This article is cross-posted at Lawfare.
Editor’s note: This article is part of our ongoing series on the National Defense Authorization Act (NDAA) for Fiscal Year 2023.
The National Defense Authorization Act for Fiscal Year 2023 (NDAA), which Congress passed on Dec. 15 and President Joe Biden signed today, contains sweeping new transparency requirements for international agreements. The legislation, led by Senate Foreign Relations Committee (SFRC) Chair Robert Menendez, implements a number of the reforms that we argued for in our 2020 article, “The Failed Transparency Regime for Executive Agreements.” The legislation also for the first time imposes transparency requirements for nonbinding agreements, something that we had also argued for as a possible reform. Before now, those agreements had not been subject to any publication or congressional reporting requirements, even though, as we document in a forthcoming article, they have become a significant part of the United States’ international agreements practice. While there are still important gaps in the oversight regime, this legislative enactment represents the most significant transparency reform for international agreements in a half century.
International Agreement-Making in the United States
The Constitution specifies only one process by which the federal government can make international agreements: Article II provides that presidents can make treaties “by and with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur.” But since the early days of the nation, presidents have also concluded agreements, binding on the nation under international law, based on either authorization in statutes or on their own constitutional authority. Since the 1930s, these “executive agreements” have far outnumbered Article II treaties. From 1939 to 1989, for example, the United States concluded over 11,000 executive agreements and only about 700 treaties. In recent years, the number of Article II treaties has dropped even further.
Congress has sought to regulate executive agreements primarily through a combination of publication and reporting obligations. A statute dating to 1950 requires the State Department to publish non-classified executive agreements within 180 days after they take effect. Since 1994, however, the Department has been allowed to exempt from publication those agreements for which it concludes that “the public interest . . . is insufficient to justify their publication.” State Department regulations currently allow for sixteen categories of agreements to be exempted from publication. In our 2020 article, we found that less than half of the agreements being reported to Congress were getting published.
In the Case-Zablocki Act in 1972, Congress required transmission of executive agreements to Congress within 60 days after they take effect. Pursuant to regulations adopted by the State Department, when the Department sends the agreements to Congress it includes a background statement containing “a precise citation of legal authority.” But these statements are not released to the public. We obtained thousands of these statements in connection with our 2020 article, and we found that the citations to legal authority were hard to parse and often involved a kitchen sink approach, and that in nearly 20 percent of the examples the citations did not appear to provide plausible legal support for the agreement. Congress has amended the Case-Zablocki Act several times in response to late and under-reporting of agreements, and in our 2020 article we found that this under-compliance problem has persisted.
In recent years, the executive branch has increasingly relied on yet another kind of instrument: nonbinding agreements. Nonbinding agreements vary greatly in form and can cover almost a limitless range of topics. They often have all or most of the formal features of a binding agreement, yet they are understood not to create binding international obligations. Well-known examples include the Iran nuclear deal that was concluded by the Obama administration in 2015 and the Trump administration deal with the Taliban committing to the withdrawal of U.S. troops from Afghanistan. As we show in a forthcoming article, “The Rise of Nonbinding Agreements,” high-profile agreements like the Iran deal are simply the tip of the iceberg of a large and under-studied body of nonbinding agreements concluded by the executive branch. Many of these agreements are concluded at the administrative agency level and concern a vast array of subjects, from antitrust enforcement, to tax reform, to nuclear proliferation. Prior to the 2023 NDAA, however, the transparency requirements that applied to binding agreements did not apply to nonbinding agreements. As a result, many international agreements concluded by the United States have been shielded not only from public view but from Congress and sometimes even the State Department itself, which may not know of nonbinding agreements concluded by other agencies.
Transparency Requirements in the 2023 NDAA
The NDAA amends the Case-Zablocki Act in five important respects. First, it strengthens the congressional reporting provisions relating to executive agreements. Instead of requiring that executive agreements be reported within 60 days after they have taken effect (which is sometimes long after they are concluded), the NDAA requires that the State Department report to congressional leadership, the SFRC, and the House Foreign Affairs Committee (HFAC) all executive agreements that are concluded each month. In addition, the legislation requires the Department to provide a “detailed description of the legal authority” that provides support for the agreement. For this legal authority, citations to statutes, treaties, and the Constitution must include the specific provisions that are relevant, and citations to Article II of the Constitution must include an explanation for why it supports the agreement. The State Department must also include a description of any new or amended statutory or regulatory authority anticipated to be required to fully implement each agreement.
Second, the legislation greatly expands the publication of executive agreements. Instead of limiting publication to those agreements that the State Department deems sufficiently within the public interest, almost all non-classified executive agreements must be published on the State Department’s website within 120 days after they enter into force. (There are carveouts for, among other things, various types of military agreements as well as grant agreements.) Moreover, publication will now for the first time include information about the executive branch’s legal authority to conclude the agreements—a gap we highlighted in our 2020 article.
Third, the legislation facilitates greater centralization of, and accountability for, transparency oversight within the executive branch. It builds in several ways on a pre-existing requirement in the Case Act that departments and agencies consult with the State Department before concluding any executive agreement: It requires that any department or agency that concludes an executive agreement must provide the State Department with the text of the agreement, along with the legal authority for concluding it, within 15 days after signing or concluding it. Moreover, each department or agency that enters into executive agreements must designate a “Chief International Agreements Officer” to ensure compliance with these obligations. And at least every three years, the Comptroller General is directed to audit the State Department’s compliance with the reporting and publication obligations. The law appropriates $1,000,000 per year for five years to the State Department to address the additional expenses associated with compliance.
