How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
Those who serve in government, especially when under attack, are likely to be conscious-somewhat defensively perhaps-of the spirit of the old Spanish proverb: "It is not the same to talk of bulls, as to be in the bullring." The memory of that sentiment has had some bearing on my observations from the safe distance of private life. It has commended a focus on institutional problems-those that transcend partisanship.
One such issue deserves special, constant attention. It is the distribution within our government of authority for foreign affairs.
The country has already struggled at length with this issue. The ordeals of Vietnam and Watergate exposed grave perils to our constitutional structure-an accumulation of vast power in the President's hands, and room for enormous abuse. Congress responded by passing a great deal of legislation, and some might think the issue settled.
I think otherwise. On the basis of four years in the Department of State, I believe the methods of operation now in place leave us poorly equipped to conduct the kind of foreign policy our country requires in a complex, turbulent, dangerous world. We have not yet resolved the dilemma posed by our need to reconcile the imperative of democracy at home with the demands of leadership in the world.
So it is encouraging that the issue is being reopened. Specifically, two leaders in the Congress, the Chairman of the Senate Armed Services Committee, Senator John Tower, and the Chairman of the Senate Foreign Relations Committee, Senator Charles Percy-writing respectively in Foreign Affairs and Foreign Policy-have raised questions about the existing equation.1
As it happens, both Senator Percy and Senator Tower belong to the same party as the President. While they achieved a significant degree of impartiality, the truth is that we have not yet been able to exclude political considerations from these discussions. As a wise man once said, "Where you stand often depends on where you sit."
Thus, it would be quite ordinary for a Democrat to have advocated a stronger presidency for Mr. Carter, while now endorsing greater restraints upon President Reagan. After all, President Carter needed enough power to do what was "right"; President Reagan, on the other hand, needs to be kept from "mistakes."
But as Americans as well as partisans, it is important to think institutionally as well as politically. Perhaps that process will be advanced if people who are no longer in office speak out about how power should be shared. So I propose to downplay, for the moment, my doubts about where President Reagan is leading us, and to concentrate instead on the means by which our course is set-on what role the Executive, the Congress and the courts should play to preserve a rational system of balances and checks among the three branches.
I do this in these pages less to declare conclusions than to invite further discussion-to share some experiences and thoughts on the distribution of power in foreign affairs, and to suggest that all who have been concerned with the issue should now devote additional, careful attention to it.2
Before turning to some thoughts for the future, it is worth looking at the way the courts and the Congress have recently related to the Executive on international matters.
As to the courts, Alexis de Tocqueville once said that, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." That was true of the major issues of presidential power faced in the four years of the Carter Administration. It is quite stunning that five significant foreign policy decisions of that period were challenged in the courts-and were bought to final decisions within President Carter's term or shortly after it ended. The resolution of those issues brought the basic judicial doctrines on foreign affairs authority into sharp focus.
In the early part of his Administration, President Carter spent a great deal of his political capital-which, given his narrow electoral margin, was already in short supply-on gaining approval of the two Panama Canal Treaties and of legislation to carry them out. Indeed, Clark Clifford, perhaps our most sophisticated observer of presidential power, thought he spent too much. The constitutional requirement for ratifying treaties-two-thirds of those present, or as many as 67 out of 100 Senators-is a difficult standard, and the Administration had to struggle for almost every vote. In all, some 21 reservations, conditions or amendments were affixed to the Treaties before they were approved.
Among other things, the ratification struggle required negotiation, with the active involvement of the Senate leadership, of the so-called DeConcini condition, named for the Senator from Arizona. That condition gave the United States the right to take in Panama whatever steps it deemed necessary to reopen the Canal if it were closed. The DeConcini condition inflamed Panamanian nationalism, and it was necessary to work out additional language in the second Treaty providing that the rights reserved to the United States did not allow intervention in Panama's internal affairs.
But even after the Treaties were ratified, the battle was not over. Sixty members of the House of Representatives filed suit challenging the constitutionality of the transfer of the Canal. The Congressmen based their argument on Article IV, Section 3, clause 2 of the Constitution which provides that the Congress "shall have Power to dispose of . . . Territory or other Property belonging to the United States." They contended that this clause proscribes dispositions of U.S. property by self-executing treaties, which are ratified by the Senate only. Rather, they said the action of both Houses of Congress is required.
