the same period, 17 treaties were submitted to the Senate for approval of U.S. ratification and 17 treaties were approved by the Senate. Detailed statistics on Senate treaty action in 1976 can be found in the following table. At the start of the 95th Congress, there were 24 treaties pending before the Senate Foreign Relations Committee. In response to the Case-Zablocki Act, the Secretary of State during 1976 transmitted to the Congress 448 unclassified and 17 classified agreements. Thus, since August 22, 1972, when the act was signed, through the end of 1976, 1,333 agreements other than treaties have been transmitted to the Congress. Congressional attention was directed at the Case-Zablocki Act in 1976 in response to a report by the Comptroller General that examined the implementation of the act relative to U.S. agreements with the Republic of Korea (see Congress and Foreign Policy-1975, pp. 49–50). In addition, an amendment to the Case-Zablocki Act proposing that any agency or department of the Government transmit all international agreements to the Department of State within 20 days after they enter into force was adopted by the Senate on June 11, 1976, during its consideration of S. 3439, the International Security Assistance and Arms Control Export Act. This amendment was dropped by the conference committee, with the understanding that separate legislation on this subject would receive early consideration in the Congress. "In the meantime," the report continued, "it is the hope of the conference that the executive agencies reexamine their procedures with a view to making the required reports more promptly." 3 LEGISLATIVE PROPOSALS House hearings on executive agreements 2 The Subcommittee on International Security and Scientific Affairs of the House International Relations Committee held six sessions of hearings during June and July 1976 on various legislative proposals to provide for congressional review and possible disapproval of executive agreements. Statements were heard from 11 witnesses, including 2 representatives of the executive branch and the Chairman of the International Relations Committee who sponsored H.R. 4438, one of the 2 H. Rept. 94-1272, p. 60. 3 See Congress and Foreign Policy-1975, pp. 45-47, for provisions of key legislative proposals before the 94th Congress. U.S. Congress. House. Committee on International Relations. Subcommittee on International Security and Scientific Affairs. Congressional Review of International Agreements. Hearings. 94th Cong.. 2d sess., June 22, 23, 29, and 30, July 20 and 22, 1976. Washington, U.S. Government Printing Office, 1976, 416 pp. See section entitled Summary of the Major Points Developed During Hearings, pp. 317-382. bills being considered. The hearings were organized so as to focus attention on one of these major issues during each session: -The intent of the framers; -Executive agreements-in practice and effect; -Definitions: National commitment and executive agreement. According to Representative Zablocki, chairman of the subcommittee, a central issue provoking the need for legislative action was the restoration of balance to the constitutional processes that provide for legislative and executive cooperation in foreign policy formulation. Chairman Morgan of the full committee observed that the increased use of executive agreements since the end of World War II and the move away from the use of treaties as provided in article 2 of the Constitution had created three problems: (1) Agreements have been made without adequate notification of Congress; (2) Congress has been given almost no opportunity to influence the contents of executive agreements, including those for which it is later expected to appropriate funds; and (3) The authority of the President to make certain types of such agreements remains subject to dispute; he has cited vaguely worded prior acts of Congress as authority to conclude some agreements. Another area of strain between the legislative and executive branches was identified as the lack of agreement on definition of such basic terms as "national commitment," "executive agreement," and "treaty." Another problem for Congress has been continued executive branch opposition, on constitutional grounds, to the use of the concurrent resolution as a legislative procedure for blocking the entry into force of executive agreements. The legislative proposals under consideration by the subcommittee contained such provisions. This issue was raised, without resolution, at each session of the hearings (see section on legislative veto in foreign affairs legislation). On the last day of the hearings the subcommittee received lengthy statements from the State Department's Legal Adviser, Monroe Leigh, and from the Assistant Attorney General in charge of the Office of Legal Counsel, Antonin Scalia. In addition to opposing the use of the concurrent resolution, both witnesses indicated that the key bill under consideration, H.R. 4438, raised other constitutional and practical problems and, in their view, encroached upon the independent legal authority of the President to conclude executive agreements. Furthermore, agreements in the areas described as national commitments were identified by Scalia as "generally authorized by legislation and controlled by laws enacted by Congress." According to Scalia, "at least in the great majority of the situations