own assessment is that we will be living for some time in a world in
    which a multifaceted approach is not a substitute for defenses against
    ballistic missiles. I believe that a new look undertaken without the
    blinders of past political divisions will reveal that cooperating in
    defending the people of Russia and the United States against ballistic
    missiles will be seen as necessary for the security of both and a
    powerful foundation upon which to build a more viably arms control and
    non-proliferation regime.

        Senator Hagel. General Habiger.

      STATEMENT OF GENERAL EUGENE E. HABIGER, FORMER COMMANDER IN
                CHIEF, U.S. STRATEGIC COMMAND, OMAHA, NE

        General Habiger. Mr. Chairman, Senator Biden, thank you
    very much for the opportunity to come to speak before this
    committee.
        First, let me tell you that in the 10 months that it has
    been since I furled my flag and put on this civilian suit, my
    views have not changed materially in this area.
        The most significant change in my views has to do with the
    deployment of the missile defense system.
        I was always under the inclination that we needed the
    system. It was not a matter of if we needed it but when we
    needed it. But based upon the publication of the Rumsfeld
    report since I retired, it has turned up certainly the wick in
    my view that we ought to deploy that system sooner rather than
    later.
        I would like to make two points, if I could, sir. First,
    regarding the cold war and the series of situations that we
    have got ourselves into now as a result of that cold war and
    how it ended: The cold war was a unique war. It lasted over 40
    years. We had never experienced a conflict that lasted nearly
    that long.
        And the loser really did not lose. If you look at what we
    did to the Germans after World War I, what we did to the
    Germans and Japanese after World War II, we essentially
    demilitarized them.
        After the cold war ended, we essentially let the Russians
    stay at their current--at then current nuclear levels of about
    12,000 nuclear weapons.
        So what we had at the end of the cold war was essentially
    two eight-foot-tall boxers fully primed to beat the living
    daylights out of each other, and they agreed to stand down.
        Now, we have been on a very stable glide path with arms
    control agreements to get down to new levels of nuclear
    weapons, which is the right thing to do.
        Hopefully, the Russians will, at some point in the not-too-
    distant future, ratify START II, and we can get on with START
    III. And I will tell you the Russians are very interested in
    getting down to START IV levels.
        The Russians have done the math, and they understand that
    when you get to the START IV levels, whatever those levels are
    going to be, it then must become a multilateral effort rather
    than a bilateral effort, and that is going to be a much more
    difficult situation.
        With my experience with the Russians and the confidence
    building over the past several years. I began my contacts with
    the Russians back in 1992 when the chief of staff of the
    Russian Air Force, came to Texas where I was stationed. I got
    to know him very well.
        The Russian military folks at the senior levels are very
    professional. They are very serious about what they are doing.
        They are also very paranoid about both our military
    capabilities, and our technological capabilities. And if we
    were to go out and walk away from the ABM Treaty, we would do
    great harm in my view.
        I agree with what Secretary Lehman said about pursuing
    initiatives with the Russians. I think there is great potential
    in this area.
        The next point I would make, and my final point, is that we
    will in fact need a ballistic missile defense system. But it
    appears to me that we are myopic in our thinking if we assume
    that it has to be a national system.
        If you look back at how we have treated our allies, the
    English, the Germans, the Japanese, I think we ought to--as
    Secretary Lehman just described, be looking at more of a global
    defensive system.
        I have every confidence the Russians would step up to that
    kind of an approach, and would also position us to not only
    look at the three or four rogue nations that we see on the
    horizon today, but the potential for other nations in the
    future.
        For example--I am not saying that India is a rogue nation,
    but they are rapidly pursuing a capability. Pakistanis are
    producing the capability. And--and who is to say that 50 years
    from now that we might have to look to--to the south against
    potential nations with these kinds of capabilities?
        So, sir, it is with that that I make my opening statement.
    I look forward to your questions.
        Thank you.
        Senator Hagel. General, thank you.
        Dr. Payne.

        STATEMENT OF DR. KEITH PAYNE, PRESIDENT AND DIRECTOR OF
      RESEARCH, NATIONAL INSTITUTE FOR PUBLIC POLICY; AND ADJUNCT
            PROFESSOR, GEORGETOWN UNIVERSITY, WASHINGTON, DC

        Dr. Payne. Thank you, Mr. Chairman. It is a pleasure and a
    great honor to be here, particularly serving with these
    esteemed colleagues at the table.
        I would like to summarize my opening statement and submit
    the full statement for the record.
        Senator Hagel. It will be included.
        Dr. Payne. Thank you.
        Mr. Chairman, I have spent several years closely examining
    the Senate record to identify the rationale for the ABM Treaty
    as it was presented to the Senate in 1972.
        And it is on the basis of that study that one can conclude
    that the treaty was built on particular arms control and
    deterrence theories circa 1972.
        Now, 27 years later it is clear that those theories were
    thoroughly mistaken. Many are reluctant to acknowledge these
    mistakes, perhaps because so much political and intellectual
    capital has been invested in the ABM Treaty. Some are not
    reluctant. But we should cease being influenced by theories
    that have so little validity.
        The ABM Treaty, for example, was ratified on the premise
    that strictly limiting national missile defense would lead to
    stabilizing offensive force reductions.
        Arms control theory at the time posited that if national
    missile defense was limited, reductions in Soviet ICBM's would
    be forthcoming because the Soviet Union would not need to
    penetrate U.S. defenses and, therefore, could agree to
    reductions.
        In short, the theory was: No ABM Treaty, no offensive force
    reductions. But with the ABM Treaty, stabilizing offensive
    force reductions.
        While seeking the Senate's advice and consent on the ABM
    Treaty, Nixon administration officials were specific about this
    expected benefit of limiting national missile defense. Indeed,
    it became the primary justification for the treaty.
        For example, in 1972, Henry Kissinger testified before the
    Senate that, and I quote, ``As long as the ABM Treaty lasts,
    offensive missile forces have, in effect, a free ride to their
    targets.''
        That free ride for Soviet missiles was considered useful as
    a necessary basis for negotiating offensive arms reductions.
        Unfortunately, the expected benefit never was realized. In
    fact, history unfolded in the opposite direction. For two
    decades following the ABM Treaty, the Soviet Union pursued a
    massive buildup of destabilizing ICBM's capable of threatening
    U.S. strategic deterrent forces.
        To be specific, the number of such deployed Soviet ICBM's
    increased from 308 in 1972 to over 650 16 years later, with a
    related increase in the number of Soviet countersilo warheads
    from--from roughly 300 to well over 5,000. As a result, U.S.
    ICBM's became vulnerable to a Soviet preemptive strike.
        The Scowcroft Commission, on which Ambassador Woolsey
    served, for example, judged U.S. ICBM silos to be vulnerable in
    1983 as a result of this Soviet offensive buildup.
        This Soviet buildup was precisely what arms control theory
    predicted the ABM Treaty would preclude. It was entirely
    contrary to the confident expectations that justified the
    treaty. Such a confounding of expectations was predicted at the
    time by very few prescient critics of the ABM Treaty.
        Other related arms control claims for the ABM Treaty
    similarly went unrealized. For example, during the Senate
    hearings in 1972, senior officials claimed that the treaty
    reflected Soviet acceptance of the U.S. concept of mutual
    deterrence through mutual vulnerability.
        The validity of that claim for the ABM Treaty was important
    because it meant that neither side would seek to upset the
    supposed deterrence balance established by the treaty.
        Now, however, former senior Soviet officials have explained
    repeatedly and at length that the ABM Treaty did not reflect
    Soviet acceptance of our notions of deterrence through mutual
    vulnerability. Far from it.
        For the Soviet Union, the ABM Treaty represented a tactical
    move to derail U.S. superiority in missile defense technology
    and to permit the Soviet Union to concentrate its resources on
    its strategic offensive buildup.
        That is not my interpretation. That is the testimony of
    senior Soviet officials.
        In complete contradiction to arms control theory, the ABM
    Treaty appears actually to have facilitated the Soviet
    offensive missile buildup of the seventies and the eighties
    that led to the vulnerability of our retaliatory forces.
        The optimistic expectations used to justify the ABM Treaty
    went unmet. I believe because the U.S. arms control theory
    ultimately was based on ``mirror-imaging,'' it mistakenly
    attributed U.S. goals and hopes to the Soviet Union.
        Ironically, when Boris Yeltsin finally endorsed START
    offensive reductions in 1992, he simultaneously proposed U.S.-
    Russian cooperation on a global ballistic missile defense
    system. That is, President Yeltsin proposed that offensive
    reductions and missile defense move forward together.
        And even now, key members of the Russian Duma publicly and
    privately advocate cooperating with Washington on limited NMD
    deployment as the route necessary to preserve the START
    process.
        In short, with 27 years of hindsight, it is now possible to
    conclude, based on abundant empirical evidence, that the arms
    control theory underlying the ABM Treaty was mistaken at its
    foundation.
        The deterrence theory underlying the ABM Treaty was
    similarly mistaken. The deterrence argument justifying the
    treaty in 1972 was that mutual deterrence would provide
    reliable protection against missile attack, while missile
    defense would undermine deterrence and not protect adequately.
    Therefore, so the argument concluded, the United States should
    focus on mutual deterrence as the preferred alternative to
    national missile defense.
        This line of reasoning was prevalent during the original
    Senate ABM Treaty hearings and remains a commonly expressed
    view.
        It was plausible in 1972. To repeat it now reflects a
    complete lack of familiarity with almost two decades of
    scholarly research concerning deterrence.
        I can summarize those findings in one sentence: Deterrence
    is inherently unreliable for reasons that cannot humanly be
    fixed.
        Many U.S. officials and commentators continue to assert
    otherwise. They typically express confidence that the absence
    of a third world war proves that deterrence can be made
    reliable.
        Perhaps, it is enough to note in response to such hubris
    that similar confidence in deterrence became popular during the
    decades of peace following the Franco-Prussian War in 1871.
    Unfortunately, such confidence came to a quick end with the
    outbreak of World War I in the summer of 1914.
        I have closely examined actual historical cases of
    deterrence and coercion over the course of many years--in fact,
    going back 2,000 years.
        My findings and those of similar empirical studies are that
    deterrence fails with some frequency because flesh and blood
    leaders do not consistently behave in the manner required by
    deterrence theory.
        Unlike the leaders typically assumed in theory, real
    leaders can be uninformed and misinformed, isolated and out-of-
    touch. They can make terrible mistakes. They can behave
    willfully, foolishly, emotionally, unpredictably, unreasonably
    and even irrationally.
        They may not prefer a conflict, but they may see no
    acceptable alternative; or they may have goals for which they
    are willing to lead their societies into great sacrifice and
    great risk.
        Unfortunately, there are no earthly developments that can
    reliably prevent these very real and very human factors from
    undermining deterrence. And we should recognize this danger.
        We were, for example, very fortunate to have made it
    through the cold war, a conclusion now shared by former U.S.
    officials who were involved in the 1962 Cuban missile crisis
    and have had the opportunity to compare notes with their Cuban
    and Russian counterparts.
        The finding that a strategy of deterrence is inherently
    unreliable does not mean that deterrence is useless. Far from
    it.
        But it does suggest strongly that to choose to remain
    vulnerable to countries such as North Korea, on the basis of
    confidence in deterrence, would be to thoroughly misunderstand
    what deterrence can and cannot accomplish.
        In conclusion, the ABM Treaty was built on arms control and
    deterrence theories that now can be demonstrated empirically to
    be mistaken.
        The ABM Treaty did not facilitate the promised offensive
    force reductions. And contrary to all comforting assurances,
    deterrence is inherently unreliable. Its functioning cannot be
    ensured or even predicted with any confidence. Serious
    empirical research on the subject allows no other conclusion.
        I believe that this fact alone, in light of the pace of
    proliferation, argues strongly for NMD deployment if the
    necessary technology is available.
        Thank you, Mr. Chairman.
        Senator Hagel. Dr. Payne, thank you.
        [The prepared statement of Dr. Payne follows:]
                    Prepared Statement of Dr. Keith B. Payne
                                  introduction
        It is a great honor to address here two questions crucial to
    consideration of national missile defense (NMD): First, how valid is
    the arms control theory underlying the 1972 ABM Treaty?; and, second,
    is the mutual vulnerability approach to deterrence in the U.S. national
    interest?
        The ABM Treaty was built on particular arms control and deterrence
    theories. It now is clear that those theories were thoroughly mistaken.
    Many are reluctant to acknowledge these flaws, perhaps because so much
    political and intellectual capital has been invested in the ABM Treaty.
    But we should cease being influenced by theories that have so little
    validity.
                     the abm treaty and arms control theory
        The ABM Treaty, for example, was ratified on the premise that
    strictly limiting NMD would lead to ``stabilizing'' offensive force
    reductions. Arms control theory at the time posited that if NMD was
    limited, reductions in Soviet ICBMs would be forthcoming because the
    Soviet Union would not need to penetrate U.S. defenses and therefore
    could agree to reductions. In short, the theory was: no ABM Treaty, no
    offensive force limitations; with the ABM Treaty, ``stabilizing''
    offensive force reductions.
        While seeking the Senate's advice and consent for the ABM Treaty.
    Nixon administration officials were specific about this expected
    benefit of limiting NMD; indeed, it became the primary justification
    for the treaty. For example, in 1972 Henry Kissinger testified before
    the Senate that, ``As long as [the ABM Treaty] lasts, offensive missile
    forces have, in effect, a free ride to their targets.'' \1\ This ``free
    ride'' for Soviet missiles was considered useful as the necessary basis
    for negotiating offensive arms reductions. Unfortunately, the expected
    benefit never was realized; in fact, history unfolded in the opposite
    direction.
    ---------------------------------------------------------------------------
        \1\ Military Implication of the Treaty on the Limitations of Anti-
    Ballistic Missile Systems and the Interim Agreement on Limitation of
    Strategic Offensive Arms, Hearing Before the Committee on Armed Forces,
    United States Senate, 92nd Congress, 2nd Session (Washington, D.C.:
    U.S. GPO, 1972), P. 121.
    ---------------------------------------------------------------------------
        For the two decades following the ABM Treaty, the Soviet Union
    pursued a massive buildup of ``destabilizing'' ICBMs capable of
    threatening U.S. strategic deterrent forces. To be specific, the number
    of such deployed Soviet ICBMs increased from 308 in 1972 to over 650
    sixteen years later, with a related increase in the number of Soviet
    countersilo warheads from roughly 300 to well over 5,000. \2\ As a
    result, U.S. ICBMs became vulnerable to a Soviet pre-emptive strike.
    The ``Scowcroft Commission,'' for example, judged U.S. ICBM silos to be
    vulnerable by 1983 as a result of this Soviet offensive buildup: ``The
    Soviets nevertheless now probably possess the necessary combination of
    ICBM numbers, reliability, accuracy, and warhead yield to destroy
    almost all of the 1,047 U.S. ICBM silos, using only a portion of their
    own ICBM force.'' \3\
    ---------------------------------------------------------------------------
        \2\ These statistics concerning Soviet strategic weapons are found
    in John Collins and Bernard Victory, U.S/Soviet Military Balance,
    Statistical Trends, 1980-1987, Report No. 88-425 S (Washington, D.C.:
    Congressional Research Service, April 15, 1988); and John Collins and
    Patrick Cronin, U.S./Soviet Military Balance, Assessments and
    Statistic, Report No. 85-89 S (Washington, D.C.: Congressional Research
    Service, Spring 1985).
        \3\ See Report of the President's Commission on Strategic Forces
    (the Scowcroft Report) (Washington, D.C.: April 6, 1983), p. 4.
    ---------------------------------------------------------------------------
        This Soviet buildup was precisely what arms control theory
    predicted the ABM Treaty would preclude; it was entirely contrary to
    the confident expectations that justified the treaty. Such a
    confounding of expectations was predicted at the time by very few
    prescient critics of the ABM Treaty.\4\
    ---------------------------------------------------------------------------
        \4\ Several participants in the SALT I process were accurate in
    their relatively pessimistic estimates of what would occur over the
    next fifteen years. See, for example, William Van Cleave's testimony in
    Military Implications, pp. 569-92. See also, Don Brennan, ``When the
    SALT Hit the Fan,'' National Review, June 1972, pp. 685-92; and Mark
    Schneider, ``Problems of SALT: 1972,'' Survive, July/August 1972, pp.
    2-6.
    ---------------------------------------------------------------------------
        Other related arms control claims for the ABM Treaty similarly went
    unrealized. For example, during Senate hearings in 1972 senior
    officials claimed that the treaty reflected Soviet acceptance of the
    U.S. concept of mutual deterrence through mutual vulnerability. As
    Secretary of State William Rogers stated before the Senate: ``This [ABM
    Treaty] is a general undertaking of utmost significance. Without a
    nationwide ABM defense, there can be no shield against retaliation.
    Both nuclear powers have recognized, and in effect agreed to maintain
    nuclear deterrence.'' \5\ The validity of this claim was critical for
    the ABM Treaty because it meant that neither side would seek to upset
    the supposed deterrence balance established by the treaty.
    ---------------------------------------------------------------------------
        \5\ Secretary of State William Rogers, Statement to Senate Foreign
    Relations Committee, June 19, 1972, quoted in, SALT I Reconsidered
    (Washington, D.C.: Institute of American Relations, 1979), p. 99.
    ---------------------------------------------------------------------------
        Former senior Soviet officials, however, have since explained
    repeatedly and at length that the ABM Treaty did not reflect Soviet
    acceptance of U.S. notions of deterrence and mutual vulnerability. Far
    from it. For the Soviet Union, the ABM Treaty represented a tactical
    move to derail U.S. superiority in missile defense technology and to
    permit the Soviet Union to concentrate its resources on its strategic
    offensive buildup.\6\ In complete contradiction to arms control theory,
    the ABM Treaty appears to have facilitated the Soviet offensive missile
    buildup of the 1970s and 1980s.
    ---------------------------------------------------------------------------
        \6\ See, for example, the discussion in, William E. Odom, The
    Collapse of the Soviet Military (New Haven: Yale University Press,
    1998), pp. 71, 436.
    ---------------------------------------------------------------------------
        The optimistic expectations used to justify the ABM Treaty went
    unmet, I believe, because U.S. arms control theory ultimately was based
    on ``mirror-imaging''; it mistakenly attributed U.S. goals and hopes to
    the Soviet Union.
        Ironically, when Boris Yeltsin finally endorsed START offensive
    reductions in 1992, he simultaneously proposed U.S.-Russian cooperation
    on a global ballistic missile defense system. That is, President
    Yeltsin proposed that offensive reductions and missile defense move
    forward together. And, even now, key members of the Duma advocate
    cooperating with Washington on limited NMD deployment as the route
    necessary to preserve the START process.\7\ With twenty-seven years of
    hindsight, it now is possible to conclude, based on abundant empirical
    evidence, that the arms control theory underlying the ABM Treaty was
    mistaken at its foundation.
    ---------------------------------------------------------------------------
        \7\ See, ``Duma Member Alexei Arbatov on Joint NMD,'' Russian Arms
    Control Digest, No. 36 (April 13, 1999). See also, ``Duma Advisors
    Advocate Russian Accommodation on ABM Treaty to Preserve Some NMD
    Limits and START Process,'' Russian Arms Control Digest, No. 39 (April
    26, 1999).
    ---------------------------------------------------------------------------
                      the abm treaty and deterrence theory
        The deterrence theory underlying the ABM Treaty is similarly
    mistaken. The deterrence argument justifying the treaty in 1972 was
    that mutual deterrence would provide reliable protection against
    missile attack, while missile defense would undermine deterrence and
    not protect adequately. Therefore, so the argument concluded, the U.S.
    should focus on mutual deterrence as the preferred alternative to NMD.
        This line of reasoning was prevalent during the original Senate ABM
    Treaty hearings and remains a commonly-expressed view. Unfortunately,
    it reflects a complete lack of familiarity with almost two decades of
    scholarly research concerning deterrence. I can summarize those
    findings in one sentence: deterrence is inherently unreliable for
    reasons that cannot humanly be ``fixed.''
        Many U.S. officials and commentators continue to assert otherwise.
    They typically express the notion that the absence of a Third World War
    proves that deterrence can be made reliable. For example, in 1995,
    then-Assistant Secretary of Defense for International Security Affairs,
    Joseph Nye said that ``if deterrence prevented 10,000 Soviet missiles
    from reaching the United States, it baffles me as to why it wouldn't
    prevent 20 Chinese missiles from reaching Alaska.'' \8\
    ---------------------------------------------------------------------------
        \8\ ``Word for Word,'' Defense News, October 23-29, p. 26.
    ---------------------------------------------------------------------------
        Then-Principal Deputy Undersecretary of Defense for Policy, Jan
    Lodal made the same point in even more definitive terms: ``Nuclear
    deterrence worked throughout the Cold War, it continues to work now, it
    will work into the future . . . The exact same kinds of nuclear
    deterrence calculations that have always worked will continue to
    work.'' \9\
    ---------------------------------------------------------------------------
        \9\ Jan Lodal and Ashton Carter, News Conference Transcript, July
    31, 1995. (mimeo).
    ---------------------------------------------------------------------------
        When discussing U.S. nuclear weapons then-Deputy Secretary of
    Defense John Deutch stated in congressional testimony that,
    ``Deterrence is ensured by having a survivable capability to hold at
    risk what potentially hostile leaders value, and we will maintain that
    capability.'' \10\
    ---------------------------------------------------------------------------
        \10\ Testimony in U.S. House, Committee on Foreign Affairs, U.S.
    Nuclear Policy: Hearings, 103rd Cong., 2nd sess. (Washington, D.C.:
    USGPO, 1995), p. 36 (emphasis added).
    ---------------------------------------------------------------------------
        Perhaps it is enough to note in response to such statements that
    confidence in deterrence became popular during the decades of peace
    following the Franco-Prussian War of 1871. That confidence came to a
    quick end with the outbreak of World War I in the summer of 1914.
        I have closely examined numerous actual historical cases of
    deterrence and coercion occurring over the course of many centuries.
    \11\ My findings, and those of similar empirical studies, are that
    deterrence fails with some frequency because flesh and blood leaders do
    not consistently behave in the manner required by deterrence theory.
    Unlike the leaders typically assumed in theory, real leaders can be
    uninformed and misinformed, isolated and out-of-touch; they can make
    terrible mistakes, behave willfully, foolishly, emotionally,
    unpredictably, unreasonably, and even irrationally. They may not prefer
    conflict, but see no acceptable alternative; or, they may have goals
    for which they are willing to lead their societies into great wartime
    sacrifice and enormous risk.
    ---------------------------------------------------------------------------
        \11\ Some of this work is summarized in, Keith B. Payne, Deterrence
    In The Second Nuclear Age (Lexington, KY: University Press of Kentucky,
    1996).
    ---------------------------------------------------------------------------
        Unfortunately, there are no earthly developments that can reliably
    prevent these very human factors from undermining deterrence, and we
    should recognize this danger. We were, for example, very fortunate to
    have made it through the Cold War--a conclusion now shared by former
    U.S. officials who were involved in the 1962 Cuban Missile Crisis and
    have had the opportunity to compare notes with their Cuban and Russian
    counterparts.
        The finding that a strategy of deterrence is inherently unreliable
    does not mean that deterrence is useless. Far from it. But it does
    suggest strongly that to choose to remain vulnerable to countries such
    as North Korea, on the basis of confidence in deterrence, would be to
    thoroughly misunderstand what deterrence can and cannot accomplish.
                                   conclusion
        In conclusion, the ABM Treaty was built on arms control and
    deterrence theories that now can be demonstrated empirically to be
    mistaken. The ABM Treaty did not facilitate the promised offensive
    force reductions and, contrary to all comforting assurances, deterrence
    is inherently unreliable; its functioning cannot be ``ensured'' or even
    predicted with any confidence. Serious empirical research on the
    subject allows no other conclusion. In light of the pace of missile
    proliferation, this fact alone argues strongly for NMD deployment if
    the necessary technology is available.

        Senator Hagel. And once again, to all four of our
    witnesses, we are grateful.
        Now, let me introduce the ranking minority member of the
    Foreign Relations Committee, Senator Biden.
        Senator Biden. Thank you very much, Mr. Chairman.
    Gentlemen, I apologize for coming late. I am, like all of us,
    on more than one committee. And I have a Juvenile Justice bill,
    and Janet Reno is testifying before our Judiciary Committee
    downstairs. As you all well know, the Nation has been gripped
    by the violence that took place in Colorado, and that is the
    subject of our discussion, so I apologize.
        Quite frankly, nothing is of more consequence to this
    Nation and its future than what we are talking about today.
        I have an opening statement, and I would like to ask
    unanimous consent that it be placed in the record in its
    entirety, Mr. Chairman.
        Senator Hagel. It will be.
        Senator Biden. Mr. Chairman, yesterday we had the first
    hearing on the issue that we have before us today. And the
    hearing, I think it is fair to say, casts very strong doubt on
    whether the thin missile defense system proposed by the
    administration makes much sense, on whether--if we are going to
    move toward a missile defense system--this is the wisest way to
    move.
        Most of our witnesses yesterday were not prepared to
    support the proposed national missile defense system that we
    are debating in the Congress in the Cochran bill, if it were
    going to be the only system that were built; rather, the
    supporters of national missile defense favored space-based and
    sea-based systems, of a much greater capacity and capability.
        I remember that if our only concern were North Korea's
    ICBM's--and this is a question, General, that I am going to ask
    you in a bit--it seemed to some that we could move readily to
    address that threat by striking a deal with Moscow to station
    boost-phase interceptors in the Vladivostok area. Quite
    frankly, that would be the single most effective way to deal
    with the North Korean threat, and the cheapest by a longshot.
        Today's focus on the arms control value of the ABM Treaty
    is timely and, if we were to accept Dr. Payne's assertions,
    useless. Supporters of a national ballistic missile defense do
    not wish merely to guard against rogue nations and rogue
    strikes, despite the rhetoric that we--not you--use on the
    floor of the U.S. Senate.
        Rather, as Dr. Bill Graham said yesterday, they see mutual
    deterrence as either a useless or an immoral strategy and argue
    that we should just straight out abandon the ABM Treaty.
        And the reason I respect Mr. Woolsey's comments is that he
    has not fooled around with this. He just thinks we should flat
    out get rid of the ABM Treaty and move on.
        Today, we can address the question of whether the half
    century of missile defense has produced a good result. Dr.
    Payne concludes it has not.
        Part of the problem is that we would not be building our
    missile defense system in a vacuum here. We are not starting
    from scratch. Despite the end of the cold war, as General
    Habiger has pointed out, there are still thousands of nuclear
    weapons in Russian hands.
        It remains in our vital interest to manage our
    relationship, it seems to me, with Russia, so that neither side
    ever feels compelled to--to use those weapons. And one of the
    best ways to further reduce the danger of a nuclear war with
    Russia is to continue the process, regardless of how it came
    about, of strategic arms reductions. I suspect we would all
    think that it is useful for us, that it is in our interest,
    that the Russians reduce the number of nuclear weapons they
    have in their possession.
        Whether it is through the START process or any other
    process, we need to ensure that Russia finally ratifies, if we
    are going to stay the course now, START II and that we move
    quickly to START III. We need to be able to get to a START IV
    if, in fact, such a treaty makes sense, assuming the underlying
    proposition is correct, that it is in our interests that the
    Russians--not a particularly stable government at this moment,
    and the Lord only knows where they will be 10 years from now--
    have fewer weapons, particularly MIRV'ed weapons, at the end of
    the day.
        It seems to me we also have to continue working with Russia
    on such nonproliferation concerns as control and disposition of
    fissile material, avoiding a Russian nuclear brain drain, and
    stopping Russian assistance to other countries' nuclear or
    long-range missile programs.
        All those efforts, I think, will be put at risk--and one of
    the questions I want to ask is whether you think those efforts
    are meaningful and necessary, and likely to be put at risk--by
    abrogation of the ABM Treaty, were we to decide to do that? For
    many in the Senate share Mr. Woolsey's view that we should
    abrogate the treaty.
        Dr. Payne may be right regarding the fallibility of
    deterrence, although I suspect you are not, Doctor. I would
    wonder, however, whether your study of 2000 years shows that
    those human factors you cited were any more or less relevant to
    the defensive systems of the other side.
        I think you have stated a universal truth that applies not
    only to deterrence, but to defensive systems as well. Some
    supporters of a national ballistic missile defense system
    understand these risks. Dr. Schlesinger told this committee 2
    weeks ago: ``We should not casually damage our political
    relationship with Russian in a way that simultaneously would
    damage Russian prestige and make Russians less cooperative with
    us.''
        And he was referring to many of the things I mentioned, the
    things that you have been working on, Secretary Lehman, the
    non-proliferation issues that you know so well.
        When we get to the questions, which we are going to do in
    about 10 seconds, Mr. Chairman, I would like to be able to have
    a discussion when I ask some questions. I would like to invite
    everyone to get involved in it. Especially when we have so few
    members here, it is a useful thing, at least for me and I
    suspect also for the chairman, if you all take on one another
    when you disagree. Mind you, I am not trying to start a fight.
        But you are a very knowledgeable panel; and to the extent
    that you may disagree with each other, it would be useful for
    us to understand those differences. It would enlighten us a
    little bit.
        So let me conclude by saying that as I have sort of peeled
    back the onion here, it seems to me that at its root, the real
    debate here is not about a thin missile defense system. Rather,
    it is about whether or not we have a true national missile
    defense system and the degree to which that impacts on our
    relationships with the one outfit that still has a whole hell
    of a lot of those big old missiles. For we are talking about
    only three, four, five, seven, eight missiles that North Korea
    may build--that might make it across the ocean, that probably
    can make it to Hawaii but we are not sure--but we know there
    are thousands that we have a high degree of confidence can make
    it from Russian soil to United States soil.
        You know, the chairman and I have worked a lot on matters
    in the Balkans and on NATO. And we were both told of an
    incident--I will not reveal the source, but it is fascinating:
        I asked one of our negotiators on the NATO strategic
    doctrine question, ``What kind of progress are you making with
    the French?''
        And he said, ``Well, we are making some good progress.''
    But he said, ``The other day, my French counterpart looked at
    me and said, `Yes, yes, it works in practice. But will it work
    in theory?' ''
        Now allegedly, that was actually said. So, Dr. Payne, I
    want to know about practice, not theory.
        Dr. Payne. All right.
        Senator Biden. And if we were back in 1972, a guy like me
    might reach a different conclusion than I may be willing to
    reach about such a system in 1999, in light of the state of the
    world being very different today.
        And so I am looking for practice, not just theory here. But
    I am not suggesting any of you are only talking about theory.
    So hopefully, we can have a discussion.
        I thank you for allowing me to make a statement, Mr.
    Chairman, and I yield back the floor.
        Senator Hagel. Senator Biden, thank you.
        [The prepared statement of Senator Biden follows:]
               Prepared Statement of Senator Joseph R. Biden, Jr.
        Thank you, Mr. Chairman. Thank you especially for chairing todays
    hearing with a witness who is well known to you--General Eugene
    Habiger, former Commander-in-Chief of U.S. Strategic Command. General
    Habiger was one of the Pentagon's finest strategic thinkers, and I
    think we will all benefit from his insights.
        Actually, I look forward to hearing from all of today's witnesses.
    Both Jim Woolsey and Keith Payne have studied the Russian leadership.
    All of our witnesses, therefore, can speak to whether Russian officials
    are merely posturing when they warn against abrogating the ABM Treaty.
    All our witnesses can address the risk that U.S. action to deploy a
    national missile defense might sacrifice START II and future strategic
    arms reductions, and condemn us to face MIRV'ed ICBM's for decades to
    come.
        These questions will be crucial to the decision on whether to
    deploy a national missile defense by 2005. To put this hearing into
    context, the administration says that it will base its deployment
    decision on four criteria:

              (1) whether a threat exists to the United States;
              (2) the cost-effectiveness of missile defenses;
              (3) whether the necessary technology exists to build a
            defensive system; and
              (4) whether the benefits of deploying that system outweigh
            any possible negative effects it might have on U.S.-Russian
            relations.

        The administration clearly recognizes that a missile threat exists
    and will fund a very limited, National Missile Defense system. But the
    jury is still out when it comes to the administration's final two
    criteria, both of which were supported by the Senate in the amended
    Cochran bill.
        In my view, yesterday's hearing cast strong doubt on the
    proposition that those criteria can be met in the near term. While our
    panel of technical experts differed in their basic views on missile
    defense, they all agreed that a limited ballistic missile defense
    system would have to deal with ever more sophisticated countermeasures.
    In addition, they all understood that the proposed National Missile
    Defense is a ``high-risk'' program.
        Most of our witnesses yesterday were not prepared to support the
    proposed National Missile Defense system if that were the only system
    to be built. Rather, the supporters of national missile defense favored
    space-based and sea-based systems with much greater capabilities. If
    our only concern were North Korean ICBM's, we could more readily
    address that threat by striking a deal with Moscow to station a boost-
    phase intercept system near Vladivostok, or on military cargo ships off
    the coast there.
        Today's focus on the arms control value of the ABM Treaty is thus
    most timely. Supporters of a national ballistic missile defense do not
    wish merely to guard against rogue-state missiles, despite the rhetoric
    of the last year on that issue. Rather, like Dr. Bill Graham yesterday,
    they see mutual deterrence as an immoral strategy--despite the fact
    that it has given us more than half a century of strategic stability
    without a single use of nuclear weapons or intercontinental missiles.
        Today we can address the question of whether a half century of U.S.
    missile defense will produce as good a result. Part of the problem is
    that we would not be building our missile defense in a vacuum. Despite
    the end of the Cold War, Russia still has thousands of nuclear weapons.
    It remains in our vital strategic interest to manage our relationship
    with Russia so that neither side ever feels compelled to use those
    weapons.
        One of the best ways to further reduce the danger of nuclear war
    with Russia is to continue the strategic arms reduction process--the
    START process. We need to ensure that Russia finally ratifies START II,
    either by itself or in combination with a START III treaty that reduces
    the strategic arms burden for both our countries. I am hard put to see
    how that can be done, unless we conform any national missile defense we
    may build to an amended ABM Treaty.
        We must also continue working with Russia on such non-proliferation
    concerns as: the control and disposition of fissile material; avoiding
    a Russian nuclear ``brain drain;'' and stopping Russian assistance to
    other countries' nuclear or long-range missile programs. All of those
    efforts will be put at risk if Russia perceives the United States as
    building missile defenses to make it safe to use nuclear weapons
    without fear of retaliation.
        Some supporters of a national ballistic missile defense understand
    these risks. As Jim Schlesinger told this Committee two weeks ago, ``we
    should not casually damage our political relationship with Russia in a
    way that simultaneously would damage . . . Russian prestige and make
    the Russians less cooperative with us.''
        I share Secretary Schlesinger's concern to maintain that
    relationship with Russia, and I look forward to hearing the views of
    the witnesses on these important topics.

        Senator Hagel. Let me get a couple of questions on the
    record for Chairman Helms before we get into some of the give
    and take that Senator Biden has suggested and that I think is a
    good way to do this.
        General Habiger, many have argued that ballistic missile
    defenses are fundamentally inconsistent with strategic arms
    reductions, but if that is the case, why does the SALT II
    Treaty explicitly call upon parties to observe the joint
    statement on a global protection system, which according to the
    treaty's article-by-article analysis relates to START II and
    the creation of a global system against ballistic missile
    attack?
        General Habiger. Interesting question. I do not see an
    inconsistency. The ABM Treaty--the deployment of ABM systems
    was almost immediately negated with the advent of multiple
    independent reentry vehicles. And that is one of the reasons
    why the Russians stopped at Moscow, and we stopped at the great
    State of North Dakota.
        The ABM Treaty and our adherence to it has given the
    Russians some--some solace that we are not going to run away
    technologically. That is a big deal for them, our technological
    advantages.
        And based upon those things, I will just stop right there,
    sir.
        Senator Hagel. Ambassador Woolsey, would you like to add
    anything to that, or Secretary Lehman?
        Ambassador Woolsey. I guess I would say that I think a
    steady state of substantial defenses and low levels of offense
    is not, even in theory or likely in practice, to be unstable.
        It seems to me what most people have historically been
    worried about is transition. One cannot deploy ballistic
    missile defenses overnight.
        And if you were in, let us say back, a cold war
    environment, say in the early eighties, when there were at some
    times very great tensions between the United States and Soviet
    Union, and you had just barely embarked on deploying defenses,
    and the other side, the Soviet Union, let us say, saw its
    deterrent being degraded year by year, month by month, then
    under those circumstances, I think, so the deterrence theory
    ran, it might be more likely in a crisis for the Soviets to use
    nuclear weapons, because they felt that over a long period of
    time their deterrent was going to be seriously degraded.
        I think--I think Keith put this right--deterrence is far
    from historically reliable, but sometimes it is useful.
        And I think deterrence in a number of circumstances during
    the cold war between the United States and the Soviet Union was
    useful, in part because the Soviet Union was most of the time a
    somewhat stodgy power.
        It was not, in a lot of circumstances, all that
    venturesome; and the people who ran it tended more to be
    bureaucrats than madmen. I think the situation could be very
    different with an Iraq or Iran or North Korea.
        But to come back to Senator Helms's question, I think that
    in a steady state and as an ultimate situation, either during
    the cold war or especially today, substantial defenses are not
    inconsistent with low levels of offense. The trick has always
    been, and particularly back during the cold war, getting from
    point A to point B.
        Senator Hagel. And before I ask Secretary Lehman to
    respond: Was not a good amount of the Bush administration's
    1992 negotiations with the Russians based on the--the
    assumption that defense was a very significant part of START
    II?
        Ambassador Woolsey. I----
        Senator Hagel. Ambassador, do you want to respond to that--
    I know Secretary Lehman does, but----
        Ambassador Woolsey. You can----
        Senator Hagel. Go ahead, Mr. Secretary.
        Secretary Lehman. Yes. In fact, both in START I and START
    II, well, going back to the SALT process, there was a very long
    series of interactions on how offense should relate to defense,
    and that is reflecting the historic reality that there has
    always been an offense/defense relationship.
        At various times in various negotiations, we sometimes
    tried to leverage the defensive negotiations by emphasizing the
    offensive; the offensive by emphasizing the defensive.
    Sometimes, we wanted to de-link them. Sometimes we wanted to
    link them. Both sides did this, depending on the circumstances.
        One of the things I am most proud of in the arms control
    field was the START II Treaty. I fought very hard to get that
    treaty. There was a time when people thought that after START
    I, there would be nothing. I think we surprised the world by
    what we achieved.
        The particular provisions that you are talking about, in
    fact, I was very actively involved in negotiating. And we made
    it very clear that it was our intent to proceed toward
    deployment of defenses and it was in that context that we were
    proceeding with START II.
        I would like to come back at some point on this broader
    question of Russian attitudes and the offense/defense
    relationship.
        But I think you had wanted me to address more specifically
    this other question of the relationship between deterrence and
    defense.
        As I said, there has always been offense/defense in
    history. And sometimes the offense plays a more predominant
    role. Sometimes the defense plays a more predominant role.
        But I have never viewed ballistic missile defenses as
    always being a substitute for or an enemy of deterrence. You
    put together a package that makes the world safer and supports
    your national security interests.
        I think there is a lot of oversimplification from both the
    advocates and opponents of ballistic missile defense on that
    relationship.
        I believe that the United States needs to maintain a strong
    deterrent, and I think that it will. But I think increasingly
    the world is such that a component of the strategy that needs
    to get greater emphasis is ballistic missile defense.
        Senator Hagel. As a Nebraska Cornhusker, I appreciate the
    difference between offense and defense.
        Thank you, Mr. Secretary.
        Dr. Payne, would you care to add anything to the question?
        Dr. Payne. Well, just the point that when President Yeltsin
    proposed the global protection system in January 1992, what he
    did was to confound all of the previous arms control theory
    that described earlier, because essentially what he said was:
    We, in Russia, will accept and actually endorse the idea of
    reducing offensive forces. At the same time, we would like to
    go forward with missile defense.
        That, in effect, was what arms control theory said could
    not happen. And that theory was what the ABM Treaty was built
    on.
        Senator Hagel. A question to each of the four of you: In
    your opinions, is it the economic pressures facing Russia today
    that is driving their strategic evaluations and policies more
    than any arms control agreements or ideas?
        Are they mixed, or how would--how would you rate the
    economic pressures on Russia as to how they are evaluating and
    implementing their defense posture policy strategies?
        Secretary Lehman.
        Secretary Lehman. There is no doubt that Russia is going
    through a very difficult economic time. And so some of the
    projections of how low Russian forces will go primarily are
    motivated by an economic analysis.
        But let me make one additional point. If Russia really
    believed the United States was a great Satan, the big enemy,
    they would find the resources and they would find a way to
    retain some level of forces.
        But, in fact, it is fact that we are engaged with them. The
    world has changed. That permits them to try to assess their
    priorities and the United States is not, I think, their great
    enemy.
        Senator Hagel. Ambassador.
        Ambassador Woolsey. Mr. Chairman, during the last 6 years,
    the Russian economy declined by most measures by at least 50
    percent, and during the deepest 6 years of the Great
    Depression, ours declined by about a third, so they have had
    more than the Great Depression and they do not look like they
    are coming out of it.
        The fact that they have not been able to pay their
    international debts and continue to have to be bailed out is
    undermining substantially any foreign investment, which is the
    only thing, I think, that is going to lead them out of the
    economic situation they are in. And so they are under very
    great fiscal stress. Their economy is now smaller than the
    Netherlands and headed down.
        But they are still finding enough resources to work on a
    new ICBM and to put the proportionately larger share of their
    military resources into their strategic nuclear programs.
        This has been combined with a shift in doctrine somewhat
    similar to that which we undertook in the Eisenhower
    administration--more bang for the buck, a shift toward heavier
    reliance on nuclear forces.
        And they clearly regard their nuclear forces as their trump
    card. In a sense, it is the only thing really that makes them a
    great power. Insofar as they are a great power at all, it is
    only because of those.
        Now, I think that they see the United States' flirtation
    with ballistic missile defenses in a very straightforward way.
    I do not think there is a lot of offense/defense theory here.
        I do not think there is a lot other than, ``If the United
    States gets these, they are going to be technologically
    substantially ahead of us and ahead of us in deployed defensive
    forces and that is bad because it is a zero sum game.''
        I think Mr. Primakov very much believes that it is a zero
    sum game and that is what is good for us is bad for Russia and
    vice versa.
        I think President Yeltsin is not necessarily of that view,
    and he certainly was not of that view in 1992.
        I think part of the difficulty here is finding a way to
    appeal to and work with those Russians--such as Yavlinsky and
    his Yabloko party, some parts of the foreign ministry,
    President Yeltsin hopefully--that might be willing to work with
    us in getting back into the mode we were in 1992.
        I do think that is preferable to our withdrawing from the
    treaty. A substantial change in the treaty negotiated with the
    Russians is something I think we should definitely try, and I
    think it is definitely preferable to withdrawing from the
    treaty.
        But at the present writing, I would see Mr. Primakov's zero
    sum attitude as the thing which is really dominating Russian
    thinking. And I think it is pretty simple and straightforward.
    They think if it is high-tech and we are doing it and they
    cannot, that is bad. Pretty much end of theory.
        Senator Hagel. Thank you.
        Dr. Payne.
        Dr. Payne. The economic pressures in Russia, particularly
    in the strategic field are enormous. I work on a fairly regular
    basis with some key members of the Duma on exactly these
    questions. Specifically, we have worked on a joint study that
    has been ongoing since 1994.
        Ambassador Vladimir Lukin, the chairman of the Duma's
    Foreign Relations Committee has participated in this study, as
    has Dr. Alexei Arbitov, the deputy chair of the Defense
    Committee of the Duma.
        So, we have some senior members of the Russian leadership
    participating in this study, looking at exactly these
    questions.
        One of the points that has been consistent over the years
    is that the Russian Federation expects that for economic
    reasons, they will have to go down to 1,500 to 2,000 weapons,
    perhaps even lower.
        Consequently, the main argument for Duma ratification of
    START II is that Russia will need to go down to those lower
    force levels for economic reasons, and they would rather the
    United States go down to those levels as well, even though the
    United States is not necessarily so constrained by economic
    pressure.
        Interestingly, most recently Alexei Arbitov, the deputy
    chair of the Defense Committee at the Duma, proposed
    cooperation with the United States on deploying limited
    national missile defense as what Russian ought to do to keep
    the START arms control process going.
        So it is not as if there is consistent and block-like
    opposition to cooperation with the United States on going
    forward with the limited national missile defense.
        There is a good deal of support in the more progressive
    circles in the Duma for moving forward with the United States,
    not on the basis of any romantic, happy-face vision of our
    relationship with Russia, but for very pragmatic pro-Russian
    reasons.
        Senator Hagel. Thank you.
        General Habiger.
        General Habiger. Yes, sir. There are two sectors of the
    Russian military that are as fully funded as you can get. That
    is their nuclear forces, which includes the 12th Directorate,
    which handles the maintenance of their nuclear weapons; and
    their special forces.
        Their nuclear forces, I think for obvious reasons, are
    fully funded, and I am including their--their Navy ballistic
    missile submarines, their bomber force as well as their ICBM
    force. Their special forces being as--about as fully funded as
    you can get just because, in my view, of concerns over internal
    control.
        I know for a fact that the--the senior Russian military
    folks have been pleading with the Duma to get on with START II,
    absolutely pleading, because they want to get on with getting
    rid of systems that are very costly to maintain.
        So while economic pressures play a very large role in what
    we are talking about, in the arena of arms control, it is
    clearly, in my view, political pressures rather than economic
    providing the primary motivation.
        If the politicians in the Duma were to vote START II and
    press on with START III, we would see some very rapid movement
    on the part of the military establishment.
        Senator Hagel. Thank you.
        Senator Biden.
        Senator Biden. Dr. Payne, I meet with those same fellows
    you mentioned and have over the last several years, and let me
    ask you a question.
        What do you think their reaction would be if, by the next
    time you interview them for your study, the President of the
    United States has announced abrogation of the ABM Treaty?
        Dr. Payne. I think we would have a very negative response.
        Senator Biden. Yes. I think so too. I think that may be the
    single greatest understatement I have heard in the last couple
    of months, at least from witnesses.
        And so it seems to me we got to figure out a way somewhere
    between the extremes. Actually, I am beginning to get worried;
    I am liking Lehman more and more every time he comes to
    testify.
        And we have been doing this--how long have we been doing
    this, Mr. Secretary? I mean, years and years and years.
        Secretary Lehman. Well, at least 20, I fear.
        Senator Biden. That is right.
        And all kidding aside, I think that, from my perspective
    anyway, Mr. Chairman, Secretary Lehman has put his finger on
    it.
        And that is, what is the mix here? What is the balance?
    There are so many overstatements made by arms controllers, as
    well as by those who think arms control is fundamentally and
    basically flawed and a bad idea.
        Do any of you disagree with the proposition that it would
    be better to amend the ABM Treaty with the Russians to
    accommodate whatever you think need be done--and that varies
    among you--than it would be to abrogate the ABM Treaty at this
    moment?
        Ambassador Woolsey. I agree with that.
        General Habiger. I agree with that, too.
        Dr. Payne. Better to amend.
        Senator Biden. Amend?
        Dr. Payne. Yes, sir.
        Secretary Lehman. Well, I guess I would disagree.
        Senator Biden. OK.
        Secretary Lehman. But let me explain. Obviously, I am not
    opposed to amending the ABM Treaty, because, in fact, I was
    engaged in that process. But I think it would be better if we
    could find a new vehicle.
        But in the--you said, ``Be pragmatic. Be practical.''
        I would have preferred a new vehicle. But if we cannot
    negotiate a new vehicle, then I am prepared to work with a
    vehicle that may be more desirable to the Russians.
        Having said that, though, I want to emphasize that, when
    you are trying to add onto something that already exists, it
    complicates the elaboration of what you really want to do.
        Senator Biden. That is a valid point. That is a valid
    point. I think we would all agree, however, that it would be
    better to end up in a circumstance where the Russians and we
    agreed on how to proceed from this point on, whether it is
    within the context of the existing ABM Treaty, as amended, or
    whether it is a through replacement for the ABM Treaty. The
    point is they should, basically, be in on the deal here.
        Ambassador Woolsey. Senator Biden, I agree with that. But I
    think there is an important point here.
        I have been negotiating with the Russians off and on now
    for 30 years come this fall, and I would say that it is not
    always the case that the things that make them likely to work
    with you are the things that they say will make them likely to
    work with you.
        Senator Biden. I agree with that.
        Ambassador Woolsey. They got, I think, really rather
    cordial after President Reagan's SDI speech in fear that the
    United States might actually go ahead and do something in that
    area. And I think that sometimes demeanor and approach is very
    important with them.
        They are a proud people and a proud country. And they do
    not like being treated as second class international citizens.
    It is important to show them respect. It is important to work
    with them on all these things that you mentioned, Nunn-Lugar
    and the brain drain and so forth.
        And it is important to treat them in superficial matters,
    as well as in basic ones, as important, in spite of the state
    of their economy and so forth.
        But I think that when they see the handwriting on the wall,
    when they see that we are likely to move forward with defensive
    systems, I think you will find that they will become more
    accommodating to amending the treaty rather than less.
        Senator Biden. I would generally agree with that, assuming
    that I believed that there was somebody we were dealing with.
    This is not 1993 or 1994. It is certainly not 1989.
        And I see no center from which to deal. I see no place that
    gives me any degree of certainty that there is some particular
    leadership at this moment that I would have great confidence
    would be likely to react in a rational way, in their own
    rational best interest.
        In talking about Soviet leaders, we used the phrase
    ``stodgy.'' We used the phrase ``conservative.'' We used the
    phrase ``self interested.'' The point is: For 50 years, even
    with the mistakes we have each made, Soviet leaders were
    relatively cautious and generally did what was in their best
    interest, because there has been--from an American
    perspective--a dictatorial center, a place from which decisions
    could be implemented and made. I do not see such a center at
    this moment.
        I do not disagree with the thrust of what you are saying. I
    would just make the observation that it is a different playing
    field right now.
        But let me move to a specific question, if I may. It seems
    to me that there is more than a shred of truth to what you have
    all said here. And you all have picked slightly different
    points of emphasis.
        From the standpoint of a policymaker on a small scale--
    because I have no illusions about the Senate's role in this--it
    seems to me that we should be looking down the road and asking
    what our relationship with Russia should look like in the next
    10 to 15 years, as well as dealing with the immediate interests
    that we have relating to the politically hot threat from rogue
    states.
        General, you had numerous conversations with Russia's last
    two Strategic Rocket Force commanders, one of whom became
    Minister of Defense, when you were Commander in Chief of U.S.
    Strategic Command. I would like to ask you a few questions
    about that.
        General Habiger. Certainly.
        Senator Biden. And I realize your information is arguably
    dated, even though it is only months old.
        How would you assess that your two counterparts feel about
    the prospects of ratifying START II and making further
    reductions in the absence--in the absence of a U.S. national
    ballistic missile defense system? I think you have answered
    this, but I want it clearly on the record.
        General Habiger. I have discussed both issues at some
    length. And let me just make it as simple as I can make it.
        Both my counterparts were--General Sergeyev and General
    Yakovlev--General Sergeyev, both when he was the Commander in
    Chief Rocket Forces and in his current position as the Minister
    of Defense--feel very strongly that we need to move out very
    quickly with START II, move out equally as quickly with START
    III. General Yakovlev feels exactly the same way. But every
    time we then transition the discussion to ballistic missile
    defenses, their--their comments to me were very, very
    emotional.
        Their concerns relate to the fact that the U.S. had an
    opportunity to deploy a system, and we did not. They deployed a
    system. And now you want to deploy a system that is outside
    the--the treaty.
        They did not use these words. These are my words. But they
    considered that to be a ``technical foul.''
        At this point in time they would probably say, from a
    military perspective that ``If you went with--if you walked out
    on the ABM Treaty, that we would not go forward with the arms
    control agreements.''
        My sensing is, based upon my conversations, that--that they
    would be reluctant to go along with arms control if we walked
    out of START II or the ABM Treaty. But----
        Senator Biden. Well, let me ask you a sort of a takeoff on
    that. One of the things that President Reagan talked about in
    the grand style that he would do things--and I mean this in a
    sincere complimentary way--was this notion of sharing missile
    defense technology with the Russians.
        Again today, in dealing with some of the same people whom
    Dr. Payne and all of us have dealt with over the last years--
    and it may sound strange to say this, and if I were brand new
    to this place, you could assume this was Pollyanna-ish, but as
    I said, like you, I have been doing this a long time--seems to
    me that the political circumstances may be more ripe than
    anyone is willing to acknowledge, or that we are allowing
    ourselves to believe, to sit with our counterparts, even though
    we are not certain as to who is calling the shots, and begin to
    pursue in a serious way, in a concrete way, what President
    Reagan spoke about in a hopeful way about sharing technology.
        And the reason why I have become sort of fixated on
    something that is, I acknowledge, not an answer to any of the
    larger issues we have discussed here today, but on this notion
    of an agreement with the Russians related to a boost-phase
    defense system located on Russian soil or off the Russian
    coast, is that to use a phrase that Secretary Lehman almost
    invented--this would be not only in their interest, but
    confidence building, as well.
        My view is that it may be a place to begin. I am not
    suggesting that there is anything automatic about their
    acceptance of this. I am not suggesting that it is not a hard
    sell. I am not suggesting that we are not going to have to go
    through the 12 layers of paranoia that exists. And I mean that
    sincerely.
        I have found in my last three or four trips to Moscow,
    dealing with all of the people you have mentioned from
    Yavlinsky's party on down, that there is this incredible
    feeling of isolation. It is almost as if we have hurt their
    feelings in some way. There is this paranoia, in which--
    although most people, Mr. Secretary, acknowledge that we are
    not the great Satan--there are clearly some sectors of the
    political establishment that, in fact, view this as a grand
    scheme and plot to finally snuff out Russia.
        And so, I am of the view that if this were done with a
    concerted effort, we may be able to begin to both protect
    against rogue states and repair U.S.-Russian relations. I
    realize this is going to come across as incrementalism, which
    is always seen as in and of itself bad, in the context of
    foreign policy, in the minds of most people. But it seems to me
    that we should go slowly here, in the sense that we should not
    make any significant change that is not negotiated in an ABM
    Treaty context, particularly since the system that is on the
    table is something that does not work yet. And looking at this
    ``thin'' system my view is, let us either go to a robust
    ``thick'' system and do the whole deal, or wait for a little
    better technology than we have been shown exists now.
        Ambassador Woolsey said that in the seventies and in the
    eighties, when there were real crises, real tensions, real
    capacity and capability, it was awfully hard to figure how to
    transition. It seems to me transition is still a big problem,
    not because we are on a hair trigger now, but because we are
    going to affect, in my view, or at least potentially affect,
    what Russia looks like in the next 20 years. this is something
    that we may come to rue if we do not do it right. This is a big
    deal, a big piece.
        And so my question is--and I would like each of you to
    respond, if you can do it relatively briefly, so we do not take
    all the chairman's time--give us some sense of whether you
    would attempt now in negotiation to seriously try to engage
    both pieces of this equation, offense and defense; deterrence
    and offense here.
        Secretary Lehman. Well, Senator Biden, I agree with, I
    think, almost everything you have said. But now let me define
    it. There is a bit of negotiating history.
        I think it is very important, what you have just said about
    President Reagan's statement in 1983. Speaking for myself, I
    knew that a desire to deploy highly effective ballistic missile
    defenses was a big challenge and a vision. But in many ways the
    even greater challenge and the greater vision was this notion
    that somehow we could cooperate with the Soviet Union in doing
    that.
        The world in which we could do that was going to have to be
    very different. What I find so important and amazing to
    understand is that what was Ronald Reagan's vision of
    cooperation with the Soviet Union in 1983 became a reasonable,
    pragmatic policy in 1992, and that is how we proceeded.
        In fact, although I did not mention it in my testimony, one
    of the proposals we had with respect to changing the ABM Treaty
    had to do with cooperation on technology because it creates
    some hurdles. I think that is important.
        I think you are absolutely right that if we treat Russia,
    as Jim has said, as a second-class citizen, we will get the
    kind of resentment and behavior that that kind of approach will
    always create.
        Russia is on the ropes right now economically. But do not
    underestimate this country. This is a great country. And it is
    a country that in many ways would like to and can work with the
    United States to create that better world.
        I think we should approach them on technology cooperation.
    I think we have to keep our feet on the ground. We have to be
    careful, step by step. It has to be something we all work
    together on. But, frankly, I am more forward-leaning than
    almost anybody else I know in the willingness to explore this.
        I believe that Russian science and technology in many areas
    related to this is absolutely world class. I also believe that
    in some of their deployed systems, for example, in theater
    ballistic missile defense, I am not so sure we do not
    underestimate their capabilities.
        And maybe it is not that we would procure them for
    ourselves, but maybe we ought to be a little more open-minded
    about who else gets involved in using defenses. At least, I am
    open to that. And I think that is important.
        But I want to stress one thing, and I do not know whether I
    should take my shoe off and pound it on the table or what, but
    I want to emphasize something. I believe in the START II
    Treaty. I fought hard for that treaty. I fought hard for some
    of the provisions including the MIRV ban, which I think
    transforms how we think about these things.
        Senator Biden. I agree.
        Secretary Lehman. So I think that is very important. At the
    same time, though, I worry that every time people go to Moscow,
    somebody says, ``Well, if you let Poland join NATO, we are
    going to kill START II,'' or ``If you do not tolerate ethnic
    cleansing in Kosovo, we are going to kill START II.''
        At a certain point, we have to be careful that we are not
    feeding exactly the behavior that is wrong. So I would like to
    see us and more of the arms control community stand up for the
    START II Treaty the way they stand up for the ABM Treaty.
        I mean it does not help to be running over their saying,
    ``You have to demand more of the Americans for START II.'' That
    is not helping.
        Senator Biden. I happen to agree with you. And as you know,
    I do not think there are any two people in this Congress who
    have been more in the face of the Russians--on NATO expansion
    as well as Bosnia, as well as Kosovo--than the two Members
    here. And I happen to view myself as thinking arms control is a
    very important component.
        So I agree with you completely. I do not think we can allow
    the START II Treaty to be used as a leverage when, in and of
    itself, it is in their interests.
        Secretary Lehman. Absolutely.
        Senator Biden. So I have not, and I have never advised this
    President or, when asked, the Secretary of State or the
    Secretary of Defense to in any way yield on these other issues
    which are of great consequence in my view, on the grounds that,
    ``Well, if we do not, then they will not ratify START II.''
        So we are in even more agreement than you think.
        Secretary Lehman. I--in fact, I want to emphasize, START II
    is in their interests. It is in our interests. But we paid a
    good price for it.
        Senator Biden. Yes.
        Secretary Lehman. For example, on how we dealt with
    bombers, I had a long history of not liking that approach, but
    even I supported making those moves for a new Russian
    Government and a new relationship in the context of a treaty
    that gave us the MIRV ban.
        Senator Biden. I agree.
        Ambassador Woolsey. Mr. Chairman--I mean, Senator Biden, I
    agree with essentially what you said in the remarks that just
    preceded what Ron Lehman said. I believe that it is a different
    situation now with Russia, not as favorable as it was in 1992,
    but certainly not as bad as it was in 1983 with the Soviet
    Union.
        And I think that there are some aspects of this technology
    we can share, and there are some features of a global system
    that we could work together with them on. I think it makes
    sense to work with those portions of the Russian institutions
    that are not engaged in proliferation, for example. The
    portions that are not so engaged and are reasonable partners, I
    think we can do things with. And there is no reason not to do
    that.
        Now, I think that this may not meet with immediate approval
    mainly because Mr. Primakov is prime minister. But I think a
    broad-gauged and rather generous approach toward this, along
    the lines of what the Bush administration did in 1992, is a
    perfectly reasonable approach under the current circumstances.
        I think we do have a window of time here before the Duma
    and the Presidential elections coming up within the next couple
    of years in Russia. We have a very hostile reaction in Russia
    today, of course, because of NATO's actions in former
    Yugoslavia piled upon other problems of their own making, such
    as their economy and the like. But insofar as we can help turn
    things in these next few months toward a cooperative approach
    on something like resuscitating 1992, to use a shorthand
    formulation, I think it would be a very good move.
        Now, it may not work. I am not as confident as General
    Habiger, who said that he was, I think, pretty sure that the
    Russians would step up to a global defense. I would put the
    probabilities considerably lower than that, but they are
    certainly not zero. There is a chance. And I think it is worth
    trying.
        And I certainly agree with both you and Ron Lehman that we
    should not let them continue to sell the horse of START II
    ratification to us. I have had that up to here. They have tried
    to sell that horse as many times as Yasir Arafat has tried to
    sell revising the Palestinian Charter so it will not call for
    the destruction of Israel. I think each of those horses has
    been sold far too many times.
        Senator Biden. Thank you.
        Dr. Payne. Senator Biden, let me preface my answer by going
    back to an earlier point that you made about mutual deterrence
    because it is an important piece of this. I did not say that
    mutual deterrence or that deterrence is useless, far from it.
    Mutual deterrence can be very, very useful.
        What I did say is that deterrence is far from reliable. And
    that is based not on theory, but a study of deterrence
    practice.
        Senator Biden. I agree.
        Dr. Payne. What that means to my mind, and I believe this
    goes back to something Ambassador Lehman said, is that we
    should establish a balance between deterrence and defense. We
    do not have that balance now. We have not had it for a long
    time. And, that imbalance was codified by the ABM Treaty.
        In pursuit of establishing a balance between offense and
    defense, which means that we need to move forward on the
    defense, seeking a cooperative arrangement with the Russians is
    an idea whose time has come. In fact, the time came back with
    the Ross-Mamedov talks in 1992. Unfortunately, we, not the
    Russians, discontinued the Ross-Mamedov talks. We pulled our
    position off the table. We discontinued the talks, not the
    Russians.
        And, in fact, in the U.S.-Russian study that I mentioned
    earlier, and in other similar studies, a Russian recommendation
    has been to reestablish something like the Ross-Mamedov talks.
    It does not necessarily have to be Dennis Ross and Mamedov, but
    we should seek to reestablish a special high-level venue, a
    forum to look at how we can cooperate on national missile
    defense.
        Senator Biden. Does that makes sense to you guys?
        Ambassador Woolsey. Absolutely.
        Secretary Lehman. Absolutely.
        Dr. Payne. I am fairly optimistic that this could go
    somewhere, based on the work that I have done with the
    Russians. As Ambassador Woolsey said, the prospects are lower
    than they were 5 years ago to be sure. But I am a little more
    optimistic, given Primakov's position, than not, because
    Primakov--and here I am reflecting what my Russian colleagues,
    have told me--Primakov could actually deliver this. Much as
    Nixon could deliver the U.S. opening to China, Primakov could
    actually deliver cooperation, where a more liberal Russian
    leader probably could not.
        So in many ways, the time is right for us to move back to
    Ross-Mamedov. The Russians have been asking to reestablish it;
    and again, we were the ones to walk away from it. In fact,
    Russians systematically and continually have reminded me, ``You
    were the ones who walked away from Ross-Mamedov. This annoyed
    us to no end.''
        Senator Biden. Thank you.
        General Habiger. To answer your question specifically, yes,
    I agree. We ought to integrate the offense and defense. Now
    having said that--and what I am about to say, I am glad I am at
    the opposite end of the table of my good friend, Secretary
    Lehman--as we go forward with future arms control initiatives,
    I very strongly believe--and I included this in the report I
    sent to the Secretary last year--that operators ought to be
    involved in the negotiation process, rather than the
    professional arms control wonks, as I will call them, with all
    due respect.
        Secretary Lehman. Never have I been more proud to renounce
    my ``wonkhood'' and support 100 percent General Habiger. I
    think that getting the operators involved, especially because
    there are early warning aspects, there are very serious issues
    involved. I think that that is an excellent proposal, and I
    support it.
        Senator Hagel. Thank you. Let me----
        Senator Biden. We have settled everything now.
        Senator Hagel. Well done, Senator.
        Let me move away from the Soviet dynamic here, because we
    know that there are now other players in this game. And we know
    that obviously we have to deal with the Russians, and for all
    the reasons that Senator Biden has laid out.
        But I want to move, start with you, Mr. Ambassador, to the
    Rumsfeld Commission report. How do we now deal with the overall
    universe of the nuclear players here, as we factor in the
    Russian dynamic? And let us start with North Korea.
        For example, according to the Rumsfeld Commission report, 5
    years is not an unrealistic time line here. As the Russians
    then continue to drag this out, well, we have to factor this
    in, or if you do not do this, no START II; if you do this,
    maybe; up, down. And all that time the clock is ticking and
    ticking. And then we are at a year, we are at 2 years.
        And if you agree, obviously you co-authored that report,
    that 5 years is realistic, well, what are we doing here? Are we
    not squandering time? Are we not squandering time that we will
    never, ever get back here? And so therefore, how do we deal
    with these other nuclear nations?
        Ambassador Woolsey. Mr. Chairman, I think that is right.
    And indeed, it is a little worse than that, because we said in
    the Rumsfeld Commission report that the 5 years may have
    already started. We may not know when it starts.
        So given the fact that last August, the North Koreans had a
    partially successful three-stage test that overflew Japan for
    the Taepo Dong, there is at least some reasonable chance they
    could be a year or two or three away from a ballistic missile
    carrying a weapon of mass destruction capable of, for example,
    holding at risk an Alaskan city. It might be a biological
    weapon, rather than nuclear, but the blackmail threat is
    possibly closer than 5 years.
        I think that it would be a very sound approach for us to
    begin now with respect to funding and the research and
    development steps that would be necessary for us to have a
    thoroughly effective theater defense. And I said earlier I do
    not agree with the limitations on theater defense that are
    implicit in the delineation agreement the administration
    negotiated in 1997.
        I think it would be quite reasonable for us to begin to
    pick up whatever vigorous work in R&D we are not now doing that
    is constrained by the ABM Treaty. And certain systems, such as,
    I guess, SBIRS(low), which used to be called Brilliant Eyes,
    that would be necessary for a very effective theater defense
    ought to move out smartly instead of being stalled in budgetary
    scrapes in the Pentagon.
        I think that those types of steps will help concentrate our
    Russian friends' minds. I think they will be more likely to
    deal with us realistically in a resuscitation of something like
    the Ross-Mamedov talks than if we wait and see whether or not
    they believe it is acceptable.
        I think we have some months, perhaps a year or two or more,
    of work in a number of these areas ahead of us before we quite
    squarely and clearly violate any interpretation of the ABM
    Treaty. The timing of budget and approvals and scheduling tests
    and bending metal and the like takes time.
        So to answer your question, I would move out smartly now.
    But I think that that still gives us time before and perhaps
    even immediately after the Duma and Presidential elections that
    are coming up in Russia to see whether or not that approach can
    be combined with working with Russia on a substantial set of
    changes to the ABM Treaty, together with technology sharing and
    the like along the lines of 1992. I think those can all go
    forward pretty much in step with one another.
        Senator Hagel. Thank you.
        Secretary Lehman.
        Secretary Lehman. I agree pretty much with that assessment.
    I think obviously it is an interactive process. We will have to
    keep our eyes open. I do not think we want to get ourselves in
    a situation where we give up our rights to do what we have to
    do. But at the same time, clearly, the cooperative approach is
    the better approach. We ought to give it a try.
        I think Senator Biden's comment where we want to be 10
    years from now, well, if you look at how Russians think about
    ballistic missile defense, I think it is important to remember
    that it is not just the so-called liberals and progressives who
    have an interest in this. In fact, a lot of hard-nosed Russian
    nationalists do not understand why what they have around Moscow
    is not covering more of the country. And in many ways, they
    live in a more dangerous world than we do.
        So we ought to keep in mind that it is not going to be an
    easy process, that there are a lot of spoilers in the political
    process in both sides. It is going to be difficult. But in the
    long run, I think a consensus is emerging here. And the basis
    for such a consensus probably is latent in Russia for a
    cooperative approach that will create a sounder basis over the
    long term for our relations with Russia.
        Senator Biden. Mr. Chairman, if we are worried about 30
    Chinese ICBM's, I wonder why those who sit in the Duma and
    watch thousands and thousands of Chinese moving into Russian
    territory to take it over to live in it, why they are not
    worried. It seems to me the confluence of interests here is
    overwhelming.
        Ambassador Woolsey. I agree. I do not think Mr. Primakov
    sees it that way, but I certainly agree with you, Senator
    Biden.
        Senator Hagel. Dr. Payne.
        Dr. Payne. With regard to cooperatively negotiating changes
    to the ABM Treaty, it sounds like everyone at the table concurs
    with that. And I certainly do. Let me add only two caveats. And
    the two caveats come from statements that have been made by a
    number of Russians, and they are exactly to this point.
        The first one was--and this point was made by Russians
    fairly repeatedly--we will accommodate only when we know the
    U.S. is serious about NMD deployment. That is when we will
    become willing to accommodate. Because until we know you are
    serious, we do not need to engage in accommodation. Once we
    know you are serious about NMD deployment, then you will see us
    become willing to accommodate. That is the first point.
        The second point that Russians have made, interestingly
    enough, is that once negotiations have begun--and here I have a
    quote--``we will dissipate much of your energy to deploy NMD
    through negotiations.''
        And I think for those of us who are concerned about
    beginning a negotiation process, it is simply because we are
    worried that that this second point is true. Much of our energy
    to deploy NMD will be dissipated by the negotiations. And
    again, that point that was made to me by the Russians: We will
    dissipate much of your energy for deployment.
        So as long as we guard against being less than serious, and
    as long as we guard against having our energy for deployment
    dissipated by the negotiations, it seems to me that moving
    ahead in a cooperative route clearly is the way to go.
        Senator Hagel. General.
        General Habiger. I agree. I have nothing further to add,
    sir.
        Senator Hagel. I am sorry?
        General Habiger. I have nothing further to add. I agree.
        Senator Hagel. Agree with what Dr. Payne just said?
        General Habiger. Yes, sir.
        Senator Hagel. Thank you, General.
        Let me shift to what Senator Biden just mentioned, that we
    have not devoted any attention this morning to China. And we
    all are acutely aware of the recent developments and debate
    going on up here, especially in this town, regarding Los Alamos
    and technology that may have, did, maybe drift to the Chinese
    and who was involved and all the currents that are surging
    through that particular time.
        Where do you see China rolling out on all of this? Should
    we be focusing more attention with the Chinese on this overall
    missile defense issue, the same way we are working with the
    Russians or not? Let us start with you, Mr. Secretary.
        Secretary Lehman. I think there are some important
    similarities, both with respect to engaging China, not making
    what does not have to be a bad situation become a bad
    situation. We do have to engage. I think engagement should not
    be business as usual. It ought to be targeted and focused and
    hard-nosed. But I think it is important to engage, and I think
    specifically on the question of ballistic missile defense.
        It will not help our future relations with China if we
    continue to emphasize a sort of mutual hostage climate as the
    basis for our future relationship. We have opportunities to do
    much better than that. And we ought not to feed that type of
    reaction.
        China is going to grow economically. It is a big and
    powerful country in a very important and troubled part of the
    world. And I think that engaging with China is going to be
    important. We do not have quite the sophisticated interactions
    with the Chinese that we were able to develop over the years
    ultimately with the Russians, but we ought to be trying to
    develop them.
        Senator Hagel. Thank you.
        Ambassador Woolsey.
        Ambassador Woolsey. I do not know, Mr. Chairman, how to say
    ``chutzpa'' in Chinese, but the Chinese have shown a great deal
    of it by not being a signatory to the ABM Treaty and then
    pushing us very hard not to deploy ballistic missile defenses,
    and the Japanese not to protect themselves against North Korea
    and the like. China has invested heavily in ballistic missiles,
    not only short-range ones to threaten Taiwan, but ICBM's, of
    course, to threaten us. And we now know that through espionage,
    as well as some of the other technology transfers, they are
    going to be able to modernize their forces considerably and
    probably are moving to a submarine launched missile as well.
        I think we are not likely to see the kind of chaos in the
    Chinese control of their military forces that threatens in
    Russia. And I am not particularly worried about an unauthorized
    launch and so forth from them, partially because of their
    doctrine, partially in their practices, but also partially just
    because I do not think their military is going to go that way.
        But I do think we need to worry about their ability to,
    essentially, blackmail us in the event of a future crisis in
    the Taiwan Strait to hinder our being able to do what we did in
    1996, send aircraft carriers and essentially insist on a
    peaceful settlement of any resolution of any dispute between
    them and Taiwan.
        Back in 1996, my former counterpart, the head of Chinese
    military intelligence, General Tscong Guang Kai, is the one who
    said to Chas Freeman that the United States probably would not
    risk Los Angeles in order to defend Taipei. I think that is
    what they are really interested in. They are interested in
    putting us enough at risk and reliably at risk that they can
    try to have a free hand with Taiwan in any future crisis.
        And I think it is very much not only in the Taiwanese'
    interest, but in our interest, to keep them from having that
    free hand. I think we are more likely to be able to insist on a
    peaceful resolution of the issue between them and Taiwan if we
    are not vulnerable to them.
        I think that a missile defense of affordable and reasonable
    scope that would help us deal with North Korea and the like
    would also help us have a reasonable degree of confidence in
    being able to defend against a Chinese attack. And I think that
    would strengthen our hand in the future in dealing with China
    in something like a crisis over Taiwan.
        So I think the situation with China offers an added
    rationale for our being able to tell General Tscong Guang Kai
    that the next time he threatens Los Angeles that he will not be
    able to do so successfully.
        Senator Hagel. Thank you.
        Dr. Payne.
        Dr. Payne. Just to agree with Ambassadors Lehman and
    Woolsey. My hope is that we would not seek to establish mutual
    vulnerability as a basis for our relations with the PRC because
    of the potential for deterrence and coercion of us that such
    vulnerability would possibly entail; that is, Chinese
    deterrence and coercion of us when trying to support our Asian
    allies and friends.
        A second point that is a little bit different, concerns the
    connection between China and Japan with regard to our
    cooperation with Japan on TMD. China has been very forceful in
    telling us that Japan should not have TMD, and we should not
    cooperate with Japan for theater missile defense. If you get to
    the basis of the Chinese argument it is that it would be a bad
    thing if China could not target Japan.
        It seems to me that we ought to accord the level of respect
    to that argument as it deserves, and essentially ignore it. It
    is part of the Chinese ``friendship offensive,'' which is an
    amazing offensive to begin with. But you see these types of
    statements and arguments over and over again, because the
    Chinese know how influential such rhetoric can be on the
    Japanese perception of threat and the need for TMD.
        Senator Hagel. Thank you.
        General.
        General Habiger. By all means, I think we ought to bring
    China into the equation. I would caveat that by saying we are
    talking about relatively small numbers of systems, about 18,
    that can hit the United States, very large warheads, relatively
    inaccurate systems. They would be city busters, as compared to
    having any kind of military value.
        The Chinese deployed a sea-launched ballistic missile
    submarine in the mid-eighties. It went on one cruise and has
    been essentially in dry dock ever since. They are building a
    new sea-launch ballistic missile, which tells me that they in
    the future need to come on our radar scopes.
        But I will tell you, Mr. Chairman, there is another country
    I think we need to think about, if we are thinking about in the
    20, 25 years into the future, and that is the Indians. India,
    as you well know, a couple years ago exploded a device or two.
    They have a very sophisticated space launch capability, which
    can be turned into an ICBM program very quickly.
        The Indians also, in cooperations with the Russians, in
    accordance with the agreements, are developing a sea-launch
    ballistic missile with ranges less than 500 kilometers, which
    fits into the arms control accords. I see that as a stepping
    stone. And the Indians have also indicated they are going to
    build a research submarine that will allow them to launch these
    test objects.
        So China for sure, and in addition we need to keep India on
    our horizon.
        Senator Hagel. Senator Biden, any last thoughts?
        Senator Biden. I hesitate to even say it, but only if I can
    get a commitment that Secretary Lehman will not speak. I am
    only joking.
        Secretary Lehman. You have it.
        Senator Biden. Comprehensive Test-Ban Treaty: does it fit
    anywhere in this? Bad idea? Good idea? It seems to me, when you
    are talking about India, when you are talking about Pakistan,
    it has a place. When you are talking about North Korea, maybe
    it's less applicable. Where does it fit? Bad idea?
        Ambassador Woolsey. Well, Senator Biden, I do not believe
    that the zero level is verifiable. Not only because it is so
    low. Partially because of the capability that a country has if
    it is willing to cheat on such a treaty, of decoupling its
    nuclear tests from the ground by setting them off in caverns or
    caves and the like.
        I think I might have felt differently about a comprehensive
    test ban that was at a level of a kiloton, or even a few
    kilotons perhaps. That I think we had a reasonable chance of
    verifying. But I think the level of zero is, in my judgment,
    not verifiable. That makes it a treaty that we have to observe
    because of our open society, and the countries like China
    probably will not. And to my mind, that makes it worse than a
    weak read on which to rely.
        Senator Biden. Secretary Lehman, there are a lot of
    rumors--I do not know if this true--that the Appropriations
    Committee plans to cut the Energy Department's nonproliferation
    programs in Russia, you know, the IPP, the Nuclear Cities
    Initiative, et cetera. Is that a good idea?
        Secretary Lehman. No. I think if we are going to engage, we
    have to engage effectively. I am saying this as a private
    citizen.
        Senator Biden. Of course. I understand that. And by the
    way, I truly appreciate, Mr. Chairman, you having this hearing,
    and the chairman having it, and the testimony of all of you. I
    think I walk away from it more optimistic than pessimistic
    about how we should proceed and about the prospects of 10 years
    from now being more secure, rather than less secure.
        I thank you all, and I thank you, Mr. Chairman, for giving
    me so much time.
        Senator Hagel. Senator Biden, thank you.
        We have a vote in 10 or 12 minutes, but since we have a
    couple of minutes, if I might get back to Senator Biden's
    question on CTBT. Any of the rest of you have a thought on
    that? Secretary Lehman, we will start with you. Good idea? Bad
    idea?
        Secretary Lehman. I share Jim Woolsey's concerns about the
    verifiability of the treaty. I am concerned about the ability
    to maintain our deterrent without testing. Clearly in the past,
    when I was in government, we viewed this as a long-term
    objective. But the conditions were considerably different than
    what we experience today. There have been some positive
    developments, but there have also been some negative
    developments.
        With respect to the specific question that Senator Biden
    mentioned, India, I do not know of any area in arms control and
    non-proliferation that I have found more frustrating than South
    Asia. It has been a slow motion train wreck coming. We have all
    seen it. We have all known it. We have all known it would be
    difficult to turn this ship around, and it would be a slow
    process.
        But we--maybe just because it is so far away and so
    different, we just never figured out how to pull together a
    coalition of people within the American foreign policy
    community to do it.
        So in many ways I view it as a great disappointment. And I
    hold all of us together responsible, including myself that we
    did not have a better way to deal with it?
        But I have to say that in many ways, the way in which we
    handled the CTBT did not help. India had already become a
    country that could not take yes for an answer. Their domestic
    political situation was so complex that you had spoilers who
    would take almost anything and turn it negative.
        And here is a case where India, long the advocate of the
    CTBT, in essence decided to test, because it was feeling the
    heat of this kind of pressure on them. It was not the sole
    cause. It may not have even been the primary cause, but it
    certainly was a factor in their calculations.
        Senator Hagel. Thank you.
        General Habiger, do you have a thought on CTBT?
        General Habiger. Yes, sir. I think we ought to continue
    with it, continue to support it, recognizing its limitations.
        Senator Hagel. Dr. Payne.
        Dr. Payne. I agree with the points made by both Jim and
    Ron.
        Senator Hagel. Well, gentlemen, thank you. This has been
    very helpful to the committee, and we are grateful.
        Senator Biden, thank you.
        [Whereupon, at 12:10 p.m., the committee adjourned, to
    reconvene at 10 a.m., May 13, 1999.]

                   ABM TREATY, START II, AND MISSILE DEFENSE

                                  ----------

                             THURSDAY, MAY 13, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met at 10:12 a.m., in room SD-562, Dirksen
    Senate Office Building, Hon. Chuck Hagel presiding.
        Present: Senator Hagel.
        Senator Hagel. Good morning. This morning's hearing is the
    fifth in a series of hearings the Senate Foreign Relations
    Committee is holding on the 1972 ABM Treaty. Today's hearing
    will focus on the relationship between missile defense,
    strategic arms reductions, the 1972 ABM Treaty, and the
    national missile defense architecture that the administration
    is now developing.
        Before introducing our witnesses this morning, I would like
    to summarize five key judgments that have come out of our last
    five ABM hearings to date.
        First, the ballistic missile threat to the United States is
    present and growing. A number of countries such as Iran and
    North Korea could today inflict massive damage on the United
    States using a short-range, ship-launched missile with an
    unconventional warhead. We are threatened by further
    instability in Russia. The Chinese missile threat exists and is
    growing.
        Second, the committee has heard compelling testimony that a
    national missile defense against these threats is
    technologically feasible. What is lacking is the political
    will. America is kept vulnerable by a commitment to the 1972
    ABM Treaty with a country and a government that no longer
    exists.
        Third, this committee has listened to numerous experts who
    advocate deployment of a national missile defense system
    despite Russian and Chinese objections. Ideally, we should seek
    to engage Russia so that we can deploy missile defenses without
    affecting our important bilateral relations. But we should
    never let the defense of our citizens be held hostage to
    diplomatic relations. The deployment process must move along
    its own separate track.
        We can undertake confidence building, and that confidence
    building addresses Russian concerns. But at no time should
    Russia be given the impression that it has a veto over any
    aspect of U.S. missile defenses.
        Fourth, an overwhelming number of witnesses have urged this
    committee to reject the Clinton administration's effort to
    expand the ABM Treaty. At a time when we need to move beyond
    the ABM Treaty, it would be folly to extend it to new partners
    or to place new limits on the capabilities of missile defense
    systems.
        Several witnesses have noted that the ABM Treaty is legally
    dead. Nevertheless, they have pointed out that the treaty
    remains a political question in our relationship with Russia
    and that it must be addressed in further discussions on missile
    defense and strategic arms reductions.
        But all decisions relating to U.S. missile defense
    capabilities, system architecture, and deployment timeframes
    cannot be held captive to these talks. Some of our witnesses
    have testified that Russia will ``get on board'' with our
    missile defense plans only when they perceive that we are
    serious, deadly serious, and that they risk being left behind.
    It is time to get serious about missile defense.
        Fifth, this committee has heard several recommendations
    relating to the subject of today's hearing. The shadow of the
    ABM Treaty continues to undermine U.S. missile defense plans.
    Several witnesses have noted that missile defense plans
    currently under development by this administration are designed
    more to tiptoe around the ABM Treaty than they are to actually
    intercept incoming ballistic missiles.
        For example, the administration has chosen only those
    sites, radar configurations, interceptor numbers, and
    technologies that would fit most easily within ABM Treaty
    constraints. The administration has not selected sites and
    capabilities primarily on how well suited they would be for the
    task of defending America.
        In sum, while there is clear consensus on the nature of the
    threat and the need for a national missile defense, the
    administration continues to adhere to an outdated treaty. As a
    result, we are squandering precious time in developing an
    effective system that will protect America's interests from
    missile attack.
        The committee looks forward this morning to an examination
    of these issues by our distinguished witnesses. First allow me
    to introduce our two panels. Our lead witness is the Honorable
    Stephen Hadley who served from 1989 to 1993 as Assistant
    Secretary of Defense for International Security Policy under
    President Bush. Mr. Hadley was responsible for DOD nuclear
    weapons policy, ballistic missile defense, and arms control.
    Mr. Hadley is now a partner at Shea & Gardner law firm here in
    Washington, DC.
        Our second witness is the Honorable David Smith who served
    as chief negotiator to the Defense and Space Talks from 1989 to
    1991. In this role, he worked to negotiate an agreement with
    the Soviets to allow deployment of defenses against ballistic
    missiles. And I note that in 1985 and 1986, he served as a
    professional staff member on this committee where he advised
    Senator Lugar on arms control issues. Ambassador Smith
    currently serves as president of Global Horizons, an
    international consulting firm.
        Our third witness is the Honorable Robert Joseph. Mr.
    Joseph served during the Bush administration as U.S.
    Commissioner to the ABM Treaty's Standing Consultative
    Commission. Ambassador Joseph has a distinguished background at
    the Defense Department where he worked on a wide range of arms
    control issues, including missile defense, nuclear testing, and
    nonproliferation. Since 1993, Ambassador Joseph has been on
    detail from the Office of the Secretary of Defense to the
    National Defense University.
        On our second panel will be Mr. William Lee who served as
    senior analyst on nuclear targeting at the Defense Intelligence
    Agency from 1981 to 1985. From 1985 to 1992, Mr. Lee was the
    Senior Executive Service Officer at DIA charged with military
    production, R&D, and collection systems. Mr. Lee is now an
    adjunct fellow at the Center for Strategic and International
    Studies.
        The committee welcomes all four of our distinguished
    witnesses and look forward to hearing from each of you.
    Gentlemen, thank you and we will ask you, Mr. Hadley, to begin
    the presentations.

    STATEMENT OF HON. STEPHEN HADLEY, FORMER ASSISTANT SECRETARY OF
            DEFENSE, PARTNER, SHEA & GARDNER, WASHINGTON, DC

        Mr. Hadley. Thank you, Mr. Chairman. It is a great
    privilege to have the opportunity to appear before this
    committee today.
        I want to begin by saying that I strongly support the
    effort to provide an effective national missile defense for the
    United States. It is true that the current provisions of the
    ABM Treaty prevent us from doing so, and hence the questions
    raised about the future of the treaty.
        In your opening comments, you pointed out that there are
    those who believe that the United States should first seek to
    negotiate changes to the ABM Treaty with Russia so as to permit
    a national missile defense system. What is often overlooked is
    the fact that the United States made a serious effort in 1991
    and 1992 to negotiate changes to the treaty to permit that
    deployment, and I thought it might be useful this morning for
    me to describe briefly those efforts, to discuss how the United
    States might go about renewing a discussion with Russia on ABM
    Treaty revision, and to assess the prospects for success.
        I have a longer statement on this subject. If it is all
    right, Mr. Chairman, I will just go through and hit the
    highlights.
        Senator Hagel. That is fine. Your complete statement will
    be included in the record.
        Mr. Hadley. Thank you.
        Many do not realize that on November 26, 1991, U.S.
    representatives met with representatives from the Soviet Union,
    Russia, Ukraine, Belarus, and Kazakhstan and tabled an outline
    for a new ABM Treaty regime. This new regime would have
    permitted ballistic missile defenses but limited to what was
    required to protect against small ballistic missile attacks.
    The proposal was very concrete. We proposed an upper limit on
    the number of ABM interceptors, a limited number of
    geographically dispersed sites at which they could be deployed,
    a limit on the number of interceptors at each site. We proposed
    eliminating the constraints of the treaty on development and
    testing of ABM systems, and we proposed a limited duration for
    the agreement.
        These suggestions were listened to attentively by the
    participants and were followed in January 1992 by a public
    statement from President Yeltsin in which he called for a
    global system for ballistic missile protection of the world
    community that could be based on the reorientation of the
    United States SDI program, as well as high level technologies
    developed by Russia in its defense complex.
        This was a real breakthrough. It was a Russian leader
    formally acknowledging that ballistic missile defenses have an
    important role to play in the post-cold war world.
        The Bush administration informed President Yeltsin that it
    welcomed his suggestions, and indeed in a summit meeting in
    June 1992, President Yeltsin and President Bush formalized
    cooperations between their two countries on a global protection
    system. They established a high level working group to explore
    on a priority basis three issues: potential sharing of early
    warning information, potential cooperation in developing
    ballistic missile defense capabilities with Russia and our
    allies, and a legal basis for cooperation, including necessary
    amendments to the ABM Treaty.
        Considerable progress was made. A number of working groups
    were established. Progress was made in defining a workable
    concept for a GPS system, in defining specific areas of
    technical cooperation, in developing means for sharing of early
    warning information, and even undertaking the planning for a
    joint deployment of the theater missile defense capabilities of
    the two sides.
        Regrettably, these discussions ground to a halt in October
    1992 when it became clear that the outcome of the upcoming
    Presidential election would not be the reelection of President
    Bush.
        Under the Clinton administration, discussions continued
    between the United States and Russia on the subject of
    ballistic missile defenses, but with a completely different
    focus. Instead of trying to lead to a revision of the ABM
    Treaty that would have facilitated deployment of ballistic
    missile defenses, the administration's discussions instead
    focused on the so-called demarcation issue and, as you noted in
    your opening statement, resulted in, in fact, extending the
    constraints of the ABM Treaty to our ability to deploy theater
    ballistic missile defenses.
        It is very regrettable that the Clinton administration did
    not build on the work that had been done in the Bush
    administration on a global protection system and on a U.S./
    Russian dialog on how to amend the ABM Treaty to permit
    national missile defense. In the intervening 6 years, we have
    lost valuable time, and it may simply be too late for
    negotiated amendments to the ABM Treaty. Obviously, the
    political situation, particularly in Russia, is much more
    difficult to deal with than it was 6 years ago.
        My own view is, however, that it is worth making the effort
    but we need to think very concretely about how we restart the
    dialog with Russia.
        In the balance of my statement, I describe in some detail
    the kind of framework we need to pursue in order to have any
    chance of successful discussions with Russia. It really has
    three parts.
        First, we need, I think, to put national missile defense in
    a context of a global effort against the proliferation of
    weapons of mass destruction and the means to deliver them. That
    has to involve our allies, but it also has to involve Russia
    and, to some extent, China because the reality is they are
    potentially the biggest proliferators on the block. And we need
    to see ballistic missile defense as one piece and, indeed, a
    contribution that we can make to this global initiative against
    weapons of mass destruction.
        Second, we need to have a new concept of deterrence that is
    more appropriate for the post-cold war world. In the cold war,
    when we had a single overwhelming Soviet military threat,
    deterrence based on threat of retaliation with offensive
    nuclear forces made sense. It is not clear that simply relying
    on deterrence through threat of retaliation is sufficient any
    longer, and I talk in my statement as to why that is the case.
    I would argue we need to have a new concept of deterrence that
    is based on both offensive nuclear forces to provide
    traditional deterrence and the ability to protect against
    weapons of mass destruction and the means to deliver them
    should deterrence fail. And this is a concept that ought to be
    attractive both to the Russians as well as to us.
        Finally, I would propose, consistent with that concept,
    that we go to the Russians with a so-called package deal in
    which we would propose to Russia a coupling of significant
    reductions in the numerical ceilings in the START II treaty
    with a revision of the ABM Treaty to permit the deployment of
    numerically limited, but still capable ballistic missile
    defenses to protect the territory of the two nations. I think
    that is something that is both in the United States' and
    Russia's national interest, and it is in that context that we
    might have an opportunity of some success in those discussions.
        I agree with you that the only way to go into those
    discussions is making it clear that our NMD program is going to
    go forward, and if at the end of the day, those discussions are
    not successful, then we are not going to let the ABM Treaty
    prevent us from protecting the country against these threats.
    But I think the possibility of negotiations is something we
    should pursue.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Hadley follows:]
                  Prepared Statement of Hon. Stephen J. Hadley
        Mr. Chairman and Members of the Committee.
        It is a great privilege to have the opportunity to appear before
    you today to testify concerning national missile defense and its impact
    on the 1972 Anti-Ballistic Missile Treaty.
        I strongly support the effort to provide an effective national
    missile defense for the United States. The current provisions of the
    ABM Treaty prevent the United States from doing so. Hence the serious
    questions being raised about the future of the Treaty.
        Some experts argue that the United States should act now to
    withdraw from the ABM Treaty or that the ABM Treaty effectively lapsed
    with the dissolution of the Soviet Union. Other experts argue that
    before adopting either of these courses of action, the United States
    should first seek to negotiate changes to the ABM Treaty that would
    permit the deployment of a national missile defense system. What is
    often overlooked is that the United States made a serious effort in
    1991-1992 to do precisely that--to negotiate changes to the ABM Treaty
    with the Russian government.
        I thought it might be useful this morning to describe briefly these
    earlier efforts, to discuss how the United States might go about
    renewing a discussion of ABM Treaty relief with the Russians, and to
    assess the prospects for success.
                the global protection system or ``gps'' concept
        The process began on September 27, 1991, when President Bush
    publicly called on the leadership of the then-Soviet Union to ``join us
    in taking immediate, concrete steps to permit the limited deployment of
    non-nuclear defenses to protect against limited ballistic missile
    strikes whatever their source.'' On October 5, 1991, then-Soviet
    President Gorbachev responded by stating that ``we are ready to discuss
    the U.S. proposal on non-nuclear ABM systems'' and suggested that the
    two countries examine the possibility of creating joint ballistic
    missile warning systems. This statement was a clear recognition by the
    Soviets, and confirmed by the Russians, that the proliferation of
    ballistic missiles and weapons of mass destruction (``WMD'')
    represented as big a threat to them as to the United States.
        Encouraged by this response, on November 26, 1991, U.S.
    representatives met with representatives of the Soviet Union, Russia,
    Ukraine, Belarus, and Kazahkstan to table an outline for a new ABM
    treaty regime. This new regime would have permitted deployment of
    ballistic missile defenses but limited to what was required to protect
    against small ballistic missile attacks. The proposal envisioned an
    upper limit on the number of deployed ABM interceptors; the deployment
    of ground based interceptors at a limited number of geographically
    dispersed sites; a limit on the number of interceptors at each site;
    elimination of the ABM Treaty's constraints on development and testing
    of ABM systems; and a limited duration for the agreement so as to
    permit deployment in the future of more advanced systems such as space-
    based interceptors.
        Meanwhile, dramatic events were occurring in Moscow which led
    ultimately to the dissolution of the Soviet Union and the emergence of
    an independent Russia with its first democratically elected president,
    Boris Yeltsin. In speeches on January 29 and January 31, 1992,
    President Yeltsin called for ``a global system for protection of the
    world community [that could be] based on a reorientation of the U.S.
    [Strategic Defense Initiative] to make use of high technologies
    developed in Russia's defense complex.''
        This was a real breakthrough that stunned even the most committed
    U.S. advocates of ballistic missile defense. A Russian leader formally
    acknowledged that ballistic missile defense had an important role to
    play in the post-Cold War world.
        The Bush Administration informed President Yeltsin that it welcomed
    his proposal for a ``global protection system'' (or ``GPS'')--that the
    United States shared his bold vision and was prepared to work with him
    toward that goal. The United States moved quickly to consult with its
    friends and allies in Europe and Asia to make clear that they would be
    in on the ground floor and included in any such system. The United
    States sought specifically to reassure the British and French that such
    a system would not undermine the credibility of their own strategic
    nuclear deterrents. The United States particularly sought to enlist the
    NATO alliance in the cooperative GPS effort.
        Everyone understood that to deploy a global protection system would
    require changes to the ABM Treaty. It was believed that cooperation in
    developing the system would allow Russia to accept its deployment and
    the changes in the ABM Treaty that such deployment would require. This
    approach would change thinking in the United States as well, for if the
    world community in general and Russia in particular were ready to
    develop and deploy defenses against limited ballistic missile attacks,
    then even the most skeptical critics in the United States would have to
    give way. Thus cooperation on a global protection system offered the
    hope of breaking the log jam on the ABM Treaty that plagued the U.S.
    domestic political system.
             u.s. russian discussions on a global protection system
        At their summit meeting in June, 1992, President Yeltsin and
    President Bush formalized cooperation between their two countries on a
    global protection system. In the joint summit statement issued on June
    16, 1992, the two Presidents agreed that ``their two nations should
    work together with allies and other interested states in developing a
    concept for a system [to protect against limited ballistic missile
    attacks] as part of an overall strategy regarding the proliferation of
    ballistic missiles and weapons of mass destruction.'' To this end, they
    established a high-level group to explore on a priority basis:

       The potential for sharing of early waming information
            through the establishment of an early warning center.
       The potential for cooperation with participating states in
            developing ballistic missiles defense capabilities and
            technologies.
       The development of a legal basis for cooperation including
            new treaties and agreements and possible changes to existing
            treaties and agreements necessary to implement a global
            protection system.

        The high-level group established by the two Presidents met twice,
    during July and September of 1992, and established working groups to
    pursue specific subjects. Considerable progress was made in developing
    a workable concept for the GPS system, in defining specific areas for
    technical cooperation, in developing means for sharing of early warning
    information, and even in undertaking a joint deployment of the two
    sides' theater missile defense capabilities. The activity of the high-
    level group was suspended in November of 1992, however, with the
    outcome of the U.S. Presidential election.
        Under the Clinton Administration, discussions continued between the
    United States and Russia on the subject of ballistic missile defense.
    But the primary object of those discussions changed dramatically.
    Instead of leading to the revision of the ABM Treaty to facilitate the
    deployment of ballistic missile defenses, these discussions instead
    resulted in extending the Treaty's limits and imposing constraints on
    the ability of the United States to deploy systems to defend against
    theater ballistic missiles. This is ironic because the ABM Treaty does
    not by its terms impose any limits on defenses against theater
    ballistic missiles systems. The results of these Clinton Administration
    discussions are now before this Committee.
                      restarting the dialogue with russia
        It is extremely unfortunate that the Clinton Administration did not
    build on the work done during the Bush Administration on a ``global
    protection system'' and on the U.S./Russian dialogue on how to amend
    the ABM Treaty to permit national missile defense. If it had, we might
    be a lot closer today to the consensual deployment of such a system. In
    the interim, the political climate for anything positive in the U.S./
    Russian relationship has deteriorated badly. We have lost valuable time
    and it may simply be too late for negotiated amendments to the ABM
    Treaty.
        My own view, however, is that it is worth making the effort, for
    all the reasons that caused the Bush Administration to undertake the
    dialogue in the first place. But how we go about restarting the
    dialogue is very important.
              what is the right framework for working the problem?
        The U.S. national missile defense effort and the issue of revision
    of the ABM Treaty have been extremely sensitive issues for Russia. They
    have been as divisive within the U.S. domestic political debate. In
    truth the U.S. is unlikely to be successful in getting Russian support
    for any revision of the Treaty unless it can demonstrate strong
    bipartisan political support for the U.S. approach.
        What is needed is a framework in which to view national missile
    defense that offers the prospect simultaneously of creating a new
    consensus within the U.S. political debate, offering an acceptable way
    for the Russians to accept our ABM Treaty proposals, and reassuring our
    own allies who are in some instances quite skeptical about U.S.
    national missile defense efforts. The framework also needs to provide a
    basis for dealing constructively with China on this issue.
        This framework also needs to reconcile three competing U.S. policy
    priorities: discouraging (if not preventing) the proliferation of WMD
    and the means to deliver them, reducing the Russian nuclear posture in
    ways that are stabilizing, and pursuing the development and deployment
    of ballistic missile defenses.
        Within the U.S. domestic political debate, these three priorities
    have often been at war with one another. The partisans of non-
    proliferation have seen the pursuit of national missile defense as
    evidence of lack of commitment to and confidence in the non-
    proliferation effort. The partisans of reducing the danger posed by
    Russian nuclear weapons have seen national missile defense as fatally
    undermining the prospects for START II in the Russian Duma and any hope
    for a START III. The partisans of national missile defense have felt
    stymied by both of the other two groups.
        Conflict among these policy priorities has also bedeviled our
    approach to these issues in dealing with other governments. The
    Russians have made clear they will link any START II ratification to
    continued U.S. adherence to the ABM Treaty as written. Even some of our
    closest allies are worried that the U.S. national missile defense
    program represents either a neoisolationist retreat from the world or a
    vehicle for U.S. intervention ``anytime/anywhere.''
        Finally, by appearing to be a unilateral initiative providing a
    capability available only to the United States, national missile
    defense threatens U.S. leadership of the global effort against the
    proliferation of WMD.
    1. Embed Missile Defense Firmly in a U.S. Strategy Against WMD
        The starting point for resolving these conflicts is to treat the
    U.S. ballistic missile defense effort as part of a comprehensive U.S.
    strategy for dealing with weapons of mass destruction (``WMD'') and the
    means to deliver them. That strategy of necessity must be a global
    strategy, one in which the U.S. can lead but cannot dictate. Such a
    strategy can succeed only if the U.S. can enlist its closest allies
    despite increasing economic competition and trade frictions between
    these allies and the United States. It can succeed only if the U.S. can
    enlist Russia and China, two of the greatest potential sources of both
    WMD and the means to deliver them.
        But in engaging these parties the U.S. has on its side the fact
    that proliferation is a serious challenge that threatens each of these
    countries as well as the United States. Europe cannot feel sanguine
    about an Iraq with WMD and long-range ballistic missiles any more than
    Japan can feel sanguine about North Korea. Russia and China should also
    be concerned about North Korea and would certainly be concerned about
    the nuclear-armed Japan that could follow if the North Korea problem is
    not managed properly.
        The United States needs to go to its key allies, to Russia, and
    perhaps even to China at the highest levels to propose a revitalized
    effort against WMD jointly led by these key nations. Particularly with
    respect to Russia, such an undertaking would provide both a positive
    element in the U.S./Russian relationship and the best approach for
    obtaining Russian cooperation--assuming the Kosovo crisis is resolved
    without a total breach between the U.S. and Russia.
        Success of a joint effort against WMD will require probably lengthy
    strategic consultations between the United States and these governments
    to develop a common assessment of the risks posed by countries as Iran,
    Iraq, and North Korea and the list of measures that will need to be
    pursued. These measures need to include:

       Better means of collecting and analyzing intelligence
            information about potential proliferators.
       Regional strategies to try to resolve underlying tensions
            and disputes that provide part of the motivation for WMD
            proliferation (such as in the Middle East).
       Security strategies that deter the acquisition and use of
            WMD and the means to deliver them by states seeking to coerce
            their neighbors (such as Iraq).
       Enhanced export controls on a multilateral basis with real
            sanctions for noncompliance.
       Improved capabilities to deal with both the military and
            civilian consequences of WMD use (including improved detectors,
            vaccines, antidotes, protective clothing, and emergency
            response procedures and practices).
       Improved technical and operational means to detect and
            defeat the various means of delivery of WMD (including
            ballistic missiles, cruise missiles, aircraft, and
            unconventional means).
       Improved conventional capabilities (including weapons and
            sensors) to locate and destroy production, storage, and support
            facilities for WMD and associated delivery systems (though with
            obvious limitations on what could be shared with other
            countries).

        Partisans of ballistic missile defense must recognize that BMD is
    only one of several measures that need to be pursued in dealing with
    WMD risks, while partisans of nonproliferation (or the risks of WMD
    delivery by unconventional means) must acknowledge that ballistic
    missile defense needs to be pursued as well.
        This framework allows the U.S. to offer to contribute ballistic
    missile defense capability to those countries joining in this
    comprehensive effort against the proliferation of WMD. The U.S. is
    already making such a contribution to some degree in its cooperation
    with Israel on the Arrow program, its sale of Patriot missile systems
    to close allies, and certain technology sharing with allies under
    existing cooperative agreements. But significant technology transfer
    restrictions prevent wider sharing.
        The foregoing framework also provides a better basis for dealing
    with China on the issue of ballistic missile defense. It would allow
    the U.S. to offer China a leadership role in this initiative if China
    were willing to commit itself to the key elements of the overall
    strategy--in particular, tough export control limitations, an end to
    transfer of Chinese WMD and missile technology to key countries of
    concern, and a halt to its own ballistic missile threat to its
    neighbors.
    2. Define a new Concept of 21st Century Deterrence
        In a Cold War world of a single overwhelming Soviet military
    threat, deterrence could be based in large measure on the threat of
    retaliation by offensive nuclear forces. With a post-Communist Russia
    no longer a global threat to U.S. interests, there is a real question
    about the continued requirement for this concept of deterrence as to
    Russia. With respect to the rest of the 21st century world, even more
    questions can be raised.
        A principal U.S. national security concern is to keep countries
    like North Korea and Iraq from threatening U.S. regional allies, vital
    U.S. interests, or critical resources. To deter or defend against this
    challenge, the United States and its allies must be capable of bringing
    conventional military power into a region and of using it against a
    threatening state if necessary. The principal threat to this ability is
    WMD directed against U.S. military forces and allies in the region--and
    against the U.S. homeland, in hopes that a U.S. President will be
    deterred from putting U.S. forces into the region or using them against
    the offending country.
        It is an open question whether the threat of even nuclear
    retaliation represents a credible deterrent to the use of WMD in this
    context. Is a regime as unstable and paranoid as the North Korean
    leadership susceptible to ``rational'' deterrence? How credible is the
    threat of nuclear retaliation against even states like North Korea and
    Iraq--especially if they were to use WMD not against the U.S. but a
    U.S. ally? Would we really respond to a chemical weapon attack on a
    U.S. ally with U.S. nuclear weapons? To a chemical attack even on U.S.
    forward deployed forces?
        There is still a role for deterrence by threat of retaliation--even
    nuclear retaliation: to help deter a North Korea from using its
    overwhelming conventional military capability against South Korean and
    U.S. forces; to help dissuade Saddam Hussein from using chemical and
    biological weapons such as in the Gulf War. For this purpose, however,
    the United States does not need anything like the number of deployed
    nuclear weapons that it had during the Cold War. But it increasingly
    needs to enhance deterrence by coupling the threat of retaliation with
    the ability to deny an opponent the benefit of any WMD capability. This
    is the contribution that active defenses (such as ballistic missile
    defense) and other measures can make to deterrence.
        The United States needs to develop a concept for deterrence in the
    21st century based on both offensive and defensive forces, on a balance
    between threat of retaliation and ability to deny, on a combination of
    dissuasion, defense, and counterforce. A great deal of thinking is
    required to develop this concept. But it should already be influencing
    U.S. national security strategy and policy. It can help support the
    case for ballistic missile defense.
    3. Propose to Russia a ``Package Deal'' on Nuclear Forces and Deployed
            Defenses
        This concept of deterrence based on a mix of offensive and
    defensive forces also makes sense as an approach to Russia's own
    national security requirements. It would permit Russia to reduce the
    number of its nuclear forces to a level that it could sustain
    economically while still maintaining parity with the United States. It
    would mark a return to the more traditional Russian emphasis on
    defensive forces.
        To operationalize this concept, the United States should propose to
    Russia a ``package deal'' coupling a significant reduction in the
    numerical ceilings in the START II Treaty with a revision of the ABM
    Treaty to permit the deployment of numerically limited but still
    capable ballistic missile defenses protecting the territory of the two
    nations. The theater missile defenses of the two sides should remain
    unconstrained.
        Further analytical work would be required to determine the proper
    level for strategic nuclear forces of the two sides. The establishment
    of any such level would also have to be contingent upon no significant
    increase in the forces of other nuclear weapons states (particularly
    chemical) that might threaten either country. But the level might be
    expected to be significantly below the 2,500 level set as a target for
    START III.
        Similar analysis would be required to determine the nature of the
    limits to be contained in an amended ABM Treaty. But it is fully
    expected that the national missile defense system that could be
    deployed by either country under these limits would not undermine the
    credibility or effectiveness of either the U.S. or Russian strategic
    nuclear deterrents even at reduced levels. The U.S. should insure that
    this is also true for the French and U.K. strategic deterrents, which
    are likely to represent a much more sophisticated capability than can
    be handled by the current U.S. national missile defense system design.
        While such a ``package'' approach would reduce the economic burden
    of Russia's nuclear forces, it could mean a significant new economic
    burden for Russia in the form of ballistic missile defense deployments.
    Ironically, however, Russia already maintains the world's only
    operating ABM system, still has extensive air defenses, and produces
    its own theater missile defense systems.
        Still, the United States could consider as part of the ``package
    deal'' the possibility of cooperative efforts in the field of ballistic
    missile defense--as part of a comprehensive global strategy involving
    U.S. allies and other countries in dealing with WMD and the means to
    deliver them. Such potential cooperation--again, also involving U.S.
    friends and allies--might include:

       Expanded ballistic missile launch notification, sharing of
            sensor early warning data on ballistic missile launches, and a
            joint ballistic missile warning center.
       Interoperable theater missile defense systems--the U.S. PAC
            III and the Russian S300--that could be offered for sale in
            tandem as agreed between the two countries by a U.S./Russian
            joint venture to countries threatened by proliferating
            neighbors. (This could both provide an important contribution
            to a comprehensive global WMD strategy and offer U.S. support
            for Russian access to a legitimate export market for its TMD
            systems.)
       A possible U.S./Russian joint venture to develop a ground-
            based national missile defense system that the U.S., its
            allies, and Russia could deploy, thereby assisting Russia in
            meeting its own needs for ballistic missile defenses.

        This latter proposal raises the controversial issue of sharing of
    ballistic missile defense technology with the Russians. This is not a
    new proposal. President Ronald Reagan offered to share just such
    technology with the Soviet Union as part of his SDI initiative, and the
    Bush Administration defined several joint development activities to be
    pursued by U.S. and Russian scientists in the field of ballistic
    missile defense.
        Given the number of strategic ballistic missiles that the Russians
    would continue to possess, they would not need to be able
    technologically to defeat a U.S. national missile defense system but
    could simply overwhelm it. Perhaps a greater risk is that the Russians
    might provide critical technological information to countries against
    which the U.S. system really was directed, such as Iraq or North Korea.
    The issue warrants greater study. But such a technology sharing program
    with Russia would help to rebut the argument that by pursuing a
    national missile defense program the United States was simply seeking
    unilateral advantage over Russia.
        Thank you for your time and attention.

        Senator Hagel. Mr. Hadley, thank you very much.
        Mr. Smith.

    STATEMENT OF HON. DAVID J. SMITH, FORMER CHIEF U.S. NEGOTIATOR
      TO THE DEFENSE AND SPACE TALKS; PRESIDENT, GLOBAL HORIZONS
                          INC., ANNANDALE, VA

        Ambassador Smith. Mr. Chairman, thank you very much for
    inviting me. I would also like to thank you particularly for
    recalling my service here at the committee. Unfortunately, we
    were dealing with many of the same issues on the ABM Treaty
    when I was a staffer here in the mid-1980's, and it is a shame
    that we cannot get over that.
        Second, I would like to say that I would wholeheartedly
    associate myself with your remarks at the outset. I think you
    are absolutely right, and I hope that my statement here will
    perhaps reinforce some of the points which you have made.
        Your staff has asked me to take a look at a rather long and
    complicated list of issues, and I have put together a fairly
    comprehensive statement. With your permission, Mr. Chairman, I
    would like to submit it for the record and summarize what I
    have to say.
        Senator Hagel. It will be included in the record.
        Ambassador Smith. Thank you, Mr. Chairman.
        My remarks this morning will focus on five areas, and I
    would like to take them in turn.
        First, while it has been said both by my friend, Mr.
    Hadley, and by yourself at the outset, I think it is important
    to set the stage. I think it is very important the United
    States proceed apace with national missile defense. That is the
    first point that I think lays the groundwork for everything
    else I have to say.
        I would refer to the July 15, 1998 report of the bipartisan
    Rumsfeld Commission, and I will not go over all of their
    conclusions, but I think two of them bear repeating.
        One is that concerted efforts by a number of overtly or
    potentially hostile nations to acquire ballistic missiles with
    biological or nuclear payloads pose a growing threat to the
    United States. It seems to me that that is about all we need to
    conclude that we have a problem here and we need to do
    something about it.
        The second conclusion that I think ought to be
    highlighted--and I do not think it has gotten enough attention
    since the commission's report was published--is that plausible
    scenarios include rebasing or transfer of operational missiles,
    sea and air-launch options. The implications of that are clear.
    That means that the system that we deploy tomorrow is not going
    to be good enough the day after tomorrow. It is like anything
    else in human history. I do not know why we should be so
    shocked, but the fact is we need to start thinking about what
    we are going to do next.
        Now, if the Rumsfeld Commission was not enough, recall that
    not 6 weeks after the Rumsfeld Commission issued its report,
    the North Koreans gave us a practical demonstration with the
    launch of their Taepo Dong-1. This overflew Japan on August 31,
    1998. And let us remember, it was a three-stage missile. Our
    intelligence community was shocked that it was a three-stage
    missile, and one of those stages was solid fuel. This is a
    broke, hermetic State that has managed to go from a basic Scud
    infrastructure to building a three-stage missile, including
    solid fuel technology. I think we better watch out out there.
        Mr. Chairman, it seems to me that there remains no doubt
    that a ballistic missile threat to the United States is
    developing rapidly, nor is there any doubt that national
    missile defense is the right answer. And I offer you three
    reasons.
        The first is the most basic. ``Security against foreign
    danger,'' wrote James Madison in Federalist Number 41, ``is one
    of the primitive objects of civil society, an avowed and
    essential object of the American Union.'' Every American
    citizen should have the defense that our technology and our
    wealth can afford.
        The second reason for national missile defense is
    geopolitical. Now, there are dedicated opponents of national
    missile defense who will revel in telling you that why would
    anybody go to ballistic missiles when there are 100 other ways
    someone could harm the United States. And, of course, there are
    100 other ways someone could harm the United States. We have
    seen embassy bombings in Dar-es-Salaam and Nairobi. We have had
    some homegrown problems here in the United States. Clearly
    there are ways to do harm to the United States and to
    Americans. That is terrorism. We need to make the distinction
    between terrorism and geopolitical tools, and ballistic
    missiles are geopolitical tools.
        The Rumsfeld Commission makes it very clear that there are
    plenty of countries out there who are willing to spend their
    scarce resources on developing ballistic missiles. Now, it is
    unlikely those countries are doing that just to create some
    kind of a space-age car bomb. The fact is they see some other
    use, and the use they see is they want to create an
    asymmetrical capability with which to threaten the United
    States, frankly to keep us from projecting our power into their
    regions. They want to affect our calculations. It is a
    geopolitical reason.
        If somebody wants to throw a suitcase bomb at us, obviously
    they can do that, and our Government ought to be working on
    that. Do not misunderstand. But let us not confuse the two
    issues.
        The final reason I think we need to proceed with national
    missile defense is to echo what my friend, Mr. Hadley, has
    said, to complement our nonproliferation efforts. It seems to
    me that if we make clear to countries who are thinking about
    getting into this asymmetrical game, that the United States is
    going to use its technology and its wealth to thwart their
    plans, they might think twice. We might dissuade them. Not all
    of them, but it seems to me that it is a necessary ingredient
    of a serious nonproliferation effort.
        Now, I think those are good, solid reasons why we need to
    proceed with national missile defense. But we have a problem.
    The fact is that national missile defense is blocked by the ABM
    Treaty as it stands today. Mr. Chairman, there will be people
    who will come in here and tell you that that is not the case,
    that they have found ways to make things treaty compliant. The
    three of us know exactly how the United States makes treaty
    compliance decisions for its own behavior, and let me assure
    you that in the end of the day, there is no such thing as a
    treaty compliant national missile defense deployment.
        Let me be clear. The only thing that we can deploy is a
    second Safeguard system from the 1960's. That is all we can
    deploy. We need to understand that even the so-called C-1
    architecture, even confined to 20 missiles, even deployed at
    Grand Forks, North Dakota is going to involve some kind of a
    negotiation with the Russians. There is simply no such thing as
    a treaty compliant NMD.
        Let me give you three of the issues that will come up in
    these kinds of discussions on the ABM Treaty.
        The first is territorial defense. It is found in article I.
    The root of the problem here is this. Over the years, when it
    did not look like we were going to do much, we developed a kind
    of shorthand, a common parlance with which we said what the ABM
    Treaty permits. It permits 100 interceptors at one site. And
    that shorthand grew up as lingua franca. That is what we
    decided it meant. Well, we were not really doing much, and so
    it was a good textbook description, but there are some
    problems.
        The notion that there is a treaty compliant defense forgets
    that the 100 interceptors at one site was not an object in
    itself. It was a tool to implement the treaty's object and
    purpose, and the treaty's object and purpose is to prohibit a
    territorial defense. Now, that stands in stark contrast with
    the stated purpose of our current deployment readiness program
    for national missile defense, and it is--I quote--``The NMD
    system will provide defense of all territory of all the 50
    States.''
        Now, anyone who has stood in front of a TV camera or run
    for elected office, as you have, Mr. Chairman, would understand
    that we might be able to weave other arguments around this, but
    it is going to be a real tough sell to stand up and say that
    territorial defense is not territorial defense. I can do it but
    not in a 15-second sound bite. It is not going to go over well.
        Moreover, when you get in the room with the Russians, they
    have absolutely no obligation or any interest to make this easy
    for us. So, when you hear administration witnesses telling you
    we are just going to go over and get the Russians to nod their
    heads up and down to something like this, it is not going to be
    that easy.
        The second issue that is going to arise on any NMD
    deployment under the ABM Treaty is the issue of radars. Now,
    this may sound elementary, but I think it really does bear
    repeating. The world is round. The United States territory is
    rather large. From Calais to Key West to Kure to Attu and back
    again, it is a large piece of that globe. And electromagnetic
    waves travel in straight lines. The reason that the ABM Treaty
    requires that the one, single ABM radar be deployed in a 150-
    kilometer radius surrounding your launch site was to use those
    elementary physical principles to make sure you only had a
    territorial defense. It is not a game to see if American
    scientists can somehow defend the country from North Dakota.
    They cannot, by the way. But that is not the purpose of it. The
    purpose is to keep that one radar in North Dakota, knowing that
    the electromagnetic waves have to go straight so that you
    cannot get out there and defend the whole territory.
        It is not that easy just to say, oh, it is a matter of a
    radar. Once again, I hear administration witnesses saying
    things like that. We will just get the Russians to agree to the
    radar. They are going to go right back to the purpose of the
    treaty, and the reason for the prohibitions on the radars is
    the object and purpose of the treaty: to prevent a territorial
    defense.
        What I am really getting at here is there is no such thing
    as a modest treaty amendment.
        Now, the third issue that is going to arise is where do you
    put the NMD system. We have a problem even if you want to go to
    Grand Forks. The ABM Treaty requires that your ABM system be in
    a 150-kilometer radius that contains ballistic missiles. Well,
    the idea here was--these are the concepts of mutual assured
    destruction and crisis stability--that if you defend just the
    missile field, or just the national command authority, you
    assure stability because you are assuring some kind of survival
    for a second strike capability. If you defend the entire
    territory, that becomes destabilizing. That is why the missile
    defense is supposed to be in either a missile field or the
    national capital. There is a reason for that.
        Well, guess what? We have shut down our missile field at
    Grand Forks. The BRAC wanted it closed. It is shut down and the
    missiles have been moved to Malmstrom, Montana. There are no
    missiles at Grand Forks.
        Now, what I am hearing now is the Pentagon has come up with
    the latest plan that they are going to draw a new circle which
    will take in the eastern-most silos that belong to Minot Air
    Force Base, draw their 150-kilometer circle, and say that that
    is the Grand Forks ABM deployment area. It just seems to me it
    is too clever by half, Mr. Chairman. If the Russians did
    something like that, we would be raising it with them. I do not
    think that is going to float in the American compliance
    context.
        Finally, let me note that coverage of all 50 States, if you
    are going to do that, really requires a deployment from a
    single site in Alaska, not in Grand Forks, North Dakota. It is
    my understanding that consequently that is what the
    administration is currently--and I stress currently--planning
    to do. Now, it should go without saying that if you are going
    to put your single site in Alaska, everything I said does not
    matter. You have to change article III because you cannot now
    put your single site in Alaska.
        Multiple fixed ground base sites, sea or space-based
    national missile defense, the development of sea or space-based
    national missile defense, and advanced sensors which could
    substitute for what the treaty calls an ABM radar are
    altogether prohibited by the ABM Treaty as it stands today.
        Mr. Chairman, basically we have an urgent dilemma. What I
    have tried to set up before you is this. We have to do national
    missile defense. The ABM Treaty, as it stands today, blocks
    national missile defense. So, what do we do?
        Frankly, Mr. Chairman, continued U.S. adherence to the 1972
    ABM Treaty is of no strategic value to the United States. The
    ABM Treaty is not a cornerstone of stability for the new
    millennium. It is a delicate diplomatic problem for today.
        Now, that said, I wholeheartedly agree with those who say
    that our security relationship with Russia is important, that
    Russia is in a crucial transition, and I do not see any reason
    needlessly to provoke them into some kind of a diplomatic rift
    over the ABM Treaty. I favor trying to negotiate something,
    although I recognize, as Mr. Hadley pointed out, today that is
    not going to be easy. But the fact is the date at which we are
    going to need some ABM Treaty modifications in place is fast
    approaching. In fact, it is in about 18 months. That is not me
    speaking. That is the schedule of the Clinton administration's
    national missile defense program. We have got to have something
    done in about 18 months.
        There were better times as Mr. Hadley pointed out. There
    were times when we had better relations with Russia. There were
    times when there was less confusion in Moscow. There were times
    when there was no Kosovo crisis. There were times when we had
    more time. Unfortunately, the administration abandoned the
    Ross-Mamedov talks in 1993, and 6 years during which we could
    have been talking have been squandered.
        I think it is still worth a shot, but it is going to be
    difficult. As a former negotiator, let me offer some points on
    how to do it if we do it.
        First, the United States should carefully resolve what
    national missile defense it needs. And there I mean deployment
    of the near-term system, as well as development and testing of
    follow-on systems. We should then craft an integral negotiating
    position accordingly and then approach the Russians. I will not
    go into it in detail here, but I do have some ideas on what it
    is we ought to be negotiating if you are interested when we get
    to questions.
        The one thing I want to say, though, is the worst thing we
    could do is to do this piecemeal and run off to Moscow and
    negotiate some kind of a deal, pay some kind of a price, just
    to get them to nod their heads up and down to the C-1 or C-2
    architecture. That is the absolute worst negotiating mistake we
    could make.
        Second, we need to announce an NMD deployment decision now.
        Third, we need to embark upon a vigorous research,
    development, and testing program for national missile defense
    systems which may follow our initial fixed, ground-based
    deployment.
        Fourth, in addition to our deployment announcement, we need
    to realize that we do have some leverage. The fact is that
    Russia's economic plight is sending their strategic forces down
    regardless of what we do. They would like an agreement for
    future reduction of strategic offensive forces. This is
    different from the cold war. They want an agreement for further
    reductions. We can get creative, roll this all into one
    negotiation. We may actually be able to turn this into a win-
    win because there may be some other things the Russians would
    like, like real cooperation on early warning or cooperation on
    theater missile defense. This does not have to be just the
    United States getting its way. There are things the Russians
    want. We could come to an agreement.
        Fifth, politely, reasonably, but firmly we have to put a
    time limit on negotiations.
        And sixth, we should make no commitments on longevity of
    the agreement beyond the time during which we think we can live
    with what it is we have negotiated.
        Now, I cannot tell you what the outcome is going to be, Mr.
    Chairman. I think it is worth a try. If the effort comes to
    naught, at least we can say we have prepared the way by leaving
    no stone unturned. I do not believe the American political
    system will do any less than that. I think we have got to give
    a try on this negotiation. I cannot guarantee you that in the
    end we may not be faced with the stark reality of having to
    withdraw from the treaty. We may.
        Now, there is a myth here that I would like to explode, and
    that is that somehow deploying defenses, negotiating on the ABM
    Treaty somehow ipso facto makes agreements for reductions of
    strategic offensive weapons go away. It is simply not the case.
    As I have stated, the Russians have a greater interest than we
    do right now in reducing nuclear weapons and doing that in a
    negotiated agreement with the United States. It is not clear
    that if we go into a negotiation, we take their security
    concerns into account, we offer them something that maybe they
    perceive a stake in, and we can have some kind of a negotiation
    to go down, which is right now their paramount concern is that
    we go down equally, that we cannot have some kind of an
    agreement here. I think we need to get over this myth that just
    because the Russians scream and say that is the end of START,
    that somehow that necessarily needs to be true.
        My guess is that if we were really serious, very much like
    NATO expansion, they will scream till the moment they realize
    we are really serious, and then they will deal with reality and
    they will try and negotiate something.
        It seems to me that is a pretty good foundation for the
    kind of talks that we ought to have here.
        Now, since I am suggesting that we have some kind of talks,
    I think I have to tie up one other loose end, and that is the
    agreements on the ABM Treaty signed at New York on September
    26, 1997 on succession and demarcation.
        These agreements should have been sent to the Senate for
    advice and consent, and in his absence, I would like to commend
    the distinguished chairman of this committee for insisting upon
    that. Assuming that you are successful, Mr. Chairman, in that
    venture, I respectfully suggest that these agreements are not
    in the interest of the United States and the Senate should
    reject them. I will offer you three main objections. Once
    again, I will summarize and if you care to get into it in
    questions, I would be glad to do that.
        First, the memorandum of understanding adding Belarus,
    Kazakhstan, and Ukraine as parties to the ABM Treaty is a
    strategic absurdity. Whatever you think of the ABM Treaty's
    merits, you have to agree that the ABM Treaty was designed to
    regulate a particular relationship between the United States
    and the Soviet Union during the cold war. We have no strategic
    relationship with Kazakhstan. I have the utmost respect for the
    people of Kazakhstan, but we do not have a strategic
    relationship with that country.
        My second concern is the New York package not only fails to
    achieve so-called demarcation between ABM Treaty limited ABM
    systems and unlimited TMD systems. It actually leaves matters
    worse than they had been. I will not go into all the details,
    but the fact is that we have gotten ourselves into a literal
    quagmire and we do not have demarcation. If you are an
    interceptor with a velocity between 3 kilometers per second and
    5.5 kilometers per second, the fact is you still have to go
    through the same old U.S. internal compliance review, now
    putting all of this stuff that the New York agreements have
    superimposed into the mix. And if you have to go and debate
    this with anybody in the SCC, you now not only have to discuss
    it with Russia, you also have to discuss it with Kazakhstan,
    Belarus, and Ukraine.
        Finally, Mr. Chairman, my third objection to the seven
    documents in the New York package is that they form literally a
    new TMD treaty, in all but name. Once again, I will not go into
    the details, but if you add up all of the requirements, all of
    the declarations, it clearly becomes a whole set of new
    obligations, a literal obstacle course for U.S. theater--I
    stress theater--missile defense which has nothing to do with
    the ABM Treaty.
        Mr. Chairman, I know I have gone on at some length. My
    conclusion is very brief.
        Today it is imperative that the United States proceed apace
    with national missile defense, and by that I mean deployment of
    the near-term system and research, development, and testing of
    follow-on systems. These are actions blocked by the 1972 ABM
    Treaty as it stands today. We have two choices: withdraw in
    accordance with article XV or seek to negotiate the changes we
    need--and I emphasize the changes we need--in accordance with
    article XIV. I recommend that we attempt to negotiate.
        Thank you, Mr. Chairman.
        [The prepared statement of Ambassador Smith follows:]
                   Prepared Statement of Hon. David J. Smith
        Mr. Chairman: It is indeed an honor to appear before the Committee
    on Foreign Relations which I once served with great pride. I thank you
    and your colleagues for inviting me to share my views on missile
    defense and the ABM Treaty. In accordance with your invitation, my
    remarks this morning will address five key points:
        --First, it is imperative that the United States proceed apace with
    National Missile Defense (NMD) to protect every American citizen,
    maintain freedom of action in defense of our worldwide interests, and
    complement our non proliferation efforts.
        --Second, the ABM Treaty as it stands today blocks even the most
    modest NMD--there is no such thing as Treaty compliant NMD.
        --Third, we face an urgent dilemma. To proceed with NMD, we must
    soon realize at least substantial modifications to the 1972 ABM Treaty.
    Frankly, continued U.S. adherence to the 1972 ABM Treaty is of no
    strategic value to the U.S. That said, however, it is in the interest
    of the United States to attempt to negotiate such ABM Treaty changes as
    we need. As a former negotiator, I offer six recommendations:

              1. Carefully resolve what NMD we need.
              2. Announce an NMD deployment decision now.
              3. Embark upon a vigorous research, development and testing
            program for NMD systems which may follow our initial fixed,
            ground based deployment.
              4. Recognize that we have considerable leverage--carrots and
            sticks--in a broad strategic negotiation which includes ABM
            Treaty issues.
              5. Set a time limit on negotiations.
              6. Make no commitments beyond the period during which we
            think we can live with what we negotiate.

        --Continuing with the five points of my testimony, fourth,
    substantial modifications to the 1972 ABM Treaty need not inexorably
    halt agreements to reduce strategic offensive weapons, consistent with
    U.S. interests.
        --Fifth, the ABM Treaty agreements signed at New York on September
    26, 1997--on succession and demarcation--are not in the interest of the
    United States. These agreements should have been sent to the Senate for
    Advice and Consent and I commend the distinguished Chairman of this
    Committee for insisting upon it. Assuming success on that count, I
    respectfully urge the Senate to reject them.
        I shall address each point in turn.
                      the u.s. must proceed apace with nmd
        On July 15, 1998 the bipartisan Commission to Assess the Ballistic
    Missile Threat to the United States chaired by former Secretary of
    Defense Donald H. Rumsfeld issued a watershed report. The Commission's
    principal findings bear emphasis in the context of this hearing:

      --``Concerted efforts by a number of overtly or potentially hostile
            nations to acquire ballistic missiles with biological or
            nuclear payloads pose a growing threat to the United States . .
            . to inflict major destruction on the U.S. within about five
            years of a decision to acquire such a capability.
      --``During several of those years, the U.S. might not be aware that
            such a decision had been made.
      --``The threat to the U.S. posed by these emerging capabilities is
            broader, more mature and evolving more rapidly than has been
            reported in estimates and reports by the Intelligence
            Community.
      --``The Intelligence Community's ability to provide timely and
            accurate estimates of ballistic missile threats to the U.S. is
            eroding.
      --``Plausible scenarios [include] re-basing or transfer of
            operational missiles, sea and air-launch options.
      --``The U.S. might well have little or no warning before operational
            deployment.''

        If the Rumsfeld Commission left any doubt about the imminence of
    the ballistic missile threat, the final jolt had to be from the roar of
    North Korea's Taepo Dong-1 (TD-1) missile as it overflew Japan on
    August 31, 1998. Even if we accept Pyongyang's explanation that the
    rocket was a space launch vehicle, it is less than a hop, skip and jump
    from space launch to ICBM capability. Our attention should not be
    diverted from the startling news that the North Korean missile
    consisted of three stages: liquid fuel first and second stages, which
    the Intelligence Community had thought to be the entire TD-1, plus a
    solid fuel third stage. Never mind that the test was not fully
    successful--beginning with just a SCUD-based single stage missile
    infrastructure, hermetic and destitute North Korea has flight tested a
    three stage missile with solid fuel technology! A TD-1 with a small
    payload could reach Alaska, and North Korea is known already to be
    working on a TD-2.
        Mr. Chairman, there remains no doubt that a ballistic missile
    threat to the U.S. is developing rapidly, or that NMD is the right
    answer for three reasons.
        The first is the most basic. ``Security against foreign danger,''
    wrote James Madison in Federalist Number 41, ``is one of the primitive
    objects of civil society . . . an avowed and essential object of the
    American Union.'' Every American citizen, from sea to shining sea,
    should have such defense as our technology and wealth can afford.
        The second reason for NMD is geopolitical. Dedicated NMD opponents
    revel in telling us that there are ways easier than ballistic missiles
    to hurt the United States. Why, they ask, would an enemy resort to
    ballistic missiles? In light of some of the recent violence which has
    gripped our nation, this question deserves particular attention.
        Last year, attacks upon U.S. embassies in Nairobi and Dar-es-Salaam
    reminded us that simple bombs aboard trucks, cars or vans can be deadly
    terror weapons. A home grown kook took the lives of two Capitol Police
    officers, reminding us that no security system is risk free. And just a
    few weeks ago, our nation was forced to look into its very soul by two
    troubled teenagers in Littleton, Colorado. Unfortunately, Mr. Chairman,
    whether directed by trenchies, Aum Shinrikyo, Osama Bin Laden or some
    hostile state, there could also be suitcase bombs, vials of anthrax,
    malicious computer hackers, commonplace airplane hijackings, ship
    boardings and automatic weapons spraying busy city streets. These are
    all perils against which a responsible government should guard its
    people. But they are tools of terrorism, not of geopolitical strategy--
    and we must not confuse the two.
        We must not confuse them because clearly our adversaries do not. As
    the Rumsfeld Commission detailed, and as the North Korean TD-1 flight
    underscored, there are plenty of countries willing to devote scarce
    resources to building ballistic missiles. Since it is unlikely they
    plan to use these as space age car bombs, they must calculate some
    other benefit. Indeed they do. Regimes which perceive their interests
    at odds with ours want ballistic missiles to wield in regional crises
    to alter America's calculation of the costs and benefits of
    involvement--in other words, to keep us out.
        A remark of Chinese General Xiong Guang Kai during the 1996 Taiwan
    Strait crisis is instructive in this regard. The United States would
    not defend Taiwan, argued Xiong, because China would ``rain nuclear
    bombs on Los Angeles.'' No two crises are identical and the outcome of
    any future crisis will certainly be situation dependent, but--make no
    mistake--a threat to the American homeland would indeed alter our cost-
    benefit calculations. Xiong's remark, and others like it by Saddam
    Hussein and Muammar Qaddafi, reflect not a reckless obsession to hurt
    America but, in the words of William R. Graham and Keith B. Payne--both
    recent witnesses before this Committee--``a well thought out strategy
    to `trump' the West's capability to project overwhelming conventional
    power into their regions.''
        Anyone who sees the global power projection capability of America
    and its allies and friends as stabilizing should see all missile
    defense--theater and national--as stabilizing. Just as we do not want
    Japan intimidated by North Korean missiles, neither can we tolerate the
    same tactics applied directly to the United States by China, North
    Korea, Iran or whomever. And best way to thwart such tactics is to
    ``trump'' them with NMD.
        The final reason I shall mention today for the U.S. to proceed now
    with a robust NMD program is to complement our non proliferation
    efforts. Let us not forget that we are the world's only superpower.
    Enemies fear our military might, our training, our experience, our
    wealth and, most of all, our technology. They know they cannot take us
    on on our terms, so they reach for asymmetrical capabilities such as
    long range missiles to alter the playing field. So long as we remain
    undefended, the price of entry to the club of countries able to affect
    U.S. calculations is but a single long range missile with a nuclear or
    biological payload. And as long we appear likely to remain undefended,
    a lot of countries will consider joining that club. On the other hand,
    if we send an unequivocal signal that we will apply our technology and
    wealth to thwarting this particular asymmetrical threat, some countries
    will be dissuaded from embarking upon or continuing long range missile
    programs. Like any non proliferation effort, this will not be 100%
    effective, but it would be a potent dimension of a serious non
    proliferation effort.
        Mr. Chairman, throughout the Cold War, the U.S. maintained
    deterrence with the Soviet Union not only with the force in being, but
    also with the so called ``R&D deterrent.'' Moscow's ambitions were
    checked by the certainty that America's best and brightest would be a
    step ahead at just about every turn. Ultimately, it was the ``R&D
    deterrent'' which drove Marshall Akhromeyev and the Soviet military to
    despair, a major contributing factor to the implosion of the Soviet
    Union. It is time we reclaim our confidence and apply American
    strengths to the challenges of the next century.
        These are three solid reasons why the U.S. must proceed apace with
    NMD. Unfortunately, the ABM Treaty as it stands today blocks even the
    most modest NMD.
                 the abm treaty blocks national missile defense
        Mr. Chairman, there are those who assert otherwise, but
    understanding the way the U.S. goes about decisions on its own Treaty
    compliance, I assure you there is no such thing as an ABM Treaty
    compliant National--and I stress National--Missile Defense. About the
    only system we can deploy under the ABM Treaty as it stands today would
    be a Safeguard II. Let me be clear. Even the so called C-1 architecture
    of 20 NMD interceptors, even deployed at Grand Forks, North Dakota,
    would require negotiation with Russia of some clarifications,
    understandings or amendments. Today, I will outline for you the three
    biggest ABM Treaty issues which any NMD deployment will raise:
    territorial defense, radars and deployment area.
        The root of the territorial defense issue is the shorthand
    description which developed over the years of what the ABM Treaty
    permits: 100 interceptors at one site. As the controversy over SDI
    raged, people of good will sought a consensual path forward with a
    Treaty compliant system which, applying the shorthand, came to mean up
    to 100 interceptors at one site. In 1988, the distinguished past
    Chairman of the Armed Services Committee, Senator Nunn, recognized that
    a space based version of his Accidental Launch Protection System (ALPS)
    would require ABM Treaty amendment, but he also spoke of defensive
    deployments that ``might be possible within the terms of the treaty or,
    at most, require a modest amendment.'' A few years later, the Missile
    Defense Act of 1991 called for a ``. . . cost effective, operationally
    effective and ABM Treaty compliant ABM system at a single site . . .''.
        President Clinton vetoed the FY-96 Defense Authorization Act and
    threatened to veto the 1996 Defend America Act on the grounds that
    these bills would have set the United States on a path to violate the
    ABM Treaty. At the same time, Administration spokespersons claimed that
    their so called ``3 + 3'' NMD program would not violate the ABM Treaty.
    More recently, the Administration has realized that while ``3 + 3'', or
    now ``3 + 5'', development can probably be carried out in compliance
    with the Treaty, deployment would require some amendment.
        The fact is that if we ever proceed with the ``plus'' part of ``3 +
    5'', significant amendments or understandings to the ABM Treaty will
    have to be sought. The notion of Treaty compliant NMD ignores that the
    100/1 limitation was not an object in itself, but a tool to implement
    the Treaty's object and purpose as set forth in Article I: ``. . . not
    to deploy ABM systems for the defense of the territory . . .'' Thus the
    objective of our current NMD deployment readiness program--``the NMD
    system will provide defense of all territory on the 50 states''--stands
    in apparent contrast to the Treaty's object and purpose.
        The question, then, is not the technical one of whether the
    territory of the United States can be defended with 100 interceptors
    from one site in North Dakota (it cannot, by the way). Rather, the
    relevant ABM Treaty question is whether limited defense of the entire
    territory--even with 100 interceptors at one site--is territorial
    defense.
        The traditional U.S. view, consistently held across
    administrations, is that Article I is hortatory, establishing the
    framework for the substantive provisions that follow. Thus, in the U.S.
    view, a side would have to violate some provision of Articles Ill, V,
    VI or IX in order to violate Article I. In other words, Articles Ill,
    V, VI and IX specify what actions would be technologically necessary
    for a side to move toward a territorial defense. If this traditional
    U.S. view is maintained and sustained with the Russians, the issue of
    territorial defense would not arise.
        But this is uncharted water. The issue of territorial defense has
    never arisen in a major way because, until now, the United States had
    not been discussing deployment of an operational ABM system. Although
    the Soviets raised Article I a number of times in connection with our
    SDI program, we were always able to respond, as we did with the 1984
    Homing Overlay Experiment (HOE), that the activity in question was a
    technology demonstration, not deployment of an operational system. This
    time, the U.S. would be deploying an operational system whose stated
    purpose is to cover the entire territory.
        I do not deny that a sound argument can be made that territorial
    defense of the type we are now contemplating would not be a territorial
    defense which would impinge upon the object and purpose of the ABM
    Treaty. That is, a thin defense against third countries or accidental
    or unauthorized launch would not detract from a Russian second strike
    capability, even under projected START Ill offensive force levels.
    Nevertheless, anyone who has stood in front of TV cameras or run for
    elected office will appreciate that arguing that ``territorial defense
    is not territorial defense'' is going to be a tough sell. This may be a
    hurdle which can be overcome, however, it will require the U.S. at
    least to seek some clarification or understanding in the Standing
    Consultative Commission (SCC), the ABM Treaty's joint implementation
    body. And the Russians have neither an obligation nor an interest in
    making this easy for us.
        There is one further liability which NMD raises in the context of
    territorial defense. ABM Treaty Article I also commits us ``. . . not
    to provide a base for [territorial] defense . . .'' If the thin NMD
    system itself would not constitute a territorial defense in violation
    of Article I, does it lay a base for such a defense? The U.S. may
    establish that an NMD deployment of 20, or even 100, interceptors
    cannot possibly be a territorial defense in the meaning of the ABM
    Treaty, that is, a defense which could leave us invulnerable to a
    Russian retaliatory attack. However, once even a minimal NMD system is
    deployed at Grand Forks, long lead items such as radars and BM/C3 will
    be in place and interceptor missiles and Kinetic Kill Vehicles (KKVs)
    will be under production.
        There are no doubt Treaty amendments and confidence building
    measures which could address this issue, but these will have to be
    negotiated. And this is precisely my point; we are in for a negotiation
    which is going to involve the Article I issue of territorial defense.
        The second issue, radars, is intertwined with the issue of
    territorial defense. This issue is so complex and architecture
    dependent that I shall confine my remarks to a general description.The
    world is round; U.S. territory--from Calais to Key West to Kure to Attu
    and back to Calais--occupies a large bit of it; and high frequency
    electromagnetic waves travel in straight lines. By confining ABM radars
    to one 150 Km. radius ABM deployment area, the authors of the ABM
    Treaty used these elementary physical facts to implement the Treaty's
    object and purpose, that is, to prohibit a territorial defense.
        With today's technology we can do a lot more from that one site
    than we could in 1972 but, still, a single ABM radar in North Dakota
    just cannot cover the territory of the United States. Consequently,
    every candidate NMD architecture I have seen features some combination
    of upgraded Early Warning Radars (EWRs), including EWRs outside U.S.
    territory, space based sensors, X-Band radars deployed outside the ABM
    deployment area, and a highly capable sensor aboard the NMD
    interceptor. Such sensor suites don't fit into the ABM Treaty's
    framework.
        But the problem is only partly that today's technology does not
    match yesterday's Treaty terms. The greater issue is that our objective
    for today's technology does not match the object and purpose for which
    yesterday's Treaty terms were written. In other words, to proceed with
    NMD we will have to seek ABM Treaty adjustments and understandings on
    radars and these will be directly related to the issue of territorial
    defense. This will involve wrenching the Russians and the American arms
    control community from positions with which they have grown quite
    comfortable. Consequently, there will be no such thing as a ``modest''
    Treaty adjustment or understanding.
        Yet a third ABM Treaty issue is the deployment area, and this too
    is related to the issue of territorial defense. The ABM Treaty requires
    the 150 Km. radius ABM deployment area at Grand Forks to contain ICBM
    silo launchers. But the 1995 Base Closure and Realignment Commission
    (BRAC) recommended that the 321st Strategic Missile Group at Grand
    Forks AFB be deactivated and its Minuteman III missiles relocated to
    Malmstrom AFB, Montana. The missiles have now been moved, but START
    Treaty accountable silos will remain at Grand Forks for three more
    years. The Department of Defense is apparently taking the view that it
    can now locate a Grand Forks ABM deployment area within a 150 Km.
    radius circle drawn to include some missiles assigned to Minot AFB, ND.
    In a strict legal sense this may be correct. However, deactivating the
    missile field in which we have said our ABM system would be located,
    and redrawing a circle to encompass a few missiles from a different
    base to satisfy Treaty obligations could easily be portrayed as a sham
    which is not the way the U.S. complies with its legal obligations. It
    is too clever by half and we would surely question an analogous Russian
    move. Proceeding in this way would only further underscore the
    territorial defense issue.
        The idea underlying this ABM Treaty provision was that defense of a
    single missile field in order to guarantee survival of at least some
    retaliatory capability would be stabilizing, unlike territorial defense
    which was seen as destabilizing. Now, if the U.S. deploys an NMD system
    in North Dakota which is only perfunctorily related to an ICBM field,
    it must be ``up to'' something else--again, we return to the matter of
    territorial defense.
        Finally, I note that achieving coverage of all fifty states from a
    single site, particularly if the fastest emerging threat is in
    Northeast Asia, requires that single site to be in Alaska. It is my
    understanding that, consequently, the Administration's current plan
    would be to deploy our first NMD site in Alaska, if President Clinton
    decides to deploy in June, 2000. Clearly, deploying an NMD site in
    Alaska would require amendment of the Treaty's Article Ill.
        Multiple fixed ground based sites, sea or space based NMD, the
    development and testing of sea or space based NMD, and advanced sensors
    which could substitute for what the Treaty calls an ``ABM radar'' are
    altogether prohibited by the ABM Treaty as it stands today.
    we must soon realize at least substantial modifications to the 1972 abm
                                     treaty
        We face an urgent dilemma. Frankly, continued U.S. adherence to the
    1972 ABM Treaty is of no strategic value to the U.S. Setting aside
    discussion of the Treaty's value during the Cold War, we must now
    recognize that it is indeed an artifact of the Cold War. It was
    conceived to preserve deterrence and crisis stability between two
    superpowers locked in an ideological struggle which, from time to time,
    erupted into crises. Now, the Soviet Union is gone and with it the
    Marxist-Leninist ideology which was the root cause of the Cold War.
    Russia, whatever its problems or even faults, is not dominated by a
    Marxist-Leninist ideology which impels it into conflict with us across
    the globe. It does not keep twenty divisions in East Germany poised to
    strangle Berlin. It does not operate a worldwide network to spark
    conflict in places like Korea, Vietnam and Angola. Admiral Gorshkov's
    blue water navy is rusting, tied up in decaying ports. And the major
    issue for Russian strategic forces today is how to manage inevitable
    economically driven decline. Quite simply, the potential crisis which
    the ABM Treaty purported to stabilize no longer looms. The ABM Treaty
    is not a cornerstone of stability for the new millennium; it is a
    delicate diplomatic matter for today.
        That said, I wholeheartedly agree with those who say that our
    security relationship with Russia remains important, that Russia is in
    a crucial transition and that we should not needlessly provoke a
    diplomatic rift over the ABM Treaty--the Treaty remains important
    diplomatically and strategically to them. Therefore, I favor attempting
    to negotiate such changes to the ABM Treaty as the U.S. needs, although
    I recognize it will not now be easy.
        Given even the schedule of the ``3 + 5'' program, the time at which
    we will need ABM Treaty modifications in place is fast approaching.
    President Clinton has said he will decide whether to deploy in June of
    2000. For the reasons outlined above, it would be inconceivable to me
    that he would decide otherwise. Then, the kind of construction which
    would raise ABM Treaty issues would begin in mid 2001, at the start of
    the short Alaskan construction season. Understanding that our only
    alternative to negotiated modifications would be withdrawal from the
    Treaty in accordance with Article XV, requiring six months notice, we
    would have to achieve those negotiated modifications by the Fall of
    2000--about eighteen months from today. That would be a tall order in
    the best of times and these are not the best of times. The crisis in
    Kosovo has created a major rift in U.S.-Russia relations. Moreover,
    Russia faces elections to the State Duma this December and presidential
    elections in June, 2000. Soon thereafter, the U.S. faces a general
    election.
        There were once better times when there was more time to negotiate.
    Unfortunately, the Administration has squandered six years since 1993
    when it abandoned the Ross-Mamedov Talks and discussion of President
    Yeltsin's proposal for a Global Protection System.
        Still, I think an attempt at negotiation should be made. If it is,
    allow me as a former negotiator to suggest a few guidelines.
        First, the U.S. should carefully resolve what NMD it needs--
    deployment and development and testing--for the next few years, craft
    an integral negotiating position accordingly, and then approach the
    Russians. Nothing should be excluded from consideration, including
    space based defenses. Of course, the more we seek, the tougher the
    negotiation will be. On the other hand, there is no sense in seeking or
    agreeing to less than is needed. We should not conform our NMD
    requirements to the ABM Treaty or to what we expect to be
    ``negotiable.'' And the worst thing we could do is negotiate piecemeal,
    rushing off to negotiate Russian assent to, say, just the C-1 or C-2
    architecture. There will be a price to pay and we are likely to have to
    live with what we negotiate for a few years.
        Second, announce an NMD deployment decision now. Funds to support
    the decision should be put into the FYDP and the Congress should
    authorize and appropriate the funds necessary to ramp up to a
    deployment. Without these, the Russians will not recognize any urgent
    need to treat our approach seriously. This is all the more important in
    the current political turmoil in Moscow because we will have to work
    extra hard to gain their attention which is almost entirely focused on
    economics and internal power struggles.
        Third, embark upon a vigorous research, development and testing
    program for NMD systems which may follow our initial fixed, ground
    based deployment. There are no constraints on the evolution of the
    ballistic missile threat to the U.S. We should expect MIRVs, MaRVs,
    decoys, penetration aids, lower radar cross sections and higher
    velocity re entry vehicles. Moreover, a principal finding of the
    Rumsfeld Commission is that ``plausible scenarios [include] re-basing
    or transfer of operational missiles, sea and air-launch options.''
    Fixed, ground based interceptors cannot respond to such threats. We
    should not despair and be self deterred from deploying the NMD system
    we are developing and getting into the business of missile defense. But
    neither should we become complacent and neglect to prepare for the
    challenges of tomorrow. Consequently, our foreseeable development and
    testing needs must figure into careful resolution of what NMD we need
    for the next few years.
        Fourth, in addition to the NMD deployment announcement, we must
    recognize that we do have other points of leverage. Russia's economic
    plight dictates dramatic reductions in strategic forces and their
    calculus dictates a negotiated mutual reduction with the United States.
    With START II almost certainly dead, we have an opportunity to discuss
    force levels and structures appropriate for the new millennium from
    START I levels. Moreover, there may be other things Russia would like
    to have such as real early warning sharing and cooperation on theater
    missile defense. In short, creative strategic negotiations which
    include ABM Treaty issues could result in a ``win-win outcome.''
        Fifth, politely, reasonably, but firmly put a time limit on
    negotiations. The luxury of protracted talks having been squandered, we
    must now demand closure in the near term. In a sense, we could turn a
    weakness into a strength by using the current NMD schedule as a point
    of leverage.
        Sixth, while the Russians will demand some longevity for whatever
    they negotiate, we should not make any commitments beyond the period
    during which we think we can live with the new agreement. One of the
    major lessons of the ABM Treaty is that it is absolutely impossible to
    predict world events and technology a quarter century down the road.
    The ABM Treaty is already of unlimited duration so, to seek further
    changes in the future, we would again be faced with renegotiation or
    withdrawal from the Treaty. These are guarantees enough. Moreover,
    assuming we really negotiate for what we need over the next few years,
    I believe there is an excellent chance that by the time we need to face
    the issue again, both sides will have moved to a whole new strategic
    paradigm in which we no longer base our security on threats of mutual
    nuclear annihilation. The ABM Treaty just won't matter any more.
        I cannot tell you what the outcome of a negotiation on the ABM
    Treaty might be. In the end, if a negotiating effort comes to nought
    and we are faced with withdrawal from the ABM Treaty, at least we will
    have prepared the way by leaving no stone unturned. We will demand no
    less of ourselves.
         modifications to the 1972 abm treaty need not inexorably halt
                 agreements to reduce strategic nuclear weapons
        One myth which has dogged NMD for years is that U.S. missile
    defenses beyond the limits of the ABM Treaty as it stands today will
    inexorably bring agreements to reduce strategic offensive arms to a
    screeching halt. This need not be the case. The ABM Treaty's Article
    XIV provides for amendments--otherwise how could the Treaty's authors
    have purported to write a document of ``unlimited duration?'' If the
    U.S. has amendments to propose, we should offer them. Russia has an
    obligation to engage seriously on our proposals although, of course, no
    obligation to agree. However, I would suggest that once it becomes
    clear that U.S. NMD is inevitable, Russia--as it did with NATO
    expansion--will douse the rhetoric and deal with reality. This is
    especially so if we are willing to negotiate, take Russian security
    concerns into account and offer benefits in which they perceive a
    stake. Today, Russian strategic offensive forces are declining for
    economic reasons--some authoritative Russians have even suggested to
    the hundreds of warheads. Different from Cold War days, Russia now
    wants agreed reductions more than we. Indeed, START II is almost
    certainly dead, languishing in the State Duma not over concerns about
    American NMD, but over concerns about Russian offensive force
    structure. This would appear to be about as promising a foundation for
    talks as we are likely to get.
       the new york abm treaty agreements are not in the interest of the
                                 united states
        Since I have recommended that the U.S. seek needed modifications to
    the ABM Treaty in the context of wider strategic negotiations and
    suggested that START II is almost certainly dead, it is incumbent upon
    me to address one more loose end--the ABM Treaty agreements signed at
    New York on September 26, 1997 on succession and demarcation. These
    agreements should have been sent to the Senate for Advice and Consent
    and I commend the distinguished Chairman of this Committee for
    insisting upon that. Assuming success on that count, I respectfully
    suggest that these agreements are not in the interest of the United
    States and I urge the Senate reject them.
        When I refer to the New York package, I am referring to seven ABM
    Treaty documents, the first three of which should be submitted for the
    Senate's Advice and Consent, signed on September 26, 1997:

      --A Memorandum of Understanding adding Belarus, Kazakhstan and
            Ukraine as ABM Treaty parties.
      --The First Agreed Statement and Second Agreed Statement which
            purport to demarcate between ABM Treaty limited ABM and
            unlimited TMD.
      --An Agreement on Confidence Building Measures (CBMs).
      --A Joint Statement on annual updates to information on TMD systems
            covered by the CBMs Agreement.
      --A unilateral Statement by the United States of America that ``it
            has no plans'' to test TMD of a velocity greater than 3 Km/sec.
            before April, 1999, to develop TMD with velocity greater than
            5.5 Km/sec. (4.5 for sea based), or to test TMD against MIRVs
            or strategic RVs.
      --New Regulations of the Standing Consultative Committee which
            reflect the addition of Belarus, Kazakhstan and Ukraine.

