nying negotiating record, and their subsequent conclusion that the understanding of the ABM Treaty limitations on exotic technologies that we have recognized for over a decade was not supported by those documents.

Last month the administration announced that a more permissive interpretation of the ABM Treaty limitations on exotic technologies had a legal foundation. However, the President made a policy decision that the SDI Program would continue to be pursued in accordance with the more "restrictive" interpretation of the ABM Treaty.

The subcommittee intends to explore the implications of this policy decision on the SDI Program with its Director, General Abrahamson, and others. Today, however, we will be focusing on the legal aspects of the administration's recent decision.

Our first witness this afternoon is Judge Abraham Sofaer, the Legal Adviser to the Department of State. Judge Sofaer will explain the basis for the administration's conclusion that a broader interpretation of the ABM Treaty limitations on exotic technologies is with legal foundation. His presentation will be followed by a brief round of questions.

Judge Sofaer, I would like to welcome you on behalf of the subcommittee.

Judge Sofaer's presentation will be followed by a second panel consisting of Ambassador Gerard Smith who represented the United States in negotiating the ABM Treaty and the SALT I interim agreement, and John B. Rhinelander, who served as a member of the SALT I delegation.

I would also like to welcome you both on behalf of the subcommittee.

After the opening comments of my colleague from Colorado, Senator Hart, we can proceed with Judge Sofaer's presentation.

Senator Hart.

Senator HART. Thank you, Mr. Chairman. I have no statement. Senator WARNER. Senator Levin.

Senator LEVIN. No.

Senator WARNER. Senator Wilson.

Senator WILSON. NO.

Senator WARNER. Please proceed, Judge Sofaer.

STATEMENT OF JUDGE ABRAHAM D. SOFAER, LEGAL ADVISER TO THE DEPARTMENT OF STATE

Judge SOFAER. Mr. Chairman, this is my first appearance before the subcommittee. I am honored to be here.

I would ask that my written statement, which I have submitted to the subcommittee, be made a part of the record. In this way I will be able to summarize it.

I will spend some time, Mr. Chairman, with your permission, on some of the specific provisions of the treaty. I think when we discuss the meaning of the treaty and what aspects of the treaty are enforceable, it is very important to focus on the document and the language of the various provisions in that document, as well as on the negotiating history.

So, if you will bear with me, Mr. Chairman, I will spend some time on some of the specific provisions.

The treaty is an important element of our strategic arms control structure and we have conducted the SDI program, as you know, consistent with a "restrictive" interpretation of the treaty, as it has been referred to here.

Soviet violations of the treaty, the implementation of our SDI program, and the ongoing arms negotiations at Geneva recently caused various agencies to consider more thoroughly than ever before the appropriate interpretation of the ABM Treaty insofar as it relates to so-called future systems. By that, I mean defensive systems that serve the same functions as ABM systems and components, but that use devices based on technology not understood in 1972 when the treaty was negotiated and devices that are also capable of substituting for ABM interceptor missiles, launchers and radars.

This examination has led to the conclusion that a reading of the ABM Treaty that would allow the development and testing of such systems based on physical principles other than those understood in 1972 is wholly justified.

I want to emphasize the critical point made by Secretary Shultz in his speech to the North Atlantic Assembly on October 14 that: Our research program has been structured, and, as the President has reaffirmed, will continue to be conducted in accordance with a restrictive interpretation of the Treaty's obligations.

The Secretary also assured our NATO allies of this fact. I was with him at the time, Mr. Chairman, so I can testify to that—and he assured them also that they would be consulted before any major change was made in the program.

I was well aware when I began this work on the treaty and its meaning that several distinguished officials associated with the SALT I negotiation, and others still in the Government, had advanced the view that the ABM Treaty is unambiguous in its treatment of future systems.

They argued that article V of the treaty forbids development, testing or deployment of any future ABM systems and components other than those that are fixed land-based. They read Agreed Statement D as relevant only to fixed land-based systems and components, arguing that it permits "creation" of such systems and components when they are based on "other physical principles," but conditions their deployment on agreement between the parties on specific limitations.

Others in the administration were contending, however, that this restrictive interpretation was based on unilateral assertions by U.S. negotiators, that the treaty is in fact ambiguous, and that the negotiating record supports a broader view of our freedom to develop, test and even to deploy future systems.

My study of the treaty led me to conclude that its language is in fact ambiguous and can more reasonably be read to support a broader interpretation. The restrictive interpretation rests on the premise that article V(1) is clear on its face-that it says no development, testing or deployment of ABM systems or components other than those that are fixed land-based, and that this statement

means any system or component or other device that serves the function of ABM systems as defined in article II.

But this language, "ABM system or components," that is found in article V does not settle the issue of the article's applicability to future systems or components. That issue depends on the meaning of the term "ABM system or components."

Is that phrase limited to systems and components based on thencurrent technology, or does it also include those based on future technologies?

In attempting to answer this question, one must turn to the definition actually provided of an "ABM system" in article II(1). Proponents of the restrictive view contend that the definition is purely functional-that anything ever conceived that could serve the function of countering strategic missiles in flight must fall within the definition.

These persons argue that the three components identified in article II(1), missiles, launchers and radars, are merely listed as the elements that an ABM system currently consists of, and that all future components of a system that satisfies the functional definition are also covered by article II(1).

It is this definition of ABM system or components that the proponents of a restricted view must have in order to have article V(1) mean what they say it means.

