The New Treaty

The following letter appeared in The Daily Review, Hayward, Calif., on May 30, 2002:


   We are glad President Bush now realizes that the agreement between the U.S. and Russia to reduce nuclear weapons stockpiles must be in a treaty, which demands the consent of the Senate. Sens. Joseph Biden and Jesse Helms of the Senate Foreign Relations Committee had pointed out that the Constitution required a treaty, not just a handshake.

   But it is contradictory for Bush to send a treaty to the Senate for approval while asserting that a president has the power to do away with or modify treaties at will.

   Without a vote of either house of Congress, he has decreed the withdrawal of the United States next month [June] from the Treaty for the Limitation of Anti-Ballistic Missile Systems, which Richard Nixon and Leonid Brezhnev signed in 1972 and the Senate approved by a vote of 88-2.

   It takes a two-thirds vote of the Senate to approve a treaty. Doesn't it nullify the Senate's treaty power for the president alone to disapprove it? Moreover, inasmuch as a treaty is a federal law under Article 6 of the Constitution, doesn't it amount to his repealing a law without any congressional vote? Madison, Jefferson and seven federal judges affirmed the need for congressional action by the Senate or by both houses to end a treaty.

   Moreover, what is the effect on world security of showing the world that treaties between the United States and other nations may be torn up at the whim of one man?

   Senators need to act at once to assert their constitutional treaty power before they lose it. They should at least conduct public hearings. The main issue is not whether they like ABM, but whether it contradicts the Constitution for the president to dictate the termination of a treaty.

Paul W. Lovinger San Francisco
Harry A. Scott Hayward

Representing the War and Law League,

   The above letter alluded to the one sent in March to the secretary of state by Senator Biden (D-Del.), chairman of the Senate Foreign Relations Committee, and Senator Helms (R-NC), the committee's ranking minority member.

   The two senators demanded that any agreement with Russia for nuclear arms reductions be submitted to the Senate as a formal treaty. President Bush had planned to seal the deal with President Putin through a handshake.

   Senator Helms agreed to appear at a reception June 12 to celebrate Bush's scuttling of the ABM Treaty. In 1979 Senator Helms was one of about 25 members of Congress, led by the late Senator Barry Goldwater, who sued President Carter for terminating a treaty (the U.S-Taiwan Mutual Defense Treaty) without any congressional approval. (The Supreme Court evaded the constitutional question, which remains unsettled.)

   That treaty, like ABM, provided that either "party" might withdraw on six-months' notice. Senator Goldwater commented during hearings before the Senate Foreign Relations Committee in 1979:

   "Now, if 'party' means 'president,' then any president will be able to wake up in the morning and decide, by himself, that the United States is withdrawing from any one of these important treaties without any power in Congress to stop him. That would be giving the President virtually a dictator's powers."

   In failing to stop President Bush's grab of the constitutional treaty power, isn't that what Senator Helms and the other senators are giving Bush --"virtually a dictator's powers"?

   The proposed new treaty with Russia provides for termination on only three months' notice, and it does not state who makes the decision.

   The Senate will do well to resolve that ending this treaty -- or any other treaty -- takes a two-thirds vote of the Senate or a majority vote of both the Senate and the House of Representatives.

   Senators should tell Bush in effect, "We will not give birth to any treaty that you can kill."

   These were questionable main headlines:

"Bush and Putin sign historic arms pact / Nuclear accord slashes arsenal by two-thirds"
-- San Francisco Chronicle PM, 5-24-02
"Bush and Putin Sign Pact for Steep Nuclear Arms Cuts"
-- The New York Times, 5-25-02
"Bush and Putin Sign Nuclear Arms Treaty / PACT: warheads would be cut by two-thirds by 2012..."
-- Los Angeles Times, 5-25-02
"Treaty hailed; frictions remain / The United States and Russia agree to reduce their arsenal in what Presidents Bush and Putin salute as a new era of cooperation..."
-- San Jose Mercury News, 5-25-02

   Many questions arise for senators and the rest of us:

   Where are the "steep nuclear arms cuts," when the U.S. and Russia will not destroy any of their nuclear arms but just store some of them?

   Could putting nuclear weapons into storage increase the chances of their getting into the hands of other governments and terrorists?

   How is it a "new era," when U.S. and Russian missiles are still aimed at each other?

   What is the good of any treaty if a president can tear it up at will? And does a president have the constitutional right to dictate the termination of a treaty?