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affirmative action taken by the executive and legislative branches of the U.S. Government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment.

The resolution (S. Res. 151) was received and referred to the Committee on Foreign Relations.

Mr. FULBRIGHT. Mr. President, I rise to speak on one aspect of the mounting problem created by the gradual erosion of the role of the Congress, and partie ularly of the Senate, in the determination of national security policy. And I intend to suggest to my colleagues a course of action which, although modest in scope, could constitute a first step toward arresting a trend of events injurious to the best interests of our country.

There is no need at this time to rehearse all the evidence in support of the view, held by most if all Members of this body, that the authority of Congress in many respects has been dwindling throughout the years since our entry into the Second World War. The very existence of the Special Subcommittee on Separation of Powers, chaired by the distinguished senior Senator from North Carolina [Mr. ERVIN], currently attests to the concern felt by Senators on this score. In no area is the constitutional imbalance more striking and more alarming than in the field of foreign policy. As a result of the kind invitation of Senator ERVIN, on July 19, I gave to his subcommittee a rather lengthy statement, entitled "Congress and Foreign Policy," which I hope helped define the dimensions of the problem; I shall ask that the statement appear in the RECORD to follow and give more substance to these remarks.

Because the overall subject of the constitutional role of the Congress in both national and international affairs is now being scrutinized under such distinguished auspices, it would be neither wise nor proper at this time to prejudge the findings and offer recommendations applying to the whole field of inquiry. However, I believe that one facet of the problem in the foreign policy sphere can and should be singled out for prompt attention and action. I refer to the question of what constitutes a "national commitment" and I offer herewith a resolution stating simply that the term "national commitment" is understood to result from nothing less than formal action taken by the legislative and executive branches under established constitutional procedures.

A commitment thus defined engages the honor of the Nation in support of a specific undertaking. Obviously, such a process and such a result should neither be invoked frequently nor arrived at lightly. And yet over the years we have found ourselves confronted with multiplying calls for swift and decisive action to be taken on the basis of alleged "national commitments." Admittedly, many of these cries for action have come from nonofficial sources. But all too often over a long period the executive branch has indeed acted and then sought to justify its intervention by dubious references to equally dubious prior commitments.

These so-called "prior commitments" often turn out to be statements previously made by someone saying that we pledge ourselves to some undertaking. Much of the difficulty here, I believe, stems from a lack of precise thought and language, rather than from any malign intent or influences. Even so, the possible consequences of involvement in combustible situations abroad in this day and age are too dangerous to permit any use of military power on the casual assumption that the Nation is committed to act. Neither should we allow the honor of this country, which is at stake in its commitments, to be cheapened through constant and careless references to its involvement in specific situations.

We in governmental life frequently err by refusing to define our terms and by falling back on cliches which really have not been examined in years. In the field of foreign policy certain phrases reasonably descriptive of the world situation two decades ago are being used almost ritualistically without reappraisal of their relevance to current conditions. Other phrases have been so affected by constant misuse that their original meaning to the American publie has been either twisted or entirely lost. The term "national commitment" clearly seems to have fallen into that latter category. In speaking today I am trying to recover and refurbish its original and true meaning from the cloud of confusion which has been created in large measure over the past two or three decades through the increasing conduct of foreign policy by executive agreement.

This resolution in no way tries to interfere with the day-to-day conduct of our foreign affairs. It does not attempt to restrict the constitutional responsi

bility and power of the President or to revoke any past decisions. It does not respond to any current crisis situation abroad, and it is not a measure directed against any single administration in this century-or against anyone at

all.

In its essence, this resolution represents a conservative position which seeks to recover in some degree the constitutional role of the Senate in the making of foreign policy-a role which the Senate itself has permitted to be obscurred and diminished over the years. Just as we do not blame external forces for that cumulative loss of our traditional authority, I suggest to my colleagues that we will have only ourselves to blame if we do not reaffirm the power and responsibility given to this body by the framers of our Constitution.

Mr. President, I ask unanimous consent to have printed in the RECORD my statement of July 19 entitled "Congress and Foreign Policy," given before the Subcommittee on Separation of Powers of the Judiciary Committee of the Senate.

