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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.

Mr. 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 Bahrain 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 can

not 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 policy 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 without waiting for much of a nod in return. No one could foresee that the inadequately 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 scrutiny. 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.

"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 agree ment 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 now 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]

By Mr. ERVIN :

s. 3475

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

Mr. 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 the 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 Government 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 if 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 distin

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