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[Page: S12331]

Bipartisan Amendment Concerning the Missile Defense Act of 1995

Text from S. 1026, the National Defense Authorization Act for Fiscal Year 1996, Subtitle C of Title II (the Missile Defense Act of 1995) with additions in italic and deletions bracketed.

On page 49, strike out line 15 and all that follows through line 9 on page 69 and insert the following in lieu thereof:

Subtitle C--Missile Defense

This subtitle may be cited as the `Missile Defense Act of 1995'.

Congress makes the following findings:

(1) The threat that is posed to the national security of the United States by the proliferation of ballistic and cruise missiles is significant and growing, both quantitatively and qualitatively.

(2) The deployment of effective Theater Missile Defense systems can will deny potential adversaries the option of escalating a conflict by threatening or attacking United States forces, coalition partners of the United States, or allies of the United States with ballistic missiles armed with weapons of mass destruction to offset the operational and technical advantages of the United States and its coalition partners and allies.

(3) The intelligence community of the United States has estimated confirmed that (A) the missile proliferation trend is toward longer range and more sophisticated ballistic missiles, (B) North Korea may deploy an intercontinental ballistic missil e capable of reaching Alaska or beyond within 5 years, and (C) although a new indigenously developed ballistic missile threat to the continental United States is not forecast within the next 10 years there is a danger that there are ways for dete rmined countries will to acquire intercontinental ballistic missiles in the near future and with little warning by means other than indigenous development.

(4) The deployment by the United States and its allies of effective defenses against ballistic missiles of all ranges, as well as against cruise missiles, can will reduce the incentives for countries to acquire such missiles or to augment existin g missile capabilities.

(5) The Cold War distinction between strategic ballistic missiles and nonstrategic ballistic missiles and, therefore, the ABM Treaty's distinction between strategic defense and nonstrategic defense, has changed because of technological advance ments and should be reviewed. is technologically and geostrategically outdated.

(6) The concept of mutual assured destruction, which was one of the major philosophical rationales rationale for the ABM Treaty and continued reliance on an offense only form of deterrence, is adversarial and bipolar in nature and is not< em>, is now questionable as a suitable basis for stability in a multipolar world and one in which the United States and the states of the former Soviet Union are seeking to normalize relations and eliminate Cold War attitudes and arrangements.

(7) By undermining the credibility of, and incentives to pursue, destabilizing first strike strategies, theater Theater and national missile defenses can contribute to the maintenance of strategic stability as missile threats proliferate and as t he United States and the former Soviet Union significantly reduce the number of strategic nuclear forces in their respective inventories.

(8) Although technology control regimes and other forms of international arms control can contribute to nonproliferation, such measures alone are inadequate for dealing with missile proliferation, and should not be viewed as alternatives to missi le defenses and other active and passive defenses.

(9) Due to limitations in the ABM Treaty which preclude deployment of more than 100 ground-based ABM interceptors at a single site, the United States is currently prohibited from deploying a national missile defense system capable of defen ding the continental United States, Alaska, and Hawaii against even the most limited ballistic missile attacks.

It is the policy of the United States to--

(1) deploy as soon as possible highly affordable and operationally effective theater missile defenses capable of countering existing and emerging theater ballistic missiles;

(2)(A) develop for deployment deploy a multiple-site national missile defense system that: (A) (i) is highly affordable and operationally effective against limited, accidental, and unauthorized ballistic missile attacks on the territory of the United States;, and (B) (ii) can will be augmented over time as the threat changes to provide a layered defense against limited, accidental, or unauthorized larger and more sophisticated ballist ic missile threats;

(B) initiate negotiations with the Russian Federation as necessary to provide for the national missile defense systems specified in section 235; and

(C) consider, if those negotiations fail, the option of withdrawing from the ABM Treaty in accordance with the provisions of Article XV of the Treaty, subject to consultations between the President and the Senate;

(3) ensure congressional review, prior to a decision to deploy the system developed for deployment under paragraph (2), of: (A) the affordability and operational effectiveness of such a system; (B) the threat to be countered by such a system; and (C) A BM Treaty considerations with respect to such a system.

(4) (3) improve existing cruise missile defenses and deploy as soon as practical defenses that are highly affordable and operationally effective against advanced cruise missiles;

(5) (4) pursue a focused research and development program to provide follow-on ballistic missile defense options;

(6) (5) employ streamlined acquisition procedures to lower the cost and accelerate the pace of developing and deploying theater missile defenses, cruise missile defenses, and national missile defenses; and

(7) (6) seek a cooperative transition to a regime that does not feature mutual assured destruction and an offense-only form of deterrence as the basis for strategic stability; and .

