At present, the Committee on Foreign Relations has copies of the two backgrounders in question, both of which bear a "confidential" security classification. It is impossible to justify any such classification, however, in view of the fact that documents in question are a record of conversations between public officials no longer in office and members of the press representing the public. This situation should be corrected at the same time the minutes are released. In this way the public will be able to gain a full understanding of what its responsibilities thought was was being "understood" in October, 1968, In calling upon the Executive Branch to take these actions, we are not prejudging any of the issues involved, implying any criticism of the manner in which the 1968 discussions were handled, or the manner in which they are now being interpreted. Rather we are pursuing the fundamental right of the Congress to know the facts, so they in turn can participate in an informed manner in the formulation of policies which profoundly affect the security and welfare of this nation. DEPARTMENT OF STATE, Washington, D.C., April 10, 1972. Hon. SAM J. ERVIN, JR., DEAR MR. CHAIRMAN: I refer to your letter of March 10, 1972, requesting an updating of the analysis embodied in the compilation entitled "International Agreements Other Than Treaties 1946-1968: A List With Citations of Their Legal Bases" which was prepared in the office of The Legal Adviser in response to your request. In the acknowledgment addressed to you by the Acting Legal Adviser, Mr. Carl F. Salans, on March 17, 1972, you were informed that the research necessary to assemble the information desired was being conducted and that the information would be sent to you at the earliest possible time. I enclose an Addendum to the above-mentioned compilation to cover the period to April 1972. Please continue to call on us whenever you believe we might be helpful. Sincerely yours, JOHN R. STEVENSON, Legal Adviser. APRIL 20, 1972. HON. SAM J. ERVIN, JR.. Chairman, Subcommittee on Separation of Powers, U.S. Senate, DEAR MR. CHAIRMAN: I have received your letter of April 4, 1972, in which you refer to a statement in the Foreword of the Department's publication Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 1972 concerning, among other things, agreements made "under and in accordance with the President's Constitutional power." You request information as to which of the agreements listed in the publication were made under that authority and inquire specifically under what legal or Constitutional authority each of the agreements was made. I believe that material heretofore sent to you presents information of the kind which you desire, not only with respect to agreements in force on January 1, 1972, as listed in the publication to which you refer, but with respect to all international agreements other than treaties entered into since 1945. On January 17, 1969, in reply to a letter from you dated September 20, 1968, there was sent to you by Mr. Leonard C. Meeker, The Legal Adviser, a 290-page compilation dated January 10, 1969 and entitled "International Agreements Other Than Treaties 1946-1968: A List With Citations of Their Legal Bases", in which all such agreements were classified according to the legal authority on the basis of which they were made or became effective. In a letter which you addressed to me on March 10, 1972, you requested an updating of the analysis embodied in the January 10, 1959 compilation. A 45page addendum to cover agreements to April 1972 was completed on April 3, and was transmitted to you with a letter dated April 10, 1972. I understand you have now received those documents. In the January 10, 1969 compilation, 4,926 agreements are classified in six categories according to their underlying authority: (A) prior legislation; (B) subsequent legislation; (C) legislation and treaty; (D) treaty; (E) partly legislation and/or treaty and partly constitutional authority; and (F) constitutional authority only. The material in the April 3 addendum is presented in the same format as the 1969 compilation. The agreements in category (F) are listed on pages 261-273 of the 1969 compilation and pages 36-38 of the addendum. Each of the documents contains a tabulated year-by-year summary showing the totals in each of the six categories. The summary in the addendum (page 39) gives consolidated totals indicating that a total of 5,589 international agreements other than treaties made during the period 1946-April 1972, 64 are classified as "Constitutional authority only". Those agreements are grouped under 23 headings by subject matter, with citations of the relevant provisions of the Constitution in each case. In regard to 15 of the 23 subject headings, the citation is to section 1 of Article II of the Constitution relating to "executive Power" and in the other 8 cases, in addition to the citation of section 1, section 2 of Article II of the Constitution relating to the President's authority as "Commander in Chief" is cited since the agreements deal with matters pertaining to the Armed Forces. Similarly, in the