CEASEFIRE BETWEEN THE BRANCHES: A COMPACT IN FOREIGN AFFAIRS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00552R000201170001-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: June 22, 2010
• Sequence Number: 1
• Content Type: OPEN SOURCE

STAT
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ON PA ~~ FOREIGN AFFAIRS
SUMMER 1982
Warren Christopher
CEASEFIRE BET`VEEN
THE BRANCHES:
A COMPACT IN FOREIGN AFFAIRS
hose who serve in government, especially when under
attack, are likely to be conscious-somewhat defensively per-
haps-of the spirit of the old Spanish proverb: "It is not the same
to talk of bulls, as to be in the bullring." The memory of that
sentiment has had some bearing on my observations from the safe
distance of private life. It has commended a focus on institutional
problems-those that transcend partisanship.
One such issue deserves special, constant attention. It is the
distribution within our government of authority for foreign affairs.
The country has already struggled at length with this issue. The
ordeals of Vietnam and Watergate exposed grave perils to our
constitutional structure-an accumulation of vast power in the
President's hands, and room for enormous abuse. Congress re-
sponded by passing a great deal of legislation, and some might
think the issue settled.
I think otherwise. On the basis of four years in the Department
of State, I believe the methods of operation now in place leave us
poorly equipped to conduct the kind of foreign policy our country
requires in a complex, turbulent, dangerous world. We have not
yet resolved the dilemma posed by our need to reconcile the
imperative of democracy at home with the demands of leadership
in the world.
So it is encouraging that the issue is being reopened. Specifically,
two leaders in the Congress, the Chairman of the Senate Armed
Services Committee, Senator ,john Tower, and the Chairman of
the Senate Foreign Relations Committee, Senator Charles Percy-
writing respectively in Foreign Affairs and Foreign Policy-have
Warren Christopher, currently a partner in the law firm of O'Melveny &
Myers, was Deputy Secretary of State from 1977 to 1981. He was Deputy
Attorney General of the United States from 1967 to 1969 and has held a
number of other senior and consulting positions in the U.S. government. This
article is an elaboration of remarks delivered at the John F. Kennedy School
of Government at Harvard.
CO~r"E\T UED
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990 FOREIGN AFFAIRS
raised questions about the existing equation.'
As it happens, both Senator Percy and Senator Tower belong
to the same party as the President. While they achieved a signifi-
cant degree of impartiality, the truth is that we have not yet been
able to exclude political considerations from these discussions. As
a wise man once said, "Where you stand often depends on where
you sit."
Thus, it would be quite ordinary for a Democrat to have
advocated a stronger presidency for Mr. Carter, while now en-
dorsing greater restraints upon President Reagan. After all, Pres-
ident Carter needed enough power to do what was "right";
President Reagan, on the other hand, needs to be kept from
"mistakes."
But as Americans as well as partisans, it is important to think
institutionally as well as politically. Perhaps that process will be
advanced if people who are no longer in office speak out about
how power should be shared. So I propose to downplay, for the
moment, my doubts about where President Reagan is leading us,
and to concentrate instead on the means by which our course is
set-on what role the Executive, the Congress and the courts
should play to preserve a rational system of balances and checks
among the three branches.
I do this in these pages less to declare conclusions than to invite
further discussion-to share some experiences and thoughts on the
distribution of power in foreign affairs, and to suggest that all who
have been concerned with the issue should now devote additional,
careful attention to it.2
Before turning to some thoughts for the future, it is worth
looking at the way the courts and the Congress have recently
related to the Executive on international matters.
As to the courts, Alexis de Tocqueville once said that, "Scarcely
any political question arises in the United States that is not
resolved, sooner or later, into a judicial question." That was true
of the major issues of presidential power faced in the four years of
the Carter Administration. It is quite stunning that five significant
'John G. Tower, "Congress Versus the President: The Formulation and Implementation of
American Foreign Policy," Foreign Affairs, Winter 1981/82; and Charles H. Percy, "The Partisan
Gap.- Foreign Police. Winter 1981/82.