(8) carry out the policies, programs, and requirements of subtitle C of title II of this Act through processes specified within, or consistent with, the ABM Treaty, which anticipates the need and provides the means for amendment to the Treaty.

(a) Establishment of Core Program: To implement the policy established in section 233, the Secretary of Defense shall establish a top priority core theater missile defense program consisting of the following systems:

(1) The Patriot PAC-3 system, with which shall have a first unit equipped (FUE) in fiscal year 1998.

(2) The Navy Lower Tier (Area) system, with which shall have a user operational evaluation system (UOES) capability in fiscal year 1997 and an initial operational capability (IOC) in fiscal year 1999.

(3) The Theater High-Altitude Area Defense (THAAD) system, with which shall have a user operational evaluation system (UOES) capability in fiscal year 1997 and an initial operational capability (IOC) no later than fiscal year 2002.

(4) The Navy Upper Tier (Theater Wide) system, with which shall have a user operational evaluation system (UOES) capability in fiscal year 1999 and an initial operational capability (IOC) in fiscal year 2001.

(b) Interoperability and Support of Core Systems: To maximize effectiveness and flexibility, the Secretary of Defense shall ensure that core theater missile defense systems are interoperable and fully capable of exploiting external sensor and battl e management support from systems such as the Navy's Cooperative Engagement Capability (CEC), the Army's Battlefield Integration Center (BIC), air and space-based sensors including, in particular, the Space and Missile Tracking System (SMTS).

(c) Termination of Programs: The Secretary of Defense shall terminate the following programs:

(1) The Corps Surface to Air Missile system (Corps SAM).

(2) The Boost Phase Interceptor (BPI) program.

(d) Follow-on Systems: (1) The Secretary of Defense shall develop an affordable development plan for follow-on theater missile defense systems which leverages existing systems, technologies, and programs, and focuses investments to satisfy military requirements not met by the core program.

(2) Before adding new theater missile defense systems to the core program from among the follow-on activities, the Secretary of Defense shall submit to the congressional defense committees a report describing--

(A) the requirements for the program and the specific threats to be countered;

(B) how the new program will relate to, support, and leverage off existing core programs;

(C) the planned acquisition strategy; and

(D) a preliminary estimate of total program cost and budgetary impact.

(e) Report: (1) Not later than the date on which the President submits the budget for fiscal year 1997 under section 1105 of title 31, United States Code than 60 days after the date of the enactment of this Act, the Secretary of D efense shall submit to the congressional defense committees a report detailing the Secretary's plans for implementing the guidance specified in this section.

(2) For each deployment date for each system described in subsection (a), the report required by paragraph (1) of this subsection shall include the funding required for research, development, testing, evaluation, and deployment for each fiscal year beginn ing with fiscal year 1997 through the end of the fiscal year in which deployment is projected under subsection (a).

[Page: S12332]

(1) Ground-based interceptors capable of being deployed at multiple sites, the locations and numbers of which are to be determined so as to optimize the defensive coverage of the continental United States, Alaska, and Hawaii against limited, accidental, or unauthorized ballistic missile attacks.

(2) Fixed ground-based radars and space-based sensors, including the Space and Missile Tracking system, the mix, siting and numbers of which are to be determined so as to optimize sensor support and minimize total system cost.

(3) Battle management, command, control, and communications (BM/C3).

(b) Interim Operational Capability: To provide a hedge against the emergence of near-term ballistic missile threats against the United States and to support the development and deployment of the objective system specified in subsection (a), the Sec retary of Defense shall develop an interim national missile defense capability plan that would give the United States the ability to field a limited operational capability by the end of 1999 if required by the threat. , consistent with the techni cal requirements and schedule of such objective system to be operational by the end of 1999. In developing this plan capability the Secretary shall make use of--

(1) developmental, or user operational evaluation system (UOES) interceptors, radars, and battle management, command, control, and communications (BM/C3), to the extent that such use directly supports, and does not significantly increase the cost of, the objective system specified in subsection (a);

(2) one or more of the sites that will be used as deployment locations for the objective system specified in subsection (a);

(3) upgraded early warning radars; and

(4) space-based sensors.

(c) Use of Streamlined Acquisition Procedures: The Secretary of Defense shall prescribe and use streamlined acquisition procedures to--

(1) reduce the cost and increase the efficiency of developing the national missile defense system specified in subsection (a); and

(2) ensure that any the interim national missile defense capabilities developed pursuant to subsection (b) are operationally effective and on a path to fulfill the technical requirements and schedule of the objective system.

