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July 20, 1973
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Approved For Release 2005/06/06 : CIA 5B00380R000700090010-9 nil Record "ILCU OLULVB of America PROCEEDINGS AND DEBATES OF THE 9 3d CONGRESS, FIRST SESSION WASHINGTON, FRIDAY, JULY 20, 1973 Senate The Senate met at 9 a.m. and was called to order by Hon. ROBERT C. BYRD, a Senator from the State of West Virginia. PRAYER The Chaplain, the Reverend Edward L. R. Elson, DD., offered the following prayer: Our Father God, whose Word teaches us to seek the kingdom of God for God's sake alone, and righteousness for right- eousness' sake alone, and has promised that all else shall be added, make the people of this land exemplars of this truth. May we be assured of Thy con- stant presence illuminating and guiding our work. Teach us to distinguish right from wrong and always to choose the right. When the way is uncertain, speak to our inmost being saying, "This is the way, walk ye in it." At this time of dedi- cation, give us grace to work as instru- ments of Thy purpose upon the Earth. We pray in the Redeemer's name. Amen. APPOINTMENT OF ACTING PRESI- DENT PRO TEMPORE The PRESIDING OFFICER. The clerk will please read a communication to the Senate from the President pro tempore (Mr. EASTLAND). The second assistant legislative clerk read the following letter: U.S. SENATE, PRESIDENT PRO TEMPORE, Washington, D.C., July 20, 1973. To the Senate: Being temporarily absent from the Senate on official duties, I appoint Hon. ROBERT C. BYRD, a Senator from the State of West Vir- ginia, to perform the duties of the Chair during my absence. JAMES O. EASTLAND, President pro tempore. Mr. ROBERT C. BYRD thereupon took the chair as Acting President pro tem- pore. THE JOURNAL Mr. MANSFIELD. Mr. President, I ask unanimous consent that the reading of the Journal of the proceedings of Thurs- day, July 19, 1973, be dispensed with. The ACTING PRESIDENT pro tem- pore. Without objection, it is so ordered. COMMITTEE MEETINGS DURING SENATE SESSION Mr. MANSFIELD. I ask unanimous consent that all committees may be au- thorized to meet during the session of the Senate today. The ACTING PRESIDENT pro tem- pore. Without objection, it is so ordered. PHONE CALLERS Mr. SCOTT of Pennsylvania. Mr. Pres- ident, with tongue firmly lodged in cheek, for fear that in this paranoiac town I may be taken seriously, I would suggest that, hereafter, all anonymous phone callers be required to register under the Lobbying Act. [Laughter.] 1,- POWERS A~ The PRESIDING OFFICER (Mr. NEL- soN). Under the previous order, the Senate will now resume the considera- tion of the unfinished business (S. 440), which the clerk will state. The legislative clerk read as follows: S. 440, to make rules governing the use of the Armed Forces of the United States in the absence of a declaration of war by Con- gress. The PRESIDING OFFICER. Who yields time? Mr. JAVITS. Mr. President, what is the parliamentary situation? Do I cor- rectly understand that the Eagleton amendment is pending? The PRESIDING OFFICER. The pending question is on agreeing to amendment No. 364 of the Senator from Missouri (Mr. EAGLETON). Mr. JAVITS. And what is the time on that, Mr. President? - The PRESIDING OFFICER. The time limitation on amendment No. 364 is 1 hour. Who yields time? Mr. EAGLETON. Mr. President, I call up my amendment No. 364 and would inquire, is it not the pending business? The PRESIDING OFFICER. It is the pending business. Mr. EAGLETON. I thank the Chair. Mr. President amendment No. 364 is a "housekeeping" type of amendment. In the drafting of S. 440, a typographical error was made on page 5, line 2. I would ask the Senator from New York (Mr. JAVITS), as the other prin- cipal sponsor of S. 440, if he has had a chance to read amendment No. 364 and does he not agree that this is a clerical mistake? Mr. JAVITS. Mr. President, I shall speak on my own time, if the Senator from Missouri is agreeable. Mr. EAGLETON. Yes. Mr. JAVITS. Mr. President, I yield myself such time as I may require. The Senator from Missouri is entirely correct. The error is almost self-evident. It occurred in the printing of the bill. It will be noted at the point where the amendment occurs, at the top of page 5, that the words "Armed Forces" should be changed, as the Senator from Missouri has suggested, to "military forces," to have it conform to the body, of the text. We appreciate having the error called to our attention, and in this form the amendment should be accepted. However, since we have time on the amendment, I should like to take a few minutes of that time, before yielding back whatever remains-and I shall not be long-in order to set in frame, as we have had an interrupted debate of this matter, the situation as I see it now. Let us turn to the primary amend- ments which will be made in respect of the war powers bill; Senator EAGLETON'S principal amendment relates to problems involving the CIA and the paramilitary forces. There will be an amendment by the distinguished chairman of the Commit- tee on Foreign Relations (Mr. FuL- BRIGHT), respecting deployment. There is a possibility of other amendments aside from these two including possibly a sub- stitute for the whole bill. There may be other amendments, of course, but those are the primary amendments which have been called to my attention. I have established this frame of refer- ence for this reason: The war powers bill was passed by the Senate a little more than a year ago by a very heavy vote, 68 to 16. Since that time the bill has been obviously extremely closely scrutinized by many persons having very sharp eyes and very sharp minds. In addition, the Committee on Foreign Relations took the precaution of having Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14160 Approved For CONRelease 2005/06/06 : GRESSIONAL RECORD SENATE 00700090010 July N0, V073 another hearing on the war powers bill before actually reporting it to the Ben-. ate this time. This very, very searchingscrutiny by commentators, columnists, foreign policy experts, Members of the House and Sen- ate, and academicians, both at home and abroad, have, in my judgment, been a great tribute to the durability of the bill. The fact is that the fundamental structure of the bill has withstood every assault and every scrutiny. This is criti- cally important because the bill is a his- toric piece of legislation. It represents an effort to define a situation which has not been defined since our Republic was founded. The need to define it now has become unavoidable. Events in the last two decades have convinced us that it must-be defined. Even when we face a situation like that, we hope that very critical problems will not arise which will make us come to a decision. But the issue of war or peace, the para- mount issue of not only our time but of all time, when we face the reality of any difficulty, when American casualties al- most exceed the imagination, compels us to come to this decision. Therefore, I think it should be a mat- ter of very important reassurance to Sen- ators that, notwithstanding the careful scrutiny over such a long period of time- most unusual for any bill-which this bill has received, it has stood the test and stood it well. So well that the other body, which started out a long way from the ideas contained in this bill, has gradually come to the same ideas, albeit in different form, with different methodology, with many deficiencies. But nonetheless the House has come to the same fundamental approach to this very profound problem as is embodied in the Senate war powers bill, as passed last year and as we are again considering it this year. Mr. President, referring now specifi- cally to what is in essence the coalition which produced this bill before the Sen- ate, that, itself, is testimony to the validity of this thesis, the searching in- quiry which has surrounded it and the strength it holds in being presented to the Senate. Senator STENNIS, the chairman of the Committee on Armed Services, generally considered very staunch in terms of American security-and quite properly so-in his general philosophy encom- passing almost any kind of enemy capa- bility which the United States has to face, joined in the original presentation of the bill and has been its constant and diligent supporter. He will, by a state- ment today which the manager of the bill, Senator MusKIE, will read, demon- strate his continuing fidelity not only to its concept but also to its language. It is something which really would be denigrated, so important, is it to our country, if I should say that I am grati- fied. I think millions of Americans and future generations will be gratified that the chairman of the Armed Services Committee has espoused the single ef- fort which is most likely to control what the Founding Fathers called the "dogs of war." Senator EAGLETON, though I do not happen to agree with him in his major amen ent today-that quite aside, be- cause, gain, it does not go to the heart of the bill-has been a masterful partner in the architecture which the bill repre- sents. #gain, he has given it a devotion and copstancy which I would not wish to denigrate by expressing mere personal appreciation; but It will be appreciated also, in my judgment, by millions of Americans and by generations not yet born, then we have accomplished this historic departure from the past. Also,' Mr. President, I should like to pay my tribute to Senator GOLDWATER, who emerged as probably the principal Senate' opponent of the bill, and to others-professors, distinguished men in other oallings-who appeared before us to take the bill apart. I believe in debate; I believe in cross- examination. I consider Senator GOLD- WATER one of the really great patriots of our country in terms of its security, and I have admired the fact that not just in words for Senate courtesy, but also in the depth of his feeling, he understood that al of us who advocated the bill- almost two-thirds of the Senate-a.,so had the deepest feeling for the security and the prosperity of our country and peace in the world, but for the survival of American values, beyond everything else, in the decades ahead. I also pay my tribute to the members of the (Committee on Foreign Relations. Senato FULBRIGHT, who has been a con- stant stupporter of the bill-though he differs with some of its details, as he will show by his amendments-has also been a'tower of strength to us. Without him, we never could have turned the bill out or loved it to where it is today. Simi- larly, tle majority leader and the minor- ity leac4er, who are members of the For- eign Relation Committee, have been absolutely invaluable aids in this respect. Mr. President, I hope Senator EAGLE- TON will forgive me for saying these things ;at the beginning instead of the end. These words are always reserved for the' end. If the Senator is agreeable, I will yield back the remainder of the time, and we can proceed to his amend- ment. Mr. EAGLETON. The Senator from South Dakota has an appointment and would like to speak for 10 minutes on the bill. I am going to yield him 10 minutes of my time, in order to accommodate his schedule, unless there is an objection. Mr. , AVITS. That is fine. Would the Senator like his amendment adopted first? Mr., EAGLETON. No. I will yield to the Senator from South Dakota time on the amendment. Mr. dAVITS. Mr. President, I note that the assistant majority leader, Senator ROBERT C. BYRD, is here, and I wish to pay my tribute to him, too, as a constant, in- defatigable cosponsor and supporter and to exp ess my appreciation for his im- portant help in respect to bringing this bill to a position it is in today. Mr. OBERT C. BYRD. I thank the Senator for his generous remarks. Mr. AGLETON. I yield 12 minutes to the Se ator from South Dakota, on the amendment. Mr. ABOUREZK. I thank the Senator from Missouri for yielding. Mr. President, for the ;Oast 25 years, this Nation has witnessed the dangers of allowing the President a virtually un- limited right to engage in war. The :mis- guided gambols in Cuba and theDon ni- can Republic, the unpopular agonies of Korea, the shameful struggle in Indo- china, stand as grim testament to the dangers of Executive prerogative in mat- ters of war and peace. All of us, there- fore, must applaud efforts to reassert the constitutional role of Congress, ani to limit the warmaking powers of the Presi- dent. The efforts which have been ex- pended by the Senate Foreign Relations Committee and individual Senators to achieve this goal have my strong respect and support. It is, therefore, with reluctance that I find it necessary to register my st: ong opposition to the provisions of the war powers bill, Senate bill 440. I do so in spite of the fact that I originally agreed to cosponsor this legislation. After care- ful consideration however, I am now of the belief that this bill will establi>h a dangerous standard which in fact ex- pands, rather than contracts President's warmaking powers. The war powers bill establishes a 30- day limit on "undeclared" wars, initiated without ocngressional approval. The President is empowered to enter into an undeclared war in three very different in- stances. He may "repel an armed attack upon the United States," a power en- visioned by the framers of our Conslitu- tion, and with which no one would quar- rel. The other two instances are of much more questionable prudence. The bill would empower the President to repel an armed attack upon Armed Forces of the United States located out- side of the continent. This provision would not be deplorable if the Senate exercised its constitutional role in for- eign policy and gave consideration and approval to all treaties and commitments made by the United States. This is not currently the case. The President claims the right to make commitments by Ex- ecutive agreements without the approval, and often without the knowledge of the Senate. He claims the right to place American troops wherever it pleases :aim. We now have some 2,000 bases or mili- tary detachments located in the far corners of this world. By giving the President the power to defend each of them, without congressional considera- tion of the location and wisdom of their placement, we are simply empowering Presidents to locate troops in such a manner as to provoke attacks to ju,>tify Presidential warmaking. This Nation is not ignorant of such practices. The Gulf of Tonkin Resolution resulted from an incident off the coast of North Viet:aam which may have been provoked, Indeed it may have been manfactured, in order to justify the bombing of North Vietnam. For Congress to grant the President the right to defend American forces it must first, as Raoul Berger, the noted consti- tutional historian has so wisely sugf est- ed, exercise its constitutional power to insure that such forces are not placed Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 JAly" 20" 1973Approved For sRE 6 i& 751?&19T00700090010-9 S14161 in provocative positions, or used in pro- Ing. We have witnessed an unconstitu- stitutional scheme is necessary, then let vocative exercises. tional assertion of power over questions us undertake to achieve it in the manner The war powers bill empowers the of war and peace by a succession of provided by the Constitution itself-by President to enter into war in order to Presidents. Now in the hope of limiting amendment with submission to the pub- fojrestall the "direct and imminent threat that assertion, I fear that we will now lic, and not by unilateral Executive of 'such an attack" on the United States pass legislation which authorizes much transgression. or,on American troops abroad. This pro- of it. Let me briefly explain. This bill, in essence, accepts the ad- vi.9ion could have been cited by this ad- We should not be misled by Secretary ministration position, legitimating Presi- ministration to justify the Cambodian Rogers and other executive spokesmen dential warmaking even as it seeks to intervention in 1970 and the Laos inter- who suggest that the President now has limit its use. Passage of this legislation veltion in 1971, both of which were pub- the constitutional authority to make will lend congressional authority to Ex- licly rationalized as necessary to forestall war. Article I, section 8, clause 11 of the ecutive war. It will confuse the public, attacks on American troops. It also could Constitution states that "The Congress embolden future Presidents, and worst be invoked to sanction a preemptive first shall have power to declare war." James of all, dilute the Constitution. With this strike with nuclear weapons, a capacity which this Nation has refused to re- nounce. In essence, it constitutes a blank check which will implicate Congress in whatever aggressive war-making a Presi- ident judges to be necessary. The dangers of this provision are manifested by our recent experiences in Indochina. Experiences which this bill originally sought to correct for the fu- ture, and which caused me to initially ap- plaud the effort to prevent a recurrence of these experiences. Let us look at Cam- bodia. After thousands of secret B-52 bombing missions for 3 or 4 years, the President, citing "secret" or "classified" reports notified the American people that it was necessary to invade the country to avoid an imminent threat of an attack on American forces in Vietnam. The at- tack enmeshed this Nation in the defense of a corrupt junta fighting against its own people. This is exactly what oc- cured in 1970. The only difference made by the war powers bill is that, in the fu- ture, a President will be able to tell the American public that he has explicit con- gressional authorization to engage in such an attack, authorization provided by section 3 of this bill. Finally, the war powers bill provides a 30-day limit on Presidential warmaking without con- gressional approval. Yet it includes a loophole so large, so forgetful of our re- cent tragic experience as to nullify that provision. Hostilities can continue without con- gressional approval beyond the 30-day limit if the President "determines and certifies to the Congress in writing that unavoidable military necessity respect- ing the safety of the Armed Forces" re- quires continued fighting to bring about "prompt disengagement." "Prompt dis- engagement" is exactly what we have witnessed, according to the President, for the past 5 years in Vietnam and Cam- bodia and Laos. "Prompt disengage- ment" which has included the dropping of more bombs than at any other time in our history. "Prompt disengagement" which has resulted in attacks against Cambodia and Laos, and the terror bombing of North Vietnam. With this clause the war -powers bill not only bill, Congress puts its imprimatur on the future history of Executive war, and ac- cepts unilateral Executive usurpation as a proper mode of amending the Con- stitution. This tendency of Congress to legiti- mate illegal Executive practices in the hope of limiting them now pervades many of the positive efforts this body is making to limit Presidential power. For example, most Members of the Senate agree that the Presidential im- poundment of over $15 billion is uncon- stitutional. In many instances, it has represented an item veto, a veto without congressional review. The Constitution gave Congress the power to override Presidential vetoes. Congress was to de- cide domestic priorities through its power of the purse. Impoundment violates the constitutional schema. To limit this ar- rogant assertion of Executive license, Members of this body have begun con- sideration of legislation. Last year, as a first step, we passed a requirement that the President notify us of all impound- ments. Immediately, officials of the OMB claimed that such legislation constituted tacit recognition of the legality and con- stitutionality of impoundment. The pattern is similar: An Executive usurpation of the powers of Congress un- der the Constitution; a moderate attempt by Congress in response; and the ensu- ing claim by Executive spokesmen that such an attempt legitimates the initial usurpation. Moreover, in impoundment as in the Javits bill, Senators have pro- posed legislation which would authorize impoundments with the proviso that Congress approve them within a given time period. Once again, the Congress would legitimate a clearly unconstitu- tional Presidential practice in the hope of limiting it. With such legislation, we are giving away our powers, admitting that the executive branch has a growing monop- oly over decisionmaking in this society. As the Roman Senate before us, I fear we will discover that such a course will soon terminate our usefulness, transform us into lobbyists for Executive favors. If we consider the pending bill seri- ousl we can all di t the lt y pre c resu . A ignores our recent agonies, but legiti- Wormuth, a noted constitutional scholar, President will initiate war in some mates them, an act which I find uncon- shows that 48 had congressional approv- steamy corner of the world, claiming scionable. al, 1 was in self-defense, and 6 were that an imminent threat to our troops The major shortcoming of this bill, minatory demonstrations, 6 to 8 were exists. After 30 days he will come to Con- however, is broader than such semantic clear usurpations. gress and to the public, and state that interpretations. This bill simply aban- But the strength of the precedents is American forces are in danger, that we dons the constitutional requirement that irrelevant. To treat such incidents as al- must rally to the flag. There is nothing no war be entered without prior congres- tering the constitutional allocation of in the history of this body, or of any sional declaration. It gives to future power is to give the President the uni- legislative body which suggests that we Presidents the right to claim that Con- lateral right to amend the Constitution. can or would refuse to "support the gress has legitimated Executive warmak- If such a basic alteration in the con- troops" in a moment like that. That is legal scholar of his generation," and sec- ond only to Madison as architect of the Constitution, noted that this power was lodged in Congress so that no "single man (can) involve us in such distress." The framers of our Constitution feared that rulers tended to make war for reasons of honor, pique, and pride. They sought to make war difficult to enter, because the genius of a democracy was that it was peaceful and peaceloving. Thus, they required that such a momen- tous decision only be undertaken with the consideration and support of the Congress. The framers acknowledged only one exception to this rule-the President could use the Armed Forces to repel sud- den attacks on the United States. Such attacks threaten the country itself and naturally required immediate response. That was to be the only exception. We have witnessed and grown fright- ful accepting of a course of Executive usurpation of this power. The Presi- dent and his spokesmen claim that his role as Commander in Chief or his in- herent power as Chief Executive, pro- vide him with the constitutional right to make war. Yet any constitutional scholar of independence agrees that the framers had no such intention, that neither the grant of Executive power nor the role of Commander in Chief was intended to give the Executive the right to make war unilaterally. In the end, executive spokesmen must. rely on what they claim is a practice of Presidential warmaking-a practice which alters the original distribution of powers in the Constitution. "Adaption by usage"-the administration language is simply a polished label designed to cover the unpalatable claim that the President by his own practice may revise the Constitution and disrupt the division of powers in order to meet his taste or designs. Administration spokesmen claim that a history of undeclared armed encoun- ters-numbering from 125 to 165-estab- lishes new constitutional authority in the Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 514162 Approved For sa g fflJ6 J W1 75 f,g000700090010y1 -.20, 1973? precisely why the founders of this great Nation provided for a congressional dee= laration of war prior to its initiation. Moreover, even if Members of this body dared to face down the President, his response would be predictable. With great reluctance and a heavy heart, ex- ercising the powers given him by this bill, he would announce that the fighting must continue to protect the troops in the course of their "prompt disengage- ment." And in some unknown corner of the world., American men would die, bombs would fall, peasants would be slaughtered, populations uprooted-the President would have his little war, and the Congress would be an accomplice. At such a time, this great body will be known not as prudent, but as inconti- nent, not as powerful, but as important,, not as courageous, but as supine, not as an equal branch of Government, but as an ornament to a warmaking machine we are unwilling to control in spite of public outrage, moral obloquy, and Con- stitutional mandate. How many years will it be after the passage of this bill? Ten years, five, one year, six months? I strongly urge that we reconsider our course. I thank the Senator for yielding. Mr. MUSKIE. Mr. President, will the Senator yield? Mr. EAGLETON. I wanted to yield to the Senator from Arizona. Mr. MUSKIE. To make a brief re- quest? Mr. EAGLETON. I yield. Mr. MUSKIE. Mr. President, I ask unanimous consent that James Woolsey, Nancy Bearg, and my legislative assist- ant, Alan Platt, be allowed the privileges of the floor during the consideration of the bill. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. JAVITS. Mr. President, I made a similar request for Albert Lakeland, of my staff. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. EAGLETON. Mr. President, I yield 5 minutes to the Senator from Ari- zona (Mr. GOLDWATER). Mr. JAVITS. Mr. President, will the Senator yiedl to me for 1 minute? If he needs more'time, I will yield him 1 min- ute from my time. Mr. GOLDWATER. I yield. Mr. JAVITS. The Senator issued a challenge that we answer 25 points re- ferring to the war powers bill. I have done that and will make available the answers to the Senator from Arizona, and I offer them for the RECORD at this time. On July 18, 1973, during the war pow- ers debate, Senator GOLDWATER made the following statement: I recall the debate last time and the fact that we did not have much time. I am just as disappointed as is the Senator from Colo- rado in the fact that the Committee on For- eign Relations did not seemingly allow any opposition witnesses. I requested to be heard before the committee, but I was not given a chance to be heard, so I have to be heard on the floor. Here are the facts: 1. In 1972 the Senate debated the War Powers Act for a total of 11 days. There was no effort made to limit or cut off opposition debate and the bill passed overwhelmingly, 68 to 16. 2. With respect to GOLDWATER's View that "tie Committee on Foreign Rela- tions did not seemingly allow any oppo- sition witnesses" in its hearings this year, the fact is, as stated in the hearings: Charles: M. Bower, acting legal adviser of the State Department, testified on be- half of the administration in opposition of the bill, as did David Maxwell, a former president of the ABA and mem- ber of the State Department Advisory Panel on International Law. Moreover, as indicated on page 53 of the hearing record, ',the following persons who had indicat d opposition to the bill were spe- cifically! and personally invited to testify but dec lned or were unable to do so: Secretary of State Rogers. Deputy Secretary Rush. Prof. Eugene Rostow. Prof. Arthur Schlesinger, Jr. Forn er Secretary of State Dean Rusk. Former ABA President Eberhard Deutsch. Former ABA President Charles Rhyne. Prof. Francis Wormuth. All' o$ those above were not only per- sonally'and individually invited, but each was, requested to submit a statement for the record if he were not able to testify in pers n. Senator DomiNIcI submitted a state ent for the record, which ap- pears o page 250 of the hearings. Sena- tor Go DWATER was invited to testify but was necessarily absent in Arizona for the week during which the 2-day hearings took p ace. At the request of Senator GOLDW TER'S office, you personally placed his sta ement in the record. The state- ment o Senator GOLDWATER occupies 40 pages Of the hearings-from page 116 to page 1$6. In addition, it is pertinent to point out that during the course of the Foreign Relations Committee hearings, both in 1971 and 1973, six witnesses appeared in opposition to the war powers bill: Sena- tor GOLDWATER, Prof. John Norton Moore,' Secretary of State Rogers, former Under Secretary of State George Ball, Acting Legal Adviser Charles M. Bower and Mi. David Maxwell. Moreover, extensive critiques of the war powers legislation appear as appen- dixes in the printed hearings conducted in 197 and 1973. Senator GOLDWATER's unanswered "25 Grave,! Practical, and Constitutional Problems: " 1. "The 'bill prevents `show of force' and other mere deployments of troops or arms." ' Comment: It was made absolutely clear during the debate last year and again is made clear in the committee re- port this year that show-of-force deploy- ments .for example, the movement of the 6th Fleet into the eastern Mediter- ranean - during the 1970 Jordanian crisis-rare not restricted by the bill un- less and until they involve the Armed Forces! in hostilities or in situations where imminent involvement in hostili- ties is, clearly indicated by the circum- stances. Should these latter conditions pertain, then, of course, "show of force" would be covered by the bill as that is the entireintention of the bill, which relates to involvement in hostilities. 2. "U.S. Forces cannot be used in de- fense against any threat which poses a future, rather than immediate, danger to the United States, even if the ultimate safety of the Nation is clearly at state." Comment: In fact, under section E (4) of the bill, the President has ample op- portunity to obtain from the Congress specific statutory authority to deal with any legitimate future threat to the accu- rity of the United States. However, in the absence of any emergency, which is the situation hypothesized by Senator GoLD- WATER, the bill rightly does, of course, re- quire prior congressional authorization pursuant to the Constitution of the Unit- ed States. In this context, the admoni- tion articulated in 1848 by Abraham Lin- coln is, most pertinent and-articulate: Allow the President to invade a neighbor- ing nation, whenever he shall deem it neces- sary to repel an invasion, and you will allow him to do so, whenever he may choose to say he deems it necessary for such purpose---and you allow him to make war at pleasure. S':udy to see if you can fix any limit to his power in this respect ... If, today, he Should choose to say he thinks it necessary to invade Car ada, to prevent the British from invading us, how could you stop him? You may say to him, I see no probability of the British invading us but he will say to you be silent; I see t, if you don't. 3. "The bill endangers the entire struc- ture of American mutual security agree- ments which now stand as the greftest safeguard global peace." Comment: This generalization is un- supported by fact or compelling argu- ment. The important point is that all of our mutual security treaties contain the provision that its articles are to be car- ried out "in accordance with Cons';itu- tional provisions." In the United States, the "constitutional provisions" with. re- spect to going to war require the ap- proval of both Houses of Congress. 4. "The bill repeals outstanding area resolutions, such as the Middle East Res- olution." Comment: The contrary is clearly stated on pages 23-24 of the committee report, which reads as follows: There is a clear precedent for the action anticipated in subsection (4) -the "area res- olution." Over the past two decades, the Con- gress and the President have had consider- able experience with area resolutions-some of it good and some quite unsatisfactory. In its mark-up of the war powers bill, the For- eign Relations Committee considered this experience carefully in approving the lan- guage of subsection (4). The wording cf the final clause of subsection (4) holds the va- lidity of three area resolutions currently on the statute books. These are: the "Formosa Resolution" (H.J. Res. 159 of January 29, 1944); the "Middle East Resolution" (H.J. Res. 117 of March 9, 1957, as amended) and the "Cuban Resolution" (S.J. Res. 230 c?f Oc- tober 3, 1962). 5. "The bill blocks U.S. humanitarian relief missions, such- as the 1964 joint United States-Belgian rescue operation in the Congo." Comment: It is not at all clear what Senator GOLDWATER means by "humani- tarian relief missions." If such missions involve the Armed Forces of the United States in hostilities or in situations where their imminent involvement is clearly indicated by the circumstances, the war powers bill does indeed and quite properly apply. However, there is, of Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July '20, 1973 Approved WjLWO00700090010-9 S 14163 course, no restriction on humanitarian of the bill. Therefore, the terminology the judgment of the executive branch, relief operations per se in this bill, nor, is not statutory controlling. For statu- necessary authorization can be requested of course, is there any intention of re- tory purposes the terminology. of section and obtained under section 3 (4) of the stricting such relief operations which 3 is controlling over the slightly varient bill. may be appropriate, providing they do terminology of section 2, the "purpose 15. "The 30-day time restriction on not involve the Armed Forces in a war and policy" statement. So far as the emergency military actions might pres- without the approval of Congress. slightly . divergent terminology of the sure a President to go all out by resorting 6. "The bill prohibits any military ac- initial paragraph of section 3, as com- to total war during the short period of tion by the President designed to defend pared with the language of sections 1 time allowed him." the overseas economic position of the and 2 is concerned, there is no differ- Comment: This charge persumes bad United States." ence in meaning or intent. The charge is judgment and irresponsibility on the Comment: Under section 3(4) the bill thus a distinction without a difference. part of the President. The bill assumes provides a procedure for obtainling con- 11. "The 30-day limit of the bill, after good faith and a sense of high respon- gressional authorization for any justified which troops cannot be used, even in sibility on the part of the President, as military action in defense of U.S. eco- emergency situations, is unrealistic and well as upon the part of the Congress in nomi i t t " c n eres s, as, if and when con- curred in by the Congress. The bill does, of course, prohibit unilateral "gun boat" diplomacy by the President on behalf of U.S. property or interests abroad, as was so often the lamentable practice during the heyday of 19th century imperialism in Europe-and even emulated by Amer- ican Presidents in the latter part of that century. 7. "The bill prohibits U.S. personnel in the NATO integrated commands from exercising any functions-any func- tions-during a crisis." Comment: Section 9 of the bill (page 9, lines 7-15) clearly provides to the con- trary. This is additionally made unmis- takably clear on page 31 of the com- mittee report. 8. "The bill may trigger World War III by causing foreign adversaries to believe the United States will not respond to threats to world peace, because of legis- lative restrictions." Comment: The credibility of U.S. ac- tions in the world require a united home front which can only be achieved when the Congress is joined with the President in decisionmaking and in support of basic U.S. International security policy. 9. "The bill compels a vote by Congress shortly after each crisis occurs and might precipitate a legislative reaction far more dangerous than the response the President has chosen." Comment: I reject the-fundamental premise of this charge-that is, that the Congress is less responsible than the President. I believe that the last 10 years at least has been to the contrary. More- over, there is nothing in the bill which compels Congress to vote at the peak of a crisis. In emergency situations, the President has 30 days to act without spe- cific statutory authorization. The choice of this long a period is designed pre- cisely to allow Congress to consider each situation thoroughly and dispassion- ately-in contrast to the experience of Congress with respect to the Tonkin Gulf Resolution. Moreover, the provisions of S. 440 are flexible enough to enable the Congress to decide by majority vote just how it wishes to dispose of each issue- allowing full flexibility to restrain from untimely votes, such as hypothesized by Senator GOLDWATER. 10. "The bill uses three totally dif- ferent and unexplained terms to describe the nature of the threat which must exist before the President can respond to foreign dangers." Comment: Section 2 of the bill is a negative statement of "purpose and policy." It is not the operative section dangerous. guarding the security interests of our Comment: The characterization of Nation. In the opinion of the authors of section 5 as "unrealistic and dangerous" the bill, it is not feasible or possible to is purely a subjective judgment. It is not legislate on the basis of presumed bad a conclusion that was reached by the faith, or irresponsibility on the part of overwhelming majority of the Senate, the President. which approved the War Powers Act by 16. "The bill attempts to do what the a vote of 68 to 16 on April 13, 1972. In Founding Fathers felt they were not wise point of fact, the sponsors of the legisla- enough to do, anticipate the unlimited tion believe that it is more unrealistic and unexpected variations of future and more dangerous to allow the Presi- events when defensive measures may be dent unilaterally to make war without needed." restraints without obtaining the concur- Comment: The implication of this rence of the Congress and thus the ac- charge is that total and unfetterd ad- quiescence of the American people. The vance authority must be given to the tragedy of our Nation in the undeclared, President to wage war at his sole and Presidential war in Indochina which total discretion. The Constitution of the has lasted already for a full decade United States clearly rejects any such demonstrates the greater dangers to our working premise, as does S. 440. One Nation and its security of unrestrained cannot legislate on the basis of hypo- Presidential warmaking. thetical unknowns. Rather, one must 12. "The President could not protect legislate on the basis of known factors U.S. fishing vessels against attack in and situation and hard experience. S. 440 territorial waters claimed by another na- is based upon actual historical experience tion." in contrast to future, unknown, uniden- Comment: Any decision to provide tified hypotheses. The authors of the bill armed naval escort to U.S. fishing ves- believe that this is the correct legislative sels certainly ought to require the prior approach and entails far fewer dangers statutory approval of the Congress. Dis- to our national security. puted fishing beds are well-known and 17. "The Declaration of War clause is there would be ample opportunity to ob- an outmoded and invalid basis for pass- tain a joint Presidential-congressional ing legislation which prevents Presiden- decision to intervene militarily in a fish- tial defensive reactions against foreign ing dispute. Certainly the very gradual dangers." buildup over a period of years of the Comment: S. 440 specifically and ex- British-Icelandic dispute indicates that plicitly deals with situations arising "in these are matters which can be con- the advance of a declaration of war by sidered judiciously in advance rather Congress." Moreover, the constitutional than on an emergency basis. underpinnings of S. 440 go beyond the 13. "The bill provides no authority for exclusive constitutional authority of immediate action- designed to rescue U.S. Congress to declare war. Article I, sec- citizens hijacked on an aircraft flying tion 8 enumerates other plenipotentiary through international airspace." war powers to the Congress, including Comment: It is difficult to envisage a the "necessary and proper" clause, the rescue being attempted in midair. Hi- authority "to make rules for the Govern- jacked aircraft must land, at which point ment and regulation of the land and rescue efforts could be undertaken un- naval forces" and to "provide for the der the provisions of section 3(3). None- common defense." theless, midair rescues could, of course, Senator GOLDWATER's view of the in- be made without restraint by S. 404. tention of the drafters of the Constitu- 14. "The President lacks any author- tion, as shown by his statement: "The ity under the bill for the protection of Founding Fathers very wisely gave the U.S. citizens on vessels within interna- power to go to war to the President and tional straits." the power to declare war-which means Comment: It is amply clear from the not much-to the Congress," is just not legislative history of the bill that any mine nor do I believe it is that of the good faith- reading of the term "high sponsors or a great majority of the Sen- seas" would be within the ambit of S. ate. 440. As used in S. 440, the words "high 18. "The bill erroneously assumes that seas" are used to distinguish inter- the power 'to declare war' means the national waters from territorial waters same thing as the sole power 'to make as recognized by the United States in ac- war'-which, I just explained, it does cordance with pertinent international not." agreements. If upon enactment of this Comment: S. 440 does not assume that legislation a serious ambiguity persists in the power to declare war is the same Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010-9 S 14164 Approved For Rahea mwiwft : &075B_R 00700090010-9Ju ' ,20, 1973 foreign dangers on his own authority and lead to some attempt to amend the Con- initiative." stitution-not necessarily to take sway Comment: Section 3 of S. 440 specif- war powers from the President, bit to ically :'deals with emergency defensive put more control on them. In that case actions by the President in the absence I would probably vote against such an of pri?r congressional authorization. amendment, but I believe it is the proper 22. It is an historical mistake of approach. monumental proportions to assume the Mr. President, I have made two spoech- war powers bill would stop future Viet- es on this subject. I am not going to be nam, when under its terms it would not able to be here during the vote because have prevented Vietnam itself." I have to go west because of illness in my Comment: This is an expression of family. opinion which the sponsors of S. 440 do THE PRESIDENT'S CONSTITUTIONAL WAR POWERS not share. In view of the Senate vote of Mr. President, the sponsors of 83. 440 1972 on the War Powers Act, it is an have asked during the debate for oppo- opinion that is not widely shared by the nents of the bill to come up with some Senate as a whole. "semblance of authority" for the P'resi- 23. "The bill creates a dangerous un- dential war powers. I intend to speak to certainty for the country in time of crisis this point directly at this time and am by ying to the President any judg- glad to hear that the sponsors of 3. 440 ment and discretion of his own to deter- will also be making a reply to the analysis mine,if an emergency exists which au- of 25 questions about the bill to which thories use of military force." I earlier invited them to respond. thing as the power to made war. As iswell known, the-initial draft of the Con stitution gave the exclusive power "to m make war"-this phrase being retained unchanged as it appears in the Articles of Confederation-to the Congress. On August 17, 1787, during the final revision of the text of the Constitution, James Madison and Eldredge Gary "moved to insert `declare,' strike out `make' war; leaving to the Executive the power to re- pel sudden attacks." This quotation f from Madison's notes on the Constitu- tional Convention. S. 440 follows very strictly the letter and spirit of the Con- stitution with respect to the relationship of declaring war and to making war, as intended, proposed and explained by James Madison, the author of this draft- ing change. It is significant to note further that S. 440 deals with situations wherein there is no congressional declaration of war, thus clearly contemplating situations in which there is war in the absence of a congressional declaration of war. The purpose of S. 440 is to restore the in- tended authority of Congress to "decide on war" in view of the modern practice of Presidents who do not request decla- rations of war from the Congress. 19. "The Necessary and Proper Clause does not give Congress power to define and restrict the constitutional functions of the President." Comment: The authors of the bill be- lieve that the "necessary and proper" clause of the Constitution gives Congress exactly the power which is defined in that clause: To make all Laws which shall be neces- sary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Govern- ment of the United States, or in any De- partment or Officer thereof. S. 440 is a wholly constitutional and proper exercise of the "necessary and proper" clause. In testimony before the Senate Foreign Relations Committee leading constitutional authorities of our Nation have affirmed the- constitutional-ity of S. 440, including specifically the appropriations and constitutionality of its use of the "necessary and proper" clause. 20. "There is not a single statutory precedent for war powers controls cover- ing unnamed geographic areas and un- foreseen situations." Comment: It is not at all unusual for Congress to initiate legislation which has no specific statutory precedent, as the need for such legislation arises in our Nation's history. Therefore, the absence of a specific statutory precedent would not be any more significant with respect to S. 440 than was the case respecting legislation establishing the Department tiff Atomic Energy, for instance. In point of fact, however, very interesting status tory precedents dating back to the earli- est days of our Republic do exist; for example, statute 1 of May 2, 1792, and statute 2 of February 28, :1975, both of which contain provisions and concepts remarkably parallel to S. 440. 21. "Historical usage has conclusively established the constitutional basis of Presidential defensive reactions against provides a means through which the President and the Congress can fashion any degree of flexibility, discretion and judgment which they jointly think nec- essary and proper in defense of our Na- tion' s security. 24. :"S. 440 will incite one of the gravest constitutional crises in American history without a means of resolution, because the Supreme Court treats the use of troops as a political question not subject to judicial decision." Comment: Our Nation already is in the IYlidst of a grave constitutional crisis with respect to the exercise of our Na- tion's war powers. S. 440 in fact provides a wholly responsible way out of the con- stitutional crisis which already exists. 251 1 "S. 440 ignores the true purpose of the rounding Fathers to prevent it re- currence of the interference with mili- tary operations which Washington ex- perienced with the Continental Con- gress." Comment: As almost all constitutional histc}rians have pointed out the principal purpose of the Founding Fathers in drafting the war powers provisions of the Constitution was to prevent a concentra- tion'of "monarchial" powers over war in the lands of the Executive. Many quota- tiont in this regard have been cited dur- ing the Senate debate, and are contained in the hearings and referred to in the committee report. Mr. GOLDWATER. Mr. President, I thank the Senator from Missouri for yielding to me. Before I make my remarks, I want to thank the Senator from New York for his very kind remarks about me. I ap- preclate them and I want him to know that the whole experience has been an enjoyable one= There has been no open Mr. President, there are four basic constitutional sources of the President's powers over national defense. First. The President is.expressly grant- ed by article II, section 1. all the "execu- tive power" of a sovereign nation, which includes as its natural attribute the pri- mary authority over use of military forces in defense of important national interests. Second. The President is specifically designated by article II, section 2, as the "Commander in Chief" and as such is charged with the supreme control and direction over the Armed Forces. Third. The President is expressly granted the right by article II, section 3, to execute the laws, which, ts the Supreme Court has recognized in the Neagle case, includes the capacity to base action directly on his own reading of obligations growing out of our inter- national relations. Fourth. The President is vested with a "constitutional primacy in the f.eld of foreign affairs." This is an implicit pow- er- which is recognized by at least six of the present members of the Supreme Court. Mr. President, constitutional autho- rities throughout our history have been almost unanimous in concluding that the President is . vested with an inde- pendent control and direction over the military forces in any situation where he believes there is a threat to our coun- try or its freedoms. The notion that the President is subject to-the policy direc- tives of Congress has been rejected by leading jurists time and again. It is only during the last decade or so, after the going got tough in Vietnam, that consti- tutional revisionists began changing their minds. The principle of a discretionary right vested in the President to commit troops fighting about it. He and I disagree as to outside the country as a means of pre- whether this question should be ap- serving or advancing the national safety prodched by legislation or by a constitu- is a consistent theme throughout more tion4l amendment. I think that is very than a century of authoritative vs ritings. fundamental. I do think, however, this It is most Certainly true, as John Quincy disc?ssion-I would not call it a debate, Adams remarked In 1836, that the Presi- becztuse that would be stretching it too dent is bound in duty to strive toward far, but this discussion-on the floor will, peace with the other nations of the I think, if the American people will fol- earth. "Yet," Adams warned, "must a low, it and the press will follow it and President of the United States never if we can get people talking about it, cease to feel that his charge is to main- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved FoC(WCBI! QQ MIO P-75SD&$ 000700090010-9 S 14165 tain the rights, the interests and the honor no less than the peace of his coun- try-nor will he be permitted to forget that peace must be the offspring of two concurring wills. That to seek peace is not always to ensue it." This fundamental and -philosophical observation on the condition of mankind echoed the change of heart which had taken place in Thomas Jefferson, who admitted his error in believing that the United States could remain at peace whatever the trend of world events else- where. By March 2, 1815, Jefferson had come to realize that "experience has shown that continued peace depends not merely on our own justice and prudence, but on that of others also." Mr. President, this reflects the same practical attitude which guided the Founding Fathers in the formation of the new Republic. However much the Founding Fathers may have wished 'to live by a policy of avoiding foreign troubles, they recognized even then, hav- ing witnessed the great weakness in the management of military affairs by the Continental Congress, that the Nation cannot be safe unless there is a single Commander in Chief with an unre- stricted discretion to resist foreign dan- gers wherever and whenever they may exist. In whichever capacity, from his Ex- ecutive power or as Commander in Chief, Presidents have throughout American history-as already recognized by John Quincy Adams in 1836-committed American troops to danger points outside the boundaries of the United States with- out a declaration of war. These total almost 200 occasions. These are not in- stances in which the President- merely called out the troops. This list includes only actual battles overseas or landings of American forces on foreign soil, ex- cept for fewer than 10 instances when major deployments of forces are in- cluded. All of these Presidential actions involved the serious danger of war. Whatever these Presidents may other- wise have written on the subject, it is an unquestioned fact that almost every one of them has reacted on his own initi- ative to any crisis which he believed might present, or might develop into, an unacceptable threat against our national security. There is a consistent course of action by which Presidents have always used whatever force they believed was necessary and technologically available at the particular moment to respond to foreign threats. President Buchanan, to cite an ex- ample relied upon to the contrary in the report of the Foreign Relations Com- mittee, sent American troops into armed action abroad on 11 occasions. In one major episode occurring in 1858, Presi- dent Buchanan risked an all-out conflict with Great Britain by ordering, without authority from Congress, a naval force to protect all merchant vessels of the United States on the high seas from search or detention by the vessels of any other nation. Fortunately, a conflict with Great Britain was avoided at the last moment by her abandonment under this pressure of her claim to the right of visit and search. Thus, Mr. President, the idea that Presidential troop commitments are a re- cent development as alleged in the re- port of the Foreign Relations Committee is a myth. Moreover, the committee is in error in its report when it claims that prior to World War II "Presidential use of the Armed Forces without congres- sional authorization was confined for the most part to the Western Hemisphere." At least 103 undeclared hostilities have .taken place outside the Western Hemi- sphere and 53 of them occurred before the 1900's. Another point about these Presidential initiatives that should be noted is the fact that Congress had never until this year passed a law blocking or, ordering a halt to any one of them. The question has come up many times and Congress has taken many votes on the issue since the birth of the Nation. For example, ef- forts were made within Congress to ap- prove _ resolutions rebuking President Tyler because of his deployment of troops to Texas in 1844; President Polk for his similar deployment of troops into terri- tory disputed with Mexico; President Grant for his sending of a naval force to the Dominican Republic to prevent internal disorder there, and numerous other deployments of American forces ranging from the stationing of'troops in Siberia after World War I to the occupa- tions of Haiti and Nicaragua in the 1920's and 1930's. Several votes were taken to restrict the deployment of American forces in these areas but none of the at- tempts were successful. For Congress to say that this longstanding interpretation may now be reversed, runs counter to the test of constitutional construction which the Supreme Court has applied in resolv- ing other conflicts between Congress and the President. The Supreme Court has applied the principle of usage as a determining factor in constitutional interpretation in at least two cases involving the power of the President in relation to Congress, United States v. Midwest Oil Company, 236 U.S. 459 (1915) and Myers v. United States, 272 U.S. 52 (1926). In Myers, the Court held that Congress could not shift gears after 73 years of a particular practice and start setting limitations on a Presi- dential practice which it had never before restrained, even though the prac- tice had often been the subject of bitter controversy. The Court held: Nor can we concur . that when Con- gress after full consideration and with the acquiescence and long-practice of all the branches of the government, has established the construction of the Constitution, it may by its subsequent legislation reverse such construction. It is not given power by itself thus to amend the Constitution. 272 U.S. 175. In his letter to me of January 12 of this year, Prof. Myers S. McDougal, perhaps the prominent authority on foreign rela- tions law under the Constitution, agreed that our usage is an important guide to constitutional interpretation. Professor McDougal wrote: The emphasis upon usage, as a test of Con- stitutionality, in our early article' was based upon the notions that a people's genuine "constitution" is in how they live and coop- erate under a basic charter and that the most important authority in a democratic community is in the expectations that people create in each other by such living and co- operation. The most important principle of interpretation in any legal system I have studied is that which requires examination of "subsequent conduct" as an index of con- temporary expectation. Thus did Professor McDougal recon- firm his reliance upon historical usage in reaching a conclusion published in 1945 that- Several distinct and well-established lines of authority establish the President's inde- pendent powers to make protective use of the armed forces of the United States, with- out awaiting a Congressional declaration of war or any other specific statutory author- ization. 54 Yale L.J. 534, 608 (1945). Though the Supreme Court does not appear to have addressed itself directly to the question of Presidential discretion in the use of Armed Force abroad during an ongoing hostility, at least six mem- bers of the current Supreme Court rec- ognize- the President is vested with a large area of independent and primary power in this general area. Justice Stew- art and Justice White have expressed this view by writing that the Constitu- tion endows the President with "a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense." 403 U.S. 713, 729 (1971). Justice Blackmun has added that: Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Id., at 761. Justice Marshall believes that: It is beyond cavil that the President has broad powers by virtue of his primary re- sponsibility for the conduct of our foreign affairs and his position as Commander-in- Chief. Id., at 741. Also pertinent is a holding by Justice Rehnquist, joined by Chief Justice Bur- ger and Justice White, which rests squarely upon the proposition that the executive branch is charged "with pri- mary responsibility for the conduct of foreign affairs." 406 U.S. 759, 768 (1972). In summary, the perspective of Amer- ican history and of the real intent of the Framers of the Constitution comes close to justifying the statement made by then President Abraham Lincoln "that meas- ures otherwise unconstitutional might become lawful by becoming indispens- able to the preservation of the Constitu- tion through the preservation of the Nation." This principle, which has been adhered to throughout the long history of the United States, means that the President can take defensive measures, without control by Congress, whenever in his judgment it is necessary to defend the important interests of the Nation. Mr. President, I do not believe that Congress can now change an arrangement which is so firmly imbedded into the Constitu- tion by mere legislation. Congress can- not substitute a different plan of gov- ernment by any process other than a constitutional amendment. Mr. President, so that there may be a more complete discussion of the bill and the fundamental issues available to my colleagues, I ask unanimous consent that Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010-9 S 14166 Approved For F~e_&1 f[I FJ5Bg#,MRF A0700090010-9 JW . 20, ' 97,'Y a West Virginia Law Review article pre- pared by my legal assistant, Mr. Terry Emerson, on war powers legislation shall be printed in the RECORD. There being no objection, the paper was ordered to be printed in the RECORD, as follows: [Reprinted from Emerson, War Powers Legislation, 74 West Virginia Law Review 53 (1972) ] WAR POWERS LEGISLATION 1. INTRODUCTION The Ninety-Second Congress has been marked by the unusual drama of a vigorous and persistent effort by the Legislative Branch to confront the President, eyeball to eyeball, over the primary issues of war and peace? Nowhere has the contest been joined in a more fundamental way, reaching to the very core of the division of powers between the two political branches, than in the bold thrust by several senators to codify the rules governing the circumstances in which the United States may go to and remain in war.2 No less than 19 senators have introduced or cosponsored one of five different bills or joint resolutions seeking to define the in- stances when the President may use or deploy the Armed Forces of the United States.' Taken singly or severally, these measures purport to demark the sole conditions under which the President can initiate military hostilities and to restrict his authority to continue any such hostility beyond a brief period unless and until he has obtained a new and specific authorization from Congress.4 It is the purpose of this article to examine the validity of such a legislative approach and, in so doing, to test its practical sound- ness. II. DESCRIPTION OF WAR POWERS BILLS First, it is necessary to know what the War Powers Bills attempt to do. Accordingly, we might start by reviewing the bill, S. 731, introduced by Senator Javits. The other measures then can be discussed in relation to how they differ from S. 731. In its first section, the Javits bill provides that the "use of Armed Ford of the United States in military hostilities in the absence of a declaration of war [shall] be governed by the following rules. " 5 These rules are (1) the President shall initiate military hostilities only in four prescribed circum- stances; 8 (2) the President shall report promptly to Congress whenever military hos- tilities commence; 7 (3) in no event- shall such hostilities be sustained beyond thirty days unless Congress enacts legislation to this end;8 and (4) the President's authority to sustain such hostilities may be terminated short of thirty days by joint resolution of Congress .0 The four situations in which the President is limited to using the Armed Forces are: "1. to repel a sudden attack against the United States, its territories, and possessions; "2. to repel an attack against the Armed Forces of the United States on the high seas or lawfully stationed on foreign territory; "3. to protect the lives and property, as may be required, of United States nationals abroad; and "4. to comply with a national commitment resulting exclusively from affirmative action taken by the executive and legislative branches of the United States Government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commit- ment, where immediate military hostilities by the Armed Forces of the United States are required." 