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

                                                        S. Hrg. 106-339

 
                BALLISTIC MISSILES: THREAT AND RESPONSE

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

                                HEARINGS

                               BEFORE THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

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

                               __________

       Printed for the use of the Committee on Foreign Relations

                               

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

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

                     COMMITTEE ON FOREIGN RELATIONS

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

                                  (ii)

                            C O N T E N T S

                              ----------                              

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

                                                                   Page

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

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

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

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

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

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

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

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

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

                              May 25, 1999
                   The Legal Status of the ABM Treaty

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

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

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

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

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

                               APPENDICES

                               Appendix 1

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

                               Appendix 2

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

                               Appendix 3

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

             U.S. VULNERABILITY TO BALLISTIC MISSILE ATTACK

                              ----------                              

                        THURSDAY, APRIL 15, 1999

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

                Opening Statement of Senator Jesse Helms

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

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

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

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

 
            CURRENT AND GROWING MISSILE THREATS TO THE U.S.

                              ----------                              

                        TUESDAY, APRIL 20, 1999

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

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

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

            Prepared Statement of Hon. James R. Schlesinger

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

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

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

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

           Prepared Statement of Hon. William Schneider, Jr.

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

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

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

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

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

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

               Prepared Statement of Hon. James R. Lilley

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                              ----------                              

                          TUESDAY, MAY 4, 1999

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

               Prepared Statement of Senator Jesse Helms

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

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

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

              Prepared Statement of Senator Richard Shelby

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

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

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

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

              Prepared Statement of Dr. William R. Graham

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

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

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

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

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

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

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

              Prepared Statement of Dr. Richard L. Garwin

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

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

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

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

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

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

               Prepared Statement of Dr. David C. Wright

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

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

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

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

                               Appendix A

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

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

           Prepared Statement of Senator Joseph R. Biden, Jr.

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

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

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

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

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

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

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

                              ----------                              

                         WEDNESDAY, MAY 5, 1999

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

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

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

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

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

    Senator Hagel. Mr. Lehman.

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

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

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

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

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

                [Remarks, November 1992, published 1993]

                           Changing Realities

                         (Ronald F. Lehman II)

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

                                 ______
                                 

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

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

             (Remarks by the Honorable Ronald F. Lehman II)

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

    Senator Hagel. General Habiger.

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

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

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

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

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

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

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

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

 
               ABM TREATY, START II, AND MISSILE DEFENSE

                              ----------                              

                         THURSDAY, MAY 13, 1999

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                  TABLE 1_MOSCOW ABM SYSTEM MILESTONES

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

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

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

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

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

                                 ______
                                 

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 

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

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

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

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

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

                     INTERCEPTOR VELOCITIES_KM./SEC.

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

\1\ Not available but likely approximation.

                  DR. JOHN FOSTER'S 1972 TMD PARAMETERS

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

                1997 ABM TREATY PROTOCOLS' TMD PARAMETERS

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

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

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

  ANNEX 3_POST SOVIET UNION RUSSIAN MISSILE & AIR WEAPONS DEVELOPMENT

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

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

 
                   THE LEGAL STATUS OF THE ABM TREATY

                              ----------                              

                         TUESDAY, MAY 25, 1999

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

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

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

        Prepared Statement of Douglas J. Feith and George Miron

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

                                  and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Article 34.2 of the 1978 Vienna Convention provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                 ______
                                 

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

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

                            THE WHITE HOUSE

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

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

                            February 9, 1999

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

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

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

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

                                 ______
                                 

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

Hoinkes responded

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

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

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

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

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

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

           Prepared Statement of Professor Michael J. Glennon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                               Article I

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

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

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

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

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

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

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

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

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

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

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

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

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

                              ----------                              

                        WEDNESDAY, MAY 26, 1999

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

               Prepared Statement of Senator Jesse Helms

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

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

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

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

             Prepared Statement of Hon. Henry A. Kissinger

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

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

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

                              ----------                              

                      THURSDAY, SEPTEMBER 16, 1999

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

               Prepared Statement of Senator Jesse Helms

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

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

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

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

                Prepared Statement of Robert D. Walpole

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                              ----------                              

                               APPENDIX 1

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

                               MEMORANDUM

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

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

    Attachment.

 The Current and Growing Ballistic Missile Threat to the United States

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He added that:

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

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

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

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

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

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

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

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

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

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

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

With respect to Brazil, then-DCI Studeman noted:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          With major forces of change still at play in Russia, the 
        Panel believes the Estimate's discussion of unauthorized launch 
        is superficial and may be overly sanguine. All agree that a 
        launch unauthorized by the Russian political leadership is a 
        remote possibility. But it would appear to be technically 
        possible.
                                 ______
                                 
                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                      May 12, 1999.

                               MEMORANDUM

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

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

    Attachment.

            Ballistic Missile Defense: Technological Issues

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

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

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

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

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

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

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

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

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

 Upgraded Early Warning Radars (UEWR)

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

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

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

 Space Based Infrared System (SBIRS)

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

 In-Flight Interceptor Communications System (IFICS)

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

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

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

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

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

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

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

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

    The current defense plan for ``C1'' relies upon five UEWR's to 
alert the U.S. Space Command of an incoming missile threat. It also 
relies upon one X-band microwave radar system to detect the RV, 
identify it as such, and to discriminate between the RV and other 
objects such as counter-measures. While the NMD system will be able to 
track up to 1000 objects at a time, the reliance upon the one XBR will 
make the system vulnerable to a variety of masking counter-measures. As 
a result, the ``C1'' architecture will not be as effective against 
technologically-sophisticated adversaries, such as Russia.
    Once SBIRS (High) is included in the ``C1'' architecture and SBIRS 
(Low) in the ``C2'' architecture, a number of space-based infrared 
sensors will be available to assist the XBR in identifying RVs and 
tracking them. This will add a basic infrared detection capability to 
the XBR's microwave radar, making several types of countermeasures less 
effective in hiding RVs. Once satellites are placed in both high and 
low orbits, the resolution of the infrared imagery will be greatly 
improved. Moreover, a number of counter-stealth technologies (e.g., 
laser radars and multi-colored infrared sensors) can only be 
capitalized upon via the use of space-based platforms. However, due to 
budget constraints, it does not appear that SBIRS (High) will be 
available until 2006 or later.
    Both SBIRS systems will provide sufficiently accurate tracking data 
to allow the conduct of an intercept without the XBR being in the loop. 
The current DSP constellation cannot do this. However, none of the 
Administration's plans--``C1'', ``C2'', or ``C3''--calls for the use of 
SBIRS in this fashion. This is due to ABM Treaty compliance 
considerations.
                                 ______
                                 
                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                      May 24, 1999.

                               MEMORANDUM

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

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

    Attachment.

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

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

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

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

2. The collapse of the Soviet Union and the end of the 1972 Anti-
        Ballistic Missile Treaty: A Memorandum of Law by David Rivkin 
        and Lee Casey
    The ABM Treaty became extinct when the Soviet Union dissolved. 
Treaties are a species of contract that may be rendered impossible, and 
discharged as a matter of law, by the disappearance of a treaty 
partner. Under the applicable rules of international and constitutional 
law, the ABM Treaty could have survived the Soviet Union's dissolution 
only if one or more states survived that both continued the Soviet 
Union's sovereignty, its international legal personality, and were 
capable of fulfilling the terms and conditions of the original treaty 
``unimpaired.'' No such state survived the Soviet Union.
    ``The President's assertion that Russia is an ABM Treaty party is 
incorrect. The Russian Federation is not merely a continuation of the 
Soviet Union under a different name and system of government, as the 
Soviet Union was a continuation of the Romanov Empire. When the Soviet 
Union dissolved in 1991, both that empire, and the Russian state around 
which it was built, collapsed. Boris Yeltsin's Russia is sui generis.
    Moreover, even if today's Russia could be considered to be a 
continuation of the Soviet Union, it could not itself carry out the 
Soviet Union's obligations under the ABM Treaty. That agreement was 
based upon a number of fundamental assumptions about the parties and 
their place in the world order during the Cold War. These assumptions 
now are obsolete. Moreover, the ABM Treaty had a critical geographical 
component, which at bottom guaranteed the United States and the Soviet 
Union unrestricted access for their ICBMs to the entire territory of 
the other party. The Russian Federation controls only a part of the 
Soviet Union's territory, and has lost control over many of the Soviet 
Union's most important population centers. Any treaty with Russia alone 
would not preserve the bargain the United States originally agreed to 
in 1972.
    The conclusion that the ABM Treaty automatically was discharged in 
1991 also is supported by application of either of the prevailing 
methods of analysis governing questions of state succession to 
treaties--the ``continuity'' analysis and the ``clean slate'' analysis. 
Under the continuity analysis, even if one or more former Soviet 
Republics was considered to continue the U.S.S.R.'s international legal 
personality, the ABM Treaty could not have survived because it was a 
bilateral treaty ``personal'' to the Soviet Union. Such treaties are 
automatically discharged when one treaty partner disappears. Under the 
clean slate analysis, one or more of the former Soviet Republics would 
have to agree to undertake the Soviet Union's ABM Treaty obligations, 
and the United States would have to accept this new state as a treaty 
partner. This acceptance would constitute the creation of a new treaty, 
and could only be effected with the advice and consent of the Senate.
    Today, the ABM Treaty can be revived only with the participation of 
the United States Senate. The substitution of one or more former Soviet 
Republics for the Soviet Union would fundamentally change the ABM 
Treaty's original bargain, to which the Senate consented. The President 
cannot, on his own authority, change the ABM Treaty in so fundamental a 
manner without obtaining the Senate's advice and consent again.
                                 ______
                                 
                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                      May 25, 1999.

                               MEMORANDUM

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

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

    Attachment.

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

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

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

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

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

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

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

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

    As such, it is clear that China thinks quite differently about the 
utility of nuclear ICBMs than did the Soviet Union. Moreover, the 
matter of Taiwan--viewed by China as an internal matter--is unique to 
the U.S.-Chinese relationship. For these reasons, and doubtless many 
others not mentioned here, it would be ill-advised for the United 
States to assume that Cold War formulations such as MAD (mutually-
assured destruction) will introduce strategic stability into the U.S.-
Chinese relationship. Indeed, because of the emphasis in Chinese 
doctrine on compulsion, rather than deterrence, the United States' 
vulnerability under the ABM Treaty is actually a destabilizing factor 
(encouraging China in its pursuit of advanced ballistic missile 
capabilities).
                                 ______
                                 
                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                September 13, 1999.

                               MEMORANDUM

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

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

    Attachment.

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

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

North Korea

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

Iran

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

Iraq

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

Russia

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

China

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

Forward-Based Threats

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

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

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

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

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

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

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

                               Discussion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    [Attachment.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                               Article I

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

                               Article II

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

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

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

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

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

        (a) operational;

        (b) under construction;

        (c) undergoing testing;

        (d) undergoing overhaul, repair or conversion; or

        (e) mothballed.

                              Article III

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

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

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

                               Article IV

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

                               Article V

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

                               Article VI

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

        (a) not to give missiles, launchers, or radars, other than ABM 
        interceptor missiles, ABM launchers, or ABM radars, 
        capabilities to counter strategic ballistic missiles or their 
        elements in flight trajectory, and not to test them in an ABM 
        mode; and

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

                              Article VII

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

                              Article VIII

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

                               Article IX

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

                               Article X

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

                               Article XI

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

                              Article XII

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

                              Article XIII

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

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

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

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

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

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

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

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

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

                              Article XIV

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

                               Article XV

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

                              Article XVI

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

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

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

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

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

                          1. Agreed Statements

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

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

                                  [A]

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

                                  [B]

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

                                  [C]

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

                                  [D]

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

                                  [E]

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

                                  [F]

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

                                  [G]

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

                        2. Common Understandings

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

A. Location of ICBM Defenses

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

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

B. ABM Test Ranges

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

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

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

C. Mobile ABM Systems

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

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

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

D. Standing Consultative Commission

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

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

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

E. Standstill

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

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

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

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

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

                        3. Unilateral Statements

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

A. Withdrawal from the ABM Treaty

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

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

B. Tested in an ABM Mode

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

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

C. No-Transfer Article of ABM Treaty

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

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

D. No Increase in Defense of Early Warning Radars

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

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

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

                                   I.

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

                                  II.

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

                                  III.

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

                                  IV.

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

                                   V.

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

                                  VI.

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

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

                                 ______
                                 

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

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

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

                               Article I

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

                               Article II

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

                              Article III

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

                               Article IV

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

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

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

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

                                 ______
                                 

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

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

          The Parties have also agreed on the following general 
        guidelines:

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

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

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

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

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

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

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

                        Geneva--November 1, 1978

                    STANDING CONSULTATIVE COMMISSION

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

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

                                   I.

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

                                  II.

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

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

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

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

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

                                  III.

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

                   STATEMENT BY COMMISSIONER BUCHHEIM

                            November 1, 1978

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

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

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

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

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

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

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

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

                   STATEMENT BY COMMISSIONER USTINOV

                            November 1, 1978

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

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

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

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

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

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

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

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

                          Geneva--June 6, 1985

                    STANDING CONSULTATIVE COMMISSION

                          COMMON UNDERSTANDING

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

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

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

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

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

                           September 26, 1997

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

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

                               Article I

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

                               Article II

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

                              Article III

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

                               Article IV

      For purposes of Treaty implementation:

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

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

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

                               Article V

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

                               Article VI

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

                              Article VII

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

                              Article VIII

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

                               Article IX

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

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

for the united states of america:
Madeleine Albright

for the republic of belarus:
I. Antonovich

for the republic of kazakhstan:
K. Tokayev

for the russian federation:
Y. Primakov

for ukraine:
H. Udovenko
                                 ______
                                 

                           September 26, 1997

                    STANDING CONSULTATIVE COMMISSION

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

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

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

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

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

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

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

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

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

for the united states of america:
Stanley Riveles

for the republic of belarus:
S. Agurtsou

for the republic of kazakhstan:
K. Zhanbatyrov

for the russian federation:
V. Koltunov

for ukraine:
0. Rybak
                                 ______
                                 

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

                                   I.

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

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

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

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

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

                                  II.

      The provisions of paragraph 1 of the First Agreed Statement of 
September 26, 1997, do not supersede or amend any provision of the 
Agreed Statement of November 1, 1978, and do not alter the meaning of 
the term ``tested in an ABM mode'' as that term is used in the Treaty, 
including the Agreed Statement of November 1, 1978.

                                  III.

      The Parties have agreed that, for the purposes of the First 
Agreed Statement of September 26, 1997, the velocity of an interceptor 
missile as well as the velocity of a ballistic target-missile shall be 
determined in an earth-centered coordinate system fixed in relation to 
the Earth.

                                  IV.

      The Parties have agreed that, for the purposes of the First 
Agreed Statement of September 26, 1997, the velocity of space-based 
interceptor missiles shall be considered to exceed 3 km/sec.
      These Common Understandings shall be considered an attachment to 
the First Agreed Statement of September 26, 1997, and shall constitute 
an integral part thereof.
                                 ______
                                 

                           September 26, 1997

                    STANDING CONSULTATIVE COMMISSION

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

      In connection with the provisions of the Treaty Between the 
United States of America and the Union of Soviet Socialist Republics on 
the Limitation of Anti-Ballistic Missile Systems of May 26, 1972, 
hereinafter referred to as the Treaty, the Parties to the Treaty,
      Expressing their commitment to strengthening strategic stability 
and international security,
      Emphasizing the importance of further reductions in strategic 
offensive arms,
      Recognizing the fundamental significance of the Treaty for the 
above objectives,
      Recognizing the necessity for effective systems to counter 
ballistic missiles other than strategic ballistic missiles,
      Considering it their common task to preserve the Treaty, prevent 
its circumvention and enhance its viability,
      Relying on the following principles that have served as a basis 
for reaching this agreement:

   the Parties are committed to the Treaty as a cornerstone of 
        strategic stability;

   the Parties must have the option to establish and to deploy 
        effective systems to counter ballistic missiles other than 
        strategic ballistic missiles, and such activity must not lead 
        to violation or circumvention of the Treaty;

   systems to counter ballistic missiles other than strategic 
        ballistic missiles may be deployed by each Party which will not 
        pose a realistic threat to the strategic nuclear force of 
        another Party and which will not be tested to give such systems 
        that capability;

   systems to counter ballistic missiles other than strategic 
        ballistic missiles will not be deployed by the Parties for use 
        against each other; and

   the scale of deployment--in number and geographic scope--of 
        systems to counter ballistic missiles other than strategic 
        ballistic missiles by any Party will be consistent with 
        programs for ballistic missiles other than strategic ballistic 
        missiles confronting that Party;

      Have, within the framework of the Standing Consultative 
Commission, with respect to systems to counter ballistic missiles other 
than strategic ballistic missiles with interceptor missiles whose 
velocity exceeds 3 km/sec over any part of their flight trajectory, 
hereinafter referred to as systems covered by this Agreed Statement, 
reached agreement on the following:

        1. Each Party undertakes that, in the course of testing, 
        separately or in a system, land-based, sea-based, and air-based 
        interceptor missiles, interceptor missile launchers, and 
        radars, of systems covered by this Agreed Statement, which are 
        not anti-ballistic missile (ABM) interceptor missiles, ABM 
        launchers, or ABM radars, respectively:

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

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

        2. Each Party, in order to preclude the possibility of 
        ambiguous situations or misunderstandings related to compliance 
        with the provisions of the Treaty, undertakes not to develop, 
        test, or deploy space-based interceptor missiles to counter 
        ballistic missiles other than strategic ballistic missiles, or 
        space-based components based on other physical principles, 
        whether or not part of a system, that are capable of 
        substituting for such interceptor missiles.

        3. In order to enhance confidence in compliance with the 
        provisions of the Treaty, the Parties shall implement the 
        provisions of the Agreement on Confidence-Building Measures 
        Related to Systems to Counter Ballistic Missiles Other Than 
        Strategic Ballistic Missiles of September 26, 1997, hereinafter 
        referred to as the Confidence-Building Measures Agreement, with 
        respect to systems covered by this Agreed Statement and not 
        subject to the Confidence-Building Measures Agreement on the 
        date of its entry into force. Each such system shall become 
        subject to the provisions of the Confidence-Building Measures 
        Agreement no later than 180 days in advance of the planned date 
        of the first launch of an interceptor missile of that system. 
        All information provided for in the Confidence-Building 
        Measures Agreement shall initially be provided no later than 30 
        days after such a system becomes subject to the provisions of 
        the Confidence-Building Measures Agreement.

        4. In order to ensure the viability of the Treaty as 
        technologies related to systems to counter ballistic missiles 
        other than strategic ballistic missiles evolve, and in 
        accordatice with Article XIII of the Treaty, the Parties 
        undertake to hold consultations and discuss, within the 
        framework of the Standing Consultative Commission, questions or 
        concerns that any Party may have regarding activities involving 
        systems covered by this Agreed Statement, including questions 
        and concerns related to the implementation of the provisions of 
        this Agreed Statement.

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

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

for the united states of america:
Stanley Riveles

for the republic of belarus:
S. Agurtsou

for the republic of kazakhstan:
K. Zhanbatyrov

fpr the russian federation:
V. Koltunov

for ukraine:
O. Rybak
                                 ______
                                 

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

                                   I.

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

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

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

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

      With respect to subparagraphs (a), (b), or (c), such a missile 
shall be considered an interceptor missile in all its launches.

                                  II.

      The Parties have agreed that, for the purposes of the Second 
Agreed Statement of September 26, 1997, the velocity of an interceptor 
missile as well as the velocity of a ballistic target-missile shall be 
determined in an earth-centered coordinate system fixed in relation to 
the Earth.

                                  III.

      The Parties have agreed that for the purposes of the Second 
Agreed Statement of September 26, 1997, the velocity of space-based 
interceptor missiles shall be considered to exceed 3 km/sec.

                                  IV.

      For systems to counter ballistic missiles other than strategic 
ballistic missiles with interceptor missiles whose velocity exceeds 3 
km/sec over any part of their flight trajectory, that become subject to 
the Confidence-Building Measures Agreement in accordance with paragraph 
3 of the Second Agreed Statement of September 26, 1997, the Parties 
understand that, in connection with the provisions of paragraph 2(b) of 
Section IV of the Confidence-Building Measures Agreement, detailed 
information on such systems shall be provided in a form and scope as 
agreed upon by the Parties.
      These Common Understandings shall be considered an attachment to 
the Second Agreed Statement of September 26, 1997, and shall constitute 
an integral part thereof.
                                 ______
                                 

                           September 26, 1997

AGREEMENT ON CONFIDENCE-BUILDING MEASURES RELATED TO SYSTEMS TO COUNTER 
       BALLISTIC MISSILES OTHER THAN STRATEGIC BALLISTIC MISSILES

      The States that have signed this Agreement, hereinafter referred 
to as the Parties,
      Desiring to promote reciprocal openness, greater trust between 
the Parties, and the preservation of strategic stability,
      Declaring their intention to implement, on a reciprocal basis, 
confidence-building measures with respect to systems to counter 
ballistic missiles other than strategic ballistic missiles,
      Have agreed as follows:

                         I. General Provisions

      1. Systems subject to this Agreement shall be: for the United 
States of America--the Theater High-Altitude Area Defense (THAAD) 
System and the Navy Theater-Wide Theater Ballistic Missile Defense 
Program, known to the other Parties by the same names; for the Russian 
Federation--the S-300V system, known to the United States of America as 
the SA-12 system; for the Republic of Belarus--the S-300V system, known 
to the United States of America as the SA-12 system; for Ukraine--the 
S-300V system, known to the United States of America as the SA-12 
system; and other systems as agreed upon by the Parties in the future.
      2. The Parties shall conduct an initial exchange of information 
and notifications, as provided for in this Agreement, no later than 90 
days after entry into force of this Agreement, reflecting the status as 
of the date of its entry into force, and update this information 
annually, unless otherwise agreed. Information shall be updated 
reflecting the status as of January 1 of each year and provided no 
later than April 1 of each year.