There being no objection, the statement was ordered to be printed in the RECORD, as follows:

CONGRESS AND FOREIGN POLICY

(Statement of Senator J. W. FULBRIGHT before the Subcommittee on Separation of Powers of the Judiciary Committee, July 19, 1967)

In a statement to the Senate Preparedness Subcommittee on August 25, 1966, Secretary of State Rusk said: "No would-be agressor should suppose that the absence of a defense treaty, Congressional declaration or U.S. military presence grants immunity to aggression." The statement conveys a significant message to any potential aggressor: that under no circumstances could it count on American inaction in the event of an act of aggression. The statement conveys an implicit but no less significant message to the Congress: that, regardless of any action or inaction, approval or disapproval, of any foreign commitment on the part of the Congress, the executive would act as it saw fit in response to any occurrence abroad which it judged to be an act of aggression. It is unlikely that the Secretary consciously intended to assert that Congressional action was irrelevant to American military commitments abroad; it seems more likely that this was merely assumed, taken for granted as a truism of American foreign policy in the 1960's.

I. THE CONSTITUTIONAL IMBALANCE

The authority of Congress in foreign policy has been eroding steadily since 1940, the year of America's emergence as a major and permanent participant in world affairs, and the erosion has created a significant constitutional imbalance. Many if not most of the major decisions of American foreign policy in this era have been executive decisions. Roosevelt's destroyer deal of 1940, for example, under which 50 American ships were given to Great Britain in her hour of peril in exchange for naval bases in the Western Hemisphere, was concluded by executive agreement, ignoring both the treaty power of the Senate and the war power of the Congress, despite the fact that it was a commitment of the greatest importance, an act in violation of the international law of neutrality, an act which, according to Churchill, gave Germany legal cause to declare war on the United States. The major wartime agreements-Quebec, Tehran, Yalta and Potsdam-which, as it turned out, were to form the de facto settlement of World War II, were all reached without the formal consent of the Congress. Since World War II the United States has fought two wars without benefit of Congressional declaration and has engaged in numerous small-scale military activities-in the Middle East, for example, in 1958, and in the Congo on several occasions-without meaningful consultation with the Congress.

New devices have been invented which have the appearance but not the reality of Congressional participation in the making of foreign policy. I shall elaborate on these later in my statement and wish at this point only to identify them. One is the joint resolution; another is the Congressional briefing session. Neither is a satisfactory occasion for deliberation or the rendering of advice; both are designed to win consent without advice. Their principal purpose is put the Congress on record in support of some emergency action at a moment when it would be most difficult to withhold support and, therefore, to spare the executive subsequent controversy or embarrassment.

The cause of the constitutional imbalance is crisis. I do not believe that the executive has willfully usurped the constitutional authority of the Congress; nor do I believe that the Congress has knowingly given away its traditional authority, although some of its members-I among them, I regret to say-have sometimes shown excessive regard for executive freedom of action. In the main, however, it has been circumstance rather than design which has given the executive its great predominance in foreign policy. The circumstance has been crisis, an entire era of crisis in which urgent decisions have been required again and again decisions of a kind that the Congress is ill-equipped to make with what has been thought to be the requisite speed. The President has the means at his disposal for prompt action; the Congress does not. When the security of the country is endangered, or thought to be endangered, there is a powerful premium on prompt action, and that means executive action. (I might add that I think there have been many occasions when the need of immediate action has been exaggerated, resulting in mistakes which might have been avoided by greater deliberation.)

The question before us is whether and how the constitutional balance can be restored, whether and how the Senate can discharge its duty of advice and consent under continuing conditions of crisis. It is improbable that we will soon return to a kind of normalcy in the world, and impossible that the United States will return to its pre-1949 isolation. How then can we in the Congress do what the Constitution does not simply ask of us, but positively requires of us, under precisely the conditions which have resulted in the erosion of our authority? It is not likely that the President, beset as he is with crisis and set upon by conflicting pressures and interests, will take the initiative in curtailing his own freedom of action and restoring Congressional prerogative -that would be too much to expect of him. It is up to the Congress, acting on the well-proven axiom that the Lord helps those who help themselves, to reevaluate its role and to re-examine its proper responsibilities.