        I offer three main objections to the New York ABM Treaty package.
        First, the Memorandum of Understanding adds Belarus, Kazakhstan and
    Ukraine as parties to the ABM Treaty--a strategic absurdity. Whatever
    one's opinion of the merits of the ABM Treaty, we could all agree that
    its purpose was to regulate a unique strategic relationship between the
    U.S. and the USSR. No such relationship exists or can exist between us
    and Belarus, Kazakhstan or Ukraine. These newly independent states had
    to be added, the Administration argues, because Treaty limited radars
    and an ABM test site now lie in Belarus, Ukraine and Kazakhstan. This
    is a specious argument. The Treaty limited Skrunda Radar lies in
    Latvia, but Latvia is not being added to the Treaty. The U.S. operates
    Treaty limited radars on the territories of Denmark and the United
    Kingdom and an ABM test site in the Republic of the Marshall Islands
    (which attained sovereignty just a few months before the 1991
    dissolution of the USSR). Yet we never felt a post Cold War itch to add
    these countries to the ABM Treaty.
        It doesn't make sense. But the Administration has persisted so on
    this that one cannot escape the thought that its purpose is to consign
    negotiations such those proposed here to a pentalateral quagmire.
    Moreover, adding Belarus, Kazakhstan and Ukraine will cloud the issue
    of which country to address on future compliance matters.
        I would add that because of the way the New York documents are
    written, everything turns on the succession Memorandum. Defeat it, and
    the entire package falls.
        My second concern is that the New York package not only fails to
    achieve so called demarcation between ABM Treaty limited ABM and
    unlimited TMD systems, it actually leaves matters worse than they had
    been.
        The First Agreed Statement, that is, the demarcation agreement on
    lower velocity TMD, confirms what we could have, and should have,
    simply asserted: U.S. TMD with interceptor velocities not exceeding 3
    Km/sec. are not subject to the ABM Treaty so long as they are not
    tested against targets with a velocity exceeding 5 Km/sec. or of a
    range greater than 3,500 Km.
        The harder question of higher velocity TMD--interceptor velocities
    3 to 5.5 Km/sec. (4.5 for naval systems)--is murkier under the New York
    agreements than it was before President Clinton headed to Helsinki in
    March, 1997. For higher velocity TMD systems, compliance with the
    target velocity and range criteria applied to lower velocity TMD is
    necessary, but not sufficient, to determine ABM Treaty compliance.
    There is no demarcation! Higher velocity TMD systems would still
    undergo an internal U.S. Government compliance review and we would now
    be committed to consult not just with Russia, but with four ABM Treaty
    parties on any TMD matter. Worse, both internal and pentalateral
    deliberations would be clouded by vague new restrictions: TMD may ``not
    pose a realistic threat to the strategic nuclear force of another
    party,'' may not be deployed ``for use against each other'' and may not
    be inconsistent ``in number or geographic scope'' with the ballistic
    missile threat. We have even agreed to provide our missile threat
    assessment to the other parties for discussion!
        The Administration emphasizes that the New York agreements would
    allow all U.S. TMD programs to go forward. Well, there's ``forward''
    and there's ``not exactly.'' One U.S. program, Space Based Laser, would
    be preemptively prohibited, as would anything else that can intercept a
    theater ballistic missile from space. Aside from that, the New York
    package would freeze traditional TMD technology at its 1997 level,
    grandfathering five U.S. TMD programs--Navy Area, THAAD, PAC-3, HAWK
    and MEADS--in their current state. Navy Theater Wide (NTW) standing
    alone would be grandfathered too. But add an improved radar, space
    cueing or Cooperative Engagement Capability (CEC) fire control data,
    and NTW would fall into the murky waters of internal compliance review
    and bilateral consultation. Airborne Laser would have to traverse the
    same murky waters. So would an evolved THAAD if its interceptor
    velocity exceeded 3 Km/sec. So would just about anything new--something
    as simple as an airship launching a kinetic boost phase interceptor.
    Finally, TMD with more capable interceptors--the global missile threat
    remaining unconstrained--would be handicapped by a unilateral statement
    that the U.S. ``has no plans'' for interceptors faster than 5.5 Km/sec.
    (4.5 for naval systems).
        Mr. Chairman, I have suggested that we negotiate substantial
    modifications to the ABM Treaty. If that effort were successful we
    would still have an ABM Treaty, albeit substantially modified. That
    means we would still have to have some guidelines to distinguish Treaty
    limited ABM from unlimited TMD. Having criticized the Administration's
    demarcation agreement I feel I should add just a few more words on
    demarcation. Demarcation is a fleeting concept. In the early days of
    the ABM Treaty the gap between the ranges of short range or Theater
    Ballistic Missiles (TBMs) and those of Strategic Ballistic Missiles
    (SBMs) was fairly wide. Therefore, the gap between the capabilities of
    systems designed to counter each was also fairly wide--it was easy to
    ``demarcate'' between Treaty limited ABM and unlimited TMD. As TBM
    ranges increased, TMD capabilities had to increase. But, for a time,
    the gap was preserved because older, less capable SBMs were being
    removed from service.
        Today, it is still possible to discern a gap between TBMs and SBMs
    and hence between TMD and ABM systems. This is reflected in attempts at
    demarcation over the quarter century between the ABM Treaty and the
    1997 New York agreements. During ABM Treaty ratification hearings,
    Director of Defense Research and Engineering John Foster suggested that
    an air defense interceptor of a velocity greater than 2 Km/sec. would
    require U.S. Treaty compliance review. Leaving aside the New York
    Agreed Statements' many defects, they draw a line calling for U.S.
    compliance review at an interceptor velocity of 3 Km/sec. and they
    allow that interceptors with velocities between 3 Km/sec. and 5.5 Km/
    sec. (4.5 for naval systems) could be found not subject to the ABM
    Treaty. This reflects the increased capabilities of TBMs and,
    therefore, of TMD.
        But there is every indication that TBM ranges will continue to
    increase. Just a few weeks ago India tested a 2,000 Km. range Agni-2,
    followed by Pakistan's test of an 1,100 Km. range Ghauri-2. India
    claims the Agni-2 has a range of 2,000-2,500 Km. and the Ghauri-2 is
    credited with a range between 2,000 and 2,300 Km. During 1998, Iran
    tested the 1,300 Km. range Shahab-3. Iran is reportedly working on
    Shahab-4 and 5 and we should not exclude the possibility that North
    Korea could export the TD-1. As the ranges of TBMs increase, the
    distinction between TBMs and SBMs will begin to blur. Consequently, the
    capabilities of TMD and ABM will blur and demarcation will become
    impossible. At that time the concept of a treaty which limits ABM
    systems will become untenable. Only interim fixes are possible.
        There are two essential ingredients to an effective interim--and I
    stress interim--demarcation. First, the U.S. must adopt a true
    ``demonstrated capability'' standard, that is, we would limit TMD
    testing to targets with re entry velocities of 5 Km/sec. or ranges of
    3,500 Km. or less. Other considerations, including calculations of
    ``inherent capability'' would become irrelevant. Second, we must adopt
    a realistic ``force-on-force'' approach with which to evaluate ABM
    Treaty compliance of U.S. TMD systems. This would eliminate the
    altogether theoretical and exaggerated capabilities which our current
    ``one-on-one'' methodology attributes to U.S. TMD systems. I suggest
    that we not repeat the Administration's mistake of trying to negotiate
    demarcation criteria, and simply announce that henceforward these are
    the criteria the U.S. will use. The Russians can always seek
    clarification in the SCC.
        Returning to the New York agreements, my third objection is that,
    all seven documents added up, the New York package is a new TMD Treaty
    in all but name. In addition to the measures I have just sketched,
    consider the vast declarations of TMD information that will be
    required:

       launch notification;
       name, designation & basing mode of TMD systems and
            components;
       concepts of operations;
       plans and programs;
       launchers per battalion for land based TMD;
       class and type of ship & launchers per ship for sea based
            TMD;
       TMD interceptors per launcher;
       aircraft type & interceptors per aircraft for air based TMD;
       TMD radar frequency band and potential.
    It is an elaborate new obstacle course for American TMD. Consider as
    just one example how this sort of thing could afflict the U.S. Navy.

        It does not require too vivid an imagination to foresee fishing
    expeditions for more and more information on the Aegis system which is,
    in reality, a system of systems whose purposes vastly exceed missile
    defense. Then, add in commitments to limit ``number and geographic
    scope,'' not to ``pose a realistic threat to the strategic nuclear
    force of another party,'' not to deploy TMD ``for use against each
    other'' and declarations of interceptors per launcher, launchers per
    ship, and class and type of ship, and we are right around the corner
    from naval arms control and restrictions on U.S. Navy surface ship
    deployments.
                                   conclusion
        Mr. Chairman, my conclusion is as brief as my presentation has been
    long. Today, it is imperative that the U.S. proceed apace with NMD--
    deployment of the near term system and research, development and
    testing of follow on systems. These actions are blocked by the 1972 ABM
    Treaty as it stands today. We have two choices: withdraw in accordance
    with Article XV or seek to negotiate the changes we need in accordance
    with Article XIV. I recommend that we attempt to negotiate.

        Senator Hagel. Mr. Smith, thank you.
        Mr. Joseph.

     STATEMENT OF HON. ROBERT G. JOSEPH, FORMER AMBASSADOR TO THE
    ABM TREATY'S STANDING CONSULTATIVE COMMISSION; DIRECTOR, CENTER
         FOR COUNTER PROLIFERATION RESEARCH, NATIONAL DEFENSE
                       UNIVERSITY, WASHINGTON, DC

        Ambassador Joseph. Senator, thank you very much for the
    opportunity to testify today. It is a pleasure and an honor to
    be here.
        It is necessary at the outset for me to say that the views
    that I will express are entirely personal. They are not the
    views of the National Defense University, the Department of
    Defense, or any agency of the U.S. Government.
        I have submitted a statement that addresses three highly
    dubious propositions or myths that are frequently asserted in
    the context of supporting the ABM Treaty and maintaining that
    treaty with either no change or minimal change. You touched in
    your opening statement on all three of these, a statement that
    I, like the previous two witnesses, would like to associate
    myself with.
        The three propositions that I will, with your permission,
    summarize in my opening comments are, first, any attempt to
    alter or to withdraw from the treaty will lead to the end of
    offensive nuclear reductions and in fact the overall
    deterioration in the U.S./Russian strategic relationship.
        Second, the rogue state long-range missile threat is still
    years distant, and if it does emerge, it will consist of very
    few unsophisticated weapons.
        And third, the ABM Treaty does not impede the current
    development of a national missile defense and will require only
    slight changes to permit the deployment of a limited but
    nevertheless effective national missile defense.
        In assessing the first proposition, I think looking back
    can be very instructive. Following the Gulf War and the
    attempted coup in the then Soviet Union, as Mr. Hadley points
    out, the Bush administration put forth both a national missile
    defense deployment plan, as well as an arms control initiative
    to support that deployment. The concern was twofold: a rogue
    state armed with long-range missiles able to strike the United
    States, and an accidental or unauthorized launch, perhaps from
    a breakaway military commander.
        To deal with this threat, the United States declared its
    intention to deploy GPALS, or global protection against limited
    strikes. For the near term, this architecture consisted of up
    to six fixed land-based sites with up to 1,200 interceptors, a
    very robust space-based sensor capability, as well as robust
    theater missile defenses. In the longer term, as the threat
    evolved, many looked to space-based interceptors as the key
    capability.
        On the arms control side, in the summer and fall of 1992,
    the United States formally proposed fundamental changes to the
    ABM Treaty that were consistent with this architecture. These
    changes included the elimination of all restrictions on testing
    and development, the elimination of all restrictions on
    sensors, the elimination of restrictions on the transfer of
    systems and components in order to allow cooperative
    relationships, including with Russia, and finally, the right to
    deploy additional land-based interceptors at additional sites.
        These positions were presented to the Russians in a
    nonconfrontational and straightforward way. The Russians were
    told that we could work together on defenses, but that with or
    without them, the United States must protect itself from the
    emerging threat. If modifications to the treaty could be
    agreed, it could be retained. If not, the United States would
    need to consider withdrawal, legally and in accordance with the
    provisions of the treaty.
        We also made clear to the Russians at that time that the
    level of defenses that were to be deployed by the United States
    with or without the ABM Treaty, would not threaten the
    offensive capability of the Russian force at START levels or
    even well below those levels. At the same time, the U.S. team
    stressed that with the end of the cold war, the United States
    and Russia should base their new relationship on common
    interests and on cooperation and not on the cold war suspicions
    and distrust that was the foundation for the doctrine of mutual
    assured destruction.
        I think the Russian reaction was very telling. They did not
    threaten and they did not posture. They did not say yes, they
    did not say no. They mostly asked questions to explore our
    position.
        Most important and I think relevant to keep in mind in
    terms of today's discussions, while the United States was
    insisting on fundamental changes to the ABM Treaty, the Russian
    START negotiators in the very next room in the very same
    building in Geneva were concluding the long sought after START
    agreements that provided for the first time for fundamental
    reductions in offensive forces. That the U.S. position on the
    ABM Treaty did not affect the Russian willingness to agree to
    offensive reductions was evident in the signing of both START I
    and START II in quick succession.
        Nevertheless, in 1993, the new administration reversed
    course on national missile defenses and the renegotiation of
    the ABM Treaty. NMD programs, as you know, were downgraded in
    priority and funding was significantly reduced, and the treaty
    was proclaimed to be the cornerstone of strategic stability.
    For years this policy position has prevailed, often justified
    by the assertion that we must choose between offensive
    reductions and even limited defenses.
        And in particular, we are told that this approach is
    necessary to save START II, a treaty that Moscow has held
    hostage so many times over so many years for so many different
    purposes that few now believe it will ever be ratified, or if
    it is to be ratified, that it will have much significance.
        Yet, irrespective of START II, how Russia will react to the
    deployment of national missile defenses by the United States
    does remain an important question. A number of U.S. and Russian
    officials have predicted dire consequences if the United States
    insists on amending the ABM Treaty or withdraws from that
    treaty. Such assertions I believe lack supporting evidence and
    ignore Russia's own approach to arms control and its own
    security policies. Similar predictions were voiced in the
    context, as Ambassador Smith has pointed out, of NATO
    enlargement. One could give any number of other examples such
    as air strikes on Iraq and some of the talk over Kosovo. Yet,
    in all of these cases, Russia has acted on the basis of its
    interests, not on the basis of its press statements.
        The same is true regarding arms control experience, where
    the most recent example of Russia pursuing its own interests in
    the context of changing strategic realties is also the most
    instructive. When the breakup of the Soviet Union led Russia to
    conclude that the legal limits on deployed forces in its flank
    regions, as established under the Conventional Armed Forces in
    Europe Treaty, or CFE Treaty, were no longer in its interest,
    Russia's approach was very straightforward: It insisted that
    the treaty be changed. And the United States, as well as the
    other parties to that treaty, accommodated the Russian demands
    in the Flank Agreement. Since then, Russia has again insisted
    on additional modifications to the CFE Treaty and the other
    parties are certainly going to go along.
        The principle I think is very clear. Russia assesses arms
    control agreements in the context of its defense requirements.
    When security conditions change, it acts with determination to
    change those treaties. For us, the parallel to the ABM Treaty
    is evident and the principle I believe ought to be the same.
        Today the United States faces a long-range ballistic
    missile threat that was not envisioned when the ABM Treaty was
    negotiated. Although Moscow will certainly seek to delay and
    minimize changes to the treaty and will seek a high price for
    accommodation, it will understand the U.S. need to defend
    against this new threat. And, as we have done with Russian
    demands in the CFE context, it will accommodate.
        I believe accommodation is possible because Russian
    interests and U.S. interests are not mutually exclusive. Even
    at the lowest levels of offensive forces speculated for Russia
    in the future, a U.S. missile defense deployed to protect
    against a limited attack would not undermine its offensive
    capability. And this is the critical point: If Russia knows
    that U.S. defenses will not call into question the credibility
    of their nuclear offensive force, they will have what they
    believe they need. And in this context, given the choice
    between a modified ABM Treaty and no treaty, Moscow will almost
    certainly follow past practice and choose to renegotiate the
    treaty because that is in its own best interests.
        Finally, the future of offensive nuclear reductions more
    generally is less likely to be tied to formalistic arms control
    negotiations than to the realities of the post-cold war world.
    The Russians, according to almost all assessments, will be
    compelled by economics to go to much lower levels of offensive
    forces, independent of arms control outcomes.
        I think I can be very brief with regard to the second
    proposition. As you stated in your opening statement, the
    Rumsfeld Commission and the launch of the North Korean Taepo
    Dong missile--this multi-stage, long-range missile--underscore
    that the threat is here now and that it is likely to become
    ever more sophisticated. The national intelligence estimate
    that concluded that we would have warning and that we would
    likely not face a long-range ballistic threat for 15 years has
    been widely repudiated. That we are near consensus on the
    missile threat is reflected in the Senate's recent overwhelming
    passage of the National Missile Defense Act.
        The third proposition that the ABM Treaty does not impede
    the development of U.S. defense capabilities and that
    deployment of defenses will require only modest changes to the
    treaty is in my view more akin to a self-limiting, self-
    fulfilling, self-deluding proposition than an objective
    assessment of U.S. missile defense requirements in light of the
    threat that we face.
        It is very difficult for me to conclude that, absent the
    treaty, the United States would be considering the contrived
    ground-based architectures being contemplated as primary
    candidates. If the treaty did not exist, we would most surely
    be aggressively exploring sea and space-based options that
    offer much greater potential in terms of cost effectiveness and
    flexibility for expanding our defense capabilities as the
    threat expands. This is not being done because our programs
    must be compliant with the treaty.
        Moving from development to deployment, one must also
    question the proposition that even very limited defenses could
    be fielded with only modest changes to the implementing
    provisions of the treaty.
        The words of article I are very clear and, if one applies
    plain and ordinary definitions, the language makes evident the
    need to confront the basic contradiction between today's
    imperative to deploy defenses, to protect our population
    against ballistic missile attack from rogue states, and the
    underlying strategic rationale of the treaty.
        Designed in the bipolar context of the cold war
    confrontation with the then Soviet Union, the express objective
    of the treaty was to severely limit defenses so as to preserve
    the credibility of strategic offensive forces. Few would
    advance this same deterrent concept today for states such as
    North Korea or Iran. Yet, the treaty does not provide an
    exception for defense against these threats.
        This leads to two final observations. The first is on
    timing. Given the stated Russian goal of retaining the ABM
    Treaty without change, any negotiation, if that is the option
    we pursue, can be expected to be long and difficult. Yet, if
    the United States acts with determination and avoids mixed
    signals, such negotiations could be in my view successful, but
    only if we have both, as you say, Senator, a clear deployment
    objective and the perceived resolve to move forward, even if
    that requires withdrawal from the treaty under the supreme
    national interest clause of the treaty. In light of the pace of
    missile programs in countries such as North Korea and Iran, we
    simply do not have the luxury to devote years to renegotiate
    the ABM Treaty.
        The second observation is that in attempting to resolve
    treaty issues to permit limited defenses, we need to ensure
    flexibility for the future to counter missile threats as they
    continue to evolve, taking full advantage of new technologies.
    Narrow treaty relief to allow for fixed ground-based
    interceptors to protect against a very small and crude threat
    in the near term must not be purchased at the price of fixing
    in concrete a future that does not permit us to adapt our
    defenses to meet the threat as it evolves. For example, we must
    not compromise now on a defense against a small handful of
    missiles from North Korea but leave ourselves totally
    defenseless when they add one or two missiles more.
        Senator, in conclusion, let me say that my personal view is
    that the best option is to exercise our right under the treaty
    for withdrawal. I have two primary reasons for this.
        First--and I have touched on this--the treaty is currently
    inhibiting us from exploring sea and space-based approaches
    that in my view offer the greatest potential in terms of cost
    effectiveness and flexibility for the future. There is a high
    risk that even under a modified treaty, we will foreclose
    options that build on new technologies that will be essential
    to counter the threat as it develops.
        And second, I believe we should discourage the proposition
    that mutual assured destruction forms a solid basis for our
    strategic relationship with Russia. The ABM Treaty in my view
    has a very corrosive effect on how we see each other. It is a
    treaty that is unhealthy for both the United States and for
    Russia. We simply should not maintain this cold war artifact at
    the center of our relations. I believe we can address our
    differences with Russia and reconcile those differences outside
    of the ABM Treaty.
        That said, I believe that the option to renegotiate the
    treaty and change it fundamentally, as we attempted to do in
    1992, is a viable option and is, in fact, the most likely
    option that we will pursue.
        As I said in my comment earlier and as you have said in
    yours, we must, if we pursue this approach, be serious and be
    perceived as serious. In order to do so, we must have a real
    deployment program and the willingness to leave the treaty if
    in fact that is necessary.
        Senator, thank you very much. That concludes my comments. I
    look forward to your questions.
        [The prepared statement of Ambassador Joseph follows:]
                  Prepared Statement of Hon. Robert G. Joseph
        Mr. Chairman, distinguished Members, thank you for the opportunity
    to testify today. It is an honor to be able to present my views on the
    ABM Treaty and, specifically, on the central Treaty-related issues that
    surround the debate over the deployment of a national missile defense.
        It is necessary to emphasize at the outset that the views expressed
    in this statement are entirely personal and do not necessarily reflect
    those of the National Defense University, the Department of Defense or
    any agency of the U.S. Government.
        My statement addresses three highly dubious propositions that are
    frequently asserted in support of maintaining the ABM Treaty either
    without change or with only minor modifications. These are: First, any
    attempt to alter or withdraw from the Treaty, although consistent with
    our legal rights, will lead to the end of offensive nuclear reductions
    and to an overall deterioration of the U.S.-Russian relationship.
    Second, the rogue state long-range missile threat is still years
    distant and that, if it does emerge, it will consist of very few
    unsophisticated weapons. And, third, the ABM Treaty does not impede
    current development programs and will require only slight changes to
    permit deployment of limited but effective national missile defenses.
    Experience and evidence stand in stark contrast to all three of these
    propositions.
        In assessing the first proposition, looking back can be very
    instructive. Following the Gulf War and the attempted coup in the then
    Soviet Union, the Bush national security team put forth both a
    deployment plan and an arms control initiative to support this
    deployment. The concern was twofold: a rogue state armed with a small
    number of ballistic missiles able to strike American cities, and an
    accidental or unauthorized launch, perhaps from a breakaway military
    commander.
        To deal with this limited threat, the United States declared the
    intention to deploy GPALS--Global Protection Against Limited Strikes.
    For the near term, this architecture consisted of up to six ground-
    based sites with up to 1200 interceptors, a space-based sensor
    capability, and robust theater missile defenses. In the longer term, as
    the threat evolved, many looked to space-based interceptors as the key
    capability.
        On the arms control side, in the summer and fall of 1992, the
    United States formally proposed fundamental changes to the ABM Treaty
    consistent with the GPALS concept. These included:
        First, the elimination of restrictions on the development and
    testing of ABM systems. These restrictions both directly and indirectly
    had impeded our ability to field effective strategic and theater
    defenses, just as they do today.
        Second, the elimination of restrictions on sensors. Disagreements
    in this area had for years dominated the contentious compliance debate.
    Moreover, it was recognized that no missile defense architecture that
    would permit even a limited territorial defense could be deployed
    without Treaty relief on sensors. This also remains the case today.
        Third, the elimination of restrictions on the transfer of ABM
    systems and components to permit cooperative relationships on missile
    defenses with other countries, including Russia. And
        Fourth, the right to deploy additional ABM interceptor missiles at
    additional ABM deployment sites.
        In Washington, Moscow and Geneva, American representatives
    presented these positions to the Russians, stating that the emerging
    threat of long-range missiles compelled changes to the ABM Treaty. In a
    non-confrontational but straightforward way, the Russians were also
    told that we could work together on defenses but that, with or without
    them, the United States must protect itself from limited attacks. If
    modifications to the Treaty could be agreed, it could be retained. If
    not--and the implication was direct--the United States would need to
    consider withdrawal, legally in accordance with the provisions of the
    Treaty.
        American representatives also made clear that the level of defenses
    to be deployed by the United States, with or without the ABM Treaty,
    would not threaten the offensive capability of the Russian force at
    START levels or even well below those levels. At the same time, the
    U.S. team also stressed that, with the end of the Cold War, the United
    States and Russia should base their new relationship on common
    interests and cooperation, and not on the distrust that was the
    foundation of the doctrine of mutual assured destruction that had
    defined relations as Cold War enemies.
        The Russian reaction was telling. They did not threaten or posture.
    They did not say yes or no; they mostly listened and asked questions to
    explore the U.S. proposals. Indeed, in a speech to the United Nations
    in January 1992, President Yeltsin had called for the joint development
    of a ``Global Protection System'' to defend against ballistic missile
    attack.
        Most important, and relevant to keep in mind in today's
    discussions, while the United States was insisting on basic changes to
    the ABM Treaty, the Russian START negotiators were concluding the long
    sought START agreement providing, for the first time, for substantial
    reductions in offensive forces. That the U.S. position on the ABM
    Treaty did not affect the Russian willingness to agree to offensive
    reductions was evident in the signing of both START I and START II in
    quick succession.
        Nonetheless, in 1993, in one of its most substantial departures
    from the Bush Administration security policy, the new Administration
    reversed course on national missile defense and the renegotiation of
    the ABM Treaty. National missile defense programs were downgraded in
    priority and funding was significantly reduced. For years this policy
    position has prevailed, often justified by the assertion that we must
    choose between offensive reductions and even limited defenses.
        Most recently, in the context of the Senate's consideration of the
    National Missile Defense Act of 1999, the Administration reaffirmed at
    the highest level that the United States has not made a decision to
    deploy and continues to uphold the 1972 ABM Treaty as the ``cornerstone
    of strategic stability.'' This approach, we are told, is necessary to
    save START II--a Treaty that Moscow has held hostage so many times to
    so many different objectives over so many years that few now believe it
    will ever be ratified by the Duma or, if it is ratified, that it will
    have much significance.
        Yet, irrespective of the fate of START II, how Russia will react to
    the deployment of national missile defenses by the United States
    remains an important question. A number of U.S. and Russian officials
    have predicted dire consequences if the United States insists on
    amending the ABM Treaty or withdraws from the Treaty. Such assertions
    lack supporting evidence and ignore Russia's own approach to arms
    control and its own security policies. Similar predictions were voiced
    in the contexts of NATO enlargement and air strikes on Iraq. Yet, in
    both of these examples, Russia acted on the basis of its interests, not
    its press statements. Russia's actions spoke louder than its words.
        The same is true regarding arms control experience. When NATO
    decided to deploy intermediate-range nuclear forces in the early 1980s,
    while simultaneously negotiating for the elimination of this entire
    class of nuclear weapon, the Soviet Union made stark threats to test
    the Alliance's resolve. Moscow promised to walk out of the negotiations
    when the first NATO missiles were fielded, and did so in November 1983.
    But when it became clear that the determination of the Allies would not
    be shaken, the Soviet negotiators returned to the table and the result
    was a total ban on these weapons.
        The most recent arms control example of Russia pursuing its own
    interests in the context of changing strategic realities is also
    perhaps the most instructive. When the breakup of the Soviet Union led
    Russia to conclude that the legal limits on deployed forces in its
    flank regions--as established in the Conventional Armed Forces in
    Europe (CFE) Treaty--were no longer in its interest, its approach was
    straightforward: it insisted that the Treaty be changed. The United
    States and the other parties accommodated the Russian demand in the
    Flank Agreement. Since then, Russia has again insisted on additional
    modifications to the CFE Treaty. That the other parties will again go
    along is apparent in the recent Washington NATO Summit Communique that
    reads: ``The CFE Treaty is the cornerstone of European security. We
    reaffirm our commitment to the successful adaptation of the Treaty
    reflecting the new security environment . . .''.
        The principle is clear. Russia assesses the value of arms control
    agreements in the context of its defense requirements. When the
    security conditions change for Russia, it acts with determination to
    change the treaties. For us, the parallel to the ABM Treaty is evident
    and the principle should be the same.
        Today the United States faces a long-range ballistic missile threat
    that was not envisioned when the ABM Treaty was negotiated. Although
    Moscow will certainly seek to delay and minimize any changes to the
    Treaty, and as always will seek a high price for accommodation, it will
    understand the U.S. need to defend against this new threat and, as we
    have done with Russian demands in the CFE context, it will accommodate.
    Accommodation is possible because Russian interests and U.S. interests
    are not mutually exclusive.
        Even at the lowest levels of offensive nuclear forces speculated
    for Russia in the future, a U.S. missile defense deployed to protect
    against a limited attack would not undermine its offensive capability.
    And this is the critical point: at the end of the day, if Russia knows
    that U.S. defenses will not call into question the credibility of their
    nuclear offensive force, they will have what they believe they need. In
    this context, given the choice between a modified ABM Treaty and no
    Treaty, Moscow will almost certainly follow past practice and choose to
    renegotiate the Treaty consistent with its own best interests.
        Finally, the future of offensive nuclear reductions is less likely
    to be tied to formalistic arms control negotiations than to the
    realities of post-Cold War world. The Russians, according to almost all
    assessments, will be compelled by economics to go to much lower levels
    of offensive forces, independent of arms control outcomes. If this
    forecast is accurate and Russia does go to lower numbers, perhaps even
    well below those being discussed for START III, the United States could
    make appropriate adjustments in our own posture--a posture that must be
    structured to meet our global interests, which are much different from
    those of Russia.
        With regard to the second proposition--that the rogue state missile
    threat to the United States is still years away--the findings of the
    Rumsfeld Commission and the North Korean launch last August of the
    multi-stage, long-range Taepo Dong missile underscore that the threat
    is here now and will become increasingly sophisticated. There is an
    apparent consensus within the defense community that the proliferation
    of nuclear, biological and chemical weapons represents a major security
    challenge to the United States. We are also near consensus on the
    missile threat, as reflected in the Senate's overwhelming passage of
    the National Missile Defense Act of 1999. The National Intelligence
    Estimate that concluded that we would have warning and that we likely
    would not face a long-range missile threat for fifteen years has been
    widely repudiated.
        Here, two points should be made. First, in the area of
    proliferation shocks and surprises, we have a long record of
    intelligence failures. From Sputnik and missiles in Cuba to the recent
    Taepo Dong launch, there is every reason to believe that we will be
    surprised in the future about the size, scope and speed of adversaries'
    missile programs. The same applies to their programs to develop weapons
    of mass destruction. Second, it seems to me that the North Korean
    launch settles the debate. We now have a desperate, totalitarian
    regime, that could we are told have a couple nuclear bombs, in the
    possession of long range missiles.
        The third proposition--that the ABM Treaty does not impede the
    development of U.S. defense capabilities and that deployment of
    defenses will require only modest changes to the Treaty--is more akin
    to a self-limiting, self-fulfilling proposition than an objective
    assessment of U.S. missile defense requirements in light of the threat
    we face.
        One can argue technically that the fixed, ground-based national
    missile defense architectures being contemplated can be developed
    consistent with the Treaty. Yet, it is very difficult to conclude that,
    absent the Treaty, the United States would be considering these
    architectures as the primary candidates. If the Treaty did not exist,
    we would likely be aggressively exploring sea- and space-based options
    that offer much greater potential in terms of cost effectiveness and
    flexibility for expanding our defenses as the threat expands. This is
    not being done because our programs must be compliant with the Treaty.
        Moving from development to deployment, one must also question the
    proposition that even very limited defenses could be fielded with only
    modest changes to the implementing provisions of the Treaty. Article
    One embodies the purpose of the Treaty by committing each party ``not
    to deploy ABM systems for a defense of the territory of its country and
    not to provide a base for such a defense.'' Coupled with the 1974
    Protocol that reduces the number of permitted sites from two to one,
    Article One limits a compliant defense to the sole purpose of
    protecting the former ICBM field near Grand Forks, North Dakota.
        The words of Article One and their meaning are very clear and, if
    one applies plain and ordinary definitions, the language makes evident
    the need to confront the contradiction between today's imperative to
    defend our population against ballistic missile attacks from rogue
    nations and the underlying strategic rationale of the Treaty.
        Designed in the bipolar context of the Cold War confrontation with
    the then Soviet Union, the express objective of the Treaty was to
    severely restrict defenses so as to preserve the credibility of
    offensive deterrent forces. Few would advance this same deterrent
    concept today for states such as North Korea or Iran. Yet, the Treaty
    does not provide an exception for what is often referred to as a light
    territorial defense against these and other ballistic missile threats.
        This leads to two further observations. The first is on timing.
    Given the stated Russian goal of retaining the ABM Treaty without
    change, and given their fears that any U.S. deployment program will
    provide the base for a robust national missile defense that could
    threaten the viability of their nuclear arsenal, any negotiation can be
    expected to be long and difficult. Yet, if the United States acts with
    determination and avoids mixed signals, such negotiations could be
    successful if we have both a clear deployment objective and the
    perceived resolve to move forward to meet the threat from rogue states,
    even if that requires withdrawal from the Treaty under the supreme
    interest clause. In light of the pace of missile programs in countries
    such as North Korea and Iran, there simply is not time to devote years
    to the renegotiation of the ABM Treaty.
        The second observation is that in attempting to resolve Treaty
    issues to permit limited defenses, we need to ensure flexibility for
    the future to counter missile threats as they continue to evolve,
    taking full advantage of developments in technology. Narrow Treaty
    relief to allow for fixed ground-based interceptors to protect against
    a very small and crude missile threat in the near term must not be
    purchased at the price of fixing in concrete a future that does not
    permit us to adapt our defenses to meet the threat as it evolves. For
    example, we must not compromise now on a defense against a small
    handful of missiles from North Korea but leave ourselves totally
    defenseless when they add one or two more.
        In conclusion, I will end by describing three alternative futures
    for the ABM Treaty. The first, advocated by Russia and China, would
    have the United States abide by the Treaty without change. At the core
    of this approach--although often disguised by such noble sounding
    phrases as ``the cornerstone of strategic stability'' or ``the
    cornerstone of world stability''--is the perpetuation of the Cold War
    concept of mutual assured destruction that bases national security
    policy on the vulnerability of our society to nuclear destruction.
        That the United States would remain vulnerable to the rogue nation
    missile threat is either discounted or prized. For Russia, the status
    quo best protects the nuclear force that it increasingly relies on in
    both defense planning and declaratory policy. Moscow gives little
    indication of concern about U.S. vulnerability to rogue state attacks,
    such as from North Korea. For China, the ABM Treaty is considered
    critical to its national interest because, without U.S. defenses,
    Beijing can credibly threaten the United States with unacceptable
    destruction of our cities. While not a party to the Treaty, China
    certainly sees itself as an interested beneficiary, especially in the
    context of its designs on Taiwan.
        The second ABM Treaty future rejects the three propositions
    assessed in this statement and calls for the United States to withdraw
    from the Treaty consistent with our legal rights. Here, the clear
    imperative is to deploy an effective national missile defense against
    the rogue threat in a manner that permits our defenses to evolve as the
    threat evolves. Under this approach, the ABM Treaty is acknowledged to
    be strategically obsolete and counterproductive to long-term relations
    with Russia. Differences with Russia--and specifically assurances to
    Moscow that U.S. missile defense deployments would not undermine the
    Russian offensive force--could be reconciled outside of the Treaty,
    through informal confidence building measures or perhaps even in a more
    formal way.
        The third ABM Treaty future accepts as a national security
    imperative the need to defend against the rogue threat. It also sees
    the ABM Treaty as obsolete and counterproductive. Yet, under this
    approach, there is a willingness to attempt to renegotiate the Treaty
    if Moscow believes it essential and is willing to accept fundamental
    changes that permit the United States to pursue defenses that are
    sufficiently robust and flexible to protect against the threat. If this
    attempt is unsuccessful, the United States would be forced to withdraw
    from the Treaty, legally and consistent with our security requirements.
    This was the approach taken in 1992. It may well provide a way ahead
    today.

        Senator Hagel. Mr. Joseph, thank you. Thanks again to each
    of the three of you.
        I would like to take each of you through a series of
    questions, realizing that there is a significant technical
    aspect to all of this which the three of you are far more
    prepared to deal with than I am, but seeing if I can keep this
    in the jargon that most of us understand. But nonetheless, all
    three of you have touched on important dynamics of the ABM
    Treaty as we currently understand it and interpret it. And I
    want to match that up a little bit in a series of questions
    with what you all have laid out as to where you think we need
    to go, how you suggest we get there, and what the consequences
    are for not dealing with this, especially as we have to deal
    with the reality of this over the next 18 months.
        So, with that, I will suggest some questions, and take as
    much latitude as you wish in embroidering around the question
    as well. If there are some things that you want to add, please
    feel free to do so.
        Mr. Secretary, may I ask you? We have heard from both
    Ambassador Smith and Ambassador Joseph this morning some
    references to the Rumsfeld Commission, which all three of you
    are thoroughly familiar with. I would like to begin by asking
    each of you whether you believe that the timeframe that the
    Rumsfeld Commission came up with, the 5-year timeframe, before
    a serious North Korean or Iranian missile threat would emerge
    is correct. Are they understating it? I would be interested in
    getting your evaluation of that dynamic of the Rumsfeld report.
        Mr. Hadley. I have not gone into the intelligence behind
    that report. I have read the report, talked to some of the
    people who participated in it. All I can say without that kind
    of technical review is it sounds right to me.
        I spent some time looking at the 1995 CIA estimate which
    seemed to me really did not hold up particularly well, and I
    think that the Rumsfeld Commission has really done a remarkable
    service by what it has done. And I would point out that my
    understanding is that the CIA analysts really are pretty much
    in accord with where the Rumsfeld Commission comes out. I have
    talked to those analysts and heard briefings from them. I have
    concluded that Rumsfeld had it about right.
        Senator Hagel. Thank you.
        Ambassador Smith.
        Ambassador Smith. Well, Mr. Chairman, I had the privilege
    of serving as a consultant and reviewer of the Rumsfeld
    Commission report, and I think I can assure you that they are
    basically correct. Obviously what they are saying is, to a
    certain extent, things cannot be predicted. So whether it is 4
    years or it is 6 years, or maybe it is wrong in one case it is
    10, but in another case it could be 3, they have got it just
    about right.
        And our official intelligence community has gotten it wrong
    pretty consistently. Let me just give you a few examples. Look
    how quickly North Korea went from a No Dong to a Taepo Dong
    with not two stages, with not liquid fuel, but a three-stage
    Taepo Dong with a solid fuel stage. That is an important
    advance in a couple of years.
        Just 2 years ago, the intelligence community told us that
    the Iranians were a long way away from the Shahab 3. Not 9
    months later, the Director of Central Intelligence was here in
    the Senate testifying that actually they had been wrong, and
    now we are looking at a Shahab 4 and a Shahab 5.
        I would also point out that the Indians and the Pakistanis
    went very quickly from their first missiles to their second
    missiles and we saw I think just last month both tests of the
    Indian Agni and the Pakistani Ghauri.
        It seems to me that 5 years is about right. And remember
    what they said. It is 5 years from the time a country makes
    that decision. They did not say there was going to be an
    onslaught in 5 years from today. They said that given
    technology transfer, given that these countries do not have to
    reinvent the wheel, given that they can beg, borrow, and steal
    technology in bits and pieces all over the world, if and when a
    country makes a decision, it would take it about 5 years. And
    there are plenty of countries doing just that, Mr. Chairman.
        Senator Hagel. Thank you.
        Ambassador Joseph.
        Ambassador Joseph. Senator, I do not know what I can add.
    Let me say that I, like many other people, was very impressed
    with the individuals that formed the Rumsfeld Commission--very
    competent, very experienced individuals with a wide variety of
    views. They had access to a great deal of intelligence, and I
    think the findings--in this case, the findings in terms of the
    5 years--does reflect the best assessment that can be made.
        I would point out that, in that finding, the report says we
    may not know when that 5-year clock begins. We may not have
    indicators and warning. So, it is not necessarily 5 years from
    now or 5 years from a time in the future in which a decision is
    made by a State to acquire this capability. We may be well
    along that path already.
        And I would also emphasize what Ambassador Smith just said
    about the history of being surprised, of intelligence failures,
    as some would call them. We have often been surprised by the
    speed and the scope of adversaries' missile programs, as well
    as their nuclear, biological, and chemical programs. One can go
    back to Sputnik or to missiles in Cuba. The Taepo Dong and the
    Iranian program are just more recent examples. In terms of
    nuclear, biological, and chemical programs, we were surprised
    with the Indian test last year. We were also shocked at the
    scope and size of the Iraqi biological and chemical weapons
    program.
        This uncertainty is something that we need to take into
    account in terms of our own sense of timing for moving forward.
    I believe it is urgent that we move forward with the national
    missile defense, and that is supported by this history of
    surprises.
        Senator Hagel. Thank you.
        Let me ask each of you. You all touched on this in some
    way. The ship-based threat, the sea-based threat. Recently we
    became aware of the fact that the Iranians towed a barge out in
    the middle of the Caspian Sea and on that barge was a Scud
    missile, and they test fired a Scud off the barge. What our
    intelligence shows is that the result of that test was rather
    accurate where they placed the missile.
        In response to the three of your analyses of what not only
    our limitations are presently under the ABM Treaty constraints,
    but more importantly, as we are looking out into the future,
    how do we prepare ourselves--and can we--to deal with this kind
    of a threat? Obviously, the Iranians, a terrorist group, anyone
    can get a hold of a cargo ship and put a Scud type of missile
    in the hold and run it around out in the bay somewhere and get
    it close to our shore where we have very little time to respond
    and fire it. What is your response to that specific threat, Mr.
    Secretary?
        Mr. Hadley. Mr. Chairman, I have not gone through or
    reviewed military analysis or technical analysis about how you
    deal with that threat, but let me give you a couple
    suggestions.
        I think one of the things that is unfortunate about this
    debate about ballistic missile defense is that in some sense
    the partisans of ballistic missile defense have had to focus
    all their efforts on this one instrument because the resistance
    to it has been so great. While the critics of ballistic missile
    defense are prepared to do a lot of things to deal with weapons
    of mass destruction--almost anything but ballistic missile
    defense. I think we have got to try and bridge that gap and
    recognize that ballistic missile defense is an active element,
    but only one element of what has to be a broader strategy.
        In my testimony and elsewhere, you can find a long list of
    the things we need to do to deal with the challenge of weapons
    of mass destruction. And I think the Iranian case is an example
    of that. We may have a role for active ballistic missile
    defense in that case, but it is also a situation where we are
    going to need good intelligence about what kinds of ships are
    approaching our shores and what they contain. We are going to
    need capability based on that intelligence to preempt, if
    necessary, and take out some of those threats.
        So, I think what we need to do is look for a comprehensive
    strategy which has a variety of elements, and of course, in
    those instances where appropriate, ballistic missile defense
    will be one. But that is why I mentioned this need for a really
    comprehensive approach to the weapons of mass destruction
    threat. We have got a lot of tools in our arsenal. It is a
    serious threat and we have got to use them all.
        Senator Hagel. Thank you.
        Ambassador Smith.
        Ambassador Smith. Mr. Chairman, let me try and respond to
    that. First of all, with regard to the possibility, the
    likelihood of this, I think we should not scare ourselves to
    the point where we think we are going to be overwhelmed with
    this tomorrow. But the fact is there are countries working on
    this, as we have just stated. They are making breakthroughs and
    I think we should expect this. They know what kind of defenses
    we are thinking about. They clearly go and look for something
    else, for the same reason people built submarines years ago.
        You noted the Iranian barge incident. There are some other
    things in the Rumsfeld report. I would just note a couple
    things that I think are common knowledge.
        One, the Israelis launch the targets for their Arrow
    missile from a barge at sea. It is clearly done and that is a
    fairly accurate trajectory that they are following.
        Two, the Boeing Corporation has just launched a Ukrainian
    booster from something called Sea Launch quite successfully for
    commercial purposes. The technology is basically there.
        The problem that used to lead people to say it cannot be
    done is a problem basically of navigation. It was the challenge
    that our SLBM program had to face at the outset. To know where
    you are going, you need to know where you are. That is why it
    makes it very hard to launch a missile at sea. Well, guess
    what? If you have GPS or you have GLONASS or you have both--and
    these countries do--you can go to any sport shop and buy a GPS
    device for $1,000, $2,000. If you are willing to spend a little
    more, you get a real sophisticated one. The missile knows where
    it is, sir.
        The other problem is the roll and yaw of a ship. As you
    launch something, obviously the ship is on the sea. It is not a
    completely stable platform. But once again, if you know where
    you are, the missile can correct for its position.
        And remember there is a big difference with these kind of
    countries. They are not going for high accuracy, hard target
    kill the way the United States and the Soviet Union were. What
    if they are 5 miles off? What we are talking about is a missile
    on some kind of a ship, 500 miles at sea in the Atlantic Ocean.
    They are aiming for Charleston, South Carolina, sir, and if the
    roll and yaw gets it at the wrong moment, they hit Hanahan
    instead of Charleston. They still achieve their objective. So,
    it is very possible and we need to think about that.
        Now, what do you do? I have to underscore what Mr. Hadley
    suggested. We need a comprehensive program. We need better
    intelligence. We need to double nonproliferation efforts. We
    need to think about interdiction or preemption, and we need to
    think about defense.
        Now, when you think about defense, the fact is that if the
    ships can be out there, you can track them. And the Coast
    Guard, by the way, has a very interesting program that has just
    been reinvigorated to keep track of significant ships out there
    for various reasons. But the fact is ships move. That is why
    countries want them. Well, you cannot fix that with a fixed,
    land-based system in Grand Forks, North Dakota or in the middle
    of Alaska. If it is 500 miles off the coast of South Carolina
    and it launches at Charleston, believe you me, you will not get
    a missile that is leaving North Dakota there in time.
        The fact is if we are worried about this--and I think we
    should be--we need to start looking at space-based defenses.
    That is the answer, Mr. Chairman.
        Senator Hagel. Thank you.
        Ambassador Joseph.
        Ambassador Joseph. Senator, just very briefly. There are,
    as you point out, many different avenues for missile attack,
    both ballistic and cruise. All are technologically challenging.
    Some, in fact, may be countered only by future capabilities
    such as boost-phase interceptors or the space-based
    interceptors, as Ambassador Smith just said.
        Senator Hagel. Thank you.
        The intercept of a missile carrying a biological warhead,
    for example, is obviously risky for many reasons. If that
    intercept is not done during the missile's boost phase, the
    intercept occurs over a friendly nation, fallout, casualties.
    Does, in your opinion, the current administration proposal for
    intercept deal with this, deal with it in a way that addresses
    this possibility, calling for a boost phase, for example, of
    the intercept capability in the three-tier C-1, C-2, C-3? Would
    you each comment on that?
        Mr. Hadley. I am not aware that the C-1, C-2, or C-3
    architecture for national missile defense has any boost phase
    capability to it. My colleagues can correct me on that.
        That is obviously for a lot of reasons the intercept moment
    of choice. I think one of the things that we should do from a
    deterrence standpoint is to be working on and try and
    demonstrate that kind of capability for deterrence purposes. I
    am not fully briefed in the airborne laser program. That is one
    which would provide that capability, and there an advantage to
    moving it along even if it is fairly primitive and
    demonstrating it because it makes it clear to countries of
    concern that we are working that problem much the same way that
    we dumped an MX missile out the back of a 747 in the 1980's
    simply to show there were technical fixes out there available
    to us for MX vulnerability so that countries that did not wish
    us well had to take them into account.
        I think that is the kind of thing we need to be doing--the
    kind of robust research and development program we need to
    support national missile defense, and that is one of the
    reasons all three of us have argued that part of the ABM Treaty
    relief we need is to get out from under the restrictions on
    research and development.
        Senator Hagel. Would you like to add anything?
        Ambassador Smith. Mr. Chairman, first of all, I agree with
    Mr. Hadley. The current administration, the 3 + 3 or what I
    guess has now become 3 + 5--we are not talking about boost
    phase. We are talking about fixed, ground-based interceptors in
    the United States. Obviously, the people engineering that
    system are trying to build it such that the interceptor can get
    to something high enough, fast enough so that they can vaporize
    that kind of warhead. Depending on the distance they have to
    travel and the angle of attack, that could be problematic or
    not. They are working the problem as best they can with that
    stricture.
        If you want to be sure about it, you are quite correct. You
    need to go to boost phase. The United States does not now have
    any programs--does not now have any programs--for strategic
    defense in boost phase. We have an airborne laser program, but
    I need to underscore airborne laser is theater missile defense.
    The ABC concept of operation does not permit that to be in the
    right time and the right place to carry out a strategic
    mission.
        Senator Hagel. Thank you.
        Ambassador Joseph.
        Ambassador Joseph. Senator, I would add that I have had a
    number of discussions with Israeli colleagues. Israel as a
    nation is very concerned about the problem, the threat that you
    just raised. The Israeli approach is a comprehensive approach.
    It is an approach that emphasizes active defenses against
    ballistic missiles. It emphasizes a whole range of passive
    defense capabilities to protect not only forces, but the
    population should active defense fail. And it emphasizes
    counter force capabilities and options in that category. That
    sort of comprehensive approach is the type that I believe we
    should be looking at.
        Senator Hagel. Thank you.
        As the three of you look at the administration's concept
    for national missile defense, as you understand it, what are
    your concerns about the elements of that concept that might
    make the time table slip even more than what we have discussed
    this morning? You all three have identified some of those
    areas. But if you would like to add to that part of your
    testimony, the committee would be interested in hearing
    anything further on this.
        Mr. Hadley. I do not have anything to add.
        Ambassador Smith. Mr. Chairman, the only thing at this
    point, having stretched out from 3 + 3 to 3 + 5, I think the
    program manager probably has the latitude that he needed. It is
    a high risk program. Obviously something could go wrong. But
    frankly the biggest risk to our NMD program right now is it
    gets delayed for political reasons, not technical reasons.
        Ambassador Joseph. I have nothing to add, sir.
        Senator Hagel. Some have criticized the administration's
    missile defense concept because they say it seems to
    concentrate more in keeping within the ABM Treaty, as you have
    all noted, I have noted, others, rather than focusing on
    providing the essential effective defense that this debate
    should be about, the purpose of all this should be about.
        And setting aside for a moment the question, which we
    continue to deal with and will, whether the ABM Treaty is
    legally in force and all the dynamics and consequences of that,
    would each of you comment on whether you believe that even the
    limited defense contemplated under the administration's C-1
    concept would be a violation of article I of the ABM Treaty
    which bans any defense of the territory or regions of the
    United States?
        Mr. Secretary.
        Mr. Hadley. I think for the reasons that Ambassador Smith
    laid out, I would associate myself with the statement that even
    C-1 presents an ABM Treaty problem.
        Senator Hagel. Mr. Ambassador.
        Ambassador Smith. Well, I can only repeat what I have said.
    I think there are arguments one could make, but the fact is we
    are getting at the object and purpose of the treaty. It seems
    to me that you are going to have to negotiate something,
    otherwise it will at least be construed by a lot of significant
    people in both countries to be a violation of the ABM Treaty,
    particularly of article I.
        Ambassador Joseph. Senator, as I said--and I certainly
    would agree with Ambassador Smith--article I is very clear. It
    is a very short article. If you use plain and ordinary
    definitions of terms, then I think the language makes very
    clear that a national missile defense, even a very limited
    national missile defense, is not permitted and, in fact,
    expressly prohibited by article I.
        Senator Hagel. A follow-on to this question. The
    administration's C-1 concept--and this again has been touched
    upon here this morning by each of you--calls for a missile
    defense site in central Alaska. Would this, again in your
    opinions, violate the protocol to the ABM Treaty as well as
    article III?
        Mr. Secretary.
        Mr. Hadley. Yes, sir.
        Ambassador Smith. Unequivocally.
        Ambassador Joseph. Yes, sir.
        Senator Hagel. The central Alaskan site that I am referring
    to being considered now by the administration would rely upon
    the Shemya X-band radar, with which I think all three of you
    are very familiar. Is this again legal under the ABM Treaty
    given the distances involved?
        Mr. Secretary.
        Mr. Hadley. I am going to defer to my two colleagues on
    that issue. They have struggled with that issue much more than
    I.
        Senator Hagel. Mr. Ambassador.
        Ambassador Smith. Mr. Chairman, Mr. Hadley defers for a
    good reason. That is a very complex question, and it hinges on
    whether that Shemya radar is an ABM radar. Now, the way it
    parses out is basically this.
        The ABM Treaty imagined a world in which there would be
    one, big, giant radar like we had at Cavalier, North Dakota,
    and that was an ABM radar. And the treaty specifies where it
    can be. Now, if it is an early warning radar, it can be out on
    the periphery of the territory, but if it is an ABM radar, it
    needs to be in a 150-kilometer radius that contains the launch
    site. And clearly Shemya to central Alaska is more than 150
    kilometers. There is absolutely no doubt about that.
        The question is, is that X-band radar an ABM radar? Now, it
    seems to me that if you argue that it is not, you then fall
    into the quagmire of answering the question, all right, then
    what is? Is some other early warning radar out there an ABM
    radar? Is something on board the system an ABM radar? Something
    has to be an ABM radar or a substitute for an ABM radar.
        I think the most likely conclusion that people will reach
    is that the X-band radar that is being built expressly for the
    purpose of national missile defense at Shemya is the ABM radar,
    and if that is the ABM radar, it cannot be at Shemya as the ABM
    Treaty stands today.
        Senator Hagel. Thank you.
        Ambassador Joseph.
        Ambassador Joseph. I agree with Ambassador Smith. I think
    article III would have to be addressed and changed in order to
    permit an ABM radar to be at Shemya.
        Senator Hagel. Thank you.
        Ambassador Smith, I wanted to get back to a point you
    raised in your testimony, inviting me essentially to followup
    with you on some additional thoughts you might want to share
    with the committee on negotiating points. I would like to avail
    you of that opportunity at the present time, and with your
    colleagues on either side of you, as they listen to your
    insightful commentary on this, if they would like to add
    anything, we would welcome their thoughts as well.
        Ambassador Smith. Mr. Chairman, thank you.
        I suggested that what we need to do before we run off and
    talk to the Russians is consider exactly what we need and go
    and try and get no more or no less than that. As I look at what
    we are going to do over the next few years, over what we should
    do over the next few years, on the one hand, you do not want to
    err on the side of caution and go and ask for less than you
    need. That is ridiculous because you are back in the same
    situation--you have jumped from the pot to the frying pan. On
    the other hand, if this is a negotiation, there is no point of
    overplaying your hand and seeking things that you really do not
    need for maybe another 10, 15 years.
        The way I parse it out is this. First of all, we are moving
    along on the fixed, ground-based system. If we could go back a
    few years and I could do it differently, I might not do it that
    way. But the fact is that is where we are. I think it would be
    a real shame to derail that system. We have got to get in the
    business of missile defense. It will give us a minimal
    capability. It will get us into the production business. It
    will get us into the operational side of operational concepts,
    training, et cetera, et cetera. And most importantly, we will
    demonstrate to ourselves and the rest of the world that when
    you deploy a missile defense interceptor, the sun will actually
    come up the next day, and a lot of these bugaboos will go away.
    So, I think we need to do that.
        Can we get by with one site? No, sir, we cannot. I think we
    need to start thinking about multiple sites. It seems to me
    that the option would be three or six. When we were talking
    about a ground-based component of the GPALS architecture, we
    were talking about six, but there was a sort of GPALS light for
    three sites. When you think about it, it makes sense. You put
    something in Alaska, something in the north central United
    States, and something in New England. If someone is going to
    launch a missile at the United States from, let us say, Iran or
    from Libya, the great circle route from that part of the Middle
    East really brings you to Boston. That is the logical target.
    So, if you are worried about that, not just North Korea,
    logically you are somewhere in Maine. So, you need to get
    multiple sites. So, that would be my first point. We need to
    get multiple sites.
        Second, we need to get sensors go free for several reasons.
    One, that is what glues the whole system together.
        Two, you just touched upon it with the Shemya radar.
    Sensors are a source of never-ending argument. I do not know
    what an ABM radar is, Mr. Chairman. We do not really know what
    1972 terms mean anymore as we hit the new millennium. What is
    an ABM radar? What if we can make something on the interceptor
    itself to do the whole job? Is that an ABM radar? We are just
    going to go on and on. We are going to have endless compliance
    problems, not just for ourselves, but look at the compliance
    problems we have had with the Russians. Sensors go free is the
    way we not only can go forward now but we can start laying the
    groundwork for what we are going to need to do in another
    decade. We need to get out of the business of limitations on
    sensors.
        The third thing we need to do you raised with the idea of
    the ship-borne missiles. If we need to have follow-ons--and I
    cannot imagine a situation in human defense for 10,000 years in
    which there has not been a follow-on to something--then we need
    to start looking at things like space and sea based NMD. We do
    not even know if we can do those things yet. We have not even
    got a proof of concept. We do not need to deploy them. We do
    not need deployment rights for that. We do need development and
    testing to go free.
        Those would be my three basic elements. I would go for
    multiple sites, sensors go free, and development and testing go
    free.
        Senator Hagel. Thank you.
        Mr. Secretary.
        Mr. Hadley. I would agree with that.
        I would put two cautions down, and they are political
    cautions actually. The first explains why I mentioned in my
    testimony that we need to put ballistic missile defense in the
    context of a global effort against weapons of mass destruction
    in which we would invite our friends and allies and even
    countries like Russia and maybe even China to participate. It
    is not just an issue of the ABM Treaty. There is a political
    aspect that even our allies are concerned about, and that is
    whether a national missile defense is a vehicle for one of two
    things, both of which give even our friends pause. One is a
    sort of fortress America--that we can withdraw behind a
    national missile defense and be safe from all the threats that
    some of our friends and allies have to face.
        Or two is it in some sense a protection that is going to
    allow us to deploy forces anywhere, anytime. I think one of the
    consequences of Kosovo is going to be some real questions about
    what the United States is doing in the world. I think if we are
    going to move forward on national missile defense in a way that
    is not going to be disruptive of relations not just with Russia
    but also with some of our friends and allies, we have to put it
    in the broader context of a global effort against weapons of
    mass destruction.
        Second, I think we have got to make sure that we'd not let
    the best be the enemy of the good. If we were going to throw
    out the ABM Treaty, we would probably have a different NMD
    architecture. But the architecture of national missile defense
    has been changed too many times. We need to stabilize an
    architecture, get something deployed and get in the business,
    as Dave Smith said, of defending the country.
        So, I would urge us to have a political context as we go
    forward, ask for what we need in ABM Treaty relief, but not let
    the best be the enemy of the good because the objective here
    has to be to get into the business of defending the country. We
    are already late. That is the message of the Rumsfeld
    Commission. We have got threats and no capability to deal with
    them. We are already late. If we start changing baseline
    architectures and the like, we are going to be even later. We
    have got a defenses gap not a missile gap, and we do not want
    to make that gap any bigger.
        Senator Hagel. Thank you.
        Ambassador Joseph.
        Ambassador Joseph. Senator, I think that if we do choose to
    renegotiate the ABM Treaty, then the experience of 1992
    provides a very good model. In fact, the components that
    Ambassador Smith has just mentioned were the very components of
    our negotiating position back then. These included:
        Elimination of all restrictions on sensors. Very
    straightforward and very simple.
        Elimination of all restrictions on development and testing.
    Again, very straightforward and very simple. This would allow
    for flexibility for the future whether it be space-based
    approaches or sea-based approaches or any other approach,
    including mobile land-based.
        Elimination of restrictions on the transfer of ABM systems
    and components to allow for the type of cooperative
    relationships that underly Mr. Hadley's last point on the
    context in which we conduct these negotiations and move forward
    with defenses. This is particularly the case given the concerns
    of our allies, which, in fact, may pose obstacles equal to
    those are that posed by Russia.
        And finally, relief on the number of fixed land-based sites
    and interceptors that are permitted. Our position then was six
    sites, and up to 1,200 interceptors.
        I think in fact we do know the basic components of what our
    negotiating position should be and we do not need to take a
    whole lot of time doing the inevitable. In my experience it is
    inevitable in arms control that we will negotiate among
    ourselves before we take our position to Russia. This is a
    luxury that we cannot afford. We need to move forward now and
    we need to move forward recognizing that whatever agreement we
    make with Russia must provide flexibility for the future, given
    that the threat is going to continue to change and become more
    challenging. We cannot fix now on a compromise that permits us
    to defend only against the threat of today. We need to look
    beyond that.
        Senator Hagel. Gentlemen, you have all been very helpful,
    and the committee appreciates your individual contributions. I
    might also add thank you for what you have done for this
    country over the years, and hopefully at some point you will
    have renewed opportunities to bring new leadership in this
    area. Thank you very much.
        Mr. Lee, welcome. You have been patient. I know that you
    will probably add on to what some of your colleagues have said,
    and I know you have some very specific points that you wish to
    make. On behalf of the committee, thank you very much for
    coming this morning, and please proceed with your testimony.

      STATEMENT OF WILLIAM T. LEE, FORMER ANALYST FOR THE DEFENSE
     INTELLIGENCE AGENCY; ADJUNCT FELLOW, CENTER FOR STRATEGIC AND
                 INTERNATIONAL STUDIES, WASHINGTON, DC

        Mr. Lee. Well, thank you, Senator. I very much appreciate
    the opportunity and I want to thank you personally and all
    members of the committee for this opportunity.
        I am going to concentrate on the new evidence, the bottom
    line of which is the ABM Treaty is not and was not from the
    beginning a valid contract.
        Since the publication of my book on this subject a year
    ago, we have had a lot of additional evidence that has
    confirmed the conclusions of that book. The Soviets violated
    article I prohibiting national ABM defenses by deploying more
    than 10,000 dual purpose, anti-aircraft and anti-missile, SAM/
    ABM, missiles supported by 17 huge radars on the Soviet
    periphery. Moreover, Russia is now developing yet another new
    SAM/ABM.
        Based on what they had been told by the Secretary of
    Defense and other senior U.S. officials, the Soviets most
    likely entered the SALT negotiations expecting two things: they
    could negotiate a treaty banning national ABM defenses in both
    superpowers while continuing to develop and deploy their dual
    purpose SAM/ABM systems; and second, U.S. satellites would not
    detect the violation. The treaty certainly confirmed such
    expectations.
        The key to this whole thing, one of the keys to their whole
    approach to it, was these large radars, which I can talk to in
    some detail, but they provide what is called battle management,
    target tracking data. That mode of operation was dictated by
    the technology constraints on the Soviet Union at the time and
    continued through the cold war. With the exception of one late
    model, the maximum velocities of Soviet ABM missiles were a
    fraction of that of the targets. Thus an ABM interceptor with a
    velocity of 2 kilometers a second had to be launched with an
    ICBM warhead with some 1,200 kilometers from its target. The
    big radars on the periphery and those at Moscow provided the
    long-range tracking data so that the ABM's could launch in
    time. This applied to all Soviet ABM systems, both the legal
    systems at Moscow that we call a Galosh and ABM-3, as well as
    to the SAM/ABM's that we call SA-5 and SA-10.
        The general staff wrote the script for the Soviet treaty
    negotiators, five of whom belonged to the military-industry
    cabal that had secured Politburo approval of national ABM
    defenses by mid-1962. To keep it short, the Soviet Union was in
    violation of article I of the ABM Treaty when they signed it.
    They had been in violation at that point 10 years.
        The new evidence that I submit is now conclusive fills in
    the intelligence gaps that we had from our national collection
    systems. The sources for this are very credible. They include
    the former Premier of the Soviet Union, Mr. Kosygin; General
    Colonel Vitintsev, who was the former commander of Soviet ABM
    and space defense forces for 20-odd years; a gentleman named
    Kisun'ko who was the chief designer of the Moscow system and
    general designer of ABM systems for the Soviet Union; a number
    of other very credible sources.
        The essential part here is that all of these Russian
    sources agree on three critical issues in the intelligence
    record. The SA-5 and the SA-10 were designed from the beginning
    as dual purpose SAM/ABM's from relatively low cost air defense
    components.
        The big radars that we call the Hen House and LPAR, the
    first and second generation respectively, were designed to
    provide target tracking data to make these systems work. They
    were not initially designed just as early warning radars. As
    far as the record from Russian sources is concerned, the early
    warning function was recognized only later, some years later,
    after they had designed these for the battle management target
    tracking function.
        Furthermore, these sources provide the information, though
    in less detail than on other things, that by the mid-1970's the
    Soviet Union had a national ABM and space defense command-
    control system to make it all work. We ourselves by the early
    1970's verified that the dual purpose missiles, the SAM/ABM's
    had the nuclear warheads they required.
        Russia is now developing and is about to deploy a major
    update to this system, their national defenses, called the S-
    400. It represents a major improvement in all respects--I can
    go into details some other time--on the capabilities of the ABM
    defenses that they inherited from the Soviet Union.
        I want to say something briefly about the implications of
    this, that modernizing the Russian national ABM systems with
    the S-400 will challenge the credibility of the U.S. nuclear
    deterrent, especially if our arsenal is reduced from the 6,000
    warhead level permitted under SALT I to 3,500 under SALT II
    that the Senate already has ratified. Existing Russian ABM
    defenses probably nullified the small British and French
    nuclear deterrents and would be able to exact some significant
    attrition on our forces. Even before Kosovo, Russia was
    committed to maintaining its strategic advantage in this
    respect. They understand very well that the side that has both
    offenses and defenses has an advantage over the side that only
    has offenses. It is like we have two boxers, one with one hand
    tied behind his back. The guy with both hands free has an
    advantage.
        In sum, the 1972 ABM Treaty was neither a valid contract
    nor the cornerstone of strategic stability. Amended by these
    1997 protocols, the treaty would be a monument to strategic
    instability by legalizing major improvements in Russia's ABM
    defenses while the U.S. and our allies remain totally
    vulnerable. There simply is no excuse for failing to protect
    the United States population, our military forces, and our
    allies in the name of a treaty that never was a valid contract
    with a State that no longer exists.
        Now, I can use these graphs here and so forth to illustrate
    some of these points, if you wish, or I understand you are
    under considerable time pressure. Do you want to go directly to
    questions?
        [The prepared statement of Mr. Lee follows:]
                      Prepared Statement of William T. Lee
        Thank you Senator Hagel. I wish to thank you and all Committee
    members for the opportunity to testify on this issue. My testimony
    represents the findings of my own research and should not be construed
    as the position of any organization with which I am associated.
        Since the publication of my book, ``The ABM Treaty Charade: A Study
    in Elite Illusion and Delusion,'' in May 1997 additional evidence has
    confirmed the conclusions in my 1997 book: the Soviets violated Article
    1 prohibiting national ABM defenses by deploying more than 10,000 dual
    purpose, anti-aircraft and anti-missile (SAM/ABM) missiles supported by
    17 huge radars on the Soviet periphery. Moreover, Russia is developing
    yet another SAM/ABM.
        Based on what they had been told by Secretary of Defense McNamara
    and other senior U.S. officials, the Soviets most likely entered the
    SALT negotiations expecting: a) they could negotiate a Treaty banning
    national ABM defenses in both superpowers while continuing to develop
    and deploy their SAM/ABM systems; and b) U.S. satellites would not
    detect the violation.
        The Treaty certainly was consistent with such expectations by
    permitting, among other things, deployment of 18 large phased array
    radars--Hen House and LPAR (Krasnoyarsk type)--that delivered target
    tracking data to the SAM/ABMs under the guise of providing only early
    warning of ballistic missile attack.
        The battle management mode of operation was dictated by technology
    constraints. With the exception of one late model, the maximum
    velocities Soviet ABM missiles were a fraction of that of the targets.
    Thus an ABM interceptor with a velocity of 2 km./sec. had to be
    launched when an ICBM warhead was some 1,200 km. from its target. The
    big radars--on the periphery and at Moscow--provided the long range
    target tracking data so that the ABMs could launch in time. This
    applied to all Soviet ABM systems--Galosh and ABM-3 as well as to the
    SAM/ABMs.
        The General Staff and KGB wrote the script for Soviet Treaty
    negotiators, five of whom belonged to the military-industrial cabal
    that had secured Politburo approval of national SAM/ABMs defenses by
    mid-1962. When the Soviets signed the ABM Treaty banning such defenses
    in 1972, much of their first generation national SAM/ABM defense
    system--the SA-5 and Hen House radars--was in place, and construction
    was about to begin on the first LPARs for the second generation SA-10
    SAM/ABM system. The Soviets were in violation of Article 1 of the ABM
    Treaty when they signed it.
        In the U.S. national intelligence estimates (NIEs) the issue of
    whether the Soviets were deploying national SAM/ABM defenses turned
    primarily on four questions. First, were the SA-5 and SA-10 designed to
    be only (anti-aircraft) SAMs, or dual purpose SAM/ABMs? Second, were
    the Hen House and LPAR radars passing only early warning data, or
    battle management target tracking data as well? Third, was there a
    central ABM command authority with an adequate command-control system?
    Fourth, did the SAM/ABM missiles have nuclear warheads? All NIE
    participants agreed that if the answers to these questions were
    ``yes'', then the Soviets were deploying national SAM/ABM defenses.
        Until 1967 CIA and other NIE players agreed that the SA-5 could be
    a SAM/ABM. Similarly, in the 1960s the NIEs stated that Hen House
    radars were providing ``early tracking and prediction data for use by
    ABM launch units'' and ``initial (target) track data'' for the Moscow
    ABM, which is tantamount to saying that the Hen Houses were battle
    management radars. Then CIA switched its position--the SA-5 was only a
    SAM, the radars were only for early warning--and the majority soon
    followed.
        Neither of these changes in CIA assessments was the result of
    evidence on either SA-5 and Hen House design, or actual radar
    operations. In rare moments of candor, CIA acknowledged that there
    simply were too many ``intelligence gaps'' in the evidence from U.S.
    technical collection systems to resolve these issues. The CIA and the
    NIE majority simply systematically violated the rule that absence of
    evidence is not evidence of absence, e.g. if satellites did not detect
    the Soviet radars passing battle management target tracking data,
    therefore, only early warning data were being passed. When the U.S.
    identified nuclear warhead storage at the SA-5 complexes in the early
    1970s NIE positions remained the same.
        Conclusive evidence filling in the ``intelligence gaps'' began to
    surface publicly from U.S. and Russian sources only in 1992. The
    principal Russian sources for that evidence are:

      --A.N. Kosygin, former Premier and Politburo member for over three
            decades;
      --Gen. Col. Yu.V. Votintsev, Commander ABM (PRO) and Space Defense
            (PKO) Troops, 1967-85;
      --G.V. Kisun'ko, Chief Designer of the Moscow ABM system 1954-75,
            General Designer of the Soviet Empire's ABM systems from 1956
            until the mid-1970s, and two of his colleagues;
      --two Soviet Military Attaches--one a military intelligence (GRU)
            general officer; and
      --various books and articles from the Russian press.

        The top three Russian sources--Kosygin, Votintsev, Kisun'ko--had
    unique access to all Soviet ABM programs. All the Russian sources are
    consistent on three critical points refuting CIA's position:

      --the SA-5 and SA-10 were designed as dual purpose SAM/ABMs from
            relatively low cost air defense components;
      --the Hen House and LPAR radars were designed to provide target
            tracking (battle management) data to the SAM/ABMs; and
      --a national ABM and space defense command-control system was
            installed by the mid-1970s.

        In 1991 a U.S. inspection team independently confirmed the LPAR
    battle management role. The de-classified NIEs and the Russian sources
    confirm the same function for the Hen House radars. There are no
    factual contradictions between the NIEs and the Russian sources. For
    the most part, the Russian sources simply fill in the intelligence
    gaps. Tables 1 and 2 list the major milestones for the Moscow ABM and
    national SAM/ABM programs. Table 3 gives the sequence of flight tests
    for all Soviet ABM programs (excluding directed energy systems).
        In sum, the evidence now is conclusive: the ABM Treaty was DOA.
    Russia inherited most of the illegal Soviet national ABM defenses and
    is trying to maintain and modernize them. The Russian military
    understands that the side with both strategic offensive and defensive
    forces has a great advantage over the side that relies only on
    offensive weapons, and that the advantage multiplies as offensive
    arsenals are reduced by START agreements. Meanwhile, Russia's national
    ABM defenses can protect them from the nuclear and missile
    proliferation to which they are contributing so much.
        To this end, over the past decade Russia has developed a new SAM/
    ABM, the ``S-400'', which is scheduled for deployment next year. Both
    the S-400 SAM/ABM and its predecessor, the SA-10, can operate with the
    same interceptor missiles.
        The new long range S-400 missile can engage ballistic missiles with
    ranges of (at least) 3,500 km., as compared to about 2,000 km. for the
    latest model SA-10 missile, even without target tracking data from
    battle management radars. The new ``super-maneuverable'' short range S-
    400 missile provides two layers of ABM defense instead of one layer for
    previous SAM/ABMs (SA-5 and SA-10), and has the potential for non-
    nuclear kill of strategic ballistic missiles.
        Given long range target tracking data from Russia's battle
    management radars and nuclear warheads, the S-400 should be highly
    effective against all types of strategic ballistic missiles--medium
    range through ICBMs. Furthermore, production of three new radars of
    various ranges is underway.
        Inasmuch as S-400 missile characteristics correspond to the limits
    set in the 1997 protocols to the ABM Treaty, Russia obviously
    negotiated those protocols to legalize modernization of its illegal
    national ABM defenses. Nevertheless, the Clinton administration
    persists in the illusion that the protocols only defined the technical
    boundaries between ``theater'' and ``strategic'' ABM systems.
        Modernizing Russian national ABM defenses with the S-400 will
    challenge the credibility of the U.S. nuclear deterrent, especially if
    our arsenal is reduced from the 6,000 warhead level permitted by SALT I
    to 3,500 under the SALT II Treaty that the Senate already has ratified.
    Existing Russian ABM defenses probably nullify the small British and
    French nuclear deterrents. Even before Kosovo Russia was committed to
    maintaining its strategic military advantage in this respect.
        In sum, the 1972 ABM Treaty was neither a valid contract nor the
    ``cornerstone of strategic stability.'' Amended by these protocols the
    Treaty would be a monument to strategic instability by legalizing major
    improvements in Russia's ABM defenses while the U.S. and our Allies
    remain totally vulnerable. There simply is no excuse for failing to
    protect the U.S. population, our military forces, and our Allies in the
    name of a Treaty that never was a valid contract with a State that no
    longer exists.

                      TABLE 1_MOSCOW ABM SYSTEM MILESTONES

          1953   Seven Marshals: need ABM
                 Politburo charges KB-1 with proposal
          1954   ``System A''--competing battle management radar designs,
                  non-nuclear ``V-1000'' interceptor, 25km altitude
          1956   Begin construction Sary Shagan ABM polygon
                 Test nuke air blast ABM warhead
          1959   V-1000 interceptor flight tests
                 Moscow defended area requirements specified
          1960   V-1000 simulated SS-3/4 intercepts
                 Neutron & x-ray kill mechanisms understood
                 ABM at Moscow by October 1967
          1961   V-1000 direct hit SS-4 RV, battle management mode
                 11 intercepts SS-4 RVs
                 Simulated nuke warheads test on V-1000 missile
                 ECM decoy & terminal guidance tests of system A
                 ``Operation K-1/2'' nuclear tests
                 System ``A-35'' with Galosh interceptor instead of system A
          1962   Deploy Galosh system (A-35) at Moscow by October 1967
                 Operation ``K-3/4/5'' nuke tests
                 Develop x-ray nuke warhead
          1963   Project ``Battering Ram''--SS-11 as ABM with 10 MT
          1964   Reduce Galosh (A-35) radars and launchers
                 Cancel ``Battering Ram''
       1966-67   Galosh flight tests begin at Sary Shagan
          1967   Develop ABM X-3 (``A-135'') (copy U.S. 1966 Nike-X)
          1972   ``Experimental Exploitation'' Galosh system
          1973   Modernize Galosh, some anti-MIRV capability
          1975   Engineering development ABM-3 (derivative of X-3)
          1978   Modernized Galosh ABM system Aaccepted into Service
          1982   Extraordinary Strategic Force Exercise
          1987   ABM-3 accepted into services

              TABLE 2_SA-5/l0 NATIONAL SAM/ABM PROGRAM MILESTONES

          1953   Split in KB-1 on ABM feasibility
          1954   ``Zonal ABM'' alternative to system A
                 Design Hen House and Dog House battle management prototypes
                 Military set on semi-mobile systems for the future
                 PVO Strany Mission = Aerospace Defense
          1956   Begin construction Sary Shagan ABM test range
                 Reject SAM/ABM to replace system A at Moscow
          1957   Project ``Saturn'' (SA-5) SAM/ABM
          1960   Developing ``Universal SAM/ABM'' (SA-5)
          1961   Politburo approved SA-5/Hen House deployment
          1962   Program entrenched in Politburo, VPK, MOD, MIL industry
                 Cancel Leningrad SAM/ABM, Replace with SA-5
                 Project ``Battering Ram'' (SS-11 ABM with 10 MT warhead)
                 SA-5 SAM/ABM flight tests begin
          1963   Three ABM systems for Moscow: Galosh, SA-5, & SS-11
          1964   Canceled project ``Battering Ram''
          1967   SA-5 accepted into service at least as SAM (anti-aircraft)
                 Reconfirmed SA-5/Hen House program, modernize SA-5
                 Develop: SA-10 (``S-300'') SAM/ABM and LPAR radars
                 Rejected project ``Aurora'' national ABM (ABM-X-2)
                 Formed ABM/Space Defense Command
          1973   SA-5 Modernization flight tests in ABM mode
          1974   Nuke storage appears at SA-5 complexes
          1975   Acceptance SA-5 into service as ABM (SAM/ABM)
          1977   Deployment SA-5/Hen House national ABM virtually complete
          1980   First LPARs operating but unreliable
                 SA-10 (SAM/ABM) deployment begins
          1982   Extraordinary Strategic Forces exercise with ABM
          1985   1st SA-10 modernization (``S-300PMU''), LPARs reliable
          1992   SA-10 modification (``S-300PMU-1'')
          1995   SA-10 modification (``S-300PMU-2'')

    TABLE 3_APPROXIMATE SEQUENCE OF ABM SYSTEM TESTING AT SARY SHAGAN RANGE

       1958-60   System A (original Moscow ABM), Griffon (Leningrad SAM/
                  ABM), SA-2 as tactical ABM ?
       1961-62   System A, Griffon (SAM/ABM), SA-5 (SAM/ABM)
       1963-65   SA-5 (SAM/ABM)*
       1966-67   SA-5, Galosh
       1967-70   Galosh, SA-5 (1st modernization)
       1971-75   Galosh, SA-5 (2nd modernization), probably ABM X-3
       1976-80   Galosh, SA-5, ABM X-3

    * A few Griffon tests--the Leningrad system--could have continued into
      early 1963.

                                     ______

     Annex 1: Questions Submitted by the Honorable Curt Weldon to the CIA
                              and CIA's Responses
          subject: responses to the honorable curt weldon's questions
        QUESTION 1. The ABM Treaty was based on acceptance of Russian
    declarations that the large phased array radars located on the
    periphery of the former Soviet Union are only early warning radars. How
    confident are we of that assessment?
        ANSWER 1. We are confident in our assesment that Russia's large
    phased array radars (LPARs), as well as the older Hen House radars,
    perform a ballistic missile early warning (BMEW) function against
    strategic and shorter-range missiles from potentially hostile
    countries. NOTE: The ABM Treaty was signed before the first LPAR was
    constructed, although the Hen House radar network was aready in
    operation.

        QUESTION 2a. I would like to know the current operational and
    maintenance status of the Hen House and LPAR radars in Russia and the
    CIS states.
        ANSWER 2a. General Sokolov, Russia's commander of the missile
    attack early warning system group, has recently claimed that his
    deployed forces continue to function ``with the utmost reliability and
    operational efficiency.'' The press has touched on the same theme with
    coverage of the Pechora, Russia, and Lyaki, Azerbaijan, LPARs,
    specifically singling out the Pechora facility for the role it played
    in correctly identifying the Norwegian sounding rocket as non-
    threatening in the January 1995 incident. At the same time, the Russian
    press has noted the difficulties introduced by having many of these
    radars now located outside Russia's borders. In particular, the press
    has covered extensively Azerbaijan's continuing efforts to pressure
    Russia into large annual payments for operating the Lyaki LPAR, and has
    also commented on the serious loss of the Skrunda LPAR in Latvia, razed
    in 1995 before completion as a result of negotiations with the newly
    independent Latvian government.

        QUESTION 2b. In light of the Administration's official [policy] on
    Russian nuclear targeting, changes in U.S. strategic forces, and
    Russian military budgets, why does Russia want to continue to operate
    those radars?
        ANSWER 2b. Russia continues to rely on its ballistic missile early
    warning network, in conjunction with its launch detection satellites,
    to assure the viability of its strategic nuclear deterrent forces.
    These radars and satellites provide Moscow with its warning capability
    against strategic ballistic missile attack from the United States, the
    UK, France and China, as well as warning of tactical ballistic missile
    attack from other neighboring nations. Despite public statements that
    recognize significantly reduced tensions and the greatly reduced
    likelihood of a future nuclear confrontation, Russian military planners
    appear unwilling to accept the risk to Moscow's nuclear deterrent that
    the absence of an eary warning capability could pose.

        QUESTION 3. Since only the SA-12 is identified as a theater missile
    defense (TMD) system, how confident are we that the SA-10 is not a TMD?
        ANSWER 3. The SA-12 is the only Russian, Ukrainian and Belarusian
    system subject to the Confidence-Building Measures Agreement; however,
    this does not imply that the SA-12 is the only TMD system possessed by
    former Soviet states. The SA-10 has in fact been advertised by the
    Russians as a TMD system.

        QUESTION 4. I would like to know how many of the SA-10 complexes in
    Russia and the CIS states have been retrofitted with the later models
    of that system?
        ANSWER 4. We are unable to supply an unclassified response to this
    guestion.

        QUESTION 5. There have been recurring concerns that SA-5 and SA-10
    systems were ABMs as well as SAMs. Has any new evidence of this issue
    appeared over the last decade? If so, what is the assessment of such
    evidence?
        ANSWER 5. We are unable to supply an unclassified response to this
    guestion.

        QUESTION 6a. What was the velocity and range of the target missiles
    employed to test the Galosh and ABM X-3 systems prior to IOC?
        ANSWER 6a. We are unable to supply an unclassified response to this
    question. NOTE: The ABM-X-3 system never attained IOC.

        QUESTION 6b. What are the maximum velocities [of] the Galosh,
    Gorgon, and Gazelle missiles?
        ANSWER 6b. We are unable to supply an unclassified response to this
    guestion.

        QUESTION 6c. How do these numbers compare with the definition of
    low and high velocity TMD systems in the amendments and agreed
    statements?
        ANSWER 6c. As ABM interceptor missiles, none of these missiles is
    subject to either the First or Second Agreed Statement of 26 September
    1997. The First Agreed Statement addresses, inter alia, interceptor
    missiles other than ABM interceptor missiles, whose demonstrated
    velocity does not exceed 3.0 km./sec. The Second Agreed Statement
    addresses, inter alia, interceptor missiles other than ABM interceptor
    missiles whose demonstrated velocity exceeds 3.0 km./sec.

        QUESTION 7a. When was the last NIE on Soviet or Russian/CIS
    strategic defense published?
        ANSWER 7a. The last NIE on strategic air defenses in Russia and
    other states of the former Soviet Union was published in May 1994. The
    last NIE to address the ABM system was NIE 11-3/8 in 1991.

        QUESTION 7b. When is the next NIE on this subject scheduled to be
    completed?
        ANSWER 7b. In May 1997, the National Intelligence Officer for
    Strategic Programs and Nuclear Proliferation sponsored a two-day
    conference to assess the status of Russian ballistic missile defenses.
    The review of current activity did not appear to indicate the need for
    a new NIE at this time.

                                     ______

    Annex 2: Implications of the ABM Treaty Protocols and Agreed Statements
        The ABM Treaty Protocols and agreed statements that the U.S. signed
    with Russia and three successor States in 1997, and which are to be
    submitted to the U.S. Senate for ratification, have a number of
    implications that may not be apparent at first glance. The demarcation
    between strategic anti-ballistic missile systems (ABMs) and theater
    missile defense systems (TMDs) is the most complex issue, hence is
    treated first in some detail. Other implications may be treated in a
    summary fashion. Essentially, the Protocols and agreed statements
    border on the absurd.
                                tmd definitions
        In 1972 Dr. John Foster told Congress that a TMD is any interceptor
    with a maximum velocity of about 2 km./sec., tested against a target
    with 40 km. maximum altitude, which is typical of a Scud missile--
    flight range 150-300 km. However, the 1972 ABM Treaty did not address
    this issue.
        In the ABM Treaty Protocols TMD parameters are defined as:

        Low velocity TMD
      --``demonstrated'' interceptor velocity not to exceed 3 km./sec.;
      --target velocity not to exceed 5 km./sec.;
      --target flight range not to exceed 3,500 km.

        High Velocity TMD
      --interceptor velocity greater than 3 km./sec.
      --target velocity and flight range limits same as for low velocity
            TMD.

        According to conventional wisdom, and the U.S. interpretation of
    both Soviet and Russian compliance with the ABM Treaty, the only
    ``strategic'' ABM systems were those deployed at Moscow, Galosh and
    ABM-3, and the only ``TMD'' system was the SA-12 deployed in limited
    numbers in the 1980s. The SA-5 and SA-10 were only ``SAMs,'' i.e. anti-
    aircraft systems.
        The U.S. ``intelligence community'' and the Clinton administration
    have simply ignored all evidence from both Russian and U.S. sources
    that the SA-5 and SA-10 really were dual purpose anti-aircraft and
    anti-missile systems (SAM/ABMs) deployed nation-wide in violation of
    Article 1 of the 1972 ABM Treaty. Russian plans to modernize its
    illegal ABM defenses with the new ``S-400'' SAM/ABM also are being
    ignored.
        The following discussion focuses on the implications of Dr.
    Foster's and the 1977 Protocol criteria for ``strategic ABM'' and TMD
    systems.
       background on soviet abm test practices and system characteristics
        In the mid 1950s the Soviets concluded that they could develop ABM
    systems using only medium range ballistic missiles (MRBM) as targets.
    The Galosh and ABM-3 systems, which were deployed only at Moscow, and
    the dual purpose anti-aircraft/missile (SAM/ABM) SA-5 and SA-10/12
    systems, which were deployed nationwide, were all developed at the Sary
    Shagan range (on the Western shore of Lake Balkhash). Target missiles
    were SS-3 and (mostly) SS-4 MRBMs launched from Kapustin Yar (across
    the river from Stalingrad, now Volgograd): maximum target velocity 3-
    3,5 km./sec.; range 2,000 km.; and maximum altitude
    1,000 km.
        With the exception of one interceptor (Gazelle) deployed at Moscow
    in 1987, all Soviet ABM systems had maximum velocities that were a
    fraction of that of ICBMs. Although the maximum velocity of the Galosh
    missile has not been reported, it most probably was around 2 km./sec.
    This also applies to the Gordon, a modernized Galosh, currently
    deployed with the ABM-3 at Moscow. Moreover, these interceptors had low
    initial launch acceleration rates.
        The interceptor missiles of the first generation SAM/ABM, the SA-5,
    had maximum velocities around 1.5 km./sec. Both the original SA-10
    (Russian S-300P) interceptor and the anti-aircraft interceptor for the
    SA-12 (Russian S-300V) had maximum velocities of 1.7 km./
    sec. Subsequent modernizations of the SA-10 (Russian S-300 PMU-1 & PMU-
    2) raised the maximum velocity to over 2 km./sec., approaching the 2.4
    km./sec. maximum velocity of the SA-12 TMD interceptor. (The SA-12 was
    a variant (S-300V) of the SA-10 designed to protect Soviet Ground
    Forces from both tactical aircraft and missiles).
        In order to intercept ICBM RVs with velocities of 6-7 km./sec., all
    of these interceptors, both for the ABM systems deployed only at Moscow
    and the SAM/ABM systems nation wide, had to be launched when the target
    RVs were on the order of 1,200 km., or more, from the intended targets.
    Consequently, all of these systems depended upon long range target
    tracking data from large phased array radars located on the Soviet
    periphery and in the Moscow area.
        All of the large phased array radars--Hen House, LPARs, Dog House
    and Cat house--were designed initially as ``battle management'' target
    tracking radars because, given the available interceptor missile
    technology, there was no other practical ABM architecture, either for
    defense of Moscow or of the Soviet Union, during the Cold War. When
    Soviet designers began working on ABM systems in 1954-55, they had no
    choice but to adopt ``battle management'' architecture. Early warning
    of a missile attack was a bonus mission for those radars, not the
    initial design objective.
        It is hardly possible to overemphasize these points, or of the
    consequences of U.S. failure to grasp them.
        Table 4 summarizes these data and various U.S. attempts to define
    the differences between ``strategic'' and theatre (TMD) ABM systems.

             TABLE 4--SOVIET ABM & TMD SYSTEM AND TARGET PARAMETERS
    ------------------------------------------------------------------------
                                         R&D targets SS-4     Operational
                                               MRBM          targets ICBMs
    ------------------------------------------------------------------------
    Range.............................  2,000        10,000 km.+
                                                      km.
    Velocity (Max.)...................       3.5 km./sec.       6-7 km./sec.
    ------------------------------------------------------------------------

                         INTERCEPTOR VELOCITIES_KM./SEC.

    Moscow ABM Systems

        Galosh..............................................\1\2
        Gordon.................................................2
        Gazelle................................................... very high
    National SAM/ABMs
        SA-5......................................................   1.4-1.6
        SA-10
            1980..................................................       1.7
            1985.............................................1.7
            1992..................................................      >2.0

    \1\ Not available but likely approximation.

                      DR. JOHN FOSTER'S 1972 TMD PARAMETERS

    Target range.........................................300 km.
    Target velocity...............................................2 km./sec.

                    1997 ABM TREATY PROTOCOLS' TMD PARAMETERS

    Low Velocity TMD:                                                  S-400
        Target range: 3,500 km..............................       3,500 km.
        Target velocity: 5 km./sec..........................    4.8 km./sec.
        Interceptor velocity: 3 km./sec............\2\3 km./sec.
    High Velocity TMD:
        Same target range and velocity as low velocity
        Interceptor velocity: >5 km./sec.

    \2\ Specifics not available, but probably about 3 km./sec.

        The new ``S-400'' from the same design school that produced the SA-
    2, SA-5, and SA-10 pushes even the Protocol criteria to the limits, if
    not beyond. The S-400 is designed to intercept missiles with velocities
    up to 4.8 km./sec. and a range of 3,500 km. While maximum velocities of
    either of the two new S-400 interceptors were not available at this
    writing, expect them to be at or near the Protocol limit of 3 km./sec.
    for both the long range and short range models.
        Trying to delineate between ``strategic'' and ``theater'' ABM
    systems by interceptor velocity and target parameters only results in
    confusion and contradictions when the U.S. does not comprehend the
    implications of the Soviet ABM architecture, and persists in the
    erroneous notion that Soviet/Russian SAM/ABMs are only SAMs, i.e. not
    even TMD systems much less strategic ABMs as well. Thus systems that
    are strategic ABMs by one definition are only TMDs by others.
    Components of the same system are equally contradictory.
        By Dr. Foster's target altitude and range criteria--40 and up to
    300 km. respectively--all these systems, whether officially recognized
    ``ABMs'' deployed at Moscow, or the SAM/ABMs deployed nationwide that
    the U.S. insists are only ``SAMs'', are strategic ABMs. The same
    applies to the new S-400 SAM/ABM.
        On the other hand, by Foster's interceptor velocity criteria, the
    SA-5 and the original SA-10 are only TMDs, but the modernized SA-10 and
    one of the SA-12 interceptors are strategic ABMs. Galosh and its
    successor Gordon deployed with ABM-3, which the U.S. considers are the
    only strategic ABMs the Soviets developed and deployed, are somewhere
    on the borderline between strategic ABMs and TMDs.
        By the 1997 Protocol target and interceptor velocity criteria, only
    the Gazelle interceptor of the ABM-3 qualifies as a strategic ABM
    component. All other systems and components are only TMD systems with
    the S-400 falling on the border line between ``Low'' and ``High''
    velocity TMD interceptors.
        Some qualification of the Soviet practice of using mostly SS-4
    MRBMs as targets for all ABM systems is in order. During the
    extraordinary 1982 Soviet strategic forces exercise, SS-11 and SS-20
    missiles were fired into Sary Shagan from an unspecified range. SA-5s
    and SA-10 SAM/ABMs, of course, were present. However, only the
    ``rapidly deployable'' version of the ABM X-3 with the small phased
    array radar was present at Sary Shagan in 1972. While ABM-3 is a
    derivative of ABM X-3, its ``Pillbox'' radar is unique to Moscow.
        While the ABM X-3 reportedly was active against the SS-11 and SS-20
    targets in 1982, no intercepts--attempt, failure, success--have been
    reported. Was SA-5/10 activity also detected at the time? One recent
    Russian source hints that some targets on the Sary Shagan may have been
    boosted to ICBM velocities, i.e. 6-7 km./sec., but such activity has
    not been reported publicly by Western sources.
        Despite billions of dollars of satellite collection effort the U.S.
    Intelligence Community cannot certify with much confidence which
    specific systems were, or were not, tested against which targets during
    more than three decades of operations on the Sary Shagan range. All
    technical intelligence can provide is a circumstantial case indicating
    a high probability of intercept activity in some time periods with many
    information gaps remaining.
        In sum, U.S. attempts to define the difference between strategic
    ABMs and TMD systems have resulted in hopeless contradictions and
    confusion. U.S. technical intelligence cannot answer a lot of key
    questions with any confidence. Nor can U.S. intelligence negate reports
    from highly credible Russian sources that the SA-5 and SA-10, in
    conjunction with the Hen House and LPAR battle management radars, were
    SAM/ABMs. CIA's assessments on these issues are fatally flawed.
                       other implications and conundrums
        Despite all the evidence to the contrary, the 1997 Protocols
    declare that all of the large phased array ABM battle management radars
    deployed on the periphery of the former Soviet Empire are only ``early
    warning'' radars that Russia may continue to operate. Russia still
    controls at least nine, possibly as many as 13, of these radars. Thus
    this provision of the protocols legalizes Soviet violation of Article 1
    of the ABM Treaty by deploying these radars with some 10-12,000 SAM/ABM
    interceptors, and Russia's continued violation with its inherited
    portion of Soviet ABM defenses.
        Indeed the protocols explicitly permit passing battle management
    tracking data from these radars, and from space based sensors, provided
    such data are not used to intercept strategic ballistic missiles! The
    only way the U.S. could verify that the data were not being used in the
    ABM mode would be to launch a missile strike on Russia, and accept the
    consequences.
        Despite the fact that Russia is marketing the SA-10 as the world's
    best TMD, with characteristics equal to or considerably superior to the
    SA-12, only the latter is declared to be a TMD prohibited from being
    tested in the ABM mode. The same applies to modernization of Russia's
    massive violation of the Treaty with the S-400, which also has an
    export version.
        Inasmuch as all TMD deployments by the U.S. and Russia must be
    proportionate to the threat, Russia evidently may veto any U.S. global
    TMD deployment simply by declaring it disproportionate to the local
    threat.
        Each side is to notify the other if it has plans to test a ``high
    velocity'' interceptor but deployment is not prohibited, and ``Treaty
    compliance . . . will remain the national responsibility of each
    Party.'' Verification of land based ABM programs depends entirely on
    Russia informing the U.S. of its plans!
                                     ______

      ANNEX 3_POST SOVIET UNION RUSSIAN MISSILE & AIR WEAPONS DEVELOPMENT

    SS-X-26                     SRBM                   Operational
    SS-27                       ICBM                   Operational 1997-98
    SS-N-X-28                   SLBM                   ?
    ``Borey'' Class             SSBN                   2005-07
    New Long Range Bomber       .....................  MOD Specs submitted
    TU-95 & 175                 .....................  Maintain, modernize
                                                        with new ASM
    AS-X                        Long range ? ASM       .....................
    AS-X                        Medium range ASM       .....................
    S-400 SAM/ABM:              .....................  .....................
      New missile               400 km. range          Deployment 2000
      New missile               160 km. range          .....................
    New target tracking radars  Long range             .....................
                                Medium range           Deployment 2000-03
                                OTH, range 5-600 km.   .....................
    Modernized SU-27            .....................  Schedule ?
    New MIG model               .....................  Flight testing
    New Fighter                 .....................  Schedule ?
    AS-X                        Short range ASM*       Schedule ?
    ------------------------------------------------------------------------

    * Derivative of short range S-400 missile.

        Senator Hagel. Well, Mr. Lee, thank you. We are looking at
    a vote probably around noon. So, I am going to shoot to try to
    have this wound up by then.
        But in the time we have, which is valuable because you have
    so much to contribute, and I do not want to interfere with
    that. Why do we not take a couple of minutes at your
    instruction to take the committee through what you think are
    the most important points related to the charts in connection
    to your testimony.
        Mr. Lee. Thank you, sir.
        If you look at that first chart, the Hen House radars, that
    is the first generation of the system. What we never were able
    to determine from technical intelligence collection was whether
    those radars were designed for this long-range tracking mode so
    they could look out, see the targets coming far enough in
    advance so that the missile could fire and the interceptor
    could fire, intercept, and make up for that difference in the
    velocity.
        We simply did not know whether they were just for early
    warning or for both purposes. The majority in the intelligence
    community concluded they were only for early warning. There was
    never any basis in the technical evidence to prove that. It was
    simply which way you chose to interpret ambiguous data that
    could be interpreted either way.
        We now have the evidence from the Russian sources that
    these systems were designed that way from the very beginning,
    and as I said, indeed the realization that they were good for
    early warning seems to have come after they had originally
    designed them for the target tracking function.
        The second chart simply--and I could not find one that is
    complete with all the radars from both generations. The second
    chart shows one of the radars at Moscow. There is another one
    that complements the coverage of that that is not shown--I did
    not have that available--and some of those in the second
    generation. At the end they had 17 of these deployed. They
    negotiated the ABM Treaty to permit 18 of them, and we did not
    realize that was what we were doing, that we were legalizing
    the first generation and the second generation deployment. The
    Krasnoyarsk radar would have been the 18th, but the Politburo,
    from the record available, made the decision to put that at
    Krasnoyarsk rather than Aral'sk and so they lost that radar
    before the Soviet Union collapsed.
        Russia controls something like six or eight of these. I can
    give you the list of them still. The important part is they
    have what is necessary still for a viable national ABM defense
    and the upgrade even with what they have lost in Latvia and
    incomplete radar in the Ukraine.
        The other charts. From putting together the declassified
    national intelligence estimates and the data from the Russian
    sources, let me emphasize all this new data from the Russian
    sources does not conflict with any of the facts we had from our
    national collection systems. They are complementary. I could
    not a find a single case where there is a factual
    contradiction. The information from the Russian sources fills
    in the gaps that we did not and could not have collected from
    our national collection systems.
        The important points on that first one, it is sort of the
    history of the Moscow ABM system. The critical things are we
    did not realize that the Russians started out with a non-
    nuclear ABM system for Moscow. Indeed, they achieved the first
    non-nuclear hit-to-kill back in March 1961 on a strategic
    missile, what they used as a target, an intermediate range
    system, the SS-4, a medium range system.
        Not realizing that, we never understood the sequence of the
    development of that system and the Moscow system. We did not
    realize that that original system had been canceled and
    replaced with quite a different version of it in the Moscow
    system that we call the Galosh. So, there was a 5-year gap
    there, which I will come back to, in which we were just
    misinterpreting the evidence we had because we did not
    understand what the Russians had started out with and what they
    had changed over to. That was simply a limit of the national
    intelligence collection. We could not have expected them to do
    any better as long as they limited it to that.
        The other important thing is that I already mentioned but
    will reiterate that the Russian sources are very clear that all
    of these systems, all these radars that were on the previous
    two graphs, all of them were designed to provide the long-range
    target tracking data so that the low velocity interceptors,
    including those at Moscow, as well as these dual purpose SAM's
    could be fired in time to get up there and meet the warhead
    before it was too late.
        The second table shows the points in their national ABM
    system, dual purpose, anti-aircraft and anti-missile designed
    from the beginning which we suspected for a long time, but then
    refused to believe from fairly standard anti-aircraft
    components that they could be adapted with the big radars to
    make them dual purpose. All that really does is confirm that is
    really what went on, and gave us a key date that the Politburo
    had approved this national deployment of the first generation
    no later than mid-1962. That is the basis of my statement that
    they were in violation of the treaty, article I of the treaty
    for 10 years before they signed it.
        Now, because of various problems of providing the nuclear
    weapons and the command-control system, that original national
    ABM dual purpose system probably was not operational until
    about 1975. It may have been partially operational just in the
    Moscow area because they had the big Moscow radar there 1969-
    70. But otherwise, it was probably not.
        I think those are the most important points I wish to make.
        Table 3 simply shows that sequence of test firing, what
    went on at Sary Shagan, the development center. And the
    critical thing that was missed in the national intelligence was
    that from sometime around mid-1962 and until 1966, all of the
    test firings we saw going on there that we could not interpret
    very well as to what was going on--and this is very clear from
    the estimates--all of that, those 4 to 5 years, was the initial
    test firing of the dual purpose SA-5 system. And we simply did
    not recognize that that was what was going on.
        That is the essence of it, sir.
        Senator Hagel. Thank you. Mr. Lee, thank you very much.
        Let me ask a couple of questions which tie into
    specifically your timeframe here and some of the testimony. You
    have claimed that there is new evidence from Russian sources
    relating to that country's violations of the ABM Treaty. You
    have also claimed in your book and testimony this morning that
    this evidence has been known to the U.S. Government for some
    time.
        What happened? Did the CIA not pass it on or DIA failed to
    act on it. Did our political leaders know it and did not
    respond? Would you take us through what your interpretation of
    that failure was about, why and what it has meant to our
    defense capabilities?
        Mr. Lee. To the best of my knowledge, sir, they simply have
    not been reading it.
        Senator Hagel. They meaning who?
        Mr. Lee. The CIA and DIA simply have not been reading this
    evidence, not been looking at it at all. In fact, a little over
    a year ago, CIA replied to seven questions from Congressman
    Weldon clearly stating that they had not read any of this
    evidence whatsoever, much less reexamined the entire past
    history and told anybody about it.
        I sure would like to see your colleagues in the
    Intelligence Committee ask some questions on precisely that
    point. It would be kind of nice to have the Rumsfeld Commission
    look into this or a new version of the Rumsfeld Commission look
    into this whole issue.
        Senator Hagel. When was that testimony given to Congressman
    Weldon?
        Mr. Lee. The questions were submitted by Congressman Weldon
    in late 1997. I have the questions and the replies that were
    returned to him in early 1998. There was not a specific date on
    that. Those are appended as annexes to my testimony.
        Senator Hagel. I will, of course, include all your
    testimony and your accompanying materials, charts, and the
    questions and answers for the record.
        That is rather serious, what you have said about our
    intelligence community. Is that an ongoing, long-term problem
    do you believe in our intelligence community, that they have
    not paid attention to these things?
        Mr. Lee. Sir, how much time do you have to listen to past
    records of not paying attention to what was in the open press?
    I have often made kind of a harsh remark that the Soviet Union
    could always hide some of its deepest and darkest secrets very
    effectively by putting them in books and on the newsstands.
        Senator Hagel. If Russian public sources on this matter
    complement the evidence from the U.S. collection systems, then
    what are the key intelligence gaps that are filled in by this
    information?
        Mr. Lee. The key gaps are the radars were designed from the
    beginning as battle management radars for target tracking data,
    and at some point--I can only date it 6 years later--they
    realized they could use them for early warning too and went
    ahead and used them for both purposes.
        Second, the SAM/ABM's were designed from the beginning as
    dual purpose systems, recognizing they were not terribly
    effective by U.S. standards, not terribly effective at all
    perhaps--we do not know and maybe we really do not want to know
    because the only way you could really test it was to have a
    little nuclear exchange, which is not exactly desirable. But
    they went ahead and did the best they could, and they have a
    long record of doing that in many areas and that was simply
    overlooked, that they would do the best they could with what
    they had and they were determined to defend the USSR and now
    Russia no matter what. And that is the story from the new S-400
    also.
        The third point is clear. They did put together the command
    and control system to make it all work, although it probably
    was not very effective or really satisfactory until about the
    mid-1970's as best as I can reconstruct it.
        Senator Hagel. As you laid out rather clearly in your
    testimony and the accompanying charts, in view of the evidence
    that you have brought to light over the years, including what
    you have shared with us this morning and what we do know that
    is available on Soviet violations of the ABM and biological
    weapons treaties, in your opinion were there ever any cold war
    arms control agreements that the Soviets adhered to?
        Mr. Lee. Well, they adhered to the agreement not to test
    nuclear weapons in the atmosphere, although there was always
    some question about bending in some cases. The issue of whether
    they observed the threshold test ban treaty was always very
    controversial. It is generally accepted that they did, but
    there was a significant minority of highly qualified people who
    repeatedly--and you could get some of those to testify in
    detail on this--repeatedly that they did violate that one.
        The critical thing about the interim agreement on the
    offensive weapons, the SALT agreements on the offensive
    weapons, was that they negotiated those so they did not have to
    violate them in any significant degree except to encode the
    telemetry, which they proceeded to do. They simply negotiated
    those to their level of sufficiency which was defined by their
    military doctrine and strategy, their nuclear targeting
    strategy, and therefore they did not have to violate them.
        The biological treaty was totally violated. The chemical
    treaty, we really do not know, but probably also violated.
        It is hard to find anything except the hot line and a few
    things like that that they really strictly adhered to. But the
    SALT agreements and so forth, they only violated them when they
    really believed it was in their interest to do so. They did not
    violate them capriciously.
        Senator Hagel. Mr. Lee, unfortunately, the bewitching hour
    has arrived and I am going to have to go do my duty here.
        I first want to thank you for your contributions. They are
    very important and we are grateful for what you have shared
    with us this morning in addition to the information that you
    have brought with you. I suspect we will want to do a little
    followup work here. We have really not had adequate time to
    cover as much as we need to cover. If it is acceptable with
    you, we may have followup questions that we would like to ask
    you to respond to, and we would give those to you and we would
    insert those answers for the record. Again, thank you.
        Mr. Lee. Thank you, sir, for the opportunity, and anytime
    day or night I am at your service.
        Senator Hagel. Thank you.
        [Whereupon, at 12:01 p.m., the committee was adjourned, to
    reconvene at 2:15 p.m., May 25, 1999.]

                       THE LEGAL STATUS OF THE ABM TREATY

                                  ----------

                             TUESDAY, MAY 25, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 2:31 p.m., in
    room D-562, Dirksen Senate Office Building, Hon. John Ashcroft
    presiding.
        Present: Senator Ashcroft.
        Senator Ashcroft. This hearing will come to order, please.
    I am delighted to convene this hearing. You are witnessing what
    happens to a Senator who tries to run up five flights of
    stairs. But I am delighted to be here.
        Senator Biden, I believe, will be coming later. We have had
    several votes scheduled, which commenced at 2:15. They will be
    intermittent, and I thought it best if we could get underway.
        This is a hearing on the legal status of the ABM Treaty.
    First ratified in 1972, the treaty has been, for some, the
    sacred text of arms control agreements, the underlying basis
    for nuclear arms reduction with the former Soviet Union. Even
    though the level of offensive nuclear warheads increased by
    over 400 percent after the treaty entered into force,
    proponents of the agreement continue to argue it is the
    ``cornerstone of strategic stability.''
        It is my view that the treaty has never achieved its
    objectives and, at present, poses a particularly grave threat
    to the security of the United States and to the stability of
    the world. It is in this context that we discuss the legal
    status of the treaty.
        When the Soviet Union disintegrated in 1991, the State
    Department was in the process of reviewing how it would handle
    U.S. treaty relationships with the USSR. In an effort to
    encourage stability during a chaotic time, the Bush
    administration adopted a model of ``presumptive continuity''
    where treaties with the USSR would be presumed to continue with
    appropriate successor States.
        The Bush administration's policy was not an automatic
    continuity or continuation of all treaties with the USSR, but
    provided a framework to review each agreement and determine
    necessary changes. Such a review was particularly important for
    arms control agreements. As President Clinton stated in a
    letter to Congressman Gilman in March 1997, and I quote,
    ``Particularly in the area of arms control, a case-by-case
    review of each agreement was necessary.''
        In that case-by-case review, the administration negotiated
    a memorandum of understanding [MOU] on succession to the ABM
    Treaty. The MOU, was concluded in September 1997 and identified
    Ukraine, Belarus, Kazakhstan and Russia as the successor states
    to the treaty. This selection of successor states seemed to be
    consistent with a statement by the President that, and I quote,
    ``neither a simple recognition of Russia as the sole ABM
    successor (which would have ignored several former Soviet
    States with significant ABM interests) nor a simple recognition
    of all NIS, Newly Independent States, as full ABM successors
    would have preserved fully the original purpose and substance
    of the treaty, as approved by the Senate in 1972.'' That was
    the letter from the President to Congressman Gilman.
        The administration went on to reiterate in that same letter
    that the MOU on succession ``works to preserve the original
    object and purpose of the treaty.''
        To summarize, the administration believed in 1997 that
    recognition of Russia alone or all of the successor states
    together would not have preserved the original purpose of the
    treaty. The administration negotiated the memorandum of
    understanding to preserve the original purpose of the treaty.
    The administration's initial formulation for the legal status
    of the ABM Treaty begs two questions, however. First, if the
    MOU is essential to preserve the original purpose of the ABM
    Treaty, what is the status of the treaty since the MOU has not
    been ratified? Second, if the MOU is rejected by the Senate,
    what will be the status of the ABM Treaty?
        The answer to those two questions must be the same, and it
    is the answer that this administration does not want to hear.
    The fact that this treaty cannot be carried out without the MOU
    is evidence enough that it expired with the collapse of the
    Soviet Union. The fact that this treaty cannot be carried out
    without the MOU on succession is evidence enough that this
    treaty will remain void if the Senate rejects the succession
    arrangement.
        That is a key point my colleagues in the Senate need to
    understand. This is not just a debate on a succession
    arrangement to the ABM Treaty. If the administration ever
    submits the MOU on succession to the Senate, this will be a
    vote to revive an expired treaty, a vote on the ABM Treaty of
    1999.
        When faced with this uncomfortable fact and the awareness
    that the Senate would almost certainly reject MOU, the
    administration modified its legal argument on ABM Treaty
    succession. When pressed on the status of the ABM Treaty if the
    MOU on succession is rejected by the Senate, President Clinton
    wrote to Congressman Gilman and Senator Helms in a subsequent
    letter.
        ``Belarus, Kazakhstan and Ukraine each has ABM Treaty-
    related assets on its territory. Each has participated in the
    work of the SCC, [the Standing Consultative Commission of the
    treaty], and each has affirmed its desire to succeed to the
    obligations of the former Soviet Union under the treaty.
        ``Thus,'' and I continue to quote, ``a strong case can be
    made that even without the MOU, these three states are parties
    to the treaty . . . Finally, the United States and Russia
    clearly are parties to the treaty. Each has reaffirmed its
    intention to be bound by the treaty, and each has actively
    participated in every phase of the implementation of the
    treaty, including the work of the SCC; and each has on its own
    territory extensive ABM Treaty-related facilities. Thus there
    is no question that the ABM Treaty has continued in force and
    will continue in force, even if the MOU is not ratified.'' That
    letter from Clinton to Gilman and Helms, May 21, 1998.
        Only 6 months after stating that neither Russia alone nor
    all the successor states could fulfill the original purpose of
    the treaty, the President argues that clearly Russia is a party
    to the treaty, and a few other successor states may also be
    parties. Such inconsistency from the administration on a matter
    this important to U.S. national security is troubling. Indeed,
    administration lawyers briefing Congress in January 1998 could
    not say whether any country which emerged from the Soviet Union
    was bound by the ABM Treaty.
        Such ambiguity within the administration makes it all the
    more clear that the ABM Treaty will expire and will remain void
    unless the Senate approves the MOU on succession. The MOU is
    necessary because the treaty cannot be fulfilled without
    amending. The territory covered by the treaty is changed.
    Additional parties are added to the treaty. Treaty mechanisms,
    such as the Standing Consultative Commission, are altered, and
    the strategic landscape upon which the ABM Treaty was based is
    dramatically different. These are substantial amendments to the
    treaty. And in our constitutional form of government, the
    Senate has a responsibility to advise and consent on such
    amendments.
        As is well established in U.S. law, and I quote, ``A
    significant amendment to a treaty must follow the mandate of
    the treaty clause and therefore must be proposed by the
    President and be ratified following the advice and consent of
    the Senate,'' New York Chinese T.V. Programs, Inc., vs. U.E.
    Enterprise, 954 Fed 2d.
        I find it hard to understand why my Democratic colleagues,
    many of whom waged an extensive fight in the eighties over the
    interpretation of several words in the ABM Treaty, are not
    defending the Senate's prerogative to approve these dramatic
    changes in the treaty today. Congress has made its will clear
    with regard to succession arrangements for the ABM Treaty.
        The Senate gave its advice and consent to the CFE Flank
    Document in May 1997 and attached a condition that any
    successor arrangement to the ABM Treaty be submitted for the
    Senate's advice and consent. In accepting this condition, the
    administration is bound not to recognize any party to the ABM
    Treaty until the Senate approves a successor arrangement.
        We will discuss the compelling constitutional and
    international law arguments surrounding the treaty status
    today, but the condition in the CFE Flank Document for me
    removes all doubt that this treaty is not in force until the
    Senate approves a succession arrangement. It is noteworthy that
    the State Department's senior arms control lawyer takes a
    different view than the White House on the legal status of the
    ABM Treaty.
        While the President argues that the treaty certainly is in
    force, at least with Russia, Mary Elizabeth Hoinkes recently
    stated, ``Absent a succession agreement, we do not have a firm
    treaty relationship.'' She made that statement in the Forum on
    the ABM Treaty sponsored by the Center for National Security
    Law of the University of Virginia School of Law in February of
    this year. She may be swimming against the tide within the
    administration, but her intellectual honesty is appreciated.
        The President is bound by the Constitution to submit these
    treaty amendments to the Senate for advice and consent. And the
    condition of the CFE Flank Document will help him fulfill his
    constitutional responsibilities. I do not believe that he can
    de facto recognize Russia, or any other former Soviet Republic,
    as a party to the treaty before the Senate consents.
        Some of the legal arguments that will be discussed today
    are complex, but the central point of this hearing is that the
    ABM Treaty is expired and will remain expired unless the Senate
    approves a succession arrangement.
        I thank you all for your additional patience.
        It is now my pleasure to call the first panel to testify,
    and I am pleased that each of you has come today. Mr. Douglas
    Feith, former Deputy Assistant Secretary of Defense for
    Negotiation Policy and a partner at Feith and Zell. Mr. Feith
    is accompanied by Mr. George Miron, a partner at Feith and
    Zell; Mr. David Rivkin, partner at Hunton and Williams,
    accompanied by Mr. Lee Casey, associate at Hunton and Williams;
    and finally Professor Michael Glennon, professor of law at the
    University of California, Davis.
        Welcome to the committee. Mr. Feith, if you would please,
    begin.

        STATEMENT OF DOUGLAS J. FEITH, FORMER DEPUTY ASSISTANT
     SECRETARY OF DEFENSE FOR NEGOTIATION POLICY; PARTNER, FEITH &
                          ZELL, WASHINGTON, DC

        Mr. Feith. Thank you, Mr. Chairman. My colleague, George
    Miron, and I are honored to have the opportunity to testify
    before this committee this afternoon. First of all, I would
    like to extend condolences to the committee on the passing of
    Admiral Bud Nance. Admiral Nance and I worked together at the
    National Security Council at the beginning of the Reagan
    administration.
        Senator Ashcroft. We are very pleased to receive those. The
    entirety of the Foreign Relations Committee mourns his passing
    and misses him profoundly.
        Mr. Feith. Mr. Chairman, the full testimony that we wish to
    present is contained in our legal memorandum, which we provided
    to the committee. The memorandum is lengthy, so we respectfully
    ask the committee to include it in the record of these
    hearings. And I now propose to make only a summary opening
    statement.
        Senator Ashcroft. Without objection, the entire memorandum
    will be part of the record of the hearing.
        Mr. Feith. Thank you.
        Mr. Chairman, our legal analysis of the status of the ABM
    Treaty of 1972 concludes that following the Soviet Union's
    extinction, the ABM Treaty did not become a treaty between the
    United States and the Russian Federation. Rather, as a
    bilateral, non-dispositive treaty, the ABM Treaty lapsed when
    the USSR ceased to exist. In December 1991, new states that
    emerged on what had been USSR territory declared independence,
    announced the formation of the Commonwealth of Independent
    States, and proclaimed that the USSR, ``as a subject of
    international law and a geo-political reality, no longer
    exists.''
        Soon thereafter, the United States acknowledged that the
    USSR had dissolved and is no more. The United States has
    officially expressed its view that upon a state's extinction,
    that state's bilateral treaties automatically lapse. The U.S.
    Government has acted in accordance with that view in connection
    with the extinction of the Kingdom of Hawaii in 1898, the
    dissolution of the Austro-Hungarian Empire at the end of World
    War I, and the dissolution of Yugoslavia in 1992.
        The U.S. view is consistent with the opinion of
    international legal scholars who have addressed that issue.
    With consistency over more than 200 years, scholarly writings
    state that when a state ceases to exist, or becomes extinct in
    legal parlance, that state's treaties have no further effect.
        Such treaties are said to lapse. The lapsing occurs by
    operation of law, which is to say automatically, upon the
    state's extinction. It does not require action by any other
    treaty party. No judicial decision or applicable treaty
    contradicts this principle. And U.S. Supreme Court has
    established that works of international legal scholars can be
    accepted as evidence of the law.
        In 1898, the State Department stated, as a principle of
    public law, that a treaty expires when one of the parties
    ``loses its existence.'' In support, the State Department
    quoted from General Henry Halleck well-regarded treatise,
    International Law, which was written in 1861.
        Halleck said that the principle of public law, which causes
    treaties, when a party ceases to exist, to be regarded as
    abrogated, is thus stated, ``The obligation of treaties, even
    where some of their stipulations are in their terms perpetual,
    expire in case either of the contracting parties loses its
    existence as an independent state.''
        In 1897, U.S. Secretary of State John Sherman invoked
    scholarly works to explain to the Government of Japan why the
    treaties made by the Kingdom of Hawaii would not survive the
    U.S. annexation of the Kingdom's territory. He said it is not
    the treaty by which the U.S. annexed Hawaii that abrogates the
    Hawaiian Kingdom's treaties, rather ``it is the fact of
    Hawaii's ceasing to exist as an independent contractant that
    extinguishes those contracts.''
        Likewise in 1902, Secretary Elihu Root ordered to be
    published a report by a law officer in the Office of the
    Secretary of the War Department, which dealt with the treaty
    obligations of extinct states. That report says, ``Where there
    is a complete change not only of sovereigns but of sovereignty
    of necessity the agreement ends.'' Similar observations include
    the following: ``It is clear that political, including personal
    and dynastic treaties of the extinguished state fall to the
    ground.'' That was written by Professor Amos Hershey, the
    University of Indiana, in 1911.
        ``The extinction of the personality of a state results
    traditionally in an abrogation of all political and military
    treaties concluded between the now extinct entity and other
    states,'' Professor Gerhard von Glahn, University of Minnesota,
    in 1962.
        Many other scholars have expressed the same opinion.
        Neither U.S. nor Russian officials deny that the Soviet
    Union ceased to exist in December 1991. Its international legal
    personality terminated. In other words, it is not in dispute
    that the Commonwealth of Independent States and the U.S.
    Government in 1991 were accurate when they declared that the
    Soviet Union had ceased to exist as a state.
        I also would emphasize that the ABM Treaty, as we all know,
    was a bilateral treaty. As noted, scholars for over 200 years
    have been nearly unanimous in concluding that upon a state's
    extinction, its bilateral treaties that are not dispositive
    lapse. And a treaty is dispositive if it irrecoverably fixes a
    right to a particular territory; for example, delineates a
    boundary between states. And the ABM Treaty was not a
    dispositive treaty. Dispositive treaties are also supposed to
    be--are treaties that were intended to be perpetual, no matter
    what happens to the parties. The ABM Treaty, by its own terms,
    can be abrogated on 6 months' advance notice by the parties,
    which also makes it clear that it was not a dispositive treaty.
        No judicial decision contradicts the scholarly view that a
    non-dispositive, bilateral treaty of an extinct state does not
    automatically become a treaty of its successor or successors.
    The United States has never declare that it considered itself
    bound by international law to accept as a treaty partner the
    successor to an extinct state.
        Now the President has constitutional authority to grant
    recognition to foreign states. Were he to rely on that
    authority as the legal basis for making a treaty, bringing into
    being a treaty that would not otherwise exist, he would put the
    United States under a legal obligation to other states without
    Senate advice and consent. The President's recognition
    authority cannot be exercises in a manner that would nullify
    the U.S. Senate's authority to advise and consent to the making
    of a treaty.
        The President cannot, without Senate approval, bring a
    lapsed treaty back to life by declaring that a given foreign
    state is the successor or continuation of an extinct state. And
    it is principles of international law that govern the issue of
    whether a state has become extinct.
        However broad the President's authority may be to recognize
    states and governments of states under the U.S. Constitution's
    Receive Ambassadors Clause, it is necessarily limited by the
    specific constitutional requirement for Senate advice and
    consent on the making of treaties. In sum, when the USSR became
    extinct, its bilateral, nondispositive treaties lapsed, hence
    the ABM Treaty lapsed. By operation of law, that is
    automatically. It did not become a treaty between the United
    States and Russia.
        The practical conclusion relating to this committee's work
    of this description of the law is that the multilateralization
    memorandum of understanding that you, Mr. Chairman, discussed
    in your opening remarks is not simply an amendment of an
    existing treaty. It would be a new treaty. If approved, as you
    noted, it would create the ABM Treaty of 1999. And if not
    approved, the status quo would continue. That is, there would
    be no legally binding international obligation prohibiting the
    United States from deploying ballistic missile defenses.
        Thank you, Mr. Chairman.
        Senator Ashcroft. Thank you very much. Mr. Feith.
        [The prepared statement of Mr. Feith and Mr. Miron and
    material provided subsequent to the hearing follows:]

            Prepared Statement of Douglas J. Feith and George Miron

      Did the ABM Treaty of 1972 Remain in Force After the USSR Ceased to
                            Exist in December 1991?

                                      and

       Did it Become a Treaty Between the United States and the Russian
                                  Federation?

                                i. introduction
        This Memorandum concludes that, following the extinction of the
    Union of Soviet Socialist Republics (``USSR''), the Anti-Ballistic
    Missile (``ABM'') Treaty of 1972 did not become a treaty between the
    United States and the Russian Federation. Rather, as a bilateral, non-
    dispositive treaty, the ABM Treaty of 1972 between the United States
    and the USSR lapsed when the USSR ceased to exist.
        In December 1991, new States that emerged on what had been USSR
    territory declared independence, announced the formation of the
    ``Commonwealth of Independent States'' (``CIS'') and proclaimed that
    the USSR ``as a subject of international law and a geopolitical reality
    no longer exists.'' By December 21, 1991, the list of States belonging
    to the CIS and subscribing to the view that, with the CIS's
    establishment, ``the Union of Soviet Socialist Republics ceases to
    exist,'' comprised Azerbaijan, Armenia, Belarus, Kazakhstan,
    Kyrgyzstan, Moldova, the Russian Federation, Tajikstan, Turkenistan,
    Ukraine and Uzbekistan. Soon thereafter, the United States acknowledged
    that the USSR ``is no more.''
        In recent centuries, instances in which States have ceased to exist
    have not been numerous. The United States has officially expressed its
    view that, upon the extinction of a State, such State's bilateral
    political treaties automatically lapse, and has acted in accordance
    with that view in connection with the extinction of the Kingdom of
    Hawaii in 1898, the dissolution of the Austro-Hungarian Empire at the
    end of World War I, and the dissolution of Yugoslavia in 1992. The U.S.
    view is consistent with the opinion of international legal scholars who
    have addressed that issue. With consistency over more than a hundred
    years, scholarly writings state that when a State ceases to exist
    (becomes ``extinct'') that State's bilateral treaties have no further
    effect. Such treaties are said to lapse or ``fall to the ground.'' The
    lapsing occurs by operation of law--that is, automatically upon the
    State's extinction. It does not require action by any other treaty
    party. No judicial decision or applicable treaty contradicts this
    principle, and the U.S. Supreme Court has established that ``where
    there is no treaty and no controlling executive or legislative act or
    judicial decision,'' works of international legal scholars are
    acceptable as evidence of the law.
        President William Clinton has taken the view that the ABM Treaty of
    1972 remains ``in force.'' Representative Ben Gilman, Chairman of the
    House Committee on International Affairs, asked President Clinton in a
    June 1997 letter which State, if any, does the United States believe is
    now its ABM Treaty partner. President Clinton in November 1997 replied
    that the ``succession'' issue is ``unsettled,'' adding:

              Neither a simple recognition of Russia as the sole ABM
            successor (which would have ignored several former Soviet
            states with significant ABM interests) nor a simple recognition
            of all NIS [newly independent states] as full ABM successors
            would have preserved fully the original purpose and substance
            of the Treaty, as approved by the Senate in 1972.

        Representative Gilman and Senator Jesse Helms, Chairman of the
    Senate Foreign Relations Committee, wrote President Clinton in March
    1998 and stated that, if the Administration cannot now identify any
    country in addition to the United States that is bound by the treaty,
    then Congress would have to conclude that the treaty is no longer in
    force. In May 1998, President Clinton replied that the ABM Treaty is in
    force between the United States and the Russian Federation. He did not
    state the principle of law on which he based this conclusion. Nor did
    he explain how this conclusion could be squared with his November 1997
    response to Representative Gilman.
    A. Assistant Attorney General Dellinger's Paper
        The most extensive publicly available discussion of the ABM
    Treaty's current legal status produced by a Clinton Administration
    official is in the June 29, 1996 memorandum from Walter Dellinger,
    Assistant Attorney General, Office of Legal Counsel, to Presidential
    Counsel Jack Quinn (``Dellinger Paper''). The Dellinger Paper contends
    that as a matter of international law the ABM Treaty did not lapse, for
    these reasons: (i) The Treaty imposed a permanent burden on the
    parties'' respective territories, which would bring the ABM Treaty of
    1972 within the international legal doctrine of ``dispositive''
    treaties (a treaty is dispositive if it irrevocably fixes a right to
    particular territory, e.g. it delineates a border between two
    States),\1\ (ii) U.S. past diplomatic practice assumes that bilateral
    treaties ``generally'' survive a State's extinction, and (iii) Article
    34 of the 1978 Vienna Convention on Succession of States in Respect of
    Treaties embodies a general principle of law that bilateral treaties
    survive a State's extinction. This Memorandum, concluding that the
    Dellinger Paper is incorrect regarding international law, specifically
    refutes the three foregoing bases for the contention that the ABM
    Treaty of 1972 did not lapse.
    ---------------------------------------------------------------------------
        \1\ The concept of dispositive treaties is elaborated infra Part
    IV.K.
    ---------------------------------------------------------------------------
        A.A.G. Dellinger separately argues that irrespective of
    international law, the President can bring a treaty into existence
    without Senate consent by exercise of ``exclusive'' Executive powers.
    As this Memorandum shows, however, the President has no power to bring
    a treaty into existence without Senate consent.
    B. Methodology and Scope of this Memorandum
        After addressing erroneous Constitutional law assertions in the
    Dellinger Paper, this Memorandum examines the sources of international
    law bearing on the question of whether, upon the USSR's extinction, the
    ABM Treaty became a treaty between the United States and the Russian
    Federation. This analysis does not describe the principles of
    international law that govern the question of whether a party to a
    treaty in force has grounds to terminate that treaty.\2\ Nor does it
    describe the rules of international law for allocating the assets, the
    debt or the archives of a State that has become extinct. Those rules,
    parts of the law of ``State succession,'' do not resolve the question
    of how a State's extinction affects what had been that State's
    bilateral treaties. For example, although the United Nations and the
    European Community have declared that no State is a continuation of the
    Social Federal Republic of Yugoslavia (``SFRY''), they nonetheless
    expect the successor States of the extinct SFRY to bear portions of the
    SFRY's debt (in proportions to be determined by a continuing conference
    of the successor States that is called the ``Brussels Process'').\3\
    ---------------------------------------------------------------------------
        \2\ Grounds for termination of a treaty include the other party's
    breach or fraud, and a fundamental change of circumstances that defeats
    the treaty's object and purpose (the latter is referred to as the
    doctrine of rebus sic standibus).
        \3\ The Brussels Process is described in Declaration of Christopher
    R. Hill, Director, Office of South Central European Affairs, United
    States Department of State, filed in Federal Republic of Yugoslavia v.
    Park-71st Corp., No. 95 Civ. 3659 (AGS) (S.D.N.Y.) (Sept. 21, 1995),
    complaint dismissed, 913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). See also
    The Ottoman Debt Arbitration (1925), I.R.I.A.A. 529 (debt of the
    dissolved Ottoman Empire); Administration of Finances v. Ornstein, Ann.
    Dig. 75 Roumanian Court of Cassation, Third Chamber (1926) (debt of a
    successor of the Austro-Hungarian Empire); Restatement (Third) of the
    Foreign Relations Law of the United States Sec.  209 (1986); P. K.
    Menon, The Succession of States in Respect to Treaties, State,
    Property, Archives and Debt 158-201 (1991); Parry and Grant,
    Encyclopedic Dictionary of International Law 279 (1986); Thomas Baty,
    Division of States: Its Effect on Obligations, 9 Transactions of the
    Grotius Society, Problems of War and Peace 119, 121-26 (1923)
    (published on behalf of the British Institute of International and
    Comparative Law (1962)); Arthur Berridale Keith, The Theory of State
    Succession with Special Reference to English and Colonial Law 99-100
    (1907).).
    ---------------------------------------------------------------------------
        This Memorandum attempts to describe international law as it would
    be understood by a disinterested judicial tribunal resolving a dispute
    between two States as to whether a particular treaty is in force
    between them. This analysis assumes that the tribunal would (i) decide
    for itself the relevant questions of fact and law and (ii) give the
    parties' contentions the weight they deserved but would not be bound by
    these contentions.
    C. Summary of Conclusions
        The pertinent sources of international law support the conclusion
    that, upon the USSR's extinction, the ABM Treaty lapsed, so it no
    longer has the force of international law. This conclusion is based on
    the following observations:

              1. In December 1991, as accurately characterized by
            declarations of the CIS States and of the United States, the
            changes that had recently occurred on what had been the USSR's
            territory caused the USSR, by operation of law, to cease to
            exist as a State--that is, such changes brought to an end the
            international legal personality of the USSR.
              2. The ABM Treaty of 1972 was a bilateral treaty.
              3. The opinions of recognized scholars constitute evidence of
            customary international law in a case in which there is (a) no
            controlling judicial decision, (b) no controlling State
            practice and (c) no otherwise controlling treaty.
              4. Scholars are nearly unanimous in concluding that, upon a
            State's extinction, its bilateral treaties that are not
            ``dispositive'' do not by operation of law, i.e.,
            automatically, become treaties between the extinct State's
            successor and the extinct State's treaty partner--that is, such
            bilateral treaties lapse.
              5. No judicial decision contradicts the scholarly view that a
            non-dispositive bilateral treaty of an extinct State does not
            automatically become a treaty of its successor or successors.
            The U.S. practice is generally consistent with the scholars'
            view.
              6. The United States has never before considered itself bound
            by international law to accept as its treaty partner the
            successor to an extinct State.
              7. The 1978 Vienna Convention on Succession of States in
            Respect of Treaties does not bind the United States because the
            United States is not a party to the Convention.
              8. The 1978 Convention in any event would not impose the ABM
            Treaty on the United States because the imposition would be
            incompatible with the ABM Treaty's object and purpose.
              9. Article 34.1 of the 1978 Vienna Convention on the
            succession of States in Respect of Treaties has not passed into
            customary international law.
              10. The ABM Treaty did not become a treaty between the United
            States and the Russian Federation by devolution.
              11. The ABM Treaty was not a dispositive treaty.
                             ii. u.s. constitution
        This Memorandum deals primarily with the international law issues
    relating to the current legal status of the ABM Treaty of 1972. As the
    Dellinger Paper, however, puts forward a combination of international
    law and U.S. Constitutional law arguments, it is necessary to say why
    Dellinger's Constitutional law contentions are erroneous.
        The Dellinger Paper asserts that, regardless of whether under
    international law the ABM Treaty of 1972 became a treaty with the
    Russian Federation, an ABM treaty was brought into existence by
    agreement of the Russian Federation and the President of the United
    States, notwithstanding the absence of U.S. Senate advice and consent.
    Dellinger contends that the terms of what he argues is an ABM treaty
    between the United States and the Russian Federation are not so
    different from those of the ABM Treaty of 1972 as to constitute a
    substantive amendment of the latter. Dellinger does not argue that an
    amendment to the ABM Treaty could have been Constitutionally
    accomplished by an ``Executive Agreement''--that is, by an agreement
    that would not have required Senate action. Rather, he cites powers--
    i.e., to interpret treaties, to implement treaties, and to recognize
    the existence of foreign States--that he asserts rest ``exclusively''
    with the President. Dellinger also seems to argue that the Senate is
    imputed with knowledge of the breadth (as Dellinger understands it) of
    Presidential power vis-a-vis treaty-making, and therefore that, when
    the Senate consents to a treaty, it implicitly authorizes later
    Presidents to decide without further Senate consent whether the treaty
    should become a treaty with a successor to the extinct State with which
    the treaty had been made.\4\
    ---------------------------------------------------------------------------
        \4\ Dellinger does not espouse, and this Memorandum therefore does
    not address, the thesis stated in Bruce Ackerman and David Golove, Is
    NAFTA Constitutional?, 108 Harv. L. Rev. 799 (1995), that in the 1940s,
    Congress and the President, without following a process for amendment
    specified in Article V, expunged from the Constitution the requirement
    of Article II that treaties require the concurrence of two-thirds of
    the Senators present. For a skeptical view of the Ackerman/Golove
    thesis, see Lawrence H. Tribe, Taking Text Seriously: Reflections on
    Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev.
    122 (1995).
    ---------------------------------------------------------------------------
        Dellinger's interpretation of the Constitution here is flawed. The
    principal errors are these:
    A. The President Does Not Have Exclusive Authority to Interpret
            Treaties
        Treaties, like statutes, are the supreme law of the land--under the
    United States Constitution, Art. VI. Cl. 2 \5\--and, as a consequence:
    ``[T]he courts have authority to construe treaties. . . .'' \6\
    Therefore, the Constitution vests in U.S. courts the authority to
    interpret treaties definitively. In exercising that authority, courts
    say they give great weight to interpretations suggested by the
    Executive Branch,\7\ but the courts are not bound by those suggestions
    and have on occasion rejected them.\8\
    ---------------------------------------------------------------------------
        \5\ U.S. Const. art. VI, cl. 2. See Foster v. Neilson, 27 U.S. (2
    Pet.) 253 (1829); United States v. Schooner Peggy, 5 U.S. (1 Cranch.)
    103 (1801); British Caledonian Airways Ltd. v. Bond, 665 F.2d 1153,
    159-62 (D.C. Cir. 1981); Kenneth C. Randall, The Treaty Power, 51 Ohio
    St. L.J. 1089, 1110-12 (1990)./
        \6\ Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221,
    229 (1986), citing Baker v. Carr, 369 U.S. 186, 217 (1969), as holding
    that ``courts have authority to construe treaties and executive
    agreements.''  Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853);
    Valentine v. United States, 299 U.S. 5, 11 (1936); Xerox Corp. v.
    United States, 41 F.3d 647, 652 (1995); Alcan Aluminum Corp. v. United
    States, 986 F. Supp. 1436, 1440 (Ct. Int'l Trade 1997), Snap-On Tools,
    Inc. v. United States, 26 Cl. Ct. 1045, 1064 (Cl. Ct. 1997); United
    States v. Busby, 1996 WL 927938 (N.M. Ct. Crim. App.) 3 (1996). For a
    discussion of the principles courts use in interpreting treaties, see
    James C. Wolf, The Jurisprudence of Treaty Interpretation, 21 U.C.
    Davis L. Rev. 1023 (1988). Wolfe provides a list of 65 Supreme Court
    decisions interpreting treaties, from 1795 to 1988. Id. at 1025 n.14.
        \7\ United States v. Stuart, 489 U.S. 353, 369 (1989); Sumitomo
    Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180-85 (1982); Kolovrat
    v. Oregon, 366 U.S. 187, 194-95 (1961); The Amiable Isabella, 19 U.S.
    (6 Wheat.) 1, 71 (1821); Air Canada v. United States Dept. of
    Transportation, 843 F.2d 1483, 1487 (D.C. Cir. 1988). See also Military
    Payment Orders and Certificates Issued to Prisoners of War--Treaty
    Interpretation Claims Before and Subsequent to Treaty, 38 Comp. Gen. 7,
    8 (B-136066, July 7, 1958) (``When there is a doubt as to the meaning
    of a treaty provision, the construction of the treaty by the political
    department of the government, while not conclusive, is given
    weight.''); Sullivan v. Kidd, 254 U.S. 433, 442 (1920) (``While the
    question of the construction of treaties is judicial in nature, . . .
    the construction placed upon the treaty . . . by the Executive
    Department . . . should be given much weight.'')./
        \8\ David J. Bederman, Revivalist Canons and Treaty Interpretation,
    41 U.C.L.A. L. Rev. 953, 962 (1994). See also Chan v. Korean Air Lines,
    Ltd., 490 U.S. 122, 133-34 (1989) (Court rejects Executive Branch
    interpretation of Article of the Warsaw Convention for the Unification
    of Certain Rules Relating to International Transportation By Air);
    Perkins v. Elg, 307 U.S. 325, 334-41 (1939) (Court rejects State
    Department interpretation of treaty between United States and Sweden
    relating to citizenship and naturalization); Haitian Centers Council,
    Inc. v. McNary, 969 F.2d 1350, 1361-65 (2nd Cir. 1992), cert. granted,
    judgment vacated as moot, Sale v. Haitian Centers Council, Inc., 509
    U.S. 918 (1993) (Court of Appeals rejects as ``untenable'' the
    Executive Branch interpretation of the 1951 Convention Relating to the
    Status of Refugees, 969 F.2d at 1362); British Caledonian Airways Ltd.
    v. Bond, 665 F.2d 1153, 1160-61 (1981) (court rejects Executive Branch
    interpretation of Convention on International Civil Aviation); Galanis
    v. Pallanck, 568 F.2d 234, 239 (2d Cir. 1977); Greci v. Birknes, 527
    F.2d 956, 960 (1st Cir. 1976); Cannon v. U.S. Dept. of Justice, United
    States Parole Commission, 973 F.2d 1190, 1192 (5th Cir. 1992); Mackin
    v. United States, 668 F.2d 122, 132-43 (2d Cir. 1981); Abu Eain v.
    Wilkes 641 F. 2d 504, 517-18 (7th Cir. 1981); Caltagirone v. Grant, 629
    F.2d 739, 742-45 (2d Cir. 1980). Judicial treaty interpretation that
    accepted as accurate the views of the Executive Branch include Kolovrat
    v. Oregon, 366 U.S. 187, 192-93 (1961); Bacardi Corp. of America v.
    Domenech, 311 U.S. 150, 157-64 (1940); Jordan v. Tashiro, 278 U.S. 123,
    127-30 (1928).
    ---------------------------------------------------------------------------
        Perhaps the most celebrated case of judicial rejection of an
    Executive Branch treaty interpretation is United States v. Libellants
    and Claimants of the Schooner Amistad,\9\ the subject of the motion
    picture ``Amistad.'' In that case, inhabitants of Africa who had been
    kidnapped by Spaniards in violation of the laws of Spain mutinied on
    the high seas and were later apprehended in Connecticut by American
    officials. The Attorney General asked the court to order that the
    detainees be delivered to persons claiming to be the detainees''
    owners. The Attorney General argued that the Treaty of 1795 between the
    United States and Spain should be construed to deny a person held in
    custody a right to assert that he is not anyone's property. The Court,
    per Justice Story, rejected the Attorney General's interpretation of
    the Treaty: ``[T]he Treaty with Spain never could have intended to take
    away the equal rights of all foreigners, who should contest their
    claims before any of our Courts, to equal justice . . ..'' \10\
    ---------------------------------------------------------------------------
        \9\ 40 U.S. (15 Pet.) 518 (1841).
        \10\ Id. at 596.
    ---------------------------------------------------------------------------
        Moreover, it is often impossible to measure the ``weight'' a court
    gives to an Executive Branch view, because, at the same time that the
    court announces that it is giving the Executive Branch view great
    weight, the court has independently satisfied itself of the correctness
    of that view. Thus, one court said it concurred in the State
    Department's view because that view was ``coupled'' with the court's
    conclusion that the view was ``based on supporting facts.'' \11\
    Another court accepted the Executive Branch's interpretation of a
    treaty after ``finding it well-founded and supported by the weight of
    legal authority.'' \12\ One commentator observed:
    ---------------------------------------------------------------------------
        \11\ Matter of the Extradition of Demjanjuk, 612 F. Supp. 544, 562-
    63 (N.D. Ohio 1985).
        \12\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert
    denied, 348 U.S. 818 (1954).

              A typical passage from a court opinion interpreting a treaty
            will begin with the acknowledgment that ``the views of the
            State Department are ordinarily entitled to great weight'', but
            then will go on to say in words or substance that ``we find
            them wholly unpersuasive in the present case. . . .'' The
            judicial adjectives to describe the State Department's various
            communications on the meaning and application of the treaty
            ranged from ``entirely conclusory'' to ``largely
            insignificant'' to ``an aberration.'' \13\
    ---------------------------------------------------------------------------
        \13\ Lori Fisler Damrosch, Application of Customary International
    Law by National Tribunals, 76 Am. Soc'y Int'l. L. Proc. 231, 252 (Apr.
    22-24, 1982).

        The most recent Supreme Court opinion interpreting a treaty, Sale
    v. Haitian Centers Council, Inc.,\14\ devoted ten pages to an analysis
    of the meaning of Article 33 of the 1951 Convention relating to the
    Status of Refugees, including an examination of the history of the
    drafting of the Convention, and a review of English-French dictionaries
    to determine how the parenthetical use of ``refouler'' contributed to
    understanding the meaning of the phrase ``expel or return
    (``refouler'').'' That exercise would have represented needless effort
    if the Court had believed that the Executive Branch's interpretation of
    Article 33 was necessarily controlling.
    ---------------------------------------------------------------------------
        \14\ 509 U.S. 155, 177-87 (1993).
    ---------------------------------------------------------------------------
        One scholar observed:

              Yet it is clear that the President's interpretive power is
            limited. He cannot make an altogether new treaty and dispense
            with the requirement of Senate advice and consent by calling
            that treaty an ``interpretation'' of an earlier one. . . . The
            President's semantic denomination of his act cannot by itself
            control the procedure constitutionally required.\15\
    ---------------------------------------------------------------------------
        \15\ Michael J. Glennon, Constitutional Diplomacy 134 (1990). From
    1977 to 1980, Professor Glennon was Legal Counsel to the United States
    Senate Foreign Relations Committee.

        The Judiciary's power to interpret treaties includes the power to
    determine whether a treaty continues to exist. One court observed that
    in exercising the power to decide whether a treaty exists, the court
    gives weight to the Executive Branch's view when the court is satisfied
    that that view ``is based on supporting facts.'' \16\
    ---------------------------------------------------------------------------
        \16\ Ivancevic v. Artukovic, 211 F.2d 565, 573 (9th Cir.), cert.
    denied, 348 U.S. 818 (1954). In articulating the rule that courts
    should give great weight to the Executive Branch view, courts place
    varying degrees of emphasis on the weight they say they are giving to
    the view of the Executive Branch. See, e.g., Terlinden v. Ames, 184
    U.S. 270, 285 (1902), which, after reviewing the history of the
    creation of the German Empire in the Nineteenth Century, found that in
    the creation of the Empire, the Kingdom of Prussia had not lost its
    identity, and therefore that the Treaty of extradition between the
    United States and the Kingdom of Prussia remained in effect unless it
    had later been terminated by one of the parties. On the issue of
    whether the Treaty had been terminated, the court found no evidence of
    ``governmental action'' to terminate. The Court's inquiry into the
    German Empire's constitution and the international law of treaties and
    state succession in order to determine whether the treaty with Prussia
    survived the formulation of the German Empire has been characterized as
    ``an ordinary adjudication in which the Court plays its usual role,
    albeit with some deference to the evidence adduced by government
    experts.'' Thomas M. Franck, Political Questions/Judicial Answers: Does
    the Rule of Law Apply to Foreign Affairs? 23-25 (1992). Also, see Then
    v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996), which examined the
    history of extradition treaties between the United States and the
    United Kingdom to satisfy itself that none of the changes that occurred
    when the British colony of Singapore emerged as an independent State
    nullified, as to territory within Singapore, the 1931 U.S.-U.K.
    extradition treaty. In reaching that conclusion, the court said it had
    given great weight to the views of the Executive Branch as to the
    historical facts, because ``federal courts are not as well equipped as
    the Executive Branch to determine when the emergence of a new country
    brings changes that terminate old treaty obligations.'' Similarly, in
    Arnbjornsdottir-Mendler v. United States, 721 F.2d 679 (9th Cir. 1983),
    after giving ``deference'' to the Executive Branch on extradition
    matters, and after having made ``an independent review'' of Iceland's
    ``historical continuity,'' the court concluded that an extradition
    treaty existed between the United States and Iceland. One Court of
    Appeals decision, Saroop v. Garcia, 109 F. 3d 165 (3d Cir. 1997),
    contains language to the effect that whether a treaty exists between
    the United States and another State is a ``political question'' that no
    American court has capacity to decide. That language was not necessary
    to resolve the case, because the court held that in any event on the
    question before it, the court would, as a matter of ``comity,'' defer
    to a decision of the highest court of Trinidad and Tobago. In any
    event, the discussion of the political question doctrine at notes 17-
    20, infra, shows that the Executive Branch is expected to stay within
    its zone of Constitutional authority, even when a case challenging its
    encroachment cannot be presented to a court in a justiciable form.
    ---------------------------------------------------------------------------
        The preceding description of judicial paramountcy in treaty
    interpretation is not intended to imply that every separation-of-power
    dispute can be resolved by a court. Some cannot be so resolved, because
    they are ``political'' questions, and therefore non-justiciable. For
    example, whether a particular state measure fulfills the Constitution's
    guaranty of a ``republican form of government'' is a non-justiciable
    political question.\17\ But the fact that a particular action of the
    Executive Branch cannot be tested in court does not give that Branch
    carte blanche to encroach on another Branch. The Supreme Court made the
    point in 1992 in United States Dept. of Commerce v. Montana: \18\
    ---------------------------------------------------------------------------
        \17\ Colegrove v. Green, 328 U.S. 549 (1946). See also Baker v.
    Carr, 369 U.S. 186, 209 (1962).
        \18\ 503 U.S. 442, 457-58 (1992).

