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tee 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: 112b. 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 necessitate 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 so 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 security. 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. Nearly 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 81-0 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 time, the Foreign Relations 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:

S. 3637

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 any 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 agreements 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 executive 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 administration 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 resolution 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.

[From the New York Times, April 3, 1972]

AID CUTOFF Urge Over BASE PACTS-AIM IS TO FORCE WHITE HOUSE TO

SEEK SENATE APPROVAL

(By John W. Finney)

WASHINGTON, April 2.-Senator Clifford P. Case proposed today that Congress cut off all assistance to Portugal and Bahrain until the executive branch submits recent base agreements with the two countries to the Senate in the form of treaties.

The New Jersey Republican, contending that "a fundamental constitutional question is at stake," sought to provoke a confrontation with the Administration over its right to bypass the treaty-making powers of the Senate by entering into international executive agreements, which do not require the consent of Congress.

The tendency of the executive branch over the last three decades to rely upon executive agreements rather than treaties has been developing into a major issue as the Senate attempts to reassert what it regards as its foreign policy powers. The Case proposal represents the first attempt to use the ultimate power of Congress over the purse strings to force the executive branch to enter into treaties rather than executive agreements.

TO OFFER AMENDMENT

Senator Case announced that he planned to offer an amendment to the milltary aid authorization bill that would block all assistance promised to Portugal and Bahrain in recent base agreements until the Administration submitted the two executive agreements to the Senate as treaties.

The amendment would cut off $435-million in credits and assistance promised to Portugal in return for a 25-month extension of base rights in the Azores and would prevent the payment of a few hundred thousand dollars in annual rent to Bahrain for the continued use of a small base by the Navy.

Senator Case said in a statement that he would have preferred that "this matter be handled in a less drastic fashion." But he said he felt he had no recourse in view of the Administration's "refusal to take heed of the Senate's will on this question."

On March 3 the Senate approved by a 50-6 vote a Case resolution urging the Administration to submit the Azores and Bahrain agreements to the Senate as treaties. The vote, the Senator said, was "significant not only because of the overwhelming majority by which it was adopted but also because Senators of all ideological persuasions joined in the effort to reassert the Senate's explicit constitutional role in the treaty-making process."

RESOLUTION IGNORED

Senator Case disclosed that the Administration had chosen to ignore the non binding resolution.

In a March 21 letter to the Senator, David M. Abshire, Assistant Secretary of State for Congressional Relations, said the State Department had "noted the sense of the Senate" but had decided not to submit the Azores and Bahrain agreements.

The State Department position, Mr. Abshire wrote, was that the base arrangements were "appropriately concluded as executive agreements" since they “involve no new policy on the part of the United States nor any new defense commitment."

The letter said that to seek Senate advice and consent "would be in our view carry a strong implication of new commitments that were not in fact intended by the parties."

Senator Case protested that the State Department's attitude was "most unwise" and "short-sighted in the extreme."

"The framers of the Constitution," he said, were explicit in their inclusion of the requirement for advice and consent of the Senate in the making of a treaty. And nowhere in the Constitution did they mention that the executive could skirt Senatorial approval by simply calling a pact with a foreign government an executive agreement."

"The Senate cannot compel the executive to submit any agreements," he said, "but at the same time the Senate does not have to appropriate any money to pay for the agreements' cost."

If the amendment were attached to the military aid bill, the issue would go to a Senate-House conference committee, where House conferees probably would oppose the restriction. But the Senate conferees, drawn from the Foreign Relations Committee, would be in a position to demand acceptance of the amendment as a price for approving the bill.

[From the Washington Post, April 3, 1972]

SENATE TO TEST NIXON POWER ON TREATIES

(By Spencer Rich)

Angry with the administration for refusing to submit the issue to the Senate in treaty form, Sen. Clifford P. Case (R.-N.J.) plans to move Tuesday to block the Nixon administration from setting up two military bases in Bahrain and the Portuguese-owned Azores islands.

Case announced that he will submit legislation cutting off all proposed U.S. payments to Portugal and Bahrain for the bases until the administration seeks each base agreement as a treaty requiring a two-thirds Senate vote.

The Case move which is expected to receive broad backing in the Senate, is another incident in the prolonged confrontation between the Senate and the Executive Branch over control of foreign policy. It is unlikely, however, that a Senate bill requiring submission of the accords as treaties would pass in the House.

Case contends that the base agreement with Portugal and Bahrain contain substantial commitments by the United States and should be submitted to the Senate in treaty form for ratification by the normal two-thirds vote. The Senate on March 3, by a 50-to-6 vote, passed a resolution asking that the agreements be submitted in treaty form.

However, the administration informed Case March 21 that it believes the agreements for the two bases were "appropriately concluded as executive agreements," and has declined to comply with the March 3 Senate request.

Assistant Secretary of State David M. Abshire, in a letter to Case, said the agreements for U.S. bases at the two locations "involve no new policy on the part of the United States nor any new defense commitment" He said that to submit the base agreements as treaties might "carry a strong implication of new commitments that were not, in fact, intended by the parties."

An executive agreement, unlike a treaty, need not be ratified by the Senate. However, the two agreements still require enabling legislation to carry out the U.S. part of the agreement, and that is where Case intends to strike.

The agreement with Portugal extends U.S. base rights in the Azores for 25 months, Case said, in return for about $435 million in U.S. assistance and credits. Case said he will seek to block all attempts to hand over the $435 million-barring loans of vessels to Portugal, any type of sale of agricultural commodities, all transfers of educational funds and excess defense articles, and all export-import bank financing of any type for Portugal under the executive agreements.

Payments to Bahrain for establishment of a U.S. naval base in that Persian Gulf island also would be cut off.

Case said, "There is no question in my mind that in and of itself, the stationing of American troops overseas is an issue of sufficient importance to necessitate the use of the treaty process." He said the stationing of any troops abroad could lead to a commitment to the host country "and ultimately to war." and the Senate should have the right to pass on this risk.

Case said the dispute involved "a fundamental constitutional question”— whether the Senate has the right to review foreign policy actions which could lead to major U.S. commitments and involvements abroad. "The Senate cannot compel the Executive Branch to submit the agreements," said Case in a statement, "but at the same time the Senate does not have to appropriate any money to pay for the agreements' costs."

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