Clinton’s New,‘Broad Interpretation’ of A.B. M. Treaty Designed to Protect Al Gore, Not the American People

(Washington, D.C.): Periodically, some news item comes along that offers fresh insights
into the
depths of cynicism the Clinton-Gore Administration is prepared to plumb in the service of its
political agenda. The New York Times presents one of these in a front-page,
above-the-fold
article in today’s editions. It describes a new legal analysis — what might be called a “broad
interpretation” of the 1972 Anti-Ballistic Missile (ABM) Treaty — that has just been conjured up
by Administration lawyers for the purpose of affording Vice President Gore the cover he needs
on the question of deploying national missile defenses, without having to violate the ABM
Treaty that explicitly prohibits them.

According to the Times:

Administration lawyers have advised President Clinton that, in their view, he could
begin building the first piece of a national missile defense system without violating a
1972 arms control treaty with Russia, senior officials said….The lawyers’ findings
could allow work on a defense system to begin while giving Mr. Clinton and his
successor another year to decide whether to abrogate the treaty. The findings could
also give the United States more time to test its nascent anti-missile system and to
negotiate with Moscow and with Washington’s allies in hopes of averting a crisis in
arms control.

Asked today how the threshold for violating the treaty for most of Mr. Clinton’s
tenure — pouring concrete — could suddenly become the basis for a broader
interpretation permitting construction, a senior Pentagon official said, “Better
lawyers.”

What is most extraordinary is not that it took these “better lawyers” five months to
rationalize this flip-flop flim-flam. Still more stupefying is the fact that the Administration’s
crack attorneys apparently remain unable to explain on what basis they believe the ABM Treaty
could still be legally binding upon the United States. First, under international practice and
precedent, this “personal” (i.e., not “dispositive”) treaty had to have lapsed when the other party,
the USSR, became extinct. (For a detailed analysis of this point, see [Feith and Miron].)
Consequently, neither renegotiating or reinterpreting the ABM Treaty are advisable or necessary.

Second, for such time as the ABM Treaty was legally binding upon the U.S. and
the Soviet
Union, only the United States adhered to its prohibition on territorial ballistic missile defenses.
As is made clear by the following excerpts from a landmark essay by the CIA and DIA’s former
Senior Intelligence Officer William T. Lee, published in the April-June 2000 edition of the
journal Comparative Strategy, first the Soviet Union and now the Russians have
deployed such a
defense. It turns out the only missile defense the Kremlin opposes is ours.
Moscow’s
opposition, however, should not be a basis for either delaying by one more day the
deployment of
the most effective possible missile defenses — or for pretending that such a deployment is not
wholly incompatible with the terms of the obsolete, violated and defunct ABM Treaty.

Excerpts from

Comparative Strategy, Vol. 19 No. 2, April-June
2000

The ABM Treaty Was Dead on Arrival

By William T. Lee

* * *

According to several polls, some 70 percent of Americans do not know that they have no
protection from even one ballistic missile. Most likely, they also do not know the reason why: In
December 1993 President Clinton signed a directive to perpetuate their lack of protection from
hostile missiles by preserving the 1972 Anti-Ballistic Missile (ABM) Treaty at all costs.

Consequently the administration has terminated, or cut back to technology research, all
programs
inherited from President Reagan’s 1983 Strategic Defense Initiative that could protect the United
States from strategic (long-range) ballistic missiles. Engineering development has continued
only on systems designed to protect U.S. forces in the field from short-range missiles, which
would not be effective against strategic missiles.

* * *

Clinton’s 1993 directive stated that the U.S. objective was to control or prevent proliferation
of
ballistic missile and nuclear weapon technology beyond the United States, Russia, the United
Kingdom, France, and China by the Comprehensive Test Ban Treaty, and the so-called Missile
Technology Control Regime. In no small part because of the administration’s policies and
actions, proliferation control has failed, which belies a 1995 U.S. national intelligence estimate
(NIE) alleging that there would be no ballistic missile threat (except from Russia and China) to
the United States until 2010 or beyond.

* * *

In his zeal to observe the ABM Treaty prohibiting effective missile defenses, Clinton signed
the
National Missile Defense Act mandating U.S. ABM deployment but said he would not carry it
out.