this bill would cover, the ordinary legislative process is an adequate mechanism for congressional control, and it is not necessary to resort to sweeping devices such as those contained in H.R. 4438, which raises serious constitutional questions." While there was not sufficient time before adjournment to digest all of the information, viewpoints, and recommendations expressed so that the subcommittee could recommend a revised bill, the hearings record was published late in 1976, and the introduction of a revised bill, incorporating some of the recommendations made during the hearings, is anticipated in 1977. Senate hearings on executive agreements During 1975 the Separation of Powers Subcommittee of the Senate Judiciary Committee held hearings on two Senate bills providing some form of congressional review of executive agreements (see Congress and Foreign Policy-1975, p. 48). These hearings were published in 1976.5 However, no further legislative action was taken on the bills in the 94th Congress. The Subcommittee sought, instead, to clarify implementation of the Case-Zablocki Act, with respect to transmittal of "a half dozen" intelligence cooperation agreements. No decision had been made by the Legal Adviser's office at the State Department between July 1975 and September 1976 as to its position on whether any of these agreements were international agreements within the meaning of the Case Act. However, according to the subcommittee's annual report, "Executive branch officials have initiated discussions with Congress to establish procedures for the reporting and submission of intelligence agreements as required by the 1972 law." The subcommittee is "continuing to pursue these issues to ensure that all executive agreements are submitted pursuant to the law, and that, if necessary, modifications of the law are made to accomplish that end." & Senate resolution on treaty powers On July 21 and 28, 1976, the Senate Foreign Relations Committee held hearings on Senate Resolution 486, a Treaty Powers Resolution originally introduced by Senator Clark on April 14, and reintroduced with several slight modifications on July 1, 1976.7 The purpose of the resolution was to insure that no international agreement constituting a treaty would be implemented by the Senate without the Senate's prior advice and consent to ratification. The intent of the resolution was to restore Senate treaty prerogatives, which had been circumvented by the increased use of executive agreements. The resolution defined as a treaty "any international agreement which involves a significant political, military, or economic commitment to a foreign country." The resolution stated the sense of the Senate that in determining whether an international agreement was a treaty under the definition of the resolution, the President should, prior to and during the negotiation of such agreement, seek the advice of the Committee on Foreign Relations. It provided that the Senate may by resolution express its opinion that such an agreement not submitted as a treaty constitutes a treaty and should be so submitted. In the event that such a resolution were adopted by the Senate, it would not be in order for the Senate to consider any legislation or any report of a committee of conference that authorized or provided budget authority to implement U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Separation of Powers. Congressional Oversight of Executive Agreements--1975. Hearings, 94th_Cong., 1st sess., on S. 632 and S. 1251; May 13, 14, 15, July 25, 1975. Washington, U.S. Government Printing Office, 1976, 505 pp. U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Separation of Powers. Separation of Powers; Annual Report, S. Rept. 94-1381, 94th Cong., 2d sess. Washington, U.S. Government Printing Office. 1976. pp.2-4. 7 U.S. Congress. Senate. Committee on Foreign Relations. Treaty Powers Resolution. Hearings, 94th Cong.. 2d sess.. on S. Res. 486, July 21 and 28, 1976. Washington, U.S. Government Printing Office, 1976, 127 pp. the agreement. On July 1, when he introduced a revised resolution, Senator Clark stressed that the resolution was a simple Senate resolution, without the force of law, and that it stated the sense of the Senate and would establish internal Senate procedures that would bind no one but the Senate. The executive branch, on June 2, 1976, submitted a legal memorandum which elaborated four major objections to the Treaty Powers Resolution. According to State Department Legal Adviser Monroe Leigh and Assistant Secretary of State for Congressional Relations Robert J. McCloskey, the first objection was that the resolution. granted to the Senate an aspect of treatymaking not contemplated by the Constitution in that it would give that body the right to declare what constitutes a treaty and to designate an international agreement as a treaty. Secondly, the procedure permitting Senate designation of treaties would appear to conflict with the President's constitutional position as sole negotiator for the Nation in international relations. The executive branch has maintained that the choice of treaty or executive agreement is within the "executive power" function of the President as defined in article 2 of the Constitution. Thirdly, the executive branch maintained that Congress may not, either by statute or resolution, interfere with executive agreements