Re/Interpreting the ABM Treaty:

Force, Necessity & Aesthetics Behind

the Strategic Defense Initiative Treaty Debate

by

Juneko J. Robinson

© Juneko J. Robinson
All Rights Reserved
Introduction

Just days after referring to the Soviet Union as the "evil empire," President

Ronald Reagan made a startling announcement: he called upon the scientific community

to find a technological solution to put an end to the increasingly hot nuclear arms race

and the longstanding doctrine of mutual assured destruction. This announcement,

immediately dubbed the "Star Wars" Speech by the media, was met with consternation in

some circles, and derision and disbelief in others. Eventually, however, with the

launching of Reagan's Strategic Defense Initiative (SDI) a.k.a. "Star Wars" Program, it

touched off a political crisis both internally and internationally. This technological

solution, according to Reagan, would be based on high tech lasers that could be deployed

to shoot down and destroy incoming nuclear weapons launched in the heat of war before

they entered the earth's atmosphere, thus providing a protective "shield" over American

civilians.

However, despite the President's assurances to the contrary, development of such

a program appeared to be in violation of the Anti-Ballistic Missile (ABM) Treaty we had

entered into with the Soviet Union and ratified in 1972: a treaty designed to help slow the

nuclear arms race and create a more stable and predictable international order. This

touched off a debate of Constitutional magnitude before the White House quietly dropped

its call for a reinterpretation of the treaty. Congress had the sense that it was beholden to

a law that it had written some twenty-three years earlier, but which it didn't fully

understand. At the same time, lawyers, scientific spokesmen, military analysts, and

political pundits lined up to take sides in what would increasingly become a metaphysical

debate about the fundamental meaning of the treaty.

2
 At one level, this paper will explore how it is that states can agree to treaties and

not "know" of what that treaty consists. At another level, it is also an examination of how

bureaucracies, particularly in federalist democratic states, can give rise to foreign policies

that are quite accidental and that are rife with internal contradictions, which reflect

domestic in-fighting. What emerges is a portrait of how the state, a seemingly monolithic

entity, enjoys the appearance of being able to implement carefully considered policy with

one mind, yet in reality is comprised of an exceedingly precarious balance of competing

forces that seek to undermine one another.

***

During the Cold War, there was a generalized fear oft-repeated by various

government spokespersons and political pundits that any change to the strategic balance

of weapons would have a ripple effect that could tip our precarious peace and trigger an

all out war. However, even as the Cold War itself provided the conceptual structure

through which all American foreign policy was understood,1 the government

bureaucracies involved in treaty negotiation, defense spending, military hardware

procurement, research and development, diplomacy, warfare, and making the voters

happy had vastly different views of what the priorities of the state should be in the

domestic and international arenas. These competing interests and ideologies both

constitute and are comprised of a politico-legal system that is designed to accommodate,

support and protect against the vagaries of the political marketplace. Most of the time,

this domestic "system" works well and seemingly operates "with one mind": the

Executive Office and the Congress working together to lobby for, nurture, and bring to

fruition new laws that enjoy much popular consensus and support. At other times,
1
DAVID A. WESTBROOK LAW THROUGH WAR. 48 BUFF. L. REV. 299, 300 (2000).

3
however, well-meaning statutes can be vague and poorly written at least in part because

of a failure to iron out these crucial differences of interests and ideologies into a workable

consensus. This push and pull between public policy and behind-the-scenes private

policy, between reality and ideology, and the substantial difference between their

proponents' perceptions and world views would underlie much of the later debate about

what were really the aims of the ABM treaty and the Strategic Defense Initiative that

depended on it. Because of these competing concerns, a government's approach to an

issue as arms control, even given the galvanizing context of a Cold War, can on closer

examination be quite schizophrenic while, at the same time, appearing at a distance to be

monolithic in its negotiation, acceptance, and ratification of a treaty into law.

Congress & the Public's Support for the ABM System:

From the beginning, the U.S.'s attempts to develop an effective anti-ballistic

missile defense enjoyed much popular support. This was due to the fact that the late

1950s through early 1960s were characterized, at least in part, by intense public concern

over the likelihood and survivability of nuclear war. Public service advertisements,

educational film shorts and entrepreneurial commercials showed Americans how to

convert upside down swimming pool shells into bomb shelters, organize local civil

defense programs, and put aside canned goods and purified water.2 School children were

taught how to perform in "duck and cover" drills in the event of a nuclear blast by cartoon

character turtles.3 Compounding the public's anxiety was the fact that, by the late 1950s,

it was commonly believed that America dangerously lagged behind the Soviets in terms

2
The documentary film THE ATOMIC CAFÉ (1982) (dir. by Kevin Rafferty, Jayne Loader & Pierce Rafferty)
provides an interesting overview of media images from the period.
3
Id.

4
of sheer numbers of warheads.4 Indeed, the success of John F. Kennedy's presidential

campaign was due in part to his promise to bridge the so called "missile gap."5 Thus, by

the late 50s, the U.S. began to search for anti-ballistic missile technologies that could

shoot down incoming missiles. Given the public's concern, ABM systems enjoyed strong

Congressional support when it first began to develop them in the late 1950s and early

'60s. In light of intelligence reports that found that the Soviets had begun research on

their own ABM systems, Congress appropriated generous funding for ABM systems to

protect its vulnerable constituency.

