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Published on Friday, January 3, 2003 by

U.S. Lawmakers Consider Appeal Over Court Ruling on Weapons Pact

by Jim Lobe

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.

"We 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 weapons.

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 resort."

"[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 question.

"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 renounce.

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 Cheney.

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."



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