TRANSMITTAL OF EXECUTIVE AGREEMENTS TO CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP73B00296R000400130002-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 9, 2016
• Document Release Date: July 10, 2001
• Sequence Number: 2
• Publication Date: January 30, 1972
• Content Type: REPORT

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92D CONGRESS
od Session
t SENATE I
REPORT
No. 92-591
TRANSMITTAL OF EXECUTIVE AGREEMENTS TO
CONGRESS
JANUARY 19, 1972.-Ordered to be printed
Mr. FULBRIaHT, from the Committe on Foreign Relations,
submitted the following
REPORT
The Committee on Foreign Relations, to which was referred the
bill (S. 596) to require that international agreements other than
treaties, hereafter entered into by the United States, be transmitted
to the Congress within 60 days after the execution thereof, having
considered the same, reports favorably thereon without amendment
and recommends that the bill do pass.
The bill was approved by the committee on December 7, 1971, with-
out amendment. The essential provision of the bill reads as follows :
"The Secretary of State shall transmit to the Congress the
text of any international agreement, other than a treaty, to
which the 'United States is a party as soon as practicable after
such agreement has entered into force with respect to the
United States but in no event later than 60 days thereafter.
However, any such agreement the immediate public disclosure
of which would, in the opinion of the President, be prejudicial
to the national security of the United States shall not be so
transmitted to the Congress but shall be transmitted to the
Committee on Foreign Relations of the Senate and the Com-
mittee on Foreign Affairs of the House of Representatives
under an appropriate injunction of secrecy to be removed
only upon due notice from the President."
COMMITTEE ACTION
Public hearings on S. 596, which had been introduced in the Senate
by Senator Case on February 4, 1971, provided the committee with
testimony expressing the favorable views of a distinguished historian
and a leading academician and the unfavorable views of the admin-
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istration. On October 20, 1971, Prof. Ruhl J. Bartlett of the Fletcher
School of Law and Diplomacy provided the committee with an analy-
sis of the problem of secrecy to which this bill addresses itself in the
broader context of the historical problem of executive agreements as
means of contracting si nific n for Ko__mmitments. On the basis
of this historical perspective, roo essor Bart ett expressed his view
that-"this proposed measure is so limited in its scope, so inherently
reasonable, so obviously needed, so mild and gentle in its demands, and
so entirely unexceptionable that it should receive the unanimous ap-
proval of the Congress."
On the same day the committee heard testimony by Prof. Alexander
M. Bickel of the Yale University Law School, who also expressed
strong support for the measure. "In requiring, as S. 596 would do,"
said Professor Bickel, "that international agreements other than
treaties to which the United States is a party be transmitted to it,
Congress would be exercising a power that, in my opinion, clearly
belongs to Congress under the Constitution."
Professor Bickel also expressed his belief that "Congress has too
long tolerated, indeed cooperated in, a diminution of its role in the
conduct of foreign affairs and in the decision of questions of war and
peace-a diminution that approaches the vanishing point."
In this respect, Professor Bickel concluded, the balance of power
between Congress and the President ought to be redressed, to which
end S. 596 would constitute "an important step."
The views of the administration were presented to the Committee
on October 21, 1971, by Mr. John R. Stevenson, Legal Advisor to the
Department of State. Mr. Stevenson expressed the administration's
view that the provision of a reliable flow of information to Congress
could best be provided for by "practical arrangements" of a nonlegis-
lative nature. Conceding that in the past they (the Congress) have
not been informed on a current basis but only ad hoc some years later,
Mr. Stevenson concluded nonetheless that "we are dealing with a ques-
tion of practical arrangements, not with a question of right or author-
ity which would in any way be altered by statute."
On December 7, 1971, the bill was considered by the committee in
executive session and ordered reported without amendment and with-
out dissent.
The legislative history of S. 596 goes back to 1954 when a similar
proposal was introduced in the Senate by Senators Homer Ferguson
of Michigan and William Knowland of California. It was reported
favorably to the Senate in August 1954 but no action was taken on the
bill. The proposal was revived by Senator Knowland in 1955 and
subsequently, in July 1956, favorably reported and then adopted
unanimously by the Senate. No action was taken by the House of
Representatives.
As adopted in 1956, and as introduced by Senator Case in February
1971, the bill was in a form which had made it acceptable to the Eisen-
hower administration. As originally conceived in 1954, the proposal
called for the submission of all executive agreements to the Senate
within 30 days. The Eisenhower administration, through its Assistant
Secretary of State for Congressional Relations, Thruston B. Morton,
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objected that the 30-day time period was too short and objected fur-
ther to the absence of a provision for the protection of highly classi-
fied agreements. in order to meet that objection, the bill was amended
to provide for a 60-day transmittal period and also to permit the
President, at his option, to submit sensitive agreements not to the
Senate as a whole but to the Committee on Foreign Relations "under
an appropriate injunction of secrecy." IVith these amendments the
Eisenhower administration offered no objection to the bill.
