TREATIES AND EXECUTIVE AGREEMENTS WEDNESDAY, APRIL 8, 1953 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to recess, at 10 a. m., in room 424, Senate Office Building, Senator William Langer, chairman, presiding. Present: Senators Langer, Watkins, Butler, and Smith. Also present: Senator Bricker; Wayne H. Smithey, subcommitee counsel. The CHAIRMAN. The committee will come to order. This is the time set for the appearance of Mr. Wilson. He said he wanted to testify here today. Is Mr. Wilson here or anybody here representing him? Mr. NASH. I am here, Mr. Chairman, to represent the Secretary of Defense who would be here himself if it were not for the fact that the National Security Council is meeting on a very important matter this morning. He has asked me to appear on his behalf in this very important matter of Senate Joint Resolution 1. The CHAIRMAN. We are very glad to have you here, indeed. Go right ahead. STATEMENT OF FRANK C. NASH, ASSISTANT SECRETARY OF DEFENSE, ACCOMPANIED BY ROGER KENT, GENERAL COUNSEL, DEPARTMENT OF DEFENSE Mr. NASH. I have a prepared statement, Mr. Chairman, which I believe has been distributed. With your permission, it is not very long, I would like to go through it. The CHAIRMAN. Go right ahead. Mr. NASH. Mr. Chairman and members of the committee, I would like first of all to express my appreciation for this opportunity to give you the views of the Department of Defense with regard to Senate Joint Resolution 1. Like its predecessor in the previous Congress, Senate Joint Resolution 130, this proposed amendment to the Constitution is of vital interest to the Department of Defense. You know the important part that treaties, executive agreements, and other international arrangements play in the development of an integrated defense system for the free nations of the world. The organization, supply, and deployment of an effective system of defense for these nations can no longer depend solely on the old-fashioned military alliance. Countries can no longer merely agree to stand together and let it go at that. Effective use of manpower, raw materials, Mr. NASH. Maybe that is all it says, Senator. The difficulty with even the plainest language is that it means different things under different circumstances to different people. That means to me that we would be unable to undertake any of the negotiations that are of particular interest to the Defense Department except to the extent that Congress has prescribed by law permission for us to go ahead. Senator SMITH. Now, is it not conceivable that if Congress is going to vote billions of dollars for defense and authorize the Defense Department to spend those billions, by the same token they are going to pass such law as will be necessary for the Defense Department to implement its activity and to spend that money? Mr. NASH. It is the timing of the enactment, Senator. My main thesis, sir, is that all these things we want to do in defense we bring to Congress, we have to bring to Congress at one time or another. The negotiation of a base agreement, for example, is not of any help to us in defense until Congress gives us the money to go ahead and build it and we have had quite a lot of discussion with Congress as to this base going forward and that one. I will go back to the prepared statement later, but I have had in the last several years quite a number of international negotiations to deal with, representing the interests of the Defense Department. Even with the best good will of the other fellows across the table from you-and it is not just one but there are usually representatives of 14 countries on these NATO things, even with the best of good will and cooperation-of everybody around the table, they are so complicated that if we do not have pretty complete flexibility in the negotiation stage, we cannot get a good deal for the United States. The other fellows do not have those shackles on them. Senator SMITH. Up to now you do not think anyone has gotten a very good deal in the United States over there? Mr. NASH. Yes, sir; I do. Senator SMITH. I do not agree with that. Mr. NASH. I think we have had a good many good deals. Senator SMITH. I think we have been taken advantage of right and left by everybody. I do not know that this would have helped it. But when you say we have gotten a good deal, I do not know where the good deal comes in. Mr. NASH. If I could specify one, we have gotten a good deal out of our NATO partners in getting them to waive tax laws, a really good deal. I think we would have had a difficult time asking the State of Arkansas to waive a local tax that it applies to activities conducted in Arkansas. Yet, we have gotten that in countries like France. Senator SMITH. Are you speaking of the tax that the French Government levied of $13 per head for every soldier that we have in France? Mr. NASH. They have waived that. Senator SMITH. Do you think they should not waive that? Mr. NASH. I do, indeed. Senator SMITH. Do you think the State of Arkansas would attempt to levy a tax per head on soldiers to defend Arkansas? Mr. NASH. You pick an absurd example. We are, for example, constructing an airbase in France, with a local tax on the fellow building it, if the burden of that tax falls on us, we do not want to pay for it by United States dollars but to ask us to waive a local use tax on a Frenchman is asking a good deal. We got that good deal. If you want to let me go through a long list of negotiations we have conducted, we have gotten, I think by and large, pretty fair shake for the United States. I do not think they are putting much over on us when you consider what we are trying to get. We are not over there— and I am not going to make a flag-day speech on this, but you are touching me to the quick when you say we have been taken in at every turn on negotiations with people who are our partners—we are in NATO to make it a front line of defense for the United States. That is what we are there for. We are not there to save France or Europe. We are there to fight, we hope, as far away from the United States as we can. Senator SMITH. Do you think they think so? Senator SMITH. You mean some of them do. Senator SMITH. You have seen the signs, "Go away, American" and "Ridgway, stay away from here"? Mr. NASH. I have seen those, and I was unhappy to see them. I have also seen our troops and French troops working on joint maneuvers, and working very well. Senator SMITH. What I was trying to say, Mr. Nash, was what real relationship does your argument, being advanced now, have to the real subject under discussion here? I know we have a lot of general statements. I was astonished at what Mr. Dulles said according to newspapers about this situation, because I cannot see how this could hurt the Defense Department or any department of Government that wishes to conduct itself in accordance with law under the Constitution. Now, if it does, I would not be for it. Then, of course I am sure that Senator Bricker feels the same way, because we have this other language here suggested by Senator Watkins' bill and I am confident that the man who signed this bill would take whichever language appeared to be most feasible and most easily workable. But the arguments I read in the