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Court Hears Legal Challenge By US Lawmakers Fighting Withdrawal From Missile Treaty - 2002-10-31

A federal judge has heard opening arguments in a lawsuit filed by some members of Congress, challenging President Bush's withdrawal of the United States last year from the Anti-Ballistic Missile (ABM) Treaty. Lawyers for the plaintiffs in the case want the court to rule on the constitutionality of the decision to withdraw from the treaty, which formally expired last June.

The lawsuit by 32 members of the House of Representatives challenges the president's authority to withdraw from the ABM treaty without the consent of Congress.

In announcing the decision in December 2001, the president said the treaty hindered the ability of the United States to develop effective defenses against possible future missile attacks by rogue states or terrorists.

Some lawmakers, principally Democrats, criticized the decision at the time saying it could undermine arms control efforts with Russia. Mr. Bush said he had informed congressional leaders in advance.

After the treaty expired in June, a group of lawmakers filed suit, claiming only Congress can abrogate international treaties.

Arguing the plaintiff's case Thursday before Federal District Judge John Bates, was Peter Weiss, President of the Lawyers' Committee on Nuclear Policy.

"What the administration has done in this case is give new meaning to the doctrine of 'preemptiveness.' Not only do we now have preemption of international law norms, but we have an administration that preempts the function of Congress in a constitutional society," he said after the hearing.

Mr. Weiss told an openly skeptical Judge Bates that the court should rule the President was obligated to ask Congress for an up or down vote before he terminated the ABM treaty.

Attorneys representing the administration said the case has no merit, describing it as a "political issue" that should never have been brought before the court.

Congressman Dennis Kucinich, the lead plaintiff, says President Bush should have sought congressional approval before withdrawing from the ABM treaty, just as he eventually sought authorization for possible military action against Iraq.

"This is a matter that relates not only to the constitutional requirements that our founders set forth, but it also relates to a nuclear age where an entire range of treaties that call for the abolition of nuclear weapons are put at jeopardy," he said. "This case has relevance far beyond the issues that would appear before this court."

Attorneys representing Mr. Kucinich and the other lawmakers have asked for a "summary" decision by the judge, who will also decide whether to grant a motion by administration attorneys to dismiss the lawsuit.

The last time courts were asked to rule on the issue of presidential authority to terminate treaties was in 1978 when then President Jimmy Carter announced U.S. withdrawal from the Mutual Defense Treaty with Taiwan.

A group of mostly conservative Republican lawmakers, led by Senator Barry Goldwater, called that unconstitutional because it was done without approval of two-thirds of the Senate.

A federal district court found for Mr. Goldwater, but the decision was reversed by a court of appeals. The case went to the Supreme Court which upheld the dismissal. However, in their opinions, several Supreme Court justices disagreed on reasoning.

Legal scholars have since debated whether the Supreme Court decision in the case barred new legal challenges to treaty termination by presidents.