ABM TREATY INTERPRETATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89T00234R000100030020-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 27, 2016
• Document Release Date: January 23, 2013
• Sequence Number: 20
• Publication Date: May 5, 1987
• Content Type: MISC

Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
IIP
111,
S 5930 CONGRESSIONAL RECORD ? SENATE
mediate challenge is preparing those al-
ready on the job for the changing work-
place. "Most of us still think education is
for kids," he said, "(but] it's today's adults
that face the intense competition." It is
their performance that will determine com-
petitive success, "not tomorrow's kids."
At Ford's Yspilanti plant, UAW local
president Bob Bowen echoes the concern for
today's work force and the critical need for
flexibility. "If you have an educated person,
they can adapt to the change," he said,
proudly listing fellow workers who have
signed up to take high school courses in
makeshift factory classrooms. "The only
way we can be competitive is to have the
best workers."
ABM TREATY INTERPRETATION
Mr. McCONNELL. Mr. President,
this morning, during the Senate For-
1?
eign Relations Committee consider-
ation of the State Department author-
ization bill, the members spent the
entire session debating interpretations
of the ABM Treaty. There are sharply
divided views on the committee.
To contribute to the discussion, the
Senate Foreign Relations Committee
minority staff prepared a report enti-
tled, "The Anti-Ballistic Missile
Treaty of 1972: Treaty Formation and
Interpretation Under the Constitu-
tion." I would like to submit the sum-
mary of findings for the record.
I think my colleagues will find this
report a straightforward, fair, and full
presentation of an issue that has been
discussed by some of my colleagues
prematurely and with far too little em-
phasis on the Soviet record of viola-
tions and the Soviet's interest in SDI
research and development. We have
heard from a number of witnesses in
the Foreign Relations Committee who
have raised concerns about what we
might, could, or should not do within
the context of the ABM Treaty terms.
There has been little discussion of the
severe constraints that a new, restric-
tive interpretation would have on the
security of our Nation. There has been
little emphasis on the Soviet's SDI
plans, programs, and goals.
I think the minority staff report is a
useful reminder that this discussion is
not just an abstract legal debate; there
are very real security interests at
stake.
I would like to submit the report's
summary of findings and commend it
to my colleagues for their consider-
ation.
The summary follows:
THE ANTI-BALLISTIC MISSILE TREATY OF
1972: TREATY FORMATION AND INTERPRETA-
TION UNDER THE U.S. CONSTITUTION
(Report of the Minority Staff to the
Committee on Foreign Relations)
INTRODUCTION
Our Administration has stated that the
Soviet Union now has an overwhelming
strategic offensive first strike capability,
and also an emerging nationwide ABM de-
fense. This dangerous strategic imbalance is
demonstrable objectively with unclassified
data, and it presents a grave threat to Amer-
ican national security. It is precisely what
the SALT treaties and negotiation process
wail supposed to prevent.
President Reagan's Strategic Defense Ini-
tiative essentially is our best response to
this Soviet threat, but before the U.S. can
deploy SDI we must first develop and test it.
The Soviets, too, are hard at work on their
own SDI-type systems, and the President
has warned that they may be ten years
ahead of the U.S. in space defenses.
The ABM Treaty has prevented neither a
Soviet nationwide ABM defense, nor a
Soviet lead in SDI-type systems develop-
ment. It should not hinder the United
States from developing our own responsive
SDI either.
The issue is whether the ABM Treaty con-
strains American SDI development and test-
ing. The Soviet interpretation of the treaty
has always been that SDI-type development
and testing is permitted for them, but since
March 1985 they have tried to induce the
U.S. to adopt a restrictive interpretation.
The restrictive interpretation would make
the U.S. SDI merely an endless, wasteful re-
search program, thereby eventually choking
it off and preventing a U.S. response to the
grave Soviet threat. This is why the Soviets
are trying so hard to induce the United
States to adopt the restrictive interpreta-
tion.
The broad interpretation of the ABM
Treaty would permit SDI development and
testing, but not actual deployment. Unfortu-
nately, it is only SDI deployment that will
actually protect us.
The following is the draft SUMMARY of
FINDINGS of a lengthy study by the Mi-
nority Staff to the Senate Committee on
Foreign Relations. The study is entitled The
Anti-Ballistic Missile Treaty of 1972: Treaty
Formation and Interpretation Under the
U.S. Constitution. This carefully researched
study examines the Constitution and the
rules of the U.S. Senate together with the 4
main sources for interpreting a treaty under
international law: the terms of the treaty
Itself; the negotiating record; the ratifica-
tion record; and the subsequent practice of
the parties.
Analyzing the first 3 sources, the study
concludes that the broad interpretation of
the treaty is legally correct, but Soviet sub-
sequent practice in violation of the treaty
gives the U.S. the right to suspend or even
terminate it in whole or in part. Moreover,
the study concludes that a fundamental
change of circumstances also provides a
basis for the U.S. to amend, supplement, or
terminate the treaty.
It would be tragically ironic if, in circum-
stances of Soviet ABM Treaty violations ex-
treme enough to justify U.S. termination of
the treaty, the U.S. instead should decide to
constrain itself unilaterally in such a way
that we were prevented from developing
SDI as a response to Soviet ABM Treaty
break out.
SDI development and testing is vital to
American national survival, and the broad
interpretation is not only legally correct,
but it is also vital to deploying SDI.
II. FINDINGS REGARDING THE AGREEMENT OF THE
TREATY PARTIES
1. The ABM Treaty instruments are con-
sistent with a permissive or broad interpre-
tation of development and testing rights for
ABM systems based on "Other Physical
Principles" (OPP./
2. The ABM Trelity instruments, taken to-
gether, are inconsistent with a restrictive in-
terpretation, by which future-type ABM
system development rights would be limited
to fixed, land-based systems and compo-
nents. If Article II defining ABM system
components encompasses future-type sys-
tems for purposes of Articles III through
IX, then Agreed Statement D exempting de-
velopment and testing of ABMs based on
May 5, 1987
"Other Physical Principals" (OPP) would be
superfluous, in failing to augment Article
III deployment limits. Moreover, Article
V(2) would be defective. Article V(2) limits
development, testing, and deployment of
automatic or semi-automatic systems for
rapid reload of ABM launchers, but does not
address laser or other directed energy sys-
tems with continuous fire capabilities. Thus
the text of Article V(2) implies a scope that
actually excludes future-type or OPP sys-
tems.
3. The negotiating record, properly re-
viewed per Article 32 of the Vienna Conven-
tion on the Law of Treaties, indicates:
(a) the Soviet version of Article II defined
an ABM system as one consisting of the
three conventional components, i.e. ABM in-
terceptor missiles, ABM launchers, and
ABM radars;
(b) the Soviet delegation accepted inclu-
sion of the phrase "currently consisting of"
to precede the list of then-existing ABM
components only upon explicit U.S. assur-
ance that the issue of possible constraints
on future-type or OPP systems would be set-
tled elsewhere than in Article II;
(c) the Soviet delegation recurringly ex-
cluded (or bracketed as non-agreed text) ex-
plicit limitations upon future-type or OPP
ABM systems within the text of current Ar-
ticle V;
(d) Agreed Statement D was the sole tex-
tual agreement regulating future-type or
OPP ABM systems and components; it man-
dated discussions before deployment, but
not before development and testing; and
(e) neither Agreed Statement D nor a re-
ported oral reference to it in January 1972
established a Soviet commitment to limit
future-type of OPP ABM system develop-
ment to fixed land-based systems.
4. The ABM Treaty instruments and nego-
tiating record establish unambiguously that
future-type ABM systems and components
based upon , "Other Physical Principles"
than those embodied in ABM systems exist-
ing in 1972 may be developed and tested
without limit upon their mode of potential
deployment.
5. Future-type or OPP ABM systems or
components may be tested as mobile land-
based, sea-based, air-based, or space-based
systems, so long as a system or component
of a system, and not merely a subcompon-
ent, is "created" subsequent to May 26, 1972
and is based on "Other Physical Principles"
than those of the systems existing on May
26, 1972.
6. Agreed Statement D, together with
Soviet assurances in the course of its negoti-
ation, may be reasonably construed as pre-
cluding post-discussion deployments of
future-type OPP ABM systems without
amendment of the treaty by agreement of
the parties, or by withdrawal from the
treaty after six months' notice of jeopardy
to "supreme national interests" of a party.
7. The Soviet Union may retain a claim-of-
right to deploy ABM systems based upon
"Other Physical Principles" in a fixed-land
based mode after discussion and notice, but
without the consent of the United States.
The Soviets may claim: fulfillment of "the
obligation not to deploy ABM systems and
their components except as provided in Arti-
cle III of the treaty," per Agreed Statement
D; the right to modernize ABM systems per
Article VII; fulfillment of a consultation
duty in the Standing Consultative Commis-
sion per Article XIII; and no need for specif-
ic limitations per Article XIV amendment to
the treaty, beyond the 1974 Protocol.