case of the 376 agreements listed in category (E) on pages 186-260 of the 1969 compilation and pages 30-35 of the addendum, either section 1 or both sections 1 and 2 of Article II of the Constitution are cited in addition to various statutory or treaty citations. The character and purposes of the agreements listed in category (F), i.e., agreements entered into in pursuance of, and deriving their effectiveness from, the authority and powers of the President under the Constitution, are indicated by the material given in the 1969 compilation and the addendum thereto. Reference should also be made to item 2 in the General Notes on page 1 of the 1969 compilation relating to "Exercise of constitutional authority". It is the position of the Department that the President has the authority to enter into certain agreements solely on the basis of his independent constitutional powers. The pertinent provisions are contained in the following clauses of Article II of the Constitution: "Section 1. The executive power shall be vested in a President of the United States of America. . . ." "Section 2. The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States; . . . "He shall have the Power, by and with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; . . . ." "Section 3. . . . [H]e shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed. . . ." Since these are broad and general powers, the conclusion of a given agreement may involve more than one of them. For this reason, it is difficult to classify them more specifically than is done in the studies referred to above. However, the general character of the agreement-making authority derived from these various provisions can perhaps be summarized as follows: Agreements concerning military matters are, of course, based at least in part on the President's power as Commander-in-Chief of the armed forces. This includes not only purely military matters, such as practical arrangements for cooperation with other nations in defense matters, but also, for example, agreements on conditions of armistice including the administration of occupied territory pending conclusion of a peace treaty. The President's authority to conclude executive agreements may also derive from his treaty powers. Although he can make treaties only by and with the advice and consent of the Senate, it is the President alone who negotiates, and the process of negotiation may entail the conclusion of protocols, which represent stages in those negotiations, or a modus vivendi in limited terms designed to serve as a temporary measure pending conclusion of a treaty. The power to "receive Ambassadors and other public Ministers" has been involved in, for example, the case of agreements incident to recognition of foreign governments, including such matters as the settlement of foreign claims. The provision empowering the President to "take Care that all the Laws be faithfully executed" provides a basis for agreements designed to implement provisions of the Constitution, statutes, and treaties, as well as other international obligations of the United States. More generally, and under the authority of the "executive Power" clause, the President acts as "the sole organ of the nation in its internal relations. and its sole representative with foreign nations." The normal conduct of foreign relations continually requires the conclusion of agreements of various sorts to compose differences with other governments, or regulate matters of mutual concern, and thus ensure the satisfactory continuation of diplomatic relations, these are the executive agreements which Professor Corwin has described as the "ordinary daily grist of the diplomatic mill." While the powers referred to are obviously quite broad. I do not mean to suggest that the President has independent constitutional authority to conclude all agreements on these subjects without limitation. The President's power is certainly subject to the express restrictions and prohibitions of the Constitution. Moreover, the President's responsibility in many of these areas is shared with the Legislative Branch, and his authority in such matters depends in some measure on whether and in what manner Congress has previously acted with respect to the specific subject matter involved. If I can be of any further assistance, please to not hesitate to call on me. JOHN R. STEVENSON, Legal Adviser. [Excerpts from International Agreements Other Than Treaties 1946-1968: A List with Citations of Their Legal Bases, Department of State, Jan. 10, 1969] CITATIONS OF AGREEMENTS MADE UNDER THE PRESIDENT'S CONSTITUTIONAL AUTHORITY F. CONSTITUTIONAL AUTHORITY ONLY (Note: Under this heading are agreements entered into in pursuance of, and deriving their effectiveness from, the authority and powers of the President under the Constitution. See also note number 2 under the General Notes, page 1.) Armistice or surrender Note: TIAS 2781 is a Joint Policy Declaration by "the United Nations Members whose military forces are participating in the Korean action" supporting the decision of the Commander-in-Chief of the United Nations Command to conclude an armistice agreement. TIAS 2782 contains the "Agreement Between the Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean People's Army and the Commander of the Chinese People's Volunteers, on the other hand, concerning a military armistice in Korea" and contains also a temporary supplemental agreement. