Paul’s “simply amazing post on the Bush OLC and the ABM Treaty”:http://www.totalwonkerr.net/1932/olc-on-the-abmt should be required reading. Wowza.
Out of sheer jealousy, I will now add my own $0.02. Neither the original memo nor the commentary in Paul’s post seems to mention it, but this ain’t the first time that treaty law has been bent like a pretzel to permit testing banned under ABM. The first time around, though, the law being creatively reinterpreted was the ABM Treaty itself.
From the _NY Times_ of “Feb. 17, 1987”:http://www.nytimes.com/1987/02/17/world/arms-debate-now-centers-on-abm-pact.html?sec=&spon=&&scp=7&sq=sofaer%20abm&st=cse:
The question of how to interpret the Antiballistic Missile Treaty has emerged as the central arms-control issue, affecting the Soviet-American negotiations in Geneva, relations between the United States and its allies and relations between the Administration and Congress.
The Reagan Administration has insisted that its interpretation, which would permit the United States to conduct extensive testing and development of new types of antimissile systems, is “legally correct.” The Administration is now considering whether to adopt its new interpretation formally to justify new “Star Wars” tests.
The Administration’s interpretation is disputed by all but one of the principal American negotiators of the treaty and has been privately criticized by some Government experts as well.
The critics say the Administration’s view is not supported by the negotiating record, which is classified as secret, and is not consistent with the explanations provided to the Senate when the treaty was approved in 1972.
The Administration’s interpretation has also been called into question by diplomatic exchanges between American and Soviet officials since the treaty was signed.
The chief American negotiator of the treaty, Gerard C. Smith, said the Administration’s interpretation amounts to “a breach of contract.” And Harold Brown, the former Defense Secretary and a member of the American team that negotiated the treaty, said the Reagan Administration’s stance “is an off-the-wall interpretation.”
Lieut. Gen. Royal B. Allison, retired, who representated the Joint Chiefs of Staff on the American negotiating team, also said that he believed the Administration view was wrong.
On the other hand, the Administration’s interpretation is now defended by Paul H. Nitze, the senior arms-control adviser to Secretary of State George P. Shultz and a former negotiator of the treaty, who has reversed his earlier position that the treaty is restrictive.
From “April 30, 1987”:http://www.nytimes.com/1987/04/30/world/ex-aide-says-reagan-got-flawed-advise-on-abm-s.html?n=Top/Reference/Times%20Topics/Subjects/T/Treaties:
A former State Department aide told Congress today that Administration officials ignored dissenting legal views and provided flawed advice to President Reagan in recommending the adoption of a broad interpretation of the Antiballistic Missile Treaty.
“The procedures were flawed, resulting in conclusions that are inaccurate,” said William J. Sims 3d, a lawyer who worked for Abraham D. Sofaer, the State Department legal adviser. Mr. Sims later worked for the general counsel of the Arms Control and Disarmament Agency.
Mr. Sims said legal officials at the Defense Department and the Arms Control and Disarmament Agency prepared studies that supported the traditional, restrictive interpretation of the 1972 ABM Treaty. He said the studies were not considered until the issue was settled within the Administration. “The experts were left out,” he said. Mr. Sims said today that he resigned in August as a matter of principle over the ABM treaty issue.
[snip]
In the testimony today, William Sims appeared alongside Sidney N. Graybeal, a former negotiator who has helped prepare a classified review of the ABM treaty for the Pentagon.
Mr. Graybeal described the Administration’s new view as “a rewriting of what actually transpired.”
Mr. Sims described a hasty process in which hard-line political appointees disregarded the views of career civil servants with long experience on arms control issues.
According to Mr. Sims, Defense Department hard-liners “seemed to be in the driver’s seat.” “These officials,” he said, “offered the initial memo, we had to clamor to try to catch up.”
Mr. Sims said that as an aide to Mr. Sofaer he was unable to obtain a copy from the Pentagon of Mr. McNeill’s analysis. He said other important documents, such as an analysis of the treaty negotiating record by Mr. Graybeal, were not provided to the State Department by the Pentagon until after key decisions on interpreting the treaty were made.
Sofaer nevertheless issued his opinion on the testing of space-based defenses in May 1987. The Clinton Administration overturned it in July 1993.