I have the feeling-only a feeling, not yet a conviction-that constitutional change is in the making. It is too soon to tell, but there are signs in the Congress, particularly in the Senate, of a growing awareness of the loss of Congressional power, of growing uneasiness over the extent of executive power, and of a growing willingness to raise questions that a year or so ago might have gone unasked, to challenge decisions that would have gone unchallenged, and to try to distinguish between real emergencies and situations which, for reasons of executive convenience, are only said to be emergencies.

Prior to redefining our responsibilities, it is important for us to distinguish clearly between two kinds of power, that pertaining to the shaping of foreign policy, to its direction and purpose and philosophy, and that pertaining to the day-to-day conduct of foreign policy. The former is the power which the Congress has the duty to discharge, diligently, vigorously and continuously; the latter, by and large calling for specialized skills, is best left to the executive and its administrative arms. The distinction of course is clearer in concept than in reality, and it is hardly possible to participate in the shaping of policy without influencing the way in which it is conducted. Nonetheless, we in the Congress must keep the distinction in mind, acting, to the best of our ability, with energy in matters of national purpose and with restraint in matters of administrative detail.

Our performance in recent years has, unfortunately, been closer to the reverse. We have tended to snoop and pry in matters of detail, interfering in the handling of specific problems in specific places which we happen to chance upon, and, worse still, harassing individuals in the executive departments, thereby undermining their morale and discouraging the creative initiative which is so essential to a successful foreign policy. At the same time we have resigned from our responsibility in the shaping of policy and the defining of its purposes, submitting too easily to the pressures of crisis, giving away things that are not ours to give; the war power of the Congress, the treaty power of the Senate and the broader advice and consent power.

II. THE LEGISLATIVE FUNCTION

Insofar as the Congressional role in foreign policy is discharged through the formal legislative process, the Congress by and large has been able to meet its responsibilities. Unfortunately, however, the area of foreign policy requiring formal legislative action has diminished greatly in recent decades and now

contains virtually none of the major questions of war and peace in the nuclear age. Before turning to these critical questions, which go the heart of the current constitutional crisis a word is in order about the limited areas of foreign policy which are still governed by the legislative process.

Foreign aid provides the closest thing we have to an annual occasion for a general review of American foreign policy. It provides the opportunity for airing grievances, some having to do with economic development, most of them not, and for the discussion of matters of detail which in many cases would be better left to specialists in the field. It also provides the occasion for a discussion of more fundamental questions, pertaining to America's role in the world, to the areas that fall within and those which exceed its proper responsibilities. In the last few years the Congress has shown a clear disposition to limit those responsibilities and has written appropriate restrictions, mostly hortatory, into the foreign aid legislation. Only as it has become clear that the executive is disinclined to comply with many of our recommendations has it been found necessary to write binding restrictions into the law. These mandatory restrictions, it is true, impose a degree of rigidity on the executive and constitute a regrettable Congressional incursion on matters of the day-to-day conduct of policy. Here, however, we encounter the overlap in practice between the shaping and conduct of policy and, in order to exert our influence on the one, where it is desirable, we have also had to exert it on the other, where it is not. Were the executive more responsive to our general recommendations--as expressed in committee reports, conditional proscriptions, and general legislative history-it would be possible for us to be more restrained in our specific restrictions.

The matter, at its heart, is one of trust and confidence and of respect of each branch of the government for the prerogatives of the other. When the executive tends to ignore Congressional recommendations, intruding thereby on Congressional prerogative, the result is either a counter-intrusion or the acceptance by the Congress of the loss of its prerogatives. Thus, for example, the persistent refusal of the executive to comply even approximately with Congressional recommendations that it limit the number of countries receiving American foreign aid has caused the Foreign Relations Committee to write numbers into its current bill, proposing thereby to make recommendations into requirements. The price of the flexibility which is valued by the executive is, or certainly ought to be, a high degree of compliance with the intent of Congress.

There are occasions when the legislative process works almost as it ideally should, permitting of the rendering of advice and consent on the matter at hand and also of the formation and expression of the Senate's view on some broader question of the direction of our foreign policy. Such was the case with the test ban treaty in 1963. In the course of three weeks of public hearings and subsequent debate on the floor, the Senate assured itself of the safety of the proposed commitment from a military point of view and at the same time gave its endorsement to the broader policy which has come to be known as "building bridges" to the east. Similarly, the ratification earlier this year of the Soviet consular treaty, which, but for an unexpected controversy might have been treated as routine business, became instead the occasion for a further Senate endorsement of the bridge building policy.

