Cold War Relic: The ABM Treaty Is Legally Null and Void

FIFTEEN YEARS AFTER PRESIDENT RONALD REAGAN launched the Strategic Defense Initiative (SDI) to protect the nation from nuclear ballistic missiles, Americans still have no defense against the world’s deadliest weapons. President Reagan’s vision was to replace the dogma of Mutual Assured Destruction, or “MAD,” which called for deterring a Soviet nuclear attack exclusively by the threat of nuclear retaliation, with a strategic and moral revolution. He proposed using America’s advanced technology to destroy enemy missiles in flight, to “save lives rather than avenge them.”

Since 1983 the Pentagon has spent nearly $50 billion on SDI, or later, BMD—ballistic missile defense. But although this investment in anti-missile technology has bought us the capability, the Pentagon still has not deployed a defense against ballistic missiles armed with nuclear, biological, or chemical warheads. And these weapons are spreading among the Saddam Husseins of the world precisely because we have failed to nullify their usefulness by building defenses against them. America remains defenseless, as a matter of deliberate policy. This condition is without precedent in human history—that a great military and economic power, faced with a dire and growing threat and possessing the means to protect itself, intentionally chooses to remain vulnerable.

The primary obstacle to missile defense is the 1972 Anti-Ballistic Missile (ABM) Treaty with the now-defunct Soviet Union. This Cold War relic prohibited each treaty partner from deploying a nationwide missile defense and made unnecessarily costly and highly restricted research and development the only legal activity. When SDI advocates argue for defending America, SDI opponents take cover behind the ABM Treaty.

The fall of the USSR, our erstwhile treaty partner, should have eliminated the ABM Treaty as an obstacle to SDI. But arms control and foreign policy elites, clinging to their old dogmas like pagan priests, have kept the U.S. ensnared in the ABM Treaty even though our legal treaty partner and the Cold War conditions that gave rise to it are long gone. The Heritage Foundation has concluded that the ABM Treaty legally terminated with the end of the USSR and the resulting absence of a bona fide treaty partner. This conclusion is based on a highly authoritative legal brief commissioned by Heritage that looks at both the constitutional law and international law aspects of this unusual situation. That both the Bush and Clinton administrations continued to bind the U.S. to the treaty as a matter of policy in no way alters the compelling fact that legally the treaty is void.

The Clinton administration is so wedded to the concept of deliberate vulnerability that it is attempting to resolve the legal question of the Soviet Union’s successor to the treaty by creating a new ABM Treaty. In a Memorandum of Understanding signed in 1996 in New York, the administration would convert the now-defunct 1972 ABM Treaty into a new, multi-lateral agreement with Russia, Ukraine, Belarus, and Kazakhstan. Clinton’s new ABM Treaty would also codify restrictions on the most promising theater or regional missile defenses that were not explicitly covered in the original treaty.

But Article II, Section 2 of the Constitution, as well as statute law, requires that this new ABM Treaty come before the Senate for its advice and consent. Defense-issue conservatives, those concerned about U.S. sovereignty, and those troubled by Clinton’s evident contempt for the Constitution and law thus have a historic opportunity to join forces and help defeat the new ABM Treaty when the Clinton administration submits the New York agreement to the Senate for its constitutional advice and consent.

It is hard to conceive why a Republican Senate would approve an agreement that would strengthen and perpetuate the obstacle to nationwide defense against ballistic missiles. Moreover, unlike many legislative battles conservatives have fought hard and lost, this one can be won by garnering only 34 votes in the Senate. Simple or veto-proof majorities of both houses are not needed to win a significant political and moral victory. Seldom has the conservative community been presented with such a clear choice and such a historic opportunity. But it is up to those who care about America’s security and the future of constitutional government to work to make sure the Clinton administration does not succeed in implementing the sweeping new restrictions of the New York accords as a mere Executive Agreement.

The new ABM Treaty must come before the Senate for advice and consent in a timely fashion, and the American people, acting through their fiduciary agents in the Senate, must be given the chance to make the clear choice: Shall America be defended, or shall America remain perpetually vulnerable to the growing threat of weapons of mass destruction, “defended” only by a discredited and outmoded treaty?

Mr. Moore is Director of the Kathryn and Shelby Cullom Davis International Studies Center at The Heritage Foundation.