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power") and sec. 2 (“Commander in Chief”). (b) Agreements-3. 1953-3. TIAS 2781 (Multilateral), 2782 (Korean People's Army and Chinese People's Volunteers, 2 agreements). Brazil-maritime transportation-consultations Note: This agreement establishes procedures for direct communication between the authorities of the two Governments for the "exchange of points of view and the adoption of appropriate measures on common problems of maritime transportation." The authorities to participate in the consultations are specified. "In the case of the United Staes, for this purpose, they are the Department of State, and, in appropriate cases, depending upon the matters under consideration, the Department of Transportation, the Maritime Administration, and the Federal Maritime Commission." It is provided further: "In case any measures agreed upon are of such character that might require decisions on higher level, the maritime authorities shall make the necessary recommendations to their respective Governments." (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). See also laws relating to the powers and duties of the respective departments and agencies: Secretary of State-5 U.S.C. 156; Department of Transportation-49 U.S.C. 1651 et seq.; Maritime Administration and Federal Maritime Commission-5 U.S.C. 597, 599; Reorganization Plan No. 21 of 1950, effective May 24, 1950, 15 FR 3178, 64 Stat. 1273 (amended by Plan, No. 7 of 1961, see below); S U.S.C. 1111 note, Reorganization Plan No. 7 of 1961, effective August 12, 1961, 26 FR 7315, 75 Stat. 840, as amended by P.L. 88-426, August 14, 1964, 78 Stat. 425. (b) Agreements.-1. 1968.-1 TIAS 6559 (Brazil). Canada-sewage disposal system Note: In this exchange of notes the United States requested, and Canada granted, approval for the United States Government to construct a sewage line to connect the United States border station at Dunseith, North Dakota, to the sewage disposal system owned by Canada on the Canadian side of the border. Approval to construct the line was sought because the sewage disposal system at Dunseith was inadequate and local soil conditions made enlarging it prohibitively expensive. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). (b) Agreements.-1. 1966.-1. TIAS 6037 (Canada). Canada-trade and economic policy—joint committee Note: TIAS 2922 merely designates a joint committee consisting of the United States Secretaries of State, Treasury, Agriculture, and Commerce and their Canadian counterparts, such committee to meet once a year or more often, as necessary, to consider matters affecting harmonious economic relations and to exchange information and views. The committee is to report to the respective Governments so that consideration may be given to measures to improve relations and encourage the flow of trade. The 1961 agreement in TIAS 5448 modifies the 1953 agreement by including the Secreatry of the Interior on the United States membership of the United States-Canadian Committee on Trade and Economic Affairs on a permanent basis due to the "great and growing interest in matters concerned with the development and exchange of energy resources". The agreement provides for consultation and cooperation between the two countries in this field. The 1963 agreement in TIAS 5448 modifies the 1953 agreement by including the Canadian Minister of Industry on the Committee on a permanent basis. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). (b) Agreements.-3. 1953.-1. TIAS 2922 (Canada). 1961.-1. TIAS 5448 (Canada). 1963.-1. TIAS 5448 (Canada). Claims-requisitioning of SS Marechal Joffre Note: By this agreement France agrees to pay all cargo claims arising out of the requisitioning during war of the SS Marechal Joffre, obtaining a release in favor of the United States Government and indemnification of the United States against any loss arising out of the goods involved in the claim. Australia will pay to France the net proceeds from disposition of cargo unloaded in Australia. Payments made as to claims of United States citizens will be paid by France in United States dollars. Australia waives any further claim against the United States Government arising out of the requisitioning of the vessel and the unloading of cargo in Australia. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). (b) Agreements.-1. 1948.