CONGRESS VERSUS THE PRESIDENT: THE FORMULATION AND IMPLEMENTATION OF AMERICAN FOREIGN POLICY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00552R000606720006-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: August 27, 2010
• Sequence Number: 6
• Content Type: OPEN SOURCE

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ARTICLE AFFEAREL
ON PAGE___
FOREIGN AFFAIRS
WINTER 1981/82
CONGRESS VERSUS THE PRESIDENT: THE
FORMULATION AND IMPLEMENTATION
OF AMERICAN FOREIGN POLICY
The President is the sole organ of the nation in its external relations,
and its sole representative with foreign nations.
-John Marshall
March 7, 1800
6th Congress
ne of the oldest conflicts in the American system of
government is that between Congress and the President over the
right to formulate and implement foreign policy. Is the President
solely responsible for the conduct of external relations? Is the
Congress an equal partner? Or does Congress have the right to
shape U.S. policy by enacting legislation which proscribes a
President's flexibility? These are not just debating points for
historians and constitutional lawyers, but critical issues which
need to be addressed if we are to see the successful exercise of
American diplomacy in the 1980s. Our effectiveness in dealing
with the problems ahead, especially U.S.-Soviet competition in
the Third World, will depend to a significant degree on our ability
to resolve the adversary relationship between the President and
Congress.
The struggle for control of foreign policy came to the fore in the
twentieth century, with America's reluctant entry into world
affairs, two World Wars, and a smaller, but more complex,
postwar bipolar world characterized by the increasing interde- j
pendence of nations. The first significant Congressional challenge
to the Executive's foreign policy prerogative occurred during the
interwar years. After the Senate rejected President Wilson's Ver-
sailles Treaty in 1920, Congress continued to assert itself in the
formulation of foreign policy. By the 1930s, a strong Congress was
able to prevent presidential initiative in the critical prewar years.
The almost universal consensus today is that this Congressional
intrusion had been a disaster and had inhibited the United States
from playing a useful role in Europe that might have prevented
World War II.
Following the Japanese attack on Pearl Harbor and our entry
into the Second World War, Congress and the President stood in
agreement over the direction of American foreign and military
policy. Congressional intervention all but ceased.
The post-World War II period was marked by a reasonable
balance between Congress and the President in the foreign policy
decision-making process. In fact, Presidential foreign policy ini-
tiatives were generally accepted and reinforced by bipartisan
support on Capitol Hill. American foreign policy was fairly co-
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herent and consistent through changing complexions of the body
politic. The United States was perceived as a reliable ally and its
leadership generally accepted with a high degree of confidence by
the -non-communist world. But the relative stability between
Congress and the President began to erode in the early 1970s with
Congressional disenchantment over the Vietnam War. By mid-
decade the two branches were locked in a struggle for control of
American foreign policy. To a certain extent Congress won, and
the balance between Congress and the President has swung dan- I
gerously to the legislative side with unfavorable consequences for
American foreign policy.
If the balance is not soon restored, American foreign policy will
be unable to meet the critical challenges of the 1980s. We are
entering an era of fast change and increasing volatility in world
affairs. Political instability and regional conflict are on the rise,
especially in the Third World. Developing nations in many parts
of the world are being torn apart by civil wars between pro-West
and Soviet-supported factions, subverted by externally supported
insurrection, or subjected to radical or reactionary anti-Western
pressures. The industrialized economies of the West are ever more
dependent on a lifeline of resources from an increasingly vulner-
able part of the world. The Soviet Union has pursued an aggressive
interventionist policy on its periphery and abroad, supported by
its emerging global force projection capability and its successful
use of less direct means of projecting power.
We may well be in a situation today which is analogous to that
of the late 1930s, when America's inability to play a more active
role in world affairs helped permit the Axis to realize its objectives
without serious challenge. During this period Congress tied the
President's hands, with disastrous consequences. Now we are back
in the same situation, and risk making the same mistakes. If the
United States is prevented from playing an active role in counter-
ing Soviet and Soviet proxy involvement in the Third World, the
1990s could well find a world in which the resource-rich and
strategically important developing nations are aligned with the
Soviet Union.