As reintroduced by Senator Case in 1971, S. 596 was broadened to
require the reporting of agreements to the House of Representatives
and its Committee on Foreign Affairs as well as to the Senate and its
Committee on Foreign Relations. In all other respects the bill as intro-
duced by Senator Case and favorably reported by the Foreign Rela-
tions Committee in 1971 is the same as the proposal to which the
Eisenhower administration offered no objection in 1954 and 1955.
In the view of the Foreign Relations Committee, S. 596 embodies
a proposal which is highly significant in its constitutional implica-
tions. The bill does not undertake to resolve fundamental questions
relating to the treaty power of the Senate and the frequently counter-
vailing claim-or simple use-of executive authority to enter into
binding agreements with foreign countries without the consent of
Congress. S. 596 undertakes only to deal with the prior, simpler, but
nonetheless crucial question of secre. The committee shares Pro-
fessor Bickel's view that the adoption' of this bill would be "an im-
portant step" in the direction of redressing the balance of power
between Congress and the President in the conduct of foreign relations.
The committee does not accept the administration's view, as ex-
pressed by Mr. Stevenson, that the sole requirement for the flow of
reliable information to Congress is the working out of "practical
arrangements." As outlined by Mr. Stevenson, these "practical ar-
rangements" would still fail to establish the obligation of the executive
to report all agreements with foreign powers to the Congress. In the
absence of legislation, even the soundest of "practical arrangements"
would leave the ultimate decision as to whether a matter was to be
reported or withheld to the unregulated judgment of the executive.
It is well and good to speak, as Mr. Stevenson does, of the execu-
tive's recognition of the needs of Congress and of the desirability of
"mutual cooperation and accommodation" between the two branches
of government. These are highly desirable, but the principle of manda-
tory reporting of agreements with foreign countries to the Congress is
more than desirable; it is, front a constitutional standpoint, crucial and
indispensable. For the Congress to accept anything less would repre-
sent 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 infor-
mation is more crucial than the fact and content of agreements with
foreign nations.
As the committee has discovered, there have been numerous agree-
ments contracted with foreign governments in recent years, particu-
larly agreements of a military nature, which remain wholly unknown
S. Rept. 92-591 0
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to Congress and to the people. A number of these agreements have been
uncovered by the Symington Subcommittee on Security Agreements
and Commitments Abroad, including, for example, an agreement with
Ethiopia in 1960, agreements with Laos in 1963, with Thailand in 1964
and again in 1967, with Korea in 1966, and certain secret annexes to the
Spanish bases agreement.
Section 112(a) of title I of the United States Code now requires the
Secretary of State to compile and publish all international agreements
other than treaties concluded by the United States during each calen-
dar year. The executive, however, has long made it a practice to with-
hold those agreements which, in its judgment, are of a "sensitive"
nature. Such agreements, often involving military arrangements with
foreign countries, are frequently not only "sensitive" but exceedingly
significant as broaden J rommitLnents x,.the- United States. Although
tIi y are sometimes characterized as "c encyplans," they may
in practice involve the United States in war. For this reason the com-
mittee attaches the greatest importance to the establishment of a legis-
lative requirement that 1 such..a,greements be submitted to Congress.
The committee fury recognizes the sensitive nature of many of the
agreements the executive enters with foreign governments. At some
point the committee may wish to explore the question whether the
executive is exceeding his constitutional authority in making some of
these agreements. That, however, is not the issue to which S. 596
addresses itself. Its concern is with the prior, more elemental obliga-
tion of the executive to keep the Congress informed of all of its-foreign
transactions, including those of a "sensitive" nature. Whatever ob-
jection on security grounds the executive might have to the submis-
sion of such information to Congress is met by the provision of the
bill which authorizes the President, at his option, to transmit certain
agreements not. to the Congress as a whole, but to the two foreign
affairs committees "under an appropriate injunction of secrecy to
be removed only upon due notice from the President."
As reported by the Forei n Relations Committee, S. 596 would not
require the submission gjntern . ,i nn.l_.greements en-
tered t e enactment of the bill. It is the strongly held
view of the committee, however, t at t e absence of a retroactive pro-
vision in this bill is not to be interpreted as license or authority to
withhold previously contracted agreements from the Congress. In
kee in with the spirit and intent of the bill, the committee would ex-
peot executive to make all such ?previously enacted agreements
ayailabli to tf~c, 4ngress or its foreign affairs commlUces at their.
r nd in accordance with the procedures defined in the bill.
clusion,the committee reiterates its view that the proposal
contained in S. 596 is a significant step toward redressing the imbal-
ance between Congress and the executive in making of foreign policy.
