[Senate Hearing 106-339]
[From the U.S. Government Publishing Office]
S. Hrg. 106-339
BALLISTIC MISSILES: THREAT AND RESPONSE
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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
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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
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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\
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\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
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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.