Evening star., 1940-09-03


opinion on the constitutional au-
thority OF the President to pro-
ceed Uith negotiations lOith Great
Britain to acquire ofshore naval
and air bases in exchange for de-
stroyers, iDithout a,Daiting con-
pressional action, follo,Us in tuH:
August 27, 1910.
The President,
The White House.
My dear Mr.. President:
In accordance with your request
I have considered your constitu-
tional and statutory authority to
proceed by executive agreement
with the Butish government i'm
mediately to acquire for the United
States certain off-shore naval and
air bases in the Atlantic Ocean
without awaiting the inevitable de-
lays which would accompany the
conclusion of formal treaty.
The essential characteristics of
the proposal are:
(a) The United States to acquire
rights for immediate establishment
and use of naval and air bases in
Newfoundland, Bermuda, the Ba-
hamas, Jamaica, ST. Lucia, Trini-
dad and British Guiana; such
rights to endure for a period of SO
years and to include adequate pro-
visions for access to, and defense
OF, such bases and appropriate pro-
visions for their control.
(b) In consideration it is pro-
posed to transfer to Great Britain
the title and possession of certain
overage ships and obsolescent mill
tary materials now the property of
the United States, and certain other
small patrol boats which though
nearly completed are already OBJ.
soleScent.
Assumes No Responsibility.
(c) Upon such transfer all obli-
cation of the United States is dis
charged. The acquisition consists
only of rights, which the United
States may exercise or not at its
option, and if exercised may aban-
don without consent. The privilege
of maintaining such bases is subject
only to limitations necessary to
reconcile United States use with the
sovereignty retained by Great Brit
ain. Our Government assumes no
responsibility for civil adminiStra-
ton of any territory. 1t makes no
promise to erect structures or main
tain forces at any point. 1t under
takes no defense of the possessions
Of any country. In short, it &C
quires optional bases which may be
developed as Congress appropriates
funds therefor. but the United
States does not assume any contlnu-
ing or future obligation, commit
ment or alliance.
The questions of constitutional
and statutory authority, with which
alone I am concerned, seem to be
these.
First. May such an acquisition be
concluded by the President under
an executive agreement or must it
be negotiated as treaty subject.
to ratification by the Senate?
Second. Does authority exist in
the President TO ALLEVIATE the title
to such ships and obsolescent
materials, and if so, on what con-
ditions?
Third. Do the statutes of the
United States limit the right to
deliver the so-called mosquito
boats" now under construction or
the over-age destroyers by reason
of the belligerent status OF Great
Britain?
l.. Il
There is, of course, no doubt con-
cerning the authority of the Presi-
dent to negotiate with the British
government for the proposed ex-
change. The only questions that
might be raised in connection there
with are ID whether the arrange
ment must be put in the form of a
treaty and await ratification by the
Senate or % whether there must
be additional legislation by the Con-
gress. Ordinarily (and assuming
the absence of enabling legiSlation)
the question whether such an agree
ment can be concluded under presi-
dental authority or whether it must
await ratification by two-thirds
vote of the United States Senate in
wolves consideration of two powers
which the Constitution vests in the
President.
One of these is the power Of the
Commander in Chief of the Army
and Navy of the United States,
which is conferred upon the Presi-
dent by the Constitution. but is not
defined or limited Happily, there
has been little occasion in our his
tory fors the Interpretation of the
powers of the President as Com
mander in Chief of the Army and
Navy. I do not find it necessary to
rest upon that power alone to sus-
tain the present proposal But it
will hardly be open to controversy
that the vesting of such function
in the President also places upon
him a responsibility to use all con-
stitutional authority which he may
possess to provide adequate bases
and stations for the utilization of
the naval and air weapons of the
United States at their highest eff
cheney in our defense. 1t seems
equally beyond doubt that present
world condition forbid him to risk
any delay that is constitutionally
avoidable
Sutherland's Definition Cited.
The second power to be considered
Is that control of foreign relations
which the Constitution vests in the
President as part of the executive
function. The nature and extent
of this power has recently been ex-
plicitly and authoritatively defined
by Mr.. Justice Sutherland, writing
for the Supreme Court, In 1886, in
Omitted States VS.. Curtiss- Wright
Export Corp, ct al" 2o9 U. S. 304,
he said:
ut is important to bear in mind
that we are here dealing not alone
with an authority vested in the
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