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Senator ERVIN. But that is precisely what the Congress did in section 33 of the Arms Control and Disarmament Act.

Mr. BUZHARDT. They put in the alternative there and I think in that particular case since it was in the alternative it left the President's condition of foreign relations to him as to which route he would choose and he could have an executive agreement and therefore not give it the significance internationally.

Senator ERVIN. But they could put it in the alternative, either (a) or (b), as Congress did, saying that there must be a subsequent treaty or subsequent act of Congress approving his action. Congress can specify either one of those alternatives if it wishes.

Mr. BUZHARDT. I don't agree, Mr. Chairman. I think they could do it one way or the other, but if you would prescribe one way or the other, you would interfere with the President's conduct of the foreign relations.

Senator ERVIN. All the President is doing there is carrying out the authority given him by Congress.

Mr. BUZHARDT. I know, but you are telling him how he will execute. I think there is a limit to the degree of whether the limit is in the impairment of his ability to do it and his constitutional authority to conduct foreign relations.

Senator ERVIN. His negotiation is done. His negotiation is done. before he ever makes his report to Congress.

Mr. BUZHARDT. Mr. Chairman, whether

Senator ERVIN. But this act says it shall not be binding on the United States unless it is approved by subsequent treaty or subsequent act of Congress.

Mr. BUZHARDT. If it says or, I agree, as this does, but if it said. one and excluded the other, then I think you would

Senator ERVIN. I am totally incapable of comprehending how such a statute would hinder the President, because it doesn't affect his negotiation. His negotiation is complete.

Mr. BUZHARDT. It could very easily affect his negotiations because in the process of negotiating a treaty or executive agreement, it is often of importance to the Government which you are negotiating with whether or not the agreement which you signed will be considered by the United States to be a treaty or an executive agreement. It does have an international impact and a country might agree to do it one way but not the other regardless of the substantive terms. Senator ERVIN. Well, that is something about the power of the other country, not the power of the Congress as I see it.

Mr. BUZHARDT. It is, but if you take this latitude away from the President to make within bounds the choice, then you impair his ability to make agreements and to negotiate agreements successfully. Senator ERVIN. Well, I think Congress can make it either way. I can't see why the alternative is necessary, because the negotiations are completed before the President ever comes for the authorization or for the ratification, as the case may be. That is a matter between Congress and the President, not between the President and a foreign country. I think Congress can provide that an agreement must be submitted in the form of a treaty.

Mr. BUZHARDT. I would respectfully disagree with you, Mr. Chair

man.

Mr. EDMISTEN. Mr. Buzhardt, don't you believe in retrospect that it would have been the better part of wisdom for the Spanish bases agreement and Azores agreement and Bahrein agreement to have been submitted to the Congress?

Mr. BUZHARDT. I wouldn't comment on it. I really have not been into it in that detail. I frankly have not even read the hearings on it.

Mr. EDMISTEN. Well, we were talking about embarrassment to the United States a moment ago. If S. 3447 which Senator Case has introduced were passed, it seems that it might cause embarrassment to the United States because it simply says unless those agreements are submitted as treaties, then the aid shall be cut off. The funding. I can conceive of that as being quite embarrassing and I think it could have been avoided had it been submitted as a treaty.

Mr. BUZHARDT. It probably would have been a bigger embarrassment in some instances if it had been submitted as a treaty. As a general rule I would not think a base agreement was the type of agreement which would merit the status of a treaty which requires Senate ratification. In the first place, it is an option on the part of the United States and I am speaking of a simple base agreement, not one which committed the United States to do something, but a simple base agreement that gives the United States the option to utilize a base on foreign territory which the country could not possibly do without the appropriations of the Congress and in many instances the authorization of military construction in mot countries I might say. I just don't think that is of sufficient significance to permit treatment as a treaty.

What I am trying to say here is that there are factors other than the concurrance or the procedures within this country relative to a treaty which bear on the issue of whether or not an agreement should be treated as a treaty or an executive agreement.

Senator ERVIN. But a lot of Senators disagree with that because when you establish a base and put your troops there, you make it certain, rather, you subject them to the potentiality of being attacked by a foreign nation and thus precipitating armed conflict. Mr. BUZHARDT. Mr. Chairman, I agree, and if the Congress doesn't want troops there, they have adequate authority to keep them from being put there. In authorizing an appropriations bill, all they have got to do is say none of the funds appropriated herein shall be used for the payment of troops in a given country, and that is it.