AU D
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After the Indochina debacle, there was a raft of Vietnam-
syndrome legislation that sought to prevent the President from
getting us involved in "future Vietnams." The Tunney Amendment
to the Defense Appropriations Act of 1976 (P.L. 94-212), which
passed the Senate on December 19, 1975, prohibited the use of
"funds appropriated in this Act for any activities involving Angola
other than intelligence gathering."' My colleagues feared that
President Ford's attempts to offer minimal assistance to the pro-
West UNITA (National Union for the Total Independence of An-
gola) and FNLA (National Front for the Liberation of Angola).
factions would somehow embroil us in "another Vietnam." The
domestic debate over whether we should become involved in
Angola sent a clear signal to the Soviets and their Cuban proxies.
They knew that the risk of U.S. intervention was low, and the
possibility of continued U.S. assistance to the pro-Western factions
slim.
Although the Soviet-Cuban airlift halted temporarily in Decem-
ber with President Ford's stern warning to the Soviet Ambassador,
the airlift resumed with a vengeance. following passage of the
Tunney Amendment on December 19, 1975. The number of
Cubans in Angola doubled as they began flying in fresher troops
for what was to become an all-out offensive against pro-Western
forces. By January the Soviet Union had increased its military
assistance to the MPLA (Popular Movement for the Liberation of
Angola) and stationed Soviet warships in the vicinity of Angola.
They began extensive ferrying operations for Cuban troops. It was
clear that the United States had lost whatever leverage it might
have had to persuade Soviet leaders to reduce Soviet and Cuban
involvement in Angola.
With Angola the Soviet Union entered a new phase; never
before had it or its surrogate Cuban army attempted such large-
scale operations in Africa or anywhere else in the Third World.
Their successful intervention in Angola bestowed on the Soviet
Union and Cuba the image of dependable allies and supporters
of radical movements- in southern Africa. The United States by
contrast was portrayed as having lost its taste for foreign involve-
ment after Vietnam, and as being domestically divided over a
foreign policy strategy. The moderate black African states lost
confidence in America's willingness to stem the tide of Soviet
involvement in the region.
After being reduced to sporadic guerrilla engagements for over
a year, in July 1977 the pro-West UNITA faction declared its
intention to renew the fight. Following this announcement, the
Soviets and Cubans increased their efforts. As of late 1979, there
were some 19,000 Cuban troops, 6,000 Cuban civilian technicians
and 400 to 500 Soviet advisors in Angola. Although the guerrilla
war continues, the Clark Amendment prohibits the United States
from offering any aid to the pro-Western faction. The Clark
Amendment prevents us from responding to Soviet and Cuban
involvement in Angola, and leaves open to them the mineral-rich, .
strategically important region of southern Africa.
GONTINITEI,)'}
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Finally, two of the most damaging Congressional intrusions into
national security policy were the Senate Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities (the so-called Church Committee) and the Hughes-Ryan
Amendment to the Foreign Assistance Act (P.L. 93-189). As vice-
chairman of the Church Committee (1975-76) I sought to limit
the damage to our intelligence community, although to little
avail. By conducting a public inquiry into the CIA we exposed not
only its supposed blunders and malfeasance but also important
information as to how the CIA is organized, how it gathers intelli-
gence and what kinds of sources and methods it uses.
The Hughes-Ryan Amendment, which became law on Decem-
ber 30, 1974, prohibited any CIA activities abroad that are not
directly related to intelligence gathering, "unless and until the
President finds that each such operation is important to the
national security of the United States and reports, in a timely
fashion, a description and scope of such operations to the appro-
priate committees of Congress." By 1977 information about covert
intelligence activities was available to eight Congressional com-
mittees, for a total of. 200 members or roughly 40 percent of
Congress.2
This, plus the Church Committee hearings, confirmed to our
adversaries that clandestine operations would be severely curtailed
proceed with impunity in the "back alleys of the world." These
actions also shook the confidence of those friendly states which
had cooperated with us in intelligence gathering, and caused
many of them to reassess their relationship with the U.S. intelli-
gence community. They feared Congressional investigations of the
CIA would expose their own intelligence sources and methods. In
private conversations with officials of friendly intelligence agen-
cies, I have been told that the Church Committee raised doubts
about the wisdom of their cooperating with the United States in
the future. This has also adversely affected our cooperation with
countries that for political reasons take a publicly hostile attitude
toward the United States, but who privately cooperate with us on
some matters of mutual interest. They fear the publicity generated
by a Congressional investigation would expose what is essentially
a private relationship, and lead to unfavorable domestic political
consequences for them. Finally, either through leaks or publicly
released data, the Church Committee titillated the press with
daily helpings of some of our nation's most treasured secrets.
If we are to meet the foreign policy challenges facing us in the
1980s, we must restore the traditional balance between Congress
and the President in the formulation and implementation of
foreign policy. To do so, much of the legislation of the past decade
should be repealed or amended.