8. Interpreting the ABM Treaty as pre-
serving development and testing rights for
future-type OPP ABM systems and compo-
nents accords with general principles of
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
CONGRESSIONAL RECORD ? SENATE
May 5, 1987
"I want to be prepaed when it gets here,"
55-year-old Daniel Hughes said of the new
technology.
Hilton H. Schaarschmidt, who uses a com-
puter to distribute automobile parts to be
assembled by other workers, summed up his
choice after more than two decades in the
factory. "If I can't work the computer,
someone else can; I would be back out on
the [assembly] line," he said. "I don't want
to be back out on the line."
RETRAINING WORKERS FOR THE YEAR 2000
Three-quarters of today's work force will
still be working in the year 2000, so the
training and retraining of current workers is
critical in reviving the nation's standing in
the world economy. Many believe that the
next 10 or 15 years will be the period of the
most intense global competition.
"We're going to make it or break it with
these workers," said Pat Choate, director of
policy analysis at TRW Inc. and a noted
author on the subject of American competi-
tiveness.
But for the long term, competitiveness
must rely on the quality of education being
offered in elementary and secondary class-
rooms, to youngsters still years away from
their first paycheck.
"A failure in basic education in 1987 will
be extremely difficult to rectify because of
the very large scale and intense kinds of
technological changes we know will be
taking place in the future," University of
California professor Shaiken said.
American schools, however, are doing
"very poorly" in supplying a broad basic
education, Shaiken said. "Many students
graduate from high school without any
grasp of basic math or reading skills. To the
extent that continues, then competitiveness
is just something you talk about."
Recent studies comparing the mathemat-
ics test scores of American schoolchildren to
their international counterparts support
Shaiken's pessimism. While Japanese
schoolchildren finished first or second in
most categories. American scores ranked in
the middle in comparisons of eighth-grade
arithmetic and algebra skills for 20 coun-
tries. U.S. achievement dropped even lower,
to the botton quarter, in geometry and
measurement. There was similar low per-
formance among American 12th-graders in
algebra and calculus.
"In school mathematics, the United States
is an underachieving nation and our curricu-
lum is helping to create a nation of under-
achievers," according to the Second Interna-
tional Mathematics Study, released this
year.
While most experts put heavy emphasis
on education as a competitive strategy,
there is a minority viewpoint, based primari-
ly on productivity statistics, that plays down
education as a factor.
"I don't think we have strong evidence at
all that losing competitiveness is due to the
lack of a well-education populace," said
Thomas G. Sticht, a San Diego consultant
who has studied the link between literacy
and productivity and participated in a
recent Department of Education study of
literacy. The loss of manufacturing jobs to
workers overseas, he said, is due to the
availability of cheap labor?not to higher
educational levels abroad.
"That has nothing to do with the fact
that somebody can't calculate a percent-
age," he said. Henry Levin, a Stanford Uni-
versity professor in education and econom-
ics, agrees that education is overrated as a
factor in competitiveness. He asserts that
most newly created employment in this
country requires relatively low-level skills in
service sector jobs, such as clerical work or
jobs in the electronics component industry.
Few of the new positions are for engineers
or highly educated technicians.
And while the sophisticated products of
an increasingly high-tech economy may be
designed by a few highly skilled engineers,
the real profits will come when the product
is produced and sold. That will not require a
highly sophisticated work force, Levin said.
"It's easy to talk about education as the
problem . . . [but] what is it about educa-
tion that's going to make a difference?" he
asked. "Education is part of the solution,
but it's not as crucial a solution as people
make it to be."
THE JAPANESE PHILOSOPHY: IMPROVEMENT
Down the road from Ford's Ypsilanti _
building, executives at a new Mazda plant in
Flat Rock, Mich., say they have a very clear
idea of how education can make a differ-
ence.
They want their new employees to be able
to work in teams, to rotate through various
jobs, to understand how their task fits into
the entire process, to spot problems in pro-
duction, to trouble-shoot, articulate the
problem to others, suggest improvements
and write detailed charts and memos that
serve as a road map in the assembly of the
car.
For the Japanese-owned company, it adds
up to a management philosophy modeled on
the Japanese concept of kaizen, roughly
translated as "improvement." That means
that every employee, executive to custodian,
is expected to help find ways to build "the
best car at the lowest price."
"The plant of the past required individ-
uals . . to perform a task within very spe-
cific parameters, very routine," said David
Merchant, vice president for personnel at
the Mazda facility. "The plants of the
future, which are the plants of today, re-
quire people to do a lot more than
that . . . . Education is important in terms
of preparing people to do that."
Merchant is overseeing an extraordinary
effort to create a work force?mostly Ameri-
can?that matches the Japanese philoso-
phy. In preparation for its assembly line to
open this fall, the company is sifting
through more than 96,000 applicants to fill
3,100 hourly positions, using what it says is
the most complex hiring process in the
United States or Canada.
Applicants are given a two-hour written
test in reading, writing and math. They are
interviewed at length, asked to undergo a
medical exam and given a two-step "assess-
ment." Before they complete the process,
successful applicants may have been in the
pipeline for two months and will have spent
up to six hours being observed in discussion
groups and another six hours at a simulated
team assignment, assembling an automobile
part, for example.
The company, which every week tests 600
applicants and interviews and assesses more
than 100, has been "a little disappointed" at
the number of applicants who lack the basic
math and language skills, but nevertheless
has found plenty of qualified people to hire,
Merchant said.
Compare that handpicked batch of fresh
employees to the work force at Ford, where
the average hourly worker has more than 17
years on the job. Financial hard times,
largely due to foreign competition, have cut
the company's hourly work force nearly in
half. The remaining workers are those with
the most seniority, hired at a time when
little attention was paid to education skills
and the rule of thumb for hiring was, as one
union official said, "FBI": friends, brothers.
At Mazda. there has been no need to offer
remedial programs in reading, writing or
math to the hundreds of workers who have
S 5929
so far been hired. But ford and other long-
time employers have found that before they
can retrain, they must help substantial
numbers of employees become literate.
"It's pretty hard to give somebody com-
puter training if they don't have the three
Rs," said Mark Dillon, a spokeman for
American Crystal Sugar Co. in Moorhead,
Minn.
As his company added computerized test-
ing equipment to its sugar manufacturing
process, it became clear that some employes
were unable to read and write and could not
be trained without remedial courses. But
fewer than two dozen employes signed up
for the literacy classes the company began
offering. "It takes a pretty big person to
say, 'I have to learn to read,'" Dillon said.
FIGHTING U.S. FUNCTIONAL ILLITERACY
"Functional illiteracy" among American
aduts often is cited as one of the biggest ob-
stacles in the nation's efforts to improve
productivity. While 95 percent of young
adults are literate, there are large numbers
who fail at more complicated tasks required
to function effectively in most jobs.
A recent survey by the National Assess-
ment of Educational Progress reported that
only 43 percent of Americans in their early
20s could decipher a street map, for exam-
ple.
Donald Fronzaglia, director of personnel
for the Polaroid Corp., said his company be-
cause aware of the literacy problem years
ago when a supervisor was investigating
why the rate of scrap?material discarded as
unusable?had gone up significantly in one
section of the plant.
When the supervisor asked an employe to
demonstrate how he was cutting film into
sections, he found that the worker couldn't
read a tap measure and was throwing away
large sheets of film that could have been
cut into usable pieces. The supervisor even-
tually discovered that other workers lacked
similar basic skills.
Polaroid has introduced literacy pro-
grams, also aimed at preparing workers to
participate more in problem-solving on the
production line. "We believe the people clos-
est to the problem are in the best position
to understand what went wrong," Fronzag-
lia said. "People who don't have [basic]
skills may repeat the same error."
Aside from the challenge of retraining
those on the job, there is the problem of the
growing number of Americans who, largely
because of poor skills, will never find work
or will end up moving from one menial, low-
paying position to another. The financial
drain on society created by this group?in
welfare, drug problems, urban crime and in-
carceration?will have increasingly serious
implications for the nation's economic
health and competitive position, according
to several recent studies.
A report by the National Alliance of Busi-
ness warns of the dramatic change in the
worker pool looming ahead over the next 10
to 15 years.
"Most striking will be the growth of less-
well-educated segments of the population
that have typically been the least prepared
for work," the report said. "The number of
minority youth will increase while the total
number of youth of working age will de-
cline. The number of high school dropouts
will rise as will the number of teen-age
mothers."
The report urged businesses and govern-
ment to improve education, training and re-
training. "No [economic] sector can afford a
growing underclass that cannot get or keep
jobs. . . ."
Despite the dismal predictions, economist
Choate and many others argue that the im-
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23 : CIA-RDP89T00234R000100030020-2
?
May 5, 1987 CONGRESSIONAL RECORD ? SENATE
international law. It preserves a permissive
construction, when a restrictive construc-
tion would impair on an indefinite basis an
attribute of sovereignty, the right of self-de-
fense. It accords with Article 51 of the
United Nations Charter, which codifies the
inherent right of individual and collective
self-defense, and with Article 103 of that
Charter, which precludes impairment of
Charter rights by subsequent treaties.
