When President Reagan and General Secretary Gorbachev sat together in the White House on December 8, and placed their signatures on the INF treaty, millions of persons around the world applauded. Even as I joined in the applause, I had reservations, which were based on the past year’s political debate over the proper interpretation of the 1972 ABM treaty. Did the President and the General Secretary truly have a mutual understanding of the intricacies of the agreement they were signing? Will the Senate, which under the Constitution must ratify the treaty for it to have any binding effect upon our nation, fully understand the meaning of the agreement? When, as is inevitable, disagreements arise in the future over particular applications of the treaty, how will we determine the “proper” interpretation of this newest US–Soviet arms control agreement?
During the last year the Senate and the executive branch spent countless hours in a complicated political dispute over the proper interpretation of the ABM treaty. Two interpretative positions emerged, commonly referred to as the “broad” and the “narrow” interpretations of the treaty. (To put a complex matter too simply, the broad interpretation might be taken to allow the testing of certain kinds of new antimissile weapons in space. The narrow interpretation would impose more stringent limits on such testing.) Each side offered every possible shred of documentary evidence in support of its position. Unlike our judicial system, however, where clear rules govern the kinds of evidence that are and are not admissible, the political debate over the ABM treaty was governed by no rules whatsoever. As a result, each side made substantial use of the secret negotiating record compiled in the course of negotiating the ABM treaty over a period of many years.
The State Department’s legal adviser, Abraham Sofaer, the principal proponent of the broad interpretation of the ABM treaty, and Senator Sam Nunn, the principal proponent of the narrow interpretation, each believed that the confidential negotiating record lent support to his case. In fact, their resorting to the negotiating record as evidence of the treaty’s meaning resolved nothing; and it introduced a dangerous precedent for the upcoming debate over the INF treaty. To be blunt: I believe that unless there is agreement among my fellow senators that the negotiating record of the INF treaty is not a valid basis for determining its meaning as part of a debate on ratification, the INF agreement will not be ratified by the Senate. The feelings of hope that lifted our spirits on December 8 will give way to the enormous frustration and disappointment that followed the Senate’s refusal to ratify the SALT II agreement.
There are at least three good reasons for the Senate to refuse to consider the secret negotiating record during its ratification debate (and to refuse to consider the record later should disagreements arise about the meaning of some provision of the treaty). First, the negotiating record is so large and complex that meaningful review …