              In invoking the political question doctrine, a court
            acknowledges the possibility that a constitutional provision
            may not be judicially enforceable. Such a decision is of course
            very different from determining that specific congressional
    ---------------------------------------------------------------------------
            action does not violate the Constitution. (emphasis added)

        As A.A.G. Dellinger stated in a May 1996 opinion, the Executive
    Branch has an ``independent constitutional obligation to interpret and
    apply the Constitution.'' \19\ Dellinger also stated that the Congress
    as well as the President has a duty to resist unconstitutional
    encroachment by the other Branch. Dellinger invoked a 1933 opinion of
    Attorney General Mitchell:
    ---------------------------------------------------------------------------
        \19\ Walter Dellinger, Assistant Attorney General, Memorandum for
    the General Counsels of the Federal Government, The Constitutional
    Separation of Powers Between the President and Congress (May 7, 1996),
    1996 WL 876050.

              Since the organization of the Government, Presidents have
            felt bound to insist upon the maintenance of the Executive
            functions unimpa[i]red by legislative encroachment, just as the
            legislative branch has felt bound to resist interferences with
            its power by the Executive.\20\
    ---------------------------------------------------------------------------
        \20\ Opinion of Attorney General William Mitchell,
    Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op.
    Att'y Gen. 56, 64 (Jan. 24, 1933).

        In short, absence of an opportunity for judicial review for a
    particular treaty interpretation would not give the President authority
    to encroach on the Senate's power of advice and consent, or to arrogate
    to himself the Congress'' power to nullify a treaty by means of a
    statute that came into law without the President's signature, i.e., by
    an override of a Presidential veto.
        The rule that the Judiciary has the last word on treaty
    interpretation was not impaired by the announcement in the Curtiss-
    Wright Export case in 1936 that the President is the ``sole organ'' of
    the federal government in the field of international relations.\21\
    After Curtiss-Wright, as well as before, the Judiciary, not the
    President, interpreted treaties definitively. That is not surprising,
    given the narrowness of the issue resolved in Curtiss-Wright, i.e.,
    whether the Congress, by Joint Resolution, could validly authorize the
    President to issue regulations prohibiting a violation of a Joint
    Resolution, when the President issued the proclamation the same day as
    the Joint Resolution was adopted by both Houses.
    ---------------------------------------------------------------------------
        \21\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304
    (1936). For critical analyses of the ``sole organ'' dictum, see David
    Gray Adler & Larry N. George, The Constitution and the Conduct of
    American Foreign Policy 37-38 (1996); Raul Berger, Executive Privilege:
    A Constitutional Myth, 133-35; Arthur Bestor, Respective Roles of
    Senate and President in the Making and Abrogation of Treaties--The
    Original Intent of the Framers of the Constitution Historically
    Examined, 55 Wash. L. Rev. 1, 73-106 (1979); Randall, supra note 5, at
    1106-11.
    ---------------------------------------------------------------------------
        In the sixty-two years that followed the decision in Curtiss-
    Wright, the Supreme Court has not invoked the ``sole organ'' doctrine
    to deprive the judiciary of ultimate authority to interpret treaties.
    Indeed, soon after Curtiss-Wright, the Court decided Guaranty Trust Co.
    v. United States.\22\ The Court construed an executive agreement
    between the United States and the Soviet Union (an agreement as to
    which Senate advice and consent had not been obtained). In United
    States v. Pink \23\ the Court referred to Guaranty Trust as supporting
    the proposition that ``[e]ven Treaties with foreign nations will be
    carefully construed so as not to derogate from the authority and
    jurisdiction of the States.'' To the same purpose, the Court cited
    Todok v. Union Bank of Harvard, Nebraska,\24\ construing a treaty
    between the United States and Norway on testamentary disposition, where
    ``[t]he only question before us is the construction of the treaty.''
    \25\
    ---------------------------------------------------------------------------
        \22\ 304 U.S. 126 (1938).
        \23\ 315 U.S. 203 (1942).
        \24\ 281 U.S. 449 (1930).
        \25\ Id. at 452.
    ---------------------------------------------------------------------------
        In short, whatever the sole organ doctrine may mean in other
    contexts, it does not mean that the Executive Branch has exclusive
    authority to interpret treaties. Indeed, it does not override the
    judicial paramountcy in the interpretation of treaties.
        Moreover, in light of the rule that a treaty, like a statute, is
    the supreme law of the land,\26\ if the President had the final power
    to interpret a treaty, he would have the de facto power to nullify or
    ``dispense with'' or ``suspend'' a treaty--that is, he would have a
    power to suspend or dispense with a law. But the President has no power
    to ``dispense with'' or to ``suspend'' a law--a principle announced in
    United States v. Smith in 1806, which held that President James Madison
    was bound by an Act of Congress that prohibited citizens from carrying
    on war against a nation with which the United States was at peace.\27\
    As the Court explained, ``because the President does not possess a
    dispensing power,'' he cannot authorize anyone to disregard a
    statute.\28\
    ---------------------------------------------------------------------------
        \26\ Reid v. Covert, 354 U.S. 1, 33 n.34 (1957); Whitney v.
    Robertson, 124 U.S. 190, 194 (1888); Head Money Cases (Edy v.
    Robertson), 112 U.S. 580, 599 (1884); Committee of the United States
    Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 936 (D.C. Cir.
    1988). As a consequence of the rule that a treaty, like a statute, is
    the supreme law of the land, if a statute and a treaty conflict, ``the
    one last in date will control the other.'' Whitney v. Robertson, 124
    U.S. 190, 194 (1888) (plurality opinion), quoted in Breard v. Gilmore,
    523 U.S. 371 (1998). To like effect is Reid v. Covert, 354 U.S. 1, 18
    (1957).
        \27\ The question of Presidential authority to terminate a treaty
    unilaterally was the subject of Goldwater v. Carter, 617 F.2d 717 (D.C.
    Cir.), vacated on other grounds, 444 U.S. 996 (1979), discussed infra.
        \28\ United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806). To
    like effect is Kendall v. United States ex rel Stokes, 37 U.S. (12
    Pet.) 524, 613 (1838) (The Supreme Court, in declaring invalid the
    refusal of President Andrew Jackson's Postmaster-General to execute a
    statute requiring payments to postmasters, stated that, allowing the
    Postmaster-General, on the President's authority, to refuse to execute
    a statute, ``would be vesting in the President a dispensing power,
    which has no countenance for its support in any part of the
    constitution; and is asserting a principle, which, if carried out in
    its results, to all cases falling within it, would be clothing the
    President with a power entirely to control the legislation of congress,
    and paralyze the administration of justice.'')
    ---------------------------------------------------------------------------
        In 1972, in United States v. Monongahela Connecting Railroad
    Co.,\29\ District Judge Dumbauld stated: ``Of course there is no
    ``dispensing power'' in an executive or administrative agency unless
    Congress has specifically granted it.'' Judge Dumbauld cited his own
    work, Edward Dumbauld, The Constitution of the United States 7, 12
    (1964), which describes the struggle between James II and the
    Parliament that led to James II's abdication and exile, and the
    acceptance by William and Mary in 1689 of the Bill of Rights, the first
    article of which recites, ``That the pretended power of suspending
    laws, of the execution of laws, by regal authority, without consent of
    parliament is illegal.'' Id. at 12. That event is said to have
    established that the King had no dispensing or suspending power, and
    therefore made it unnecessary for the Framers of the Constitution to
    make express that they were not allocating to the office of the
    President a power to dispense with law. ``[N]ot even the most ardent
    Antifederalists feared that the Constitution of 1787 had given the
    President a power to suspend the laws.'' \30\
    ---------------------------------------------------------------------------
        \29\ 351 F. Supp. 696, 698 (W.D. Pa. 1972).
        \30\ Christopher N. May, Presidential Defiance of
    ``Unconstitutional Laws': Reviving the Royal Prerogative, 21 Hastings
    Const. L.Q. 865, 885-88 (1994). See also National Treasury Employees
    Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974), quoting Kendall v.
    United States on the lack of dispensing power, in explanation of why
    the Court had jurisdiction to declare that the President had not obeyed
    the Federal Pay Comparability Act. Similarly, in 1975, in Michigan Head
    Start Directors Ass'n v. Butz, 397 F. Supp. 1124 (W.D. Mich. 1975), the
    court based its decision ordering the Secretary of Agriculture to
    comply with the National School Lunch Act on the absence of a
    Presidential power to suspend legislation, ``a power not enjoyed by the
    English Monarch since the Glorious Revolution of 1688.'' Also, in
    Ameron, Inc. v. United States Army Corps of Engineers, 610 F. Supp. 750
    (D.N.J. 1985), aff'd as modified, 787 F.2d 875 (3d Cir. 1986), aff'd on
    reh'g, 809 F.2d 979 (3d Cir. 1986), the District Court describes James
    II's forced exile, and the acceptance of England's Bill of Rights by
    William and Mary as the foundation for ``[t]he rule that no executive
    official can decide for himself what laws he is bound to obey, but must
    await the decisions of the Judiciary and until then must obey the laws,
    [a rule that] has deep roots in our constitutional history.'' Also, the
    duty to execute the law faithfully is viewed as a sign of the non-
    existence of Presidential suspending power. Statement on Behalf of the
    Office of General Counsel to the Clerk of House of Representatives
    Regarding The Executive Branch's Declaration That The Competition in
    Contracting Act Is Unconstitutional, Hearings Before a Subcommittee of
    the Committee on Government Operations, House of Representatives, on
    Constitutionality of GAO's Bid Protest Function, 99th Cong., 1st Sess.
    (Feb. 28; March 7, 1985) ('Scholars have concluded that the ``faithful
    execution'' clause of our Constitution is a mirror of the English Bill
    of Rights'' ``abolition of the suspending power,'' that is, the
    abolition of what the English Bill of Rights has called ``the pretended
    [Royal] power of Suspending . . . the Execution of Laws.'') The same
    point is made in a Statement of Senator William S. Cohen and Senator
    Carl Levin in Hearings on the Constitutionality of GAO's Bid Protest
    Function Before a Subcommittee of the committee on Government
    Operations, House of Representatives, 99th Cong., 1st Sess. 486, 490
    (Feb. 28, March 7, 1985) (``Absent a court ruling, we strongly believe
    that a unilateral decision by the Executive Branch to refuse to enforce
    a statute constitutes a usurpation of the proper role of the judiciary
    and a failure of the President to meet his constitutional
    responsibility to take Care that the Laws be faithfully executed.'').
    ---------------------------------------------------------------------------
        The most recent decision on the question of whether the President
    has dispensing power is Spence v. Clinton, a District Court decision in
    1996. It explains why the President had no authority to ``defy'' the
    Ballistic Missile Act of 1995. The court stated:

              Such an outcome would [give] the President the ability to
            nullify duly authorized congressional actions. The Founding
            Fathers strongly believed that such a power would be dangerous
            and unwarranted. Constitutional scholars speak with one voice
            in concurring with this assessment.\31\
    ---------------------------------------------------------------------------
        \31\ Spence v. Clinton, 942 F. Supp. 32, 38 (D.D.C. 1996)
    (footnotes omitted).

    ---------------------------------------------------------------------------
        In support of that observation, the court quoted James Madison:

              To give such a prerogative would certainly be obnoxious to
            the temper of this country.\32\
    ---------------------------------------------------------------------------
        \32\ I.M. Farrand, The Records of the Federal Constitution of 1787
    100 (1966).

        Nothing in Goldwater v. Carter,\33\ is to the contrary. That case
    involves undoing a treaty with one regime claiming to govern China and
    recognizing a different regime claiming to be the government of China.
    Neither regime nor the United States claimed that China had ceased to
    exist. The case arose out of these events: In 1954 the United States
    entered into a Mutual Defense Treaty that on its face was a treaty
    between the United States and China. The Treaty was signed by a person
    who was part of a government situated on Taiwan calling itself the
    Republic of China, (the ``ROC'') and claiming authority over the entire
    territory of China, including the Chinese Mainland. At that time, and
    ever since, a government situated on the Mainland, and calling itself
    the ``People's Republic of China'' (``PRC'') claimed authority over the
    entire territory of China, including Taiwan. In 1978, President Jimmy
    Carter announced that the United States would terminate the Mutual
    Defense Treaty that had been made with the Taiwan-based government.
    ---------------------------------------------------------------------------
        \33\ Goldwater v. Carter, 444 U.S. 996 (1979).
    ---------------------------------------------------------------------------
        Senator Barry Goldwater brought suit in a District Court, asking
    the Court to declare that without the consent of the Senate, President
    Carter lacked authority to terminate the Treaty. Senator Goldwater
    asserted that termination without Senate deliberation would deprive him
    of an opportunity to vote on the question of whether the Treaty should
    be terminated. A majority of Justices of the Supreme Court concluded
    that Senator Goldwater's case should be sent to the District Court to
    be dismissed, but no majority could agree on the reasons for that
    result. Four Justices (Rehnquist, Burger, Stewart and Stevens) said
    that to decide whether the Senate had authority to participate in a
    treaty-termination decision would be to decide a non-justiciable
    ``political question,'' i.e, not the kind of controversy that the
    Constitution vested authority in the Judiciary to decide. Justice
    Marshall gave no reason for his decision in favor of dismissal. Justice
    Powell said that he considered the question to be justiciable, but
    supported dismissal on the ground that it was not ripe for decision,
    because the Congress had not yet challenged the President's authority
    by ``appropriate formal action.'' 444 U.S. at 536. Two of the Justices
    who voted to hear the case (Blackmun and White) said the case was ripe,
    and therefore should be heard on the merits. Justice Brennan expressed
    the view that the case was justiciable, and that the lower court had
    correctly decided the case to the extent that it rested on the
    principle that the President had exclusive authority ``to recognize,
    and withdraw recognition from, foreign governments.''
        Given the absence of a majority explanation of the reason for the
    result, Goldwater v. Carter has little value for predictive
    jurisprudence with respect to treaties with a State that has not lost
    its existence but only changed its government, let alone with respect
    to treaties of a State that has ceased to exist.
        In any event, even the Judiciary's power to interpret treaties
    definitively must be exercised so as to avoid making a significant
    amendment, because that too would trench upon the Senate's power to
    give advice and consent to the making of the treaty. One court
    explained:

              A significant amendment to a treaty must follow the mandate
            of the Treaty Clause and therefore must be proposed by the
            President and be ratified following the advice and consent of
            the Senate.\34\
    ---------------------------------------------------------------------------
        \34\ New York Chinese TV Programs, Inc. v. U.E. Enters., Inc., 954
    F.2d 847, 853 (2d Cir. 1991), cert. denied, 506 U.S. 827 (1992).

    ---------------------------------------------------------------------------
        Similarly,

              Courts are not authorized to annul or disregard provisions of
            a treaty
            . . . since an annulment or disregard would constitute a
            modification of the treaty, and treaty modifications are solely
            within the province of the Senate.\35\
    ---------------------------------------------------------------------------
        \35\ In re Air Crash Disaster at Warsaw Poland on March 14, 1980,
    535 F. Supp. 833, 843 (E.D.N.Y. 1982), aff'd, 705 F. 2d. 85 (2d. Cir.),
    cert. denied, 464 U.S. 845 (1983). See also Testimony of Columbia Law
    School Professor Louis Henkin, in Joint Hearings before the Committee
    on Foreign Relations and the Committee on the Judiciary, United States,
    Senate, 100th Cong. 1st Sess., on the ABM Treaty and the Constitution
    881 (March 11, 1987).
    ---------------------------------------------------------------------------
    B. The President Does Not Have Exclusive Authority to Implement
            Treaties
        While Dellinger argues that the President has exclusive authority
    to implement treaties, the Constitution vests in the Congress the
    authority to make all laws ``necessary and proper'' to implement, i.e.,
    to ``carry into execution,'' not only all the law-making powers
    enumerated in Article I, section 8, but also ``all other powers vested
    by this Constitution in the Government of the United States or in any
    Department or Officer thereof.'' \36\ The recognized powers of Congress
    to implement (or fail to implement) a treaty ``by an apportionment or
    other law essential to its effectuation, . . . are legislative powers,
    not treaty-making or treaty-termination powers.'' \37\
    ---------------------------------------------------------------------------
        \36\ Neely v. Henkel, 180 U.S. 109, 121 (1901) (The necessary and
    proper clause of U.S. Constitution Article 1, section 8 ``includes the
    power to enact such legislation as is appropriate to give efficacy to
    any stipulations which it is competent for the President by and with
    the advice and consent of the Senate to insert in a treaty with a
    foreign power.'') To like effect are Missouri v. Holland, 252 U.S. 416,
    432-33 (1920); United States v. Lue, 134 F.3d 79, 82 (2d Cir. 1998);
    Goldwater v. Carter, 617 F.2d 697, 717 (D.C. Cir.), vacated on other
    grounds, 444 U.S. 996 (1979).
        \37\ Peter M. Shane & Harold H. Bruff, Separation of Powers Law:
    Cases and Materials 621 (1996).
    ---------------------------------------------------------------------------
        Hence, the Congress has the authority to make laws implementing
    treaties. It follows that the President can no more create a treaty by
    calling its creation an implementation than he can create a statute by
    calling its creation an implementation of another statute.
    C. Presidential Authority to Grant Formal Recognition to Foreign States
            Does Not Imply Authority to Make Treaties with Those States
            Without Senate Concurrence
        As a matter of international law, when a U.S. President grants
    recognition to a foreign State, the President imposes no duty or
    obligation on the United States that the United States would not in any
    event be obliged to discharge. In contrast, when a U.S. President
    brings a treaty into force, its terms must be fulfilled (unless there
    is a valid ground under international law, such as coercion or fraud,
    for not fulfilling them.).\38\
    ---------------------------------------------------------------------------
        \38\  Factor v. Laubenheimer, 290 U.S. 276, 298 (1933) (``Until a
    treaty has been denounced, it is the duty of both the government and
    the courts to sanction the performance of the obligations reciprocal to
    the rights which the treaty declares and the government asserts even
    though the other party to it holds a different view of its meaning.'');
    United States v. Kirby, 106 F.3d 855, 859 (9th Cir. 1997); United
    States v. A.L. Burbank & Co., Ltd., 575 F.2d 9, 22 (2d Cir. 1975).
    J.H.H. Weiler & Ulrich R. Haltern, The Autonomy of the Community of
    Legal Order--Through the Looking Glass, 37 Harv. Int'l L.J. 411, 441
    (1996).
    ---------------------------------------------------------------------------
        The Constitution, Art. II. sec. 3, requires the President to
    ``receive Ambassadors and other public Ministers,'' a provision that
    implies authority to determine whether a particular person is a bona
    fide representative of a particular foreign State. In turn, that
    implies that the President has authority to determine whether or not
    such a foreign State exists. An entity exists as a State if it meets
    the test of Statehood, i.e., has a defined territory and a permanent
    population, controls its own governance, and has the capacity to
    conduct formal relations with States.\39\ International law requires
    that each other State treat that entity as a State, irrespective of
    whether such other State has ``formally'' recognized that entity as a
    State.\40\
    ---------------------------------------------------------------------------
        \39\  Restatement (Third) of the Foreign Relations Law of the
    United States Sec.  201 (1986). The law pertaining to the recognition
    of a State's existence is distinct from international law pertinent to
    the recognition of the government of a State. Under international law,
    a change in the government of a recognized State, without more, does
    not impair the State's existence as a State. Edwin L. Fountain, Out
    from the Precarious Orbit of Politics: Reconsidering Recognition and
    the Standing of Foreign Governments to Sue in American Courts, 29 Va.
    J. Int'l L. 473, 474-76 (1989); D.P. O'Connell, I International Law
    127-28 (2d ed. 1970); Restatement (Third) of The Foreign Relations Law
    of the United States Sec.  202, 203 (1986).
        \40\ Id. at Sec.  202, cmt. c.

              Recognition, as a public act of state, is an optional and
            political act and there is no legal duty in this regard.
            However, in a deeper sense, if an entity bears the marks of
            statehood other states put themselves at risk legally if they
            ignore the basic obligations of state relations. . . . In this
            context of state conduct, there is a legal duty to accept and
            apply certain fundamental rules of international law: there is
            a legal duty to ``recognize'' for certain purposes at least,
            but no duty to make an express, public, and political
            determination of the question or to declare readiness to enter
            into diplomatic relations by means of recognition. This latter
            type of recognition remains political and discretionary.\41\
    ---------------------------------------------------------------------------
        \41\  Ian Brownlie, Principles of Public International Law 94-95
    (2d ed. 1973) (emphasis added) (footnote omitted). ``Recognition of
    State is the affirmation, usually by the government of another state,
    that a new nation has come into existence which, at least as far as the
    recognizer is concerned, is subject to all the rights and duties of a
    state in international law.'' Thomas M. Franck & Michael J. Glennon,
    Foreign Relations and National Security Law: Cases, Materials and
    Simulations 1021 (1993).

        Were the President to use the recognition function to make a treaty
    that would not otherwise exist, he would put the United States under a
    legal obligation to other States without Senate advice and consent. In
    short, there is no merit to Dellinger's suggestion that the exclusive
    power to recognize States allows the President to make treaties without
    Senate advice and consent. The President's recognition authority cannot
    be exercised in a manner that would nullify the U.S. Senate's authority
    to advise and consent on the making of a treaty.
        Hence, if a foreign State ceases to exist under international law
    and, consequently, a bilateral treaty between the extinct State and the
    United States lapses, the President cannot use the ``receive
    Ambassadors'' clause to bring a new treaty into force between the
    United States and a successor to the extinct State without Senate
    advice and consent. In other words, the President cannot, without
    Senate approval, bring a lapsed treaty back to life by declaring that a
    given foreign State is the successor or continuation of an extinct
    State. Principles of international law govern the issue of the
    extinction of States. However broad the President's authority may be to
    recognize States and governments of States under the ``receive
    Ambassadors'' clause, it is necessarily limited by the specific
    Constitutional requirement for Senate advice and consent on the making
    of treaties.
    D. The Senate's Concurrence in the Making of a Treaty With One State
            Does Not Constitute Consent to the Making of a Treaty With a
            Successor-State
        When the Senate consents to a treaty with a given foreign State,
    does it impliedly authorize future Presidents to make a treaty on the
    same subject with a new State that is a successor to that given foreign
    State? An affirmative answer would violate the rule against the
    President's creating law unilaterally. A treaty cannot be interpreted
    ``[t]o alter, amend, or add to the Treaty, by asserting any clause,
    whether small or great, important or trivial . . .'' \42\ In 1989, in
    Chan v. Korean Air Lines, Ltd.,\43\ the Supreme Court invoked its 1821
    decision in The Amiable Isabella \44\ to explain that an interpretation
    that makes a change in a treaty ``whether small or great, important or
    trivial'' would constitute a ``usurpation of power, and not an exercise
    of judicial functions,'' adding: ``It would be to make, and not to
    construe, a treaty.'' Though the caution in that case was aimed at
    judges, it applies equally to interpretations by the Executive Branch
    because it states that any change would be ``to make, not construe, a
    treaty,'' a clear reference to the treaty-making process, of which
    Senate advice and consent is an essential part. In light of that rule,
    there is no room for an inference that Senate advice and consent
    implicitly authorizes later changes by a President.
    ---------------------------------------------------------------------------
        \42\ The Amiable Isabella, 19 U.S. 1 (6 Wheat.) 1, 71 (1821); Chan
    v. Korean Air Lines, Ltd., 490 U.S. 122, 135-36 (1984); Kass v. Reno,
    83 F.3d 1186, 1189 (10th Cir. 1996). See also The Society for the
    Propagation of the Gospel in Foreign Parts v. New-Haven, 21 U.S. (8
    Wheat.) 464, 490 (1823).
        \43\ 490 U.S. 122, 134-135 (1989).
        \44\ 19 U.S. (6 Wheat.) 1, 71 (1821).
    ---------------------------------------------------------------------------
        In that regard, Dellinger appears to argue otherwise, conjecturing
    that in 1972 the Senate must have known of what Dellinger argues was
    past U.S. diplomatic practice with regard to State succession, i.e.,
    when a State dissolves, its treaties with the United States bind the
    United States vis-a-vis the extinct State's successor or successors.
    Dellinger's assertion disregards the U.S. policy and practice of
    regarding as lapsed an extinct State's bilateral treaties, a practice
    that began at least as early as the annexation of the Kingdom of Hawaii
    in 1898,\45\ and was recently manifested in dealing with all five
    States that succeeded the extinct Yugoslavia.\46\ Thus, if any
    conjecture about the Senate's 1972 understanding is warranted, the
    reasonable conjecture is that it knew of the practice of regarding
    extinct States'' treaties as lapsed. In any event, Dellinger does not
    claim that, after the USSR's dissolution, the Senate consented to the
    making of an ABM Treaty with the Russian Federation. Presumably,
    Dellinger understands that ``Ordinarily, Congress'' silence is just
    that--silence,'' \47\ and does not constitute the exercise of its power
    to make or to repeal laws,\48\ including treaties.\49\
    ---------------------------------------------------------------------------
        \45\ See Statement of Secretary Sherman to Japanese Minister,
    described supra Part IV.D..
        \46\ See discussion at IV.F.4, infra.
        \47\ Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).
        \48\ Patterson v. McLean Credit Union, 491 U.S. 164, 175 (1989);
    United States v. Wells, 519 U.S. 482, 495 (1997); NLRB v. Plasterers''
    Local Union No. 79, 404 U.S. 116, 129-30 (1971).
        \49\ TransWorld Airlines, Inc. v. Franklin Mint Corp., 466 U.S.
    243, 252 (1984).
    ---------------------------------------------------------------------------
        Finally, there is no evidence that after the USSR's dissolution,
    the Senate, by voting on various ABM Treaty matters, consented to
    bringing an ABM Treaty into force between the United States and the
    Russian Federation. None of the laws passed since the USSR's extinction
    that relate to the ABM Treaty contains words that can be fairly
    construed as giving consent to the bringing into force of an ABM Treaty
    that is not already in force. In construing a statute, its words are to
    be given their plain meanings.\50\ Moreover, legislative history, an
    aid to the construction of ambiguous words,\51\ contains no evidence
    that either House of Congress, in voting on bills relating to ABM
    Treaty matters, was voting to bring into force an ABM Treaty that was
    not otherwise in force.
    ---------------------------------------------------------------------------
        \50\ United States v. Gonzales, 520 U.S. 1 (1997).
        \51\ Barnhill v. Johnson, 503 U.S. 393, 401 (1992).
    ---------------------------------------------------------------------------
        Hence, if an ABM treaty now exists between the United States and
    the Russian Federation, it exists only if, under international law, the
    Treaty did not lapse upon the USSR's extinction.
        None of the Dellinger Paper's arguments is supported by
    international law. International law points to an opposite conclusion:
    Upon the USSR's extinction, the ABM Treaty did not become a treaty
    between the United States and the Russian Federation.
        This Memorandum does not contend that the United States and the
    Russian Federation cannot make a treaty between themselves or with
    other States to limit ABM systems. But such a treaty would require the
    concurrence of ``two thirds of the Senators present,'' as provided by
    Article II, section 2 of the U.S. Constitution.
                            iii. factual background
        As a predicate to the legal analysis below, it is useful to review
    facts pertaining to the USSR's extinction and the U.S. State
    Department's position thereon, President Clinton's position on the ABM
    Treaty of 1972, and the purpose of the ABM Treaty of 1972 as seen by
    the U.S. government at the time of Senate approval of ratification.\52\
    ---------------------------------------------------------------------------
        \52\ Treaty Between the United States of America and the Union of
    Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
    Systems (the ``ABM Treaty''), May 26, 1972, U.S.-U.S.S.R. (App. 2). The
    Treaty was amended in 1974 to reduce the allowed number of ABM
    deployment areas of each party from two to one. The United States chose
    its ICBM emplacements near Grand Forks, North Dakota. The USSR chose
    Moscow. Each party was given a single option to shift its defense area
    upon advance notice at the time of scheduled 5-year Treaty review.
    Protocol to the Treaty Between the United States of America and the
    Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
    Missile Systems (App. 2) (including 1974 Protocol).
    ---------------------------------------------------------------------------
    A. Extinction of the USSR
        On December 8, 1991, at Minsk, the Republic of Belarus, the Russian
    Federation ('RSFSR'') and Ukraine, as the USSR's founders and as
    signatories to the Union Treaty of 1922 that created the USSR, declared
    that the USSR, ``as a subject of international law and a geopolitical
    reality no longer exists.'' \53\ Also, they signed the Agreement
    Establishing the Commonwealth of Independent States. The Agreement
    invited other States to join. On December 21, 1991, at Alma Ata, eight
    other States joined.\54\ The Agreement included a provision supporting
    the Russian Federation's assumption of the USSR's permanent seat in the
    U.N. Security Council.
    ---------------------------------------------------------------------------
        \53\ Agreement Establishing the Commonwealth of Independent States,
    Dec. 8, 1991, Belarus-RSFSR-Ukraine, 31 I.L.M. 143 (App. 3).
        \54\ Agreement Establishing the Commonwealth of Independent States,
    Art. 12, Dec. 21, 1991, 31 I.L.M. 147-54 (App. 4).
    ---------------------------------------------------------------------------
        President George Bush, in his December 25, 1991 address to the
    nation on the CIS, said that ``The Soviet Union itself is no more.''
    \55\ On January 22, 1992 President Bush, in addressing the
    International Conference on Humanitarian Assistance to the former USSR,
    referred to ``the dramatic revolution that swept away Soviet communism
    and left in its place 12 new nations. . . .'' \56\ President Bush also
    referred to the ``dissolution of the Soviet Union . . .''. \57\ On
    April 1, 1992, President Bush referred to ``Russia, Ukraine and the
    other new States that have replaced the Soviet Union.'' \58\ President
    Bush stated that he was ``seeking to conclude trade, bilateral
    investment and tax treaties with each of the new Commonwealth States.''
    \59\
    ---------------------------------------------------------------------------
        \55\ President George Bush, Address to the Nation on the
    Commonwealth of Independent States, 27 Weekly Comp. Pres. Doc. 1883
    (Dec. 25, 1991) (App. 5).
        \56\ President George Bush, Address to the International Conference
    on Humanitarian Affairs (Jan. 22, 1992), in I Public Papers of the
    President of the United States, George Bush 127 (GPO 1993) [hereinafter
    Public Papers] (App. 6).
        \57\ Id.
        \58\ President George Bush, Statement at News Conference on Aid to
    the States of the Former Soviet Union, in Public Papers, supra note 36,
    at 522 (App. 6).
        \59\ President George Bush, Remarks to the American Society of
    Newspaper Editors, in Public Papers, supra note 36, at 566 (App. 6).
    ---------------------------------------------------------------------------
    B. State Department Study of the Effect of the USSR's Extinction
        In early 1992, State Department Legal Adviser Edwin D. Williamson
    announced that the State Department was conducting a study of the
    effect of the USSR's extinction on its treaties with the United States,
    including the ABM Treaty.\60\ In 1997, President Clinton described the
    process as follows:
    ---------------------------------------------------------------------------
        \60\ Edwin D. Williamson, Remarks on State Succession and Relations
    with Federal States, 86 Am. Soc. of Int'l L. Ann. Meeting Procs. 10, 12
    (Apr. 1-4, 1992).

              When the USSR dissolved at the end of 1991, it became
            necessary to reach agreement as to which former Soviet States
            would collectively assume its rights and obligations under the
            [ABM] Treaty (which clearly continued in force by its own
            terms). The United States took the view that, as a general
            principle, agreements between the United States and the USSR
            that were in force at the time of the dissolution of the Soviet
            Union would be presumed to continue in force as to the former
            Republics. It became clear, however, particularly in the area
            of arms control, that a case-by-case review of each agreement
            was necessary.\61\
    ---------------------------------------------------------------------------
        \61\ Letter from President William J. Clinton to Benjamin A.
    Gilman, Chairman, Committee on International Relations, House of
    Representatives (Nov. 21, 1997) (App. 7).

        During that study, according to the State Department's official
    annual list of U.S. Treaties in Force, ``The United States is reviewing
    the continued applicability of [listed] agreements [including the ABM
    Treaty] . . .''. \62\
    ---------------------------------------------------------------------------
        \62\ United States Department of State, Treaties in Force, A List
    of Treaties and Other International Agreements of the United States in
    Force on January 1, 1997 282 (1997) (App. 8). Compare with United
    States Department of State, Treaties in Force, A List of Treaties and
    Other International Agreements of the United States in Force on January
    1, 1992 247, 248 (1992) (App. 9).
    ---------------------------------------------------------------------------
        The State Department's practice of studying the status of treaties
    between the United States and extinct States was described in 1965 by
    Assistant Legal Adviser Charles I. Bevans: The practice is to negotiate
    with a new State ``as soon as possible.'' If a new State has a
    ``devolution'' agreement with or otherwise announces it would be bound
    by its predecessor's treaties, the fact is ``noted'' in Treaties in
    Force, but the United States does not consider itself bound by the
    devolution agreement to accept such a treaty as being in force between
    the United States and the successor State.\63\
    ---------------------------------------------------------------------------
        \63\ Letter from Charles I. Bevans, Assistant Legal Adviser, United
    States Department of State, to Professor William W. Bishop, Jr.,
    Editor-in-Chief, The American Journal of International Law (July 27,
    1964), reprinted in Committee on State Succession to Treaties and Other
    Governmental Obligations, International Law Association, The Effect of
    Independence on Treaties 382, 385-86 (1965). See also Sari T. Korman,
    The 1978 Vienna Convention on Succession of States in Respect of
    Treaties: An Inadequate Response to the Issue of State Succession, 16
    Suffolk Transnat'l L. Rev. 174, 180 (1992).
    ---------------------------------------------------------------------------
        State Department practice regarding devolution agreements and
    proclamations is consistent with the view expressed in scholarly
    writings. For example, in 1969 a Committee of the United Nations'
    International Law Commission stated:

              Conversely, on the date of the succession, the territory
            passes into the treaty regime of the newly emerged State; and,
            since the devolution agreement is incapable by itself of
            effecting an assignment of the predecessor's treaty obligations
            to the successor State, the agreement does not of itself
            establish any treaty nexus between the successor State and
            third States parties to the treaties of the predecessor State.
            Thus, even if a newly emerged State has concluded a devolution
            agreement, the only treaty obligations of the predecessor State
            which can immediately become obligations also of the successor
            State vis-a-vis the other contracting parties are such
            obligations, if any, as would in any event pass to the
            successor State by operation of the general rules of the
            international law independently of the devolution
            agreement.\64\
    ---------------------------------------------------------------------------
        \64\ Sir Humphrey Waldock, Special Rapporteur, Second Report on
    Succession in Respect of Treaties, 1969 II Y.B. Int'l L. Comm'n 45, 57,
    UN Doc. A/CN.4/SER.A/1969/Add.1.

        State Department Legal Adviser Edwin D. Williamson stated that
    while the study of the ABM treaty was pending, the State Department
    would use a ``presumptive continuity'' model in its dealings with the
    USSR's successor States.\65\ ``Continuity,'' as applied to treaties, is
    a term used by scholars to describe the fact that a treaty between two
    particular States (the ``treaty partners'') has become a treaty between
    one of the partners and another State. For example, when a State
    dissolves and a successor State (or States) emerges on what had been
    the territory of the dissolved State, a successor State may agree with
    the dissolved State's treaty partner that the dissolved State's
    treaties should ``continue'' in effect as between the successor State
    and the dissolved State's treaty partner. In that event, the treaty in
    question is said to have come into effect with the successor State by a
    process of ``continuity.'' Thus, when Norway and the Russian Federation
    agreed that they would consider as treaties between them certain
    designated treaties that had been in effect between Norway and the
    USSR, those treaties are said to have come into effect between Norway
    and the Russian Federation by the process of continuity.\66\
    ---------------------------------------------------------------------------
        \65\ Williamson, supra note 60, at 10, 12.
        \66\ Marti Koskenniemi, The Present State of Research Carried Out
    By the English-Speaking Section of the Centre for Studies and Research,
    in State Succession: Codification Tested Against the Facts 98-118
    (Hague Academy of International Law 1996); Paul R. Williams, The Treaty
    Obligations of the Successor States of the Former Soviet Union,
    Yugoslavia, and Czeckoslovakia: Do They Continue in Force?, 23 Denv. J.
    Int'l L. & Pol'y 1, 31-35 (1994).
    ---------------------------------------------------------------------------
        Since the respective dissolutions of the USSR, of Yugoslavia (the
    ``SFRY'') and of Czechoslovakia, the United States, various European
    States, and the successor States have not all dealt in the same manner
    in all cases with the treaties of the dissolved States. A few examples:
    Armenia and Azerbaijan chose not to enter continuation agreements with
    any State as to any USSR treaty.\67\ Austria, as regards the treaties
    with the dissolved SFRY, described its practice as a ``principle of
    pragmatic application'' of the continuation process--that is, Austria
    denied that the FRY was a continuity of the SFRY, and yet, in practice,
    treated the FRY as though it were the continuity of the SFRY.\68\
    ---------------------------------------------------------------------------
        \67\ Koskenniemi, supra note 66, at 112.
        \68\ Koskenniemi, supra note 66, at 88, 110-11 n. 70; Williams,
    supra note 66, at 31-35 (1994).
    ---------------------------------------------------------------------------
        The U.S. State Department, though expressing a general desire that
    the USSR's successor States (a term that does not include Estonia,
    Latvia and Lithuania) be bound by the same treaty obligations vis-a-vis
    the United States as was the USSR, ``abandoned any assertions of
    automatic continuation of treaty obligations and relied entirely on
    assurances provided by the successor States.'' \69\ Also, in seeking
    assurances of treaty continuation from the successor States, the State
    Department accepted non-specific (what one commentator has called
    ``feigned'') assurances,\70\ and unilateral commitments that the
    successor States may rescind, and that gave the United States the
    effective right to discontinue the treaties at its option.\71\
    Similarly, the State Department, by accepting assurances of treaty
    continuity that were linked by context to non-justiciable political
    commitments--such as promises to develop market economies--rendered the
    treaties unenforceable as a practical matter and thereby made
    ``continuity'' illusory.\72\ Moreover, ``Treaties in Force,'' the
    authoritative annual State Department publication of the U.S. treaties
    that are in force, shows as ``in force'' only those treaties concluded
    between the United States and the Russian Federation after the USSR's
    dissolution.\73\ A similar treatment is provided by listings of
    treaties in force involving other successors of the USSR and other
    successors of the SFRY.\74\
    ---------------------------------------------------------------------------
        \69\ Williams, supra note 66, at 32.
        \70\ Id.
        \71\ Id.
        \72\ Id.
        \73\ Id. at 33-34.
        \74\ Id.
    ---------------------------------------------------------------------------
        Likewise, the Russian Federation has advised the United States that
    it does not deem itself bound by any USSR treaty obligation to the
    United States that conflicts with Russian law.\75\
    ---------------------------------------------------------------------------
        \75\ Id. at 35-36. See also Gennady M. Danilenko, Book Review and
    Note: The Russian Law of Treaties by William E. Butler, 92 Am.J. Int'l
    L. 356, 357 (1998).
    ---------------------------------------------------------------------------
        As regards Ukraine, in May, 1996, the Executive Branch and a
    representative of Ukraine agreed that the United States and Ukraine
    would regard as in effect as between the two States thirty-five
    designated agreements that had been in effect between the United States
    and the USSR.\76\ Of the thirty-five US/USSR agreements in question,
    thirty-two never received Senate consent, perhaps because they were
    among the kinds of binding agreements with foreign nations that the
    President ``may enter into without complying with the formalities
    required by the Treaty Clause of the Constitution . . .''. \77\ The
    three US/USSR treaties that had received Senate consent were a consular
    convention of 1968, a tax convention of 1976, and a convention of 1854
    relating to the rights of neutrals at sea.
    ---------------------------------------------------------------------------
        \76\ The 1996 US-Ukraine agreement is described at 143 Cong. Rec.
    S4462-S4463 (May 14, 1997).
        \77\ Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982). According to
    the Supreme Court, agreements that do not require Senate concurrence
    under Article II include agreements to protect U.S. nationals employed
    at U.S. military bases abroad, id., and monetary-claims settlements.
    Dames & Moore v. Regan, 453 U.S. 654, 679-80 nn.8, 9, 10 (1981); United
    States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S.
    324 (1937). Such an agreement is called an ``Executive Agreement'' or a
    ``Sole-Executive Agreement'' if it is made between the United States
    and another State without the concurrence of two-thirds of the Senate,
    and without the consent of a majority of both Houses of the Congress.
    If the Agreement has received the consent of a majority of both Houses
    of Congress, it is called a ``Congressional-Executive Agreement.'' The
    Court has explained that an agreement of that nature, though sometimes
    called a ``treaty,'' is not a treaty ``possessing the dignity of one
    requiring ratification by the Senate of the United States . . .'' B.
    Altman & Co. v. United States, 224 U.S. 583, 601 (1912). See also
    Weinberger v. Rossi, 456 U.S. 25, 29 (1982) ('The word ``treaty'' has
    more than one meaning''); Dames & Moore v. Regan, 453 U.S. 654, 679-84
    (1981); United States v. Pink, 315 U.S. 203, 225 (1942); United States
    v. Belmont, 301 U.S. 324 (1937). No case has been presented to a court,
    however, to decide whether an arms-control treaty can constitutionally
    be made by the President acting alone or with the consent only of a
    majority of both Houses.
    ---------------------------------------------------------------------------
        The wide variety of recent State practice has been summed up as
    follows: \78\
    ---------------------------------------------------------------------------
        \78\ Koskenniemi, supra note 66, at 88, 116 (footnote omitted). See
    generally Brownlie, supra note 41, at 82-85; James Crawford, the
    Creation of States in International Law 400-411 (1979); Krystyna Marek,
    Identity and Continuity in Public International Law (1968).

              [P]arties have normally negotiated and negotiations have led
            to the adoption and publication of lists of treaties that are
            to be continued or allowed to lapse. The more weight is given
            to such lists, and the agreements they embody, the less
            practical significance the ``presumption of continuity''
            enjoys--until the presumption must altogether yield to the a
            contrario argument that a treaty absent from a list must be
            deemed to have lapsed.\79\
    ---------------------------------------------------------------------------
        \79\ Koskenniemi, supra note 66, at 116.

        ``Continuity'' (or ``continuation'') is also used to identify a
    State that, notwithstanding a loss of territory, continues to exist
    because it has not lost its international legal personality.\80\ In
    that usage ``continuity'' (or ``continuation'') is the antonym of
    ``dismemberment'' or ``disembratio'' or ``dissolution'' or
    ``extinction,'' which terms are used interchangeably to identify States
    that have ceased to exist.\81\ For example, the United States stated
    that it is the position of the ``international community generally''
    that, as a result of the SFRY's ``dissolution'' in 1992, ``[t]he SFRY
    has ceased to exist and no . . . State represents the continuation of
    the SFRY. . . .'' \82\
    ---------------------------------------------------------------------------
        \80\ Republic of Croatia v. Girocredit Bank A.G. der Sparkassen,
    Supreme Court of Austria (4 Ob. 2304 96V, Dec. 17, 1996), reprinted at
    36 I.L.M. 1523 (1997); Konrad G. Buhler, Casenote: Two Recent Austrian
    Supreme Court Decisions on State Succession from an International Law
    Perspective, 2 Aus. Rev. Int'l & Eur. L., 213, 224-26 (1997).
        \81\ Id.
        \82\ Declaration of Christopher R. Hill, Director, Office of South
    Central European Affairs, United States Department of State, filed in
    Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
    (AGS) (S.D.N.Y.) para.para. 5, 6 (Sept. 21, 1995), complaint dismissed,
    913 F.Supp. 191 (S.D.N.Y. 1995). (App. 1).
    ---------------------------------------------------------------------------
        In June 1996 U.S. Assistant Attorney General Walter Dellinger
    advised Counsel to the President John Quinn that the presumption of
    ``continuity'' employed in the State Department during the Bush
    Administration remained in effect in the Clinton Administration.
    Dellinger stated that the notion of continuity was ``rooted'' in U.S.
    ``past diplomatic practice'' and in the U.S. Executive Branch's
    understanding of international law.\83\ Dellinger's disregard for U.S.
    practice as regards treaties of extinct states is described at IV.F.,
    infra.
    ---------------------------------------------------------------------------
        \83\ Memorandum from Walter Dellinger, Assistant Attorney General,
    to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
    1745 (June 26, 1996) (App. 10). See also Letter from William C.
    Danvers, Special Assistant to the President and Senior Director for
    Legislative Affairs, to Newt Gingrich, Speaker of the House of
    Representatives (Nov, 29, 1996), transmitting Report on the Livingston
    ABM Amendment (Nov. 25, 1996) (App. 12), and Letter of Dec. 11, 1996
    from Representatives Bob Livingston, Benjamin A. Gilman and Floyd
    Spence to President Clinton (Dec. 11, 1996) (App. 13).
    ---------------------------------------------------------------------------
    C. President Clinton's Statement of Position
        On June 16, 1997, Benjamin A. Gilman, Chairman, House Committee on
    International Relations, asked President Clinton: If the Senate were to
    reject the President's proposal regarding ABM Treaty succession, ``what
    countries in addition to the United States will, in the view of the
    Administration, be parties to the ABM Treaty?'' \84\ The President did
    not reply until November 21, 1997,\85\ by which time the Secretary of
    State had signed (in September, 1997) a Memorandum of Understanding
    (the ``MOU'') with Russia, Ukraine, Belarus and Kazakstan to ``multi-
    lateralize'' the ABM Treaty. The MOU would create an arrangement
    embodying features that had been in effect between the United States
    and the USSR.\86\ President Clinton's November 17, 1997 letter stated
    that he would ask the Senate to give advice and consent to the MOU.\87\
    The November 21, 1997 letter also stated
    ---------------------------------------------------------------------------
        \84\ Letter from Benjamin A. Gilman, Chairman, Committee on
    International Relations, House of Representatives, to President William
    J. Clinton, 2-3 (June 16, 1997) (App. 14).
        \85\ Letter from President William J. Clinton to Benjamin A.
    Gilman, Chairman, Committee on International Relations, House of
    Representatives, 2 (Nov. 21, 1997) (App. 7). Letter from President
    William J. Clinton to Benjamin A. Gilman, Chairman, Committee on
    International Relations, House of Representatives, (May 21, 1998) (App.
    11).
        \86\ United States of America, Republic of Belarus, Ukraine &
    Kazakstan, Memorandum of Understanding Relating to the Treaty Between
    the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972 (Sept. 26, 1997) (App. 15).
        \87\ Letter from President William J. Clinton to Benjamin A.
    Gilman, Chairman, Committee on International Relations, House of
    Representatives 1 (Nov. 21, 1997) (App. 7).

              [N]either a simple recognition of Russia as the sole ABM
            successor (which would have ignored several former Soviet
            states with significant ABM interests) nor a simple recognition
            of all NIS states as full ABM successors would have preserved
            fully the original purpose and substance of the Treaty, as
            approved by the Senate in 1972).\88\
    ---------------------------------------------------------------------------
        \88\ Id. at 2.

        In addition, the letter stated that, if the Senate did not consent
    to the MOU as a Treaty, succession arrangements would ``simply remain
    unsettled,'' \89\ and in any event the ABM Treaty that had been in
    force between the United States and USSR ``would clearly remain in
    force.'' \90\ On March 3, 1998, Representative Gilman and Senator Jesse
    Helms \91\ observed that if none of the four USSR-successor States that
    had signed the MOU were bound by the ABM Treaty, it followed that the
    Treaty was no longer in force.\92\
    ---------------------------------------------------------------------------
        \89\ Id. at 3.
        \90\ Id.
        \91\ Letter from Benjamin A. Gilman, Chairman, Committee on
    International Relations, House of Representatives, and Jesse Helms,
    Chairman, Committee on Foreign Relations, Senate (March 3, 1998) (App.
    16).
        \92\ Id. at 3.
    ---------------------------------------------------------------------------
        On May 21, 1998 President Clinton responded that the Executive
    Branch had concluded that ``there is no question that the ABM Treaty
    has continued in force and will continue in force . . .''. Also,
    President Clinton stated that ``[t]he United States and Russia clearly
    are Parties to the Treaty. . . .'' \93\ The President explained neither
    the basis for this conclusion nor how the conclusion can be reconciled
    with his November 1997 response to Representative Gilman.
    ---------------------------------------------------------------------------
        \93\ Letter from President William J. Clinton to Benjamin Gilman,
    Chairman, Committee on International Relations, House of
    Representatives 2 (May 21, 1998) (App. 11). Also, on October 5, 1998,
    Senators Trent Lott, Don Nickles, Larry E. Craig, Jon Kyl, Jesse Helms,
    Connie Mack, Paul Coverdell and Bob Smith wrote President Clinton a
    letter stating their view that ``the ABM Treaty has lapsed and is of no
    force and effect unless the Senate approves the MOU, or some similar
    agreement, to revive the Treaty.'' Letter from Senators Trent Lott, Don
    Nickles, Larry E. Craig, Jon Kyl, Jesse Helms, Connie Mack, Paul
    Coverdell and Bob Smith to President William J. Clinton (Oct. 5, 1998)
    (App. 17.) On December 17, 1998, President Clinton replied, stating
    that he would provide the MOU to the Senate for its advice and consent
    (App. 18).
    ---------------------------------------------------------------------------
    D. The United States'' 1972 View of How it Would Benefit from an ABM
            Treaty
        In 1972, Gerard Smith, Director of the Arms Control and Disarmament
    Agency in the Nixon Administration, told the Congress the following:

              The treaty contains a general commitment not to build a
            nationwide ABM defense nor to provide a base for such defense.
            This general undertaking is supplemented by certain specific
            provisions. By this general undertaking and the specific
            commitments, both countries in effect agree not to challenge
            the effectiveness of each other's missile deterrent
            capabilities by deploying widespread defenses against them.
            This means that the penetration capability of our surviving
            deterrent missile forces can be assured. This, to my mind,
            bears directly on concerns about a first strike against the
            United States. As long as we maintain sufficient and survivable
            retaliatory forces, this new assurance of their penetration
            capability makes ``first strike'' as a rational act
            inconceivable, in my judgment. I believe this is a development
            of prime significance for U.S. security.\94\
    ---------------------------------------------------------------------------
        \94\ Statement by United States Arms Control and Disarmament Agency
    Director Gerard C. Smith, Strategic Arms Limitations Agreements (June
    28, 1972), reprinted in U.S.C.A.C.D.A. Documents on Disarmament 1972,
    at 423.

        Hence, according to that view, a party without ABM defenses would
    be less likely to launch first strikes, and therefore would be less
    likely to start a nuclear war.\95\
    ---------------------------------------------------------------------------
        \95\ Report by the United States Senate Foreign Relations
    Committee, Treaty on Limitation of Antiballistic Missile Systems, S.
    Exec. Rep. 92-28 (July 21, 1972) (App. 19), quoting former Assistant
    Secretary of Defense for International Security Affairs Paul Warnke,
    that ``[a]ccordingly, both sides have accepted the principle that
    safety resides not in physical defense but in the certainty that the
    attacker would be destroyed by the retaliatory strike that the other
    side would be able to mount.''
    ---------------------------------------------------------------------------
       iv. principles of international law that bear on the question of
     whether the abm treaty between the united states and the ussr became,
    upon the ussr's extinction, a treaty between the united states and the
                               russian federation
    A. The December 1991 Declaration That the USSR Had Ceased to Exist
            Correctly Characterized Under International Law the Changes
            That Occurred on What Had Been the USSR's Territory
        It is not necessary to resolve any dispute as to whether the USSR
    became extinct in December 1991, for there has been no dispute between
    the United States and the USSR's successor States on this point. It
    bears noting, however, that, had the parties put the question to a
    disinterested tribunal, that tribunal would have had ample grounds for
    concluding that the USSR did become extinct at that time, for after
    December 1991 the USSR lacked the attributes of ``statehood'' that are
    essential elements of a State's existence, i.e. sovereignty over
    defined territory inhabited by a permanent population, and the power to
    conduct foreign relations.\96\ At the close of the day on December 8,
    1991, each of fifteen States had sovereignty over a part of what had
    been the USSR's territory. No State claimed that even one pyt of
    territory remained as USSR territory.\97\
    ---------------------------------------------------------------------------
        \96\ A State must have (a) a permanent population; (b) a defined
    territory; (c) a government; and (d) capacity to enter into relations
    with other States. Restatement (Third) of the Foreign Relations Law of
    the United States Sec.  201 (1986). A State has territorial sovereignty
    if it ``has a monopoly on the exercise of governmental power within its
    borders . . . .'' Societe Nationale Industrielle Aerospatiale v. United
    States District Court for the Southern District of Iowa, 482 U.S. 522,
    557 (1987) (Blackman, J., concurring in part and dissenting in part);
    Hoyt v. Sprague, 103 U.S. 613, 630 (1880). Justice Story, as quoted in
    Cherokee Nation v. Southern Kan. R. Co., 33 Fed. 900, 906 (W.D. Ark.
    1888), described sovereignty as the ``supreme, absolute, uncontrollable
    power; the jus summi imperii; the absolute right to govern.'' The
    fifteen states included the Baltics, i.e. Latvia, Lithuania, and
    Estonia, which the United States and Western European States did not
    regard as having been absorbed into the USSR. See generally Lawrence S.
    Eastwood, Jr., Secession, State Practice and International Law after
    the Dissolution of the Soviet Union and Yugoslavia, 3 Duke J. Comp.
    Int'l L. 299, 316-22 (1983); Ruta M. Kalvaitis, Citizenship and
    National Identity in the Baltic States 16 B.U. Int'l L.J. 231, 234-39
    (1998).
        \97\ A pyt in the Russian language is the smallest measure of area,
    as in, ``not a single inch.'' Russian-English Dictionary 517 (E.P.
    Dutton & Co. 1973).
    ---------------------------------------------------------------------------
        Moreover, the USSR's dissolution was marked by other consequential
    changes: (1) It occurred abruptly, out of strong secessionist pressures
    that created the risk of widespread civil strife, rather than by a
    deliberate and peaceful evolution. (2) The USSR government was not a
    party to any of the declarations of dissolution or independence or to
    the organizational agreements of the CIS or to any other agreements
    among the newly independent States. (3) Within the several years
    immediately before dissolution was declared formally, the USSR
    government had yielded its political and military control over the
    other Warsaw Pact States. (4) In that period before formal dissolution,
    the USSR government abolished the Communist Party's monopoly on
    domestic political power, thereby facilitating the acquisition by the
    people of the USSR's constituent ``republics'' of control of their
    territories and economies, and removing an obstacle to the emergence of
    the new States.\98\ (5) The demography of the new states was markedly
    different from that of the USSR, the former being far more ethnically
    homogeneous than the latter was. (6) None of the newly independent
    States separately has military/strategic resources (including
    agricultural and mining assets and geographical assets such as access
    to various ports and contiguity with certain regions on land) that are
    on par with those possessed by the USSR.
    ---------------------------------------------------------------------------
        \98\ See generally accounts collected in The Decline and Fall of
    the Soviet Empire (B. Gwertzman and M. Kaufman, eds. 1992) For a
    description of Russia's place in the USSR, see Richard Pipes, Russia
    Under the Bolshevik Regime (1993).
    ---------------------------------------------------------------------------
        International law does not consider a State extinct solely because
    it has lost some territory or population. But no USSR successor State
    embodies the USSR's international legal personality; indeed, none even
    claims to do so. Given the abruptness of the loss of territory and
    population, the loss of empire, and the loss of central control over
    the inhabitants of the fifteen sub-states that led to their
    independence, the changes in ethnic concentrations and in military/
    strategic resources, it is not hard to understand why the United States
    agreed with the newly-emerged States that the USSR's identity had
    disappeared. Hence, the successor States and the United States aptly
    concluded that the USSR had ``ceased to exist,'' i.e., ``was no more.''
    \99\
    ---------------------------------------------------------------------------
        \99\ ``[S]tates fully extinguished lose all international
    personality . . ..'' Amos S. Hershey, The Essentials of International
    Public Law and Organization 215 (rev. ed. 1935).
    ---------------------------------------------------------------------------
    B. The ABM Treaty Was a Bilateral Treaty
        A bilateral treaty is a treaty between two ``sides,'' which usually
    are two States.\100\ Only the United States and the USSR were parties
    to the ABM Treaty. The Treaty specified no means for adding
    parties.\101\
    ---------------------------------------------------------------------------
        \100\ Arnold Duncan McNair, The Law of Treaties, British Practice
    and Opinions 5 (1938).
        \101\ Confining discussion in this Memorandum to bilateral treaties
    does not imply that a State's extinction has no effect on multilateral
    treaties of which it was a party. State succession as regards
    multilateral treaties is discussed in Hubert Beemelmans, State
    Succession in International Law: Remarks on Recent Theory and State
    Praxis, 15 B.U. Int'l L.J. 71, 85 (1997); Yehuda Z. Blum, U.N.
    Membership of the ``New'' Yugoslavia: Continuity or Break?, 86 Am. J.
    Int'l L. 830 (1992).
    ---------------------------------------------------------------------------
    C. If Neither Judicial Decision, Diplomatic Practice Nor Treaty
            Provides Trustworthy Evidence on a Disputed Point of Customary
            International Law, a Court Will Consult the Works of Scholars
            for Evidence of What the Law Is
        International law, like common law in Anglo-American jurisprudence,
    can grow out of long-practiced custom that becomes accepted as
    law.\102\ In ascertaining custom, courts often consult the works of
    scholars, as the Supreme Court explained in The Paquete Habana, a
    landmark case in 1898:
    ---------------------------------------------------------------------------
        \102\ On the role of custom in the development of the common law,
    see William Blackstone, I Commentaries on the Laws of England 69-80
    (James DeWitt Andrews, ed., 4th ed., 1899); Arthur Reed Hogue, Origins
    of the Common Law 190-200 (1966); David J. Bederman, The Curious
    Resurrection of Custom: Beach Access and Judicial Takings, 96 Colum. L.
    Rev. 1375, 1451 (1996). On the role of custom in the development of
    international law, see O'Connell, I International Law, supra note 39,
    at 15-20, 35-36.

              [W]here there is no treaty and no controlling executive or
            legislative act or judicial decision, resort must be had to the
            customs and usages of civilized nations, and, as evidence of
            these, to the works of jurists and commentators who by years of
            labor, research and experience, have made themselves peculiarly
            well acquainted with the subject of which they treat. Such
            works are resorted to by judicial tribunals, not for the
            speculations of their author concerning what the law ought to
            be, but for trustworthy evidence of what the law really
            is.\103\
    ---------------------------------------------------------------------------
        \103\ The Paquete Habana, 175 U.S. 677, 700 (1900) (citation
    omitted).

        Courts continue to look to distinguished commentators for aid in
    ascertaining customary international law.\104\
    ---------------------------------------------------------------------------
        \104\ Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423
    (1964); See also Hilton v. Guyot, 159 U.S. 113, 163 (1895); United
    States v. Nippon Paper Indus. Co., 109 F.3d 1, 10-11 (1st Cir. 1997).
    ---------------------------------------------------------------------------
    D. The Works of Scholars Support the Conclusion That a Bilateral Treaty
            Other than a Dispositive Treaty Does Not Survive the Extinction
            of One of the Treaty Partners
        In very general terms, a dispositive treaty is one that creates a
    disposition--as of a political boundary, for example--that is intended
    to be perpetually respected. That the ABM Treaty is not a dispositive
    treaty is shown at Part IV.K below. A treaty that is not dispositive is
    called a ``personal'' or a ``real'' or ``political'' treaty.
        A widely-quoted author on the law of State succession is D.P.
    O'Connell. According to Professor O'Connell:

              There has been, at least since the late nineteenth century,
            almost unanimous agreement that personal treaties of a totally
            extinguished State expire with it because they are contracted
            with a view to some immediate advantage, and their operation is
            conditional on the nice adjustment of the political and
            economic relations which they presuppose. When this adjustment
            is upset the rationale of the treaty is destroyed.\105\
    ---------------------------------------------------------------------------
        \105\ D. P. O'Connell, The Law of State Succession 16 (1956)
    (footnotes omitted). The rationale for treaty lapse has also been
    characterized as a case of ``impossibility of performance,'' i.e., it
    is impossible for an extinct State to do anything; ergo, it is
    impossible for an extinct State to perform its predecessor's treaty
    obligations. The principles of impossibility-of-performance are
    elaborated in a Memorandum from the law firm of Hunton and Williams to
    the Heritage Foundation, The Collapse of the Soviet Union and the End
    of the 1972 Anti-Ballistic Missile Treaty 4-10 (June 15, 1998) (David
    B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors).

        The principle that bilateral treaties of a State lapse on the
    State's extinction became a part of the scholarly tradition of
    international law even before the United States was founded, and
    European scholarly works on international law were well known in the
    United States in the early Nineteenth Century. The most prominent work
    was by Emmerich de Vattel, a Swiss scholar who wrote in the second half
    ---------------------------------------------------------------------------
    of the Eighteenth Century. Vattel wrote:

              In the same manner as a personal treaty expires at the death
            of the king who has contracted it, a real treaty is dissolved,
            if one of the allied nations is destroyed,--that is to say, not
            only if the men who compose it happen all to perish, but, also
            if, from any cause whatsoever, it loses its national quality,
            or that of a political and independent society.\106\
    ---------------------------------------------------------------------------
        \106\ Emmerich de Vattel, The Law of Nations, Book II, Chap. XIII,
    sec. 203, 215 (in English translation 1833). Vattel's work was first
    published in French, Le droit de gens, ou, Principes de la loi
    naturelle, applique a la conduite, aux affaires des nations, et des
    souverains (1758). Vattel was published in English (in New York), at
    least as early as 1787 (for Berry and Rogers). Vattel has been cited in
    148 cases in the Supreme Court, from Miller v. The Resolution, 2 U.S.
    (Dall) 1, 15 (1781) to New Jersey v. New York, 523 U.S. 767 (1998).

        Another of the prominent early works was Frederic de Martens' The
    Law of Nations, published in 1788. Martens' career included
    professorships of law at the Imperial School in St. Petersburg and at
    the University of Gottingen; as representative of Russia at many
    official conferences; and as an arbiter in international disputes, for
    which he became known as ``Chief Justice of Christendom.'' \107\ An
    English translation of Martens'' work was published in Philadelphia in
    1795, dedicated to President George Washington. Martens wrote:
    ---------------------------------------------------------------------------
        \107\ George A. Finch, The Sources of Modern International Law 40-
    41 (1937); Terry Nardin, Law, Morality and the Relations of States 64
    (1983).

              TREATIES, properly so called, cease to be obligatory when the
            foreign power with whom they were concluded ceases to exist,
            and when the state passes under the dominion of another
            power.\108\
    ---------------------------------------------------------------------------
        \108\ Georg Frederick von Martens, The Law of Nations, Book II,
    Sec. 8, 56 (trans. from the French by William Cobbett, 1795).

        Henry Wheaton made the same point in his Elements of International
    Law in 1836, perhaps the first treatise exclusively on international
    law written in the United States. Wheaton was Justice of the Marine
    Court of New York. Later, as the official reporter of the U.S. Supreme
    Court, he edited twelve volumes of the Supreme Court's reports. He then
    became, in succession, Charge d'affaires of the United States to
    Denmark, U.S. Minister to Prussia, and Lecturer on International Law at
    Harvard University.\109\ Professor Wheaton wrote:
    ---------------------------------------------------------------------------
        \109\ Finch, supra note 107, at 35-36.

              Treaties, properly so called, or fodera, are those of
            friendship and alliance, commerce and navigation, which even if
            perpetual in terms, expire of course . . . in . . . case either
            of the contracting parties loses its existence as an
            independent State.\110\
    ---------------------------------------------------------------------------
        \110\ Henry Wheaton, Elements of International Law 191 (1836)
    (unabridged republication by Da Capo Press 1972). ``Fodera'' are
    treaties. A ``fodus'' is a treaty, a league or a compact. Black's Law
    Dictionary 770 (rev. 4th ed. 1968).

        In 1889, the State Department stated as a ``principle of public
    law'' that a treaty expires when one of the parties ``loses its
    existence.'' \111\ In support, the State Department quoted from General
    Henry W. Halleck's International Law,\112\ written in 1861:
    ---------------------------------------------------------------------------
        \111\ United States Department of State, Treaties and Conventions
    Concluded Between the United States of America and Other Powers Since
    July 4, 1776, 1236 n.2 (1899), quoting Halleck's International Law 899,
    which is materially the same as Henry W. Halleck I International Law
    316 (G.S. Baker ed., 4th ed. 1908).
        \112\ Halleck, the adopted son of Baron Frederic von Steuben, was a
    career soldier and lawyer. He was General-in-Chief of the United States
    Army in the Civil War until replaced by General Ulysses S. Grant. In
    1861 he wrote his first book on international law. It was updated in
    1866 and has appeared in many subsequent editions. Halleck's career as
    soldier and lawyer is sketched in Scott R. Morris, The Laws of War:
    Rules by Warriors for Warriors, 1997 Army Law. 4, 10 (1997).

              The principle of public law which causes Treaties under such
            circumstance [i.e., the cessation of a State's existence as an
            independent State] to be regarded as abrogated is thus stated:
            ``The obligations of Treaties, even where some of their
            stipulations are in their terms perpetual, expire in case
            either of the contracting parties loses its existence as an
            independent State . . .''. \113\
    ---------------------------------------------------------------------------
        \113\ United States Department of State, Treaties and Conventions
    Concluded Between the United States of America and Other Powers Since
    July 4, 1776 1236 (1899).

        In 1897, U.S. Secretary of State John Sherman invoked scholarly
    works to explain to the Government of Japan why the treaties made by
    the Kingdom of Hawaii would not survive the U.S. treaty of annexation
    of the Kingdom's territory, i.e., ``[t]he treaty of annexation does not
    abrogate [the Kingdom's treaties], it is the fact of Hawaii's ceasing
    to exist as an independent contractant that extinguishes those
    contracts.'' \114\
    ---------------------------------------------------------------------------
        \114\ United States Secretary of State John Sherman, Note to the
    Minister of Japan (June 25, 1897), quoted in John Basset Moore, V
    Digest of International Law 349, 350 (1906). The treatises invoked in
    the Note were Halleck's I International Law or Rules Regulating the
    Intercourse of States in Peace and War 316 (4th ed. 1908) and William
    Edward Hall, A Treatise on International Law 96-97 (4th ed. 1895).
    Secretary Sherman was a lawyer who had been a Senator and a
    Representative. He is remembered as the author of the Sherman Antitrust
    Act, 15 U.S.C. Sec.  1 et seq., and the Sherman Silver Purchase Act, 26
    Stat. 289 (1890). See also Territory of Hawaii v. Osaki Mankichi, 190
    U.S. 197, 198-211 (1903) (describing the termination of the Kingdom of
    Hawaii's treaties with other States after it was annexed by the United
    States).
    ---------------------------------------------------------------------------
        Likewise, in 1902 Charles E. Magoon, Law Officer in the Office of
    the Secretary of the War Department, submitted a Report to Secretary of
    War Elihu Root, which Secretary Root ordered to be published. On the
    subject of the treaty obligations of extinct States, the Report states:

              But where there is a complete change, not only of sovereigns
            but of sovereignty, of necessity the agreement ends, for each
            sovereignty must exercise its grace in accordance with its own
            constitution, laws, and customs.\115\
    ---------------------------------------------------------------------------
        \115\ Charles E. Magoon, Law Officer, Division of Insular Affairs,
    Office of the Secretary, War Department, Report to Secretary of War,
    Elihu Root, The Law of Civil Government in Territory Subject to
    Military Occupation by the Military Forces of the United States 304
    (1902).

        In addition, in 1895 Captain Edwin F. Glenn, Acting Judge Advocate
    General of the United States Army, in his Hand-Book of International
    ---------------------------------------------------------------------------
    Law, wrote:

              When some of the stipulations of a treaty imply perpetuity,
            even though the act mentioned to be performed has been
            accomplished according to the letter of the agreement--as, for
            instance, in the recognition of a new state,--the act of
            recognition is complete when accorded; but the state of things
            contemplated implies permanency, and a state is not authorized
            to disregard the obligation imposed. If, however, one of the
            contracting parties loses its existence, or its interior
            constitution undergoes a change of such a nature as to render
            the treaty inapplicable to the new state of things, the
            contract expires.\116\
    ---------------------------------------------------------------------------
        \116\ Edwin F. Glenn, Hand-Book of International Law, 151-52
    (1895).

        Also, William Edward Hall (1895) and Max Huber (1899) published
    treatises expressing the view that upon a State's extinction, its
    personal treaties lapse.\117\
    ---------------------------------------------------------------------------
        \117\ Hall, supra note 114, at 97; Max Huber, The Succession of the
    States, International and National Practice in the Nineteenth Century
    191-92 (1899).
    ---------------------------------------------------------------------------
        British scholar Arthur Berriedale Keith assessed the evidence of
    State practice in 1907. Soon after the dissolution of the Dual Monarchy
    of Norway and Sweden, he stated: ``The evidence, from the practice of
    nations, is all in favour of the lack of continuity in treaty
    obligations.'' \118\
    ---------------------------------------------------------------------------
        \118\ Keith, supra note 3, at 19.
    ---------------------------------------------------------------------------
        Similar observations include the following:

              [T]here is no legal resurrection in international law. Once a
            State has become extinct, it cannot resume a continued
            existence. Professor Krystyna Marek, Graduate Institute of
            International Studies, Geneva, 1968.\119\
    ---------------------------------------------------------------------------
        \119\ Marek, supra note 78, at 6.
    ---------------------------------------------------------------------------
              When a State is dismembered into new independent States, its
            treaties as a rule become null and void without descending to
            the new States. Treaties are generally personal in so far as
            they presuppose, in addition to the territory, also the
            existence of a certain sovereign over the territory. To the
            succeeding States the treaties concluded by the former State
            are res inter alios acta. Professor Erik Castren, University of
            Helsinki. 1951.\120\
    ---------------------------------------------------------------------------
        \120\ Erik Castren, Obligations of States Arising from the
    Dismemberment of Another State, XIII Zeitschrift Fur Auslandisches
    Offentliches Recht Und Volkerrecht 753, 754 (1951). ``Res inter alios
    acta' literally, ``a thing done between others,'' Black's Law
    Dictionary 1470 (4th ed. 1951), is used figuratively, as ``it's no
    concern of ours,'' Eugene Ehrlich, Amo, Amas, Amat and More 249 (1987).
    ---------------------------------------------------------------------------
              It is clear that political (including personal and dynastic)
            treaties of the extinguished state fall to the ground.
            Professor Amos H. Hershey, University of Indiana, 1911.\121\
    ---------------------------------------------------------------------------
        \121\ Amos S. Hershey, The Succession of States, 5 Am. J. Int'l L.
    285, 287 (1911). See also id. at 291-92.
    ---------------------------------------------------------------------------
              The extinction of the personality of a state results
            traditionally in an abrogation of all political and military
            treaties concluded between the now extinct entity and other
            states. Professor Gerhard von Glahn, University of Minnesota--
            Duluth, 1962.\122\
    ---------------------------------------------------------------------------
        \122\ Gerhard von Glahn, Law Among Nations 117 (6th ed. 1992).

        Many other scholars have expressed the same opinion.\123\
    ---------------------------------------------------------------------------
        \123\ See, e.g., UN GAOR, 1st Comm., 2d Sess., Annex 14g at 582-83,
    U.N. Doc. A/C.1/212 (1947) (Letter of October 11, 1947 from the
    Chairman of Sixth Committee to the Chairman of the First Committee);
    Restatement (Third) of the Foreign Relations Law of the United States
    Sec.  210(3) (1986); J. L. Brierly, The Law of Nations 153 (6th ed.
    1963); Crawford, supra note 78, at 408; Green Haywood Hackworth, I
    Digest of International Law 297 (1943); Hans Kelsen, Principles of
    International Law 382-87 (2d. ed. 1966); Noyes E. Leech, et al, The
    International Legal System: cases and Materials 980 (1973); Werner
    Levi, Contemporary International Law, A Concise Introduction (2d ed.
    1991); John Bassett Moore, I Digest of International Law 248 (1906);
    O'Connell, I International Law, supra note 39, at 368; L. O. Oppenheim,
    I International Law 553 (1905); Paul Reuter, Introduction to the Law of
    Treaties 186 (2d. ed. 1995); Georg Schwarzenberger, A Manual of
    International Law 169 (5th ed. 1967); Malcolm N. Shaw, International
    Law 694 (4th ed. 1997); Max Sorenson, Manual of Public International
    Law 295-98 (1968); Oscar Svarlien, An Introduction to the Law of
    Nations 111-112 (1955); Okon Udokang, Succession of New States to
    International Treaties 404 (1972); Blum, supra note 101, at 833; Albert
    J. Esgain, Military Servitudes and the New Nations, in III Yearbook of
    World Polity, The New Nations in International Law and Diplomacy
    (William V. O'Brien, ed. 1965), quoting H. D. Reid, International
    Servitudes in Law and Practice 25 (1932); Charles Cheney Hyde, The
    Termination of the Treaties of a State in Consequence of Its Absorption
    by Another--The Position of the United States, 26 Am. J. Int'l L. 133
    (1932); J. Mervyn Jones, State Succession in the Matter of Treaties,
    1947 Brit. Y.B. Int'l L. 360, 373; Josef L. Kunz, Identity of States
    Under International Law, 49 Am. J. Int'l L. 66 (1955); Dieter PapenfuB,
    The Fate of the International Treaties of the GDR within the Framework
    of German Unification, 92 Am. J. Int'l L. 469, 470-71 n.16 (1998);
    Edwin D. Williamson & John E. Osborn, A U.S. Perspective on Treaty
    Succession and Related Issues in the Wake of the Breakup of the USSR
    and Yugoslavia, 33 Va. J. Int'l L. 261, 270-71 (1993); Richard Young,
    The State of Syria: Old or New, 56 Am J. Int'l L. 482, 487 (1962).
    ---------------------------------------------------------------------------
    E. No Controlling Decision of an International Judicial Tribunal or
            Quasi-judicial Tribunal or a Court of the United States Holds
            That an Extinct State's Treaty Automatically Becomes a Treaty
            Between the Extinct State's Successor and the Extinct State's
            Treaty Partner
                1. Courts of the United States
        In Terlinden v. Ames,\124\ the Supreme Court had to decide whether
    the extradition treaty of 1853 between the United States and the
    Kingdom of Prussia remained in force after 1871, when a number of
    Germanic States, including Prussia, formed the German Empire. The Court
    held that the treaty remained in force because the German Empire's
    Constitution had not extinguished Prussia's sovereignty. The Court
    described the adoption of the Empire's Constitution, as follows:
    ---------------------------------------------------------------------------
        \124\ Terlinden v. Ames, 184 U.S. 270 (1902).

              Then came the adoption of the Constitution of the German
            Empire. It found the King of Prussia, the chief executive of
            the North German Union, endowed with power to carry into effect
            its international obligations, and those of the Kingdom, and it
            perpetuated and confirmed that situation.\125\
    ---------------------------------------------------------------------------
        \125\ Id. at 284.

        The Court was careful to distinguish cases in which a State loses
    ---------------------------------------------------------------------------
    its international identity upon joining a union of States:

              Undoubtedly treaties may be terminated by the absorption of
            powers into other nationalities and the loss of separate
            existence, as in the case of Hanover and Nassau, which became
            by conquest incorporated into the Kingdom of Prussia in 1866.
            Cessation of independent existence rendered the execution of
            treaties impossible.\126\
    ---------------------------------------------------------------------------
        \126\ Id. at 283.

        The Court cited as a source an 1889 State Department study of
    treaty succession, i.e., ``Where a state has lost its separate
    existence, as in the case of Hanover and Nassau, no questions [of
    treaty succession] can arise.'' \127\ The Court also invoked a State
    Department analysis of the effect on treaties of a State's loss of
    existence.\128\
    ---------------------------------------------------------------------------
        \127\ Id. at 287.
        \128\ John Davis Bancroft, in Treaties and Conventions Concluded
    Between the United States of America and Other Powers Since July 4,
    1776, 1234-36 (1889).
    ---------------------------------------------------------------------------
        The question of whether a State has become extinct was addressed by
    a Court of Appeals in 1954 in Ivancevic v. Artukovic.\129\ The court
    held that the Kingdom of Serbia had not become extinct when the
    inhabitants of adjacent and smaller south Slavic States joined with
    Serbia to form what was successively called the Kingdom of the Serbs,
    Croats and Slovenes; the Kingdom of Yugoslavia; and the Socialist
    Federal People's Republic of Yugoslavia. Ivancevic therefore does not
    address the consequences of extinction.
    ---------------------------------------------------------------------------
        \129\ Ivancevic v. Artukovic, 211 F.2d. 565, 568-74 (9th Cir.
    1954).
    ---------------------------------------------------------------------------
        Therefore, to the extent that U.S. courts have addressed the
    question of State extinction, the Supreme Court's dictum in Terlinden
    v. Ames is consistent with the scholarly works that a State's treaties
    lapse upon the State's extinction.
                2. International judicial tribunals
        Neither the International Court of Justice nor its predecessor, the
    Permanent Court of International Justice, has handed down a decision
    that turned on the status of personal bilateral treaties of an extinct
    State, but in 1996, in the case Concerning application of the
    Convention on the Prevention and Punishment of the Crime of Genocide
    (Bosnia and Herzegovina v. Yugoslavia), the ICJ Separate Opinion of
    Judge Weeramantry observed that the Genocide Convention survived the
    dismemberment of Yugoslavia because the Convention in embodying
    universal principles of civilized behavior, transcended the concept of
    state sovereignty. Judge Weeramantry distinguished the Genocide
    Convention from treaties that are ``confined within the ambit of a
    State's sovereignty.'' \130\ As to such treaties, ``[a]n important
    conceptual basis denying continuity . . . is that the recognition of
    the predecessor state's treaties would be an intrusion upon the
    sovereignty of the successor state.'' \131\ Hence, Judge Weeramantry
    appears to have concluded that treaties, other than those of universal
    humanitarian concern, do not as a matter of law remain in existence
    upon a State's dissolution.
    ---------------------------------------------------------------------------
        \130\ Case concerning Application of the Convention on the
    Prevention and Punishment of the Crime of Genocide (Bosnia and
    Herzegovina), 1996 I.C.J. 803, at ``640, 646-47 1996 WL 943410
    [I.C.J.]. See also Thomas D. Grant, Territorial Status, Recognition,
    and Statehood: Some Aspects of the Genocide Case (Bosnia and
    Herzegovina v. Yugoslavia), 33 Stan. J. Int'l L. 305 (1997).
        \131\ Id.
    ---------------------------------------------------------------------------
                3. International arbitration panel
        A Tripartite Claims Commission (United States, Austria and Hungary)
    was created in 1927 to fix the amounts of financial obligations to
    Americans assumed by Austria in its World War I Peace Treaty (Vienna,
    1921) with the United States, and the amount assumed by Hungary in its
    World War I Peace Treaty (Budapest, 1921) with the United States. The
    Panel found it unnecessary to resolve any question of obligations
    imposed by customary international law. In passing, however, the Panel
    compared the U.S.-Austria and U.S.-Hungary Peace Treaties to the U.S.-
    Germany Peace Treaty (Berlin, 1921) as follows:

              Unlike the Treaty of Berlin ``restoring friendly relations''
            between the United States and Germany, these Treaties in terms
            ``establish'' for the first time such relations between Austria
            and the United States and between Hungary and the United
            States.\132\
    ---------------------------------------------------------------------------
        \132\ Tripartite Claims Commission (United States, Austria and
    Hungary), Administrative Decision No. 1, 11 (May 25, 1927) (App. 20).

        Thus, the Tripartite Claims Commission believed that the treaties
    of the Austro-Hungarian Empire did not, upon its extinction at or near
    the end of World War I, automatically pass to Austria and Hungary,
    which were two of the States that succeeded to parts of the Empire's
    territory.
    F. The United States Conduct Described by Assistant Attorney General
            Dellinger Does Not Constitute State Practice for Purposes of
            Establishing Customary International Law
                1. Background
        A State's loss of sovereignty over all its territory was relatively
    common in the Nineteenth Century and in the early Twentieth Century.
    France annexed Madagascar and Algiers; Great Britain annexed the
    Southern African Republic; Japan annexed Korea; Italy annexed various
    Italian States; Prussia annexed Hanover, Frankfurt and Nassau; the
    United States annexed the Republic of Texas and the Kingdom of Hawaii.
    In all of those annexations the United States expressed a view that the
    treaties of the annexed States ended automatically with respect to the
    territory annexed.\133\
    ---------------------------------------------------------------------------
        \133\ Jones, supra note 123, at 362.
    ---------------------------------------------------------------------------
        A State's loss of sovereignty over all its territory from a cause
    other than annexation was less common. A vast number of States combined
    to form ``composite'' States or ``confederations'' or ``unions,'' but
    the combining States in many cases retained substantial powers to
    conduct their own foreign relations, including the power to make
    treaties. An example was the Dual Monarchy of Norway and Sweden, which
    ultimately dissolved in 1905. When such a hybrid State dissolved and
    its members resumed full sovereignty, each was expected to continue in
    effect the treaties it had made when it was part of a union.\134\ The
    USSR was different. Before dissolution, its sub-States did not make
    bilateral treaties with nation-States.
    ---------------------------------------------------------------------------
        \134\ Herbert A. Wilkinson, The American Doctrine of State
    Succession 108-109 (1934); Samuel B. Crandall, Treaties, Their Making
    and Enforcement 438 (2d ed. 1916); Robert Willem Gaston de Muralt, The
    Problem of State Succession with Regard to Treaties 87-88 (1954).
    ---------------------------------------------------------------------------
        AAG Dellinger cites four examples of State dissolution to support
    his contention that the ABM Treaty of 1972 survived the USSR's
    extinction: (a) The breakup of the Greater Columbian Union in 1829-1831
    into what became Columbia, Venezuela and Ecuador; (b) the dissolution
    of the Dual Monarchy of Norway and Sweden in 1905; (c) the dissolution
    of the Austro-Hungarian Empire at or near the end of World War I and
    (d) the dissolution of the United Arab Republic in 1961. According to
    Dellinger, those events support the proposition that ``[w]here a state
    divides into its constituent parts, the [diplomatic] practice supports
    the continuity of existing treaty rights and obligations.'' \135\ The
    quotation that Dellinger used is from a law review article by Edwin D.
    Williamson (former State Department Legal Adviser) and John E.
    Osborn.\136\
    ---------------------------------------------------------------------------
        \135\ Memorandum from Walter Dellinger, Assistant Attorney General,
    to John M. Quinn, Counsel to the President, Re: Section 233(a) of S.
    1745 (June 26, 1996), at 3 n.5 (App. 10).
        \136\ Id. (quoting Edwin D. Williamson & John E. Osborn, A U.S.
    Perspective on Treaty Succession and Related Issues in the Wake of the
    Breakup of the USSR and Breakup of USSR and Yugoslavia, 33 Va. J. Int'l
    L. 261, 263 (1993)).
    ---------------------------------------------------------------------------
        Dellinger did not mention Yugoslavia's 1992 dissolution, a curious
    omission inasmuch as it is a recent example of a State that has been
    dissolved, leaving no sovereignty in the extinct predecessor States. It
    is therefore more closely analogous to the USSR case than the foregoing
    four examples of State dissolution. Regarding Yugoslavia's dissolution,
    the United States has taken the position in U.S. Courts and in the U.S.
    State Department's publication Treaties in Force that none of the
    Yugoslav successor States is a continuation of Yugoslavia,\137\ and in
    dealing with the successors of extinct Yugoslavia has ``abandoned any
    assertions of automatic treaty obligations and relied entirely on . . .
    assurances provided by the successor states.'' \138\
    ---------------------------------------------------------------------------
        \137\ Declaration of Christopher R. Hill, Director, Office of South
    Central European Affairs, United States Department of State, filed in
    Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
    (AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
    913 F.Supp. 191 (S.D.N.Y. 1995) (App. 1). The United Nations also
    concluded that no State is the continuation of the SFRY. U.N.
    Resolution 777 (Sept. 19, 1992): ``[T]he State formerly known as the
    Socialist Federal Republic of Yugoslavia has ceased to exist,'' and as
    a consequence the FRY ``cannot continue automatically [the SFRY's UN]
    membership.'' The Security Council thereupon asked the General Assembly
    to rule that the FRY ``apply for membership in the United Nations and .
    . . not participate in the work of the General Assembly.'' The event is
    described in Blum, supra note 101, at 833. See also James B. Foley,
    Deputy State Department Spokesman, Statement on Yugoslav State (Sept.
    30, 1997), 1997 WL 14464578 (App. 21).
        \138\ Williams, supra note 66, at 32.
    ---------------------------------------------------------------------------
        Also, Dellinger does not mention the U.S. practice of regarding as
    lapsed the treaties of States made extinct by the annexation of their
    entire territories. Dellinger gives no reason why those extinctions
    should be treated differently from extinctions caused by dismemberment.
    Indeed, with respect to the question of treaty survival, the scholarly
    literature treats all extinctions in the same way. For example,
    Professor Amos S. Hershey, after explaining that ``States are
    extinguished through voluntary incorporation, forcible annexation,
    division into several States, or union with other States,'' \139\ says:
    ``It is clear that political (including personal and dynastic) treaties
    and alliances of the extinguished State fall to the ground.'' \140\
    ---------------------------------------------------------------------------
        \139\ Hershey, supra note 99, at 215 (emphasis added).
        \140\ Id. at 218.
    ---------------------------------------------------------------------------
                2. A State practice does not contribute to the development
                        of customary international law unless the practice
                        is conducted out of a sense of necessity to comply
                        with international law
        International law, like the common law in Anglo-American
    jurisprudence, can grow out of long-practiced conduct.\141\ In
    international law, it is the conduct of States that is relevant. But
    not all conduct of States contributes to the growth of international
    law because States, like other persons, sometimes engage in lawful
    conduct for reasons that have nothing to do with their international
    legal obligations. For example, States admit aliens for residence,
    borrow money from other States, make treaties with other States, assert
    claims to property located in other States, grant diplomatic asylum,
    settle disputes they have with other States, and do other things
    ``merely for reasons of political expediency.'' \142\ Indeed, in
    dealing with questions of treaty survival, States appear to act in the
    way they act when dealing with questions as to whether they should
    enter new treaties, i.e., they identify their political, economic,
    security and other interests and seek the greatest benefits they might
    achieve, using any arguments they can muster, while giving up as little
    as they have to.\143\ Therefore, to separate State conduct that can
    contribute to the growth of international law from State conduct that
    does not contribute, courts have established a rule that is called
    opinio juris sive necessitatis, which loosely translates as ``a
    conviction that a rule is obligatory.'' \144\ For short, it is opinio
    juris. According to this rule, the only State conduct that can
    contribute to the growth of international law is an act done out of a
    sense that the act is required by international law.\145\
    ---------------------------------------------------------------------------
        \141\ Bederman, supra note 102, at 1451; Blackstone, supra note
    102, at 72; O'Connell, I International Law, supra note 39, at 3-37;
    Mark E. Villiger, Customary International Law and Treaties 3-60 (rev.
    2d ed. 1997).
        \142\ Columbian-Peruvian Asylum Case, 1950 ICJ 4, 277 (Nov. 20).
    See generally Jo Lynn Slama, Opinio Juris in Customary International
    Law, 15 Okla. City U. L. Rev. 603 (1990).
        \143\ Villiger, supra note 141, at 48 (opinio juris seems to
    exclude State conduct engaged in solely for convenience); Columbian-
    Peruvian Asylum Case, 1950 I.C.J. at 276-78.
        \144\ Slama, supra note 142, at 605 n.13, citing H. Steiner & D.
    Vagts, Transnational Legal Problems 290 (3d ed. 1986).
        \145\ In addition to the authorities cited in the text, the
    following describe the rule of opinio juris as an established rule of
    international law: The Paquete Habana, 175 U.S. 677, 700 (1900); The
    Scotia, 14 U.S. (Wall.) 170 (1871); Helen Silving, 'Customary Law':
    Continuity in Municipal and International Law, 31 Iowa L. Rev. 615, 622
    (1946); Herbert W. Briggs, The Columbian-Peruvian Asylum Case and Proof
    of Customary International Law, 45 Am. J. Int'l L. 728, 730 (1951); J.
    L. Brierly, The Law of Nations, An Introduction to the International
    Law of Peace 60-61 (5th ed. 1955); Kunz, supra note 123, at 71-76; D.
    P. O'Connell, I International Law 16, 18 (1965); Bin Cheng, United
    Nations Resolutions on Outer Space: ``Instant'' International Customary
    Law, 5 Indian J. Int'l L. 23, 36 (1965); Clive Parry, The Sources of
    Evidence of International Law 61-63 (1965); John A. Perkins, The
    Changing Foundations of International Law: From State Consent to State
    Responsibility, 15 B.U. Int'l L.J. 433, 440 (1997); Villiger, supra
    note 143, at 52; Glennon, supra note 15, at 69 n.197.
    ---------------------------------------------------------------------------
        According to Sir Hersch Lauterpacht, to cite State practice as
    evidence of ``binding customary international law,'' one must establish
    ``the [State's] conviction that the conduct in question is followed as
    a matter of legal obligation . . .''. \146\
    ---------------------------------------------------------------------------
        \146\ Sir Hersch Lauterpacht, The Development of International Law
    by the International Court 368 (1958).
    ---------------------------------------------------------------------------
        The American Law Institute states the rule of opinio juris as
    follows:

              For a practice of States to become a rule of customary
            international law it must appear that the States follow the
            practice from a sense of legal obligation (opinio juris sive
            necessitatis); a practice that is generally followed but which
            States feel legally free to disregard does not contribute to
            customary law.\147\
    ---------------------------------------------------------------------------
        \147\ Restatement (Third) of the Foreign Relations Law of the
    United States Sec. 102(1)(c)(3) cmt. c (1987).

        In three leading cases, the North Sea Continental Shelf Cases
    (1969),\148\ the Anglo-Norwegian Fisheries Case (1951),\149\ and the
    Columbian-Peruvian Asylum Case (1950),\150\ all involving claims based
    on State practice, the International Court of Justice ruled that a
    failure to establish that the State practice at issue met the opinio
    juris test required a conclusion that the practice had not passed into
    customary international law. Also, in the 1927 Lotus case,\151\ the
    Permanent Court of International Justice likewise rejected a claim
    because of a failure to meet the opinio juris test.
    ---------------------------------------------------------------------------
        \148\ North Sea Continental Shelf Cases, 1969 I.C.J. 4, 44-45 (Feb.
    20).
        \149\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
    See also Fisheries Jurisdiction Case, Gr. Brit and N. Ir. v. Ice, 1974
    I.C.J. 3.
        \150\ Columbian-Peruvian Asylum Case, 1950 I.C.J. 4, 276 (Nov. 20).
        \151\ The Lotus, (1927) P.C.I.J. Rep. Ser. A. No. 10, at 28; Anglo-
    Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
    ---------------------------------------------------------------------------
        The Anglo-Norwegian Fisheries case typifies the application of the
    opinio juris rule. The ICJ held that the evidence did not establish the
    existence of a purported customary rule of international law limiting
    the base-line of territorial waters to ten miles in the case of a bay.
    The evidence was to the effect that some States had adopted the ten-
    mile limit by statute or by treaty, and some arbitral proceedings had
    adhered to the ten-mile limit. Nonetheless, the ICJ ruled that, however
    broadly the limit was respected, the State practice failed as evidence
    of the existence of customary international law because it was not
    practice that responded to a command of law.\152\
    ---------------------------------------------------------------------------
        \152\ Anglo-Norwegian Fisheries Case, 1951 I.C.J. 4, 131 (Dec. 18).
    ---------------------------------------------------------------------------
        Hence, if the acts of diplomacy cited by AAG Dellinger are to serve
    as evidence of customary international law, they must pass the opinio
    juris test.
                3. The record does not show that, in any of the four
                        episodes cited by Dellinger, the United States
                        accepted a treaty as binding on it out of a sense
                        that international law so required
                a. The Dissolution of the Greater Columbian Union, 1829-
                        1831
        In 1819, the Spanish Kingdom of New Granada, the Captain-
    Generalship of Venezuela and Quito (also called Ecuador) formed the
    Greater Columbian Union. The Union Dissolved in 1829-1831. The extent
    to which the three States had submerged their separate identities in
    the Union is a matter of dispute. According to one scholar, the Union
    consisted of three States. Hence, the dissolution did not manifest a
    unitary State's loss of sovereignty over territory.\153\ Later,
    Columbia and the United States signed a new treaty, which contained
    language that can be read to imply that each party had considered the
    pre-dissolution treaties to have continued in effect in the period
    between the Union's dissolution and the making of the new treaty.\154\
    ---------------------------------------------------------------------------
        \153\ McNair, supra note 100, at 412-18.
        \154\ De Muralt, supra note 134, at 86-87.
    ---------------------------------------------------------------------------
        The episode was described by the U.S. Secretary of State in 1832,
    and more recently in books, articles and reports on State succession,
    including a report by a Committee of the UN's International Law
    Commission.\155\ If the United States had manifested an understanding
    that it acted out of a compulsion of international law, that would have
    been a noteworthy event to students of the law of State succession as
    well as to AAG Dellinger, i.e., a bona fide manifestation of action
    opinio juris in a field of few if any such manifestations. Yet, neither
    Dellinger nor any other scholar, identifies any such manifestation.
    ---------------------------------------------------------------------------
        \155\ President Andrew Jackson, Message to the House of
    Representatives, transmitting Report of Secretary of State Edward
    Livingston, on Government of Columbia, H.Doc. No. 173, 22d Cong. 1st
    Sess. (March 16, 1832) (App. 22). Draft Articles on Succession of
    States in Respect of Treaties with Commentaries Adopted by the
    International Law Commission at Its Twenty-Sixth Session, U.N. GAOR,
    1977 Sess. & res. Sess. 1978, Vol. III, at 89, U.N. Doc. A/Conf. 80/16/
    Add. 2 (1979); Jones, supra note 123, at 367-68; O'Connell, V The Law
    of State Succession, supra note 101, at 43-44; D. P. O'Connell, State
    Succession in the New Nations, in International Law and Diplomacy, III
    Yearbook of World Polity 13 (1965); De Muralt, supra note 130, at 86-
    87.
    ---------------------------------------------------------------------------
        There is, in short, nothing to suggest that the United States was
    acting out of opinio juris in conducting treaty relations with the
    successors of the Greater Columbian Union.
                b. The Dissolution of the Dual Monarchy of Norway and
                        Sweden, 1905
        In 1814, the Kingdom of Norway and the Kingdom of Sweden formed a
    ``Dual Monarchy'' by which one person became King of both States.\156\
    In a 1910 letter to the Minister of Japan in Washington, the U.S.
    Secretary of State described the treaty operations of the Dual Monarchy
    from the time it was formed until it dissolved in 1905:
    ---------------------------------------------------------------------------
        \156\ Fridtjof Nansen, Norway and the Union with Sweden 26 (1905).

              In point of fact the Government of Norway and the Government
            of Sweden have hitherto acted independently in execution of
            their treaty engagements, each within its sovereign
            jurisdiction. In the matter of extradition the United States
            has concluded separate treaties with the Governments of Norway
            and Sweden.\157\
    ---------------------------------------------------------------------------
        \157\ Letter from Secretary of State Elihu Root to Minister of
    Japan Takahira (Nov. 10, 1905), reprinted in Hackworth, supra note 123,
    at 362.

        The U.S. practice of concluding separate extradition treaties with
    Norway and Sweden has been interpreted by the UN's International Law
    Commission as recognition that the two States had ``separate
    international personalities.'' \158\
    ---------------------------------------------------------------------------
        \158\ Draft Articles on Succession of States in Respect of Treaties
    with Commentaries Adopted by the International Law Commission at Its
    Twenty-Sixth Session, U.N. GAOR, 1977 Sess. & res. Sess. 1978, Vol.
    III, U.N. Doc. A/CONF.80/16/Add.2 (1979).
    ---------------------------------------------------------------------------
        In 1905, when Sweden and Norway separated from their Union, each
    notified the United States and other States of its position on treaties
    made during the period of the Union, i.e., a treaty that had been made
    specifically with reference to one member of the Union would continue
    in effect between that member and its treaty partner, and would not
    continue in effect otherwise; a treaty made for the Union as a whole
    would continue in effect to the extent that it related to one of the
    members of the Union, and would not otherwise continue in effect. The
    United States and France acquiesced. Great Britain did not acquiesce as
    to the continuance of any treaty with Norway, and as to Sweden,
    reserved the right to examine the treaties one-by-one.\159\
    ---------------------------------------------------------------------------
        \159\ Baty, supra note 3, at 123-24 (1923). See also Keith, supra
    note 3, at 101.
    ---------------------------------------------------------------------------
        Like the episode of the Greater Columbia Union, no public account
    of that episode states or implies that the U.S. acquiescence was driven
    by a sense of necessity to comply with international law. In one
    respect, however, the episodes differ, in that in the period between
    the dissolution of the Greater Columbian Union (1829-31) and the
    dissolution of the Dual Monarchy of Norway and Sweden (1905),
    additional government officials and scholarly writers had expressed
    opinions on the status of treaties of extinct States. None of them
    suggests that the dissolution of Greater Columbia was a precedent
    relevant to the dissolution of the Norway/Sweden Dual Monarchy.
        Thus, to the extent that views of law had been expressed after the
    Greater Columbian Union's dissolution, those views suggested that the
    United States was not bound by law to acquiesce in Norway's and
    Sweden's proposal that any of their treaties with the United States
    remained in effect after their Dual Monarchy's dissolution. Indeed, to
    the scholars, the law appeared to be to the contrary. Hence, there is
    no evidence to support Dellinger's implied claim that the U.S. practice
    vis-a-vis the dissolved Dual Monarchy of Norway and Sweden was arrived
    at by opinio juris. That episode therefore does not support the
    existence of a rule of customary international law.
                c. The Dissolution of the Austro-Hungarian Empire, 1918
        The Austro-Hungarian Empire dissolved at or about the end of World
    War I. The Empire had fought as an ally of the German and Ottoman
    Empires, against a group of States (the ``Allies''), the principals of
    which were Britain, France, Italy, Japan, Russia, (until its withdrawal
    in 1917), and the United States (which entered in 1917 as against the
    German and Austro-Hungarian Empires).
        After the War, the Allies jointly negotiated with Germany the Peace
    Treaty of Versailles (1919),\160\ to which the U.S. Senate denied
    consent. Therefore, the Treaty was not ratified by the United
    States.\161\
    ---------------------------------------------------------------------------
        \160\ Treaty of Versailles, June 28, 1919, reprinted in II Major
    Peace Treaties of Modern History 1265 (F. L. Israel, ed., 1967).
        \161\ Edwin Borchard, Shall the Executive Agreement Replace the
    Treaty?, 53 Yale L.J. 664, 665-66 (1943-1944).
    ---------------------------------------------------------------------------
        The Allies jointly negotiated other Peace Treaties which the United
    States did not ratify, including treaties with Hungary (Trianon,
    1920),\162\ and with Austria (St. Germain-en-Laye, 1919).\163\ The
    United States made peace by separate treaties, i.e., with Germany
    (Berlin, 1921),\164\ with Austria (Vienna, 1921) \165\ and with Hungary
    (Budapest, 1921).\166\
    ---------------------------------------------------------------------------
        \162\ Treaty of Trianon (June 4, 1920).
        \163\ Treaty of St. Germain-en-Laye (Sept. 10, 1919).
        \164\ Treaty of Peace with Germany, Aug. 25, 1921, U.S.-F.R.G.,
    T.S. No. 658 (Excerpts, App. 23).
        \165\ Treaty of Peace with Austria, Aug. 24, 1921, U.S.-Aus., T.S.
    No. 659 (Excerpts, App. 24).
        \166\ Treaty of Peace with Hungary, Aug. 29, 1921, U.S.-Hung., T.S.
    No. 660 (Excerpts, App. 23).
    ---------------------------------------------------------------------------
        In the recitals at the beginning of the U.S. Treaty with Germany,
    the parties state that ``Being desirous of restoring the friendly
    relations existing between the two nations prior to the outbreak of war
    . . . [h]ave for that purpose appointed their plenipotentiaries . . .''
    (emphasis added). The recitals introducing the Treaty with Austria are
    different, i.e., ``Considering that the former Austro-Hungarian
    Monarchy ceased to exist and was replaced by a republican Government .
    . .,'' and ``Being desirous of establishing securely friendly relations
    between the two nations . . . [h]ave for that purpose appointed their
    plenipotentiaries . . .'' (emphasis added). The recitals in the Treaty
    with Hungary are substantially the same as in the Treaty with Austria,
    i.e., ``Considering that the former Austro-Hungarian Monarchy ceased to
    exist and was replaced in Hungary by a National Hungarian Government .
    . .,'' and ``Being desirous of establishing securely friendly relations
    between the two nations . . . [h]ave for that purpose appointed their
    plenipotentiaries . . .'' (emphasis added) Austria insisted that it was
    not the continuation of the Empire.\167\ Austria's position was
    supported by its national courts and by a Tripartite Commission that
    included the United States.\168\ The Commission cited the above-
    described differences in the wording of the U.S. treaties with Germany,
    Austria and Hungary as evidence that neither Austria nor Hungary was a
    continuation of the Empire.
    ---------------------------------------------------------------------------
        \167\ See Kelsen, supra note 123, at 384 n.85; Marek, supra note
    78, at 230-32; Thomas Baty, The Obligations of Extinct States, 35 Yale
    L.J. 434, 435-37 (1925-1926); Oskar Lehner, The Identity of Austria
    1918 as a Problem of State Succession, 44 Aus. J. Pub. Int'l L.63
    (1992). For a history of the dissolution of the Austro-Hungarian
    Empire, see Robert A. Kann, A History of the Habsburg Empire 468-520
    (1974); Rene Albright-Carrie, A Diplomatic History of Europe Since the
    Congress of Vienna 360-371 (1958).
        \168\ Tripartite Claims Commission (United States, Austria and
    Hungary) Administrative Decision No. 1, 4-6, 11-14 (May 25, 1927) (App.
    20).
    ---------------------------------------------------------------------------
        Moreover, in Article II(1) of the 1921 U.S.-Austria Peace Treaty,
    Austria confers on the United States ``the rights, benefits and
    advantages'' conferred by Austria on the other Allied and Associated
    Powers by designated Parts of the Treaty of St. Germain-en-Laye (1919)
    (to which the United States did not become a party),\169\ including
    Part X. Part X of the Treaty of St. Germain-en-Laye, Section II,
    Articles 234-247, provides a regimen for dealing with the treaties of
    the dissolved Austro-Hungarian Empire. Article 234 designates
    particular treaties of the dissolved Austro-Hungarian Empire, and
    provides that these treaties alone ``shall . . . be applied as treaties
    between Austria and those of the Allied and Associated powers party
    thereto . . .''. \170\ Some examples are the Convention of October 11,
    1909, regarding the international circulation of motor-cars, and the
    Convention of June 12, 1902, regarding the guardianship of minors.
    Article 241 provides that each of the Allied or Associate Powers
    ``shall notify to Austria the bilateral agreements of all kinds which
    were in force between her and the former Austro-Hungarian Monarchy, and
    which she wishes should be in force as between her and Austria.'' \171\
    Article 241 further provides that ``[t]he date of the coming into force
    shall be that of the notification.'' \172\ Also, ``[o]nly those
    bilateral agreements which have been the subject of such a notification
    shall be put into force between the Allied and Associated Powers and
    Austria.'' \173\ The U.S. Peace Treaty with Hungary, i.e. Budapest
    (1921), by reference to the Treaty of Trianon (1920), Article II(1),
    adopts by reference Article X of the Treaty of Trianon (1920), which is
    in material respects identical to Article X of the Treaty of St.
    Germain-en-Laye.\174\ Both treaties were submitted to and approved by a
    two-thirds vote in the U.S. Senate.
    ---------------------------------------------------------------------------
        \169\ Treaty of Peace between the United States and Austria
    (Vienna, 1921) (Excerpts, App. 24).
        \170\ Treaty of Peace between Austria on the one hand and the
    Allied and Associated Powers on the Other (St. Germain-en-Laye, 1921).
        \171\ Supra note 169, at Article 234 (Excerpts, App. 24).
        \172\ Id. at Article 241.
        \173\ Id.
        \174\ Treaty of Peace Between the United States and Hungary
    (Budapest, 1921) (Excerpts, App. 25).
    ---------------------------------------------------------------------------
        In 1923 the State Department Solicitor explained that Article II
    (i) of the 1921 Treaty with Austria, by incorporating section 241 of
    the Treaty of St. Germain-en-Laye, had the effect of terminating the
    U.S.-Austria Naturalization Treaty of 1870.\175\ In 1927 the State
    Department Solicitor explained that Article 241 gave the United States
    a ``right . . . to revive, by giving notice to Austria within a
    specified period, any treaty or convention which it may be desired to
    continue in effect.'' The Solicitor explained further that the United
    States did not within the period specified in Article 241, give notice
    of ``its intention to revive the Consular Convention concluded between
    this country and Austria-Hungary on July 11, 1870,'' adding that the
    Department ``therefore does not consider that this Consular Convention
    is now in force.'' \176\
    ---------------------------------------------------------------------------
        \175\ Letter from United States State Department Solicitor to Mr.
    Vallance, Effect of War on Naturalization Treaty Concluded Between the
    United States and Austria on September 20, 1870, at 1-2 (Apr. 6, 1923)
    (App. 26).
        \176\ Letter from United States State Dept. Solicitor Green H.
    Hackworth to Mr. Jean Dube 1-2 (May 25, 1927) (App. 27).
    ---------------------------------------------------------------------------
        Given that the United States and Austria agreed to an elaborate
    regimen by which the United States would select the U.S.-Austro-
    Hungarian Empire treaties that it wanted to be in force with Austria,
    and that this regimen was consented to by the Senate, there is no
    support for Dellinger's implied claim that the U.S.-Austro-Hungarian
    treaties continued automatically by operation of law, or Dellinger's
    implied claim that the Executive Branch revived those treaties without
    the Senate's consent.
        In short, the United States did not regard itself as bound by
    international law to the treaties of the extinct Austro-Hungarian
    Empire.
                d. The Secession of Syria from the United Arab Republic,
                        1961
        In 1958, Syria and Egypt formed a union called the United Arab
    Republic (the ``UAR''). In 1961, Syria seceded and was once again
    recognized as a separate State. In the view of the United States, the
    UAR continued to exist notwithstanding Syria's secession, a view shared
    by the UAR itself. Under the circumstances, as a matter of
    international law, treaties would remain in place absent some reason
    why a particular treaty could no longer fulfill its object and purpose.
    Moreover, a scholarly work expresses the opinion that Syria's treaties
    that were in force when it joined the Union never went out of
    force.\177\ Therefore, in 1961 when Syria seceded, its pre-Union
    treaties were in force in any event. The United States did not object
    to continuing with Syria the treaties that the United States had made
    with the UAR, but the United States did not maintain that it continued
    those treaties out of a sense of legal duty.
    ---------------------------------------------------------------------------
        \177\ L. C. Green, The Dissolution of States and Membership of the
    United Nations, in Law, Justice and Equity 162-166 (R. H. Code Holland
    & G. Schwarzenberger, eds., 1967); J. H. W. Verzijl, International Law
    in Historic Perspective 126 (1969); United States Dept. of State,
    Bureau of Intelligence and Research, The Outlook for Nasser, Research
    Memorandum RNA8 at 1 (Oct. 30, 1961) (Declassified, NARA 1/14/99) (The
    1961 separation is called ``The Secession of Syria; U.S. Dept. of
    State, Telegram to American Embassies in Bonn, London, Cairo, etc. The
    State Department had advised the UAR Ambassador that ``[Syria's
    secession] was a special situation in that it was not repeat not a
    matter of a new regime having supplanted an old regime, but of a new
    regime having been created side by side with the previous regime.'')
    (App. 28).
    ---------------------------------------------------------------------------
                4. U.S. practice regarding Yugoslavia's 1992 dissolution
                        shows that the United States does not consider
                        itself bound by international law to maintain in
                        force the non-dispositive treaties of extinct
                        States
        In 1992, the Socialist Federal Republic of Yugoslavia (``SFRY'')
    dissolved and five States emerged on its territory, i.e., Slovenia,
    Croatia; Bosnia and Herzegovina; Macedonia; and the Federal Republic of
    Yugoslavia (Serbia and Montenegro) (``FRY(S&M)''). When the dissolution
    occurred, the FRY(S&M) claimed that it was not a new State but merely a
    reduced-in-size SFRY and therefore was the SFRY's continuation.
        The United States rejected the FRY(S&M)'s claim. In a Declaration
    filed with a Statement of Interest of the United States in U.S.
    District Court in New York in 1995, Christopher R. Hill, Director of
    the State Department Office of South European Affairs, stated:

              In the early part of this decade, the SFRY suffered
            increasing political crisis that ultimately led to dissolution.
            Since 1992 the United States has taken the position that the
            SFRY has ceased to exist and that no state represents the
            continuation of the SFRY.
              The United States' position that the SFRY has ceased to exist
            and that no state represents the continuation of the SFRY is
            consistent with the position of the international community
            generally.\178\
    ---------------------------------------------------------------------------
        \178\ Declaration of Christopher R. Hill, Director, Office of South
    Central European Affairs, United States Department of State, filed in
    Federal Republic of Yugoslavia v. Park-71st Corp., No. 95 Civ. 3659
    (AGS) (S.D.N.Y.) para.para. 3, 5 (Sept. 21, 1995), complaint dismissed,
    913 F. Supp. 191 (S.D.N.Y. 1995) (App. 1).
    ---------------------------------------------------------------------------
                5. The U.N. Security Council Decision not to oppose giving
                        the Russian Federation veto power does not evidence
                        customary international law because the decision
                        was not required by international law
        Within days after the USSR dissolved in December, 1991, the Russian
    Federation asked the United Nations Security Council for the USSR's
    Permanent Seat (with veto power) on the Security Council. The United
    States could have exercised its veto to preclude a Security Council
    decision to grant the Russian Federation's request. Instead, the United
    States, at a non-public meeting with other members of the Security
    Council, granted the Russian Federation's request.
        The Security Council made no official announcement at the time
    other than by removing the USSR's nameplate and replacing it with a
    Russian Federation nameplate in the Security Council chamber.\179\ The
    Russian Federation's request was handled quietly and quickly to avoid
    precipitating consideration of proposals to restructure the Security
    Council to abolish the veto power, to merge the veto powers of France
    and Great Britain, and to give veto powers to Germany or Japan or both.
    According to one news account, ``western diplomats are said to be
    lobbying hard to avoid a messy debate on the reform of the Security
    Council.'' \180\ Similarly, former U.S. Ambassador to Italy Richard N.
    Gardner explained: ``The one thing the United States, Britain and
    France wanted to avoid at all costs is anything that would open up the
    Pandora's box of a Charter amendment altering the present membership of
    the Security Council and possibly ending the right of a veto.'' \181\
    ---------------------------------------------------------------------------
        \179\ Michael P. Scharf, Musical Chairs: The Dissolution of States
    and Membership in the United Nations, 28 Cornell Int'l L.J. 29, 46-53
    (1995); Carolyn L. Willson, Current Development: Changing the Charter:
    The United Nations Prepares for the Twenty-First Century, 90 Am. J.
    Int'l L. 115, 117-19 (1996); Yehuda Z. Blum, Russia Takes Over the
    Soviet Union's Seat at the United Nations, 3 Eur. J. Int'l L. 354
    (1992).
        \180\ Trevor Rose, Switch of Soviet Security Council Seat Could
    Spur Reform Ideas, Wash. Post., Dec. 26, 1991, at A25; see also Paul
    Lewis, 3 Western Powers for Russian Takeover of Soviet U.N. Seat, N.Y.
    Times, Dec. 24, 1991, at A8; Paul Lewis, West Acts to Defer Issue of
    New U.N. Council Seats, N.Y. Times, Jan. 3, 1992, at A6; Sam Jameson,
    Japan to Seek Seat on U.N. Security Council, L.A. Times, Jan. 29, 1992,
    at A9.
        \181\ Scharf, supra note 179, at 48, n.104, quoting from a
    statement by former Ambassador Gardner, reported in Paul Lewis, 3
    Western Powers Favor Russian Takeover of Soviet U.N. Seat, N.Y. Times,
    Dec. 24, 1991, at A8.
    ---------------------------------------------------------------------------
        Carolyn L. Willson, U.S. Department of State, has called the
    decision to give the USSR seat to the Russian Federation a ``de facto
    amendment'' of the U.N. Charter, a locution that implies that without
    amendment the U.N. Charter would not have permitted the Russian
    Federation to take the USSR's seat, a tacit statement that the Russian
    Federation was not the same State as the USSR.\182\
    ---------------------------------------------------------------------------
        \182\ Willson, supra note 179, at 117.
    ---------------------------------------------------------------------------
        Professor Michael P. Scharf, who at the time served as the State
    Department lawyer with responsibility for legal issues concerning
    succession to membership at the United Nations, goes no farther than to
    say that ``[W]hat is significant is that the members of the United
    Nations have found it in their interests to act (or at least to depict
    their actions) concerning membership succession in conformity with
    legal principles and precedent.'' \183\ The precedent to which
    Professor Scharf refers is a U.N. decision in 1947: When British
    Colonial India (a member of the U.N. even before Indian independence)
    became independent, it automatically acquired U.N. membership, but
    Pakistan, which emerged as a new State at the same time, had to apply
    for membership.\184\ The USSR episode and the India-Pakistan episode,
    however, differ in a material respect: treating India as though it were
    an incumbent U.N. member, rather than as a new applicant could not
    change the regimen for governing the U.N., whereas allowing the Russian
    Federation to occupy (as incumbent) the USSR's seat on the Security
    Council would vastly change the governing regimen, i.e., as an
    incumbent, the Russian Federation would have a veto power. As just
    another U.N. member it would not. So, when the Security Council gave
    the Russian Federation a veto power, it was not bound to do so on the
    basis of the 1947 decision on India and Pakistan. The Security Council,
    and the U.N. generally, acted on the basis of expediency, not legal
    requirement. Indeed, one commentator, concluding that the India/
    Pakistan episode of 1947 was not analogous to the dissolution of the
    USSR, stated that, ``with the demise of the Soviet Union itself, its
    membership in the UN should have automatically lapsed and Russia should
    have been admitted to membership in the same way as the other newly-
    independent republics.\185\
    ---------------------------------------------------------------------------
        \183\ Scharf, supra note 179, at 67-69.
        \184\ Id. at 68-69.
        \185\ Blum, supra note 179, at 359.
    ---------------------------------------------------------------------------
        Therefore, the USSR/Russian Federation decision does not constitute
    opinio juris as to the survival of treaties of the USSR.
        In sum, U.S. diplomatic practice has not contributed to the
    development of a rule of law that a non-dispositive treaty of an
    extinct State automatically becomes a treaty between a successor State
    and the extinct State's treaty partner.
    G. The 1978 Vienna Convention on Succession of States in Respect of
            Treaties Does Not Resolve Any ABM Treaty Question Because The
            United States Is Not a Party to The Vienna Convention and
            Conventions Do Not Bind Non-Parties
        The United States did not sign the 1978 Vienna Convention at the
    time it was opened for signature in 1978, or since. A State is not
    bound by a convention or treaty to which it is not a party.\186\
    ---------------------------------------------------------------------------
        \186\ Jet Traders Inv. Corp. v. Tekair, 89 F.R.D. 560, 567 (D. Del.
    1981); Restatement (Third) of the Foreign Relations Law of the United
    States Sec.  324(3); Udokang, supra note 123, at 403; Georg
    Swarzenberger, A Manual of International Law 160-61 (5th ed. 1967).
    ---------------------------------------------------------------------------
    H. Article 34.1 of the 1978 Vienna Convention Does Not Reflect a Rule
            That Has Passed into Customary International Law
        Article 34.1 of the 1978 Vienna Convention provides:

              Succession of the States in cases of separation of parts of a
            State 1. When a part or parts of the territory of a State
            separate to form one or more States, whether or not the
            predecessor State continues to exist: (a) any treaty in force
            at the date of the succession of States in respect of the
            entire territory of the predecessor State continues in force in
            respect of each successor State so formed; (b) any treaty in
            force at the date of the succession of States in respect only
            of that part of the territory of the predecessor State which
            has become a successor State continues in force in respect of
            that successor State alone.\187\
    ---------------------------------------------------------------------------
        \187\ Vienna Convention on Succession of States in Respect of
    Treaties, Art. 34.1, U.N. Doc. A/Conf.80/31 (1978) (emphasis added).

        In Filartiga v. Pena-Irala (1980),\188\ a U.S. Court of Appeals
    held that an act of torture committed by a foreign State official
    against a person held in detention in that State's territory violated a
    customary rule of international law. The court inferred the existence
    of the rule from evidence that the use of torture had been universally
    condemned by States. According to the court, foreign States had
    manifested their ``universal abhorrence'' by way of treaties on human,
    political and civil rights; by declarations of the United Nations
    General Assembly; and by domestic laws.\189\ The court, however, issued
    this caution:
    ---------------------------------------------------------------------------
        \188\ Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
        \189\ Id. at 884.

              The requirement that a rule command the ``general assent of
            civilized nations'' to become binding upon them all is a
            stringent one. Were this not so, the courts of one nation might
            feel free to impose idiosyncratic legal rules upon others, in
            the name of applying international law.\190\
    ---------------------------------------------------------------------------
        \190\ Id. at 881.

        In counseling caution, the court could have cited the North Sea
    Continental Shelf case, decided by the International Court of Justice
    in 1969.\191\ The ICJ rejected the contention of Denmark and the
    Netherlands (in a dispute with Germany) that, by reason of the adoption
    of the Convention on the Continental Shelf, a principle for determining
    continental-shelf boundaries between adjacent coastal States (the
    principle of ``equidistance'') had become a rule of customary
    international law. The Convention was opened for signature for 1958.
    Between 1958 and 1969, thirty-nine States had become parties.\192\ By
    1969, approximately 70 States were exploring or exploiting continental
    shelf areas.\193\
    ---------------------------------------------------------------------------
        \191\ North Sea Continental Shelf Cases, 1969 I.C.J. 3 (Feb. 20).
        \192\ Id. at 25.
        \193\ Id. at 227 (Lachs, J., dissenting).
    ---------------------------------------------------------------------------
        Denmark and the Netherlands argued that the participation of 39
    States in the Convention was sufficient to establish the equidistance
    principle as a rule of customary international law binding on every
    coastal State, not just the 39 States that were parties to the
    Convention. The ICJ rejected the argument. The participation of 39
    States was not sufficiently ``widespread and representative'' to show
    that the equidistance principle had passed into a rule binding on
    States that were not parties to the Convention. That number of
    participants ``though respectable,'' was ``hardly sufficient'' even
    when compared to the total number of States ``whose interests were
    specially affected,'' i.e. were eligible to join and had continental
    shelves.\194\
    ---------------------------------------------------------------------------
        \194\ North Sea Continental Shelf Cases, 1969 I.C.J. 3, 43 (Feb.
    20).
    ---------------------------------------------------------------------------
        The evidence as to States' acceptance of the Vienna Convention does
    not approach the level of proportional participation that the ICJ found
    insufficiently widespread in the North Sea Continental Shelf case,
    i.e., 39 out of 70 interested States in the Continental Shelf case; 20
    out of at least 185 States in the case of the1978 Vienna Convention
    (all States have an interest in the making of treaties). Moreover, the
    1978 Vienna Convention's participants do not include any developed
    state other than the Holy See or any Western European State, or any
    North American State or any of the five States (United States, the
    Russian Federation, China, France and Great Britain) that has a
    Permanent Seat (and veto power) on the UN Security Council. The line is
    pushed even farther from the regimen of customary international law if
    weight is given to proportion of population, because the 1978 Vienna
    Convention's participants collectively represent about 15 percent of
    the World's population.\195\ Moreover, in the North Sea Continental
    Shelf case the ICJ ruled that the passage of eleven years between the
    Convention's signing and the Court's decision was adequate to judge how
    well the Convention was becoming accepted by States. One commentator
    explained:

        \195\ Participants in the 1978 Vienna Convention are Angola, Bosnia
    and Herzegovina, Brazil, Chile, Cote d'Ivoire, Croatia, Czech Republic,
    Democratic Republic of the Congo, Dominica, Egypt, Estonia, Ethiopia,
    Holy See, Iraq, Madagascar, Morocco, Niger, Pakistan, Paraguay, Peru,
    Poland, Senegal, Seychelles, Slovakia, Slovenia, Sudan, the former
    Yugoslav Republic of Macedonia, Tunisia, Ukraine and Uruguay. (U.N.
    Sales No. F.79.v.10 (1996)). Each of the parties other than the Holy
    See is a ``developing'' State according to the classification used by
    the International Bank for Reconstruction and Development. See The
    World Bank Group, The World Bank's Role, and Countries and Regions
    listings,
    (visited Dec. 29, 1998), and  (visited Dec. 29, 1998). The parties to the 1978 Vienna
    Convention represent about 15 percent of the world's population of 5.9
    billion in 1998. United Nations, Population division, Department of
    Economic and Social Affairs, 1998 Revision of the World Population
    Estimates and Projections (1998) (for world population figure);
    Population Reference Bureau, 1998 World Population Data Sheet (1998)
    (for population of each of the parties to the 1978 Vienna Convention).

              However, when time passes and States neglect to become
            parties to a multilateral instrument, the abstention
            constitutes a silent rejection of the treaty. Early in the
            history of the treaty, it is impossible to determine what
            position States will ultimately take, but 20 years after the
            treaty was drafted, one can gain a fairly clear idea of how
            much acceptance the treaty will probably ever secure.\196\
    ---------------------------------------------------------------------------
        \196\ Richard Baxter, Treaties and Custom, Recuil des Cours 25, 99-
    101 (1970); See also Briggs, supra note 145, at 728.

    If time available for participation is given weight, there is even less
    to commend the 1978 Vienna Convention as a maker of customary
    international law, because nineteen years have elapsed since the 1978
    Convention was signed.\197\
    ---------------------------------------------------------------------------
        \197\ ``It took nineteen years for the 1978 Vienna Convention or
    the Succession of States in Respect of Treaties to enter into force
    with the deposit of the fifteenth instrument of ratification by the
    Former Yugoslav Republic of Macedonia (FYROM) on 7 October, 1996.''
    Koskenniemi, supra note 66, at 89, 93-94 (footnotes omitted).
    ---------------------------------------------------------------------------
        So Article 34.1 of the 1978 Vienna Convention does not meet the
    ``stringent'' requirement suggested by Filartiga or the ``widespread
    and representative'' requirement of the North Sea Continental Shelf
    case. The 1978 Vienna Convention has not passed into customary
    international law and therefore binds no State other than a party to
    that Convention.
    I. The Continuation Principle of the 1978 Vienna Convention Would Not
            Apply to the ABM Treaty Vis-a-vis the Russian Federation
            Because the Continuation of the Treaty Would Conflict with the
            Treaty's Object and Purpose
        The clause in the 1978 Vienna Convention that would require the
    continuation in force vis-a-vis successor States of the treaties of
    their extinct predecessors does not apply if continuation would be
    incompatible with the treaty's object and purpose or would radically
    change the conditions for its operation.
        Article 34.1 of the 1978 Vienna Convention provides:

              Succession of the States in cases of separation of parts of a
            State 1. When a part or parts of the territory of a State
            separate to form one or more States, whether or not the
            predecessor State continues to exist: (a) Any treaty in force
            at the date of the succession of States in respect of the
            entire territory of the predecessor State continues in force in
            respect of each successor State so formed; (b) any treaty in
            force at the date of the succession of States in respect only
            of that part of the territory of the predecessor State which
            has become a successor State continues in force in respect of
            that successor State alone.

        Article 34.2 of the 1978 Vienna Convention provides:

              Paragraph 1 does not apply if: (a) the States concerned
            otherwise agree; or (b) it appears from the treaty or is
            otherwise established that the application of the treaty in
            respect of the successor State would be incompatible with the
            object and purpose of the treaty or would radically change the
            condition for its operation.

        In his November, 1997 letter to Representative Gilman, President
    Clinton stated that the ABM Treaty of 1972 cannot fully achieve its
    purpose with the Russian Federation as the only partner of the United
    States because the Treaty refers specifically to territory outside the
    boundaries of the Russian Federation and within the boundaries of
    Belarus, Kazakstan and Ukraine:

              Neither a simple recognition of Russia as the sole ABM
            successor (which would have ignored several former Soviet
            states with significant ABM interests) nor a simple recognition
            of all NIS states as full ABM successors would have preserved
            fully the original purpose and substance of the Treaty as
            approved by the Senate in 1972.\198\
    ---------------------------------------------------------------------------
        \198\ Letter from President William J. Clinton to Benjamin A.
    Gilman, Chairman, Committee on International Relations, House of
    Representatives (Nov. 21, 1997) (App. 7).

        Therefore, according to President Clinton, to achieve the Treaty's
    purposes, the area of its application must include the territories of
    Belarus, Kazakstan and Ukraine in addition to the Russian Federation.
    To include those territories they would have to be made parties. This
    would require a substantial amendment to the Treaty's provisions on
    decision-making. Moreover, the alteration in the ABM Treaty's
    territorial scope would have a material affect on the ability of
    parties to defend their national territory by means of the one
    permitted ABM site.
        Were Belarus, Kazakhstan and Ukraine simply added as parties
    (assuming, for the sake of argument, President Clinton's view that the
    Treaty remains in force between the United States and the Russian
    Federation), the veto power that the United States has as regards the
    ABM Treaty of 1972 in treaty governance would be destroyed. Also, the
    United States and the Russian Federation together could be outvoted by
    the other three States. So critical a change in the powers of
    governance would not be compatible with the ABM Treaty as adopted by
    the United States and the USSR.
        Moreover, the dynamics of amending the Treaty would change
    drastically. It would no longer be enough for the United States to
    convince the other major party to agree to an amendment. The other
    three could block an amendment, requiring the major parties to withdraw
    and start anew if they desired an amended treaty.
    J. The ABM Treaty Did Not Become a Treaty Between the United States and
            the Russian Federation by Devolution
        In anticipation of dissolving, a State may want to impose its
    treaties on both its treaty partners and its successors. To that end,
    it may proclaim that a treaty will become a treaty between its
    successor and its (the dissolving State's) treaty partner. That
    proclamation is called a ``devolution proclamation.'' Similarly, the
    dissolving State and its about-to-become successor may agree to such a
    devolution. In either case, the devolution does not bind a treaty
    partner.\199\
    ---------------------------------------------------------------------------
        \199\ Draft Articles on Succession of States in Respect of Treaties
    with Commentaries Adopted by the International Law Commission at Its
    Twenty-Sixth Session, U.N. GAOR, 197 Sess. & res. Sess. 1978, Vol. III,
    at 18-25, U.N. Doc. A/CONF.80/16/Add.2 (1979); Restatement (Third) of
    the Foreign Relations Law of the United States Sec.  210 cmt. f (1986)
    ('Subsection (3) adopts the ``clean slate'' theory . . .. Under that
    theory, a new state starts afresh, with neither rights nor obligations
    under the agreements . . . of its predecessor state, unless the new
    state indicates a desire to adopt a particular agreement . . . and the
    other party or parties agree. Even a devolution agreement between the
    predecessor state and the successor state, whereby the latter assumes
    all or some of the agreements . . . of the predecessor state, is
    binding only as between those states; the other party (or parties) to
    an agreement must agree to the substitution of the new state. The
    principle applies both to newly independent states and to a state
    separated from another by secession or other circumstances.'').
    ---------------------------------------------------------------------------
        It follows that neither a devolution proclamation by the USSR nor a
    devolution agreement between the USSR and any one or more of its to-be-
    successor States could bind the United States to accept one or more of
    the successor States as a party to the ABM Treaty.
    K. The ABM Treaty Was Not a Dispositive Treaty
                1. The ABM Treaty did not create a legally recognizable
                        interest in any State other than the Treaty parties
        Some treaties, like some contracts, are thought to create permanent
    rights in third parties. Thus:

              It is equally clear that transitory or dispositive treaties
            remain in force. Of such a character are stipulations
            respecting boundary lines, servitudes or easements resting on
            the land relating to the use and repair of roads (including
            railways) or the navigation of rivers, etc. In these cases the
            rights of third parties, which it would be illegal to ignore or
            destroy, are involved.\200\
    ---------------------------------------------------------------------------
        \200\ Hershey, supra note 121, at 287.

        The ABM Treaty did not purport to transfer any legally enforceable
    right to any third party, and that alone raises a strong presumption
    that no third party had such right.\201\ In addition, Article XV.2 of
    the ABM Treaty allows each party to withdraw on specified grounds,
    without the consent of anyone else, upon six months'' advance notice.
    Finally, a party is allowed to withdraw ``if it decides that
    extraordinary events related to the subject matter of this Treaty have
    jeopardized its supreme interests'' (emphasis added). Hence, the
    decision as to whether to withdraw is vested exclusively in each party.
    Therefore, the ABM Treaty cannot reasonably be read as having
    transferred a legally recognizable interest to any third party.
    ---------------------------------------------------------------------------
        \201\ ``The standard of proof of the existence of rights in rem in
    customary international law is strict, and it is believed, although it
    cannot be demonstrated here, that there is no general rule accepted ex
    opinio juris sive necessitatis that ``real'' or ``localized'' treaties
    automatically bind successor States.'' A. P. Lester, State Succession
    to Treaties in the Commonwealth, 12 Int.''l & Comp. L.Q. 475, 501
    (footnote omitted).
    ---------------------------------------------------------------------------
                2. The ABM Treaty did not evidence an intent to restrict
                        either treaty party's use of particular territory
                        beyond the time that the Treaty was to be in force
        Some scholars suggest that a treaty may create a ``servitude''--
    that is, a restriction on a particular use of territory for the benefit
    of the other party that survives the first party's extinction, even if
    no third-party right is created. Such obligations ``are said to be in
    the nature of covenants running with the land.'' \202\ Whether, in
    international law, such a device as a servitude actually exists, is
    hotly contested.
    ---------------------------------------------------------------------------
        \202\ James Wilford Garner, Questions of State Succession Raised by
    the German Annexation of Austria, 32 Am. J. Int'l L. 421, 432-33
    (1938). To like effect is De Muralt, supra note 130, at 108. See also
    Malcolm N. Shaw, State Succession Revisited, 1994 Finnish Y.B. Int'l L.
    34 77 (``where an existing State comes to an end as an international
    person and is replaced by two or more States it is accepted that
    political treaties will not continue but that territorially grounded
    treaties will continue . . .''.)
    ---------------------------------------------------------------------------
        According to F.A. Vali:

              The ``servitude'' of international law is the traditional
            scapegoat of international jurisprudence. There is hardly any
            concept or doctrine of international law which has suffered
            such contemptuous criticism and blunt rejection, and at the
            same time enjoyed such unsubstantiated approval and wanton
            praise. It has been accused of being the absolute vestige of
            medieval patrimonial, feudal and--last but not least--Roman
            law. It has been attacked as being the hybrid product of a
            servile adaptation of private law concepts, it has been
            indicted as being a superfluous and artificial construction,
            apt to deform international law and to introduce the utmost
            confusion therein. It has been dealt even the deadliest blow
            which can be given to any scientific conception . . . its
            existence has been denied.\203\
    ---------------------------------------------------------------------------
        \203\ F. A. Vali, Servitudes of International Law 42 (2d. ed.
    1958). Arguments pro and con, the existence of international
    servitudes, and the identities of the advocates of each position, are
    given at Esgain, supra note 123, at 43-44.

        But assuming, for the sake of argument, that some restraints on
    land use can survive extinction even though they do not vest rights in
    third parties, there is good reason to assume that the rule would be
    limited to restraints on particularly-described territory. The
    servitude is based on the presumption that a State that granted the
    restriction intended to transfer a permanent property right to another
    State, just as any landowner might transfer to another person a
    permanent right in designated property. That view was expressed by
    ---------------------------------------------------------------------------
    Vattel:

              But it is here to be observed, that treaties or alliances
            which impose a mutual obligation to perform certain acts and
            whose existence consequently depends on that of the contracting
            powers, are not to be confounded with those contracts by which
            a perfect right is once for all acquired, independent of any
            mutual performance of subsequent acts.  If, for instance, a
            nation has forever ceded to a neighboring prince the right of
            fishing in a certain river, or that of keeping a garrison in a
            particular fortress, that prince does not lose his rights, even
            though the nation from whom he has received them happens to be
            subdued, or in any other manner subjected to a foreign
            dominion. His rights do not depend on the preservation of that
            nation; she had alienated them; and the conqueror by whom she
            has been subjected can only take what belonged to her.\204\
    ---------------------------------------------------------------------------
        \204\ Vattel, supra note 102, at X113, Sec.  203, quoted in Samuel
    B. Crandall, Treaties, Their Making and Enforcement 430-31 (1916);
    Jones, supra note 123, at 375 (emphasis added).

    ---------------------------------------------------------------------------
        Similarly, Samuel B. Crandall stated:

              Rights in or over the territory, or real rights, which have
            been created or transferred by treaty, do not expire with the
            extinguishment of the state conveying such rights, but survive
            as against the succeeding territorial sovereign. The
            instruments under which such rights have passed out of the one
            state into the other remain unchanged as documents of
            title.\205\
    ---------------------------------------------------------------------------
        \205\ Crandall, supra note 204, at 430.

        Likewise, ``[t]here is an incapacity in the successor State to
    assert rights of sovereignty greater than those which inhere in respect
    of the territory.'' \206\
    ---------------------------------------------------------------------------
        \206\ Committee on State Succession to Treaties and Other
    Governmental Obligations, International Law Association, The Effect of
    Independence on Treaties 352 (1965).
    ---------------------------------------------------------------------------
        Also, D. P. O'Connell writes:

              A distinction is drawn in traditional international law
            between ``personal'' and ``impersonal'' or ``dispositive''
            treaties. The former are those which are essentially
            contractual and presuppose reciprocity between the parties with
            a view to an agreed end. The latter are those which impress
            upon a territory with some special legal status, and so limit
            the incidence of sovereignty upon it.\207\
    ---------------------------------------------------------------------------
        \207\ O'Connell, I International Law , supra note 39, at 368.

        The ABM Treaty fell within D. P. O'Connell's description of a
    ``personal treaty,'' i.e., it presupposed ``reciprocity between the
    parties with a view to an agreed end.'' If the ABM Treaty had ended by
    a party's withdrawal under Article XV.2, neither party would have been
    further obliged to forego deploying ABM systems anywhere on its
    territory. The end of the Treaty as a result of the USSR's extinction
    could not give the Treaty any greater power to burden particular
    territory. The ABM Treaty therefore was the antithesis of what
    O'Connell describes as treaties that ``impress'' upon a territory a
    ``special legal status'' that ``limit[s] the incidence of sovereignty''
    on that territory. Similarly, the ABM Treaty was the opposite of
    Vattel's example of a right acquired by conquest that is ``once for all
    acquired, independent of any mutual performance of subsequent acts.''
    Finally, it cannot be assumed that the United States has, outside any
    treaty, granted any third State a legal right to require the United
    States to forego deployment of a national missile defense.
        Accordingly, the ABM Treaty was not a dispositive treaty.
                                 v. conclusion
        The ABM Treaty was a bilateral, non-dispositive treaty. In
    accordance with longstanding principles of international law, expounded
    with remarkable consistency by numerous officials and scholars from
    various countries over hundreds of years, when the USSR became extinct,
    its bilateral, non-dispositive treaties lapsed. Hence, the ABM Treaty
    lapsed by operation of law--that is, automatically--when the USSR
    dissolved in 1991. It did not become a treaty between the United States
    and the Russian Federation.

        Senator Ashcroft. I am going to move now to Mr. Rivkin. It
    is my understanding that Mr. Miron is here to be available to
    answer questions. And we will be delighted to have you as a
    resource in that respect.
        I want to try and keep this moving, because the bells will
    ring a little bit later. Pardon me. I never wanted to be a
    prophet quite like that. But I probably have about 20 minutes
    in which to cast my vote. So it might be that I would hear your
    testimony before going.

        STATEMENT OF DAVID B. RIVKIN, JR., PARTNER, HUNTON AND
                        WILLIAMS, WASHINGTON, DC

        Mr. Rivkin. Thank you, Mr. Chairman. On behalf of myself
    and two of my colleagues, whom I want to recognize, Mr. Casey
    to my left, Mr. Bartram behind me, we are also delighted to be
    here. The totality of our views is also set forth in the
    memorandum of June 15, prepared for the Heritage Foundation. If
    you do not mind, I would appreciate it if you can include it in
    the record.

        [The memorandum referred to, ``The Collapse of the Soviet Union and
    the End of the 1972 Anti-Ballistic Missile Treaty: A Memorandum of
    Law,'' is available on The Heritage Foundation web site at: httl://
    www.heritage.org]

        Senator Ashcroft. Without objection, we are pleased to do
    so.
        Mr. Rivkin. And I will proceed with a very short
    introductory statement.
        In May 1998, my law firm, as part of our pro bono
    responsibilities, was asked by the Heritage Foundation to
    consider the legal status of a 1972 ABM Treaty. Based upon our
    review of a text of the treaty, its history, the relevant
    international law authorities and American constitutional law
    sources, we concluded that the ABM Treaty no longer binds the
    United States as a matter of international and domestic law.
        Our argument is as follows: We believe that the ABM Treaty
    became extinct when the Soviet Union dissolved in 1991. We
    believe that treaties are a species of contract that may be
    rendered impossible to perform and may be discharged as a
    matter of law by the disappearance of one or both of the treaty
    partners. Under the applicable rules of international and
    constitutional law, the ABM Treaty could have survived the
    Soviet Union's dissolution only if one or more of the surviving
    post-Soviet States both continued the Soviet Union's
    sovereignty, which is to say its international legal
    personality and were capable of fulfilling unimpaired the
    totality of the terms and conditions of the original treaty. No
    such state survived the Soviet Union's dissolution.
        The President's sometime assertion--and Mr. Chairman
    recounted how mixed the record is in that regard, so the
    President's sometime assertion that Russia is an ABM Treaty
    partner--is, in our opinion, incorrect. It is significant that
    the Russian Federation is not merely a continuation of the
    Soviet Union under a different name and a different system of
    government, as the Soviet Union arguably was a continuation of
    the Romanov Empire.
        The Soviet Union dissolved in 1991. Both the Empire and the
    Russian State around which it was built collapsed. Boris
    Yeltsin's Russia may be many things, but it is certainly not a
    continuation of the Romanov Empire. We believe it is sui
    generis.
        Moreover, even if today's Russia could be considered to be
    a continuation of the Soviet Union, it could not in itself
    carry out the totality of the Soviet Union's obligations under
    the ABM Treaty. That agreement was painstakingly negotiated. It
    was based upon a number of fundamental assumptions about the
    parties and their place in the world order during the cold war.
    All of these assumptions, or at least most of them, are now
    obsolete.
        Moreover, the ABM Treaty had a critical geographical
    component, which at the bottom guaranteed that the United
    States' and the Soviet Union long-range offensive ballistic
    missiles had unrestricted access to the entire territory of the
    other party. The Russian Federation today controls only a part
    of the Soviet Union's territory and has lost control over many
    of the Soviet Union's most important population centers.
        Any treaty with Russia alone would not preserve the
    totality of a bargain that the United States had agreed to with
    the advice and consent of the Senate in 1972. Significantly,
    the conclusion that the ABM Treaty automatically was discharged
    in 1991 is also supported by the application of either of the
    two prevailing paradigms of legal analysis governing questions
    of state succession to treaties, the continuity analysis and
    the clean slate analysis.
        Under the continuity analysis, even if one or more of the
    former Soviet Republics could have been considered to continue
    the USSR's interntional legal personality, the ABM Treaty could
    not have survived because it was a bilateral treaty personal to
    the Soviet Union. Such treaties are generally discharged when
    one treaty partner disappears.
        Moreover, and this is a very important point, even if the
    continuity analysis were to apply, the end result of the
    application of that analysis would have been a series of mini
    ABM Treaties with 15 successor states, or, I should say, post-
    Soviet States, and not either a multilateral treaty with
    several of the post-Soviet States envisioned in the September
    1997 MOU or a single treaty with Russia, the position the
    administration seems to be taking at this time.
        Under the clean slate analysis, one or more of the former
    Soviet Republics would have had to agree to undertake to
    perform the totality of the Soviet Union's ABM Treaty
    obligations, and the United States would have had to accept
    this new state or states as a treaty partner. Significantly,
    that acceptance under the clean slate theory would have
    constituted the creation of a new treaty that could only be
    effected with the advice and consent of the U.S. Senate.
        To summarize, today the ABM Treaty can be revived only with
    the full participation of the U.S. Senate, as provided by the
    U.S. Constitution. Moreover, to ensure that the United States
    obtain the totality of the benefits of its original 1972
    bargain, the ABM Treaty would have to be very significantly and
    substantially redrafted.
        In any case, the substitution of one or more former Soviet
    Republics of the Soviet Union for the USSR would fundamentally
    change the original bargain of 1972, to which the Senate
    consented. In sum, the President cannot, on his own authority,
    change the ABM Treaty in so fundamental a manner, without
    obtaining the Senate' advice and consent again.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Rivkin and material provided
    subsequent to the hearing follows:]

          Prepared Statement of David B. Rivkin, Jr., and Lee A. Casey

                                i. introduction
        In May, 1998, my firm was asked by the Heritage Foundation to
    consider the legal status of the 1972 Treaty on Limitation of Anti-
    Ballistic Missile Systems (``ABM Treaty'') between the United States
    and the Union of Soviet Socialist Republics (``U.S.S.R.'' or ``Soviet
    Union''). Based upon our review of the text of the ABM Treaty, its
    history, and the relevant international law and American constitutional
    law sources, we concluded that the ABM Treaty no longer binds the
    United States as a matter of international or domestic law.
        This is because the Soviet Union disappeared in 1991, rendering
    performance of the ABM Treaty as originally agreed impossible. Because
    there is no state, or group of states--including the Russian
    Federation--that can both be said to have continued the Soviet Union's
    international legal personality (its sovereignty) and that also is
    capable of implementing the totality of the U.S.S.R.'s obligations
    under the ABM Treaty in accordance with that agreement's original
    terms, that treaty was discharged as a matter of law in 1991 and the
    United States is not now legally bound by it.
        As a direct consequence, any new treaty regarding anti-ballistic
    missile defenses between the United States and the former Soviet
    Republics can be effected only through renewed negotiations and the
    agreement of both the United States and one or more of these states.
    Moreover, any such agreement would require the consent of the United
    States Senate before it could be ratified by the President.
                                 ii. background
        The 1972 ABM Treaty limited severely the ability of the United
    States and the U.S.S.R. to defend their respective territory through
    deployment of an anti-ballistic missile system.\1\ However, the
    U.S.S.R. collapsed in 1991. Its fifteen constituent ``republics''
    became independent states, and all were recognized as such by the
    United States.
    ---------------------------------------------------------------------------
        \1\ Treaty on the Limitation of Anti-Ballistic Missile Systems, May
    26, 1972, 23 U.S.T. 3435.
    ---------------------------------------------------------------------------
        Nearly a decade later, the formal status of the Soviet Union's
    bilateral treaties with the United States, including the ABM Treaty,
    remains uncertain. The ``official'' stance of the United States is that
    the matter remains under review.\2\
    ---------------------------------------------------------------------------
        \2\ See U.S. Department of State, Treaties in Force: A List of
    Treaties and Other International Agreements of the United States in
    Force on January 1, 1998, 290 (1998) [hereinafter Treaties in Force]
    (With respect to bilateral treaties with the ``Union of Soviet
    Socialist Republics,'' and their possible applicability to the former
    Soviet Republics, this official listing of United States treaties
    explains that: ``The United States is reviewing the continued
    applicability of the agreements listed below [including the ABM
    Treaty].'').
    ---------------------------------------------------------------------------
        In this regard, the Executive Branch has yet to announce a
    consistent position regarding the ABM treaty. President Clinton has
    both suggested that no single former Soviet Republic, including the
    Russian Federation, could carry out the U.S.S.R.'s ABM Treaty
    obligations, and that the ABM Treaty would nevertheless remain in force
    between the United States and Russia if the Senate were to reject a
    series of agreements, signed by Secretary of State Albright in
    September, 1997 (``September Agreements''), identifying four former
    Soviet Republics (Russia, Belarus, Ukraine and Kazakhstan) as ABM
    Treaty parties.\3\ The President has promised to submit these
    agreements to the Senate for its advice and consent, but has not yet
    done so.
    ---------------------------------------------------------------------------
        \3\ See Letter from William J. Clinton to Benjamin A. Gilman 3-4
    (Nov. 21, 1997) [hereinafter Clinton/Gilman Letter]. In this letter to
    the Chairman of the Foreign Affairs Committee of the House of
    Representatives, the President wrote that ``[n]either a simple
    recognition of Russia as the sole ABM successor (which would have
    ignored several former Soviet states with significant ABM interests)
    nor a simple recognition of all NIS states as full ABM successors would
    have preserved fully the original substance and purpose of the Treaty
    as approved by the Senate in 1972,'' and that if the Senate does not
    consent to ratification of the September Agreements the ``ABM Treaty
    itself would clearly remain in force.'' In a subsequent letter to
    Chairman Gilman, the President stated that ``the United States and
    Russia clearly are parties to the [ABM] Treaty.'' See Letter from
    William J. Clinton to Benjamin A. Gilman (May 21, 1998).
    ---------------------------------------------------------------------------
                                iii. discussion
        The question whether the ABM Treaty survived the Soviet Union's
    fall is complex, and there is no single precedent or authority that
    definitively resolves the issue. However, when the applicable rules of
    international and American constitutional law are consulted, a
    compelling argument emerges that the ABM Treaty no longer binds the
    United States, and that the Senate's approval must be obtained before
    that treaty, or a similar instrument, can bind the United States in the
    future.
    A. The Impact of the Soviet Union's Demise on the ABM Treaty
        The ABM Treaty was a bilateral agreement between the United States
    and the Soviet Union, and its key terms could be performed only by
    those two states. Like any contract,\4\ a treaty's obligations are
    discharged, as a matter of law, when a necessary party (whether an
    individual or a ``legal'' person such as a corporation) to the contract
    disappears, or is otherwise rendered incapable of performance.\5\ As
    the Supreme Court has recognized, a bilateral treaty survives the
    disappearance of a state-party only if there is a successor that
    continues the state-party's international legal personality, its
    ``sovereignty,'' and in which ``the power to execute [the treaty]
    remains unimpaired.'' \6\ Thus, the ABM Treaty could have survived the
    Soviet Union's collapse only if there were one or more successor states
    that continue the U.S.S.R.'s international legal personality and which
    could execute the treaty in accordance with its original terms. No such
    state or group of states exists.
    ---------------------------------------------------------------------------
        \4\ It has long been recognized that treaties are a species of
    contract between states. Head Money Cases, 112 U.S. 580, 598 (1884) (A
    treaty is primarily a compact between independent nations, and depends
    for the enforcement of its provisions on the honor and the interests of
    the governments which are parties to it.); Z. & F. Assets Realization
    Corp. v. Hull, 114 F.2d 464, 470 (D.C. Cir. 1940) (``A treaty is
    primarily a compact between independent nations'').
        \5\ See Restatement (Second) of Contracts Sec.  261, 262 & cmt. a
    (1981).
        \6\ Terlinden v. Ames, 184 U.S. 270, 283 (1902) (``Undoubtedly
    treaties may be terminated by the absorption of Powers into other
    Nationalities and the loss of separate existence, as in the case of
    Hanover and Nassau, which became by conquest incorporated into the
    Kingdom of Prussia in 1866. Cessation of independent existence rendered
    the execution of treaties impossible. But where sovereignty in that
    respect is not extinguished, and the power to execute remains
    unimpaired, outstanding treaties cannot be regarded as avoided because
    of impossibility of performance.'') (emphasis added).
    ---------------------------------------------------------------------------
        In this regard, the ABM Treaty was based upon a number of
    fundamental assumptions about its parties and their place in the world
    order during the Cold War. The ABM Treaty's purpose was to ensure that
    the whole territory of the United States and the Soviet Union would
    remain open to attack by long-range offensive ballistic missiles.\7\
    The premise here was that ensuring a calculated ``balance of terror''
    between the two nuclear superpowers (the only states capable of
    threatening each other with nuclear annihilation) would deter nuclear
    war (the aptly named ``MAD'' or ``mutually assured destruction''
    theory), enabling both states to control the pace of additional
    offensive nuclear deployments. It was assumed that any attempt to build
    a national anti-ballistic missile defense system would undermine the
    delicate ``stability'' of that balance.
    ---------------------------------------------------------------------------
        \7\ This is true with one exception. Under the ABM Treaty, as
    amended, each party was entitled to one ABM site. See Protocol to the
    Treaty on the Limitation of Anti-Ballistic Missile Systems, July 3,
    1974, 27 U.S.T. 1645. The Soviet Union deployed this site around
    Moscow, and the United States--for a time--deployed its site around
    Grand Forks, N.D., to protect a nuclear missile field.
    ---------------------------------------------------------------------------
        Moreover, the ABM Treaty had a critical geographical component.
    Under the Treaty, both population centers and ICBM sites were to remain
    unprotected, and the whole territory of each ABM Treaty partner was to
    be free of ABM defenses (such as certain early warning radars), except
    for the limited systems permitted under the ABM Treaty regime itself.
    In this respect, a number of the key provisions of the ABM Treaty were
    linked to the territory of both superpowers, and would have to be
    rewritten if any party other than the Soviet Union were to undertake
    its ABM obligations, and the United States was to preserve the benefits
    of its original bargain. These include, among others,

       Article I(b), in which the parties agreed ``not to deploy
            ABM systems for a defense of the territory of its country and
            not to provide a base for such a defense, and not to deploy ABM
            systems for defense of an individual region.''
       Article III(a), as amended by the 1974 Protocol, which
            allowed the Soviet Union to deploy one ABM system, with no more
            than one hundred launchers and one hundred interceptors, around
            its national capital, and no more than six ABM radar complexes
            within its territory as a whole.
       Article VI(b), in which the parties agreed not to deploy
            early warning radars except at locations ``along the periphery
            of its national territory and oriented outward.'' \8\
    ---------------------------------------------------------------------------
        \8\ This key provision was designed to prevent the Soviet Union
    from creating a large-scale radar network that could serve as a base
    for an ABM Treaty ``breakout.''
    ---------------------------------------------------------------------------
       Article IX (as clarified by Agreed Interpretation G), in
            which each party agreed not to ``transfer to other States, and
            not to deploy outside its national territory, ABM systems or
            their components limited by this Treaty.'' \9\
    ---------------------------------------------------------------------------
        \9\ In addition, a number of other provisions also would have to be
    rewritten, including Article XIII, which establishes a consultative
    mechanism--the Standing Consultative Commission (``SCC'')--tasked with
    helping the two original treaty parties deal with various treaty
    related issues, and Article XIV, establishing treaty amendment
    procedures that become far more burdensome if more than two parties are
    involved.

