¹ The relevant decisions by the U.S. Administration and Congress were taken in 1975. The Administration presented its “Proposal” to the parties in September 1975 (see infra, Sec. II); and Congress gave its approval in Public Law 94–110, enacted into law October 13, 1975, 89 Stat. 572. Pursuant to these decisions, Executive Order 11896 was issued on January 13, 1976, establishing the U.S. Sinai Support Mission (SSM) and its operating arm, the U.S. Sinai Field Mission (SFM); and the SFM became fully operational on February 22, 1976. The ceiling of 200 men, permitted by law for the SFM, was, in fact, never reached. Congressional desires for a reduced presence (see infra, Sec. IV) were respected, and even at the peak of its surveillance activities, the SFM employed only about 175 Americans. Paradoxically, when the area of the SFM's responsibility was increased in February 1980 from 240 square miles to over 15,600 square miles (see following note), the number of personnel was reduced, and in February 1981 stood at 137. See the report of the General Accounting Office, in Sinai Agreement, Hearing before the Senate Committee on Foreign Relations, 97th Cong., 1st Sess., July 20, 1981 (hereafter cited as Senate 1981 MFO Hearing), pp. 51–52. See also, in general, the State Department publications on the Sinai Support and Field Missions, entitled “Watch in the Sinai” (1980) and “Peace in the Sinai” (1982).

² The SFM formed part of “an interlocking series of peacekeeping arrangements”. “Watch in the Sinai”, supra n. 1 at 3. For a discussion of these interlocking arrangements, see Nissim Bar-Yaacov, “Keeping the Peace Between Egypt and Israel, 1973–1980”, (1980)15 Is.L.R. 197–268. And see infra, n. 5 and accompanying text. The SFM continued to operate even after termination of the mandate of UNEF II in July 1979; and from February 1980 to April 1982, its responsibilities were broadened, in accordance with the wishes of Israel and Egypt, to include the task of verifying the force and armaments limitations specified in the 1979 Egyptian-Israeli Peace Treaty during the interim withdrawal period. Thereafter, the task of monitoring the peace was transferred to the Multinational Force and Observers in Sinai (MFO). See “Peace in the Sinai”, supra n. 1; Report of the General Accounting Office, in Senate 1981 MFO Hearing, supra n. 1 at 52.

³ See Multinational Force and Observers Participation Resolution, Public Law 97–132, December 29, 1981, 95 Stat. 1693; Senate 1981 MFO Hearing, supra n. 1; Creation of the Multinational Force and Observers (MFO) for the Sinai, Hearings and Markup before the House Committee on Foreign Affairs and its Subcommittees on International Security and Scientific Affairs and on Europe and the Middle East, 97th Cong., 1st Sess., July 21, 28, and October 27, 1981; Sen. Rept. 97–197 (to accompany S.J. Res. 100), 97th Cong., 1st Sess., September 30, 1981; H. Rept. 97–310 (to accompany H.J. Res. 349), 97th Cong., 1st Sess., November 2, 1981; Congressional Record, Vol. 127, pp. S11335–S11337 (daily ed. October 7, 1981); ibid., at H8603–H8617 (daily ed. November 19, 1981); ibid., at S15515–S15518, H9834–H9836 (daily ed. December 16, 1981).

⁴ The successful operation of SFM in the area was an equally essential prelude. See the Report of the General Accounting Office, in Senate 1981 MFO Hearing, supra n. 1 at 51, where the SFM is described as “an unqualified success”. See also the semi-annual presidential reports to Congress on the SFM, and the presidential letters transmitting the reports (especially the letters of October 5, 1979, and April 16 and September 29, 1980); “Watch in the Sinai” and “Peace in the Sinai”, supra n. 1; and the message of President Reagan of August 12, 1982, ibid., at 32.

⁵ The Sinai II Agreement was a composite one. A basic Agreement and Annex were initialed by the parties on September 1, 1975 and signed on September 4. The U.S. “Proposal” (see infra, this section) was accepted by the parties, on the same dates, as an “integral part” of their agreement. On September 22, 1975, a “Protocol” to implement the Agreement was signed by Egypt and initialed by Israel. On October 10, 1975, following congressional adoption of the Sinai Resolution, Israel too signed the “Protocol”, thereby bringing the basic Agreement and Annex into force. The texts of these four agreements are reproduced in (1975) 14 International Legal Materials 1450–1467.

⁶ For the location of the various surveillance and watch stations in the Sinai, see the map attached to UN Doc. S/12897, October 17, 1978; reproduced in (1980) 15 Is.L.R. following p. 268. The map of the U.S. Early Warning System appears in “Watch in the Sinai”, supra, n. 1 at 10.

⁷ See infra, Sec. IV, with respect to the questions of open-endedness and removal of the Sinai technicians.

⁸ See Early Warning System in Sinai, Sen. Rept. 94–415 (to accompany S.J. Res. 138), 94th Cong., 1st Sess., October 7, 1975, p. 1. (Hereafter cited as 1975 Senate Report.)

⁹ See paragraph 16 of Agreement E. (For citation, see infra, n. 10). Secretary of State Kissinger later explained to the congressional foreign affairs committees that the final “Proposal” represented for Israel a minimal, essential alternative to the wider U.S. participation which Israel had initially hoped for. According to the original Israeli suggestion—rejected by the United States because some 1,000 U.S. personnel would have been required—the United States would have manned and assumed “trusteeship” over the two strategic warning stations in the Sinai buffer zone. The United States offered instead to supervise the non-militarized nature of the Israeli and Egyptian strategic warning stations and later agreed, reluctantly, to participate directly in the tactical warning system embodied in the “Proposal”. See Middle East Agreements and the Early Warning System in Sinai, Hearings before the House Committee on International Relations, 94th Cong., 1st Sess., September 8, 11, 18, and 25, 1975 (hereafter cited as House 1975 Hearings), pp. 6–7; To Implement the United States Proposal for the Early Warning System in Sinai, H. Rept. 94–532 (on H.J. Res. 683), 94th Cong., 1st Sess., October 6, 1975 (hereafter cited as 1975 House Report), pp. 12–13.

¹⁰ For the texts of these agreements and of Agreement H (assurances to Egypt), see Early Warning System in Sinai, Hearings before the Senate Committee on Foreign Relations, 94th Cong., 1st Sess., October 6 and 7, 1975 (hereafter cited as Senate 1975 Hearings), pp. 249–253. The texts are also reproduced in Congressional Record, Vol. 121, pp. 32718–32719 (1975), and in (1975) 14 International Legal Materials 1468–1469.

^10a For text, see infra n. 14; and see the discussion in Sec. III(B), infra.

^10b See text in n. 15, infra; and see infra, n. 44 and accompanying text.

¹¹ The House International Relations Committee held part of its September 8 and 11 meetings behind closed doors, and the Senate Foreign Relations Committee met in executive session on September 4, 8, 24, and 25, and on October 2, 3, and 7, 1975. House 1975 Hearings, supra n. 9 at 1–3, 12–13; 1975 Senate Report, supra, n. 8 at 2.

¹² While the House International Relations Committee held all of its open hearings before the agreements were made public, the Senate Foreign Relations Committee's hearings of October 6 and 7 followed the decision to release the documents. Floor debate in both chambers was based on knowledge of the content of the “secret” agreements. See Congressional Record, Vol. 121, pp. 32323–32340, 32382–32434, 32665–32759 (1975). The Administration objected to the Senate's action and continued to behave as if the agreements remained secret. See infra, Sec. III(A), on the issue of secrecy.

