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

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.

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.

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