III. FINDINGS REGARDING RATIFICATION OF THE
TREATY
9. The U.S. Senate gave its advice and con-
sent for the President to ratify the ABM
Treaty without any amendment, reserva-
tion, declaration, or interpretation whatso-
ever intended to qualify the obligations of
the treaty parties as signed by the President
on May 26, 1972.
10. The Senate Rules in effect during con-
sideration of the ABM Treaty were those
for the 92nd Congress. See S. Doc. 92-1.
Review of Rules XXXVI and XXXVII (now
revised as Rules XXIX and XXX) indicates
that the Senate could act only as a body,
whether in the procedures for amendment
to the treaty text in the Committee of the
Whole, or in the procedures for interpreta-
tion of the treaty, namely, by amendment to
the resolution of advice and consent to rati-
fication by the full Senate, per Rule
XXXVII(1). Thus the Rules of the Senate
in effect in 1972, then as now, preclude
amendment, reservation, or interpretation
affecting the obligations of treaty signato-
ries except by action by the Senate as a
body. See Rule XXXVIL
All of the official documents submitted
by, and testimony of the officials presiunp-
tively authorized to bind the United States
In making treaties?the President, the Sec-
retary of State, and the Head of the SALT I
delegation?are consistent with a limitation
of future-type OPP ABM systems before de-
ployment only. Development and testing of
future-type OPP ABM systems and compo-
nents is not prohibited. Moreover, neither in
the treaty instruments submitted by the
Secretary of State and transmitted by the
President, nor in the official testimony of
Secretary Rogers and Ambassador Smith
was there a single statement explicitly limit-
ing development and testing of future-type
OPP ABM systems only to a fixed land
based mode.
12. On June 13, 1972, the President trans-
mitted seven Agreed Statements signed by
the heads of delegation, within the ABM
Treaty instruments. These are within the
scope of the resolution of ratification of
August 3, 1972, and are within the treaty in-
struments exchanged between the two gov-
ernments on October 3, 1972. These Agreed
Statements include Agreed Statement D,
and other agreed interpretations. The
Senate acted upon the ABM Treaty, includ-
ing Agreed Statement D, as a body, in ac-
cordance with Senate Rule XXXVII. Agreed
Statement D establishes a duty, in event
that future-type ABM systems or compo-
nents based on Other Physical Principles
"are created in the future:"
"In order to ensure fulfillment of the obli-
gation not to deploy ABM systems and their
components except as provided in Article III
of the Treaty . . . specific limitations on
such systems and their components would
be subject to discussion in accordance with
Article XIII [establishing the Standing Con-
sultative Commission] and agreement in ac-
cordance with Article XIV [for amendment]
of the Treaty." (Emphasis added.)
13. Senate rules in effect during the 92nd
Congress, as now, require for amendment,
reservation, or binding effect of an interpre-
tation of a treaty more than mere interpre-
tative declaration of either an individual
witness or a member of the Senate in the
course of hearings or during Floor debate,
unless the Senate as a body formally ap-
proves this interpretation by amendment to
the treaty or by reservation contained
within the resolution of advice and consent
to ratification. See Rule XXXVII.
14. Interpretive declarations of witnesses
or members during hearings of the Senate
Committee on Foreign Relations or the
Committee on Armed Services have no
effect upon legal duties under a treaty with
an unqualified resolution of advice and con-
sent to ratification. The main evidence in
the Nunn Report is irrelevant to the role of
the Senate in treaty formation. The Senate
must act as a body, as in the Committee of
the Whole, or as the full Senate, to affect
the obligations under a treaty. The Rules of
the Senate, together with customary prac-
tices under the Rules, as amended, establish
that the internal deliberations of commit-
tees are not authoritative acts of the Senate
for purposes of qualifying obligations under
a treaty pursuant to Senate Rule =VII
(in 1972), now revised as Rule XXX.
15. Where the Senate as a body does not
condition its advice and consent to ratifica-
tion upon an amendment to the treaty, res-
ervation, or qualification of the resolution
of ratification, the internal deliberations of
a Senate committee may have only a supple-
mentary, probative value in ascertaining the
meaning of the terms of a treaty, if the
meaning of the terms in the treaty instru-
ments, as supplemented by the generally
more pertinent preparatory work on the
treaty, remains unclear. Internal Senate de-
liberations may be utilized as supplementa-
ry means of interpretation, per Article 32 of
the Vienna Convention.
16. When the terms of a treaty are ex-
plained by a report of a committee of the
Senate, the report of the committee is nei-
ther binding on the U.S. nor on other par-
ties, but it may constitute a supplementary
means of ascertaining the agreement of the
parties. The Senate Committee on Armed
Services did not even issue a report on the
ABM Treaty. The Senate Committee on
Foreign Relations issued a report in July,
1972. It explicitly treated "future exotic
types" of ABM systems in a brief summary
at pages 3-4. It stated that future exotic
types of OPP ABM systems "may not be de-
ployed even in permitted areas." It specified
for future exotic type ABM systems no limi-
tation on the development or testing, other
than the specific prohibition on deploy-
ment. It relied on the section-by-section
analysis of the Secretary of State that also
identified only a prohibition upon deploy-
ment, not upon development and testing of
future-type exotic or OPP ABM systems.
17. The debate on the ABM Treaty on the
Floor of the Senate occurred subsequent to
inconsistent testimony by officials testifying
before committees: the Secretary of State,
Head of the SALT I delegation, and Chair-
man of the Joint Chiefs of Staff indentified
the deployment phase as the first prohibit-
ed phase regarding future-type OPP ABM
systems or components, without specifying
any limitation on development and testing
or of the permitted mode of basing of OPP
ABM systems being developed and tested.
These were the most authoritative wit-
nesses, because two of them has the author-
ity to bind the United States in the negotia-
tions.
In contrast, hand corrected testimony of
Dr. John S. Foster, a written response to
supplemental questions to defense Secre-
tary Laird, and various other statements of
witnesses indicated that some Executive
Branch officials who were not present at
the negotiations considered that the Soviet
government had acquiesced In limiting de-
S 5931
velopment and testing of future-type OPP
ABM systems and components to a fixed
land based mode.
18. Notwithstanding notice of alternative
Interpretations of rights and restrictions
upon future-type OPP ABM systems, no
member of the Senate among the 90 mem-
bers present and voting on the ABM Treaty,
proposed an amendment to the treaty itself,
a ? reservation, binding interpretation, or
other amendment to the resolution of
advice and consent to ratification. The reso-
lution of advice and consent to ratification
passed by a Senate vote of 88 to 2 on August
3, 1972.
19. By passing a "clean" resolution of rati-
fication, the Senate had no reason to and
did not instruct the President to communi-
cate any particular interpretation of the ob-
ligations under the treaty respecting future-
type OPP ABM systems. Even had the
Senate acted as a body to qualify its consent
to ratification, which it did not, the failure
to communicate that qualification to the
President, and from the President to the
other treaty party, would have the effect of
deleting the qualification from the treaty
obligations.
It was, in 1972, settled law that a proviso
adopted by the Senate to qualify a treaty, if
excluded from the instruments of ratifica-
tion, and not communicated to the other
treaty party, will have no legal effect on the
other treaty party. This is still settled law
today.
See New York Indians v. U.S. 170 U.S. 1 at
23 (1897). The same lack of legal effect re-
sults from later enactment of a resolution of
the Senate attempting to reinterpret a pre-
viously-ratified treaty: "It cannot be regard-
ed as part of the treaty, since it received nei-
ther ther approval of the President nor the
consent of the other contracting power. . .
Obviously, the treaty must contain the
whole contract between the parties, and the
power of the Senate is limited to a ratifica-
tion of such terms as have already been
agreed upon between the President, acting
for the United States, and the [representa-
tives] of the other contracting power. The
Senate has no right to ratify the treaty and
Introduce new terms into it, which shall be
obligatory upon the the other power, al-
though it may refuse its ratification or
make such ratification conditional upon the
adoption of amendments to the treaty." See
Fourteen Diamonds v. U.S., 183 U.S. 176 at
182, 183 (1901) (Brown, J., concurring opin-
ion). As Professor Louis Henkin wrote in
1972: -Attempts by the Senate to withdraw,
modify, or interpret its consent after a
treaty is ratified have no legal weight; nor
has the Senate any authoritative voice in in-
terpreting a treaty or terminating it." (For-
eign Affairs and the Constitution, page 136,
emphasis added.) Where a foreign party to a
multillateral convention has failed to trans-
mit the act of its legislature, even when the
legislature has acted as a body to qualify
the applicable provisions of the (Warsaw)
convention, a U.S. court will apply the
terms of the treaty without the legislative
qualification. See Kelly v. S.A. Beige, 242 F.
Supp. 129 (1965) at 141-142. Moreover, a for-
eign government's insistence upon an inter-
pretation of a treaty provision, not officially
transmitted to U.S. treaty negotiators, will
not be considered by a U.S. court. See sit/U-
m/it v. Kidd, 254 U.S. 433, 442 (1921).
