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"The agreements governing U.S. bases in the Azores and Bahrain possibly fall in the latter category. But in my view the doubt should be resolved in favor of the legislative process.”
I agree with Senator Byrd. The agreements with Portugal and Bahrain are simply too important to be left to an exchange of diplomatic notes.
The resolution I have introduced concerns two recent agreements entered into by the Executive Branch without the use of the treaty-making process. The first was with Portugal. It provided for continued American use of military bases in the Azores in return for the United States providing Portugal with about $435 million in credits and assistance. The second was an agreement with Bahrain for the establishment of an American military base in that country.
Both these agreements represent significant foreign policy moves. They both involve the stationing of American military forces abroad. As we have learned in the past this can lead ultimately to war.
In the case of Portugal we would be furnishing large amounts of assistance to a country which is presently involved in three separate colonial wars in Africa. Despite our ties to Portugal through the NATO Alliance, our Government has imposed an embargo on shipments of arms to Portugal for use in Africa. Many Americans have raised the question-and I am among them—whether providing such large amounts of assistance to Portugal would not be contrary to the stated U.S. Government position of supporting self-determination for the peoples living in Portugal's colonies.
The Bahrain agreement is significant in that it provides for a permanent American base in an area where we have never before had our own installation. Despite a State Department spokesman's statement that "all we are doing is changing landlords" the establishment of an American base in a foreign country is a very serious matter. Moreover a base in the Persian Gulf could potentially entangle us in the bitter dispute now raging among Iran, Iraq, Saudi Arabia, and several other states over territorial claims. The recent Iranian occupation of islands at the mouth of the Persian Gulf only points up the volatility of that part of the world. The Shah of Iran has n gone on public record in opposition to our presence in Bahrain.
If these agreements with Portugal and Bahrain are not important enough to be considered treaties then just what is a treaty?
I fully realize that the Administration claims there is no need for a treaty with Portugal on the Azores bases. In hearings before the Foreign Relations Committee Under Secretary of State Johnson said that in effect the Senate lost its right to pass on future agreements with Portugal when it approved the NATO treaty 23 years ago. The State Department reasoned that the new agreement with Portugal is authorized under the implementing provisions of the NATO treaty. In the case of Bahrain there is no previous treaty but the lack of Senate participation is justified by the fact we had earlier used the facilities on an informal basis and that the number of American personnel involved is comparatively small. I do not find the Department's arguments persuasive in either case.
I think it is only fair to say that much of the blame for the reduced state to which the Senate has come in this matter of agreements with foreign countries rightly belongs to the Senate itself. We have acquiesced for many years in the increasing encroachments made on our Constitutional responsibilities by the Executive Branch. To a considerable degree also this tendency was encouraged by the substantial weight of academic opinion. I am happy to say that the sentiment in both these areas seems to have changed in recent years.
More and more students of government and international affairs have made clear their concern at the aggrandizement of the Presidency and the diminution of Congress. And within the Senate itself there is increasing sentiment for the reassertion of our proper functions and the reassumption of our Constitutional responsibilities.
Twenty-nine Senators have joined as co-sponsors of my resolution. I appreciate their support.
Now I urge the Senate as a whole to approve this measure which represents another step in the reassertion of the Senate's powers in the making of foreign policy.
(From the Congressional Record, vol. 118, No. 56, April 11, 1972)
s. 3475 By Mr. ERVIN:
S. 3475. A bill to help preserve the separation of powers and to further the constitutional prerogatives of Congress by providing for congressional review of executive agreements. Referred, by unanimous consent, to the Committee on the Judiciary, and then to the Committee on Foreign Relations, if and when reported by the Committee on the Judiciary.
THE ROLE OF THE CONGRESS IN THE MAKING OF EXECUTIVE AGREEMENTS
Jr. Ervin. Mr. President, today I introduce a bill which will help restore the balance of power between the executive and legislative branches of the Government in the area of international agreements made with foreign nations on behalf of the United States.
Because of the momentous separation of powers problems in this area, I should like to request that this measure be referred to the Senate Judiciary Committee where its Subcommittee on Separation of Powers will be afforded an opportunity to give a careful and definitive examination of the powers, duties, and prerogatives of the two branches of the Government in he area of international agreements.
In recent years, so-called executive agreements have been utilized time and time again in situations where many legal scholars believe that the treaty provisions of section 2, article II of the Constitution should have been followed. The Founding Fathers were, indeed, wise when they formulated the concept of shared powers between the legislative and executive branches of the Govern. ment in the making of international agreements. These learned men mentioned only one kind of international agreement in the Constitution: The treaty. From their bitter experience with tyrannical rule, they realized that a system of government serves the people best when its powers are disbursed among various repositories within the government. They were acutely aware that unrestrained Executive power leads to despotism, and for that reason they attempted to make certain that the Congress, as the most direct representative of the people, would play a role in the making of international agreements. To my mind, this bedrock principle is no less important in this era of rapid change and computerization than it was in the simpler times when our Constitution was written.
