Memorandum for John Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council: Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty [November 15, 2001]   [open pdf - 3MB]

This Justice Department memo from the Office of Legal Counsel addresses the opinion that the President has the right to suspend certain provisions of treaties unilaterally. "This is to provide you with our views on the question whether the President has the constitutional authority to suspend certain articles of the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435 (the 'ABM Treaty') insofar as is necessary to allow the development and testing of missile defenses. You have asked us to consider two cases: first, suspension of the relevant articles by mutual consent of both the United States and the Russian Federation; second, unilateral suspension by the United Slates. We conclude that the President has the constitutional authority to suspend the articles in either case. We begin by setting out in Part I the relevant features of the ABM Treaty. In Part II, we review the President's constitutional authorities over treaties. In Part III, we address the President's specific powers of treaty termination and treaty suspension. Part IV illustrates these powers by reference to the practice of the United States. Part IV(A) addresses termination, and Part IV(B) suspension. Part V demonstrates that, whereas 'amending' an Article II treaty requires Senate advice and consent, the partial suspension of a treaty does not."

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