[Congressional Record (Bound Edition), Volume 148 (2002), Part 4]
[Senate]
[Pages 4536-4538]
[From the U.S. Government Publishing Office, www.gpo.gov]




                PRESIDENTIAL WITHDRAWAL FROM ABM TREATY

  Mr. KYL. Mr. President, Secretary Powell at this very moment in the 
Middle East is striving mightily to effect a cease fire and develop 
more support for our war on terror, especially to the extent we may 
have to take military action against the country of Iraq.
  It is in that context that I discuss today another way the 
administration has prepared to deal specifically with the threat from 
Iraq and other countries similarly situated in the Middle East.
  On December 13, following a period of high-level negotiations, 
President Bush notified Russia of his intent to withdraw the United 
States from the 1972 Anti-Ballistic Missile Treaty. Since then, I have 
addressed the Senate on the military justification for the President's 
decision and the question of how much a national ballistic missile 
defense system will cost. Today, I would like to discuss the 
President's constitutional authority to unilaterally exercise the right 
of withdrawal without the consent of the Senate or Congress as a whole.
  The President withdrew the United States from the treaty pursuant to 
Article XV, which allows either party to withdraw upon 6 months' notice 
if it determines that ``extraordinary events . . . have jeopardized its 
supreme interests.'' I believe his action is a proper exercise of the 
authority of the chief executive to terminate a formal treaty to which 
the Senate had given its consent pursuant to Article II, Section 2, of 
the Constitution.
  The question of Presidential authority is illustrated by the 
following assertion in a New York Times editorial by Bruce Ackerman, a 
professor of constitutional law at Yale:

       Presidents don't have the power to enter into treaties 
     unilaterally . . . and once a treaty enters into force, the 
     Constitution makes it part of the ``supreme law of the land'' 
     just like a statute. Presidents can't terminate statutes they 
     don't like. They must persuade both houses of Congress to 
     join in a repeal.

  While the Constitution is silent with respect to treaty withdrawal, 
the preponderance of writings and opinions on this subject strongly 
suggests that the Framers intended for the authority to be vested in 
the President. Article II, Section 1 of the Constitution declares that 
the ``executive power shall be vested in the President.'' And Article 
II, Section 2 makes clear that the President ``shall be Commander-in-
Chief,'' that he shall appoint, with the advice and consent of the 
Senate, and receive ambassadors, and that he ``shall have power, by and 
with the advice and consent of the Senate, to make treaties.''
  The Constitution approaches differently the duties of Congress, 
giving the legislative branch--in Article I's Vesting Clause--only the 
powers ``herein granted.'' The difference in language indicates that 
Congress' legislative powers are limited to the list enumerated in 
Article I, Section 8, while the President's powers include inherent 
executive authorities that are unenumerated in the Constitution. Thus, 
any ambiguities in the allocation of a power that is executive in 
nature--particularly in foreign affairs--should be resolved in favor of 
the executive branch. As James Madison once wrote in a letter to a 
friend, ``the Executive power being in general terms vested in the 
President, all power of an Executive nature not particularly taken away 
must belong to that department . . .''
  The treaty clause's location in Article II clearly implies that 
treaty power is an executive one. The Senate's role in making treaties 
is merely a check on the President's otherwise plenary power--hence the 
absence of any mention of treaty-making power in Article I, Section 8. 
Treaty withdrawal remains an unenumerated power--one that must 
logically fall within the President's general executive power.
  A careful reading of the writings of the Framers strongly also 
confirms that they viewed treaties differently than domestic law, and 
that, while they desired to put more authority over domestic affairs in 
the hands of the elected legislative representatives, they believed 
that the conduct of foreign affairs lay primarily with the President. 
As Secretary of State Thomas Jefferson observed during the first 
Washington Administration, ``The constitution has divided the powers of 
government into three branches [and] has declared that `the executive 
powers shall be vested in the president,' submitting only special 
articles of it to a negative by the Senate.'' Due to this structure, 
Jefferson continued, ``The transaction of business with foreign nations 
is executive altogether; it belongs, then, to the head of that 
department, except as to such portions of it as are specially submitted 
to the Senate. Exceptions are to be construed strictly.''
