garded I think generally as a commitment. This is the Tripartite Declaration of the United States, United Kingdom, and France of May 25, 1950, and the relevant passage reads, and again this comes from the State Department: The three Governments take this opportunity of declaring their deep interest in and their desire to promote the establishment and maintenance of peace and stability in the area and their unalterable opposition to the use of force or threat of force between any of the states in that area. The three Governments, should they find that any of these states (i.e. the Arab states and Israel) was preparing to violate frontiers or armistics lines, would, consistently with their obligations as members of the United Nations, immediately take action, both within and outside the United Nations, to prevent such violations. Would you regard that as a commitment, a constitutional commitment? Professor BARTLETT. No, sir. I would regard it as a commitment of the President to ask the Congress for authority to act if this situation developed. What actually happened was that two of the three parties themselves violated the provisions of the statement. The CHAIRMAN. Do you think, under the present state of constitutional law in this country, that if a violation of the armistice or of the frontiers had occurred while this was still considered viable the President of the United States would have asked congressional authority before he took action? Professor BARTLETT. I would not have any basis for judgment on that, but I doubt it. The CHAIRMAN. You doubt it? U.S.-PHILIPPINE MEMORANDUM OF AGREEMENT The CHAIRMAN. I doubt it too under the recent developments. I think there is one other example. This one is carried under the general heading of "Provisions in Treaties, and Other Formal Agreements." This is a memorandum of agreement between Ambassador Bohlen and Foreign Secretary Serrano of the Philippines of October 12, 1959. I will read the part that I am going to ask you to comment on. The policy of the United States with regard to armed attack on the Philippines is contained in the Mutual Defense Treaty. Further the United States reaffirms the policy set forth in the statement of September 7, 1954 of then Secretary of State Dulles which reads as follows: "Under our Mutual Defense Treaty and related actions, there have resulted air and naval dispositions of the United States in the Philippines, such that an armed attack on the Philippines could not but be also an attack upon the military forces of the United States. As between our nations, it is no legal fiction to say that an attack on one is an attack on both. It is a reality that an attack on the Philippines is an attack also on the United States." The point I wish to raise is that first you have a treaty, which does not say an attack on one is an attack on both. Then you have a subsequent statement such as this this, I may say, has occurred in other cases, of other treaties, as you well know. What is the effect of that? Is this thereby incorporated constitutionally into the original treaty or not? Professor BARTLETT. I should think not. The original treaty only says that the United States would consider an attack on a signatory as a danger to its own peace and security, and then it would act to meet the danger in accordance with its constitutional process. Now, that is a very different thing from what you read just then, which is a broadening of this interpretation, which certainly broadens the executive authority. I see no constitutional basis for it. INTERPRETING USE OF PRESIDENT'S AUTHORITY The CHAIRMAN. In that treaty, as you properly say, it states: "Each party recognizes that an armed attack in the Pacific area on either of the parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes." But then when you come along and say you regard it as an attack upon yourself, the President has a different authority, even constitutionally to what is an immediate attack upon us directly than when it is simply an attack upon another country, doesn't he? Professor BARTLETT. It is very different. Of course, if we have made a defense treaty with the Philippines for the stationing of American troops there, as we have, and there is an armed attack on these troops, certainly the President would have the right to order those troops to defend themselves. The CHAIRMAN. Yes. Professor BARTLETT. In fact, they would defend themselves without waiting for a Presidential authority. This is where the power should end. SIGNIFICANCE OF GULF OF TONKIN RESOLUTION The CHAIRMAN. That is where it should end. Let me see if I have other questions. You have already discussed the joint resolutions on Formosa, the Middle East, and the Gulf of Tonkin. I had a discussion on the floor, in which some others participated, with Senator Russell as I remember it, about the significance of the Gulf of Tonkin resolution, and whether it can properly be regarded as a predated declaration of war, or a delegation of constitutional authority to declare war to the President? Professor BARTLETT. I think this is a subject that has been considered often in our history, as to whether a resolution of this sort would be as you say, a predated declaration of war. I feel that it depends on the wording of the resolution and the circumstances. You probably cannot absolutely make an authoritative statement on it. That is to say it would be dangerous to say that the Congress may never authorize the President to do something which might never occur in the future, but this I think is a very tricky constitutional issue, and this was the issue on which several Senators, a few Senators at least, objected to the Formosa resolution. It was precisely that. It was a direct delegation. There was no problem of meaning, but there were some Senators who thought that the Senate had no authority under the Constitution to delegate a matter of judgment of this sort to the President, and I don't know how you can settle that authoritatively. Senator COOPER. Will the Senator yield there for a moment? Senator COOPER. There is a factor in connection with the Tonkin Bay resolution which I submit for your consideration. The SEATO treaty provides that in the event of an attack upon a party, then at the request of the country attacked the other parties would consult and and each party would take action under its constitutional process. Would you consider that the resolution passed by the Congress was an exercise of its constitutional processes under the SEATO treaty, which delegated the powers to the President? I thought so, I must state. Professor BARTLETT. Well, my thought about that, Senator, was that the SEATO treaty really should be interpreted as a policy statement, that if an attack came, then there is a policy that is being laid down by treaty, and therefore the United States would have a moral obligation to fulfill the treaty policy, but it needs further action. You had to have another act. This was not a predelegation really to the President. The idea that it is a predelegation is what the Administration has held. This may be what the Senate was intending, but