However, this support depended more on faith in the abilities of the scientific

community to overcome the inherent advantage enjoyed by the offense than it did on the

technological realities of the day. All the ABM systems had fatal flaws. The Spartan

Missile was designed to detonate Soviet warheads mid-air, but could easily be confused

by decoys, which meant that it had to wait until the warheads had entered the earth's

atmosphere and detonate them just seconds before impact.6 The Sprint Missile was

designed to act as a second line of defense after the Spartan, but its radar system was

vulnerable and could easily be confused or destroyed by countermeasures.7 Despite these

hurdles, the public remained hopeful, partly due to the optimism of the military and partly

due to American faith in technology (to which we will return later). Until the early 1970s,

both Congress and the American people wanted and were willing to pay for such

measures.

4
GWYNNE DYER. WAR (1985), p. 213.
5
Id.
6
FRONTLINE/NOVA: STAR WARS (1986) (Documentary).
7
Id.

5
 However, unbeknownst to the public and Congress (until the Nixon

administration, at any rate), any meaningful defense would prove to be technologically

impossible. When Secretary of Defense Robert McNamara took office under the

Kennedy administration, he brought with him years of experience in industry. After

reviewing the data, McNamara, presumably with an industry executive's eye for larger

ramifications of technical details, came to believe that a technological solution to our

defense problems was impossible. Influenced by defense researchers such as Herbert

York, Director of U.S. Defense and Engineering (1958-1961), McNamara believed that

any attempt to narrow the gap between measures, countermeasures, and counter-

countermeasures was endless and futile: the balance would never be over in favor of the

defense and great advantages to the offense would remain.8

By the time President Johnson took office, McNamara believed that the only

solution was that of deterrence based on the fear of mutual nuclear obliteration.9 So

began the long tenure of the doctrine of mutual assured destruction (MAD), which

governed U.S.-Soviet nuclear policy throughout most of the Cold War. MAD was a

theory of deterrence whereby a prospective attacker would be thwarted by the likelihood

that the victim would have enough remaining nuclear weapons to retaliate with

devastating consequences for the attacker.10 The idea was to absorb the opponent's strike

and survive with sufficient power to respond by inflicting unacceptable damage thereby

making any initial attack sheer suicide.11 Thus while Congress and the public naively

continued to believe that safety was just around the corner, the Defense Department,

8
FRONTLINE/NOVA: STAR WARS, supra, note 6; FRANCES FITZGERALD WAY OUT THERE IN THE BLUE:
REAGAN, STAR WARS, & THE END OF THE COLD WAR (2000), p. 115.
9
FRANCES FITZGERALD (2000) WAY OUT THERE IN THE BLUE, p. 93.
10
Id.
11
FRONTLINE/NOVA: STAR WARS, supra, note 6.

6
under McNamara, conceded that the balance between offense and defense strategy was

inextricably tilted in favor of the offense and it quietly began to turn its attention towards

treaties designed to stop the race to the bottom. Upon the appropriation of congressional

funding for further ABM development, McNamara suggested to President Johnson that

they accept the funds, but would spend only spend it contingent upon attempts to

negotiate a treaty ban on ABMs and offensive nuclear weapons with the Soviet Union.12

The treaty would be designed to allow American and Russian citizens to remain

vulnerable to nuclear attack.13 It wasn't until Congressional hearings revealed the serious

technical flaws in the ABM system, that the public—and Congress—came to realize that

situating ABM systems near American cities, rather than protecting the American public,

instead made them prime targets for nuclear attack.14 When President Nixon entered

office, he publicly admitted the technological limitations of the ABM system (then the

Sentinel system) that the public would come realize that the ABM program, even if

expanded, would not protect them from nuclear attack.15 He then promptly scrapped the

Sentinel system and replaced it with an even thinner system.16 Up until that time,

Congress had been pushing for a "thick" ABM system: one designed to provide

maximum coverage against incoming missiles for American cities.17 With the technical

failings of the ABM system publicly "outed," the U.S. turned its attention away from

protecting people to protecting missile silos.18 By the time of Reagan's presidency, the

Star Wars program would be the first military program funded by Congress "because of

12
Id.
13
Id.
14
FITZGERALD, supra note 9, p. 116.
15
Id.
16
FRONTLINE/NOVA: STAR WARS, supra, note 6.
17
FITZGERALD, supra note 9, p. 116.
18
FRONTLINE/NOVA: STAR WARS, supra, note 6

7
direct public pressure," and one for which "its members had voted for knowing full well

that what the public expected from it could not possibly be achieved."19

The Military, the Joint Chiefs of Staff & the ABM System

However, there were other forces exerting their influence on U.S. defense policy.

The military, specifically the Joint Chiefs of Staff, was confident in its ability to develop

an effective defense against a nuclear strike. However, its concern appeared to be less for

providing protection for civilians than it was over the prospect that the Soviets might be

able to build a weapon that could effectively destroy our retaliatory capacity. In addition,

many in the military feared that the U.S. might be woefully ill equipped for a nuclear

show down with the Soviets. Indeed, by the time Kennedy took office the issue became

how many missiles were needed for a confrontation with the Soviets.20

Although intelligence reports dispelled the notion that we were under-equipped

and, in fact, confirmed that the U.S. continued to far surpass the Soviets in terms of

numbers of missiles, "institutional fears" remained. According to Pentagon analyst

Bernard Brodie, nuclear weapons represented a clean break with history.21 In the past, the

chief purpose of our military establishment had been to win wars.22 After Hiroshima and

Nagasaki, Brodie surmised that the military's chief purpose would be to avert them.23

But, as Einstein noted, in the Nuclear Age, "everything has changed except the way we

think."24 Nuclear Age or not, the military understandably wanted the best, most effective

equipment available. But nuclear weapons exacerbated this tendency even while they

19
FITZGERALD, supra note 9, p. 264.
20
FRONTLINE/NOVA. STAR WARS, supra note 2.
21
WNET/PBS/PUBLIC POLICY PRODUCTIONS. TO WHAT END? (1988) (Documentary).
22
Id.
23
Id.
24
As quoted in DYER. supra note 4 , p. 222.