Twenty years ago Congres undertook an examination of the broader
issue of the treaty power through its consideration of the so-called
Bricker amendment. One of the essential purposes of the Bricker
amendment, in the various forms in which it was considered by Con-
gress, was to place restrictions on the use of executive agreements as
a means of contracting significant agreements with foreign powers in
circumvention or violation of the treaty power of the Senate.
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The present proposal, which was originally initiated as a modest
alternative to the Bricker amendment, does not purport to resolve the
underlying constitutional question of the Senate's treaty power. It
may well be interpreted, however, as an invitation to further consid-
eration of this critical constitutional issue. For the present, however,
the committee strongly recommends the adoption of S. 596 as an effec-
tive means of dealing with the prior question of secrecy and of assert-
ing the obligation of the executive to report its foreign commitments
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92D CONGRESS HOUSE OF REPRESENTATIVES REPORT
Od Session j No. 92-1301
TRANSMITTAL OF EXECUTIVE AGREEMENTS
TO CONGRESS
AUGUST 3, 1972-Committed to the Committee of the Whole house on the State
of the Union and ordered to be printed
Mr. ZABLOCKI, from the Committee on Foreit,,n Affairs,
submitted the following
REPORT
[To accompany S. 5961
Th. Committee on Foreign Affairs, to wnom was referred the bill
(S. 596) to require that international agreements other than treaties,
hereafter entered into by the United States, be transmitted to the
Congress within sixty days after the execution thereof, having con-
sidered the same, r-port favorably thereon without amendment and
recommend that the bill do pass.
S. 596 was passed b,y vote of 81 to 0 in the Senate on February 16,
1972. It was referred to the Foreign Affairs Committee on February 17,
where identical bills (H.R. 14365 by Mr. Zablocki and H.R. 14647
by Mr. Whalen) were already pending. A hearing on the measures
was held by the Subcommittee on National Security Policy and
Scientific Developments on June 19. Witnesses were Senator Clifford
P. Case of New Jersey, the author of S. 596, and 1\/Ir. Carl Salons,
deputy legal adviser to the Department of State.
The subcommittee subsequently approved sending S. 596 to the
full committee for consideration. On August - , the committee
by voice vote approved the measure without amendment and ordered
it reported to the House.
MEANING AND BACKGROUND OF THE BILL
The legislation is not complex.
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
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agreement has entered into force, but in no case more than 60 days
thereafter.
Second, for those agreements which are sensitive and must be kept
secret in the national interest, S. 596 provides that the President should
transmit them not to the Congress as a whole, but to the House Foreign
Affairs Commit lee and the Senate Foreign Relations Committee.
Those agreements would be held tinder an appropriate injunction of
secrecy which could be removed only upon due notice from the
President.
The bill is not, retroactive and would not require that the more than
4,360 existing international agreements to which the United States is
presently it party be transmitted to the Congress. All international
executive agreements executed after the legislation goes into effect,
however, would be covered. The United States enters into approxi-
mately 200 such agreements each year.
As State Department witnesses have readily admitted the Congress
has not always been kept adequately informed about the international
executive agreements entered into by the President and officials of
the executive branch on behalf of the United States.
For example, the provisions of the Yalta agreement at the end of
World War 11 were not publicly disclosed for 3 years, and the entire
text of the Yalta agreement was not published until 1947-a sit-
uation which resulted in considerable controversy in the Congress and
among the American public.
More recently, the Symington Subcommittee on National Commit-
ments uncovered contemporary examples of secret agreements entered
into without adequate reference to the Congress.
Each incident in which such secret agreements become known
create tensions and irritations between the Congress and the executive
branch which severely inhibit carrying out an effective foreign policy.
In recent testimony before House Foreign Affairs Subcommittee on
National Security Policy and Scientific Developments, Mr. McGeorge
Bundy stated that:
The most serious present difficulty in the framing and
execution of the foreign policy of the United States is the
almost complete breakdown of effective relations between the
executive anal legislative branches of the government.
S. 596 is a step toward restoring a proper working relationship
between the Congress and the executive branch in the area of foreign
affairs. By establishing in law a formal procedure for the transmittal
to Congress of all executive agreements, the bill would eliminate one
potential source of friction.
