HEARING BEFORE THE SUBCOMMITTEE ON NATIONAL SECURITY POLICY AND SCIENTIFIC DEVELOPMENTS OF THE COMMITTEE ON FOREIGN AFFAIRS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP73B00296R000400130003-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 9, 2016
• Document Release Date: July 10, 2001
• Sequence Number: 3
• Publication Date: June 30, 1972
• Content Type: OPEN

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INTERNATIONAL EXECUTIVE AGREEMENTS
HEARING
SUBCOMMITTEE ON NATIONAL SECURITY
POLICY AND SCIENTIFIC DEVELOPMENTS
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
NINETY-SECOND CONGRESS
SECOND SESSION
ON
S. 596, H.R. 14365, and H.R. 14647
MEASURES REQUIRING THAT THE TEXTS OF ALL FUTURE
INTERNATIONAL EXECUTIVE AGREEMENTS BE TRANSMITTED
TO CONGRESS
0
U.S. GOVERNMENT PRINTING OFFICE
80-010 WASHINGTON . 107Z
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COMMITTEE ON FOREIGN AFFAIRS
THOMAS E. MORGAN, Pennsylvania, Chairman
CLEMENT J. ZABLOCKI, Wisconsin WILLIAM S. MAILLIARD, California
WAYNE L. HAYS, Ohio PETER H. B. FRELINGHUYSEN, New Jersey
L. H. FOUNTAIN, North Carolina WILLIAM S. BROOMFIELD, Michigan
DANTE B. FASCELL, Florida J. IRVING WHALLEY, Pennsylvania
CHARLES C. DIGGS, JR., Michigan H. R. GROSS, Iowa
CORNELIUS E. GALLAGHER, New Jersey EDWARD J. DERWINSKI, Illinois
ROBERT N. C. NIX, Pennsylvania VERNON W. THOMSON, Wisconsin
JOHN S. MONAGAN, Connecticut PAUL FINDLEY, Illinois
DONALD M. FRASER, Minnesota JOHN BUCHANAN, Alabama
BENJAMIN S, ROSENTHAL, New York SHERMAN P. LLOYD, Utah
JOHN C. CULVER, Iowa J. HERBERT BURKE, Florida
LEE H. HAMILTON, Indiana SEYMOUR HALPERN, New York
ABRAHAM KAZI,N, In., Texas GUY VANDER JAGT, Michigan
LESTER L. WOLFF, New York ROBERT H. STEELE, Connecticut
JONATHAN B. BINGHAM, New York PIERRE S. Du PONT, Delaware
GUS YATRON, Pennsylvania CHARLES W. WHALEN, Ohio
ROY A. TAYLOR, North Carolina ROBERT B. (BOB) MATHIAS, California
JOHN W. DAVIS, Georgia
MORGAN F. MURPHY, Illinois
RONALD V. DELLUMS, California
OGDEN R. REID, New York
ROY J. BULLOCK, Staff Administrator
SUBCOMMITTEE ON NATIONAL SECURITY POLICY AND SCIENTIFIC DEVELOPMENT
To deal with all matters affecting our foreign relations that concern matters of national
security and scientific developments affecting foreign policy, including the national space
program, mutual defense, and the operation of our high strategy generally,
CLEMENT J. ZABLOCKI, Wisconsin, Chairman
WAYNE L. HAYS, Ohio PAUL FINDLEY, Illinois
ROBERT N. C. NIX, Pennsylvania WILLIAM S. BROOMFIELD, Michigan
L. H, FOUNTAIN, North Carolina VERNON W. THOMSON, Wisconsin
DONALD M. FRASER, Minnesota s ROBERT H. STEELE, Connecticut
JONATHAN B. BINGHAM, New York
JOHN W. DAVIS, Georgia
GEORGE R. BERnns, Subcommittee Staff Consultant
JOHN H. SULLIVAN, Staff Consultant
ARLENE M. ATWATER, Staff Assistant
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CONTENTS
Page
Case, Flon. Clifford P., a U.S. Senator from the State of New Jersey____ 2
Salans, Carl If., Deputy Adviser, Department of State__________________ 10
"The Legal Basis Upon Which Congress May Have a Right of Access to
the Text of All Executive Agreements," prepared by the Congressional
Research Service of the Library of Congress_________________________ 23
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INTERNATIONAL EXECUTIVE AGREEMENTS
MONDAY, JUNE 19, 1972
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
SuBoommiTrEE ON NATIONAL SECURITY
POLICY AND SCIENTIFIC DEVELOPMENTS,
Washington, D.C.
The subcommittee met at 2:10 p.m., in room 2255, Rayburn House
Office Building, Hon. Clement J. Zablocki (chairman of the subcom-
mittee) presiding.
Mr. ZABLOCKI. The subcommittee will come to order.
The afternoon the Subcommittee on National Security Policy and
Scientific Developments is meeting to hear witnesses on legislation
which would require that the texts of all future executive agreements
concluded by the President with foreign states must be transmitted to
Congress within 60 days after their execution.
More specifically, the bills under consideration are S. 596, a bill
which passed the Senate on February 16 by a vote of 81 to 0, and
identical proposals introduced in the House by Mr. Whalen of Ohio
and myself.
Mr. Whalen's bill is II.R. 14647 and mine is H.R. 14365.
The legislation is very simple :
First, it provides that the Secretary of State will transmit to Con-
gress the text of any international agreement-other than a treaty-to
which the United States is a party as soon as practicable after the
agreement has entered into force, but in no case more than 60 days
thereafter.
Second, for those agreements which must be kept secret in the na-
tional interest, the legislation provides that the President should trans-
mit those not to the Congress as a whole, but to the I-louse Foreign
Affairs Committee and the Senate Foreign Relations Committee. Those
agreements would be held "under an appropriate injunction of secrecy"
until the President gave notice that they could be made public.
The first witness before the subcommittee this afternoon is the
author of S. 596, Hon. Clifford P. Case, U.S. Senator from New Jersey.
Senator Case is a longtime member of the Senate Foreign Relations
Committee who has taken an active role in the attempt to restore the
Congress to its constitutionally ordained role in the area of foreign
policy.
Senator Case, we welcome you. It is an honor and a privilege to have
you with us today.
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STATEMENT OF HON. CLIFFORD P. CASE, A U.S. SENATOR FROM
THE STATE OF NEW YORK
Senator CASE. Thank you, Mr. Chairman, Mr. Whalen.
I wish that I could stay with you for the entire hearing. Mr. Chair-
man, I can't do that because we are actively engaged in the considera-
tion of legislation on the Senate floor and amendments are coming up
one after the other. I would like to ask the indulgence of the com-
mittee to permit my statement to be inserted in the record and to sub-
mit myself to you for any questions you might have.
I think that consideration of this bill is an excellent move on your
part. The legislation is not radical in any sense. Senator Knowland,
who was well known as a stalwart conservative in every way, and a
strong administration supporter, was the original sponsor of this bill.
20-odd years ago. While it passed the Senate, it was not acted upon by
the House.
Now, with the sponsorship of the chairman of this subcommittee and
the interest, of many in this body-plus the additional provision that
these executive agreements be sent both to the Foreign Relations Com-
mittee and the Foreign Affairs Committee of the House, properly
recognizing our equal interest-I am most hopeful that the measure
may become law.
If you have any questions, Mr. Chairman, before I must go, I would
be happy to try and answer them for you.
Mr. ZABLOCKI. Without objection your statement will be made a part
of the record at this time.
(The statement and press release of Hon. Clifford P. Case follow:)
STATEMENT OF SENATOR CLIFFORD P. CASE Or NEW JERSEY
I am extremely pleased that Congressman Zablocki has introduced in the House
my hill on the transmittal of executive agreements. I am honored that you have
asked me here today to testify in its behalf.
Since the passage of the bill by the Senate, there has been a notable change in
the Executive Branch's position.
Before, although agreeing that it had been remiss in informing Congress of
these agreements, the State Department had opposed enactment of a statute to
insure Congressional access to the terms of United States commitments. Instead,
the State Department had advocated "cooperative arrangements" to brief Con-
gress on these agreements.
Now, while still maintaining its preference for informal remedies, the State
Department has let it be known ". . . the Executive Branch will not oppose (this
hill) if Congress truly feels this is the wisest manner in which to proceed."
This recognition on the part of the Executive Branch that only Congress
can determine how it is to fulfill its own Constitutional responsibilities is an en-
couraging sign that the formerly prevailing concept of Executive dominance in
the control and making of American foreign policy may be in the process of moder-
ation.
Be that as it may, I think we should not lose sight of the fact that this offer
of cooperation in the sharing of information on executive agreements-let alone
the recognition that Congress has the right to its own decision in the matter-
only came about after the issue was raised in the Congress.
The lesson of this, I submit, is that past informal understandings, the assump-
tion that important information will be freely volunteered and shared, are neither
sufficient nor proper guarantees when a Constitutional principle is at stake.
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"GENTLEMEN'S AGREEMENT" INSUFFICIENT
Underlying the formulation of the most recent Executive Branch position on
this bill seems to be an unspoken hint that it would be boorish or ill-bred of the
Congress, once having "the handshake" of the Executive in the form of an admin-
istrative arrangement, to insist upon "having it in writing" as it will be if
Congressional access to the terms of these agreements is embodied in a statute.
I do not believe that, as the law-making body in a government of laws, Con-
gress can accede to yet another "gentlemen's agreement."
We know that the Congress has not had full knowledge of this nation's
commitments.
As I have more fully outlined in a February 16 statement which I would like
to have included in the record, the State Department itself has gone on record
as saying that Congress has not been kept fully informed.
CONTINUED PRACTICE OF SELECTIVE DISCLOSURE
Similarly, as spelled out in the State Department's own testimony which I
cited in my February statement, the evidence is that the informal arrangements
earlier proposed would preserve in every important aspect the executive's present
ability to withhold or disclose at will the terms of this nation's international
agreements :
The executive would reserve to itself the decision as to whether Congress
should be even told of an agreement.
