The Congressional Presence in Foreign Relations

In the field of foreign policy the constitutional powers delegated under Articles I and II to the Congress are keyed to the phrase "advise and consent" However, in America's greatest moments of external crisis the emphasis has been on "consent." The exercise of the right to advise has, on many occasions, been less than welcome to the executive recipient of Senatorial recommendations.

No sooner had President Washington launched the nation's first Administration than he found the advice of the Congress so abusive that he strode from the Senate chamber swearing "never to return to this place." And Secretary of State John Hay summed up his bitter experiences at the hands of the legislative body in the late nineteenth century by observing: "A treaty entering the Senate is like a bull going into the arena. No one can say just how or when the final blow will fall. But one thing is certain- it will never leave the arena alive."

Much has changed in the intervening period. A "strong presidency" has evolved into a national institution welcomed in this century by most Americans. That welcome is a response to the quickened pace of communications and the apparent need for the country to act immediately and with decisiveness in the ever recurring crises of contemporary foreign policy.

The American people began to learn in Theodore Roosevelt's day to focus their attention on the White House as the seat of national power and policy in foreign affairs. The potential for this attitude to flourish has of course always existed in the constitutional powers granted to the President. His role as Commander in Chief and his mandate to "conduct the foreign policy of the United States" have from the beginning carried the possibility for an assumption of authority and an exercise of power that exceeds the principle of the equal but separate powers of the three branches of government

Only in this century, however, has that Presidential potential grown to such dramatic proportions that it threatens to precipitate a crisis in constitutional relationships. For the right to advise as well as to consent implies a two-way relationship. The constitution-makers in Philadelphia, on the basis of their own experience with the British Crown, wished to assure a reciprocal and consultative function affecting the Legislative and Executive Branches. Yet a few short years later, the problems of the second half of the twentieth century were foreshadowed in the reaction of President Washington to the Senate in his first and only visit there.

Other Presidents since have given evidence of agreement with our country's first Chief Executive. The failure of President Wilson to include Republican members of the Foreign Relations Committee in his deliberations on the Treaty of Versailles led, finally, to the destruction of the League of Nations and in some degree perhaps to the outbreak of the Second World War. Senator Lodge's antipathy to the Treaty may or may not have been changed by a Wilsonian overture. The question of motivation is not critical. The point is that the Senate was not asked to advise and, tragically, it did not consent. In the years that followed we protected ourselves from what Churchill described later as "the gathering storm" by insulating ourselves with the illusion of "normalcy." Today, those of us who exercise high executive and legislative power can no longer rely on such an illusion. The most ill-informed citizen knows that any new storm carries with it the threat of nuclear war.

II

Television so charges responses that a recent book is entitled "The Living Room War." In sharply defined focus the horrors of the present war are brought in living color to bemuse the evening hours of "an audience" of millions. There is justified unease in the hearts of the American people. The President who is chosen to lead us and the Senators and Congressmen chosen to represent the people must reflect an awareness of that unease and must act to eliminate, where possible, the reasons for its being. Today, Viet Nam is the essence and the symbol of that unease.

President Nixon himself recently remarked on his awareness that his own views of the Viet Nam situation are at odds with what he called the country's "leadership communities." The most important segment of that leadership community, in terms of its power to act and to restrain, is within the United States Senate. If the country is to extract itself from the morass of Viet Nam, then the President and the Senate must act in common and not in dissension and struggle. It is time now for the Congress to reassess its own role in terms of what it has and has not done and what it should do in the future to assure the free debate that is indispensable to our ultimate decision-the product of free institutions. That debate must seek the national interest ahead of partisan advantage. Every element of foreign policy must be totally debated, and the "loyal opposition" is under special obligation to see that this occurs.

It is highly questionable whether the Truman Doctrine, the Marshall Plan, and even UNRRA could have taken place without the leadership exercised in the Senate by Senator Vandenberg's Foreign Relations Committee and the acceptance of that leadership by the country at large. Dean Acheson, in his recent memoirs dealing with his years as Secretary of State, presents in pungent fashion his own account of the relationship between the State Department and the Vandenberg Committee. While the tone of Dean Acheson's recollections differs sharply from the attitudes expressed in Senator Vandenberg's memoirs, they are in full agreement on the essential factors that dominated that key period in postwar policy-making. The Presidential power was exercised in close consultation with the Senate Committee on Foreign Relations. That committee, in turn, helped to amend and shape policy so that it could in good conscience be supported by the Congress before the country at large.