                           II. Notifications

      1. Each Party shall provide notifications to the other Parties of 
test ranges and other test areas where launches of interceptor missiles 
of systems subject to this Agreement will take place. Notifications of 
test ranges and other test areas shall include the names of ranges 
(test areas) and their locations. Such notifications shall be provided 
either within 30 days after entry into force of this Agreement, or no 
later than 90 days in advance of the first launch of an interceptor 
missile of a system subject to this Agreement at each test range (test 
area).
      2. Each Party shall provide notification to the other Parties of 
each launch of an interceptor missile of systems subject to this 
Agreement, if during that launch a ballistic target-missile is used. In 
this connection:

        (a) an interceptor missile launch notification shall specify 
        the name of the test range (test area) where the interceptor 
        missile launch will take place; the type (designation) of the 
        interceptor missile; the planned date of the interceptor 
        missile launch; the planned launch point of the interceptor 
        missile (geographic coordinates; for air-based systems the 
        geographic coordinates of the projection of the planned launch 
        point of the interceptor missile onto the Earth's surface shall 
        be specified); the planned launch point of the ballistic 
        target-missile (geographic coordinates);

        (b) each interceptor missile launch notification shall be 
        provided no later than 10 days in advance of the planned date 
        of the interceptor missile launch and shall be effective for 
        seven days beginning with the planned date of that launch; and

        (c) if the launch of the interceptor missile will not occur or 
        has not occurred within the specified 7-day period, the Party 
        that planned to carry out the launch of the interceptor missile 
        shall provide a notification thereof no later than 24 hours 
        after the expiration of the 7-day period. Such a notification 
        shall state that the interceptor missile launch has not 
        occurred and shall either specify a new launch date, which will 
        establish the beginning of a new 7-day period, or state that a 
        notification of a new launch date will be made in accordance 
        with the procedure specified in subparagraph (b) of this 
        paragraph.

        III. Demonstrations of Systems and Observations of Tests

      Any Party may on a voluntary basis arrange, for any other Party 
or Parties, a demonstration of its systems or their components subject 
to this Agreement or an observation of their tests. In each specific 
case, the participating Parties shall agree in advance on the purpose 
of, and the arrangements for, such demonstrations and observations.

                             IV. Assurances

      Each Party shall provide assurances that it will not deploy 
systems subject to this Agreement in numbers and locations so that 
these systems could pose a realistic threat to the strategic nuclear 
force of another Party. The measures used to provide such assurances 
shall include:
      1. Each Party shall provide to the other Parties, in a form and 
scope as agreed upon by the Parties, an assessment of the programs with 
respect to the development, testing and deployment of ballistic 
missiles, other than strategic ballistic missiles, confronting that 
Party.
    2. For each of its systems subject to this Agreement, each Party 
shall provide the following information:

        (a) the name, type (designation), and basing mode of the system 
        as well as of its interceptor missiles, launchers, and 
        associated radars;

        (b) the general concept of operation; the status of plans and 
        programs; and, in addition, for systems in testing, the number 
        of systems it plans to possess; the information shall be 
        provided in a form and scope as agreed upon by the Parties;

        (c) the class and type of basing platform:

                (i) for land-based systems: the number of launchers in 
                a battalion;

                (ii) for sea-based systems: the class and type of each 
                ship, and the number of launchers on a ship of that 
                class capable of launching interceptor missiles of each 
                type;

                (iii) for air-based systems: the type of each aircraft, 
                and the number of interceptor missiles each aircraft is 
                capable of carrying;

        (d) the number of interceptor missiles of a fully loaded 
        launcher.

      3. For components of each of its systems subject to this 
Agreement, each Party shall provide the following information:

        (a) for a completely assembled interceptor missile: the number 
        of stages, the length, the maximum diameter, the type of 
        propellant (solid or liquid), maximum velocity demonstrated 
        during launches, and the length and diameter of the interceptor 
        missile launch canister;

        (b) for the interceptor missile launcher: the maximum number of 
        interceptor missiles of a fully loaded launcher; and

        (c) for the radar: the frequency band (in designations adopted 
        by the International Telecommunication Union) and potential, 
        expressed as a value that is not exceeded by the radar's 
        potential. The potential of a radar shall mean the product of 
        its mean emitted power in watts and its antenna area in square 
        meters.

                    V. Additional Voluntary Measures

      Each Party may provide on a voluntary basis any other information 
or any other notifications not specified elsewhere in this Agreement. 
The topics, amount, and time frame for such information and 
notifications shall be such as each Party determines.

                  VI. Implementation of the Agreement

      1. To promote the objectives and implementation of the provisions 
of this Agreement, the Parties, within the framework of the Standing 
Consultative Commission established in accordance with the Treaty 
Between the United States of America and the Union of Soviet Socialist 
Republics on the Limitation of Anti-Ballistic Missile Systems of May 
26, 1972, shall consider:

        (a) issues concerning implementation of the obligations assumed 
        under this Agreement, as well as related situations which may 
        be considered ambiguous; and

        (b) amendments to the provisions of this Agreement and other 
        possible proposals on further increasing its viability.

      2. The Parties shall use the Nuclear Risk Reduction Center 
channels or the equivalent government-to-government communications 
links for providing the notifications and for exchanging the 
information provided for in Sections II, IV and V of this Agreement.

                          VII. Confidentiality

      Each Party undertakes not to release to the public the 
information provided pursuant to this Agreement except with the express 
consent of the Party that provided such information.

                  VIII. Entry into Force and Duration

      This Agreement shall enter into force simultaneously with entry 
into force of the First Agreed Statement of September 26, 1997, 
Relating to the Treaty Between the United States of America and the 
Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic 
Missile Systems of May 26, 1972, and the Second Agreed Statement of 
September 26, 1997, Relating to the Treaty Between the United States of 
America and the Union of Soviet Socialist Republics on the Limitation 
of Anti-Ballistic Missile Systems of May 26, 1972, and shall remain in 
force so long as either of those Agreed Statements remains in force.

      DONE at New York City on September 26, 1997, in five copies, each 
in the English and Russian languages, both texts being equally 
authentic.

for the united states of america:
Stanley Riveles

for the republic of belarus:
S. Agurtsou

for the republic of kazakhstan:
K. Zhanbatyrov

for the russian federation:
V. Koltunov

for ukraine:
O. Rybak
                                 ______
                                 

                   September 26, 1997--New York City

                    STANDING CONSULTATIVE COMMISSION

JOINT STATEMENT ON THE ANNUAL EXCHANGE OF INFORMATION ON THE STATUS OF 
    PLANS AND PROGRAMS WITH RESPECT TO SYSTEMS TO COUNTER BALLISTIC 
            MISSILES OTHER THAN STRATEGIC BALLISTIC MISSILES

      1. The Parties understand that in implementing the provisions of 
paragraph 2(b) of Section IV of the Agreement on Confidence-Building 
Measures Related to Systems to Counter Ballistic Missiles Other Than 
Strategic Ballistic Missiles of September 26, 1997, each Party will 
provide information annually on the status of its plans and programs 
with respect to systems to counter ballistic missiles other than 
strategic ballistic missiles that includes:

        (a) whether or not that Party has plans before April 1999 to 
        test, against a ballistic target-missile, land-based, sea-based 
        or air-based interceptor missiles whose velocity exceeds 3 km/
        sec over any part of their flight trajectory;

        (b) whether or not that Party has plans to develop such systems 
        with interceptor missiles whose velocity over any part of their 
        flight trajectory exceeds 5.5 km/sec for land-based and air-
        based systems or 4.5 km/sec for sea-based systems; and

        (c) whether or not that Party has plans to test such systems 
        against ballistic target-missiles with multiple independently 
        targetable reentry vehicles or against reentry vehicles 
        deployed or planned to be deployed on strategic ballistic 
        missiles.

      2. The Parties understand that should any Party have questions or 
concerns regarding activity related to any change in the statement on 
plans of any other Party, the Parties will, in accordance with Article 
XIII of the Treaty Between the United States of America and the Union 
of Soviet Socialist Republics on the Limitation of Anti-Ballistic 
Missile Systems of May 26, 1972, hereinafter referred to as the Treaty, 
the Second Agreed Statement of September 26, 1997, Relating to the 
Treaty, and Section VI of the Agreement on Confidence-Building Measures 
Related to Systems to Counter Ballistic Missiles Other Than Strategic 
Ballistic Missiles of September 26, 1997, conduct consultations, within 
the framework of the Standing Consultative Commission, to discuss such 
questions or concerns, as well as possible proposals for further 
increasing the viability of the Treaty, including possible proposals to 
amend the Second Agreed Statement of September 26, 1997.

S.R. (United States of America)

S.A. (Republic of Belarus)

K.Z. (Republic of Kazakhstan

V.K. (Russian Federation)

O.R. (Ukraine)
                                 ______
                                 

                           September 26, 1997

          REGULATIONS OF THE STANDING CONSULTATIVE COMMISSION

      In accordance with Article VIII of the Memorandum of 
Understanding of September 26, 1997, Relating to the Treaty Between the 
United States of America and the Union of Soviet Socialist Republics on 
the Limitation of Anti-Ballistic Missile Systems of May 26, 1972, the 
United States of America, the Republic of Belarus, the Republic of 
Kazakhstan, the Russian Federation and Ukraine have agreed as follows:

                                   I.

      1. Each Party shall have the right to be represented on the 
Standing Consultative Commission, hereinafter referred to as the 
Commission.
      2. Each Party shall designate a Commissioner, a Deputy 
Commissioner, and such members, advisors, and experts of its delegation 
to the Commission as it deems necessary.
      3. Each Party shall have the right to participate in all 
activities of the Commission.

                                  II.

      1. At any time, Commissioners may raise for discussion any matter 
that is within the competence of the Commission.
      2. Commissioners may also, at any time, transmit to or request 
from the other Commissioners, oral or written communications.
      3. Commissioners shall, when possible, inform each other in 
advance of matters to be raised for discussion in the Commission.
      4. Commissioners shall alternately preside over the meetings of a 
session of the Commission, unless otherwise agreed.
      5. Each Party may direct that the authorities and functions of a 
Commissioner may be exercised by a Deputy Commissioner or other 
authorized person.
      6. The Commission may establish working groups to undertake such 
activities as it may direct, including studying and preparing specific 
matters.

                                  III.

      1. The Commission shall be convened for sessions no less than 
twice a year. Such sessions proposed during the intersessional period 
shall be convened on a date, no later than 45 days after the date 
initially proposed, and with a duration agreed to by the United States 
of America and at least one other Party.
      2. Agreement on the commencement date and duration of a 
forthcoming session may be reached by consensus during a session in 
progress.
      3. During the intersessional period, any Commissioner may propose 
convening a session of the Commission by making a proposal or counter-
proposal to the other Commissioners on the commencement date and 
duration of the forthcoming session at least 30 days in advance of the 
proposed commencement date of the session.
      4. The agenda for a session of the Commission shall include all 
matters proposed by any Commissioner and communicated to the other 
Commissioners in advance of the session. Any matter raised during the 
session by any Commissioner may be considered in the Commission.
      5. Sessions of the Commission shall be held in the city of 
Geneva, unless otherwise agreed.

                                  IV.

      1. Any matter within the competence of the Commission may be the 
subject of an agreement.
      2. Agreements may be recorded in any form acceptable to the 
Parties participating in the session.
      3. The negotiation of the text of an agreement during a session 
of the Commission shall be done on the basis of consensus of the 
Parties participating in the session.
      4. The United States of America shall notify, through diplomatic 
channels, all Parties not represented in a session of the Commission, 
of the final text of an agreement no later than 15 days after the final 
text has been negotiated in that session of the Commission.
      5. A Party shall approve an agreement negotiated in the 
Commission by signing it in the Commission or by submitting an 
instrument of approval. In addition, an agreement shall be considered 
approved by a Party if it fails to submit a diplomatic note in 
accordance with subparagraph 7(b) of this Section, or if its objections 
are withdrawn pursuant to subparagraph 7(b) or paragraph 8 of this 
Section.
      6. Each agreement negotiated in the Commission shall be 
considered adopted when all Parties have approved the agreement in 
accordance with paragraph 5 of this Section and shall enter into force 
on the date of its adoption, unless all Parties have agreed on a later 
date.
      7. A Party that has not approved an agreement negotiated during a 
session of the Commission shall be bound by the agreement in one of two 
ways:

        (a) if it submits an instrument of approval to all other 
        Parties; or

        (b) if it fails to submit a diplomatic note, specifying its 
        objections to the agreement, to all other Parties within 30 
        days after receipt of a notification pursuant to paragraph 4 of 
        this Section. Withdrawal of all of its objections by a Party 
        shall be regarded as its approval of that agreement.

      8. Any diplomatic note submitted in accordance with subparagraph 
7(b) of this Section shall include the express intention of the 
objecting Party to address its objection in the next session of the 
Commission. Failure of an objecting Party to attend such session shall 
be considered its withdrawal of its objection unless that objection is 
renewed by diplomatic note to all other Parties prior to the closing of 
that session.
      9. If the text of an agreement, negotiated in the Commission in 
accordance with paragraph 3 of this Section, is amended in order to 
resolve any Party's objection or for any other reason, the amended 
agreement shall constitute a new agreement subject to the provisions of 
paragraphs 4, 5, 6, 7 and 8 of this Section.

                                   V.

      1. Matters raised and discussed in the Commission, as well as the 
results of discussions, and any agreements reached, may be recorded in 
documents which shall be done in English and Russian, both texts being 
equally authentic, and each Party shall be provided with a complete set 
of such documents.
      2. The Commission shall conduct its proceedings in private and 
may not make its proceedings public without the express consent of all 
Commissioners. The texts of agreements adopted by the Parties may be 
made public, unless otherwise agreed.
      3. The official languages of the Commission shall be English and 
Russian.
      4. Each Party shall bear the expenses connected with its 
participation in the Commission.

                                  VI.

      1. These Regulations shall supersede the Regulations of the 
Standing Consultative Commission approved in accordance with the 
Protocol of May 30, 1973. The provisions of the Memorandum of 
Understanding Between the Government of the United States of America 
and the Government of the Union of Soviet Socialist Republics Regarding 
the Establishment of a Standing Consultative Commission of December 21, 
1972, shall apply to the extent that they are consistent with the 
provisions of these Regulations.
      2. These Regulations shall enter into force simultaneously with 
entry into force of the Memorandum of Understanding of September 26, 
1997, Relating to the Treaty Between the United States of America and 
the Union of Soviet Socialist Republics on the Limitation of Anti-
Ballistic Missile Systems of May 26, 1972. The Commission may revise, 
repeal, or replace these Regulations to the extent and in such manner 
as the Commission deems necessary.

      DONE at New York City on September 26, 1997, in five copies, each 
in the English and Russian languages, both texts being equally 
authentic.

for the united states of america:
Stanley Riveles

for the republic of belarus:
S. Agurtsou

for the republic of kazakhstan:
K. Zhanbatyrov

for the russian federation:
V. Koltunov

for ukraine:
O. Rybak
                                 ______
                                 

                       Geneva--November 21, 1977

   COMMUNIQUE OF THE US-USSR STANDING CONSULTATIVE COMMISSION ON THE 
REVIEW OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNION 
   OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-BALLISTIC 
                    MISSILE SYSTEMS OF MAY 26, 1972

      In accordance with the provisions of Article XIV of the Treaty 
Between the United States of America and the Union of Soviet Socialist 
Republics on the Limitation of Anti-Ballistic Missile Systems of May 
26, 1972, which entered into force on October 3, 1972, and was amended 
by the Protocol thereto of July 3, 1974, the Parties to the Treaty, 
together conducted a review of the Treaty after five years of its 
operation. By agreement between the Parties, the review was conducted 
from November 4 to November 21, 1977, in a special session of the 
Standing Consultative Commission which was convened for that purpose.
      The Parties agree that the Treaty is operating effectively, thus 
demonstrating the mutual commitment of the USA and the USSR to the goal 
of limiting nuclear arms and to the principle of equal security, serves 
the security interests of both Parties, decreases the risk of outbreak 
of nuclear war, facilitates progress in the further limitation and 
reduction of strategic offensive arms, and requires no amendment at 
this time.
      The Parties note, in connection with the conduct of the review, 
that during the aforementioned period of operation of the Treaty 
consultations and discussions have been held in the Standing 
Consultative Commission on matters pertaining to promoting the 
implementation of the objectives and provisions of the Treaty. These 
consultations and discussions have been productive and useful in 
clarifying the mutual understanding of the Parties concerning certain 
provisions of the Treaty, in working out appropriate procedures for 
implementation of its provisions, and in resolving a number of 
questions related to complete and precise implementation of the 
provisions of the Treaty.
      Mindful of their obligation to conduct together a review of the 
Treaty at five-year intervals, the Parties will continue the process of 
consultation concerning the implementation, as well as the enhancement 
of the viability and effectiveness, of the provisions of the Treaty.
      The Parties reaffirm their mutual commitment to the objectives 
and provisions of the Treaty and their resolve to maintain and further 
increase the viability and effectiveness of the Treaty.
                                 ______
                                 

                       Geneva--December 15, 1982

   COMMUNIQUE OF THE US-USSR STANDING CONSULTATIVE COMMISSION ON THE 
 SECOND REVIEW OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA AND 
   THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE LIMITATION OF ANTI-
                       BALLISTIC MISSILE SYSTEMS

      Pursuant to the provisions of Article XIV of the Treaty Between 
the United States of America and the Union of Soviet Socialist 
Republics on the Limitation of Anti-Ballistic Missile Systems of May 
26, 1972, which entered into force on October 3, 1972, and was amended 
by the Protocol thereto of July 3, 1974, the Parties together conducted 
a review of the Treaty after its second five-year period of operation. 
By agreement between the Parties, the review was conducted from 
November 9, 1982, to December 15, 1982, in a session of the Standing 
Consultative Commission specially convened for that purpose.
      During the course of the review, the Parties carefully examined 
the Preamble and Articles of the Treaty and Protocol and evaluated 
their implementation in the period covered by the review.
      The United States and the Soviet Union each reaffirmed its 
commitment to the aims and objectives of the Treaty, and to the process 
of consultation within the framework of the Standing Consultative 
Commission to promote the implementation of the objectives and 
provisions of the Treaty and the Protocol thereto of July 3, 1974.
                                 ______
                                 

                  Geneva, Switzerland--August 31, 1988

     United States Unilateral Statement Following ABM Treaty Review

      The United States and the Soviet Union conducted the third Review 
of the ABM Treaty as required at five-year intervals by the provisions 
of that Treaty. The Review was conducted from August 24, 1988 to August 
31, 1988. The U.S. Delegation was led by William F. Burns, Director of 
the Arms Control and Disarmament Agency.
      During the Review, the United States emphasized the importance of 
Soviet violations of the ABM Treaty, which are a threat to the 
viability of the Treaty. Throughout the Review Conference, the Soviet 
Union gave no indication that it was prepared to correct the violations 
without linking their agreement to do so to unacceptable demands.
      Specifically, the United States discussed with the Soviets its 
serious concern that the Soviet Union's deployment of a large phased-
array radar near Krasnoyarsk constitutes a significant violation of a 
central element of the ABM Treaty. Such radars take years to build and 
are a key to providing a nation-wide defense--which is prohibited by 
the Treaty. The Treaty's restrictions on the location, orientation, and 
functions of such radars are, thus, essential provisions of the Treaty. 
Hence, the Krasnoyarsk violation is very serious, particularly when it 
is recognized that the radar constitutes one of a network of such 
radars that have the inherent potential for attack assessment in 
support of ballistic missile defense.
      In order for the Soviet Union to correct this violation, the 
Krasnoyarsk radar must be dismantled. The United States has been urging 
the Soviet Union for more than five years, both in the Standing 
Consultative Commission established by the Treaty and in other 
diplomatic channels, to correct this clear violation by dismantling the 
radar. During the Review, the U.S. outlined the specific Soviet actions 
necessary to correct this violation in a verifiable manner. The United 
States has also made clear that the continuing existence of the 
Krasnoyarsk radar makes it impossible to conclude any future arms 
agreements in the START or Defense and Space areas. The United States 
has observed a slowdown in construction, but this slowdown, or even a 
full construction freeze, would not be sufficient either to correct the 
Treaty violation or to meet U.S. concerns about the significant impact 
of the violation.
      The United States cannot continue indefinitely to tolerate this 
clear and serious Treaty violation. The violation must be corrected. 
Until the Krasnoyarsk radar is dismantled, it will continue to raise 
the issue of material breach and proportionate responses. Nothing that 
occurred during the Review Conference or its completion should be 
interpreted as derogating in any way from rights the U.S. has under 
international law with regard to any Soviet violation of the Treaty. 
Since the Soviet Union was not prepared to satisfy U.S. concerns with 
respect to the Krasnoyarsk radar violation at the Review Conference, 
the United States will have to consider declaring this continuing 
violation a material breach of the Treaty. In this connection, the 
United States reserves all its rights, consistent with international 
law, to take appropriate and proportionate responses in the future.
      During the ABM Treaty Review, the United States also discussed 
the violation of the ABM Treaty involving the illegally deployed radars 
at Gomel. The U.S. also reserves its rights to respond to this 
violation in an appropriate and proportionate manner. The United States 
also discussed with the Soviet Union a number of ABM-related compliance 
concerns, the totality of which suggests that the Soviet Union may be 
preparing a prohibited ABM territorial defense. This is a particularly 
serious concern. As the President has noted, such a development ``would 
have profound implications for the vital East-West balance. A 
unilateral Soviet territorial ABM capability acquired in violation of 
the ABM Treaty could erode our deterrent and leave doubts about its 
capability.''
      The U.S. continues to have deep, continuing concerns about the 
implications of the pattern of Soviet non-compliance with the ABM 
Treaty. As President Reagan observed in December 1987:

          No violations of a treaty can be considered to be a minor 
        matter, nor can there be confidence in agreements if a country 
        can pick and choose which provisions of an agreement it will 
        comply with. . . . correcting their violations will be a true 
        test of Soviet willingness to enter a more constructive 
        relationship and broaden the basis for cooperation between our 
        two countries on security matters.

