The Honorable Jack Brooks The Supreme Court subsequently upheld this method of acquisition.10 Similarly, in 1898, the United States annexed Hawaii by joint resolution following the failure of the Senate to ratify treaties of annexation.11 Again, the Supreme Court approved this method of acquisition.12 13 In the twentieth century, examples of action by legislation, rather than treaty negotiation, include the legislation formally ending World War 1, and for the United States to join the International Labor Organization. 15 During and after World War II, 14 Constitution of the United States 62-67 (1941); McDougal & Lans, supra, 54 Yale L.J. at 263-64. 10 11 Texas v. White, 7 Wall. (74 U.S.) 700 (1868). 30 Stat. 750 (1898); McClure, supra, at 67-68; McDougal & Lans, supra, at 266-67. 12 Hawaii v. Mankichi, 190 U.S. 197 (1903). 13 Following the dramatic Senate refusal to ratify the Treaty of Versailles, there was a strong interest in agreements by legislation requiring the concurrence only of a majority of both Houses of Congress, rather by treaty which could be defeated by a mere one-third plus one of the Senate. 14 Since the Senate has refused to ratify the Treaty of Versailles, and had thereby left the United States formally in a state of war with Germany (though without hostilities, of course, after the armistice agreement of November 11, 1918), the formal means of ending the United States' involvement in World War I against Germany was a joint resolution of Congress declaring the end of the war. 42 Stat. 105 (1921); McClure, supra, at 11. 15 Since the Senate had refused, in rejecting the Treaty of Versailles, to allow the United States to join any of the international organizations associated therewith, the United States joined the International Labor Organization by joint resolution. 48 Stat. 1182 (1943); McClure, supra, at 125. The Honorable Jack Brooks November 8, 1989 a host of agreements were approved by legislation.16 Prominent examples included the United States' joining the International 17 Monetary Fund. The SALT I Agreement was approved in 1972 by 18 joint resolution.19 Part of the accord reached at that time agreement restricting anti-ballistic missile systems was approved by ratification of a treaty, the so-called ABM Treaty. However, the other part of SALT I, adopting restraints on development of strategic missile systems for the following five years, was approved by joint resolution. This dual method fit the framework established by Section 33 of the Arms Control and Disarmament Act of 1961, which provided: That no action shall be taken under this 16 at 72. See Treaties and Other International Agreements, supra, 17 18 39 Stat. 669 (1945). Interim Agreement between the United States of America and the Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, May 26, 1972, 23 U.S.T. 3462, T.I.A.S. No. 7504. 19 (1972). Weapons: Sec.2 of H.J. Res. 1227, Pub. L. 92-448, 86 Stat. 746 See Agreement on Limitation of Strategic Offensive Hearings Before the House Comm. on Foreign Affairs, 92d Cong., 2d Sess. (1972). The Honorable Jack Brooks The Arms Control and Disarmament Act stands as a lasting indication of the appropriateness of either method of Congressional approval "author [ization] by further affirmative legislation by the Congress," or "the treaty making power of the President." Even more closely on point, legislation (as distinguished from treaties) has been used to authorize the United States' military aid and base agreements with foreign countries from Lend-Lease through the Cold War.21 The issues of Lend-Lease, military aid, and base agreements are the immediate progenitors of the current issue of allied burden-sharing. Thus, the Justice Department is assaulting the constitutionality of the defense authorization bill's similar provisions without even discussing the legal and constitutional history of the subject, and that history is directly antithetical to its abstract analysis. constitutional In conclusion, the Justice Department's arguments for total executive control over defense, foreign policy and related information are grossly self-serving and overblown. Their positions on these Constitutional matters are purely abstract and are uninformed by analysis of the pertinent history and precedents sustaining Congress's clear authority. The Justice Department positions are an unexplained sharp break with the past, and are without merit. 21 55 Stat. 31 (1941) (Lend-Lease); 22 U.S.C. $ 2751 (Arms Export Control Act]. See J. Paige, The Law Nobody Knows: Enlargement of the Constitution Treaties and Executive Agreements 58 (1977). Thank you for your letter of January 31, 1989. I fully share your commitment to maintaining a productive and cooperative relationship which recognizes the responsibilities of our respective Branches. You express concern that certain recent actions by the Department may reflect a general effort to obstruct Congressional access to Executive Branch information. I want to assure you that this is not the case. We fully recognize that Congress, in carrying out its legislative responsibilities, has a legitimate need to obtain information from the Executive Branch. It has been, and will continue to be, our policy to seek to accommodate Congress' legitimate informational needs to the maximum extent possible. Let me turn to the three specific issues you have raised, briefly describing the progress we have made on two of these, and then addressing the third in more detail. 1. We appreciate the importance of your Committee's review of the Project Eagle and the Inslaw matters, and we seek to cooperate fully. The Acting Assistant Attorney General for the Office of Legislative Affairs, Bruce Navarro, wrote you on February 14, 1990, suggesting procedures to facilitate the Committee's access to needed information. Please let me know if that response is in any way unsatisfactory. 2. I appreciate your willingness to consider a possible accommodation regarding the request for copies of the Office of Legal Counsel opinions on the overseas arrest authority of the FBI and the military. As you and I discussed on the telephone, I believe it is vital to the operation of all three Branches that internal legal advice be kept confidential. At the same time, I understand Congress' interest in ascertaining the legal positions that underlie Executive Branch policies and actions. After our conversation, the Assistant Attorney General for the Office of Legal Counsel met with Chairman Edwards, who indicated that he would consider our proposal to provide him, in lieu of the opinions, a comprehensive written statement of the Department's legal position on these issues. I strongly believe that resolving this matter along these lines would be the best way to accommodate each other's interests. 3. The third issue that you raised does not relate to an actual instance of a Congressional information request, but instead to a legal position taken in a bill comment. In a September 8, 1989 letter to the House Armed Services Committee regarding the defense authorization bill, the Department stated the position that there may be occasions where, under the Constitution, the President must withhold information from Congress where necessary to protect the national security. This statement was not intended to suggest that Congress should not receive national security information. You and I both know that, as a practical matter, the Executive Branch shares much national security information with Congress as a matter of course. Where disputes arise, a satisfactory accommodation can usually be reached, as in other areas. I expect and hope that this will continue to be the case. Nevertheless, the statement in the bill comment does reflect the longstanding position of the Executive Branch that, as a matter of constitutional law, there may be cases where the President determines that a national security secret must be withheld from Congress because of the damage to the national security that might result from disclosure. This is by no means a new position. It is fair to say that this has been the consistent position of the Executive Branch since 1792, when President Washington and his chief cabinet officers (Hamilton and Jefferson) encountered Congress' first request for information. The House of Representatives was then investigating the failure of General St. Clair's military expedition against the Indians. In connection with the investigation, Congress requested from the Executive Branch all "persons, papers, and records" pertaining to the St. Clair campaign. 2 Annals of Cong. 493 (1792). Secretary of State Jefferson's notes reflect that President Washington thereafter convened the Cabinet because it was the first request to the President for state secrets, and "he wished that so far as it should become a precedent, it should be rightly conducted." 1 The Writings of Thomas Jefferson 303 (A. Lipscomb ed. 1903). The President and the Cabinet concluded that "the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public." Id. at 304. The President ultimately decided to produce the requested documents. However, he directed Secretary Jefferson to negotiate an agreement with |