TREATIES AND EXECUTIVE AGREEMENTS to the Department of Defense. The first involves the question which has already 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 Section 1 might be construed grant it to visiting forces in the United States. 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." For this The meaning of this section is very difficult to comprehend. It has many ambiguities and the possible scope of its application is tremendous. 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 The Allies never enjoyed a really unified direction could be virtually disastrous. 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, to 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 proposal 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 United States only through legislation by Congress 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. The more immediate objection of the Department of Defense to such a limitation of the treaty-making power relates primarily to the negotiation of agreements giving rights and benefits to our troops in foreign countries. As previously indicated, reciprocity is often an important factor in the success of the negotiations. For example, under the treaty relating to the status of NATO forces, which has been signed and awaits ratification, the various NATO countries will not require members of United States forces who have United States drivers licenses to take a driving test. We have agreed to a similar recognition of the drivers' licenses of the NATO forces visiting in this country. If treaties could be implemented as internal law only to the extent of the delegated powers of Congress, we might not be able to live up to our part of the bargain. Drivers' permits are a matter of State law. So are State taxes. Under this same treaty members of a visiting force are generally exempt from income taxes levied in the country where they are visiting. Certainly such an exemption would be difficult to obtain for our troops if we were not able to promise visiting NATO forces exemption from our State income taxes. Effect on existing and future base agreements Section 4 of Senate Joint Resolution 130 provides : "Executive agreement shall not be made in lieu of treaties. "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. "The President shall publish all executive agreements except that those which in his judgment require secrecy shall be submitted to appropriate committees of the Congress in lieu of publication." This section, more than any other, could cause extensive harm to our defense program. Consider those executive agreements which give the United States base rights around the world. Everyone knows how essential these are to our security. They have been obtained through long and difficult negotiations, and in a few cases for a substantial consideration. The following are examples of these agreements: (1) Leased Naval and Air Bases Agreement, U. S.-U. K., signed March 27, 1941 (EAS 235) (2) Military Bases in the Philippines, U. S.-Philippines, signed March 14, 1947 (TIAS 1775) (3) Bahamas Long Range Proving Ground, U. S.-U. K., signed July 21, 1950 (TIAS 2099) (4) Defense of Greenland, U. S.-Denmark, signed April 27, 1951 (TIAS 2292) (5) Air Base at Dhahran, U. S.-Saudi-Arabia, signed June 18, 1951 (TIAS 2290) (6) Defense of Iceland pursuant to North Atlantic Treaty, U. S.-Iceland, signed May 5, 1951 (TIAS 2266) (7) Defense of Iceland pursuant to North Atlantic Treaty-Status of U. S. Personnel and Property, U. S.-Iceland, signed May 8, 1951 (TIAS 2295) The administrative agreement recently concluded with the Japanese Government is another example of an agreement relating to the use by the United States of facilities and installations in foreign territory. It is quite comprehensive and detailed, since it is designed to deal with all the technical problems involved in maintaining substantial United States forces in Japan. Under the agreement, the Japanese will make facilities and areas available to us, without cost, when it is agreed by the two Governments that such areas are needed for carrying out the defense mission of the United States forces. The agreement also provides that the United States may construct any necessary military structures and facilities, and the construction of these items, as well as procurement in Japan of other items required for the support of our forces, will be relieved of all Japanese taxes. The agreement also provides for certain standard operating rights which are essential to our military operations in foreign countries, such as rights of access, the right to use public utilities and services, to receive meteorological and climatological information from the Japanese Government, and so on. I think it is important to recognize that an agreement of this sort contemplates fluidity in the deployment of forces, and, for that reason, the particular facilities and areas to be occupied by United States forces are left to future considera 22984 -52-24 tion and agreement by the authorities of the two Governments in Japan. This agreement will be effective throughout the period of the security treaty. The effect of section 4 on such existing agreements is not perfectly clear, but one possible interpretation is that they would fail 1 year following the end of the term of the President in office at the time the amendment is adopted. To be sure, Congress might extend them for the term of the following Presidentbut would these extensions be binding on the other parties to the agreements? Certainly they could argue that the assertion by the United States of a right to terminate would invest them with a reciprocal right. The mere prospect of renegotiating all our base-rights agreements is a staggering one. We would have nothing to win and a tremendous amount to lose. The cost would be great, for in those cases involving past consideration, new consideration might be required. Furthermore, the bargaining position may have changed. On top of this, our base construction program would be brought to a halt, at this most critical time, until completion of the renegotiations. The automatic expiration clause of section 4 would have a disastrous effect with respect to base agreements to be negotiated or renegotiated in the future. It is obviously undesirable to place a short and arbitrary limit upon the period for which such rights are to be obtained. For one thing, the useful life of adequate installations would be several times longer than the period provided in the section, even where an agreement was negotiated at the beginning of the President's term. Of course, it would be possible to proceed with construction in the hope that the agreement could be renewed, but this would not be economical. In this connection, Senate Joint Resolution 122 is equally objectionable. It contains a similar limitation upon the effective period of an executive agreement, and paragraph 2 of section 1 would seem to make executive agreements of this nature even more transitory, for it might make the obligations of the United States under any such agreement completely voidable. It would seem reasonable that any