The executive would determine how Congress would be informed, and in some
instances even presumably dictate whether the full committee membership should
have the information or whether it should go to certain selected members only.
The executive would decide which sections of an agreement Congress could
know about, and certain categories of information would be completely excluded.
How could we so accede to a continuation of the practice of selective disclosure
to the Congress of this nation's commitments?
For it is not enough that Congress be "told about" or "be made aware" that
the executive has entered into a new agreement stationing U.S. forces abroad
or extending U.S. assistance in return for some political concession. Rather, it
must be possible for Congress to participate and reach an independent judgment
on these policy decisions.
In the words of former Justice Jackson of the Supreme Court, the Congress
itself must act and the remedy must be in the law. He said :
"With all its defects, delays, and inconveniences, men have discovered no
technique for long preserving free government except that the Executive be
under law, and that the law be made by parliamentary deliberations."
I respectfully urge that this committee approve this bill.
SENATOR CASE URGES PASSAGE OF S. 596, REQUIRING THE TRANSMITTAL OF ALL
INTERNATIONAL AGREEMENTS TO CONGRESS
PARTIAL TEXT OF REMARKS BY SENATOR CLIFFORD P. CASE, PREPARED FOR DELIVERY
ON TIIE SENATE FLOOR PRIOR TO TIIE VOTE ON SENATOR CASE'S BILL
Under the terms of the bill which I have introduced, all international agree-
ments entered into by this government will henceforth be transmitted to the
Congress within 60 days of their execution. Sensitive agreements will be trans-
mitted to the Senate Foreign Relations and House Foreign Affairs Committees
under an appropriate injunction of secrecy.
TIIE FOCUS OF THIS BILL
No problem presently exists with the transmittal of unclassified international
agreements to the Congress. Under existing statute (sec. 112a, title I, United
States Code) the Secretary of State presently compiles and publishes all inter-
national agreements other than treaties concluded by the United States during
each calendar year.
Although the provision of this statute on its face is all-inclusive, the position
of the Executive Branch has been to withhold from regular dissemination to
Congress-even on a classified basis-those documents which it deems sensitive
in view of security considerations.
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\Iy bill is designed to end such an exception to the principle that Congress
has the right to know the terns of all this country's commitments.
The Constitution contains no explicit provision authorizing the President to
enter into executive agreements. They began under George Washington and dur-
ing this century have increased at a rate which has paralleled our progressive
involvement in world affairs. In numbers, executive agreements-which do not
require the advice and consent of the Congress-have come to far exceed treaties,
which do require congressional approval.
During the year 1930, 25 treaties and only nine executive agreements were
entered into by the United States. By 1968, this ratio had been overwhelmingly
reversed, with the record reflecting more than 200 executive agreements in com-
parison with only 16 treaties. As of January 1, 1909, according to the State
Department, the TTnited States was party to 909 treaties still in force: the
number of publicly disclosed executive agreements in force totalled 3,973.
Although the equivalent number of secret agreements entered into by the
executive is not a matter of public record, enough is known to establish the
key role they have played at critical junctures in this nation's history.
At the turn of the century, in an example cited by the distinguished historian
Prof. Rnhl J. Bartlett, President Theodore Roosevelt. through the Taft-Katsnra
agreement of 1905, agreed to Japanese hegemony over Korea in return for
Japan's accession to U.S. control over the Philippine Islands. In 1917, according
to Professor Bartlett, the Lansing-Ishii agreement went so fax as to include a
secret protocol which nullified the very agreement to which it was attached.
In 1943, the understandings reached at the Cairo Conference were made public,
but the provisions of the Yalta agreement which altered the Cairo compact were
not publicly disclosed for three years. And the Yalta agreement in its entirety
was not published until 1947.
More recently, the Symington Subcommittee on National Commitments un-
covered contemporary examples of secret agreements entered into without refer-
ence to the Congress : with Ethiopia in 1960: Laos, 1962: Thailand, 1964; South
Korea, 1966; Thailand, 1967; and the secret annexes to the Spanish Bases Agree-
ment of 1.953.
In the case of the Ethiopian agreement, the executive's pledge to equip the
Ethiopian army (at a cost of $147 million through 1970) and commit U.S. re-
sources to the maintenance of Ethiopia's territorial integrity, had the clear po-
tential of involving this country in the almost continuous civil war and border
disputes of this section of Africa. This agreement, concluded in 1960, was trans-
mitted to the Senate Foreign Relations Committee on May 18, 1970, and this
occurred only after the Symington subcommittee had learned of the commitment.
Unlike the other agreements uncovered through the independent efforts of this
subcommittee, notably those concerning Laos and Thailand, the Ethiopian com-
mitment did not embroil the United States in yet another open-ended conflict.
But it could have.
These and other similar international agreements-those we know of and
those whose existence are still unknown to the Congress-affect our survival and
defense in the most fundamental sense. They go to the heart of our foreign
policy.
In this age of instant communications and U.S. military deployment abroad in
the eye of potential conflict, these agreements, which can in an instant commit or
involve this country in possible hostilities, must be formally and systematically
examined by the Congress before they are triggered by events.
Failing such prior examinations, the U.S. Congress, as increasingly has been the
case since World War II, is reduced to postmortem review of accomplished facts.
THE EXECUTIVE BRANCH'S PROPOSAL
Both the existence of this problem of congressional access to those agreements
and the need for new procedures is admitted to by the executive branch itself.
During hearings on my bill on October 21, 1971, Mr. John R. Stevenson, legal
adviser to the State Department, confirmed this point on several occasions :
"* * * in certain instances in the past they (the Congress) have not been
informed on a current basis but only ad hoc some years later."
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"* * * we recognize there is a problem here. I think the problem that has been
most pinpointed is the fact that the information hasn't been obtained until a
number of years after the event."
"It seems to me that a systematic procedure is required for keeping Congress
informed."
"There is a problem which you referred to of having the Congress informed on
a more current basis * * *?"
Nonetheless, although conceding that Congress has not been fully informed,
the State Department, in its official response, declared itself "* * * firmly of
the opinion that legislation on this subject would be undesirable."
Instead, the State' Department recommended tart the Department of State
and the committees concerned "meet to work out mutually acceptable practical
arrangements."
As further defined by the State Department during the course of hearings,
however, these "practical arrangements" would preserve in every important
aspect the executive's present ability to withhold or disclose at will the terms
of these agreements. For Congress to accede even informally to these practices
would be to acknowledge the subordination of Congress to the executive branch.
In effect, it would legitimatize what in fact has been an unconstitutional assump-
tion of power by that branch :
The executive would reserve to itself the decision as to whether Congress
should be even told of an. agreement. Mr. Stevenson, State Department legal
adviser : "I cannot tell you right now that there wouldn't be some reservation
of Presidential discretion of the President's ultimate power to decide what he
wanted to do in a particular case."
The executive would determine how Congress would be informed, and in some
instances even presumably dictate whether the full committee membership
should have the information or whether it should go to certain selected members
only. Mr. Stevenson : "In some cases there would be a briefing with respect to the
subject matter of the agreement. In other cases the agreement could he shown
to several interested members of the committee but not permanently retained by
the committee."
The executive would decide which sections of an agreement Congress could
know about, and certain categories of information would be completely cr-
eluded. Air. Stevenson: "If in a briefing you got the substance of what was in-
volved, that would not necessarily mean that you had to have detailed annexes
which might have vital military significance but very little foreign affairs
WILY LEGISLATION IS NECESSARY
In 1954, the Eisenhower administration, in a letter from then Assistant Sec-
retary of State Thruston B. Morton to the Senate Foreign Relations Commit-
tee, said: "The Department would be glad to supply the Senate with copies of all
such (international) agreements."
There were no quibbles, no exceptions to the principle that the Senate should
receive all international agreements in their full and original text. Indeed, the
State Department cooperated in drawing up the language which is in my bill re-
garding the handling of elassifled agreements, and legislation similar to mine,
except that it did not provide for the transmittal of agreements to the House of
Representatives, subsequently passed the Senate in 1956.
In explaining why this legislation, once agreed to by the Eisenhower adminis-
tration, is now being opposed by the present administration, the State Depart-
ment response was:
"I think this administration, reviewing the problem in the context of the on-
going discussions we have had with this committee, feels that the respective in-
terests of the President and Congress could be better reconciled without having
quite the rigidity that this bill proposes.
In my view, the lessons of the years since 1956, let alone the relations between
the State Department and the Senate Foreign Relations Committee, have shown
us that this "rigidity"-which I interpret to mean strict accountability by the
Executive Branch-is essential to the task of restoring the people's confidence
in their government.
If any reminder is necessary of these lessons we have learned so painfully in
the intervening years since this legislation was last considered, it was provided
In a recent editorial in a major eastern newspaper :
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"If the dreary story of our involvement in the Vietnam war demonstrates any-
thing, it is that the Executive Branch does not necessarily know best ; it is that
an uninformed Congress will make uninformed decisions or none at all ; it is that
secrecy breeds distrust and that neither Congress nor the public can be expected
to support policies unless they have the basic data upon which to make their
judgments."
We know the consequences of unchecked executive power. How, then, can we
accede to a continuation of this practice of selective disclosure to the Congress
of this nation's commitments?
For it is not enough that Congress be "told about" or "be made aware" that
the executive has entered into a new agreement stationing U.S. forces abroad or
extending U.S. assistance in return for some political concession. Rather, it must
be possible that Congress can participate and offer an independent judgment
on these policy decisions.
To fulfill this role, Congress must be able to inform itself with precision of the
terms of all international agreements. And this is not possible unless, in the
case of sensitive agreements, the designated committees of Congress have the
opportunity to study and weigh the exact language of every document in its
entirety.
Even apart from the question of exact language which commits this country
to a course of action, there should be no a priori judgment as to which annex or
which section may or may not be of concern to the Congress.
As previously noted, the State Department witness in testifying on my bill
asserted that Congress did not "have to have detailed annexes which might have
vital military significance but very little foreign affairs significance."
How an agreement can be of "vital military significance" and not affect foreign
policy, I do not know.
