1986] U.S. MUTUAL SECURITY TREATIES 541 troversy" it provoked. Instead, the treaty used the formula of the Monroe Doctrine, which, he said, left "no doubt that the constitutional powers of the Congress and the President are exactly where they stood before. [The treaty] has no effect whatsoever on the thorny question of whether, how, and under what circumstances the President might involve the United States in warfare without the approval of Congress." "203 No significant discussion of the issue occurred, and on February 1, 1955 the SEATO Treaty was approved by a vote of eighty-two to one. 204 F. The Japan Treaty The Treaty of Mutual Cooperation and Security Between the United States and Japan2 205 sets forth an obligation virtually identical to the other Pacific-area mutual security treaties. The treaty provides that "[e]ach party recognizes that an armed attack against either Party would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.' By the year this treaty was signed, 1960, the Senate apparently had come to have so firm an understanding of the meaning of such language that the issue was virtually ignored. 207 G. The War Powers Resolution 206 The War Powers Resolution 208 addresses the issue in section 8(a)(2). That section provides that [a]uthority to introduce United States Armed Forces into 203. 101 CONG. REC. 1049, 1051 (1955). 204. Id. at 1060. 205. Treaty of Mutual Cooperation and Security Between the United States and Japan, Jan. 19, 1960, 11 U.S.T. 1632, T.I.A.S. No. 4509. 206. Id. art. V. 207. Compare the questioning of Secretary of State Christian Herter by the Senate Foreign Relations Committee with that of other Secretaries of State testifying on previous treaties. Treaty of Mutual Cooperation and Security with Japan: Hearings Before the Senate Comm. on Foreign Relations, 86th Cong., 2nd Sess. 1 (1960) (statement of Christian Herter, Secretary of State). Also, this was a "replacement" treaty with Japan; at Japan's request, the treaty was revised, although the commitment provisions remained the same. Testifying on the scope of those provisions in 1952, Senator Brewster asked John Foster Dulles what U.S. obligations would be "if Russian troops did move down from the islands into Japan?" He replied, "We have no obligation." The Japanese Peace Treaty and Other Treaties Relating to Security in the Pacific: Hearings Before the Senate Comm. on Foreign Relations, 82d Cong., 2d Sess. 117-27 (1952) (statement of John Foster Dulles, personal representative of President on Japanese Treaty). 208. Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C. §§ 1541-1548) (1976) (hereinafter cited as War Powers Resolution]. 542 COLUMBIA JOURNAL OF TRANSNATIONAL LAW hostilities or into situations wherein involvement in hostili- [24:509 The proscription against inferring such authority from a treaty "heretofore" ratified seems clear enough. Because none of those treaties is implemented by legislation meeting the two conditions specified in section 8(a)(2)-specific authorization and express reference to the War Powers Resolution—the Resolution seems to say that no authority to introduce the armed forces into hostilities may be inferred from any treaty. Yet a subsequent provision appears contradictory. Section 8(d)(1) provides that "[n]othing in this joint resolution... is intended to alter the... provisions of existing treaties."210 If an "existing treaty"—presumably one in force at the time of the enactment of the Resolution-did permit such an inference of authority, how is that authority affected by the War Powers Resolution? Does the Resolution, as one commentator put it, talk "out of both sides of its mouth"?211 The provision originated in the Senate version of the Resolution,212 which provided that "[n]o treaty in force at the time of the enactment of this Act shall be construed as specific statutory authorization for, or a specific exemption permitting, the introduction of the Armed Forces of the United States into hostilities . . . ."213 In its report, the Senate Foreign Relations Committee explained its understanding of "existing" treaty commitments: Treaties are not self-executing. They do not contain author- ... 209. Id. § 8(a)(2). 210. Id. § 8(d)(1). 211. A Review of the Operation and Effectiveness of the War Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 76 (1977) (statement of Monroe Leigh, Steptoe and Johnson, Washington, D.C.). 212. S. 440, 93d Cong., 1st Sess., 119 CONG. REC. 25, 119-20 (1973). 213. Id. § 3(4). 