Gerard C. Smith, who was the chief U.S. negotiator of the 1972 SALT I ABM Treaty, has written a self-serving letter to the New York Times attacking the Reagan Administration for the recent Pentagon report concluding that the Treaty does NOT prohibit President Reagan’s SDI (Strategic Defense Initiative). Smith is trying to force the United States to abide by what he says was his “intention” in 1972 instead of by what the Treaty says.
Any time you sign a contract, you should have your own lawyer read it and tell you what obligations you are imposing on yourself. If you don’t do this, and subsequently get into a dispute about what the contract terms mean, the lawyer you then hire will say, “You should have read the fine print before you signed it.”
Reading the fine print should be especially important if you sign a contract (a treaty) with the Soviets. What would you think of U.S. officials who signed a treaty with the Soviets but didn’t have our lawyers analyze the fine print?
Early in October, the Defense Department did a very simple thing which it should have done in 1972. In fact, it was a dereliction of duty that it was not done in 1972. The Defense Department told its lawyers to read the fine print of the 1972 ABM Treaty.
The lawyers came up with a 19-page report concluding that the 1972 ABM Treaty does NOT prohibit the development and testing of “exotic” future space-based defensive systems (such as President Reagan’s SDI), and may not even prohibit their deployment. Furthermore, the lawyers’ examination of the negotiating documents showed that the United States tried hard in 1972 to persuade the Soviets to ban future defensive systems, but the Soviets consistently rejected the U.S. position.
The State Department then called in its legal adviser to study the 1972 ABM Treaty. He concluded that it does not ban the testing or development of future space-based defensive systems, but that it does ban deployment. National Security Adviser Robert McFarlane broke the news by saying on “Meet the Press” that SDI testing and development is “approved and authorized by the Treaty” rather than banned.
President Reagan accepted the new Defense Department interpretation as a matter of law but (after heavy lobbying by Secretary of State George Shultz) said that, as a matter of policy, we will not test or develop SDI at this time. Reagan could change that policy at any time.
Gerard Smith is unhappy with the Administration’s lawyers’ analysis of the Treaty he negotiated in 1972, but his arguments are anecdotal rather than factual or legal. Smith relies on his personal view of the Treaty’s “intention,” his assertion that “the Russians agree with this position,” and a pompous, gratuitous remark that the 1972 Treaty is “the supreme law of the United States.”
Smith complains that the Defense Department lawyers made their evaluation “in secrecy without consultation with the Congress or United States allies.” That reminds us of the old adage that people in glass houses shouldn’t throw stones; the original ABM Treaty was negotiated by Smith and others in secret, without consultation with Congress or U.S. allies.
Since Smith cannot invoke the language of the Treaty to support his opinion, he invokes the name of Sidney Greybeal as the head of a “working group” of 1972 negotiators on this point. Funny thing, Greybeal refused to be interviewed.
Smith argues in his New York Times letter that the 1972 Treaty’s Agreed Statement D provides that new-type systems “cannot be deployed unless authorized by a treaty amendment.” Agreed Statement D doesn’t say that at all. It says that we agree “not to deploy … except as provided for in Articles III, IV and VI”; but those Articles refer only to defensive systems “currently” in use in 1972.
Smith doesn’t mention Agreed Interpretation E which blows his whole argument. It says that any “future” systems are “subject to discussion” under Article XIV which allows for treaty amendments to be negotiated. We obviously are not bound by anything that is “subject to discussion.”
Under the 1972 ABM Treaty, the United States has the legal authority to conduct full research, testing and development of SDI. The United States should proceed as fast as it can with this defensive program because, as President Reagan told the United Nations, “If we’re destined by history to compete, militarily, to keep the peace, then let us compete in systems that defend our societies rather than weapons which can destroy us both.”
