網頁圖片
PDF
ePub 版

Education.-Received the A.B. degree in economics and political science at Davidson College in 1957 and the A.M. degree in international affairs and American government at the University of North Carolina, Chapel Hill, in 1959. The M.A. thesis entitled “Disarmament and Security," was an examination of the relationship between U.S. arms control policy and U.S. defense policy, 1955–1958.

Entered Columbia University through the Russian Institute in September, 1959; later switched to an American government major (with a minor in Soviet and Chinese political institutions) in the Public Law and Government Department. Departed Columbia for several years, beginning in 1961 (see employment record); Ph.D. dissertation not completed.

Employment.Held a departmental assistantship in the Department of Political Science, U.N.C.-Chapel Hill, 1957–59.

Worked as full-time research assistant to Dr. Samuel P. Huntington, director of the Institute of War and Peace Studies (Columbia University), 1960–1961, 1962–1963. Assisted in researching The Common Defense: Strategic Programs in National Politics (1961); Political Power, USA/USSR (1964); and Changing Patterns of Military Politics, International Yearbook of Politcal Behavior Research (1962).

Ford Foundation Senate Intern, 1961–1962, serving full-time on the staff of the Majority Leader of the New York State Senate, Albany.

Budget Examiner, International Division, Bureau of the Budget, Executive Office of the President, 1963–64. Worked on military aid and military sales programs.

Taught American and comparative government as an Instructor in Political Science at the University of North Carolina at Charlotte, 1964–1965 (14, years).

Assistant Professor of Political Science, Davidson College, 1968. . . . Courses in American national government and Soviet and Chinese political institutions.

PUBLICATION OF NOTE

[ocr errors]

1. William E. Jackson, Jr., “Defense: The Missile Nobody Needs,” The New Republic, Oct. 28, 1967.

2. Jon W. Fuller and William E. Jackson, Jr., "Striking the Tripolar Bal. ance," Christianity and Crisis, April 28, 1969.

3. William E. Jackson, Jr., Statement submitted to the Subcommittee on Separation of Powers, Hearings on Executive Privilege (Washington: GPO 1791), pp. 515-520.

S. 3475—TO HELP PRESERVE THE SEPARATION OF POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREEMENTS

THURSDAY, MAY 18, 1972

U.S. SENATE,
SUBCOMMITTEE ON SEPARATION OF POWERS OF THE

COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to recess, at 10:30 a.m.,

in room 1318, New Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding.

Present: Senators Ervin (presiding) and Gurney.

Also present: Rufus Edmisten, chief counsel and staff director: Joel M. Abramson, minority counsel; Walker F. Nolan, Jr., assistant counsel; Philip B. Kurland, chief consultant.

Senator ERVIN. The subcommittee will come to order. First I must apologize for being late. I have been out of Washington for 2 or 3 days.

Counsel will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the subcommittee will hear from Hon. Nicholas deB. Katzenbach, former Attorney General and former Undersecretary of State.

STATEMENT OF HON. NICHOLAS deB. KATZENBACH, FORMER

ATTORNEY GENERAL AND FORMER UNDERSECRETARY OF STATE

Senator Ervin. We are delighted to welcome you back to the city. The subcommittee appreciates your willingness to come far more than I can say.

Mr. KATZENBACH. Thank you very much, Mr. Chairman. It is always a great privilege to testify before you when you are in the Chair.

I have a prepared statement. It is not a very long one. Shall I run through it?

I appreciate the invitation of the committee to testify today and to give you my views on the subject of executive agreement versus the treatymaking power.

The fundamental problem, of course, is to work out acceptable and workable rules for the Executive and Congress in the formulation and implementation of our foreign policy. That is not an easy job, as the Founding Fathers knew, and as we periodically rediscover.

This committee has already heard from a number of eminent constitutional scholars and I believe that there is really very little from a formal constitutional viewpoint that I can add to what they have already said. Executive agreements and treaties are largely interchangeable devices for conducting our international relations whether viewed from the perspective of international or constitutional law. The questions which can arise from a constitutional perspective center around the authority granted to the President to enter into a particular executive agreement pursuant to legislation or to his constitutional authority. Legislative authority may be in the form of a prior authorization, as is normally the case, or simply through enactment of necessary implementing legislation.

I do not think it particularly significant from a constitutional view point whether a binding international agreement is ratified by two-thirds of the Senate or authorized or approved by a majority of both houses of the Congress. Certainly our history is replete with both methods. While the word treaty suggests a certain degree of solemnity that perhaps the word agreement does not, one would be hard put to make a distinction on the basis of the importance of the undertaking. My reading of our own constitutional history is that documents called treaties are normally sent for ratification by twothirds of the Senate, and documents without that label are not. And it is also worth observing that today most treaties are not regarded as self-executing, so that not only is two-thirds of the Senate involved, but a majority of both houses is involved in enacting the necessary legislation.

From both a constitutional and a practical political viewpoint it is important that the President and the Congress pull totgether on the fundamentals of our foreign policy. If the divisions within the Constitution have been, as my old mentor, Professor Corwin believed, an invitation to struggle between the branches of Government, they have equally provided the incentive to come into agreement, because without that agreement no effective foreign policy is possible. As the Chairman has noted, the separation of powers was designed to prevent autocratic decision and force consensus. That seems to me sound enough, and, indeed, I think that is the way in which it has generally worked.

