Dear Senator Levin:

You have requested the Administration's views on two provisions relating to the ABM Treaty which are currently contained in S. 1745, the FY 1997 defense authorization bill:

• Section 232, which would prohibit the use of FY 1997 funds to implement any agreement on the demarcation between defenses against strategic ballistic missiles (i.e., ABM systems) limited by the Treaty, and theater missile defenses (TMDs), which are not prohibited by the Treaty.

• Section 233, which would require any agreement that would convert the Treaty from a bilateral treaty to a multilateral treaty unless the agreement is approved by the Senate pursuant to the treaty-making power.

In its June 11 "Statement of Administration Policy" (SAP), the Office of Management and Budget informed the Senate that the President's senior advisers would recommend that he veto a final conference bill that fails to address the concerns set forth in the SAP, and that in this regard, Sections 232 and 233 were of particular concern. The Administration stands by this assessment. Indeed, developments this week have deepened our opposition to both provisions.

On June 24, negotiators in the Standing Consultative Commission (SCC) from the United States, Russia, Ukraine, Belarus and Kazakhstan reached preliminary agreement on two agreements that have been under negotiation for several years: an SCC Agreed Statement on ABM/TMD demarcation and a Memorandum of Understanding (MOU) codifying arrangements by which those states of the former Soviet Union (FSU) that wish to succeed to the rights and obligations of the USSR under the ABM Treaty (e.g., Russia, Ukraine, Belarus and Kazakhstan) may do so.

The initial demarcation agreement reached in Geneva this week would make clear that all TMD systems with interceptor velocities up to and including 3 km/sec are permitted under the ABM Treaty, as long as they are not tested against target missiles with velocities above 5 km/sec or ranges greater than 3500 km. This is precisely the ABM/TMD demarcation standard the Congress directed us to obtain in last year's defense authorization act. The sides will continue discussions on demarcation of higher-velocity TMD systems (such as Navy Upper Tier), but pending a follow-on demarcation agreement on such systems, each side will continue to make its own decisions on compliance with the ABM Treaty. As you know, the Administration has formally certified to Congress that the Upper Tier system is fully consistent with the ABM Treaty.

These preliminary agreements will now be referred to all five governments for review and approval prior to beginning the formal process leading to entry into force. You can be assured, however, that the U.S. SCC negotiators would not have agreed to these agreements in the SCC had we not believed they fulfilled the President's commitment to two fundamental objectives in the area of missile defenses:

• Preserving the viability and integrity of the ABM Treaty as a cornerstone of U.S. security policy and our new relationship with Russia; and

• Developing and deploying highly effective TMD systems to meet and defeat the current and projected threat to U.S. forces, friends and allies from longer-range theater missiles possessed by potential adversaries.

Section 232 threatens to undercut this achievement by precluding funding to implement the just-concluded demarcation agreement absent a further vote of Congress even if it should, upon legal review, be deemed to be consistent with the standard that Congress set in last year's defense authorization act. In this regard, Section 232 would narrow the bipartisan understanding reached with the Senate last fall during consideration of that legislation.

The Administration has not determined if it will seek congressional approval of the MOU on succession. However, as amplified in the attached Department of Justice legal brief, we have serious doubts about the constitutionality of Section 233 given two exclusively Executive prerogatives: the power to interpret and execute treaties and the power of recognition.

The Senate did not object when the previous administration recognized that Ukraine, Belarus and Kazakhstan, among others, were co-equal with Russia as legal successors to the USSR for purposes of the CFE and INF treaties. Nor did it suggest that the ABM Treaty could only continue with Russia as a Party if Russia's status as a legal successor to the USSR was affirmed pursuant to the treaty-making power of the Constitution. By casting doubt on the status of Ukraine, Belarus and Kazakhstan as equal partners in the ABM Treaty, Section 233 could needlessly jeopardize the United States' positive relations with these newly independent and sovereign nations and put at risk their compliance with their denuclearization obligations under the START I Treaty.

We appreciate your concern about these two provisions.

Sincerely,

William C. Danvers
Special Assistant to the President and Senior Director for Legislative Affairs

Attachment as stated

The Honorable Carl Levin
United States Senate
Washington, D.C. 20510