Constitutional Objections

With regard to the Constitutional issues posed by S. 2662, this bill contains an array of objectionable requirements whereby virtually all significant arms transfer decisions would be subjected on a case-bycase basis to a period of delay for Congressional review and possible disapproval by concurrent resolution of the Congress. These provisions are incompatible with the express provision in the Constitution that a resolution having the force and effect of law must be presented to the President and, if disapproved, repassed by a two-thirds majority in the Senate and the House of Representatives. They extend to the Congress the power to prohibit specific transactions authorized by law. without changing the law-and without following the constitutional process such a change would require. Moreover, they would involve the Congress directly in the performance of Executive functions in disregard of the fundamental principle of separation of powers. Congress can, by duly adopted legislation, authorize or prohibit such actions as the execution of contracts or the issuance of export licenses, but Congress cannot itself participate in the Executive functions of deciding whether to enter into a lawful contract or issue a lawful license, either directly or through the disapproval procedures contemplated in this bill.

The erosion of the basic distinction between legislative and Executive functions which would result from the enactment of S. 2662, displays itself in an increasing volume of similar legislation which this Congress has passed or is considering. Such legislation would pose a serious threat to our system of government, and would forge impermissible shackles on the President's ability to carry out the laws and conduct the foreign relations of the United States. The President cannot function effectively in domestic matters, and speak for the nation authoritatively in foreign affairs, if his decisions under authority previously conferred can be reversed by a bare majority of the Congress. Also, the attempt of Congress to become a virtual co-administrator in operational decisions would seriously distract it from its proper legislative role. Inefficiency, delay, and uncertainty in the management of our nation's foreign affairs would eventually follow.

Apart from these basic constitutional deficiencies which appear in six sections of the bill, S. 2662 is faulty legislation, containing numerous unwise restrictions.

Annual Ceiling on Arms Sales

A further objectionable feature of S. 2662 is an annual ceiling of $9.0 billion on the total of government sales and commercial exports of military equipment and services. In our search to negotiate mutual restraints in the proliferation of conventional weapons, this self-imposed ceiling would be an impediment to our efforts to obtain the cooperation of other arms-supplying nations. Such an arbitrary ceiling would also require individual transactions to be evaluated, not on their own merits, but on the basis of their relationship to the volume

of other, unrelated transactions. This provision would establish an arbitrary, overall limitation as a substitute for case-by-case analyses and decisions based on foreign policy priorities and the legitimate security needs of our allies and friends.

Discrimination and Human Rights

This bill also contains well-intended but misguided provisions to require the termination of military cooperation with countries which engage in practices that discriminate against United States citizens or practices constituting a consistent pattern of gross human rights violations. This Administration is fully committed to a policy of not only actively opposing but also seeking the elimination of discrimination. by foreign governments against United States citizens on the basis of their race, religion, national origin or sex, just as the Administration is fully supportive of internationally recognized human rights as a standard for all nations to respect. The use of the proposed sanctions against sovereign nations is, however, an awkward and ineffective device for the promotion of those policies. These provisions of the bill represent further attempts to ignore important and complex policy considerations by requiring simple legalistic tests to measure the conduct of sovereign foreign governments. If Congress finds such conduct deficient, specific actions by the United States to terminate or limit our cooperation with the government concerned would be mandated. By making any single factor the effective determinant of relationships which must take into account other considerations, such provisions would add a new element of uncertainty to our security assistance program and would cast doubt upon the reliability of the United States in its dealings with other countries. Moreover, such restrictions would most likely be counterproductive as a means for eliminating discriminatory practices and promoting human rights. The likely result would be a selective disassociation of the United States from governments unpopular with the Congress, thereby diminishing our ability to advance the cause of human rights through diplomatic means. Trade with Vietnam

The bill would suspend for 180 days the President's authority to control certain trade with North and South Vietnam, thereby removing a vital bargaining instrument for the settlement of a number of differences between the United States and these countries. I have the deepest sympathy for the intent of this provision, which is to obtain an accounting for Americans missing in action in Vietnam. However, the enactment of this legislation would not provide any real assurances that the Vietnamese would now fulfill their long-standing obligation to provide such an accounting. Indeed, the establishment of a direct linkage between trade and accounting for those missing in action might well only perpetuate Vietnamese demands for greater and greater concessions.

This Administration is prepared to be responsive to Vietnamese action on the question of Americans missing in action. Nevertheless, the

delicate process of negotiations with the Vietnamese cannot be replaced by a legislative mandate that would open up trade for a specified number of days and then terminate that trade as a way to achieve our diplomatic objectives. This mandate represents an unacceptable attempt by Congress to manage the diplomatic relations of the United States.

Termination of Grant Military Assistance and Advisory Groups

The legislation would terminate grant military assistance and military assistance advisory groups after fiscal year 1977 except where specifically authorized by Congress, thus creating a presumption against such programs and missions. Such a step would have a severe impact on our relations with other nations whose security and wellbeing are important to our own national interests. In the case of grant assistance, it would limit our flexibility to assist countries whose national security is important to us but which are not themselves able to bear the full cost of their own defense. In the case of advisory groups, termination of missions by legislative fiat would impair close and longstanding military relationships with important allies. Moreover, such termination is inconsistent with increasing Congressional demands for the kind of information about and control over arms sales which these groups now provide. Such provisions would insert Congress deeply into the details of specific country programs, a role which Congress has neither the information nor the organizational structure to play.