But I am aware of a chilling example of how crucially significant to the future
of this country such an "annex" can be.
In the transcript of the White House meetings surrounding the India-Pakistan
war released by columnist Jack Anderson on January 4, Presidential adviser
Henry Kissinger was quoted as saying :
"When I visited Pakistan in January 1962, I was briefed on a secret document
or oral understanding about contingencies arising in other than the SEATO
context. Perhaps it was a Presidential letter. This was a special interpretation of
the March 1959 bilateral agreement."
Whether in fact such a "special interpretation" existed which could have
directly involved the United States in the Indian-Pakistan war, this is an example
of how an annex of mere "military" significance, although perhaps concluded in
a time of relative tranquillity when its application seemed remote, can have an
overriding importance to this country's foreign policy. Selective disclosure in
any of its forms is unacceptable.
This bill, in the terms used by the executive branch in apposing it, is "rigid."
It offers no loopholes. Every international agreement entered into by the United
States would be formally transmitted to the Congress in its full and original
text. And, as made clear in the Senate Foreign Relations Committee report accom-
panying the bill, the intent is clear that the executive should make available to
the Congress all such agreements now in force.
This bill does not represent an attack upon the executive branch. Instead, it is
designed to restore the constitutional role of Congress in the making of this
country's foreign policy.
In the words of former Justice Jackson of the Supreme Court, redressing this
balance is the responsibility of Congress itself :
"With all its defects, delays, and inconveniences, men have discovered no
technique for long preserving free government except that the Executive be
under the law, and that the law be made by parliamentary deliberations."
REQUIREMENT TO SEND ALL AGREEMENTS
Mr. ZABLOCKI. Senator, the letter that you received from Mr. Dave
Abshire, and Mr. Salans' testimony this afternoon, I undertand, de-
velops a question as to whether the President would have to send tip all
agreements. Now, if this bill becomes law, in your opinion. would the
President have the right to withhold the text of any executive agree-
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ment that he saw fit to do so, or would he be required automatically
to submit them all?
Senator CASE. I think the obligation is complete. It is intended in my
judgment to be a complete obligation.
Mr. ZABLOCKI. In your bill, and bills which we "plagiarized" from
your bill
Senator CASE. No one was ever happier than I when you did that.
Mr. ZABLOCKI. There is a provision in the legislation that if it were
a highly sensitive agreement, it would not be made open to the public
but would be held in great secrecy.
Senator CASE. I think, as a matter of fact, there may be a question
as to whether we may not go too far in keeping such agreements secret,
but the bill, as the chairman suggests, does provide an absolute bar
against disclosure until the President deems that disclosure would not
affect the security of the United States.
STATE DEPARTMENT STATEMENTS IN SENATE
Mr. ZABLOCKI. Senator, did the State Department witnesses during
their testimony in the hearings before the Senate Foreign Relations
Committee raise this question of whether transmittal of all agree-
ments was indeed required? Was the question raised?
Senator CASE. The question was raised-not as I recall it in the hear-
ing-but there was a question raised in the letter which the Department
sent up, indicating that the State Department thought that in most,
but not all cases, transmittal of these agreements would be acceptable,
As far as I am concerned, I do not think that the Congress should per-
mit any exception except on the grounds of secrecy, and secret agree-
ments, of course, should be handled as the bill specifies. I can't imagine
every possible situation that might arise, but I can see nothing now
which in my judgment ought to be accepted as an exception to the ab-
solute requirement under the terms of the bill.
Mr. ZABLOCXI. There has been some question about the security ar-
rangement in Congress with regard to the handling of those agree-
ments which might be sensitive. Do you see this as a real problem if
S. 596 is passed?
Senator CASE. Mr. Chairman, I don't.
Mr. ZABLOCKI. I don't think we have any greater amount of leaks
in the legislative branch than we find in some of the executive agencies.
Senator CASE. In order to be absolutely fair and absolutely realistic
about it, I think you are quite right in that observation that there are
no more leaks in Congress than there are in the executive branch. On
matters of real importance where secrecy is ever important, I believe
it has been preserved.
I would like to emphasize, however, that one of the reasons I am so
strongly for this bill is that I think it will be a move toward far
greater public participation in our international relations. I think that
the provision as it stands is adequate to take care of any proper secu-
rity concerns. On the question of whether the President should have
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discretion to refuse to send agreements to Congress, I now weigh the
answer as no.
VIEWS OF SENATORS ON, BILL'S MEANING
Mr. ZABLOCICT. Senator, for the purpose of legislative history, when
your bill passed the Senate by a vote of 81 to 0, did any of the Sen-
ators to your knowledge vote with the understanding that some exec-
utivo agreements night be exempted from the requirements of the bill
by unilateral action of the President?
Senator CASE. So far as I know, Mr. Chairman, nobody did. As I
recall, the way the vote went originally, there was one vote against it
and that vote, was climiged. The Senator in question was Senator
I lruska of Nebraska. lie may have made some statement in explana-
tion of his change along the lines you suggest, and I can only refer you
to the record on that. I am not aware of any myself.
Mr. ZABr.OCKI. Thant: you very much.
Mr. Whalen.
Mr. WrHALEN. Thank you, Mr. Chairman. I appreciate this oppor-
tunity to sit with the subcommittee to question witnesses today.
T certainly welcome you, Senator Case.
Senator CASE. Thank you.
Nr'MBE:GS OF EXECUTIVE AGREEMENTS
Mr. WIIA!,EN. Senator Case, for the record, approximately how
many executive agreements are we talking about since, say, 1945?
Do you have a general idea?
Senator CASE. I will be glad to provide that information for you.
We are talking about hundreds without any question. The question
has been raised of course whether these agreements are going to
swamp us. I think it is purely a matter of our making the necessary
arrangements to see that the agreements are handled in a proper way,
indexing, staff study, reference, and so forth.
EXAMPLES OF AGREEMENTS WrrIIIIELD FROM CONGRESS
Mr. WIIALEN. From your own personal study can von cite any ex-
amples of where the interests of our country have been harmed by
Congress failure to know about these executive agreements?
Senator CAsE. I think T would be inclined to put those various ar-
rangements with other countries in connection with Vietnam as one
example. Senator Symington opened lip the question recently in re-
gard to those involving the United States, for instance, in the defense
of Thailand. In this connection, I would like to add that I don't hap-
pen to be one of those who thinks that our involvement in Southeast
Asia was initially wrong or immoral.
Mr. WIIAI.EN. I concur with your view there, Senator, although
really, I didn't raise the question in connection with Vietnam.
Senator CASE. I know, but it seems to me that Vietnam is one of
those instances in which our involvement has come about through the
accumulation of a number of commitments and arrangements. I don't
think I would want to go beyond this rather general treatment.
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Mr. WHALEN. I recall reading, for example, that it was perhaps 10
or more years after the Yalta agreement before we found out the de-
tails of that agreement with the Russians.
Senator CASE. That is true. Yalta, I think, was a very high point of
executive secrecy and public and congressional acquiescence. Now
those agreements were made during actual war and while I think they
did exceed the President's authority in some sense, nevertheless he does
have more authority in conducting a war and he was dealing with very
complex problems. I'm still not certain that what he did was wise, but
I honestly think that even in the conduct of a war a man in the office
of President can't make agreements that should be made by treaty.
Mr. WIIALIiN. Along that line, using Russia as an illustration, it has
been suggested that perhaps President Nixon and the Russian leaders
agreed to more than was divulged. Now if this law were in effect, then
the President would be required to submit to the two committees at
least the contents of those agreements, is that correct, Senator Case?
Senator CASE. On that point, Mr. Kissinger said we have all the con-
tents. I take him at. his word, as I know you do.
Mr. WHALEN. Right.
Senator CASE. Although the question has been raised. Certainly
this bill would tend to discourage secret agreements and protocols, and
as far as I am concerned that is all to the good.
Mr. WIIALEN. What has concerned many of us, Senator, is the fact
that the executive branch is now using executive agreements to carry
out policy rather than resorting to treaties which would be subject to
Senate ratification. Would this in any way affect that approach or
philosophy?
Senator CASE. I think, Mr. Whalen, we must know whether there
are such agreements so we can know whether to move against them.
Interestingly enough, what we have before us in the Senate today, is
this very question of whether particular agreements, dealing in this
case with Portugal and Bahrein, should be sent to Congress for con-
sideration as treaties or whether they should be left as executive agree-
ments. I am happy to say that, up to this moment, the Senate has stood
by its former view that they should be treated as treaties. The bearing
that Mr. Zablocki's bill has on this is that we would know whether
agreements were being made and know whether to insist upon our con-
stitutional duty.
IS THE LEGISLATION NEE-DUD?
Mr. WIIALEN. One final question, Mr. Chairman.
Senator Case, I think it is the administration's contention that,
while agreeing with you in principle, as a matter of practice this kind
of legislation really is not needed. How would you respond to that
view?
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Senator CASE. Well, I am not one that thinks we have to conduct
our relations between the Congress and the President in a spirit of
acrimony. But I do think we should conduct these relations at all
times at arm's length--pleasantly enough, but each insisting that it
has a. duty to perform. In the words of the saying I found useful, each
branch should walk a little wide of the other. This is not wrong, it is
not hostile, but it does prevent the kind of clubby spirit that in the
long run is liable to be dangerous and is likely to bring about a. lulling
of alertness on the part of the Congress to situations in which we
ought not to be lulled.
So I think we should always conduct ourselves in a friendly way.
We are Americans and interested in the same goal. But, again, I think
we should also be very conscious that we in the Congress have a
separate role to follow and that we cannot do it by tipping our hat,
bending the knee, and saying, "Yes, Mr. President."
Afr. WTTALEN. Even assuming that the present administration agreed
to divulge to Congress all of its Executive agreements, it would seem
that in the absence of any statutory requirements this would not bind
any future administrations.
Senator CASE. That is true. I think that our relationship ought not
to rest upon such weak foundation.
Mr. WTTAT.E.rr. Thank you, Mr. Chairman.
