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Senator Ervin. But I have no doubt of the power of Congress in respect to the third category of agreements where Congress has to act subsequently to confirm them, and I think a statute of this kind would produce smoothness in Government operations rather than the contrary. When the President makes an agreement which cannot be carried out without the subsequent action of Congress, there is going to be a time delay there automatically, until Congress enacts the legislation.
Mr. BUZHARDT. That is true. In those cases, and the best example I know is where we negotiate for base rights in a country where it is not under a treaty, through an executive agreement, all we really get from that is an option to use_facilities of a foreign government. Sometimes ports and harbors. Real estate. But I think there would be really no purpose in Congress wanting to have a separate consideration of those other than having increase in workloads because nothing can be done without further authorizations and appropriations.
Senator ERVIN. No; but when an agreement is made without it being expressly stated that the agreement is subject to disapproval, or approval as the Congress might see fit, the President puts the Congress in a rather embarrassing position. As I told Mr. Stevenson yesterday, it is much like a man's wife going out and buying some clothes without his consent. It puts the Congress in the position of the husband who has to tell the tradesman that he is not going to pay for the clothes that his wife bought.
Mr. BUZHARDT. Mr. Chairman, I can't think off hand of any agreements that fall into that category because as I say, our base agreements are options for our advantage. They are options. They are clearly dependent on congressional authorization and appropriations. There would be no embarrassment and no breach of arrangements if Congress chooses not to provide the funds or the authorization to use them.
Senator Ervin. But the trouble is that the President says I have already made this commitment.
Mr. BUZHARDT. Well, if it is a commitment then it is more than
Senator Ervin. If Congress doesn't go along with the President's action, then the Congress is put in a fix where it has to embarrass the President and the country by refusing to carry it out. That is what I am trying to avoid.
Mr. BUZHARDT. I understand it, Mr. Chairman, although I find it hard to find a specific case where those circumstances would exist.
Senator Ervin. I can imagine a great many where they exist. For example, a few years ago the President went down to South America and made a speech and told them how much money he was going to give them in the Alliance for Progress and Congress refused to authorize it.
Mr. BUZHARDT. He just didn't sign an executive agreement. He just made a promise in a speech.
Senator ERVIN. About the same thing. If he has written out a piere of paper-I think it was written out in the speech.
Mr. BUZTARDT. It is written out in the speech. I recall the speech. Senator Ervin. He said we are going to give it to you. The practi
cal effect of the speech is the same as if he had signed his name to it and made an agreement. I see little difference.
Mr. BUZHARDT. There would have had to have been a consideration, of course, for the agreement, I think. I think there was—I think it would have had to have been conditioned on subject to congressional action. I do not think there would have been any embarrassment, in fact, I don't think there was, the fact that it wasn't.
Senator ERVIN. I think it was sort of embarrassing to our relations with those countries. Here is a man who they think is the boss, who goes to their country and makes several promises, and then Congress subsequently has to repudiate the promises. So I think it would be better to have this bill which would prevent such embarrasments. Except in the cases where the executive has to report it to the committee, the Congress has no way to know what the executive branch of the Government is doing in this field.
Mr. BUZHARDT. Mr. Chairman, I might note that if you are going to take care of the situation you just described to me, you had better increase this definition in here to include speeches of the President.
Senator ERVIN. Yes.
Mr. BUZHARDT. Because I am not quite sure that the Congress then could constitutionally move because to require the President to have his speeches approved by the Congress, I think would be going a bit far. I don't think that is a problem that can be controlled by the legislative process, what the Executive says in his speech.
Senator ERVIN. No. Certainly, the President has freedom of speech under the First Amendment and we can't keep him from speaking, but we can keep him from carrying out his speeches or his executive agreements where they require subsequent Congressional action.
Mr. BUZHARDT. Really the point I am making, Mr. Chairman, is I can't think of an instance where we have had actually an executive agreement which attempted to commit the Government and which was not conditioned on subsequent Congressional approval. So I understand it could not be implemented.
Senator ERVIN. Why would Congress not have authority under the Constitution to provide that any agreement made by the President without its consent, which required subsequent Congressional implementation, should be placed in the form of a treaty and submitted to the Senate for ratification?
