Foreign Relations of the United States, 1969–1976, Volume XVI, Soviet Union, August 1974–December 1976

33. Memorandum From the Counselor of the Department of State (Sonnenfeldt) to Secretary of State Kissinger¹

Washington, September 13, 1974.

SUBJECT

• Jackson’s Letter to the President on the Trade Bill

This, as you know, is the letter that Jackson wanted to send after his recent telephone conversation with the President in order to explain the advantages to the President of Jackson’s proposed waiver procedure. I had thought that after I told Perle that the President’s objections were on substantive policy grounds rather than merely mechanical, the letter would not be sent.² But evidently Jackson decided to proceed.

As regards the proposed legislative language, there are two significant changes from the earlier version. The first is the most substantive, stemming from my earlier negotiations with Perle: it makes clear that the first Presidential waiver will not require a detailed report on Soviet compliance. (I had repeatedly rejected Jackson’s position that even the first waiver had to be preceded by Soviet “good faith performance.”)

The second change involves making the proposed Congressional action a Joint Resolution rather than a Concurrent Resolution. This is for constitutional reasons. It does not affect the basic problem.

Jackson’s letter itself makes all the expected arguments in favor of his procedure—shared responsibility between President and Congress, additional leverage for Communist compliance because they have to satisfy not only the President but Congress as well. In the process of making his case, Jackson underplays the Congressional role which we have provided for in our version, i.e., a Congressional veto.

Jackson’s letter reflects his twin suspicions that (1) the President would not hold the Soviets to strict performance standards and (2) that the President would try to use unrelated issues (e.g., a crisis somewhere, or a promising negotiation concurrently in progress) to pressure Congress not to veto even if compliance is inadequate.

As regards the various safeguards written into his legislation to ensure that Congress will in fact act and that the waiver authority will not lapse by default, these are what we had previously seen. They seem to meet those problems as far as mechanics are concerned; just what the legal situation is if Congress nevertheless fails to act is hard to say.

In short, this letter leaves the situation as deadlocked as before, if not more so since Jackson is now on the written record with the arguments for his position.

Apart from the issue of what tactics to follow to break the deadlock or indeed whether to try at this time to break it, there is the question of whether to answer Jackson in writing. I can see nothing to be gained by doing so. If it were nevertheless desired to reply, the question is whether this should be largely in terms of justifying the President’s proposed waiver procedure, or largely in terms of rebutting Jackson’s arguments, or both. I would opt essentially for the former. Or there could be a rather brief acknowledgment noting the Senator’s language and arguments but stressing, with very brief reasons, why the President prefers his own.³

No reply for now

Draft possible reply rebutting Jackson

Draft possible reply arguing for our version

Draft possible reply doing both

Draft possible reply with brief acknowledgment

In terms of Dobrynin, you may want to bring him up to date and tell him we are standing firm on the veto procedure.

Attachment

Letter From Senator Henry M. Jackson to President Ford⁴

Washington, September 11, 1974.

Dear Mr. President:

I am enclosing a draft of legislative language⁵ which, together with the language passed by the House and contained in Title IV of the Trade Reform Act, should satisfy your concern that trade benefits granted to the Soviet Union (or other non-market economies) could, if justified, be extended beyond one year in a timely and expeditious manner and without fear of procedural impediments or delay. At the same time, the President could, of course, decide not to recommend an extension beyond one year; or he could terminate any benefits at any time.

Under this proposed formulation the President would be in a position to extend most-favored-nation treatment to the Soviet Union or other non-market economies by waiving subsections (a) and (b) of Title IV in cases where he determines and reports that “the exercise of such waiver will substantially promote the objectives” of free emigration as defined in Title IV. The assurances that have been conveyed in our draft exchange of correspondence constitute an agreed basis upon which to make and report that determination. According to the enclosed formulation, the President could propose annual extensions of the authority to waive subsections (a) and (b). Congressional action on any such Presidential request would proceed according to carefully drawn procedures which, I am confident you will agree, assure timely and expeditious action.

This formulation will enable a first waiver to be extended without a detailed report. Subsequent requests by the President to have the waiver authority extended for an additional year by joint resolution would have to be reported by the appropriate Congressional committee at least 30 days prior to the date of expiration of the previous one year waiver authority and would become the pending business of the house to which reported. Time for action on the floor would be limited to three days; and, in the event of differences between the houses, a conference report would have to be filed within six days and acted upon within three days after the filing. If for any reason there should be a delay, the President would be enabled to extend by Executive Order for up to 60 days the period of the then existing waiver authority.