2 The distinct perspectives of the Executive and the Congress have been amplified in a
number of important articles including Lee H. Hamilton and Michael H. Van Dusen, "Making
the Separation of Powers Work," Foreign Affairs, Fall 1978; Douglas J. Bennet, Jr., "Congress in
Foreign Policy: Who Needs It?" Foreign Affairs, Fall 1978; Lloyd N. Cutler, "To Form a
Government." Foreign Affairs, Fall 1980; and Charles McC. Mathias, Jr., "Ethnic Groups and
Foreign Policy." Foreign Affairs, Summer 1981.
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CEASEFIRE BETWEEN THE BRANCHES 991
foreign policy decisions of that period were challenged in the
courts-and were bought to final decisions within President
Carter's term or shortly after it ended. The resolution of those
issues brought the basic judicial doctrines on foreign affairs au-
thority into sharp focus.
In the early part of his Administration, President Carter spent
a great deal of his political capital-which, given his narrow
electoral margin, was already in short-supply-on gaining ap-
proval of the two Panama Canal Treaties and of legislation to
carry them out. Indeed, Clark Clifford, perhaps our most sophis-
ticated observer of presidential power, thought he spent too much.
The constitutional requirement for ratifying treaties-two-thirds
of those present, or as many as 67 out of 100 Senators-is a
difficult standard, and the Administration had to struggle for
almost every vote. In all, some 21 reservations, conditions or
amendments were affixed to the Treaties before they were ap-
proved.
Among other things, the ratification struggle required negotia-
tion, with the active involvement of the Senate leadership, of the
so-called DeConcini condition, named for the Senator from Ari-
zona. That condition gave the United States the right to take in
Panama whatever steps it deemed necessary to. reopen the Canal
if it were closed. The DeConcini condition inflamed Panamanian
nationalism, and it was necessary to work out additional language
in the second Treaty providing that the rights reserved to the
United States did not allow intervention in Panama's internal
affairs.
But even after the Treaties were ratified, the battle was not
over. Sixty members of the House of Representatives filed suit
challenging the constitutionality of the transfer of the Canal. The
Congressmen based their argument on Article IV, Section 3,
clause 2 of the Constitution which. provides that the Congress
"shall have Power to dispose of... Territory or other Property
belonging to the United States." They contended that this clause
proscribes dispositions of U.S. property by self-executing treaties,
which are ratified by the Senate only. Rather, they said the action
of both Houses of Congress is required.
In upholding the transfer, the Court of Appeals for the District
of Columbia Circuit distinguished the property clause from those
provisions of the Constitution which are by their terms exclu-
sive, such as the grant to Congress of the power 'to appropriate
funds? The court concluded that in the international setting, the
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992 FOREIGN AFFAIRS
treaty power is another constitutionally permissible means of
transferring property owned by the United States to other coun-
tries. The Supreme Court declined to hear the case.
President Carter's decision in December 1978 to downgrade our
relations with Taiwan and recognize the People's Republic of
China provided another significant test of presidential power. The
President's termination of the Mutual Defense Treaty with Tai-
wan was challenged on constitutional grounds by Senator Barry
Goldwater and others. Their lawsuit contended that since a treaty
cannot go into force without the , consent of the Senate, the
termination of a treaty should also require either the same two-
thirds majority of senators present, or else the concurrence of
majorities in both the House and the Senate.
The U.S. District Court for the District of Columbia agreed
with the Senators,4 but their theory fared badly on appeal. The
Court of Appeals for the District of Columbia Circuit held that
President Carter acted within his powers. Though citing a variety
of factors in its decision, the court relied heavily on the fact that
the treaty itself contained a termination clause, which was without
conditions or designation as to who could exercise it. The court
said the "President's authority as Chief Executive is at its zenith
when the Senate has consented to a treaty that expressly provides
for termination on one year's notice. ,5
This "on-the-merits" analysis was rendered unnecessary by the
Supreme Court, which ordered that the original complaint be
dismissed.6 Four Supreme Court justices concluded that the case
presented a "non justiciable" . political question and a fifth con-
cluded that the case was not "ripe" for review because Congress
had not formally challenged the President's action. A sixth justice
concurred in the result, and a seventh dissented from the view
that the issue was non justiciable, agreeing with the Court of
Appeals that the President clearly had power to act.
