Armed Forces or financial resources of the United States, either immediately or upon the happening of certain events, and (2) it is the sense of the Senate that a national commitment by the United States results only from affirmative action taken by the executive and legislative branches of the U.S. Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment."

This language, it seems to me, clearly indicates the kind of subject matter which should be covered by a treaty, or, if not by a treaty, by specific legislation for the purpose. Certainly it does not leave room for unilateral action by the executive branch in the formulation and conclusion of significant international agreements, as if our legislature, our representative form of government and even our Constitution did not exist.

And yet the direction of events is going in quite another way, and at an increasing pace. The Senate is asked to convene solemnly to approve by a two-thirds vote a treaty to preserve cultural artifacts in a friendly neighboring country. At the same time, the Chief Executive is moving American military men and material around the globe like so many pawns in a chess game, and is spending enormous sums of money for bellicose purposes-all without any clear constitutional or legislative authority to do so, other than appropriations.

As recently as the middle of last month Senators were called to the Chamber to give their consent to ratification of the equivalent of a treaty action to increase the membership of the International Atomic Energy Agency Board from 25 to 34, or possibly, 35. The distinguished Senate majority leader virtually had to apologize for taking up his colleagues' time with such a minor issue, saying-and I quote from the Record of March 15th:

if this is the type of treaty which is supposed to occupy the concern of the Committee on Foreign Relations and to call for a two-thirds vote for ratification, then I think there is something wrong with our system . . . . I would hope that this kind of treaty could be executed on the basis of an executive agreement and that many of the executive agreements could be executed in forms of treaties. . .

Fortunately, owing largely to the praiseworthy initiative of the senior Senator from New Jersey, the Senate has taken some recent concrete steps toward congressional definition and control of the murky subject of executive agreements. The necessary historical background to the subject had been developed over several years through the Foreign Relations Committee action and report on Senate Resolution 85, through the Symington subcommittee's investigations and reports on U.S. security agreements had commitments abroad, and through numerous public hearings and speeches in the Senate. This body of material surely is very familiar to my colleagues though regrettably perhaps not to the American public as a whole-and I need not repeat it here. But I would like to submit, as one specific example of that documentation about the erosion and evasion of legislative power, the following quotation from the committee report on Senate Resolution 85:

In some instances we have come close to reversing the traditional distinction between the treaty as the instrument of a major commitment and the executive agreement as the instrument of a minor one. In 1967, for example, the Senate considered and gave its approval to a tax treaty with Thailand. At no time, however, has a treaty or any other legislative instrumentality been put

before Congress with regard to the 50,000 American troops now in Thailand, many of whom are engaged in military support operations against insurgency.

With this example and the even worse Laotian situation in mind, in October of last year the Committee on Foreign Relations held an illuminating public hearing on Senator Case's bill, S. 596, relating to the transmittal of executive agreements to Congress. Testifying on that occasion were the Legal Adviser of the State Department, John Stevenson; the distinguished historian, Prof. Ruhl Bartlett of the Fletcher School of Law and Diplomacy at Tufts University; and the equally distinguished legal authority, Prof. Alexander Bickel of the Yale Law School.

In my opening remarks at the hearing I said:

Before undertaking to reexamine and then perhaps to reassert its proper constitutional authority in the area of the treaties, Congress must first ascertain that at least it knows of the existence and content of agreements contracted with foreign governments by the Executive.

This was certainly also the view expressed by the two academic experts, and the State Department witness said he at least did not disagree with the objective of the bill. After providing an excellent historical summary of the issues involved, Professor Bartlett stated:

In view of this perspective, it seems to me that this proposed measure is so limited in its scope, so inherently reasonable, so obviously needed, so mild and gentle in its demands, and so entirely unexceptionable that it should receive the unanimous approval of the Congress

The truth and wisdom of this observation were confirmed on February 16, 1972, when the U.S. Senate approved S. 596 by a vote of

81 to 0.

Now the curious fact is that Senator Case's bill was modeled upon a measure introduced 15 years ago by Senator Knowland with the full cooperation of the Eisenhower administration and then approved by the Senate. Yet the current administration felt compelled to oppose S. 596 and to ask that working arrangements be substituted for any legislation in this area. It was made quite obvious that the executive branch was entirely unwilling to make secret or sensitive agreements available to the appropriate congressional committees except on its own terms-although the euphemism employed was mutually acceptable practical arrangements.