    None of these provisions can be implemented in accordance with their
    original terms by one or more of the post-Soviet states. Only the
    Soviet Union could do so. Because the Soviet Union is extinct, the ABM
    Treaty is no longer in force.
    B. The ABM Treaty and the Soviet Union's ``Successor States''
        The President has suggested that, even if the Senate refuses to
    consent to the September Agreements, the ABM Treaty would nevertheless
    survive as an agreement between the United States and the Russian
    Federation. This cannot be the case. Although the President has very
    broad authority to conduct the Nation's foreign affairs, including the
    authority to interpret and implement its treaty obligations, his power
    must be exercised in accordance within the recognized boundaries of
    domestic and international law, as that law is understood and applied
    in the United States.\10\ When these rules are applied, it becomes
    clear that the ABM Treaty cannot be said to have survived as an
    agreement between the United States and Russia.
    ---------------------------------------------------------------------------
        \10\ The President is not a legislator, Youngstown Sheet & Tube Co.
    v. Sawyer, 343 U.S. 579, 587 (1952) (``[i]n the framework of our
    Constitution, the President's power to see that the laws are faithfully
    executed refutes the idea that he is to be a lawmaker.'') and, even in
    the foreign affairs area, the President must exercise his authority in
    ``subordination to the applicable provisions of the Constitution.''
    United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318-19
    (1936). With respect to questions of state succession, his
    determinations are entitled to deference only so long as they are based
    upon the supporting law and facts. Ivancevic v. Artukovic, 211 F.2d
    565, 573-74 (9th Cir. 1954) (``There is no exact formula by which it
    can be determined that a change of a nation's fortunes amounts to a
    continuance of the old or the beginning of a new nation, there can be
    no better equipped vehicle for decision than the Chiefs of State of the
    countries concerned. If their agreed decisions, when based upon
    supporting facts, are not conclusive, they should at least weigh very
    heavily.") (emphasis added).
    ---------------------------------------------------------------------------
        Two competing rules traditionally have been advanced in resolving
    questions of state treaty succession--the ``continuity'' model, under
    which a new state is presumed automatically to be a party to all of the
    treaties of its predecessor, and the ``clean-slate'' model, under which
    a new state is bound by its predecessor's treaties only if: (1) the new
    state agrees to be bound; and (2) the relevant treaty partner itself
    agrees to, or acquiesces in, the new relationship.\11\
    ---------------------------------------------------------------------------
        \11\ See Restatement (Third) of the Foreign Relations Law of the
    United States Sec.  210(3) [hereinafter Restatement (Third)].
    ---------------------------------------------------------------------------
                1. The ABM Treaty Under a Continuity Rule
        The United States is said to favor the continuity analysis.\12\
    However, the continuity rule, or rule of ``universal state
    succession,'' has rarely been applied in practice--by the United States
    or by others--because it would automatically bind a new state, and all
    of its predecessor's treaty partners, to the old state's treaties
    without alteration. When the Soviet Union dissolved, the State
    Department actually claimed to adopt a ``presumptive'' continuity rule
    to determine which of the U.S.S.R.'s bilateral treaties with the United
    States remained in force.\13\ Under this rule, the State Department
    proceeded to make an individual assessment of the Soviet Union's
    treaties with the United States to determine which could be continued
    in force as bilateral agreements between the United States and the
    former Soviet Republics. This ``case-by-case'' approach was continued
    by the Clinton Administration,\14\ and has still not been
    completed.\15\
    ---------------------------------------------------------------------------
        \12\ See e.g., Edwin D. Williamson & John E. Osborn, A U.S.
    Perspective on Treaty Succession and Related Issues in the Wake of the
    Breakup of the USSR and Yugoslavia, 33 Va. J. Int'l L. 261, 264-65
    (1993); Hubert Beemelmans, State Succession in International Law:
    Remarks on Recent Theory and State Practice, 15 B.U. Int'l L.J. 71, 97
    n.97 (1997).
        \13\ Williamson & Osborn, supra note 12, at 264-65.
        \14\ See Clinton/Gilman Letter, supra note 3, at 1 (``The United
    States took the view that, as a general principle, agreements between
    the United States and the U.S.S.R. that were in force at the time of
    the dissolution of the Soviet Union would be presumed to continue in
    force as to the former Republics. It became clear, however,
    particularly in the area of arms control, that a case-by-case review of
    each agreement was necessary.'') (emphasis added).
        \15\ See Treaties in Force, supra note 2, at 290. A similar
    position has been adopted in practice by the former Soviet Republics.
    For example, although the Russian Federation and ten other former
    Soviet republics declared their willingness to be bound by the Soviet
    Union's treaty commitments in the Alma Ata Declaration, the former
    Soviet Republics have not been willing to accept application of the
    universal succession approach. Russia, for example, has stated that it
    will honor those treaties only to the extent that they do not conflict
    with Russian law. Paul R. Williams, ``The Treaty Obligations of the
    Successor States of the Former Soviet Union, Yugoslavia, and
    Czechoslovakia: Do They Continue in Force?, 23 Denv. J. Int'l L. &
    Pol'y 1, 36 (1994).
    ---------------------------------------------------------------------------
        Nevertheless, when a continuity analysis, whether ``presumptive''
    or actual, is applied to the ABM Treaty, it becomes clear that this
    agreement did not survive the Soviet Union's demise. The ABM Treaty was
    a bilateral agreement that was based upon a careful calculation by both
    treaty partners of their competing interests and objectives during the
    Cold War. It ordered one important facet of the relationship between
    the United States and the Soviet Union during that period. Under a
    continuity analysis, such treaties are considered to be political or
    ``personal'' (i.e., to a particular monarch or state) treaties, and
    automatically expire at the sovereign's death or extinction.\16\ Thus,
    ``[t]here has been, at least since the late nineteenth century, almost
    unanimous agreement that personal treaties of a totally extinguished
    State expire with it because they are contracted with a view to some
    immediate advantage, and their operation is conditional on the nice
    adjustment of the political and economic relations which they
    presuppose. When this adjustment is upset the rationale of the treaty
    is destroyed.'' \17\
    ---------------------------------------------------------------------------
        \16\ See E. de Vattel, The Law of Nations or the Principles of
    Natural Law 178 (1758) (Carnegie Institution ed. 1916) (``Just as a
    personal treaty expires at the death of the King, a real treaty comes
    to an end if one of the allied Nations is destroyed; that is to say,
    not only if the men composing it should all happen to perish, but even
    if, for any cause whatever, the Nation should lose its character as an
    independent political society.''). Only a small category of ``real'' or
    ``dispositive'' treaties, involving the grant of rights or obligations
    intended to last in perpetuity, could survive a state's disappearance.
    As Vattel explained:

          [W]e must not confound those treaties or alliances which,
          since they impose the obligation of repeated acts on both
          sides, can not remain in force except through the continued
          existence of the contracting powers, with those contracts
          by which a right is once and for all acquired,
    ---------------------------------------------------------------------------
          independently of any subsequent acts of either party.

    Id. (emphasis added).
    ---------------------------------------------------------------------------
        \17\ 2 D.P. O'Connell, State Succession in Municipal Law and
    International Law 26-27 (1967).
    ---------------------------------------------------------------------------
        Moreover, even assuming that the ABM Treaty were the type of treaty
    that could survive the Soviet Union's dissolution, a continuity
    analysis would not result in an ABM Treaty between the United States
    and the Russian Federation. This is because the Russian Federation is
    not a continuation of the Soviet Union's international legal
    personality. It is, like the other former Soviet Republics, an entirely
    new state.
        Although ``Russia'' was at the heart of the Soviet Union, the
    Russian State that controlled the Soviet Union was not Boris Yeltsin's
    Russia. Rather, it was the successor of the Romanov empire, around
    which the Russian colonial empire of the 18th and 19th centuries had
    been built. In 1991, that empire collapsed, finally following the
    example of the Spanish, British, and French empires before it. The
    borderland territories in Europe and Asia, absorbed by the Russian
    Empire in the 18th, 19th and 20th centuries regained, or established,
    their independence.
        At the same time, the metropolitan Russian state, around which this
    colonial empire was built, also disintegrated. That state, which had
    been created by the Muscovite tsars from the fifteenth through the
    seventeenth centuries, included Great Russia (generally the territory
    of the old Grand Duchy of Muscovy), White Russia (now Belarus, an area
    largely absorbed into the Russian State from territory belonging to the
    medieval Polish-Lithuanian kingdom), and Little Russia or the Ukraine
    (now Ukraine) a territory joined to Muscovy in the 17th century which
    itself could properly claim to be the cradle of Russian
    civilization.\18\
    ---------------------------------------------------------------------------
        \18\ See generally Janet Martin, Medieval Russia 980-1584 1-133
    (1995); Nicholas V. Riasanovsky, A History of Russia 23-59 (4th ed.
    1984).
    ---------------------------------------------------------------------------
        Thus, when the Soviet Union collapsed, its metropolitan center also
    fragmented. In this regard, to fully appreciate the scope of the
    catastrophe that overtook the Russian State in 1991, it is necessary to
    imagine that the British and French colonial empires had not merely
    dissolved over the past fifty years, but that Britain and France also
    had dissolved into their ancient kingdoms, principalities and
    provinces, i.e., England, Scotland, and Wales, or Normandy, Brittany,
    Anjou, and so forth. The Russian Federation cannot, therefore, be
    considered to be merely a continuation of the Soviet Union's
    international legal personality in the same manner that Britain or
    France are clearly the same states that once also were the metropolitan
    hubs of great empires.
        Finally, under Terlinden's teaching, the ABM Treaty could have
    survived between the United States and Russia only if the Russian
    Federation was both a continuation of the Soviet Union's international
    legal personality and was able to fulfil the Soviet Union's obligations
    under the ABM Treaty as originally agreed. The Russian Federation
    cannot fulfil these obligations.
        As explained above, the geographical component was critical to the
    ABM Treaty, at the very core of the bargain struck between the U.S. and
    the U.S.S.R. Russia, however, no longer controls vast stretches of
    former Soviet territory, and can no longer assure the United States
    that its ICBMs and SCBMs would have access to the full area and all of
    the population centers of the old Soviet Union. (Were the United States
    bound, of course, both its territory and population centers would
    continue to be entirely open to attack by Russian missiles.).
                2. The ABM Treaty Under a ``Clean Slate'' Analysis
        When the ABM Treaty is analyzed under a ``clean slate'' approach,
    it also is clear that it did not survive the Soviet Union. Under a
    ``clean-slate'' rule, ``[w]hen a new state emerges it is not bound by
    the treaties of the predecessor sovereign by virtue of a principle of
    state succession . . . and in addition other parties to a treaty are
    not bound to accept a new party as it were, by operation of law.'' \19\
    This view has increasingly gained acceptance since the Second World War
    and the dissolution of the European colonial empires, and was
    identified as the general rule by the American Law Institute's
    Restatement (Third) of the Foreign Relations Law of the United States
    whenever ``part of a state becomes a new state.'' \20\ Under this
    approach, a new state would not be presumed to be bound by its
    predecessor's treaties. Only if the new state agrees to be bound, and
    obtains the consent of its predecessor's one-time treaty partners, can
    such treaty obligations be said to continue. Neither condition has been
    meet with respect to the ABM Treaty.
    ---------------------------------------------------------------------------
        \19\ Ian Brownlie, Principles of Public International Law 668 (4th
    ed. 1990).
        \20\ Restatement (Third), supra note 11, Sec.  210(3); see also
    Brownlie, Principles of Public International Law, supra note 19, 668
    (``The rule of non-transmissibility (forming part of general
    international law) applies both to secession of `newly independent
    states' (that is, to cases of decolonization) and to other appearances
    of new states by the union or dissolution of states.'').
    ---------------------------------------------------------------------------
        Although a number of the former Soviet republics, including the
    Russian Federation, have suggested that they are willing to be bound by
    the ABM Treaty, none have agreed to undertake the Soviet Union's
    obligations without alteration or condition. Moreover, even if one or
    more former Soviet Republics were to agree to accept these obligations,
    they could not become ABM Treaty parties without the corresponding
    consent of the United States. This consent has not been given--as noted
    above, the Executive Branch's official statement in Treaties in Force
    indicates that the matter remains under review--and could not, in any
    case, be given without the consent of the Senate. To substitute one or
    more of the former Soviet republics for the ``Soviet Union'' would so
    fundamentally change the bargain approved by the Senate when it
    consented to the ABM Treaty's ratification, that its consent would have
    to be obtained again.
    C. The President Must Obtain the Advice and Consent of the Senate
            Before Reviving the ABM Treaty and Adding New Parties
        The President has, of course, recognized that the United States
    cannot obtain the same strategic benefits from the ABM Treaty, to which
    it was entitled originally, if only the Russian Federation is an ABM
    Treaty partner. In the September Agreements, the Administration would
    add to the ABM Treaty regime at least four new parties: Russia,
    Belarus, Ukraine, and Kazakhstan. This would transform the ABM Treaty
    into a multilateral convention, and would itself constitute so
    significant an alteration of the original treaty's terms and conditions
    that the Senate's approval would have to be obtained.
        As a President can make a treaty only with the Senate's consent, so
    he can amend a treaty only with that same consent.\21\ The substitution
    of four new parties in place of the original treaty partner is a change
    so significant that it cannot be achieved through the process of
    interpreting a treaty. As described above, the United States entered
    the ABM Treaty on the understanding that it was dealing with a single
    power, capable of implementing its obligations under the treaty. If the
    ABM Treaty were multilateralized, the United States would become
    dependent upon at least four separate states to implement the
    obligations originally assumed and guaranteed by a single state--the
    Soviet Union. This would not only require the United States to accept a
    less advantageous bargain than was originally struck, but also would
    impose upon it the additional burden of assuring the compliance of four
    governments, instead of only one.\22\
    ---------------------------------------------------------------------------
        \21\ Amiable Isabella, 19 U.S. (6 Wheat.) 1, 75 (1821) (``the
    obligations of the treaty [may] not be changed or varied but by the
    same formalities with which they were introduced; or at least by some
    act of as high an import, and of as unequivocal an authority.''); N.Y
    Chinese T.V. Programs v. U.E. Enterprise, 954 F.2d 847, 853-54 (2d Cir.
    1992) (``A significant amendment to a treaty must follow the mandate of
    the Treaty Clause, and therefore must be proposed by the President, and
    ratified following the advice and consent of the Senate . . . [A]
    treaty is `amended' only if the obligations imposed by that treaty
    change.''); see also Treaties and Other International Agreements: The
    Role of the United States Senate, S. Rep. No. 98-205 144-51 (1984)
    (``Amendments to a treaty or international agreement require the same
    procedure as the original agreement, unless otherwise specified in the
    original agreement.''); Restatement (Third), supra note 11, Sec.  339
    cmt. a (``The President's power to terminate an international agreement
    does not imply authority to modify an agreement or to conclude a new
    one in its place.'').
        \22\ In addition, the multilateralization of the ABM Treaty would
    significantly change the ability of the United States to obtain
    amendments and revisions to the Treaty. Under the original agreement,
    the United States was required to obtain the agreement of only one
    treaty partner, the Soviet Union, to any modification of the agreement
    it might wish to make. If the Treaty is transformed into a multilateral
    agreement, the agreement of more than one, and potentially of all four,
    treaties partners would have to be obtained before modifications could
    be effected.
    ---------------------------------------------------------------------------
        If the President attempted to transform the ABM Treaty into a
    multilateral agreement without the Senate's consent, purporting to act
    on his own authority in recognizing one or more Soviet successor states
    as being bound by the ABM Treaty, he would be on the very thinnest of
    constitutional ice. As explained by Justice Robert Jackson in his
    defining concurrence in Youngstown Sheet & Tube Co. v. Sawyer,
    ``Presidential powers are not fixed but fluctuate, depending upon their
    disjunction or conjunction with those of Congress.'' \23\ The
    President's authority is at its ``maximum'' when he acts ``pursuant to
    an express or implied authorization of Congress.'' \24\ By contrast,
    ``[w]hen the President takes measures incompatible with the expressed
    or implied will of Congress, his power is at its lowest ebb.'' \25\
    ---------------------------------------------------------------------------
        \23\ 343 U.S. 579, 635 (1952).
        \24\ Id.
        \25\ Id.
    ---------------------------------------------------------------------------
        It has been the longstanding understanding and practice of both the
    Executive Branch and the Senate that arms control agreements must have
    the Senate's consent.\26\ Indeed, when Congress established the United
    States Arms Control and Disarmament Agency it specifically provided
    that agreements limiting ``the Armed Forces or armaments of the United
    States in a militarily significant manner,'' had to be subject to the
    Senate's advice and consent power, or be based upon ``affirmative
    legislation by the Congress of the United States.'' \27\ Moreover, with
    respect to the ABM Treaty itself, Congress has specifically stated that
    the President may not enter an agreement that ``would substantively
    modify the ABM Treaty unless the agreement is entered pursuant to the
    treaty making power of the President under the Constitution.'' \28\
    ---------------------------------------------------------------------------
        \26\ See S.Rep. No. 98-205, supra note 21, at 149-51.
        \27\ 22 U.S.C. Sec.  2573 (as amended). The undisputed purpose of
    this language was to make clear that ``any action obligating the United
    States to disarm, reduce, or limit our Armed Forces or armaments, shall
    have congressional approval either in the form of a treaty ratified by
    the Senate or, in the case of an obligation other than a treaty, by a
    majority vote of the House and Senate.'' H. Rep. No. 863, reprinted in
    1963 U.S.C.C.A.N. 1110, 1115.
        \28\ See Pub. L. No. 337, Sec.  232, 103d Cong., 2nd Sess., 108
    Stat. 2700.
    ---------------------------------------------------------------------------
        For his part, the President has agreed to this limitation. The
    Senate imposed this condition in its Resolution of Ratification to the
    Document Agreed Among the States Parties to the Treaty on Conventional
    Armed Forces in Europe (CFE)--the so-called CFE ``Flank Document.''
    Specifically, it required that, before ratifying this treaty, the
    President ``shall certify to the Senate that he will submit for Senate
    advice and consent to ratification any international agreement (i) that
    would add one or more countries as state parties to the ABM Treaty, or
    otherwise convert the ABM Treaty from a bilateral treaty to a
    multilateral treaty; or (ii) that would change the geographic scope or
    coverage of the ABM Treaty, or otherwise modify the meaning of the term
    `national territory' as used in Article VI and Article IX of the ABM
    Treaty.'' \29\ The Senate unanimously approved the Flank Amendment, and
    President Clinton accepted this condition. Recognizing Russia, or any
    other former Soviet Republic, as an ABM Treaty partner would violate
    this condition, calling into question the continuing validity of the
    CFE Flank Document.
    ---------------------------------------------------------------------------
        \29\ Senate Report to Accompany Treaty Doc. No. 105-5, Flank
    Document Agreement to the CFE Treaty, 105th Cong. 20-21 (1997).
    ---------------------------------------------------------------------------
        Thus, overall, if the President determines to revise the ABM Treaty
    by accepting the substitution of four former Soviet republics for the
    Soviet Union as a party to that treaty, he must do so based upon his
    own authority which, in these circumstances, will be ``at its lowest
    ebb.'' Given the fact that allowing these states to step into the
    Soviet Union's place in the ABM Treaty would fundamental alter the
    bargain struck by the United States, and originally approved by the
    Senate, it is hard to discern a plausible legal justification for such
    action.
                                   conclusion
        When the Soviet Union dissolved in 1991, the ABM Treaty became
    impossible to perform in accordance with its original provisions.
    Because of the unique terms and conditions of the ABM Treaty, and the
    underlying assumptions of the parties, none of the states that emerged
    from the Soviet Union, either alone or with others, could carry out the
    U.S.S.R.'s obligations under the ABM Treaty. Consequently, the
    obligations of the United States under the Treaty were discharged at
    the time the Soviet Union disappeared.
        Although a number of the former Soviet republics have indicated
    that they are prepared to undertake the U.S.S.R.'s role in the ABM
    Treaty regime, this willingness is insufficient to bind the United
    States. None of these states can claim to continue the Soviet Union's
    international legal personality, and therefore to be the automatic
    successor to its treaties in general, and to the ABM Treaty in
    particular, under a ``continuity'' analysis. In fact, whether a
    ``continuity'' or ``clean slate'' analysis is applied to the Soviet
    Union's dissolution, a case-by-case review of its treaties must be made
    to determine which of those treaties may become binding upon both the
    former Soviet republics and the Soviet Union's one-time treaty
    partners. In this process, each of those partners must agree to accept
    one or more of the former Soviet republics as its treaty partner, and
    to be bound by the relevant agreements in accordance with that
    acceptance.
        In the United States, this renewed agreement to be bound can come
    only by and with the advice and consent of the Senate. The substitution
    of one or more former Soviet Republics for the Soviet Union would
    fundamentally change the ABM Treaty's original bargain, to which the
    Senate consented. The President cannot, on his own authority, change
    the ABM Treaty in so fundamental a manner without obtaining the
    Senate's advice and consent again.

                                     ______

                                      Hunton & Williams
                                             1900 K Street, NW,
                                           Washington, DC, June 2, 1999
    Hon. Jesse Helms,
    Chairman, Committee on Foreign Relations,
    U.S. Senate,
    Dirksen Senate Office Building,
    Washington, DC.

        Dear Mr. Chairman: At the conclusion of the Committee's May 25th
    hearing on the current legal status of the ABM Treaty, Senator Ashcroft
    indicated that the hearing record would be left open so that additional
    material may be supplied. We would like to add this letter, and the two
    attached documents, to the record at this time. The first document is a
    certification, issued by President Clinton on February 9, 1999, along
    with its accompanying report, which has been transmitted to the House
    and Senate Appropriations Committees. The second document is a
    transcript of a statement made by the then-General Counsel of the Arms
    Control and Disarmament Agency, Mary Elizabeth Hoinkes, on February 18,
    1999, at a forum in Washington on the ABM Treaty sponsored by the
    Center for National Security Law of the University of Virginia School
    of Law.
        The Senate Foreign Relations Committee may be left with the
    impression from the May 25th hearing that the ABM Treaty is in force
    today because the Executive Branch has consistently taken the position
    that Russia is an ABM Treaty party. Not only is this incorrect as a
    matter of law--the ABM treaty was automatically extinguished when the
    Soviet Union dissolved in 1991--but the attached documents reveal that
    it has, in fact, been the consistent practice of the United States,
    since the collapse of the Soviet Union in 1991, to avoid recognizing
    any of the former Soviet republics, including the Russian Federation,
    as ABM Treaty parties until the formal conclusion of a succession
    arrangement. The documents also reveal that, in the view of the United
    States, there is no ABM Treaty relationship with any foreign state at
    this time.
        An assertion that Russia is an ABM Treaty party presupposes that
    Russia's claim to ABM Treaty succession is qualitatively different from
    those of other states also claiming succession rights. The attached
    documents also make it clear that it has been the consistent practice
    of the United States since 1991 to treat all such claims from the newly
    independent states on an equal footing. The United States has not
    viewed Russia's claim to ABM Treaty succession as one of separate or
    special legal status, nor could it do so.
        In fact, as the President himself recognized in his November 21,
    1997, letter to Representative Benjamin Gilman, Chairman of the House
    Foreign Affairs Committee, Russia could never be the sole ABM Treaty
    successor to the Soviet Union. Not only is Russia not a continuation of
    the Soviet Union's international legal personality, but, as the
    President suggested, Russia alone is incapable of fulfilling the Soviet
    Union's ABM Treaty obligations. However, even if there was a legitimate
    claim that Russia, by itself, could fulfill the obligations of the
    Soviet Union under the AMB Treaty, the attached documents make it clear
    that such a claim would not be consistent with the diplomatic record.
    The diplomatic record reveals that the United States has never
    recognized Russia as party to the ABM Treaty, and this is fully
    consistent with the ``official'' statements of the Executive Branch
    contained in the Department of State's authoritative listing of United
    States treaty obligations, Treaties-in-Force. This document indicates
    that the status of the Soviet Union's bilateral treaties with the
    United States, including the ABM Treaty, is under study, and does not
    list the ABM Treaty as a Treaty between the United States and the
    Russian Federation.
        Finally, we would like briefly to respond to statements by
    Professor Glennon at the close of the May 25th hearing, suggesting that
    domestic ``contract'' law does not control the status of the ABM
    Treaty. This is, of course, correct. However, as we pointed out in our
    Memorandum of Law for the Heritage Foundation, treaties have long been
    recognized as a form of contract between states, and the international
    law rules governing the disappearance of a state party to a bilateral
    treaty are, in all important respects, the same as those governing the
    disappearance of a party to a contract under domestic law. Cf Terlinden
    v. Ames, 184 U.S. 270 (1902). Under these rules, the ABM Treaty was
    discharged by operation of law at the time the Soviet Union dissolved.
    Today, neither the United States, nor any of the former Soviet
    republics, are parties to, or bound by, the ABM Treaty. Under American
    constitutional law, this treaty relationship can be restored only
    through the ratification of a new treaty instrument, which can be
    accomplished only by and with the advice and consent of the United
    States Senate.
        We thank you for the opportunity to appear before the Committee on
    May 25th, and hope that you find these further materials appropriate
    for inclusion in the record of that hearing.
                Sincerely,
                                           David B. Rivkin, Jr.
                                                   Lee A. Casey
        Enclosures.

                                THE WHITE HOUSE

    Office of the Press Secretary--For Immediate Release--February 10, 1999

     text of a letter from the president to the chairmen of the senate and
                       house committees on appropriations

                                February 9, 1999

        Dear Mr. Chairman:
        In accordance with section 625 of the Departments of Commerce,
    Justice, and State, the Judiciary, and Related Agencies Appropriations
    Act, 1999 (as contained in the Omnibus Consolidated and Emergency
    Supplemental Appropriations Act, 1999, Public Law 105-277) (the
    ``Act''), I hereby certify and affirm that the United States Government
    is not implementing the Memorandum of Understanding Relating to the
    Treaty Between the United States of America and the Union of Soviet
    Socialist Republics on the Limitation of Anti-Ballistic Missile Systems
    of May 26, 1972 (the ``MOU''), entered into in New York on September
    26, 1972.
        Attached is a report to the Congress on the MOU submitted pursuant
    to section 625 of the Act.
                Sincerely,
                                             William J. Clinton

    2report to congress on the memorandum of understanding relating to the
      treaty between the united states of america and the union of soviet
    socialist republics on the limitation of anti-ballistic missile systems
                                of may 26, 1972
    Authority
        Section 625 of the Departments of Commerce, Justice, and State the
    Judiciary, and Related Agencies Appropriations Act, 1999 (as contained
    in the Omnibus Consolidated and Emergency Supplemental Appropriations
    Act, 1999, P.L. 105-277) provides that:
        Beginning 60 days from the date of enactment of this Act, none of
    the funds appropriated or otherwise made available by this Act may be
    made available for the participation by delegates of the United States
    to the Standing Consultative Commission unless the President certifies
    and so reports to the Committees on Appropriations that the United
    States Government is not implementing the Memorandum of Understanding
    Relating to the Treaty Between the United States of America and the
    Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
    Missile Systems of May 26, 1972, entered into in New York on September
    26, 1997, by the United States, Russia, Kazakhstan, Belarus, and
    Ukraine, or until the Senate provides its advice and consent to the
    Memorandum of Understanding.
    Presidential Certification
        The President certifies and affirms that the United States
    Government is not implementing the Memorandum of Understanding Relating
    to the Treaty Between the United States of America and the Union of
    Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
    Systems of May 26, 1972, hereinafter referred to as the MOU.
        The MOU will not be implemented until it enters into force. This
    requires that all signatory states deposit instruments of ratification
    or approval with the United States. Only after the Senate gives its
    advice and consent will the United States deposit its own instrument of
    ratification.
    Background
        In 1992, Belarus, Kazakhstan, Russia, and Ukraine (along with a
    number of other former Soviet states) declared themselves to be
    successor states to the USSR for purposes of the ABM Treaty and
    declared their intention to comply with its provisions. Since then,
    representatives of Belarus, Kazakhstan, Russia, and Ukraine have
    participated with the United States in the deliberations and
    negotiations in the Standing Consultative Commission (SCC). (The SCC
    was established under the ABM Treaty for consultation on matters
    affecting the object and purpose of the Treaty, and to promote
    implementation of its objectives and provisions, and to maintain its
    viability and effectiveness.) The purpose of these multilateral
    discussions in the framework of the SCC was to ensure a full, common
    understanding of the rights and obligations of the USSR under the
    Treaty, and to record agreement as to the terms and conditions under
    which the USSR Successor States would assume those rights and
    obligations.
        The outcome of these negotiations was the MOU that was signed in
    New York on September 26, 1997, by the United States Secretary of State
    and the Foreign Ministers of Belarus, Kazakhstan, Russia, and Ukraine.
    The MOU provides for the recognition of the four latter states as USSR
    Successor States for purposes of the ABM Treaty and establishes that
    upon its entry into force the Parties to the ABM treaty shall be the
    United States, Belarus, Kazakhstan, Russia, and Ukraine. The MOU
    provides that its entry into force shall occur on the date when the
    goverments of all the signatory states have deposited instruments of
    ratification or approval with the United States. To date, none of the
    signatory states has deposited such an instrument.
        Along with the signing of the MOU on September 26, 1972,
    representatives of the five states signed: the First and Second Agreed
    Statements, which help clarify the difference between ABM (i.e.,
    strategic) and theater ballistic missile defenses; an Agreement on
    confidence-Building Measures (CBMA); and, new regulations that will
    provide for effective operation of the SCC on a multilateral basis.
    Entry into force of these agreements is linked to that of the MOU;
    thus, none of them can enter into force unless and until the MOU enters
    into force.
    Meaning of Implementation
        None of the activity to date, in the SCC or elsewhere, constitutes
    ``implementation'' of the MOU. Participation in the SCC for the purpose
    of negotiating succession arrangements does not constitute
    ``implementation'' of those succession arrangements. Thus, none of the
    provisions of the MOU, e.g., those establishing the meaning of
    ``national territory'' and prescribing use of the new SCC regulations,
    has been implemented.
        Both before and after the conclusion of the MOU, representatives of
    Belarus, Kazakhstan, Russia, and Ukraine participated in sessions of
    the SCC, because each has asserted a claim to succeed to the rights and
    obligations of the former Soviet Union. That participation, in and of
    itself, does not settle succession to the Treaty. We have made clear
    over the years, with respect to such meetings, that a guiding principle
    in our discussions in the SCC with these states has been that
    participation does not prejudice the final outcome on succession.
    Confirmation of succession, by entry into force of the MOU, still is
    required. However, as a matter of policy, the United States accepted
    the participation of these states in the SCC negotiations on the MOU
    and demarcation agreements, as well as the required Treaty reviews,
    because their participation was necessary to achieve stated policy
    goals and was consistent with preserving the object and purpose of the
    Treaty. It also accorded with the general foreign policy interests of
    the United States.
        However, from the outset, the United States made clear that the
    succession and demarcation agreements could only be concluded and
    brought into force simultaneously as a package, insisting that no
    agreement should take effect prior to ratification and entry into force
    of a succession agreement. The United States successfully negotiated
    appropriate provisions ensuring that entry into force of the two Agreed
    Statements, the CBMA, and the new SCC Regulations that would govern a
    multilateralized body would only occur simultaneously with the entry
    into force of the MOU. The United States also successfully resisted
    proposals to provisionally apply the MOU and SCC Regulations before
    formal approval by the signatory states, as well as any reference to
    these states as ABM Treaty ``Parties'' in other SCC documents prior to
    entry into force.
    Presidential Communications with Congress
        On May 14, 1997, the United States Senate adopted a resolution of
    advice and consent to ratification on the Document Agreed Among the
    States Parties to the Treaty on Conventional Armed Forces in Europe of
    November 19, 1990 (the ``CFE Flank Document). In accordance with that
    resolution, on May 14, 1997, the President certified that:

              In connection with Condition (9), Senate Prerogatives on
            Multilateralization of the ABM Treaty, I will submit to the
            Senate for advice and consent to ratification any international
            agreement (i) that would add one or more countries as States
            Parties to the ABM Treaty, or otherwise convert the ABM Treaty
            from a bilateral treaty to a multilateral treaty; or (ii) that
            would change the geographic scope or coverage of the ABM
            Treaty, or otherwise modify the meaning of the term ``national
            territory'' as used in Article VI and Article IX of the ABM
            Treaty.

        The President has on several occasions reaffirmed his commitment to
    submit the MOU to the Senate for its advice and consent to
    ratification.
    Recent Activities in the SCC
        Pending entry into force of the MOU, Belarus, Kazakhstan, Russia,
    and Ukraine continue to have equities in the ABM Treaty. For example,
    they possess and operate mosy of the ABM Treaty-related facilities of
    the former Soviet Union. Thus, while awaiting ratification of the MOU,
    the United States has continued to include them in the ABM Treaty
    discussions in the SCC. Similarly, the United States met with Belarus,
    Kazakhstan, and Ukraine, as well as with Russia, on START I issues
    prior to its ratification. To fulfill its obligations under the ABM
    Treaty, the United States participated, along with Belarus, Kazakhstan,
    Russia, and Ukraine, in the required two sections of the SCC in 1998
    during which they completed work on details for providing information
    and notifications in accordance with the CBMA. No data has been
    provided, and none will be provided until the CBMA enters into force.
    By their own provisions, neither the CBMA nor the MOU will enter into
    force until both documents enter into force.
        In addition, during the SCC session that ended on October 14, 1998,
    the sides conducted the fifth periodic review of the ABM Treaty, as
    required by Article XIV of the Treaty, and issued a ``Joint Statement
    on the Fifth ABM Treaty Review.'' This communique referred to Belarus,
    Kazakhstan, Russia, and Ukraine as the ``sides participating in the ABM
    Treaty review'' and made no reference to those sides as constituting
    Parties to the ABM Treaty. Moreover, it emphasized the importance of
    the New York agreements signed on September 26, 1997, to the ABM Treaty
    ``upon their entry into force.''
    Conclusion
        The United States Government is not implementing the MOU. It
    remains the policy of this Administration to submit the MOU and the
    First and Second Agreed Statements--along with the START II Protocol--
    to the Senate for its advice and consent to ratification, after the
    Russian Duma approves the START II Treaty.

                                     ______

        In response to the question ``wouldn't the validy of the CFE Flank
    Agreement be called into question if Deputy Secretary Talbott
    negotiated with the Russians alone as a state party to the ABM
    Treaty?'' (referring to the fact that the Senate made submission of any
    ABM succession agreement to the Senate for its approval a condition of
    ratification of the CFE Flank agreement, and the President accepted the
    condition by ratifying the Flank Agreement)

    Hoinkes responded

        I don't think we have to get to that problem. I read with great
    interest the analyses of that issue in incoming letters from Committees
    of the Senate. I think it [the status of the CFE Flank Agreement] is a
    non-problem. We [the Administration] have said we are going to submit
    any succession agreement (or as you've stated and as the condition
    requires, any agreement that deals either with a change in the
    territory covered by, or the parties to, the ABM Treaty) to the Senate,
    for the advice and consent of the Senate, and we will do so. And we
    will not have a treaty relationship with which to deal with others as
    parties, party-to-party, until that issue is finally resolved. So if
    this [the current] succession agreement does not fly, (and since we
    have no formal state party relationship with any of the potential state
    parties at this time) because we have promised to send any succession
    agreement up [to the Senate], absent a succession agreement we do not
    have a firm treaty relationship.

        But you know that's not consistent with what the President is
    saying. The President is saying that Russia is state__________that's
    Russia

        Hoinkes. We have, I think it's fair to say, a difference in the
    interpretation that is possible to draw from the two separate letters
    that have been sent, I think it's two, it may have been three . . .

        Senator Ashcroft. I appreciate your willingness to push
    through this, and I hope that you will accommodate me in my
    effort to run to the Senate floor to cast a vote and then come
    back, because, if I am not mistaken, we might have contrary
    views expressed. And a good exchange would be, I think,
    probably even better than what we have done so far.
        So with your indulgence, I will recess this hearing until
    10 minutes after 3. That gives me 12 minutes to make it over
    and back. And I intend to be equally out of breath when I
    reappear.
        [Recess at 2:58 p.m.]
        [Reconvened at 3:21 p.m.]
        Senator Ashcroft. I am pleased to be able to reconvene this
    hearing. There is an old military command, I think, that says,
    ``As you were.'' We were fortunate enough to get two votes out
    of the way, and we should be relatively unimpeded for a while.
    So I thank you for your patience.
        As I recall, Mr. Rivkin, you had completed your----
        Mr. Rivkin. Yes, I have.
        Senator Ashcroft. If you unduly truncated them I would
    welcome you to add----
        Mr. Rivkin. Thank you, Mr. Chairman, but no, I am quite
    done. In fact, I believe it would be nice to have an
    opportunity to----
        Senator Ashcroft. Yes, that is good. Good.
        It is my understanding that Mr. Casey is also here as a
    resource for questions afterwards. And so I am pleased now to
    call upon Professor Glennon and ask him to present his
    testimony at this time.
        Professor Glennon.

     STATEMENT OF PROFESSOR MICHAEL J. GLENNON, PROFESSOR AT LAW,
                THE UNIVERSITY OF CALIFORNIA, DAVIS, CA

        Professor Glennon. Thank you, Mr. Chairman. With your
    permission, I will give you a quick summary of the testimony
    and ask that it be entered in the record in its entirety.
        Senator Ashcroft. Well, we would be very pleased to
    accommodate any written statements you wish to make or that you
    have already presented and make it a part of the record. And
    the committee is grateful for your work. It is clear to me that
    the endeavor of assembling these complex documents is not
    without effort. And we are the beneficiaries of your efforts.
    Thank you.
        Professor Glennon. Well, Mr. Chairman, thank you for
    inviting me to be present today. It is a privilege to appear
    again before this committee. I have been asked to address two
    issues, one, whether the ABM Treaty is currently in force, and
    second, whether the ABM Treaty will continue in force, if the
    Senate rejects the MOU on succession.
        My answer to each of those questions is yes. The debate
    thus far, Mr. Chairman, has focused on international law, and
    specifically the issue of state succession, the concrete
    question being whether, under principles of state succession,
    Russia is a successor to the rights and duties of the Soviet
    Union under the ABM Treaty. If it is, of course, the ABM Treaty
    continues to exist.
        With respect, Mr. Chairman, I would suggest that this is
    the wrong question, at least at the outset. It is the wrong
    question because the President has purported to answer this
    question. The President has said that he regards Russia as a
    successor state to the Soviet Union with respect to the ABM
    Treaty and that the ABM Treaty is, therefore, in effect. The
    question, therefore, at the outset is a constitutional
    question, not an international law question.
        The question is: Has the President acted within the scope
    of his constitutional authority? My answer to that question is
    that he has. The Constitution, as you know, divides the treaty
    power between the President and the Senate. There has been much
    debate over where that line is drawn in issues such as treaty
    interpretation, treaty termination, and now identification of a
    successor state to a treaty.
        It is basic black letter constitutional law, Mr. Chairman,
    that in situations such as this constitutional custom--practice
    between the Congress and the executive branch--provides a gloss
    on the constitutional text and is an appropriate source of
    authority in resolving ambiguities in that text.
        Turning, therefore, to practice, one finds that since
    virtually day one, since the earliest days of the Republic, the
    President--not the Congress, not the Senate--the President has
    determined whether a given state is a successor state to a
    treaty to which the United States is a party. I have been
    unable to find any instance in which either the Congress or the
    Senate sought to overturn the President's judgment on this
    issue of state succession.
        The principle again is clear, Mr. Chairman. When, over a
    substantial period of time, the Congress acquiesces to a claim
    of executive power, the President in the first instance, at
    least, has the authority to exercise that power. And with
    respect to state succession, I suggest to you again it has been
    done probably hundreds of times without challenge from either
    the Congress or the Senate since the beginning of the Republic.
        Now I turn, therefore, to the posture of the Congress.
    Under the applicable constitutional framework, the President's
    powers are at his lowest when he acts in the face of
    congressional objection. The President's powers are at his
    highest when he acts pursuant to explicit or implicit
    congressional authorization. And when the President acts in the
    face of congressional silence, things are pretty much up in the
    air, and the answer is a function not of abstract rules of law
    but of, as Justice Jackson said, contemporary political
    imponderables.
        The question that we confront, therefore, is applying this
    framework to the current facts. Has Congress approved,
    disapproved or been silent with respect to the determination of
    the President that Russia is a successor state to the ABM
    Treaty and that the ABM Treaty is in force? The answer is, Mr.
    Chairman, that clearly Congress and the Senate have concurred
    in the President's judgment that Russia is a successor state
    and that the ABM Treaty is therefore in force.
        In 1994, as you know, Congress enacted a statute insisting
    that any substantive modification of the ABM Treaty be
    submitted to the Senate for its advice and consent. In 1997,
    the Senate insisted in a condition to the CFE Flank Document
    that any multilateralization of the ABM Treaty be submitted to
    the Senate for its advice and consent.
        The question obviously arises: Why would Congress, why
    would the Senate, insist upon inclusion in the process of
    modifying the ABM Treaty if either Congress or the Senate
    believed that the ABM Treaty is not in effect? The reasonable
    inference to be drawn, Mr. Chairman, both from the 1994 statute
    and the 1997 condition added to the CFE Flank Document is not
    that Congress is silent, surely not that Congress or the Senate
    objects to the President's determination, but rather that
    Congress and the Senate agree with the President that the ABM
    Treaty is indeed in effect.
        Now, let me turn briefly to questions of international law.
    The issue arises whether there is a basis in international law
    for the President's determination that the ABM Treaty is in
    effect and that Russia is a party to it. And I would suggest to
    you that there clearly is a basis for the President's
    determination.
        The law of states succession is a complicated and muddled
    matter. It has been debated heatedly for many years, and there
    are competing versions of most of the rules in question. The
    most widely accepted formulation of the applicable principle of
    state succession, Mr. Chairman, is the formulation given by the
    American Law Institute in the Restatement Third on Foreign
    Relations Law. That formulation is set out in section 210,
    paragraph 3, of the Restatement (Third).
        To summarize it briefly, it applies a simple test. It says
    that the joint intent of the parties controls. The Restatement
    says, in other words, if Russia and the United States both
    believe that the treaty is in effect, if Russia and the United
    States both believe that Russia is a party to the treaty, that
    joint intent controls, the treaty exists, and Russia is a
    party.
        What has been the posture of the United States? Well, I
    refer your attention, Mr. Chairman, to the January 29, 1992
    joint press conference at which President Boris Yeltsin and
    Secretary of State James Baker each addressed this issue. Here
    are the words, Mr. Chairman, of President Boris Yeltsin, spoken
    again only 1 month after the dissolution of the Soviet Union:
    ``Russia regards itself as the legal successor to the USSR in
    the field of responsibility for fulfilling international
    obligations. We confirm all obligations under bilateral and
    multilateral agreement to the field of arms limitations and
    disarmament, which were signed by the Soviet Union and are in
    effect at present.''
        Secretary of State James Baker, speaking obviously for the
    Bush administration, said virtually the same thing. He said,
    ``I made the point to President Yeltsin that the United States
    remains committed to the ABM Treaty. We expect the States of
    the commonwealth to abide by all the international treaties and
    obligations that were entered into by the former Soviet Union,
    including the ABM Treaty.''
        So given that the test applied by international law, Mr.
    Chairman, is the joint intent of the parties; given that the
    intent of the Bush administration--reiterated many times, as
    you know, by the Clinton administration--given that the intent
    of President Yeltsin, reiterated also many times, as you know,
    by the Russian Government, is that Russia is a party to the ABM
    Treaty--it is clear that under international law the ABM Treaty
    is in force, Russia is a party to that treaty.
        Now I do not want to get into the remaining international
    law issues in any detail. It is argued, as you have heard, that
    the treaty is void because of an impossibility of performance,
    because of changed circumstances, because continuation of the
    treaty in force violates domestic law. I would simply point out
    to you that if you look at each of those doctrines in
    international law closely, you will find that indeed a treaty
    is not void if it meets the test of those doctrines, it is
    voidable.
        No entity within the United States, not the President, not
    the Senate, not the Congress, has taken the affirmative step
    necessary in international law to void the treaty. I repeat,
    neither the Congress, nor the Senate, nor the President has
    acted to make this treaty, if it is voidable, to be in fact
    void in international law.
        So my conclusion, Mr. Chairman, is, with respect to this
    first issue, that the ABM Treaty is in force and that Russia is
    a party.
        Now the second question that you have asked me to address I
    can address far more briefly--that is, whether the ABM Treaty
    would cease to be in effect if the Senate were to take up and
    reject the MOU on succession. The answer to this question is
    that of course the treaty would continue in effect, if the MOU
    on succession is rejected.
        To put the constitutional doctrine succinctly, Mr.
    Chairman, the rule is, you cannot repeal something with
    nothing. You cannot, in effect, try to make legislative history
    in connection with a statute that is never enacted or a treaty
    that is never ratified and argue later that that legislative
    history has effectively terminated an existing statute or
    treaty.
        And the suggestion that you can do that, with all due
    respect is voodoo jurisprudence. It is clear under the Chadha
    case that if you want to repeal a statute, you have to involve
    the President in the process. The President has to be permitted
    to exercise his veto or to sign the statute. And if he is
    excluded from the process, what is done cannot have the force
    and effect of law.
        Similar principles apply with respect to treaties. To have
    effect, a treaty has to be presented to the President,
    obviously, and the President has got to deposit the instrument
    of ratification. That is the only time that a treaty can have
    the force and effect of law.
        So in short, Mr. Chairman, there are ways that the Congress
    and the Senate can end the ABM Treaty, if it wants to do that.
    But rejecting the MOU on succession is not one of them.
        I would be glad to answer your questions.
        [The prepared statement of Professor Glennon follows:]

               Prepared Statement of Professor Michael J. Glennon

        Thank you for inviting me to be here today. You have asked me to
    address two questions: whether the ABM Treaty is still in force, and,
    if it is, whether that Treaty will remain in force if the Senate
    rejects the ABM Memorandum of Understanding on Succession.
        To each question, my answer is yes.
        The initial and most important issue concerns the body of law by
    which the matter is to be resolved. Two bodies of law address different
    aspects of these questions: international law, and domestic
    constitutional law. International legal principles address issues of
    state succession--questions concerning the circumstances under which a
    state succeeds to the treaty rights and obligations undertaken by
    another, earlier state. Constitutional principles address the
    allocation of decision-making power within the government of the United
    States--questions concerning the power of the President to determine
    the identity of a successor state and to decide whether treaty
    relations exist with that state as ``law of the land.''
        Constitutional principles, in turn, fall into two categories
    plenary and concurrent. If the presidential power in question is
    plenary, constitutionally it may be exercised exclusively by the
    President, and neither the Congress nor the Senate may by law or treaty
    overrule it. If the presidential power is concurrent, on the other
    hand, it is shared with Congress or the Senate; if the President acts
    first, his action controls, but often his initial policy can be
    modified or countermanded. As I will explain, I believe that the
    constitutional questions raised with respect to the status of the ABM
    Treaty fall into this latter category, the realm in which power is
    concurrent rather than plenary.
        Most of the debate thus far has involved the application of
    international law. The issue has been cast as a question of state
    succession. The question that has been posed is whether one, or some,
    or none, of the 15 states that occupy territory of the former Soviet
    Union is a party to the ABM Treaty. If none of those states is a party,
    obviously the ABM Treaty is no longer in force.
        I believe that this is the wrong question, at least the wrong
    question to be addressed at the outset. The reason is that the
    Executive has already purported to answer the question whether Russia
    is a party to the ABM Treaty. The answer given by the Executive is that
    Russia is a party and that the ABM Treaty is therefore still in effect.
    (This answer has been given, moreover, in the face of explicit
    affirmation by both Congress and the Senate that the ARM Treaty is in
    force, which I will discuss shortly.) Given the implicit claim of the
    Executive that it has constitutional power to answer the question,
    therefore, the threshold question before the Congress is not an
    international law issue concerning state succession. Rather, the issue
    is whether the President has constitutional power to determine in the
    first instance whether there exists a successor state to a treaty.
        I believe that he does, although I reject the argument that the
    President has plenary power to act in this matter. Power is shared
    between the President and Congress, and Congress can, in fact, have the
    last word if it so desires. Absent a desire of Congress to express its
    will, however, the President's determination would control, as it would
    a fortiori if the Congress concurred in the President's determination.
        To elaborate: Nothing in the constitutional text, case law, custom,
    Framers' intent or institutional structure suggests that the President
    is possessed of plenary constitutional power to determine whether a
    given state is a successor state to a treaty with the United States.
    There is no reason, in other words, to believe that the Executive
    Branch has exclusive power to determine for the United States whether
    there exists a successor state to a treaty. The Executive Branch has
    contended that the power exercised here is an incident of the
    President's exclusive recognition power. But that argument stretches
    the recognition power beyond the traditional practice by which the
    Executive has simply identified, and acknowledged the existence of, a
    particular state or government for diplomatic purposes. In the face of
    timely congressional objection, the President's determination would not
    control.
        In the face of congressional silence, however, the result would be
    different. The legal status of the President's determination is a
    function of the posture of the Congress. If Congress approves his
    determination, the President's power will be at its highest. If
    Congress disapproves, the President's power will be at its lowest. If
    Congress says nothing, the matter will remain relegated to a ``zone of
    twilight,'' a realm in which the answer derives less from abstract
    rules of law than from the interplay of political forces. Then, if
    there was a basis in international law for the President's
    determination that Russia is a successor state to the ABM Treaty, that
    determination would control, albeit only provisionally: Congress could
    enact a contrary law, or, perhaps, the Senate could make a contrary
    declaration in conditioning its consent to some other treaty.
        This is the stage in the analysis at which international law
    becomes pertinent. The issue is whether international law provides
    support for the President's conclusion that Russia is a successor state
    to the ABM Treaty. Clearly it does. The most widely accepted summary of
    applicable international legal principles concerning state succession
    is set out by the American Law Institute (ALI) in its Restatement
    (Third) on the Foreign Relations Law of the United States. The ALI
    drafted the Restatement with particular attention to the understanding
    and practice of the United States in international law. The ALI
    emphasizes that both treaty partners must agree to or acquiesce in the
    new agreement. Section 210(3) of the Restatement provides as follows:

              When part of a state becomes a new state, the new state does
            not succeed to the international agreements to which the
            predecessor state was party, unless expressly or by
            implication, it accepts such agreements and the other party or
            parties thereto agree or acquiesce.

        The Restatement thus provides that a new state can be presumed to
    be bound to a treaty of a predecessor state if two conditions have been
    met: (1) the new state--in this case, Russia--must agree to be bound;
    and (2) the relevant treaty partner--here, the United States--must
    itself agree to, or acquiesee in, the new relationship.
        Both conditions are met. Russia agreed to be bound by the ABM
    Treaty. On December 8, 1991, Russia signed the initial charter of the
    Commonwealth of Independent States--the so-called ``Minsk Accords''--
    with Belarus and Ukraine, agreeing therein to ``discharge the
    international obligations incumbent on them under treaties and
    agreements entered into by the former Union of Soviet Socialist
    Republics.'' On December 21, 1991, Russia signed the Alma Ata
    Declaration, committing itself to ``the discharge of the international
    obligations deriving from treaties and agreements concluded by the
    former Union of the Soviet Socialist Republics.'' On January 13, 1992,
    the Ministry of Foreign Affairs of the Russian Federation transmitted a
    note to the U.S. State Department indicating that ``[t]he Russian
    Federation continues to perform the rights and fulfill the obligations
    following from the international agreements signed by the Union of the
    Soviet Socialist Republics,'' and adding that ``the Ministry kindly
    requests that the Russian Federation be considered as the Party in all
    international treaties in force in place of the USSR.'' Two weeks
    later, on January 29, 1992, Russian President Boris Yeltsin said the
    following:

              Russia regards itself as the legal successor to the USSR in
            the field of responsibility for fulfilling international
            obligations. We confirm all obligations under bilateral and
            multilateral agreements to the field of arms limitations and
            disarmament which were signed by the Soviet Union and are in
            effect at present.

    The Commonwealth States joined in the following declaration on October
    9, 1992, again reaffirming the continuity of relations with the United
    States under the ABM Treaty:

              The member States of the Commonwealth of Independent States
            as successor states of the USSR will fulfill the terms of the
            Treaty Between the USSR and the USA on the Limitation of Anti-
            Ballistic Missile Defense Systems of 26 May, 1972, as it
            applies to their territories and in consideration of the
            national interests of each will conclude, as necessary,
            corresponding agreements among themselves for fulfilling the
            obligations of the Treaty.

    There is, therefore, no question that Russia considers itself a party
    to the ABM Treaty.
        The United States has, similarly, agreed to the relationship. Only
    a month after the dissolution of the Soviet Union, the Bush
    Administration explicitly affirmed that the United States regarded
    Russia as a successor to the Soviet Union's rights and obligations
    under the ABM Treaty. At a joint press conference on January 29, 1992,
    following a meeting with President Yeltsin, Secretary of State James
    Baker stated as follows:

              I made the point to President Yeltsin that the United States
            remains committed to the ABM Treaty. . . . [W]e expect the
            states of the Commonwealth to abide by all of the international
            treaties and obligations that were entered into by the former
            Soviet Union, including the ABM Treaty.

    The Legal Adviser to the State Department during the Bush
    Administration, Edwin D. Williamson, reaffirmed the U.S. view that
    Russia became a successor state to the Treaty. ``As an operating
    principle,'' he has written, ``agreements between the United States and
    the USSR that were in force at the time of the dissolution of the
    Soviet Union have been presumed to continue in force with respect to
    the former republics.'' The Clinton Administration has similarly viewed
    the United States as a partner with Russia in the ABM Treaty. President
    Clinton, in a November 21, 1997 letter to Rep. Benjamin A. Gilman, said
    that the ``ABM Treaty itself would clearly remain in force'' even if
    the Senate did not approve the ABM Memorandum of Understanding on
    Succession. In a May 21, 1998 letter to Chairman Helms, the President
    wrote that ``the United States and Russia clearly are parties to the
    Treaty.'' He continued:

              Each has reaffirmed its intention to be bound by the Treaty;
            each has actively participated in every phase of the
            implementation of the Treaty, including the work of the SCC;
            and each has on its territory extensive ABM Treaty-related
            assets.

    The Executive continues to regard the Treaty as in force. On December
    17, 1998 President Clinton wrote Senator Paul Coverdell that ``there is
    no question that the ABM Treaty has continued in force following the
    dissolution of the Soviet Union.'' Secretary of State Madeleine
    Albright testified before the House International Relations Committee
    on February 25, 1999 that ``we have maintained, along with many, many
    Americans and many members of Congress. that the ABM Treaty is central
    to our strategic posture. And we have supported the ABM Treaty, and
    we'll continue to do so.'' National Security Adviser Samuel Berger said
    the next day that ``We believe very deeply in the ABM Treaty. We
    believe it is a stabilizing treaty between the United States and now,
    Russia.''
        Thus there simply is no question that both Russia and the United
    States continue to regard the ABM Treaty as fully in force. Under
    international law, as summarized by the American Law Institute's
    Restatement, their joint intent suffices to establish Russia as a
    successor state.\1\
    ---------------------------------------------------------------------------
        \1\ This same conclusion obtains under other leading formulations
    of state succession principles, although no such formulation has
    commanded the widespread acceptance of the Restatement. The much-
    criticized 1978 Vienna Convention on Succession of States in Respect of
    Treaties, for example, has not been approved by the Senate. Article 34
    of the Convention sets forth a version of the ``continuity rule,''
    which is applicable when a part or parts of the territory of a State,
    such as the USSR, separates to form one or more States, such as Russia.
    It provides as follows:

          When a part or parts of the territory of a State separate
          to form one or more States . . . any treaty in force at the
          date of the succession of States in respect of the entire
          territory of the predecessor State continues in force in
    ---------------------------------------------------------------------------
          respect of each successor State so formed. . . .

    Under the Convention, however, a state is not bound if ``it appears
    from the treaty or is otherwise established that the application of the
    treaty in respect of the successor State would be incompatible with the
    object and purpose of the treaty.'' Art. 34(2)(b). This exception would
    not apply with respect to the ABM Treaty because Russia, as noted, has
    rejected this notion. Like the Restatement, therefore, the Vienna
    Convention would also provide a basis in international law for the
    President's finding that Russia is a successor state to the rights and
    obligations of the Soviet Union under the ABM Treaty.
        It is worth noting that, under international law, official
    statements such as these have legal consequences beyond and apart from
    the operation of state succession principles. In holding the government
    of France bound by certain statements of French officials (concerning
    atmospheric tests of nuclear weapons), the International Court of
    Justice said the following:

              [France] was bound to assume that other States might take
            note of these statements and rely on their being effective. The
            validity of these statements and their legal consequences must
            be considered within the general framework of the security of
            international intercourse, and the confidence and trust which
            are so essential in the relations among States. It is from the
            actual substance of these statements, and from the
            circumstances attending their making, that the legal
            implications of the unilateral act must be deduced. The objects
            of these statements are clear and they were addressed to the
            international community as a whole, and the Court holds that
            they constitute an undertaking possessing legal effect. Nuclear
            Tests Case (Australia v. France), 1974 I.C.J. 253.

    For the same reasons, it would appear that both the Russian and
    American statements announcing continued adherence to the ABM Treaty
    constitute binding undertakings in international law.
        Several other arguments are made that, under international law, the
    ABM Treaty is invalid. These arguments contend that, even if Russia was
    at some point a party to the Treaty, the Treaty is now null and void.
    It is argued, for example, that the President's failure to seek Senate
    advice and consent for continuation of the ABM Treaty with Russia is
    grounds for viewing the Treaty as void in international law. Another
    argument is made that a fundamental change of circumstances has
    rendered the Treaty void. Finally, it is contended that an
    impossibility of performance has invalidated the Treaty.
        It is not necessary to consider the substantive doctrines on which
    these arguments rest. Even if their tests were met with respect to the
    ABM Treaty, the Treaty would remain in force because each such doctrine
    requires that that the state invoking a treaty's invalidity take an
    affirmative step to terminate or withdraw from such a treaty. Under
    widely accepted principles of international law, in other words, an
    international agreement is voidable--not void, but voidable--if such
    circumstances arise. No one, of course, has taken any step toward
    voiding the Treaty. The President has not voided it. The Congress has
    not voided it. The Senate has not voided it. To the contrary, as I will
    discuss in a moment, the President, the Congress, and the Senate all
    have proclaimed that the Treaty is in force. Under none of these
    international law doctrines, therefore, can the Treaty be found to be
    void.
        To the contrary, the doctrine of international law that continues
    to have overriding relevance with respect to the ABM Treaty is pacta
    sunt servanda. This doctrine has been called the glue that holds the
    international legal system together. Under this doctrine, every treaty
    in force is binding upon the parties to it and must be performed in
    good faith. The ABM Treaty, as a treaty in force, is thus binding upon
    the United States and must be performed in good faith. That is the
    unmistakable requirement of international law.
        There is, accordingly, clearly a basis in international law for the
    President's conclusion that the Treaty continues in force and that
    Russia is a party. This returns us, therefore, to the constitutional
    issue concerning the allocation of decision-making power. As I
    indicated earlier, the power exercised by the President to identify a
    successor treaty partner is properly regarded as concurrent. The
    conclusion that that power is shared by the political branches derives
    from the Constitution's text, and also from two centuries of custom
    that has added a gloss to that text. The constitutional text gives both
    the President and the Senate a role in the making of treaties. The
    practice in the United States since the earliest days of the Republic
    has been that the President acts initially to determine the identity of
    the successor. In upholding the Iran claims settlement agreement in
    Dames & Moore v. Regan, 453 U.S. 654 (1981). the U.S. Supreme Court
    quoted Justice Frankfurter's observation in the Steel Seizure Case
    concerning the effect of such practice. ``[A] systematic, unbroken,
    executive practice, long pursued to the knowledge of the Congress and
    never before questioned . . . may be treated as a gloss on `Executive
    Power' vested in the President by sec. 1 of Art. II.'' 343 U.S. 579
    (1952). This practice argues strongly that the President has concurrent
    power to identify successor treaty partners.
        There is, however, no custom here which would suggest that the
    President necessarily prevails in the face of congressional or Senate
    opposition. Presidential disputes over such matters with the Congress
    or the Senate simply have been too rare to justify reliance upon custom
    as a source of plenary presidential power. The most analogous issue is
    perhaps treaty termination. When the issue of power to terminate
    treaties arose in connection with the mutual security treaty with the
    Republic of China, this Committee asserted--correctly, I believe--that
    the Senate has the constitutional power to insist that it be included
    in the termination process. It argued, in other words, that the power
    to terminate treaties is concurrent, not plenary. By the same token,
    the Congress, or the Senate, can constitutionally insist upon its
    inclusion in the process of identifying a successor state or states to
    a treaty.
        This means that, in principle, Congress could constitutionally have
    enacted a statute overturning the President's determination that Russia
    has succeeded to the rights and obligations of the Soviet Union under
    the ABM Treaty. The Senate could have conditioned its consent to the
    ABM Treaty with a requirement that the Senate approve any presidential
    identification of successor states to that Treaty. Had it done so, I
    believe that the President would be bound by that condition.
        But neither Congress nor the Senate has objected to the President's
    determination. In fact, Congress and the Senate have not been silent
    during this period. Congress and the Senate have concurred in the
    President's judgment that the ABM Treaty remains in force. As you are
    aware, in 1994 the Congress enacted section 232 of P.L. 103-337, which,
    inter alia, provided in subsection (a) thereof that the United States
    ``shall not be bound by any international agreement entered into by the
    President that would substantively modify the ABM Treaty unless the
    agreement is entered pursuant to the treaty making power of the
    President under the Constitution.'' Of course, it would have made no
    sense to prohibit the President from modifying an agreement that did
    not exist; the Congress must have believed the ABM Treaty to be in
    effect in 1996, or there would have been no reason to seek to limit
    presidential power to amend it. Similarly, in approving the Flank
    Document Agreement to the CFE Treaty, the Senate again in 1997
    concurred that the ABM Treaty was in full force and effect. It added a
    condition to its resolution of ratification requiring that the
    President

            certify to the Senate that he will submit for Senate advice and
            consent to ratification any international agreement:

              i. that would add one or more countries as state parties to
            the ABM Treaty, or otherwise convert the ABM Treaty from a
            bilateral treaty to a multilateral treaty; or
              ii. that would change the geographic scope or coverage of the
            ABM Treaty, or otherwise modify the meaning of the term
            ``national security'' as used in Article VI and Article IX of
            the ABM Treaty.

    Again, the question arises: Why would the Senate seek to ensure its
    inclusion in efforts to amend the ABM Treaty if it believed that the
    Treaty was not in force? The reasonable inference to be drawn from both
    such measures is not that Congress and the Senate disagree with the
    President's judgment that the ABM Treaty remains in effect, or even
    that they have remained silent on the issue, but rather that both agree
    that the Treaty is indeed in force. ``When the President acts pursuant
    to an express or implied authorization of Congress,'' Justice Jackson
    wrote in his famous concurring opinion in the Steel Seizure Case, 343
    U.S. 579 (1952), ``his authority is at its maximum, for it includes all
    that he possesses in his own right plus all that Congress can delegate.
    In these circumstances, and in these only, may he be said (for what it
    may be worth) to personify the federal sovereignty.''
        In concluding my discussion of this first question, whether the ABM
    Treaty is still in force, I call the Committee's attention to the words
    of then-Justice Rehnquist, speaking for the Supreme Court in Dames &
    Moore v. Regan, 453 U.S. 654 (1981). As you know, the Court in that
    case unanimously upheld the executive agreement entered into by
    President Carter to settle conflicting claims with Iran. The Court said
    the following, using words that seem directly applicable to this issue:

            [We] cannot ignore the general tenor of Congress' legislation
            in this area in trying to determine whether the President is
            acting alone or at least with the acceptance of Congress.
            [Congress] cannot anticipate and legislate with regard to every
            possible action the President may find it necessary to take or
            every possible situation in which he might act. Such failure of
            Congress specifically to delegate authority does not,
            ``especially . . . in the areas of foreign policy and national
            security,'' imply ``congressional disapproval'' of action taken
            by the Executive. On the contrary, the enactment of legislation
            closely related to the question of the President's authority in
            a particular case which evinces legislative intent to accord
            the President broad discretion may be considered to ``invite''
            ``measures on independent presidential responsibility.''
            Youngstown (Jackson, J., concurring). At least this is so where
            there is no contrary indication of legislative intent and when,
            as here, there is a history of congressional acquiescence in
            conduct of the sort engaged in by the President.

        The second question that you have asked me to address is an easier
    one. namely, whether the ABM Treaty will remain in force if the Senate
    rejects the ABM Memorandum of Understanding on Succession. Clearly it
    will. The ABM Treaty is now in force. Congress can cause the ABM Treaty
    not to be in force by directing the President to terminate the Treaty.
    Whether such presidential action would place the United States in
    breach of the Treaty is a different and complicated question, which I
    do not here address.\2\ Under INS v. Chadha, 462 U.S. 919 (1983),
    however, Congress can do so only through the enactment of a measure
    that is presented to the President for his signature or veto, i.e., a
    joint resolution or bill. Neither Congress nor the Senate can terminate
    a law, or (in its domestic effect) a treaty, by expressing
    ``legislative intent'' during the consideration of another measure,
    such as the ABM Memorandum of Understanding on Succession, that is not
    presented to the President. It is legally irrelevant whether the
    adoption of the ABM Memorandum of Understanding on Succession is viewed
    by some members of Congress as necessary for the continuation in force
    of the ABM Treaty. Obviously, the President does not share that view,
    or he would not regard the ABM Treaty as currently in force.
    ---------------------------------------------------------------------------
        \2\ Three issues would arise. First, is termination consistent with
    the provisions of Article XV of the Treaty? That Article permits each
    party to withdraw ``if it decides that extraordinary events related to
    the subject matter of this Treaty have jeopardized its supreme
    interests.'' If this condition is met, the Treaty would not be breached
    by U.S. withdrawal.
        Second, if the condition set out in Article XV were not met, would
    international law otherwise permit withdrawal? Under various
    international legal doctrines, discussed earlier, a treaty is voidable
    under specific circumstances. Whether such circumstances have actually
    arisen is a question that would require careful analysis of the facts
    as well as the particular doctrine in question.
        Third, is transmittal of the notice of termination timely? The
    Soviet Union dissolved on December 25, 1991--more than seven years ago.
    During that period, the President, Congress, and the Senate failed to
    object. Under the laches doctrine, undue delay in asserting a right or
    claiming a privilege causes the right or privilege to be extinguished.
    In international law, this principle goes by various names, including
    extinctive prescription, acquiescence, and estoppel. Whatever the
    label, analogous substantive principles clearly are part of customary
    international law, as the International Court of Justice held in the
    Temple of Preah Vihear Case in 1962. The Court there considered a claim
    made by the government of Siam (now Thailand) concerning the location
    of the border with Thailand. In rejecting the claim, the Court said the
    following:

          [Siam] has, for fifty years, enjoyed such benefits as the
          Treaty of 1904 conferred on her . . . France. and through
          her Cambodia, relied on Thailand's [conduct]. . . . It is
          not now open to Thailand, while continuing to claim and
          enjoy the benefits of the settlement, to deny that she was
    ---------------------------------------------------------------------------
          ever a consenting party to it. 1962 I.C.J. 6.

    These same principles counsel against viewing voidability options as
    surviving ad infinitum in international law. At some point, states'
    interest in stable and predictable treaty relations come to outweigh
    their interest in complete procedural regularity in the making of
    treaties. Seven years may be a reasonable period in which to expect the
    United States to have objected.
        The President's view is not, however, dispositive. If the Congress
    wishes to have the last word, it can--even if the consequence is to
    place the United States in violation of international law. Nothing in
    the Constitution prohibits Congress from requiring that the President
    act in a manner that would make the United States a law violator in the
    international system. The Constitution requires simply that if Congress
    wishes to express its will, it do so in the manner prescribed by
    Article I, section 7 of the Constitution, the ``Presentment Clause.''
    This, the Supreme Court has held, means that Congress must accord the
    President the opportunity to participate in the process--by veto, if he
    wishes--subject to the possibility of congressional override.
        Similar principles apply to ending a treaty as law of the land
    through use of the treaty power. A treaty in force, such as the ABM
    Treaty, can of course be superceded domestically through ratification
    of a second treaty that is inconsistent with the earlier treaty. If the
    second treaty is not ratified, however, either because the Senate
    declines to give its advice and consent or because the President
    declines to deposit the instrument of ratification, nothing exists to
    supercede the prior treaty. To reiterate, statements made during the
    consideration of a measure that is never enacted or ratified cannot
    have the effect of ending an earlier statute or treaty. Even if the
    Senate were to adopt a resolution expressly purporting to govern the
    interpretation of an existing treaty, the Supreme Court has told us,
    that resolution would be without effect. Fourteen Diamond Rings v.
    United States, 183 U.S. 176 (1901).
        Accordingly, if Congress or the Senate wishes to end the ABM
    Treaty, the way to do that is to enact a law or to approve a treaty
    that explicitly or implicitly does so.
        I conclude, therefore, that the ABM Treaty is in force and that the
    Treaty will remain in force even if the Senate rejects the ABM
    Memorandum of Understanding on Succession.
        I would be happy to answer any questions.

        Senator Ashcroft. There are a lot of questions. I just do
    not know where to start.
        Professor Glennon, what happened to the ABM Treaty when the
    President decided that Russia was a succeeding party to the
    treaty?
        Professor Glennon. The treaty continued in force, Mr.
    Chairman.
        Senator Ashcroft. It continued. Did the President announce
    that at the same time that there was an announcement that the
    Soviet Union had ceased to exist, that it was extinct as
    declared by all the parties?
        Professor Glennon. Well, the Soviet Union was dismembered
    on December 19, 1991. Secretary of State James Baker, the next
    month, on January 29, 1992, announced that the ABM Treaty----
        Senator Ashcroft. I was interested in that. First of all,
    it was interesting to me that you say that the President has
    the authority to do it, and then you rely on a statement by
    James Baker. You said you are assuming that he was speaking for
    the President, when he said so. And it may be that we could
    assume that.
        But if the principle exists that the USSR was extinguished
    and extinct, is it your view that there is a limbo for treaties
    that intervenes between the time of the extinction of a country
    and then a time of revival, that it is sort of like the prince
    coming and knocking the apple out of Snow White's mouth, and
    the treaty springs back to life? If all the successor states to
    the USSR declared the USSR extinct, what is the status of the
    treaty? Is this purgatory, or what is the intermediate
    standing?
        What was it during that month after the USSR collapsed but
    before Secretary Baker made that comment?
        Professor Glennon. Well, clearly, if President Bush had
    determined that he wished at that point to terminate American
    participation in the ABM Treaty regime, he could have done
    that. And had Secretary Baker announced that the United States
    no longer considered itself bound by the ABM Treaty at that
    point, this test of joint intent of the parties would not be
    met. The ABM Treaty would indeed have terminated at that point.
        Senator Ashcroft. The joint intent test is interesting to
    me, because the intent to enter a treaty has to be both by the
    President and the Congress. The intent of the American people
    to enter into treaties always involves two branches of
    government.
        Why are we to assume that you can have intent expressed
    only by one branch of government in this setting and not by two
    branches of government as when you create a treaty?
        Professor Glennon. Well, Mr. Chairman, as I indicated, in
    1994 and in 1997 Congress and the Senate both expressed their
    intent with respect to this issue. And they concurred with the
    President that the ABM Treaty is in force.
        Senator Ashcroft. Well, I think that is a very interesting
    argument. And I can understand--I think it is worthy of being
    made. I think it is also possible for Congress to say, look, if
    there is a treaty, if you are going to act as if there is,
    these are the conditions we want to demand. For Congress to
    make such statements does not necessarily mean that the
    Congress has acceded to the proposition that a treaty exists.
        It looks to me as if there are other folks out here ready
    to do what we had hoped might happen and have a discussion of
    this. I do not know which of you wants to go first. I see both
    of you indicating that you do. So we will go in the inverse
    order that we went previously.
        Mr. Rivkin.
        Mr. Rivkin. Thank you very much, Mr. Chairman. And perhaps
    we can separate the legal issue of whether or not the joint
    intent test accurately describes the norms of constitutional
    and international law from sort of a factual predicate. What I
    would briefly like to address is a factual predicate, with all
    due respect to my colleague, Professor Glennon.
        I think the record of both the Russian behavior and
    American behavior is not at all what it seems to be. No. 1, who
    speaks for the state and how those expressions are made.
    Statements by secretaries of state and presidents are
    important, but their official actions, taken through official
    channels, are truly dispositive.
        The thing that puzzles me is Treaties in Force, the
    official publication by the State Department, still lists the
    Soviet Union as the entity. You in your own statement went
    through numerous permutations of executive branch position. By
    the way, to set the record straight, what was said by President
    Bush and Secretary Baker is, ``We are going to look carefully
    on a case-by-case basis, utilizing presumptive continuity model
    at different arms control treaty.''
        We had the President saying one thing--and again, in the
    interest of time, I will--it is all in the record--the
    President saying one thing in a letter to Congressman Gilman in
    1997 and another thing in 1998. The thing that one sort of--the
    last fact here, which is very interesting to me, as recently as
    February 10 of this year, the President, in transferring the
    certification to the House and Senate Appropriations Committee,
    had a report to the President that says that there are no
    treaties, no foreign states, that are ``parties to the
    treaty.'' I mean that to me does not at all amount to this
    clear certitude that Professor Glennon expressed.
        Senator Ashcroft. Are you conceding that if there had been
    a clear, unequivocal statement 1 month after the disintegration
    and extinction of the Soviet Union, is it your view that that
    would have somehow revived the treaty relationship?
        Mr. Rivkin. No. Very briefly, no. This is a legal issue.
    But one obvious limitation in the President's ability or
    ability of both sides to reviving it by invoking the intent is
    very simple.
        If the resulting treaty is dramatically at variance with a
    bargain that was originally entered into and approved by the
    Senate exercising its advise and consent function, then clearly
    the President can do that. And again, I would direct your
    attention to all the debates that took place back in the
    eighties.
        Battlebroad vs. Narral, where a number of your colleagues
    were expressing the view that a slight alteration in the
    interpretation of three words in the treaty incites violence to
    very esteemable, you know, prerogatives of the Senate, that it
    was not the same bargain. Here we are talking about obvious
    limitations on the President's ability to revive a treaty. If
    you agreed originally to A, B and C, the way it is revived, it
    is only A and B. That cuts you out of a process.
        Senator Ashcroft. Professor Glennon, let me just read a
    statement. ``Neither a simple recognition of Russia as the sole
    ABM successor, which would have ignored several former Soviet
    States with significant ABM interests, nor a simple recognition
    of all CIS States as full ABM successors''--I believe that is
    CIS. Maybe it is NIS States--``would have preserved fully the
    original purpose and substance of the treaty as approved by the
    Senate in 1972.''
        That is a statement of the President of the United States.
    Do you agree with him that neither of these simple recognitions
    could have served the purposes of the treaty and therefore
    would each alone have been an insufficient basis upon which to
    continue the treaty?
        Professor Glennon. Well, Mr. Chairman, I think that the
    President's statement has to be taken in context. I am aware
    that he did write that to a Member of Congress. He also,
    however, on May 21, 1998, wrote to Chairman Helms of this
    committee as follows, referring to the United States and
    Russia, ``Each has reaffirmed its intention to be bound by the
    treaty. Each has actively participated in every phase of the
    implementation of the treaty, including the work of the SCC,
    and each has on its territory extensive ABM Treaty-related
    assets.''
        He went on to write Senator Coverdell on December 17,
    1998----
        Senator Ashcroft. Now, in that respect he is just saying
    what has happened. He did not say what the effect of it was.
        Professor Glennon. Well, he says in the letter to Senator
    Coverdell what the effect of it was. ``There is no question
    that the ABM Treaty has continued in force following the
    dissolution of the Soviet Union.''
        So President Clinton takes precisely the same position that
    President Bush took. There is no ambiguity in the executive's
    position.
        Senator Ashcroft. President Bush took a very ambiguous
    position when he said he is going to look at these on a case-
    by-case basis.
        Professor Glennon. Well, evidently, Senator, Secretary of
    State Baker, reviewing the ABM Treaty on a case-by-case basis,
    came to the conclusion that it was still in force.
        Senator Ashcroft. Well, I think that is so. I mean, he may
    well have. I guess--how do you know? You are relying on
    statements by people in the administration, whether that is a
    Presidential statement that commits the Nation and provides the
    agreement of the entire Nation, like it or not.
        Professor Glennon. I would like to respond to that, if I
    may, Senator.
        Senator Ashcroft. Sure. I would like to have you do that.
        Professor Glennon. There is in my testimony a case that I
    cite on page five from the International Court of Justice that
    addresses precisely that point. The case is the famous Nuclear
    Tests Case between Australia and France decided in 1974. The
    issue was very much the one that we have before us here today.
        The French foreign ministry, officials of the foreign
    ministry, made statements to the effect that France would no
    longer detonate nuclear devices in the South Pacific. France
    changed its mind and announced that it, contrary to what was
    said, intended to recommence nuclear detonations in the South
    Pacific.
        New Zealand and Australia went to the International Court
    of Justice and said, ``Hey, the French foreign minister and his
    colleagues said they were not going to do this.'' The
    International Court of Justice said, ``France is bound by those
    statements. And Australia and New Zealand were right to rely
    upon them.
        I think probably that is the same principle applies----
        Senator Ashcroft. Does that mean the Secretary of State
    could bind us to treaties by just making pronouncements, and we
    would be bound later in some international court, contrary to
    the need of the Senate to ratify the treaty? It seems to me--I
    wonder about the appropriateness of saying that since a court
    in the international arena bound the French because their
    officials made statements, whether that means that the U.S.
    Senate no longer would have an appropriate role in fashioning
    U.S. treaty commitments. That is a somewhat distressing
    position, if that is your position.
        Professor Glennon. Well, my position is that if there is
    nothing in the Constitution and nothing in international law
    that says that the Secretary of State is acting beyond the
    scope of his authority in making the statement that he does,
    that statement is binding.
        Senator Ashcroft. Well, there is something in an obscure
    part of the Constitution which has been disregarded suggests
    that authority not explicitly given to officials in the
    Constitution is not theirs. I mean, there are implied powers, I
    am sure. But even states are reserved all the authority not
    explicitly given. They were until the 10th amendment was so
    eroded.
        I do not find it very difficult to believe that
    administrations would like to operate on the basis of the idea
    that they have the capacity to extend treaties and to adjust
    things and, frankly, to do so with good intentions and in the
    national interest. But I find difficulty in the detail.
        What happens in these intervals? Who has the authority? How
    does it have to be expressed? Can it be expressed merely by a
    Secretary of State, and at what time? When Congress expresses
    reservations about the existence of a treaty, how can the
    administration say that the treaty does not exist because
    Congress talked about it?
        What is the status of a treaty when both Congress and the
    President have different views on its useability and
    applicability to the United States?
        Does the treaty responsibility require agreement on the
    part of the Senate and the President? We get back to that
    fundamental question.
        So I am going to try and do this. I am going to try and
    make sure you all have the last word. So I apologize for giving
    as many myself. But, Mr. Feith, I believe it is, wanted to
    speak earlier. And now I will call upon him.
        Mr. Feith. Thank you, Mr. Chairman. It is true that the
    meeting occurred between Boris Yeltsin and Secretary Baker and
    that the Russian President expressed the willingness of Russia
    to step into the shoes of the Soviet Union under the ABM
    Treaty. And I do not disagree that the United States could, on
    the basis of that statement, have entered into an agreement
    with Russia that had the same essential terms as the ABM Treaty
    and made the agreement with Russia, taking Yeltsin up on his
    statement, ``I am happy to assume the rights and duties of the
    Soviet Union under the ABM Treaty.''
        There is nothing in international law or domestic law that
    prevents the United States from making such an agreement with
    Russia. But, under the U.S. constitutional principles, if we
    are going to do that, it has to be submitted to the Senate for
    advice and consent. So it is not that I disagree with the
    thrust of Professor Glennon's point that we could have made
    that agreement, but we have our Constitution that tells us what
    the process is required for making that agreement.
        And on the question of whether there have been hundreds of
    cases where the President has exercised his recognition
    authority, of course there have been hundreds of cases where
    the President has exercised recognition authority. And nobody
    disputes that the President has recognition authority under the
    Constitution.
        The essential point, though, is there is an international
    legal doctrine that has existed, as we pointed out, for about
    250 years and is essentially unchallenged, which provides that
    treaties lapse, bilateral treaties lapse, when one of the two
    parties becomes extinct.
        And the fundamental question is: If a treaty has lapsed--
    and I believe this is what you, Senator, were getting at--if
    the treaty has lapsed, then it is not in purgatory or limbo or
    in some state from which it can be revived. If it lapsed, it is
    dead. Scholars have pointed out there is no resurrection in
    international law.
        If a new agreement is going to come into being----
        Senator Ashcroft. Well, that is the fundamental point. I
    think Professor Glennon says that it--he uses the terms that
    are consistent with contractual law, that there is a difference
    between a voidable agreement and a void agreement.
        A voidable agreement is one that is in full force and
    effect, but one of the parties has a right--and it could be
    that both parties, perhaps, but I doubt if it is really a
    contract, if both parties do. At least one of the parties has a
    right to set the whole thing aside.
        Now, is it your view that the doctrine of international law
    provides that it is not voidable, that it is nonexistent upon
    extinction?
        Mr. Feith. Yes, that is precisely the point. And the
    authorities are clear on that point. Professor Glennon was, I
    believe, correct in citing a number of doctrines of
    international law that permit governments to treat treaties as
    voidable at their option. Those exist, and that is correct. It
    is just not the doctrine of international law that we were
    talking about.
        The doctrine of international law that we have called
    attention to and that goes back to Vattel and has been cited by
    U.S. authorities and many other authorities throughout the
    centuries does not create a voidable contract. It states that
    the treaties lapse. They become void when one of the two
    parties becomes extinct.
        And it happens, and this is the essential point, it happens
    by operation of law. In other words, the voiding of the treaty
    does not await the affirmative decision, action, announcement
    of the other party. So again, Professor Glennon is correct that
    the U.S. Government has never announced that the ABM Treaty
    lapsed.
        Our point is that under this well-established doctrine of
    international law, it does not have to do so, precisely because
    this doctrine makes it clear that upon the extinction of one of
    the parties, the treaty becomes void and is not merely
    voidable.
        Senator Ashcroft. I want to go back to Professor Glennon,
    who wants to--have you finished?
        Mr. Feith. I would like to, if I may, make one additional
    point in answer to something that Professor Glennon, which is
    this issue of congressional acquiescence, because he made a
    major point of the significance of the several congressional
    actions that suggest that Members of Congress believe that the
    ABM Treaty is in effect, and therefore somehow that supports
    the conclusion that the ABM Treaty is in effect.
        It is established in U.S. constitutional law that there is
    no principle of estoppel for Congress. And there is no ``gotcha
    principle'' that if Members of Congress, even in legislation,
    make a factual misstatement, that they are somehow bound by
    even a factual misstatement. And it is not the case, I believe,
    that anything that was said in any of the legislations cited by
    Professor Glennon or any other legislation that we are aware of
    regarding the ABM Treaty, even those statements that suggest
    that Congress may have believed that the ABM Treaty may be
    still in effect, none of that could be reasonably construed as
    authorizing the President to bring such a treaty into effect,
    if it had lapsed. And so it cannot be taken as consent to bring
    a new treaty into effect.
        Senator Ashcroft. I do not think Professor Glennon means to
    say that if Congress for a long enough period of time acts like
    there is a treaty, that a treaty that was nonexistent is
    revived. I do not think that is his point. If he would ever
    agree with you that a treaty did not exist--but he does make
    this argument that somehow there is a treaty susceptible to
    resuscitation.
        I am going to go back to him now, because he is probably
    tired of me putting his arguments in my words, which cast it
    less favorably than he would choose to cast it.
        Professor Glennon. Actually, I agree with a number of your
    words, Mr. Chairman. Let me make four points, beginning with
    your earlier question concerning the power of Congress to
    declare that the treaty is extinct.
        Clearly, Congress can, I think, enact a statute directing
    the President to terminate the ABM Treaty. Clearly, the Senate
    could have included itself in the termination process by adding
    a condition to the resolution of ratification to the ABM Treaty
    in 1972, when it approved the ABM Treaty. That is the debate
    that we had when I was legal counsel to this committee in 1979
    on termination of the treaty with the ROC, the Mutual Security
    Treaty that was at issue in Goldwater against Carter.
        And this committee accurately, I think, took the position
    that if the Senate wanted to include itself in the termination
    process, it can do that. But it has to say that. It had not
    done that with respect to the ROC Treaty.
        A very similar principle is at issue with respect to the
    ABM Treaty. I think that if it had added a condition to the ABM
    Treaty saying that, in the event an issue of state succession
    arises at some point down the pike, we, the Senate, would like
    to be included in the process of determining the identity of
    the successor state is, the Senate could have done that. But it
    did not. That is point one.
        Second, it is not accurate to state that Boris Yeltsin, on
    December 29, 1992, simply indicated the willingness of Russia
    to be a successor to the Soviet's rights and obligations under
    the ABM Treaty. He said, ``Russia regards itself as the legal
    successor to the Soviet Union with respect to that treaty.''
        Senator Ashcroft. How can he regard himself as a successor
    to the obligations when some of the obligations require the
    maintenance of conduct and the satisfaction of conditions
    beyond the limits and boundaries of his territory?
        Professor Glennon. Well, the question is, why should the
    United States acquiesce in his assertion that Russia continues
    to be a successor to the treaty? And my answer is, if Secretary
    Baker and President Bush did not wish the United States to
    continue as a party to the treaty under those circumstances, as
    I said, they had every right under international and
    constitutional law at that point to say the United States is
    out of this treaty. They did not do that. They said the
    opposite. And the Senate acquiesced in that.
        Senator Ashcroft. Let me just ask this question, and see if
    I can refine this just a minute, because I find this to be very
    interesting. What if they had said nothing? What if we had had
    silence for the last 8 years?
        Professor Glennon. As a matter of international law or
    constitutional law, Mr. Chairman?
        Senator Ashcroft. Yes. I mean, I am asking these questions
    in good faith. You may think I--when I get to reading the
    questions the staff has prepared, that is when I am trying to
    pin you down. I am just trying to get educated now.
        Professor Glennon. The issue of silence arises in
    connection with the question that was just posed concerning the
    United States' ability to opt out of a treaty that was not sent
    to the Senate for its advice and consent. And the question that
    was posed is this: Suppose the Secretary of State goes abroad
    and makes statements in an exchange of statements with a
    foreign leader that clearly constitute a treaty, that
    constitutionally ought to be submitted to the Senate for its
    advice and consent.
        Is that binding constitutionally? Is that binding in
    international law? That is where the question of silence
    becomes pertinent. And that is where the question of voidness
    versus voidability becomes pertinent.
        And let me read, Mr. Chairman, if I may----
        Senator Ashcroft. Well, I really want you to have a chance
    to fairly explain what you are talking about.
        Professor Glennon. I appreciate that, and you have given me
    that.
        Senator Ashcroft. Please correct me, if I do not give you
    that chance.
        Professor Glennon. The applicable international law
    doctrine is set out in article 46 of the Vienna Convention on
    the Law of Treaties. It deals with precisely this hypothetical
    that I just discussed. And it says, ``In these circumstances,
    if a law of fundamental importance of a state is violated''--I
    think the treaty clause is a law of fundamental importance--if
    that violation is manifest, a ``state may not invoke the fact
    that its consent to be bound was expressed in violation of that
    principle of fundamental importance, unless the violation is
    manifest.'' That is the principle of voidability. That is where
    your question about silence is answered.
        International law----
        Senator Ashcroft. Well, is the United States a party to the
    Vienna Convention? It is my understanding we are not a party to
    that.
        Professor Glennon. We are not, Mr. Chairman, but article
    46, of course, is widely accepted as codifying preexisting
    customary international law.
        Senator Ashcroft. Go ahead.
        Professor Glennon. And I would finally indicate, with
    respect to the question concerning estoppel, of course the
    Senate is not estopped, of course Congress is not estopped,
    from saying today that it was wrong in 1994, that it was wrong
    or it has changed its mind from 1997, and it no longer views
    the United States as a party to the ABM Treaty.
        My point in referring you to this piece of legislation and
    the condition to the CFE Flank Document was simply to point out
    that the President is acting consistent with congressional
    concurrence--and that under Justice Jackson's steel seizure
    analysis, his power is therefore at its highest. Congress can
    always change its mind. It has not done that.
        Senator Ashcroft. Mr. Rivkin, I think it is your turn, and
    then it will be Mr. Feith's turn. And then I get a turn.
        Mr. Rivkin. You are most gracious, Mr. Chairman.
        In the interest of time, I will not go through a lengthy
    recitation of facts. Suffice it to say that just as is the case
    with our record, the Russian record is much more ambiguous than
    Professor Glennon describes. And we go for a number of pages in
    our legal memorandum looking at what the Soviet Union, post-
    Soviet States stated in Alma Ata, and what they said in Minsk
    and what they said in Bishkek.
        Most importantly, the Russian record is much more ambiguous
    than a simple recitation of a statement by President Yeltsin
    would reveal. One thing I just wanted to focus on--and again,
    there are many disagreements Professor Glennon and I may have
    about how far a President's recognition power and power to deal
    with state succession would stretch. But I would just pose a
    very simple proposition, which we have not discussed yet.
        I think it is manifestly clear that in circumstances not
    involving state succession, just involving treaty
    interpretation, the President cannot, under the guise of
    interpretation, come up with a different treaty. And again, I
    am basically reminding everybody how this issue was dealt with
    during the debate over broad versus narrow of the ABM Treaty.
        It is clear to me that even if the President is operating
    in the context of recognizing a new successor state, he still
    cannot come up, utilizing his recognition power, with a very
    different treaty bargain. I would challenge anybody to look at
    the totality of the bargain which President Nixon has entered
    into in 1972 with advice and consent by the Senate, looking--
    and again, in the interest of time, I would not go into
    details--looking at articles 26, et cetera, et cetera, dealing
    with the issue of radars, and explain how is it possible for
    Russia to deliver, Mr. Chairman, the totality of the bargain
    that the Senate had endorsed in 1972.
        And clearly, the context of a Presidential action is
    irrelevant, if what you are getting is not the treaty that you
    agreed to. We bargained for an opportunity to strike at the
    heart of the Soviet Union.
        We bargained for the specific arrangements relating to
    early warning radars. We bargained for many other things, none
    of which can be fully delivered by Russia today. It is not the
    same treaty. It may be a good treaty, but it is not the same
    treaty.
        And again, I would challenge anybody to explain to me how
    the treaty with Russia is going to give the United States the
    strategic benefits and the specific legal benefits the Senate
    sought and agreed to acquiesce in 1972. Thank you.
        Senator Ashcroft. Mr. Feith, I indicated that I would call
    on you. And if you choose to yield to Mr. Miron----
        Mr. Feith. Mr. Miron.
        Senator Ashcroft. Miron. And pardon me for mispronouncing
    your name earlier.
        Mr. Miron. No problem. Mr. Chairman, I want to focus on one
    point, perhaps because I am more of a common lawyer and less of
    an international lawyer than the rest of my colleagues here.
    And that is on the question of void versus voidable. And I want
    to start with a treaty, that is the Vienna Convention on
    Treaties. I think it is a misdescription of it to say that the
    only way you get out of a treaty is by asserting that you have
    the right to have it voided. That is the voidable category.
        There are some clearly distinct and listed grounds for
    asserting that a treaty should be avoided: fraud, undue
    influence, just as though they were in any--they were in the
    common law of Texas or Missouri or anywhere else. But nothing
    in that treaty says that a treaty which does not exist has to
    be denounced in accordance with that notice procedure for
    voidability. It is not a treaty anymore.
        To that extent, a void treaty is like a void contract, a
    contract for the sale of a child. I mean, there are a lot of
    examples in common law that nobody has to go into court to get
    a declaration of voidness about, because it is void on its
    face. And therefore, I think repairing to that treaty, which,
    as you rightly point out, we are not a party in any event, does
    not give us any aid in analyzing what happened to the ABM
    Treaty in 1991.
        And with respect to the point about whether the Vienna
    Convention itself, even though the United States is not a
    party, it is a treaty for principles which are widely accepted,
    there is nothing in that treaty which in any way adopts a rule
    that an extinct state can be resurrected in no way, shape or
    form. There is nothing in the treaty that deals with that
    subject at all.
        And the only thing that deals with that subject in any
    elaborate way are the several hundred years of scholarly works
    and the positions of major United States executives in the
    latter part of the 19th century. And all of them say that when
    a treaty is extinct--I am sorry--when a State is extinct, its
    treaties fall to the ground.
        It is as simple as that. Nothing that anybody else can do
    can revive it.
        Thank you.
        Senator Ashcroft. I think Professor Glennon wants to make
    some more remarks.
        Professsor Glennon. Thanks, Mr. Chairman. I will be brief.
        First, I agree that if a treaty does not exist, action
    cannot and need not be taken to void it. The ABM Treaty,
    however, exists.
        Second, with respect to the suggestion that the Vienna
    Convention on the Law of Treaties is irrelevant to this
    discussion, one, it is by its terms irrelevant to principles of
    state succession. Two, however, a number of issues have been
    raised which do not relate to principles of state succession.
        The question of supervening impossibility of performance,
    which was raised a moment ago, is, for example, dealt with in
    article 61 to the treaty. The question of fundamental change of
    circumstances, which is raised in the Heritage Foundation's
    memorandum, is dealt with in article 62 to the treaty.
        The question of invoking invalidity by virtue of a
    violation of a rule of fundamental importance is dealt with in
    article 46 of the treaty. And I would suggest that each of
    those articles, as I indicated in response to your question,
    codifies preexisting customary international law norms.
        Senator Ashcroft. I have a series of questions I do want to
    ask you, but I--when you keep saying it exists, I am fascinated
    by that, because that is a very pragmatic sort of thing that
    says we do not have to decide where it came from or whether it
    existed at any particular time in the past, we will just say
    that it exists now.
        Is it your view that it has always existed since it was
    ratified by the U.S. Senate in 1972 and that it persisted in
    existence after the declared extinction of the Soviet Union and
    prior to its subsequent attempted affirmation of the treaty?
        Professor Glennon. Yes, sir.
        Senator Ashcroft. So you just--when a state no longer
    exists, there is some interval, you are saying, during which
    the treaty persists absent the state, and that it is sort of
    naked in its existence. There is no state which is a party. And
    then later on, those who were in some ways associated with the
    nonexistent state can at some time later come and reconstruct
    the apparatus to which the treaty is appended.
        Professor Glennon. Well, as an abstract question, Mr.
    Chairman, that is----
        Senator Ashcroft. Well, I do not want this to be abstract.
    I tried to get this--we got this down to dates earlier. It was
    about a month before the United States made its statement. I do
    not know how long it was before the Russians made their
    statement. I just think you have to answer that question
    somehow. What happens? Is there a treaty that is sort of
    floating without a party?
        Professor Glennon. Well, as I was about to suggest, Mr.
    Chairman, your question presupposes that there was no party. In
    fact, there was a party. As soon as the Soviet Union ceased to
    exist, Russia commenced. The Federation of Russian States
    traces its existence to the instant that the Soviet Union
    ceased to exist. So there was no floating season or treaty that
    had to be held in abeyance during any period.
        Senator Ashcroft. But it seems to me that the Russian
    Federation preexisted the Soviet Union. So I think there are
    all kinds of ways to talk about continuities there. But it is
    pretty clear to me that the different parties to this agreement
    have been negotiating what they wanted as a successorship, not
    participating in the prior definition of the parties.
        And when you have the idea in the MOU that the United
    States of America, the Republic of Belarus, the Republic of
    Kazakhstan, the Russian Federation and the Ukraine, upon entry
    into force of this memorandum, shall constitute the parties to
    the treaty, you redefine the membership of the treaty in a way
    that previously was not defined.
        I wonder why the United States and Russia are included as
    members here, particularly Russia, if they were already
    members. If this is not a new treaty, why--if these are just
    accessions of Kazakhstan, Ukraine, Belarus, what already
    exists, why would the U.S. and Russia be named in the MOU?
        Professor Glennon. Mr. Chairman, I cannot answer that. But
    I would simply suggest that it does not go to the question
    whether the ABM Treaty exists, for all the reasons that I have
    described.
        Senator Ashcroft. Well, the MOU appears to be an
    international agreement, signed by the Secretary of State. And
    it states that the triggering event for Russian membership in
    the ABM Treaty is the entry into force of the MOU. The
    agreement provides no other mechanism to allow for Russian
    accession to the treaty.
        Do you think that the MOU has come into force? Is it your
    view that the MOU is in force?
        Professor Glennon. Well, my understanding is that it
    cannot, as a matter of domestic law, come into force under
    section 232 or condition 9 to the CFE Flank Document until it
    receives the advice and consent of the Senate. So my answer
    would be that it is not in force.
        Senator Ashcroft. They negotiated the MOU expressing that
    Russian membership was contingent on it. At least that is my
    understanding. And now you say that it is not in force. Those
    two points together indicate that if membership is contingent
    upon something that is not in force, Russia is not a member.
        Professor Glennon. Well, Mr. Chairman, I may need to be
    educated on this, but my understanding is that the MOU has yet
    to be submitted to the Senate for its advice and consent, and
    that until it does receive the Senate's advice and consent and
    is then ratified by the President, it by definition will not be
    in force.
        Senator Ashcroft. Well, that is exactly it. And it appears
    that the administration, in making contingent upon the
    ratification of MOU the membership of Russia in the ABM Treaty,
    is taking an inconsistent position. And I want to know if you
    embrace that inconsistent position or whether you disagree with
    them.
        Professor Glennon. I am sorry, Mr. Chairman. I think I did
    not understand your question initially.
        Senator Ashcroft. That is understandable.
        Professor Glennon. No, and I apologize.
        By including the term ``Russian Federation'' in article I
    of the MOU on succession, I gather that the administration is
    simply repeating the existing state of affairs and reiterating
    the status quo in an effort to make as clear as possible in
    article I of the MOU what the parties to this agreement are. It
    would look a little strange if Russia, being a party to the ABM
    Treaty, were not listed in article I to the MOU.
        So I surely would not infer from this that the
    administration does not regard Russia as a party to the ABM
    Treaty until the MOU is ratified by the Senate. To the
    contrary, I think this is intended probably simply to reflect
    the status quo with respect to Russia.
        Senator Ashcroft. The testimony mentions condition 9 of the
    CFE Flank Agreement. Russia obviously does not comprise the
    same territory as the Soviet Union. If today Russia were the
    other party to the ABM Treaty, would this, in your view,
    necessarily mean that there had been a change in the geographic
    scope or coverage of the ABM Treaty?
        Professor Glennon. Well, that is a difficult question,
    because implicitly, Mr. Chairman, your question is whether
    there are additional successor states, Belarus, Kazakhstan,
    Ukraine, states that also have ABM assets, to the Soviet Union
    under the ABM Treaty. And I must tell you I do not know the
    answer to that. And I think that the administration also would
    respond that it has taken no position with respect to that
    issue.
        Senator Ashcroft. Does it trouble you at all to think that
    we might have a treaty and people cannot name who the parties
    are?
        Professor Glennon. Yes.
        Senator Ashcroft. It is so troublesome to me that I might
    think that it would be a good rule of law that any treaty to
    which you cannot name the parties is not really a treaty.
        Professor Glennon. Well----
        Senator Ashcroft. The identity of the parties being so
    fundamental to a treaty relationship, I am 32 years out of law
    school, and am going back to simple contracts. It seems to me
    that the parties to a contract are important, and for treaties
    it would seem to be equally important. I had earlier tried to
    focus in on this when I mentioned Russia alleging its capacity
    to control extra territorial things.
        Now that is not uncommon these days. NATO has converted
    itself to something that is dealing with extra territorial
    matters. It had once been a defense organization, and now it is
    outside the limits of what it had been designed to defend.
        I appreciate your candor in saying you do not know who the
    members of this treaty are, and you do not know whether or not
    Russia really has a responsibility under the treaty to fulfill
    the terms of the treaty as it relates to territory outside of
    its borders.
        Professor Glennon. Well, Russia surely would not have such
    a responsibility. The question is whether these other states
    would. And I think that is the issue that is up in the air.
        Senator Ashcroft. I would like to follow that up with you.
    This is very interesting to me. Could it be possible that these
    countries have such a responsibility without knowing it. Not
    all these countries have embraced this responsibility. Could it
    be possible that they are living with a responsibility under a
    treaty which they do not understand or know that they are a
    party, and that they have these responsibilities of which they
    are unaware?
        Professor Glennon. Well, Senator, the fact that I am not
    aware whether they are parties to the treaty or, more
    specifically, aware what their intent is with respect to this
    issue does not imply that they themselves are unaware of their
    own intent. They may believe that their intent has been
    unequivocally expressed. And they may indeed be comporting
    themselves in a manner fully consistent with the obligations
    imposed by the ABM Treaty.
        If I might just say, Mr. Chairman, on the broader question
    that you raise, if I may say so, I think you are right to be
    discomforted by this ambiguity. And it would be, it seems to
    me, entirely understandable if the Senate, in view of this
    ambiguity, said: Look, we do not want any longer to be a party
    to a treaty the other parties to which cannot be identified and
    which, on top of it, we view as a bad bargain.
        If the Senate were to come to that conclusion, however, it
    has to do something. It has to join with the House and enact a
    statute and direct the President to terminate the treaty or act
    through the operation of the treaty process to get out of the
    ABM Treaty. And it has not done that.
        Senator Ashcroft. Well, I find rather interesting your
    concession that this would be a discomforting thing, and it is
    hard to imagine a Senate that would want to be a party to a
    treaty that you could not determine who the members were, and
    you could not determine what the territory to be covered was,
    and who had responsibility.
        And yet what you are basically arguing, I think, is that
    when we ratified this treaty in 1972, we implicitly provided
    any administration that succeeded the ability to, with some
    sort of constructive presumption, move us into that position.
    Arguing that the United States is bound by a treaty to which
    parties cannot be identified is a position that is very
    disconcerting. No reasonable person would want to be party to a
    treaty whose membership was not defined or defineable. But you
    are willing to say that is the power that the Congress granted
    to the President and to the administration in 1972 when it
    entered into the ABM Treaty.
        I find some real tension in that, because I think treaties
    ought to be construed in a constitutional fashion. I cannot
    look at the ABM Treaty and reasonably conclude that the
    Congress in 1972 intended, either by the language or
    interpretation therefrom, to authorize the President of the
    United States, and any President thereafter, to change the
    territorial definition of the treaty, to change the membership
    of the treaty, and to do so without obtaining the advice and
    consent of the Senate. I think it carries us right back to
    ground zero in this debate.
        We have gotten to the place where we all admit that we do
    not know who the parties to the ABM Trteaty are. We all admit
    that we do not know what territory the treaty covers. But some
    of us are saying, well, that is alright, because the Congress
    would have agreed, when it provided this ratification in 1972.
        The other argument is no, it is not acceptable to amend a
    treaty without abtaining the advice and consent of the Senate.
    The Senate would not abdicate its responsibility in such a way.
    We would not have done it then. We would not do it now. You do
    not want to be party to a treaty that so directly affects world
    security when you do not know who the members are, what the
    territory is, what the responsibilities are.
        There are ABM radar sites right now outside of Russia. If I
    am not mistaken, it would be virtually impossible for Russia to
    comply with this treaty as the sole other party.
        So I think we find ourselves in a very troubling situation,
    not knowing who the members are, not knowing what the territory
    covered is, not knowing what the responsibilities are, and yet
    persisting in saying this is what the Senate authorized in
    1972.
        Frankly, I have not always respected prior Senates. I have
    sometimes thought that they have made mistakes. But I do not
    think they made that big of a mistake in what they were doing
    with regard to this treaty.
        Now I have to give you another opportunity to speak because
    I told you I would let you speak last. Yes, Mr. Casey.
        Mr. Casey. Mr. Chairman, if I could make one point, you
    mentioned earlier contract law. And in fact, contract law is a
    very good place for us to be, because treaties are in fact
    contracts. And if two parties contract and one party
    disappears, that contract does not become merely voidable, it
    is void. There is in fact no other party to whom you can give
    notice of voidability.
        I mean, if you hire me as your lawyer and the next day I
    die, that contract is over. You do not need to send anybody
    notice saying I no longer want a part of this contract. And
    that is exactly what happened.
        Senator Ashcroft. The question, though, is, if you hire a
    lawyer and he dies the next day, how can you tell?
        Mr. Casey. It would depend on the lawyer.
        Senator Ashcroft. It is so hard to communicate with
    lawyers. Never mind. Sorry.
        Mr. Casey. This is true.
        But the fact is that when a state disappears, there is no
    need to send notice that you no longer consider yourself bound
    by the treaties. Those treaties are discharged by operation of
    law. The doctrines that Professor Glennon refers to do indeed
    exist. There is a real question, though, how they are supposed
    to operate when a state disappears.
        And indeed, there have been instances when, for example,
    during World War II, President Roosevelt's attorney general was
    faced with the question of exactly that. Could we, using the
    International Law Doctrine of rebus stantibus, which is the
    doctrine that Professor Glennon is talking about, to declare a
    particular convention void?
        And the answer is, well, the countries who we were parties
    to that treaty with are now occupied. They no longer have
    independent international legal personality. There is no one to
    send notice to. The treaty is, in fact, just void. There is
    nothing more that needs to be done.
        The only way that the ABM Treaty could still be in force is
    if the Russian Federation constitutes a continuation of the
    international legal personality of the Soviet Union. And it
    does not. There is no way that you can--the President has broad
    discretion in this area, but he cannot be arbitrary.
        And the state that is Boris Yeltsin's Russia is not the
    Russian State that formed the core of the Soviet Union, which
    included at the very minimum Great Russia, the Ukraine, and
    Bela-Russia. That state dissolved. It no longer exists.
        And the treaties that that state was a party to, whether it
    was under the name of the Russian empire or the Soviet Union,
    dissolved along with it.
        Senator Ashcroft. I think this follows up on that, and I
    thank you, Mr. Casey. The President in May 1997 agreed to
    submit to the Senate for advice and consent, and now I am
    quoting, ``any international agreement that would add one or
    more countries as states parties to the ABM Treaty or otherwise
    convert the ABM Treaty from a bilateral treaty to a
    multilateral treaty or that would change the geographic scope
    or coverage of the ABM Treaty or otherwise modify the meaning
    of the term national territory, as used in article 6 and
    article 9 of the ABM Treaty.''
        The President has not submitted agreement to the Senate. I
    find it hard to believe that the administration can allege that
    the treaty is still in force when the geographic scope has been
    changed, the number of the parties has changed, but no
    agreement recognizing these changes has been submitted to the
    Senate.
        Do any of you wish to comment on that?
        Mr. Rivkin. If I may just add a brief point, Mr. Chairman.
    Obviously in full accord with my good colleague, Mr. Casey, I
    just wanted to perhaps emphasize a little bit more sharply one
    proposition.
        I have spent most of my professional career being a strong
    opponent of Presidential powers. It is an ancient debate, as
    you know, Mr. Chairman, which goes back to the Pacificus-
    Helvedius debates. However, what I think is instructive here,
    is that even the strongest possible proponent of Presidential
    prerogatives cannot take the view that the President, in
    exercising his permittable constitutional powers, can act
    arbitrarily.
        So the President has to be bound by the applicable
    doctrines of international law. There may be instances where
    the facts are sort of in a gray zone, and reasonable people can
    disagree.
        But I think few people would argue that the President, in
    exercising admittedly a very formidable power of recognition,
    can recognize the Holy Roman Empire. I believe very few people
    can agree with the proposition that the President, in
    exercising his formidable power to interpret treaties, which
    Congress cannot easily second guess, can interpret the treaty
    in a way that is manifestly absurd.
        So I am not troubled by the need to reconcile the
    President's constitutional prerogatives upon the rule of
    reason. It may be difficult to challenge the President in doing
    that. The case may not be judiciable. But again, to me, the
    voidness and impossibility of performance very much, insofar as
    they are part and parcel of, for example, the continuity
    doctrine, should very much structure the President's conduct.
        Again, the President cannot recognize the Holy Roman Empire
    and say that this is reasonable conduct. It does not exist. And
    the facts, I would argue, may strike you as a bit of an
    exaggeration. But the facts are pretty similar to that here.
        There may be other instances, where, depending on whether
    you are a Presidentialist or somebody who believes Congress
    possesses greater foreign affairs powers, would disagree, but
    not in this instance.
        Thank you.
        Senator Ashcroft. Mr. Feith.
        Mr. Feith. Mr. Chairman----
        Senator Ashcroft. This is the last line, so whatever you
    want to say, say it with some dispatch.
        Mr. Feith. I think I have said virtually everything I
    wanted to say. The one point I would like to make, picking up
    on your last remark, is President Bush said this issue needs to
    be studied. And it is a complex issue. And when the Soviet
    Union broke up, it was quite a shock. And people said, ``We
    need to think this thing through.''
        And in the period when the administration was studying
    these various treaties on a case-by-case basis, Congress a
    number of actions that, as Professor Glennon said, reflected a
    thought that maybe the ABM Treaty remains in force. I think it
    is important to point out that they did that under
    circumstances where the administration said, ``We do not know.
    We are still studying the question.''
        President Clinton came forward initially and said that the
    issue of succession is unsettled and asserted that if the
    Senate rejected the multilateralization MOU, the succession
    issue would simply remain unsettled, President Clinton said.
    And it was when the President was pressed by Members of
    Congress on the proposition that you yourself have emphasized
    this afternoon, which is they do not understand this idea of a
    treaty that is the sound of one hand clapping, a treaty that
    only has one party, a bilateral treaty whose other party has
    died. And they do not understand the concept. How can that be?
        And when President Clinton was pressed after initially
    saying that the issue was unsettled, and then he was told, ``If
    it is really unsettled, and you cannot identify another party,
    then the treaty does not exist in the view of Congress,'' it
    was only then that President Clinton came forward with a
    position that was flatly inconsistent with his earlier
    assertion that Russia alone could not be the successor, if the
    treaty is to fulfill the object and purpose of the agreement,
    as approved by the Senate.
        And what has happened is the administration was put into a
    corner logically. And when it found itself in a corner, it
    simply asserted that Russia is the other party, and the treaty
    remains in effect.
        But nobody from the administration to this day has put
    forward a public statement laying out a theory to justify how
    they can argue that Russia, in the place of the Soviet Union,
    is in the ABM Treaty.
        There is nothing extant from the administration anywhere
    explaining the theory that underlies the President's assertion
    that Russia is the other party and that the treaty remains in
    force.
        And it is important to point out that when President
    Yeltsin said, ``We consider ourselves the successor to the
    Soviet Union for purposes of the ABM Treaty,'' at the very same
    time, a few weeks before, Russia made it absolutely clear,
    explicitly in the Minsk Declaration of December 1991, that
    Russia does not consider itself the continuation of the Soviet
    Union. And in the Minsk Declaration itself, there is a
    statement in article 11, ``From the moment of signature of the
    present agreement,'' which is the agreement to create the
    Commonwealth of Independent States, ``application of the laws
    of third states, including the former Union of Soviet Socialist
    Republics, shall not be permitted in the territories of the
    signatory states.'' Russia was one of the signatories. So
    Russia itself referred to the Soviet Union as a third state.
        And I think it is quite clear that the only logical way to
    read Russia's willingness to consider itself a party to the ABM
    Treaty was that it was an offer. It was an offer to the United
    States: Let us make a new agreement based on the ABM Treaty.
        That is the only reasonable interpretation. The
    administration has every right to make such a new agreement.
    But under the U.S. Constitution it can do so only if it comes
    to you and your colleagues and gets the requisite two-thirds
    approval in the advice and consent process.
        Thank you.
        Senator Ashcroft. Thank you, Mr. Feith and Mr. Miron,
    Rivkin, Casey.
        Professor Glennon, you are going to have basically the
    opportunity to close. I would like to ask you in your closing
    if you would answer this one question: The memorandum of
    understanding on succession includes four states that the
    administration has identified as critical parties to the
    treaty, if the original purpose of the treaty is to be
    fulfilled.
        The administration contends that even if the Senate rejects
    the MOU on succession, that the treaty will still be in force
    and succession issues unresolved.
        Now if the Senate rejects the MOU, which is really the only
    conceivable succession arrangement for the ABM Treaty, will
    that make a clear enough statement of Congress' will that the
    ABM Treaty is no longer in force? Basically, if we reject the
    MOU, would that be a clear statement of Congress? And would you
    consider the treaty not to be in force? I think you may have
    answered that before.
        But would you please take another run at that and then
    close? And then I have a paragraph.
        Professor Glennon. Thanks, Mr. Chairman. Let me, while I
    have a moment, thank you for your fairness in allowing me ample
    time to respond to the many arguments made on the other side.
        Senator Ashcroft. Well, the poor guys over there and me----
        Professor Glennon. I do appreciate that.
        I did address that question that you just put to me very
    briefly in my opening statement. And my answer, once again, to
    put it briefly, is you cannot repeal something with nothing.
    And if the Senate rejects the MOU on state succession, there
    would be no instrument in existence for there to be any
    legislative history to.
        Now, if the MOU or some other treaty were ratified, if that
    treaty were inconsistent with the prior treaty, or if it said
    that it was the intent to supersede that prior treaty, then the
    prior treaty would, of course, give way to the extent that it
    is or was inconsistent. But you cannot, again, without
    ratifying a subsequent treaty, have the effect of supersession
    that some Senators apparently would desire.
        Now with respect to a number of these other arguments that
    have been made, first, I would want to agree with the point
    that has been made that there is, so far as I have seen, no
    theory that the administration has put forth elaborating the
    administration's position on supersession and the principles of
    state succession.
        There is, of course, an opinion of the Assistant Attorney
    General Walter Dellinger that addresses a slice of those
    issues. But by and large, the truth is it has been like trying
    to pull nails to get positions on legal issues from this
    administration. And this is an example of many legal issues
    that have been fairly frustrating for the Senate to deal with.
        Second, I think that with respect to this comment that the
    President made concerning state succession issues being
    unsettled, what the President was referring to was the same
    issue that you were referring to a moment ago, and that is the
    status of the ABM Treaty with respect to Belarus, Kazakhstan
    and Ukraine.
        Clearly, state succession issues are unsettled with respect
    to those three states. That is the reason, as I understand it,
    that the MOU is seen to be necessary by the administration.
        I do not believe, however, that this administration or the
    Bush administration has ever suggested that the status of the
    ABM Treaty with respect to Russia is unsettled. Since the
    earliest days, as I pointed out, the Bush administration took
    the position that the ABM Treaty is in effect and that Russia
    is a party.
        Third, I surely agree that the President could not
    arbitrarily recognize the Holy Roman Empire as a successor
    state to the ABM Treaty. That is not this case. If the point is
    that the President must act with some basis in international
    law, as I pointed out, section 210, paragraph 3, of the
    Restatement, as formulated by the American Law Institute,
    provides all the basis that the President needs to argue that
    he has acted consonant with international law. It is the joint
    intent of Russia and the United States that Russia be regarded
    as a successor state to the treaty.
        Finally, with respect to Mr. Casey's discussion of
    principles of contract law in addressing the issue of voidness
    versus voidability, I would really respond to Mr. Casey with
    all respect that this issue is not governed by American
    contract law. It is governed by international law and
    specifically principles of state succession. The two do not
    always coincide.
        Senator Ashcroft. Well, let me thank you. Let me thank all
    of you. I really have enjoyed this. It is a very serious
    matter. Whenever I enjoy a discussion, I sometimes wonder
    whether I have taken it seriously enough. But I thank each of
    you for the contributions you have made today. And I thank
    Professor Glennon for his contribution he made to this
    committee. He served this committee previously, and he served
    it again today.
        I think the debate on the legal status of the ABM Treaty is
    long overdue. The American people need to be reminded that the
    present administration is intentionally pursing a policy which
    keeps the United States vulnerable to a ballistic missile
    attack. In my view, there is no treaty binding us to follow
    this course of vulnerability.
        The fact that the administration has not declared this
    treaty null and void is a striking example of the defeatist
    policies which have kept our country defenseless for too long.
    George Washington once said, ``If we desire to avoid insult, we
    must be able to repel it.''
        Why are North Korea and Iran pursuing advanced missile
    technology at breakneck speed? These terrorist governments are
    seeking the tools of aggression because they know that we are
    not prepared to repel their attacks, either here or at places
    that are important to our national strategic security
    interests.
        It is my hope that this hearing has made it clear that
    there is no longer a treaty preventing the United States from
    defending itself. As Franklin Roosevelt said in September 1941,
    and I quote, ``Let us not ask ourselves whether the Americas
    should begin to defend themselves after the first attack or the
    fifth attack or the tenth attack or the twentieth attack. The
    time for active defense is now.'' I could not agree more.
        Having thanked you all there appears to be no further
    business and the committee is adjourned.
        The hearing record will remain open until June 2 at 5 p.m.
    I invite any of you to supplement your remarks or to enlighten
    us further, if thoughts come to mind that will help us make
    better decisions or might even change a Senator's mind.
        Thank you very much.
        [Whereupon, at 4:48 p.m., the committee adjourned, to
    reconvene at 10 a.m., May 26, 1999.]

      Supplementary Remarks of Douglas J. Feith and George Miron--Senate
      Foreign Relations Committee Hearing on The Legal Status of the ABM
                                     Treaty

                                  introduction
        At a hearing of the Senate Foreign Relations Committee on May 25,
    1999, Professor Michael Glennon of the University of California--Davis,
    Law School, stated his opinion that ``the ABM Treaty'' is in force and
    that the Russian Federation (``Russia'') and the United States are
    parties. The Legal Status of the ABM Treaty, Testimony of Michael J.
    Glennon before the Committee on Foreign Relations, United States
    Senate, May 25, 1999 [``Glennon Testimony''] at 1. It is not clear from
    his testimony whether he was referring to the ABM Treaty of 1972,
    originally made by the United States and the USSR, or to a new treaty
    between the Russia and the United States regarding ABM--i.e., anti-
    ballistic missile--systems. Parts of his testimony suggest that the ABM
    Treaty of 1972 remains in force and that Russia has simply succeeded to
    the rights and obligations of the USSR thereunder. Other parts suggest
    that Russia and the United States, as a result of statements made in
    January 1 1992 by the Russian President and the U.S. Secretary of
    State--statements in which the U.S. Congress supposedly acquiesced by
    refraining from making a ``timely'' objection--entered into a new ABM
    agreement, presumably with essentially the same terms as the ABM Treaty
    of 1972.
        If Professor Glennon were to argue that the ABM Treaty of 1972, as
    such, remains in force, he would owe an explanation of how that two-
    party Treaty survived the extinction of one of its parties, the USSR.
    As our legal memorandum observes, for more than 200 years, legal
    scholars and government officials have acknowledged the international
    legal rule that bilateral treaties (other than ``dispositive''
    agreements, which dispose permanently and irrevocably of rights to
    specific territories) lapse automatically when one of the two parties
    dissolves. See Douglas J. Feith and George Miron, Memorandum of Law:
    Did the ABM Treaty of 1972 Remain in Force after the USSR Ceased to
    Exist in December 1991, and Did It Become a Treaty Between the United
    States and the Russian Federation 27-58 (May 21, 1999). The scholars
    and officials who have done so come from many States, including the
    United States, and include such eminent figures as Vattel, Halleck and
    O'Connell. No scholar of note, no judicial opinion and no relevant U.S.
    statute contradicts this venerable rule.
        Professor Glennon does not address this rule at all in his
    testimony. He neither acknowledges it nor denies it. He does not make a
    case that it is inapplicable to the ABM Treaty of 1972. He does not
    argue, for example, that that treaty is dispositive. Nor does he argue
    that the USSR's international legal personality has survived.
        Rather, he builds his case that Russia and the United States are
    now parties to ``the ABM Treaty'' on the following points (page
    references are to Glennon Testimony):

              (i) The U.S. President ``has constitutional power to
            determine in the first instance whether there exists a
            successor state to a treaty.'' (Page 2)
              (ii) International law supports the U.S. President's
            ``conclusion that Russia is a successor state to the ABM
            Treaty.'' (Id.)
              (iii) ``[A] new state can be presumed to be bound to a treaty
            of a predecessor state'' if the new state (Russia) agrees to be
            bound and if the other party (the United States) agrees to
            ``the new relationship.'' (Page 3) ``[B]oth treaty partners
            must agree to or acquiesce in the new agreement.'' (Id.)
              (iv) Russia agreed to be bound by the ABM Treaty of 1972--for
            example, in its Foreign Ministry's January 13, 1992 note to the
            U.S. State Department stating that ``the Ministry kindly
            requests that the Russian Federation be considered as the Party
            in all international treaties in force in place of the USSR.''
            (Id.)
              (v) The United States has agreed to that request, as
            evidenced by Secretary of State James Baker's January 29, 1992
            statements (at a joint press conference with Russian President
            Boris Yeltsin) that ``the United States remains committed to
            the ABM Treaty'' and that ``we expect the states of the
            Commonwealth [of Independent States] to abide by all of the
            international treaties and obligations that were entered into
            by the former Soviet Union, including the ABM Treaty.'' (Page
            4)
              (vi) The ``joint intent'' of Russia and the United States
            ``suffices to establish Russia as a successor state'' to the
            ABM Treaty of 1972. (Page 5)
              (vii) The U.S. Congress ``could constitutionally have enacted
            a statute overturning the President's determination that
            Russia'' is the USSR's ABM Treaty successor. (Page 7)
              (viii) There has been no ``timely congressional objection,''
            (page 2) however, and, in fact, ``Congress and the Senate have
            concurred in the President's judgment that the ABM Treaty
            remains in force'' (page 7; emphasis in original), as evidenced
            in a statute and a Senate treaty ratification resolution by
            references that imply a belief that the ABM Treaty of 1972
            remains in force.

        Point (i) begs the key question raised in our testimony to the
    Committee on May 25, 1999, which is not whether the President has
    authority to determine the successor to a treaty, but whether the
    Treaty lapsed by operation of law when the USSR dissolved in December
    1991. If the Treaty lapsed, there can be no successor to that Treaty as
    such, for there is no resurrection in international law, no bringing a
    treaty back from the dead. The surviving party--the United States--can,
    as Professor Glennon notes, agree to make a treaty along the same lines
    as the lapsed Treaty with any State or set of States that arose on the
    territory of the extinct USSR, but such an agreement would constitute a
    new treaty, which under the U.S. Constitution could come into force
    only if two-thirds of the Senate approved ratification.
        Point (iii) implies that Professor Glennon recognizes that the
    U.S.-Russian agreement on which he hinges his argument is a ``new
    agreement'' for a ``new relationship'' and not a continuation of the
    old U.S.-USSR treaty.
        Point (v) is an especially dubious link in Professor Glennon's
    chain of logic. The record, as elaborated upon below, does not support
    the conclusion that Secretary Baker intended his press conference
    comments to create a legally-binding commitment of the United States to
    enter into an ABM Treaty with Russia.
        As to point (viii), Professor Glennon offers no standard for
    determining whether a ``congressional objection'' is timely. Also, he
    ascribes more significance than is justified to the Congressionally
    approved language that implies that the ABM Treaty, notwithstanding the
    USSR's dissolution, remains in force. He asserts that such language
    constitutes ``concurrence'' with the President's judgment. But in what
    proposition exactly is the Congress supposed to have concurred? Nothing
    in that language authorized the President to create new legally-binding
    ABM-related obligations, if and where none now exist. There is no basis
    in U.S. constitutional law for the notion that the Congress now is
    somehow estopped from concluding that the ABM Treaty lapsed when the
    USSR dissolved.

        QUESTION: At a press conference in January 1992 with Boris Yeltsin,
    did Secretary of State James Baker create a legally-binding agreement
    between the United States and Russia on ABM systems?

        A. Professor Michael Glennon's hypothesis as to how the United
    States entered into a legally-binding agreement with the USSR on the
    subject of ABM defense

        Professor Michael Glennon testified that the ABM Treaty of 1972
    became a legally-binding agreement between the United States and Russia
    by the following process: (i) on or shortly before January 29, 1992
    Russian President Yeltsin stated that Russia regarded itself as the
    ``legal successor'' to the USSR's bilateral treaties that were still in
    effect, including arms limitations and disarmament; (ii) Secretary
    Baker expressed the United States response to President Yeltsin as
    follows:

              I made the point to President Yeltsin that the United States
            remains committed to the ABM Treaty . . . [W]e expect the
            States of the commonwealth to abide by all of the international
            treaties and obligations that were entered into by the former
            Soviet Union, including the ABM Treaty.

        Glennon Testimony at 4 (quoting Secretary of State James Baker);
    (iii) according to Professor Glennon, in 1994 the Congress concurred in
    Secretary Baker's statement, by way of Section 232(a) of Pub. L. No.
    103-337, the National Defense Authorization Act for Fiscal Year 1995
    (Note to 10 U.S.C.A. Sec.  2431) as follows:

              The United States shall not be bound by any international
            agreement entered into by the President that would
            substantively modify the ABM treaty unless the agreement is
            entered pursuant to the treaty making power of the President
            under the Constitution.

        Also, Professor Glennon says that the Senate in 1997 independently
    manifested its concurrence by way of Condition 9 to the ratification
    resolution for the CFE Flank Document. For Senate consideration of
    ratification, see 143 Cong. Rec. S4451-01, 1997 WS 250192 (May 14,
    1997). Condition 9 provides that:

              The President shall certify to the Senate that he will submit
            for Senate advice and consent to ratification any international
            agreement:

              (i) that would add one or more countries as state parties to
            the ABM Treaty, or otherwise convert the ABM treaty from a
            bilateral treaty to a multilateral treaty; or
              (ii) that would change the geographic scope or coverage of
            the ABM Treaty, or otherwise modify the meaning of the term
            ``national territory'' as used in Article VI and Article IX of
            the ABM Treaty.

        Finally, Professor Glennon contends as a general proposition that
    the concurrence of the Congress may be inferred from its silence, i.e.
    by its failing to make a ``timely objection'' to a President's
    ``determination'' that a treaty exists between the United States and
    another State. Glennon Testimony at 2. Professor Glennon offers no rule
    to determine Congressional timeliness, and in any event does not
    contend that the time for Congressional objection to the making of an
    ABM treaty with Russia had expired before the Congress in 1994
    allegedly concurred by way of Section 232(a) of the National Defense
    Authorization Act for FY 1995.
        Under international law, as well as U.S. law, words of commitment,
    accord or agreement do not create a legally-binding agreement unless
    they were so intended. Otherwise, the words create only a political or
    moral agreement. Hence, the validity of Professor Glennon's thesis that
    Secretary Baker's words of commitment created a legally-binding
    agreement with Russia depends on how Secretary Baker's words should be
    interpreted. The discussion below shows that under accepted rules of
    interpretation, Secretary Baker's words cannot reasonably be
    interpreted as manifesting an intent to create a legally-binding
    agreement. Hence, when Secretary Baker said that the United States
    remains ``committed'' to ``the'' ABM Treaty, he was referring to a
    political or moral commitment to work toward the making of an agreement
    on ABM systems that would account for the fundamental changes resulting
    from the USSR's dissolution and the emergence of fifteen successor
    States on what had been the USSR's territory. Such a commitment
    constituted what Professor Glennon has referred to in a law review
    article in 1983 as a declaration of ``Nonbinding Adherence to a
    Treaty.'' Michael J. Glennon, The Senate Role in Treaty Ratification,
    77 Am. J. Int'l L. 257, 267 (1983). The State Department has referred
    to such undertakings as ``intended to have political or moral weight,
    but not intended to be legally binding agreements.'' United States
    Department of State, Airgram to All U.S. Diplomatic Posts (Mar. 9,
    1976), reprinted in I United States Foreign Relations Law 15 (Michael
    J. Glennon and Thomas Franck eds., 1980).

        B. Secretary Baker's Press Statement on January 29, 1992 cannot
    reasonably be interpreted as accepting a Russian offer to have a
    legally-binding agreement between the United States and Russia

              1. The United States makes commitments to other States that
            are not legally binding, though they may have moral or
            political effect

        The Case-Zablocki Act of 1972, now codified at 1 U.S.C. Sec. Sec.
    112a, 112b, requires the Secretary of State to publish annually all the
    ``treaties'' and ``international agreements other than treaties'' to
    which the United States became a party during that year. 1 U.S.C. Sec.
    112a(a). The Secretary of State must transmit to the Congress every
    treaty or other international agreement to which the United States has
    become a party ``as soon as is practicable after such agreement has
    entered into force with respect to the United States but in no event
    later than sixty days thereafter.'' (There is a special provision for
    secret transmissions where public disclosure would prejudice national
    security. 1 U.S.C. Sec.  112b). There is no evidence that the State
    Department ever transmitted the text of the Baker-Yeltsin exchange to
    the Congress pursuant to the Case-Zablocki Act, though, since the
    USSR's dissolution, the State Department has transmitted to the
    Congress 135 treaties and other international agreements with Russia.
        The non-publication of the Baker-Yeltsin exchange and the failure
    to send the documents to the Congress suggest that the State Department
    did not consider the Baker-Yeltsin exchange to be either a treaty
    requiring Senate concurrence or otherwise an international agreement to
    which the United States was a party. That is not surprising, in light
    of the State Department regulations implementing the Case-Zablocki Act,
    22 C.F.R. Part 181. According to 22 C.F.R. Sec.  181.2(a)(1), not every
    undertaking is an international agreement:

              The parties must intend their undertaking to be legally
            binding, and not merely of political or personal effect.
            Documents intended to have political or moral weight, but not
            intended to be legally binding, are not international
            agreements.

        The distinction between legally-binding commitments on the one hand
    and moral and political commitments on the other is understood by the
    Congress. Senator Biden emphasized the distinction in his remarks on
    consideration of NATO's ``Strategic Concept,'' in the context of the
    National Defense Authorization for Fiscal Year 2000:

              Mr. President, one of the things that we sometimes confuse
            here--I know I do--is what is a political obligation and what
            is a constitutional obligation. I respectfully suggest that
            there is no constitutional requirement for the President of the
            United States--this President or any future President--to
            submit to the Senate for ratification, as if it were an
            amendment to a treaty, a Strategic Concept that is a political
            document. We use the words interchangeably on this floor. A new
            commitment or obligation, as I said, does not a treaty make.

    145 Cong. Rec. S5889-07, S5901 (daily ed. May 25, 1999) (statement of
    Sen. Biden).
        Also, Senator Biden stated that the distinction required in U.S.
    law was also recognized in international law:

              The rules under U.S. law on what constitutes a binding
            international agreement are set forth in the Restatement of
            Foreign Relations Law of the United States, as well as in the
            State Department regulations implementing the Case-Zablocki
            Act.
              Under the Restatement, the key criterion as to whether an
            international agreement is legally binding is if the parties
            intend that it be legally binding and governed by international
            law. Restatement, Sec. 301(1)).
              Similarly, the State Department regulations state that ``the
            parties must intend their understanding to be legally binding
            and not merely of political or personal effect.'' (22 Code of
            Federal Regulations Sec.  181.2(a)(1)).
              Thus, many agreements that are not binding are essentially
            political statements. There is a moral and political obligation
            to comply in such cases, but not a legal one.
              The most well-known example of such a political statement is
            the Helsinki Final Act of 1975, negotiated under the Ford
            administration and credited by most of us as the beginning of
            the end of the Soviet Union, the most significant political act
            that began to tear the Berlin Wall down . . .

    Id. at S5902 (emphasis added). See also Michael J. Glennon, The Senate
    Role in Treaty Ratification, 77 Am. J. Int'l L. 257, 267 n.72 (1983),
    explaining that in Nuclear Tests Case (Australia v. France), 1974
    I.C.J. Rep. 253, 472, the I.C.J. cautioned that a State's declaration
    of intent to pursue a course of action does not bind the State legally
    unless ``it is the intention of the state making the declaration that
    it should become bound.''

              2. Secretary of State James Baker did not intend to create a
            legally-binding agreement

        It is impossible to conclude from Secretary Baker's words, standing
    alone, that he intended to create a legally-binding agreement.
    Moreover, Secretary Baker's words do not stand alone. They appear in
    the context of adjustment to the USSR's dissolution, and uncertainty
    within the U.S. Executive Branch as to how to create an ABM regime that
    would take account of the fact that four USSR successor-States
    possessed on their territories substantial parts of what had been one
    ABM defense system under the USSR's control.
        Some of the dissolution-caused uncertainties to be faced were
    these:

              (i) Not only Russia, but each of fourteen other newly
            independent States, could claim a right to deploy 100 launchers
            of an ABM defense system around its capital.
              (ii) Six of the twelve early warning radar systems permitted
            to the USSR by the ABM Treaty were located outside the
            territory of Russia, i.e., in Latvia, Belarus, Ukraine,
            Azerbaijan and Kazakstan.
              (iii) ICBM launch sites, equipped with nuclear-armed ICBMs,
            were located in States other than Russia, i.e., in Belarus,
            Ukraine, and Kazakstan.
              (iv) Ukraine alone was the third largest nuclear-weapon State
            in the world. Roman Papadiuk, Amereican-Ukrainian Nuclear
            Relations 2(1996). Ukraine's nuclear arsenal included 176 ICBMs
            with 1,240 nuclear-tipped warheads, and 3,000 tactical nuclear
            weapons. Id. at 279.
              (v) Both before and after Baker's January 29, 1992 conference
            with Yeltsin, the U.S. Executive Branch was troubled by
            Ukraine's and Kazakstan's possession and control of strategic
            nuclear weapons and sought to have those weapons under the
            control of Russia. By April 1992, ``it had become obvious that
            this would not work, as Ukraine and Kazakstan, unable to work
            out their differences with Russia at CIS summits, began to
            insist on equal treatment with Russia.'' Roman Papadiuk,
            American-Ukrainian Nuclear Relations 6 (1996). During the
            period before May 1992, when Ukraine signed the Lisbon Protocol
            to START I (a treaty that required, and received, 2/3 consent
            of the U.S. Senate), Ukraine had ``balked'' when it came to
            implementing its promises to give up control of, or dismantle,
            its nuclear weapons. Id. at 7. After the signing of START I,
            and before it was ratified, Ukraine's Prime Minister Leonid
            Kuchma stated that Ukraine may have to retain its more modern
            SS-24 missiles ``temporarily.'' Id. at 12. In March 1993, the
            Executive Branch was ``deeply concerned'' that Ukraine was
            developing its own launch capability. Id. at 26, 28. Russia
            expressed its own concern on that score to the United States.
            Id. at 30. The issue of right-to-control Ukraine's nuclear
            weapons, as a practical matter, was not resolved until November
            1994, when the Ukrainian parliament acceded to the Non-
            Proliferation Treaty. Id. at 41-43.
              (vi) The only ABM testing site in the USSR's territory was in
            Kazakstan.
              (vii) The distance between Moscow and the USSR's periphery
            (on its west and southwest) was far greater than the distance
            between Moscow and Russia's periphery (on its west and
            southwest), a change that raised questions as to Russia's
            capacity to protect a Moscow ABM defense area as compared to
            the USSR's capacity to protect a Moscow ABM defense area.
              (viii) By a separate Agreement on Joint Measures with Respect
            to Nuclear Weapons at Alma Ata, on December 21, 1991, Russia,
            Ukraine, Belarus and Kazakstan agreed to ``jointly develop a
            policy on nuclear issues,'' Art. 3. Also, they agreed that
            until nuclear weapons were eliminated from the territories of
            Ukraine and Belarus, a decision to use those weapons would
            require agreement of Belarus, Ukraine, Kazakstan and Russia
            (the ``participating States.''). Art. 4. At the same time, no
            participating State agreed to share with any other
            participating State its decision as to whether to develop and
            deploy an ABM defense system. By contrast, Secretary Baker
            expected ``the States of the Commonwealth to abide by all of
            the international treaties and obligations that were entered
            into by the former Soviet Union, including the ABM treaty.''
            Yet, the Commonwealth included seven states that were not
            ``participating States'' within the meaning of the Alma Ata
            separate agreement on nuclear weapons. Hence, it was not clear
            how much control Secretary Baker assumed the seven
            nonparticipating States would have over the four participating
            States as regards ABM defense matters.

        As regards facts of that character, George Bunn and John B.
    Rhinelander who, as U.S. officials, participated substantially in the
    development of U.S. arms-control policies and treaties, and who
    advocate the continuation of an ABM Treaty regime with the USSR
    successor states, made these observations in 1993:

              If each of the former Soviet republics--including all the
            ``states of the Commonwealth'' in Secretary Baker's words--
            succeeded to all Soviet rights under the ABM treaty, each might
            theoretically claim the right to build 100 launchers for an ABM
            system around its capital. (There is already one around Moscow
            equipped with short- and longer-range nuclear-armed ABM
            missiles.) That would clearly be inconsistent with the purpose
            of the ABM Treaty, as amended in 1974, to limit the ABM systems
            to one small, regional system on each side. Unless the ABM
            Treaty was formally amended, to permit each republic to have an
            ABM system would change the basic bargain of the ABM Treaty as
            much as permitting each to become a nuclear-weapon state would
            change the NPT. Nevertheless, as in the case of each of the
            other three arms control treaties discussed in this Article,
            further negotiations between the United States and the
            pertinent former republics will be necessary.
              At the Commonwealth of Independent States summit in Bishkek
            on October 9, 1992, ten of the Commonwealth members, including
            Ukraine, stated that they ``will implement the terms'' of the
            ABM Treaty ``as applied to their territories and in
            consideration of the national security interests of each of
            them.'' The simplest way of doing this might have been to treat
            Russia as the primary successor to the Soviet Union and ask it
            to work out whatever implementation steps are necessary with
            other former republics concerning the ABM Treaty. This method,
            however, did not work for the START I Treaty. . . . An
            alternative that is suggested by the Bishkek resolution is the
            method used for START I: a multilateral agreement between the
            United States and all of the relevant former republics with
            either treaty-limited facilities on their territories or with
            the possibility of building defensive missile systems.

    George Bunn & John B. Rhinelander, The Arms Control Obligations of the
    Former Soviet Union, 33 Va. J. Int'l L. 323, 339-40 (1993) (footnotes
    omitted) (emphasis added.).
        Bunn and Rhinelander's observation predicted the course that the
    U.S. Executive Branch has pursued, and that led to the publication of a
    proposed multilateralization Memorandum of Understanding of September,
    1997. That MOU is a proposed multilateral agreement among the United
    States and all of the relevant successor States having ABM Treaty-
    limited facilities on their territories.
        What Bunn and Rhinelander spoke of in 1993 must have been known to
    Secretary Baker and President Yeltsin in 1992: An ABM treaty with
    Russia that did not place necessary restraints on Ukraine, Belarus, and
    Kazakstan ``would change the basic bargain of the ABM Treaty.''
    Secretary Baker therefore must have known at the time of his January
    29, 1992 press conference that he was not, as a matter of law,
    committing the United States to continue to abjure strategic missile
    defense while Belarus, Kazakstan and Ukraine (which together had
    massive ICBM-delivery capacity and substantial ABM early warning radars
    on their western and southern peripheries) were legally free to develop
    and deploy full ABM systems. And it is equally implausible that Yeltsin
    understood Baker as committing the United States to such a one-sided
    bargain.
        Moreover, the words of Baker and Yeltsin do not have to be read to
    reach such an absurd result. Baker must have known that, at that time,
    his Department was studying the question of which U.S.-USSR treaties
    (if any) legally survived the USSR's dissolution, and he surely knew
    that his Department had not declared the ABM Treaty to be in effect
    with any State other than the USSR. Indeed, the next issue of his
    Department's official annual listing of treaties in force (on January
    1, 1993) does not list an ABM Treaty as in force between the United
    States and Russia. Moreover, with respect to the USSR, that listing
    states that the ABM Treaty's status is ``under review'' in view of the
    developments with respect to the USSR in 1991. United States Department
    of State, Treaties in Force 252-53 (1993).

              3. Secretary of State Baker's remarks can be read as a moral
            or political commitment

        Finally, Secretary Baker's remarks can be understood as a moral and
    political commitment to make an ABM treaty that would take into account
    the changes resulting from the USSR's dissolution and thereby fulfill
    the object and purpose of the ABM Treaty of 1972. Such a reading not
    only comports with the reality of changed circumstances, but adheres to
    the rule that the words of an agreement should be construed in context
    to avoid producing an absurd result. The rule for using context to
    avoid absurdity applies to treaties and other international agreements
    because the general rules of construction apply. See, e.g., Smith v.
    Maryland, 10 U.S. (6 Cranch) 286, 294 (1810) (``No construction of a
    treaty is to be admitted which leads to an absurdity . . . '') (citing
    Vattel at 380-382). See also Chan v. Korean Air Lines, Ltd, 490 U.S.
    122 (1989); Societe Nationale Industrielle Aerospatiale v. United
    States District Court for the Southern District of Iowa, 482 U.S. 522,
    533 (1987) (quoting Trans World Airlines, Inc. v. Franklin Mint Corp.
    466 U.S. 243, 253 (1984)); Air France v. Saks, 470 U.S. 392, 397
    (1985), quoted in Societe Nationale Industrielle Aerospatiale v. United
    States District Court for the Southern District of Iowa, 482 U.S. 522,
    533-34 (1987). In O'Connor v. United States, 479 U.S. 27, 31 (1986),
    the Court rejected the reading of a treaty out of context where that
    would lead to an ``utterly implausible'' result. See also Eastern
    Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (listing cases
    standing for the proposition that ``when interpreting a treaty, we
    `begin with the text of the treaty and the context in which the words
    are used.' ''). See generally Jeffrey L. Dunoff & Joel P. Trachtman,
    Economic Analysis of International Law, 24 Yale J. Int'l L. 1, 29
    (1999); David J. Bederman, Revivalist Canons and Treaty Interpretation,
    41 UCLA L. Rev. 953, 975-1015 (1994). An ABM treaty that did not place
    under its control the ABM assets of Ukraine, Belarus, and Kazakstan
    would have been absurd because, as Bunn and Rhinelander observed, it
    ``would change the basic bargain of the ABM Treaty.''

              4. The Executive Branch's conduct after January, 1992 also
            shows that Secretary Baker's words were not understood to have
            created a legally-binding ABM Treaty with Russia.

        Executive Branch conduct after January 29, 1992 includes the
    following:

              (i) Neither the President, the Department of Justice, nor the
            State Department has ever claimed that Secretary Baker's
            January 29, 1992 response to President Yeltsin created a
            legally binding ABM agreement with Russia.
              (ii) The purpose of Assistant Attorney General Walter
            Dellinger's Memorandum to John Quinn, Counsel to President
            Clinton of June 26, 1996, was to establish support for an
            argument that the ABM treaty of 1972 survived the USSR's
            dissolution. Yet, the Memorandum does not even mention the
            Baker-Yeltsin exchange.
              (iii) As recently as October, 1997, the Arms Control and
            Disarmament Agency's Chief Negotiator on the MOU and START II,
            claimed that the conclusions of those agreements in September
            1997 preserved and enhanced the ``viability'' of the ABM Treaty
            in three ways, the first of which was ``by settling the issue
            of which states of the former Soviet Union are parties to the
            ABM Treaty.'' Matt Murphy, ACDA: Threat Control Through Arms
            Control, State Magazine (November/December 1997).

        In any case, Secretary Baker should be imputed with knowledge of 22
    U.S.C. Sec.  2573, Pub. L. No. 87-297, Sept. 26, 1961, amended in 1994;
    by Pub. L. No. 103-236, Sec.  709, which provided in pertinent part as
    follows:

              The Director [of the Arms Control and Disarmament Agency] is
            authorized and directed to prepare for the President, the
            Secretary of State, and the heads of such other Government
            agencies, as the President may determine, recommendations
            concerning United States arms control and disarmament policy:
            Provided, however, That no action shall be taken under this
            chapter or any other law that will obligate the United States
            to disarm or to reduce or to limit the Armed Forces or
            armaments of the United States, except pursuant to the treaty
            making power of the President under the Constitution or unless
            authorized by further affirmative legislation by the Congress
            of the United States. . . .

        Thus, Secretary Baker knew that the President was statutorily
    barred from obligating the United States, pursuant to any law, to
    ``limit'' the ``armaments'' of the United States, except pursuant to a
    Senate-approved treaty or if authorized by ``further affirmative
    legislation.'' Secretary Baker could not have reasonably read that
    prohibition as containing a loophole whereby he could legally obligate
    the United States if he did so in a manner that was not pursuant to a
    law of the United States.

              5. The United States is not required by international law to
            denounce a lapsed treaty

        Professor Glennon separately invokes the principle of international
    law that if a party to a treaty in force wishes to terminate it or to
    declare it invalid, that party must take an affirmative step toward
    doing so. That is a correct statement of the rule, but the rule assumes
    that a treaty is in effect. If no treaty is in effect, there is no
    treaty to terminate or to declare invalid. When a State becomes
    extinct, all of its bilateral treaties (other than dispositive ones)
    lapse by operation of law, a principle that Professor Glennon does not
    take into account. See Feith & Miron, supra, at 27-5 8; Hunton &
    Williams, The Collapse of the Soviet Union and the End of the 1972
    Anti-Ballistic Missile Treaty: A Memorandum of Law 4-10 (June 15, 1998)
    (David B. Rivkin, Jr., Lee A. Casey, Darin R. Bartram, authors). Hence,
    when the USSR became extinct, there was no ABM Treaty in effect with
    the USSR. Indeed, Professor Glennon implicitly concedes that point
    because he argues that only after Secretary Baker's press statement on
    January 29, 1992, did a process begin for making the United States a
    party to a legally-binding ABM agreement with Russia.
        The difference between denouncing a treaty that is in effect and
    taking as given that an extinct state's bilateral non-dispositive
    treaties lapsed by operation of law is illustrated by the fact that the
    drafters of the 1969 Convention on the Law of Treaties (which includes
    provision for giving notification of intention to denounce treaties
    that are in effect) intentionally avoided dealing with treaty relations
    in the context of State succession. Article 72 provides:

              The provisions of the present Convention shall not prejudge
            any question that may arise in regard to a treaty from a
            succession of States or from the international responsibility
            of a State or from the outbreak of hostilities between States.

              6. Article 34 of the 1978 Vienna Convention on Succession of
            States in Respect of Treaties is not legally binding on the
            United States

        Professor Glennon also cites Article 34 of the 1978 Vienna
    Convention on Succession of States in Respect of Treaties as support
    for his thesis that the Baker-Yeltsin press conference of January 29,
    1997 produced a legally-binding ABM agreement between the United States
    and Russia. Glennon Testimony at 5 n.1. The 1978 Vienna Convention,
    however, does not legally bind the United States because the United
    States is not a party and because rules embodied in the 1978 Vienna
    Convention have not passed into customary international law. See Feith
    & Miron, supra, at 49-54.