8
imposed other constraints such as the enormous expense associated with building and

maintaining a state of the art nuclear arsenal. Despite the fact that meaningful defense

and nuclear superiority in absolute terms was hopeless unattainable, the military

continued to attempt to do what it had always attempted to do: provide an impenetrable

defense and gain technological superiority over the enemy. By the time of Reagan's

presidency, in the minds of the Joint Chiefs of Staff (and Washington's other "Peace

through Strength" advocates), our first priority became the restoration of America's

military strength in order to reduce the risk of war and, indeed, Reagan himself often

articulated this sentiment. But complicating matters was the fact that the number of

missiles needed for offense and defense largely depended on what you were planning to

use them for.25 Parity with the enemy might be enough for deterrence; if a state believed

that just threatening to destroy its enemy's cities was enough, it would only need a few

missiles.26 However, if it believed that the other side might try to destroy its weapons in a

first strike, it might want several hundred so that some missiles would survive the initial

attack.27 On the other hand, if a state found it necessary to threaten its opponent's nuclear

forces and other military targets, then a few thousand would be justified.28 And if a state

thought that it was necessary to show a prospective enemy that it could fight a limited

nuclear war or use nuclear weapons on the battlefield (assuming, of course, a genuine

belief by both sides that this was even possible), then tens of thousands of nuclear

warheads would be necessary.29 The necessity of being able to plan for every type of

imaginable contingency created yet another imperative: from the perspective of the

25
FRONTLINE/NOVA. STAR WARS, supra note 2.
26
TO WHAT END? supra, note 10.
27
Id.
28
Id.
29
Id.

9
military strategist, every branch of the armed forces must command its own nuclear

arsenal, thereby allowing nuclear arms to be housed, protected, and deployed in a myriad

of ways. Of course, creation and maintenance of such a system would be costly and there

was intermittent pressure from the legislature to bring costs down. However, predictably,

legislative (and executive) mandates to reduce spending run counter to the "mission

statement" of multi-faceted readiness of the military establishment. Large, complex

bureaucracies generally find it difficult to imagine their own downscaling, obsolescence,

or demise and the myriad branches of the armed forces is no exception. According to

many observers, attempts to limit or reduce one branches nuclear holdings inevitably

brought up accusations of sawing the legs out from under a stool.30

To complicate matters, splintered as it is among the various branches, the military

must compete with one another when it comes to the acquisition of big-ticket hardware,

particularly nuclear hardware. In part, it seems that this is due to the mission statements

of each branch, which has its own history, traditions, and culture. Hence each branch

faces its own individual organizational imperative to obtain the best and most modern

equipment available in order to engage the enemy and emerge victoriously. Part of the

prestige and honor of the military has to do with the traditional purview of the warrior

code: bravery, readiness to fight and die for the nation, and protect the vulnerable, among

other ideals. But complicating matters is the fact that honor and prestige arguably, at the

organizational level of the Joint Chiefs of Staff, is also related to being able to procure

the latest military toys to protect and enable your soldiers to do their job well, which

entails being able to wield a tremendous amount of political influence and curry favors

with others—in the Executive Office, Congress, as well as in industry—who will allow
30
DYER, supra note 4 , p. 215.

10
you do that. But of course there are always a finite amount of resources available over

which the branches must compete. "When I was in the Pentagon," said retired Navy

Admiral Gene LaRocque, "I suppose that 80 to 90 percent of the secrecy in the Navy was

to keep secrets from the Army and the Air Force."31 Expecting to find confirmation of a

"missile gap" President Kennedy, upon entering office, found that the Air Force had

manipulated intelligence reports in order to justify expenditure for more bombers and

missiles.32 Thus, the military establishment itself, is a complex system pushed both from

within by its own internal imperatives of the warrior code, culture and ideology, and from

without by the forces of domestic and geopolitics, and a separate technological

imperative, as examined below.

The Executive Office

Moreover, according to Frances Fitzgerald, the Reagan cabinet itself was a

veritable soap opera of tension, dissention and competition between departments and

ambitious individuals.33 Each of these factions represented, to some extent, radically

differing worldviews, competing interests and institutional ideologies, and perhaps even

generational differences. To begin with, to an unprecedented degree, Reagan's

appointees were part a new generation of conservatives, arguably far more reactionary

and far less patient with diplomatic niceties.34 In contrast, "most of the domestic policy

posts went to moderate conservatives… or those who seemingly had no clear ideological

position.35

31
Id., p. 214.
32
Id.., p. 224.
33
See, FITZGERALD, supra, note 9 .
34
FITZGERALD, supra, note 9, p. 81.
35
Ibid., p. 147.

