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are fairly standard format. If you want to know what they say, you can read the Foreign Assistance Act, in any given year, they were passed and you can find out just about what they say. They are a little more spelled out in detail but that is what they say. They say if we give you any foreign grants, you will abide by these terms. That is what it says. Then we can't give them any unless we come back to the Congress, justify the program, get the authorization and get an appropriation.
Senator Ervin. They don't anticipate that Congress would trouble the executive department very much while the executive department was carrying out prior authorizations, do you?
Mr. BUZHARDT. I think it could I think if you made these things --for instance, on sales agreements, if you make sales agreements conditioned for 60 days, I think you would seriously impair the sales program. The commercial world just doesn't abide, and this is a commercial type transaction, doesn't abide that kind of time. Time is often of the essence. In fact, we now get letters from Congress, most of them from individual Congressmen, imploring us to hurry up on most of our military sales agreements. Move faster.
Senator Ervin. Well, I quite understand none of us like to have any laws that apply to us, and I understand the executive branch's opposition to any legislation which really would make effective the powers which Congress has to supervise the carrying out of the saws. I think it is a natural reaction. I don't like any laws that put any obligations on me, and I have been struck ever since I have been in Washington with the fact that the executive branch doesn't like congressional limitations.
Mr. BUZHARDT. I agree, Mr. Chairman, that we don't like limitations but I would disagree with you as to whether this bill would make a congressional act effective. I think it would be more likely to make it ineffective.
Senator Ervin. Well, you have given us a very helpful and very illuminating and very comprehensive view of the subject to which the bill relates, and I want to thank you again.
Mr. BUZHARDT. Thank you, Mr. Chairman. It was a pleasure to be here.
Senator Ervin. The record will be kept open for 10 days for further insertions.
(Whereupon, at 12:45, the hearing of the subcommittee was concluded.)
BIOGRAPHICAL INFORMATION—J. FRED BUZHARDT, JR. J. Fred Buzhardt, Jr., was nominated by President Richard Nixon to be General Counsel of the Department of Defense on August 5, 1970, was confirmed by the United States Senate on August 13, and took the oath of office for the position on August 20.
Mr. Buzhardt, at the time of his appointment, was serving as Special Assistant to the Assistant Secretary Defense for Administration. He also served as Special Assistant to the Chairman of the Blue Ribbon Defense Panel from June 30, 1969, to June 30, 1970.
As General Counsel, Mr. Buzhardt will be the chief legal officer of the Department, responsible for all legal services performed with and involving the Department of Defense.
Born in Greenwood, South Carolina, on February 21, 1924, Mr. Buzhardt attended Wofford College, Spartanburg, South Carolina. He graduated from the U.S. Military Academy with a Bachelor of Science degree in Military Engi.
neering in 1946, and received an LL.B. degree from the University of South Carolina in 1952.
Mr. Buzhardt served in the U.S. Army Air Corps from October, 1942, to July, 1943, and the U.S. Air Force from 1946 through 1950 as a First Lieutenant.
Mr. Buzhardt practiced law in McCormick, South Carolina, from 1952 through 1958. From 1958 through 1966, he served on the staff of Senator Strom Thurmond. He resumed his private law practice in 1966 and maintained his general practice until he joined the Department of Defense.
Mr. Buzhardt resides with his wife, the former Imogene Sanders, at 3817 Prince William Drive, Fairfax, Virginia. They have four children-Linda, 22; Joe F., III, 19; George, 17, and Jill, 15.
[From the Congressional Record, vol. 117, No. 11, Feb. 4, 1971)
S. 596-INTRODUCTION OF A BILL RELATING TO Es
Mr. CASE. Mr. President, I introduce for appropriate reference a bill requiring the transmittal of all executive agreements to the Congress within 60 days of their execution.
In the closing days of the 91st Congress when I originally introduced this bill, it had become abundantly clear to me and, I believe, to many of my colleagues that one of the major deficiencies in our relationship with the executive branch which must be remedied is that of congressional access to the terms and conditions of this Nation's nontreaty agreements with foreign nations. Only with such full knowledge, which my bill is intended to provide, can the Congress carry forward the systematic and continuing review of U.S. commitments which was pioneered by the Symington Subcommittee on U.S. Security Agreements and Commitments Abroad during the session just past.
I hope that the executive branch soon will provide its formal response to my bill and I trust that the Committee on Foreign Relations shortly thereafter will begin consideration of this potentially far-reaching measure.
Fourteen years ago the Senate approved a similar measure introduced by former Senator William F. Knowland, but it was not subsequently voted upon by the House. It is now time for the Congress to complete this action previously begun.
The PRESIDING OFFICER (Mr. FANNIN). The bill will be received and appropriately referred.
The bill (S. 596) to require that international agreements other than treaties, hereafter entered into by the United States, be transmitted to the Congress within 60 days after the execution thereof, introduced by Mr. Case, was received, read twice by its title, and referred to the Committee on Foreign Relations.