A third court test of presidential power raised the issue of
distinguishing between treaties, which require Senate approval
for ratification, and executive agreements, which do not. The
challenge was to President Carter's 1977 decision to return to the
people of Hungary the "Holy Crown of St. Stephen." The crown
had been given to Stephen by Pope Sylvester in 1000 A.D., when
Hungary became a state in the international system of Europe;
thus, it had great symbolic importance to the people of Hungary.
4 Goldwater v. Carter, 481 F. Supp. 949 (1979).
"Goldwater v. Carter, 617 F.2d 697. 708 (D.C. Cir. 1979).
Goldwater v. Carter. 444 U.S. 996 (1979).
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CEASEFIRE BETWEEN THE BRANCHES 993
In 1945, lest it fall into other hands, the Hungarian Commander
of the Crown Guards entrusted the crown to the United States for
safekeeping. President Carter's decision to return it prompted
opposition from a number of Hungarian nationals and a lawsuit
by Senator Robert Dole, who contended that the agreement was
either a modification of an old treaty, or else a new treaty, and
therefore required approval by two-thirds of the Senate.
In rejecting Senator Dole's' action, the District Court for Kansas
concluded that this particular transaction "has the indicia of an
Executive Agreement."7 On appeal, however, the Court of Ap-
peals for the Tenth Circuit, relying on Baker v. Carr, the landmark
case on "political questions," held that the controversy was of a
political character not susceptible to judicial handling.' It said the
court had "no way of ascertaining the interests of the United
States, or of its people, in the controversy." The Supreme Court
did not hear the case.
A fourth case involved the Iran hostage settlement agreements,
the Declarations of Algiers, and the disposition of billions of
dollars in Iranian assets which had been frozen by President
Carter in November of 1979, after the American Embassy in
Tehran and the Embassy's personnel were seized. The hostage
settlement provided that a portion of those assets would be
returned to Iran, and that the underlying claims asserted against
those assets would be settled by an Iran-U.S. Claims Tribunal,
out of a replenishable security fund provided by Iran for that
purpose.
In formulating the hostage agreements, the U.S. negotiators
had been very conscious of the limits of presidential power. Yet
the negotiating situation and the time constraints seemed to rule
out action by the Congress. Therefore, it was vital to cast the
agreements in a way that would permit action by the President
alone. But a company that had perfected a claim against Iran
subsequently challenged the President's action, claiming it ex-
ceeded his powers.
The President was upheld unanimously by the Supreme Court.9
The central questions were whether the President could, on his
own, nullify attachments, order the transfer of Iranian assets, and
suspend the enforceability of claims against Iran in U.S. courts.
While the Court found specific statutory authorization for the
Dole v. Carter, 444 F. Supp. 1065, 1070 (1977).
8 Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977). See Baker v. Can. 369 U.S. 186 (1962).
Dames & Moore v. Regan, 453 U.S. 654. 680. 688 (1981).
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994 FOREIGN AFFAIRS
President's treatment of the assets, it found none for the suspension
of claims in U.S. courts. Nevertheless, it said that the statutes
indicated Congressional acceptance of wide leeway for the Presi-
dent to settle claims against foreign countries. It was crucial that
"Congress has implicitly approved the practice of claim settlement
by executive agreement" by, among other things, adopting the
International Claims Settlement Act of 1949 to allocate and
distribute funds resulting from such settlements. This was part of
a long history of Congressional acquiescence in such settlements
without the advice or consent of the Senate.
It also was important that the hostage settlement agreement
provided an alternative channel, the Iran-U.S. Claims Tribunal,
for settling the claims. And, significantly, the Court noted that
the settlement was "a necessary incident to the resolution of a
major foreign policy dispute between our country and another."
The fifth case involved Philip Agee, a former employee of the
Central Intelligence Agency. It is widely known that members of
the CIA operate abroad "under cover." Mr. Agee adopted the
practice of publishing the names of Americans abroad who, he
said, are employees of the CIA. Every person so identified became
a candidate for expulsion and sometimes a target for assassination.
After much deliberation Secretary of State Cyrus Vance revoked
Agee's passport, and Agee challenged his power to do so.