Mr. BUZHARDT. I think, Mr. Chairman, you have a very different proposition when you require the President to submit an agreement to the Congress in some cases for approval as legislation or treaty than if you specified that it must be submitted as a treaty. I think it would raise constitutional question as well as grave practical ques. tions if vou required the President in advance to make certain categories of agreements in treaties. Many times form of the agreements affects the substance. The fact it is a treaty gives it more dignity and significance internationally than on given occasions might be desirable.
Senator ERVIN. But that is
Mr. BUZHARDT. It might create a difficult problem and interfere drastically with the conditions of our foreign relations.
Senator Ervin. But that is precisely what the Congress did in secion 33 of the Arms Control and Disarmament Act.
Mr. BUZHARDT. They put in the alternative there and I think in hat particular case since it was in the alternative it left the Presilent's condition of foreign relations to him as to which route he would choose and he could have an executive agreement and therefore not give it the significance internationally.
Senator Ervin. But they could put it in the alternative, either (a) or (b), as Congress did, saying that there must be a subsequent creaty or subsequent act of Congress approving his action. Congress an specify either one of those alternatives if it wishes.
Mr. BUZHARDT. I don't agree, Mr. Chairman. I think they could lo it one way or the other, but if you would prescribe one way or the other, you would interfere with the President's conduct of the foreign relations.
Senator Ervin. All the President is doing there is carrying out the authority given him by Congress.
Mr. BUZHARDT. I know, but you are telling him how he will exe'ute. I think there is a limit to the degree of whether—the limit is in the impairment of his ability to do it and his constitutional uuthority to conduct foreign relations.
Senator Ervin. His negotiation is done. His negotiation is done before he ever makes his report to Congress.
Mr. BUZHARDT. Mr. Chairman, whether
Senator ERVIN. But this act says it shall not be binding on the United States unless it is approved by subsequent treaty or subsequent act of Congress.
Mr. BUZHARDT. If it says or, I agree, as this does, but if it said one and excluded the other, then I think you would
Senator Ervin. I am totally incapable of comprehending how such a statute would hinder the President, because it doesn't affect his negotiation. His negotiation is complete.
Mr. BUZHARDT. It could very easily affect his negotiations because in the process of negotiating a treaty or executive agreement, it is often of importance to the Government which you are negotiating with whether or not the agreement which you signed will be considPred by the United States to be a treaty or an executive agreement. It does have an international impact and a country might agree to do it one way but not the other regardless of the substantive terms.
Senator ERVIN. Well, that is something about the power of the other country, not the power of the Congress as I see it.
Mr. BUZHARDT. It is, but if you take this latitude away from the President to make within bounds the choice, then you impair his ability to make agreements and to negotiate agreements successfully.
Senator ERVIN. Well, I think Congress can make it either way. I can't see why the alternative is necessary, because the negotiations are completed before the President ever comes for the authorization or for the ratification, as the case may be. That is a matter between Congress and the President, not between the President and a foreign country. I think Congress can provide that an agreement must be submitted in the form of a treaty.
Mr. BUZHARDT. I would respectfully disagree with you, Mr. ChairMr. EDMISTEN. Mr. Buzhardt, don't you believe in retrospect that it would have been the better part of wisdom for the Spanish bases agreement and Azores agreement and Bahrein agreement to have been submitted to the Congress?
Mr. BUZHARDT. I wouldn't comment on it. I really have not been into it in that detail. I frankly have not even read the hearings on it.
Mr. EDMISTEN. Well, we were talking about embarrassment to the United States a moment ago. If S. 3447 which Senator Case has introduced were passed, it seems that it might cause embarrassment to the United States because it simply says unless those agreements are submitted as treaties, then the aid shall be cut off. The funding. I can conceive of that as being quite embarrassing and I think it could have been avoided had it been submitted as a treaty.