10 In addition, S. 731 creates a system by Footnotes at end of article. which legislative proceedings shall be ex- pedited whenever a bill or resolution is in- troduded continuing any military hostility Initiated in one of the above four instances or terminating any such hostility " Finally, S. 731 expressly waives its application to hostilities undertaken before its enactment?' By omparison, S.J. Res. 59, introduced by Senator Eagleton, limits the President to committing U.S. forces to action only in three of the four circumstances outlined in S. 731, ommitting any authority for the President to comply with a treaty commit- men.t ~i, In fact, S.J. Res. 59 specifically man- dates that no "treaty previously or hereafter enter Into by the United States shall be construed as authorizing or requiring the Arms Forces of the United States to ,engage in hostilities without further Congressional authorization." u Another distinguishing feature of the Eagleton resolution is found in its express declaration that "authorization to commit the Aimed Forces of the United States to hostilities may not be inferred from legisla- tive enactments, including appropriation bills which do not specifically include such authorization." 1 In addition, S.J. Res. 59, unlike S. 731, includes a definition of the term "hostili- ties." ililaa In this way, S.J. Res. 59 not only ap- plies to "land, air, or naval actions," 17 but also to the deployment of American forces abroad "under circumstances where an im- mine ~t involvement in combat activities with Other armed forces is a reasonable pos- sibilit ." 18 United States military advisors acco anying "regular or Irregular" troops of a f reign country on any combat mission are si#nilarly reached by the del nition 19 If a governing Congressional authorization exists,' of which the resolution itself appears to be one, the President is authorized to order American Forces into a third country with which, we are not then engaged in hostilities when In hot pursuit of fleeing enemy forces or when a clear and present danger exists of an, imminent attack on our forces by enemy units located in such third country'? One; remaining difference between the Javits, bill and the Eagleton resolution is the requirment in S.J. Res. 59 that the Presi- dent 4hall report periodically on the status of any authorized hostilities,2' rather than solely at the onset of such actions?9 The third War Powers legislation, S.J. Res. 95 by Senator Stennis, is essentially similar to theI provisions contained in S.J. Res. 59. The organization of sections is shifted some- what, and Senator Stennis explicitly adds autho ity for the President "to prevent or defen against an imminent nuclear attack on th United States," Y8 thereby making pre- cise at is broadly allowed under the Other proposals, Finally, S.J. Res. 95 refers to "armed conflicts" 24 instead of "hostilities." 95 But the main substantive difference be- tween the two joint resolutions lies in the absence from S.J. Res. 95 of an explicit dis- avow saying a national commitment can- not arise from a treaty 2A and its omission of the "hot pursuit" provision of S.J. Res. 5927 One change in the Stennis resolution which, could become important in different circurIstances Is its non-application solely to the Vietnam conflict 98 This could mean that if war should break out at some fresh spot in the world, the action would be within the scope of the proposal's limitation even though it had started before the proposal was enacted. But in the event an unexpected military venture should develop before S.J. Res. 69 became law, the action would not be limited by the statute '8 S. 1$8090 introduced by Senator Bentsen, Is almost identical with S.J. Res. 95, and the above summary is adequate to describe its provisions 34 The fifth War powers legislation is S.J. Res. 18, proposed by Senator Taft. It is most like S. 731 in that it defines four circumstances similar to those of that bill in which the President is restricted to using military force?9 Unlike S. 731, however, the Taft reso- lution does not restrain the period of such hostilities to thirty days .n Nor does it in. clude any procedure for the speedy consider- ation of legislation seeking to terminate the action?4 Furthermore, S.J. Res. 18 extends solely to situations involving the commit- ment of forces "to combat," s while, S. 731 may possibly be construed to reach a much broader category of troop movements and uses' Furthermore, S.J. Res. 18 does not contain any provision exempting prior hostilities from its restriction?' It does contain a detailed part authorizing the continued deplcylnent of United States troops in Vietnam so long as necessary to accomplish a withdrawal of our forces and the assumption by South Viet- nam of its own defense." III. CONSTITUTIONALITY OF WAR POWERS BILLS A. Fundamental issues It is immediately evident that each of the War Powers Bills purports to lay dowel rigid boundaries which supposedly will govern the situations when the President may and may not use United States military forces abroad.30 Four of the five measures attempt to ;specify for how long our troops can be committed even in the limited situations where the President is allowed to act!8 But what is the source of Congressional authority over the decision of when and where to wage war? Does the Constitution unequivocally deposit the controlling power over military matters with Congress? Is there a line of court decisions clearly supporting the view that Congress can forbid the send- ing of troops outside the country? Does his- torical practice bear out the doctrine of Congressional supremacy over the 'ass of force in foreign affair? Or are the War :Powers Bills founded upon misplaced emotio:is and unproven postulates? B. Textual arguments in support of legislation The task of presenting arguments for the constitutional standing of-the War rowers legislation has largely been assumed by Sen- ator Javits. On March 5 of this year, he in- serted a thorough brief on his bill, Incorpo- rating a discussion of the textual arguments and decided , cases, into the Congressional Recordtl His brief argues that: "Article I, Section 8 confers on Congress the major war powers--the powers to provide for the common defense; to declare war; to raise and support'anarmy and navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute federal laws, suppress insurrections and repel in- vasions; and to provide for organizing;, arm- ing, disciplining and governing the mili- tary-and the authority to make all laws necessary and proper to the execution of such powers." 42 From this, the brief concludes "that the role of war policy formulation was intended for Congress and that the role of the Presi- dent was to be the faithful execution cf Con- gressional policy." 45 Thus. the executive power as Commander in Chief is seen as only a ministerial function," derived'from';he ex- perience of the framers of the Const,tution with the conduct of the Revolutionary War 8F Like General George Washington, whose commission from the Continental Congress insisted upon Congressional control of that war, 8 the "President, as Commander in Chief was intended to be the executive arm of Con- gress, carrying out its policy directives in the prosecution of military hostilities." 47 The concept held by Senator Javits lias re- ceived support from Professor Richsrd B. Morris, who recently assured the Senate Com- mittee on Foreign RelationS "it is a fair infer- ence from the debates on ratification and Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved Fo EUNGK'fM"J L kfd? P7 WRl, 8000700090010-9 S 14167 from the learned analysis offered by the involved the same statutes and included a legislative authority." 71 In the author's Federalist papers that the Warmaking- power declaration by Chief Justice Marshall to the opinion, this case, far from indicating a of the President was little more than the effect that "the whole powers of 'war" were superior role for Congress, points to the power to defend against imminent invasion "vested in Congress." ?2 Though heavily relied presence of a duty on the President to when Congress was not in session." 48 upon by sponsors of the War Powers legisla- answer certain challenges against the nation Not all commentators agree. Professor tion, the decision imposed absolutely no re- without waiting for Congress to baptize them Quincy Wright wrote in 1969: striction upon the Executive's conduct of an with a name.72 "I conclude that the Constitution and ongoing war. What the Court would decide Another case cited in support of the War practice under it have given the President, in the event Congress sought to shackle the Powers bills is Ex parte Milligan,73 in which as Commander-in-Chief and conductor of President's discretion in the middle of an the Court held that neither Congress nor foreign policy, legal authority to send the actual conflict presents a far different situa- the President could authorize the trial of a armed forces abroad; to recognize foreign tion than the minor incident settled by this civilian before a military tribunal in a State sion against the United States or a foreign state; to -conduct foreign policy in a way to invite foreign hostilities; and even to make commitments which may require the future use of force. By the exercise of these powers he may nullify the theoretically, exclusive power of Congress to declare war." 40 It is clear the above statement is not prin- cipally a modern day concept, erected in awe at the vast scope of Presidential conduct over the last twenty years .51 Professor W. W. Willoughby, author of a famous three volume work on constitutional law, reached the same finding in 1929. Willoughby declared that the power of the President to send United States forces outside the country in time of peace "when this is deemed necessary or expedient as a means of preserving or advancing the foreign Interests or relations of the United States" Is a "discretionary right constitu- tionally vested in him, and, therefore, not subject to congressional control." 61 The late Professor Edward Corwin, who was selected by Congress to edit the congression- ally sponsored Constitution Annotated,62 also recognized the President's authority to com- mit military forces abroad on his own ini- tiative 68 In 1944, he wrote that this power "had developed into an undefined power- almost unchallenged from the first and oc- casionally sanctified judicially-to employ Without Congressional authorization the armed forces in the protection of American rights and Interests abrroad whenever nec- essary." 64 In truth, there exists much informed opin- ion from which one might doubt the restric- tive view held by the advocates of War Powers legislation65 Contrary to the position asserted by a sponsor of one of these bills, there Is no uniform viewpoint or visible weight of opinion establishing that "the pro- posals are constitutional." 66 C. Cases used in support of legislation Regardless of theoretical arguments, what have the courts decided? According to the brief offered by Senator Javits, they have held unfailingly that Congress may curb the Executive's employment of military farce 67 a claim we shall now test. Three of the cases relied upon by the War Powers brief construe the application of early statutes applicable to the undeclared Naval War of 1798 to 1800, between the United States and Francg.68 In point of fact, all of the cases were decided after the event, subse- quent to the close of hostilities and had no bearing whatsoever on the conduct of an ongoing war. The first of the cases, Bas v. Tingy 60 (also cited as The Eliza), involved the factual de- termination of whether the term "enemy," as used by Congress, referred to French priva- teers. The sole purpose of the Court's exercise was aimed at determining whether the owner of the Eliza had to pay salvage under a spe- cial federal law relating to the recapture of ships from the "enemy," rather than under a general statute which provided for payment of a much lesser amount. It is true three jus- tices made sweeping references to the limits which Congress might set on hostilities, but these statements were in no way necessary to the decision of -the case 80 Talbot v. Seernan,61 decided a year later, case. which had been loyal to the Union during The third case, The Flying Fish,BS con- the Civil War. Though the case did involve, strued the meaning of a Federal law provid- limits on the power of the President, as well ing for forfeiture of American vessels em- as on that of Congress, the Court's language ployed in commerce with France. While the might well be read as restricting the au- statute empowered American war ships to thority of Congress to impede the Presi- seize United States trading ships going into dent's command of military decisions once French ports, President Adams directed the hostilities break out. Four of the justices navy to capture United States vessels both remarked upon the power of Congress in After the war was over, the Court held the seizure of a Danish vessel upon leaving a French port was unlawful. Plainly the Court's discussion of the con- flict between the Presidential order and the Act of Congress was dictum. Neither the President nor Congress had directed the seizure of neutral vessels. The capture of a Danish 4hip was not permitted under either claim of authority. Further, the case was not aimed at stopping the President from using American forces. It turned on the civil obli- gations of the comamnder of one American frigate, not on the respective roles of Con- gress and the President in the making of war 64 Another significant factor downgrading the relevance of,the above three cases has been raised by Professor John Norton Moore. Speaking before the Senate hearings on War Powers legislation, Professor Moore advised the committee "these cases involved an issue squarely within a specific grant of authority to Congress. That is, the power 'to make Rules concerning Captures on Land and Water.' Under the circumstances it hardly seems surprising or relevant that a congres- sional act concerning rules for capture was preferred by the Court to a presidential inter- pretation of that act." 86 Further question has been raised about this early line of cases by Secretary of State William P. Rogers, who reminded the Senate Committee on Foreign Relations that they were "decided before the doctrine of 'political questions' was formulated by Chief Justice Marshall in Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) and ... a similar case would prob- ably never reach decision on the merits today." 80 Indeed, one of the sponsors of S. 731 writes: "Also, it is conceded that should war powers legislation be enacted and result in a con- frontation between the President and the Congress, there is little chance of judicial interpretation." 67 Chronologically, the next decision relied upon in the War Powers brief Is the Prize Cases," a Civil War judgment regarding the legality of President Lincoln's blockade against the Confederacy. It is claimed this case proves "the Court's insistence upon Congressional authorization as the basis of Presidential war powers." 89 Yet Justice Grier, who wrote the Court's opinion, carefully ex- plained the issue was not whether Congress had authorized the blockade, but whether the President, acting alone, possessed a right to make military action "on the principles of international law, as known and acknowl- edged among civilized States?" 70 In upholding President Lincoln's right to meet the insurrection, the Court said: "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special time of war as follows: "This power neces- sarily extends to all legislation essential to the prosecution of war with vigor and suc- cess, except such as interferes with the com- mand of the forces and the conduct of cam- paigns. That power and duty belong to the President as commander-in-chief." 74 Another case which may actually enlarge upon the President's power, but has been cited as authority for the War Powers legis- lation," is United States v. Midwest Oil Co7n- pany7' This case considered the validity of a Presidential decree which withdrew from private acquisition all public lands contain- ing petroleum. The President had issued the order even though Congress had passed a law making these same lands free and open to purchase by United States citizens 77 Nevertheless, the Court found that the Executive had been making similar orders contrary to Acts of Congress for a long time and, as a result, had acquired a power to do what it had been doing 78 As we shall see in a later part of this article, the Midwest doctrine may thereby be applicable to sup- port the practice of Presidents to commit United States troops overseas without Con- gressional direction70 The remaining decision relied on in the War Powers brief is the "Steel Seizure" 80 case which arose out of President Truman's attempted takeover of the nation's major steel mills. Though the Court held, six to three, the President lacked authority on his own to take possession of private property, even on the ground of his role as Commander in Chief, it is plain the Court's majority treated the case as a domestic issue far re- moved from matters of day-to-day fighting in a theater of war 07 Justice Jackson appears to have expressed the mood of the Court aptly when he wrote: "We should not use this occasion to 'cir- cumscribe,' much less to contract, the lawful role of the President as Commander-in- Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to comand the instruments of na- tional force, at least when turned against the outside world for the security of our society." 82 Accordingly; it is believed the "Steel Seiz- ure" case is mistakenly cited as being ap- plicable to any situation regarding the use of United States troops outside the country for the protection of American interests. In the words of Secretary of State William P. Rogers, "the precise issue in that case was not the President's authority to conduct hostilities but the scope of his power over a clearly domestic matter-labor manage- ment relations." 83 A some what analogous decision, inspiring a multitude of opinions and touching on the fringes of the President's War Powers, with no direct limit on his right to deploy forces, is the New York Times case 84 relating to the publication of the so-called Pentagon Papers. In this case, Justice Douglas, joined by Jus- tice Black, aimed a thrust at the President Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14168 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July 20, 197"3 by proclaiming "[n]owhere are presidential wars authorized." 85 But this view was not taken up by any other member of the Court's majortiy, nor is it decisive of the Court's ruling. D. Source of President's powers over military and foreign affairs Numerous authorities have described in detail the vast scope of the President's au- thority to employ force abroad 80 In general, these observers point to four distinct powers of the President as the root of his independ- ent authority. The powers are centered in his acquisition of all the "Executive Power" of a great and sovereign nation,97 in his mandate to initiate and conduct foreign policy,' in his right and duty to "take care that the laws be faithfully executed, "5 and in his designation as Commander in Chief? The very first sentence of article II of the Constitution reads: "The Executive Power shall be vested in a President of the United States of America." 91 As Solicitor General Erwin Griswold has recently noted, the grant of Executive power "is not a merely passive grant." 99 It was Alexander Hamilton who first used this grant in arguing that the President's role in international matters is a positive one m In fact, Hamilton claimed this clause had vested in the President the inherent powers held by any sovereign nation, includ- ing the right to form policy which "may, in its consequences, affect the exercise of the power of the Legislature to declare war." e4 The Hamiltonian concept of Inherent powers over foreign affairs appears to have influ- enced Chief Justice John Marshall, who in 1800 while still a Member of the House of Representatives, conceived the familiar quote: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." 96 In 1971, Justice Harlan, Chief Justice Bur- ger, and Justice Blackmun breathed fresh life into Marshall's characterization by writ- ing: "From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this de- scription o fthe scope of executive power." 00 The reference by these three justices to the President's "constitutional primacy in the field of foreign affairs" was echoed in the same case by Justice Thurgood Marshall who declared: "[Iit is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Com- mander-in-Chief." 97 All four justices cited with approval 08 the landmark case of United States v. Curtiss- Wright Export Corp.,? in which the Supreme Court had embraced the doctrine of "inher- ent" powers over the conduct of foreign af- fairs. There the nation's highest tribunal held it was dealing with "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress . . . . " loo The third pertinent power of the President is derived from his duty and right to execute the laws, an implicit authority which often is overlooked in contemporary discussions of the war powers. Professor Quincy Wright has remarked on this authority: The duty to execute the laws is not limited to the enforcement of acts of Congress and treaties of the United States, but includes also "the rights, duties and obligations grow- ing out of the constitution Itself, our inter- national relations, and all the protection im- plied by the nature of the government un- der the constitution." 10, Corwin has described the implications of this doctrine as follows: Thanks to the same capacity to base ac- tion directly on his own reading of inter- national law--A capacity which the Court recognized in the NeagZe case-the Presi- dent has been able to gather to himself powers with respect to warmaking which ill accord with the specific delegation in the Constitution of the war-declaring power to Congtess102 Thus, the implied power of the President to interpret for himself the scope of our international obligations has enabled him to validly exercise powers which might other- wise appear to have been left to the proper authority of Congress103 It has also been judicially determined that "the President's duty to execute the laws includes a duty to protect citizens abroad. ... , Thus said Justice Nelson, who sitting as a trial judge in 1880 upheld the authority of the President to take whatever action he determines proper to protect "the lives, lib- erty,and property" of the citizen abroad, without awaiting word from Congress."" The corollary right of a citizen abroad "to de- mand the care and protection of the Federal government over his life, liberty, and prop- erty"', was subsequently recognized by the Supr$mp Court,108 which expressly included this protection among the privileges and im- munties of citizenship guaranteed by the Constltution."5 Not only is there persuasive domestic law on the issue of intervention abroad for the protection of citizens, but J. Reuben Clark, citing several international authorities, claims: There is considerable authority for the proposition that such interposition by one state; in the internal affairs of another state for the purpose of affording adequate pro- tection to the citizens of one resident in the other as well as for the protection of the property of such citizens, is not only not im- proper, but, on the contrary, is based upon, is in accord with, and is the exercise of a right recognized by International law108 In addition, the right of the nation to de- fend' itself, as well as its citizens, Is clearly established in both international and domes- tic lawl?D A fourth source of the President's powers in the field of war making rests upon his designation as Commander In Chief u? This power has been succinctly defined to encompass "the conduct of all military oper- ations in time of peace and of war, thus em- brac{ng control of 'the disposition of troops, the direction of vessels of war and the plan- ning and execution of campaigns," and to be "exclusive-and independent of Congressional power." 111 What little judicial holdings there are on this power suggest it is largely an unfettered one. For example, in 1886, the Supreme Court pointedly stated: "Congress cannot direct the conduct of campaigns." 179 In 1897, the High Court affirmed a decision by the Court of Claims which held: "Congress cannot in the disguise of `rules for the government' of the Army impair the authority of the Presi- dent) as Commander in Chief." m E. Historical overview of President's war powers Some twenty-five years ago, James Rogers, a former Assistant Secretary of State wrote: "It must be evident that the control of for- eignpolicy and of the armed forces left to the President by the Constitution and rein- forced by a century and half of augmenta- tion, reduces the reservation of the power to 'declare war' to a mechanical step, sometimes even omitted." 114 What had happened to allow Rogers to assert such a bold claim? It was his discovery, unknown and unnoticed by most Americans, that "[t]he Executive has used, force abroad at least a hundred times to accomplish national purposes without reference to Congress." 115 This astonishing total was evaluated by Professor Corwin, who stated: "While invit- ing some pruning, the list demonstra;es be- yond peradventure the power of the Presi- dent, as Chief Executive and Commander in Chief, to judge whether a situation requires the use of available forces to support Amer- ican rights abroad and to take action in accordance with that decision." 118 Clearly little wars are not "phenomena new to the national experience," 117 a> some authorities, obsessed by the Vietnam war, would have us believe.118 Indeed, by April of 1971, Senator Barry Goldwater inforir ed the Senate War Powers hearing that research at his direction had "turned up 153 such actions." 110 The Goldwater study is a con- tinuing one and a fresh review of tk.e sub- ject by the author in preparation for future testimony by Senator Goldwater reveal s there are at least 192 120 separate military a ngage- ments initiated by the Executive branch without a declaration of war from '.798 to 1971121 ' The list seems particularly imposing since its total consists of hostilities where actual fighting took place, landings were tirade on foreign soil, or United States citizens were evacuated. No precedents we listed involving mere deployment of forces csr draft simply to maintain an American presence, even if the deployment constituted an alert accom- panted by an advanced state of readiness, except for some eight instances in which the risk of was was particularly grave. N,r have any military operations been offered a> prece- dents which were subsequently die avowed or repudiated by the Executive 199 Are these precedents "minor undertak- ings"193 and "short-lived"194 as clix-ged by some critics? Are the incidents conlined to the Western Hemisphere and contiguous territory up to "the last twenty yeare or so," with the solo exception of-the Boxer Expedi- tion, as claimed by Henry Steele Com- mager? IN The author believes the record stands for itself. We might note first that out of the 192 actions listed, 100 occurred outside the Western Hemisphere' 85 of them taking place before "the last twenty years o' so." 19r To which fact, we might -add that 81 hos- tilities constituted actualtombat operations or ultimatums tantamount to the use of force 198 Ninety-three engagements continied for longer than 30 daysl'5 NO more than 81 of the precedents; 3? less than half, could argu- ably have been initiated with the support of a legislative instrumentality. At lea,;t 43 of the precedents 131 were ' c9aculated and ideo- logical" lag in the sense that they committed the United States outside its own territory in order to advance major, long-range national interests stretching far beyond the immediate protection of its citizens or territory. Were the operations minor? In 1854, at a time when American forces did not exceed 50,000 men, Commodore Perry took 2,000 of them to the other side of the world :.n order to pressure Japan into reaching a commercial treaty with us.'= Between 1899 and 1901, the United States used 128,468 troops to put down the Philippine Insm'rection 184 After World War I had ended, we landed 5,000 soldiers at Archangel, Russia, and 9,000 more in Siberia, to aid the anti-Bolsheviks and to forestall Japanese :expansionist plans in Siberis135 From 1926 to 1933, United States Marines fought more than 150 battles in Nicaragua and lost 97 men in seekin? to Poll what has been referred to as the "first at- tempt of Communism to infiltrat3 Latin America." 138 In 1927, the United States had 6,00) troops ashore in China and 44 naval vessel s in its waters 197 In numerous other instances, the United States has put ashore hundreds and even thousands of forces on foreign lands 108 Put in the perspective of their own times, it is believed these interventions cannot be classified as "minor." Rather, the author Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 197'3 Approved For&Jqt5fi?M9R0L6 k 75 1 JW000700090010-9 S 14169 would agree with the assessment of Professor "I think the Javits proposal requiring the ure created by the legislation, this vote likely Henry Monaghan that: President in effect to get out if Congress does would have occurred (Congress then having [Wlith ever-increasing frequency, presi- not act within 30 days is dangerous." 152 been in session) within a matter of a few dents have employed that amount of force These thoughts have been refined and ex- days. Thus, Congress would have voted right they deemed necessary to accomplish their panded by others who are in outright opposi- at the peak of emotional excitement and foreign policy objectives. When little force tion to passage of War Powers legislation163 public concern over the missile threat. was needed (e.g., in our incursions in Latin Secretary of State William P. Rogers cau- One can easily suppose in the setting of America), little was used;, when larger com- tioned those who might conceive of the War the time-with enemy missiles being aimed mitments were necessary, they too were Powers legislation as serving the end of peace at cities holding 80 million American citizens, forthcoming. Whatever the intention of the by saying: "Moreover, requiring prior con- with reports arriving of attacks on American framers, the military machine has become gressional authorization for deployment of reconnaissance planes, and with the killing simply an instrument for the achievement of forces can deprive the President of a val- of an American pilot over Cuba 166-that a foreign policy goals, which, in turn, have be- uable Instrument of diplomacy which is used majority in Congress with one eye on elec- come a central responsibility of the presi- most often to calm a crisis rather than en- tions only weeks away, would have favored dency x36 flame it." 164 legislation directing an all-out bombardment Further, the author believes Professor Mon- To which he added: of Cuba or even an invasion. aghan is correct in telling us that "history "There is another consideration. To cir- As Senator Goldwater observed: "Those has legitimited the practice of presidential cumscribe presidential ability to act in emer- who look to Congress as the ultimate haven war-making." 140 In Monaghan's words, "A gency situations--or even to appear to of peaceful thinking might thumb through practice so deeply embedded in our govern- weaken it-would run the grave risk of mis- the pages of Robert Kennedy's short manu- mental tr t h ld b t e s uc ure s ou e reat d as decisive calculation by a potential enemy regarding of the Constitutional issue." 141 the ability of the United States to act in a With this historical record in back of us, crisis. This might embolden such a nation the principle laid down by the Supreme Court to provoke crises or take other actions which in Midwest Oil 142 gains added relevance. Here undermine international peace and secu- the Court had announced "that in deter- rity." as mining the meaning of a statute or the Professor James MacGregor Burns, the re- existence of a power, weight shall be given to cipient of a Pulitzer Prize for his skills as the usage itself-even when the validity of a ' political historian, has gone further. He the practice is the subject of investiga- has testified that any legislation which would tion." 143 encumber the President's ability to respond Certainly, the deployment of forces abroad and adjust to changing world situations as on the initiative of the President alone is a he determines proper will remove the one "long-continued practice" extending back- essential ingredient preventing World War ward far longer than the usage found to be III-flexibility.166 Dr. Burns warned that im- valid in the Midwest Oil case.'" Furthermore, posing artificial restrictions on Executive Congress has known of and acquiesced in the discretion "may not lead to peace but to war, President's usage for nearly a century and a as foreign adversaries estimate that the half now, part of the time arguably in the United States will not respond to a threat face of a limiting Congressional statutel4b to world peace because of legislative restric- One instance when it is clear the President tions on the executive." 157 violated the terms of a Congressional statute The fear expressed by Dr. Burns was re- attempting to govern his power to deploy cently taken up by former Under Secretary of troops abroad is the experience of the na- State George W. Ball, who is credited with tion under the Selective Service Act of being a dove in the high ranks of the John- 1940.146 The law expressly provided that no son Administration, Mr. Ball reminds us that draftees were to be employed beyond the the Neutrality Acts adopted in the aftermath limits of the Western Hemisphere except in of World War I "very probably" impeded the territories and possessions of the United United States from taking firm steps which States.'' would have averted World War 11.156 This Notwithstanding the Congressional pro- illustration leads Mr. Ball to ask how does hibition, President Roosevelt deployed our one draft a statute that will make it possi- troops, including draftees, to occupy Ice- ble for Congress to play a role "in shaping land and Greenland several months before fundamental decisions that may lead to war World War II had been declared148 Iceland, without inhibiting the President in doing however, is over 2,300 miles away from the whatever is necessary" to avert some future closest point in the United States and is catastrophe parallel to World War II.16o invariably placed in the section on Europe Senator Barry Goldwater sounded the same in any prominent world atlas. If nothing alarm in his appearance before the War more, the incident shows Presidents will Powers hearings. He charged the legislation ignore Congressional limitations when they "will undermine the credibility of our most believe vital American interests are undeni- basic defense agreements such as NATO. ably at stake-.119 With one swipe, our 42 defense pacts will be IV. POLICY CONSIDERATIONS chopped into 30-day wonders, if that." loo Regardless of the legality or illegality of the War Powers legislation, are the measures wise or proper from a practical standpoint? Can any Member of Congress, or Congress collectively, foresee all contingencies that may arise in the future? Might the War Powers legislation unwittingly turn the tables on its sponsors by exciting a situation or pushing a reluctant President into broader action than he wishes? A partial answer might be evident from the fact that many of the same authorities who have testified in favor of the general concept of War Powers legislation nevertheless have uttered grave concerns about the wisdom of these meas- ures in practice. For example, McGeorge Bundy warned "no single rule is likely to meet all our needs, and in particular I think it is dangerous to try to deal with the future by legislating against the past." 160 Alexander Bickel has confessed: "Codification seems to me difficult, heavily prone' to error, quite possibly dangerous, and unnecessary," 161 William D. Rogers remarked: Senator Goldwater argued: "Thereby, the proposed bill will place all our treaty obliga- tions in a state of permanent doubt. No ally can ever know if the United States will stand by it for more than 30 days; and even then, it cannot be certain whether Congress will shut off our aid sooner." 161 But there is another side to the coin. If Congress has the right to legislate concerning the rules of war as is argued by the sponsors of War Powers leg- islation; 02 Congress also possesses the power to order-the President into broader hostilities than he wishes. This development could ac- tually occur under a provision of these bills in their present form which establishes a procedure for expedited consideration by Congress of legislation designed to sustain hostilities beyond 30 days 163 The danger can be tested against actual history. For example, if the War Power leg- islation had been in effect at the time of the script on the Cuban Missile Crises." 100 In this book, the late Senator Kennedy recounts that of all the deliberations which preceded his brother's broadcast to the nation on the crisis, his session with the leaders of Con- gress "was the most difficult. meeting." 107 According to Robert Kennedy: "Many Congressional leaders were sharp in their criticism. They felt the President should take more forceful action, a military attack or invasion, and that the blockade was far too weak a response. Senator Richard B. Russell of Georgia said he could not live with himself if he did not say in the strong- est possible terms how important it was that we act with greater strength than the Presi- dent was contemplating. "Senator J. William Fulbright of Arkansas also strongly advised military action rather than such a weak step as the blockade." 168 In light of this illustration, Senator Gold- water asks: "Is it not possible Congress might, when confronted with dramatic pres- sure for making an immediate decision, vote in favor of a military strike? Are the Mem- bers of Congress more immune to emotional, impulsive reactions than other humans?" 189 In the event Congress should decide to steer our nation into expanded hostilities, the authors of War Powers legislation would leave the President no exit. Their whole argu- ment for the power of Congress to pass such legislation is equarely based upon the prop- osition that Congress controls the War Powers and that the President must faith- fully carry out the directives enacted by Con- gress170 According to the brief offered by Senator Javits, "the President has no right to contravene such legislation." 171 There is another problem. What about the ability of the President to respond to specific, sudden emergencies? Is the assurance of Irving Brant correct that the War Powers legislation "does not interfere in the least with the handling of .any emergency, from minor property damage to nuclear holo- caust?" 172 Perhaps reference to some actual situations will provide an answer. Oddly enough, the proposal introduced by a Senator from New York, himself Jewish, as well as the other War Powers legislation, would prohibit the United States from acting to defend the state of Israel. This result occurs because under the Javits bill, the President may act to com- ply with a national commitment only if the commitment results exclusively from a "leg- islative instrumentality specifically intended to give effect to such a commitment. ..." 173 But this country has no legislative com- mitment to defend the security of Israel. There is no treaty or convention or resolution authorizing the United States to assist in preserving Israel's independence174 Senator Goldwater has set the scene: CV ban missile crisis,'" Congress would have "No matter that Arab fanatics may be been required to act swiftly, on the matter seeking to make good on their aim of shoving of continuing the deployment of forces in the Israelis into the sea. No matter that ap- the Caribbean once the 30-day period pos- proximately 20,000 Soviet personnel may be sibly allowed by the legislation had expired. manning SA-3 missile sites and advanced jet Under the telescoped parliamentary proced- fighters while massive Egyptian tank forces Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14170 Approved For CORelease NGRESSIONAL RECORD 75$Q~,000700090010-~uly? 20, 1973 mount an invasion on disputed Sinai terrl- been aation by the Congress without alert- that he can deploy fleets, land troops, order tory. . . Regardless of the humanitarian ing the: Simbas as to what was up; the re- airlifts, or conduct battles in order to protect exigencies and the dire consequences on sult would almost certainly have been the or rescue United States citizens and officials, European security, the War Powers Bill pro- summary execution of American Consular together with their propertg200 It is equally hibits an immediate response by the United officers and a considerable number of Amer- obvious he can employ the military forces States to forestall an Arab conquest of Is- ican citizens?s* against an outside enemy who attacks U.aited rael." 176 As conpelling as the humanitarian inter- States territory or poses an imminent threat Senator Goldwater has addect ests are in the Congo situation, it is doubt- of such an attackl3 "Oh yes, we might rush in Air Force trans- ful the joint rescue mission would have been The author believes any legislation which port planes to whisk our own Citizens out of permitted under the rigid lines set by the seeks to lay down rules restricting ill ad- danger. We might even send a.pontingent of War Powers legislation. Insofar as the mili- vance the President's ability to use nilitary marines into cities where our grnbassies and tary operation affected 97% of the persons forces in these circumstances is illegal The legations are located to aid them. evacuated, it would not have been legal un- Constitution does not allow Congress to pro- "But when our forces are called upon to der theise proposals because the individuals hibit the President from acting in these de- act for broader purposes-for reasons of vital were not United States citizensl?6 Of course, fensive situations; nor does it permit Con- strategic interests such as saving another na- if the proposals could be construed broadly gress to impose statutory limitations oa the Lion's people from annihilation-the war enough to permit the President to employ period of time during which the President powers bill will halt our forces short. This troops in another country under the guise may act in these conditions. To this extent, would be carrying out a national commit- of protecting Americans abroad, even though the War Powers legislation is clearly Uiicon- ment " 146 the main purpose or result reaches far be- stitutional 162 Nor is the scenario described by Senator yond that end, the President can initiate The President possesses authority which Goldwater an implausible one. The United the use of force in nearly every conceivable stretches far beyond that of making an ad States has already Intervened once in the situation without running afoul of the pro- hoc, limited response to an emergency sphere Arab-Israeli crisis in a way that would be posals.Today United States citizens can be there is a widely recognized and immediate specifically curbed under, any of the pending found in every nation of the world, includ- threat to the safety of United States citizens War Powers leglslation177 This incident oc- ing Communist China, a fact which would or the intergity of United States territory, curred in June of 1967, during the six-day enable the President to employ force abroad - Whenever the President, as the primary au- Middle East war, after President Johnson at any, place he determines necessary under thor for 'foreign policy and the exclusive had heard over the hotline that Russia "had the excuse of protecting our citizens. Commander in Chief of United States forces reached a decision that they were prepared This, discussion should not be concluded determines there is a future danger to the to do what was necessary, including using without referring to a fundamental question ultimate preservation of the United Mates the military" to stop the advance of Israeli posed by some critics of Presidential inita- and its citizens which is highly probable of troops into Arab territory 1'B tives. The flavor is Caught in the statement arising either as a direct or indirect result of As President Johnson understood it at the by Henry Steele Commager who claims that, a present crisis, he may commit United States time "unless the Israelis halt operations with the exception of the Civil War and per- forces on his own authority in any Way he within the next five hours the Soviets will haps the Korean war: deems fit for the purpose of defending the take necessary action, including mili- "[T]here are no instances in our history future security of this country and its two tary ...." In response President Johnson where the use of war making powers by the hundred and ten million citizens193 reports he ordered the U.S. 6th Fleet to move Executive without authority of Congress was In the highly complex, interrelated society to within 50 miles off the Syrian coast as "a clearly', and incontrovertibly required by the of the Twentieth Century, Where the s:'zdden sign that the Soviet Union would have to nature: of the emergency which the nation domination of an ocean strait, or control of deal with us." 170 faced but that on the contrary in almost a critical resource, or deployment of a radi- Though the preceding illustration refers every Instance the long run interests of the cally new weapon, might install an aggres- solely to Israel, the identical problem exists nation, would have been better promoted by sive nation in a position of exclusive supe- under the Javits bill in the case of any other consultation and delay186 riority from which it might dictate terms to country with which the United States has it is difficult to answer matters of sub- all other countries, the Eighteenth CEtntury no national commitment sanctified by action jective judgment. But we know of one in- concept of repelling "sudden attacks" must of Congress. stance, in which Secretary Rusk believes be broadened to encompass defense against Another situation in which' the President "consultation and delay" would have led to threats which are probable of becoming ir- would be barred from taking independent the massacre of some 2,000 human beings] removable once allowed to develop uachal- action under most, if not all, of the Wei' Would these persons and their families con- lenged out of present moves. The crucial test Powers legislation is the deployment of troops elude the use of military forces was not in the modern world has to be whether the or equipment to back up United States for- clearly, required? damaging consequences to United Sta;es se- eign policy objectives -in times, of great crises, If you will ask the citizens of the South- curity are equally grave and equally lil:eiy to such as the recurrent Communist pressures west Whether they think it was necessary for happen in the natural flowof events as the on free Berlin 180 In this connection, the De- President Tyler and Polk to deploy Amer- ,sudden attack" which the Framers of the partment of the Navy has compiled a list scan troops in Mexican territory to protect Constitution comprehended in their personal of what it calls 65 "wars/near wars" since the people of what was then the independ- experience. 1946, in which naval units were involved, ant Republic of Texas and what is now the It is strange indeed that many of th+: same alerted, or redeployed181 All of these move- State of Texas, . you might get a pretty political liberals who make highly moving ments at the initiative of the President would vocal and unanimous reply to the question, appeals for expanding the scope of _:'ederal be prohibited under the War Powers legisla- Or if you will consider the stakes riding on jurisdiction and obligation on behalf of tion to the extent that they back up a na- a swift American response to Russian brink- urban relief, hyphenated-Americans, and tional commitment to a foreign country, with manship during the Cuban missile crisis, other social-welfare causes, deny their own the single exception -of commitments spe- when inaction would have left the United preachments about a "living Constitution" cifically dependent upon a treaty or con- States impotent to remove missiles which when it comes to the President's ability to vention which could be implemented for $0 were being aimed at American cities holding defend America's freedoms. Their unbending days under the Javits bill alone 162 80 million citizens,'% most would agree "sec- reliance upon brief debates at the Co:istitu- One more example, pinpointing a need for ond-thoughts" would have made a terrible tional Convention as conveying the final broad Executive discretion, is-the 1964 Congo difference to the well-being of these 80 mil- meaning of the clause "to declared War" rescue effort which saved 2,000 persons, in- lion citizens. marks these commentators as the "strict cluding about 60 Americans, who were being The truth is that we just cannot predict constructionists" of all tih1e1A4 held hostage by Congolese rebelslx? Former The advocates of War Powers legislation Secretary of State Rusk has described the what chain of events might have been in- have, in general, allowed their repuisfon over these incident stituted if we had failed to act in each of the tragediy of Vietnam to misguide them these 192 military incidents. To study them into a strained and rigid interpreta,;ion of "On one occasion, a large number of Euro- under a microscope might be worthwhile for the Constitution which is both wrong and peans, including the staff of the American a scholar located in an ivy-covered class- Consulate and other American private citi- room,- but for a President, faced with 20th unrealistic. Weaving through almost all e zens, were being held as hostages by a savage Century reality,, even a week's delay might testimony in support of -War Powers notsla tion is group in the Eastern Congo called Simbas. see the overrun of an important friendly na- 'another r V theme that there must t not be Private negotiations with the Simbas over a tion or the rise of an irremovable threat to Vietnam." 195 In fact, when Senator pening Javits introduced his bill, his cpening hostages. Threats of execution and brutal torture- mounted. We and the Belgians decid- ed (with the -approval of the government of the Congo) to drop Belgian paratroopers into the area by American aircraft in order to rescue these hostages who Were in a truly desperate situation. There could not have V. CONCLUSION The verdict of history, reinforced by occa- sional judicial pronouncements, convinces the author that the President possesses a broad authority of independent initiative over the use of military force outside the United States. It is settled beyond question under both domestic and international. law, sentence declared: "[T]he most compelling lesson of the 1960's for the United Bates Is our need to devise procedures to prevent future undeclared Wars as in Vietnam 15 The ironical error about using Vietnam as the reason for curbing Presidential initia- tives is that Congress itself has been deeply involved with expansion of the Vietnam conflict each step of the way. 197 Senator Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE S 14171 Goldwater has documented at least 24 acts of Congress supporting our continued pres- ence in Vietnam, both before and after the much discussed Gulf of Tonkin Resolution 198 This view has received judicial verifica- tion as well. The U.S. Court of Appeals for the Second Circuit ruled on April 20, 1971, that: "The Congress and the Executive have taken mutual and joint action in the pros- ecution and support of military operations in Southeast Asia from the beginning of those operations." 10B In concluding, the author does not wish to leave the impression he believes Congress and the public are helpless to influnce deci- sions on current and prospective foreign military policies. For one thing, a free press admonishing and criticizing the policy of an Executive or the Congress can mobilize public opinion In sufficient strength to chknge the course of action. Vietnam shows us that much. . For another, Congress can refuse to raise an Armed Force of the size an "activist" President requires to intervene at several points across the globe. As a foreshadow of events to come, the 92nd Congress has for the first time set an annual numerical ceil- ing on the total authorized active duty strength levels of each of the regular forces.211 Next, Congress can and must make indi- vidual determinations about specific mili- tary actions as they develop every time it votes on appropriations to continue these actions201 In this manner, Congress will be making its decision in the setting of the precise emergency or problem at hand. It will not be trying to erect rules for every kind of predictable and unpredictable event to come in the long-range future, but will be dealing with known facts and a specific re- quest for a certain number of dollars or a certain number of helicopters, fighter air- craft, or other weapons?62 Finally, both Congress and the President can adhere to the Constitutional expectation that the two political branches of our gov- ernment must spend an enormous amount of time working with each other to avoid the possibility of an Impasse at moments of crisis. The Secretary of State, Secretary of Defense, and other ranking decision- makers in each administration must be will- ing to meet with committees and subcom- mittees of Congress hundreds of times if necessary trying to work together. For its part, Congress must have the sense of mind and political courage to shape a recognizable position from which the Presi- dent can be guided. This means the perti- nent committees must develop an almost unanimous view on important issues, so that the President can clearly know the position of the Senate, or the House, as a corporate body, rather than having to choose from among the individual points of view of a hundred or so different members. Thereby, the two branches could better move in uni- son according to the true anticipation of our Founding Fathers. FOOTNOTES The Senate alone has spent parts of 61 days of Floor debate on issues affecting the President's war making machinery in the first 143 legislative days of the 92nd Congress. These deliberations centered primarily around H.R. 6531, the Military Draft Exten- sion Bill (45 days), and H.R. 8687, the Mili- tary Procurement Authorization Act (13 days). 2 See S. 731, S. 1880, S.J. Res. 18, S.J. Res. 59, and S.J. Res. 95, and 92d Congress, let Sess. (1971). But of. H.J. Res, 1, 92d Cong., 1st Sess., passed by the House of Representa- tives on August 2, 1971, in which "Congress reaffirms its powers 'under the Constitution to declare war," without specifying any rules for the conduct of military hostilities. 8 Mr. Davits has Introduced S. 731 for him- self, Mr. Bayh, Mr. Mathias, Mr. Packwood, Mr. Pell, Mr. Spong, Mr. Weicker and Mr. Williams. Mr. Bentsen has introduced S. 1880 for himself and Mr. Byrd of W. Va. Mr. Taft has introduced S.J. Res. 18. Mr. Eagleton has introduced S.J. Res. 59 for himself, Mr. Inouye, Mr. McGovern, Mr. Montoya, and Mr. Stevenson. Mr. Stennis has introduced S.T. Has. 95 for himself, Mr. Mansfield, and Mr. Roth. On December 6, 1971, after this article was submitted, Senators Javits, Stennis, Eagleton, and Spong agreed to introduce a comprehensive redraft of S. 731, The sub- stantive provisions of this bill, S. 2956, are essentially the same as those in S. 731, with the addition of language borrowed from S.J. Res. 59- providing that authority to use the Armed Forces shall not be inferred from a treaty or appropriation act. S. 2956 was ordered favorably reported by the Senate Committee on Foreign Relations the next day, December 7. 6 S. 731, supra note 2, at 1, lines 3-5. 6 Id. at 1-2, lines 7-13. 1Id. at 2, paragraph B, ? 1. 6 Id, at 2, paragraph C, ? 1, o Id, at 2-3, paragraph D, ? 1, 10 Id. at 1-2, paragraph A, ? 1. 11 Id. at 3, ? s. 12 Id. at 4, ? 3. 13 S.J. Res. 59, supra note 2, pp. 4-5, ? 3. 14 Id. at 2-3, ? 1. 15 Id. at 3, lines 9-12, ? 2 (emphasis added). 16 Id. at 6-7, ? 6. 17 Id. beginning at line 25, p. 6, and ending on line 2, p. 7. 18 Id. at 7, lines 2-6. to Id. at 7, lines 6-11. 20. Id. beginning at line 12, p. 3, and ending on line 7, p. 4, ? 2. 21 Id. at 5, lines 13-19, ? 4. W See note 7, supra. 23. S.J. Res. 95, supra note 2, at 2, paragraph B,?2. 2 Id. at 5-6, ? 7. 25 See S.J. Res. 59, note 16 supra. 20 See S.J. Res. 59, note 14 supra. 27 See S.J. Res. 59, note 20 supra. 20 S.J. Res. 95, supra note 2, at p. 5, ? 6. S.J. Res. 59, supra note 2, at p. 7, ? 7, Nor would the fresh hostility be covered by S. 731. See note 12 supra. 30 Supra note 2. 91 See text accompanying note 16 to note 29 supra. 32. S.J. Res. 18, supra note 2, at 2-3, para- graph 1-4, Part I. And see note 10 supra. 21 01. S. 731, supra note 8. a4 Of. S. 731, supra note 11. 35 S.J. Res. 18, supra note 2, at 2, line 10, Part I. - 06 S. 731 refers only to "military hostilities" and does not specify whether a purpose of combat is necessary to constitute a hostility. See text accompanying note 5 to note 12 supra. But of. remarks of Senator Javits when he introduced his bill In which he refers to "combat hostilities" and "combat actions." 117 Cong. Rec. (daily ed.) S1204-S1206 (Feb. 10, 1971). 37 Of. S. 731, supra note 12. 38 S.J. Res. 18, supra note 2, at 3-4, Part TI. 39 See text accompanying note 5 to note 39 supra, note 40 infra. 40 Id. 41 See A Brief on S. 731, to Make Rules Re- specting Military Hostilities in the Absence of a Declaration of War, 117 Cong. Rec. (daily ed.) at 52527-S2531 (March 5, 1971), and see Javits, supra note 36. 42 Brief, supra note 41, at S. 2523. 4s Id. 44 Id. 45 Id. See also Javits, supra note 36, at S. 1205-S 1206. 46 See exhibit 1, Javits, supra note 36, at S 1206. But of. view of Professor John Norton Moore that "reliance on the experience un- der the Articles of Confederation seems a frail reed for Interpreting a Constitution pro- mulgated in large measure as a result of dis- satisfaction with the experience under the Articles. Hearings on War Powers Bill Be- fore the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. (1971), testimony of Professor Moore Inserted in the Cong. Rec. by Senator Goldwater, 117 Cong. Rec. (daily ed.) S6469 (May 10, 1971). Moore's position applies with equal force to the Continental Congress. 47 Brief, supra note 41, at S 2539. The tex- tual arguments of the Javits brief are remi- niscent of the battle Jefferson and Randolph lost to Washington and Hamilton over the power of the President to "declare" on "the question of war or peace." When President Washington boldly issued a proclamation of neutrality on April 22, 1793, during the out- break of war between France and Great Brit- ain, it was a clear defeat for the position argued by Jefferson that only Congress could proclaim neutrality. To Jefferson, since Con- gress alone had the power to declare war, it alone had the power to declare we were not at war. Washington's - rejection of Jefferson's narrow reasoning is generally credited with establishing early the principle of Presi- dential primacy in the making of foreign policy. See C. ROSSITER, ALEXANDER HAMILTON AND TILE CONSTITUTION 84-85 (1964). 81 Hearings, supra note 46. See testimony of Professor Richard B. Morris inserted in the Cong. Rec. by Senator Javits, 117 Cong. Rec. (daily ed.) S3359 (March 16, 1971). And see testimony of Professor Henry Steele Com- mager inserted in the Cong. Rec. by Senator Javits, 117 Cong. Rec. (daily ed.) 53353- 53354. See generally Note, Congress, the Pres- ident and the Power to Commit Forces to Combat, 81 HART. L. REv. 1771 (1968). 49 Wright, The Power of the Executive to Use Military Forces Abroad, 10 VA. J. INT'L, 54 (1969). 60 Wright took the same position in 1920. See Wright, Validity of the Proposed Reser- vations to the Peace Treaty, 20 COL. L. REv. 134-36 (1920).. 513 W. WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES, 1567 (2d ed. 1929). 