Although it has been fifteen years since President Ronald Reagan launched the Strategic Defense Initiative (SDI) to protect America from ballistic missiles armed with nuclear, chemical, or biological warheads, the American people still have no viable defense. It has been seven years since an Iraqi Scud missile killed 28 American soldiers in Saudi Arabia, yet today U.S. forces and allies abroad have no better defense against such theater missiles. The technology to do so is available and affordable, and yet America remains defenseless--as a matter of deliberate policy--against the weapons of mass destruction spreading rapidly around the world.
This policy of intentional vulnerability, which was codified in the 1972 Treaty on the Limitation of Anti-Ballistic Missile (ABM) Systems between the United States and the now-defunct Union of Soviet Socialist Republics, was based on the belief that strategic stability was possible if, and only if, each of the two nuclear superpowers was open to immediate retaliation from the other. This premise of mutual assured destruction (MAD), however, established that the United States, without missile defense, would be vulnerable to attack from any country. The fall of the Soviet Union in 1991 should have resulted in a withdrawal from a treaty that puts Americans at risk, to make the United States better able to respond to the challenges of the post-Cold War world, including an accidental or unauthorized missile launch from Russia. Instead, the Clinton Administration's foreign policy establishment clings to the ABM Treaty's old arms control dogma and holds America hostage to its limitations on defense.
Today, the United States must deal with a set of global tensions and conditions that are dramatically different from those that existed when the Soviet Union was a dominant global power. India's recent nuclear tests and Pakistan's responding tests demonstrate clearly that concerns over the uncontrolled proliferation of weapons of mass destruction are not baseless. In short, the ABM Treaty has not deterred nuclear proliferation, and it will not enhance or promote U.S. security in the current environment. America's leaders must "provide for the common defence" of all Americans, as the U.S. Constitution demands, and lay to rest a Cold War relic that will not protect Americans from annihilation.
Analysts at The Heritage Foundation have consistently criticized the Administration's policy of maintaining vulnerability to ballistic missiles carrying hyperlethal weapons. However, a number of recent developments led the Foundation to pursue an evaluation of the legal status of the ABM Treaty:
First, in September 1997, a delegation led by Secretary of State Madeleine Albright signed agreements in New York that would convert the old bilateral ABM Treaty with the Soviet Union into a multilateral agreement with Russia, Ukraine, Belarus, and Kazakhstan. The Clinton Administration appears incapable of breaking free from the Cold War paradigm of assured vulnerability, and seeks to resolve the legal question of succession by creating a new ABM treaty.
Second, the wording of the agreements reveals that the ABM Treaty must be rewritten in order to make the multilateral arrangements work. In other words, the original ABM Treaty, as amended in 1974, cannot be implemented under the New York "September Agreements." This brings into play a legal doctrine called "impossibility of performance."
Third, President Clinton, in an extraordinary letter last November to Representative Benjamin A. Gilman, Chairman of the House Committee on International Relations, stated: "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 Treaty successors would have preserved fully the original purpose and substance of the Treaty, as approved by the Senate in 1972." His assertion admits that it would be impossible for either Russia or all the New Independent States of the former Soviet Union to perform or carry out the terms of the 1972 ABM Treaty. This stands in sharp contrast to a letter dated May 21, 1998, and also addressed to Representative Gilman, in which the President suggests that Russia alone is now the United States' ABM Treaty partner. It is unclear how the President will reconcile his 1997 conclusion that Russia alone cannot fulfill the Soviet Union's ABM Treaty obligations and his assertion now that Russia alone is bound by that Treaty. In any case, the President's November letter and other clear statements and actions of the Administration, as well as the accepted rules of United States and international law, show that Russia is not capable of becoming the legal successor to the ABM Treaty.
Fourth, President Clinton certified to Congress in May 1997 that he would send the New York agreement on multilateralization to the Senate for advice and consent. When he does, the Senate is certain to debate both the legal standing of the ABM Treaty and whether the Treaty serves the security interests of the United States.
Finally, the Administration has quietly begun to implement the terms of the New York agreement on multilateralization and theater missile defense without obtaining the advice and consent of the Senate, as it is required to do by Article II, Section 2, of the U.S. Constitution, and by the Arms Control and Disarmament Act of 1961. For example, the ABM Treaty established procedures for determining the status of treaty-limited ABM systems, which require exchanges of information by the Treaty partners. The United States and the four states that signed the September Agreements in New York are sharing information now as if they were legitimate treaty partners. Furthermore, planning is under way to include them in the next meeting of the Standing Consultative Commission, in anticipation that their status as parties to the ABM Treaty will be permanent.
These troubling developments make it imperative that the legal status of the ABM Treaty be competently examined. To this end, The Heritage Foundation commissioned the national law firm of Hunton & Williams, a leader in constitutional and public process law, to perform pro bono publico an examination of the Treaty. The Heritage Foundation is deeply grateful to this firm and the principal authors of this memorandum: David B. Rivkin, Jr., Lee A. Casey, and Darin R. Bartram. The Heritage Foundation also acknowledges with gratitude the contributions of Douglas Feith and George Miron of the law firm of Feith & Zell; Baker Spring, Senior Defense Policy Analyst of The Kathryn and Shelby Cullom Davis International Studies Center, and Jim Renne, former Deputy Director of Congressional Relations, at The Heritage Foundation; and the following nationally recognized experts in constitutional and international law who have reviewed the memorandum: Robert Davis, University of Mississippi Law School; Leonard A. Leo, Director, The Federalist Society; former U.S. Attorney General Edwin Meese III; John Norton Moore, University of Virginia Law School; Ronald Rotunda, University of Illinois School of Law; former Ambassador Frank Ruddy of Ruddy & Muir; and Carl Smith of Higgins, McGovern and Smith.