Roots Action & Paul W. Lovinger / The War and Law League – 2019-02-05 00:49:04
ACTION ALERT: Trump Can’t Tear Up
Treaties If Congress and the Public Say “No”
(February 3, 2019) — President Trump has declared his intention to withdraw the United States from the Intermediate-Range Nuclear Forces Treaty (INF), a key nuclear disarmament pact with Russia signed by President Ronald Reagan in 1987 and approved by the US Senate.
Now is the time for Congress to take action to keep the United States in the treaty. And either house of Congress alone has the power to refuse to fund any weapons prohibited by the treaty.
Nine Senators have just introduced the Prevention of Arms Race Act of 2019 to block any funding for weapons that violate the INF Treaty. Now members of Congress need to hear from us again and again until this bill is made law.
Make no mistake, there are those who see more nuclear weapons in the world as wonderful news. Militarists are already talking up the supposed need for more weapons aimed at China as well as Russia.
Congressman Ro Khanna has tweeted: “I am alarmed that President Trump is withdrawing from the INF treaty with Russia. This action plunges us back into a nuclear arms race and endangers our troops, allies, & the world, while wasting taxpayer dollars to prepare for a nuclear war that must never be fought.”
The INF prohibits the United States and Russia from deploying both nuclear and conventional missiles with ranges between 310 and 3,420 miles. These are among the weapons most likely to lead to miscalculation or misadventure in a crisis.
Following ratification of the INF, the United States destroyed almost 1,000 missiles, and the Soviet Union almost 2,000. “But,” writes Jon Schwarz at The Intercept, “arms control treaties are never about weapons and numbers alone. They can help enemy nations create virtuous circles, both between them and within themselves.
Verification requires constant communication and the establishment of trust; it creates constituencies for peace inside governments and in the general public; this reduces on both sides the power of the paranoid, reactionary wing that exists in every country; this creates space for further progress; and so on.”
Conversely, withdrawal from arms control treaties can feed vicious cycles of distrust, animosity, and militarization.
The Bulletin of the Atomic Scientists, which now shows the Doomsday Clock at two minutes to midnight, points out:
“The INF withdrawal is part of a pattern. It is not the first nuclear treaty the US has terminated; at the end of 2001 the United States walked out of the Anti-Ballistic Missile (ABM) Treaty it had signed with the Soviet Union in 1972.”
Both the United States and Russia currently accuse each other of violating the INF Treaty. Wherever the truth lies, the solution is not to pull out of the treaty, but to redouble diplomatic efforts to resolve the allegations.
The United States and Russia control more than 90 percent of the world’s nearly 15,000 nuclear weapons. It is unlikely that any of the other nuclear-armed powers will be willing to engage in negotiations to control or eliminate these extraordinarily dangerous armaments if the United States abandons arms control.
A ratified treaty is a part of the “supreme law of the land,” former Senator Russell Feingold has noted — “which should logically mean that it could only be undone by Congress and the President, or at least by a vote of the Senate.”
Email your Representative and Senators. Tell the first branch of government in the US Constitution to step up and do its job. After signing the petition, please use the tools on the next webpage to share it with your friends.
RootsAction is an independent online force endorsed by Jim Hightower, Barbara Ehrenreich, Cornel West, Daniel Ellsberg, Glenn Greenwald, Naomi Klein, Bill Fletcher Jr., Laura Flanders, former US Senator James Abourezk, Frances Fox Piven, Lila Garrett, Phil Donahue, Sonali Kolhatkar, and many others.
* Statement from the President Regarding the Intermediate-Range Nuclear Forces (INF) Treaty
* Prevention of Arms Race Act of 2019
* David Cortright, The Nation: “The Peace Movement Won the INF Treaty. We Must Fight to Preserve It.”
* Russell Feingold, NBCnews.com: “Donald Trump can unilaterally withdraw from treaties because Congress abdicated responsibility”
* Zia Mian, Bulletin of the Atomic Scientists: “The INF Treaty and the crises of arms control”
* Jon Schwarz, The Intercept: “What Trump and John Bolton Don’t Understand About Nuclear War”
* Ira Helfand, CNN.com: “Sheer Luck Has Helped Us Avoid Nuclear War So Far — Now We Need to Take Action”
The President’s Right to Exit Arms Treaty Is Disputed;
Action in Congress Could Head Off Atomic War
Paul W. Lovinger / WALL News
(February 1, 2019) — Viewing President Donald Trump’s action to quit a major weapons treaty with Russia as lawless and perilous, activists have been seeking congressional action to preserve the treaty.