¹³ See the discussion in Sec. III(B), Infra.

¹⁴ “In view of the long-standing United States commitment to the survival and security of Israel, the United States Government will view with particular gravity threats to Israel's security or sovereignty by a world power. In support of this objective, the United States Government will in the event of such threat consult promptly with the Government of Israel with respect to what support, diplomatic or otherwise, or assistance it can lend to Israel in accordance with its constitutional practices”.

¹⁵ “In accordance with the principle of freedom of navigation on the high seas and free and unimpeded passage through and over straits connecting international waters, the United States Government regards the Straits of Bab-el-Mandeb and the Strait of Gibraltar as international waterways. It will support Israel's right to free and unimpeded passage through such straits. Similarly, the United States Government recognizes Israel's right to freedom of flights over the Red Sea and such straits and will support diplomatically the exercise of that right”.

¹⁶ Even these paragraphs were not free of ambiguities. See infra, n. 51.

¹⁷ See, in general, Feinrider, Martin, “America's Oil Pledges to Israel: Illegal But Binding Executive Agreements”, (1981) 13 N.Y.U. J. Int'l L. & Politics 525–568Google Scholar. In the matter of oil, the primary concern of Congressmen related to the possibility that force might be required to redeem the U.S. pledges guaranteeing the oil flow to Israel in various contingencies. See, e.g., Infra, n. 126. The legal basis for the oil provisions figured (but only in a minor way) in the debate between the Senate's legal counsel and the State Department's legal adviser. (See citations of the legal memoranda, in Feinrider, at 529–530 n. 28; and see infra, n. 42.) Feinrider claims (at 558–560) that from 1975–1979 the oil pledges were invalid under U.S. domestic law. His view is based on some challengeable assertions regarding the limits of the President's agreement-making power and on a particular interpretation of the U.S.-Israeli Memorandum of Agreement and of the relevant statutory provisions. Cf. the opposite, no less plausible view of the State Department, cited Ibid., at 557, 559 n. 192.

¹⁸ Senator Percy was particularly exercised by the reference to Pershing ground-to-ground missiles (albeit with conventional warheads) in Agreement F. He feared that the arms race in the Middle East might thereby be escalated. See, e.g., Senate 1975 Hearings, supra, n. 10 at 36, 59–61, 105–106, 241. Secretary of State Kissinger and Senator Javits emphasized that the American commitment was limited to a “joint study” of the matter. Ibid., at 62, 242.

¹⁹ Critics cited mainly the pledges in Agreement F on concerting diplomatic action with Israel and on non-recognition of the P.L.O.; and the paragraphs in Agreements E and F on possible U.S. veto action in the Security Council. See, e.g., the Zablocki-Sisco exchange, in House 1975 Hearings, supra, n. 9 at 24; the McGovern-Kissinger exchange, in Senate 1975 Hearings, supra, n. 10 at 226; and the testimony of George Ball, ibid., at 20, 26, 27.

²⁰ See infra, Sec. III(B), on the question of linkage.

^20a See infra, n. 78.

²¹ As Senator Percy observed in his opening statement to the Senate Foreign Relations Committee, “we have taken longer to reach agreement between the executive and legislative branches of our own government than between two adversaries, Israel and Egypt”. Senate 1975 Hearings, supra, n. 10 at 1. And see infra n. 78. However, the Administration's plea for prompt action did lead the Senate to reject a number of measures which, if adopted, would have delayed passage of the joint resolution by requiring a conference between the two houses after the Columbus Day recess. See, especially, Congressional Record, Vol. 121, pp. 32665–32667, 32669, 32686, 32717, 32733, 32737 (1975). And see the discussion of the abortive amendments in Secs. III and IV, infra.

²² Senate 1975 Hearings, supra, n. 10 at 2.

²³ The House passed the joint resolution (H.J. Res. 683), with two amendments, on October 8, by a vote of 341–69; the Senate adopted the House measure (to avoid the necessity of conference) on October 9, by a vote of 70–18. Congressional Record, Vol. 121, pp. 32434, 32758–32759 (1975).

²⁴ Senate 1975 Hearings, supra, n. 10 at 34.

²⁵ Ibid., at 41.

²⁶ Ibid., at 38.

²⁷ See, especially, the comments of Senator Hollings: “It is no way to do business with American lives with this kind of Mickey Mouse, , rinkydink, ‘it is there, it is not there, we do not know, but we cannot let everybody know, now you see it, now you don't' diplomacy. The American people are not going to support what they know not about”. Congressional Record, Vol. 121, p. 32334 (1975)Google Scholar. See also the comments of Senator Biden, ibid., at 32327; Representative Winn, House 1975 Hearings, supra, n. 9 at 28; and Senator Percy, Senate 1975 Hearings, supra n. 10 at 35 (quoted at n. 32, infra.) The issue of secrecy was cited in the Senate Foreign Relations Committee Report, supra n. 8 at 9, as one of the two issues which most engaged the Committee's attention. (The second issue was that of linkage, discussed infra, at nn. 62–77.)

²⁸ The texts were published in the Washington Post and New York Times on September 16 and 17, 1975, following earlier leaks in the Israeli press. See House 1975 Hearings, supra n. 9 at 20 (comments of Chairman Morgan).

²⁹ The resolution, sponsored by Senator Javits, was adopted unanimously by the committee on September 30. 1975 Senate Report, supra n. 8 at 2.

³⁰ Ibid.; Senate 1975 Hearings, supra n. 10 at 215.

³¹ The vote was 12–2 (Senators Pell and Griffin), 1975 Senate Report, supra n. 8 at 2. While Senator Griffin viewed publication as an illegal step (see infra, n. 35), Senator Pell objected for different reasons. He considered that, apart from the oil pledges, most of the provisions of the agreement were “basically statements of intention” and that the very act of publishing them might escalate them into more binding commitments. Ibid., at 11.

³² Senate 1975 Hearings, supra n. 10 at 35. But see Senator Percy's subsequent concern that by publication, the Committee may have violated Senate rules. Ibid., at 230.

³³ Public Law 92–406, 86 Stat. 619 (1972).

³⁴ Testimony of Secretary Kissinger, Senate 1975 Hearings, supra n. 10 at 209. See also the comments of Senator Griffin, ibid., at 12.

³⁵ Ibid., at 14 (Senator Griffin). Senator Hugh Scott also thought that the Committee may have violated Senate rules. Ibid., at 12, 202. And cf. n. 32, supra.

³⁶ Congressional Record, Vol. 121, p. 32328 (1975).

³⁷ Ibid.; 1975 Senate Report, supra n. 8 at 6. Senators Sparkman and Case, respectively chairman and ranking minority member of the Senate Foreign Relations Committee, were asked by the Committee to review the documents a second time before presenting their conclusions. The Administration offered to allow the chairman and ranking minority member of the House International Relations Committee to peruse all the documents as well. House 1975 Hearings, supra n. 9 at 33, 42.

³⁸ See, e.g., the comments of Senators Biden, , Ribicoff, , and Hollings, , Congressional Record, Vol. 121, pp. 32327, 32329, 32330–32331, 32334 (1975)Google Scholar. Senator Case also expressed reservations regarding the procedure followed. Ibid., at 32339. On the other hand, some Senators sided with the Administration and argued that disseminating the details of the Israeli-Egyptian negotiations more widely might hamper the negotiations and “blow this lid right off”. Ibid., at 32331 (Senator Humphrey); see also the comments of Senator Pastore, ibid., at 32332. Cf. the advice of Paul Warnke to the Senate Foreign Relations Committee not to “focus obsessively” on getting “every piece of paper” relating to U.S. assurances, because “Congress cannot be claimed to have acquiesced in any commitment of which it has no knowledge”. Senate 1975 Hearings, supra n. 10 at 53–54, 64–65.

