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Mr. Chairman, Members of the Subcommittee, and Staff:

I wish to thank you for the opportunity to discuss with you the DoD arms control compliance review process. I plan to address the application of that process to the evaluation of missile defense programs and their compliance with the Anti-Ballistic Missile (ABM) Treaty. I plan to focus particular attention on the DoD theater missile defense (TMD) programs. I understand that ABM Treaty compliance for these programs is a specific interest of the subcommittee.

The Department of Defense decides treaty compliance questions through an established compliance review process. This process was created in connection with the SALT I agreements, which included the ABM Treaty, in 1972. (This process is defined in DOD Directive 2060.1) Under this process, the Military Services and Defense Agencies must seek compliance approval before taking any action that would reasonably raise a compliance issue. The Under Secretary of Defense (Acquisition and Technology) has been authorized by the Secretary to ensure compliance for the Department of Defense and to provide compliance guidance to the Services and Agencies in coordination with the DoD General Counsel, the Under Secretary of Defense (Policy), and the Chairman of the Joint Chiefs of Staff. In practice, most of the detailed work supporting the compliance review process is carried out by the DoD Compliance Review Group, which is made up of representatives from the organizations just mentioned. I chair that Compliance Review Group for the ABM Treaty.

The advent of the Strategic Defense Initiative in 1984 led to increased activity in the DoD compliance review process for the ABM Treaty. Prior to that time, our ballistic missile defense program consisted primarily of studies and technology development. Since then, however, the arms control compliance review process has approved more than 100 individual tests or complete programs as consistent with the ABM Treaty. In summary, we have been successful in assuring that programs achieve their objectives while remaining in compliance with the ABM Treaty.

We have found through long experience in evaluating compliance questions that we need specific and detailed information in order to make compliance decisions. This is so because these decisions generally depend on the detailed nature of both the activity to be undertaken and the performance of the particular devices involved. Said differently, we have not found it useful or appropriate to try to address treaty compliance questions in the abstract, but rather we address them in the context of information about specific and detailed plans. This consideration is important as we deal with compliance questions for our TMD programs.

A formal compliance review generally begins with a Military Service or Defense Agency bringing forward a plan or program for proposed activity. That activity is compared to U.S. arms control obligations to determine whether it is acceptable or would need to be modified. In determining the obligations, we follow a general pattern to assure that our interpretations are accurate and consistent in the complicated and ambiguous circumstances which often apply. The text of the Treaty and its associated documents, such as agreed statements and common understandings, fundamentally define the obligations. We can occasionally clarify the obligations by examining the Senate approval record to determine how the Executive Branch explained the treaty as part of our constitutional process of making treaties. We can further clarify the obligations by examining the relevant practices of the treaty parties to determine how the particular text has been interpreted in the past. These past practices can involve both the actions and the statements of the parties. Finally, we can clarify the obligations by examining the treaty negotiating record to consider how the parties understood the meaning during the process of drafting the text.

The formal compliance review process ends in guidance to the initiating Military Service or Defense Agency. The guidance is generally provided by the Under Secretary of Defense (Acquisition and Technology) with the concurrence of representatives of the Under Secretary of Defense (Policy), the DoD General Counsel, and the Joint Staff. One basic strength of the compliance process is that the final decisions represent consensus. In fact, every past formal compliance determination has been a consensus. Compliance issues are also occasionally considered in the interagency context with the State Department, the Arms Control and Disarmament Agency, and the National Security Council Staff.

Although the ABM Treaty does not explicitly limit TMD, it does so implicitly. Article VI of the ABM Treaty states, in part:

To enhance assurance of the effectiveness of the limitations on ABM systems and their components provided by the Treaty, each Party undertakes: (a) not to give missiles,launchers, or radars, other than ABM interceptor missiles, ABM launchers, or ABM radars, capabilities to counter strategic ballistic missiles or their elements in flight trajectory, and not to test them in an ABM mode; . . .

This provision supports other Treaty limitations on the development, testing, and deployment of ABM capability by prohibiting "upgrading" non-ABM components to give them ABM capabilities.

When the ABM Treaty was negotiated, the issues associated with Article VI(a) were reasonably straightforward. At that time, the United States was concerned about the potential ABM capability of the widely deployed Soviet air defense systems and, thus, pressed during the negotiations for the inclusion of a prohibition on upgrading non-ABM components. More recently, however, particularly with the development of highly capable TMD systems, the issues associated with Article VI(a) have become more complex.

