of bilateral and multilateral economic assistance, the exception is for projects that directly benefit poor people. By abusing these exceptions, a determined Executive may still attempt to evade the general obligations imposed by the human rights laws.

Only

HOW can such evasion be deterred? congressional oversight of the Executive's actions.

by assiduous

Such oversight

should certainly include hearings into questionable decisions which appear to violate the law.

But Congress may also have to go further. In particular, Congress should be prepared to enact country specific legislation, prohibiting the furnishing of security and economic aid to named governments. (In the past, Congress has by such enactments denied U.S. assistance to Argentina, Chile, Guatemala, Paraguay, Uganda, and Vietnam, to take some examples.) This repeated willingness to legislate on specific countries has a significant impact on Executive Branch behavior. It amounts to a finding by Congress that the Executive has failed to obey the law and also places the Executive on notice: unless it alters its behavior, Congress may act again.

Thank you again for the opportunity to be heard. I would be happy to answer any questions.

ADDENDUM

Listed below are other statutes that should be amended by striking the word "consistent" from the phrase, "consistent pattern of gross violations of internationally recognized human rights."

1) Section 112(a) of the Agricultural Trade Development and Assistance Act of 1954.

3) Section 721 (b) (4) of the International Security Development Cooperation

Act

of

1981.

Mr. YATRON. Thank you very much, Mr. Cohen, for your statement.

Professor Ferguson, we had a series of questions but I believe you answered most of them in your testimony. I have one. Do you believe the administration has failed to faithfully administer the human rights laws as they are presently written?

Mr. FERGUSON. Yes, I do. This administration certainly has, and I think it is clear that the nonfaithful execution of the law is because of an ideological theory which one might attribute to our Ambassador at the United Nations, of a profound distinction between a totalitarian government and an authoritarian government, even though the violation of human rights may be the same in both of them.

Her justification for the theory is that certain governments, totalitarian in nature, are not reversible, their policy is not reversible, but in an authoritarian regime, the policy might be reversible, and that becomes the basis for the distinction.

I think there is dissatisfaction with the administration in El Salvador, and there is dissatisfaction with Chile where a little over a year ago, disappearances had stopped although other massive violations of human rights were continuing. The administration said that Chile is OK, and they recommended a certification.

I do think that Mr. Abrams did indicate that sometimes it is what they don't do that is the most effective thing about the statute. They have not submitted a report on Chile yet as far as I know, and it may be that the fear of the oversight of Congress is the reason why we have not seen a Chile report such as we have seen for El Salvador.

Mr. YATRON. Professor Cohen, in an article in the American Journal of International Law entitled, "Conditioning U.S. Security Assistance on Human Rights Practices," you state that during the Carter administration, the element of consistent pattern was held to mean that abuses had to be significant in number and recurrent, and yet, even when abuses were significant and recurrent, the pattern was occasionally held not to be consistent if steps were taken to stop some abuses. After a few positive steps, the pattern of abuse was held not to be consistent, even if widespread abuses continued. What difference if any, do you see between the manner in which the Carter administration implemented the law and the manner in which the current administration is implementing the law?

Mr. COHEN. I believe that the interpretation, Mr. Chairman, of the Carter administration was about the same as the current interpretation of the Reagan administration. I think the idea that a consistent pattern would be broken, or could be altered by a few positive steps, has been held in common by both.

I think, however, what I would call misinterpretation was used relatively less often by the Carter administration than it has been by the Reagan administration. It was, for example, not used by the Carter administration to resume security assistance or economic assistance to Guatemala, Uruguay, Paraguay, and Chile.

I think both administrations have claimed at various times the same interpretation of the language, but it has been used more by this administration.

Mr. YATRON. How many countries did the previous administration terminate aid to as result of the requirements of section 502B? Mr. COHEN. I don't recall the exact figure. I would be able to get it for the subcommittee. It was on the order of eight or nine. I believe that was the number I used in the article.

Mr. YATRON. You also stated in the article,

In some instances, the Carter administration adopted a highly strained reading of the statute which although not contrary to its literal terms, produced a result contrary to congressional intent. In other cases, the language was simply disregarded so that the decision violated even the letter of the law.

That is a pretty harsh statement to make.

In what cases did the Carter administration actually violate the law?

Mr. COHEN. There are two specific cases, as I recall. The first involved Argentina. Until the mandatory country-specific cutoff legislated by Congress went into effect on October 1, 1978, the administration approved about $120 million in arms shipment for Argentina. In that period of time there were only on the order of 500 disappearing a month. So the approval of arms sales in the months preceding October 1, 1978, to Argentina was in my view, a violation of the law. It was rationalized as involving spare parts and support equipment as opposed to actual weapons.

The other decision that was contrary to the law is one that was actually reversed by Congress. In fiscal year 1979 the decision was made to provide $500,000 in training for Guatemala. That proposal was deleted by the House Foreign Affairs Committee. The proposal was also in violation of the statute.

Mr. LEACH. I must say that yours is a quote that I have often used. Your reference to the Carter administration indicating that it violated from time to time the spirit of the law, or even the law itself, doesn't make this administration under any less obligation to implement the statute.

When you say that the administration violates the law, which is its constitutional duty to uphold, the question then is, what do you do about it, and what are the ramifications? If someone says that the President of the United States violates the law, one of the questions which follows, that is, is that an impeachable offense? In your judgment, should James Earl Carter have been impeached as President of the United States?