³⁹ In Committee, a motion by Senator Biden to recommend Senate declassification was rejected by a 10–3 vote, 1975 Senate Report, supra n. 8 at 6; and on the Senate floor, an amendment by Senators Clark, , Biden, , Haskell, and Stevenson, to declassify was set aside by the much closer margin of 59–32. Congressional Record, Vol. 121, p. 32717 (1975)Google Scholar. For floor discussion, see ibid., at 32691–32717. Opponents of disclosure minimized the significance of the legal memorandum while highlighting its potentially embarrassing effects; proponents argued the reverse and contended that the elimination of legal ambiguities would benefit Egypt and Israel as well as the American public. Compare, e.g., the arguments of Senators Javits, Humphrey, and Case with those of Clark, Stevenson, Biden, and McGovern. And see further infra this section, on the binding nature of the commitments.

⁴⁰ Senate 1975 Hearings, supra n. 10 at 209; and see ibid., at 237. In earlier Middle East negotiations this procedure had applied, Kissinger argued, to the satisfaction of all concerned.

⁴¹ Ibid., at 228.

⁴² For the State Department position, see the following: 1) Letter of September 18, 1975 from Monroe Leigh, Legal Adviser of the State Department, to Thomas E. Morgan, Chairman of the House International Relations Committee. Reprinted in Senate 1975 Hearings, supra n. 10 at 85; Congressional Record, Vol. 121, p. 32724 (1975); and (1975) 14 International Legal Materials 1592–1593. 2) Letter of September 29, 1975 from Leigh, to Morgan, . Reprinted in Congressional Record, Vol. 121, pp. 32724–32725 (1975)Google Scholar. 3) Reply of October 6, 1975 by Department of State Legal Adviser, Monroe Leigh, to Senate Office of Legislative Counsel Memorandum on Certain Middle East Agreements. Reproduced ibid., at 36718, and in (1975) 14 International Legal Materials 1593–1596. 4) Reply of February 4, 1976 by Department of State Assistant Legal Adviser, Arthur W. Rovine, to Second Memorandum of Senate Office of Legislative Counsel Concerning Certain Middle East Agreements. Reproduced (1976) 15 ibid., 190–198. The position of the Senate's Legal Counsel, Michael Glennon, is set forth in: 1) Memorandum of Law of September 24, 1975. Reproduced with appendices in Senate 1975 Hearings, supra n. 10 at 65–84; Congressional Record, Vol. 121, pp. 32705–32713 (1975); and (1975) 14 International Legal Materials 1585–1593. 2) Memorandum of Law—Response to Memorandum of Department of State Legal Adviser Regarding Secret Middle East Agreements, October 22, 1975. Reproduced in Congressional Record, Vol. 121, pp. 36722 ff. (1975); and (1976) 15 International Legal Materials 187–189.

⁴³ This group included Senators Abourezk, , Clark, , Biden, , Mansfield, , Scott, William L., and McGovern, . See, e.g., Congressional Record, Vol. 121, pp. 32327, 32679–32680, 32692–32693, 32720, 32728–32729 (1975)Google Scholar. (Senator Eagleton favored the treaty route, but only with the consent of the parties. They should, he thought, be notified of the lack of efficacy of the present commitments and then be given the opportunity to opt for a proper treaty. Senate 1975 Hearings, supra n. 10 at 199–202.) Support for using the treaty form was also voiced by Professor Raoul Berger, ibid., at 121–124; and George Ball, ibid., at 19, 25.

⁴⁴ Para. 10 relates to threats to Israel's security, and para. 14 deals with freedom of navigation in international waterways in the area. For texts, see supra, nn. 14 and 15. Para. 10 mentioned the possibility that, in the event of a threat “by a world power” to Israel's security or sovereignty, the United States might extend support, “diplomatic or otherwise” (emphasis added). With respect to para. 14, it was argued that since the third sentence referred to diplomatic support while the second did not qualify the term “support”, the support contemplated in the second sentence might be construed to embrace military measures as well. See, e.g., Congressional Record, Vol. 121, pp. 32705, 32724, 32727 (1975). See also the Glennon September 24 memorandum, (supra n. 42) ibid., at 32708–32709, 32712–32713; Senate 1975 Hearings, supra n. 10 at 71, 72–74, 83–84. See also ibid., at 104–105, 107–108 (testimony of Paul Warnke), and 123 (statement of Professor Raoul Berger). Other provisions which, some feared, might entail a possible use of military means were para. 3, which aims to ensure an oil supply to Israel (even in the event of an oil embargo on the United States), and para. 7, which speaks of joint U.S.-Israeli consultation as to the significance of any Egyptian violation of the Sinai Agreement “and possible remedial action by the United States Government”. See, e.g., the Clark-Warnke exchange, ibid., at 104; Congressional Record, Vol. 121, pp. 32724, 32727 (1975). Cf. the firm denial by Under Secretary of State Sisco that there was any commitment by the United States to use the U.S. navy to transport oil to Israel. House 1975 Hearings, supra n. 9 at 25.

⁴⁵ Congressional Record, Vol. 121, p. 32327 (1975).

⁴⁶ See Foreign Affairs Manual, Vol. 11, October 25, 1974, Sec. 721.3. “Circular 175”, as a whole, deals with the negotiation and signature of treaties and other international agreements.

⁴⁷ See, e.g., Congressional Record, Vol. 121, pp. 32689, 32728 (1975); and see Glennon September 24 memorandum (supra n. 42) ibid., at 32707. Senators and the Senate counsel also cited the Senate's 1969 non-binding National Commitments Resolution (S. Res. 85, 91st Cong., 1st Sess., Congressional Record, Vol. 115, p. 17245 [1969]) which, after broadly defining a U.S. “national commitment”, expressed the “sense” of the Senate that such a commitment “results only from affirmative action taken by the executive and legislative branches … by means of a treaty, statute, or concurrent resolution of both Houses of Congress specifically providing for such a commitment”. See, e.g., Congressional Record, Vol. 121, pp. 32728–32729, 32708, 32711 (1975). Against these arguments see, especially, the October 6, 1975 Leigh memorandum and the February 4, 1976 Rovine memorandum (both cited supra, n. 42).

⁴⁸ Their sentiment was also shared by such former members of the Administration as George Ball, Paul Warnke, and Charles Yost. See their testimony in Senate 1975 Hearings, supra n. 10 at 41–46, 48–51, 116.

⁴⁹ Congressional Record, Vol. 121, p. 32690 (1975). Only nine Senators supported the motion, while 85 opposed. Even some of the Senators who had earlier argued for the treaty route, such as Clark and McGovern, rejected the motion at that stage.

⁵⁰ Ibid., at 32688.

⁵¹ See, especially, ibid., at 32688, 32700–32701; Senate 1975 Hearings, supra n. 10 at 13, 34. Even the oil provisions, as Senator Pell noted, contained some “weasel words”. Ibid., at 34.

⁵² See ibid., at 49–53, 110–111, 116 (testimony of Warnke, Paul and Yost, Charles); Congressional Record, Vol. 121, pp. 32696–32697, 32700–32701 (1975)Google Scholar (comments of Senator Humphrey). And cf. Senator Pell's reasons for opposing publication of the secret agreements, supra n. 31.

