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US and Russia - Bound to Cooperate on BMD?

John B. Rhinelander
Senior Counsel, Shaw Pittman
Vice Chairman, Lawyers Alliance for World Security (LAWS)
Former Deputy Legal Adviser, Department of State
Former legal adviser to the US SALT I delegation on the ABM Treaty

George Bush was elected President in November 2000 in the closest and most disputed election in 125 years. His Republican Party carried the House of Representatives by a narrow six-vote margin and the evenly-divided Senate remained under Republican control due to his Vice President's tie-breaking vote. The country was prospering and at peace. The Bush Administration dominated Washington for its first four months in office with its strongly conservative agenda at home and arrogant unilateralism abroad. The early deployment of national missile defense (NMD), the end of the ABM Treaty, and the general disparagement of treaties seemed to be its only foreign policy objectives. Then two events occurred.

In June, Republican Senator James Jeffords left his party and voted for Democratic control. The Senate agenda and scheduling were now in Democratic hands with decidedly different views from the President, particularly on NMD, the ABM Treaty, multilateralism and the importance of legal regimes. Yet as summer moved towards fall, the views of allies, adversaries and others on these subjects were apparently for naught. The outcome was going to be decided primarily by and between the Senate and the President during the annual fall budget debates and decisions. A balanced budget was the rhetorical goal of both parties. There were not enough funds for all priority wishes, and Congressional conditions on appropriated funds would probably have been decisive.

All this changed with the terrorist attacks on the World Trade Center and Pentagon on September 11. The President's popularity soared and he grew as a leader. He called for a war on terrorism and Congress approved a use-of-force resolution, unanimously in the Senate and with only one dissent in the House. Bipartisanship was in and all partisan controversies were put off for another day. Forty billion dollars of emergency aid was immediately approved with another $60 billion to follow. The budget surplus was a thing of the past. The US economy, and those of Europe and Japan as well, already weak, were toppling toward a recession world-wide that could be long and deep.

Internationally in its war on terrorism, the US sought and received support from its traditional allies including NATO and Japan, and almost all others, including moderate Muslims. Pakistan was key, being adjacent to land-locked Afghanistan that was at the center of the elusive Osama bin Laden-al Qaeda-Taliban network. Russia joined the US, as did three of the Central Asian Republics bordering Afghanistan on the north, with Russia facilitating American use of bases in Central Asia. The US modulated its views of Russian behavior in Chechnya. A fundamentally new US-Russian relationship seemed to be afoot, a huge transformation since the disappointments following 1991. Overall, the need to build and hold together the international coalition against terrorism (the Coalition) pushed all other foreign policy issues in Washington into the background.1

With the focus on terrorism, NMD disappeared from the news. The Bush Administration's drive that had pointed toward the President giving a unilateral, six-months' notice of withdrawal from the ABM Treaty in November 2001 (that would have been effective May 2002) seemingly stalled, notwithstanding the occasional outcry of some missile defense ideologues. Unilateralism did not fit the newly changed world of the Coalition.

Research, development, testing and evaluation (RDT&E) of missile defense will proceed, however, at the pace and in the areas that Congress approves, subject to the uncertainties of successful or unsuccessful actual tests. There is little resistance to an R&D approach abroad. The most important near-term constraint at home is the fierce competition for funds even in the national security field, including improved intelligence and elements of homeland defense.

The US and Russia now need each other. While a new legal framework covering both offensive and defensive strategic systems is conceivable several years from now, it is implausible at this stage since the US does not know what it wants, or needs, for NMD. A non-binding political agreement is unacceptable to Russia. The obvious near-term approach should be adaptation of and amendments to the ABM Treaty to permit a vigorous RDT&E program over the next ten years, as outlined by President Bush over the summer. These treaty changes could be simple, quick, with brief documentation, and in a form acceptable to Russia.

