"SEC. 4. On the question of advising and consenting to a treaty, the vote shall be determined by yeas and nays, and the names of the Senators voting for and against shall be entered on the Journal of the Senate." We concur in the views of the section of International and Comparative Law of the American Bar Association which opposes the Bricker amendment. As a whole, Senate Joint Resolution 3 does not offer sufficient improvements over its previous drafts and the one that this association voted to oppose on November 23, 1953. In particular, section 1 of Senate Joint Resolution 3 represents, in the words of its sponsor, constitutional sanction for Supreme Court dicta. Since it is well established that a provision of a treaty or other international agreement not made in pursuance of the Constitution is invalid, this section is unnecessary. Furthermore, the elaborate process of a constitutional amendment is not resorted to, to dignify a restatement of accepted legal principles, and a presumption may be deemed to arise that some change was intended. It has been suggested that the proposed section may be interpreted to mean that a treaty or other international agreement must relate to fields in respect to which Congress has power to legislate in the absence of such treaty or agreement, in order to be made "in pursuance of" the Constitution. The section may well result in confusion rather than clarification. Section 2 would deny self-executing effect to treaties and other international agreements unless they are implemented by "legislation" or it is so provided affirmatively in the resolution of advice and consent of the Senate. According to the explanation of Senator Bricker, the word "legislation” embraces enactments both of Congress and by the States. A doubt thus arises that a treaty may require implementation by legislation of the 48 States. No valid and convincing reason is advanced by the proponents of the amendment why the Senate should be induced to limit its constitutional prerogatives which it has effectively exercised for 168 years. Section 3 makes the validity of executive agreements subject to the enactment of legislation which should be valid in the absence of such international agreements. While international agreements should not be resorted to as a means of legislation by the Executive, the limitation sought to be imposed may be disruptive of the effective discharge of the President's military and diplomatic responsibilities. The existing constitutional and political limitations on the powers of the President to conclude executive agreements having effect as internal law, have proved and are sufficient to make unnecessary the proposed constitutional amendment. Section 4 requires the recording of the votes cast by Senators on a treaty. The safeguard which is the object of the proposed amendment, namely that a treaty shall not be ratified in the absence of a quorum, is certainly desirable, but finds more appropriate place in the Senate rules than in a constitutional amendment. The 6 of the 7 members of the committee who were present at the last meeting voted unanimously to disapprove adoption of the Bricker amendment and the absent member subsequently reported a like vote. This committee therefore recommends that this association go on record as opposing the Bricker amendment. WRITTEN STATEMENT OF OMAR B. KETCHUM, DIRECTOR. NATIONAL LEGISLATIVE SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES The Veterans of Foreign Wars appreciates the opportunity to submit to this subcommittee a written statement on Senate Joint Resolution 3, the most recent of the proposed Bricker amendments to the Constitution. At its last national encampment held in Dallas, Tex., in August 1956, the VFW again adopted a resolution supporting the principles embodied in Senate Joint Resolution 3. Delegates representing our organization's 14 million members adopted a resolution urging "the adoption of a constitutional amendment which will prevent the overriding of our Constitution and of domestic laws by means of treaty powers." It is our belief that the provisions of Senate Joint Resolution 3 satisfy the requirements of this VFW resolution. Our organization therefore urges the adoption of the Senate resolution. In doing so, we would first point out that the reasons we gave this subcommittee in April 1955 for passage of a similar resolution still hold true today. 1. Outstanding constitutional authorities are still split on the need for such an amendment, with many of them convinced that it is essential to the protection of constitutional rights that a Bricker-type amendment be added to the Constitution. We still maintain that the doubt which exists on this issue should be resolved in favor of the American people; that is, by the adoption of the amendment. 2. Various U. N. treaties submitted to the United States for approval take no cognizance of certain fundamental rights provided by the Constitution of the United States. They are therefore a threat to constitutional rights. Effective protection against them is required. 