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.

Senator FULBRIGHT. I thank the Senator for those comments and I certainly agree with him. As I said before, I, certainly, and I know the whole committee welcomes the Senator's efforts in this respect. I am sure we could not succeed without his assistance.

Having said that, Mr. Chairman, I must admit very serious reservations about the concept in section 1(b) of the bill that any executive agreement would come into force with respect to the United States unless both Houses of the Congress within a 60-day period. pass a concurrent resolution disapproving the agreement. The House of Representatives, at least until very recent days, appears to have maintained a distinctly different view of international affairs than that held by the Senate. This has been true in varying degrees with respect to such vital questions as the Indochina war, foreign assistance, multinational institutions, relations with communist countries, and the use of military force in general. I am not insisting that the Senate position is always correct; nor am I stressing the primacy of this Chamber in the foreign policy field. However, I do believe that this provision could be a prescription for a stalemate which would permit virtually every executive agreement to receive the tacit approval of the Congress. This result would, in my opinion, amount to à subversion of article II, section 2 of the Constitution.

Rather than leave this provision unchanged, I would recommend the exact reversal of its substance, so that a concurrent resolution would be required for approval of each agreement. However, I recall the testimony of the State Department legal adviser that the United States each year enters into roughly 299 new international agreements other than treaties. Doubtless a number of these are of trivial importance. Furthermore, I suspect few of us would want to pass a resolution for each Public Law 480 arrangement or each educational exchange agreement.

As a compromise between these two positions, therefore, I suggest amending section 1(b) to make it possible for either body, through a Senate or House resolution, to state in substance that it does not approve the exceutive agreement. The prohibition against the agreement coming into force would remain unchanged in that section. But section 3 would have to be recast in order to accommodate the substitution of a unicameral resolution for a current one. In this connection, I would give some thought to a strict requirement that a record vote take place on each such resolution.

The root of my problem with S. 3475 as drafted nevertheless goes to the language of section 2 containing the definition of the term "executive agreement." It is my view that this definition is entirely too broad; indeed, so broad that the executive branch would be encouraged to employ the device with increasing frequency and to cast the significance of treaties and international conventions further into the shadows. Even with the change regarding the nature of a resolution suggested above, if the definition in S. 3475 is left intact, the executive branch would still gravitate toward expanded use of the agreement technique. For a resolution prohibiting enforcement could be rejected by a simple majority, whereas a treaty requires a positive two thirds vote of the Senators present.

At this point we come squarely up against the challenge to substitute a different definition from that contained in S. 3475. As I sug

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gested earlier in this statement, Senate Resolution 85, the national commitments resolution, approved on June 25, 1969, appears to me to be one essential ingredient in the equation. Another source of appropriate language might well be an adaptation of the Department of State 1964 standards for its circular 175 procedures, which provide:

that the executive agreement form is used only for agreements which fall into one or more of the following categories:

(a) Agreements which are made pursuant to or in accordance with existing legislation or a treaty;

(b) Agreements which are made subject to Congressional approval or implementations; or

(c) Agreements which are made under and in accordance with the President's constitutional power.

Thus I might suggest a tentative formula reading along the following lines:

For the purposes of this Act, the term 'exectuive agreement' means a bilateral or multilateral international agreement other than a treaty-excluding diplomatic notes and administrative arrangements which do not bind the Congress to take specific actions-made pursuant to or in accordance with existing legislation or a treaty. However, an "Executive agreement" cannot of itself constitute a "national commitment", which means the use of the Armed Forces of the United States on foreign territory, or a promise to assist a foreign country, government or people by the use of the Armed Forces or financial resources of the United States, either immediately or upon the happening of certain events, and which results only from affirmative action taken by the Executive and Legislative Branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment. Nothing in this definition shall be construed as diminishing the requirement that a highly significant international agreement be negotiated in the form of a treaty, or as decreasing the categories of agreements which are made subject to congressional approval.

Reasonable men may differ on occasion about what constitutes an important international agreement. On the other hand, just a little less than 2 years ago we had a confrontation between the Senate and the executive branch over the issue of the Spanish base agreement— which by any stretch of the imagination one could not describe as anything but a highly significant international agreement. The arguments of the executive branch were that since the original 1953 agreement was not a treaty, and since there was no clear undertaking by the United States to defend Spain, the executive agreement form should again be employed. In my rejoinder, I pointed out that one could describe the direct and indirect costs of the Spanish agreement as near $400 million over 5 years. I also stressed the notable statement of November 1968, by the then Chairman of the Joint Chiefs of Staff, Gen. Earle G. Wheeler, who said:

By the presence of the United States forces in Spain the United States gives Spain a far more visible and credible security guarantee than any written document.

That, Mr. Chairman, if I may interject, is one of the major reasons why the Foreign Relations Committee really became exercised about this use of executive agreements. The truth of the matter is many of us were not aware, and had never been made aware, of the full terms of the preceding agreement.