Many in Congress are coming to this conclusion and are working
toward-a reversal of the imbalance. The 1980 modification of the
Hughes-Ryan Amendment to require notification of covert actions
to only the two Intelligence Committees is one such step, as is the
Senate's October 22, 1981, vote to repeal the Clark Amendment:"
in the future. It sent a signal to our adversaries that they could
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Further efforts in this direction are essential if we are to have the
maximum flexibility required to respond to a fast-changing world.
In addition to reversing much of this legislation, we should also
look at new legislation which may be appropriate. There are
strong arguments in favor of creating an unspecified contingency
fund for economic and military assistance. One of the conse-
quences of the 1970s legislation was that such funds which had
previously existed were either abolished or severely curtailed.
Reestablishment of such funds would grant the President the
flexibility he needs to be able to respond quickly to help new
friends that emerge unexpectedly, or old friends who are suddenly
endangered. While disbursement of these funds should be made
with appropriate notification to Congress, the inevitable delays
involved in waiting for new Congressional authorization should
be avoided.
For example, when Zimbabwe became independent on April
18, 1980, the new government was strongly anti-Soviet, pro-West
and in need of economic assistance. On the day he took office,
President Mugabe invited the United States to be the first nation
to establish diplomatic relations with and open an embassy in
Zimbabwe. We responded with a pledge of economic assistance,
but due to the lack of funds for such contingencies, were able to
grant only $2 million. We had to wait almost ten months, until
the next appropriations cycle could be completed, to grant Zim-
babwe the amount of economic assistance it needed.
We face a similar situation in northern Africa today. In the
confusion cast over the area in the wake of the Sadat assassination,
Libyan President Qaddafi has heightened threats against the anti-
Soviet government of Sudan. The Libyan army appears to be on
an alerted posture. Were Libya to attack Sudan tomorrow, there
is very little the United States could do right away to assist
President Nimeiry.
As legislation now stands the President has certain limited
flexibility to grant military assistance to respond quickly to un-
planned situations. The Foreign Assistance Act of 1961, as
amended, permits the President, in the interests of national secu-
rity, to draw on U.S. military stocks, defense services, or military
education and training, up to $50 million in any fiscal year for
foreign use. In 1981 the Reagan Administration requested that
new contingency funds totalling $350 million be established for
emergency economic and military assistance. As of mid-November
1981 Congressional action on this request is still pending, although
it appears that both Houses are moving to reduce significantly
the size of these contingency funds.
In supporting such discretionary authority and appropriations,
and urging the repeal of the excessively restrictive legislation of
the 1970s, I am in effect proposing a return to.the situation that
prevailed in the 1950s and 1960s.
At that time the Congress did provide discretionary authority
and substantial contingency funds for the use of Presidents Tru-
man, Eisenhower, Kennedy and Johnson. Each of these Presidents
employed his authority to act quickly and decisively in ways
which, on balance, served the national interest-especially in new
and unforeseen situations emerging in what we now call the Third
World. The basic authority of the Congress to appropriate funds
for the .armed forces and foreign activities remained constant. rC0
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Indeed, the Congress from time to time expressed its views force-
fully as to the desirability of support for nations that acted in ways
prejudicial to American interests. (An early example of such
legislation was the Hickenlooper Amendment, which for many
years expressed Congress' general opposition to continue aid to
countries that nationalized private American companies without
adequate compensation.) The crucial difference is that such
expressions of Congressional sentiment almost invariably con-.
tained a saving clause that permitted the President to go ahead if
he certified to the Congress that the action was necessary for
overriding national security reasons. This is a perfectly sound and
reasonable practice, and one that avoids the immense complica-
tions and possible unconstitutionality of the legislative vetoes
introduced by the various amendments of the 1970s.
In short, what I propose above is vastly more effective than the
present situation, sounder from every constitutional standpoint,
and fully in keeping with past precedents.
V
Finally, in reconsidering the legislation of the 1970s, it is useful
to reexamine it and its causes in a more dispassionate light than
that of the period. At the time, much of this legislation was
considered a necessary response to counter the excesses of the
presidency. Since the Vietnam War had never been formally
declared by Congress, it was seen as the President's war. Water-
gate, along with the war, was considered to be the result of a
Presidency grown too authoritarian. If the war were ever to end,
and if future Vietnams were to be prevented, the President's
foreign policy authority would have to be proscribed. As Arthur
Schlesinger put it, the theory "that a foreign policy must be
trusted to the executive went down in flames in Vietnam....