  In the same vein is the history of Supreme Court rulings on the 
subject of presidential powers. The Court has concluded that the 
President has the leading constitutional role in managing the nation's 
foreign relations. As one commentator, David Scheffer, noted in the 
Harvard International Law Journal, ``Constitutional history confirms 
time and again that in testing [the limits of presidential plenary 
powers], the courts have deferred to the President's foreign relations 
powers when the constitution fails to enumerate specific powers to 
Congress.''
  In Harlow v. Fitzgerald, the Supreme Court observed that 
responsibility for the conduct of foreign affairs and for protecting 
the national security are ```central' Presidential domains.'' 
Similarly, in the Department of Navy v. Egan, the Supreme Court 
```recognized the generally accepted view that foreign policy [is] the 
province and responsibility of the Executive.'''
  The case most frequently cited as confirming that the President is 
the supreme authority in the Nation's conduct of foreign affairs is the 
Supreme Court's 1936 decision in the United States v. Curtiss-Wright 
Corp. In that case, the Court reversed the decision of the district 
court, and affirmed the constitutionality of President Franklin 
Roosevelt's declaration of an arms embargo against both sides in the 
conflict between Peru and Bolivia over the Chaco region. As stated in 
the opinion issued by Justice Sutherland, the power to conduct foreign 
affairs is ``the very delicate, plenary and exclusive power of the 
President as the sole organ of the federal government in the field of 
international relations--a power which does not require for its 
exercise an act of Congress.''
  Treaties represent a central tool for the successful conduct of 
foreign policy. Such international agreements typically reflect the 
circumstances of particular security or economic conditions which may, 
of course, change over time. As such, in the course of protecting 
national security, recognizing foreign governments, or pursuing 
diplomatic objectives, a President may determine that it is necessary 
to terminate specific United States' treaty obligations.
  That is precisely the subject we are facing with respect to the 
President's withdrawal from the 1972 ABM treaty.
  As the D.C. Circuit stated in Goldwater v. Carter, ``The 
determination of the conduct of the United States in regard to treaties 
is an instance of what has broadly been called `the foreign affairs 
power' of the President. . . . That status is not confined to the 
service of the President as a channel of communication . . . but 
embraces an active policy determination as to the conduct

[[Page 4537]]

of the United States in regard to a treaty in response to numerous 
problems and circumstances as they arise.''
  For these reasons, other unenumerated treaty powers have been 
understood to rest within the plenary presidential authority. For 
example, the President alone decides whether to negotiate an 
international agreement, and also controls the subject, course, and 
scope of negotiations. Additionally, the President has the sole 
discretion whether to sign a treaty and whether to submit a treaty to 
the Senate for advice and consent. The President may even choose not to 
ratify a treaty after the Senate has approved it. Vesting the power to 
terminate a treaty in the President is consistent with the accepted 
view that other such unenumerated powers are the responsibility of the 
President.
  Furthermore, the executive branch has long maintained that it has the 
power to terminate treaties unilaterally. The Justice Department has 
argued that, ``Just as the Senate or Congress cannot bind the United 
States to a treaty without the President's active participation and 
approval, they cannot continue a treaty commitment that the President 
has determined is contrary to the security or diplomatic interests of 
the United States and is terminable under international law.'' The 
State Department, in a 1978 memorandum advising that the President had 
the authority under the Constitution to terminate the Mutual Defense 
Treaty without Congressional or Senate action, opined that, ``The 
President's constitutional power to give notice of termination provided 
for by the terms of a treaty derives from the President's authority and 
responsibility as chief executive to conduct the nation's foreign 
affairs and execute the laws.''
  One of the most well-known instances of treaty termination in recent 
history is former President Carter's decision to withdraw the United 
States from the Mutual Defense Treaty of 1954 between the U.S. and 
Taiwan in order to normalize relations with the People's Republic of 
China. That decision resulted in an extensive debate in the Senate and 
among scholars as to the President's constitutional authority to 
withdraw the United States from a treaty without the approval of the 
Senate or Congress. Several members of Congress, including former 
Arizona Senator Barry Goldwater, filed suit against President Carter, 
and the full Senate addressed treaty termination in a series of 
legislation that was debated by a number of my distinguished colleagues 
who remain in this body today.
