The PJ Tatler

The Case Act: A Lesson from History

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 requiring ratification. The administration, not surprisingly, says there is no reason to do so.  It is not terribly surprising that the president 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 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:

(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.

How did it work? Ask Henry Kissinger.

In 1972 Secretary of State Kissinger was promoting détente with the Soviet Union. To give the Soviets incentive, Kissinger and President Nixon transferred critical technology to the Russians and liberalized export controls on aerospace and electronics technology. In addition, in a then-secret agreement between the US Export Import Bank and Russia’s Foreign Trade Bank (Vneshtorgbank), the United States offered Russia $500 million in credits — $2.8 billion in 2014 dollars. Congress was not informed, although the Case Act was in place. When the Executive Agreement between the EXIM Bank and Vneshtorgbank became known, Sen. Case, then senior member of the Foreign Relations and Appropriations Committee, asked why the State Department “failed to transmit vital documents to the Congress pursuant to law?” Ultimately, the State Department transmitted the agreement to Congress and Congress passed legislation restricting credits to the USSR without prior Congressional approval, effectively cancelling the Kissinger secret loans.

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, any forthcoming agreement with Iran, written or oral, must be submitted to Congress.

Live and learn.

Stephen Bryen is President of Ziklag Systems; Shoshana Bryen is Senior Director of the Jewish Policy Center. An earlier version of this article appeared on the JPC website.