I would suggest that, while this reading is plausible, it is not the only reasonable reading, and in fact it has serious shortcomings. The premise that article II(1) defines "ABM system" in a functional manner, meant to include all future systems and components, is difficult to sustain.

The provision can more reasonably be read to mean that the system contemplated by the treasury are those that serve the functions described and that currently consist of ballistic components.

The treaty's other provisions consistently use the phrases "ABM system" and "components" in contexts that reflect that the parties were referring, in using those terms, to systems and/or components based on known technology.

I will skip over the few examples I gave in my written testimony, Mr. Chairman; there are many others in the treaty. Every time the words "ABM system" or "components" are used in the treaty, it is clear that the writer had in mind those conventional systems and components that were known and based on what would then be present physical principles.

Systems and components based on future technology are not discussed anywhere in the treaty other than in agreed statement D. In that provision, the parties felt a need to qualify the term "system and components created in the future," which appeared in agreed statement D, with the additional phrase "based on other physical principles."

If "ABM system and component" actually meant all systems or devices that could serve an ABM function, whether based on present or future technology, the parties would not have needed to qualify these terms in agreed statement D. That this qualification was added suggests that the definition of "ABM system" and "components" in article II(1) extended only to those based on presently utilized physical principles and not on "other" ones.

The existence of agreed statement D itself poses a fundamental problem for the restrictive view. Nothing in that statement suggests that it applies only to future systems that are fixed landbased.

On the contrary, it addresses all ABM systems and components that are "based on other physical principles." Moreover, the restrictive interpretation would render this provision, agreed statement D, superfluous.

If article II(1) extended to all ABM systems and components based on present as well as on future technology, then article III implicitly would have banned all future fixed land-based systems and components.

As you have seen in the treaty itself, Mr. Chairman, article III says that all systems and components other than those dealt with in article III are banned. So, agreed statement D itself would have been unnecessary.

An interpretation of a treaty, just like any other contract, which renders a portion of that treaty superfluous violates accepted canons of construction. The serious difficulties of construction created by the restrictive reading are avoided if one reads article II(1) and V(1) as referring only to ABM systems and components based on currently utilized physical principles.

Read in this manner, the treaty establishes a coherent, nonredundant scheme that prohibits:

First, the deployment of all fixed land-based systems and components derived from current technological principles except as specifically permitted in article III.

Second, the deployment, testing and deployment of all mobile systems and components derived from current technological principles, as is provided in article V(1).

And third, the deployment of all forms of systems and components derived from other physical principles until after agreement on specific limitations, as provided in agreed statement D.

Other reasonable constructions of this treaty have been advanced within the administration, Mr. Chairman, I might say some even broader than the construction that I feel is the correct and most reasonable construction and which the President has adopted.

Under international law, there is no need to go into those because my primary task in looking at the treaty was to determine whether it was ambiguous. It is clear to me that not only can it be read two ways, it can be read as many as four ways.

Now, under international law, just as is true under U.S. domestic law, once an agreement has been found ambiguous, one must seek guidance in the circumstances surrounding the drafting of the agreement.

In the present situation once we concluded the treaty was ambiguous, we looked at the negotiating record. That was no easy task. No one had collected the negotiating record in one single place. The one set of excerpts from the negotiating record that had been collected by some people within the administration was incomplete, seriously incomplete.

Senator WARNER. We have an obligation to vote. We will vote as a group and return. We will resume as soon as both Senator Hart and I return to the hearing room.

Senator HART. I was wondering on that point: what is the administration's position in making that negotiating record available to the committee?

Judge SOFAER. Senator Hart, as soon as a formal request is made of some kind, that would trigger the administration's responsibility. I am not authorized to make the response.

Senator HART. Who is?

Judge SOFAER. I am sure it would go up the normal channels.
Senator HART. And stop where?

Judge SOFAER. Ultimately if need be, it goes to the President. I do not anticipate any such problem if such a request is made. I would urge you to consider――

Senator WARNER. We are going to be advised by counsel here who has some knowledge on this.

We will vote now and then return.

[Recess.]

Senator WARNER. The hearing will resume.

Senator Hart, in the interim I spoke to the judge. He would like to amplify some of his response with respect to the understanding of the procedure by which the Senate can acquire access to these confidential documents.

Judge SOFAER. I had no desire to amplify beyond saying that a letter from the committee to the Secretary would be an appropriate manner in which to trigger a formal request.

I would just remind you that this is a very special area, that is, the negotiating record of a treaty. It is not only classified, but generally very sensitive, closely held, and there are established methods for the executive branch to communicate to the legislative branch any materials that it wants through closed hearings and the observer process.

Ambassador Nitze and I appeared before the Senate observers 2 weeks ago. We were as forthcoming, I think, then as we were asked to be.

Senator HART. The issue is Congress' right and the obligation of the Senate to ratify treaties. We handle classified documents all the time.

Judge SOFAER. Absolutely.

Senator HART. Thank you.

Senator WARNER. Any further inquiry on this matter?

If not, we will return to the Judge's presentation.

Judge SOFAER. I just want to say one of the things you will find we have done is that we have collected now all the parts of the negotiating history that we could find that are relevant to this question in one place.

The prior collections themselves were inadequate and incomplete. So, some of the confusion in this area I would attribute to the fact that no one had properly collected the entire negotiating record. The record is classified, as you know

Senator WARNER. That collection was completed before the various persons made their interpretations on this treaty?

Judge SOFAER. It was completed before I gave the Secretary and President my view of the treaty.

Senator WARNER. You had full access to it. You said, "Other persons have reasonable views, some of them broader than my own."