S. 596, 92nd Cong. second sess.
A BILL To require that International agreements other than treaties, hereinafter entered
into by the United States, be transmitted to the Congress within sixty days after the execution thereof
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 1, United States Code, is amended by inserting after section 112a the following new section : "S 112b. United States international agreements; transmission to Congress
"The Secretary of State shall transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President."
SEC. 2. The analysis of chapter 2 of title 1, United States Code, is amended by inserting immediately between items 112a and 113 the following: 1121). United States international agreements; transmission to Congress.”
S. RES. 214, 92nd Cong. first sess.
RESOLUTION Relative to the submission of any Portuguese fare agreement as a treaty
Whereas the Constitution states that the President of the United States must have the advice and consent of two-thirds of the asenate in order to make treaties;
Whereas an agreement with Portugal, which would provide for the stationing of American troops overseas and which would furnish Portugal with large amounts of foreign aid, is clearly a matter of sufficient importance to necessi. tate its submission to the Senate as a treaty ;
Whereas the Congress has the sole constitutional right to appropriate funds for foreign assistance programs: Now, therefore, be it
Resolved, That any new agreement with Portugal for military bases or foreign assistance should be submitted as a treaty to the Senate for advice and consent.
No economic assistance should be furnished to Portugal without affirmative action by both Houses of Congress.
[From the Congressional Record, May 24, 1972]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(By Mr. Case) S. 3637. A bill providing that no funds may be obligated or expended to carry out certain agreements to which the Senate has not given its advice and consent. Referred to the Committee on Foreign Relations.
Mr. CASE. Mr. President, I am today introducing a bill which provides that no money can be spent to carry out an agreement with a foreign country for an American military base or for the storage of nuclear weapons in that country unless the agreement is submitted to the Senate as a treaty and the Senate then gives its advice and consent.
My bill would also apply to agreements with foreign countries which revise or extend military base or nuclear storage arrangements previously entered into.
The power of the purse is Congress' ultimate weapon, and I am proposing that it be used to right the imbalance which has grown up in the conduct of our foreign relations. I am trying to change the practice that has become sa prevalent under the last six Presidents of entering into arrangements with foreign governments under the cover of so-called executive agreements and thus skirting the constitutional requirement for Senate advice and consent.
The Constitution is absolutely clear on this point. There is no question that our Founding Fathers intended that all major agreements with foreign countries be treaties, subject to Senate approval. They would not have accepted that the executive branch has the option simply to call an important commitment an executive agreement and put it into effect without the participation of the Senate. Yet, this is the current practice, and it is in direct conflict with the system of checks and balances that the Founding Fathers so carefully wrote into the Constitution.
My bill concentrates on two areas which are crucial to our national securits. It does not include or exclude agreements on other subjects which, by virtue of their importance, should also be considered as treaties. Perhaps additional legislation will be necessary later.
But for now, I am chiefly concerned about, first, the stationing of American troops overseas in military bases and second, the storage of nuclear weapons abroad. Actions taken in either one of these areas can lead to a commitment toward the host country and ultimately to war. We cannot allow our country to become entangled in such serious obligations without the participation of the legislative branch, and through it, the American people.
There is no way that the Congress can compel the Executive to submit important agreements to the Senate as treaties. Yet Congress in turn does not have to appropriate any funds to pay for the costs of the agreements. And the constitutionally mandated balance between the Executive and the Congress will not be restored until the Congress takes strong action to restore it.
I have long been concerned about the abuse of the executive agreement. Yearly 2 years ago I introduced a bill in the Senate which required the Executive to send all agreements with foreign countries to the Congress within 60 days of enactment. In this way Congress would at least have knowledge of what our Government had promised other countries. Despite the administration's initial opposition, the Senate passed this bill $1–0 in February. Only last week, the administration changed its position and announced it would no longer oppose this comparatively mild measure.
But over the last 6 months there have been new examples of executive agreements being used to put major deals into effect. Clearly, congressional knowledge of these agreements, while highly desirable, is simply not enough.
Last winter, the Executive entered into agreements with Portugal and Bahrain for American military bases. In the Portuguese case, our Government promised Portugal about $435 million in credits and assistance over a 25month period in return for continued use of bases in the Portuguese Azores. With Bahrain, we agreed on the establishment of military facilities on that Persian Gulf island at annual rental of several hundred thousand dollars a year.
I wrote to the administration asking that these two agreements be submitted to the Senate as treaties—but with no success. Then I introduced a Senate ressolution which stated that the administration should submit the two agreements as treaties. This resolution passed the Senate 50 to 6 in March, but the administration refused to adhere to the sense of the Senate, which, of course, was not binding. I was not content to let the matter drop, and on April 4 I introduced a bill which cuts off all money to implement the Portuguese and Bahrain agreements until they are submitted to the Senate as treaties.
