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Senator WILSON. Mr. Chairman, I know of nothing that indicates that the technology that they are applying does not meet that standard.

Judge SOFAER. Anyway, that would be deployment. You are not permitted to deploy. If it is a component, even if it is based on other physical principles, you are not permitted to deploy it to serve the function of an ABM system or component.

Senator WILSON. That, it seems to me, Mr. Chairman, is a violation of the ABM Treaty that is perhaps of greater importance even than what we know at Krasnoyarsk.

Senator COHEN. I have one question.

Judge, you indicated it was not until 1983, when the whole SDI program really became the focal point of debate, that the restrictive interpretation really came to pass.

Judge SOFAER. Was advanced in a vigorous clear way.

Senator COHEN. I have copies of the Arms Control Impact Statement for fiscal year 1979. It says:

Particle beam weapons used for BMD which are fixed land-based could be developed and tested but not deployed without amendment of the ABM Treaty, and the development, testing and deployment of such systems which are other than fixed land based is prohibited by Article V of the Treaty.

That was submitted in the Arms Control Impact Statement in fiscal year 1979. Then similar language in fiscal year 1980. So, as early as 1979 and 1980 they were saying it was specifically prohibited for those systems which are other than fixed land-based.

Judge SOFAER. I do recall there were statements in 1979. I think it really picked up after the SDI Program.

The statements in March were even more explicit that came out of the Department of Defense. Most of the statements advocating the restrictive view came out of the Department of Defense. Senator WARNER. Judge, one last question.

As lawyers we often talk among each other about our briefs and arguments.

Would you consider this a closed legal question?

Judge SOFAER. That is an ambiguous statement in itself. I feel confident about the advice I have given my principals. I ask myself the question in sort of a concrete way which made it more meaningful for me. Can you tell the Secretary and the President that the Russians are banned by this treaty from developing and testing systems and components based on other physical principles? The clear answer to that question is no.

Senator WARNER. Very well. We thank you.

Mr. Smith, thank you so much for patiently waiting. You will be joined by Mr. Rhinelander.

STATEMENT OF AMBASSADOR GERALD C. SMITH

Ambassador SMITH. Mr. Chairman, I have a brief statement I would like to make. I would like to say at the start I have great respect for Judge Sofaer and admiration for a man who has sacrificed a lifetime tenure as a Federal judge to fight the thankless battles of bureaucracy in Washington.

I would like to stress that my criticism today is in no way addressed to him personally.

I am going to leave it to John Rhinelander to make the detailed case against the administration's unilateral revision of a 13-yearold treaty. It is my belief that the 1972 Senate consent to ratification was based on the earlier interpretation which persisted until last month and I also believe there was a meeting of the Soviet and American minds on this score.

I had the good fortune to be sitting in on almost all of these hearings that we have heard about today. I have a strong belief that the new version was not what the Senate was thinking about when it consented to ratification.

Post-treaty Soviet actions have been consistent with the earlier interpretation. Administration officials have stated that there are two claims to the contrary. The sole motive for the switch appears to be to ease foreseeable treaty impingement on the SDI weapons program which is aimed at nationwide defenses against ballistic missiles, an aim which, incidentally, is now outlawed by that treaty.

I would stress that the basic objectives of the ABM Treaty to outlaw nationwide weapon systems to counter ballistic missiles and the strategic defense initiative as presently programmed are in direct opposition. They cannot coexist for long.

General Abrahamson has testified that in about 5 years it will be necessary to "depart" from the treaty. Some officials speak of amending the treaty. To my mind that would be tantamount to having tried to amend the Volstead Act to permit the sale of liquor. The recent reinterpretation of the treaty is, I suppose, an effort to amend the treaty unilaterally as it becomes clear that the Soviets have no interest in liberalizing existing constraints. They seem to favor tightening the treaty.

The belated discovery of what was said to be the new and categorically correct interpretation of the treaty was somewhat marred a few days later when the administration announced that the legal interpretation would not be accepted as a guide for U.S. arms control policy, at least not for the time being.