52 E. CORWIN, CONSTITUTION ANNOTATED (1952). 53 Another well-known constitutional au- thority states the President "possesses the organizational authority to resort to the use of force to protect American rights and in- terests abroad and to fulfill the commitments of the nation under international agree- ments." B. SCHWARTZ, COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES, Part I, Vol. II at 196 (1963). 51 Corwin, Who has the Power to Make War?, N.Y. Times, July 31, 1949 at 14 (Maga- zine). 65 Hearings, supra note 46. See testimony of Moore at S6469-S6470; testimony of Secre- tary of State William P. Rogers inserted in the bong. Rec. by Senator Goldwater, 117 Cong. Rec. (daily ed.) S7196-S7201 (May 18, 1971); and testimony of the Honorable George W. Ball Inserted in the Cong. Rec. by Senator Goldwater, 117 Cong. Rec. (daily ed.) 512619- 512621 July 30, 1971). Other recent statement recognizing full plenary power in the President to conduct military operations are: remarks by Solicitor General Erwin N. Griswold Inserted in the Cong. Rec. by Senator Goldwater, 117 Cong. Rec. (daily ed.) 512967-512969 (Aug. 3, 1971); Eberhard P. Deutsch, The President as Commander in Chief, 57 ABA J. 27-32 (Jan. 1971); Henry M. Pachter, Reflections of Uni- lateral Intervention, prepared for Foreign Military Commitments, FORENSIC Q., 135-38 (May 1969) ; and Congress, the President, and the War Powers, Uearings Before the Sub- comm. on National Securtiy Policy and Sci- entific Developments of the House Commit- tee on Foreign Affairs, 91st Cong. 2d Sess. (Comm, Print 1970), testimony of Dr. W. T. Mallison at 30-39, testimony of Professor Abram Chayes at 135-38, and testimony of William H. Rehnquist at 210-16, 232, and 235. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14172 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20, 1973 %Spong, Can Balance be. Restored in the Constitutional War Powers of the President and Congress?, 6 U. RICH L. REV., at 27 (1971). s7 See Brief, supra note 41, at 82529-52530. See Appendix "A," infra, at 88. 4 U.S. (4 Dallas) 36 (1800). 00 Id. at 39-45. ?1 Also cited as The Amelia, 5 U.S. (1Cr.) 1 (1801). Id. at 28. 83Also cited as Little V. Barreme, 6 U.S. (2 Cr.) 170 (1804). ?4 Id. at 179. In fact, there never has been any Supreme Court holding in time of war which shackled the President's ability to use the forces at his disposal to carry on that hostility. See Ratner, The Coordinated War- making Power-Legislative, Executive, and Judicial Roles, 44 So. UAL. L. REV. at 486 (1971). 9? See Moore, supra note- 46, at S. 648$. And see U.S. Coast., Art, I, ? 8. - 00 See Rogers, supra note 55 at n.45, S 7201. " Spong, supra note 56, at 27. The Supreme Court has consistently refused to tackle cases directly challenging the legality of Presiden- tial military decisions during an on-going war. For example, the Court has turned away every request for a decision on the validity of the Vietnam conflict that has been made of it. See Berk v. Laird, 443 P. 2d 1039 (1971) ; cert. denied 40 U.S.L.W. 3186 (Oct. 11, 1971): Massachusetts v. Laird, motion for leave to file complaint denied, 400 U.S. 886 (1970); Mora v. McNamara, cert. denied, 389 U.S. 934 (1967), Luftig v. McNaIIiara, cert. denied, 387 U.S. 945 (1967); and Mitchell v. United States, cert. denied, 386 V.S. 972 (1967). There are earlier cases which indicate the Supreme Court will not consider issues aris- ing out of any statute purporting to regulate the President's deployment of troops. In Mississippi v. Johnson the Court held it had no power to restrain acts of either Congress or the President regarding the use of troops. 71 U.S. 475 (1866). Some half century later the Court held that the propriety of what may be done in the exercise of the power to conduct foreign relations "is not subject to Judicial inquiry or decision." Oetjen v. Cen- tral Leather Co., 246 U.S. 207, 802 (1918). Then in 1950, the Court stated: "Certainly it is not the function of the Ju- diciary to entertain private litigation-even by a citizen-which challenges the legality, the wisdom, or the propriety of the Coln mander-in-Chief in sending our armed forces abroad or to any particular region . The Issue tendered . involves a challenge to conduct of diplomatic and foreign affairs, for which the President is exclusively re- sponsible." Johnson v. Eisentrager, 3'39 U.S. 763, 789 (1950). Two recent articles which conclude the Court will not entertain the issue of the President's war-making authority are (1) Note, The Supreme Court as Arbitrator in the Conflict Between Presidential and Congres- sional War-Making Powers, 50 BOSTON U. L. REv. 78 (1970), and (2) Undeclared War and the Right of Servicemen to_ Refuse Service Abroad, 10-16, Legislative Reference Service, Library of Congress (Nov. 30, 1970). But of. Tigar, Judicial Power, The 'Political Question Doctrine,' and Foreign Relations, 17 U.C.L.A. L. REV. 1135 (1.970). In light of the probable application of the "political question" doctrine to the war pow- ers legislation, Senator Goldwater has charged: "(lit may incite one of the gravest Constitutional crises in American history." Testimony of Senator Goldwater before Hear- ings on War Powers Bills, supra note 46, in- serted in 117 Cong. Rec. (daily ed.) 85637- S5647 (April 26, 1971) at S5637. es 67 U.S. (2 Black) 635 (1863). 00 See Brief, supra note 41, at 52529. 41, Prize cases, 67 U.S. (2 Black) 636, 671 (1863). TI Id. at 668. 72 Professor Schwartz claims: "The lan- guage of the high Court in the Prize Cases 14 broad enough to empower the President to dp much more than merely parry a blow al- ready struck against the nation. Properly construed, in truth, it constitutes juristic i*stification of the many instances in our history (ranging from Jefferson's dispatch of a 'naval squadron to the Barbary Coast to the 1482 blockage of Cuba) in which the Preel- dent has ordered belligerent measures abroad without a state of war having been declared b' Congress." B. SCHWARTZ, THE REINS OF POWER at 98 (1963). And see text acaompany- ing note 114 to note 149 infra. 73 71 U.S. (4 Wall.) 2 (1866). 74 in, at 139. 75 See Brief, supra note 41, at S 2530. 7a 236 U.S. 459 (1915). '7 Id, at 466-67. T3 Id. at 460-70, 474, t9 See text accompanying note 142 to note 149 infra. 80 Youngstown Sheet & Tube Co. v. Sawyer, 34$ U.S. 579 (1952). 811d, at 587. az Id. at 645. See Rogers, supra note 55, at S 7198. New York Times Co. v. United States, 403 U.S. 713 (1971). et Id. at 722. ah See text accompanying note 49 to note 56 supra pp. 8-9. And see note 55 supra. ~t E. CORWIN, PRESIDENT: OFFICE AND Pow- ERA 220 (3d rev. ed. 1948). 84 See text accompanying note 96 to note 100 infra. 80 See text accompanying note 101 to note 109 infra. 9~ See text accompanying note 110 to note 113i1infra. 91 U.S. CONST., Art. II, ? 1. 'Griswold, supra note 65, at S 12968. 03 See CORWIN, supra note 87, at 217-20. KCited in CoRWIN, supra note 87, at 218. WANNALS, 6th Cong., col. 613 (1800). New York Times Co. v United States, 403 U.S 713 (1971) supra note 84, at 756. And see 'separate dissent by Justice Blackmun at 761. B7 Id. at 741. 9s Id. at 741-42, 756. ? t99 U.S. 304 (1936). 100!Id. at 319-20. 101Wright, supra note 50, at 134-35. And see In re Neagle, 135 U.S. 1, 64 (1889), cited by Wright in discussion. 102'IE. Coawsa, supra note 87, at 240-41. 1?3!Corwin has also written: But the President may also make himself the direct administrator of the international rights and duties of the United States, or of whafj are adjudged by him to be such, with- out awaiting action either by the treaty- mak$[Ig power or by Congress, or by the courts. Id. at 239. W.I Willoughby observed: It Is also to be noted that the powers con- stitutionally vested in thePresident with re- gard',to the control of the foreign relations of the United States makes It possible for him to bring about a situation In which, as a pructinal proposition, there is little option left to Congress as to whether it will or will not declare war or recognize a state of war as existing. W. WILLouasSY, supra note 51, at 15 8. 104 ee Q. WRIGHT, THE CONTROL OF A22ERI- CAN 1.REIGN RELATIONS 306 (1922); Durand v. Hollins, 8 F. Cass. 111 (4 Blatch 451, CCSI3 NY 1460). 100 Durand v. Hollins at 454, 100 See The Slaughter-House Cases, 83 U.S. 36, 79 (1872) . 197 U.S. CONST. amend. XIV. 1. J' CLARE., RIGHT TO PROTECT CI'TIZENS IN FOREIGN COUNTRIES BY LANDING FORCES, 25 (3d re. ed. with supp. appendix up to 1933: 1934).! 194 See Q. WRIGHT, supra note 104. at 307; Spong, supra note 56, at 24; Moore, The Law- fulness of Military Assistance to the Republic of Viet-Nam, The Vietnam War and Interna- tional Law; AM. Soc'y es LNT'L L. 137 (1968) ; id. at 583-603; Memorandum by U.S, Dept. of State, The Legality of United Sta'cs Partici- pation in the Defense of Viet-Nam, (March 4, 1966); B. SCHWARTZ, supra note 72, at 175. 119 U.S. CowsT. art. II, ? 2, cls. 1. 111 Q. WRIGHT, supra note 50, at 134; W. WILLOUGHDY, note 51 supra, at 15f 7. 312 Ex parts Milligan, 71 U.S, (4 Wall) 2 at 139. See also holding by Court of Claims that "In time of war, the Commander in Chief has the same powers as other civilized gov- ernments, and the exercise of them needed no ratification to give them effective force." The Court was speaking of the undeclared war in the Philippines. Warner, Barnes and Co. v. United States, 40 Ct. Cl. 1, 32 (1904). 113 Swaim v. United States, 28 Ct. Cl. 173, 221, aff'd 165 U.S, 553 (1897), 114 J. ROGERS, WORLD POLICING AND THE CON- STITUTION 55 (1946). m Id, at56. 119 E. CORWIN, supra note 54, at 14. 117 See it. DUPUT AND W. BAUMER, THE LIT- TLE WARS OF Tae UNITED STATES Preface (1968). 115 See, e.g., Comma er, supra note 48, principally at S 3355, and Morris, sapra note 48, at S 3359. 119 See Goldwater, supra note 67, at S 5637. 120 See appendix A infra. 121 Other Itemized lists of U.S. military op- erations abroad are., J. CLASS, to pro note 108, at 51-130 (78 incidents without; declara- tions of war and not later disavowed or re- pudiated); J. Roams, supra note 114, at 93-- 123 (189 such incidents) ; State, i n fro ap- pendix A at 36 (135 such incidents); and Legislative Reference Service, Libras l of Con- gress, Background Information on t;se Use of United States Armed Forces in Foreign Coun- tries (1970 Revision) at 50-57 (152 such in- cidents). 132 See appendix A infra, note 3 at 110, 122 Reveley, Presidential. War-Maki: Ig; Con- stitutional Prerogative or Usurpation?, 55 VA. L. REV. 1258 (1969). 124Malawer, The Vietnam War U;ader the Constitution: Legal Issues Involved in the United States Military Involvement in Viet- iaam., 31 U. PITT. L, REV. 213 (1969). 12G See Commager, supra note 48, a; S 3356. 130 See appendix F infra at 116. 127 Id. 1 See appendix 13 infra, at 114. 199 See appendix E infra at 115. 130 See appendix G infra at 117. "'See appendix C infra at 112. 733 See Commander, supra note 48, at $3355. 733 See appendix A infra at 92, 134 Id. at 98. 136 id. at 102. lag Id at 103. See R DUPtrY AND W. 13AUMER, supra note 117 at 168. 1a7 Appendix A infra at 104. 139 Id. generally. 149 Monaghan, Presidential War-Making, 50 BOSTON U.I. REv. 27 (1970). 14old.at29. 141 Id. at 31. See generally Griswold, supra note 55. 142 United States v Midwest Oil Co., 236 U.S.459 (1915). 143 Id. at 473. 141 Presidents had issued orders withdraw- ing public lands from private acquisition over a period of 80 years. Id. at 469. I:i com- parison, Presidents have been sending troops abroad on their own initiative for mote than a century and a half. See appendix A :infra generally. 141 The statute reads in pertinent part: "Prom and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as f. posse comitatus, or- otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such eraploy- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 26, ,1973Approved For 00S0i/iM 74ESU IJ D00700090010-9 meant of said force may be expressly author- ized by the Constitution or by act of Con- gress . . ." (Emphasis added.) H. R. 4867, approved June 18, 1878, ? 15 (45th Cong.) 20 Stat. 152. It is true the law was aimed primarily at the use of troops in suppressing domestic violence or insurrection,. but on its face it extends to all use of the Army, without any geographical limitation, for the purpose of executing the laws. As we have seen, the President's right to execute the laws includes a power to enforce international obligations as well as domestic laws. See discussion ac- companying notes 101 to 104, supra. Furthermore, it was evident to Congress the law it was debating would be applicable to circumstances much broader than the posse comitatus situation described in the act. Members of both Houses indicated their awareness of the provision's reach to situa- tions involving the employment of troops against foreign dangers. See remarks of Sena- tor Matthews where he speaks of "foreign wars" 7 Cong. Rec. 4297 (1878) and remarks of Senator Hoar, id. at 4303. One proposed amendment, introduced and defeated during floor debate in the House of Representatives, would have exempted from the law the use of forces "on the Mexican border or in the ex- ecution of the neutrality laws elsewhere on the national boundary lines." Id. at 3849. In these circumstances and in view of the broad language of the statute, the author be- lieves it can reasonably be interpreted as purporting to limit the. use of the Army in the international theater as well as the do- mestic one. Thereby the doctrine of consti- tutional interpretation announced in Mid- west Oil would squarely provide additional support buttressing the legality of the Presi= dent's use of troops abroad. Section 15 of H. R. 4867 was repealed in 1956 and restated in broader form as the new section 1385 of title 18, U.S.C. (70 A Stat. 626). 14? 54 Stat. 885. 147 Id. ? 3 (e) , at 886. Congressional debate on the 1940 Selective Service law shows that when Congress referred to the "Western Hemisphere" it definitely meant only that area of North, Central, and South America which "we have long engaged to protect un- der the Monroe Doctrine." The provision is also an unlikely precedent for War Powers legislation because its author, Senator Lodge, conceded on the Senate Floor, "This is a pious hope." It was openly recog- nized by him and others that Congress could not constitutionally restrict the President's deployment of forces. See 86 Cong. Rec. 10092, 10103, 10105, 10116, 10129, 10391, 10742, 10794-10798, and especially 10895-10914, 76th Cong. 2d Seas. (1940). 118 See appendix A infra at 105. 14? Corwin also argues the U.S. agreement to turn over 50 reconditioned destroyers to Britain in 1940 "was directly violative of at least two statutes.. " E. CoRwIN, supra note 87 at 288-89. And see appendix A infra at -, and Senate Comm. on Foreign Rela- tions, S. Rep. No. 797, 91st Cong., 1st Sess. (1969) 14-15. IN See testimony of McGeorge Bundy, Con- gress, the President, and the War Powers, supra note 65, at 3.. 161 See testimony of Alexander Bickel, Con- gress, the President, and the War Powers, supra note 55, at 45. 162 See testimony of Attorney William D. Rogers, Congress, the President, and the War Powers, supra note 55, at 58. 162 See testimony of Professor Abram Chayes, who supports legislative efforts to end the Indochina War, but nevertheless vigorously opposes as unconstitutional "bills that seek to lay out a detailed blueprint in advance to govern the relations between the President and the Congress in the exercise of the national war power in all possible con- tingencies." Congress, the President, and the War Powers, supra note 55, at 135. 154 Rogers, supra note 55, at S 7199. Ica Id. 156 See testimony of Dr. James MacGregor Burns, Congress, the President, and the War Powers, supra note 55, at 81-82. 1117 Id. Consider the observation of former Ambassador Charles W. Thayer, that: "It was due largely to the erratic, occa- sionally irresponsible actions of the ancient Greek assemblies that the city-states' diplom- acy was ineffective and defensive collab- oration against the Eastern aggressors im- possible. Despite growing recognition by Con- gress and the public of the purpose, methods and needs of an effective diplomacy, so long as the consistent pursuit of long-range inter- ests and aspirations is periodically sacrificed to passing whims inspired by fleeting emo- tions in Washington, the danger persists of .a twentieth century repetition of the Greek debacle. W. THAYER, DIPLOMAT 80 (1959)." 158 See Ball, supra note 55, at S 126211. 159 Id. 16? Goldwater, supra note 67, at S 5637. 1?1 Id. 102 See generally Brief, supra note 41. 103 See generally text accompanying note 10 to note 36 supra. And see S. 731, ? 4; S.J. Res. 59, ? 4; and S.J. Res. 95, ? 4, alt supra note 2. 109 See appendix A infra at 107. 165 See R. KENNEDY, THIRTEEN DAYS (1969) at 35, 36, 68, 97, and 107. 166 Goldawter, supra note 67, at S 5638. 381 KENNEDY, supra note 165, at 53. its Id. at 53-54. 169 Goldwater, supra note 67, at S 6638. 170 See generally testimony of Commager and Morris, supra note 48; testimony of Pro- fessor Alexander Bickel, inserted in the Cong. Rec. by Senator Javits, 117 Cong. Rec. (daily ed.) S 12387 (July 28, 1971). See generally, Brief, supra note 41. 171 See Brief, supra note 41, at S 2528. In case the President should veto any such leg- islation shoving him into an expanded war, he would be put in the unenviable position of facing a Congress which (1) would likely claim he had thereby deprived himself of any authority to act at all in the hostility concerned and (2) could vote to override his veto. 172 Brant, Nixon vs. Constitution in War Powers Debate, The Washington Post, July 4, 1971, at B-3. Compare the position of Ambassador Thayer, who views the Foreign Service dan- gerously handicapped under present Con- gressional practices, let alone under the com- plications added by War Powers legislation. For example Thayer recites: "In his Memoirs, President Truman in- dicates how the Greek Civil War was very nearly lost to the Communists because of the time needed to get the necessary Congres- sional action. "The first warning that the British, then on the verge of bankruptcy, would have to withdraw from Greece not later than April 1, 1946, was telephoned to the President by the State Department on Friday, February 21. Four days later Congressional leaders were notified that some sort of action would be essential. But it was not until seventy- five days later, that the House on May 9, finally approved the measure. Meantime the Communist guerrillas had almost succeeded in overthrowing the Greek government. C. W. THAYER, supra note 157, at 78-79." 173 S. 731, supra note 2, at ? 1A(4). 174 Secretary of State Rogers contends "such a restriction could seriously limit the ability of the President to make a demonstration of force . to deploy elements of the Sixth Fleet in the Mediterranean in connection with the Middle East situation," which is exactly what President Johnson did in 1967. See Rogers, supra note 55, at S 7199, and see discussion, accompanying notes 177 to 179, infra. Moore, supra note 46, at 56470; S. Comm. on Foreign Relations, note 149, at 26. S14173 Representative Zablocki, Chairman of the House Subcommittee hearings on war powers in 1970, told Senator Javits during the latter's appearance at the hearings: "Let us say that as a result of renewed hostilities in the Middle East the President finds it necessary to in- tervene on the side of Israel. Your bill does not seem to fit that contingency since the United States has no formal treaty or pact with Israel." Senator Javits replied: "I would hope that long before any such terribly untoward sit- uation would develop in the Middle East ... this would have been adopted as a NATO responsibility and then it would come under the fourth item of my own bill." See Con- gress, the President, and the War Powers, supra note 55, at 400-401. Thus, from Senator Javits' own admission the President could not act independently in defense of the people of Israel under his bill, but would have to await either a deci- sion by NATO to take collective action in support of Israel (no one else has suggested Israel is a NATO obligation) or legislative action by Congress. - No authority considers the Middle East Resolution to be pertinent, apparently be- cause it (1) does not grant any authority to employ force, but simply states a policy that "the United States is prepared to use armed forces," (2) does not apply unless the aggres- sor country is "controlled by international communism," and (3) provides the employ- ment of force "shall be consonant with the treaty obligations of the United States" and we do not have any defense treaty with Israel. Pub. Law 85-7, a joint resolution to promote peace and stability in the Middle East, ap- proved March 9, 1957 (71 Stat. 5). 175 Goldwater, supra note 67, at S 5637. 176 Remarks of Senator Goldwater, 117 Cong. Rec. (daily ed.) S 5636-S 5637 (April 26, 1971). 177 See appendix A infra at 109. 176 The Evening Star (Washington, D.C.), May 12, 1971, D-4; Johnson, The Vantage Point, excerpt 8, The Washington Post, Oct. 24, 1971, Al, A14. 179 Id. 18? See Rogers, supra note 55, at S 7199. 181 U. S. Dept. of Navy, Summary of Wars/ Near Wars Since 1946, 116 Cong. Rec. 815712- S15713 (May 15, 1970). 182 See S. 731, supra note 173; S.J. Res. 59, supra note 2, ? 2; S.J. Res. 95, supra note 2, ? 8, and S. 1880, supra note 2, ? 3, which prohibit the President from inferring a right to act under any law unless that law "spe- cifically authorizes the use of such forces in armed conflict." see also S.J. Res. 18, which prohibits deployments to fullfill a treaty obligation qualified by constitutional limita- tions or conditions. Since nearly all United States defense treaties "limit" or "condition" our responsibility to act to steps which are "in accordance with" our own "constitutional processes," S.J. Res. 18 would seem designed to preclude Presidential initiatives under all such agreements. See S. Rep. No. 794, 90th Cong., 1st Seas. 15. (1967). 182 See appendix A infra at 108. 184 Unpublished letter of Dean Rusk in per- sonal files of Senator Goldwater. 18V See testimony of Professor Moore where he warns S. 731 would prohibit "humani- tarian intervention similar to the joint United States-Belgian operation in the Congo if the intervention were not for the protec- tion of United States nationals." Moore, supra note 46, at 56470. 166 Commager, supra note 48, at S 3357. 167 See text accompanying notes 185-86 Supra. 168 See appendix A infra at 91, 92. 180 See KENNEDY, supra note 165, at 35-36. 190 See text accompany note 104 to note 108 supra. 191 See text accompany note 109 supra. 192 Even Professor Bickel, who otherwise endorsed War Powers legislation, cautioned: Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14174 Approved For F-is(~/1~:75%OQoo7oo09001o-9~uty 20, 197 "I don't think the President can be deprived of his power to respond to an imminent threat of attack (as well as to the attack itself); or of his power to respond to attacks and threats against our troops wherever they may be, as well as against our territory; or of the power to continue to see to the safety of our troops once they are engaged, even if a statutory 30-day period has expired." Bickel, supra note 170, at 812390. Almost all commentators grant that the Founding Fathers purposefully left with the President at least "the power to repel sudden attacks," See, e.g., Note, The War-Making Powers: The Intentions of the Framers in the Light of Parliamentary History, 50Bos- TON U. L. REV. 1 (1970). 193 Senator Golwater hasput the same view in these words: "I am convinced there is no question that the President can take mili- tarry action at any time he feels danger for the country or for its freedoms or, stretching a point, for its position In the world." Gold- water, supra note 67, at 55639,_ See generally text accompanying note 86 to note 155 supra. And see position of Bernard Schwartz that: "The unwritten constitutional law of presi- denial power (if not the text of the basic document) has all but vested in the highest officer the virtual authority to make war whenever deemed necessary to protect the interests of the United States" B. bohwartz, supra note 72 at 177. r94 See, e.g., text accompanying note 41 to note 50 supra; Javits, supra note 36; Morris, supra note 48; Commager, supra note 48; and Bickel, supra note 170. 1F6 See generally, Bickel, supra note 170 at 512388; Commager, suprd note 48, at 83353: testimony of McGeorge Bundy, inserted in the Cong. Rec. by Senator Javits, 117 Cong. Rec. (daily ed.) S5629' (April 2$, 1971). 1" Javits, supra note 36, at 51204. 1117 See remarks of Senator Cooper, 117 Cong. Rec. 523722-,B23744 (July 10, 1970), with ac- companying documents. 108 See remarks of Senator Goldwater, 117 Cong. Rec. (daily ed.) 812446 (July 29, 1971). 199 Berk v. Laird, 443 F.2d 1039 (1971), cert. denied 40 U.S.L.W. 3166 (1971). 909 During Floor debate on the military draft extension Law, Senator Stennis, Chair- man of the Senate Committee on Armed Services, asserted this is the first time Con- gress has set numrical strength levels On the regular forces, as distinguished from the Re- serves, and including volunteers, officers, and inductees. See remarks of Senator Sten- nis, 117 Cong. Rec. (daily ed.) at 59589 (June 21, 1971). See also Senate Report 92-93 on H.R. 6531, 92d Cong., 1st Sess. at 35 (1971); Pub. L. 92-129, Act of Sept. 28. 1971, J301. See generally the report by the Congres- sional Reference Service, Library of Congress, Regulating the Size of the Armed Force Un- der Selective Service Law, 117 Cong. Rec. (daily ed.) 59590-59591 (June 21, 1971). 901 For example; following a trip to Saigon in May, 1964, Secretary of Defense McNamara brought back recommendations for increases in American assistance, specifically Includ- ing an increase in the size of the American advisory personnel and a larger air force for South Vietnam. President Johnson asked for, and obtained, from Congress an additional $125 million in military aid funds earmarked for these purposes. Pub. L. 88-633, 78 Stat. 1009, 1010; Pub. L. 88-634, 78 Stat. 1015 (1964). In 1965, less than nine months after Con- gress passed the Gulf of Tonkin Resolution, President Johnson sent to Congress an ap- propriation request specifically and solely related to the war in Vietnam. In it he asked for $700 million to support an increase in the number of troops in South Vietnam. The House of Representatives approved the money by a vote of 408 to 7 and the Senate approved it by a vote of 88 to 3. 111 Cong. Rec. 9232-9284; Pub. L. 89-18, 79 Stat. 109 (1965). In each of these instances Congress was confronted with a policy decision to expand the defense commitment in Vietnam in the future. These were not requests for funds, to cover past expenses, but to support future policy. Here is the kind of clear-cut decision on a specific Issue in which the author believes Congress can play a proper and im- portant, in shaping the advance course of the nation's activities or In shifting pres- ent trends, if it wishes. = William H. Rehnquist contends that "at the very heart of the Presidential power as Commander-in-Chief Is his sole authority to determine the tactics and strategy which shall govern the way in which hostilities once commeged are conducted" SENATE Comm. ON FORI$IGN RELATIONS, DOCUMENTS RELATING TO THE WAR POWER OF CONGRESS, THE PRESI- DENT'S AUTHORrrr AS COMMANDER-IN-CHIEF AND THE WAR IN INDOCHINA, 91st Cong., 2nd Bess. 177 (July 1970). Thusla distinction should be made between the decision of Congress to cut or reject an appropriation of funds for the conduct of hostilities and the attempt by Congress to dictate -rules governing the deployment of forces. For example, the Senate Committee on Foreign Relations was acting within the authority of Congress in October when it voted to reduce the funds sought by the Nixon Administration for military and eco- nomic assistance in Cambodia from $341 million to $250 million. SENATE COMM. ON FOREIGN RELATIONS, Rep. No. 02-404 at 46-47, 92d Cong., 1st Bess. (1971). On the other hand, the author believes Congress would have improperly invaded the President's sphere as the primary source of foreign' policy and Commander in Chief had it passed the so-called "End the War Amend- ment,"which called for a total withdrawal of U.S. troops from Vietnam by December 31, 1971. This would be an effort by Congress to "direct the conduct of campaigns," some- thing the Supreme Court said, in Es parte Milligan, that it cannot do. For text of amendl#ient, see 117 Cong. Rec. (daily ed.) at S8760 (June 10, 1971). Cf. Mansfield Amendment no. 427, which simply declares a policy of withdrawal from Vietnam and "re- quests" the President to implement it. See text at 117 Cong. Rec. (daily ed.) S15111 (Sept. 27, 1971). In some current instances, Congress has passed quasi-restrictions on the deployment of forces with the acquiescence of the Presi- dent. Section 843 of The Department of De- fense Appropriations Act, 1971, is a case in point. P.L. 91-668. This provision prohibits "the introduction of American ground com- bat troops into Laos or Thailand," but it was not opposed by the Administration. Nor had the Admirinistration earlier opposed a restric- tion against the introduction of U.S. ground combat, troops or advisors into Cambodia when this provision was placed in the Sup- plement Foreign Assistance Authorization Act for 1971. See Pub. L. 91-652; and Con- gressiorial Research Service, Library of Con- gress, Legislation Enacted by the 91st Con- gress to Limit United States Military Involve- ment in. Southeast Asia, March 30, 1971. So long as the President agrees to comply with the limitation (each of these two restate a previously announced intention of Presi- dent Nikon), the language will have the full force and effect of law. However, it is the author's view that the President could legally defy these and similar restrictions on the use of American forces whenever he determines it is vitally necessary to defend American security. - Mr. GOLDWATER. Mr. President, I ask further unanimous consent that there be printed a chronological list of 199 U.8. military hostilities abroad with- out a declaration of war, from 17418 to 1972. There being no objection, the list was ordered to be printed in the RECORD, as follows: WAR WITHOUT DECLARATION APPENDIX A chronological list of 199 U.S. mi'itary hostilities 1 abroad without a declaration of war, 1798-1972 1798-1800: Naval-War With France When John Adams became President in 1797, he faced the serious problem of strrined relations between France and the United States, in which France had made it a prac- tice to seize American merchant ships and to manhandled their crews. Adams first; at- tempted to negotiate a settlement, but, when the French demanded exorbitant bribes; and loans, his envoys rejected the proposafi; and departed. Adams, thereupon, asked Congress for the power to arm merchant ships and take ether defensive measures. Congress responded by creating a Navy Department, voting appro- priations for new warships, and authorizing the enlistment of a "Provisional Army" for the duration of the emergency. In July 1798, the French treaties and consular conventions were abrogated. The result was a "quasi-war," during which neither country declared war. The American Navy attacked only French warships and privateers and fought primarily for the pro- tection of commerce. Some ninety French ships were captured during this naval war. On September 30, 1800 a convention was agreed to and peace was achieved. State, 2. 1800: West Indies On April 1, U.S. Marines participated I,a the action between the U.S. schooner Ente, prise and a Spanish man-or-war brig in the West Indies. USMC, I, 40. 1801-1805: War With Tripoli During the early years of the Republic, the United States, following the practice of sev- eral European nations, paid tribute to North African pirates. Shortly after Jeffersolt 'be- came president, the Pasha Of Tripoli, dis- satisfied with the apportionment of tribute, declared war on the United States (May 1801). Jefferson thereupon sent warships to the Mediterranean. After naval actions and landings under Commodore Preble, ail in- conclusive treaty of peace with Tripoli was signed in 1805. Congress passed variotti en- abling acts during the conflict but never de- clared war. State, 3. 1806: Mexico (Spanish territory) Captain Z. M. Pike, with a platoon of troops and on the orders of General James Wilkin- son, invaded Spanish territory at the head- waters of the Rio Grande, apparently on a secret mission. State, 16. 1806-1810: Gulf of Mexico Americans gunboats operated from New Orleans against Spanish and French priva- teers. State, 16. *This edition includes supplementarz in- formation added by the author since the article was originally published. - 1 The list includes only actual battles, landings, or evacuations in foreign territory or waters. Deployments to mafntaid an Amer- ican presence, or alerts bringing an advs need state of readiness are not included, e:ccept for seven or eight incidents when the risk of war was unusually grave. No military opera- tions known to have been subsequently dis- avowed or repudiated have been included. The list was prepared with.the direction of U.S. Senator Barry Goldwater and Is pub- lished with his consent. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973Approved For 7500700090010-9 S14175 1810: West Florida (Spanish territory) 1823: Cuba (Spanish Territory) 1841: Samoan Islands Governor Claiborne of Louisiana, on orders Between April and October naval forces On February 25, an American force of 70 from the President, occupied with troops made a number of landings in pursuit of marines and seamen from the U.S.S. Peacock disputed territory east of the Mississippi pirates, apparently incident to Congressional landed to avenge the murder of a seaman. as far as the Pearl River. No armed clash oc- authorization rState, izati17 which became operative in They burned three native villages. USMS, I, curred. State, 16. 1813. West Florida (Spanish territory) 1824: Cuba (Spanish Territory) 1841: Drummond Island (Kingsmill Group, On authority granted Congress, Gen- In October, the U.S.S. Porpoise landed Pacific Ocean) eral Wilkinson seized d Mobile Bay with 600 sailors to pursue pirates during a cruise au- On April 6, marines from the U.S.S. Pea- soldiers, a small Spanish garrison gave way thorized by Congress. State, 17. cock landed and burned two towns to avenge without fighting. State, 16. 1825: Cuba (Spanish Territory) the murder of a seaman by natives. State, 18. 1843: China 1813-1814: Marquesas Islands, South Pacific In March, British and American forces (claimed by Spain) landed on two offshore Cuban islands' to In June and, July, a clash between Ameri- U.S. Marines built a fort on one of the capture pirates who were based there. The cans and Chinese at the Canton trading post islands to protect three captured prize ships. action appears to be incident to Congres- led to the landing .of 60 sailors and marines clonal authority. State, 17. from the St. Louis. Paullin, 1095-1096. State, 16. 1843: West Africa 1814-1825: Caribbean Area 1827: Greece There were repeated engagements between Apparently acting pursuant to legislation, In November and December, four U. S. ves- American ships and pirates both ashore and in October and November, United States sels from Commodore Perry's squadron dem- off shore about Cuba, Puerto Rico, Santo forces frtm the U.S.S. Warren and the U.S. onstrated and landed various parties (one of Domingo, and Yucatan. In 1882, Commodore schooner Porpoise engaged in seven actions 200 marines and sailors) to discourage piracy James Biddle employed a squadron of two against pirate vessels off Greece and made and the slave trade along the Ivory Coast and frigates, four sloops of war, two brigs, four landings on three Greek Islands. State, 17. to punish attacks made by the natives on American seamen and shipping. In the proc- Indies. and two gunboats in the West 1828: West Indies ess, they burned villages and kllled a local to have been pur- Indies. The United States sunk or captured In December, incident to legislation, Ma- ess t The urneds appear 65 vessels. Marine detachments participated rives participated in the capture of the suant to the Treaty of August 9, 1842, with in at least 14 of these actions. State, 16. Argentinean privateer Federal by the U.S. Great Britain relative to the suppression of sloop Eric at St. Bartholomew Island, W. I. 1815: Second Barbary War (Algiers) the slave trade. State, 18. In 1812 an Algerian naval squadron op- USMC, i, 67. 1844: Mexico e rated shipping in the 1830: Haiti President Tyler deployed our forces to pro- merchantman In n one one attack ck an American On June 5, marines participated in the test Texas against Mexico, anticipating Sen- prisoned. was captured and its crew im- capture of the slave brig Fenix by the U.S. ate approval a a treaty of annexation, which prisoned. In March, 1815, Congress passed schooner Grampus off Cape Haitien, Haiti. of re term. Corwin, which 245. an act that authorized the use of armed USMC, I, 67. was rejected later 18 in his China vessels "as may be judged requisite by the 1831-18321. Falkland Islands (Argentine) On June 18, Marines from the U.S. sloop President" to provide effective protection to American forces under-Captain Duncan of American commerce in the Atlantic and the the U.S. Lexington landed to investigate the St. Louis went ashore at Canton, 'China, to Mediterranean. A naval squadron of 10 ves- capture of three American sailing vessels. protect American lives. USMC, I, 72. sels under Commodore Stephen Decatur at- The Americans succeeded in releasing the 1845: African coast tacked Algiers, compelling the Dey to nego- vessels and their crews and dispersed the On November 30, Marines joined in the tiate a treaty. Decatur also demonstrated Argentine colonists. State, 17. capture of the slave bark Pons by the U.S. at Tunis and Tripoli. All three states were 1832: Sumatra sloop Yorktown off Kahenda, Africa. The ac- forced and to the pay for threats an losses d to tribute American shin terminaatedd. , A force of 250 men from the U.S .S U.S.S. Potomac tion was consistent with the Treaty of 1842. and and USMC, I, 72. State, 3. landed to storm a fort and punish natives 1846: Mexico 1816-1818: Spanish Florida of a town for an attack on American ship- ping and the murder of crew members. State, President Polk ordered General Scott to During the "First Seminole War," U.S. 18 occupy disputed territory months preceding forces invaded Spanish Florida on two 1833: Argentina a declaration of war. Our troops engaged in occasions. In the first action, they destroyed Between October 31 and November 15, at battle when Mexican forces entered the area a Spanish fort harboring raiders who had between the Nueces and Rio Grande Rivers. made forays into United States territory. In the request of American residents of Buenos The fighting occurred three days before Con- Aires, pioerce of 43 marines and sailors landed the second, Generals Jackson and Gaines from the U.S.S. Lexington to protect Amer- grass acted. U.S. 378. -attacked hostile Seminole Indians. In the and scan lives and property during an insurrec- 1849: Smyrna (Now Izmir, Turkey) occupie Spanish States (belie attacked r and tion. State, 18. In July, the U.S.S. St. Louis gained the re- President serve Monroe as 1835: Samoan Islands lease of an American seized by Austrian offi- havens by the hostiles. believed aven by the assumed responsibility for these acts. Moore, On October 11, eighty Marines and sailors slats. State, 18. 1850: African coast 403-406. burned the principal village on the island 1817: Amelia Island (Spanish Territory) to avenge harsh treatment meted out to On June 6, Marines joined in capturing a American seamen. Paullin, 729. slave ship by the U.S. brig Perry off Luanda, Under orders from President Monroe, U.S. 1835-1836: Peru Africa. The action was consistent with the forces landed and expelled a group of smug- Treaty of 1842. USMC, I, 77. Biers and pirates. Moore, 406-408. Marines from the U.S.S. Brandywine landed 1851: Turkey 1818: Oregon at various times at Callao and Lima to pro- tect American lives and property during a After a massacre of foreigners (including The U.S.S. Ontario landed at the Columbia revolt, and to protect the American Consu- Americans) at Jaffa, the U.S. Mediterranean River and in August took possession. Russia late at Lima. State, 18. Squadron was ordered to demonstrate along and Spain asserted claims to the area. Rogers, 1837: Mexico the Turkish coast. Apparently, no shots were 96 fired, but the display amounted to compul- 1820: West Africa On April 16, marines joined in the capture vier. State, 19. Marines participated in the capture of seven of a Mexican brig-of-war by the U.S.S. Nat- 1851: Johanna Island (East of Africa) the U.S: corvette Cyane chez off Bravos de Santiago for illegal seizure slave schooners by of two American merchantmen. USMC, I, 70. The U.S.S. Dale delivered an ultimatum, off Cape Mount and the Gallinos River on the 1839: Sumatra bombarded the island, and landed a force to west coast of Africa during the period from punish the local chieftain for the unlawful April 5 through 12. USMC, I, 64. In January, imprisonment of the captain of an American 1820-1822: West Coast of South America American forces from ,the U. S. sloop John whaler. State, 19. Adams and the U. S. frigate Columbia landed 1852-1853: Argentina Marines were aboard three of the U.S. at Muckie, Sumatra, to protect American ships stationed off the west coast of South lives and property and to punish natives of Several landings of marines took place in America from 1820 until May 1822, to protect two towns for attacking American ships. order to protect American residents of Buenos American commerce during the revolt against USMC, I, 70. Aires during a revolt. State, 19. Spain, USMC, I, 65. 1840: Fiji Islands 1853: Nicaragua 1822: Cuba (Spanish Territory) American forces totaling 70 officers and American forces under Captain Hollins of U.S. naval forces landed on the north- men, landed an July 12 and 26 to punish the U.S.S. Cyane landed at Greytown about western coast of Cuba and burned a pirate natives of two towns for attacking American March 10 to protect American lives and in- station. State, 17. exploring and surveying parties. State, 18. terests during political disturbances. His ac- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14176 Approved Forte #J A(L6 kii9P75 3 ,~000700090010~Uiy tivities were approved by the Secretary of the Navy. Moore, 414-415. 1853: China On September 11, a small Marine force from the U.S. steamer Mississippi boarded a Siamese vessel in the Canton River and put down a mutiny. USMC, I, 78. 1853: West Coast of Africa In accordance with the Treaty of 1842, on December 3, Marines joined in the capture of the slave schooner Gambrill by the U.S. frig- ate Constitution off the Congo River on the west coast of Africa. USMC, I, 78. 1853: Smyrna Martin Kostta, who was an American de- clarant, was released by his Austrian captors, upon an ultimatum given by Naval Captain Ingraham who trained his gums upon the Austrian vessel on which Koszta was held. Secretary of State Marcy defended the rescue against protest by the Austrian Government. Berdahi, 50. 1853-1854: Japan Commodore Matthew C. Perry led an ex- pedition consisting of four men-of-war to Japan to negotiate a commercial treaty. Four hundred armed men accompanied Perry on his initial landing at Edo Bay in July, 1853, where he stayed for ten days after refusing to leave when ordered. He then sailed south, landing a force at the Bonin Islands, where he took possession, and at the Ryukyus, where he established a coaling station. In March, 1854, he returned to Edo Bay with ten ships and 2,000 men, landed with an es- cort of 500 men, and after six weeks signed a treaty with Japanese authorities at Kana- gawa. The whole campaign was on executive authority. State, 19. 1854: West Coast of Africa Pursuant to the Treaty of 1842, on March 10, Marines joined in the capture of a slave brig by the U.S. brig Perry off the west coast of Africa. USMC, I, 78. 1854: China American and British forces consisting of 150 English sailors, 60 U.S. sailors, and 30 merchant sailors landed at Shanghai .on April 4 and stayed until June 7 to protect their nationals during a battle between Chinese imperial and revolutionary troops. State, 19. 1854: Greytown, Nicaragua In July, the commander of an American naval vessel demanded reparation after the U.S. minister to Central America was in- jured during a riot. When this was not forth- coming, the vessel bombarded the town. President Pierce defended the action of the American commander in his annual message to Congress. Moore, 415-416. 1854: Okinawa On July 6, aforce of 20 Marines from the U.S. steamer Powhatan went ashore on Oki- nawa and seized a religious shrine in punish- ment of persons who murdered an American. On November 17, Marines and seamen from the U.S. sloop Vincennes went ashore again at Okinawa to enforce treaty provisions. USMC, 1, 78. 1855: China There were two brief actions by U.S. war- ships, the first a landing in May at Shanghai to protect American interests there, the sec- ond an attack in August at gong Kong against pirates. State, 20. 1855: Fiji Islands In September and October, marines from the sloop-of-war John Adams landed four times to seek reparations for depredations against Americans and to force natives to honor a treaty. The landing parties fought skirmishes and burned some villages. USMC, I, 79. 1855: Uruguay In August and November, U.S. naval forces put sail rs ahsore to protect American in- terests ir4 Montevideo. State, 20. 1856: Panama, Republic of New Granada U.S. forces landed and stayed two days to protect American Interests, including the Isthmian railroad, during an insurrection. (By the treaty of 1846 with New Granada, the United States had acquired the right to pro- tect the Isthmus and to keep it open, in return for guaranteeing Its neutrality.) State, 20. 1856: China In October and November, the U.S. war- ships Portsmouth and Levant landed 280 officers and men to protect American inter- ests at Canton during hostilities between the British and the Chinese and in response to an unprovoked assault upon an unarmed boat displaying the U.S. flag. The Americans took and destroyed four Chinese forts. The attack by U.S. war vessels without authority of Congress; was approved by President Bu- chanan. Berdahl, 51. 1858: Uruguay Forces from two U.S. warships landed in January o protect American lives and prop- erty durig a revolt in Montevideo. The ac- tion was oaken In conjunction with the forces of other powers at the request of the local government. State, 20. 1858: African coast On September 8, Marines joined in the cap- ture of a ketch laden with slave food by the V.S. sloop Marion off the southeast coast of Africa. The action was consistent with the Treaty of X1842. USMC, I, 80. - 1858: Cuban waters After repeated acts of British cruisers in boarding and searching our merchant ves- sels in the Gulf of Mexico and adjacent seas, President, Buchanan addressed remon- strances to the British Government, against these seakches and, without authority from Congress,; ordered a naval force to the Cuban waters with directions "to protect all vessels of the United States on the high seas from search or detention by the vessels of war of any othet nation." A conflict with Great Britain was avoided only by its abandonment of her clam to the right of visit and search In time of peace. Berdahl, 51; Richardson, 3038. 1858: Fiji Islands On October 6, about 60 Marines and sail- ors from the U.S.S. Vandalia landed to pun- ish natives for the murder of two American. citizens and engaged in a fierce conflict with 800 native, warriors. State, 21. 1858-1859: Turkey American citizens were massacred in 1858 at Jaffa a d mistreated elsewhere. In the face of Turkish indifference, the Secretary of State asked the U.S. Navy to make a display of force along the Levant. State, 21. 1858-1859: Paraguay From October 1858, to February, 1859, an American ',expedition went to Paraguay to demand redress for an attack on a naval ves- vel in theParana River during 1855. Apolo- gies were forthcoming after a display of force, which amounted to compulsion. Congress au- thorized the action. State, 21. 1859: African coast On April 21 and 27, Marines joined in the capture of !a slave ship near the Congo River, Africa. The action was consistent with the Treaty of 1P42. USMC, I, 81. 1859: Mexico Two hundred U. S. soldiers crossed the Rio Grande in pursuit of the Mexican bandit Cortina. State, 21. 20, 1973 1859: China On July 31, forces from the U.S.S. Missis- sippi landed at Woosung and Shanghai, where they remained until August 2, to protect American interests and restore order. The American consul had called on the ship for assistance. State, 21. 1860: Kissembo, West Africa On March 1, 40 Marines and seamen from the sloop-of-war Marion landed twice to pre- vent the destruction of American propssty during a period of local unrest. State, 2:i. 1860: Colombia (State of. Panama) On September 27, the Marine guard from the sloop U.S.S. St. Mary's landed to protect American interests during a revolt. This nay have been authorized pursuant to the Treaty of 1946. State, 21. 1863: Japan On July 16, when Japanese shore batteries at Shimonoseki fired on a U. S. merchmt ship, the U.S.S. Wyoming retaliated by firing on three Japanese vessels lying at anchor. The shots were returned, and, by the time the action was over, there were casualties on both sides. The American Minister had de- manded redress. 1864: Japan From July 14 to August 3, U. S. forces pro- tected the U. S. Minister to Japan when he visited Yedo concerning some American claims against Japan. The forces also were designed to impress the Japanese with Amer- ican power. LRS, IV, 52. 1864: Japan Between September 4 and 8, naval for-,es of the United States, Great Britain, France, and the Netherlands jointly forced open the Straits of Shimonoseki, which had been closed in violation of commercial agroe- ments. Shore batteries were destroyed and 70 cannon seized. State, 21. 1865-1866: Mexican border In late 1865, General Sheridan was dis- patched to the Mexican border with 50,000 troops to back up the protest made by Sec- retary of State Seward to Napoleon III that the presence of over 25,000 French troops in Mexico "is a serious concern to the United States." In February, 1866, Seward demanded a definite date be set for withdrawal and France complied. Though American forces did not cross the border, the threat of for- eign military operations was clear and bri- minent. U.S., 580-581. 1865: Panama American forces from the U.S.S. St. Mare's landed to protect American interests during a revolt. This was-apparently implied by the Treaty of 1846. State, 22. 1866: China Various landings by over 100 marines and seamen were made in June and July at New- chwang to punish an assault on the Ameri- can Consul and to guard diplomats. State, I:2. 1867: Formosa On June 13, 181 Marines and seamen from the U.S.S. Hartford and U.S:S. Wyoming landed to punish natives who had murder,*d the crew of a wrecked American merchant- man. Several huts were burned. USMC, I, 61. 186'i: Nicaragua On September 6, Marines landed and ow- cupied Managua, and Leon. USMC, I, 92. 1868: Japan From February 1 until April 4, landings were made at Hiago, Nagasaki, and Yoko- hama to protect American lives and properly during local hostilities. USMC, i, 92. 1888: Uruguay At the request of local Uruguayan author- ities, several landings were made from five Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July, 20, '1973 Approved Fory&?RWQ6R$P75A8000700090010-9 S 14177 V.S. steamers at Montevideo during the month of February in order to protect Ameri- can lives and property during%an insurrec- tion. State, 22. 1868: Colombia An American force landed at Aspinwall in April to protect the transit route during the absence of local police. This was impliedly permitted by the Treaty of 1846. State, 22. 1869-1871: Dominican Republic President Grant, having negotiated a treaty of annexation, sent a strong naval force to the island to protect it from invasion and internal disorder, both during consideration of the treaty by the Senate and for months after its rejection. Berdahl, 48. 1870: Mexico On June 17, the U.S.S. Mohican pursued a pirate ship up the Tecapan River near Mazatlan, landed a party of Marines and sea- men, and destroyed it during a pitched bat- tle. State, 22. 1871: Korea In June, American landing forces under Admiral Rodgers captured five Korean forts after a surveying party, granted permission to make certain surveys and soundings, had been attacked. No treaty or convention was in effect. State, 22. 1873: Colombia In May and September, nearly 200 Ameri- can forces landed at the Bay of Panama to protect American lives and interests during local hostilities. The actions were impliedly allowed by the Treaty of 1846. State, 22. 1873: Cuban waters On October 31, the steamer Virginius, fly- ing the American flag, was captured some 18 miles from Jamaica by the Spanish steam- er Tornado, her actual destination having been to make a landing of men and arms in Cuba. In violation of treaty stipulations with the U.S. regarding counsel and trial before a proper court, a summary court-martial was convened and with circumstnces of the ut- most barbarity, a total of 53 of the crew and passengers were executed, including a consid- erable number of Americans. Large meetings were held in this country demanding violent action against Spain and President Grant au- thorized the Secretary of the Navy to put our navy on a war footing. Every available ship was commissioned or recalled from foreign stations and war looked imminent. Spain yielded and the Virginius with her surviving crew and passengers were returned in late December. Also, by an agreement concluded February 27, 1875, Spain admitted the ille- gality of the capture and the wrongfulness of the summary execution and paid an indem- nity of $80,000 to the United States. Chad- wick, 314-351. 1873-1882: Mexico U.S. troops repeatedly crossed the Mexican border to pursue cattle thieves and Indian marauders. Mexico occasionally reciprocat- ed. Such incursions were finally recognized as legitimate by agreements concluded in 1882 and subsequent years. Moore, 418-425. 1874: Hawaii In February, A party of 150 men from two U.S. vessels landed to preserve order at the request of local authorities. State, 23. 1876: Mexico On May 16, at the request of the U.S. con- sul at Matamoras, a small American force was landed to preserve order when the town was temporarily without a government. State, 23. 1882: Egypt On July 14, over 100 forces from the U.S.S. Lancaster, U.S.S. Quinnebaug, and U.S.S. Nipsic landed at Alexandria, when the city was being bombarded by the British navy, in order to protect American interests there, including the American consulate, State, 23. 1885: Colombia (State of Panama) On January 18, March 16, March 31, April 8, April 11, April 12, and April 25, American forces landed to protect American property and guard valuables in transit over the Isthmus during local revolutionary activity, an action aputliorized under the Treaty of 1846. USMC, I, 96. 1888: Korea On June 19, 25 men from the U.S.S. Essex landed at Chemulpo and marched to Seoul to protect American residents during un- settled political conditions. The action was requested by the American Minister. State, 23. 1888-1889: Samoan Islands In 1886, the German consul announced that the Sanwan group was henceforth a German protectorate, an action that brought the United States and Great Britain together in opposition. By 1889, Germany and the United States were close to a direct confrontation. The United States and Germany, together with Great Britain, shared certain treaty rights in Samoa for the maintenance of naval depots. In November 1888, U.S. Marines landed from the U.S.S. Nipsic to protect American interests after civil strife broke out ashore. In January, 1889, German forces landed, and, when those forces were attacked by the natives, German ships shelled the is- land. This action by Germany aroused the American public, and Congress appropriated $500,000 for the protection of American lives and property on the Island and $100,000 for the development of Pago Pago harbor. The United States also ordered two more warships to the scene. All three powers had warships on the scene and an untoward event might have touched off war had not a hurricane in March, 1889, destroyed all the warships ex- cept one British vessel. Thereafter, the Ger- mans invited the three powers to a confer- ence, which was agreed to and held in Berlin. In April, 1889, they established a three-power protectorate there. In 1890 the Samoans were divided, the United States acquiring Tutuila. State, 23. 1888: Haiti In December, American warships made a display of force to obtain the release of an American merchant vessel captured by a Haitian warship. The Haitian Government surrendered the ship and paid an indemnity after Admiral Luce gave an ultimatum or- dering its release before sunset. State, 24. 1889: Hawaii On July 30, at the request of the American Minister in Honolulu, the U.S.S. Adams sent a marine guard ashore to protect American lives and property during revolutionary dis- roder. State, 24. 1890: Argentina The U.S.S. Tallapoosa landed a party in July to protect the American Consulate and Legation in Buenos Aires during a revolt. State, 24. 1891: Navassa Island, Haiti - American forces from the U.S.S. Kear- sarge landed on June 2 to protect Ameri- can lives and property during a period of unrest. The action was taken pursuant to Congressional action. State, 24. 1891: Bering Sea An American squadron operated from June to October, jointly with British naval vessels, seizing four schooners. Rogers, 109. 1891: Chile In August, 102 Americans of the South Pacific station landed at Valparaiso during a revolt in order to protect the American Consulate and American lives. State, 24. 1894: Brazil The U.S. Navy engaged in gunfire and a show of force in January to protect American shipping at Rio de Janeiro during a revolt of the Brazilian navy. President Cleveland stated our action "was clearly justified by public law." State, 24. 1894: Nicaragua In July, American forces landed at Blue- fields to protect American interests during a revolt. State, 24. 1894-1896: Korea On July 24, at the request of the American Minister, a force of 21 Marines and 29 sail- ors landed at Chemulpo and marched to Seoul to protect American lives and prop- erty during the Sino-Japanese War. A Marine guard remained at the American Legation until 1896. State, 24. 1894-1895: Ching On December 6, 1894, Marines disembarked from the U.S.S. Baltimore at Taku and marched to Tientsin to protect American lives and property during the Sino-Japa- nese War. The landing party maintained order until May 16, 1895. USMC, I, 98. 1895: Colombia (State of Panama) Marines from the U.S.S. Atlanta landed in March to protect American interests during a revolt. This appears to have been author- ized by treaty. State, 24. 1895-1896: Korea During internal disorders from October 11, 1895, to April 3, 1896, the American Legation at Seoul was protected by Marines from vari- ous ships. Ellsworth, 60. 1896: Nicaragua On May 2, marines were put ashore at Corinto by the U.S.S. Alert during revolu- tionary disorders to protect American Inter- ests. USMS, 1, 99. 1898: Nicaragua On February 7, Marines landed at San Juan del Sur by the U.S.S. Alert to protect Americans against disorder. USMC, I, 99. 1898-1899: China American forces guarded the Legation at Peking and the Consulate at Tientsin from November, 1898, to March, 1899, during a pe- riod of unrest. President McKinley reported this protective action in his annual mes- sage. State, 25. 1899: Nicaragua On February 24, in response to a petition from foreign merchants during an insurrec- tion, Marines landed to protect life and prop- erty at San Juan del Norte and Bluefields. State, 25. 1899: Samoan Islands Sixty Americans landed on February 14 from the U.S.S. Philadelphia, and on April 1 joined a British force in efforts to disperse native - rebels. This may have been under color of treaty or statute. State, 25. 1899-1901: Philippine Islands The United States employed 126,468 troops against the -Philippine Insurrection without a declaration of war after the Treaty of Peace with Spain was concluded. Presumably the United States acted to suppress the rebellion under authority of the Treaty of Peace, which transferred to it the sovereignty pos- sessed by Spain in the Philippine Islands. 40C.- of Claims. 26-32. 1900-1901: "Boxer" Rebellion (Peking) In 1900 President McKinley sent 5,000 troops to join the international military force organized for the relief of foreign legations besieged in Peking by Chinese "Boxers." Using troops already mobilized for the Span- ish-American War and the Philippine In- surrection, McKinley did not seek authority from Congress. Peace terms were concluded at an international conference, and a peace Protocol was signed September 7, 1901. The Protocol was not submitted to Congress. Be- cause of the obvious inability of Chinese authorities to control local disorders, the United States acquired the right to maintain a guard at Peking for defense of the Ameri- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14178 Approved For ! 75R II A00700090010July 20, 1913 can Legation and to station military forces at certain points in Chinese territory to keep open communications between Peking and the sea. (Earlier, in 1858, the United States had acquired the right by treaty to station naval vessels in Chinese waterit:) State, 3-4. 1901: Colombia (State of Panama) American forces went ashore in late No- vember and stayed until December to pro- tect American property and to keep transit lines open across the Isthmus during serious political disturbances. This apparently was authorized by the Treaty of 1846. State, 25. 