Mr. CLIFFORD. Yes, I think that is true. But if the President of the United States has the power to recognize a foreign authority, and I think we can agree on that, then I think that this other power would follow logically. And with reference to the settling of claims, I think that would be a concomitant of his ability and right to exercise the power of recognition.

Professor MILLER. There are problems of the boundaries. I think it is an unsettled question. Would you agree that it is an unsettled constitutional question so far as definitive Surpeme Court decisions. are concerned?

Mr. CLIFFORD. I would agree to that. And what I am doing is giving my opinion. The powers of the presidency, under modern conditions, have to be maintained and preserved. At the same time, I am suggesting my support for this legislation. I am not saying that this interferes constitutionally with that power. What I am suggesting is that this bill will assist in giving the public information on matters that I think should be public information and which, in many instances heretofore, have not been.

Professor MILLER. All right, sir.

I would like to get to some of the policy aspects of this as well. Before I do, I think it is fair to make just a statement concerning the concurrent resolution. President Roosevelt published a posthumous note of his agreement with your position on that. I think it is fair to say that there is no definitive Supreme Court case on whether a concurrent resolution can supersede an act of Congress or not.

Mr. CLIFFORD. The logic would be against it, would it not? Suppose the Congress passes a law, and it then gets the President's signature, and then suppose there is but one simple act to perform under that law. I am making it easy. And the President performs that one simple act under the law, and then under this bill his action is sent up here, and within 60 days, by concurrent resolution, the Congress disapproves of his act.

What it is really doing is overruling past legislation by a concurrent resolution. I think the logic of that is poor.

Professor MILLER. All right, sir. The suggestion has been made, when the bill was first introduced by the Senator that this is an undue impediment on Executive power. It occurs to me that this is a rather innocuous interjection that Congress could make in this area. In your opinion, are the provisions of this bill so stringent that it would unduly hamper the Executive?

Mr. CLIFFORD. I do not consider it unduly stringent, but I certainly do not consider it the mildest action that the Congress could take.

The Case bill is much milder than this. The Case bill merely provides that the President, after having entered into an executive agreement, shall merely inform the Congress by filing it with the Congress, and they have no authority to take action with reference to it. I believe that the present administration is likely to disapprove heartily of this legislation. I think any number of Presidents, maybe most Presidents, would disapprove of this legislation. So I do not think it is particularly mild, when you consider that for years a President has had almost sole discretion as to whether he will utilize

the treaty route, or whether he will adopt the executive agreement route.

And in most instances, because it is so much easier, he adopts the executive agreement route. That is one reason why we are in the trouble we are in.

Now this bill says to the President, "You no longer can do that in most instances. You no longer have that discretion. You no longer can cut the Congress out of the decisionmaking process." This is so because with most executive agreements, leaving out those which he has the inherent power to execute, you must send those executive agreements to the Congress, and then for the first time in the history of this country the Congress shall have the right to disapprove of them. I consider it very substantial legislation.

Professor MILLER. Sir, in your experience, then, as Secretary of Defense, an adviser to several administrations, would it be a major or undue impediment on the conduct of our foreign affairs, in your judgment?

Mr. CLIFFORD. It will be an impediment in the conduct of our foreign affairs. It will not, in my opinion, be an undue impediment. But, my point is this: The advantages of this legislation, in my opinion, far outweigh the disadvantages that might inure to an administration as it goes about its business, and those advantages are that the people would know more about what is going on in the formulation and carrying out of our country's foreign policy.

Professor MILLER. Thank you, sir. No further questions.

Senator ERVIN. When I had the privilege of sitting on the North Carolina Supreme Court, we had quite a legal controversy between two parties as to the meaning of an opinion which our chief justice had written. After listening to the argument, he said that the brethren had read the same book but they had drawn different conclusions. Similarly, I am compelled to say that I draw different conclusions from my reading of the Constitution. The fact that the Constitution says that the President is an executive officer of the Federal Government does not give him an inherent Executive power. My position is that the Constitution spells out in detail what his powers are as executive officer of the Federal Government.

Also, the supremacy clause of the Constitution says that this Constitution, and the acts of Congress passed pursuant thereto and treaties made on behalf of the United States, shall be the supreme law of the land. It does not say executive agreements.

I think that the chief executive officer has to execute treaties and acts of Congress, and, therefore, I think he has authority to make executive agreements which implement or carry out the terms of treaties or carry out the terms of acts of Congress.