Senator ERVIN. That is all very true, but the alternative is this. The President makes an agreement with a foreign country which is not very well versed on our constitutional processes, and Congress has no choice then except to ratify the action of the President, or repudiate him, and if Congress repudiates the action, it has a very disastrous effect on our foreign relations.

Mr. BUZHARDT. The same would be true if the President negotiated and submitted to the Congress and the Congress rejected.

Senator ERVIN. No, no, because they would know that the President is just negotiating in that case.

Mr. BUZHARDT. Mr. Chairman. It is inconceivable to me that any country with which we negotiate an option to use a base is not

aware of the fact that only the Congress appropriates the money. In fact, sometimes in dealing with these foreign countries, I think they know our congressional procedures better than some of our own people.

Senator ERVIN. I think they know about our constitutional and treaty making provisions, but I doubt very seriously they know all of the laws written in 113 or 114 volumes of our United States Code, because I don't know any American lawyers who know that.

Mr. BUZHARDT. I don't know either, but when it comes to things that affect those foreign countries, what those appropriations committees do and how they do it, I am under the impression they are thoroughly familiar.

Mr. EDMISTEN. I believe that you are not quite as concerned about this bill as the State Department is.

Mr. BUZHARDT. I am most concerned about this bill, Mr. Edmisten. I wouldn't know where to start if it were passed.

Mr. EDMISTEN. You wouldn't know what to send over to Congress?

Mr. BUZHARDT. I don't know what it applies to in the first place. I think it would impair the ability to negotiate in the most serious fashion. I think it would frankly-it could tie the Congress up in a great deal of trivia and cause the greatest type of constitutional questions and possibly even confrontations between the constitutional confrontations between the executive and legislative branches. I certainly didn't mean to minimize my concern about the bill in anything I said.

Mr. EDMISTEN. Under interpretation of what an executive agreement is, how many do you think you would have to send from the Defense Department every year to the Congress?

Mr. BUZHARDT. I frankly have no idea. If you speak of executive agreement in the sense of the international law-they are called treaties generically-and in the sense of title 1, U.S.C., section 112(a), we wouldn't have to send any, I think, or a very few. The State Department would send them. If you talk about commitments which bind the United States which are made by-with another nation, which are made by the President or any officer or employee or representative of the executive branch of the U.S. Government, we would have to send to some other committee inumerable pieces of paper that we now send to somebody else. It is inconceivable we would have to send our sales contracts, and they get rather bulky. As I say, they run about 3,300 a year. I can't conceive that the Congress would want them or have any use in looking at them.

From my own standpoint they are contracts. We go through a long process, there is private participation in these. It is much like any bank loan. We render opinions. The opinions set forth the statutory authority and place the full faith and credit of the United States to some private lender, this type of guarantee. A thick set of documents and annexes describing technical equipment, depending on what is sold, conditions of the indemnity and who bears the risk of loss at various points, enormously technical sort of procedure.

The military assistance grants on grant aid, I can't conceive that Congress would want to wade through each one and have some responsibility to act or else hold them up for 60 days because they

are fairly standard format. If you want to know what they say, you can read the Foreign Assistance Act, in any given year, they were passed and you can find out just about what they say. They are a little more spelled out in detail but that is what they say. They say if we give you any foreign grants, you will abide by these terms. That is what it says. Then we can't give them any unless we come back to the Congress, justify the program, get the authorization and get an appropriation.

Senator ERVIN. They don't anticipate that Congress would trouble the executive department very much while the executive department was carrying out prior authorizations, do you?

Mr. BUZHARDT. I think it could-I think if you made these things -for instance, on sales agreements, if you make sales agreements conditioned for 60 days, I think you would seriously impair the sales program. The commercial world just doesn't abide, and this is a commercial type transaction, doesn't abide that kind of time. Time is often of the essence. In fact, we now get letters from Congress, most of them from individual Congressmen, imploring us to hurry up on most of our military sales agreements. Move faster.

Senator ERVIN. Well, I quite understand none of us like to have any laws that apply to us, and I understand the executive branch's opposition to any legislation which really would make effective the powe powers which Congress has to supervise the carrying out of the Îaws. I think it is a natural reaction. I don't like any laws that put any obligations on me, and I have been struck ever since I have been in Washington with the fact that the executive branch doesn't like congressional limitations.