      The U.S. will not accept Soviet violations or a double standard 
of Treaty compliance, and reserve the right to take appropriate and 
proportionate responses in the future.
                                 ______
                                 

                           September 1, 1988

  Soviet Statement in Connection with the Third Review of the Treaty 
Between the United States of America and the Union of Soviet Socialist 
     Republics on the Limitation of Anti-Ballistic Missile Systems

      In accordance with the provisions of the Treaty Between the USSR 
and the United States on the Limitation of Anti-Ballistic Missile 
Systems, talks were held in Geneva August 24-31, 1988 between 
representatives of the USSR and the United States to review the Treaty 
after another five years of its operation.
      The Soviet side proceeded on the basis that the review should 
lead to the strengthening of the ABM Treaty, which is of key 
significance for ensuring further progress in the disarmament sphere 
and strengthening strategic stability and international security. The 
preservation and strengthening of this Treaty is the common concern of 
its participants--the USSR and the United States.
      The USSR delegation conducted all the discussions in a non-
confrontational spirit, with the aim of seeking mutually acceptable 
decisions both as regards the political reaffirmation of the sides' 
commitment to the objectives and tasks of the Treaty, and as regards 
the quest for concrete technical decisions that could lead to the 
removal of mutual concerns in unclear situations that have arisen in 
the exchange of opinions between the sides.
      The Soviet delegation sought to ensure that the reaffirmation of 
commitment to the Treaty and the agreed outlines concerning ways of 
eliminating the two sides' concerns would be reflected in a joint 
statement or communique, that would be published as a result of the 
review of the Treaty's operation. Unfortunately, this proved impossible 
because of the American side's reluctance to give practical 
consideration to the Soviet side's concerns and its desire to reduce 
the entire review of the operation of the ABM Treaty to the acceptance 
by the Soviet side of the American demand for the dismantling of the 
Kranoyarsk radar station, which does not yet exist.
      On the basis of the results of the discussion, the American side 
published a unilateral statement which gives an unobjective assessment 
of the existing situation.
      The present statement by the USSR delegation sets forth the facts 
that give a true picture of the situation as regards compliance with 
the ABM Treaty and the nature of the discussions that took place.
      On the question of the radar station under construction in the 
Krasnoyarsk region, the Soviet side once again confirmed that this 
station is intended for the tracking of space objects and does not come 
under the ABM Treaty restrictions. Despite this, the United States 
continues to attribute missile attack warning functions to it. These 
American claims are based not on facts, but on assumptions, and 
subjective evaluations.
      In order to show goodwill, and in an attempt to remove the 
concern that had arisen on the part of the United States, we expressed 
readiness to dismantle the equipment of this station in a way that 
would be verifiable and would cause the United States no doubts, if an 
accord were reached on compliance with the ABM Treaty in the form in 
which it was signed in 1972.
      The American side also expressed concern in connection with the 
relocation of individual components of radar stations known in the 
United States as ``Pawn Shop'' and ``Flat Twin'' from the Sary Shagan 
testing range to the Gomel region, which the American side regards, 
without foundation, as the start of the deployment of ABM radar 
stations.
      On the basis of the facts we cited and a visit by U.S. official 
representatives to the Gomel region, the American side saw for itself 
that in fact the individual components of the ``Flat Twin'' radar 
station and the ``Pawn Shop'' van are being used in the region in 
question in order to set up measurement testing grounds for the testing 
and tuning of mirror antennas that are used widely in the country's 
national economy. These operations are in no way contrary to the ABM 
Treaty.
      At the same time, we stated that in the context of removing the 
two sides' concerns over questions of compliance with the ABM Treaty, 
the Soviet side would be prepared for a radical solution to the 
question of the remaining individual components of the ``Flat Twin'' 
radar station and the ``Pawn Shop'' van to which the American side 
refers.
      The American side once again raised the question that the Soviet 
Union could be preparing an ABM defense system for its territory. Here, 
the assertions cited earlier were enumerated, assertions to which the 
Soviet side had supplied the necessary replies. Neither any one of the 
questions raised individually nor all of them together provide grounds 
for the expression of such concern by the United States.
      The Soviet side also submitted a number of constructive proposals 
which, in the event of their implementation, would promote the 
resolution of other questions raised on both sides, namely:

   To draw up an accord to the effect that the sides would 
        inform each other beforehand about plans for the construction 
        of large phased-array radar stations and indicate their 
        purpose.
   To agree on features making it possible to distinguish ABM 
        radar stations from other radar stations.
   To draw up procedures for the dismantling or destruction of 
        ABM radar stations on testing ranges.
   To permit Soviet representatives to visit the American radar 
        station in Greenland and the construction of a launch site for 
        ``balloon rockets'' on Shemya Island, to enable the Soviet 
        Union to study on the basis of factual material .U.S actions 
        which, according to the information available, it assesses 
        either as a violation of the Treaty (the Greenland radar 
        station) or as a situation causing concern (the Shemya Island 
        construction site).

      Unfortunately, our proposals did not meet with a positive 
response from the American side. Contrary to the true state of affairs, 
it continues to issue unfounded denials or to claim that it does not 
see that serious Soviet concerns exist with regard to U.S. compliance 
with Treaty commitments. The American side did not respond to some of 
our proposals, and its answers on the other questions cannot be deemed 
satisfactory.
      Nor did the American side show willingness to take any steps to 
rectify the violations of the ABM Treaty which it has conmiitted.
      Since 1975, the Soviet side has been expressing concern over the 
U.S. deployment of large phased-array radar stations of the ``Pave 
Paws'' type on U.S. territory and elsewhere. The essence of our concern 
is that these large radar stations have parameters sufficient to carry 
out the tasks of ABM radar stations. In conjunction with the radar 
station at the Grand Forks base, these stations could provide a radar 
base for an ABM defense of US territory, which is incompatible with the 
provisions of Article 1 of the ABM Treaty prohibiting the creation of a 
base for ABM defense of the country's territory.
      Particular concern is caused on the Soviet side by the U.S. 
violation of the ABM Treaty in the deployment of a new ``Pave Paws'' 
large phased-array radar station in Greenland after the Treaty came 
into force, and the construction of a similar radar station in Britain. 
Under the ABM Treaty, the deployment of large phased-array radar 
stations having a potential exceeding 3 million watts is strictly 
regulated, taking into account the purpose of such radar stations. 
Missile attack warning radar stations with the above characteristics 
are permitted to be deployed only on the periphery of the national 
territory, oriented outward.
      The American large phased-array radar station at Thule 
(Greenland) has a potential considerably in excess of 3 million watts. 
The Thule region does not constitute a position on the perimeter of 
U.S. national territory. The American side itself has indicated that 
the radar station at Thule is intended for missile attack warning. 
Consequently, the deployment of a large phased-array radar station in 
the Thule region is a violation of the ABM Treaty.
      The construction that has begun of a similar radar station at 
Fylingdales (Britain) is a similar violation.
      The Soviet side also expressed other concerns with regard to U.S. 
compliance with the provision of the ABM Treaty.
      Seeking to find solutions to the specific issues that have 
arisen, the Soviet side demonstrated in practice its readiness to 
eliminate the two sides' concerns. Naturally, the quest for solutions 
should take place on a reciprocal basis and should not distract 
attention from the most important thing--the sides' reaffirmation of 
their commitment to the objectives and provisions of the ABM Treaty.
      Through no fault of ours, it proved impossible to achieve 
positive solutions to the questions examined at the talks. However, the 
Soviet side believes that joint efforts with the aim of seeking 
fundamental solutions could be continued, and we will work toward this. 
In particular a mechanism established by the Treaty exists for the 
examination of concerns expressed by the sides--the Standing 
Consultative Commission. The next session of the Soviet-American 
Standing Consultative Commission in Geneva in the fall of this year 
should be used specifically for this work, including work in accordance 
with instructions that could be given to the Standing Consultative 
Commission as a result of the forthcoming meeting between the USSR 
Foreign Minister and the U.S. Secretary of State.
                                 ______
                                 

                            October 1, 1993

  JOINT COMMUNIQUE: FOURTH REVIEW OF THE ANTI-BALLISTIC MISSILE (ABM) 
                                 TREATY

      The Fourth Review of the Treaty on the Limitation of Anti-
Ballistic Missile Systems was conducted in Geneva, Switzerland, from 
September 27 to October 1, 1993. The delegations that were present at 
the Review, representing the Republic of Belarus, the Russian 
Federation, Ukraine, and the United States of America, exchanged views 
on the operation of the Treaty, on rights and obligations under the 
Treaty, and on the question of state succession. Commitment to the ABM 
Treaty was reaffirmed and it was agreed that maintaining the viability 
of the Treaty in view of political and technological changes remains 
important. The delegations at the Review advocated continued efforts to 
strengthen the ABM Treaty.
                                 ______
                                 

                    PUBLIC LAW 106-38--JULY 22, 1999

                             113 STAT. 205

Public Law 106-38
106th Congress

                                 An Act

    To declare it to be the policy of the United States to deploy a 
                       national missile defense.

      Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

      This Act may be cited as the ``National Missile Defense Act of 
1999''.

SEC. 2. NATIONAL MISSILE DEFENSE POLICY.

      It is the policy of the United States to deploy as soon as is 
technologically possible an effective National Missile Defense system 
capable of defending the territory of the United States against limited 
ballistic missile attack (whether accidental, unauthorized, or 
deliberate) with funding subject to the annual authorization of 
appropriations and the annual appropriation of funds for National 
Missile Defense.

SEC. 3. POLICY ON REDUCTION OF RUSSIAN NUCLEAR FORCES.

      It is the policy of the United States to seek continued 
negotiated reductions in Russian nuclear forces.

    Approved July 22, 1999.

_______________________________________________________________________

legislative history H.R. 4 (S. 257) (S. 269):
house reports: No. 106-39, Pt. 1 (Comm. on Armed Services).
senate reports: No. 106-4 accompanying S. 257 (Comm. on Armed 
Services).
congressional record, Vol. 145 (1999):
        Mar. 18, considered and passed House.
        May 18, considered and passed Senate, amended, in lieu of S. 
257
        May 20, House concurred in Senate amendment.
weekly compilation of presidential documents, Vol. 35 (1999):
        July 23, Presidential statement.
                                 ______
                                 

                  For Immediate Release--July 23, 1999

                            THE WHITE HOUSE

                     office of the press secretary

                       STATEMENT BY THE PRESIDENT

      I have signed into law H.R. 4, the ``National Missile Defense Act 
of 1999.'' My Administration is committed to addressing the growing 
danger that rogue nations may develop and field long-range missiles 
capable of delivering weapons of mass destruction against the United 
States and our allies.
      Section 2 of this Act states that it is the policy of the United 
States to deploy as soon as technologically possible an effective 
National Missile Defense (NMD) system with funding subject to the 
annual authorization of appropriations and the annual appropriation of 
funds for NMD. By specifying that any NMD deployment must be subject to 
the authorization and appropriations process, the legislation makes 
clear that no decision on deployment has been made. This 
interpretation, which is confirmed by the legislative record taken as a 
whole, is also required to avoid any possible impairment of my 
constitutional authorities.
      Section 3 of the Act states that it is the policy of the United 
States to seek continued negotiated reductions in Russian nuclear 
forces. Thus, section 3 puts the Congress on record as continuing to 
support negotiated reductions in strategic nuclear arms, reaffirming my 
Administration's position that our missile defense policy must take 
into account our arms control and nuclear nonproliferation objectives.
      Next year, we will, for the first time, determine whether to 
deploy a limited National Missile Defense, when we review the results 
of flight tests and other developmental efforts, consider cost 
estimates, and evaluate the threat. Any NMD system we deploy must be 
operationally effective, cost-effective, and enhance our security. In 
making our determination, we will also review progress in achieving our 
arms control objectives, including negotiating any amendments to the 
ABM treaty that may be required to accommodate a possible NMD 
deployment.
                                 ______
                                 

Statement of Senator Thad Cochran on the Statement of the President of 
             the United States on Signing Public Law 106-38

          NATIONAL MISSILE DEFENSE ACT (Senate--July 26, 1999)

    Mr. COCHRAN. Mr. President, this morning I noticed in the 
Washington Times newspaper that President Clinton has signed the bill 
we authored here in the Senate, the National Missile Defense Act. This 
is very important legislation which the Senate passed after a lot of 
debate. The House and the Senate then reconciled differences between 
the House-passed measure and the Senate bill and sent the bill to the 
President.
    The President made a statement in connection with his signing the 
bill which raises some questions that I thought should be addressed by 
a comment this morning. After talking about the fact that he is signing 
the bill to address the growing danger that rogue nations may develop 
and field long-range missiles capable of delivering weapons of mass 
destruction against the United States and our allies, he then has this 
to say in his message. He is referring to the fact that authorization 
and appropriations measures will be a part of the process in terms of 
when and how and to what extent the funding is available for national 
missile defense.

        This interpretation, which is confirmed by the legislative 
        record taken as a whole, is also required to avoid a possible 
        impairment of my constitutional authorities.

    The President is suggesting that the bill doesn't mean what it 
says. I think that has to be brought to the attention of the Senate. 
The bill is very clear. It provides that it is the policy of the United 
States, upon enactment of this law, to deploy a national missile 
defense system as soon as technologically possible. That is 
unequivocal. It does not say ``but if.'' It is a change in policy of 
our Government. It has passed both Houses by a large majority, and now 
the President has signed the statute.
    It seems to me the President is trying to reinterpret the bill to 
justify changing his position on this issue. He signed the bill; he 
didn't veto it. This is not a veto message. He could have vetoed the 
bill, if he disagreed with the terms, and given Congress an opportunity 
to review that veto message and override the veto or sustain it, as the 
Congress' will dictates.
    I point this out to suggest that it is clear we have changed our 
policy, irrespective of the President's qualms about the new policy, 
and we now are committed as a nation to deploy a national missile 
defense system. We will do so in the orderly course of authorization 
and appropriation bills that we pass, as required. We have an annual 
appropriations bill funding all of the activities of the Department of 
Defense. But it is clear that one of those activities will be the 
continued research, development, and deployment of a national missile 
defense system.
    I think it is very timely to point this out because the Prime 
Minister of Russia is coming to the United States. There will be talks 
this week with the President.
    I am hopeful, and I urge the President to be honest with the 
Russian leadership about the need to modify the Anti-Ballistic Missile 
Treaty because the first part of that treaty says that neither 
signatory will deploy a missile defense system to protect the territory 
of its nation. But we have just changed the law of the United States to 
say that is our intention. We are committed to deploying a missile 
defense system that will protect the territory of the United States.
    So, insofar as that is inconsistent with the Anti-Ballistic Missile 
Treaty, the treaty needs to be changed, and our President should say 
that to the Prime Minister of Russia unequivocally--not we ``may'' 
change our mind when it comes time to authorize a deployment or to fund 
a deployment.
    The decision has been made to deploy a system, and when technology 
permits us to deploy an effective missile defense system under the 
terms of this act, we are going to do it irrespective of the provisions 
of that treaty. So we must change the treaty. And we want to assure the 
Russians that we are not targeting them. We are not trying to create a 
new era of tension or competition or to make this a more dangerous 
relationship--just the opposite; we want to be aboveboard, candid, and 
honest with the Russians.
                                 ______
                                 

                             Report of the

 COMMISSION TO ASSESS THE BALLISTIC MISSILE THREAT TO THE UNITED STATES

                           EXECUTIVE SUMMARY

               Pursuant to Public Law 201--104th Congress

                             July 15, 1998

                 Commission to Assess the Ballistic Missile
                               Threat to the United States,
                                     Washington, DC, July 15, 1998.
The Honorable Newt Gingrich,
Speaker of the U.S. House of Representatives,
Washington, DC.

    Dear Mr. Speaker: In accordance with section 1323 of the National 
Defense Authorization Act for Fiscal Year 1997 (P.L. 104-201), we 
hereby submit the report of the Commission to Assess the Ballistic 
Missile Threat to the United States.
    The Commission was established to ``assess the nature and magnitude 
of the existing and emerging ballistic missile threat to the United 
States'' and to ``submit to the Congress a report on its findings and 
conclusions.''
    The Commission's report is unanimous.
    It has been an honor to serve.

            Respectfully submitted,
                    Donald H. Rumsfeld, Chairman
                    Barry M. Blechman
                    G. Lee Butler
                    Richard L. Garwin
                    William R. Graham
                    William Schneider, Jr.
                    Larry D. Welch
                    Paul D. Wolfowitz
                    R. James Woolsey

[Copies to:]

The Honorable Trent Lott,
Majority Leader,
U.S. Senate,
Washington, DC.

The Honorable Tom Daschle,
Minority Leader,
U.S. Senate,
Washington, DC.

The Honorable Richard A. Gephardt,
Minority Leader,
U.S. House of Representatives,
Washington, DC.

    Enclosure.

Members of The Commission To Assess the Ballistic Missile Threat to the 
                             United States

                         were nominated by the

 Speaker of the U.S. House of Representatives, the Majority Leader of 
  the U.S. Senate and the Minority Leaders of the U.S. Senate and the 
                     U.S. House of Representatives

               The Honorable Donald H. Rumsfeld, Chairman

                         Dr. Barry M. Blechman

               General Lee Butler, U.S. Air Force (Ret.)

                         Dr. Richard L. Garwin

                         Dr. William R. Graham

                       Dr. William Schneider, Jr.

             General Larry D. Welch, U.S. Air Force (Ret.)

                         Dr. Paul D. Wolfowitz

                     The Honorable R. James Woolsey

                          and appointed by the

                    Director of Central Intelligence

                      I. Charter and Organization

                 a. statutory charter of the commission
    The Commission To Assess the Ballistic Missile Threat to the United 
States was established pursuant to Public Law 104-201, the National 
Defense Authorization Act for Fiscal Year 1997, Section 1321.
    The mandate of the Commission was as follows:

          ``The Commission shall assess the nature and magnitude of the 
        existing and emerging ballistic missile threat to the United 
        States. In carrying out its duties, the Commission should 
        receive the full and timely cooperation of the Secretary of 
        Defense, the Director of Central Intelligence and any other 
        United States Government official responsible for providing the 
        Commission with analyses, briefings and other information 
        necessary for the fulfillment of its responsibilities. The 
        Commission shall, not later than six months after the date of 
        its first meeting, submit to the Congress a report on its 
        findings and conclusions.''

    The Commission examined the ballistic missile threat posed to the 
50 states. Our assessment included threats posed by ballistic missiles:

   Deployed on the territory of a potentially hostile state.
   Launched from a surface vessel or submarine operating off 
        the coasts of the U.S. or from an aircraft.
   Deployed by a potentially hostile nation on the territory of 
        a third party to reduce the range required of its ballistic 
        missiles to strike the United States.

    The Commission examined the potential of both existing and emerging 
powers to arm ballistic missiles with weapons of mass destruction. The 
examination included the domestic design, development and production of 
nuclear material and nuclear weapons as well as the potential for 
states to acquire--through clandestine or covert sale, transfer or 
theft--either technology; material or weapons. The Commission examined 
biological and chemical weapons programs of the ballistic missile 
powers, as well as the potential means for delivering such agents by 
ballistic missiles.
    The Commission reviewed U.S. collection and analysis capabilities 
to gain an appreciation for the capability of the U.S. Intelligence 
Community, today and into the future, to warn of the ballistic missile 
threat.
    The Commission did not examine in detail the threat posed to U.S. 
territories or possessions or to U.S. forward-deployed forces, allies 
and friends. Nevertheless, a short discussion of the threat to U.S. 
forward deployed forces, allies and friends is presented. The 
Commission did not assess the cruise missile threat. A detailed 
examination would have taken it beyond its charter. However, the 
Commission is of the view that cruise missiles have a number of 
characteristics which could be seen as increasingly valuable in 
fulfilling the aspirations of emerging ballistic missile states. The 
Commission did not address in detail the impact of ballistic missile 
threats on U.S. military strategy and doctrine, but noted the 
difficulty the U.S had in dealing with Iraqi missiles during the 
Persian Gulf War. A brief discussion is presented of the possible 
impact of the Year 2000 (Y2K) problem on the ballistic missile threat. 
A brief discussion is also presented of the relationship of ballistic 
missile threats to the ongoing revolution in military affairs.
    The Commission was not asked to address the policy issues on which 
its assessment would bear. Responses to the threat as assessed by the 
Commission are matters of considerable public interest. Debate and 
agreement on the appropriate responses to the ballistic missile threat 
are needed. The Commission hopes that the following assessment will be 
helpful in that regard.
                     b. organization of the report
    This is an unclassified Executive Summary of the classified Report 
of the Commission To Assess the Ballistic Missile Threat to the United 
States, which runs to more than 300 pages, including text and graphics. 
The full Report is accompanied by two classified appendices and one 
unclassified appendix (the table of contents of Appendix III is listed 
in Attachment 2).
    The full Report includes discussions of a number of additional 
states, such as Libya and Syria, which are not included in this 
Executive Summary. The full Report includes as well a discussion of the 
full range of supplier states, particularly Western powers, including 
the United States.

                         II. Executive Summary

                  a. conclusions of the commissioners
    The nine Commissioners are unanimous in concluding that:

   Concerted efforts by a number of overtly or potentially 
        hostile nations to acquire ballistic missiles with biological 
        or nuclear payloads pose a growing threat to the United States, 
        its deployed forces and its friends and allies. These newer, 
        developing threats in North Korea, Iran and Iraq are in 
        addition to those still posed by the existing ballistic missile 
        arsenals of Russia and China, nations with which the United 
        States is not now in conflict but which remain in uncertain 
        transitions. The newer ballistic missile-equipped nations' 
        capabilities will not match those of U.S. systems for accuracy 
        or reliability. However, they would be able to inflict major 
        destruction on the U.S. within about five years of a decision 
        to acquire such a capability (10 years in the case of Iraq). 
        During several of those years, the U.S. might not be aware that 
        such a decision had been made.
   The threat to the U.S. posed by these emerging capabilities 
        is broader, more mature and evolving more rapidly than has been 
        reported in estimates and reports by the Intelligence 
        Community.
   The Intelligence Community's ability to provide timely and 
        accurate estimates of ballistic missile threats to the U.S. is 
        eroding. This erosion has roots both within and beyond the 
        intelligence process itself. The Community's capabilities in 
        this area need to be strengthened in terms of both resources 
        and methodology.
   The warning times the U.S. can expect of new, threatening 
        ballistic missile deployments are being reduced. Under some 
        plausible scenarios--including re-basing or transfer of 
        operational missiles, sea- and air-launch options, shortened 
        development programs that might include testing in a third 
        country, or some combination of these--the U.S. might well have 
        little or no warning before operational deployment.