20. Only two members of the Senate, both
of whom were among the 88 who voted af-
firmatively to give advice and consent to
reatification, mentioned future-type OPP
ABM systems during the floor debate. Nei-
ther of the two Senators who mentioned
possible treaty effects on development and
testing of future-type OPP ABM systems
neclassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
S 5932 CONGRESSIONAL RECORD ? SENATE
relied upon his understanding of this issue
as a basis for voting to ratify the treaty.
Senator Hiram L Fong of Hawaii ex-
pressed support for the ABM Treaty and
the SALT I Interim Agreement. Senator
Fong expected that research and develop-
ment was allowed, "but not the deployment
of exotic or so-called future systems." Sena-
tor Fong expressed an interest in extensive
arms limits, not in reliance upon but despite
the perception of a permissive development
regime for future-type OPP ABM systems.
Congressional Record, pp. 5-26707, 26708,
August 3, 1972.
Senator Strom Thurmond of South Caro-
lina expressed support for the ABM Treaty
In spite of the Senator's perception of a re-
strictive regime for exotic future-type OPP
ABM systems. Senator Thurmond identified
as a drawback of the ABM Treaty a per-
ceived limit on developing "new kinds of sys-
tems to protect our population. The most
promising type appears to be the laser type,
based on entirely new principles. Yet we
forego forever the ability to protect our
people." Congressional Record, S-26700,
August 3, 1972. Senator Thurmond ex-
plained his vote in favor of the ABM Treaty
despite, not because of, his perception of de-
velopment and deployment limits on future-
type OPP ABM systems: "It is my judgment
that, on balance, the ABM Treaty should be
approved despite the drawbacks. I cite the
negative side so that we do not enter into
this treaty in a state of euphoria." S-26700,
August 3, 1972.
Thus in the Senate Floor debate, only 2
out of the 88 Senators who voted affirma-
tively on the ABM Treaty specifically refer-
enced development of future-type OPP
ABM systems. The public record indicates
that neither of the two Senators consider-
ing this issue voted affirmatively in reliance
upon either restrictive or permissive condi-
tions for mobile or space-based "exotic"
future-type OPP ABM systems. Senator
Fong favored the ABM Treaty despite a per-
ceived permissive development regime. Sen-
ator Thurmond favored the ABM Treaty de-
spite a perceived restrictive development
regime.
The only Senator shown by the Floor
debate to have possibly relied upon a re-
strictive regime, Senator James L. Buckley,
voted against ratification. But Senator
Buckley had already announced his "grave
misgivings" about the SALT I agreements
before "future system" limits were publicly
identified. See The New York Times, May
27, 1972, pp. 1-8. Because Senator Buckley's
oppostion to the ABM Treaty preceded the
very limited Senate consideration of future
system development issues, this is scarcely
strong reliance. The Congressional Record
for August 3, 1972, at S-26700, indicates
Senator Buckley's greater concern that
future-type OPP ABM systems might not be
legally deployed than that they not be de-
veloped. Both the restrictive and permissive
Interpretations ban deployment. Either way,
Senator Buckley opposed the ABM Treaty.
This is scarcely evidence of reliance on the
issue of future systems by Senators who
voted the opposite way and who did not
mention future systems in the Floor debate.
21. If the only two affirmatively-voting
Senators who mentioned the future system
development issue took opposite positions
on what the treaty allowed, and voted in
favor of the ABM Treaty despite their views
on this obscure issue, what does this imply
about the degree of reliance by the 86 af-
firmatively-voting Senators who failed to
mention the development of future-type
OPP ABM systems during the Floor debate?
It strongly suggests that the 86 Senators
who were silent on this future systems issue
did not indicate any reliance upon it in cast-
ing their affirmative votes.
22. The clear inattention to exotic ABM
technology, which Henry A. Kissinger,
former Assistant to the President for Na-
tional Security, said was regarded in 1972
like "science fiction," was part of a general
Inattention to the details of the entire ABM
Treaty on the part of the Senate as a body.
The entire summary of treaty provisions oc-
cupied only two pages in the SALT I Report
of the Senate Committee on Foreign Rela-
tions. Most of the Senate's attention was fo-
cused on the merits or demerits of a defense
of the national capital, and the effects of
limiting strategic offensive weapons under
the Interim Agreement.
23. Senate Majority Leader Mike Mans-
field summarized the clear lack of concern
for ABM Treaty effects and the lack of
Senate interest in studying, debating, or in-
terpreting the treaty during the Floor
debate of August 3, 1972.
"We are considering one of the most im-
portant treaties to come before this body in
a good many years. Yet, there seems to be
little interest on the part of the member-
ship to discuss the pending business. We will
have to twiddle our thumbs and wait for the
expiration of the time limit unless . . .
[members] undertake their constitutional
responsibility." Quoted in H. Purvis and S.J.
Baker, Legislating Foreign Policy, Boulder,
Colorado: Westview Press, 1984, pp. 162-163.
24. To characterize the views of Senators
and Executive Branch witnesses as "unani-
mous" in supporting a restrictive interpreta-
tion, as Senator Biden stated on March 11
and 26, 1987, is to seriously misrepresent the
entire ratification process.
25. To characterize the inaction of the
Senate as a body as "reliance" upon a re-
strictive view of rights, as does the Nunn
Report of March 1987, is to misconstrue the
actions of the Senate on the ABM Treaty.
The Senate neither amended, reserved, or
conditioned its advice and consent to ratifi-
cation upon any view of future-type OPP
ABM systems.
26. The Senate Committee on Foreign Re-
lations in its July 1972 report did at least
assert that exotic future-type OPP ABM
systems "may not be deployed even in per-
mitted areas." (Emphasis added.) Senators
may have relied upon this report in consent-
ing to ratification of the treaty. There was
no contrary testimony, in contrast to posi-
tive assertions stating the permissibility of
developing and testing mobile ABM systems
and components based on Other Physical
Principles.
27. In the event of perceived ambiguity re-
garding the scope of Agreed Statement D,
the duty of good faith incumbent upon all
treaty parties may lead the U.S. to interpret
Agreed Statement D as prohibiting deploy-
ment of future-type OPP ABM systems
unless a party suspends or withdraws from
the treaty, the parties amend its terms, or
the U.S. ascertains through review In the
Standing Consultative Commission that the
Soviet Union reserves a claim to deploy
future-type systems in the one permitted
land based ABM area.
IV. SUBSEQUENT PRACTICE AFFECTING TREATY
OBLIGATIONS
28. Subsequent practice of the parties in-
cludes amendment of the ABM Treaty by
the Protocol of 1974 (restricting each side to
a single deployment area), and by Agreed
Statements in October 1978 and June 1985
(affecting concurrent SAM-ABM missile and
radar testing and duties pertaining to Arti-
cle VI on ABM-mode testing constraints).
These agreements establish a practice of
modifying treaty rights and duties only by
express written agreement. These agree-
May 5, 1987
ments do not materially affect interpreta-
tion of the right to develop future-type OPP
ABM systems.
29. There has not been subsequent prac-
tice in the application of the treaty which
establishes the subsequent agreement of the
parties regarding interpretation of Articles
III and V, and Agreed Statement D, per
Vienna Convention Article 31(3)(b).
30. Subsequent statements proximate to
treaty ratification by officials presumptively
authorized to represent and bind the U.S.
government?the President, the Secretary
of State, and the Head of the SALT I dele-
gation?are consistent with a permissive
(broad) interpretation of ABM development
rights for future-type OPP ABM systems.
31. A Statement "on behalf of the Soviet
government" proximate to treaty ratifica-
tion by the Presidium of the USSR on Sep-
tember 29, 1972, expressly rejected unilater-
al U.S. declarations interpreting SALT I ob-
ligations during the U.S. ratification proc-
ess. Pravda reported on September 30, 1972
the proceedings before the closed meeting
of the Presidium of the USSR in the Krem-
lin on September 29th:
V. V. Kuznetsov, First Deputy Foreign
Minister, stated "on behalf of the Soviet
government"
"At the same time, to this day there are
political figures in the United States who
continue to insist on pursuing 'from a posi-
tion of strength' policy with regard to the
Soviet Union. During the discussions of the
Soviet-U.S. agreements in the United States,
these figures advanced various far-fetched
'conditions' and 'interpretations' for the
agreements which had already been signed,
thus intended to obtain one-sided advan-
tages for the United States . . . The treaty
and the interim agreement need no far-
fetched interpretations or conditions. It is
Important that the clauses of the agree-
ments which have been concluded be stead-
ily implemented in both their letter and
their spirit." Pravda, September 30, 1972,
PP. 1-2.
This top level Soviet statement also sug-
gests that the USSR would have rejected
any U.S. attempts to condition ratification
of the treaty in any way, just as Soviet ne-
gotiators had repeatedly rejected U.S. at-
tempts to restrict development and testing
of future-type OPP ABM systems.
