Mr. NASH. Again I would like to say this in response to all questions along that line, that the approach to the problem as to whether it should be by constitutional amendment or by some other method is a line of questions I would prefer be directed to those who know what the appropriate answer is. Speaking just from the Defense Department point of view, I would be giving you only a personal opinion that would not be worth a great deal. I cannot say whether or not any constitutional amendment would be acceptable. It is a question of seeing what one would be proposed. There I think the judgment of the Attorney General and the Secretary of State would be the appropriate judgment for you, sir, instead of mine.

Mr. SMITHEY. I simply sought to get your opinion on the record, inasmuch as you had indicated you did not like the method.

Mr. NASH. Well, if I were by my answer to be restricted just to methodology, I would like to expand it. I have just finished No. 8 in the enumeration of defense matters which are subjects of international agreement or arrangement. I will go on to the ninth, which is 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 materiel.

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.

The CHAIRMAN. I notice you do not say anything about the enforcement of criminal and civil law.

Mr. NASH. I think, sir, that would be involved in this one at the bottom of page two, the juridical status of visiting forces and of international commands.

The CHAIRMAN. You testified before the Foreign Relations Committee yesterday. You remember we took up at that time that here is a boy from the United States who is drafted and he is taken over there to a country where they do not have trial by jury, where they do not have bail. Now, are you in favor or are you not in favor of boys from the United States, drafted, going into a country where that kind of thing is done without the Congress of the United States having some sayso about it, just because some people never heard of it, meet

around this table, representing 14 nations and signing up an ement? Are you in favor of that or do you believe that ought o back to Congress and have the Congress decide whether they are g to send their boys over there to be tried without a jury? r. NASH. Senator, I think by virtue of the very fact that we were hearing on that question yesterday morning indicates that that not go into effect until the Senate of the United States has given approval to it by two-thirds majority. The very fact we were e yesterday and you were raising those questions and other memof the committee were raising those questions indicates my conion that that sort of thing must have the approval of Congress or east of that body of Congress, the upper body, the Senate, that er the Constitution has the treaty laws.

enator SMITH. Why should these not have the approval of ConEs then, the things that will bring those conditions about?

Ir. NASH. Senator, to the extent that any of these things attain importance of a treaty or even of an executive agreement or of arrangement, I would say there is not a single thing listed here we have not at one stage or another consulted with Congress, laid efore Congress, both Houses, in order to get the appropriations. s I remarked a little while ago, the review of practically everyg the Defense Department does in the negotiation field comes re the Congress' scrutiny in conjunction with the necessity of our ing the funds to carry it out. I cannot think in 22 years of ious and sundry discussions of a single problem that has not been before Congress in one form or another, from my own personal

Prience.

he CHAIRMAN. I just want to give some of the statements of some our boys who were in World War II. They said you went in and t on one island over $100 million fortifying it. Then the moment World War was over you pulled down the American flag and put he British flag, turned the whole thing over to Britain. You cerly did not consult with Congress when you did that.

Ir. NASH. I am sure Congress heard about it one way or another,

ator.

enator SMITH. Is that not one of the difficulties, that Congress a at many times does not hear about these things until after they e been done and done to the detriment of America in many inices?

Ir. NASH. That may happen, Senator.

enator SMITH. I fully appreciate what an enormous problem you e in the Defense Department, I appreciate what Mr. Wilson is ng to do fully, but from what people have told me and what I e seen, I certainly think there is every reason for Congress to legisor to be consulted before certain things are done.

[r. NASH. That is the whole case right there, Senator, before certhings are done. But if we have to come to Congress before we make a move and not just consult with Congress and the commitbut get an act adopted by Congress

enator SMITH. None of this means that.

r. NASH. We worry that it does. We worry that section 4, "to rescribed by law," means that.

enator SMITH. That does not mean that at all. It means that gress is to do what the Constitution states it should do, to legislate

for the people of America and not let a few people in the executive department run off and make those agreements and bind America and bind the people and mortgage the blood of American youth to do these things that a few people get together and decide should be done.

In your own department one of the biggest contractors in America was on the plane, came from my State up here to discuss with some of the people over there in the Defense Department-I do not mean the civilian end of the Defense Department-and he told me about the enormous waste and extravagance which had been incurred, and this man was a contractor. He spent a few hours over here and that was the last heard about it. I think any restrictions that Congress places upon a proper interpretation of an amendment like this would be a good thing for America and would keep us out of these things we have gotten into so deep now it looks like we may not be able to get out.

I know in all the history of the world the fight has always been for the executive department of every government to grab all the power; and all abuses in history, practically all of them, have been by the executive power in an effort to control the lives and dominate the people under it.

If we can work out the plan by which the executive department can have all the power it needs-and again I am not talking about the President, I have great confidence in him-but if we can say to the executive department, "You can go so far, but you can't go any further under the constitution," I cannot yet see any connection, relationship between the proposed amendment and what you have said so far. But I am listening to you.

Mr. NASH. All right, sir, if I can go on, I may achieve a little more in the way of conviction.

Senate Joint Resolution 1 is designed to place limitations upon the extent and exercise of the powers of the United States in the field of foreign affairs.

Senator SMITH. You said:

place limitations upon the extent and exercise of the powers of the United States in the field of foreign affairs,

I do not think that is a correct statement, limitation upon the exercise of the powers of the United States. It is a restriction on certain individuals who may be representing the United States Government at certain times. Is that not what you mean?

