U.S. INVOLVEMENT IN VIETNAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP66B00403R000200160027-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 16, 2016
• Document Release Date: December 29, 2004
• Sequence Number: 27
• Publication Date: August 17, 1964
• Content Type: OPEN

1964
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CONGRESSIONAL RECORD - SENATE 19197
Mr. DOUGLAS. I also ask unanimous
.consent that there may appear in the
RECORD at the conclusion of the Sena-
tor's remarks an article on this subject,
written by Mr. Anthony Lewis, which
discusses primarily the constitutional is-
sue, and which appeared in the New York
Times, of August 16, 1964.
The PRESIDING OFFICER. Without
objection, it is so ordered.
(See exhibit 2.)
Mr. MORSE. Mr. President, I appre-
ciate very much the kind words of the,
Senator from Illinois. I thank him for
his leadership in opposition to the Dirk-
sen amendment. He knows the very high
regard in which I hold him as a legislator
and the deep affection I have for him as
a friend.
Once again he has been willing to row
against the current, in seeking to stop
what I am satisfied would prove to be a
horrendous legislative mistake on the
part of the Senate if it should adopt
the Dirksen amendment. I am delighted
that he and Senator CLARK, Senator
PROXMIRE, Senator HART, and other Sen-
ators seek to have this question post-
poned for committee meetings gDme
nuary. ,`~i1
U.S. INVOLVEMENT IN VI NAM
a
J
Mr. MORSE. Mr. President, I ask
unanimous consent that there be pub-
lished in the CONGRESSIONAL RECORD a
letter to the editor which appeared in the
Washington Post of recent date. Let the
RECORD show that the writer of the let-
ter to the editor of the Washington Eve-
ning Star is Mark W. Cornelis. It deals
with the Vietnam situation.
There being no objection, the letter
was ordered to be printed in the RECORD,
as follows:
RESPONSE ON VIETNAM
To those who have taken the time and
effort to inform themselves on the back-
ground of U.S. Involvement in Vietnam and
the alternatives which were open to us to
resolve the situation, the military escalation
directed by President Johnson comes as an
appalling shock.
With only Senators MORSE and GRUENING
voicing opposition to our policy, at this
writing, it_ occurred to me to inquire at their
respective offices as to the response being
registered by their constituents, via letter
and telegram, to their dissenting, position. I
was informed that Senator MORSE had re-
ceived 200 telegrams by 11 a.m. on the morn-
ing of August 6, and that all but one or two
congratulated him on his stand, taken the
previous afternoon, condemning the actions
in Vietnam. Senator GRUENING'S office re-
ported on the same morning that of several
thousand letters received during the past
few weeks on Vietnam the percentage was
between 400 and 500 to 1 in support of the
Senator.
It may be that the constituents of Senators
GRUENING and MORSE are better informed
than most of the American public, but a poll
of the general electorate in this country
might well reveal, on the basis of the above
statistics, that our war in Vietnam is not
only stupid and unjust, but lacks the sup-
port of the average American citizen.
MARK W. CORNELIS.
WASHINGTON.
Mr. MORSE. In yesterday's Washing-
ton Post Mr. Jack Anderson wrote an
article on the Tonkin Gulf snafu dealing
with the fact that the captain of the
Maddox did not know that the South
Vietnamese were raiding the coast of
North Vietnam.
I shall ask later to have the entire
article published in the RECORD, but first
I should like to make a few comments
on it.
The research of Mr. Jack Anderson,
whether he fully realizes it or not, has
borne out completely the position which
the senior Senator from Oregon took at
the time of the speech in opposition to
the South Vietnam resolution and at the
time of his protesting the provocative ac-
tivity of the United States in not only
Tonkin Bay but in southeast Asia at the
time of the attacks upon the Maddox
in Tonkin Bay.
The RECORD will show that I said at
the time that the briefings indicated that
the captain of the Maddox was not aware
of the bombing of the two small North
Vietnam islands by South Vietnam naval
ships. . The RECORD will show that I
pointed out that these naval ships were
supplied by the United States as "a part
of the American military aid, in com-
plete violation of the Geneva accords.
Many proponents and apologists of
the administration's action in South
Vietnam did not like to face the ugly
fact that we have violated the Geneva
accords for almost 10 years. The state-
ment of that fact has always met with
hush-hush, and has always met with a
coverup. We do not help the cause of
peace by trying to cover up our wrong-
doing. Of course, Red China and North
Vietnam and the Pathet Lao in Laos
have been violating the Geneva accords.
But I never thought I would live so long
as to hear the apologists for this admin-
istration seek to justify outlawry on the
part of the United States because Red
China, North Vietnam, and the Pathet
Lao In Laos are also outlaws.
The supplying of such arms and naval
ships to the South Vietnamese was it-
self a violation of the Geneva accords.
It is an old story that two wrongs can
never make a right. What I pointed out
at the time of that debate, I reassert
now. It is verified again, by the An-
derson article. Before I am through, it
will be verified by an article in the Man-
chester Guardian, as it has been veri-
fied by writer after writer since the
bombing of the coast of North Vietnam.
It is true that the captain of the Mad-
dox did not know of the bombing of the
two South Vietnam Islands. But of
course he was operating under con-
stant, complete, 24-hour-per-day radio
communication and electronic communi-
cation with the American officials in Sai-
gon and in Washington. They knew
about it. Let us get this fact before the
American people once again. Their
American officials, who have been. aiding
and abetting our dictator puppet in
South Vietnam, knew in advance of the
escalating of the war into North Vietnam
by the bombing by South Vietnamese
naval ships of the two North Vietnam
islands. We aided and abetted; we are
implicated, and we have helped to pro-
voke an act of outlawry against those two
Vietnamese Islands. I said so at the
time, and every verification since bears
out the soundness and accuracy of the
report of the Senator from Oregon.
McNamara finally had his way. This
has been McNamara's war from the be-
ginning, and still is. He is still calling
the tune and the shots.
As I said the other day, as we now
remember to the discredit of the United
States, the slogan "Remember the .
Maine," grew out of an unfortunate inci-
dent that threw the United States into
a war with Spain, when the United States
had little cause to go to war with Spain,
so I am satisfied that historians of the
future in regard to this dark page in
American history will record the slogan,
"Remember McNamara." In history,
McNamara will have to assume the chief
blame for the unconscionable and inex-
cusable action of the United States in
joining with the South Vietnamese in
escalating the war into North Vietnam.
American. officials knew where the
Maddox was. There had been a bombing
of the North Vietnamese islands, carried
out by that shameful military dictator
puppet In South Vietnam-General.
Khanh. American officials knew where
the Maddox was. She was entirely too
close to those islands not to have pro-
duced the result that her presence as a
provocateur produced.
I said days ago that the United States
was a provocateur in connection with
the bombing of the North Vietnamese
islands. I repeat that statement today.
The hands of the United states are
bloody because of our provoking action
by escalating the war in North Vietnam.
American leaders have protested that
they have been against escalating that
war; but what their lips have said is
quite different from what their hands
have done. The United States has par-
ticipated in the handiwork of escalating
that war into North Vietnam.
The presence of the Maddox in Tonkin
Gulf waters, even though they were in-
ternational waters, was perfectly proper.
National waters extend only 3 miles.
Nevertheless, the fact is that the Maddox
was allowed by American military and
diplomatic leaders in Saigon to be in
Tonkin Gulf so close to the mainland of
North Vietnam that no one should have
been surprised that the North Vietna-
mese looked upon the action as provo-
cation-and they obviously did.
The evidence is also clear that when
the PT boats of North Vietnam started
out to the vicinity and location of the
Maddox, the Maddox took to sea and
was not overtaken by the PT boats until
she was some 30 miles out. There is
a dispute as to how far out she was, but
I say that 75 miles would have been too
close. The Maddox was satisfied from
intelligence reports that had been ob-
tained that the PT boats with their tor-
pedos were after her. She had a per-
fect right to fire when attacked. I
have always said that. Also, at the time
of the second attack, she had the right
to sink the boats. But the United States
had no right under international law to
commit war against the mainland of
North Vietnam, for that was an act of
aggression. That act was not necessary
to protect the Maddox qr any, other
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CONGRESSIONAL RECORD - SENATE
August 17
American ship on the high seas. We
had North Vietnam dead to rights.
North Vietnam was in clear violation
of international law. But if we wanted
to commit an act of war, we had the duty
to declare war. That the President of
the United States has not proposed to
do, and obviously does not intend to do.
Instead, we as a Congress have given
him the right to make war without de-
claring war. History will not record
that act to our credit either. We now
begin to see that in the course of time
this illegal act on the part of the United
States will come home to roost.
