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The 1972 Anti-Ballistic Missile (ABM) Treaty between the United States and the Soviet Union has twice provoked serious constitutional crises between the Executive and the Senate. Today it remains at the core of what could become the most serious foreign policy struggle between the political branches of government since Vietnam.

In essence, the 1972 Treaty was designed to prohibit either the United States or the Soviet Union from developing a national ballistic missile defense system. It was premised upon the idea that the two leading superpowers would voluntarily hold each other’s citizens as nuclear hostages to guarantee that neither side would ever launch a nuclear attack against the other.

The past decade has witnessed remarkable changes in the circumstances which made the ABM Treaty seem so wise in 1972. The Soviet Union is dead. Russia and the other former Soviet republics are seeking to transition to democracy. Advances in ABM technology lead many experts to conclude that America can be defended against ballistic-missile attack without having to explode nuclear devices in its own atmosphere-overcoming a rather substantial drawback to the technology of earlier decades-and tests within recent months have demonstrated that it is indeed possible, to use the words of some early skeptics, to “hit a bullet with a bullet.”

Alarming new ballistic-missile threats have arisen from radical regimes in North Korea, Iran, Iraq, and Libya-each of which is reportedly engaged in efforts to acquire Weapons of Mass Destruction and ballistic missile delivery systems-as well as from the remaining Communist giant, the People’s Republic of China. The bipartisan Rumsfeld Commission to Assess the Ballistic Missile Threat to the United States concluded in 1998 that the Intelligence Community had underestimated the emerging ballistic missile threat, and that some of these radical States could be capable of inflicting “major destruction” on the United States with biological or nuclear weapons within a few short years. And finally, the unanimous, bipartisan Report of the House Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China (the Cox Report) suggested that China’s ability to threaten the United States with advanced nuclear ballistic missiles in the foreseeable future has been furthered by an energetic espionage campaign and lax security at U.S. nuclear weapons laboratories.

Advocates of an effective ballistic-missile defense system for the United States have raised a series of legal arguments, contending, inter alia, that the ABM Treaty expired with the demise of the Soviet Union. In contrast, the Clinton administration adopted the view that the Treaty remains in force, despite acknowledging that “neither a simple recognition of Russia as the sole ABM successor . . . nor a simple recognition of all NIS [Newly Independent States] as full ABM successors would have preserved fully the original purpose and substance of the Treaty, as approved by the Senate in 1972.” Therefore, on September 26, 1997, the United States, Belarus, Kazakhstan, the Russian Federation, and Ukraine signed a Memorandum of Understanding (MOU)-intended to have the legal effect of a treaty under international law-for the purpose of making all five countries Parties to the 1972 ABM Treaty.

The MOU provides that it is to enter into force upon its ratification “in accordance with the constitutional processes” of each State. Congress and the Senate have repeatedly gone on record to assert that the ABM Treaty can not continue in force without the formal consent of the Senate. President Clinton has agreed to submit the MOU to the Senate, and has stated that the MOU will determine the future status of the ABM Treaty. However, the President has also stated that, even if the Senate denies its consent to the ratification of the MOU, the ABM Treaty will remain in force with Russia and perhaps other States as well.

Issues of International Law

Much of the debate thus far has concerned questions of international law. Some Treaty critics have observed that the Soviet Union materially breached the ABM Treaty, and have thus declared that it is void. The evidence suggests that the critics are correct in their conclusion that material breach did occur-a charge admitted by former Soviet Foreign Minister Eduard Shevardnadze-but they are mistaken in their assumption that these violations terminated U.S. obligations under the Treaty. Under international law, material breach makes a treaty voidable, not void; and, by failing to act in a timely manner to declare the Treaty void, the United States effectively exercised its sovereign prerogative to condone the breach and to maintain the Treaty in force.

A more difficult issue pertains to the law of State succession. This is a complex and unsettled area governed largely by international custom. The better view is probably that a bilateral international agreement like the 1972 ABM Treaty ceases to exist with the demise of one of the Parties, unless the surviving treaty partner (the United States) and one or more States that emerge from the defunct State’s territory (i.e., Russia and/or other former Soviet republics) agree to keep it in force. Competent government voices for the United States and several of the former Soviet republics clearly did express an intention to keep the Treaty in force. As a matter of international law, that is generally sufficient. But it leaves unanswered an important issue of U.S. constitutional law: May the President agree to keep the terms of the ABM Treaty in force with Russia and/or other former Soviet republics without the consent of-and even against the clearly expressed will of-the U.S. Senate? If the answer to this question is “no,” and if the constitutional violation is manifest, then any agreement entered into by the President to continue the ABM Treaty in force with new partners is probably not legally binding on the United States as a matter of international law. And by the doctrine of reciprocity, if the agreement is not binding on one side it is not binding on the other.