Fourth, the legislation for the first time imposes transparency requirements for nonbinding agreements. The congressional reporting and publication obligations described above apply to what the legislation refers to as “qualifying non-binding instruments.” That category is defined as encompassing nonbinding agreements that “could reasonably be expected to have a significant impact on the foreign policy of the United States” and those that are the subject of a request from the chair or ranking member of either SFRC or HFAC. Qualifying nonbinding instruments falling under either prong of the definition of that term must be reported to Congress and published. Moreover, the legislation requires that the Secretary provide a “detailed description of the legal authority that, in the view of the Secretary . . . provides authorization for each qualifying non-binding instrument . . . to become operative.” Had this provision been in place at the time the Joint Comprehensive Plan of Action (Iran Nuclear Deal) was concluded, for example, Secretary of State John Kerry would have had to not only report and publish the agreement but also cite all of the statutory authorities to waive sanctions that he would have to rely on in order to implement the deal.
Fifth, the legislation defines “text” of an international agreement or qualifying nonbinding instrument to include a range of documents not historically reported or published. It includes “any annex, appendix, codicil, side agreement, side letter, or any document of similar purpose or function . . . that is entered into contemporaneously and in conduction” with the agreement or arrangement. It also defines “text” to similarly include implementing agreements or arrangements. This will likely ensure much greater visibility for Congress and the public into the wide variety of international arrangements, both binding and nonbinding, that the executive branch concludes.
These reforms, most of which we advocated in our 2020 article, represent a major step forward for the transparency of the United States’ international agreements practice. Reporting to Congress about binding executive agreements will now be timelier and contain better information concerning the executive branch’s legal authority for the agreements. Broader publication of executive agreements will also help ensure that interested observers can assist Congress in monitoring the agreements. In addition, for the first time, Congress has mandated transparency requirements for nonbinding agreements, making the United States a world leader in reform in this area. Although only a subset of such agreements is covered by the “significant impact on foreign policy” standard, others will be covered by the SFRC/HFAC chair or ranking member request mechanism. The designation of compliance officers within the executive branch and the mandatory GAO audits will likely further increase the effectiveness of the mandates.
As is perhaps inevitable in any compromise legislation, there are gaps and limitations that Congress might consider addressing in future legislation. The legislation exempts from the definition of “non-binding instrument” any agreement “that is signed or otherwise becomes operative or is implemented pursuant to the authorities relied upon by the Department of Defense, the Armed Forces of the United States, or any element of the intelligence community.” This exemption excludes what is likely a large number of military and intelligence agreements from the new transparency requirements. The legislation also maintains and expands carveouts from publication requirements for international agreements and nonbinding instruments dealing with various military matters. These exemptions create a major gap in the new oversight regime. As part of the work on our new article, we have settled a lawsuit against the DOD brought under FOIA in which the Department has identified more than six thousand nonbinding agreements, which it is in the process of producing under our settlement agreement. This dwarfs the number of agreements identified by any other government agency. Based on our current data, the DOD has concluded far more nonbinding agreements than all other agencies in the United States combined since 1989. The carveout for agreements concluded by the DOD therefore means that Congress—and the public—will likely remain blind to the majority of nonbinding agreements concluded by the U.S. government in the years to come. The onus now should be on the armed services committees to move forward with legislation to provide proper congressional oversight of agreements exempted from current transparency mechanisms.
In addition to that carveout, the automatic reporting and publication requirements in the legislation apply only to nonbinding agreements that the State Department deems to have a “significant impact” on U.S. foreign policy, thus excluding those that it deems not to have such an impact. This will give the executive branch substantial discretion to withhold additional nonbinding agreements from publication and reporting, at least unless and until they are requested by a chair or ranking member of SFRC or HFAC. As we found in our 2020 article, similar discretion led the Department to publish fewer than half of binding executive agreements. Congress should consider broadening the law’s coverage of nonbinding agreements.
Another issue not addressed in the NDAA concerns the need for greater clarity in whether agreements are binding or nonbinding. The State Department has issued drafting guidance to help avoid ambiguity, but we have found that this guidance is often ignored in practice. In addition to creating potential foreign relations difficulties, this ambiguity likely leads to under-reporting of binding agreements. Under the NDAA, there is still a significant difference between the reporting obligations for binding and nonbinding agreements, so ensuring that agreements are classified correctly will be important, especially since Congress is now trying to achieve near-total transparency for the binding ones. (It is possible that the agencies’ new duties to send the State Department significant nonbinding agreements will provide a vehicle for State to bring greater clarity to the binding/nonbinding distinction. That would be a welcome development.)
Finally, it may be that Congress will need to add to its own resources to ensure compliance with its transparency mandates. The NDAA provides additional funding to the State Department but does not add staff or other resources on the congressional side. Greater reporting may not mean much if Congress lacks the time and other resources to review what is submitted. Congress already has difficulty properly reviewing the information received in Case Act reports. The greater flow of information that will be generated by the NDAA is likely to make that problem more pronounced.
Although there is room for further improvement, the transparency reforms in the NDAA are a major achievement in congressional oversight of foreign affairs. Achieving this reform required extraordinary commitment from staff and members of Congress, and a willingness by the executive branch to accept the additional oversight. These reforms should set an example for other countries that face similar transparency challenges for international agreements.