tion and implementation of our foreign policy. That is not an easy job, as the Founding Fathers knew, and as we periodically redis

cover.

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.

I 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.

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

empowered by the Constitution to make, I think illustrated by the Belmont and the Pink cases where as I construe them, the court held in substance that the power of the President to recognize-receive foreign ambassadors and ministers gave him the power to prescribe conditions for recognition, and, of course, Congress wouldn't have the power, as you point out, to nullify by concurrent resolution or any other means, agreements of that nature. As you also pointed out, many of the executive agreements are made in implementation of policies which have been expressed and authorized by congressional

act.

What do you think about the proposed measures in S.3475 which would require disclosure of executive agreements to the Congress a proposal-I take it you favor the presenting to Congress of executive agreements subject to restrictions as to secrecy where they are sensitive in nature.

Mr. KATZENBACH. Yes, I do, Mr. Chairman. I even have some reservations on the secrecy point. I am inclined to think that has been rather overdone and I think secret agreements don't really have the base of popular support they ought to have if you are going to have a commitment. And very often secret agreements are made, I think, because the foreign government doesn't really want the people in this country to know. I am not sure that is a real good agreement to put a lot of weight on. I think that is pretty thin ice.

Senator ERVIN. I think all of us who have had much experience in Washington think that attempts to keep secrets are rather far too numerous in actual practice and that in many instances there is little justification for the secrecy imposed by the executive branch.

Mr. KATZENBACH. I think that is right, Mr. Chairman, and I am inclined to think if they had to submit everything, secret or not, there would be less secret agreements entered into and submitted.

Senator ERVIN. Now, there is a statute which requires the State Department to make public all executive agreements but the publication which the State Department makes in compliance with that statute, or attempted compliance, is so brief in nature it really doesn't give you any information about the contents of the secret agreements in a great majority of cases because of the very brevity.

Now, would you see any constitutional objection to an amendment to this bill that would provide that even in cases where the making of executive agreement is in exercise of the constitutional powers of the President, that those agreements should also be filed with the Congress and, of course, leaving the Congress with the power to pass a resolution giving the sense of the Congress as well is wise or unwise?

Mr. KATZENBACH. No. I don't see any difficulty with that, Mr. Chairman. In fact, I think that is in essence what I meant. When they want to pass a resulution or individual Senators want to get up and say they think this went too far, I think that is healthy. I think the President would like to know how much support he has in most instances.

Senator ERVIN. Now, recently we have had a great expression of dissatisfaction in the Senate with respect to the agreement about the Spanish bases and also certain other agreements which in effect require Congress either to go along with them or run the risk of

repudiating the agreement. These agreements certainly fall within the implementing of power of Congress in that they call for the exercise of the power of the purse, the controversy surrounding this matter is deeply rooted in the fact that there has been a great claim of power by the Executive. The President has claimed inherent powers in many other fields and in my judgment there has been a very great attempt of the present administration to expand what we call executive privilege far beyond its legitimate scope. All of this has produced a great effort on the part of many Congressmen to try to recapture congressional prerogatives which they feel have been usurped.

Mr. KATZENBACH. Yes. I understand that, and basically I sympathize with it, though I put a note of caution on it because Congress has got a great deal of business before it and Mr. Chairman, to be candid, it doesn't always deal with that in the efficient way, has trouble getting through much of urgent business of the country as it is now, and I think one has to be cautious about all of the built-in possibilities that exist for delay, for not considering, for things falling by the wayside. In fact, I would add a word to what you have just said. I think that probably it is not possible to prevent the President, any President, in the conduct of foreign relations, from putting the country into some pretty difficult positions. I think there just isn't any way you can control the President to prevent this.

I think it is fair to say that if you are going to have bases in Spain, when you are in the process of doing that you are undertaking some pretty open-ended possible commitments, whether you make them in writing or whether they simply come out under the facts. Those bases can be attacked. You do have planes there, weapons there. There can be local attack on them. It can be a foreign attack on them. There are all kinds of things that can occur.

I think this has to be within the contemplation when one establishes bases.

And then finally, I want to add what I hinted at least in my statement. I think President Nixon has made some very very broad claims as to inherent rights of the Presidency. I believe he has made these not so much as a matter of principle as the fact that he has found himself in a very divided situation with respect to Vietnam, and if he were to put these kinds of issues to the Congress at this stage of the game, I think he would feel he was not exercising leadership and be in all kinds of difficulties. There would be delays. Things would not be done.

I suspect it is that kind of consideration that has led him to make some very broad claims, Mr. Chairman, which in other times I think the President would be more hesitant to make.

Senator ERVIN. Of course, the President, being a human being, is subject to the same falability that all the rest of us are subject to. He finds it much easier sometimes to make an executive agreement than it is to subject himself to the danger of having senatorial opposition which might arise in cases submitted in a formal treaty. Mr. KATZENBACH. Yes. Sometimes justified and the record on that is spotty. Sometimes there are terribly picayune objections to something that was difficult to negotiate. While the Senate and the House