ABM Treaty still lives, say congressmen who sue to undo its 'unconstitutional' knifing by Bush without OK of Congress

A WALL news report

    Although President George W. Bush may consider the Anti-Ballistic Missile Limitation Treaty of 1972 (ABM Treaty) dead as of the 13th of June, 33 members of Congress headed by Rep. Dennis J. Kucinich (D-OH) maintain that it is still legally alive.

    A lawsuit was filed against President Bush, Secretary of State Colin L. Powell, and Secretary of Defense Donald H. Rumsfeld on June 11. Congressmen asked the U.S. District Court in Washington, DC, to declare Bush's action in terminating the treaty without congressional authorization unconstitutional. Bush's six-month termination notice to Russia expired as June 13 arrived.

    "This is a case arguing that the president does not have the authority under the Constitution to terminate a treaty without a majority of both houses of Congress or two-thirds of the Senate," said Peter Weiss, the lead attorney, a constitutional lawyer of New York City, in a telephone conversation.

    The 33 plaintiffs, all representatives, include nine from California, four from New York, and three each from Illinois and Ohio. All are Democrats except for one independent, from Vermont.

    The Californians are Rep. Bob Filner of Chula Vista; Reps. Hilda Solis, Maxine Waters, and Dianne Watson, all of Los Angeles; Rep. Lynn Woolsey of Marin and Sonoma Counties; Rep. Sam Farr of Monterey, Salinas, and Santa Cruz; and Reps. Barbara Lee, George Miller, and Fortney H. (Pete) Stark, all from the Oakland-East Bay area. (Others are listed below.)

    Rep. Kucinich, the lead plaintiff, from Cleveland, Ohio, has introduced bills to ban "the weaponization of space" and to establish a U.S. "Department of Peace."

    Senators such as Russell D. Feingold (D-WI) who had thought of joining the suit were forbidden to do so by the Senate Select Committee on Ethics, headed by Senator Harry Reid (D-NV). The reason given had to do with legal services that the lawyers had offered without charge

The complaint

    Pointing out that the issue of presidential termination of treaties has never been decided by the courts, the "Complaint for Declaratory Relief" calls the issue "of supreme importance to the constitutional framework of this nation as well as the treaty-based system of international law."

    The complaint refers to "ample evidence that the Framers intended Congress to have a role in the termination as well as the making of treaties."

    It charges that President Bush's "proposed termination" of the ABM Treaty on his own violates the treaty power in Article II, Section 2, of the Constitution and "is inconsistent with two centuries of practice and with the overall design of separation of powers and checks and balances of the Constitution."

    Furthermore, the complaint charges, "Since treaties have the status of laws, the President's proposed termination of the ABM Treaty without the assent of Congress violates Article II, Section 3, of the Constitution, which obliges the President to take care that the laws be faithfully executed."

    The plaintiffs seek a court order with two main parts:

    "(a) Declaring that the President's withdrawal from the ABM Treaty is without force and effect until such time as the President has requested and received the assent of a majority of both Houses of Congress or two thirds of the Senate;

    "(b) Ordering that the Secretary of State, the Secretary of Defense and their subordinate officers are enjoined from taking any action in violation of the ABM Treaty until its termination has received the assent of a majority of both Houses of Congress or two thirds of the Senate."

Groups in California initiated movement

    The suit is the latest development in a movement spearheaded by two groups in northern California. The War and Law League (WALL -- www.warandlaw.homestead.com) had taken a position identical to that of the plaintiffs in communications with Congress, starting in mid-December. WALL and the Nuclear Peace Action Group, centered in San Francisco and Mendocino respectively, secured nearly 5,000 names on petitions.

    Most of WALL's petitions, addressed to Senators Barbara Boxer and Dianne Feinstein (an ABM Treaty supporter), were delivered to them in Washington June 5 by Harry A. Scott of Hayward, Calif., WALL's treaty committee chairman. They were headed, "Stop Bush's bid for one-man rule! A president cannot lawfully scrap treaties on his own." Seeking a resolution affirming congressional treaty authority, or at least Senate hearings, WALL argued:

    The Mendocino group, headed by Dr. Carol Wolman, a psychiatrist, issued unaddressed petitions, both on line and on paper, that called for the Senate to vote on the ABM Treaty.

