SAN FRANCISCO (May 22, 2019) — Congress and the White House need to hear from the people on these two crises:  (1) The threat of a U.S. attack on Iran. (2) Trump’s impending exit from the INF missile treaty and other pacts. 

First, Iran: You can tell President Trump you want no war on Iran — by phone at 202-456-1111 or by an online e-mail form at www.whitehouse.gov/contact/.

You can call your representative and two senators through the Capitol switchboard at 202-224-3121 or e-mail them through their web sites. For help in identifying or locating them, see Congress.gov or e-mail warandlaw@yahoo.com.

Launching an attack without Congress’s authorization is a violation of the Constitution and warrants impeachment. Besides, committing or threatening aggression is a war crime.

John Bolton, national security adviser, has had air and naval forces sent to the Persian Gulf. He threatens war if Iran assaults forces or interests of the U.S. “or our allies.” 

In George W. Bush’s administration, Bolton urged war on Iraq over imaginary “weapons of mass destruction.”

Bolton has long desired to bomb Iranians. In a 2009 Chicago speech, he said Israel should attack Iran with nuclear weapons. Will a U.S. war be nuclear? Will it become a world war, as Russia intervenes?

Trump says he wants peace but lets Bolton provoke war. Is the 2020 election a factor? In 2011 he tweeted: “In order to get elected, Barack Obama will start a war with Iran.”

Besides the danger of war on Iran, looms the doom of the INF Treaty with Russia. For details of the latter, see below. 

Save the INF Treaty before August Deadline

 WALL

Don’t let the president dictate the doom of treaties — like the INF, which has eliminated thousands of nuclear missiles since 1988.

See the proposed resolution at www.warandlaw.org and ask your representative (and/or senators*) to get it introduced and passed.

This is its essence: (1)A president alone cannot repeal a treaty, or any other law. (2) INF remains in effect, until a majority of Congress (or 2/3 of the Senate) votes otherwise.

Trump’s threat to quit INF (the Intermediate-range Nuclear Forces Treaty with Russia) on August 2, without congressional approval,is lawless and perilous.

The trouble with his assault on INF — and other treaties — is explained at www.warandlaw.org in a pair of articles:

•  President’s right to exit arms treaty disputed;

• Action in Congress could head off atomic war.

•  Executive Assault on Treaties Perils Peace and Constitution

ALERT!  Save the INF Treaty before the August deadline.
See the resolution below, right (House and Senate versions). Ask your
representative (and/or senators) to get it introduced and passed.

Click either HR or S to see the desired document (in PDF format). Print it if you wish.
You might ask your representative to introduce the measure. Send the document to him or her, or else let the member of Congress know it’s on http://www.warandlaw.org. The same for either or both of your senators.

WALL has just reissued its paper “Termination of Treaties”  from 2002. With a new foreword, it shows why the president’s action is autocratic and unconstitutional — let alone perilous for the world.

President’s Right to Exit Arms Treaty Disputed; Action in Congress Could Head Off Atomic War

Paul W. Lovinger / WALL news & commentary

(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 U.S. would do in the meantime.

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.

The War and Law League’s Legislative Committee drew up the proposed resolution (see right sidebar) 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 U.S.

Both sides have alleged treaty breaches. The Trump administration considers a certain Russian missile in violation. Putin’s government sees a violation in U.S. 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 U.S. 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 U.S. 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 U.S. 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.

House Resolution

Declaring That a President Alone Cannot Repeal a Treaty Or Other Law and Affirming the Validity of the INF Treaty

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 Trump intends to quit INF come August unless Russia “complies.” INF allows either “Party” to withdraw on six months’ notice if it decides “extraordinary events … have jeopardized its supreme interests.” It is disputable that Trump alone is a “Party.”

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 Woodruff, Ray, and Cardozo, 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