⁵³ Senate 1975 Hearings, supra n. 10 at 33–34, 222; Congressional Record, Vol. 121, p. 32700 (1975).

⁵⁴ Senate 1975 Hearings, supra n. 10 at 52 (citing Public Law 93–148, November 7, 1973, 87 Stat. 555). But cf. the view of Senator Biden cited infra, at n. 159. On the War Powers Resolution, see further infra, n. 99; and see, generally, Sec. IV, infra.

⁵⁵ As explained by Senator Pell, these levels began with a “statement of intent” at the “base of the pyramid”, and rose through an “understanding” to an “agreement” and finally to a “treaty”. Senate 1975 Hearings, supra n. 10 at 222; see also ibid., at 13.

⁵⁶ Congressional Record, Vol. 121, pp. 32706, 32711 (1975). This conclusion was reached on the basis, inter alia, of comparisons between para. 10 and parallel provisions in mutual security treaties; the possibility that other provisions too might involve the use of military force; the criteria embodied in the State Department's Circular 175 procedure and the Senate's National Commitments Resolution (see supra, nn. 46 and 47 and accompanying text), ibid., at 32706–32711. With respect to Agreements G and H, the conclusion was that they may “possibly” also be without force and effect in domestic law, but because of the constitutional uncertainty in this matter, Israel and Egypt respectively could not “reasonably have known of any such potential constitutional defect”; hence the two agreements were “probably of force and effect under international law”. Agreement F (on the Geneva Conference) was held to be a “valid executive agreement” with “full force and effect under international law”. Ibid., at 32705–32706, 32711–32712. That a “valid” executive agreement was as binding as a treaty was acknowledged, ibid., at 32712. Cf. the even more restrictive view held by Professor Raoul Berger and Senator Eagleton regarding the President's power to make executive agreements. Both would allow such agreements only pursuant to specific treaties or statutes. Senate 1975 Hearings, supra n. 10 at 121–124, 199.

⁵⁷ October 6, 1975 public Leigh memorandum (supra n. 42). The principal Supreme Court cases relied on were United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942); and United States v. Curtiss-Wright Corporation, 299 U.S. 304 (1936). As for the National Commitments Resolution and Circular 175 procedures (see supra, nn. 46 and 47), these were totally non-binding. For further exchange of memoranda, sec supra, n. 42.

⁵⁸ Letter of Leigh to Morgan, September 18, 1975 (see supra n. 42), Congressional Record, Vol. 121, p. 32713 (1975). Until pressed subsequently, the State Department Legal Adviser made no attempt to specify which commitments fell into which category.

⁵⁹ See the statement of Under Secretary of State Siseo, House 1975 Hearings, supra n. 9 at 27, 35. The provisions, he said, were “so vague and general that as a lawyer I would not regard them as constituting any kind of valid, binding contract”. Ibid., at 35. A similar note was sounded in the September 29, 1975 Leigh letter to Morgan (supra n. 42) Congressional Record, Vol. 121, pp. 32724–32725 (1975). Cf. the comment of Senator Pell that “any good lawyer could drive a Mack truck through four-fifths” of Agreement E. Senate 1975 Hearings, supra n. 10 at 34.

⁶⁰ See ibid., at 207, 210, 211, 212, 214, 226, 235 (emphasis added). See also the Clark-Kissinger and Javits-Kissinger exchanges, ibid., at 238–239, 240–241. Compare the views of Senator Stevenson, who denied that there was any “practical difference” between a “moral” and a “legal” obligation, between a “good faith” engagement and a true commitment. “Such subtleties are typical of the Secretary of State. They are subtleties without meaning—intended to entrap but not to enlighten.… Their purpose is to entrap the Congress and other parties in the Secretary's web without disclosing what the web is”. Congressional Record, Vol. 121, p. 32754 (1975). And see, to the same effect, the opinion of George Ball that to speak of “levels of commitment” was dreadfully confusing rather than useful, since the other side could not know to which level each provision appertained. Senate 1975 Hearings, supra n. 10 at 29–30.

⁶¹ Senators most friendly to Israel, such as Javits, Humphrey, and Case were the ones who attributed least importance to the Leigh memorandum, regarding it as unofficial, and all its categorization of the commitments—binding, non-binding, half-binding, etc.—as potentially damaging to the agreements. As far as the President was concerned, they argued, the assumption must be that he intended to implement all of the provisions, but his intentions did not bind Congress in any way. See, especially, ibid., at 221; and Congressional Record, Vol. 121, pp. 32694–32696, 32700–32701, 32730–32731 (1975).

In the debates, there also arose a seemingly paradoxical situation. The most pro-Israel Senators were most intent on minimizing the binding force of the agreements and appeared unconcerned about the many ambiguities in the agreements and about how Israel might interpret the provisions. On the other hand, Senators and witnesses less friendly to Israel attributed greater force to the agreements, and were seemingly distressed over their ambiguities and the possibility that Israel might be misled regarding the extent of the U.S. commitment. See, e.g., the following exchange between Senator Javits and George Ball (the latter, not known for his cordiality to Israel):

“Senator Javits: I don't care… [how] Jerusalem or Cairo interpret what they think is an undertaking or an assurance, but I care everything about what we think and what we represent to the Congress, which is in my judgment the only binding assurance or commitment… by the United States ….”

“Mr. Ball: Well, with all due respect I care very much how Jerusalem interprets this. I care very much how Cairo interprets this …. If they interpret it one way and assume these are binding commitments we have put them in a very, very false position …. [A]mbiguity is a very, very dangerous element in international exchange….”

Senate 1975 Hearings, supra n. 10 at 33. Compare also the statements of Senators Javits, Humphrey, and Case (supra, this note), with those of Senators less friendly to Israel, such as Abourezk, , Clark, , Haskell, , Hollings, , McClure, , McGovern, , Mansfield, , Scott, William L., and Stevenson, . Congressional Record, Vol. 121, pp. 32336–32337, 32678–32679, 32688–32689 32702, 32713, 32719–32720, 32722–32723, 32726–32728, 32754 (1975)Google Scholar. The key to the apparent paradox lay in the fear of the pro-Israel legislators that if the import of the agreements were spelled out too explicitly, the agreements would be undone—either by Congress, which would consider their scope too extensive, or, more likely, by Israel, which would consider their scope too limited to be of any value. Those less sympathetic to Israel desired what the first group feared: the complete disavowal and exorcising of the U.S. commitments to Israel—unless explicitly approved by the Senate in the form of a treaty (an unlikely eventuality). See supra, this section on the treaty v. executive-agreement debate; and infra, this section on the issue of linkage.

⁶² The Senate Counsel, Michael Glennon, had concluded that without a specific disclaimer, the adoption of the joint resolution could indeed be “construed as constituting approval of Agreements E-H”. Ibid., at 32712.

⁶³ Cf. the previous congressional disclaimer regarding U.S. military and economic aid to Cambodia, in which Congress declared that such aid “shall not be construed as a commitment by the United States to Cambodia for its defense”. See Public Law 92–226, Pt. IV, Sec. 408, February 7, 1972, 86 Stat. 35. The need to include such a disclaimer had arisen against the background of some federal judicial decisions which had seen in military appropriations and other Vietnam-related legislation implied congressional authorization of the war. See, e.g., Berk v. Laird, 429 F. 2d 302 (2nd Cir. 1970); Orlando v. Laird, 443 F. 2d 1039 (2nd Cir. 1971), cert, denied, 404 U.S. 869 (1971).