    Therefore, we unanimously recommend that U.S. analyses, practices 
and policies that depend on expectations of extended warning of 
deployment be reviewed and, as appropriate, revised to reflect the 
reality of an environment in which there may be little or no warning.
                   b. the commission and its methods
    The Commissioners brought to their task the perspectives of former 
senior policymakers from outside the Intelligence Community who have 
decades of experience and a variety of views as users of the 
Intelligence Community's products. We shared an informed understanding 
of intelligence processes. In making our assessment, we took into 
account not only the hard data available, but also the often 
significant gaps in that data. We had access to both data and experts 
drawn from the full array of departments and agencies as well as from 
sources throughout the Intelligence Community. We also drew on experts 
from outside that Community and on studies sponsored by the Commission. 
Our aim was to ensure that we were exposed to a wide range of opinion 
and to the greatest possible depth and breadth of analysis.
    We began this study with different views about how to respond to 
ballistic missile threats, and we continue to have differences. 
Nevertheless, as a result of our intensive study over the last six 
months we are unanimous in our assessment of the threat, an assessment 
which differs from published intelligence estimates.
    This divergence between the Commission's findings and authoritative 
estimates by the Intelligence Community stems primarily from our use of 
a somewhat more comprehensive methodology in assessing ballistic 
missile development and deployment programs. We believe that our 
approach takes more fully into account three crucial factors now 
shaping new ballistic missile threats to the United States:

   Newer ballistic missile and weapons of mass destruction 
        (WMD) development programs no longer follow the patterns 
        initially set by the U.S. and the Soviet Union. These programs 
        require neither high standards of missile accuracy, reliability 
        and safety nor large numbers of missiles and therefore can move 
        ahead more rapidly.
   A nation that wants to develop ballistic missiles and 
        weapons of mass destruction can now obtain extensive technical 
        assistance from outside sources. Foreign assistance is not a 
        wild card. It is a fact.
   Nations are increasingly able to conceal important elements 
        of their ballistic missile and associated WMD programs and are 
        highly motivated to do so.

          c. new threats in a transformed security environment
    The Commission did not assess nuclear, biological and chemical 
weapons programs on a global basis. We considered those countries about 
which we felt particular reason to be concerned and examined their 
capabilities to acquire ballistic missiles armed with weapons of mass 
destruction.
    All of the nations whose programs we examined that are developing 
long-range ballistic missiles have the option to arm these, as well as 
their shorter range systems, with biological or chemical weapons. These 
weapons can take the form of bomblets as well as a single, large 
warhead.
    The knowledge needed to design and build a nuclear weapon is now 
widespread. The emerging ballistic missile powers have access to, or 
are pursuing the acquisition of, the needed fissile material both 
through domestic efforts and foreign channels.
    As our work went forward, it became increasingly clear to us that 
nations about which the U.S. has reason to be concerned are exploiting 
a dramatically transformed international security environment. That 
environment provides an ever-widening access to technology, information 
and expertise that can be and is used to speed both the development and 
deployment of ballistic missiles and weapons of mass destruction. It 
can also be used to develop denial and deception techniques that seek 
to impede U.S. intelligence gathering about the development and 
deployment programs of those nations.
1. Geopolitical Change and Role for Ballistic Missiles
    A number of countries with regional ambitions do not welcome the 
U.S. role as a stabilizing power in their regions and have not accepted 
it passively. Because of their ambitions, they want to place restraints 
on the U.S. capability to project power or influence into their 
regions. They see the acquisition of missile and WMD technology as a 
way of doing so.
    Since the end of the Cold War, the geopolitical environment and the 
roles of ballistic missiles and weapons of mass destruction have both 
evolved. Ballistic missiles provide a cost-effective delivery system 
that can be used for both conventional and non-conventional weapons. 
For those seeking to thwart the projection of U.S. power, the 
capability to combine ballistic missiles with weapons of mass 
destruction provides a strategic counter to U.S. conventional and 
information-based military superiority. With such weapons, these 
nations can pose a serious threat to the United States, to its forward-
based forces and their staging areas and to U.S. friends and allies.
    Whether short- or long-range, a successfully launched ballistic 
missile has a high probability of delivering its payload to its target 
compared to other means of delivery. Emerging powers therefore see 
ballistic missiles as highly effective deterrent weapons and as an 
effective means of coercing or intimidating adversaries, including the 
United States.
2. Russia
    With regard to Russia, the principal cloud over the future is 
lingering political uncertainty. Despite enormous changes since the 
break-up of the Soviet Union, Russia is in an uncertain, in some ways 
precarious, transition. It may succeed in establishing a stable 
democracy allied with the West in maintaining peace and extending 
freedom. Or it may not. Or it might be torn by internal struggles for 
an extended period. In its present situation, accurate U.S. 
intelligence estimates are difficult to make.
    Russia continues to pose a ballistic missile threat to the United 
States, although of a different character than in the past. The number 
of missiles in its inventory is likely to decline further compared with 
Cold War levels in that large numbers of Soviet strategic missiles 
deployed in the 1970s and 1980s are scheduled to be retired. Still, 
Russian ballistic missile forces continue to be modernized and 
improved, although the pace of modernization has been slowed from 
planned schedules by economic constraints. The Russian ballistic 
missile early warning system and nuclear command and control (C2) 
system have also been affected by aging and delays in planned 
modernization. In the context of a crisis growing out of civil strife, 
present early warning and C2 weaknesses could pose a risk of 
unauthorized or inadvertent launch of missiles against the United 
States.\1\
---------------------------------------------------------------------------
    \1\ An unauthorized launch is one that has not received the 
required authorizations from senior political leaders and that might be 
conducted by elements within the General Staff or subordinate 
commanders. An inadvertent launch is one resulting from a mistaken 
assessment of sensor data, including from ballistic missile early 
warning systems, or a misinterpretation of the strategic situation or 
some combination of the two, especially in times of crisis generated 
either by domestic or international events.
---------------------------------------------------------------------------
    With the Cold War ended, the likelihood of a deliberate missile 
attack on the U.S. from Russia has been greatly lessened but not 
entirely eliminated. However, Russia's leaders issued a new national 
security policy in 1993 that places greater reliance on nuclear 
deterrence, very likely in response to Russia's economic difficulties 
and decline in its conventional military capabilities. At the same 
time, the risk of an accident or of a loss of control over Russian 
ballistic missile forces--a risk which now appears small--could 
increase sharply and with little warning if the political situation in 
Russia were to deteriorate.
    Also, quite apart from these risks, Russia poses a threat to the 
U.S. as a major exporter of enabling technologies, including ballistic 
missile technologies, to countries hostile to the United States. In 
particular, Russian assistance has greatly accelerated Iran's ballistic 
missile program.
3. China
    As in the case of Russia, China's future is clouded by a range of 
uncertainties. China, too, is going through a transition, but one which 
has been going on for 20 years. The improvement in Sino-U.S. relations, 
interrupted in 1989, has resumed. Although the U.S. and China are 
developing a more cooperative relationship, significant potential 
conflicts remain, and China is less constrained today by fear of Russia 
than it once was by fear of the Soviet Union. Taiwan is an obvious 
potential flashpoint. Other flashpoints could arise as China pursues 
its drive for greater influence in Asia and the Western Pacific. Even 
now China has conflicts with several of its neighbors, some of which 
could involve the U.S. in a confrontation.
    China is modernizing its long-range missiles and nuclear weapons in 
ways that will make it a more threatening power in the event of a 
crisis. China's 1995-96 missile firings in the Taiwan Strait, aimed at 
intimidating Taiwan in the lead-up to its presidential election, 
provoked a sharp confrontation with the United States. For example, a 
pointed question was posed by Lt. Gen. Xiong Guang Kai, a frequent 
spokesman for Chinese policy, about U.S. willingness to trade Los 
Angeles for Taipei. This comment seemed designed to link China's 
ballistic missile capabilities with its regional priorities.
    China also poses a threat to the U.S. as a significant proliferator 
of ballistic missiles, weapons of mass destruction and enabling 
technologies. It has carried out extensive transfers to Iran's solid-
fueled ballistic missile program. It has supplied Pakistan with a 
design for a nuclear weapon and additional nuclear weapons assistance. 
It has even transferred complete ballistic missile systems to Saudi 
Arabia (the 3,100-km-range CSS-2) and Pakistan (the 350-km-range M-11).
    The behavior thus far of Russia and China makes it appear unlikely, 
albeit for different reasons--strategic, political, economic or some 
combination of all three--that either government will soon effectively 
reduce its country's sizable transfer of critical technologies, experts 
or expertise to the emerging ballistic missile powers.
4. Countries With Scud-Based Missile Infrastructures
    The basis of most missile developments by emerging ballistic 
missile powers is the Soviet Scud missile and its derivatives. The Scud 
is derived from the World War II-era German V-2 rocket. With the 
external help now readily available, a nation with a well-developed, 
Scud-based ballistic missile infrastructure would be able to achieve 
first flight of a long-range missile, up to and including 
intercontinental ballistic missile (ICBM) range,\2\ within about five 
years of deciding to do so. During several of those years the U.S. 
might not be aware that such a decision had been made. Early production 
models would probably be limited in number. They would be unlikely to 
meet U.S. standards of safety, accuracy and reliability. But the 
purposes of these nations would not require such standards. A larger 
force armed with scores of missiles and warheads and meeting higher 
operational standards would take somewhat longer to test, produce and 
deploy. But meanwhile, even a few of the simpler missiles could be 
highly effective for the purposes of those countries.
---------------------------------------------------------------------------
    \2\ An ICBM has a range greater than 5,500 km.
---------------------------------------------------------------------------
    The extraordinary level of resources North Korea and Iran are now 
devoting to developing their own ballistic missile capabilities poses a 
substantial and immediate danger to the U.S., its vital interests and 
its allies. While these nations' missile programs may presently be 
aimed primarily at regional adversaries, they inevitably and 
inescapably engage the vital interests of the U.S. as well. Their 
targeted adversaries include key U.S. friends and allies. U.S. deployed 
forces are already at risk from these nations' growing arsenals. Each 
of these nations places a high priority on threatening U.S. territory, 
and each is even now pursuing advanced ballistic missile capabilities 
to pose a direct threat to U.S. territory.
            a. North Korea
    There is evidence that North Korea is working hard on the Taepo 
Dong 2 (TD-2) ballistic missile. The status of the system's development 
cannot be determined precisely. Nevertheless, the ballistic missile 
test infrastructure in North Korea is well developed. Once the system 
is assessed to be ready, a test flight could be conducted within six 
months of a decision to do so. If North Korea judged the test to be a 
success, the TD-2 could be deployed rapidly. It is unlikely the U.S. 
would know of such a decision much before the missile was launched. 
This missile could reach major cities and military bases in Alaska and 
the smaller, westernmost islands in the Hawaiian chain. Light-weight 
variations of the TD-2 could fly as far as 10,000 km, placing at risk 
western U.S. territory in an arc extending northwest from Phoenix, 
Arizona, to Madison, Wisconsin. These variants of the TD-2 would 
require additional time to develop and would likely require an 
additional flight test.
    North Korea has developed and deployed the No Dong, a medium-range 
ballistic missile \3\ (MRBM) using a scaled-up Scud engine, which is 
capable of flying 1,300 km. With this missile, North Korea can threaten 
Japan, South Korea and U.S. bases in the vicinity of North Korea. North 
Korea has reportedly tested the No Dong only once, in 1993. The 
Commission judges that the No Dong was operationally deployed long 
before the U.S. Government recognized that fact. There is ample 
evidence that North Korea has created a sizable missile production 
infrastructure, and therefore it is highly likely that considerable 
numbers of No Dongs have been produced.
---------------------------------------------------------------------------
    \3\ An MRBM has a range of 1,000 to 3,000 km.
---------------------------------------------------------------------------
    In light of the considerable difficulties the Intelligence 
Community encountered in assessing the pace and scope of the No Dong 
missile program, the U.S. may have very little warning prior to the 
deployment of the Taepo Dong 2.
    North Korea maintains an active WMD program, including a nuclear 
weapon program. It is known that North Korea diverted material in the 
late 1980s for at least one or possibly two weapons. North Korea's 
ongoing nuclear program activity raises the possibility that it could 
produce additional nuclear weapons. North Korea also possesses 
biological weapons production and dispensing technology, including the 
capability to deploy chemical or biological warheads on missiles.
    North Korea also poses a major threat to American interests, and 
potentially to the United States itself, because it is a major 
proliferator of the ballistic missile capabilities it possesses--
missiles, technology, technicians, transporter-erector-launchers (TELs) 
and underground facility expertise--to other countries of missile 
proliferation concern. These countries include Iran, Pakistan and 
others.
            b. Iran
    Iran is placing extraordinary emphasis on its ballistic missile and 
WMD development programs. The ballistic missile infrastructure in Iran 
is now more sophisticated than that of North Korea, and has benefited 
from broad, essential, long-term assistance from Russia and important 
assistance from China as well. Iran is making very rapid progress in 
developing the Shahab 3 MRBM, which like the North Korean No Dong has a 
range of 1,300 km. This missile may be flight tested at any time and 
deployed soon thereafter.
    The Commission judges that Iran now has the technical capability 
and resources to demonstrate an ICBM-range ballistic missile, similar 
to the TD-2 (based on scaled-up Scud technology), within five years of 
a decision to proceed--whether that decision has already been made or 
is yet to be made.
    In addition to this Scud-based long-range ballistic missile 
program, Iran has acquired and is seeking major, advanced missile 
components that can be combined to produce ballistic missiles with 
sufficient range to strike the United States. For example, Iran is 
reported to have acquired engines or engine designs for the RD-214 
engine, which powered the Soviet SS-4 MRBM and served as the first 
stage of the SL-7 space-launch vehicle. Iran is known to have an 
interest in even more advanced engines. A 10,000 km-range Iranian 
missile could hold the U.S. at risk in an arc extending northeast of a 
line from Philadelphia, Pennsylvania, to St. Paul, Minnesota.
    Iran has also developed a solid-fueled rocket infrastructure; it 
already produces short-range solid-fueled rockets. It is seeking long-
range missile technology from outside sources, purportedly for a space-
launch vehicle. Both contribute directly to Iran's ballistic missile 
technology base. Iran is known to rely heavily on imports of missile 
technology from foreign sources, particularly Russia and North Korea. 
These imports have allowed Iran's missile programs to proceed swiftly, 
and they can be incorporated into Iran's domestic infrastructure as 
well.
    Iran is developing weapons of mass destruction. It has a nuclear 
energy and weapons program which aims to design, develop and, as soon 
as possible, produce nuclear weapons. The Commission judges that the 
only issue as to whether or not Iran may soon have or already has a 
nuclear weapon is the amount of fissile material available to it. 
Because of significant gaps in our knowledge, the U.S. is unlikely to 
know whether Iran possesses nuclear weapons until after the fact. While 
Iran's civil nuclear program is currently under International Atomic 
Energy Agency (IAEA) safeguards, it could be used as a source of 
sufficient fissile material to construct a small number of weapons 
within the next 10 years if Iran were willing to violate safeguards. If 
Iran were to accumulate enough fissile material from foreign sources, 
it might be able to develop a nuclear weapon in only one to three 
years. Iran also has an active chemical weapon development and 
production program and is conducting research into biological weapons.
            c. Iraq
    Iraq has maintained the skills and industrial capabilities needed 
to reconstitute its long-range ballistic missile program. Its plant and 
equipment are less developed than those of North Korea or Iran as a 
result of actions forced by United Nations (U.N.) Resolutions and 
monitoring. However, Iraq has actively continued work on short-range 
(under 150 km) liquid- and solid-fueled missiles, programs allowed by 
the U.N. Resolutions. Once U.N.-imposed controls are lifted, Iraq could 
mount a determined effort to acquire needed plant and equipment, 
whether directly or indirectly. Such an effort would allow Iraq to pose 
an ICBM threat to the United States within 10 years. Iraq could develop 
a shorter range, covert, ship-launched missile threat that could 
threaten the United States in a very short time.
    Iraq had a large, intense ballistic missile development and 
production program prior to the Gulf War. The Iraqis produced Scuds and 
then modified Scud missiles to produce the 600-km-range Al Hussein and 
900-km-range Al Abbas missiles. The expertise, as well as some of the 
equipment and materials from this program remain in Iraq and provide a 
strong foundation for a revived ballistic missile program.
    Prior to the invasion of Kuwait in 1990, Iraq could have had 
nuclear weapons in the 1993-1995 time frame, although it still had 
technical hurdles to overcome. After the invasion of Kuwait, Iraq began 
a crash program to produce a nuclear device in six to nine months based 
on highly enriched uranium removed from the safeguarded reactor at 
Tuwaitha. Iraq has the capability to reconstitute its nuclear weapon 
program; the speed at which it can do so depends on the availability of 
fissile material. It would take several years to build the required 
production facilities from scratch. It is possible that Iraq has hidden 
some material from U.N. Special Commission (UNSCOM) inspection or that 
it could acquire fissile material abroad (from another ``rogue'' state, 
for example). Iraq also had large chemical and biological weapons 
programs prior to the war and produced chemical and biological warheads 
for its missiles. Knowledge, personnel and equipment related to WMD 
remain in Iraq so that it could reconstitute these programs rapidly 
following the end of sanctions.
5. India
    India is developing a number of ballistic missiles from short-range 
to those with ICBM-class capabilities, along with a submarine-launched 
ballistic missile (SLBM) and a short-range, surface ship-launched 
system. India has the infrastructure to develop and produce these 
missiles. It is aggressively seeking technology from other states, 
particularly Russia. While it develops its long-range ballistic 
missiles, India's space-launch vehicles provide an option for an 
interim ICBM capability. India has detonated several nuclear devices, 
and it is clear that it is developing warheads for its missile systems. 
India has biological and chemical weapons programs. Since the Pakistani 
nuclear tests, India has announced its intention to increase its 
spending on missiles and nuclear weapons.
    India's program to develop ballistic missiles began in 1983 and 
grew out of its space-launch program, which was based on Scout rocket 
technology acquired from the United States. India currently has 
developed and deployed the Prithvi short-range ballistic missile \4\ 
(SRBM), and is developing longer range, liquid- and solid-fueled 
missiles. They include the Prithui II SRBM, the Agni, Agni-Plus and 
Agni-B intermediate-range ballistic missiles \5\ (IRBMs), a sea-
launched ballistic missile and an SLBM, the Sagarika.
---------------------------------------------------------------------------
    \4\ An SRBM has a range of less than 1,000 km.
    \5\ An IRBM has a range of 3,000 to 5,500 km.
---------------------------------------------------------------------------
    India detonated a nuclear device in 1974, conducted a test series 
in May 1998, and it is clear that it is developing warheads for its 
missile systems. Indian leaders recently declared that India has 
developed nuclear weapons for deployment on the Prithui SRBM and the 
Agni Plus MRBM.
    India his acquired and continues to seek Russian, U.S. and Western 
European technology for its missile programs. Technology and expertise 
acquired from other states, particularly from Russia, are helping India 
to accelerate the development and increase the sophistication of its 
missile systems. For example, Russian assistance is critical to the 
development of the Indian SLBM and its related submarine. But India is 
rapidly enhancing its own missile science and technology base as well. 
Many Indian nationals are educated and work in the U.S., Europe and 
other advanced nations; some of the knowledge thereby acquired returns 
to the Indian missile program. While India continues to benefit from 
foreign technology and expertise, its programs and industrial base are 
now sufficiently advanced that supplier control regimes can affect only 
the rate of acceleration in India's programs. India is in a position to 
supply material and technical assistance to others.
6. Pakistan
    Pakistan's ballistic missile infrastructure is now more advanced 
than that of North Korea. It will support development of a missile of 
2,500-km range, which we believe Pakistan will seek in order to put all 
of India within range of Pakistani missiles. The development of a 
2,500-km missile will give Pakistan the technical base for developing a 
much longer range missile system. Through foreign acquisition, and 
beginning without an extensive domestic science and technology base, 
Pakistan has acquired these missile capabilities quite rapidly. China 
and North Korea are Pakistan's major sources of ballistic missiles, 
production facilities and technology.
    Pakistan currently possesses nuclear-capable M-11 SRBMs acquired 
from China, and it may produce its own missile, the Tarmuk, based on 
the M-11. In 1998, Pakistan tested and deployed the 1,300-km-Ghauri 
MRBM, a version of the North Korean No Dong, and the Commission 
believes Pakistan has acquired production facilities for this missile 
as well.
    Pakistan possesses nuclear weapons that employ highly-enriched 
uranium and conducted its first nuclear weapon test series in May 1998. 
A new Pakistani nuclear reactor has been completed that could be used 
for the production of plutonium. In addition to its nuclear weapons, 
Pakistan has biological and chemical weapons programs. Chinese 
assistance has been crucial to Pakistan's nuclear weapons program.
    India and Pakistan are not hostile to the United States. The 
prospect of U.S. military confrontation with either seems at present to 
be slight. However, beyond the possibility of nuclear war on the 
subcontinent, their aggressive, competitive development of ballistic 
missiles and weapons of mass destruction poses three concerns in 
particular. First, it enables them to supply relevant technologies to 
other nations. Second, India and Pakistan may seek additional technical 
assistance through cooperation with their current major suppliers--
India from Russia, Pakistan from North Korea and China--because of the 
threats they perceive from one another and because of India's anxieties 
about China, combined with their mounting international isolation. 
Third, their growing missile and WMD capabilities have direct effects 
on U.S. policies, both regional and global, and could significantly 
affect U.S. capability to play a stabilizing role in Asia.
                 d. a new non-proliferation environment
    Since the end of the Cold War a number of developments have made 
ballistic missile and WMD technologies increasingly available. They 
include:

   A number of nations have chosen not to join non-
        proliferation agreements.
   Some participants in those agreements have cheated.
   As global trade has steadily expanded, access has increased 
        to the information, technology and technicians needed for 
        missile and WMD development.
   Access to technologies used in early generations of U.S. and 
        Soviet missiles has eased. However rudimentary compared to 
        present U.S. standards, these technologies serve the needs of 
        emerging ballistic missile powers.
   Among those countries of concern to the U.S., commerce in 
        ballistic missile and WMD technology and hardware has been 
        growing, which may make proliferation self-sustaining among 
        them and facilitate their ability to proliferate technology and 
        hardware to others.