The bill I introduce is simple. It recognizes that the Founding Fathers' concept of shared powers in the area of international agreements has been substantially eroded by the use of so-called Executive agreements. In plain language, the measure defines Executive agreements and requires that the Secretary of Stae shall transmit each such agreement to both Houses of Congress. If, in the opinion of the President, the disclosure of any such agreement would be prejudicial to the security of the United Staes, the bill provides that it shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the Hosse of Representatives under an appropriate injunction of secrecy. Under this injunction of secrecy only the Members of both Houses of the Congress shall be permitted to inspect the document.
The bill further provides that each Executive agreement transmitted to Congress shall come into force and be made effective after 60 days—or later it the agreement so provides—unless both Houses pass a concurrent resolution expressing disapproval of the Executive agreement between the date it is transmitted to the Congress and the end of a 60-day period. In other words, the Congress, in its shared-power role, will have an opportunity to state that it does not approve of an Executive agreement during the 60-day period after the agreement is transmitted to the Congress.
To many, this measure may see rather strict in its provisions: however, it appears to me that the executive branch of the Government would welcome a method whereby the Congress would share the responsibility for making international agreements which affect the international image of our Nation and its people, the allocation of our tax resources, and, in many instances, impinges upon the possibilities of achieving peace in the world.
In the very near future, the Subcommittee on Separation of Powers will begin hearings on the complex subject of Executive agreements as distinguished from treaties. It is my hope that these hearings will afford the Congress a basis for determining the sort of so-called Executive agreement which, under the provisions of the Constitution, should be submitted to the Congress for its approval and that this measure will provide a focal point for the many views which will be expressed before the subcommittee.
Mr. President, I ask unanimous consent that the bill be referred to the Committee on the Judiciary, with the understanding that after that committee has completed its consideration of the bill, it then be referred to the Committee on Foreign Relations; and I would like to assure the Senate and the Chair that I have consulted with the distinguished chairman of the Committee on Foreign Relations (Mr. FULBRIGHT) and he agrees to this unanimous-consent request as to the reference of the bill.
The PRESIDING OFFICER. Is there objection?
Mr. Ervin. It was that this bill, which deals with Executive agreements, shall be referred initially to the Committee on the Judiciary, and that after the Committee on the Judiciary has completed its consideration of the bill, it then be referred to the Committee on Foreign Relations. I assure the Senator from New York that I have consulted with the distinguished chairman of the Committee on Foreign Relations, and he has agreed to this reference.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. Ervin. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record at this point.
There being no objection, the bill was ordered to be printed in the RECORD, as follows:
S. 3475 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, Whereas, the Constitution of the United States established a system of shared powers between the legislative and executive branches of the United Staes Government in the making of international agreements; and whereas, the Congress finds that its powers have been substantially eroded by the use of so-called executive agreements, and the Senate is thereby prevented from performing its duties under section 2. Article II, of the Constitution, which provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur,” and, whereas, the Congress is often prevented from participating in the conduct of foreign relations by way of prior statute or concurrent resolution, therefore be it enacted as follows:
SECTION 1. (a) In furtherance of the provisions of the United States Constitution regarding the sharing of powers in the making of international agreements, any executive agreement made on or after the date of enactment of this Act shall be transmitted to the Secretary of State, who shall then transmit that agreement (bearing an identification number) to the Congress. However, any such agreement the immediate disclosure of which would, in the opinion of the President, be prejudicial to the security of the United States shall instead be transmitted by the Secretary to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate written injunction of secrecy to be removed only upon due notice from the President. Each committee shall personally notify the members of its House that the Secretary has transmitted such an agreement with an injunction of secrecy, and such agreement shall thereafter be available for inspection only by such members.
(b) Except as otherwise provided under subsection (d) of this section, any such executive agreement shall come into force with respect to the United States at the end of the first period of 60 calendar days of continuous session of Congress after the date on which the executive agreement is transmitted to Congress or such committees, as the case may be, unless, between the date of transmittal and the end of the 60-day period, both Houses pass a concurrent resolution stating in substance that both houses do not approve the executive agreement.
(c) For the purpose of subsection (b) of this section
(1) continuity of session is broken only by an adjournment of Congress sine die; and
(2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.
(d) Under provisions contained in an executive agreement, the agreement may come into force at a time later than the date on which the agreement comes into force under subsections (b) and (c) of this section.
SEC. 2. For purposes of this Act, the term "executive agreement" means any bilateral or multilateral international agreement or commitment, other than a treaty, which is binding upon the United States, and which is made by the President or any officer, employee or representative of the executive branch of the United States Government.
Sec. 3. (a) This section is enacted by Congress
(1) as an exercise of the rule-making power of the Senate and the House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of concurrent resolutions described by subsection (b) of this section; and it supersedes other rules only to the extent that they are inconsistent therewith; and
(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.
