commitment could not force a succeeding Congress to implement it; it was a national commitment, but it had limitations. It was a commitment to consider that an armed attack on one of the signatories of the treaty would be considered an attack upon the United States, and the United States would act to bring about security in the area in any way it deemed necessary, so that when another Congress met, say 10 years later, the other Congress would have the right and the authority to decide how this commitment was made, and how it should be implemented, even though they might recognize that a treaty within its treaty time, and within its treaty limits, was a valid commitment. This is a very different thing from someone in a press conference or some minor official of the Government making statements about commitments which are not based on any such solid fact as, let's say, the North Atlantic Treaty. The CHAIRMAN. I think it is fairly clear then that a commitment arising out of a treaty that has been approved by the Congress is one thing. But how is this distinguishable from the statement of policy by the President concerning, to take a recent example, the territorial integrity of all the states in the Middle East? This is simply a statement, without having been reduced to any kind of formal agreement. Is this a commitment? Professor BARTLETT. No, sir, I would not consider it a commitment of the United States. I think the Congress might say in either a concurrent resolution, which could be an expression of its opinion, or a joint resolution that the United States would undertake a policy or that it was the policy of the United States to protect, or whatever it wished to say about the integrity of the states of the Middle East, but this would be a policy statement, and then when the time came for the implementation of the policy, the Congress should be consulted, not consulted only but should be asked to act, if there is any proposal to implement the policy. The CHAIRMAN. It seems to me the problem arises because of our departure from the constitutional provisions of the Congress having the power to initiate and declare war. If we accepted the President as having the kind of power described by Secretary Acheson, then it follows that a statement such as this becomes a commitment in very much the same way as a treaty commitment. Is that not, as a factual matter, true? Professor BARTLETT. That is what is happening. The CHAIRMAN. Isn't that what is happening? USE OF THE WORD "AGGRESSION" The CHAIRMAN. I have many other questions but I want other members to participate. There is one last question along that line, however. In a recent statement made by the Secretary of State, before the Senate Preparedness Subcommittee on August 25 of last year, said: he No would-be aggressor should suppose that the absence of a defense treaty, congressional declaration, or U.S. military presence grants immunity to aggression. It is a rather broad statement, and what are the constitutional implications of such a statement? Professor BARTLETT. I have not had time to think about it, but my first reaction would be that it is one of the utterly imprecise statements, because it might mean that the President would, in the case of what he might call aggression, come to the Congress and ask for a declaration of war against the aggressor. It might mean that the President intends to act on his own in the use of the armed forces against what he considers to be an aggression, so it leaves the whole matter in an utterly unknown state. It does not mean anything to me. The CHAIRMAN. Do you think the word "aggression" is sufficiently precise to be an acceptable basis for assuming any kind of obligation? Professor BARTLETT. No, sir. I think the word "aggression" should be used with great restraint. There have been attempts to define "aggression." There was a committee under the old League of Nations to work out a definition of "aggression," but it was difficult to do it, and I think that you get into semantic problems trying to define "aggression." The CHAIRMAN. Did they do it? Professor BARTLETT. It is a very different matter in actual experience. I mean it has not been a difficult matter. It was not difficult for the League of Nations to decide that Japan was the aggressor in Manchuria. It was not difficult for them to decide that Italy was the aggressor in Ethiopia. In both cases armed forces prepared, deliberately prepared, and invaded the territory of another nation. And if you have deliberate invasion of territory such as North Korea against South Korea in 1950, I think the word "aggression" can be used. You can see what is happening. But there are so many other situations that are not so precise, so exact, so clear, where aggression is used. You might use the word "aggression" when Russia placed missiles in Cuba. This was an aggressive act because it endangered the United States, and so that word sort of slides off into imprecision. I would think it ought to be confined to direct military invasion, and even then I would be very cautious in using it. The CHAIRMAN. Senator