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[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
al 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.”
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 vie carry a strong implication of new comp tments that were not in fact intended by the parties."
Senator Case protested that the State Department's attitude was “must 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 Yixox 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 Vixon 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 forin for ratification by the normal two-thirds vote. The Senate on March 3, ivy a 50-to-6 vote, passed a resolution asking that the agreements be submitted in treaty forin,
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 l'.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 $135 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 exeutive 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 comne! the Executive Branch to submit the agreements," said Case in a statement, “but at the same time the Senate does not have to appropriate ang money to pay for the agreements' costs."
In his letter to Case, Abshire said the agreement on the Azores' base continnation is in implementation of one already existing commitment” under the North Atlantic Treaty, which was approved by an overwhelming majority of the Senate."
He added, “We will continue to make every effort to keep the appropriate congressional committees informed of important agreements under negotiation and to consult with those committees whenever there is a serious question whether an international agreement is to be made in the form of a treaty or otherwise."
[From the Washington Post, April 7, 1972)
THOSE PACTS WITH PORTUGAL AND BAHRAIN
Last winter the United States made a formal agreement with Portugal to use Lajes field in the Azores, and it took over a British Persian Gulf facility in Bahrain to use as a base of its own. Contending that these executive agreements circumvented the Senate, Senator Case urged the administration to submit them both as treaties. It refused. The Senate then endorsed his plea, 50 to 6. Again the administration refused. So now he is asking the Senate to block funds or aid in any form from flowing to Portugal or Bahrain.
Nr. Case believes the fundamental question of the Senate's right to pass on pacts with foreign governments is involved, and we believe he is right. To argue that the United States has been using the Azores base for three decades -the last one without an agreement-begs the constitutional question posed by the formal renewal and ignores the key political question of Portugal's increasing involvement in wars in its three African colonies. As for Bahrain, the flimsiness of the State Department's argument—that there's no difference between using a British base and taking over that base-illustrates nothing so much as why the Department's estate has fallen as low as it has.
In the Portuguese case the political issue is particularly sharp. The package which included the base agreement also contained some $35 million worth of assorted kinds of economic aid, plus possible access to as much as $400 million in Export-Import Bank credits to finance civilian development exports to European Portugal. Many Americans, and not only blacks, wince at any American involvement with the anachronistic colonial regime in Lisbon, even for an ostensible purpose — NATO defense—which has no immediate connection with Africa. The administration, however, added injury to insult by lumping aid and credits into the base-renewal deal. The inevitable if not the intended result was to convey an impression of American endorsement of overall Portuguese policy-an impression, we might add, which Lisbon has avidly spread.
The Nixon administration's tendency to put more weight on United States economic interests and less on political questions, in its dealings with white minority governments in Africa, has been apparent for some time. Senator Case's bill assures the Congress an opportunity to make its own judgment on this matter.
(From the Philadelphia Inquirer, April 10, 1972)
TREATIES BY ANOTHER NAME
Sen. Clifford Case concedes his amendment to cut off aid to Portugal and Bihrain is somewhat more "drastic" than he would like it to be. It is also justified, however, if the Senate is to reassert its constitutional role in foreign affairs.
The New Jersey Republican's aim is to compel the Nixon Administration to submit two recently concluded executive agreements-one extending U.S. base rights in the Azores, the other continuing an American naval presence in the Persian Gulf-to the Senate as treaties.
Such was the sense of the Senate when, last March, by a vote of 50–6, it approved a resolution along those lines. But the resolution was not binding, and the administration refused to be bound by it.
The administration's position, which has ample precedent to support it, is that executive agreements are not treaties, which under the Constitution cannot go into effect with out the approval of two-thirds of senators present on the floor.
But a treaty of another name is still a treaty-a pact entered into by the President in the name of the United States, and it may commit the nation even to war.
So the issue is not merely a matter of nomenclature or precedent-not merely, even the merits of the arrangements with Portugal and Bahrain.
The State Department explains that the agreements involve neither new policy nor new commitments. That may or may not be so, but how can the Senate find out if the agreements are not submitted to it, and why-even if the poliey and commitments are old-should it not have an opportunity to make its own judgment anew?
Increasingly, over the past 40 years, Presidents have resorted to executive agreements to bypass the Senate. Sen. Case has also introduced a bill to require all executive agreements to be sent to Congress within 60 days. The issue there is the same as in the war powers bill which is also before the Senate.
It is, in Sen. Case's words, "a fundamental constitutional question" of whether the Congress is to exercise the co-equal status which the framers of the Constitution granted it. And one way to do so is by Congress' exercising its own constitutional power of the purse.