(b) For the purposes of this section, "concurrent resolution” means only a concurrent resolution of either House of Congress, the matter after the resolying clause of which is as follows: "That the Congress does not approve the executive agreement numbered- -transmitted to (Congress) (the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives) by the President on
19—", the blank spaces threin being appropriately filled, and the appropriate words within one of the parenthetical phrases being used; but does not include a concurrent resolution which specifies more than one executive agreement.
(C) A concurrent resolution with respect to an executive agreement shall be referred to a committee (and all concurrent resolutions with respect to the same executive agreement shall be referred to the same committee) by the President of the Senate or the Speaker of the House of Representatives as the case may be.
(d) (1) If the committee to which a concurrent resolution with respect to an executive agreement has been referred has not reported it at the end of 20 calendar days after its introduction, it is in order to move either to discharge the committee from further consideration of the concurrent resolution or to discharge the committee from further consideration of any other concurrent resolution with respect to the executive agreement which has been referred to the committee.
(2) A motion to discharge may be made only by an individual favoring the concurrent resolution, is highly privileged (except that it may not be made after the committee has reported a concurrent resolution with respect to the same executive agreement), and debate thereon shall be limited to not more than 1 hour, to be divided equally between those favoring and those opposing the resolution. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.
(3) If the motion to discharge is agreed to or disagreed to, the motion may not be renewed, nor may another motion to discharge the committee be made with respect to any other concurrent resolution with respect to the same executive agreement.
(e) (1) When the committee has reported, or has been discharged from further consideration of, a concurrent resolution with respect to an executive agreement, it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.
(2) Debate on the concurrent resolution shall be limited to not more than 10 hours, which shall be divided equally between those, favoring and those opposing the resolution. A motion further to limit debate is not debatable. An
amendment to, or motion to recommit, the concurrent resolution is not in order, and it is not in order to move to reconsider the vote by which the concurrent resolution is agreed to or disagreed to.
(f) (1) Motions to postpone, made with respect to the discharge from committee, or the consideration of a concurrent resolution with respect to an agreement, and motions to proceed to the consideration of other business, shall be decided without debate.
(2) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a concurrent resolution with respect to an executive agreement shall be decided without debate.
(From the Congressional Record, vol. 115, No. 105, June 25, 1969)
PROCEEDINGS AND DEBATE OF THE 91st CONGRESS, SECOND SESSION
A resolution (S. Res. 85) expressing the sense of the Senate relative to commitments to foreign powers.
Mr. ERVIN. Mr. President, Senate Resolution 85, the so-called national commitments resolution, signifies what hopefully may be an important watershed in our Nation's constitutional history. The resolution is evidence of the fact that the Senate has once again become alert to its responsibilities in the field of foreign affairs. This resolution is a declaration that the Senate henceforth will insist upon its constitutional prerogatives. And it is a promise to the American people that the Senate intends to discharge its obligations as the representative of the people's voice in the making of foreign policy. As such, i support the resolution wholeheartedly, and urge its adoption.
While I support the resolution and commend the efforts of the junior Senator from Arkansas in bringing it forth, I cannot help observing that it is un. fortunate that such a declaration by the Senate has become necessary. The resolution is testimony to the fact that over the courese of the past 50 years. and especially since World War II, the power to make foreign policy has shifted almost entirely to the President. This trend has gone so far that a theory has developed that the making of foreign policy is solely the president's prerogative. This view is held by a large segment of the Nation's political scientists. It is shared by much of the public and, needless to say, it is force fully espoused by the executive branch as well.
Under this theory, Congress is considered to be little more than a rubber stamp of the executive branch. The functions of Congress is to approve what the Executive does in foreign affairs, to appropriate the money it seeks with out question or cavil, and to give its automatic consent and the support to whatever policy comes from the executive branch. As the foremost advocate of this theory, the Department of State often makes little effort to hide its belief that foreign policy is much too important and much too complicated to be left to the untutored mercies of mere Senators and Representatives. In its view, foreign affairs must be exclusively the concern of experts, of which class, the Department considers itself the epitome. The Department and those who share its views make the common mistake of the confusing information for knowl. edge and knowledge for wisdom. They are ignorant of that definition which is singularly appropriate in this context—that an expert is one who knows about nothing.
This feeling that the Senate intrudes upon the President's constitutional duties when it seeks to participate in the formulation of foreign policy reflects a state of affairs which has existed for some time. It is not a happy moment when the Senate must in a resolution declare that foreign policy is a product of "action taken by the executive and legislative branches of the U.S. Goveru. ment." This is clear from the plain words of the Constitution. Unfortunatels, because of the abdicatcon of its constitutional responsibilities over the past decades, the point has now been reached when the Senate must try to regain —first symbolically, as by the adoption of the resolution and then in practice, its coequal role in the formulation of foreign policy.
The present low state of the Senate's power in the field of foreign polies was forcefully brought home to me during hearings conducted by the Subcom