The problems facing such a solution are two-fold. First, the Bush Administration, at the working level, is unalterably opposed to continuing the ABM Treaty in force and incapable of formulating a position on what adaptations and amendments are technically necessary. It would probably expend time and energy on deal-breakers not necessary for a sound RDT&E program. Second, Russia, which apparently is ready to accept what the US would need, is not about to initiate a proposal to benefit US RDT&E programs and, in any event, wants to couple revised, legal constraints on strategic defense with deep cuts on strategic offense. The US will not be ready to discuss such offensive limits before early 2002.

The challenge is to get actual negotiations on detailed programs started in 2001 at a time when neither side is willing to take the first step toward a mutually acceptable outcome. While it is possible that a decisive step could be taken at the November 2001 Summit between Presidents Bush and Putin, the domestic politics of NMD in the US make this very difficult.


The domestic politics of missile defense

In contrast to the debates over ballistic missile defense in the 1950s and 1960s, NMD is now a highly partisan issue. It has been so since President Reagan's Star Wars speech in 1983, reinforced over the years by its inclusion in Newt Gingrich's Contract for America and in the quadrennial Republican Presidential platform. Under current President Bush, the partisanship of NMD has been joined by two new trends. First, arms control in general has been under continuous attack, mostly from conservative Republicans, with the refrain being that the US honors its legal commitments while others cheat. Second, international treaties in general have been denounced by radical conservatives, some of whom now hold key positions in the Bush Administration, who argue that the US must remain free to act in its own interests in light of its "exceptionalist" status. In the aftermath of September 11, these positions are currently muted, but still lay beneath the surface. When Senate Democrats withdrew their challenges to Bush's initial BMD funding proposals in the weeks following the terror attacks, the differences were only deferred, not conceded.

These factors and trends make for a volatile mix sometime in the future, notwithstanding the immediate and continuing need for bipartisanship in support of the Coalition against international terrorism.


The President

President Bush came into office voicing strong support for deep reductions in strategic offensive nuclear weapons and deployment of effective NMD. His posture and programs to date are closest in many respects to those of Ronald Reagan, even though the Cold War is over. Many of his advisors at State, Defense and the National Security Council are not moderates or conservatives, but radicals. The exceptions are his Secretary of State, Colin Powell, who is becoming the leading advisor and spokesman on foreign affairs,2 and Powell's Deputy, Richard Armitage, both of whom are pragmatists. Further, the UK Prime Minister, Tony Blair, is acting as a junior partner and co-leader of the Coalition, with multi-faceted roles.3

Under the Constitution, the President is Commander in Chief and has wide latitude in the conduct of foreign policy. When the US is on a war footing, Congress generally supports the President, at least initially. One of the few checks for Congress is its power over the purse, a significant means to shape or limit Executive options when exercised.

During the summer, President Bush unveiled some, but not all, of his proposed missile defense program as part of the FY 2002 budget that started October 1, 2001. The Bush program featured a new NMD "test bed facility" in Alaska and vigorous funding of research, development and testing of a "layered defense" - boost phase, mid-course and terminal. More complete details should be forthcoming in late 2001, and certainly by the time the proposed FY 2003 budget is published in January or February 2002. Lurking behind NMD is Secretary of Defense Rumsfeld's interest in offensive and defensive uses of space, an issue of potentially intense domestic and international sensitivity that has received some rhetorical support but has not yet surfaced in any budget proposal.


Congress

Prior to the 2000 Presidential election, a Republican foreign policy analyst ironically quipped that missile defense was "one of the most theological arguments in American politics" because "Republicans would be for it even if it were proven that it couldn't work" and "Democrats against it even if it were proven that it could work."4

Some weeks after the election, when George W. Bush was declared the winner, the new President expected to be working with a Republican-controlled House and Senate for four years, not four months. While the switch to a Democrat-controlled Senate in June 2001 was indeed a sea change in Washington, the situation is anything but stable. The Democrat's Senate majority of one could increase prior to the midterm Congressional elections of November 2002, or be eliminated, on the death, disability or resignation of one Senator from a state where the Governor is from a different party.