Mr. BUZHARDT. I agree, Mr. Chairman, that we don't like limitations but I would disagree with you as to whether this bill would make a congressional act effective. I think it would be more likely to make it ineffective.

Senator ERVIN. Well, you have given us a very helpful and very illuminating and very comprehensive view of the subject to which the bill relates, and I want to thank you again.

Mr. BUZHARDT. Thank you, Mr. Chairman. It was a pleasure to be here.

Senator ERVIN. The record will be kept open for 10 days for further insertions.

(Whereupon, at 12:45, the hearing of the subcommittee was concluded.)

BIOGRAPHICAL INFORMATION-J. FRED Buzhardt, Jr.

J. Fred Buzhardt, Jr., was nominated by President Richard Nixon to be General Counsel of the Department of Defense on August 5, 1970, was confirmed by the United States Senate on August 13, and took the oath of office for the position on August 20.

Mr. Buzhardt, at the time of his appointment, was serving as Special Assistant to the Assistant Secretary of Defense for Administration. He also served as Special Assistant to the Chairman of the Blue Ribbon Defense Panel from June 30, 1969, to June 30, 1970.

As General Counsel, Mr. Buzhardt will be the chief legal officer of the Department, responsible for all legal services performed with and involving the Department of Defense.

Born in Greenwood, South Carolina, on February 21, 1924, Mr. Buzhardt attended Wofford College, Spartanburg, South Carolina. He graduated from the U.S. Military Academy with a Bachelor of Science degree in Military Engi

neering in 1946, and received an LL.B. degree from the University of South Carolina in 1952.

Mr. Buzhardt served in the U.S. Army Air Corps from October, 1942, to July, 1943, and the U.S. Air Force from 1946 through 1950 as a First Lieutenant.

Mr. Buzhardt practiced law in McCormick, South Carolina, from 1952 through 1958. From 1958 through 1966, he served on the staff of Senator Strom Thurmond. He resumed his private law practice in 1966 and maintained his general practice until he joined the Department of Defense.

Mr. Buzhardt resides with his wife, the former Imogene Sanders, at 3817 Prince William Drive, Fairfax, Virginia. They have four children-Linda, 22; Joe F., III, 19; George, 17, and Jill, 15.

APPENDIX

[From the Congressional Record, vol. 117, No. 11, Feb. 4, 1971]

S. 596-INTRODUCTION OF A BILL RELATING TO EXECUTIVE AGREEMENTS Mr. CASE. Mr. President, I introduce for appropriate reference a bill requiring the transmittal of all executive agreements to the Congress within 60 days of their execution.

In the closing days of the 91st Congress when I originally introduced this bill, it had become abundantly clear to me and, I believe, to many of my colleagues that one of the major deficiencies in our relationship with the executive branch which must be remedied is that of congressional access to the terms and conditions of this Nation's nontreaty agreements with foreign nations. Only with such full knowledge, which my bill is intended to provide, can the Congress carry forward the systematic and continuing review of U.S. commitments which was pioneered by the Symington Subcommittee on U.S. Security Agreements and Commitments Abroad during the session just past.

I hope that the executive branch soon will provide its formal response to my bill and I trust that the Committee on Foreign Relations shortly thereafter will begin consideration of this potentially far-reaching measure.

Fourteen years ago the Senate approved a similar measure introduced by former Senator William F. Knowland, but it was not subsequently voted upon by the House. It is now time for the Congress to complete this action previously begun.

The PRESIDING OFFICER (Mr. FANNIN). The bill will be received and appropriately referred.

The bill (S. 596) to require that international agreements other than treaties, hereafter entered into by the United States, be transmitted to the Congress within 60 days after the execution thereof, introduced by Mr. Case, was received, read twice by its title, and referred to the Committee on Foreign Relations.

S. 596, 92nd Cong. second sess.

A BILL To require that international agreements other than treaties, hereinafter entered into by the United States, be transmitted to the Congress within sixty days after the execution thereof

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 1, United States Code, is amended by inserting after section 112a the following new section:

"§ 112b. United States international agreements; transmission to Congress "The Secretary of State shall transmit to the Congress the text of any international agreement, other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Commit

80-847-72-23

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