treaty obligations of the United States and with the Constitution of the United States."

This is, therefore, a declaration of U.S. intention to respond to aggression in the Middle East in a manner consistent with U.S. constitutional requirements. It clearly does not constitute a specific statutory authorization within the meaning of Section 8(a) of the War Powers Resolution. Further, the Middle East Resolution was enacted in response to a particular emergency then existing in the region, which has long since ceased to exist. The Administration does not regard that resolution as authority for the introduction of United States Armed Forces into hostilities.

*

Cong. Rec., Vol. 124, No. 106 (daily ed., July 14, 1978), p. S10843.

The enclosed relevant provisions were the following:

ARTICLE I OF THE 1959 AGREEMENT FOR COOPERATION BETWEEN THE UNITED STATES AND IRAN [ante]

In case of aggression against Iran, the Government of the United States of America, in accordance with the Constitution of the United States of America, will take such appropriate action, including the use of armed forces, as may be mutually agreed upor

ARTICLE 5 OF THE 1949 NORTH ATLANTIC TREATY [TIAS 1964; 63 STAT. 2241; 4 BEVANS 828]

The parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all; and, consequently, they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area

ARTICLE 3 OF THE 1947 INTER-AMERICAN TREATY OF RECIPROCAL ASSISTANCE BETWEEN THE UNITED STATES OF AMERICA AND OTHER AMERICAN REPUBLICS [TIAS 1838; 62 STAT. 1681; 4 BEVANS 559]

1. The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations.

2. On the request of the State or States directly attacked . . . each one of the Contracting Parties may determine the immediate measures which it may individually take in fulfillment of the obligation contained in the preceding paragraph. . . . The Organ of Consultation shall meet without delay for the purpose of examining those measures and agreeing upon the measures of a collective character that should be taken.

ARTICLE V OF THE 1960 TREATY OF MUTUAL COOPERATION AND SECURITY BETWEEN THE UNITED STATES AND JAPAN [TIAS 4509: 11 UST 1632]

Each Party recognizes that an armed attack against either Party in the territories under the Administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes

Defense of the Panama Canal

During consideration of the Panama Canal Treaties by the Senate Committee on Foreign Relations, the question was raised whether article IV of the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal, which committed the United States "to maintain the regime of neutrality established in this treaty," required the United States to undertake a course of action which under its domestic law (section 8(a)(2) of the War Powers Resolution) it was restrained from undertaking; i.e., the introduction of its Armed Forces into such hostilities as might be necessary to maintain the Canal's neutrality.

The committee considered that the problem had been eliminated through insertion into the Neutrality Treaty (as an amendment to article IV) of the Joint Statement by President Carter and Chief of Government Torrijos, of October 14, 1977, which declared, inter alia, that "the correct interpretation" of the undertaking was "that each of the two countries shall, in accordance with their respective constitutional processes, defend the Canal . . . [underscoring supplied]." The committee stated:

The effect of this language is to make clear that the treaty does not obligate the United States to introduce its Armed Forces into hostilities or authorize the President to do so. It thus places the Neutrality Treaty, in terms of the "automaticity" of the United States international commitment, in the same category as mutual defense treaties to which the United States is a party. All such treaties implicitly reserve to the United States a right of choice in each individual situation to act, militarily, as it deems appropriate under the circumstances. Any treaty which did not do so would, in the committee's judgment, unconstitutionally divest the House of Representatives of its share of the warmaking power and would, unconstitutionally, delegate to the President the power to place the United States at war. The amendment recommended by the committee to article IV would obviate these difficulties by rendering the United States commitment non-automatic, as is the commitment under article IV of the Panama Canal Treaty.

S. Ex. Rept. 12, 95th Cong., 2d sess. (1978), p. 74.

In a letter of January 5, 1978, to Herbert J. Hansell, Legal Adviser of the Department of State, Michael J. Glennon, Legal Counsel to the Senate Committee on Foreign Relations, inquired, inter alia, whether the executive branch construed the term "existing," as used in section (8) (d) (1) of the War Powers Resolution (Public Law 93-148, November 7, 1973; 87 Stat. 555, 558; 50 U.S.C. 1547(d)(1)) to refer to treaties existing on the date of enactment of the War Powers Resolution or to those existing on any date of application of the Resolution.

The Legal Adviser replied that the Department of State was of the view that the term "existing" referred to treaties existing at the time the Resolution had been enacted.

Panama Canal Treaties, Hearings before the Committee on Foreign Relations, U.S. Senate, 95th Cong., 2d sess. (1978), pt. 5, pp. 117–118.

See further, as to the impact of the War Powers Resolution on art. IV of the Neutrality Treaty, letter from Herbert J. Hansell, Legal Adviser, Dept. of State, to Senator Howard H. Baker, Jr., Oct. 31, 1977, ibid., 95th Cong., 1st sess. (1977), pt. 1, p. 334, excerpted, 1977 Digest, pp. 979-980. See further, letter from Assistant Attorney General John M. Harmon to Senator John J. Sparkman, Chairman, Senate Committee on Foreign Relations, Nov. 1, 1977, excerpted, ibid., pp. 585 et seq., at 586-587.

Sec. 8 of the War Powers Resolution, ante, provides, in pars. (a) (2) and (d) (1):

INTERPRETATION OF JOINT RESOLUTION

Sec. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred—–

(2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

(d) Nothing in this joint resolution

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties..