⁶⁴ Sec. 5, Public Law 94–110, October 13, 1975, 89 Stat. 572, 573. In the original, longer Zablocki caveat, Congress would also have opposed any construction of the resolution which would have had Congress consent to the characterization of the commitments, understandings, etc. “as constituting a ‘codification’ of existing congressionally approved, United States policy”. See 1975 House Report, supra n. 9 at 27. Both Kissinger and Siseo had emphasized in their testimony the traditional, non-innovative, nature of most of the commitments in the secret agreements (and especially of para. 10 of Agreement E). See, e.g., House 1975 Hearings, supra n. 9 at 32, 37; Senate 1975 Hearings, supra n. 10 at 237–238, 240. Although replaced by a shorter, Lagomarsino version, the original Zablocki amendment was incorporated in the report of the House International Relations Committee. 1975 House Report, supra n. 9 at 19.

⁶⁵ Congressional Record, Vol. 121, p. 32754 (1975) (Senator Stevenson).

⁶⁶ Ibid., at 32732 (Senator Biden).

⁶⁷ Ibid., at 32679 (Senator Mansfield).

⁶⁸ Ibid., at 32327 (Senator Biden).

⁶⁹ Ibid., at 32412 (Representative Skubitz).

⁷⁰ See, e.g., ibid., at 32679, 32703, 32713, 32754 (comments of Senators Mansfield, Biden, Clark, and Stevenson); Senate 1975 Hearings, supra n. 10 at 40–41 (Senator Clark), 234–235 (Biden-Kissinger exchange).

⁷¹ Ibid., at 50 (advice of Paul Warlike).

⁷² Congressional Record, Vol. 121, p. 32717 (1975). The Biden amendment was co-sponsored by Senators Clark, Haskell, and Stevenson. In the Foreign Relations Committee, the Biden amendment was worded somewhat differently: “In taking action pursuant to this Resolution, the President agrees” that the various collateral assurances, pledges, or undertakings “are only good faith statements of present intention of his, designed to promote the basic purpose of a just and stable peace in the Middle East” (emphasis added). The proviso on future U.S. freedom of action was also somewhat differently worded. 1975 Senate Report, supra n. 8 at 5–6. In their testimony before the Senate Foreign Relations Committee, Paul Warnke and Professor Roger Fisher had recommended the inclusion of similar statements. Senate 1975 Hearings, supra n. 10 at 54–55, 245.

⁷³ Congressional Record, Vol. 121, pp. 32730–32731 (1975). See also Senate 1975 Hearings, supra n. 10 at 112.

⁷⁴ 1975 Senate Report, supra n. 8 at 6. Only Senators McGovern and Clark joined Senator Biden in support of the amendment.

⁷⁵ Congressional Record, Vol. 121, p. 32733 (1975). Other amendments were similarly set aside to avoid the necessity of a Senate-House conference and resultant delay. (See supra n. 21.)

⁷⁶ 1975 Senate Report, supra n. 8 at 5 (emphasis added).

⁷⁷ Ibid., at 8.

⁷⁸ See, especially, the comments of Senator Mansfield, Congressional Record. Vol. 121, p. 32679 (1975). See also the remarks of Senators Hollings, Biden, and Clark, ibid., at 32333, 32731, 32749. Cf. one of the reasons cited by the House International Relations Committee for taking almost a month to deliberate on the Sinai technicians: ‘There was a need to avoid the kind of haste which in times past sometimes accompanied congressional action involving national commitments: for example, the Gulf of Tonkin Resolution”. 1975 House Report, supra n. 9 at 2. In the Gulf-of-Tonkin Resolution, which was enacted on August 10, 1964 (Public Law 88–408, 78 Stat. 384), Congress had approved and supported the President's use of force to repel attacks against U.S. armed forces and to assist South Vietnam “in defense of its freedom”. The resolution had been sought by the Johnson Administration following reported North Vietnamese attacks on U.S. naval vessels in the Gulf of Tonkin in early August 1964, and congressional action had been very swift and near-unanimous. In subsequent years, the resolution was widely viewed as a turning point in U.S. involvement in Vietnam, and it came to symbolize the Vietnam debacle. The resolution was formally repealed by Public Law 91–672, Sec. 12, 84 Stat. 2055 (1971).

⁷⁹ See, e.g., Congressional Record, Vol. 121, pp. 32737–32738 (1975) (Senator Mathias).

⁸⁰ See, e.g., ibid., at 32333 (Senator Hollings), 32407 (Representative Gaydos), 32679 (Senator Mansfield), and 32722 (Senator Allen).

⁸¹ See, especially, the comments of Senator Hollings, ibid., at 32334–32337 passim; and cf. Senator Biden, ibid., at 32327. The main lesson of Vietnam, according to Hollings, was that “if we ever had Americans go again, the President, the Congress and the people would all go together”. Ibid., at 32334.

⁸² Senate 1975 Hearings, supra n. 10 at 217–218. See also House 1975 Hearings, supra n. 9 at 7.

⁸³ The Administration was prepared to accept mandatory withdrawal of the technicians in the event of Egyptian-Israeli hostilities. Senate 1975 Hearings, supra n. 10 at 217.

⁸⁴ Moreover, Kissinger noted, once Congress approved the Sinai Resolution, the 200-man ceiling could not be exceeded without congressional consent, Ibid., at 218.

⁸⁵ See Congressional Record, Vol. 121, pp. 32323–32340, 32382–32434, 32665–32759 passim (1975).

⁸⁶ Ibid., at 32681. Senator Humphrey noted that some 357 Americans had been assigned to UNTSO in 1947–48; between 1950 and 1973, their number had varied between 8 and 20; and following the Yom Kippur War, 36 Americans operated as part of UNTSO, counterbalancing an equal number of Russian observers. Several other legislators also emphasized the absence of novelty in having an American peacekeeping presence in the region. See further infra, n. 132.

⁸⁷ Representative Burton thought that the press too had examined the Sinai Resolution “with perhaps more care and scrutiny than any resolution ever reported out of the Committee on International Relations”. Congressional Record, Vol. 121, p. 32393 (1975). See also the statement in that Committee's report, cited supra n. 78.

⁸⁸ See ibid., at 32413 (Representative Heckler), 32739 (Senator Javits), 32741 (Senator Stennis). On the War Powers Resolution as a safeguard, see further infra, this section, at nn. 124, 140–143.

⁸⁹ See 1975 House Report, supra n. 9 at 40 (Additional Views of Representatives Solarz, Rosenthal, and Charles Wilson).

⁹⁰ On the issue of risk, see infra, this section. On the benefits to the United States, see Sec. V, infra.

⁹¹ See Sec. 3 of Public Law 94–110, October 13, 1975, 89 Stat. 572.

⁹² See 1975 Senate Report, supra n. 8 at 8; 1975 House Report, supra n. 9 at 17. The House Committee referred not only to the CIA, but also to employees of any “foreign intelligence gathering agency of the U.S. Government”. Ibid. The Committee also made it clear that it did not want people recently retired from the military intelligence services to participate. Congressional Record, Vol. 121, p. 32385 (1975). Subsequently, the Acting Legal Adviser of the State Department determined that the congressional guidelines did not rule out the participation of retired military or intelligence personnel if their retirement occurred before October 13, 1975 (the date on which the Sinai Resolution was enacted) and if they had not retired for the purpose of joining the SFM. “Watch in the Sinai”, supra n. 1 at 6–7.

⁹³ A feeling of unease over the unilateral and open-ended nature of the proposed Sinai warning system pervaded the congressional proceedings and was shared even by strong supporters of the joint resolution. The congressional preference for short-term, multilateral commitments derives from historical roots pre-dating Vietnam but was undoubtedly reinforced by the Vietnam debacle.