              7. The United States is not estopped to deny that it has a
            legally-binding ABM Treaty with Russia

        Citing Nuclear Tests Case (Australia v. France), 1974 I.C.J. 253,
    Professor Glennon asserts that the United States is barred from denying
    that a legally-binding ABM agreement between the United States and
    Russia came into existence because, in Professor Glennon's opinion,
    U.S. officials (Executive Branch and the Congress) had made public
    statements that the ABM Treaty of 1972 was in effect between the United
    States and Russia. Glennon Testimony at 5. Presumably, Professor
    Glennon believes that Russia would argue that the United States was
    estopped to deny that it made a legally-binding agreement with Russia.
    But the law of promissory estoppel, like the law on agreements, does
    not enforce a promise that the promissee knew or should have known was
    absurd. See, e.g. Principal Mut. Life Ins. Co. v. Charter Barclay
    Hosp., Inc., 81 F.3d 53, 57 (7th Cir. 1996); Wilsmann v. The Upjohn
    Co., 865 F.2d 1269, 1989 WL 835 **4 (6th Cir. 1989) (unpublished
    opinion) (promissory estoppel is not an available remedy if the alleged
    obligation appears to be totally implausible). And, Russia knew or
    should have known that it would have been absurd for Secretary Baker to
    have promised that the United States would abjure a defense against
    ICBMs irrespective of whether the three ICBM powers (Ukraine, Belarus
    and Kazakstan) were legally bound as tightly as the United States and
    Russia allegedly were bound to obligations of the character imposed by
    the ABM Treaty of 1972. Moreover, Russia knew or should have known of
    the practice of States of making commitments that are not legally
    binding, though they may have moral or political effect. The
    distinction between legally-binding agreements and agreements having
    only political or moral effect is a recognized part of international
    law. Malcolm N. Shaw, International Law 635-36 (4th ed. 1997); III
    Encyclopedia of International Law 606-12 (1997); Marian Nash (Liech),
    Contemporary Practice of the United States Relating to International
    Law, 88 Am. J. Int'l L. 515-19 (1994); Oscar Schachter, Editorial
    Comment, The Twilight Existence of Nonbinding International Agreements,
    71 Am. J. Int'l L. 296 (1977). For example, Russia, as one of the
    USSR's successors, must have known of the final Act of the Helsinki
    Conference on Security and Cooperation in Europe, Aug. 1, 1975, 73
    Dep't St. Bull. 323 (1975), which has been described as not intended to
    create legal rights. Remarks of Senator Joseph Biden, 145 Cong. Rec.
    S5902 (May 25, 1999); see also Robert F. Turner, International Law and
    the ``Exit Tax'': Does Section 203 of the Tax Compliance Act of 1995
    Violate the ``Right to Emigrate'' Recognized in the U.N. Covenant on
    Civil and Political Rights and Other U.S. and International Legal
    Instruments?, reprinted at 141 Cong. Rec. S5304-01, S5308 (Apr. 6,
    1995). In short, Russia cannot make a case that it understood that the
    United States, by means of Secretary Baker's oral comments, had legally
    foregone its right to develop a defense against ICBMs.

              8. The Nuclear Test Case decision of the International Court
            of Justice does not support a conclusion that Secretary Baker
            intended to make a legally-binding ABM treaty with Russia

        As noted, Professor Glennon invokes the Nuclear Test Case
    (Australia v. France), 1974 I.C.J. 253 in support of his estoppel
    argument. That case, however, does not depart from, indeed, does not
    address, the rule that words should be interpreted so as to avoid (to
    the extent possible) an absurd construction. The case turned on an
    interpretation of statements by the government of France that it
    intended to end atmospheric nuclear testing in the Pacific after the
    summer of 1974. France did not appear in the proceedings. After
    Australia filed its claim, France announced several times that it did
    not intend to conduct atmospheric nuclear tests after 1974. France's
    announcement included a proviso, i.e., ``Thus, atmospheric tests which
    are soon to be carried out will, in the normal course of events, be the
    last of this type.'' 1974 I.C.J. at 266 (emphasis added). Australia
    tried to convince the Court that France's announcements were inadequate
    because a proviso therein left France free to resume testing.
    Therefore, Australia argued, France's announced intention to end
    testing was not by itself legally binding. Id. at 268-69. The Court
    disagreed. ``The Court finds that the unilateral undertaking resulting
    from [France's] statements cannot be interpreted as having been made in
    implicit reliance of an arbitrary power of reconsideration.'' Id. at
    270. Thus, the Court ruled that France's announcement gave Australia
    all the relief it sought in Court, i.e., an unambiguous promise to end
    the testing, and Australia's claim therefore need not be given further
    consideration. Id. at 272. In short, the Nuclear Tests Case involved an
    interpretation of a particular State's announcement of a particular
    commitment, not the establishment of a broad rule that every State's
    announcement of a commitment on any subject must be read as intending
    to create a legally-binding obligation. In any event, to the extent
    that the Court opined on the method of interpreting the promise of a
    State, it cautioned that ``when the States make statements by which
    their freedom of action is to be limited, a restrictive interpretation
    is called for.'' Id. at 267.
                                   conclusion
        The principal gap in Professor Glennon's analysis is the failure to
    address the question of what became of the ABM Treaty of 1972 upon the
    USSR's dissolution in December 1991. Professor Glennon supports
    President Clinton's position that that Treaty (indisputably in force
    until the dissolution) remains in force today. Yet he bases this latter
    contention on an exchange of statements by U.S. and Russian officials
    that did not occur until some weeks after the USSR's dissolution. What
    was the Treaty's status in the interim?
        Are we to suppose that the Treaty remained in force for several
    weeks with only one party, the United States? If so, what would have
    been the Treaty's status if the U.S.-Russian exchange of official
    statements had occurred not a few weeks but a few years after the
    USSR's dissolution? What if that exchange had never occurred? The
    notion that the Treaty could continue uninterruptedly to bind the
    United States despite the USSR's extinction, for years or even weeks
    defies the logic and prudence embodied in the longstanding
    international legal rule that bilateral treaties lapse by operation of
    law if and when one of the two parties dissolves.
        As noted, Professor Glennon's testimony did not acknowledge that
    rule. His testimony, however, did not contradict it and, in fact,
    comports with it, if we interpret that testimony as contending that the
    post-dissolution U.S.-Russian agreement on the ABM Treaty (based on the
    aforementioned statements in January 1992 of President Yeltsin and
    Secretary Baker) aimed to create a new treaty. One can square our
    testimony with that of Professor Glennon to a substantial degree by (1)
    accepting that the ABM Treaty of 1972 did automatically cease to be in
    force when the USSR dissolved and (2) acknowledging that, after the
    dissolution, the United States and Russia could, by mutual consent,
    apply the terms of that treaty to themselves mutatis mutandis.
        We part company from Professor Glennon when he asserts that the
    Yeltsin-Baker agreement constituted more than an agreement to agree on
    terms for a new accord regarding the subject matter of the ABM Treaty
    of 1972. He believes that agreement in and of itself produced a
    legally-binding accord between the United States and Russia that can
    accurately be referred to as ``the ABM Treaty.'' As explained above,
    however, the record refutes the claim that Secretary Baker intended his
    oral remarks to create a new, legally-binding ABM treaty. Moreover,
    even if he had so intended, no such treaty could come into force under
    U.S. law--to wit, Article II, Section 2 of the U.S. Constitution--
    without the advice and consent of two-thirds of the U.S. Senate.
        Hence, the ABM Treaty of 1972 is not now in force and no new treaty
    on the same subject matter between the United States and Russia has
    come into force.
                                     ______

     Prepared Statement of Robert F. Turner, Associate Director, School of
         Law, Center for National Security Law, University of Virginia

        Dear Mr. Chairman: Thank you for your letter of October 11th,
    seeking my written views on the legal status of the 1972 ABM Treaty
    with the Soviet Union and offering to include them in the published
    record of the Committee's May 25th hearing. As I explained to Senator
    Ashcroft's staff when they called to invite me to testify, I had a
    prior commitment for that date involving the education and welfare of
    my six-year-old son, Thomas. Had it been any other conflict, I would
    have done everything possible to take part in the hearing, as this is
    in my view among the most important national security issues facing the
    nation today. I am therefore especially grateful to you for providing
    me with the opportunity to submit my thoughts in writing at this time.
        Perhaps I should begin with a quick summary of some of my relevant
    background on these issues. I hold both professional and academic
    doctorates from the University of Virginia School of Law, where in 1981
    I co-founded the Center for National Security Law. My 1700-page SJD
    dissertation was entitled: ``National Security and the Constitution: An
    Inquiry into the Separation of Powers.'' After teaching, inter alia,
    the basic International Law course here at Virginia in the Woodrow
    Wilson Department of Government and Foreign Affairs for several years,
    I held the Charles H. Stockton Chair of International Law at the U.S.
    Naval War College in Newport, RI. I wrote the separation-of-powers
    chapter in the law school casebook, National Security Law, which I also
    co-edited. For three terms each I chaired the ABA Standing Committee on
    Law and National Security and the Committee on Executive-Congressional
    Relations of the ABA Section of International Law and Practice. I am a
    former senior editor of the Virginia Journal of International Law, and
    since 1992 I have edited the ABA National Security Law Report. I've
    also written or edited more than a dozen books, many of which dealt
    specifically with issues of International Law and/or the constitutional
    separation of national security powers. Finally, as a practitioner, I
    worked for five years in the mid-1970s as national security adviser to
    a member of your committee, and subsequently served in the Pentagon,
    the White House, as Principal Deputy Assistant Secretary of State for
    Legislative and Intergovernmental Affairs, and as the first President
    of the U.S. Institute of Peace. Having mentioned a variety of
    organizations and institutions, I should emphasize that the views which
    follow are entirely personal and should not be attributed to the
    Center, the School of Law, the University of Virginia, the ABA, or any
    other group or entity with which I am or have been affiliated.
        Over the years I have had the pleasure of testifying on several
    occasions as an expert witness before your Committee, and roughly a
    dozen other congressional committees as well. I think it is fair to say
    that I have usually been chosen to reflect a ``pro-Executive''
    perspective, and much (if not most) of the time I suspect I have not
    been the most popular witness on the panel. (Not all legislators like
    to be told that what they want to do is unconstitutional, and that has
    often been my conclusion.) I take some pride in the fact that I haven't
    shifted my legal views over the years to reflect partisan or personal
    policy preferences. I have consistently championed the President's role
    as ``senior partner'' in America's dealings with the external world,
    whether the President in question was named Nixon, Ford, Carter,
    Reagan, Bush, or Clinton. Indeed, on the ABM Treaty itself, I was
    sharply critical of Senate efforts a dozen years ago to overturn
    President Reagan's interpretation of the Treaty during the so-called
    ``broad-narrow'' debate.
        But I have also always acknowledged that there were important
    national security powers clearly vested in Congress and the Senate, and
    the President has a constitutional obligation to respect them. I
    believe that the current controversy involves just such a power, and if
    the President carries through on his threat to keep the 1972 ABM Treaty
    in force with Russia (and/or any other former Soviet republics)
    following a Senate rejection of the 1997 Memorandum of Understanding, I
    believe he will be in clear violation of his oath of office to
    ``protect and defend'' the Constitution. Indeed, I fear such a course
    of action could precipitate a constitutional crisis of the first
    order--rivaling any dispute since Vietnam.
        These issues are complex and tremendously important to the security
    of the nation, but I shall try to be reasonably brief. My full analysis
    of these issues is contained in a 70,000-word monograph (The ABM Treaty
    and the Senate: Issues of International and Constitutional Law)
    scheduled for publication by our Center later this month, and I will be
    happy to provide a copy to the Committee for its files. Since that
    study includes several hundred footnotes to scores of sources, I shall
    not attempt to duplicate that effort here.
      i. the law governing state succession to treaties and the abm treaty
        The international law governing the succession of States to treaty
    obligations is both complex and highly unsettled. I devote more than
    twenty-five pages to it in my monograph. Briefly summarized, a
    nondispositive bilateral treaty like the 1972 ABM accord with the
    Soviet Union would normally cease to exist with the demise of either of
    the Parties. Efforts by very able administration lawyers to portray the
    Treaty as creating permanent burdens on the territory of the former
    Soviet Union are highly unpersuasive.
        It is therefore tempting to conclude, as have several respected
    legal writers and at least some Senators, that the ABM Treaty ceased to
    exist ipso jure on December 24, 1991, with the death of the Soviet
    Union. While such a conclusion is not unreasonable, it fails to
    acknowledge the right of sovereign States to agree to depart from
    traditional rules and to maintain the terms of a treaty in force even
    in a setting where international law would otherwise not permit either
    State to enforce its terms against the will of the other.
        Put differently, the law of State succession to treaties does not
    prohibit the United States from maintaining the terms of the U.S.-
    Soviet ABM Treaty in force with Russia or other States that have arisen
    from the ashes of the Soviet Union; it merely provides that the Treaty
    will not remain in force unless both States--or, if the agreement is to
    be multilateralized, unless all concerned States--clearly express their
    consent to be legally bound.
        Presidents Bush, Clinton, and Yeltsin have repeatedly affirmed that
    the ABM Treaty remains in force. At various times following the
    collapse of the Soviet Union, other Newly Independent States occupying
    former Soviet territory affirmed a similar intent. Under well-
    established principles of international law, heads of state are
    recognized as having the power to speak for their countries in
    diplomatic intercourse.
        This, in turn, might seem to suggest that the 1972 Treaty remains
    in full force today--but the situation is more complex than that. In a
    setting of State succession in which a preexisting treaty would
    normally expire, it is true that the surviving treaty partner and one
    or more ``successor States'' may consent to keep the agreement in
    force; but this is done through a new international agreement which,
    under international law, is of equal dignity to the original accord.
        How each State allocates authority to make such a new commitment is
    of little concern to the international community and is normally
    governed by a domestic constitution or other instrument of domestic
    law. In the United States, the President often resolves simple and
    uncontroversial succession issues by executive agreement (often
    referred to as ``sole executive agreements'' or ``presidential
    agreements,'' to distinguish them from agreements made by the President
    pursuant to authority granted by legislation or a prior treaty).
    However, if the new agreement involves substantive changes to the
    original treaty, under the Constitution the President must submit it to
    the Senate like any other new treaty. And like any other new treaty, it
    may not be ratified by the President unless two-thirds of those
    Senators present affirm their consent.
                  ii. the legal effect of signing the 1997 mou
        As President Clinton explained in a letter to Chairman Gilman dated
    November 21, 1997, ``[n]either a simple recognition of Russia as the
    sole ABM successor . . . nor a simple recognition of all NIS as full
    ABM successors would have preserved fully the original purpose and
    substance of the Treaty, as approved by the Senate in 1972.'' To
    resolve the future status of the Treaty, a new international agreement
    was clearly necessary.
        During a meeting in New York City on September 26, 1997, the
    foreign ministers of Belarus, Kazakhstan, the Russian Federation, and
    Ukraine joined U.S. Secretary of State Madeleine Albright in signing a
    ``Memorandum of Understanding'' (MOU) relating to the 1972 ABM Treaty.
    The first article is worth quoting in its entirety:

                                   Article I

              The United States of America, the Republic of Belarus, the
            Republic of Kazakhstan, the Russian Federation, and Ukraine,
            upon entry into force of this Memorandum, shall constitute the
            Parties to the Treaty.

        In other words, the five States agreed to become Parties to the
    1972 ABM Treaty--subject to the changes and other provisions of the
    MOU--if, and when, the MOU entered into force. It did not become
    effective upon signature. And Article IX of the MOU specified that it
    was ``subject to ratification or approval by the signatory States, in
    accordance with the constitutional procedures of those States.''
        The ``constitutional procedures'' of the United States permit
    international agreements by formal treaty or by various forms of
    executive agreements. However, it is well established that the terms of
    a treaty may not be changed by the President alone. Both sides of the
    current debate have acknowledged that if the ABM Treaty is
    ``substantially changed'' it must be submitted to (and approved by) the
    Senate like any other treaty before entering into force.
                  iii. substantive changes in the 1972 treaty
        From my perspective, it is preposterous to argue that the MOU does
    not involve ``substantive changes'' to the 1972 Treaty, and the same
    conclusion would result from any effort to transform the U.S.-Soviet
    treaty into a bilateral accord with Russia alone. I discuss this at
    length in my monograph, but the changes in territory alone are clearly
    sufficiently substantial to require resubmission to the Senate.
        To be sure, in some settings of State succession a change in
    territory would not be critical, but the ABM Treaty is specifically
    designed to prevent the territory under the sovereign control of the
    two Parties from being used for a certain purpose. If you have any
    doubts about this, ask yourself how many of the 88 Senators who
    consented to the ratification of the 1972 Treaty would have voted that
    way had they been told that the Soviets had reserved, say, ten sites
    around their territory of five square kilometers each, which they
    insisted would not be constrained by the Treaty? I worked for a member
    of the Foreign Relations Committee for five years after that Treaty was
    ratified, and I would be shocked if as many as eight Senators would
    have consented to such an accord--which would have permitted the Soviet
    Union to deploy a national ballistic-missile defense system totally
    contrary to the object and purpose of the treaty.
        If the MOU goes into effect, it will exclude from the legal
    constraints of the 1972 ABM Treaty approximately 1.5 million square
    kilometers of territory formerly belonging to the Soviet Union. Based
    upon the territory required for the various elements of the U.S.
    Safeguard ABM system deployed near Grand Forks, ND, in 1974 (which I
    visited as a Senate staff member that year), approximately 400,000 new
    ABM sites, with millions of new interceptor missiles, could be
    constructed in such a vast expanse of territory.
        On the other hand, if the President attempted to keep the ABM
    Treaty in force with Russia alone, he would by presidential fiat be
    excluding roughly 5.5 million square kilometers from coverage by the
    Treaty--an area roughly fifty times larger than the Commonwealth of
    Virginia. A space this large could hold approximately 1.5 million ABM
    sites, housing 150 million interceptor missiles (and half of this space
    would be used for each site to have its own PAR radar, whereas a small
    number of PARs could actually support numerous launcher sites each).
    Since the ABM Treaty, as amended in 1994, limits each side to a single
    site with no more than 100 interceptor missiles, exempting these vast
    tracts of land (without exempting so much as a single square foot of
    U.S. territory) obviously constitutes a substantive change in the
    Treaty.
        Yet another major change involves the number of Parties to the
    Treaty. Under the MOU, the bilateral ABM Treaty would be changed to a
    multilateral agreement--which, in turn, involves different legal rules
    governing things like amendment and remedies for material breach. This,
    by itself, is enough to clearly require submission to the Senate, and I
    know of not a single instance in U.S. history where a president has
    even attempted to multilateralize a treaty without Senate consent.
        Last January, Secretary of Defense Cohen announced that next summer
    the United States may seek to amend the terms of the ABM Treaty. As
    that Treaty was approved by the Senate in 1972, the Soviet Union would
    have had a veto over any proposed U.S. amendment(s). Under the MOU,
    Belarus, Kazakhstan, the Russian Federation, and Ukraine would each
    have a veto. Obviously that is a very relevant `substantive change.''
        From this it is absolutely clear that the President may not
    unilaterally commit the United States to a long-term extension of the
    1972 ABM Treaty without the advice and consent of the Senate as
    required by Article II, Section 2, Clause 2, of the Constitution.
                        iv. current u.s. abm obligations
        This leads to the question of our current international legal
    obligations regarding ABM defenses. The situation is complex, and
    honorable people may disagree. Some may argue that the statements made
    by the leaders of the United States and the Russian Federation (and
    perhaps other former Soviet republics) resulted in the interim
    continuation of the 1972 Treaty pending negotiation and ratification
    (or rejection) of a new ABM agreement. There is considerable precedent
    for American presidents making interim policy decisions even in areas
    where Congress or the Senate are given a constitutional veto, at least
    until Congress or the Senate have had an opportunity to examine the
    issues and take a position.
        However, in this instance, both Congress and the Senate had taken
    positions long before the MOU was negotiated. For example:

       Section 33 of the Arms Control and Disarmament Act of 1961
            prohibits action under that, or any other, statute that would
            limit U.S. armaments ``in a militarily significant manner,
            except pursuant to the treaty-making power of the President . .
            . or unless authorized by the enactment of further affirmative
            legislation by the Congress. . . .''
       In 1987, during the so-called ``Broad-Narrow'' ABM
            reinterpretation debate (in which I believe the Senate exceeded
            its proper authority), the Senate passed a resolution declaring
            that ``no amendment to the ABM Treaty may occur without the
            agreement of the parties and the advice and consent of the
            Senate.''
       The Defense Authorization Act for FY 1995 expressly provides
            that ``the United States shall not be bound by any
            international agreement entered into by the President that
            would substantively modify the ABM Treaty unless the agreement
            is entered into pursuant to the treaty making power of the
            President under the Constitution.''
       Four months before the signing of the MOU, the Senate
            attached ``Condition 9'' to its resolution consenting to the
            ratification of the CFE Flank Document, again demanding that
            any effort to continue the ABM Treaty in force be submitted to
            the Senate; and President Clinton agreed to these terms.

        Given this clear history, it would be very difficult to argue with
    a straight face that the President believed the Senate would acquiesce
    to his unilaterally making any international agreement to continue the
    1972 ABM Treaty in force.
        International law does not require States to be familiar with the
    internal political processes--including the legislative process and its
    products--of its treaty partners. Thus, the fact that a State's own
    domestic laws prohibited the making of a particular treaty or category
    of treaties is not legal justification to avoid the obligations of such
    a treaty if it is otherwise properly made. This is reflected in Article
    46 of the Vienna Convention on the Law of Treaties, which the United
    States has long recognized reflects binding customary international
    law. Article 46 provides:

              1. A State may not invoke the fact that its consent to be
            bound by a treaty has been expressed in violation of a
            provision of its internal law regarding competence to conclude
            treaties as invalidating its consent unless that violation was
            manifest and concerned a rule of its internal law of
            fundamental importance.

        Note the exception here: ``unless that violation was manifest and
    concerned a rule of its internal law offundamental importance.'' What
    that means is that the United States can not be bound by a treaty--
    whether a new treaty, or one incorporating amendments to an earlier
    treaty--concluded in manifest violation of the constitutional
    requirement for Senate approval.
        One might argue that the initial statements about continuing the
    ABM Treaty in force were, upon more careful reflection, superseded by
    the decision to negotiate and sign the MOU. By this reasoning, the
    terms of the 1972 Treaty will only come into effect between the MOU
    signatory States if and when it is properly ratified. On the other
    hand, one might also contend that the intent of the Parties was to keep
    the Treaty in force on an interim basis until the MOU could be
    negotiated and ratified. Given some ambiguity, the obligation of ``good
    faith'' inherent in all diplomatic intercourse might suggest that the
    terms of the 1972 Treaty ought not be violated until its future is
    decided by approval or rejection of the MOU.
        Fortunately, as a practical matter, it is not necessary to resolve
    this issue. When Secretary Albright signed the 1997 MOU, the United
    States clearly incurred a legal duty not to ``defeat the object or
    purpose'' of the treaty (the MOU) ``until it shall have made its
    intention clear not to become a party . . . .'' This widely recognized
    principle of customary international treaty law is reflected in Article
    18 of the Vienna Convention on the Law of Treaties.
        The United States has historically (and I think properly)
    interpreted this obligation as one not to take ``irreversible'' actions
    contrary to a signed but unratified treaty. Thus, I argue in my
    monograph, that while enactment of the National Missile Defense Act of
    1999 clearly established a national policy that is contrary to the
    clear object and purpose of the MOU, it did not violate our interim
    obligations under that Treaty because the policy could be changed prior
    to the entry into force of the MOU. On the other hand, research and
    testing that is prohibited by a signed treaty is clearly improper
    during the interval between signature and ratification or rejection, as
    there is no way to verify that a State has destroyed or ``forgotten''
    the acquired knowledge which the treaty was designed to prohibit.
                             v. where to from here?
        A few conclusions may now be in order.

       While academically interesting arguments can be made for or
            against the proposition that the 1972 ABM Treaty ceased to
            exist with the demise of the Soviet Union at the end of 1991,
            it is not as a practical matter necessary to resolve that
            issue. When Secretary of State Albright signed the MOU in 1997,
            the United States incurred a clear legal obligation not to
            defeat the object or purpose of that agreement--which for
            practical purposes incorporates the terms of the 1972 ABM
            Treaty.
       The President has a clear constitutional duty to submit the
            MOU to the Senate before attempting to implement it; and, given
            his position that the United States is bound by the terms of
            the 1972 Treaty in the interim, submission of the MOU to the
            Senate should not be unreasonably delayed.\1\
    ---------------------------------------------------------------------------
        \1\ I have intentionally chosen an imprecise term because we
    address here one of the ``gray areas'' of constitutional law.
    Historically, in making a new international commitment, the President
    was seen as being under no duty to submit a signed treaty to the Senate
    at any particular time. The constitutional requirement was merely that
    he not ``ratify'' the agreement (i.e., establish a legally-binding
    obligation for the United States) until after two-thirds of the
    Senators present had voiced their consent. The modern rule found in
    Article 18 of the Vienna Convention--essentially a clarification of a
    traditionally recognized duty of ``good faith'' in such matters--raises
    an interesting constitutional problem, as the President may be able to
    incur legal obligations on the nation that are strongly opposed by more
    than a third of the Senate by merely withholding signed treaties from
    that body. At the same time, the President needs to have some
    discretion as to his timing in such matters. While I personally have
    some reservations about holding up action on the ABM MOU until after
    President Yeltsin can persuade the Russian State Duma to consent to the
    ratification of the START II agreement--reservations premised upon the
    knowledge that our apparent duplicity may incur ill will towards the
    United States within the Duma and the Russian people that will
    transcend the current administrations in both countries--I nevertheless
    recognize that this is the President's call and would caution against
    any constitutional interpretation that would deny him reasonable
    discretion in such matters.
    ---------------------------------------------------------------------------
       Even more clearly, if the Senate rejects the MOU, the
            President has absolutely no constitutional authority to keep
            the 1972 ABM Treaty in force with any country other than the
            Soviet Union, which no longer exists. To attempt to do so would
            likely precipitate a most unfortunate confrontation that might
            dwarf the ``broad-narrow'' dispute of a dozen years ago.

        No one would benefit from such a confrontation: neither political
    branch of the Government, neither political party, and certainly not
    the American people. It can only be hoped that the President will
    reconsider his earlier threats to act unilaterally in the event the
    Senate rejects his proposed treaty.
        So where do we go from here? My belief when I first began examining
    this problem more than two years ago was that we needed a fundamental
    national debate to decide who we are as a nation, what our threats are,
    where we want to go from here, and how to get there. The issue of
    ballistic-missile defenses would be a major part of that debate. But
    within the past year I have sensed a major change. That debate may be
    over, at least with respect to the ABM issue. The successful testing of
    ABM components has certainly undercut contentions that the technology
    can't work, and the reports of the Rumsfeld Commission and Cox
    Committee were clearly influential in producing a bipartisan 97 to 3
    Senate vote last March in favor of building a national ballistic
    missile defense system. Despite earlier threats of a veto, the
    President made that policy the law this summer.
        Fifteen years ago, I served for several months as acting Assistant
    Secretary of State for Legislative and Intergovernmental Affairs. In
    that capacity, I spent many hours paving the way for ratification of
    the Genocide Convention, which the United States had signed more than
    three decades earlier. Based upon that experience--and the knowledge
    that 97 Senators voted just seven months ago to build a national
    missile defense as soon a technologically possible, in the hope of
    reducing the risk to tens of millions of Americans from newly emerging
    ballistic missile threats--I submit that anyone who would predict that
    two-thirds of the Senate will now vote in favor of ratification of the
    ABM MOU ought to be tested for possible recreational chemical abuse.
    The MOU is clearly not going to be approved unless there are some major
    changes in attitudes.
        If one accepts that conclusion, then we are left asking when and
    how to deal with this reality. And a major consideration in this
    decision is the importance of dealing in good faith with the Russians
    and our other potential treaty partners.
        Our own leaders (first in the Bush administration and more recently
    the Clinton administration) have given assurances to Russia and other
    former Soviet republics concerning the status of the 1972 Treaty, and
    even if we have the legal option of simply disavowing these assurances
    that would be horrible policy. If your checks aren't good, you either
    have to bring cash or people will refuse to do business with you.
        From my perspective, the answer is fairly simple. It is my
    impression that, were the United States to move forward expeditiously
    with the development and deployment of a national ballistic-missile
    defense system, no steps likely to occur during the first six months
    would violate the terms of the 1972 ABM Treaty. Assuming that this is
    true (or, if it is mistaken, that any such steps could be postponed
    briefly to ensure compliance during that period), there is thus no need
    to undermine the President's assurances that the Treaty is still in
    force. Nor, for that matter, is it necessary to affirm those
    statements. All we need to do is to clearly comply with the provisions
    of Article XV (2) of the Treaty, which provides:

              Each Party shall, in exercising its national sovereignty,
            have the right to withdraw from this Treaty if it decides that
            extraordinary events related to the subject matter of this
            Treaty have jeopardized its supreme interests. It shall give
            notice of its decision to the other Party six months prior to
            withdrawing from the Treaty. Such notice shall include a
            statement of the extraordinary events the notifying Party
            regards as having jeopardized its supreme interests.

        To begin with, the test for exercising this option is entirely
    subjective: If the United States ``decides'' that the emerging new
    ballistic-missile threats discussed by the Rumsfeld Commission
    jeopardize our ``supreme interests'' (which clearly they do, as they
    involve threats to the lives of millions of our people), then
    withdrawal is permitted by simply giving six-months notice.
        Just as American presidents from both political parties have for
    the past quarter-century finessed the issue of whether they are bound
    by the controversial 1973 War Powers Resolution by submitting required
    reports pursuant to a ``desire that Congress be kept fully informed of
    this matter and consistent with the War Powers Resolution,'' the United
    States could address diplomatic communications to the other MOU
    signatories that fully satisfied the requirement of Article XV of the
    ABM Treaty without necessarily resolving the current status of that
    Treaty. If a former Soviet republic believes the 1972 Treaty to still
    be in force, such a notice would serve lawfully to terminate it. If
    another MOU signatory State does not consider the 1972 Treaty to be in
    force, then the same notice would relieve the United States of its
    obligations as reflected in Article 18 of the Vienna Convention.
        Before closing, I would make four more brief observations:

       As a matter of international law, the Senate has no
            authority to communicate directly with foreign States; and thus
            any such notice will have to come from the President. Ideally,
            this should be worked out through consultations and in a spirit
            of bipartisan cooperation and mutual comity. However, there is
            also precedent for either Congress or the Senate to instruct
            the President to give notice of termination of a treaty, and it
            is my understanding that presidents have always followed those
            congressional instructions.\2\
    ---------------------------------------------------------------------------
        \2\ Candidly, whether the Congress or Senate has the constitutional
    power to direct the President to terminate a treaty is not clear to me.
    Past precedent may be largely a result of presidential prudence,
    especially in a setting where Congress was likely to enact (or perhaps
    had already enacted) legislation in conflict with treaty obligations,
    or when the President knew that future treaty implementation would
    require additional funding by legislative appropriations.
    ---------------------------------------------------------------------------
       While the Senate ought not attempt to communicate formally
            with any foreign government or people, its Members should keep
            in mind that the Russians can read. They will draw conclusions
            from Senate action in this area, and it would be prudent for
            Senators to keep this in mind. A few carefully crafted,
            bipartisan, colloquies during the course of related hearings or
            debates--emphasizing that the perceived ballistic missile
            threat is not from Russia but from radical States that ought
            also to be of concern to our new Russian friends--might be very
            helpful. This is an area where close coordination with the
            Department of State might prove especially wise.
       The United States is today the world's most powerful
            country, which ironically makes it all the more important for
            us both to be honorable, and to be perceived as being
            honorable, in our relations with other States. To be sure, we
            can probably defend ourselves against any existing threat for
            the foreseeable future. But we can not beat every existing or
            foreseeable threat, and we ought to be trying hard to reassure
            the world that there is no need to unite against America. The
            examples we set in our diplomacy in the years following World
            War II are instructive, as then we were also the world's most
            powerful nation.
       Our relationships with Russia and the other former Soviet
            republics are important, and it is in our interest to treat
            these countries honorably and with appropriate respect. The
            reason the United States is concerned about the threat of
            nuclear- or biologically-armed ballistic missiles has little to
            do with a democratic Russia and almost everything to do with
            rogue States like North Korea, Iraq, and Iran. These States are
            also potential threats to the Russian people, and we ought to
            be emphasizing both points as we move forward on this issue.
            Consistent with preserving critical national security secrets,
            I would recommend broad cooperation with Russia in developing
            and building ABM facilities that might be able to protect both
            countries, and other potential victims around the world as
            well. I believe that, if properly handled, a clarification of
            our ABM policy might actually improve relations with Russia; as
            the mixed signals we have been sending have exacerbated
            paranoia and long-standing mistrust among Russians.

        Mr. Chairman, I hope these views have been helpful. Again, I was
    delighted to have been invited to testify on May 25th, and I deeply
    regret that my prior commitment precluded my participation in person at
    that time. Nevertheless, I am pleased to have been able to provide my
    views for the record at this later date. I will of course be happy to
    attempt to answer any questions which you or any of your colleagues
    might have for the record.

      CORNERSTONE OF OUR SECURITY: SHOULD THE SENATE REJECT A PROTOCOL TO
              RECONSTITUTE THE ABM TREATY WITH FOUR NEW PARTNERS?

                                  ----------

                            WEDNESDAY, MAY 26, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met at 10:21 a.m., in room SD-562, Dirksen
    Senate Office Building, Hon. Jesse Helms (chairman of the
    committee) presiding.
        Present: Senators Helms, Hagel, Frist, and Biden.
        The Chairman. The committee will come to order.
        Today the Senate Foreign Relations Committee continues its
    scheduled series of hearings on the ABM Treaty. This morning
    the committee welcomes the distinguished Dr. Henry Kissinger
    who served as National Security Adviser to President Nixon and
    as Secretary of State to both Presidents Nixon and Ford. I
    should note for the record that Dr. Kissinger is the principal
    architect of the 1972 Anti-Ballistic Missile Treaty.
    Accordingly, I think he is uniquely qualified to advise this
    committee on the extent to which the concept of mutual assured
    destruction is a useful notion in today's world of
    proliferating missile threats.
        Before beginning my comments, I commend the leadership of
    Senator Hagel in steering the committee's study of the ABM
    Treaty. Senator Hagel is arriving at this moment.
        Senator Hagel. Right on cue.
        The Chairman. For 2 months, Senator Hagel has directed the
    committee's examination of the growing threat and has assessed
    the feasibility of various missile defense technologies, all
    the while uncovering the pernicious effect that the ABM Treaty
    has had and is continuing to have on U.S. defense plans.
        Also, I am deeply grateful for the work being done in the
    committee on the ABM Treaty by Senators Ashcroft and Lugar.
    Now, Senator Lugar, who will be shortly--no, he will not. He
    has an important meeting of his own committee, and I am
    supposed to be there, but I cannot be there and he cannot be
    here.
        But in any event, Senator Lugar steered the committee's
    hearing on the technical aspects of missile defense, and
    Senator Ashcroft chaired a critical hearing just yesterday
    relating to the legal status of the ABM Treaty.
        It is widely recognized that the treaty itself lapsed with
    the dissolution of the Soviet Union, but what some may not know
    is that the Clinton administration is seeking to reconstitute
    the ABM Treaty with four new partners. The fine work being done
    by Senator Ashcroft is central to the question of whether the
    Senate should approve this effort.
        In any case, the committee has determined, through the
    aforementioned work of one colleague on this committee, that
    the Clinton administration continues to cling to ABM Treaty
    strictures despite the clear and growing menace of ballistic
    missile attack. I must conclude, for one, that the
    administration has developed blueprints for national missile
    defense not on the basis of the best technology available, but
    on the basis of what can be most easily negotiated with Russia
    in a revised ABM Treaty.
        Which leads me to one main point which I feel obliged to
    stress. I'm sure that Dr. Kissinger will help the committee
    assess the merits of my proposition which is that the time has
    come to dispense with the ABM Treaty.
        The concept of mutual assured destruction was negotiated
    with an adversary that no longer exists in a world without
    rogue nations armed with ICBM's. The MAD concept emerged at a
    time when it was cheaper and easier to build offensive systems
    rather than defensive ones, and if the ABM Treaty ever served a
    useful purpose--and that is a debatable suggestion in my
    judgment--it is undeniably out of touch with today's post-cold
    war world. In short, the ABM Treaty buys the United States
    nothing whatsoever today. All it is doing, even while in legal
    abeyance, is complicating U.S. missile defense plans while talk
    continues about this proposal or that proposal which would need
    to be negotiated with Russia.
        I think Senator Hagel put it best when he emphasized the
    moral bankruptcy of strategic vulnerability in this day and
    age. No nation has the right to obliterate United States cities
    and no nation has the right to veto U.S. defense plans. Russia
    is not the Soviet Union and Russia should not be encouraged to
    think in ABM Treaty terms as the Soviet Union did.
        Parenthetically, Red China, a nation which has just been
    caught stealing atomic secrets for their nuclear ICBM's, with
    which it has already explicitly threatened our cities, has
    absolutely no right to complain about U.S. deployment of a
    missile defense.
        Now, I am going to do everything within my power to ensure
    that the ABM Treaty is never resurrected or reconstituted
    regardless of whether the President proposes one other party to
    the treaty or twenty. The concept of limiting missile defense
    is a moral and defunct proposition for a Nation that has both
    the ability and the urgent need for such defenses.
        Now, I say to my distinguished guest that I have given the
    President until next week to fulfill his legally binding
    certification that he will submit a succession arrangement to
    the treaty. As I have said, consideration of such a document
    will be more than a political referendum on the treaty. It will
    be a very real debate over whether the Senate will bring the
    ABM Treaty out of legal limbo or hold it in abeyance forever.
        [The prepared statement of Senator Helms follows:]

                   Prepared Statement of Senator Jesse Helms

        Today the Senate Foreign Relations Committee continues its
    scheduled series of hearings on the ABM Treaty. This morning the
    Committee welcomes Dr. Henry Kissinger, who served as National Security
    Advisor to President Nixon, and as Secretary of State to both
    Presidents Nixon and Ford.
        I should note for the record that Dr. Kissinger is the principal
    architect of the 1972 Anti-Ballistic Missile Treaty. Accordingly, he is
    uniquely qualified to advise the Committee on the extent to which the
    concept of ``mutually-assured destruction'' is a useful notion in
    today's world of proliferating missile threats.
        Before proceeding with my comments, I commend the leadership of
    Senator Hagel in steering the Committee's study of the ABM Treaty. For
    two months, Senator Hagel has directed the Committee's examination of
    the growing threat, and assessed the feasibility of various missile
    defense technologies, all the while uncovering the pernicious effect
    that the ABM Treaty has had--and is continuing to have--on U.S. defense
    plans.
        I also am deeply grateful for the work being done in the Committee
    on the ABM Treaty by Senators Ashcroft and Lugar. Senator Lugar steered
    the Committee's hearing on the technical aspects of missile defense and
    Senator Ashcroft chaired a critical hearing yesterday relating to the
    legal status of the ABM Treaty.
        It is widely recognized that the treaty itself lapsed with the
    dissolution of the Soviet Union. But what some may not know is that the
    Clinton Administration is seeking to reconstitute the ABM Treaty with
    four new partners. The fine work being done by Senator Ashcroft is
    central to the question of whether the Senate should approve this
    effort.
        The Committee has determined, through the aforementioned work of my
    colleagues, that the Clinton Administration continues to cling to ABM
    Treaty strictures despite the clear and growing menace of ballistic
    missile attack. I must conclude that the Administration has developed
    blueprints for a national missile defense--not on the basis of the best
    technology available--but on the basis of what can be most easily
    negotiated with Russia in a revised ABM Treaty.
        Which leads me to the main point I feel obliged to stress--and Dr.
    Kissinger will help the Committee assess the merits of my proposition--
    that the time has come to dispense with the ABM Treaty.
        The concept of mutually-assured destruction was negotiated with an
    adversary that no longer exists, in a world without rogue nations armed
    with ICBMs. The ``MAD'' concept emerged at a time when it was cheaper
    and easier to build offensive systems rather than defensive ones.
        If the ABM Treaty ever served a useful purpose--and that is a
    debatable suggestion--it is UNDENIABLY out of touch with today's post-
    Cold War world. In short, the ABM Treaty buys the United States nothing
    today. All it is doing, even while in legal abeyance, is complicating
    U.S. missile defense plans. Talk continues about this proposal or that
    proposal which would need to be negotiated with Russia.
        Senator Hagel put it best, I think, when he emphasized the moral
    bankruptcy of strategic vulnerability in this day and age. No nation
    has a right to obliterate U.S. cities, and no nation has a right to
    veto U.S. defense plans. Russia is not the Soviet Union, and Russia
    should not be encouraged to think in ABM Treaty terms as the Soviet
    Union did.
        And, parenthetically, Red China--a nation which has just been
    caught stealing atomic secrets for the nuclear ICBMs with which it has
    already explicitly threatened our cities--has absolutely no right to
    complain about U.S. deployment of missile defenses.
        I shall do everything within my power to ensure that the ABM Treaty
    is never resurrected or reconstituted, regardless of whether the
    President proposes one other party to the treaty, or twenty. The
    concept of limiting missile defenses is a morally-defunct proposition
    for a Nation that has both the ability, and the urgent need, for such
    defenses.
        I have given the President until next week to fulfill his legally-
    binding certification that he will submit a succession arrangement to
    the treaty. As I have said, consideration of such a document will be
    more than a political referendum on the treaty. It will be a very real
    debate over whether the Senate will bring the ABM Treaty out of legal
    limbo, or hold it in abeyance forever.
        Today marks the 740th day that the President's promise has gone
    unhonored. More than 2 years have passed since the President made his
    pledge, which, significantly, was the basis upon which the CFE Flank
    Agreement was brought into force.
        The President's delay, together with his repeated efforts to
    circumvent his pledge (by calling Russia a Party to the treaty), now
    call into question to validity of the CFE Flank Agreement and the
    ongoing CFE negotiations in Vienna. I must urge the President to
    fulfill his promise immediately, or risk being forced to explain to
    various European nations why the Senate has judged that U.S. agreement
    to the revised Flank Document is defective under law.
        The Senate Foreign Relations Committee has enjoyed a tremendously
    productive working relationship with the Administration this session.
    Both the International Nuclear Safety Convention and the Amended Mines
    Protocol (two treaties desperately wanted by the executive branch) were
    moved expeditiously to the Senate floor at the Administration's
    request. In both cases the Committee bent over backwards to accommodate
    the White House and to secure ratification in time for the United
    States to participate in treaty-related meetings.
        But the treaty-making power under Article II, Section II, clause 2
    of the Constitution is a two-way street. The President cannot violate
    the letter and spirit of his ratification-related pledges without
    undermining the confidence of the Senate in the cooperative
    ratification process. This is an issue larger than just the legal
    status of the ABM Treaty. It goes to the heart of the manner by which
    the United States enters into, and is bound by, treaties. If the
    President cannot be relied upon to fulfill his commitment and submit a
    document that has been collecting dust for 2 years, he should not be
    surprised when the Senate takes action to enforce previously-imposed
    legal conditions.
        With this final exhortation to the President to fulfill his legal
    obligations, I turn to Senator Biden for any comments he might have.

        The Chairman. Senator Biden, we will be glad to hear from
    you.
        Senator Biden. Mr. Secretary, believe it or not, the
    chairman and I are good friends. We agree on everything. The
    only thing that has not changed is our view on strategic
    defense and the ABM Treaty. I wish the chairman would be more
    blunt about how he feels about this.
        I take it very seriously, Mr. Secretary, when the chairman
    says that, in so many words, over his prostrate body will we
    see the ABM Treaty remain in force. I have no doubt about his
    conviction on that point, and I have no doubt about his ability
    to generate sufficient votes on this committee.
        But I do have a little bit of a doubt about the contention
    that the committee has already concluded this. If it has
    already reached the same conclusion as the chairman, I missed
    the meeting. But I have no doubt that it will be a difficult
    meeting--not in a personal sense, but a difficult meeting in
    terms of the intellectual debate that is going to take place
    over this issue. The storm clouds are gathering.
        And I read your statement, Mr. Secretary, and I do not
    think my case is going to be helped by your statement. But I
    mean this sincerely when I say it is always a pleasure to have
    you come and consult with this committee.
        You and I often kid when we are together with those around
    us about the first consultation that I had as a young United
    States Senator, when I was 30 years old. I am going to repeat
    it for my friend from the Midwest. I walked into the hearing
    late. It was an executive session. The chairman may remember
    it. He was on the committee at the time, I think, as well. I
    walked in late. I sat at this hearing table thinking this was
    where the meeting was, not realizing that we had an executive
    committee meeting room.
        Then I went running over. It was late spring. It was hot.
    The Secretary was giving his ``world view,'' which is the way
    it was titled. I went running in. The guard stopped me, spun me
    around when I tried to go in the door, and demanded
    identification, which sort of heightened things a little bit.
    My hand was perspiring. You know that door that opens inward in
    our committee room? There used to be filing cabinets, the
    chairman will remember, right on the right-hand side. The door
    slipped out of my hand. There was no restraining device on the
    door then, because they did not want to spoil the look of the
    wall. So the door smashed against the filing cabinets and I
    arrived in the middle of the hearing literally upon the back of
    the Secretary.
        The chairman at that time was the acting chairman, our
    Majority Leader, Mike Mansfield. He said, ``sit down.'' I sat
    down, making myself the second ranking member of the committee.
        The hearing was almost over. The leader said, are there any
    more questions? And I can tell the Senator remembers this. And
    I said, yes, I have a question. I had rehearsed my question. It
    was my first appearance. The question had been asked 17 times
    already, I suspect. And I asked my question with as much sense
    of authority as I could muster. The Secretary looked across and
    he said to the chairman, ``I thought no staff was permitted in
    this meeting.''
        At which point Joe Sisco, who was his assistant at the
    time, passed over a note that said, Biden-Delaware. He said,
    ``oh, I apologize, Senator Bidden.''
        And I said, ``Secretary Dulles, it does not bother me a
    bit.''
        But from that moment, from that time to now, there is no
    one whose views I listen to more closely than yours, Mr.
    Secretary. You are probably the most knowledgeable person in
    this country on American foreign policy, and as the old joke
    goes, you have been there and you have done that. And you did
    the ABM Treaty as well. I am anxious to hear what you say and
    to get a chance to ask you some questions.
        But let me digress for another 2 minutes, Mr. Chairman,
    before we move to the topic. I want to commend you, Mr.
    Chairman, for your speedy appointment of Steve Biegun to be the
    staff director of this committee. Nobody will really fill the
    shoes of Admiral Bud Nance. We are going to miss him, no one
    more than you. But the committee work has to go on and I think
    you have made a fine choice, and I look forward to working with
    him.
        I got to know Steve during work on NATO enlargement and the
    CFE Flank Document, and he has been able and honorable. I am
    confident we can continue the kind of relationship we have had.
        Let me conclude by saying, Mr. Chairman, I appreciate you
    having these hearings. I look forward to the debate we are
    going to have on the future of ABM. I would like to urge you
    again. I wish you were willing to move us forward with the
    Comprehensive Test Ban Treaty hearings, as well. I told you I
    am going to raise that question with you every time I can. I
    think that it is critical that we have hearings on that issue,
    but we can get underway here. I do not want to delay the
    Secretary any longer.
        Again, welcome, Mr. Secretary. It is a delight to have you
    here.
        The Chairman. Mr. Secretary, he has a needle about that
    long in his right-hand pocket.
        Senator Biden. But I keep telling him about it.
        The Chairman. Senator Hagel.
        Senator Hagel. Mr. Chairman, thank you. I too wish to add
    my welcome, Mr. Secretary. Thank you for spending some time
    with us listening to Senator Bidden here.
        I thought that is the way it was done, Joe. But I
    appreciate Joe Biden's leadership and the chairman's leadership
    on this issue. Hardly an American understands as well as you,
    Mr. Secretary, the importance of what we are dealing with here.
        I wish to also express to you, as I have heard it over the
    last 48 hours many times, the excellent framing piece that you
    did in Newsweek this week. Those of you who have not read it,
    should read it. You connect the world better, as you normally
    do, than about anybody around. In this piece, I think it is not
    only eloquent but it is right on the mark as to not only the
    short-term challenges this country and the world must deal
    with, but more importantly what is ahead for the next
    millennium. So, thank you for that contribution.
        I do have a statement for the record, Mr. Chairman.
        I would, in my brief statement, wish the Secretary Happy
    Birthday tomorrow. I have been told that somewhere around 51 or
    52 is the appropriate age. But Happy Birthday. We wish you many
    more. And if Senator Bidden really cared about you, he would
    have baked a cake I think.
        Senator Biden. We still have time, Mr. Secretary. Look, the
    cake has already been baked. I remember he used to come up here
    and everybody would say, ``Kissinger, what are you doing?'' Now
    everybody comes up and says, ``Mr. Secretary, it is so good to
    see you.''
        So, he has gotten his cake. He has been through a lot over
    the years before this committee, although he always has given
    more than he has taken.
        Senator Hagel. Senator Biden has just finished my
    statement. So, thank you, Mr. Secretary.
        The Chairman. You finally get a chance. You may proceed,
    Mr. Secretary.

      STATEMENT OF HON. HENRY A. KISSINGER, CHAIRMAN, KISSINGER &
                        ASSOCIATES, NEW YORK, NY

        Dr. Kissinger. Mr. Chairman, before I turn to my testimony,
    I would like to pay tribute to Admiral Bud Nance, whom I had
    the honor to meet as your chief of staff and who then became a
    good friend. Our country needs leaders who reflect about the
    national interest without partisanship, who dedicate their
    lives to the service of their country. There is nobody more
    fair-minded, more knowledgeable than Admiral Nance. He was, in
    addition, a remarkable human being, whom I miss personally, but
    I know how much more he must be missed by those who have been
    his friends since childhood.
        The Chairman. Thank you very much. That means so much to me
    personally, and I know his family will appreciate it.
        Dr. Kissinger. Now, Mr. Chairman, since Senator Biden has
    pointed out he has read the statement, I will not read my
    statement again unless you wish me to. And I will just sum up
    my views so that we can turn to questions.
        I would like to point out that I have not studied the
    treaty recently and I am no technical expert on which weapons
    system is the most suitable. In preparation for this hearing, I
    tried, and I did get myself briefings from various groups. I
    have talked to those involved with the various studies that
    have been made, including Don Rumsfeld and the Heritage
    Foundation study. But the thrust of my remarks will deal with
    the strategic and geopolitical environment and not with the
    technical aspects of the treaty, though I will be glad to
    respond to questions insofar as I can.
        I have been in a complicated position with respect to the
    ABM Treaty. So long as I have been writing on strategic issues,
    I have been deeply worried about the doctrine of mutual assured
    destruction. When I came to Washington as Security Adviser, I
    looked at the estimates of damage in a nuclear war on both
    sides. I am speaking here very informally. This is obviously
    not part of my statement. I called up the former Secretary of
    Defense McNamara, and I said, what are they holding out? What
    is it that they are not showing me, because there has got to be
    something else? Because we cannot risk the future of this
    country on such casualty figures and on such risks. He said,
    well, I never meant to carry it out, which is what he has
    repeatedly said publicly since then. Well, that is a very
    dangerous strategy.
        We then tried to modify in an environment of no defense,
    and we just found that there was no way to reduce casualties to
    what could be described as an acceptable level even by the
    widest stretch of the imagination.
        So, I have always been extremely uneasy--and I have said so
    repeatedly and in all my writings--about the doctrine of mutual
    assured destruction. That doctrine, briefly stated, is that if
    one can keep the level of damage to both sides above a certain
    level--not below a certain level, above a certain level--
    neither side would ever go to a nuclear war. Therefore, the
    best guarantee for peace was the certainty of the destruction
    of one civilization and maybe of human life on the planet as we
    have known it.
        This is an absolutely unprecedented concept and it violates
    one of the basic reasons for the existence of government in
    general in the history of mankind--which is to improve the
    security of the people under their charge. So, intellectually I
    have always opposed this concept, and I have looked for limited
    applications of force and a better relationship between force
    and diplomacy. In fact, my personal preference was always for
    missile defense.
        When President Nixon took office, he recommended a system
    of 12 ABM sites designed to prevent light attacks, of a
    protection against light attacks, accidental launches, and
    emerging third countries. And this concept passed with one
    vote, the Vice President's, in I think 1969 or early 1970. It
    faced violent opposition because the doctrine of mutual assured
    destruction had captured most of the intellectual community and
    most of those who were working on arms control.
        The arguments that have persisted for 30 years now began
    evolving then: one, that the system made war more likely; two,
    that it would not work. It was both destabilizing and would not
    work, even though both of these propositions could not be true.
    A lot of ingenuity was devoted to showing how one could
    penetrate it.
        Now, our view was that it is true, of course, that a system
    that protects against light attack can, by definition, be
    overwhelmed by a large attack. But we thought that even if an
    adversary were forced into a substantial attack, this would be
    a much less likely risk for him to take than to try just one or
    two missiles which would assuredly get through. Of course, the
    third country problem is self-explanatory.
        This was during the period of the Vietnam war and it was
    not a technically effective system. In the bitter debates of
    that period--in which the defense budget became a surrogate for
    other issues--the number of sites for the system was reduced
    each year. So, what started out as a 12-site system was reduced
    to a 2-site system by 1972.
        It was at that point, in early 1972, that President Nixon
    decided, with my strong concurrence, that, before we lost the
    whole concept, we would be better off saving what we could and
    limiting the Soviet Union. It was not our preferred strategic
    and geopolitical choice. Nevertheless, in a two-power world,
    mutual assured destruction had a significant plausibility, and
    I respect the serious people who held the view even though I
    disagreed with it.
        But we are now in a different world. Nuclear weapons are
    clearly spreading. Secretary Cohen has testified before this
    committee--I believe on January 20 of this year--that when he
    confirmed the findings of the Rumsfeld Commission, ``we are
    affirming that: there is a threat, and that the threat is
    growing and that we expect it will soon pose a danger not only
    to our troops overseas but also to Americans here at home.''
        Therefore, however valid the reasoning was in the 1970's
    and however much mutual assured destruction may have been taken
    seriously at that time, I do not believe mutual assured
    destruction can possibly work in a world of many nuclear
    powers. And frankly, I do not think it could work over an
    indefinite period of time in a world of two powers. But this is
    now an esoteric issue because we will not be facing it. We will
    face a different one.
        I also have always been concerned about the position of a
    government that leaves its population defenseless by a
    deliberate policy choice, when demonstrably, other choices are
    available. If the judgment turns out to be wrong and mutual
    assured destruction does not work and if then massive damage
    from a nuclear attack were to occur--or any significant damage
    from a nuclear attack--how would such a government explain to
    the American people that, knowing a technology was available
    that might have resisted it, it deliberately rejected it for
    the sake of theories that were surely esoteric?
        Therefore, when President Reagan proposed the SDI, I was
    among those who supported it. And I was influenced by a group
    of scientists who came to see me to ask me to join them in
    opposing it by giving me a lot of evidence that proved that, if
    the Soviet Union launched an all-out attack, it would overwhelm
    the SDI system. And that was surely true.
        When I asked these scientists what would happen if they
    launched--I forget now how many--50 missiles, 100 missiles--it
    became apparent to me that the system might work quite well at
    low levels of attack and would require an increasingly higher
    level to be overwhelmed. And I thought even that was
    significant progress if the opponent could be forced into
    making a massive decision and could not use it in a limited
    way.
        Be that as it may, I believe there is now a consensus in
    the United States: one, that we need missile defense for
    theater defense; second, that the principle of a national
    defense seems to be more or less accepted, including by the
    administration. The issue is whether that defense should be
    within the framework of the existing ABM Treaty or whether it
    should proceed unconstrained by the ABM Treaty.
        There are many questions about the ABM Treaty, including
    whether the entities that signed it still exist and whether it
    is, therefore, still valid.
        I believe that we should proceed with the development of
    the best technology for the defense of the United States and
    for theater defense, including our allies. I would recommend
    against having the research constrained by the treaty. Now,
    there is again some dispute on whether the treaty prevents
    development or whether it prevents only deployment. I would
    certainly be in favor of proceeding with unconstrained research
    into the best available technologies and then making the
    decision on the basis of what is most suitable.
        Is it possible to negotiate a modification of the ABM
    Treaty? Well, since the basic concept of the ABM Treaty is so
    contrary to the concept of an effective missile defense, I find
    it very difficult to imagine this. But I would be open to
    argument, provided we do not use the treaty as a constraint on
    pushing forward on the most effective development of a national
    and theater missile defense. I believe we owe it to the
    security of our country.
        I regret that this is happening at a time when our
    relations with Russia are overloaded with a lot of other
    problems. There is no Soviet Union anymore. But I think our
    relations with Russia, as I pointed out in the article to which
    Senator Hagel was friendly enough to refer, needs a realistic
    basis of mutual interests, and it does not serve either side to
    pretend to an arrangement that, in the end, threatens the
    populations of both sides.
        Now, this in essence is my view which I expressed in
    greater detail in my formal statement and which I would like to
    put before this committee. It is a feeling I have had for 30
    years about the concept of mutual assured destruction, a
    conviction that leaves no other choice except to take a
    position which is going to hurt many people who were associated
    with the evolution of this treaty, who feel strongly about it
    and whom I respect.
        Thank you, Mr. Chairman.
        [The prepared statement of Dr. Kissinger follows:]

                 Prepared Statement of Hon. Henry A. Kissinger

        I would like to thank the Committee for the opportunity to testify
    on the ABM treaty and missile defense.
        Let me begin with some qualifications. I am not a technical expert.
    I have not had the opportunity to review the provisions of the treaty
    in detail. But I have thought about the political and strategic
    implications of missile defense and the impact of the ABM treaty on it.
    And the ABM treaty was negotiated under my general aegis during the
    Nixon Administration. Therefore let me explain my general view about
    missile defense, how the ABM treaty came to be negotiated, and where in
    my view we are now in a general sense with respect to it.
        I was always uneasy about the doctrine of mutual assured
    destruction. The first responsibility of government is to provide for
    the security of the people. To the extent the U.S. has the ability to
    provide for the defense of the country, it would be a dereliction of
    duty not to do so. I cannot accept the proposition that we contribute
    to peace by exposing our population to vast and foreseeable dangers as
    an act of policy. I cannot imagine what an American President would say
    to the American public if there should be an attack, and if he would
    have to explain that he did nothing to prevent or defeat the resulting
    catastrophe. I think the legitimacy of government would be threatened
    if such a condition existed. So, for all these reasons, I have been an
    advocate of missile defense ever since I entered government.
        Then how did the ABM treaty come about? When President Nixon came
    into office, one of his first acts was to propose an ABM system. It was
    based on much more elementary technology than now exists, but it
    provided for twelve defense sites circling the United States and was
    put forward with the argument that it would disabuse the Soviets of any
    temptations to risk a limited nuclear attack, prevent third country
    attacks, and protect against an accidental missile launch.
        But then we faced various oppositions from groups dedicated to the
    theory of mutual destruction. One group maintained that the ABM system
    would not work. Another group said that it would be destabilizing.
    Though the criticisms contradicted each other, they affected the
    Congress. As a result, in every Congressional session, the number of
    defense sites was reduced. By 1971, Congress had whittled the proposed
    ABM system down to two defense sites. And it was clear that these last
    two sites would be under pressure in every budgetary cycle thereafter.
        Limiting an ABM system to only two sites did not make any strategic
    sense. And by that point, the Joint Chiefs of Staff did not want to
    spend scarce resources on what they considered to be an essentially
    useless enterprise. We negotiated the ABM treaty because we wanted to
    get something for what the U.S. Congress was going to do anyway--kill
    the ABM program. The Soviet Union was expanding its military strength
    and our Congress was cutting back U.S. military strength. And it was
    under those conditions that we thought we would put a ceiling on the
    ABM in order to limit the Soviet ABM system, which Moscow had already
    started to build. We also used the ABM treaty to extract concessions
    from the Soviet Union in the SALT talks.
        I never felt comfortable with the ABM treaty. But there was nothing
    we could do about it because the defense budget was being cut deeper
    each year by Congress. It was not really until the advent of the Reagan
    Administration that a plausible technology for strategic defense
    existed. As soon as Reagan put forward his 1983 Strategic Defense
    Initiative, I supported it. And I continue to support a missile defense
    for the same reasons.
        When President Reagan put forward his SDI proposal, a group of
    concerned scientists came to see me in order to get me to join them in
    opposition to it. And they made the traditional arguments--first, that
    it was destabilizing and secondly, it wouldn't work--despite my
    difficulty in grasping how it can be both. When I asked them to explain
    to me the mechanics of how and why they believed it would not work at
    various levels of attack, it was plain that at a fairly low level of
    attack involving several hundred warheads, it worked fairly well, but
    became degraded only as more and more warheads were added to the
    attack.
        That seemed to me to strengthen and not weaken the case for missile
    defense. In the absence of missile defense, penetration becomes totally
    predictable--a simple question of mathematics. But it is different even
    when there exists even a light missile defense. Since the aggressor
    does not know which of his missiles will get through, as the threshold
    rises the inhibitions to an attack must also rise. And in the Soviet
    case, I always felt that if they knew that they would have to launch
    several hundred missiles in order to get a significant number through
    the missile defenses, that was a lot safer for America than if they
    knew that any missile that they launched was bound to get there.
        The circumstances that existed when the treaty was drafted and
    agreed to were notably different from the situation today.
    Specifically, the current threats, as set forth by our Ballistic
    Missile Threat Commission, have moved us into a new national security
    environment, one that was not even considered, let alone anticipated
    when the ABM treaty was signed. The country that signed it, the USSR,
    has disappeared as a legal entity. Missile technologies have evolved in
    sophistication. The acceleration in the proliferation of ballistic
    missile and WMD technologies are putting capabilities in the hands of
    nations that were not even remotely considered to be candidates to
    possess such destructive power when the agreement was concluded.
        One of the reasons ballistic missiles are attractive to so many
    countries is that there are currently no defenses against them. They
    are almost guaranteed to arrive at their targets. Given their
    destructive power, they are terror weapons by their mere existence in
    the absence of deployed defenses. History teaches that weakness is
    provocative and, in a real sense, the absence of missile defense
    provokes others into seeking such weapons.
        The threat to the U.S. from missile proliferation is real and
    growing. This was underscored last year by the Rumsfeld Commission,
    which stated that the threat posed by a number of hostile Third World
    states ``is broader, more mature and evolving more rapidly than has
    been reported in estimates and reports by the Intelligence Community.''
    Further, the Commission stated that ``the U.S. might well have little
    or no warning before operational deployment'' of missiles capable of
    reaching U.S. territory by these same states.
        Secretary of Defense Cohen confirmed the findings of the Rumsfeld
    Commission on January 20, 1999, when he stated, ``. . . we are
    affirming that there is a threat, and the threat is growing and that we
    expect it will soon pose a danger not only to our troops overseas but
    also to Americans here at home.''
        All of us need to recognize that at some point, and admittedly some
    will differ on where this point is, the ABM treaty constrains the
    nation's missile defense programs to an intolerable degree. Secretary
    Cohen, also on January 20, stated that the Administration recognizes
    this fact and will require modifications to the treaty. He also
    suggested that if an agreement on this issue, presumably with the
    Russians or others, could not be obtained, then the U.S. would consider
    withdrawal.
        I share this view. Quite apart from the legal arguments that are
    made by experts as to the possibility that with the end of the USSR the
    treaty technically may no longer be in force, the treaty was signed
    with an eye to an environment that simply does not exist today.
        For these reasons, I believe that it is strategically and morally
    necessary to build a missile defense. Strategically, because of the
    proliferation of weapons of mass destruction and the missile technology
    to deliver them. Morally, because the doctrine of mutual assured
    destruction, which I have opposed in my writings for at least thirty
    years, is bankrupt. It may have had a limited theoretical sense in a
    two-power nuclear world, but in a multinuclear world, it is reckless.
        There seems to be an emerging consensus regarding theater missile
    defense which I favor--though its specific geographic applications
    require further consideration.
        I would also favor the deployment of a nationwide missile defense
    system as soon as technologically possible. An impressive array of
    technical options cannot be adequately explored until we solve the
    problem of ABM treaty restrictions on development and testing. We need
    to find a way to end the restrictions the ABM treaty impose on the
    research, development, testing and deployment of missile defense
    systems as soon as possible.
        I have no clear view how to handle the ABM treaty, except that I
    would not let it stand in the way. First, it is possible to argue that
    the ABM treaty was made with an entity that no longer exists. It is
    also possible to use the abrogation clause in the ABM treaty, but I
    think that is not the key issue.
        The key issue is whether it should be a national policy to build a
    missile defense. The battle lines are already forming along the same
    issue--whether the missile defense system will work. There always will
    be those who make the claim that a tremendous system is coming along
    five years down the road, at which point, those same people will argue
    that there is an even better one coming along five years after that. So
    there will never be a ``right time'' for deployment.
        Therefore, we need to get about the task of developing and
    deploying ballistic missile defenses that are the most cost effective
    and the most technically capable of deterring and defending against
    these new threats, and doing so without inhibitions from the treaty.
    There is ample time to conduct the necessary negotiations since the
    shape of the system is still under consideration, and no violation
    would occur until deployment. There are two qualifications: (1)
    Research must proceed immediately and not be delayed pending
    negotiations, and (2) Deployment must take place as soon as a system is
    chosen. To the extent the Russians do not agree to the necessary
    amendments, the alternative is to exercise our right, as provided in
    the treaty, to extend six months' notification that we intend to
    withdraw from the treaty.

        The Chairman. Before we begin questioning, I wonder if
    Senator Frist has a statement.
        Senator Frist. No, sir, I do not, but I will participate in
    the questioning. Thank you.
        The Chairman. You were very clear in what you said, Dr.
    Kissinger. I agree with what I understood to be your message to
    this committee and therefore to the Senate. The ABM Treaty, you
    were saying, must not be allowed to stand in the way of missile
    defense. That was the predicate and the basis of your comments
    I believe.
        Now, you have talked about the possibility of amending or
    abrogating the treaty to render it harmless, and if it came to
    that, Senator Biden, I would support that. I just do not want
    it to be harmful to the defense efforts of the United States.
        I think I should call a little attention to the hearing
    yesterday, chaired by the distinguished Senator from Missouri,
    Mr. Ashcroft. They examined the legal status of the ABM Treaty
    and the clear conclusion, according to the constitutional
    lawyers who testified yesterday, is that the ABM Treaty lapsed
    with the demise of the Soviet Union. Now, this is a critical
    legal point that has some legitimate debate one way or another,
    even though I am pretty firm in my position on it, because it
    means that the agreement being peddled by the administration is
    actually an agreement to revive the ABM Treaty with four new
    partners: Russia, Belarus, and the other two.
        Now, if this is the case, it raises the stakes on the
    significance of a Senate vote on the MOU on succession. The
    defeat of the MOU literally would mean defeat of the
    administration's efforts to reconstitute the treaty. Under such
    circumstances, Dr. Kissinger, would you, nevertheless,
    recommend that the Senate reject the MOU, the memorandum on
    succession?
        Dr. Kissinger. Mr. Chairman I frankly have not thought this
    problem through, so I am answering off the top of my head. As a
    general proposition, I am not in favor of attaching new
    significance to the ABM Treaty, and I would favor a four-power
    arrangement only if we could renegotiate the treaty in a manner
    that is compatible with what I have outlined, if that is
    possible.
        The Chairman. Well, that is an important distinction
    between what some are saying and others are saying.
        Dr. Kissinger. That would be my instinct in dealing with
    that.
        The Chairman. You mentioned I believe the Rumsfeld
    Commission which has warned that North Korea and Iran--and I
    quote the commission in its report--``would be able to inflict
    major destruction on the United States within about 5 years of
    a decision to acquire such a capability.''
        Now, I suppose you share the alarm at North Korea's launch
    of the TD-1 missile with an unexpected third stage. Similarly,
    according to press accounts, Iran has test fired a Scud missile
    in a ship-based boat.
        I guess what I want to ask you is, are you concerned that
    unless we break ground soon on a national missile defense, that
    the citizens of the United States could be put in serious peril
    within the next 5 years?
        Dr. Kissinger. I believe we should create a national
    missile defense as soon as it is possible to do so with a
    system on which there exists a consensus. And I think it is
    dangerous when people say--I have heard it said--we can wait
    until these capabilities exist. One could also make the
    argument, however, that if no defense exists, the easiest way
    for many countries to threaten the United States is to acquire
    a rudimentary long-range missile capability. So, one could
    argue that a national missile defense is a deterrent.
        My basic view is that we should make it clear we are moving
    to a national missile defense as soon as possible. How we
    achieve consensus on what is an effective defense I do not
    know, but it must be possible to constitute panels, like the
    Rumsfeld Commission, of technical experts who give us
    conclusive advice.
        The Chairman. Well, I guess what I am driving at is, how
    much delay will be suitable or not objectionable? I am asking
    the question, should we allow negotiations with Russia to delay
    our deployment or development of a U.S. missile defense?
        Dr. Kissinger. Mr. Chairman, I start from the premise that
    we cannot envisage a concept in which we have no missile
    defense. Therefore, we should avoid a negotiation that leaves
    open no defense as an option. Also I would not encourage using
    negotiations as a means of protracting the final decision.
        So, I would try to reduce the deployment of ballistic
    missile defense for the United States to a technical question,
    at which point technical people in whom both sides of the aisle
    have confidence should consider whether the time has come to
    deploy it. And at that point, we should do it and either manage
    a way to renegotiate the treaty, or propose abrogating the
    treaty under the abrogation clause--which, after all, must have
    envisaged circumstances totally different from the ones that
    existed then.
        The Chairman. Well, if I ask another question, it will
    overrun my time. We have 7 minutes and I have used 6\1/2\ of
    mine. You will proceed, please, sir.
        Senator Biden. Thank you, Mr. Chairman.
        Mr. Chairman, are we going to get a chance to maybe have a
    second round?
        The Chairman. Sure.
        Senator Biden. Because I cannot think of anyone whose
    testimony is, quite frankly, more important or more relevant.
        Mr. Secretary, you are not here to testify as to the
    legality of the ABM Treaty. The only thing I may know almost as
    much as you about is the Constitution and the treaty power. I
    would take issue with the proposition that the ABM Treaty has
    automatically lapsed. I say that not for your response, but
    just for the record.
        Dr. Kissinger. I had trouble hearing this last part.
        Senator Biden. I believe that under our Constitution and
    the requirement of the President to take care that the laws are
    enforced, and his power of recognition of successor States, the
    break-up of a treaty partner would in fact not cause the treaty
    to lapse. I just want the record to state I disagree with the
    chairman's statement and the statement of some of the scholars
    yesterday.
        For example, we did not require new treaty arrangements
    with the breakup of Yugoslavia, or regarding the CFE Treaty. We
    did not conclude that successor states could not be successor
    states and recognized by the administration. We seem to have
    reserved that concern totally for this issue; but that is
    another question.
        I have some specific questions, but because you are better
    than anyone I know--and I mean this sincerely--at putting
    things in context. My fundamental problem with missile defense
    as an alternative to the doctrine of mutual assured destruction
    rests on two points: first, we need a system that can do the
    job. Are we giving up something to get something better?
    Because I agree with you that the doctrine makes one, at a
    minimum, uncomfortable, knowing that this notion of mutual
    assured destruction is the basis upon which our ultimate
    security rests. But the first concern is, do we have something
    that can do the job.
        The second is, how do we get from here to there? It would
    be one thing if the Lord came down and sat here on this dais
    and said, look, we have a system that works and we can put it
    in place tomorrow. No problem. I do not have any problem with
    that because then there would be no legitimate worry about the
    instability that I fear would be potentially created if there
    were a long lead time for putting in the system--as, indeed,
    there is in real life.
        So, what I am trying to get at is this. In a generic sense,
    I want you to talk about how these pieces fit together. The
    Soviet Union does not exist. Russia does. It is not as powerful
    as the Soviet Union but it still has all their nuclear weapons.
    It still has the capacity to devastate civilization, let alone
    the United States.
        So, what do you see, not in terms of not wanting to offend
    Russia, or not wanting to complicate the relationship, or any
    of the things you hear some people talk about, but in stark
    terms, if you are sitting in Russia? The United States
    abrogates--and I am not suggesting you said we should do that
    immediately, but the United States concludes that it should
    abrogate the ABM Treaty and is going for a nationwide missile
    defense system that we are going to commit billions of dollars
    to build--and I believe we could probably do it if we commit
    the resources to it--whether it is a space-based, sea-based,
    land-based, or multiple-based system.
        What happens today and next week and next year, in your
    view, within Russia as it relates to the judgments they will
    make relative to the arsenal that they now possess and their
    willingness to bring those numbers down, or their inclination
    to try to increase the numbers to overwhelm a ballistic missile
    defense system? What do you think goes on over there?
        Dr. Kissinger. Let me first go back to what influenced me
    so greatly in my attitudes, and it was this. When you are
    Security Adviser and Secretary of State, you are going to be
    one of the two or three people that will be asked, if there is
    time, whether nuclear weapons should be used. And in the two-
    power world in which I functioned, that was my permanent
    nightmare. What would I say if the moment of truth arrived?
        At the same time, if you look over our actions, in crises
    we escalated very rapidly because we wanted to raise the level
    of risk to the highest level possible because we were afraid of
    going too slowly. So, if you look at the alerts of 1970 and
    1973, we were face to face with this, and I thought that this
    was something I would not wish on an indefinite line of
    successors, either of Presidents or of people in my position. I
    frankly asked myself, if we survive, if I survive, what are we
    going to say about how this happened? And yet, I had to do it.
    I mean, when we thought the Soviets would go into the Middle
    East, we went on alert. We went on alert twice when I was
    there, and President Nixon was extremely courageous in doing
    this. So, this has affected me.
        Now, the debate is usually put in terms of, does it work
    perfectly or must it work perfectly to be useful at all? I
    think if one can raise the entrance price, it will reduce the
    temptation to lob a few missiles. I thought that was useful and
    therefore I supported President Reagan's SDI.
        That was not your question, though. Your question was what
    is the attitude in Russia.
        My view about our current relations is that we have placed
    too much emphasis on a sort of psychological approach in which
    we attempt to influence the domestic structure of Russia and
    pay too little attention to the fundamental problem that Russia
    faces as a nation. It has had 400 years of imperialism. This
    has been the essence of Russian foreign history, partly of
    being invaded but also partly of expanding. Now they are back
    to their territories at about the time of Peter the Great, when
    it all started. So, now they have to get used to this
    environment.
        It seems to me that really nothing is more important than
    to see whether, as nations, we can feel comfortable, both of
    us, in such an environment. I actually believe that if Russia
    acts as a nation and stays within its existing borders, there
    is no reason for the United States to have any significant
    conflict with Russia.
        Then the question is, should Russia view its capacity to
    launch a totally devastating attack on the United States as a
    significant factor in our relationship? If the issue is no
    longer world domination--or whatever one calls the ideological
    conflict--I do not believe they would need to think of it in
    those terms. I, therefore, believe not in a negotiation on how
    to amend the treaty, but in a real strategic dialog that treats
    the Russians as adults and not as subjects that we educate
    entirely to our point of view. That might lead to a situation
    where they no longer feel that they must have this capacity to
    penetrate.
        I am more concerned about third countries, frankly, than I
    am about Russia in the nuclear equation of the future.
        But I do believe that we need a strategic dialog with
    Russia, not about the treaty----
        Senator Biden. I understand.
        Dr. Kissinger [continuing]. But about our basic
    relationship, and I think we have been remiss in this.
        Senator Biden. I will come back, Mr. Chairman. Thank you.
        The Chairman. Senator Hagel.
        Senator Hagel. Mr. Chairman, thank you.
        Following along the same path here, Mr. Secretary, that you
    and Senator Biden have been discussing, you mentioned in your
    remarks the importance of dealing with Russia, I believe what
    you said, in a way that would be based on mutual interests. It
    seems to me, picking up on the last 60 seconds of your
    response, this surely should be our approach working with the
    Russians. You just mentioned Third World countries. The
    Russians too are going to be dealing with this as they are
    today. No borderless challenges in the world.
        I was in Russia in December. I met with General Lebed and
    others. When I asked General Lebed the question what he
    considered the most significant challenge to Russia, he said it
    was not NATO. It was not the West, but he said it is probably
    two things. One is fundamentalism coming from its southern
    borders, and two, China.
        If in fact the grounding of your sense of this is correct--
    and I believe it is--then what would be the course that would
    take us through the process working with the Russians on trying
    to come together with some mutual interest, understanding and
    dealing through the complications of the 1972 ABM Treaty with
    this very clear premise that they must understand? No sovereign
    nation will ever allow the security of its nation to be held
    hostage to any other foreign policy, and second, as you know
    very well, the will, the commitment, and the technology, all
    connected, must be clearly understood by our friends and our
    adversaries that we will use all of them together.
        So, I would be interested in your taking this a little
    further in what you started in your conversation.
        Dr. Kissinger. Right now we are in a very difficult
    relationship with Russia because the Kosovo crisis--or the war
    with Yugoslavia--is deeply humiliating to Russia. Serbia has
    been its historic ally. I know there was this interlude in the
    Tito period but, historically, World War I started because
    Russia would not let Serbia go down.
        If one looks at history, in 1908 there was a Bosnia crisis
    in which the Germans decided they would humiliate Russia in
    order to break the Franco-Russian alliance, and they succeeded.
    They did not break the alliance, but they humiliated Russia.
    But 6 years later, it guaranteed that Russia dug in and
    contributed to the war.
        Now, I am assuming this Yugoslav crisis will end during the
    summer in some fashion. I do not think, frankly, Russia can
    make a huge contribution to settling the crisis because its
    interests are different from ours. We want NATO to come out of
    it as intact as possible, and they would not mind NATO being
    weakened as a result of the crisis.
        But once that is behind us, I believe we have a whole range
    of issues to discuss with them: the future of Central Asia, the
    future of their relations and our relations with the
    constituent republics of the former Soviet Union, actions in
    the Third World that might affect the general equilibrium. And
    I think it is in our interest to treat Russia as a major power
    which will be taken seriously--and automatically seriously--and
    is made part of a general system of political consultation. If
    you read many of the speeches we make in Russia, they are
    usually sort of trying to convert them to our basic theories.
    One must give them an opportunity to participate.
        On strategy I would also say that we cannot be without a
    missile defense in order to make them happy, and it is not good
    for them. If we made that clear as a constituent element, I
    believe the Russians would adjust to it. I do not think that
    the nuclear balance is the most worrisome thing to the
    Russians. I believe their loss of perceived influence in areas
    where they have traditionally been active is what concerns
    them. It is possible for us to give some of this back to them
    by taking their views seriously.
        I believe, for example, that when the Yugoslav crisis is
    over, if we do not want to be having occupation forces all over
    the place, some political settlement of the Balkans will have
    to be negotiated. And in that I think Russia could play a role.
        Senator Hagel. Thank you.
        The Chairman. Senator Frist.
        Senator Frist. Thank you, Mr. Chairman.
        Dr. Kissinger, one of the issues that we consider again and
    an issue that has been one of the more contentious issues
    before this committee since the beginning of the 104th Congress
    has been the issue of arms control agreements. I am interested
    in how you view, if you step back, the overall value,
    usefulness, utility of arms control agreements and how you
    believe that the United States should today view them.
        Dr. Kissinger. Well, if you look at the evolution of the
    arms control discussions, in a lot of which I participated,
    when the destructiveness of nuclear weapons first became
    apparent in the early 1950's and when they were being built
    into the nuclear systems, the first reaction of the academic
    community and of the people who were thinking about this was to
    find a more limited way of using nuclear weapons than the
    doctrine of massive retaliation. In fact, if you go back to the
    early 1950's, at the Lincoln Laboratories at MIT, there was a
    lot of emphasis put on air defense as something to which
    strategic emphasis should be given.
        Then, as the 1950's developed, the doctrine of defense was
    jettisoned, and emphasis was placed on arms control in order to
    prevent arms races from spiraling out of control. I
    participated in many seminars that were addressed to this, and
    within the context of that period, I believe they performed a
    useful role in educating our side, and both sides, to the
    implications of nuclear war.
        The trouble was that technology was moving much faster than
    concepts of arms control. So when we started, for example, on
    the first arms limitation agreement, they were single warheads.
    By the time one got to SALT II, the problem was MIRV's. There
    were so many more warheads, even with the arms control that had
    been created, that the environment that had been considered
    highly dangerous with single warheads was now superseded even
    by arms control. Now even the lowest level they are talking
    about is twice and three times larger than what existed under
    SALT I conditions.
        It is very difficult with any conceivable arms control
    system to reduce the numbers to a level at which huge damage
    cannot be inflicted. So, as a participant in these discussions
    and one who was involved in the SALT negotiation I believe that
    they performed a useful role in educating us and, to some
    extent, in calming the environment. Although if you analyze
    what was actually done, both sides used arms control to
    legitimize the programs on which they had already internally
    agreed. SALT I was madly controversial, but you will not find
    one program that was canceled as a result of SALT I. Therefore,
    I think it was more useful as an educational process than
    anything else.
        But under present conditions, when you do not have one
    super power confronting you, the issue is much more
    complicated.
        Senator Frist. Although we do not want to focus on any one
    area, but with regard to the Comprehensive Test Ban Treaty,
    could you just share your thoughts whether it has any value
    today in our overall defense strategy either on its own or as
    part of a larger package of arms control agreements?
        Dr. Kissinger. Well, I have not really studied this in
    detail. I think we have an arms control objective and must
    prevent the proliferation of nuclear weapons. Anything that
    makes it more difficult to develop more nuclear weapons I would
    in principle favor. But then one has to weigh this against the
    constraints it places on us. But the prevention or the slowing
    down of nonproliferation is an arms control objective to which
    we should pay a great deal of attention.
        Senator Frist. Thank you, Mr. Chairman.
        The Chairman. Well, we are on the horns of a dilemma,
    though, Dr. Kissinger. There are so many things that we are not
    sure about, our intelligence lacks the capability to inform at
    least the Senators in the controlled circumstances of room 403
    of the Capitol.
        For example, the black market that countries such as Russia
    and Ukraine now participate in. It seems to me that they may be
    facilitating the spread of ballistic missile capabilities, but
    I am not sure about it. What do you think?
        Dr. Kissinger. I am not familiar with accusations that
    Ukraine is helping the spread of nuclear missile capability. It
    does appear that Russia certainly has contributed to it, and so
    has North Korea and at various stages China.
        The Chairman. Well, did we have the same level of concern
    over proliferation versus criminal elements during the cold war
    as we have now, more or less? It is a different ball game now
    because you cannot put your finger--it is sort of like trying
    to pick up a little bit of mercury in a saucer. You cannot
    really know what you are talking about based on the limited
    intelligence we are able to get and how much it is delayed in
    the case of China, for example.
        Dr. Kissinger. Well, I think we should have a great concern
    about proliferation.
        The Chairman. Yes.
        Dr. Kissinger. Nobody is more dedicated to friendly
    relations with China than I am, but I have always made clear to
    China that nonproliferation has to be a key element in good
    relations between China and the United States.
        The Chairman. Well, that was going to be my next specific
    question. What do you make of the relationship between Russia
    and China in terms of proliferation? Was Russia providing this
    degree of assistance to China at the time the ABM Treaty was
    negotiated, or do you recall? Or did it come up?
        Dr. Kissinger. At the time the ABM Treaty was negotiated,
    we were quite sure that there was enormous hostility between
    Russia and China because the Soviet Union at the time was
    increasing its military forces on the Siberian border to about
    42 divisions. Our strategy toward China was premised at that
    time on the proposition that they felt extremely threatened by
    the Soviet Union.
        The Chairman. Well, then you have worry about China's
    involvement in the India-Pakistan difficulty. I have not been
    able to put my fingers, based on the evidence available to me,
    on the impact of that. What do you think of that?
        Dr. Kissinger. Well, my impression is that this has stopped
    now. I suspect, if I have to interpret Chinese thinking there,
    that they do not want India to be the only nuclear power on the
    Indian subcontinent and that they want to create a balance of
    power so that the whole thrust of the Indian nuclear program
    cannot be aimed at them. This is not anything the Chinese have
    said to me, but this is my interpretation of why the Chinese
    have done what they have done in Pakistan. I do not believe
    that is aimed at us.
        The Chairman. I am going to pass for the time being and
    give the ball to Senator Biden.
        Senator Biden. Thank you, Mr. Chairman.
        Mr. Secretary, back to the Russian component. I want to
    make it clear I am not suggesting Russia should hold anything
    that we should do hostage. We should decide what is in our
    interest and do it.
        One of the conundrums we face, though, is that
    notwithstanding what you said about the need to put our
    relationship on a more realistic footing, the fact is they
    still have over 6,000 very sophisticated nuclear weapons easily
    able to be aimed at and strike us with hard kill capacity. They
    still have their MIRV'ed systems.
        There are two things I would like to explore with you.
    Again, I have specific questions, but I always find it more
    beneficial to let you talk, because you connect the dots so
    well.
        One is that I can envision it being clearly in Moscow's
    interest to amend the ABM Treaty to accomplish two things:
    first, give them some sense of security and symmetry, which
    they are fixated on and have been for as long as I have been
    here; and second, gain some access to a defensive capacity for
    themselves. I could wave a magic wand, I would like to see us
    get on beyond START II to START III, get the numbers down
    around 1,000, and move the limited ballistic missile defense, a
    thin shield, to Russian soil to give them the benefit of that
    along with us.
        All the scientists who come before us indicate that a thin
    missile defense, what you are talking about now, has some
    potential, but also real problems. The surest way to deal with
    North Korea, they point out, would be to have a boost phase
    interceptor that was located in Russia near Vladivostok. That
    would be the surest way to kill a launch of a North Korean
    missile heading toward the territory of the United States or
    anywhere, for that matter.
        Dr. Kissinger. Or on American ships.
        Senator Biden. Or on American ships.
        Now, one of the questions I have is beyond this missile
    defense, in addition to a missile defense, it seems to me there
    is a fair amount of room for some imaginative diplomacy. I can
    picture you being able to put together--and I mean this
    sincerely--a combination of reassurance to the Russians that
    would allow them to continue to bring down the number of
    nuclear weapons at their disposal rather than build them up,
    and to eliminate their MIRV'ed systems, which I think is a
    significant breakthrough, if we could get it done in the Duma,
    and us building a missile defense system that is the one we
    have been discussing thus far.
        I guess what I am trying to get at here, in as a roundabout
    way as I can because I cannot think how to do it directly, is,
    were you putting together the strategic approach to Russia now,
    in addition to this overall and important sort of altar call
    that we may require to have here between Russia and the United
    States relative to how we will deal with one another across the
    board, how would you be trying to move the missile defense
    system without exacerbating the instability that exists in
    Russia? And I assume you would desire to continue to have the
    number and types of nuclear weapons at Russian disposal come
    down, rather than go up.
        Now, I acknowledge that, given the price of the Russians
    going ahead and building more, you would still prefer us going
    down the track of a missile defense system and damn the
    torpedoes, full speed ahead. But is there a way to do both?
        Dr. Kissinger. I would think that even if you could get the
    Russian missiles down to 1,000, that would only get us back to
    the situation which I found when I came in in 1969 and which I
    really found morally unbearable even though I had to play with
    these weapons.
        Senator Biden. But this would be in combination with a
    missile defense system that you did not have then, but that we
    are talking about now. It seems to me your thesis is a correct
    one, that notwithstanding the fact a missile defense system may
    not be able to be a total nuclear umbrella over the United
    States, the fact that it would require an overwhelming--
    overwhelming--offensive launch to penetrate it would dissuade a
    power like Russia, or anyone else, from engaging in the first
    place. Is there a fulcrum here?
        Dr. Kissinger. We are talking about Russia.
        Senator Biden. Yes.
        Dr. Kissinger. Well, first of all, you apparently would
    agree with me. We cannot make ourselves vulnerable to third
    country attacks just to reassure Russia.
        Senator Biden. Unless we thought Russia was so unstable
    that an attack from Russia may be a greater threat than an
    attack from a rogue state.
        Dr. Kissinger. No. I believe, if you look at it in a
    historical period--let us say 5, 10 years, which is a short
    historical period--there is no reason why Russia and the United
    States need to consider each other as mortal enemies. If the
    proper relationship develops, I believe that the idea of a
    nuclear war between our two countries, as the essence of the
    strategic relationship, could, over a period of time, be
    eliminated, or at least sharply reduced.
        Senator Biden. I agree.
        Dr. Kissinger. We, however, need an adult view of the
    problem. Russia has a different history from ours. Russia has
    felt that it was a major player and therefore we are bound to
    have some adversarial relationships in various parts of the
    world, but not to the point where the idea that one of us or
    both of us would risk the destruction of our societies would
    enter the minds of the next generation of leaders. Therefore, I
    believe it is more important to bring Russia into a dialog of
    how we see the evolutions of, say, fundamentalism, Central
    Asia, and the regions not covered by alliances than some of the
    political science lectures and sociology lectures on which we
    have concentrated. So, this should be in the evolving
    relationship, the key element of the relationship.
        Within that context, I see no reason why Russia should be
    particularly disturbed by the systems that I am proposing
    because I cannot conceive a situation in which Russia would
    launch an all-out attack. But I can conceive, among armed
    forces that have not been paid for a long time and local
    rulers, that somebody may want to take matters into his own
    hands and do the sort of thing which is precisely what I
    believe we should prevent with the national defense system.
        Second, since I also believe in theater based systems, it
    is not natural for us to say we protect our allies more than
    ourselves. I favor protecting our allies equally with
    ourselves, but we are now excluding systems for ourselves that
    we are willing to give to theater defense. And that is not a
    natural state of affairs.
        The Chairman. On top of everything else, Russia's economy
    is in shambles and they just do not have the funds to build a
    missile system.
        Senator Hagel.
        Senator Hagel. Thank you, Mr. Chairman.
        Mr. Secretary, in your opinion where does the Comprehensive
    Test Ban Treaty fit into all this?
        Dr. Kissinger. I really am not adequately prepared on all
    the nuances of the Comprehensive Test Ban Treaty. I am not
    ducking it. I will be glad to come back. I have not addressed
    that issue.
        In my day it was always believed that you could not go
    below a certain threshold with safety. And all the analysis
    that I was familiar with when I was conducting these
    negotiations was based on the belief that you (a) could not
    test below a certain threshold, and that (b) you needed it to
    have confidence in your own weapons. But this is knowledge that
    I have not updated.
        Senator Hagel. Thank you.
        The general theme of the hearing this morning is obviously
    on nuclear weapons, national security, ABM Treaty as the core
    of the hearing. But I think this panel would be very interested
    in getting your sense or whatever you would like to offer in
    regard to what you know about the intelligence breach that has
    provided China with apparently considerable nuclear knowledge
    of our capacity.
        Dr. Kissinger. I only know what I read in unclassified
    sources--I have not been briefed by the administration on what
    they know and what their side of it is. I have talked to
    Congressman Cox, and I have no reason to disbelieve his report.
    In fact, I accept his report.
        The worrisome aspect to me in the report is not that the
    Chinese would try to acquire our nuclear knowledge. As the most
    advanced country in that field, it seems to me we are the
    natural target of the intelligence activities of other
    countries. But what I find hard to comprehend is that our
    security system could be so lax as to permit this. Therefore,
    the indignation or the concern should be focused on fixing our
    system so that it can never happen again and to get to the
    bottom of exactly what happened. This seems to me what must
    concern us and absolutely must be prevented.
        Another aspect we need to think through is that there are
    two levels of criticism being made. One is the theft of nuclear
    secrets. The other is the commercial sale of information that
    is dangerous to spread.
        Again, I am very worried about the deterioration of our
    relationship with China. I think we will pay for this insofar
    as we can control it.
        But I do believe we need a national policy aimed, not at
    China, but at any non-allied country that takes into account
    what technology we are prepared to transfer and what technology
    we must put under some restrictions. I would not aim that
    especially at China. I would aim it in a general way at non-
    allied countries because, given the way commerce moves these
    days, it flows very easily. And for this it seems to me that we
    need a national policy that does not apparently now exist.
        Senator Hagel. Thank you, Mr. Chairman.
        The Chairman. Senator Frist.
        Senator Frist. Thank you, Mr. Chairman.
        Dr. Kissinger, I want to just extend that a little bit
    further, again because you are here and I want to take
    advantage of the opportunity of discussing an issue that we are
    all very involved in with the release of the report yesterday.
    I appreciate your comments on the commercial sale and the
    theft. I want to take advantage of your thoughts on the
    geopolitical ramifications of accepting what the Cox report has
    said in terms of the essence and in terms of the acquisition of
    warhead designs. It clearly has an impact on reliability,
    effectiveness of delivery systems.
        By my question goes to relationships with other countries.
    To me it does not seem that China is on the verge of becoming
    the type of nuclear rival that you are so familiar with
    historically in the Soviet Union. But the new element seems to
    me to be this ability to miniaturize the thermonuclear devices
    and MIRV their ICBM's and, perhaps even worse than that, be
    able to develop the whole submarine launched capability. It
    seems to me that that does forever change the geopolitical
    climate where all of a sudden we are talking not just about an
    Asian theater but a true global theater. Is that right? Is that
    the new element that is being introduced?
        Dr. Kissinger. I believe that as China becomes an
    industrialized country, with or without the theft, some of
    these developments are almost inevitable. Probably if the facts
    are as damning as the report seems to imply--and I do not
    challenge it--that moment in time has been accelerated. I still
    do not think it will be here before 15 years or so because it
    would still have to be translated into a manufacturing
    capability. Even if you know what to do to build them, it would
    seem to me it would take 15 to 20 years.
        Now, this is not your question, but I must say I am
    extremely disturbed by the trend of putting China into the slot
    vacated by the Soviet Union and gearing all of our Asian policy
    to a confrontation with China. That could turn into a self-
    fulfilling prophecy.
        And it is a different problem in Asia from what it was in
    Europe. Communism in China does not claim universal
    applicability. China has neighbors, many of which are quite
    capable of defending themselves. So, it is not an analogous
    situation. I believe that, if we made confrontation,
    unnecessarily, the centerpiece of our foreign policy in Asia,
    we would lose the support of every Asian nation that I know
    anything about and bring about the opposite of what we are
    seeking.
        If China challenges vital American interests, we must
    resist. What I am warning against is the attempt to build
    confrontation into an organic aspect of our policy without such
    a direct challenge.
        Senator Frist. Just a final question. Either in Chinese
    calculations or in our own calculations, even though we are
    talking about 15 or 20 years for full development, does the
    recent development of this acceleration raise the stakes to a
    point that they believe that we would be less willing to
    respond militarily to an invasion of Taiwan in any way? Again,
    I am looking at sort of the geopolitical ramifications.
        Dr. Kissinger. You mean the successful acquisition of this
    technology?
        Senator Frist. Correct.
        Dr. Kissinger. I do not think that the point at which they
    might make that calculation will arise for 15 to 20 years, and
    I believe that what they will think then depends importantly on
    how we both conduct ourselves in the interval. I am warning
    against self-fulfilling prophecies. It requires a balance
    between military capability and political relationships. But I
    am very concerned about the way this relationship is now
    drifting, and I am also concerned about the theft of this
    technology. But those two need not be brought into direct
    relationship with each other.
        Senator Frist. Except that that interval has gotten
    shorter.
        Dr. Kissinger. The interval has gotten shorter. It,
    therefore, makes the conduct of our relationship more urgent.
        Senator Frist. Even more important.
        Thank you.
        Dr. Kissinger. For example, I am not saying we should
    forego theater missile defense to reassure China any more than
    I am saying that about Russia.
        The Chairman. I do not want you to think that your prepared
    statement will not get any attention. It is excellent. I have
    read it. There is much wisdom in it, and I would suggest that
    the folks covering this would look carefully at it because I am
    going to circulate it and it is going to be part of the printed
    record as well, which we will circulate among Senators at the
    time of any action.
        For example, you made the point--and it is a very good one.
    Let me quote you. ``Deterrence during the cold war was based
    upon assumptions of rationality which allowed the United States
    and Russia to predict each other's reactions with a fair degree
    of success. Moreover, communication and the centralization of
    command-control allowed for a mutual familiarity between the
    United States and the Soviet Union over one another's plans for
    reaction in crisis situations.''
        Well, we do not have that. That is one thing that is
    lacking.
        I raised a question with Steve just a minute ago about the
    deterioration of the stockpile of the Russian missiles. We do
    not have any figures on that. Perhaps we do not have any way to
    get it. But Russia is still making, I think, warheads and our
    last one was made somewhere along about 1985 or 1986, somewhere
    at that time.
        Now, Russia is still deploying new ICBM's, the SS-27. And
    we have canceled all of our modernization programs. So, that is
    the thing, among others, that bothers me.
        I do not have another question for you, but I am going to
    see if Senator Biden has. I wish you had not said that about
    Bidden because I am going to make the mistake every time.
        Senator Biden. I do not have any further questions. I would
    just like to thank the Secretary. He has always been available.
        The Chairman. You bet.
        Senator Biden. There are some of us--I suspect all of us
    here--who appreciate the opportunity of being able to pick up
    the phone and call you as we do. I would really like to explore
    with you, Mr. Secretary, over the next couple months, at some
    point--and if you would be willing to see me, up in your neck
    of the woods--the combination of some imaginative diplomacy
    here, coupled with a missile defense initiative and coupled
    with arms reductions. It seems to me that the debate has
    devolved to those like me who are portrayed as clinging to the
    theological touchstone of nuclear theory here, and that is ABM
    Treaty, and those who have always believed it was a bad idea--
    and I am not characterizing you in what I am about to say, Mr.
    Chairman--those who believe that the answer is elimination of
    it and going full bore on a missile defense.
        It seems to me that there is a need for a new strategic
    concept here that incorporates more than merely the judgment
    that we go full bore on a national missile defense system and
    abandon the ABM Treaty or stick with the ABM Treaty and not
    move forward on any missile defense system.
        Again, I know you think a lot about these things. I would
    like to come up and just buy you lunch and listen to you talk
    about it. I mean it sincerely.
        Dr. Kissinger. I would be delighted, Senator, to do this. I
    would always strongly support some bipartisan approach that
    enables us to account for this new world that has emerged,
    which is no longer bipolar and in which different parts of the
    world really operate on different principles quite often. I
    think that is an important challenge, but I do believe that
    missile defense will have to be a part of it.
        Senator Biden. Thank you.
        The Chairman. So do I. As Joe said and I have said, you
    have always been so good about making yourself available. I
    know that there are other things that you need to be doing than
    coming here this morning, but I appreciate that.
        Maybe sometime we can not have a formal appearance but
    maybe have lunch with a bunch of Senators who are interested,
    have a bowl of soup and just talk.
        Dr. Kissinger. It would be a privilege.
        The Chairman. So, I will be in touch with you about that.
        I think you know I appreciate your coming here this morning
    and I appreciate your willingness and readiness to be helpful.
        Senator Hagel.
        Senator Hagel. Mr. Secretary, thank you. Stay well. We are
    going to need you in the next few years. Happy Birthday.
        The Chairman. And Happy Birthday to you. I cannot sing or I
    would sing it to you.
        We stand in recess.
        [Whereupon, at 11:53 a.m., the committee adjourned, to
    reconvene at 3 p.m., September 16, 1999.]

     FOREIGN MISSILE DEVELOPMENTS AND THE BALLISTIC MISSILE THREAT TO THE
                           UNITED STATES THROUGH 2015

                                  ----------

                          THURSDAY, SEPTEMBER 16, 1999

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 3 p.m., in room
    SD-419, Dirksen Senate Office Building, Hon. Jesse Helms
    (chairman of the committee) presiding.
        Present: Senator Helms.
        The Chairman. The committee will come to order. The Ranking
    Minority Senator, Senator Biden, hopes that he will be able to
    come a little later.
        Today the Senate Foreign Relations Committee welcomes Mr.
    Robert Walpole, National Intelligence Officer for Strategic and
    Nuclear Programs. He has graciously agreed to testify today in
    an open, unclassified session regarding the recent National
    Intelligence Estimate on Foreign Missile Threats to the United
    States. I might add parenthetically that this is a subject that
    the public, that is to say the American people, need to know
    more about than they know, and to understand better than they
    do.
        In any case, sir, I will state at the outset that you have
    done outstanding work. The unclassified report is clearly and
    succinctly written and possesses none of the criminally
    misleading caveats and hidden assumptions of previous estimates
    that I can identify. For these reasons, the National
    Intelligence Estimate will prove of enormous worth to the U.S.
    Senate, and I thank you in advance for that.
        Now then, four and a half years ago, the President, Mr.
    Clinton, vetoed critical Republican legislation to deploy
    immediately a national missile defense, and he used as a
    pretext as I recall a foreign-drafted, shortsighted and in my
    personal view politically skewed intelligence estimate 9519.
    Now, I and many other Republican Senators, and some Democrats,
    decried the President's incredible position both before this
    committee and on the Senate floor, citing the fact that North
    Korea was known, and even in 1995, to be developing a missile
    capable of striking U.S. cities.
        Four and a half years have passed since then, and every day
    since the President killed the concept of the deployment of a
    missile defense for the American people, the North Koreans have
    been working overtime on their missiles. Now, sir, I wish you
    had been on the job in 1995. Certainly if you had been, the
    President would have been unable to use the intelligence
    community as he did as an excuse. Mr. Walpole today will tell
    this committee, the U.S. Senate, and the American people, I
    believe, that one of our worst fears has materialized, and he
    will make absolutely clear, I believe, that North Korea right
    now could convert its Taepo Dong-I missile to drop anthrax on
    the United States and that an even larger, more precise missile
    could be flight tested at any time.
        Now, in anticipation of receiving your shocking report, I
    find myself deeply regretful that the Clinton-Gore
    administration has squandered so much time that should have
    been spent deploying a system to protect the American people.
    Instead of fulfilling his highest constitutional obligation, to
    protect the American people, the President has spent his time
    in various dalliances, some well-known, some not, not the least
    has been his ``love affair'' with the ABM Treaty.
        And in addition to his thorough appraisal of the rapidly
    emerging missile threat, there is one other important aspect of
    the National Intelligence Estimate, and that is on page 16, I
    believe it is. It states unequivocally, and I am quoting,
    ``Pakistan has M-11 SRBMs, short range ballistic missiles, from
    China.'' Now, this wording expresses the absolute certainty
    that China has, in fact, transferred M-11 missiles to Pakistan.
        Now, this statement by the intelligence community stands in
    stark contrast to the evasive pronouncements of officials of
    the State Department, who have desperately sought to avoid
    their legal obligation to impose missile sanctions upon
    Communist China for this transfer. I point out, for instance,
    that on April 10, 1997, in a hearing before the Governmental
    Affairs Committee, Senator Levin asked Robert Einhorn, the
    Deputy Assistant Secretary of State for Nonproliferation a
    question, and Levin's question was, ``Have you concluded
    whether or not full missiles, in effect, were transferred?''
        And in response, Mr. Einhorn delivered the following
    statement which I regard as gobbledygook. He said, ``We have
    not reached a conclusion based on the high standard of evidence
    that we require that complete missiles were transferred. We
    have not concluded one way or another because our level of
    confidence is not sufficient to take a decision that has very
    far-reaching consequences.'' If you can make heads or tails of
    that statement, I want to see you after this meeting.
        In any case, first we wish that the Department of State had
    been as candid and forthright as you and your experts have
    been, but I must say to all who are listening, enough is
    enough. The National Intelligence Estimate is the last straw. I
    could not agree more with then-CIA Director John Deutch, who
    once said about the M-11 issue, ``If you are not satisfied with
    the intelligence on this, you will never be satisfied with any
    intelligence on anything else.'' Quote, unquote.
        Now then, I am taking up more time than I intended, but let
    it be clear that I am not inclined to stand back in silence, as
    any administration, including the present one, continues to
    dodge the Arms Export Control Act and break the law without
    suffering the consequences.
        The NIE makes it absolutely clear that there is zero doubt
    about China's having transferred M-11 missiles to Pakistan, and
    I want to make it absolutely clear here today that from here on
    out, the administration has a choice. The administration can
    adhere to the MTCR law, which it has been flouting for the past
    6 years, or it can make do without any Assistant Secretary of
    State for Nonproliferation Affairs. That I think I can assure
    you.
        The choice is plain and simple. On the day that the
    Clinton-Gore administration demonstrates that it deserves an
    Assistant Secretary on these issues, we will try to cooperate
    then, but not before.
        [The prepared statement of Senator Helms follows:]

                   Prepared Statement of Senator Jesse Helms

        Today the Senate Foreign Relations Committee welcomes Robert
    Walpole, National Intelligence Officer for Strategic and Nuclear
    Programs. Mr. Walpole has graciously agreed to testify today in an
    open, unclassified session regarding the recent National Intelligence
    Estimate on Foreign Missile Threats to the United States.
        Mr. Walpole, I will state at the outset that--as the National
    Intelligence Officer for this estimate--you have done outstanding work.
    The unclassified report is clearly and succinctly written, and
    possesses none of the criminally-misleading caveats and hidden
    assumptions of previous estimates. I especially applaud your decision
    to (1) assess the threat to the entire United States (as opposed to the
    continental United States); (2) to include China and Russia in your
    ``key judgment'' of the threat; and (3) to adopt the reasonable
    standard of ``first flight test'' as the initial indicator of a threat.
    For these reasons, and others, this National Intelligence Estimate will
    prove of enormous worth to the United States Senate.
        Four and a half years ago, President Clinton vetoed critical
    Republican legislation to deploy immediately a national missile
    defense. In his veto message for the 1996 Defense Authorization Act,
    President Clinton flatly and explicitly objected to having a missile
    defense to protect the American people. At that time, I--and many other
    Republican Senators--found beyond belief the fact that the President of
    the United States could arrive at such a decision, all in the name of a
    defunct arms control treaty.
        I decried the President's incredible position both before this
    committee and on the Senate floor, citing the fact that North Korea was
    known, even in 1995, to be developing a missile capable of striking
    U.S. cities.
        Four and a half years have passed since then, and every day since
    the President killed the deployment of a missile defense, the North
    Koreans have been working overtime on their missiles.
        Mr. Walpole today will tell this committee, the U.S. Senate, and
    the American people, that one of our worst fears has materialized. He
    will make absolutely clear that North Korea, right now, could convert
    its Taepo Dong-I missile to drop anthrax on the United States, and that
    an even larger, more precise missile could be flight tested at any
    time.
        In anticipation of receiving Mr. Walpole's shocking report, I find
    myself deeply regretful that the Clinton-Gore administration has
    squandered so much time that should have been spent deploying a system
    to protect the American people. Instead of fulfilling his highest
    Constitutional obligation--to protect the American people--the
    President spent his time in various dalliances, not the least of which
    has been his ``love affair'' with the ABM Treaty.
        I remind my colleagues that President Clinton made a legally-
    binding commitment to the Senate on May 14, 1997 (well over 2 years
    ago) to submit a revised ABM Treaty to the Senate. So far, Mr. Clinton
    has refused to keep his promise. And until we have these documents, and
    the opportunity to clear away the ABM Treaty obstacle, the American
    people will remain defenseless against incoming missile attacks.
        In addition to its thorough appraisal of the rapidly emerging
    missile threat, there is one other important aspect of the National
    Intelligence Estimate upon which I feel obliged to comment: on page 16
    the NIE states unequivocally: ``Pakistan has M-11 SRBM's [short range
    ballistic missiles] from China.'' This wording expresses the absolute
    certainty of the U.S. intelligence community that China has, in fact,
    transferred M-11 missiles to Pakistan. (This statement builds upon
    previous testimony by Dr. Gordon Oehler, who testified that the
    intelligence community was ``virtually certain'' that complete M-11's
    had been transferred. I also note that a 1998 publication of the
    National Air Intelligence Center specifically lists Pakistan as
    possessing ``fewer than 50'' M-11 missile systems.)
        These statements by the intelligence community stand in stark
    contrast to the evasive pronouncements of officials of the State
    Department, who have desperately sought to avoid their legal obligation
    to impose missile sanctions upon Communist China for this transfer.
        I point out, for instance, that on April 10, 1997, during a hearing
    before a Governmental Affairs subcommittee, Senator Levin asked Robert
    Einhorn, the Deputy Assistant Secretary of State for Nonproliferation,
    ``[H]ave you concluded whether or not full missiles, in effect, were
    transferred?'' In response, Mr. Einhorn offered the following
    goobledigook: ``We have not reached a conclusion based on the high
    standard of evidence that we require that complete missiles were
    transferred. . . . We have not concluded one way or another because our
    level of confidence is not sufficient to take a decision that has very
    far-reaching consequences.''
        Well, Mr. Walpole, I fervently wish that the Department of State
    had been as candid and forthright as you and your experts. But I must
    say to all who will listen: enough is enough. The National Intelligence
    Estimate is the last straw. I could not agree more with then-CIA
    Director John Deutch, who once said about the M-11 issue: ``If you're
    not satisfied with the intelligence on this, you will never be
    satisfied with any intelligence on anything else.''
        I am not inclined to stand back in silence as the Clinton
    administration continues dodging the Arms Export Control Act and
    breaking the law without suffering the consequences. The National
    Intelligence Estimate on Missile Threats makes it absolutely clear that
    there is zero doubt about China's having transferred M-11 missiles to
    Pakistan. I want to make it absolutely clear here today, from here on
    out, the administration has a choice.
        The administration can adhere to the MTCR law which it has been
    flouting for the past 6 years, or it can make do without any Assistant
    Secretary of State for Nonproliferation Affairs. The choice is plain
    and simple. On the day that the Clinton-Gore administration
    demonstrates that it deserves an Assistant Secretary for these issues,
    we will try to cooperate.
        With that said, Mr. Walpole, I welcome you here today, and I turn
    to Senator Biden for his comments.

        The Chairman. And with that, sir, we again welcome you here
    today, and we will await Senator Biden's statement after you
    have completed. You may proceed.

     STATEMENT OF ROBERT D. WALPOLE, NATIONAL INTELLIGENCE OFFICER
    FOR STRATEGIC AND NUCLEAR PROGRAMS, CENTRAL INTELLIGENCE AGENCY

        Mr. Walpole. Thank you, Mr. Chairman. I appreciate the
    opportunity to appear before you today in an open session to
    discuss the intelligence community's National Intelligence
    Estimates. We refer to them as NIE's. It is just shorter. This
    one covers the ballistic missile threat through the year 2015.
    Following that statement, I will try to answer any questions
    you have without providing important information to foreign
    countries on how they could hide more weapons developments from
    us. Thus, you will understand that in some cases, I may not be
    able to answer a question more fully than I really would like
    to. In such cases, though, I can provide a classified answer
    for the record if you like.
        My statement for the record, which I think you have a copy
    of, does not cover all of the important information that the
    unclassified paper does.
        The Chairman. Suppose we make that officially a part of the
    record.
        Mr. Walpole. I was going to ask that both of those in fact
    be included as part of the record. I am going to just summarize
    the statement for the record.
        Congress has requested the intelligence community to
    provide annual reports on ballistic missile developments
    worldwide. We did the first of those reports in March 1998, and
    then following the October 1998 launch of the North Korean
    Taepo Dong-I space launch vehicle, we did an update memorandum.
    We did not feel that that could wait for this NIE to be
    covered.
        Our 1999 report, as you have noted, is a National
    Intelligence Estimate, in that we examined future capabilities
    for several countries that have or have had ballistic missiles
    or space launch programs or even the intentions.
        Our approach for this year's report differs in three major
    ways from previous reports. First, we project the missile
    developments through the year 2015. Prior reports have only
    gone to 2010, so we have added five more years for development.
    That is important.
        Second, with expertise inside and outside the intelligence
    community, we examined ways that a country could acquire an
    ICBM and assessed the likelihood that they would do so. Earlier
    intelligence reports only focused on what the country is likely
    to do, our best estimates of what they would like to do. The
    Rumsfeld Commission report only looked at what a country could
    do and didn't discuss likelihoods. We thought it was time the
    two were put together in one document so that people could see
    what they were capable of doing, these countries were capable,
    as well as see what we judged they were likely to do. Although
    I will note, in fairness to one agency, they believe the
    prominence given by this approach to missiles countries could
    develop gives more credence than is warranted to developments
    that may prove implausible.
        Third, countries could threaten to use ballistic missiles
    against the United States following very limited flight
    testing, in fact, only one test. So we used the first
    successful flight test to indicate an initial threat
    availability. A nation may decide that the ability to threaten
    with one or two missiles is sufficient for its needs. I should
    note that our projections of future ICBM developments are based
    on limited information and engineering judgment. Adding to our
    uncertainty is that many countries surround their ballistic
    missile programs with secrecy and some employ deception. Recall
    that we did not know that the Taepo Dong-I had a third stage
    until a few days after the flight. That is one of the reasons
    that we have to keep some of this information classified. I do
    not think anybody in the American public wants us to tell the
    foreigners how to hide more from us. They hide plenty now.
        I should also note that we incorporated the results of
    several expert academic and contractor efforts, including
    recommendations from former members of the Rumsfeld Commission,
    assistance from politico-economic experts to help examine
    potential ICBM sales, and assistance from multiple missile
    contractors to help postulate potential ICBM configurations
    that rogue states could pursue.
        Let me mention a couple of comments about the proliferation
    environment we find ourselves in. Worldwide ballistic missile
    proliferation has continued to evolve during the past 18
    months. The capabilities of the missiles that we are seen are
    growing, a fact underscored by North Korea's Taepo Dong launch.
    The number of missiles is increasing. Medium and short range
    ballistic missiles already pose a significant threat to U.S.
    interests, military forces and allies overseas. We have seen
    increased trade and cooperation among countries that have been
    recipients of the missile technologies, and finally, some
    countries continue to work on longer range missiles, including
    ICBM's.
        Projecting political and economic developments that could
    alter the nature of the missile threat many years into the
    future is virtually impossible. The threat ultimately will
    depend on our changing relations with foreign countries, the
    political and economic situation in those countries and other
    factors that we cannot predict with confidence.
        I note, for example, that 15 years ago, the United States
    and the former Soviet Union were superpower adversaries in the
    midst of the cold war posturing forces against each other in
    Europe. 15 years ago, Iraq shared some significant common
    interests with the United States. Finally, we do not know if
    some of the countries that, I will not mention names, would
    even exist 15 years from now or even as suppliers of
    technology.
        Understanding those uncertainties, we project that during
    the next 15 years the United States will most likely face a
    ballistic missile threat from Russia, China, and North Korea,
    probably from Iran and possibly from Iraq. The Russian threat,
    although significantly reduced, will continue to be the most
    robust and lethal, much more so than China's and orders of
    magnitude more than the threat posed by others.
        North Korea, Iran, Iraq, will have fewer ICBM's, probably
    on the order of few to tens, constrained to smaller payloads.
    They will be less reliable, less accurate and they will not
    have the payload capability; I think I mentioned that.
        The new missile threats are far different from that of the
    cold war during the last three decades. During that period, the
    ballistic threat involved relatively accurate, survivable,
    reliable missiles deployed in large numbers. By contrast, the
    new missile threats involve states with considerably fewer
    missiles, less accuracy, yields, survivability, reliability and
    payload capability. Even so, they threaten in different ways.
        First, although the majority of systems being developed and
    produced today are short and medium range missiles, North
    Korea's three-stage Taepo Dong-I space launch vehicle launch
    demonstrated Pyongyang's potential to cross the ICBM threshold
    if it develops a survivable weapon for that system. Other
    nations could cross that threshold during the next 15 years.
        Second, many of the countries that are developing longer
    range missiles probably assess that the threat of their use
    would complicate American decisionmaking during a crisis. Over
    the last decade the world has observed that missiles less
    capable than the ICBM's that the United States and others have
    deployed can affect another nation's decisionmaking process.
        Third, the probability that a missile with a weapon of mass
    destruction will be used against U.S. forces or interests is
    higher today than during most of the cold war. Ballistic
    missiles, for example, were used against U.S. forces during the
    Gulf war. More nations now have longer range missiles and
    weapons of mass destruction. While the missiles used in several
    conflicts over the past two decades did not have weapons of
    mass destruction, some of the regimes controlling the missiles
    have exhibited a willingness to use those weapons in other
    ways.
        Thus acquiring long range ballistic missiles armed with
    weapons of mass destruction probably will enable weaker nations
    to deter, constrain and harm the United States. The missiles do
    not need to be deployed in large numbers. They do not need to
    be highly accurate. They do not need to be highly reliable,
    because their strategic value is derived primarily from the
    threat of their use, not their certain outcome of their use. In
    many ways, such weapons may be viewed more as strategic weapons
    of deterrence and coercive diplomacy.
        The progress of countries in Asia and the Middle East
    toward acquiring long-range ballistic missiles has been
    dramatically demonstrated over the past 18 months, most
    notably, the Taepo Dong-I launch I just mentioned. Pakistan
    flight tested the 1,300-kilometer range Ghauri missile. Iran
    tested the 1,300-kilometer range Shahab-3. India recently
    flight tested the 2,000-kilometer range Agni II and China
    conducted its first flight test of a mobile ICBM, the DF-31,
    just last month.
        Now let us turn to the threats. On North Korea: After
    Russia and China, North Korea is the most likely to develop
    ICBM's capable of threatening the United States during the next
    15 years. With an operable third stage and a reentry vehicle
    capable of surviving ICBM flight, a converted Taepo Dong-I
    space launch vehicle could deliver a light payload to the
    United States. In these cases about two-thirds of the payload
    mass would be required for the reentry vehicle structure. The
    remaining mass is probably too light for an early generation
    nuclear weapon, but could deliver a biological or chemical
    warfare agent.
        Most analysts believed that North Korea probably would test
    a Taepo Dong-II this year unless, as we have now seen, it is
    delayed for political reasons. A two-stage Taepo Dong-II could
    deliver a several-hundred-kilogram payload to Alaska and Hawaii
    and a lighter payload to the western half of the United States.
    A three-stage Taepo Dong-II could deliver a several hundred
    kilogram payload anywhere in the United States. North Korea is
    much more likely to weaponize the more capable Taepo Dong-II
    than the Taepo Dong-I as an ICBM.
        Iran is the next hostile country most capable of testing an
    ICBM that could deliver a weapon to the United States during
    the next 15 years. Iran could test an ICBM that could deliver a
    several hundred kilogram payload to many parts of the United
    States in the latter half of the next decade using Russian
    technology and assistance. Iran could pursue a Taepo Dong type
    ICBM and could test either a Taepo Dong-I or a Taepo Dong-II,
    possibly with North Korean assistance, in the next 2 years.
    Iran is likely to test a space launch vehicle by the year 2010
    that, once developed, could be converted to an ICBM. Beyond
    that, analysts differ on the likely timing of Iran's first
    flight test.
        What you will find in our, both the unclassified and the
    classified papers, we get more agreement on what the countries
    could do than what they are likely to do. That is because what
    they could do is based on the infrastructure, what we have seen
    happen in the past, capabilities. What they are likely to do,
    we have factors that are just fraught with a lot of
    uncertainty, but there is a spread of views on Iran. Some
    analysts believe that Iran is likely to test an ICBM before
    2010 and very likely before 2015, and in fact probably will
    test a space launch vehicle like the Taepo Dong-I in the next
    few years. Some analysts believe there is no more than an even
    chance of an ICBM test from Iran by 2010 and a better than even
    chance by 2015. And still others believe less than an even
    chance by 2015.
        Now let us shift to Iraq. Although the Gulf war and
    subsequent U.N. activities destroyed much of Iraq's
    infrastructure, Iraq could test an ICBM capable of reaching the
    United States in the next 15 years. After observing North
    Korean activities, Iraq would likely pursue a three-stage Taepo
    Dong-II type approach to an ICBM. If they got North Korean
    assistance with engines, they would be able to do it much
    faster than if they had to do it on their own. But in either
    case it would be the latter half in the next decade.
        Although much less likely, they could try to test a much
    less capable ICBM patterned after one of their failed SLV prior
    to the Gulf war using Scud components or to try to copy a Taepo
    Dong-I. Now again, analysts differ on likelihood. Assessments
    include unlikely before the year 2015, likely before 2015,
    possibly before 2010 if foreign assistance were involved.
        Russia's forces are experiencing serious budget
    constraints, but will remain a cornerstone of their military
    power. Russia has about 1,000 strategic ballistic missiles with
    4,500 warheads. They will maintain as many strategic missiles
    and warheads as they feel their budget will allow, but it would
    be well short of START I or START II limits. If Russia ratifies
    START II with its ban on multiple warheads on ICBM's, it would
    probably be able to maintain only about half the number of
    weapons it could maintain without a ban. We judge that an
    unauthorized or accidental launch of a Russian strategic
    missile is highly unlikely so long as current technical and
    procedural safeguards are in place.
        Now let me shift to China for a moment. China's doctrine
    calls for a survivable long-range missile force that can hold a
    significant portion of the U.S. population at risk in a
    retaliatory strike. China's current force of about 20 CSS-4's
    can reach targets all over the United States. China is
    developing two road-mobile ICBM's. The first I mentioned
    earlier was tested last month and we are expect they are
    developing a longer range mobile ICBM to be tested sometime in
    the next decade to be targeted primarily against the United
    States. They are also developing the JL-2 submarine launched
    ballistic missile, which we expect to be tested in the next
    decade as well.
        By the year 2015 China will likely have tens of missiles
    targeted against the United States, having added a few tens of
    more survivable land and sea-based mobile ICBM's. When I
    delivered this paper to the, to a press backgrounder, I was
    asked what tens meant and what few tens meant. I said I am not
    going to declassify the numbers we have, but I will say this.
    Tens is more than 20 because we put the number 20 in there and
    it is less than 100, and few tens is less than tens. So
    somewhere in there people can play with the numbers and go with
    it.
        China has had the technical capability to develop multiple-
    RV payloads for 20 years, has not done so, but if they wanted
    one, they could use the reentry vehicle from the recently
    tested mobile ICBM and have either a multiple-RV or a multiple
    independently targeted RV system in a few years. But we expect
    that MIRV'ing a mobile system would take many years. China is
    also significantly improving its theater missile capabilities
    opposite Taiwan and is significantly increasing the number of
    missiles deployed off of Taiwan. We assess that an unauthorized
    or unaccidental launch of a Chinese strategic missile is highly
    unlikely.
        You have mentioned foreign assistance. I mention that as
    well. It continues to have demonstrable effects on missile
    defenses around the world. Russian missile assistance continues
    to be significant. China continues to contribute to missile
    programs in some countries. North Korea may expand its sales
    and some recipients are now sharing more with others and are
    pursuing cooperative missile ventures.
        Moreover, changes in the regional and international
    security environment, in particular, Iran's Shahab-3 test and
    the Indian and Pakistani missile tests and nuclear tests are
    probably fueling regional interest in missiles and weapons of
    mass destruction. Sales of ICBM's and space launch vehicles
    which have inherent ICBM capabilities could further increase
    the threat.
        North Korea continues to demonstrate a willingness to sell.
    Projecting the likelihood of a Russian or Chinese sale 15 years
    into the future is very difficult, nevertheless, we continue to
    judge it unlikely that Moscow or Beijing would sell a complete
    ICBM, SLV or technologies tantamount to an ICBM. That will all
    be driven by really unpredictable future economic conditions,
    how Moscow will perceive its position vis-a-vis the West, and
    future Russian and Chinese perceptions of U.S. ballistic
    missile defenses.
        A lot has been said about warning times and the
    intelligence community's ability to warn. That ability depends
    highly on our collection capabilities from country to country.
    Our monitoring and warning about North Korea's efforts is an
    excellent case study on warning. In 1994, we were able to give
    5 years' warning of North Korea's efforts to acquire an ICBM
    capability. In hindsight, however, we had overestimated when
    North Korea would test both the Taepo Dong-I and the Taepo
    Dong-II. We had correctly projected the timing of their
    developing a system that could deliver small payloads to the
    United States, but we had underestimated the capabilities of
    the Taepo Dong-I, primarily because we missed the third stage.
    North Korea demonstrated intercontinental range booster
    capabilities roughly on the timetable we projected in 1994 but
    with a completely unanticipated vehicle configuration. Thus
    detecting or suspecting a missile development program and
    projecting a timing of the emerging threat, although difficult,
    are easier than forecasting the missile's performance or
    configuration.
        We continue to judge that we may not be able to provide
    much warning if a country purchased an ICBM or if the country
    already had a space launch vehicle. Nevertheless, we would view
    a space launched vehicle in the hands of a hostile country as a
    potential ICBM program. We also judge that we may not be able
    to provide much, if any, warning of a forward-based ballistic
    missile or cruise missile threat.
        Several other means for delivering weapons of mass
    destruction have probably been devised. Some more reliable than
    the ICBM's we have talked about. Most of these means, however,
    do not provide the same prestige and degree of deterrence or
    coercive diplomacy associated with long-range missiles. Several
    countries would be capable of deploying a short-range ballistic
    missile or if they develop one, a cruise missile on a surface
    ship. If they are not worried about accuracy, it is not that
    difficult and even reduced accuracy in many cases would be
    better than some of the systems that we have been looking at
    for ICBM's.
        Finally, I should make some comments about nonmissile
    threats. Although nonmissile means of delivering weapons do not
    provide the same prestige, degree of deterrence or coercive
    diplomacy associated with an ICBM, such options are of
    significant concern. Countries or nonstate actors could pursue
    nondelivery missile options, most of which are less expensive
    than ICBM's, can be covertly developed and employed, probably
    would be more reliable, probably would be more accurate than
    emerging ICBM's during the next 15 years, probably would be
    more effective in disseminating biological warfare agent and
    certainly would avoid missile defenses.
        Foreign nonstate actors, including some known terrorist or
    extremist groups, have used, possessed, or are interested in
    weapons of mass destruction or the materials to build them.
    Most of these groups have threatened the United States or its
    interests. We cannot count on obtaining warning of all planned
    terrorist attacks, despite the high priority we assign to this
    goal.
        The proliferation of medium-range missiles, driven
    primarily by North Korean No Dong sales, has created an
    immediate, serious and growing threat to U.S. forces, interests
    and allies in the Middle East and Asia, and it has
    significantly altered the strategic balances in these regions.
    As you noted, our report said that Pakistan has M-11 SRBM's
    from China and Ghauri MRBM's from North Korea. We assess that
    both may have a nuclear role. India has Prithvi I SRBM's and
    recently began testing the Agni II MRBM. We assess, again, both
    may have a nuclear role.
        We judge that countries developing missiles view their
    regional concerns as a primary factor in pursuing the programs.
    They see short- and medium-range missiles not only as
    deterrents, but as force-multiplying weapons of war.
        On penetration agent countermeasures, we were asked
    specifically to address that in this year's annual report. We
    assess that countries developing ballistic missiles would also
    develop various responses to U.S. theater and national
    defenses. Russia and China each have developed numerous
    countermeasures and are probably willing to sell some of the
    technologies.
        Many countries, such as North Korea, Iran, Iraq, probably
    would rely initially on readily available technology--
    separating RV's, spin-stabilized RV's, RV reorientation, radar
    absorbing material, booster fragmentation, low-power jammers,
    chaff, and simple balloon decoys to develop these penetration
    aids and countermeasures. These countries could develop
    countermeasures based on these technologies by the time they
    flight test their missiles.
        Finally, I should close with a comment on espionage.
    Foreign espionage and other collection efforts are likely to
    increase. We did the damage assessment earlier this year. I was
    responsible for that, and we did an unclassified set of key
    findings on that. In that we noted that China has obtained
    significant nuclear weapons information from espionage, contact
    with scientists from the United States and other countries,
    publications and conferences, unauthorized media disclosures,
    and declassified U.S. weapons information. We assess that
    China, Iran and others are also targeting U.S. missile
    information.
        So with that, I am ready to take whatever questions you
    have and I am sorry that took a while to go through, but I
    think it is kind of important to get the whole story.
        [The prepared statement of Mr. Walpole follows:]

                    Prepared Statement of Robert D. Walpole

        Mr. Chairman, members of the committee, I appreciate the
    opportunity to appear before you today to discuss, in an open session,
    the Intelligence Community's recent National Intelligence Estimate
    (NIE) on the ballistic missile threat to the United States through the
    year 2015. Following my statement, I will try to answer your questions
    without providing important information to countries seeking to hide
    weapons developments from us. Thus, you'll understand that if I cannot
    answer a question more fully, it's not that I do not want to. In such
    cases, I could provide a classified answer for the record if you would
    like.
        My statement for the record does not cover all the important
    material published in our recent unclassified paper on this subject.
    Moreover, in the interest of time I would like to summarize my
    statement verbally, so I would like to submit both the unclassified
    paper and my written statement for the record.
        Congress has requested that the Intelligence Community produce
    annual reports on ballistic missile developments worldwide. We produced
    the first report in March 1998 and an update memorandum in October 1998
    on the August North Korean launch of its Taepo Dong-I space launch
    vehicle. Our 1999 report is a classified NIE, but we summarized it in
    the unclassified paper I just mentioned. You have copies of that paper
    for this hearing.
        This year we examined future capabilities for several countries
    that have or have had ballistic missiles or space launch programs or
    intentions. Our approach for this year's report differs with past
    efforts in three major ways.

       First, we have projected missile developments through the
            year 2015; previous reports projected the threat through 2010.
            Thus, we have added five years of further development.
       Second, using intelligence information and expertise inside
            and outside the Intelligence Community, we examined scenarios
            by which a country could acquire an ICBM and assessed the
            likelihood of various scenarios. (Earlier intelligence reports
            have focused on scenarios we judged as most likely; the
            Rumsfeld report focused only on what a country could do. We
            decided it was time to combine both approaches, although one
            agency believes that the prominence given by this approach to
            missiles countries ``could'' develop gives more credence than
            is warranted to developments that may prove implausible.) We
            did not attempt to address all of the potential political,
            economic, and social changes that could occur. Rather, we
            analyzed the level of success and the pace countries have
            experienced in their development efforts, technology transfers,
            political motives, military incentives, and economic resources.
            From that basis, we projected possible and likely missile
            developments by 2015 independent of significant political and
            economic changes.
       Third, because countries could threaten to use ballistic
            missiles following limited flight-testing and before a missile
            is deployed in the traditional sense, we use the first
            successful flight test to indicate an ``initial threat
            availability.'' Emerging long-range missile powers do not
            appear to rely on robust test programs to ensure a missile's
            accuracy and reliability or to intend to deploy a large number
            of long-range missiles to dedicated, long-term sites. A nation
            may decide that the ability to threaten with one or two
            missiles is sufficient. With shorter flight test programs--
            perhaps only one test--and potentially simple deployment
            schemes, the time between the initial flight test and the
            availability of a missile for military use is likely to be
            shortened. Using the date of the first projected flight test as
            the initial indicator of the threat recognizes that an
            adversary armed with even a single missile capable of
            delivering a weapon of mass destruction may consider it
            threatening. Using the first flight test also results in threat
            projections a few years earlier than those based on traditional
            definitions of deployment.

        I should note that our projections are based largely on limited
    information and engineering judgment. Adding to our uncertainty is that
    many countries surround their ballistic missile programs with secrecy,
    and some employ deception. Although some key milestones are difficult
    to hide, we may miss others, at least until flight testing; recall that
    we did not know until its launch that North Korea had acquired a third
    stage for its Taepo Dong-I.
        I should also note that we incorporated the results of several
    expert, academic and contractor efforts, including the recommendations
    of former members of the Commission to Access the Ballistic Missile
    Threat to the United States, assistance from politico-economic experts
    to help examine future environments that might foster ICBM sales, and
    the expertise of missile contractors to help postulate potential ICBM
    configurations others could pursue.
      the evolving missile threat in the current proliferation environment
        Worldwide ballistic missile proliferation has continued to evolve
    during the past 18 months. The capabilities of the missiles are
    growing, a fact underscored by North Korea's Taepo Dong-I launch. The
    number of missiles is increasing. Medium- and short-range ballistic
    missile systems, particularly if armed with weapons of mass
    destruction, already pose a significant threat to U.S. interests,
    military forces, and allies overseas. We have seen increased trade and
    cooperation among countries that have been recipients of missile
    technologies. Finally, some countries continue to work toward longer-
    range systems, including ICBMs.
        Projecting political and economic developments that could alter the
    missile threat many years into the future is virtually impossible. The
    threat facing the United States in the year 2015 will depend on our
    changing relations with foreign countries, the political situation
    within those countries, economic factors, and numerous other factors
    that we cannot predict with confidence.

       For example, 15 years ago the United States and Soviet Union
            were superpower adversaries in the midst of the Cold War, with
            military forces facing off in central Europe and competing for
            global power.
       Fifteen years ago Iraq shared common interests with the
            United States.
       Finally, we do not know whether some of the countries of
            concern will exist in 15 years.

        Understanding the uncertainties, we project that during the next 15
    years the United States most likely will face ICBM threats from Russia,
    China, and North Korea, probably from Iran, and possibly from Iraq. The
    Russian threat, although significantly reduced, will continue to be the
    most robust and lethal, considerably more so than that posed by China,
    and orders of magnitude more than that potentially posed by the others,
    whose missiles are likely to be fewer in number--probably a few to
    tens, constrained to smaller payloads, and less reliable and accurate.
        The new missile threats confronting the United States are far
    different from the Cold War threat during the last three decades.
    During that period, the ballistic missile threat to the United States
    involved relatively accurate, survivable, and reliable missiles
    deployed in large numbers. Soviet--and to a much lesser extent
    Chinese--strategic forces threatened, as they still do, the potential
    for catastrophic, nation-killing damage. By contrast, the new missile
    threats involve states with considerably fewer missiles with less
    accuracy, yield, survivability, reliability, and range-payload
    capability than the hostile strategic forces we have faced for 30
    years. Even so, the new systems are threatening, but in different ways.

       First, although the majority of systems being developed and
            produced today are short- or medium-range ballistic missiles,
            North Korea's three-stage Taepo Dong-I SLV demonstrated
            Pyongyang's potential to cross the ICBM threshold if it
            develops a survivable weapon for the system. Other potentially
            hostile nations could cross that threshold during the next 15
            years.
       Second, many of the countries that are developing longer-
            range missiles probably assess that the threat of their use
            would complicate American decision-making during crises. Over
            the last decade, the world has observed that missiles less
            capable than the ICBMs the United States and others have
            deployed can affect another nation's decision-making process.
       Third, the probability that a missile with a weapon of mass
            destruction will be used against U.S. forces or interests is
            higher today than during most of the Cold War. Ballistic
            missiles, for example, were used against U.S. forces during the
            Gulf war. More nations now have longer-range missiles and
            weapons of mass destruction. Missiles have been used in several
            conflicts over the past two decades, although not with weapons
            of mass destruction. Nevertheless, some of the regimes
            controlling these missiles have exhibited a willingness to use
            such weapons.

        Thus, acquiring long-range ballistic missiles armed with a weapon
    of mass destruction probably will enable weaker countries to do three
    things that they otherwise might not be able to do: deter, constrain,
    and harm the United States. To achieve these objectives, the missiles
    need not be deployed in large numbers; with even a few such weapons,
    these countries would judge that they had the capability to threaten at
    least politically significant damage to the United States or its
    allies. They need not be highly accurate; the ability to target a large
    urban area is sufficient. They need not be highly reliable, because
    their strategic value is derived primarily from the implicit or
    explicit threat of their use, not the near certain outcome of such use.
    Some of these systems may be intended for their political impact as
    potential terror weapons, while others may be built to perform more
    specific military missions, facing the United States with a broad
    spectrum of motivations, development timelines, and resulting hostile
    capabilities. In many ways, such weapons are not envisioned at the
    outset as operational weapons of war, but primarily as strategic
    weapons of deterrence and coercive diplomacy.
        The progress of countries in Asia and the Middle East toward
    acquiring longer-range ballistic missiles has been dramatically
    demonstrated over the past 18 months:

       Most notably, North Korea's three-stage Taepo Dong-I SLV has
            inherent, albeit limited, capabilities to deliver small
            payloads to ICBM ranges. The much more capable Taepo Dong-II
            could be flight tested this year, unless it is delayed for
            political reasons.
       Pakistan flight-tested its 1,300 km range Ghauri missile,
            which it produced with North Korean assistance.
       Iran flight-tested its 1,300 km range Shahab-3--a version of
            North Korea's No Dong, which Iran has produced with Russian
            assistance.
       India flight-tested its Agni II MRBM, which we estimate will
            have a range of about 2,000 km.
       China conduced the first flight test of its DF-31 mobile
            ICBM in August 1999; it will have a range of about 8,000 km.

        potential icbm threats to the united states from five countries
        North Korea. After Russia and China, North Korea is the most likely
    to develop ICBMs capable of threatening the United States during the
    next 15 years.

       With an operable third stage and a reentry vehicle capable
            of surviving ICBM flight, a converted Taepo Dong-I SLV could
            deliver a light payload to the United States. In these cases,
            about two-thirds of the payload mass would be required for the
            reentry vehicle structure. The remaining mass is probably too
            light for an early generation nuclear weapon but could deliver
            biological or chemical (BW/CW) warfare agent.
       Most analysts believe that North Korea probably will test a
            Taepo Dong-II this year, unless delayed for political reasons.
            A two-stage Taepo Dong-II could deliver a several-hundred
            kilogram payload to Alaska and Hawaii, and a lighter payload to
            the western half of the United States. A three-stage Taepo
            Dong-II could deliver a several-hundred kilogram payload
            anywhere in the United States.
       North Korea is much more likely to weaponize the more
            capable Taepo Dong-II than the three-stage Taepo Dong-I as an
            ICBM.

        Iran. Iran is the next hostile country most capable of testing an
    ICBM capable of delivering a weapon to the United States during the
    next 15 years.

       Iran could test an ICBM that could deliver a several-hundred
            kilogram payload to many parts of the United States in the
            latter half of the next decade, using Russian technology and
            assistance.
       Iran could pursue a Taepo Dong-type ICBM and could test a
            Taepo Dong-I or Taepo Dong-II-type ICBM, possibly with North
            Korean assistance, in the next few years.
       Iran is likely to test an SLV by 2010 that--once developed-
            could be converted into an ICBM capable of delivering a
            several-hundred kilogram payload to the United States.
       Beyond that, analysts differ on the likely timing of Iran's
            first flight test of an ICBM that could threaten the United
            States. Assessments include:

              --likely before 2010 and very likely before 2015 (noting that
            an SLV with ICBM capabilities will probably be tested within
            the next few years);
              --no more than an even chance by 2010 and a better than even
            chance by 2015;
              --and less than an even chance by 2015.

        Iraq. Although the Gulf war and subsequent United Nations
    activities destroyed much of Iraq's missile infrastructure, Iraq could
    test an ICBM capable of reaching the United States during the next 15
    years.

       After observing North Korean activities, Iraq most likely
            would pursue a three-stage Taepo Dong-II approach to an ICBM
            (or SLV), which could deliver a several-hundred kilogram
            payload to parts of the United States. If Iraq could buy a
            Taepo Dong-II from North Korea, it could have a launch
            capability within months of the purchase; if it bought Taepo
            Dong engines, it could test an ICBM by the middle of the next
            decade. Iraq probably would take until the end of the next
            decade to develop the system domestically.
       Although much less likely, most analysts believe that if
            Iraq were to begin development today, it could test a much less
            capable ICBM in a few years using Scud components and based on
            its prior SLV experience or on the Taepo Dong-I.
       Analysts differ on the likely timing of Iraq's first flight
            test of an ICBM that could threaten the United States.
            Assessments include unlikely before 2015; and likely before
            2015, possibly before 2010--foreign assistance would affect the
            capability and timing.

        Russia. Russia's strategic offensive forces are experiencing
    serious budget constraints but will remain the cornerstone of its
    military power.

       Russia currently has about 1,000 strategic ballistic
            missiles with 4,500 warheads.
       Russia will maintain as many strategic missiles and
            associated nuclear warheads as it believes it can afford, but
            well short of START I or II limitations.
              --If Russia ratifies START II, with its ban on multiple
            warheads on ICBMs, it would probably be able to maintain only
            about half of the weapons it could maintain without the ban.
       We judge that an unauthorized or accidental launch of a
            Russian strategic missile is highly unlikely so long as current
            technical and procedural safeguards are in place.

        China. Chinese strategic nuclear doctrine calls for a survivable
    long-range missile force that can hold a significant portion of the
    U.S. population at risk in a retaliatory strike.

       China's current force of about 20 CSS-4 ICBMs can reach
            targets in all of the United States.
       Beijing also is developing two new road-mobile, solid
            propellant ICBMs.
              --It conducted the first flight test of the mobile DF-31 ICBM
            in August 1999; we judge it will have a range of about 8,000 km
            and will be targeted primarily against Russia and Asia.
              --We expect a test of a longer range mobile ICBM within the
            next several years; it will be targeted primarily against the
            United States.
       China is developing the JL-2 SLBM, which we expect to be
            tested within the next decade. The JL-2 probably will be able
            to target the United States from launch areas near China.
       By 2015, China will likely have tens of missiles targeted
            against the United States, having added a few tens of more
            survivable land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage.
       China has had the technical capability to develop multiple
            RV payloads for 20 years. If China needed a multiple-RV (MRV)
            capability in the near term, Beijing could use a DF-31-type RV
            to develop and deploy a simple MRV or multiple independently
            targetable reentry vehicle (MIRV) for the CSS-4 in a few years.
            MIRVing a future mobile missile would be many years off.
       China is also significantly improving its theater missile
            capabilities and is increasing the size of its SRBM force
            deployed opposite Taiwan.
       We assess that an unauthorized launch of a Chinese strategic
            missile is highly unlikely.

                               foreign assistance
        Foreign assistance continues to have demonstrable effects on
    missile advances around the world.

       Russian missile assistance continues to be significant.
       China continues to contribute to missile programs in some
            countries.
       North Korea may expand sales.
       Some countries that have been recipients of technology are
            now sharing more amongst themselves and are pursuing
            cooperative missile ventures.

        Moreover, changes in the regional and international security
    environment--in particular, Iran's Shahab-3 missile test and the Indian
    and Pakistani missile and nuclear tests--probably will fuel missile and
    WMD interests in the region.
        Sales of ICBMs or SLVs, which have inherent ICBM capabilities,
    could further increase the number of countries that will be able to
    threaten the United States. North Korea continues to demonstrate a
    willingness to sell its missiles. Projecting the likelihood of a
    Russian or Chinese ICBM transfer 15 years into the future is very
    uncertain, driven in part by unpredictable future economic conditions,
    how Moscow will perceive its position vis-a-vis the West, and future
    Russian and Chinese perceptions of U.S. ballistic missile defenses.
    Nevertheless, we continue to judge it unlikely that Moscow or Beijing
    would sell a complete ICBM., SLV, or the technologies tantamount to a
    complete ICBM.
       warning times and our ability to forecast missile development and
                                  acquisition
        Our ability to provide warning for a particular country depends
    highly on our collection capabilities. For some countries, we have
    relatively large bodies of evidence on which to base our assessments;
    for others, our knowledge of the programs being pursued is limited. Our
    monitoring and warning about North Korea's efforts to achieve an ICBM
    capability constitute an important case study on warning. In 1994, we
    were able to give five years warning of North Korea's efforts to
    acquire an ICBM capability. In hindsight, however, we had overestimated
    that North Korea would begin flight testing the Taepo Dong-I and Taepo
    Dong-II missiles years earlier than turned out to be the case;
    projected correctly the timing of a North Korean missile with the
    potential to deliver payloads to the ICBM range of 5,500-km; and
    underestimated the capabilities of the Taepo Dong-I by failing to
    anticipate the use of the third stage.
        North Korea demonstrated intercontinental-range booster
    capabilities roughly on the timetable we projected in 1994, but with a
    completely unanticipated vehicle configuration. Thus, detecting or
    suspecting a missile development program and projecting the timing of
    the emerging threat, although difficult, are easier than forecasting
    the vehicle's configuration or performance with accuracy. Furthermore,
    countries practice denial and deception to hide or mask their
    intentions--for example, testing an ICBM as a space launch vehicle.
        We continue to judge that we may not be able to provide much
    warning if a country purchased an ICBM or if a country already had an
    SLV capability. Nevertheless, the initiation of an SLV program is an
    indicator of a potential ICBM program. We also judge that we may not be
    able to provide much, if any, warning of a forward-based ballistic
    missile or land-attack cruise missile (LACM) threat to the United
    States. Moreover, LACM development can draw upon dual-use technologies.
    We expect to see acquisition of LACMs by many countries to meet
    regional military requirements.
                     space launch vehicle (slv) conversion
        Nations with SLVs could convert them into ICBMs relatively quickly
    with little or no chance of detection before the first flight test.
    Such a conversion would include the development of a reentry vehicle
    (RV).

       If the country had Russian or Chinese assistance in a covert
            development effort, it could have relatively high confidence
            that a covertly-developed RV would survive and function
            properly.
       If a country developed an untested RV without foreign
            assistance, its confidence would diminish, but we could not be
            confident it would fail. Significant amounts of information
            about reentry vehicles are available in open sources. The
            developing country could have some confidence that the system
            would survive reentry, although confidence in its proper
            delivery of the weapon would be lower without testing.
                    alternative threats to the united states
        Several other means to deliver WMD to the United States have
    probably been devised, some more reliable than ICBMs that have not
    completed rigorous testing and validation programs. The goal of an
    adversary would be to move the weapon within striking distance without
    a long-range ICBM. Most of these means, however, do not provide the
    same prestige and degree of deterrence or coercive diplomacy associated
    with long-range missiles, but they might be the means of choice for
    terrorists.
        Several countries are technically capable of developing a missile-
    launch mechanism to use from forward-based ships or other platforms to
    launch SRBMs and MRBMs, or land-attack cruise missiles against the
    United States. Some countries may develop and deploy a forward-based
    system during the period of the next 15 years. A short- or medium-range
    ballistic missile could be launched at the United States from a
    forward-based sea platform positioned within a few hundred kilometers
    of U.S. territory. If the attacking country were willing to accept
    significantly reduced accuracy for the missile, forward-basing on a
    sea-based platform would not be a major technical hurdle. The reduced
    accuracy in such a case, however, would probably be better than that of
    some early ICBMs. A concept similar to a sea-based ballistic missile
    launch system would be to launch cruise missiles from forward-based
    platforms. A country could also launch cruise missiles from fighter,
    bomber, or commercial transport aircraft outside U.S. airspace.
        Although non-missile means of delivering weapons of mass
    destruction do not provide the same prestige or degree of deterrence
    and coercive diplomacy associated with an ICBM, such options are of
    significant concern. Countries or non-state actors could pursue non-
    missile delivery options, most of which:

       Are less expensive than developing and producing ICBMs.
       Can be covertly developed and employed; the source of the
            weapon could be masked in an attempt to evade retaliation.
       Probably would be more reliable than ICBMs that have not
            completed rigorous testing and validation programs.
       Probably would be more accurate than emerging ICBMs over the
            next 15 years.
       Probably would be more effective for disseminating
            biological warfare agent than a ballistic missile.
       Would avoid missile defenses.

        Foreign non-state actors, including some terrorist or extremist
    groups, have used, possessed, or are interested in weapons of mass
    destruction or the materials to build them. Most of these groups have
    threatened the United States or its interests. We cannot count on
    obtaining warning of all planned terrorist attacks, despite the high
    priority we assign to this goal.
        Recent trends suggest the likelihood is increasing that a foreign
    group or individual will conduct a terrorist attack against U.S.
    interests using chemical agents or toxic industrial chemicals in an
    attempt to produce a significant number of casualties, damage
    infrastructure, or create fear among a population. Past terrorist
    events, such as the World Trade Center bombing and the Aum Shinrikyo
    chemical attack on the Tokyo subway system, demonstrated the
    feasibility and willingness to undertake an attack capable of producing
    massive casualties.
         immediate theater missile threats to u.s. interests and allies
        The proliferation of MRBMs--driven primarily by North Korean No
    Dong sales--has created an immediate, serious, and growing threat to
    U.S. forces, interests, and allies in the Middle East and Asia, and has
    significantly altered the strategic balances in the regions.

       Pakistan has M-11 SRBMs from China and Ghauri MRBMs from
            North Korea; we assess both may have a nuclear role.
       India has Prithvi I SRBMs and recently began testing the
            Agni II MRBM; we assess both may have a nuclear role.

        We judge that countries developing missiles view their regional
    concerns as one of the primary factors in tailoring their programs.
    They see their short- and medium-range missiles not only as deterrents
    but also as force-multiplying weapons of war, primarily with
    conventional weapons but with options for delivering biological,
    chemical, and eventually nuclear weapons.
                      penetration aids and countermeasures
        We assess that countries developing ballistic missiles would also
    develop various responses to U.S. theater and national defenses. Russia
    and China each have developed numerous countermeasures and probably are
    willing to sell the requisite technologies.