It was pointed out by the State Department Legal Adviser that the procedure-known in the executive branch as the "Circular 175 Procedure"-for determining whether an international agreement should be a treaty was established in 1953. Further, the standards for determination adopted in 1964 by the Adviser's staff were again presented to the committee. These criteria, as will be shown later in these remarks, are so general and so suffused with references to the President's constitutional authority and power as to place the legislative branch at an immediate disadvantage in the process. Equally important, the executive branch clearly preferred to talk about notification rather than give any attention to the constitutional right and duty of the Congress to participate in the policymaking process. It is certainly no personal criticism of the distinguished Legal Adviser or his staff to suggest that their collective opinion was naturally that of a House Counsel. Neither is it any criticism of

them to note that the procedures and standards developed in 1953 and 1964, respectively, have not served the interests of the legislative branch or the Nation.

But, as Alice said in Wonderland, the story becomes "curiouser and curiouser." Remembering that the hearing on S. 596 took place in October, and noting that no committee action was taken until December 7, 1971, it is instructive to see how existing legislative-executive procedures operated in the interim period. For this sheds some light on the possibilities inherent in the concept of working arrange

ments.

During November a copy of a State Department memorandum of law was dropped off at the Foreign Relations Committee office, giving notification of a forthcoming naval base facilities agreement with Bahrain, as well as a finding under the "Circular 175 Procedure" that congressional action was not required. A bare minimum of factual information was included-although more ample and rather differently stated material was given the Armed Services Committee and it was left to the committee to extract more data, especially with respect to the timing of the negotiations. The latter were concluded in an exchange of notes on December 23.

Mr. Chairman, in that connection, to illustrate the way the State Department describes this type of action, I think it would be interesting to put in the record a recent publication. It is called "GIST”, issued by the Bureau of Public Affairs of the Department of State. This is No. 73, entitled "Treaties and Agreements: Azores and Bahrain Facilities."

It gives some feeling of the way executive officials describe these arrangements "Issues", as they call them, and I think it is a very one-sided-I call it distorted-view of what is involved.

In that connection, I think comparing it with the report of the Committee on Foreign Relations on the agreements with Portugal and Bahrain, gives some illustration of what I am talking about as further background, if that is agreeable to the committee.

(The document follows:)

GIST-A QUICK REFERENCE AID ON U.S. FOREIGN RELATIONS PRIMARILY FOR GOVERNMENT USE. NOT INTENDED AS A COMPREHENSIVE U.S. POLICY STATEMENT

TREATIES AND AGREEMENTS: AZORES AND BAHRAIN FACILITIES

1. The issue: Certain members of Congress have expressed concern about the authority of the Executive branch to enter into or extend foreign military base agreements without prior Congressional approval. Most recently this concern has centered on two Executive Agreements concluded by the U.S. for our use of facilities- in the Azores and Bahrain.

2. Determining factors: An international pact, depending on its content and significance, may be either a treaty, which requires Senate advice and consent to ratification, or an Executive Agreement not requiring Senate action. An Executive Agreement may be made:

(1) with Congressional authorization under a statute or joint resolution; (2) under authority of a treaty previously approved by the Senate; or

(3) under the President's authority as set forth in Article II of the Constitution.

In considering whether an agreement should be concluded as a treaty or as an Executive Agreement the Department of State takes into consideration whether: The agreement involves important commitments to be undertaken by the U.S.; the subject matter traditionally has been handled by treaty or Exe

utive Agreement; it is desired to give great formality to the obligations undertaken; it falls solely within the President's constitutional authority or into an area of powers shared between the Congress and the President.

When the agreement falls in the area of shared powers, other factors to be considered include whether: Legislative authority exists for entering into the agreement; the agreement is to be self-executing-i.e., having the force of law without legislative action by the Congress; the agreement is intended to override state law.

3. U.S. position: A. Azore agreement (December 1971).

The military facilities in the Azores are important to U.S. national security. Our facilities there are uniquely suited for anti-submarine surveillance and are valuable for aircraft refueling and staging over the mid-Atlantic.

Agreements implementing treaties traditionally have been concluded by Executive Agreement. U.S. rights to station forces in the Azores were originally agreed to during World War II; they have been continued since 1951 under a series of agreements executed in implementation of the North Atlantic Treaty. This renewal agreement contains no new defense commitment to Portugal. To cast the agreement in the form of a treaty requiring the Senate's consent to ratification might incorrectly imply that the agreement involves a new U.S. security commitment. The agreement on the Azores in no way alters our security commitment to Portugal under the North Atlantic Treaty.