In the summer of 2001, the Senate Armed Services and Appropriations committees initially cast very skeptical eyes on the nearly 60 percent proposed increase in funding for FY 2002 missile defense programs and the administration's professed intent to use some of these funds to violate the ABM Treaty. Carl Levin, the new Democratic Chairman of the Senate Armed Services Committee, won a 13-12 partisan vote in Committee to reduce the requested funds and to provide a case-by-case review mechanism before any violation of the ABM Treaty. Both initiatives were withdrawn after September 11, but these issues will surface again in the next budget cycle.

Thus the current Congress, narrowly divided, will exercise its power over NMD budget and other issues for two fiscal years. In November 2002, there will be midterm elections for the entire House of Representatives and for one-third of the Senate. The larger political context promises a near-certain recession, a growing budget deficit with conflicting priorities for available funds, and the need - both domestically and internationally - for continued support of the Coalition during a period when the US is likely to experience one or more additional terrorist attacks.


Treaties and arms control

While the Bush Administration has declared strong support for non-proliferation efforts, its actions appear contradictory. Its adamant opposition to the Comprehensive Test Ban Treaty (CTBT) undercuts the Nuclear Non-Proliferation Treaty (NPT). Its rejection of the draft Protocol to the Biological Weapons Convention (BWC) weakens BWC monitoring and verification efforts. Neither position is likely to change over the near term. On the other hand, Congress did ignore the administration's proposed reduced funding for the Nunn-Lugar cooperative threat reduction program that would have undermined cooperative US efforts with Russia to control fissile material.

The NPT, almost alone among international treaties, should actually appeal to the radical theorists in the Bush Administration since it is discriminatory on its face - the US is one of five countries benefiting from unequal NPT obligations as between nuclear and non-nuclear states. Nevertheless, the party line of many of these theorists is to doubt the efficacy of any treaty and to avoid mutuality of legal obligations - the very essence of international treaties. The stated rationales are varied. Thus, the CTBT is not verifiable. The BWC Protocol will not catch cheaters. The Kyoto agreement on global warming is based on bad science, while the International Criminal Court would inhibit US peacekeeping. Worst of all to these unilateralists is the ABM Treaty. Of all the arms control treaties, it alone is described as a relic of the Cold War. Not only does it allegedly block all useful research, development and testing on effective NMD programs, but it does so, they argue, in a discriminating fashion against the US. These assaults on international law and treaties in general, and the ABM Treaty in particular, may have reached their zenith immediately before September 11. In its aftermath, moderation and the need for multilateralism should predominate as long as the administration is primarily focused on the Coalition against terrorism.


Missile defense and the ABM Treaty

Philip Coyle, the former Director of Operational Tests and Evaluation in the Pentagon, has testified before Congress that a decision on whether effective NMD is even feasible is nearly a decade away.5 Of course, such timelines could be quicker, or slower, depending on Congressional funding and NMD test results. Whatever the time frame, however, Coyle and I have concluded that the necessary development and testing to determine feasibility need not violate the ABM Treaty for years.6 But leaving the ABM Treaty "as is" was not an acceptable option for the Bush White House before September 11, and almost certainly will not be afterwards.

The Bush administration will insist on being freed from the constraints of the ABM Treaty, whether needed or not. For its part, Russia could acquiesce to some changes in the ABM Treaty with little or no adverse strategic consequences, and seems ready to do so if and when the US starts negotiations. China could find a US-Russian compromise less unsettling than President Clinton's proposed three-phase NMD scheme, the deployment of which would clearly have blunted China's minimum deterrent.