No explanation was given for this curious and quick withdrawal from legal certainty. We were merely told that the question was moot. A view of the treaty apparently considered legally incorrect by the administration is to be followed.

Considered how fragile the situation now is when a government can speak with two voices about its international obligations-one legal and one political.

Last week the Secretary of Defense advised the President not to promise to keep to the present policy. How long will this issue remain moot? Can either party to the treaty rely on the present situation persisting?

As in the case of SALT II offensive weapons controls, the administration in the ABM Treaty change seems to be trying to preserve constraints on Soviet weapons while seeking freedom for American weapons development. In SALT II, I might say, this task is not made easier by our refusal to be legally bound through treaty ratification.

Faced with mutual charges of violations of offensive and defensive control arrangements, our failure to ratify the latest three

arms control treaties, and with the recent unilateral ABM Treaty revision, the prospect for the arms control process appears bleak. Nothing that I have read in today's communique from Geneva suggests much to negate that conclusion.

The administration's attitude toward the relationship of law to arms control was also shown in connection with the latest antisatellite test. Language in the fiscal 1985 Defense Authorization Act required the President to certify before any ASAT test took place that the United States was "endeavoring in good faith, to negotiate with the Soviet Union a mutual and verifiable agreement with the strictest possible limitations on antisatellite weapons.

Such a certification was made. Suing to block the test, Representatives George E. Brown, Matthew F. McHugh, Joe Moakley and John F. Seiberling submitted in the Federal District Court for Washington, DC, affidavits from two congressional advisers to the U.S. delegation to the arms control talks in Geneva.

Thomas J. Downey stated:

To the best of my knowledge, no negotiation between the United States and the U.S.S.R. on limiting ASAT weapons is now in progress in Geneva.

Representative Esteban Torres declared:

The United States has not proposed any restrictions on antisatellite weapons and is not preparing to propose such restrictions.

The court denied the motion for a temporary restraining order on the theory that the decision to test was a political question. The test was conducted. So much for the respect which the administration pays to arms control legislation.

A few words about procedure. The reversal of earlier administrations' views including the Reagan administration's that the treaty banned the development and testing of space-based systems was decided upon in secrecy without consultation with Congress, the allies, or, indeed, with the SALT team that negotiated the treaty, among which are a former Secretary of Defense, a retired Air Force lieutenant general, and a retired senior professional Ambassador.

We are hearing today about new physical principles, things that were not know about. It was perfectly clear to us that in 1972 the concepts of lasers and particle beam weapons and direct energy weapons were well known.

I recall an episode where one member of the delegation handed over to the Soviets a magazine article describing this type of technology. It is not something that was discovered just recently.

The one principal SALT delegate still surviving in Government service apparently subscribed to the traditional version until a few weeks ago. Perhaps more importantly there was no consultation with the other party to the treaty even though special machinery exists in the form of the Standing Consultative Commission to handle claims of alleged ambiguities.

It seems fair to ask if this was an appropriate way to change the supreme law of the land.

If, in the future, an administration shifts the present policy of following the traditional treaty construction to the novel and permissive legal position, I think a justifiable issue may arise permit

ting the courts to decide if the supreme law of the land can thus be changed by executive fiat.

Treaties are supposed to lead to some predictability about the future. This is especially important when it comes to programming Armed Forces for the future. Unilateral revisionism makes for uncertainty which is in the enemy of prudent force planning. This is compounded when, as is the case now, a nation supports two treaty interpretations-one legal and one political.

The ABM Treaty has strong support in the United States. Just a few weeks ago six former Secretaries of Defense urged the President not to take any steps further to erode this treaty. Unfortunately, their experienced advice was quickly rejected. Revision cannot help but erode the treaty.

The Soviets are now virtually defenseless in the face of our ICBM's. I think that fact is good for the security of the United States. The administration seems to want to change it—and even speaks of selling the Soviets technology to make our missiles impotent and obsolete.