  Senator Kennedy wrote a persuasive article for Policy Review in 1979 
strongly supporting the notion that treaty termination is an executive 
power not requiring legislative consent. In that article, he argued:

       Article 10 of the treaty in question [the Mutual Defense 
     Treaty] provided for its termination. In giving notice of an 
     intent to terminate the treaty pursuant to that provision, 
     the President was not violating the treaty but acting 
     according to its terms--terms that were approved by the 
     Senate when it consented to the treaty.
       As Charles C. Hyde, former Legal Advisor to the Department 
     of State, put it in his leading treatise: ``The President is 
     not believed . . . to lack authority to denounce, in 
     pursuance of its terms, a treaty to which the United States 
     is a party, without legislative approval. In taking such 
     action, he is merely exercising in behalf of the nation a 
     privilege already conferred upon it by the agreement'' . . .
       At the time that each treaty is made and submitted [for the 
     advice and consent of the Senate, Senators] should seek to 
     condition Senate approval upon acceptance of the Senate's 
     participation in its termination. The Senate might have done 
     so when it consented to the 1954 defense treaty with the 
     Republic of China, but it did not. Any attempt, at this 
     point, to invalidate the President's notice of intention to 
     terminate that treaty is not only unwise . . . but also 
     without legal foundation.

  As with the 1954 treaty, the ABM Treaty contains a withdrawal 
clause--article XV(2)--for extraordinary events. That clause states:

       Each party shall, in exercising its national sovereignty, 
     have the right to withdraw from this Treaty if it decides 
     that extraordinary events related to the subject matter of 
     this Treaty have jeopardized its supreme interests. It shall 
     give notice of its decision to the other Party six months 
     prior to withdrawal from the Treaty.

  That, of course, is precisely what President Bush did.
  The President was fully justified in using that withdrawal clause 
unilaterally. Just as the Senate did not condition its approval of the 
Mutual Defense Treaty with Taiwan upon its participation in termination 
of that treaty, the Senate also did not place such a condition upon its 
approval of the ABM Treaty.
  Senator Goldwater's suit over the President's termination of the 
Mutual Defense Treaty with Taiwan led to conflicting decisions by the 
trial and appellate courts and an eventual non-decision by the Supreme 
Court. The D.C. Circuit had reversed the trial court's decision, and 
upheld President Carter's authority to terminate the Mutual Defense 
Treaty, rejecting the arguments that (1) the advice and consent role of 
the Senate in making treaties implies a similar role in termination, 
and (2) that, because a treaty is part of the law of the land, a 
minimum of a statute is required to terminate it.
  The Circuit Court pointed out that the President is responsible for 
determining whether a treaty has been breached by another party, 
whether a treaty is no longer viable because of changed circumstances, 
and even whether to ratify a treaty after the Senate has given its 
advice and consent. The court said that, ``In contrast to the lawmaking 
power, the constitutional initiative in the treaty-making field is in 
the President, not Congress.'' Moreover, the court stated that, to 
require Senate or Congressional consent to terminate a treaty would 
lock the United States into ``all of its international obligations, 
even if the President and two-thirds of the Senate minus one firmly 
believed that the proper course for the United States was to terminate 
a treaty.'' It would, therefore, deny the President the authority and 
flexibility ``necessary to conduct our foreign policy in a rational and 
effective manner.''
  Finally, the court determined that ``of central significance'' was 
that the Mutual Defense Treaty--as my colleague Senator Kennedy had 
also pointed out in his article--contains a termination clause that 
``is without conditions,'' and spells out no role for either the Senate 
or Congress. As a consequence, the court concluded, the power to act 
under that clause ``devolves upon the President.'' The facts are the 
same with the 1972 ABM Treaty, and, therefore, the law must also be 
consistent.
  I should note that President Carter did not stand alone in exercising 
his power to unilaterally terminate a treaty. According to David Gray 
Adler's The Constitution and the Termination of Treaties, unilateral 
executive termination has been practiced since the Lincoln 
Administration, and seems to be the most commonly used method of 
terminating treaties. And as the D.C. Circuit stated in Goldwater v. 