The timing of an NMD compromise is uncertain since maintaining the Coalition against terrorism takes precedence, but it could be completed by the end of 2002 if treated as a priority. Bush and Putin could signal a willingness to reach an NMD understanding, including necessary ABM Treaty amendments, at the scheduled summit in November 2001 in Crawford, Texas. Russia will probably continue to insist on deep reductions of strategic offensive weapons as part of the bargain, which the US might accept in general but without specific numbers.7

An NMD compromise that meets the interests of both the US and Russia could consist of three basic factors:

  1. Russia would acquiesce in a US "test bed facility" in Alaska with two ABM launchers at Kodiak Island (which could operate in conjunction with the one-third size, X-Band radar at Kwajalein to intercept target missiles from Vandenberg), five ABM launchers at Fort Greely (which will never be used for flight tests), and the present radar on Shemya Island (which is oriented toward the Kamchatka Penninsula) upgraded to have some ABM capability. This three-prong facility could be accommodated under Article IV of the ABM Treaty, and the 1978 Agreed Statement, by a simple one-sentence US letter of notification to Russia.8 No formal Treaty amendment would be required, assuming (a) that the US continues to intend to have no more than 15 ABM launchers at all its ABM test ranges and (b) that Russia were to acquiesce to Fort Greely and Shemya as part of this Alaska "test bed".
  2. The US and Russia would agree to amend Article V of the ABM Treaty in two respects. First, the ban on development and testing of sea-based, air-based and land-mobile ground-based ABM systems and components would be suspended for a fixed period, such as 10 years, to remove the Treaty as an irritant in US-Russian relations. (The deployment ban on all mobile systems would remain in place during this period, and the development and testing, as well as deployment, of space-based interceptors would also remain prohibited). Second, the current ban on development, testing as well as deployment of space-based sensors that substitute for ABM radars, such as the space-based infra-red system - low earth orbit (SBIRS-Low), would be lifted. These two changes would give the US sufficient latitude to pursue vigorous RDT&E on boost-phase and other priority programs, including space-based sensors.9 These limited changes, even with a near-term, limited-capability ABM system deployed in Alaska, should minimize Russian concerns of a US BMD breakout.10 On the other hand, amending Article V even in this limited way would set in motion a growing debate on the weaponization of space, particularly in terms of the differentiation of "weapons" from "surveillance" in and from space. This is sure to be an issue of intense multilateral concern.11
  3. NMD and theater missile defense (TMD) components would not be linked, continuing the present agreed constraints.12 TMD would proceed under the current ABM Treaty, as amended by the 1997 Demarcation Agreement that Russia has approved but which has not been submitted to the Senate for its consent. This would probably be the most contentious issue for BMD supporters within the Bush Administration. Nevertheless, joint testing with TMD is not necessary for a vigorous RDT&E program for NMD. In fact, former Senator Sam Nunn and other experts believe that TMD for defense of US military forces abroad should be the prime US deployment effort over the near term.13

The fundamental question now is whether either the US or Russia will propose such a compromise on the ABM Treaty in order to begin the formal process to reach an agreed outcome. The secondary question is whether the Duma would approve and the Senate consent to the resulting ABM Treaty amendments as part of a larger package. The latter is perhaps the easiest challenge since, historically, Republican Presidents have successfully obtained consent to controversial treaties from a Senate under Democratic control.


Conclusion

As of October 2001, the NMD situation remains in flux. The Bush Administration outlined its approach in the summer, but details are still lacking. The Senate Democrats' first review has been skeptical as to both scope and intent to violate the ABM Treaty, but Congressional Democrats acquiesced, in a show of post-September 11 bipartisanship, in providing the funds Bush requested for the fiscal year beginning October 1, 2001. The domestic battle over NMD will almost certainty start anew with the President's programs and budget, to be announced in January 2002. A major unknown is whether the NMD context will include ongoing negotiations with Russia.

Moscow is awaiting a detailed proposal from the Bush Administration on both strategic offensive and defensive forces. Russia's response to the approach laid out here would probably be positive, but only if part of an overall satisfactory approach to both defensive and offensive forces. US allies are, in large part, awaiting Russia's reactions. China remains deeply skeptical of NMD, and particularly TMD in Asia. Under the circumstances, any conclusions are highly tentative.