    Some countries which could have readily acquired nuclear weapons 
and ballistic missiles--such as Germany, Japan and South Korea--have 
been successfully encouraged not to do so by U.S. security guarantees 
and by non-proliferation agreements. Even though they lack such 
security guarantees, other countries have also joined nonproliferation 
agreements and abandoned development programs and weapons systems. Some 
examples are Argentina, Brazil, South Africa and the former Soviet 
republics of Belarus, Kazakhstan and Ukraine.
1. Increased Competence of and Trade Among Emerging Ballistic Missile 
        Powers
    Conversely, there are other countries--some of which are themselves 
parties to various non-proliferation agreements and treaties--that 
either have acquired ballistic missile or WMD capabilities or are 
working hard to do so. North Korea, Iran and Iraq, as well as India and 
Pakistan, are at the forefront of this group. They now have increased 
incentives to cooperate with one another. They have extensive access to 
technology, information and expertise from developed countries such as 
Russia and China. They also have access through commercial and other 
channels in the West, including the United States. Through this trade 
and their own indigenous efforts, these second-tier powers are on the 
verge of being able to provide to one another, if they have not already 
done so, the capabilities needed to develop long-range ballistic 
missiles.
2. U.S. as a Contributor to Proliferation
    The U.S. is the world's leading developer and user of advanced 
technology. Once it is transferred by the U.S. or by another developed 
country; there is no way to ensure that the transferred technology will 
not be used for hostile purposes. The U.S. tries to limit technology 
transfers to hostile powers, but history teaches that such transfers 
cannot be stopped for long periods. They can only be slowed and made 
more costly, and even that requires the cooperation of other developed 
nations. The acquisition and use of transferred technologies in 
ballistic missile and WMD programs has been facilitated by foreign 
student training in the U.S., by wide dissemination of technical 
information, by the illegal acquisition of U.S. designs and equipment 
and by the relaxation of U.S. export control policies. As a result, the 
U.S. has been and is today a major, albeit unintentional, contributor 
to the proliferation of ballistic missiles and associated weapons of 
mass destruction.
3. Motives of Countries of Concern
    Recent ballistic missile and nuclear tests in South Asia should not 
be viewed as merely a sharp but temporary setback in the expanding 
reach of non-proliferation regimes. While policymakers may try to 
reverse or at least contain the trends of which these tests are a part, 
the missile and WMD programs of these nations are clearly the results 
of fundamental political calculations of their vital interests. Those 
nations willing and able to supply dangerous technologies and systems 
to one another, including Russia, China and their quasi-governmental 
commercial entities, may be motivated by commercial, foreign policy or 
national security interests or by a combination thereof. As noted, such 
countries are increasingly cooperating with one another, perhaps in 
some instances because they have reciprocal needs for what one has and 
the other lacks. The transfer of complete missile systems, such as 
China's transfer to Saudi Arabia, will continue to be available. Short 
of radical political change, there is every reason to assume that the 
nations engaged in these missile and WMD development activities will 
continue their programs as matters of high priority.
4. Readier Market Access to Technology
    In today's increasingly market-driven, global economy, nations so 
motivated have faster, cheaper and more efficient access to modern 
technology. Commercial exchanges and technology transfers have 
multiplied the pathways to those technologies needed for ballistic 
missiles and weapons of mass destruction. These pathways reduce 
development times and costs, lowering both technical and budget 
obstacles to missile development and deployment.
    Expanding world trade and the explosion in information technology 
have accelerated the global diffusion of scientific, technical and 
industrial information. The channels--both public and private, legal 
and illegal--through which technology; components and individual 
technicians can be moved among nations have increased exponentially.
5. Availability of Classified Information and Export-Controlled 
        Technology
    Trends in the commercial sector of a market-driven, global economy 
have been accompanied, and in many ways accelerated, by an increased 
availability of classified information as a result of:

   Lax enforcement of export controls.
   Relaxation of U.S. and Western export controls.
   Growth in dual-use technologies.
   Economic incentives to sell ballistic missile components and 
        systems.
   Extensive declassification of materials related to ballistic 
        missiles and weapons of mass destruction.
   Continued, intense espionage facilitated by security 
        measures increasingly inadequate for the new environment.
   Extensive disclosure of classified information, including 
        information compromising intelligence sources and methods. 
        Damaging information appears almost daily in the national and 
        international media and on the Internet.

             e. alternative ballistic missile launch modes
    In evaluating present threats, it is misleading to use old patterns 
of development as guides. The history of U.S. and Soviet missile and 
WMD development has become irrelevant. Approaches that the U.S. 
considered and specifically rejected on grounds of safety, reliability, 
accuracy and requirements for high volume production are in many cases 
well-suited to nations less concerned about safety and able to meet 
their needs with only a few, less accurate, less reliable weapons. 
Analytical approaches the Intelligence Community could realistically 
rely on in the past need to be restudied and reevaluated in light of 
this newer model.
    The Commission believes the U.S. needs to pay attention to the 
possibility that complete, long-range ballistic missile systems could 
be transferred from one nation to another, just as China transferred 
operational CSS-2s to Saudi Arabia in 1988. Such missiles could be 
equipped with weapons of mass destruction.
    One nation's use of another nation's territory also needs to be 
considered. The U.S. did this during the Cold War and the Soviet Union 
tried to do it in Cuba in the early 1960s. For example, if Iran were to 
deploy ballistic missiles in Libya, it could reduce the range required 
to threaten the U.S. as well as Europe. Given the existing patterns of 
cooperation the Commission has already seen, both testing by one 
country on the territory of another and deriving data from other-
country tests are also distinct possibilities.
    Sea launch of shorter range ballistic missiles is another 
possibility. This could enable a country to pose a direct territorial 
threat to the U.S. sooner than it could by waiting to develop an ICBM 
for launch from its own territory. Sea launching could also permit it 
to target a larger area of the U.S. than would a missile fired from its 
home territory. India is working on a sea launch capability. Air launch 
is another possible mode of delivering a shorter range missile to U.S. 
territory.
    The key importance of these approaches is that each would 
significantly shorten the warning time of deployment available to the 
United States.
                         f. erosion of warning
    Precise forecasts of the growth in ballistic missile capabilities 
over the next two decades--tests by year, production rates, weapons 
deployed by year, weapon characteristics by system type and circular 
error probable (CEP)--cannot be provided with confidence. Deception and 
denial efforts are intense and often successful, and U.S. collection 
and analysis assets are limited. Together they create a high risk of 
continued surprise.
    The question is not simply whether the U.S. will have warning of an 
emerging capability, but whether the nature and magnitude of a 
particular threat will be perceived with sufficient clarity in time to 
take appropriate action.
    Concealment, denial and deception efforts by key target countries 
are intended to delay the discovery of strategically significant 
activities until well after they had been carried out successfully. The 
fact that some of these secret activities are discovered over time is 
to the credit of the U.S. Intelligence Community. However, the fact 
that there are delays in discovery of those activities provides a sharp 
warning that a great deal of activity goes undetected.
    Both technical and human intelligence are inherently more difficult 
to collect in those countries where the U.S. has limited access, which 
include most of the ballistic missile countries of concern. The U.S. is 
not able to predict and anticipate with confidence the behavior and 
actions of emerging ballistic missile powers and their related 
political decision-making.
    Their ballistic missile programs often do not follow a single, 
known pattern or model, and they use unexpected development patterns. 
These are not models of development the U.S. follows or that 
intelligence analysts expect to see. For example, Pakistan's test 
launch in April 1998 of its Ghauri MRBM--its version of the North 
Korean No Dong--could not be predicted on the basis of any known 
pattern of technical development either for MRBMs generally or Pakistan 
in particular. Similarly, North Korea's decision to deploy the No Dong 
after what is believed to be a single successful test flight is another 
example. Based on U.S. and Russian experience, the Intelligence 
Community had expected that a regular test series would be required to 
provide the confidence needed before any country would produce and 
deploy a ballistic missile system. Yet North Korea deployed the No 
Dong.
    The Commission believes that the technical means of collection now 
employed will not meet emerging requirements, and considerable 
uncertainty persists whether planned collection and analysis systems 
will do so.
                             g. methodology
    In analyzing the ballistic missile threat, the Commission used an 
expanded methodology. We used it as a complement to the traditional 
analysis in which a country's known program status is used to establish 
estimates of its current missile capabilities. We believe this expanded 
approach provides insights into emerging threats that the prevailing 
approaches used by the Intelligence Community may not bring to the 
surface.
    To guide our assessment of the ballistic missile threat to the 
United States, we posed three questions:

   What is known about the ballistic missile threat, including 
        the domestic infrastructure of a ballistic missile power; the 
        efforts of a power to acquire foreign technology, materials and 
        expertise; and the scale, pace and progress of its programs?
   What is not known about the threat in each of those three 
        categories?
   Can a power intent on posing a ballistic missile threat to 
        any part of the United States, including the use of but not 
        limited to ICBM-range missiles, use the open market, the black 
        market and/or espionage to secure the needed technology and 
        expertise and then carry out its program in ways that will 
        minimize the interval between the time the U.S. becomes aware 
        of the threat and the fielding of that capability?
    In seeking answers to these questions, we familiarized ourselves 
with the current state of knowledge as well as the depth of analytic 
capability within the Intelligence Community related to ballistic 
missile and WMD threats. The Commission used its broad access to 
individuals, special compartmented intelligence and special access 
programs. We consulted with experts in the broader government and 
private analytic and policy communities. We reviewed the strengths, 
weaknesses and vulnerabilities of current and planned human and 
technical collection efforts and capabilities, especially in light of 
the increasingly sophisticated means and methods available to target 
countries to hide from U.S. intelligence collection. We reviewed with 
scientists, engineers and program managers from the public and private 
sectors the technical issues associated with the design, development 
and testing of ballistic missiles and the means and methods available 
to the emerging ballistic missile powers to meet the challenges 
associated with long-range ballistic missile development and testing.
    The Commission analyzed the available information in order to 
develop an understanding of the threat from three perspectives:

   We examined the known size and quality of the deployed 
        forces, the doctrine and the command and control systems that 
        govern the forces and the availability of weapons of mass 
        destruction to arm the forces. We reviewed the infrastructure 
        supporting the programs and the extent of past and present 
        foreign assistance available to those programs from Russia, 
        China and other countries, including the West.
   We examined the ways in which the programs of emerging 
        ballistic missile powers compared with one another. For 
        example, we traced the development histories of the related 
        programs of North Korea, Iran, Iraq and Pakistan and the 
        relationships among them. This comparison helped in identifying 
        the similarities between programs, the extent to which each had 
        aided one another in overcoming critical development hurdles 
        and, importantly, the pace at which a determined country can 
        progress in its program development.
   We reviewed the resources (``inputs'') available and the 
        ways in which they provide indicators of the prospects for 
        successful missile development.

    By integrating these perspectives, we were able to partially bridge 
a significant number of intelligence gaps. Emphasizing inputs makes two 
important contributions to the analysis. Inputs include domestic 
opportunity costs, the foreign technology and expertise sought and 
obtained, the urgency with which facilities are constructed both above 
and below ground and the willingness to absorb cost and time penalties 
in order to hide activities from detection by U.S. intelligence. 
Attention to inputs across all elements of a program helps develop an 
understanding of the scale and scope of a program before traditional 
output indicators, such as testing and production rates, can be 
observed and evaluated. When combined with observed outputs and the 
application of engineering judgments, the understanding of the scale 
and scope of a program that this provided helped us to measure the 
probable pace and magnitude of a program and its potential products. We 
were then able to make what we believe to be reasonably confident 
estimates of what the various programs can achieve.
    Rather than measuring how far a program had progressed from a known 
starting point, the Commission sought to measure how close a program 
might be to demonstrating the first flight of a long-range ballistic 
missile. This approach requires that analysts extrapolate a program's 
scope, scale, pace and direction beyond what the hard evidence at hand 
unequivocally supports. It is in sharp contrast to a narrow focus on 
the certain that obscures the almost-certain. The approach helps reduce 
the effects of denial and deception efforts. When strategically 
significant programs were assessed by narrowly focusing on what is 
known, the assessments lagged the actual state of the programs by two 
to eight years and in some cases completely missed significant 
programs.
    We chose to focus on what is left to be accomplished in the 
programs of potentially threatening ballistic missile powers and 
alternative paths they can follow to attain their goals. We reviewed 
program histories and current activities, including foreign assistance, 
to determine whether a ballistic missile program acquired the means to 
overcome its identified problems. We considered the multiple pathways 
available for completing its development given the combination of 
expertise and technology available to it and the circumstances in which 
it is operating. This approach accepts as a basic premise that a power 
determined to possess a long-range missile, knowing that the U.S. is 
trying to track its every action but aware of U.S. intelligence methods 
and sources, will do its best to deny information and to deceive the 
U.S. about its actual progress.
    Because of these options available to emerging ballistic missile 
powers, the Commission, unanimously recognizing that missile 
development and deployment now follows new models, strongly urges the 
use of an expanded approach to intelligence that assesses both inputs 
and outputs in other countries' ballistic missile programs. We believe 
this approach is needed in order to capture both sooner and more 
accurately the speed and magnitude of potential ballistic missile 
proliferation in the post-Cold War world and to assess, in time, the 
various threats this proliferation poses to the United States.
    The Commission's key judgments are derived from applying this 
methodology and examining the evidence in light of the individual and 
collective experience of the nine Commissioners.
                               h. summary
    Ballistic missiles armed with WMD payloads pose a strategic threat 
to the United States. This is not a distant threat. Characterizing 
foreign assistance as a wild card is both incorrect and misleading. 
Foreign assistance is pervasive, enabling and often the preferred path 
to ballistic missile and WMD capability.
    A new strategic environment now gives emerging ballistic missile 
powers the capacity through a combination of domestic development and 
foreign assistance, to acquire the means to strike the U.S. within 
about five years of a decision to acquire such a capability (10 years 
in the case of Iraq). During several of those years, the U.S. might not 
be aware that such a decision had been made. Available alternative 
means of delivery can shorten the warning time of deployment nearly to 
zero.
    The threat is exacerbated by the ability of both existing and 
emerging ballistic missile powers to hide their activities from the 
U.S. and to deceive the U.S. about the pace, scope and direction of 
their development and proliferation programs. Therefore, we unanimously 
recommend that U.S. analyses, practices and policies that depend on 
expectations of extended warning of deployment be reviewed and, as 
appropriate, revised to reflect the reality of an environment in which 
there may be little or no warning.

                             Attachment 1.

                  a. year 2000 (y2k) computer problem
    The widely-discussed Year 2000 (Y2K) problem concerns computer 
hardware with embedded clocks and software with date recognition 
functions that still designate years with only two digits and are 
programmed to interpret ``00'' as the year 1900 rather than 2000. The 
tasks of reprogramming are immense and complex, and uncertainties 
surrounding their pace and outcome plague many aspects of life and 
commerce. The Commission judges that military and intelligence 
operations are not immune to the effects of the Y2K problem.
    Not only at the millennium but for some undetermined time before 
and after it the Y2K problem can affect U.S. and Russian ballistic 
missile forces and, to a lesser extent, those of China, the United 
Kingdom (U.K.) and France. The U.S. particularly and Russia somewhat 
less so depend on computer-based and computer-aided intelligence and 
surveillance and on automated processes to assure that their ballistic 
missile forces will function under all conceivable circumstances. The 
Y2K problem can potentially upset some of those calculations by 
interfering with the capacity of the U.S. and Russia to:

   Monitor the activities of each other at the strategic level, 
        including the disposition and posture of their conventional 
        military forces.
   Provide tactical warning of military operations, 
        particularly ballistic missile operations, through collection 
        of data from space-, air- and ground-based sensors.
   Process and fuse the data received from sensors in the 
        command and control nets.
   Maintain positive control over ballistic missile forces and, 
        if automated responses to false data and warnings are 
        triggered, retain or regain control by the national military 
        and political leadership.

    Y2K problems are complex and not easy to deal with. Efforts are 
underway to isolate critical systems from the problem, but they may not 
totally eliminate vulnerabilities for two reasons:

   No system is completely isolated. Command centers may have 
        new software installed, but if the support services--electric, 
        water, gas and communications, for example--are not self-
        contained the center may fail. Even if support services are 
        self-contained, the need for the center to function via 
        computer or by computer-dependent communication systems makes 
        it vulnerable to Y2K problems up or downstream from it.
   Efforts to correct the problem provide their own attractive 
        opportunities for unfriendly agents and powers to tamper with 
        mission-critical software. Errors can be programmed which are 
        designed to appear only much later and in circumstances that 
        cannot be anticipated. The Commission is troubled by the amount 
        of Y2K software work being performed in foreign countries, 
        particularly India, for U.S. industry and for the U.S. 
        Government--including elements of the Intelligence Community.
       b. revolution in military affairs and information warfare
    The term ``Revolution in Military Affairs'' (RMA) is used to 
describe the impact of leading-edge military technologies and 
information warfare on the conduct of military operations from the 
tactical to the strategic level. Key RMA technologies include 
precision-guided munitions, stealth technology and the use of space-
based assets for command, control, communications, intelligence, 
surveillance and reconnaissance, as well as modern computational 
capabilities to integrate these functions.
    The U.S. military is adopting new weapon systems and tactical, 
operational and strategic concepts based on the elements of the RMA. 
The objective is to make U.S. forces lighter but more lethal so that 
fewer personnel with less equipment can strike over longer distances 
and with a far more powerful effect. This gives prospective adversaries 
greater incentives to find new ways of offsetting the new RMA-based 
capabilities of the U.S. and in particular to come up with new 
``asymmetric'' strategies--that is, strategies that can cripple U.S. 
ability to use its forces without the adversary having to confront 
those forces directly.
    These asymmetric strategies of potential adversaries of the U.S. 
could well include ballistic missile operations against ports, 
airfields, communications centers or urban and industrial areas. 
Attacking ports and airfields the U.S. might use could severely hamper 
operations and could undercut the military advantages U.S. 
technological superiority provides. Interrupting communications 
channels would make it more difficult to plan, organize and conduct 
operations. Strikes by an adversary on urban and industrial centers 
could change the nature of the conflict from what the U.S. prefers--one 
confined to precision attacks against military forces in the field and 
point targets in urban and industrial settings--to one of 
indiscriminate damage to civilians and the infrastructure supporting 
them.
    In the 1991 Persian Gulf War, Iraqi ballistic missiles threatened 
to undermine the coalition's political strategy, and the coalition's 
military responses failed to halt Iraqi ballistic missile attacks. 
Doctrinal shifts in Russia and China have placed added emphasis on 
ballistic missile operations. Together, these highlight the 
vulnerability to such operations of the U.S., its forces and its 
allies, whether conducted by Russia, China or emerging ballistic 
missile powers. A number of other nations are incorporating technical 
features of the RMA into their forces. These features include space-
based surveillance and reconnaissance. They also include communications 
using either space-based networks (perhaps using civilian assets) or 
land-based fiber-optic networks, guidance from the space-based global 
positioning system/global navigation satellite system (GPS/GLONASS) to 
increase the accuracy of missiles and the computational capabilities 
needed to plan, organize and conduct operations. Their capacity to 
conduct asymmetric operations with ballistic missiles, including 
attacks on RMA sites in the U.S., will increase.

