Don't overlook the ABM `scandal'

IN their total focus on the Iran arms affair, Washington watchers are neglecting another story of similar import. It involves the debate over the interpretation of the ABM Treaty in relation to the SDI. While technical and far less dramatic, it raises questions of legal propriety, incoherent policymaking, US credibility, and actual manipulation. Fortunately, Congress is pursuing the issue despite efforts of the administration to stonewall. The dispute concerns the question of how the 1972 ABM Treaty, which outlaws strategic missile defenses with certain exceptions, applies to the SDI program launched by President Reagan in 1983. Reagan has insisted that SDI would be limited to research within the constraints of the ABM Treaty. As traditionally interpreted, that treaty forbids any developments for testing (as well as deployment inferences) of any space-based ABM system like SDI, whatever technology it might use. Research was not forbidden but was not defined.

In its first phase, the SDI program would not be impeded by the ABM constraints, as then construed, but SDI supporters expected that by the 1990s, they would become a roadblock to the development and testing of SDI components and systems which they desired.

In October 1985, the administration revealed that it was reinterpreting the ABM Treaty so that it would not ban the developing and testing of an ``exotic'' space-based ABM system like SDI. The revision was initiated by the Pentagon, but was taken up by Judge Abraham Sofaer, the legal advisor for the State Department who became its chief defender. However, after an interagency struggle the President approved a Shultz proposal, reaffirming the new permissive interpretation as justified, but committing the US to a policy of conforming to the traditional reading in carrying out the SDI program.

Congress at once took exception and held hearings with testimony by negotiators of the ABM Treaty and others and by Judge Sofaer. He sought to support his permissive interpretation by narrowing the treaty definition of an ABM, by selected quotations of various sources and by relying on the classified negotiating record. Demands by Congress for access to that record were at first refused, but after pressure by Senator Nunn and others, finally succeeded.

On Dec. 1, after reviewing the classified record, Senator Carl Levin wrote a devastating letter to Secretary Shultz about the Sofaer interpretation. He charged the legal adviser with distorting the record, ``providing Congress with an incomplete and misleading analysis'' of it, and making assertions which are ``not true,'' or ``wrong,'' or ``a fabrication,'' or defy explanation. He asked the Secretary to request an independent panel to review the issue. On behalf of the Secretary, the Department rejected the criticism, endorsed the new interpretation, and said no independent study was necessary.

Actually, a review of the public materials and the recollection of most of the negotiators does leave one shocked both at the new interpretation and its defense. It seems in conflict with:

The normal reading of the treaty, especially its definition of an ABM system.

The analysis of the treaty submitted to the House; also, the views of the US negotiators.

A fair reading of the testimony of representatives of the JCS and State Department in the ratification hearing;

The understanding of key senators who voted both for and against the treaty.

The Arms Control Impact Statement on the specific issue, filed each year by the executive branch as required from 1978 and through the one for 1985.

This rewriting of the ABM Treaty has serious implications:

1. Under the Constitution treaties become the law of the US. Flouting a treaty violates the duty of the President and officials to uphold the law just as much as an illegal diversion of funds to the contras.

2. This cavalier abolition of the treaty restraints gravely undermines foreign confidence in the reliability of US commitments. It is much more serious than the US charges of specific Soviet violations. And the damage goes far beyond the ABM Treaty.

3. This radical revision of the treaty, if persisted in, could well block a potential agreement for major reductions in nuclear arsenals. Hope may prove unfounded, but it should certainly be tested. That can be done only if the restrictive version of the ABM Treaty is reaffirmed, with specific agreements to clarify the scope of permissible research and testing. Certainly the Soviets will not be satisfied with a mere statement of presidential policy which could be reversed at any time.

4. Finally, the handling of this issue dramatizes once more confusion in policymaking under Mr. Reagan.

Congress is doing a useful service in pursuing this issue. It should persist.

Robert R. Bowie has been concerned with foreign affairs for nearly 40 years on the Harvard faculty, in government posts, and as a consultant.

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