November 5, 2010

The Senate may address the New START Treaty — an arms-control agreement between the U.S. and Russia that President Obama would like to ratify — in its upcoming lame-duck session. But it should not rush to consent to ratification. The clear lesson from past negotiations and arms-control agreements is that senators should carefully review the negotiating record before giving the president the go-ahead, particularly regarding possible limitations on ballistic-missile defenses. As of now, senators do not have access to the negotiating record, and they should wait until they do before taking up the issue — even if that means postponing action until the new Congress convenes next year.

The mid-1980s debate over “broad” and “narrow” interpretations of the 1972 Anti-Ballistic Missile (ABM) Treaty, which was negotiated as a key part of the Strategic Arms Limitation Talks (SALT), made very clear the importance of careful review. This debate, which led to legislated tight (or “narrow”), and I believe unilateral, constraints on U.S. missile-defense development, can be traced to ambiguities in such key terms as “development” (which was prohibited for mobile systems) versus “research” (which was permitted).

The U.S. position at the time of the SALT negotiations — what later became the “narrow” interpretation — defined “research” to exclude the testing of prototype ABM systems and/or components, placing such testing instead in the realm of prohibited “development.” This key U.S. position, never provided in an Agreed Statement or even a Treaty Unilateral Statement, can be traced to a unilateral declaration during the negotiations by Dr. Harold Brown, an adviser to the SALT delegation who was then president of the California Institute of Technology.

Other obscure “clarifications” in the Treaty language were also central to the “broad/narrow interpretation” controversy. For example, the U.S. in 1972 sought to protect its research on lasers, then a very secret program. Lasers are never mentioned in the negotiating record, but the U.S. intended that they be included under an Agreed Statement referring to ABM systems based on “other physical principles” — an undefined “clarification” intended not to preclude laser development and testing but to require discussion and agreement before deployment. It was also never discussed whether “other physical principles” applied to all physical principles other than those employed by the then-state-of-the-art fixed ground-based radars, launchers, and nuclear-armed interceptors. Would not systems without such components (such as hit-to-kill interceptors, however based, or space-based interceptors) also be based on “other physical principles”? The “broad interpretation” said yes, and testing short of deployment was permitted; the “narrow interpretation” said no, and prohibited development began with the testing of prototypes.

While the U.S. SALT I negotiators may have sought the “narrow” interpretation, there was no such agreement. In my view, which is informed by my role in the Reagan administration, the so-called “broad” interpretation taken by the administration was fully justified. Certainly, had it been the Soviets seeking the “broad” interpretation, the U.S. could not have effectively defended a rejection of that point of view, at least not from the negotiating record. (Indeed, there were often difficulties in reaching agreement within the U.S. government when the Soviets ran afoul of better-defined treaty terms.)

But the administration did not successfully defend its position to the Senate — and the Senate imposed the “narrow” interpretation. This unilateral, politically imposed constraint on U.S. missile-defense development programs cost considerable time and money. It continues to limit development of the most effective defenses that our technology permits, even though the U.S. withdrew from the ABM Treaty eight years ago.

This is hardly the only problem that the ambiguous language of the 1972 negotiations caused. And confusion among those who should have known better has limited the development of key U.S. defenses beyond any reasonable interpretation of the Treaty. Consider its impact on Theater Missile Defense (TMD) capabilities. TMD systems were not prohibited by the ABM Treaty; the U.S. sought only to prevent the Soviets from giving ABM capability to their air-defense systems. (ABM capability is the ability to shoot down the intercontinental ballistic missiles limited by the SALT Treaty; TMD capability is the ability to shoot down the shorter-range ballistic missiles associated with regional, or theater, operations.)

Yet each year in the late 1980s, when the Senate (led by Dan Quayle and Ted Kennedy) added funds to give the U.S.’s Patriot missiles TMD capability, the House sought to block funding because SALT II negotiator Paul Warnke had testified, incorrectly, that such development would violate the ABM Treaty. As a result, the program was so poorly funded that the Army had only three TMD interceptors for testing when Iraq invaded Kuwait in August 1990. Every Patriot used in that conflict was produced between then and January 1991 (when the fighting began) — without the planned testing.

Also in the early 1990s, as director of the Strategic Defense Initiative (SDI), I urged the Navy to upgrade its Aegis-based Standard Missile-3 (SM-3) to give it TMD capability, and the Navy agreed. In providing the Navy’s funding, I urged the then–chief of naval operations, Adm. Frank Kelso, to make sure the Navy limited the SM-3 to TMD capability, since the ABM Treaty prohibited giving it ABM capability. Those programmatic constraints were only recently removed to permit a sea-based ABM capability — eight years after the U.S. withdrew from the Treaty and almost 20 years after the SM-3 improvement program began.

This history might be traced to the fact that Soviets never bought into the U.S. advocacy for Mutual Assured Destruction (the theory that if each side had the capability to destroy the other even after being struck itself, neither would benefit from attacking first), and sought to preserve a pathway to a combined air and missile defense — as well as a robust civil defense — to protect their homeland. This tension continued throughout the life of the ABM Treaty, with the Soviets seeking to improve their homeland defense with such technologies as surface-to-air interceptor missiles, large-phased-array radars, and the Moscow nuclear-armed, ground-based ABM system that is still operational today. At the same time, the Soviets sought to limit the development of U.S. defenses through arms control and U.S. political processes, quite a successful strategy as indicated above.

Thus, ambiguous constraints can have a long and consequential legacy. Such impeding consequences were entirely consistent with the U.S.’s objectives for the ABM Treaty, which was intended to prevent the development of effective ballistic-missile defenses. But continuing to prevent effective defenses indefinitely is hopefully not the current U.S. objective.

At least in that context, the U.S. Senate should carefully weigh the negotiating record before giving its consent to ratifying the New START Treaty — and insist on whatever modifications, clarifications, and understandings are needed to avoid future delays in our ability to build the most effective defenses our technology permits. The Senate cannot do this until it has access to the negotiating record.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.