(d) Additional Cost Saving Measures: In addition to the procedures prescribed pursuant to subsection (c), the Secretary of Defense shall employ cost saving measures that do not decrease the operational effectiveness of the systems specified in subs ections (a) and (b), and which do not pose unacceptable technical risk. The cost saving measures should include the following:

(1) The use of existing facilities and infrastructure.

(2) The use, where appropriate, of existing or upgraded systems and technologies, except that Minuteman boosters may not be used as part of a National Missile Defense architecture.

(3) Development of systems and components that do not rely on a large and permanent infrastructure and are easily transported, emplaced, and moved.

(e) Report on Plan for Deployment: Not later than the date on which the President submits the budget for fiscal year 1997 under section 1105 of title 31, United States Code 60 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional defense committees a report containing the following matters:

(1) The Secretary's plan for carrying out this section.

(2) For each deployment date in subsections (a) and (b), the report shall include the funding required for research, development, testing, evaluation, and deployment for each fiscal year beginning with fiscal year 1997 through the end of the fiscal year i n which deployment is projected under subsection (a) or (b). The report shall also describe the specific threat to be countered and provide the Secretary's assessment as to whether deployment is affordable and operationally effective.

(3) (2) An analysis of options for supplementing or modifying the national missile defense architecture specified in subsection (a) before attaining initial operational capability, or evolving such architecture in a building block manner after at taining initial operational capability, to improve the cost-effectiveness or the operational effectiveness of such system by adding one or a combination of the following:

(A) Additional ground-based interceptors at existing or new sites.

(B) Sea-based missile defense systems.

(C) Space-based kinetic energy interceptors.

(D) Space-based directed energy systems.

(a) In General: The Secretary of Defense shall undertake an initiative to coordinate and strengthen the cruise missile defense programs, projects, and activities of the military departments, the Advanced Research Projects Agency and the Ballistic M issile Defense Organization to ensure that the United States develops and deploys highly effective affordable and operationally effective defenses against existing and future cruise missile threats.

(b) Actions of the Secretary of Defense: In carrying out subsection (a), the Secretary of Defense shall ensure that--

(1) to the extent practicable, the ballistic missile defense and cruise missile defense efforts of the Department of Defense are coordinated and mutually reinforcing;

(2) existing air defense systems are adequately upgraded to provide an affordable and operationally effective defense defend against existing and near-term cruise missile threats; and

(3) the Department of Defense undertakes a high priority and well coordinated technology development program to support the future deployment of systems that are highly affordable and operationally effective against advanced cruise missiles, incl uding cruise missiles with low observable features.

(c) Implementation Plan: Not later than the date on which the President submits the budget for fiscal year 1997 under section 1105 of title 31, United States Code 60 days after the date of the enactment of this Act, the Secretary of Defens e shall submit to the congressional defense committees a detailed plan, in unclassified and classified forms, as necessary, for carrying out this section. The plan shall include an assessment of--

(1) the systems that currently have cruise missile defense capabilities, and existing programs to improve these capabilities;

(2) the technologies that could be deployed in the near- to mid-term to provide significant advances over existing cruise missile defense capabilities, and the investments that would be required to ready the technologies for deployment;

(3) the cost and operational tradeoffs, if any, between upgrading existing air and missile defense systems and accelerating follow-on systems with significantly improved capabilities against advanced cruise missiles; and

(4) the organizational and management changes that would strengthen and further coordinate the cruise missile defense efforts of the Department of Defense, including the disadvantages, if any, of implementing such changes.

(a) Congress makes the following findings:

(1) Article XIII of the ABM Treaty envisions `possible changes in the strategic situation which have a bearing on the provisions of this treaty'.

(2) Articles XIII and XIV of the ABM Treaty establish means for the Parties to amend the Treaty, and the Parties have employed these means to amend the Treaty.

(3) Article XV of the ABM Treaty establishes the means for a party to withdraw from the Treaty, upon 6 months notice, `if it decides that extraordinary events related to the subject matter of this treaty have jeopardized its supreme interests.'

(4) The policies, programs, and requirements of subtitle C of title II of this Act can be accomplished through processes specified within, or consistent with, the ABM Treaty, which anticipates the need and provides the means for amendment to the T reaty.