3. Attempts to revise the U. N. Charter informally and give the world organization greater powers, including those of a world government-and thus to nullify the United States Constitution-continue to be made. 4. There is still no clear-cut Supreme Court decision on the question of which takes precedence, the Constitution or the treatymaking power, when there is a conflict between the two. The lower courts have issued contradictory decisions on this point. In addition, there is one new development which emphasizes the need for a constitutional amendment such as that proposed by Senator Bricker. This is the case of Army Sp3c. William S. Girard who has been accused of killing a Japanese woman and whose case is now before the Supreme Court. In view of some of the Court's recent decisions it is difficult to even hazard a guess as to how it will rule in this case. It is not even known, in fact, if the Court will get to the basic issue of whether the executive agreement with Japan or the related NATO status-of-forces treaties are constitutional or not. No matter how the Court rules, however, it will demonstrate the need for Senate Joint Resolution 3. If it rules that Girard must not be turned over to Japanese courts for trial because to do so would deprive him of constitutional rights, then we will be confronted with the fact that an unconstitutional executive agreement has been in effect for 4 years despite the High Court's finding, in effect, that it never should have been made. Had a Bricker-type amendment been in effect during these 4 years, those who have consistently fought the status-of-forces treaties and related executive agreements would have had a weapon at hand with which they could have much more quickly and effectively nullified these unconstitutional compacts, and perhaps even prevented their enactment. If the Supreme Court fails to get down to the basic issue or decides for any reason that Girard should be turned over to a Japanese court for trial, then the need for Senate Joint Resolution 3 becomes all the more apparent because it will be unmistakably clear that the Court is permitting the destruction of the constitutional rights of our military personnel and that the people have no hope except to turn to the Congress and the States for redress of their grievance on this point. Our contention that the Supreme Court will be trading away the rights of United States military personnel if it permits the trial of Girard by Japanese courts is based on these facts: The Constitution gives the whole Congress the power to govern and regulate the Armed Forces of the United States. The whole Congress has most recently exercised that power by passing the Uniform Code of Military Justice, and authorizing the publication of a Manual of Courts-Martial based on it, in 1951. Under the Constitution, that Code and Manual are the only authorized regulations concerning the rights of military personnel accused of crimes. They spell out the only departures from the full protection of the Bill of Rights that may be made in prosecuting Armed Forces personnel. The courts of some foreign lands do not afford an accused party all the rights provided by the Uniform Code or the Manual for Courts-Martial. In support of this statement, it is only necessary to mention the fact that the Napoleonic Code prevails in some foreign courts. This places the burden of proof on the accused who must prove his innocence, instead of assuming the innocence of the accused until guilt is proved, as provided by the Bill of Rights, Uniform Code and Manual for Courts-Martial. Despite this fact, in 1953, the Senate and the President, acting together, ratified a treaty-and the President, on his own, made an executive agreement with Japan—which placed United States military personnel under foreign courts. This is an unauthorized deprivation of the fundamental rights provided American servicemen in the Uniform Code. Inasmuch as this action was not taken by the whole Congress, it is unconstitutional. The President and the Senate, acting together and alone, have not only sought to govern and regulate our Armed Forces, but, in doing so, have stripped Armed Forces personnel of constitutionally bestowed rights. The Constitution says that the whole Congress alone has the power to regulate the Armed Forces-but even its right does not go to the point of deprivation of basic rights. In considering certain treaties and executive agreements regarding our Armed Forces and their constitutional rights. I would like to refer to Supreme Court Justice Black's recent majority opinion in the case of Reid v. Covert. In this June 10, 1957 decision, the Court reversed the convictions of two women who had been convicted by courts-martial of murdering their service husbands while overseas. Justice Black, in the opinion, made the following statement in reference to the provision in the Uniform Code of Military Justice that dependents, as well as armed services personnel, could be tried by courts-martial for certain crimes committed overseas: "No agreement with a foreign nation can confer power on the Congress, or on any branch of the Government, which is free of the restraints of the Constitution." From this it is clear that the NATO Status of Forces Treaties and the executive agreement with Japan are unconstitutional because constitutional restraints on the regulation of the Armed Forces were ignored in making them. Furthermore, constitutional rights provided by the Uniform Code were abrogated by them. Justice Black also stated in his decision: "The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and property should not be stripped away just because he happens to be in another land. "This is not a novel concept. To the contrary it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law." This is merely dicta by Justice Black. It is not a controlling decision by the Court, but it states a principle which we firmly uphold, which we hope the Court will eventually uphold and one which raises serious questions about the constitutionality of both the executive agreement with Japan relating to American Armed Forces personnel and also to the NATO Status of Forces Treaties. These compacts are violations of the principle enunciated by Justice Black because they strip away the shield which parts of the Constitution provide to protect the life and the property of American servicemen-and they do so simply on the basis that these men happen to be in another land. In our opinion the Supreme Court should uphold the right of American servicemen to be tried "in strict accordance" with the Uniform Code of Military Justice, and declare unconstitutional any treaty or executive agreement which permits trial of service personnel by any foreign court which does not grant, to the fullest degree, every protection afforded by that code. The Uniform Code of Military Justice and Manual for Courts-Martial are the servicemen's bill of rights, bestowed upon them by Congress in accordance with the Constitution. While Justice Black and three other Justices of the Supreme Court have said that no treaty or executive agreement can deprive American servicemen of the protections afforded them in this bill of rights, the fact is that they are being deprived of those protections by the NATO Status of Forces Treaties and related executive agreements. It appears to us that this is a clear-cut case of treaties and executive agreements conflicting with the Constitution. Yet these treaties and agreements are the law of this land and approximately 12 million citizens are subject to them. Had a Bricker amendment been in existence these treaties and executive agreements may well have never been concluded because such an amendment would serve as a deterrent and make both the Chief Executive and the Senate consider and debate most thoughtfully all the constitutional implications of any proposed treaties or agreements before approving them. The case of Army Sp3c. William S. Girard serves to highlight the need for Senate Joint Resolution 3. Without it, or some very similar amendment, the constitutional rights of the American people are clearly in danger from treaties and executive agreements. It is for this reason that we strongly urge this subcommittee, the full Judiciary Committee and the full Senate to act favorably and as quickly as possible on this proposed amendment to the Constitution. Mr. WAYNE SMITHEY, VIGILANT WOMEN FOR THE BRICKER AMENDMENT, Member, Professional Staff, Senate Judiciary Committee, DEAR MR. SMITHY: Thank you for giving us an opportunity to make an additional statement for the record re Senator Bricker's Senate Joint Resolution 3. After conferring with Mrs. Barker we decided there was no statement we would care to make at this time. Our position is the same now as it was in the past-we want a strong resolution such as we fought for in the beginning-one which will protect us from not only executive agreements but treaties as well. When such a resolution is again introduced, we will once again join the fight. Present happenings have served to bear out our original contention—there can be a bad treaty passed by the Senate. We believe it is regretable that at this time there is not an adequate resolution in the hopper. The time is about at hand when the Senate should give the vast majority of the American people what they want in spite of the White House. Most sincerely, RUTH MURRAY Mrs. Robert A. Murray. WEBSTER SHEFFIELD & CHRYSTIE, WAYNE SMITHEY, Esq., Member, Professional Staff, Senate Judiciary Committee, DEAR MR. SMITHEY: I want to thank you for your letter of the 25th giving me an opportunity to comment on Senate Joint Resolution 3 of the 85th Congress, 1st session. I should like to be recorded as approving the analysis and opinions set forth in the report on the 1957 Bricker amendment of the committees on Federal legislation and international law of the Association of the Bar of the City of New York and, in particular, as endorsing the following language in that report: "The proposed amendment would afford no advantage to justify its adoption. On the contrary, thet ambiguities it would create would occupy constitutional lawyers for years to come, with the possibility that those ambiguities would be resolved to curtail our Nation's position in international negotations. The serious possibility exists that a result would be achieved by the amendment that even its proponents are now unwilling to acknowledge as their purpose. The period of uncertainty during which the questions raised by the amendment were being resolved would be one in which our statesmen and diplomats would be hampered by doubts as to their own authority to speak and act, and other nations would question the effectiveness of our national commitments. The supremacy of the Federal Government in foreign affairs must not be clouded