WASHINGTON, D.C. - Thirty-two members of the United States Congress and their lawyers will
decide next week whether to appeal a federal judge's ruling Monday that they have no
standing to challenge President George W. Bush's withdrawal from the 1972 Anti-Ballistic
Missile (ABM) Treaty in a higher court, according to one of the attorneys on the case.
still have a very strong case on the merits," said John Burroughs of the Lawyers Committee on Nuclear Policy (LCNP)
which helped bring the case by Democrats in the House of Representatives last year after
Bush announced that he was abandoning the treaty despite its ratification by more than
two-thirds of the U.S. Senate almost 30 years ago.
The treaty was negotiated by the U.S. and Soviet Union as part of Cold War efforts to
control the offensive arms race. It regulates the type and scope of national missile
defense systems and provides for, among other safeguards, satellite monitoring to ensure
compliance. Ballistic missiles can act as carriers for chemical, biological, and nuclear
The lawmakers who brought the case, led by Ohio Representative Dennis Kucinich, argued
that Bush--whose plan to deploy an anti-missile system in Alaska by 2004 would lead to a
violation of the ABM Treaty if it were still in effect--was required to seek congressional
approval before being able to withdraw from the treaty.
But in a 31-page opinion, Judge John Bates, a Bush appointee, dismissed the case on two
grounds: that a minority of congressmen had "no standing" to bring the case to
court and that the issue of how to terminate treaties constituted a "political
question" that could not be resolved by the courts except as a possible "last
"[I]n the year since President Bush announced his intention to withdraw from the
ABM Treaty, neither the House nor Congress has made any attempt whatsoever to register
disapproval as a body, or to insist on a role in the termination of the treaty,"
according to Bates, who said he did not want "to encourage congressmen to run to
court any time they disagreed with presidential action...or were on the losing end of a
piece of legislation."
Responding to the decision, Kucinich said he had not decided whether to appeal it to a
higher court but stressed his belief that the president should not be able to withdraw
from treaties -- which, on ratification, become the "law of the land"--without
providing some role for Congress. "The administration is undermining both national
and international security by taking a wrecking-ball to the Constitution and international
agreements," he said.
Treaty termination is a murky area in U.S. constitutional law. The only time that the
issue has been addressed by the Supreme Court, a 1979 case involving President Jimmy
Carter's withdrawal from the Taiwan Mutual Defense Treaty, the justices split on the issue
with a bare majority of five agreeing to dismiss the case.
The language used in the Bates ruling Monday suggested that if the House or Congress as
an institution, rather than a minority of disaffected members, had registered disapproval
of Bush's action in some formal way, the courts may be prepared to step in to rule on a
"Congress should now make clear that henceforth the President must seek its
consent to termination of any treaty consistent with historical practice in the vast
majority of treaty terminations," LCNP's Burroughs said. "Future decisions
regarding matters as momentous as withdrawal from the ABM Treaty must involve Congress if
the United States is to remain a democracy." The alternative, he said, permits the
president to "rule by fiat" in deciding which treaties to honor and which to
The lawmakers' lead attorney, Peter Weiss, said the ruling was ominous, particularly
given the recent decision by the same judge that Congress's investigative agency, the
General Accounting Office, had no standing to obtain a court order compelling disclosure
of information on meetings of the energy task forced chaired by Vice President Dick
Together, the two decisions by Bates "place a heavy burden on Congress to provoke
full-blown political crises in order to obtain from the courts rulings interpreting the
Constitution...Such 'institutional' challenges are unlikely to occur at any time; they are
virtually impossible when, as now, the President's party controls Congress," said
Weiss. "Thus both decisions represent a considerable advance toward the imperial
presidency and a commensurate retreat from constitutional government."