網頁圖片
PDF
ePub 版

S. 3475-TO HELP PRESERVE THE SEPARATION OF POWERS AND TO FURTHER THE CONSTITUTIONAL PREROGATIVES OF CONGRESS BY PROVIDING FOR CONGRESSIONAL REVIEW OF EXECUTIVE AGREE

MENTS

TUESDAY, APRIL 25, 1972

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS OF THE

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to recess, at 10:05 a.m., in room 1114, New Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding.

Present: Senator Ervin (presiding).

Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel, and Prof. Arthur S. Miller, consultant.

Senator ERVIN. The subcommittee will come to order.

I am delighted to welcome to the subcommittee as the first witness today, Senator Clifford P. Case, distinguished Senator from New Jersey, who has long been interested in the field which we are exploring and who has made a most substantial contributon toward bringing some order in this area by introducing a bill which the Senate has passed and I trust the House will pass-which requires the executive branch of the Government to file all of the executive agreements with the Congress so that the Congress can take a look at them and know what is going on in this field.

I think you made a signal contribution to the country by introducing that bill, and I sincerely hope the House will pass it.

We are delighted to have you here, because you have given much study to executive agreements and probably are one of the most knowledgeable men in the country on the importance of some congressional action in this area.

STATEMENT OF SENATOR CLIFFORD P. CASE, A U.S. SENATOR FROM THE STATE OF NEW JERSEY

Senate CASE. Thank you, Mr. Chairman. I am grateful for your introductory comments, and I am even more flattered by the fact that you found the bill in regard to sending up executive agreements to Congress worthy of building upon, and I am happy to be associated with you and other colleagues in this effort which is not-as

anyone who knows you knows and I hope would feel the same way about me a destructive effort and not an adversary operation but is an effort to restore the kind of balance that our Government ought to have.

Senator ERVIN. Your bill has laid the foundation for and inspires this bill. What we are trying to do is to make our system of shared powers in the foreign relations field work with a maximum amount of efficiency and a minimum amount of injury to the country.

Senator CASE. That is so true. It is something that has, constantly, to be pushed, because there is a tendency-no good man holds a job without trying to make his job the most important, and as he sees it, the most effective. So, it is necessary for the Congress constantly to assert not only its prerogatives but its rights and also its responsibilities in this and other fields, too. But now we are talking about this one.

Just as an aside, if I may: I cannot tell you how pleased and excited I was, and what a deep feeling of satisfaction I got in regard to, if I may be allowed a personal reference, your interest and activity in securing the presence of Peter Flanigan before your subcommittee hearing the judicial nomination. I think this was a terribly important contribution to an attempt to take away some of the layers of isolation that the Presidency has been surrounded with, not so much by the Presidents individually as by the people who work for

them.

Senator ERVIN. Yes.

Senator CASE. Your getting Mr. Flanigan up here under the proper circumstances was terribly important, and I am so glad you were able to do it.

Senator ERVIN. Well, thank you. I might state, with respect to this particular bill, of course, that the Subcommittee on the Separation of Powers is interested in the question of separation of powers, and the Foreign Relations Committee is interested in all matters that affect our foreign policies and our foreign affairs.

So, Senator Fulbright and I discussed this matter and recently made an agreement that the Judiciary Committee would study this bill first and then it would be referred to the Foreign Relations Committee. This bill, of course, is sort of a blueprint. I have no idea that it is in its final form, and I hope each committee can make some contribution to in some way make the objectives of the bill effective.

And that is the purpose of our hearings.

Senator CASE. Well, I do understand that. I read Mr. Fulbright's testimony that he presented to you, to your subcommittee, yesterday morning with very great interest, and I think actually we can do things together that we cannot do separately.

Senator ERVIN. Yes.

Senator CASE. Your committee and ours. We have different constituencies in some measure but in this I think we are working definitely toward the same aim and with a spirit of cooperation that I think is essential if Congress is to be an effective proponent of its own position in the Government.

One great thing about the Presidency is its singleness and its ability to attempt to-and again I am not talking as to the Presidents

as individuals but as to the institution-to attempt to divide the Congress and to render it relatively impotent.

And your cooperation with Senator Fulbright, your committee and our committee together, working together, are going to produce, I think, good, excellent, results.