There are other issues of international law, as well, such as the doctrines of rebus sic stantibus (fundamental change of circumstances) and impossibility of performance, which probably give the United States the legal right to declare the ABM Treaty void if additional authority is necessary; but, again, these options are normally exercised by the President as the nation’s organ of intercourse with the external world. Finally, by its own terms the Treaty permits either Party to withdraw upon six-months notice if it concludes that “extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests”-a standard that would seem easily satisfied by the growing Chinese and rogue State nuclear threats to U.S. national security. Thus, irrespective of the other issues of international law, it is clear that the United States has the legal right to terminate the Treaty upon six-months notice at any time.

So where does all of this leave us? Is the 1972 ABM Treaty in force today, and if so, with whom? More than one reasonable conclusion can be argued from the facts, but the present author would analyze the issues this way:

• The United States had a clear right to terminate the Treaty on a variety of grounds during the 1980s and early 1990s, but did not do so;
• The Treaty was of a character that would not automatically continue in force upon the demise of one of the two Parties, but which could be continued in effect by mutual consent between the United States and one or more of the former Soviet republics;
• Since none of the former Soviet republics possessed the sovereign authority to control all of the territory constrained by the 1972 Treaty, and expanding the number of Parties to the agreement necessitated transforming the bilateral U.S.-Soviet agreement into a new multilateral treaty, the provisions of the 1972 Treaty could not simply be continued by either an informal understanding or a “presidential agreement” between the United States and one or more successor States to the Soviet Union;
• The decision reflected in the 1997 MOU to transform the 1972 bilateral Treaty into a new multilateral agreement demonstrates that the signatory States recognized that such a commitment ought properly be made by a new treaty, which by its own terms clearly has not entered into force;
• Until the MOU enters into force, it would be extremely difficult for the United State to establish that the other MOU signatories are already Party to the 1972 Treaty; and-again, by the doctrine of reciprocity-the United States can be held to no greater obligation than its treaty partners;
• While the American President has repeatedly asserted that the 1972 Treaty remains in effect, he lacks the constitutional authority to conclude a new treaty without first obtaining the advice and consent of two-thirds of the U.S. Senate, and any effort to do so would be a manifest violation of a rule of U.S. internal law of fundamental importance-which, pursuant to Article 46 of the Vienna Convention on the Law of Treaties, would prevent any such agreement from being binding on the United States;
• Thus, despite many statements by the President and his key advisers to the contrary, the United States is probably not legally bound by the 1972 ABM Treaty, as such, at this time;
• However, the United States does clearly have obligations deriving from the 1972 Treaty: It has a duty to act in good faith in all of its international relations, and President Clinton’s statements create at least a moral obligation to respect the general terms of the ABM Treaty until reasonable notice is given to the States who may reasonably have relied to their detriment upon the President’s assurances; and
• Article 18 of the Vienna Convention recognizes a legal obligation not to defeat the object and purpose of a signed treaty (i.e., the MOU) until a State has made its intention clear not to become a Party to the treaty.

To be sure, one might argue that the widely publicized enactment of a federal law (the National Ballistic Missile Defense Act of 1999) proclaiming a policy decision to build a national ballistic missile defense system-a policy that is clearly contrary to the object and purpose of the ABM Treaty-constitutes such notice, but such a contention is largely undermined by reported executive branch assurances to Russia, and perhaps other MOU signatories, that any “change” in the Treaty would have to be agreed to by the Parties. While foreign countries that engage in diplomacy with the United States are expected to know the basic constitutional procedures by which the United States Government has been empowered by its people to make treaties, they are not required to follow the routine proceedings of the American Congress and they are entitled to rely in good faith upon the representations of the President and his diplomatic representatives.

Thus, while the better view is probably that the 1972 ABM Treaty is not now in force, international law does impose upon the United States an obligation not to take irreversible steps contrary to the terms of that Treaty until it has given reasonable notice to the other MOU signatory States. This duty at least arguably stems from the assurances given by the executive branch that the 1972 Treaty remains in force, but more clearly it arises from the fact that the 1997 MOU has been signed by the United States pursuant to its constitutional processes.