⁹⁴ Sec. 4, Public Law 94–110, October 13, 1975, 89 Stat. 572–573. Prompt hearings were to be held by the “appropriate” congressional committees on the reports, and the committees were to convey their own conclusions to Congress. The words “ending or” were appended on the House floor on the initiative of Representative Biaggi, who wished thereby to prevent “an unlimited commitment of U.S. personnel” and to avoid “another Gulf of Tonkin resolution”. Congressional Record, Vol. 121, p. 32433 (1975). See also 1975 House Report, supra n. 9 at 17. Congress, however, rebuffed the attempts of some legislators to incorporate a mandatory termination date in the resolution. See further infra this section, at nn. 110–122; and see, in general, the discussion on removal of the Sinai technicians. Subsequently, technological improvements did permit the reduction of the number of American personel from the 200-man ceiling, but not the elimination of the U.S. presence. As for substituting other nationals, when the possibility was raised with Egypt and Israel in 1977, both expressed strong opposition to it, viewing it as a unilateral revision of the Sinai arrangements. See the Fourth Report to Congress on the SFM, October 13, 1977, p. 3.

⁹⁵ See citations in n. 5, supra. Representatives Zablocki and Findley interpreted these provisions to mean that the outbreak of hostilities would not terminate the agreement but would only cause the temporary suspension of its operation. 1975 House Report, supra n. 9 at 30. See also Congressional Record, Vol. 121, pp. 32391–32392 (1975), in which Representative Findley noted that a congressional decision to withdraw the technicians, by means of a concurrent resolution, would also not terminate the agreement as far as the executive was concerned. Both representatives therefore sought to have Congress adopt a mandatory termination date. See further infra, this section.

⁹⁶ Congress rejected an amendment proposed by Representative Eckhardt which would have required withdrawal of the technicians if any hostilities erupted or threatened in the Sinai (as, for example, hostilities due to Palestinian or Iranian actions). See ibid., at 32431–32432.

⁹⁷ Sec. 1, Public Law 94–110, October 13, 1975, 89 Stat. 572. Any such concurrent resolution was, according to Sec. 2, to be given privileged expedited treatment, similar to that provided for in the War Powers Resolution for congressional action to remove U.S. armed forces from war or war-threatening situations. On the present invalidity, in U.S. domestic law, of the legislative veto provisions contained in the Sinai Resolution and the War Powers Resolution, see infra, n. 101. The provision in Sec. 1 might also have conflicted with the international legal obligations of the United States undertaken in paras. 7 and 8 of the Proposal.

⁹⁸ See the discussion of the Eckhardt amendment, infra, at nn. 123–143.

⁹⁹ See, for example, the remarks of Senators Javits, , Roth, , Stennis, , Taft, , and Humphrey, . Congressional Record, Vol. 121, pp. 32667–32668, 32732, 32741, 32748, 32756 (1975)Google Scholar. More skepticism set in subsequently regarding the efficacy of the War Powers Resolution. See, e.g., Glennon, Michael J., “The War Powers Resolution Ten Years Later: More Politics than Law”, (1984) 78 Am. J. Int'l L. 571–581CrossRefGoogle Scholar; Holt, Pat M., The War Powers Resolution: The Role of Congress in U.S. Armed Intervention (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1978)Google Scholar; Pomerance, Michla, “United States Foreign Relations Law After Chadha”, (1985) 15 Calif. Western Int'l L.J. 300–301Google Scholar. See also Javits, Jacob K., “War Powers Reconsidered”, (1985) 64 Foreign Affairs 130–140Google Scholar. The War Powers Resolution (Public Law 93–148, 87 Stat. 555 [1973]) represented the culmination of congressional attempts, in the wake of Vietnam, to restrain “presidential warmaking”. Enacted into law on November 7, 1973 over the veto of President Nixon, the Resolution, in its main provisions, required the President to consult with Congress “in every possible instance” before introducing U.S. armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances”; to report to Congress within 48 hours after troops are introduced into such war or war-threatening situations; and to withdraw such forces within 60 (or in some cases, 90) days unless Congress authorizes the continued presence of the troops. Within the 60 or 90-day period, Congress reserved to itself the right to withdraw the troops by adopting a concurrent resolution. (But as to the present invalidity of this “legislative veto” provision, see infra, n. 101.) For other provisions of the War Powers Resolution see supra, n. 54 and infra, nn. 124–125 and accompanying texts.

¹⁰⁰ The importance attributed to this procedure can be gauged from, e.g., the defense of the Sinai Resolution presented by Senators Humphrey, and Javits, , Congressional Record, Vol. 121, pp. 32738–32739 (1975)Google Scholar.

¹⁰¹ See, especially, the comments of Representative Findley, ibid., at 32418. On the constitutionality of the legislative veto procedure, see also the reservations of Representative Eckhardt, ibid., at 32392, 32418, 32421, and the affirmation of the constitutionality of the procedure by Representative Bingham, ibid., at 32421. Legislative-veto provisions are clauses inserted in regularly adopted statutes which seek to reserve to Congress the power subsequently to veto executive decisions by the adoption of “simple” (one-House) or “concurrent” (two-House) resolutions which are not presented to the President for his assent and are not subject to his veto. Long controversial, the legislative-veto device was, in effect, invalidated by the Supreme Court in 1983 in the landmark case of Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). Questions may, therefore, now be raised regarding the continued validity of statutes (such as the Sinai Resolution and the War Powers Resolution) in which legislative vetoes appear. If the veto provisions were such essential safeguards, were they, then severable from the rest of the statutes in which they appeared? See, in general, Pomerance, ‘United States Foreign Relations Law”, supra n. 99; and see, especially, the discussion of severability, ibid., at 282–289.

¹⁰² see Additional Views of Representatives Zablocki and Findley, 1975 House Report, supra n. 9 at 29; and the floor comments of Representative Findley and Senator McClure, , Congressional Record, Vol. 121, pp. 32419, 32685 (1975)Google Scholar.

¹⁰³ Ibid., at 32423 (Representative Leggett).

¹⁰⁴ Ibid., at 32685 (Senator McClure).

¹⁰⁵ See, e.g., ibid., at 32679, 32733 (Senators Mansfield and Helms); and Senate 1975 Hearings, supra n. 10 at 119 (Senator Biden).

¹⁰⁶ Congressional Record, Vol. 121, p. 32432 (1975).

¹⁰⁷ See, especially, the comments of Senator Mansfield, quoted infra, n. 138.

¹⁰⁸ See, e.g., Congressional Record, Vol. 121, pp. 32398, 32412 (1975) (Representatives Shuster and Ichord). For the justification of the U.S. Sinai presence offered by the Administration and the Sinai Resolution's supporters, see infra, Sec. V, at nn. 145–147.

¹⁰⁹ Congressional Record, Vol. 121, pp. 32668, 32676 (1975) (Senators Abourezk, and Nelson, )Google Scholar. The S.S. Mayaguez, a U.S. merchant ship with 39 crew members aboard, was seized by Cambodia on May 12, 1975, in an area which Cambodia claimed was part of its territorial waters but which was seen by the U.S. as part of the high seas. President Ford despatched over 1,000 U.S. marines to retrieve the ship and rescue its crew (which had been transferred to Koh Tang Island). Congress was not consulted before the rescue operation, but after its completion the President reported to Congress in accordance with Sec. 4(a)(1) of the War Powers Resolution. He premissed his actions on his constitutional executive and commander-in-chief powers. Although the Senate Foreign Relations Committee issued a statement in support of the President's action, the incident aroused controversy both because of the failure of prior consultation and the feeling in many quarters that force had been used unnecessarily (before all diplomatic efforts had been exhausted) and excessively. (The number of Marine casualties was greater than the number of crew members rescued in the operation.)