it cannot be deduced necessarily from the wording. That is all I can say about it. POSITION OF CONGRESS REGARDING BAY OF TONKIN RESOLUTION The CHAIRMAN. You have already commented upon the difficulty that the Congress encounters when it is requested to take almost immediate action, and it is not within our power to determine whether the circumstances which justify action are correct or not. To use the Tonkin Bay resolution-we were told about an unprovoked attack upon ships in the middle of the night in the Bay of Tonkin. There is no earthly way that the Congress can verify whether that was true or not. So you are in an impossible position to resist such a request. I am not sure this is exactly what I have in mind in Senate Resolution 151. That is a set of circumstances that I think is very difficult indeed. The only thing you can rely on there, which did not occur, was the restraint of the Congress itself in delay and discussion. We very clearly, in my opinion, acted too quickly, and I had a part in it, of which I am not very proud. But these other cases of commitments, as they are described in statements by officials and by the general public, it seems to me we could do something about them. They are not dependent upon a crisis as of any given moment. This is the area I am particularly interested in, although I do not like what happened in the Tonkin Gulf case. I do not know if that is not a different set of circumstances. Professor BARTLETT. Well, in the case of the initiation of the Tonkin resolution, the attack on the destroyer Maddox, presumably by North Vietnamese ships, and I think the Navy could determine that The CHAIRMAN. The Congress cannot tell. Professor BARTLETT. But they acted suspiciously and we fired on them and they fired back. Then there was a second attack on the high seas certainly. The President then made a counterstrike on his own authority. Then he asked Congress for the resolution. The country was excited, and American troops had been fired on, American ships had been fired on on the high seas, but we were already involved in the matter, so that this, I think, is an excellent example of the exact problem we are concerned about. The CHAIRMAN. In that case, of course, under the established principles you have already described, he has the authority as commander in chief, without reference to the Congress, to repel an armed attack, does he not? You do not question that. Professor BARTLETT. In fact the skipper of the ship would do it. He did not ask anybody's authority. The CHAIRMAN. Yes, he can do that. The resolution itself goes far beyond this, as you have already pointed out. Professor Bartlett, is there anything you would like to volunteer? They are calling a quorum, I see. We have that famous foreign aid bill up on the floor, and I suppose it is time for us to adjourn. Do you have anything you would like to add? Professor BARTLETT. No, sir. COMMITTEE WELCOMES FURTHER SUGGESTIONS ON SENATE RESOLUTION 151 The CHAIRMAN. You have been very informative. I think this is an excellent way to start these hearings, with this historical background. I do regret we did not have your statement before us when you read it, because it is very difficult to keep these things in mind, but we will read it and I know it will be the basis for much further thought by the committee. Again I reiterate that we would welcome any suggestions you may think of after you have returned home that pertain to this resolution-any suggestions as to what we can do. This is not one of our usual exercises. Not since I entered the Congress 25 years ago have we ever attempted any such examination. Therefore we are not too adept or too well organized here in the first instance. We will have some further hearings as you probably know, and it will be very useful if you have any suggestions. Professor BARTLETT. Thank you. If I can devise any I will send them to you. The CHAIRMAN. We appreciate very much your taking the time. I know it is a great burden to you to prepare such a thoughtful statement and to come down here, but I believe it is in the public interest. There is nothing more needed than the enlightenment of Senators, and if you can contribute to that, it will be a great public service. Professor BARTLETT. Thank you, sir. The CHAIRMAN. Thank you very much. The committee is adjourned until tomorrow at 10 a.m. (Whereupon, at 12:45 p.m. the committee was recessed, to reconvene at 10 a.m. Thursday, August 17, 1967.) U.S. COMMITMENTS TO FOREIGN POWERS THURSDAY, AUGUST 17, 1967 UNITED STATES SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, D.C. The committee met, pursuant to recess, at 10:05 a.m., in room 4221, New Senate Office Building, Senator J. W. Fulbright (chairman) presiding. Present: Senators Fulbright, Gore, Lausche, Symington, Clark, Pell, McCarthy, Aiken, Carlson, Mundt, Case, and Cooper. The CHAIRMAN. The committee will come to order. The committee today continues its inquiry into the nature, extent, and source of our country's foreign commitments as well as the broader question of congressional responsibility in the making of foreign policy. In preparation for these hearings the committee directed an inquiry to the Department of State as to what it regards to be the outstanding foreign commitments of the United States deriving both from treaties and from statements and agreements entered into by the Executive. I wish to insert in the record the reply of the Department of State dated August 15, 1967, until the title "U.S. Defense Commitments and Assurances." (The document referred to follows:) Hon. J. W. Fulbright, Chairman, Committee on Foreign Relations, U.S. Senate. DEPARTMENT OF STATE, Washington, D.C., August 15, 1967. DEAR MR. CHAIRMAN: This is in reply to your letter to Secretary Rusk of August 1, 1967 concerning Senate Resolution 151 "Relative to United States Commitments to Foreign Powers". You have asked in your letter for the Department's comments on the general subject of Resolution 151 and for answers to four specific questions. We believe the Department's general views on the subject of the resolution can best be presented in testimony before the Committee when hearings are held next week. In this letter the Department undertakes to answer the four specific questions. Last year at approximately this time, Secretary Rusk appeared before the Preparedness Investigating Subcommittee of the Senate Committee on Armed Services to discuss some matters relevant to the specific questions posed in your letter of August 1, 1967. Prior to his appearance, the Department provided that Subcommittee with a compilation of United States commitments and assurances consisting of provisions of formal treaties and agreements, and official declarations by the Congress, the President, the Vice President, and the Secretary of State concerning actions the United States would take if another country were the victim of aggression. For the convenience of the Committee on Foreign Relations, and to provide a context for the answers to specific questions posed in your letter of August 1, 1967, which appear below, I have attached an updated 49 |