Mr. NASH. Senator, I stand on that statement, sir. I stand on it in this respect, that the Congress of the United States cannot negotiate the multiplicity of agreements that we have to work out almost day by day with these countries around the world. The Congress has to depend on not a few persons but the executive branch of the Govern

ment.

Senator SMITH. Nobody is suggesting that.

Mr. NASH. This bill in my opinion would place limitation on the extent and exercise of the representatives of the United States to do the job.

Senator SMITH. Maybe we ought to have limitation upon that. That is saying a different thing than what you said a few minutes ago, Mr. NASH. Do not handcuff them.

Senator SMITH. It does not look as though anybody has been handcuffed up to now.

Ir. NASH. Looking to the future, such a proposal as this would in view handcuff seriously the United States. It is not a matter of a individuals. Whoever is representing the United States is the ited States in that capacity.

enator SMITH. You are getting off into a different concept of what United States is from what I have, and I am sure what the chairn has. Of course I know the difference, and you do, too, between concept of government over in Europe that comes from the king wn to the people and that in America which comes from the people When we speak in the United States, we speak of the States that given the powers that the people of America have given to them. are not speaking of handcuffing the United States because whatr the people do through their legislative bodies is the United tes, it is not a separate entity as I see it.

Ir. NASH. Whatever the people do through their elected Executive, Chief Executive, is likewise the United States. That is what I am aking to here when I say the United States.

enator SMITH. The difference is that the people do not elect these ple that get us into most of these troubles. They are appointees. ey do not elect them.

fr. NASH. They do hold the President accountable for the quality he people he appoints to help them.

enator SMITH. You would not say that congressional clerks, no ter how well qualified, should have the power or opportunities to reise the privileges and duties of elected representatives of the ple, would you?

Ir. NASH. No, Senator; but I do say this, that the business has to forward; it is essential that operations go forward and that takes ple. It cannot take the busy 96 Senators to go through the details lay-by-day operations. Somebody has to do it for them.

Senator SMITH. Nobody is suggesting that detail. Certainly these s do not suggest any details be handled by Congress at all. Ir. NASH. The real difficulty I have, sir, is that it is impossible to inguish between what you spoke of a little while ago being certain gs and other things. We are literal-minded people in the military. ey are trained, "orders is orders," is the password. When they have ething laid down that is perhaps ambiguous, they will err on the of obedience. They will be so literal-minded that you will have give them an opinion of the Attorney General, ratified by the Conss, before they will go ahead and take action in an area of ambiguity uch importance as that represented by Senate Joint Resolution 1. enator SMITH. Again, "official thereof shall be made only in the ner and to the extent to be prescribed by law." Do you object hese duties being prescribed by law?

Ir. NASH. If I understand that phrase, to mean that there must nticipatory legislation before we can go forward with any agreeat between a foreign power or official, yes; because it just could not

k.

enator SMITII. I do not know whether it could or not. I think if gress authorized certain things to be done and declared a war, I do see why it would not be the proper kind of anticipatory legislation. Ir. NASH. Let me take an example. We are going on in Panmunjon h some very delicate negotiations to get an exchange of sick and

wounded prisoners. That is reaching an agreement with a foreign power, foreign official.

Senator SMITH. That war was entered upon without any declaration by Congress, too; was it not?

Mr. NASH. But we are in it.

Senator SMITH. I know that, but if that war had been discussed and debated on the floor of the Senate, the chances are we would not be in it today, because the facts would have been brought out.

Mr. NASH. I was not in the Defense Department at the time of June 1950, Senator, but I do have the impression, thinking back on it, that the entrance of the United States into Korea was pretty universally applauded.

Senator SMITH. I think you are right about that, but I say if the facts had been brought out and debated on the Senate floor as to what should have been done, we might not have been in there. Do you concede that?

Mr. NASH. I think that is conceivable, yes, sir.

Senator SMITH. Because we would have had more of the facts of what we were getting into.

Mr. NASH. I think by the time we had the debate you would find we were in a predicament that what was done in 1950 had to be done. Senator SMITH. Are you in favor of this country entering in a war when somebody in the Defense Department or Executive agrees it should be done, without declaration of Congress?

Mr. NASH. No, sir.

Senator SMITH. That is why we are in it now. You do not call it police action, do you?

Mr. NASH. I do not, indeed, having been over there in October and November and seen it. I do want to finish this point of these negotiations going on in Panmunjon. I have seen how our Joint Chiefs of Staff have day after day tried to work out the instructions to General Clark and his predecessors over there for this move and that move that the Communists negotiators might make. How you can ever have anticipatory legislation except in the broadest terins, which would really be more or less, and have us be able to do a good job at Panmunjon is beyond my understanding. But let me see if I can get a little bit on here.

The purpose of these limitations is to guard against an apprehended danger-which I am not here to evaluate that those powers may be misused. I am here, however, to say that in the opinion of the Department of Defense these limitations themselves would create very serious difficulties for us. The Department has examined this resolution very carefully. It has been considered by specialists on the subject in the Army, Navy, and Air Force-the people who would have to operate under these limitations and we are unanimous in the feeling that they would seriously interfere with essential military operations, both in peace and in war. I would like to address my self to three principal areas of potential difficulty.

The first difficulty with which we would be confronted is that this resolution would seriously interfere with our ability to obtain newssary rights and privileges for United States forces stationed in foreign countries.

Our ability to obtain these rights and privileges would be seriously curtailed if the United States were unable, as a matter of reciprocity,