Senate Has Stake in Reading of ABM Pact

Alton Frye is the Washington director of the Council on Foreign Relations

President Reagan may feel that he has heard all that he cares to from Congress; nevertheless, the Senate has something more to say about arms control.

Thanks to the perseverance of Sam Nunn (D-Ga.) and William S. Cohen (R-Me.), reinforced by Richard G. Lugar (R-Ind.) and Claiborne Pell (D-R.I.), the Senate is now in custody of the relevant negotiating records of the 1972 anti-ballistic-missile treaty. Extracting those materials from a reluctant executive branch has taken many months. Senators have had to override Administration insistence that they accept, without so much as an opportunity to examine the record, radical reinterpretation of the treaty to accommodate an expansive Strategic Defense Initiative.

That attempted reinterpretation, concocted initially by a young lawyer consulting for the Defense Department, poses a vital constitutional issue. The Senate would render its legislative role meaningless if it allowed abandonment of a treaty interpretation on the basis of which it gave its advice and consent to ratification. That would invite future executives to tell the Senate whatever it wanted to hear in order to obtain ratification, knowing that the President could later adopt whatever interpretation it found convenient. That is obviously intolerable to the Constitution.

A radical reinterpretation that is tantamount to the amendment of the treaty must logically require the Senate's concurrence. Indeed, the ABM treaty explicitly provides for amendments that would require Senate concurrence. On both constitutional and policy grounds, therefore, the Senate has an obligation to resolve the dispute over whether the original or the revisionist interpretation of the treaty is valid. How it does so will have crucial implications for negotiations over SDI.

An examination of both the legislative and the negotiating history of the agreement offers good reason for the Senate to advise the President that the treaty affords both ample latitude for vigorous research into strategic defenses and firm limits on the kinds of development and testing activities that either we or the Soviets may conduct.

During hearings on the treaty in 1972, the late Sen. Henry M. Jackson drew the guidelines very clearly in his interrogation of witnesses before the Armed Services Committee. He indicated, for example, that the treaty would permit development and testing of such exotic technologies as lasers at designated test sites on the ground--but not on space-based, air-based, sea-based or mobile land-based platforms.

On this understanding Jackson reluctantly voted for the treaty. One of the two senators opposing the pact, James Buckley, did so specifically because he knew that it prohibited development and testing of "a laser-type system based in space."

As the current Senate reviews the proposed reinterpretation, it seems inevitable that it will conclude that the original interpretation is the only lawful reading of the agreement as ratified.

A finding by the Senate that the United States is bound to respect the longstanding interpretation should reassure Moscow that Congress will not fund activities transgressing the treaty. Such an assurance, coupled with the President's offer not to withdraw from the treaty for 10 years, would lend credibility to his repeated pledge that the United States will carry out SDI as a research program within the treaty's limits. Far from tying the hands of the President, Senate clarification of the treaty interpretation would underscore how much of the technology that the President wishes to explore can go forward--and not only within the laboratories.

The convergence of these influences could go far toward breaking the deadlock over SDI and opening the way to agreed reductions in offensive forces. Soviet leader Mikhail S. Gorbachev's argument that nothing should be permitted beyond the laboratory, and the President's contention that nothing should be prohibited short of deployment, obscures the realistic options for reconciling the two sides' views concerning strategic defense. One can frame a compromise that regulates only a few critical technologies: space-based nuclear reactors, lasers, particle-beam devices and mirrors. Given the President's repeated offer to share the benefits of SDI technology, both sides would do well to agree that space-based testing of these few systems would require joint approval and monitoring.

Any attempt to shore up the ABM treaty as a basis for reducing offensive forces must address another major problem: the challenge to compliance posed by the Soviet Union's large radar at Krasnoyarsk. Authorities close to the Soviet leader indicate that he is looking for a straight political deal on the issue. Moscow will probably agree to dismantle its facility if the United States forgoes plans to upgrade a radar in the United Kingdom.

Some in the Administration object to such a trade. They ask why we should give up something that we are entitled to do for something that the Soviets are not entitled to do. That is the wrong question. We need to decide whether getting rid of Krasnoyarsk is more important to our security than modernizing one more radar of our own. By that standard there should be no doubt that removing the Soviet facility deserves priority.

One further point deserves notice: White House Chief of Staff Donald T. Regan has described the astonishing flow of Soviet concessions. On issue after issue--intermediate nuclear forces in Europe and Asia, nuclear testing, counting rules for strategic bombers and their weapons, sea-launched cruise missiles, cutbacks in their heavy missiles--the Soviets have responded to American concerns. In the perceptions of our European allies, the onus has now shifted to Washington to devise a constructive approach to SDI that can bridge the gap on that decisive element in the negotiations.

The flux of possibilities generated by Reagan's exchanges with Gorbachev more than justifies the risks that he took in going to Iceland. It is imperative that he and the Soviet leader focus not on the vague and distant prospect of moving toward zero ballistic missiles or abolition of all nuclear weapons, but on their more realistic goal of reducing strategic offensive forces to 1,600 launchers and 6,000 weapons over a five-year period.

Yet to square the circle between SDI and arms reductions of that magnitude will require sober analysis and diplomatic ingenuity. The President needs a fresh supply of both qualities. Senior military advisers and experienced senators can provide them.

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