As far as the specifics of the suggestions that Senator Fulbright made, as he said, they were made tentatively because he and I feel this, too, that we should consider all of these things in some depth before we try to get very specific about the approaches. I think his general thought is pretty good.

Senator ERVIN. I thought his suggestions

Senator CASE. Mr. Chairman, to me, as a member of the Foreign Relations Committee, Senator Fulbright's analysis was very sound. I was not surprised, because our chairman is a very perceptive man. Senator ERVIN. I thought your suggestion constituted one of the most admirable examples of the advisability of holding hearings and using the specifics as proposed legislation, because he made some extremely thoughtful suggestions on matters which merit the greatest consideration insofar as changes in the phraseology of the bill are concerned.

Senator CASE. I thought so, too, and I am not surprised that they appeal to you, because I know how deeply you study all of these

matters.

Mr. Chairman, I have a prepared statement which I will just perhaps run over the high spots of, and, then, if I may, have it inserted in the record in full.

(The prepared statement submitted by Senator Case reads in full as follows:)

STATEMENT OF SENATOR CLIFFORD P. CASE

Mr. Chairman, I was extremely pleased to learn that this subcommittee would be holding hearings on executive agreements and treaties. We on the Foreign Relations Committee have considered pacts with foreign countries on an ad hoc basis, but there has been a pressing need to take a closer look at the basic constitutional questions involved. In this area, the jurisdictions of our two committees overlap.

During the last few years I have spent considerable time trying to deal with the difficulties raised by executive agreements. My efforts have led to some legislative successes, and these, to a large extent, reflected the wise counsel and support I received from the Senator from North Carolina (Mr. Ervin).

Our whole Constitutional system is based on checks and balances. Fearing the concentration of power in one man or even one branch of government the founding fathers wrote a Constitution in which each branch found its authority limited by the other two.

Thus, the Executive was to make treaties with foreign countries, but these treaties were not to have effect until approved by two-thirds of the Senate. In this way, the Executive alone could not involve the country in a foreign entanglement.

Yet the practice has grown increasingly common under the last five presidents for the Executive branch unilaterally to bind the United States in agreements with other countries. The device used has been the so-called executive agreement, but the executive agreement is nowhere mentioned in the Constitution. Under the executive agreement, the United States has been committed to Destroyers-For-Bases, Lend Lease, Korean mercenaries, and Spanish bases. Congress has always been asked to pay the cost of these deals, but we have never been able to exercise our Constitutional responsibility of considering them in advance.

The executive agreement should only be used if the matter under discussion with a foreign country is relatively unimportant. If the United States seeks to increase the size of its embassy in a particular country or arrange an exchange of scholars, there is no need for a treaty to be concluded. In fact, if treaties were used in those minor matters, the whole business of conducting the nation's foreign affairs would be hampered.

I think the real test must be the importance of the agreement. And as Senator Harry Byrd recently stated: "The doubt should be resolved in favor of the legislative process.'

There is no question that a mutual defense agreement with another country should be a treaty. I believe the Executive Branch would agree with me on this, although even here there seems to be some dispute. I am thinking of the so-called Thai contingency plan which may or may not have committed the United States to take certain actions to defend Thailand in the event of certain contingencies. While this issue was clouded by Executive secrecy, my view is that this contingency plan legally had no effect without the advice and consent of the Senate, but I am not sure the Thai ever understood this. As a practical matter, an executive agreement can take on a life of its own in the eyes of foreign countries, the American public, and even our own government officials.

Agreements closely related to our country's national security should also be treaties, and I shall list three types which have lately been dealt with, incorrectly I believe, as executive agreements. These are: (1) agreements providing for U.S. military bases abroad; (2) agreements revising or extending arrangements for these military bases; and (3) agreements providing for the storage of nuclear weapons overseas.

There are other important matters such as taxation, extradition, and consular relations which at times should be included in treaties, but my primary concern is with questions that touch on our national security, and my list should not be regarded as all inclusive.

The stationing of American troops abroad can lead to a commitment to the host country and ultimately to war. It is simply too important a question, from both a Constitutional and a practical standpoint, to be left to ratification by the stroke of a diplomat's pen.