Hickenlooper. PRECISION IN STATEMENTS RE INTERNATIONAL RELATIONS Senator HICKENLOOPER. Professor Bartlett, I am sorry that we did not have copies of your statement so that we could follow it a little more carefully as you made it. My own memory and notes are not sufficiently satisfactory to remember all the details of the statement at this time. But one thing occurs to me in connection with your statement. You keep referring to precision in statements in international relations. Do you think that our administrative executive departments should be precise, in every detail, in all their statements with regard to international affairs? Do you think that is essential? Professor BARTLETT. Well, there are traditions, Senator, with regard to diplomacy that exactly the opposite is the wise thing, always to make a statement that can be interpreted the way you want it to be in some other situation in the future, that it be utterly flexible. Senator HICKENLOOPER. I take that to mean, as we say in our circles here, to fuzz it up a little bit in language so that you can interpret it in various ways while you are thinking it over and looking at the future eventualities? Professor BARTLETT. Yes, sir. I think that is true of diplomatic language. I think it is true of some of the resolutions that have passed in the Congress intentionally, it may be oblique, or that there is a feeling that something needs to be said, and it has to be phrased in a certain way in order to get approval, in order that enough people will support it. But this, as far as foreign policy is concerned, leaves the matter in a very unhappy situation. Senator HICKENLOOPER. Would it be any happier if we were utterly precise in every detail, paragraph, sentence and clause in our statements today and then, next week, found that we were very wrong about what we had said, that we had made some mistake, and that events as they developed changed the whole picture, making our former precision rather embarrassing on occasion? Professor BARTLETT. I do not know that I have an answer to that. I think in general that there probably is not anything that is absolutely precise, that you cannot find some way around or some analysis of it that would bring it into line with what you want, but granting that absolute precision may not be quite possible, I would think that in the realm of foreign affairs, in dealing with legal things, legal commitments, legal action, that one of the great reasons for the disorders that exist in a good bit of our foreign policy is the lack of this precision in legal authorization, so that it can be taken by the Executive to mean whatever the Executive wants it to mean. DEFINING LIMITS OF PRESIDENT'S AUTHORITY Senator HICKENLOOPER. It just happens that I agree with you in the main on these things, but I would like to get some precision in this situation myself. Do you have any formula for defining the limits of authority of the President or the precise obligations of the Congress in this field? I think we are all searching for that if we can find it. Professor BARTLETT. Well, it is obviously hard to make a definition of the exact authority of the President to use armed forces, which I was sticking to pretty closely, and the Committee on Foreign Relations found that to be true on the occasion that I mentioned, in the report on the treaty of 1949. But I think it is possible to have greater precision, not absolute. I am not really advocating absolutes here of any kind, but rather the broad gaps that have occurred between the time when every President felt that if he was going to use the armed forces, was going to fight, he was going to send people into battle, other than for a few specified things under which there was general authority such as suppression of piracy, then he needs to come to the Congress and explain the reason for the use of these forces and ask for authority, and the Congress passes resolutions stating precisely that the President is authorized and empowered to do certain specific things, and generally these specific things had an end. It would be a war that would come to an end and when peace was made then these war powers were ended, or the resolution might have in it a time limitation. You had exactness. The President then knew what he had a right to do. The Congress knew what it had authorized him to do. The Constitution had been fulfilled. Now, when you have a resolution, such as the Gulf of Tonkin resolution, or the Cuba resolution, or the Middle East resolution, in which you do not find these words "empowered and authorized" to do a certain thing, but a rather vague statement that the United States intends to do something, or the President is empowered to do something as commander in chief, which implies that this is a substantive power, which certainly the framers of the Constitution never intended it to have, then the whole thing becomes out of order. It is the other extreme that I worry about. Now, you were really asking me questions concerning something in the middle here, where maybe it is difficult to decide whether under reasonable interpretation of the Presidential