In article II, section 2, they meant important matters. They did not mean every trivial little thing that came along. They had in mind, obviously, important matters that involved what I think the "national commitments resolution" covered.

Senator ERVIN. Certainly the treatymaking power by its very constitutional terms implies that there must be an agreement on the part of both the Executive and the Senate to make a treaty.

Senator FULBRIGHT. That is right.

Senator ERVIN. And it is impossible to ever get a treaty without the entire cooperation on both sides.

Senator FULBRIGHT. That is correct.

Senator ERVIN. Perhaps that is the reason. It explains why the Executive is so desirous of making treaties through a process in which they can ignore the Senate.

Senator FULBRIGHT. That is correct.

Senator ERVIN. It seems to me that article II, section 2, clearly contemplates that any agreement of any considerable substance between the United States and any foreign nation is to be cast in the form of a treaty first negotiated by the President and then submitted by the President to the Senate for ratification or rejection. Senator FULBRIGHT. That is correct.

Senator ERVIN. The Constitution, itself, does not mention executive agreements, but the Constitution does provide that treaties shall be the supreme law of the land, along with acts of Congress, and it especially provides the most important duty of the President is to see that the laws are faithfully executed.

Senator FULBRIGHT. That is correct.

Senator ERVIN. I think we can all agree that executive agreements, when they are properly restricted to useful functions, are helpful tools which enable the President to execute laws which are either in the form of treaties or in the form of Acts of Congress. That is about the extent to which they can be rightfully or constitutionally applied.

Senator FULBRIGHT. I think you state it very well. There has to be the use of some common sense in drawing the distinction between matters of consequence and importance, and trivial matters. Certainly, it need not be every trivial agreement or administrative arrangement.

The Constitution gives the President the power to receive ambassaders. He does not have to have approval to receive the ambassador from country X. Of course, in a sense, that is an executive agreement. It is implicit in that type of operation. In that sense, by a tacit deduction from our powers, you get some limited recognition of executive agreements, I think, although not specifically called that.

However, not only from the Constitution, but clearly from the background of the discussions in the Constitutional Convention, of the war powers in particular and of the nature of the power of the legislature versus the President, it was obvious when it came to using our troops and committing the country to a war with a foreign country, which is involved in many of these troop arrangements, the Founding Fathers clearly thought that was a matter of the highest importance and the Congress should play a part.

This bill is not unrelated to the war powers-the power of the Congress and the significance of that is very clear in the constitutional debates, the discussions on this subject.

Senator ERVIN. The more I study the Constitution, the more I am beguiled by the magnificence of the document on the war powers.

It seems to me the Constitution makes a clear distinction between what might be called an offensive war and what might be called a defensive war. The division of the Constitution, giving the President power to initiate war, is directed to a defensive war, because under the Constitution, article IV, section 4, and the last clause of the article I, clearly contemplates that there is a duty to repel an invasion by another country. In any other kind of a war, the President really has no right to initiate it without the consent of Congress.

Of course, this all goes into so many of these executive agreements which are made in connection with the carrying on of war.

Senator FULBRIGHT. Creating conditions that lead to war. The Spanish ones, especially the very words of the former chairman of the Joint Chiefs, create a situation that exposes us to war by an executive agreement. Not only that, a secret one, secret at least at the time it was signed. Absolutely no effort at consultation. Even the existence of the terms of that agreement was found, really, by a very resourceful newspaper reporter. The executive branch goes to great lengths to keep the Congress and keep the Committee on Foreign Relations from knowing what is going on, in many instances.

Senator ERVIN. We hear a great deal lately about the inherent power of the President. We heard, for example-it is not in the field we are discussing that the President has an inherent power to engage in electronic surveillance of citizens suspected of what they call, by loose term, "domestic surveillance," and the President has the power to set aside the requirements of the fourth amendment. I found myself unable to accept that concept.

