A movement is afoot on Capitol Hill to “force” President Obama to submit any agreement between the United States and Iran to lawmakers, even if it isn’t a treaty that requires ratification. The administration, not surprisingly, says there is no reason to do so. It is also not terribly surprising that the president — a half-term Senator — is not conversant with the 1972 Case Act (1 U.S. Code § 112b – United States international agreements; transmission to Congress). It is more surprising that those who disagree with the president in this case don’t appear to have looked it up.
In 1969 and 1970, the Senate Foreign Relations Committee learned that significant covert agreements had been arranged between the U.S. government and South Korea, Laos, Thailand, Ethiopia, Spain, and more. The Democrats at the time controlled both Houses of Congress, but it was Republican Senator Clifford Case (NJ) who authored the legislation that bears his name. The language is simple; the implications vast [emphasis added]:
(a) The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed.
How did it work? Ask Henry Kissinger.
In 1972 Kissinger was promoting “détente” with the Soviet Union just at the time Moscow was engineering a massive military buildup. To give the Soviets incentives, President Nixon and Kissinger transferred critical technology to the Russians that included U.S. participation in the huge Kama River Truck factory, transfer of fertilizer factories that could produce explosives and liberalization of export controls on aerospace and electronics technology. In addition, in a then-secret agreement between the US Export Import Bank of the United States and Russia’s Foreign Trade Bank (Vneshtorgbank), the United States offered $500 million in credits — “real” money ($2.8 billion in 2014 dollars) at the time. Congress was not informed, although the Case Act was in place. Senate staffers were suspicious how the trade deals were being financed and tried to pry the information out of the Nixon administration. When the fact there was an Executive Agreement between the EXIM Bank and Vneshtorgbank became known, Case — who was a senior member of the Senate Foreign Relations and Senate Appropriations Committee- asked why the State Department “failed to transmit vital documents to the Congress pursuant to law?” Finally, after a year passed with the agreement hidden, the State Department transmitted the agreement to Congress. Following up on that, Congress passed legislation restricting credits to the USSR without prior Congressional approval, effectively cancelling the Kissinger secret loans.
Later in 1975 it became known that President Nixon had sent two letters to South Vietnamese President Nguyen Van Thieu, “promising swift and severe retaliatory action” by the United States if North Vietnam failed to abide by the terms of the 1973 Paris Peace Agreement. The “agreements” contained in those letters had never been transmitted under the Case Act and, in fact, Congress had not known of their existence. The problem for Nixon was that in the interim, Congress passed The Church Act, forbidding military action generally in and around Southeast Asia, rendering the president’s private commitment illegal.
Over time, the Case Act has been honored more in the breech than in compliance. presidents including up to and including President Clinton have been accused of withholding relevant documents from Congress. And it’s likely they did.
Nonetheless, the law is the law and the Case Act remains. For the president and the administration to act lawfully in regard to any forthcoming agreement with Iran, it must be submitted to Congress by law.
Live and learn.