[Congressional Record Volume 140, Number 109 (Tuesday, August 9, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 9, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
  THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS 1994 AND 1995

                                 ______


                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                        Tuesday, August 9, 1994

  Mr. HAMILTON. Mr. Speaker, as Members are aware, Congress passed and 
the President signed into law H.R. 2333, the Foreign Relations 
Authorization Act, fiscal years 1994 and 1995, earlier this spring.
  On April 30, 1994, the President issued a statement accompanying the 
signing of that act into law. I had several concerns about that 
statement, particularly with respect to several broad assertions of the 
constitutional power of the executive branch in the conduct of foreign 
affairs. I have detailed those concerns in a letter to the President 
which, along with the President's signing statement, follows:

                                         House of Representatives,


                                 Committee on Foreign Affairs,

                                   Washington, DC, August 8, 1994.
     Hon. William J. Clinton,
     The President, The White House, Washington, DC.
       Dear Mr. President: Before the Committee on Foreign Affairs 
     considers the Administration's request for a technical 
     corrections bill for the Foreign Relations Authorization Act, 
     Fiscal Years 1994 and 1995, (Public Law No. 103-236), I 
     wanted to take this opportunity to respond to your statement 
     of April 30, 1994, which accompanied your signing the act 
     into law.
       I want to bring to your attention concern aspects of your 
     signing statement that cause me and several of my colleagues 
     concern. First, I do not agree with the broad assertions of 
     the constitutional power of the executive in the conduct of 
     foreign affairs which are expressed in your letter. Second, I 
     note some inaccuracies and inconsistencies in the 
     administration's position as reflected by points raised in 
     your signing statement.


                      i. constitutional questions

                          A. General concerns

       You state that ``Article II of the Constitution confers 
     Executive power of the United States on the President alone'' 
     and that this power ``includes special authority in the area 
     of foreign affairs.'' I am concerned that you view certain 
     provisions in the legislation as somehow undercutting the 
     authority of the executive. It is my view that these 
     provisions accurately reflect the powers that the 
     Constitution provides to the Congress.
       While on a practical level the executive branch handles 
     day-to-day implementation of U.S. relations with foreign 
     countries, the Constitution is explicit on the role of the 
     Congress in foreign affairs. The President's authority to 
     make international agreements without the consent of the 
     Senate or the approval of Congress is limited. The President 
     is commander-in-chief of the armed forces, but Congress has 
     the constitutional responsibility to decide what forces the 
     President commands and whether the United States will go to 
     war. The President may not act contrary to congressional 
     action, expressed by law in the exercise of the legislature's 
     broad powers over war and commerce with foreign nations, and 
     Congress' power to spend for the common defense and general 
     welfare. The President does not have constitutional power to 
     expend funds to transfer U.S. property contrary to 
     congressional instructions.
       Given its constitutional responsibilities, the Congress 
     must be as protective as the executive branch of its 
     institutional prerogatives. It is in this context that 
     several elements of your signing statement cause concern.

                  B. United Nations reform provisions

                (1) Constitutional separation of powers

       As you note, section 407 sets forth new reporting and 
     notification requirements with respect to U.S. assistance to 
     the United Nations. You state that you will ``construe these 
     reporting and notification requirements consistent with 
     [your] constitutional prerogatives and responsibilities as 
     Commander in Chief and head of the Executive branch.''
       I would disagree with any assertion that the section 407 
     requirements for monthly Congressional consultations and 
     written interim reports on Security Council resolutions 
     impinge on the constitutional prerogatives of the executive.

                         (2) Treaty obligations

       Sections 401 and 404 mandate certain withholdings from U.S. 
     contributions to the U.N. regular budget and peacekeeping 
     assessments. You state that these provisions ``could place 
     the United States in violation of its international treaty 
     obligations if reform is not achieved within the stated 
     time.''
       I do not understand why these particular sections would 
     raise problems unless you also would contend that any 
     appropriations law which fails to fund fully U.S. 
     contributions to the United Nations constitutes a potential 
     treaty violation. Under this reasoning, if the executive 
     branch fails to request sufficient funds for U.S. 
     contributions to the United Nations, either for the regular 
     budget, peacekeeping assessments, or arrearages, it also 
     would violate U.S. international treaty obligations through 
     its budget request. Additionally, the executive branch would 
     violate treaty obligations when it withholds U.S. 
     contributions for policy reasons, as has occurred with 
     respect to contributions for programs for the Palestinian 
     Liberation Organization, the South-West Africa People's 
     Organization, Libya, Iran, and Cuba.
       It does not seem to me that a treaty, such as the U.N. 
     Charter, can take from the House of Representatives its 
     constitutional power of the purse. It that were possible, the 
     President and the Senate could use the treaty process to 
     undercut the constitutional powers of the House.