Mr. COHEN. Not for this particular offense or any other that I can think of. I think in order to be impeached, the offense has to be extraordinary.

Mr. LEACH. I don't want to imply that I believe it either. I think it is interesting that we view some laws as more important than other laws.

It is rather extraordinary when we look at our traditions and recognize that the principle of human rights is really the essence of the Declaration of Independence of the United States, and yet we don't consider it of extraordinary concern in the execution of the highest office in the land. It's an interesting perspective from which to view violations of the law, when the major principle that underlies our constitutional system is not given significant weight.

Certainly most reasonable Americans would not think that an impeachable offense has been committed.

Professor Ferguson, would you have considered those two of fenses impeachable?

Mr. FERGUSON. In those two instances, I would not consider them impeachable. I told one of the former Presidents, President Kennedy, that if he spent money in Mississippi in 1963 on the Moon engine project, that that was an impeachable offense. This was a huge project which ended up in Mississippi to build the engines for the Apollo program.

There was discrimination in the facility itself. There was discrimination in the Jackson Airport, which was supported by Federal money. I thought that for the President under the clause of taking care that the laws were faithfully executed, that it was unconstitutional for him to direct the expenditure of Federal funds where the expenditure had the effect of supporting racial discrimination.

I was then General Counsel of his own Commission on Civil Rights. I said I thought his failure to act was an impeachable offense. There was a great deal of anger on the part of his brother, Robert, at myself personally. The Commission on Civil Rights issued a report which said that. There were tremendous headlines in Washington: Money is to be cut off in Mississippi. There was a great deal of furor a few blocks from here.

I went home that day and told my wife we were going back to Rutgers to teach, because I thought I was headed there. That, of course, became the basis for our affirmative action, the Civil Rights action in 1965.

I would not think those two instances rose to such gravity as the violation of human rights to be an impeachable offense.

Mr. LEACH. Are there any in the Reagan administration today? Mr. FERGUSON. It comes close. I have not concluded, but our dealing with South Africa comes extremely, extremely close to an impeachable offense.

Mr. LEACH. Can you clarify that?

Mr. FERGUSON. As compared to the Carter administration, the retying that we have engaged with South Africa, including the official-visits-of the intelligence officials to this country, the visits of those officials in the Department of Defense, and at the U.S. Mission to the U.N. where the function of South African intelligence is not in the classic picture of finding your enemy finding out what his intents are.

The function of the intelligence establishments in South Africa is to keep the blacks in their place. And consequently to remake those ties which were broken in the Carter administration comes awfully close to being an accomplice of repression and suppression of blacks in South Africa.

I spell all this out in an article which the Carter administration adopted for Foreign Affairs in 1978.1 This administration has rejected it regarding South Africa, including permitting the IMF to make a loan to South Africa, allegedly for the purpose of helping

1 The article is entitled "South Africa: What is to be Done." It is printed in Foreign Affairs, vol. 56, January 1978.

the blacks but in fact, for the purpose of making sure the blacks didn't get off the reservation.

Mr. LEACH. I appreciate your comments. Let me just stress, as someone who has been a critic of this and the former administration is policy on human rights, I have concluded that there is not an impeachable offense implied.

I would be interested to know if you, with your background, having really been the architect of the term "consistent pattern,' would care, either now or for the record, to give a substantial definition of that term, one that perhaps could help guide the committee in discussing this with the administration; second, whether you think there is a definitive distinction between "consistent pattern' and "pattern," as it is being considered in the statute today and in making a change.

I do not know whether you would like to comment on that. Mr. FERGUSON. I would be delighted to furnish that for the record.

I have made available to the staff a piece of memoire which covers the origin of the terms in the United Nations. I will expand that-not sanitize it, but I will expand it to more precisely deal with the question of definition.

Mr. LEACH. It would be very much appreciated. It is an extraordinary article. It goes right to the nitty gritty I think the historical as well as the legal current assessment of someone with your stature would be very helpful.

Mr. FERGUSON. Thank you.

Mr. LEACH. By the way, Professor Cohen, your article is helpful for good Republicans to point out that a human rights doctrine did not begin with the Carter administration, even though it was actively and sometimes well articulated by it. I appreciate your academic integrity as someone who once served in a particular administration, in presenting an honest assessment and criticism of it. So thank you.

Mr. YATRON. Professor Cohen, I have one final question.

Patt Derian has stated that, with respect to human rights, the Reagan administration has a double standard but the Carter administration did not. Along this line, Ms. Derian observed that human rights conditions in Turkey in the late 1970's were deplorable, but the Carter White House gave assistance to Turkey anyway, and that decision was taken out of the Human Rights Bureau's hands.

Would you suggest that, with respect to Turkey, the Carter administration had a double standard?

Mr. COHEN. Mr. Chairman, I am not at all familiar with the decisions made in the case of Turkey, or the facts of political and human rights conditions in Turkey during this period. I am sorry, but that was a subject I did not work on at all.

If I can say one thing, section 502B does contain an exception for extraordinary circumstances affecting the national security of the United States and if these exceptions are invoked, security assistance can go forward even if there exists a consistent pattern of human rights violations.

Given Turkey's proximity to the Soviet Union and given the importance of Turkey to NATO, whatever the human rights condition