III. ADVICE AND CONSENT

The focus of the current constitutional problem-one might even say crisis -lies outside of the legislative process, in the great problems of war and peace in the nuclear age. It is in this most critical area of our foreign relations that the Senate, with its own tacit consent, has become largely impotent. The point is best illustrated by concrete examples. Permit me to recall some recent crises and the extremely limited role of the Senate in dealing with them :

At the time of the Cuban missile crisis in October 1962, many of us were in our home states campaigning for re-election. On the basis of press reports and rumors we had a fairly accurate picture of what was happening, but none of us, so far as I know, were given official information until after the Administration had made its policy decisions. President Kennedy called the Congressional leadership back for a meeting at the White House on Monday, October 22, 1962. The meeting lasted from about 5 p.m. to about 6 p.m.; 7 p.m. Presi

dent Kennedy went on national television to announce to the country the decisions which had of course been made before the Congressional leadership were called in. The meeting was not a consultation but a briefing, a kind of courtesy or ceremonial occasion for the leadership of the Congress. At that meeting, the senior Senator from Georgia and I made specific suggestions as to how the crisis might be met; we did so in the belief that we had a responsibility to give the President our best advice on the basis of the limited facts then at our command. With apparent reference to our temerity in expressing our views, Theodore Sorensen in his book on President Kennedy described this occasion as "the only sour note" in an otherwise flawless process of decision making. It is no exaggeration to say that on the one occasion when the world has gone to the very brink of nuclear war-as indeed on the earlier occasion of the Bay of Pigs-the Congress took no part whatever in the shaping of American policy.

The Dominican intervention of April 1965 was decided upon what a comparable lack of Congressional consultation. Again, the leadership were summoned to the White House, on the afternoon of April 28, 1965, and told that the Marines would be landed in Santo Domingo that night for the express purpose of protecting the lives of American citizens. No one expressed disapproval. Had I known that the real purpose of our intervention was the defeat of the Dominican revolution, as subsequently because clear in the course of extensive hearings before the Senate Foreign Relations Committee, I would most certainly have objected to massive American military intervention.

When, in the wake of the Dominican hearings, I publicly stated my criticisms of American policy, there followed a debate not on the substances of my criticisms but on the appropriateness of my having made them. The question therefore became one of the proper extent and the proper limits on public discussion of controversial matters of foreign policy. The word "consensus" was then in vogue and so extensive had its influence become that there seemed at the time to be a general conviction that any fundamental criticism of American foreign policy was irresponsible if not actually unpatriotic. This was the first of many occasions on which no one questioned the right of dissent but many people had something to say about special circumstances making its use inappropriate. No one, it seems, ever questions the right of dissent; it is the use of it that is objected to.

I tried at the time of Dominican controversy to formulate my thoughts on Senatorial responsibility in foreign policy. I recall them here not for purposes of reviving the discussion of those unhappy events but in the hope of contributing to the work of this Subcommittee. I expressed these thoughts in a letter to President Johnson, dated September 16, 1965, and accompanying the speech on the Dominican Republic which I made that day. The letter read in part:

"DEAR MR. PRESIDENT: Enclosed is a copy of a speech that I plan to make in the Senate regarding the crisis in the Dominican Republic. As you know, my Committee has held extensive hearings on the Dominican matter; this speech contains my personal comments and conclusions on the information which was brought forth in the hearings.

"As you will note, I believe that important mistakes were made. I further believe that a public discussion of recent events in the Dominican Republic, even though it brings forth viewpoints which are critical of actions taken by your Administration, will be of long-term benefit in correcting past errors, helping to prevent their repetition in the future, and thereby advancing the broader purposes of your policy in Latin America. It is in the hope of assisting you toward these ends, and for this reason only that I have prepared my remarks.

"Public-and, I trust, constructive criticism is one of the services that a Senator is uniquely able to perform. There are many things that members of your Administration, for quite proper reasons of consistency and organization, cannot say, even though it is in the long term interests of the Administration that they be said. A Senator, as you well know, is under no such restriction. It is in the sincere hope of assisting your Administration in this way, and of advancing the objectives of your policy in Latin America, that I offer the enclosed remarks."

I developed these thoughts further in a speech in the Senate on October 22, 1965. It read in part:

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