11
 Alarmingly, many important decisions were often made by default, via

underlings, or purely by accident. More than one observer has noted how the White

House's decision making during this time was shockingly casual.36At one level, there

were individual players whose personal idiosyncrasies had deleterious effects on national

and international policy. For example, it was widely known that Caspar Weinberger, the

new Secretary of Defense, who enjoyed the lecture circuit and trappings of diplomacy,

had really coveted the Secretary of State job.37 As such, he was frequently traveling and

many important decisions were made by default by junior staff members. In addition,

and by many accounts, Ronald Reagan himself was pointedly uninterested in matters

concerning foreign policy. According to Henry Kissinger, in his private discussions of

foreign policy with the President, Reagan simply glazed over and only asked questions

when another staff member was present.38

At the institutional level, relations between and among the Executive and his

cabinet posts were competitive and frequently dysfunctional with regard to their lack of

communication, which was further complicated by the number of individuals whose

behaviors were careless or down right reckless. According to many, the schizophrenic

public arguments about the meaning and import of SDI was due, at least in part, to

unresolved ideological conflicts between the myriad Secretaries of State and Defense

who served under Reagan.39 Indeed, despite the fact that the ABM Treaty was the corner

stone to the START (Strategic Arms Reduction Talks) and the INF (Intermediate Nuclear

Force) negotiations, and the codification of an international doctrinal order upon which

36
37
Id.
38
Id.
39
Id., at 263.

12
the entire system of nuclear geopolitics rested, Reagan failed to clear his Star Wars

announcement with the Pentagon and had only informed his Secretary of Defense a day

or two before.40 Secretary of State Schulz (who replaced Alexander Haig in 1982) and the

Joint Chiefs of Staff & the State Dept. were both taken by surprise.41 It was two days

before a White House spokesman confirmed this new interpretation at a press conference

and it wasn't until three days had passed that the President met on the issue for the first

time with the Secretaries of State, Defense, and his Arms Control Disarmament

Director.42

Aside from the fact that many in the scientific community felt that such an

announcement was premature due to the prevailing scientific opinion that we were

decades away from such capabilities, in the international arena, our NATO allies were

also taken by surprise and many were highly critical of the program because it upset the

delicate balance of MAD, and was thus highly destabilizing to the international order.

More significantly, to the Soviets, this signaled a shift from the long-standing policy of

mutual assured destruction to one of blatant first strike capability because we could

theoretically do so without any nuclear consequences, if in fact the SDI actually worked.

Finally, from the perspective of Capitol Hill, it appeared that such a research program

was in direct violation of the Anti-Ballistic Missile or ABM Treaty that we had signed

with the Soviets.

***

40
RAYMOND L. GARTHOFF (1987) POLICY VERSUS THE LAW: THE REINTERPRETATION OF THE ABM
TREATY, p 6.
41
Id.
42
Id.

13
The Technological Imperative

In addition, to these government players were policy analysts from the Rand

Corporation and other military industrial giants i.e., analysts from industry and think

tanks, such as the Hudson Institute and the Heritage Foundation.43 Indeed, the quiet push

for a reinterpretation of the ABM Treaty purportedly began with Donald G. Brennan at

the Hudson Institute as early as 1975 and, independently, with Abraham S. Becker and

William R. Harris of the Rand Corporation in 1977. 44 The ultraconservative Heritage

Foundation publicly "outed" these efforts during Reagan's tenure in April 1985.45

As Pentagon strategist Brodie, cynically proclaimed "most of the thinking on limited

nuclear war by civilian strategists was, in effect, simple careerism."46 In his estimation,

the theory of deterrence had already been worked out and completed by 1946.47 Later

analysts found that the best way to advance their careers was to identify some flaw in the

existing theory of deterrence and provide a solution that depended on new weapons, thus

enabling them to enlist the support of powerful interests in the military industrial

complex.48

However, powerful and influential the workings of the military hardware industry

and their associated think tanks might be, and leaving aside the tremendous financial

stakes involved, the industry's influences cannot be neatly separated from the imperatives

forced upon it by the very technology it created. Indeed, the imperatives of technology

make their own demands on foreign and nuclear policy and create their own perverse

43
RAYMOND L. GARTHOFF. (1987).POLICY VERSUS THE LAW: THE REINTERPRETATION OF THE ABM
TREATY, p 6.
44
Ibid., p. 6.
45
Ibid.
46
DYER, supra note 4, p. 231.
47
Id.
48
Id.

14
incentives in terms of military strategy and foreign policy. Technological developments

invite counter-technologies designed to counter act the unwanted effects of the original

technology.49 There is a kind of "social gestalt" that occurs when complex, extended

"environmental" systems such as the technological infrastructure of a society or

hemisphere and the global geopolitical system: the sum of the parts interacting with one

another are greater then that of the parts themselves.50 With the creation of many

complex technological systems, such as the nuclear armaments system, there is often

little thought about the complex environments or eco-systems they will inhabit. As such,

there are unseen consequences when multiple systems that were originally "designed" or

which developed independently, are forced to interact. The advent of nuclear weapons

changed everything from military strategy, politics, and diplomacy to popular

entertainment, design and, at some level, the human psyche, which was forced to

seriously contemplate its own possible extinction for the time in history. However, it

remains unclear and a matter of much debate as to whether the technological confluence

of institutions and actions that gave rise to and maintained the system of nuclear

armaments was itself a system that interacted with other complex systems such as

geopolitics or whether it was itself a kind meta-system that overarched and to some

extent determined the functions of these subsidiary and (conceptually/abstractly, but

perhaps not in reality) discrete complex systems.51 As such, much of our thinking about

nuclear arms was hampered by the fact that we couldn't fully understand all of the ways

49
And, ontologically speaking, technology introduces the concept of "sabotage" into the world.
50
KENT PALMER, ANTI-TERROR META-SYSTEMS ENGINEERING: PRE-EMPTIVELY USING HOLONOMICS &
DEVIANT LOGICS TO THINK THROUGH THE VULNERABILITIES OF THE TECHNOLOGICAL META-SYSTEMIC
INFRASTRUCTURE. available at: www.
51
Id. There have been a number of writers who have discussed the totalizing effect of technology and its
inherent nihilism. See, PHILLIP R. FANDOZZI (1982) NIHILISM AND TECHNOLOGY; See, e.g. MARTIN
HEIDEGGER WHAT IS CALLED THINKING?; See also, THEODORE ROSTAK 'S THE GENDERED ATOM; DAVID
SHENK'S DATA SMOG.

