June 17, 1999

S. 886 - Foreign Relations Authorization Act of 1999
(Helms (R) North Carolina)

The Administration supports Senate passage of S. 886, but reserves support for final congressional action on the bill pending the disposition of a number of key provisions. The Administration's concerns regarding these provisions must be resolved before the President's senior advisers will recommend that the bill be signed.

The Administration supports the bill's United Nations (UN) arrears payments and reform provisions, which provide authorization or credits equaling $926 million of the $1,021 million requested to help pay U.S. arrears and leverage the reform agenda, and welcomes the inclusion of authorities sought by the Administration. However, the Administration has concerns related to certain appropriation authorizations, embassy security, reorganization, arms control and nonproliferation, and foreign policy provisions, which are described below.

Foreign Relations Appropriation Authorizations

S. 886 provides authorization of FY 2000 appropriations that are generally consistent with the Administration's request; however, the authorizations for the annual assessed Contributions to International Organizations and International Peacekeeping Activities are $43 million less than the President's request, which may lead to more arrears just as our efforts to pay past arrears and implement related reforms begin. Making our full, annual assessed contributions to the United Nations and the Food and Agriculture Organization is an essential first step for the United States to avoid losing its vote in those organizations. In addition, overall appropriation authorizations for FY 2001 are equal to the amount for FY 2000. The Administration notes that its appropriation authorization request for FY 2001 was for "such sums as may be necessary" and reflects the fact that the global foreign policy and security environment is not static.

Embassy Security

The Administration appreciates provisions in S. 886 that provide appropriations authorization for embassy security construction and enhancements. The bill, however, imposes excessive restrictions that will affect the Department's flexibility to fund security construction and enhancements and to manage overseas diplomatic sites to the potential detriment of national security and foreign affairs activities. For example, it is unnecessary and burdensome to require co-location of all U.S. agencies on a single compound (except those under U.S. military command). The Administration maintains a policy requiring co-location unless precluded for specific operational, programmatic, or security reasons. Further, the bill would impose an unnecessary and burdensome new waiver and certification requirement on the Secretary of State for such operational decisions that the Department of State's security professionals are already well positioned to make.

Reorganization and Management Issues

The Administration strongly opposes legislation that would micromanage executive authority and prolong the debate on the reorganization of the foreign affairs agencies. After extensive consultations with Congress on the reorganization, the Administration is eager to implement the President's revised Reorganization Plan and demonstrate its effectiveness. Mandating the position of Assistant Secretary for Verification and Compliance and specifying duties for that position is counterproductive to the Department's streamlining efforts and would impede effective integration of the foreign affairs community.

In addition, the Administration opposes the staffing requirements, caseload limitations, and reporting requirements mandated for the Office of Children's Issues. S. 886 also imposes a number of unnecessary and burdensome reporting requirements on the State Department.

Arms Control and Nonproliferation

A number of the arms control verification and compliance provisions would intrude on the President's foreign affairs authorities, micromanage the Secretary's authority, and raise resource and constitutional concerns. These include:

  • Section 615(b), which would adversely affect the Administration's ability to negotiate arms control, nonproliferation, or disarmament proposals by potentially requiring these proposals to be submitted to Congress, and Section 641, which directs that delegation summaries on arms control or nonproliferation negotiations written for the Secretary be provided to Congress. These provisions invade the confidentiality of privileged diplomatic communications and thus, impair the President's negotiation power. In addition, section 615(b) raises other constitutional concerns under Chadha and would hinder internal Administration deliberations and cause U.S. negotiating partners to be less forthcoming in their dealings with the United States.

  • Section 617, which would require the State Department to reimburse the FBI for costs incurred in connection with inspections under the Chemical Weapons Convention. This is problemmatic due to resource constraints.

  • Section 634, which requires the Administration to notify Congress within 60 days of proliferation related developments. By requiring disclosure of information that may be vital to the national security, this provision intrudes on the President's constitutional powers.

  • Section 637, which would subject export licenses to Hong Kong or Macao to certain verification procedures. Under the Hong Kong Policy Act, the President has the authority to tighten exports controls; therefore, this section implies a lack of confidence in the autonomy and effectiveness of Hong Kong's export control system and could weaken cooperation in preventing the diversion of U.S. technology. With respect to Macao, the Department of Commerce has authority to tighten regulations as necessary and is currently issuing regulations that will recognize its new status after reversion to China.

Foreign Policy Restrictions

A number of provisions of S. 886 restrict the ability of the President and the Secretary of State to conduct American foreign policy. Some of these provisions would also impermissibly infringe on the President's constitutional authorities. These provisions include:

  • The "Political Freedom in China Act" contains provisions that would undermine the U.S. relationship with China and which raise concerns regarding the President's authority to receive ambassadors and other public ministers. These provisions include: requiring the Secretary to establish a registry of political and religious prisoners in China; and denying visas to foreign officials involved in the establishment of forced abortion or sterilization policies.

  • Section 725, regarding Jerusalem. The Administration strongly opposes this section on constitutional, foreign policy, and operational grounds. This section would impermissibly intrude on the President's constitutional authority to conduct foreign affairs and determine recognition by directing U.S. policy regarding Jerusalem as the capital of Israel. The actions called for by these provisions would prejudge the outcome of the Israeli-Palestinian permanent status negotiations and thus would severely undermine U.S. efforts to promote a peaceful resolution of the Arab-Israeli conflict.

  • Section 724, which would require an additional condition on the President's waiver authority regarding the Palestine Liberation Organization (PLO) office in Washington, D.C. The United States remains strongly opposed to a unilateral declaration of a Palestinian state and has worked hard to prevent it, but the proposed new condition would only hinder our continuing role as a necessary intermediary in the Middle East peace process. In light of the PLO's annulment of the objectionable provisions of its Charter and its efforts in the fight against terrorism, the Administration believes it is time for Congress to remove the prohibition on the PLO office so this waiver authority becomes unnecessary.

  • Section 727, which requires the President to vest and liquidate certain blocked Libyan assets to pay for families of the Lockerbie bombing victims to attend the Hague trial of the Libyan terrorists. The Administration supports the provision of assistance to these families, however, this provision, which raises serious legal and policy concerns involving the pending criminal case, claims, and the ability to protect U.S. assets from takings by foreign governments, is no longer necessary because section 3024 of the FY 1999 Emergency Supplemental Appropriations Act (P.L. 106-31) authorized the Department of Justice to provide grants to assist victims of Pan Am 103 and their families. Section 3024 is an appropriate mechanism for providing this assistance.

Other Constitutional Concerns

With respect to other constitutional issues raised by the bill, several sections of S. 886 impermissibly infringe on the President's sole constitutional authority over the conduct of negotiations with foreign nations and international organizations. The provisions are Section 801(g), which states that the United States "shall continue to insist" that the UN make certain credits or refunds of excess contributions; Section 811(b) which provides that it shall be U.S. policy to seek the abolition of certain UN groups; and Section 941(b)(4)(D), which provides that it shall be U.S. policy to seek adoption by the UN of a resolution requiring UN programs to be subject to an evaluation and have specific termination dates.

Pay-As-You-Go Scoring

S. 886 would affect direct spending and revenues; therefore, it is subject to the pay-as-you-go (PAYGO) requirement of the Omnibus Budget Reconciliation Act (OBRA) of 1990. OMB's preliminary scoring estimate is that the net PAYGO effect of this bill would be negligible. Final scoring of this legislation may deviate from this estimate.