Mr. ZABT,ooxl. Mr. Steele.
Mr. STELE. I have no questions at this time. Thank you, Mr.
Cl Chairman.
Mr. ZABLOCTZT. Thank. you, Senator Case.
Senator CASE. Thank you, Mr. Chairman. You have been most
gracious in allowing me to simply respond to your questions and pro-
vi de my prepared statement for the record.
Mr. ZABLOC KI. I can assure you that it will be carefully read.
Senator CASE. Thank you.
It makes me feel good to be back in my old stomping grounds.
Mr. ZABT.OCKI. Our second witness today was to have been Hon.
John R. Stevenson, Legal Adviser to the Department of State. Mr.
Stevenson has, however, been dispatched to Moscow on a special
mission.
Replacing him is Mr. Carl F. Salans, Deputy Legal Adviser to the
Department of State. Accompanying Mr. Salans is Mr. Bevans, also
of the State Department.
Mr. Salans, if you will proceed, please.
STATEMENT OF CARL F. SALANS, DEPUTY LEGAL ADVISER,
DEPARTMENT OF STATE
Mr. SAL ANS. Thank you, Mr. Chairman.
Mr. ZAlmocTu. I f you have any news for us as to what Mr. Steven-
son's role in Moscow will be, we will be happy to hear it.
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Mr. SALANS. As a matter of fact, it is to work on a treaty. Mr.
Stevenson is off on a trip in Europe in connection with his role as the
coordinator of our law of the sea effort and he is carrying on consulta-
tions there with a number of our partners in that effort.
Mr. ZABLOCKI. You may proceed, sir.
Mr. SALANS. Thank you, Mr. Chairman.
Mr. Chairman, the Department of State appreciates the opportunity
to present its views to this distinguished subcommittee on S. 596 and
their counterparts in the House, H.R. 14365 and H.R. 14647.
These bills would require the Secretary of State to transmit to the
Congress, within 60 days of their conclusion, the texts of international
agreements other than treaties. The bill provides that if, in the opinion
of the President, the immediate public disclosure of any such agree-
ment would be prejudicial to the national security, that agreement
shall be transmitted only to the Senate Committee on Foreign Rela-
tions and the House Committee on Foreign Affairs under an appropri-
ate injunction of secrecy.
As you know from the testimony of the State Department's legal
adviser, John R. Stevenson, last year before the Senate Foreign Rela-
tions Committee, the Department is very much in agreement with the
objective of these bills, which, as we understand it, is to insure that
Congress will be informed on a regular and timely basis of the con-
clusion of international agreements other than treaties. We recognize
that this represents an understandable and legitimate interest on the
part of the Congress in agreements which bear on the effective fulfill-
ment of its own constitutional responsibilities.
DEPARTMENT FAVORS INFORMAL ARRANGEMENTS
Nevertheless it has been our view that legislation was neither neces-
sary nor helpful in achieving this objective. Whatever shortcomings
there may be in the present situation-and we certainly believe there
can be improvements-have, in our opinion, resulted from the fact that
there has never been a joint effort on the part of the Congress and the
executive branch to develop a systematic procedure for the handling
of these agreements. Thus it has seemed to us that what we were faced
with was not really a difference in principle as to what should be done
but, rather, simply, a lack of agreed procedures which could be put
into effect on an automatic basis.
We believed it was a problem which reasonable men could easily
resolve if they were only willing to take the time to work out the
practical details. So in the Department's testimony before the Senate
Foreign Relations Committee last fall, we proposed that we should
discuss with the committee staff arrangements of a practical nature
which would achieve the objective and meet our concerns as well.
That offer was not accepted and the Senate, as you know, did pass
the legislation. Subsequently, on May 18, 1972, the legal adviser, in
testimony before the Subcommittee on Separation of Powers of the
Senate Judiciary Committee, reiterated the point that we would very
much welcome a willingness on the part of the relevant committees to
discuss cooperative arrangements in this area. He made it clear, how-
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ever, that the executive branch would not oppose the legislation if
Congress truly felt this was the wisest manner in which to proceed.
Tn this connection, Mr. Chairman, I should make clear that we do
not unrlerstand that these bills are intended to, nor do we believe they
can, alter the constitutional responsibility or authority of the Presi-
dent with respect to the disclosure of information. Ave recognize that
Congress has a legitimate interest in very nearly all agreements con-
cluded by the executive branch; and the responsibility and authority
of the President would therefore not preclude disclosure in any but
the most highly exceptional circumstances.
TRANSMITTAL I'ROCEDu?RF, NOW BEING DEVELOPED
\1r. Chairman, the Department is presently in the process of trying
to develop procedures for the transmittal to Congress of executive
agreements other than treaties within 60 days, as would be required
by these bills. Since we believe such procedures would be a healthy im-
provement. in the relations between the executive branch and Congress
in the area of foreign relations, it is our intention to implement them
whether or not tv' bill is enacted into law. We still believe it would be
very helpful. if we could consult with the staffs of the appropriate corn -
Inittees in the course of our effort to arrive at procedures which Will
best, meet our mutual needs.
Of course one question We are always faced with is whether a par-
ticular arrangement constitutes an international agreement. Many
exchanges involve administrative working details for carrying out a
treaty or agreement or are in the nature of commercial contracts relat-
ing to sales of equipment, commodities, et cetera. We do not consider
many of these exchanges to constitute international agreements, for
example, for the purpose of registering them with the United Nations
or publishing them in the annual volumes of the U.S. Treaties and
Other International Agreements.
PROBLEM OF "SENSITIVE" AGREEMENTS
T will mention briefly one other aspect of the problem which is in-
volved in establishing a viable working procedure for transmitting
sensitive agreements--the question of the physical security of classi-
fied agreements. The problems in this area include measures for the
actual storage of such documents, rules concerning their removal from
storage areas, and questions of access by various personnel. At the
present time there is a lack of well-established practical arrangements
which will insure proper protection of sensitive international agree-
ments in the Corgi ess. As I am sure this subcommittee will recognize,
transmittal of sensitive agreements to the Congress will depend in no
small measure on formulation and implementation of adequate ar-
rangements for the safeguarding of information concerning such
agreements.
Let me interject at this point, Mr. Chairman, I don't envision this as
an obstacle to transmission of agreements at all. It is simply a ques-
tion of making the necessary technical arrangements for safeguarding
this information.
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COMMITTEE ALREADY HANDLES CLASSIFIED MATERIALS
Mr. ZABLOCKI. On this point I am sure you are aware that the House
Foreign Affairs Committee at the present time receives top secret
documents and we have a security room.
Mr. SALANS. I am aware of that, Mr. Chairman.
Mr. ZABLOCKI. And I am sure we get some documents that are of a
higher classification of secrecy than most agreements that you would
send on.
Mr. SALANS. Yes, but there is always
Mr. ZABLOCKI. So have no fear about how we handle them.
Mr. SALANS. As I say, we are not in fear on this point, we simply
thought it was wise to bring to your attention
Mr. ZABLOCKI. I can understand why you mentioned it but I am sure
we are all pleased that you should have no need to be apprehensive.
Mr. SALANS. Right.
SETTLE DIFFERENCES ON CASE-BY-CASE BASIS
Even with the best technical arrangements there will, of course,
still be-as there have been in the past-a limited number of very
sensitive executive agreements concerning which there may be dif-
ferences of view between the executive and legislative branches regard-
ing their transmittal to Congress. It is our view that such differences
can only be resolved on a case-by-case basis through cooperation and
accommodation between the two branches. This has invariably been
the case in the past ; and we believe that if more systematic arrange-
ments are worked out for the future, the ability to amicably work out
differences will be greatly improved.
In fact, it is in this very area that we have difficulty in seeing how
the proposed bills would improve the relationships between the execu-
tive branch and the legislative branch above and beyond what could
be worked out on a mutually cooperative basis through practical
arrangements of the kind we are suggesting'. This is, Mr. Chairman,
an area involving the constitutional responsibilities of both the Presi-
dent and the Congress. It is an area of shared powers under the Con-
stitution springing from the separation of powers. Effective interaction
between the two branches in this area requires cooperation and is not
furthered by legislation which fails to take into account the complexi-
ties of the constitutional issues involved.
WILLINGNESS TO WORK WITH INTERESTED COMMITTEES
Let me conclude, Mr. Chairman, by reemphasizing the willingness
of the Department to work with the interested committees of Congress
in developing practical measures for the resolution of this problem.
We are convinced that the problem is in essence one of practice rather
than one of principle. It is really an integral part of the question of
Congress' need for information to enable it to carry out its constitu-
tional responsibilities in the field of foreign affairs.
The Department of State has made suggestions for improving the
flow of information, as well as consultations, between the two branches
and has indicated its willingness to consider other possibilities Con-
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gress may wish to suggest. ~~ e are, at the moment, for example, under-
taking a thorough review of the Department's circular 175 procedure
which, in part, deals with executive-legislative relations in the area of
international agreementmaking. We would welcome your subcommit-
tee's views on whether, and if so, how the Department's circular 175
should be revised. We believe we share a common perspective as to the
need for cooperation in this area, and we are anxious to do whatever
we can to improve that cooperation.
Thank you, Mr. Chairman.
Mr. ZABLOCKI. Thank you, Mr. Salans.
I gather the Department is not opposed to the legislation.
Mr. SALANs. That is correct, Mr. Chairman.
Mr. ZABLOCKI. You just have mental reservations about some sections
of it.
Mr. SALANS. We still think that the legislation is not necessary to
achieve the objective which it is designed to achieve.
Mr. ZABLOCrcr. That reminds me of a modern couple that is against
getting married. 'i'lrey say, "Of course, we will be faithful to each other
but we don't want to say `I do.' "
Regarding your statement on page 3, are you attempting to tell the
Congress that we can pass a bill requiring that all executive agreements
must be transmitted to Congress but that does not mean the President
will comply?