The powers of the Presidency, as claimed by the executive branch, are constantly expanded. Personally I think that one of the main purposes of the Constitution of the United States, was to deny any branch of the Government-legislative, the judicial, or the executive from being able to claim it has any inherent powers.

In other words, I think all of the powers any branch of the Government has are either expressly stated in the Constitution or are implied from the powers expressly stated. Otherwise, there would be no use to write a Constitution if the executive branch could reach up in its imagination and pluck out powers that are not even mentioned in the Constitution.

Senator FULBRIGHT. I fully agree with the Senator. I think what has contributed to this growth more than anything else has been the long engagement in warfare and crises since World War II. There has been a decided change, it seems to me, in the attitude of the executive branch, beginning during what we call the Cold War immediately after World War II. There has been a gradual enlargement. It feeds on itself.

An executive branch official makes a statement-the Secretary of State, or the Attorney General-and the next one comes along and uses it as a precedent for the next one, and the next one, and it has proceeded thus during the last 25 years.

Senator ERVIN. You and I have both heard Secretaries of State of both political parties appear before congressional committees and claim that the country had committed itself to a course of action in respect to some foreign country, either by a statement somebody made orally, or by a letter that had been written.

The "National Commitments Resolution," which you offered, I think correctly described what should be a national commitment, and it certainly defines a national commitment as something that would be entirely in harmony with our constitutional system of government, instead of repugnant to it.

I want to thank you for your very fine statement and for the suggestions you make about some changes in the substance and the phraseology of this bill. This bill is a blueprint for discussion. It is a very difficult field to legislate in, to get exactly the right expressions, and the suggestions you have made are very thoughtful and certainly are worthy of our consideration.

Senator FULBRIGHT. Thank you very much.

Could I make one comment on Mr. Clifford's statement this morning? He is a very able lawyer and I read his statement with great interest. I certainly in no way would like to denigrate it in any way. I only want to make a comment.

I do not think what I have to say is contrary to what he said, but there was one paragraph in his statement that I just want to raise a question about because he is a man of great prestige, and, rightfully so, having been in effect a board member of the executive and also a great lawyer.

I would like to make a point about his paragraph which reads as follows:

Is there any difference, then, between a treaty and Executive agreement? My answer is in legal force and effect, a properly concluded Executive agreement supported where necessary with implementing legislation is tantamount to a treaty.

While this statement standing alone, and as he says, in legal force and effect, may be accurate, I fear that those advocates of unrestricted Presidential power may seize upon it to justify a further perpetuation of the exclusion of Congress from the decisionmaking process in this field.

Is it wise; is it within the spirit or the letter of the Constitution that a commitment of our Nation's manpower, resources and on behalf of another nation's security, should be made without the commitment being approved by two-thirds of the Senate of the United States?

If one grants the validity of this statement, restricted as it is, there remains a very difficult question:

It is my view-this is a little repetitious that such a solemn and far-reaching exercise of power is not according to the intents and purposes of the men who created our constitutional system of government. I believe they would be appalled by the proposal. An agreement made solely by the President, with a foreign nation, probably in secret, committing our country to defend a foreign nation with our troops, should be considered consistent with the Constitution which they adopted.

Senator ERVIN. I share your views. To my mind it is inconceivable that the Founding Fathers would have taken the trouble to spell

out in article II, section 2, exactly how a treaty should be made-to require that it be submitted to the Senate for ratification or rejection, and to require two-thirds of the Senate to vote favorably before it would become effective-and at the same time to have an inherent power in a President, one man, to make an agreement with a foreign nation without any formality and not consulting with anybody but himself.

Senator FULBRIGHT. That is right. Of course, I agree with you. I hesitate to say this because, strictly speaking, what was stated applies to some situations. What Mr. Clifford said, of course, was true, and I would have no objection to it. But, standing alone, I could see the next Secretary of State going back and saying, "Well, this was said in the hearings," and so on, "it was tantamount to a treaty."

The same kind of language-I am reminded that former Attorney General Katzenbach used before the Foreign Relations Committee some years ago. I wanted to clarify this point.

