Public Papers - 1991 - October
Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993
Today I have signed into law H.R. 1415, the ``Foreign Relations Authorization Act, Fiscal Years 1992 and 1993.'' The Act contains welcome new authorities for the Department of State, many of them included at the Administration's request. For example, the Act provides an important authorization of funds for construction of a secure chancery in Moscow, and for full payment of assessed contributions and arrearages to international organizations and for peacekeeping activities. These are especially helpful in light of our current relationship with the Soviet Union and the expanding peacekeeping role of the United Nations. I want to express my appreciation to the Congress for its cooperation in this effort. I regret, however, that the Congress has included several provisions in the Act that raise constitutional or other difficulties.
Article II of the Constitution confers the Executive power of the United States on the President alone. Executive power includes the authority to receive and appoint ambassadors and to conduct diplomacy. Thus, under our system of government, all decisions concerning the conduct of negotiations with foreign governments are within the exclusive control of the President. Some of the provisions of H.R. 1415 could be interpreted as directing or limiting through legislation the conduct by the President of foreign relations. Such an interpretation would violate fundamental constitutional principles.
For example, section 129 would prohibit the issuance of Israel-only passports and the issuance of more than one official or diplomatic passport to any U.S. Government employee for the purpose of acquiescing in the Arab League countries' policy of denying entry to persons whose passports reflect that they have travelled to Israel. It also directs the Secretary of State to enter into negotiations to seek an end to this policy. I am sympathetic to the goals of this legislation and have made this issue part of the Administration's discussions with the countries that engage in such practices.
The Constitution, however, vests exclusive authority in the President to control the timing and substance of negotiations with foreign governments and to choose the officials who will negotiate on behalf of the United States. A purported blanket prohibition on the issuance of more than one official or diplomatic passport to U.S. Government officials could interfere with my ability to conduct diplomacy by denying U.S. diplomats the documentation necessary for them to travel to all countries in the Middle East and could upset delicate and complex negotiations. I therefore am directing the Secretary of State to ensure that this provision does not interfere with my constitutional prerogatives and responsibilities.
Section 322 and title IV also raise constitutional concerns. These sections deal with Middle East arms control policy and purport to direct the President specifically how to proceed in negotiations with the United Nations and with foreign governments. This Administration is strongly committed to ongoing negotiations regarding restraints on the transfer of conventional arms and weapons of mass destruction to the Middle East. However, I must construe these sections consistent with my responsibility for conducting negotiations with foreign governments.
Section 301(b) requires the Secretary of State to designate an official with responsibility for, among other things, developing a proposal for the prosecution of Persian Gulf war criminals in an international tribunal, including proposing to the United Nations the establishment of such tribunal. I am sympathetic to the goal of this provision. I note, however, that the responsibilities of this official are to be understood by reference to section 301(a). In guiding him in the performance of his duties, therefore, I will keep in mind that section 301(a) expresses only ``the sense of the Congress.'' In conjunction with these provisions, section 301(c) requires me to submit a report to the Congress describing evidence of war crimes and identifying war criminals. I will interpret this provision in a manner consistent with my constitutional authority to protect state secrets and sensitive law enforcement information.
On a different matter, several sections impose significant reporting requirements on the Secretary of State that could be read to compel the disclosure of sensitive diplomatic activities or communications and/or state secrets. Section 114 requires unclassified reporting of certain activities in the confidential fund maintained for emergencies in the diplomatic and consular service. The mandatory public disclosure of some of these activities would be inimical to the success of U.S. foreign policy, and I shall therefore interpret this provision consistent with my constitutional authority to protect such information.
Title V, Chemical and Biological Weapons (CBW), raises concerns with respect to both the President's control over negotiations with foreign governments and the possible disclosure of sensitive information. Title V's provisions establish sanctions against foreign companies and countries involved in the spread or use of chemical and biological weapons. Title V demonstrates that the Congress endorses my goal of stemming dangerous CBW proliferation. In signing this Act, it is my understanding, as reflected in the legislative history, that title V gives me the flexibility to protect intelligence sources and methods essential to the acquisition of intelligence about CBW proliferation. In part, such flexibility is available because title V does not dictate the timing of determinations that would lead to sanctions against foreign persons.