Our suggestion that there be public discussion of the proposed Spanish agreement—if not specific Senate approval in terms of a

treaty-merely stimulated the executive branch to conclude the executive agreement with what could only be regarded as unseemly haste. As a result, the distinguished senior Senator from Idaho, Mr. Church, introduced Senate Resolution 469, which declared that the executive agreement represented no national commitment to Spain of any kind. This was approved both by the Foreign Relations Committee and by the Senate as a whole with overwhelming support. The episode clearly showed the urgent need for greater executive branch cooperation, and the difficulties of operating our constitutional system in the absence of such cooperation.

I say that because, in spite of the passage of that resolution, the statement of General Wheeler, as a very practical matter still remains, I think, indicative of a prevalent executive attitude.

Descending abruptly from this high level of substantive generalization, I have a further suggestion for a technical change in the last sentence of section 1(a) of the bill. My proposal would have the sentence, with deleted material within brackets and new words underlined, read as follows:

Each committee shall personally notify the members of its House that the Secretary has transmitted such an agreement with an injunction of secrecy, and such agreement shall thereafter be available for inspection by such members only in the offices of the Committees.

This very minor change is in keeping with our prevailing tested and successful regulations for handling classified information.

I have one additional thought about S. 3475 which I would prefer to present in the form of an idea, rather than as a suggested amendment. It concerns the lending operations of the Export-Import Bank, which have recently been taken out of the budget and which receive congressional scrutiny only well after the fact. As evidenced by the Azores agreement-in which Export-Import Bank credits of up to $400 million are provided for-the executive branch is apparently using the Bank for purposes which have broad foreign policy implications.

May I interject there to say my concept of the original purpose of the Export-Import Bank was not in this broad foreign policy field, although it certainly could affect it, but it was to promote the export of manufactured articles and other goods and all articles of this United States, in order to improve our balance of trade. The Bank was never anticipated to be used as a prime tool for shaping the direction of foreign policy, especially as in the case involving military bases, et cetera.

Indeed, through the use of the Bank, OPIC, and other instruments, the administration can conduct a very sizable foreign aid program without going through the usual foreign assistance authorization and appropriations process. The Bank, in particular, which receives funds through the Treasury by what is commonly referred to as "back-door financing," is really almost exempt from congressional control. Perhaps this is what a majority of members want, but I doubt such a proposition. We might, therefore, give consideration to a requirement that any Export-Import Bank loan or credit, or any series of loans in one fiscal year, relative to any individual foreign country amounting to more than a clearly reasonable total should be submitted in the form of an executive agreement subject to the terms of S. 3475.

Mr. Chairman, let me say again how much we value your leadership and judgment in this area. I believe you are doing us all a service by focusing attention and debate on a vital constitutional problem neglected for all too long a period. In this connection, I would like to quote a very pertinent observation made during the hearings on S. 596 by another great authority on our Constitution, Professor Alexander Bickel:

Executive agreements which lie in the "zone of twilight" between Presidential and legislative powers are of obvious concern and legitimate interest to Congress in the exercise of the function assigned to it by the Constitution. For the "zone of twilight" may be occupied by Congress at will; that is the significance of it. It exists, and independent Presidential power can exist within it, only by Congress' leave, or because of the inertia of Congress. It is redefined or it vanishes whenever Congress chooses to act. What Congress may act on, it can require to be informed about.

In conclusion, Mr. Chairman, having such deep respect for the Constitution, I think that a "national commitment" involving the use of the Armed Forces on foreign territory should be created by the treaty process, as required by the Constitution in article II, section

2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.

National commitments of lesser solemnity and risk involving only substantial material resources of our country may be approved by statute or Concurrent Resolution of the Congress. Relatively insignificant matters of an administrative or routine character may properly be made by executive agreements. A clear-cut, unquestionable distinction between significant and insignificant matters would be difficult to legislate precisely. The principle that matters of great importance to the life of the Nation should be dealt with only by treaty can be applied in specific factual situations only by reason and common sense.

Thank you very much, Mr. Chairman, for hearing me.

Senator ERVIN. I take it, Senator, that you consider that the power of foreign relations is a shared power; that is, a power which is shared between the President and the legislative branch of the Government, and the Senate in particular?

Senator FULBRIGHT. Indeed, I do.

Senator ERVIN. Certainly, a shared power requires the cooperation of all who share it in order to exert that power in the best interest of the Nation.

Senator FULBRIGHT. I agree, Mr. Chairman. You state it very well. You properly say "cooperation." In this field it seems to me what we are trying to do is not coerce anybody, we are trying to persuade the Executive for the good of the Nation that we must have cooperation. That is why we ran into great difficulty, as I tried to explain. The statement of the principle is fairly easy to do, but to draw the line precisely is extremely difficult. You have to rely upon mutual respect between the executive and the legislative branches and application of common sense in making these distinctions. And what I think has been happening, they have been reversing the traditional process that I believe the Founding Fathers had in mind.