               Attachment 2. Unclassified Working Papers

    table of contents for appendix iii: unclassified working papers
Roundtable Topics, Panelists and Summaries of Panelists' Remarks:
Iran/Iraq: W. Seth Carus, Michael Eisenstadt, Ken Katzman and Ken 
        Timmerman
Russia/Ukraine: Bruce Blair, Stephen Blank, Daniel Goure and Nadia 
        Schadlow
China/Japan/Korea: Gerrit W. Gong, Selig Harrison, Robert Manning and 
        David Wright
India/Pakistan: Daniel Goure, Michael Krepon and David Tanks
North Africa/Israel: W. Seth Carus and Dov Zakheim
Technology Transfers: David C. Isby, John M. Myrah and Henry Sokoiski
Pathways for Transfer: Dennis M. Gormley, Aaron Karp and Richard T. 
        Cupitt
Supplier Nations: Robbin Laird, Tim McCarthy, Keith Payne and David 
        Smith
Roundtable Papers:
Bruce Blair, ``The Plight of the Russian Military and Nuclear Control''
Stephen J. Blank, ``Nuclear Strategy and Nuclear Proliferation in 
        Russian Strategy''
W. Seth Carus, ``Ballistic Missiles in Iran and Iraq: 1988-1998''
W. Seth Carus, ``Israeli Ballistic Missile Developments''
Richard T. Cupitt, ``Export Controls and Missile Technology Transfer''
Michael Eisenstadt, ``Missiles and Weapons of Mass Destruction (WMDs) 
        in Iraq and Iran: Current Developments and Potential for Future 
        Surprises''
Gerrit W. Gong, ``Assessing the Ballistic Missile Threat: China-Japan-
        Korea-Taiwan Issues''
Dennis M. Gormley, ``Transfer Pathways for Cruise Missiles''
Daniel Goure, ``The Evolution of Russian Nuclear Forces: Working to a 
        Plan''
Daniel Goure, ``WMD and Ballistic Missiles in South Asia''
Selig S. Harrison, ``Missile Capabilities in Northeast Asia: Japan, 
        South Korea and North Korea''
David C. Isby, ``Barriers to Proliferation and Pathways to Transfer: 
        Building Ballistic Missile Capabilities Under MTCR''
Aaron Karp, ``Technology Pathways to Ballistic Missiles in Iran''
Kenneth Katzman, ``Iran's Long-Range Missile Capabilities''
Kenneth Katzman, ``Iraq's Long-Range Missile Capabilities''
Michael Krepon, ``India, Pakistan and the Ballistic Missile Threat''
Robbin Laird, ``Rethinking the Role of Western States as Supplier 
        Nations''
Robert A. Manning, ``Missile Proliferation Threats in Northeast Asia''
John M. Myrah, ``The Proliferation of Ballistic Missiles: What Should 
        We Do to Stop It?''
Keith Payne, ``The Missile Technology Control Regime: European 
        Involvement and Compliance Issues''
Nadia Schadlow, ``Patterns of Ukrainian Conduct''
David J. Smith, ``Friendly Countries and Missile Proliferation: Dealing 
        With Different Perceptions''
Henry Sokolski, ``Space Technology Transfers and Missile 
        Proliferation''
David R. Tanks, ``Ballistic Missiles in South Asia: Are ICBMs a Future 
        Possibility?''
Kenneth R. Timmerman, ``Rogue States and Ballistic Missiles: Lessons 
        and Prospects''
David C. Wright, ``An Analysis of the North Korean Missile Program''
Additional Papers:
Kurt Guthe and Keith Payne, ``The Unique Value of Ballistic Missiles 
        for Deterrence and Coercion: The Chinese Case''
Keith Payne and Robert Rudney, ``The Unique Value of Ballistic Missiles 
        for Deterrence and Coercion''
Gilbert Siegert, ``The Chinese Space Program''
Gilbert Siegert, ``Potential Threats from Global Commercial Space 
        Capabilities''
System Planning Corporation, ``Non-Proliferation Issues''
    1. France
    2. Great Britain
    3. Germany
    4. Japan
    5. South Korea

                             Attachment 3.

                    a. resumes of commission members
The Honorable Donald H. Rumsfeld, Chairman
    Mr. Rumsfeld is Chairman of the Board of Directors of Gilead 
Sciences, Inc. Previously he served in a variety of government posts, 
including: Naval Aviator (1954-57), Member of Congress (1963-69), U.S. 
Ambassador to NATO (1972-74), White House Chief of Staff (1974-75), 
Secretary of Defense (1975-77) and Presidential Envoy to the Middle 
East (1983-84). He also served as Chairman of the Rand Corporation 
(1981-86; 1995-96) and as Chairman and CEO of G. D. Searle & Co. (1977-
85) and of General Instrument Corporation (1990-93). He received the 
Presidential Medal of Freedom in 1977.
Dr. Barry M. Blechman
    Dr. Blechman is the president and founder of DFI International (in 
1984) and chairman and co-founder of the Henry L. Stimson Center 
beginning in 1989. He served as Assistant Director of the U.S. Arms 
Control and Disarmament Agency (1977-80). He was previously affiliated 
with the U.S. Army (1964-66), the Center for Naval Analyses (1966-71) 
and Brookings Institution (1971-77). He also was affiliated with the 
Carnegie Endowment (1980-82) and the Center for Strategic and 
International Studies (1982-84). He is the author of Face Without War 
and The Politics of National Security, among others. Dr. Blechman has a 
Ph.D. in international relations.
General Lee Butler, U.S. Air Force (Ret.)
    General Butler served as the Commander-in-Chief of the U.S. 
Strategic Command and Strategic Air Command (1992-94) and as the 
Director of Strategic Plans and Policy on the Joint Chiefs of Staff 
(1989-91). In 1987, he was the Director of Operations at USAF 
Headquarters and served as the Inspector General of the Strategic Air 
Command (1984-86). From 1982 to 1984, he was the Commander of the 96th 
and 320th Bomb Wings. General Butler was an Olmsted Scholar.
Dr. Richard L. Garwin
    Dr. Garwin is a Senior Fellow for Science and Technology with the 
Council on Foreign Relations. He has been an IBM Fellow Emeritus at the 
Thomas J. Watson Research Center since 1993 and was a Fellow from 1952 
to 1993. He has served as a member of the President's Science Advisory 
Committee twice, from 1962 to 1965 and from 1969 to 1972, and he served 
on the Defense Science Board (1966-69). In 1996, the U.S. Foreign 
Intelligence Community awarded him the R.V. Jones Award for Scientific 
Intelligence, and the President and the Department of Energy awarded 
him the Enrico Fermi Award. Dr. Garwin has a Ph.D. in physics.
Dr. William H. Graham
    Dr. Graham is the Chairman of the Board and President of National 
Security Research (1996 to present). He previously was the Director of 
the White House Office of Science & Technology Policy (1986-89) and the 
Deputy Administrator of NASA (1985-86). He has a Ph.D. in electrical 
engineering.
Dr. William Schneider, Jr.
    Dr. Schneider is the President of International Planning Services, 
Inc. (1986 to present). He previously served as the Under Secretary of 
State for Security Assistance (1982-86) and the Chairman of the 
President's General Advisory Committee on Arms Control and Disarmament 
(1987-93). He has a Ph.D. in economics.
General Larry D. Welch, U.S. Air Force (Ret.)
    General Welch is the President and CEO of the Institute for Defense 
Analyses (1990 to present). He previously served as the Chief of Staff 
of the U.S. Air Force (1986-90) and the Commander in Chief of the U.S. 
Strategic Air Command (1985-86).
Dr. Paul D. Wolfowitz
    Dr. Wolfowitz is Dean of the Paul H. Nitze School of Advanced 
International Studies at Johns Hopkins University (1994 to present). He 
previously served as the Under Secretary of Defense for Policy (1989-
93), the U.S. Ambassador to Indonesia (1986-89), the Assistant 
Secretary of State for East Asian and Pacific Affairs (1982-86) and 
Director of the State Department Policy Planning Staff (1981-82). He 
was a member of the Commission on the Roles and Capabilities of the 
United-States Intelligence Community (1995-95). He has a Ph.D. in 
political science.
The Honorable R. James Woolsey
    Mr. Woolsey is a partner in the law firm of Shea & Gardner (1995 to 
present, 1991-93, 1979-89). He previously served as Director of Central 
Intelligence (1993-95), Ambassador and U.S. Representative to the 
Negotiation on Conventional Armed Forces in Europe (1989-91) and Under 
Secretary of the Navy (1977-79). He was a Delegate-at-Large to the 
U.S.-Soviet START and Nuclear and Space Arms Talks (1983-85). He served 
as a member of the Scowcroft Commission (Presidential Commission on 
Strategic Forces, 1983) and the Packard Commission (Presidential Blue 
Ribbon Commission on Defense Management, 1985-86).
               b. resumes of core staff of the commission
    Dr. Stephen A. Cambone, Staff Director. Senior Fellow, Center for 
Strategic and International Studies (1993 to present). Director, 
Strategic Defense Policy, Office of the Secretary of Defense (1990-93); 
Deputy Director of Strategic Analysis, SRS Technologies (1986-90); 
Staff Analyst, Los Alamos National Laboratory (1982-86). Ph.D. in 
political science.
    Dr. Steven A. Maaranen. Policy Planning Staff, Los Alamos National 
Laboratory (1980 to present). Chief, Defense and Space Division, U.S. 
Arms Control and Disarmament Agency (1987-88); Assistant Professor, 
Claremont McKenna College (1976-80). Ph.D. in political science.
    Eric Desautels. Member of Technical Staff TASC, Inc. (1994-98). 
Masters in international security.
    David H. Dunham. Member of Technical Staff TASC, Inc. (1994-98); 
Assistant Director of the Eisenhower World Affairs Institute (1994); 
Special Assistant, Safe and Secure Dismantlement Delegation; Deputy 
Executive Director, General Advisory Committee, U.S. Arms Control and 
Disarmament Agency (1991-94).
    Jason W. Roback. Analyst with the National Institute for Public 
Policy and National Security Research, Inc. (1997 to present). M.S. in 
defense and strategic studies.
    Bernard C. Victory. Analyst at the National Institute for Public 
Policy (1988 to present). Congressional Research Service (1987-88). 
M.A. in international affairs.
    Delonnie Henry. Administrative Assistant, National Defense 
University (1993-98). M.Ed.
                              dci liaison
    Richard Haver. Chief of Staff of the National Intelligence Council. 
Formerly: National Intelligence Officer for Special Activities, 
Executive Director for Intelligence Community Affairs, Assistant to the 
Secretary of Defense for Intelligence Policy and Deputy Director for 
Naval Intelligence.

                   c. commission meetings and agendas

 
----------------------------------------------------------------------------------------------------------------
       Date                      Subject or Activity                                  Visitor
----------------------------------------------------------------------------------------------------------------
Jan. 14            Organization of Commission                      .............................................
 
Jan. 15            U.S. Technical Collection Capabilities          .............................................
                   Simulation, Imagery Intelligence (IMINT),       .............................................
                    Signals Intelligence (SIGINT)
                   Foreign Instrumentation Signals                 .............................................
                   Measures and Signature Intelligence (MASINT)    .............................................
 
Jan. 29            Russia                                          .............................................
                   Changing Political and Economic Circumstances   .............................................
                   Military Changes                                .............................................
                   Nuclear Doctrine                                .............................................
                   Strategic Force Projections                     .............................................
                   Warning, Inadvertent Launch, Anti-Ballistic     .............................................
                    Missile Status
                   C3I, Unauthorized and Accidental Launch         .............................................
 
Jan. 30            China                                           .............................................
                   Political Overview Taiwan                       .............................................
                   Economic Overview                               .............................................
                   Military Overview                               .............................................
                   China's Space Program                           .............................................
                   Nuclear Doctrine                                .............................................
                   Force Structure and Projections                 .............................................
                   Chinese C3I                                     .............................................
 
Feb. 4             Deception and Denial                            .............................................
                   Analytic Depth: China                           .............................................
 
Feb. 5             External Proliferation Concerns                 .............................................
                   Technology Transfer and End Use                 .............................................
 
                   China                                           .............................................
                   Hard Target                                     .............................................
                   Missile Program and                             .............................................
                   Russian Assistance                              .............................................
                   Infrastructure and Government Oversight         .............................................
 
Feb. 9             Nuclear Programs                                .............................................
 
Feb. 19            Nonproliferation Center and Methodological      .............................................
                    Challenges of Proliferation
 
                   Russia                                          .............................................
                   The Spread of Underground Facilities            .............................................
                   Hard Target                                     .............................................
                   Military Missile and Technological              .............................................
                    Infrastructure
                   External Proliferation Concerns                 .............................................
                   The Russian-Iranian Connection                  .............................................
 
Mar. 4             Iran                                            .............................................
                   Collection Challenges                           .............................................
                   Ballistic Missile Program                       .............................................
                   Engine Testing                                  .............................................
                   Missile Infrastructure                          .............................................
                   Alternate Launch Modes                          .............................................
                   Nuclear Program                                 .............................................
                   Biological Weapons                              .............................................
                   Chemical Weapons                                .............................................
                   Buyer, Seller, Broker                           .............................................
 
Mar. 5             North Korea                                     .............................................
                   Collection Challenges                           .............................................
                   Ballistic Missile Program                       .............................................
                   Buyer, Seller, Broker                           .............................................
                   Forces and Doctrine                             .............................................
                   Chemical Weapons                                .............................................
                   Biological Weapons                              .............................................
                   Nuclear Program                                 .............................................
 
Mar. 19            The Honorable George Tenet                      Director of Central Intelligence
                   Ambassador Rolf Ekeus                           Ambassador of Sweden to the U.S.
                   The Honorable Andrew Marshall                   Office of Net Assessment, Office of the
                                                                    Secretary of Defense
                   David Osias                                     Defense Intelligence Officer
                   David Ivry                                      Director-General, Israeli Ministry of Defense
                                                                    (Ret.)
 
Mar. 24            Saudi Arabia                                    .............................................
                   Algeria                                         .............................................
                   Egypt                                           .............................................
                   Libya                                           .............................................
                   Syria                                           .............................................
 
Mar. 25            Meeting of Commissioners at the National        .............................................
                    Security Agency
 
Mar. 30            Iraq                                            .............................................
                   Collection Overview                             .............................................
                   IAEA/UNSCOM Inspection Program                  .............................................
                   Missile Program                                 .............................................
                   Chemical Weapons                                .............................................
                   Biological Weapons                              .............................................
                   Nuclear Program                                 .............................................
 
Mar. 31            India and Pakistan                              .............................................
                   Hard Target                                     .............................................
                   Weapons of Mass Destruction: Motivations,       .............................................
                    Decisionmakers and Doctrine
                   Missile Systems: Capabilities and Production    .............................................
                   India's Naval Development                       .............................................
                   India's Space Program                           .............................................
                   Foreign Proliferation Assistance                .............................................
                   Missile Forces in 2015                          .............................................
                   Chemical & Biological Weapons                   .............................................
                   Nuclear Programs                                .............................................
                   Broker and Seller: Issues of Safety and         .............................................
                    Security
                   Collection Overview                             .............................................
 
Apr. 7             Intelligence Process                            .............................................
                   The Honorable Edward C. ``Pete'' Aldridge, Jr.  President and CEO, Aerospace Corporation
                   Project West Wing                               .............................................
                   Iranian and North Korean Ballistic Missile      .............................................
                    Program
                   Ballistic Missile Technical Hurdles and Work-a- .............................................
                    Rounds
 
6Apr. 8            Deception and Denial                            .............................................
                   Yamantau and Russian Underground Activity       .............................................
 
Apr. 16            Admiral William Studeman, U.S. Navy (Ret.)      Former Deputy Director of Central
                                                                    Intelligence
                   Hurdles of Long-range Ballistic Missiles and    .............................................
                    Work-a-Rounds:
                   1. Liquid Rocket Propulsion                     .............................................
                   2. Solid Rocket Propulsion                      .............................................
                   3. Aerodynamics, Reentry Vehicle                .............................................
                   4. Design and Missile Materials                 .............................................
                   Russian Command and Control Modernization       .............................................
 
Apr. 20            Lt. Gen. Lester Lyles, U.S. Air Force           Director, Ballistic Missile Defense
                                                                    Organization
                   Lt. Gen. Patrick Hughes, U.S. Army              Director, Defense Intelligence Agency
                   Dr. Fred Ikle                                   Former Under Secretary of Defense (Policy)
                   Analysis of Pakistan's Ghauri/No Dong Launch    .............................................
 
Apr. 21            Emerging Long-Range Threat to the U.S           Boeing Corporation
                   Ambassador Frank Wisner                         Former U.S. Ambassador to India and Special
                                                                    Ambassador to Russia
 
Apr. 27            Counterintelligence Brief Industrial Espionage  .............................................
                    Legal Snooping
                   1993 No Dong Flight                             .............................................
                   Foreign Missile Threats                         .............................................
                   Scope of Ballistic Missile Proliferation        .............................................
                    Activities
                   Non-Proliferation Methodologies                 .............................................
                   Dr. Sidney Drell                                Deputy Director, Stanford Linear Accelerator
                                                                    Center
 
May 7              Foreign Missile Assessment                      Lockheed Martin Corporation
                   Payload Fabrication and Delivery                .............................................
                   Commercial Space-Launch Vehicles, Peacekeeper   Orbital Sciences Corporation
                    Conversion
                   Contemporaneous History of Iran's Missile       .............................................
                    Programs
 
May 8              Gordon Oehler                                   Former Director, Office of the Director of
                                                                    Central Intelligence Nonproliferation Center
                   The Honorable William Reinsch                   Undersecretary of Commerce for Export
                                                                    Administration
 
May 18             Naval Intelligence Briefing                     .............................................
                   Contemporaneous History of North Korea's        .............................................
                    Missile Program Assessment of a Hypothetical
                    Taepo Dong III
                   Dr. William J. Perry                            Former Secretary of Defense
                   Lt. General William Odom, U.S. Army (Ret.)      Former Director of the National Security
                                                                    Agency
 
May 19             Drafting of Final Report                        .............................................
 
May 27             Dr. James Schlesinger                           Former Secretary of Defense and Director of
                                                                    Central Intelligence
                   Drafting of Final Report                        .............................................
 
Jun. 3             Drafting of Final Report                        .............................................
 
Jun. 4             Dr. Harold Brown                                Former Secretary of Defense
                   Drafting of Final Report                        .............................................
 
Jun. 11            Drafting of Final Report                        .............................................
 
Jun. 16            The Honorable Caspar Weinberger                 Former Secretary of Defense
                   Drafting of Final Report                        .............................................
 
Jun. 17            Office Call with the Honorable William S.       Secretary of Defense, The Pentagon
                    Cohen
                   Drafting of Final Report                        .............................................
 
Jun. 23            Information Warfare                             .............................................
                   Dr. John Deutch                                 Former Director of Central Intelligence
                   Brief on Israel                                 .............................................
                   Drafting of Final Report                        .............................................
 
Jun. 24            General Colin Powell, U.S. Army (Ret.)          Former Chairman, Joint Chiefs of Staff
                   Lt. Gen. Brent Scowcroft, U.S. Air Force        Former National Security Advisor to the
                    (Ret.)                                          President
                   Cruise Missiles                                 .............................................
                   Drafting of Final Report                        .............................................
 
Jun. 29            Office Call with General Henry H.Shelton, U.S.  Chairman, Joint Chiefs of Staff, The Pentagon
                    Army
                   Drafting of Final Report                        .............................................
 
Jun. 30            Drafting of Final Report                        .............................................
 
Jul. 7             Office Call with the Honorable Samuel R.        Assistant to the President for National
                    ``Sandy'' Berger                                Security, The White House
                   Foreign Students in the United States           .............................................
 
Jul. 8             Information Warfare                             .............................................
                   Space Reconnaissance                            .............................................
                   Y2K Problem in Russia                           .............................................
                   Collection Capabilities                         .............................................
 
Jul. 15            Deliver Report to Congress                      Senior Leadership of the U.S. Senate and U.S.
                                                                    House of Representatives, The Capitol
----------------------------------------------------------------------------------------------------------------

                           d. site visits \1\
---------------------------------------------------------------------------
    \1\ All sites except the National Air Intelligence Center were 
visited by one or more Commissioners.
---------------------------------------------------------------------------
March 6: National Air Intelligence Center Wright Patterson Air Force 
        Base, Dayton, Ohio
March 10: Sandia National Laboratories, Kirtland Air Force Base, 
        Albuquerque, New Mexico
March 16: Aerospace Corporation, Los Angeles, California
March 25: National Security Agency, Fort Meade, Maryland
April 3: Center for International Security Affairs, Los Alamos National 
        Laboratory, Los Alamos, New Mexico
April 22: National Reconnaissance Office, Sterling, Virginia
May 6: Defense Intelligence Agency Briefing, Andrews Air Force Base, 
        Suitland, Maryland
May 15: Missile and Space Intelligence Center, Redstone Arsenal, 
        Huntsville, Alabama
June 5: U.S. Space Command, Peterson Air Force Base, Colorado Springs, 
        Colorado
June 8: Lawrence Livermore National Laboratory, Livermore, California
                             e. interviews
Dr. Edward C. ``Pete'' Aldridge, Jr., former Secretary of the Air Force 
        and Director of the National Reconnaissance Office
The Honorable Samuel R. ``Sandy'' Berger, Assistant to the President 
        for National Security Affairs
The Honorable Dr. Harold Brown, former Secretary of Defense
The Honorable William S. Cohen, Secretary of Defense
The Honorable Dr. John Deutch, former Director of Central Intelligence 
        and Deputy Secretary of Defense
Dr. Sidney Drell, Deputy Director, Stanford Linear Accelerator Center
Ambassador Rolf Ekeus, Ambassador of Sweden to the United States
Lieutenant General Patrick Hughes, U.S. Army, Director, Defense 
        Intelligence Agency
David Ivry, former Director-General of the Ministry of Defense of 
        Israel
Dr. Frederick Ikle, former Undersecretary of Defense
David A. Kier, Deputy Director for the National Reconnaissance Office
Lieutenant General Lester Lyles, U.S. Air Force, Director, Ballistic 
        Missile Defense Organization
The Honorable Andrew Marshall, Director of Net Assessment, Office of 
        the Secretary of Defense
Barbara McNamara, Deputy Director, National Security Agency
Lieutenant General William Odom, U.S. Army (Ret.), former Director of 
        the National Security Agency
Gordon Oehler, former Director Nonproliferation Center, Office of the 
        Director of Central Intelligence
David Osias, Defense Intelligence Officer for Acquisition Support, 
        Counter-proliferation and Arms Control
The Honorable Dr. William J. Perry, former Secretary of Defense
General Colin A. Powell, U.S. Army (Ret.), former Chairman of the Joint 
        Chiefs of Staff and National Security Advisor to the President
The Honorable William A. Reinsch, Undersecretary of Commerce for Export 
        Administration
The Honorable Dr. James Schlesinger, former Secretary of Defense, 
        Director of Central Intelligence and Secretary of Energy
Lieutenant General Brent Scowcroft, U.S. Air Force (Ret.), former 
        National Security Advisor to the President
General Henry H. Shelton, U.S. Army, Chairman, Joint Chiefs of Staff
Admiral William Studeman, U.S. Navy (Ret.), former Deputy Director of 
        Central Intelligence and Director, National Security Agency
The Honorable George J. Tenet, Director of Central Intelligence
The Honorable Caspar Weinberger, former Secretary of Defense
Ambassador Frank Wisner, former U.S. Ambassador to India
                           f. acknowledgments
    The Commissioners wish to express their appreciation to the men and 
women of the U.S. Intelligence Community. Over 300 of them took time to 
meet with the Commissioners on the subject of the ballistic missile 
threat to the United States.
    In particular, the Commissioners express their thanks to the 
Honorable George Tenet, Director, Central Intelligence, and to the 
directors of the Defense Intelligence Agency, National Security Agency, 
National Reconnaissance Office, National Imagery and Mapping Agency and 
the Office of Naval Intelligence for making the time of their analysts 
available to the Commission and for providing a level of access to 
information infrequently granted.
    Special thanks are extended to Rich Haver, the DCI's liaison to the 
Commission. His knowledge of the issues, familiarity with the ways of 
the Intelligence Community and his unfailing good humor made the task 
of the Commission far easier than it might otherwise have been. The 
Commissioners would like to thank those analysts and managers of the 
Bureau of Intelligence and Research (Department of State), Defense 
Technology Security Administration (Department of Defense), CIA, DIA, 
NSA, NRO and NIMA who served as the points of contact for their 
respective agencies. Their efforts to schedule briefings and to provide 
information is greatly appreciated.
    The Commissioners would also like to thank the support staff 
provided by the Central Intelligence Agency who served in the 
Commission office and those in the Multimedia Production Group, 
Cartography Department and Printing and Photography Group who assisted 
in the design and publication of the final version of the Report.
                                 ______
                                 
                                     U.S. Congress,
                      Committee on International Relations,
                                     Washington, DC, June 16, 1997.
The President
The White House
Washington, DC.