(From the Long Island Newsday, April 6, 1972)
WAR AND PEACE POWERS
Modern Presidents tend to do what they want to do with the nation's blood and treasure, with only the slightest nod in the direction of Congress, and with out waiting for much of a nod in return. No one could foresee that the inade. quately explained and virtually unchallenged Tonkin Gulf Resolution of 1964 would plunge us into an Asian war with both feet, and with no map showing us the way out. Many pieces of trivial legislation have received far more scru. tiny. That bill gave the White House a pretext for continuing to usurp the war-making powers that properly belong to the people's elected representatives on Capitol Hill where the framers of the Constitution put them.
Congress must take much of the blame for letting that happen. It has the chance now to reclaim some of the authority assigned to it by the Constitution. Through legislation written principally by Sen. Jacob Javits (R. N.Y.). the President would be authorized to employ the armed forces only in certain specified emergencies, and for no longer than 30 days without congressional approval. These emergencies include an attack upon the United States, or its forces, or the threat of such attacks, or to protect American citizens being evacuated from foreign countries.
The Nixon administration argues that the bill infringes on the President's powers as commander-in-chief. Sen. Javits and other supporters say the bill leaves the President plenty of latitude to act, but it will prompt him to exercise more appropriate caution, prudence and precision than the White House. under three Presidents, has displayed in its past management of the Indochina wars.
The Javits bill would reinforce the basic law of the land, which requires the collective judgment of the President and Congress to go to war. It can't create national wisdom where there is none, but it can require collaboration by two branches of government on the life and death questions of war and peace.
Less crucial but also important to the national interest is collaboration in foreign affairs, where the White House has been by-passing the treaty-making powers of the Senate. Although the Senate already has approved overwhelmingly a resolution by Sen. Clifford Case (D-N.J.) that agreements negotiated by the White House with Portugal and Bahrain be submitted for consideration as treaties, the resolution was not binding and President Nixon chose to ignore it. Now, Case is going to the mat with the administration on this issue. He's asking that all assistance to those countries be withheld until the Senate receives the agreements in treaty form,
Case's tactic is welcome on several counts. The five-year agreement with Portugal for use of air and naval bases in the Azores is questionable militarily and counter-productive politically. It is a slap in the face of black Africa, where it will be regarded as a $436,000,000 subsidy to Portugal to maintain a repressive colonial policy.
The confrontation provoked by Sen. Case will determine whether congressional power over the purse strings can effectively bring back to Capitol Hill some of the constitutional authority it unfortunately has let slip away.
STATEMENT BY SENATOR CASE ON His PORTUGAL BAHRAIN RESOLUTION
Mr. President, it has become apparent that the overwhelming majority of the Senate favors the reestablishment of the Congressional role in the making of foreign policy.
Several weeks ago this body voted 81-0 in favor of my bill which requires the Executive Branch to submit copies of all executive agreements to the Congress within 60 days of their conclusion. The Administration had opposed this legislation on the grounds that informal arrangements could be worked out to accomplish the same ends. The Senate unanimously disagreed.
Similarly, the Senate will soon be voting on a bill which will define and limit the President's war powers. A consensus has clearly developed on this matter among Senators of varying ideological persuasions, as the co-sponsorship of Senators Javits, Stennis, Eagleton, and Spong indicates. I am confident that a large majority of the Senate will vote for a war powers bill, again because of the need to reestablish the Constitutional responsibility of the Congress in the national security area.
The two bills I have mentioned deal with the broad institutional structure of American foreign policy. Today we come down to the specific.
The question before us is whether, without the advice and consent of the Senate, the United States should enter into major agreements with the governments of Portugal and Bahrain.
The Constitution is explicit in requiring the advice and consent of the Senate before a treaty can be entered into force. The Constitution does not define the term "treaty". Yet, it seems clear that the Founding Fathers intended any agreement with a foreign country on a matter of substance to be embraced within the term. Certainly they did not intend that the President would be required to get Senate approval only of routine minor agreements with other nations.
Yet the practice has grown up within successive administrations to use the device of executive agreements to settle international matters of great importance.
Particularly in the post-World War II era the treaty making process has steadily declined in importance. Successive administrations have found it expedient to use the device of the executive agreement to put into effect pacts that fundamentally affected the national security of the United States. We have heard it said that since it feared that Senate approval might not be forthcoming for a particular deal, the administration in power did not choose to use the treaty process. We have heard that some agreements were simply too sensitive to be debated in the halls of Congress. We have heard that foreign governments did not want their relations with the United States discussed publicly.
Any of these arguments may have validity in terms of short range political expediency. They are not valid in our Constitutional system of law.
In testimony in favor of the resolution before us Senator Harry Byrd put the question into perspective:
“I believe that important principles are involved in this resolution, principles concerning the American system of checks and balances and the constitutional role of the Senate in foreign policy.
“The issue as I understand it is where should the line be drawn as to whether agreements with foreign nations should be executive agreement which does not require Senate action or by treaty which does require Senate approval. “I am frank to say that I find difficulty in delineating a precise formula. *Some issues are clear cut others are borderline.