Today, debates about the Viet Nam war, the defense budget and domestic priorities are bringing about an even more powerful role for the Congress in foreign affairs. We have all seen this happening and most view it as a healthy sign; the probing, the questioning, the suggesting, the delving into national security requirements with the same scrutiny which the Congress always has given to domestic affairs have met with general approval. Yet, in themselves, these do not add up to a new role for the Congress in foreign policy. They represent but a beginning of a new assertiveness and a new activism by the Congress, the basis of which has always existed in terms of constitutional authority. The Congress over the last ten years has not asserted this authority because of the preëmption of the role by the Executive Branch and because the Congress tended, albeit all too willingly, to bow to the allegedly superior secret information of the President.

A major function of the Congress with respect to the great issues of foreign policy and national security is that of shaping as well as articulating public opinion. In a democracy such as ours, governmental action is possible only within parameters defined by public attitudes and opinions. In the major Senate foreign-policy debates of the very recent past-Viet Nam and ABM-we have learned that the development and public presentation of new information and interpretations bearing on the great issues is a vital Congressional function as well as a potent instrumentality in asserting legislative prerogatives and responsibilities.

There certainly was vigorous debate within the Executive Branch concerning the ABM issue, but it was, perforce and properly, a debate conducted in camera and it was before a jury structurally oriented heavily toward the military viewpoint The countervailing views of distinguished scientists, outside experts and qualified public men were brought to bear on the question only as a result of Congressional initiative. The same has been true to a lesser extent with respect to the Viet Nam war.

Until the recent Congressional challenges, the Administration has enjoyed an overwhelming predominance in the field of national security information and interpretation. We have learned and will put to good use, I am convinced, the practicality as well as the necessity of meeting the Executive on roughly equal terms with respect to relevant information and interpretation.

A salutary by-product has been the evolving capacity of the Congress to handle, rather than be intimidated and manipulated by, the problem of "classified" information upon which Administration decision-makers rely so heavily. In the course of hearings on the ABM it became apparent that classified information is sometimes made available on a highly selective basis by Administration witnesses. Diligent and imaginative probing often uncovers additional classified information which supports opposite conclusions. Moreover, we have learned that intensive Congressional scrutiny of so-called classified information can lead to the declassification, with Administration concurrence, of relevant information which has remained classified more for the sake of bureaucratic convenience than for legitimate national-security reasons.

It is the discovery and development of alternative viewpoints about "secret" information which make the greater use of closed-door sessions of the Senate and House a potential instrument of greater Congressional effectiveness in foreign policy. Attendance invariably is high at secret, closed-door sessions at which the full range of classified information can be presented and submitted to critical cross-examination by proponents and opponents of a particular measure.

Of perhaps even greater usefulness is the technique evolved during the Viet Nam and ABM debates of bringing differing interpretations and recommendations dramatically but responsibly to the public's attention. An alternative case, differing from that presented by the Administration, has been articulated with great effectiveness before Congressional committees both by Senators and by distinguished public witnesses whose knowledge, judgment and experience carry great weight. I believe that this is a technique which the President and his senior Cabinet advisers should welcome. It can materially enhance the quality of decision-making and the efficacy of policy implementation, to the President's advantage, for the nation ultimately will judge the President on performance rather than on rhetoric. Moreover, in our system as contrasted to the parliamentary system, major revision of Administration-sponsored legislation does not represent the threat and the challenge to the government which similar action would do to the British Government, for instance.

III

The road to greater Congressional participation in foreign policy is marked by the choice of key issues for public examination. We have not yet addressed all the basic foreign and national security issues other than Viet Nam and the Anti-Ballistic Missile system. Because of this concentration of effort, two misimpressions are developing: first, that we in the Congress only criticize and have little that is positive to offer; and second, that we tend to oppose most of the Administration's present foreign and security policy. Neither is true. Unfortunately, our criticisms may continue to be mistaken for a broadside on the present U.S. role in the world until we forge a new concept of Congressional-Executive relations on foreign policy and a new more relevant foreign policy.