Mr. SAL ANS. Well, what I think it means, Mr. Chairman, is that
there are certain responsibilities and authorities that the President has
as a matter of constitutional law which cannot be affected by legisla-
tion. Our objective here is to cooperate to the fullest extent possible
with the Congress in providing it with agreements and with informa-
tion about agreements, but we are saying that there may be occasions
in the future as there have been in the past when the Congress has
requested the tests of a particular document or agreement from the
executive branch and when the President has felt that he could not
provide the text. Re may provide information about it, he may provide
a briefing about it, but, he may feel that for some reason it is not com-
patible with his constitutional responsibility to provide the text of
the-agreement.
Mr. ZABLOCKI. I can understand executive privilege when some docu-
ments or exchange of papers between departments within the execu-
tive branch are involved but not when the President makes an execu-
tive agreement with a foreign nation. There is no reason why the
President should not share such information with Congress if Con-
gress is supposed to carry out its constitutional obligations. If the
President can bind our Nation internationally through the use of exec-
utive agreements, then the Congress or a designated committee of Con-
gress has the right to know what those executive agreements contain.
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Mr. SALANS. I think, Mr. Chairman, that there are certain areas
where the President concludes international agreements on the basis
of his own constitutional authority. These agreements do not spring
from authority granted to him by legislation, from the Congress or
from any other source of authority other than his own responsibility.
EXAMPLES OF "PRIVILEGED" EXECUTIVE AOREI]MENTS
Mr. ZABLOCKI. Could you give me an example of one or two in-
stances where the Constitution gives a right to the President to enter
into executive agreements that the Congress has no business knowing
about?
Mr. SALANS. Well as one example let me quote from the testimony
before the Senate b'oreign Relations Committee on this very bill by
Prof. Alexander Bickel of Yale. As an example I quote from page 27
of the hearings before that committee.
"I should suppose that if his function as Commander in Chief, re-
sponsible for the safety of troops, was involved he might well be on
sound constitutional ground in invoking executive privilege and with-
holding a document"-and in that case he was talking about an agree-
ment-`'from Congress."
Mr. ZABLOCKI. Was Dr. Bickel referring to an immediate release to
Congress or an indefinite period of withholding the agreement?
Mr. SALANS. Ile was asked the question whether he saw any con-
stitutional difficulties in S. 596. If you have it in front of you, you
will see at the bottom of page 27 he said the only possible difficulty he
could see was that the President might decline to transmit an agree-
ment which he views as executed in exercise of his own independent
power and of no proper concern to Congress.
AGREEMENTS IN "ZONE OF TWILIGHT"
Mr. ZABLOCKI. In the middle of the page, if I can refer to the same
hearings, the hearings say :
Executive agreements which lie in the "zone of twilight" between presidential
and legislative powers are of obvious concern and legitimate interest to Con-
gress 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.
Mr. SALANS. Yes, Mr. Chairman. In that portion of his testimony he
was talking about the concurrent powers of the Congress and the
President. What I am talking about is an area where the President is
acting on his own constitutional authority.
Let me add at this point I think it is in a very limited number of
cases, very exceptional cases, that that happens. We have studied our
international executive agreements over a period of many years and
found that in almost 97 percent of the cases these executive agree-
ments are based on some sort of legislative authority. It is only in 2
or 3 percent of the cases that the President acts solely on the basis of
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his own constitutional authority and not in the twilight zone that you
just referred to.
Mr. ZABLOCK1. Even in the 2 or 3 percent of the cases can you give
en example where the Congress should not be advised?
Mr. SALANS. Well, I referred to Professor Bickel's testimony as to
one area which he saw.
11 r. ZA RLOCT 1. I Ie said "supposedly." lie didn't make quite so deter-
mined a decision.
Mr. SALANS. Well, it is hard for me to speak for the President.
Mr. ZABLOCI U. Can you give an example other than Professor
Nickel's?
Hr. SALANS. I know that in the past there has been a great reluctance
in the executive branch to provide the texts of agreements relating to
the storing of nuclear weapons abroad. We have been willing to brief
the Congress about these agreements but there are oftentimes details
i n these agreements which are not really of significance for congres-
sional responsibility.
Mr. ZABLOCKT. I beg to differ. If it is necessary for the Congress to be
briefed about some of the matters agreed to, I think that Congress cer-
tainly should be sadvised of the details. What you are saying is: "Well,
we will. just tell the Congress what we think we want it to know." The
very fact that the Department has been so reluctant in the past to me
means it is very vital that we pass this legislation. Then you will be
less reluctant in the future. You say the Department wants to work
with the Congress, work out some plans. Unless we have legislation no
plans would be worth the paper they are written on-given our past
experience in this area.
I am sure others have questions and we have a rollcall. If I may ask
one other question.
On page 4 you point out another problem, that there are many, many
agreements that deal with sales of equipment, commodities and com-
niercial contracts and you point out that many of them are published
in the annual volumes of the United States Treaties and Other Inter-
national Agreements. It appears to be a problem for you as to what we
really want.
I might very clearly say any agreement-that is, any agreement
other than a treaty-is what we are interested in. Whatever treaties
are published you don't have to bother with, we will find them, we have
access to them. It is those agreements that you are so reluctant to share
with Congress which we think this legislation should make available
to us.
Mr. SALANS. This paragraph, Mr. Chairman, was not referring to
intorrnation that we were reluctant to furnish.
Mr. ZABLocKi. I know.
Mr. SALANS. It is perfectly unclassified.
All'. ZABLOCK1. You could not be reluctant when they are published.
Mr. SALANS. These are often exchanges that are not even published
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because we don't consider that they amount to international agree-
ments. We don't publish them, we don't register them with the United
Nations. In fact, the United Nations won't even accept them because
they look at them and they say, "This does not rise to the distinction of
being an international agreement."
14r. ZABLOCRI. No, but in that paragraph do you not say you do
register them with the United Nations or publish them in the an-
nual volumes of the United States Treaties and Other International
Agreements?
'Mr. SALANS. No, sir. That sentence says, "We do not consider many .
of these exchanges to constitute international agreements, for example,
for the purpose of registering them." We do not consider them to be
agreements for the purpose of registering them, so we do not register
them and we do not publish them.
Mr. ZABLOCKI. Mr. Steele.
Mr. STEELS. Thank you, Mr. Chairman.
I don't really think there is anything left to ask. I think that this
testimony is the strongest support that could possibly be given for
enactment of this legislation. The statement appears on page 3, "We
v eog'nize that Congress has a legitimate interest in very nearly all
agreements concluded by the executive branch." I would very hotly
dispute that. I think that Congress has a legitimate interest in all the
agreements and I think my colleagues are going to feel exactly the same
way. I think your testimony is an able one but it is one which clearly
supports this legislation, just as the chairman in his questioning has
made clear.
I don't have any questions.
Mr. ZABrocKI. Mr. Whalen.
Mr. WI[ALEN. Thank you, Mr. Chairman.
I would like to pursue what Congressman Steele has said, that in
your statement you have indicated the need for greater cooperation
between the two branches of government. Therefore, it is a little diffi-
cult to understand why you would object to this being put in statutory
form.
Mr. SALANS. 11Ir. Whalen, we do not object. We think that it is not
necessary to put it in legislative form because we believe that when
Congress requests international agreements that we can respond to
that request and work out arrangements for providing the agreements
or providing information.
Mr. WHALEN. Well, I think the significant question is when we re-
quest agreements, how do we know that agreements have been made?
Mr. SALANS. We are prepared to sit down with the staff of this com-
mittee or the staff of the Foreign Relations Committee or with you
yourself to work out a continuing arrangement whereby without your
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knowing whether an agreement has been concluded or not we would
automatically provide the agreement to you or brief you about an
agreement that was in the process of being negotiated or whatever the
case is.
Mr. WIiALEN. What you are saying is we will do exactly what you
want but don't put it in statutory form. If that is the case, personally
I cannot see why there is any objection to putting it in statutory form
as Congressman Steele has pointed out.
Mr. SALANS. We think that there are a variety of different ways of
providing information to the Congress about executive agreements and
that the greater amount of flexibility that can be preserved between
the two branches the more information in fact that will flow. We have
often found in the past that where we could not provide a particular
document to Congress we could nevertheless provide the information
that was in the document if the Congress didn't insist on seeing the
particular document itself.
Mr. WHALEti. I don't understand that.
Mr. SALANS. You know that that has been the case. We just think
that that is more conducive to a good working relationship than to
reduce it to legislation.
Again we are not going to oppose this bill if you all feel that this is
the proper way to proceed.
Mr. WHALEr. Let me repeat a question which I posed to Senator
Case. Let's assume that we can work out a relationship with the pres-
ent administration. Is this any guarantee that this relationship would
continue with the succeeding administrations? They may take an
entirely different view and cut off this flow of information.
Mr. SALANS. I think once we establish a relationship of this kind it
would be impossible to turn it off. That is bound to continue in the
future.
Mr. Wh ALEr. Well, two more questions, Mr. Chairman. One has to
do with Mr. Salans' concern about security arrangements. I think that
the security arrangements are implied in this bill. However, would you
recommend that some specific reference be made to it in the legislation
itsel f ?
Mr. SAL.ANS. No. I would not, Mr. Whalen. I think it would be satis-
factory if the appropriate people from the State Department got to-
gether with your staffs and just worked out the mechanical arrange-
ments for storing and access, and if there are security clearances that
need to be acquired by the staff who will have access to those docu-
ments they can be provided. It is a matter of mechanics.
Mr. WHALEN. Let me raise one final question to which I alluded
before. The Congress, of course, is not aware when executive agree-
ments are reached. If the administration feels that, well, this is one
really Congress should not get, how would we know about it? Would
you object to an v provision for "on-site inspection"?
Mr. SALAD s. Well, I had not considered that but I suppose we would
object. One of the reasons we thought that making a practical arrange-
ment was preferable was that we might, for example, provide in such
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an arrangement for briefing the Congress, not only when the agree-
ment had been concluded but perhaps as the negotiation was under-
way and this would help to solve the problem that you are talking
about. You might find that in a particularly sensitive area one would
not be willing to provide the precise text, but if we knew that the
text need not be provided we could keep you informed on a continu-
ing basis of the progress of negotiation and conclusion of these agree-
ments. Again it is an element of flexibility.
