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would add detailed congressional processing for these agreements, a sphere heretofore left to the Chief Executive, would, to that extent, alter the respective constitutional spheres ordained by the founders of the Republic. It seems clear that such congressional processing could defeat the purpose of the original scheme of checks and balances designed by the framers of the Constitution in assigning this limited but important function to the Executive in an area where speed and flexibility are often of great importance to the Nation.
I have therefore brought this to your attention for the bearing it has upon the resolution now pending before your subcommittee.
Again expressing my appreciation for the consideration very kindly extended by both you and your subcommittee, I am Very sincerely,
Roger L. PUTNAM, Administrator.
DEPARTMENT OF DEFENSE,
Washington 25, D. C., June 11, 1952.
United States Senate. DEAR SENATOR MCCARRAN : Thank you for your letter of June 3. I can understand the reluctance of your committee to drag out the hearings on Senate Joint Resolution 130, and submit this letter as a statement by the Department of Defense in opposition to the constitutional amendments proposed by that resolution.
I know the committee has received considerable testimony on the broad aspects of this resolution as it relates to the general conduct of our foreign policy and the distribution of functions and powers within our system of government. I understand also that the committee has received or will receive the views of other departments of the Government on this resolution. Accordingly, this letter will be directed largely to those aspects of the resolution which are of particular interest to the Department of Defense, and it will discuss the effect of the resolution upon those activities of our Government for which the Department of Defense is primarily responsible. Military importance of international agreements
Senate Joint Resolution 130 proposes an amendment to the Constitution which would modify our fundamental and historic methods of entering into and implementing treaties and executive agreements. This proposed modification is of serious concern to the Department of Defense, for any cooperative military undertaking or arrangement between the United States and other nations designed for the use of our combined strengths in common defense calls for many understandings between the United States and the other countries concerned. With the development of the methods and techniques of modern war, it has become less and less possible to rely on the old-fashioned “arm's length" military alliance, under which nations acted as completely independent units. More than ever, modern war is a team proposition, and, even more important, steps to prevent war are a team proposition. We must have teamwork between nations in the economic field and the fields of production and supply to make the best military use of the available raw materials and our combined productive capacity and to deter the development of the war potential of a possible enemy; we must have teamwork in the use of ivailable land areas to insure that natural defenses are exploited and that the appropriate bases are available from which an enemy can be hit if he should decide to undertake hostilities; we must have teamwork in the field of military strategy in order to make the most effective disposition of the available military forces of all participating nations for deterrent and defensive purposes.
The understandings which are essential to the defense of the United States deal with a great variety of subjects and are made in a variety of ways. First, of course, they include such fundamental agreements as the North Atlantic Treaty, the Japanese Peace Treaty, and the German contractuals-broad and important agreements which are the foundation for more detailed defense arrangements. At the next level there are a host of agreements and understandings, some of which are in the form of treaties, but most of which are in the form of executive agreements or arrangements. The subjects with which they deal include the following:
1. The right to construct and utilize bases in foreign countries;
occupying forces, or defense forces ;
and SHAPE are examples) ; 6. Armistices and surrenders ; 7. The treatment of prisoners of war; 8. The applicability of local tax laws to construction and procurement un
dertaken by the forces of one country visiting in the territory of
another country; 9. The effect of customs laws and procedures upon equipment and materials
imported by a visiting force; 10. The furnishing of military assistance to foreign countries pursuant to
programs such as the Mutual Security Program; 11. Local procurement by a visiting force and other programs of foreign
procurement; 12. Allocation and purchase of strategic materials; 13. The juridical status of visiting forces and of international commands; 14. The responsibility for claims arising out of the activities of visiting
forces; 15. The applicability of local tax laws to members of visiting forces; 16. The detail of military missions to assist foreign governments; 17. The right of the aircraft of one nation to fly over the territory of another; 18. Embargoes ; 19. Patents relating to manufacture of war matériel ; 20. Electronic navigation systems and communication systems; 21. Mapping and map exchange; 22. Dock sites and depots ; 23. Disposition of war dead;
24. Training and instruction. Before considering the harmful effects which Senate Joint Resolution 130 would have on our ability to conclude agreements which strengthen and consolidate our defense, and before demonstrating wherein the resolution would weaken our world position, consideration should be given-even at the risk of repetitionto the necessity for the resolution. A constitutional amendment is not necessary
As I understand it, the resolution has two purposes. One is to restate in specific language what is already the constitutional law of the United States. The other is to make certain changes in the process whereby the United States enters into international agreements-changes which would place definite limitations on the authority to enter into those agreements, which would complicate the process whereby they are entered into, and which would shift, to some extent, the location of that authority within the Federal Government itself.
The scope and location of the treaty power was a matter given long and careful consideration by the framers of the Constitution. They wanted to balance the need for flexibility in the international sphere with the requirement that there be an appropriate measure of control over the exercise of the power to conduct foreign affairs. They aimed at establishing a treaty power broad enough to meet the necessities of international intercourse, yet subject to restrictions which, on the one hand, would prevent unwise or corrupt treaties and, on the other, would not be so cumbersome and unwieldy as to interfere materially with the treaty-making process. Many plans were considered, including one which would have required that no treaty should be binding on the United States “which is not ratified by a law." The effect of this plan would have been to give the House of Representatives a share of the power to enter into treaties. It was overwhelmingly rejected.