Mr. BUZHARDT. It probably would have been a bigger embarrassment in some instances if it had been submitted as a treaty. As a general rule I would not think a base agreement was the type of agreement which would merit the status of a treaty which requires Senate ratification. In the first place, it is an option on the part of the United States and I am speaking of a simple base agreement, not one which committed the United States to do something, but a simple base agreement that gives the United States the option to utilize a base on foreign territory which the country could not possibly do without the appropriations of the Congress and in many instances the authorization of military construction in mot countries I might say. I just don't think that is of sufficient significance to permit treatment as a treaty.
What I am trying to say here is that there are factors other than the concurrance or the procedures within this country relative to a treaty which bear on the issue of whether or not an agreement should be treated as a treaty or an executive agreement.
Senator Ervix. But a lot of Senators disagree with that because when you establish a base and put your troops there, you make it certain, rather, you subject them to the potentiality of being attacked by a foreign nation and thus precipitating armed conflict.
Mr. BUZHARDT. Mr. Chairman, I agree, and if the Congress doesn't want troops there, they have adequate authority to keep them from being put there. In authorizing an appropriations bill, all they have got to do is say none of the funds appropriated herein shall be used for the payment of troops in a given country, and that is it.
Senator Ervin. That is all very true, but the alternative is this. The President makes an agreement with a foreign country which is not very well versed on our constitutional processes, and Congress has no choice then except to ratify the action of the President, or repudiate him, and if Congress repudiates the action, it has a very disastrous effect on our foreign relations.
Mr. BUZHARDT. The same would be true if the President negotiated and submitted to the Congress and the Congress rejected.
Senator Ervin. No, no, because they would know that the President is just negotiating in that case.
Mr. BUZHARDT. Mr. Chairman. It is inconceivable to me that any country with which we negotiate an option to use a base is not
aware of the fact that only the Congress appropriates the money. In fact, sometimes in dealing with these foreign countries, I think they know our congressional procedures better than some of our own people.
Senator Ervin. I think they know about our constitutional and treaty making provisions, but I doubt very seriously they know all of the laws written in 113 or 114 volumes of our United States Code, because I don't know any American lawyers who know that.
Mr. BUZHARDT. I don't know either, but when it comes to things that affect those foreign countries, what those appropriations committees do and how they do it, I am under the impression they are thoroughly familiar.
Mr. EDMISTEN. I believe that you are not quite as concerned about this bill as the State Department is.
Mr. BUZHARDT. I am most concerned about this bill, Mr. Edmisten. I wouldn't know where to start if it were passed.
Mr. EDMISTEX. You wouldn't know what to send over to Congress?
Mr. BUZHARDT. I don't know what it applies to in the first place. I think it would impair the ability to negotiate in the most serious fashion. I think it would frankly-it could tie the Congress up in a great deal of trivia and cause the greatest type of constitutional questions and possibly even confrontations between the constitutional confrontations between the executive and legislative branches. I certainly didn't mean to minimize my concern about the bill in anything I said.
Mr. EDMISTEN. Under interpretation of what an executive agreement is, how many do you think you would have to send from the Defense Department every year to the Congress?
Mr. BUZILARDT. I frankly have no idea. If you speak of executive agreement in the sense of the international law—they are called treaties generically-and in the sense of title 1, U.S.C., section 112(a), we wouldn't have to send any, I think, or a very few. The State Department would send them. If you talk about commitments which bind the United States which are made by-with another nation, which are made by the President or any officer or employee or representative of the executive branch of the U.S. Government, we would have to send to some other committee inumerable pieces of paper that we now send to somebody else. It is inconceivable we would have to send our sales contracts, and they get rather bulky. As I say, they run about 3,300 a year. I can't conceive that the Congress would want them or have any use in looking at them.
From my own standpoint they are contracts. We go through a long process, there is private participation in these. It is much like any bank loan. We render opinions. The opinions set forth the statutory authority and place the full faith and credit of the United States to some private lender, this type of guarantee. A thick set of documents and annexes describing technical equipment, depending on what is sold, conditions of the indemnity and who bears the risk of loss at various points, enormously technical sort of procedure.
The military assistance grants on grant aid, I can't conceive that Congress would want to wade through each one and have some responsibility to act or else hold them up for 60 days because they