1902: Colombia (State of Panama) Marine guards landed in April to protect American lives and the railroad across the Isthmus during civil disorders. They con- tinued to land at various times between April and November. This appears to have been authorized by the Treaty of 1846. State, 46. 1903: Honduras American forces disembarked at Puerto Cortez in March to protect the American Consulate and port facilities during a period of revolutionary activity. State, 25. 1903: Dominican Republic In April, 29 Marines landed at Santo Do- mingo, where they remained for three weeks to protect American interests during a pe- riod of political, disturbances. State, 25. 1903-1904: Syria A Marine guard landed and remained for a few days at Beirut in April to protect the American Consulate during a Moslem upris- ing. Also our Mediterranean Squadron dem- onstrated at Beirut from September to Jan- uary and at Smyrna the next August. State, 25. 1903: Panama A revolution leading to the independence of Panama from Colombia broke out in No- vember. Marines landed from the U.S:S. Dixie to prevent Colombian troops from carrying out a threat to kill American citizens, after Commander Hubbard had refused to allow the Colombians to transport their troops across the Isthmus. Marine guards remained on the Isthmus from the date of Panamanian independence (November 4, 1903) until Jan- uary, 1914, to protect American interests dur- ing the construction of the Canal. This was allowed under the Hay-Bunau-Varilla Treaty. State, 25-26. 1903-1904: Abyssinia Twenty-five American marines were sent to protect the U.S. Consul General from No- vember 18, 1903, to January 15, 1904, while he was negotiating a treaty with the Em- peror. USMC, I, 109. 1904: Dominican Republic On January 3, 7, and 17, and on February 11, over 300 Marines landed at-Puerto Plata, Sosua, and Santo Domingo to protect Ameri- can lives and property during a revolt. USMC, 108-109. 1904: Morocco A squadron demonstrated in Moroccan waters in June to force the release of a kid- napped American. A Marine contingent had landed on May 30 to protect the Consul General. State, 26. 1904: Panama American troops were used to protect American lives and property at Anc6n in November when a revolt seemed imminent. This action seems to have been authorized by treaty. State, 26. 1904-1905: Korea In January, 1904, over 100 American troops were sent to guard the American Legation at Seoul because of the outbreak of the Russo- Japanese War. They remained until Novem- ber 1905. In March, 1904, Marines assisted In the evacuation of American nationals. USMC, 1,108. 1005-1907: Dominican Republic After ,the Senate failed to ratify a treaty providing that the United States should guarantee the integrity of the Dominican Republic, take charge of its customs, and settle its obligations, President T. Roosevelt nevertheless put its term into effect for two years until in 1907 the Senate ratified a slightly revised version. Berdahl, 41-42. 1906-1909: Cuba An American squadron demonstrated off Havana,: and, in September, marines landed to protect American interests during a revo- lution. In October, marine and army units landed and took up quarters In many Cuban towns in connection with the temporary oc- oupation of the country under a provisional governor appointed by the United States. This occupation was within the scope of the provision of the 1903 Treaty of Relations be- tween the two countries, which gave the United States the right to intervene to pre- serve order. The occupation lasted until January, 1909. State, 26. 1907: Honduras On M rch 18, during a war between Hon- duras aild Nicaragua, the U.S.S. Marietta dis- embark 10 men to guard the American Consuls at Trujillo. The U.S.S. Paducah also landed forces at Laguna and Choloma on Apr 28. State, 26. In M4y, one hundred men from the U.S.S. Paducah landed at Greytown to protect American lives and property during a revolt. The U.S.S. Dubuque also engaged in shows of force. Joined combat was "hourly ex- pected. State, 26. 1 1911: Honduras Sixty ;men from the U.S.S. Tacoma and Marietta went ashore at Puerto Cortez dur- ing a revolt to protect American interests. The American Commander threatened to use force if! necessary. State, 26. 1911-1912: China American forces made six landings to pro- tect American interests during the initial stages df a revolution. They were stationed at Foochow, Chinkiang, Peking, Hankow, Nanking, Shanghai, and Taku. This may have occurred pursuant to rights acquired during the "Boxer" Rebellion. State, 27. 1912: Panama During June and July, at the request of local political groups, American troops super- vised elections outside the Canal Zone. This was impliedly authorized by the Hay-Bunau- Varilla ' `reaty. State, 27. 1912: Cuba In May, American troops landed in eastern Cuba during a revolt and remained for three monthsito protect American interests. This appears: to have been authorized by the Treaty of 1903. President Taft telegraphed the Pre ident of Cuba that the action was for protection only. Hackworth, 328-329. 1912: Turkey A trop detachment from the U.S.S. Scor- pion as ~fisted in the protection of the diplo- matic corps at Istanbul during the Balkan War. State, 27. 1912: Nicaragua During a civil war, the President of Nic- aragua'asked the United States to protect its citizens resident there. Acting on a recom- mendation of the American Minister, Presi- dent Taft ordered sizable landings of marines in August and September, 1912. Political sta- bility returned to Nicaragua by January, 1913, but a detachment of marines was kept in Managua to guard the American Legation after the rest of the American troops with- drew. The Legation guard was reinforced in 1922 and remained until August 1, 1925. State, 27. 1913: China U.S. forces landed in July at Chapel and Shanghai to protect American interests. ]log- ers reports there were many demonstrations and landing parties by United States forces for protection in China continuously Irom 1912 to 1941. He writes; "In 1927, for example this country-had-5,670 troops ashore in C:iina and 44 naval vessels in its waters. In 1933 we had 3,027 armed men ashore. All this pro- tective action was in general terms based on agreements with China ranging from 1858 to 1901." Rogers, 117. 1913: -Mexico In September a fewMarines disembarked at Ciaris Estero, during a -period of civil strife, to aid in the evacuation of American citizens. State, 27. 1914: = Haiti Marines landed in January, February, and August to protect American citizens during a period of unrest. State, 27. 1914: Dominican Republic During a period of revolutionary activity, U.S. naval forces fired at revolutionaries who were bombarding Puerto Plata, in order to stop the action. Also, by a threat of force, fighting in Santo Domingo was prevented. State, 28. . 1914: Occupation of Vera Cruz, Mexico On April 9, 1914, an American naval officer and 9 crewmen from the U.S.S. Dol~)hin anchored off the coast at Tampico, Me rico, were arrested and marched through the streets by local authorities. They were re- leased and an apology was extended as noon as the local Mexican commander learned of the incident. Admiral Mayo, commander of the American squadron, also demanded e, 21- gun salute to the American flag. The Mexi- cans refused and President Wilson proixptly ordered the North Atlantic battleship fleet to Tampico. On April 20, he addressed Congress in a joint session and asked for authority to use the armed forces, While Congress de- bated, Wilson learned that a German stei.mer was headed toward Vera Cruz to unload munitions for Huerta, and he decided to di- rect the naval action against Vera Cruz, and, after an armed engagement resulting in 400 casualties, the Americans occupied the city on April 21. On April -22, Congress passed a joint resolution which declared that the President was "justified in the employment of the armed forces of the United States to enforce his demand for unegivocal am-nds for certain affronts and indignities com- mitted against the United States," but that "the United States disclaimed any hostility to the Mexican people or any purpose to riake war upon Mexico." By November 23, 1914, American troops had left Mexican soil. State, 4. 1915: Dominican Republic On August 15, the 5th Marine Regiment arrived at Puerto Plata to protect American lives and property during a revolutionary outbreak. Their protective mission listed until October 12, 1915. 1915-1934: Haiti In July, at the initiative of the Executive, the United States placed Haiti under the military and financial -administration of the United States, in part to protect American lives and property and in part to forestall European intervention to collect debts. Ma- rines were stationed in Haiti until 1934. The occupation was sanctioned by a treaty con- sented to by the Senate in February, 1916, but the first months of the occupation were on executive authority alone. State, 28. 1916-1924: Dominican Republic President Wilson ordered the occupation of Santo Domingo In May, 1916, owing to local unrest. At one point, 3,000 marines were ashore. The United States placed a military governor in the Dominican Republic but Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 2011973 CONGRESSIONAL RECORD - SENATE turned political affairs over to the Domin- icans in 1922. U.S. troops withdrew in 1924, and a general treaty signed that year formally sanctioned the previous occupation. The Convention of February 8, 1907, also appears to have authorized the landing of U.S. troops. State, 28. 1916: China American forces landed at Nanking to quell a riot taking place on American property. -Apparently this was authorized by an international agreement. State. 28. 1916-1917: Pershing Expedition into Mexico In October, 1915, the United States recog- nized the Carranza regime as the de facto government in Mexico. At the same time, Mexican rebel, Pancho Villa, directed a campaign against the United States. In January, 191,6, Villa's followers massacred 18 American mining engineers in Santa Ysbel, Mexico. Then, on March 9, 1916, 400 of Villa's men raided Columbia, New Mexico, and killed 17 Americans. The American public was in- censed, and Wilson delayed sending an ex- pedition only until he could obtain Car- ranza's consent. On March 13, 1916, when Carranza's government acceded, Wilson ordered General John J. Pershing to take U.S. Army units into Mexico. On March 16, Pershing crossed the border with 6,000 troops. On the . following day, Congress adopted a joint resolution introduced by Senator Robert LaFollette sanctioning the use of the armed forces. Until then, Wilson had been relying on claims of authority under the Acts of 1795 and 1807 relative to employing the armed forces whenever there is "imminent danger of invasion," Villa eluded Pershing, and the size of the U.S. expedition soon grew to such proportions (12,000 men) that Carranza protested and demanded its withdrawal, threatening war. Wilson on June 18 called out the National Guard and incorporated it into the Army; 150,000 militia were ordered to the Mexican border. But neither country really wanted war, and the crisis gradually subsided. Wilson decided to withdraw all American troops from Mexico in February, 1917. State, 5-6. 1917: Armed Atlantic Merchant Ships In February, President Wilson asked Con- gress for authority to arm U.S. merchant vessels with defensive guns, but Congress refused to pass such a law. Thereupon Presi- dent Wilson acted, on his own authority, to equip American merchant vessels with guns and gunners assigned to them from the Navy. His action occurred priorito the declaration of war on Germany which did not take place until April 6, 1917. Willoughby, III, 1568. 1917: Cuba American troops landed in February at Manzanilla to protect American interests during a revolt. Various other landings were made, and, though the revolt ended in April, 1917, troops remained until 1922 because of continued unsettled political conditions. This was authorized by the Treaty of 1903. State, 28. 1917: China On December 3 and 4, American troops landed at Chungking to protect American lives during a political crisis. Apparently this was done pursuant to the Treaty of June 18, 1858, and the Boxer Protocol of September 7, 1901. Hackworth, 332. ;1918-1919: Mexico U.S. troops entered Mexico to pursue ban- dits three times in 1918 and six times in 1919. In August, 1918, there was a brief skirmish between American and Mexican troops at Nogales. State, 28, 1918-1920: Expeditions to Russia Following the Bolshevik revolution in Rus- sia in 1917, Allied expeditions landed, in 1918, at Murmansk and then Archangel. American troops first landed in August, 1918, with most arriving in Archangel Harbor on September 4. Though Armistice Day came on November 11, 1918, the American forces re- mained until June 27, 1919. At Archangel, the U.S, contributed some 5,208 men and suffered some 549 casualties, including 244 deaths. The Allies also landed units in Siberia in August and September of 1918 where Bol- shevik troops were fighting a force of*65,000 Czech soldiers who were trying to fight their way eastward, The Japanese sent 74,000 sol- diers; the Americans sent 8,388; and the British and French provided minor contin- gents. The American forces began embarking for home on January 17, 1920, and the last units left on April 1, 1920. President Wilson, who acted without Con- gressional approval, agreed to participate in the Allied expeditions to aid the anti-Bolshe- viks, to help several thousands of Czech troops get back to their homeland, and to forestall possible Japanese expansionist plans in Siberia. State, 6. 1919: Dalmatia At the request of Italian authorities, U.S. bluejackets were landed at Trau, September, 1919, in order to police order between the Italians and the Serbs. The action, which was entirely without the previous knowledge or consent of Congress, was an extension of the Constitutional principle of police supervision as earlier applied in the zone of the Carib- bean. Berdahl, 56. 1919: Turkey On May 14, a Marine detachment from the U.S.S. Arizona landed to guard the U.S. Con- sulate at Constantinople during the Greek occupation of the city. USMC, I, 121. 1919: Honduras A small American force went ashore at Puerto Cortez to maintain order in neutral zone during an attempted revolt. State, 29. 1918-1920: Panama American troops went outside the Canal Zone, on request of the Panamanian Govern- ment, to supervise elections and police the Province of Chiriqui. This was authorized by the Convention of November 18, 1903. Hackworth, 331. 1920: China In March and August, American forces landed at Riukiang and Youchow to pro- tect American lives and property. This ap- pears to have been authorized by interna- tional agreement. Hackworth, 332. 1920: Guatemala Forty men from the U.S.S. Tacoma and Niagara went inland to Guatemala City to protect the American Legation and other American interests during local fighting, but were withdrawn after about 10 days. State, 29. 1920-1922: Siberia The United States stationed a marine guard on Russian Island, Bay of Vladivostok, to protect United States radio facilities and other property. State, 29. 1921: Panama-Costa Rica American naval squadrons demonstrated for one day on both sides of the Isthmus to prevent war between the two countries over a boundary dispute. This was impliedly au- thorized by treaty. State, 29. - 1922: Turkey In September forces from several Ameri- can warships went ashore with the consent of both Greek and Turkish authorities to protect American interests when the Turkish forces were advancing on the city of Smyrna. Hackworth, 333. 1922-1923: China - There were five landings by Marines from April, 1922, to November, 1923 (at Peking, Tientsin, Taku, Tungshan, and Masu Island) to protect Americans during periods of un- S.14179 rest. This appears to have been authorized by international agreements. USMC, I, 122- 123. 1924-1925: Honduras There were intermittent landings from February, 1924, to April, 1925, to protect American lives and property during local unrest. In March, 1924, the Denver put ashore 167 men and in September, the U.S.S. Rochester landed 111 additional forces, USMC, I, 123-124. - 1924-1925: China From September, 1924, to June, 1925, over seven landings were made by the Marines at Shanghai to protect Americans during a pe- riod of unrest. This appears to have been authorized by international agreement. USMC, I, 124-125; Hackworth, 332-333. - 1925: Panama As a result of strikes and rent riots, and at the request of Panamanian officials, 600 troops from the Canal Zone entered Panama City in October and remained for 11 days to maintain order. This conformed to American treaty rights. State, 29. 1926-1933: Nicaragua When local disturbances broke out in 1926, the Nicaraguan Government requested that American forces undertake to protect lives and property of Americans and other for- eigners. In 1927, five thousand soldiers were put ashore. Rebel political leader, Sandino, who re- ceived Communist propaganda and financial support, turned the situation into a real civil war. In January, 1928, Sandino was forced to flee to Mexico by Marine forces, but backed by Communist aid, he returned In 1930 and Nicaragua flared again. By 1933 an all-Nicaraguan Guardia National became strong enough so that all U.S. Marines could leave. In all the marines had engaged in 150 clashes and lost 97 men, 32 in. action. Rebel losses were approximately over a thousand. The occupation was initiated entirely on the executive responsibility of President Coolidge. The Democrat minority bitterly criticized his policy as a "private war" and as "`imperialism," but did not question the President's authority. State, 6-7; and Dupuy and Baumer, 168. - 1926: China - American forces landed at Mankow in Au- gust and September and at Chingwangtao in November to protect American interest. This appears to have been authorized by in- ternational agreement. State, 29. 1927-1928: Armed Actions in China Anti-foreign Incidents in China reached a climax in 1927. In February, a U.S. expeditionary bat- talion landed at Chaighai and i n March, 1,228 marine reinforcements landed there. By the end of 1927, the United States had 44 naval vessels in Chinese waters and 5,670 men ashore. In 1928, when the Nationalists had gained greater control over Chinese ter- ritory and purged themselves of Communist support, the United States reached a sep- arate accord with them and, in July, signed a treaty which constituted United States rec- ognition of the Nationalist Government. A gradual reduction of United States forces in China began in the same month. State, 7-8. 1932: China In February, American forces landed at Shanghai to protect American interests dur- ing the Japanese occupation of the city, ap- parently under treaty. State, 30. 1933: Cuba - During a revolution, United States naval forces demonstrated offshore but no forces landed. This was pursuant to the Treaty of 1903. State, 30. 1934: China In January, marines from the U.S.S. Tulsa landed at Foocaow to protect the American Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14180 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July 20, 1973 Consulate, apparently pursuant to treaty rights, USMC, I, 120. 1936: Spain From July 27, through September 19, the Quincy, carrying a marine guard, served in the Spanish war zone. The vessel touched at several ports, sometimes evacuating American nationals. (Master rolls.) 1987-1938: China Beginning on August 12, 3937, several ma- rine landings were made at Shanghai to pro- tect American interests during Sino-Jap- anese hostilities. Marine strength In China, assigned under the International Defense Scheme, reached 2,536 men by September 19. USMC, II, 2-3. 1940: British Possessions in Western Atlantic On September 3, President Roosevelt In- formed Congress that he had agreed to de- liver a flotilla of destroyers to Great Britain in exchange for a series of military bases granted us on British soil along the Western Atlantic. American troops and ships occu- pied a number of these points in the follow- ing months. The President did not ask ap- proval from Congress. State, 8-9. 1941: Greenland (Denmark) In April, after the German Invasion of Denmark, the U.S. Army occupied Green- land under agreement with the local au- thorities. Congress was not consulted and the action appears to be contrary to an express Congressional limitation on using troops outside the Western Hemisphere. State, 8-9. 1941: Iceland By Presidential order, U.B. troops occu- pied Iceland on July 7, the same day Con- gress was notified. The President did not consult Congress in advance, and, in fact, the action clearly violated an express re- striction that Congress had enacted a year before. Both the Reserves Act of 1940 and the Selective Service Act of .1940 provided that United States troops could not be used outside the Western Hemisphere. Iceland is generally placed with the section on Europe in each World Atlas and is some 2,300 miles away from the United States. State, 8-9. 1941: Dutch Guiana In November, the President ordered Amer- lean troops to occupy Dutch Guiana by agree- ment with the Netherlands Government-in- exile. Again there was no Congressional au- thority for the military occupation. State, 8-9. 1941: Atlantic Convoys By July 7, President Roosevelt had ordered U.S. warships to convoy supplies sent to Europe to protect military aid to Britain and Russia. By September, our ships were attacking German submarines. There was no authorization from Congress. Corwin, 203. 1946: Trieste , In July, during the Italian-Yugoslav bor- der dispute in the Trieste area, U.S. Naval units were dispatched to the scene with open warfare imminent. After the Yugoslavs forced down on August 9, and then shot down on August 19, unarmed U.S. Army transport planes flying over the former Ital- ian province of Venezia Giulia. President Truman ordered our troops along the Morgan Line of zonal occupation augmented and the reinforcement of our air forces- in northern Italy. The Yugoslav-Russian offensive against Trieste then quieted. Acheson, 195- 196. 1946: Turkey On August 7, Russia demanded that Tur- key allow it to participate in the "defense" of the Straits. On August 14, President Tru- man met with his chief advisers and ap- proved their recommendation to send a powerful naval force, including the super- carrier Franklin D. Roosevelt, to join the U.S. Missouri at Istanbul as an afnrma- tioi of U.S. Intentions to resist the Russian move against Turkey and the Straits. Presi- dent Truman informed his advisers that he understood fully that the action could lead to war, but that nevertheless he was deter- mined to prevent Soviet domination of the areal Acheson, 195, 196. 1946: Greece In September, during the attempted Com- munist takeover of Greece, naval units were 'requested by the U.S. Ambassador. One car- rier was on the scene. USN, 15712. 1948: Palestine On July 18, a Marine consular guard was detached from the U.S.S. Kearsarge and sent to Jerusalem to protect the U.S. Consular General there. One consular official was as- sassi ated and two Marines were wounded during the Arab-Israeli War. USMC, III, 7. On January 7, Fleet Admiral Nimitz im- plied. Marine reinforcements sent from the U.S. to Mediterranean waters served as a warning to Yugoslavia that the 5,000 U.S. Army, troops in Trieste were not to be mo- lested USMC, III, 5. A platoon of Marines was sent to Nanking on November, 1948, to protect the American Embassy when the fall of the city to Com- munitt troops was imminent. The guard was withdrawn on April 21, 1949. In November and December, Marines were sent to Shang- hai to aid in the evacuation of American Nationals and to protect the 2,500 Americans in the!.. Communist encircled city. USMC, III, 8-9. 1950-1953: Korean Conflict Communist armies of North Korea invaded South Korea on June 25, 1950, Later that day the United Nations Security Council de- nouncTd the aggression, called for an imme- diate cease-fire, and asked member nations "to render every assistance to the United Na- tions in the execution of this resolution." On June 27 President Truman announced that he had "ordered United. States air and sea forces' to give the Korean Government troops cover and support" and had ordered the Seventh Fleet to prevent any 'attack on Formosa and also to prevent the Chinese Gov- ernment on Formosa from conducting any air and sea operations against the Commu- nist mainland. The Security Council, on the same day, adopted a resolution "that the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area." The-Department of State prepared a mem- orandum, on July 3, 1964, which defended the authority of the President to take the neces- sary acqon to repel the attack on Korea, us- ing the argument that the "President, as Commander in Chief of the Armed Forces of the 'United States, has full control over the use thereof." Truce talks began in July, 1951, but it was not until July. 1953, that an armistice was signed. State, 9-11. 1954-1955: Tachen Islands (China) From July, 1954, to February, 1955, U.S. Naval units were employed in evacuation of U.S. civilians and military personnel. Five carriers Were on the scene. USN, 15712. 1956: Egypt On November 1 and 2, a Marine battalion evacuate# over 1,500 persons, mostly U.S. national from Alexandria, Egypt, during the Suez crisis. USMC, III, 34. 1957: Indonesia On February 14, the 3rd Marines took up station 5?0 miles northeast of Sumatra ready to interv ns to protect U.S. nationals during the Indo esian revolt. USMC, III, 34. 1951: Taiwan During Communist shelling of Kinmen Island in July, naval units were dispatched to defend Taiwan. Four carriers were on the scene. USN, 15712. 1958.. Venezuela In January, when mob violence erupted In Caracas, a company of marines embarked on board the U.S.S. Des Moines and remained on station off Venezuela really to protect American Interests. USMC, III, 36. 1958: Indonesia In March, a Marine Company, attack squadron, and helicopter squadron sere de- ployed with elements of the Seventh Fleet off Indonesia prepared to protect U.S. citi- zens and interests. USMC, III, 36. 1958: Lebanon Operation A period of civil unrest began in Lebanon in May, 1958, led by Moslems who reportedly aided by the United Arab Republica'm Presi- dent Nasser. When a pro-Nasser coup took place in Iraq July 14, President Chamoun of Lebanon appealed for assistance to Pr+osident Eisenhower. On July 15 President Eisenhower sent 5,000 marines to Beirut to "protect American lives" and to "assist" Lebaaon in preserving its political independence. The President publicly Stressed the provocative Soviet as well as Cairo radio broadcasts. Eventually, 14,000 American soldiers and marines occupied strategic areas in Leba- non, but with orders not to - shoot unless shot at. On the day of the initial landings, the United States asked the United Nations Se- curity Council to establish an international police force to preserve Lebanon's independ- ence, but the Soviet delegate vetoed the American resolution. Further, the Soviet Union announced that it would hold mili- tary maneuvers near the Turkish and Iran- ian frontiers. On August 21, the General Assembly passed a resolution calling on the member states to respect one another's territorial integrity and observe strict non-interference in orvc an- other's affairs. The resolution regtested that practical arrangements be made leading to the withdrawal of troops from Lebanon. On September 26, the United States notified the Secretary-General of the United Nations that it had been possible to withdraw a portion of the American forces and to work out a schedule to withdraw the remainder by the end of October. State, 11-12. 1959-1980: Cuba In the period from November 20, 1969, to February 15, 1960, the 2d Marine Ground Task Force was deployed to protect U.S. nationals during the Cuban crisis. UI3MC, 111, 42- 1961: Show of naval force in Dominican waters On May 30, Dominican dictator Rafael'rru- jillo was assassinated. Political conditions in the Dominican Republic steadily deteriorated during the summer and early autumn. Then, on November 15, General Hector Trujillo and General Jose Trujillo, brothers of the slain dictator, returned to the island. Sec- retary Rusk stated three days later they ap- peared "to be planning an attempt to reassert the dictatorial domination of the political and economic life of the country ," He added: "the United States is considering the further measures that unpredictable events might warrant." On November 19, U.S, Navy ships took up positions three miles off the Dominican coast and Navy jet planes patrolled the shorel..ne. The show of force produced the desired ram ult because the Trujillo brothers and other members of the family departed for Mim;rrd before the day was over. According to one au- thority, "It later transpired that the II',:n- nedy Administration was prepared to order U.S. marines ashore if President Joaquin Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD SENATE July 20, 1973 Balaguer had so requested or if the Trujillos had outsted Balaguer from the presidency." ERR, 449-500. 1962: Thailand On May 17, the 3d Marine Expeditionary Unit landed in Thailand to support that country during the threat of Communist pressure from outside. On July 1, President Kennedy ordered 1,000 Marines in Thailand to return to their ships, and on July 30, the U.S._ completed the withdrawal of the 5,000 Marines sent there. USMC, III, 56-57. 1962: Cuban naval quarantine On October 24, confronted with a build-up of Soviet surface-to-su;face missile bases in Cuba, President Kennedy ordered a quaran- tine 500 miles wide in the waters around Cuba. The blockade was aimed both at pre- venting delivery of additional Russian mis- siles and obtaining the removal of those offensive Russian weapons already in Cuba. The crisis appears to date from Tuesday, October 16, when the Government's inner circles first began to discuss' the idea of a blockade. On,October 20, the First Armored Division began to move out of Texas Into Georgia, and five more divisions were placed on alert. The Navy deployed 180 ships into the Caribbean. The Strategic Air Command was dispersed to civilian airfields and a B-52 bomber force was ordered into the air fully loaded with atomic bombs. On October 22, President Kennedy went on television to explain before the nation the situation in Cuba and the reasons for the quarantine. The President first notified Mem- bers of Congress that same day. On Tuesday, the 23, the Council of the Organization of American States formally authorized by a unanimous vote "the use of armed forces" to carry out the quarantine of Cuba. Appar- ently, one day later the blockade went into effect. Other notable dates include October 27, when the Defense Department announced that '24 troop-carrier squadrons of the Air Force Reserve were being recalled to active duty; October 28, when Premier Khrushchev in a message to President Kennedy, an- nounced he had ordered the dismantling of Soviet missile bases in Cuba; November 11, when Deputy Secretary of Defense Gilpatric announced the United States had counted 42 medium-range missiles being removed from Cuba on Soviet ships; and November 20, when President Kennedy announced he had ordered the lifting of the naval blockade. On December 6, V.S. Navy planes verified that 42 Soviet jet bombers were being trans- ported home from Cuba. The United States apparently closed the book on the Cuban crisis about this date. LRS, I, 24-25; and LRS, II, 1-18. 1963: Haiti On May 4, a Marine battalion was posi- tioned off the coast of Haiti for five days when trouble developed in that country, USMC, III, 61. 1964: Congo In August the United States sent four C-130 transport planes with approximately 100 flight and maintenance crews and para- troopers to protect the aircraft while on the ground. The purpose was said to be to provide airlift for the regular Congolese troops to combat areas during a rebellion against the government of Premier Tshombe and Pres- ident Kasavubu. Earlier, in July, the United States had sent 68 officers and men to Leopoldville to advise the Congolese army, Both actions followed the withdrawal on June 30 of the last of the 20,000-man force which the United Nations had placed in the Congo in order to keep the peace. Subsequently, in November, rebels in the Stanleyville area held over a thousand for- eign civilian hostages, including 60 Ameri- cans, who were subjected to many atrocities and whom the rebels threatened to kill. When negotiations between the rebels and the United States failed, the United States and Belgium arranged to land Belgian para- troopers to undertake a humanitarian res- cue operation. On November 24, the force was airdropped by U.S. transport aircraft in the Stanleyville area and liberated most of the hostages. Belgian paratropers undertook a second res- cue operation on November 26, capturing the rebel town of Paulin. In all, about 2,000 foreigners were rescued. President Johnson assumed "full responsibility" for the United States role in the decision to transport the Belgian troops in American planes. Davids, 296-310. 1964-1973: Armed Actions in Laos At the request of the Laotian Government, unarmed United States jet planes began flying reconnaissance missions over the Plaines de Jarres in May, 1964, in order to gather information on rebellious forces headed by leftist Pathet Lao. After two jets were shot down on June 6 and 7, President Johnson decided to carry out a limited re- prisal. On June 9, U. S. Navy jets attacked a Communist gun position in north central Laos, and this was followed by 36 "sorties" which knocked out a number of Communist posts. The United States has ocntinued to play a role of air support in Laos to date. State, 30. 1964-1973: Armed Action in Vietnam Following the Geneva Accords of 1954 which provisionally divided Vietnam at ap- proximately the 17th parallel, the Commu- nists held control of the northern half of the country while anti-Communists maintained a precarious hold on the south. A U. S. Mili- tary Assistance Advisory Group, which as- sumed responsibility for the training of the South Vietnamese army after the French relinquished command, was steadily ex- panded as Communist guerrilla activity sup- ported and directed from the north inten- sified. By 1962 there were' 12,000 U. S. ad- visors. In August, 1964, at the request of Presi- dent Johnson following an attack on Ameri- can naval vessels in the Gulf of Tonkin, Congress passed the Gulf of Tonkin Resolu- tion, unanimously in the House and by a vote of 88-2 in the Senate, The Resolution expressed approval and support of "the de- termination of the President, as Commander in Chief, to take all necessary measures to re- pel any armed attack against the forces of the United States and to prevent further aggression." Also it provided the United States is "prepared as the President deter- mines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Col- lective Defense Treaty requesting assistance in defense of its freedom." (South Vietnam is a protocol state of SEATO.) The joint res- olution was signed into law on August 10 as Public Law 88-408. Both this resolution and the SEATO agree-' ment itself have been claimed as authority for United States activities in Vietnam. In addition, several appropriations laws pro- viding for support of the hostilities in South- east Asia have been judicially determined to represent authority for our engagement there. The Tonkin Gulf Resolution was sub- sequently repealed by P.L. 91-672 (Jan. 12, 1971). Since assuming office in January, 1969, President Nixon has? ordered the withdrawal of almost 550,000 troops. A peace agreement ending U.S. involvement in the war was an- nounced on January 23, 1973. State, 12-14. 1965: Dominican Republic A revolt broke out in the Dominican Re- public on April 24, 1965, and on April 28 S 14181 President Johnson announced that Domini- can military authorities had requested as- sistance from the United States in protecting the lives of United States ci.tiSens living in that country. The President added that he had ordered the Secretary of Defense to put the necessary troops ashore to protect Ameri- cans and that this assistance would be avail- able to the nationals of other countries as well. The first United States military contin- gent to the Dominican Republic consisted of 400 men. On May 2 the President an- flounced that he was sending 200 more men immediately and that an additional 4,500 would go at the earliest possible moment. He cited the increasing Communist control of the revolutionaries, as well as the urgent need for food, medical supplies, and other humanitarian assistance to the Dominican people, as reasons for his decision. At their peak 21,500 United States troops were in the Dominican Republic. On May 5, a five-man OAS peace com- mission succeeded in achieving a cease-fire agreement among the contending forces and on May 6 the OAS voted to create an Inter- American Peace Force to assist in restoring peace and order. The arrival on May 21 of the first contingent of a Brazilian force per- mitted the withdrawal of 1,700 United States troops, and as other foreign contingents ar- rived, additional United States troops were withdrawn. By the end of 1965, the Inter- American Peace Force totaled 9,400. In the meantime, a formula to restore constitu- tional. government, worked out by an 'OAS Ad Hoc Commission, made considerable prog- ress. The inauguration of a civilian, Rector Garcia Godoy, as provisional president on September 3, 1965, was a major step toward the restoration of stability. State, 14-15. 1967: Syrian Coast In June of 1967, during the Arab-Israeli War, President Johnson ordered the U.S. 6th Fleet to move to within 50 miles of the Syrian Coast as a message to the Soviet Union it "would have to deal with us" if it entered the conflict. The action was taken as a coun- ter move against the Soviet Union after Premier Kosygin told President Johnson over the hotline that the Soviets had reached an "independent decision" that they were pre- pared to take "necessary actions, including military" to stop the advance of Israeli troops into Arab territory, and would give the Israelis just five hours to unconditionally halt their operations. Star, D-4; Johnson, 302. 1967: Congo In July, Lt. General Mabutu, who had now become President of the Congo, was chal- lenged by a revolt of about 170 white mer- cenaries and a few hundred Katangese troops. The Congolese army numbered around 32,000, but required outside logistical sup- port in order to crush the revolt. Responding to a direct appeal from Presi- dent Mabutu,, on July 8 the United States sent three C-130 military transport aircraft to the Congo, with their crews, to provide the Ceneral Government with "long-range logistical support." Approximately 150 American military - men arrived with the planes. The small American task force immedi- ately began to drop several plane loads of paratropers and their equipment and con- tinued to fly troops until November. On July 15, the first aircraft was withdrawn; on August 4, the second; and on December, the last. LRS, III. 1970: Cambodia From April 30 to June 30, U.S. troops at- tacked Communist sanctuaries in order to ensure the success of the program of Viet- namlzation. LRS, IV, 57. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14182 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July '0, 1973 1970: Jordanian-Syrian Crisis? On September 17, King Hussein of Jordan moved against Palestinian guerrillas in an effort to reassert the royal authority. Despite a warning by President Nixon, talking to newspaper editors in Chicago, that the U.S. might intervene if Syria orIraqu-threatened King Hussein's Government, some 300 Sy- rian tanks crossed into Jordan -during the next three days. Secretary Rogers con- demned the Syrian invasion and the U.S. called on the Soviet Union to use its influ- ence to persuade Syria to pull out. President Nixon moved the Sixth Fleet off the Israeli-Lebanese coast and publicity was given to the dispatch of the helicopter carrier Guam with 1,500 marines to join, the Sixth Fleet, to the alert of the 82d Airborne Divi- sion in Fort Bragg, N.C., and to the alert of two airborne battalions of the Eighth In- faastry Division in West Germany. At the same time the Israelis began E6 partial mo- bilization and movements of tanks toward the northern part of the Jordan River Valley in position to attack the Syrian invaders. The U.S. apparently was prepared to intervene militarily, in coordination with Israel, to prevent the overthrow of Ring Hussein's Gov- ernment and to rescue 38 American hostages known to be in the hands of Palestinian guerrillas. By September 22, Syrian tanks be- gan withdrawing and on September 25, the crisis ended when King Hussein and Yasir Arafat, the guerrilla chief, agreed on a cease- fire. N.Y. Times, Oct. 8, 1970, at 1, 12. 1842: Mexico. Commodore T.A.C. Jones occupied Monterey in the mistaken belief that war had started between the United States and Mexico. He withdrew and saluted, thereby disavowing his action. State, 18. 1857: Nicaragua. An American naval com- mander compelled the leader of a rebel group who was trying to seize Nicaragua to leave the country. The American commander's ac- tion was tacitly disavowed by the Secretary of State and apparently repudiated by Presi- dent Buchanan. State,+20. 1866: Mexico. After General Sedgwich ob- tained the surrender of the Mexican border town of Matamoras, he was ordered to with- draw and his act was repudiated by the President. State, 22. Late 1880's: Bering Sea. The United States paid nearly $500,000 to Britain In damages resulting from the seizure of British sealers by United States patrol boats outside the three mile limit. U.S., 586. 1893: Hawaii. On January 19, Marines from the schooner U.S.S. Boston landed at Hono- lulu and were dispatched until April 1 to protect American lives and property, after the deposition of Queen Lilluokalani. The action was later disavowed by the United States. LRS, III, 53. 1912: Honduras. A small naval force landed at Puerto Cortez to protect an American- owned railroad there. Apparently Washing- ton disapproved and the men were with- drawn in a day or two. State, 27. ' Eight military engagements which were subsequently disavowed or repudiated have been omitted from the above list of prece- dents. These are: 1812: Amelia Island, Spanish territory. United States dlsvawed General Matthews' occupation of the area when he made him- self the head of a revolutionary party. State, 16. 1824: Puerto Rico, Spanish territory. Com- modore Porter was later courtmartialed for exceeding his powers wheB he forced an apology from a group of pirates who had n- sulted American naval officers, State, 17. Sources for compilation 3 Acheson,, D,, Present at the Creation, 1967, (Cited as Acheson.) Barck, Wakefield, and Lefler, The United States A Survey of National Development, 1950. (C1t~d asU.S.) Berdahl,, C., War Powers of the Executive in the Unite States, 1921. (Cited as Berdahl.) Clark, James R., "Right to Protect Citizens in Foreign Countries by Landing Forces." Memorandum of the Solicitor for the Depart- ment of Mate, October 5, 1912. (3rd rev. ed. with snppl. appendix up to 1933) (Not cited, but used generally as cross-check.) Chadwick, F., The Relations of the United States and Spain, 1909. (Cited as Chadwick.) Corwin` President: Office and Powers (3d rev. ed. 1048). (Cited as Corwin.) Davids Jules, "The United States In World Affairs 1964." Council on Foreign Relations, 1965 (Cited as CFR, I) Dupuy and Baumer, The Little Wars of the United $'tates, 1968. (Cited as Dupuy and Baumer.) Ellsworth, Harry A., "180 Landings of Unit- ed States Marines, 1800-1934." Marine Corps Historical Section, 1934. (Cited as Ellsworth.) The Evening Star, Washington, D.C. May 12, 1971.E (Cited as Star.) Hacks'orth, 2 Digest of Int'l. Law, 1940- 1944. (Cited as Hackworth.) Library of Congress,. Legislative Reference Service. "A selected Chronology on Cuba, September 21, 1961-October 23, 1962." (Cited as LRS, I.) Library of Congress, Legislative Reference Service., "A Selected Chronology on Cuba, October 23, 1962-January 1, 1963." (Cited as LRS, II) Library of Congress, Legislative Reference Service.: "The Situation in the Congo." Jan- nary 22, 1968. (Cited as LRS, III.) Library of Congress, Legislative Reference Service. "Background Information on the Use of United States Armed Forces in Foreign Countries," 1970 Revision. (Cited as LRS, IV.) Moore, John B., 2 A Digest of Int'l. Law, 1906. (Cited as Moore.) The New York Times, October 8, 1970. (Cited as N.Y. Times.) Paulin, Charles 0., "Early Voyages of Naval Vessels to the Orient." United States Naval Institute Proceedings, V. 36-37 (1910-1911). (Cited'as Paullin, USNIP, 36-37.) Richardson, J., 7 A Compilation of the Mes- sages and Papers of the Presidents, 1897. (Cited as Richardson.) Rogers, James F., World Policing and _Me Constitution, 1945. (Cited as Rogers.) U.S. State Department, Historical Studies Division, Armed Actions Taken by the United States Without a Declaration of War, 1789--1967." Research Project No. 808A, August, 1967. (Cited as State.) United States Department of the Navy. "Summary of Wars/Near Wars Since 1946." 116 Con, Rec. 15712-15713, May 15, 1970. (Cited as USN.) United States Marine Corps, Historical Branch 1, "A Chronology of the United States Marine Corps 1775-1934," 1965. (Cited as USMC I.) United States Marine Corps, Historical Branch 2, "A Chronology of the United States Marine Corps 1935-1946," 1965. (Cited as USMC II.) United States Marine Corps, Historical 8 Only the primary sources are cited, al- though in several instances the summary was prepared from a composite of Information published in more than one of the sources re- ferred to herein. Branch 3, "A Chronology of the United Status Marine Corps 1947-1964," 1971. (Cited is USMC III.) United States Marine Corps Master rolls, available at Unit Diary Section, HQMC. (Cited as Master rolls.) Willoughby, W. W., 3 The Constitutional Law of the United States, sec. ed., 19i19,. (Cited as Willoughby, III.) Worsnop, Richard I., "Inter-American Peacekeeping," Editorial Research Reports, vol. 1, No. 23, June 23, 1965. (("dted as ERR.) B. Five U.S. military actions abroad uncle' a declaration of war War of 1812 (1812-I5) On June 18, Congress approved a declara- tion of war against England. The war was officially concluded by the Treaty of Ghent, December 24, 1814, but the Major battle of the war occurred with an American victory at New Orleans In January, 1815. War Between the United States and Me:dco (1946-48) Congress declared war on May 11, 1846.'The Treaty of Guadalupe Hidalgo ended the con- flict on February 2, 1848,, Spanish-American War (1898) On April 25, 1898, the United States de- clared war against Spain. The peace treaty ending hostilities was signed in Palls on December 10, 1898. World War I (1917-19) The United States declared war on Ser- many on April 6, 1917, and against Austria on December 7, 1917. The Treaty of Versidlles was signed on June 28, 1919. The treaty was never ratified by the United States. World War II (1941-45) The United States declared war on Japan, December 8, 1941, and on Germany and :Italy, December 11, 1941. The war ended in Europe on May 8, 1945. Japan signed the formal sar- render in Asia on September 2, 1945. C. Fifty major military actions for ;)road strategic aims 1798-1800: Naval War with France 't'he U.S. fought primarily for the protection of its free commerce. 1801-1805: War with Tripoli. The U .S. up- held its right of free commerce. 1814-1825: Caribbean Area. The U.S. sunk or captured 65 vessels to protect American commerce. 1815: Second Barbary War. The U.S. acted to provide effective protection to Amsracan commerce. 1844: Mexico. President Tyler deployrd our troops to protect Texas one year before annexation, 1846: Mexico. President Polk orderet, (Gen- eral Scott to occupy disputed territory be- tweeu the Nueces and the Rio Grande 1853-1854: Japan. Commodore Perm's ex- pedition of 2000 men and ten ships ad ranced American commercial interests. 1858: Cuban waters, President Buchanan ordered a naval force, to Cuban wavers to protect all vessels of the U.S. on the high seas from search or detention by the vessels of war of any other nation. 1864: Japan. U.S. Naval units parts+:ipated in a joint effort to force open the St:-aits of Shimonoseki for the free conduct of inter- national commerce. 1865-1866: Mexican border. General Sheri- dan and 50,000 U.S. troops backed up a de- mand from Secretary of State Seward that French forces withdraw from Mexico, 1869-1871: Dominican Republic. President Grant sent a strong naval force to protect the Dominican Republic daring his efforts to annex the island. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Jelly' 20,' 1973Approved For E99 /4F :REAE69075EM39M00700090010-9 S 14183 1888-1889: Samoan Islands, Germany and the United States were close to warfare due to their rivalry over naval privileges in the Samoans. 1899-1901: Philippine Islands. The United States used 128,468 troops aganist the Philip- pine insurrection in order to preserve and foster any rights it had acquired from Spain. 1900-1901: Boxer Rebellion (Peking). The U.S. sent 5000 troops and marines to relieve foreign legations in Peking and to keep open communication between Peking and the sea. 1903-1914: Panama. Marine guards landed and remained on the Isthmus to protect con- struction of the Canal. 1905-1907: Dominican Republic. President T. Roosevelt ordered the administration of the affairs of the Dominican Republic by the U.S. In implementation of the Monroe Doctrine, 1906-1900: Cuba. The U.S. temporarily oc- cupied Cuba to preserve order. 1912: Cuba. American troops remained three months to preserve order. 1915-1934: Haiti. U.S. troops occupied Haiti to forestall European intervention. 1016-1924: Dominican Republic. U.S. troops occupied Santo Domingo and sup- ported a military governor in the Dominican Republic. minican coast and Navy jet planes patrolled the shoreline to prevent a revolution in the Dominican Republic. 1962: Thailand. Some 5000 marines landed to support Thailand during- a threat of ex- ternal Communist aggression. 1962: Cuban Naval Quarantine. President Kennedy ordered a naval quarantine of Cuba to prevent delivery of additional Russian missiles and to obtain the removal of those already in Cuba. 1963: Haiti. A marine battalion was posi- tioned off Haiti when trouble developed there. 1964: Congo. A task force of four U.B. C-130 transport planes with paratrooper guards was sent to the Congo to provide airlift for the regular Congolese troops against a Communist-assisted rebellion. 1964-1973: Vietnam. American forces have acted to support freedom and protect peace in Southeast Asia. 1964-1973: Laos. The United States has supported the free government of Laos, par- ticularly with air missions. 1965: Dominican Republic. The threat of a Communist takeover and the need to pro- vide humanitarian assistance to the Domini- can people were major reasons for the American landings. 1917: Armed Atlantic Merchant Ships. Pres- 1967: Syrian Coast. During the Arab ident Wilson armed American merchant ves- Israeli war, the U.S. 6th Fleet moved to sels with guns and gunners assigned from within 50 miles off the Syrian Coast as a the Navy. sign to the Soviet Union it "would have to 1917: Cuba. Several American landings deal with us" if it entered the confict. were made to preserve order. 1967: Congo. A task force of three U.S. 1918-1920: Expeditions to Russia. The U.S. C-130 transports and 150 men ferried Con- contributed some 14,000 men to aid the anti- golese paratroopers in order to crush a revolt Bolsheviks and to forestall `Japanese expan- aganst Mobutu's government. sionist plans in Siberia. 1970: Cambodia. U.S. troops were ordered 1919: Dalmatia. U.S. troops were landed in into Cambodia to assist the program of Viet- order to police foreign territory during dis- namization. orders between the Italians and Serbs. 1926-1933: Nicaragua. The occupation of Nicaragua foiled the first attempt of Com- munism to infiltrate Latin America. 1927-1928: China. Nearly 6000 U.S. troops acted to help stabilize China. 1937-1938: China. Some 2500 marines helped preserve order in Shanghai under the International Defense Scheme. 1940: British possessions in Western Atlan- tic. U.S, occupied military bases on British soil to protect long range national security interests. 1941: Greenland. The U.S. Army occupied Greenland for the same reason as above, 1941: Iceland. U.S. troops occupied Iceland for the same reason as above. 1941: Dutch Guiana, American troops oc- cupied Dutch Guiana for the same reason as above. 1941: Atlantic convoys. U.S. warships were used to convoy military supplies to Britain and Russia. 1946: Trieste. President Truman reinforced V.S. troops along the Italian-Yugoslav border and dispatched naval units to the scene in order to resist the Yugoslav-Russian offensive against Trieste. 1946: Turkey. As a sign of U.S. determina- tion to resist'Soviet threats against Turkey and the Straits, President Truman sent a powerful naval force to Istanbul. 1946: Greece. During the attempted Com- munist takeover of Greece, U.S. naval units were sent at the request of the U.S. Am- bassador. 1950-1953: Korean War. U.S. forces acted to assist the Republic of Korea in order ''to 1970: President Nixon augmented and moved the Sixth Fleet off the Israeli- Lebanese coast in preparation to halt, if necessary, the Syrian invasion of Jordan and to rescue 38 American hostages. D. Eighty-two hostilities with actual combat or ultimatums 1798-1800: Quasi-war with France. 1800: West Indies. 1801-1805: War with Tripoli. 1806: Mexico. 1806-1810: Gulf of Mexico. 1814-1825: Caribbean area. 1815: Second Barbary War. 1816-1818: Spanish Florida. 1817: Amelia Island (Spanish 1820: West Africa. 1822: Cuba. 1823: Cuba. 1825: Cuban Keys. 1827: Greece. 1828: West Indies. 1830: Haiti. 1831-1832: Falkland Islands 1832: Sumatra. 1835: Samoan Islands. 1837: Mexico. 1840: Fiji Islands. 1841: Drummond Islands 1841: Samoan Islands, 1843: West Africa. 1845: African coast. 1846: Mexico. 1850: African coast. 1851: Turkey (Apparently no shots fired, but the force displayed amounted to a corn- restore international peace and security in pulsory ultimatum). the area." 1851: Johanna Island (East of Africa). 1853: China. 1957: Taiwan, U.S. naval units were dis- 1853: West Coast of Africa. patched to defend Taiwan. 1853: Smyrna. 1958: Lebanon. A primary purpose of using 1853-1854: Japan (Commodore Perry's ex- U.S. armed forces in Lebanon was to assist pedition including 10 ships and 2000 men Lebanon in preserving its political independ- conveyed an imminent threat of using force). ence. 1854: China. 1961: Dominican Waters. U.S. Navy ships 1854: Greytown, Nicaragua. took up positions three miles off the Do- 1854: West Coast of Africa. 1854: Okinawa. 1855: China. 1855: Fiji Islands. 1855: Uruguay. 1856: China. 1858: Fiji Islands. 1858: African coast. 1859: African coast. 1859: Paraguay (The Naval display of force amounted to compulsion). 1863: Japan. 1864: Japan. 1865-1866: Mexican border (General Sheri- dan and 60,000 American troops backed up the demand of Secretary of State Seward that French forces leave Mexico). 1867: Formosa. 1867: Nicaragua. 1870: Mexico. 1871: Korea. 1888: Haiti (American Commander issued an ultimatum threatening force if neces- sary). 1888-1189: Samoan Islands (Three powers had warships on the scene during an intense rivalry over claims in the islands. War was close when a hurricane destroyed German and American vessels). 1891: Bering Sea. V 1894: Brazil. 1899: Samoan Islands. 1900-1901: Boxer Rebellion (China). 1899-1901: Philippine Insurrection. 1910: Nicaragua (Armed combat was "hourly expected"). 1911: Honduras (The American Com- mander expressly threatened to use force if necessary). 1914: Dominican Republic. 1914: Occupation of Vera Cruz, Mexico. 1915: Haiti. 1916: Dominican Republic. 1916-1917: Pershing Expedition into Mex- ico. 1917: Armed Atlantic merchant ships. 1918-1919: Mexico. 1918-1920: Expeditions to Russia. 1926-1933: Nicaraguan occupation. 1927-1928: Armed actions in China, 1941: Atlantic convoys. 1946: Trieste. 1948: Palestine. 1950-1953: Korean War. 1962: Cuban naval quarantine. 1964-1973: Armed actions in Laos. 1965: Dominican Republic. 1964-1973: Vietnam War. 1967: Syrian coast. 1970: Cambodia. E. Ninety-Seven Military Actions Lasting More Than Thirty Days 1798-1800: Quasi-War with France. 1801-1805: War with Tripoli. 1806-1810: Gulf of Mexico. 1813-1814: Marquesas Islands (South Pa- cific). 1814-1825: Caribbean Area. 1815: Second Barbary War. 1816-1818: Spanish Florida. 1820-1822: West Coast of South America. 1823: Cuba. 1827: Greece. 1831-1832: Falkland Islands. 1835-1836: Peru. 1838-1839: Sumatra. 1843: West Africa. 1843: China. 1844: Mexico. 1846: Mexico. 1852-1853: Argentina. 1853-1854: Japan. 1854: China. . 1854: Okinawa. 1855: Fiji Islands. 1855: Uruguay. 1856: China. 1858: Cuban waters. 1858-1859: Paraguay. 1858-1859: Turkey. 1865-1866: Mexican border. 1866: China. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14184 Approved For gg /p6 FbOP A OOO70009OO1 QJVly X20, 1868: Japan. 1869-1871: Dominican Republic. 1873: Colombia. 1873: Cuban waters. 1873-1882: Mexico. 1885: Colombia. 1888-1889: Samoan Islands. 1891: Bering Sea. 1894: Nicaragua. 1894-1895: China. 1898-1899: China. 1899: Samoan Islands, 1899-1901: Philippine Islands. 1900-1901: "Boxer" Rebellion (Peking). 1901: State of Panama. 1902: State of Panama. 1903: Panama. 1903-1904: Abyssinia. 1903-1904: Syria. 1904: Dominican Republic. 1904-1905: Korea. 1906-1909: Cuba. 1907: Honduras. 1911-1912: China. 1912: Panama. 1912: Cuba. 1912: Nicaragua. 1913: China. L914: Haiti. 1914: Vera Cruz (Mexico). 1914-1915: Dominican Republic. 1915: Occupation of Haiti. 1916: Occupation of Dominicans Republic. 1916-1917: Pershing Expedition into Mexico. 1917: Armed Atlantic merchant ships. 1917: Cuba. 1918-1919: Mexico. 1918-1920: Expeditions to Russia. 1918-1920: Panama. 1920-1922: Siberia. 1922-1923: China. 1924-1925: China. 1924-1925: Honduras. 1926-1933: Nicaragua. 1926: China. 1927: China. 1936: Spain. 1937-1938: China. 1940: Occupation of British possessions in Western Atlantic. 1941: Occupation of Greenland. 1941: Occupattion of Dutch Guiana. 1941: Occupation of Iceland. 1941: Atlantic convoys. 1946: Trieste. 1948: Mediterranean. 1948-1949: China. 1950-1953: Korean War. 1954-1955: Tachen Islands (China). 1958: Lebanon. 1959-1960: Cuba. 1962: Thailand. 1962: Cuban naval quarantine. 1964-1973: Laos. 1964-1973: Vietnam. 1964: Congo. 1965: Dominican Republic. 1967: Congo. 1970: Cambodia. One hundred three military actions by the United States outside the Western Hemis- phere 1801-1805: War with Tripoli. 1813-1814: Marquesas Islands (South Pa- cific). 1815: Second Barbary War. 1820: West Africa. 1827: Greece. 1832. Sumatra. 1835: Samoan Islands. 1838-1839: Sumatra. 1840: Fiji Islands. 1841: Drummond Island (Pacific Ocean). 1841: Samoan Islands. 1843: West Africa. 1843: China. 1844: China. 1845: African coast. 1849: Smyrna (Now Izmir, Turkey). 1850: African coast, 1851: Turkey. 1851: Johanna Island (east of Africa). 1853: China. 1853: African Coast. 1853: Cmyrna. 1853-1$54: Japan. 1854: African coast. 1854: Okinawa. 1854: China. 1855: China. 1855: Fiji Islands. 1856: China. 1858: Fiji Islands. 1858: African coast 1858-1$59: Turkey. 1859: African coast. 1859: China. 1860: $issembo (West Africa). 1863: Japan. 1864: Japan. 1864: Japan- 1866: China. 1867: Formosa. 1868: Japan. 1871: Korea. 1874: Hawaii. 1882: Egypt. 1888: Korea. 1888-1089: Samoan Islands. 1889: Hawaii. 1894-1896: Korea. 1894: China. 1895-1$96: Korea. 1898-1899: China. 1899: Samoan islands. 1899-1901: Philippine Islands. 1900-1001:'Boxer" Rebellion (Peking). 1903-1804: Syria. 1903-1604: Abyssinia (Ethiopia). 1904: Morocco. 1904: Korea. 1911-1912: China. 1912: Turkey. 1913: China. 1916: China. 1917: Armed Atlantic merchant ships. 1918: China. 1918-1!920: Expeditions to Russia. 1919: Turkey. 1919: Dalmatia. 1920: China. 1920-1922: Siberia. 1922: Turkey. 1922-1923: China. 1924: China. 1924-1925: China. 1926: China. 1927: China. 1932: China. 1934: China. 1936: Spain. 1937-1938: China. 1941: Occupation of Greenland. 1941: Occupation of Iceland. 1941: Atlantic convoys. 1946: Turkey. 1946: Trieste. 1946: Greece. 1948: Palestine. 1948: Mediterranean. 1948--1949: China. 1950--1953: Korea. 1954--1955: Tachen Islands (China). 1956: Egypt. 1957: Indonesia. 1957: Taiwan. 1958: Indonesia. 1958: Lebanon. 1962: Thailand. 1964--1973: Laos. 1964-1973: Vietnam. 1964: Congo. 1967: Syrian coast. 1967: Congo. 1970: (Cambodia. 1970: Jordanian-Syrian Crisis. G. 81 MILITARY OPERATIONS ARGUABLY INITIATED UNDER PRIOR LEGISLATIVE AUTHORITY (NO DECLARATIONS OF WAR) Legisla- Year Military operations tion Treaty, 1798 to 1800--- Quasi-War with France- X 1801 to 1805___ War with Tripoli_______ X 1813 ---------- Spanish Florida------- X 1806 to 1810___ Gulf of Mexico________ X 1813 to 1814___ Marquesas Islands----- X 1814 to 1825___ Caribbean area -------- X 1815 ---------- Second Barbary War___ X 1817 ---------- Amelia Island --------- X 18201 --------- West Africa ----------- X- 1822--------- Cuba----------------- X 1823---------- Cuba-., -------------- X 1824 ---------- Cuba----------------- X 1825 ---------- Cuban Keys ----------- X 18272 ......... Greece--------------- X 18282 -------- West Indies___________ X 18322 --------- Sumatra -------------- X 18352 --------- Samoan Islands ------- X 1838 to 18392__ Sumatra -------------- X 18412 --------- Drummond Island----- X 18412________ Samoan Islands.------ X 184312 ........ West Africa ----------- X 1845, --------- African coast -------------------- X 1850 1.