by ambiguous clauses which raise more questions than they resolve. "The careful distribution and balance of powers in the conduct of our foreign affairs under the present Constitution have served successfully for 168 years. The proposals embodied in the 1957 Bricker amendment would radically alter the constitutional scheme by increasing the power of Congress at the expense of the President and by increasing the power of the States at the expense of the Federal Government. Yours sincerely, BETHUEL M. WEBSTER. Mr. WAYNE SMITHEY, CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, Senate Judiciary Committee, The Senate, Washington, D. C. DEAR MR. SMITHEY : I have your letter of June 25 and appreciate the opportunity to comment on the most recent version of the Bricker amendment (S. J. Res. 3, 85th Cong. 1st sess., January 7, 1957). As you know, I have commented on the subject before the Senate committee and also in the American Journal of International Law, and in general these earlier comments apply to the present version. My general opinion is that any amendment on this subject is unnecessary and likely to be harmful. The treatymaking provisions of the Constitution have served well for 168 years. No treaty has ever been declared unconstitutional and I am unaware of any inconvenience which has arisen through the exercise of the treatymaking power. The requirement of Senate consent has proved adequate to protect the rights of the States from invasion as it was intended it should. I am aware that the capacity of the President to make executive agreements has been criticized, but I think if all the circumstances were known in which political agreements have been made, such as the Yalta agreement, it would appear that the executive must have this power when times of emergency arise. Executive agreements rarely have legal application within the territory unless made under express authorization of acts of Congress. In any case, they are clearly subject to control by congressional action in respect to such internal application. To consider the proposed resolution in more detail, it seems to me that section 1 states what is now constitutional law. Any treaty or executive agreement which violated a prohibition of the Constitution would be of no force or effect under the Constitution and all other treaties or international agreements would be made "in pursuance of the Constitution." I do not think it desirable to amend the Constitution merely to reaffirm present constitutional law. Section 2 prevents a treaty from having legislative effect automatically unless the Senate so provides by affirmative action in its resolution of consent. This reverses the present situation which gives automatic legislative effect to a self-executing treaty unless the Senate in its resolution, or the treaty in its original text, expressly provides otherwise. It is worth noticing that in the majority ruling of the court of appeals in the Niagara Power case it is stated that, "The Senate could, of course, have attached to its consent a reservation to the effect that the rights and obligations of the signatory parties should not arise until the passage of an act of Congress." It seems to me that this negative mode of protecting the rights of Congress is preferable to the affirmative mode proposed in the amendment. It is desirable that treaties should normally be the supreme law of the land so that the other parties to the treaty can be assured that it will be executed in our territory. It is only rarely that it might be desirable to make the treaty inexecutable domestically until Congress had acted. It is certainly preferable to impose upon the Senate the burden of reserving the rights of Congress in the few cases where there is some special reason for it. If the proposed amendment were accepted, the Senate might sometimes neglect to make an affirmative statement in its resolutions, perhaps leading to charges of treaty violation by the foreign government when it was found that the treaty, because of such neglect, could not be enforced in the United States. It must of course be recalled that the continued violation of treaties by the States during the period of the Articles of Confederation led to grave difficulties for the United States with other countries, especially Great Britain, and it was for this reason that the clause, making treaties the supreme law of the land, was included in the Constitution. Experience has shown the great value of this provision and nothing should be done to weaken it. Section 3 dealing with executive agreements also seems to me unnecessary. As I have already noted, executive agreements rarely have legislative effect within the United States unless made in pursuance of explicit congressional legislation. I am aware that in the Pink case the Supreme Court suggested that executive agreements might rise to the dignity of a treaty in their legislative effect, but this was dicta. The case turned on the Supreme Court's judgment that certain property in the United States had been vested in Russia and became the property of the United States when relinquished to the United States by the Litvinoff assignment. It has, I believe, always been the law that the Supreme Court could decide what property belongs to the United States. This is not in reality |