It is therefore suggested that the United States ought not act contrary to the terms of the 1972 Treaty prior to either concluding a new agreement permitting the conduct in question or giving formal six-month notice to the MOU signatory States that “extraordinary events” (i.e., the growth of new ballistic-missile threats to the United States) have jeopardized America’s “supreme interest.” Such notice would fully satisfy the requirements of Article XV of the 1972 Treaty, and would thus make it unnecessary to resolve the admittedly difficult issue of the current status of the ABM Treaty.

Issues of Constitutional Law

It is the conclusion of this study that the controlling legal issues in the current ABM Treaty debate are questions of U.S. constitutional law rather than of the law of nations. Sadly, in the debate thus far these issues have been largely ignored.

By way of background, it should be understood that the Constitution gives the President a great deal of independent discretion to manage the nation’s business with the external world. When the Founding Fathers gave the President the “executive Power” of the new Government in Article II, Section 1, of the Constitution, they assigned responsibility for the day-to-day control of U.S. foreign relations to that office. In the First Session of the First Congress, James Madison argued that this clause gave the President “all power of an executive nature, not particularly taken away” and vested elsewhere by the Constitution. In April of 1790, Thomas Jefferson added: “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.” This view was endorsed at the time by Washington, Madison, and Supreme Court Chief Justice John Jay as well.

Alexander Hamilton, who had played a critical role in drafting the “executive Power” Clause at the Constitutional Convention in Philadelphia, argued in 1793 that, “as the participation of the senate in the making of Treaties and the power of the Legislature to declare war are exceptions out of the general ‘Executive Power’ vested in the President, they are to be construed strictly- and ought to be extended no further than is essential to their execution.”

It follows from this history that the Senate’s role in treaties ought to be viewed essentially as a “negative” or “veto”-a power (vested in one-third plus one of the Senate) to block the making of treaty commitments by the President. The President decides when to negotiate what and with whom, but without the consent of two-thirds of the Senate a treaty negotiated by the President or his diplomatic agent may not be ratified. Once it has been approved by the Senate, the President is free to ratify it, tear it up, or place it in a drawer to possibly ratify at a later date. The President is also charged by the Constitution with the execution and interpretation of treaties, except where the rights of individuals are concerned, which for purposes of domestic U.S. law are ultimately interpreted by the Judiciary.

As the official voice for the United States in international affairs, the President is also entrusted with the power to declare the termination of a treaty-e.g., when materially breached by the other Party or when, in the President’s judgment, it has expired pursuant to its own terms or by action of international law. Thus, President Clinton clearly had a variety of justifications for declaring the ABM Treaty null and void during the past seven years, as did President Bush before him. However, as a matter of U.S. constitutional law, Congress also has the power to enact legislation inconsistent with treaty commitments (i.e., in most circumstances to violate the nation’s treaty commitments), and in practice both Congress and the Senate have historically passed resolutions calling for the termination of treaties by the President, and these actions have been carried out by the President. Inconsistent domestic legislation would often place the United States in violation of its treaty obligations; however, were the President-in response to a resolution passed by Congress or the Senate-to give the six-months notice provided in Article XV of the ABM Treaty, the subsequent termination of the Treaty would not violate international law.

Sadly, particularly in the post-Vietnam era, both the Senate and the Congress have with some frequency usurped constitutional powers of the President in the realm of foreign affairs. To his credit, President Clinton has often vetoed such legislation or issued signing statements expressing his conviction that certain provisions are unconstitutional and will not be considered as binding law. One can share the President’s frustration over legislative encroachment of his constitutional powers without concluding that such behavior justifies a retaliatory usurpation of treaty powers clearly vested in the Senate.

