Message to Albright, Primakov: New Legal Analysis Establishes That The A.B.M. Treaty Died with the U.S.S.R.

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Definitive Study Shows Russians Have No Veto Over Defending U.S.

(Washington, D.C.): On Wednesday, Secretary of Defense William Cohen
indicated that the
United States would no longer permit the 1972 Anti-Ballistic Missile (ABM) Treaty to preclude
the deployment of limited missile defenses to defend the U.S. homeland. Yesterday, however,
according to the Washington Times, Robert Bell — the top
National Security Council staff
member responsible for arms control — told reporters: “All issues [involving the national missile
defense plans] must, of course, be addressed within the context of the ABM Treaty.” Bell called
the Treaty the “cornerstone of strategic stability.” He also is quoted by the Times as
saying that
“Any decision to withdraw or change the treaty is ‘getting way ahead.'”

It is bad enough that key agencies of the U.S. government seem to be at cross-purposes with
respect to so fundamental a question as whether Russia will be allowed to veto necessary
American defense programs. Worse yet is the prospect that Secretary of State Madeleine
Albright is headed to Moscow this weekend for talks that will give the Kremlin an opportunity to
exercise that veto. All indications are that the Russians will tell the Secretary that they
have
no intention of amending the ABM Treaty so as to permit the United States
to deploy a
territorial defense prohibited by that accord.

These developments put into sharp relief a threshold question: Is the United States
currently
bound under international law by the constraints of the 1972 Anti-Ballistic Missile
Treaty?

According to a major new legal analysis, performed by former Deputy Assistant
Secretary of
Defense Douglas J. Feith and George Miron and released today by
the Center for Security
Policy, the answer is indisputably “No.” In fact, the Feith-Miron memorandum
demonstrates
convincingly as a matter of international law, precedent and practice, the ABM Treaty
lapsed
with the extinction of the Soviet Union in 1991. In the intervening period — and in the
absence
of Senate advice and consent to any agreement that would give the ABM Treaty renewed legal
standing (e.g., the sort of succession agreement signed in September 1997, but not yet submitted
to the Senate for its approval ¹), the Treaty can only be said
to have been observed as a matter of
U.S. policy. Consequently, the United States is under no obligation
and should not feel
compelled to seek the assent of Russia (to say nothing of other nations, like China) to begin
deploying effective anti-missile defenses at the earliest possible moment. A decision to
do so
should be taken without further delay.

A summary of the Feith-Miron analysis is attached.

¹In an important op.ed. article published in today’s Wall Street
Journal, Senate Foreign
Relations Committee Chairman Jesse Helms (R-NC) has properly thrown down the gauntlet to
the Administration over its efforts to implement the so-called succession and demarkation
agreements of September 1997 without submitting them for Senate advice and consent. Sen.
Helms’ decision to move forward with hearings on the ABM Treaty and to give the
Administration a deadline of 1 June for action on these accords is entirely consistent with a central
constitutional principle underscored by the Feith-Miron legal analysis, namely the impermissibility
of law-making by presidential action alone.