Vietnam discredited executive control of foreign relations as pro-
foundly as Versailles and mandatory neutrality had discredited
congressional control. ,3
If this legislation was motivated by an "Imperial Presidency,"
whose ultimate manifestation was an undeclared war, then the
motivation is flawed. Blame for Vietnam can be laid at many
doors: a series of American Presidents, and those in the civilian
leadership who advocated gradual escalation and limited rules of
engagement. But Congress-was not blameless. The war in Viet-
nam, while undeclared by Congress in a formal sense, had de
facto Congressional support. Beginning in the mid-1960s the
Administration sent defense authorization and appropriations
bills to Congress-legislation which clearly designated certain
men and monies for the war effort. Year after year Congress
acquiesced in the Vietnam War, by authorizing and appropriating
resources for it. As former Senator.J. William Fulbright remarked,
"It was not a lack of power which prevented the Congress from
ending the war in Indochina but a lack 'of will." With waning
public support for a war which seemed to drag on forever, many
in Congress and the media looked to a single explanation-for a
scapegoat who could be held accountable for an unpopular war.
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Blame for the war in Vietnam was attributed to the usurpation of
power by the President.
In the early 1970s Congress reversed itself and belatedly at-
tempted to use its appropriation authority to end the war. While
this was certainly within its prerogative, the timing was of ques-
tionable wisdom. Our efforts to disengage from Vietnam and to
negotiate with the North Vietnamese were made more difficult
by Congressional .intervention. Congressional action made a set-
tlement all the more difficult to achieve and, ultimately, impos-
sible to enforce. The view that the Vietnam War discredited
forever Executive control of foreign policy was an emotional
reaction, driven by the passion of the moment. Because of it,
Congress embarked on a course to limit not only President Nixon's
flexibility, but also that of future Presidents. Congress prescribed
a cure for a nonexistent disease. The lasting effect was that
Congress institutionalized its foreign policy differences with the
President by legislating permanent solutions for a temporary
situation.
As Cyrus Vance said at the 1980 Harvard commencement,
"Neither we nor the world can afford an American foreign policy
which is hostage to the emotions of the moment." The authority
to conduct external relations should not vacillate between Con-
gress and the President as a result of failed or unpopular initiatives.
The whole point of a written constitution and body of judicial
opinion is to establish a consistent mechanism for apportioning
authority. Whereas the Constitution confers on the Senate the
duty of advice and consent in the making of treaties, on the
Congress the power to appropriate monies for armed forces and
to declare war, and special authority in the field of trade, it confers
on Congress no other special rights in the field of external affairs.
The cumulative effect of this legislation is that, as the United
States enters a period when the greatest flexibility is required of
an American President to deal with fast-changing situations in
the world, Congress has inhibited the President's freedom of action
and ' denied him the tools necessary for the formulation and
implementation of American foreign policy. We know that the
Soviet Union maintains clandestine operations which are well
organized, well disciplined, well financed, well trained and often
well armed, in virtually every Third World country. They are in
a position to exploit many restive political situations which they
may or may not originate. To inhibit the United States in its
ability to conduct covert operations, to provide military assistance
to pro-West governments or groups, and to respond quickly to
military crises is to concede an enormous advantage to the Soviet
Union and its proxies.
It is my sincere hope that Congress will reexamine its role in the
conduct of foreign policy and repeal or amend, as necessary, the
legislation of the 1970s. The end towards which we should work
is to do whatever is necessary to strengthen America's ability to
formulate and implement a unified, coherent and cohesive foreign
policy to face the challenges of the 1980s.
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t The Clark Amendment to the Arms Export Control Act of 1976 (Sec. 404, P.L. 94.329),
which became law on June 30, 1976, further tightened the restriction by prohibiting "assistance
of any kind ... for the purpose, or which would have the effect, of promoting or augmenting,
directly or indirectly, the capacity of any nation, group, organization, movement, or individual
to conduct military or paramilitary operations in Angola."
2 In one of the few reversals. of the 1970s legislation, in October 1980 the President signed
into law an amendment to the National Security Act (P.L. 96-450), which stipulates that he
must report covert operations to only two Congressional Committees, the House and Senate
Select Committees on Intelligence.
s Arthur M. Schlesinger, Jr., The Imperial Residency, Boston: Houghton Mifflin, 1973, pp.
282-83.
aL'L S~I~i/
John G. Tower has been a Senator from Texas since 1961. He is currently
Chairman of the Senate Armed Services Committee.
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