State Department spokesmen have expressed their preference for
informal "practical arrangements" for providing Congress with in-
formation about executive agreements, rather than passage of legisla-
tion in this area.
Informal procedures would not, however, address the basic problem
involved. Such arrangements would still leave with the executive
branch the discretion to disclose or not to disclose as it saw fit. More-
over, informal procedures worked out by the present administration
with the Congress would not be binding on future administrations and
likely would require renegotiation every few years.
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Working on a "case by case" basis, therefore, is not likely to be a
satisfactory answer to the present difficulties and might well result in
an exacerbation of tensions.
It should be pointed out that this legislation is not new. Its history
goes back to 1954 when a similar proposal was introduced in the Senate
by Senators Homer Ferguson of Michigan and William Knowland of
California. In 1956 it was adopted unanimously in the Senate but the
House failed to act.
The Eisenhower administration had a hand in shaping the bill,
which was seen as an acceptable alternative to measures affecting
executive agreements which had been offered by Senator John Bricker
of Ohio. S. 596 is virtually identical to the earlier legislation.
In hearings before the Senate Foreign Relations Committee last
October, the State Department recommended against the adoption of
S. 596 in favor of mutually acceptable practical arrangements. In
May, following unanimous Senate passage, the Department changed.
its position and stated that the executive branch would not oppose
the bill's adoption if Congress believed that to be desirable.
Spokesmen for the Department of State have, however, raised
several issues about the legislation which require additional committee
comment.
ADDITIONAL COMMITTEE COMMENTS
1. What constitutes an international agreement.-During committee
hearings a State Department spokesman raised the question of what
kind of arrangements constitute international executive agreements
within the meaning of the legislation. He pointed out that many
exchanges involve administrative working details for carrying out a
treaty or agreement or are in the nature of commercial contracts
relating to sales of equipment and commodities.
Clearly the Congress does not want to be inundated with trivia.
At the same time, it would wish to have transmitted all agreements of
any significance.
2. Physical security of classified agreements.-A question was raised
by the State Department spokesman on possible difficulties involved in
establishing a viable working procedure for transmitting sensitive
agreements, including measures for their storage, rules on their removal
from storage areas, and questions of access by various personnel.
The committee does not believe that the situation poses any real
problem. A number of classified materials already repose within the
committee offices. They are safeguarded by security procedures which
have proved effective in the past. Should the executive branch believe
that the present system requires enhancement as a result of the
passage of S. 596, the committee stands ready to cooperate..
In that context, it should be noted that the bill leaves to the dis-
cretion of the President which agreements shall be made public
and which shall be kept secret. Further, under the bill, once an
agreement has been classified, only lie has the right to declassify it.
The right of declassification is not open to the committee or to any
Member of Congress. Thus, the legislation helps protect against
unauthorized disclosures.
3. Transmittal of all executive agreements.-Question was also
raised by the State Department spokesman about the authority of
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Congress to oblige the President to transmit the texts of all inter-
national executive agreements. The contention was that in some cases
the Congress would not have a legitimate interest in the texts of agree-
rnonts concluded by the President with foreign states and that he
could keep that information from Congress under a right of executive
privilege.
Study of this issue by the committee, aided by specialists from the
American Law Division of the Congressional Research Service,
Library of Congress, does not indicate any constitutional or other
legal basis for such a view.
The right of the, President to conclude executive agreements is not
in question here, or in any way affected by S. 596. Thus, the bill in no
way transgresses on the independent authority of the Executive in the
area of foreign affairs.
As the State Department itself has recognized, however, executive
agreements have the same effect as treaties in international law. To
the nations with which they have been concluded, there is no difference
between the two. That is, executive agreements no less than treaties
bind the United States of America as a whole nation-not just the
President or administration which makes them-under international
law.
Nor, under international. law, is the duration of an executive agree-
ment limited by the tenure of the President who concluded it. It
continues to be binding on the Nation after he has left the scene, just
as a treaty tivould.
If the contention of the Department of State is accepted, the
Congress, in effect, would agree that the President has the. right to
bind it, and the rest of the Nation, to agreements in perpetuity with
foreign nations about which the Congress has no right to know.
Such a situation is clearly a distortion of the constitutional grant of
power to both the executive and legislative branches in the area of
foreign affairs, and smacks of the practice of the English sovereigns
against which our Founding Fathers were reacting.
Under Article t, Section 8, of the Constitution the Congress is
enipowered to Hake laws "necessary and proper" for carrying into
execution all powers vested by the Constitution in the Government of
the United States or in any officer of that government. Under that
authority, which includes the domain of foreign affairs, the Congress
clearly has the power to require the di.sclosere to itself of the texts of
all international executive agreements.
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