Professor BARTLETT. I would not say so.

Senator HICKENLOOPER. Prior to submission or prior to receiving advice and consent of the Senate?

Professor BARTLETT. No.

Senator HICKENLOOPER. In other words, the process would be to receive the advice and consent of the Senate if possible, then return the treaties to the President, and send notification of the ratification by our Government to the other government.

Professor BARTLETT. It is not even made, Senator, after the Senate has advised and consented to it. The President can still decide that he does not want it.

Senator HICKENLOOPER. That is right. It is the exchange of documents after that happens.

it.

Professor BARTLETT. Once it has been ratified.

Senator HICKENLOOPER. Yes.

Professor BARTLETT. And exchanged and proclaimed them we have

Senator HICKENLOOPER. Yes, I see. I think that is all at this time. Thank you very much.

The CHAIRMAN. Mr. McCarthy.

HOW CAN TREATIES BE TERMINATED?

Senator MCCARTHY. Are you prepared to give us any recommendation for some kind of termination or reconsideration of treaties that are agreed to without any terminal date now? They seem to run on forever.

Professor BARTLETT. That is right, sir. This seems to be a tendency for them. The treaty of alliance that the United States made with France was a permanent treaty. It had no terminal date. The North Atlantic Treaty may be reconsidered after 20 years. The treaties we have with the Far East do not have a terminal date. They may be terminated at any time if we give notice.

I do not know that I have any wisdom on this subject.

Senator MCCARTHY. They can be terminated by executive announcement of termination but there is no way in which the Congress could act.

Professor BARTLETT. Congress has acted to terminate a treaty. It acted to terminate the treaty of 1778 with France, the Treaty of Alliance. But the President did not consider this as a termination, and he negotiated a new treaty which took its place.

As you know, some treaties provide that they may be terminated,

et cetera.

Senator McCARTHY. Yes.

Professor BARTLETT. I would think that it seems to be a little customary these days for treaties to run for a certain number of years, and then to continue unless they are terminated, and it is a little bit more difficult to terminate them than if the treaty provided that they could run for a certain number of years, and would end unless they were renewed. These two things are quite different. I would prefer myself that they had a termination date and would end unless they were renewed.

Senator MCCARTHY. Even though you run the risk that conditions may be critical at the time of the termination, it is a better policy to put in a termination date?

Professor BARTLETT. I would think so.

Senator MCCARTHY. Make a reasonable projection?
Professor BARTLETT. That is right.

HOW CAN CONGRESS REASSERT ITS AUTHORITY?

Senator MCCARTHY. Do you have any other suggestions as to how the Congress might reassert its authority to exercise its responsibility over foreign policy? As you have indicated, the Executive branch has pretty well taken over, not just the initiation but the determination of policy.

Professor BARTLETT. Senator, I think I have no good answer to that question except one that would be a very radical type of answer; namely, that the Senate may need to do something rather drastic on some occasion to make sure that its authority is understood and needs to be respected. It may be that the Senate will have to say to the President on some occasion, "We will not stand for this any longer."

Senator MCCARTHY. How can we establish a better relationship with reference to respect for the sharing of power and responsibility over foreign policy?

Professor BARTLETT. Certainly this is what everybody would propose, a good relationship ought to exist, when both branches realize the limitations on their proper authority.

Senator MCCARTHY. Do you think the situation is such that it requires a drastic action rather than a kind of gradual reassertion of our claims?

Professor BARTLETT. Well, I am a gradualist and I would rather say a gradual process would be better, but it has gone so far in the other direction, and it is so easy for the Executive to assert the right to determine as well as the right to execute policy that I am not sure how effective a real gradual development will be, but nevertheless in my statement I said that I hoped this resolution before the Senate would be a turning point of a very gradual process.