In the course of his article, Mr. An-
derson says:
3. The Maddox intercepted Communist
messages, and therefore had a 2-hour warn-
ing that the three North Vietnamese PT
boats attacked.
Pieced together from naval intelligence re-
ports, here is the inside story of what hap-
pened:
On August 1, the South Vietnamese Navy
landed a raiding party on the Island Hon Me
about 10 miles off- the coast of North Viet-
nam. American advisers in Saigon were
given advance notice of the attack but neg-
lected to inform the U.S. 7th Fleet, which
polices these waters.
Mr. President, that was where we
should have stopped Khanh That was
where we should have served notice that
any escalating of that war into North
Vietnam would mean the end of Amer-
ican support. That was where McNa-
mara pulled his "sleeper" on the
American people. That was where the
Secretary of Defense failed the American
people and, in my judgment, failed the
American President. In my judgment,
it was at that point that McNamara owed
it to the world to do what he could to
stop escalating the war into North Viet-
nam, for this was a clear, formal attack
on the part of South Vietnam upon
North Vietnam, obviously with the bless-
ing of the American command in Saigon.
I continue to read from Mr. Ander-
son's article:
The destroyer Maddox, meanwhile, had en-
tered Tonkin Gulf on a routine elint
mission. This is the abbreviation for "elec-
tronic intelligence" and means that the
Maddox carried supersensitive electronic
gear which could scout the North Vietnamese
coast from outside the International
boundary.
The Maddox was steaming 13 miles off the
North Vietnamese shore, which is 1 mile
beyond the 12-mile limit which Herbert
Hoover established as the American off-shore
limit during rum-running prohibition days.
Actually, we have considered 3 miles the
International boundary, but the Maddox was
playing it safe. She was 13 miles out while
sniffing Communist radar stations along the
coast.
Very casually, the Maddox sailed past Hon
Me Island, unaware that it had been
hit by dynamite-carrying South Vietnamese
commandos.
The destroyer was about 10 miles away
from the island. But its electronic equip-
ment easily spotted a concentration of North
Vietnamese junks and PT boats scurrying
around Hon Me like ants whose ant hill has
just been stepped on. The Maddox crew
ignored the flurry until the radio room in-
tercepted an order from the Communist
Navy for three torpedo boats to attack.
The Maddox skipper, Commdr. Herbert
Ogler, sounded general quarters. For 2
hours, the crew waited at their battle stations
while they tracked the approaching Soviet-
made PT boats on the destroyer's radar
screen.
Commander Ogler kept the destroyer's
stern turned toward the approaching boats
in order to present as slim a target as pos-
sible for the deadly torpedos. When the
boats came within range, the Maddox fired
three warning shots, then banged away at
the speedy little hornets as they continued
to bore in.
The Maddox had a clear right and
duty to do that. This was an exercise of
American rights in self-defense, when
the American flag was being attacked on
the high seas:
Ogler easily maneuvered out of the path
of the launched torpedos, sank one boat
with a direct hit.
A careful reading of the intelligence re-
ports convinces diplomats and naval au-
thorities that the North Vietnamese asso-
ciated the destroyer Maddox with the earlier
commando attack on Hon Me.
They believe the PT boats were sent to sink
the destroyer In retaliation.
Does anyone really believe that if the
tables had been reversed and Castro had
attacked Key West, with Russian sub-
marines 60 miles off the coast of Key
West, we would not have attacked them
as provocateurs? Of course, we would
have. We would have chosen to do it
that way, to get them out of our parts.
It is interesting how the flag wavers in
this country will wave the flag into
tatters when the tables are turned. We
never should have had the Maddox where
she was when this act of war and aggres-
sion was committed by the South Vietna-
mese with boats we had supplied them
on the islands belonging to the North
Vietnamese.
Mr. Anderson points out further:
President Johnson ordered no retaliation
for the first attack on the Maddox. It was
not until the next day, when both the Mad-
dox and the U.S.S. C. Turner Joy were fired
upon, that the President ordered the retalia-
tory bombing of PT boat concentrations in
North Vietnam.
And when he did, he made a horren-
dous and historical mistake.
I do not intend to defend the President
committing an act of aggression upon the
North Vietnamese mainland because
there had been an attack on American
destroyers. To the contrary, the Presi-
dent of the United States should have
taken our case immediately, under our
rights under international law, to the
United Nations and put these Commu-
nists where they belong; namely, on the
spot for violating international law. Of
course, weshould have had to answer for
our provocateur conduct in Tonkin Bay,
and I wonder whether that is not one of
the reasons why we are not so enthusi-
astic about having the rules of law and
reason applied to our shocking warmak-
ing policies in southeast Asia.
Mr. President, I ask unanimous con-
sent that three interesting articles pub-
lished in the Manchester -Guardian of
August 13, 1964, one entitled "What Hap-
pened in the Gulf of Tonkin?" another
written by Wayland Young, and entitled
"Debt of Blood"; and another article en-
titled "A Briefing on Vietnam," be
printed in the RECORD.
There being no objection, the articles
were ordered to be printed in the REcoRD,
as follows:
WHAT HAPPENED IN THE Gtmr OF TONKIN?
A new account of last week's events in the
Gulf of Tonkin Is now emerging in Wash-
ington, and it makes a good deal more sense
than the original version. According to,
that, as it was put in statements by Presi-
dent Johnson, W. McNamara, and others,
the North Vietnamese Government delib-
erately challenged the 7th Fleet on two occa-
sions by attacking its ships with torpedoes.
No one could explain what death wish
prompted it to so suicidal a couple of ges-
tures. Its interests, after all, were being
served very nicely by the continuous Viet-
cong successes in South Vietnam, and the
Saigon government's increasing weakness;
why should its ends be forwarded by an ex-
tension of the war-into territory in which
it was most vulnerable? General Khanh
might want that (indeed he says so, fre-
quently); some U.S. advisers are believed to
want it, although not, one has assumed,
those controlling policy; but surely not
President Ho Chi Minh?
Western commentators made many In-
genious attempts to solve this enigma, but
the very tortuousness of their answers sug-
gested that something was, wrong with the
question. To explain the incredible, they
sometimes had- recourse to the still more in-
credible, and so we were told, for instance,
that the North Vietnamese, like General
Khanh in reverse, might be preparing to pour
south across the 17th parallel, or that the
Chinese for some incrutable reason, might
have in mind a world crisis on Korean lines.
Now, however, we are told (still unoffi-
cially) that it was all a series of mistakes by
North Vietnamese naval officers. The North
Vietnamese Islands of Hon Me and Hon Ngu
had indeed been attacked from the sea, as
Hanoi had alleged, before the crisis blew up;
this is now admitted in Washington. The
attackers were South Vietnamese ships, not
the 7th Fleet, but that distinction may not
seem so significant in Hanoi as in Saigon,
and when at that point the U.S. destroyer
Maddox sailed into the Gulf of Tonkin (ap-
parently after an absence), the torpedo boat
commander jumped to the wrong conclu-
sions. The rest of the story, it is now sug-
gested, was a mixture of misapprehensions
on both sides, of muddles, and of decisions
taken on the spur of the moment. This new
account does not explain everything, but as
a working hypothesis it is a great improve-
ment on the old one.
Then what has become of the message
that the U.S. airstrike was intended to
convey? Well, the North Vietnamese Gov-
ernment has been taught what it can be
presumed to have known already: that if
you take on the 7th Fleet you are likely
to get hurt. But the 23 torpedo boats put
out of action were not the main source of
American anxieties in Vietnam, and the real
test of the theory behind the airstrike will
be its effect on the guerrilla campaign in the
south. If that now ceases, then those Amer-
icans who advocate a strike north will have
gone far toward proving their point; if it
carries on entirely undisturbed by the loss of
northern torpedo boats, then other people's
analysis of the war (President de Gaulle's,
for instance) will look the more convincing.
That need not mean, however, that the
U.S. airstrike was a wholly wasted effort.
If It makes negotiations easier for the U.S.
administration to embark on, then it will
indeed have furthered American national
interests.
DEBT OF BLOOD
(By Wayland Young)
If the American bombing of the North Vi-
etnamese bases was what it has been pro-
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1964 CONGRESSIONAL REC
claimed to be, simply condign retaliation for "At 3:08 p.m. Maddox reported she was be-
an apparently pointless attack, then there is ing attacked by the three PT craft. She
little cause to rejoice or even approve. Only opened fire with her 5-inch battery after
the Soviet Union stands to gain from worsen- three warning shots failed to slow down the
ing of relations between China and the attackers.