country entering into an agreement with the United States would wish to have its obligations similarly voidable. If such had been the arrangement in the leased bases agreement of 1941, for example, the United Kingdom could, today, without any violation of her international obligations, take back from the United States by a simple act of Parliament base rights, which we presently have under a 99-year lease, in Bermuda, the Bahamas, Jamaica, St. Lucia, Antigua, Trinidad, and British Guiana. This problem is not resolved by the use of treaties instead of executive agreements. One very important reason is the fact that certain bases can be obtained only by executive agreement-for political or other reasons the grantor nations refuse to invoke the treaty process. Another important consideration is the fact that the treaty method will often take too much time. This will be the case where a sudden and urgent need for a base arises which calls for instant action. In such a situation we will not be able to afford the delays involved in ratification and implementation, whether or not Congress happens to be in session. Finally, it should be emphasized that practically all agreements in which the Department of Defense is involved relate to operational situations of a changing character. Consequently, the agreements must be under constant surveillance so that modifications may be made where necessary to meet current and anticipated needs. The delay and rigidity of the treaty process make it unsuitable for dealing with these problems. There is another provision of section 4 of Senate Joint Resolution 130 which might be interpreted to compel the use of the treaty process for obtaining base rights, even in those situations where the process is impractical. It is the first sentence of the section, which says that executive agreements shall not be made in lieu of treaties. This certainly implies that certain types of agreements may be made only in the form of treaties, but it does not indicate what those types are. Could it mean that once a particular matter has been handled by a treaty with one country, then all other agreements on the same subject matter with other countries would also have to be treaties? I am sure that this is not intended, but it is an ambiguity which would not be resolved for many years and which would throw doubt upon the validity of many agreements. A final objection to section 4 of Senate Joint Resolution 130 is also applicable to section 3. If those sections were adopted, the Congress would be overwhelmed with a mass of business, much of it administrative in character, which it has neither the time, the organization, nor the propensity to deal with. This increased workload would result from the extra step added to the treaty process by section 3; it would result from the fact that section 4 requires the use of treaties in many situations where executive agreements would be perfectly proper and appropriate; and, finally it would result from the quadrennial review required by section 4 of all our many executive agreements. This added burden would be a serious impediment to the legislative process and to the proper functioning of our Government. For the foregoing reasons, the Department of Defense recommends that the resolution be disapproved. Sincerely yours, Hon. PAT MCCARRAN, CHARLES A. COOLIDGE. TREASURY DEPARTMENT, THE SECRETARY OF THE TREASURY, Chairman, Committee on the Judiciary, United States Senate, Washington, D. C. MY DEAR MR. CHAIRMAN: The attention of this Department has been directed to Senate Joint Resolution 130, a proposal for a constitutional amendment dealing with treaties and executive agreements, which is under consideration in the Committee on the Judiciary. This Department exercises a number of important functions involving treaties and executive agreements with foreign countries and is, therefore, concerned with the proposed amendment. In the judgment of this Department, the provisions which would be added to the Constitution by Senate Joint Resolution 130 would seriously impair the effective conduct of the responsibilities of this Department involving relations with foreign countries, and the Department, therefore, urges that your committee not approve the proposed constitutional amendment. The probable effects of the proposed amendment on the functions of the Treasury Department relating to international financial affairs, double taxation treaties, the international control of narcotics, the functions of the Coast Guard, and others administered in this Department will be analyzed in the section-bysection discussion of the proposed amendment which appears below. In general, it may be said that Senate Joint Resolution 130 appears to be based upon the assumption that the Executive has misused his powers to enter into treaties and executive agreements to the point that permanent and detailed prohibitions and regulations must be written into the Constitution. There is no basis for such a conclusion. Two world wars have taught us that we cannot stand aloof from developments throughout the world, because we become inevitably involved. We are now committed, with the general concurrence of our people, to a program of wide international cooperation in an effort to anticipate the causes of international difficulties and prevent them from arising. Only this path seems to offer any hope of avoiding a repetition of the disastrous world wars we have had. Ample safeguards already exist in our constitutional system by virtue of which international undertakings which may have a regulatory effect on citizens of the United States have been submitted to the Senate for ratification as treaties have been taken under prior congressional authorization or have been submitted to the Congress for approval. To prescribe a long series of new requirements, some of which might be construed to make the United States wholly impotent in certain fields of its international relations, others which would set up new and elaborate legislative procedures, still others which would transform the President from a responsible agent of the Government in the conduct of its foreign affairs to a personal executive whose undertakings future administrations may freely disregard, would have the effect of crippling the very aspect of our Government which is of the most vital significance today. The substantive sections of the proposed amendment are each set forth, and then analyzed in the paragraphs which follow, with particular reference to the responsibilities of the Treasury Department. One result would be common to all these provisions. They would all generate a flood of new constitutional litigation which would, for many years, make it impossible for the President to conduct our foreign relations except under the constant threat of a court construction different from his own. The essential ambiguity of the proposed amendment would make this result inevitable. "SECTION 1. No treaty or executive agreement shail be made respecting the rights of citizens of the United States protected by this Constitution, or abridging or prohibiting the free exercise thereof." |