That strikes me as a senseless policy. We should try to keep the Soviets defenseless and the best way to do that is to strengthen and not weaken the ABM Treaty.

Incidentally, we are told by the White House that we are 10 years behind the Soviets in strategic defense. If that is the case, why in the world would we issue a license to them to accelerate their work and extend it by a new treaty version? This is beyond my comprehension.

I was struck by a recent statement of the Secretary of Defense that even the probability of Soviet defenses would warrant increases in U.S. forces. Isn't this the strongest reason for not weakening the ABM Treaty and, incidentally, for doubting the administration's argument that SDI will lead to arms control?

The preamble to that treaty states in part "proceeding from the premise that the limitation of antiballistic missiles systems, as well as certain agreed measures with respect to the limitation of strategic offensive arms, would contribute to the creation of more favorable conditions for further negotiations on limiting strategic arms."

The President's March 12, 1983 program, on the contrary, is based on the premise that the decontrol of antiballistic systems will lead not only to limits on strategic arms, but also to the elimination of nuclear weapons.

Which of these two premises is closer to the truth? That is the basic question which faces this administration and will face it suc

cessors.

Thank you.

Senator WARNER. Would you like to have Mr. Rhinelander's leadoff?

Ambassador SMITH. I think that would be most useful.

STATEMENT BY JOHN B. RHINELANDER

Mr. RHINELANDER. Mr. Chairman and members of the committee, I submitted a 41-page statement with 9 exhibits to the committee yesterday with a 6-page outline. I understand it was viewed as too long to reproduce.

I would ask that they be printed in the record of the hearing. Senator WARNER. Yes; I was just acquainted with that fact. I apologize. I was not aware of the fact you had submitted a statement. It will be made part of the record.

[NOTE.-Exhibits are retained in committee files.]

Mr. RHINELANDER. Very good. It is a revised version of the statements I had prepared earlier for the House and Senate in the last 2 or 3 weeks.

I would like to point out some exhibits which are attached to it. The first, which is exhibit E, is a chapter from a book which I wrote in 1972 and 1973. The book was published in 1974. That chapter has been generally viewed by those in the executive branch as the public reference on the interpretation of the ABM Treaty and also on the interim agreement. I have not reproduced the pages on the interim agreement.

During the last negotiating session on SALT I in Helsinki I prepared successive drafts of long memoranda, 60 to 80 pages long, interpreting both agreements. I understand they are classified top secret. I have not seen them since I left the SALT process in 1972. I am absolutely certain, though, that the summary which is in the chapter I wrote in 1972 and 1973 reflects the advice available to everybody within the SALT delegation on what the interpretation of the treaty was.

I know my own files-I was told this a couple of years ago— which I left behind in Government have been lost, but there are copies of the memoranda, I know, in JCS, OSD and, I believe, in other parts of the Government.

I have been asked questions from time to time, including questions of why I changed a footnote on the second to last draft, in the last draft.

I would submit that that is the basic document which members of the executive branch were using in preparing testimony and particularly in preparing the submissions for the record of the hearing.

The other exhibit I wanted to mention is in July I attended a conference in Sweden and I wrote a long paper looking at the ABM Treaty and what I thought ought to be done constructively to strengthen it. That is not an issue before the committee today. That exhibit F does contain my fullest thoughts.

Let me make about five points and then I think we ought to turn to questions.

Senator HART. Mr. Rhinelander, I have a communication from former Secretary Elliot Richardson who notes he has also written to Senator Warner. He includes in his letter a document dated November 21 of this year entitled "Statement of Reinterpretation of the ABM Treaty" by four lawyers and former Government officials, submitted to the Senate Armed Services Subcommittee on Strategic and Theater Nuclear Forces. That is the only heading.

The four signers are the Honorable Erwin Griswold, the Honorable Shirley Huftsteder, the Honorable Elliot Richardson, and the Honorable Cyrus Vance. It is their intention, I think, to try to have this made part of the record. I would submit it for that purpose. I got the impression somehow you might be offering it as part of your remarks.

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