(b) (a) Sense of Congress: In light of the findings and policies provided in this subtitle, it is the sense of Congress that--

(1) Given the fundamental responsibility of the Government of the United States to protect the security of the United States, the increasingly serious threat posed to the United States by the proliferation of weapons of mass destruction and ballistic miss ile technology, and the effect this threat could have on the options of the United States to act in a time of crisis--

(A) it is in the vital national security interest of the United States to defend itself from the threat of a limited, accidental, or unauthorized ballistic missile attack, whatever its source; and

(B) the deployment of a national missile defense system, in accord with section 233, to protect the territory of the United States against a limited, accidental, or unauthorized missile attack can strengthen strategic stability and deterrence; and

(2)(A) the Senate should (A) undertake a comprehensive review of the continuing value and validity of the ABM Treaty with the intent of providing additional policy guidance on the future of the ABM Treaty during the second session of the 104th Congress; and

(B) upon completion of the review, the Committee on Foreign Relations, in consultation with the Committee on Armed Services and other appropriate committees, should report its findings to the Senate.

(B) consider establishing a select committee to carry out the review and to recommend such additional policy guidance on future application of the ABM Treaty as the select committee considers appropriate; and

(2) the President should cease all efforts to modify, clarify, or otherwise alter United States obligations under the ABM Treaty pending the outcome of the review.

(b) ABM Treaty Negotiating Record: (1) To support the comprehensive review specified in subsection (a), the Secretary of Defense, in consultation with other appropriate officials of the executive branch, shall provide the Senate with a comp lete, declassified version of the ABM Treaty negotiating record, including--

(A) within 30 days after the date of the enactment of this Act, an index of the documents comprising the negotiating record; and

(B) within 60 days after the date of the enactment of this Act, the documents comprising the negotiating record in unclassified form.

(2) If the Secretary considers it necessary to do so, the Secretary may submit the documents referred to in paragraph (1)(B) in classified form when due under that paragraph. If the Secretary does so, however, the Secretary shall submit the documents in u nclassified form within 90 days after the date of the enactment of this Act.

(c) Waiver: The Secretary of Defense, after consultation with any select committee established in accordance with subsection (a)(1)(B) or, if no select committee, the Committee on Armed Services of the Senate, may waive the declassification require ment under subsection (b) on a document by document basis.

[Page: S12333]

(1) Section 234 of the National Defense Authorization Act for Fiscal Year 1994 provides that the ABM Treaty does not apply to or limit research, development, testing, or deployment of missile defense systems, system upgrades, or system components that are designed to counter modern theater ballistic missiles, regardless of the capabilities of such missiles, unless those systems, system upgrades, or system components are tested against or have demonstrated capabilities to counter modern strategic b allistic missiles.

(2) Section 232 of the National Defense Authorization Act for Fiscal Year 1995 provides that the United States shall not be bound by any international agreement that would substantially modify the ABM Treaty unless the agreement is entered into pu rsuant to the treaty making power of the President under the Constitution.

(3) the demarcation standard described in subsection (b)(1) is based upon current technology.

(b) Sense of Congress: It is the sense of Congress that--

(1) unless a missile defense system, system upgrade, or system component, including one that exploits data from space-based or other external sensors, is flight tested against a ballistic missile target that exceeds a range of 3,500 kilometers or a veloci ty of 5 kilometers per second, such missile defense system, system upgrade, or system component has not been tested in an ABM mode nor deemed to have been given capabilities to counter strategic ballistic missiles, and

(2) any international agreement that would limit the research, development, testing, or deployment of missile defense systems, system upgrades, or system components that are designed to counter modern theater ballistic missiles in a manner that would be m ore restrictive than the criteria in paragraph (1) should be entered into only pursuant to the treaty making powers of the President under the Constitution.

(c) Prohibition on Funding: Funds appropriated or otherwise made available to the Department of Defense for fiscal year 1996 may not be obligated or expended to implement an agreement with any of the independent states of the former Soviet Union en tered into after January 1, 1995 that would establish a demarcation between theater missile defense systems and anti-ballistic missile systems for purposes of the ABM Treaty or that would restrict the performance, operation, or deployment of Unite d States theater missile defense systems except: (1) to the extent provided in an act enacted subsequent to this Act; (2) to implement that portion of any such agreement that implements the criteria in subsection (b)(1); or (3) to implement such an agreem ent that is entered into pursuant to the treaty making power of the President under the Constitution.

(a) Policy Concerning Systems Subject to ABM Treaty: Unless and until a missile defense or air defense system, system upgrade, or system component, including one that exploits data from space based or other external sensors (such as the Spa ce and Missile Tracking System, which can be deployed as an ABM adjunct, or the Navy's Cooperative Engagement Capability), is flight tested in an ABM qualifying flight test (as defined in subsection (c)), such system, system upgrade, or sy stem component--

(1) has not, for purposes of the ABM Treaty, been tested in an ABM mode nor been given capabilities to counter strategic ballistic missiles; and

(2) therefore is not subject to any application, limitation, or obligation under the ABM Treaty.