       Many countries, such as North Korea, Iran, and Iraq probably
            would rely initially on readily available technology--including
            separating RVs, spin-stabilized RVs, RV reorientation, radar
            absorbing material (RAM), booster fragmentation, low-power
            jammers, chaff, and simple (balloon) decoys--to develop
            penetration aids and countermeasures.
       These countries could develop countermeasures based on these
            technologies by the time they flight test their missiles.
                                   espionage
        Foreign espionage and other collection efforts are likely to
    increase. China, for example, has been able to obtain significant
    nuclear weapons information from espionage, contact with scientists
    from the United States and other countries, publications and
    conferences, unauthorized media disclosures, and declassified U.S.
    weapons information. We assess that China, Iran, and others are
    targeting U.S. missile information as well.
        That concludes my opening statement and I am prepared to take your
    questions.
                                     ______

     Foreign Missile Developments and the Ballistic Missile Threat to the
                           United States Through 2015

                                    preface
        Congress has requested that the Intelligence Community produce
    annual reports on ballistic missile developments. We produced the first
    report in March 1998 and an update memorandum in October 1998 on the
    August North Korean launch of its Taepo Dong-I space launch vehicle
    (SLV). Our 1999 report is a classified National Intelligence Estimate,
    which we have summarized in unclassified form in this paper.
        This year we examined future capabilities for several countries
    that have or have had ballistic missiles or SLV programs or intentions
    to pursue such programs. Using intelligence information and expertise
    from inside and outside the Intelligence Community, we examined
    scenarios by which a country could acquire an ICBM by 2015, including
    by purchase, and assessed the likelihood of various scenarios. (Some
    analysts believe that the prominence given to missiles countries
    ``could'' develop gives more credence than is warranted to developments
    that may prove implausible.) We did not attempt to address all of the
    potential political, economic, and social changes that could occur.
    Rather, we analyzed the level of success and the pace countries have
    experienced in their development efforts, international technology
    transfers, political motives, military incentives, and economic
    resources. From that basis, we projected possible and likely missile
    developments by 2015 independent of significant political and economic
    changes. Subsequent annual reports will be able to account for such
    changes.
        Our projections for future ICBM developments are based on limited
    information and engineering judgment. Adding to our uncertainty is that
    many countries surround their ballistic missile programs with secrecy,
    and some employ deception. Although some key milestones are difficult
    to hide, we may miss others. For example, we may not know all aspects
    of a missile system's configuration until flight testing; we did not
    know until the launch last August that North Korea had acquired a third
    stage for its Taepo Dong-I.
        We took into account recommendations made in July 1998 by the
    Commission to Assess the Ballistic Missile Threat to the United States
    and incorporated the results of several academic and contractor
    efforts, including politico-economic experts to help examine future
    environments that might foster ICBM sales and missile contractors to
    help postulate potential ICBM configurations that rogue states could
    pursue.
                                   key points
        We project that during the next 15 years the United States most
    likely will face ICBM threats from Russia, China, and North Korea,
    probably from Iran, and possibly from Iraq. The Russian threat,
    although significantly reduced, will continue to be the most robust and
    lethal, considerably more so than that posed by China, and orders of
    magnitude more than that potentially posed by other nations, whose
    missiles are likely to be fewer in number--probably a few to tens,
    constrained to smaller payloads, and less reliable and accurate than
    their Russian and Chinese counterparts.
        We judge that North Korea, Iran, and Iraq would view their ICBMs
    more as strategic weapons of deterrence and coercive diplomacy than as
    weapons of war. We assess that:

       North Korea could convert its Taepo Dong-I space launch
            vehicle (SLV) into an ICBM that could deliver a light payload
            (sufficient for a biological or chemical weapon) to the United
            States, albeit with inaccuracies that would make hitting large
            urban targets improbable. North Korea is more likely to
            weaponize the larger Taepo Dong-II as an ICBM that could
            deliver a several-hundred kilogram payload (sufficient for
            early generation nuclear weapons) to the United States. Most
            analysts believe it could be tested at any time, probably
            initially as an SLV, unless it is delayed for political
            reasons.
       Iran could test an ICBM that could deliver a several-hundred
            kilogram payload to many parts of the United States in the last
            half of the next decade using Russian technology and
            assistance. Most analysts believe it could test an ICBM capable
            of delivering a lighter payload to the United States in the
            next few years following the North Korean pattern.
              --Analysts differ on the likely timing of Iran's first test
            of an ICBM that could threaten the United States--assessments
            range from likely before 2010 and very likely before 2015
            (although an SLV with ICBM capability probably will be tested
            in the next few years) to less than an even chance of an ICBM
            test by 2015.
       Iraq could test a North Korean-type ICBM that could deliver
            a several-hundred kilogram payload to the United States in the
            last half of the next decade depending on the level of foreign
            assistance. Although less likely, most analysts believe it
            could test an ICBM that could deliver a lighter payload to the
            United States in a few years based on its failed SLV or the
            Taepo Dong-I, if it began development now.
              --Analysts differ on the likely timing of Iraq's first test
            of an ICBM that could threaten the United States-assessments
            range from likely before 2015, possibly before 2010 (foreign
            assistance would affect capability and timing) to unlikely
            before 2015.
       By 2015, Russia will maintain as many nuclear weapons on
            ballistic missiles as its economy will allow but well short of
            START I or II limitations.
       By 2015, China is likely to have tens of missiles capable of
            targeting the United States, including a few tens of more
            survivable, land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage. China tested its first mobile ICBM in August
            1999.

        Sales of ICBMs or SLVs, which have inherent ICBM capabilities and
    could be converted relatively quickly with little or no warning, could
    increase the number of countries able to threaten the United States.
    North Korea continues to demonstrate a willingness to sell its
    missiles. Although we judge that Russia or China are unlikely to sell
    an ICBM or SLV in the next fifteen years, the consequences of even one
    sale would be extremely serious.
        Several other means to deliver weapons of mass destruction to the
    United States have probably been devised, some more reliable than ICBMs
    that have not completed rigorous testing programs. For example,
    biological or chemical weapons could be prepared in the United States
    and used in large population centers, or short-range missiles could be
    deployed on surface ships. However, these means do not provide a nation
    the same prestige and degree of deterrence or coercive diplomacy
    associated with ICBMs.
        The proliferation of medium-range ballistic missiles (MRBMs)--
    driven primarily by North Korean No Dong sales-has created an
    immediate, serious, and growing threat to U.S. forces, interests, and
    allies, and has significantly altered the strategic balances in the
    Middle East and Asia. We judge that countries developing missiles view
    their regional concerns as one of the primary factors in tailoring
    their programs. They see their short- and medium-range missiles not
    only as deterrents but also as force-multiplying weapons of war,
    primarily with conventional weapons, but with options for delivering
    biological, chemical, and eventually nuclear weapons. South Asia
    provides one of the most telling examples of regional ballistic missile
    and nuclear proliferation:

       Pakistan has Chinese-supplied M-11 short-range ballistic
            missiles (SRBMs) and Ghauri MRBMs from North Korea.
       India has Prithvi I SRBMs and recently began testing the
            Agni II MRBM.
       We assess these missiles may have nuclear roles.

        Foreign assistance continues to have demonstrable effects on
    missile advances around the world, particularly from Russia and North
    Korea. Moreover, some countries that have traditionally been recipients
    of foreign missile technology are now sharing more amongst themselves
    and are pursuing cooperative missile ventures.
        We assess that countries developing missiles also will respond to
    U.S. theater and national missile defenses by deploying larger forces,
    penetration aids, and countermeasures. Russia and China each have
    developed numerous countermeasures and probably will sell some related
    technologies.
                                   discussion
    Introduction
        The worldwide ballistic missile proliferation problem has continued
    to evolve during the past year. The proliferation of technology and
    components continues. The capabilities of the missiles in the countries
    seeking to acquire them are growing, a fact underscored by North
    Korea's launch of the Taepo Dong-I in August 1998. The number of
    missiles in these countries is also increasing. Medium- and short-range
    ballistic missile systems, particularly if armed with weapons of mass
    destruction (WMD) warheads, already pose a significant threat to U.S.
    interests, military forces, and allies overseas. We have seen increased
    trade and cooperation among countries that have been recipients of
    missile technologies from others. Finally, some countries continue to
    work toward longer-range systems, including ICBMs.
        We expect the threat to the United States and its interests to
    increase over the next 15 years. However, projecting political and
    economic developments that could alter the nature of the missile threat
    many years into the future is virtually impossible. The threat facing
    the United States in the year 2015 will depend on our changing
    relations with foreign countries, the political situation within those
    countries, economic factors, and numerous other factors that we cannot
    predict with confidence.

       For example, 15 years ago the United States and the Soviet
            Union were superpower adversaries in the midst of the Cold War,
            with military forces facing off in central Europe and competing
            for global power. Today, by contrast, the differences that
            separated the two countries during that period have been
            replaced by differences expected between modern nation states.
       Iraq is another example; 15 years ago it shared common
            interests with the United States. Since Iraq's invasion of
            Kuwait in 1990, Washington and Baghdad have been in numerous
            military and diplomatic conflicts.
       Finally, we do not know whether some of the countries of
            concern will exist in 15 years in their current state or as
            suppliers of missiles and technology.

        Recognizing these uncertainties, we have projected foreign
    ballistic missile capabilities into the future largely based on
    technical capabilities and with a general premise that relations with
    the United States will not change significantly enough to alter the
    intentions of those states pursuing ballistic missile capabilities.
    Future annual reports will be able to take account of any contemporary
    information that alters our projections.

    The Evolving Missile Threat in the Current Proliferation Environment
        The new missile threats confronting the United States are far
    different from the Cold War threat during the last three decades.
    During that period, the ballistic missile threat to the United States
    involved relatively accurate, survivable, and reliable missiles
    deployed in large numbers. Soviet--and to a much lesser extent
    Chinese--strategic forces threatened, as they still do, the potential
    for catastrophic, nation-killing damage. By contrast, the new missile
    threats involve states with considerably fewer missiles with less
    accuracy, yield, survivability, reliability, and range-payload
    capability than the hostile strategic forces we have faced for 30
    years. Even so, the new systems are threatening, but in different ways.
        First, although the majority of systems being developed and
    produced today are short- or medium-range ballistic missiles, North
    Korea's three-stage Taepo Dong-I SLV demonstrated Pyongyang's potential
    to cross the 5,500-km ICBM threshold if it develops a survivable weapon
    for the system. Other potentially hostile nations could cross that
    threshold during the next 15 years. While it remains extremely unlikely
    that any potential adversary could inflict damage to the United States
    or its forces comparable to the damage that Russian or Chinese forces
    could inflict, emerging systems potentially can kill tens of thousands,
    or even millions of Americans, depending on the type of warhead, the
    accuracy, and the intended target.
    Classification of Ballistic Missiles by Range:
        Short-range ballistic missile (SRBM)................  Under 1,000 km
        Medium-range ballistic missile (MRBM)..............1,000 to 3,000 km
        Intermediate-range ballistic missile (IRBM)........3,000 to 5,500 km
        Intercontinental-range ballistic missile (ICBM).....   Over 5,500 km

        Second, many of the countries that are developing longer-range
    missiles probably assess that the threat of their use would complicate
    American decision-making during crises. Over the last decade, the world
    has observed that missiles less capable than the ICBMs the United
    States and others have deployed can affect another nation's decision-
    making process. Though U.S. potential adversaries recognize American
    military superiority, they are likely to assess that their growing
    missile capabilities would enable them to increase the cost of a U.S.
    victory and potentially deter Washington from pursuing certain
    objectives. Moreover, some countries, including some without hostile
    intent towards the United States, probably view missiles as a means of
    providing an independent deterrent and war-fighting capabilities.
        Third, the probability that a WMD-armed missile will be used
    against U.S. forces or interests is higher today than during most of
    the Cold War. Ballistic missiles, for example, were used against U.S.
    forces during the Gulf war. More nations now have longer-range missiles
    and WMD warheads. Missiles have been used in several conflicts over the
    past two decades, although not with WMD warheads. Nevertheless, some of
    the regimes controlling these missiles have exhibited a willingness to
    use WMD.
        Thus, acquiring long-range ballistic missiles armed with WMD will
    enable weaker countries to do three things that they otherwise might
    not be able to do: deter, constrain, and harm the United States. To
    achieve these objectives, these WMD-armed weapons need not be deployed
    in large numbers; with even a few such weapons, these countries would
    judge that they had the capability to threaten at least politically
    significant damage to the United States or its allies. They need not be
    highly accurate; the ability to target a large urban area is
    sufficient. They need not be highly reliable, because their strategic
    value is derived primarily from the threat (implicit or explicit) of
    their use, not the near certain outcome of such use. Some of these
    systems may be intended for their political impact as potential tenor
    weapons, while others may be built to perform more specific military
    missions, facing the United States with a broad spectrum of
    motivations, development timelines, and resulting hostile capabilities.
    In many ways, such weapons are not envisioned at the outset as
    operational weapons of war, but primarily as strategic weapons of
    deterrence and coercive diplomacy.
        The progress of countries in Asia and the Middle East toward
    acquiring longer-range ballistic missiles has been dramatically
    demonstrated over the past 18 months:

       Most notably, North Korea's three-stage Taepo Dong-I SLV has
            inherent, albeit limited, capabilities to deliver small
            payloads to ICBM ranges. Although the Taepo Dong-I satellite
            attempt in August 1998 failed, North Korea demonstrated several
            of the key technologies required for an ICBM, including
            staging. As a space launch vehicle, however, it did not
            demonstrate a payload capable of surviving atmospheric reentry
            at ICBM ranges. We judge that North Korea would be unlikely to
            pursue weaponizing a three-stage Taepo Dong-I as an ICBM,
            preferring instead to pursue the much more capable Taepo Dong-
            II, which we expect will be flight tested this year, unless it
            is delayed for political reasons.
       Pakistan flight-tested its 1,300 km range Ghauri missile,
            which it produced with North Korean assistance. (Pakistan also
            flight-tested the Shaheen I SRBM.)
       Iran flight-tested its 1,300 km range Shahab-3--a version of
            North Korea's No Dong, which Iran has produced with Russian
            assistance.
       India flight-tested its Agni II MRBM, which we estimate will
            have a range of about 2,000 km.
       China conduced the first flight test of its DF-31 mobile
            ICBM in August 1999; it will have a range of about 8,000 km.

        Many of these countries probably have considered ballistic missile
    defense countermeasures. Historically, the development and deployment
    of missile defense systems have been accompanied by the development of
    countermeasures and penetration aids by potential adversaries, either
    in reaction to the threat or in anticipation of it. The Russians and
    Chinese have had countermeasure programs for decades and are probably
    willing to transfer some related technology to others. We expect that
    during the next 15 years, countries other than Russia and China will
    develop countermeasures to Theater and National Missile Defenses.
    Threat Availability Before ``Deployment''
        Emerging long-range missile powers do not appear to rely on robust
    test programs to ensure a missile's accuracy and reliability--as the
    United States and the Soviet Union did during the Cold War. Similarly,
    deploying a large number of long-range missiles to dedicated, long-term
    sites--as the United States and the Soviet Union did--is not
    necessarily the path emerging long-range missile powers will choose. In
    many cases, a nation may decide that the ability to threaten with one
    or two long-range missiles is sufficient for its doctrinal or
    propaganda needs. China, for example, has only about 20 ICBMs; its
    doctrine requires only that it be able to hold a significant portion of
    an aggressor's population at risk.
        With shorter flight test programs--perhaps only one test--and
    potentially simple deployment schemes, the time between the initial
    flight test and the availability of a missile for military use is
    likely to be shortened. Once a missile has performed successfully
    through its critical flight functions, it would be available for the
    country to use as a threat or in a military role. Thus, we project the
    year for a first flight test rather than the projected date for a
    missile's ``deployment'' as the initial indication of an emerging
    threat. Moreover, using the date of the first projected flight test as
    the initial indicator of the threat recognizes that emerging long-range
    missile powers may not choose to deploy a large number of missiles and
    that an adversary armed with even a single missile capable of
    delivering a WMD-payload may consider it threatening. Using the first
    flight test results in threat projections a few years earlier than
    those based on traditional definitions of deployment, which may not
    apply as well to the emerging threats.
    Potential ICBM Threats to the United States
        We project that during the next 15 years the United States most
    likely will face ICBM threats from Russia, China, and North Korea,
    probably from Iran, and possibly from Iraq, although the threats will
    consist of dramatically fewer weapons than today because of significant
    reductions we expect in Russian strategic forces.

       The Russian threat will continue to be the most robust and
            lethal, considerably more so than that posed by China, and
            orders of magnitude more than that posed by the other three.
       Initial North Korean, Iranian, and Iraqi ICBMs would
            probably be fewer in number--a few to tens rather than hundreds
            or thousands, constrained to smaller payload capabilities, and
            less reliable and accurate than their Russian and Chinese
            counterparts.
       Countries with emerging ICBM capabilities are likely to view
            their relatively few ICBMs more as weapons of deterrence and
            coercive diplomacy than as weapons of war, recognizing that
            their use could bring devastating consequences. Thus, the
            emerging threats posed to the United States by these countries
            will be very different than the Cold War threat.

        North Korea. After Russia and China, North Korea is the most likely
    to develop ICBMs capable of threatening the United States during the
    next 15 years.

       North Korea attempted to orbit a small satellite using the
            Taepo Dong-I SLV in August 1998, but the third stage failed
            during powered flight; other aspects of the flight, including
            stage separation, appear to have been successful.
       If it had an operable third stage and a reentry vehicle
            capable of surviving ICBM flight, a converted Taepo Dong-I SLV
            could deliver a light payload to the United States. In these
            cases, about two-thirds of the payload mass would be required
            for the reentry vehicle structure. The remaining mass is
            probably too light for an early generation nuclear weapon but
            could deliver biological or chemical (BW/CW) warfare agent.
       Most analysts believe that North Korea probably will test a
            Taepo Dong-II this year, unless delayed for political reasons.
            A two-stage Taepo Dong-II could deliver a several-hundred
            kilogram payload to Alaska and Hawaii, and a lighter payload to
            the western half of the United States. A three-stage Taepo
            Dong-II could deliver a several-hundred kilogram payload
            anywhere in the United States.
       North Korea is much more likely to weaponize the more
            capable Taepo Dong-II than the three-stage Taepo Dong-II as an
            ICBM.

        Iran. Iran is the next hostile country most capable of testing an
    ICBM capable of delivering a weapon to the United States during the
    next 15 years.

       Iran could test an ICBM that could deliver a several-hundred
            kilogram payload to many parts of the United States in the
            latter half of the next decade, using Russian technology and
            assistance.
       Iran could pursue a Taepo Dong-type ICBM. Most analysts
            believe it could test a three-stage ICBM patterned after the
            Taepo Dong-I SLV or a three-stage Taepo Dong-II-type ICBM,
            possibly with North Korean assistance, in the next few years.
       Iran is likely to test an SLV by 2010 that--once developed--
            could be converted into an ICBM capable of delivering a
            several-hundred kilogram payload to the United States.
       Analysts differ on the likely timing of Iran's first flight
            test of an ICBM that could threaten the United States.
            Assessments include:

              --likely before 2010 and very likely before 2015 (noting that
            an SLV with ICBM capabilities will probably be tested within
            the next few years);
              --no more than an even chance by 2010 and a better than even
            chance by 2015;
              --and less than an even chance by 2015.

        Iraq. Although the Gulf war and subsequent United Nations
    activities destroyed much of Iraq's missile infrastructure, Iraq could
    test an ICBM capable of reaching the United States during the next 15
    years.

       After observing North Korean activities, Iraq most likely
            would pursue a three-stage Taepo Dong-II approach to an ICBM
            (or SLV), which could deliver a several-hundred kilogram
            payload to parts of the United States. If Iraq could buy a
            Taepo Dong-II from North Korea, it could have a launch
            capability within months of the purchase; if it bought Taepo
            Dong engines, it could test an ICBM by the middle of the next
            decade. Iraq probably would take until the end of the next
            decade to develop the system domestically.
       Although much less likely, most analysts believe that if
            Iraq were to begin development today, it could test a much less
            capable ICBM in a few years using Scud components and based on
            its prior SLV experience or on the Taepo Dong-I.
       If it could acquire No Dongs from North Korea, Iraq could
            test a more capable ICBM along the same lines within a few
            years of the No Dong acquisition.
       Analysts differ on the likely timing of Iraq's first flight
            test of an ICBM that could threaten the United States.
            Assessments include unlikely before 2015; and likely before
            2015, possibly before 2010--foreign assistance would affect the
            capability and timing.

        Russia. Russia's strategic offensive forces are experiencing
    serious budget constraints but will remain the cornerstone of its
    military power. Russia expects its forces to deter both nuclear and
    conventional military threats and is prepared to conduct limited
    nuclear strikes to warn off an enemy or alter the course of a battle.

       Russia currently has about 1,000 strategic ballistic
            missiles with 4,500 warheads.
       Its strategic force will remain formidable through and
            beyond 2015, but the size of this force will decrease
            dramatically--well below arms control limits--primarily because
            of budget constraints.
       Russia will maintain as many strategic missiles and
            associated nuclear warheads as it believes it can afford, but
            well short of START I or II limitations.
              --If Russia ratifies START II, with its ban on multiple
            warheads on ICBMs, it would probably be able to maintain only
            about half of the weapons it could maintain without the ban.
       We judge that an unauthorized or accidental launch of a
            Russian strategic missile is highly unlikely so long as current
            technical and procedural safeguards are in place.

        China. Chinese strategic nuclear doctrine calls for a survivable
    long-range missile force that can hold a significant portion of the
    U.S. population at risk in a retaliatory strike.

       China's current force of about 20 CSS-4 ICBMs can reach
            targets in all of the United States.
       Beijing also is developing two new road-mobile, solid
            propellant ICBMs.
              --It conducted the first flight test of the mobile DF-31 ICBM
            in August 1999; we judge it will have a range of about 8,000 km
            and will be targeted primarily against Russia and Asia.
              --We expect a test of a longer range mobile ICBM within the
            next several years; it will be targeted primarily against the
            United States.
       China is developing the JL-2 SLBM, which we expect to be
            tested within the next decade. The JL-2 probably will be able
            to target the United States from launch areas near China.
       By 2015, China will likely have tens of missiles targeted
            against the United States, having added a few tens of more
            survivable land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage.
       China has had the technical capability to develop multiple
            RV payloads for 20 years. If China needed a multiple-RV (MRV)
            capability in the near term, Beijing could use a DF-31-type RV
            to develop and deploy a simple MRV or multiple independently
            targetable reentry vehicle (MIRV) \1\ for the CSS-4 in a few
            years. MIRVing a future mobile missile would be many years off.
    ---------------------------------------------------------------------------
        \1\ An MRV system releases multiple RVs along the missile's linear
    flight path, often at a single target; a MIRV system can maneuver to
    several different release points to provide targeting flexibility.
    ---------------------------------------------------------------------------
       China is also significantly improving its theater missile
            capabilities and is increasing the size of its SRBM force
            deployed opposite Taiwan.
       We assess that an unauthorized launch of a Chinese strategic
            missile is highly unlikely.

    Foreign Assistance
        Foreign assistance continues to have demonstrable effects on
    missile advances around the world. Moreover, some countries that have
    traditionally been recipients of foreign missile technology are now
    sharing more amongst themselves and are pursuing cooperative missile
    ventures.

       Russian missile assistance continues to be significant.
       China continues to contribute to missile programs in some
            countries.
       North Korea may expand sales.

        Moreover, changes in the regional and international security
    environment--in particular, Iran's Shahab-3 missile test and the Indian
    and Pakistani missile and nuclear tests--probably will fuel missile and
    WMD interests in the region.
        Sales of ICBMs or SLVs, which have inherent ICBM capabilities,
    could further increase the number of countries that will be able to
    threaten the United States with a missile strike. North Korea continues
    to demonstrate a willingness to sell its missiles and related
    technologies and will probably continue doing so, perhaps under the
    guise of selling SLVs. In the past, we judged that political conditions
    made the sale of a Russian or Chinese ICBM unlikely and that the
    geopolitical situation would not change enough for either to decide
    that the sale of an ICBM would be in its national interest. We have not
    detected the transfer of a complete ICBM by Russia or China, nor do we
    have any information to indicate either plans to transfer one.
    Projecting the likelihood of such a transfer 15 years into the future
    is very uncertain, driven in part by unpredictable future economic
    conditions, how Moscow will perceive its position vis-a-vis the West,
    and future Russian and Chinese perceptions of U.S. ballistic missile
    defenses. As we attempt to project the politico-military-economic
    environment for that period, we continue to judge it unlikely that
    Moscow or Beijing would decide that the financial and perhaps strategic
    inducements to sell a complete ICBM, SLV, or the technologies
    tantamount to a complete ICBM, would outweigh the perceived political
    and economic risks of doing so.\2\
    ---------------------------------------------------------------------------
        \2\ The sale of an ICBM is prohibited by the START Treaty.
    ---------------------------------------------------------------------------
    Warning Times and our Ability to Forecast Missile Development and
            Acquisition
        In our 1998 annual report, we stated we had high confidence that we
    could provide warning five years before deployment that a potentially
    hostile country was trying to develop and deploy an ICBM. Because
    countries of concern could threaten to use ballistic missiles following
    limited flight-testing and before a missile is deployed in the
    traditional sense, we broadened our warning in the 1998 update
    memorandum to encompass the first successful flight test as the
    beginning of an ``initial threat availability.''
        Our ability to provide warning for a particular country is depends
    highly on our collection capabilities. For some countries, we have
    relatively large bodies of evidence on which to base our assessments;
    for others, our knowledge of the programs being pursued is limited. Our
    monitoring and warning about North Korea's efforts to achieve an ICBM
    capability constitute an important case study on warning. In 1994, we
    were able to give five years warning of North Korea's efforts to
    acquire an ICBM capability. At that time, the Intelligence Community
    judged that:

       The Taepo Dong-I was a two-stage, medium-range missile that
            could be tested in 1994 and deployed as early as 1996.
       The Taepo Dong-II was a larger two-stage missile that would
            provide Pyongyang and other countries the potential to deliver
            nuclear weapons to parts of the United States, and biological
            and chemical weapons further. The Community judged that the
            Taepo Dong-II flight test program would begin within a few
            years of 1994 with initial deployment in 2000 or later.

        Thus, the Intelligence Community warned that North Korea was
    pursuing an ICBM capability and would flight test an ICBM (the Taepo
    Dong-II) in the mid- to late l990s. When North Korea did not flight
    test either Taepo Dong missile until 1998, and then used the Taepo
    Dong-I as a space launch vehicle, it became clear that the Intelligence
    Community had:

       Overestimated that North Korea would begin flight testing
            the Taepo Dong-I and Taepo Dong-II missiles years earlier than
            turned out to be the case.
       Projected correctly the timing of a North Korean missile
            with the potential to deliver payloads to the ICBM range of
            5,500-km.
       Underestimated the capabilities of the Taepo Dong-II by
            failing to anticipate the use of the third stage.

        North Korea demonstrated intercontinental-range booster
    capabilities roughly on the timetable projected in 1994, but with a
    completely unanticipated vehicle configuration. The Intelligence
    Community had expected North Korea to achieve an ICBM-range capability
    initially with the two-stage Taepo Dong-II, not the Taepo Dong-II with
    an unguided third stage. North Korea's use of the Taepo Dong-I with a
    third stage as a space launch vehicle was completely unexpected. Until
    the flight test, the Intelligence Community was unaware of the third
    stage and the intended use of the Taepo Dong-I as a space launch
    vehicle.
        Detecting or suspecting a missile development program and
    projecting the timing of the emerging threat, although difficult, are
    easier than forecasting the vehicle's configuration or performance with
    accuracy. Thus, we have more confidence in our ability to warn of
    efforts by countries to develop ICBMs than we have in our ability to
    describe accurately the missile configurations that will comprise that
    threat, especially years prior to flight testing. Furthermore,
    countries practice denial and deception to hide or mask their
    intentions--for example, testing an ICBM as a space launch vehicle.
        We continue to judge that we may not be able to provide much
    warning if a country purchased an ICBM or if a country already had an
    SLV capability. Nevertheless, the initiation of an SLV program is an
    indicator of a potential ICBM program. North Korea and other countries,
    such as Iran and an unconstrained Iraq, could develop an SLV booster,
    then flight-test it as an ICBM with a reentry vehicle (RV) with little
    or no warning. Thus, we consider space launch vehicles, especially in
    the hands of countries hostile to the United States, to have
    significant ballistic missile potential.
        We also judge that we may not be able to provide much, if any,
    warning of a forward-based ballistic missile or land-attack cruise
    missile (LACM) threat to the United States. Moreover, LACM development
    can draw upon dual-use technologies. We expect to see acquisition of
    LACMs by many countries to meet regional military requirements.
    Space Launch Vehicle (SLV) Conversion
        Nations with SLVs could convert them into ICBMs relatively quickly
    with little or no chance of detection before the first flight test.
    Such a conversion would include the development of a reentry vehicle
    (RV). A nation could try to buy an SLV with the intent to convert it
    into an ICBM; detection of the sale should provide a few years of
    warning before a flight test, although we are not confident that we
    could detect a covert sale. Finally, many SLVs would be cumbersome as
    converted military systems and could not be made readily survivable, a
    task that in many cases would be technologically and economically
    formidable.
        Countries might mask their ICBM developments as SLV programs. They
    could test the complete booster and in most cases the guidance system,
    which would have to be reprogrammed to fly a ballistic missile
    trajectory. They could not mask a warhead reentry under the guise of a
    space launch. Nevertheless, they could develop RVs and maintain them
    untested for future use, albeit with significantly reduced confidence
    in their reliability.

       If the country had Russian or Chinese assistance in a covert
            development effort, it could have relatively high confidence
            that the RV would survive and function properly.
       If a country developed an untested RV without foreign
            assistance, its confidence would diminish, but we could not be
            confident it would fail. Significant amounts of information
            about reentry vehicles are available in open sources. A low
            performing RV with high flight stability would be a logical
            choice for developing an ICBM RV with minimal, or no, testing.
            The developing country could have some confidence that the
            system would survive reentry, although confidence in its proper
            delivery of the weapon would be lower without testing.
    Alternative Threats to the United States
        Several other means to deliver WMD to the United States have
    probably been devised, some more reliable than ICBMs that have not
    completed rigorous testing and validation programs. The goal of an
    adversary would be to move the weapon within striking distance without
    a long-range ICBM. Most of these means, however, do not provide the
    same prestige and degree of deterrence or coercive diplomacy associated
    with long-range missiles, but they might be the means of choice for
    terrorists.
    Forward-Based Threats
        Several countries are technically capable of developing a missile-
    launch mechanism to use from forward-based ships or other platforms to
    launch SRBMs and MRBMs, or land-attack cruise missiles against the
    United States. Some countries may develop and deploy a forward-based
    system during the period of the next 15 years.
        A short- or medium-range ballistic missile could be launched at the
    United States from a forward-based sea platform positioned within a few
    hundred kilometers of U.S. territory. If the attacking country were
    willing to accept significantly reduced accuracy for the missile,
    forward-basing on a sea-based platform would not be a major technical
    hurdle. The reduced accuracy in such a case, however, would probably be
    better than that of some early ICBMs. The simplest method for launching
    a ship-borne ballistic missile would be to place a secured TEL onboard
    the ship and launch the missile from its TEL. If accuracy were a major
    concern, the missile and launcher would be placed on a stabilization
    platform to compensate for wave movement of the ocean, or the country
    would need to add satellite-aided navigation to the missile.
        A concept similar to a sea-based ballistic missile launch system
    would be to launch cruise missiles from forward-based platforms. This
    method would enable a country to use cruise missiles acquired for
    regional purposes to attack targets in the United States.

       A country could launch cruise missiles from fighter, bomber,
            or commercial transport aircraft outside U.S. airspace. U.S.
            capability to detect planes approaching the coast, and the
            limited range of fighter and bomber aircraft of most countries,
            probably would preclude the choice of military aircraft for the
            attack. Using a commercial aircraft, however, would be feasible
            for staging a covert cruise missile attack, but it still would
            be difficult.
       A commercial surface vessel, covertly equipped to launch
            cruise missiles, would be a plausible alternative for a
            forward-based launch platform. This method would provide a
            large and potentially inconspicuous platform to launch a cruise
            missile while providing at least some cover for launch
            deniability.
       A submarine would have the advantage of being relatively
            covert. The technical sophistication required to launch a
            cruise missile from a submarine torpedo or missile tube most
            likely would require detailed assistance from the defense
            industry of a major naval power.

    Non-Missile WMD Threats to the United States
        Although non-missile means of delivering WMD do not provide the
    same prestige or degree of deterrence and coercive diplomacy associated
    with an ICBM, such options are of significant concern. Countries or
    non-state actors could pursue non-missile delivery options, most of
    which:

       Are less expensive than developing and producing ICBMs.
       Can be covertly developed and employed; the source of the
            weapon could be masked in an attempt to evade retaliation.
       Probably would be more reliable than ICBMs that have not
            completed rigorous testing and validation programs.
       Probably would be more accurate than emerging ICBMs over the
            next 15 years.
       Probably would be more effective for disseminating
            biological warfare agent than a ballistic missile.
       Would avoid missile defenses.

        The requirements for missile delivery of WMD impose additional,
    stringent design requirements on the already difficult technical
    problem of designing such weapons. For example, initial indigenous
    nuclear weapon designs are likely to be too large and heavy for a
    modest-sized ballistic missile but still suitable for delivery by ship,
    truck, or even airplane. Furthermore, a country (or non-state actor) is
    likely to have only a few nuclear weapons, at least during the next 15
    years. Reliability of delivery would be a critical factor; covert
    delivery methods could offer reliability advantages over a missile. Not
    only would a country want the warhead to reach its target, it would
    want to avoid an accident with a WMD warhead at the missile-launch
    area. On the other hand, a ship sailing into a port could provide
    secure delivery to limited locations, and a nuclear detonation, either
    in the ship or on the dock, could achieve the intended purpose. An
    airplane, either manned or unmanned, could also deliver a nuclear
    weapon before any local inspection, and perhaps before landing.
    Finally, a nuclear weapon might also be smuggled across a border or
    brought ashore covertly.
        Foreign non-state actors, including some terrorist or extremist
    groups, have used, possessed, or are interested in weapons of mass
    destruction or the materials to build them. Most of these groups have
    threatened the United States or its interests. We cannot count on
    obtaining warning of all planned terrorist attacks, despite the high
    priority we assign to this goal.
        Recent trends suggest the likelihood is increasing that a foreign
    group or individual will conduct a terrorist attack against U.S.
    interests using chemical agents or toxic industrial chemicals in an
    attempt to produce a significant number of casualties, damage
    infrastructure, or create fear among a population. Past terrorist
    events, such as the World Trade Center bombing and the Aum Shinrikyo
    chemical attack on the Tokyo subway system, demonstrated the
    feasibility and willingness to undertake an attack capable of producing
    massive casualties.
    Immediate Theater Missile Threats to U.S. Interests and Allies
        The proliferation of MRBMs--driven primarily by North Korean No
    Dong sales--has created an immediate, serious, and growing threat to
    U.S. forces, interests, and allies in the Middle East and Asia, and has
    significantly altered the strategic balances in the regions.

       Iran's flight test of its Shahab-3, which is based on the No
            Dong, and Indian and Pakistani missile and nuclear tests may
            fuel additional interest in MRBMs.
       Pakistan has M-11 SRBMs from China and Ghauri MRBMs from
            North Korea; we assess both may have a nuclear role.
       India has Prithvi I SRBMs and recently began testing the
            Agni II MRBM; we assess both may have a nuclear role.

        We judge that countries developing missiles view their regional
    concerns as one of the primary factors in tailoring their programs.
        They see their short- and medium-range missiles not only as
    deterrents but also as force-multiplying weapons of war, primarily with
    conventional weapons but with options for delivering biological,
    chemical, and eventually nuclear weapons.
    Penetration Aids and Countermeasures
        We assess that countries developing ballistic missiles would also
    develop various responses to U.S. theater and national defenses. Russia
    and China each have developed numerous countermeasures and probably are
    willing to sell the requisite technologies.

       Many countries, such as North Korea, Iran, and Iraq probably
            would rely initially on readily available technology--including
            separating RVs, spin-stabilized RVs, RV reorientation, radar
            absorbing material (RAM), booster fragmentation, low-power
            jammers, chaff, and simple (balloon) decoys--to develop
            penetration aids and countermeasures.
       These countries could develop countermeasures based on these
            technologies by the time they flight test their missiles.

        Foreign espionage and other collection efforts are likely to
    increase. China, for example, has been able to obtain significant
    nuclear weapons information from espionage, contact with scientists
    from the United States and other countries, publications and
    conferences, unauthorized media disclosures, and declassified U.S.
    weapons information. We assess that China, Iran, and others are
    targeting U.S. missile information as well.

        The Chairman. That proves fascinating and frightening to
    me. I hope that everybody here is aware that you were
    emphasizing that North Korea is a threat now. And it will be an
    even bigger threat in a couple of years. Iran will be a threat
    in the next 10 years and Iraq might be.
        But I do not understand people who say, well, we do not
    need any missile defense in the United States because we have
    all these treaties. Sam Rayburn used to laugh as he told about
    Will Rogers, and everybody here that is not old enough to
    remember Will Rogers, he was a popular American entertainer, he
    used to say at that time that ``the United States never lost a
    war or won a treaty.'' And that was about right.
        Mr. Walpole, a commission chaired by former Secretary of
    Defense Rumsfeld released a study last year which found in part
    between Iran and Iraq, and I am quoting specifically and
    precisely, ``all of these would be able to inflict major
    destruction on the United States within about 5 years of a
    decision to acquire such capabilities.'' Then he said 10 years
    in the case of Iraq. Do you agree with that?
        Mr. Walpole. I know they have since modified their Iraq
    judgments, and backed that back to 5 years as well. As you can
    see from our unclassified piece and you would see in the
    classified report as well, we have the countries having the
    capability of testing an ICBM well within that 5-year period of
    time, actually earlier than that. But that is what I said
    before about the Rumsfeld report; it talked about what the
    country could do and did not walk through the likelihood. And
    as you can see from our judgment, we certainly have countries
    that could do things sooner. We think they are likely to take a
    little longer.
        The Chairman. Do you know Don Rumsfeld personally?
        Mr. Walpole. Yes; in fact, as we started this report, we
    decided to use the former commissioners as some outside experts
    to read through the report, and let us know what they thought.
    We thought here is a ready-made group of people who know all
    the intelligence; they have worked it inside and out. And while
    we did not agree on everything, and Don will tell you that, I
    just got a fax from him today saying he thought the report was
    great.
        The Chairman. He said what?
        Mr. Walpole. I did not bring the letter with me, but he
    said he thought it was a very good report. Now, all he had at
    this point was the unclassified. We will provide him next week
    with the classified.
        The Chairman. What did the Rumsfeld report say? As I
    understood, it said that the United States may have less than 5
    years in which to deploy a missile defense to protect the
    American people, but you said that you do not always agree. How
    does your National Intelligence Estimate contrast with the
    Rumsfeld report with regard to the timeliness of emergence of
    Iranian, North Korean and Iraqi threats? Do you have a
    difference with them, or do you agree with them, or what?
        Mr. Walpole. On what the country could do, we probably had
    the countries getting weapons even faster than what they were
    suggesting. On what the country was likely to do, they did not
    address that. They did not address what Iran was likely to do
    or what Iraq was likely to do, so I do not know how they would
    view that, other than their comments to us as we were walking
    through this. Their report did not address that.
        The Chairman. Some of the questions I am asking, I know
    what your answer is going to be, but I want you to answer them
    for the record. One is, should the Senate, U.S. Senate where I
    work, be concerned about continuing reports that China may be
    pursuing multiple independently targetable reentry vehicles,
    that is to say MIRV's; should we be concerned about this?
        Mr. Walpole. Part of that would defend on how you would
    define concern. They have had the technical capability to put
    multiple reentry vehicles on the CSS-4 for quite a while and
    have not pursued that. They probably view the silos as
    vulnerable, our systems, that is why they want to move to a
    mobile system.
        The Chairman. Which they are.
        Mr. Walpole. Which they are. So I do not know whether we
    should be concerned that they would do that because they may
    view it just as throwing good money after bad, on the side they
    are vulnerable. At the same time, they certainly are capable of
    doing that and that is why I pointed out in my statement here
    that they could do a multiple payload off that CSS-4 in just a
    matter of a few years if they really thought they needed to.
        The Chairman. Well, I have seen three or four recent
    intelligence assessments, and none of them paid a great deal of
    attention to the possibility of an accidental or unauthorized
    launch from the former Soviet Union. How do you feel? Do you
    believe that the danger of such a launch has increased,
    decreased, or remained substantially the same during the past 5
    years?
        Mr. Walpole. Again, as I said, we judge an accidental or
    unauthorized launch from both Russia and China as highly
    unlikely. In the case of Russia, obviously we would want to
    watch for turmoil that could erupt, that could cause some
    problems with procedural safeguards, but the way things are and
    the way we see them, at least for the foreseeable future that
    is highly unlikely.
        The Chairman. Now, the NIA 9519 assumed that the missile
    technology control regime will continue significantly to limit
    international transfers of missiles and components and related
    technology. Now does the current NIE make such an assumption?
        Mr. Walpole. It does not. That is actually an interesting
    question not only for me as having worked the estimate, but
    personally back in my career. For a number of years, I was an
    intelligence analyst in the Bureau of Intelligence and Research
    in the Department of State and then later was Deputy Assistant
    Secretary for Defense in Arms Control, and in both those
    capacities, I ended up working to help stop the Condor II
    program. Which, for those that do not know, that was a program
    being worked on by Argentina, Iraq, and Egypt, and had it
    completed to fruition, it would have made the No Dong and the
    Taepo Dong-I--it would have been a much better system.
        And so there I think we have had an example where
    nonproliferation efforts, the MTCR, worked extremely well and
    put a stop to the program. We did not make an assumption in our
    estimate that nonproliferation efforts were going to succeed
    and stop programs. We based our judgments on what the countries
    are capable of doing, what technology transfers we see going on
    today, and projecting those types of transfers out into the
    future. It would be wonderful if those transfers were absent,
    but my perception of proliferation is, there are four aspects.
    There is preventing acquisition. There is rollback, which I
    think is the case of the Condor II. There is deterring use,
    which we would like to continue to see occurring between India
    and Pakistan, and then there is making sure we have the ability
    to operate against the systems and at least deal with the
    systems in one way or another.
        So that is really the perception that we took in the
    report, is that it is going to have an effect in some areas, in
    some cases people are going to skirt these restrictions, and
    the program is going to proceed.
        The Chairman. Well, you talk a lot about, in the report and
    elsewhere, about China's commitment to the missile technology
    control regime. How do you evaluate it, China's commitment to
    the missile technology control regime?
        Mr. Walpole. I am trying to figure out how to answer that
    one. In part, I am the wrong guy to be asking that of because
    it is really more directed toward policy. From an intelligence
    perspective, as I indicated, China's assistance to foreign
    countries continues to be of concern to us.
        The Chairman. How about Russia?
        Mr. Walpole. The same.
        The Chairman. Now the NIE 9519 assumed that no country with
    ICBM's will sell them. Does the current NIE make such an
    assumption?
        Mr. Walpole. The current NIE judges that it is unlikely
    that a country would sell them, but notes that there are
    conditions that we have to continue to monitor. That it is
    extremely uncertain to project that far, 15 years into the
    future. That is why we have right up front, both in the
    statement and the NIE to remind us that--15 years ago you and I
    were in the same group talking about the IMF treaty. Now, I was
    sitting back behind Secretary Shultz at the time. But that was
    a totally different Soviet Union than we are facing today. And
    I do not know that 15 years from now if it will be totally
    different again. So it is hard to project that.
        The Chairman. I do not know whether we will be here 15
    years from now, since I do not know whether we will be paying
    enough attention to it.
        You know, it seems to me that the increasing availability
    of dual-use technologies, particularly through the space launch
    programs, is enhancing the ability of governments to produce
    ballistic missiles and reentry vehicles? What do you think
    about that?
        Mr. Walpole. If I may take that a piece at a time. To
    produce the boosters, the answer is yes. Really there is not a
    whole lot of difference between a space launch vehicle and a
    missile. There can be if you design them differently, but there
    does not have to be. The primary difference is the missile has
    a reentry vehicle. It has a weapon on top; the space launch
    vehicle does not. You have to modify, you have to reprogram the
    guidance system to fly a different trajectory if you do not
    want to put your RV in orbit, if you are trying to hit some
    target somewhere.
        So countries that do not already have a robust missile or
    space launch vehicle program would gain a lot from working with
    someone else that already has that, on a space launch program
    that could help them with the missile program.
        The Chairman. I want you to talk about that because I have
    a question about the limitations contained in the START Treaty.
    Russia had been constrained in its ability to set up space
    launch facilities in foreign countries such as Iran and China,
    but the Clinton administration has offered to change the START
    Treaty and give Russia the opportunity to locate as many as
    three new space launch facilities outside of its own territory.
    What will be the impact on U.S. intelligence capabilities if
    Russia were allowed to locate or designate a space launch
    facility in, say, China or in Iran?
        Mr. Walpole. It would provide Russia an ability to share
    technologies in a manner that would look like it was all for
    space launch, that could help the country with missiles. And so
    discerning whether it was missile or space launch alone would
    be difficult. I think that is best exemplified by what we
    called the Taepo Dong-I last year. When it first flew we called
    it a missile. For a couple of days we kept calling it a
    missile. Now you hear it is being called a space launch
    vehicle. That should tell you something about the difference
    between the two. So yes, it would make our job more difficult
    in being able to explain to someone whether something that was
    transferred was purely for space launch or was going to be used
    for a missile.
        The Chairman. Why are such a large number of countries
    including Libya, Syria, Iran, Iraq, North Korea, India and
    Pakistan pursuing long-range ballistic missile systems? All of
    a sudden, they are on the front pages. Why are they doing this?
        Mr. Walpole. Well, they view them as force-multiplying
    weapons of war. They have regional concerns. They want to be
    able to reach regional adversaries. Now, in some cases, the
    countries are going to want to reach a little further, and that
    is where we lead in with North Korea and Iran. There is an
    interest there in being able to reach the United States. Now
    whether they do that under the guise of a space launch vehicle
    program or an outright show of an ICBM remains to be seen.
        The Chairman. I was very much interested when Pakistan did
    their little bit, everybody was concentrating on the dispute
    between India and Pakistan, and they were planning on who is
    going to produce a nuclear blast. But I think that their fear
    and apprehension about China had as much to do with that as
    anything, but there is also an opinion about why they want to
    possess such a capability. Do you have any additional opinions
    that you want to state for the record? Why would they spend the
    money? Why would they do this?
        Mr. Walpole. Well again, it is a force-multiplying weapon
    of war. If they can purchase the missiles from somebody else
    they do not have to go through long development time to get
    there, and right now, Pakistan's missiles do not reach all of
    India. So they may want to go after something that would give
    them a little longer range, then they could cover those
    targets.
        The Chairman. Then we sit back in the United States while
    they figure out long-range missiles and say we do not need a
    missile defense system. That is what some Senators are telling
    me. They are trying to push me into paying more attention to
    the ABM Treaty and the treaty that the President is considering
    at this time. But, the President made a commitment to me in
    writing that he would send ABM up maybe 2 years ago and I am
    going to hold him to his word. And he has not mentioned a
    syllable about that, nor has any spokesman.
        The black market countries, they pay well. I think that is
    a given, is it not?
        Mr. Walpole. Now we are getting into an area where I do not
    want to tread into classified information. But let us say that
    some of the assistance that we see from multiple countries,
    some of it appears that the government leaders might be aware
    of it and in other cases government leaders are not aware of
    it. It is just entities in the country working on it. Let me
    just leave that one at that.
        The Chairman. I have enjoyed this. I have been able to be
    candid about it, I have enjoyed having you to myself, even
    though I know that the other Senators will probably want to
    file some questions in writing, and I know you will respond to
    them in writing.
        I have one final question. If you will not answer it, I
    will understand. But as a United States citizen in this year of
    our Lord, do you, sir, want to create a national missile
    defense for the United States of America?
        Mr. Walpole. I do not think as an intelligence officer I
    even get to answer that question. I might answer that within
    the walls of my own home to my wife, but that is probably as
    far as that one goes.
        The Chairman. I will not push you further. I know that Joe
    Biden would have enjoyed an exchange with you, as well as the
    rest of the Senators. But just speaking for myself, I certainly
    appreciate the efforts you have made to come here today and to
    be so helpful in making a record for us, which we are trying to
    do. I often say that the best speeches that I make are ones
    that I do not make until I get in the car going back home at
    night. I wish I could have one to deliver now. Do you have
    anything else to add to what you have said?
        Mr. Walpole. No. I think I built everything into the
    statement.
        The Chairman. Well, I think you have done exceedingly well.
    And I compliment you, sir. I thank you for coming.
        Mr. Walpole. Thank you.
        The Chairman. And there being no further business, the full
    committee will stand in recess.
        [Whereupon, at 3:45 p.m., the hearing was adjourned.]
                              A P P E N D I C E S

                                  ----------

                                   APPENDIX 1

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                        April 20, 1999.

                                   MEMORANDUM

    To: Republican Members, Committee on Foreign Relations
    Through: James W. Nance
    From: Marshall Billingslea and Sherry Grandjean
    Subject: Current and Growing Missile Threats to the United States and
                the Need for Ballistic Missile Defense

        The Committee will hold a hearing on the ballistic missile threat
    to the United States and the need for a national missile defense on
    Tuesday, April 20, at 9:30 AM in SD-562. The first witness will be the
    Honorable Jim Schlesinger, former Secretary of Defense. A second panel
    will be comprised of the Honorable Bill Schneider, former
    Undersecretary of State for Security Assistance, Science and
    Technology, and the Honorable Jim Lilley, former Ambassador to China.
    Senator Hagel will preside.

        Attachment.

     The Current and Growing Ballistic Missile Threat to the United States

    Introduction and Key Judgment
        The ballistic missile threat to the United States is present, and
    growing. A number of countries possess the capability today to hold
    U.S. cities hostage to the threat of ballistic missile attack. Both
    Russia and China have long fielded nuclear intercontinental ballistic
    missiles that are targeted, or are capable of being rapidly retargeted,
    at the United States. Several other countries, such as North Korea,
    Iran, India, and Pakistan, are making rapid progress in the development
    of missile systems with intercontinental ranges. (Iraq, too, can be
    expected to join this club in the absence of UNSCOM inspections).
    Moreover, a large number of countries possess the capacity to mount a
    ship-based, short range ballistic missile attack against the United
    States and its territories.
        The spread of ballistic missiles and missile production capability
    is global in character, and is not limited to any specific geographic
    region. Between 20 and 25 countries throughout the Middle East, Asia,
    Europe, and Latin America possess (or are seeking to obtain) ballistic
    missiles, and a small number of countries are pursuing acquisition of
    large inventories of missiles. During testimony before the Senate
    Committee on Governmental Affairs on February 24, 1993, then-Director
    of Central Intelligence, R. James Woolsey, stated:

              More than 25 countries, many of them hostile to the U.S. and
            to our friends and allies, may have or may be developing
            nuclear, biological, and chemical weapons--so-called weapons of
            mass destruction, and the means to deliver them. More than a
            dozen countries have operational ballistic missiles, and more
            have programs in place to develop them.

        That judgement was echoed in a March 1995 study released by the
    Nonproliferation Center of the Central Intelligence Agency:

              At least 20 countries--nearly half of them in the Middle East
            and South Asia--already have or may be developing weapons of
            mass destruction and ballistic missile delivery systems. Five
            countries--North Korea, Iran, Iraq, Libya, and Syria (see
            country profiles, Annex A)--pose the greatest threat because of
            the aggressive nature of their WMD programs. All five already
            have or are developing ballistic missiles.

        In addition, nine Third World countries also produce ballistic
    missiles--Argentina, Egypt, India, Iran, Iraq, Israel, North Korea,
    South Korea, and South Africa. Four others--Brazil, Libya, Pakistan,
    and Syria--are developing the means for production.
        The threat posed to the United States by ballistic missiles is
    rapidly growing due to nine global trends:

       The key elements of an indigenous ballistic missile program
            are not overly complex, are generally related to several types
            of common commercial ventures, and are increasingly available
            to third world nations;
       Extensive foreign assistance relating to ballistic missile
            design, development, and deployment is now available, and is
            accelerating missile programs;
       Serious leakage of components and critical technologies is
            occurring despite limitations imposed under the Missile
            Technology Control Regime (MTCR);
       The United States must be concerned that a country with an
            ICBM might sell a complete system, or complete stages of that
            system;
       Countries can rapidly reconfigure their space launch
            vehicles to serve as ICBMs; moreover space launch vehicle
            programs in general can enable countries to significantly
            accelerate ICBM development;
       A country need not engage in a lengthy flight test program
            prior to deployment of an ICBM;
       Development of short and medium-range missiles will enable
            countries to significantly accelerate ICBM development;
       Countries are today able to deploy a ship-launched, short or
            medium-range ballistic missile capable of threatening the
            United States; and
       The possibility of unauthorized or accidental launch from
            existing nuclear arsenals is serious, and could increase with
            instability in Russia.

        The principal cause for concern to the United States posed by
    missile proliferation is the high likelihood that these systems will be
    used to deliver weapons of mass destruction (WMD) against U.S. troops
    abroad, to attack key allies, and ultimately to threaten U.S. citizens
    at home. When mated with a nuclear, chemical, or biological warhead, a
    ballistic missile would enable a country to hold at risk populations
    and targets in neighboring states. Moreover, several countries of
    concern (e.g. North Korea, Iran, and China) are making rapid strides in
    enhancing the range, accuracy, and payload capabilities of their
    ballistic missiles, seemingly with the intent to hold U.S. cities at
    risk.
        Whereas little agreement previously existed on the extent to which
    the threat of attack by ballistic missiles posed a danger to the United
    States, consensus on this question has begun to emerge in the wake of
    the findings by the Rumsfeld Commission, and in the aftermath of the
    launch of a Taepo Dong 1 missile by North Korea.
        The Rumsfeld Commission, whose formal title was The Commission to
    Assess the Ballistic Missile Threat to the United States, was
    established by the National Defense Authorization Act for Fiscal Year
    1997 (P.L. 104-201). The Commission's mandate was to ``assess the
    nature and magnitude of the existing and emerging ballistic missile
    threat to the United States.''
        Members of the Commission were nominated by the Speaker of the
    House and the Majority Leader of the Senate and the Minority Leaders of
    the Senate and House of Representatives, and consisted of:

    The Honorable Donald H. Rumsfeld, Chairman of the Board of Directors of
            Gilead Sciences, Inc. and former Secretary of Defense;
    Dr. Barry M. Blechman, Chairman and Co-founder of the Henry L. Stimson
            Center and former Assistant Director of the Arms Control and
            Disarmament Agency;
    General Lee Butler, former Commander-in-Chief of the U.S. Strategic
            Command and Strategic Air Command;
    Dr. Richard L. Garwin, Senior Fellow for Science and Technology with
            the Council on Foreign Relations;
    Dr. William R. Graham, Chairman of the Board and President of National
            Security Research and former Director of the White House Office
            of Science and Technology Policy
    Dr. William Schneider, Jr., President of International Planning
            Services, Inc. and former Under Secretary of State for Security
            Assistance;
    General Larry Welch, President and CEO of the Institute for Defense
            Analyses and former Chief of Staff of the U.S. Air Force;
    Dr. Paul Wolfowitz, Dean of the Paul H. Nitze School at Johns Hopkins
            University and former Under Secretary of Defense for Policy;
    The Honorable R. James Woolsey, Partner in the law Firm of Shea and
            Gardner and former Director of Central Intelligence.

     unanimous conclusions of the rumsfeld commission regarding the threat
        The nine Commissioners are unanimous in concluding that:

       ``Concerted efforts by a number of overtly or potentially
            hostile nations to acquire ballistic missiles with biological
            or nuclear payloads pose a growing threat to the United States,
            its deployed forces and its friends and allies. These newer,
            developing threats in North Korea, Iran and Iraq are in
            addition to those still posed by the existing ballistic missile
            arsenals of Russia and China, nations with which we are not now
            in conflict but which remain in uncertain transitions. The
            newer ballistic missile-equipped nations' capabilities will not
            match those of U.S. systems for accuracy or reliability.
            However, they would be able to inflict major destruction on the
            U.S. within about five years of a decision to acquire such a
            capability (10 years in the case of Iraq). During several of
            those years, the U.S. might not be aware that such a decision
            had been made.'' [emphasis added]
       ``The threat to the U.S. posed by these emerging
            capabilities is broader, more mature and evolving more rapidly
            than has been reported in estimates and reports by the
            Intelligence Community.''
       ``The Intelligence Community's ability to provide timely and
            accurate estimates of ballistic missile threats to the U.S. is
            eroding. This erosion has roots both within and beyond the
            intelligence process itself. The Community's capabilities in
            this area need to be strengthened in terms of both resources
            and methodology.''
       ``The warning times the U.S. can expect of new, threatening
            ballistic missile deployments are being reduced. Under some
            plausible scenarios--including re-basing or transfer of
            operational missiles, sea-and air-launch options, shortened
            development programs that might include testing in a third
            country, or some combination of these--the U.S. might well have
            little or no warning before operational deployment.''
         key unanimous policy recommendation of the rumsfeld commission
       ``Therefore, we unanimously recommend that U.S. analyses,
            practices and policies that depend on expectations of extended
            warning of deployment be reviewed and, as appropriate, revised
            to reflect the reality of an environment in which there may be
            little or no warning.''
       trends contributing to the spread of ballistic missile capability

    Trend #1: The key elements of an indigenous ballistic missile program
            are not overly complex, generally related to several common
            types of commercial ventures, and are increasingly available to
            third world nations
        This is not a new trend. In 1981 a report prepared for the Arms
    Control and Disarmament Agency concluded:

              The development and production of solid-fueled ballistic
            missiles with ranges between 1000 and 2000 kilometers is
            technically within the capabilities of states with experience
            in the production of advanced weapons systems, and military
            aircraft in particular.\1\
    ---------------------------------------------------------------------------
        \1\ Balaschak, M. et al., Assessing the Comparability of Dual-Use
    Technologies for Ballistic Missile Development (Center for
    International Studies, Massachusetts Institute of Technology:
    Cambridge, MA, June 1981), p. iii.

        This finding was based on the judgment that the design and
    manufacture of a ballistic missile--whether relying primarily upon
    indigenous or imported components--requires technical capabilities and
    infrastructure which can be found in the manufacture of aircraft and
    other advanced systems. In particular, the study found that commercial,
    ``off-the-shelf'' inertial navigation systems could be adapted for use
    in ballistic missiles. ``Such items are usually available as spares or
    replacement parts for exported aircraft, both civilian and military.''
    \2\ Certainly the United States, Britain, France, China, and the Soviet
    Union all used adapted materials in developing their own missile
    programs.
    ---------------------------------------------------------------------------
        \2\ Ibid, p. 26.
    ---------------------------------------------------------------------------
        In 1993, the Congressional Office of Technology Assessment
    identified 12 developing countries--Egypt, Israel, Iraq, Iran, India,
    Pakistan, Taiwan, North Korea, South Korea, South Africa, Argentina,
    and Brazil--as having at least an ``incipient'' capability to produce
    ballistic missiles. This list remains today a fair representation of
    evolving ballistic missile production capability outside of Europe.
        Nearly all of the aforementioned countries--perhaps with the
    exception of Iraq--are being aided in their pursuit of the capability
    to indigenously develop and manufacture ballistic missiles by the
    global spread of precision machine tooling capabilities, aerospace
    ventures, and modern chemical and (in the case of biological warheads)
    pharmaceutical production facilities. Technological obstacles
    associated with two of the primary elements of a ballistic missile
    program (propulsion and guidance) have become increasingly easy to
    overcome due to this trend.\3\
    ---------------------------------------------------------------------------
        \3\ A flight-test capability also is important, though less so when
    a country seeks merely to utilize or adapt proven designs. Finally, if
    a country wishes to develop sophisticated warheads for its missile
    program, it must develop a capability to design, (or integrate, if the
    warhead is acquired from abroad) a re-entry vehicle onto the missile.
    These elements of a program have linkages to both commercial space
    launch ventures and to the nuclear, chemical, and/or pharmaceutical
    industries.
    ---------------------------------------------------------------------------
        The technological challenges surrounding the development of a
    propulsion system are formidable, but not insurmountable. For example,
    solid propellants suitable for medium- and even long-range systems are
    relatively easy to produce. Any country with a chemical production
    capacity suitable for manufacturing large-caliber artillery shells also
    is capable of mastering long range ballistic missile propulsion
    technology. Iran's experience with developing the Oghab artillery
    rocket is thought to have contributed substantially to the development
    of the Iran-130 short range missile. Brazil, too, is thought to have
    benefitted from this linkage.\4\ Even the more complex, composite
    solids--typically a combination of ammonium perchlorate and a resin--
    can be produced in several Third World countries. Iraq, for example,
    has been constructing three factories to produce solid-fuel rocket
    components, engines, and to provide test facilities (as part of Project
    395).\5\
    ---------------------------------------------------------------------------
        \4\ Carus, Seth, ``Long Range Artillery rockets in the Third
    World,'' Jane's Intelligence Review (Jane's Information Group: London,
    October 1991), p. 475.
        \5\ Nolan, Janne, Trappings of Power: Ballistic Missiles in the
    Third World (Brookings: Washington, 1991), p. 56.
    ---------------------------------------------------------------------------
        Likewise, domestic development of missile guidance technology is
    also increasingly feasible. Any country with electronics and precision
    tool manufacturing industries, along with engineering laboratories, is
    capable of developing an inertial navigation system (INS) for use in a
    ballistic missile program.
        Aside from INS, even simpler forms of guidance are commercially-
    available. Radio correction and strap-down systems, both of which use
    equipment present in common radars and high performance radios, have
    already been developed by a large number of countries--among them India
    and North Korea. Despite the fact that these systems may yield large
    inaccuracies at long ranges, nevertheless a number of countries have
    found these systems acceptable for their purposes. For instance, China
    relies exclusively upon strap-down guidance in its DF-4 ICBM. Radio
    correction was sufficient to give early U.S. and Soviet ICBMs CEP
    accuracies of 3 km or better over a 9000 km flight.\6\ Indeed, because
    of its low cost and ease of development, a number of countries may turn
    to radio corrected guidance. Additionally, radio correction saves
    weight in the missile in comparison with INS systems, allowing for
    increased payload or range.
    ---------------------------------------------------------------------------
        \6\ MacKenzie, D.A., Inventing Accuracy: A Historical Sociology of
    Nuclear Missile Guidance (MIT Press: Cambridge, Mass., 1990), pp. 310-
    313, 428-429.
    ---------------------------------------------------------------------------
        In short, due to the increasing availability of general production
    and manufacturing equipment and commercial off-the-shelf technology,
    countries with indigenous ballistic missile programs are finding it
    increasingly easy to overcome key technological hurdles.
    Trend #2: Extensive foreign assistance relating to ballistic missile
            design, development, and deployment is now available, and is
            accelerating missile programs
        Not only has the past decade seen extraordinary improvements in the
    indigenous production capabilities of various countries, but it also
    has witnessed a dramatic increase in the availability of outside help
    to countries seeking ballistic missiles. As the Rumsfeld Commission
    noted: ``Foreign assistance is not a wild card. It is a fact.''
        Previous analyses which overly-focused on indigenous production
    capabilities produced flawed conclusions due to their failure to factor
    in the availability of foreign assistance. As Former Director of
    Central Intelligence, James Woolsey stated during testimony to the
    Senate Foreign Relations Committee on September 24, 1996:

              . . . concentrating on indigenous ICBM development seems to
            me to limit very sharply any general conclusions that might
            legitimately be drawn.
              . . . Indigenous development of ICBM's was of interest during
            the Cold War because the Soviets sought to restrain their
            client states and maintain a monopoly. But countries such as
            Iraq are no longer client states of the Soviet Union, which
            does not exist anymore, and they are not even client states of
            Russia. They are doing what they please.
              And in the aftermath of the Cold War, Russia, China, and
            North Korea particularly are very much in the business of
            export for many ballistic missile components and for some
            technologies that relate to weapons of mass destruction.

        Foreign assistance is the norm in ballistic missile development--
    not the exception; this sort of help often is critical to enable
    countries to solve difficult developmental obstacles. Moreover,
    external assistance hinders and complicates the U.S. ability to predict
    how soon a system will be deployed. The Nonproliferation Center of the
    Central Intelligence Agency published an unclassified assessment in
    March 1995 that summed up trends in foreign assistance:

              The widening market for ballistic missiles and missile-
            related technologies over the past two decades has contributed
            to an increase in the types and number of suppliers. The
            growing list of suppliers includes organizations in China,
            North Korea, the industrialized states in Europe and South
            America, and in several Third World countries. Private
            consortiums are also among the suppliers of missile components
            and technologies. Iraq was able to establish its ballistic
            missile program through such suppliers.

        Historically, countries engaged in the development of ballistic
    missiles have proven more than willing to collaborate with one another
    on projects. Through Soviet assistance, at least ten countries in the
    Third World and four republics of the former Soviet Union field either
    Soviet-made missiles or some variant, the most common of which is the
    single-stage, liquid-fueled SCUD B. That missile has range of 300 km
    and is capable of carrying a 1,000 kilogram payload.
        Russia continues in the Soviet tradition of providing ballistic
    missile assistance to the developing world. Russia is one of the two
    principal suppliers of components and technological assistance to
    countries seeking to acquire ballistic missiles. According to a July
    1997 study by the Central Intelligence Agency, while China ranked as
    ``the most significant supplier of WMD-related goods and technology to
    foreign countries,'' Russia also supplied a variety of ballistic
    missile-related items to foreign countries during the same time frame,
    with the majority of the assistance going to Iran. Further, Russia also
    has served as an important source for Indian and Pakistani missile
    programs.
        In January 1997, the Congress became aware of the widespread
    assistance being given Iran's ballistic missile program by a large
    number of Russian entities. According to various press reports, at
    least ten Russian firms, including the state arms export agency
    Rosvooruzhenie and the Russian space agency, have aided Iran in
    overcoming a number of technical obstacles--in direct contravention of
    Russia's obligations under the Missile Technology Control Regime. The
    cooperation consists of key assistance on navigation, guidance systems,
    rocket motor work, and the transfer of equipment related to the Russian
    SS-4 liquid-fueled, intermediate range missile. Russia has provided
    wind-tunnel testing for missile nose cones, and assisted in the
    development of a solid fuel project. Finally, Russian firms also are
    reported to have concluded contracts for the construction of a wind
    tunnel, manufacture of mock-ups, and the creation of software for
    Iran's missile program. The result has been that the Iranian program is
    advancing far more quickly than previously expected. This assistance
    has enabled Iran to make strides that otherwise would have taken years
    of research, development, and testing.
        According to a September 10, 1997 story in The Washington Times,
    Russian assistance has been directed towards two systems--the Shabab-3
    and -4--both of which are based on North Korea's No Dong missile. The
    Shahab-3 will have a range of up to 930 miles and is expected to carry
    a 1,650 pound warhead. The Shahab-4 is to have a range of 1,240 miles
    and a warhead of 2,200 pounds. Two additional, unnamed systems with
    ranges of 5,500 km and 10,000 km respectively may also be under
    development in Iran.\7\ Until these revelations, Iran was thought to be
    years away from the development of a missile capable of striking Tel
    Aviv or Riyadh. Now, according to various press articles, the Shahab-3
    will be deployed within a year or two, and the Shahab-4 within three.
    ---------------------------------------------------------------------------
        \7\ Congressional Research Service, Russian Missile Technology and
    Nuclear Reactor Transfers to Iran, March 27, 1998, p. 4.
    ---------------------------------------------------------------------------
        Russia also reportedly has provided significant and varied
    assistance to Chinese missile programs. During testimony before the
    Senate Committee on Governmental Affairs on February 24, 1993, then-
    Director of Central Intelligence, R. James Woolsey, stated:

              . . . China continues to obtain missile technology from
            Russia and Ukraine, and China is actively pursuing agreements
            covering increasingly more sensitive areas. This raises concern
            not only because the transfers improve China's military
            capabilities, but also because it introduces the possibility
            that China could, in turn, pass more advanced Russian or
            Ukrainian-derived technology to other states, as Beijing has
            done previously with its own technology.

        China, in turn, also provides a wide variety of missile assistance
    to various countries, ranging from the transfer of complete systems to
    the sharing of technical data and blueprints. China has shown a
    willingness to transfer ballistic and cruise missiles, as well as
    related production technology, to the most troubled of regions (e.g.,
    the Indian subcontinent and the Persian Gulf). A case-in-point is
    China's provision of M-11 missiles and key components to Pakistan.
    Transfer of M-11's, for which Pakistan may have developed nuclear
    warheads, has contributed to heightened tensions in the region.\8\
    Similarly, Iran's development of medium range missiles using Chinese
    technology and its equipping of various patrol craft with the C-802
    anti-shipping cruise missiles (provided by Beijing) has been a source
    of concern for the United States Armed Forces and key Middle Eastern
    allies alike.
    ---------------------------------------------------------------------------
        \8\ The Washington Post, ``Pakistan May Have Nuclear Tips for
    Rockets,'' May 30, 1998, p. A1.
    ---------------------------------------------------------------------------
        On August 27, 1993, Admiral William Studeman, acting Director of
    Central Intelligence, wrote to Senator Glenn stating that:

              China is one of Iran's primary suppliers of defense
            technology. Missile-related technology cooperation, for
            example, has involved China's provision of technical and
            production expertise to Iran's indigenous missile development
            programs. . . . More recent press reports suggest that China
            may be cooperating with Iran to develop short-range ballistic
            missiles.

        Of course, the bulk of Chinese missile cooperation with Iran has
    consisted of transfers of componentry, rather than complete systems. On
    June 22, 1995, the New York Times quoted a May 1995 Central
    Intelligence Agency study as concluding that China had ``delivered
    dozens, perhaps hundreds, of missile guidance systems and computerized
    machine tools to Iran . . .'' Other sources said rocket propellent
    ingredients were provided as well. The CIA reportedly had determined
    that the components would give Iran's Scud-type missiles improved
    accuracy, and possibly the ability to build such missiles on its own.
    On November 21, 1996, the Washington Times quoted from an alleged
    October 1996 CIA report documenting China's sale to Iran's Defense
    Industries Organization of gyroscopes, accelerometers, and test
    equipment meant to test and upgrade various missile systems. In May of
    1997, China reportedly agreed to sell Iran X-ray equipment to study
    missile casings and to check for defects in solid-propellant, and a
    later press report added that China had supplied telemetry equipment
    which sends and collects missile guidance data during flight tests.\9\
    ---------------------------------------------------------------------------
        \9\ The Washington Times, ``Russia, China aid Iran's missile
    program; Prototype expected within three years of weapon that could hit
    Central Europe,'' September 10, 1997, p. A1.
    ---------------------------------------------------------------------------
        China's transfer of missile design, production, and testing
    technology is particularly worrisome. By contributing to the
    development of indigenous missile manufacturing capabilities, China has
    enabled several countries to circumvent the Missile Technology Control
    Regime (MTCR), the intent of which is to slow the spread of missile
    technology by restricting missile-related transfers to a small club of
    like-minded nations. It also, by transferring such technology, has
    greatly complicated the United States' ability to predict when
    countries will be able to field systems capable of striking the U.S.
    and its allies.
        The following represents a partial list of Chinese missile
    proliferation behavior, as reported in the press:

       China's Precision Machinery Import/Export Corporation is
            alleged to have sold M-11 missiles to Pakistan in 1995 and
            1996.\10\
    ---------------------------------------------------------------------------
        \10\ The Washington Times, ``U.S., China Clash Over Missile Deal,''
    October 4, 1994, p. A8.
    ---------------------------------------------------------------------------
       ``A complete factory for producing M-11 missiles or systems
            of similar ranges was sold to Pakistan in 1996.'' \11\
    ---------------------------------------------------------------------------
        \11\ The Washington Times, ``China to Halt Missile Sales to Iran,''
    January 20, 1998, p. A1.
    ---------------------------------------------------------------------------
       China's Poly Venture's Company is alleged to have shipped
            specialized metalworking presses and a special furnace to a
            Pakistani missile production facility.\12\
    ---------------------------------------------------------------------------
        \12\ The Washington Times, ``China Still Shipping Arms Despite
    Pledges,'' April 15, 1999, p. A1.
    ---------------------------------------------------------------------------
       Missile patrol boats equipped with scores of advanced C-802
            anti-ship cruise missiles were sold to Iran in 1996.'' \13\
    ---------------------------------------------------------------------------
        \13\ Ibid., p. A1.
    ---------------------------------------------------------------------------
       China's Great Wall Corporation is alleged to have sold
            ``telemetry infrastructure'' and equipment to Iran. \14\
    ---------------------------------------------------------------------------
        \14\ The Washington Times, ``Russia, China Aid Iran's Missile
    Program,'' September 10, 1997, p. A1. See also The Washington Times,
    ``U.S. Offers Deal to Stop China's Nuke Sales,'' October 14, 1997, p.
    A1.
    ---------------------------------------------------------------------------
       China's Precision Engineering Institute New Technology Corp.
            is alleged to have agreed to sell Iran's Defense Industries
            Organization gyroscopes, accelerometers and test equipment.\15\
    ---------------------------------------------------------------------------
        \15\ The Washington Times, ``China Joins Forces With Iran on Short-
    Range Missile,'' June 17, 1997, p. A3.
    ---------------------------------------------------------------------------
       China is alleged to have agreed to make three deliveries of
            specialty steel to Iran in 1999 and is alleged to have trained
            10 Iranian engineers on inertial guidance systems in China.\16\
    ---------------------------------------------------------------------------
        \16\ The Washington Times, ``China Still Shipping Arms Despite
    Pledges,'' April 15, 1999, p. A1.
    ---------------------------------------------------------------------------
       China is alleged to have shipped ``rocket motors and test
            equipment'' to Iran for a new short-range missile ``known as
            the NP-110.'' \17\
    ---------------------------------------------------------------------------
        \17\ The Washington Times, ``China to Halt Missile Sales to Iran,''
    January 20, 1998, p. A1.
    ---------------------------------------------------------------------------
       China's Precision Machinery Import/Export Corporation is
            alleged to have sold ``missile-related components'' to Syria's
            Scientific Studies and Research Center.\18\
    ---------------------------------------------------------------------------
        \18\ The Washington Times, ``State Looks at Chinese Missile-Part
    Exports,'' July 24, 1996, p. A4.
    ---------------------------------------------------------------------------
       China is alleged to have agreed to collaborate with North
            Korea on both selling to Iran titanium-stabilized duplex steel
            for its missiles, and on a variety of missile programs in North
            Korea--including the sale to the DPRK of ``special steel.''
            \19\
    ---------------------------------------------------------------------------
        \19\ The Washington Times, ``China Still Shipping Arms Despite
    Pledges,'' April 15, 1999, p. A1.

        In addition to Russia and China, North Korea is a major supplier of
    both missiles and missile production facilities. During testimony
    before the Senate Committee on Governmental Affairs on February 24,
    ---------------------------------------------------------------------------
    1993, then-Director of Central Intelligence, R. James Woolsey, stated:

              North Korea has sold Syria and Iran extended range Scud Cs
            and has apparently agreed to sell missiles to Libya. Russia and
            Ukraine are showing a growing willingness to sell missile
            technology prohibited by the Missile Technology Control Regime.
            Egypt and Israel are developing and producing missiles, and
            several Persian Gulf States have purchased whole systems as
            well as production technology from China and North Korea. Some
            have equipped these missiles with weapons of mass destruction,
            and others are striving to do so.
              . . . North Korea has sold extended range Scud missiles to--
            among others--Iran and Syria, and is developing and actively
            marketing a new, 1000 kilometer-range missile. North Korea
            apparently has no threshold governing its sales--it is willing
            to sell to any country with the cash to pay.

    Admiral Studeman added, in response to a question by Senator Lieberman:

              Iran, one of North Korea's best customers for ballistic
            missiles and related technology, is likely to be one of the
            first recipients of the 1,000 km No Dong (vice Dung Ho). By the
            end of this decade, Iran could be able to manufacture or
            assemble short-range (Scud B and C) and medium-range (No Dong)
            ballistic missiles.

        Several other countries also have transferred missiles or missile
    production technology in the past, including Argentina, Libya, Egypt,
    and various European countries. A French company, SAGEM, is believed to
    have developed the guidance systems for the Condor-2 program. A German
    firm has been alleged to have assisted Iraq in the development of a new
    guidance system for its enhanced Scud program. The German space agency,
    DFVLR, assisted Indian scientists with guidance system algorithms for
    the SLV-3, Agni and Prithvi.\20\ Likewise, India's indigenous
    development of rocket propulsion systems was apparently aided by French
    technology and technicians. \21\
    ---------------------------------------------------------------------------
        \20\ Karp, Aaron, Ballistic Missile Proliferation: The Politics and
    Technics (SIPRI: Oxford, 1996), p. 119.
        \21\ Balaschak, M. et al., Assessing the Comparability of Dual-Use
    Technologies for Ballistic Missile Development, p. 46.
    ---------------------------------------------------------------------------
        In short, nearly every Third World ballistic missile program has
    benefitted substantially from foreign assistance. In some cases, the
    assistance may have been unknowing, consisting of end-use diversion of
    dual-use items such as accelerometers. However, in most cases the
    assistance has been deliberate and has consisted not only of the
    transfer of sensitive componentry (such as German-built gyroscopes for
    Iraq's Project 1728), but of production capabilities. For these
    reasons, we assess that no country is significantly inhibited from
    acquiring key technologies. Those that have been stymied in their
    ability to obtain assistance from the West are now shopping in China,
    Russia, and North Korea.
    Trend #3: Serious leakage of components and critical technologies is
            occurring despite limitations imposed under the Missile
            Technology Control Regime (MTCR)
        An unclassified version of a 1993 CIA report stated: ``The MTCR has
    been moderately successful at slowing the transfer of missile-related
    technologies between member and nonmember countries.'' \22\ The authors
    of the CIA report were careful to make clear that the MTCR did not, of
    course, prevent transfers between nonmembers, such as China and Iran.
    Moreover, it must be clear that the intelligence community assessed
    that the MTCR has not prevented ballistic missile collaboration, but
    rather has ``slowed'' its pace.
    ---------------------------------------------------------------------------
        \22\ Attachment to letter from CIA Director of Congressional
    Affairs Stanley Moskowitz to Chairmen Dellums, Schroeder and Glickman,
    November 17, 1993.
    ---------------------------------------------------------------------------
        In 1993, then-Director of Central Intelligence, James Woolsey, put
    it another way:

              A short-cut approach that is prohibited by the Missile
            Technology Control Regime and by the Non-Proliferation Treaty
            would be for such Third World countries to buy ICBMs or major
            components covertly, together with suitable nuclear warheads or
            fissile materials. Anything such as that would, of course,
            speed up ICBM acquisition by such nations.
              . . . If through violations of the Missile Technology Control
            Regime and the Non-Proliferation Treaty countries other than
            Russia and China are able to acquire components and technology
            from other countries, that could make such things a concern
            sooner.

        An independent panel tasked with reviewing intelligence community
    assessments of the missile threat (chaired by former Director of
    Central Intelligence Robert Gates) warned against placing too much
    stock in the MTCR. In testimony before the Senate Intelligence
    Committee on December 4, 1996, Mr. Gates noted that: ``the panel
    believes the Estimate [NIE 95-19] places too much of a burden on the
    Missile Technology Control Regime as a means of limiting the flow of
    missile technology to rogue states.''
        This criticism would seem to be well-founded given that members of
    the MTCR continue to violate their commitments. For example, in a May
    10, 1996 response to questions asked by Senator Specter, the Central
    Intelligence Agency stated:

              Russian firms are marketing dual-use hardware and
            technology--including items covered by the guidelines of the
            Missile Technology Control Regime--at international aerospace
            exhibitions.

    Similarly, on May 6, 1996, Lt. General Patrick Hughes, Director of the
    Defense Intelligence Agency, wrote to Senator Specter stating that:

              Russia is known to be marketing worldwide dual-use technology
            which may enhance a purchasing country's ballistic missile
            program. Some of the dual-use technology is most likely covered
            by the Missile Technology Control Regime (MTCR) Annex. Another
            possible conduit for the transfer of ballistic missile-
            applicable technology is through aerospace-related joint
            ventures. Both Russia and Ukraine are pursuing such
            cooperation.

    He added that:

              Rampant corruption and decentralized control have also
            increased the potential for illegal arms exports since Soviet
            military trade was consolidated under the Foreign Economic
            Relations Ministry. In addition, many Russian scientists and
            engineers are known to be working in/for several non-FSU
            countries. These individuals were directly involved in
            defensive missile system research and development programs in
            the FSU and, more recently, in the successor states.

    The December 1995 interdiction by Jordanian officials of advanced
    Russian ballistic missile gyroscopes and accelerometers destined for an
    Iraqi missile plant serves as a case in point. Indeed, in testimony
    before the Senate Armed Services Committee on March 5, 1996, Secretary
    of Defense Perry admitted that time needed by various countries to
    deploy ballistic missiles ``could be foreshortened if any of those
    nations were able . . . to get direct assistance from countries that
    already have [such systems], either sending them missiles, selling them
    missiles, or giving them an important component or technology
    assistance.''
        The Pentagon's November, 1997, proliferation threat assessment
    clearly indicates that China, like Russia, continues to proliferate
    missile technology in spite of its MTCR commitments:

              Also, China has a bilateral agreement with the United States
            under which it has agreed to ban all exports of MTCR-class
            ground-to-ground missiles and to abide by the original 1987
            MTCR guidelines and parameters. Nonetheless, the United States
            remains concerned about continuing Chinese assistance to
            missile programs in some countries of proliferation concern.

        And of course, other countries which are not MTCR members continue
    to provide direct assistance to Third World missile programs. With
    respect to North Korea, the Pentagon's 1997 study determines:

              North Korea operates a complex, integrated network of trading
            companies, brokers, shippers, and banks that facilitate NBC
            weapon and ballistic missile-related trade. This trade involves
            complete systems, components, manufacturing equipment, and
            technology . . . North Korea is not a member of the MTCR and is
            not expected to join . . .
              Pyongyang's policy of supplying rogue states with ballistic
            missiles and related technology remains a factor in the
            advancement of several Middle Eastern production programs. As
            the North develops even longer range missiles and improves its
            chemical warfare capabilities, the potential exists for
            additional North Korea exports.

        As is clear from the earlier discussion of the scope of Chinese
    technical assistance to Iran and Pakistan, any assumption that the MTCR
    can be counted upon to prevent, or significantly limit, ballistic
    missile proliferation is flawed on its face. Serious circumvention of
    the MTCR is the norm, not the exception.
    Trend #4: The United States must be concerned that a country with an
            ICBM might sell a complete system, or complete stages of that
            system
        In 1993, then-National Intelligence Officer for Strategic Programs,
    Larry Gershwin, has stated: ``We also remain concerned that hostile
    nations will try to purchase from other states ballistic missiles
    capable of striking the United States.'' \23\
    ---------------------------------------------------------------------------
        \23\ Speech to the American Defense Preparedness Association, May
    18, 1993.
    ---------------------------------------------------------------------------
        Similarly, then-DCI Studeman stated in his 1993 responses to
    Congress:

              We also remain concerned that hostile nations will try to
            purchase from other states ballistic missiles capable of
            striking the United States. Libya, for example, has in the past
            publicly stated a desire for weapons of mass destruction that
            could be delivered by ballistic missile to the United States. A
            shortcut approach--prohibited by the Missile Technology Control
            Regime and Nuclear Nonproliferation Treaty--would be to buy
            ICBMs or major components covertly, together with suitable
            warheads or controlled materials. The acquisition of key
            production technologies would also greatly speed ICBM
            development.\24\
    ---------------------------------------------------------------------------
        \24\ Letter to Senator Glenn, August 27, 1993.

    ---------------------------------------------------------------------------
        Finally, the Gates Panel rightly pointed out that:

              ``The United States cannot rule out the possibility of a
            strategic change of direction or policy in Russia or China--or
            in other countries--over a fifteen year span of time that might
            lead to a sale of a long-range missile system to a Third World
            country.''

        The concerns expressed by these officials derive from the fact that
    countries already have aggressively marketed medium-range missiles and
    some may already have tried to sell ICBMs. China's sale of CSS-2's to
    Saudi Arabia has been well publicized. Less attention was given,
    however, to China's reported marketing in 1984 of the DF-5 ICBM (with a
    12,000 kilometer range) for use in the Brazilian and Argentinean
    ``space'' programs.\25\ While China was turned down for a lack of hard
    currency, Brazil does seem to have concluded an agreement with China to
    develop a four-stage, solid-propellant space launch vehicle that may be
    marketed for export as a ballistic missile.\26\ Numerous press reports
    also indicate that Russia has sought to market variants of nearly every
    one of its ICBMs for space launch purposes.\27\
    ---------------------------------------------------------------------------
        \25\ Burrows, William and Robert Windrem, Critical Mass (Simon &
    Schuster: New York, 1994), p. 396.
        \26\ Nolan, Janne, Trappings of Power: Ballistic Missiles in the
    Third World, p. 19.
        \27\ Anna Bakina, ``Strategic Missile Under Conversion Into Space
    Booster,'' ITAR-TASS, 17 July 1995; ``RSA To Turn Swords Into
    Plowshares,'' Kommersant Daily, 7 July 1995, p. 9; ``SS-19s To Be
    Converted Into Rokot Space Carrier Rockets,'' FBIS Report: Arms Control
    and Proliferation, FBIS-TAC-95-014-L, 4 August 1995, p. 97; Vitaly
    Chukseyev, ``Russia to Supply Boosters for U.S. Missiles,'' ITAR-TASS,
    13 October 1995.
    ---------------------------------------------------------------------------
        Under these circumstances, it would be imprudent to assume that
    countries hostile to the United States would be unable to acquire a
    complete missile system, particularly in the event of widespread
    economic and political turmoil in Russia. While the possibility of the
    transfer of a complete missile remains remote, it cannot be discounted.
    Trend #5: Countries can rapidly reconfigure their space launch vehicles
            to serve as ICBMs; moreover space launch vehicle programs in
            general can enable countries to significantly accelerate ICBM
            development
        Several countries, including Japan, Ukraine, Brazil, Israel, and
    India, possess space launch vehicles (SLVs) which could rapidly be
    reconfigured to serve as ICBMs. While it is difficult to gauge the
    likelihood of this happening, the United States must recognize that
    unforeseen political circumstances might prompt such a development.
    India, for example, may determine that ICBMs are necessary for any
    number of reasons--perhaps as a means of deterring third party
    intervention in any future Indo-Pakistani conflict. The circumstances
    under which Ukraine, Japan, or Taiwan might find an ICBM-capability
    advantageous also should be examined. At a minimum, an SLV program is
    an incipient ICBM program.
        With regard to India, Admiral Studeman noted on August 27, 1993,
    that:

              India could convert its space launch vehicles into IRBMs or
            ICBMs quite easily. India has already demonstrated the ability
            to build guidance sets and warheads, the two key ingredients
            needed to convert an SLV into a ballistic missile.
              . . . An ICBM based on the Polar Satellite Launch Vehicle
            (PSLV) would be technically feasible for the Indians. A warhead
            capable of handling ICBM reentry conditions and designed for
            the PSLV would need to be developed. A new IRBM or ICBM based
            on the propulsion and guidance technology employed by the PSLV
            would be possible.

    With respect to Brazil, then-DCI Studeman noted:

              Brasilia has stated repeatedly that the SLV program is
            devoted exclusively to peaceful purposes. Moreover, there is
            widespread public support for the program because it is viewed
            as making Brazil a competitor in the international space launch
            market. Nevertheless, Brazilian officials admit that if Brazil
            completed development of an SLV, it would have the capability
            to build ballistic missiles.

        India and Brazil are but two of a number of countries who either
    possess or are developing SLVs capable of being converted into ICBMs.
    The list grows if one considers those countries that have the
    technological ``know-how'' to develop an SLV.
        As General William Odom, former Director of the National Security
    Agency and chairman of the SDIO Proliferation Study Team put it in a
    February 1993 report:

              The conclusion that the probability is quite low for the
            emergence of new ballistic missile threats to the United States
            during this decade or early in the next decade can be sustained
            only if plausible but unpredictable developments, such as the
            transfer and conversion of SLVs, are dismissed or considered of
            negligible consequence.\28\
    ---------------------------------------------------------------------------
        \28\ The Emerging Ballistic Missile Threat to the United States,
    February 1993, p. 1.

        As far as the linkages between SLV and ICBM technologies, during
    testimony before the Senate Committee on Governmental Affairs on
    February 24, 1993, by then-Director of Central Intelligence, R. James
    ---------------------------------------------------------------------------
    Woolsey:

              The space launch vehicle technology is very similar to and is
            clearly applicable toward developing ballistic missiles. It was
            the reason why Sputnik led to concerns for the security of the
            United States back at the end of the 1950s. . . . it is
            unfortunately the case that the technologies for ICBMs and
            space launch vehicles are very close and in some cases
            virtually identical.

        According to the Arms Control and Disarmament Agency, ``the only
    major difference between the space and missile variants is that the
    final boost stage of the ICBM is terminated earlier, before the payload
    has achieved enough velocity to enter orbit, resulting in its return to
    earth.'' \29\ Indeed, of the eight essential components for an ICBM,
    all but one (the warhead) are used in modified form on a space launch
    vehicle.
    ---------------------------------------------------------------------------
        \29\ Arms Control and Disarmament Agency, World Military
    Expenditures and Arms Transfers, 1987 (ACDA: Washington, D.C., 1988),
    p. 26.
    ---------------------------------------------------------------------------
        Both the United States and the Soviet Union used ICBMs as boosters
    in their space programs. The Atlas, Titan, SS-5, and SS-6 rockets were
    all of military origin. Similarly, systems or stages of systems under
    development in India and Brazil can be used as ballistic missiles.
    Indeed, perhaps with the exception of Japan, no country has ever
    embarked upon an SLV program for purely nonmilitary reasons.
        On August 27, 1993, Admiral William Studeman, acting Director of
    Central Intelligence, wrote to Senator Glenn stating that:

              Applying space launch vehicle (SLV) components or technology
            to a ballistic missile program is a relatively straightforward
            task. SLV and ballistic missile technologies, components, and
            operations are very similar and often identical, thus no
            ``safeguards'' exist which could prevent conversion of SLV
            components or technologies for use in ballistic missiles.
              For example, India's first space launch vehicle, the SLV-3,
            was based on the U.S. Scout launch vehicle. Its first stage
            also serves as the first stage of the Agni medium-range
            ballistic missile. This interchangeability easily allows
            diversion of SLV technology into missile programs.
              Any country which receives technology to manufacture SLVs
            also receives the necessary technology to manufacture ballistic
            missiles. By providing SLV manufacturing technology, an
            inherent ballistic missile manufacturing capability is
            transferred as well. For countries with little indigenous
            missile technology, transfer of SLV production technology could
            reduce their missile development time frame by several years.

        A 1992 report by The System Planning Corporation found SLV
    conversion to be ``fairly straightforward.'' \30\ Another 1992 study by
    Science Applications International Corporation found that ``The
    increasing availability of space launch vehicles and space launch
    services could result in the ability of certain Third World countries
    to threaten the continental U.S. with ICBMs carrying nuclear, chemical,
    or biological payloads in the mid- to late-1990s.'' \31\
    ---------------------------------------------------------------------------
        \30\ Ballistic Missile Proliferation: An Emerging Threat, 1992, pp.
    26-28.
        \31\ Sidney Graybeal and Patricia McFate, ``GPALS and Foreign Space
    Launch Vehicle Capabilities,'' SAIC, February 1992, p. 18.
    ---------------------------------------------------------------------------
        First, it is analytical folly to overlook the fact that several
    countries today have the capacity to threaten the U.S. with an ICBM,
    though not necessarily the intent. Second, the increasing availability
    of dual-use technologies--particularly through SLV programs--will
    enhance the ability of countries to produce ballistic missiles, and may
    prompt other countries to pursue their own, indigenous development. The
    proliferation of sensitive technologies via space programs will enable
    more effective integration of ballistic missile components, will extend
    the range and payload capabilities of various missiles under
    development, and reduce the circular error probable (CEP), increasing
    accuracy.
        Even as all of this is occurring, the Intelligence Community is
    finding difficult the monitoring of SLV programs to ensure that they do
    not contribute to a ballistic missile program. Intent is hard to
    assess, and since there is no practical capability to distinguish
    between SLV and ICBM development, the U.S. may be denied timely warning
    of an emerging missile threat based on SLV technology. In some cases,
    the threat could emerge ``over night'' as a country simply transforms a
    commercial system to a military role.
    Trend #6: A country need not engage in a lengthy flight test program
            prior to deployment of an ICBM. This means reduced warning time
        Under the Clinton Administration the intelligence community assumed
    that a flight test program lasting about 5 years is essential to the
    development of an ICBM. \32\ Richard Cooper specifically noted that ``a
    flight test is a sure, detectable sign of a ballistic missile program.
    Normally the first flight test would provide at least five years
    warning before deployment.'' He added that ``Moreover, we would almost
    certainly obtain other earlier indicators of an ICBM program.'' \33\
    ---------------------------------------------------------------------------
        \32\ GAO/NSIAD-96-225, Foreign Missile Threats, p. 7.
        \33\ Cooper testimony, House National Security Committee, February
    28, 1996, p. 3.
    ---------------------------------------------------------------------------
        The high degree of certainty with which NIE 95-19 judges that
    indicators of an ICBM program would be detected prior to the missile's
    flight testing would seem questionable in light of the Intelligence
    Community's reported intelligence gaps with regard to both the Iraqi
    and North Korean missile programs.
        For example, according to one intelligence analyst, it was only
    after Iraq's test launch of a modified Scud B (the al-Hossein) on
    August 3, 1987, that the United States, ``suddenly realized we had a
    missile problem in Iraq.'' \34\ According to many, the al-Hossein test
    was the first indicator that Iraq had another ballistic missile program
    besides the Condor II project. While the Scud-upgrade program (Project
    1728), was the least technologically demanding of Iraq's missile
    programs, it ranged in scope from the cannibalization of existing
    Soviet Scuds to Iraqi manufacture of major components such as missile
    cases. Moreover, Project 1728 entailed a massive foreign acquisition
    program which obtained rocket nozzles, virtually a complete testing
    plant for missile propulsion systems, a liquid rocket fuel plant (which
    also could make UDMH), turbo pumps for missile fuel systems, and
    gyroscopes.\35\ It therefore clearly had observable features. Yet it
    went undetected (according to credible public accounts).
    ---------------------------------------------------------------------------
        \34\ Kenneth R. Timmerman, The Death Lobby: How the West Armed
    Iraq, (Boulder: Houghton Mifflin Co., 1991), p. 268.
        \35\ Ibid., p. 253-255. UDMH, unsymmetric dimethylhydrazine, is a
    rocket fuel additive which boosts propulsion. The ability to
    manufacture or obtain rocket fuel additives, particularly for solid
    fuels, may be important to the indigenous development of an ICBM
    propulsion system.
    ---------------------------------------------------------------------------
        On February 29, 1988--just seven months after its first and only
    flight test of the modified Scud B--Iraq began launching ballistic
    missiles at Iranian cities. Yet the U.S. Intelligence Community
    reportedly was at a loss to identify the type of missile being used by
    Iraq. According to Kenneth Timmerman, Iranian broadcast video of
    unexploded missile components had the Intelligence Community ``tied in
    knots.'' \36\ Although the componentry was positively identified as
    belonging to Soviet-built Scud Bs, the distance to the target in Iran
    was well beyond the range of even the Scud C (which Iraq had not
    received). It was only after the Iran-Iraq war that it became clear
    that Iraq had cut up and rewelded Scud B fuel tanks to create longer
    fuel tanks that could hold five, rather than four, tons of fuel.\37\
    Iraq had additionally reduced the size of the missile warhead and had
    moved air tanks from the missile's tail to the nose.\38\
    ---------------------------------------------------------------------------
        \36\ Ibid., p. 288.
        \37\ Ibid.
        \38\ Seth Carus and Joseph Bermudez, ``Iraq's al-Hossein Missile
    Program,'' Jane's Soviet Intelligence Review, May 1990.
    ---------------------------------------------------------------------------
        The U.S. experience with monitoring the Iraqi missile program would
    seem, at a minimum, to call into question the bold assertion that the
    U.S. would ``almost certainly'' detect a ballistic missile program
    prior to a flight test. It would also seem to indicate that a country
    might, under certain conditions, find a way to ``cut corners'' in the
    ballistic missile development process.
        The U.S. experience with North Korea's Taepo Dong 1 missile is no
    less telling. On August 31, 1998, North Korea stunned the United States
    by firing a Taepo Dong 1 which had a third stage. ``The existence of
    the third stage concerned us,'' according to Bob Walpole, the National
    Intelligence officer for Strategic and Nuclear Programs.\39\ ``First,
    we had not included it in our earlier projections; neither had outside
    experts looking at our intelligence. Second, it and potentially larger
    third stages have significant implications for the Taepo Dong-2.'' \40\
    ---------------------------------------------------------------------------
        \39\ ``North Korea's Taepo Dong Launch and Some Implications on the
    Ballistic Missile Threat to the United States,'' Robert Walpole, 8
    December 1998, p. 2.
        \40\ Ibid.
    ---------------------------------------------------------------------------
        The launch of the Taepo Dong 1 by North Korea demonstrated
    significant and unexpected progress in stage separation technology.
    With only one flight test, North Korea proved that it possessed the
    ability--in the words of NIO Walpole--``to deliver small payloads to
    ICBM ranges . . .'' \41\ In other words, North Korea has developed an
    ICBM capable of attacking the United States with a small biological or
    chemical payload. It did so--not with a five year flight program--but
    with only one flight test. As the North Korean example proves, in the
    absence of concrete indicators regarding a Third World country's ICBM
    program, a flight test may be the first and only indication we may have
    of an emerging ICBM threat.
    ---------------------------------------------------------------------------
        \41\ Ibid.
    ---------------------------------------------------------------------------
        Any assumption that the U.S. will have advance warning of an ICBM
    deployment since any ICBM flight test program would last at least five
    years reflects a serious analytical shortcoming: the ``mirror imaging''
    of Western ICBM developmental programs.
        Historically, the United States has engaged in six different types
    of tests: (1) technology/componentry tests; (2) research and
    development tests; (3) initial operational tests; (4) demonstration and
    shakedown tests; (5) follow-on tests; and (6) aging and surveillance
    tests.\42\ The first three types are those tests normally conducted
    prior to deployment of a fully operational U.S. ICBM.
    ---------------------------------------------------------------------------
        \42\ Wilkes, Owen et al., Chasing Gravity's Rainbow: Kwajalein and
    US Ballistic Missile Testing (Strategic and Defence Studies Centre, The
    Australian National University: Canberra, 1991), pp. 75-80.
    ---------------------------------------------------------------------------
        Depending upon circumstances, it may be technically feasible for a
    country to significantly shorten the time spent on various test stages.
    For instance, the purpose of technology and componentry testing is to
    validate the effectiveness of advanced components or sub-assemblies
    that incorporate unproven, high-risk technology. If a Third World
    country acquires components that have already been validated in other
    ballistic missile programs--such as with Iran's reported acquisition of
    SS-4 liquid-fuel technology--the need for this type of test would be
    diminished, or perhaps even eliminated altogether. In fact, a Third
    World country which has acquired only a handful of inertial navigation
    systems or gyroscopes may be loathe to sacrifice any of its scarce
    resources in such a test.
        Research and developmental tests are conducted to validate
    successive stages in an ICBM design process. If, however, a country
    were to rely upon proven designs, fewer such tests would be necessary.
    The French missile program demonstrates how an incremental development
    process which recycles proven technology may reduce the number of
    developmental tests required. Relying upon components and sub-systems
    proven in other systems, France was able to deploy the 2,750 kilometer
    range S-2 missile in six years with only 12 test launches.\43\
    ---------------------------------------------------------------------------
        \43\ Villain, J., La Force de Dissuassion: Genese et Evolution
    (Editions Lariviere: Paris, 1987), p. 61.
    ---------------------------------------------------------------------------
        North Korea seems to be following this pattern of development using
    recycled technology. According to an April 1996 report by the Office of
    the Secretary of Defense, the Taepo Dong 2 missile is thought to be a
    new combination of existing missile components--presumably derived from
    the Nodong program. The same is believed to be true for the Taepo Dong
    1 system. If the Taepo Dong 1 and 2 are indeed but extensions of the
    Nodong program, this would explain why their rapid development may have
    taken the Intelligence Community by surprise.\44\ The Taepo Dong
    series' linkages to the Nodong program explains why North Korea did not
    feel compelled to flight test the Taepo Dong 1 until last summer, since
    the basic concept was validated in the May 1993 Nodong flight test.
    Moreover, given the relative success of the Taepo Dong 1's flight test,
    North Korea may not feel compelled to flight test the follow-on system
    at all prior to use. At a minimum, North Korea may conduct only a
    handful of operational flight tests. Under such circumstances, the
    Taepo Dong 2 could easily be deployed without 5 years of rigorous
    testing. Further, operational similarities between the Taepo Dong 2 and
    its Nodong progenitor might foreshorten training requirements for
    missile crews.
    ---------------------------------------------------------------------------
        \44\ Barbara Starr, Jane's Defense Weekly, 25 June 1994, p. 10.
    ---------------------------------------------------------------------------
        There is an additional concern here as well. In June, 1994, The
    Washington Times reported that the United States has confirmed that
    Iranian officials have been present at a number of missile tests in
    North Korea, which were described as ``sales demonstrations.'' We may,
    therefore, presume that Iran also has validated the Nodong's design,
    having witnessed successful tests.\45\ Accordingly, if the Shahab-3 and
    Shahab-4 are simply further improvements of the Nodong system, Iran
    also may engage in fewer flight tests of its intermediate systems.\46\
    ---------------------------------------------------------------------------
        \45\ This raises an interesting point. Press articles from 1994
    reported that North Korea may test the Nodong missile in Iran because
    ``[testing facilities] don't exist for a full-range test in North
    Korea.'' Obviously, were this to occur, it would shorten Iran's own
    missile testing timetable. It also raises the troubling prospect that
    the Intelligence Community might be uncertain, in the future, as to how
    many countries are deriving technical benefit from a ballistic missile
    test.
        \46\ Certainly there is ample evidence to suggest that Iran's
    medium-range systems utilize Nodong technology. Iranian interest in the
    Nodong missile has been widely publicized. In his 1994 posture
    statement, Director of Naval Intelligence Admiral Edward Shaefer's
    reportedly stated that ``Iranian acquisition of the No-dong system from
    North Korea is possible in the future.'' (Arms Control Today, July
    1994, p. 23; see also, Barbara Starr, Jane's Defence Weekly, August 6,
    1994, pp. 4-6.)
          Assistant Secretary of State Robert Pelletreau testified on June
    14, 1994, that ``We're concerned about press reports and other
    intelligence that they might, at some point, sell the No-Dong missile--
    with a much longer range than the Scud-B and -C.'' (The Washington
    Times, June 16, 1994, p. A 13; see also, James Bruce, Jane's Defence
    Weekly, July 30, 1994, pp. 23-33.)
    ---------------------------------------------------------------------------
        If Iran is using Nodong technology for its medium-range program,
    then it may use it for its longer-range, follow-on missiles. Were Iran
    to stack two Nodong stages together, flight testing of the basic
    conceptual design may be viewed as unnecessary. (We will assess the
    feasibility of ``stacking'' stages later in the assessment.)
        Finally, as the United States found in testing the MX ICBM,
    successful developmental tests also could foreshorten the test series.
    The U.S. conducted its first operational trial test of the MX less than
    four years after it had initiated the flight test program (June 1983-
    March 1987).\47\ Moreover, a significant number of the tests from
    October 1984 to August 1986 were devoted to integration of the MX's re-
    entry vehicle. (These types of tests may not be germane to a Third
    World ICBM program, particularly if a biological warhead is to be
    employed). Operational testing of the MX missile was concluded in March
    1990. In other words, the United States moved from testing componentry
    to certifying operational capability of its most sophisticated ICBM--it
    had a longer range and higher CEP than earlier systems--in roughly
    seven years.
    ---------------------------------------------------------------------------
        \47\ Wilkes, Owen et al., Chasing Gravity's Rainbow: Kwajalein and
    US Ballistic Missile Testing, p. 81.
    ---------------------------------------------------------------------------
        In judging that any flight test program would last at least five
    years, the intelligence community previously seemed to assume that a
    would-be ICBM developer in the Third World will have nearly the same
    demanding requirements for payload, range, and accuracy as did the
    United States at the height of the Cold War. Instead, it now seems more
    likely that Third World countries will pursue intercontinental-range
    missiles for their deterrent value--as a means to threaten counter-
    value targets, such as cities. Under such circumstances, a far less
    rigorous test program would be required. A CEP of 800 meters matters
    little if the target is New York City or Honolulu. Further, given the
    high cost of flight testing, the temptation to make do with fewer tests
    may also foreshorten the timetable. Finally, if the country has been
    able to develop a nuclear, chemical, or biological warhead for the
    missile, the need to test for accuracy is further reduced.
        The basic rule of thumb for the U.S. missile program, stipulated by
    the Joint Chiefs of Staff, was that the number of missiles tested must
    be sufficient to provide the U.S. with a 90 percent confidence that the
    ICBM's reliability is not less than ten points below the success rate
    of the series.\48\ This is a very rigorous standard. The United States
    should contemplate the possibility that a Third World test program
    might not be designed to prove with such a high degree of confidence
    that every deployed system will work. Rather, testing may be designed
    to confirm the mechanical integrity of a system--to prove that it can
    work. One cannot dismiss the political pressures and other
    imponderables which might prompt a country to deploy a missile with
    little or no testing, or to foreshorten legs of the testing program.
    ---------------------------------------------------------------------------
        \48\ Ibid., p. 77.
    ---------------------------------------------------------------------------
        On this point, while the Gates Panel agreed with NIE 95-19 that a
    country developing an ICBM would almost certainly test it, it
    nevertheless concluded that ``most important among the deficiencies of
    NIE 95-19'' was the Estimate's ``failure to adequately address the
    motives and objectives of the governments developing missile programs,
    and how they affect technology needs.'' According to the panel:

              With the ballistic missile programs we are seeing now,
            however, motive matters a great deal, and can significantly
            affect technology. What is required technically for a crude
            terror weapon is very different than what is required for a
            weapon that is militarily useful.

        History is replete with examples of how motives and objectives--as
    opposed to technical interests--dictated developmental and testing
    timetables. For example, the pressures of the Sino-Soviet conflict
    prompted China's decision to deploy the DF-5 for operational training
    only two months after its first two full-range test flights into the
    Pacific.\49\
    ---------------------------------------------------------------------------
        \49\ Lewis, John Wilson, and Hua Di, ``China's Ballistic Missile
    Programs,'' International Security (Fall 1992), p. 18.
    ---------------------------------------------------------------------------
        Most significantly, in the midst of the Cold War race to send a man
    to the moon, the United States developed the Saturn-S rocket with no
    flight testing at all. The rocket flew successfully for first time on
    November 8, 1967 as part of the Apollo-4 mission.\50\
    ---------------------------------------------------------------------------
        \50\ Bilstein, R.E., Stages to Saturn: A Technological History of
    the Apollo Saturn Launch Vehicles (NASA: Washington, D.C., 1980), pp.
    349-351.
    ---------------------------------------------------------------------------
        In July 1993, the CIA explicitly recognized the likelihood--not
    possibility--that a country might foreshorten an ICBM testing
    timetable:

              Because of the limited capabilities and likely motivations
            for attacking CONUS with ICBMs--such as international coercion,
            deterring US attacks, and regional influence building--it is
            highly likely that any country making the decision would pursue
            a high-risk development program with no (or limited) testing in
            order to shorten schedules and reduce the visibility of the
            program.\51\
    ---------------------------------------------------------------------------
        \51\ Attachment to Moskowitz letter to Dellums et al., November 17,
    1993.

    This assessment underscores the fact that the United States cannot rely
    upon observation of flight tests for warning that an ICBM threat is
    emerging.
    Trend #7: Development of short and medium-range missiles will enable
            countries to significantly accelerate ICBM development
        There are numerous linkages between short- and medium-range missile
    development and ICBM development. Shifting from a short or medium range
    missile to a long range ICBM is a viable technological option. Such a
    shift can be accomplished via two alternatives that are widely
    discussed in the literature on missile proliferation: vertical stacking
    and horizontal clustering of shorter or medium-range missiles.
        Several assessments have taken seriously the potential for
    horizontal clustering of medium-range missile components. A 1993 CIA
    report found that ``clustering lower performance engines is an option
    available for increasing the missile's range or payload capacity.''
    \52\ Similarly, a 1992 report by the Space Systems Division of Rockwell
    International determined that 13 SCUD missiles could be clustered
    together--nine in the first stage, three in the second, and one in the
    third--to produce an ICBM with a range of 7000 kilometers. \53\ Indeed,
    the report goes on to examine other potential combinations of available
    rocket boosters and finds that clustering could result in an ICBM with
    a range of 14,000 km or more.
    ---------------------------------------------------------------------------
        \52\ Attachment to Moskowitz letter to Dellums et al., November 17,
    1993.
        \53\ Howe, J.R., Emerging Long-Range Threat to CONUS (Rockwell
    International, Space Systems Division: Washington, D.C., Dec. 1992).
    ---------------------------------------------------------------------------
        The United States can ill-afford to dismiss horizontal clustering
    as a technical option given the history of both U.S. and Soviet long-
    range rocket designs. In the 1950s both countries progressed rapidly
    from single-stage, intermediate range missiles (such as the SS-4, SS-5,
    Jupiter, and Thor missiles) to the development of ICBMs (SS-6 and
    Atlas) which were essentially single-stage rockets surrounded by strap-
    on engines. NASA, for example, engineered the Saturn-1 and Saturn-1B
    space launch vehicles out of eight Redstone boosters. Subsequently the
    Saturn-S also made use of clustering.\54\ As has already been noted,
    the Saturn-S was launched ``full up'' and successfully without any
    prior flight testing.
    ---------------------------------------------------------------------------
        \54\ Bilstein, R.E., Stages to Saturn: A Technological History of
    the Apollo/Saturn Launch Vehicles (National Aeronautics and Space
    Administration: Washington, DC, 1980) pp. 176-83, 323-45.
    ---------------------------------------------------------------------------
        Significantly, Libya, Iraq, and North Korea all have experimented
    with the concept. Iraq, for example, designed the ``al Abed,'' which
    integrated seven boosters (at least six of which were Scuds). Although
    there has been speculation that the second and third stages were
    dummies, U.S. officials nevertheless took the technological
    implications of the clustering design seriously. It was calculated at
    the time that the al Abed could ultimately be configured to deliver
    payloads over an intercontinental distance.\55\ Half a year later,
    then-Secretary of Defense Cheney stated: ``The booster looked as if it
    were made up of five short-range rockets. Together the rockets could
    give the booster a range of 1000 kilometers.'' \56\
    ---------------------------------------------------------------------------
        \55\ ``U.S. Confirms Iraq has Launched Rocket That Can Carry
    Satellites,'' The New York Times, 8 December 1989.
        \56\ U.S. Department of Defense Press Release, No. 294-90, 11 June
    1990, p. 5.
    ---------------------------------------------------------------------------
        The other technical option that would enable a country to develop
    an ICBM using shorter range missiles would be to ``stack'' the
    boosters. A 1981 study for the Arms Control and Disarmament Agency
    examines the feasibility of this approach at length. That report
    concludes that long-range ballistic missiles could be created by
    combining two or three single-stage boosters into a single, multiple-
    stage rocket. The report concluded that ``a two-stage system is
    relatively easy to construct from the available components . . .'' \57\
    In fact, the report concludes that virtually all solid propellant
    rockets can be adapted to two-stage ballistic missile system.
    ---------------------------------------------------------------------------
        \57\ Balaschak, M. et al., Assessing the Comparability of Dual-Use
    Technologies for Ballistic Missile Development, pp. 45-49.
    ---------------------------------------------------------------------------
        The 1981 ACDA-commissioned report also concludes that, ``while
    technically difficult, it may be possible to stack three identical
    stages together to increase the range of these rockets.'' \58\ This is
    the approach taken by Brazil in its Sonda series of sounding rockets,
    which according to the Defense Intelligence Agency has evolved from a
    single-stage to the four stage Sonda-IV.\59\
    ---------------------------------------------------------------------------
        \58\ Ibid., p. 54.
        \59\ Pumphrey, Joe D., Status of Third World Ballistic Missile
    Technology (Defense Intelligence Agency: Washington, 1986), p. 2.
    ---------------------------------------------------------------------------
        The study provides a number of examples, including a hypothetical
    missile comprised of two commercially-marketed French Mammoth boosters
    (which use rocket engines similar to those licensed by the French
    government for manufacture in both India and Pakistan) which could
    deliver a 250 kg payload to a distance of over 1,200 kilometers.
    Similarly, by stacking two commercial Ariane strap-on boosters, a
    country could develop a missile with a range of nearly 3,000
    kilometers.\60\ As a practical matter, India's two-stage Agni system
    (with an intended range of over 2,000 km) is a two stage missile which
    reportedly combines India's solid-fueled SLV-3 booster with a liquid-
    fueled second stage apparently adapted from the Prithvi.\61\ It also
    has been speculated that Iraq's 2000 km-range Tammuz prototype was
    comprised of an al-Hossein booster and modified SA-2 surface to air
    missile.\62\
    ---------------------------------------------------------------------------
        \60\ Ibid., pp. 53-61.
        \61\ Nolan, Janne, Trappings of Power: Ballistic Missiles in the
    Third World, p. 45.
        \62\ Navias, Martin, Going Ballistic: The Build-up of Missiles in
    the Middle East (Brassey's: London, 1993), pp. 106-107.
    ---------------------------------------------------------------------------
        Further, press accounts indicate that North Korea's Taepo Dong 2
    may be a two-stage missile incorporating the Taepo Dong 1 stacked on a
    16.2 meter booster.\63\ Certainly, the stacking of the third stage on
    the Taepo Dong 1 provided an increased range to that system, and also
    has caused the intelligence community to rethink its assumptions about
    the range and payload capacity of the Taepo Dong 2.
    ---------------------------------------------------------------------------
        \63\ ``U.S. Reportedly Within New North Missile Range,'' FBIS-EAS-
    95-175 (September 11, 1995), p. 3.
    ---------------------------------------------------------------------------
    Trend #8: Countries are today able to deploy a ship-launched, short or
            medium-range ballistic missile capable of threatening the
            United States
        According to the Gates Panel:

              The Panel also believes that the possibility of a sea-based
            ballistic missile of less than intercontinental range warrants
            more attention than given in the Estimate [NIE 95-19]. The
            Estimate's assessment of the ballistic missile threat to North
            America concentrates almost exclusively on ballistic missiles
            with intercontinental range. Consideration of scenarios
            involving crude sea-launched ballistic missiles (e.g., Scud-
            derived missiles launched from mobile launchers driven aboard
            transport ships) is limited. Since developing missiles with
            sufficient range was identified as one of the most difficult
            technical obstacles which would have to be overcome before
            North America would face an ICBM threat, the lack of serious
            attention to possible SLBM threats is all the more noteworthy.

        The idea of launching short-range, ballistic missiles from sea is
    not new. For example, the Soviet Union deployed, beginning in 1958, the
    R-11FM and R-13 ballistic missiles on its submarines. The two types of
    short-range ballistic missiles (both were launched from the vessel's
    sail) had a range of 150 km and 600 km respectively.\64\
    ---------------------------------------------------------------------------
        \64\ Boris Rodionov, ``First Ballistic Missiles for the Submarine
    Fleet,'' Military Parade (January/February, 1996), pp. 58-61.
    ---------------------------------------------------------------------------
        Obviously, future programs may not be as complex as the Soviet
    submarine system. A country just as easily could roll a mobile
    transporter/erector/launcher (TEL) onto a barge or merchant ship, or
    could outfit a vessel's cargo hold with a launch system. In and of
    itself, this would pose minor technical challenges to most Third World
    countries. One of the most critical obstacles to be overcome would be
    hardening the platform against humidity and vibration.
        A country might find it more difficult were it to pursue
    integration of the missile's guidance system with some form of inertial
    guidance on the ship (in order to correct for the unsteady sea state).
    Left uncorrected, even minimal rolling or pitching by the naval vessel
    could produce large missile inaccuracies down-range. Of course, for a
    country intending to deliver a Scud missile tipped with a biological or
    chemical warhead against a U.S. city, no guidance system correction is
    necessary. Even ``getting close'' would suffice to cause immense
    devastation.
        In short, the requisite technology to threaten the U.S. with short-
    range ballistic missile attack from the sea already exists and is
    readily adaptable.
    Trend #9: The possibility of unauthorized or accidental launch from
            existing nuclear arsenals is increasing
        On February 28, 1996, the Chairman of the National Intelligence
    Council, Richard Cooper, testified before the House National Security
    Committee that:

              In our recent NIE, the Intelligence Community reaffirmed
            earlier assessments that the current threat to North America
            from unauthorized or accidental launch of Russian or Chinese
            strategic missiles remains remote and has not changed
            significantly from that of the past decade.

    Such an assumption is at odds with the Intelligence Community's
    concerns over the potential for turbulence in the former Soviet Union.
    A classified CIA report issued in September 1996, entitled ``Prospects
    for Unsanctioned Use of Russian Nuclear Weapons,'' seems to have been
    excerpted in published media accounts. \65\ Reportedly, it concluded
    that:
    ---------------------------------------------------------------------------
        \65\ ``Russian Renegades Pose Nuke Danger: CIA Says Arsenal Lacks
    Tight Controls,'' The Washington Times, October 22, 1996, p. A1.

              The Russian nuclear command and control system is being
            subjected to stresses it was not designed to withstand as a
            result of wrenching social change, economic hardship, and
            malaise within the armed forces . . .
              . . . despite official assurances, high-level Moscow
            officials are concerned about the security of their nuclear
            inventory.

    In evaluating several worst-case scenarios, the CIA report also
    reportedly concluded that ``a severe political crisis, however, could
    exacerbate existing dissension and factionalization in the military,
    possibly heightening tensions between Russian political and military
    leaders and even splitting the general staff or nuclear commands.'' Yet
    another troubling finding of the report is that the command posts of
    the Russian Strategic Rocket Forces ``have the technical capability to
    launch without authorization of political leaders or the general
    staff.'' Given time, the report states, ``all technical [security]
    measures can be circumvented--probably within weeks or days depending
    upon the weapon involved.'' Moreover, the political leadership probably
    could not ``prevent the general staff (or perhaps some other national
    level command post) from launching on its own.'' Additionally, the
    report warns that nuclear armed units may be conspiring to commit
    nuclear blackmail and that some submarine crews ``probably have an
    autonomous launch capability and might have the ability to employ SLAMS
    as well.''
        There are at least two additional incidents which heighten concern
    about the danger of accidental or unauthorized launch from Russia.
    During the August 1991 coup attempt in Moscow, a secret order from
    Russian Defense Minister Yazov led to unauthorized alert status for
    Russian armed forces, including strategic nuclear forces. \66\ While
    the August 1991 coup attempt was an incident of previously-unforseen
    political turmoil in Russia, it is clear that Russia's political future
    could see similar events in the future. The second troubling event was
    the January 1995 Russian nuclear alert in overreaction to the launch of
    a Norwegian meteorological rocket. \67\ This event reportedly led to
    the Russian strategic nuclear force control terminals--the nuclear
    ``footballs''--being switched to alert mode for several minutes.\68\
    ---------------------------------------------------------------------------
        \66\ See ``Yazov Mobilization Order,'' FBIS-SOV-91-166 (August 27,
    1991), p. 59 and ``Deputy Procurator General Interviewed on Putsch,''
    FBIS-SOV-92-021 (January 31, 1992), pp. 37-41.
        \67\ See ``Norwegian Science Rocket Puts Russian Defense on
    Alert,'' The Washington Times (January 29, 1995), p. A16; ``Russian
    Radars Alert Moscow After Detecting Missile Launch,'' Agence France
    Presse (January 25, 1996); and ``Yeltsin Leaves Chechnya Behind in
    Lipetsk, But Takes the `Black Attache Case' With Him,'' Izvestiya
    (January 27, 1995) p. 1.
        \68\ See also the article by Nikolay Devyanin, designer of the
    Russian nuclear force control terminals: ``All That Has Happened, Alas,
    Had to Happen,'' Moskovskiye Novosti, January 29-February 5, 1995, pp.
    1, 12.
    ---------------------------------------------------------------------------
        While the possibility of a large-scale nuclear exchange between
    Russia and the United States may be at an all-time low, the risk of
    mishap--accidental or otherwise--has not decreased proportionately to
    reductions in the Russian nuclear arsenal. In fact, media accounts
    which have not been challenged for accuracy raise the troubling
    possibility that Russian control of strategic nuclear forces is not as
    secure as it was during the Cold War. The possibility of accidental or
    unauthorized launch may be ``low,'' but--like the possibility of a
    nuclear exchange during the Cold War--it is clearly a possibility with
    severe consequences.
        In the words of the Gates Panel:

              With major forces of change still at play in Russia, the
            Panel believes the Estimate's discussion of unauthorized launch
            is superficial and may be overly sanguine. All agree that a
            launch unauthorized by the Russian political leadership is a
            remote possibility. But it would appear to be technically
            possible.
                                     ______

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                          May 12, 1999.

                                   MEMORANDUM

    To: Republican Members, Committee on Foreign Relations
    Through: James W. Nance
    From: Marshall Billingslea, Sherry Grandjean, and Andrew Anderson
    Subject: Hearing on the ABM Treaty and the Need For Ballistic Missile
                Defenses

        The Committee will hold a hearing on the ballistic missile threat
    to the United States and the need for a national missile defense on
    Thursday, May 13, at 10:00 AM in SD-562. The witnesses will be the
    Honorable Stephen Hadley, former Assistant Secretary of Defense under
    President Bush; (2) the Honorable Robert G. Joseph, former Ambassador
    to the ABM Treaty's Standing Consultative Commission; and (3) the
    Honorable David Smith, former Chief U.S. Negotiator to the Defense and
    Space Talks. Senator Hagel will preside.

        Attachment.

                Ballistic Missile Defense: Technological Issues

    Basic Architecture Planned for a National Missile Defense
        The Ballistic Missile Defense Organization (BMDO) of the Department
    of Defense has developed a national missile defense (NMD) program which
    will, if ever deployed, establish a ground-based missile defense
    designed to protect the United States against limited ballistic missile
    threats. The NMD plan is intended to be layered, over time, to achieve
    three successive levels of capability (called ``C1'', ``C2'', and
    ``C3'').
        The first, most basic missile defense, C1, is meant to provide a
    very ``thin'' protection against a few, technologically-simple incoming
    warheads. As such, it is oriented against the North Korean threat. As
    will be discussed, C1 would not be effective against the Chinese
    arsenal of two dozen warheads, and certainly would not be capable of
    stopping an attack by Russia. It will not be suitable for dealing with
    the emerging Iranian ICBM threat due to the planned location of the
    single interceptor site in Alaska. It also will be incapable of
    defending against short-range ship-launched ICBMs. However, the current
    intention is to deploy C2, and C1 is an intermediate step along the
    way.
        The second- and third-generation of defenses, C2 and C3, are meant
    to provide capability against a few incoming, sophisticated warheads,
    and defense against a larger number of sophisticated warheads,
    respectively.
                elements of the national missile defense system
        There are six major technological components to the
    Administration's planned NMD system:

     Ground Based Interceptor (GBI) (``Missiles'')

        The GBI and its associated components are the ``weapon'' of the NMD
    system. Its mission is to strike and destroy by force of impact high
    speed ballistic missile warheads in the midcourse or exo-atmospheric
    phase of their trajectories. The GBI consists of three components:

            --The missile payload, or exo-atmospheric kill vehicle (EKV).
            The EKV has its own sensors, propulsion, communications,
            guidance, and computing functions which will work together to
            complete the intercept.

            --A booster that will propel the EKV toward the approximate
            intercept location so the EKV can perform the final maneuvers
            to impact and destroy the incoming warhead.

            --Ground command and launch equipment needed to launch the
            interceptor. This includes software and hardware to interface
            with the BM/C3 system, human-in-control interfaces (consoles),
            and interceptor storage sites (silos) for daily maintenance and
            readiness functions and to launch the interceptor.

        As of March, 1999, the administration plans for 20 interceptor
    missiles in central Alaska, if a decision to deploy C1 is taken. This
    is being done because technical assessments indicate that national
    coverage cannot be accomplished from North Dakota alone. For C2, the
    plan calls for 80 more weapons in Alaska. C3 adds a further 25
    interceptors to the Alaskan site, bringing the total to 125, and calls
    for a second missile defense site of 125 interceptors at Grand Forks,
    North Dakota.

     Forward Deployed and/or U.S.-based X-Band Radars (XBR)

        The XBRs are forward deployed, ground-based, taskable, multi-
    function radars. In the NMD role, they perform acquisition, tracking,
    discrimination, and kill assessment of incoming warheads. XBRs use high
    frequency and advanced radar signal processing technology to improve
    target resolution, which permits the radar to perform more effectively
    against closely-spaced warheads and debris.
        For C1, the initial XBR capability would consist of the single
    radar at Shemya, Alaska. C2 would add three more X-Band Radars at
    Clear, Alaska; Thule, Greenland; and Fylingdales, England. These radars
    sites already exist, possessing early warning, surveillance
    capabilities. C3 would add a further XBR in South Korea.

     Upgraded Early Warning Radars (UEWR)

        U.S. early warning radars are large, fixed, phased-array
    surveillance radars used to detect and track ballistic missiles
    directed into the United States. Upgrades to the existing network will
    provide the capability to support the NMD surveillance function. Prior
    to deployment of the SBIRS (Low) satellites, the UEWRs will be used to
    detect and track objects during their midcourse phase, primarily to cue
    the more precise X-Band Radars. There are cases, however, where the XBR
    will not possess sufficient range to conduct intercepts; in those cases
    the UEWR will provide the only tracking data. However, this would not
    be compliant with the ABM Treaty.
        C1 will utilize a network of five existing radars. C2 would not add
    any additional UEWR, but C3 would add a radar in South Korea.

     Battle Management/Command, Control, and Communication (BM/C3)

        BM/C3 is the ``brains'' of the NMD system. In the event of a launch
    against the United States, the Commander-in-Chief of North American
    Aerospace Defense Command (NORAD) will control and operate the NMD
    system through the BM/C3. The BM/C3 element supports the Commander-in-
    Chief with extensive decision support systems, battle management
    displays, and situation awareness information. In this way, it supplies
    the means to plan, select, and adjust missions and courses of action;
    and it disseminates defense engagement authorization (DEA) and other
    Command decisions to the NMD system elements. The In-Flight Interceptor
    Communications System (IFICS) is the BM/C3 communications link to the
    interceptors during flyout.
        Cheyenne Mountain, Colorado, mistakenly believed by many Americans
    to house already a robust national missile defense, will be the BM/C3
    site for the planned NMD system.

     Space Based Infrared System (SBIRS)

        SBIRS is an additional element that future NMD systems will
    utilize. SBIRS (High) is being developed by the Air Force as part of
    the Early Warning System upgrade which will replace the Defense Support
    Program (DSP) satellites. SBIRS (Low) is being developed primarily to
    support both national- and theater-missile defense systems. In its NMD
    mission, SBIRS (High) will detect missiles in their boost phase and the
    SBIRS (Low) constellation of sensor satellites will acquire and track
    ballistic missiles throughout their trajectory. This information will
    provide the earliest possible trajectory estimate to the BM/C3 element.
    By providing this ``over-the-horizon'' precision tracking data to the
    NMD system, the effective NMD battle space is expanded to permit
    interceptors to be launched before the threats come within range of the
    XBRs or UEWRs. Indeed, with SBIRS (Low), no ground-based radars are
    needed, though this, too, would be an ABM Treaty issue. SBIRS (Low) not
    only will extend the defensive ``footprint'' of the NMD several fold,
    but will be able to supplant the ground-based radars. This is critical
    for effective National Missile Defense.
        C1 will draw upon SBIRS (High) satellites. C2 will add SBIRS (Low).
    C3 will utilize the existing C2 architecture.

     In-Flight Interceptor Communications System (IFICS)

        IFICS is the communication link which will pass target data from
    the NMD sensors to the interceptor missile. C1 will utilize
    communications nodes in central Alaska, Caribou, Maine, and Shemya,
    Alaska. C2 will add a further IFICS site in Munising, Michigan. C3 adds
    a fifth site in Hawaii.

        All elements of the NMD system will work together to respond to a
    ballistic missile directed against the United States. The U.S. Early
    Warning System, consisting of Defense Support Program (DSP) satellites,
    and its follow-on capability the Space Based Infrared System (SBIRS)
    satellites, will detect the launch of enemy missiles and will
    subsequently track these missiles and reentry vehicles (RV). After
    confirmation, this information will be sent to the Battle Management/
    Command, Control, and Communications (BM/C3) system. Subsequently,
    ground-based radars, Upgraded Early Warning Radars (UEWR) and X-Band
    Radars (XBR), will acquire and track the enemy missile and will compute
    an intercept point. After receiving defense engagement authority, BM/C3
    will order the launch of one or more Ground-Based Interceptors (GBI) to
    the intercept point. Nearing this point, the interceptor will use on-
    board sensors to acquire the threat, select the target warhead, and
    guide itself to a direct, high-speed collision. During and after the
    engagement, radars will continue to collect data, observe impact
    results to provide ``kill assessment'' information to evaluate the
    interceptor's success or failure.
        technological issues associated with a national missile defense
        (This section draws heavily upon an April 1997, publication by the
    Institute for Foreign Policy Analysis, Exploring U.S. Missile Defense
    Requirements in 2010: What Are the Policy and Technology Challenges?)
    Countermeasures
        A number of countries--chief among them Russia, China, and India--
    have anticipated the eventual development of strategic ballistic
    missile defenses. These countries are working to ensure that they will
    be able to penetrate future defenses. The following types of actions
    could serve as means of degrading the effectiveness of missile
    defenses:

       Stealth: Nearly every nation is exploring the use of radar-
            absorbing or radar-reflectant paints and materials, as well as
            non-reflecting angular designs, to reduce the observability of
            their missiles and re-entry vehicles (RVs).
       Decoys: Russia and the United Kingdom are two nations that
            already have developed decoys which resemble RVs and which are
            intended to provide defenses with more targets to intercept.
            Decoys also might be used for radar jamming.
       Coning/Corkscrewing: By introducing a ``wobble'' into an RV
            as it re-enters the atmosphere, a nation can create a 10-15 G
            spiraling turn (e.g. a corkscrew of 30-40 meters in diameter).
            Interceptors would need on-board computational capability and/
            or larger warheads to intercept this maneuver.
       MIRVs and Submunitions: Multiple warheads/submunitions are
            intended to overwhelm defenses. (NOTE: The ABM Treaty precludes
            placing multiple intercept capabilities on a single
            ``defensive'' missile, making MIRVs attractive as an option). A
            variation on this theme would be salvo launches designed to
            saturate missile defenses.
       Reduction in Infrared Signature: Several techniques could be
            used to reduce heat signatures of missiles. For example, a
            country could double-shroud an RV. This would allow it to shed
            heat by jettisoning the outer shroud after the boost-phase.
            Another technique would be the use of infrared-altering paints
            on the warhead skin. These techniques are designed to make it
            more difficult for an infrared seeker on a missile to find its
            target.
       Radar Jamming: Both RVs and decoys can be equipped with
            small microwave antennas to receive, amplify, and rebroadcast
            radar signals (thereby masking the position of the warhead).
            Simple clouds of metallic chaff or balloons also can be used to
            scatter radar signals, although they would be stripped away
            from the heavier RV upon re-entry.
       Salvage Fusing or Deliberate EMP Attack: Advanced warhead
            designs may include backup fuses which detonate the warhead if
            the RV is struck by an interceptor. This will create thermal
            and radiation effects (including an electro-magnetic pulse)
            which will destroy or degrade non-hardened electronic circuits
            and hardware. Moreover, this will result in increased ``noise''
            from persistent radiation which will reduce the effectiveness
            of surviving space-sensor systems. The same effect can be
            achieved by the deliberate detonation of a warhead in the
            exoatmosphere.
       Simple Masking: The infrared signature of an RV can be hard
            to distinguish when in proximity to the larger, hotter missile
            body. This becomes even more difficult when missiles ``tumble''
            or break apart upon re-entry.

    While all of these countermeasures are feasible they should not deter
    the United States from deploying defenses. Rather, they make clear that
    offensive and defensive capabilities are, and will continue to be, in a
    cycle of competition. Any defensive system deployed by the United
    States should be quickly upgradable, at reasonable cost, to take
    advantage of new technologies to counter an adversary's counter-
    measures. Given the nature of emerging counter-measure technologies,
    the United States also should pursue a layered defense with a variety
    of defensive attack methods to counter incoming RVs. However, this,
    too, would be prohibited by the ABM Treaty.
    Basic Constraints on the Feasibility of Countermeasures
        Three basic environmental factors will assist the U.S. national
    missile defense in dealing with countermeasures.

       Throwweight: Ballistic missiles can only carry so much.
            Countermeasures, together with the re-entry vehicles and
            guidance system, must fit within the throwweight limits of the
            given ballistic missile.
       Exoatmospheric Flight: All ICBMs must pass through the
            vacuum of the exoatmosphere. During this phase of flight,
            maneuverability is severely limited and requires enormous
            amounts of fuel since maneuvering thrusters will have no air
            against which to push. As a result, maneuver efforts will be
            limited to turns of only 2-3 Gs (as opposed to 10-15 Gs in the
            lower atmosphere).
       Endoatmposheric Flight: All but the most sophisticated of
            penetration aids will be stripped away from the RV, generally
            between 90-100 kilometers of altitude. Further, re-entering
            objects are subjected to extreme heating, making their infrared
            signatures much harder to conceal. Likewise, some penetration
            aids, such as radar jammers, will suffer a decease in
            transmitting capability during re-entry. Finally, the drag
            induced on re-entry vehicles will slow the RV, allowing for
            more intercept possibilities. Basic RVs have a low ``beta''
            rating, meaning that their initial re-entry speed of 6-7 km/s
            will slow rapidly at 25-55 kilometers altitude, resulting in an
            impact velocity of less than 1 km/s. (However, as RVs become
            more sophisticated, impact speeds may be greater (perhaps 3.4-4
            km/s) and deceleration may not occur until 12 kilometers in
            altitude.)
    Counter-Countermeasures
        Just as various countries are exploring countermeasures, the United
    States has identified numerous techniques to counter such systems.

       Laser Radars: Laser radars will enable defenses to see past
            debris and clutter induced by penetration aids. Such systems,
            when given the ability to measure angle, range, and range rate,
            will be able to track maneuvering, coning, and tumbling RVs.
            Laser radars cannot conduct wide area searches, however, and
            will be vulnerable to some kinds of countermeasures such as
            smoke and EMP detonations.
       Multicolored Infrared Sensors: Two-color infrared seekers
            will enable interceptors and satellites to track targets
            regardless of whether the background is the earth (``hot'') or
            space (``cold''). As infrared capabilities continue to evolve,
            even further target tracking and discrimination advances will
            be made. The Atmospheric Interceptor Technology Program (AIT)
            will utilize a two-color infrared seeker.
       Optical Signal Processing: Radar jamming is only possible as
            long as radars use linear frequency modulation. The generation
            of arbitrary/random wave forms of radar systems will be nearly
            impossible to jam or spoof.
       Spectral Band Processing: The splitting of spectral bands
            can provide the ability for remote identification of objects.
            Many experts are optimistic that band slices, when combined
            with powerful processing techniques, will enable future defense
            systems to develop a composite real-time ``picture'' of
            penetration aids, RVs, and decoys, and also will enable the
            United States to neutralize stealth advancements.
       On-Board Sensing and Processing: Currently, cost
            considerations limit the incorporation of on-board sensors and
            processors, driving defense planners to rely upon communication
            links to external sensors to guide the interceptor. As
            miniaturization of these electronic components becomes
            feasible, and more affordable, interceptors can increasingly be
            made ``smart'' in their own right. For example, the
            miniaturization of both laser and infrared radars, and their
            emplacement in the seeker of an interceptor, will greatly
            increase the discrimination and hit capabilities of the
            defensive missile. The Discrimination Interceptor Technology
            Program (DITP) is an example of a U.S. program seeking to
            capitalize upon this technology.
       Improved Sensor Integration: Advances in the ability to
            merge and process information from a variety of sources
            (microwave radar, laser radar, and both wide- and narrow-area
            infrared search senors) will enable the United States to
            discriminate better between penaids and RVs and to identify
            stealthy targets. In short, stealth is more easily achieved in
            one dimension; the concealment of an RV across all frequencies,
            however, is far more difficult. The Advanced Sensor Technology
            Program (ASTP) is an example of this type of endeavor.
       Multiple Kinetic Kill Munitions: Just as offensive missiles
            can be equipped with numerous RVs and decoys, so too can
            defensive interceptors (if it were not for the ABM Treaty's
            prohibition). One example of a multiple kinetic kill munition
            is the Swarm program, which involves autonomously-guided
            munitions (using a single photo detector and processor chip)
            that maneuver through the use of small explosive charges on the
            outer ring of the munition. This program can be used for both
            endo- and exoatmospheric intercepts.
       Directed Energy Weapons: As both microwave and laser
            technologies continue to advance, the prospect grows for use of
            lasers and microwave systems to kill both re-entry vehicles, as
            well as missiles at all stages of flight. The advantages over
            kinetic ``hit-to-kill'' interceptors are readily apparent.
            Several programs are under development in this area.

    As can be seen, while numerous countries will pursue a variety of
    countermeasures, the technology associated with counter-countermeasures
    is evolving rapidly as well. This has prompted senior U.S. defense
    planners to assert that the U.S. NMD system will able to defeat such
    penetration aids.
    Basic ABM Treaty Technical Limits on Ballistic Missile Defenses
        The most serious threat to the effectiveness of a U.S. national
    ballistic missile defense is not enemy countermeasures. It is the
    Administration's continued adherence to the ABM Treaty and the
    resultant limitations imposed on the planned C1, C2, and C3
    architectures. Aside from the basic prohibitions against having an NMD
    that are contained in Article I and Article III of the treaty, the
    treaty also contains a number of specific technological limitations:

       Limits on Sites and Number of Interceptors: The ABM Treaty
            would limit the United States to no more than 100 interceptors
            at only one site. This makes defense of the territory of the
            United States (also prohibited as a concept by Article I of the
            treaty) impossible. Even C1 violates this provision.
       Limit on Interceptor Capability: The ABM Treaty precludes
            interceptors from carrying more than a single warhead/kill
            vehicle. This makes missile defense less cost-effective. While
            the EKV being tested for the missile defense only carries a
            single warhead, one of the reasons that multiple kill vehicles
            have not been utilized is due to the ABM Treaty. A number of
            promising programs suggest that C2, and certainly C3, could
            capitalize upon multiple intercept vehicles on a single
            missile. The ABM Treaty, however, would preclude this.
       Limits on Radars: In essence, any ABM radar handling an
            intercept must be within 150 kilometers of the single allowed
            site. With an expected range of no more 4,000 kilometers, the
            radar will be unable to provide intercept coverage for vast
            portions of the United States, regardless of where the site
            (and thus the radar) ultimately is deployed. While early-
            warning radars can be deployed along the periphery of the U.S.,
            only the single XBR may handle intercepts (according to the
            treaty). C1 will not be compliant in this respect. Neither C2
            nor C3 will be, either.
       Technical Limits on External Cuing: Use of space, air, or
            land-based external sensors to provide early tracking
            information would make it possible to launch interceptors
            without the associated, local radar ever tracking the target.
            This, in turn, would substantially enhance a system's coverage
            potential against longer-range missile threats. However, the
            ABM Treaty prohibits the conduct of an intercept using only
            data from sensors other than co-located radars (e.g. conduct of
            an intercept without the XBR). If this continues to be the
            case, the defensive system under consideration by the U.S.: (1)
            will have a much smaller defensive ``footprint'' than it could;
            (2) fewer intercept opportunities for the system; and (3)
            greater vulnerability to penetration aids, particularly in the
            exoatmosphere where space-based terminal cuing could be used.

        The current defense plan for ``C1'' relies upon five UEWR's to
    alert the U.S. Space Command of an incoming missile threat. It also
    relies upon one X-band microwave radar system to detect the RV,
    identify it as such, and to discriminate between the RV and other
    objects such as counter-measures. While the NMD system will be able to
    track up to 1000 objects at a time, the reliance upon the one XBR will
    make the system vulnerable to a variety of masking counter-measures. As
    a result, the ``C1'' architecture will not be as effective against
    technologically-sophisticated adversaries, such as Russia.
        Once SBIRS (High) is included in the ``C1'' architecture and SBIRS
    (Low) in the ``C2'' architecture, a number of space-based infrared
    sensors will be available to assist the XBR in identifying RVs and
    tracking them. This will add a basic infrared detection capability to
    the XBR's microwave radar, making several types of countermeasures less
    effective in hiding RVs. Once satellites are placed in both high and
    low orbits, the resolution of the infrared imagery will be greatly
    improved. Moreover, a number of counter-stealth technologies (e.g.,
    laser radars and multi-colored infrared sensors) can only be
    capitalized upon via the use of space-based platforms. However, due to
    budget constraints, it does not appear that SBIRS (High) will be
    available until 2006 or later.
        Both SBIRS systems will provide sufficiently accurate tracking data
    to allow the conduct of an intercept without the XBR being in the loop.
    The current DSP constellation cannot do this. However, none of the
    Administration's plans--``C1'', ``C2'', or ``C3''--calls for the use of
    SBIRS in this fashion. This is due to ABM Treaty compliance
    considerations.
                                     ______

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                          May 24, 1999.

                                   MEMORANDUM

    To: Republican Members, Committee on Foreign Relations
    Through: Steve Biegun
    From: Marshall Billingslea and Sherry Grandjean
    Subject: The Legal Status of the ABM Treaty

        The Committee will hold a hearing on the legal status of the ABM
    Treaty on Tuesday, May 25, at 2:15 PM in SD-562. The witnesses will be
    Mr. Douglas J. Feith, former Deputy Assistant Secretary of Defense for
    Negotiations Policy; to be accompanied by Mr. George Miron of Feith and
    Zell, P.C., Mr. David B. Rivkin, Jr.; to be accompanied by Mr. Lee A.
    Casey of Hunton and Williams, and Dr. Michael Glennon, Professor of Law
    at The University of California, Davis. Senator Ashcroft will preside.

        Attachment.

    Background
        i. the senate's role in determination of the abm treaty's status
        The legal status of the 1972 Anti-Ballistic Missile Treaty is
    unresolved today. Indeed, the treaty remains in legal ``limbo'' until
    Senate advice and consent is obtained by the executive branch to a
    document establishing new treaty partners. While the President asserted
    on numerous occasions the right to determine the status of the treaty
    without the Senate's approval, he nevertheless agreed on May 14, 1997
    to submit to the Senate for advice and consent ``any international
    agreement that would add one or more countries as States Parties to the
    ABM Treaty, or otherwise convert the ABM Treaty from a bilateral treaty
    to a multilateral treaty; or that would change the geographic scope or
    coverage of the ABM Treaty, or otherwise modify the meaning of the term
    `national territory' as used in Article VI and Article IX of the ABM
    Treaty.''
        This commitment was made by the President in the form of a legally-
    binding certification. The President's pledge in this form was required
    pursuant to Condition (9) of the resolution of ratification to the CFE
    Flank Agreement. In making this commitment, the President agreed that
    the legal status of the ABM Treaty, including resolution of the
    question of treaty-successorship, could only be determined with the
    Senate's advice and consent.
    ii. inconsistencies in the president's view of the current legal status
                               of the abm treaty
        Condition (9) is worded broadly, and captures any conceivable
    international agreement to determine membership in the ABM Treaty. It
    is not possible to establish any party or group of parties to the ABM
    Treaty without triggering the provisions of Condition (9), and thus
    triggering the requirement for submittal of the agreement in question
    to the Senate. It is impossible for the United States to possess
    legally-binding treaty obligations under the ABM Treaty unless it has a
    partner to whom it is obligated. Because the ABM Treaty cannot be said
    to be in legal force until the United States has determined its treaty
    partner(s), the requirement under Condition (9) holds the ABM Treaty in
    abeyance until advice and consent is obtained.
        However, the Clinton Administration has provided numerous and
    conflicting arguments regarding the treaty's legal status. On May 21,
    1998, and again on December 17, 1998, the President wrote to the
    Chairman of the Foreign Relations Committee asserting that, despite
    Condition (9), Russia is today a Party to the ABM Treaty.
        This argument is politically-motivated. The Administration has
    become increasingly nervous that Senate defeat of any specific
    succession document (or Senate refusal to consider such a document) on
    the grounds that it would reconstitute the ABM Treaty might signify
    formal termination of the treaty. Certainly the Senate possesses the
    Constitutional authority to reject treaties and could attach in its
    rejection message to the President a formal directive giving notice of
    the ABM Treaty's termination. Alternatively, the Senate could simply
    indicate the intent to reject any succession arrangement to the ABM
    Treaty, regardless of its composition of states, thereby indicating the
    intent to hold the treaty in abeyance indefinitely.
        By arguing that Russia is today an ABM Treaty partner, the
    President is seeking to avoid such an impasse. His argument is designed
    to allow the Administration to continue viewing the ABM Treaty as in
    force, and to justify continuing U.S. treatment of Russia as a treaty
    partner. It is an assertion, however, flatly inconsistent with
    historical fact, the Administration's past representations regarding
    the successorship issue, and the Memorandum of Understanding (MOU) on
    succession itself.
        What is most troubling, however, is that the President's claim that
    Russia is a Party seems designed to circumvent his pledge to the
    Senate, made in a treaty-related certification on May 14, 1997, that
    the advice and consent of the Senate would be obtained for any
    agreement adding parties to the ABM Treaty, or changing its geographic
    scope.
        If the Administration persists in the assertions made in the letter
    of May 21, 1998, the validity of the ratification of the Document
    Agreed Among the States Parties to the Treaty on Conventional Armed
    Forces in Europe of November 19, 1990, also known as the CFE Flank
    Agreement, may be called into question. Certainly the assertion that
    Russia is a Party directly contravenes the certification of May 14,
    1997, raising the possibility that the instrument of ratification for
    the CFE Flank Agreement deposited on behalf of the United States is
    defective under U.S. constitutional law.
        In a November 21, 1997, letter to Representative Gilman, and in
    accompanying briefings by Administration lawyers, the Clinton
    Administration stated that ABM Treaty succession arrangements were
    ``unsettled'' and would remain so in the absence of a new agreement.
    Moreover, this letter takes note of no distinction between the legal
    status of Russia and that of the other states proposed as ABM Treaty
    parties. Indeed, the President stated in that letter:

              Neither a simple recognition of Russia as the sole ABM
            successor (which would have ignored several former Soviet
            states with significant ABM interests) nor a simple recognition
            of all NIS states as full ABM successors would have preserved
            fully the original purpose and substance of the Treaty, as
            approved by the Senate in 1972.

        However, in the May 21, 1998, letter, and again on December 17,
    1998, the President reversed course by asserting that ``the United
    States and Russia clearly are parties to the Treaty.'' Russia's desire
    to become a party, its participation in the treaty's activities, and
    the presence of ``ABM-Treaty related facilities''--a newly-invented
    term found nowhere in the ABM Treaty--on its territory are cited as
    reasons for this conclusion. The President also declined to identify
    Belarus, Kazakhstan and Ukraine as parties, although he asserted that
    ``a strong case can be made that even without the MOU, these three
    states are Parties to the Treaty,'' citing substantially the same
    factors that supposedly make Russia a party.
        There is no basis for any distinction between the legal status of
    Russia and that of the other states. In a briefing to congressional
    staff on January 30, 1998, Administration lawyers were asked directly
    whether Russia was the only other clear party to the Treaty. They
    stated definitively that this was not the case. Numerous Administration
    representations and public statements, including the State Department's
    publication of ``Treaties in Force,'' have been consistent in making no
    legal distinction among the former Soviet states who are potential
    successors to the ABM Treaty. Article VIII of the MOU itself notes that
    regulations of the Standing Consultative Commission ``shall reflect the
    equal legal status of the Parties.'' Further, the record of negotiation
    on the succession issue is replete with expressions by the United
    States of the view that the potential successors to the Soviet Union
    all have the same legal status. In short, the assertions made in the
    May 21, 1998, letter have no basis in historical fact.
        Moreover, the May 21, 1998, assertion that ``a strong case could be
    made'' that four countries could today be parties to the treaty is
    directly contradicted by Article I of the MOU, which states that the
    United States, Belarus, Kazakhstan, Ukraine, and Russia ``upon entry
    into force of this Memorandum, shall constitute the Parties to the
    Treaty.'' Very clearly, the entry-into-force of the MOU is the
    triggering event--and one that has not yet occurred--by which these
    states may become parties to the ABM Treaty. In short, none of the
    potential successors were identified as parties to the ABM Treaty
    during the period of negotiation, nor at any time preceding the
    President's certification pursuant to Condition (9). Nothing has
    transpired since that time that would constitute formal recognition of
    any state as a party to the ABM Treaty. Certainly no document has been
    submitted pursuant to Condition (9), and no document has received
    Senate approval.
        How the President asserts, then, that Russia is a Party to the ABM
    Treaty, and that the three other states might be, is a mystery. These
    claims imply that the issue of the ABM treaty's status is fundamentally
    settled. Yet the matter cannot truly be settled unless and until the
    Senate approves the MOU, or a similar agreement, through the exercise
    of the advice and consent powers assigned to it by the Constitution.
        iii. the legal status of the abm treaty: is the treaty extinct?
        The Committee will hear testimony from authors of two legal studies
    on the legal status of the ABM Treaty. The first memorandum was done by
    George Miron and Douglas J. Feith of Feith & Zell, P.C. The second
    memorandum was prepared for The Heritage Foundation by David B. Rivkin,
    Jr. and Lee A. Casey of Hunton and Williams.
        The Miron/Feith Memo draws the simple conclusion that when a State
    ceases to exist (becomes ``extinct''), that State's treaties lapse
    automatically by operation of law and do not require action by any
    other treaty party.
        The Rivkin/Casey Memo takes the position that the ABM Treaty could
    have survived the Soviet Union's dissolution only if one or more states
    survived that both continued the Soviet Union's sovereignty, its
    international legal personality, and were capable of fulfilling the
    terms and conditions of the original treaty ``unimpaired.'' No such
    state survived the Soviet Union.
        It is important to note that both studies draw the conclusion that
    the President cannot bring a new treaty into force between the United
    States and a successor to the extinct State without Senate advice and
    consent.
        A more detailed summary of each legal memorandum follows.