The plan adopted by the Constitutional Convention, under which treaties are to be entered into by the President, by and with the advice and consent of twothirds of the Senators present, and under which treaties, when entered into, become the law of the land, represents the considered judgment of individuals who, under the Articles of Confederation, had seen first hand the difficulties which
arise when complete and effective control of foreign affairs is not vested in the Central Government. Today, it is even clearer that effective control of foreign affairs is essential to national survival.
This plan has been tested during the history of our country and has been demonstrated to meet the objectives of its authors. It would be a mistake to attempt to tinker with it at this time in order to meet objections which are fears rather than demonstrated realities. A change in our treaty-making process, in the fundamental and tested machinery of our international relations, should not be adopted when there is no clear evidence that the existing safeguards are in. sufficient to prevent the adoption of unwise or improper treaties. Furthermore, protection against the improper exercise of what is otherwise an essential power should not be achieved by the diminution of that power, or by splitting up the responsibility for its exercise to such an extent as to obstruct its use.
How better can a proper exercise of the treaty power be guaranteed than by entrusting it to the President and the Senate? If a treaty is bad on its face, one-third of the Senators present plus one additional Senator can and will prevent its ratification. If a treaty turns out to be bad for reasons which do not become apparent until after ratification, its effect as law of the land can be nullified by an act of Congress. Congress has a similar power to nullify executive agreements. Finally, of course, we must keep in mind that almost no agreement can be carried out today without the exercise by Congress of its general powers-in fact, the great majority of executive agreements to which the United States is a party are entered into pursuant to some act of Congress. Professor Corwin has put it this way:
"The point is that the sort of foreign policy which present-day conditions require can never be kept going by attributing to the President, as in the past, the simple power to order the Navy around without consulting Congress. Far otherwise; Congress must be constantly asked to exercise powers which no President has ever ventured to exercise on any scale the power to tax, to pledge the credit of the United States, to raise armies, to regulate commerce, and so forth and so forth. And if Congress cannot be persuaded to back presidential policy by bringing these powers to its support, then-the idea of a Presidential coup d'etat being dismissed the policy fails, and that is all there is to it" (Corwin, the President; Office and Powers, third ed., 1948, p. 271). Both the changes and ambiguities of the proposed amendment are dangerous
For these reasons, it seems clear that the proposed changes are not necessary. Furthermore, it is our view that they are not merely unnecessary—they are positively unwise. Where they bring about changes, they will severely impede our efforts to consolidate the military position of the United States in the world. Even where they purport to restate existing constitutional doctrines, they will cause serious difficulty. As you know purported declarations of existing rules often result in unforeseen and undesirable consequences. In considering the sections of this proposed amendment, we must bear in mind that if adopted, they will be interpreted later on by people who will not be as fully aware of their purpose as we are, and they will be interpreted in situations which we have not contemplated. The danger of ambiguities is obvious, and it is increased by the presumption that the complex machinery for adopting an amendment to the Constitution would not be utilized merely to maintain a status quo. People are not expected to go to all that trouble for a nullity.
Even though the many ambiguities inherent in these provisions are later resolved in the manner intended, there will, nevertheless, be a long period of uncertainty during which the necessary decisions and precedents will be evolving. The very existence of this uncertainty will be a handicap in the conduct of our foreign affairs.
I will take up the first four sections of the proposed amendment in order and indicate how the changes intended by each of them or the ambiguities inherent in each of them would seriously embarrass the Department of Defense. Neither I nor any of my advisers think we are wise enough to give you more than a partial enumeration of possible difficulties. Ability to obtain agreements protecting rights of our military personnel
Section 1 of Senate Joint Resolution 130 provides : “No treaty or executive agreement shall be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof."
This section contains almost as many ambiguities as there are situations to which it would apply. There follow two examples which relate particularly to the Department of Defense. The first involves the question which has already been raised with the committee, of whether the limitation in this section relates to the subject matter of those constitutional rights even in situations to which the constitutional guaranties would not actually apply. Does this forbid treaties protecting the rights of United States citizens outside of the United States? Although I do not believe it is so intended, this section could be read to prohibit the United States from entering into the general conventions relating to the treatment of prisoners of war.
We are presently a party to the Geneva Convention of 1929 dealing with this subject. Such conventions are steps toward the establishment of humanitarian principles in the treatment of prisoners. From the military point of view, agreements of this character are important for the maintenance of troop morale, and from a more general point of view, they are desirable as a means of creating respect for principles of justice, humanity, and international law. To prohibit the United States from entering into agreements of this sort would retard the recognition of those principles and damage our position in the eyes of the world.