DESIGNATION OF A COMMITTEE TO PASS UPON EXECUTIVE DECISIONS

Senator MCCARTHY. Do you think it would be either constitutional, or desirable, or both, if the Senate particularly were to designate the Foreign Relations Committee or some other committee to pass upon executive decisions that might be reasonably defined in somewhat the same way as other committees do now? We do have committees that pass upon executive decisions, such as domestic military construction, for example. The executive decisions are approved by the Armed Services Committees of the House and Senate, at which point, with that approval, the construction may go ahead. Do you think it would be constitutional to work this out? This would be kind of a quasiCabinet relationship I assume. Do you think it would be constitutional to make that kind of delegation of responsibility on the part of the Congress and on the part of the Senate?

Professor BARTLETT. I would not want to pose as a constitutiona lawyer here.

Senator MCCARTHY. Everybody is a constitutional expert.

Professor BARTLETT. I would be a little hesitant to say what would be constitutional.

Senator MCCARTHY. I am thinking specifically of the problems we have with the foreign aid bill at the present time. The question is whether or not the Executive can go into another country with a development loan program or technical aid or let's say, an arms sale or arms agreement? Would it be in order to say, before you can do, that you have to have not just the decision by the State Department and the Pentagon but also clearance by either a joint committee, or by separate committees, of both the House and the Senate or possibly just by a committee of the Senate, if it concerns a foreign policy commitment which probably is one which the House should not share. Professor BARTLETT. I see no reason why it could not be perfectly constitutional. In fact, Congress has done this in other ways in other

areas.

Senator MCCARTHY. We have done it on domestic issues.

Professor BARTLETT. That is right, and prescribed that certain conditions shall prevail if authority exists. In fact, the resolution that the Senate passed with regard to the armed forces in 1961 had something, had conditions attached to what the President should do. This did not become a joint resolution.

Senator MCCARTHY. There is no constitutional problem at all? Professor BARTLETT. No, I see none, as long as it is authorized by Congress, and it does not usurp the power of Congress or the President. Senator MCCARTHY. I gather you think we have enough knowledge to pass upon these problems as well as the State Department? Professor BARTLETT. Yes, sir, I think so.

Senator MCCARTHY. I have no more questions.
The CHAIRMAN. Senator Carlson.

WHAT IS A "LIMITED WAR”?

Senator CARLSON. Professor Bartlett, I want to commend you for the very excellent and thought provoking statement that you have made here this morning to begin these hearings. I think it is most timely. Historically it is very interesting and I shall not get into it except to mention one of the reasons that the Executive often uses the powers of this Nation by sending our troops to foreign countries. I was particu larly interested in your comment as to why President Woodrow Wilson decided that military force should be used against Mexico. These are the President's words as you quote him, "in order to enforce respect," which certainly did not seem much of a reason to start sending troops down into Mexico. I well remember that particular period in our history.

You went on to mention several others. It seems as though it does not take much of an excuse for the Executive to move our troops around in the various countries for various provocations or at least what we like to call provocation.

I was interested in this. You used the term "limited war." I have not found it in your text, but I did hear you use it. We seem to have arrived at a place in our Nation's history where we have limited war

That I think would be true in Korea; it is probably true in Vietnam. Do you have any definition for a limited war? What is the position of Congress to be in a limited war?

Professor BARTLETT. Sir, I think there is no definition of a limited war. I said that the so-called quasi-war with France or the naval war with France that we had in 1798-99 might be called a limited war today in the sense that it was not a declaration of war against France, but the Congress authorized the President to use the Navy to protect the American ships within areas designated. Two resolutions by Congress: one confined the action to areas near our shores and in our waters; the other one expanded it to the Atlantic. The President had the authority to use the ships, the Navy, for the precise purpose of protecting American commerce in an area, and these ships could destroy ships that attacked them, but there was not retaliation in the sense of bombing coastal towns of France. It was limited war in the sense that it was the use of the armed forces for a purpose that was short of a declared war against the Nation. This was, I think, important as the instance early in our history which set a precedent.