The President’s authority vis-a-vis a ratified treaty is intentionally broad. But it is well established that the President may not change the terms of a treaty without first submitting the modified agreement to the Senate and obtaining formal advice and consent from two thirds of those Senators present. Historically, the State Department has taken the view that even very minor changes in treaty terms require resubmission. For example, the 1814 Treaty of Ghent called for the appointment of commissioners who were empowered to determine the boundary between the United States and Canada in accordance with the “true intent” of the 1783 Treaty of Peace between the United States and Great Britain. This function would normally fall within the President’s clear constitutional power to “interpret” a treaty. However, when the commissioners proved unable to determine the “true intent” of the ambiguous earlier Treaty (and in particular, to ascertain which specific body of water was intended by the term “Long Lake” found in the Treaty), the British commissioner suggested that they resolve the matter by drawing a new line that would be easy to delimit and would accomplish the same purpose-giving each side essentially the same amount of territory as originally intended. The American commissioner sought guidance from Secretary of State Henry Clay, who replied:

The President is incompetent to vest you with authority to enter into any such new engagements, except in the mode in which the Constitution of the United States prescribes. According to that mode, it would be necessary . . . that any compact you might form in concurrence with a representative of Great Britain . . . should be submitted to the Senate of the United States for their advice and consent.

More recently, Secretary of State John Foster Dulles assured the Senate that “the Executive may modify a treaty, or a provision thereof, only by the conclusion of another instrument of equal formality, i.e., by another treaty entered into by and with the advice and consent of the Senate.”

Both sides seem to agree that the proper constitutional test in the case of the ABM Treaty is whether any new agreement with Russia or other former Soviet republics includes “substantive changes” to the 1972 ABM Treaty. In the absence of such changes, the American Law Institute has noted that, historically, “the Senate has apparently acquiesced” in permitting the President to elect to continue a treaty in force with a successor State.

It is the conclusion of this study that the President lacks the constitutional power, without the consent of the Senate, to keep the ABM Treaty in force either pursuant to the 1997 MOU, or, in the absence of that international agreement, separately with either the Russian Federation or the four former Soviet republics that signed the MOU. This is not merely a matter of inserting new Party names into the 1972 agreement, but instead involves several clearly substantive changes to the 1972 Treaty.

• To begin with, there are major changes in the territory constrained by the Treaty that would result from excluding the eleven former Soviet republics that did not sign the MOU-or the fourteen republics, if the MOU is rejected by the Senate and the President seeks to keep the 1972 Treaty in force with Russia alone. If one excludes the three Baltic Republics (which the United States never considered more than “captive nations” under Soviet domination, but whose territory was nevertheless covered by the ABM Treaty and used for one ABM radar site), the territory outside Russian sovereign control excluded by the President from the coverage of the Treaty could be fifty times larger than the Commonwealth of Virginia, or an area more than half the size of the United States. Based upon the territory used by the United States in building its Safeguard ABM system in the early 1970s, and depending upon whether the MOU entered into force or the President attempted to keep the 1972 agreement in force with Russia alone, the excluded territory would leave legally unconstrained enough territory to construct between 400,000 and 1.5 million new complete ABM sites in addition to the one site near Moscow permitted under the Treaty. Since roughly half of the American ABM site was used to build a Perimeter Acquisition Radar (PAR), which could be used in connection with numerous separate (and smaller) launcher sites, these figures are arguably understated. It should be kept in mind that the American Safeguard site, like its Soviet counterpart protecting Moscow, was equipped with 100 interceptor missiles. Thus, the territory constrained by the original ABM Treaty that would be left unconstrained by the new agreement(s) President Clinton asserts makes “no substantive changes” could legally permit the deployment of many millions of new ABM interceptor missiles beyond the 100 allowed under the Treaty.
• One can state with complete confidence that the Senate would not have approved the 1972 Treaty had the Soviet Union insisted upon reserving even a few dozen square kilometers spread around various parts of its territory from coverage by the Treaty; such a provision would have permitted the Soviet Union to deploy unconstrained ABM systems in a manner that would clearly defeat the object and purpose of the Treaty. To exempt a million-and-a-half square kilometers from coverage by the Treaty (without exempting so much as a single square foot of U.S. territory), would produce a very different agreement, which clearly must be submitted to the Senate pursuant to the Constitution prior to taking effect. This is not a close call.
• There are also going to be changes in Parties. This is not a setting where a new State has arisen on the same territory as one with whom the United States had a treaty arrangement, but one in which fifteen new States have arisen-but not one of which is capable of controlling all of the territory governed by the 1972 Treaty, and thus none is capable of carrying out all of the ABM Treaty obligations of the former Soviet Union. Assume for the moment that the President elected to declare that Russia, alone, was “the” successor State to the Soviet Union for purposes of the ABM Treaty. It is obvious that Russia lacks the legal capacity to regulate all of the Soviet territory constrained by the 1972 Treaty-and an ABM Treaty with Russia alone would therefore clearly be a different treaty than the one negotiated as a part of the original SALT process.
• On a closely-related point, the MOU proposes to convert the bilateral ABM Treaty into a multilateral treaty with four of the fifteen former Soviet republics. Under international law, this brings into play new rules governing how the Treaty can be modified, how it is interpreted, and different remedies in the event of a material breach. The Senate may conceivably decide that such an agreement is in U.S. national interests, but it has not yet done so. And there is no precedent for an American President unilaterally transforming a treaty from bilateral to multilateral, much less doing so in the face of formal Senate objections and a statutory prohibition.
• One very fundamental change that would result from multilateralizing the ABM Treaty is that the U.S. vote on the Standing Consultative Commission (SCC)-which, inter alia, would consider the amendments the United States has indicated it may find it necessary to propose within the next year-would be decreased from 50 percent to 20 percent of the total. The SCC operates on the basis of consensus or unanimity, which means that each Party has a veto over decisionmaking. Whereas under the 1972 Treaty only one country had the power to veto a U.S. proposal, under the MOU that number would increase four-fold. Particularly given the fact that the United States has already announced that it may find it necessary to try to amend the Treaty next summer, quadrupling the number of countries able to veto a U.S. amendment is obviously a very substantive change in the terms of the Treaty.