The second example relates to our ability to obtain agreements which protect and benefit United States military personnel serving in foreign countries. Many of these agreements involve reciprocity. Obviously, it will be difficult to obtain benefits and protection for personnel of our forces overseas when we are not prepared to grant similar benefits and protection to the small number of troops of other nations who are on duty in the United States. The example I have in mind involves immunity from judgment in civil suits brought against members of a visiting force for acts which they have done in the course of official duty. We have negotiated agreements which grant such immunity and which place upon governments the liability for claims arising out of such acts. To obtain this immunity for our own forces, however, we must be prepared to grant it to visiting forces in the United States. Section 1 might be construed to prevent us from doing our part on the ground that such immunity would affect the rights of United States citizens. At any rate, the application of the section would not be known until there had been a court decision on the question. The mere existence of this ambiguity would make the protection of our troops overseas more difficult. Possible effect on international commands
Section 2 of Senate Joint Resolution 130 provides: "No treaty or executive agreement shall vest in any international organization or in any foreign power any of the legislative, executive, or judicial powers vested by this Constitution in the Congress, the President, and in the courts of the United States, respectively."
The meaning of this section is very difficult to comprehend. It has many ambiguities and the possible scope of its application is tremendous. For this reason it is difficult to say just how it would affect treaties and agreements relating to the defense of the United States. One possible application, which I cannot believe is intended, has been mentioned to you already, but it should be mentioned again. This section might be construed to prevent United States participation in the establishment of international commands, on the theory that such participation would result in a vesting of authority which derives from the executve power of the President as the Commander in Chief of our Armed Forces. Everybody is aware of the importance of such commands and of the tremendous handicap it would place upon our ability to wage war effectively if we were prohibited from joining such commands.
Our experience in World War I showed that lack of a coordinated command could be virtually (lisastrous. The Allies never enjoyed a really unified direction of the war; they moved slowly toward it as the need became more obvious, but it required the almost successful German offensive of March 1918 to bring agreement that Marshal Foch should have even limited control of the Allied armies. The result of this uncoordinated effort was that the Allies were held at bay for 4 years and, indeed, almost defeated by Germany and the other Central Powers who, though possessed of inferior manpower and resources, enjoyed the tremendous advantage of a single military command.
We determined to avoid these costly mistakes in World War II. Early in the war the Combined (American and British) Chiefs of Staff were set up in Washington. They appointed a Supreme Allied Commander in each theater of operations who, with a staff from the Allied nations, carried out their orders. A description of the efficient operation of this system of joint command in
the largest undertaking of World War II, the invasion of France, need not be repeated. The problems of transporting, directing, supplying, and maintaining huge armies of diverse nationalities stagger the imagination. Suffice it to say that they were successfully overcome with what I believe was the minimum cost in men and matériel, and the final defeat of Germany accomplished. The Department of Defense feels that the experience with joint military commands in World War II has been too successful to warrant its discard, It is on this premise that it has acted with the North Atlantic Treaty nations in setting up the joint headquarters at SHAPE in the current struggle agains communism. Complication of the treaty-making process
Section 3 of Senate Joint Resolution 130 provides : "No treaty or executive agreement shall alter or abridge the laws of the United States or the Constitution or laws of the several States unless, and then only to the extent that, Congress shall so provide by Act or joint resolution.”
This section is somewhat similar to the proposal I have already mentioned which was so decisively defeated in the Constitutional Convention. It provided that no treaty should be binding on the United States “which is not ratified by law," thus bringing the House of Representatives into the treaty-making process. Concerning the objection to participation by the House, Hamilton wrote in the Federalist (No. 75):
“The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project."
Section 3 is open to a second objection. It compounds "the very complication of the business," for it not only adds another body, but another step, to the process of entering into treaties and making them the law of the land. Under the pro. posal rejected by the Constitutional Convention, this could be done by the House and Senate enacting a law. Under section 3, however, first there must be consent by two-thirds of the Senators present and then the House and Senate must enact the law. The difficulties of such a cumbersome procedure are manifest. It would materially interfere with the treaty-making process, and it would also increase the workload of Congress. This increase would be accentuated by the increase in the volume of treaties which would result from the adoption of section 4 of Senate Joint Resolution 130. The proposal of the American Bar Association
Although I do not believe it is intended, some people have read into section 3 an effect similar to that which is clearly spelled out in the proposed amendment to the Constitution sponsored by the American Bar Association, with which you are familiar and which provides: “A provision of a treaty which conflicts with any provisions of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the U'nited States only through legislation by ('ongress which it could enact under its delegated powers in the absence of such treaty."
This would take away from the Federal Government the power to deal by treaty with matters which as a matter of domestic law are subject only to the jurisdiction of the States. Inasmuch as the States are prohibited from entering into international compacts, it would leave a vacuum. There would be numerous subjects with respect to which no agreement could be made between this country and foreign governments. Under this proposal or under section 3, if similarly interpreted, the United States could not have entered into what was an essential part of the Jay treaty of 1794. That treaty, which many believe averted a war with Great Britain, provided among other things, that British subjects holding lands in the United States were to continue to hold them according to the nature of their respective titles. Since control over private ownership of land is not one of the delegated powers of Congress, implementation of this provision of the treaty would have been unconstitutional.