                   C. Nuclear proliferation sanctions

       You also note ``significant constitutional concerns'' with 
     various provisions in title VIII, most specifically with 
     section 824, which authorizes sanctions to be imposed against 
     U.S. and foreign persons engaged in activities in the United 
     States that provide financing to assist nuclear 
     proliferation.
       Since the contemplated sanctions in section 824 include 
     deprivation of property, that section requires that persons 
     have the opportunity for a hearing on the record before 
     sanctions are imposed. The section also provides that any 
     determination about the imposition of sections is subject to 
     judicial review. The Constitution guarantees U.S. citizens 
     such minimum procedural and substantive due process rights, 
     so the committee of conference did not view these procedural 
     requirements as inappropriate. The fact that section 824 has 
     an impact on foreign policy and may create an inconvenience 
     does not lessen the constitutional due process protections 
     afforded U.S. citizens and their property.
       You state that it is not ``clear how these procedures could 
     function in view of the classified nature of much of the 
     material involved.'' The protection afforded by this section, 
     however, would go to procedural rather than substantive due 
     process rights. The federal courts have lengthy experience in 
     making the necessary determinations while minimizing the need 
     for consideration of classified material.


                  II. Inconsistencies and Inaccuracies

       You state that the administration interprets section 134 as 
     not waiving the scoring rules governing lease purchases under 
     the Budget Enforcement Act of 1990. It is my understanding 
     that section 134, which provides for particular accounting 
     procedures whenever the Department of State enters in a 
     lease-purchase agreement involving foreign countries, was 
     added by conferees solely at the request of the Department of 
     State, and was intended precisely to waive certain scoring 
     rules. I had assumed, apparently inaccurately, that such as 
     request represented a cleared administration position.
       At the conclusion of your detailing of the problems you 
     find in section 824, you state that you ``have been assured 
     that this provision will be corrected in a manner acceptable 
     to the Administration at the earliest possible date.'' I want 
     to be very clear that in my letter of April 27, 1994, I made 
     a commitment to work with the administration, the Senate, and 
     the other House committees of jurisdiction to draft a 
     mutually satisfactory revision.
       I appreciate your attention to these concerns, and I look 
     forward to working with you and your administration on these 
     and other matters of mutual interest in the coming months.
       With best regards.
           Sincerely,
                                                  Lee H. Hamilton,
                                                         Chairman.

 Statement on Signing the Foreign Relations Authorization Act, Fiscal 
                  Years 1994 and 1995, April 30, 1994