authority he could use the armed forces, and under different times in the world or on different occasions. It is this middle ground that I fail to be exact about. Senator HICKENLOOPER. I asked the question because it is my feeling that you were critical of the imprecision of certain actions that we have taken in the past and I really wanted to know if you had a formula that would cure that. That is what we are searching for. Professor BARTLETT. I do not know that you have a formula that would do it, but I would think that a return to the form of precise authorization to the Executive Senator HICKENLOOPER. In each case? EXECUTIVE AGREEMENTS NOT AUTHORIZED BY CONGRESS Senator HICKENLOOPER. I see. You mentioned, I think in response to a question a moment ago about the matter of commitments, that you believed a commitment in the main probably was better based upon action of the Congress than by a certain declaration or a certain agreement of some kind. Now, what about executive agreements with other countries, that are not necessarily authorized by the Congress, for instance. Do you consider those commitments? Professor BARTLETT. I think there are several kinds of executive agreements. There are executive agreements that are authorized by the Constitution, which the President may have as commander of the armed forces when Congress has declared war; the executive agreements that are authorized by special acts of Congress, and executive agreements authorized by treaty. Now, if the President does not have authority to make a binding executive agreement in one of these three categories, I think he is on very dangerous ground, and we are on dangerous ground in permitting him to do it. Senator HICKENLOOPER. I think we have some cases where the President, without necessarily basing it on a state of war or anything else, has made commitments. I refer specifically to the letters between President Franklin Roosevelt and Mr. Litvinov which were later given sanctity, I believe, by the Supreme Court. Those certainly were commitments. There were a lot of people who disagreed with them, or dis agreed with the legality of the situation, but the Supreme Court decided it the other way. Professor BARTLETT. They were in fact very strange in that they were not in the form of an executive agreement but in the form of an exchange of notes between the President Senator HICKENLOOPER. It was an agreement between one executive and another. Professor BARTLETT. That is right, or a representative, and then the Supreme Court held that since the President had a right to receive ambassadors or ministers, he might have the right to set the conditions under which these could be received, and under the right to set the conditions under which they could be received, the right to establish such things as he did with regard to the Litvinov assignment which the Court held took precedence over a statute of the State of New York. You get therefore a line of argument from a right to a right that gets to be pretty extensive. PRESIDENTIAL MEETING REGARDING PANAMA TREATIES Senator HICKENLOOPER. You mentioned also-I apologize for jumping around here, but I did not have a chance to read your statementsomething about execution of the treaties. If I may divert a little bit from the main purpose of this hearing, but I think it is collateral to it, we have the question of a treaty coming up with Panama, or rather three treaties. The matter has not been submitted to Congress yet or the Senate. I notice in the paper the President proposes to meet with the President of Panama here in the next few days or the next few weeks, and sign the treaties. Now, I think it is fairly well accepted, unless the Supreme Court changes the provision, that that treaty cannot go into effect until the President receives the advice and consent of the Senate, but in what capacity is the President of the United States meeting with the President of Panama and signing a treaty? I know it has been done in the past, but here is the chief executive of this country and the chief executive of another country signing a treaty before our constitutional process has been accomplished; what does this mean? Professor BARTLETT. Senator, I think in this instance there would be no real cause for alarm. Senator HICKENLOOPER. I am not alarmed by it. Professor BARTLETT. The President would normally have treaties signed by his representative, his authorized representative. Senator HICKENLOOPER. Yes. Professor BARTLETT. And he has a perfect right to sign the treaty. Then as you know he has the duty to submit it to the Senate for consideration. The only problem here I think, if I may make a guess, is that the President is using a little propaganda. The CHAIRMAN. What? Senator HICKENLOOPER. Propaganda. But when is the treaty "made" in the language of the Constitution? Professor BARTLETT. I think the treaty is made when it has been advised and consented to, ratified by the President and proclaimed. Senator HICKENLOOPER. It is not made, then, in your view, when the President of the United States and the President of Panama sign it? 83-230-67-3 |