89

Military Assistance and Sales

Assistance and Sales

Sale of Aircraft to Middle East Countries

On February 14, 1978, Secretary of State Cyrus R. Vance announced that he had recommended to President Carter, and that the President had approved, sales of certain aircraft to Israel, Egypt and Saudi Arabia, subject to Congressional review (under section 36 (b) of the Arms Export Control Act, 22 U.S.C. 2776 (b)). The Secretary added that during the following week the Administration would begin to consult with the Congress about the proposed sales, which were to take place over a period of several years, and that formal notifications would be submitted later in order to give the Congress an opportunity to review them fully. The Secretary noted that the decision to make the sales had been a very complex one, and he explained the Administration's views on the matter as follows:

Any new aircraft sales to this region must be seen in the context of both the negotiating process and our objective of a peace settle

ment. We have considered carefully this aspect of the matter and concluded that our interests in Middle East peace and security will be best served if we go forward with some part of the aircraft sales requested by these countries.

Our commitment to Israel's security has been and remains firm. Israel must have full confidence in its ability to assure its own defense. In particular, this means Israel must be able to plan for the continued modernization of its air force. The President's decision gives particular emphasis to these points.

Egypt, too, must have reasonable assurance of its ability to defend itself if it is to continue the peace negotiations with confidence. When President Sadat made his decision several years ago to follow a course in foreign affairs that involved a change in his country's relations with the Soviet Union, he lost his major source of military equipment. This was particularly the case in Egyptian defensive aircraft capability. We believe we have a basic interest in responding to Egypt's legitimate needs.

Saudi Arabia is of immense importance in promoting a course of moderation in the Middle East-with respect to peacemaking and other regional initiatives-and more broadly in world affairs, as in petroleum and financial policy. The Saudi Government has a legitimate requirement to modernize its very limited air defenses. For several years, we and they have recognized the need to modernize their air force with an advanced interceptor. They have asked for a limited number of F-15's, the first of which would not be delivered for several years. We believe their request is reasonable and in our interest to fulfill.

We have concluded, therefore, that the sales of these aircraft to the countries in question will help to meet their legitimate security requirements, will not alter the basic military balance in the region. and will be consistent with the overriding objective of a just and lasting peace.

Accordingly, the Administration plans to notify Congress of our intent to make the following sales:

-For Israel, 15 F-15's in addition to the 25 previously sold, and 75 F-16's.

-For Egypt, 50 F-5's.

-For Saudi Arabia, 60 F-15's.

We will be signing contracts for these aircraft over the next several years. These sales will be consistent with the President's global arms transfer policy and will be within the dollar volume ceiling that he has established. The details will be reported to Congress when the statutory notifications are provided.

All of these sales are directly supportive of our overall objectives in the Middle East. Members of the Administration will be testifying before a number of Congressional committees in support of this package so that Congress will have full opportunity to make its judgment during the period of its review.

Dept. of State Press Release No. 75, Feb. 14, 1978; Dept. of State Bulletin, Vol. 78, No. 2012, Mar. 1978, p. 37.

Pursuant to the requirements of section 36(b) of the Arms Export Control Act, 22 U.S.C. 2776(b), the proposed sales were formally notified to the Speaker of the House of Representatives and to the Chairman of the Senate Committee on Foreign Relations. The three letters of notification, transmited under date of Apr. 29, 1978, to Senator John J. Sparkman, Chairman, Committee on Foreign Relations, U.S. Senate, from the Acting Director, Defense Security Assistance Agency, Erich F. von Marbod, are at Middle East Arms Sales Proposals, Hearings before the Comm. on Foreign Relations, U.S. Senate, 95th Cong., 2d sess. (1978), pp. 1–15. Identical letters were transmitted to the Speaker of the House of Representatives.

Announcing transmittal of the letters at a White House press briefing, held Apr. 28, Secretary Vance stated that the Administration was not attempting to place conditions on the scope of the congressional review or action by the Congress, in submitting the proposed sales on the same day, and that it understood that the Congress would want to review them separately and with great care. He concluded his remarks by saying:

At the same time, the responsibility of the President for the conduct of foreign affairs requires that he reserve judgment on the ultimate action to be taken until he has had an opportunity to review the action taken by the Congress on the proposals announced today.

Weekly Comp. of Pres. Docs., Vol. 14, No. 17, May 1, 1978, p. 801.

The House Committee on International Relations held hearings on the proposed sales on May 8, 9, 10 and 16, 1978, in connection with 13 pending resolutions of disapproval (some recommending rejection of individual sales, and others recommending rejection of the sale as a group). Secretary Vance testified in support of the sales on May 9, in part as follows:

IMPORTANCE TO AMERICAN INTERESTS OF COUNTRIES INVOLVED

IN THE SALE

The three countries involved are each of exceptional importance to American interests

The aircraft which we propose meet an important need for each of the three countries involved.

Israel is stronger now than at any time in its history. In order to maintain its substantial margin of military superiority in the region, however, Israel will require replacements for aircraft which become obsolete in the 1980's. The F-15's and F-16's are intended to assure that Israel retains its lead in advanced military technology.

Egypt, having ended its arms supply relationship with the Soviet Union, has not received significant supplies of aircraft or parts in about 3 years. Egypt is understandably concerned about threats from the west and south. The F-5's will help Egypt present a credible air defense posture and assure confidence that the United States will assist it in meeting its legitimate defense needs.

Saudi Arabia needs an adequate air defense system to protect its vast territory, including widely scattered population centers and vulnerable oil facilities. Saudi Arabia, whose armed forces are among the smallest in the region, has a long history of ideological conflict