I will have to concede that the Pink case and the Belmont case do not seem to coincide with my sound views on this subject. But I still maintain that the Supreme Court is like Homer in that it occasionally nods, too, and makes mistakes. I think that if the Supreme Court would interpret the Constitution correctly, especially the supremacy clause, it would have to say that the President could not make an executive agreement such as in the Pink and Belmont cases, amounted to an exercise of lawmaking power because they superseded the State law.

One of the great things about this marvelous document is that it sometimes affords, I think, grounds for very, very interesting debate. Mr. CLIFFORD. I might suggest, Mr. Chairman, in that regard, I think your bill proceeds in the right direction because you and I might discuss at great length at our different views of what the Supreme Court cases mean, but I think your bill cuts through that debate and recognizes the existence of executive agreements. Your bill, in effect, says to the President, "Take us in on it; take the Congress in; go ahead and make executive agreements, but give us the right to study them." Many of them will just be routine, but there will be key agreements that occasionally come up that the Congress might disagree on, and it can then act on them.

I might make what I consider to be a practical suggestion. I believe if this bill becomes law, you would want to establish a joint staff of experienced individuals in this field so that the executive branch of Government could send executive agreements to that staff. Perhaps 18 out of 20, or 20 out of 30 would be routine, and you would not have to bother with them. They would not come up by the truckload, but they will surely come up by the cartload. In the Defense Department they enter into them by the hundreds.

Most of those will be routine. So, if you have an intelligent, able staff, they can winnow through this great mass and pick out the ones that the Congress should look at, and in that way I think a signal would be performed.

Senator ERVIN. Well, I certainly think that, regardless of whether or not executive agreements fit the Constitution in all respects, that, as you point out, we have had some disastrous policies resulting from the use of executive agreements. It is well to see if we can do something to minimize the danger which comes to the country from policies of that nature. This bill's purpose is to do something constructive in that field.

Your last suggestion is one that permits very thoughtful study about how this bill, if it is enacted, should be implemented-what procedure should be adopted to make it operate with the least detriment to the carrying on of the Government while at the same time promoting, as far as possible, the national security against unwise executive agreements.

Mr. EDMISTEN. Mr. Clifford, would you say that the recent agreements between the United States and the Azores and Bahrain should have had the attention of the Congress? Those were not routine matters, were they?

Mr. CLIFFORD. I would have to say that I am not particularly concerned about those agreements. If I had my wish, I would have preferred that they be sent to the Senate as treaties, but I am not aware of any deep significance in either the Azores agreement or the Bahrain. They have been in existence before.

Certainly the Azores agreement could be justified by the fact that Portugal is a signatory to the NATO Treaty, and that the authority existed under NATO.

In Bahrain we went in and replaced the British.

The value of this bill is, that even if they were entered into as executive agreements, under this legislation the Congress would still get a look at them. It takes that discretion away from the President,

and I think rightfully so, and gives the Congress a greater part in policy determination.

Senator ERVIN. Did you have questions?

Mr. ABRAMSON. Yes; just one question. On page 2 of the bill it discusses what I think is important about the public disclosure in the area of national security, and it says if in the opinion of the President, such an agreement should be adverse to the national security it would be viewed only in camera by the respective committees, and that seems a very wide delegation of discretion. I suppose my question to you is: Do you think that could be abused, and does it serve the end objective of getting the public informed, because we could, perhaps, have the same problem of having the Congress view these things and never ever have the public view them?

Mr. CLIFFORD. You must start with the premise, that in the conduct of foreign relations today, there have to be secret agreements. I do not believe that our country could conduct its affairs today without entering into secret agreements. The world is in that posture at the present time, and I think that Congress must be inordinately careful not to encroach upon that.

I read that part of the bill with care. I thought it wisely drawn. When a President thinks that a certain agreement must remain confidential, he so informs the proper committees of the Senate and the House and the two Houses must keep it confidential.

Now, I suggest it places a very real responsibility upon the Members of Congress, because if this bill became law and there were instances in which executive agreements were sent up that were highly secret, and highly sensitive and delicate, and leaks took place in the Congress, the results could be disadvantageous to our country.

