Constitutional drama. Washington's wrangle over the meaning of the ABM Treaty

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A FASCINATING piece of constitutional drama is being played out in the Senate. The broad constitutional issue is whether a president can so reinterpret a treaty that its meaning is altered drastically from the interpretation given the Senate by the president who negotiated the treaty, relied on for ratification, and adhered to since.

This is not merely an argument over policy. The State Department legal adviser insists that the original executive branch statements about the Antiballistic Missile (ABM) Treaty have no standing with the treaty partner. That assertion has aggravated the confrontation with the Senate over restrictions the treaty imposes on Strategic Defense Initiative (SDI) development. Recent statements by negotiators of the treaty have exploded the factual case for the administration's reinterpretation. A constitutional confrontation would be unnecessary and dangerous for the administration.

The Senate Foreign Relations and Judiciary Committees have held hearings on Senate Resolution 167, which declares the traditional interpretation of the Treaty binding on the executive branch. The Senate Armed Services Committee, in a move designed to have immediate consequences, has tucked a provision into the Department of Defense authorization barring use of funds for SDI experiments which the traditional interpretation prohibits.

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The critical Treaty provision is Article V (1), which reads:

Each party undertakes not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based.

In the administration's reinterpretation, that section applies only to technologies already existing in 1972 and to the basic parts of defensive systems then in use - ABM launchers, missiles, and radars. That broad interpretation would allow testing of space-based, including all current SDI, technologies.

The Senate has explored both the facts and the constitutional implications of the reinterpretation. Sen. Sam Nunn, chairman of the Senate Armed Services Committee, after an exhaustive study of the legislative record, found the evidence for the traditional interpretation ``compelling beyond a reasonable doubt.'' He also obtained access to significant portions of the classified negotiating record, despite strong initial opposition from the State Department. Both he and Sen. Carl Levin agree that it, too, supports the traditional interpretation.

Until recently the public had no inkling about those aspects of the negotiating record relied on by the State Department legal adviser for his view that the USSR had not agreed to the traditional interpretation. His position is that the US cannot be bound by more stringent restrictions than mutually agreed to by the parties, regardless of the Senate's understanding at the time of ratification. This position has dubious validity. In international law the actual language of the Treaty is the primary source for interpretation.

But in the climactic hearing on Senate Resolution 167, some sense of the contents of the classified negotiating record became available for the first time.

Several witnesses favoring the traditional interpretation were asked if their view would change if they knew that the Soviets had rejected US-proposed draft language specifically barring devices that might be developed in the future. Sidney Graybeal, a member of the negotiating team, testified that this had indeed occurred. However, he and Victor Karpov, a senior Soviet negotiator, as the working group on Article V, had reached an agreement that prohibited development and testing of future systems. The Soviets had not aquiesced to the US language, but the parties referred to the prohibition in a change in the definition section of the Treaty.

Dr. Graybeal's testimony shows how misleading it can be to rely on a slice out of a negotiating history. The SALT I negotiations, like many others, continued for more than two years. As in most negotiations, the positions of the parties shifted and evolved. The drafters tried different formulas at different times to reduce to treaty language the agreements reached on matters of substance. As Senator Nunn pointed out, no single document constitutes an official negotiating history ... ``[w]hat we have is a variety of documents of uneven quality ... some of them simply notes in the margin.''

The recent State Department release of confidential negotiating documents only proves the point. It does not come to grips with the whole of the negotiating history and its relationship to the Treaty language. Nor was Graybeal consulted by the legal adviser in his formulation of the reinterpretation, although he was the person in the delegation responsible for this very issue. Graybeal stated in open hearing his firm conclusion that the administration's reinterpretation is ``trying to rewrite history.'' He testified that the parties reached the agreement that President Richard Nixon had specifically instructed the delegation to get - a ban on space-based testing of future systems.

The second act of the constitutional drama was the testimony of William Sims, formerly a lawyer in the State Department's legal office. He testified that he was the lawyer in charge of the study of the negotiating record. He found that record compelling in support of the traditional interpretation.

In other words, his study of the negotiating record supports Graybeal's account of the agreement reached with Karpov in the working group. When his conclusions were brushed aside by his superiors, Mr. Sims resigned from the State Department; he cited the ``flawed process'' by which the reinterpretation was accomplished. He was unable, he said, to fulfill his constitutional responsibility to assure that the laws be faithfully executed.

FINALLY, the general counsel of the Arms Control and Disarmament Agency and a Defense Department lawyer, both of whom had made independent studies which came to the opposite conclusion from the reinterpretation, were not permitted to testify at all.

The Senate has painstakingly exposed the weaknesses in the reinterpretation which the legal adviser still tenaciously maintains is ``legally correct.'' Bit by bit the case has crumbled. The analysis of the ratification record first offered in support of the reinterpretation was disavowed by the legal adviser. Now that the relevant portions of the negotiating record have become public, it is apparent that they too were not in accord with the reinterpretation.

The Senate, particularly by the efforts of Senator Nunn and Sen. Joseph Biden to lay bare the historical facts, has acted in accordance with the Senate's constitutional role as partner in the treaty process. These revelations have understandably taken a back seat to the more dramatic confrontation between the executive branch and Congress in the Iran-contra affair.

But the secretary of defense is pressing for early SDI experiments that are only permissible under the reinterpretation. Congress may deal with this executive branch tenacity through its power of the purse. But there may yet be a ``constitutional crisis,'' as Nunn predicted, if the President insists that the understanding of the Senate in giving advice and consent to ratification has no bearing on the meaning of the Treaty.

Antonia Handler Chayes is chairman of Endispute Inc., a dispute resolution firm, and former undersecretary of the US Air Force.

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