¹¹⁰ The Findley amendment provided for a two-year expiration date, ibid., at 32418; the Helms amendment sought a one-year limit, ibid., at 32733; and the Mathias amendment would have had congressional authority lapse on February 1, 1977, ibid., at 32737. Under all of the amendments, Congress would have to take positive action (by statute, joint, or concurrent resolution) to extend the President's authority to station the technicians.

¹¹¹ 1975 House Report, supra n. 9 at 30 (Zablocki-Findley Additional Views).

¹¹² Congressional Record, Vol. 121, p. 32418 (1975) (Representative Findley).

¹¹³ Ibid., at 32391–32392. With such an expiration date, however, the United States might be violating its international obligations to the parties, undertaken in the Proposal. Sec also supra n. 97. And see the comments of Secretary Kissinger, Senate 1975 Hearings, supra n. 10 at 223.

¹¹⁴ See supra, text accompanying nn. 104–106.

¹¹⁵ Congressional Record, Vol. 121, p. 32388 (1975) (Representative Findley).

¹¹⁶ 1975 House Report, supra n. 9 at 30 (Zablocki-Findley Additional Views).

¹¹⁷ See supra, nn. 97, 100, and 101, and accompanying text.

¹¹⁸ Congressional Record, Vol. 121, p. 32396 (1975) (Representative Whalen). And cf. the statement of Senator Nelson to the effect that it was not the Tonkin Gulf Resolution which changed the course of American involvement in Vietnam; it was congressional consent to the necessary appropriations which did. “If there had never been a Tonkin resolution, if we had never heard of Tonkin, the same event would have occurred. Tonkin did not authorize it, Congress did”. Ibid., at 32678. On the question of whether the authorization and appropriations process would give Congress an effective veto, see the Pell-Kissinger exchange, Senate 1975 Hearings, supra n. 10 at 223–224. Senator Pell thought that using the power of the purse would be a “kind of backhanded way” of limiting the open-endedness of the American commitment.

¹¹⁹ See, e.g., the comments of Representatives Stratom, Bingham, and Biester, and of Senator Humphrey, , Congressional Record, Vol. 121, pp. 32423, 32425–32426, 32737 (1975)Google Scholar. Senator Humphrey noted that the UN forces were not to be withdrawn for at least three years.

¹²⁰ Ibid., at 32425, 32422, 32424 (Representatives Biester and Buchanan).

¹²¹ The Findley amendment was defeated on the House floor by a 287–122 vote, ibid., at 32426–32427; the Helms amendment was set aside by a voice vote in the Senate, ibid., at 32737; and Senator Mathias decided to withdraw his amendment, ibid, at 32740. Earlier, the House International Relations Committee had defeated a Zablocki amendment incorporating a two-year limit on the congressional authorization. Ibid., at 32387–32388.

¹²² Ibid., at 32427.

¹²³ On the constitutional issue, Representative Eckhardt argued that the amendment would disturb the inherent authority of the President. Ibid., at 32428. And see the discussions, ibid., at 32428–32429. See further infra at nn. 140–143, on the more extensive Senate debates regarding the legal and political issues which this kind of amendment raised.

¹²⁴ On the significance of the disclaimer in the War Powers Resolution, see Pomeranee, “United States Foreign Relations Law”, supra n. 99 at 225–226, and the references there cited.

¹²⁵ Although some representatives felt that the Eckhardt substitute was unnecessary and might even imply that some Presidential warmaking powers were inherent in the Sinai Resolution, the Eckhardt amendment was adopted by a 124–71 vote. Congressional Record, Vol. 121, p. 32429 (1975).

¹²⁶ The Abourezk amendment would have gone furthest, expressly prohibiting the Administration from using any U.S. Armed Forces personnel or military equipment to protect the Sinai technicians. Ibid., 32669. (Originally, Senator Abourezk had contemplated proposing a similar ban on funds, personnel or equipment “to protect, insure or guarantee any oil shipments to Israel”. Ibid., at 32666.) Recognizing that the Abourezk amendment had gone too far since it would preclude even the use of army helicopters (and even, as Senator Humphrey observed, camels or donkeys, ibid., at 32670), Senator McClure would have limited the ban to the use of U.S. military personnel or equipment employed “in combat”. Thus, the equipment and personnel would be limited to non-combat operations. Ibid., at 32672.

¹²⁷ See, especially, the debates, ibid., at 32403–32404, 32427–32429, 32665–32686.

¹²⁸ See, e.g., ibid., at 32385 (Representative Morgan). See also 1975 House Report, supra n. 9 at 41 (Broomfield Additional Views).

¹²⁹ Congressional Record, Vol. 121, p. 32671 (1975) (Senator Humphrey).

¹³⁰ ibid., at 32389 (Representative Derwinski). To the same effect, see ibid., at 32390, 32400 (Representatives Hays and Solarz). Or, as Senator Humphrey exclaimed: “A risk? Of course. It is a risk to walk out of this building. It is a risk to walk across the street. The only people who have no risk are in tombs. It is a risk to be born. Where are these riskless people?” Ibid., at 32682.

¹³¹ Ibid., at 32390, 32400 (Representatives Hays and Solarz). See also 1975 House Report, supra n. 9 at 40 (Solarz-Rosenthal-Wilson Additional Views).

¹³² See n. 86, supra (figures cited by Senator Humphrey) and accompanying text. See also Congressional Record, Vol. 121, pp. 32397, 32400, 32407 (1975) (Representatives Maguire, Solarz and Waxman); and ibid., at 32680, 32748, 32755 (Senators Stone, Ribicoff and Percy). See also the testimony of Under Secretary of State Siseo, House 1975 Hearings, supra n. 9 at 32.

¹³³ See the report of Representatives Koch, and Early on their Middle East visit, Congressonal Record. Vol. 121, p. 32402 (1975)Google Scholar; and the comments of Senator Tunney, ibid., at 32745. Representative Long of Maryland pointed out that the numerous other Americans stationed in the Middle East were there without the safeguards contained in the Sinai Resolution. Ibid., at 32395.

¹³⁴ See ibid., at 32425–32426 (Representatives Badilloand Addabo).

¹³⁵ See ibid., at 32412, 32419, 32333, 32722 (Representatives Ichord and Findley, Senators Hollings and Allen).

¹³⁶ 1975 House Report, supra n. 9 at 25 (Zablocki Supplemental Views) (emphasis in original). Senator Mansfield and others also worried that a precedent was being established for direct American involvement at a later stage in the Golan and the West Bank. See Congressional Record. Vol. 121, p. 32678 (1975).

¹³⁷ See, e.g., the comments of Representative Hays, Representative Long (of Maryland), Senator McClure, and Senator Nelson, ibid., at 32391, 32395, 32672–32673, 32678. The purpose of the McClure amendment (see supra, n. 126) was to make clear in advance the absence of any American obligation or presidential com petence to remove the technicians by force.

¹³⁸ See, especially, the remarks of Senator Mansfield (who nevertheless voted for the McClure amendment): “Is the American flag any less involved because they will be civilians? Are assigned civilians any less deserving of protection by their Nation? I think not. A national commitment will be involved, either way”. Ibid., at 32679.