In upholding the transfer, the Court of Appeals for the District of Columbia Circuit distinguished the property clause from those provisions of the Constitution which are by their terms exclusive, such as the grant to Congress of the power to appropriate funds.3 The court concluded that in the international setting, the treaty power is another constitutionally permissible means of transferring property owned by the United States to other countries. The Supreme Court declined to hear the case.
President Carter's decision in December 1978 to downgrade our relations with Taiwan and recognize the People's Republic of China provided another significant test of presidential power. The President's termination of the Mutual Defense Treaty with Taiwan was challenged on constitutional grounds by Senator Barry Goldwater and others. Their lawsuit contended that since a treaty cannot go into force without the consent of the Senate, the termination of a treaty should also require either the same two-thirds majority of senators present, or else the concurrence of majorities in both the House and the Senate.
The U.S. District Court for the District of Columbia agreed with the Senators,4 but their theory fared badly on appeal. The Court of Appeals for the District of Columbia Circuit held that President Carter acted within his powers. Though citing a variety of factors in its decision, the court relied heavily on the fact that the treaty itself contained a termination clause, which was without conditions or designation as to who could exercise it. The court said the "President's authority as Chief Executive is at its zenith when the Senate has consented to a treaty that expressly provides for termination on one year's notice."5
This "on-the-merits" analysis was rendered unnecessary by the Supreme Court, which ordered that the original complaint be dismissed.6 Four Supreme Court Justices concluded that the case presented a "non-justiciable" political question and a fifth concluded that the case was not "ripe" for review because Congress had not formally challenged the President's action. A sixth Justice concurred in the result, and a seventh dissented from the view that the issue was non-justiciable, agreeing with the Court of Appeals that the President clearly had power to act.
A third court test of presidential power raised the issue of distinguishing between treaties, which require Senate approval for ratification, and executive agreements, which do not. The challenge was to President Carter's 1977 decision to return to the people of Hungary the "Holy Crown of St. Stephen." The crown had been given to Stephen by Pope Sylvester in 1000 A.D., when Hungary became a state in the international system of Europe; thus, it had great symbolic importance to the people of Hungary. In 1945, lest it fall into other hands, the Hungarian Commander of the Crown Guards entrusted the crown to the United States for safekeeping. President Carter's decision to return it prompted opposition from a number of Hungarian nationals and a lawsuit by Senator Robert Dole, who contended that the agreement was either a modification of an old treaty, or else a new treaty, and therefore required approval by two-thirds of the Senate.
In rejecting Senator Dole's action, the District Court for Kansas concluded that this particular transaction "has the indicia of an Executive Agreement."7 On appeal, however, the Court of Appeals for the Tenth Circuit, relying on Baker v. Carr, the landmark case on "political questions," held that the controversy was of a political character not susceptible to judicial handling.8 It said the court had "no way of ascertaining the interests of the United States, or of its people, in the controversy." The Supreme Court did not hear the case.
A fourth case involved the Iran hostage settlement agreements, the Declarations of Algiers, and the disposition of billions of dollars in Iranian assets which had been frozen by President Carter in November of 1979, after the American Embassy in Tehran and the Embassy's personnel were seized. The hostage settlement provided that a portion of those assets would be returned to Iran, and that the underlying claims asserted against those assets would be settled by an Iran-U.S. Claims Tribunal, out of a replenishable security fund provided by Iran for that purpose.
In formulating the hostage agreements, the U.S. negotiators had been very conscious of the limits of presidential power. Yet the negotiating situation and the time constraints seemed to rule out action by the Congress. Therefore, it was vital to cast the agreements in a way that would permit action by the President alone. But a company that had perfected a claim against Iran subsequently challenged the President's action, claiming it exceeded his powers.