32. Other Soviet official statements, sub-
sequent to the ABM Treaty signing but pre-
ceding ratification, are consistent with a
permissive, broad interpretation of future-
type OPP ABM development and testing
rights. During U.S. Senate consideration of
the ABM Treaty, on June 21, 1972 the
USSR Ministry of Foreign Affairs signed to
press an article apparently written by Victor
Viktorovich Shustov, an official of the
Soviet Ministry of Foreign Affairs. The arti-
cle appeared under Shustov's usual pseudo-
nym, V. Viktorov, and was entitled "Agree-
ments of Historic Importance." The "Vik-
torov" article, published in Mezhdunarod-
nays zhizn [International Affairs], Number
7, July 1972, at pp. 18-27, contained a para-
graph which referred to "the emergence
[poiavlenid] of new deployed ABM sys-
tems." An inference could be drawn that
new ABM systems might "emerge" until the
stage of deployment. An alternative transla-
tion of the Russian word "poiavlenid" is the
word "appearance," in the context of the
Initial appearance of the fully developed
system. Either of these translations is con-
sistent with a permissive interpretation of
the future-type OPP ABM system develop-
ment issue:
"The significance of the Soviet-U.S. SALT
accords signed in Moscow is exceptionally
great. These documents are primarily an ex-
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
May 5, 1987 CONGRESSIONAL RECORD ? SENATE
pression of the sides' intention to avoid a
new round in the nuclear missile arms race.
Consistent implementation of these accords
will prevent the emergence [poiavlenid] of
new deployed ABM systems. This in turn
will considerably reduce the incentive to de-
velop more sophisticated types of offensive
weapons. These would inevitably appear if
ABM systems developed without restriction
since the desire constantly to improve ABM
defense would lead to a situation in which
the arms race process would continue to
gather momentum uncontrollably."
Later, during the Soviet Presidium's con-
sideration of the ABM Treaty preceding
their vote recommending ratification on
September 29, 1972, Soviet Defense Minister
Grechko asseted:
"[The ABM Treatly] imposes no limita-
tions on the performance of research and
experimental work aimed at resolving the
problem of defending the country against
nuclear missile attack . . ." (Emphasis
added.)
In The Washington Post on September 30,
1972, Robert Kaiser wrote an article which
placed the Senate on notice, three days
before the exchange of instruments of rati-
fication, of the prospect that the Soviet
Union had a rationale for a permissive inter-
pretation of future-type OPP ABM develop-
ment and testing rights:
"Grechko's curt remark does not provide
enough evidence to say whether the Soviets
now have another interpretation. It is possi-
ble that the Soviet defense minister was
only reassuring hardliners here [in Moscow]
that research and development on all kinds
of weapons will continue ..."
33. Excepting official statements proxi-
mate to ABM Treaty ratification, which
provide supplemental evidence consistent
with the permissive interpretation of the
treaty, subsequent abstract statements that
precede the actual "creation" of new ABM
systems or components lack the practical
foundation by which to infer practical con-
struction of the treaty. Agreed Statement D
is contingent for its application upon the
future occurrence of a condition subse-
quent, i.e. creation of future-type OPP ABM
systems or components.
34. Between May 1972 and June 1985
there is no record of official Soviet refer-
ence to or legal analysis of Agreed State-
ment D in open, unclassified publications.
As evidenced by a letter from Ambassador
Henry Cooper placed in the CONGRESSIONAL
RECORD by Senator Quayle, as recently as
March 1985 the Soviet Union tabled a draft
arms control treaty to limit weapons in
space, indicating that in the Soviet view the
ABM Treaty did not heretofore prohibit de-
velopment and testing of ABM systems or
components of future types in a space-based
mode.
35. Official Soviet statements since May
1985 indicate official Soviet interest in
adopting, after 13 years of protecting their
own right to develop and test mobile future-
type systems, a restrictive interpretation of
rights to develop and test ABM systems and
components based on "Other Physical Prin-
ciples," at least as it would apply to the U.S.
36. Official U.S. statements in the period
1978 to 1984, in connection with Arms Con-
trol Impact Statements prepared by the
U.S. Arms Control and Disarmament
Agency, indicate either a disruption of insti-
tutional memory of the failure to obtain
Soviet agreement upon a restriction of
future-type OPP ABM system development
rights, or an effort on the part of some U.S.
Executive Branch officials to extend restric-
tions upon future-type OPP ABM systems
to accomplish what the ABM Treaty nego-
tiators failed to accomplish between 1969
and 1972 during the negotiations. But even
these official U.S. statements in the period
1978 to 1984 are not indicative of an intent
by the U.S. government to modify the terms
of the ABM Treaty, or to bind the U.S. uni-
laterally to more restrictive obligations than
apply to the Soviet Union.
37. Establishment of the U.S. Strategic
Defense Initiative Organization (SDIO) in
1984 created conditions under which ABM
development rights had a potential practical
impact, and was a precondition to U.S. prac-
tical construction of the ABM Treaty's
Agreed Statement D.
38. Commencing with Department of De-
fense initiatives to review ABM develop-
ment rights in 1984-1985, the Reagan Ad-
ministration commenced the assembly of
ABM Treaty negotiating records in January
1985, and initiated review of the ABM
Treaty obligations in 1984-1985. In October
1985 the Legal Adviser in the Department
of State completed a preliminary review of
the ABM Treaty instruments and the nego-
tiating record, and concluded that a permis-
sive or broad interpretation of development
and testing rights for future-type OPP ABM
systems was supported by that record.
39. In August 1986 the President reviewed
a supplemental memorandum of the De-
partment of State Legal Adviser on the
S 5933
ABM Treaty. The President decided to pro-
vide the U.S. Senate access to the negotiat-
ing records of the ABM Treaty, pursuant to
the request of Senator Sam Nunn and mem-
bers of the Committee on Foreign Rela
tions, following passage of an amendment to
the Defense Authorization Bill to compel
the production of documents.
40. Following review of the negotiating
record, and concurrent with the release of
the first installment of the 157 page Nunn
Report on ABM Treaty interpretation on
March 11, 1987, Senator Joseph Biden intro-
duced S. Res. 167, which if enacted would
bar recourse to the ABM Treaty negotiating
record to ascertain the meaning of the
terms, or any special meaning given to a
term, in contradiction of Article 31(4) and
32 of the Vienna Convention on the Law of
Treaties and the incorporation of customary
international law in the U.S. Constitution.
V. SUBSEQUENT SOVIET PRACTICES IN VIOLATION
OF THE ABM TREATY PROVIDE THE UNITED
STATES THE RIGHT TO SUSPEND OR TERMINATE
THE ABM TREATY IN WHOLE OR IN PART
41. Practices of the Soviet Union subse-
quent to ratification of the ABM Treaty in
1972 constitute evidence of an expanding
pattern of Soviet violations of ABM Treaty
duties. The Soviet Union embarked upon
concurrent testing of ABM and air defense
system components virtually from the
outset of the ABM Treaty's ratification.
The Soviets demonstrated a capability for
rapid relocation of a moveable ABM-3 type
radar, the Flat Twin, quickly moving it from
Sary Shagan to Kamchatka in 1975. The So-
viets continued development work on move-
able radar systems with ABM applications.
Even before signing the SALT II Treaty in
1979, the Soviet government had underway
a program to construct the large ABM radar
near Krasnoyarsk, in violation of Article
VI(b) of the ABM Treaty. This radar was
completed externally in 1986, after fruitless
U.S. diplomatic efforts to induce a halt in
its construction.
42. A variety of activities, some legal and
some almost certainly illegal, suggest Soviet
provision of a base for the defense of the
national territory of the Soviet Union, even
while some members of the Senate propose
to restrict unilaterally the U.S. testing and
development of future-type OPP ABM sys-
tems and components.
43. Official unclassified findings of Soviet
violations of the ABM Treaty are summa-
rized in the following table:
PRESIDENTIAL REPORTS TO THE CONGRESS ON SOVIET NONCOMPLIANCE WITH THE ANTI BALLISTIC MISSILE TREATY OF 1972
Issue CAC report, Dec. 2, 1983
President
Jan. 23, 1984 Feb. 1, 1985
Dec. 23, 1985
Mar. 10, 1987
Overall assessment Potential violation May be preparing defense of national Continuing concerns; may be pre-
territory. paring defense of national tern.
tory.
Deployment of Krasnoysrsk radar Violation Almost certainly a violation Violation Violation; no corrective action Violation; appeared to be completed
externally in 1986.
Mobility of ABM components FLAT PNIN radar move; violation Potential violation Potential violation Potential violation Potential violation.
Concurrent testing of ABM and air Highly probably violations Highly probably violations Highly probably violations.
defense components.
ABM capabilities of medern SAkts SA-8-12 may have some ABM capabil- Evidence insufficient.
Rapid reload of ABM launchers Classified report Serious cause for concern Serious cause for concern; legal
Deliberate concealment measures Violations
ambiguity.
10 1987. Sources: Report by the President to the Congress of October 10, 1984, summarizing the GAC Report of Dec. 2, 1983; Reports by the President to the Congress on Soviet noncompliance. Jan. 23, 1984, Feb. 1, 1985, Dec. 23. 1985, and Mar.
.
44. The United States has the right to sus-
pend or terminate, in whole or in part, the
ABM Treaty as a consequence of acts of the
Soviet Union that defeat an essential object
or purpose of the treaty, as provided by Ar-
ticle 60 of the Vienna Convention on the
Law of Treaties.