United States, or from an escalation in the "At 3:08 p.m. the PT's continued their clos-
sea war. If, on the other hand, it was part ing maneuvers and two of the PT's closed to
of a careful plan to bring on a negotiated 5,000 yards, each firing one torpedo."
settlement, then, though it is obviously ex- It is not clear who began it.
tremely risky, it may have good results in the What had the junks been? North Vietna-
end. mese, taking supplies south? Or some of the
First let us look at the PR picture put out 555 South Vietnamese junks built and armed
by the U.S. administration for friends at partly with American funds? The North
home and abroad. The North Vietnamese are Vietnamese say that on the previous Thurs-
bad, because they are Communists, the South day someone had been bombarding their
Vietnamese are good because they are anti- islands of Hon Me and Hon Gnu. The Chi-
Communists and are, therefore, America's nese say it was American ships, but the
friends and allies. But they are weak. So North Vietnamese say It was South Vietnd-
America, which is strong, must help them mese ships. Was it some of the 555? If so,
fight the guerrillas who are operating on did the North Vietnamese, as it has been
their otherwise peaceful territory with North suggested in Washington, think the Ameri-
Vietnamese help. can destroyer was covering that action? And
One night out of the blue, North Viet- if so, were they right or were they wrong?
namese PT boats attack an American de- Some North Vietnamese. PT boats were
stroyer in the 'Gulf of Tonkin. This sunk and damaged; according to some ac-
"aggression on the 'high seas against the counts the American ship suffered no dam-
United States of America," in President John age, according to, others one searchlight was
son's words, is a warlike act, although a small put out. There is no doubt who won the
one, and America must, therefore, destroy battle.
the North Vietnamese PT boats in their bar- The second engagement was, according to
born to stop it happening again. This will American accounts, another victory for them;
show the "baddies" that it is no good taking according to Chinese and North Vietnamese
on "goodies" when they are stronger than it never happened at all. Again, Mr. McNa-
you are. mara's statement is obscure about who actu-
The real situation is more complicated. ally fired what first. But with lightning
America is slightly on the wrong foot even speed and precision, even before the prior
juridically, because neither she nor South warning and ultimatum could have been
Vietnam signed the Geneva agreement of properly received, American carrier-borne air-
1954 which created North and South Vietnam craft bombed four PT bases and an oil depot,
at-all, though all the other powers concerned destroying half the North Vietnamese PT
did.. The North Vietnamese are rather' more force.
on the wrong foot,, since they are breaking It was of course escalation and carried the
the agreement they did sign by helping the risks of that. An American bomber crashed
South Vietnamese guerrillas. 10 miles from Saigon during the recent build-
Beyond the 'Juridical fact lie the human up of forces and they could not even get to
ones. The Vietnamese are a Mahayana Bud- It because the Vietcong were in the way.
dhist people, like other East Asians closely One natural response to the bombing of the
linked to China by history. The Chinese ap- PT bases would be for the Vietcong to shell
pear to be minding their own business at not Saigon. Or of course the Chinese might
interfering in North Vietnam. The Ameri- walk in as they did in Korea, though this
cans are a white Christian people from the looks less likely. The Soviet Union are busy
other side of the earth who thus appear to washing their hands of southeast Asia, but
be behaving in a colonialist manner. The presumably might come back at the price of
American presence is incorporated in an army Chinese or North Vietnamese submission in
which is being built up from 16,000, under
Gen. Maxwell Taylor, who used to be Chief of the great split.
Staff. The situation fs distorted and Ian- Still the risk may have been worth taking
guage debased by calling these troops ad- if it was part of a careful plan, and there are
visers and their commander-In-chief ambag- indications that it may be. James Reston
sador. On the other hand, he has neither and Hanson Baldwin in the New York Times
the power nor the local responsibility of a harp on the suggestion that the North Viet-
true colonial governor. The American situa- namese are now supposed to negotiate an
tion is thankless, endless, and tragically ab- honorable settlement.
stitrd, If this is the idea it is good. The Americans
There was surely more than net the eye cannot beat the Vietcong on land; a fact it
in last week's naval engagements. What were may have taken the presence of as canny a
the Maddox and the-Turner Joy doing there soldier as Maxwell Taylor to discover. The
in the Gulf of Tonkin at all? It is entirely North Vietnamese even with Chinese help
surrounded'by the shores of China and North cannot beat America on the sea or' in the
Vietnam, The Tim ,;es said they were show- air. A settlement, as President de Gaulle has
ing the flag, not trailing their coats. In - been pointing out for some years, can only
order to judge, one would have to know how come by negotiation. The American bomb-
long it was since they last went up there. ing may have been to give themselves face
Perhaps they were trailing the flag, or show- to lose. The only trouble is that it may de-
ing their coats. Perhaps they were on a sig- prive the Communists of so much face that
nals intelligence mission or watching Ho Chi they will not negotiate until some further
Minh's shipping lanes. stupid "debt of blood"-it is the Chinese
In a press conference, Mr. McNamara said phrase-has been exacted. The European can
'that on the Sunday morning the Maddox only hope the Communists realize that face
picked up a fleet of junks on the radar and is as important to America as it is to them,
altered course, to_ avoid them. Five hours and that this year President Johnson's face
later the first engagement with the PT boats is supremely important to all of us.
took place. The North Vietnamese claim it Meanwhile, West European governments
happened in territorial waters. As to who should, as the French and German have and
fired first, here are Mr. McNamara's words: the British have not, remained rather cool
"At 2:40 p.m. August 2 Maddox reported toward the bombing as such, and to any re-
she was being approached by the high speed newed request for help from Cabot Lodge.
(estimated 45 to 60- knots) craft whose ap- This war is not like Korea; that was a United
parent intention was to conduct a torpedo Nations action even if by Russian default.
attack and that she intended to open fire South Vietnam is not even a member of
in self-defense, if necessary. SEATO. This war is a mistake, a freewheeling
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RD - SENATE
~...-' _4'199
legacy of former mistakes on all sides. There
are adults in Vietnam now whose villages
have been shot up by foreign planes all their
lives,-first J apanese, then French, then Ameri-
can.
If the Americans are really ready to nego-
tiate, perhaps the French can get the mes-
sage through. They still have links in Hanoi.
A BRIEFING ON VIETNAM
1. ORIGINS
Vietnam was grouped with Laos and Cam-
bodia in French Indochina, but in culture
and history it is quite different. They re-
ceived their civilization from India; Vietnam
from China. They follow the Theravada
Buddhism of south Asia; Vietnam the
Mahayana school, as in China, Korea, and
Japan. Its political and social traditions are
Confucianist, its language is related to Chi-
nese, and China ruled the country for about
1,000 years until it successfully revolted in
A.D. 939. Since then its preoccupation has
been to remain factually independent of
China, even though it paid tribute to the
emperors. It has, in fact, always reacted
strongly to foreign overlordship, as the
French were later to discover. There are also
minority peoples (mostly in the mountains)
who from time to time have reacted against
Vietnamese overlordship.
2. FRENCH RULE
The French conquered the country in ac-
tions during the sixties and seventies of the
last century; they ruled the south (Cochin-
China) as a colony and the center (Annam)
and north (Tongking) as protectorates. For
the rest of the century the country was
'often in revolt, and the colonial power's
effort to spread its language and culture,
spread also the European revolutionary tradi-
tions which France has notably embodied.
Ho Chi Minh became a Communist in France.
During the war of 1939-45 the Japanese
used the territory, but recognized Vichy
France's sovereignty until March 1945. With
the support of the Nationalist Chinese Gov-
ernment of Chiang Kai-shek various na-
tionalist groups (with the Communist com-
ponent as the most vigorous) combined to
form the League for the Independence of
Vietnam known as the Vietminh. Ho Chi
Minh was secretary. In revolt against the
Japanese and French, it received U.S. sup-
plies from the air. After the Japanese sur-
rendered it proclaimed independence as the
"Democratic Republic of Vietnam," with Ho
as President.
Negotiations between the republic and
the French Government broke down in 1946
and by 1949 the Vietminh was conducting
widespread and successful guerrilla warfare
against the French Army. In that year the
French recognized the independence of Viet-
nam within the French Union, with the for-
mer Bmperor Bao Dal as head of state. Bao
Dai's government, regarded as a puppet of
the French, never acquired popular support;
the Vietminh controlled more and more of
the countryside, and in. 1954 they won a de-
cisive victory at Dien Bien Phu.