Mr. WIIALEN. Mr. Chairman, I have no further questions.
Mr. ZABLOCKI. I am sure the committee appreciates your additional
offer for consultation before an agreement is concluded. This is further
than the legislation goes and I hope that indeed the Department will
foster consultation.
Referring to the question whether an arrangement-not a statute
but an arrangement-with the executive branch would be continued
with a new President, I think any arrangement that was made in the
past need not be continued and very likely would be in jeopardy of
continuing.
There is one final question. There is no question as to treaties,
they have to be ratified by the Senate. Now may I ask this question
because I think it is very relevant. Do international executive agree-
ments have the same standing and effect in international law as
treaties?
Mr. SALANS. In international law?
Mr. ZABLOCai. Yes.
Mr. SALANS. Yes, they do.
Mr. ZABLOCKI. Well, if they do then they bind the U.S. Government
and Nation as a whole under international law.
Mr. SALANS. Yes.
Mr. ZABLOCKI. Since Congress is a coequal branch of government are
you saying that the President can bind the Congress and the entire
Nation to an international agreement about which the Congress knows
nothing?
Mr. SALANS. I think he can, yes. I think that he has the constitu-
tional power. For example, if the President wants. to make an arrange-
ment right now in Vietnam with the Vietnamese Government to some-
how protect our troops there, he is acting as Commander in Chief and
he can do that. The Congress may not know anything about it, but it
binds the United States and it is perfectly lawful.
Mr. ZABLOCKI. But what is the harm in keeping it secret and not
sharing it with the Congress and the people?
Mr. SALANS. Well, in that particular case I would not think there
would be any problem.
Mr. ZABLOCKI. I cannot think of any particular case where the Presi-
dent would enter into an international agreement which I would want
to keep secret from the Congress.
Mr. SALANS. We certainly know that there have been in the past
cases when the executive branch did not wish to provide certain infor-
mation to Congress.
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Mr. ZABLOCIII. There is no doubt about it, not only in international
affairs but domestic affairs as well.
Mr. SALANS. And I assume there will continue to be in the future,
Mr. Chairman. I am only going on the basis of past experience when
I say that.
;1Ir. ZA.PLOCS i. Well, we hone that the past experiences will be some-
thing of history, and that the future will be better for cooperation
between the executive branch and the legislative branch and that there
will be meaningful cooperation. In my opinion I think we can only
have meaningful arrangements between the executive branch and the
legislative branch if we do have a statutory provision; otherwise, I
submit, the reluctance to be candid on the part of the executive branch
will continue and suitable arrangements will not be made.
Mr. SALANS. We certainly want to cooperate with you. I personally
..m working to that end, and T think we all are in the State
Department.
Mr. ZABLOCI ]. We want to be most cooperative and helpful to the
Department and we appreciate the fact that you are indeed not oppos-
ing the legislation. We would hope that you would enthusiastically
endorse, it.
Thank you very much, Mr. Salans.
Mr. WIIAI.EN. Mr. Chairman, I have a brief statement in support of
this legislation.
Mr. ZABLOCKI. Without objection the statement will be made part of
the record.
(The statement follows)
STATEMENT OF HON. CHARLES W. WHALEN JR., OF OHIO
Mr. Chairman, I am very appreciative of your invitation to participate in the
hearing this afternoon on S. 596 and its House companion bills, H.R. 14305 and
II.R. 14647 which you and I have sponsored. These proposals would require the
transmission of international agreements other than treaties to the Congress
within sixty days after their execution.
Mr. Chairman, a free people must have access to the decisions of their govern-
ment if they are to remain free. As representatives of a free people, we in Con-
gress have a responsibility to keep apprised of governmental matters in even
greater detail than our constituents. Unfortunately, however, in the area of inter-
national agreements, it is often difficult for Congress to be fully informed. This is
so because the executive branch, under both Republican and Democratic Admin-
istrations, has taken the position that it can withhold from regular dissemination
to Congress-even on a classified basis-those documents which it deems sensi-
tive in view of security considerations.
In recent years, the number and the subject matter of these secret agreements
make it imperative that Congress be aware of their existence. Many of these
commitments affect our survival and defense in the most fundamental sense.
Certainly, in this age of instant communication and military deployment aboard,
agreements which could involve the United States in hostilities must be known
to the Congress before, not after, they have triggered events. Thus, the purpose
of the legislation we are considering today is to re-enforce the right of Congress
to know the terms of all of this country's commitments.
These proposals also recognize that it might not be in the Nation's interest for
some agreements to be disclosed publicly. For that reason, these bills stipulate
that agreements which the executive wishes to remain classified would be trans-
mitted not to the Congress at large but to the House Foreign Affairs and Senate
Foreign Relations Committees. These committees are charged with the responsi-
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otlity of being Congress' focal point in the international field. Without complete
information, neither the committees nor the entire congress can discharge their
duties properly.
Mr. Chairman, I strongly urge that the Subcommittee act favorably on this
legislation.
In closing, I would like to note the contribution made in this area by our former
colleague, the present U.S. Under Secretary General for Political and General
Assembly affairs, Brad Morse. Brad was the sponsor of the first bill introduced
in the House on this subject in the 92nd Congress. I am sure that he is greatly
pleased that the efforts he commenced have resulted in our study of the legisla-
tion this afternoon.
Mr. Chairman, again, thank you for this opportunity to meet with your Sub-
committee.
Mr. ZABLOCKI. Thank you very much, gentlemen.
The subcommittee stands adjourned.
(Whereupon, at 3 :05 p.m., the subcommittee adjourned.)
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APPENDIX
THE LEGAL BASIS UPON WIIICH CONGRESS MAY HAVE A RIGHT OF
ACCESS TO THE TEXTS OF ALL EXECUTIVE AGREEMENTS'
(By David M. Sale, American Law Division, Congressional Research Service,
Library of Congress, June 27, 1972)
I. INTRODUCTION
This memorandum is in response to your request concerning the legal basis
upon which Congress may predicate a right to the disclosure of the texts of all
Executive agreements which, under international law, are binding upon the
United States.
Although Executive agreements may be grouped into various categories, in
order to simplify the discussion it would seem advisable to follow the suggestion
of one commentator that basically there are only two types : (1) those au-
thorized by Congress and (2) those negotiated by the President on his own
authority.' The most difficult constitutional questions seem to arise from the
latter category. This memorandum, therefore, will focus primarily upon the right
of Congress to require the disclosure of those Executive agreements which are
made pursuant to the President's own constitutional authority.
The power of the President to conclude Executive agreements on his own au-
thority would seem to be well established :
"Nowhere in the Constitution can there be found an explicit provision granting
to the President the power to conclude international agreements without the
sanction of Congress or the Senate. Yet this power has been exercised consist-
ently since the beginning of our history. And in the process the President has
acquired the exclusive right to negotiate all agreements with foreign nations,
including those concluded as treaties. The President's authority to enter an agree-
ment which becomes an international obligation of the United States is so indis-
pensable to his power to initiate foreign policy that it may reasonably be de-
rived by implication from the language of the Constitution... .11 2
It should be noted, however, that the "scope" of the President's power to con-
clude Executive agreements on his own authority does not seem to be as well
settled :
"The question which remains unanswered today concerns not the existence but
the scope of the President's independent power to conclude international agree-
ments. In the absence of a clause in the Constitution explicitly granting and
limiting the power, its boundaries must be discovered by determining the scope
of the substantive foreign affairs powers of the President ; for his authority to
make international agreements must be coextensive with these substantive pow-
ers if he is not to be deprived of a frequently indispensable instrument for
exercising them."'
Although there are no judicial precedents which raise the question of the
right of Congress to require the disclosure of the texts of all Executive agree-
ments which are concluded pursuant to the foreign affairs powers of the Presi-
dent, several arguments may be made in support of the proposition that Con-
gress does have this right.
*Prepared at the request of the Subcommittee on National Security Policy and Scientific
Developments for its use and is not intended to represent the opinion of the author or the
Congressional Research Service.
1 Hopson, "The Executive Agreement in United States Practice," 12 AFJAG L. Rev. 252,
257 (1970).
a \4athews. "The Constitutional Power of the President to 'Conclude International Agree-
ments," 64 Yale L. Jr. 320, 351 (1955).
1 Td.
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If. CONGRESSIONAL Pow ER UNDER ARTICLE I, SECTION 8 OF THE CONSTITUTION
Article I, section 8, of the Constitution provides that Congress shall have
power-
"To make all laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer thereof."
Professor Ruhl Bartlett of the Fletcher School of Law and Diplomacy at Tufts
University has indicated that Article I, section 8, is a constitutional legal basis
upon which Congress may predicate its authority in the area of foreign policy :
"It is often remarked that in the interpretation of legal documents they must
be examined as a whole and therefore that this provision of the Constitution
must be considered in relation to all other grants of power.
"This is true and it is precisely because it is true that article I, section 8, is so
transcendent. It covers all other powers granted in the Constitution. The Presi-
dent is assigned certain duties and rights, but none of them can be carried into
effect without legislative sanction whenever the Congress chooses to exercise its
constitutional power. The solid fact is that the Congress is the authoritative or-
gan of the government in the determination of foreign policy.' [Emphasis added]."
Professor Philip Kurland of the University of Chicago Law School has also
contended that Article I, section 8, is a broad legal basis of Congressional
authority :
`Since John Marshall used the 'necessary and proper' clause to expand the na-
tional authority in the Bank case (McCielloch v. Maryland, 4 Wheat, 316 (1819),),
it has generally been regarded as a device for the allocation of power between
the nation and the states. A reading of its proivsions suggests that it is at least
as relevant to the division of authority within the national government itself.
The provision, as you may recall, reads: 'The Congress shall have Power . . .
To make all Laws which shall be necessary and proper for carrying into execution
the foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or officer thereof.'
[Emphasis added].