The President was upheld unanimously by the Supreme Court.9 The central questions were whether the President could, on his own, nullify attachments, order the transfer of Iranian assets, and suspend the enforceability of claims against Iran in U.S. courts. While the Court found specific statutory authorization for the President's treatment of the assets, it found none for the suspension of claims in U.S. courts. Nevertheless, it said that the statutes indicated Congressional acceptance of wide leeway for the President to settle claims against foreign countries. It was crucial that "Congress has implicitly approved the practice of claim settlement by executive agreement" by, among other things, adopting the International Claims Settlement Act of 1949 to allocate and distribute funds resulting from such settlements. This was part of a long history of Congressional acquiescence in such settlements without the advice or consent of the Senate.
It also was important that the hostage settlement agreement provided an alternative channel, the Iran-U.S. Claims Tribunal, for settling the claims. And, significantly, the Court noted that the settlement was "a necessary incident to the resolution of a major foreign policy dispute between our country and another."
The fifth case involved Philip Agee, a former employee of the Central Intelligence Agency. It is widely known that members of the CIA operate abroad "under cover." Mr. Agee adopted the practice of publishing the names of Americans abroad who, he said, are employees of the CIA. Every person so identified became a candidate for expulsion and sometimes a target for assassination. After much deliberation Secretary of State Cyrus Vance revoked Agee's passport, and Agee challenged his power to do so.
Agee contended, first, that the regulation under which his passport was revoked exceeded the power delegated by the Congress in the Passport Act of 1926. He also maintained that the revocation of his passport impinged upon his constitutional rights, in particular his Fifth Amendment due process right and right to travel and his First Amendment right of free speech.
In 1980 the lower courts agreed with Agee's contention; in 1981, however, the Supreme Court reversed.10 It noted a long history of Executive discretion in granting, withholding or revoking passports, and relied on subsequent Congressional enactments in the passport area as evidence that Congress had approved regulations asserting authority to withhold passports on national security or foreign policy grounds. On the constitutional claims, the Court held that the right to hold a passport-involving "the freedom" of international travel as opposed to the different "right" to travel domestically-is subordinate to national security and foreign policy considerations and thus subject to reasonable governmental regulation. And the Court held that Agee's campaign against the CIA involved not only speech, but also conduct, which is not afforded First Amendment protection.
In all five of these cases, the validity of an action of the Executive Branch in a foreign policy matter was challenged. And in each case, the challenge was rejected by the courts. While the judicial reasoning differed from case to case, the outcome in all instances was to let the President have his way.
It is evident that cases involving foreign affairs raise, in the words of Justice Rehnquist in the hostage settlement case, searching questions about "the manner in which our Republic is to be governed." They remind us that we have a government characterized by what Alexander Hamilton called "vibrations of power." The cases came to the courts for decision precisely because the distribution of authority in our government is not exactly defined.
The results reflect the tradition of judicial deference to Executive action in the field of foreign affairs. As Chief Justice Burger said in the Agee case, "Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention." When a foreign policy action is challenged, courts exhibit an almost instinctive wariness. They readily question the "standing" of the parties, resort to the "political question" or "ripeness" doctrines, or search for an indication of Congressional authorization.
Courts may be particularly hesitant to intervene where, as in three of the cases mentioned, the suits are commenced by individual Congressmen or small groups of members, rather than by Congress as a whole. In such circumstances, judges may feel that the lawsuits reflect the failure of those bringing the actions to sustain their viewpoint in the Congress.
On foreign policy matters, the deference of the courts to the President is, I think, healthy. We should expect, and welcome, somewhat closer judicial scrutiny of the other branches when, as in the Agee case, First Amendment issues are involved. But as a general proposition, the judicial system is not well suited for a major role in the foreign policy realm.
However, looking at the relationship between the President and the courts scarcely begins the analysis. It is revealing that all of the five court cases involved the allocation of power between the President and the Congress. And that is where the real fight has been.
Advocates of Congressional predominance on the one hand, and of Executive preeminence on the other, generally have found the Constitution to be clear and unambiguous on the issue. Each side has found the Constitution unmistakably in favor of its own view.
Congress, after all, has the authority under Article I, Section 8, of the Constitution to declare war, raise and support armies, and provide and maintain a Navy, as well as having the ultimate power of the purse under Article I, Section 7.