İ recognize that what I have said is not everyone's perception, and that it is difficult for me certainly, and must be difficult for this committee, to view the problem dispassionately. We are, after all, deeply divided in this country at this moment of history with respect to our foreign policy. We have been fighting for many years. a war in Southeast Asia, which has become increasingly unpopular at home--a war in which a majority of Americans wish we could never become involved, and a war which a substantial number of Senators and Representatives do not support. I am not sure that these circumstances are conducive to calm thinking or rational constitutional expression on the part of either the Executive or the Congress.

[ocr errors]

There is today a good deal of feeling on the part of the Congress that since World War II the Executive has played a greater and greater role in foreign policy and the Congress a lesser and lesser one. There is now a desire, which I think this hearing reflects, to restore some constitutional balance. The Congress wished to reassert its prerogatives and, at least to a degree, the Executive seems to be opposed to and fighting this effort.

I think there is a considerable truth to the proposition that the congressional role has declined and the Executive role increased. I am not sure that this is necessarily a bad thing, or that it is not in large measure been made virtually inevitable by the role which the United States has played in the world since World War II. As the U.S. role in both military and economic development has expanded beyond anything conceived in the past, as large numbers of Americans, military and civilian, have been detailed to work abroad on our foreign policy, as billions of dollars have been devoted to this effort the very magnitude of the effort has meant less opportunity for detailed congressional review and oversight.

But I think it would be wrong to think that the Executive has usurped power, or that the Congress has not decisively and consciously supported our post-war foreign policy. That foreign policy was constructed largely out of the felt threat of an aggressive communism and the need to contain it on a worldwide basis. Our structure of defense alliances—NATO, CENTO, SEATO—our military assistance programs-our bases abroad—and even our economic assistance programs—had broad congressional and public support of a bipartisan nature. The authorizations out of the alliance system and the foreign assistance legislation—not to mention other international involvements of a multilateral nature such as the UN, GATT, the ILO, and other U.N.-related agencies—were indeed extensive. And if some of these arrangements were secret—or now seem to have overcommitted the United States--I think it fair to say that it is highly doubtful that they would have been so perceived by Congress or the public at the time. Indeed, I believe the Congress was well and adequately informed, although you gentlemen can judge that better than I. I do not believe that I, as a citizen, was ill-informed as to our foreign policy and foreign commitments, even if some of the details remained classified.

But to say what I have said is perhaps somewhat unfair. The Executive has got a great advantage from a leadership point of view in foreign affairs and it is perhaps politically understandable that he exploits. There is at least some truth to all the arguments for strong Executive leadership which date back to the Constitutional Convention itself. The access to secret and expert information: the need to act with dispatch; the need to speak with a single voice; and so forth. To these quite traditional arguments I would add the fact that the President speaks for all the people; his lack of local or regional bias; the trust and confidence that the public places in him, the more so where our security and physical safety is involved; and the general lack of political interest, expertise or profit in foreign affairs on the part of most members of Congress. It is almost unavoidable that Members of Congress will tend to go

along with the President—at least as long as things seem to be going moderately well. To attack the President on foreign policy grounds is hazardous; it does, in fact, make the policy less effective and it tends to have a vague aura of lack of patriotism—a feeling Presidents have little hesitation in exploiting. In times of foreign difficulty or crisis there are many who feel it important to mute criticism in the knowledge that the very fact of division at home makes any foreign policy less effective abroad.

I say all this because I think it would be a practical mistake to believe that the errors of our foreign policy have been caused by too broad a delegation of authority to the President, too passive an attitude on the part of the Congress. We may indeed have overextended ourselves, have overcommitted our power, have played too active a role. But I believe this was the sentiment of the Congress and the country, not the result of any presidential usurpation of power.

In general, I believe that the result of a greater congressional role will be a less active and somewhat less responsive foreign policy. To a degree, at least, that fits the temper of the times. But I believe that a strong Presidency is both desirable and necessary in the conduct of foreign policy. And I would be reluctant to see our foreign policy bogged down in congressional review of unessential detail.

I do think there is merit to the proposal before you, though I could not support it in its present form. I think Congress is entitled to know, if it wishes, every formal obligation of the United States. I think as is provided in Senator Case's bill, the discipline of having to submit such agreements would be healthy. I do not believe, however, that Congress can constitutionally qualify the power of the Executive to enter into such agreements when they are within his own traditional constitutional prerogatives, at least not by concurrent resolution. Frankly, I believe the purpose of the legislation is served if the President submits such agreements and Congress, in its wisdom, expresses its collective or individual views. If the purpose is to involve the Congress and a political check on the President, I think mere submission will serve the purpose in ordinary times.

I emphasize in ordinary times. Our foreign policy normally does reflect a broad consensus. Particular acts may be criticized-sometimes for short-term political reasons. A President, confident of broad gaged support, can ride the criticism of an immediate unpopular act more easily than can the individual Congressman or Senator. There is merit in not forcing every issue to a vote, and in allowing the President some latitude. Ordinarily he wants and needs that broad underlying consensus, knowing that our policy cannot hope to be successful without it.

That may not be the case at the moment, when we are badly divided and when the President is—in his judgment—trying to salvage what can be salvaged from past mistakes which, if I may say so, were the mistakes of all of us. In his anxiety to prove the value of his policy the President has, I believe, taken quite extreme constitutional views. My hope would be that the Congress does not also over-react.

Thank you.

Senator Ervin. Now, you, I think quite rightly, raise the point that there are certain executive agreements which a President is

[ocr errors]
« 上一頁繼續 »