15
in which it was affected by and would affect other complex systems such as domestic and

geopolitics.

As discussed earlier, it was nuclear weapons that led Pentagon analysts, such as

Bernard Brodie, to speculate on the demise of a traditional, battle-ready military

establishment. As with all weapons throughout history, nuclear weapons spawned

attempts to counterattack their accuracy and lethality. However, unlike previous military

technologies, there appeared to be no technological solution to this most technological of

problems. In attempting to defend civilians from attack during the London bombings of

WWII, the British soon discovered that the deployment of fighter aircraft could detect

German planes via radar, shoot them down, and destroy them.52 By doing so, the British

could destroy as much as 10 percent of the bombers in each raid: a rate of loss that was

unsustainable for the Germans.53 Moreover, the conventional bombs dropped on British

civilians were of low explosive power, thus they could simply ride out the bombardments

in shelters.54 However, nuclear weapons upset the balance between offense and defense.

Never again would a 10 percent or even a 90 percent effective defense protect the

population for a defense that was 90 percent effective would still admit an unacceptably

high level of death and destruction.55 Yet despite this, the search for the "magic missile"

that would provide for the perfect defense continued even as nuclear weapons became

more lethal with greater range, accuracy, and increased payload.

In addition, the technology yielded yet another perverse result. The perfect

defense came to be less about protecting civilians per se and more about protecting our

52
FRONTLINE/NOVA. STAR WARS, supra note 2.
53
Id.
54
Id.
55
Id.

16
ability to return fire, so to speak due to the technological limitations of the ABM system.

A state with an effective anti-ballistic missile defense would not only be able to protect

itself from a first strike, it would also be able to effectively shield itself from a retaliatory

attack, thereby allowing it the ability to launch its own first strike with impunity. Hence,

from a strategic standpoint, many military analysts believed that this would make it more

likely that an enemy would strike first and early on in a conflict, in anticipation of being

crippled by a shielded assailant and unable to launch an effective counterattack.56

According to this "use it or lose it" theory, any truly effective defense, rather than

preempting a nuclear attack, might instead actually provoke it.57 At the same time, there

were other defense analysts who believed that our technological capabilities simply

weren't up to the job of any meaningful defense.58 Reasoning that a vulnerable defense

merely invited the other side to overwhelm it, they believed that a weak defense was

worse than no defense at all.59

Eventually Bernard Brodie came to believe that the best way to try to manage a

potential nuclear standoff was through diplomacy and the use of nuclear arms agreements

designed to curtail new technologies and limit the number of weapons.60 In Brodie's

estimation, such agreements could help slow the arms race and maintain a condition of

stable deterrence that would prevent a technologically-driven escalation into war.61 Arms

control would allow for a certain amount of predictability, a certain amount of restraint,

as well as allow for some degree of confidence in the ability of one's forces to survive a

56
FITZGERALD, supra note 9, p. 86.
57
Id.
58
FRONTLINE/NOVA. STAR WARS, supra note 2.
59
Id.
60
TO WHAT END? supra, note 10.
61
Id.

17
crisis situation.62 This is certainly what McNamara and others came to believe when they

began negotiations for the ABM Treaty.

However, although U.S. security was inextricably linked to that of the Soviets,

and vice versa, the relationship between the two was hardly one of trust. As such, the

search, by both sides, for effective anti-ballistic technology quietly continued, essentially

unabated by the agreement. The ABM, and the Strategic Arms Limitation Treaties I and

II were designed to gradually phase out all ABM and offensive nuclear missiles. But

although the ABM Treaty, which would restrict defensive deployments to two sites so as

to be unable to provide nationwide protection, within two years of its ratification it was

obsolete due to the simultaneous development of American and Russian MIRV nuclear

weapons63 Multiple Independently Targetable Reentry Vehicles or MIRV were designed

to overwhelm ABM systems by allowing a single rocket to deliver several warheads to

different targets with great accuracy.64 Although the original purpose for its development

no longer existed on paper, both the U.S. and the Soviets, according to McNamara,

secretly went ahead with its development and deployment.65 The technological

imperative once again prevailed over diplomatic attempts to stem its tide.