¹³⁹ As Senator Case observed, in opposing the McClure amendment: “It introduces a strange, an unnatural, a repulsive concept into the relations between the U.S. Government and its citizens who are carrying out a mission for the peace of the world”. Ibid., at 32686.

¹⁴⁰ See the explanation by Representative Eckhardt, ibid., at 32428–32429. And see supra, nn. 123–125 and accompanying text.

¹⁴¹ Congressional Record, Vol. 121, p. 32666 (1975). The War Powers Resolution mentions 60 and 90-day periods. Senator Humphrey mistakenly referred to a 30-day period, to which Senator Abourezk objected that even a 30-day period was too long in the Middle East context since none of the last four wars in the region had lasted 30 days. Ibid.

¹⁴² Ibid.

¹⁴³ Ibid., at 32670. See also ibid., at 32668–32669. Senator Javits' position was somewhat different. He embraced a more restrictive view of the President's constitutional authority than did Senators Humphrey and Griffin, deeming the matter of rescuing endangered Americans by the use of force to be in a “very twilight zone”. Nevertheless, he conceded the right of the President to opt for a different constitutional interpretation and to act on that basis:

“We cannot resolve the question of the constitutional power…and hence we derogate from our own authority if we try it; because it will just be wastepaper. We are better off leaving the law exactly as it is, and that is what Representative Eckhardt's amendment sought. It was unnecessary. He just wanted to take the precaution of leaving the law as it is.” (Ibid., at 32671).

It is arguable that the disclaimer in the War Powers Resolution was no more necessary than the Eckhardt amendment since there too Congress could not, in any event, legally resolve the matter of constitutional interpretation for the President. See supra, n. 124 and accompanying text. Senator Javits relied heavily on the congressional power under the War Powers Resolution to withdraw troops, and under the Sinai Resolution to withdraw the technicians, at any time. See supra, nn. 97–101 and accompanying text. Senator Abourezk's own position was that the War Powers Resolution had added to the President's constitutional authority by granting him a period in which he might engage in presidential warmaking; and that it was therefore necessary and desirable that Congress withdraw such authority in relation to the rescue of the Sinai technicians.

¹⁴⁴ See, e.g., Congressional Record, Vol. 121, p. 32408 (1975) (Representatives Wax-man and Burke).

¹⁴⁵ House 1975 Hearings, supra n. 9 at 3. Kissinger prefaced his remarks by stating that “the survival and security of Israel have been a principal American national objective since the days of President Truman, and this fact alone has involved the United States in the diplomacy and in the conflicts of the Middle East for all of the post-war period”. Ibid.

¹⁴⁶ Kissinger referred to the faith which both parties placed in the United States, Israel's lack of confidence in some of the members of the UN force, and the complicated nature of the technical equipment which would have to be operated. Ibid., at 7. Most legislators accepted (albeit hesitantly) the political and psychological justifications; but some found the technological argument less than persuasive. See, e.g., the comments of Representatives Hays and DuPont, , Congressional Record, Vol. 121, pp. 32387, 32393 (1975)Google Scholar. Israel's unwillingness to view the UN force alone as a credible deterrent to a future conflict was sympathetically understood by many legislators, who recalled the precipitate withdrawal of UNEF in 1967 and the current anti-Israel bias in the UN. See, e.g., ibid., at 32397, 32408 (Representatives Maguire and Burke).

¹⁴⁷ On the manner in which the United States came reluctantly to agree to participate in the tactical early warning system, see, especially, Kissinger's testimony, House 1975 Hearings, supra n. 9 at 6–7; 1975 House Report, supra n. 9 at 12–13. And see supra n. 9. For the assertion that U.S. participation in the early warning system was the idea of the American government rather than of the two parties, see Representative Zablocki's Supplemental Views, 1975 House Report, supra n. 9 at 25–26.

¹⁴⁸ See, e.g., the comments of Representative Holt and Senator Stennis, , Congressional Record, Vol. 121, pp. 32415, 32742 (1975)Google Scholar.

¹⁴⁹ See, especially, ibid., at 32335, 32406, 32412, 32425, 32679, 32736, and 32754–32755 (Senator Hollings; Representatives Gaydos, Ichord, and Bennett; and Senators Mansfield, Randolph, and Stevenson). See also 1975 House Report, supra n. 9 at 30 (Zablocki-Findley Additional Views). Doubts were also expressed regarding the essentiality of the American role in Sinai peacekeeping. If the parties had a genuine interest in maintaining the Sinai Accords, then non-participation of the United States, it was reasoned, would not vitiate the Agreement. See, especially, Congressional Record, Vol. 121, p. 32334 (1975) (Senator Hollings).

¹⁵⁰ See, e.g., ibid., at 32724 (Senator Haskell); Senate 1975 Hearings, supra n. 10 at 4 (Senator Abourezk). See also the testimony of George Ball, ibid., at 31, 47–48. But cf. Secretary Kissinger's response to Senator Percy denying that the United States would lose leverage with Israel. The role assumed by the United States in 1975, Kissinger insisted, “would unlock the door of the peace process rather than slam it”. Ibid., at 231.

¹⁵¹ Congressional Record. Vol. 121, p. 32389 (1975).

¹⁵² Preamble, Public Law 94–110, October 13, 1975, 89 Stat. 572.

¹⁵³ The U.S. Constitution, in the words of Corwin, Edward S., “is an invitation to struggle for the privilege of directing American foreign policy.” The President: Office and Powers, 1787–1957, (New York: New York University Press, 4th rev. ed., 1957) 171Google Scholar.

¹⁵⁴ See, in general, Sundquist, James L., The Decline and Resurgence of Congress (Washington, D.C.: Brookings Institution, 1981) Chap. 10Google Scholar; and Franck, Thomas M. and Weisband, Edward, Foreign Policy by Congress (New York and Oxford: Oxford University Press, 1979)Google Scholar. And see, in the matter of executive agreements, Pomerance. “United States Foreign Relations Law”, supra n. 99 at 259–260.

¹⁵⁵ See supra, n. 101.

¹⁵⁶ See Secs. 4 and 6, Public Law 97–132, December 29, 1981, 95 Stat. 1693–1696.

¹⁵⁷ See, e.g., Church, Frank, “Of Presidents and Caesars”, in Goldwin, Robert A. and Clor, Harry M. (eds.), Readings in American Foreign Policy, (New York: Oxford University Press, 2nd rev. ed., 1971) 46–57Google Scholar; Fulbright, J. William, The Crippled Giant: American Foreign Policy and its Domestic Consequences (New York: Vintage Books, 1972) 204–227Google Scholar. Even agreements on U.S. bases (in Spain and the Azores, for example) were concluded as sole executive agreements, something which particularly irked many Senators. See ibid., at 218–220, 227.

¹⁵⁸ Sec. 2(c) of the Special International Security Assistance Act of 1979, Public Law 96–35, July 20, 1979, 93 Stat. 89; Sec. 7(a) of the Multinational Force and Observers Participation Resolution, Public Law 97–132, December 29, 1981, 95 Stat. 1693, 1696.

¹⁵⁹ Senate 1975 Hearings, supra n. 10 at 235.

¹⁶⁰ The factual context of 1981 was, of course, also different. There was greater legislative involvement from an early stage; the MFO was to prop up a peace treaty and not another interim arrangement (although the legislators thought it anomalous that a permanent peace treaty should require such arrangements); there was less secret diplomacy than in the Kissinger era; more time had elapsed since Vietnam; and Sadat's death also acted as a catalyst to congressional consensus.