On grounds of Russian violations, Trump decided to withdraw the nation from the Intermediate-range Nuclear Forces Treaty (INF). It permits a “party” to withdraw six months after giving notice.
In 1987, 93 members of the Senate approved the treaty, submitted by President Ronald Reagan. (Only five senators opposed it.) Trump presumes that he alone can terminate it.
On February 1, Secretary of State Mike Pompeo announced that the United States was “suspending” the treaty, effective the following day. He gave Russia six months to return to compliance. He did not make it clear what the US would do in the meantime.
If that was the official notice, and if one accepts the concept of Trump alone being a “party” to the treaty, it would apparently permit the withdrawal on August 1. The treaty says nothing about a party “suspending” it.
A resolution proposed for Congress would declare that:
(1) A president alone cannot lawfully repeal a treaty — or any other law.
(2) Unless a majority of each house of Congress or two-thirds of the Senate votes to undo it, the INF Treaty remains in effect.
ACTION: Click either House Resolution or Senate Resolution to see the desired document (in PDF format). Send the document to your elected representative and both of your senators and ask them to introduce and/or cosponsor the resolution.
The War and Law League’s Legislative Committee drew up the proposed resolution in two similar versions: one for the House of Representatives and one for the Senate. The measure would not be subject to presidential veto.
A new nuclear arms race — risking a war with Russia that destroys mankind — will probably be the outcome of Donald Trump’s exit from INF.
Two credible sources for that statement, published in the Washington Post last December, are Mikhail Gorbachev, Russian ex-president, and George P. Shultz, secretary of state under President Reagan. They participated in negotiations for INF, which Gorbachev and Reagan signed in December 1987.
Warning of those dire consequences, they urged continuing the pact, confident that differences could be ironed out through diplomatic and military meetings between Russia and the US.
Both sides have alleged treaty breaches. The Trump administration considers a certain Russian missile in violation. Putin’s government sees a violation in US deployment of certain systems in Europe.
Yet INF has been successful. It prohibited both nuclear and conventional missiles (plus their launchers, devices to initially guide them) with ranges between about 300 and 3,400 miles. Russia and the USA conducted mutual inspections and scrapped nearly 2,700 missiles, which could have sent some 4,000 nuclear warheads to kill millions of people.
Presidents Can’t Repeal Laws
A treaty must get the consent of at least two-thirds of the Senate to go into effect. Many authorities have pointed out that a treaty is a law. A president cannot repeal a statute on his own (an argument goes); so how could he presume to repeal a treaty on his own? The Constitution mentions neither type of repeal, but it’s unlikely that a president could get away with the former.
When Thomas Jefferson served as vice-president, he wrote a Manual of Senate Procedure, which said:
Treaties are legislative acts . . . . Treaties being declared equally with the laws of the United States to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process in the case of France in 1798. [Congress passed, and President John Adams signed, a bill to abrogate treaties with France.]
James Madison, the fourth US president, sometimes called “Father of the Constitution,” saw the need for “the same authority precisely being exercised in annulling as in making a treaty.” Presidents Grant, Hayes, and Taft (later as chief justice) recognized the need for some type of congressional action to undo a treaty. Seven federal judges took that view, though not decisively.
In Goldwater v. Carter, the senator challenged President Carter’s notification of termination of a treaty with Taiwan. DC District Judge Oliver Gasch ruled in 1979 that prior congressional action was required, either (1) a majority of both houses or (2) two-thirds of the Senate. He wrote that the repeal of a treaty — a law of the land — by the executive alone raised the same fears of unchecked power that prompted the Founding Fathers to require Senate participation to enact a treaty.
The Court of Appeals in DC reversed that ruling. The Supreme Court vacated both courts’ rulings and dismissed the case, in a 6-3 non-decision (1979). Justice Rehnquist saw a “non-justiciable political dispute that should be left for resolution by the Executive and Legislative branches . . . .”
In related Senate hearings that year, five law professors regarded presidential termination of treaties as unconstitutional. Prof. Charles E. Rice of Notre Dame University even suggested that “a presidential attempt to terminate a treaty without congressional approval would be an impeachable offense.”
At the hearings, Senator Goldwater submitted a table of 52 treaties terminated with congressional action. He cited major nuclear and defense treaties that allowed a “party” to withdraw after notice and commented that if “party” means “president,” any president could decide by himself that the US was withdrawing from a major defense or nuclear treaty and Congress could not stop him. “This would be giving the president virtually a dictator’s powers.”
In 2002 when George W. Bush knifed the ABM Limitation treaty of 1972 and 33 representatives challenged him in Kucinich v. Bush, DC District Judge John Bates ducked the issue in 2002, just as the Supreme Court had done 23 years before. He called it a “political question” and found that anyway the members of Congress lacked standing to sue. No one appealed.
