TREATIES AND EXECUTIVE AGREEMENTS

WEDNESDAY, APRIL 8, 1953

'UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met, pursuant to recess, at 10 a. m., in room 424, enate Office Building, Senator William Langer, chairman, presiding. Present: Senators Langer, Watkins, Butler, and Smith.

Also present: Senator Bricker; Wayne H. Smithey, subcommitee unsel.

The CHAIRMAN. The committee will come to order.

This is the time set for the appearance of Mr. Wilson. He said he anted to testify here today. Is Mr. Wilson here or anybody here presenting him?

Mr. NASH. I am here, Mr. Chairman, to represent the Secretary Defense who would be here himself if it were not for the fact that e National Security Council is meeting on a very important matter is morning. He has asked me to appear on his behalf in this very portant matter of Senate Joint Resolution 1.

The CHAIRMAN. We are very glad to have you here, indeed. Go ght ahead.

ATEMENT OF FRANK C. NASH, ASSISTANT SECRETARY OF DEFENSE, ACCOMPANIED BY ROGER KENT, GENERAL COUNSEL, DEPARTMENT OF DEFENSE

Mr. NASH. I have a prepared statement, Mr. Chairman, which I lieve has been distributed. With your permission, it is not very ng, I would like to go through it.

The CHAIRMAN. Go right ahead.

Mr. NASH. Mr. Chairman and members of the committee, I would e first of all to express my appreciation for this opportunity to ve you the views of the Department of Defense with regard to Sene Joint Resolution 1.

Like its predecessor in the previous Congress, Senate Joint Resoluon 130, this proposed amendment to the Constitution is of vital inrest to the Department of Defense.

You know the important part that treaties, executive agreements, d other international arrangements play in the development of an tegrated defense system for the free nations of the world. The ornization, supply, and deployment of an effective system of defense r these nations can no longer depend solely on the old-fashioned ilitary alliance. Countries can no longer merely agree to stand tother and let it go at that. Effective use of manpower, raw materials,

industrial capacity, and geography requires careful coordination and distribution of the various parts which go to make up the total defense. The development of an integrated defense system must of necessity cut across national borders. In order to avoid violations of sovereignty and in order to provide for a clear and firm distribution of rights, obligations and functions within such a system, we must develop a multitude of operating arrangements-operating arrangements which are as necessary and important to us as leases, deeds, and contracts are to a substantial business.

We can't put a radar station on Iceland without the consent of its Government, or send men and equipment across Italy in a line of communications to our forces in Austria, or build and operate an airbase in Greenland or a Navy base in the Philippines, without agreement of the governments concerned. We can't have a purchasing mission in Belgium such as for offshore procurement, an arms depot in Japan, or a post exchange in the United Kingdom without an agreement, nor can we import supplies and equipment free of duty for our bases in Newfoundland, operate a military post office in France, properly administer a military aid program in Greece, or establish an effective arms embargo against Communist China, without agreements.

Last year the Department of Defense submitted a list of matters covered by treaty, executive agreement, or other arrangement, which are essential to the development of effective defense organizations. I would like to submit that list again at this time.

With your permission, Mr. Chairman, I will not bother to read that list. It is tedious but I think it is most important.

The CHAIRMAN. I think you had better read it.

Mr. NASH (reading):

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, like the armistice negotiations in Korea right now.

7. The treatment of prisoners of war like the sick and wounded in exchange which we are negotiating right now.

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. If I could stop on that one, sir, last year the Congress expressed grave concern at the number of NATO countries that were applying their local tax laws to the construction of airbases that we were financing in Europe and to offshore procurement contracts for which we were placing a very large volume in Europe.

In response to that congressional concern we undertook a little over a year ago to negotiate with each NATO country an agreement whereby they would waive the application of taxes. It is a very complicated business. They were, however, very cooperative. Therefore, by virtue of having this power to negotiate such agreements, we have succeeded in eliminating foreign taxes.

Senator SMITH. Mr. Nash, do you consider what you say now has any relationship whatever to either of these resolutions? Mr. NASH. I do, sir.

Senator SMITH. I would like to know, because I want to get the nefit of your thinking.

Now, the original resolution, Senate Joint Resolution 1, you see, . Chairman, we should keep clear in mind, because I have read press ports of what 2 or 3 of these people have said who have been before s committee. I cannot see any relationship to the applicability or ssible applicability of this bill which if adopted becomes finally a stitutional amendment.

Section 1 says:

provision of a treaty which denies or abridges any right enumerated in this stitution shall not be of any force or effect.

it your contention that a treaty should have the force and effect of ridging the rights under the Constitution?

Mr. NASH. No, sir, I would not say section 1 would be applicable to things I am speaking of here.

Senator SMITH. We can check section 1 off as not being objectionable n?

Mr. NASH. It seems to me axiomatic, section 1 simply declares what Ist be so.

Senator SMITH. Section 2:

To treaty shall authorize or permit any foreign power or any international anization to supervise, control, or adjudicate rights of citizens of the United tes within the United States enumerated in this Constitution or any other ter essentially within the domestic jurisdiction of the United States. Is what you are talking about here affected by that?

Mr. NASH. I think it may be. If I could come along in the prepared tement, I think it might. I would say to answer your question at s point that the things that I am speaking of here in this list come, feel, into difficulty more under section 4 than they do under secns 1, 2, or 3.

Senator SMITH. Let us read section 3. Section 3 says:

I treaty shall become effective as internal law in the United States only ough enactment of appropriate legislation by the Congress.

u recognize, do you not, that Congress is a body set up under the nstitution to pass laws that are to be the law in the United States? Mr. NASH. Yes.