       Today I have signed into law H.R. 2333, the ``Foreign 
     Relations Authorization Act, Fiscal Years 1994 and 1995.'' 
     This Act authorizes critically needed appropriations and 
     provides important authorities for the Department of State, 
     the United States Information Agency (USIA), the Peace Corps, 
     and the United States Arms Control and Disarmament Agency 
     (USACDA). I appreciate the Congress' cooperation in passing a 
     bill that maintains many of the Administration's requests and 
     provides management authorities that will improve the 
     operations of the Department of State and related agencies 
     during a period of fiscal constraint.
       I am especially pleased that this legislation includes 
     language authorizing implementation of the Administration's 
     international broadcasting reorganization plan. The plan, to 
     be implemented over 2 fiscal years, will achieve projected 
     savings of approximately $400 million over 4 years, while 
     preserving and enhancing the program quality, effectiveness, 
     and professional integrity of U.S.-funded broadcast services. 
     These services include the Voice of America, Radio Free 
     Europe, Radio Liberty, Radio and Television Marti, WorldNet, 
     and a new Radio Free Asia operation.
       I very much appreciate that the funding authorizations for 
     the Department of State, USIA, and other agencies are 
     sufficient to cover appropriations for this fiscal year, and 
     for the levels requested by the Administration for fiscal 
     year 1995. I also appreciate the authorizations for 
     Contributions to International Organizations and 
     Contributions for International Peacekeeping Activities, 
     which are at the Administration's request level, plus an 
     additional $670 million in authorization provided for a 
     portion of the anticipated shortfall in fiscal year 1994 
     peacekeeping funds.
       However, earmarks in the Department of State's main 
     operating accounts for activities not requested by the 
     Administration will severely restrict the Department's 
     ability to meet planned levels for critical investments in 
     its information system and other infrastructure improvements. 
     As part of the Department's streamlining efforts, and with a 
     constrained budget, the Secretary of State needs the 
     flexibility to allocate scarce resources where they are 
     needed most.
       I am pleased at the inclusion of authorities necessary to 
     implement the Department of State's reorganization plan. I 
     regret, however, the provision that interferes with the 
     Secretary's plan to merge the Office of the Coordinator for 
     Counter-Terrorism into the proposed Bureau of Narcotics, 
     Terrorism, and Crime, where this activity would receive the 
     coordinated, high-level attention that I believe would be the 
     most effective in fighting terrorism.
       The bill also contains many useful authorities that will 
     assist the Department in improving the efficiency of its 
     operations both domestically and overseas. These include a 
     new visa fee to be used for upgrading consular systems and 
     expanded authority to hire U.S. citizens at posts abroad. 
     Despite these and many other useful authorities contained in 
     this bill, I have serious reservations concerning a number of 
     its provisions.
       Section 141 would require the Department of State to allow 
     local guard contracts awarded to U.S. firms to be paid in 
     U.S. dollars in certain countries. Because many countries 
     require that payment for services rendered locally be paid in 
     local currency, this provision could force the United States 
     to violate both host country law and its obligations under 
     the Vienna Convention on Diplomatic Relations. I will seek to 
     implement this section in the manner most consistent with 
     U.S. obligations under international law.
       Other provisions raise constitutional concerns. Article II 
     of the Constitution confers the executive power of the United 
     States on the President alone. Executive power includes 
     special authority in the area of foreign affairs. Certain 
     provisions in H.R. 2333, however, could be construed so as to 
     interfere with the discharge of my constitutional 
     responsibilities.
       For example, section 412 (reforms in the World Health 
     Organization), section 501 (protection of refugee women and 
     children), section 527(b) (loans by international financial 
     institutions to governments that have expropriated property 
     of U.S. citizens), and section 823 (loans or other payments 
     by international financial institutions for the purpose of 
     acquiring nuclear materials by non-nuclear states), purport 
     specifically to direct the President on how to proceed in 
     negotiations with international organizations. These 
     provisions might be construed to require the Executive branch 
     to espouse certain substantive positions regarding specific 
     issues. I support the policies undertaking these sections. My 
     constitutional authority over foreign affairs, however, 
     necessarily entails direction over these matters. 
     Accordingly, I shall construe these provisions to be 
     precatory.
       Section 221 (the establishment of an office in Lhasa, 
     Tibet), section 236 (an exchange program with the people of 
     Tibet), and section 573 (an Office of Cambodian Genocide 
     Investigation, the activities of which are to be carried out 
     primarily in Cambodia), could also interfere with the 
     President's constitutional prerogatives. I am sympathetic to 
     the goals of these provisions. However, they could be 
     construed to require the President to negotiate with foreign 
     countries or to take actions in those countries without their 
     consent. I will, therefore, implement them to the extent 
     consistent with my constitutional responsibilities.
       As with the resources allocated to the Department of State, 
     I appreciate the appropriations authorizations provided for 
     USIA for fiscal years 1994 and 1995. There are however, 
     certain earmarks, particularly in the exchange programs, that 