One might add that the ABM Treaty was obviously premised upon the political character of the Soviet Union as a non-democratic Leninist State actively engaged in promoting revolution around the world. It was in that sense very much the kind of “personal” treaty that normally expires when one of the Parties ceases to exist. There is no reason to believe that two-thirds of the U.S. Senate would have approved surrendering America’s ability to protect itself from future attack by missiles armed with nuclear or biological warheads in return for British, French, or Canadian promises to leave their populations unprotected as well. Rather, the clear American objective in negotiating and ratifying the 1972 ABM Treaty was to constrain the behavior of its mortal enemy, the Soviet Union. The United States and the former Soviet republics have all affirmed that the Soviet Union no longer exists. Today, the American people ought to have a strong desire to see the people of Russia-like the people of all other peace-loving States-protected from aggressive missile attacks.

Few scholars have been more outspoken in recent decades than the author in upholding broad presidential powers in foreign affairs-irrespective of which political party occupied the White House and irrespective of the author’s policy preferences on the issue at hand. Thus, for example, he supported the lawfulness of President Carter’s decision to unilaterally terminate the mutual security treaty with the Republic of China (Taiwan) in connection with granting diplomatic recognition to the (Communist) People’s Republic of China.

But what if President Carter had sought to go one step further, and announced that, in connection with recognizing the PRC as the legitimate government of “China,” he had unilaterally agreed that the United States would transfer the mutual security treaty relationship from the Government in Taiwan to Beijing-either by claiming that the PRC was the “successor State” to the treaty or that the process merely involved a “change of governments” within China? Few if any legal scholars would attempt to defend such a decision, despite ample precedent for unilateral executive determination of successor State obligations under treaties and Supreme Court recognition of broad presidential power in connection with the recognition of foreign States. Because the mutual security treaty was “personal” to the regime in Taiwan, President Carter knew that the Senate would never have given its consent to a treaty obligating the United States to guarantee the security of Communist China.

There is a parallel to President Clinton’s effort to transform the ABM Treaty with the Communist Soviet Union into an agreement with a Russia seeking to transition to democracy. Unless the President can say with reasonable certainty that the succession agreement keeps the “same Treaty” in force with the “same Party,” he treads upon the constitutional prerogatives of the Senate by attempting to act alone.

Often, a situation of State succession involves no significant change of relevance to an existing treaty, and it is therefore quite reasonable for the President to agree to continue the bargain with a successor State. As noted, the Senate has often acquiesced in this practice. The more important the treaty, and the more significant the change involved in the succession, the less justified is the President in assuming Senate acquiescence. And certainly there is no justification for assuming Senate acquiescence once the Senate has formally demanded a right to pass judgment on a treaty following the demise of a State and the emergence on its territory of one or more successors.

