[LETTER FROM BERGER TO LOTT]

THE WHITE HOUSE
WASHINGTON

March 25, 1997

Dear Mr. Leader:

The President has asked me to reply to your letter concerning the Chemical
Weapons Convention (CWC) and the role of the Senate under the Constitution
in giving its advice and consent to treaties. Our staffs have held some
discussions on this matter, but I want to address in more detail each of
the three treaty issues you raise in the letter: the CFE flank agreement,
ABM multilateralization and ABM/TMD demarcation.

CFE Flank Agreement

On May 31, 1996, the United States, our NATO allies, Russia and the 13
other States Party to the CFE Treaty approved a document in Vienna
culminating more than two years of intensive negotiations on the CFE flank
issue. The centerpiece of this agreement was a realignment of the CFE map
(depicting the territory of the former USSR in the CFE area), which has the
effect of reducing the size of the flank zone. The CFE parties had
deliberately not included this map as part of the Treaty when it was signed
in 1990, and the Bush Administration did not submit the map to the Senate
in 1991 as part of the formal documents for advice and consent.
Accordingly, legal counsels in the Clinton Administration's national
security agencies determined last year that a change to the map does not
constitute a formal amendment to the Treaty.

At the same time, we determined that a realignment of the map did
constitute a change in a "shared understanding" formed with the Senate at
the time the Senate gave its advice and consent to the Treaty. That "shared
understanding" established that the Treaty would be applied and interpreted
on the basis of the original map. According to the 1988 "Biden Condition"
on treaty interpretation (which was attached by the Senate to its
resolution of ratification for the INF Treaty), Senate consent or
congressional approval is required to change a shared understanding.

When the Administration submitted the CFE flank Document for legislative
approval last August, we were faced with a time-urgent situation: by its
own terms, the Document required all States Parties to confirm their
approval by December 15; yet very little time remained before the
adjournment sine die of the 104th Congress. In this circumstance we chose
to seek statutory approval by both houses, as is explicitly permitted under
the Biden Condition.

We now face a complex situation. At the Lisbon OSCE Summit in December, the
30 States Party to the CFE Treaty agreed to extend the deadline for
confirmation of approval to May 15, 1997. In recent months, it has become
evident that the flank agreement underpins the new negotiations in Vienna
on "CFE adaptation," which in turn underpins NATO's efforts to define the
new security environment in Europe as NATO enlarges. In addition, both
adaptation of  the CFE Treaty and the admission of new stats to NATO will
be effected through agreements that will be submitted for the advice and
consent of the Senate. The situation and timing is therefore different from
when the Administration submitted the CFE flank agreement for legislative
approval last August. Accordingly, the Administration is prepared, without
prejudice to its legal position vis-a-vis the approval options we believe
are available to us, to seek Senate advice and consent to the flank
Document provide the Senate will act on this crucial matter before May 15.

MOU on ABM Succession

As noted in the President's November 25, 1996 report to Congress submitted
in accordance with Section 406 of the FY 1997 State Appropriations Act (
the "Liviningston Report" -- hereafter referred to as "the Report"),
executive agreements recognizing the succession of new States to the treaty
rights and obligations of their predecessors have traditionally not been
treated as treaty amendments or new treaties requiring Senate advice and
consent. Rather, they have been treated as the implementation of existing
treaties, which is recognized as an exclusively Presidential function under
the Constitution. The Report elaborates the specific reasons why this
conclusion applies in the case of the June 24, 1996 Memorandum of
Understanding (MOU) on ABM Succession reached ad ref between the United
States, Russia, Ukraine, Belarus, and Kazakstan in the Standing
Consultative Commission (SCC). It also explains why the MOU does no
constitute a substantive modification of the ABM Treaty.

In dealing with matters of succession, a key U.S. objective has been to
reconstitute the original treaty arrangement as closely as possible. This
was true with respect to the elaboration of the ad ref MOU as well and,
accordingly, the MOU works to preserve the original object and purpose of
the ABM Treaty. We hope that the breakthrough on ABM/TMD demarcation
achieved at the Helsinki Summit will set the stage for a meeting at which
all parties would sign this MOU. The Administration continues to believe
that the agreement does not require the advice and consent of the Senate,
or any other form of congressional approval, to enter it into force.

ABM/TMD Demarcation

The Report also informed Congress that the Administration had determined
that the June 24, 1996 SCC ad ref Agreed Statement on Demarcation (ASD)
concerning so-called "Part 1" or "lower-velocity" TMDs (i.e., those with
interceptor speeds 3.0 km/sec or less) constituted a substantive
modification of the obligations the Parties would otherwise have under the
ABM Treaty. The Report contained an Opinion of the Office of Legal Counsel,
Department of Justice, explaining that approval of a substantive change to
international obligations that would otherwise exist under a prior treaty
can be secured either through: (1) Senate advice and consent; or (2)
Congressional authorization through action of both Houses. in the latter
case, the Opinion noted that Congressional authorization can be provided
after an agreement is negotiated and presented to Congress for approval, or
in advance of negotiation of an agreement provided the standards specified
in advance by Congress for an agreement are met. The Report concluded by
noting that the question of which of these options should be chosen had not
been resolved by the Administration and did not then need to be, since the
ASD had not been signed.

Nonetheless, taking all these factors into account, the Administration is
prepared, without prejudice to its legal position vis-a-vis the approval
options we believe are available to us, to agree to seek Senate advice and
consent to the "Part 1" ASD following signature in the SCC. A "Part 2"
demarcation agreement on "higher velocity" TMD systems (i.e., those with
missile interceptor speeds above 3 km/sec) will be completed in the SCC
based on the Helsinki Summit Joint Statement. Without prejudice to our view
as to the legal options we believe are available in this regard, the
Administration is prepared now to assure you that we will also submit the
"Part 2" demarcation agreement for the advice and consent of the Senate
once it is signed.

Sincerely,


Samuel R. Berger
Assistant to the President
for National Security Affairs