Agee contended, first, that the regulation under which his
passport was revoked exceeded the power delegated by the Con-
gress in the Passport Act of 1926. He also maintained that the
revocation of his passport impinged upon. his constitutional rights,
in particular his Fifth Amendment due =process right and right to
travel and his First Amendment right of free speech.
In 1980 the lower courts agreed with Agee's contention; in 1981,
however, the Supreme Court reversed.10 It noted a long history of
Executive discretion in granting, withholding or revoking pass-
ports, and relied on subsequent Congressional enactments in the
passport area as evidence that Congress had approved regulations
asserting authority to withhold passports on national security or
foreign policy grounds. On the constitutional claims, the Court
held that the right to hold a passport-involving "the freedom"
of international travel as opposed to the different "right" to travel
domestically-is subordinate to national security and foreign
policy considerations and thus subject to reasonable governmental
regulation. And the Court held that Agee's campaign against the
10 See Agee v. Vance, 483 F. Supp. 729 (1980), affirmed in Agee v. Muskie, 629 F.2d 80 (1980);
reversed in Agee v. Haig, 453 U.S. 280 (1981).
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CEASEFIRE BETWEEN THE BRANCHES 995
CIA involved not only speech, but also conduct, which is not
afforded First Amendment protection.
In all five of these cases, the validity of an action of the
Executive Branch in a foreign policy matter was challenged. And
in each case, the challenge was rejected by the courts. While the
judicial reasoning differed from case to case, the outcome in all
instances was to let the President have his way.
It is evident that cases involving foreign affairs raise, in the
words of justice Rehnquist in the hostage settlement case, search-
ing questions about "the manner in which our Republic is to be
governed." They remind us that we have a government charac-
terized by what Alexander Hamilton called "vibrations of power."
The cases came to the courts for decision precisely because the
distribution of authority in our government is not exactly defined.
The results reflect the tradition of judicial deference to Execu-
tive action in the field of foreign affairs. As Chief Justice Burger
said in the Agee case, "Matters intimately related to foreign policy
and national security are rarely proper subjects for judicial inter-
vention." When a foreign policy action is challenged, courts
exhibit an almost instinctive wariness. They readily question the
"standing" of the parties, resort to the "political question" or
"ripeness" doctrines, or search for an indication of Congressional
authorization.
Courts may be particularly hesitant to intervene where, as in
three of the cases mentioned, the suits are commenced by individ-
ual Congressmen or small groups of members, rather than by
Congress as a whole. In such circumstances, judges may feel that
the lawsuits reflect the failure of those bringing the actions to
sustain their viewpoint in the Congress.
On foreign policy matters, the deference of the courts to the
President is, I think, healthy. We should expect, and welcome,
somewhat closer judicial scrutiny of the other branches when, as
in the Agee case, First Amendment issues are involved. But as a
general proposition, the judicial system is not well suited for a
major role in the foreign policy realm.
However, looking at the relationship between the President and
the courts scarcely begins the analysis. It is revealing that all of
the five court cases involved the allocation of power between the
President and the Congress. And that is where the real fight has
been.
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g.
The best time to bring such a compact into operation would be
the commencement of a new Administration after a national
election, or perhaps after a Congressional election. The sense of
unity and national purpose which usually marks such periods
would provide the best environment for seeking the mutually
reinforcing commitments and mutually accepted restraints de-
scribed above. The forum for confirming such undertakings could
be a meeting between a broad range of Congressional leaders and
the President. and key national security officials, perhaps some-
what comparable in composition to the day-long meeting held by
President-elect Carter at the Smithsonian Institution in December
1976. Thereafter, a small group (perhaps the Secretary of State
and bipartisan leaders from both Houses) could be charged with
monitoring observance of the compact and identifying potential
violations.
If the general concept of the compact is thought to have merit,
it could usefully be ventilated by a special hearing of the Senate
Foreign Relations Committee or the House Foreign Affairs Com-
mittee. Or one of the many institutes dedicated to foreign affairs
might draw together a group of scholars and public officials to
probe its premises and discuss implementation.
Whatever the next step, I believe such a new compact is needed,
not to rearrange our system, but to refine it slightly, so that the
framers' ingenious plan may continue to both embrace democracy
and effectively defend it.
EXCERPTED.
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