The catalyst for defining the new relationship has been and is obviously Viet Nam. The war there brings us face to face with a policy dilemma in the separation of powers under the Constitution. The war is being carried out under the President's powers as Commander in Chief. There was no declaration of war by Congress. Only a Sense-of-the- Congress Resolution backs him; and that is terminable by resolution of both Houses. Who, then, shall decide when substantively there is to be war? This dilemma, and the uncertainty it creates about the responsibility for war, points up the need to find a new "check and balance" in the Congressional role in foreign policy-a "check and balance" that is adaptable to modern "undeclared" war.

The Congress has yet to question effectively the powers of the Commander in Chief to dispose American forces overseas as he sees fit. President Eisenhower in 1958 landed Marines in Lebanon. President Johnson in 1965 poured 20,000 U.S. troops into Santo Domingo. Both assertions of military power came without declarations of war. We were considerably more fortunate in each case than we have been in Viet Nam, for the Executive's objective was achieved both times without the horrifying material and human costs we are paying in the present conflict. It is my judgment that as unfortunate as is the Viet Nam conflict, it would be even more so if Congress had declared war. The Viet Nam action issues from executive decision; it is not a commitment of the national honor.

If the Congress had declared war, a tremendous complex of international agreements, a whole area of international law would have been invoked in such fashion as to unloose unforeseeable consequences. Public opinion might very well have required the bombing of Haiphong harbor and probably a land invasion of North Viet Nam. There are those who assert that our Viet Nam involvement should have been offered to the Congress in the context of a proposed declaration of war and that, if faced with such a prospect, we would not have become involved in the conflict as we did. I, for one, am glad that no such declaration was sought or given. The power to declare war is an ultimate Congressional power to commit the nation. The power not to declare war is a legitimate check on foreign policy.

Members of the Senate were among the first to sound the call for a reassessment of America's commitment in Viet Nam. As sentiment against the conduct and the nature of the war rose in intensity, the Senate itself provided the principal forum for the expression of views ranging from dissent to the presentation of alternative action. Whatever the merits of the individual positions assumed by my colleagues throughout these last difficult years, it is my view that political scientists will record the role of this Senatorial opposition as one of the high points in the history of the Senate as a great deliberative body.

No matter what the ultimate outcome in Viet Nam, a somber warning note has been struck. Not only has policy been brought into question, but the institutions of policy-making themselves. When a policy loses public support and proves non-viable, and when, nevertheless, the institutions of government either support or do not change that policy, the validity of the institutions as well as the policy is called into question. An individual President may fall in the wake of adverse public opinion, but if we are to preserve the fabric of our society, we must assure ourselves that the institutions of the Presidency and the Senate retain their viability. Under the stresses of the Viet Nam war this relationship has been subject to strains unparalled within the last century.

The United States Senate, notwithstanding objections voiced within its chambers to the course of American policy in Viet Nam, was so used during the Johnson Administration as to find itself a Presidential echo rather than an independent voice. As Commander in Chief, President Johnson was in absolute control of all information relating to the course of the war. That control was a key factor in the overwhelming adoption of the Tonkin Gulf Resolution. When confronted with the Commander in Chief's assessment that American troops are under attack by a foreign enemy, few Senators will take it upon themselves to refuse to support an effective response. To do so would be against the national interest as it has been understood since the inception of the Republic.

But today there are many who think that the Congress was misinformed or inadequately informed as to what actually occurred in August of 1964 in the Gulf of Tonkin. A mutual distrust between the President and his principal legislative advisers in the area of foreign affairs has grown steadily. Senators today are inclined to cast a jaundiced eye on Presidential assessments, and, unfortunately, even on assertions of fact. This distrust of the exercise of the executive power can lead to a reassertion of Congressional authority and, hopefully, renewed coöperation between the President and the Senate-or it can push us toward a stalemate of wills.