In this connection, Professor Kurland has suggested the extent to which Con-
gress may still be a "viable institution:"
"It [Congress] can, I think, even legislate the terms and conditions under which
the executive privilege may be asserted for the protection of the national interests.
I think that the real problem is that Congress cannot-because of the way It is
organized-or will not, for whatever reason, undertake the duties that are as-
cribed to it by the Constitution. . I expect that Congress will continue to
condone Presidential actions that find no warrant in Congressional legislation.
We will continue, for example, to see . . . secret executive agreements substitute
for treaties. . I suggested several years ago that the failure of Congress proves
or will prove the failure of democracy. And I still think that the danger is
nothing less than that." 6
There is some indication, however, that Congress may be beginning, to use
Professor Kurland's terminology, supra, to "undertake the duties that are as-
cribed to it by the Constitution." The Report of the Senate Foreign Relations
Committee, concerning the recent War Powers Legislation, contained the follow-
ing language:
"It is also of great importance to note that the residual legislative authority
over the entire domain of foreign policy-not just the war power-was placed in
Congress by the Constitution. 'Members of Congress have themselves perhaps
underestimated the authority vested in them by the 'necessary and proper' clause
of Article I. Section 8, of the Constitution. That clause entrusts the Congress to
make all laws 'necessary and proper for carrying into execution' not only its own
powers but 'all other powers vested by this Constitution in the Government of
the United States, or in any department or officer thereof.' Strictly interpreted,
the 'necessary and proper' clause entrusts the Congress not only to 'carry into
execution' its own constitutional war power, but also, should it be thought neces-
M1 Hearings before the Committee on Foreign Relations of the U.S. Senate on S. 596,
92d Cong., fat sees., 18-19 11971).-
Hearings before the Subcommittee on Separation of Powers of the Committee on the
Judiciary of the U.S. Senate on S. 1125, 92d Cong., 1st secs., 539 (1971).
'Id.
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sary, to define and codify the powers of the government as a whole, including
those of the President as its principal officer."'
If Congress is to assert its constitutional power under Article I, section 8, as
the "authoritative organ of the government in the determination of foreign
policy" (Bartlett, supra) it would seem implicit that Congress should have the
right to require the disclosure of the texts of all Executive agreements which, of
course, bind the United States under international law. The Report of the Senate
Foreign Relations Committee on S. 596 seems in accord on this point :
" .. the principle of mandatory reporting of agreements with foreign countries
to the Congress is more than desirable; it is, from a constitutional standpoint,
crucial and indispensable. For the Congress to accept anything less would
represent a resignation from responsibility and an alienation of an authority
which is vested in the Congress by the Constitution. If Congress is to meet its
responsibilities in the formulation of foreign policy, no information is more
crucial than the fact and the content of agreements with foreign nations.' 1 8
111. CURTISS-WRIGIIT AND TIIE POWER OF CONGRESS IN TILE FIELD OF FOREIGN
AFFAIRS
In United States v. Curtiss-Wright Corporation,' the Supreme Court, in an
opinion by Justice Sutherland, presented the following interpretation of the
President's role in the field of foreign affairs :
"In this vast external realm, with its important, complicated, delicate and mani-
fold problems, the President alone has the power to speak or listen as a repre-
sentative of the nation. Ile makes treaties with the advice and consent of the
Senate ; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude ; and Congress itself is powerless to invade it.
"It is important to bear in mind that we are here dealing not alone with an
authority vested in the President by an exertion of legislative power, but with
such an authority plus the very delicate, plenary and exclusive power of the
President, as the sole organ of the federal government in the field of international
relations-a power which does not require as a basis for its exercise an act of
Congress, but which, of course, like every other governmental power, roust be
exercised in subordination to the applicable provisions of the Constitution." "
This language has been the subject of strong criticism by Professor Alexander
Bickel of Yale University Law School :
. the grandiose conception, the almost regal conception of the President's
independent role in Foreign Affairs suggested by Justice Sutherland's dicta in
United States v, Curtiss-Wright Corporation. . and which was widely taken
up in the first flush of the enthusiasm with which we assumed the world in the
inid-1940's, this grandiose conception never had any warrant in the Constitu-
tion, is wrong in theory and unworkable in practice." 11
More specifically, Professor Bickel offers the following explanation of Justice
Sutherland's opinion :
"The eloquent assertions of independent ]'residential power in the `vast ex-
ternal realm,' which was Justice Sutherland's phrase, which were largely dicta,
were largely restricted to statements that the President alone can `speak or
listen as a representative of the Nation' ; that he alone negotiates treaties, and
that the Senate cannot intrude, although it must give advice and consent ulti-
mately ; that the President has `plenary and exclusive power ... as the sole organ
of the federal government in the field of international relations,' which in con-
text must be taken as a restatement of his role as chief spokesman and chief
listener, especially since the court added that the President's powers `must be
exercised in subordination to the applicable provisions of the Constitution' ; and
that the President, and not Congress, has the better opportunity of knowing
the conditions in foreign countries, because the President has his agents, and is
better able to maintain secrecy. That was all." "
Re. No. q2-606, 92 Con.. 2d sess.. 15-19
e S. Ren. No. 92-591. 92dn Cong., 2d sees.. 3 (1972)1972).
n 299 U.S. 304 (1936).
05299 U.S. tot 319-320.
11 Bearings before the Committee on Foreign Relations of the U.S. Senate on S. 590, 92d
Cong. let sees., 26 (1971).
"Hearings before the Committee on Foreign Relations of the U.S. Senate on S. 731,
S.J. Res. 18 and S.S. Res. 59, 92d Cong., 1st sees. 553 (1971).
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Professor Bartlett also believes that the scope of Justice Sutherland's opinion
should be limited :
"As far as the authority of the Congress is concerned, the Curtiss-Wright deci-
sion, or anything derived from it, has only one validity : The Court decided
that in the particular case before it the Congress had not delegated its essential
legislative functions. It did not and could not make the President's fiat law be-
yond effective challenge of the Congress nor make the Executive either the pri-
mary or the exclusive organ of the Government in the making of foreign policy." 13
In light of there criticisms, it would seem that the Curtiss-Wright decision
presents no bar to the assertion of Congress' full responsibility in the field of for-
eign affairs. Both Professor Bartlett and Professor Bickel have noted that in the
second part of Justice Sutherland's passage, quoted supra, the President's
powers were of course" made subject to the "applicable provisions of the Consti-
tution." It has already been suggested in Part II that one of the "applicable pro-
visions of the Constitution" is Article I, section 8, the Necessary and Proper
Clause.
IV. EXECUTIVE AGREEMENTS AND THE "ZONE OF TWILIGHT"
To assert that the President's power to conclude Executive agreements is
subject to limitations under Article I, section 8, is not to avoid recognizing the
difficulty of delineating precise constitutional boundaries in an area where some
degree of eoncurreait authority exists. The interplay of Congressional and Presi-
dential authority with respect to Executive agreements has received explanation
by Professor Bickel :
"The President's independent power to conclude executive agreements with
other nations, like other of his powers, can exist only in context, and subject to
the limitations, of our singular American doctrine of the separation and joinder
of powers, the chief modern authoritative statement of which came from the
Supreme Court in the famous Steel Seizure case of 1952." 14
The case to which Professor Bickel refers is Youngstown Sheet and Tube Co. v.
Sawpler.15 In that decision, Justice Jackson's concurring opinion stated as follows :
"While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity. Presidential powers are not fixed but fluctuate, de-
pending upon their disjunction with those of Congress.
"2. When the President acts in absence of either a congressional grant or
denial of authority. he can only rely upon his own independent powers, but there
is a zone of twilight in which he and Congress may have concurrent authority,
or in which its distribution is uncertain. Therefore, congressional inertia, in-
difference or quiescence may sometimes, at least as a practical matter, enable, if
not invite, measures on independent presidential responsibility. In this area any
actual test of power is likely to depend on the imperatives of events and con-
temporary imponderables rather than on abstract theories of law." 11
Professor Bickel believes that most Executive agreements which the President
concludes on his own independent authority fall within Justice Jackson's "zone
of twilight" and that Congress' authority in this zone is of sufficient magnitude
to require the requisite degree of Executive disclosure:
"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 when-
ever Congress ebooeees to act. What Congress may act on, it can require to be
informed about." 14 (Emphasis added].
It should he noted that there may be some Executive agreements which do not
lie within the "zone of twilight." Professor Bickel has suggested, for example,
11 Henringe before the Committee on Foreign Relations of the U.S. Senate on S. 596,
92r1 Cong.. 1st less., 19 (1971).
11 Td., at 26.
11343 U.S. 579 (1952).
16 TMT., a.t 635-637.
87FTenrines before the Committee on Foreign Relations of the U.S. Senate on S. 596,
92d Cone., lit sell., 27 (1971).
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that "if his [the President's] function as Commander-in-Chief responsible for
the safety of troops was involved, he might well be on sound constitutional
ground in invoking executive privilege and withholding a document from Con-
gress."" But Professor Bickel has also indicated his belief that the President
cannot use his powers as Commander-in-Chief as a subterfuge for the "full
conduct of foreign policy." lB It would seem, therefore, that if the President
improperly refused to disclose the text of an Executive agreement on the basis
of his powers as Commander-in-Chief, and thereby hampered Congress' power
as the "authoritative organ of the government in the determination of foreign
policy" (Bartlett, supra), Congress would be constitutionally entitled to assert
its right to the disclosure of the Executive agreement.