1986] U.S. MUTUAL SECURITY TREATIES our security treaties.2 214 543 The conference report215 set forth section 8 as it reads in the Resolution; the joint statement of the managers (appended thereto and explaining the meaning of the conference report) says merely that the conference committee "agreed to [the] adoption of modified Senate language defining specific statutory authorization, and defining the phrase 'introduction of United States Armed Forces' as used in the joint resolution."216 No explanation is given as to the meaning of the cryptic indication of an intent not to alter the provisions of existing treaties. Given this background, what is to be made of section 8? Conflicting interpretations are doubtless possible, but the most reasonable would appear to be that the section was intended to make clear that no treaty may serve as a source of authority for the introduction of the armed forces into hostilities. This limitation should be construed as applying to all treaties, ratified both before and after enactment of the War Powers Resolution. To construe the provision as exempting "existing" mutual security treaties would be to create a confused, two-tier system of security treaties. Such a result would be without support in the legislative history and completely at odds with the oftrepeated belief that no treaty in force at the time of the debate on the Resolution did or could commit the United States automatically to introduce its armed forces into hostilities. The apparently inconsistent reference of section 8(d)(1) to the "provisions" of "existing" treaties can in fact be read as a straightforward (if infelicitous) attempt to state the congressional understanding that no existing treaty is altered by the War Powers Resolution because no existing treaty does provide authority of the sort that the Resolution rules out. This is, in fact, how the treaties were construed by both the Ford217 and 214. S. REP. No. 220, 93d Cong., 1st Sess. 26 (1973). The Committee said further that: the war powers of Congress are vested in both Houses of Congress and not in the Senate (and President) alone. A decision to make war must be a national decision. Consequently, to be a truly national decision, and, most importantly, to be consonant with the Constitution, it must be a decision involving the President and both Houses of Congress. Id. 215. H. REP. No. 547, 93d Cong., 1st Sess. (1973). 216. Id. 217. In connection with Secretary of State Henry Kissinger's appearances before the Senate Foreign Relations Committee on November 19, 1975, Senator Dick Clark submitted a question asking whether "any treaty authorize[s] the introduction of U.S. armed forces into hostilities...?" The administration replied: [T]he answer is "no." Treaties of the United States which express defense commitments to other nations commit the United States to act only in accordance with its constitutional processes. Such treaties do not confer authority which would not otherwise be available through the constitutional processes of the United States. As Senator Stennis reminded the Senate during the confused debate on the treaty with South Korea, it is important to “keep our eye on the ball."219 The issue is not what procedures are implied or required by the term "constitutional processes;" whether congressional approval is required before the President can introduce the armed forces into hostilities is a vast and complex question, far beyond the scope of this article.220 Rather, the issue here is whether U.S. mutual security treaties can and do serve as a supplementary source of authority on which the President can rely to introduce the U.S. armed forces into hostilities. Part of the confusion has derived from a focus on the word constitutional to the virtual exclusion of the word processes. Process suggests deliberation; it implies procedure leading to choice.221 In one sense, of course, the question of whether Congress should choose to Letter from Robert J. McCloskey, Assistant Secretary of State, to Sen. Dick Clark (Mar. 1, 1976) (on file with author). 218. In response to a letter from Senator George McGovern to Secretary of State Cyrus Vance, the administration replied: [A]lthough our mutual security agreements entail a legal obligation to respond to an armed attack on another party, the nature and scope of that response is left to the discretion of the responding party Accordingly, such treaties do not confer "Authority to introduce United States Armed Forces into hostilities" within the meaning of Section 8(a)(1) of the War Powers Resolution. .... Letter from Douglas J. Bennet, Jr., Assistant Secretary for Congressional Relations, to Sen. George McGovern (June 2, 1977) (on file with author). 219. 100 CONG. REC. 779, 789 (1954). 