First, if Bush and Putin signal a willingness to negotiate adaptations and amendments to the ABM Treaty at the summit in November, then intensive negotiations on both offensive and defensive nuclear weapon systems could start early in 2002 and be completed before year end.

Second, China will be deeply suspicious of any US-Russian agreement amending the ABM Treaty that permits RDT&E on "layered defenses", but even more concerned that US missile defense efforts may include TMDs deployed in Japan or, more important, for the defense of Taiwan.

Third, while the threat of US unilateral withdrawal from the ABM Treaty seems lessened for the moment, it will remain in the background. Further, if the US RDT&E program demonstrates the feasibility of one or more BMD programs over the coming years, the US may well insist in 2010, or thereabouts, on the right to deploy NMD at home together with TMD abroad. A new legal regime, or none at all, would be necessary in place of the ABM Treaty.

Over the longer term, of course, the missile defense issue will be heavily influenced by the midterm Congressional elections in November of 2002, followed by Presidential and Congressional elections in 2004, and Congressional elections every November two years into the future. Consistency over time has not been, and is not likely to be, a hallmark of US BMD policy.

FOOTNOTES

  1. Brent Scowcroft, the national security advisor to former President George Bush and now Chairman of the Foreign Intelligence Advisory Board, has stated most forcefully the need to build, and the extraordinary challenge of keeping together, this new international coalition, in "Build a Coalition," Washington Post, October 16, 2001, p. A23.
  2. Prior to September 11, Powell's star in Washington appeared to dim, as recited at length in TIME magazine's cover story that, ironically, was dated September 10.
  3. This included setting out the case against bin Laden and al-Qaeda; see "Britain's Bill of Particulars: [Bin Laden and al-Qaida] Planned and Carried out the Atrocities," New York Times, October 5, 2001.
  4. Quoted in E. J. Dionne, Jr., "Faith-Based Defense," Washington Post, July 27, 2001.
  5. Prepared testimony before the Senate Committee on Armed Services, July 19, 2001.
  6. Coyle and Rhinelander, "NMD Testing Does Not Have to Wreck the ABM Treaty," in World Policy Journal (Sept. 2001).
  7. Former Senator Sam Nunn, now co-chair of the Nuclear Threat Initiative, has recommended that a focus of the Summit should be a course of action ensuring that US and Russian nuclear, chemical and biological weapons materials are "safe, secure and accounted for"; a joint order to US and Russian military to devise operational changes to reduce nuclear risks to near zero; and joint efforts and research against biological weapons. Sam Nunn, "Our New Security Framework," Washington Post, Oct. 8, 2001, p. A23.
  8. The US and Russia will have to determine whether Belarus, Ukraine and Kazakhstan are current parties to the ABM Treaty during any discussions on amendments to it.
  9. The SBIRS-Low program is significantly behind schedule, and in any event the plan is to launch a half dozen or so satellites during a test and evaluation phase. It would take three years to launch a full complement of 24 satellites.
  10. The name of the ABM Treaty could be changed in the process.
  11. The best chronicle of the dream of space weapons is Frances Fitzgerald, Way Out There in the Blue - Reagan, Star Wars and the End of the Cold War (Simon & Schuster, 2000). But dreams never die and this one seems to become even more grandiose; see Jack Hitt, "Battlefield: Space," New York Times Magazine, Sunday, August 5, 2001, p. 3.
  12. This is also the position of Michael O'Hanlon, a noted supporter of deploying limited NMD, as stated in his "Modify ABM Treaty to Allow Limited Missile Defense," Baltimore Sun, Aug. 28, 2001.
  13. See the speech by Sam Nunn, "Toward a New Security Framework," given at the Woodrow Wilson Center, Washington, DC, October 3, 2001.
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