The Senate Ethics Committee has denied US Sen. Russ Feingold, D-Wi., permission to join a lawsuit that asks the federal courts to clarify whether it was appropriate for President Bush to unilaterally end participation by the United States in the thirty-year-old Anti-Ballistic Missile Treaty.
But that does not mean that Feingold is giving up on the suit brought by 31 member of the House of Representatives, or the cause of pushing the Senate to assert its Constitutionally-defined authority role in deciding whether the US enters and exits international treaties.
“I wanted to be a part of the lawsuit because I think this is a fundamental issue for anyone who cares about the separation of powers. The fact that I am not going to be allowed to be a plaintiff does not make the lawsuit, or the issue, any less important,” says Feingold, a lawyer who says he is considering filing an amicus brief in support of the legal action. “I am going to continue to do everything I can to help the members of Congress that are bringing the suit.”
The Senate requires that members receive a Ethics Committee waiver from rules regulating gifts before accepting free legal assistance. Senators who are forced to defend themselves against lawsuits are routinely granted waivers. But committee staffers said the rules were read narrowly in regard to Feingold’s request because he sought to become a plaintiff in a legal action.
Noting that the suit he sought to join raises an important Constitutional question, Feingold told The Nation, “I really was surprised that the waiver was denied in this case. It seems to me that this was a reasonable request for a waiver, which they should have granted.”
The decision to prevent Feingold from joining the suit means that no senator is officially a party to the legal action. Since it is the Senate that approves treaties — and that Thomas Jefferson and other founders of the nation said should decide when to exit treaties — some legal observers say the suit’s prospects will suffer because there is not a senator among the plaintiffs.
But Feingold says the suit remains vital and necessary.
“This is all very frustrating because none of this should be happening,” the senator said of the conflict over the president’s withdrawal from the ABM Treaty. “The White House shouldn’t be undoing treaties without the permission of Congress. This is shifting a fundamental aspect of our system. If presidents are allowed to withdraw from treaties whenever they want, then we really are changing the relationship between the legislative and the executive branches. That makes this a very sad moment for the Constitution and the country. If this change is allowed to be made, without objection from Congress or the courts, then we will have a very hard time getting back to the proper separation of powers.”