While it is true that the technological imperatives of other forms of military

hardware (e.g., the advent of firearms, the first repeating rifle, the mechanization of war,

mass transportation of troops and their supplies, etc.) have always forced concessions in

terms of military strategy (e.g. abandonment of phalanxes after the introduction of

repeating rifles) and foreign policy (support for the international ban on germ and

62
Id.
63
FITZGERALD, supra note 9, p. 116.
64
FRONTLINE/NOVA. STAR WARS, supra note 2.
65
Id.

18
chemical warfare), nuclear weapons remained somewhat of an unknown quantity. It

exerted tremendous influence on military strategy and foreign policy, but its effects on

these seemed to rely, to an unprecedented degree, on pure conjecture and blind—perhaps

even naïve--faith. This level of uncertainty allowed for debates about the prudence of this

or that strategy to become ideologically charged to a much greater degree than previous

arguments about conventional arms. Thus, although all of these factors "are similar to

those that operate in other areas of every country's defense policy, " the extraordinary

cost and enormous importance of nuclear weapons and their delivery systems "tend to

magnify the effects of these institutional motives."66As a result a government like the

U.S.'s government, with its plethora of constituencies, cabinet posts and, perhaps most

importantly, a constitutional split in terms of the authority to make treaties or (executive)

agreements and interpret them tends to find consensus in defense policy especially

challenging.

Reagan, Star Wars & the ABM Treaty Re/Interpretation

It was against this backdrop of competing imperatives from the public, Congress,

the military establishment, within the Executive cabinet, and from the technology itself

that Ronald Reagan was catapulted into office. Elected in part due to the popularity of his

call to "bring America back" and "restore American pride," Reagan, himself, had never in

the course of his career ever supported any arms control agreement.67 Indeed, he was a

man whose views on the nature of Communism were viewed by some as rather black and

white and perpetually stuck in 1952.68 On top of refusing to deal with the USSR for his

first two years in office, Reagan engaged in incendiary attacks on the Soviets, referring to

66
DYER, supra note at p. _
67
FITZGERALD, supra note 9, p. 178.
68
Id. at 74.

19
them as liars, cheaters, and the Evil Empire, among other remarks.69 The remarks alone

created a stir in the Soviet Union, but the fact that they were coupled with a peacetime

military buildup, unprecedented in U.S. history, and an attempt to undercut the ABM

Treaty were highly alarming to the Soviets (and, indeed our NATO allies). In May 1981,

the KGB advised stations in its Western capitals that the U.S. might be preparing for an

attack on the Soviet Union.70 The USSR promptly put its stations on alert.71

According to Raymond Garthoff, one of the principle negotiators of the ABM

Treaty, the origins of Reagan's push for a reinterpretation of the treaty began when

National Security Advisor Robert C. McFarlane casually blurted out that the Reagan

administration had redefined a key provision of the ABM Treaty during a televised

October 6, 1985 "Meet the Press" appearance, in response to a question that had not even

mentioned the treaty.72 As mentioned earlier, this announcement caused alarm in both

international and domestic circles. There was neither prior consultation with the President

nor cabinet-level review before the new policy was adopted and made public, which

further added to the appearance that the White House and its cabinet took a rather

cavalier attitude towards decision making.73 There was no consultation with NATO

allies and, predictably, as with the initial reaction to Reagan's "Star Wars" speech, Prime

Minister Margaret Thatcher of the United Kingdom and Chancellor Helmut Kohl of West

Germany, who had not been informed about this change in policy, immediately wrote to

President Reagan questioning a reinterpretation that had tremendous ramifications for

69
Id., 148.
70
Id.
71
Id.
72
Id., p. 2.
73
GARTOFF, supra, note 72.

20
global strategic stability.74 Not only did the prospect of reinterpretation unsettle NATO

allies, it touched off a political controversy at home, as well. Reagan's interpretation

fundamentally differed from the U.S. Senate's understanding of the law when it gave

consent. The U.S. Constitution is quite clear that the executive branch has the right to

negotiate treaties on behalf of the American people. At the same time, however, it

specifically grants the power to incorporate treaties into U.S. law to the Senate. As such,

the issue arose as to whether, and to what degree, the U.S. government broadly construed

should go in supporting the policies of a president when those policies are constrained by

observance of the law of the land.75

The legitimacy of Reagan's SDI depended a re/interpretation of the ABM Treaty

the U.S. had signed with the Soviet Union. The Reagan administration was recalcitrant,

holding that SDI was not in violation of the treaty: the Nixon, Ford, and Carter

administrations (and indeed the early Reagan administration) had simply misinterpreted

the nation's obligations under the ABM Treaty for a thirteen year period from 1972 to

1985.76 According to the Reagan administration's new interpretation, the treaty did not

explicitly deal with future ABM systems.77 Thus, the parties are allowed to develop and

test ABM systems if they are based on new physical principles such as lasers or particle

beams.78 (Of course, if accepted, this would mean the Soviets would also have the

freedom to develop such ABM systems.) However, because this seemed to be at odds

with what the Senate understood to be the meaning of the treaty at the time it gave

consent, the House Subcommittee on Arms Control, International Security and Science

74
Id.
75
Id., p. 2.
76
GARTHOFF, supra, note 40.
77
FITZGERALD, supra, note 9 at 500.
78
Id.

21
and the Committee on Foreign Affairs began hearings to determine whether the

Executive Branch's interpretation was credible. However, the questions raised were never

answered in large part because of the abstract nature of the debate and so the Senate

Judiciary and Foreign Relations Committee again held hearings in 1986 and 1987.

