FRAMING THE ISSUE
Background and Modern Relevance of the 1972 ABM Treaty Debate
With Cold War tensions running high in May of 1972, the United States and the Union of Soviet Socialist Republics signed a treaty limiting the development and deployment of anti-ballistic missile (ABM) systems. (1) The ABM Treaty covered defensive systems designed to "shield" their respective nations from nuclear missile attack. In simple terms, the ABM Treaty allowed the United States and the Soviet Union to deploy missile shields only within a 150 kilometer radius of their respective capital cities--Washington, D.C. and Moscow. (2) The thinking on both sides of the negotiation table in 1972 was that an effective missile shield for either the United States or the Soviet Union would remove the deterrent factor for the side possessing the shield, and allow that side to launch a nuclear "first strike" without fear of an effective response. (3) This treaty remained in effect throughout the remainder of the Cold War, and served as one of the major stumbling blocks for President Ronald Reagan's Strategic Defense Initiative (SDI) (commonly known as Star Wars) in the 1980s. (4) Although the Reagan Administration attempted to "reinterpret" the ABM Treaty, the conventional wisdom of the day was that the SDI program was a violation of the letter and spirit of the ABM Treaty. (5) Ultimately, however, the ABM Treaty survived the assaults of the Reagan Administration when, for various reasons, the Administration abandoned its goal of developing the SDI.
Nearly ten years after the fall of the Soviet Union, in the waning months of the Clinton Administration, the debate over a national missile defense system for the United States resurfaced as a prominent part of America's political landscape. (6) President Clinton's position on the missile defense system essentially abdicated to his successor the decision concerning implementation. (7)
Almost immediately upon George Walker Bush's Inauguration as the forty-third President of the United States on January 20, 2001, his administration signaled a paradigm shift in United States policy concerning national missile defense. (8) In no uncertain terms, and only fourteen days after his inauguration, President George W. Bush's Secretary of Defense Donald H. Rumsfeld announced that "[t]he United States intends to develop and deploy a missile defense designed to defend our people and forces against a limited ballistic missile attack, and is prepared to assist friends and allies threatened by missile attack to deploy such defenses." (9) In the same breath, Secretary Rumsfeld noted "that the [G.W.] Bush Administration was determined to proceed with an antimissile defense of United States territory even if it could not overcome the objections from the Russians, the Chinese and the Europeans." (10) Additionally, President Bush quickly ordered the Pentagon to devise a plan to implement a national missile defense shield, taking into account "diplomatic, technological and financial difficulties." (11)
Thus, in the early months of the latter Bush Administration, national missile defense has been a priority on a scale not seen since the Reagan years. Six months after George W. Bush's inauguration, the Bush Administration has repeatedly declared its intention to go forward with a missile defense shield, with or without cooperation from Russia and the international community. (12) Despite this unequivocal stance, the new administration has waffled on the question of the legal "binding/nonbinding" nature of the ABM Treaty. (13) This question cuts to the heart of the question addressed in this Note, for if the treaty has lost its legitimate "force of law" there is no need for the United States to abrogate or withdraw from anything. (14) As the new administration proceeds with the implementation of a national missile defense, it will be forced to deal decisively with the ABM Treaty. (15)
This administration's position on national missile defense has received a lukewarm reception from the larger international community, Russia and some traditional U. …