Instead, the United States has gone hat-in-hand to Moscow to ask permission to defend the
United States by amending the ABM Treaty. As of this writing the Russian response has not
been encouraging, to say the least.

* * *

Prior to 1967 there was a consensus that the SA-5
could be a SAM/ABM, with the Hen Houses
as the battle-management radars. After 1967, however, the CIA argued that the SA-5 was only a
SAM, and that the Hen Houses provided only early warning of a missile attack. By about 1970
the majority agreed. Subsequently only a handful of Defense Intelligence Agency (DIA)
analysts, plus occasionally the Air Force and a few Department of Defense officials, made the
case for Soviet national ABM defenses based on the SA-5/SA-10 SAM/ABMs and the Hen
House/LPARs as battle-management radars.

The CIA relied almost exclusively on the “hard evidence” from U.S. technical collection
systems
despite the fact that such evidence was inconclusive and plagued by major “intelligence gaps.”
Now Russian sources have filled in most of the intelligence gaps, thus refuting the CIA’s
analysis on every critical issue.

* * *

From the mid-1950s until 1991 the Soviets followed a
two track program: ABM systems
designed by Kisun’ko and his successors to protect the apex of the party-state nomenklatura
at
Moscow with battle-management radars (Dog House, Cat House), from NIIDAR, and
SAM/ABM systems designed for nationwide deployment by Raspletin and Bunkin with
battle-management radars (Hen House, LPAR) from Mints’ RTI, which also designed the Pillbox
multi-functional radar in the ABM-3 system for Moscow. Although the SAM/ABMs could be
relocated fairly quickly, however, and could be deployed nationally at relatively low cost, the
battle-management radars were expensive and fixed.

* * *

Construction of the second-generation LPAR
battle-management radars began in 1972 as
negotiations on the ABM Treaty were completed. The U.S. delegation’s attempt to limit ABM
battle-management radars resulted in agreeing to construction of 18 such radars (article III),
which was precisely the number the Soviets needed for redundant coverage by both
first-generation Hen House and second-generation LPAR battle-management radars. The LPARs
provided more precise target tracking to enhance the effectiveness of SA-5/10 SAM/ABMs but
did little to improve early warning.

* * *

When the Soviet Empire went out with a whimper in
1991, about 10,000 SA-5/10 interceptor
missiles were operational at more than 250 complexes, and 15 of 18 planned battle-management
radars–nine Hen House and six LPARs–were operational.

* * *

Russia inherited most of the Soviet empire’s illegal
national ABM defenses. Although the Hen
Houses and LPARs located in the successor states created significant gaps in coverage, Russia
still controls 12 or 13 of those radars. Consequently, SAM/ABMs still defend most of the
Russian Federation from U.S. ICBMs, much of the SLBM threat, and Chinese missiles.
Scheduled completion of the LPAR in Belorus will restore complete threat coverage, except for
the gap left by the dismantled Krasnoyarsk LPAR. Granted, the Hen Houses are old, but the
United States has been operating similar radars for 40 years.

Despite its economic difficulties, Russia continued development and production of the
SA-10,
adding (in 1992-1993 and 1997) two models with new missiles and electronics and replacing
more than 1000 SA-5 missiles with late model SA-10s having greatly improved performance
against ballistic missiles of all ranges. Russia is protected by as at least as many (about 8500)
SAM/ABMs as in 1991, and they are more effective. No wonder Russia shows little concern for
its proliferation of missile and nuclear technology.

Even more impressively, Russia has begun flight-testing the fourth generation “S-400”
(“Triumph”) SAM/ABM designed not only to end the “absolute superiority” of air assault
demonstrated by the United States in the 1992 Gulf War and the 1999 Kosovo operation, but also
to improve Russia’s illegal ABM defenses against strategic ballistic missiles. The S-400 is
scheduled to begin deployment in 2000, more testimony to Russia’s commitment to maintaining
its national ABM defenses in violation of the ABM Treaty.

* * *

Moreover, development of the S-400 no doubt
benefitted greatly from the virtual end of
technology-transfer controls under the Clinton administration, because “its components are based
on the most advanced know-how in the field of radiolocation [i.e., radars], missile
manufacturing, microcircuitry and computing technology.” Not coincidentally, all reported
S-400 characteristics are compatible with the 1997 protocols to the ABM Treaty that the Clinton
administration proposed and signed to define the technical boundaries between “theater” and
“strategic” ABM systems. Once again the U.S. goose has been plucked largely at our own
behest.