    1. Did the ABM Treaty of 1972 remain in force after the USSR ceased to
            exist in December 1991 and did it become a treaty between the
            United States and the Russian Federation? by George Miron and
            Doug Feith
        Following the USSR's extinction, the Anti-Ballistic Missile Treaty
    of 1972 did not become a treaty between the United States and the
    Russian Federation. Rather the treaty lapsed when the USSR ceased to
    exist.
        In December 1991, new States that emerged on what had been USSR
    territory declared independence, announced the formation of the
    ``Commonwealth of Independent States'' and proclaimed that the USSR
    ``as a subject of international law and a geopolitical reality no
    longer exists.'' Soon thereafter, the United States acknowledged that
    the USSR ``is no more.''
        The United States has officially expressed its view that upon the
    extinction of a State, its bilateral political treaties automatically
    lapse, and has acted in accordance with that view in connection with
    the extinction of the Kingdom of Hawaii in 1898, the dissolution of the
    Austro-Hungarian Empire at the end of World War I, and the dissolution
    of Yugoslavia in 1992. The U.S. view is consistent with the opinion of
    international legal scholars who have addressed that issue. With
    consistency over more than two hundred years, scholarly writings state
    that when a State ceases to exist (becomes ``extinct''), that State's
    treaties lapse. The lapsing occurs by operation of law--that is,
    automatically upon the State's extinction. It does not require action
    by any other treaty party. (A possible exception to this rule relates
    to ``dispositive'' treaties--that is, treaties that irrevocably fix a
    right to particular territory, e.g., delineate borders between States.
    The ABM Treaty, which is terminable by either party upon six months'
    notice, is not ``dispositive.'')
        President William Clinton has taken the view that the ABM Treaty of
    1972 remains ``in force.'' In November 1997, he wrote that the
    ``succession'' issue is ``unsettled,'' adding: ``Neither a simple
    recognition of Russia as the sole ABM successor (which would have
    ignored several former Soviet states with significant ABM interests)
    nor a simple recognition of all NIS [newly independent states] as full
    ABM successors would have preserved fully the original purpose and
    substance of the Treaty, as approved by the Senate in 1972.'' In May
    1998, President Clinton stated that the ABM Treaty is in force between
    the United States and the Russian Federation. He did not state the
    principle of law on which he based this conclusion. Nor did he explain
    how this conclusion can be squared with his aforementioned November
    1997 statement.
        The pertinent sources of international law support the conclusion
    that, upon the USSR's extinction, the ABM Treaty lapsed, so it no
    longer has the force of international law. The United States has never
    before considered itself bound by international law to accept as its
    treaty partner the successor to an extinct State.
        Were the President to use the recognition function to make a treaty
    that would not otherwise exist, he would put the United States under a
    legal obligation to other States without Senate advice and consent. The
    President's recognition authority cannot be exercised in a manner that
    would nullify the U.S. Senate's authority to advise and consent on the
    making of a treaty.
        If a foreign State ceases to exist under international law and,
    consequently, a bilateral treaty between the extinct State and the
    United States lapses, the President cannot bring a new treaty into
    force between the United States and a successor to the extinct State
    without Senate advice and consent. In other words, the President
    cannot, without Senate approval, bring a lapsed treaty back to life by
    declaring that a given foreign State is the successor or continuation
    of an extinct State. Principles of international law govern the issue
    of the extinction of States.
        In sum, the ABM Treaty was a bilateral, non-dispositive treaty. In
    accordance with longstanding principles of international law, expounded
    with remarkable consistency by numerous officials and scholars from
    various countries over hundreds of years, when the USSR became extinct,
    its bilateral, non-dispositive treaties lapsed. Hence, the ABM Treaty
    lapsed by operation of law--that is, automatically--when the USSR
    dissolved in 1991. It did not become a treaty between the United States
    and the Russian Federation.

    2. The collapse of the Soviet Union and the end of the 1972 Anti-
            Ballistic Missile Treaty: A Memorandum of Law by David Rivkin
            and Lee Casey
        The ABM Treaty became extinct when the Soviet Union dissolved.
    Treaties are a species of contract that may be rendered impossible, and
    discharged as a matter of law, by the disappearance of a treaty
    partner. Under the applicable rules of international and constitutional
    law, the ABM Treaty could have survived the Soviet Union's dissolution
    only if one or more states survived that both continued the Soviet
    Union's sovereignty, its international legal personality, and were
    capable of fulfilling the terms and conditions of the original treaty
    ``unimpaired.'' No such state survived the Soviet Union.
        ``The President's assertion that Russia is an ABM Treaty party is
    incorrect. The Russian Federation is not merely a continuation of the
    Soviet Union under a different name and system of government, as the
    Soviet Union was a continuation of the Romanov Empire. When the Soviet
    Union dissolved in 1991, both that empire, and the Russian state around
    which it was built, collapsed. Boris Yeltsin's Russia is sui generis.
        Moreover, even if today's Russia could be considered to be a
    continuation of the Soviet Union, it could not itself carry out the
    Soviet Union's obligations under the ABM Treaty. That agreement was
    based upon a number of fundamental assumptions about the parties and
    their place in the world order during the Cold War. These assumptions
    now are obsolete. Moreover, the ABM Treaty had a critical geographical
    component, which at bottom guaranteed the United States and the Soviet
    Union unrestricted access for their ICBMs to the entire territory of
    the other party. The Russian Federation controls only a part of the
    Soviet Union's territory, and has lost control over many of the Soviet
    Union's most important population centers. Any treaty with Russia alone
    would not preserve the bargain the United States originally agreed to
    in 1972.
        The conclusion that the ABM Treaty automatically was discharged in
    1991 also is supported by application of either of the prevailing
    methods of analysis governing questions of state succession to
    treaties--the ``continuity'' analysis and the ``clean slate'' analysis.
    Under the continuity analysis, even if one or more former Soviet
    Republics was considered to continue the U.S.S.R.'s international legal
    personality, the ABM Treaty could not have survived because it was a
    bilateral treaty ``personal'' to the Soviet Union. Such treaties are
    automatically discharged when one treaty partner disappears. Under the
    clean slate analysis, one or more of the former Soviet Republics would
    have to agree to undertake the Soviet Union's ABM Treaty obligations,
    and the United States would have to accept this new state as a treaty
    partner. This acceptance would constitute the creation of a new treaty,
    and could only be effected with the advice and consent of the Senate.
        Today, the ABM Treaty can be revived only with the participation of
    the United States Senate. The substitution of one or more former Soviet
    Republics for the Soviet Union would fundamentally change the ABM
    Treaty's original bargain, to which the Senate consented. The President
    cannot, on his own authority, change the ABM Treaty in so fundamental a
    manner without obtaining the Senate's advice and consent again.
                                     ______

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                          May 25, 1999.

                                   MEMORANDUM

    To: Republican Members, Committee on Foreign Relations
    Through: Stephen E. Biegun
    From: Marshall Billingslea and Sherry Grandjean
    Subject: Cornerstone of Our Security?: Should the Senate Reject a
                Protocol to Reconstitute the ABM Treaty with Four New
                Partners?

        The Committee will hold a hearing on the ballistic missile threat
    to the United States, the need for a national missile defense, and the
    ABM Treaty on Wednesday, May 26, at 10:15 AM in SD-562. The witness
    will be the Honorable Henry A. Kissinger, former Secretary of State.
    Senator Helms will preside.

        Attachment.

    Basic Aspects of the Changed Security Environment
        A number of trends have profoundly altered the global security
    environment in the post-Cold War era, calling into question traditional
    assumptions about the relationship between offensive and defensive
    systems, the wisdom of a U.S. strategy of mutually-assured destruction
    (``MAD''), and the 1972 Anti-Ballistic Missile Treaty. The following
    represent the most fundamental changes with relevance to the
    Committee's ongoing review of the ABM Treaty.

       The technology associated with a national missile defense
            has matured. The Committee has heard testimony from expert
            witnesses who believe that a national missile defense is
            technically feasible. An effective national missile defense,
            therefore, is an achievable objective today, whereas, in 1972,
            it was only a theoretical concept.
       The relationship with Russia is vastly different from that
            with the Soviet Union. Not only is the relationship far less
            adversarial, despite flare-ups over issues such as Kosovo, but
            Russia is no longer willing, nor able, to devote enormous sums
            of money to the development and maintenance of an overwhelming
            ICBM force.
       The United States increasingly is less concerned with the
            possibility of intentional missile attack by Russia, and is
            more concerned with the intentions of a plethora of other
            nations which either possess, or are on the verge of acquiring,
            ICBM capabilities.
       Extensive foreign assistance relating to ballistic missile
            design, development, and deployment is now available, and is
            accelerating missile programs. Not only has the past decade
            seen extraordinary improvements in the indigenous production
            capabilities of various countries, and the spread of commercial
            launch programs, but it also has witnessed a dramatic increase
            in the availability of outside help to countries seeking
            ballistic missiles. As the Rumsfeld Commission noted: ``Foreign
            assistance is not a wild card. It is a fact.'' This means that
            the missile threat to the U.S. is growing and evolving in ways
            that the U.S. intelligence community cannot always predict.
       The possibility of unauthorized or accidental launch from
            Russia's existing nuclear arsenals is increasing. As the
            prospects for domestic turmoil grow in Russia, the security of
            the mobile transporter-erector-launchers carrying nuclear ICBMs
            has become an increasing concern for the United States.
    The Revolution in Military Affairs and the Post Cold War World
        At this point it is appropriate to make three general observations
    about the ongoing revolution in military affairs. United States defense
    planners are now challenged to conceptualize future conflict in an
    environment undergoing dramatic transformations. A ``revolution in
    military affairs'' (RMA) offers the U.S. the opportunity to capitalize
    upon emerging technologies to compensate for force structure reduction
    and to maximize platform capabilities. Naturally the identification of
    those technologies becomes critical; failure in this respect threatens
    a military with obsolescence. Similarly, this revolution offers other
    countries the opportunity to offset numerical and qualitative
    inferiorities vis-a-vis the U.S. military with innovation, and--in the
    case of ICBMs carrying nuclear, chemical, or biological warheads--
    possibly to neutralize the conventional Armed Forces of the United
    States entirely.
        First, military revolutions depend not only on the emergence of new
    technologies, but upon the adaptation of operations and organizations
    to maximize the employment of cutting-edge capabilities. For example,
    German integration of aircraft and radios following the First World War
    enabled them to defeat the French and British in six-weeks in a
    combined arms offensive. Today's global positioning receiver, with its
    utility in both ballistic and cruise missiles (as well as UAVs), holds
    for the future battlefield what the radio posed for the Western Front
    in 1940.
        Second, the comparative advantage conferred upon a military by a
    given technology tends to be short-lived. Moreover, the initial
    advantage by no means suggests continued dominance, or even
    competitiveness. In this environment, the balance between offensive and
    defensive capabilities, and the ascendancy of one over the other, is in
    a continual state of flux. Defensive technologies have now matured,
    making both theater- and national-missile defenses an effective and
    affordable capability.
        Third, national objectives and strategic cultures prove critical
    variables determining the manner in which countries capitalize upon
    revolutions in military affairs. Perhaps the greatest challenge in the
    next century will be posed by a regional aggressor (such as China,
    North Korea, or Iran) that decides not to take the United States ``head
    on'' in a conventional confrontation, but rather elects to use tactics
    more common to low-intensity conflicts in order to secure its
    objectives. It will be incumbent upon those who would challenge the
    United States to devise strategies which take into account the changing
    dimensions of the operational environment--future warfare will be waged
    across a variety of fronts and in the public domain. Since the United
    States has a decided, and apparent, advantage in high-intensity
    conventional warfare, future aggressors may adopt strategies which are
    fundamentally political in nature. If conventional military action
    alone does not offer prospects for success, it will be relegated to a
    secondary role. Operations will be characterized by terrorism,
    subversion, and efforts at blackmail using WMD and ICBM capabilities.
    An ICBM pointed at a U.S. city is, after all, a political instrument of
    threatened terror--not a military weapon per se.
        In other words, a future aggressor is likely to employ strategies
    that tend towards the indirect and unconventional, emphasizing non-
    military approaches, or at least non-traditional efforts, to deter U.S.
    and/or coalition opposition and to deny opposition critical nodes from
    which to operate. Those who would engage the U.S. will follow several
    imperatives:

       The dominance of political thinking over military interests.
       The necessity to integrate various elements of power into a
            cohesive strategy.
       The importance of adaptability and flexibility, the
            likelihood of protracted conflict.

        Such a state could be expected to prove willing to assume a
    disproportionate share of casualties, collateral damage, and
    environmental destruction in an effort to exploit the inevitable social
    tensions arising in the United States from protracted conflict.
    Accordingly the most important aspects of the country's order of battle
    will not be the number of main battle tanks, armored fighting vehicles,
    and artillery that it fields, but the number of nuclear, chemical, and
    biological munitions, types of delivery systems (with particular
    emphasis on long-range ballistic missiles), and access to commercial
    satellite communications networks it possesses, and the way its seeks
    to shield these capabilities--presumably with non-belligerents--from
    the deep-strike capabilities of the U.S. Nor can we be sure that simple
    notions of overwhelming and devastating nuclear retaliation will be
    sufficient to deter a nation that is prepared to absorb immense
    casualties and ``ride out the storm.''
        An environment in which Third World powers field WMD mounted on
    ballistic or cruise missiles will circumscribe the United States'
    crisis response capability. The use of forward-based tactical platforms
    will become more difficult with the increased likelihood that U.S.
    forces will be detected and engaged at their points of entry into the
    theater. Indeed, the fact that a number of regional powers are actively
    seeking ballistic missiles with WMD warheads ultimately will preclude
    the U.S. military from forward deployments unprotected by theater
    ballistic missile defenses. It is in this vein that Andrew Marshall,
    Director of the Defense Department's Office of Net Assessment, has
    warned against the creation of ``large, juicy targets.'' Future
    regional aggressors will be well aware that U.S. casualties are of
    greater political significance than military consequence. Moreover, as
    the ability to inflict devastation via ICBMs grows ever more available,
    the United States homeland itself will become an inviting target. Thus
    U.S. forward deployments also might be circumscribed unless a national
    missile defense can neutralize a threat to U.S. citizens.
        Deterrence during the Cold War was based upon assumptions of
    rationality which allowed the United States and Russia to predict each
    others reactions with a fair degree of success. Moreover, communication
    and the centralization of command control allowed for mutual
    familiarity between the United States and the Soviet Union over one
    another's plans for reaction in crisis situations. The potential for an
    action-reaction spiral was controlled by a strategic parity of sorts at
    the top of the escalatory ladder. The post-Cold War era has none of the
    predictability or parity of its balanced, bipolar predecessor. Indeed,
    the role of the conventional/nuclear balance seems to have reversed
    completely. Whereas strategic forces were previously essential to the
    U.S. as a means of countering the conventional superiority of the
    Warsaw Pact, now the commitment of conventional forces may prove
    critical to countering or reversing the proliferation of nuclear
    weapons in the Third World. In parallel, the acquisition of WMD may be
    accelerated by desires to counter conventional imbalances. This shift
    was poignantly enunciated by Les Aspin in 1992, when he recognized that
    while nuclear weapons may still serve as ``great equalizers,'' it is
    now the United States that is the potential ``equalizee.''
    From Cold War Theories of Deterrence to Modern Notions of Compellance/
            Warfighting Use
        China is a case study in how countries increasingly are thinking
    about the warfighting utility of ballistic missiles vis-a-vis the
    United States. The People's Liberation Army (PLA) views advanced
    ballistic and cruise missile capability as an essential element of its
    future warfare plans. Indeed, the PLA seems to regard missile
    development as more important than the acquisition of any other single
    capability, including air or naval forces. This preeminence certainly
    is reflected in China's developing strategy and doctrine. PLA doctrine,
    as it concerns the role of missiles, has migrated conceptually from
    Cold War notions of deterrence (e.g., the use of nuclear missiles to
    deter other nuclear powers) to an approach that foresees a wide range
    of active/compellant uses, both tactical and strategic, for ballistic
    and cruise missiles. In other words, China has increasingly begun to
    think of the operational utility of nuclear-armed missiles (as well as
    non-nuclear armed systems).
        An advanced ballistic and cruise missile capability is important to
    the PRC for several reasons:

        First, this capability is meant to avert United States intervention
    in Asia in an effort to thwart Chinese regional ambitions. By
    developing a variety of nuclear and nonnuclear missiles, the PLA hopes
    to compel the United States to refrain from supporting Taiwan or
    projecting power in Asia. Continuing U.S. adherence to the 1972 Anti-
    Ballistic Missile Treaty, and the resultant policy of deliberate
    vulnerability to nuclear missile attack, have only played into the
    hands of this strategy, and reinforced the determination of the PRC to
    emphasize the aggressive role of ballistic missiles to offset U.S.
    conventional superiority.
        A clear indication of Chinese thought on this matter was given
    during a 1995-1996 winter visit to China by former Pentagon official
    Charles Freeman (during which a Chinese official asserted that the
    United States would not challenge China militarily over Taiwan because
    American leaders ``care more about Los Angeles than they do about
    Taiwan''). In other words, the PLA may believe that China's strategic
    deterrent would give it the ability to act against Taiwan with
    impunity. At a minimum, the ability to place U.S. cities at risk during
    a crisis would--in the view of the PRC--prompt the U.S. to think twice
    about intervening.
        In other words, the primary motivation for acquiring such systems,
    in this case, is not military in nature, but political. Nor is China
    the only country that has drawn such conclusions about the utility of
    missile systems. Iranian defense planners, for example, have oriented
    their country's military towards a posture presumably designed to deter
    the United States from engaging in military activities in the Gulf.
    Iranian analysts have openly claimed that missile systems represent a
    critical deterrent to outside attack, arguing that Iran should ``build
    up its own short, medium and long-range surface-to-surface was well as
    surface-to-air missiles.'' \1\
    ---------------------------------------------------------------------------
        \1\ ``Preparing for Protection of our National Interests,''
    Resalat, December 3, 1990.

        Second, missiles allow the PLA to exploit the vulnerabilities of
    the military forces of the United States and other Asian adversaries,
    none of whom have effective defenses against theater or tactical
    ballistic or cruise missiles. Modernization of missile capabilities,
    coupled with weapons of mass destruction (WMD), provides China the
    ability to threaten the United States' center of gravity.
        Presumably the PRC has recognized, as a result of the Gulf War, the
    need to deny the United States access to forward-based facilities, and
    to hold U.S. naval power projection capabilities (i.e., the aircraft
    carriers) at risk. Advanced missile capabilities not only accomplish
    this objective, but also provide China with the means to strike targets
    in Taiwan, U.S. military facilities in Korea and Japan, and to hold
    locations throughout the region at risk.
        China recognizes that, if properly used, its ballistic and cruise
    missile delivery systems may circumscribe the United States' crisis
    response capability. Indeed, the prospect of devastating attack on a
    U.S. city might, if communicated properly, deter the U.S. from
    responding at all. As Sun Tzu put it, the objective is ``to defeat the
    enemy without fighting.''
        China's possession of a full spectrum of missile capabilities also
    makes the use of forward-based tactical platforms more difficult, since
    U.S. forces can be attacked at their points of entry into the Asian
    theater. Aircraft carriers will be forced to operate further at sea,
    and certainly would be precluded from entering the Strait of Taiwan.
        Indeed, the fact that China is actively seeking a robust nuclear
    missile capability suggests a desire to preclude the U.S. military from
    forward deployments at all. The PRC is well aware that U.S. casualties
    are likely to be of greater political significance than military
    consequence. For this reason, China views its growing missile
    capability as an instrument of intimidation and blackmail, in addition
    to a valuable military weapon.
        China's emphasis on missiles also is eminently practical, from a
    military standpoint. China cannot today field a modern air force or
    navy, but they certainly can build a variety of ultra-modern missiles.
    Faced with a Taiwanese air force comprised of the most sophisticated
    combat aircraft on the world market, China has little choice in
    overcoming Taiwan's tactical air superiority but to rely on waves of
    short-range ballistic and cruise missiles.
        For this reason China has been examining the use of combined GPS/
    Inertial and Terrain-Contour Matching (TERCOM) guidance systems to give
    high accuracy to its cruise missiles and is interested in building
    cluster munitions for ballistic or cruise missile to disable runways.

        Finally, missiles are a critical element of a strategy for modern
    information warfare. China recognizes the importance of information
    dominance in a future conflict. Thus improvements in China's space
    launch and ballistic missile program (actually two sides of the same
    coin) will translate into an increased ability to launch more
    sophisticated reconnaissance and communication satellites. Further,
    China may also intend to use missiles to attack satellites in an effort
    to disrupt command, control, communications, and intelligence (C3I)
    systems. The PLA understands the U.S. military's dependence on
    reconnaissance and communications satellites, and realizes that, in
    absence of nuclear testing, the United States has ceased to ``harden''
    these systems. PLA literature on future warfare is replete with
    discussions of the need for a range of systems to deny the enemy's use
    of space.
         the evolution of china's limited deterrence concept, and the
      corresponding risk to the united states of ballistic missile attack
        As has been noted, warfighting requirements factor heavily in
    China's military and deterrence strategy. The concept, which began to
    evolve in the late 1980s, has been termed by Chinese strategists as
    ``limited deterrence'' (you xian wei she). At its core, this notion of
    deterrence stresses the role of sufficient counterforce and
    countervalue tactical, theater, and strategic nuclear forces to deter
    the escalation of conventional or nuclear war.
        In other words, the PRC seems to place less stock than either the
    United States or Russia did in the notion that a nuclear deterrent, and
    the prospect of mutually-assured destruction, will avert any major
    conflict. Accordingly, Chinese doctrine stresses the operational role
    of nuclear weapons to deter further escalation once a conflict begins,
    and--in the event that such fails--to ``strive to fight and win a
    nuclear war'' (li zheng da ying he zhanzheng).
        The war-fighting orientation of ``limited deterrence'' is apparent
    in various publications which suggest acceptable types of targets for
    China's missile forces. The consensus seems to be that China's limited
    deterrent ought to be able to perform the following operational
    missions:

       to strike enemy strategic missile bases and weapons
            stockpiles, major naval and air bases, heavy troop
            concentrations, and strategic reserve forces, and thus destroy
            the enemy's strategic attack capabilities;
       to strike the enemy's strategic warning and defense systems;
       to strike the enemy's rail hubs, bridges, and other
            important targets in its transportation networks;
       to strike basic industrial and military industrial targets;
       to strike selectively at several political and economic
            centers so as to create social chaos; and
       to launch warning strikes in order to undermine the enemy's
            will to launch nuclear strikes, and thereby contain nuclear
            escalation.

        As such, it is clear that China thinks quite differently about the
    utility of nuclear ICBMs than did the Soviet Union. Moreover, the
    matter of Taiwan--viewed by China as an internal matter--is unique to
    the U.S.-Chinese relationship. For these reasons, and doubtless many
    others not mentioned here, it would be ill-advised for the United
    States to assume that Cold War formulations such as MAD (mutually-
    assured destruction) will introduce strategic stability into the U.S.-
    Chinese relationship. Indeed, because of the emphasis in Chinese
    doctrine on compulsion, rather than deterrence, the United States'
    vulnerability under the ABM Treaty is actually a destabilizing factor
    (encouraging China in its pursuit of advanced ballistic missile
    capabilities).
                                     ______

                                           U.S. Senate,
                                Committee on Foreign Relations,
                                                    September 13, 1999.

                                   MEMORANDUM

    To: Republican Members, Committee on Foreign Relations
    Through: Stephen E. Biegun
    From: Sherry Grandjean and Marshall Billingslea
    Subject: National Intelligence Estimate: ``Foreign Missile Developments
                and the Ballistic Missile Threat to the United States
                Through 2015''

        The Committee will hold a hearing on the recent National
    Intelligence Estimate entitled ``Foreign Missile Developments and the
    Ballistic Missile Threat to the United States Through 2015'' on
    Thursday, September 16, 1999, at 2:30 PM in SD-419. The witness will be
    Mr. Bob Walpole, the National Intelligence Officer for Strategic and
    Nuclear Programs at the Central Intelligence Agency. Senator Helms will
    preside.

        Attachment.

       Significant Conclusions from the National Intelligence Estimate:
    ``Foreign Missile Developments and the Ballistic Missile Threat to the
                          United States Through 2015''

    Key Judgement
        ``We project that during the next 15 years the United States most
    likely will face ICBM threats from Russia, China, and North Korea,
    probably from Iran, and possibly from Iraq. The Russian threat,
    although significantly reduced, will continue to be the most robust and
    lethal, considerably more so than that posed by China, and orders of
    magnitude more than that potentially posed by other nations, whose
    missiles are likely to be fewer in number--probably a few to tens,
    constrained to smaller payloads, and less reliable and accurate than
    their Russian and Chinese counterparts.''
    Case-by-Case Analysis

    North Korea

       ``North Korea could convert its Taepo Dong-1 space launch
            vehicle (SLV) into an ICBM that could deliver a light payload
            (sufficient for a biological or chemical weapon) to the United
            States, albeit with inaccuracies that would make hitting large
            urban targets improbable.''
       ``North Korea is more likely to weaponize the larger Taepo
            Dong-2 as an ICBM that could deliver a several-hundred kilogram
            payload (sufficient for early generation nuclear weapons) to
            the United States. Most analysts believe it could be tested at
            any time, probably initially as an SLV, unless it is delayed
            for political reasons.''

    Iran

       ``Iran could test an ICBM that could deliver a several-
            hundred kilogram payload to many parts of the United States in
            the last half of the next decade using Russian technology and
            assistance.''
       ``Most analysts believe it could test an ICBM capable of
            delivering a lighter payload to the United States in the next
            few years following the North Korean pattern. Analysts differ
            on the likely timing of Iran's first test of an ICBM that could
            threaten the United States--assessments range from likely
            before 2010 and very likely before 2015 (although an SLV with
            ICBM capability probably will be tested in the next few years)
            to less than an even chance of an ICBM test by 2015.''

    Iraq

       ``Iraq could test a North Korean-type ICBM that could
            deliver a several-hundred kilogram payload to the United States
            in the last half of the next decade depending on the level of
            foreign assistance.''
       ``Although less likely, most analysts believe it could test
            an ICBM that could deliver a lighter payload to the United
            States in a few years based on its failed SLV or the Taepo
            Dong-1, if it began development now. Analysts differ on the
            likely timing of Iraq's first test of an ICBM that could
            threaten the United States--assessments range from likely
            before 2015, possibly before 2010 (foreign assistance would
            affect capability and timing) to unlikely before 2015.''

    Russia

       ``Its strategic force will remain formidable through and
            beyond 2015, but the size of this force will decrease
            dramatically--well below arms control limits--primarily because
            of budget constraints.''
       ``By 2015, Russia will maintain as many nuclear weapons on
            ballistic missiles as its economy will allow but well short of
            START I or II limitations.''

    China

       ``By 2015, China is likely to have tens of missiles capable
            of targeting the United States, including a few tens of more
            survivable, land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage.''
       ``China tested its first mobile ICBM in August 1999.''

    Forward-Based Threats

       ``A short- or medium-range ballistic missile could be
            launched at the United States from a forward-based sea platform
            positioned within a few hundred kilometers of U.S. territory.
            If the attacking country were willing to accept significantly
            reduced accuracy for the missile, forward-basing on a sea-based
            platform would not be a major technical hurdle. The reduced
            accuracy in such a case, however, would probably be better than
            that of some early ICBMs.''
       ``A commercial surface vessel, covertly equipped to launch
            cruise missiles, would be a plausible alternative for a
            forward-based launch platform. This method would provide a
            large and potentially inconspicuous platform to launch a cruise
            missile while providing at least some cover for launch
            deniability.''
                                   APPENDIX 2

     Foreign Missile Developments and the Ballistic Missile Threat to the
                   United States Through 2015--September 1999

                                    preface
        Congress has requested that the Intelligence Community produce
    annual reports on ballistic missile developments. We produced the first
    report in March 1998 and an update memorandum in October 1998 on the
    August North Korean launch of its Taepo Dong-1 space launch vehicie
    (SLV). Our 1999 report is a classified National Intelligence Estimate,
    which we have summarized in unclassified form in this paper.\1\
    ---------------------------------------------------------------------------
        \1\ This paper has been prepared under the auspices of the National
    Intelligence Officers for Strategic and Nuclear Programs, Bob Walpole.
    Prepared, September 1999.
    ---------------------------------------------------------------------------
        This year we examined future capabilities for several countries
    that have or have had ballistic missiles or SLV programs or intentions
    to pursue such programs. Using intelligence information and expertise
    from inside and outside the Intelligence Community, we examined
    scenarios by which a country could acquire an ICBM by 2015, including
    by purchase, and assessed the likelihood of various scenarios. (Some
    analysts believe that the. prominence given to missiles countries
    ``could'' develop gives more credence than is warranted to developments
    that may prove implausible.) We did not attempt to address all of the
    potential political, economic, and social changes that could occur.
    Rather, we analyzed the level of success and the pace countries have
    experienced in their development efforts, international technology
    transfers, political motives, military incentives, and economic
    resources. From that basis, we projected possible and likely missile
    developments by 2015 independent of significant political and economic
    changes. Subsequent annual reports will be able to account for such
    changes.
        Our projections for future ICBM developments are based on limited
    information and engineering judgment. Adding to our uncertainty is that
    many countries surround their ballistic missile programs with secrecy,
    and some employ deception. Although some key milestones are difficult
    to hide, we may miss others. For example, we may not know all aspects
    of a missile system's configuration until flight testing; we did not
    know until the launch last August that North Korea had acquired a third
    stage for its Taepo Dong-1.
        We took into account recommendations made in July 1998 by the
    Commission to Assess the Ballistic Missile Threat to the United States
    and incorporated the results of several academic and contractor
    efforts, including politico-economic experts to help examine future
    environments that might foster ICBM sales and missile contractors to
    help postulate potential ICBM configurations that rogue states could
    pursue.
                                   key points
        We project that during the next 15 years the United States most
    likely will face ICBM threats from Russia, China, and North Korea,
    probably from Iran, and possibly from Iraq. The Russian threat,
    although significantly reduced, will continue to be the most robust and
    lethal, considerably more so than that posed by China, and orders of
    magnitude more than that potentially posed by other nations, whose
    missiles are likely to be fewer in number--probably a few to tens,
    constrained to smaller payloads, and less reliable and accurate than
    their Russian and Chinese couterparts.
        We judge that North Korea, Iran, and Iraq would view their ICBMs
    more as strategic weapons of deterrence and coercive diplomacy than as
    weapons of war. We assess that:

       North Korea could convert its Taepo Dong-1 space launch
            vehicle (SLV) into an ICBM that could deliver a light payload
            (sufficient for a biological or chemical weapon) to the United
            States, albeit with inaccuracies that would make hitting large
            urban targets improbable. North Korea is more likely to
            weaponize the larger Taepo Dong-2 as an ICBM that could deliver
            a several-hundred kilogram payload (sufficient for early
            generation nuclear weapons) to the United States. Most analysts
            believe it could be tested at any time, probably initially as
            an SLV, unless it is delayed for political reasons.
       Iran could test an ICBM that could deliver a several-hundred
            kilogram payload to many parts of the United States in the last
            half of the next decade using Russian technology and
            assistance. Most analysts believe it could test an ICBM capable
            of delivering a lighter payload to the United States in the
            next few years following the North Korean pattern.
        --Analysts differ on the likely timing of Iran's first test of an
                ICBM that could threaten the United States--assessments
                range from likely before 2010 and very likely before 2015
                (although an SLV with ICBM capability probably will be
                tested in the next few years) to less than an even chance
                of an ICBM test by 2015.
       Iraq could test a North Korean-type ICBM that could deliver
            a several-hundred kilogram payload to the United States in the
            last half of the next decade depending on the level of foreign
            assistance. Although less likely, most analysts believe it
            could test an ICBM that could deliver a lighter payload to the
            United States in a few years based on its failed SLV or the
            Taepo Dong-1, if it began development now.
        --Analysts differ on the likely timing of Iraq's first test of an
                ICBM that could threaten the United States--assessments
                range from likely before 2015, possibly before 2010
                (foreign assistance would affect capability and timing) to
                unlikely before 2015.
       By 2015, Russia will maintain as many nuclear weapons on
            ballistic missiles as its economy will allow but well short of
            START I or II limitations.
       By 2015, China is likely to have tens of missiles capable of
            targeting the United States, including a few tens of more
            survivabe, land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage. China tested its first mobile ICBM in August
            1999.

        Sales of ICBMs or SLVs, which have inherent ICBM capabilities and
    could be converted relatively quickly with little or no warning, could
    increase the number of countries able to threaten the United States.
    North Korea continues to demonstrate a willingness to sell its
    missiles. Although we judge that Russia or China are unlikely to sell
    an ICBM or SLV in the next fifteen years, the consequences of even one
    sale would be extremely serious.
        Several other means to deliver weapons of mass destruction to the
    United States have probably been devised, some more reliable than ICBMs
    that have not completed rigorous testing programs. For example.
    biological or chemical weapons could be prepared in the United States
    and used in large population centers, or short-range missiles could be
    deployed on surface ships. However, these means do not provide a nation
    the same prestige and degree of deterrence or coercive diplomacy
    associated with ICBMs.
        The proliferation of medium-range ballistic missiles (MRBMs)--
    driven primarily by North Korean No Dong sales--has created an
    immediate, serious, and growing threat to U.S. forces, interests, and
    allies, and has significantly altered the strategic balances in the
    Middle East and Asia. We judge that countries developing missiles view
    their regional concerns as one of the primary factors in tailoring
    their programs. They see their short- and medium-range missiles not
    only as deterrents but also as force-multiplying weapons of war,
    primarily with conventional weapons, but with options for delivering
    biological, chemical, and eventually nuclear weapons. South Asia
    provides one of the most telling examples of regional ballistic missile
    and nuclear proliferation:

       Pakistan has Chinese-supplied M-11 short-range ballistic
            missiles (SRBMs) and Ghauri MRBMs from North Korea.
       India has Prithvi I SRBMs and recently began testing the
            Agni II MRBM.
       We assess these missiles may have nuclear roles.

        Foreign assistance continues to have demonstrable effects on
    missile advances around the world, particularly from Russia and North
    Korea. Moreover, some countries that have traditionally been recipients
    of foreign missile technology are now sharing more amongst themselves
    and are pursuing cooperative missile ventures.
        We assess that countries developing missiles also will respond to
    U.S. theater and national missile defenses by deploying larger forces,
    penetration aids, and countermeasures. Russia and China each have
    developed numerous countermeasures and probably will sell some related
    technologies.

                                   Discussion

                                  introduction
        The worldwide ballistic missile proliferation problem has continued
    to evolve during the past year. The proliferation of technology and
    components continues. The capabilities of the missiles in the countries
    seeking to acquire them are growing, a fact underscored by North
    Korea's launch of the Taepo Dong-1 in August 1998. The number of
    missiles in these countries is also increasing. Medium- and short-range
    ballistic missile systems, particularly if armed with weapons of mass
    destruction (WMD) warheads, already pose a significant threat to U.S.
    interests, military forces, and allies overseas. We have seen increased
    trade and cooperation among countries that have been recipients of
    missile technologies from others. Finally, some countries continue to
    work toward longer-range systems, including ICBMs.
        We expect the threat to the United States and its interests to
    increase over the next 15 years. However, projecting political and
    economic developments that could alter the nature of the missile threat
    many years into the future is virtually impossible. The threat facing
    the United States in the year 2015 will depend on our changing
    relations with foreign countries, the political situation within those
    countries, economic factors, and numerous other factors that we cannot
    predict with confidence.

       For example, 15 years ago the United States and the Soviet
            Union were superpower adversaries in the midst of the Cold War,
            with military forces facing off in central Europe and competing
            for global power. Today, by contrast, the differences that
            separated the two countries during that period have been
            replaced by differences expected between modern nation states.
       Iraq is another example: 15 years ago it shared common
            interests with the United States. Since Iraq's invasion of
            Kuwait in 1990. Washington and Baghdad have been in numerous
            military and diplomatic conflicts.
       Finally, we do not know whether some of the countries of
            concern will exist in 15 years in their current state or as
            suppliers of missiles and technology.

        Recognizing these uncertainties, we have projected foreign
    ballistic missile capabilities into the future largely based on
    technical capabilities and with a general premise that relations with
    the United States will not change significantly enough to alter the
    intentions of those states pursuing ballistic missile capabilities.
    Future annual reports will be able to take account of any contemporary
    information that alters our projections.
    The Evolving Missile Threat in the Current Proliferation Environment
        The new missile threats confronting the United States are far
    different from the Cold War threat during the last three decades.
    During that period, the ballistic missile threat to the United States
    involved relatively accurate, survivable, and reliable missiles
    deployed in large numbers. Soviet--and to a much lesser extent
    Chinese--strategic forces threatened, as they still do, the potential
    for catastrophic, nation-killing damage. By contrast, the new missile
    threats involve states with considerably fewer missiles with less
    accuracy, yield, survivability, reliability, and range-payload
    capability than the hostile strategic forces we have faced for 30
    years. Even so, the new systems are threatening, but in different ways.
        First, although the majority of systems being developed and
    produced today are short- or medium-range ballistic missiles, North
    Korea's three-stage Taepo Dong-1 SLV demonstrated Pyongyang's potential
    to cross the 5,500-km ICBM threshold if it develops a survivable weapon
    for the system. Other potentially hostile nations could cross that
    threshold during the next 15 years. While it remains extremely unlikely
    that any potential adversary could inflict damage to the United States
    or its forces comparable to the damage that Russian or Chinese forces
    could inflict, emerging systems potentially can kill tens of thousands,
    or even millions of Americans, depending on the type of warhead, the
    accuracy, and the intended target.

    Classification of Ballistic Missiles by
     Range:
    Short-range ballistic missile (SRBM)......                Under 1,000 km
    Medium-range ballistic missile (MRBM).....             1,000 to 3,000 km
    Intermediate-range ballistic missile                   3,000 to 5,500 km
     (IRBM)...................................
    Intercontinental-range ballistic missile                   Over 5,500 km
     (ICBM)...................................

        Second, many of the countries that are developing longer-range
    missiles probably assess that the threat of their use would complicate
    American decision-making during crises. Over the last decade, the world
    has observed that missiles less capable than the ICBMs the United
    States and others have deployed can affect another nation's decision-
    making process. Though U.S. potential adversaries recognize American
    military superiority, they are likely to assess that their growing
    missile capabilities would enable them to increase the cost of a U.S.
    victory and potentially deter Washington from pursuing certain
    objectives. Moreover, some countries, including some without hostile
    intent towards the United States, probably view missiles as a means of
    providing an independent deterrent and war-fighting capabilities.
        Third, the probability that a WMD-armed missile will be used
    against U.S. forces or interests is higher today than during most of
    the Cold War. Ballistic missiles, for example, were used against U.S.
    forces during the Gulf war. More nations now have longer-range missiles
    and WMD warheads. Missiles have been used in several conflicts over the
    past two decades, although not with WMD warheads. Nevertheless, some of
    the regimes controlling these missiles have exhibited a willingness to
    use WMD.
        Thus, acquiring long-range ballistic missiles armed with WMD will
    enable weaker countries to do three things that they otherwise might
    not be able to do: deter, constrain, and harm the United States. To
    achieve these objectives, these WMD-armed weapons need not be deployed
    in large numbers; with even a few such weapons, these countries would
    judge that they had the capability to threaten at least politically
    significant damage to the United States or its allies. They need not be
    highly accurate; the ability to target a large urban area is
    sufficient. They need not be highly reliable, because their strategic
    value is derived primarily from the threat (implicit or explicit) of
    their use, not the near certain outcome of such use. Some of these
    systems may be intended for their political impact as potential terror
    weapons, while others may be built to perform more specific military
    missions, facing the United States with a broad spectrum of
    motivations, development, timelines, and resulting hostile
    capabilities. In many ways, such weapons are not envisioned at the
    outset as operational weapons of war, but primarily as strategic
    weapons of deterrence and coercive diplomacy.
        The progress of countries in Asia and the Middle East toward
    acquiring longer-range ballistic missiles has been dramatically
    demonstrated over the past 18 months:

       Most notably, North Korea's three-stage Taepo Dong-1 SLV has
            inherent, albeit limited, capabilities to deliver small
            payloads to ICBM ranges. Although the Taepo Dong-1 satellite
            attempt in August 1998 failed, North Korea demonstrated several
            of the key technologies required for an ICBM, including
            staging. As a space launch vehicle, however, it did not
            demonstrate a payload capable of surviving atmospheric reentry
            at ICBM ranges. We judge that North Korea would be unlikely to
            pursue weaponizing a three-stage Taepo Dong-1 as an ICBM,
            preferring instead to pursue the much more capable Taepo Dong-
            2, which we expect will be flight tested this year, unless it
            is delayed for political reasons.
       Pakistan flight-tested its 1,300 km range Ghauri missile,
            which it produced with North Korean assistance. (Pakistan also
            flight-tested the Shaheen I SRBM.)
       Iran flight-tested its 1,300 km range Shahab-3--a version of
            North Korea's No Dong, which Iran has produced with Russian
            assistance.
       India flight-tested its Agni II MRBM, which we estimate will
            have a range of about 2,000 km.
       China conducted the first flight test of its DF-31 mobile
            ICBM in August 1999: it will have a range of about 8,000 km.

        Many of these countries probably have considered ballistic missile
    defense countermeasures. Historically, the development and deployment
    of missile defense systems have been accompanied by the development of
    countermeasures and penetration aids by potential adversaries, either
    in reaction to the threat or in anticipation of it. The Russians and
    Chinese have had countermeasure programs for decades and are probably
    willing to transfer some related technology to others. We expect that
    during the next 15 years, countries other than Russia and China will
    develop countermeasures to Theater and National Missile Defenses.
    Threat Availability Before ``Deployment''
        Emerging long-range missile powers do not appear to rely on robust
    test programs to ensure a missile's accuracy and reliability--as the
    United States and the Soviet Union did during the Cold War. Similarly,
    deploying a large number of long-range missiles to dedicated, long-term
    sites--as the United States and the Soviet Union did--is not
    necessarily the path emerging long-range missile powers will choose. In
    many cases, a nation may decide that the ability to threaten with one
    or two long-range missiles is sufficient for its doctrinal or
    propaganda needs. China, for example, has only about 20 ICBMs; its
    doctrine requires only that it be able to hold a significant portion of
    an aggressor's population at risk.
        With shorter flight test programs--perhaps only one test--and
    potentially simple deployment schemes, the time between the initial
    flight test and the availability of a missile for military use is
    likely to be shortened. Once a missile has performed successfully
    through its critical flight functions, it would be available for the
    country to use as a threat or in a military role. Thus, we project the
    year for a first flight test rather than the projected date for a
    missile's ``deployment'' as the initial indication of an emerging
    threat. Moreover, using the date of the first projected flight test as
    the initial indicator of the threat recognizes that emerging long-range
    missile powers may not choose to deploy a large number of missiles and
    that an adversary armed with even a single missile capable of
    delivering a WMD-payload may consider it threatening. Using the first
    flight test results in threat projections a few years earlier than
    those based on traditional definitions of deployment, which may not
    apply as well to the emerging threats.
    Potential ICBM Threats to the United States
        We project that during the next 15 years the United States most
    likely will face ICBM threats from Russia, China, and North Korea,
    probably from Iran, and possibly from Iraq, although the threats will
    consist of dramatically fewer weapons than today because of significant
    reductions we expect in Russian strategic forces.

       The Russian threat will continue to be the most robust and
            lethal, considerably more so than that posed by China, and
            orders of magnitude more than that posed by the other three.
       Initial North Korean, Iranian, and Iraqi ICBMs would
            probably be fewer in number--a few to tens rather than hundreds
            or thousands, constrained to smaller payload capabilities, and
            less reliable and accurate than their Russian and Chinese
            counterparts.
       Countries with emerging ICBM capabilities are likely to view
            their relatively few ICBMs more as weapons of deterrence and
            coercive diplomacy than as weapons of war, recognizing that
            their use could bring devastating consequences. Thus, the
            emerging threats posed to the United States by these countries
            will be very different than the Cold War threat.

        North Korea. After Russia and China, North Korea is the most likely
    to develop ICBMs capable of threatening the United States during the
    next 15 years.

       North Korea attempted to orbit a small satellite using the
            Taepo Dong-1 SLV in August 1998, but the third stage failed
            during powered flight; other aspects of the flight, including
            stage separation, appear to have been successful.
       If it had an operable third stage and a reentry vehicle
            capable of surviving ICBM flight, a converted Taepo Dong-1 SLV
            could deliver a light payload to the United States. In these
            cases, about two-thirds of the payload mass would be required
            for the reentry vehicle structure. The remaining mass is
            probably too light for an early generation nuclear weapon but
            could deliver biological or chemical (BW/CW) warfare agent.
       Most analysts believe that North Korea probably will test a
            Taepo Dong-2 this year, unless delayed for political reasons. A
            two-stage Taepo Dong-2 could deliver a several-hundred kilogram
            payload to Alaska and Hawaii, and a lighter payload to the
            western half of the United States. A three-stage Taepo Dong-2
            could deliver a several-hundred kilogram payload anywhere in
            the United States.
       North Korea is much more likely to weaponize the more
            capable Taepo Dong-2 than the three-stage Taepo Dong-1 as an
            ICBM.

        Iran. Iran is the next hostile country most capable of testing an
    ICBM capable of delivering a weapon to the United States during the
    next 15 years.

       Iran could test an ICBM that could deliver a several-hundred
            kilogram payload to many parts of the United States in the
            latter half of the next decade, using Russian technology and
            assistance.
       Iran could pursue a Taepo Dong-type ICBM. Most analysts
            believe it could test a three-stage ICBM patterned after the
            Taepo Dong-1 SLV or a three-stage Taepo Dong-2-type ICBM,
            possibly with North Korean assistance, in the next few years.
       Iran is likely to test an SLV by 2010 that--once developed--
            could be converted into an ICBM capable of delivering a
            several-hundred kilogram payload to the United States.
       Analysts differ on the likely timing of Iran's first flight
            test of an ICBM that could threaten the United States.
            Assessments include:

              --likely before 2010 and very likely before 2015 (noting that
            an SLV with ICBM capabilities will probably be tested within
            the next few years);
              --no more than an even chance by 2010 and a better than even
            chance by 2015;
              --and less than an even chance by 2015.

        Iraq. Although the Gulf war and subsequent United Nations
    activities destroyed much of Iraq's missile infrastructure, Iraq could
    test an ICBM capable of reaching the United States during the next 15
    years.

       After observing North Korean activities, Iraq most likely
            would pursue a three-stage Taepo Dong-2 approach to an ICBM (or
            SLV), which could deliver a several-hundred kilogram payload to
            parts of the United States. If Iraq could buy a Taepo Dong-2
            from North Korea, it could have a launch capability within
            months of the purchase: if it bought Taepo Dong engines, it
            could test an ICBM by the middle of the next decade. Iraq
            probably would take until the end of the next decade to develop
            the system domestically.
       Although much less likely, most analysts believe that if
            Iraq were to begin development today, it could test a much less
            capable ICBM in a few years using Scud components and based on
            its prior SLV experience or on the Taepo
            Dong-1.
       If it could acquire No Dongs from North Korea, Iraq could
            test a more capable ICBM along the same lines within a few
            years of the No Dong acquisition.
       Analysts differ on the likely timing of Iraq's first flight
            test of an ICBM that could threaten the United States.
            Assessments include unlikely before 2015; and likely before
            2015, possibly before 2010--foreign assistance would affect the
            capability and timing.

        Russia. Russia's strategic offensive forces are experiencing
    serious budget constraints but will remain the cornerstone of its
    military power. Russia expects its forces to deter both nuclear and
    conventional military threats and is prepared to conduct limited
    nuclear strikes to warn off an enemy or alter the course of a battle.

       Russia currently has about 1,000 strategic ballistic
            missiles with 4,500 warheads.
       Its strategic force will remain formidable through and
            beyond 2015, but the size of this--force will decrease
            dramatically--well below arms control limits--primarily because
            of budget constraints.
       Russia will maintain as many strategic missiles and
            associated nuclear warheads as it believes it can afford, but
            well short of START I or II limitations.
              --If Russia ratifies START II, with its ban on multiple
            warheads on ICBMs, it would probably be able to maintain only
            about half of the weapons it could maintain without the ban.
       We judge that an unauthorized or accidental launch of a
            Russian strategic missile is highly unlikely so long as current
            technical and procedural safeguards are in place.

        China. Chinese strategic nuclear doctrine calls for a survivable
    long-range missile force that can hold a significant portion of the
    U.S. population at risk in a retaliatory strike.

       China's current force of about 20 CSS-4 ICBMs can reach
            targets in all of the United States.
       Beijing also is developing two new road-mobile, solid
            propellant ICBMs.
              --It conducted the first flight test of the mobile DF-31 ICBM
            in August 1999; we judge it will have a range of about 8,000 km
            and will be targeted primarily against Russia and Asia.
              --We expect a test of a longer range mobile ICBM within the
            next several years; it will be targeted primarily against the
            United States.
       China is developing the JL-2 SLBM, which we expect to be
            tested within the next decade. The JL-2 probably will be able
            to target the United States from launch areas near China.
       By 2015, China will likely have tens of missiles targeted
            against the United States, having added a few tens of more
            survivable land- and sea-based mobile missiles with smaller
            nuclear warheads--in part influenced by U.S. technology gained
            through espionage.
       China has had the technical capability to develop multiple
            RV payloads for 20 years. If China needed a multiple-RV (MRV)
            capability in the near term, Beijing could use a DF-31-type RV
            to develop and deploy a simple MRV or multiple independently
            targetable reentry vehicle (MIRV) \2\ for the CSS-4 in a few
            years. MIRVing a future mobile missile would be many years off.
    ---------------------------------------------------------------------------
        \2\ An MRV system releases multiple RVs along the missile's linear
    flight path, often at a single target; a MIRV system can maneuver to
    several different release points to provide targeting flexibility.
    ---------------------------------------------------------------------------
       China is also significantly improving its theater missile
            capabilities and is increasing the size of its SRBM force
            deployed opposite Taiwan.
       We assess that an unauthorized launch of a Chinese strategic
            missile is highly unlikely.
    Foreign Assistance
        Foreign assistance continues to have demonstrable effects on
    missile advances around the world. Moreover, some countries that have
    traditionally been recipients of foreign missile technology are now
    sharing more amongst themselves and are pursuing cooperative missile
    ventures.

       Russian missile assistance continues to be significant.
       China continues to contribute to missile programs in some
            countries.
       North Korea may expand sales.

        Moreover, changes in the regional and international security
    environment--in particular, Iran's Shahab-3 missile test and the Indian
    and Pakistani missile and nuclear tests--probably will fuel missile and
    WMD interests in the region.
        Sales of ICBMs or SLVs, which have inherent ICBM capabilities,
    could further increase the number of countries that will be able to
    threaten the United States with a missile strike. North Korea continues
    to demonstrate a willingness to sell its missiles and related
    technologies and will probably continue doing so, perhaps under the
    guise of selling SLVs. In the past, we judged that political conditions
    made the sale of a Russian or Chinese ICBM unlikely and that the
    geopolitical situation would not change enough for either to decide
    that the sale of an ICBM would be in its national interest. We have not
    detected the transfer of a complete ICBM by Russia or China, nor do we
    have any information to indicate either plans to transfer one.
    Projecting the likelihood of such a transfer 15 years into the future
    is very uncertain, driven in part by unpredictable future economic
    conditions, how Moscow will perceive its position vis-a-vis the West,
    and future Russian and Chinese perceptions of U.S. ballistic missile
    defenses. As we attempt to project the politico-military-economic
    environment for that period, we continue to judge it unlikely that
    Moscow or Beijing would decide that the financial and perhaps strategic
    inducements to sell a complete ICBM, SLV, or the technologies
    tantamount to a complete ICBM, would outweigh the perceived political
    and economic risks of doing so.\3\
    ---------------------------------------------------------------------------
        \3\ The sale of an ICBM is prohibited by the START Treaty.
    ---------------------------------------------------------------------------
    Warning Times and Our Ability to Forecast Missile Development and
            Acquisition
        In our 1998 annual report. we stated we had high confidence that we
    could provide warning five years before deployment that a potentially
    hostile country was trying to develop and deploy an ICBM. Because
    countries of concern could threaten to use ballistic missiles following
    limited flight-testing and before a missile is deployed in the
    traditional sense, we broadened our warning in the 1998 update
    memorandum to encompass the first successful flight test as the
    beginning of an ``initial threat availability.''
        Our ability to provide warning for a particular country depends
    highly on our collection capabilities. For some countries, we have
    relatively large bodies of evidence on which to base our assessments;
    for others, our knowledge of the programs being pursued is limited. Our
    monitoring and warning about North Korea's efforts to achieve an ICBM
    capability constitute an important case study on warning. In 1994, we
    were able to give five years warning of North Korea's efforts to
    acquire an ICBM capability. At that time, the Intelligence Community
    judged that:

       The Taepo Dong-1 was a two-stage, medium-range missile that
            could be tested in 1994 and deployed as early as 1996.
       The Taepo Dong-2 was a larger two-stage missile that would
            provide P'yongyang and other countries the potential to deliver
            nuclear weapons to parts of the United States, and biological
            and chemical weapons further. The Community judged that the
            Taepo Dong-2 flight test program would begin within a few years
            of 1994 with initial deployment in 2000 or later.

        Thus, the Intelligence Community warned that North Korea was
    pursuing an ICBM capability and would flight test an ICBM (the Taepo
    Dong-2) in the mid- to late 1990s. When North Korea did not flight test
    either Taepo Dong missile until 1998, and then used the Taepo Dong-1 as
    a space launch vehicle, it became clear that the Intelligence Community
    had:

       Overestimated that North Korea would begin flight testing
            the Taepo Dong-1 and Taepo Dong-2 missiles years earlier than
            turned out to be the case.
       Projected correctly the timing of a North Korean missile
            with the potential to deliver payloads to the ICBM range of
            5,500-km.
       Underestimated the capabilities of the Taepo Dong-1 by
            failing to anticipate the use of the third stage.

        North Korea demonstrated intercontinental-range booster
    capabilities roughly on the timetable projected in 1994, but with a
    completely unanticipated vehicle configuration. The Intelligence
    Community had expected North Korea to achieve an ICBM-range capability
    initially with the two-stage Taepo Dong-2, not the Taepo Dong-1 with an
    unguided third stage. North Korea's use of the Taepo Dong-1 with a
    third stage as a space launch vehicle was completely unexpected. Until
    the flight test, the Intelligence Community was unaware of the third
    stage and the intended use of the Taepo Dong-1 as a space launch
    vehicle.
        Detecting or suspecting a missile development program and
    projecting the timing of the emerging threat, although difficult, are
    easier than forecasting the vehicle's configuration or performance with
    accuracy. Thus, we have more confidence in our ability to warn of
    efforts by countries to develop ICBMs than we have in our ability to
    describe accurately the missile configurations that will comprise that
    threat, especially years prior to flight testing. Furthermore,
    countries practice denial and deception to hide or mask their
    intentions--for example, testing an ICBM as a space launch vehicle.
        We continue to judge that we may not be able to provide much
    warning if a country purchased an ICBM or if a country already had an
    SLV capability. Nevertheless, the initiation of an SLV program is an
    indicator of a potential ICBM program. North Korea and other countries,
    such as Iran and an unconstrained Iraq, could develop an SLV booster,
    then flight-test it as an ICBM with a reentry vehicle (RV) with little
    or no warning. Thus, we consider space launch vehicles, especially in
    the hands of countries hostile to the United States, to have
    significant ballistic missile potential.
        We also judge that we may not be able to provide much, if any,
    warning of a forward-based ballistic missile or land-attack cruise
    missile (LACM) threat to the United States. Moreover, LACM development
    can draw upon dual-use technologies. We expect to see acquisition of
    LACMs by many countries to meet regional military requirements.
        Space Launch Vehicle (SLV) Conversion. Nations with SLVs could
    convert them into ICBMs relatively quickly with little or no chance of
    detection before the first flight test. Such a conversion would include
    the development of a reentry vehicle (RV). A nation could try to buy an
    SLV with the intent to convert it into an ICBM; detection of the sale
    should provide a few years of warning before a flight test, although we
    are not confident that we could detect a covert sale. Finally, many
    SLVs would be cumbersome as converted military systems and could not be
    made readily survivable, a task that in many cases would be
    technologically and economically formidable.
        Countries might mask their ICBM developments as SLV programs. They
    could test the complete booster and in most cases the guidance system,
    which would have to be reprogrammed to fly a ballistic missile
    trajectory. They could not mask a warhead reentry under the guise of a
    space launch. Nevertheless, they could develop RVs and maintain them
    untested for future use, albeit with significantly reduced confidence
    in their reliability.

       If the country had Russian or Chinese assistance in a covert
            development effort, it could have relatively high confidence
            that the RV would survive and function properly.
       If a country developed an untested RV without foreign
            assistance, its confidence would diminish, but we could not be
            confident it would fail. Significant amounts of information
            about reentry vehicles are available in open sources. A low
            performing RV with high flight stability would be a logical
            choice for developing an ICBM RV with minimal, or no, testing.
            The developing country could have some confidence that the
            system would survive reentry, although confidence in its proper
            delivery of the weapon would be lower without testing.
    Alternative Threats to the United States
        Several other means to deliver WMD to the United States have
    probably been devised, some more reliable than ICBMs that have not
    completed rigorous testing and validation programs. The goal of an
    adversary would be to move the weapon within striking distance without
    a long-range ICBM. Most of these means, however, do not provide the
    same prestige and degree of deterrence or coercive diplomacy associated
    with long-range missiles, but they might be the means of choice for
    terrorists.
        Forward-Based Threats. Several countries are technically capable of
    developing a missile-launch mechanism to use from forward-based ships
    or other platforms to launch SRBMs and MRBMs, or land-attack cruise
    missiles against the United States. Some countries may develop and
    deploy a forward-based system during the period of the next 15 years.
        A short- or medium-range ballistic missile could be launched at the
    United States from a forward-based sea platform positioned within a few
    hundred kilometers of U.S. territory. If the attacking country were
    willing to accept significantly reduced accuracy for the missile,
    forward-basing on a sea-based platform would not be a major technical
    hurdle. The reduced accuracy in such a case, however, would probably be
    better than that of some early ICBMs. The simplest method for launching
    a ship-borne ballistic missile would be to place a secured TEL onboard
    the ship and launch the missile from its TEL. If accuracy were a major
    concern, the missile and launcher would be placed on a stabilization
    platform to compensate for wave movement of the ocean, or the country
    would need to add satellite-aided navigation to the missile.
        A concept similar to a sea-based ballistic missile launch system
    would be to launch cruise missiles from forward-based platforms. This
    method would enable a country to use cruise missiles acquired for
    regional purposes to attack targets in the United States.

       A country could launch cruise missiles from fighter, bomber,
            or commercial transport aircraft outside U.S. airspace. U.S.
            capability to detect planes approaching the coast, and the
            limited range of fighter and bomber aircraft of most countries,
            probably would preclude the choice of military aircraft for the
            attack. Using a commercial aircraft, however, would be feasible
            for staging a covert cruise missile attack, but it still would
            be difficult.
       A commercial surface vessel, covertly equipped to launch
            cruise missiles, would be a plausible alternative for a
            forward-based launch platform. This method would provide a
            large and potentially inconspicuous platform to launch a cruise
            missile while providing at least some cover for launch
            deniability.
       A submarine would have the advantage of being relatively
            covert. The technical sophistication required to launch a
            cruise missile from a submarine torpedo or missile tube most
            likely would require detailed assistance from the defense
            industry of a major naval power.

        Non-Missile WMD Threats to the United States. Although non-missile
    means of delivering WMD do not provide the same prestige or degree of
    deterrence and coercive diplomacy associated with an ICBM, such options
    are of significant concern. Countries or non-state actors could pursue
    non-missile delivery options, most of which:

       Are less expensive than developing and producing ICBMs.
       Can be covertly developed and employed; the source of the
            weapon could be masked in an attempt to evade retaliation.
       Probably would be more reliable than ICBMs that have not
            completed rigorous testing and validation programs.
       Probably would be more accurate than emerging ICBMs over the
            next 15 years.
       Probably would be more effective for disseminating
            biological warfare agent than a ballistic missile.
       Would avoid missile defenses.

        The requirements for missile delivery of WMD impose additional,
    stringent design requirements on the already difficult technical
    problem of designing such weapons. For example, initial indigenous
    nuclear weapon designs are likely to be too large and heavy for a
    modest-sized ballistic missile but still suitable for delivery by ship,
    truck, or even airplane. Furthermore, a country (or non-state actor) is
    likely to have only a few nuclear weapons, at least during the next 15
    years. Reliability of delivery would be a critical factor; covert
    delivery methods could offer reliability advantages over a missile. Not
    only would a country want the warhead to reach its target, it would
    want to avoid an accident with a WMD warhead at the missile-launch
    area. On the other hand, a ship sailing into a port could provide
    secure delivery to limited locations, and a nuclear detonation, either
    in the ship or on the dock, could achieve the intended purpose. An
    airplane, either manned or unmanned, could also deliver a nuclear
    weapon before any local inspection, and perhaps before landing.
    Finally, a nuclear weapon might also be smuggled across a border or
    brought ashore covertly.
        Foreign non-state actors, including some terrorist or extremist
    groups, have used, possessed, or are interested in weapons of mass
    destruction or the materials to build them. Most of these groups have
    threatened the United States or its interests. We cannot count on
    obtaining warning of all planned terrorist attacks despite the high
    priority we assign to this goal.
        Recent trends suggest the likelihood is increasing that a foreign
    group or individual will conduct a terrorist attack against U.S.
    interests using chemical agents or toxic industrial chemicals in an
    attempt to produce a significant number of casualties, damage
    infrastructure, or create fear among a population. Past terrorist
    events, such as the World Trade Center bombing and the Aum Shinrikyo
    chemical attack on the Tokyo subway system, demonstrated the
    feasibility and willingness to undertake an attack capable of producing
    massive casualties.
    Immediate Theater Missile Threats to U.S. Interests and Allies
        The proliferation of MRBMs--driven primarily by North Korean No
    Dong sales--has created an immediate, serious, and growing threat to
    U.S. forces, interests, and allies in the Middle East and Asia, and has
    significantly altered the strategic balances in the regions.

       Iran's flight test of its Shahab-3, which is based on the No
            Dong, and Indian and Pakistani missile and nuclear tests may
            fuel additional interest in MRBMs.
       Pakistan has M-11 SRBMs from China and Ghauri MRBMs from
            North Korea; we assess both may have a nuclear role.
       India has Prithvi I SRBMs and recently began testing the
            Agni II MRBM; we assess both may have a nuclear role.

        We judge that countries developing missiles view their regional
    concerns as one of the primary factors in tailoring their programs.
        They see their short- and medium-range missiles not only as
    deterrents but also as force-multiplying weapons of war, primarily with
    conventional weapons but with options for delivering biological,
    chemical, and eventually nuclear weapons.
    Penetration Aids and Countermeasures
        We assess that countries developing ballistic missiles would also
    develop various responses to U.S. theater and national defenses. Russia
    and China each have developed numerous countermeasures and probably are
    willing to sell the requisite technologies.

       Many countries, such as North Korea, Iran, and Iraq probably
            would rely initially on readily available technology--including
            separating RVs, spin-stabilized RVs, RV reorientation, radar
            absorbing material (RAM), booster fragmentation, low-power
            jammers, chaff, and simple (balloon) decoys--to develop
            penetration aids and countermeasures.
       These countries could develop countermeasures based on these
            technologies by the time they flight test their missiles.

        Foreign espionage and other collection efforts are likely to
    increase. China, for example, has been able to obtain significant
    nuclear weapons information from espionage, contact with scientists
    from the United States and other countries, publications and
    conferences, unauthorized media disclosures, and declassified U.S.
    weapons information. We assess that China, Iran, and others are
    targeting U.S. missile information as well.

        [Attachment.]

       Unclassified Report to Congress on the Acquisition of Technology
       Relating to Weapons of Mass Destruction and Advanced Conventional
                   Munitions, 1 January Through 30 June 1999

        The Director of Central Intelligence (DCI) hereby submits this
    report in response to a Congressionally directed action in Section 721
    of the FY 97 Intelligence Authorization Act, which requires:

              ``(a) Not later than 6 months after the date of the enactment
            of this Act, and every 6 months thereafter, the Director of
            Central Intelligence shall submit to Congress a report on
                      (1) the acquisition by foreign countries during the
                    preceding 6 months of dual-use and other technology
                    useful for the development or production of weapons of
                    mass destruction (including nuclear weapons, chemical
                    weapons, and biological weapons) and advanced
                    conventional munitions; and
                      (2) trends in the acquisition of such technology by
                    such countries.''

        At the DCI'S request, the DCI Nonproliferation Center (NPC) drafted
    this report and coordinated it throughout the Intelligence Community.
    As directed by Section 721, subsection (b) of the Act, it is
    unclassified. As such, the report does not present the details of the
    Intelligence Community's assessments of weapons of mass destruction and
    advanced conventional munitions programs that are available in other
    classified reports and briefings for the Congress.
                             acquisition by country
        As required by Section 721 of the FY 97 Intelligence Authorization
    Act, the following are summaries by country of acquisition activities
    (solicitations, negotiations, contracts, and deliveries) related to
    weapons of mass destruction (WMD) and advanced conventional weapons
    (ACW) that occurred from 1 Januaiy through 30 June 1999. We excluded
    countries that already have substantial WMD programs, such as China and
    Russia, as well as countries that demonstrated little WMD acquisition
    activity of concern.

    Iran
        Iran remains one of the most active countries seeking to acquire
    WMD and ACW technology from abroad. In doing so, Tehran is attempting
    to develop an indigenous capability to produce various types of
    weapons--nuclear, chemical, and biological--and their delivery systems.
    During the reporting period, Iran focused its efforts to acquire WMD-
    and ACW-related equipment, materials, and technology primarily on
    entities in Russia, China, North Korea and Western Europe.
        For the first half of 1999, entities in Russia and China continued
    to supply a considerable amount and a wide variety of ballistic
    missile-related goods and technology to Iran. Tehran is using these
    goods and technologies to support current production programs and to
    achieve its goal of becoming self-sufficient in the production of
    ballistic missiles. Iran already is producing Scud short-range
    ballistic missiles (SRBMs) and has built and publicly displayed
    prototypes for the Shahab-3 medium-range ballistic missile (MRBM),
    which had its initial flight test in July 1998 and probably has
    achieved ``emergency operational capability''--i.e., Tehran could
    deploy a limited number of the Shahab-3 prototype missiles in an
    operational mode during a perceived crisis situation. In addition,
    Iran's Defense Minister last year publicly acknowledged the development
    of the Shahab-4, originally calling it a more capable ballistic missile
    than the Shahab-3, but later categorizing it as solely a space launch
    vehicle with no military applications. Iran's Defense Minister also has
    publicly mentioned plans for a ``Shahab 5.''
        For the reporting period, Tehran continued to seek considerable
    dual-use biotechnical equipment from entities in Russia and Western
    Europe, ostensibly for civilian uses. Iran began a biological warfare
    (BW) program during the Iran-Iraq war, and it may have some limited
    capability for BW deployment. Outside assistance is both important and
    difficult to prevent, given the dual-use nature of the materials, the
    equipment being sought, and the many legitimate end uses for these
    items.
        Iran, a Chemical Weapons Convention (CWC) party, already has
    manufactured and stockpiled chemical weapons, including blister, blood,
    and choking agents and the bombs and artillery shells for delivering
    them. During the first half of 1999, Tehran continued to seek
    production technology, expertise, and chemicals that could be used as
    precursor agents in its chemical warfare (CW) program from entities in
    Russia and China. It also acquired or attempted to acquire indirectly
    through intermediaries in other countries equipment and material that
    could be used to create a more advanced and self-sufficient CW
    infrastructure.
        Iran sought nuclear-related equipment, material, and technical
    expertise from a variety of sources, especially in Russia, during the
    first half of 1999. Work continues on the construction of a 1,000-
    megawatt nuclear power reactor in Bushehr, Iran, that will be subject
    to International Atomic Energy Agency (IAEA) safeguards. In addition,
    Russian entities continued to interact with Iranian research centers on
    various activities. These projects will help Iran augment its nuclear
    technology infrastructure, which in turn would be useful in supporting
    nuclear weapons research and development. The expertise and technology
    gained, along with the commercial channels and contacts established--
    even from cooperation that appears strictly civilian in nature--could
    be used to advance Iran's nuclear weapons research and developmental,
    program.
        Russia has committed to observe certain limits on its nuclear
    cooperation with Iran. For example, President Yel'tsin has stated
    publicly that Russia will not provide militarily useful nuclear
    technology to Iran. Beginning in January 1998, the Russian Government
    took a number of steps to increase its oversight of entities involved
    in dealings with Iran and other states of proliferation concern. In
    1999, it pushed a new export control law through the Duma. Russian
    firms, however, faced economic pressures to circumvent these controls
    and did so in some cases. The Russian Government, moreover, failed in
    some cases regarding Iran to enforce its export controls. Following
    repeated warnings, the U.S. Government in January 1999 imposed
    administrative measures against Russian entities that had engaged in
    nuclear- and missile-related cooperation with Iran. The measures
    imposed on these and other Russian entities (which were identified in
    1998) remain in effect.
        China pledged in October 1997 not to engage in any new nuclear
    cooperation with Iran but said it would complete cooperation on two
    ongoing nuclear projects, a small research reactor and a zirconium
    production facility at Esfahan that Iran will use to produce cladding
    for reactor fuel. The pledge appears to be holding. As a party to the
    Nuclear Nonproliferation Treaty (NPT), Iran is required to apply IAEA
    safeguards to nuclear fuel, but safeguards are not required for the
    zirconium plant or its products.
        Iran is attempting to establish a complete nuclear fuel cycle for
    its civilian energy program. In that guise, it seeks to obtain whole
    facilities, such as a uranium conversion facility, that, in fact, could
    be used in any number of ways in support of efforts to produce fissile
    material needed for a nuclear weapon. Despite international efforts to
    curtail the flow of critical technologies and equipment, Tehran
    continues to seek fissile material and technology for weapons
    development and has set up an elaborate system of military and civilian
    organizations to support its effort.

    Iraq
        Since Operation Desert Fox in December 1998, Baghdad has refused to
    allow United Nations inspectors into Iraq as required by Security
    Council Resolution 687. As a result, there have been no UN inspections
    during this reporting period, and the automated video monitoring system
    installed by the UN at known and suspect WMD facilities in Iraq has
    been dismantled by the Iraqis. Having lost this on-the-ground access,
    it is difficult for the UN or the U.S. to accurately assess the current
    state of Iraq's WMD programs.
        Since the Gulf war, Iraq has rebuilt key portions of its chemical
    production infrastructure for industrial and commercial use, as well as
    its missile production facilities. It has attempted to purchase
    numerous dual-use items for, or under the guise of, legitimate civilian
    use. This equipment--in principle subject to UN scrutiny--also could be
    diverted for WMD purposes. Following Desert Fox, Baghdad again
    instituted a reconstruction effort on those facilities destroyed by the
    U.S. bombing, to include several critical missile production complexes
    and former dual-use CW production facilities. In addition, it appears
    to be installing or repairing dual-use equipment at CW-related
    facilities. Some of these facilities could be converted fairly quickly
    for production of CW agents.
        The United Nations Special Commission on Iraq (UNSCOM) reported to
    the Security Council in December 1998 that Iraq continued to withhold
    information related to its CW and BW programs. For example, Baghdad
    seized from UNSCOM inspectors an Air Force document discovered by
    UNSCOM that indicated that Iraq had not consumed as many CW munitions
    during the Iran-Iraq War in the 1980s as declared by Baghdad. This
    discrepancy indicates that Iraq may have an additional 6,000 CW
    munitions hidden. This intransigence on the part of Baghdad ultimately
    led to the Desert Fox bombing by the U.S.
        We do not have any direct evidence that Iraq has used the period
    since Desert Fox to reconstitute its WMD programs, although given its
    past behavior, this type of activity must be regarded as likely. The
    United Nations assesses that Baghdad has the capability to reinitiate
    both its CW and BW programs within a few weeks to months, but without
    an inspection monitoring program, it is difficult to determine if Iraq
    has done so.
        Iraq has continued to work on the two SRBM systems authorized by
    the United Nations: the liquid-propellant Al-Samoud, and the solid-
    propellant Ababil-100. The Al-Samoud is essentially a scaled-down Scud,
    and the program allows Baghdad to develop technological improvements
    that could be applied to a longer range missile program. We believe
    that the Al-Samoud missile, as designed, is capable of exceeding the
    UN-permitted 150-km-range restriction with a potential operational
    range of about 180 kilometers. Personnel previously involved with the
    Condor II/Badr-2000 missile--which was largely destroyed during the
    Gulf war and eliminated by UNSCOM--are working on the Ababil-100
    program. Once economic sanctions against Iraq are lifted, Baghdad
    probably will begin converting these efforts into longer range missile
    systems, unless restricted by future UN monitoring.

    North Korea
        P'yongyang continues to acquire raw materials from out-of-country
    entities to produce WMD and ballistic missiles. During the reporting
    period, North Korea obtained raw materials for its ballistic missile
    programs from various foreign sources, especially from firms in China.
    North Korea produces and is capable of using a wide variety of chemical
    and possibly biological agents, as well as their delivery means.
        During the first half of 1999, P'yongyang sought to procure
    technology worldwide that could have applications in its nuclear
    program, but we do not know of any procurement directly linked to the
    nuclear weapons program. We assess that North Korea has produced enough
    plutonium for at least one, and possibly two, nuclear weapons. The
    United States and North Korea are nearing completion on the joint
    project of canning spent fuel from the Yongbyon complex for long-term
    storage and ultimate shipment out of the North in accordance with the
    1994 Agreed Framework. That reactor fuel contains enough plutonium for
    several more weapons.
        During this reporting period, P'yongyang also attempted to obtain
    advanced conventional weapons and related technologies such as aircraft
    electronics and spare parts from several countries, including
    Kazakhstan.

    Libya
        Despite UN sanctions, which were still in effect for the first half
    of 1999, Libya continued to obtain ballistic missile-related equipment,
    materials, technology, and expertise from foreign sources. Outside
    assistance is critical to keeping its ballistic missile development
    programs from becoming moribund.
        Libya remains heavily dependent on foreign suppliers for precursor
    chemicals and other key CW-related equipment. UN sanctions continued to
    severely limit that support during the first half of 1999. Still,
    Tripoli has not given up its goal of establishing its own offensive CW
    capability and continues to pursue an indigenous production capability
    for the weapons.
        In the past, Libya has sought to obtain major weapon systems, spare
    parts, and other support for its military forces from traditional
    sources in the former Soviet Union (FSU) and Eastern Europe, as well as
    from Iran. However, it appears Tripoli sought to procure only a limited
    amount of advanced conventional technology during the first half of
    1999.

    Syria
        Syria sought CW-related precursors and expertise from foreign
    sources during the reporting period. Damascus already has a stockpile
    of the nerve agent sarin and apparently is trying to develop more toxic
    and persistent nerve agents. Syria remains dependent on foreign sources
    for key elements of its CW program, including precursor chemicals and
    key production equipment.
        During the first half of 1999, Damascus continued work on
    establishing a solid-propellant rocket motor development and production
    capability with help from outside countries such as Iran. Foreign
    equipment and assistance to its liquid-propellant missile program,
    primarily from Russian entities, but also from firms in China and North
    Korea, also have been and will continue to be essential for Syria's
    effort. Damascus also continued its efforts to assemble--probably with
    considerable North Korean assistance--liquid-fueled Scud C missiles.
        In addition, sales of ACW to Syria continued, albeit at a lesser
    pace, during this reporting period. The vast majority of it's arsenal
    consists of weapons from the FSU. Russia in particular wants to keep
    its predominant position as the key supplier of arms to Damascus.

    Sudan
        During the reporting period, Sudan sought to acquire a variety of
    military equipment from various sources. The shopping list included
    helicopters and parts, unmanned aerial vehicles, tanks, antitank guided
    missiles, and numerous types of ammunition. Khartoum is seeking older,
    less expensive weapons that nonetheless are advanced compared with the
    capabilities of the weapons possessed by its opponents and their
    supporters in neighboring countries in the long-running civil war.
        In the WMD arena, Sudan has been developing the capability to
    produce chemical weapons for many years. In this pursuit, it has
    obtained help from entities in other countries, principally Iraq. Given
    its history in developing CW and its close relationship with Iraq,
    Sudan may be interested in a BW program as well.

    India
        While striving to achieve independence from foreign suppliers,
    India's ballistic missile programs still benefited from the acquisition
    of foreign equipment and technology. India sought items for these
    programs during the reporting period primarily from Russia: New Delhi
    successfully flight-tested its newest MRBM, the Agni 2, in April 1999
    after months of preparations.
        India continues to pursue the development of nuclear weapons, and
    its underground nuclear tests in May 1998 were a significant milestone.
    (The U.S. imposed sanctions against India as a result of these tests.)
    The acquisition of foreign equipment could benefit New Delhi in its
    efforts to develop and produce more sophisticated nuclear weapons.
    India obtained some foreign nuclear-related assistance during the first
    half of 1999 from a variety of sources worldwide, including in Russia
    and Western Europe.

    Pakistan
        Pakistan acquired a considerable amount of nuclear-related and
    dual-use equipment and materials from various sources--principally in
    the FSU and Western Europe--during the first half of 1999. Islamabad
    has a well-developed nuclear weapons program, as evidenced by its first
    nuclear weapons tests in late May 1998. (The U.S. imposed sanctions
    against Pakistan as a result of these tests.) Acquisition of nuclear-
    related goods from foreign sources will be important if Pakistan
    chooses to develop more advanced nuclear weapons. China, which has
    provided extensive support in the past to Islamabad's WMD programs, in
    May 1996 promised to stop assistance to unsafeguarded nuclear
    facilities--but we cannot rule out ongoing contacts.
        Chinese and North Korean entities continued to provide assistance
    to Pakistan's ballistic missile program during the first half of 1999.
    Such assistance is critical for Islamabad's efforts to produce
    ballistic missiles. In April 1998, Pakistan flight-tested the Ghauri
    MRBM, which is based on North Korea's No Dong missile. Also in April
    1998, the U.S. imposed sanctions against Pakistani and North Korean
    entities for their role in transferring Missile Technology Control
    Regime Category I ballistic missile-related technology. In April 1999,
    Islamabad flight-tested another Ghauri MRBM and the Shaheen-1 SRBM.

    Egypt
        Egypt continues its effort to develop and produce ballistic
    missiles with the assistance of North Korea. This activity is part of a
    long-running program of ballistic missile cooperation between these two
    countries.
                                 key suppliers
    China
        China joined the Zangger Committee--which clarifies certain export
    obligations under the NPT--in October 1997 and participated in the
    Zangger Conversion Technology Holders meeting in February 1999. This
    was China's first opportunity to participate in a discussion of this
    type.
        China pledged in late 1997 not to engage in any new nuclear
    cooperation with Iran but said it would complete work associated with
    two remaining nuclear projects--a small research reactor and a
    zirconium production facility--in a relatively short period of time.
    The Intelligence Community will continue to monitor carefully Chinese
    nuclear cooperation with Iran.
        During the reporting period, firms in China provided missile-
    related items, raw materials, and/or assistance to several countries of
    proliferation concern--such as Iran. China also was a supplier of ACW
    to Iran through the first half of 1999.
        Prior to the reporting period, Chinese firms had supplied CW-
    related production equipment and technology to Iran. The U.S. sanctions
    imposed in May 1997 on seven Chinese entities for knowingly and
    materially contributing to Iran's CW program remain in effect. In June
    1998, China announced that it had expanded its chemical export controls
    to include 10 of the 20 Australia Group chemicals not listed on the CWC
    schedules.
        China has provided extensive support in the past to Pakistan's WMD
    and ballistic missile programs, and some ballistic missile assistance
    continues. In May 1996, Beijing promised to stop assistance to
    unsafeguarded nuclear facilities, but we cannot preclude ongoing
    contacts. China's involvement with Pakistan will continue to be
    monitored closely.

    Russia
        Russian entities during the reporting period continued to supply a
    variety of ballistic missile-related goods and technical know-how to
    Iran and were expanding missile-related assistance to Syria and India.
    For example, Iran's earlier success in gaining technology and materials
    from Russian companies accelerated Iranian development of the Shahab-3
    MRBM, which was first flight-tested in July 1998. Russian entities
    during the first six months of 1999 have provided substantial missile-
    related technology, training, and expertise to Iran that almost
    certainly will continue to accelerate Iranian efforts to build new
    indigenous ballistic missile systems.
        During the first half of 1999, Russia also remained a key supplier
    for civilian nuclear programs in Iran. With respect to Iran's nuclear
    infrastructure, Russian assistance enhances Iran's ability to support a
    nuclear weapons development effort. By its very nature, even the
    transfer of civilian technology may be of use in Iran's nuclear weapons
    program. In addition, Russia supplied India with material for its
    civilian nuclear program during this reporting period.
        Russian entities remain a significant source of biotechnology and
    chemicals for Iran. Russia's world-leading expertise in biological and
    chemical weapons would make it an attractive target for Iranians
    seeking technical information and training on BW and CW agent
    production processes.
        Russia also was an important source of conventional weapons and
    spare parts for Iran, which is seeking to upgrade and replace its
    existing conventional weapons inventories.
        Following intense and continuing engagement with the U.S., Russian
    officials took some positive steps to enhance oversight of Russian
    entities and their interaction with countries of concern. Russia has
    reiterated previous commitments to observe certain limits on its
    nuclear cooperation with Iran, such as not providing militarily useful
    nuclear technology, although--as indicated above--Russia continues to
    provide Iran with nuclear technology that could be applied to Iran's
    weapons program. President Yel'tsin in July 1999 signed a federal
    export control law, which formally makes WMD-related transfers a
    violation of law and codifies several existing decrees--including
    catch-all controls--yet may lessen punishment for violators.
        Despite these decrees, the government's commitment, willingness,
    and ability to curb proliferation-related transfers remain uncertain.
    Moreover, economic conditions in Russia continued to deteriorate,
    putting more pressure on Russian entities to circumvent export
    controls. Despite some examples of restraint, Russian businesses
    continue to be major suppliers of WMD equipment, materials, and
    technology to Iran. Monitoring Russian proliferation behavior,
    therefore, will remain a very high priority.

    North Korea
        Throughout the first half of 1999, North Korea continued to export
    ballistic missile-related equipment and missile components, materials
    and technical expertise to countries in the Middle East and Africa.
    P'yongyang attaches a high priority to the development and sale of
    ballistic missiles, equipment, and related technology. Exports of
    ballistic missiles and related technology are one of the North's major
    sources of hard currency.

    Western Nations
        As was the case in 1998, entities in Western nations in early 1999
    were not as important sources for WMD-related goods and materials as in
    past years. Increasingly rigorous and effective export controls and
    cooperation among supplier countries have led foreign WMD programs to
    look elsewhere for many controlled dual-use goods. Machine tools, spare
    parts for dual-use equipment, and widely available materials and
    scientific equipment and specialty metals were the most common items
    sought.
                                     trends
        As in previous reports, countries determined to maintain WMD
    programs over the long term have been placing significant emphasis on
    insulating their programs against interdiction and disruption, trying
    to reduce their dependence on imports by developing indigenous
    production capabilities. Although these capabilities may not always be
    a good substitute for foreign imports--particularly for more advanced
    technologies--in many cases they may prove to be adequate.
                                   APPENDIX 3

      TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNION OF SOVIET
    SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-BALLISTIC MISSILE SYSTEMS

    Signed at Moscow May 26, 1972
    Ratification advised by U.S. Senate August 3, 1972
    Ratified by U.S. President September 30, 1972
    Proclaimed by U.S. President October 3, 1972
    Instruments of ratification exchanged October 3, 1972
    Entered into force October 3, 1972

          The United States of America and the Union of Soviet Socialist
    Republics, hereinafter referred to as the Parties,
          Proceeding from the premise that nuclear war would have
    devastating consequences for all mankind,
          Considering that effective measures to limit anti-ballistic
    missile systems would be a substantial factor in curbing the race in
    strategic offensive arms and would lead to a decrease in the risk of
    outbreak of war involving nuclear weapons,
          Proceeding from the premise that the limitation of anti-ballistic
    missile systems, as well as certain agreed measures with respect to the
    limitation of strategic offensive arms, would contribute to the
    creation of more favorable conditions for further negotiations on
    limiting strategic arms,
          Mindful of their obligations under Article VI of the Treaty on
    the Non-Proliferation of Nuclear Weapons,
          Declaring their intention to achieve at the earliest possible
    date the cessation of the nuclear arms race and to take effective
    measures toward reductions in strategic arms, nuclear disarmament, and
    general and complete disarmament,
          Desiring to contribute to the relaxation of international tension
    and the strengthening of trust between States,
          Have agreed as follows:

                                   Article I

          1. Each Party undertakes to limit anti-ballistic missile (ABM)
    systems and to adopt other measures in accordance with the provisions
    of this Treaty.
          2. Each Party undertakes not to deploy ABM systems for a defense
    of the territory of its country and not to provide a base for such a
    defense, and not to deploy ABM systems for defense of an individual
    region except as provided for in Article III of this Treaty.

                                   Article II

          1. For the purpose of this Treaty an ABM system is a system to
    counter strategic ballistic missiles or their elements in flight
    trajectory, currently consisting of:

            (a) ABM interceptor missiles, which are interceptor missiles
            constructed and deployed for an ABM role, or of a type tested
            in an ABM mode;

            (b) ABM launchers, which are launchers constructed and deployed
            for launching ABM interceptor missiles; and

            (c) ABM radars, which are radars constructed and deployed for
            an ABM role, or of a type tested in an ABM mode.

          2. The ABM system components listed in paragraph 1 of this
    Article include those which are:

            (a) operational;

            (b) under construction;

            (c) undergoing testing;

            (d) undergoing overhaul, repair or conversion; or

            (e) mothballed.

                                  Article III

          Each Party undertakes not to deploy ABM systems or their
    components except that:

            (a) within one ABM system deployment area having a radius of
            one hundred and fifty kilometers and centered on the Partys
            national capital, a Party may deploy: (1) no more than one
            hundred ABM launchers and no more than one hundred ABM
            interceptor missiles at launch sites, and (2) ABM radars within
            no more than six ABM radar complexes, the area of each complex
            being circular and having a diameter of no more than three
            kilometers; and

            (b) within one ABM system deployment area having a radius of
            one hundred and fifty kilometers and containing ICBM silo
            launchers, a Party may deploy: (1) no more than one hundred ABM
            launchers and no more than one hundred ABM interceptor missiles
            at launch sites, (2) two large phased-array ABM radars
            comparable in potential to corresponding ABM radars operational
            or under construction on the date of signature of the Treaty in
            an ABM system deployment area containing ICBM silo launchers,
            and (3) no more than eighteen ABM radars each having a
            potential less than the potential of the smaller of the above-
            mentioned two large phased-array ABM radars.

                                   Article IV

          The limitations provided for in Article III shall not apply to
    ABM systems or their components used for development or testing, and
    located within current or additionally agreed test ranges. Each Party
    may have no more than a total of fifteen ABM launchers at test ranges.

                                   Article V

          1. Each Party undertakes not to develop, test, or deploy ABM
    systems or components which are sea-based, air-based, space-based, or
    mobile land-based.
          2. Each Party undertakes not to develop, test or deploy ABM
    launchers for launching more than one ABM interceptor missile at a time
    from each launcher, not to modify deployed launchers to provide them
    with such a capacity, not to develop, test, or deploy automatic or
    semi-automatic or other similar systems for rapid reload of ABM
    launchers.

                                   Article VI

          To enhance assurance of the effectiveness of the limitations on
    ABM systems and their components provided by the Treaty, each Party
    undertakes:

            (a) not to give missiles, launchers, or radars, other than ABM
            interceptor 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; and

            (b) not to deploy in the future radars for early warning of
            strategic ballistic missile attack except at locations along
            the periphery of its national territory and oriented outward.

                                  Article VII

          Subject to the provisions of this Treaty, modernization and
    replacement of ABM systems or their components may be carried out.

                                  Article VIII

          ABM systems or their components in excess of the numbers or
    outside the areas specified in this Treaty, as well as ABM systems or
    their components prohibited by this Treaty, shall be destroyed or
    dismantled under agreed procedures within the shortest possible agreed
    period of time.

                                   Article IX

          To assure the viability and effectiveness of this Treaty, each
    Party undertakes not to transfer to other States, and not to deploy
    outside its national territory, ABM systems or their components limited
    by this Treaty.

                                   Article X

          Each Party undertakes not to assume any international obligations
    which would conflict with this Treaty.

                                   Article XI

          The Parties undertake to continue active negotiations for
    limitations on strategic offensive arms.

                                  Article XII

          1. For the purpose of providing assurance or compliance with the
    provisions of this Treaty, each Party shall use national technical
    means of verification at its disposal in a manner consistent with
    generally recognized principles of international law.
          2. Each Party undertakes not to interfere with the national
    technical means of verification of the other Party operating in
    accordance with paragraph 1 of this Article.
          3. Each Party undertakes not to use deliberate concealment
    measures which impede verification by national technical means of
    compliance with the provisions of this Treaty. This obligation shall
    not require changes in current construction, assembly, conversion, or
    overhaul practices.

                                  Article XIII

          1. To promote the objectives and implementation of the provisions
    of this Treaty, the Parties shall establish promptly a Standing
    Consultative Commission, within the framework of which they will:

            (a) consider questions concerning compliance with the
            obligations assumed and related situations which may be
            considered ambiguous;

            (b) provide on a voluntary basis such information as either
            Party considers necessary to assure confidence in compliance
            with the obligations assumed;

            (c) consider questions involving unintended interference with
            national technical means of verification;

            (d) consider possible changes in the strategic situation which
            have a bearing on the provisions of this Treaty;

            (e) agree upon procedures and dates for destruction or
            dismantling of ABM systems or their components in cases
            provided for by the provisions of this Treaty;

            (f) consider, as appropriate, possible proposals for further
            increasing the viability of this Treaty; including proposals
            for amendments in accordance with the provisions of this
            Treaty;

            (g) consider, as appropriate, proposals for further measures
            aimed at limiting strategic arms.

          2. The Parties through consultation shall establish, and may
    amend as appropriate, Regulations for the Standing Consultative
    Commission governing procedures, composition and other relevant
    matters.

                                  Article XIV

          1. Each Party may propose amendments to this Treaty. Agreed
    amendments shall enter into force in accordance with the procedures
    governing the entry into force of this Treaty.
          2. Five years after entry into force of this Treaty, and at five-
    year intervals thereafter, the Parties shall together conduct a review
    of this Treaty.

                                   Article XV

          1. This Treaty shall be of unlimited duration.
          2. Each Party shall, in exercising its national sovereignty, have
    the right to withdraw from this Treaty if it decides that extraordinary
    events related to the subject matter of this Treaty have jeopardized
    its supreme interests. It shall give notice of its decision to the
    other Party six months prior to withdrawal from the Treaty. Such notice
    shall include a statement of the extraordinary events the notifying
    Party regards as having jeopardized its supreme interests.

                                  Article XVI

          1. This Treaty shall be subject to ratification in accordance
    with the constitutional procedures of each Party. The Treaty shall
    enter into force on the day of the exchange of instruments of
    ratification.
          2. This Treaty shall be registered pursuant to Article 102 of the
    Charter of the United Nations.

          DONE at Moscow on May 26, 1972, in two copies, each in the
    English and Russian languages, both texts being equally authentic.

    for the united states of america:
    richard nixon
    President of the United States of America

    for the union of soviet socialist republics:
    l. i. brezhnev
    General Secretary of the Central Committee of the CPSU
                                     ______

      AGREED STATEMENTS, COMMON UNDERSTANDINGS, AND UNILATERAL STATEMENTS
      REGARDING TILE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
    UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-BALLISTIC
                                    MISSILES

                              1. Agreed Statements

    The document set forth below was agreed upon and initialed by the Heads
    of the Delegations on May 26, 1972 (letter designations added):

    Agreed Statements Regarding the Treaty Between the United States of
    America and the Union of Soviet Socialist Republics on the Limitation
    of Anti-Ballistic Missile Systems

                                      [A]

    The Parties understand that, in addition to the ABM radars which may be
    deployed in accordance with subparagraph (a) of Article III of the
    Treaty, those non-phased-array ABM radars operational on the date of
    signature of the Treaty within the ABM system deployment area for
    defense of the national capital may be retained.

                                      [B]

    The Parties understand that the potential (the product of mean emitted
    power in watts and antenna area in square meters) of the smaller of the
    two large phased-array ABM radars referred to in subparagraph (b) of
    Article III of the Treaty is considered for purposes of the Treaty to
    be three million.

                                      [C]

    The Parties understand that the center of the ABM system deployment
    area centered on the national capital and the center of the ABM system
    deployment area containing ICBM silo launchers for each Party shall be
    separated by no less than thirteen hundred kilometers.

                                      [D]

    In order to insure fulfillment of the obligation not to deploy ABM
    systems and their components except as provided in Article III of the
    Treaty, the Parties agree that in the event ABM systems based on other
    physical principles and including components capable of substituting
    for ABM interceptor missiles, ABM launchers, or ABM radars are created
    in the future, specific limitations on such systems and their
    components would be subject to discussion in accordance with Article
    XIII and agreement in accordance with Article XIV of the Treaty.

                                      [E]

    The Parties understand that Article V of the Treaty includes
    obligations not to develop, test or deploy ABM interceptor missiles for
    the delivery by each ABM interceptor missile of more than one
    independently guided warhead.

                                      [F]

    The Parties agree not to deploy phased-array radars having a potential
    (the product of mean emitted power in watts and antenna area in square
    meters) exceeding three million, except as provided for in Articles
    III, IV, and VI of the Treaty, or except for the purposes of tracking
    objects in outer space or for use as national technical means of
    verification.

                                      [G]

    The Parties understand that Article IX of the Treaty includes the
    obligation of the United States and the USSR not to provide to other
    States technical descriptions or blueprints specially worked out for
    the construction of ABM systems and their components limited by the
    Treaty.

                            2. Common Understandings

    Common understanding of the Parties on the following matters was
    reached during the negotiations:

    A. Location of ICBM Defenses

    The U.S. Delegation made the following statement on May 26, 1972:

    Article III of the ABM Treaty provides for each side one ABM system
    deployment area centered on its national capital and one ABM system
    deployment area containing ICBM silo launchers. The two sides have
    registered agreement on the following statement: ``The Parties
    understand that the center of the ABM system deployment area centered
    on the national capital and the center of the ABM system deployment
    area containing ICBM silo launchers for each Party shall be separated
    by no less than thirteen hundred kilometers.'' In this connection, the
    U.S. side notes that its ABM system deployment area for defense of ICBM
    silo launchers, located west of the Mississippi River, will be centered
    in the Grand Forks ICBM silo launcher deployment area. (See Agreed
    Statement [C].)

    B. ABM Test Ranges

    The U.S. Delegation made the following statement on April 26, 1972:

    Article IV of the ABM Treaty provides that ``the limitations provided
    for in Article III shall not apply to ABM systems or their components
    used for development or testing, and located within current or
    additionally agreed test ranges.'' We believe it would be useful to
    assure that there is no misunderstanding as to current ABM test ranges.
    It is our understanding that ABM test ranges encompass the area within
    which ABM components are located for test purposes. The current U.S.
    ABM test ranges are at White Sands, New Mexico, and at Kwajalein Atoll,
    and the current Soviet ABM test range is near Sary Shagan in
    Kazakhstan. We consider that non-phased array radars of types used for
    range safety or instrumentation purposes may be located outside of ABM
    test ranges. We interpret the reference in Article IV to ``additionally
    agreed test ranges'' to mean that ABM components will not be located at
    any other test ranges without prior agreement between our Governments
    that there will be such additional ABM test ranges.

    On May 5, 1972, the Soviet Delegation stated that there was a common
    understanding on what ABM test ranges were, that the use of the types
    of non-ABM radars for range safety or instrumentation was not limited
    under the Treaty, that the reference in Article IV to ``additionally
    agreed'' test ranges was sufficiently clear, and that national means
    permitted identifying current test ranges.

    C. Mobile ABM Systems

    On January 29, 1972, the U.S. Delegation made the following statement:

    Article V(1) of the Joint Draft Text of the ABM Treaty includes an
    undertaking not to develop, test, or deploy mobile land-based ABM
    systems and their components. On May 5, 1971, the U.S. side indicated
    that, in its view, a prohibition on development of mobile ABM systems
    and components would rule out the deployment of ABM launchers and
    radars which were not permanent fixed types. At that time, we asked for
    the Soviet view of this interpretation. Does the Soviet side agree with
    the U.S. sides interpretation put forward on May 5, 1971?

    On April 13, 1972, the Soviet Delegation said there is a general common
    understanding on this matter.

    D. Standing Consultative Commission

    Ambassador Smith made the following statement on May 22, 1972:

    The United States proposes that the sides agree that, with regard to
    initial implementation of the ABM Treatys Article XIII on the Standing
    Consultative Commission (SCC) and of the consultation Articles to the
    Interim Agreement on offensive arms and the Accidents Agreement,\1\
    agreement establishing the SCC will be worked out early in the follow-
    on SALT negotiations; until that is completed, the following
    arrangements will prevail: when SALT is in session, any consultation
    desired by either side under these Articles can be carried out by the
    two SALT Delegations; when SALT is not in session, ad hoc arrangements
    for any desired consultations under these Articles may be made through
    diplomatic channels.
    ---------------------------------------------------------------------------
        \1\ See Article 7 of Agreement to Reduce the Risk of Outbreak of
    Nuclear War Between the United States of America and the Union of
    Soviet Socialist Republics, signed September 30, 1971.

    Minister Semenov replied that, on an ad referendum basis, he could
    ---------------------------------------------------------------------------
    agree that the U.S. statement corresponded to the Soviet understanding.

    E. Standstill

    On May 6, 1972, Minister Semenov made the following statement:

    In an effort to accommodate the wishes of the U.S. side, the Soviet
    Delegation is prepared to proceed on the basis that the two sides will
    in fact observe the obligations of both the Interim Agreement and the
    ABM Treaty beginning from the date of signature of these two documents.

    In reply, the U.S. Delegation made the following statement on May 20,
    1972:

    The United States agrees in principle with the Soviet statement made on
    May 6 concerning observance of obligations beginning from date of
    signature but we would like to make clear our understanding that this
    means that, pending ratification and acceptance, neither side would
    take any action prohibited by the agreements after they had entered
    into force. This understanding would continue to apply in the absence
    of notification by either signatory of its intention not to proceed
    with ratification or approval.

    The Soviet Delegation indicated agreement with the U.S. statement.

                            3. Unilateral Statements

    The following noteworthy unilateral statements were made during the
    negotiations by the United States Delegation:

    A. Withdrawal from the ABM Treaty

    On May 9, 1972, Ambassador Smith made the following statement:

    The U.S. Delegation has stressed the importance the U.S. Government
    attaches to achieving agreement on more complete limitations on
    strategic offensive arms, following agreement on an ABM Treaty and on
    an Interim Agreement on certain measures with respect to the limitation
    of strategic offensive arms. The U.S. Delegation believes that an
    objective of the follow-on negotiations should be to constrain and
    reduce on a long-term basis threats to the survivability of our
    respective strategic retaliatory forces. The USSR Delegation has also
    indicated that the objectives of SALT would remain unfulfilled without
    the achievement of an agreement providing for more complete limitations
    on strategic offensive arms. Both sides recognize that the initial
    agreements would be steps toward the achievement of complete
    limitations on strategic arms. If an agreement providing for more
    complete strategic offensive arms limitations were not achieved within
    five years, U.S. supreme interests could be jeopardized. Should that
    occur, it would constitute a basis for withdrawal from the ABM Treaty.
    The United States does not wish to see such a situation occur, nor do
    we believe that the USSR does. It is because we wish to prevent such a
    situation that we emphasize the importance the U.S. Government attaches
    to achievement of more complete limitations on strategic offensive
    arms. The U.S. Executive will inform the Congress, in connection with
    Congressional consideration of the ABM Treaty and the Interim
    Agreement, of this statement of the U.S. position.

    B. Tested in an ABM Mode

    On April 7, 1972, the U.S. Delegation made the following statement:

    Article II of the Joint Text Draft uses the term ``tested in an ABM
    mode,'' in defining ABM components, and Article VI includes certain
    obligations concerning such testing. We believe that the sides should
    have a common understanding of this phrase. First, we would note that
    the testing provisions of the ABM Treaty are intended to apply to
    testing which occurs after the date of signature of the Treaty, and not
    to any testing which may have occurred in the past. Next, we would
    amplify the remarks we have made on this subject during the previous
    Helsinki phase by setting forth the objectives which govern the U.S.
    view on the subject, namely, while prohibiting testing of non-ABM
    components for ABM purposes: not to prevent testing of ABM components,
    and not to prevent testing of non-ABM components for non-ABM purposes.
    To clarify our interpretation of ``tested in an ABM mode,'' we note
    that we would consider a launcher, missile or radar to be ``tested in
    an ABM mode'' if, for example, any of the following events occur: (1) a
    launcher is used to launch an ABM interceptor missile, (2) an
    interceptor missile is flight tested against a target vehicle which has
    a flight trajectory with characteristics of a strategic ballistic
    missile flight trajectory, or is flight tested in conjunction with the
    test of an ABM interceptor missile or an ABM radar at the same test
    range, or is flight tested to an altitude inconsistent with
    interception of targets against which air defenses are deployed, (3) a
    radar makes measurements on a cooperative target vehicle of the kind
    referred to in item (2) above during the reentry portion of its
    trajectory or makes measurements in conjunction with the test of an ABM
    interceptor missile or an ABM radar at the same test range. Radars used
    for purposes such as range safety or instrumentation would be exempt
    from application of these criteria.

    C. No-Transfer Article of ABM Treaty

    On April 18, 1972, the U.S. Delegation made the following statement:

    In regard to this Article [IX], I have a brief and I believe self-
    explanatory statement to make. The U.S. side wishes to make clear that
    the provisions of this Article do not set a precedent for whatever
    provision may be considered for a Treaty on Limiting Strategic
    Offensive Arms. The question of transfer of strategic offensive arms is
    a far more complex issue, which may require a different solution.

    D. No Increase in Defense of Early Warning Radars

    On July 28, 1970, the U.S. Delegation made the following statement:

    Since Hen House radars [Soviet ballistic missile early warning radars]
    can detect and track ballistic missile warheads at great distances,
    they have a significant ABM potential. Accordingly, the United States
    would regard any increase in the defenses of such radars by surface-to-
    air missiles as inconsistent with an agreement.
                                     ______

    MEMORANDUM OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE UNITED STATES
        OF AMERICA AND THE GOVERNMENT OF THE UNION OF SOVIET SOCIALIST
       REPUBLICS REGARDING THE ESTABLISHMENT OF A STANDING CONSULTATIVE
                                   COMMISSION

                                       I.

          The Government of the United States of America and the Government
    of the Union of Soviet Socialist Republics hereby establish a Standing
    Consultative Commission.

                                      II.

          The Standing Consultative Commission shall promote the objectives
    and implementation of the provisions of the Treaty between the USA and
    the USSR on the Limitation of Anti-Ballistic Missile Systems of May 26,
    1972, the Interim Agreement between the USA and the USSR on Certain
    Measures with Respect to the Limitation of Strategic Offensive Arms of
    May 26, 1972, and the Agreement on Measures to Reduce the Risk of
    Outbreak of Nuclear War between the USA and the USSR of September 30,
    1971, and shall exercise its competence in accordance with the
    provisions of Article XIII of said Treaty, Article VI of said Interim
    Agreement, and Article 7 of said Agreement on Measures.

                                      III.

          Each Government shall be represented on the Standing Consultative
    Commission by a Commissioner and a Deputy Commissioner, assisted by
    such staff as it deems necessary.

                                      IV.

          The Standing Consultative Commission shall hold periodic sessions
    on dates mutually agreed by the Commissioners but no less than two
    times per year. Sessions shall also be convened as soon as possible,
    following reasonable notice, at the request of either Commissioner.

                                       V.

          The Standing Consultative Commission shall establish and approve
    Regulations governing procedures and other relevant matters and may
    amend them as it deems appropriate.

                                      VI.

          The Standing Consultative Commission will meet in Geneva. It may
    also meet at such other places as may be agreed.
          Done in Geneva, on December 21, 1972, in two copies, each in the
    English and Russian languages, both texts being equally authentic.

    For the Government                   For the Government
    of the                               of the
    United States of America             Union of the Soviet Socialist
                                             Republics

                                     ______

      PROTOCOL TO THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
    UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-BALLISTIC
                                MISSILE SYSTEMS

    Signed at Moscow July 3, 1974
    Ratification advised by U.S. Senate November 10, 1975
    Ratified by U.S. President March 19, 1976
    Instruments of ratification exchanged May 24, 1976
    Proclaimed by U.S. President July 6, 1976
    Entered into force May 24, 1976

          The United States of America and the Union of Soviet Socialist
    Republics, hereinafter referred to as the Parties,
          Proceeding from the Basic Principles of Relations between the
    United States of America and the Union of Soviet Socialist Republics
    signed on May 29, 1972,
          Desiring to further the objectives of the Treaty between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems signed on May 26,
    1972, hereinafter referred to as the Treaty,
          Reaffirming their conviction that the adoption of further
    measures for the limitation of strategic arms would contribute to
    strengthening international peace and security,
          Proceeding from the premise that further limitation of anti-
    ballistic missile systems will create more favorable conditions for the
    completion of work on a permanent agreement on more complete measures
    for the limitation of strategic offensive arms,
          Have agreed as follows:

                                   Article I

          1. Each Party shall be limited at any one time to a single area
    of the two provided in Article III of the Treaty for deployment of
    anti-ballistic missile (ABM) systems or their components and
    accordingly shall not exercise its right to deploy an ABM system or its
    components in the second of the two ABM system deployment areas
    permitted by Article III of the Treaty, except as an exchange of one
    permitted area for the other in accordance with Article II of this
    Protocol.
          2. Accordingly, except as permitted by Article II of this
    Protocol: the United States of America shall not deploy an ABM system
    or its components in the area centered on its capital, as permitted by
    Article III(a) of the Treaty, and the Soviet Union shall not deploy an
    ABM system or its components in the deployment area of intercontinental
    ballistic missile (ICBM) silo launchers as permitted by Article 111(b)
    of the Treaty.

                                   Article II

          1. Each Party shall have the right to dismantle or destroy its
    ABM system and the components thereof in the area where they are
    presently deployed and to deploy an ABM system or its components in the
    alternative area permitted by Article III of the Treaty, provided that
    prior to initiation of construction, notification is given in accord
    with the procedure agreed to in the Standing Consultative Commission,
    during the year beginning October 3, 1977, and ending October 2, 1978,
    or during any year which commences at five year intervals thereafter,
    those being the years of periodic review of the Treaty, as provided in
    Article XIV of the Treaty. This right may be exercised only once.
          2. Accordingly, in the event of such notice, the United States
    would have the right to dismantle or destroy the ABM system and its
    components in the deployment area of ICBM silo launchers and to deploy
    an ABM system or its components in an area centered on its capital, as
    permitted by Article III(a) of the Treaty, and the Soviet Union would
    have the right to dismantle or destroy the ABM system and its
    components in the area centered on its capital and to deploy an ABM
    system or its components in an area containing ICBM silo launchers, as
    permitted by Article III(b) of the Treaty.
          3. Dismantling or destruction and deployment of ABM systems or
    their components and the notification thereof shall be carried out in
    accordance with Article VIII of the ABM Treaty and procedures agreed to
    in the Standing Consultative Commission.

                                  Article III

          The rights and obligations established by the Treaty remain in
    force and shall be complied with by the Parties except to the extent
    modified by this Protocol. In particular, the deployment of an ABM
    system or its components within the area selected shall remain limited
    by the levels and other requirements established by the Treaty.

                                   Article IV

          This Protocol shall be subject to ratification in accordance with
    the constitutional procedures of each Party. It shall enter into force
    on the day of the exchange of instruments of ratification and shall
    thereafter be considered an integral part of the Treaty.

          DONE at Moscow on July 3, 1974, in duplicate, in the English and
    Russian languages, both texts being equally authentic.

    for the united states of america:
    richard nixon
    President of the United States of America

    for the union of soviet socialist republics:
    l.i. brezhnev
    General Secretary of the Central Committee of the CPSU

                                     ______

         PROTOCOL ON PROCEDURES GOVERNING REPLACEMENT, DISMANTLING OR
       DESTRUCTION, AND NOTIFICATION THEREOF, FOR ABM SYSTEMS AND THEIR
                                   COMPONENTS

          Pursuant to the provisions and in implementation of the Treaty
    between the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, and the Agreed Statements regarding that Treaty, the Parties
    thereto have within the framework of the Standing Consultative
    Commission agreed upon procedures governing replacement, dismantling or
    destruction, and notification thereof, for ABM systems and their
    components limited by that Treaty, as formulated in the Attachment
    hereto which constitutes an integral part of this Protocol.

              The Parties have also agreed on the following general
            guidelines:

              1. The attached Procedures shall apply only to systems or
            their components to be replaced and dismantled or destroyed
            pursuant to the provisions of the Treaty;
              2. Any replacement of ABM systems or their components shall
            be on the basis of Article VII of the Treaty and applicable
            Agreed Statements; dismantling or destruction of ABM systems or
            their components in excess of the numbers or outside the areas
            specified by the Treaty shall be on the basis of Article VIII
            of the Treaty and applicable Agreed Statements;
              3. Dismantling or destruction procedures for ABM systems or
            their components, related to implementation of the provisions
            of Article VII regarding replacement of those systems or their
            components and Article VIII of the Treaty, shall ensure that
            those systems or their components and facilities associated
            with those components, except for facilities at test ranges,
            would be put in a condition that precludes the possibility of
            their use for ABM purposes; shall ensure that reactivation of
            units dismantled or destroyed would be detectable by national
            technical means; shall be such that reactivation time of those
            units would not be substantially less than the time required
            for new construction; and shall preclude unreasonable delays in
            dismantling or destruction;
              4. Replacement and dismantling or destruction procedures
            shall be formulated separately for above-ground and silo ABM
            launchers and for ABM radars;
              5. Replacement and dismantling or destruction procedures
            shall ensure that adequate verification can be accomplished by
            national technical means in accordance with Article XII of the
            Treaty;
              6. After dismantling or destruction in accordance with the
            attached Procedures, facilities remaining at ABM launch or ABM
            radar sites may, at the discretion of the Parties, be used for
            purposes not inconsistent with the provisions of the Treaty and
            applicable Agreed Statements; and
              7. Through timely and appropriate procedures, the Parties
            shall notify each other of the number and type (above-ground or
            silo) of ABM launchers and of the number of ABM radars on which
            dismantling or destruction has been completed and is in
            process, and of the number of ABM launchers and ABM radars used
            for replacement.

          This Protocol and the attached Procedures shall enter into force
    upon signature of this Protocol and remain in force for the duration of
    the Treaty, and may be amended by the Standing Consultative Commission
    as it deems appropriate.

          DONE at Moscow on July 3, 1974, in duplicate, in the English and
    Russian languages, both texts being equally authentic.

    FOR THE UNITED STATES                FOR THE UNION OF SOVIET
    OF AMERICA:                          SOCIALIST REPUBLICS:
    Secretary of State                   Minister of Foreign Affairs
                                     ______

        SUPPLEMENTARY PROTOCOL TO THE PROTOCOL ON PROCEDURES GOVERNING
    REPLACEMENT, DISMANTLING OR DESTRUCTION, AND NOTIFICATION THEREOF, FOR
                ABM SYSTEMS AND THEIR COMPONENTS OF JULY 3, 1974

          Pursuant to the provisions and in implementation of the Treaty
    between the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, hereinafter referred to as the Treaty, the Agreed Statements
    regarding the Treaty, and the Protocol to the Treaty of July 3, 1974,
    the Parties thereto have, within the framework of the Standing
    Consultative Commission and in implementation of the provisions of the
    Protocol on Procedures Governing Replacement, Dismantling or
    Destruction, and Notification Thereof, for ABM Systems and Their
    Components of July 3, 1974, agreed upon procedures governing
    replacement, dismantling or destruction, and notification thereof, for
    ABM systems and their components limited by the Treaty, as formulated
    in the Attachment to this Supplementary Protocol.
          This Supplementary Protocol and the attached Procedures shall
    constitute an integral part of the Protocol on Procedures Governing
    Replacement, Dismantling or Destruction, and Notification Thereof, for
    ABM Systems and Their Components of July 3, 1974 and shall be
    considered the second attachment to that Protocol. The attached
    Procedures shall enter into force upon signature of this Supplementary
    Protocol and remain in force for the duration of the Treaty, and may be
    amended by the Standing Consultative Commission as it deems
    appropriate.
          DONE at Geneva on October 28, 1976, in duplicate, in the English
    and Russian languages, both texts being equally authentic.

    COMMISSIONER,                        COMMISSIONER,
    UNITED STATES OF AMERICA             UNION OF SOVIET SOCIALIST
                                             REPUBLICS
                                     ______

                            Geneva--November 1, 1978

                        STANDING CONSULTATIVE COMMISSION

                                agreed statement
    Regarding Certain Provisions of Articles II, IV, and VI of the Treaty
    Between the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, and the Utilization of Air Defense Radars at the Test Ranges
    Referred to in Article IV of that Treaty

          In accordance with the provisions of the Treaty Between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems of May 26, 1972,
    hereinafter referred to as the Treaty, the Parties thereto have, within
    the framework of the Standing Consultative Commission, reached mutual
    understanding regarding the following:

                                       I.

              test ranges referred to in article iv of the treaty
          1. The test ranges referred to in Article IV of the Treaty are
    any test ranges at which an ABM system or at least one ABM launcher,
    regardless of whether or not it contains an ABM interceptor missile, or
    one ABM radar is located or constructed for purposes of testing.
          2. Any other types of weapons or military equipment may also be
    located at such test ranges for testing according to their mission or
    for range safety purposes. Such location, testing, or use of these
    other types of weapons or military equipment, provided it is consistent
    with the provisions of the Treaty, shall not constitute a basis for
    considering them ABM system components.
          3. The current test ranges referred to in Article IV of the
    Treaty are those test ranges which each Party had on the date of
    signature of the Treaty, that is, on May 26, 1972. Both the USA and
    USSR had on May 26, 1972, and have at the present time, two current
    test ranges: for the USA in the vicinity of White Sands, New Mexico,
    and on Kwajalein Atoll and for the USSR in the vicinity of Sary Shagan,
    Kazakhstan, and on the Kamchatka Peninsula.
          4. Each Party may establish test ranges referred to in Article IV
    of the Treaty as ``additionally agreed'' and locate therein for testing
    ABM systems or their components as they are defined in Article II of
    the Treaty, provided that the establishment of such ranges is
    consistent with the objectives and provisions of the Treaty and, in
    particular, with the obligations of each Party provided for in Article
    I of the Treaty not to deploy ABM systems for a defense of the
    territory of its country and not to provide a base for such a defense.
          5. In the event of establishment of an additional test range by
    either Party, the Party carrying out such action shall provide, within
    the framework of the Standing Consultative Commission, notification of
    the location of such a test range no later than thirty days after the
    beginning of any construction or assembly work, other than earthwork
    (excavation), associated with locating or constructing at that test
    range an ABM launcher or antenna (array), ABM radar antenna structures,
    or an antenna pedestal support which is not a part of an ABM radar
    building. After presentation of such notification and, if necessary,
    clarification in the Standing Consultative Commission of any aspects of
    this notification which are not clear to the Party being notified, the
    test range being newly established will be considered an ``additionally
    agreed test range,'' referred to in Article IV of the Treaty.

                                      II.

             the term ``tested in an abm mode'' used in the treaty
          1. The term ``tested in an ABM mode,'' which is used in Article
    II of the Treaty for defining ABM system components, refers to ABM
    interceptor missiles, ABM launchers, or ABM radars, which are tested in
    an ABM mode separately or in conjunction with other ABM system
    components after the date of signature of the Treaty, that is after May
    26, 1972. The term does not refer to components which were tested by
    the Parties in an ABM mode prior to that date.
          2. Testing in an ABM mode is the testing, which, in accordance
    with the provisions of Articles III and IV of the Treaty regarding
    locations of ABM systems or their components, is carried out only at
    test ranges or in an ABM system deployment area, for the purpose of
    determining the capabilities of an ABM system or its individual
    components (ABM interceptor missiles, ABM launchers, or ABM radars) to
    perform the functions of countering strategic ballistic missiles or
    their elements in flight trajectory.
          3. As applied to testing of ABM interceptor missiles, ABM
    launchers, or ABM radars, the term ``strategic ballistic missiles or
    their elements in flight trajectory,'' used in the Treaty, also refers
    to ballistic target-missiles which, after being launched, are used for
    testing these ABM system components in an ABM mode, and the flight
    trajectories of which, over the portions of the flight trajectory
    involved in such testing, have the characteristics of the flight
    trajectory of a strategic ballistic missile or its elements.
          4. The term ``tested in an ABM mode'' used in Article II of the
    Treaty refers to:

            (a) an ABM interceptor missile if while guided by an ABM radar
            it has intercepted a strategic ballistic missile or its
            elements in flight trajectory regardless of whether such
            intercept was successful or not; or if an ABM interceptor
            missile has been launched from an ABM launcher and guided by an
            ABM radar. If ABM interceptor missiles are given the capability
            to carry out interception without the use of ABM radars as the
            means of guidance, application of the term ``tested in an ABM
            mode'' to ABM interceptor missiles in that event shall be
            subject to additional discussion and agreement in the Standing
            Consultative Commission;

            (b) an ABM launcher if it has been used for launching an ABM
            interceptor missile;

            (c) an ABM radar if it has tracked a strategic ballistic
            missile or its elements in flight trajectory and guided an ABM
            interceptor missile toward them regardless of whether the
            intercept was successful or not; or tracked and guided an ABM
            interceptor missile; or tracked a strategic ballistic missile
            or its elements in flight trajectory in conjunction with an ABM
            radar, which is tracking a strategic ballistic missile or its
            elements in flight trajectory and guiding an ABM interceptor
            missile toward them or is tracking and guiding an ABM
            interceptor missile.

          5. The provisions of paragraph 4 of this Section shall be applied
    taking into account Article VI, subparagraph (a), of the Treaty
    concerning the obligations of the Parties not to give missiles,
    launchers, or radars, other than ABM system components, capabilities to
    counter strategic ballistic missiles or their elements in flight
    trajectory. The term ``tested in an ABM mode'' shall not be applied to
    radars for early warning of strategic ballistic missile attack, or to
    radars, including phased-array radars, used for the purposes of
    tracking objects in outer space or as national technical means of
    verification.
          6. The term ``tested in an ABM mode'' shall not be applied to
    radars, including phased-array radars, which are constructed and used
    only as instrumentation equipment for testing of any types of weapons
    or military equipment.
          7. The term ``tested in an ABM mode'' shall not be applied to a
    radar, including a phased-array radar, which is not an ABM radar or a
    radar referred to in paragraphs 5 and 6 of this Section, if strategic
    ballistic missiles or their elements passed through the field of view
    of the radar while it was operating in accordance with its mission, and
    it was not, at that time, performing functions inherent only to an ABM
    radar, and it was not functioning in conjunction with an ABM radar. In
    the event that ambiguities arise in the future regarding application of
    the term ``tested in an ABM mode'' to individual radars which track
    strategic ballistic missiles or their elements in flight trajectory,
    the Parties, in accordance with Article XIII of the ABM Treaty, will
    consider such questions in the Standing Consultative Commission and
    resolve them on a mutually acceptable basis.
          8. Deployment of radars of a type tested in an ABM mode, except
    as provided in Articles III and IV of the Treaty, to carry out any
    functions would be inconsistent with the obligation of each Party not
    to provide a base for an ABM defense of the territory of its country.

                                      III.

      utilization of air defense radars at the test ranges referred to in
                            article iv of the treaty
          1. Utilization of air defense radars located at or near a test
    range to carry out air defense functions, including providing for the
    safety of that range, is not limited by the provisions of the Treaty
    and is independent of the testing carried out at that range.
          2. When air defense components and ABM system components are co-
    located at a test range, the Parties, in order to preclude the
    possibility of ambiguous situations or misunderstandings, will refrain
    from concurrent testing of such air defense components and ABM system
    components at that range.
          3. In utilizing air defense radars as instrumentation equipment
    at test ranges the Parties will not use such radars to make
    measurements on strategic ballistic missiles or their elements in
    flight trajectory.
                                     ______

                       STATEMENT BY COMMISSIONER BUCHHEIM

                                November 1, 1978

          Mr. Commissioner, I would like to make the following statement
    regarding the Agreed Statement which we have just initialed.

          FIRST, in paragraph 6 of Section II of the Agreed Statement of
    November 1, 1978, the Parties agreed that the term ``tested in an ABM
    mode'' shall not be applied to radars, including phased-array radars,
    which are constructed and used only as instrumentation equipment for
    testing of any types of weapons or military equipment. With respect to
    such radars the Parties understand that:

            (a) phased-array radars which have a potential exceeding three
            million may be located only at the test ranges referred to, in
            Article IV of the ABM Treaty;

            (b) phased-array radars which have a potential not exceeding
            three million and which make measurements on strategic
            ballistic missiles or their elements in flight trajectory may
            be located only at the test ranges referred to in Article IV of
            the ABM Treaty, or at locations to which strategic ballistic
            missiles are launched for testing;

            (c) phased-array radars which have a potential not exceeding
            three million and which do not make measurements on strategic
            ballistic missiles or their elements in flight trajectory may
            be located anywhere for instrumentation or other purposes not
            inconsistent with the ABM Treaty;

            (d) non-phased-array radars may be located anywhere for
            instrumentation or other purposes not inconsistent with the ABM
            Treaty.

          SECOND, in connection with paragraph 7 of Section II of the
    Agreed Statement of November 1, 1978, the Parties understand that ABM
    radars, radars for early warning of strategic ballistic missile attack,
    radars used for tracking objects in outer space or as national
    technical means of verification, as well as radars constructed and used
    only as instrumentation equipment for testing of any types of weapons
    or military equipment can, when operating in accordance with their
    missions, perform the function inherent to them of tracking strategic
    ballistic missiles or their elements in flight trajectory.
          In addition to the aforementioned radars, both Parties have other
    radars, including phased-array radars, intended for various missions.
    When these radars are operating in accordance with their missions,
    strategic ballistic missiles or their elements might pass through the
    fields of view of these radars. The passing of strategic ballistic
    missiles or their elements through the fields of view of such radars
    will not be equated with tracking of such missiles by these radars and
    cannot give grounds for either Party to consider that in these cases
    the radars are being tested in an ABM mode.
          If ambiguities arise in the future regarding application of the
    term ``tested in an ABM mode'' to individual radars which track
    strategic ballistic missiles or their elements in flight trajectory, or
    regarding determination of whether these radars are ABM radars or
    radars which are not ABM radars, such questions will be subject to
    consultation in the Standing Consultative Commission in accordance with
    Article XIII of the ABM Treaty.

          THIRD, the Parties, in connection with the Agreed Statement
    Regarding Certain Provisions of the ABM Treaty, have the common
    understanding that the Agreed Statement will be used by the Parties in
    their implementation of those provisions of the ABM Treaty, beginning
    on the date of initialing of the Agreed Statement by the U.S. and USSR
    SCC Commissioners, that is, November 1, 1978. Like the statements in
    connection with paragraphs II.6 and II.7 of the Agreed Statement, this
    common understanding constitutes a component part of the general
    understanding reached between the Parties with regard to certain
    provisions of the ABM Treaty.
                                     ______

                       STATEMENT BY COMMISSIONER USTINOV

                                November 1, 1978

          Mr. Commissioner, I would like to make the following statement
    regarding the Agreed Statement which we have just initialed.

          FIRST, in paragraph 6 of Section II of the Agreed Statement of
    November 1, 1978, the Parties agreed that the term ``tested in an ABM
    mode'' shall not be applied to radars, including phased-array radars,
    which are constructed and used only as instrumentation equipment for
    testing of any types of weapons or military equipment. With respect to
    such radars the Parties understand that:

            (a) phased-array radars which have a potential exceeding three
            million may be located only at the test ranges referred to in
            Article IV of the ABM Treaty;

            (b) phased-array radars which have a potential not exceeding
            three million and which make measurements on strategic
            ballistic missiles or their elements in flight trajectory may
            be located only at the test ranges referred to in Article IV of
            the ABM Treaty, or at locations to which strategic ballistic
            missiles are launched for testing;

            (c) phased-array radars which have a potential not exceeding
            three million and which do not make measurements on strategic
            ballistic missiles or their elements in flight trajectory may
            be located anywhere for instrumentation or other purposes not
            inconsistent with the ABM Treaty;

            (d) non-phased-array radars may be located anywhere for
            instrumentation or other purposes not inconsistent with the ABM
            Treaty.

          SECOND, in connection with paragraph 7 of Section II of the
    Agreed Statement of November 1, 1978, the Parties understand that ABM
    radars, radars for early warning of strategic ballistic missile attack,
    radars used for tracking objects in outer space or as national
    technical means of verification, as well as radars constructed and used
    only as instrumentation equipment for testing of any types of weapons
    or military equipment can, when operating in accordance with their
    missions, perform the function inherent to them of tracking strategic
    ballistic missiles or their elements in flight trajectory.
          In addition to the aforementioned radars, both Parties have other
    radars, including phased-array radars, intended for various missions.
    When these radars are operating in accordance with their missions,
    strategic ballistic missiles or their elements might pass through the
    fields of view of these radars. The passing of strategic ballistic
    missiles or their elements through the fields of view of such radars
    will not be equated with tracking of such missiles by these radars and
    cannot give grounds for either Party to consider that in these cases
    the radars are being tested in an ABM mode.
          If ambiguities arise in the future regarding application of the
    term ``tested in an ABM mode'' to individual radars which track
    strategic ballistic missiles or their elements in flight trajectory, or
    regarding determination of whether these radars are ABM radars or
    radars which are not ABM radars, such questions will be subject to
    consultation in the Standing Consultative Commission in accordance with
    Article XIII of the ABM Treaty.

          THIRD, the Parties, in connection with the Agreed Statement
    Regarding Certain Provisions of the ABM Treaty, have the common
    understanding that the Agreed Statement will be used by the Parties in
    their implementation of those provisions of the ABM Treaty, beginning
    on the date of initialing of the Agreed Statement by the U.S. and USSR
    SCC Commissioners, that is, November 1, 1978. Like the statements in
    connection with paragraphs II.6 and II.7 of the Agreed Statement, this
    common understanding constitutes a component part of the general
    understanding reached between the Parties with regard to certain
    provisions of the ABM Treaty.
                                     ______

                              Geneva--June 6, 1985

                        STANDING CONSULTATIVE COMMISSION

                              COMMON UNDERSTANDING

       related to paragraph 2 of section iii of the agreed statement of
    november 1, 1978, regarding certain provisions of articles ii, iv, and
    vi of the treaty between the united states of america and the union of
    soviet socialist republics on the limitation of anti-ballistic missile
     systems of may 26, 1972, and the utilization of air defense radars at
            the test ranges referred to in article iv of that treaty
          In accordance with the provisions of the Treaty Between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems of May 26, 1972,
    hereinafter referred to as the Treaty, the Parties thereto, in further
    development of the agreement recorded in paragraph 2 of Section III of
    the Agreed Statement of November 1, 1978, with a view to precluding the
    possibility of ambiguous situations at the test ranges referred to in
    Article IV of the Treaty, have, within the framework of the Standing
    Consultative Commission, additionally agreed that:

            each Party will refrain from launching strategic ballistic
            missiles to the area of such a test range or from launching ABM
            interceptor missiles at that test range concurrent with the
            operation of air defense components located at that range;

            in agreeing to the foregoing the Parties recognize the
            possibility of circumstances--the appearance of a hostile or
            unidentified aircraft--in which, for the purpose of providing
            for air defense, a necessity for the operation of air defense
            components, located at the test range for carrying out air
            defense functions including providing for range safety, may
            arise unexpectedly during the launch of a strategic ballistic
            missile to the area of the test range or during the launch of
            an ABM interceptor missile at that range. Should such an event
            occur, the Party which had such a concurrent operation will, as
            soon as possible, but within thirty days, provide notification
            to the other Party describing the circumstances of the event.
            It will, if necessary, on a voluntary basis, also inform the
            other Party about the event or hold consultations with it
            within the framework of the Standing Consultative Commission,
            as provided for in Article XIII of the Treaty and paragraph 4
            of the Regulations of the Standing Consultative Commission.

          This Common Understanding constitutes a component part of the
    agreement reached between the Parties with regard to the provisions of
    paragraph 2 of Section III of the Agreed Statement of November 1, 1978,
    and does not affect other provisions of that Agreed Statement or the
    provisions of the common understandings thereto reached by
    Commissioners in the Standing Consultative Commission on November 1,
    1978.
          The provisions of this Common Understanding will be used by the
    Parties in their implementation of the provisions of the Treaty and the
    Agreed Statement of November 1, 1978, beginning on the date of
    signature of this Common Understanding, that is, June 6, 1985.

    COMMISSIONER,                        COMMISSIONER,
    UNITED STATES OF AMERICA             UNION OF SOVIET SOCIALIST
                                             REPUBLICS
                                     ______

                               September 26, 1997

     MEMORANDUM OF UNDERSTANDING RELATING TO THE TREATY BETWEEN THE UNITED
     STATES OF AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE
          LIMITATION OF ANTI-BALLISTIC MISSILE SYSTEMS OF MAY 26, 1972

          The United States of America, and the Republic of Belarus, the
    Republic of Kazakhstan, the Russian Federation and Ukraine, hereinafter
    referred to for purposes of this Memorandum as the Union of Soviet
    Socialist Republics (USSR) Successor States,
          Recognizing the importance of preserving the viability of the
    Treaty Between the United States of America and the Union of Soviet
    Socialist Republics on the Limitation of Anti-Ballistic Missile Systems
    of May 26, 1972, hereinafter referred to as the Treaty, with the aim of
    maintaining strategic stability,
          Recognizing the changes in the political situation resulting from
    the establishment of new independent states on the territory of the
    former USSR,
          Have, in connection with the Treaty, agreed as follows:

                                   Article I

          The United States of America, the Republic of Belarus, the
    Republic of Kazakhstan, the Russian Federation, and Ukraine, upon entry
    into force of this Memorandum, shall constitute the Parties to the
    Treaty.

                                   Article II

          The USSR Successor States shall assume the rights and obligations
    of the former USSR under the Treaty and its associated documents.

                                  Article III

          Each USSR Successor State shall implement the provisions of the
    Treaty with regard to its territory and with regard to its activities,
    wherever such activities are carried out by that State, independently
    or in cooperation with any other State.

                                   Article IV

          For purposes of Treaty implementation:

            (a) the term ``Union of Soviet Socialist Republics'' shall mean
            the USSR Successor States;

            (b) the terms ``national territory'' and ``territory of its
            country'' when used to refer to the former USSR shall mean the
            combined national territories of the USSR Successor States, and
            the term ``periphery of its national territory'' when used to
            refer to the former USSR shall mean the periphery of the
            combined national territories of those States; and

            (c) the term ``capital'' when used to refer to the capital of
            the Union of Soviet Socialist Republics in Article III of the
            Treaty and the Protocol thereto of July 3, 1974, shall continue
            to mean the city of Moscow.

                                   Article V

          A USSR Successor State or USSR Successor States may continue to
    use any facility that is subject to the provisions of the Treaty and
    that is currently located on the territory of any State that is not a
    Party to the Treaty, with the consent of such State, and provided that
    the use of such facility shall remain consistent with the provisions of
    the Treaty.

                                   Article VI

          The USSR Successor States shall collectively be limited at any
    one time to a single anti-ballistic missile (ABM) system deployment
    area and to a total of no more than fifteen ABM launchers at ABM test
    ranges, in accordance with the provisions of the Treaty and its
    associated documents, including the Protocols of July 3, 1974.

                                  Article VII

          The obligations contained in Article IX of the Treaty and Agreed
    Statement ``G'' Regarding the Treaty shall not apply to transfers
    between or among the USSR Successor States.

                                  Article VIII

          The Standing Consultative Commission, hereinafter referred to as
    the Commission, shall function in the manner provided for by the Treaty
    and the Memorandum of Understanding Between the Government of the
    United States of America and the Government of the Union of Soviet
    Socialist Republics Regarding the Establishment of a Standing
    Consultative Commission of December 21, 1972, as well as by the
    Regulations of the Conmiission, which shall reflect the multilateral
    character of the Treaty and the equal legal status of the Parties in
    reaching decisions in the Commission.

                                   Article IX

          1. This Memorandum shall be subject to ratification or approval
    by the signatory States, in accordance with the constitutional
    procedures of those States.
          2. The functions of the depositary of this Memorandum shall be
    exercised by the Government of the United States of America.
          3. This Memorandum shall enter into force on the date when the
    Governments of all the signatory States have deposited instruments of
    ratification or approval of this Memorandum and shall remain in force
    so long as the Treaty remains in force.
          4. Each State that has ratified or approved this Memorandum shall
    also be bound by the provisions of the First Agreed Statement of
    September 26, 1997, Relating to the Treaty Between the United States of
    America and the Union of Soviet Socialist Republics on the Limitation
    of Anti-Ballistic Missile Systems of May 26, 1972, and the Second
    Agreed Statement of September 26, 1997, Relating to the Treaty Between
    the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972.

          DONE at New York City on September 26, 1997, in five copies, each
    in the English and Russian languages, both texts being equally
    authentic.

    for the united states of america:
    Madeleine Albright

    for the republic of belarus:
    I. Antonovich

    for the republic of kazakhstan:
    K. Tokayev

    for the russian federation:
    Y. Primakov

    for ukraine:
    H. Udovenko
                                     ______

                               September 26, 1997

                        STANDING CONSULTATIVE COMMISSION

    FIRST AGREED STATEMENT RELATING TO THE TREATY BETWEEN THE UNITED STATES
         OF AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE
          LIMITATION OF ANTI-BALLISTIC MISSILE SYSTEMS OF MAY 26, 1972

          In connection with the provisions of the Treaty Between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems of May 26, 1972,
    hereinafter referred to as the Treaty, the Parties to the Treaty have,
    within the framework of the Standing Consultative Commission, reached
    agreement on the following:

              1. Land-based, sea-based, and air-based interceptor missiles,
            interceptor missile launchers, and radars, other than anti-
            ballistic missile (ABM) interceptor missiles, ABM launchers, or
            ABM radars, respectively, shall be deemed, within the meaning
            of paragraph (a) of Article VI of the Treaty, not to have been
            given capabilities to counter strategic ballistic missiles or
            their elements in flight trajectory and not to have been tested
            in an ABM mode, if, in the course of testing them separately or
            in a system:

                    (a) the velocity of the interceptor missile does not
                    exceed 3 km/sec over any part of its flight trajectory;

                    (b) the velocity of the ballistic target-missile does
                    not exceed 5 km/sec over any part of its flight
                    trajectory; and

                    (c) the range of the ballistic target-missile does not
                    exceed 3,500 kilometers.

              2. The Parties have additionally agreed on reciprocal
            implementation of the confidence-building measures set forth in
            the Agreement on Confidence-Building Measures Related to
            Systems to Counter Ballistic Missiles Other Than Strategic
            Ballistic Missiles of September 26, 1997.

              3. This Agreed Statement shall enter into force
            simultaneously with entry into force of the Memorandum of
            Understanding of September 26, 1997, Relating to the Treaty
            Between the United States of America and the Union of Soviet
            Socialist Republics on the Limitation of Anti-Ballistic Missile
            Systems of May 26, 1972.

          DONE at New York City on September 26, 1997, in five copies, each
    in the English and Russian languages, both texts being equally
    authentic.

    for the united states of america:
    Stanley Riveles

    for the republic of belarus:
    S. Agurtsou

    for the republic of kazakhstan:
    K. Zhanbatyrov

    for the russian federation:
    V. Koltunov

    for ukraine:
    0. Rybak
                                     ______

        COMMON UNDERSTANDINGS RELATED TO THE FIRST AGREED STATEMENT OF
    SEPTEMBER 26, 1997, RELATING TO THE TREATY BETWEEN THE UNITED STATES OF
     AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION
               OF ANTI-BALLISTIC MISSILE SYSTEMS OF MAY 26, 1972

                                       I.

          The term ``interceptor missile,'' as used in the First Agreed
    Statement of September 26, 1997, shall refer to any missile subject to
    the provisions of paragraph (a) of Article VI of the Treaty if such a
    missile:

            (a) has been developed by a Party as a missile to counter
            ballistic missiles other than strategic ballistic missiles; or

            (b) has been declared by a Party as a missile to counter
            ballistic missiles other than strategic ballistic missiles; or

            (c) has been tested by a Party even once with the use of a
            ballistic target-missile.

          With respect to subparagraphs (a), (b), or (c), such a missile
    shall be considered an interceptor missile in all its launches.

                                      II.

          The provisions of paragraph 1 of the First Agreed Statement of
    September 26, 1997, do not supersede or amend any provision of the
    Agreed Statement of November 1, 1978, and do not alter the meaning of
    the term ``tested in an ABM mode'' as that term is used in the Treaty,
    including the Agreed Statement of November 1, 1978.

                                      III.

          The Parties have agreed that, for the purposes of the First
    Agreed Statement of September 26, 1997, the velocity of an interceptor
    missile as well as the velocity of a ballistic target-missile shall be
    determined in an earth-centered coordinate system fixed in relation to
    the Earth.

                                      IV.

          The Parties have agreed that, for the purposes of the First
    Agreed Statement of September 26, 1997, the velocity of space-based
    interceptor missiles shall be considered to exceed 3 km/sec.
          These Common Understandings shall be considered an attachment to
    the First Agreed Statement of September 26, 1997, and shall constitute
    an integral part thereof.
                                     ______

                               September 26, 1997

                        STANDING CONSULTATIVE COMMISSION

       SECOND AGREED STATEMENT RELATING TO THE TREATY BETWEEN THE UNITED
     STATES OF AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE
          LIMITATION OF ANTI-BALLISTIC MISSILE SYSTEMS OF MAY 26, 1972

          In connection with the provisions of the Treaty Between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems of May 26, 1972,
    hereinafter referred to as the Treaty, the Parties to the Treaty,
          Expressing their commitment to strengthening strategic stability
    and international security,
          Emphasizing the importance of further reductions in strategic
    offensive arms,
          Recognizing the fundamental significance of the Treaty for the
    above objectives,
          Recognizing the necessity for effective systems to counter
    ballistic missiles other than strategic ballistic missiles,
          Considering it their common task to preserve the Treaty, prevent
    its circumvention and enhance its viability,
          Relying on the following principles that have served as a basis
    for reaching this agreement:

       the Parties are committed to the Treaty as a cornerstone of
            strategic stability;

       the Parties must have the option to establish and to deploy
            effective systems to counter ballistic missiles other than
            strategic ballistic missiles, and such activity must not lead
            to violation or circumvention of the Treaty;

       systems to counter ballistic missiles other than strategic
            ballistic missiles may be deployed by each Party which will not
            pose a realistic threat to the strategic nuclear force of
            another Party and which will not be tested to give such systems
            that capability;

       systems to counter ballistic missiles other than strategic
            ballistic missiles will not be deployed by the Parties for use
            against each other; and

       the scale of deployment--in number and geographic scope--of
            systems to counter ballistic missiles other than strategic
            ballistic missiles by any Party will be consistent with
            programs for ballistic missiles other than strategic ballistic
            missiles confronting that Party;

          Have, within the framework of the Standing Consultative
    Commission, with respect to systems to counter ballistic missiles other
    than strategic ballistic missiles with interceptor missiles whose
    velocity exceeds 3 km/sec over any part of their flight trajectory,
    hereinafter referred to as systems covered by this Agreed Statement,
    reached agreement on the following:

            1. Each Party undertakes that, in the course of testing,
            separately or in a system, land-based, sea-based, and air-based
            interceptor missiles, interceptor missile launchers, and
            radars, of systems covered by this Agreed Statement, which are
            not anti-ballistic missile (ABM) interceptor missiles, ABM
            launchers, or ABM radars, respectively:

                    (a) the velocity of the ballistic target-missile will
                    not exceed 5 km/sec over any part of its flight
                    trajectory; and

                    (b) the range of the ballistic target-missile will not
                    exceed 3,500 kilometers.

            2. Each Party, in order to preclude the possibility of
            ambiguous situations or misunderstandings related to compliance
            with the provisions of the Treaty, undertakes not to develop,
            test, or deploy space-based interceptor missiles to counter
            ballistic missiles other than strategic ballistic missiles, or
            space-based components based on other physical principles,
            whether or not part of a system, that are capable of
            substituting for such interceptor missiles.

            3. In order to enhance confidence in compliance with the
            provisions of the Treaty, the Parties shall implement the
            provisions of the Agreement on Confidence-Building Measures
            Related to Systems to Counter Ballistic Missiles Other Than
            Strategic Ballistic Missiles of September 26, 1997, hereinafter
            referred to as the Confidence-Building Measures Agreement, with
            respect to systems covered by this Agreed Statement and not
            subject to the Confidence-Building Measures Agreement on the
            date of its entry into force. Each such system shall become
            subject to the provisions of the Confidence-Building Measures
            Agreement no later than 180 days in advance of the planned date
            of the first launch of an interceptor missile of that system.
            All information provided for in the Confidence-Building
            Measures Agreement shall initially be provided no later than 30
            days after such a system becomes subject to the provisions of
            the Confidence-Building Measures Agreement.

            4. In order to ensure the viability of the Treaty as
            technologies related to systems to counter ballistic missiles
            other than strategic ballistic missiles evolve, and in
            accordatice with Article XIII of the Treaty, the Parties
            undertake to hold consultations and discuss, within the
            framework of the Standing Consultative Commission, questions or
            concerns that any Party may have regarding activities involving
            systems covered by this Agreed Statement, including questions
            and concerns related to the implementation of the provisions of
            this Agreed Statement.

            5. This Agreed Statement shall enter into force simultaneously
            with entry into force of the Memorandum of Understanding of
            September 26, 1997, Relating to the Treaty Between the United
            States of America and the Union of Soviet Socialist Republics
            on the Limitation of Anti-Ballistic Missile Systems of May 26,
            1972.

          DONE at New York City on September 26, 1997, in five copies, each
    in the English and Russian languages, both texts being equally
    authentic.

    for the united states of america:
    Stanley Riveles

    for the republic of belarus:
    S. Agurtsou

    for the republic of kazakhstan:
    K. Zhanbatyrov

    fpr the russian federation:
    V. Koltunov

    for ukraine:
    O. Rybak
                                     ______

        COMMON UNDERSTANDINGS RELATED TO THE SECOND AGREED STATEMENT OF
    SEPTEMBER 26, 1997, RELATING TO THE TREATY BETWEEN THE UNITED STATES OF
     AMERICA AND THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION
               OF ANTI-BALLISTIC MISSILE SYSTEMS OF MAY 26, 1972

                                       I.

          The term ``interceptor missile,'' as used in the Second Agreed
    Statement of September 26, 1997, shall refer to any missile subject to
    the provisions of paragraph (a) of Article VI of the Treaty if such a
    missile:

            (a) has been developed by a Party as a missile to counter
            ballistic missiles other than strategic ballistic missiles; or

            (b) has been declared by a Party as a missile to counter
            ballistic missiles other than strategic ballistic missiles; or

            (c) has been tested by a Party even once with the use of a
            ballistic target-missile.

          With respect to subparagraphs (a), (b), or (c), such a missile
    shall be considered an interceptor missile in all its launches.

                                      II.

          The Parties have agreed that, for the purposes of the Second
    Agreed Statement of September 26, 1997, the velocity of an interceptor
    missile as well as the velocity of a ballistic target-missile shall be
    determined in an earth-centered coordinate system fixed in relation to
    the Earth.

                                      III.

          The Parties have agreed that for the purposes of the Second
    Agreed Statement of September 26, 1997, the velocity of space-based
    interceptor missiles shall be considered to exceed 3 km/sec.

                                      IV.

          For systems to counter ballistic missiles other than strategic
    ballistic missiles with interceptor missiles whose velocity exceeds 3
    km/sec over any part of their flight trajectory, that become subject to
    the Confidence-Building Measures Agreement in accordance with paragraph
    3 of the Second Agreed Statement of September 26, 1997, the Parties
    understand that, in connection with the provisions of paragraph 2(b) of
    Section IV of the Confidence-Building Measures Agreement, detailed
    information on such systems shall be provided in a form and scope as
    agreed upon by the Parties.
          These Common Understandings shall be considered an attachment to
    the Second Agreed Statement of September 26, 1997, and shall constitute
    an integral part thereof.
                                     ______

                               September 26, 1997

    AGREEMENT ON CONFIDENCE-BUILDING MEASURES RELATED TO SYSTEMS TO COUNTER
           BALLISTIC MISSILES OTHER THAN STRATEGIC BALLISTIC MISSILES

          The States that have signed this Agreement, hereinafter referred
    to as the Parties,
          Desiring to promote reciprocal openness, greater trust between
    the Parties, and the preservation of strategic stability,
          Declaring their intention to implement, on a reciprocal basis,
    confidence-building measures with respect to systems to counter
    ballistic missiles other than strategic ballistic missiles,
          Have agreed as follows:

                             I. General Provisions

          1. Systems subject to this Agreement shall be: for the United
    States of America--the Theater High-Altitude Area Defense (THAAD)
    System and the Navy Theater-Wide Theater Ballistic Missile Defense
    Program, known to the other Parties by the same names; for the Russian
    Federation--the S-300V system, known to the United States of America as
    the SA-12 system; for the Republic of Belarus--the S-300V system, known
    to the United States of America as the SA-12 system; for Ukraine--the
    S-300V system, known to the United States of America as the SA-12
    system; and other systems as agreed upon by the Parties in the future.
          2. The Parties shall conduct an initial exchange of information
    and notifications, as provided for in this Agreement, no later than 90
    days after entry into force of this Agreement, reflecting the status as
    of the date of its entry into force, and update this information
    annually, unless otherwise agreed. Information shall be updated
    reflecting the status as of January 1 of each year and provided no
    later than April 1 of each year.

                               II. Notifications

          1. Each Party shall provide notifications to the other Parties of
    test ranges and other test areas where launches of interceptor missiles
    of systems subject to this Agreement will take place. Notifications of
    test ranges and other test areas shall include the names of ranges
    (test areas) and their locations. Such notifications shall be provided
    either within 30 days after entry into force of this Agreement, or no
    later than 90 days in advance of the first launch of an interceptor
    missile of a system subject to this Agreement at each test range (test
    area).
          2. Each Party shall provide notification to the other Parties of
    each launch of an interceptor missile of systems subject to this
    Agreement, if during that launch a ballistic target-missile is used. In
    this connection:

            (a) an interceptor missile launch notification shall specify
            the name of the test range (test area) where the interceptor
            missile launch will take place; the type (designation) of the
            interceptor missile; the planned date of the interceptor
            missile launch; the planned launch point of the interceptor
            missile (geographic coordinates; for air-based systems the
            geographic coordinates of the projection of the planned launch
            point of the interceptor missile onto the Earth's surface shall
            be specified); the planned launch point of the ballistic
            target-missile (geographic coordinates);

            (b) each interceptor missile launch notification shall be
            provided no later than 10 days in advance of the planned date
            of the interceptor missile launch and shall be effective for
            seven days beginning with the planned date of that launch; and

            (c) if the launch of the interceptor missile will not occur or
            has not occurred within the specified 7-day period, the Party
            that planned to carry out the launch of the interceptor missile
            shall provide a notification thereof no later than 24 hours
            after the expiration of the 7-day period. Such a notification
            shall state that the interceptor missile launch has not
            occurred and shall either specify a new launch date, which will
            establish the beginning of a new 7-day period, or state that a
            notification of a new launch date will be made in accordance
            with the procedure specified in subparagraph (b) of this
            paragraph.

            III. Demonstrations of Systems and Observations of Tests

          Any Party may on a voluntary basis arrange, for any other Party
    or Parties, a demonstration of its systems or their components subject
    to this Agreement or an observation of their tests. In each specific
    case, the participating Parties shall agree in advance on the purpose
    of, and the arrangements for, such demonstrations and observations.