3. THE GENEVA CONFERENCE
At the Berlin conference of February 1954,
the Foreign Ministers of the Soviet Union,
the United States, Britain, and France an-
nounced that a conference would be held in
Geneva to try to settle the Korean and the
Indochinese questions. The conference
opened in April, when the fall of Dien Bien
Phu was clearly imminent. Mr. Dulles, the
U.S. Secretary of State, believed that the
French should continue fighting, and was
ready to back them with American military
power, involving possibly the bombing of
China. The British Foreign Secretary (then
Sir Anthony Eden) made clear that such
action would not have British support, and
M. Mendes-France, who became Prime Minis-
ter of France during the conference, pledged
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his resignation If he had not reached an
honorable settlement within a month.
- The conference ended In July with agree-
ments on a ceasefire in the three countries of
Indochina and a declaration on measures to
restore pence. A military demarcation line
was drawn across Vietnam roughly along the
17th parallel. French forces were to be with-
drawn from the north of this line and Viet-
minh forces from the south. An election was
to be held throughout Vietnam within 2
years to reunite the country. No foreign
bases were to be established, and neither zone
was to join a military alliance. No troop
reinforcements from outside were allowed,
although replacements on a man-to-man
basis might take place. The carrying out of
this and other provisions was to be super-
vised by an Interational Control Commission
consisting of representatives of India, Canada,
and Poland.
The declaration was subscribed to by all
the governments represented at the confer-
ence except those of the United States and
South Vietnam-that is, France, Britain,
China, the Soviet Union, Laos, Cambodia,
and the Democratic Republic of Vietnam
(North Vietnam). The United States issued
a separate declaration promising to refrain
from the threat or use of force to disturb the
provision of the main declaration.
4. RESUMPTION 07 THE WAR
Although the declaration said that the de-
marcation line was not to be Interpreted as a
political boundary, that is In effect what it
became. It is, indeed, part of the Iron Cur-
tain separating the Communist and non-
Communist worlds. No national elections
wore held, and the two zones developed into
two states, each going its own way.
Who first broke the Geneva agreement is
disputed. The Communists say that the
south did not allow elections; the south says
that, In spite of the armistice provisions,
armed Vietminh bands (later to be nick-
named Vietcong, or "intruders") were left
behind in the south. At all events, guerrilla
fighting, which had grown less in the years
after Geneva, intensified in 1958 and has
grown bolder and more widespread ever since.
In December 1960, a "National Front for the
Liberation of South Vietnam" was set up to
lead the anti-Government fight; it is not
composed exclusively of Communists but Its
policy is to outward apearances identical with
that of the party in North Vietnam. The
Vietcong now controls more of the country-
side than the Government--certainly at night
-and many Americans admit that the chief
desire of most South Vietnamese is not to win
but to end the war.
U.S. intervention has increased to
keep pace with the Vietcong's successes,
and there are now said to be some 16,000 "ad-
visers" there. That the war nevertheless con-
tinues to go badly was last year ascribed to
the unpopularity of President Ngo Dinh Diem
and his family, and they were overthrown
by a military coup d'etat. But morale did
not noticeably improve either In the army or
in the population, and after a second coup,
which brought the present leader. General
Khanh, to power, it has declined still further,
and Vietcong operations are on an unprece-
dentedly large scale.
Mr. MORSE. Mr. President. if Sena-
tors will read these articles, they will
realize that people elsewhere in the world
share the point of view which I have tried
to warn the Senate about during the past
6 months.
The fact is, we cannot justify our
course of action in southeast Asia. The
fact is, we are an outlaw nation in south-
east Asia, violating time and time again
our international commitments.
Yet we talk about peace. Many people
state that their only objective Is peace:
their only objective Is not to expand the
war; their only objective is merely to
contain the threat to the peace In south-
east Asia. That spells the word "hypoc-
risy" in ray book.
If we seek peace, we should seek peace-
ful methods for obtaining it. If we seek
peace, we should stop exercising Ameri-
can unilateral military action bringing
many deaths throughout that area of the
world. Including death to an increasing
number of American boys.
Election or no election, we should make
our record now by going back to the con-
ference table, and stop saying, in effect,
that we are going to do what we wish to
do in southeast Asia and that the rest of
the world can like it or else.
We had better think of the future. We
are powerful enough. We have enough
destructive power in our nuclear weap-
onry to take that course of action. The
interesting thing Is that whenever in the
course of the history of mankind power-
ful nations have abused their power, they
have only prepared for their own down-
fan. We shall all be gone, but if the
United States builds on the foundations
of unilateral military action and inter-
national military outlawry, it will be lay-
ing the foundation for Its collapse in the
decades ahead. No nation can abuse its
power and take the position that it Is a
power unto itself, that it will call the
turns and the terms and survive. For
we shall continue to build up-as we are
building up now-the intense hatred of
the yellow races against the people of the
United States and eventually they will
put us out of Asia, as they put France out
of Asia.
Mr. President, I ask unanimous con-
sent to have printed in the REcoaD an
editorial published in the New York
Times entitled "Vietnamese Shuffle" of
August 17. 1964, as well as an article pub-
lished in today's New York Times under
the title of "Khanh Tightens Vietnam
Control, Takes Presidency."
'Mere being no objection, the editorial
and article were ordered to be printed in
the RECORD, as follows:
[From the New York Times, Aug. 17, 1964]
VnrrNAMESL SHurns
The situation in South Vietnam has been
getting worse. This is why new measures
are being taken to strengthen the internal
structure and to give the American forces
greater numbers and more authority. The
form which these changes are taking is not
so important as the fact that General Khanh
and General Taylor will have more power.
A world that has seen so many changes in
Vietnam while things remained the same
must be excused for mingling skepticism
with hope In greeting these latest shifts.
Americans have been In the paradoxical posi-
tion of keeping South Vietnam going, pro-
viding its military equipment, training its
armed forces and guaranteeing its protection
against the Communists, under the name of
"advisers." While this is largely, although
not entirely, a fiction. It cannot overtly be
changed because It would put the United
States In the position of a white, colonial
power intervening to run an Asian nation.
Internally, there Is the harsh reality of a
relatively weak and Insufficiently popular
government facing ah enemy-the Vietcong-
which is gradually getting stronger.
This is the difficult situation that is being
met by what seems to be a shuffling of the
same old deck of cards. The hope is that
the changes in the power structure will bring
greater efficiency and strength. These are
needed to prevent a collapse of the South
Vietnam Government. The problems can-
not be solved by smashing North Vietnam;
they must be solved in the southern zone.
The inability to find solutions for Viet-
nam, Laos, or Cambodia is bringing mount-
ing pressures for negotiation. The United
States has refused to yield to them because
of a fear that it would show weakness, be-
cause of the need there would be to bring
Communist China In on the talks, and be-
cause the subject of "neutralization" is for
the time being taboo. However, it can be
argued that the United States is now in a
position ? to talk from strength, especially
after Its display of power and determination
in the Gulf of Tonkin.
The present situation in southeast Asia is
a stalemate in which neither side can win
and neither will let the other win. This is
normally a good time to talk. The whole
region is going through motions and getting
nowhere.
[From the New York Times, Aug. 17, 1984)
KHANH TIGHTENS VIETNAM CON aoLs, Tsxzs
PRESIDENCY-GOVESNMENT Is REORGANIZED
AT CLOSED PARLEY-MINH OUT As CHIEY
or Srars-CoNSrrrrrrloar Is VoTm>-A WAIL
CAErNSr Is PLaNNErs-GazaTga ROLE PoR
UNITED STATES IN BATTLE DECISIONS HINTED
(By Peter Grose)
CAP SAINT-JACQUES. SOUTH VwrxAM, Au-
gust 18.-Maj. Gen. Nguyen ffiIanh assumed
the Presidency of South Vietnam today, oust-
ing Maj. Gen. Duong Van Minh, popularly
called Big Minh, as Chief of State.
Leaders of the nation's armed forces reas-
serted supreme authority in the country by
voting a new Constitution, patterned after
the U.S. presidential system, and then elect-
Ing General Khanh, the Premier, as Presi-
dent.
After his election, General Khanh received
newsmen and pledged adherence to demo-
cratic Ideals and practices, but he also re-
served. under the Constitution, near-dicta-
torial powers during a temporary state of
emergency.
In his remarks he left the way open for
greater participation by U.S. military rep-
resentatives In decisions on the pursuit of
the war against the Communist Insurgents.
THREE-DAY MELTING WAS szcarr
The Government reorganization was an-
nounced after a 8-day closed meeting of the
Military Revolutionary Council, the nation's
supreme governing body set up by officers
who overthrew the Government of Ngo Dinh
Diem last November 1.
General Khanh's seizure of power Janu-
ary 80 was accomplished by arresting the
council's leader and having himself elected
chairman of the body, a post he still retains
with the presidency.
General Khanh said his new government,
to be announced within a month, would be a
"war cabinet."