     inhibit the flexibility that USIA needs to meet changing 
     priorities. In addition, I understand that the 1994 
     appropriations authorizations provided for USIA for salaries 
     and expenses includes the authorization for administrative 
     and staff cost for the ``Educational and Cultural Exchange 
     Programs.''
       I regret the repeal of the Voice of America broadcast 
     charter language (P.L. 94--350). My Administration will work 
     with the Congress to address this issue further.
       Section 401 requires certain withholdings from U.S. 
     assessed contributions for the United Nations (U.N.) regular 
     budget, and from the fiscal year 1994 supplemental until the 
     President makes the requisite certification that the U.N. has 
     established an office of and appointed an Inspector General, 
     empowered with specified authorities. Section 404 also sets 
     forth ceilings on assessments on the United States for 
     peacekeeping contributions. Although I share the Congress' 
     goal of encouraging U.N. reform and broader cost sharing. I 
     cannot endorse the method proposed by these provisions 
     because they could place the United States in violation of 
     its international treaty obligations if reform is not 
     achieved within the stated time.
       Section 407 sets forth new reporting and notification 
     requirements, including a requirement for 15-day advance 
     notification (with no waiver provision) before the United 
     States provides certain in-kind assistance to support U.N. 
     peacekeeping operations. It is understood that the Congress, 
     however, does not consider this provision to be subject to 
     the regular procedures on reprogramming notifications. It is 
     imperative at times to provide such assistance on an urgent 
     basis to further U.S. foreign policy interests. I will, 
     therefore, construe these reporting and notification 
     requirements consistent with my constitutional prerogatives 
     and responsibilities as Commander in Chief and head of the 
     Executive branch. I also note the understanding reached with 
     the Congress that this notification process will not include 
     congressional ``holds'' on assistance when notification does 
     occur.
       The conference report accompanying H.R. 2333, with respect 
     to section 525(a). Free Trade in Ideas, purports to describe 
     the Administration's policy with respect to restrictions on 
     travel or exchanges in the context of economic embargoes. We 
     will carefully consider the sense of the Congress as we 
     complete our review of the standards for general and specific 
     licenses under embargo programs. We have not, however, 
     committed as a matter of policy to broad regulatory or 
     administrative changes to remove restrictions affecting 
     travel or exchanges for informational, educational, 
     religious, cultural, or humanitarian purposes or for public 
     performance or exhibitions. Nor have we initiated any action 
     with respect to visa or currency restrictions.
       Title VII, the Arms Control and Non-proliferation Act of 
     1994, reflects the principle that the USACDA must be a key 
     participant on arms control and nonproliferation matters. The 
     conference report accompanying H.R. 2333 calls for a 
     presumption that the President should direct the USACDA to 
     have primary responsibility for nonproliferation matters 
     absent compelling reasons to do otherwise. It also suggests 
     specific areas of responsibility in the nonproliferation 
     field that should be shifted to the USACDA. I do not accept 
     either the stated presumption or the suggested shift, since 
     such limitations would infringe on the discretion of the 
     President in carrying out foreign affairs.
       Title VIII contains provisions that raise significant 
     constitutional concerns. Section 824 would require an 
     ``opportunity for a hearing on the record'' prior to a 
     Presidential determination to impose sanctions on any person 
     contributing to nuclear proliferation through financial 
     transactions. It would also subject this determination to 
     judicial review under the Administrative Procedures Act. 
     These are extraordinary and unwarranted procedural 
     requirements for a Presidential determination in the area of 
     foreign affairs, and they raise serious constitutional 
     concerns. The delay in holding hearings and the possibility 
     of delay pending judicial review would severely undermine the 
     effectiveness of these sanctions. They would also eliminate 
     the flexibility needed to impose sanctions quickly to address 
     urgent foreign policy problems and interfere with our 
     nonproliferation efforts. Nor is it clear how these 
     procedures could function in view of the classified nature of 
     much of the material involved. In addition, the broad reach 
     of section 824 (which covers any person, not just financial 
     entities) would complicate Federal enforcement of the 
     proposed sanctions and raises additional constitutional 
     questions when coupled with the extent of the specified 
     sanctions (i.e., a complete prohibition on the conduct of any 
     new business activities).
       The juxtaposition of these elements in section 824 makes 
     the provision essentially unworkable. I have been assured 
     that this provision will be corrected in a manner acceptable 
     to the Administration at the earliest possible date. Pending 
     these corrections, and particularly in light of the 
     constitutional problems, I will interpret the statute as 
     providing me discretion to make the determinations provided 
     for in this section.
       Finally, section 134 provides that whenever the Department 
     of State enters into a lease-purchase agreement involving 
     foreign countries, the Department shall account for such 
     transactions ``in accordance with fiscal year obligations.'' 
     The Administration's interpretation is that this provision 
     does not waive the scoring rules governing lease-purchases 
     under the Budget Enforcement Act of 1990.
     William J. Clinton.

                          ____________________