                                 IV. Assurances

          Each Party shall provide assurances that it will not deploy
    systems subject to this Agreement in numbers and locations so that
    these systems could pose a realistic threat to the strategic nuclear
    force of another Party. The measures used to provide such assurances
    shall include:
          1. Each Party shall provide to the other Parties, in a form and
    scope as agreed upon by the Parties, an assessment of the programs with
    respect to the development, testing and deployment of ballistic
    missiles, other than strategic ballistic missiles, confronting that
    Party.
        2. For each of its systems subject to this Agreement, each Party
    shall provide the following information:

            (a) the name, type (designation), and basing mode of the system
            as well as of its interceptor missiles, launchers, and
            associated radars;

            (b) the general concept of operation; the status of plans and
            programs; and, in addition, for systems in testing, the number
            of systems it plans to possess; the information shall be
            provided in a form and scope as agreed upon by the Parties;

            (c) the class and type of basing platform:

                    (i) for land-based systems: the number of launchers in
                    a battalion;

                    (ii) for sea-based systems: the class and type of each
                    ship, and the number of launchers on a ship of that
                    class capable of launching interceptor missiles of each
                    type;

                    (iii) for air-based systems: the type of each aircraft,
                    and the number of interceptor missiles each aircraft is
                    capable of carrying;

            (d) the number of interceptor missiles of a fully loaded
            launcher.

          3. For components of each of its systems subject to this
    Agreement, each Party shall provide the following information:

            (a) for a completely assembled interceptor missile: the number
            of stages, the length, the maximum diameter, the type of
            propellant (solid or liquid), maximum velocity demonstrated
            during launches, and the length and diameter of the interceptor
            missile launch canister;

            (b) for the interceptor missile launcher: the maximum number of
            interceptor missiles of a fully loaded launcher; and

            (c) for the radar: the frequency band (in designations adopted
            by the International Telecommunication Union) and potential,
            expressed as a value that is not exceeded by the radar's
            potential. The potential of a radar shall mean the product of
            its mean emitted power in watts and its antenna area in square
            meters.

                        V. Additional Voluntary Measures

          Each Party may provide on a voluntary basis any other information
    or any other notifications not specified elsewhere in this Agreement.
    The topics, amount, and time frame for such information and
    notifications shall be such as each Party determines.

                      VI. Implementation of the Agreement

          1. To promote the objectives and implementation of the provisions
    of this Agreement, the Parties, within the framework of the Standing
    Consultative Commission established in accordance with the Treaty
    Between the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, shall consider:

            (a) issues concerning implementation of the obligations assumed
            under this Agreement, as well as related situations which may
            be considered ambiguous; and

            (b) amendments to the provisions of this Agreement and other
            possible proposals on further increasing its viability.

          2. The Parties shall use the Nuclear Risk Reduction Center
    channels or the equivalent government-to-government communications
    links for providing the notifications and for exchanging the
    information provided for in Sections II, IV and V of this Agreement.

                              VII. Confidentiality

          Each Party undertakes not to release to the public the
    information provided pursuant to this Agreement except with the express
    consent of the Party that provided such information.

                      VIII. Entry into Force and Duration

          This Agreement shall enter into force simultaneously with entry
    into force of the First Agreed Statement of September 26, 1997,
    Relating to the Treaty Between the United States of America and the
    Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic
    Missile Systems of May 26, 1972, and the Second Agreed Statement of
    September 26, 1997, Relating to the Treaty Between the United States of
    America and the Union of Soviet Socialist Republics on the Limitation
    of Anti-Ballistic Missile Systems of May 26, 1972, and shall remain in
    force so long as either of those Agreed Statements remains in force.

          DONE at New York City on September 26, 1997, in five copies, each
    in the English and Russian languages, both texts being equally
    authentic.

    for the united states of america:
    Stanley Riveles

    for the republic of belarus:
    S. Agurtsou

    for the republic of kazakhstan:
    K. Zhanbatyrov

    for the russian federation:
    V. Koltunov

    for ukraine:
    O. Rybak
                                     ______

                       September 26, 1997--New York City

                        STANDING CONSULTATIVE COMMISSION

    JOINT STATEMENT ON THE ANNUAL EXCHANGE OF INFORMATION ON THE STATUS OF
        PLANS AND PROGRAMS WITH RESPECT TO SYSTEMS TO COUNTER BALLISTIC
                MISSILES OTHER THAN STRATEGIC BALLISTIC MISSILES

          1. The Parties understand that in implementing the provisions of
    paragraph 2(b) of Section IV of the Agreement on Confidence-Building
    Measures Related to Systems to Counter Ballistic Missiles Other Than
    Strategic Ballistic Missiles of September 26, 1997, each Party will
    provide information annually on the status of its plans and programs
    with respect to systems to counter ballistic missiles other than
    strategic ballistic missiles that includes:

            (a) whether or not that Party has plans before April 1999 to
            test, against a ballistic target-missile, land-based, sea-based
            or air-based interceptor missiles whose velocity exceeds 3 km/
            sec over any part of their flight trajectory;

            (b) whether or not that Party has plans to develop such systems
            with interceptor missiles whose velocity over any part of their
            flight trajectory exceeds 5.5 km/sec for land-based and air-
            based systems or 4.5 km/sec for sea-based systems; and

            (c) whether or not that Party has plans to test such systems
            against ballistic target-missiles with multiple independently
            targetable reentry vehicles or against reentry vehicles
            deployed or planned to be deployed on strategic ballistic
            missiles.

          2. The Parties understand that should any Party have questions or
    concerns regarding activity related to any change in the statement on
    plans of any other Party, the Parties will, in accordance with Article
    XIII of the Treaty Between the United States of America and the Union
    of Soviet Socialist Republics on the Limitation of Anti-Ballistic
    Missile Systems of May 26, 1972, hereinafter referred to as the Treaty,
    the Second Agreed Statement of September 26, 1997, Relating to the
    Treaty, and Section VI of the Agreement on Confidence-Building Measures
    Related to Systems to Counter Ballistic Missiles Other Than Strategic
    Ballistic Missiles of September 26, 1997, conduct consultations, within
    the framework of the Standing Consultative Commission, to discuss such
    questions or concerns, as well as possible proposals for further
    increasing the viability of the Treaty, including possible proposals to
    amend the Second Agreed Statement of September 26, 1997.

    S.R. (United States of America)

    S.A. (Republic of Belarus)

    K.Z. (Republic of Kazakhstan

    V.K. (Russian Federation)

    O.R. (Ukraine)
                                     ______

                               September 26, 1997

              REGULATIONS OF THE STANDING CONSULTATIVE COMMISSION

          In accordance with Article VIII of the Memorandum of
    Understanding of September 26, 1997, Relating to the Treaty Between the
    United States of America and the Union of Soviet Socialist Republics on
    the Limitation of Anti-Ballistic Missile Systems of May 26, 1972, the
    United States of America, the Republic of Belarus, the Republic of
    Kazakhstan, the Russian Federation and Ukraine have agreed as follows:

                                       I.

          1. Each Party shall have the right to be represented on the
    Standing Consultative Commission, hereinafter referred to as the
    Commission.
          2. Each Party shall designate a Commissioner, a Deputy
    Commissioner, and such members, advisors, and experts of its delegation
    to the Commission as it deems necessary.
          3. Each Party shall have the right to participate in all
    activities of the Commission.

                                      II.

          1. At any time, Commissioners may raise for discussion any matter
    that is within the competence of the Commission.
          2. Commissioners may also, at any time, transmit to or request
    from the other Commissioners, oral or written communications.
          3. Commissioners shall, when possible, inform each other in
    advance of matters to be raised for discussion in the Commission.
          4. Commissioners shall alternately preside over the meetings of a
    session of the Commission, unless otherwise agreed.
          5. Each Party may direct that the authorities and functions of a
    Commissioner may be exercised by a Deputy Commissioner or other
    authorized person.
          6. The Commission may establish working groups to undertake such
    activities as it may direct, including studying and preparing specific
    matters.

                                      III.

          1. The Commission shall be convened for sessions no less than
    twice a year. Such sessions proposed during the intersessional period
    shall be convened on a date, no later than 45 days after the date
    initially proposed, and with a duration agreed to by the United States
    of America and at least one other Party.
          2. Agreement on the commencement date and duration of a
    forthcoming session may be reached by consensus during a session in
    progress.
          3. During the intersessional period, any Commissioner may propose
    convening a session of the Commission by making a proposal or counter-
    proposal to the other Commissioners on the commencement date and
    duration of the forthcoming session at least 30 days in advance of the
    proposed commencement date of the session.
          4. The agenda for a session of the Commission shall include all
    matters proposed by any Commissioner and communicated to the other
    Commissioners in advance of the session. Any matter raised during the
    session by any Commissioner may be considered in the Commission.
          5. Sessions of the Commission shall be held in the city of
    Geneva, unless otherwise agreed.

                                      IV.

          1. Any matter within the competence of the Commission may be the
    subject of an agreement.
          2. Agreements may be recorded in any form acceptable to the
    Parties participating in the session.
          3. The negotiation of the text of an agreement during a session
    of the Commission shall be done on the basis of consensus of the
    Parties participating in the session.
          4. The United States of America shall notify, through diplomatic
    channels, all Parties not represented in a session of the Commission,
    of the final text of an agreement no later than 15 days after the final
    text has been negotiated in that session of the Commission.
          5. A Party shall approve an agreement negotiated in the
    Commission by signing it in the Commission or by submitting an
    instrument of approval. In addition, an agreement shall be considered
    approved by a Party if it fails to submit a diplomatic note in
    accordance with subparagraph 7(b) of this Section, or if its objections
    are withdrawn pursuant to subparagraph 7(b) or paragraph 8 of this
    Section.
          6. Each agreement negotiated in the Commission shall be
    considered adopted when all Parties have approved the agreement in
    accordance with paragraph 5 of this Section and shall enter into force
    on the date of its adoption, unless all Parties have agreed on a later
    date.
          7. A Party that has not approved an agreement negotiated during a
    session of the Commission shall be bound by the agreement in one of two
    ways:

            (a) if it submits an instrument of approval to all other
            Parties; or

            (b) if it fails to submit a diplomatic note, specifying its
            objections to the agreement, to all other Parties within 30
            days after receipt of a notification pursuant to paragraph 4 of
            this Section. Withdrawal of all of its objections by a Party
            shall be regarded as its approval of that agreement.

          8. Any diplomatic note submitted in accordance with subparagraph
    7(b) of this Section shall include the express intention of the
    objecting Party to address its objection in the next session of the
    Commission. Failure of an objecting Party to attend such session shall
    be considered its withdrawal of its objection unless that objection is
    renewed by diplomatic note to all other Parties prior to the closing of
    that session.
          9. If the text of an agreement, negotiated in the Commission in
    accordance with paragraph 3 of this Section, is amended in order to
    resolve any Party's objection or for any other reason, the amended
    agreement shall constitute a new agreement subject to the provisions of
    paragraphs 4, 5, 6, 7 and 8 of this Section.

                                       V.

          1. Matters raised and discussed in the Commission, as well as the
    results of discussions, and any agreements reached, may be recorded in
    documents which shall be done in English and Russian, both texts being
    equally authentic, and each Party shall be provided with a complete set
    of such documents.
          2. The Commission shall conduct its proceedings in private and
    may not make its proceedings public without the express consent of all
    Commissioners. The texts of agreements adopted by the Parties may be
    made public, unless otherwise agreed.
          3. The official languages of the Commission shall be English and
    Russian.
          4. Each Party shall bear the expenses connected with its
    participation in the Commission.

                                      VI.

          1. These Regulations shall supersede the Regulations of the
    Standing Consultative Commission approved in accordance with the
    Protocol of May 30, 1973. The provisions of the Memorandum of
    Understanding Between the Government of the United States of America
    and the Government of the Union of Soviet Socialist Republics Regarding
    the Establishment of a Standing Consultative Commission of December 21,
    1972, shall apply to the extent that they are consistent with the
    provisions of these Regulations.
          2. These Regulations shall enter into force simultaneously with
    entry into force of the Memorandum of Understanding of September 26,
    1997, Relating to the Treaty Between the United States of America and
    the Union of Soviet Socialist Republics on the Limitation of Anti-
    Ballistic Missile Systems of May 26, 1972. The Commission may revise,
    repeal, or replace these Regulations to the extent and in such manner
    as the Commission deems necessary.

          DONE at New York City on September 26, 1997, in five copies, each
    in the English and Russian languages, both texts being equally
    authentic.

    for the united states of america:
    Stanley Riveles

    for the republic of belarus:
    S. Agurtsou

    for the republic of kazakhstan:
    K. Zhanbatyrov

    for the russian federation:
    V. Koltunov

    for ukraine:
    O. Rybak
                                     ______

                           Geneva--November 21, 1977

       COMMUNIQUE OF THE US-USSR STANDING CONSULTATIVE COMMISSION ON THE
    REVIEW OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNION
       OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-BALLISTIC
                        MISSILE SYSTEMS OF MAY 26, 1972

          In accordance with the provisions of Article XIV of the Treaty
    Between the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, which entered into force on October 3, 1972, and was amended
    by the Protocol thereto of July 3, 1974, the Parties to the Treaty,
    together conducted a review of the Treaty after five years of its
    operation. By agreement between the Parties, the review was conducted
    from November 4 to November 21, 1977, in a special session of the
    Standing Consultative Commission which was convened for that purpose.
          The Parties agree that the Treaty is operating effectively, thus
    demonstrating the mutual commitment of the USA and the USSR to the goal
    of limiting nuclear arms and to the principle of equal security, serves
    the security interests of both Parties, decreases the risk of outbreak
    of nuclear war, facilitates progress in the further limitation and
    reduction of strategic offensive arms, and requires no amendment at
    this time.
          The Parties note, in connection with the conduct of the review,
    that during the aforementioned period of operation of the Treaty
    consultations and discussions have been held in the Standing
    Consultative Commission on matters pertaining to promoting the
    implementation of the objectives and provisions of the Treaty. These
    consultations and discussions have been productive and useful in
    clarifying the mutual understanding of the Parties concerning certain
    provisions of the Treaty, in working out appropriate procedures for
    implementation of its provisions, and in resolving a number of
    questions related to complete and precise implementation of the
    provisions of the Treaty.
          Mindful of their obligation to conduct together a review of the
    Treaty at five-year intervals, the Parties will continue the process of
    consultation concerning the implementation, as well as the enhancement
    of the viability and effectiveness, of the provisions of the Treaty.
          The Parties reaffirm their mutual commitment to the objectives
    and provisions of the Treaty and their resolve to maintain and further
    increase the viability and effectiveness of the Treaty.
                                     ______

                           Geneva--December 15, 1982

       COMMUNIQUE OF THE US-USSR STANDING CONSULTATIVE COMMISSION ON THE
     SECOND REVIEW OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND
       THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-
                           BALLISTIC MISSILE SYSTEMS

          Pursuant to the provisions of Article XIV of the Treaty Between
    the United States of America and the Union of Soviet Socialist
    Republics on the Limitation of Anti-Ballistic Missile Systems of May
    26, 1972, which entered into force on October 3, 1972, and was amended
    by the Protocol thereto of July 3, 1974, the Parties together conducted
    a review of the Treaty after its second five-year period of operation.
    By agreement between the Parties, the review was conducted from
    November 9, 1982, to December 15, 1982, in a session of the Standing
    Consultative Commission specially convened for that purpose.
          During the course of the review, the Parties carefully examined
    the Preamble and Articles of the Treaty and Protocol and evaluated
    their implementation in the period covered by the review.
          The United States and the Soviet Union each reaffirmed its
    commitment to the aims and objectives of the Treaty, and to the process
    of consultation within the framework of the Standing Consultative
    Commission to promote the implementation of the objectives and
    provisions of the Treaty and the Protocol thereto of July 3, 1974.
                                     ______

                      Geneva, Switzerland--August 31, 1988

         United States Unilateral Statement Following ABM Treaty Review

          The United States and the Soviet Union conducted the third Review
    of the ABM Treaty as required at five-year intervals by the provisions
    of that Treaty. The Review was conducted from August 24, 1988 to August
    31, 1988. The U.S. Delegation was led by William F. Burns, Director of
    the Arms Control and Disarmament Agency.
          During the Review, the United States emphasized the importance of
    Soviet violations of the ABM Treaty, which are a threat to the
    viability of the Treaty. Throughout the Review Conference, the Soviet
    Union gave no indication that it was prepared to correct the violations
    without linking their agreement to do so to unacceptable demands.
          Specifically, the United States discussed with the Soviets its
    serious concern that the Soviet Union's deployment of a large phased-
    array radar near Krasnoyarsk constitutes a significant violation of a
    central element of the ABM Treaty. Such radars take years to build and
    are a key to providing a nation-wide defense--which is prohibited by
    the Treaty. The Treaty's restrictions on the location, orientation, and
    functions of such radars are, thus, essential provisions of the Treaty.
    Hence, the Krasnoyarsk violation is very serious, particularly when it
    is recognized that the radar constitutes one of a network of such
    radars that have the inherent potential for attack assessment in
    support of ballistic missile defense.
          In order for the Soviet Union to correct this violation, the
    Krasnoyarsk radar must be dismantled. The United States has been urging
    the Soviet Union for more than five years, both in the Standing
    Consultative Commission established by the Treaty and in other
    diplomatic channels, to correct this clear violation by dismantling the
    radar. During the Review, the U.S. outlined the specific Soviet actions
    necessary to correct this violation in a verifiable manner. The United
    States has also made clear that the continuing existence of the
    Krasnoyarsk radar makes it impossible to conclude any future arms
    agreements in the START or Defense and Space areas. The United States
    has observed a slowdown in construction, but this slowdown, or even a
    full construction freeze, would not be sufficient either to correct the
    Treaty violation or to meet U.S. concerns about the significant impact
    of the violation.
          The United States cannot continue indefinitely to tolerate this
    clear and serious Treaty violation. The violation must be corrected.
    Until the Krasnoyarsk radar is dismantled, it will continue to raise
    the issue of material breach and proportionate responses. Nothing that
    occurred during the Review Conference or its completion should be
    interpreted as derogating in any way from rights the U.S. has under
    international law with regard to any Soviet violation of the Treaty.
    Since the Soviet Union was not prepared to satisfy U.S. concerns with
    respect to the Krasnoyarsk radar violation at the Review Conference,
    the United States will have to consider declaring this continuing
    violation a material breach of the Treaty. In this connection, the
    United States reserves all its rights, consistent with international
    law, to take appropriate and proportionate responses in the future.
          During the ABM Treaty Review, the United States also discussed
    the violation of the ABM Treaty involving the illegally deployed radars
    at Gomel. The U.S. also reserves its rights to respond to this
    violation in an appropriate and proportionate manner. The United States
    also discussed with the Soviet Union a number of ABM-related compliance
    concerns, the totality of which suggests that the Soviet Union may be
    preparing a prohibited ABM territorial defense. This is a particularly
    serious concern. As the President has noted, such a development ``would
    have profound implications for the vital East-West balance. A
    unilateral Soviet territorial ABM capability acquired in violation of
    the ABM Treaty could erode our deterrent and leave doubts about its
    capability.''
          The U.S. continues to have deep, continuing concerns about the
    implications of the pattern of Soviet non-compliance with the ABM
    Treaty. As President Reagan observed in December 1987:

              No violations of a treaty can be considered to be a minor
            matter, nor can there be confidence in agreements if a country
            can pick and choose which provisions of an agreement it will
            comply with. . . . correcting their violations will be a true
            test of Soviet willingness to enter a more constructive
            relationship and broaden the basis for cooperation between our
            two countries on security matters.

          The U.S. will not accept Soviet violations or a double standard
    of Treaty compliance, and reserve the right to take appropriate and
    proportionate responses in the future.
                                     ______

                               September 1, 1988

      Soviet Statement in Connection with the Third Review of the Treaty
    Between the United States of America and the Union of Soviet Socialist
         Republics on the Limitation of Anti-Ballistic Missile Systems

          In accordance with the provisions of the Treaty Between the USSR
    and the United States on the Limitation of Anti-Ballistic Missile
    Systems, talks were held in Geneva August 24-31, 1988 between
    representatives of the USSR and the United States to review the Treaty
    after another five years of its operation.
          The Soviet side proceeded on the basis that the review should
    lead to the strengthening of the ABM Treaty, which is of key
    significance for ensuring further progress in the disarmament sphere
    and strengthening strategic stability and international security. The
    preservation and strengthening of this Treaty is the common concern of
    its participants--the USSR and the United States.
          The USSR delegation conducted all the discussions in a non-
    confrontational spirit, with the aim of seeking mutually acceptable
    decisions both as regards the political reaffirmation of the sides'
    commitment to the objectives and tasks of the Treaty, and as regards
    the quest for concrete technical decisions that could lead to the
    removal of mutual concerns in unclear situations that have arisen in
    the exchange of opinions between the sides.
          The Soviet delegation sought to ensure that the reaffirmation of
    commitment to the Treaty and the agreed outlines concerning ways of
    eliminating the two sides' concerns would be reflected in a joint
    statement or communique, that would be published as a result of the
    review of the Treaty's operation. Unfortunately, this proved impossible
    because of the American side's reluctance to give practical
    consideration to the Soviet side's concerns and its desire to reduce
    the entire review of the operation of the ABM Treaty to the acceptance
    by the Soviet side of the American demand for the dismantling of the
    Kranoyarsk radar station, which does not yet exist.
          On the basis of the results of the discussion, the American side
    published a unilateral statement which gives an unobjective assessment
    of the existing situation.
          The present statement by the USSR delegation sets forth the facts
    that give a true picture of the situation as regards compliance with
    the ABM Treaty and the nature of the discussions that took place.
          On the question of the radar station under construction in the
    Krasnoyarsk region, the Soviet side once again confirmed that this
    station is intended for the tracking of space objects and does not come
    under the ABM Treaty restrictions. Despite this, the United States
    continues to attribute missile attack warning functions to it. These
    American claims are based not on facts, but on assumptions, and
    subjective evaluations.
          In order to show goodwill, and in an attempt to remove the
    concern that had arisen on the part of the United States, we expressed
    readiness to dismantle the equipment of this station in a way that
    would be verifiable and would cause the United States no doubts, if an
    accord were reached on compliance with the ABM Treaty in the form in
    which it was signed in 1972.
          The American side also expressed concern in connection with the
    relocation of individual components of radar stations known in the
    United States as ``Pawn Shop'' and ``Flat Twin'' from the Sary Shagan
    testing range to the Gomel region, which the American side regards,
    without foundation, as the start of the deployment of ABM radar
    stations.
          On the basis of the facts we cited and a visit by U.S. official
    representatives to the Gomel region, the American side saw for itself
    that in fact the individual components of the ``Flat Twin'' radar
    station and the ``Pawn Shop'' van are being used in the region in
    question in order to set up measurement testing grounds for the testing
    and tuning of mirror antennas that are used widely in the country's
    national economy. These operations are in no way contrary to the ABM
    Treaty.
          At the same time, we stated that in the context of removing the
    two sides' concerns over questions of compliance with the ABM Treaty,
    the Soviet side would be prepared for a radical solution to the
    question of the remaining individual components of the ``Flat Twin''
    radar station and the ``Pawn Shop'' van to which the American side
    refers.
          The American side once again raised the question that the Soviet
    Union could be preparing an ABM defense system for its territory. Here,
    the assertions cited earlier were enumerated, assertions to which the
    Soviet side had supplied the necessary replies. Neither any one of the
    questions raised individually nor all of them together provide grounds
    for the expression of such concern by the United States.
          The Soviet side also submitted a number of constructive proposals
    which, in the event of their implementation, would promote the
    resolution of other questions raised on both sides, namely:

       To draw up an accord to the effect that the sides would
            inform each other beforehand about plans for the construction
            of large phased-array radar stations and indicate their
            purpose.
       To agree on features making it possible to distinguish ABM
            radar stations from other radar stations.
       To draw up procedures for the dismantling or destruction of
            ABM radar stations on testing ranges.
       To permit Soviet representatives to visit the American radar
            station in Greenland and the construction of a launch site for
            ``balloon rockets'' on Shemya Island, to enable the Soviet
            Union to study on the basis of factual material .U.S actions
            which, according to the information available, it assesses
            either as a violation of the Treaty (the Greenland radar
            station) or as a situation causing concern (the Shemya Island
            construction site).

          Unfortunately, our proposals did not meet with a positive
    response from the American side. Contrary to the true state of affairs,
    it continues to issue unfounded denials or to claim that it does not
    see that serious Soviet concerns exist with regard to U.S. compliance
    with Treaty commitments. The American side did not respond to some of
    our proposals, and its answers on the other questions cannot be deemed
    satisfactory.
          Nor did the American side show willingness to take any steps to
    rectify the violations of the ABM Treaty which it has conmiitted.
          Since 1975, the Soviet side has been expressing concern over the
    U.S. deployment of large phased-array radar stations of the ``Pave
    Paws'' type on U.S. territory and elsewhere. The essence of our concern
    is that these large radar stations have parameters sufficient to carry
    out the tasks of ABM radar stations. In conjunction with the radar
    station at the Grand Forks base, these stations could provide a radar
    base for an ABM defense of US territory, which is incompatible with the
    provisions of Article 1 of the ABM Treaty prohibiting the creation of a
    base for ABM defense of the country's territory.
          Particular concern is caused on the Soviet side by the U.S.
    violation of the ABM Treaty in the deployment of a new ``Pave Paws''
    large phased-array radar station in Greenland after the Treaty came
    into force, and the construction of a similar radar station in Britain.
    Under the ABM Treaty, the deployment of large phased-array radar
    stations having a potential exceeding 3 million watts is strictly
    regulated, taking into account the purpose of such radar stations.
    Missile attack warning radar stations with the above characteristics
    are permitted to be deployed only on the periphery of the national
    territory, oriented outward.
          The American large phased-array radar station at Thule
    (Greenland) has a potential considerably in excess of 3 million watts.
    The Thule region does not constitute a position on the perimeter of
    U.S. national territory. The American side itself has indicated that
    the radar station at Thule is intended for missile attack warning.
    Consequently, the deployment of a large phased-array radar station in
    the Thule region is a violation of the ABM Treaty.
          The construction that has begun of a similar radar station at
    Fylingdales (Britain) is a similar violation.
          The Soviet side also expressed other concerns with regard to U.S.
    compliance with the provision of the ABM Treaty.
          Seeking to find solutions to the specific issues that have
    arisen, the Soviet side demonstrated in practice its readiness to
    eliminate the two sides' concerns. Naturally, the quest for solutions
    should take place on a reciprocal basis and should not distract
    attention from the most important thing--the sides' reaffirmation of
    their commitment to the objectives and provisions of the ABM Treaty.
          Through no fault of ours, it proved impossible to achieve
    positive solutions to the questions examined at the talks. However, the
    Soviet side believes that joint efforts with the aim of seeking
    fundamental solutions could be continued, and we will work toward this.
    In particular a mechanism established by the Treaty exists for the
    examination of concerns expressed by the sides--the Standing
    Consultative Commission. The next session of the Soviet-American
    Standing Consultative Commission in Geneva in the fall of this year
    should be used specifically for this work, including work in accordance
    with instructions that could be given to the Standing Consultative
    Commission as a result of the forthcoming meeting between the USSR
    Foreign Minister and the U.S. Secretary of State.
                                     ______

                                October 1, 1993

      JOINT COMMUNIQUE: FOURTH REVIEW OF THE ANTI-BALLISTIC MISSILE (ABM)
                                     TREATY

          The Fourth Review of the Treaty on the Limitation of Anti-
    Ballistic Missile Systems was conducted in Geneva, Switzerland, from
    September 27 to October 1, 1993. The delegations that were present at
    the Review, representing the Republic of Belarus, the Russian
    Federation, Ukraine, and the United States of America, exchanged views
    on the operation of the Treaty, on rights and obligations under the
    Treaty, and on the question of state succession. Commitment to the ABM
    Treaty was reaffirmed and it was agreed that maintaining the viability
    of the Treaty in view of political and technological changes remains
    important. The delegations at the Review advocated continued efforts to
    strengthen the ABM Treaty.
                                     ______

                        PUBLIC LAW 106-38--JULY 22, 1999

                                 113 STAT. 205

    Public Law 106-38
    106th Congress

                                     An Act

        To declare it to be the policy of the United States to deploy a
                           national missile defense.

          Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

          This Act may be cited as the ``National Missile Defense Act of
    1999''.

    SEC. 2. NATIONAL MISSILE DEFENSE POLICY.

          It is the policy of the United States to deploy as soon as is
    technologically possible an effective National Missile Defense system
    capable of defending the territory of the United States against limited
    ballistic missile attack (whether accidental, unauthorized, or
    deliberate) with funding subject to the annual authorization of
    appropriations and the annual appropriation of funds for National
    Missile Defense.

    SEC. 3. POLICY ON REDUCTION OF RUSSIAN NUCLEAR FORCES.

          It is the policy of the United States to seek continued
    negotiated reductions in Russian nuclear forces.

        Approved July 22, 1999.

    _______________________________________________________________________

    legislative history H.R. 4 (S. 257) (S. 269):
    house reports: No. 106-39, Pt. 1 (Comm. on Armed Services).
    senate reports: No. 106-4 accompanying S. 257 (Comm. on Armed
    Services).
    congressional record, Vol. 145 (1999):
            Mar. 18, considered and passed House.
            May 18, considered and passed Senate, amended, in lieu of S.
    257
            May 20, House concurred in Senate amendment.
    weekly compilation of presidential documents, Vol. 35 (1999):
            July 23, Presidential statement.
                                     ______

                      For Immediate Release--July 23, 1999

                                THE WHITE HOUSE

                         office of the press secretary

                           STATEMENT BY THE PRESIDENT

          I have signed into law H.R. 4, the ``National Missile Defense Act
    of 1999.'' My Administration is committed to addressing the growing
    danger that rogue nations may develop and field long-range missiles
    capable of delivering weapons of mass destruction against the United
    States and our allies.
          Section 2 of this Act states that it is the policy of the United
    States to deploy as soon as technologically possible an effective
    National Missile Defense (NMD) system with funding subject to the
    annual authorization of appropriations and the annual appropriation of
    funds for NMD. By specifying that any NMD deployment must be subject to
    the authorization and appropriations process, the legislation makes
    clear that no decision on deployment has been made. This
    interpretation, which is confirmed by the legislative record taken as a
    whole, is also required to avoid any possible impairment of my
    constitutional authorities.
          Section 3 of the Act states that it is the policy of the United
    States to seek continued negotiated reductions in Russian nuclear
    forces. Thus, section 3 puts the Congress on record as continuing to
    support negotiated reductions in strategic nuclear arms, reaffirming my
    Administration's position that our missile defense policy must take
    into account our arms control and nuclear nonproliferation objectives.
          Next year, we will, for the first time, determine whether to
    deploy a limited National Missile Defense, when we review the results
    of flight tests and other developmental efforts, consider cost
    estimates, and evaluate the threat. Any NMD system we deploy must be
    operationally effective, cost-effective, and enhance our security. In
    making our determination, we will also review progress in achieving our
    arms control objectives, including negotiating any amendments to the
    ABM treaty that may be required to accommodate a possible NMD
    deployment.
                                     ______

    Statement of Senator Thad Cochran on the Statement of the President of
                 the United States on Signing Public Law 106-38

              NATIONAL MISSILE DEFENSE ACT (Senate--July 26, 1999)

        Mr. COCHRAN. Mr. President, this morning I noticed in the
    Washington Times newspaper that President Clinton has signed the bill
    we authored here in the Senate, the National Missile Defense Act. This
    is very important legislation which the Senate passed after a lot of
    debate. The House and the Senate then reconciled differences between
    the House-passed measure and the Senate bill and sent the bill to the
    President.
        The President made a statement in connection with his signing the
    bill which raises some questions that I thought should be addressed by
    a comment this morning. After talking about the fact that he is signing
    the bill to address the growing danger that rogue nations may develop
    and field long-range missiles capable of delivering weapons of mass
    destruction against the United States and our allies, he then has this
    to say in his message. He is referring to the fact that authorization
    and appropriations measures will be a part of the process in terms of
    when and how and to what extent the funding is available for national
    missile defense.

            This interpretation, which is confirmed by the legislative
            record taken as a whole, is also required to avoid a possible
            impairment of my constitutional authorities.

        The President is suggesting that the bill doesn't mean what it
    says. I think that has to be brought to the attention of the Senate.
    The bill is very clear. It provides that it is the policy of the United
    States, upon enactment of this law, to deploy a national missile
    defense system as soon as technologically possible. That is
    unequivocal. It does not say ``but if.'' It is a change in policy of
    our Government. It has passed both Houses by a large majority, and now
    the President has signed the statute.
        It seems to me the President is trying to reinterpret the bill to
    justify changing his position on this issue. He signed the bill; he
    didn't veto it. This is not a veto message. He could have vetoed the
    bill, if he disagreed with the terms, and given Congress an opportunity
    to review that veto message and override the veto or sustain it, as the
    Congress' will dictates.
        I point this out to suggest that it is clear we have changed our
    policy, irrespective of the President's qualms about the new policy,
    and we now are committed as a nation to deploy a national missile
    defense system. We will do so in the orderly course of authorization
    and appropriation bills that we pass, as required. We have an annual
    appropriations bill funding all of the activities of the Department of
    Defense. But it is clear that one of those activities will be the
    continued research, development, and deployment of a national missile
    defense system.
        I think it is very timely to point this out because the Prime
    Minister of Russia is coming to the United States. There will be talks
    this week with the President.
        I am hopeful, and I urge the President to be honest with the
    Russian leadership about the need to modify the Anti-Ballistic Missile
    Treaty because the first part of that treaty says that neither
    signatory will deploy a missile defense system to protect the territory
    of its nation. But we have just changed the law of the United States to
    say that is our intention. We are committed to deploying a missile
    defense system that will protect the territory of the United States.
        So, insofar as that is inconsistent with the Anti-Ballistic Missile
    Treaty, the treaty needs to be changed, and our President should say
    that to the Prime Minister of Russia unequivocally--not we ``may''
    change our mind when it comes time to authorize a deployment or to fund
    a deployment.
        The decision has been made to deploy a system, and when technology
    permits us to deploy an effective missile defense system under the
    terms of this act, we are going to do it irrespective of the provisions
    of that treaty. So we must change the treaty. And we want to assure the
    Russians that we are not targeting them. We are not trying to create a
    new era of tension or competition or to make this a more dangerous
    relationship--just the opposite; we want to be aboveboard, candid, and
    honest with the Russians.
                                     ______

                                 Report of the

     COMMISSION TO ASSESS THE BALLISTIC MISSILE THREAT TO THE UNITED STATES

                               EXECUTIVE SUMMARY

                   Pursuant to Public Law 201--104th Congress

                                 July 15, 1998

                     Commission to Assess the Ballistic Missile
                                   Threat to the United States,
                                         Washington, DC, July 15, 1998.
    The Honorable Newt Gingrich,
    Speaker of the U.S. House of Representatives,
    Washington, DC.

        Dear Mr. Speaker: In accordance with section 1323 of the National
    Defense Authorization Act for Fiscal Year 1997 (P.L. 104-201), we
    hereby submit the report of the Commission to Assess the Ballistic
    Missile Threat to the United States.
        The Commission was established to ``assess the nature and magnitude
    of the existing and emerging ballistic missile threat to the United
    States'' and to ``submit to the Congress a report on its findings and
    conclusions.''
        The Commission's report is unanimous.
        It has been an honor to serve.

                Respectfully submitted,
                        Donald H. Rumsfeld, Chairman
                        Barry M. Blechman
                        G. Lee Butler
                        Richard L. Garwin
                        William R. Graham
                        William Schneider, Jr.
                        Larry D. Welch
                        Paul D. Wolfowitz
                        R. James Woolsey

    [Copies to:]

    The Honorable Trent Lott,
    Majority Leader,
    U.S. Senate,
    Washington, DC.

    The Honorable Tom Daschle,
    Minority Leader,
    U.S. Senate,
    Washington, DC.

    The Honorable Richard A. Gephardt,
    Minority Leader,
    U.S. House of Representatives,
    Washington, DC.

        Enclosure.

    Members of The Commission To Assess the Ballistic Missile Threat to the
                                 United States

                             were nominated by the

     Speaker of the U.S. House of Representatives, the Majority Leader of
      the U.S. Senate and the Minority Leaders of the U.S. Senate and the
                         U.S. House of Representatives

                   The Honorable Donald H. Rumsfeld, Chairman

                             Dr. Barry M. Blechman

                   General Lee Butler, U.S. Air Force (Ret.)

                             Dr. Richard L. Garwin

                             Dr. William R. Graham

                           Dr. William Schneider, Jr.

                 General Larry D. Welch, U.S. Air Force (Ret.)

                             Dr. Paul D. Wolfowitz

                         The Honorable R. James Woolsey

                              and appointed by the

                        Director of Central Intelligence

                          I. Charter and Organization

                     a. statutory charter of the commission
        The Commission To Assess the Ballistic Missile Threat to the United
    States was established pursuant to Public Law 104-201, the National
    Defense Authorization Act for Fiscal Year 1997, Section 1321.
        The mandate of the Commission was as follows:

              ``The Commission shall assess the nature and magnitude of the
            existing and emerging ballistic missile threat to the United
            States. In carrying out its duties, the Commission should
            receive the full and timely cooperation of the Secretary of
            Defense, the Director of Central Intelligence and any other
            United States Government official responsible for providing the
            Commission with analyses, briefings and other information
            necessary for the fulfillment of its responsibilities. The
            Commission shall, not later than six months after the date of
            its first meeting, submit to the Congress a report on its
            findings and conclusions.''

        The Commission examined the ballistic missile threat posed to the
    50 states. Our assessment included threats posed by ballistic missiles:

       Deployed on the territory of a potentially hostile state.
       Launched from a surface vessel or submarine operating off
            the coasts of the U.S. or from an aircraft.
       Deployed by a potentially hostile nation on the territory of
            a third party to reduce the range required of its ballistic
            missiles to strike the United States.

        The Commission examined the potential of both existing and emerging
    powers to arm ballistic missiles with weapons of mass destruction. The
    examination included the domestic design, development and production of
    nuclear material and nuclear weapons as well as the potential for
    states to acquire--through clandestine or covert sale, transfer or
    theft--either technology; material or weapons. The Commission examined
    biological and chemical weapons programs of the ballistic missile
    powers, as well as the potential means for delivering such agents by
    ballistic missiles.
        The Commission reviewed U.S. collection and analysis capabilities
    to gain an appreciation for the capability of the U.S. Intelligence
    Community, today and into the future, to warn of the ballistic missile
    threat.
        The Commission did not examine in detail the threat posed to U.S.
    territories or possessions or to U.S. forward-deployed forces, allies
    and friends. Nevertheless, a short discussion of the threat to U.S.
    forward deployed forces, allies and friends is presented. The
    Commission did not assess the cruise missile threat. A detailed
    examination would have taken it beyond its charter. However, the
    Commission is of the view that cruise missiles have a number of
    characteristics which could be seen as increasingly valuable in
    fulfilling the aspirations of emerging ballistic missile states. The
    Commission did not address in detail the impact of ballistic missile
    threats on U.S. military strategy and doctrine, but noted the
    difficulty the U.S had in dealing with Iraqi missiles during the
    Persian Gulf War. A brief discussion is presented of the possible
    impact of the Year 2000 (Y2K) problem on the ballistic missile threat.
    A brief discussion is also presented of the relationship of ballistic
    missile threats to the ongoing revolution in military affairs.
        The Commission was not asked to address the policy issues on which
    its assessment would bear. Responses to the threat as assessed by the
    Commission are matters of considerable public interest. Debate and
    agreement on the appropriate responses to the ballistic missile threat
    are needed. The Commission hopes that the following assessment will be
    helpful in that regard.
                         b. organization of the report
        This is an unclassified Executive Summary of the classified Report
    of the Commission To Assess the Ballistic Missile Threat to the United
    States, which runs to more than 300 pages, including text and graphics.
    The full Report is accompanied by two classified appendices and one
    unclassified appendix (the table of contents of Appendix III is listed
    in Attachment 2).
        The full Report includes discussions of a number of additional
    states, such as Libya and Syria, which are not included in this
    Executive Summary. The full Report includes as well a discussion of the
    full range of supplier states, particularly Western powers, including
    the United States.

                             II. Executive Summary

                      a. conclusions of the commissioners
        The nine Commissioners are unanimous in concluding that:

       Concerted efforts by a number of overtly or potentially
            hostile nations to acquire ballistic missiles with biological
            or nuclear payloads pose a growing threat to the United States,
            its deployed forces and its friends and allies. These newer,
            developing threats in North Korea, Iran and Iraq are in
            addition to those still posed by the existing ballistic missile
            arsenals of Russia and China, nations with which the United
            States is not now in conflict but which remain in uncertain
            transitions. The newer ballistic missile-equipped nations'
            capabilities will not match those of U.S. systems for accuracy
            or reliability. However, they would be able to inflict major
            destruction on the U.S. within about five years of a decision
            to acquire such a capability (10 years in the case of Iraq).
            During several of those years, the U.S. might not be aware that
            such a decision had been made.
       The threat to the U.S. posed by these emerging capabilities
            is broader, more mature and evolving more rapidly than has been
            reported in estimates and reports by the Intelligence
            Community.
       The Intelligence Community's ability to provide timely and
            accurate estimates of ballistic missile threats to the U.S. is
            eroding. This erosion has roots both within and beyond the
            intelligence process itself. The Community's capabilities in
            this area need to be strengthened in terms of both resources
            and methodology.
       The warning times the U.S. can expect of new, threatening
            ballistic missile deployments are being reduced. Under some
            plausible scenarios--including re-basing or transfer of
            operational missiles, sea- and air-launch options, shortened
            development programs that might include testing in a third
            country, or some combination of these--the U.S. might well have
            little or no warning before operational deployment.

        Therefore, we unanimously recommend that U.S. analyses, practices
    and policies that depend on expectations of extended warning of
    deployment be reviewed and, as appropriate, revised to reflect the
    reality of an environment in which there may be little or no warning.
                       b. the commission and its methods
        The Commissioners brought to their task the perspectives of former
    senior policymakers from outside the Intelligence Community who have
    decades of experience and a variety of views as users of the
    Intelligence Community's products. We shared an informed understanding
    of intelligence processes. In making our assessment, we took into
    account not only the hard data available, but also the often
    significant gaps in that data. We had access to both data and experts
    drawn from the full array of departments and agencies as well as from
    sources throughout the Intelligence Community. We also drew on experts
    from outside that Community and on studies sponsored by the Commission.
    Our aim was to ensure that we were exposed to a wide range of opinion
    and to the greatest possible depth and breadth of analysis.
        We began this study with different views about how to respond to
    ballistic missile threats, and we continue to have differences.
    Nevertheless, as a result of our intensive study over the last six
    months we are unanimous in our assessment of the threat, an assessment
    which differs from published intelligence estimates.
        This divergence between the Commission's findings and authoritative
    estimates by the Intelligence Community stems primarily from our use of
    a somewhat more comprehensive methodology in assessing ballistic
    missile development and deployment programs. We believe that our
    approach takes more fully into account three crucial factors now
    shaping new ballistic missile threats to the United States:

       Newer ballistic missile and weapons of mass destruction
            (WMD) development programs no longer follow the patterns
            initially set by the U.S. and the Soviet Union. These programs
            require neither high standards of missile accuracy, reliability
            and safety nor large numbers of missiles and therefore can move
            ahead more rapidly.
       A nation that wants to develop ballistic missiles and
            weapons of mass destruction can now obtain extensive technical
            assistance from outside sources. Foreign assistance is not a
            wild card. It is a fact.
       Nations are increasingly able to conceal important elements
            of their ballistic missile and associated WMD programs and are
            highly motivated to do so.

              c. new threats in a transformed security environment
        The Commission did not assess nuclear, biological and chemical
    weapons programs on a global basis. We considered those countries about
    which we felt particular reason to be concerned and examined their
    capabilities to acquire ballistic missiles armed with weapons of mass
    destruction.
        All of the nations whose programs we examined that are developing
    long-range ballistic missiles have the option to arm these, as well as
    their shorter range systems, with biological or chemical weapons. These
    weapons can take the form of bomblets as well as a single, large
    warhead.
        The knowledge needed to design and build a nuclear weapon is now
    widespread. The emerging ballistic missile powers have access to, or
    are pursuing the acquisition of, the needed fissile material both
    through domestic efforts and foreign channels.
        As our work went forward, it became increasingly clear to us that
    nations about which the U.S. has reason to be concerned are exploiting
    a dramatically transformed international security environment. That
    environment provides an ever-widening access to technology, information
    and expertise that can be and is used to speed both the development and
    deployment of ballistic missiles and weapons of mass destruction. It
    can also be used to develop denial and deception techniques that seek
    to impede U.S. intelligence gathering about the development and
    deployment programs of those nations.
    1. Geopolitical Change and Role for Ballistic Missiles
        A number of countries with regional ambitions do not welcome the
    U.S. role as a stabilizing power in their regions and have not accepted
    it passively. Because of their ambitions, they want to place restraints
    on the U.S. capability to project power or influence into their
    regions. They see the acquisition of missile and WMD technology as a
    way of doing so.
        Since the end of the Cold War, the geopolitical environment and the
    roles of ballistic missiles and weapons of mass destruction have both
    evolved. Ballistic missiles provide a cost-effective delivery system
    that can be used for both conventional and non-conventional weapons.
    For those seeking to thwart the projection of U.S. power, the
    capability to combine ballistic missiles with weapons of mass
    destruction provides a strategic counter to U.S. conventional and
    information-based military superiority. With such weapons, these
    nations can pose a serious threat to the United States, to its forward-
    based forces and their staging areas and to U.S. friends and allies.
        Whether short- or long-range, a successfully launched ballistic
    missile has a high probability of delivering its payload to its target
    compared to other means of delivery. Emerging powers therefore see
    ballistic missiles as highly effective deterrent weapons and as an
    effective means of coercing or intimidating adversaries, including the
    United States.
    2. Russia
        With regard to Russia, the principal cloud over the future is
    lingering political uncertainty. Despite enormous changes since the
    break-up of the Soviet Union, Russia is in an uncertain, in some ways
    precarious, transition. It may succeed in establishing a stable
    democracy allied with the West in maintaining peace and extending
    freedom. Or it may not. Or it might be torn by internal struggles for
    an extended period. In its present situation, accurate U.S.
    intelligence estimates are difficult to make.
        Russia continues to pose a ballistic missile threat to the United
    States, although of a different character than in the past. The number
    of missiles in its inventory is likely to decline further compared with
    Cold War levels in that large numbers of Soviet strategic missiles
    deployed in the 1970s and 1980s are scheduled to be retired. Still,
    Russian ballistic missile forces continue to be modernized and
    improved, although the pace of modernization has been slowed from
    planned schedules by economic constraints. The Russian ballistic
    missile early warning system and nuclear command and control (C2)
    system have also been affected by aging and delays in planned
    modernization. In the context of a crisis growing out of civil strife,
    present early warning and C2 weaknesses could pose a risk of
    unauthorized or inadvertent launch of missiles against the United
    States.\1\
    ---------------------------------------------------------------------------
        \1\ An unauthorized launch is one that has not received the
    required authorizations from senior political leaders and that might be
    conducted by elements within the General Staff or subordinate
    commanders. An inadvertent launch is one resulting from a mistaken
    assessment of sensor data, including from ballistic missile early
    warning systems, or a misinterpretation of the strategic situation or
    some combination of the two, especially in times of crisis generated
    either by domestic or international events.
    ---------------------------------------------------------------------------
        With the Cold War ended, the likelihood of a deliberate missile
    attack on the U.S. from Russia has been greatly lessened but not
    entirely eliminated. However, Russia's leaders issued a new national
    security policy in 1993 that places greater reliance on nuclear
    deterrence, very likely in response to Russia's economic difficulties
    and decline in its conventional military capabilities. At the same
    time, the risk of an accident or of a loss of control over Russian
    ballistic missile forces--a risk which now appears small--could
    increase sharply and with little warning if the political situation in
    Russia were to deteriorate.
        Also, quite apart from these risks, Russia poses a threat to the
    U.S. as a major exporter of enabling technologies, including ballistic
    missile technologies, to countries hostile to the United States. In
    particular, Russian assistance has greatly accelerated Iran's ballistic
    missile program.
    3. China
        As in the case of Russia, China's future is clouded by a range of
    uncertainties. China, too, is going through a transition, but one which
    has been going on for 20 years. The improvement in Sino-U.S. relations,
    interrupted in 1989, has resumed. Although the U.S. and China are
    developing a more cooperative relationship, significant potential
    conflicts remain, and China is less constrained today by fear of Russia
    than it once was by fear of the Soviet Union. Taiwan is an obvious
    potential flashpoint. Other flashpoints could arise as China pursues
    its drive for greater influence in Asia and the Western Pacific. Even
    now China has conflicts with several of its neighbors, some of which
    could involve the U.S. in a confrontation.
        China is modernizing its long-range missiles and nuclear weapons in
    ways that will make it a more threatening power in the event of a
    crisis. China's 1995-96 missile firings in the Taiwan Strait, aimed at
    intimidating Taiwan in the lead-up to its presidential election,
    provoked a sharp confrontation with the United States. For example, a
    pointed question was posed by Lt. Gen. Xiong Guang Kai, a frequent
    spokesman for Chinese policy, about U.S. willingness to trade Los
    Angeles for Taipei. This comment seemed designed to link China's
    ballistic missile capabilities with its regional priorities.
        China also poses a threat to the U.S. as a significant proliferator
    of ballistic missiles, weapons of mass destruction and enabling
    technologies. It has carried out extensive transfers to Iran's solid-
    fueled ballistic missile program. It has supplied Pakistan with a
    design for a nuclear weapon and additional nuclear weapons assistance.
    It has even transferred complete ballistic missile systems to Saudi
    Arabia (the 3,100-km-range CSS-2) and Pakistan (the 350-km-range M-11).
        The behavior thus far of Russia and China makes it appear unlikely,
    albeit for different reasons--strategic, political, economic or some
    combination of all three--that either government will soon effectively
    reduce its country's sizable transfer of critical technologies, experts
    or expertise to the emerging ballistic missile powers.
    4. Countries With Scud-Based Missile Infrastructures
        The basis of most missile developments by emerging ballistic
    missile powers is the Soviet Scud missile and its derivatives. The Scud
    is derived from the World War II-era German V-2 rocket. With the
    external help now readily available, a nation with a well-developed,
    Scud-based ballistic missile infrastructure would be able to achieve
    first flight of a long-range missile, up to and including
    intercontinental ballistic missile (ICBM) range,\2\ within about five
    years of deciding to do so. During several of those years the U.S.
    might not be aware that such a decision had been made. Early production
    models would probably be limited in number. They would be unlikely to
    meet U.S. standards of safety, accuracy and reliability. But the
    purposes of these nations would not require such standards. A larger
    force armed with scores of missiles and warheads and meeting higher
    operational standards would take somewhat longer to test, produce and
    deploy. But meanwhile, even a few of the simpler missiles could be
    highly effective for the purposes of those countries.
    ---------------------------------------------------------------------------
        \2\ An ICBM has a range greater than 5,500 km.
    ---------------------------------------------------------------------------
        The extraordinary level of resources North Korea and Iran are now
    devoting to developing their own ballistic missile capabilities poses a
    substantial and immediate danger to the U.S., its vital interests and
    its allies. While these nations' missile programs may presently be
    aimed primarily at regional adversaries, they inevitably and
    inescapably engage the vital interests of the U.S. as well. Their
    targeted adversaries include key U.S. friends and allies. U.S. deployed
    forces are already at risk from these nations' growing arsenals. Each
    of these nations places a high priority on threatening U.S. territory,
    and each is even now pursuing advanced ballistic missile capabilities
    to pose a direct threat to U.S. territory.
                a. North Korea
        There is evidence that North Korea is working hard on the Taepo
    Dong 2 (TD-2) ballistic missile. The status of the system's development
    cannot be determined precisely. Nevertheless, the ballistic missile
    test infrastructure in North Korea is well developed. Once the system
    is assessed to be ready, a test flight could be conducted within six
    months of a decision to do so. If North Korea judged the test to be a
    success, the TD-2 could be deployed rapidly. It is unlikely the U.S.
    would know of such a decision much before the missile was launched.
    This missile could reach major cities and military bases in Alaska and
    the smaller, westernmost islands in the Hawaiian chain. Light-weight
    variations of the TD-2 could fly as far as 10,000 km, placing at risk
    western U.S. territory in an arc extending northwest from Phoenix,
    Arizona, to Madison, Wisconsin. These variants of the TD-2 would
    require additional time to develop and would likely require an
    additional flight test.
        North Korea has developed and deployed the No Dong, a medium-range
    ballistic missile \3\ (MRBM) using a scaled-up Scud engine, which is
    capable of flying 1,300 km. With this missile, North Korea can threaten
    Japan, South Korea and U.S. bases in the vicinity of North Korea. North
    Korea has reportedly tested the No Dong only once, in 1993. The
    Commission judges that the No Dong was operationally deployed long
    before the U.S. Government recognized that fact. There is ample
    evidence that North Korea has created a sizable missile production
    infrastructure, and therefore it is highly likely that considerable
    numbers of No Dongs have been produced.
    ---------------------------------------------------------------------------
        \3\ An MRBM has a range of 1,000 to 3,000 km.
    ---------------------------------------------------------------------------
        In light of the considerable difficulties the Intelligence
    Community encountered in assessing the pace and scope of the No Dong
    missile program, the U.S. may have very little warning prior to the
    deployment of the Taepo Dong 2.
        North Korea maintains an active WMD program, including a nuclear
    weapon program. It is known that North Korea diverted material in the
    late 1980s for at least one or possibly two weapons. North Korea's
    ongoing nuclear program activity raises the possibility that it could
    produce additional nuclear weapons. North Korea also possesses
    biological weapons production and dispensing technology, including the
    capability to deploy chemical or biological warheads on missiles.
        North Korea also poses a major threat to American interests, and
    potentially to the United States itself, because it is a major
    proliferator of the ballistic missile capabilities it possesses--
    missiles, technology, technicians, transporter-erector-launchers (TELs)
    and underground facility expertise--to other countries of missile
    proliferation concern. These countries include Iran, Pakistan and
    others.
                b. Iran
        Iran is placing extraordinary emphasis on its ballistic missile and
    WMD development programs. The ballistic missile infrastructure in Iran
    is now more sophisticated than that of North Korea, and has benefited
    from broad, essential, long-term assistance from Russia and important
    assistance from China as well. Iran is making very rapid progress in
    developing the Shahab 3 MRBM, which like the North Korean No Dong has a
    range of 1,300 km. This missile may be flight tested at any time and
    deployed soon thereafter.
        The Commission judges that Iran now has the technical capability
    and resources to demonstrate an ICBM-range ballistic missile, similar
    to the TD-2 (based on scaled-up Scud technology), within five years of
    a decision to proceed--whether that decision has already been made or
    is yet to be made.
        In addition to this Scud-based long-range ballistic missile
    program, Iran has acquired and is seeking major, advanced missile
    components that can be combined to produce ballistic missiles with
    sufficient range to strike the United States. For example, Iran is
    reported to have acquired engines or engine designs for the RD-214
    engine, which powered the Soviet SS-4 MRBM and served as the first
    stage of the SL-7 space-launch vehicle. Iran is known to have an
    interest in even more advanced engines. A 10,000 km-range Iranian
    missile could hold the U.S. at risk in an arc extending northeast of a
    line from Philadelphia, Pennsylvania, to St. Paul, Minnesota.
        Iran has also developed a solid-fueled rocket infrastructure; it
    already produces short-range solid-fueled rockets. It is seeking long-
    range missile technology from outside sources, purportedly for a space-
    launch vehicle. Both contribute directly to Iran's ballistic missile
    technology base. Iran is known to rely heavily on imports of missile
    technology from foreign sources, particularly Russia and North Korea.
    These imports have allowed Iran's missile programs to proceed swiftly,
    and they can be incorporated into Iran's domestic infrastructure as
    well.
        Iran is developing weapons of mass destruction. It has a nuclear
    energy and weapons program which aims to design, develop and, as soon
    as possible, produce nuclear weapons. The Commission judges that the
    only issue as to whether or not Iran may soon have or already has a
    nuclear weapon is the amount of fissile material available to it.
    Because of significant gaps in our knowledge, the U.S. is unlikely to
    know whether Iran possesses nuclear weapons until after the fact. While
    Iran's civil nuclear program is currently under International Atomic
    Energy Agency (IAEA) safeguards, it could be used as a source of
    sufficient fissile material to construct a small number of weapons
    within the next 10 years if Iran were willing to violate safeguards. If
    Iran were to accumulate enough fissile material from foreign sources,
    it might be able to develop a nuclear weapon in only one to three
    years. Iran also has an active chemical weapon development and
    production program and is conducting research into biological weapons.
                c. Iraq
        Iraq has maintained the skills and industrial capabilities needed
    to reconstitute its long-range ballistic missile program. Its plant and
    equipment are less developed than those of North Korea or Iran as a
    result of actions forced by United Nations (U.N.) Resolutions and
    monitoring. However, Iraq has actively continued work on short-range
    (under 150 km) liquid- and solid-fueled missiles, programs allowed by
    the U.N. Resolutions. Once U.N.-imposed controls are lifted, Iraq could
    mount a determined effort to acquire needed plant and equipment,
    whether directly or indirectly. Such an effort would allow Iraq to pose
    an ICBM threat to the United States within 10 years. Iraq could develop
    a shorter range, covert, ship-launched missile threat that could
    threaten the United States in a very short time.
        Iraq had a large, intense ballistic missile development and
    production program prior to the Gulf War. The Iraqis produced Scuds and
    then modified Scud missiles to produce the 600-km-range Al Hussein and
    900-km-range Al Abbas missiles. The expertise, as well as some of the
    equipment and materials from this program remain in Iraq and provide a
    strong foundation for a revived ballistic missile program.
        Prior to the invasion of Kuwait in 1990, Iraq could have had
    nuclear weapons in the 1993-1995 time frame, although it still had
    technical hurdles to overcome. After the invasion of Kuwait, Iraq began
    a crash program to produce a nuclear device in six to nine months based
    on highly enriched uranium removed from the safeguarded reactor at
    Tuwaitha. Iraq has the capability to reconstitute its nuclear weapon
    program; the speed at which it can do so depends on the availability of
    fissile material. It would take several years to build the required
    production facilities from scratch. It is possible that Iraq has hidden
    some material from U.N. Special Commission (UNSCOM) inspection or that
    it could acquire fissile material abroad (from another ``rogue'' state,
    for example). Iraq also had large chemical and biological weapons
    programs prior to the war and produced chemical and biological warheads
    for its missiles. Knowledge, personnel and equipment related to WMD
    remain in Iraq so that it could reconstitute these programs rapidly
    following the end of sanctions.
    5. India
        India is developing a number of ballistic missiles from short-range
    to those with ICBM-class capabilities, along with a submarine-launched
    ballistic missile (SLBM) and a short-range, surface ship-launched
    system. India has the infrastructure to develop and produce these
    missiles. It is aggressively seeking technology from other states,
    particularly Russia. While it develops its long-range ballistic
    missiles, India's space-launch vehicles provide an option for an
    interim ICBM capability. India has detonated several nuclear devices,
    and it is clear that it is developing warheads for its missile systems.
    India has biological and chemical weapons programs. Since the Pakistani
    nuclear tests, India has announced its intention to increase its
    spending on missiles and nuclear weapons.
        India's program to develop ballistic missiles began in 1983 and
    grew out of its space-launch program, which was based on Scout rocket
    technology acquired from the United States. India currently has
    developed and deployed the Prithvi short-range ballistic missile \4\
    (SRBM), and is developing longer range, liquid- and solid-fueled
    missiles. They include the Prithui II SRBM, the Agni, Agni-Plus and
    Agni-B intermediate-range ballistic missiles \5\ (IRBMs), a sea-
    launched ballistic missile and an SLBM, the Sagarika.
    ---------------------------------------------------------------------------
        \4\ An SRBM has a range of less than 1,000 km.
        \5\ An IRBM has a range of 3,000 to 5,500 km.
    ---------------------------------------------------------------------------
        India detonated a nuclear device in 1974, conducted a test series
    in May 1998, and it is clear that it is developing warheads for its
    missile systems. Indian leaders recently declared that India has
    developed nuclear weapons for deployment on the Prithui SRBM and the
    Agni Plus MRBM.
        India his acquired and continues to seek Russian, U.S. and Western
    European technology for its missile programs. Technology and expertise
    acquired from other states, particularly from Russia, are helping India
    to accelerate the development and increase the sophistication of its
    missile systems. For example, Russian assistance is critical to the
    development of the Indian SLBM and its related submarine. But India is
    rapidly enhancing its own missile science and technology base as well.
    Many Indian nationals are educated and work in the U.S., Europe and
    other advanced nations; some of the knowledge thereby acquired returns
    to the Indian missile program. While India continues to benefit from
    foreign technology and expertise, its programs and industrial base are
    now sufficiently advanced that supplier control regimes can affect only
    the rate of acceleration in India's programs. India is in a position to
    supply material and technical assistance to others.
    6. Pakistan
        Pakistan's ballistic missile infrastructure is now more advanced
    than that of North Korea. It will support development of a missile of
    2,500-km range, which we believe Pakistan will seek in order to put all
    of India within range of Pakistani missiles. The development of a
    2,500-km missile will give Pakistan the technical base for developing a
    much longer range missile system. Through foreign acquisition, and
    beginning without an extensive domestic science and technology base,
    Pakistan has acquired these missile capabilities quite rapidly. China
    and North Korea are Pakistan's major sources of ballistic missiles,
    production facilities and technology.
        Pakistan currently possesses nuclear-capable M-11 SRBMs acquired
    from China, and it may produce its own missile, the Tarmuk, based on
    the M-11. In 1998, Pakistan tested and deployed the 1,300-km-Ghauri
    MRBM, a version of the North Korean No Dong, and the Commission
    believes Pakistan has acquired production facilities for this missile
    as well.
        Pakistan possesses nuclear weapons that employ highly-enriched
    uranium and conducted its first nuclear weapon test series in May 1998.
    A new Pakistani nuclear reactor has been completed that could be used
    for the production of plutonium. In addition to its nuclear weapons,
    Pakistan has biological and chemical weapons programs. Chinese
    assistance has been crucial to Pakistan's nuclear weapons program.
        India and Pakistan are not hostile to the United States. The
    prospect of U.S. military confrontation with either seems at present to
    be slight. However, beyond the possibility of nuclear war on the
    subcontinent, their aggressive, competitive development of ballistic
    missiles and weapons of mass destruction poses three concerns in
    particular. First, it enables them to supply relevant technologies to
    other nations. Second, India and Pakistan may seek additional technical
    assistance through cooperation with their current major suppliers--
    India from Russia, Pakistan from North Korea and China--because of the
    threats they perceive from one another and because of India's anxieties
    about China, combined with their mounting international isolation.
    Third, their growing missile and WMD capabilities have direct effects
    on U.S. policies, both regional and global, and could significantly
    affect U.S. capability to play a stabilizing role in Asia.
                     d. a new non-proliferation environment
        Since the end of the Cold War a number of developments have made
    ballistic missile and WMD technologies increasingly available. They
    include:

       A number of nations have chosen not to join non-
            proliferation agreements.
       Some participants in those agreements have cheated.
       As global trade has steadily expanded, access has increased
            to the information, technology and technicians needed for
            missile and WMD development.
       Access to technologies used in early generations of U.S. and
            Soviet missiles has eased. However rudimentary compared to
            present U.S. standards, these technologies serve the needs of
            emerging ballistic missile powers.
       Among those countries of concern to the U.S., commerce in
            ballistic missile and WMD technology and hardware has been
            growing, which may make proliferation self-sustaining among
            them and facilitate their ability to proliferate technology and
            hardware to others.

        Some countries which could have readily acquired nuclear weapons
    and ballistic missiles--such as Germany, Japan and South Korea--have
    been successfully encouraged not to do so by U.S. security guarantees
    and by non-proliferation agreements. Even though they lack such
    security guarantees, other countries have also joined nonproliferation
    agreements and abandoned development programs and weapons systems. Some
    examples are Argentina, Brazil, South Africa and the former Soviet
    republics of Belarus, Kazakhstan and Ukraine.
    1. Increased Competence of and Trade Among Emerging Ballistic Missile
            Powers
        Conversely, there are other countries--some of which are themselves
    parties to various non-proliferation agreements and treaties--that
    either have acquired ballistic missile or WMD capabilities or are
    working hard to do so. North Korea, Iran and Iraq, as well as India and
    Pakistan, are at the forefront of this group. They now have increased
    incentives to cooperate with one another. They have extensive access to
    technology, information and expertise from developed countries such as
    Russia and China. They also have access through commercial and other
    channels in the West, including the United States. Through this trade
    and their own indigenous efforts, these second-tier powers are on the
    verge of being able to provide to one another, if they have not already
    done so, the capabilities needed to develop long-range ballistic
    missiles.
    2. U.S. as a Contributor to Proliferation
        The U.S. is the world's leading developer and user of advanced
    technology. Once it is transferred by the U.S. or by another developed
    country; there is no way to ensure that the transferred technology will
    not be used for hostile purposes. The U.S. tries to limit technology
    transfers to hostile powers, but history teaches that such transfers
    cannot be stopped for long periods. They can only be slowed and made
    more costly, and even that requires the cooperation of other developed
    nations. The acquisition and use of transferred technologies in
    ballistic missile and WMD programs has been facilitated by foreign
    student training in the U.S., by wide dissemination of technical
    information, by the illegal acquisition of U.S. designs and equipment
    and by the relaxation of U.S. export control policies. As a result, the
    U.S. has been and is today a major, albeit unintentional, contributor
    to the proliferation of ballistic missiles and associated weapons of
    mass destruction.
    3. Motives of Countries of Concern
        Recent ballistic missile and nuclear tests in South Asia should not
    be viewed as merely a sharp but temporary setback in the expanding
    reach of non-proliferation regimes. While policymakers may try to
    reverse or at least contain the trends of which these tests are a part,
    the missile and WMD programs of these nations are clearly the results
    of fundamental political calculations of their vital interests. Those
    nations willing and able to supply dangerous technologies and systems
    to one another, including Russia, China and their quasi-governmental
    commercial entities, may be motivated by commercial, foreign policy or
    national security interests or by a combination thereof. As noted, such
    countries are increasingly cooperating with one another, perhaps in
    some instances because they have reciprocal needs for what one has and
    the other lacks. The transfer of complete missile systems, such as
    China's transfer to Saudi Arabia, will continue to be available. Short
    of radical political change, there is every reason to assume that the
    nations engaged in these missile and WMD development activities will
    continue their programs as matters of high priority.
    4. Readier Market Access to Technology
        In today's increasingly market-driven, global economy, nations so
    motivated have faster, cheaper and more efficient access to modern
    technology. Commercial exchanges and technology transfers have
    multiplied the pathways to those technologies needed for ballistic
    missiles and weapons of mass destruction. These pathways reduce
    development times and costs, lowering both technical and budget
    obstacles to missile development and deployment.
        Expanding world trade and the explosion in information technology
    have accelerated the global diffusion of scientific, technical and
    industrial information. The channels--both public and private, legal
    and illegal--through which technology; components and individual
    technicians can be moved among nations have increased exponentially.
    5. Availability of Classified Information and Export-Controlled
            Technology
        Trends in the commercial sector of a market-driven, global economy
    have been accompanied, and in many ways accelerated, by an increased
    availability of classified information as a result of:

       Lax enforcement of export controls.
       Relaxation of U.S. and Western export controls.
       Growth in dual-use technologies.
       Economic incentives to sell ballistic missile components and
            systems.
       Extensive declassification of materials related to ballistic
            missiles and weapons of mass destruction.
       Continued, intense espionage facilitated by security
            measures increasingly inadequate for the new environment.
       Extensive disclosure of classified information, including
            information compromising intelligence sources and methods.
            Damaging information appears almost daily in the national and
            international media and on the Internet.

                 e. alternative ballistic missile launch modes
        In evaluating present threats, it is misleading to use old patterns
    of development as guides. The history of U.S. and Soviet missile and
    WMD development has become irrelevant. Approaches that the U.S.
    considered and specifically rejected on grounds of safety, reliability,
    accuracy and requirements for high volume production are in many cases
    well-suited to nations less concerned about safety and able to meet
    their needs with only a few, less accurate, less reliable weapons.
    Analytical approaches the Intelligence Community could realistically
    rely on in the past need to be restudied and reevaluated in light of
    this newer model.
        The Commission believes the U.S. needs to pay attention to the
    possibility that complete, long-range ballistic missile systems could
    be transferred from one nation to another, just as China transferred
    operational CSS-2s to Saudi Arabia in 1988. Such missiles could be
    equipped with weapons of mass destruction.
        One nation's use of another nation's territory also needs to be
    considered. The U.S. did this during the Cold War and the Soviet Union
    tried to do it in Cuba in the early 1960s. For example, if Iran were to
    deploy ballistic missiles in Libya, it could reduce the range required
    to threaten the U.S. as well as Europe. Given the existing patterns of
    cooperation the Commission has already seen, both testing by one
    country on the territory of another and deriving data from other-
    country tests are also distinct possibilities.
        Sea launch of shorter range ballistic missiles is another
    possibility. This could enable a country to pose a direct territorial
    threat to the U.S. sooner than it could by waiting to develop an ICBM
    for launch from its own territory. Sea launching could also permit it
    to target a larger area of the U.S. than would a missile fired from its
    home territory. India is working on a sea launch capability. Air launch
    is another possible mode of delivering a shorter range missile to U.S.
    territory.
        The key importance of these approaches is that each would
    significantly shorten the warning time of deployment available to the
    United States.
                             f. erosion of warning
        Precise forecasts of the growth in ballistic missile capabilities
    over the next two decades--tests by year, production rates, weapons
    deployed by year, weapon characteristics by system type and circular
    error probable (CEP)--cannot be provided with confidence. Deception and
    denial efforts are intense and often successful, and U.S. collection
    and analysis assets are limited. Together they create a high risk of
    continued surprise.
        The question is not simply whether the U.S. will have warning of an
    emerging capability, but whether the nature and magnitude of a
    particular threat will be perceived with sufficient clarity in time to
    take appropriate action.
        Concealment, denial and deception efforts by key target countries
    are intended to delay the discovery of strategically significant
    activities until well after they had been carried out successfully. The
    fact that some of these secret activities are discovered over time is
    to the credit of the U.S. Intelligence Community. However, the fact
    that there are delays in discovery of those activities provides a sharp
    warning that a great deal of activity goes undetected.
        Both technical and human intelligence are inherently more difficult
    to collect in those countries where the U.S. has limited access, which
    include most of the ballistic missile countries of concern. The U.S. is
    not able to predict and anticipate with confidence the behavior and
    actions of emerging ballistic missile powers and their related
    political decision-making.
        Their ballistic missile programs often do not follow a single,
    known pattern or model, and they use unexpected development patterns.
    These are not models of development the U.S. follows or that
    intelligence analysts expect to see. For example, Pakistan's test
    launch in April 1998 of its Ghauri MRBM--its version of the North
    Korean No Dong--could not be predicted on the basis of any known
    pattern of technical development either for MRBMs generally or Pakistan
    in particular. Similarly, North Korea's decision to deploy the No Dong
    after what is believed to be a single successful test flight is another
    example. Based on U.S. and Russian experience, the Intelligence
    Community had expected that a regular test series would be required to
    provide the confidence needed before any country would produce and
    deploy a ballistic missile system. Yet North Korea deployed the No
    Dong.
        The Commission believes that the technical means of collection now
    employed will not meet emerging requirements, and considerable
    uncertainty persists whether planned collection and analysis systems
    will do so.
                                 g. methodology
        In analyzing the ballistic missile threat, the Commission used an
    expanded methodology. We used it as a complement to the traditional
    analysis in which a country's known program status is used to establish
    estimates of its current missile capabilities. We believe this expanded
    approach provides insights into emerging threats that the prevailing
    approaches used by the Intelligence Community may not bring to the
    surface.
        To guide our assessment of the ballistic missile threat to the
    United States, we posed three questions:

       What is known about the ballistic missile threat, including
            the domestic infrastructure of a ballistic missile power; the
            efforts of a power to acquire foreign technology, materials and
            expertise; and the scale, pace and progress of its programs?
       What is not known about the threat in each of those three
            categories?
       Can a power intent on posing a ballistic missile threat to
            any part of the United States, including the use of but not
            limited to ICBM-range missiles, use the open market, the black
            market and/or espionage to secure the needed technology and
            expertise and then carry out its program in ways that will
            minimize the interval between the time the U.S. becomes aware
            of the threat and the fielding of that capability?
        In seeking answers to these questions, we familiarized ourselves
    with the current state of knowledge as well as the depth of analytic
    capability within the Intelligence Community related to ballistic
    missile and WMD threats. The Commission used its broad access to
    individuals, special compartmented intelligence and special access
    programs. We consulted with experts in the broader government and
    private analytic and policy communities. We reviewed the strengths,
    weaknesses and vulnerabilities of current and planned human and
    technical collection efforts and capabilities, especially in light of
    the increasingly sophisticated means and methods available to target
    countries to hide from U.S. intelligence collection. We reviewed with
    scientists, engineers and program managers from the public and private
    sectors the technical issues associated with the design, development
    and testing of ballistic missiles and the means and methods available
    to the emerging ballistic missile powers to meet the challenges
    associated with long-range ballistic missile development and testing.
        The Commission analyzed the available information in order to
    develop an understanding of the threat from three perspectives:

       We examined the known size and quality of the deployed
            forces, the doctrine and the command and control systems that
            govern the forces and the availability of weapons of mass
            destruction to arm the forces. We reviewed the infrastructure
            supporting the programs and the extent of past and present
            foreign assistance available to those programs from Russia,
            China and other countries, including the West.
       We examined the ways in which the programs of emerging
            ballistic missile powers compared with one another. For
            example, we traced the development histories of the related
            programs of North Korea, Iran, Iraq and Pakistan and the
            relationships among them. This comparison helped in identifying
            the similarities between programs, the extent to which each had
            aided one another in overcoming critical development hurdles
            and, importantly, the pace at which a determined country can
            progress in its program development.
       We reviewed the resources (``inputs'') available and the
            ways in which they provide indicators of the prospects for
            successful missile development.

        By integrating these perspectives, we were able to partially bridge
    a significant number of intelligence gaps. Emphasizing inputs makes two
    important contributions to the analysis. Inputs include domestic
    opportunity costs, the foreign technology and expertise sought and
    obtained, the urgency with which facilities are constructed both above
    and below ground and the willingness to absorb cost and time penalties
    in order to hide activities from detection by U.S. intelligence.
    Attention to inputs across all elements of a program helps develop an
    understanding of the scale and scope of a program before traditional
    output indicators, such as testing and production rates, can be
    observed and evaluated. When combined with observed outputs and the
    application of engineering judgments, the understanding of the scale
    and scope of a program that this provided helped us to measure the
    probable pace and magnitude of a program and its potential products. We
    were then able to make what we believe to be reasonably confident
    estimates of what the various programs can achieve.
        Rather than measuring how far a program had progressed from a known
    starting point, the Commission sought to measure how close a program
    might be to demonstrating the first flight of a long-range ballistic
    missile. This approach requires that analysts extrapolate a program's
    scope, scale, pace and direction beyond what the hard evidence at hand
    unequivocally supports. It is in sharp contrast to a narrow focus on
    the certain that obscures the almost-certain. The approach helps reduce
    the effects of denial and deception efforts. When strategically
    significant programs were assessed by narrowly focusing on what is
    known, the assessments lagged the actual state of the programs by two
    to eight years and in some cases completely missed significant
    programs.
        We chose to focus on what is left to be accomplished in the
    programs of potentially threatening ballistic missile powers and
    alternative paths they can follow to attain their goals. We reviewed
    program histories and current activities, including foreign assistance,
    to determine whether a ballistic missile program acquired the means to
    overcome its identified problems. We considered the multiple pathways
    available for completing its development given the combination of
    expertise and technology available to it and the circumstances in which
    it is operating. This approach accepts as a basic premise that a power
    determined to possess a long-range missile, knowing that the U.S. is
    trying to track its every action but aware of U.S. intelligence methods
    and sources, will do its best to deny information and to deceive the
    U.S. about its actual progress.
        Because of these options available to emerging ballistic missile
    powers, the Commission, unanimously recognizing that missile
    development and deployment now follows new models, strongly urges the
    use of an expanded approach to intelligence that assesses both inputs
    and outputs in other countries' ballistic missile programs. We believe
    this approach is needed in order to capture both sooner and more
    accurately the speed and magnitude of potential ballistic missile
    proliferation in the post-Cold War world and to assess, in time, the
    various threats this proliferation poses to the United States.
        The Commission's key judgments are derived from applying this
    methodology and examining the evidence in light of the individual and
    collective experience of the nine Commissioners.
                                   h. summary
        Ballistic missiles armed with WMD payloads pose a strategic threat
    to the United States. This is not a distant threat. Characterizing
    foreign assistance as a wild card is both incorrect and misleading.
    Foreign assistance is pervasive, enabling and often the preferred path
    to ballistic missile and WMD capability.
        A new strategic environment now gives emerging ballistic missile
    powers the capacity through a combination of domestic development and
    foreign assistance, to acquire the means to strike the U.S. within
    about five years of a decision to acquire such a capability (10 years
    in the case of Iraq). During several of those years, the U.S. might not
    be aware that such a decision had been made. Available alternative
    means of delivery can shorten the warning time of deployment nearly to
    zero.
        The threat is exacerbated by the ability of both existing and
    emerging ballistic missile powers to hide their activities from the
    U.S. and to deceive the U.S. about the pace, scope and direction of
    their development and proliferation programs. Therefore, we unanimously
    recommend that U.S. analyses, practices and policies that depend on
    expectations of extended warning of deployment be reviewed and, as
    appropriate, revised to reflect the reality of an environment in which
    there may be little or no warning.

                                 Attachment 1.

                      a. year 2000 (y2k) computer problem
        The widely-discussed Year 2000 (Y2K) problem concerns computer
    hardware with embedded clocks and software with date recognition
    functions that still designate years with only two digits and are
    programmed to interpret ``00'' as the year 1900 rather than 2000. The
    tasks of reprogramming are immense and complex, and uncertainties
    surrounding their pace and outcome plague many aspects of life and
    commerce. The Commission judges that military and intelligence
    operations are not immune to the effects of the Y2K problem.
        Not only at the millennium but for some undetermined time before
    and after it the Y2K problem can affect U.S. and Russian ballistic
    missile forces and, to a lesser extent, those of China, the United
    Kingdom (U.K.) and France. The U.S. particularly and Russia somewhat
    less so depend on computer-based and computer-aided intelligence and
    surveillance and on automated processes to assure that their ballistic
    missile forces will function under all conceivable circumstances. The
    Y2K problem can potentially upset some of those calculations by
    interfering with the capacity of the U.S. and Russia to:

       Monitor the activities of each other at the strategic level,
            including the disposition and posture of their conventional
            military forces.
       Provide tactical warning of military operations,
            particularly ballistic missile operations, through collection
            of data from space-, air- and ground-based sensors.
       Process and fuse the data received from sensors in the
            command and control nets.
       Maintain positive control over ballistic missile forces and,
            if automated responses to false data and warnings are
            triggered, retain or regain control by the national military
            and political leadership.

        Y2K problems are complex and not easy to deal with. Efforts are
    underway to isolate critical systems from the problem, but they may not
    totally eliminate vulnerabilities for two reasons:

       No system is completely isolated. Command centers may have
            new software installed, but if the support services--electric,
            water, gas and communications, for example--are not self-
            contained the center may fail. Even if support services are
            self-contained, the need for the center to function via
            computer or by computer-dependent communication systems makes
            it vulnerable to Y2K problems up or downstream from it.
       Efforts to correct the problem provide their own attractive
            opportunities for unfriendly agents and powers to tamper with
            mission-critical software. Errors can be programmed which are
            designed to appear only much later and in circumstances that
            cannot be anticipated. The Commission is troubled by the amount
            of Y2K software work being performed in foreign countries,
            particularly India, for U.S. industry and for the U.S.
            Government--including elements of the Intelligence Community.
           b. revolution in military affairs and information warfare
        The term ``Revolution in Military Affairs'' (RMA) is used to
    describe the impact of leading-edge military technologies and
    information warfare on the conduct of military operations from the
    tactical to the strategic level. Key RMA technologies include
    precision-guided munitions, stealth technology and the use of space-
    based assets for command, control, communications, intelligence,
    surveillance and reconnaissance, as well as modern computational
    capabilities to integrate these functions.
        The U.S. military is adopting new weapon systems and tactical,
    operational and strategic concepts based on the elements of the RMA.
    The objective is to make U.S. forces lighter but more lethal so that
    fewer personnel with less equipment can strike over longer distances
    and with a far more powerful effect. This gives prospective adversaries
    greater incentives to find new ways of offsetting the new RMA-based
    capabilities of the U.S. and in particular to come up with new
    ``asymmetric'' strategies--that is, strategies that can cripple U.S.
    ability to use its forces without the adversary having to confront
    those forces directly.
        These asymmetric strategies of potential adversaries of the U.S.
    could well include ballistic missile operations against ports,
    airfields, communications centers or urban and industrial areas.
    Attacking ports and airfields the U.S. might use could severely hamper
    operations and could undercut the military advantages U.S.
    technological superiority provides. Interrupting communications
    channels would make it more difficult to plan, organize and conduct
    operations. Strikes by an adversary on urban and industrial centers
    could change the nature of the conflict from what the U.S. prefers--one
    confined to precision attacks against military forces in the field and
    point targets in urban and industrial settings--to one of
    indiscriminate damage to civilians and the infrastructure supporting
    them.
        In the 1991 Persian Gulf War, Iraqi ballistic missiles threatened
    to undermine the coalition's political strategy, and the coalition's
    military responses failed to halt Iraqi ballistic missile attacks.
    Doctrinal shifts in Russia and China have placed added emphasis on
    ballistic missile operations. Together, these highlight the
    vulnerability to such operations of the U.S., its forces and its
    allies, whether conducted by Russia, China or emerging ballistic
    missile powers. A number of other nations are incorporating technical
    features of the RMA into their forces. These features include space-
    based surveillance and reconnaissance. They also include communications
    using either space-based networks (perhaps using civilian assets) or
    land-based fiber-optic networks, guidance from the space-based global
    positioning system/global navigation satellite system (GPS/GLONASS) to
    increase the accuracy of missiles and the computational capabilities
    needed to plan, organize and conduct operations. Their capacity to
    conduct asymmetric operations with ballistic missiles, including
    attacks on RMA sites in the U.S., will increase.

                   Attachment 2. Unclassified Working Papers

        table of contents for appendix iii: unclassified working papers
    Roundtable Topics, Panelists and Summaries of Panelists' Remarks:
    Iran/Iraq: W. Seth Carus, Michael Eisenstadt, Ken Katzman and Ken
            Timmerman
    Russia/Ukraine: Bruce Blair, Stephen Blank, Daniel Goure and Nadia
            Schadlow
    China/Japan/Korea: Gerrit W. Gong, Selig Harrison, Robert Manning and
            David Wright
    India/Pakistan: Daniel Goure, Michael Krepon and David Tanks
    North Africa/Israel: W. Seth Carus and Dov Zakheim
    Technology Transfers: David C. Isby, John M. Myrah and Henry Sokoiski
    Pathways for Transfer: Dennis M. Gormley, Aaron Karp and Richard T.
            Cupitt
    Supplier Nations: Robbin Laird, Tim McCarthy, Keith Payne and David
            Smith
    Roundtable Papers:
    Bruce Blair, ``The Plight of the Russian Military and Nuclear Control''
    Stephen J. Blank, ``Nuclear Strategy and Nuclear Proliferation in
            Russian Strategy''
    W. Seth Carus, ``Ballistic Missiles in Iran and Iraq: 1988-1998''
    W. Seth Carus, ``Israeli Ballistic Missile Developments''
    Richard T. Cupitt, ``Export Controls and Missile Technology Transfer''
    Michael Eisenstadt, ``Missiles and Weapons of Mass Destruction (WMDs)
            in Iraq and Iran: Current Developments and Potential for Future
            Surprises''
    Gerrit W. Gong, ``Assessing the Ballistic Missile Threat: China-Japan-
            Korea-Taiwan Issues''
    Dennis M. Gormley, ``Transfer Pathways for Cruise Missiles''
    Daniel Goure, ``The Evolution of Russian Nuclear Forces: Working to a
            Plan''
    Daniel Goure, ``WMD and Ballistic Missiles in South Asia''
    Selig S. Harrison, ``Missile Capabilities in Northeast Asia: Japan,
            South Korea and North Korea''
    David C. Isby, ``Barriers to Proliferation and Pathways to Transfer:
            Building Ballistic Missile Capabilities Under MTCR''
    Aaron Karp, ``Technology Pathways to Ballistic Missiles in Iran''
    Kenneth Katzman, ``Iran's Long-Range Missile Capabilities''
    Kenneth Katzman, ``Iraq's Long-Range Missile Capabilities''
    Michael Krepon, ``India, Pakistan and the Ballistic Missile Threat''
    Robbin Laird, ``Rethinking the Role of Western States as Supplier
            Nations''
    Robert A. Manning, ``Missile Proliferation Threats in Northeast Asia''
    John M. Myrah, ``The Proliferation of Ballistic Missiles: What Should
            We Do to Stop It?''
    Keith Payne, ``The Missile Technology Control Regime: European
            Involvement and Compliance Issues''
    Nadia Schadlow, ``Patterns of Ukrainian Conduct''
    David J. Smith, ``Friendly Countries and Missile Proliferation: Dealing
            With Different Perceptions''
    Henry Sokolski, ``Space Technology Transfers and Missile
            Proliferation''
    David R. Tanks, ``Ballistic Missiles in South Asia: Are ICBMs a Future
            Possibility?''
    Kenneth R. Timmerman, ``Rogue States and Ballistic Missiles: Lessons
            and Prospects''
    David C. Wright, ``An Analysis of the North Korean Missile Program''
    Additional Papers:
    Kurt Guthe and Keith Payne, ``The Unique Value of Ballistic Missiles
            for Deterrence and Coercion: The Chinese Case''
    Keith Payne and Robert Rudney, ``The Unique Value of Ballistic Missiles
            for Deterrence and Coercion''
    Gilbert Siegert, ``The Chinese Space Program''
    Gilbert Siegert, ``Potential Threats from Global Commercial Space
            Capabilities''
    System Planning Corporation, ``Non-Proliferation Issues''
        1. France
        2. Great Britain
        3. Germany
        4. Japan
        5. South Korea

                                 Attachment 3.

                        a. resumes of commission members
    The Honorable Donald H. Rumsfeld, Chairman
        Mr. Rumsfeld is Chairman of the Board of Directors of Gilead
    Sciences, Inc. Previously he served in a variety of government posts,
    including: Naval Aviator (1954-57), Member of Congress (1963-69), U.S.
    Ambassador to NATO (1972-74), White House Chief of Staff (1974-75),
    Secretary of Defense (1975-77) and Presidential Envoy to the Middle
    East (1983-84). He also served as Chairman of the Rand Corporation
    (1981-86; 1995-96) and as Chairman and CEO of G. D. Searle & Co. (1977-
    85) and of General Instrument Corporation (1990-93). He received the
    Presidential Medal of Freedom in 1977.
    Dr. Barry M. Blechman
        Dr. Blechman is the president and founder of DFI International (in
    1984) and chairman and co-founder of the Henry L. Stimson Center
    beginning in 1989. He served as Assistant Director of the U.S. Arms
    Control and Disarmament Agency (1977-80). He was previously affiliated
    with the U.S. Army (1964-66), the Center for Naval Analyses (1966-71)
    and Brookings Institution (1971-77). He also was affiliated with the
    Carnegie Endowment (1980-82) and the Center for Strategic and
    International Studies (1982-84). He is the author of Face Without War
    and The Politics of National Security, among others. Dr. Blechman has a
    Ph.D. in international relations.
    General Lee Butler, U.S. Air Force (Ret.)
        General Butler served as the Commander-in-Chief of the U.S.
    Strategic Command and Strategic Air Command (1992-94) and as the
    Director of Strategic Plans and Policy on the Joint Chiefs of Staff
    (1989-91). In 1987, he was the Director of Operations at USAF
    Headquarters and served as the Inspector General of the Strategic Air
    Command (1984-86). From 1982 to 1984, he was the Commander of the 96th
    and 320th Bomb Wings. General Butler was an Olmsted Scholar.
    Dr. Richard L. Garwin
        Dr. Garwin is a Senior Fellow for Science and Technology with the
    Council on Foreign Relations. He has been an IBM Fellow Emeritus at the
    Thomas J. Watson Research Center since 1993 and was a Fellow from 1952
    to 1993. He has served as a member of the President's Science Advisory
    Committee twice, from 1962 to 1965 and from 1969 to 1972, and he served
    on the Defense Science Board (1966-69). In 1996, the U.S. Foreign
    Intelligence Community awarded him the R.V. Jones Award for Scientific
    Intelligence, and the President and the Department of Energy awarded
    him the Enrico Fermi Award. Dr. Garwin has a Ph.D. in physics.
    Dr. William H. Graham
        Dr. Graham is the Chairman of the Board and President of National
    Security Research (1996 to present). He previously was the Director of
    the White House Office of Science & Technology Policy (1986-89) and the
    Deputy Administrator of NASA (1985-86). He has a Ph.D. in electrical
    engineering.
    Dr. William Schneider, Jr.
        Dr. Schneider is the President of International Planning Services,
    Inc. (1986 to present). He previously served as the Under Secretary of
    State for Security Assistance (1982-86) and the Chairman of the
    President's General Advisory Committee on Arms Control and Disarmament
    (1987-93). He has a Ph.D. in economics.
    General Larry D. Welch, U.S. Air Force (Ret.)
        General Welch is the President and CEO of the Institute for Defense
    Analyses (1990 to present). He previously served as the Chief of Staff
    of the U.S. Air Force (1986-90) and the Commander in Chief of the U.S.
    Strategic Air Command (1985-86).
    Dr. Paul D. Wolfowitz
        Dr. Wolfowitz is Dean of the Paul H. Nitze School of Advanced
    International Studies at Johns Hopkins University (1994 to present). He
    previously served as the Under Secretary of Defense for Policy (1989-
    93), the U.S. Ambassador to Indonesia (1986-89), the Assistant
    Secretary of State for East Asian and Pacific Affairs (1982-86) and
    Director of the State Department Policy Planning Staff (1981-82). He
    was a member of the Commission on the Roles and Capabilities of the
    United-States Intelligence Community (1995-95). He has a Ph.D. in
    political science.
    The Honorable R. James Woolsey
        Mr. Woolsey is a partner in the law firm of Shea & Gardner (1995 to
    present, 1991-93, 1979-89). He previously served as Director of Central
    Intelligence (1993-95), Ambassador and U.S. Representative to the
    Negotiation on Conventional Armed Forces in Europe (1989-91) and Under
    Secretary of the Navy (1977-79). He was a Delegate-at-Large to the
    U.S.-Soviet START and Nuclear and Space Arms Talks (1983-85). He served
    as a member of the Scowcroft Commission (Presidential Commission on
    Strategic Forces, 1983) and the Packard Commission (Presidential Blue
    Ribbon Commission on Defense Management, 1985-86).
                   b. resumes of core staff of the commission
        Dr. Stephen A. Cambone, Staff Director. Senior Fellow, Center for
    Strategic and International Studies (1993 to present). Director,
    Strategic Defense Policy, Office of the Secretary of Defense (1990-93);
    Deputy Director of Strategic Analysis, SRS Technologies (1986-90);
    Staff Analyst, Los Alamos National Laboratory (1982-86). Ph.D. in
    political science.
        Dr. Steven A. Maaranen. Policy Planning Staff, Los Alamos National
    Laboratory (1980 to present). Chief, Defense and Space Division, U.S.
    Arms Control and Disarmament Agency (1987-88); Assistant Professor,
    Claremont McKenna College (1976-80). Ph.D. in political science.
        Eric Desautels. Member of Technical Staff TASC, Inc. (1994-98).
    Masters in international security.
        David H. Dunham. Member of Technical Staff TASC, Inc. (1994-98);
    Assistant Director of the Eisenhower World Affairs Institute (1994);
    Special Assistant, Safe and Secure Dismantlement Delegation; Deputy
    Executive Director, General Advisory Committee, U.S. Arms Control and
    Disarmament Agency (1991-94).
        Jason W. Roback. Analyst with the National Institute for Public
    Policy and National Security Research, Inc. (1997 to present). M.S. in
    defense and strategic studies.
        Bernard C. Victory. Analyst at the National Institute for Public
    Policy (1988 to present). Congressional Research Service (1987-88).
    M.A. in international affairs.
        Delonnie Henry. Administrative Assistant, National Defense
    University (1993-98). M.Ed.
                                  dci liaison
        Richard Haver. Chief of Staff of the National Intelligence Council.
    Formerly: National Intelligence Officer for Special Activities,
    Executive Director for Intelligence Community Affairs, Assistant to the
    Secretary of Defense for Intelligence Policy and Deputy Director for
    Naval Intelligence.

                       c. commission meetings and agendas

    ----------------------------------------------------------------------------------------------------------------
           Date                      Subject or Activity                                  Visitor
    ----------------------------------------------------------------------------------------------------------------
    Jan. 14            Organization of Commission                      .............................................

    Jan. 15            U.S. Technical Collection Capabilities          .............................................
                       Simulation, Imagery Intelligence (IMINT),       .............................................
                        Signals Intelligence (SIGINT)
                       Foreign Instrumentation Signals                 .............................................
                       Measures and Signature Intelligence (MASINT)    .............................................

    Jan. 29            Russia                                          .............................................
                       Changing Political and Economic Circumstances   .............................................
                       Military Changes                                .............................................
                       Nuclear Doctrine                                .............................................
                       Strategic Force Projections                     .............................................
                       Warning, Inadvertent Launch, Anti-Ballistic     .............................................
                        Missile Status
                       C3I, Unauthorized and Accidental Launch         .............................................

    Jan. 30            China                                           .............................................
                       Political Overview Taiwan                       .............................................
                       Economic Overview                               .............................................
                       Military Overview                               .............................................
                       China's Space Program                           .............................................
                       Nuclear Doctrine                                .............................................
                       Force Structure and Projections                 .............................................
                       Chinese C3I                                     .............................................

    Feb. 4             Deception and Denial                            .............................................
                       Analytic Depth: China                           .............................................

    Feb. 5             External Proliferation Concerns                 .............................................
                       Technology Transfer and End Use                 .............................................

                       China                                           .............................................
                       Hard Target                                     .............................................
                       Missile Program and                             .............................................
                       Russian Assistance                              .............................................
                       Infrastructure and Government Oversight         .............................................

    Feb. 9             Nuclear Programs                                .............................................

    Feb. 19            Nonproliferation Center and Methodological      .............................................
                        Challenges of Proliferation

                       Russia                                          .............................................
                       The Spread of Underground Facilities            .............................................
                       Hard Target                                     .............................................
                       Military Missile and Technological              .............................................
                        Infrastructure
                       External Proliferation Concerns                 .............................................
                       The Russian-Iranian Connection                  .............................................

    Mar. 4             Iran                                            .............................................
                       Collection Challenges                           .............................................
                       Ballistic Missile Program                       .............................................
                       Engine Testing                                  .............................................
                       Missile Infrastructure                          .............................................
                       Alternate Launch Modes                          .............................................
                       Nuclear Program                                 .............................................
                       Biological Weapons                              .............................................
                       Chemical Weapons                                .............................................
                       Buyer, Seller, Broker                           .............................................

    Mar. 5             North Korea                                     .............................................
                       Collection Challenges                           .............................................
                       Ballistic Missile Program                       .............................................
                       Buyer, Seller, Broker                           .............................................
                       Forces and Doctrine                             .............................................
                       Chemical Weapons                                .............................................
                       Biological Weapons                              .............................................
                       Nuclear Program                                 .............................................

    Mar. 19            The Honorable George Tenet                      Director of Central Intelligence
                       Ambassador Rolf Ekeus                           Ambassador of Sweden to the U.S.
                       The Honorable Andrew Marshall                   Office of Net Assessment, Office of the
                                                                        Secretary of Defense
                       David Osias                                     Defense Intelligence Officer
                       David Ivry                                      Director-General, Israeli Ministry of Defense
                                                                        (Ret.)

    Mar. 24            Saudi Arabia                                    .............................................
                       Algeria                                         .............................................
                       Egypt                                           .............................................
                       Libya                                           .............................................
                       Syria                                           .............................................

    Mar. 25            Meeting of Commissioners at the National        .............................................
                        Security Agency

    Mar. 30            Iraq                                            .............................................
                       Collection Overview                             .............................................
                       IAEA/UNSCOM Inspection Program                  .............................................
                       Missile Program                                 .............................................
                       Chemical Weapons                                .............................................
                       Biological Weapons                              .............................................
                       Nuclear Program                                 .............................................

    Mar. 31            India and Pakistan                              .............................................
                       Hard Target                                     .............................................
                       Weapons of Mass Destruction: Motivations,       .............................................
                        Decisionmakers and Doctrine
                       Missile Systems: Capabilities and Production    .............................................
                       India's Naval Development                       .............................................
                       India's Space Program                           .............................................
                       Foreign Proliferation Assistance                .............................................
                       Missile Forces in 2015                          .............................................
                       Chemical & Biological Weapons                   .............................................
                       Nuclear Programs                                .............................................
                       Broker and Seller: Issues of Safety and         .............................................
                        Security
                       Collection Overview                             .............................................

    Apr. 7             Intelligence Process                            .............................................
                       The Honorable Edward C. ``Pete'' Aldridge, Jr.  President and CEO, Aerospace Corporation
                       Project West Wing                               .............................................
                       Iranian and North Korean Ballistic Missile      .............................................
                        Program
                       Ballistic Missile Technical Hurdles and Work-a- .............................................
                        Rounds

    6Apr. 8            Deception and Denial                            .............................................
                       Yamantau and Russian Underground Activity       .............................................

    Apr. 16            Admiral William Studeman, U.S. Navy (Ret.)      Former Deputy Director of Central
                                                                        Intelligence
                       Hurdles of Long-range Ballistic Missiles and    .............................................
                        Work-a-Rounds:
                       1. Liquid Rocket Propulsion                     .............................................
                       2. Solid Rocket Propulsion                      .............................................
                       3. Aerodynamics, Reentry Vehicle                .............................................
                       4. Design and Missile Materials                 .............................................
                       Russian Command and Control Modernization       .............................................

    Apr. 20            Lt. Gen. Lester Lyles, U.S. Air Force           Director, Ballistic Missile Defense
                                                                        Organization
                       Lt. Gen. Patrick Hughes, U.S. Army              Director, Defense Intelligence Agency
                       Dr. Fred Ikle                                   Former Under Secretary of Defense (Policy)
                       Analysis of Pakistan's Ghauri/No Dong Launch    .............................................

    Apr. 21            Emerging Long-Range Threat to the U.S           Boeing Corporation
                       Ambassador Frank Wisner                         Former U.S. Ambassador to India and Special
                                                                        Ambassador to Russia

    Apr. 27            Counterintelligence Brief Industrial Espionage  .............................................
                        Legal Snooping
                       1993 No Dong Flight                             .............................................
                       Foreign Missile Threats                         .............................................
                       Scope of Ballistic Missile Proliferation        .............................................
                        Activities
                       Non-Proliferation Methodologies                 .............................................
                       Dr. Sidney Drell                                Deputy Director, Stanford Linear Accelerator
                                                                        Center

    May 7              Foreign Missile Assessment                      Lockheed Martin Corporation
                       Payload Fabrication and Delivery                .............................................
                       Commercial Space-Launch Vehicles, Peacekeeper   Orbital Sciences Corporation
                        Conversion
                       Contemporaneous History of Iran's Missile       .............................................
                        Programs

    May 8              Gordon Oehler                                   Former Director, Office of the Director of
                                                                        Central Intelligence Nonproliferation Center
                       The Honorable William Reinsch                   Undersecretary of Commerce for Export
                                                                        Administration

    May 18             Naval Intelligence Briefing                     .............................................
                       Contemporaneous History of North Korea's        .............................................
                        Missile Program Assessment of a Hypothetical
                        Taepo Dong III
                       Dr. William J. Perry                            Former Secretary of Defense
                       Lt. General William Odom, U.S. Army (Ret.)      Former Director of the National Security
                                                                        Agency

    May 19             Drafting of Final Report                        .............................................

    May 27             Dr. James Schlesinger                           Former Secretary of Defense and Director of
                                                                        Central Intelligence
                       Drafting of Final Report                        .............................................

    Jun. 3             Drafting of Final Report                        .............................................

    Jun. 4             Dr. Harold Brown                                Former Secretary of Defense
                       Drafting of Final Report                        .............................................

    Jun. 11            Drafting of Final Report                        .............................................

    Jun. 16            The Honorable Caspar Weinberger                 Former Secretary of Defense
                       Drafting of Final Report                        .............................................

    Jun. 17            Office Call with the Honorable William S.       Secretary of Defense, The Pentagon
                        Cohen
                       Drafting of Final Report                        .............................................

    Jun. 23            Information Warfare                             .............................................
                       Dr. John Deutch                                 Former Director of Central Intelligence
                       Brief on Israel                                 .............................................
                       Drafting of Final Report                        .............................................

    Jun. 24            General Colin Powell, U.S. Army (Ret.)          Former Chairman, Joint Chiefs of Staff
                       Lt. Gen. Brent Scowcroft, U.S. Air Force        Former National Security Advisor to the
                        (Ret.)                                          President
                       Cruise Missiles                                 .............................................
                       Drafting of Final Report                        .............................................

    Jun. 29            Office Call with General Henry H.Shelton, U.S.  Chairman, Joint Chiefs of Staff, The Pentagon
                        Army
                       Drafting of Final Report                        .............................................

    Jun. 30            Drafting of Final Report                        .............................................

    Jul. 7             Office Call with the Honorable Samuel R.        Assistant to the President for National
                        ``Sandy'' Berger                                Security, The White House
                       Foreign Students in the United States           .............................................

    Jul. 8             Information Warfare                             .............................................
                       Space Reconnaissance                            .............................................
                       Y2K Problem in Russia                           .............................................
                       Collection Capabilities                         .............................................

    Jul. 15            Deliver Report to Congress                      Senior Leadership of the U.S. Senate and U.S.
                                                                        House of Representatives, The Capitol
    ----------------------------------------------------------------------------------------------------------------

                               d. site visits \1\
    ---------------------------------------------------------------------------
        \1\ All sites except the National Air Intelligence Center were
    visited by one or more Commissioners.
    ---------------------------------------------------------------------------
    March 6: National Air Intelligence Center Wright Patterson Air Force
            Base, Dayton, Ohio
    March 10: Sandia National Laboratories, Kirtland Air Force Base,
            Albuquerque, New Mexico
    March 16: Aerospace Corporation, Los Angeles, California
    March 25: National Security Agency, Fort Meade, Maryland
    April 3: Center for International Security Affairs, Los Alamos National
            Laboratory, Los Alamos, New Mexico
    April 22: National Reconnaissance Office, Sterling, Virginia
    May 6: Defense Intelligence Agency Briefing, Andrews Air Force Base,
            Suitland, Maryland
    May 15: Missile and Space Intelligence Center, Redstone Arsenal,
            Huntsville, Alabama
    June 5: U.S. Space Command, Peterson Air Force Base, Colorado Springs,
            Colorado
    June 8: Lawrence Livermore National Laboratory, Livermore, California
                                 e. interviews
    Dr. Edward C. ``Pete'' Aldridge, Jr., former Secretary of the Air Force
            and Director of the National Reconnaissance Office
    The Honorable Samuel R. ``Sandy'' Berger, Assistant to the President
            for National Security Affairs
    The Honorable Dr. Harold Brown, former Secretary of Defense
    The Honorable William S. Cohen, Secretary of Defense
    The Honorable Dr. John Deutch, former Director of Central Intelligence
            and Deputy Secretary of Defense
    Dr. Sidney Drell, Deputy Director, Stanford Linear Accelerator Center
    Ambassador Rolf Ekeus, Ambassador of Sweden to the United States
    Lieutenant General Patrick Hughes, U.S. Army, Director, Defense
            Intelligence Agency
    David Ivry, former Director-General of the Ministry of Defense of
            Israel
    Dr. Frederick Ikle, former Undersecretary of Defense
    David A. Kier, Deputy Director for the National Reconnaissance Office
    Lieutenant General Lester Lyles, U.S. Air Force, Director, Ballistic
            Missile Defense Organization
    The Honorable Andrew Marshall, Director of Net Assessment, Office of
            the Secretary of Defense
    Barbara McNamara, Deputy Director, National Security Agency
    Lieutenant General William Odom, U.S. Army (Ret.), former Director of
            the National Security Agency
    Gordon Oehler, former Director Nonproliferation Center, Office of the
            Director of Central Intelligence
    David Osias, Defense Intelligence Officer for Acquisition Support,
            Counter-proliferation and Arms Control
    The Honorable Dr. William J. Perry, former Secretary of Defense
    General Colin A. Powell, U.S. Army (Ret.), former Chairman of the Joint
            Chiefs of Staff and National Security Advisor to the President
    The Honorable William A. Reinsch, Undersecretary of Commerce for Export
            Administration
    The Honorable Dr. James Schlesinger, former Secretary of Defense,
            Director of Central Intelligence and Secretary of Energy
    Lieutenant General Brent Scowcroft, U.S. Air Force (Ret.), former
            National Security Advisor to the President
    General Henry H. Shelton, U.S. Army, Chairman, Joint Chiefs of Staff
    Admiral William Studeman, U.S. Navy (Ret.), former Deputy Director of
            Central Intelligence and Director, National Security Agency
    The Honorable George J. Tenet, Director of Central Intelligence
    The Honorable Caspar Weinberger, former Secretary of Defense
    Ambassador Frank Wisner, former U.S. Ambassador to India
                               f. acknowledgments
        The Commissioners wish to express their appreciation to the men and
    women of the U.S. Intelligence Community. Over 300 of them took time to
    meet with the Commissioners on the subject of the ballistic missile
    threat to the United States.
        In particular, the Commissioners express their thanks to the
    Honorable George Tenet, Director, Central Intelligence, and to the
    directors of the Defense Intelligence Agency, National Security Agency,
    National Reconnaissance Office, National Imagery and Mapping Agency and
    the Office of Naval Intelligence for making the time of their analysts
    available to the Commission and for providing a level of access to
    information infrequently granted.
        Special thanks are extended to Rich Haver, the DCI's liaison to the
    Commission. His knowledge of the issues, familiarity with the ways of
    the Intelligence Community and his unfailing good humor made the task
    of the Commission far easier than it might otherwise have been. The
    Commissioners would like to thank those analysts and managers of the
    Bureau of Intelligence and Research (Department of State), Defense
    Technology Security Administration (Department of Defense), CIA, DIA,
    NSA, NRO and NIMA who served as the points of contact for their
    respective agencies. Their efforts to schedule briefings and to provide
    information is greatly appreciated.
        The Commissioners would also like to thank the support staff
    provided by the Central Intelligence Agency who served in the
    Commission office and those in the Multimedia Production Group,
    Cartography Department and Printing and Photography Group who assisted
    in the design and publication of the final version of the Report.
                                     ______

                                         U.S. Congress,
                          Committee on International Relations,
                                         Washington, DC, June 16, 1997.
    The President
    The White House
    Washington, DC.

        Dear Mr. President:
        Last week the House of Representatives approved H.R. 1758, the
    ``European Security Act of 1997.'' I originally introduced this
    legislation on April 24th of this year with the cosponsorship of Dick
    Armey, Jerry Solomon, Porter Goss, Curt Weldon, and others to address a
    number of issues bearing on U.S. relations with Russia.
        Pursuant to House Resolution 159, the European Security Act as
    passed by the House has been appended to H.R. 1757, the ``Foreign
    Relations Authorization Act for Fiscal Year 1998 and 1999.'' Inasmuch
    as the Senate companion measure to H.R. 1757 is scheduled for Senate
    floor action this week, it appears likely that the European Security
    Act will be addressed in a House-Senate conference committee in the
    very near future.
        As we prepare for conference on the European Security Act, we find
    it necessary to ask for additional information relevant to one of the
    bill's provisions relating to multilateralization of the Anti-Ballistic
    Missile (ABM) Treaty.
        Section 6(c)(1) of the European Security Act states that:

              It is the sense of the Congress that until the United States
            has taken the steps necessary to ensure that the ABM Treaty
            remains a bilateral treaty between the United States and the
            Russian Federation (such state being the only successor state
            of the Union of Soviet Socialist Republics that has deployed or
            realistically may deploy an anti-ballistic missile defense
            system), no ABM/TMD demarcation agreement will be considered
            for approval for entry into force with respect to the United
            States. . . .

        I am aware that, subsequent to the introduction of the European
    Security Act, the Senate on May 14th approved Treaty Doc. No. 105-5, a
    resolution advising and consenting to ratification of the CFE Flank
    Agreement. Condition 9 of this resolution required the President to:

            . . . certify to Congress that he will submit for Senate advice
            and consent to ratification any international agreement . . .
            that would add one or more countries as States Parties to the
            ABM Treaty, or otherwise convert the ABM Treaty from a
            bilateral treaty to a multilateral treaty . . .

    I am further aware that, on May 15th, you submitted to Congress the
    certification required by Condition 9 of Treaty Doc. No. 105-5.
        In order to help the conferees on the European Security Act
    understand the degree to which section 6(c)(1) of that bill has been
    addressed (and perhaps rendered unnecessary) by Condition 9 of Treaty
    Doc. 105-5, I would appreciate receiving your prompt response to the
    following questions:

        1. In the view of the Administration, what countries in addition to
    the United States are today parties to the ABM Treaty?
        2. What countries sent representatives to the most recent meeting
    of the Standing Consultative Commission in Geneva?
        3. To the extent that the list of countries identified in response
    to question no. 1 includes countries in addition to those identified in
    response to question no. 2, does the Administration believe that those
    additional countries have the legal right to send representatives to
    meetings of the Standing Consultative Commission and otherwise
    participate in the administration of the ABM Treaty? .
        4. To the extent that the list of countries identified in response
    to question no. 1 includes countries in addition to those identified in
    response to question no. 2, why are those additional countries not
    currently participating in the Standing Consultative Commission? Are
    those additional countries aware that, in the view of the United States
    Government, they are parties to and are bound by the ABM Treaty? On
    what date were they informed of this fact by the United States
    Government?
        5. To the extent that the list of countries identified in response
    to question no. 2 includes countries in addition to those identified in
    response to question no. 1, what is the legal justification for the
    participation of those additional countries in the Standing
    Consultative Commission?
        6. Does the Administration currently intend to conclude with
    Russia, Ukraine, Kazakhstan, Belarus, or any other of the newly
    independent states an agreement or agreements regarding ABM Treaty
    succession?
        7. In the event that the Senate fails to act on an agreement
    submitted to it by the Administration regarding ABM Treaty succession,
    what countries in addition to the United States will, in the view of
    the Administration, be parties to the ABM Treaty?
        8. In the event that the Senate votes to reject an agreement
    submitted to it by the Administration regarding ABM Treaty succession,
    what countries in addition to the United States will, in the view of
    the Administration, be parties to the ABM Treaty?
        9. Apart from the consequences that would flow from Senate approval
    of, rejection of, or inaction on an agreement submitted to it by the
    Administration regarding ABM Treaty succession, what other
    developments, if any, may lead to a change in the list of countries
    that are today parties to the ABM Treaty?
        10. Apart from the consequences that would flow from Senate
    approval of, rejection of, or inaction on an agreement submitted to it
    by the Administration regarding ABM Treaty succession, what other
    developments, if any, may lead to a change in the list of countries
    legally entitled to send representatives to meetings of the Standing
    Consultative Commission and otherwise participate in the administration
    of the ABM Treaty?

        I appreciate your cooperation in this matter.
        With warmest regards,

                Sincerely,
                                  Benjamin A. Gilman, Chairman.
                                     ______

                                THE WHITE HOUSE

                                   washington

                               November 21, 1997

    The Honorable Benjamin A. Gilman, Chairman,
    Committee on International Relations,
    House of Representatives,
    Washington, DC.

        Dear Mr. Chairman:
        Thank you for your letter concerning the Anti-Ballistic Missile
    (ABM) Treaty succession arrangements. As you know, after discussion
    between our staffs, we deferred this formal response to your letter
    pending completion of the ABM-related agreement, including the
    Memorandum of Understanding (MOU) on ABM Treaty succession. These
    documents were signed on September 26, 1997, and mark, along with the
    START II documents that were signed the same day, a significant step
    forward. The MOU, as well as the agreements relating to the demarcation
    between theater and strategic ballistic missile defense systems, will
    be provided to the Senate for its advice and consent. Thus, the
    Congressional concerns that you raised related to approval of these
    agreements have been directly addressed.
        You raised a number of questions on ABM Treaty discussion
    generally. Let me make a few background points. The MOU on succession
    was the result of detailed negotiations spanning several years. When
    the USSR dissolved at the end of 1991, it became necessary to reach
    agreement as to which former Soviet states would collectively assume
    its rights and obligations under the Treaty (which clearly continued in
    force by its own terms). The United States took the view that, as a
    general principle, agreements between the United States and the USSR
    that were in force at the time of the dissolution of the Soviet Union
    would be presumed to continue in force as to the former Republics. It
    became clear, however, particularly in the area of arms control, that a
    case-by-case review of each agreement was necessary.
        In dealing with matters of succession, a key U.S. objective has
    been to preserve the substance of the origina1 treaty regime as closely
    as possible. This was true with respect to the elaboration of the MOU
    as well. Accordingly, the MOU works to preserve the original object and
    purpose of the Treaty. For example, it restricts the four successor
    states to only those rights held by the former Soviet Union by limiting
    them collectively to no more than 100 interceptors on 100 launchers at
    a single ABM deployment area and precluding the transfer of ABM systems
    and components to states that are not Party to the Treaty. Neither a
    simple recognition of Russia as the sole ABM successor (which would
    have ignored several former Soviet states with significant ABM
    interests) nor a simple recognition of all NIS states as full ABM
    successors would have preserved fully the original purpose and
    substance of the Treaty, as approved by the Senate in 1972.
        Our willingness to work with key successor states, in addition to
    Russia, on strategic arms control issues has served, and will continue
    to serve, U.S. national security interests. Under the Lisbon Protocol
    to the START I Treaty, Belarus, Kazakhstan, Russia and Ukraine, the
    successor states on whose territory, all strategic offensive arms of
    the former Soviet Union were based and all declared START-related
    facilities were located, assumed the rights and obligations of the
    former Soviet Union under the START I Treaty. The Protocol also
    obligated Belarus, Kazakhstan, and Ukraine to adhere to the Treaty on
    the Nonproliferation of Nuclear Weapons. Both the Bush Administration
    and Clinton Administration engaged in major diplomatic initiatives to
    ensure implementation of the Lisbon Protocol, especially with respect
    to the removal of all nuclear warheads from Ukraine, Belarus, and
    Kazakhstan, the accession at these successor states to the
    Nonproliferation Treaty, and the entry into force of START I.
        For certain key successor states to the former Soviet Union, ABM
    Treaty succession was, and remains, a priority issue. Ukraine, in
    particular, has made clear to us that it considers Ukraine's legal
    status under the ABM Treaty to be the same as under the INF Treaty (to
    which it is considered a Party) and that, in its view, its succession
    status with regard to both Treaties should be the same.
        There are many complex factors in our strategic relationship with
    the former Soviet states. Had we been unwilling to engage with states
    in addition to Russia on key arms control agreements (START, INF and
    ABM), it is unlikely that we would have achieved the kind of
    comprehensive resolution of issues related to the disposition of
    strategic assets that has been achieved. A change in course at this
    time that would exclude key successor states from the ABM succession
    formula could place at risk continued progress on strategic arms and
    other nuclear matters.
        Since the last review of the ABM Treaty in 1993, (required every
    five years by the terms of the Treaty, Belarus, Kazakhstan, Russia, and
    Ukraine--each of which have ABM Treaty-related assets on its
    territory--have been the only former Soviet republics that have
    participated in the ABM Treaty-related discussions held in the Standing
    Consultative Commission (SCC). While the other eight former Soviet
    republics have been informed of SCC sessions, none has participated,
    and three--Armenia, Azerbaijan, and Moldova--have expressed their lack
    of interest in being considered as Parties to the Treaty. Indeed, it
    became clear over the past four years of negotiations that, in addition
    to Russia, the former Soviet republics of Belarus, Kazakhstan, and
    Ukraine have substantial interest in the specific subject matter of the
    Treaty. For these reasons, prior to the signing of the MOU, the United
    States notified the other eight new independent states of our
    intentions to bring the succession issue to closure and to sign the MOU
    with Belarus, Kazakhstan, the Russian Federation, and Ukraine,
    recognizing that these four successor states, along with the United
    States, constitute the Parties to the ABM Treaty.
        Upon its entry into force, the MOU will confirm the four former
    Soviet states participating in the SCC as the successor states to the
    Soviet Union for purposes of the Treaty. This does not constitute a
    substantive modification of rights and obligations under the Treaty;
    rather, it is a recognition of the status of those former Soviet
    republics in light of the dissolution of the USSR. As a practical
    matter, the recently signed SCC regulations make clear that the
    increased SCC participation will be structured in a way similar to, and
    having the same effect as, that which has been successful for the
    United States in working with Belarus, Kazakhstan, Russia and Ukraine
    in implementing the START and INF Treaties.
        As to your question regarding the possibility that the Senate might
    fail to act upon or might reject the MOU on succession, we believe that
    the case for all the ABM-related agreements, including the MOU on
    succession, will prevail on its merits. We further believe that the
    package of agreements serves U.S. national security and foreign policy
    objectives. If, however, the Senate were to fail to act or to disagree
    and disapprove the agreements, succession arrangements will simply
    remain unsettled. The ABM Treaty itself would clearly remain in force.
        We appreciate this opportunity to clarify the record in this area
    and look forward to future opportunities to communicate and consult
    with you on these matters.

                Sincerely,
                                                  Bill Clinton.
                                     ______

                                                 U.S. Congress,
                                         Washington, DC, March 3, 1998.
    The President
    The White House
    Washington, DC.

        Dear Mr. President:
        We appreciate your response of November 21, 1997, to Chairman
    Gilman's letter of June 16, 1997, regarding the proposed
    multilateralization of the Anti-Ballistic Missile (ABM) Treaty. We
    appreciate as well your making Administration lawyers available to meet
    with congressional staff on January 30, 1998, to elaborate on your
    November 21st response.
        The most important legal question that arises in connection with
    multilateralization of the ABM Treaty is the first question posed in
    Chairman Gilman's letter: In the view of the Administration, what
    countries in addition to the United States are today parties to the ABM
    Treaty?
        Your response to this question appears to be: Until an agreement on
    succession to the ABM Treaty comes into force, the identity of the
    other party or parties to the ABM Treaty is ``unsettled.'' Indeed, when
    asked on January 30th whether Russia, Ukraine, Uzbekistan, or any other
    country that emerged from the Soviet Union is today prohibited by the
    ABM Treaty from deploying an ABM system at more than one site,
    Administration lawyers stated repeatedly that it is ``unclear'' whether
    any of these countries is so bound.
        The Administration's response is profoundly disturbing. If it is
    unclear as a matter of law whether Russia or any other country that
    emerged from the Soviet Union is today bound by the ABM Treaty, then it
    also should be unclear whether the United States is so bound. Yet the
    Administration has insisted for years that the United States remains
    fully bound by the ABM Treaty.
        With regard to ballistic missile defense, for example, the
    Administration has argued consistently that the United States should
    not test or deploy certain systems that could provide our nation highly
    effective protection against ballistic missile attack because such
    systems would violate our nation's obligations under the ABM Treaty. It
    now appears, however, that the Administration views the United States,
    at least for the time being, as the only country that is clearly
    subject to those obligations.
        It is obvious to us, however, that under basic principles of
    international law a treaty requires more than one state party in order
    to give rise to binding legal obligations. If the Administration is
    unable to identify any country in addition to the United States that is
    today clearly bound by the ABM Treaty, then there is no country that
    the United States can look to today to uphold the obligations
    previously imposed on the Soviet Union by the Treaty, and no country
    that today is entitled to complain if the United States fails to uphold
    the Treaty.
        If, in fact, the Administration does not consider the United States
    to be the only country that is today clearly bound by the ABM Treaty,
    we would appreciate your identifying for us the other country (or
    countries) that is today party to--and bound by--the Treaty. In the
    absence of such clarification, we will have no choice but to conclude
    that the ABM Treaty has lapsed until such time as the Senate approves a
    succession agreement reviving the Treaty.
        Thank you for your attention to this inquiry.
        With best wishes,

                Sincerely,
                                  Benjamin A. Gilman, Chairman,
                                  Committee on International Relations.

                                         Jesse Helms, Chairman,
                                        Committee on Foreign Relations.
                                     ______

                                THE WHITE HOUSE

                                   washington

                                  May 21, 1998

    The Honorable Jesse Helms, Chairman,
    Committee on Foreign Relations,
    U.S. Senate,
    Washington, DC.

        Dear Mr. Chairman:
        Thank you for your letter concerning the Anti-Ballistic Missile
    (ABM) Treaty succession arrangements. As I said in my letter of
    November 21, 1997, the Administration will provide to the Senate for
    its advice and consent the Memorandum of Understanding (MOU) on ABM
    Treaty succession, which was signed on September 26, 1997. Moreover,
    the MOU will settle ABM Treaty succession. Upon its entry into force,
    the MOU will confirm Belarus, Kazakhstan, Russia, and Ukraine as the
    successor states to the Soviet Union for purposes of the Treaty and
    make clear that only these four states, along with the United States,
    are the ABM Treaty Parties.
        In your letter of March 3, you state that if the Administration is
    unable to identify any country in addition to the United States that is
    clearly bound by the Treaty, then you would have no choice but to
    conclude that the Treaty has lapsed until such time as the Senate
    approves a succession agreement reviving the Treaty.
        Following the dissolution of the Soviet Union, ten of the twelve
    states of the former Soviet Union initially asserted a right in a
    Commonwealth of Independent States resolution, signed on October 9,
    1992, in Bishkek, to assume obligations as successor states to the
    Soviet Union for purposes of the Treaty. Only four of these states have
    subsequently participated in the work of the Standing Consultative
    Commission (SCC), and none of the other six has reacted negatively when
    we informed each of them that, pursuant to the MOU, it will not be
    recognized as an ABM successor state. A principal advantage of the
    Senate's approving the MOU is that the MOU's entry into force will
    effectively dispose of any such claim by any of the other six states.
        In contrast, Belarus, Kazakhstan and Ukraine each has ABM Treaty-
    related assets on its territory; each has participated in the work of
    the SCC; and each has affirmed its desire to succeed to the obligations
    of the former Soviet Union under the Treaty. Thus, a strong case can be
    made that, even without the MOU, these three states are Parties to the
    Treaty.
        Finally, the United States and Russia clearly are Parties to the
    Treaty. Each has reaffirmed its intention to be bound by the Treaty;
    each has actively participated in every phase of the implementation of
    the Treaty, including the work of the SCC; and each has on its
    territory extensive ABM Treaty-related facilities.
        Thus, there is no question that the ABM Treaty has continued in
    force and will continue in force even if the MOU is not ratified.
    However, the entry into force of the MOU remains essential. As I
    pointed out in my letter of November 21, the United States has a clear
    interest both in confirming that these states (and only these states)
    are bound by the obligations of the Treaty, and in resolving
    definitively the issues about ABM Treaty succession that are dealt with
    in the MOU. Without the MOU, ambiguity will remain about the extent to
    which states other than Russia are Parties, and about the way in which
    ABM Treaty obligations apply to the successors to the Soviet Union.
    Equally important, maintaining the viability of the ABM Treaty is key
    to further reductions in strategic offensive forces under START II and
    START III.
        I appreciate this further opportunity to clarify the record in this
    area.

                Sincerely,
                                                  Bill Clinton.
                                     ______

                                         U.S. Congress,
                          Committee on International Relations,
                                       Washington, DC, August 14, 1998.
    The President
    The White House
    Washington, DC.

        Dear Mr. President:
        Thank you for your letters of November 21, 1997 and May 21, 1998,
    responding to inquiries from me and Chairman Helms about succession to
    the Anti-Ballistic Missile (ABM) Treaty. As stated in our letter to you
    of March 3, 1998, the most important question that arises in this
    connection is the following: In the view of the Administration, what
    countries in addition to the United States are today parties to the ABM
    Treaty?
        I understand from your letter of May 21st that the Administration's
    answer to this question is that Russia ``clearly'' is a party to the
    Treaty, and that with regard to Belarus, Kazakhstan, and Ukraine, ``a
    strong case can be made that . . . these three states are Parties to
    the Treaty.'' In other words, you draw a distinction between Russia on
    the one hand and Belarus, Kazakhstan, and Ukraine on the other, and
    believe that Russia succeeded automatically to the USSR's obligations
    under the ABM Treaty, while Belarus, Kazakhstan, and Ukraine may not
    have succeeded automatically to those obligations. But you do not rule
    out the possibility that, upon further consideration, the
    Administration may conclude that Belarus, Kazakhstan, and Ukraine
    automatically succeeded as well.
        This answer raises several additional questions that are set forth
    below:

        1. To the degree that Belarus, Kazakhstan, and Ukraine may have
    succeeded automatically under international law to the obligations of
    the USSR under the ABM Treaty, would that succession result in a series
    of bilateral ABM Treaties (U.S.-Belarus, U.S.-Kazakhstan, and U.S.-
    Ukraine, as well as U.S.-Russia), or one multilateral ABM Treaty to
    which all of these countries are parties?
        2. If the response to the previous question is that the result of
    automatic succession by Belarus, Kazakhstan, and Ukraine would be one
    multilateral ABM Treaty, please identify the historical precedents, if
    any, for such a succession. In other words, please describe any other
    bilateral treaties that, upon the dissolution of one of the parties to
    the treaty, were converted automatically by operation of international
    law into multilateral treaties involving two or more of the successor
    states.
        3. Will Belarus, Kazakhstan, and Ukraine participate in future
    meetings of the Standing Consultative Commission (SCC) and in the next
    five-year review conference of parties to the ABM Treaty?
        4. If the response to the previous question is that Belarus,
    Kazakhstan, and Ukraine will participate in future SCC meetings and the
    next five-year review conference, what will be the legal basis for such
    participation? To the degree that such participation does not rest on a
    conclusion that Belarus, Kazakhstan, and Ukraine succeeded
    automatically under international law to the ABM Treaty, please explain
    why such participation is not inconsistent with (1) Article IX(3) of
    the Memorandum of Understanding on Succession to the ABM Treaty of
    September 26, 1997, and (2) your certification to the Congress of May
    15, 1997, in accordance with Condition 9 of the Senate resolution
    advising and consenting ratification of the CFE Flank Agreement (Treaty
    Doc. No. 105-5).
        I look forward to your prompt response to these questions.
        With warmest regards,

                Sincerely,
                                  Benjamin A. Gilman, Chairman.
                                     ______

                                                   U.S. Senate,
                                       Washington, DC, October 5, 1998.
    The President
    The White House
    Washington, DC.

        Dear Mr. President:
        Your May 21, 1998, letter regarding the status of the 1972 Anti-
    Ballistic Missile (ABM) Treaty is clearly at odds with historical fact,
    your administration's past representations regarding this issue, and
    the Memorandum of Understanding (MOU) on succession itself.
        Moreover, your letter seeks to repudiate your pledge to the Senate,
    made in a treaty-related certification on May 14, 1997, that you would
    respect your Constitutional obligation to seek the advice and consent
    of the Senate for any agreement adding parties to the ABM Treaty, or
    changing its geographic scope.
        If your administration persists in the assertions made in the
    letter of May 21, 1998, the validity of the ratification of the
    Document Agreed Among the States Parties to the Treaty on Conventional
    Armed Forces in Europe of November 19, 1990, also known as the CFE
    Flank Agreement, will be called into question. Your recent letter
    directly contravenes your certification of May 14, 1997, raising the
    inescapable conclusion that the instrument of ratification for the CFE
    Flank Agreement deposited on behalf of the United States is defective
    under U.S. constitutional law. Failure to reconsider your position not
    only will make further cooperation between Congress and your
    Administration on arms control matters difficult; it will undermine
    both the credibility of your administration, and of the United States,
    in the international affairs of the nation.
        In a November 21, 1997 letter to Representative Gilman, and in
    accompanying briefings by Administration lawyers, your administration
    stated that ABM Treaty succession arrangements were ``unsettled'' and
    would remain so in the absence of a new agreement (which you certified
    you would submit for Senate approval). Moreover, your letter to Mr.
    Gilman takes note of no distinction between the legal status of Russia
    and that of the other states proposed as ABM Treaty parties. Indeed,
    you stated in that letter:

              Neither a simple recognition of Russia as the sole ABM
            successor (which would have ignored several former Soviet
            states with significant ABM interests) nor a simple recognition
            of all NIS states as full ABM successors would have preserved
            fully the original purpose and substance of the Treaty, as
            approved by the Senate in 1972.

        However, in your May 21, 1998, letter, you reversed course by
    asserting that ``the United States and Russia clearly are parties to
    the Treaty.'' Russia's desire to become a party, its participation in
    the treaty's activities, and the presence of ``ABM-Treaty related
    facilities''--a newly-invented term found nowhere in the ABM Treaty--on
    its territory are cited as reasons for this conclusion. You also
    decline to identify Belarus, Kazakhstan and Ukraine as parties,
    although you assert that ``a strong case can be made that even without
    the MOU, these three states are Parties to the Treaty,'' citing
    substantially the same factors that supposedly make Russia a party.
        Mr. President, there is no basis for any distinction between the
    legal status of Russia and that of the other states you mention. In a
    briefing to congressional staff on January 30, 1998, Administration
    lawyers were asked directly whether Russia was the only other clear
    party to the Treaty. They stated definitively that this was not the
    case. Numerous Administration representations and public statements,
    including the State Department's publication of ``Treaties in Force,''
    have been consistent in making no legal distinction among the former
    Soviet states who are potential successors to the ABM Treaty. Article
    VIII of the MOU itself notes that regulations of the Standing
    Consultative Commission ``shall reflect the equal legal status of the
    Parties.'' Further, we are confident that the record of negotiation on
    the succession issue is replete with expressions by the United States
    of the view that the potential successors to the Soviet Union all have
    the same legal status. In short, your recent letter has no basis in
    historical fact.
        Moreover, your May 21, 1998, assertion that ``a strong case could
    be made'' that four countries could today be parties to the treaty is
    directly contradicted by Article I of the MOU, which states that the
    United States, Belarus, Kazakhstan, Ukraine, and Russia ``upon entry
    into force of this Memorandum, shall constitute the Parties to the
    Treaty.'' Very clearly, the entry-into-force of the MOU is the
    triggering event--and one that has not yet occurred--by which these
    states may become parties to the ABM Treaty. In short, none of the
    potential successors were identified as parties to the ABM Treaty
    during the period of negotiation, nor at any time preceding your
    certification. Nothing has transpired since that time that would
    constitute formal recognition of any state as a party to the ABM
    Treaty.
        Your assertion that Russia is a Party to the ABM Treaty, and your
    claim that the three other states might be, imply that the issue of the
    ABM treaty's status is fundamentally settled. Mr. President, this
    matter is most definitely not settled unless and until the Senate
    approves the MOU, or a similar agreement, through the exercise of the
    advice and consent powers assigned to it by the Constitution. It is the
    Senate's constitutional responsibility, and its duty, to advise on and
    consent to treaty arrangements made on behalf of the United States. Any
    such arrangements are invalid without the Senate's consent.
        Consent was given to the CFE Flank Agreement on condition that you
    would certify to the Congress of the United States that you would
    submit for the advice and consent of the Senate:

            . . . any international agreement (i) that would add one or
            more countries as States Parties to the ABM Treaty, or
            otherwise convert the ABM Treaty from a bilateral treaty to a
            multilateral treaty; or (ii) that would change the geographic
            scope or coverage of the ABM Treaty, or otherwise modify the
            meaning of the term ``national territory'' as used in Article
            VI and Article IX of the ABM Treaty.

    On May 14, 1997, you made this certification.
        Since it is impossible to resolve the ABM Treaty's status without
    meeting one of these two conditions, your certification put to rest any
    question about whether ABM Treaty succession requires the advice and
    consent of the Senate. Your assertion now that Russia, and perhaps
    Belarus, Kazakhstan and Ukraine are parties to the ABM Treaty ``even
    without the MOU'' is, a repudiation of your certification. It implies
    that Senate advice and consent is not only unnecessary, but also
    irrelevant, and that these states may already have succeeded to the
    Treaty without Senate approval.
        The Senate's advice and consent powers are not ceremonial or pro
    forma. They do not exist for the convenience of the executive branch in
    order to clarify ``ambiguity,'' as your letter states. They are the
    powers by which the legislative branch--and the legislative branch
    alone--decides whether, how, and with whom the United States is bound
    by treaty.
        In light of the numerous and irreconcilable inconsistencies between
    your letters of November 21, 1997, and May 21, 1998, the internal
    contradictions within your most recent letter, the disregard for the
    negotiating record and historical fact, and other contrivances without
    basis in the treaty, we have no choice but to conclude that the ABM
    Treaty did not survive the dissolution of the Soviet Union.
    Accordingly, it is our position that the ABM Treaty has lapsed and is
    of no force and effect unless the Senate approves the MOU, or some
    similar agreement, to revive the treaty.
        We strongly urge that you reconsider your position of May 21, 1998,
    and reaffirm your pledge of more than a year ago.

                Sincerely,
                                       Trent Lott
                                       Jesse Helms
                                       Don Nickles
                                       Connie Mack
                                       Larry E. Craig
                                       Paul Coverdell
                                       Jon Kyl
                                       Bob Smith
                                     ______

                                THE WHITE HOUSE

                                   washington

                               December 17, 1998

    The Honorable Jesse Helms, Chairman,
    Committee on Foreign Relations,
    U.S. Senate,
    Washington, DC.

        Dear Mr. Chairman:
        Thank you for your letter concerning the Anti-Ballistic Missile
    (ABM) Treaty succession arrangements. As I said in my two previous
    letters on this subject, the Memorandum of Understanding (MOU) on ABM
    Treaty succession, which was signed on September 26, 1997, will be
    provided to the Senate for its advice and consent.
        While I respect the fact that the MOU will not enter into force
    without the advice and consent of the Senate, there is no question the
    ABM Treaty has continued in force following the dissolution of the
    Soviet Union. If the Senate were to fail to approve the MOU, ambiguity
    would remain about the extent to which states other than Russia are
    Parties; however, the ABM Treaty would continue in force.
        The United States has a clear interest in resolving definitively
    the issues about ABM Treaty succession that are dealt with in the MOU.
    I am confident that any differences of views regarding the MOU, or
    additional questions you may have, will be debated fully as the Senate
    considers the MOU. In the interim, I suggest our staffs continue their
    dialogue regarding the technical legal aspects of ABM Treaty
    succession.

                Sincerely,
                                                  Bill Clinton.
                                     ______

                     Presidential Message 35 (May 14, 1997)

    TO THE CONGRESS OF THE UNITED STATES:

        In accordance with the resolution of advice and consent to
    ratification on the Document Agreed Among the States Parties to the
    Treaty on Conventional Armed Forces in Europe of November 19, 1990
    (``the CFE Flank Document''), adopted by the Senate of the United
    States on May 14, 1997, I hereby certify that:

        In connection with Condition (2), Violations of State Sovereignty,
    the United States and the governments of Belgium, Canada, Denmark,
    France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands,
    Norway, Portugal, Spain, Turkey and the United Kingdom have issued a
    joint statement affirming that (i) the CFE Flank Document does not give
    any State Party the right to station (under Article IV, paragraph 5 of
    the Treaty) or temporarily deploy (under Article V, paragraphs 1 (B)
    and (C) of the Treaty) conventional arms and equipment limited by the
    Treaty on the territory of other States Parties to the Treaty without
    the freely expressed consent of the receiving State Party; (ii) the CFE
    Flank Document does not alter or abridge the right of any State Party
    under the Treaty to utilize fully its declared maximum levels for
    conventional armaments and equipment limited by the Treaty notified
    pursuant to Article VII of the Treaty; and (iii) the CFE Flank Document
    does not alter in any way the requirement for the freely expressed
    consent of all States Parties concerned in the exercise of any
    reallocations envisioned under Article IV, paragraph 3 of the CFE Flank
    Document.
        In connection with Condition (6), Application and Effectiveness of
    Senate Advice and Consent, in the course of extension of the period of
    provisional application of the CFE Flank Document or a change of a
    minor administrative or technical nature; (ii) secure the adoption of a
    new United States obligation under, or in relation to, the CFE Treaty
    or the CFE Flank Document, unless such obligation is solely of a minor
    administrative or technical nature; or (iii) secure the provision of
    assurances, or endorsement of a course of action or a diplomatic
    position, inconsistent with the principles and policies established
    under conditions (1), (2), and (3) of the resolution of advice and
    consent to ratification of the CFE Flank Document.
        In connection with Condition (7), Modifications of the CFE Flank
    Zone, any subsequent agreement to modify, revise, amend or alter the
    boundaries of the CFE flank zone, as delineated by the map entitled
    ``Revised CFE Flank Zone'' submitted to the Senate on April 7, 1997,
    shall require the submission of such agreement to the Senate for its
    advice and consent to ratification, if such changes are not solely of a
    minor administrative or technical nature.
        In connection with Condition (9), Senate Prerogatives on
    Multilateralization of the ABM Treaty, I will submit to the Senate for
    advice and consent to ratification any international agreement (i) that
    would add one or more countries as States Parties to the ABM Treaty, or
    otherwise convert the ABM Treaty from a bilateral treaty to a
    multilateral treaty; or (ii) that would change the geographic scope or
    coverage of the ABM Treaty, or otherwise modify the meaning of the term
    ``national territory'' as used in Article VI and Article IX of the ABM
    Treaty.
        In connection with Condition (11), Temporary deployments, the
    United States has informed all other States Parties to the Treaty that
    the United States (A) will continue to interpret the term ``temporary
    deployment,'' as used in the Treaty, to mean a deployment of severely
    limited duration measured in days or weeks or, at most, several months,
    but not years; (B) will pursue measures designed to ensure that any
    State Party seeking to utilize the temporary deployments provision of
    the Treaty will be required to furnish the Joint Consultative Group
    established by the Treaty with a statement of the purpose and intended
    duration of the deployment, together with a description of the object
    of verification and the location of origin and destination of the
    relevant conventional armaments and equipment limited by the Treaty;
    and (C) will vigorously reject any effort by a State Party to use the
    right of temporary deployment under the Treaty (i) to justify military
    deployments on a permanent basis; or (ii) to justify military
    deployments without the full and complete agreement of the State Party
    upon whose territory the armed forces or military equipment of another
    State Party are to be deployed.

                                             William J. Clinton
    THE WHITE HOUSE,
    May 14, 1997.
                                     ______

                     Presidential Message 36 (May 14, 1997)

    TO THE SENATE OF THE UNITED STATES:

        I am gratified that the Senate has given its advice and consent to
    the ratification to the CFE Flank Document and I look forward to the
    entry into force of this important agreement. It will reaffirm the
    integrity of one of the CFE Treaty's core provisions and will
    facilitate progress on CFE adaptation and, thus, NATO enlargement, key
    elements for advancing United States and European security.
        I must, however, make clear my view of several of the Conditions
    attached to the resolution of advice and consent to ratification,
    including Conditions 2, 3, 4, 6, 7, 9 and 11. These Conditions all
    purport to direct the exercise of authorities entrusted exclusively to
    the President under our Constitution, including for the conduct of
    diplomacy and the implementation of treaties. The explicit limitation
    on diplomatic activities in Condition 3 is a particularly clear example
    of this point. As I wrote the Senate following approval of the Chemical
    Weapons Convention, a condition in a resolution of ratification cannot
    alter the allocation of authority and responsibility under the
    Constitution. I will, therefore, interpret the Conditions of concern in
    the resolution in a manner consistent with the responsibilities
    entrusted to me as President under the Constitution. Nevertheless,
    without prejudice to my Constitutional authorities, I will implement
    the Conditions in the resolution.
        Condition (9), which requires my certification that any agreement
    governing ABM Treaty succession will be submitted to the Senate for
    advice and consent, is an issue of particular concern not only because
    it addresses a matter reserved to the President under our Constitution,
    but also because it is substantively unrelated to the Senate's review
    of the CFE Flank Document. It is clearly within the President's
    authorities to determine the successor States to a treaty when the
    original Party dissolves, to make the adjustments required to
    accomplish such succession, and to enter into agreements for this
    purpose. Indeed, throughout our history the executive branch has made a
    large number of determinations concerning the succession of new States
    to the treaty rights and obligations of their predecessors. The ABM
    Succession MOU negotiated by the United States effectuated no
    substantive change in the ABM Treaty requiring Senate advice and
    consent. Nonetheless, in light of the exceptional history of the ABM
    Treaty and in view of my commitment to agree to seek Senate approval of
    the Demarcation Agreements associated with the ABM Treaty, I have,
    without prejudice to the legal principles involved, certified,
    consistent with Condition (9), that I will submit any agreement
    concluded on ABM Treaty succession to the Senate for advice and
    consent.

                                             William J. Clinton
    THE WHITE HOUSE,
    May 14, 1997.
                                     ______

    Condition #9 of the Executive Report 105-1, Resolution of Ratification
       for the Flank Document to the Conventional Armed Forces in Europe
                                     Treaty

              (9) Senate prerogatives on multilateralization of the abm
            treaty.--
                      (A) Findings.--The Senate makes the following
                    findings:
                              (i) Section 232 of the National Defense
                            Authorization Act for Fiscal Year 1995 (Public
                            Law 103-337) states that ``the United States
                            shall not be bound by any international
                            agreement entered into by the President that
                            would substantively modify the ABM Treaty
                            unless the agreement is entered pursuant to the
                            treaty making power of the President under the
                            Constitution''.
                              (ii) The conference report accompanying the
                            National Defense Authorization Act for Fiscal
                            Year 1997 (Public Law 104-201) states ``. . .
                            the accord on ABM Treaty succession,
                            tentatively agreed to by the administration,
                            would constitute a substantive change to the
                            ABM Treaty, which may only be entered into
                            pursuant to the treaty making power of the
                            President under the Constitution''.
                      (B) Certification required.--Prior to the deposit of
                    the United States instrument of ratification, the
                    President shall certify to the Senate that he will
                    submit for Senate advice and consent to ratification
                    any international agreement--
                              (i) that would add one or more countries as
                            States Parties to the ABM Treaty, or otherwise
                            convert the ABM Treaty from a bilateral treaty
                            to a multilateral treaty; or
                              (ii) that would change the geographic scope
                            or coverage of the ABM Treaty, or otherwise
                            modify the meaning of the term ``national
                            territory'' as used in Article VI and Article
                            IX of the ABM Treaty.
                      (C) ABM treaty defined.--For the purposes of this
                    resolution, the term ``ABM Treaty'' means the Treaty
                    Between the United States of America and the Union of
                    Soviet Socialist Republics on the Limitation of Anti-
                    Ballistic Missile Systems, signed in Moscow on May 26,
                    1972, with related protocol, signed in Moscow on July
                    3, 1974.
                                     ______

    Condition 9: Senate prerogatives on multilateralization of the ABM
            Treaty
        Condition (9) protects the Senate's constitutional prerogatives by
    requiring the President to agree that any agreement to multilateralize
    the 1972 Anti-Ballistic Missile Treaty would be submitted to the Senate
    for advice and consent since any such agreement would, by definition,
    substantively alter the rights and obligations of the United States and
    others under the ABM Treaty.
        This condition builds upon a clear and unambiguous legislative
    history. The Fiscal Year 1995 Defense Authorization Act requires that
    any agreement that ``substantively modifies'' the ABM Treaty must be
    submitted to the Senate for advice and consent to ratification. The
    conference report accompanying the fiscal year 1997 Defense
    Authorization Act states that any agreement to add signatories to the
    ABM Treaty would constitute a substantive change to the treaty
    requiring Senate advice and consent.
        The majority of the committee views multilateralization of the ABM
    Treaty as a substantive modification requiring Senate advice and
    consent for a variety of reasons. (This was the one condition with
    which questions were raised.) The committee noted with interest a June
    6, 1996 study by the American Law Division of the Library of Congress.
    While the study concludes that ``an apportionment of the rights and
    obligations of the USSR under the ABM Treaty to its successor states
    would not, in itself, seem to require Senate participation,'' it does
    not contemplate just how those rights and obligations are to be
    apportioned. Indeed, the study does not seem even to take into account
    the actual Memorandum of Understanding relating to ABM Treaty
    successorship.
        Accordingly, the sentence preceding the June 6, 1996, study's
    conclusion is highly relevant, stating that ``a multilateralization
    agreement could include matters that would alter the substance of the
    ABM Treaty and require Senate advice and consent.'' Thorough analysis
    of how the addition of new States Parties to the ABM Treaty would alter
    its functioning reveals a number of problems which must be addressed by
    the Senate.
        First, new Parties to the ABM Treaty cannot be added without
    specially-negotiated, limited rights, but there is no way to do this
    within the existing provisions of the treaty. Yet such is necessary if
    the United States does not want to entitle each new successor to an
    ABM-system and ABM test-ranges. Thus the multilateralization agreement
    must add or alter provisions in the current treaty to ensure that ABM
    capabilities on the territory of the Soviet Union are not multiplied.
        Second, multilateralization inevitably will change the amount of
    territory covered by the ABM Treaty. In so doing, it will also change
    the geographic scope and coverage of the ABM Treaty. Since several
    fundamental limitations in the treaty (such as location of ABM radars)
    are defined in terms of ``national territory,'' any change to this
    definition changes the basic limitation in the treaty. For example,
    Russia continues to operate large-phased array radars which used to be
    ``on the periphery'' of the Soviet Union (as required by Article VI(b))
    but which are now in Ukraine, Belarus, Latvia, and Kazakhstan. A new
    agreement would conflict with ABM periphery requirements if Russia (or
    another country) were suddenly able to build a new string of radars
    along its borders. But if Russia is forbidden to do this, then the
    agreement must necessarily ``grandfather'' Russia's continued owning
    and operating of radars in other countries. By providing Russia
    extraterritorial treaty-rights and a military presence in another
    country, this agreement would most certainly constitute a significant
    change to the treaty (and a major legal/political issue for countries
    which want Russian troops withdrawn from their territories).
        Further, if a country of the former Soviet Union opts not to join
    the multilateralization agreement, the committee is concerned to know
    whether they would be free (in the future) to develop ABM systems. If
    so, this too significantly alters the geographic coverage of the
    treaty.
        Third, multilateralization of the ABM Treaty cannot be done without
    permanently, and significantly, altering United States rights under the
    treaty. New Parties doubtless will be given an official say at the
    Standing Consultative Commission (SCC), which interprets and
    administers the ABM Treaty. Under the bilateral ABM Treaty, the United
    States may take actions as approved through bilateral agreements. Yet
    with multilateralization, the United States presumably will no longer
    have this ability. Expanding the bilateral consensus arrangement into a
    multilateral consensus process means that, in the future, one country
    (such as Belarus) could effectively block U.S. actions or demand U.S.
    concessions even if Russia and the others agreed with the United
    States. A second alternative would be to alter the SCC to operate by
    means of a majority vote. Yet, if this occurs the United States could
    find itself overruled on matters where currently it cannot be.
        The history of succession agreements to the various treaties
    concluded between the United States and the Soviet Union further
    supports the case for Senate consideration of any ABM successorship
    document. The United States has engaged in a case-by-case review of
    treaty successorship issues. In the one case of the INF Treaty, where
    the treaty carried a negative obligation--namely to not possess any
    intermediate-range nuclear missiles--the treaty could be
    multilateralized without Senate advice and consent. No treaty terms
    were altered and the United States incurred no modification or new
    treaty rights or obligations. Thus advice and consent was not
    necessary.
        Multilateralization of the START Treaty under the Lisbon Protocol,
    on the other hand, required Senate advice and consent. In this case,
    multilateralization had clear implications for the treaty's text and
    object and purpose. The Lisbon Protocol determined the extent to which
    countries other than Russia would be allowed to possess strategic
    nuclear weapons. Similarly, ratification of the Lisbon Protocol also
    effectively determined successorship questions to the Treaty on Non-
    Proliferation of Nuclear Weapons (NPT). Under the protocol, Belarus,
    Kazakhstan, and Ukraine agreed to a legally-binding commitment to join
    the NPT as non-nuclear weapons states. Finally, the Senate specifically
    considered the question of multilateralization of the treaty on
    Conventional Armed Forces in Europe (CFE) under Condition (5) of the
    resolution of ratification for the CFE Treaty.
        Moreover, the ABM Treaty specifically provides that any amendment
    to the treaty be considered under Senate advice and consent procedures.
    Article 14 of the Treaty states that ``agreed amendments shall enter
    into force in accordance with the procedures governing the entry into
    force of this Treaty.'' In other words, An amendment is to be adopted
    through the ratification process.
        Under Article II, section 2, clause 2 of the Constitution, the
    Senate holds a co-equal treaty making power. John Jay made one of the
    most cogent arguments in this respect, noting that ``of course,
    treaties could be amended, but let us not forget that treaties are made
    not by only one of the contracting parties, but by both, and
    consequently that as the consent of both was essential to their
    formation at first, so must it ever afterwards be to alter * * *
    them.''

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