Judge Allows Bush's Withdrawal
from ABM Treaty to Stand;
Future Role of Congress Preserved


In a December 30, 2002 decision, Judge John Bates of the U.S. District Court in Washington, D.C., ruled that lead plaintiff Representative Dennis Kucinich and 31 other members of the House of Representatives have no standing to challenge President Bush’s withdrawal from the Anti-Ballistic Missile (ABM) Treaty without congressional approval. He also held that the case presents a "political question" not suitable for resolution by the courts. The judge accordingly did not rule on the merits of whether or not the Constitution requires a president to obtain congressional consent to termination of a treaty.

In a 31-page written opinion, Judge Bates left open the possibility that in the future, Congress as a whole may be able to invoke the aid of the judiciary in constitutional disputes over treaty termination or other matters with the President. He noted that in this case, "there is no claim that Congress, as an institution, has asserted its role in the treaty termination process."

In a January 1, 2003 press release, Peter Weiss, LCNP president and lead counsel for plaintiffs, commented: "Judge Bates’ decision places a heavy burden on Congress to provoke full-blown political crises in order to obtain from the courts rulings interpreting the Constitution, which is, after all, the business of the courts. Such ‘institutional’ challenges are unlikely to occur when, as now, the President’s party controls Congress. It is equally unlikely that a Congress, regardless of which party controls it, will challenge the President’s decisions concerning national security at a time when the President has declared war on terrorism and asked everyone to close ranks behind him." Weiss concluded, "Thus the decision represents a considerable advance toward the imperial presidency and a commensurate retreat from constitutional government." (See also analysis by Mr. Weiss)

John Burroughs, LCNP executive director and one of plaintiffs’ lawyers, commented: "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 framers of the Constitution rejected the monarchical system of government and did not intend that a president could rule by fiat."

In a December 30 statement, Representative Kucinich said, "The Administration is undermining both national and international security by taking a wrecking-ball to the Constitution and international agreements."

On the advice of their lawyers, Rep. Kucinich and the other congressional plaintiffs decided not to appeal the case, recognizing that Bates’ decision preserves the potential role of future Congresses with respect to treaty termination and that in the present political climate appellate rulings could very well be less favorable.

Kucinich v. Bush, filed on June 11, 2002, named as defendants President George W. Bush, Secretary of State Colin Powell, and Secretary of Defense Donald Rumsfeld. The House Members bringing the lawsuit were: Dennis Kucinich, D-10-Ohio; James Oberstar, D-8-MN; Patsy Mink, D-2-HI; Tammy Baldwin, D-2-WI; Peter DeFazio, D-4-OR; John Olver, D-1-MA; Sam Farr, D-17-CA; Barbara Lee, D-9-CA; Maurice Hinchey, D-26-NY; John Conyers, D-14-MI; Hilda Solis, D-31-CA; Janice Schakowsky, D-9-IL; Alcee Hasting, D-23-FL; Fortney (Pete) Stark, D-13-CA; Bernard Sanders, I-1-VT; Earl Hilliard, D-7-AL; Carolyn Kilpatrick, D-15-MI; Lane Evans, D-17-IL; Jim McDermott, D-7-WA; Bob Filner, D-50-CA; Cynthia McKinney, D-4-GA; George Miller, D-7-CA; Lynn Woolsey, D-6-CA; William Lacy Clay, D-1-MO; Edolphus Towns, D-10-NY; Maxine Waters, D-35-CA; Jesse Jackson, Jr., D-2-IL; Gregory Meeks, D-6-NY; Marcy Kaptur, D-9-OH; Jerrold Nadler, D-8-NY; Stephanie Tubbs Jones, D-11-OH; and Sheila Jackson-Lee, D-18-TX.

They were represented by James Klimaski, Klimaski & Grill, P.C. Washington, DC; Peter Weiss and John Burroughs, Lawyers’ Committee on Nuclear Policy, New York, NY; Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School, New Haven CT ; Jeremy Manning, Esq., New York, NY; Jules Lobel and Michael Ratner, Center for Constitutional Rights, New York, NY; Edward Aguilar, Philadelphia Lawyers Alliance for World Security, Philadelphia, PA; and Michael Veiluva, Western States Legal Foundation, Oakland, CA.

The decision and the main papers filed in the case are available online, in pdf format, at http://www.lcnp.org/disarmament/ABMlawsuit/indexoflinks.htm



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