45. The United States has the further
rights to withdraw from the ABM Treaty in
event that "extraordinary events" jeopard-
ize its "supreme interests," per Article
XV(2) of the ABM Treaty.
46. The United States has the right to
defer withdrawal from the ABM Treaty
while seeking through negotiations the ces-
sation of ongoing illegal Soviet activities;
the United States may preserve its right to
withdraw from the treaty as a consequence
of material breach.
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
IIP 1111P
S 5934 CONGRESSIONAL RECORD ? SENATE
VI. A FUNDAMENTAL CHANGE OF CIRCUMSTANCES
(REBUS SIC STANTIBUS) PROVIDES A BASIS TO
AMEND, SUPPLEMENT, OR TERMINATE THE
TREATY
47. Article 62 of the Vienna Convention on
the Law of Treaties permits a party to
invoke as a ground for terminating or with-
drawing from a treaty a "fundamental
change of circumstances" in accordance
with the doctrine of rebus sic stantibus. The
existence of the circumstances which have
changed must have "constituted an essen-
tial basis of the consent of the parties to be
bound by the treaty;" and "the effect of the
change" must be "radically to transform the
extent of obligations still to be performed
under the treaty."
48. A statement of the Head of the U.S.
SALT I delegation, Ambassador Gerard C.
Smith, on May 9, 1972, is evidence that an
essential basis of the ABM Treaty, on the
U.S. side, was the continuing efficacy of lim-
itations on strategic offensive arms, so as to
"constrain and reduce on a long-term basis
threats to the survivability of our respective
strategic retaliatory forces."
49. Soviet evasion of SALT I Interim
Agreement limits on "heavy" ICBM deploy-
ments between 1972-1979, Soviet augmenta-
tion of strategic offensive forces between
1972-1979, Soviet creation of an overwhelm-
ing first strike counterforce threat, Soviet
maintenance since 1985 of strategic nuclear
delivery vehicles in excess of those agreed
for SALT II, Soviet violations of the qualita-
tive limits of SALT II, and the termination
of SALT II as a political commitment by
reason of Soviet treaty violations in May
1986, preclude "the survivability of our stra-
tegic retaliatory force" with the ABM
Treaty limits established in 1972, and fur-
ther limited by the ABM Protocol of 1974.
50. The failure of the parties to the ABM
Treaty to further constrain and reduce on a
long-term basis threats to the survivability
of the respective strategic retaliatory forces
constitutes a fundamental change of cir-
cumstances essential to safeguarding the
purposes of the ABM Treaty itself.
51. Systematic Soviet evasion of ABM
Treaty provisions intended to preclude
covert or rapid overt deployment of illegal
ABM systems, constitutes a further and
fundamental change of circumstances essen-
tial to achieve ABM Treaty purposes. Soviet
acts that defeat the confidence building
purposes of the ABM Treaty include: con-
current testing of strategic surface-to-air in-
terceptor missiles and radars in an ABM-
mode with ballistic missiles and ABM
system components; the deployment of
more than ten thousand SAM systems that
are largely mobile and that some Soviet offi-
cials admit can intercept ICBMs; the de-
ployment and ongoing construction of per-
mitted large phased array radars (LPARs)
on the periphery of Soviet territory, but
with redundant, overlapping, and internet-
ted coverage and potential or actual roles in
ABM battle management and the deploy-
ment of an illegal LPAR near Krasnoyarsk.
Timely warning of the provision of an ille-
gal base for the illegal defense of national
territory can no longer be assured as a con-
sequence of the concurrent development,
testing, and deployment of long-lead time
components of Soviet systems that may be
or become part of a territorial defense of
the Soviet Union against ballistic missiles.
52. On the U.S. side, the Strategic Defense
Initiative research program indicates the
potential feasibility of developing technolo-
gy and systems that may provide the means
for exercising the right of national self-de-
fense. The right of self-defense is inherent
in national sovereignty and customary inter-
national law as codified in Article 51 of the
United Nations Charter. The potential feasi-
bility of developing future-type ABM sys-
tems that include components based on
"Other Physical Principles" than those of
ABM systems in existence when the ABM
Treaty was signed may constitute a funda-
mental change of circumstances.
53. The inability to constrain and reduce
threats to the survivability of strategic re-
taliatory forces, the inability to provide reli-
ability warning of covert or rapid overt de-
ployment of Soviet ABM systems as a conse-
quence of acts not expressly banned by the
ABM Treaty, together with concurrent test-
ing that is irreversible, and the potential
feasibility of developing ABM systems based
on "future-type" OPP ABM technology, al-
together constitute fundamental changes of
circumstances since the signing of the ABM
Treaty fifteen years ago.
54. The aforementioned fundamental
changes in circumstances provide the policy
and legal basis for amending, supplement-
ing, or terminating the ABM Treaty for the
purpose of strengthening international se-
curity in future decades.
PRELIMINARY RECOMMENDATIONS
1. Unless unequivocal information is re-
ported by the Legal Advisor of the Depart-
ment of State, contradicting the findings of
the August 1986 report indicating failure of
the contracting parties to restrict, in 1972,
rights to develop mobile ABM systems or
components that are based on "Other Phys-
ical Principles," the United States should
adopt a permissive or broad interpretation
of ABM Treaty development and testing
rights.
Various objectives may be served by
adopting a permissive or broad interpreta-
tion of the ABM Treaty:
(a) The Strategic Defense Initiative Orga-
nization and the military services can design
a test program for the purpose of demon-
strating system performance with lesser ex-
penditure of time and funds if ABM Treaty
development rights for mobile and space-
based development and testing for future-
type OPP ABM systems are exercised;
(b) The President has already placed on
the bargaining table a proposal to defer
ABM system deployment until 1996. Adop-
tion of a permissive interpretation of devel-
opment and testing rights as fully in accord
with the treaty obligations agreed upon in
1972, strengthens the credibility of the
President's proposal during ongoing arms
control negotiations; and
(c) Adoption of a legally correct interpre-
tation of the ABM Treaty signals to the
Soviet Union that its increasingly brazen
pattern of expanding ABM Treaty viola-
tions will not, by intimidation or threat of
further violations, cause the United States
to impose upon itself a policy of unilateral
vulnerability.
2. The Senate should request that the
President expedite determination of criteria
that distinguish "Other Physical Principle"
future-type ABM systems from current type
ABM systems.
The President should advise the Senate
regarding whether an ABM system that
relies upon one component that was not in
existence as of May 26, 1972 qualifies the
entire AMB system as an OPP system.
3. The Senate should recommend to the
President declassified publication of:
(a) ABM Treaty negotiating records per-
taining to development, testing, and deploy-
ment rights for ABM systems and compo-
nents based on "Other Physical Principles";
and
(b) A history of the SALT I negotiations,
encompassing both the ABM Treaty and
the Interim Agreement, and their integral
links and interdependence.
May 5, 1987
4. Bearing in mind that the President and
the Senate have a shared responsibility to
assure that the treaty making process estab-
lishes mutuality of obligations, the Senate
should reject proposed legislation (e.g., S.
Res. 167) designed to preclude use of treaty
negotiating records even though other
treaty parties may use them to assert rights
or purported obligations of the United
States, in accordance with Article 32 of the
Vienna Convention on the Law of Treaties.
5. To fulfill its constitutional responsibil-
ities in treaty making, the Senate should
review all treaties before it to ascertain
whether a qualification of the resolution of
advice and consent to ratification is re-
quired. The Senate should condition or
qualify its consent to ratification in a
manner that:
(a) is legally binding;
(b) assures mutuality of obligations;
(c) provides timely notice to treaty parties
through the exchange of instruments of
ratification; and
(d) does not forego the Senate's responsi-
bility to advise and consent by prior ratifica-
tion of Incomplete treaties.
Ever since President Polk sought prior
ratification of a treaty to establish the
Oregon boundary in 1846, if not earlier,
presidents have sought prior ratification of
a treaty, even when a condition has not
been fulfilled or an instrument is not yet
agreed. See S.B. Crandall, "Treaties: Their
Making and Enforcement," at pp. 67-72
(2nd edition, 1916). If the Senate is to meet
Its constitutional responsibility, as with the
Threshold Test Bank Treaty now before it,
it should insist upon the completion of all of
the essential treaty instruments including a
new Protocol on verification before render-
ing its advice and consent.
6. The Senate may, from time to time, re-
quest that its members serve as observers
during treaty negotiations. It may, from
time to time, request access to the treaty ne-
gotiating records. It should, without excep-
tion, obtain a detailed section-by-section
analysis of any treaty transmitted for advice
and consent to ratification. Ultimately, the
Senate and the President depend upon the
good faith conduct of the two branches of
government, in the exercise of a shared
power.