Professor Raoul Berger has also made some observations, concerning the use
of the Commander-in-Chief power to withhold information, which may be rele-
vant to the President's use of this power to withhold the text of Executive
agreements [Professor Berger's citations are to his article "Executive Privilege
v. Congressional Inquiry" in 12 U.C.L.A. L. Rev. 1043 (1965)] :
"What does the role of the President as Commander-in-Chief add to his right
to withhold information ; does it immunize Military affairs from disclosure? He
can only act as Commander if Congress furnishes him with an Army By Article I,
? 8, only Congress can raise and support armies ; and it is required to limit appro-
priations for that use to two years. Additionally Article I, ? 9, provides that `No
money shall be drawn from the Treasury but in consequence of appropriations
made by law.' It follows that Congress may withdraw an appropriation for the
Army and completely deflate the Commander's powers. Can it be that Congress
cannot preliminarily inquire whether such withdrawal is necessary? Must it like
Charles Lamb's Chinaman burn down the barn to roast the pig? An early prece-
dent shows that the Commander-in-Chief function is no shelter from investiga-
tion. In 1792 the Congress appointed a Committee to inquire into the failure of
the expedition led by General St. Clair, with power `to call for such persons,
papers . as may be necessary to assist their inquiries.' The Committee then
asked the Secretary of War for documents. (RB 1079). A Cabinet meeting was
called to consider the request, of which our only record is an `unofficial note'
found in Jefferson's private papers. (RB 1080 n. 192). Time will not permit dis-
cussion of the weight of this note; it is discussed in detail in my study (RB
1079-84). More important, there is no record that Washington asserted to Con-
gress a claim of plenary power to withhold documents. On the contrary, the
Secretaries of the Treasury and War departments appeared to make 'explana-
tions . . . in person' and all of the documents were turned over to the Com-
mittee. In the words of Douglas Freeman, `not even the ugliest line on the flight
of the beaten troops was eliminated.' (RB 1080). Thus St. Clair demonstrates
executive recognition that the House could inquire into conduct of military
affairs under the Commander-in-Chief." 2D
V. EXECUTIVE RESPONSIBILITY UNDER ARTICLE II, SECTION 3 OF THE CONSTITUTION
Article II, section 3, of the Constitution provides in pertinent part as follows :
"Ile [the President] shall from time to time give to the Congress Information
of the State of the Union...."
Professor Berger has indicated that this provision places a "duty" on the Presi-
dent which has received insufficient attention :
"It has too mechanically been associated with annual presidential messages,
but Justice Story properly read it more broadly. The President, he stated,
"must possess more extensive sources of information, as well in regard to
domestic as foreign affairs, than can belong to the Congress. The true work-
ings of the laws ... are more readily seen, and more constantly under the view
of the executive.... There is great wisdom, therefore ... in requiring the
President to lay before Congress all facts and information which may assist
their deliberations.... [2 Story 3671.20
"This duty to supply `all facts and information' which the President has and the
Congress has not and `which may assist their deliberations' is the obverse of the
1A Id.
to Td., at 43.
2D ITearings before the Subcommittee on Separation of Powers of the Committee on the
Judiciary of the U.S. Senate on S. 1125, 92d Cong., lot sess., 293 (1971).
212 Story 367 as quoted by Berger in 12 U.C.L.A. L. Rev. 1043, 1077 (1965).
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then familiar power of the Grand Inquest to inquire. A good reason for a re-
strictive reading of the phrase has yet to be proffered, and it is contrary to
common sense." sz
It is perhaps worth noting, as does Professor Berger,'`R the comments of Senator
Edmunds in 1886:
"The `state of the union' is made tip of every drop in the bucket of the execution
of every law and the performance of the duties of every office under the
law. ... 24
If the proper understanding of Article IT, section 3. is that suggested above, it
would seem that the President may have a "duty" to disclose all Executive agree-
ments to the Congress.
VI. HISTORICAL PRECEDENTS AND EXECUTIVE DISCLOSURE
Although no historical precedents have been found which raise the precise ques-
tion of Congress' right to require the disclosure of the texts of all Executive agree-
ments, two early incidents should be mentioned for they may provide historical
impetus for Congress' power in this regard. Professor Berger has recently ex-
amined both event,--:
the Continental Congress, in creating a Department of Foreign Affairs
presided over by a Secretary. provided that `ally member of Congress shall have
access [to `all ... papers of his office'] : provided that no copy shall be taken of
matters of it secret mature without the special leave of Congress.' Here we have a
clear reflection of British and colonial practices, demonstrating that not even
'secret' matters pertaining to foreign affairs could be withheld from the legis-
latnre.""
It has been argued that the failure of the First Congress to adopt a similar
provision indicated that Congress would no longer have the same right of
inspection :
"The Members who sat in the New Congress in 1789 could not have been un-
familiar with the fact that during the existence of the Continental Congress its
Members had been entitled to see all kinds of secret data. The conclusion is
therefore inescapable that the founders of our Government, and those who sat
in the First Congress, meant to give no power to the Congress to see secret data
in the executive departments against the wishes of the President. That was a
power which the Continental Congress had and which the framers of the Con-
stitution meant for the new Congress, created by the Constitution, not to have." 20
This view, however, has received detailed criticism from Professor Berger,27
and may be briefly summarized as follows [Professor Berger's citations are to
his more detailed analysis in 12 U.C.L.A. L. Rev. 1043 (1965) ] :
"The Attorney General argues that the failure of the First Congress to make a
similar provision bespeaks an intention to withhold from Congress a similar right
of inspection. (RB 1063). But he overlooked that the First Congress required the
Secretary of the Treasury to furnish information to either House respecting 'a.11
matters' pertaining his office, a measure confirmed by Washington and drafted by
Hamilton (RB 1060), and that Attorney General Cushing later advised the Presi-
dent that all branches of the Executive department were by `legal implication'
under the same duty. (111 11964)." 2'
With respect to the impact of early history upon the legislative power of in-
quiry in general, Professor Berger offers the following conclusion :
"History delineates a virtually unlimited legislative power to demand informa-
tion from the executive branch. And if history, traditionally the index of con-
stitutional construction, is to be our guide, it may be concluded that the federal
executive power came into being subject to the established power of the legisla-
ture to demand information. It cannot therefore constitute an invasion of the
2212 U.C.L.A. L. Rev. 1076-1077 (1965).
23 Id., at 1077.
'1417 Con.,q. Rec. 2215 (1856).
12 U.C.L.A. L. Rev. 104:2, 1059 (19(15).
2c "Power of the President to Withhold Information from the Congress," Mein orandum
of U.S. Attorney General, 141 (1957), as quoted In Berger, 12 U.C.L.A. L. Rev. 1063
(1965).
12 U.C.L.A. Per. 1003-1066 (1965).
2R Hearings before the Subcommittee on Separation of Powers of the Committee on
the Judiciary of the U.S. Senate on S. 1125, 92d Cong., 1st sess., 294 (1971).
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traditional executive powers to demand information which Parliament and
colonial legislatures have long been accustomed to require." P?
A second incident which may be of historical significance in regard to Congress'
power to require the disclosure of the texts of all Executive agreements con-
cerns the demand of the House of Representatives, in 1796, for certain informa-
tion relating to the Jay Treaty. Professor Berger's analysis of the incident
follows :
"Great stress is placed in the Attorney General's Memorandum on Washing-
ton's refusal in 1796 to furnish information respecting the Jay treaty to the
House of Representatives. Washington, however, had delivered the documents to
the Senate, and the papers were open to inspection by such members of the
House as chose to go over to the Senate to read them. (RB 1085-86, 1089). The
incident repays close scrutiny. Washington explained that the House had no
'right' to the papers because treaty making had been made the sole prerogative
of the President and the Senate. But he emphasized that he had no disposition
to withhold 'any information . which could be required of him by either
House as a right.' And he indicated that such a right would have existed, for
example, had the House required the papers for purposes of impeachment.
(RB 1086). In short, given a relevant legislative function, Washington indicated,
the House had a right, which he would honor, to see executive documents.
"Even so, Washington had overlooked his own precedents. In the debate pre-
ceding the House request for the Jay papers, Edward Livingston, perhaps the
most learned lawyer who ever sat in the Congress, pointed out that 'from the
first establishment of the Constitution . the Executive had been in the
habit of free communication with the Legislature as to our external relations.'
(RB 1089). I checked out his citations as well as those of his fellow-Congress-
men, Lyman and Smith, and they fully confirm his statement. (RB 1089-90).
On December 5, 1793, Washington wrote to both Senate and House that negotia-
tions between this country and Spain were pending, and that they would 'be
made known to the Legislature in confidence only.' (RB 1090, n.242). In 1793,
he also transmitted to Congress documents of a 'confidential' nature respecting
the proclamation of Neutrality. (RB 1090, n.240). Jefferson recorded in Novem-
ber, 1793, that he had urged Washington with respect to certain matters con-
cerning France and England to 'lay before the legislature and the public what
had passed on the inexecution of the treaty,' and that the President 'decided
without reserve' to do so. (RB 1090 n.249). Later Jefferson, as Vice President,
wrote a Manual of Procedure at the request of the Senate, and stated in ? 52, 'It
has been the usage for the Executive, when it communicates a treaty to the
Senate for their ratification, to communicate also the correspondence of the
negotiators.'
"John Adams was Vice President when Washington refused the Jay papers to
the House, and he commented, 'I cannot deny the right of the House to ask for
papers.... My ideas are very high of the rights of the House of Representatives.'
(RB 1085). And his son, John Quincy Adams, after moving from the Presidency
to the House, said that 'The House had the right to demand and receive all the
papers' respecting President Polk's instructions to our Minister to Mexico. (RB
1093). Both John Adams and his son had distinguished diplomatic careers and
knew full well how far the need for secrecy stretched ; and yet both affirmed the
House's right to know." 80
VII. CoNCrusloN
This memorandum has attempted to present a legal basis upon which Congress
may predicate a right to access to the texts of all Executive agreements. The vari-
ous arguments set forth above would seem to provide a tenable basis for a consti-
tutional and constitutional/historical right of this kind. Perhaps the ultimate
significance of these arguments for those who believe that Congress has this right
can be summarized as follows :
"Negotiations with foreign powers are difficult to conduct when a lynx-eyed
Opposition sits suspiciously on watch. We might have a better foreign policy if we
had no Parliament, but we might have a worse.... We are a free people because
we can criticize freely." n
m 12 U.C.L.A. L. Rev. 1043, 1060 (1965).
W See note 28 supra.
31 Jennings, The British Constitution 82 (3d ed. 1950), as quoted by Berger In 12 U.C.L.A.
L. Rev. 1291 (1965).
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