Senator ERVIN. I am glad you did because his statement was very much qualified by his expression, "when it is legislatively implemented."

Senator FULBRIGHT. That is right.

Senator ERVIN. If you take that expression out of his statement, it has quite a different meaning.

Senator FULBRIGHT. I have had it happen to me so often. The qualification is just taken out and the one sentence is cited, and that is what they say Mr. Clifford said. I think if you read his whole statement, it is clear what he meant.

Senator ERVIN. I share your admiration for Mr. Clark Clifford, for his great services to the country, and his great ability as a lawyer, but I did take issue with the unlimited meaning he attached to the term "Executive." I said, of course, the Constitution says the President is the Executive Officer of the United States, but it takes and spells out in article III what the Executive Officer of the United States is allowed to do. It does not leave it solely to his judgment or some kind of unwritten law or some kind of inherent power, in my judgment.

Professor Miller would like to ask you some questions.

Professor MILLER. Sir, I have just one question, if I might. I think the subcommittee, and I am sure your committee is often faced with the proposition, that when you interfere with the Executive in the way that this bill purports to do, you unduly hamper the conduct of foreign affairs in this age of nuclear warfare with the need for speed and flexibility, and so on.

I think it would be helpful to get your comments on whether this bill would be undue interference with the Executive.

Senator FULBRIGHT. Well, Mr. Miller, I confess, maybe I am biased, but I think maybe some of the decisions that have been made have been taken with undue haste and minimum consideration. And it seems to me the Constitution was intended, as the chairman said, to prevent that.

The ongoing process of excluding the legislation from participation in decisionmaking in this field is, I think, the root of the evil, assuming, as I believe, we all do believe in our constitutional system.

What has happened is that in these most serious decisions involving warfare by our country, which I feel is the fundamental reason we are in such difficulty today, the Congress has effectively been excluded.

I do not want to excuse the Congress for being a participant in this process, because we have been very negligent in many cases and I confess I certainly have. I did not recognize at the early stage what was going on. This has been a gradual process. Executive officials were usually confronting us with a so-called crisis and we did not recognize just how far it was going.

In a sense that is exactly what we want to do: To hamper the Executive from employing improvident and unexplained and undigested ideas, if it would result in the commitment of our country to these disastrous adventures.

So, in that sense I accept the idea it is intended to do that. I believe there is great merit in public discussion of these issues. Public in terms of discussion in the Congress. Being a country of 200 million people, we cannot have a town meeting. The major vehicle for such discussion is the Congress, and then the commentators and the press growing out of those debates. And this is essential, it seems to me, if we are to avoid, insofar as possible, making serious mistakes. Where the mistakes are made, in my opinion, is in the making of grave decisions without adequate adversary discussion of the issues involved.

At times the Chief Executive may be right, of course, but it would take an inspired genius always to be right acting alone, with just one or two men thinking about it in the recesses of Camp David or the White House.

George Reedy discusses this process very well. He says it is not only that there is no public discussion-there is no discussion in the Congress. He lived there in the White House for a number of years and he said also that there is no real adversary discussion within the executive branch because no one dares take issue with the President.

And I think he says it correctly. The President, isolated as he is, is not even given the advantage of an adversary discussion, even among his own colleagues because none is his peer, none has a political base-so they all contrive to find reasons to agree with the President's point of view.

So the whole process of decisionmaking is insulated from serious discussion by different minds. And the whole value, it seems to me, of our constitutional system is the exposure of important issues to adversary discussion, the play of 535 minds plus, of course, the experts outside, such as yourself and others who are connected with or interested in the legislative process.

So I think that is the weakest of all arguments against this bill. If this bill will promote a further consideration and discussion of these important decisions, that is just great.

Professor MILLER. Thank you, sir.

Senator ERVIN. The truth of it is, the Constitution was written to interfere with all branches of the Government to a certain extent.

Senator FULBRIGHT. The purpose was to prevent arbitrary rapid decision taken by any President, just as the Founding Fathers had