7. To preserve and strengthen the role of
the Senate in treaty formation, it is essen-
tial that the Senate respect its own rules for
the ratification process: Rule =WU as it
applied to the ABM Treaty in 1972, and
Rule XXX in effect today have safeguards
for qualifying consent to ratification of a
treaty, so that all treaty parties are on ex-
press notice of whether and how the Senate
has modified the treaty obligation that the
President may elect to ratify. The action
that counts under the Senate's own rules is
not the testimony before committees, but
the reduction of proposed qualifications in
the form of an amendment to the treaty
itself, or an amendment or reservation to
the resolution of ratification. Only by faith-
fully applying its own rules can the Senate
facilitate "the restoration of constitutional
balance in the making of the foreign com-
mitments" that the Senate, by S. Res. 85 in
the 91st Congress declared to be "not only
compatible with the requirements of effi-
ciency, but essential to the purpose of de-
mocracy.",
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
S 3962 CONGRESSIONAL RECORD ? SENATE
some of the loaves rectangular, some round-
ed like a soccer ball sawed in half.
Cohen throws ingredients into a big me-
chanical vat that looks vaguely like a
cement mixer. "Anybody can bake bread,"
he says almost scornfully. "Put it in the
oven, wait awhile, take it out. Making the
dough is difficult." A bucketful of eggs,
pails of water, bag after bag of flour, a
scoop of yeast, a dose of straight gluten to
improve the dough's elasticity. He works
from a recipe in his head, varying the quan-
tities as he goes. He depends on his estima-
tion of the qualities of the ingredients and
the current temperature, humidity, and?
for all I can tell?the state of his psyche.
"I'm not a baker," Cohen says. "I bake
bread, but I do it by the seat of my pants.
Over at Nissen's, they're the real bakers.
You want to get a real story, go over to Nis-
sen's. They have formulas and big machines
and controls. When something goes wrong
with the dough, they know why and how to
fix it. When Something goes wrong with my
dough, I have to guess at the problem and
fix it by trial and error." What he doesn't
say is what all aficionados of Jewish rye
know: a mechanized bakery produces a
mechanized loaf. A loaf of rye from the
Bangor Rye Bread Bakery has guts.
Short, stocky, stoop-shouldered, with fore-
arms like Popeye and hands like a peasant,
Reuben Cohen drags himself around the
bakery like an automaton, his face expres-
sionless. "How long have I been doing this?"
he asks. "Since 1929. I started out with my
father and uncle. We had a different bakery
up the street, the New York Model Bakery.
We bought this business in 1936."
Cohen's father was a Russian Jew who
emigrated to New York, then Boston, finally
Bangor. Reuben was born in New York, vis-
ited Russia with his family as a tiny boy,
but basically grew up in Bangor. "I don't
know why we came here," he says. "Maybe
they needed bakers." The entire family
worked in the bakery: father, uncle, broth-
er, sister. "We used to make a lot of rye
bread in those days," he says, "much, much
more than now. There were a lot of Polish
and Russian Jews here. They were real
Jews, my countrymen. They all died off.
The young ones today, they don't come in. I
don't know where they buy their bread.
Maybe they don't eat bread." He smiles mis-
chievously. "Watch out for the flour. You'll
get it on your trousers."
A little after 11:30 p.m., Reuben's son
Bobby comes in the door, bringing a blast of
cold air with him. He doesn't say a word,
just pulls off his jacket and starts cutting
into loaf-size portions, weighing each on a
scale. He's wearing a black T-shirt with a
white skull on the front and an inscription
on the back that says: "Welcome to the
Rock and Roll Zone." Reuben says, "I can't
even listen to the radio anymore. All they
have is rock and roll." Bobby keeps hacking
at the dough.
The Bangor Rye Bread Bakery is still a
family affairs. Cohen's wife comes in once in
a while, and his daughter-in-law and grand-
daughter work at the counter. His daughter
Marlene Is married to another baker across
town. Another son, Billy. . . Well, out on
the wall in the salesroom there's a clipping
from the Ellsworth American, a review of a
new book of poems by Ruble's son, Billy. A
Baker's Nickel, it's called. Above it is pasted
a blue and white bumper sticker. "Senator
Bill Cohen," it says. That's United States
Senator William S. Cohen, Republican,
Maine.
"Yes," says Reuben. "Billy works here
once in a while . . . when he's campaign-
ing." For the second time tonight he flashes
that mischievous smile.
How did a family of working-stiff bakers
get a politically ambitious son who writes
poems? "Damned if I know," Cohen says.
"There must be something I don't know
about back there in my forebears. He didn't
get it from me. I took the commercial course
in high school. I was too busy to study.
Poolrooms and dance halls, that Was what I
was interested in." He seems genuinely sur-
prised by his son, unable to see that the ex-
ample of hard work in a bakery can be ap-
plied to hard work in the political arena.
Billy must see it, though, hence the title of
his book of poems.
The arrival of a baker and a couple of
helpers jacks tip the pace. Machines start
rolling, stamping, and twisting dough. The
oven is lit, raising the temperature in the
room and altering the aroma from sourishly
yeasty to sharply pungent. This is an all-
bread bakery?no pastry?so that head-spin-
ning sensuousness is absent. Nevertheless,
it's a pleasant down-homey, Mother's-kitch-
en smell.
His dough made, Reuben retires to the
wicker chair. "I live here," he says, and
drops off to sleep. A couple of hours later
Bobby sticks a sign on the door: "Yes, We'r
Open." Reuben wakes up, dozes off, wake
up, dozes. . . . "Hey, Ruble!" someone yells
A wholesale customer comes in to pick up
several dozen rolls. Night is over. Cohen
rings up the sale, then goes out back to
wash up and admire the French bread and
the Jewish rye while Bobby and a helper de-
liver a stationwagon-load to the Brewer
IGA.
The night crew starts hassling Cohen at
about 6:30 a.m. "Hey, Rubie, you better get
going with the deliveries," someone says.
"It's getting late." Reuben doesn't seem to
be in much of a hurry, but he finally stirs
himself. We fill the car with paper bags of
bulkie rolls and rye bread and Italian sand-
wich rolls and big, fat loaves of French
bread.
Our first stop is a warehouse for a truck-
ing company that delivers upcountry. Signs
on the trucks says: "Ben's Frankfurts, Dean
of Franks." The Dean of Rolls piles his bags
just inside the door and scratches a remind-
er of the quantity in an order book. Then
we're off to a small market on Broadway.
"Hey, Rubie," the fellow behind the counter
says. "Do you think it's going to storm?"
We hit them all. Dunkin' Donuts ("They
serve my rolls with the soup"). Braley's
River City Restaurant, where we accept the
cook's hospitality and drink from cups of
steaming coffee and Reuben tells the cook
he's charging too much for his breakfast
special ("Same thing is cheaper down the
street"). Braley's Lunch on the corner,
where people are hunched over breakfast
("Reuben," the cook says, "Have a cup of
coffee"). McDonald's AG Market, the
Neighborhood Market, Paul's Restaurant,
Yogurtime and Salad Too?an altogether
"now" takeout counter in the Bangor Mall.
At each place the talk is the same: business
and the weather. Reuben has opinions
about both.
At the M&M Restaurant in the Broadway
Shopping Center we have more coffee and a
couple of doughnut holes. There's much
joshing with the cook, a Japanese-Ameri-
can. A sign in the kitchen says: "This is not
Burger King. You get it our way or you
don't get the son of a bitch." At the Shop &
Save Reuben examines the bread baked in
the supermarket's own kitchen. "Feel how
light their challah is. For this they get
$1.49. Ours is heavier and we get eighty-nine
cents."
The New Waverly Restaurant, the Green-
house ("Some place. Come on out here and
look at the front"), Miller's Restaurant,
where Cohen shows off the buffet table as if
March 26, 1987
it were his and pauses to sample the half-
sour pickles ("Not bad"), La Cucina, Sing's
("What's a Chinese restaurant doing with
Jewish rolls?"), it goes on and on.
About 10 a.m.. Reuben Cohen, seventy-
eight years old and tougher than a boiled
boot, glances over at me and says, "You look
tired." I look tired? What about him? He
doesn't look any different than he did at
nine the previous night, at four this morn-
ing. In fact, he seems to be perking up, hit-
ting his stride. At noon he'll pick up his wife
and take her to lunch. At 1 p.m. he'll go
home and watch the soaps. He'll sleep for a
couple of hours, eat supper, watch the tele-
vision news to keep up on things and see if
his son Billy has anything to say, and
return to the bakery at nine to make dough.
When are you going to quit, Rubie? When
are you going to pack it in? "Never," he
says. "I wouldn't know what to do wit
myself. On Sundays, my day off, I'd g
crazy if there weren't any ball games on th
television."
"Work and sleep. Work and sleep. That's
all I do and that's all I ever want to do."
THE ABM TREATY DEBATE
SHOULD BE ABOUT ABROGA-
TION
Mr. HELMS. Mr. President, the
enate is in the midst of a dispute fo-
cusing on, mainly, the strictly legal
points of an 18-year-old negotiating
record and a 15-year-old ratification
hearing record on the SALT I Anti-
Ballistic Missile Treaty. This is a very
esoteric and highly complex debate
which, in my judgment, misses?or at
least obscures?the vital point: Ameri-
ca's security.
I believe that we should return to
the basics of the ABM Treaty, and
debate what is really important. What
is important is that the Soviets have
cut the heart out of the ABM Treaty
by their violations, especially Kras-
noyarsk. Why should we fine tune an
interpretation, whether narrow or
broad, for a U.S. ABM Treaty compli-
ance policy, when the Soviets are vio-
lating the most important provisions
of the treaty?
