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The legal controversy over national missile defense (NMD) reminds us of the words of the great strategist Yogi Berra: “It’s d�j� vu all over again.” In the 1980s President Ronald Reagan proposed the construction of a space-based shield against nuclear missile attack, known as the Strategic Defense Initiative (SDI). Arms control advocates argued that even conducting research and development into SDI would violate the 1972 Anti-Ballistic Missile (ABM) Treaty with the Soviet Union, international law, and the Constitution. Today, President George Bush has again placed NMD at the forefront of the country’s national security agenda. And once again, critics both at home and abroad claim that international and domestic law stand in the way of deployment of any meaningful NMD system. We disagree. The 1972 ABM Treaty generally prohibits both the United States and the Soviet Union from deploying any defense against strategic nuclear missiles, aside from a single ground-based site. The treaty promoted the strategy of mutually assured destruction (appropriately referred to by its acronym, MAD) — the notion that neither side would ever launch a first strike against the other because, lacking any defense, neither could survive a retaliatory second strike. Missile defense advocates argue that the strategic situation has changed so much that the ABM Treaty ought to be discarded. The collapse of the Soviet Union has raised the chances of an accidental missile launch, while the proliferation of missile and nuclear technology has increased the number of potential nuclear threats to the United States. MAD no longer makes sense in a world where rival nations, rogue nations, and even terrorists may soon be able to strike the American homeland with rudimentary nuclear missiles. This is the basis for the Bush administration’s support for NMD. As President Bush declared during the campaign: “Now is the time, not to defend outdated treaties, but to defend the American people.” At the outset, it should be made clear that the ABM Treaty itself recognizes the United States’ unilateral right to pull out of the agreement. Article XV gives each party the right, “in exercising its national sovereignty,” to withdraw from the treaty with six months’ notice “if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.” Surely, the possibility that rogue nations such as North Korea will have the capability to field a nuclear missile against the United States within a few years (a conclusion reached in 1998 by a bipartisan commission headed by now�Defense Secretary Donald Rumsfeld) meets the standard for withdrawal from the treaty. Even if this were open to doubt, the phrase “if it decides” means that the treaty authorizes either the United States or the Soviet Union to decide for itself whether national security concerns warrant withdrawal. Assuming the ABM Treaty is currently in force, President Bush need only notify Russia of the reasons for a U.S. withdrawal six months before beginning to deploy an NMD system. But is the ABM Treaty even in force? We think not — and this is why NMD is a much easier case than SDI was 15 years ago. The United States reached agreement in 1972 with the Soviet Union, not with Russia and the USSR’s other successor nations. The Treaty is no longer a treaty because the Soviet Union is no longer a union. No settled international law requires a nation to adhere to a bilateral treaty when the other party disintegrates. More to the point, continuing to obey the ABM Treaty is inconsistent with the most fundamental principle of treaty law: A nation cannot be bound to obligations to which it did not consent. The essence of the bargain struck by the ABM Treaty was that the United States and the Soviet Union would both expose their territories and populations to nuclear missile attack, thereby shoring up MAD. With the disintegration of the Soviet Union, Russia can no longer perform the Soviet Union’s end of the bargain. Russia cannot guarantee that only a single ABM site will exist on the territory of the former Soviet Union; it cannot force the other republics to refrain from building their own ABM systems. Nor does Russia control all of the former Soviet Union’s nuclear weapons. The USSR’s collapse left four nations — Russia, Ukraine, Belarus, and Kazakhstan — with nuclear forces in their territories. Even if we assume that Russia has inherited the USSR’s treaty obligations, it can only guarantee compliance with respect to approximately half the original population and three-quarters of the territory of the old Soviet Union. This significantly alters the original deal to which the United States originally had consented. In recognition of this fact, the Clinton administration attempted to renegotiate the ABM Treaty. In September 1997 Secretary of State Madeleine Albright signed a “Memorandum of Understanding” among the United States, Russia, Belarus, Kazakhstan, and Ukraine that effectively transformed the obligations of the bilateral ABM Treaty into a multilateral agreement. President Bill Clinton, realizing that this agreement went far beyond the ABM Treaty, originally promised to send the agreement to the Senate for advice and consent. But he never did. Although the Clinton administration sometimes claimed otherwise, its effort to multilateralize the ABM Treaty shows that the old agreement imposes significantly greater obligations on the United States than it did before the Soviet breakup. Yet another way of making the point is to invoke the international law doctrine of rebus sic stantibus — a fundamental change of circumstances. Article 62 of the Vienna Convention on the law of treaties provides three criteria for withdrawal from a treaty because of changed circumstances. The changed circumstances must have been “unforeseen.” The circumstances that have changed must have “constituted an essential basis of the consent of the parties.” And “the effect of the change [must be to] radically transform the extent of the obligations still to be performed under the treaty.” The disintegration of the Soviet Union easily and obviously satisfies these criteria. Who will decide for the United States whether these interpretations of international law are correct? President Bush. As Section 326 of the Restatement (Third) of the Foreign Relations Law of the United States unambiguously, and correctly, states: “The president has authority to determine the interpretation of an international agreement to be asserted by the United States in its relations with other states.” This is especially true of non-self-executing treaties, like the ABM Treaty, that are not a source of law for domestic courts. As the “sole organ” of the United States in its relations with foreign nations, President Bush has the legal power to decide that the United States will withdraw from the ABM Treaty under Article XV, that the Soviet Union’s disintegration means that the treaty no longer exists, or that changed circumstances justify the end of the treaty. He could even decide to interpret the ABM Treaty to allow the United States to begin construction of an NMD system. Even if withdrawal from the ABM Treaty were to create problems under international law, President Bush still retains the domestic authority to terminate the treaty. Even though the president requires the advice and consent of the Senate before ratifying a treaty, most foreign relations authorities agree that the president has the power to unilaterally terminate an agreement, regardless of its legality under international law. This power was strikingly put on display when President Jimmy Carter decided to formally recognize the People’s Republic of China and to terminate our mutual defense treaty with Taiwan. Carter refused to seek Senate approval of his decision, resulting in a lawsuit led by Senator Barry Goldwater. In Goldwater v. Carter, the D.C. Circuit upheld the president’s unilateral power to terminate treaties, and the Supreme Court could not agree to reach the merits of the decision. President Bush similarly could use this power to terminate the ABM Treaty without the approval of the Senate or Congress prior to deploying an NMD system. While the Senate or Congress could contest the president’s decision using the constitutional powers at their respective disposals, the legality of a termination would be clear. And in this case, the president could claim the act to be consistent with the wishes of Congress. In the Missile Defense Act of 1999, Congress declared that the United States should deploy an NMD system as soon as technologically feasible. The ABM Treaty, like most treaties, lacks any third-party enforcement mechanism. Its efficacy depends on the political will of the treaty parties. For most of the treaty’s life, the parties complied because the benefits of doing so (nuclear deterrence) outweighed the costs (vulnerability to missile attack). But throughout our history, the United States, like every other country, has ended treaties when the balance between the two has shifted in the other direction. Pulling out of the ABM Treaty may cause collateral damage, especially if one credits the threats and complaints of other nations (who, it should not be forgotten, are not parties to the ABM Treaty). But the job of executive branch officials is to assess the credibility of such threats, and decide whether enhanced protection provided by NMD is more important. In proclaiming that the United States will move forward on NMD, the president and his advisers have decided that, on balance, a defensive system makes sense for the United States. The ABM Treaty should not present any obstacle to this considered judgment. Jack Goldsmith is professor of law at the University of Chicago. John Yoo is professor of law at the University of California, Berkeley. E-mail: [email protected]; [email protected].

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