I have made my position clear in the recent cases of executive agreements concluded with Portugal and Bahrain. In the Portuguese case, the United States "committed" itself to provide Portugal with about $436 million in assistance and credits in return for a 25 month extension of the use of military bases in the Azores. With Bahrain, we have agreed to pay several hundred thousand dollars in rent for military facilities on that Persian Gulf island.

For the last five months, I have been working to have these two agreements submitted to the Senate. I started out by writing Secretary of State Rogers on December 9, 1971 urging that the Portuguese agreement be put into treaty form. When it became clear that the Administration would not act favorably on my letter, I introduced a resolution, with the co-sponsorship of four other senior Foreign Relations committee members, which called on the Administration to submit the agreement as a treaty. This resolution was later expanded to include the Bahrain agreement, and 30 senators eventually became co-sponsors. On March 3, the Senate passed this Portugal-Bahrain resolution by a vote of 50 to 6. Still in a March 21 letter, the Administration stated that after "serious consideration," it would not submit the agreements to the Senate. Claiming that the agreements "were appropriately concluded as executive agreements," the State Department's only reaction to the overwhelming vote on my resolution was to "have noted the sense of the Senate."

I understand full well that a Senate resolution is not legally binding, so the State Department technically has the right only to "note it." Yet I must say that the attitude of the Department was most unwise and shortsighted in the extreme.

At that point I was faced with two choices: Either I could let the matter drop-content to have a resolution with my name on it passed by the Senateor I could at least try to take further action. I chose the latter course because I believed a fundamental Constitutional question was at stake, and on April 4 I introduced a bill (S. 3447) which would cut off all the implementing provisions of the Portuguese and Bahrain agreements until they are submitted to the Senate as treaties.

The Senate cannot compel the Executive to submit the agreements, but at the same time the Senate does not have to appropriate any money to pay for the costs of the agreements. The pursestrings of the appropriations process are Congress'ultimate weapon and one we should use, albeit judiciously, in foregin as well as domestic affairs.

Some commentators have mentioned my actions as part of what is known as the re-emergence of Congress in foreign affairs. That is a correct interpretation as far as it goes. But I would look at it more as an effort to return to the letter and the intent of the Constitution. I am not at all interested in an aggrandizement of Senatorial power. What I am interested in is preventing the executive branch from committing our country to significant and often irrevocable courses of action without approval of the Congress and ultimately the people.

Checks and balances are what our system is all about.

Senator CASE. Everything that we are doing is based upon the understanding of our constitutional system as one of checks and balances. This is such an old conception, and one to which we are accustomed to pay lipservice, not thinking whether we really mean it. We should mean it, for it is terribly important. It means preventing the concentration of power in one man or in one branch of government and it does not mean it as a matter of scenery, it does not mean it as a matter of logical paper-organization structure; it means it in fact.

How this carries with it, of course, a lot of agony. It is frustrating to a President, it is frustrating to you and me, if we cannot have our own way after we have worked hard and want to do something. We see people who object to us only as obstructionists and, naturally, we are upset about it. Being human, we attempt to use all the resources at our command to get our own way not just for selfish reasons, but because we think it is right.

I venture to say that the greatest harm can sometimes be done by the person who is the most sincere in his conviction of his own rightness and his own correctness and his own honesty.

It is people of that sort who have to be checked by the system of checks and balances which the Constitution provides specificially and explicity. We will never keep this system unless we fight for it, as the chairman so well knows.

Well, the Executive makes treaties with foreign countries, and that is right because we cannot all go into negotiating with foreign countries. Just our experience, as well as logic, clearly demonstrates the impossibility of that.

The President has got this job to do. But when he has reached a tentative agreement with a foreign country then the Constitution requires that it come to the Senate for ratification or disapproval. Ratification needs a two-thirds vote; and the importance of the Senate's participation is shown by the requirement of the two-thirds vote. A majority vote, a transient one-more-than-half is not enough. A two-thirds vote is required and, as the Senator knows, from experience in various applications, a two-thirds is not lightly come by.

The great purpose of the constitutional requirement of treaty ratification by the Senate was, and is, to prevent the Executive alone. from involving us in entanglements with foreign countries.

And yet the practice has grown increasingly, under six Presidents who have held office during the time of my service in Congress, for the executive branch to attempt unilaterally to bind the United

80-847-72-8

« 上一頁繼續 »