Critical Mass # 3: America Is Vulnerable Today For Policy, Not Legal Reasons

(Washington, D.C.): The case for defending America against missile attack took another
major
step forward this week as two experts on the subject demolished a central tenet of the opposition:
In articles appearing in the National Review and the Washington Times,
respectively, former
Deputy Assistant Secretary of Defense Douglas Feith and senior Heritage
Foundation official
Thomas Moore explain why the main impediment to the deployment of U.S.
anti-missile systems
— the 1972 Anti-Ballistic Missile Treaty — no longer has standing under international law.

This finding — supported by two impressive legal analyses, one prepared by Mr. Feith’s law
firm,
Feith and Zell, P.C., and, the other at the request of the Heritage Foundation, by the law firm of
Hunton and Williams — comes on the heels of the Rumsfeld Commission‘s
authoritative
conclusion that the Nation faces near-term and perhaps no-warning ballistic missile threats. href=”#N_1_”>⁽¹⁾
With the threat confirmed and the ABM Treaty no longer an obstacle, the last remaining question
can be quickly addressed: Will the United States persist in leaving its people vulnerable,
as a
matter of policy, to attack by missile-borne weapons of mass destruction?

Null and Void

Mr. Feith’s essay, entitled “Live Missiles and Dead Letters,” shows why the nature of the
original
1972 ABM Treaty makes simple succession of the treaty’s obligations to Russia and/or other
former Soviet states a legal impossibility. Reduced to its essence, the legal conclusion is as
follows:

“The United States entered into [the ABM Treaty] with a specific potential
adversary that had a specific character, specific resources and capabilities, and a
specific relationship with the United States. It did not enter the treaty with
‘whom
it may concern.’ It did not enter into it as an indestructible commitment: each party
had the right to withdraw from the agreement upon six months’ notice. International
law does not assume that such a treaty’s aims can be fulfilled, in the event of one
party’s extinction, by whatever state or states may happen to arise on the dead party’s
territory.

“Furthermore, the newly independent states that arose on the USSR’s
territory jointly declared at Minsk on December 8, 1991, that none of them
preserved the legal personality of the Soviet Union, which ‘as the subject of
international law and geopolitical reality no longer exists.’ The U.S.
Government promptly thereafter acknowledged that the Soviet Union had
dissolved.” (Emphasis added throughout.)

A ‘Second Opinion’

As Mr. Moore notes in his op.ed. article (see the attached),
a similar conclusion was reached in a
Memorandum of Law prepared by a second team of attorneys specializing in international law at
the prestigious Washington firm of Hunton & Williams. href=”#N_2_”>⁽²⁾ Importantly, “The best defense is a
missile defense” observes that the Clinton Administration has, by its own
actions, confirmed
these findings:

“The Clinton administration is so wedded to the ABM treaty that it is
attempting to solve the problem of no legally valid successor by creating a new
ABM treaty. An agreement signed last year in New York would convert the now
defunct ABM treaty into a new, multi-lateral agreement with Russia, Ukraine, Belarus
and Kazakhstan. The administration’s new ABM agreement would impose new
restrictions on the most promising theater missile defenses as well.

“Article II, Section 2 of the U.S. Constitution and other laws require that this
new ABM treaty come before the Senate for its advice and consent. But the
Clinton administration is quietly implementing it without the Senate’s
approval. This is official misconduct writ large. If allowed to get away with this
breach of the Constitution and statute law, the White House would lock us into
vulnerability to ballistic missiles for the foreseeable future.” (Emphasis added.)

The Bottom Line

Tom Moore’s admonition is particularly salient in light of the prospect that the
Clinton team will
try to use the upcoming U.S.-Russian summit in Moscow and/or the September convening
of the ABM Treaty’s five-year review in Geneva to “lock in” further the United States to
a
treaty that no longer has legal standing and certainly no longer makes any strategic sense.
The
Congress must not permit such a travesty of the Constitution’s duly appointed processes
and its obligation for the federal government to “provide for the common defense.”

Toward this end, the Senate and House should adopt the Cochran-Inouye
bill — legislation
that would make it the “policy of the United States government to deploy effective national
missile defenses as soon a technologically possible.”⁽³⁾ This
measure would be an important first
step toward ending the tyranny of a treaty that has morphed into a prescription for
permanent,
unilateral U.S. vulnerability to all manner of threats from weapons of mass destruction — and the
tyranny of an Administration that is bent on imposing, through fiat and other executive actions,
indefensible curbs on vital American military programs.

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1. See the following Center products:
Critical Mass # 2: Senator Lott, Rumsfeld
Commission Add Fresh Impetus to Case for Beginning Deployment of Missile
Defenses (No.
98-D 133, 15 July 1998) and Wall Street Journal Lauds Rumsfeld Commission
Warning On
Missile Threat; Reiterates Call for Aegis Option in Response ( href=”index.jsp?section=papers&code=98-P_134″>No. 98-P 134, 16 July 1998).

2. This study can be accessed on the Heritage Internet site at:
href=”https://www.heritage.org/heritage/nationalsecurity/legalbrief/legalbrief.html”>www.heritage.org/he
ritage/nationalsecurity/legalbrief/legalbrief.html. (Please note that
if you “click” on this site, you will leave the Center for Security Policy’s site.)

3. See Senate Should Vote to Defend America ‘As
Soon As Technologically Possible’ (No. 98-D 79, 6
May 1998) and Shame, Shame: By One Vote, Minority of Senators Perpetuate
America’s Vulnerability to Missile Attack (No. 98-D
84, 14 May 1998).