The ABM Treaty: Dead or Alive?

On December 13, 2001, President George W. Bush gave notice that the United States was going to withdraw from the ABM Treaty in six months. Is this a correct decision which should go unchallenged? I'm proposing here a decision tree. President Bush should have gone through a decision-making process like this before announcing withdrawal, but obviously, he didn't. There are ten questions, to be answered in order. If the answer to any question is"no," then the process halts and withdrawal should not occur. The rest of the questions are then irrelevant. If the answer is"yes," then you proceed to the following question. Only if the answer to all ten of the questions is"yes" do you proceed to withdraw from the treaty. The questions are as follows:

1. Does a President of the United States have the Constitutional power to terminate a treaty without the advice and consent of the Senate or the approval of the Congress?
2. Has the United States satisfied the necessary conditions for withdrawal from the ABM Treaty as specified in the Treaty itself?
3. Is it necessary to withdraw from the ABM Treaty at this time if we want to pursue the development of ballistic missile defenses?
4. Are effective defenses against ballistic missiles accompanied by likely countermeasures and decoys technologically achievable in the foreseeable future?
5. Is there a ballistic missile threat which justifies the development of ballistic missile defenses?
6. Are the envisioned ballistic missile defenses survivable against preemptive attack by entities possessing the technology for both intercontinental ballistic missiles and weapons of mass destruction?
7. Are ballistic missile defenses more effective and less costly than other means of dealing with the existing and forecast ballistic missile threats (such as buying them out)?
8. Taking into account the likely responses of both our allies and our adversaries to our withdrawal from the ABM Treaty and development of ballistic missile defenses, is the net effect of such actions such as to enhance our national security?
9. Considering the fact that ballistic missile defenses would be useless against aircraft, small boats, rental trucks, and all the other delivery means that the CIA and DOD say are far more likely to be used against us than missiles, and that withdrawal from the ABM Treaty will increase the fear and hatred which makes us the target of terrorists, is the potential utility of defenses against hypothetical rogue nation missiles sufficient to offset the increase in the terrorist threat they will cause?
10. Is it in the interest of the people of the United States of America to withdraw from the ABM Treaty?

These ten questions are interrelated, of course, but each of them can be addressed independently of the others. For President George W. Bush's actions to be appropriate, the answer to all ten questions would have to be"Yes." For the members of Congress to be justified in continuing their inaction with respect to the President's planned withdrawal from the ABM Treaty, the answer to all ten questions would have to be"Yes." If the answer to even one of the above ten questions is"No," then Congress has to challenge the President's actions, and (if necessary) take him to court.

Ironically, in my considered opinion, the answer to every single one of the ten questions is"NO."

In previous articles, I have explained why"No" is the proper answer to each of the last seven questions. These questions are addressed in some detail on our web site www.rmbowman.com/ssn and in past issues of Space & Security News as well as my 1984 book Star Wars: Defense or Death Star. (And no, the answers haven't changed.)

The purpose of this article is to address the first three questions.

(1) Constitutionality of Unilateral Treaty Withdrawal by the President

The Congress is acting like there's nothing it can do about President Bush's decision to withdraw from the ABM Treaty. But that's only the members cowardice talking. They are afraid to challenge a popular wartime president.

The ABM Treaty is important. I believe that its demise will greatly harm our national security. But there's even more at stake. Letting Bush get away with this will destroy the balance of powers carefully crafted in our Constitution. The President pretends that the Constitution gives him the sole responsibility for conducting foreign policy. It does no such thing. It assigns the president only three duties with respect to foreign policy: (1) to be Commander-in-Chief of the armed forces, (2) to make treaties, provided two-thirds of the Senators present concur, and (3) to appoint ambassadors. The latter two powers are subject to the"advice and consent of the Senate," but only the power to make treaties is constrained additionally by the requirement to obtain the concurrence of two-thirds of the Senators present. The president is given no power whatsoever to"make foreign policy." As Judge Oliver Gasch of the District of Columbia District Court said in 1979,"While the President may be the sole organ of communication with foreign governments, he is clearly not the sole maker of foreign policy. In short, the conduct of foreign relations is not a plenary executive power." Judge Gasch went on to say,"He alone cannot effect the repeal of a law of the land which was formed by joint action of the executive and legislative branches, whether that law be a statute or a treaty."

The Constitution itself doesn't mention withdrawal from treaties. But historical precedents are heavily on the side of congressional involvement. The first time the United States withdrew from a treaty was in 1798, when a pair of treaties with France were ended by an act passed by a majority of both houses of Congress and then signed by President John Adams. Since then, three quarters of the treaty terminations have been accomplished jointly by Congress and the president. Sometimes the president would ask Congress to make the decision by a vote of both houses. On other occasions the president would ask the Senate for their"advice and consent." A number of historical precedents are described in an article by Walter C. Clemens, Jr. (professor of political science at Boston University) in the November/December 2001 issue of the Bulletin of Atomic Scientists.