GOP senators sued "dictatorial" president

    The Constitution is silent on termination of treaties -- but then it says nothing about repeal of statutes either, something no president could get away with.

    Pursuant to acts of Congress, or sometimes, Senate resolutions, presidents declared some 50 treaties terminated, starting in 1798 when Congress passed and President John Adams signed a bill to abrogate the treaties with France. Jefferson, Madison, and seven federal judges agreed that some congressional action was needed to end a treaty.

    In 1979, 25 members of Congress headed by the late Senator Barry Goldwater sued President Jimmy Carter over his termination of the mutual defense treaty with Taiwan after he recognized the Communist government of China.

    The District Court in Washington, DC, agreed with Goldwater that some congressional action -- either a majority vote of both houses or two-thirds of the Senate -- was needed to terminate a treaty. The Court of Appeals there reversed the ruling. The Supreme Court, evading the constitutional question and issuing no majority opinion, vacated both decisions and ordered the District Court to dismiss the case. The legal issues remain unsettled.

    Goldwater said, at a hearing in 1979, that to allow a president to withdraw from a treaty on his own was giving him "virtually a dictator's power." Senators Hatch, Helms and Thurmond were plaintiffs in Goldwater vs. Carter and still serve in the Senate today -- but they support now what they opposed then.

Is Bush a "Party"?

    The ABM Treaty provided that either "Party" might give a six-month notice of termination if "extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests." But it specified "The United States of America" -- not the president of the USA -- as one of the two "Parties." Indeed, it provided that the treaty would be subject to ratification "in accordance with the constitutional procedures of each Party."

    In 1972 the ABM Treaty was signed by President Richard Nixon and Leonid Brezhnev and approved by the Senate by a vote of 88 to 2. George W. Bush gave notice of termination on Dec. 13, 2001, without a vote of either the Senate or the House of Representatives.

    The new treaty on nuclear weapons stockpiles that Bush recently signed with President Putin of Russia permits termination on only three months notice and fails to specify who in the U.S.A. decides. The Nuclear Peace Action Group and WALL want the Senate to insist on a change in that provision when it receives the treaty for its consent.

Other plaintiffs and lawyers

    The other 23 members of the House of Representatives participating in the lawsuit are listed below by state.

ALABAMA -- Earl F. Hilliard

FLORIDA -- Alcee L. Hastings

GEORGIA -- Cynthia McKinney

HAWAII -- Patsy T. Mink

ILLINOIS -- Lane Evans, Jesse Jackson, Jr., Janice D. Schakowsky


MICHIGAN -- John Conyers, Jr., Carolyn C. Kilpatrick

MINNESOTA -- James L. Oberstar

MISSOURI -- William L. Clay, Jr.

NEW YORK -- Maurice D. Hinchey, Gregory W. Meeks, Jerrold Nadler, Edolphus Towns

OHIO -- Stephanie Tubbs Jones, Marcy Kaptur

OREGON -- Peter A. De Fazio

TEXAS -- Sheila Jackson Lee

VERMONT -- Bernard Sanders (ind.)

WASHINGTON -- Jim McDermott

WISCONSIN -- Tammy Baldwin

    There were 31 plaintiffs when the suit was filed. Reps. Dianne Watson of California and Sheila Jackson Lee of Texas joined later.

    Weiss, the attorney, and colleague John Burroughs belong to the Lawyers Committee on Nuclear Policy, sponsor of the lawsuit along with the Center for Constitutional Rights; both groups have headquarters in New York City. Julius Lobel and Michael Ratner of the center are assisting in the suit.

    Other attorneys for the plaintiffs are Bruce Ackerman, professor of law and political science at Yale University; Edward A. Aguilar of Philadelphia, with the Lawyers Alliance for World Security; James R. Klimaski of the DC bar; and Jeremy Manning of New York City.

June 21, 2002

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The WALL pamphlet "Treaty Termination: A Presidential Decree Is Not Enough" is also available; $1 defrays printing and mailing costs.