In the case of the ABM Treaty, certain facts are clear:

• As a matter of law, overwhelmingly approved by the House and Senate and signed by the President on July 23, 1999: “It is the policy of the United States to deploy as soon as is technologically possible an effective National Missile Defense system capable of defending the territory of the United States against limited ballistic missile attack . . . .”
• That policy is incompatible with the fundamental object and purpose of the 1972 ABM Treaty, as set forth in Article I, which was to prohibit either Party from deploying an anti-ballistic missile system “for a defense of the territory of its country”;
• Congress has by law instructed the President to submit any international agreement which seeks to continue the ABM Treaty in force to the Senate for its consideration;
• The Senate has demanded by formal resolution that the President submit the MOU or any other extension of the ABM Treaty for its advice and consent;
• The clear language of the 1997 MOU specifies that it shall enter into force only when ratified by the Parties pursuant to their constitutional procedures, which for the United States requires the consent of two-thirds of the Senate;
• The President has repeatedly assured the Senate and the Congress that the MOU will be submitted to the Senate for its advice and consent;
• The MOU clearly involves substantive changes that, under the Constitution and consistent State Department practice, would require resubmission to and approval by two-thirds of the Senate before taking effect; and yet
• The President has not submitted the MOU to the Senate, and has repeatedly threatened that if the Senate eventually denies its consent to the ratification of the MOU, he intends on his own authority to continue the ABM Treaty in force with at least Russia and perhaps other States as well.

Not even the most ardent champion of presidential authority in foreign relations can sustain this as a proper exercise of constitutional authority.

Prudential Considerations

Quite apart from the requirements of international or constitutional law, there are compelling policy grounds for submitting the MOU to the Senate and giving the six-month notice provided for in Article XV of the ABM Treaty if the Senate fails to approve the MOU.

To begin with, having an ABM Treaty with Russia and certain other former Soviet republics is not the same thing as having such a treaty with the Soviet Union, and no one can say with any confidence that the senators who in 1972 approved the original Treaty would have voted the same way had the Treaty been with a non-communist Russia instead of the Soviet Union. Russia is not even arguably the “same State” as the Soviet Union-a point its leaders have emphasized from the start-and the rationale for the 1972 accord had far less to do with geography than it did with the political character of the Soviet regime.

In 1972, there were no serious rogue State ballistic missile threats to the United States, and thus the Senate did not perceive that it was voting to leave American citizens vulnerable to missile attack from non-Soviet sources. Another major change since 1972 has involved ABM technology. In 1972, it was understood that the only feasible way of destroying incoming ballistic missiles or their warheads would be by detonating nuclear warheads above a nation’s own territory. Even then, the prospects for success were remote. Today, technology has advanced and many experts believe an effective ABM system can be designed without the use of nuclear munitions. Recent successful intercept tests seem to have confirmed these conclusions.

Submitting the agreement to the Senate is also consistent with long-standing State Department policy on the making of international agreements like the MOU. For nearly half-a-century, the Department of State has had written procedures in effect to guide the diplomatic community in deciding when an international agreement should be submitted to the Senate as a formal treaty and when it can be handled by executive agreement. Among the factors to be considered are: (1) whether the agreement involves commitments or risks affecting the nation as a whole; (2) past U.S. practice as to similar agreements; (3) the preference of Congress as to a particular type of agreement; and (4) the proposed duration of the agreement.

Each of these considerations argues strongly for submitting the MOU, or any other international agreement attempting to continue the 1972 ABM Treaty in force, to the Senate. Indeed, it is difficult to imagine a national security issue of greater importance to the United States than whether it shall surrender its legal right to try to protect its people from ballistic missile attacks-attacks which a bipartisan commission of experts said are increasingly possible.

The President’s constitutional choices are clear. He has already promised to comply with Senate and congressional demands that the MOU be submitted to the Senate, and the clear terms of the MOU call for its submission to the Senate like any other new treaty. He has taken an oath of office to “preserve, protect and defend the Constitution of the United States.” But he obviously has the power to violate that duty and to deny the Senate its proper constitutional roleÑeither by announcing that he will implement the MOU without submitting it to the Senate, or by ignoring a Senate decision to reject the MOU-and take his chances politically. That would be most unfortunate. The political branches of Government have already been through one bitter constitutional confrontation over the ABM Treaty, and one can only hope and pray that the President will consider his options carefully and decide wisely.

Robert F. Turner is a professor at the University of Virginia School of Law, a co-founder of the Center for National Security Law, and a member of the Council on Foreign Relations. He has served in the Pentagon, the White House, and the State Department, and was the first president of the congressionally established United States Institute of Peace. Dr. Turner received a Ph.D. and a J.D. from the University of Virginia School of Law.