    Dear Mr. President:
    Last week the House of Representatives approved H.R. 1758, the 
``European Security Act of 1997.'' I originally introduced this 
legislation on April 24th of this year with the cosponsorship of Dick 
Armey, Jerry Solomon, Porter Goss, Curt Weldon, and others to address a 
number of issues bearing on U.S. relations with Russia.
    Pursuant to House Resolution 159, the European Security Act as 
passed by the House has been appended to H.R. 1757, the ``Foreign 
Relations Authorization Act for Fiscal Year 1998 and 1999.'' Inasmuch 
as the Senate companion measure to H.R. 1757 is scheduled for Senate 
floor action this week, it appears likely that the European Security 
Act will be addressed in a House-Senate conference committee in the 
very near future.
    As we prepare for conference on the European Security Act, we find 
it necessary to ask for additional information relevant to one of the 
bill's provisions relating to multilateralization of the Anti-Ballistic 
Missile (ABM) Treaty.
    Section 6(c)(1) of the European Security Act states that:

          It is the sense of the Congress that until the United States 
        has taken the steps necessary to ensure that the ABM Treaty 
        remains a bilateral treaty between the United States and the 
        Russian Federation (such state being the only successor state 
        of the Union of Soviet Socialist Republics that has deployed or 
        realistically may deploy an anti-ballistic missile defense 
        system), no ABM/TMD demarcation agreement will be considered 
        for approval for entry into force with respect to the United 
        States. . . .

    I am aware that, subsequent to the introduction of the European 
Security Act, the Senate on May 14th approved Treaty Doc. No. 105-5, a 
resolution advising and consenting to ratification of the CFE Flank 
Agreement. Condition 9 of this resolution required the President to:

        . . . certify to Congress that he will submit for Senate advice 
        and consent to ratification any international agreement . . . 
        that would add one or more countries as States Parties to the 
        ABM Treaty, or otherwise convert the ABM Treaty from a 
        bilateral treaty to a multilateral treaty . . .

I am further aware that, on May 15th, you submitted to Congress the 
certification required by Condition 9 of Treaty Doc. No. 105-5.
    In order to help the conferees on the European Security Act 
understand the degree to which section 6(c)(1) of that bill has been 
addressed (and perhaps rendered unnecessary) by Condition 9 of Treaty 
Doc. 105-5, I would appreciate receiving your prompt response to the 
following questions:

    1. In the view of the Administration, what countries in addition to 
the United States are today parties to the ABM Treaty?
    2. What countries sent representatives to the most recent meeting 
of the Standing Consultative Commission in Geneva?
    3. To the extent that the list of countries identified in response 
to question no. 1 includes countries in addition to those identified in 
response to question no. 2, does the Administration believe that those 
additional countries have the legal right to send representatives to 
meetings of the Standing Consultative Commission and otherwise 
participate in the administration of the ABM Treaty? .
    4. To the extent that the list of countries identified in response 
to question no. 1 includes countries in addition to those identified in 
response to question no. 2, why are those additional countries not 
currently participating in the Standing Consultative Commission? Are 
those additional countries aware that, in the view of the United States 
Government, they are parties to and are bound by the ABM Treaty? On 
what date were they informed of this fact by the United States 
Government?
    5. To the extent that the list of countries identified in response 
to question no. 2 includes countries in addition to those identified in 
response to question no. 1, what is the legal justification for the 
participation of those additional countries in the Standing 
Consultative Commission?
    6. Does the Administration currently intend to conclude with 
Russia, Ukraine, Kazakhstan, Belarus, or any other of the newly 
independent states an agreement or agreements regarding ABM Treaty 
succession?
    7. In the event that the Senate fails to act on an agreement 
submitted to it by the Administration regarding ABM Treaty succession, 
what countries in addition to the United States will, in the view of 
the Administration, be parties to the ABM Treaty?
    8. In the event that the Senate votes to reject an agreement 
submitted to it by the Administration regarding ABM Treaty succession, 
what countries in addition to the United States will, in the view of 
the Administration, be parties to the ABM Treaty?
    9. Apart from the consequences that would flow from Senate approval 
of, rejection of, or inaction on an agreement submitted to it by the 
Administration regarding ABM Treaty succession, what other 
developments, if any, may lead to a change in the list of countries 
that are today parties to the ABM Treaty?
    10. Apart from the consequences that would flow from Senate 
approval of, rejection of, or inaction on an agreement submitted to it 
by the Administration regarding ABM Treaty succession, what other 
developments, if any, may lead to a change in the list of countries 
legally entitled to send representatives to meetings of the Standing 
Consultative Commission and otherwise participate in the administration 
of the ABM Treaty?

    I appreciate your cooperation in this matter.
    With warmest regards,

            Sincerely,
                              Benjamin A. Gilman, Chairman.
                                 ______
                                 

                            THE WHITE HOUSE

                               washington

                           November 21, 1997

The Honorable Benjamin A. Gilman, Chairman,
Committee on International Relations,
House of Representatives,
Washington, DC.

    Dear Mr. Chairman:
    Thank you for your letter concerning the Anti-Ballistic Missile 
(ABM) Treaty succession arrangements. As you know, after discussion 
between our staffs, we deferred this formal response to your letter 
pending completion of the ABM-related agreement, including the 
Memorandum of Understanding (MOU) on ABM Treaty succession. These 
documents were signed on September 26, 1997, and mark, along with the 
START II documents that were signed the same day, a significant step 
forward. The MOU, as well as the agreements relating to the demarcation 
between theater and strategic ballistic missile defense systems, will 
be provided to the Senate for its advice and consent. Thus, the 
Congressional concerns that you raised related to approval of these 
agreements have been directly addressed.
    You raised a number of questions on ABM Treaty discussion 
generally. Let me make a few background points. The MOU on succession 
was the result of detailed negotiations spanning several years. When 
the USSR dissolved at the end of 1991, it became necessary to reach 
agreement as to which former Soviet states would collectively assume 
its rights and obligations under the Treaty (which clearly continued in 
force by its own terms). The United States took the view that, as a 
general principle, agreements between the United States and the USSR 
that were in force at the time of the dissolution of the Soviet Union 
would be presumed to continue in force as to the former Republics. It 
became clear, however, particularly in the area of arms control, that a 
case-by-case review of each agreement was necessary.
    In dealing with matters of succession, a key U.S. objective has 
been to preserve the substance of the origina1 treaty regime as closely 
as possible. This was true with respect to the elaboration of the MOU 
as well. Accordingly, the MOU works to preserve the original object and 
purpose of the Treaty. For example, it restricts the four successor 
states to only those rights held by the former Soviet Union by limiting 
them collectively to no more than 100 interceptors on 100 launchers at 
a single ABM deployment area and precluding the transfer of ABM systems 
and components to states that are not Party to the Treaty. Neither a 
simple recognition of Russia as the sole ABM successor (which would 
have ignored several former Soviet states with significant ABM 
interests) nor a simple recognition of all NIS states as full ABM 
successors would have preserved fully the original purpose and 
substance of the Treaty, as approved by the Senate in 1972.
    Our willingness to work with key successor states, in addition to 
Russia, on strategic arms control issues has served, and will continue 
to serve, U.S. national security interests. Under the Lisbon Protocol 
to the START I Treaty, Belarus, Kazakhstan, Russia and Ukraine, the 
successor states on whose territory, all strategic offensive arms of 
the former Soviet Union were based and all declared START-related 
facilities were located, assumed the rights and obligations of the 
former Soviet Union under the START I Treaty. The Protocol also 
obligated Belarus, Kazakhstan, and Ukraine to adhere to the Treaty on 
the Nonproliferation of Nuclear Weapons. Both the Bush Administration 
and Clinton Administration engaged in major diplomatic initiatives to 
ensure implementation of the Lisbon Protocol, especially with respect 
to the removal of all nuclear warheads from Ukraine, Belarus, and 
Kazakhstan, the accession at these successor states to the 
Nonproliferation Treaty, and the entry into force of START I.
    For certain key successor states to the former Soviet Union, ABM 
Treaty succession was, and remains, a priority issue. Ukraine, in 
particular, has made clear to us that it considers Ukraine's legal 
status under the ABM Treaty to be the same as under the INF Treaty (to 
which it is considered a Party) and that, in its view, its succession 
status with regard to both Treaties should be the same.
    There are many complex factors in our strategic relationship with 
the former Soviet states. Had we been unwilling to engage with states 
in addition to Russia on key arms control agreements (START, INF and 
ABM), it is unlikely that we would have achieved the kind of 
comprehensive resolution of issues related to the disposition of 
strategic assets that has been achieved. A change in course at this 
time that would exclude key successor states from the ABM succession 
formula could place at risk continued progress on strategic arms and 
other nuclear matters.
    Since the last review of the ABM Treaty in 1993, (required every 
five years by the terms of the Treaty, Belarus, Kazakhstan, Russia, and 
Ukraine--each of which have ABM Treaty-related assets on its 
territory--have been the only former Soviet republics that have 
participated in the ABM Treaty-related discussions held in the Standing 
Consultative Commission (SCC). While the other eight former Soviet 
republics have been informed of SCC sessions, none has participated, 
and three--Armenia, Azerbaijan, and Moldova--have expressed their lack 
of interest in being considered as Parties to the Treaty. Indeed, it 
became clear over the past four years of negotiations that, in addition 
to Russia, the former Soviet republics of Belarus, Kazakhstan, and 
Ukraine have substantial interest in the specific subject matter of the 
Treaty. For these reasons, prior to the signing of the MOU, the United 
States notified the other eight new independent states of our 
intentions to bring the succession issue to closure and to sign the MOU 
with Belarus, Kazakhstan, the Russian Federation, and Ukraine, 
recognizing that these four successor states, along with the United 
States, constitute the Parties to the ABM Treaty.
    Upon its entry into force, the MOU will confirm the four former 
Soviet states participating in the SCC as the successor states to the 
Soviet Union for purposes of the Treaty. This does not constitute a 
substantive modification of rights and obligations under the Treaty; 
rather, it is a recognition of the status of those former Soviet 
republics in light of the dissolution of the USSR. As a practical 
matter, the recently signed SCC regulations make clear that the 
increased SCC participation will be structured in a way similar to, and 
having the same effect as, that which has been successful for the 
United States in working with Belarus, Kazakhstan, Russia and Ukraine 
in implementing the START and INF Treaties.
    As to your question regarding the possibility that the Senate might 
fail to act upon or might reject the MOU on succession, we believe that 
the case for all the ABM-related agreements, including the MOU on 
succession, will prevail on its merits. We further believe that the 
package of agreements serves U.S. national security and foreign policy 
objectives. If, however, the Senate were to fail to act or to disagree 
and disapprove the agreements, succession arrangements will simply 
remain unsettled. The ABM Treaty itself would clearly remain in force.
    We appreciate this opportunity to clarify the record in this area 
and look forward to future opportunities to communicate and consult 
with you on these matters.

            Sincerely,
                                              Bill Clinton.
                                 ______
                                 
                                             U.S. Congress,
                                     Washington, DC, March 3, 1998.
The President
The White House
Washington, DC.

    Dear Mr. President:
    We appreciate your response of November 21, 1997, to Chairman 
Gilman's letter of June 16, 1997, regarding the proposed 
multilateralization of the Anti-Ballistic Missile (ABM) Treaty. We 
appreciate as well your making Administration lawyers available to meet 
with congressional staff on January 30, 1998, to elaborate on your 
November 21st response.
    The most important legal question that arises in connection with 
multilateralization of the ABM Treaty is the first question posed in 
Chairman Gilman's letter: In the view of the Administration, what 
countries in addition to the United States are today parties to the ABM 
Treaty?
    Your response to this question appears to be: Until an agreement on 
succession to the ABM Treaty comes into force, the identity of the 
other party or parties to the ABM Treaty is ``unsettled.'' Indeed, when 
asked on January 30th whether Russia, Ukraine, Uzbekistan, or any other 
country that emerged from the Soviet Union is today prohibited by the 
ABM Treaty from deploying an ABM system at more than one site, 
Administration lawyers stated repeatedly that it is ``unclear'' whether 
any of these countries is so bound.
    The Administration's response is profoundly disturbing. If it is 
unclear as a matter of law whether Russia or any other country that 
emerged from the Soviet Union is today bound by the ABM Treaty, then it 
also should be unclear whether the United States is so bound. Yet the 
Administration has insisted for years that the United States remains 
fully bound by the ABM Treaty.
    With regard to ballistic missile defense, for example, the 
Administration has argued consistently that the United States should 
not test or deploy certain systems that could provide our nation highly 
effective protection against ballistic missile attack because such 
systems would violate our nation's obligations under the ABM Treaty. It 
now appears, however, that the Administration views the United States, 
at least for the time being, as the only country that is clearly 
subject to those obligations.
    It is obvious to us, however, that under basic principles of 
international law a treaty requires more than one state party in order 
to give rise to binding legal obligations. If the Administration is 
unable to identify any country in addition to the United States that is 
today clearly bound by the ABM Treaty, then there is no country that 
the United States can look to today to uphold the obligations 
previously imposed on the Soviet Union by the Treaty, and no country 
that today is entitled to complain if the United States fails to uphold 
the Treaty.
    If, in fact, the Administration does not consider the United States 
to be the only country that is today clearly bound by the ABM Treaty, 
we would appreciate your identifying for us the other country (or 
countries) that is today party to--and bound by--the Treaty. In the 
absence of such clarification, we will have no choice but to conclude 
that the ABM Treaty has lapsed until such time as the Senate approves a 
succession agreement reviving the Treaty.
    Thank you for your attention to this inquiry.
    With best wishes,

            Sincerely,
                              Benjamin A. Gilman, Chairman,
                              Committee on International Relations.

                                     Jesse Helms, Chairman,
                                    Committee on Foreign Relations.
                                 ______
                                 

                            THE WHITE HOUSE

                               washington

                              May 21, 1998

The Honorable Jesse Helms, Chairman,
Committee on Foreign Relations,
U.S. Senate,
Washington, DC.

    Dear Mr. Chairman:
    Thank you for your letter concerning the Anti-Ballistic Missile 
(ABM) Treaty succession arrangements. As I said in my letter of 
November 21, 1997, the Administration will provide to the Senate for 
its advice and consent the Memorandum of Understanding (MOU) on ABM 
Treaty succession, which was signed on September 26, 1997. Moreover, 
the MOU will settle ABM Treaty succession. Upon its entry into force, 
the MOU will confirm Belarus, Kazakhstan, Russia, and Ukraine as the 
successor states to the Soviet Union for purposes of the Treaty and 
make clear that only these four states, along with the United States, 
are the ABM Treaty Parties.
    In your letter of March 3, you state that if the Administration is 
unable to identify any country in addition to the United States that is 
clearly bound by the Treaty, then you would have no choice but to 
conclude that the Treaty has lapsed until such time as the Senate 
approves a succession agreement reviving the Treaty.
    Following the dissolution of the Soviet Union, ten of the twelve 
states of the former Soviet Union initially asserted a right in a 
Commonwealth of Independent States resolution, signed on October 9, 
1992, in Bishkek, to assume obligations as successor states to the 
Soviet Union for purposes of the Treaty. Only four of these states have 
subsequently participated in the work of the Standing Consultative 
Commission (SCC), and none of the other six has reacted negatively when 
we informed each of them that, pursuant to the MOU, it will not be 
recognized as an ABM successor state. A principal advantage of the 
Senate's approving the MOU is that the MOU's entry into force will 
effectively dispose of any such claim by any of the other six states.
    In contrast, Belarus, Kazakhstan and Ukraine each has ABM Treaty-
related assets on its territory; each has participated in the work of 
the SCC; and each has affirmed its desire to succeed to the obligations 
of the former Soviet Union under the Treaty. Thus, a strong case can be 
made that, even without the MOU, these three states are Parties to the 
Treaty.
    Finally, the United States and Russia clearly are Parties to the 
Treaty. Each has reaffirmed its intention to be bound by the Treaty; 
each has actively participated in every phase of the implementation of 
the Treaty, including the work of the SCC; and each has on its 
territory extensive ABM Treaty-related facilities.
    Thus, there is no question that the ABM Treaty has continued in 
force and will continue in force even if the MOU is not ratified. 
However, the entry into force of the MOU remains essential. As I 
pointed out in my letter of November 21, the United States has a clear 
interest both in confirming that these states (and only these states) 
are bound by the obligations of the Treaty, and in resolving 
definitively the issues about ABM Treaty succession that are dealt with 
in the MOU. Without the MOU, ambiguity will remain about the extent to 
which states other than Russia are Parties, and about the way in which 
ABM Treaty obligations apply to the successors to the Soviet Union. 
Equally important, maintaining the viability of the ABM Treaty is key 
to further reductions in strategic offensive forces under START II and 
START III.
    I appreciate this further opportunity to clarify the record in this 
area.

            Sincerely,
                                              Bill Clinton.
                                 ______
                                 
                                     U.S. Congress,
                      Committee on International Relations,
                                   Washington, DC, August 14, 1998.
The President
The White House
Washington, DC.

    Dear Mr. President:
    Thank you for your letters of November 21, 1997 and May 21, 1998, 
responding to inquiries from me and Chairman Helms about succession to 
the Anti-Ballistic Missile (ABM) Treaty. As stated in our letter to you 
of March 3, 1998, the most important question that arises in this 
connection is the following: In the view of the Administration, what 
countries in addition to the United States are today parties to the ABM 
Treaty?
    I understand from your letter of May 21st that the Administration's 
answer to this question is that Russia ``clearly'' is a party to the 
Treaty, and that with regard to Belarus, Kazakhstan, and Ukraine, ``a 
strong case can be made that . . . these three states are Parties to 
the Treaty.'' In other words, you draw a distinction between Russia on 
the one hand and Belarus, Kazakhstan, and Ukraine on the other, and 
believe that Russia succeeded automatically to the USSR's obligations 
under the ABM Treaty, while Belarus, Kazakhstan, and Ukraine may not 
have succeeded automatically to those obligations. But you do not rule 
out the possibility that, upon further consideration, the 
Administration may conclude that Belarus, Kazakhstan, and Ukraine 
automatically succeeded as well.
    This answer raises several additional questions that are set forth 
below:

    1. To the degree that Belarus, Kazakhstan, and Ukraine may have 
succeeded automatically under international law to the obligations of 
the USSR under the ABM Treaty, would that succession result in a series 
of bilateral ABM Treaties (U.S.-Belarus, U.S.-Kazakhstan, and U.S.-
Ukraine, as well as U.S.-Russia), or one multilateral ABM Treaty to 
which all of these countries are parties?
    2. If the response to the previous question is that the result of 
automatic succession by Belarus, Kazakhstan, and Ukraine would be one 
multilateral ABM Treaty, please identify the historical precedents, if 
any, for such a succession. In other words, please describe any other 
bilateral treaties that, upon the dissolution of one of the parties to 
the treaty, were converted automatically by operation of international 
law into multilateral treaties involving two or more of the successor 
states.
    3. Will Belarus, Kazakhstan, and Ukraine participate in future 
meetings of the Standing Consultative Commission (SCC) and in the next 
five-year review conference of parties to the ABM Treaty?
    4. If the response to the previous question is that Belarus, 
Kazakhstan, and Ukraine will participate in future SCC meetings and the 
next five-year review conference, what will be the legal basis for such 
participation? To the degree that such participation does not rest on a 
conclusion that Belarus, Kazakhstan, and Ukraine succeeded 
automatically under international law to the ABM Treaty, please explain 
why such participation is not inconsistent with (1) Article IX(3) of 
the Memorandum of Understanding on Succession to the ABM Treaty of 
September 26, 1997, and (2) your certification to the Congress of May 
15, 1997, in accordance with Condition 9 of the Senate resolution 
advising and consenting ratification of the CFE Flank Agreement (Treaty 
Doc. No. 105-5).
    I look forward to your prompt response to these questions.
    With warmest regards,

            Sincerely,
                              Benjamin A. Gilman, Chairman.
                                 ______
                                 
                                               U.S. Senate,
                                   Washington, DC, October 5, 1998.
The President
The White House
Washington, DC.