So, it does increase the responsibility of Congress. As we all know, there is the oft-repeated statements that it is difficult to keep a secret in Congress. However, our outstanding disclosures lately, interestingly enough, have not come from the Congress. The Pentagon papers, for example, came from the executive branch of the Government, and the interesting colloquies that involved India and Pakistan did not come from the Congress.

So, perhaps both branches of Government must be more careful of the manner in which they conduct their business.

Mr. ABRAMSON. Thank you.

Senator ERVIN. Thank you very much. You have given a very thoughtful and very helpful statement to us, and we are greatly indebted to you for it.

Mr. CLIFFORD. Thank you very much.

BIOGRAPHICAL INFORMATION-CLARK M. CLIFFORD

Born in Fort Scott, Kansas, December 25, 1906, son of the late Frank Andrew Clifford and the late Georgia (McAdams) Clifford. Shortly thereafter the family moved to St. Louis, Missouri.

Attended public schools and then went to college and law school at Washington University in St. Louis, graduating in 1928.

Entered the practice of law in St. Louis in 1928 in association with Jacob M. Lashly.

Volunteered for service in the United States Naval Reserve in 1943, and received commission of Lieutenant (j.g.) Served as special assistant to Commander, Western Sea Frontier, later as assistant Naval Aide to the President, and as Naval Aide to the President.

Separated from the Service in 1946 with permanent rank of Captain. Appointed Special Counsel to the President of the United States in June, 1946 by President Harry S. Truman. Served in that capacity until February 1, 1950.

In 1945, President Truman assigned him the task of conducting a study in depth of the unification of the Armed Services. He worked with the War Department, the Department of the Navy, other departments and agencies involved, and the Congress for two years thereafter. There finally resulted the passage of legislation in 1947 entitled "The National Security Act." He was one of the principal architects of this legislation.

Thereafter, he served as liaison between the White House and the new Secretary of Defense.

Again in 1949, he worked with the Secretary of Defense, other departments and the Congress to obtain passage of the "National Security Act Amendments of 1949", which greatly strengthened the authority of the Secretary of Defense and changed the national military establishment into a regular executive Department of Defense.

On February 1, 1950, he resigned as Counsel to the President and established a law firm in Washington, D. C. under the firm name of Clifford and Miller.

In 1960, he served as a member of the Committee on the Defense Establishment, appointed by Senator John F. Kennedy to survey the organization, management and administration of the Defense Department. This committee was chaired by Senator Stuart Symington.

Between November, 1960 and January, 1961 he represented President-elect Kennedy in the transition period involving the take-over of the Executive Branch of Government from the Eisenhower Administration.

In May 1961, President Kennedy appointed Mr. Clifford a member of the President's Foreign Intelligence Advisory Board. In April 1962, Dr. James Killian of M.I.T. resigned as Chairman of the Board, because of ill health, and Mr. Clifford was appointed Chairman by President Kennedy.

In 1965, Mr. Clifford made a trip to the Far East and visited certain countries in his capacity as Chairman of the Intelligence Board.

In 1966, he served as an advisor to President Johnson at the Manila Confer

ence.

In 1967, Mr. Clifford and General Maxwell Taylor visited a number of Southeast Asian and Pacific countries as personal emissaries of President Johnson.

On January 19, 1968, President Johnson nominated him to be Secretary of Defense. On January 30, 1968, he was unanimously confirmed by the United States Senate. On March 1, 1968 he was sworn in as Secretary of Defense of the United States.

Mr. Clifford served as Secretary of Defense until January 20, 1969, after which he returned to the practice of law in Washington, D. C. as senior partner of the firm of Clifford, Warnke, Glass. McIlwain & Finney with offices at 815 Connecticut Avenue.

Mr. EDMISTEN. Mr. Chairman, the next witness is Dr. James A. Robinson, the president of Macalester College. Is Dr. Robinson here? Senator ERVIN. I want to welcome you to the subcommittee and express our deep appreciation for your willingness to come and give us the benefit of your study, observations, and views on this very important question.

STATEMENT OF JAMES A. ROBINSON, PRESIDENT AND PROFESSOR OF POLITICAL SCIENCE, MACALESTER COLLEGE

Dr. ROBINSON. Thank you very much, Mr. Chairman. I appreciate your invitation to offer my views on your proposals today.

As one who is in his first year of a college presidency-on the campus where your colleague Senator Humphrey taught his latest class-I have become accustomed to taking more advice than I give.