The Honorable Jack Brooks Page 3 capabilities.' These provisions are especially problematic, for they would have the President discuss the desirability of certain agreements before negotiations concerning such an agreement have begun." Crawford Letter at 3. Before discussing the abstract and extreme assault on such reporting requirements put forth by the Justice Department, it should be noted that it is entirely unclear why the Department of Justice has commented upon legislation which concerns other departments fully staffed with their own general counsels with clearer responsibility and greater experience in their areas of the law regarding national defense and foreign policy than that of the Department of Justice. The apparently gratuitous intrusion by the Department becomes doubly troubling when the Department's letter is closely examined, because it is apparent that the Justice Department does not write, as the Defense or State Departments would, out of experience with the long-standing precedents and relationships among the political branches in the shared realms of defense and foreign policy, but out of some abstract agenda involving little ΟΙ no real-world experience. Whereas these departments would have familiarity with the history, the Justice Department provides no discussion whatsoever of whether there have been prior precedents of such provisions, or whether any recent court decisions cast doubt on such provisions. Moreover, whereas these departments have defense and foreign policy expertise, the Justice Department offers up its foreign policy views without such expertise. The Honorable Jack Brooks Page 4 For example, regarding the provision just noted, the Department expounds its view of foreign policy, arguing that "Requiring the President to report on the desirability of negotiating a particular agreement with the Soviets is to hand the Soviets an enormous advantage in the negotiation of any treaty. Thus, in adition to being constitutionally problematic, they are also enormously unwise practically." Crawford Letter at 3. The Defense and State Departments may know what would or would not create "an enormous advantage" in treaty negotiation, but unless the Justice Department has created its own duplicative corps of diplomats, intelligence officers, and defense analysts, its statements on the subject are gratuitous hyperbole. In reality, the Justice Department says nothing to suggest it knows anything about the actual status of treaty negotiations, and has committed the grievous error of using hyperbole about foreign affairs as a substitute for legal analysis. It The Justice Department assaults these reporting requirements, and other provisions discussed below, based on the following views of Executive prerogative. is asserted that "[u]nder the Constitution, the President has the exclusive authority to conduct and manage our relations with foreign nations" and that "[t]his constitutional grant of authority to the President includes the power to determine the form and manner in which the United States will maintain relations with foreign nations as well as to withhold disclosure of information which would adversely affect the security of the United States." (emphasis added). The Department loosely The Honorable Jack Brooks November 8, 1989 Page 5 invokes dicta from United States v. Curtiss-Wright Export Co., 299 U.S. 300, 320 (1936), in which the Court observed that the President is "the sole organ of the federal government in the field of international relations". Ms. Crawford fails to note what the word "organ" was intended to mean, namely, not that the President is the sole maker of defense and foreign policy, but simply that he is the organ channel of communication - - - the by which foreign governments receive pronouncements from the United States. The Court was borrowing the "sole organ" language which had been originally used by John Marshall in a speech on the floor of the House in 1800, in which the then-Congressman, and later Chief Justice, explained quite the opposite of Ms. Crawford's extreme view not that the Executive functioned beyond Congress, but that the Executive was bound by the Constitution to execute the law, such as a treaty as ratified by the Senate. As pointed out by a highly respected scholar on the Presidency, "[c]learly, what Marshall had foremost in mind was simply the President's role as instrument of communication with other governments." E. Corwin, The President: Office and Powers 1787-1957 178 (1957). the In the case Ms. Crawford relies upon, Curtiss-Wright, Court was not holding that the Executive functioned beyond Congress. Rather, the Court held that an Act of Congress regarding a foreign policy matter, an embargo on arms exports to a Latin American conflict of the 1930s, was valid. Quite simply the Curtiss-Wright case will not support the Department's view of The Honorable Jack Brooks November 8, 1989 Page 6 exclusive Executive powers. Indeed, the federal courts have consistently indicated that the conduct of foreign policy is a shared power between Congress and the President. Only three years ago the Supreme Court in a case involving "this Nation's foreign relations," recognized "the premier role which both Congress and the Executive play in this field." Japan Whaling Ass'n. v. American Cetacean Society, 106 S.Ct. 2860, 2866 (1986). See also, C.& S. Air Lines v. Waterman Corp., 333 U.S. 103, 111 (1948) (foreign policy issues are "confined by our Constitution to the political departments of the government, Executive and Legislative"); Goldwater v. Carter, 617 F.2d 697, 709 (D.C. Cir. 1979, vacated on other grounds, 444 U.S. 996 (1980) ("The legislatures's powers, including prominently its dominant status in the provision of funds, and its authority to investigate the Executive's functioning, establish authority for appropriate legislative participation in foreign affairs."); United States v. AT&T, 567 F.2d 121, 128 (D.C. 1977) (rejecting arguments that the Executive has "absolute discretion in the area of national security.") . That Congress has tremendous Constitutional power in the fields of foreign policy and national security is evident. It is the Congress - not the President empowers "to declare war," - which the Constitution art. I, S 8, cl. 1; to "regulate Commerce" including foreign commerce, art. I, S 8, cl. 3; "to raise and support armies," art.I § 8, cl. 12, "to provide and maintain a navy," id. cl. 13, "to make rules for the Government and The Honorable Jack Brooks Page 7 regulation of the land and naval forces," id, cl. 14, and "to provide for organizing, arming and disciplining, the militia," id., cl. 16. Further, Congress' power over appropriations, U.S. Const., art. I, 9, cl.7, underlies every governmental policy and function, particularly those pertaining to foreign relations and national security. It serves as one of the Framer's basic principles for a free republic: as George Mason stated it, "the purse and the sword should not be in the same hands," M. Farrand, 1 The Records of the Federal Convention of 1787 at 144 (1937). Looking at the actual history and precedents on these reporting requirements shows the hollowness of the Justice Department's abstract analysis. Far from acting as though reporting to Congress on antisatellite matters undermined it, the Reagan Administration agreed to such reporting, conducted such reporting and simply used it as a forum to articulate its position. The legislative history of the defense authorization bill, completely ignored by the Justice Department, makes this plain. (For legislative history, this memo will refer to the House and Senate Armed Services Committee reports on the defense authorization as the "House Report" and the "Senate Report.") 4 The House report for H.R. 2461 is National Defense Authorization Act for Fiscal Years 1990-1991: H.R. Rep. No. 121, 101st Cong., 1st Sess. (1989). The Senate committee reported S.1352, later adopting amended versions and then striking the contents of H.R. 2461 and inserting the amended versions; the Senate report on S.1352 is National Defense Authorization Act for Fiscal Years 1990 and 1991: S. Rep. No. 821, 101st Cong., 1st Sess. (1989). |