    Dear Mr. President:
    Your May 21, 1998, letter regarding the status of the 1972 Anti-
Ballistic Missile (ABM) Treaty is clearly at odds with historical fact, 
your administration's past representations regarding this issue, and 
the Memorandum of Understanding (MOU) on succession itself.
    Moreover, your letter seeks to repudiate your pledge to the Senate, 
made in a treaty-related certification on May 14, 1997, that you would 
respect your Constitutional obligation to seek the advice and consent 
of the Senate for any agreement adding parties to the ABM Treaty, or 
changing its geographic scope.
    If your administration persists in the assertions made in the 
letter of May 21, 1998, the validity of the ratification of the 
Document Agreed Among the States Parties to the Treaty on Conventional 
Armed Forces in Europe of November 19, 1990, also known as the CFE 
Flank Agreement, will be called into question. Your recent letter 
directly contravenes your certification of May 14, 1997, raising the 
inescapable conclusion that the instrument of ratification for the CFE 
Flank Agreement deposited on behalf of the United States is defective 
under U.S. constitutional law. Failure to reconsider your position not 
only will make further cooperation between Congress and your 
Administration on arms control matters difficult; it will undermine 
both the credibility of your administration, and of the United States, 
in the international affairs of the nation.
    In a November 21, 1997 letter to Representative Gilman, and in 
accompanying briefings by Administration lawyers, your administration 
stated that ABM Treaty succession arrangements were ``unsettled'' and 
would remain so in the absence of a new agreement (which you certified 
you would submit for Senate approval). Moreover, your letter to Mr. 
Gilman takes note of no distinction between the legal status of Russia 
and that of the other states proposed as ABM Treaty parties. Indeed, 
you stated in that letter:

          Neither a simple recognition of Russia as the sole ABM 
        successor (which would have ignored several former Soviet 
        states with significant ABM interests) nor a simple recognition 
        of all NIS states as full ABM successors would have preserved 
        fully the original purpose and substance of the Treaty, as 
        approved by the Senate in 1972.

    However, in your May 21, 1998, letter, you reversed course by 
asserting that ``the United States and Russia clearly are parties to 
the Treaty.'' Russia's desire to become a party, its participation in 
the treaty's activities, and the presence of ``ABM-Treaty related 
facilities''--a newly-invented term found nowhere in the ABM Treaty--on 
its territory are cited as reasons for this conclusion. You also 
decline to identify Belarus, Kazakhstan and Ukraine as parties, 
although you assert that ``a strong case can be made that even without 
the MOU, these three states are Parties to the Treaty,'' citing 
substantially the same factors that supposedly make Russia a party.
    Mr. President, there is no basis for any distinction between the 
legal status of Russia and that of the other states you mention. In a 
briefing to congressional staff on January 30, 1998, Administration 
lawyers were asked directly whether Russia was the only other clear 
party to the Treaty. They stated definitively that this was not the 
case. Numerous Administration representations and public statements, 
including the State Department's publication of ``Treaties in Force,'' 
have been consistent in making no legal distinction among the former 
Soviet states who are potential successors to the ABM Treaty. Article 
VIII of the MOU itself notes that regulations of the Standing 
Consultative Commission ``shall reflect the equal legal status of the 
Parties.'' Further, we are confident that the record of negotiation on 
the succession issue is replete with expressions by the United States 
of the view that the potential successors to the Soviet Union all have 
the same legal status. In short, your recent letter has no basis in 
historical fact.
    Moreover, your May 21, 1998, assertion that ``a strong case could 
be made'' that four countries could today be parties to the treaty is 
directly contradicted by Article I of the MOU, which states that the 
United States, Belarus, Kazakhstan, Ukraine, and Russia ``upon entry 
into force of this Memorandum, shall constitute the Parties to the 
Treaty.'' Very clearly, the entry-into-force of the MOU is the 
triggering event--and one that has not yet occurred--by which these 
states may become parties to the ABM Treaty. In short, none of the 
potential successors were identified as parties to the ABM Treaty 
during the period of negotiation, nor at any time preceding your 
certification. Nothing has transpired since that time that would 
constitute formal recognition of any state as a party to the ABM 
Treaty.
    Your assertion that Russia is a Party to the ABM Treaty, and your 
claim that the three other states might be, imply that the issue of the 
ABM treaty's status is fundamentally settled. Mr. President, this 
matter is most definitely not settled unless and until the Senate 
approves the MOU, or a similar agreement, through the exercise of the 
advice and consent powers assigned to it by the Constitution. It is the 
Senate's constitutional responsibility, and its duty, to advise on and 
consent to treaty arrangements made on behalf of the United States. Any 
such arrangements are invalid without the Senate's consent.
    Consent was given to the CFE Flank Agreement on condition that you 
would certify to the Congress of the United States that you would 
submit for the advice and consent of the Senate:

        . . . any international agreement (i) that would add one or 
        more countries as States Parties to the ABM Treaty, or 
        otherwise convert the ABM Treaty from a bilateral treaty to a 
        multilateral treaty; or (ii) that would change the geographic 
        scope or coverage of the ABM Treaty, or otherwise modify the 
        meaning of the term ``national territory'' as used in Article 
        VI and Article IX of the ABM Treaty.

On May 14, 1997, you made this certification.
    Since it is impossible to resolve the ABM Treaty's status without 
meeting one of these two conditions, your certification put to rest any 
question about whether ABM Treaty succession requires the advice and 
consent of the Senate. Your assertion now that Russia, and perhaps 
Belarus, Kazakhstan and Ukraine are parties to the ABM Treaty ``even 
without the MOU'' is, a repudiation of your certification. It implies 
that Senate advice and consent is not only unnecessary, but also 
irrelevant, and that these states may already have succeeded to the 
Treaty without Senate approval.
    The Senate's advice and consent powers are not ceremonial or pro 
forma. They do not exist for the convenience of the executive branch in 
order to clarify ``ambiguity,'' as your letter states. They are the 
powers by which the legislative branch--and the legislative branch 
alone--decides whether, how, and with whom the United States is bound 
by treaty.
    In light of the numerous and irreconcilable inconsistencies between 
your letters of November 21, 1997, and May 21, 1998, the internal 
contradictions within your most recent letter, the disregard for the 
negotiating record and historical fact, and other contrivances without 
basis in the treaty, we have no choice but to conclude that the ABM 
Treaty did not survive the dissolution of the Soviet Union. 
Accordingly, it is our position that the ABM Treaty has lapsed and is 
of no force and effect unless the Senate approves the MOU, or some 
similar agreement, to revive the treaty.
    We strongly urge that you reconsider your position of May 21, 1998, 
and reaffirm your pledge of more than a year ago.

            Sincerely,
                                   Trent Lott
                                   Jesse Helms
                                   Don Nickles
                                   Connie Mack
                                   Larry E. Craig
                                   Paul Coverdell
                                   Jon Kyl
                                   Bob Smith
                                 ______
                                 

                            THE WHITE HOUSE

                               washington

                           December 17, 1998

The Honorable Jesse Helms, Chairman,
Committee on Foreign Relations,
U.S. Senate,
Washington, DC.

    Dear Mr. Chairman:
    Thank you for your letter concerning the Anti-Ballistic Missile 
(ABM) Treaty succession arrangements. As I said in my two previous 
letters on this subject, the Memorandum of Understanding (MOU) on ABM 
Treaty succession, which was signed on September 26, 1997, will be 
provided to the Senate for its advice and consent.
    While I respect the fact that the MOU will not enter into force 
without the advice and consent of the Senate, there is no question the 
ABM Treaty has continued in force following the dissolution of the 
Soviet Union. If the Senate were to fail to approve the MOU, ambiguity 
would remain about the extent to which states other than Russia are 
Parties; however, the ABM Treaty would continue in force.
    The United States has a clear interest in resolving definitively 
the issues about ABM Treaty succession that are dealt with in the MOU. 
I am confident that any differences of views regarding the MOU, or 
additional questions you may have, will be debated fully as the Senate 
considers the MOU. In the interim, I suggest our staffs continue their 
dialogue regarding the technical legal aspects of ABM Treaty 
succession.

            Sincerely,
                                              Bill Clinton.
                                 ______
                                 

                 Presidential Message 35 (May 14, 1997)

TO THE CONGRESS OF THE UNITED STATES:

    In accordance with the resolution of advice and consent to 
ratification on the Document Agreed Among the States Parties to the 
Treaty on Conventional Armed Forces in Europe of November 19, 1990 
(``the CFE Flank Document''), adopted by the Senate of the United 
States on May 14, 1997, I hereby certify that:

    In connection with Condition (2), Violations of State Sovereignty, 
the United States and the governments of Belgium, Canada, Denmark, 
France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, 
Norway, Portugal, Spain, Turkey and the United Kingdom have issued a 
joint statement affirming that (i) the CFE Flank Document does not give 
any State Party the right to station (under Article IV, paragraph 5 of 
the Treaty) or temporarily deploy (under Article V, paragraphs 1 (B) 
and (C) of the Treaty) conventional arms and equipment limited by the 
Treaty on the territory of other States Parties to the Treaty without 
the freely expressed consent of the receiving State Party; (ii) the CFE 
Flank Document does not alter or abridge the right of any State Party 
under the Treaty to utilize fully its declared maximum levels for 
conventional armaments and equipment limited by the Treaty notified 
pursuant to Article VII of the Treaty; and (iii) the CFE Flank Document 
does not alter in any way the requirement for the freely expressed 
consent of all States Parties concerned in the exercise of any 
reallocations envisioned under Article IV, paragraph 3 of the CFE Flank 
Document.
    In connection with Condition (6), Application and Effectiveness of 
Senate Advice and Consent, in the course of extension of the period of 
provisional application of the CFE Flank Document or a change of a 
minor administrative or technical nature; (ii) secure the adoption of a 
new United States obligation under, or in relation to, the CFE Treaty 
or the CFE Flank Document, unless such obligation is solely of a minor 
administrative or technical nature; or (iii) secure the provision of 
assurances, or endorsement of a course of action or a diplomatic 
position, inconsistent with the principles and policies established 
under conditions (1), (2), and (3) of the resolution of advice and 
consent to ratification of the CFE Flank Document.
    In connection with Condition (7), Modifications of the CFE Flank 
Zone, any subsequent agreement to modify, revise, amend or alter the 
boundaries of the CFE flank zone, as delineated by the map entitled 
``Revised CFE Flank Zone'' submitted to the Senate on April 7, 1997, 
shall require the submission of such agreement to the Senate for its 
advice and consent to ratification, if such changes are not solely of a 
minor administrative or technical nature.
    In connection with Condition (9), Senate Prerogatives on 
Multilateralization of the ABM Treaty, I will submit to the Senate for 
advice and consent to ratification any international agreement (i) that 
would add one or more countries as States Parties to the ABM Treaty, or 
otherwise convert the ABM Treaty from a bilateral treaty to a 
multilateral treaty; or (ii) that would change the geographic scope or 
coverage of the ABM Treaty, or otherwise modify the meaning of the term 
``national territory'' as used in Article VI and Article IX of the ABM 
Treaty.
    In connection with Condition (11), Temporary deployments, the 
United States has informed all other States Parties to the Treaty that 
the United States (A) will continue to interpret the term ``temporary 
deployment,'' as used in the Treaty, to mean a deployment of severely 
limited duration measured in days or weeks or, at most, several months, 
but not years; (B) will pursue measures designed to ensure that any 
State Party seeking to utilize the temporary deployments provision of 
the Treaty will be required to furnish the Joint Consultative Group 
established by the Treaty with a statement of the purpose and intended 
duration of the deployment, together with a description of the object 
of verification and the location of origin and destination of the 
relevant conventional armaments and equipment limited by the Treaty; 
and (C) will vigorously reject any effort by a State Party to use the 
right of temporary deployment under the Treaty (i) to justify military 
deployments on a permanent basis; or (ii) to justify military 
deployments without the full and complete agreement of the State Party 
upon whose territory the armed forces or military equipment of another 
State Party are to be deployed.

                                         William J. Clinton
THE WHITE HOUSE,
May 14, 1997.
                                 ______
                                 

                 Presidential Message 36 (May 14, 1997)

TO THE SENATE OF THE UNITED STATES:

    I am gratified that the Senate has given its advice and consent to 
the ratification to the CFE Flank Document and I look forward to the 
entry into force of this important agreement. It will reaffirm the 
integrity of one of the CFE Treaty's core provisions and will 
facilitate progress on CFE adaptation and, thus, NATO enlargement, key 
elements for advancing United States and European security.
    I must, however, make clear my view of several of the Conditions 
attached to the resolution of advice and consent to ratification, 
including Conditions 2, 3, 4, 6, 7, 9 and 11. These Conditions all 
purport to direct the exercise of authorities entrusted exclusively to 
the President under our Constitution, including for the conduct of 
diplomacy and the implementation of treaties. The explicit limitation 
on diplomatic activities in Condition 3 is a particularly clear example 
of this point. As I wrote the Senate following approval of the Chemical 
Weapons Convention, a condition in a resolution of ratification cannot 
alter the allocation of authority and responsibility under the 
Constitution. I will, therefore, interpret the Conditions of concern in 
the resolution in a manner consistent with the responsibilities 
entrusted to me as President under the Constitution. Nevertheless, 
without prejudice to my Constitutional authorities, I will implement 
the Conditions in the resolution.
    Condition (9), which requires my certification that any agreement 
governing ABM Treaty succession will be submitted to the Senate for 
advice and consent, is an issue of particular concern not only because 
it addresses a matter reserved to the President under our Constitution, 
but also because it is substantively unrelated to the Senate's review 
of the CFE Flank Document. It is clearly within the President's 
authorities to determine the successor States to a treaty when the 
original Party dissolves, to make the adjustments required to 
accomplish such succession, and to enter into agreements for this 
purpose. Indeed, throughout our history the executive branch has made a 
large number of determinations concerning the succession of new States 
to the treaty rights and obligations of their predecessors. The ABM 
Succession MOU negotiated by the United States effectuated no 
substantive change in the ABM Treaty requiring Senate advice and 
consent. Nonetheless, in light of the exceptional history of the ABM 
Treaty and in view of my commitment to agree to seek Senate approval of 
the Demarcation Agreements associated with the ABM Treaty, I have, 
without prejudice to the legal principles involved, certified, 
consistent with Condition (9), that I will submit any agreement 
concluded on ABM Treaty succession to the Senate for advice and 
consent.

                                         William J. Clinton
THE WHITE HOUSE,
May 14, 1997.
                                 ______
                                 

Condition #9 of the Executive Report 105-1, Resolution of Ratification 
   for the Flank Document to the Conventional Armed Forces in Europe 
                                 Treaty

          (9) Senate prerogatives on multilateralization of the abm 
        treaty.--
                  (A) Findings.--The Senate makes the following 
                findings:
                          (i) Section 232 of the National Defense 
                        Authorization Act for Fiscal Year 1995 (Public 
                        Law 103-337) states that ``the United States 
                        shall not be bound by any international 
                        agreement entered into by the President that 
                        would substantively modify the ABM Treaty 
                        unless the agreement is entered pursuant to the 
                        treaty making power of the President under the 
                        Constitution''.
                          (ii) The conference report accompanying the 
                        National Defense Authorization Act for Fiscal 
                        Year 1997 (Public Law 104-201) states ``. . . 
                        the accord on ABM Treaty succession, 
                        tentatively agreed to by the administration, 
                        would constitute a substantive change to the 
                        ABM Treaty, which may only be entered into 
                        pursuant to the treaty making power of the 
                        President under the Constitution''.
                  (B) Certification required.--Prior to the deposit of 
                the United States instrument of ratification, the 
                President shall certify to the Senate that he will 
                submit for Senate advice and consent to ratification 
                any international agreement--
                          (i) that would add one or more countries as 
                        States Parties to the ABM Treaty, or otherwise 
                        convert the ABM Treaty from a bilateral treaty 
                        to a multilateral treaty; or
                          (ii) that would change the geographic scope 
                        or coverage of the ABM Treaty, or otherwise 
                        modify the meaning of the term ``national 
                        territory'' as used in Article VI and Article 
                        IX of the ABM Treaty.
                  (C) ABM treaty defined.--For the purposes of this 
                resolution, the term ``ABM Treaty'' means the Treaty 
                Between the United States of America and the Union of 
                Soviet Socialist Republics on the Limitation of Anti-
                Ballistic Missile Systems, signed in Moscow on May 26, 
                1972, with related protocol, signed in Moscow on July 
                3, 1974.
                                 ______
                                 
Condition 9: Senate prerogatives on multilateralization of the ABM 
        Treaty
    Condition (9) protects the Senate's constitutional prerogatives by 
requiring the President to agree that any agreement to multilateralize 
the 1972 Anti-Ballistic Missile Treaty would be submitted to the Senate 
for advice and consent since any such agreement would, by definition, 
substantively alter the rights and obligations of the United States and 
others under the ABM Treaty.
    This condition builds upon a clear and unambiguous legislative 
history. The Fiscal Year 1995 Defense Authorization Act requires that 
any agreement that ``substantively modifies'' the ABM Treaty must be 
submitted to the Senate for advice and consent to ratification. The 
conference report accompanying the fiscal year 1997 Defense 
Authorization Act states that any agreement to add signatories to the 
ABM Treaty would constitute a substantive change to the treaty 
requiring Senate advice and consent.
    The majority of the committee views multilateralization of the ABM 
Treaty as a substantive modification requiring Senate advice and 
consent for a variety of reasons. (This was the one condition with 
which questions were raised.) The committee noted with interest a June 
6, 1996 study by the American Law Division of the Library of Congress. 
While the study concludes that ``an apportionment of the rights and 
obligations of the USSR under the ABM Treaty to its successor states 
would not, in itself, seem to require Senate participation,'' it does 
not contemplate just how those rights and obligations are to be 
apportioned. Indeed, the study does not seem even to take into account 
the actual Memorandum of Understanding relating to ABM Treaty 
successorship.
    Accordingly, the sentence preceding the June 6, 1996, study's 
conclusion is highly relevant, stating that ``a multilateralization 
agreement could include matters that would alter the substance of the 
ABM Treaty and require Senate advice and consent.'' Thorough analysis 
of how the addition of new States Parties to the ABM Treaty would alter 
its functioning reveals a number of problems which must be addressed by 
the Senate.
    First, new Parties to the ABM Treaty cannot be added without 
specially-negotiated, limited rights, but there is no way to do this 
within the existing provisions of the treaty. Yet such is necessary if 
the United States does not want to entitle each new successor to an 
ABM-system and ABM test-ranges. Thus the multilateralization agreement 
must add or alter provisions in the current treaty to ensure that ABM 
capabilities on the territory of the Soviet Union are not multiplied.
    Second, multilateralization inevitably will change the amount of 
territory covered by the ABM Treaty. In so doing, it will also change 
the geographic scope and coverage of the ABM Treaty. Since several 
fundamental limitations in the treaty (such as location of ABM radars) 
are defined in terms of ``national territory,'' any change to this 
definition changes the basic limitation in the treaty. For example, 
Russia continues to operate large-phased array radars which used to be 
``on the periphery'' of the Soviet Union (as required by Article VI(b)) 
but which are now in Ukraine, Belarus, Latvia, and Kazakhstan. A new 
agreement would conflict with ABM periphery requirements if Russia (or 
another country) were suddenly able to build a new string of radars 
along its borders. But if Russia is forbidden to do this, then the 
agreement must necessarily ``grandfather'' Russia's continued owning 
and operating of radars in other countries. By providing Russia 
extraterritorial treaty-rights and a military presence in another 
country, this agreement would most certainly constitute a significant 
change to the treaty (and a major legal/political issue for countries 
which want Russian troops withdrawn from their territories).
    Further, if a country of the former Soviet Union opts not to join 
the multilateralization agreement, the committee is concerned to know 
whether they would be free (in the future) to develop ABM systems. If 
so, this too significantly alters the geographic coverage of the 
treaty.
    Third, multilateralization of the ABM Treaty cannot be done without 
permanently, and significantly, altering United States rights under the 
treaty. New Parties doubtless will be given an official say at the 
Standing Consultative Commission (SCC), which interprets and 
administers the ABM Treaty. Under the bilateral ABM Treaty, the United 
States may take actions as approved through bilateral agreements. Yet 
with multilateralization, the United States presumably will no longer 
have this ability. Expanding the bilateral consensus arrangement into a 
multilateral consensus process means that, in the future, one country 
(such as Belarus) could effectively block U.S. actions or demand U.S. 
concessions even if Russia and the others agreed with the United 
States. A second alternative would be to alter the SCC to operate by 
means of a majority vote. Yet, if this occurs the United States could 
find itself overruled on matters where currently it cannot be.
    The history of succession agreements to the various treaties 
concluded between the United States and the Soviet Union further 
supports the case for Senate consideration of any ABM successorship 
document. The United States has engaged in a case-by-case review of 
treaty successorship issues. In the one case of the INF Treaty, where 
the treaty carried a negative obligation--namely to not possess any 
intermediate-range nuclear missiles--the treaty could be 
multilateralized without Senate advice and consent. No treaty terms 
were altered and the United States incurred no modification or new 
treaty rights or obligations. Thus advice and consent was not 
necessary.
    Multilateralization of the START Treaty under the Lisbon Protocol, 
on the other hand, required Senate advice and consent. In this case, 
multilateralization had clear implications for the treaty's text and 
object and purpose. The Lisbon Protocol determined the extent to which 
countries other than Russia would be allowed to possess strategic 
nuclear weapons. Similarly, ratification of the Lisbon Protocol also 
effectively determined successorship questions to the Treaty on Non-
Proliferation of Nuclear Weapons (NPT). Under the protocol, Belarus, 
Kazakhstan, and Ukraine agreed to a legally-binding commitment to join 
the NPT as non-nuclear weapons states. Finally, the Senate specifically 
considered the question of multilateralization of the treaty on 
Conventional Armed Forces in Europe (CFE) under Condition (5) of the 
resolution of ratification for the CFE Treaty.
    Moreover, the ABM Treaty specifically provides that any amendment 
to the treaty be considered under Senate advice and consent procedures. 
Article 14 of the Treaty states that ``agreed amendments shall enter 
into force in accordance with the procedures governing the entry into 
force of this Treaty.'' In other words, An amendment is to be adopted 
through the ratification process.
    Under Article II, section 2, clause 2 of the Constitution, the 
Senate holds a co-equal treaty making power. John Jay made one of the 
most cogent arguments in this respect, noting that ``of course, 
treaties could be amended, but let us not forget that treaties are made 
not by only one of the contracting parties, but by both, and 
consequently that as the consent of both was essential to their 
formation at first, so must it ever afterwards be to alter * * * 
them.''

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