Mr. President, the Foreign Relations Committee yesterday approved this bill for the cutting off of implementing funds for the two agreements until they are submitted to the Senate as treaties. At the same tin the 'oreign Rela tions Committee also approved the substance of the bill which I am introducing today. Thus, the specific fund cut off for Portugal and Bahrain and the broader measure blocking funds for future executive agreements on military bases and nuclear weapons storage will both be included in this year's Foreign Assistance Act which will soon be before the Senate.
Mr. President, I ask unanimous consent that a copy of the bill I am introducing be included in the Record along with an article I recently wrote for the Christian Science Monitor and other newspaper articles.
There being no objection, the bill and articles were ordered printed in the Record, as follows:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no funds may be obligated or expended to carry out any agreement, on or after the date of enactment of this Act, between the Government of the United States and the government of ang foreign country (1) providing for the establishment of a military installation in that country at which combat units of the Armed Forces of the United States are to be assigned to duty, (2) revising or extending the provisions of any such agreement, or (3) providing for the storage of nuclear weapons or the renewal of agreements relating to such storage, unless such agreement is submitted to the Senate for its advice and consent and unless the Senate gives its advice and consent to such agreement. Nothing in this Act shall be construed as authorizing the President to enter into any agreement, relating to any other matter, with or without the advice and consent of the Senate.
(From the Christian Science Monitor, May 15, 1972)
SEPARATION OF POWERS
(By Clifford P. Case) As every schoolchild knows, the American constitutional system is based on checks and balances. Fearing the concentration of power in one man or even
one branch of government, the Founding Fathers wrote a Constitution in which each branch found its authority limited by the other two.
Thus, the executive was to make treaties with foreign countries, but these treaties were not to have effect until approved by two-thirds of the Senate. In this way, it was thought, the executive alone could not involve the country in a foreign entanglement.
Yet the practice has grown increasingly common under the last five presidents for the executive branch unilaterally to bind the United States in agree ments with other countries. The device used has been the so-called executive agreement, which is nowhere mentioned in the Constitution. Under executive agreements, the United States has been committd to destroyers-for-bases, lend lease, Korean mercenaries, and Spanish bases. Congress has always been asked to pay the cost of these deals but has never been able to exercise its constitutional rsponsibility of considering them in advance.
Questions that vitally affect our national security should be treaties—not er ecutive agreements.
In deciding which form to use, the real test must be: If it is important, it should be a treaty. And as Sen. Harry Byrd recently stated, "The doubt should be resolved in favor of the legislative (i.e., treaty) process."
For example, the stationing of American troops abroad can lead to a commitment to the host country and ultimately to war. It is simply too important a question, from both a constitutional and a practical standpoint, to be han. dled by the stroke of a diplomat's pen in an executive agreement.
Yet, in recent executive agreements, the United States “committed" itself to provide Portugal with about $436 million in assistance and credits in return for a 25 month extension of the use of military bases in the Azores, and also agreed to pay several hundred thousand dollars a year to Bahrain for U.S. military facilities on that Persian Gulf island.
For the last five months I have been working to have these two agreements submitted to the Senate as treaties. When my informal approaches to the ad. ministration failed, in December I introduced a resolution calling for the treaty form to be used in both cases. On March 3, the Senate passed my resulution by a vote of 50-to-6.
Still in a March 21 letter, the administration stated that after “serious consideration," it would not submit the agreements to the Senate. Claiming that the agreements "were appropriately concluded as executive agreements," the State Department's only reaction to the overwhelming vote on my resolution was to “have noted the sense of the Senate."
I understand full well that a Senate resolution is not legally binding, so the State Department technically has the right only to "note it." Yet I must say that the attitude of the department was most unwise and shortsighted in the extreme.
At that point I was faced with two choices: Either I could let the matter drop-content to have a resolution with my name on it passed by the Senate -or I could at least try to take further action. I chose the latter course because I believed a fundamental constitutional question was at stake, and on April 4 I introduced a bill (S. 3447) which would cut off all the implementing provisions of the Portuguese and Bahrain agreements until they are submitted to the Senate as treaties.
The Senate cannot compel the executive to submit the agreements, but at the same time the Senate does not have to appropriate any money to pay for the costs of the agreements. The withholding of appropriations is Congress ultimate recourse and should be used, albeit judiciously, in foreign as well as domestic affairs.
Some commentators have mentioned my actions as a part of what is known as the reemergence of Congress in foreign affairs. That is a correct interpretation as far as it goes. But I would look at it more as an effort to return to the letter and the intent of the Constitution. I am not at all interested in the aggrandizement of senatorial power for its own sake. What I am interested in is preventing the executive branch from committing our country to significant and often irrevocable courses of action without approval of the Congress and ultimately the people.