Chairman Helms Endorses Center’s Feith-Miron Analysis Showing A.B.M. Treaty to Be Defunct, Seeks Clinton Response

(Washington, D.C.): On 20 January, a top Clinton Administration official for the first time
acknowledged what has become increasingly obvious to all but the most unreconstructed arms
control ideologues. At a Pentagon briefing, Secretary of Defense William Cohen confirmed that
there is an imminent ballistic missile danger to this country. He then told the
American
people that they would have to have a limited national missile defenses (NMD) to
protect
them against such a threat. ¹

Secretary Cohen even went so far as to indicate that the 1972 Anti-Ballistic Missile
(ABM)
Treaty would have to be changed in order to permit this defensive deployment. In
response
to a question, he averred that, if the Russians refused to agree to make such changes, the United
States could always withdraw from that Treaty.

‘What the Secretary Meant To Say’

Within hours, however, Mr. Cohen had been effectively repudiated on all three scores. On
the
record and not-for-attribution comments by, among others, the President’s National
Security
Advisor, Samuel Berger, by one of his senior subordinates, Robert
Bell, and by Secretary of
State Madeleine Albright made clear that the Secretary of Defense had deviated from
the
Administration’s abiding party line on missile defense.

According to these officials, there really is no threat that would justify making a decision to
deploy missile defenses at this time. Actually, that decision will not occur until at least June 2000.
And they insist that the ABM Treaty — which prohibited the United States from having a
territorial defense against ballistic missile attack — remains “a cornerstone of strategic stability.”
In other words, if left to its own devices, hell will experience a cold day before the Clinton
Administration fields anything to protect the American people against ballistic missile attack.

Although largely obscured by the press interest expressed in Secretary Cohen’s apostasy about
deploying anti-missile systems, the practical upshot of the programmatic actions the
Administration is taking in this area will be to postpone by years the availability of ballistic
missile defenses and to diminish the capability of any that might ultimately be deployed.

For example, while much was made of the Clinton team’s decision to add $6.6 billion to the
“out-years” budget for missile defense, its latest plan will actually: delay by at least two years (to
2005) the initial operational capability of its preferred national missile defense system; delay until
two years after that (at the earliest 2007) the availability of promising theater missile defense
systems — that were supposed to be available faster and enjoy higher priority than NMD
capabilities; and eviscerate the test program needed to bring the low-altitude Space-based Infrared
Satellite (SBIRS) missile-tracking system online.

‘Cornerstone of Strategic Stability’

Arguably, even more insidious has been the Administration’s bait-and-switch on the ABM
Treaty.
It appears that, contrary to Mr. Cohen’s suggestion, Mrs. Albright has gone out of her way to
lower expectations in Russia — and even in China — that the United States will actually press
ahead with deployments of needed anti-missile systems. To the contrary, in the worst tradition of
Foggy Bottom “clientitis” (the State Department phenomenon of seeing U.S. interests primarily
through the prism of foreign governments, or “clients”), the Secretary of State has assiduously
promoted the idea that the ABM Treaty must take precedence over defending America.

The question must be asked: What ABM Treaty?

Common sense tells us that when a state becomes extinct — as the Soviet Union did eight
years
ago — its political treaties and relationships end. Now, thanks to a superb legal analysis prepared
by former Deputy Assistant Secretary of Defense Douglas J. Feith and former Justice Department
attorney George Miron, it has been clearly established that this same principle applies under
international law and practice specifically to the Anti-Ballistic Missile Treaty. ² Since the ABM
Treaty has lapsed, the United States no longer has any obligation to continue to constrain,
dumb-down or otherwise deny itself technologies that could prevent ballistic missiles from
destroying American communities.

Enter Chairman Helms

Importantly, the Feith-Miron Memorandum of Law was delivered to President Clinton last
week
by Senate Foreign Relations Committee Chairman Jesse Helms, Republican of North Carolina. In
his cover letter, Senator Helms described this memorandum as “the most convincing and
exhaustive legal analysis done on the subject to date, and obviously I agree with it.”
The
Chairman requested that “If your Administration has evidence contradicting the Feith-Miron
memorandum, I respectfully request that you share it with [the] Committee as soon as possible.

This has been made necessary since, as Sen. Helms put it:

“…The Administration’s arguments on this subject have been inconsistent and
contradictory to date. For months, the Administration was unable to tell the Senate
who was our treaty partner [following the USSR’s demise]. Then, it was abruptly
declared that our treaty partner is, in fact, the Russian Federation. But the
Administration has provided the Senate with scant evidence to back up this claim, or to
support the conclusion that the ABM Treaty remains in force (despite the dissolution of
the Soviet Union).”

The Bottom Line

As it happens, Chairman Helm’s missive and the Feith-Miron analysis it endorses come at a
most
propitious time. The Senate and House are expected to take up bipartisan legislation within a
week or two that would make it U.S. policy to deploy a national missile defense, in the words of
the Senate version — sponsored by Republican Senator Thad Cochran of
Mississippi and
Democratic Senator Daniel Inouye of Hawaii — “as soon as technologically
possible.” The
Clinton Administration has formally announced its opposition to the Cochran-Inouye
“National
Missile Defense Act of 1999,” largely because of that bill’s implication that defending
America
can no longer be subordinated to the Administration’s determination to adhere to an expired
treaty.

With the case now establish that the ABM Treaty has lapsed, the argument for legislators to
support the deployment of missile defense as soon as technology allows is overwhelming. So
should be the votes for doing so.

Chairman Helms is also to be commended for his decision to press ahead with
hearings “in
coming weeks” to consider additional ABM agreements that would, if ratified, create a
new
ABM Treaty with a geographic scope and coverage different from the original 1972 accord and,
thereby, create a new ban on U.S. national missile defenses. As Sen. Helms
points out to the
President, these additional agreements were signed in September 1997, ³ but have yet to be
submitted to the Senate for its advice and consent — despite a formal commitment made by
President Clinton on 14 May 1997 to do just that. Obviously, until now, the Administration has
been in no hurry to bring the 1997 accords before the Senate, confident that the ABM Treaty
would remain in force in the interval.

The definitive Feith-Miron conclusion that the only basis upon which an Anti-Ballistic Missile
Treaty could legally constrain U.S. missile defense programs and technology would be for the
Senate to approve new Anti-Ballistic Missile accords should change that
calculation. ⁴
Henceforth, if the Clinton team remains committed to perpetuating such constraints —
notwithstanding Secretary Cohen’s stated position to the contrary — it will have to halt
its “slow
roll” of the “world’s greatest deliberative body.” Should the Administration finally
submit the
1997 treaties and permit the Senate work its will, it may be possible, at long last, to remove the
most serious remaining impediment to implementing a U.S. policy of deploying effective
anti-missile defenses: defective, outdated and ill-conceived arms control agreements.

¹ See the Center’s Decision Brief entitled
The Clinton-Cohen Missile Defense Initiative: Two
Steps Forward, Three Steps Back? (No. 99-D 10,
20 January 1999).

² See Message to Albright, Primakov: New Legal
Analysis Establishes that the A.B.M. Treaty
Died with the Soviet Union (No. 99-P 11, 22
January 1999). Copies of the full study may be
obtained by contacting the Center for Security Policy.

³ See A Day that Will Live in Infamy:
25^th Anniversary of the A.B.M. Treaty’s Ratification
Should be Its Last (No. 97-D 44, 29
September 1997).

⁴ This conclusion is also supported by a legal analysis prepared for
The Heritage Foundation by
the law firm of Hunton & Williams and by a number of independent legal scholars and
practitioners.