Kissinger, Legal Scholars Wrap Up Pivotal Hearings on the A.B.M. Treaty; Establish Need, Legal Right to Defend America

(Washington, D.C.): The Senate Foreign Relations Committee took testimony today
concerning
one of the most important national security issues of our time — the Nation’s abject vulnerability
to ballistic missile attack — from one of this era’s most influential policy practitioners, former
Secretary of State Henry Kissinger. Dr. Kissinger made clear his view that
the United States’
supreme interests are jeopardized by the 1972 Anti-Ballistic Missile (ABM) Treaty, a
bilateral accord forged with the Soviet Union during his service with the Nixon Administration.

This session was preceded by a no-less-noteworthy hearing held yesterday at which the
Chairman of the Board of the Center for Security Policy, former Deputy Assistant
Secretary of
Defense Douglas Feith, and other legal experts established that America is no
longer legally
bound to adhere to this expired treaty. Taken together with the results of the previous
five
hearings in this series, the Senate is now armed with ample grounds for rejecting further
efforts to renegotiate or otherwise breathe new life into the ABM Treaty and for pursuing
as aggressively as possible the deployment of effective, global anti-missile defenses.

Highlights of the past two days’ hearings included the following:

Dr. Kissinger: The Strategic Imperative to Defend America

On the bankruptcy of Mutual Assured Destruction

• “I do not believe [the doctrine of Mutually Assured Destruction (MAD)] could
  work in a
  world of many nuclear powers.”

• The continued observance of the 1972 ABM Treaty has been a “deliberate policy choice.”
  If
  the U.S. is attacked, “how could such a government explain to the American people” that we
  chose not to defend ourselves?

• It would be “difficult for any arms control system to reduce [potential damage
  from a
  nuclear exchange] to [levels] that are acceptable.” Even if you could get to START III
  levels, that would still be “morally unbearable.”

• “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.”

On the ABM Treaty

• “…the [ABM] Treaty was signed with an eye to an environment that simply does
  not
  exist today.”

• The “ABM Treaty must not be allowed to stand in the way of national missile
  defense.”

• “I am not in favor of attaching new significance to the ABM
  Treaty.”

• “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 would not let it stand in
  our
  way.”

On the Need to Act Now

• “I believe 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.”

• “I believe that we should proceed with the development of the best technology for the
  defense
  of the United States.”

• “I believe we should create a national missile defense as soon as it is possible to do so” with
  a
  system upon which there is a consensus.

On Giving Russia a Veto Over U.S. Missile Defenses

• Negotiations with Russia, on such issues as nuclear reductions, should not be permitted to
  postpone the decision to proceed with an anti-missile defense.

• “I am more concerned about third countries that I am about Russia.”

On the question of Developing only Theater Missile Defenses

• “[It] isn’t natural for us to protect our allies more than ourselves.”

On the Spread of Ballistic Missiles and the Introduction of Defenses

• “One of the reasons ballistic missiles are so attractive to so many countries is that
  there
  are currently no defenses against them….History teaches us that weakness is
  provocative
  and, in a real sense, the absence of missile defense provokes others into seeking such
  weapons.”

Legal Analysis

The Center for Security Policy takes particular pride in the appearance before the Foreign
Relations Committee yesterday of Mr. Feith and George Miron, a highly
regarded attorney who
served previously in the Department of Justice in connection with a comprehensive analysis they
prepared for the Center concerning the legal status of the ABM Treaty. The Feith-Miron study is
entitled Memorandum of Law: Did the ABM Treaty of 1972 Remain in Force After the
USSR
ceased to exist in December 1991 & Did It Become a Treaty Between the United States and
the
Russian Federation? 1 Messrs. Feith and Miron
were joined at the witness table by David
Rivkin and Lee Casey of the law firm of Hunton & Williams,
who last year authored at the
request of the Heritage Foundation a legal memorandum that arrived at similar conclusions.

Specifically, both of these studies found that, in the absence of Senate advice and consent to
any
agreement that would give the ABM Treaty renewed legal standing (e.g., its approval of the
“succession agreement” signed with Russia, Ukraine and Belarus in September 1997 — an
agreement that has yet to be submitted to the Senate), the Treaty legally can only be said
to
have been observed since 1991 as a matter of U.S. policy. As Mr. Feith
stated at Tuesday’s
hearing, “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 practical conclusion that must then be drawn from these analyses, according to Mr.
Feith, is
that the Clinton Administration’s Multilateralization Memorandum of Understanding “is
not simply an amendment of an existing treaty, but a new treaty. If approved, it would
create the ABM Treaty of 1999. If not approved, it would preserve the status quo – that
is,
there would continue to be no binding international agreement prohibiting the United States from
deploying a defense against ballistic missiles.”

Interestingly, under close questioning by the acting Chairman, Sen. John Ashcroft (R-MO),
the
one witness who opposed these conclusions, Professor Michael Glennon of
the University of
California, Davis School of Law, conceded that the Clinton Administration has offered a legal
conclusion that the ABM Treaty remains in force without providing a legal theory for how that
could be. In fact, the Administration has offered two, mutually inconsistent arguments for their
position — neither of which stand up to the scrutiny to which they were subjected by
the Center
for Security Policy and Heritage Foundation legal teams.

The Bottom Line

Chairman Jesse Helms (R-NC), who called these hearings, and Sen.
Ashcroft who conducted
yesterday’s important session deserve credit for convening the most important set of
deliberations on this accord since it was approved by the Senate in 1972. In the wake of these
hearings and final congressional action last week on the Missile Defense Act, 3 the time has now
come for the Congress to take steps that will begin actually to protect the American people
against missile attack and end U.S. fealty to a treaty that prevents such steps.

– 30 –

1 See the Center’s Press Release entitled
Definitive Study Shows Russians Have No Veto Over
Defending U.S. (No. 99-P 11, 22 January 1999).

2 Excerpts of Mr. Feith’s and Mr. Miron’s statement can be found on
the Center’s web site.

3 See Over to You, Mr. President: Congress Enacts
Policy to Defend America; If Clinton
Doesn’t Veto, Will Hill Implement? (No. 99-D 61,
21 May 1999).