No Appeal in ABM Treaty Case

Representative Dennis Kucinich (D-OH) and 31 other members of the House of Representatives decided in mid-January not to appeal a federal judge’s dismissal of their lawsuit charging that President George W. Bush could not unilaterally withdraw the United States from the Anti-Ballistic Missile (ABM) Treaty. The U.S. withdrawal from the treaty took effect last year on June 13.

Judge John D. Bates dismissed the lawsuit December 30, 2002. Bates contended that the 32 members could not claim to have suffered personal injuries by the president’s action; therefore they did not have the proper standing to bring a case before the court. He also argued that the issue of treaty withdrawal was a political question and not one for the courts to decide, as long as Congress had not asserted itself on the issue. Bates stated that the 32 representatives could not claim to represent the entire Congress. (See ACT, January/February 2003.)

The representatives decided against appealing the case largely because of what they believed were some positive aspects of the ruling, according to one of their lawyers. In his decision, Bates left open the question of whether congressional approval is needed for the United States to withdraw from a treaty and did not rule out the possibility that a court might need to make a judgment on such a question if the executive and legislative branches ever reached an impasse on it.

John Burroughs, an attorney for the representatives, noted in a February 19 interview that the decision sends a signal to Congress that “the space is there” for it to assert its role in the treaty withdrawal process.

Other considerations influencing the decision not to appeal included the possibility that a higher court might render a more unfavorable decision and a belief that a court would be less likely to challenge the president’s move as more time passes from when the withdrawal took effect.