In connection with another arms control provision, section 323, I am signing this Act on the understanding that the sanctions that must be imposed as a result of this new section apply only to exports to foreign persons of items controlled pursuant to the Arms Export Control Act, and not to exports to foreign persons of items controlled by any other law.
Section 198 deals with the publication of the ``Foreign Relations of the United States historical series'' and the declassification of Department of State documents. This section also must be interpreted in conformity with my constitutional responsibility and authority to protect the national security of the United States by preventing the disclosure of state secrets and to protect deliberative communications within the executive branch. To the extent that section 198 addressed the standards for declassification of national security information, it will be interpreted to effect no change in the standards set forth in the existing Executive order on national security information. Further, section 198 will be implemented in a manner and on a schedule that will not risk ill-considered release of protected information.
Other provisions that might be construed to require disclosure of the content of sensitive diplomatic communications, state secrets, or intelligence information will also be interpreted consistent with the President's responsibility to protect such information. See, e.g., sections 127, 129(c), 133, 192, 193, 356(b), 404, 506(b), and 508. Similarly, section 235 will be interpreted consistent with my responsibility to protect privileged material.
A number of other provisions of H.R. 1415 also pose serious constitutional problems. Section 173 would impose unconstitutional restrictions on my appointment power with respect to members of the Board of the Inter-American Foundation. Section 175(b), by requiring the Secretary of State to submit ``legislative recommendations'' to the Congress, would infringe on the Executive's constitutional prerogative to submit ``such measures as [the President] shall deem necessary and expedient.'' U.S. Const., Art. II, section 3. By directing the opening or restricting the closing of consular, diplomatic, and United States Information Agency offices, sections 112, 206, 216, and 223 would constrain the exercise of my constitutional authority to conduct foreign relations and, in particular, to direct ambassadors and other representatives of the United States. Because of these constitutional difficulties, I will treat these provisions as advisory.
Section 234 mandates the creation of a Kurdish broadcast service at the Voice of America (VOA). This Administration agrees that the Iraqi Kurds need information on events in the free world and pertaining to their own situation, and also agrees with the statement in section 234 that the Voice of America provides an effective means to accomplish this. However, this Administration believes that the creation of VOA language services through legislation limits the ability of the Agency to respond to rapidly changing international situations in a flexible and timely manner. For these reasons, this Administration will continue to oppose the specification in legislation of languages, broadcast hours, and organizational arrangements.
H.R. 1415 also includes requirements for more than 60 new reports to be submitted to the Congress. While I recognize the value of reports in assisting the Congress in its legislative responsibility, taken together such reports put a heavy burden on the reporting agencies at a time of scarce resources. I hope that, in the future, the Congress will balance its legitimate need for information with the time and expense involved in preparing a report, and make an effort to minimize reporting requirements, both in terms of the number and frequency of reports that must be submitted, as well as the level of detail required.
Finally, I object strongly to section 122, creating the position of Assistant Secretary of State for South Asian Affairs. A single Assistant Secretary handling both the Near East and South Asia, as is the case under the Department's current organization, is best for the conduct of foreign policy as well as from a management perspective. Having a single bureau enables the Department of State to develop an integrated approach to such crucial issues as proliferation of weapons of mass destruction, the Islamic revival, and the Afghan situation -- all of which involve both the countries of South Asia as well as those of the Near East. From a management perspective, this would be the smallest geographic bureau in the Department, and therefore would be inefficient and expensive. More generally, I will continue to work with the Congress to obtain the organizational flexibility needed to conduct our foreign policy most effectively.
The White House,
October 28, 1991.
Note: H.R. 1415, approved October 28, was assigned Public Law No. 102 - 138.