Recent Actions on Nuclear Arms
Three measures related to nuclear weapons have been introduced in Congress lately. Securing the Republican support needed to get any of them through the Senate would be a formidable task.
On November 28, Senator Jeff Merkley (D-OR), with five cosponsors, introduced S. 3667, the “Prevention of Arms Race Act of 2018.” It would prohibit procurement or deployment of missiles covered under INF until the secretary of defense reported that certain conditions were met. It objects to Trump’s quitting of INF without “consultation” with Congress.
In January, Rep. Ted Lieu (D-CA) and Senator Ed Markey (D-MA) renewed legislation that they had introduced two years earlier, to prohibit a president from launching a nuclear first strike without a congressional declaration of war that expressly authorized such a strike. They call it the “Restricting First Use of Nuclear Weapons Act of 2019.” The House version drew 81 cosponsors the first time.
Also in January, Senator Elizabeth Warren (D-MA) and Rep. Adam Smith (D-WA) introduced the “No First Use Act.” The bill states, “It is the policy of the United States to not use nuclear weapons first.” (Of course, the US under President Harry Truman, did use them first, on people of Japan in 1945.)
The Defense Appropriations Act for fiscal 2019, signed into law September 28, contains a nonbinding provision to encourage (but not require) the administration to “suspend” INF and work on new weapons. It compares to a provision in the fiscal 2016 act, encouraging the Pentagon to study “counterforce capabilities” of intermediate missiles, whether they conformed to INF or not.
In late November, Roots Action (a liberal activist outfit of Sacramento, Calif.) tried to get Congress to preserve INF and refuse to fund weapons prohibited by the treaty. People sent over 30,00 e-mails to their members of Congress through the group’s system. The Republican Congress did not budge. In January, Democrats took over the House of Representatives, affording measures that oppose the Republican president’s policies a better chance.
Whereas the Intermediate-range Nuclear Forces Treaty (INF) between the USA and the USSR — succeeded by the Russian Federation — was signed by Presidents Ronald Reagan and Mikhail Gorbachev on Dec. 8, 1987, and approved by the Senate 93 to 5 on May 27, 1988.
Whereas INF banned nuclear and conventional missiles, plus their launchers, with ranges between about 300 and 3,400 miles; provided mutual inspections; and eliminated nearly 2,700 missiles that could send 4,000 nuclear warheads to kill millions of people.
Whereas President Donald Trump seeks to withdraw from INF. It requires a party to give six-months’ notice to withdraw. That Trump alone is a “party” is disputable. Even if he were and gave formal notice in February, he could not lawfully withdraw until August 2019.
Whereas Gorbachev and George Shultz, Reagan’s secretary of state, both INF negotiators, wrote jointly in December that abandonment would lead to a new arms race, risking a war threatening human existence. They said military and diplomatic meetings could fix issues.
Whereas Thomas Jefferson, when vice-president, wrote in Manual of Senate Procedure: “Treaties are legislative acts . . . An act of the legislature alone can declare them infringed and rescinded.” James Madison saw “the same authority … in annulling as in making a treaty.”
Whereas Justice Iredell, writing for the Supreme Court, 1796, found the power to end a treaty “grounded in the solemn declaration of Congress alone . . . ” Justice Story, for the court in 1821, held a like view. So did Chief Justice (ex-President) Taft, Yale Law Journal, 1916. Likewise, Judges Story, Woodruff, Ray, and Cardozo, 1821, 1871, 1914, 1920, respectively.
Whereas at 1979 Senate hearings on treaty termination, five law professors said a president could not end a treaty without congressional OK. One called it an impeachable offense to try to do so. Listing 52 treaties ended with legislative action, Senator Goldwater said letting the president alone decide to exit an important treaty gave him “virtually a dictator’s power.”
Whereas in Goldwater v. Carter, 1979, Judge Oliver Gasch of DC District Court found it “incompatible with our system of checks and balances” for presidents to end treaties. The Supreme Court dismissed the case as “political” but left the door open for Congress to assert authority in treaty termination. DC District Court ruled similarly in Kucinich v. Bush, 2002.
Now, therefore, be it Resolved by the House of Representatives that
It is the sense of the House of Representatives that a president alone cannot repeal a treaty, or any other law, and until a majority of each house of Congress or two-thirds of the Senate votes to undo it, the INF Treaty remains in effect.
Related: Senate Resolution
Affirming the Validity of the Intermediate-range Nuclear Forces Treaty (INF Treaty)
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