________ African coast____________________ X 1851 2--------- Johanna Island, east of X Africa. 1853, --------- African coast ----------- e_______ X 18541_________ African coast____________________ X 1854--------- Okinawa -------------- -------- X 18552--------- China---------------- X 1856---------- Panama------------------------ X 1858 1 --------- African coast____________________ X 1859'--------- African------------------------- X 1859--------- Paraguay----------------------- X 1860 --------- Panama---------------------- X 1864.---------- Japan-------------------------- X 1865---------- Panama------------------------ X 1867 2_________ Formosa______________ X 1868 --------- Columbia ----------------------- X 1870 --------- Mexico--------------- X 1873---------- Columbia__________________X 1885 --------- Panama---------------------- X 1888 to 1889___ Samoan Islands ------- X X 1891 ---------- Navassa Island, Haiti__ X 1894---------- Brazil---------------- X 1895 ---------- Panama------------------------ X 1899__________ Samoan Islands------- X X 1899 to 1901___ Philippine Islands_______________ X 1901 ---------- Panama------------------------ X 1902---------------do------------------------- X 1903--------------do-------------- ----------- X 1904---------------do------ - --------------- X 1906---------- Cuba----------- --------------- X 1911 to 1912___ China ------------- --------- X 1912 -------- Panama------------------------ X 1912---------- Cuba------------------------- X 1913 ---------- China------------------------- X 1914 ---------- Vera Cruz, Mexico ----- X 1916 ---------- Pershing Expedition X into Mexico. 1916---------- China-------------------------- X 1917---------- Cuba--------------------------- X 1918---------- China-------------------------- X 1918 to 1920___ Panama ------- -------- _-------- X 1920---------- China- --- ----- ------------- X 1921 ---------- Panama-Costa Rica______________ X 1922 to 1923___ China ------------------- .---- . X 1924---------------do------------------------ X 1924 to 1925___-China- _______________________ X 1925---------- Panama------------------------ X 1926---------- China-..------- -- ------------- X 1927---------- China----------- -------------- X 1932---------- China_---------- -------------- 1< 1933---------- Cuba-------------------------- X 1934---------- China----------------------- X 1937 to 1938___ China__________________________ X 1950 to 19533_- Korean War_____________________ X- N. Charter) 1957 ---------- Taiwan---- ------- X X 19584 --------- Lebanon Operation--__ X 19626_________ Cuban Naval Quaran- ---------- X (OAS) tine. 1962---------- Thailand ----------------------- X 1964 to 1973 --- Vietnam______________ X X 1964 to 1973___ Laos_________________ X X 1970 ---------- Cambodia ------------ X X 1 Indicates operation occurred under act of 1819 at truly of Aug. 9, 1842, with Great Britain, both relative to the suppr:ssion of slavery. 2 Indicates military activity may have occurred pursuant to broad interpretation of authority conferred by certain a+ts of Congress against piracy. See act of Mar. 3, 1819 (3 Stat, 510), act of Jan. 14, 1823 (3 Stat. 720), and act of Aug. 5, 1811 (12 Slat 314). 3 Though reliance was also placed on the U.N. Charter, the Truman administration based its authority to commit coops squarely on the President's independent constitutional authority. Rogers, discussion supra, footnote 55, at S7197. 4In fact President Eisenhower sent troops into Le1anon without seeking specific congressional approval and without specifically basing his authority on the 1957 Middle East Resolution. Id. 6 According to Secretary of State Rogers, "the Cuban R asolu- tion, unlike the other area resolutions contained no grunt of authority to the President." Id. - Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Judy -20, 1973Approved For LIO ~f 6 p WZ~EA@NJkW00700090010-9 5,14185 Mr. GOLDWATER. Mr. President, X understand the sponsors of S. 440 would refute my interpretation of the "declara- tion of war" clause as a weak power. I have described the declaration through- out this discussion as meaning no more than that Congress possesses the power to proclaim its purpose of bringing the total resources of the Nation into sup- port of an already existing war, or that Congress may by this method provide a way by which the United States could enter into "offensive war," such as might have existed if the United States had acted under the French treaty of 1793 to join France in war with Great Britain. In making the rebuttal, three points are raised. One is a quotation by Alex- ander Hamilton relative to the position of the President as Commander in Chief, the second is Thomas Jefferson's famous remark about the "Dog of War," and the third is a statement taken from the Civil War "Prize Cases." Mr. President, I wish to respond to each of these three points because they illustrate the misunderstanding which in my opinion exists among the sponsors of the legislation with respect to the true purpose of the Founding Fathers. First, let us examine the comment by Alex- ander Hamilton, in the Federalist No. 69, that the President's function as Com- mander in Chief is only one of "the su- preme command and direction of the military and naval forces." Now, I would ask, Mr. President, if this power alone is not enough to indicate that Congress cannot exercise policy control over the use of the Armed Forces? Certainly, there cannot be two supreme heads of the military and naval forces. As I have discussed earlier in the debate, Hamilton wrote in a later Fed- eralist Paper, No. 73, a clarification of exactly what he meant by professing that the President retains "the supreme command and direction" over the mili- tary froces. In Federist 73, he wrote: Of all the cares or concerns of government, the direction of war most peculiarly demands .those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and em- ploying the common strength forms a usual and essential part in the definition of execu- tive authority. In other words, Mr. President, Hamil- ton meant that the direction of military affairs must be managed by a single hand, not by 535 Members of Congress, in order that the Nation could act with promptness, directness, and unity of ac- tion. To argue, as the sponsors of S. 440 do, that Hamilton's mere reference to the declaring of war as appertaining to the legislature means that Congress was thereby given the sole power to go to war is to make an assumption about the whole meaning of the declaration clause which Hamilton himself never made. Second, I have heard reference made on many occasions by the sponsors of war powers legislation to a statement made by Thomas Jefferson in a letter he wrote to James Madison in 1789, wherein Jef- ferson stated that: We have already given in example one ef- fectual check to the Dog of War by transfer- ring the power of letting him loose from the Executive to the legislative body, from those who are to spend to those who are to pay. But Madison himself directly contra- dicted the implication which the sponsors of S. 440 are making from this sentence, which was written in the heat of a de- bate then occurring between Jefferson and Hamilton over the President's war powers. I would refer my colleagues to the Federalist No. 38, where Madison re- veals that the Framers had intentionally removed the direction of war from Con- gress, where it had been placed under the Articles of Confederation, because, in his words, it is- Particularly dangerous to give the keys of the Treasury and the command of the army into the same hands. In the Federalist No. 19, written by Madison and Hamilton jointly, Madison had also given evidence that the Found- ing Fathers did not intend to place the sole power to go to war in Congress. Here Madison clearly states that the Constitu- tional Convention had specifically re- jected as a political model, because of its inherent weakness, the example of a then current form of government used in Europe in which the Diet, or legislative body, was vested with the power to make or commence war. Madison wrote : Military preparations must be preceded by so many tedious discussions. That before the Diet can settle the arrangements the enemy are in the field. Mr. President, I also would like to ob- serve that a major change of view oc- curred in the position of Thomas Jeffer- son himself, who later openly admitted his earlier error in believing that the United States could check "the Dog of War" whatever the trend of world events elsewhere. In a letter which he wrote on March 2, 1815, Jefferson acknowledged: I had persuaded myself that a nation, dis- tant as we are from the contentions of Europe, avoiding all offences to other powers, and not over-hasty in resenting offence from them, doing justice to all, faithfully ful- filling the duties of neutrality, performing all offices of amity, and administering to their interests by the benefits of our com- merce, that such a nation, I say, nfight ex- pect to live in peace, and consider itself merely as a member of the great family of mankind . . . But experience has shown that continued peace depends not merely on our own justice and prudence, but on that of others also. Mr. President, this reflects the same practical attitude which guided the Founding Fathers in the formation of the new Republic. However much the Founding Fathers may have wished to live by a policy of avoiding foreign troubles, they recognized from having witnessed the great weakness in the management of military affairs by the Continental Congress, that the Nation cannot be safe unless there is a single Commander in Chief with an unre- stricted discretion to resist foreign dan- gers whenever and wherever they may exist. Third, the decision of the Supreme Court in the "Prize Cases" is relied upon as authority for the proposition that Congress may curb the Executive's commitment of military force. The de- cision involved the legality of President Lincoln's naval blockade against the Confederacy. The sponsors of S. 440 argue that since the Court declared that the President "cannot initiate war" this means he cannot go to war. Again, Mr. President, there is a total misreading of what the Court actually went on to hold. This bare statement is taken totally out of context, even though it was fully explained at a later point .in the Court's decision to mean exactly the contrary of what war powers advo- cates are now claiming it meant. In up- holding President Lincoln's right to meet the rebellion, the Court specifically said: If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. (emphasis added) 67 U.S. 635, 668 (1863). In my opinion, this case, far from in- dicating a superior role for Congress, means the Court has recognized a duty on the part of the President to answer threats against the Nation without wait- ing for Congress to baptize them as a declared war. In fact, the language of the High Court in the "Prize Cases" is taken by most constitutional scholars being . broad enough to constitute juristic justification of the many instances in our history in which the President has ordered belli- gerent measures abroad without a state of war having been declared by Congress. See, for example, B. Schwartz, "The Reins of Power," at 98 (1963). The "Prize Cases" also make the point, which I have raised throughout this de- bate, that the President does not "ini- tiate" war when he responds to foreign dangers. As John Quincy Adams re- marked in 1836, during his eulogy on the life of James Madison, "peace must be the offspring of two concurring wills." Adams explained: War is a state in which nations are placed not alone by their own acts, but by the acts of other nations. The declaration of war is in its nature a legislative act, but the con- duct of war is and must be executive. How- ever startled we may be at the idea that the Executive Chief Magistrate has the power of involving the nation in war, even without consulting Congress, an experience of 50 years has proved that in numberless cases he has and must have exercised the power. Mr. President, I do regret that I have to absent myself from the Chamber, but it is necessary. I do not think my being here is going to alter this decision one bit. I fully expect the bill to be vetoed, as I think it should be. I do not say this in a derogatory way. I still think it is a constitutional matter, not a legislative matter. I think it is very obvious that Members of this body-really have not studied it, with the exception of a hand- ful. It is a very interesting study. I have been at it myself for over 9 years, and as I have said on the floor time and time again, experts with whom I have dis- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14186 Approved For Release 2Q05106106 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20, 1973 cussed it, including every Secretary of State living, have convinced me that I am right, that the President does have the warmaking power under the ? Con- stitution, that the Congress right to declare war means nothing except to de- clare; and if you look it up- in the dic- tionary, it is a very weak word. Congress purposely was ?denied the right to have the country to war by the Constitution because of the terrible ex- periences that Washington had under the Continental Congress, when we near- ly lost that war because of the interfer- ences by Congress in the day;-to-day ac- tions on the battlefield, including the replacement of commanding generals, and so forth; and when the Constitution, was written, the Founding Fathers pro- vided that the President, as Commander in Chief-not specifically, I will admit that-would have command of the forces as well as all responsibility for enforcing the laws of the land. It gave to the Con- gress the right-in fact, the power-4o raise the armies and the navies, to pro- vide regulations for them, to provide weapons, and so forth and so forth, and also allowed them to call up the militia, which, if you will study that part of the Constitution, meant just that-the militia-in other words, the national police or the National Guard type of ac- tivity. But nowhere does it give it power to go to war. We can declare war every 5 minutes, but not one man will leave the shores of America until the Presi- dent says so. I know this legislation is designed to change that to some extent, but again I do not believe it is the proper way to approach it. In closing, I just wanted to again say I think it is very proper that this mat- ter has come before the Congress. It is not the first time. Almost- constantly during our 200 years as a Republic the matter has been under discussion- never as forceful as this discussion, nor has it ever reached the head that this has reached. I think it is wise that we have held these hearings and held the discussions on the floor, so that the American people might have a record of what we are talking about, and I would hope the American people- The PRESIDING OFFICER. The time of the Senator has expired. Mr. EAGLETON. Mr. President, I yield 1 minute to the Senator from Arizona.' Mr. GOLDWATER. Including the academics in this country and all men in politics can read what has been going on the floor here, I think they will have a very complete history. of what we are talking about and have a better un- derstanding in regard to what we did and in making any corrections__ that they may want to make. In closing, I thank the Senator from Missouri for yielding to me. Mr. MUSKIE. Mr. President, will the Senator yield? Mr. GOLDWATER. I yield. Mr. MUSKIE. First, I wish to express my regret that the Senator will not be here later, especially for the reason he has stated. I want to thank the Senator for his contribution to this issue. I have studied his statement before the com- mittee, and I have studied his statements on the floor. I know he has given a lot of time and study to the consideration of this issue. I think he has helped illumi- nate th issue in a very constructive way. I do not agree with many of the conclu- sions he has reached, but I wanted to take a moment to compliment him for his contribution. Mr. JAVITS. Mr. President, if the Senator will yield me 2 minutes in op- position, I would like to insert in the RECORD ' immediately after the argument by the Senator from Arizona, so that historians or others who read the RECORD may follow the argument carefully, first, an excerpt from the powers of the Presi- dent as,commander in chief asexplained by Alexander Hamilton in Federalist 69, which appears on page 11 of the commit- tee report in these words: The President is to be commander in chief of the army and navy of the United States. In this respect his authority would be nomin- ally the same with that of the king of Great Britain,'but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy, while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies-all which, by the Con- stitution under consideration, would apper- tain to the legislature 1s And then an excerpt from a letter of Jefferson to Madison in 1789: We have already given in example one effectual check to the Dog of war by trans- ferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay" Finally, the Supreme Court of the United ' States, in the "Prize Cases" of 1862, said: By the Constitution, Congress alone has the power to declare a national or foreign war ... The Constitution confers on the President the whole Executive power. . . Be is Commander-in-Chief of the Army and Navy of' the United States. . . . He has no power to initiate or declare a war either against a foreign nation or a domestic state. 's Mr. 1l:AGLETON. Mr. President, I am prepared to yield back the remainder of my time on amendment No. 364. Mr. 1' IUSKIE. Mr. President, I think the amendment has been sufficiently dis- cussed. I am prepared to accept it. The Senator from New York has indicated he is willing to accept it. I yield back the re- mainder of my time. The PRESIDING OFFICER. The ques- tion is on agreeing to the amendment of the Senator from Missouri (No. 364) put- ting the question). The amendment was agreed to. Mr. EAGLETON. Mr. President, pur- suant to the previous order, is my next amendment the pending business? The PRESIDING OFFICER. The Sen- ator is! correct. The clerk will report amendment No. 365. The legislative clerk proceeded to state the amendment. Mr. $AGLETON. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: On page 4, line 22, strike out the words "Specific statutory authorization is required for" and insert in lieu thereof the following: "For purposes of this clause (4), 'introduc- tion of the Armed Forces of the United States' Includes". Mr. EAGLETON. Mr. Presidn:t, amendment 365 is intended to correct a drafting error in section 3.4. That sec- tion contains a provision Which requires statutory authorization to assign mem- bers of the Armed Forces to command or coordinate, et cetera, foreign military forces. Immediately following this pro- vision is another which sets forth the limitations on present treaties and cur- rent provisions of law. This provision reads as follows: No treaty in force at the time of the en- actment of this Act shall be construed as specific statutory authorization for, or a ,pe- ciflc exemption permitting, the introduction of the Armed Forces of the United States in hostilities or in any such situation, within the meaning of this clause (4); and no pro- vision of law in force at the time of enact- ment of this Act shall be so construed ur.less such provision specifically authorizes the in- troduction of such Armed Forces in hoe tili- ties or in any such situation. The language in this provision refers back to the language in the introduce ory sentence of clause (4), but does not pick up the separate provision which concerns the assignment of members of the Armed Forces to advise foreign military forces. The effect of the failure to pick up this language is that treaties and proves ons of law in force on the date of enactment are subject to being construed as author- izing the assignment of members of the U.S. Armed Forces as advisers to foreign military forces who may be engaged, or there is an imminent threat that they may be engaged, in hostilities. To correct - this drafting error the words, "Specific statutory authorization is required for" at the beginning of the "advisor" provision, are striken by my amendment and the following phrase is inserted: "For purposes of this cli.use (4), 'introduction of the Armed Fo.-ces of the United States' includes" This change ties the "advisor" provis- ion to the language used in the subse- quent provisions concerning treaties and current provisions of law, as well as to the introductory sentence in clause (4), thereby assuring that all reference:; to the introduction of the Armed Forces of the United States will be tied in and en- compass the assignment of U.S. advt;ers to foreign military force. Mr. President, this amendment does not change the original intent of the sponsors, it simply makes that intent clear in legislative language. Mr. MUSKIE. Mr- President, thi> is another amendment which represent; an improvement in drafting. I think it more clearly reflects the purpose of the :nec- tion of the bill to which it relates. I am prepared to accept the amendment. Mr. JAVITS. Mr. President, the Fur-. pose of the bill is to make the whole clause four applicable without question. In the drafting originally we believed that by repeating the words with w.ich the clause opened-"pursuant to specific statutory authorization,"-we were do- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved ForLBI % J/f 6 e P7 EigjLWO00700090010-9 S 14187 Ing exactly that. I still believe that is the case. However, the Senator from Mis- souri (Mr. EAGLETON) suggests that is not necessary for clause four. He feels that we should make the words of clause four applicable to this particular situation which relates to participation in the ways described, to the military forces or the use of the military forces in another country. I see no objection to it whatever. Draftsmen have a lot of choices of this kind. The Senator from Missouri has contrbuted so much that I defer to his judgment on this matter. The amend- ment is a drafting, "perfecting" amend- ment and it is acceptable. Mr. MUSKIE. Mr. Presiden, I yield back the remainder of my time. Mr. EAGLETON. Mr. President, I yield back the remainder of my time. The PRESIDING OFFICER. All time has been yielded back. The question is on agreeing to the amendment of the Sena- tor from Missouri (putting the question). The amendment was agreed to. Mr. EAGLETON. Mr. President, I call up my amendment No. 366. The PRESIDING OFFICER. The clerk will report the amendment. The legislative clerk proceeded to state the amendment. Mr. EAGLETON. Mr. President, I ask unanimous' consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: On page 9, line 15, after the period, add the following: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostili- ties in any foreign country; or (b) advising any regular or irregular military forces en- gaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act. UNANIMOUS-CONSENT AGREEMENT Mr. ROBERT C. BYRD. Mr. President, will the Senator yield to me for a unani- mous-consent request? Mr. EAGLETON. Mr. President, I yield to the Senator from West Virginia. Mr. ROBERT C. BYRD. Mr. President, I have cleared this request with the dis- tinguished manager of the bill, the Sena- tor from Maine (Mr. MusxIE), the dis- tinguished Senator from New York (Mr. JAVITS), the distinguished majority leader, and the distinguished author of the bill. I ask unanimous consent that the vote on this amendment occur at 12 noon today and that the vote which was pre- viously scheduled on passage of the Dis- trict of Columbia appropriations bill for 12 noon today now be scheduled for 12:15 p.m. In other words, they will be back to back and the vote on the District of Columbia appropriations bill will im- mediately follow the vote on the Eagle- ton amendment. The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered. Mr. JAVITS. Mr. President, if the Senator will yield, I do not want in any way to rush the Senator. However, I won- der if the Senator from Missouri could perhaps tell us whether this is the final amendment that he will be calling up. Mr. EAGLETON. Mr. President, I have one other amendment contemplated. However, this is the last amendment that I have that is of any great substance. Mr. JAVITS. Mr. President, I thank the Senator. Mr. EAGLETON. Mr. President, the bill before the Senate, S. 440, is entitled "The War Powers Act." But according to its preamble, S. 440 does not cover all of the warmaking alternative available to the President. It is intended only to "make rules governing the use of the Armed Forces of the United States." The purpose of the amendment I pro- pose today is to assure that the war powers legislation passed by the Senate is as all-inclusive as its title implies. My amendment would circumscribe the Pres- ident's use of American civilian com- batants in the same manner uniformed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either di- rectly or as advisers, in a hostile situa- tion without the express consent of Con- gress. It would also restrict the practice of employing regular or irregular foreign forces to engage in "proxy" wars to achieve policy objectives never specifi- cally approved by Congress. If adopted, my amendment would make S. 440 a comprehensive legislative mechanism capable of dealing with each of the options available to the Presi- dent to involve our Nation in hostilities. I would like to emphasize at the out- set that I bear full responsibility for the deficiency in S. 440 that I have just de- scribed. My own war powers bill (S.J. Res. 59) was also deficient in this respect and the compromise bill introduced by Senators JAVITS, STENNIS, and me, was passed last year with my full support, and it likewise contained no reference to paramilitary forces. I am, therefore, moving belatedly but with good cause, to correct what I believe to be a major loophole in S. 440. A few weeks ago Director-designate of the Central Intelligence Agency Wil- liam E. Colby testified before the Sen- ate Armed Services Committee with re- spect to his pending nomination as Di- rector of the CIA. One sentence used by Mr. Colby in his testimony influenced me more than any other to take the action I am taking today to amend S. 440. In explaining the CIA operation in Laos, Mr. Colby said: It was important that the U.S. not be officially involved in the war. Mr. President, I think that bears re- peating. Mr. Colby pointed out to the Armed Services Committee that in his judgment it was important that the United States not be officially involved in the Laos war. It was all right to be in the war, but we should not be officially involved in the war, and no one should know much about it. But, of course, the United States was heavily involved in the war in Laos. We must therefore, ask, why was it so im- portant that the United States not be officially involved? Was it because we did not want the enemy to know? Or was it because Presidents Kennedy, Johnson, and Nixon did not want Con- gress and the American people to know? We know much more today about our military involvement in Laos, thanks in large part to the excellent work of my distinguished senior colleague from Mis- souri, Senator SYMINGTON, and we learn more each day. Recent testimony before the Armed Services Committee revealed that we were bombing in Cambodia and Laos long before such bombing was ac- knowledged by the White House. And how much more remains to be revealed of our tragic involvement in Indochina? I am deeply concerned that Mr. Colby's statement would have even more appeal to Presidents were the Senate to pass this legislation without the pending amendment. I fear that Presidents, de- siring to pursue what they would ra- tionalize to be limited policy objectives, would be encouraged to avoid the proce- dures established in S. 440 in favor of covert operations-operations which would assure that "the United States not be officially involved." The concept of this amendment is really very simple-it is an attempt to make the language of legislation match the realities of war. To anyone engaged in a combat operation, it is irrelevant whether they are members of the Armed Forces, military advisers, civilian ad- visers, or hired mercenaries. The conse- quences are the same-they can kill, and they can be killed. American involvement in hostilities cannot be obscured by semantics. If we become involved in combat to pursue a policy objective other than the emer- gency defense of the United States, its forces or its citizens, then Congress should authorize that involvement. Either we are involved in hostilities or we are not involved. And that should be the operating principle of the War Powers Act. Our concern over the error of our in- volvement in Indochina has led us to carefully examine the origins of that ex- perience. And it has not been easy to find the beginning of that episode of American history. ' There was no Pearl Harbor to signal the beginning of the Vietnam war. There was no major attack such as the attack on Fort Sumter. There was no sinking of the Maine. There was only a gradually escalating involvement-an involvement which grew out of a political commit- ment and a mostly covert effort to ful- fill that commitment. We should have learned by now that wars do not always begin with the dis- patch of troops. They begin with more subtle investments ... of dollars and ad- visors and civilian personnel: In the case of Laos, our involvement began with a large group of CIA advisors who organized indigenous Laotion forces to engage in hostilities in pursuit of policy objectives established by the exec- utive branch of the U.S. Government. Although the exact date remains clas- sified, the CIA began to organize and advise MGo tribesmen in Laos sometime Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14188 Approved For ' ,W 5ER 00700090010-July prior to 1961. This advisory role con- tinued after the 1962 accords which os- tensibly reaffirmed the neutxnlity of Laos and divided political control of that country among the warring factions. In testimony before the Symington Sub- committee on U.S. Security Agreements and Commitments Abroad, former Am- bassador to Laos William SuDivan argued that our clandestine involvement in the Laotion hostilities was "to attempt to preserve the substance of the 1962 agree- ments." It is not my intention today to ques- tion the merits of the policy-Ambassador Sullivan was attemptnig to justify by his statement. I am simply advocating that the President present his justifica- tion to Congress, and that he request specific statutory authorization before he pursues a policy objective by means of force. The Indochina experience has shown us the frightening potential of covert American forces. It is now known that an elaborate program of covert military operations, under the code name Oper- ation Plan 34A, was initiated by Presi- dent Johnson in February, 1964, and that that program may have led to what was called a provocation strategy, or a plan to provoke the enemy into provid- ing a pretext for bombing North Viet- nam. Operation Plan 34A was implemented in Laos as well as Vietnam.:'But in Laos there was a slightly, different ingre- dient-civilian pilots under contract to the CIA-associated Air America partic- ipated with the Royal Laotion Air Force in an extensive air operation against the Pathet Lao. U.S. Air Force planes also began op- erations over Laos in 1964, bjit they were arriving on the scene more than 3 years after the CIA had first introduced the United States into that hostile situation. Mr. President, there is a$ old saying out in my part of the country that from little acorns big oaks grow. The same thing is true with respect to war: from little involvements-little CIA wars- big wars grow. That is why it is impor- tant to consider carefully very aspect of a measure labeled a "War Powers Act." What we are trying to do is refurbish the process by which America goes to war-trying to restructure it, so that it is no longer the decision of dne man who happens to occupy 1600 Pennsylvania Avenue. And so that when Americans, whether wearing a uniform or not, are sent into hostile situations around the world, Congress will have a part in the decision. The purpose is to see that the U.S. Congress, under its constitutional mandate, will share and participate in that decisionmaking process--the proc- ess to determine how, where, and when we go to war. That, in essence, Mr. Presi- dent, is what S. 440 is all about. To leave out of that measure the clan- destine operationsthat a President may wish to carry out by using CIA or civil- ian personnel is to leave an enormous loophole that, in my judgment, if this, bill becomes law, will lead to heartaches in years to come; because I think that Presidential warmaking in the future will beiconducted just through this loop- hole. I' am not sure whether it will hap- pen next month or next year, in Berlin or in the Philippines. Am ssador Sullivan is now about to go tot a Philippines as our new Ambas- sador there. After his warmaking expe- rience in Laos, he may have an oppor- tunity 1in yet another country torn by internal strife to practice his talents. And if! S. 440 becomes the law without including the civilian as the combatant, how many hundreds of people, on the CIA payroll, bearing arms, engaging in combaor advising in combat situations, may ultimately go to the Philippines? I hope none. I hope we never send another American as a military adviser into a civil war anywhere in the world. But I am not confident that I can say that here today. I am not confident that even the bitter experience that we have had in Vietnam, Cambodia, and Laos was such as to prevent us from the future exercise of folly. The pitch may be made to whoever is then the President of the United States,, "Well, we cannot permit this country to 'fall'; we cannot permit good old Lon Nol to fall." We have to get rid of his brother; we send him on a world cruise, and we are about to send Lon Nol himself on a sabbatical to the United States.' I do not know how many people have to be removed from Cambodia to prevent that government from falling. That is a curious way, I might say par- enthetjcally, to prevent a government from f ]ling, by ousting the government. But that is diplomacy American style. I and not so sure we have permanently learned our lesson in Southeast Asia, and unless ,we plug this loophole and unless we treat all Americans in military situa- tions alike, whether they are wearing a green uniform, red-white-and-blue, or a seersucker suit with arms-what payroll you are on is really secondary; whether you get it from the Pentagon or whether you become. a member of the Armed Forces, the end result is the same: Amer- icans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commit- ment to war. Remember well the word "commit- ment." A few Americans are captured and made prisoners of war in country x in the world, whether called Sergeant Jones or CIA Agent Jones. Then it be- comes "a commitment" and the whole bloody business starts again and again. Mr. President, I do not wish to dwell on the Indochina experience, but we cannot ignore its lessons. We cannot ig- nore the obvious implications of the cov- ert activity in Indochina prior to the Gulf of Tonkin Resolution. We cannot ignore the possibility that Congress may have been deliberately hoodwinked into authorizingthe Vietnam war by a "prov- ocation strategy" implemented in large part by civilian combatants and advisers. The potential for use of covert civilian forces by a President to achieve military objectives is presently restricted only by the imagination of man. We have already seen CIA personnel used as pilots and combat adviser. And if we fail to pass this amendment, we may see an even 20, 1973 more wide-ranging use of civilian com- batants in lieu of uniformed personnel whose activities will be circumscribed by this bill, if it is enacted in, its present form. In drafting this amendment I have taken care to avoid restricting the Intel- ligence-gathering mission of the CIA a necessary and proper function. in: most cases U.S. Government personnel may be required on occasion to accompany foreign military forces to observe--heir activities and report on them. My amendment would not prohibit such activity. It would only prohibit civilian personnel from active involvement in hostilities or from performing an ad- visory function with forces engaged in combat. Mr. President, the principle I am advo- cating today was expressed most elo- quently by Senator SYMTNGTON when, commenting on the secret war in Laos, he said: Under our form of government, no natter what the nature of the enemy, without pub- lic support no Administration should wage a foreign war. To deny there is fighting is a travesty, for not only the enemy but also the American participants, including those who are casualties ... know the truth. Mr. President, the truth about ou^ 'in- volvement in Indochina has only recently been revealed to the American people. And one aspect of that truth now ac- knowledged is that many of the Anieri- cans involved in Indochina were civi.ians participating in covert paramiLtary operations. It is time for Congress to acknowledge the vast potential available to the Presi- dent to expand his warmaking op ;ions beyond the scope we have thus fai en- visioned for S. 440 if he decides to use civilian combatants rather than military combatants. It is time to acknowledge that Presidents will be encouraged to use these options if we fail to circumscribe them. That is why I urge my colleagues to give the war powers bill before us today the comprehensive character that will make it worthy of its title by adoption of the amendment which I have introduced. Mr. JAVITS. Mr. President, will the Senator from Maine yield? Mr. MUSKIE. I yield. Mr. JAVITS. I suggest to the mar ager of the bill that it might be well to sound the quorum bell. This is, really, provably the most important amendment tc the pending bill that will be debated today, so that perhaps we can agree to hE,ving the time not charged to either side for the quorum call, in order to let Senators know what is actually going on. Mr. MUSKIE. Mr. President, I ask unanimous consent that I may suggest the absence of a quorum with the time not to be charged to either side. The PRESIDING OFFICER (Mr. ALLEN). Without objection, it i,i so ordered. Mr. MUSKIE. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The second assistant legislative clerk proceeded to call the roll. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 19, 7' pproved For Rt ARq ~41: C~# 7j5B~0700090010-9 S 14189 Mr. MUSKIE. Mr. President, I ask author of this bill, his views deserve par- Rather, the amendment goes to the unanimous consent that the order for the ticular consideration and respect. I am causes of war and what brings them quorum call be rescinded. in accord with his broader purpose in about, in an effort to abate those influ- The PRESIDING OFFICER. Without proposing this amendment, but I dis- ences or to abort, in its infancy, a situa- objection, it is so ordered. agree simply with his tactics in offering tion which may lead to war. Mr. MUSKIE. I yield myself 5 minutes. it to this bill. That is the essence of my position. Mr. President, I oppose, with some re- As for the amendment to the bill, I There are other points which are prac- luctance, the amendment of the distin- should like to see the bill supported by tical in nature; but essentially I think guished Senator from Missouri (Mr. the Senate today so strongly as to give the gift which we all brought to the bill EAGLETON) to broaden the definition of pause to the President if he considers a was to keep it methodological. The fact "Armed Forces" beyond the original veto. So I should like to see maximum is that if the Constitution had antici- Intent of the war powers bill. support mobilized behind it for that rea- pated the situation as it has now devel- Senator EAGLETON'S amendment would son, and preserve the bill as it is, rather oped, Presidents would not have done bring under the provisions of this act- than to jeopardize it with a major change what they have done, in my judgment, Any person employed by, under contract at this time. for almost 200 years. Congress would not to, or under the direction of any department I yield to the distinguished Senator have permitted its war power to be eroded or agency of the United States Government from New York (Mr. JAVITS) such time as and we would not have the situation that who is either (a) actively engaged in hos- he may need. arose in the Vietnam war. With respect tilities in any foreign country; or (b) advis- Mr. JAVITS. Mr. President, like the 'to the Gulf of Tonkin, in which Con- ing any regular or irregular military forces distinguished manager of the bill (Mr. gress had joined, there was a dispute over engaged in hostilities in any foreign coun- try. MUSKIE), I have given most respectful the resolution whereby the President was thought and attention to the amendment given a general power of attorney, as it The purpose of this amendment-a which the Senator from Missouri (Mr. were, when the Congress thought it was purpose which under other circumstances EAGLETON), one of the principal sponsors giving a limited, specific power of attor- I would strongly support-is to give the and architects of the bill, has proposed. ney with respect to a particular Incident Congress greater control over the para- ' I must oppose the amendment for the alone. military activities of the Central Intel- reasons stated by the Senator from One big fallacy creeps into the argu- ligencn_A=y. The secret war in Laos Maine (Mr. MUSKIE), which I endorse, ments of so many opponents, including has been an instructive example for us and also for certain other reasons which the Senator from Arizona (Mr. GOLD- all. The fundamental and original mis- are inherent in the problems raised by WATER). They have an idea thab the only sion of the Central Intelligence Agency the amendment. way Congress can "declare war" is by was to provide our Government with ade- I wish to recall to the Senate that this passing a "declaration of war" resolu- quate intelligence to protect our Nation's bill has been properly put before the Sen- tion in both Houses of Congress some security. ate previously and again now, not as dark and tragic afternoon which says, This purpose has now been expanded changing this body's constitutional au- "We hereby declare war on Hitler's gov- to include a range of dubious covert ac- thority, not, indeed, as changing substan- ernment." Not at all. There is no such tivities up to and including the secret war tive law, but as a methodology in an area provision in the Constitution that so in Laos. where no methodology has existed before, limits or specifies the power to declare I believe it is urgent for Congress to and where, as has been argued, the war. We can exercise it any number of review very carefully the role of the Cen- rough interplay of political forces is sup- ways, so long as we do so by law. tral Intellgence Agency and to scrutinize posed to bring about some kind of rough These are reasons why it was neces- the adequacy of existing legislation con- resolution of what was unforeseen in the -nary to define by methodology how we cerning the QIA._ I am pleased, therefore, Constitution. I believe the best hope for should exercise our power and the Presi- that Senator TENNIS has indicated that this legislation resides in keeping it as a dent should exercise his power. This has the Armed Services Committee, which methodological bill, emerged as an unsettled question in the has jurisdiction over the Central Intelli- The methodology of the bill Is of pro- twilight zone of the Constitution, which gence Agency, will conduct a thorough found importance to our Nation; pro- we no longer wish to leave to the inter- review of these matters. Questions as to cedure-or "due process"-is the bedrock play of political forces. the proper role and function of the-IA of freedom and democracy. At the same However desirable the Eagleton and where the line should be drawn be- time our methodology is "neutral" on the amendment may be on substantive, pol- tween legitimate and illegitimate activi- substantive issues which are to be con- icy grounds, it is out of place in this bill. ties are extremely important and deli- sidered and decided in terms of the "due The Armed Services Committee-and cate-and they should be examined as process" we are establishing by this leg- here the Senator from Mississippi (Mr. thoroughly as possible. I think we need islation. In effect, we are herein estab- STENNIS) is on impregnable ground be- new legislation to define more strictly lishing that our Nation can be taken into cause the Committee on Armed Forces CIA functions and to insure a sufficient war only through "due process." This is a does have jurisdiction-should take it up congressional role in overseeing and con- major reform, in light of the experience as substantive legislation. If this amend- trolling_ClA activities. of the last decade. It. is a major new pro- ment should become part of the war Such a review should take place in ac- tection for our citizens, just as the pro- powers bill because the Senate thought it cordance with the normal legislative pro- tection of "due process" is for them with desirable to go with the Eagleton amend- cedures of the Senate. I do not believe it respect to criminal law, et cetera. Some ment, it would complicate the question is appropriate to raise this matter on the of our colleagues wish to write in sub- of conference, as to putting together a floor in connection with this particular stantive policy proscriptions on sensitive conference committee on the part of the bill. The war powers bill has been in the issues-usually the still raw issues of the Senate which would be truly representa- making for several years. All its provi- past decade. As much as I may, and do tive of those with the greatest expertise sions have been thoroughly considered agree and sympathize on the substantive and the appropriate committee of au- and debated in public hearings, in com- questions, they are not appropriate in a thority in the CIA field. mittee, and on the floor of the Senate. bill which is establishing methodology, or The Senator from Missouri (Mr. Broad Senate support for this bill- due process with regard to going to war. EAGLETON) has already won a consid- across party and ideological lines-has Regretfully, because I happen to agree erable victory in that the Senator from been built upon a delicate balance of in- with the Senator from Missouri and the Mississippi (Mr. STENNIS) said in his terests and concerns. I do not think it is Senator from Maine, these arguments, letter that he is sympathetic to the thrust wise at this late date to consider a major factual policies, and declarations, involy- of the Eagleton amendment; that he is new provision to this bill which now ing what are called the continuum, in considering and the Committee on Armed comes almost as an afterthought to sev- short, which little incidents lead to war, Services will work up some way to deal eral years of intense deliberation. find no place in the bill, because this with CIA, based on the revelations we The distinguished Senator from Mis- is a substantive question. It is not a mat- have haff The Eagleton amendment un- souri has made an invaluable contribu- ter of establishing a method by whit doubtedly will have very high priority tion to the writing of the war powers both Congress and the President may ex consideration, as it should. bill from the beg * eOasciMO01M6/0* ; WiSBD RM7 @O9?O1 Mto the text of the Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14190 CONGRESSIONAL RECORD - SENATE July 20, 1973 Eagleton amendment, now we become lawyers and take a look at it. Here again, there are problems. I would like to point out the defined parameters of the Eagleton amendment: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government. That could include almost anyone; it is not confined to the CIA. Indeed, it is difficult to say what thelIItrits of its cov- erage may be. Later on, I will explore whether it would cover foreign nationals, and particularly foreign nationals who may be covert intelligence agents of the United States. For instance, would Colo- nel Penkovsky, who was a member of the Soviet military and who provided so much key intelligence to the CIA right out of the Kremlin, the Sovie e-neral Staff, would he have been covered? Lots of things lead to war. A man on horseback may lead to war; national hatred could lead to war; anything could lead to war. We cannot deal with all those subjects in this bill. Another important consideration is that there outside the Armed Forces, was are covered by the bill, is no agency of, the United States which has any ap- preciable armed forces power, not even the CIA. They might have some clandes- tine ag'Mts with rifles and pistols engag- ing in dirty tricks, but there is no capa- bility of appreciable military action that would amount to war. Even in the Lao- tian war, the regular U.S. Armed Forces had to be called in to give air support. The minute combat air support is re- quired you have the Armed Forces, and the bill becomes operative. A key control which would not be reached by this amendment even if it could, would be control of the use of money. The fact is that vast sums of money were given to Vang Pao in Laos to pay for mercenary Moo army. The use of Air America, which was a logistical operation, and not a combat operation, presumably would not be reached by the amendment along Again, this is beyond the ambit of this bill. The matter was so eloquently and pre- cisely put by the Senator from Maine (Mr. Mussels) in what he said in respect of the amendment. It simply does not fit within this context, and considering the historic nature and importance of the context we should not burden it with substantive questions which in addition to all other points made are within the jurisdiction of another legislative standing committee, to wit, the Com- mittee. on Armed Services; and where we are not faced with any question of avoiding the issue, but have the word o'f' a man 'whose word rings as true around here as that of any Senator of the United States, and that is that he proposes to deal with the question. One other point which is interesting: I, too, have talked with the Senator from Mississippi (Mr. STENNIS) at length. He was very relucant to make this expres- o,nn nn +hi,, nnrtinnlnr nn,onAmant. hn- that kind could and would be fully consid- ered by the Committee at that time. I could support some major points In that particular amendment as a part of a bill on the subject, but fully oppose the amendment presented as a part of the War Powers Bill. The bill now before the Senate, as finally written and improved by the Foreign Rela- tions Committee, is an excellent bill and is confined to the Constitutional subject of ac- tually committing the nation to war. I believe this bill, if confined to its proper subject matter will pass the Senate by a large vote and will emerge from the Conference Committee as a bill with meaning. There are reports, which I hope are erroneous, that a veto is in prospect if this bill passes. If so, I feel so strongly that a meaningful bill relating to the War Powers, and the, responsi- bilities of the President and the Congress, should be passed, and I would strongly urge that that bill pass, the veto notwithstand- ing. If we clutter the War Powers Bill with other matters we would probably kill what is otherise a good chance to override a pos- sible veto. Again, I certainly wish you well, and hope the Committee bill in its present form can uaubu liD 1011, 411141, 110 wall Urt1 11v +GC1- large vote. ing here in the Senate that he was try- Most sincere yours, ing to have his voice carry Senators JOHN C. STENNIS, to debate and cross-examinawvn. But, I would agree that this is an extraor- think the Senator from Maine (Mr. dinarly strong commitment from the MusxIE), and I prevailed on him to feel Senator from Mississippi. To have an- that as he had used his privilege very ticipated a veto, and to have indicated sparingly and he had this bill so close to with such vigor his intention to press for his heart, this was a measure in which an override, I think is the kind of action that was deserved, and I am glad to say the Senator from Mississippi would he acted accordingly. rarely take. It is because of his voice, and Mr. MUSKIE. Mr. President, I yield that of the Senator from New York, and myself 2 minutes. my own understanding of the forces that Reference has been made to communi- went into putting this bill together, that cation with the Senator from Mississippi I reluctantly oppose the amendment of (Mr. STENNIS), and as the Senator from the distinguished Senator from Missouri. New York (Mr. JAvrrs) has explained, Mr. EAGLETON. Mr. President, I yield the Senator from Mississippi was very myself such time as I may consume. reluctant to appear to be trying to in- I sat here and listened with deep inter- fluence votes here when he could not est to the comments of both the Senator participate personally. But we prevailed from Maine (Mr. MusxiE) and the Sen- upon him, and I take the opportunity to ator from New York (Mr. JAVITS). They read that letter into the RECORD: are both men of extraordinary capability it was a key factor ilk CA involvement in JULY 19, 1973. the secret war in Laos. lion. EDMUND S. Mussels, Finally, one point of draftsmanship. M.S. Senate, _ It will be noted the amendment starts out with the language, "Any person em- ployed by." That includes a foreign per- son, as well. There are many clandestine agents who are foreign and employed by, in the sense of being financed, main- tained by, and directed by Department of the U.S. Government, which is one of the facts of life. Are they covered by this bill? If they are clandestine agents who are members of foreign armies does this amendment apply? Suppose a mem- ber of the Soviet or Chinese, or Vietcong armies is a }CIA "controlled American source," does this amendment apply if his unit goes into hostilities? Substantive law can determine what activities can be engaged in with respect to foreigners in terms of pay, and so forth. Law can determine that, but it Is hardly a methodology. You would be dealing there with substantive ap- proaches to the law. Shall the United States employ foreign citizens for these purposes? If It how are they a s d61~ yg zaX~; a-r a o i~i:1M DEAR ED: If I could be on the Floor, I would support you fully as you push for the passage of the War Powers Bill, as reported by the Foreign Relations Committee, with- out further amendments of any substance. One amendment of substance is by the Senator from Missouri, Mr. Eagleton, who has done much work and has made a fine contribution to this important bill as it now stands. This amendment has a prohibition of using the C.I.A., or its funds, in war activi- ties of the type we have used in Laos. The experience of the C.I.A. in Laos, as well as more recent disclosures of matters here at home have caused me to definitely conclude that the entire C.I.A. Act should be fully reviewed. Accordingly, I already have in mind plans for such a review of the C.I.A. Act by the Senate Armed Services Committee and have already started some staff work thereon. All proposed changes, additions or deletions can be fully developed and hearings held thereon at that time. I have already completed, but have not yet introduced some amendments of my own. The proposal by the Senator from Missouri. Mr. Eagleton, to explicitly Eilkif 'and good will, and I suspect that deep down in the inner recesses of their hearts they know I am right. I think they would like to vote for the Eagleton amendment. In fact, I think they believe in it, because what triggered the situation that we find ourselves in today-what triggered the war powers bill pending before this body today-was not the fact that all of us went, during the recess, to academia and hibernated with professors. We did not just sit there and read lots of constitu- tional lawbooks, statutes, and what have you. It was not because a lot of thought had to be given to the methodology, to use the word used by the Senator from New York. But it was due to the fact that for a decade we had been in an atrocious nightmare in Southeast Asia. This bill was not conceived in the abstract, It was not conceived in the ethereal. It was conceived in blood- 50,000 dead and the whole litany of what occurred in Southeast Asia. That is why we are debating this bill today-not be- cause it is a prosaic idea, but because of our recent tragic experience. 09ft has many facets-not ''ddff onkin in 1964, and not July 20, 1973 pproved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE S 14191 only Cambodia, but one of the integral Presidential 'discretion so that civilians military personnel will be sent into south' facets of our being involved in that oper- can fly, bomb, shoot, and what have you, Vietnam on "temporary duty" from Thailand. ation in Southeast Asia was the fact that I think that we are asking for trouble. One indication of this is the announcement we became clandestinely involved in that we are asking for a repeat of exactly that the U.S. military command will move OPI Saigon to the remote Air Force base at sector when we should not have been what we had sought to avoid by this legis- H already become overly Thailand. NKP is smaller and has fewer fa- involved in a se- In Conclusion, Mr.'President, I would cilities than n other U.S. bases in Thailand, cret, covert way, the war mushroomed like to read briefly from a piece pub- such as Udorn or U-Tapao. It has, however, and we found we could not extricate lished in the May 1973 Harper's maga- served as a center for U.S. covert activities ourselves from that nightmarish situa- zine by Fred Branfman, the author of for years. NKP functioned as a base for the tion. Eventually 650,000 of our troops the book "Voices From the Plain of Jars." abortive electronic battlefield, for the "Blue were involved and more than 50,000 of He is an acknowledged expert on Indo- Berets" of the Air Force Special Forces, and them died. china and has considerable expertise in plane the unit th u used f for agent nsertiona prop lot pz , piloe So military activities will be carried that part of the world. rescue, and on by civilian employees of the Pentagon, I will read two passages if I may. The Son Tay prison specialized operations llke the cs osu from because under the war powers bill noth- first one reads: Thailand tobe limited Were t the g pport ing prevents the Pentagon from hiring There has been an almost audible sigh of for South Vietnam, it is unlikely that NKP or contracting with civilian 'employees, public relief since the signing of "The Agree- would have been chosen as the new U.S. ex-military people perhaps, but people ment on Ending the War and Restoring the command post. that are called civilians. Peace in Vietnam." True, everyone knows full Clearly the U.S. withdrawal has been such They keep them in their seersuckers disengagement will be a slow and compli- that it does not compromise the capacity to and keep them all over the world, just cated business, stretching through months direct and participate In covert war and months. But the important thing seems operations. as they did with the Royal Laotian air- to be that the United States has agreed to Mr. President, I do not vouch for every craft for bombing in Laos. (1) a set of principles sweeping away the The Senator from New York has said familiar justification for U.S. war in Indo- statement made in the Harp S article that if they come into it with our com china; (2) a set of promises built around the as to the inaccuracy. Much of it it is specu- bat troops, then S: 440 takes hold. But stipulation that the U.S. "will not continue lation. in Laos it was 3 years of CIA war before its military involvement or intervene in the My prognostication and crystal ball combat personnel came in. We were al- internal affairs of South Vietnam." At the gazing does not tell me that all things ready committed. They nod their own very least, we accept the idea that the Paris will not be all right in the Philippines. ready bat personnel there. They had their agreement marks progress; from there, we However, when we are preparing a piece may be inclined to assume that Vietnam will of legislation that determines under what own civilians flying aircraft for 3 years begin receding into it limbo where American before the U.S. Air Force became involved involvement is nonexistent. circumstances we go to war-the most in it. That would have all occurred be- The evidence paints a contradictory plc- terrible decision that a free country or fore S. 440 would take hold. By then we ture. It shows, instead, that we are "progress- any country should make-we should at are deeply committed. ing back" to the kind of covert warfare prac- the time we vote on that piece of legis- My capabilities with definitions are ticed in Vietnam during the late Fifties and lation know what it contains. And it meager indeed, but "commitments" have ously contain , and in an eIn the Laos m al- should not contain an ,would be lit a come to haunt us. After Americans are Paris agreement was signed, there has been loophole, that if exploited, would be liter- on the ground, advising; directing, and a steadily growing record of press reports, ally a mile wide. masterminding, and running the whole public statements by Administration officials, It is not good enough to say that we military operation, just because they do and budget allocations that, taken together, should not rock the boat. Lots of Sena- not have on their "U.S. Army" uniforms, . point to resumption of a covert war, leaving tors have agreed on this draft of the bill. Let us suppose they just use the wrrd us poised only half a step away from a re- There is nothing sacred about any piece newed "U.S." Strike the word "Army." Strip ch ina. No piece of evidence isnconcl save in of legislation that comes to this floor. It that from the regalia. So they wear some itself, but the overall pattern is distinct, not Holy Scripture. It is Legislation not is draf by wrten fatigues and are paid by the CIA, or in- Here's the way I see the logic of the situa- divine man hncof fghis it ted deed the Agriculture Department, as the tion, based on newspaper reports, Congres- A man all wisdom his imperfections. s bit bltedSenator-has said my amendment would sional testimony, official documents, and my And sometimes is a bit belated. cover such a possibility. Any department own four years' experience watching the This loophole so far as the CIA is con- of the Government could be the sponsor "secret war" in Laos. corned came about because we are still of covert activity. Mr. Branfman goes on to say: learning more about the war in Laos. I Let me move on. The Senator from PERSONNEL FOR A COVERT WAR have not learned enough. Mr. Colby's New York talks about a methodology to Since April 1, 1973 when U.S. forces were testimony before the Armed Services control war. What we are really talking formally withdrawn, American personnel in Committee the other day brought this about in this bill is hostilities. That Is Vietnam have done essentially what the sol- matter to my attention in terms I simply tabout key- in 440. word bill S. ho How do we get diers did before them. They are under con- could not ignore. the h them? How do we avoid them? Who tract to the Department of Defense, the State However belated the legislative process participates, and under what circum- Agency, performing chiefly military andip rag may be, when an amendment is offered stances? That is what the bill is all military tasks. ought especially if it considered top fug what is is, about. _ Many advisers to the South Vietnamese and especally si is plug op what I This amendment is designed to pre- Air Force and Army are technically civilians, consider to be a significant loophole. vent all American combatants from get- it is true. But almost all have been members We will have a war powers bill, and it ting involved in hostilities In a foreign of the U.S. Armed Forces, and many were will pass by a substantial vote. It may country without tho consent of Con rats. recruited directly' from the U.S. Air Force or may not be signed by the President. g y i ho eahe c neat of tht I do or Army. We are not here to write labels on a I sal tr in my no kndw what the eroublesome areas Of There have also been Indications that some document. What does the bill cover, or active-duty US. military the world will be in the future. But we nouthVietnam disgisedrasn civilians. A what what thisdoes it leaveves uncov? ed, of now, still have some left. The situation ill November 29 Los Angeles Times dispatch overed is the Southeast Asia is by no means resolved. from Saigon, for example, noted; very means, bill leaves unc the very methodology, the We will have our new Ambassador go- While manyof the new experts or techni- very mechanism by which we first en- ing one of these days to Manila, a noun- cians (or advisers) will be wearing civilian twined ourselves in Southeast Asia. This try whe they days some problems of sportshirts, the suspicion is strong that un- is the kind of loophole that under no try eere t and a stmee. derneath they will have dogtags, or at least circumstances should be permitted to re- retirement papers ... One staff officer, already main in a bill such as this. With his expertise, perhaps Ambassa- spamin thatlian cl thes much of the time, Our memories are sharp enough at this dor Sullivan will get us involved in the the ggest change n his office Philippines, if he has a mind to. He has will be the removal of some awards and mil- point in time, in 1973, to remember the experience iri that area. itary knickknacks, including a . mounted antecedent origin of our beginnings in AK-47 rifle, which would not fit his "new" Southeast Asia. I think we should act now If we pass this bill and leave this gap- identity. to assure that such a tragedy cannot ing loophole of uncontrolled, unilateral It is also quite possible that active-duty recur. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14192 Approved For Release 2005/06/06 : CIA-RDP75B00380R00070009001"0fuly 20, 197.3 CONGRESSIONAL RECORD - SENATE nection with past practices as to why it should not be done. I must say that the prospect of the bill being vetoed, as an argument that we should not strengthen it, does not appeal to me. I cannot imagine any President vetoing this bill and taking the risk of being judged after the fact as to whether he exercised proper judgment about it. I shall discuss that at a later date. Out I think there is very little prospect that this bill as reported by the committee would be vetoed, because I cannot ' imagine why the President would Veto it. If we put in something like the Eagleton amendment, to give it some teeth, it is true that it might be vetoed, but I think it might then be overriden, and it would be worth overriding the veto. Of course, no President is going to like the slightest restriction upon his corn- plete freedom of action to do anything in the military field or in the domestic field. they do not want any restriction even, as evidenced in the last election, on how they go about reelecting themselves. That goes even so far as ignoring the Mr. FULBRIGHT. the Senator yield? Mr. EAGLETON. I yield, Mr. FULBRIGHT. Mr. President, I support the amendment of the Senator from Missouri. It seems to me that this is a very essential part of this overall legislation, simply because of our recent experience in Laos. The Menfbers of the Senate will recall that the CIA undertook to create and did create its own advisors and directors and army that I think at one point reached about 36,000 men, in the neigh- borhood of 30,000 to 36,000 men. That fact was carefully kept from the Con- gress and from the public. There is an informal committee of the Senate that is supposed to have informal, supervision of the CIA. No attempt has been made to create a formal committee or a joint committee of the Congress. Former Senator McCarthy of Minne- sota and others tried that, as did the majority leader, but we were defeated in those efforts by the powers of the Mili- tary Establishment, and it was rejected. The CIA Committee, the so-called committee that exists, has not met, I be- lieve, in 2 years. I have, as all of us do, the greatest respect and affection for the Senator from Mississippi (Mr. STENNIS), and no one questions his sincerity and his devotion to the defense of the United States, but the facts are that this CIA army was created and paid for without the knowledge of the Senate generally, or Congress generally. There may have been one or two members of the CIA Committee who knew about it. That has never been clear. As I recall, the late Senator from Louisiana, Mr. Ellender, was reluctant to discuss the matter as to how much he knew about the operation in Laos. So the Senator from Missouri is en- tirely correct in using that as a recent example of what could be done, and what could also be repeated in the Philip- pines. That was the principal reason the question was raised about the suitability of Mr. Sullivan. The reason for the ac- tion on Mr. Godley has been grossly dis- torted. It had nothing to do with retribu- tion or punishment, or anything else. It was the experience in Laos, the tech- nique and the devotion which both of these gentlemen had developed for that operation, as evidenced by their actions and within the personal knowledge of members of the committee; and we sim- ply thought it was not proper to put men into positions of policymaking, in par- ticular, who might be inclined to feel that this was an appropriate and effec- tive way to deal with situations such as have developed in the Philippines, which are not unlike those which developed in Vietnam. I think this is a particularly pertinent issue that the Senator from Missouri raises, because otherwise. any future President can end-run the law and use the CIA in this fashion. So I am sorry that there are those who are opposed to asserting the role- of Congress in this kind of activity. It is a curious thing: every time an effort is made to assert the role of Congress in such matters, there are always reasons raised in con- criminal laws already on the statute books. They would also ignore this bill, perhaps, but we have to legislate on the assumption that the President will abide by the,law. That is the approach we take. But if 'the law has no restrictions upon his freedom of action, there is no reason for hirti to veto it This'bill has some good points in it, and I was extremely reluctant to vote "present" in the committee, because I could not endorse it, particularly section 3, which I shall discuss later. But I sub- mit that the provision offered by the Sen- ator from Missouri, in itself and on its own fleet, is well worthwhile. If it is rejected here, as I anticipate from the attitude of the sponsors, who have now lined up a majority of the Senate-and there are only four Members present to hear the debate-I see no particular reason why those who are committed will not vote for it with no knowledge of the Eagleton amendment or any other amendment. So I assume the die is cast as far as the outcome in the Senate is concerned. I was very much in favor, as indeed everyone is, of the announced objective of this legislation, which is to restrict the untrammeled power of the Executive to take this country into war. I am bound to say that I do not believe legis- preventing anyone knowing what the lation can control these things abso- CIA does, what it spends, and how it op- lutely. It is just the best we can do. If erates. We find these things out long a President is inclined to deceive the after the fact, after they have happened. Congress, as I believe the late President We found that out about Guatema a. We Johnson was in the Gulf of Tonkin mat- did not find out about Laos until it had ter, he can hornswoggle and hoodwink been going on for 2 or 3 years. After Cong~'ess, and cause us to take actions awhile these things come out, only after which serve his purposes, which we would the damage has been done after the not do if we knew the truth. That is the commitments, the loss of life, the ex- type j of thing that no legislation can penditure of money has taken effect. So meet'. We all supported a bill to limit the if we are to have any, power, any in- power of the President to take us into fluence upon this type of activity, the war on his own initiative, without con- amendment of the Senator from Missouri sultation with Congress, but then there (Mr. EACLETON) should be adoited. I developed a question of opinion as to the congratulate him on offering it. need. The difference is not only as to ob- it is unpleasant to do anything that jective-we all agree with the objective- disturbs the status quo in the field of in- but there are honest, legitimate differ- telligence or military affairs. That has ences of opinion as to the effectiveness of the means here provided. Some of the provisions in the bill are good ones, and some, I think, can be im- proved. I would hope to help to improve them during the course of action k ere on the floor and in the conference. But I congratulate the Senator from Missouri. He is certainly making an honest effort to give some substance to this legislation. One of the most glaring gaps in the power of Congress to control our own destiny is the enormous devel- opment of the power of the intelligence agencies, in this instance the CIA. Of course, it would apply not only to the CIA, but to the NSA or the DOD or any other agency of that sort. Under the general terms of the amendment of the Senator from Missouri, it would apply to any of those agencies that undertook to covertly engage us in another war on any massive scale such as is here in- volved. So I shall certainly support it. I regret very much that the Senator from Mississippi, whom we all respect so much, has from his sick bed sent a letter to discourage this very mild but very significant move toward the reas- sertion of some congressional control in this area. I again only remind the ~3en- ate that on two or three occasions aen- ators-I know the Senator from M!Ion- tana, the distinguished majority leader, on one occasion, or maybe both, has taken a very strong part, as Senator McCarthy did, and I did my best with several others. We even had an execu- tive session of the Senate to discus3 the matter, and a genuine effort was made to create a committee somewhat like the Joint Atomic Energy Committee to give supervision to the intelligence agencies; and I think, as I look back upon it, it was a great mistake that we did not do that. We did not do it simply because the same officers and the same people who now oppose this objective were success- ful in mustering enough votes to hill it. But I think it clearly appears to have been a great mistake not to have done it, because, as to this question of super- vision, there just is not any. As to the existing informal committee, I believe it is 2 years or approximately 2 years since it has met. That committee serves not to supervise or inform the Senate about its activities; it serves to protect the CIA from inquiring eyes, be they in the Senate Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 CONGRESSIONAL RECORD -SENATE been true for 20 years, and I suppose it will be true for another 20 years until Congress Itself has enough courage and enough votes, I may say, in the final aflalysis, to undertake some responsi- bility in this area. So that I think what the Senator from Missouri has done is to render a great service, regardless of what the outcome will be. Mr. EAGLETON. Mr. President, I most sincerely thank the distinguished Sen- ator from Arkansas for his presentation and for his laudatory remarks. Naturally, it goes without saying that there is a great deal of wisdom and substance in his remarks. Mr. President, I am prepared at this time to consider yielding back the re- mainder of my time. Mr. MUSKIE. Mr. President, I should like to take a few minutes to respond, if I may, and I yield myself 5 minutes for that purpose. The PRESIDING 'OFFICER (Mr. BIDEN). The Senator from Maine is rec- ognized for 5 minutes. Mr. MUSKIE. Mr. President, I have listened to the distinguished Senator from Missouri (Mr. EAGLETON) and the distinguished Senator from Arkansas (Mr. FULBRIGHT). I disagree with very little they have said. They have stated the basic policy issue which is addressed by the Eagleton amendment. The Sen- ator from Missouri was kind enough to suggest that deep down in my heart I be- lieve he Is right. That is correct, He was kind enough to suggest that deep down in my heart I would like to vote for his amendment. I would, but at the right place, at the right time, and on the right piece of legislation. I disagree with the distinguished Sen- ator from Arkansas, the chairman of the Committee on Foreign Relations, in his comment that those of us who oppose the Eagleton amendment resist the estab- lishment of an appropriate congression- al role in controlling the CIA. In my statement I indicated earlier this morning that. my concern was at least as urgent as that of the Senator from Missouri. I agree with the Senator from Missouri that this legislation was conceived in blood. But our problem is how, and when, and by what means do we bring the loose ends together in the pub- lic policy field that led us to this tragedy? The suggestion that we can, somehow, wrap them all up in one legislative pack- age and enact it, without any doubts of a Presidential veto or our ability to over- ride it, is simply unrealistic. I have sat in this body for the past 9 years and .watched Senators FULBRIGHT, McGovERN, HATFIELD, MANSFIELD, and so many other Senators trying to get a legis- lative handle on the problem so that Congress could end the war, only to see effort after effort end in frustration. Mr. President, it is a matter of tactical judgment as to whether we can load this bill 'with that much more and still have it "fly." Of course, it is a matter of judgment. But that should not divert us into a debate over who is for what. It is a matter of tactical judgment. The Senator from Arkansas suggested that it is inappropriate to consider what is legislatively achievable. That is a dif- ferent kind of argument from the one I heard in the Committee on Foreign Re- lations a couple of weeks ago in connec- tion with the Cambodian compromise. Everyone except the distinguished ma- jority leader and myself voted for that one, because, they said, "This is what is achievable." The Senator from Missouri did not vote for this compromise on the floor, and I did not vote for it on the floor, because we both thought more was achievable. That did not mean either side was purer than the other, but it did involve con- sideration of the tactical question of what is achievable. I happen to think that the war powers bill in its present form is of sufficient im. portance to reestablish the balance be- tween the President and Congress, so that if it becomes law we will have achieved something important. I should like to achieve that. I think that to over- load it, whether by this or some other amendment, is to risk the possibility of not having that achievement. That is my tactical judgment. it could be wrong. But that is my reason. I think It stands up. My footnote is Senator FULBRIGHT's own reasoning in connection with the Cambodian compromise-that is, to work for what was achievable, and I honor him for it. He may be right. Mr. FULBRIGHT. Mr. President, will the Senator from Maine yield? Mr. MUSKIE. I yield. Mr. ? FULBRIGHT. In that case, we already had a veto. There was no specu- lation about it. We had a veto. There was little doubt in our minds that we would have another. You have not had the veto on this. I do not know whether you will or not. I cannot imagine why the Presi- dent would veto this Senate bill if we passed it. Mr. MUSKIE. May I say to the Sen- ator from Arkansas that the distin- guished Senator from Arizona (Mr. GOLDWATER), earlier this morning, ex- pressed complete confidence that the President would veto it. The distin- guished majority whip, the Senator from Michigan (Mr. GRIFFIN), told me off the floor yesterday that he expected a veto. May I say further, in response to the Senator's point, that the veto in the case of the Cambodian matter had come close to the end of the fiscal year, and we were coming closer. It was my own "gut" feel- ing, after 9 years, that we had painted the President into a corner and that it was worth another test. It was worth another test to see whether we could get the 18 additional votes in the House which would be necessary to reverse the override decision on the first veto. That was my judgment. The Senator dis- agreed. But you certainly demonstrated with your position on this issue that the tactical question of what was achievable is a legitimate one. Mr. FULBRIGHT. I do not deny that at all. Mr. MUSKIE. But you denigrated It earlier, and I am trying to raise it to the proper level of serious legislative con- sideration. S,14193 Mr. FULBRIGHT. I would think the merit of the amendment of the Senator from Missouri, if it is put In, is suffi- ciently great. to make this piece of leg- islation significant. It would give it a much greater chance of overriding a veto than a measure which has really no very serious effect on the President's power. The PRESIDING OFFICER (Mr. BIDEN). The 5 minutes the Senator from Maine granted himself has expired. Mr. MUSKIE. Mr. President, I yield myself 2 additional minutes. The PRESIDING OFFICER. The Sen- ator from Maine is recognized for 2 ad- ditional minutes. Mr. FULBRIGHT, Mr. President, if the President is foolish enough to veto it, then I do not know why anyone should be too disturbed about overriding it. But if the bill has strength to it, as would be given to it by the amendment of the Sen- ator from Missouri, I would certainly be in favor of overriding a veto. Mr. MUSKIE. So the Senator acknowl- edges the importance of tactical judg- ment which he is now adding to his argu- ment in favor of the Eagleton amend- ment. Mr. FULBRIGHT. I never meant to deny the tactical. It is just, in this par- ticular situation, that you are speaking of the generality. I admit to the tactical importance of this particular situation. This Is not similar to what we had in the case of Cambodia in the way of a veto. We have not had one yet. If you hate a veto and you think this is worth- while to override the veto, we can meet the question as to whether we weaken or strengthen it, or leave out various parts of it. That has always been acceptable. If I gave the Senator the Impression that the tactical consideration of this question was not significant, then I withdraw it or I misspoke myself, I have for 30 years, engaged in measures which have had that as part of consideration. It is foolish to pass any legislation that we know is going nowhere unless it is an educational matter and we are trying to inform people and it is necessary that it be passed. That is done sometimes. But this is part of legislation. It has been passed. It is not that kind of legislation at all. I did not mean to give that impres- sion. I certainly do not mean to give the impression that the Senator from Maine is not as entitled to his judgment as I am. In debate, every now and then, it is the nature of debate that differences of opinion crop up. I do not pretend to know any more about it than the Senator from Maine. He is a very distinguished former candidate for the Presidency. That gives him an elevation and a prestige far be- yond an ordinary Senator. So I would not mean to insinuate that he is not entitled to his views. I withdraw or I modify any statement I made that reflected upon the sincerity and good faith of the Senator from Maine in taking the position he does. _I was only trying, in a clumsy way, to make an argument in support of the Senator from Missouri's amendment. Mr. MUSKIE. I think the Senator and I understand each other. I simply want the record to reflect that what separates Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14194 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20t 1973 the Senator from Missouri and the Sena- tor from Arkansas from theS Senator from New York and myself is the tactical question of whether it is wile to load this much more on the bill. Mr. JAVTI'S. On the veto question, I do not think we are left in any doubt about that. The minority leader of the House read to the House on Wednesday the President's declaration, in Which the President said: I am unalterably opposed tar and must veto any bill containing the dangerous and unconstitutional restrictions found in sec- tion 4(b) and 4(c) of this bill. - Those are the key sections which re- late to the 120 days-as contrasted with our 30 days-and the question-of a sooner enactment by the House of a -concurrent resolution shortening the time. It seems to me that the arginnent made by the Senator from Maine, the manager of the bill, is entirely appropriate, in view of the fact that-and Senator STEN- N1s' views on this are critically im- portant-we do want to mus*er the max- imum support for a bill the thrust of which is methodology rather than the causes of war. Mr. FULBRIGHT. Mr. President, will the Senator yield? Mr. JAVITS. I yield. Mr. FULBRIGHT. I was, only saying that those comments were directed at the House bill, not at this bill, and at two provisions which are not in this bill and which are restrictive. 'So I do not see that that is relevant to the discus= sion of this particular bill. Mr. JAVITS. At the very least, It in- dicates that the President is unalterably against some basic policy and principle which is contained in this', bill, as it Is in the House bill. Mr. FULBRIGHT. I am bound to say that this President would be opposed to any bill with the slightest restriction on his complete freedom of action to do as he pleases. Mr. JAVITS. Then, we agree. That does not denigrate from the fact that we say there is a real danger of a veto. I say this as the author of this bill, with the great aid of Senator EAGLETON, Senator STENNIS, and other Senators in the fashioning which was done in the Committee on Foreign Relations. The purpose and intent I had was to arrive at a procedure on the major question of war, and I thought if we could accom- plish that, we would have leashed what the Founding Fathers called the Dogs of War. I thought that was what I was doing. The causes of war are many. If we are going to try to follow all those things, we will be chasing lots of rabbit tracks. I agree as to the CIA, but I think that if we try to crank it. into this situation, the fundamental thrust of the bill, its funda- mental impact, could be lost. One thing on which I should like to take issue with my esteremed chairman with whom I work so closely, is that this, is a critically important bill without the CIA amendment. It is an historic break with the past. At long last, we will say how this must be done. All I say is that now, today, there is nothing the Presi- dent has to look at whirl tells him what to do. He: has freedom of action, unless we stop him, and we have to find a way to stop him that is agreeable to a majority of the Members of Congress or to two- thirds oftthe Members. Mr. MANSFIELD. Mr. President, I ask: for the yeas and nays on the pending amendment. The yeas and nays were ordered. Mr. EAGLETON. Mr. President, it is my understanding, pursuant to the previ- ous order, that the vote on this amend- ment will occur at 12 noon sharp and that a vote will occur at 12:15 p.m. on the District of Columbia Appropriations bill. The PRESIDING OFFICER. The Sen- ator is correct. Mr. E,AGLETON. I yield back the re- mainder,' of my time. Mr. MUSKIE. I yield back the re- mainder of my time. The PRESIDING OFFICER. Who yields time on the bill? AMENDMENT NO. 361 Mr. FUL,BRIGHT. Mr. President, I call up my amendment No. 381. The PRESIDING OFFICER. The amendment will be stated. The legislative clerk proceeded to read the amendment. Mr. FULBRIGHT. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER, Without objection, it is so ordered; and, without objection, the amendment will be printed in the RECORD, The amendment is as follows: On page 8, between lines 20 and 21, insert the following: "TROOP LOCATION AND DEPLOYMENT "SEC: 8. (a) The President shall provide, under! appropriate injunctions of secrecy to be removed upon due notice from the Presi- dent, to the Committees on Foreign Relations and Armed Services of the Senate, the Com- mittees on Foreign affairs and Armed Serv- ices of the House of Representatives, and the Joint Committee on Atomic Energy the following : "(1) not later than the fifth day of every month, a comprehensive listing of all Armed Forces of the United States by geographical location as of the last day of the preceding month with notations as to reasons for changes from the report for the immediately preceding month: and "(2) immediate notification and explana- tion of the issuance of any order to deploy any major unit of the Armed Forces of the United States from within the United States or the surrounding waters to any other geo- graphical location of the world from one geographical location of the worldto another in any case in which- "(A) the movement results in an increased preseGnce of such Armed Forces In the region to which the unit is deployed for a period in excess of three days; or "(B) such Armed Forces are in combat- ready status. "(b) The congress may restrict or prohibit by concurrent resolution, any deployment of such major unit referred to in subsection (a)!(2) of this section. In such event, the President shall, within thirty days, terminate such deployment and transfer any part of such Armed Forces already so deployed to the plate from which they were deployed or to the United States, its territories and possessions. "(c) The provisions of this section shall not apply when an authorization of hostilities by'Congress is in effect. "(d) For purposes of this section, 'major unit of the Armed Forces of the United States' means- "(1) at least a squadron of aircraft ox its equivalent; "(2) any two or more major combatant boats or vessels (other than ballistic missile submarines) ; or "(3) at least a brigade of troops or Its equivalent.". On page 8, line 22, strike out "SEC. 8" and insert in lieu thereof "SEC. 9". On page 9, line 4, strike out "SEC. 9" and insert in lieu thereof "SEC. 10". Mr. FU4.RIGHT. Mr. President, how much time do I have? The PRESIDING OFFICER. One hour on the amendment-30 minutes to a side. Mr. FULBRIGHT. I yield myself such time as I may require. Mr. President, a most important prob- lem, closely related to the war powers, is the question of authority to deploy the Armed Forces outside of the United States in the absence of hostilities or the imminent threat of hostilities. In the sec- tion of the committee report on S. 440 entitled "Explanation of the bill," it is stated that: This legislation would not inhibit the President's capacity to deploy the A:.-Ined Forces, that is, to move elements of the fleet in international waters. Prof. Raoul Berger commented in his testimony before the Foreign Relations Committee on war powers: Unless Congress establishes control over deployment by statute requiring Congres- sional authorization, the President will m the future as in the past station the armed forces in hot spots that invite attar, for example, the destroyer Maddox in the Ton- kin Gulf. Once such an attack occurs, retalia- tion becomes almost impossible to res'st. In other words, that Tonkin Gulf in- cident was a classic case of provocation on our part of an attack which estab- lished what they alleged to be a cause for going to war-at least, a cause iii that case to request the resolution from Con- gress. I am reminded in this connection of a memorandum written in 1968 by Gen- eral Wheeler, then Chairman of the Joint Chiefs of Staff, regarding the deploy- ment of American forces in Spain in the absence of a security treaty: By the presence of the United States forces in Spain the United states gives Spain a far more visible and credible security gt arantee than any written document. Both experience and logic show that, to the extent the President controls de- ployment of the Armed Forces, he also has the de facto power of initiating war. It seems appropriate, therefore, indeed urgent, to affirm by law the authority of Congress as provided in the Constitution, to regulate the deployment of the Armed Forces in the absence of hostilities or their Imminent threat. Such authority derives directly from the Constitution, which specifies Congress' pc wer to "make rules for the Government and regulation of the land and naval forces." In addition, the general power of appro- priation necessarily carries with it the power to specify how appropriated mon- eys shall and shall not be spent. More- over, the authority of Congress to regu- late the deployment of th?! Armed Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20,' 1973 Approved FoCONc7RESSI00NAL REC - P75fiKIVE 000700090010-9 Forces in peacetime is scarcely separable from the war power itself, inasmuch as the power to deploy the Armed Forces is also the power to precipitate hostilities or-to take the language of the war powers-to create "situations where im- minent involvement in hostilities is clear- ly indicated. * * *" In the words of a Congressional Research Service memo- randum on the subject, dated May 24, 1973, Almost every substantive aspect of the armed forces is an appropriate subject for regulation by the Congress; and, since the President is entirely dependent on the Con- gress for the forces he commands, it follows that Congress can control, directly or in- directly, the objectives for which these forces are used, at least during times of peace. The Congressional Research Service memorandum also points out other areas in which the Congress has a constitution- al responsibility to exercise control over deployment of U.S. forces overseas. The amendment that I am offering today would serve three important pur- poses. First, it would require that the executive branch give the Congress, on a regular and continuing basis, detailed in- formation on the peacetime deployment of U.S. forces. Second, it would require the President in peacetime immediately to notify and explain to the Congress "the issuance of any order to deploy any major unit of the Armed Forces of the United States from within the United States of the surrounding waters to any other geographical location of the world or from one geographical location of the world to another in any case in which-the movement results in an in- creased presence of such Armed Forces in the region to which the unit is deployed for a period in excess of 3 days, or-such Armed Forces are in a combat-ready status." Third, the amendment would give Congress power to restrict or pro- hibit by concurrent resolution the peace- time deployment of major units. If Con- gress so restricts or prohibits the Pres- ident, he would be required within 30 days to terminate the deployment and return the deployed forces to their prior location or to the United States, its ter- ritories, and possessions. The reporting the amendment calls for would not require additional activity on the part of the executive branch. Such classified reports are already pre- pared regularly by the Defense Depart- ment and provided to congressional com- mittees on an irregular schedule. As specified in the amendment, the com- mittees receiving the required reports would be bound to respect the appro- priate injunctions of secrecy. The amendment would not pertain when an authorization of hostilities by Congress is in effect. Thus, the provisions would not be applicable in circumstances otherwise covered in the war powers bill. Essentially, , this amendment would be applicable to peacetime deployments and would allow the Congress to exercise its legal controls over the Armed Forces dur- ing periods in which the, forces are not engaged in hostilities. There are a number of exclusions from the reporting requirement in order to allow the executive branch necessary flexibility and latitude. Major units as defined in my amend- ment would be a squad of aircraft, two or more major combatant vessels, or at least a brigade of troops. Movements of ballistic missile submarines would not be required to be reported under this sec- tion, nor would those of individual boats or vessels. I believe that the sizes of the units covered are such as to preclude unnecessary reporting by the executive branch. The amendment would allow the Pres- ident to transfer individual members of the Armed Forces administratively and to relocate elements of the Armed Forces to accomplish one-for-one replacement without notification. These changes would, of course, be reflected in the monthly reports. The requirement of im- mediate notification and explanation would come into force in the event of sig- nificant changes in our worldwide force deployments. Mr. President, I believe this amend- ment is so clearly in pursuance df the ex- plicit constitutional authority given to Congress to regulate the Armed Forces that there is no question about that aspect. Again, however, I suppose that any President, as he has become accustomed to untrammeled power, might feel that he has the freedom to do as he pleases and to treat this as no restriction on his power. Mr. GRIFFIN. Mr. President, will the chairman permit me to ask him a ques- tion which goes to the point he has just made? Mr. FULBRIGHT. Certainly. Mr. GRIFFIN. As I understand the amendment, it speaks in terms of Con- gress placing a restriction on the prerog- atives of the President. Is that correct? Mr. FULBRIGHT. That is correct. Mr. GRIFFIN. By the use of the term "concurrent resolution," I take it that the Senator from Arkansas, the chair- man of the committee, intends that this would not require or involve the signa- ture of the President. Mr. FULBRIGHT. That is my impres- sion. The article in the Constitution gives that right explicitly to Congress. Mr. GRIFFIN. I wish to quote a pro- vision of the Constitution which I think it at least pertinent because we are talk- ing about constitutional powers. I read from section 7 of Article I: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be pre- sented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, accord- ing to the Rules and Limitations prescribed in the Case of a Bill. - It seems to me that this amendment would certainly be changing the law. Ad- mittedly, it requires the concurrence of both Houses of Congress. I wonder what the Senator's answer would, be to the point that this does require action by the President. Mr. FULBRIGHT. Let us assume that the bill is passed and becomes law. It would authorize these decisions or ac- tions to be taken by concurrent resolu- tion. That would be law. It would not S 14195 have the President's signature or would not have to be overridden. . Mr. GRIFFIN. It seems to me that we would be saying that by passing such a law, we would change the Constitution. Mr. FULBRIGHT. No, I do not think so. The Constitution provides that Con- gress shall have power to regulate the Armed Forces, does it not? Mr. GRIFFIN. Yes, but the Constitu- tion also provides for his signature. Every-resolution-to which the concur- rence of the Senate and the House of Repre- sentatives may be necessary-shall be pre- seilted to the President of the United States. I do not think we can point to one section of the Constitution as a means of avoiding a second. It is a point for con- sideration, at least. Mr. FULBRIGHT. Would the Senator contend that if the bill is enacted, giving the President authority to take these ac- ! tions regarding the deployment, in peacetime, of the Armed Forces, that would not be constitutional? That we cannot, by law, give Congress the au- thority to pass concurrent resolutions in pursuance of the explicit powers given to it under the Constitution? Mr. GRIFFIN. I do not think there is any question that Congress has the pow- er to act. The most striking example of the power of Congress was the action taken with respect to cutting off funds for the bombing of Cambodia. Congress has the power. But I do not think we can circumvent that part of the Constitution that provides that the laws that Con- gress passes would be subject to being sent to the President for his signature. Mr. FULBRIGHT. There is no ques- tion that this law would be presented for his signature. We are not arguing about that. It is this law which prescribes the procedure by which this particular aspect is to be carried out. I would think that that would comply with the provi- sion the Senator is talking about. Mr. GRIFFIN. I suspect we are not going to be able to resolve this. I only raise it as a point that should not be overlooked. I think, in addition to the other arguments `that have been made against the amendment of the distin- guished chairman of the committee, there is a question of constitutionality. Mr. FULBRIGHT. How does the Sena- tor reconcile the all too common prac- tice of Congress giving the President discretionary power by law? We do that in many cases, in regulatory matters, and other areas where we authorized the President by law to do certain things that are otherwise reserved to Congress. We cannot strip the Congress of con- stitutional powers that are basic, but we give the President much discretionary power without a law or without requir- ing the continued participation of the Congress. If we give the President that kind of authority,' l do not understand why we could not by law give the Con- gress the discretionary power in this instance, especially as it relates to the power to declare war, which is generally considered exclusively in the power of Congress. This raises another question. Perhaps the Senator from Michigan has not thought about it. Does he think that Congress could not pass a declaration of Approved For-Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14196 Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010-9 CONGRESSIONAL RECORD - SENATE July 20, 1973 war without the concurrence of the President? Mr. GRIFFIN. No. It is not specified as an exception in the particular language that I have read, and I do not believe that It would be an exception. The Constitution does specify the excep- tion of a motion to adjourn, and because the declaration of war power is spelled out in another section, I_ do not think it would be an exception. But I do not equate that with the situation the Sena- tor is addressing himself to in his amendment. Mr. FULBRIGHT. This is closely re- lated to that. Mr. GRIFFIN. Close is not quite good enough. Mr. FULBRIGHT. Of course, I confess Congress has not explicitly undertaken it to this extent, but in many of our past actions, as the Senator knows, it has often taken action with regard to the deployment of troops. There was a long debate on the floor about sending troops to Germany. That does not go to the point the Senator is speaking on. There was no question Congress had that basic authority. In most cases in the past we have not chosen to exercise it. The tremendous enlargement of Presidential power has come about because Congress never legislated in the area of congres- sional responsibility. Mr. GRIFFIN. I generally agree with the Senator. The Congress has had pow- er all along. The fact is that it has never exercised it. Mr. FULBRIGHT. It has never exer- cised it, and in the absence oflegislation and any congressional direction, the President takes over, and we have only ourselves to blame, in effect. Mr. GRIFFIN. But the question I raised is a constitutional one, and that is whether or not, in the absence of a dec- laration of war, which I will concede ad arguendo would not require the signature of the President, or under' a resolution to adjourn under the Constitution, this purpose can be accomplished by a con- current resolution, which need not be presented to the President for his signa- ture. The language of the Constitution in section 7 of article I seems to be so very clear that at least the question is one that ought to give us some concern. Mr. FULBRIGHT. Another analogy strikes me. I will ask the Senator if Con- gress has not on numerous occasions by law given the Executive the power to re- organize the Government and then re- tained to itself the power to veto it by concurrent resolution without Presiden- tial participation. Is that not a very, com- mon practice? Mr. GRIFFIN. I will say to the Senator a very learned law review article, the pertinent part of which I will have in- serted in the RECORD latet. discusses the constitutionality of this particular type of legislation, pointed me In the direc- tion of this question here. It is true that I think when we go into a matter which involves not just the reorganiza- tion of the executive branch of the Gov- ernmeent but, rather, a more fundamental area such as the war power, it would be stretching the concept much further and woul be much more subject to attack. FULBRIGHT. All that is a matter of opinion, but there is the general feel- ing that the war power is exclusively a congtessional responsibility, as much a part of the constitutional authority as raising money. Delaring war is absolutely fund ental. Raising money' has much relation to carrying on the war, of course. We undertake to specify the number of troops and the pay of the troops. All of that is related to the war power. We have the responsibility for raising an army and navy; Most of the cases the Senator Is speaking of involve the participation of the Congress, with the reserved power of overriding a veto. I take it the Senator is making the nar- row }point of the concurrent resolution, and that it ought to be by joint resolu- tion.' That is a significant point that arises in this discussion. It has not been tested to a great extent because Congress has,never sought to exert the power in many of these areas. There is little ju- dicial history on many of these questions simply because Congress has not seen fit to exercise its power. I think we have rocked along for 200 years on the as- sumption that each branch of the Gov- ernnlent has respect for the other branch. There has been a sort of gentleman's agreement-"You operate within your sphere and we will respect that." Vetoes in the past have been relatively few, es- pecia411y if Congress is united and in a fairy strong position. Most Presidents have} been disposed to accept that in most cases. They rarely veto. But it seems to me that one of the consequences, es- pecially of the war in Vietnam, which has been? outside of the Civil War, I believe the most divisive occurrence in our his- tory,' is that there has arisen, as a re- sult,'. a tremendous difference of opinion between the Senate and the past Presi- dent. There has been a kind of bitterness and 'resentment that has broken down what might be called a gentlemen's ac- ceptance of each other's role. Of course, I participated in it, and I felt extremely disappointed in President Johnson because I thought he had hood- winked me and the Senate. He had mis- represented the need for legislation which got us into a situation which I thought was absolutely inexcusable. I am sure. he did it because he thought it was in the national interest. I do not doubt his patriotism. He just thought we were not to be trusted with the truth and the Am rican people were not to be trusted with the truth. In the election of 1964 he ran on a platform directly opposite to what he had in mind. So the trust in the relations between the Executive and the Congress began to break down. The war became bitter and tragic, and tion in that the action is initiated by the Things got worse and worse. President, but there is a good deal of There has been this long period of concern in some quarters about whether mistrust between the Executive and the or not it is constitutionalln light of this. legislative branches. All we are trying to It has not been sufficiently tested, I would do now is, in a sense, to reaffirm the say, in the Supreme Court. principles of the Constitution in this leg- islation. As I have said very often, if we could accept and could resurrect tie old spirit of cooperation, we would no, need this legislation. The Constitution i:. clear enough, in my view, if we would follow it and if the Executive would follow it. But the Executive has not followed it. There has not only been this matter, but we have also had impoundment leg- islation and Executive privilege legisla- tion, all of which were not considered necessary before because there had been no abuse of power by the executive branch to an extent that required any action by the Congress.-It was very re- stricted. It arose in very minor ways in the past. That is also true with respect to impoundment. There has always been the question of impoundment, but not wholesale impoundment where the Con- gress felt it was being thwarted in major policy. If we could rely on the good faith of the Executive, we would not need the bill. However, since we cannot do so, so we do need a bill. I feel it is an attempt to restore the validity of the Constitution by l~gisla- tion. It ought not`to be necessary, How- ever, under the circumstances, it should be done. In the case of deployment, there has been little, if any, Executive abuse of power. Usually in the past, Executives have come to the Congress and asked for authority to send troops, as former Pres- ident Eisenhower did with respect to the Middle East. And the truth was told about that matter. We debated it and approved of it. There was no question then. However, now there is the feeling that the President has developed the idea that, as Commander in Chief, he can do anything he likes to do. That assertion has brought forth the reaction of the Congress. Congress can- not accept the Executive's theory. We are forced to react in this fashion and act on this legislation I certainly ap- prove of it. The only questions that always arise are the means and the best way to ac- complish the objective. This is inherent in every bill that comes before Congress. No piece of legislation satisfies every- one. We all have different view,: as to some aspect of the matter that could be more effective in accomplishing the an- nounced and accepted objectives That is about the story, Mr. President. I would hope for the acceptance of a very modest assertion of the power to control deployment which, in it:,elf, as General Wheeler so well said, gives a greater guarantee than any writ;e:n in- strument. He says in effect that 'it you put the troops in Spain, we are more likely to come to your rescue tha:1 if we had a treaty. Don't worry about it." There was no treaty. We put 10,000 soldiers there. General Wheeler is very much correct on that. Therefore, to implement our power-- responsibility more than power-we must try to control deployments in peacetime so that we do not enter into a w 3w as a result of our deployments. Again I say that if it were not for the arbitrary attitude of the Executive that they can put these troops in Slain by executive agreement and wit lout a Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010-9 Approved For Release 2 :&&ST5Eft0 00700090010-9 July 20, 1973 CONGRERRHATf treaty, I would not be thinking of such a provision. Again we.pleaded with the Executive to submit a Spanish agreement by treaty, which would have been a quite satis- factory procedure. In the absence of a treaty we had no opportunity to approve or disapprove of circumstances which could lead us into an involvement in war. However, they refused. Wehave recently had the same sort of thing in a little different area in the taking over or opening of the Bahrein Naval Base and the continuation of the Azores agreement. They are not as di- rect as the Spanish agreement was. How- ever, where we have these operations of naval bases and troops, they should be submitted to the Senate. Mr. GRIFFIN. Mr. President, I ask unanimous consent that that part of the Harvard Law Review article dealing with the constitutionality of the concurrent resolution process, to which I referred, be printed in the RECORD at the conclu- sion of our colloquy. There being no objection, the excerpt was ordered to be printed in the RECORD, as follows: [From the Harvard Law Review, February 1953] THE CONTROL OF FEDERAL ADMINISTRATION BY CONGRESSIONAL RESOLUTIONS AND COMMIT- TEES (By Robert W. Ginnane) C. CONSTITUTIONALITY OF THE USE OF CON- CURRENT RESOLUTIONS It is one purpose of this article to suggest that there are grave doubts as to the consti tutionality of all of the recent statutory pro- visions described above for the use of con- gressional resolutions. As stated earlier, these doubts are not particularly engendered by any rigid classification of governmental acts as legislative or executive. That many acts of government may be performed with equal propriety by the legislative branch or the executive branch may be conceded. The ob- jection is rather to the manner of the exer- cise of power. As one of the checks upon undue concentration of governmental power in a single organ of government, Article I, Section 7, makes presidential approval, or veto subject to being overridden by two- thirds vote of each house, an essential ele- ment in the exercise of power by Congress. That the President cannot be excluded from the legislative process by thQ simple expedi- ent of embodying policy decisions having the force of law in the form of "resolutions" not presented to him is made clear by the second paragraph of Section 7, providing that "Every order, resolution, or vote" requiring the con- currence of Senate and House, except on a question of adjournment, must be presented to the President as in the case of bills-a pro- vision added for the express purpose of pre- venting evasion of the President's veto, Since the Constitution plainly requires presidential participation in the exercise of legislative power, a power must be classified as non-legislative to justify its exercise by Congress or, one of its branches in a way other than that prescribed?08 But it is clear 108 However, it could then be argued that members of Congress, in their capacities as such, may not perform non-legislative func- tions. It is settled that Article III judges may not perform non-judicial functions in their capacities as judges. Federal Radio Comm'n v. General Elec. Co., 281 U.S. 464 (1930). Under the doctrine of Springer v. that the policy decision and legal conse- quences of concurrent resolutions used in the ways that have been described-for example, the disapproval of a reorganization plan, the termination of the Attorney Gen- eral's suspension of deportation of an alien, or the imposition of an arms embargo-are indistinguishable from the policy decision and legal consequences of ordinary legisla- tion. The absence of distinction is particu- larly evident where the statute provides for termination or repeal by concurrent resolu- t16n, since it can hardly be contended that the repeal of a statute is less of a legisla- tive act than its original enactment. The validity of such provisions is further under- mined by the specific refusal of the Consti- tutional Convention of 1787 to except repeal legislation from the requirement that pro- posed legislation be presented to the Presi- dent. This view also finds support in the inter- pretation given by Congres to Article I, Sec- tion 7 i;1 all but the most recent years. In the first explicit congressional statement, in 1879, the Senate Committee on the Judiciary stated that concurrent resolutions which "contain matter which is properly to be re- garded as legislative in its character and effect" must be submitted to the President, and that "the nature or-substance of the resolution, and not its form, controls the question of its disposition." 10B That this was the view adopted by Congress in practice is demonstrated strikingly by the passage of 150 years after the adoption of the Constitution before statutes began to provide for such uses of congressional reolutions. And until the enactment of such statutory provisions be- came commonplace, their validity was chal- lenged vigorously in both Senate and House, without regard for party lines, as well as by Attorney General Mitchell and President Roosevelt. Finally, the scope of the potential applica- tion of such provisions Is alone enough to suggest a serious question as to their consti- tutionality. If the modern uses of the con- current resolution are valid, then Congress is free to provide, for example, that any pro- posed loan by a federal lending agency may be vetoed by a concurrent resolution, or that the maximum or minimum price for a par- ticular comodity may be prescribed by a con- current resolution. Again, it would be theo- retically possible for Congress to pass, per- haps over the President's veto, legislation pro- viding that each section of the United States Code could be terminated or repealed by con- current resolution. Not many such statutory provisions would be required to alter pro- foundly the distribution of power in the Fed- eral Government. - The legal and practical arguments ad- vanced by proponents of such statutory provisions seem unpersuasive. Thus they contend that the operation of the statute merely depends upon occurrence of a condi- tion precedent-the fact or event of Con- gress passing a resolution, or a fact to be found by Congress. Specifically, they have urged that if the exercise of stat- utory powers can be made contingent upon findings of fact by an executive officer, as in the tariff cases,110 or upon Philippine Islands, 277 U.S. 189 (1928), it would seem that Congress cannot confer excutive powers upon itself or its members, since Article II, ? 2 vests exclusive power to appoint federal officers in the President with advice and consent of the Senate (or if Congress so prescribes, in the President alone, in the courts of law, or in the heads of departments). Moreover, Article I, ? 6 pro- vides that no person holding any office under the United States Government may be a member of Congress during his continuance in office. See note 160 infra. 108 See pp. 573-74 supra. S 14197 the favorable vote of the persons who will be affected by proposed governmental action, as under some of the agricultural marketing statutes,"' it is "difficult to believe that the effectiveness of action legislative in charac- ter . may not be conditioned on a vote of the two legislative bodies of the Con- gress." 112 The answer to' such contentions would seem to be that it is one thing for a statute to provide that, after Congress and the President have both performed their legislative roles, the application of a statute may be further conditioned upon an execu- tive officer's finding of fact or upon a favor- able vote of interested persons, and it is an- other thing.for Congress to reseve to itself, excluding the Pesident, the power of further determining the application of a statute. It is a non sequitur to say that, since a statute can delegate a power to someone not bound by the procedure prescribed in the Consti- tution for Congress' exercise of the power, it can therefore "delegate" the power to Congress free of constitutional restrictions on the manner of its exercise. The result- and, indeed, the frankly stated purpose-of such provisions is to exclude the President from decisions of Congress which. in their legal consequences are indistinguishable from statutes and which are seemingly the type of policy decisions which Article I, Sec- tion 7 requires to be submitted to the Presi- dent. In brief, it is difficult to avoid the con- clusion that the express purpose of the third paragraph of that section to insure that the President's role- in the legislative process should not be eliminated merely by giving legislative decisions another name 118 would be thwarted by statutes which reserve final governmental decisions for determinations as "events" by Congress alone. Another legal basis adduced for such stat- utory provisions is found in the informal suggestion of the Department of Justice, made in connection with the Reorganization Act of 1949, that a provision for disapproval of reorganization plans by concurrent resolu- tion could be justified as an agreement by the President not to act without consulting Congress or in the face of its disapproval. However, this theory of an agreement to con- sult would seem to prove both too little and too much. Certainly, the theory would not support provisions which were enacted over the President's veto if the action to be ap- proved is not initiated by the President. On the other hand, this agreement theory goes too far in that it would justify making ad- ministrative action subject to disapproval by legislative committees-a highly dubious matter, as is pointed out below. In any event, it would seem that the President's role under the Constitution cannot be altered by agree- ment. In the case of the Reorganization Act of 1949, which provided for disapproval by either House of reorganization plans proposed by the President, it is arguable that there is simply a reversal of the chronological order in which Congress and the President usually act in the legislative process. The President has indicated his approval by preparing the plan and each House has indicated its ap- proval by failure to pass a resolution of dis- approval. It is not clear, however, whether the power of each House to determine its own procedure 114 can be viewed as including the power to provide that a bill will be deemed passed unless specifically disap- 110 Marshall Field & Co. V. Clark, 143 U.S. 649 (1892); J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). 111 Curran v. Wallace, 306 U.S. 1 (1939) ; United States v. Rock Royal . Cooperative, Inc., 307 U.S. 533 (1939). 112 H.R. REP. No. 120, 76th Cong., 1st Sess. 6 (1939). 118 See pp. 572-73 supra. 114 See Christoffel v. United States, 338 U.S. 84 (1948). Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14198 Approved For "A Kk(L6 i&75F P9JW000700090010,1Uly proved within a certain period of time. There Hampshire court would seem equally appl.i- is at least a question under the Constitution cable u der the more customary constitu- whether the mere inaction of both Houses, tional r quirement that both houses of a which conceivably might- reflect little or no bicameral legislature must act concurrently, deliberation, Is an acceptable substitute for and the' decision thus supports the view of the deliberation which is ordinarily assured the Senate Judiciary Committee in 1945 that by the requirement of an affirmative vote. neither douse of Congress can be deprived And even if the theory of legislative action of its power to prevent a legislative proposal by inaction is sound-or indeed, even if pro- from becoming law and that therefore each posed executive action is matte subject to House must be enabled to prevent a reorgan- prior affirmative approval by both Houses as ization plan from becoming effective. in the latest provisions for approval of de- In contrast, the Supreme Court of Colo- portation suspension-it would seem that the rado has recently upheld a statute under proposal should nevertheless be presented to which the proceeds from certain taxes could the President after approval by Congress as' be pledged as security for bonds to be issued prescribed in the Constitution. If such a? to finance highway construction, with the method for congressional control over reor- proviso "that any such pledge shall first be ganizations is to be justified by characteriz- approved by joint resolution of the Senate ing it as "legislation," there seems no reason and House of Representatives." 