On October 1, President Donald J. Trump issued an executive order giving Qatar a security guarantee—something the Constitution reserves for the treaty-making process set out in the Constitution. By acting unilaterally, the president has bypassed the constitutional requirement that two-thirds of the Senate approve such a significant U.S. commitment by giving its “advice and consent.”
In the executive order, President Trump has pledged that if Qatar is attacked, “the United States shall take all lawful and appropriate measures — including diplomatic, economic, and, if necessary, military — to defend the interests of the United States and of the State of Qatar and to restore peace and stability.” The language is similar to the guarantee provision in the 1960 US–Japan Security Treaty:
“Each Party recognizes that an armed attack against either Party…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.”
Similar, but not the same. Notable is the absence of any reference to “constitutional provisions and processes”—perhaps not a surprising omission given the White House’s expansive views of the president’s powers.
Defenders of the order might argue that, precisely because it is not a treaty, the security guarantee will not be binding on a future president. True enough. That point, however, ignores the bind today’s order will place on a future president. Diplomatically and strategically, any future administration would likely face significant costs to overturning the order. Potentially at risk would be the Air Force’s use of its main air base in the Middle East. Al Udeid Air Base near Doha, Qatar is home to approximately 8,000 US military personnel and serves as the command and logistics center for US and allied air force operations in the region.
So far, it’s been crickets from Senate Republicans about preserving the upper house’s treaty-making prerogative. A little history might remind them of what they should be doing.
In 1953, the Truman administration signed a base agreement with Gen. Francisco Franco’s Spain. In exchange for the right to construct and man several military bases there, the US agreed to provide Spain with arms and economic aid. The agreement was concluded as an “executive agreement”—meaning it was an international accord signed by the president that, under US practice, is understood to entail matters of less significance than a treaty. In this case, with no American defense commitment to Spain and the quid pro quo character of the accord’s terms, the agreement was more akin to a rental agreement, with the US as a tenant, than anything else.
By the end of the decade, however, the Soviet Union’s strategic arsenal was capable of striking Spain and the American bases there. And the naval base at Rota in particular had become an obvious target since it was a homeport for the all-important Navy Polaris submarines. Not surprisingly, Spain’s government wanted more from the US. Madrid wanted a security treaty with Washington.
Given the unpopularity of Franco’s regime in the US and a growing reluctance in Washington to add another security treaty to the lengthy list of accords already on the books with states in Europe and Asia, John F. Kennedy’s administration attempted to square the circle by signing an executive agreement with Madrid in 1963 with language aping existing security treaties:
The two governments recognize that the security and integrity of the both the United States and Spain are necessary for the common security. A threat to either country, and to the joint facilities that each provides for the common defense, would matter of common concern to both countries, and each country would take such action as it may consider appropriate within the framework of its constitutional processes.
Because it was a unilateral executive agreement and not the hard and fast guarantee of a treaty, Spain was not satisfied. As a result, it eventually moved to terminate the base agreement altogether. Initial administration efforts to re-up some form of security commitment were met with increasing pressure from the Senate to take such an offer off the table or, if not, submit the accord with the security language to the Senate for its “advice and consent.”
At the time, the debate over the Spanish agreement was part of a larger debate that centered on whether the combination of the president’s authority as commander-in-chief and his duty to protect the troops and their bases overseas had effectively drawn the US into defense commitments with the nations in which those forces were stationed. Adding common security provisions to the base agreements only further confirmed Senate fears that the president was circumventing the chamber’s role in treaty making.
The Senate failed to force the Nixon administration to conclude a base agreement with Spain as a treaty in 1970. But, by using its power of the purse and other tools at its disposal, it did force the administration both to drop the expansive commitment-like language of the 1963 agreement and publicly assert that no formal security commitment with Spain existed.
Like a cat with nine lives, however, the quasi-commitment to Spain reappeared in 1974, with President Nixon and Prince Juan Carlos, Spain’s then interim chief of state, resurrecting security language largely the same as the 1963 agreement. This time, once the accord was finalized in early 1976 with the broader language included, the Ford administration sent it to the Senate for its approval as a treaty.
The history here is important because it is a reminder of what the Senate, and more broadly Congress, can do to protect its constitutional prerogatives if only it takes its institutional duties more seriously than party allegiance. It might seem like ancient history to some, but the leverage still exists within Congress if members and the leadership have the will to use it.
Failing to respond and push back against Trump’s Qatar security guarantee will set a precedent that only invites more presidential aggrandizement down the road, be it Republican or Democrat.
Gary J. Schmitt is a senior fellow in the Social, Cultural and Constitutional Studies Program at the American Enterprise Institute.
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