The Soviet violations, especially
their Krasnoyarsk radar, are clear cut,
and have been confirmed six times by
President Reagan.
The Krasnoyarsk radar is supposed
to be on the periphery of the U.S.S.R.
and oriented outward, yet it is 750 kil-
ometers in the interior and oriented
inward toward a border 4,000 kilome-
ters away. It is an early warning radar
with ABM battle management capa-
bilities.
Mr. President, the Soviets are build-
ing 9 illegal ABM radars and mass pro-
ducing four types of illegal mobile
ABM interceptor missiles and small
radar systems. There are thousands of
these ABM's. The Soviets are there-
fore "breaking out" of the ABM
Treaty, as I have been pointing out to
the Senate since 1983. Here we are in
the United States arguing over how to
interpret our obligations to comply
with the ABM Treaty, regarding our
vitally important strategic defense ini-
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2
March 26, 1987 CONGRESSIONAL RECORD ? SENATE
AMENDMENT NO. 57
(Purpose: To make additional technical and
other amendments)
Mr. PROXMIRE. Mr. President, I
send to the desk an amendment and
ask for its immediate consideration.
The PRESIDING OFFICER. The
clerk will report.
The legislative clerk read as follows:
The Senator from Wisconsin [Mr. PROX-
MIRE] proposes an amendment numbered 57.
Mr. PROXMIRE. Mr. President, I
ask unanimous consent that further
reading of the amendment be dis-
pensed with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
On page 6, strike out lines 1 through 7, as
amended by the Proxmire-Garn amend-
ment, and insert in lieu thereof the follow-
ing:
"(H) an industrial loan company, industri-
al bank, or other similar institution which?
"(i) is chartered under the laws of a State
which on March 5, 1987, had in effect or
under consideration on its legislature a stat-
ute which required or would require such in-
stitution to obtain insurance under the Fed-
eral Deposit Insurance Act; and
"(I) does not accept demand deposits that
the depositor may withdraw by check or
similar means for payment to third parties;
"(H) has total assets of less than
$100,000,000 or
"(III) is not acquired by a company; or
"(ii) does not, directly or indirectly or
through an affiliate, engage in any activity -
in which it was not lawfully engaged as of
March 5, 1987.
No institution shall retain the exemption
provided by this subparagraph if it permits
any overdraft, including any intra-day over-
draft, or incurs any such overdraft in its ac-
count at a Federal reserve bank, on behalf
of an affiliate, unless such overdraft results
from an inadvertent computer or account-
ing error that is beyong the control of the
institution and affiliate.
On page 19, lines 4, 5, and 6, strike out
"until one year after the date of enactment
of the Competitive Equality Banking Act of
1987" and insert in lieu thereof "until
March 1, 1988".
On page 33, in the new subsection (b) of
section 106, as added by the Proxmire-Garn
amendment, strike out "one year after the
date of enactment of the Competitive
Equality Banking Act of 1987" and insert in
lieu thereof "on March 1, 1988".
On page 86, strike out section 313, relating
to the powers of the Federal Savings and
Loan Insurance Corporation, as added by
the Proxmire-Garn amendment.
On page 108, strike out section 408, relat-
ing to the authority of the Federal Deposit
Insurance Corporation, as added by the
Proxmire-Garn amendment.
On page 86, line 24, delete the word "and".
On page 87, line 2, strike the period and
Insert, in lieu thereof, the following: "and
liberal extension of forbearance with re-
spect to net worth requirements for institu-
tions that have made supervisory acquisi-
tions."
Mr. PROXMIRE. Mr. President, this
amendment makes technical changes
in S. 790 and has been cleared with
the minority. These are strictly tech-
nical changes and they are noncontro-
versial. I note that the bill currently
contains a provision authorizing the
FSLIC to issue regulations and orders
defining terms used in the statutes it
administers. The amendment deletes
that provision because the FSLIC al-
ready ha.s such authority under exist-
ing law. This the provision is redun-
dant.
The PRESIDING OFFICER (Mr.
SimoN). Is there further debate on the
amendment offerd by the Senator
from Wisconsin?
The Chair hears none. The question
is on agreeing to the amendment.
The amendment (No. 57) was agreed
to.
Mr. PROXMIRE. Mr. President, I
move to reconsider the vote by which
the amendment was agreed to.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
Mr. BYRD. Mr. President, might I
ask the two managers, as I am getting
inquiries from our colleagues, what is
their estimate, if they care to make an
estimate at this time, as to the hour
by which the Senate may complete
action on the bill tomorrow?
Mr. PROXMIRE. I do not know how
we can possibly tell. It depends on how
much time it will take. The Senator
from West Virginia knows that better
than anybody in the body. I would
hope we could finish at an early hour
tomorrow afternoon, but I may be mis-
taken.
I know of noboby who intends to
delay the bill. Both the ranking minor-
ity member and myself, I think, are
both anxious to move this along expe-
ditiously.
Mr. GARN. Mr. President, I cannot
predict the length of debate. I was sur-
prised this afternnon at the number of
Senators who showed up to speak who
I had no idea were coming. I have an
airplane I would like to leave for at 4
o'clock, so I hope we are finished by
then.
Mr. BYRD. It sounds pretty good to
me, if the Senator wants to be on an
airplane at 4 o'clock.
That is about the best we can say to
our colleagues.
MORNING BUSINESS
Mr. BYRD. Mr. President, if there is
no further action on this measure, I
ask unanimous consent that there now
be a period for morning business, not
to extend beyond 15 minutes, and that
Senators may speak therein for up to
2 minutes each.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
REUBEN COHEN, FATHER OF
SENATOR COHEN
Mr. MITCHELL. Mr. President, the
April 1987 edition of a publication
printed in Maine but read all across
the country, Down East magazine,
contains an article about a Bangor,
ME, institution, the owner of the
Bangor Rye Bread Bakery, Bangor's
S 3961
most famous and beloved Cohen,
Reuben Cohen.
For nearly 50 years now Ruble
Cohen, following in the footsteps of
his father, has worked in or operated a
bakery in Bangor. His son, who has
chosen another path to fame, is, of
couse my distinguished senior col-
league from the State of Maine, BILL
COHEN.
The Down East article conveys well
Reuben Cohen's inimitable style, a
real Maine original. I commend the ar-
ticle to all of my colleagues and ask
unanimous consent that it be printed
in the CONGRESSIONAL RECORD follow-
ing this statement.
Reuben Cohen says, "I am not a
baker, I bake bread, but I do it by the
seat of my pants." Mr. President,
Rubie Cohen saying he's not a baker is
like Larry Bird saying he's not a bas-
ketball player, or Roger Clemens
saying he's not a baseball player, or,
even, BILL COHEN saying he's not a
Senator. They all are, and are very
good at what they do. Mr. President,
take it from one who's eaten many a
roll in Bangor, Reuben Cohen is a
baker.
There being no objection, the article
was ordered to be printed in the
RECORD, as follows:
[From Down East Magazine, April 1987]
COHEN'S THE NAME, BAKING'S THE GAME
At two o'clock or so in the morning, a cer-
tain period of nothingness comes to the
small city of Bangor?a motionlessness, a
deep northern sleep that allows sounds, nor-
mally obscured by the bustle of earlier and
later hours, to be heard. You can step out
into the road and hear the streetlights hum-
ming and the ice creaking in the Kendus-
keag Stream and the diesel locomotives tick-
ing over in the freight yard down by the Pe-
nobscot River.
This is the time when Reuben Cohen
begins his nightly two hours of sleep, three
if he's lucky. He sits slumped in an old
wicker chair, a sweater loosely covering his
chest, his head rolled back against the fake-
brick wall of the Bangor Rye Bread Bakery
salesroom, his mouth wide open. He snores
quietly.
"Hey, Ruble," one of the night men says,
nudging the sleeper and pointing at me. One
eye opens; the other flutters weakly.
"You're early," he says. "We don't open
until four."
Open is a meaningless word at the Bangor
Rye Bread Bakery. It is true that the shop
is open from 4 a.m. to noon, six days a week.
It is also true that the shop is closed the
rest of the time. Yet you can telephone the
bakery at, say, 11 p.m. and someone will
answer; so, too, at 3 a.m. In fact there are
precious few hours in the course of a day
when the bakery is not open.
Nine in the evening, that's when Reuben
Cohen, seventy-eight years old and a tough
old buzzard if there ever was one, arrives at
the bakery and locks himself in with the
100-pound sacks of pumpernickel flour and
pure white rye, Dixie Crystals Cane Sugar,
and Buckeye Pure Gold Yellow Corn Meal.
He shuffles around alone for two and a half,
three hours, making the dough for the next
day's bread. White dough for the bulkie
rolls, the French bread, the Italian sand-
wich rolls, the tea rolls, the twisted challah
(Thursdays only), the onion rolls (Satur-
days only). Dark dough for the rye bread;
Declassified and Approved For Release 2013/01/23: CIA-RDP89T00234R000100030020-2