I particularly regret that, notwithstanding the spirit of genuine cooperation between the Legislative and Executive Branches that has characterized the deliberations on this legislation, we have been unable to overcome the major policy differences that exist.

In disapproving this bill, I act as any President would, and must, to retain the ability to function as the foreign policy leader and spokesman of the Nation. In world affairs today, America can have only one foreign policy. Moreover, that foreign policy must be certain, clear and consistent. Foreign governments must know that they can treat with the President on foreign policy matters, and that when he speaks within his authority, they can rely upon his words. Accordingly, I must veto the bill.

GERALD R. FORD.

Agreed Statement on the Treaty Between the United States of America and the Union of Soviet Socialist Republics on Underground Nuclear Explosions for Peaceful Purposes, May 13, 19761

The Parties to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on Underground Nuclear

1Arms Control and Disarmament Agreements: Texts and History of Negotiations (ACDA pub. 94; 1977), pp. 179–180. The statement accompanied the treaty and its protocol and was submitted with them to the Senate on July 26, 1976, for advice and consent to ratification.

Explosions for Peaceful Purposes,2 hereinafter referred to as the Treaty, agree that under subparagraph 2(c) of Article III of the Treaty:

(a) Development testing of nuclear explosives does not constitute a "peaceful application" and any such development tests shall be carried out only within the boundaries of nuclear weapon test sites specified in accordance with the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Underground Nuclear Weapon Tests;

3

(b) Associating test facilities, instrumentation or procedures related only to testing of nuclear weapons or their effects with any explosion carried out in accordance with the Treaty does not constitute a "peaceful application."

Address by Governor Carter Before the Conference on Nuclear Energy and World Order, May 13, 19761

Mr. Chairman, Mr. Director-General, Captain Cousteau, Ambassador Akhund, Mr. Lehman:

I have a deep personal concern with the subject of this conference today "Nuclear Energy and World Order."

I have had training as a nuclear engineer, working in the United States Navy on our country's early nuclear submarine program. I learned how nuclear power can be used for peaceful purposes-for propelling ships, for generating electric power, and for scientific and medical research. I am acutely aware of its potential—and its dangers. Once I helped in disassembling a damaged nuclear reactor core in an experimental reactor at Chalk River, Canada.

From my experience in the Navy and more recently as Governor of Georgia, I have come to certain basic conclusions about the energy problem. The world has only enough oil to last about 30 to 40 years at the present rate of consumption. It has large coal reserves-with perhaps 200 years of reserves in the United States alone. The United States must shift from oil to coal, taking care about the environmental problems involved in coal production and use. Our country must also maintain strict energy conservation measures, and derive increasing amounts of energy from renewable sources such as the sun.

U.S. dependence on nuclear power should be kept to the minimum necessary to meet our needs. We should apply much stronger safety standards as we regulate its use. And we must be honest with our people concerning its problems and dangers.

2

* Post, pp. 328–332.

3 Documents on Disarmament, 1974, pp. 225–229.

1 Press release from Carter Presidential Campaign Committee. The conference, which was held in New York, was sponsored by the United Nations.

I recognize that many other countries of the world do not have the fossil fuel reserves of the United States. With the four-fold increase in the price of oil, many countries have concluded that they have no immediate alternative except to concentrate on nuclear power.

But all of us must recognize that the widespread use of nuclear power brings many risks. Power reactors may malfunction and cause widespread radiological damage, unless stringent safety requirements are met. Radioactive wastes may be a menace to future generations and civilizations, unless they are effectively isolated within the biosphere forever. And terrorists or other criminals may steal plutonium and make weapons to threaten society or its political leaders with nuclear violence, unless strict security measures are developed and implemented to prevent nuclear theft.

Beyond these dangers, there is the fearsome prospect that the spread of nuclear reactors will mean the spread of nuclear weapons to many nations. By 1990, the developing nations alone will produce enough plutonium in their reactors to build 3,000 Hiroshima-size bombs a year, and by the year 2000, worldwide plutonium production may be over 1 million pounds a year-the equivalent of 100,000 bombs a year-about half of it outside of the United States.

The prospect of a nuclear future will be particularly alarming if a large number of nations develop their own national plutonium reprocessing facilities with the capacity to extract plutonium from the spent fuel. Even if such facilities are subject to inspection by the International Atomic Energy Agency and even if the countries controlling them are parties to the Non-Proliferation Treaty, plutonium stockpiles can be converted to atomic weapons at a time of crisis, without fear of effective sanction by the international community.

The reality of this danger was highlighted by the Indian nuclear explosion of May, 1974, which provided a dramatic demonstration that the development of nuclear power gives any country possessing a reprocessing plant a nuclear weapons option. Furthermore, with the maturing of nuclear power in advanced countries, intense competition has developed in the sale of power reactors, which has also included the sale of the most highly sensitive technologies, including reprocessing plants. With the spread of such capabilities, normal events of historyrevolutions, terrorist attacks, regional disputes, and dictators-all could take on a nuclear dimension.

Dr. Alvin Weinberg, former Director of the Oak Ridge National Laboratory and one of the most thoughtful nuclear scientists in the United States was properly moved to observe:

We nuclear people have made a Faustian bargain with society. On the one hand we offer an inexhaustible supply of energy, but the price that we demand of society for this magical energy source is both a vigilance and a longevity of our social institutions that we are quite unaccustomed to.

Nuclear energy must be at the very top of the list of global challenges that call for new forms of international action. The precise

2 Documents on Disarmament, 1968, pp. 461-465.