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U.S.: Some In Congress Hoping To Keep ABM Treaty Alive

For three decades, the Anti-Ballistic-Missile Treaty, or ABM, kept Washington and Moscow from escalating a dangerous arms race. It also has kept the United States from fully pursuing a missile-defense system. U.S. President George W. Bush says the ABM is no longer necessary, and is withdrawing his country from the treaty, effective today. He also is ready to pursue a missile-defense system. For the most part, foreign opponents of his plans have been silenced, but Bush still faces resistance from members of the U.S. Congress.

Washington, 13 June 2002 (RFE/RL) -- The Anti-Ballistic-Missile Treaty, or ABM, which Washington and Moscow have observed for the past three decades, expires on Thursday, but not without at least a symbolic protest from some members of the U.S. Congress.

On 13 December, U.S. President George W. Bush formally announced his intention to withdraw from the treaty. Bush has repeatedly called the ABM an irrelevant relic of the Cold War because he says it wrongly presumes that the United States and Russia -- essentially the heir of the old Soviet Union -- are still enemies.

Bush says that "moving beyond" the ABM, as he puts it, reflects the new reality of the United States and Russia as friends. It also allows the Bush administration to pursue testing of a national missile-defense system, which the ABM had forbidden.

At first, a U.S. withdrawal from ABM, and a subsequent testing of a missile-defense system, were opposed by Russian President Vladimir Putin, the government of China, and even America's allies.

The primary complaint was that abandoning the treaty could reignite the arms race that characterized the Cold War. And foreign opponents of pursuing a missile-defense system have said it could do the same by prompting countries like Russia and China to improve their own offensive missile systems.

For the most part, these concerns have been allayed by the treaty that Bush and Putin signed in Moscow last month to reduce U.S. and Russian strategic warheads.

Bush also has contended that the missile-defense system he envisions would not be sophisticated enough to prevent an attack by Russia or China. Instead, he says, it would be deployed against threats from what he calls "rogue nations," such as Iraq or North Korea.

Now even Putin has dropped his objections to the U.S. missile-defense program, and now has promised Moscow's cooperation.

However, there are still domestic critics of abandoning the ABM Treaty and pursuing a missile-defense system. They say the treaty can still be an effective tool for peace. And they contend that the missile-defense system envisioned by Bush is prohibitively expensive -- so far, the program is expected to cost $64 billion -- and that there is no evidence that it will ever work.

Meanwhile, Bush is wasting no time taking advantage of the ABM's expiration. On 15 June, construction workers and officials of the U.S. Defense Department will attend a ceremony in the northwestern U.S. state of Alaska to begin work on a test site for the missile-defense system.

But the president's domestic critics have not given up and hope to keep the ABM from expiring. On 10 June, Senator Russell Feingold tried unsuccessfully to have the Senate consider a resolution requiring the president to get Senate approval for withdrawing from a treaty with a foreign government. Feingold is a member of the Democratic Party; Bush is a Republican.

And on 11 June, 31 members of the U.S. House of Representatives filed a lawsuit seeking to block Bush from withdrawing the United States from the treaty. The lawsuit says the president should be required to consult Congress formally before he takes such an action.

The plaintiffs -- 30 Democrats and one independent who normally votes with the Democrats -- say they have asked the court to expedite its ruling because of the impending expiration of the ABM Treaty. However, they say that they expect a ruling after Thursday's expiration would be retroactive.

Under the U.S. Constitution, all such treaties must be ratified by the Senate. But the Constitution does not say what a president must to do withdraw from a treaty.

In 1835, the House of Representatives voted against President Andrew Jackson's effort to withdraw from a treaty with France. Jackson accepted that vote, and the treaty remained in place.

In 1979, a senator sued to prevent President Jimmy Carter from ending the mutual defense treaty between the United States and Taiwan. After a complex legal fight, the treaty was abrogated.

But the U.S. Supreme Court has not ruled on the constitutionality of a president's withdrawing from a treaty without the consent of Congress.

Analysts say that because the constitution makes no explicit reference to ending treaties, a president must rely on the language of the treaties themselves in deciding how to withdraw from them. And the ABM Treaty includes clear language for terminating it: Either side may withdraw from the pact if it gives six months' notice.

Robert Levy, a constitutional scholar at the Cato Institute, an independent policy research center in Washington, told RFE/RL that the ABM's language gives the president the right to act unilaterally in withdrawing from the treaty. "There's nothing in the constitution that suggests that the president wouldn't have such authority. The treaty itself provided for six months' notification. So it's not a question of whether [Bush is] unilaterally abrogating an obligation of the United States. It's rather a question of whether he's exercising discretion that was contemplated in the treaty language itself," Levy said.

Bill Frenzel, a former member of Congress, agrees. Frenzel is now a specialist in government studies at the Brookings Institution, another Washington policy center. He said that because the constitution is silent on ending treaties, a president acts constitutionally when he adheres to the wording of a treaty.

One curious aspect of the case is why it was the House of Representatives that succeeded in stopping President Jackson from withdrawing from a treaty with France, and why it is now the House of Representatives that is challenging Bush on the ABM. After all, it is the Senate, not the U.S. House, that must ratify such treaties.

Frenzel said he believes that this is just a coincidence, and that it is incumbent on a member of either house of Congress to act when he believes the president is acting wrongly. "Clearly the Senate has the right under the constitution to ratify or not ratify treaties, but it is also clear that under the constitution every member of Congress, including those in the House [of Representatives], [has] an interest in how the government goes forward with its business. And so, when the House is interested, it tries to find ways to exhibit that interest," Frenzel said.

Both Levy and Frenzel said they do not expect the U.S. House members' lawsuit to succeed. In fact, Frenzel said he does not believe the plaintiffs themselves expect a judge to rule against ending the ABM treaty. He said he believes the action is merely meant to be a dramatic political statement against ending a treaty that has so far served the cause of world peace.