The Failed Transparency Regime for Executive Agreements

This article is cross-posted at Lawfare.

 

In late October, the United States and Sudan reportedly signed a bilateral agreement “to resolve claims arising from the 1998 East Africa embassy bombings in Tanzania and Kenya.”  This agreement apparently requires Sudan to pay hundreds of millions of dollars and commits the United States to enact legislation that would restore Sudan’s immunity under the Foreign Sovereign Immunities Act, which it lost when it was deemed a state sponsor of terrorism. A side agreement apparently even included specific legislative text and gave Sudan a veto over any changes to it.

The Sudan agreement was not concluded as an Article II treaty, which must be submitted to the Senate for the advice and consent of two-thirds of the Senators present.  (The Article II process, as we have previously discussed, is now practically dead.)  Instead, like hundreds of other agreements concluded in recent years—and thousands concluded in recent decades—the agreement appears to have been concluded through what is known as an “executive agreement”—a binding international agreement made by the President based on his own constitutional authority or authority granted in advance by Congress.

Despite its importance, the public currently has no access to this agreement.  The executive branch is not required to publish executive agreements until 180 days after they have entered into force.  Nor is this agreement subject to review or approval by Congress.  In fact, the executive branch is not even legally obligated to disclose such agreements to Congress until after the agreements are already binding on the United States.

An article we just published in the Harvard Law Review provides the context for understanding how executive agreements like this one are concluded, disclosed to Congress, and published.  Here, we preview our argument, which is that the transparency provisions that Congress has set up to ensure accountability in this area are in serious need of repair.

The Transparency Regime for Executive Agreements

Let’s start with the system for concluding executive agreements.  We call this the “transparency regime” because it relies almost entirely on disclosure to provide accountability.  This regime has two main components.  First, under the 1972 Case Act, the State Department must submit all international agreements other than Article II treaties to Congress within sixty days after the agreements takes effect.  Pursuant to regulation, the State Department is also supposed to provide Congress with a cover memo for each agreement that, among other things, contains a “precise citation of legal authority” that supports the conclusion of the agreement.  These memos, however, are not disclosed to the public.  Second, the executive branch is required by statute to publish executive agreements within 180 days.  This obligation is subject to numerous regulatory exceptions, however, and as a result only about half of the agreements that the executive discloses to Congress are actually published.

There is very little public information on how this system works, much less whether it serves its accountability aims.  There is also very little public information on how ex ante executive agreements—agreements made based on authority granted in advance by Congress—are actually made, what their legal basis is, or whether that legal basis is proper.  This empirical deficit has been a problem for this area of foreign relations law scholarship, including our own prior work on executive agreements.  It has also been a problem for public accountability of this important aspect of U.S. international lawmaking.

What We Have Learned about How the System Really Works

Several years ago, we sought to address this empirical deficit by filing a FOIA request with the State Department seeking the Case Act cover memos that the Department is required to send to Congress with every reported agreement.  After a lawsuit and a negotiated settlement, the State Department produced 5,689 cover memos reported from January 20, 1989, through January 20, 2017 — that is, during the administrations of Presidents George H.W. Bush, William Clinton, George W. Bush, and Barack Obama.

For almost two years we analyzed this data – with the significant assistance of more than twenty very talented research assistants.  We also conducted extensive interviews with current and former government officials, who worked on executive agreements in the executive branch and in Congress.  The article describes what we found.  In addition, together with the Harvard Law Review and Two-N, we created a website with dynamic data visualizations that allow readers to explore the data themselves.  That site also provides links to the underlying data, which are on Dataverse.

As the article explains, the overall picture that emerges is one of dysfunction and nonaccountability: the executive branch’s reporting to Congress is often late; there is reason to believe that this reporting is incomplete; the entire process is opaque to everyone involved, including executive branch officials and congressional staffers; and Congress is failing in its oversight role. There are also substantial questions about the underlying legal authority for an appreciable number of the agreements.

The article begins by reviewing the legal landscape governing the executive branch’s authority to conclude agreements and the transparency requirements that Congress has imposed, as well as the largely unsuccessful efforts by Congress over the years to improve the reporting process.  It then analyzes the information contained in the thousands of cover memos we received, based on two years of coding by a team of student assistants at Yale whom we supervised.  In addition, the article describes the qualitative information we obtained from interviewing current and former government officials about the reporting process.  Among other things, this portion of the article compares what we found in the cover memos with information that we were able to discern from other sources, including most notably the commercial HeinOnline database of international agreements.

As we explain, this empirical information shows that the transparency regime that Congress established to monitor executive agreements is failing in a number of respects.  The American public has no easy way to learn what binding international agreements have been concluded in their name, and Congress, too, seems to have been left out of the loop on thousands of international agreements in the last few decades.  Moreover, within the executive branch itself, there appear to be significant problems with record keeping, coordination, and monitoring.  Finally, in terms of the output of this system, the executive branch is concluding a majority of agreements without express authority from Congress, and almost one-fifth of the memos cite legal authorities that in our assessment offer no plausible support for concluding an agreement.  There does not appear to be any normative justification for the current state of affairs, which is the product of disorganization within the executive branch, a failure by Congress and the executive branch to allocate sufficient resources to ensure compliance with the law, and outdated regulations and institutional practices.

How to Reform the Broken System

The article then turns to proposed solutions.  Our proposals fall into two categories:

First, we propose that Congress act to remedy the problems in publication and reporting that we have documented.  We propose to do away with the bifurcated reporting/publication regime and simply impose a comprehensive publication requirement, with minor exceptions, akin to the one that has long been in place for federal regulations.  We also propose to reorganize the internal executive branch process for collecting and publishing along the lines of the Federal Register system for regulations.

Second, to address the uncertain legality of many of the agreements, we propose that Congress require the executive branch to offer greater transparency regarding the legal basis for international agreements.  As we note, a simple solution would be to require that the cover memos themselves be published — rather than be kept hidden from public view — and require that they cite a primary legal authority.

For both sets of reforms, we have purposely focused only on ex post transparency in order to avoid unduly undermining executive branch flexibility in the negotiation and conclusion of agreements.  Congress has periodically sought to improve the transparency regime for executive agreements, and we believe that this would be another opportune time for it to do so. 

About the Author(s)

Curtis A. Bradley

William Van Alstyne Professor of Law at Duke Law School, and co-director of the Law School’s Center for International and Comparative Law. You can follow him on Twitter (@CurtisBradley20).

Jack Goldsmith

Henry L. Shattuck Professor at Harvard Law School, Senior Fellow at the Hoover Institution, Former Assistant Attorney General of the Office of Legal Counsel (2003-2004), Former Special Counsel to the Department of Defense (2002-2003). You can follow him on Twitter (@jacklgoldsmith).

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).