But, on the other hand, Article II, Section 2, denominates the President Commander-in-Chief of all the armed forces. And only the Executive can negotiate with foreign countries-even if the Senate must "advise and consent" when formal treaties are reached.
The reality, in fact, is much like Ambrose Bierce's definition of politics-"a strife of interest masquerading as a contest of principles." For the Constitution is, in fact, ambiguous. Reference to the text-even to the framers' descriptions-cannot fully settle the matter. The framers left a great deal of room for their successors to adopt methods and apply values of their own.
Therefore what we really face is not a quarrel about what the Constitution means, but about what, within a broad constitutional framework, our national interest requires. We cannot simply interpret; we have to think. And we have to respond to experience.
For most of our history those processes-together with healthy dollops of inertia and accident-led to a steady accumulation of power in the President's hands. Prior to World War II, for example, the major Congressional interventions in foreign policy-the repudiation of the Treaty of Versailles, and the neutrality laws-raised lasting concern about Congressional competence in this realm. With some prominent exceptions, members of Congress tended to think parochially; they found it hard to think globally.
Then after the war, the mantle of global leadership descended on us, and under unprecedented international conditions. Now we teetered perpetually on the edge of crisis. Our new role clearly required more international activity than Congress could closely supervise, clearer articulation than hundreds of separate voices could provide, more coherence than hundreds of independent thinkers could muster. Quick decisions and prompt policy adjustments often were required-hardly the specialties of deliberative bodies such as the Congress.
We also saw that we faced adversaries with unitary systems, apparently unfettered by any need to consult or concur. The Soviets, it seemed, could move quickly, ruthlessly, and in secret. At home, Congressional involvement risked delay, uncertainty and leaks.
Thus formed our dilemma. Many asked whether we could any longer afford to have the Congress, or the public, fully informed and routinely involved in national security decisions. The deeply disturbing implication of that perspective, however, was that it impinged upon our system itself. For neither absolute secrecy nor unfettered Executive supremacy, in any area, is consistent with democratic ideals.
Nor, we soon discovered, do they necessarily produce good policy. We uncovered that particular reality in the jungles of Vietnam-in a long, costly, divisive, frustrating conflict that led to an abrupt reversal of the historic trend toward Executive power. As the war dragged on, members of Congress felt themselves to be deceived on central issues-such consequential matters as the Gulf of Tonkin Resolution, presidential intentions to escalate, the estimated cost of the war and taxes to pay them, bombing in Cambodia and Laos, enemy troop strengths and body counts, the dependability of our South Vietnamese ally, and our chances for success.
The division between the Executive and the Congress was worsened by the fact that the war effort was commanded by two Presidents who were uncommonly given to secrecy, jealous of their power, and impatient with dissent. Perhaps largely as a result of these aspects of presidential character, even many members of Congress who supported the war also simultaneously supported broad steps to curb the President's power.
Finally, the rivalry gained intensity as a consequence of expansive constitutional premises originating in the Executive Branch-the Johnson Administration's notion of a shrunken world, giving the President the right to order troops into battle literally anywhere without looking to Capitol Hill; and President Nixon's theory that the President, as "Commander-in-Chief," could continue an existing war indefinitely, and even extend it geographically, so long as the purpose was to protect troops already engaged.
It was in response to such trends that the Congress moved forcefully in the 1970s to reassert its prerogatives and reclaim its power. Specific steps included a right to veto arms sales above a certain size; country-specific prohibitions on aid; limitations on CIA operations abroad; a requirement that executive agreements with other countries be fully reported on Capitol Hill; and the War Powers Resolution of 1973, under which, among other things, Congress must be informed within 48 hours when U.S. troops are sent into hostile situations, and the President must then gain Congressional approval within 60 days or else withdraw the troops.
Along with all the new procedures and prohibitions, Vietnam and related abuses left behind a new ethic on Capitol Hill. The Executive, it says, is not to be trusted. Deference is outdated. In the new ethic, the Congressional role must be one not simply of oversight or advice or basic design, but of active engagement at every stage.