220. The proverbial "short answer" is that the President's independent constitutional authority depends on a number of factors, including the purpose for which the forces are used and whether a bona fide emergency exists. See generally Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 MINN. L. Rev. 1 (1975); Note, Congress, The President, and the Power to Commit Forces to Combat, 81 HARV. L. REV. 1771 (1968); War Powers Resolution, supra note 208, § 2(c) (expressing the understanding of Congress that the President's independent powers to introduce the armed forces into hostilities extend only to "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces"). 221. This is illustrated by the Senate Foreign Relations Committee's use of the term in another, similar context. As submitted to the Senate, the Panama Canal Treaty, Treaty on the Panama Canal, Sept. 7, 1977, United States-Panama, - U.S.T., T.I.A.S. No. 10,030, originally provided that "[t]he Parties shall conclude an agreement" concerning the exchange of prisoners. Id. art. IX(11). The Committee recommended (and the Senate later accepted, 124 CONG. REC. 10,541 (1978)) an understanding which provided that any such agreement "shall be concluded in accordance with the constitutional processes of both parties." S. EXEC. REP. No. 12, 95th Cong., 1st Sess. 6 (1978). The Committee indicated its intent to require that the agreement take the form of a treaty. One additional purpose of the understanding, the Committee said, was to clarify the substance of the international commitment undertaken by the United States: 1986] U.S. MUTUAL SECURITY TREATIES 545 act is academic, or at least in certain situations it can be. Those are circumstances in which the President clearly possesses independent constitutional authority to introduce the armed forces into hostilities. There, the extent to which a given mutual security treaty does or does not provide such authority need not be reached. Where units of the U.S. armed forces are stationed where they have a legal right to be and are subject to an armed attack, for example, it is irrelevant that an applicable treaty also might provide support for the use of armed force. The President could of course find it useful for domestic political purposes to cite the attack upon a treaty ally as further justification for using armed force in response. But as a constitutional matter it is simply clear that, under such circumstances, the U.S. Constitution provides all the authority the President requires. On the other hand, the issue is far from academic in circumstances where no colorable source of authority exists other than a mutual security treaty. One respected commentator has suggested that the question is not a serious one because the United States can simply "refuse to honor"222 such a commitment, which is "no different from other treaty undertakings . . . ."223 The meaning of this observation is not altogether clear. If the suggestion is merely that Congress and the President have it within their power, acting together, to disregard international obligations of the United States, then the point is a useful reminder that there is, when the political As paragraph 11 has been drafted, it could be construed as requiring the United States to enter into a prisoner exchange agreement, and would thereby place the United States in violation of this treaty should the United States elect not to do so. Obviously, the authority of the Senate to advise and consent to a treaty is meaningless if it is required to be given; the authority to disapprove is implied if our "constitutional processes" are to be upheld. Id. at 11. The Committee also recommended use of the term "constitutional processes" in an amendment to a companion treaty, the so-called "Neutrality Treaty." Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, Sept. 7, 1977, United States-Panama, — U.S.T. —, T.I.A.S. No. 10,029. In language illuminating the meaning of the phrase in the mutual security treaties, the Committee explained its intent: The effect of this language is to make clear that the treaty does not obligate the United States to introduce its armed forces into hostilities or authorize the President to do so. It thus places the Neutrality Treaty, in terms of the "automaticity" of the United States' international commitment, in the same category as mutual security treaties to which the United States is a party. All such treaties implicitly reserve to the United States a right of choice in each individual situation to act, militarily, as it deems appropriate under the circumstances. Any treaty which did not do so would, in the Committee's opinion, unconstitutionally divest the House of Representatives of its share of the warmaking power and would, unconstitutionally, delegate to the President the power to place the United States at war. S. EXEC. REP. No. 12, 95th Cong., 1st Sess. 74 (1978). 222. L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 192-93 (1972). 223. Id. at 192. |