Mr. Nixon's assumption of the Presidency provided us with the opportunity to extricate ourselves from the Viet Nam conflict. In the months since he took office he has not yet given adequate evidence of responding to a mandate that he himself acknowledges to get us out of the war. He told the nation in May: "I do not criticize those who disagree with me on the conduct of our peace negotiations. And I do not ask unlimited patience from a people whose hopes for peace have too often been raised and then cruelly dashed over the past four years." And yet his immediate response to the October Moratorium offered no fresh evidence of response to the dissent on Capitol Hill. The President, in his November 3 address, made no mention of any Congressional policy role in his plan to end the Viet Nam war; yet if we are at last to free ourselves of Saigon's "veto" on the Vietnamization of the war, the Congress will have to stand with the President in the decision. The enormous pressures being exerted on the President by those involved in the war or who favor its prosecution are not conducive to patience with criticism, no matter how constructive it is in its intent or application.

Nevertheless, we in Congress-even of the President's own party-must continue to criticize when necessary in order to fulfill our mandated role. It has been suggested by Representative Jonathan Bingham in the pages of this review that increased Congressional surveillance of military expenditure is not only a necessity today but gives promise of being an even weightier factor in future sessions of the Congress. The increasing complexities and expenses of weapons systems are too often causative factors in the evolution of policy. It is the case of the cart before the horse, and some of us at least have been awakened to the need for putting them back into proper position. But military spending and weapons systems are only one element in the shaping of foreign policy.

While we in Congress must continue to permit the Executive to determine the direction of that policy, we must insist more forcefully that he provide his reasoning and justification so as to discern where day-to-day actions, unglamorous in detail but substantive in effect, may carry the country. We must also exercise vigilance to assure that foreign policy is not being made for us in the Defense Department, the intelligence agencies or elsewhere by such faits accomplis as contingency plans, the deployment of forces or the location of bases, which deprive us effectively of our voice in foreign policy. It is here that the Congress can act as both a restraining and as an informing influence, and, where appropriate, as an affirmative partner with the Executive.

Of course, the first prerequisite for the best functioning of our constitutional system in foreign policy is a knowledgeable and sensitive President who wants to coöperate with the Congress in foreign policy. This is perhaps the best assurance that the Congress will do its part and that the coöperation will work.

In any case, the Congress must fulfill the full dimension of its constitutional role. In order to reassert its proper place, we must consider enlarging some of its capabilities. The Executive Branch has at its disposal the largest and best equipped staff in the world. If Congress is to fulfill its responsibilities adequately, it, too, needs a staff- larger and of better quality than exists today. In an age when we spend billions on atomic arsenals we must allocate resources to those endeavors which will hopefully make those arsenals obsolete.

IV

There is, fortunately, an element of foreign policy in which Congress has continued to play a leading role throughout what we have come to think of as an era of executive dominance.

Section VIII of Article I of the Constitution empowers Congress to "regulate Commerce with foreign nations" and to "lay and collect Taxes, Duties, Imposts, and Excises." The powers and responsibilities of the Congress in this field have grown in importance throughout the postwar period and I look to a similar growth in the decade of the 1970s.

There has been a vast increase in international trade, and investment problems will loom as large as trade problems in the 1970s. Continuing international monetary problems have sharply challenged the very foundations of our international monetary system, which is based on gold. The year 1970 may see significant changes. The problems of an inward- or outward-looking Common Market and the expansion of this economic grouping also loom large, as do those of better integrating the powerful Japanese economy into the Western system. The world's North-South standard-of-living gap is a problem of such magnitude that its bridging cannot be conceived of in terms of presently existing institutions and developmental assistance programs. These problems dictate the need for a more coördinated approach to the issues of foreign economic policy within the Congress and the Administration as well as between Congress, the Administration and international organizations. The time may come when it will be necessary to create a new department of cabinet rank to handle the issues of foreign trade and aid, technology and U.S. private investment; there will be a parallel need for new committees within both Houses of the Congress to deal with the new legislation and new approaches that will be required.

The future will be built on what we are doing now, and here again the Congress is in the forefront. In the very near future, the Joint Economic Committee (JEC) of the Congress, of which I am the ranking Minority member, will open hearings on a wide range of trade issues facing this nation. It should be recalled that similar hearings were a prelude to the Kennedy Administration's introduction of the Trade Expansion Act in the early 1960s- the truly historic legislation which formed the cornerstone of our trade policy during this decade. Hopefully, these hearings will again lead the way into the 1970s.