Because of changes in the government
structure after the coup d'etat in November,
the general becomes the first President of
South Vietnam since Ngo Dinh Diem.
His election took place by secret ballot in
a cramped and stuffy room In the palace of
the former Emperor. Rao Dai, where generals
and colonels had been meeting. The result
was 50 votes for General Khanh out of 58
members attending, 5 for the Defense Minis-
ter, Gen. Tran Thien Khiem, 1 for General
Minh, 1 for the II Army Corps commander,
Maj. Gen. Do Can Tri, and 1 blank ballot.
Immediately after the annoucement of the
result. General Khanh stood in his camou-
flage military fatigue uniform to take the
oath of office and pledge fidelity to the new
Constitution, which moments before had
been unanimously approved.
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CONGRESSIONAL RECORD - SENATE '19201
Then a military band in an adjoining room
played South Vietnams national anthem and
a 10-gun salute was fired from hilltops around
the old imperial palace overlooking the South
China Sea.
General Minh, President Khanh's predeces-
sor as chairman, did not attend the meeting.
He sent word that he was ill in Saigon, 40
miles northwest of this seaside resort.
General Khanh announced that only this
morning General Minh agreed to accept the
council's decision and step down as chief of
state, a post in which he played no significant
role in governing. According to General
Khanh, a general from the council left the
deliberations and informed General Minh of
the imminent action between 7:30 and 9 a.m.
today.
MINIS STILL POPTJLAR
Though inactive during the 6 months of
General Khanh's regime, the affable General
Minh retains considerable popularity and
prestige among the South Vietnamese people
and soldiers. The risk of dropping him was
apparently outweighed in eGneral Khanh's
thinking by the need for a tight government
team.
General Khanh said that, "as of the pres-
ent," General Minh remains as a general of
the South Vietnamese Army and an adviser
with unspecified duties to the Military Revo-
lutionary Council.
Senior American officials were kept in-
formed during the talks leading up to the
Government shuffle. Ambassador Maxwell D.
Taylor and other representatives conferred
with General Khanh and his aides here Fri-
day
General Khanh was asked about possible
changes in the relationship between the
South Vietnamese Government and the
American advisory mission, which has no
command role In the anti-Communist war
effort although the United States `is heavily
supporting it.
It has been reported that a plan is being
'Worked out for a kind of joint command
relationship at the top level, although not
at field-officer levels.
COOPERATION WITH UNITED STATES CITED
we do in very close cooperation with the
American authorities. All of the 'military
tasks that have to be done in connection with
them will have to 'depend on the require-
ments of the situation."
In earlier. statements he has been more
positive in stating that there would be no
sharing of command responsibilities.
The effect of the new constitution will be
to give General Khanh more direct and
sweeping control over the Government. By
clearly reiterating that supreme authority
dnd responsibility lie with the Military Rev-
olutionary Council, it leaves In doubt the
status of leading civilian figures, notably
Nguyen Ton Hoan. He was a Deputy Premier
under the old constitutional regime and has
tried to,build'his Dal Viet, or greater Viet-
nam, Into apotent governmental
force.
General Khanh rejected suggestions that
he was In effect becoming a military dictator.
The basis of the new Constitution Is a sepa-
ration of powers among three branches of
government-executive, legislative, and Judi-
ciary-as in the American Constitution.
POWERS ARE GRANTED
However, article 39 endows the President
with broad emergency powers. It states:
"In case the independence of the nation
and the integrity of the national territory
are seriously and urgently threatened, and in
case the functioning of the basic institu-
tions of the republican regime or the carrying
out of international commitments are seri-
ously hampered, the President of the Repub-
lic shall make all decisions and. take all ap-
propriate measures after consultation with
the president of the Provisional National As-
sembly and with the approval of the Military
Revolutionary Council."
The preamble of the Constitution makes
clear that the conditions described in the
article exist in the Vietcong insurgency.
Legislative powers under strict limitations
are conferred on a Provisional National As-
sembly until elections can be held in peace
and security. A third of the 150 members
are to be representatives of the armed forces,
a third representatives of province, munici-
pal, and Saigon city councils, and a third
appointed by the Military Revolutionary
Council from "the personalities within or
without the political groups." (The Presi-
dent acquires veto powers, but can be over-
ridden by a three-fourths majority of the
Assembly, United Press International re-
ported.)
The- judiciary is to be independent, with
judges appointed by the President.
Mr. MORSE. Mr. President, what a
shocking performance we are supporting
in South Vietnam. Our corrupt little
military puppet is having a so-called
reorganization of his regime over the
week end. We shall hear pontificial
statements from the leaders of govern-
ment in short order on what a great im-
provement it is, yet all it, is is a strength-
ening of the noose around the throats of
millions of South Vietnamese, bringing
them completely under the control of
this dictator. For, in his own pro-
nouncement, he points out that they will
get rid of those who are even neutral,
to say nothing of those who are opposed.
Do not forget that in this so-called reor-
ganization, all the civil liberties of the
rights of individuals are suspended. Yet
our Government continues to talk about
freedom in South Vietnam. There has
never been any freedom in South Viet-
nam since John Foster, Dulles got by
with convincing the South Vietnamese
that they should join the United States
in not signing the Geneva accords of
1954. That is when the blow for totali-
tarianism was struck in South Vietnam
by the Secretary of State of the United
States.
Ever since, we have made a black,
sordid, and sorry record in South Viet-
nam. In hyprocritical fashion, we have
talked about foreign aid in South Viet-
nam and supported dictatorship. We
have talked about the rights of individ-
uals in South Vietnam, and we have
supported the imposition upon them of a
military dictator puppet. It is a shame-
ful chapter in American history.
- I -know full well how unpleasant and
discordant my words are to many Amer-
icans who refuse to stop and study the
the facts about our sordid record; but
the fact is that the United States, in
keeping faith with its professings, should
get to the conference table-and fast.
We should recognize that the issue
should be taken to a 14-nation conference
table, or to the United Nations-I prefer
the latter-but I shall continue to raise
my voice in protest against American for-
eign policy in South Vietnam so long as
our foreign policy is characterized by
three main principles-first, hypocrisy;
second, support of dictatorship; and,
third, unilateral American military ac-
tion in clear violation of our obligations
under the Geneva accords of 1954, the
United Nations, and the spirit and in-
tent of 'the SEATO treaty.
Mr. President, I yield the floor.
EXHIBIT 1
[From the New York Times, Aug. 16, 19641
REAPPORTIONMENT
Senator DIRKSEN's rider to the foreign aid
bill, delaying reapportionment of State legis-
latures to allow time for a constitutional
amendment on the issue, has been criticized
on three grounds: that reapportionment
should not be delayed at all, that a rider is
a bad method to use and that Congress
should not interfere with Supreme Court
rulings. Following are comments from the
Nation :
The Atlanta Journal: "Senator DIRKSEN'S
motives are clear. In his some State, reap-
portionment of both houses of the legisla-
ture means not only urban control but
Democratic Party domination. * " * If such
an amendment were offered, Congress could
stipulate that two-thirds of the State legis-
latures, still under rural domination, pass
on what would amount to nothing less than
a life and death issue for them. There can
be little doubt as to what such bodies would
do. There Is no concern in the Dirksen pro-
posal for the one-man-one-vote principle.
The Senator hopes to serve his own ends and
those of some fellow politicians, not the peo-
ple."
The Plain Dealer, Cleveland: "Allowing
State legislatures to mark time from 2 to 4
years in applying the Court directive may be
debatable. The point is that congressional
action on reapportionment, especially im-
portant in Ohio, should stand on its own. It
should not be pinned to to the coattails of
foreign aid."
The Providence Journal: "The principal
objection to the Dirksen proposal Is that it
constitutes legislative infringement on the
judiciary. * * * Nowhere in the Constitu.
tion is there any passage that permits Con-
gress, by simple passing a bill, to postpone
the application of a decision by the court,
ds-the Dirksen rider would attempt to do.
[From the Philadelphia Inquirer, Aug. 15,
19641
CONGRESS AND THE COURT
At the crux of a stormy debate in both
Houses of Congress over the Issue of legisla-
tive reapportionment is the central question
of what procedure may be legitimately used
to nullify the effect of a Supreme Court
decision.
Ever since the Supreme Court handed
down its decision in June declaring it uncon-
stitutional for either house of a State legis-
lature to be apportioned on any basis other
than population, there have been numerous
proposals in Congress to circumvent or post-
pone the effect of this decision.