PRESIDENT'S AUTHORITY TO USE THE ARMED FORCES

Senator CARLSON. I think you mentioned in your statement that the President can use the armed forces as he sees fit. How far does that go?

Professor BARTLETT. Under extreme statements of broad executive power there seems to be no end to it, because we have used them against countries as well as against people who committed depredations, which was the old rule of protecting lives or retaliation in primitive areas. Senator CARLSON. There is no question, is there, that the President does have the power and authority to use troops to protect life and property of our own citizens?

Professor BARTLETT. I think that has been sanctioned by time and usage. It depends on how far you expand it. When Mr. McKinley sent troops into China, this was the purpose of expedition, but they remained to do other things, and the Senate got quite disturbed by it. But as far as the President was concerned, it was always protection of lives and property. There must be some kind of a reasonable end to this. If it ends as it did in Haiti, the complete occupation and control of a military government, then it extends beyond life and property. This was true in the recent sending of troops to the Dominican Republic in 1965.

U.S. INVOLVEMENT IN RECENT CONGO SITUATION

Senator CARLSON. Of course, that gets us into the position where our Nation becomes involved. You mentioned the concern of Congress with some of these incidents. We had a very recent incident in which the President ordered three military aircraft into the Congo. I know it was of concern to some Members of the Congress, at least, as to how far that might go, what could happen, and the danger of that. It was quite generally discussed. There is the question of whether he might have had the authority. It is a question of what might happen in case there was some situation that would develop which could require serious action; for example, as what happened in the Mexico situation you

mentioned. The President went in "to enforce respect" and the next thing we were in; we had what you call "hot pursuit." We had troops in there. That is always the danger it involves.

I realize it is very difficult to define this area. But I sincerely hope that these hearings we are starting will develop some sort of a basis for an understanding between the Executive and the Congress because there seems to be a very definite erosion of the powers of Congress and the actions that should be taken by Congress, and because of the Korean situation. While you call it a limited war-and Vietnam is a limited war-it is true that both of them were really large operations, and it seems to me Congress should have some very definite commitments on those.

Thank you very much.

The CHAIRMAN. Senator Mundt.

OBSERVATIONS ON THE GLASSBORO SUMMIT CONFERENCE

Senator MUNDT. I, too, Professor Bartlett, want to congratulate you on presenting a great, valuable historical analysis of some of the steps by which Congress has been losing its authority and the Executive has been acquiring new authorities in this field of foreign policy.

I made a prediction-and I am not sure I am a very good prophetshortly after the Glassboro summmit conference in New Jersey between Mr. Johnson and Mr. Kosygin, that I felt its biggest difficulty was the fact that it possibly shocked a great segment of our American people into realizing the validity of what several commentators said during the course of the conference-and some statement was made by the State Department-to the effect you must not expect too much from this conference. Don't get too optimistic because Mr. Kosygin, representing Russia, does not have the authority to commit his nation that President Johnson has. Now this is kind of a shocking statement, when you stop to realize that Mr. Johnson was representing a popu larly based government, based on the rule of the people, and Mr. Kosygin was representing a political monopoly. I wonder if you would care to comment on that?

Professor BARTLETT. Sir, my comment I think would be fairly obvious. I was shocked by it myself. Not only was it in the press but some of the very highly respected commentators-news commentators that have lots of influence and thousands of people listen to and respectmade this sort of statement, and I was interested to see whether any body contradicted it in the Congress or in the press, and I found no contradiction.

Senator MUNDT. I had the same reaction.

Professor BARTLETT. And I just think that it is an example of what we have been talking about here today, the kind of gradual growth of a repetition or affirmation that the Executive authority is substantive, that it gives the Executive power to do whatever he wants to do, or that the commander in chief position is substantive other than the direction of the armed forces, once the Congress had decided what they shall be used for. Both of these things have been used to expand constitutional interpretation of executive authority directly in contradiction to what the Constitution provides rests exclusively with the Congress.