ing as expeditiously as possible with other countries for the continued reduction of their tariff barriers and in particular for the elimination of their quantitative restrictions on imports, one of the main tasks now before us. Most other countries have authority vested in the executive branch of the government to carry on such negotiations. It is highly doubtful that the United States, which ranks so high in importance in the trade of many countries, would be able to obtain any considerable benefits in trade negotiations if it were unduly restricted in its ability to give assurances as to its own commitments in exchange for substantial concessions by the other parties. Indeed, the whole trade agreement procedure would break down without adequate authority on the part of Government representatives to make specific commitments within such limits as are imposed by basic legislation. An additional field of effort where the ability of this Department to enter into executive agreements has been of cardinal importance is the field of technical assistance in agriculture. As you will recall, this Department began more than 10 years ago at the urgence of a number of Latin-American governments to initiate agreements providing for basic work looking toward the development of agricultural research and extension in those countries. In these original agreements the primary concern of this Department and this Government was directed toward the increased production of strategic and complementary crops which would contribute to our war effort and which over the long run would contribute to the strengthening of the American economy. The first and perhaps the most significant of these agreements was drawn between the United States Secretary of Agriculture and the Minister of Finance of Peru. Because of the nature of the work involved, this executive agreement was drawn for a period of 10 years subject to termination or extension by the consent of both parties. Obviously, the financial contribution of the United States was subject to annual action by the Appropriations Committee and the Congress. Again, the point I wish to make is that this agreement and the many similar agreements made with other Latin-American countries would not have been possible if Senate Joint Resolution 130 had been in effect at that time. Moreover, the automatic termination clause of section 4 would surely have undermined what confidence the Latin-American authorities might have had in our ability to live up to our commitments under the agreements on a long-term basis. This Department takes pardonable pride in the fact that the joint experience which we have developed with our Latin-American neighbors under these agreements since 1942 has provided the firm foundation upon which the point 4 program has more recently been extended on a world-wide basis. Primary responsibility for the technical assistance program (point 4) is not vested in this Department; however, under a directive of the President this Department is deeply involved and most vitally concerned with the planning, direction, and execution of its agricultural phases. It would be impossible to negotiate technical assistance agreements with foreign governments by legislative process. The urgency of achieving a substantial beginning toward improving the material welfare of agricultural people in the underdeveloped areas of the world, in order to check the inroads of aggressive communism, demands the highest degree of flexibility in decision and action. It is our judgment that the impediments to such flexibility, and the cumbersomeness of procedure inherent in Senate Joint Resolution 130 would render completely ineffective any attempts to operate under the technical assistance program. We feel that this Department has a creditable record in its use of executive agreements as an instrument to safeguard and advance the interests of American agriculture and that the existing framework of the law is for this purpose. I recommend that Senate Joint Resolution 130 not be enacted. Sincerely yours, CHARLES F. BRANNAN, Secretary. ECONOMIC STABILIZATION AGENCY, Hon. PAT MCCARRAN, Chairman, Judiciary Committee. OFFICE OF THE ADMINISTRATOR, Washington 25, D. C., June 13, 1952. United States Senate, Washington 25, D. C. DEAR SENATOR MCCARRAN I appreciate the opportunity which you have afforded me to express my views and those of this Agency in reference to Senate Joint Resolution 130, which is currently pending before your committee. In line with your objective of avoiding duplication of testimony, our Agency's analysis of this legislation has been confined, insofar as possible, to the effect of the presently constituted power to make executive agreements upon the stabilization program. As you know, the responsibilities of this Agency are to carry out the objectives of the Defense Production Act in regard to assuring stabilization in our economy during this emergency. Specifically, the Congress has recognized the necessity of preventing inflation, of assuring the value of the national currency, of assuring that defense appropriations are not dissipated by excessive costs and prices, of stabilizing the cost of living for workers and other consumers, and of stabilizing costs of production for farmers and businessmen. In achieving these objectives, it is most desirable to obtain foreign raw materials, which we either cannot produce or cannot produce in sufficient volume to satisfy our urgent needs; and to obtain these materials at a price most advantageous to us. Executive agreements have been successfully used to this end. During the last year and a half a number of these agreements have had the dual effect of both obtaining critical foreign materials and also obtaining them at a price lower than would otherwise have prevailed. Specifically, I should like to draw your attention to an agreement signed in January of this year with the United Kingdom (known as the Agreement Between the Governments of the United States and of the United Kingdom on Mutual Assistance in Raw Materials) for the purpose of exchanging between our two countries materials which we each had in greater supply for materials which we each sorely needed. This mutually advantageous trade of United States steel and aluminum for United Kingdom tin at reasonable prices was made in an expeditious manner, which not only protected this country's best interests, but enhanced our security, supply, and stabilization positions. Similarly, in 1951, we signed an executive agreement with Chile which assured us of the importation of badly needed copper at a price of 27% cents, which was well under the going price of copper in the international markets. In the world markets the price of copper rose to as high as 45 and 50 cents a pound. In this manner the United States was not only assured of a supply of copper, but was able to procure copper at a lower price than would have been possible otherwise, and thereby limited the costs to American manufacturers, limited the costs to our military program, and limited the rise in price of consumer products. Hence this agreement was most advantageous to maintaining the stability of our economy. A limitation of the Executive's ability to make such agreements as these would, in my opinion, be detrimental to the effectiveness of one of the tools which this Nation has for withstanding inflationary pressures. Introduction of legislative processes into this field, and the degree thereof imposed by Senate Joint Resolution 130, would thus appear to represent abandonment of an important constitutional principle which has served the Nation well through the course of the Republic in the last 176 years. The extent to which the first sentence of section 4, of Senate Joint Resolution 130, changes constitutional status quo in this respect, if at all, is not clear to us inasmuch as we have always understood the line of demarcation to be legally ascertainable. The sentence reads: "Executive agreements shall not be made in lieu of treaties." Also, it appears to us that the second sentence of section 4 of Senate Joint Resolution 130 imposes a rigorous time restriction. This cannot help but hamper the certainty of commitment and also the latitude of bargaining freedom, both of which are so necessary in negotiating the most favorable terms for this Nation. The sentence reads: "Executive agreements shall, if not sooner terminated, expire automatically one year after the end of the term of office for which the President making the agreement shall have been elected, but the Congress may, at the request of any President, extend for the duration of the term of such President the life of any such agreement made or extended during the next preceding Presidential term." We will not go into the detail of the foregoing as it has, no doubt, been fully developed for you in other testimony and exhibits. Rather, it is our purpose to supplement this material from other branches of the executive department with illustrations of the beneficial effects on stabilization derived from several recent executive agreements. The present flexibility allowed by nonstatutory executive agreements provides this Government with a useful and immediate advantage in the international economic field. Any departure from the present constitutional structure which 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, Hon. PAT MCCARRAN, OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE, Chairman, Committee on the Judiciary, 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 available 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; 2. The administration of areas occupied as the result of hostilities; 3. Lines of communication across foreign territories for the support of bases, occupying forces, or defense forces; 4. Testing areas and proving grounds for new weapons; 5. The organization of international commands in war or peace (SHAEF 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 undertaken 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 repetition— to 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 insufficient 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 |