Thus major arms transactions-such as those in the Middle East-routinely are fought out on Capitol Hill. The Congressional veto, reversing the traditional roles of Congress and the President, is imposed with greater frequency. Policy and plans in troubled areas are constantly ventilated, and our involvement is probed, publicized and pared down by Congressional resolutions. Major treaties-such as the Panama Canal Treaties and SALT II-are not only analyzed and debated, but renegotiated in the Senate.
Adverse consequences litter the foreign policy landscape. For example, when treaties are negotiated, what confidence can the other side have that compromises it makes will not be reopened in the Senate, and further demands made? Some would say the logical next step is for our negotiating partners to hold back some concessions in negotiations with the Executive, so they have something to trade away in negotiations with the Senate.
In granting aid, to take another example, Congress often delays so long and then imposes so many restrictions as to assure that its objectives will be unachievable and its fears self-fulfilling. In the case of Nicaragua in 1979, when there was still a chance that we could influence the direction of the Sandinista government, it took months to gain authority from the Congress for a modest aid program, and even then it was hedged with debilitating conditions. Educators, medical personnel and others from Cuba, meanwhile, were on the scene within hours.
My concern is that a great nation simply may not be able to operate in the way we have and still advance its interests successfully in a complex, disorderly, dangerous world.
Based upon these general observations, I have been drawn to the conclusion that we would be well-served by a new "compact" between the Executive and the Congress on foreign policy decision-making, based on mutually reinforcing commitments and mutually accepted restraints.
The premise of such a compact would be that the separate branches have differing characteristics, and thus distinct capacities. And the compact's purpose would be to have each branch respect and defer to the unique capabilities of the other, so that instead of magnifying the weaknesses of each, we would embrace the strength of the whole. The arrangement would recognize that the Presidency and the Congress were not designed to mirror each other, or to compete over the same functions, but to complement each other, each bringing unique qualities to bear on the decisions they were expected to share.
The compact would embrace a number of principles.
First, it would affirm the President's basic authority to articulate and manage our foreign policy.
As a fundamental precept, the compact would call for restraint on the part of the Congress-for Congress to recognize and accept the responsibility of the Executive to conduct and manage foreign policy on a daily basis. To other nations, it is exasperating and at times even incomprehensible that our system permits, even encourages, contests over the President's power to manage in the foreign sphere. Even when such challenges are ultimately defeated, they risk misunderstandings here and abroad about the dependability of actions by the United States. Our reputation for reliability is squarely at stake.
The growing complexity of the global agenda makes it increasingly important that the Executive have the authority to make and implement a coherent foreign policy. The simple truth is that if the Executive is immobilized in rancorous debate and struggles over power, that circumstance comforts our adversaries, confuses our friends, and cripples our country.
Vietnam and Watergate demonstrated that the Executive can act imprudently and dangerously, and can overreach its authority. However, those episodes did not, in the process, obviate the inherent limitations on the capacity of the Congress for the day-to-day management of foreign policy. The limited time members of Congress can devote, the influence of short-term political pressures, the delays associated with collective decisions, the multiplicity of voices and purposes-all of these factors do still exist on Capitol Hill. So the answer to presidential error and abuse is to straighten out the Executive, not to substitute the Congress.
What is needed most of all is a new operative attitude on Capitol Hill. It is essential that Congress recognize that while full information and consultation are essential and broad policy should be jointly designed, attempts to dictate or overturn Executive decisions and actions are extraordinary and costly remedies. They should be employed rarely, in extreme circumstances, and not routinely-for they have consequences far beyond the immediate issue at hand.
In carrying out its part of the compact, the Congress might also move to consolidate its foreign policy jurisdictions. Secretary Vance and I estimated that we spent at least 25 percent of our time testifying, preparing to testify, or otherwise engaged in relations with Congress. Perhaps that could be scaled back-not to withhold information, but to limit the number of times it has to be retold before various committees and subcommittees in each House.