concluded under authority of the President's independent constitutional powers and lastly, it argued that the section permitting the Senate to designate an executive agreement as a treaty was open to four alternative interpretations, all of which raised constitutional questions. While Senate Resolution 486 was not reported out of committee, its sponsors expect to introduce in 1977 a revised version that will respond to some of the views expressed during the hearings. CONGRESSIONAL CONSIDERATION OF BASE AGREEMENTS Congress has for several years expressed concern over the manner in which the executive branch entered into agreements providing for U.S. use of bases in other countries and for defense cooperation with other countries. Specifically, some Members of Congress have urged that such agreements be submitted to the Senate as treaties or referred to the Congress as agreements to be approved by joint resolution, arguing that Congress should be included in a process that would commit the United States to spend extraordinary sums of money or potentially commit the United States to become involved in conflict abroad. During 1976 the United States signed two base agreements. The Treaty of Friendship and Cooperation With Spain was submitted to the Senate for consideration as a treaty. The agreement with Turkey was submitted to the Congress as an executive agreement with a request for multiyear authorization. Still under negotiation at the end of the 94th Congress were agreements with Greece and with the Philippines (see pp. 81-84 for discussion of the substance of these agreements). Spain During 1976 the Senate approved U.S. ratification of the Treaty of Friendship and Cooperation With Spain and Congress provided for implementation of that treaty, which had been signed on January 24, 1976, and transmitted to the Senate on February 18, 1976. While the primary purpose of the treaty was to provide for continued U.S. use of base facilities in Spain, the overall framework of the treaty aimed at creating a new relationship between the two countries. Total U.S. assistance over the initial 5-year period of the treaty was tabulated at $1.2 billion. During the consideration of the treaty two issues, whose resolution could serve as precedents for future base agreements, quickly surfaced as major areas of concern in Congress. First, the executive branch, in submitting the treaty to the Senate, suggested that the Congress need not utilize the authorization process prior to appropriating funds required by the treaty. While there are precedents for the use of a treaty to authorize appropriation of funds, and although the authorization process is one generated by House and Senate rules and tradition rather than by the Constitution, the chairman of the House International Relations Committee, in a letter to the chairman of the Senate Foreign Relations Committee, observed that "the Committee is aware of no precedents involving the vitally important and expensive area of security treaties." This proposed practice would have had the effect of denying to the Committee on International Relations, which in the House bears the primary oversight responsibility for U.S. foreign relations, an opportunity to legislate authorizations involving substantial foreign policy commitments. This practice was viewed as particularly serious because it denied to the committee and to the House an opportunity to review funding guaranteed by the treaty within the foreign affairs/international relations context. According to a statement by Representative Abzug in House International Relations Committee hearings on June 16, 1976 By acquiescing automatically to the authorizing of these funds, we would be abdicating our responsibilities to review military aid programs for Spain with the same critical and careful scrutiny that we give to bilateral security supporting assistance programs which are regularly contained in annual authorization and appropriation bills. The second issue was linked to the first in its presentation by the administration and in its resolution by Congress. While accepting the fact that Congress might wish to adopt authorizing legislation, the executive branch urged most strongly that Congress authorize funds for the entire 5-year period at one time. State Department spokesmen indicated that congressional failure to authorize and thereafter appropriate the amounts required by the treaty could at the most be regarded as a violation of the treaty and at the least lead to renegotiation of the treaty. Administration spokesmen took the position that the treaty, once ratified, commits the U.S. Government, including the Congress, to provide the funds identified therein. Many in Congress, however, took the position expressed above by Representative Abzug that such assistance required regular annual review. The Foreign Relations Committee and the Senate, in response to these concerns, approved a resolution of ratification that provided, first, that any extension of the treaty beyond the initial 5-year period shall require the further advice and consent of the Senate. Further, the Senate declared that the funds required by the treaty would be made available only after the normal procedures of the Congress had been followed-that is, the process of prior authorization and annual appropriations. The funds also would be subject to the provisions of |