ABM Lawsuit Dismissed

A federal judge dismissed a lawsuit December 30 by 32 members of the House of Representatives charging that President George W. Bush could not unilaterally withdraw the United States from the 1972 Anti-Ballistic Missile (ABM) Treaty. It is unclear if the representatives, led by Dennis Kucinich (D-OH), will appeal the decision. (See ACT, July/August 2002.)

Judge John D. Bates, citing two points, rejected hearing the representatives’ claim that Congress needs to give its assent for the United States to withdraw from a treaty. Bates ruled that the representatives did not have the proper standing to bring the case because they were not personally injured by the president’s act and because the issue of treaty termination is a “nonjusticiable ‘political question’ that cannot be resolved by the courts.”

On the first point, Bates asserted that, since the representatives were claiming that they suffered “a grievous institutional injury by being deprived of their constitutional right and duty to participate in treaty termination,” they could not claim personal injury, a prerequisite for bringing a lawsuit. Bates also denied that the representatives could even claim an “institutional” injury, declaring that they “have not been authorized, implicitly or explicitly, to bring this lawsuit on behalf of the House, a committee of the House, or Congress as a whole.” He further observed that, in the time after the United States withdrew from the ABM Treaty in June 2002, neither the House nor the Senate has objected as an institution to the president’s action.

Explaining his second reason for dismissing the case, Bates noted that no branch of government is assigned the authority to terminate a treaty but that the Constitution “clearly relegates authority over foreign affairs to the Executive and Legislative Branches, with no role for the Judicial Branch to second-guess or reconsider foreign policy decisions.” He added that, since Congress had not asserted itself on the issue, neither should the court. Doing so “would preempt what is clearly the prerogative of Congress,” Bates concluded.

John Burroughs, a lawyer for the representatives, took heart from one aspect of the judgment, noting in a January 1 statement that Bates’ decision “does not foreclose Congress from asserting its constitutional role in the treaty termination process.”