In this context, it is pertinent to note another source of controversy on foreign policy decision-making: that is, the recurrent struggles within the Executive Branch between the State Department and the National Security Adviser. (This controversy spills over into the Executive-Legislative struggle because the National Security Adviser is not confirmed by the Senate and, as a personal assistant to the President, cannot be called to testify on Capitol Hill.)
In my view, the Secretary of State and the National Security Adviser play vital but markedly different roles, which should be complementary and not competitive. The Secretary of State should be the architect of our foreign policy and sole authoritative spokesman other than the President. The National Security Adviser should play an inside role, coordinating the many Cabinet agencies which are involved in foreign affairs decisions, obtaining prompt resolution of conflicts between the agencies, and insuring effective follow-through on decisions once they are made by the President. He should be able to offer his substantive advice privately to the President, but the Secretary of State should be kept informed of the advice the President is getting. The National Security Adviser should shun public attention, eschewing television appearances, press briefings and diplomatic missions abroad.
Second, the compact would require that the Executive cooperate fully with the Congress and assist it in fulfilling its legitimate role.
In practice, the foreign policy compact should reflect the distinct functions of the branches. The Congress, through the authorization and appropriations process, has and must retain a role in setting the basic direction of policy, and in apportioning funds among various international functions and different capabilities.
Moreover, the Congress often is more able than the Executive to sense and reflect changes in popular thinking, and to identify both the congruities and the disparities between directions in national policy and trends in public opinion.
Congress can be an effective forum for testing ideas. Through hearings, as well as through the mails, it is a route of access for the public to the government. And since it is broadly and continuously representative of the nation as a whole, the Congress is ideally situated to help design the broad outlines of foreign and security policies that will be able to sustain public support.
These functions are distinct, it seems to me, from the Executive's responsibility to manage. Under the compact I envision, along with his managerial function, the President would be obliged to cooperate fully with the legitimate functions of the Congress. As part of that, the Executive would also recognize its vital responsibility to assure that Executive actions comport with the laws Congress enacts.
That is only common sense in any case. As we have seen, a distrustful Congress has ample weaponry in any conflict between the branches-the power to withhold funds, to circumscribe Executive discretion, to hold harassing hearings, to reject or rewrite treaties or to deny confirmations, and in various other ways to undercut the Executive's authority.11 Therefore, out of self-interest, the President should be sensitive not only to what the Constitution permits, but to what comity requires. It is in the interest of both branches to avoid the use of blunt instruments.
The obligation of comity holds especially for sharing information and for consultation, so that Congress can share in the broad design of policy and oversee its execution. There are cases, of course, where Executive privilege is appropriate, and where sensitive information must be closely guarded. But they should be understood as rare exceptions to the rule. In my own experiences, I recall very few instances in which the added risk of a leak on Capitol Hill outweighed the potential damage that excessive secrecy would cause. During the 444 days the hostages were held, I provided periodic secret briefings on Iran and Afghanistan to the Senate and House leadership-sometimes daily, usually twice a week-and there was never a significant violation of the confidential relationship that was established.
The President's responsibilities for scrupulous adherence to the law are heightened, not lessened, by judicial deference in foreign policy. Irrespective of the courts, it is the President's duty, under Article II, to "take care that the laws be faithfully executed." It is also worth remembering that, while the courts have established doctrines which permit deference in foreign affairs, those same doctrines are flexible enough to permit judicial interventions if the Executive overreaches. The President owes an obligation to the institution of the presidency, and to the country, to build and preserve the kind of trust and common purpose that will permit the Executive to function-to lessen the rationale for the other branches to intervene through legislation or lawsuits.
El Salvador provides a current example. As a rule I am highly skeptical of country-specific restrictions on aid-even for the best of purposes. They cannot account for changed circumstances, and in a world where events happen with breathtaking speed, that may be a disqualifying flaw.
