Newsletter of the Lawyers’ Committee on Nuclear Policy
Fall 2001 Vol. 13, No.2

Past issues

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Congress and the Fate of the ABM Treaty
by John Burroughs and Robert Boehm

Selected Articles :

September 11:
A Rule-of-Law Response
by John Burroughs
War: Metaphor into Reality
by Peter Weiss
Crime(s) of Terror: Developing Law and Legal Institutions
by Saul Mendlovitz

Reactions to September 11, 2001
UN Resolution re: September 11

Disarmament Also Needs Coalitions
by Jim Wurst
Congress and the Fate of the ABM Treaty
by John Burroughs and Robert Boehm
Small Arms Conference
by Jim Wurst

Notable Books:
Losing Control - Global Security in the Twenty-First Century
by Janet Bloomfield
Lethal Arrogance: Human Fallibility and Dangerous Technologies
by Jackie Cabasso

Hiroshima Reflections:
Hearing the Hibakusha in Light of September 11
by Anabel Dwyer

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Despite the devastating demonstration on September 11 of the real security problems faced by the United States, and despite the apparent need for Russian cooperation in bringing to justice the attacks’ planners and perpetrators, after September 11 the Bush administration continued its crusade to remove the Anti-Ballistic Missile (ABM) Treaty as an obstacle to testing and deployment of anti-missile systems. Given the highly experimental nature of those systems, the treaty for the present in fact is only a theoretical barrier, but bashing it is the most practical way for missile defense true believers to show their bona fides. On September 17, Undersecretary of State John Bolton went to Moscow to make the US case against the ABM Treaty and for missile defenses once again. Absent Russian agreement to joint withdrawal from the treaty and its replacement with an ill-defined new framework, the administration seems prepared to unilaterally withdraw from the treaty.

Prior to September 11, many Senate Democrats were ready to oppose funding of activities that would violate the ABM Treaty. In a straight party line vote of 13-12 the Armed Services Committee passed a Defense Authorization Bill that included a provision for an expedited congressional vote on whether an activity is permitted if the administration determines that it is in conflict with the requirements of the treaty. But after September 11, Democratic leaders agreed to remove the provision for the sake of national unity. Instead, they say, it will be placed into a separate bill and brought up later. Unfortunately, it will then be more vulnerable to filibuster and veto.

This or a similar approach is warranted (see sidebar). The September 11 atrocities only strengthened the case for adherence to the ABM Treaty. No less than George Bush senior stated that they should "erase the concept in some quarters that America can somehow go it alone in the fight against terrorism or in anything else for that matter." Unilateral US withdrawal from the ABM Treaty would be highly provocative to Russia and China and place heavy strains on US relationships with allies. More fundamentally, spending in the tens or hundreds of billions on missile defense is a diversion from real US security needs, from the suppression of terrorism to the development of a just world order inimical to terrorism.

Nor did the September 11 attacks in any way alter the fundamental problems caused by US pursuit of missile defenses. These include impeding further US-Russian arms reductions; stimulating or reinforcing a Chinese buildup of its arsenal, with attendant ripple effects on India and Pakistan and perhaps even Japan; making dealerting much more difficult to implement; and opening the way to weaponization of space. The above highly foreseeable consequences would cause at least the United States, Russia, and China to be in a state of apparently permanent breach of their Article VI obligation under the Nuclear Nonproliferation Treaty, as interpreted by the International Court of Justice, to pursue in good faith and conclude negotiations on nuclear disarmament in all its aspects. This in turn would seriously erode the capacity of the nonproliferation regime to prevent the spread of nuclear weapons.

Nobody likes the condition of mutual vulnerability to annihilation assumed by the ABM Treaty. The way to get beyond this condition is not to withdraw from the treaty, but rather to proceed expeditiously with reduction, dealerting, and elimination of nuclear forces.

Unilateral US withdrawal from the ABM Treaty would also have negative effects on international and constitutional law. The ABM Treaty provides for withdrawal upon six months notice to the other party of "extraordinary events related to the subject matter of this Treaty" that the withdrawing state "regards as having jeopardizing its supreme national interests". Sadly, we have just witnessed extraordinary events, but they have nothing to do with a missile threat. Should the United States invoke this provision in the manifest absence of any compelling reason to do so, it would act in a contemptuous manner towards obligations it solemnly assumed, and set a precedent for itself and other states to cite parallel provisions in other important security treaties, among them the NPT, the Biological and Chemical Weapons Conventions, and the Comprehensive Test Ban Treaty.

The US Constitution provides that the Senate give its "advice and consent" to ratification of a treaty. Whether Senate concurrence in termination of a treaty is constitutionally required remains a contested question. The Supreme Court declined to resolve the issue in a 1978 case brought by senators challenging President Carter’s termination of the US-Taiwan mutual defense treaty. But there are good reasons for believing that a Senate and congressional role is appropriate. Surely few would contend that a president could withdraw from major multilateral treaties like the UN Charter or the NPT without congressional support. And as Yale law professor Bruce Ackerman pointed out in a August 29 New York Times op-ed, a president cannot terminate a statute - like treaties, part of the supreme law of the land - absent congressional action, and there is historical precedent for joint congressional-presidential action to terminate treaties.

National unity in time of grief is a good thing. But national unity justifies neither folly nor lawlessness.

How to Defend the ABM Treaty

The United States is out of step with its allies on the ABM Treaty. All the visits of US officials around the world did not make even a dent in their continuing support for the treaty. How can we change the Bush administration’s approach here in the United States, and prevent implementation of Star Wars?

While Bush has proclaimed his intention to withdraw from the treaty, in my opinion he cannot do this on his own authority. If ratification of a treaty, according to the Constitution, must have the advice and consent of the Senate, then logically to withdraw from a treaty should also be only with the Senate’s advice and consent.

Several approaches could be taken. Congress could refuse to fund activities that would violate the treaty, a strategy now under consideration in the Senate. The Senate could also adopt a resolution recommending that Bush continue US adherence to the ABM Treaty. More effective would be a resolution stating that the Senate does not give its "advice and consent" to withdrawal from the treaty and that such concurrence is constitutionally required.

In my view, the latter resolution should be placed before the Senate at the earliest opportunity. I believe it would be passed or would at least produce a strong minority opinion against Bush’s opposition to the treaty and provide a rallying point for all opponents of Star Wars.

— Robert Boehm

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