Those defending unilateral presidential action point to President Jimmy Carter's termination of the mutual defense treaty with Taiwan, an action he took in order to recognize the People's Republic of China. Twenty-four members of Congress sued the president in an attempt to stop his withdrawal from the treaty. The case eventually wound up in the Supreme Court, which refused to order Carter to desist. But it is important to recognize that the Supreme Court never decided the Constitutional case on its merits. It simply refused to act because Congress as a body had not yet taken action.

Goldwater vs. Carter had first gone to Judge Gasch, who ruled against the president. He ruled that"The great majority of the historical precedents involve some form of mutual action, whereby the President's notice of termination receives the affirmative approval of the Senate or the entire Congress." As a result he concluded that"the President's notice of termination must receive the approval of two-thirds of the United States Senate or a majority of both houses of Congress for it to be effective under our Constitution."

Carter, however, appealed, and the Court of Appeals reversed the Circuit Court's decision. They noted that the Senate had not"since the giving of the notice of termination, purported to take any final or decisive action with respect to it, either by way of approval or disapproval." Chief Judge Wright and Judge Tamm concluded that"if Congress wants to participate directly in a treaty termination, it can find the means to do so." There was a clear inference that if Congress or the Senate had taken clear action, their decision would have been different. The other justice, Judge McKinnon filed an impassioned dissent. He felt that the District Court decision should have been upheld even though Congress as a body had not acted. He quoted Chief Justice Marshall's statement that a treaty is"to be regarded in courts of justice as equivalent to an act of the legislature." (And of course a president may not do away with a law.)

Finally, the Supreme Court ordered the judgment of the Court of Appeals to be vacated and the case to be remanded to the District Court with directions to dismiss the complaint. Note that they did not uphold the Court of Appeals, which sided with Carter. Four of the justices (Burger, Rehnquist, Stewart, and Stevens) said that it was a political issue that should be decided between the President and the Congress. Justice Powell disagreed but voted with them because he considered the case not"ripe" for judgment since Congress had not officially taken a position.

The net result was to allow Carter to withdraw from the treaty, but it is important to note that the Supreme Court never ruled on the merits of the case. They by no means said that a president has the unilateral power to end a treaty. They were just unwilling to do what they considered Congress's work for them. (And, of course, a majority of those on the Court agreed with Carter's desire to recognize China, and therefore were probably happy to find a way not to stop him.) A more detailed exposition of the journey of Goldwater vs. Carter through the courts was written by Peter Weiss, president of the Lawyers' Committee on Nuclear Policy.

Ironically, the challenge to Carter came from the conservatives, three of whom are still in Congress -- Orrin Hatch, Jesse Helms, and Strom Thurmond. This is what they had to say at the time: allowing Carter to withdraw from the treaty without the permission and participation of Congress would be"a dangerous precedent for executive usurpation of Congress's constitutionally based powers." If they believed that then, why do they not believe the same is true of Bush's withdrawal from the ABM Treaty? (Of course, they hate the ABM Treaty and the limits it places on US absolute military supremacy, but that shouldn't affect the constitutional issue. Bruce Ackerman, professor of constitutional law at Yale, raised the issue in an August 29, 2001 op-ed piece in the New York Times. He called for these conservative Republicans to join with Democrats in passing a joint resolution declaring that Congress claims the constitutional right to have a say in any treaty withdrawal.)

It would seem that the clear intent of the framers of the Constitution, the historical precedent, the judicial record of Goldwater vs. Carter, and common sense all agree that no president has the authority to withdraw from a treaty without the consent of Congress. The answer to question (1) is"No."

(2) Satisfaction of Withdrawal Conditions

The ABM Treaty of 1972 provides for withdrawal in Article XV, paragraph 2, which states that either nation may withdraw giving six months notice"if extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests." It is the responsibility of the U.S. government (and therefore of President Bush) to state what the extraordinary events are, to demonstrate that they are related to the subject matter of the treaty, and that they jeopardize the supreme interests of the United States. He cannot. There have been no such events. In its diplomatic notes to Russia, Belarus, Kazakhstan, and the Ukraine announcing its intention to withdraw, the U.S. made vague references to states and non-state entities seeking to acquire weapons of mass destruction. It also noted that a number of (unnamed) states are developing ballistic missiles. Finally, it concluded that"These events pose a direct threat to the territory and security of the Unites States and jeopardize its supreme interests." This is patently untrue. The only nations capable of hitting the United States with ballistic missiles are Russia, China, France, and the United Kingdom. This situation hasn't changed in decades and is unlikely to change for decades to come.