The President has constitutional power to conclude agreements providing for facilities for our military personnel abroad. The Congress alone has the right to authorize and appropriate funds. Our assistance commitments to Portugal are made specifically within the limitations of applicable U.S. legislation and appropriations.

We are furnishing Portugal direct assistance in connection with the agreement as follows: Loan of an oceanographic vessel; $1 million for Portugal's educational reform program; $5 million worth of non-military excess equipment; PL 480 sales of surplus agricultural commodities up to $15 million annually for the next two years. Export-Import Bank financing of development projects is available upon application to the Bank by the Government of Portugal. None of this assistance has any relationship to the Portuguese territories in Africa where our arms embargo continues fully in effect. B. Bahrain Agreement (December 23, 1971).

A direct government-to-government agreement became necessary when the U.K. terminated its protective treaty relationship with Bahrain, which emerged as a fully independent state directly responsible for conducting its foreign relations. At the same time the British relinquished to the Government of Bahrain naval support facilities previously available to the U.S. Navy's small Middle East Force under informal arrangements with the U.K. on behalf of and with the approval of the Bahrain authorities.

The agreement provides in principle for continued use by our Navy a small portion of the former British facilities under leasing arrangements for logistic support requirements (warehousing, communications facilities, commercial pier, etc.). The agreement also defines the status of our Middle East Force personnel when ashore in Bahrain in such matters as jurisdiction, tax status, etc.

This agreement constitutes no political or military commitment to Bahrain or any other state in the area; nor does it involve a new U.S. policy or any change in the U.S. Navy's scope or mission there.

Withdrawal of our small naval contingent as the protective U.K. relationship ended might have been misinterpreted as an abandonment of U.S. interrest in the Persian Gulf region, a major source of petroleum for the industrial nations.

Senator FULBRIGHT. Even the courtesy of notification in advance of the press being informed was denied the committee with respect to the December 9 signing of a $436 million Azores base agreement with Portugal. And again the magical circular 175 procedure found that Congress need only be notified. While the State Department excused its haste on the flimsy grounds of President Nixon's Azores visit, there was no explanation why the committee was not consulted during the 2-year negotiating phase.

So much for "working arrangements." The plain fact is that the executive branch, unless placed under clear legislative restraints, always seems able to justify to itself any action it wishes to take abroad. Even when there are restraints, there appear to be teams of executive branch lawyers busily examining the fabric of constitutional precepts and precedents in order to find supposed loopholes. As exemplified by our legislative amendments regarding the wars in Southeast Asia, Members of Congress are placed in the demeaning position of so many Dutch boys putting their fingers in the dike only to find new holes popping open in every direction.

In response to the Azores and Bahrain faits accomplis Senator Case introduced Senate Resolution 214, requesting that the two executive agreements be submitted as treaties. My colleagues are aware that the resolution was approved by the Senate this March 3 last by a vote of 50 to 6. The sense of the Senate merely met with a polite letter of rejection from the Assistant Secretary of State for Congressional Relations. Now Senator Case has taken the only course of action possible in introducing a bill to cut off funds to implement either agreement.

Mr. Chairman, it is against this background-fragmentary as it isthat I welcome the opportunity to comment on your bill to "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."

First, let me say that S. 3475 represents a praiseworthy and logical second step in the nonpartisan process initiated by the distinguished senior Senator from New Jersey.

A second prefatory comment concerns my understanding that you have introduced this measure precisely to stimulate debate, that you are not wedded to each of its provisions, and that you will accept my criticisms of the text in the spirit in which they are intended.

My third introductory point relates to my reluctance to submit at this juncture proposed substitute language in anything more than a preliminary and tentative form. Since the bill, under the unanimousconsent ruling of April 11, will be referred to the Committee on Foreign Relations, as chairman I would prefer to retain as much latitude as possible in my position in order to facilitate the process of considering S. 3475 in committee. Moreover, I believe the formidable array of legal talent in your subcommittee and its parent body is far more capable than I of finding precise legislative formulations for the ideas offered at these hearings.

Senator ERVIN. If I may interject myself at this point, I would say your analysis of the purposes of the bill are indeed correct. It is my idea this committee, which has had much experience in the study of the separation of powers of the three departments of Government, would look at this bill and make our suggestions about improvements in it. Under the Senate agreement, the bill, after this committee finishes its study, will be referred to the Foreign Relations Committee, because I consider this subcommittee and the Foreign Relations, both, to have a peculiar interest in this bill.

Thus far, I think the two committees have manifested a kindred feeling about the advisability of reasserting the constitutional powers of the legislative branch of the Government in this general area.