The Joint Economic Committee has also pioneered in other crucial areas which will be of increasing importance in the years ahead. Certainly its groundbreaking hearings regarding the economy of Mainland China did much to correct myths and misinformation which had accumulated during the emotional McCarthy years in the 1950s and to stimulate new and more realistic thinking. It is clear that our relations with Mainland China must evolve over the years in a way so as to increase commerce and cultural and educational interchanges. The ideological and military-oriented approach of the Defense and Commerce Departments relates not to the future but to the receding past. The State Department shows signs of going the other way, however.

Congressional innovation must extend to economic détente with Eastern Europe. The recent Senate passage of the Export Expansion and Regulations Act-even over some Administration opposition-is a first step in our agenda for the 1970s. Paralleling the vital search for a modus vivendi in the field of strategic weaponry, we should undertake a search for positive moves in the fields of monetary affairs, aid and trade, general economic relations and the coördination of developmental assistance efforts. We should very much hope that over the next decade the Soviet Union would consider joining established international trade and financial agencies such as GATT, the IMF, IDA and the IBRD, and regional trade and financial organizations.

If these and other foreign-policy objectives are to be achieved, a dialogue between the Executive and Legislative Branches must occur in such style as to ensure meaningful responses on the part of each. Many years ago, as an undergraduate at New York University, I debated in the negative a resolution moving the adoption of a parliamentary form of government for the United States. NYU won the debate, but experience has since moved me somewhat closer to the position of my opponents from CCNY. Although the parliamentary form as practiced in other countries would introduce into the American society an element of instability we can ill afford-outweighing the value of its flexibility and sensitivity-there are elements within the parliamentary system we might in practice adopt.

In the Executive Branch only the President is elected; the Secretaries of State and Defense, the agency and department heads are responsible to him. Every Congressman has a specific constituency to which he is responsible and responsive. The Congress must reassert itself in the formation of foreign policy so as to avoid the bitterness of future Viet Nams in which its constituents suddenly find themselves reluctant participants.

Perhaps we could initiate the practice of interpellations-where at "closed- door" Senate sessions members of the President's Cabinet might find it possible to appear and to be as responsive to questions from the floor as Cabinet members are obliged to be in such sessions in the House of Commons, and as they are when testifying before Congressional committees. Such a parliamentary interchange would help participants counsel each other about information which otherwise would have to be taken on faith.

In any event, hard questions must be asked of the executive agencies. Since the early days of the Presidency, executive privilege has been asserted by the Executive Branch. Presidents from Washington to Nixon have each, on occasion, refused to provide the Congress with information deemed privileged by the President. That information is often requisite to intelligent assessment of a given policy issue. But its denial to the Congress by the President is hallowed by long and effective precedent.

Increased surveillance of executive defense and planning agreements overseas is required of the Congress. Too few Americans are aware that the treaty-making process has eroded to a point where the "executive agreement" has tended to eliminate the Senate's concurrence as a component of national arrangements with foreign powers. In 1968, 57 treaties were concluded and 226 executive agreements were made in the name of the United States Government. Those executive agreements, no matter what their purpose, abrogate in effect the Senate's rights and obligations. We must, at the very least, subject them to a more intense scrutiny than we have in the past. Secret agreements between the Executive Branch and foreign powers have become all too frequent in recent history, as the Senate Subcommittee on Military Security and Commitments Abroad is finding in its current investigations.

In 1968 we learned that our highest military authorities had assured General Franco of a continuing American military presence on Spanish territory, as part of the bases agreement. Even more recently it was disclosed that in 1965 the Thai Government and the American Military Mission in Thailand signed a "contingency military plan." That arrangement, ostensibly agreed to under the SEATO umbrella, pledged assistance of an order that should have come only with Congressional authorization. Recently, Secretary of State Rogers, in a statement before the Foreign Relations Committee, diluted the effect of that agreement. But seven years ago we were told by Secretary of State Rusk that Thailand was "vital to the national interest of the United States and to world peace."