The only thing remotely like an"extraordinary event" that has happened is that several years ago North Korea tested a ballistic missile, firing it across the tip of Japan into the Pacific Ocean. The test missile was nothing like an ICBM. If the test program had continued and led to the successful development of a missile, it would have been incapable of reaching any populated area in the United States. (An improved missile based on that design could theoretically reach a tiny unmanned atoll which belongs to the State of Hawaii, but is 3,000 miles NW of Oahu.) But the program was halted, thanks to negotiations by the Clinton Administration, and has not been restarted.

There have been extraordinary events (9/11 comes to mind), and some of them threaten the security of the United States. But none of them involve ballistic missiles, and none of them are in any way related to the subject matter of the ABM Treaty.

Bush's attempt to withdraw from the ABM Treaty not only violates the Constitution. It also violates international law and Article XV of the ABM Treaty itself.

Ironically, the withdrawal requirements of Article XV were put in at the insistence of the United States to tie the hands of the Soviets, so that they could not withdraw without good reason. In 1972 we did not trust the Russians. Now that we are becoming the first nation to withdraw from a treaty since World War II, the question now is,"Will any nation ever trust the United States again?" If we allow Bush to have his way, I'm afraid the answer to this, like the answer to question (2), will be"No."

(3) Necessity of Withdrawal to Pursue NMD

According to Lisbeth Gronlund, senior scientist at the Union of Concerned Scientists, none of the tests that the Pentagon is ready to perform for development of missile defenses are constrained by the ABM Treaty. As a matter of fact, it will be several years before the program requires tests prohibited by the Treaty. John Rhinelander, an international lawyer who actually was involved in advising our negotiators for SALT I and the ABM Treaty, agrees.

The Bush Administration says it needs to get rid of the ABM Treaty so it can test the SPY radar on the Aegis cruisers against ICBMs and so that it can build a new test facility at Fort Greely, Alaska.

The Aegis radar system is designed to work against aircraft fairly close to the cruiser. As Gronlund has pointed out, the Defense Department itself has already concluded that the Aegis radar is not suitable for the missile defense mission. But that was in 1998 and 1999, when the mission (in the Clinton Administration) was tracking incoming warheads. The Bush team want to see if it can be used to track outgoing boosters in a boost-phase intercept scheme. But you don't have to run a special test to find that out. As Rhinelander points out, all you have to do is station the cruiser 300 miles off the coast of Florida and see how well it can track satellite launchers. The Aegis tests are not designed to help develop a missile defense system, but to violate the ABM Treaty.

As things stand now, the Fort Greely site would violate the ABM Treaty, but all the Administration would have to do, according to Rhinelander, is notify Russia that, pursuant to Article IV of the Treaty and paragraph 5 of the 1978 agreed statement, it intends to establish a new test range in Alaska. That way the Fort Greely site becomes perfectly legal.

The ABM Treaty specifically prohibits the development of mobile ABM systems, and Bush is pushing for laser weapons on 747 aircraft, interceptors on those Aegis cruisers, and space-based laser battle stations, all of which will violate the Treaty. But it will be several years before their development gets to the stage where the ABM Treaty becomes a barrier.

The truth of the matter is that even if one wanted to develop a missile defense system (and I don't), one doesn't have to withdraw from the Treaty now -- probably not until after the 2004 elections. But of course Bush doesn't want to wait. He wants to (as Rhinelander puts it) throw some"red meat" to the right wing. He campaigned on a platform of getting rid of the ABM Treaty, and he intends to deliver while the post-9/11 political climate lasts -- and national security be damned. The answer to question (3) is"No."

Why Do the Conservatives Hate the ABM Treaty?

So why do the conservatives hate this Treaty that was negotiated by one of their own (Richard Nixon)? The answer is that it stands in the way of a"Star Wars" missile defense system which is their only public excuse for putting weapons in space.

According to"Battlefield Space" (an article by Jack Hitt in the New York Times Magazine August 5, 2001), the use of space for weaponry directed back at earth or guided from space is pretty much at hand."War planners have conceived scores of new and exciting weapons. Talking about them is not a conversation the military wants to have in public, given the gnarly debate over the missile shield, but it is one they have been having in private for some time." According to a recent Pentagon study, a laser cannon in space could"successfully attack ground or airborne targets by melting or cracking cockpit canopies, burning through control cables, exploding fuel tanks, melting or burning sensor assemblies and antenna arrays, exploding or melting munitions pods, destroying ground communications and power grids, and melting or burning a large variety of strategic targets (e.g. dams, industrial and defense facilities and munitions factories) -- all in a fraction of a second." Another study included in Air Force 2025 describes small metal projectiles fired at the earth from space. These"flechettes" could penetrate the earth to a depth of a half mile, destroying targets like underground bunkers.