In developing this proposed formulation, which effectively rules out legislative delay, we have sought to safeguard your interest in assuring that there would be no unintended interruption in the authority to continue trade benefits. At the same time I believe that the Congress, within which the effort to associate a free flow of people with a free flow of commercial goods originated, should continue to share responsibility for determining that its legislated purpose will be carried out.

The issue before us is this: should the authority to waive the provisions of the “Jackson amendment” continue indefinitely unless rescinded or should it expire after one year (and annually thereafter) unless renewed by safeguarded, affirmative Congressional action?

In my judgment it would be most unwise for the President alone, without further Congressional action, to assume the burden of deciding each year whether an extension of the waiver is merited. It would inevitably weave the issue of compliance with the humanitarian provisions of Title IV into the whole fabric of bilateral international relations covering a great variety of issues and concerns on which the Administration, unlike the Congress, is involved in ongoing negotiations. It would subject the Administration to great pressure to assess the implementation of the understanding on emigration in terms of unrelated issues.

In my judgment the incentives to live up to the agreement would be greatly enhanced by requiring affirmative Congressional action. At the same time, the temptation of a country to fall short in implementing the assurances would be significantly increased if the country in question had to convince only the Administration that it merited a continuation of trade benefits. The role of the Congress would be relegated to an essentially negative one. The requirement of affirmative action to renew the Presidential authority will strengthen the Administration’s hand in securing continuing compliance from the countries in question.

While I am confident that the enclosed formulation guarantees uninterrupted annual re-enactment in cases where the assurances are lived up to, I feel strongly that it is not in the national interest—and certainly not in the humanitarian interest we have sought to secure—to require the Congress, as its only option, to withdraw existing waiver authority from the President in the event of non-compliance. In terms of its impact on our foreign relations there is a great difference between the Congress failing to renew authority, on the one hand, and moving to withdraw it on the other. I hope you will agree that, in the event of non-compliance with the terms of our understanding, it would be far better for Congress to allow the authority to expire than to require that the Congress be forced to the divisive act of removing continuing authority.⁶

Sincerely yours,

Henry M. Jackson

1. Source: National Archives, RG 59, Lot File 81D286, Records of the Office of the Counselor, Box 8, Trade Bill, Sept–Dec 1974. Eyes Only. Sonnenfeldt forwarded this memorandum and the enclosed letter from Jackson to Ford, as well as the most recent draft correspondence, in a September 16 memorandum, to prepare Kissinger for his meeting two days later with Jackson, Javits, and Ribicoff. “Jackson has apparently told Max Fisher, who has told Garment,” Sonnenfeldt reported, “that the President’s main concern is with technical aspects of the Jackson draft and that the three Senators are willing at once to sit down with Administration representatives to improve the Jackson text so as to preclude (1) any lapse in the authority because of Congressional delays or failure to act, and (2) action by Congress that is not exclusively based on the criteria and considerations in your exchange of correspondence (i.e., extraneous issues of one kind or another).” (Ibid.) Sonnenfeldt also included the same attachments in a September 18 memorandum to prepare Kissinger for his meeting the next day with Gromyko. (Ibid.)
2. See Document 31.
3. Kissinger did not indicate any decision on the options.
4. No classification marking.
5. Enclosed but not printed.
6. During a meeting in the Oval Office on September 13, Ford and Kissinger discussed how to proceed on Soviet emigration and the Trade Bill: “Kissinger: The Jackson letter. It is in bad faith. The Soviet Union won’t buy it. I don’t even know if these could stick. President: In the House, one Congress is not bound by the previous Congress. Kissinger: This procedure means that every year we would go through this. Javits thinks it should be a regular veto by one House. President: He told me that. I wouldn’t buy that until we have fought for the other. Kissinger: We could get up a breakfast or just say it is unacceptable and see. President: I would want to know that Ribicoff and Javits are okay. Kissinger: Why don’t I call him and meet again before you meet with them. President: We’ve got to make sure about Javits and Ribicoff. Kissinger: They are afraid to stand up to him. The Jewish community looks okay. President: Can I get the precise language I want before the meeting.” (Ford Library, National Security Adviser, Memoranda of Conversations, 1973–1977, Box 5)