Carter,

       It is not without significance that out of all of the 
     historical precedents brought to our attention, in no 
     situation has a treaty been continued over the opposition of 
     the President.

  It is interesting to me members of the Senate have also raised the 
issue of the President's authority to withdraw from a particular treaty 
without legislative consent in the context of debating the resolution 
of ratification of a treaty. During the Senate's consideration of the 
Comprehensive Test Ban Treaty, CTBT, proponents of the CTBT argued that 
Safeguard F of that treaty meant that the President alone could 
exercise the right of withdrawal from the treaty. Safeguard F states:

       If the President of the United States is informed by the 
     Secretary of Defense and the Secretary of Energy--advised by 
     the Nuclear Weapons Council, the Directors of DOE's nuclear 
     weapons laboratories and the Commander of the U.S. Strategic 
     Command-- that a high level of confidence in the safety or 
     reliability of a nuclear weapon type which the two 
     Secretaries consider to be critical to our nuclear deterrent 
     could no longer be certified, the President, in consultation 
     with Congress, would be prepared to withdraw from the CTBT 
     under the standard ``supreme national interests'' clause in 
     order to conduct whatever testing might be required.

  As Senator Biden stated on the Senate floor on October 12, 1999:

       They have to assume, then, that the President, knowing that 
     this stockpile is no

[[Page 4538]]

     longer reliable, would look at the U.S. Congress and say: I, 
     President whomever, next President, certify that we can rely 
     on our stockpile. They either have to assume that or they 
     have to assume their concern about our stockpile is not a 
     problem because the moment the President is told that, he has 
     to call us and tell us and withdraw from the treaty . . .

  Senator Boxer likewise argued that withdrawal from the treaty would 
be exclusively the responsibility of the President during her remarks 
on the Senate floor on October 13, 1999, stating,

       If our stockpile is not safe and reliable, the President 
     will withdraw from the treaty. There doesn't have to be a 
     Senate vote. It's not going to get bogged down in the rules 
     of the Senate. If there is a supreme national interest in 
     withdrawing from the treaty, we will withdraw.

  Indeed, even some Senators openly opposed to the President's decision 
to withdraw the United States from the ABM Treaty have recognized his 
constitutional authority to make the decision without the consent of 
the Senate or Congress. In December 2001, Inside Missile Defense quoted 
Senator Daschle on the subject:

       It's my understanding that the President has the unilateral 
     authority to make this decision. But we are researching just 
     what specific legal options the Congress has, and we'll have 
     to say more about that later . . . at this point, we're very 
     limited in what options we have legislatively.

  Similarly, according to a July 2001 article in the New York Times, 
Senator Levin stated,

       The president alone has the right to withdraw from a 
     treaty, but Congress has the heavy responsibility of 
     determining whether or not to appropriate the funds for 
     activities that conflict with a treaty.

  My own view is that while it would be anomalous for Congress to 
withhold funding for a national missile defense system, Senator Levin 
is correct on both counts: withdrawal is the President's decision and 
any funding for anything must be through Congressional appropriation.
  In conclusion, I believe history will judge President Bush's notice 
of withdrawal from the 1972 ABM Treaty as equal in importance to his 
historic decision to commit the United States to the war on terrorism. 
With the withdrawal decision, he has paved the way for the United 
States to work aggressively toward deployment of defenses to protect 
the American people against the growing threat of a ballistic missile 
attack.
  In announcing his intent to withdraw the United States from the 
treaty, President Bush acted in accordance with changed international 
circumstances and our national interests--reestablishing the important 
doctrine of ``peace through strength'' as the basis for U.S. security 
policy. And he acted within the authority granted by the Constitution 
to the Chief Executive.
  I commend the President for arriving at a very difficult decision. As 
we all know, the role of Congress has not ended with our withdrawal 
from the treaty--the annual budget process can be used to either 
undermine or support the President's decision, a matter I will address 
in a future presentation. But for now, an essential first step in 
moving forward to protect the United States against a serious threat 
has finally been taken, and the President should be commended for his 
action.

                          ____________________