The prohibition on upgrading non-ABM systems and components in Article VI(a) of the ABM Treaty defines two specific obligations: (1) not to give "capabilities to counter strategic ballistic missiles" and (2) not to "test in an ABM mode." For the purpose of evaluating compliance of TMD systems with the first obligations we assess hypothetical "capabilities to counter." They must be hypothetical capabilities because we cannot test TMD systems against strategic ballistic missiles to determine actual capabilities. Thus, we have assessed those capabilities on the basis of the simulated performance of TMD systems to counter strategic ballistic missiles. For example, in our evaluation of the compliance of the Theater High-Altitude Area Defense (THAAD) System, we used computer simulations of the hypothetical THAAD performance against Russian ICBMs and SLBMs.

In assessing the results of these simulations, we look extensively at the past practices of the ABM Treaty Parties. In February 1986, the Executive Branch, in a report to Congress submitted by the Director of the U.S. Arms Control and Disarmament Agency, discussed past Soviet air defense practices and reached the following conclusions:

Clearly, the phrase "capabilities to counter" as used in the ABM Treaty was intended to have the ordinary meaning of "blocking" or "stopping" a reentry vehicle. In the context of the ABM Treaty giving a [surface-to-air missile system] "capabilities to counter strategic ballistic missiles" meant giving them actual ABM capabilities.

Since virtually any air defense missile system has some level of ABM capability, the Treaty was not intended to preclude an incidental or insignificant ABM capability. Such a determination must ultimately be a factual determination taking into account the military significance of whatever ABM capability is present.

As a practical matter, we have assessed this "military significance" on the basis of the simulated, hypothetical performance of a single TMD interceptor missile and radar to intercept a single reentry vehicle from certain Russian (formerly Soviet) ICBMs or SLBMs.

The meaning of the second obligation of Article VI(a), not to "test in an ABM mode," is substantially clearer than the meaning of the first. The United States and the Soviet Union held discussions in the Standing Consultative Commission (the organization established by the ABM Treaty to promote the Treaty's objectives and implementation) during the 1970's on questions related to air defense activities under the Treaty. Those discussions resulted in an Agreed Statement of November 1978 giving a detailed definition of "tested in an ABM mode" as used in the Treaty.

The Department of Defense has a number of TMD programs in various stages of development and deployment. All of these TMD programs are going forward without ABM Treaty effects on the capabilities necessary to meet their requirements. As the Department has previously informed the Congress, we have certified the compliance of the Patriot, Navy Area Defense, and Navy Theater Wide systems and the THAAD system -- both the User Operational Evaluation System and the objective versions of THAAD -- as they are currently planned. DoD has now certified as treaty compliant all existing U.S. TMD programs that have matured to a point where it is possible to assess compliance. These programs are proceeding without any ABM Treaty effects on their intended capabilities for theater missile defense. We will of course, review for compliance purposes any changes to these programs. DoD will make any further compliance assessments that are necessary for U.S. TMD systems at the appropriate points in their programs.

The United States has been negotiating with Russia and other newly independent states to reach agreement on demarcation between ABM systems and non-ABM TMD systems. We have not yet concluded an agreement, and the negotiations are continuing. In the meantime, compliance determinations for TMD systems will remain a national responsibility. In light of the fact that we have already certified as treaty compliant all existing U.S. TMD programs that are sufficiently mature to allow a compliance assessment, we do not need the demarcation agreement in order for our TMD programs to proceed as currently planned.

The DoD program for National Missile Defense (NMD) is currently in development. The program will be prepared, within three years, to deploy a NMD system within an additional three years, should a ballistic missile threat to the United States warrant such deployment. The Administration's policy is that development and testing in the NMD program will comply with the existing ABM Treaty. Should we decide to deploy, the system which we would deploy would be determined by the threat and might comply with the existing Treaty, or might require Treaty modification.

The Department is currently in the process of selecting a Lead System Integrator which will be responsible for developing and, if necessary, deploying an integrated NMD system. Given the immature status of the system design and testing plans, it is not possible at this time to make any definite compliance assessments regarding NMD development and testing. Since the ABM Treaty specifically allows development and testing of fixed, land-based ABM systems and components, we expect that we can carry out NMD development and testing consistent with the Treaty.

Thank you for the opportunity to appear before the subcommittee. I would be happy to answer any questions you may have.