not scrap treaties
without lawful authority
Imagine a news story like this: "BUSH ABANDONS 4 TREATIES! ... President Bush announces that 'in the interests of defense' he is withdrawing from the nuclear nonproliferation and START Treaties and the Chemical and Biological Weapons Conventions."
If on his own he can kill ABM Ð the Anti-Ballistic Missile Limitation Treaty Ð what stops him from abandoning the above treaties, or the UN Charter, or the 1949 Geneva Convention (which he currently seeks to circumvent)?
When President George W. Bush gave Russia notice in December that in June 2002 the U.S. would withdraw from ABM, he had no congressional authorization to do so. It is as though he alone is repealing a statute, for a treaty is federal law under Article 6 of the Constitution.
Under Article 2, a president has the power to make treaties "by and with the advice and consent of the Senate ... provided two-thirds of the senators present concur." The Constitution does not expressly provide for unmaking treaties; but then it says nothing about repealing statutes either, and no president could get away with that.
In 1972 the Senate voted for ABM by 88 votes to 2. Shall one man end it?
The matter of treaty termination first came up in 1798, when Congress passed and President John Adams signed a bill to abrogate the treaties with France, as war with her threatened. Jefferson, his successor, wrote that only an act of Congress could undo a treaty. Madison, the next president, saw "the same authority precisely being exercised in annulling as in making a Treaty."
Pursuant to acts of Congress or, sometimes, Senate resolutions, presidents declared about 50 treaties terminated. Seven federal judges agreed that some form of congressional action was part of the process. For instance, appellate Judge George E. MacKinnon wrote (in Goldwater v. Carter, 1979): "... When the Constitution explicitly requires the vote of two-thirds of the Senators present to ratify a treaty ... a contention that the same Constitution would vest absolute power in one official to terminate that treaty is clearly contrary to the constitutional design."
The issue reached the Supreme Court just once, in 1979, but the court ducked the constitutional question. It dismissed a suit by 25 members of Congress challenging President Carter's unilateral abandonment of the Taiwan defense treaty. Justice (now Chief Justice) Rehnquist and three colleagues said they were leaving the matter to the legislative and executive branches. Seven new justices have since joined the court, and who knows how they would rule?
The Constitution is in crisis. Bush's ABM action is a bid for one-man rule. Congress needs to act fast, but so far it has done nothing. As usual, it seems to be submitting meekly to presidential dictatorship.
The Senate could well adopt a resolution declaring that a two-thirds vote of the Senate or a majority vote of both houses of Congress is needed to terminate a treaty. At least, the Senate should bring the issues into the open.
Let's ask for public hearings on the president's ABM termination and the treaty power in general. Big questions must be asked and answered: Under the Constitution, may a president dictate withdrawal from a treaty? When a treaty can be torn up at the whim of a president, how does it affect international law and world security?
The Constitution Subcommittee of the Senate Judiciary Committee could hold hearings. Constituents of the senators listed below -- members of that subcommittee -- need to get in touch with them by telephone, fax, e-mail, or U.S. mail.
All senators can be reached by letter or postal card at this address: U.S. Senate, Washington, DC 20510. Click here for a petition you can use to gather signatures yourself.
If you live in any of the listed states, ask your senator to call for public hearings on the urgent question of the termination of treaties.
Tell him that the Senate's treaty power may be lost in June. The main question is whether it contradicts the Constitution for the president to dictate the end to treaties.
This is not a Democratic or a Republican issue but a constitutional issue -- one that gravely affects the whole world. To let the president withdraw from a treaty without any action in Congress "would be giving the president virtually a dictator's powers." That was said in 1979 by the late Senator Barry Goldwater.
Why can't the Senate debate this issue?
WISCONSIN -- Senator Russell D. Feingold, chairman of the Constitution Subcommittee; tel. 202-224-5323; fax 202-224-2725; firstname.lastname@example.org.
VERMONT -- Senator Patrick J. Leahy, chairman of the Judiciary Committee (and a member of its Constitution Subcommittee; tel. 202-224-4242; fax 202-224-3479; email@example.com.
MASSACHUSETTS -- Senator Edward M. Kennedy, tel. 202-224-4543; fax 202-224-2417; firstname.lastname@example.org.
NEW YORK -- Senator Charles E. Schumer, tel. 202-224-6542; fax 202-228-3027; email@example.com.
ILLINOIS -- Senator Richard J. Durbin, tel. 202-224-2152; fax 202-228-0400; firstname.lastname@example.org.
UTAH -- Senator Orrin G. Hatch, ranking minority member of the Constitution Subcommittee; tel. 202-224-5251; fax 202-224-6331; email@example.com.
SOUTH CAROLINA -- Senator Strom Thurmond, ranking minority member of the Judiciary Committee and a member of its Constitution Subcommittee; tel. 202-224-5972; fax 202-224-1300; firstname.lastname@example.org.
KENTUCKY -- Senator Mitch McConnell, tel. 202-224-2541; fax 202-224-2499; email@example.com.
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Other key senators, not on the above committee, are the following, all Democrats. Any of them could conduct hearings.
DELAWARE -- Senator Joseph R. Biden, Jr., chairman of the Senate Foreign Relations Committee, telephone(committee office) 202-224-4651, fax 202-228-1608; firstname.lastname@example.org.
MICHIGAN -- Senator Carl Levin, chairman of the Senate Armed Services Committee, telephone (committee office) 202-224-3871, fax 202-228-0036; email@example.com.
CALIFORNIA -- Senator Dianne Feinstein, chairman of the Subcommittee on Technology, Terrorism, and Government Information of the Senate Judiciary Committee. Telephone at Senator Feinstein's own office: 202-224-5323; fax 202-228-3954; e-mail firstname.lastname@example.org.
CALIFORNIA -- Senator Barbara Boxer, chairman of the Subcommittee on International Operations and Terrorism of the Senate Foreign Relations Committee. Telephone there: 202-224-4651; fax 202-228-1608. Telephone at Senator Boxer's own office: 202-224-3553; no public fax; e-mail email@example.com.
For a free newsletter, write WALL, P.O. Box 42-7237, San Francisco, CA 94142; e-mail firstname.lastname@example.org; fax (415)564-2083; or phone (510)538-0209.
The WALL pamphlet "Treaty Termination: A Presidential Decree Is Not Enough" is also available; $1 defrays printing and mailing costs.