* * *

But none of this evidence has caused the CIA to
review its positions on any of the issues. With
the demise of the Soviet Empire in 1991 the CIA’s performance has, if anything, gotten worse.
In late 1997 Congressman Curt Weldon posed a series of questions to the CIA concerning the
new evidence documenting Soviet/Russian national ABM defenses in total violation of the ABM
Treaty. The CIA’s response denied any knowledge of the new evidence in its files.

The CIA reported that in 1997 “the National Intelligence Officer for Strategic Programs and
Nuclear Proliferation sponsored a two-day conference to assess the status to Russian ballistic
missile defense. The review of current activity did not appear to indicate the need for a new NIE
at this time.” As of August 1999 there are no indications that the CIA, nor any other component
of our $28 billion (per year) intelligence community, officially has addressed the evidence, much
less reported it to Clinton administration policy makers or to the Congress.

* * *

As documented in The ABM Treaty
Charade, in 1967 when the United States began imploring
the Soviets to negotiate “arms control” agreements on strategic weapons, the Politburo believed
defending the Soviet Union from nuclear missiles was the right and proper thing to do. A recent
release from classified U.S. archives lends more insight into the issue.

* * *

Nevertheless, the United States will proceed on the
premise that the Soviets agreed that ABM
systems were destabilizing. By late 1967 the Soviets saw their opportunity: They could use U.S.
self-deception to negotiate a treaty banning national missile defenses but continue to develop and
deploy SAM/ABMs; and the United States very likely would not detect the violation.

The United States confirmed Soviet expectations, first deceiving itself and then buying
Soviet
deception elicited by U.S. hubris. As reported previously, the general staff designed their
negotiating positions to maximize their military advantage and also bought time to try to catch
up with the United States in ABM technology. Most U.S. negotiators did not understand it, but
that is simply the way the Soviet system worked.

* * *

Russian sources provide conclusive proof that Soviets
violated the ABM Treaty with massive
deployment of SA-5/10 SAM/ABM missile systems and Hen House/LPAR battle-management
radars. The Russian sources and the NIEs are consistent on all points of fact in the history of
Soviet ABM programs over four decades.

* * *

Russia is modernizing its illegal SAM/ABM because the Russian military realizes that
strategic
nuclear forces are the only military counter to the U.S. that they can afford. The Russians
understand that the side having both strategic offensive and defensive forces has a strategic
advantage over the side that relies only on offensive weapons. The Russians also understand that
advantage multiplies as offensive arsenals are reduced by the START agreements. But the U.S.
doesn’t get the message.

Through mid-1967 the Soviets repeatedly told the United States that they did not share our
views
that ABMs were “destabilizing.” But the United States refused to listen. So by 1968 the Soviets
realized that they could negotiate the ABM Treaty barring U.S. defenses but violate it with
impunity by continuing to develop and deploy SAM/ABMs, and they did so. Led by CIA, the
United States first deceived itself about Soviet ABM programs and then fell for the Soviet
deception. The problem with the treaty is not the legal technicality raised by the demise of the
Soviet empire but the fact that it was dead on arrival.

From 1967 on the CIA systematically violated the age-old rule that absence of evidence is
not
evidence of absence. The CIA did not have the evidence to conclude that the SA-5/10s were not
SAM/ABMs and trashed evidence contradicting its position. The CIA’s position that the Hen
House and LPAR radars were only for early warning was pure invention. The few people in DIA
and elsewhere who did not commit these errors have been vindicated.

Whether the CIA’s continued professed ignorance of the evidence in its files on total Soviet
and
Russian violation of the ABM Treaty is the product of incompetence, or is dictated by Clinton
administration policy, is unclear, but neither interpretation is complimentary. The same applies
to the other members of the U.S. “Intelligence community.”

The Clinton administration is holding the security of the United States and our allies from
ballistic-missile attack hostage to the myth that the Soviet Union negotiated the ABM Treaty in
good faith and that Russia continues to observe it. The United States should abrogate the Treaty
forthwith and protect the country from hostile ballistic missiles. We have the technology to do
so. Let us use it.