paper, when I was not here, have been on this general theory, this is going to injure somebody, to stop the work of the United States Government, and I cannot see it. I want you to point it out specifically how it is really going to. Mr. NASH. Senator, I never undertake to defend the thesis that a piece of proposed legislation that has been signed by sixty-odd Senators has its avowed purpose to interfere with the best interest of the United States. I do not say that at all. I simply say here that the purpose of this, the objective of this, may be a very sound and probably is a very sound objective, indeed, but the method by which it is sought to accomplish we think in Defense would give us serious difficulty. If I cannot make out this case by the time I have finished with this statement and relate it to this resolution, I will be glad to respond to your questions, sir. Mr. SMITHEY. Is it really the method you are quarreling with or the language? Mr. NASH. It is the method and language both. Mr. SMITHEY. Are you opposed to any constitutional amendment then, which would do what is designed to be done here? 30572-53--61 Mr. NASH. Again I would like to say this in response to all questions along that line, that the approach to the problem as to whether it should be by constitutional amendment or by some other method is a line of questions I would prefer be directed to those who know what the appropriate answer is. Speaking just from the Defense Department point of view, I would be giving you only a personal opinion that would not be worth a great deal. I cannot say whether or not any constitutional amendment would be acceptable. It is a question of seeing what one would be proposed. There I think the judgment of the Attorney General and the Secretary of State would be the appropriate judgment for you, sir, instead of mine. Mr. SMITHEY. I simply sought to get your opinion on the record, inasmuch as you had indicated you did not like the method. Mr. NASH. Well, if I were by my answer to be restricted just to methodology, I would like to expand it. I have just finished No. 8 in the enumeration of defense matters which are subjects of international agreement or arrangement. I will go on to the ninth, which is the effect of customs laws and procedures upon equipment and materials imported by a visiting force. 10. The furnishing of military assistance to foreign countries pursuant to programs such as the mutual security program. 11. Local procurement by a visiting force and other programs of foreign procurement. 12. Allocation and purchase of strategic materials. 13. The juridical status of visiting forces and of international commands. 14. The responsibility for claims arising out of the activities of visiting forces. 15. The applicability of local tax laws to members of visiting forces. 16. The detail of military missions to assist foreign governments. 17. The right of the aircraft of one nation to fly over the territory of another. 18. Embargoes. 19. Patents relating to manufacture of war materiel. 20. Electronic navigation systems and communication systems. 21. Mapping and map exchange. 22. Dock sites and depots. 23. Disposition of war dead. 24. Training and instruction. The CHAIRMAN. I notice you do not say anything about the enforcement of criminal and civil law. Mr. NASH. I think, sir, that would be involved in this one at the bottom of page two, the juridical status of visiting forces and of international commands. The CHAIRMAN. You testified before the Foreign Relations Committee yesterday. You remember we took up at that time that here is a boy from the United States who is drafted and he is taken over there to a country where they do not have trial by jury, where they do not have bail. Now, are you in favor or are you not in favor of boys from the United States, drafted, going into a country where that kind of thing is done without the Congress of the United States having some sayso about it, just because some people never heard of it, meet ing around this table, representing 14 nations and signing up an agreement? Are you in favor of that or do you believe that ought to go back to Congress and have the Congress decide whether they are going to send their boys over there to be tried without a jury? Mr. NASH. Senator, I think by virtue of the very fact that we were in a hearing on that question yesterday morning indicates that that cannot go into effect until the Senate of the United States has given its approval to it by two-thirds majority. The very fact we were there yesterday and you were raising those questions and other members of the committee were raising those questions indicates my conviction that that sort of thing must have the approval of Congress or at least of that body of Congress, the upper body, the Senate, that under the Constitution has the treaty laws. Senator SMITH. Why should these not have the approval of Congress then, the things that will bring those conditions about? Mr. NASH. Senator, to the extent that any of these things attain the importance of a treaty or even of an executive agreement or of an arrangement, I would say there is not a single thing listed here that we have not at one stage or another consulted with Congress, laid it before Congress, both Houses, in order to get the appropriations. As I remarked a little while ago, the review of practically everything the Defense Department does in the negotiation field comes before the Congress' scrutiny in conjunction with the necessity of our getting the funds to carry it out. I cannot think in 22 years of various and sundry discussions of a single problem that has not been laid before Congress in one form or another, from my own personal experience. The CHAIRMAN. I just want to give some of the statements of some of our boys who were in World War II. They said you went in and spent on one island over $100 million fortifying it. Then the moment the World War was over you pulled down the American flag and put up the British flag, turned the whole thing over to Britain. You certainly did not consult with Congress when you did that. Mr. NASH. I am sure Congress heard about it one way or another, Senator. Senator SMITH. Is that not one of the difficulties, that Congress a great many times does not hear about these things until after they have been done and done to the detriment of America in many instances? Mr. NASH. That may happen, Senator. Senator SMITH. I fully appreciate what an enormous problem you have in the Defense Department, I appreciate what Mr. Wilson is trying to do fully, but from what people have told me and what I have seen, I certainly think there is every reason for Congress to legislate or to be consulted before certain things are done. Mr. NASH. That is the whole case right there, Senator, before certain things are done. But if we have to come to Congress before we can make a move and not just consult with Congress and the committees but get an act adopted by Congress Senator SMITH. None of this means that. Mr. NASH. We worry that it does. We worry that section 4, "to be prescribed by law," means that. Senator SMITH. That does not mean that at all. It means that Congress is to do what the Constitution states it should do, to legislate |