As Fitzgerald points out, the administration could have tried to amend the treaty

or withdrawn from it with notice.79 Instead, it bizarrely and without historical precedent,

argued that the treaty did not mean what the Senate and four presidents thought it said.80

The president likely didn't have a legal leg to stand on. "The Senate has unquestioned

power to enforce its understanding of treaties."81 Moreover, even if a treaty contains

ambiguities, and the Senate indicates its interpretation of the ambiguous provision, the

President must honor it.82 "Any other rule would undermine the authority of the Senate

under Art. II §2 of the Constitution."83

Early political philosophers tended to argue that governments were social

constructions formed by collective rational agreement to come out of the state of nature

and transfer sovereignty from the individual to the state. Embedded in these theoretical

approaches is the notion that there are objective facts that are part of the real world that

are facts only by human agreement.84 Some modern thinkers take it a step further by

arguing that these facts are "objective" in the sense that they have nothing to do with

individual preferences, evaluations, or morality.85 In this view then, language might be

79
FITZGERALD, supra, note 9, p. 290.
80
Id. at 291.
81
Rainbow Navigation Inc. v. Dept. of Navy, 699 F. Supp. 339, 343-44 (D.D.C. 1988) (rev'd on other
grounds). Justice Scalia, concurring.
82
Rainbow Navigation Inc. v. Dept. of Navy, 699 F. Supp. 339, 343-44 (D.D.C. 1988) (rev'd on other
grounds).
83
Id. Justice Scalia concurring.
84
SEARLE, p. 1. (Other examples are money, property, governments, & marriages, to name a few)
85
Id.

22
conceived as one such institution among many, or even the meta-institution through

which other institutions are constituted.86 Similarly, that fact that a treaty, as a kind of

institution, really constitutes an international agreement is a matter of "objectively

ascertainable fact."87 The creation and development of both international and domestic

law is such that the U.S., along with other states, has agreed to what constitutes just such

an international agreement, but that agreement does not depend upon individual feelings

or opinions of the individuals comprising each of the respective governments. However,

Reagan's attempt to reinterpret the ABM treaty challenged this traditionally held notion,

instead apparently arguing that treaties—and in fact language itself—were indeed

subjective. Suddenly, and much to the consternation of both the international community

and Congress, the meaning of legally binding documents whose validity was based upon

a certain international order and U.S. Constitutional law became "observer relative,"

which in retrospect was extremely troubling given what some critics contended was a

near delusional belief in the efficacy of SDI technology. However, just when the public

debate was beginning to become strangely metaphysical, and shortly after Congress

launched an another investigation into whether the executive branch had overreached its

Constitutional powers in reinterpreting the treaty, the White House quietly,

unceremoniously (and quite mysteriously) dropped its attempts to reinterpret the treaty.

The Aesthetics of Star Wars

To some degree, why Reagan made it his personal crusade to develop the SDI

program remains somewhat of a mystery—a strange confluence of accidents and motives,

bureaucratic, political, economic, and personal. Reagan's charismatic style allowed him

86
SEARLE, p. 27.
87
Id.

23
to win two presidential elections by a landslide. In a time when Americans were looking

for new sources of self-esteem and patriotism after the debacle of Vietnam and years of

economic stagflation, he appeared both tough-minded and resolute in his dealings with

the Soviets. It seemed that Reagan had a clear vision of the future of America and her

position in the world. But in reality, Reagan's pattern of escalating tensions with the

Soviets was less a part of a cohesive defense policy than a seat-of-your pants confluence

of competing and extremely contentious political forces within the U.S. government.

Strangely, one of the motivating factors for Reagan's (and much of the nation's)

myopic enthusiasm for Star Wars seems to have stemmed as much from aesthetics as it

did from ideology. If the mutual hostage relationship that existed under the doctrine of

MAD was unattractive, aesthetically speaking, Reagan's proposal provided a far more

attractive alternative. Indeed, nationwide polls during the time showed that 41 to 69

percent of the American public favored the development of Reagan's Star Wars

program.88 Moreover, polls also showed that support for SDI was directly related to the

clearly erroneous belief that it could provide complete nationwide defense.89 The notion

of clean, high technology that zapped nuclear weapons in outer space was highly alluring

to gadget-loving Americans who loved the idea of "out of sight, out of mind." Indeed,

television ads promoting Reagan's SDI program showed cartoons rendered like a child's

drawing of a smiling family standing before a house complete with shining protected by a

magic bubble from which incoming nuclear missiles would bounce away. According to

pollsters, such optimism, which arguably bordered on delusion, had been characteristic of

88
FITZGERALD, supra note 9, p. 258.
89
Id.

24
Americans, at least since the Second World War.90 "Indeed, when asked if the U.S.

already had a defense against nuclear missiles, most Americans said yes, it did—except

when the lack of one, or the issue of U.S. vulnerability, was in the news."91 Such faith in

and enthusiasm for America's technological prowess was scarcely limited to that of an

uninformed public. During Reagan's campaign and after his election, a number of

different players, including Vice President George H.W. Bush were quoted in the media

as stating that they believed nuclear war was "winnable."92 To many observers, it had

reached the point to where doubt in the technical abilities of the U.S. to surmount the

problem was viewed as unpatriotic.93 Against this backdrop, Reagan skillfully and

successfully articulated this American "can do" attitude—in large part due to his ability

to appropriate the language of the nuclear freeze movement94—and he did so to such a

degree that his proposals to make nuclear weapons "obsolete" seemed entirely credible to

a believing American public: so much so that within two weeks of his Star Wars speech,

"on one in three Americans doubted that scientists could not come up with 'a really

effective way to destroy Soviet nuclear missiles from space.'"95

Although technologically impossible, the notion of effective defense remained

theoretically plausible and it was this possibility that fueled American faith and optimism

in a technological solution to the mutual hostage situation that had emerged in the nuclear

age. Fundamentally, these technophiles, both in the public and private sectors, had great

faith in Reagan's Star Wars program despite clear scientific evidence to the contrary.