Nearly all the States are vitally concerned
by the ruling because most legislatures are
modeled, to some degree, after the Congress,
where the House of Representatives is ap-
portioned by population and the Senate on
a geographical basis, with each State having
two Senators regardless of population. This
is a fundamental part of the American sys-
tem of checks and balances in government,
designed to protect majority and minority
rights.
It seems to us that the House Rules Com-
mittee has gone completely overboard with
its proposal that Congress pass a bill in-
tended to nullify the Court's decision on re-
apportionment. Presumably, any such bill,
if enacted, would itself be declared uncon-
stitutional by the Supreme Court.
Southerners are pushing this bill because
they see in it a possible precedent for nulli-
fying court decisions on civil rights.
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If Congress had the power to overrule the
Supreme Court on questions of constitu-
tional interpretation, the Court would be re-
duced to a meaningless nonentity. Its de-
cisions would be subject to veto by a major-
ity of Congress. Thus Congress, rather than
the Court, would become the final arbiter on
constitutional questions.
The proper way to overcome a Supreme
Court decision on constitutional Interpre-
tation is to amend the Constitution, if this
be the will of Congress and the required
number of States.
It would be wise, in any event for the Fed-
eral courts to exercise discretion and avoid
a wholesale upset of State governments by
setting arbitrary reapportionment deadlines
that cannot reasonably be met. In many in-
stances, however, it is the legislatures them-
selves that are to blame for the reappor-
tionment mess because they have failed to
comply with the requirements of their own
State constitutions stipulating periodic reap-
portionment.
The separation of powers between Congress
and the Supreme Court, each a separate
branch of the Federal Government, is clearly
defined in the U.S. Constitution. Congress,
alone, cannot change this.
ExHIKT 2
[From the New York Times, Aug. 16, 19641
DECISION To REAPPORTION THE STATE LEOIs-
LATuRES STIES OPPOSITION
(By Anthony Lewis)
Conflict between the Supreme Court and
the political branches of government is
hardly a novelty in American history. It goes
all the way back to the time of John Mar-
shall, who wrote one of his brethren on the
bench a gloomy letter predicting a successful
effort by Congress to "prostrate the judi-
ciary."
Relations between Congress and the Court
have moved In great cycles. A strong court,
determined to put its imprint on society,
has inevitably aroused resentment among
legislators. Sometimes when wider attack,
the justices have moderated their course
until a new turn in the cycle.
The great recent example is the crisis of
the 1930's, when a strong-willed majority on
the Supreme Court tried to stand against
the New Deal. The result was Public loss
of confidence in the Court. then a direct
attack from President Franklin D. Roosevelt
In his plan to pack the bench with new
Justices. The Roosevelt plan failed, but the
Court majority did shift, abandoning the
effort to put constitutional limits on social
and economic legislation. The Supreme
Court faded from the headlines.
Then, slowly, new issues arose in the fer-
ment of constitutional litigation. The Court
became more and more deeply involved in
the protection of human liberty and equality.
New animosities were aroused, and the Court
was again in controversy.
At the American Bar Association meeting
here last week, a man who has been a close
Washington observer of the Supreme Court
for more than 20 years remarked soberly
that he had never sensed so much hostility
in Congress toward the nine men in their
marble palace across the lawn. The angry
feelings erupted during the week in the form
of urgent legislative moves to upset or limit
the historic decision of the Court last June,
that the districts in both houses of State
legislatures must be substantially equal in
population.
There is no secret about why the Supreme
Court is in controversy today: its decision
in a number of areas have disturbed power-
ful forces in the community. The results
reached by the Court in these areas have
outraged not only Members of Congress but
also significant sections of the public.
The decisions requiring equality of all
races before the law are the most obvious
example. Others are cases broadening the
freedom of books and movies from censor-
ship, enlarging procedural protections for
criminal suspects and prohibiting required
school prayers. All have aroused broadside
attacks. The Justices have been called soft
on criminals or obscenity or atheism. And
underneath these exaggerated words there is
real feeling on the part of some citizens.
The curious thing about the current furor
over the legislative apportionment decision
is that that case cannot really be shown to
have aroused large-scale opposition among
the public. The idea that all citizens should
be represented equally in the legislatures.
regardless of where they live, has hardly
shocked the man in the street.
REVOLT 07 POLITICIANS
This would seem to be strictly a politi-
cians' rebellion. It is easy to understand
why the politicians are upset. Their own
seats may be in jeopardy, and beyond that,
the stake in the reapportionment field is
nothing less than basic political power.
That is what explains the week's explosive
events in Congress, not any abstract philo-
sophical proposition.
"If we do nothing, this is the end of an
era in America." Those were the strong
words used by an ordinarily mild-mannered
man. Representative Wn.I.IAs M. McCuL-
Loca, Republican, of Ohio.
The era of which he spoke was the era of
rural dominance in the Nation's legislatures.
For decades, a vote has been worth much
more In country areas than in cities. There
has been similar rural bias in districts for
the National House of Representatives, dealt
with an another Supreme Court decision
last term. While not directly involved in
the current maneuvers, this decision was
doubtless in the minds last week of some
Representatives who fear It may cost them
their seats.
H. L. Mencken said in the 1920's that rural
overweighting in legislatures was too absurd
to last, but he has not been proved right
yet. A major reason Is that the bias, once
built In. is almost impossible to remove by
political means because the politicians will
not vote themselves out of office.
There are various ways that apportion-
ments have achieved their rural character.
Some go far back into history, as with Con-
necticut's town-based house. Many States
started with districts of equal population
In both houses, then shrewd politicians saw
the population trend and froze their con-
trol by apportioning on npnpopulatlon fac-
tors. Or often the rural bias came from sim-
ple failure to redistrict. In Tennessee, the
unequal districts which first brought the
Supreme Court into the problem In 1962,
the State constitution calls for population
equality but there had been no reapportion-
ment since 1901.
RECENT CONCESSION
The Supreme Court's critics now talk a
good deal about the desirability of having
one house based on population, the other
on different factors. But that Is a latter-
day concession under pressure from the
Court. Until the justices stepped in, the
controlling rural forces most often declined
to consider strict population representation
in either House.
In New York, for example, the complex
apportionment formula introduces nonpopu-
lation elements into the makeup of both
Houses. Some 35 percent of the State's pop-
ulation can thus elect a majority in the
assembly now, 42 percent in the Senate.
Mr. MCCULLOCH was certainly correct in
saying that an era would come to an end If
the Supreme Court's decision is enforced.
The idea that one part of the State can be
given more representation in proportion to
population than another would simply be
eliminated. That would mean sweeping
changes affecting a majority of the States.
New York's present districts, for example,
are probably a little better than the national
average in terms of numerical equality. In
Connecticut, by comparison, a mere 12 per-
cent of the people can elect a majority in
the lower house and 32 in the upper. The
percentages are 47 and 19 in New Jersey, 45
and 11 in California.
The political effects of change toward equal
districts would primarily be to increase the
power of the suburbs, for the old city cores
are declining along with the country in their
share of population. Since the suburbs are
traditionally Republican, it may seem puzz-
ling that Republicans are playing so large a
part in the drive to undo the Supreme Court
decision. When the case came down last
June, Representative WILLIAM E. MILLER-
then the party's chairman, now the Vice
Presidential candidate-hailed it as good for
the Republicans.
SUBTLE DIFFERENCE
The explanation seems to be that this is
a more subtle issue than party. Even if as
many Republicans were elected in an Ohio
Legislature districted by population, they
would be a different breed of Republicans.
They would be the new, smooth politicians
of the suburbs instead of the solid country
types familiar to Mr. MCCULLOCH, and they
would vote differently.
Something similar would be true in the
South, which is experiencing full-scale the
rise of, the middle class suburbs. But In
the South a shift to population equality
would more clearly help one party-the Re-
publicans-who are reaping in those southern
suburban votes. The Republican State
chairman in Virginia was one of the politi-
cians who opposed some of the congressional
moves last week.
Congress has before it now several pro-
posals aimed at the districting decision.
Some follow the straightforward route of a
constitutional amendment. Similar amend-
ments sponsored by Mr. MCCuLLocR and
Senate Minority Leader EVERETT MCKINLEY
DTRKSEN, of Illinois, would brave the general
effect of permitting one house of the State
legislatures to reflect factors other than pop-
ulation If the people of that State approved
the apportionment in a referendum.
Senator DIRSSEN offered last week a legisla-
tive measure that he said was designed to
allow time for consideration of the constitu-
tional amendment. As originally drafted, it
rather bluntly directed the courts to suspend
proceedings in all districting cases for from
2 to 4 years. But a compromise was then
worked out with Justice Department lawyers
and offered as a rider to the foreign lid bill.