-1. TIAS 1816 (France and Australia). Claims-sinking of Awa Maru-Japanese waiver Note: While acknowledging United States Government responsibility for the sinking of the Japanese passenger-cargo vessel AWA MARU on April 1, 1945, and expressing regret, the agreement provides that the Japanese Government "waives on behalf of itself and all Japanese nationals concerned all claims of any description against the United States Government or any United States national arising out of the sinking of the Awa Maru". This waiver is given by Japan "mindful of the equities of the situation as they have developed since the inception of the occupation of Japan under General of the Army Douglas MacArthur and in appreciation of the assistance-direct and indirect, in goods. and services-received during the post-surrender period from the Government of the United States of America". This waiver by Japan is accompanied by an understanding that occupation costs and loans and credits extended to Japan by the United States are valid debts owed by Japan, reducible only by United States decision. In Article 19 of the Treaty of Peace (TIAS 2430), Japan. waived all claims arising out of the war and occupation. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). (b) Agreements.-1. 1949.-1. TIAS 1911 (Japan). Defense-armed forces, United States-presence in foreign countries Note: These agreements confirmed that United States armed forces remaining in the foreign country were "so stationed with the full and freely given consent of" that foreign country. The agreements were made in order to elim inate any question regarding conformity with paragraph 7 of a United Na tions Resolution on the Principles Governing the General Regulation and Reduction of Armaments, adopted by the General Assembly on December 14, 1946 pursuant to its authority under the United Nations Charter of June 26, 1945 (TS 993, 59 Stat. 1031). The cited paragraph 7 expresses the principle that armed forces of one country should not be or remain in another country without the full and freely given consent of such other country. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power") and sec. 2 ("Commander in Chief"). (b) Agreements.-2. 1947.-2. TIAS 1663 (Guatemala), 1715 (China). Defense-Denmark-Greenland defense projects Note: This agreement establishes a United States-Danish Committee on Greenland Projects for the exchange of information and consultation. An existing Project Commission was to continue functioning in regard to construction, operation, and manning of Distant Early Warning (DEW) Stations in Greenland until construction and installation of the DEW Line Stations had been completed; then the function was to be transferred to the Committee. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power") and sec. 2 ("Commander in Chief"). (b) Agreements.-1. 1960.-1. TIAS 4657 (Denmark). Dominican Republic-external debt-treaty termination Note: This agreement records the understanding of the two Governments that, since funds sufficient for full redemption of outstanding bonds and aecrued interest of Dominican external debts of 1922 and 1926 had been depos ited in trust for redemption, and all other obligations under the Convention of 1940 had been extinguished, the Convention, with accompanying exchange of notes, had terminated automatically, by its terms, on October 1, 1947. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power"). See also Convention (treaty) of September 24, 1940 modifying the Convention of December 27, 1924 providing for the assistance of the United States in the collection and application of the customs revenues, TS 965, 55 Stat. 1104. (b) Agreements.-1. 1951.-1. TIAS 2365 (Dominican Republic). Germany-Berlin blockade and east-west zones restrictions Note: This agreement brought about the end of the so-called Berlin Blockade and of restrictions imposed on communications, transportation, and trade between Berlin and the Eastern and Western Zones and between the Eastern and Western Zones. The agreement is dated May 4, 1949, ending restrictions as of May 12. (a) Authority.-U.S. Constitution, Art. II, sec. 1 ("executive Power") and sec. 2 ("Commander in Chief”). (b) Agreements.-1. 1949.-1. TIAS 1915 (Multilateral: France, United Kingdom, Union of Soviet Socialist Republics). Haiti-external debt-payments on outstanding bonds Note: These agreements were part of a series formalizing procedures by which Haiti would liquidate its external debt, especially as to bonds held by United States citizens. Agreements continued from year to year an arrange ment whereby all receipts of Haiti would be deposited in a Bank which would make payments provided for by loan contracts of 1922 and 1923 and whereby Haiti agreed to pay a specified sum on account of amounts required to be paid under those contracts for amortization, the United States at length agreeing to the floating of an internal loan by the Haitian Government for redemption of the bonds. The history goes back to the situation that led to the Treaty of 1915 with Haiti (TS 623, 39 Stat. 1654), which expired on May 3. 1936, and under which the United States undertook to assist Haiti in remedying condition of its revenues and finances and in carrying out plans for economic development of Haiti. Beginning in 1933, the United States and Haiti entered into agreements extending and modifying on a year-to-year basis the arrangements for placing Haitian fiscal functions on a sound base and ensuring continuance of efficient procedures for final settlement of the Haitian debt under the loan contracts. |