Foreign Relations of the United States, 1969–1976, Volume XXXII, SALT I, 1969–1972

282. Memorandum From Philip Odeen and Helmut Sonnenfeldt of the National Security Council Staff to the President’s Assistant for National Security Affairs (Kissinger)¹

Washington, May 19, 1972.

SUBJECT

• Congressional Approval of the SALT Agreements

The exact manner in which we should seek Congressional approval of the SALT Agreements is still unresolved. Moreover, the issue should be decided before the President returns from Moscow so that the appropriate documents can be prepared.

Some decisions have, of course, been made. The President has decided that the ABM agreement should be a treaty and that the interim offensive agreement should be an executive agreement. Further, he has expressed interest that the House of Representatives play an important role.

The remaining issues revolve around:

• —Whether the Senate and House should have equal status in approving the Interim Agreement.
• —Whether the House of Representatives should consider the ABM Treaty.

Interim Agreement

The President could seek approval of the Interim Agreement in either of two ways:

• —A joint resolution requiring a majority vote by both the Senate and the House.
• —A 2/3 vote of the Senate, with a resolution (by majority vote) from the House.

Majority vote by both. This is the normal procedure for obtaining Congressional approval of executive agreements.

• —The House would surely feel that it has a large role to play.
• —The Senate might object to this treatment as inconsistent with its constitutional powers with respect to treaties. However, both the President and Ambassador Smith have already indicated publicly that they believe the interim nature of the agreement is such that it is something less than a treaty. Moreover, the provision in the Interim Agreement that the agreement will not enter into force until the ABM Treaty is ratified effectively gives the Senate a separate veto over entry into force of the Interim Agreement.

Two-thirds Senate vote. Seeking a 2/3 vote from the Senate would effectively treat the agreement as a treaty. A recent example is the U.S.-Japanese agreement on Okinawa reversion; it was phrased as an agreement, but was handled in Congress as a treaty.

To achieve his objective of participation by the House, the President still would seek a majority vote from the House. The President could give this vote some significance by saying that the U.S. would not ratify the agreement without the approval of the House (as well as the Senate).

Without this Presidential statement, the House vote would be without legal effect. It could, however, have important political implications; House resolution which included conditions, interpretations or understandings that were inconsistent with the Senate’s action, would be troublesome.

The ABM Treaty

The ABM treaty will, of course, be submitted to the Senate for its advice and consent by a 2/3 vote. The issue is whether the House of Representatives should be asked to consider the Treaty as well.

Such a request would be unique. It would enhance the House’s role. On the other hand, it would be a challenge to the Senate’s constitutional role with respect to treaties and would probably lead to considerable friction with Senators who jealously protect that body’s prerogatives.

The President’s request to the House would presumably expound on the House’s interest in this important agreement. Further, as discussed with the Interim Agreement, the President could either: (a) simply ask that the House enact a non-binding resolution expressing a favorable view of the agreements; or (b) indicate that the U.S. would not ratify the treaty without the House’s approval. The latter case would obviously create the most problems with the Senate.

Our Recommendation

We would recommend that the Interim Agreement be presented to Congress as an executive agreement requiring the majority vote of both Houses. This is consistent with earlier indications by the Administration, will maximize the role of the House of Representatives, and (for the reasons discussed earlier) should not unduly disturb the Senate.

We would further recommend that the ABM Treaty be sent to the Senate only and not to the House. Since the House is being given a major role with the Interim Agreement, there is no reason to take the unique step on the ABM treaty of obtaining House approval.

• —If the President also desires to get the House involved in the ABM Treaty, then he needs to decide whether he will announce that the U.S. will not ratify the treaty unless the House approves. We would recommend that the House involvement, if felt necessary, be kept to requesting simple resolution which is not binding on the President. That unique step alone should satisfy the House and any further steps would constitute a clear challenge to the Senate’s treaty powers—an unnecessary challenge which would create trouble.

Before taking this issue to the President, you might want to solicit the views of Clark MacGregor.

Recommendation

1. Interim Agreement: That it be sent to the Congress as an executive agreement requiring a joint resolution to be passed by a simple majority vote by each House.

Approve.²

Disapprove.

(a) 2/3 Senate vote; non-binding resolution by House

(b) 2/3 Senate vote; resolution by House required before ratification.

2. ABM Treaty: That it be sent only to the Senate.

Approved.³

Disapproved.

(a) Also non-binding resolution by House.

(b) Also a resolution by House required before ratification.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 316, Subject Files, Congressional, Vol. 5. Top Secret. A copy was sent to John Lehman. A handwritten notation on the first page of the memorandum reads: “Hold till after trip.” Another handwritten notation on the same page reads: “5/20–HAKTO #6 wired HAK approval & said no action needed now.”
2. Kissinger initialed his approval of this option.
3. Kissinger initialed his approval of this option.