CURB ON COURTS
The compromise would leave the courts
free to declare existing districts unconstitu-
tional. But action would then be stayed for
a year or two, as the Justice Department read
the language, to let a legislature try to re-
apportion Itself. If it did not act, the Dirk-
sen rider would affirm the power of the courts
to do the job.
A third and more drastic route is followed
in a bill proposed by Representative WIL-
LIAM M. Tura. Democrat, of Virginia. This
bill was sent to the floor by the House Rules
Committee last Thursday in a sudden and
dramatic move.
The Tuck bill states that the jurisdiction
of all Federal courts to hear districting cases
is entirely revoked. If valid, then, the effect
of the bill would be to leave intact the con-
stitutional standard of equality just declared
by the Supreme Court, but to prevent anyone
from enforcing it in Federal lawsuits. The
State courts would still be free to hear dis-
tricting cases, and so the result could be 50
different interpretations of the Constitution
on this subject.
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CONGRESSIONAL RECORD - SENATE 19203
Whether Congress has the constitutional
.-power to limit the functions of the courts in
these ways by simple statutes is a question
debated by scholars. Congress has done so
only once before, in*1868, when it cut off the
Supreme Courts jurisdiction to hear habeas
corpus appeals because it believed the Court
was about to declare Reconstruction laws
unconstitutional in a habeas corpus case
known as ex paste McCardle. The Court up-
held Congress action then.
The Tuck measure follows the McCardle
approach. Experts disagree sharply on
;whether it would hold up now.
For one thing the McCardle decision has
been much criticized as inconsistent with
the independence of the judicial process.
For another, some argue that the McCardle
statute, a removal of Supreme Court juris-
diction in a general class of cases, habeas
corpus appeals, was less a violation of the
separation of powers than would be a bar
to judicial enforcement of one particular
constitutional right.
A PRECEDENT
Foreclosing enforcement of the right to
equal representation would be a, precedent
for picking out any other constitutional
right that Congress did not like at the mo-
ment and excluding it from the courts.
On the other side, scholars point out that
article III of the Constitution' gives Congress
specific powers to regulate the appellate juris-
diction of the Supreme Court and to fix the
.jurisdiction of alllower Federal tribunals.
As to the latter, indeed, it is up to Congress
which, if any, to,-establish.
The Dirksen rider as redrafted rests on
a different constitutional basis-the section
of the 14th amendment saying that Congress
may enforce the amendment by legislation.
The theory is that since the Court has now
construed the amendment to -require equity
in districts,, Congress may exercise its pow-
er to lay down a rule of decision requiring
a reasonable delay for legislatures to act.
The argument on the other side is that the
measure violates the separation of powers.
POWER AND wlSOOM
Some suggested that the Justice Depart-
ment really considered the Dirksen rider un-
Constitutional but went along on the theory
it would fall in a court test. That is not
correct. High officials of the Department, at
least, believe that the' rider Is a valid in-
vocation of Congress powers under the 14th
amendment.
The wisdom of the Dirksen proposal is an-
other matter, and there the Justice Depart-
ment certainly does not agree with the Sen-
ator from, Illinois. the administration sup-
ports the upreme Court's apportionment de-
cision and would prefer to have no legislative
interference with it. The compromise was
made with Senator DIRxsEN for one blunt
reason: Officials were afraid that they would
get something worse if they did not take
this. The subsequent progress of the Tuck
bill suggested that they were right.
Should the Dirksen rider become law in
some form, the next question would be
whether a constitutional amendment would
be adopted during the period delay. That
might well depend on whether President
Johnson is reelected this fall and, if so,
whether he took a strong position against
any constitutional change. Thus far in the
current battle he has not spoken out.
The question posed by the present conflict
between Congress and Court is in any event
larger than the apportionment problem.
What is now at issue is the status of the
Supreme Court and the continuance un-
impaired of its historic power to enforce
the citizen's constitutional rights.
MEASURE SCORED
That the issue is the Court as an iristitu-
tion explains the willingness of 15 prominent
law deans and professors last week to at-
tack such proposed curbs on the apportion-
ment decision as the Tuck bill. A telegram
from them called the proposals drastic ones
that would dangerously threaten the in-
tegrity of our judicial process.
Some of the signers of that telegram had
themselves opposed the apportionment de-
cision. Some have sharply criticized the
present Court as too hasty, too confident of
its own wisdom, too ready to use bootstrap
history in its opinions. The professors can
be just as sharp as politicians in their crit-
icism. The difference is that they do not lose
their reverence for the institution of the
Court.
It is easy for sophisticated analysts to
the law to condemn sweeping, ill-considered
personal attacks on the Justices who so evi-
dently are trying honestly to tackle the
intolerably difficult problems put to them.
But, as Prof. Louis Jaffe of the Harvard
Law School has said, the Supreme Court
cannot expect only careful appraisals. It
must justify itself in the crude marketplace
of public opinion precisely because it deals
not only with esoteric lawyers' questions but
with great social issues.
What is about to be tested is whether the
recent line of Supreme Court decisions pro-
teeing individual liberty has offended public
opinion so much that the political forces
arrayed against the apportionment decision
will be able to limit or overcome it. On the
answer depends not only a good measure
of the States' future political makeup but
the great role of the Supreme Court in the
because of illness. I further announce
that the Senator from Nevada [Mr.
CANNON] and the Senator from Wyo-
ming [Mr. MCGEEI are necessarily
absent.
Mr. KUCHEL. I announce that the
Senator from Iowa [Mr. HICKENLOOPER]
is absent on official business as a dele-
gate to attend the meetings of the In-
ter parliamentary Union at Copenhagen,
Denmark.
The PRESIDING OFFICER. A
quorum is present.
AMENDMENT OF FOREIGN ASSIST-
ANCE ACT OF 1961
The Senate resumed the consideration
of the bill (H.R. 1380) to amend further
the Foreign Assistance Act of 1961, as
amended, and for other purposes.
Mr. JAVITS. Mr. President, on be-
half of myself and the Senator from
Minnesota [Mr. MCCARTHY], I send to
the desk a proposed substitute for the
amendment offered by the Senator from
Illinois [Mr. DIRKSEN] and ask that it be
printed under the rule.
The PRESIDING OFFICER. The
amendment will be received and printed,
and will lie on the table.
Mr. JAVITS. ' Mr. President, the
American system of government. It is hard amendment in the nature of a substitute
to imagine a more fascinating or more vital
struggle. (No. 1215), proposes a sense of Congress
-_-,.1..i: r n ~.
CALL OF THE ROLL
Mr. DOUGLAS. Mr. President, I sug-
gest the absence of a quorum, and ask
that the quorum be a live quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk called the roll, and
the following Senators answered to their
Aiken
Gore
Mundt
Allott
Gruening
Muskie
Anderson
Hart
Nelson
Bartlett
Hartke
Neuberger
Bayh
Hayden
Pastore
Beall
Holland
Pearson
Bennett
Hruska
Pell
Bible
Inouye
Prouty
Boggs
Jackson
Proxmire
Brewster
Javits
Randolph
Burdick
Johnston
Ribicofi
Byrd, Va.
Jordan, N.C.
Robertson
Byrd, W. Va.
Jordan, Idaho
Russell
Carlson
Keating
Salinger
Case
Kuchel
Saltonstall
Church
Lausche
Scott
Clark
Long, Mo.
Simpson
Cooper
Long, La.
Smathers
Cotton
Magnuson
Smith
Curtis
Mansfield
Sparkman
Dirksen
McCarthy
Stennis
Dodd
McClellan
Symington
Dominick
McGovern
Talmadge
Douglas
McIntyre
Thurmond
Eastland
McNamara
Tower
Edmondson
Mechem
Walters
Ellender
Metcalf
Williams, N.J.
Ervin
Miller
Williams, Del.
Fong
Monroney
Young, N. Dak.
Fulbright
Morse
Young, Ohio
Goldwater
Morton
Mr. MANSFIELD. I announce that
the Senator from Minnesota [Mr.
HUMPHREY], the Senator from Alabama
[Mr. HILL], the Senator from Utah [Mr.
Moss], and the Senator from Texas [Mr.
YARBOROUGH] are absent on 'official busi-
ness.
I also announce that the Senator from
Massachusetts. [Mr. KENNEDY] is absent
It is proposed to strike out all on and
after line 1, page 1, and insert in lieu
thereof the following:
SEc. 402. It is the sense of the Congress
that in any action or proceeding in any court
of the United States or before any justice or
judge of the United States in which there is
placed in question the validity of the compo-
sition of any house of the legislature of any
State or the apportionment of the member-
ship thereof, adequate time should be ac-
corded first, to such State to conform to the
requirements of the Constitution of the
United States relating to such composition
or apportionment consistently with its elec-
toral procedures and proceedings and with
its procedure and proceedings for the amend-
ment of the constitution of such State, and
second, for consideration by the States of
any proposed amendment to the Constitution
of the United States relating to the composi-
tion of the legislatures of the several States,
or to the apportionment of the membership
thereof, which shall have been duly sub-
mitted by the Congress to the States for
ratification.