90
Id.
91
Id. at 259.
92
Id., at 150.
93
Id. at 261.
94
FITZGERALD, supra, note 9, p. 259.
95
Id.

25
They tended to believe that it was innovation that created a more stable deterrence, citing

developments such as increased missile survivability via burial in concrete silos or on

submarine carriers.96 Such proponents lobbied for weapons modernization of weapons,

the mobilizing of missiles, the creation of more stealth bombers, and the launching of

quieter submarines.97 Critics argued that such faith bordered on the delusional: now, said

one critic, people are "making up crazy worlds in which this might work."98 Moreover, as

other critics pointed out, SDI would not stop bombers, cruise missiles or short-range

missiles fired from submarines: a fact that hardly meant an end to the threat of nuclear

war.99 Nonetheless, that didn't keep Reagan from insisting that Star Wars constituted a

paradigmatic shift, constituting not merely a new form of strategic defense, but rather a

complete preventative to nuclear war. The fact that Star Wars couldn't defend the

American population, was not something that Reagan officials were prepared to admit

publicly: it was both impolitic and highly unattractive. Yet, according to Fitzgerald,

careful examination of the congressional record reveals that no official document and no

administration expert speaking under oath before the Senate hearings on the ABM Treaty

reinterpretation ever claimed that it could.100 "I have not heard population protection

mentioned anywhere," Senator Sam Nunn asked.101 "Let me answer it this way,"

according to one witness, "What we are trying to do is enhance deterrence,"102 which of

course was what the doctrine of MAD had already been doing for over 20 years.

***

96
TO WHAT END?, supra, note 2.
97
Id.
98
Id. Arnole Carnesale, J.F.K. School of Government, Harvard.
99
FITZGERALD, supra, note 9 at 248.
100
Id. at 253.
101
Id. at 252.
102
Id.

26
Conclusion

In political theory as well as international law, the concept of the state is

notoriously slippery and difficult to articulate. Rather than focus on the legal or

Constitutional issues that arose from this debate, as other scholars have, this paper

explored some of the implications a multidimensional state might have on the process of

treaty making and interpretation, particularly with regards to military technology. What

has emerged is a picture of a state that is strangely and perhaps unsettlingly vague and ill-

defined. When the machinery of the state successfully subsumes dissention within its

constituent parts under a larger "mission statement," all goes well and Americans and the

international community are none the wiser. However, when there is friction at a more

fundamental level, as in the case of competing authority (Congress and the executive

branch) to interpret the law of the land, a political crisis can erupt that calls into question

the very bases of authority and legitimacy, the outcome of which is not at all certain.

Given the slippery notion of a vague and ill-defined state, what remains is to

explore how the state manages to make decisions and agreements at all, a question

unfortunately beyond the scope of this paper. Why and when does the collaborative

process work, and when does it break down? The treaty as an instrument of international

law was devised to make relations between states more stable and more predictable. But,

in the context of what has been discussed, the very act of treaty re/interpretation could

have led to a military confrontation—even given a narrow reading. But herein lies yet

another problem with understanding the mechanisms behind the ABM Treaty and indeed

any treaty. If the institution of treaty law depends on collectively agreed upon functions,

how does disagreement about the provisions of a particular treaty occur and how can such

27
disagreements be resolved? Ultimately, this requires examination of the relationship of

parts to the whole; of the relationship among the constitutive parts of the state and the

constitutive parts of the treaty—not just vertically in terms of the hierarchy of power,

laws, duties, etc. but horizontally, across time. But if so, does the treaty have the same

meaning to its parties as it did when it was first signed into law? Congress said yes, but

the Reagan administration said no.

Moreover, the reinterpretation process itself gave rise to additional conceptual

problems. Had the confrontation between the Oval Office and the Senate led to a lawsuit,

which entity would have standing? How many Senators would it take before they were

considered to be "representative" of the Congressional body? The treaty was ratified

twenty-three years previously. Can it be said that the Congress that gave advice and

consent in 1972 was the "same" as the 99th and 100th Congresses that challenged the

President's interpretation? Are there some underlying institutional facts that can remain

fixed or long lasting while others are more transient? In a dispute such as this, how do we

decide which has primacy? Allegedly, there have been cases where Senators have

attempted to bring suit to force Congress' interpretation of a treaty only to be rejected for

lack of standing due to the fact that they were not a part of the Senate that originally gave

advice and consent, but this only raises more questions about what we are talking about

when we are talking about states that have the power to contract in the international

arena.103

According to Frances Fitzgerald, "to look back over the public record of the late

'70s and 1980s is to be struck by how little of what was said about these subjects had

103
At this writing, I've been unable to locate these alleged cases in question.

28
anything to do with reality. It is to enter a world of phantoms and mirages."104 Reagan,

who with the help of his technophile supporters oversaw the largest peacetime build up of

American military might in history,105 nearly triggered a military stand off with the

Soviet Union, whose policies triggered a worldwide anti-nuke movement, and who had

never in his long political career supported an arms control agreement106 somehow

managed to usher in an area of peace and an end to the Cold War despite himself107 and

the ungainly confluence of competing political and technological imperatives.

Apparently, dreams, however convoluted can come true.

END

104
Id. at. 16.
105
Id. at 148.
106
Id. at 178.
107
Indeed, according to Fitzgerald, given Reagan's lack of interest in most policy matters, "it was entirely
conceivable that he had no beliefs on the subject at all," p. 264.

29
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