But doubts about such restrictions do not justify the Executive in being less than faithful to what a country-specific law requires-as was the case when President Reagan certified human rights progress in El Salvador which, by all other accounts, simply had not taken place. Our Ambassador to El Salvador, Deane Hinton, a career diplomat, reportedly told an audience of businessmen in El Salvador in February that the certification requirement was "tonto," which translates as "foolish" or "stupid." The New York Times report on that remark then quoted an unidentified embassy official as confirming that the presidential certification was not exactly true-that the certification requirement "forces the President to overstate things in order to get the aid that must be sent. What choice did we have?"12
At least two other choices suggest themselves-either to observe the law, or to seek to have it changed. For a questionable certification strains credibility, mocks the Congress, and invites a return to disabling war between the branches. It violates the foreign policy compact I believe is so vital.
Along with the functional approach discussed above, the depth of Congressional involvement and the intensity of its oversight might also be varied depending upon the nature and the gravity of the issue. At the most fundamental level, a government makes no more fateful decision than the decision to go to war. The President should want to share that decision with the Congress. When the President and the Congress stand together, the nation's commitment is clear.
On the other hand, steps short of war ought to require less collaboration and permit more Executive discretion. To be sure, a decision to provide arms to a country could lead, as in Vietnam, to a combat involvement. But it is not inevitably the same thing. Military aid or sales and other steps short of combat can be considered on their own terms-managed by the President, within general policy guidelines jointly designed. Indeed, after Vietnam, both the Executive and the Congress are probably more inclined to treat our security relationships not as slippery slopes, but rather as staircases, with delineated landings from which we must choose, deliberately, either to deepen or lessen our involvements.
Third, the compact should be accompanied by a renewed spirit of bipartisanship in foreign affairs.
Over the last three decades we have seen a steady and dangerous erosion of the bipartisanship of the period immediately after World War II. More and more, Democrats may be tempted to find satisfaction in a Republican foreign policy going awry, or vice versa. Yet the "outs" bear the practical consequences, if not the political ones, along with everyone else.
Unbridled partisanship is unwise under any circumstances; it is especially risky when, as now, one party controls the White House and another controls at least one House of the Congress. This has been recognized as an element in the potential "deadlock of democracy."
The immediate post-World War II period was a high point for bipartisanship. The formulation of the earlier era, "Politics stops at the water's edge," may sound utopian now, and certainly we cannot exclude foreign policy from our political debates. We can, however, temper them with a recognition that in this arena careless words or obstructionist tactics can have widespread repercussions. As Senator Percy has said, "despite the obstacles to strengthening bipartisanship, it must be achieved if the United States is to maintain a leadership role in the world."13
Fourth, the compact should recognize the essential role of sufficient resources in an effective foreign policy.
No matter how free the Executive hand to manage foreign policy, the compact will be disserved, and our diplomacy will be hamstrung, if the necessary funds are denied. Over the past 20 years, for example, while our stake in orderly worldwide economic development has grown, our expenditures for foreign assistance have been cut roughly in half in real terms. The urgency of this problem is manifest in the fact that in fiscal 1980 and 1981 no foreign aid appropriations at all were passed. Continuing resolutions, at frozen and inadequate funding levels, had to be used instead.
Diplomatically, meanwhile, we deal with 53 more countries than we did in 1960, and we work on more and harder issues-but with fewer professional diplomats than we had in 1960. We currently budget, for our entire diplomatic establishment, less than one percent of what we spend on defense. Yet our security depends increasingly upon our diplomacy, as well as upon our capacity to employ force.
Our diplomacy would be further disabled by the current effort to slash the educational exchange programs that have fostered so much understanding of our country among national leaders, journalists, educators and others in foreign lands. In my own experience in diplomacy, I recall many times being impressed by the depth of a foreign counterpart's grasp, if not necessarily acceptance, of the U.S. position, only to learn that he or she had participated in one of our exchange programs.
When we shortchange our diplomatic programs we undercut our foreign policy every bit as effectively as binding the President up in a procedural straitjacket. We increase the probability that instead of celebrating successes in foreign affairs, we will have to keep assigning blame for the failures. And a big share of the blame lies in expecting a global, great-power foreign policy for a third-rate price.
Fifth, as we proceed with the compact, we must nevertheless be realistic enough to recognize that even if we can reach a more effective and agreeable arrangement, we will not match the alleged efficiency of undemocratic regimes.
We should not try. Rather, we should celebrate our democratic traditions, and resolve to make them work better.