Senator SMITH. Then a treaty should not become effective as dostic law, as internal law, unless it has been passed by Congress. u agree with that, do you not?

Mr. NASH. Senator, I am no student of constitutional law.

Senator SMITH. I am afraid that is the point. I am afraid so many ple who have testified have not studied the Constitution enough to preciate what this does do and what this does not do.

You come to section 4:

Il executive or other agreements between the President

I certainly I may say for my part I do not want to impede the sident a particle and I do not think the authors of this resolution

any international organization, foreign power, or official thereof shall be e only in the manner and to the extent to be prescribed by law.

1 do not think they ought to be made beyond the law, do you? That 11 it says, made as prescribed by law.

Mr. NASH. Maybe that is all it says, Senator. The difficulty with even the plainest language is that it means different things under different circumstances to different people. That means to me that we would be unable to undertake any of the negotiations that are of particular interest to the Defense Department except to the extent that Congress has prescribed by law permission for us to go ahead.

Senator SMITH. Now, is it not conceivable that if Congress is going to vote billions of dollars for defense and authorize the Defense Department to spend those billions, by the same token they are going to pass such law as will be necessary for the Defense Department to implement its activity and to spend that money?

Mr. NASH. It is the timing of the enactment, Senator. My main thesis, sir, is that all these things we want to do in defense we bring to Congress, we have to bring to Congress at one time or another. The negotiation of a base agreement, for example, is not of any help to us in defense until Congress gives us the money to go ahead and build it and we have had quite a lot of discussion with Congress as to this base going forward and that one. I will go back to the prepared statement later, but I have had in the last several years quite a number of international negotiations to deal with, representing the interests of the Defense Department. Even with the best good will of the other fellows across the table from you-and it is not just one but there are usually representatives of 14 countries on these NATO things, even with the best of good will and cooperation-of everybody around the table, they are so complicated that if we do not have pretty complete flexibility in the negotiation stage, we cannot get a good deal for the United States. The other fellows do not have those shackles on them.

Senator SMITH. Up to now you do not think anyone has gotten a very good deal in the United States over there?

Mr. NASH. Yes, sir; I do.

Senator SMITH. I do not agree with that.

Mr. NASH. I think we have had a good many good deals.

Senator SMITH. I think we have been taken advantage of right and left by everybody. I do not know that this would have helped it. But when you say we have gotten a good deal, I do not know where the good deal comes in.

Mr. NASH. If I could specify one, we have gotten a good deal out of our NATO partners in getting them to waive tax laws, a really good deal. I think we would have had a difficult time asking the State of Arkansas to waive a local tax that it applies to activities conducted in Arkansas. Yet, we have gotten that in countries like France.

Senator SMITH. Are you speaking of the tax that the French Government levied of $13 per head for every soldier that we have in France?

Mr. NASH. They have waived that.

Senator SMITH. Do you think they should not waive that?

Mr. NASH. I do, indeed.

Senator SMITH. Do you think the State of Arkansas would attempt to levy a tax per head on soldiers to defend Arkansas?

Mr. NASH. You pick an absurd example. We are, for example, constructing an airbase in France, with a local tax on the fellow building it, if the burden of that tax falls on us, we do not want to pay for it

United States dollars but to ask us to waive a local use tax on a nchman is asking a good deal. We got that good deal.

f you want to let me go through a long list of negotiations we have lucted, we have gotten, I think by and large, pretty fair shake for United States. I do not think they are putting much over on us en you consider what we are trying to get. We are not over there— I am not going to make a flag-day speech on this, but you are hing me to the quick when you say we have been taken in at y turn on negotiations with people who are our partners—we are NATO to make it a front line of defense for the United States. at is what we are there for. We are not there to save France or rope. We are there to fight, we hope, as far away from the ted States as we can.

enator SMITH. Do you think they think so?

Ir. NASH. They do think so.

enator SMITH. You mean some of them do. Ir. NASH. Some of them do.

enator SMITH. You have seen the signs, "Go away, American" "Ridgway, stay away from here"?

Ir. NASH. I have seen those, and I was unhappy to see them. I have seen our troops and French troops working on joint maneuvers, working very well.

enator SMITH. What I was trying to say, Mr. Nash, was what real tionship does your argument, being advanced now, have to the subject under discussion here? I know we have a lot of general ements. I was astonished at what Mr. Dulles said according to spapers about this situation, because I cannot see how this could t the Defense Department or any department of Government that hes to conduct itself in accordance with law under the Constitution. ow, if it does, I would not be for it. Then, of course I am sure Senator Bricker feels the same way, because we have this other guage here suggested by Senator Watkins' bill and I am confident t the man who signed this bill would take whichever language -eared to be most feasible and most easily workable.

But the arguments I read in the paper, when I was not here, have a on this general theory, this is going to injure somebody, to stop work of the United States Government, and I cannot see it. I t you to point it out specifically how it is really going to. Ir. NASH. Senator, I never undertake to defend the thesis that a e of proposed legislation that has been signed by sixty-odd Senas has its avowed purpose to interfere with the best interest of the ted States. I do not say that at all. I simply say here that the pose of this, the objective of this, may be a very sound and prob7 is a very sound objective, indeed, but the method by which it is ght to accomplish we think in Defense would give us serious diffiy. If I cannot make out this case by the time I have finished with statement and relate it to this resolution, I will be glad to respond our questions, sir.

Ir. SMITHEY. Is it really the method you are quarreling with or the quage?

Ir. NASH. It is the method and language both.

Ir. SMITHEY. Are you opposed to any constitutional amendment , which would do what is designed to be done here?

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