Mr. President, I will, in consultation
with the Senator from Minnesota [Mr.
MCCARTHYI, call up the amendment in
the nature of a substitute at the appro-
priate time for consideration by the Sen-
ate.
The first proper question is, Why sub-
mit the amendment? Perhaps the corol-
lary to that question has already been
put in his usual picturesque way by my
leader, the Senator from Illinois [Mr.
DIRKSEN], who, I understand from the
press, called it meaningless.
There is a very real purpose in sub-
mitting the amendment. I believe it
would avoid a grave danger to the con-
stitutional establishment of our Gov-
ernment. posed by the so-called Dirksen
amendment, in which the Senator from
Montana [Mr. MANSFIELD] is joined. As
I shall develop in a few moments, the
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Senator from Montana [Mr. MANSFIELD]
joins in it on very different grounds from
those relied on by the Senator from Illi-
nois [Mr. DutxSEN]. I believe that the
sense-of-Congress resolution which the
Senator from Minnesota [Mr. Mc-
CARTHY] and I propose as a substitute is
entirely in accord with the constitutional
separation of powers as between the leg-
islative and judicial branches of the Fed-
eral Government. It would not jeopard-
ize our governmental establishment but
it would frankly meet what I recognize
to be a difficult issue. Most importantly,
it would have the desired effect without
the deleterious effects upon our system
of government which I see in the Dirksen
amendment.
It is also assumed, in saying that a
"sense" resolution is "meaningless," that
the Dirksen amendment would be mean-
ingful. In my judgment, the Dirksen
amendment would not have the operative
effect of law which is claimed for it, if
that is what is meant by "meaningful,"
but would purport to have such operative
effect without in fact having it. Hence
It would work an injury both to the pres-
tige of the Congress and, by an effort
which would miscarry or misfire, to the
relationships between the Congress and
the judiciary. Therefore, a frank state-
ment of what we have the power to do-
namely, to request the Court to stay its
hand for appropriate reasons-is the
most honest procedure In this situation.
There is a real situation of difficulty
which faces the Nation in the State leg-
islative reapportionment decision of the
U.S. Supreme Court, the so-called "one-
man-one-vote" decision. The problems
which are thereby created are twofold.
First is the problem of conformance
without unduly upsetting our whole so-
ciety.
I should like to say just a word on that
subject, because I believe it is important.
There has been altogether too much loose
talk about the possibility that the en-
actments of State legislatures which are
organized on bases different from the
one-man-one-vote concept, including
those which are subject to the mandate
of the Supreme Court in the six cases
which the Court has already decided are
unconstitutional, void, illegal, Invalid, or
in question.
One can speak as a lawyer only with
considered judgment, and I speak in that
way. I cannot conceive of the Supreme
Court upsetting theacts of a State leg-
islature which is organized in a way
which is not approved by one of these
decisions. I can understand the Court
making every effort to bring about the
organization of a legislature upon a prop-
er apportionment, but I consider it in-
conceivable that the Court would invali-
date the enactments of a legislature func-
tioning for decades, in the case of many
of them, and organized along lines of
which the Court disapproves.
That is a very important point, because
if we did not grant that point. we would
face a great national crisis and emergen-
cy; but no one, including the Supreme
Court, has given any indication that this
will be the fact.
If we do not face that danger-that
the acts of our State legislatures are in-
valid because they are not organized ac-
cording to the principles laid down in
those cases which have brought on the
present problem, then we are entitled to
proceed with such speed-or deliberate
speed, if we want to use the words of the
civil rights case-as to balance the pub-
lic interest and the stability of govern-
mental organisms with the requirement
of the Supreme Court that legislatures
be organized based upon lawful appor-
tionment.
The assumption on which I am pro-
ceeding would also include approval by
a legislature of a proposed amendment
to the U.S. Constitution. It should al-
ways be kept In mind that in every
State-if the U.S. Constitution is to be
amended to allow one house of the State
legislature to be organized on a basis
other than population-which is the ef-
fort to be made by the Senator from Il-
linois lMr. DuusssN] and other Senators
who are seeking time for such a consti-
tutional amendment to take effect-it
will be a question, in the final analysis,
for the people of that State to decide.
Once such a constitutional amendment Is
adopted, the people of each State will
have to decide whether they will avail
themselves of it or not.
The fact that a State legislature will
or will not approve a constitutional
amendment permitting the people of
each State to make their choice repre-
sents only one element of the consti-
tutional process-the people of each
State must decide on their State con-
stitutions. At this time no legislature
can organize one house of Its State leg-
islature on the basis of population and
the other house on some other basis
without running afoul of the 14th amend-
ment, under the Supreme Court deci-
sion. Something should be done, under
the Constitution, for the people to be able
to act in each State upon that matter
as they deem advisable.
The other point is that the lower Fed-
eral courts have proceeded to press the
matter of reapportionment in some cases
in a manner which can turn out to be
inimical to the very objective to be served.
Let us remember that these malappor-
tionments have been going on for dec-
ades, In many cases over a century, and
somehow or other we have managed to
survive. I am all for changing the sys-
tem and for giving proper representation
to our urban and suburban areas, which
have grown so much larger in population,
but I am not for tearing the country up
by the roots. Hence, the Senator from
Minnesota [Mr. McCAxruy] and I have
offered what we consider to be a fair
compromise.
The question is being pressed by some
of the lower courts too hard. For ex-
ample, in my State of New York the
State has been given, under Court order,
the direction to reapportion by April
1, 1965. In the interim the Court has or-
dered threeseparate elections in 2 years.
Our State legislators hold office for 2
years. The court in New York has held
that they shall hold. office for only 1
year, and that we shall have an election
this fall, one next fall, and one the fall
after that. It is rather difficult when a
Federal court tells a State that It must
.A'agust 17
curtail the constitutional term of its leg-
islators. That is pressing the matter a
little further than it should be pressed.
I hope the Supreme Court will hear me
and others like me who have been inde-
fatigable in its defense, when the Court
considers, as it will, whether these man-
dates are really what is Intended.
There are other States in which the
courts have held that there should be
weighted voting in the State legisla-
ture-that is, one senator or one assem-
blyman shall have one and a half votes,
or one and three-quarter votes, and an-
other shall have half a vote. Again, this
is completely inimical to the American
system. We have never operated that
way, and I do not see why the Court
should impose such a system on us.
There are other cases. In Vermont
the Court has told the legislature It must
meet and reapportion and then must ad-
journ, that the legislators must go home
and cannot transact any other business.
Mr. President, that is straining the judi-
cial authority a little bit further than it
should be strained.
However, that does not mean that we
in our turn must be guilty of the same
thing. We must express ourselves very
clearly, and the residual power, even if
we have It, must be very sparingly and
very judiciously exercised.
Mr. NELSON. Mr. President, will the
Senator yield for a question?
Mr. JAVITS. I yield.
Mr. NELSON. As I understand this
resolution it purports effectively to act
as a kind of interlocutory decree running
against the Supreme Court and postpon-
ing the effect of its decision. It that cor-
rect?
Mr. JAVITS. When the Senator says
"this resolution," does he mean the Dirk-
sen amendment?
Mr. NELSON. Yes.
Mr. JAVITS. Yes; it purports to do
that. I had intended to develop that
point a little later. Perhaps it is just as
well that I tell the Senator now what I
have in mind. It purports to do what
the Senator has Indicated. However, it
contains an escape hatch. The escape
hatch is "in the absence of highly un-
usual circumstances." If the Court finds
highly unusual circumstances, it may
deny the application for a stay.
In my judgment, had the Dirksen
amendment omitted that provision, it
would have run directly in the face of at
least two U.S. Supreme Court decisions,
which I shall cite in the course of my
speech this afternoon, and would have
been held to be unconstitutional. It
would therefore have been thrown out
by the Court. That is my considered
judgment as a lawyer.
The Justice Department felt that the
addition of the words, "in the absence of
highly unusual circumstances" meant
that a court could say, "We are not ab-
solutely bound, because of the language
highly unusual circumstances, and we
can therefore deny the stay."
I feel that the original Dirksen pro-
posal, which lacked such an escape
clause, would have been thrown out as
unconstitutional, or run the danger of
a serious confrontation between the
power of the Supreme Court and the
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