(b) Prohibitions: (1) Appropriated funds may not be obligated or expended by any official of the Federal Government for the purpose of--

(A) prescribing, enforcing, or implementing any Executive order, regulation, or policy that would apply the ABM Treaty (or any limitation or obligation under such Treaty) to research, development, testing, or deployment of a missile defense or air defense system, system upgrade, or system component, including one that exploits data from space based or other external sensors; or

(B) taking any other action to provide for the ABM Treaty (or any limitation or obligation under such treaty) to be applied to research, development, testing, or deployment of a missile defense or air defense system, system upgrade, or system comp onent, including one that exploits data from space based or other external sensors.

(2) This subsection shall cease to apply with respect to a missile defense or air defense system, system upgrade, or system component, including one that exploits data from space based or other external sensors, when that system, system upgrade, or system component has been flight tested in an ABM qualifying flight test.

(c) ABM Qualifying Flight Test Defined: For purposes of this section, an ABM qualifying flight test is a flight test against a ballistic missile which, in that flight test, exceeds (1) a range of 3,500 kilometers, or (2) a velocity of 5 kilometers per second.

(d) Actions of the Secretary of Defense: Not later than 60 days after the date of the enactment of this Act, and each year thereafter in the annual report of the Ballistic Missile Defense Organization, the Secretary of Defense shall certify to Cong ress that no United States missile defense or air defense system, system upgrade, or system component is being limited, modified, or otherwise constrained pursuant to the ABM Treaty in a manner that is inconsistent with this section.

(e) Congressional Review of Range and Velocity Parameters: Congress finds that the range and velocity parameters set forth in subsection (c) are based on a distinction between strategic and nonstrategic ballistic missiles that is technically and ge ostrategically outdated, and, therefore, should be subject to review and change as part of the Senate's comprehensive review under section 237.

(a) Elements Specified: In the budget justification materials submitted to Congress in support of the Department of Defense budget for any fiscal year after fiscal year 1996 (as submitted in the budget of the President under section 1105(a) of titl e 31, United States Code), the amount requested for activities of the Ballistic Missile Defense Organization shall be set forth in accordance with the following program elements:

(1) The Patriot system.

(2) The Navy Lower Tier (Area) system.

(3) The Theater High-Altitude Area Defense (THAAD) system.

(4) The Navy Upper Tier (Theater Wide) system.

(5) Other Theater Missile Defense Activities.

(6) National Missile Defense.

(7) Follow-On and Support Technologies.

(b) Treatment of Non-Core TMD in Other Theater Missile Defense Activities Element: Funding for theater missile defense programs, projects, and activities, other than core theater missile defense programs, shall be covered in the `Other Theater Miss ile Defense Activities' program element.

(c) Treatment of Core Theater Missile Defense Programs: Funding for core theater missile defense programs specified in section 234, shall be covered in individual, dedicated program elements and shall be available only for activities covered by tho se program elements.

(d) BM/C3I Programs: Funding for programs, projects, and activities involving battle management, command, control, communications, and intelligence (BM/C3I) shall be covered in the `Other Theater Missile Defense Activities' program element or the ` National Missile Defense' program element, as determined on the basis of the primary objectives involved.

(e) Management and Support: Each program element shall include requests for the amounts necessary for the management and support of the programs, projects, and activities contained in that program element.

[Page: S12334]

The following provisions of law are repealed:

(1) The Missile Defense Act of 1991 (part C of title II of Public Law 102-190; 10 U.S.C. 2431 note).

(2) Section 237 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160).

(3) Section 242 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160).

(4) Section 222 of the Department of Defense Authorization Act, 1986 (Public Law 99-145; 99 Stat. 613; 10 U.S.C. 2431 note).

(5) Section 225 of the Department of Defense Authorization Act, 1986 (Public Law 99-145; 99 Stat. 614).

(6) Section 226 of the National Defense Authorization Act for Fiscal Years 1988 and 1989 (Public Law 100-180; 101 Stat. 1057; 10 U.S.C. 2431 note).

(7) Section 8123 of the Department of Defense Appropriations Act, 1989 (Public Law 100-463; 102 Stat. 2270-40).

(8) Section 8133 of the Department of Defense Appropriations Act, 1992 (Public Law 102-172; 105 Stat. 1211).

(9) Section 234 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160; 107 Stat. 1595; 10 U.S.C. 2431 note).

(10) Section 235 of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337; 108 Stat. 2701; 10 U.S.C. 221 note).