We must assure ourselves in the future of a continuity of national attitudes in foreign relations rather than the breaks that inevitably come when arrangements are made without adequate constitutional authority. There is a case for executive agreements, but they should be reconciled to the Senate's power to advise and consent-that is, the Senate must be made privy to them.

The whole Senate will probably have to sit with increasing frequency with the "doors closed" in secret session. There have been three occasions in this session of the Senate-twice on the ABM, once on military spending-when we have taken such action. To date, however, this procedure has been infrequent enough to warrant headlines when it occurred. I suggest it should become part and parcel of the process by which we advise and consent. Only then can we exercise full moral suasion on the President to take us into his confidence sufficiently to comprehend some of the policies initiated in the White House. Such secrecy is often held to be repugnant to the democratic process. But in our time it may well be one of the tools which can assist its survival.

"Meaningful consultation," a phrase used by Senator Ervin in the recent debate on the National Commitments Resolution, is a key to the changing role Congress must play in foreign relations. The nearly 5,000 international agreements reached by the Executive since 1946 have done much to shape the nature of America's position in the world. We must assure ourselves that in the future the American people through their elected representatives will have considerably more to say about the nature of that position.

The National Commitments Resolution places the Senate on record as follows:

Whereas accurate definition of the term "national commitment" in recent years has become obscured: Now, therefore be it Resolved, That (1) a national commitment for the purpose of this resolution means the use of the armed forces of the United States on foreign territory, or a promise to assist a foreign country, government, or people by the use of the armed forces or financial resources of the United States, either immediately or upon the happening of certain events, and (2) it is the sense of the Senate that a national commitment by the United States results only from affirmative action taken by the Executive and Legislative branches of the United States Government by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.

In order to meet the obligations inherent in that resolution, we must move more closely to a sharing of day-to-day responsibility with the Executive.

Essentially, the constitutional role of the United States Senate in foreign policy is consultative. Our powers are not comparable to those of the Presidency. The one weapon we have, the control and authorization of appropriation-the power of the purse-must necessarily be used with the greatest discretion. It is my view that only in a situation in which the President is completely resistant to the national will, as expressed by an overwhelming vote of the Congress, should this power be brought to bear. For as we call upon the President to respect the rights of the Legislative Branch we must, even in times of stress, respect his. The use of such power in foreign policy through denying appropriations implies a rejection of the American President almost as stunning in its implications as a vote of no confidence under the parliamentary system-which thereby ousts the government. It would, in all probability, make it very difficult thereafter for the President to perform the executive function in foreign-policy areas having little or nothing to do with the case in point, e.g. the Viet Nam conflict.

We must be aware of the potential for disaster in conflicts between the branches of the Federal Government. It has been a great source of strength and gratification to me and to my colleagues that our efforts-particularly with respect to Viet Nam and the nuclear arms race-have elicited such strong and broad popular support from the people we represent. But, wherever and whenever possible, the Executive and the Legislative Branches must respect each other's rights and sensibilities. This being said, it is essential that we face up to the difficult prospect that some day the President of the United States may interpret his executive powers in foreign affairs in a way that directly conflicts with the way Congress interprets its own obligations. If that day comes, the Congress will have to consider seriously the cut-off of funds for purposes to which the national constituency is opposed.

I hope that day never comes. That is why I feel so strongly that the National Commitments Resolution is a watershed in the American experience. I see this resolution as a concrete response to the desire, perhaps I should say the demand, of the American people that the Senate play its full role in the national security field, especially with respect to national commitments.

I see this resolution as a signal to the Executive Branch that it must adjust itself psychologically and procedurally to a new reality-the reality that the Senate will not again shrink from its responsibilities or yield its constitutional power with respect to national-security issues and the solemn undertaking of national commitments.

If the Executive Branch responds to that signal, the danger of constitutional crisis will pass as have so many other fevers of the American spirit. For more than a century this nation has avoided a governmental stalemate. We must continue to do so. We in the Congress must avoid throwing the gauntlet down before the Executive. But we must also have in return greater respect by the President for the advise-and-consent function of the Congress and specifically of the Senate. For in the remainder of the twentieth century we must live together if we are to live at all.