The fact that we make many of our national decisions by voting, by the choices of our people and their elected representatives, unquestionably does leave us at some disadvantage in facing adversaries ruled by decree. Democracy can be cumbersome. It can mean delay, and there can be discontinuity when the people change their leaders.
Though we can adjust our system to make it work more smoothly, some inefficiencies are plainly inherent. But they are also important. For they guarantee to our own people and exemplify to the world our commitment to the ideals which are the aspiration of most of the world's people-in particular, the ideal that the people should share in decisions affecting their lives.
Despite its random elements, our system was not randomly designed. The tensions among the branches were quite deliberately incorporated, in large measure to protect the people and safeguard popular rule. The discretion, the tensions, the "vibrations," are the hallmarks of a system of government that could endure, evolve and thrive for almost two centuries.
The best time to bring such a compact into operation would be the commencement of a new Administration after a national election, or perhaps after a Congressional election. The sense of unity and national purpose which usually marks such periods would provide the best environment for seeking the mutually reinforcing commitments and mutually accepted restraints described above. The forum for confirming such undertakings could be a meeting between a broad range of Congressional leaders and the President and key national security officials, perhaps somewhat comparable in composition to the day-long meeting held by President-elect Carter at the Smithsonian Institution in December 1976. Thereafter, a small group (perhaps the Secretary of State and bipartisan leaders from both Houses) could be charged with monitoring observance of the compact and identifying potential violations.
If the general concept of the compact is thought to have merit, it could usefully be ventilated by a special hearing of the Senate Foreign Relations Committee or the House Foreign Affairs Committee. Or one of the many institutes dedicated to foreign affairs might draw together a group of scholars and public officials to probe its premises and discuss implementation.
Whatever the next step, I believe such a new compact is needed, not to rearrange our system, but to refine it slightly, so that the framers' ingenious plan may continue to both embrace democracy and effectively defend it.
1 John G. Tower, "Congress Versus the President: The Formulation and Implementation of American Foreign Policy," Foreign Affairs, Winter 1981/82; and Charles H. Percy, "The Partisan Gap," Foreign Policy, Winter 1981/82.
2 The distinct perspectives of the Executive and the Congress have been amplified in a number of important articles including Lee H. Hamilton and Michael H. Van Dusen, "Making the Separation of Powers Work," Foreign Affairs, Fall 1978; Douglas J. Bennet, Jr., "Congress in Foreign Policy: Who Needs It?" Foreign Affairs, Fall 1978; Lloyd N. Cutler, "To Form a Government," Foreign Affairs, Fall 1980; and Charles McC. Mathias, Jr., "Ethnic Groups and Foreign Policy," Foreign Affairs, Summer 1981.
3 Edwards v. Carter, 580 F.2d 1055 (D.C. Cir. 1978) cert. denied, 436 U.S. 907 (1978).
4 Goldwater v. Carter, 481 F. Supp. 949 (1979).
5 Goldwater v. Carter, 617 F.2d 697, 708 (D.C. Cir. 1979).
6 Goldwater v. Carter, 444 U.S. 996 (1979).
7 Dole v. Carter, 444 F. Supp. 1065, 1070 (1977).
8 Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977). See Baker v. Carr, 369 U.S. 186 (1962).
9 Dames & Moore v. Reagan, 453 U.S. 654, 680, 688 (1981).
10 See Agee v. Vance, 483 F. Supp. 729 (1980), affirmed in Agee v. Muskie, 629 F.2d 80 (1980); reversed in Agee v. Haig, 453 U.S. 280 (1981).
11 For example, in 1975, given Soviet support for one faction in Angola, there was a strong Executive Branch impulse to intervene in that former Portuguese colony in Africa. With memories of Vietnam still so fresh, however, there was not much prospect that Congress would approve. To bypass that obstacle, a major covert operation was planned. The sequel was a flat Congressional ban on any involvement in Angola-and more impetus for strict limits on, and broad Congressional review of, covert operations anywhere in the world.
12 The New York Times, February 26, 1982, p. A6.
13 Percy, op. cit., p. 45.