Suing the president: members of Congress are endeavoring to prevent Pres. Bush from abrogating treaties without Congressional consent.

• Author: Eisendrath, Craig
• Position: National Affairs

ON JUNE 11, 2002, 32 members of Congress, led by Dennis Kucinich (D.-Ohio), filed a lawsuit to block Pres. Bush from withdrawing from the 1972 Anti-Ballistic Missile Treaty. It named the President, Secretary of State Colin Powell, and Secretary of Defense Donald Rumsfeld as defendants. The lawsuit asked a decision from the Federal courts on whether or not the Constitution permits the President to withdraw from the treaty without the consent of Congress. According to the suit, the Constitution says treaties, once approved by the Senate and White House, are Federal law, and that the President does not enjoy the power to repeal such laws without Congressional approval.

The action followed an announcement in December, 2002, that the President was giving the required six months notice to withdraw from the ABM Treaty. At stake, however, was not just that treaty, but all those the U.S. is signatory to. If the President could withdraw from the ABM Treaty, he could, without Congressional consent, withdraw from any treaty to which the U.S. was a signatory, the United Nations, the Limited Test Ban of, 1963, or the Non-proliferation Pact of 1968. Congress would be out of the picture.

As part of the team putting the suit together, I had the responsibility for strategic questions--I am not a lawyer, but a foreign policy specialist--and for lobbying. On the legal side, I was assured that, in a vast majority of treaty termination cases, Congress was involved, either with majority actions by both houses or by two-thirds of the Senate, the formula used for treaty ratification. Indeed, it seemed logical that, if Congress was involved in ratifying treaties, it should be equally involved in withdrawing from them. What made the case difficult is that the Constitution lays out the two-thirds requirement for ratification, but says nothing about withdrawal. In the most-prominent example, in a 1979 case concerning Pres. Jimmy Carter's withdrawal from the Taiwan Mutual Defense Treaty, the Supreme Court had refused to role whether a president can withdraw from a treaty without Congressional approval.

From the strategic point of view, Kucinich and the other plaintiffs strongly believed the U.S. needed Congress to be a party to withdrawal. If the President, on his own discretion, could withdraw, this put the credibility of any of our treaty commitments in jeopardy in the eyes of other nations. At a time when Bush had refused adherence to the Comprehensive Nuclear Test Ban and was pushing military development of outer space in possible violation of the 1967 Treaty on the Peaceful Uses of Outer Space, as well as undermining conventions on chemical and bacteriological weapons and on banning land mines, this additional measure would weaken the arms control regime still further.

The ABM Treaty was an extremely important piece of the network of pacts that had kept the world out of nuclear war since Hiroshima and Nagasaki. Without it, the signatories--the U.S. and the Soviet Union--would never have known just what percentage of their missiles would survive the other side's missile defenses. This would have meant a ratcheting up of the defense budgets, which, during the Cold War, were already incredibly high. The treaty's usefulness could be seen as continuing after the Cold War as well. For China, for example, the end of the ABM Treaty would induce further deployment of intercontinental ballistic missiles (ICBMs) to maintain the credibility of its deterrent. (China has had 20 ICBMs pointed at the U.S. since the 1980s.) For North Korea, it would mean the need for further testing...