If the above sounds like what I have been saying for almost twenty years in my"Star Wars" speech, there's a good reason. These recent studies mirror the results of studies we performed in the 1970s and early 80s. The difference is that then we considered the results sufficient reason to continue our national policy of keeping weapons out of space, while now they entice the hawks into discarding treaty constraints and pursuing a still more total form of absolute military superiority. Bush's first budget quadrupled the spending on laser battle stations. In his new budget, he gives the space warriors an essentially blank check. Now he has once again renamed and reorganized the Pentagon office doing"Star Wars." Under Reagan and Bush I, it was the Strategic Defense Initiative Organization (SDIO). Under Clinton, it became the Ballistic Missile Defense Organization (BMDO). Now Bush II has made it the Missile Defense Agency (MDA) and given it the freedom from oversight and audit previously enjoyed only by the black programs. If Congress doesn't act soon, this new independent agency may take their essentially unlimited budget and spend it outside of public and congressional scrutiny on weapons that we won't know anything about until they're in space. In theory, then, the space warriors would rule the world, able to destroy any target on earth without warning. (Of course, they still won't know where Osama bin Laden is!)

Will these new super weapons bring the American people security? Hardly. But they will (according to a government study) enable our government to maintain the growing gap between rich and poor in the world. This is the real reason the billionaire" country-club conservatives" and oil-company hirelings want to get rid of the ABM Treaty.

So What Can We Do About All This?

Of course, Congress could vote not to withdraw from the ABM Treaty. Then the courts would have to deal with the issue. This is by far the most desirable course of events. Unfortunately, that's unlikely to happen. The Democrats (who never would have withdrawn from the treaty if it were up to them) are running scared of Bush's apparent popularity, and are unlikely to mount such a challenge until the 9/11 honeymoon is over. By then it will be too late. They would also be unlikely to gather enough Republican support to get such a resolution through the House of Representatives.

Alternatively, a coalition of Democrats and conservative Republicans could pass a joint resolution saying that they insist on their constitutional right to be involved in any withdrawal (without committing to which way they would vote). Such a measure has a better chance of passage than an outright vote against withdrawal. In the face of such a challenge, President Bush might well request a joint resolution of Congress enabling him to withdraw from the treaty. Then, the Democratic majority in the Senate might be able to prevent the resolution from passing, and the ABM Treaty would be saved.

There is a third option. If a joint resolution insisting on a congressional vote was unable to pass in the House, it might still be possible to pass a Senate resolution asking the President to submit any treaty withdrawal to them for their advice and consent. A simple majority would be sufficient to pass such a resolution. The President would be likely to refuse, knowing that he could never get 2/3 of the Senate to vote for withdrawal. At that point the courts would have to get involved. Even though the Supreme Court leans toward the Republicans (as evidenced by their appointment of Bush as president), they might have a hard time justifying denying the Senate a voice. A court decision in favor of Senate involvement would again save the ABM Treaty.

Once again, however, the Democrats in the Senate might well chicken out and refuse to insist on a role in the withdrawal process. In that event, the United States will officially withdraw from the ABM Treaty on June 13, 2002.

Even then, all is not lost. It is possible to avoid the worst effects of withdrawal even after it happens. All that is required is for the Congress, through its power of the purse strings, to refuse to fund activities that would violate the ABM Treaty were it still in effect. There is precedent for this. Congress did it to President Reagan more than once. For example, after the Reagan Administration officially adopted a loose interpretation of the ABM Treaty, Congress refused to fund any activities in violation of the strict interpretation. The loose interpretation eventually was abandoned. Congress also used its budget authorization power to prevent the Reagan Administration from violating a joint U.S./U.S.S.R. ban on anti-satellite tests that it had never agreed to. Congress also used the same tactic during the first Bush presidency to force the Administration to abide by a Comprehensive Test Ban that it had refused to sign.

With the Republicans in control of the House, it is unlikely that a straightforward ban on spending in violation of the ABM Treaty could pass. But the Senate can simply refuse to pass any defense authorization or appropriation bill which funds such activities. Then, if the 2002 elections result in both houses being in Democratic/Independent control, subsequent defense spending bills can contain language such as the following:

"No funds authorized by this or any other Act may be used for any activity which would be in violation of the ABM Treaty, were that Treaty still in effect."

If there is strong control in both houses, and Bush's popularity drops, then it would also be possible to pass a Joint Resolution such as the following:

"The Congress of the United States of America finds that withdrawal from the ABM Treaty was unlawful, unnecessary, and unwise. This Congress will therefore conduct its business as if the Treaty were still in effect. We appeal to the Russian Federation to do likewise."

Russia is unlikely now to react strongly to our withdrawal from the ABM Treaty. But if our government proceeds to deploy weapons in space, then not only Russia, but China, and many nations we consider our allies are likely to respond very strongly indeed. The end result would be a world even less secure than the one we have today. We must do all we can to prevent that from happening.