121 Article V, why the constitutional requirements for leg- Section $9, of the Colorado constitution dif- islation should not be satisfied, even though fers from the third paragraph of Article I, the President's approval be a foregone con- Section 7, of the Federal Constitution only elusion. in that he exception from the requirement The practical justifications seem equally of submission to the executive of concur- unpersuasive. It has been suggested, notably rent action on questions of adjournment is by Professor Corwin, that in an era of in- followed;. by the words "or relating solely to ternational tension which impels Congress the transaction of business of the two to delegate extraordinary powers to the exe- houses '" The Colorado court upheld the cut-lye branch, statutory provisions for term- statute on the theory that such a resolution, ination by concurrent resolution are an es- "not being legislative in character, related sential means of preserving our constitu- solely to the business of the General As- tional equilibrium-namely, by giving Con- sembly."; This theory seems hardly tenable gress a compensating power to retract the and suggests that the legislature could, by delegated authority without the necessity enacting such statutes, classify almost any of overcoming presidential vetoes.118 Such a kind of governmental action as its exclusive fundamental political consideration, if real, concern. would probably carry great weight with the The only judicial consideration of pro- courts118 However, as Madison foresaw, Con- visions for the termination of a statute by grass seems to have been able to maintain concurrent resolution is found in Matter of effective control over its great delegations of Moran v' La Guardia. = A New York statute power by the device of enacting statutes of authorizing New. York City to reduce cer- short duration, thus providing Congress with tain civil service salaries during the emer- regular opportunities to determine whether gency poclaimed by the statute provided to renew or modify the grant. "other effec- that the:: provisions should apply "until the tive device is that ofproviding in appropria- legislature shall find their further operation tion acts that no funds shall be used for unnecessary." The legislature passed a bill to specified purposes. The adequacy of these - repeal this statute which was vetoed by the techniques is suggested by the fact that governor, Thereafter, the legislature sought Congress has not yet found it necessary to to achieve the same result by passing a re- pass a concurrent resolution purporting to solution "not submitted to the governor. A terminate a statute or to terminate aid to majority of four of the seven judges of the a particular country. Court of Appeals apparently held that a The federal courts have not yet had occa- statute could not provide for its termina- sion to consider the validity of any of these tion by a concurrent resolution, stating tha statutory provisions for the use of congres- "A concurrent resolution of the Legislature sional resolutions. However, the few state is not elective to modify or repeal a statu- court decisions on similar state statutory tory enactment. . To repeal or modify a provisions are either adverse or unpersuasive. statute requires a legislative act of equal Thus the Supreme Court of New Hampshire dignity and import. Nothing less than an- held invalid a state statute which, like the other statute will suffice. A concurrent reso- Federal Reorganization Acts of 1939 and 1945, lution of the two Houses is not a statute.... provided for the submission by the governor It resembles a statute neither in its mode to the legislature of reorganization plans of passage nor in its consequences. . . . But which were to become effective if within 25 more important, its adoption is complete days "there has not been passed by the two without the concurrent action of the Gov- houses a concurrent resolution stating in ernor, or Tacking this, passage by a two-thirds substance that the [legislature] does not vote of each house of the Legislature over favor the reorganization plan.""' It found his veto." 121 a violation of the provision of the state con- The court obscured the precise basis of 1-.9 stitution that "The supreme legislative decision, however, by concluding further that power, within this state, shall be vested in the statute did not contemplate termination the senate and house of representatives, each by a resolution not submitted to the gov- of which shall have a negative on the ernor. The dissenting judges, pointing out other," 118 in that "Each house has under- that the termination clause was entirely taken in advance to surrender to the other superfluous if construed to mean that ter- its constitutional authority to veto or refuse mination could be effected only by a statute, assent to action taken or approved by the argued that the statute both could and did other." 110 The dissenting judges regarded provide for its termination by a resolution the provision as "merely one of the checks embodying a finding of fact by the legisla- or restraints upon the exercise of the sub- ture. While the veto provisions of the New ordinate legislative power delegated to the York constitution 114 are almost identical with Governor." 120 The rationale of the New - the first paragraph of Article I, Section 7 of the Federal Constitution, they do not contain See Corwin, Total War and the Consti- the further provision found in the third para- tution 45-47 (1947). graph of'the latter that every order, resolu- 11e See Myers v. United States, 272 U.S. 52, tion, or vote requiring the concurrence of 134-35 (1928). 117 Opinion of the Justices, 96 N.H. 517, 83 A.2d 738 (1950). 118 N.H. Const. Part II, Art. 2. 18 96 N.H. at 522,83 A.2d at 741-42. 120 96 N.H. at 529, 83 A.2d at 746. 121 Watrous v. Golden Chamber of Com- merce, 121 Colo. 521, 218 P.2d 498 (1950). 1-0 270 l`l.Y. 450, 1 N.E.2d 961 (1936). 112 270 N.Y. at 452, 1 N.E. 2d at 962. 1a N.Y. boost. Art. IV, ? 7. 20, 11)73 both Houses must be submitted to the Pres- ident. Accordingly, it Would be much easier under the Federal Constitution to conclude that a?statute could, not provide for its ter- mination by concurrent resolution. Mr. MUSKIE. Mr. President, I yield 5 minutes to the Senator from Texas. Mr. TOWER. Mr. President, I-disagee strongly with the assertion of the Sena- tor from Arkansas that what Congress is doing here is reasserting it own con- stitutional authority and giving validity to the intent of the framers of the Con- stitution. I believe that the amendment offered by the Senator from Arkansas does great violence to the constitutional role of the President of the United States as Com- mander in Chief of the armed services. And the latter does equal violence to the constitutional role of the President as the principal spokesman on inteina- tional matters, as the principal formula- tor and implementor of American for- eign policy. S. 440 is bad enough and is enough of a violation, in my estimation, of the constitutional prerogatives of the Presi- dent without adding the amendment of- fered by the Senator from Arkansas. A great deal has been said about the relationship between the Executive and the Congress, and that if we had gone along with each branch respecting the other, the thing would have been all right. However, it was said that the Pres- ident has been indisposed to cooperate with the Congress and that therefore the Congress asserts itself in this matte:?. The fact of the matter is that Pr~ei- dent Nixon was the first President since Zachary Taylor, the first President in 120 years, entering upon his first term of office with both Houses of the Cin- gress in control of the opposition party. There has, I think, been a great dear: of partisanship involved to the extent that it might be referred to as constipation between the Congress and the President. And I am not saying that the partis in- ship is confined to just one branch. I would not want to assert that at all. The fact is that there is a partian climate at this moment which augers well, unfortunately, for the passage of legislation of this kind, because this is, I guess we might call it, "Kick the Pri'si- dent Season," and there is a mood here in Washington that is not conducive to cool consideration of the merits of le?:is- lation of this kind. I would remind Congress that Presi- dent Nixon was reelected last year by an overwhelming majority of the votes of the American people. And that was Mot just an electoral college majority. It was a vast public majority. And the principal issue in the campaign was foreign pol: cy. Two sharply different views were pre- sented in the campaign, on foreign policy and on national security policy. And .he policy advanced by the President of ;he United States received the overwhelming support of the American people. By passing legislation of this kind it is my view that we are flying in the tenth of the mandate conferred by the Am3r- ican people on the President of the United States. They have expressed at the ballot box their confidence in his ability to formulate and implement a Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 CONGRESSIONAL RECORD -SENATE S 14199 foreign policy that is in the best interest other than by law. A concurrent resolu- where the Polaris submarines are based of the United States. tion is not law, it is nonstatutory. I and deployed today? We seek here now to hamstring the think where concurrent resolutions can Mr. FULBRIGHT. Mr. President, this President. And I am hopeful that the be used is where you have a power that amendment explicitly exempts the Po- Senate will reject the amendment offered Congress has conferred under its au- laris submarines. It should not apply to by the Senator from Arkansas that seeks, thority to make general law; and it can submarines. But they are not affected. I in effect, to give Congress the control take that power back, if the President am only talking about the things the over the deployment of troops. signs the bill providing that we can take amendment talks about. We have great difficulty in agreeing on it back into law. In the daily press-I read just today a number of things here. And a failure to As to constitutional authority, I have how many there are in Japan, and how deploy American troops would be more, grave doubts about it. Incidentally, I do many in Korea. So when you talk about I think, than the Congress could expedi- not know whether that has been decided peacetime, I think it is not really all that tiously handle. by the courts, but I am giving my best secret. I do not think it is a major prob- Therefore, I believe that the amend- opinion, and am not depending on it for lem. That is all I am saying. ment of the Senator from Arkansas any war powers legislation. Mr. JAVITS. What I am saying, Mr. should be defeated. But laying that aside, my point is President, in judging the delicacy of The PRESIDING OFFICER. Who that it is another question of war we what the Senator is trying to do, is that yields time? would be trying to deal'with. It may be he himself-not I, he-in drafting the Mr. MUSKIE. Mr. President, I yield a very important one, like Senator amendment, found it necessary to say myself 6 minutes. EAGLETON's, but one we simply cannot that the information shall be provided May I make clear at the outset that I encompass in this bill, under the appropriate injunctions of respect immensely the capability, the Another thing I would like to call to secrecy. knowledge, and the background of the Senator FULBRIGHT'S attention, because Therefore, if the President is not going distinguished chairman of the Commit- I have little doubt, whether he succeeds to dispel the very thing he calls for, but tee on Foreign Relations, and I often or fails here, that this is a subject deep we are going to dispel it, we have to follow his lead in these matters. in his mind and he will pursue it. I think about that; we cannot just say With respect to this amendment, the would like to call to his attention the "Do it." basic position which I take is that it secrecy problem, a very serious problem I say this. only to emphasize that this again raises the risk of loading the bill in this respect, because he himself con- Is an intricate, subtle, and difficult sub- with serious questions that ought not to templates it. He says the President shall ject. It is not a subject that should be be loaded upon it at this time. One of provide "under appropriate injunctions disposed of hastily, or superficially, in the questions has already been discussed of secrecy"-that is page 1, lines 3 and terms of a quick debate under time limi- by the distinguished Senator and the 4, of his own amendment-and that is tation. We have had no hearings and minority whip-the question of whether very necessary, because, after all, that only a cursory debate. P or not the concurrent resolution -provi- is one of the legitimate secrets of any The PRESIDING OFFICER. The Sen- sion is constitutional. A second question country, to wit, the deployment of its ator's 4 minutes have expired. is the President's constitutional power armed forces. Mr. FULBRIGHT. Mr. President, will to deploy the Armed Forces. The question is, How do you break that the Senator yield' for one observation? Congress undoubtedly has authority in secrecy, assuming it can be removed on The PRESIDING OFFICER. Who this field, and the President has some due notice from the President? Suppose yields time? authority in this field. As the Senator the President does not give. you due no- Mr. MUSKIE. I yield the Senator such from Arkansas so eloquently pointed out, tice? Then when we pass the concurrent time as he may require. what we have here is another one of those resolution, we are breaking the secrecy. Mr. FULBRIGHT. This ithat it is gray areas that is better left alone. Be- I do not say that is impossible; we can delicate and .I ought not Idea interfere, cause it is such a gray area, and because live with that, too. Maybe we, too, have delicate course, is a at the oroot of ught not our trtrouble, the question the amendment raises is a to function in some things in secrecy, of have proceeded the significant one and may be a serious one, and be tough enough to discipline a of Presidential under our er this kind of for I prefer not to add it to the bill at this Member who breaks the secrecy, which myth about 30 or 40 years, aninfallibility d everyone it time. For that reason I shall oppose the is something we have never done. But about mys- amendment. that takes a good deal more thought and conditioned o the believe President that is in some reliable on I yield the distinguished Senator from refinement than we can put into this terious way to secrecy, that has wisdom, and on New York such time as he may require, bill with an hour's debate. ht not to interfere with it. This is the Mr. JAVITS. I need just 4 minutes. On the question of constitutionality, i ought t Mr. President, this amendment is not would like to say that while I believe root of our problem. I find that there is unlike the Eagleton amendment. It deals Congress does have power to legislate an assumption in this bill as it comes with causes of war. The Senator from respecting peacetime deployment, the from the committee that certain sec- Arkansas (Mr. FULBRIGHT), out of his constitutional interplay between Con- tions, like section 6, are sort of based extremely rich experience, says that if gress and the Commander in Chief is upon an assumption that Congress has you pile troops or forces in a given area, somewhat different. The respective au- to assert its power legislatively. We have that could enhance the possibility of war. thorities are different, and perhaps the gotten into the position that we are so But, here again, we must stick to the Commander in Chief's authority is conditioned we cannot do anything. But basic purpose of our bill: It is a method- stronger vis-a-vis Congress with respect I do not think it is valid to assume that ology. It is a way in which to give Con- to the details of the locus of peacetime the Executive is so much more reliable gress the opportunity and the frame of deployment of the forces under his com- than Congress that he can be absolutely reference in law by which it can assert mand. This is an issue which should be depended upon. itself in respect to deciding on war-not explored and clarified in hearings such Mr. JAVITS. Mr. President, if I may the causes of war, but war. To be faith- as we did with respect to the war powers. have 1 more minute to reply, this whole ful to that purpose, we must reject this Mr. FULBRIGHT. Mr. President, will bill is a massive negation of that assump- amendment. the Senator yield for clarification? tion. For those reasons, not because I do not Mr. JAVITS. Yes. Mr. MUSKIE. Mr. President, I yield understand or am not sympathetic, or Mr. FULBRIGHT. I want to emphasize back the remainder of my time. because there is no congressional that this applies only in peacetime. To- The PRESIDING OFFICER (Mr. power-there is; Congress can pass laws day there are no secrets, I believe, as to BIDEN). All remaining time having been about deployment. I must say to the Sen- where our troops are. Every day we read Yielded back, the question is on agreeing ator from Arkansas I have grave doubts about 70,000 in Germany, so many in to the amendment of the Senator from about a concurrent resolution. I doubt Ethiopia-we read about it almost daily Arkansas (Mr. FULBRIGHT). that the congressional power respecting in the press, as to where they are. This The amendment was rejected. the President's power, where both of applies only in peacetime. I am not un- Mr. JAVITS. Mr. President, I move them are in a given area, as in warmak- dertaking to deploy them in wartime. that the vote by which the amendment lug or in deployment, can be asserted Mr. JAVITS. Can the Senator tell us was rejected be reconsidered. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14200 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July 20, 19 73 Mr: TOWER. Mr. President, I move to lay that motion on the table. The motion to lay on the table was agreed to. The PRESIDING OFFICER (Mr. BIDEN). Pursuant to the previous order, the hour of 12 o'clock noon having ar rived, the Senate will now proceed to vote on amendment No. 366 of the Sen- ator from Missouri (Mr. EAGLETON). On this question, the yeas andF nays have been ordered. Mr. MANSFIELD. Mr. President, I ask unanimous consent that I may suggest the absence of a quorum briefly. The PRESIDING OFFICER. The Sen- ator has that right. The clerk will call the roll. The second assistant legislative clerk proceeded to call the roll. Mr. MANSFIELD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER (Mr; CLARK). Without objection, it is so or- dered. The question is on agreeing to amend- ment No. 366 of the Senator from Mis- souri (Mr. EAGLETON). On this question the yeas and nays have been ordered, and the clerk will call the roll. The assistant legislative clerk pro- ceeded to call the roll. Mr. ROBERT C. BYRD. I announce that the Senator from Virginia (Mr. HAR- RY F. BYRD, JR.), the Senator from Indi- ana (Mr. HARTKE), the Senator from Wyoming (Mr. McGEE), the Senator from Arkansas (Mr. MCCLELLAN), and the Senator from South Dakota (Mr. MCGOVERN) are necessarily absent. I also announce that the Senator- from Mississippi (Mr. STENNIS) Is absent be- cause of illness. Mr. GRIFFIN. I announce that the Senator from New Hampshire (Mr. COT- TON) and the Senator from Arizona (Mr. GOLDWATER) are absent because of illness NAYS-53 Aiken Eastland McIntyre Allen Ervin Metcalf Baker Fannin Muskie Bartlett Fong Nunn Beall Griffin Pastore Bellmon Gurney Pearson Bennett Hansen Roth Bentsen Helms Saxbe Bible Hollings - Scott, Pa. Biden Hruska Sparkman Brock Huddleston Stafford Brooke Humphrey Taft cannon Jackson Talmadge Chiles Javits Thurmond Cook Johnston Tower Curtis Long Weicker Dole Magnuson Young Domenici McClure NOT VOTING-13 Buckley Goldwater Percy Byrd, Hartke Scott, Va. Harry V., Jr. McClellan Stennis Cotton McGee Stevens Dominick McGovern So Mr. EAGLETON'S amendment (No. 366) was rejected. Mr. ,TAVITS. Mr. President, I move to reconsider the vote by which the amend- ment *as rejected. Mr. GRIFFIN. I move to lay that mo- tion oil the table. The motion to lay on the table was agreed to. from Illinois (Mr. PERCY) would vote .,yea.." The result was announced-yeas 84, nays 3, as follows: (No. 311 Leg.] YEAS--84 Aiken Fannin Montoya Baker Fong Moss Bartlett Fulbright Muskie Bayh Gravel Nelson Beall Griffin Nunn Bellmon Gurney Packwood Bennett Hansen Pastore Bentsen Hart Pearson Bible Haskell Pell Biden Hatfield Proxmire Brock Hathaway Randolph Brooke Hollings Ribicoff Burdick Hruska_ Roth Byrd, Huddleston Saxbe Harry F., Jr. Hughes Schweiker Byrd, Robert C. Humphrey Scott, Pa. Cannon Inouye Sparkman Case Jackson Stafford Chiles Javits Stevenson Church Johnston Symington Clark Kennedy Taft Cook Long Thurmond Cranston Magnuson Tower Curtis Mansfield Tunney Dole Mathias Weicker Domenici McClure Williams Eagleton McIntyre Young Eastland Metcalf Ervin Mondale NAYS--3 Alley Helms Talmadge NOT VOTING-13 Abourezk Hartke Scott, Va. Buckley McClellan Stennis Cotton McGee Stevens Dominick McGovern Goldwater Percy DISTRICT OF COLUMBIA APPROPRIATIONS, 1974 The PRESIDING OFFICER. Under the previous order the Senate will pro- ceed to vote on H.R. 8658, which the clerk will state by title. The bill was stated by title, as follows: A bill (H.R. 8658) making appropriations for the: government of the District of Colum- bia and other activities chargeable in whole or in part against the revenues of said District for the fiscal year ending June 30, 1974, and for other purposes. The PRESIDING OFFICER. On this question the yeas and nays have been or- dered, and the clerk will call the roll. The second assistant legislative clerk called: the roll in their respective families. Mr. ROBERT C. BYRD. I announce The Senator from Alaska (Mr. STEP- that the Senator from South Dakota ENS) is absent by leave of the Senate on (Mr. ABotREzK), the Senator from In- account-of illness in his family. diana (Mr. HARTKE), the Senator from The Senator from New York (Mr. Arkansas (Mr. MCCLELLAN), the Senator BUCKLEY), the Senator from Colorado from Wyoming (Mr. MCGEE), and the (Mr. DOMINICK), and the -Senator from Senator from South Dakota (Mr. MC- Illinois (Mr. PERCY) are necessarily GovEiN) are necessarily absent. absent. The Senator from Virginia (Mr. ScoTT) I also announce that the Senator from Mississippi (Mr. STENNIS) is absent be- ts absent on official business. cause of illness. If present and voting, the ' Senator Mr. GRIFFIN. I announce that the from Illinois (Mr. PERCY) would vote Senator from New Hampshire (Mr. "nay." COTTON), and the Senator from Arizona The result was announced-yeas 34, 011- GOLDWATER) are absent because of nays 53, as follows: [No. 310 Leg.] YEAS-34 Abourezk Haskell Packwood Bayh Hatfield Pell Burdick Hathaway Proxmire Byrd, Robert C. Hughes Randolph Case Inouye Ribicoff Church Kennedy Schwelker Clark Mansfield Stevenson Cranston Mathias Symington Eagleton Mondale Tunny Fulbright Montoya Williams Gravel Moss Hart Nelson illness in their respective families. The Senator from New York (Mr. BUCKk.EY), and the Senator from Alaska (Mr. STEVENS) is absent by leave of the Senate on account of illness in his fam- ily. The Senator from Colorado (Mr. DoMI- NICK) and the Senator from Illinois (Mr. PERCY) are necessarily absent. The Senator from Virginia (Mr. SCOTT) is absent on official business. If present and voting, the Senator So the bill (H.R. 8658) was passed. Mr. BAYH. Mr. President, I move that the Senate reconsider the vote by which the bill was passed. Mr. MANSFIELD. I move to lay that motion on the table. The motion to lay on the table was agreed to. Mr. BAYH. Mr. President, I move that the Senate insist upon its amendments and request a conference thereon with the House of Representatives, and that the Chair be authorized to appoint the conferees on the part of the Senate. The motion was agreed to; and the Pre- siding Officer (Mr. CLARK) appointed Mr. BAYH, Mr. MCCLELLAN, Mr. Imiou ', Mr. CHILES, Mr. EAGLETON, Mr. MATHIA$, and Mr. BELLMON conferees on the part of the Senate. MESSAGES FROM THE PRESIDENT Messages in writing from the Presi- dent of the United States, submitting nominations, were communicated to the Senate by Mr. Leonard, one of his sec- retaries. EXECUTIVE MESSAGES REFERRED As in executive session, the Presiding Officer (Mr. CLARK) laid before the Sen- ate messages from the President of the United States submitting sundry nomi- nations, which were referred to the ap- propriate committees. (For nominations received todcy, see the end of Senate proceedings.) Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20,"'1973 CONGRESSIONAL RECORD -SENATE WAR POWERS ACT The Senate continued with the con- sideration n of the bill, (S. 440) to make rules governing the use of the Armed Forces of the United States in the ab- sence of a declaration of war by Con- gress. Mr. FULBRIGHT. Mr. President, I ask unanimous consent that I may be per- mitted to yield to the Senator from North Carolina (Mr. ERvIN) for 5 minutes, with- out the time being charged to either side. The PRESIDING OFFICER. Without objection; it is so ordered. Mr. ERVIN. Mr. President, despite the popularity of the so-called war powers bill, I cannot in good conscience sup- port it. The reasons for my opposition " are extremely simple. The Constitution clearly makes a distinction between two kinds of wars. The 11th clause of section 8 of the first article gives Congress the power to declare war. That clearly refers to any offensive war In which the United States may engage. This is made manifest by section 4 of article IV which says: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion; ... Now the question occurs, By what offi- cial is that power to be exercised? It is clearly to be exercised by the President, because section 2 of article II of the Constitution says: The President shall be Commander in Chief of the Army and the Navy of the United States ... This bill provides in section 5 that the President of the United States, as the Commander in Chief of the Army and Navy of the United States, cannot exer- cise his constitutional power, yea, his constitutional duty, to protect this coun- try against invasion for more than 30 days without the consent of the Congress. We hear much nowadays about the separation of powers. Here is a power and a duty which the Constitution clearly imposes upon the President of the United States, to use the Armed Forces to pro- tect this country against invasion. And here is a bill which says expressly that the President of the United States can- not perform his constitutional duty and cannot exercise his constitutional bower to protect this country against invasion for more than 30 days without the af- firmative consent of Congress. Mr. President, those are the reasons for my opposition to the bill. And I thank my good friend, the Senator from Ar- kansas for his great generosity in yield- ing me 5 minutes in which to speak at this time. Mr. GRIFFIN. Mr. President, will the Senator yield for a brief elaboration of his point? Mr. ERVIN. I yield. Mr. GRIFFIN. Mr. President, is it not true if we recognize, as this bill does, that the President does have power under the Constitution for 30 days, that it is a little bit unusual and indeed impractical to suggest that we can limit his constitu- tional power by simple statute and limit it arbitrarily to 30 days? Mr. ERVIN. The Senator is correct. In my opinion, in spite of the good purposes of the bill and the lofty motives of those who support it, I think the bill is an ab- surdity as a practical matter.. We used to have a lot of fighting in my old hometown around the court square. We had an ex-sheriff by the name of Alex Duckworth, who drove by there in his buggy one day when two men were in a fight. The ex-sheriff asked, "Whose fight is this?" One of the fighting men said, "Any- 'body's." The ex-sheriff said, "I am In it." One of the other men gave him a hefty punch on the jaw and knocked him down. The ex-sheriff jumped up and said, "I am out of it." This measure is an absurdity. It says that when the United States is invaded, Armed Forces of the United States must get out of the fight against an invader at the end of 30 days if the Congress does not take affirmative action within that time to authorize the President to con- tinue to employ the Armed Forces to resist the invasion. The bill is not only unconstitutional, but is also impractical of operation. In short, it is an absurdity. Under it, the President must convert Old Glory into a white flag within 30 days if Congress does not expressly authorize him to perform the duty the Constitu- tion imposes on him to protect the Nation against invasion. Mr. GRIFFIN. Mr. President, as a Senator on this side of the aisle, I want to thank a proponent of the bill for yielding time to an opponent of the bill. Mr. FULBRIGHT. Mr. President, I did not yield the floor. . The Senator asked me If as a matter of courtesy, I would yield to him. I asked that the Senator be given 5 minutes with- out it being charged to either side. I had the right to the floor under the previous agreement. Mr. GRIFFIN. Of course. Mr. FULBRIGHT. Mr. President, I do not want to make a point of it. I do not happen to agree with the Senator from North Carolina. He has fallen prey to the same illusions as many other people in the country, that the only person who is Interested in the security of the United States is the President of the United States. I remember the first time that Sec- retary of Defense Laird came up to tes- tify before the Foreign Relations Com- mittee. He emphasized that now that he had left the Congress and gone over to the Office of Secretary of Defense, he had a very special responsibility for the security of the United States that over- roue everything else and that he was the only man qualified to say what was in the interest and security of the United States. I am afraid, I must -say, with all due deference to a man rendering such im- portant service to our country today, that I think his statement was a statement to the effect that the Congress had no in- terest in the security of the United States or in protecting the Nation's Institutions. I do not believe that. I think that the President can be misled more easily than Congress as to what is in the security of the United States and as to what is a proper way to protect the independence of Arkansas or North Carolina. I do not accept the basic assumption that all wisdom resides in the White House, no matter who the occupant is. Mr. ERVIN. Mr. President, will the Senator yield? Mr. FULBRIGHT. Mr. President, I yield for a question. Mr. ERVIN. Mr. President, I want to say that the Senator from North Caro- lina does not adhere to the assumption that the Senator from Arkansas insin- uates he does on this occasion. The Senator from North Carolina has fought hard to sustain the doctrine of the separation of powers and to secure the recognition of the powers of the Con- gress. However, the Senator from North Carolina will fight equally as hard to sustain the constitutional powers of the President. The Senator from North Carolina thinks that the Founding Fathers were acting in great wisdom when they sep- arated the powers of Government by making one public official, the Presi- dent of the United States, the Com- mander in Chief of the Army and Navy of the United States, rather than 100 Senators and 435 Representatives. I thank the Senator from Arkansas for his courtesy. Mr. HUMPHREY. Mr. President, the Senate's consideration of the war powers bill comes at a critical juncture in our history. If the Senate adopts the legislation as introduced by my distinguished col- league from New York, it will mark the end of one era and the beginning of another. For more than a quarter of a century, we have experienced a cold war, regional hot wars, and intermittent and pro- longed conflicts with varying levels of American Involvement. At the moment that we are at the threshold of at last halting American involvement in our longest was, the Con- gress appears ready to redefine its own war powers and those belonging to the President. It its clear that since the end of the Second World War fast changing mili- tary technology and new codes of inter- national political and military behavior have combined with growing Presidential power in spheres of both domestic and foreign policy. The result has been the accumulation of warmaking power in the hands of one man-the President of the United States. This state of affairs was known well by the men who wrote our Constitution. They had lived under the rule of a British king. They knew all too well that the absolute warmaking authority of a sovereign ruler was oppressive to his sub- jects, forced to pay for and die in wars declared in the "national interest" by a monarch. Determined to avoid the oppression of royal wars, the framers of our Constitu- tion granted the Congress the authority to declare war and the President was vested with the power of Commander in Chief. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14202 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July '20, I A In 1789 Jefferson wrote to Madison and commented on this vital separation-_ of authority : We have already given in example one ef- fectual check to the Dog of WBr by trans- ferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay The power to initiate war was firmly lodged with the Congress. As Madison stated, speaking of this principle: That the executive has no light, in any case, to decide the question, whether there is or is not cause for declaring war ... Congressional possession of warmak- Ing authority is firmly planted in our Constitution. It has been upheld by our highest court, by our Presidents and by great constitutional experts. Yet today-even as we speak-the Armed Forces of the United States are deployed in a war without the approval of the Congress. They are deployed, be- cause the President believes it in the national interest to bomb Cambodia-to make war by skirting article I, section 8 of the Constitution. This, of course, is not the first instance of a dangerous abuse which we might call "Presidential war." We have seen it before in this and other administrations. When a President initiates war, he is taking a power away from the Congress. His act is unconstitutional. He is breaking the law. The legislation we are considering to- day will, in fact, make more remote the possibility that we will again be involved in a presidentially initiated.war. It will do so not by reshaping or altering the constitutional powers of the President and the Congress. Rather, the war pow- ers bill defines, delineates, and in some ways refines the powers vested in each branch of Government by the Constitu- tion. The central focus of the bill is unde- clared wars. It governs the use of Armed Forces in the absence of a formal decla- ration of war. It is true that in today's world, formal declaration of war may be obsolete. But the authority of the Congress to authorize the initiation of war is certainly not obsolete. Critics of the war powers bill have stated that it is not needed-that his- torical precedents are sufficient to pro- vide adequate safeguards in the ab- sence of a, formal declaration of war. I do not believe this to be the case. The steady accretion of Presidential warmaking authority must be halted and limited by new statutory definitions of warmaking authority. The bill introduced by Senator JAVITS is precise in its definition of circum- stances and conditions when American Armed Forces can be introduced into hostilities. Section 3 of the war powers bill delineates by statute the implied emergency warmaking powers of the President. The further 30-day limita- tion on emergency actions taken under section 3 of the act reconciles the need for such actions in a day of instant com- munication with the necessity for con- gressional involvement in deciding great questions of war and peace. It is important to note that this meas- ure is not designed to tie a President's hands or slow our response to attack. The War Powers Act recognizes the need for quick response to attack. But it does not provide for the prolonged commit- ment of American forces without the approval of Congress. In redressing a severe. constitutional imbalance, the Congress is in a sense also stating publicly that it is ready to share the terrible burdens of committing a na- tion to war. This power has gone unshared for too many years. The result has been the prolongation of a tragic and costly war, the embitterment of a generation, and severe strains on our constitutional sys- tem of democratic government. The war powers bill offers the Con- gress an opportunity to restore the doc- trine of shared power between coequal branches of Government. The war powers bill offers the Con- gress an opportunity to prevent future American involvement in never-ending wars. And, finally, the war powers offers the Congress an opportunity to stop the seri- ous erosion of its own authority in a field vital to! the health and security of our Nation. Mr. 1i'ULBRIGHT. Mr. President, I call up amendment No. 387. The PRESIDING % OFFICER. The amendment will be stated. The assistant legislative clerk read as follows: On page 3, line 1, strike out through line 6 on page 4 and insert in lieu thereof the following: "SEC. 3. In the absence of a declaration of war by the Congress, the Armed Forces of the United States may be employed by the President only- "(1) to respond to any act or situation that endangers the United States, its territories or possessions, or its citizens or nationals when the necessity to respond to such act or situation in his judgment constitutes a na- tional emergency of such a nature as does not permit advance congressional authoriza- tion to employ such forces; or" On page 4, line 7, strike out "(4)" and insert ixl lieu thereof "(2) ". On page 5, line 9, strike out "(4)" and Insert in lieu thereof "(2)". Mr. 7 'ULBRIGHT. Mr. President, be- fore I make these remarks, I certainly want tol reiterate my admiration and re- spect for the sponsors of this legislation. We have had excellent hearings, and they have produced some very useful information on one of the most im- portant aspects of our Government. And the differences of view, as I have already stated, are related not to the objective of the legislation, but to some of the pro- visions that go to the means or, as the Senator from New York likes to call it, the methodology of this effort to bring a greater responsibility on the part of the Congress into the warmaking activ- ities of our country. Obviously we all know that grows out of the extreme tragedy and the extreme injury, the enormous injury, that has occurred to this country as a result of the happenings during the last 10 years. Mr. President, although the intent of the bill Is unexceptionable, it seems to me that the bill could be improved in several respects. Mr. President, I must say that we dis- cussed this and I - offered a similar amendment in the committee. So, it is not a new attitude on my part. The first problem lies with section 3, which catalogs the various conditions under which the President would be permitted to make emergency use of the Armed Forces. These conditions, in my view, go too far in the direction of Exevu- tive prerogative, especially in allowing the President to take action not only to "repel an armed attack"-With which we all agree, I think-but also to "forestall the direct and imminent threat of such an attack" on the United States or its Armed Forces abroad. The danger here is that these provisions could be can- strued as sanctioning a preemptive, or first strike, attack solely on the Presi- dent's own judgment, Should the Presi- dent initiate such a preemptive attack, the 30-day limitation provided for in sections 5 and 6 of the bill might prove to be ineffective, or indeed irrelevant, as a congressional check on the Presider..--- all the more for the fact that the 30=play limit on Presidential= discretion Is by no means absolute. The provisions authoriz- ing the President to "forestall the direct and imminent threat" of an attack cculd also be used to Justify actions such as the Cambodian intervention of 1970 and the Laos intervention of 1971, both of which were explained as being `necessary to forestall attacks on American forces The emergency powers of the President spelled out in section 3 of the committee bill in their extensiveness may have the unintended effect of giving away more power than they withhold. The extexulon of the President's power to use the Armed Forces to "forestall" an attack before it takes place may well go beyond the President's constitutional authority. Un- der the Constitution strictly construed, besides a "sudden attack" on U.S. territory, the only gjhher circumstar..ces warranting unauthorized Presidential use of the Armed Forces are an attack on the Armed Forces of the United States stationed outside of the country and an imminent threat to the live:, of American citizens abroad, the latter of which would justify only a brief military operation for purposes of evacuation. The bill appears to me to deal more or less satisfactorily in paragraph (3) of section 3 with the matter of protect- ing the lives of Americans abroad; it goes too far in paragraphs (1) and (2), how- ever, in allowing of discretionary Presi- dential action to "forestall the direct and imminent threat" of an attack on the territory or Armed Forces of the United States. Rather than spell out what amounts to Presidential discretion to mount; a preemptive attack, I am inclined toward a simple abbreviated provision allowing emergency use of the Armed Forces by the President. Alternately,'there may be merit in simply abstaining from the at- tempt to codify the President's em er- gency powers, which is the approach of Congressman ZASLOCxi's bill, House Jcint Resolution 542, adopted by the House of Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973Approved For ftGI ESSIS8Nk0 kyt 75~( J 000700090010-9 Representatives on July 18 by a vote of 244 to 170. In practice, it Is exceedingly difficult to draw up a list of emergency conditions for Presidential use of the Armed Forces which does not become so long and extensive a catalog as to con- stitute a de facto grant of expanded Presidential authority. The list of con- ditions spelled out in section 3 of the committee bill, is, in my opinion, about as precise and comprehensive a list as can be devised, and its purpose, I fully -recognize, is not to expand Presidential power, but to restrict it to the categories listed. Nevertheless, I am apprehensive that the very comprehensiveness and precision of the contingencies listed in section 3 may be drawn upon by future Presidents to explain or justify military initiatives which would otherwise be diffi- cult to explain or justify. A future Presi- dent might, for instance, cite "secret" or "classified" data to justify almost any conceivable foreign military initiative as essential to "forestall the direct and im- minent threat" of an attack on the United States or Its Armed Forces abroad. For these reasons I am much inclined either to say nothing about the Presi- dent's emergency powers as in the House bill, or to include a'simple substitute for paragraphs (1), (2), and (3) of section 3 of the committee bill, in which it would simply be recognized that the President, under certain emergency conditions, may find it absolutely essential to use the Armed Forces without or prior to con- gressional authorization. This approach too has its dangers as it would of ir- responsible or extravagant interpreta- tion, but at least it would place the bur- den of accountability squarely upon the President, where It belongs, and it would also of course be restricted by the 30- day limitation specified in sections 5 and 6 of the bill. Mr. President, I wish to emphasize this particular point by saying that the mat- ter is one of judgment on the psychology of a reasonable person. If we undertake In advance to specify the conditions un- der which the President can act, he can rationalize whatever the circumstances are to fit those designated conditions. He will then feel free to proceed as he sees fit and feel authorized in doing it. Without that, I think he would do one of two things: He would be extremely cautious, if it is at all doubtful, or, he would consult Congress. It is the collective judgment of the Congress and the President working to- gether which I think our system regards as of fundamental importance, and it is that aspect of it which this and many other efforts we have engaged in seek to emphasize, that is, that it be a collec- tive judgment. It is my own judgment of the psychology of the situation that the President, having these specifics in hand, would say, "Well, those are the condi- tions that exist" and proceed out of hand, either without reflecting fully himself upon the conditions, or without consulting Congress to any degree at all. Under the language of paragraphs (1), (2), and (3) of section 3 of the bill the Executive could cite fairly specific au- thority for the widest possible range of military initiatives. Under the simpler, more general approach I propose, the President would remain free to act, but without the prop of specific authoriza- tion; he would have to act entirely on his own responsibility, with no advance assurance of congressional support. A prudent and conscientious President, under these circumstances, would hesi- tate to take action that he did not feel confident he could defend to the Con- gress. He would ? remain accountable to Congress for his action to a greater ex- tent than he would if he had specific authorizing language to fall back upon. Congress, for its part, would retain its uncompromised right to pass judgment upon any military initiative taken with- out its advance approval. This reminds me very much of the use that President Johnson made of the Tonkin Gulf resolution. He used to pull it out whenever anyone raised any ques- tion about it, and point to the language. He never did point out that he obtained that language by misrepresenting the facts in the case of Tonkin Gulf. Confronted with the need to explain and win approval for any use of the Armed Forces on the specific merits of the case at hand, a wise President would think carefully before acting; he might even go so far as to consult with Mem- bers of Congress as well as with his per- sonal advisers before committing the Armed Forces to emergency action. For these reasons, it appears to me that a general, unspecified authority for making emergency use of the Armed Forces, though superficially a broad grant of power, would In practice be more restric- tive and inhibiting than the specific grants of emergency power spelled out in paragraphs (1), (2), and (3) of sec- tion 3 of the committee bill. Alternate- ly-perhaps preferably-the same objec- tive could be achieved by simply leaving out any attempt to codify the President's emergency powers, which is the approach of the House bill. To deal with these difficulties I recom- mend the substitution of the following for the introductory clause and first three paragraphs of section 3 of the com- mittee bill-page 3, line 1, through page 4, line 6: SEC. 3. In the absence of a declaration of war by the Congress, the Armed Forces of the United States may be employed by the President only- (1) to respond to any art or situation that endangers the United States, its territories or possessions, or its citizens or nationals when the necessity to respond to such act or situation in his judgment constitutes a na- tional emergency of such a nature as does not permit advance congressional authoriza- tion to employ such forces. Another, related problem arises in con- nection with section 5 of the committee bill, which specifies a 30-day limitation for emergency use of the Armed Forces by the President. Under the committee bill, this limitation allows of an excep- tion which might in practice prove to be a loophole so gaping as to nullify the 30- day limitation entirely. The committee bill states that the emergency use of the Armed Forces by the President may be sustained beyond the 30-day period, with or without con- S 14203 gressional authorization, if the Presi- dent determines that unavoidable mili- tary necessity respecting the safety of the Armed Forces requires their con- tinued use for purposes of bringing about a prompt disengagement from hostili- ties. In this connection, it will be re- called that President Nixon prolonged the Vietnam war for 4 years under the excuse of unavoidable military necessity respecting the safety of the Armed Forces. This escape clause could reduce to meaninglessness the entire provision limiting the President's emergency power to 30 days. The approach taken by the House bill is in this respect much su- perior inasmuch as it allows of no such escape clause. Section 4(b) of the bill passed by the House states simply that, within the 120-day emergency period specified in the House bill : The President shall terminate any com- mitment and remove any enlargement of United States armed forces . unless the Congress enacts a declaration of war or a spe- cific authorization for the use of United States Armed Forces. Although I prefer the 30-day emer- gency period of the Senate Foreign Re- lations Committee's bill to the 120-day emergency period of the House bill, the latter, nonetheless, provides more effec- tively for congressional authority to de- cide whether or not any given military action may be continued beyond the emergency period. Another, similar problem arises in con- nection with section 6 of the committee bill, under which Congress could require the termination of military action with- in the 30-day emergency period only by act or joint resolution, which of course would be subject to veto by the Presi- dent. In addition, section 6 of the committee bill, like section 5, makes a complete ex- ception to the congressional termination power in any case where the President judges that "unavoidable military neces- sity respecting the safety of the Armed Forces" requires their continued use in the course of bringing about a prompt disengagement from hostilities. The re- quirement of Presidential signature for . an act of termination, combined with the exception of unavoidable military neces- sity, reduce to meaninglessness the os- tensible power to Congress to terminate hostilities within the 30-day emergency period. The approach taken by the House bill in this respect, as in the case of mili- tary action beyond the initial emergency period, seems much superior. Section 4(c) of the House bill would authorize Congress to require the Presdient to ter- minate military action within the emer- gency period simply by concurrent re- solution. Since a concurrent resolution does not require the signature of the President, this approach would eliminate the possibility of Presidential veto of a congressional act of termination. Fur- thermore, in the matter of terminating military action within the emergency period as well as allowing it to continue beyond the emergency period, the House bill contains no such gaping escape hole as the unavoidable military necessity spelled out in sections 5 and 6 of the Sen- ate committee bill. The House bill, there- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14204 Approved For Release 2005/06/06: CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20; !1 i 3 fore, provides not only for congressional authority to decide whether military ac- tion will be sustained beyond the emer- gency period; it also provides more ef- fectively for congressional authority to terminate military action within the emergency period. Mr. President, I have been very much troubled by the possible effect, of section 6, in which Congress seems to be saying or assuming that it does not already have the authority to legislate in these cases. It gives itself the power to kegislate and then it takes away that power where the President has determined and certified to Congress in writing that there is an unavoidable military necessity respect- ing the safety of the Armed forces. This contemplates action. so similar to that which has happened in Cam- bodia and Southeast Asia that it raises very serious problems in my mind. It seems to me that section 8 -would dele- gate power to the President to prevent Congress from doing what it can now do, by act or joint resolution, to terminate hostilities. I want to read, just for the record, to emphasize what I have in mind, sec- tion 6: The use of the Armed Forces of the United States in hostilities, or In any situation where imminent involvement -to hostilities is clearly indicated by the circumstances, under any of the conditions -=described in section 3 of this Act may be terMinated prior to the thirty-day period specifd in section 5 of this Act by an Act or joint resolution of Congress, engaged pursuant to section 3 (1) or 3(2) of this Act requires the con- tinued use of such Armed Forces in the course of bringing about a prompt dis- engagement from such hostilities. It seems to me quite clear we already have that power to terminate, without- this bill. That is power which Congress already has, but under section 6 the President could take it away, by deter- mining and certifying to Congress in writing that there is an unavoidable mil- itary necessity respecting the safety of the Armed Forces. Mr. President, it has occurred to me, in reading this, that if this becomes law, then the actions which were taken with. regard to the use of our fortes in Cam- bodia-for example the Cooper-Church amendment-would be prohibited. In other words, this action weld seem to me to abrogate a power that already belongs to Congress and which Congress has exercised. To some extent, that power was ex- ercised in the case of Cambodia, but it was not effective because there was a loophole with regard to the bombing; but insofar as the terms provided, it was effective. But article 6 would seem, now, to take away and to reduce the existing power of Congress by an act to terminate hostilities. The Cooper-Church amendment was hailed at the time as a significant move on the part of Congress to reduce at least our exposure and a continuation of our activities in Cambodia. It did not exclude use of the bombers, although I think the subsequent use, and even the prior use- which we did not know about--went far beyond that contemplated by the lan- guage and intent of the Cooper-Church amendment. In any case, this bothers me very much. I would certainly hate to realize that this should be found to have re- moved from Congress one of the existing powerswhile we think we are trying to restrict the power of the President. It would certainly, indeed, be ironic if, in- stead of restricting the power of the President, we restricted the power of Congress to terminate hostilities once they had begun. Mr. President, I yield the floor. Mr.. AVI'I S. Mr. President, I yield my- self, in opposition, as much time as I may require. Mr. President, the distinguished chair- man of the Committee on Foreign Rela- tions made the same effort in 1972 when the bill! was last considered, with one ex- ception. At that time, he also had in- cluded; in the same amendment some special, provision respecting the use of nuclear weapons. This consideration which we are asked to undertake now is only a new consid- eration, in that that particular provision has been omitted. It was debated and defeated in the committee markup ear- lier this year. The fundamental issue is this: Shall the Cotrigress at the time that It de- lineates and fights for its own power, specify; the parameters of its power in order to specify the parameters of the President's power? Or shall it not? The drafters of the bill came down on the side of delineating both in order to leave both certain rather than both uncertain. If we avant to delineate a part of the whole, then we have to delineate the other part, and that is what we tried to do. The amendment of the Senator from Arkansas goes precisely the other way and adopts what is really by implication the approval of the House bill. We ap- proach' it by acknowledging that a Pres- ident has-as the Founding Fathers anticiplated-the authority to repel sudden' attacks. That was why the 1787 Constitutional Convention, in its final markup, changed the wording from "make war," which is the way it was first brought in in the Constitutional Conven- tion, and as it was in the Articles of Confederation, to "declare war." They said they wanted to leave the President the power to repel sudden at- tacks. They were very prescient, because the word "sudden" is critically impor- tant, "Sudden" is the essence of "emer- gency." And from this we have deline- ated and codified the emergency situa- tions in updated, contemporary language and context. So the question is, What is needed to repel an attack in point of time frame as well as force? We can regulate the time frame. We have taken a period which seemed rea- sonable, 30 days, and said that is the time frame. This,, in order to be effective as a de- lineation of authority between the Pres- ident and Congress, requires that we con- firm him in his authority as well. There is, In nay judgment, reliable authority for the way in which we have confirmed the Preside{rit in his authority, and that is the testimony of Professor Bickel of Yale, one of the really outstanding experts in the field. He testified on this bill only a few months ago, on April 11, 1973. This is what he said: A second question that is raised about the declaration of Presidential power in section 3 is whether it would not be better in any case to leave independent, exclusive Presi- dential powers unstated, so that in any in- stance of their exercise the responsibility will clearly be the President's alone, and so that no words have been put on paper, h"ever carefully and precisely, which under any cir- cumstances might be given a latitudinarian construction. That is the very argument made by Senator FULBRIGHT in favor of his amend- ment. Professor Bickel then goes on to may: The answer to this question that I find persuasive is that the actual draft of section 3 of S. 440 is - precise and is, on any fair reading, not only a full Implementation of the constitutional grant to the President, but also more restrictive than many a claim of power that has in past years been made by Presidents, and Indeed acted upon. Moreover, as a matter of effective drafting, it seems to me impossible to state with any clarity what is reserved to Congress without stating first what belongs to the President. The task is one of linedrawing, of separcting one thing from another, and in doing sc one must state what is on both aides of the line. This, it seems to me, is very authorita- tive support for the position I have taken. Mr. President, the 30-day period, wiich ties into this specification of what ,on- stitutional powers the President practi- cally has, takes cognizance of the living fact that an incident can become a war. Therefore, we give that spell of time in which the incident, may perhaps cease and not become a war, in which case there would be no ground for coiUres- sional action. Where the incident is or is about to become a war, the War Pow- ers Act becomes effective. Second, we delineate the powers of the President for the purpose ofmaking more clear the powers of Congress; and how they are to intermesh. You cannot delineate a part unless you delineate the other parts to encompass the whole. I think this is fundamental to this bill. We in Congress cannot assume thas we are going to get off scot-free. We must respect the President's pow- er, while we use this opportunity tc re- establish our own, and they are not a bit inconsistent. This is really what thi bill is all about. I regard the specification of the au- thority of the President to be a critically important element of the bill. Specificity is the very thing we have all been Mak- ing for. That is why we have been com- plaining that the "President's men," so- called, claim the moon and the stars for him. We have some truly extraordi- nary quotations. I will not delay the Sen- ate with reading long quotations, but we have some truly long quotations of what the so-called President's men-to wit, the people' who speak of the "strong" P:?esi- dency-have been claiming on the part of the President. They claim very illimit- able, self-defined authority, especially respecting war and "national security." Let me read just a few of them, so that the Senate may have an idea of the effort to bring into realistic focus the powers of the President. For example, Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/pg/ 6-~CC R~ppP7 000700090010-9 S 14205 July 20, 1973 CONGRESSIONAL RR RD President Johnson said, in speaking of the Gulf of Tonkin resolution on August 18, 1967: We stated then, and we repeat now, we did not think the resolution was necessary to do what we did and what we're doing. But we thought it was desirable and we thought if we were going to ask them [Congress] to stay the whole route and if we expected them to be there on the landing we ought. to ask them to be there on the takeoff. The legal officer of the State Depart- ment, testifying in 1966, spoke as fol-. lows: There can be no question in present cir- cumstances of the President's authority to commit U.S. forces to the defense of South Vietnam. The grant of authority to the President in Article II of the Constitution extends to the actions of the United States currently undertaken in Vietnam. One final statement. Secretary Ache- son really threw down the gauntlet to Congress when he testified in respect to President Truman's plan to station six divisions of U.S. troops in Europe. He said: Not only has the President the authority to use the Armed Forces in carrying out the broad foreign policy of the United States and implementing treaties, but it is equally clear that this authority may not be interfered with by the Congress in the exercise of powers which it has under the Constitution. Mr. President, in view of these very broad claims of Presidential authority to commit us to war and to wage war, if we do not specify statutorily the Presi- dent will make his own specifications tai- lored to his situation at the moment. This is just what has become intolerable. I believe one thing is critically im- portant. If we adopt this amendment, we are defying, it seems to me, the very purpose and intent of our reason for considering the war powers bill, and that is that there is no such thing as inde- pendent, absolute, discretionary author- ity in the President of the United States when it comes to war. He has to join with Congress. We un- derstand the exigencies and we provide for them, but essentially it provides he does not have'a free-wheeling mandate, limited only by time; for the effect of the Fulbright amendment would be to give him absolute, free-wheeling,'self-defined authority. I have heard some words of the Sen- ator from Arkansas (Mr. FULBRIGHT) which deeply disturbed me when I heard them, which carry out this philosophy, which says to the President, "You have 30 days to do what you want." The Con- stitution does not give that to him and neither does this bill. Ile has 30 days to defend the United States and its people in an emergency without statutory au- thorization. He does not have 30 days to do anything. That is not in the Consti- tution and it should not be, the law. I feel that the specificity we give him -deals with the Constitution as conceived and written, with certain pragmatism in terms of the security of the country and at the same time there is a rationaliza- tion of power given the President with body. The House approach is much more be withdrawn, almost one by one, from like the Fulbright approach. We think it a theater such as Southeast Asia over. a is wrong and very inadequate to the long period of time. occasion. I wish to ask the Senator from New I think it would be most unwise for the York a question. Will the Senator yield Senate to give away a considered judg- for a question? ment which has gone through so much Mr. JAVITS. Yes. distillation and which most recently was Mr. EAGLETON. I direct the atten- passed by a vote of 68 to 16 in 1972. tion of the Senator from New York to Mr. President, I hope the amendment page 6 of the bill, section 5, line 22, is rejected. where the words "prompt disengage- The PRESIDING OFFICER. Who ment" appear. I wish to refresh the Sen- yields time? ator's recollection, and correct me if I Mr. MUSKIE. I yield 3 minutes to the am wrong. We had a colloquy a year Senator from Missouri. ago on the same subject and we dis- The PRESIDING OFFICER. The Sen- cussed the meaning of "prompt disen- ator from Missouri is recognized. gagement." In the opinion of the Mr. EAGLETON. Mr. President, I shall Senator from New York, would "prompt be brief. disengagement" be so broad as to permit In his statement with respect to sec- the withdrawal of troops over 3 or 4 tion 3 of the bill, the chairman of the years? Committee on Foreign Relations paid Mr. JAVITS. Not remotely. "Prompt particular attention to section 3, subsec- disengagement" means as soon as the tions (1) and (2) relating to the Pres- tactical security situation permits. Not strategi the good "tactical ident's authority to forestall an attack. even And he also mentioned the rescue fea- tures of subparagraph (3). obligation of the President, which the I share some of his apprehension with bill seeks to import. respect to the forestall clauses. I did not Mr. EAGLETON. We cannot pinpoint include them in my original draft, but in it to a clock or a calendar, but I take it the compromise bill it was included. the Senator means weeks or months and rected I think the thrust of the Senator from not a if i JAVITS. year or I cannot conceive of that. Arkansas' argument would better di- It woMr. uld be straining the imagination or on tif in some forestall e clauses, ma manner he which I would would focus aee credulity. Hopefully, it would never be discre- more than days, or even hours. After may the h grant too much h Presidential agree m tion. But I think his approach with re- all, we have exceptional logistical capa- spect to amendment No. 387 is instead bilities for withdrawal. a general articulation of Presidential Mr. EAGLETON. I thank the Senator. authority as it is interpreted by the Ex- Mr. FULBRIGHT. Mr. President, what ecutive today. is the time situation? The Senator's other remarks go beyond The PRESIDING OFFICER. The Sen- the Fulbright amendment because the ator from on the amendment. has gr10 it The Sena- section amendment deals only with section 3 of the bill. The Senator went for from Maine has no time on the on to analyze and comment on sec- amendment. Mr. President, I tions 5 'and 6, the 30-day authorization Mr. period sections, and he paid specific at- will ment: time after or two willing very to yield brief comments. tention ." to the words "prompt disengage- Mr. President, the Senator from New This, too, is a troublesome passage of York is not present. I was only going to the bill. Last year when it was being de- comment on one of the statements he bated between the Senator from New made a moment ago. He did not address York, the Senator from Mississippi, and himself to my question about section 6, me, we tried to give a meaningful defini- that Congress now, without any doubt, tion to "prompt disengagement." has the authority to pass an act or joint What we had in mind in drafting the resolution restricting an ongoing war or section was the protection of Armed activity. We just' proved that in the case Forces for the purpose of expeditious dis- of Cambodia. seems to me, restricts that engagement only. The President could Section 6, not go off on a more expanded mission, by giving to the President the right to or get into an offensive war, prevent congressional action by simply Under that provision the troops are certifying the unavoidable necessity of to promptly disengage and they are to using the Armed Forces, which he has be protected solely for the purpose of done on several occasions. expeditious disengagement. I am a little I think that is unconstitutional. I do vague on this but I had an exchange not believe that Congress can by law say with the Senator from New York with that Congress would not have the right respect to how long "prompt disengage- to pass an act within the realm of its ment" might take. I asked if it could be own constitutional authority. as much as 3 or 4 years to promptly dis- The Cooper-Church provision said that engage, and he said "No," that "prompt there should be no use of our forces in disengagement" had in mind, by use of Cambodia. And here in section 6, it seems the word "prompt," that it could be a to me, it says that we cannot do that. matter of weeks or months, but certainly I question- its constitutionality. I do not years. not think that Congress can deprive it- I would be fearful, as would the Sena-, self of the power to pass an act or to regard to war. for from Arkansas, if we codified by Finally, this will be a very important "prompt disengagement" some eternal, issue in the conference with the other everlasting process by which troops could take any kind of Constitutional action. The Senator from New York did not address himself to that. However, I real- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14206, Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July 20, 1973 use that there are certain differenences war and to the use of United States Armed of view as to this approach, He likes the Forces !abroad. of opinion. None of us know for sure. SEC. 4. (a) Each report submitted pursuant The Senator from New York gives his to section 3 shall be transmitted to the view of what prompt disengagement Speaker of the House of Representatives and means. Of course, if he were the Presi- dent of the United States said we could count on it, I would agree with that. "Prompt disengagement" from Indo- china has been underway for 4 years. The President came into once and said he had a plan to end the war in Vietnam. It has been approximately 4 years. It is not really ended yet, although the major part has ended. Mr. President, I yield back the re- mainder of my time. The PRESIDING OFFICER. All time has been yielded back. The question is on agreeing to the amendment of the Senator from Arkansas (putting the question). The amendment was rejected. The PRESIDING OFFICER. The bill is open to further amendment. Mr. GRIFFIN. Mr. President, I call up my Amendment No. 368. The PRESIDING OFFICER. The clerk will report the amendment. The legislative clerk proceeded to state the amendment. Mr. GRIFFIN. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment reads as follows: Beginning with line 1 on page 2, strike out through the end of the bill and insert in lieu thereof the following: CONSULTATION SEC. 2. It Is the sense of the Congress that the President should seek appropriate con- sultation with the Congress before involving the Armed Forces of the United States in armed conflict, and should oantinue such consultation periodically during such armed conflict. to the President pro tempore of the Senate on the same day. Each report so transmitted shall be referred to the Committeeon Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate,! and each such report shall be printed as a document for each House. (b) If Congress is not in session when the report is transmitted, the Speaker of the House of Representatives and the President pro tempore of the Senate shall convene their respective House of Congress to consider any such report of the President. (c) Not later than five days after receiving any such report, unless a majority of such committee shall report out a bill or joint resolution approving the actions taken by the Presidei t, a bill or joint resolution prohibit- ing the! expenditure of any funds, from such date as St considers appropriate, shall be re- ported with respect to such commitment or enlarge ent. (d) (1)1 A bill or joint resolution reported under subsection (c) of this section shall be highly privileged in each House. It-shall be in order at any time after the third day follow- ing the' day on which such a bill or joint resolution is reported to move to proceed to its consideration (even though a previous motion to the same effect has been disagreed to). Such a motion to proceed to its con- sideration shall be highly privileged and shall not be debatable. An amendment to the mo- tion sill not be in order, and it shall not be in o der to move to reconsider the vote by which the motion is agreed to or dis- agreed to. (2) Debate on such bill or joint resolution, and all amendments thereto, shall not exceed five consecutive calendar days, which shall be divided equally between those favoring and those opposing the bill or joint resolu- tion. Once debate on such bill or joint reso- lution has begun, no other measure or matter may be considered by that House. A motion to recommit the bill or joint resolution shall not be in order, and it shall not be in order to move to reconsider the vote by which the --, .u -- V rltil'- ' " (3) Mgtions to postpone, made with respect wethhut a declaration of war by the Con- to the consideration of such a bill or joint resolution and motions to proceed to the (1) commits United States Armed Forces consideration of other business, shall be to hostilities outside the territory of the decided without debate. United States, its possessions a2ld territori- (4) A~peals from the decisions of the ties; or Chair relating to the application of the (2) commits United States Armed Forces rules of the Senate or the House of Repre- equipped for combat to the territory, air- sentativgs as the case may be, to the proce- space, or waters of a foreign nation, except dure relating to such a bill or joint resolution for deployments which relate solely to supply, shall be decided without debate. replacement, repair, or training of United (e) If, prior to the passage by a first House States Armed Forces; or of Congress of any such bill or joint resolu- (3) substantially enlarges United States tion of that House, such House receives from Armed Forces equipped for combat already the second House such a billor joint resolu- located in a foreign nation; tion, then the following procedure applies: the President shall submit promptly to the (1) Such bill or joint resolution received Speaker of the House of Representatives and from th second House shall be reported to to the President pro tempore of the Senate the first House not later than three days after a report, in writing, setting forth- being received. (A) the circumstances necessitating his (2) On any vote on final passage of such a action; bill or joint resolution of the first House, (B) the constitutional and legislative pro- such a bill or joint resolution of the second visions under the authority of which he took House shall be automatically substituted for such action; the bill or joint resolution of the first House. (C) the estimated scope of activities; (f) If ;there are differences in such a bill or joint resolution between the Senate and (D) the estimated financial Cost of such House oft Representatives, conferees on the commitment or such enlargement of forces; part of the Senate and the House of Repre- and sentatives shall be appointed not later than (E) such other information the Presi- two days after the House of Congress passing dent may deem useful to the Congress in the the bill or joint resolution last passes such fulfillment of its constitutional responsibili- bill or jdi nt resolution, unless within those ties with respect to committing the Nation to two two flays both Houses of Congress agree upon the same total amount of outlays of the United States Government with respect to such fiscal year without the convenag of a committee of conference. Upon appoint- ment of conferees, the committee of confer- ence shall meet immediately to resolve their differences. The provisions of subsection (d) shall be applicable with respect to the con- sideration of any report ' of a committee of conference on any bill or joint resolution. (g) Subsections (b) -(f) of this section are enacted by the Congress- (1) as an exercise of the rulemaking pow- ers of the Senate and the House of Riepre- sentatives, respectively, or of that House to which they specifically apply; and such rules shall supersede other rules only to the extent that they are Inconsistent therewith; and (2) with full recognition of the constitu- tional right of either House-to change such rules (so far as relating to the procedwe in such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House. SAFETY OF UNITED STATES ARMED LORCI S SEC. 5, The commitment of United q ,a tes Armed Forces or the enlargement of those forces with respect to the actions of the Pres- ident referred to in any report made under section 3 of this Act shall be continued or terminated only in accordance with law and the Constitution. However, no provisto't of law shall be construed as terminating any such commitment or enlargement when the President determines and certifies to Con- gress unavoidable military necessity res.Iect- ing the safety of the United States Armed Forces requires the continued use of much Armed Forces for the purpose of bringing about a prompt disengagement of t:tose forces. Mr. GRIFFIN. Mr. President, last year, I reluctantly voted for a measure which was similar in many respect to the one before us now. I indicated then that I had serious reservations about its con- stitutionality, and I hoped that the House would make improvements it it. Earlier this year I did not object when the Committee on Foreign Relations re- ported this measure for debate by the Senate. Despite my reservations and con- cerns, as a member of the Foreign A.- la-Lions Committee, I believed then, I be- lieve now, that this important mF as- ure-which is the product of long study and hard work by the distinguished Sen- ator from New York (Mr. JAVrrs)-sired other Senators-deserves and is entitled to the consideration and debate which is being accorded it now by this body. The decision to vote "no" on final pas- sage is a very difficult one for me, pari:ic- ularly since I realize that my vote is likely to be misinterpreted In some quar- ters. I have concluded that I shall vote against this measure because I am con- cerned and convinced that enactment of this bill would lead to more 'wars, :tot fewer. I recognize also that the position I take is not likely to prevail-when the final vote is taken later today. But I am also con- vinced that this measure will not become law this year over the veto of the Presi- dent-and that veto is certain. Because that is so, I believe it can be useful in the course of this debate, not only to focus on the deficiencies in and objections to the pending bill, but also to point out that there are alternatives constitutional routes that could be taken to achieve the essential purpose of S. 9:40 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 197$4pproved For 75B 380R000700090010-9 N A TE S 14207 without tying the President's hands in language and effect of S. 440 is to do ex- tial veto, I believe a practical, constitu- advance. actly what the reports say it would not tional alternative to S. 440 is needed and The amendment I am suggesting now do: It does seek to alter the constitu- should be considered. it is for those is put forth for educational purposes- tional powers of the President. Leaving reasons that I have developed my and for future consideration-rather aside questions about the wisdom of such amendment. than for immediate action. changes, the cold fact is that changes in S. 440 provides that the President, for I want to demonstrate that there are constitutional powers cannot be accom- a period of up to 30 days, can introduce other ways to go-constitutional ways. plished except by amending the Consti- U.S. Armed Forces in hostilities, or, in At the same time, I realize that this tution. situations where imminent involvement alternative is complex that it has been Section 5 of S. 440 declares that with- in hostilities is clearly indicated only in developed at a late date and that it out prior approval of Congress the response to an armed attack on U.S. ter- should be the subject of hearings. Armed Forces of the United States can- ritory or against U.S. forces abroad, or to During the last few days, as printed not be introduced by the President for a direct and imminent threat thereof or copies of this amendment have been cir- more than 30 days, in hostilities, or, in in the case of assisting Americans in culating among my colleagues, I have any situation where "imminent involve- certain cases. received a number of constructive sug- ment in hostilities" is indicated except This means that a President would be gestion t s theich indicate that, appropriate in tide 3the four situations described in sec- prohibited in the absence of prior ap- thrus of correct-some details still need to Clearly, , by this provision the propo- _ foproval rces fortes In by situations from employing U.S. ons where: be worked out. nents of this bill acknowledge that there First, there is no armed attack on Accordingly, I shall not press for a are situations and times when the Pres- U.S. territory or U.S. forces, or direct and vote on this amendment today. But its ident is justified, and empowered under imminent threat thereof, and very existence as an alternative for fu- the Constitution, to commit U.S. Armed Second, the situation is such that im- ture consideration helps, I hope, to put Forces to hostilities without prior con- minent involvement in hostilities could my reasons for opposition to the pending gressional approval. Once that Presiden- be clearly indicated by the circum- bill in perspective. tial power is acknowledged, i am at a loss stances. Unfortunately, S. 440, before us now, to understand how Congress by statute This feature of the bill could have would raise up serious doubts about the could constitutionally impose an arbi- dangerous implications for American authority of the President in times of trary 30-day limitation on such Presi- foreign policy, or for the safety of the crisis. It would encourage unfortunate dential authority. United States, and for the prospects of miscalculations on the part of potential Certainly, no arbitrary time limit is peace in the world. enemies; it would seriously impair the expressed in, or can be inferred from, The modernization and expansion of conduct of our foreign relations, it would the Constitution itself. The committee Soviet military strength in Europe and weaken our national defense and thereby report admits that such a limitation is the Mediterranean, together with sn- it is likely to increase-not lessen-the arbitrary. At page 28 of the 1973 report creased Soviet deployment around the dangers of war. are found these words: world, is a facts which cannot be ignored I wish to spell out some of the,reasons The choice of thirty days, in a sense, is or avoided. for my doubts about the constitutionality arbitrary. The United States cannot escape the of S. 440, and then I shall briefly explain fact that it, too, must have the ability to the alternative route which I suggest. i Of course, Congress can set limitations am convinced that my amendment would and procedures with respect to its own policy. forces in of ty of support the e its foreign accomplish the desired rejuvenation of actions, which my substitute amend- act in nThe some author situations of not President to Congress' role in the exercise of shared ment would do. But that is a totally dif- this bill o recognized bo war powers while, at the same time, ferent thing than seeking to fix by statute acan beintenance absolutely essential to avoiding the constitutional pitfalls em- as limitation admitted to be arbitrary the maintenance of peace and to the bodied in S. 440. upon powers of the President which are prevention of war. The report of the Committee on For- derived from the Constitution. If Let S4e40 had be specific. eign Relations with respect to S. 440, The 1972 report, at page 6, declared: S. n had cou the law in 1962, have deployed filed June 14, 1973, includes the follow- The intended effect of Section 5 is to im- ident Kennedy and imposed have ramped Ing statement: pose a prior and unalterable restriction on as he did diat fleet a the d imp of the a quarantine, The essential purpose of the bill, therefore, the emergency use of the armed forces by as time of tCuban mis- to reconfirm and to define with precision the President. site crisis. It will be recalled that at that the constitutional authority of Congress to It is clear, I think, that S. 440 seeks time, there was no armed attack on the United S tates its Arm Forces, eexercise its con undeclaredstitutional nor warswar and twers with to impose: "A prior and unalterable re- any imminent threat thereof. But the a in ct which this authority relates to the constitu- striction" on the President's constitu- of stopping Soviet ships certainly did tional responsibilities of the President as tional powers. raise a risk of "imminent involvement Commander in Chief. In addition, I believe the specification in hostilities." If S. 440 had been in effect, Last year, the committee's ;report in in section 3 of only four situations in President Kennedy's hands would have connection ast y with the gitte bill, S. t which the President can use the Armed been tied. Those who say he could have filed February 1972, -. with 29, the original made this s295 Forces without prior approval is also an gone to Congress and asked for authority meet: arbitrary restriction on his constitution- are unrealistic. By the time Congress The ur ose of the war al powers. How can we be so sure that could have been called back into session P p powers bill, as set there are not other situations, not now to consider such a proposal, the inter- forth in its statement of "purpose and pol- contemplated, when the President could icy," is to fulfill-not alter, amend, or ad- nation ball game would have been over. just-the intent of the framers of the United exercise his constitutional power to em- Similarly, the reinforcement of our States Constitution in order to insure that ploy troops. If there are such other situa- Berlin garrison at various critical times the collective judgment of both the Congress tions, the Congress cannot limit or deny was not a response to armed attack or and the President will be brought to bear in that constitutional power by a simple the imminent threat thereof. But actions decisions involving the introduction of the statute. Armed Forces of the United States in hostil- It cannot be emphasized too strongly taken bn several poseidents with respect sties or in situations where imminent in- to Berlin have exposed our forces to the volvement in hostilities is indicated by cir- that we have before us a bill-not a risk of "imminent involvement"- in hos- cumstances. proposed constitutional amendment. tilities. The earlier report at another Some may believe the policy embodied in President Eisenhower sent troops to point the bill is wise; some may believe it un- Lebanon at a critical point in time. His declared: wise. But the fundamental issue is action was in the interest of peace-not The bill is in no way intended to encroach whether such legislation is consistent war. There are times and situations when upon, alter or detract from the constitutional with the Constitution. power of the President- a requirement of prior approval by,COri- Because S. 440 would be unconstitu- gress would be self-defeating and im- . But despite these praiseworthy decla- tional, and because in any event, it will practical. rations, I am deeply concerned that the not become law over a certain Presiden- The ability of our President to act in Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For CONGRESSIONAL IZECODP758QF000700090010ly 20, 1973 S 14208 the interest of peace should not be placed spect to, the continued use of the Armed Mr. GRIFFIN. No. is import-nt. of f under the shadow of N tainty that would be cd eated by S. 440. made in.. the amendment so thatanY es- casee, certainly h gupinioess not. In any bespeaks ions would opera thinkingdeal S ho ding of aI a President Middle East of 6t i1Fl a Ives- imperil thensaafety of thetArmed Forc st hep administra onn is good ment ll at the se eels at the time of the Six Dad War, cou- My amendment would not tie the should like to reply. Sled with his diplomatic contact with the hands hen it the powPresident in advance. er restore whand ich make more dent. t pass cis not palatable a ato Presides nSoviet Union to to avoid d misbal alculat Rather it seeks sic nt. undehe which Congress Any President I o ld would be found to ose s a prompt and effective anion taken ken effective tnot in the interest war bu't in the m alr contrast tere'st o of peace. His s action -`was not in In n contrast to the pending bill, my it, to try to give himself all the powers n- to. response to an attack upon the United amendment does not attempt to prejudge heIpossi lyy e can hangron that President States or our Armed Forces. But that the circumstances in which our Armed ay remem move did expose our Armed forces to the Forces 6hauld be employed at some time Nixon, wasregard the Cambodian bo can si lie at on - ill risk of "imminent involvement in hos- in the f .iture. tilities" and, therefore, would have been That question is left to the President echoed th said the was n on Ca tr,-hill to rthe educe the prohibited under S. 440. and the Congress of the future to decide when any way not Somehave argued that a Middle East under the circumstances that then pre- President in ysiway That is what said presidency. resolution would confer Presidential-au- vail. I believe that through this ap- powers enhet the the British Empire. thority to take such actions with respect preach wiser decisions can be made than But, President, I believe that m ire. to the Middle East. But it is my under- would ,be the case if we attempt, as ing what re are doing, we are avoiding standing that that resolution applies only S. 440 does, to foresee and anticipate bait for are doing, areas avoiding the if there is "armed aggression from any future events now. the which is equivalent id what Nixon's idea country controlled by interritional com- The approach of my amendment draws British Empire. In short, what we are munism." Obviously, this provision does upon the recent experience of Congress trying to Inns lto bring w are not cover some of the situations that when funds for Cambodia, were cut off. trend do is, the guerrilla long last, g about could arise in the Middle East. It seems to me that if, that experience Congress the the rilla warfare t,in between My point in recalling these examples proved anything it demonstrated that Congress has been us aantly bste is to underscore the fact that S. 440 is Congress has the power to act-but Both such remendnus ragic cost c our not a step toward reducing the chances sometipmes it lacks the will to act. country, before a violent reaction of war. By tying the President's hands Such an attitude, it seems to me, calls country, of re really stivio away acres- in very critical situations, this legislation for legislation-not to restrict the Presi- develop autho as to ty. could actually have the effect of increas- dent=but to approve the procedures dent will tag the likelihood of war-lot peace. under which Congress can act, and par- Mthet r. . JOHNSTON. or from New Mr. York Presi yield? I realize that the bill i6 well inten- ticularly the Senate where filibusters are the Senator yew Mr. tioned. But, unfortunately, it would raise a serious obstacle to prompt action. Mr. JOHNSTON. I yield. i Would the Senator up ambiguities and doubts in situations I shall not press my amendment, Mr. from New York eto me, it ,;elm the bill is to prevent where the President's power to act should president, but I suggest and urge that that the purpose explain be clear and unqualified. the a proach embodied in this amend- the kind pf situation we had in Vie -m of it is unnecessary to a restoration of the clear that S. 440 cannot become law. yet an our troops into bill s pea hostilitiesks. As appropriate congressional role. Mr. President, I withdraw the amend- I recall the situation in Vietnam, our It is not necessary to attempt to limit ment. troops were originally sent there to guod or base. We were there to the Constitutional powers of the Presi- The PRESIDING OFFICER. The tr Air were dent-"to impose a prior unalterable re- amendment is withdrawn. The bill is an that base. They en turn were at striction on emergency use of the Armed open to further amendment. tacked, as perhaps could have been pre- sure by the President' fn order to in- Mr; JAVITS. Mr. President, does the ticked. That, h ps co would seem me sure that the Congress can speedily and Senator from Minnesota wish to speak di trigger the otherrn, section e t law to of the promptly cut off funds for ventures now? which would allow the President, then, which do not have the support of Con- Mr. HUMPHREY. Yes, if someone will to use the troops to repel an attt ck on gress. yield', me time. those troops. All that is necessary-as was demon- The PRESIDING OFFICER. Who would or or would strated when funds for bombing in Cam- yields time? Is not it prevent not not true the that kind this would would bodia were cut off-is for Congress to Mr. MUSKIE. Mr. President, I yield tits which we have had? act 5 minutes to the Senator from Minne- DAVITS. It would prevent f Viet- nom situation because the toddle who posed time limit of 30 days need be im- sota. ' Mr. posed on the President's Constitutional M. HUMPHREY. On the bill? went sthere to defend ituation ecaus that Air who powers. Aside from the fact that such- a Mr. MUSKIE. On the bill. went assuming that those fare limitation would be unconstitutional, the Mt. JAVITS. Mr. President, will the correct-but let assume that, facts t the period could be much too long in some Senator yield? sake of the answer, although I think more nto it s a than although I ethink situations-and too short In others. Mr. HUMPHREY. I yield. sakes of The amendment I have suggested calls M. JAVITS. Let me say that I shall there is Jhad decided I cause for consultation between the President repI to the statement of the distin- ere Senator eside Johnson o remember the decided on--level and the Congress before troops are in- guisied assistant minority leader at a held with the President of volved in armed conflict. And section 3 laterr+ point, and I ask unanimous con- meetings I he think it was either s Manila calls for prompt notification to the Con- sent that my remarks may be printed in Vietnam, , thich was decided that gress if and when the President corn- the RECORD at this point. Hawaii, awawaiiait, in n which ich it would decided mits or substantially enlarges U.S. troops M . HUMPHREY. Mr. President, I the Vietnamese rforc t duubs nd U.S. abroad. I believe that taking action to think it would be appropriate that the essentially Bold fight the war. support the concept of consultation in Senator from New York reply now, and forces But even if the Senator. is right--and time would be a wholesome and appro- I shall await my time. priate step-a step that would implement Mr. JAVITS. Mr. President, if I may it is a hypothetical question-if we sent the intentions of the Founding Fathers, have 5 minutes, I shall not take very troops into hostilities, and then a were es in Vthen tells act that would enable Congress to take ac- long. hostilities immediately in Vietnam, et apply. C thisy ct tion on the basis of up-to-date infor- Mr. President, I reply, first, because President, even el there were aa actual mation. the Merits demand a reply, and second, shooting that day, there deny ar th tual My amendment then establishes an because of my respect for the Senator was imminent danger of hthat cstili ere expedited procedure for Congress to con- from Michigan (Mr. GRIFF'IN), who, if according to this, would apply. exec znory serves me correctly, was one of which, the ac the Prpd e cosponsors of our -bill. So it is an a priori situation--to wit, sider of exercise its power ower of of the t- ude urse wi vnth re- -th the Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005~R6/A0fCJ~75AWRJp000700090010-9 July "20,-1973 CONGRESSI ll~~ troops were there at all, whether to guard an Air Force base, which made this applicable and not the exemption contained in the section regarding Pres- idential powers. Mr. JOHNSTON. Then the term "in- troducing hostilities" means introducing troops into the country if hostilities are taking place? Mr. JAVITS. That is exactly right. Mr. JOHNSTON. And where they are not employed initially for hostilities? Mr. JAVITS. That is precisely right. Iam obliged to the Senator for sharp- ening that point. Mr. President, to continue, I should like to deal with the various items the Sen- ator from Michigan (Mr. GRIFFIN) has in his amendment which he has now withdrawn, because it gives us the op- portunity to show precisely how this applies. I said a minute ago that no one will get off scot-free. We are confirming the President in constitutional authority, which is something that has never hap- pened in the history of this country. That is good for him. We are also con- firming ourselves in our authority. It is not one-sided at all. I hope that the President, who has been rather quick about vetoes, will think that over. He may not get another chance, nor may any other President. We may have a con- stitutional crisis, if the country gets sick and tired of a "President's war," even as Senator Goldwater says, by constitutional amendment. We have passed that before. We may again. We may have a Presi- dency which is truly emasculated and I do not want to see that, either. The PRESIDING OFFICER (Mr. HELMS). The time of the Senator from New York has expired. Mr. MUSKIE. Mr. President, I yield the Senator from New York as much time as he requires. The PRESIDING OFFICER. The Sen- ator from New York may proceed. Mr. JAVITS. Mr. President, that is the framework, because this is very impor- tant. Let us take the various instances. First, deployment regarding the Cuban missile crisis. The fact is that missiles were stationed in Cuba by the Soviet Union, essentially, and that, therefore, the President who would propose to stop their ships at sea would know he was in imminent danger of hostilities. So this bill would apply. And why should it not? In fact, the Soviet ships were not stopped by us. They stopped themselves. It is important to note that McGeorge Bundy, who is the closest living person to Presi- dent Kennedy respecting this matter, has testified that the War Powers Act would not have hamstrung President Kennedy's successful diplomatic moves to resolve the Cuba missile crisis. Now had the President come to Con- gress and said, "I need authority to stop those ships," we would have stopped those ships. That was risky business for hundred of millions of people around the world, with nuclear war in the offing; to leave it to one man in the White House-one man-to decide yea or nay. Fortunately we got out of it through diplomacy. Mr. GRIFFIN. Mr. President, will the Senator from New York yield? Mr. JAVITS. I yield. Mr. GRIFFIN. The Senator, I am glad, does concede that the effect of the bill would be to have made it impossible for President Kennedy to have acted in the Cuban missile crisis without getting prior approval of Congress. Is not the Senator aware that Con- gress was not in session at that time? Mr. JAVITS. This Senator is very well aware of that. Also, that Congress can be called into session in 10 hours. In,addi- tion, if I may remind my colleague from Michigan of some history, that crisis was brewing for several weeks. I was on television about it, as were many others, before the President made the decision as to what he would do, that is, that he would stop the Russian ships. We even had a resolution on the books given a lot of authority to the President. He had lots of time in which to deal with Congress. I do not want to be tied to this, but cer- tainly he had a time lag. If he did not have a time lag and the danger was that imminent, he might-I repeat, he might have-in good faith, invoked that provi- sion of this bill which said that if U.S. territory was in imminent danger of at- tack, that is covered by this bill, too. I would hope that the President would not do that, but, nonetheless, he perhaps could have, if it came to that. Mr. GRIFFIN. I am interested in hav- ing this debate fully reflect the various points of view, so let me say that, as I. recall it, President Kennedy made that decision rather late, after it was ascer- tained, I think by aerial observation, that the missiles were actually on the ships. Certainly we would not criticize him for not making the decision earlier. Once he made that decision, and the ships were on their way, it was too late to call back Congress or to get Congress to consider and pass some kind of resolu- tion of approval before the missiles would have been in Cuba. Now, to say that because the missiles were in Cuba would have authorized us, under the resolution, is to say that mis- siles anywhere in the world, or ICBM's for that matter, which are Russian based and which can reach the United States, would allow the same thing. I do not think that the Senator from New York would really mean that. So I point out that I think the effect of the bill would have been impractical and unrealistic in the Cuban missile crisis. President Ken- nedy's hands would have been tied and he would not have been able to act in the interests of peace, as he did. Mr. JAVITS. I could not disagree more with the Senator from Michigan. Mr. MUSKIE. Mr. President, will the Senator from New York yield for a moment? Mr. JAVITS. I yield. Mr. MUSKIE. The Senator, of course, is the author of the bill and the careful architect of its provisions. He under- stands what he intended by this legisla- tion better than anyone else. But in response to the Senator from Michigan, let me make the point first-the his- torical point-that the President at that S 14209 point did assemble the congressional leaders- Mr. JAVITS. Of course he did. Mr. MUSKIE. At the time he con- sidered the decision. Second, the declara- tion of war at the time of Pearl Harbor was made within 2 days of the attack on Pearl Harbor. So Congress is capable of acting quickly. But then, let me em- phasize a point the Senator from New York made a moment ago. The language of subsection (1) of section 3, which con- firms the emergency authority of the Commander in Chief. To repel an armed attack upon the United States, its territories and possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to fore- stall the direct and imminent threat of such an attack; I remind both Senators that the im- plication from the pictures taken, by our aircraft was to the effect that the instal- lation of the missiles posed an imminent threat to the United States. As the Senator from New York has said, I would hope that, given time, a President would still consult Congress. But one certainly could not challenge his good faith if he were to use that lan- guage in, those circumstances to invoke the emergency powers. Mr. JAVITS. The Senator has an- swered the question exactly as I would, and I wish to add one other point. No one denies for a minute that you still depend to a great extent upon the Presidency. As to all the loose talk about credibility, and so forth, we all can ap- preciate and understand that, but you cannot run a country that way. You cannot operate; you cannot pass laws on that theory. We must assume that, having written it out, the President will obey the law In reasonable good faith. In any case, we will have something to repair to. I believe that the answer to the Cuban missile crisis is that, given any time at all, the President would have seen his clear duty under this bill to come to us. - What gives him the prescience and patriotism that is denied to us? I do not understand it. He is human and mortal., as we are. If you had any doubt about it yesterday, you should not have it today. What, is the basis for the assumption that he is infallible and cannot make a mistake and that only we are capable of mistakes? So much for the Cuban missile crisis. As to the relief of the Berlin garrison, there was no imminent threat of war. The Senator, himself, said that. We just defeated an amendment by the Senator from Arkansas (Mr. FULBRIGHT) which would have inhibited the deployment of our forces. So the President is perfectly free to deploy the forces of the United States. That covers the Berlin garrison problem. As to the situation of the troops to Lebanon, there, again, the President should have come to us; and, in fact, he did. He got a resolution which in the terms of that time was valid: if they are attacked by Communist forces or Com- munist-backed forces. That was his cover for asking for the resolution, on the ground that the revolt Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010-9 S 14210 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20,? 1:0 73 In Lebanon was fomented by the So- viet Union or forces acting at the dic= tates of their international, Communist apparatus. But precisely this law would apply and should apply in that kind of situation. That could have led to an enormous conflagration in the Middle East exactly like that in Vietnam. We are mighty lucky that we got out of it with a whole skin. Certainly, we want this to apply to that kind of situation, and it should. Finally, as to the deployment of the 6th Fleet in the 6-day war, the answer is precisely the same as that respecting the deployment in respect of the Berlin garrison. The President moved our ships forward in a situation which represented the normal deployment for naval forces of the United States. There was no im- minent danger. Nobody was threatening to attack. They were not involved in hostilities. And the President had complete authority to do that. Had he moved them within the war zone, with a design of taking some part or relieving one or. the other of the parties, then he would be subject to this law, and I maintain that he should be. That is why we are doing it. I understand the views of the Senator from Michigan, and these are appropri- ate questions to raise and to be debated. But I really feel that the plan of the bill meets the appropriate exigencies. Where we ought to have power, we are given power; and where the President ought to have power, he is given power. I thought these views should be juxta- posed to those of the Senator from Mich- igan, and I thank the Senator from Maine. Mr. MUSKIE. Mr. President, I yield 5 minutes to the distinguished Senator from Minnesota. Mr. HUMPHREY. Mr. President, ear- lier today I made a statement and placed in the RECORD a statement in full sup- port of this very important, historic piece of legislation. I particularly wish to compliment the Senator from New York for his initiative in this area of constitutional law-that is what it is-and the distinguished Senator from Maine for managing this bill on the floor of the Senate and for his intimate knowledge of its details, The report of June 14, 1973, which has been published on the War Powers Act, as it is known, is possibly one of the most precise and informative documents relat- ing to the relationships between the President and Congress, as pertains to warmaking powers and the authority that each branch of Government has, that has ever been published. We are in- debted to the Senate Foreign Relations Committee, the sponsors of this bill, and the staff of that committee for a truly remarkable report. The report contains these words: It is legislation essential to our security and well being. It is legislation inthe inter- est of the President as well as the Con- gress. . We live in an age of undeclared war, which has meant Presidential war. Pro- longed engagement In undeclared, Presiden- tial war has created a most dangerous im- balance in our Constitutional system of checks and balances.... [The bills is rooted In the words and the spiritof the Constitu- tion. It Loses the clause of Article I, Section 8 to restore the balance which has been upset by the ! historical disenthronement of that power over war which the framers of the Con- stitution regarded as the keystone of the whole Article of Congressional power-the exclusive authority of Congress to "declare war"; the power to change the nation from a state of peace to a state of war. Those are the words of the distin- guishe Senator from New York, and I think they summarize very properly and succinctly what this bill is all about. I believe that this debate has been truly a, course of instruction in the very heart Uf constitutional government, the relationships between the President and Congress. On'the issue of life or death, peace or war, nothing could be more f undamental. Whether this bill is what it ought to be or not, it is a beginning. It represents an intelligent, instructive effort on the part of, Congress to work out the rela- tionships between the Presidency and Congress on the entire subject of national security, particularly as it relates to the use of the Armed Forces of the United States,; and under, what terms and conditions. So I would hope, as the Senator from New York has said, that the President would not be too hasty in proclaiming that it will be vetoed. I would urge upon the President that he study the back- ground of this legislation as the testi- mony before the Foreign Relations Com- mittee was given. I would urge upon the President and his advisers that they read the report on this bill, as filed by the Committee on Foreign Relations. I urge upon the President that we learn the lessons of the second half of the 20th century-namely, that power be- gets power, that action begets action, and that Presidential power exercised Is building precedent upon precedent, and there comes a time when you have to take a look once again and attempt to restore 'the balance upon which this con- stitutional system is predicated. SUB5IISSION OF SENATE RESOLUTION 149 Mr. HUMPHREY. Mr. President, one of the best ways to prevent a war is to have communication between the re- spective nation-states. I am today sub- mitting a resolution which will place the Senate' on record as favoring a return to normal relations between the United States '' and an old historic friend- namely Sweden-and the means to do this w~uld be the normal exchange of ambassadors. Since August 1972, almost a full year, we have had no diplomatic relationship with Sweden, a friendly nation, a na- tion of democratic purpose and demo- cratic Institutions, a nation of people who have a great and fierce sense of individuality, and the love of freedom and liiperty. Yet .the President of the United; States has seen fit to break off diplom tic relations and inform the Swedish Government that an ambassa- dor froth Sweden would not be welcome here and, of course, not to send an American ambassador there. Why? Be- cause the present Prime Minister of Sweden made some derogatory remarks about our country in 1972 when the bombing was taking place over Vietx.am. But he did not say anything that had not been said by Senators; Representa- tives, or distinguished citizens of this country who disagreed with the Presi- dent's action. What the Swedish Prime Minister said was not nearly what had been said from Peking or Moscow. They had conducted a diatribe against this country for years. Yet we reach out to Moscow and Peking and we call them long lost brothers. It is the new diplomacy. I think countries areentitled to express their points of view, but if the reason we broke relations with Sweden is because we did not like what their Prime Mini ster said in 1972, I want to know what we are doing in our new detente and spirit of understanding with the Peoples Republic of China and the Soviet Union. The sit- uation does not make sense. All I am doing here is to ask the Pres- ident of the United States to restore the relations with the country that :.s a bridge between the North Atlantic ]?act on the one hand and the Soviet Unio:a on the other hand, a country that is a friendly country, which has its sons and daughters by the millions in this country, a country that has elections, a country that believes in civil liberty. I am as:ing that the President of the United States, "get with it" and send an ambassador there and say to the Prime Minister of Sweden that we are prepared to act like mature people; that we are done with this infantile petulance, and it is tima we cut it out. We do not have an ambassado:? in Moscow. It might not be a bad idea to have one there. I urge on the President of the United States that in the nary. e of diplomacy for peace, for which I com- mend him, and repeatedly praise I.-run, that he take the steps now to heal some of these wounds in the case of Sweden and because of the importance of rela- tionship with the Soviet Union, that an ambassador be sent there. Mr. President, this is one of the ways to preserve peace and this fits within the confines of this debate. Mr. President, the resolution would place the Senate on record as favoring t return to normal relations between the United States and Sweden. The means. to do this would be a normal ex- change of ambassadors. At present, there is no American am- bassador in Stockholm. Our Ambassador left his post in August of 1972. The ad- ministration has not nominated another ambassador for this post, leaving it va- cant for almost a year. The Swedish ambassador left Wash- ington in January 1973. I understand that the administration has made it known to the Swedish Government that it will not welcome his successor. The gentleman who was planning to become the Swedish ambassador to Washington has been given another post by his gov- ernment. Mr. President, what appears to be a childish rift between two nations has serious implications for U.S. foreign policy. It is a matter of great concern to me Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved' For Release 2005/06/06 ECO P75 000700090010-9 S 14211 July 20, 1973 CONGRESSIONAL - and others who feel that the United Swedish descent-must realize how un- expense of the continuance of a tradition States has absolutely no right to penalize fair and untenable our position is. in our governmental system, a tradition a nation in this fashion, because its na- It is my hope that the Senate Resolu- which has allowed the President free- tional leadership expresses views which tion I introduce today will bring to the dom of movement in the conduct of may not be in accord with our own. attention of the President and the State diplomacy. The Nixon administration has chosen Department the need to nominate with Mr. President, I do not think a better to attempt to embarrass the Swedish all due haste an ambassador to Sweden. case could be stated against the adop- Government by not sending an ambassa- The time has come to normalize our tion of the war powers bill than was dor to Stockholm. We have also rebuffed relations with Sweden and not let the stated by Mr. Justice Sutherland in the any attempts made by the Swedes to past interfere with the necessary ex- case of United States v. Curtiss-Wright normalize relations. change of views so badly needed for fu- Export Corporation, 299 U.S. 304, 1936. The behavior of the Nixon administra- ture good relations. Here is what he said: tion concerning this matter is in direct Mr. TOWER. Mr. President, I call up It will contribute to the elucidation of the violation with a Senate resolution passed my amendment No. 386 and ask that it question we first consider fthdifferences of of foreign the federal in the powers external greein- in September 1969, specifying that dip- be stated. It is my understanding that between the lomatic relations do not depend upon or the amendment is out of order, but I was and those in respect of domestic or internal imply approval views of the governments under the impression that the point of affairs. That there was differences between concerned. order could not be raised until after the them, and that these differences are funda- This principle was the guiding force time on the amendment had expired or mental, may not be doubted. in the 1930's when Franklin Roosevelt had been yielded back. The two classes of powers are different, that the their recognized the Soviet Union. And this Mr. MUSKIE. I am happy to yield time both in he f e origin certainly was in evidence to the Senator. nature. e. The e broad can axe en nh powers ex- eral enumerated it the ranged Mr. Nixon and Mr. Kissinger ar- The PRESIDING OFFICER. The tgovern hose eat can ranged for a mutual exchange of diplo- Chair is advised that the amendment cept Constitution, and such implied powers as mats with the People's Republic of is out of order. are necessary and proper to carry into effect China. Mr. TOWER. I withdraw the amend- the enumerated powers, is categorically true It is interesting that we choose to pen- ment for the moment. only in respect of our internal affairs.... The alize the Swedish Government for ex- Mr. MUSKIE. I am happy to yield to powers to declare and wage war, to conclude dip- peace, to make treaties, to maintain dip- menet in tin the vie warwar in n Indochina critical hina our and do involve- noot the Mr. . TOWER. Will the Senator yield to lomatic relations with other sovereignties, if ment had never been mentioned in the Con- bat an eyelash when far more critical me for 15 minutes? t y had, wordhave vested mentioned the federal- and more numerous statements are made Mr. MUSKIE. I yield 15 minutes to the government as necessary concomitants of by the Soviet Union and the Peoples Re- Senator from Texas on the bill. nationality. Neither the Constitution nor the public of China. Of course, I do not be- The PRESIDING OFFICER. The Sen- laws passed in pursuance of it have any force liege we should diplomatically penalize ator from Texas is recognized. in foreign territory unless in respect of our any country for statements it made Mr. TOWER. Mr. President, the own citizens (see American Banana Co. v. which faithfully reflect the views of large amendment in question is out of order Unite d Fruit the nation in3such 5territory numbers of its people. . because it is an amendment to the title must operations of the by ioeaties, international We cannot avoid the fact that our of the bill and, therefore, cannot be called understandings and compacts, and the prin- ciples in Indochina have deeply dis- up until after the bill is passed. ciples of international law... . turbed large numbers of Scandinavians I will read the amendment. It states: Not only, as we have shown,.as the federal and Europeans. When Prime Minister Amend the title so as to read: "A bill to power over external affairs in origin and es- Palme was critical of the American make rules governing the use of the Armed sential character different from that over Forces of the United States in the absence of internal affairs, but participation in the ex- bombing of Hanoi in December 1972, his a declaration of war by the Congress, and ercise of the power is significantly limited. In remarks were not aimed personally at thereby reduce the United States of America this vast external realm, with its important, the President or any other Americans. to the status of a second rate power." complicated, delicate and manifold problems, While they may have been exaggerated I know on the face of it that it ap- the President alone has the power to speak and I personally take exception to them. pears to be a frivolous and facetious or listen as a representative of the nation. However, the essence of his frustration, amendment, but I offer it not in levity He makes treaties with the advice and con- outrage, and disagreement with our poll- sent of the Senate; but he alone negotiates. ties was shared by many Americans. because to me it really says what we are Into the field of negotiation the Senate can- doing here, because it underscores what not intrude; and Congress itself is powerless Mr. Paime, like all Americans, has a I conceive to be the impact of this legis- to invade it. As Marshall said in his great right to express his views without having lation if it is passed and if it is signed argument of March 7, 1800, in the House of to experience retribution of any sort. by the President or his veto is overridden. Representatives "The President is the sole I have no doubt that Swedish-Ameri- Mr. President, what is proposed in S. organ of the nation in its external relations, can relations strengthened by bonds of and its sole representative with foreign na- 440 is to reduce the United States to a bons:' Annals, 6th Cong., col. 613. friendship and kinship will long outlive state of impotence in this negotiation the present infantile petulance. with the large superpowers of this world That was a man speaking within the However, the principle involved here is because it imposes a paralysis of military same time frame that the Constitution how the United States relates to the action on the President of the United was conceived, framed, and adopted. If smaller democratic nations of the world. States. Anyone knows that to negotiate we want to talk about the intent of the Why have we paid so little attention successfully with a superpower, the framers, let us repair to some men who to the ugly tirades of great socialist Soviet Union, you must not only be in were present in that era and who were powers and react so unfairly to criticism possession of great military power, but commenting on the Constitution at that of our policies by a small democracy? also you must have the flexibility and time. Why do we seek to punish diplo- the willingness to use it, if necessary. Justice Sutherland further said: matically and embarrass a country which What this bill does is to proscribe the It is quite apparent that if, in the main- has been our friend for so many years? Chief Executive in this country in a way tenance of our international relations, em- barrassment-perhaps state serious embarrass- During the month of April in a letter, ment-is to be avoided and success for our I called upon the President to give this country in the world is proscribed. They aims achieved, congressional legislation matter his personal attention and rem- must be laughing themselves silly in the which is to be made effective through nego- edy this deplorable situation. There has Kremlin over our consideration of this tiation and inquiry within the international been no response from the White House legislation. field must often accord to the President a or from the Department of State. Much has been made of the research degree of discretion and freedom from sta- Apparently, the exchange of views that and constitutional prerogatives of the tutory restriction which would not be ad- we so cherish with the People's Republic Presidency of the United States. It seems miscible were domestic affairs alone in- volved.. . . [B]oth upon principle and in of China and the Soviet Union is not de- to me we are trying to do it not only at accordance with precedent, we conclude sired in the case of Sweden. the expense of the constitutional prerog- there is sufficient warrant for the broad dis- All Americans-and especially those of atives of the President, but also at the cretion vested in the President to determine ,Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 . Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14212 CONGRESSIONAL RECORD- SENATE July 20, whether the enforcement of the statute will ity to act to these four specific categories. have a beneficial effect upon ire re-estab- Congress would tie a future President's lishment of peace in the affect countries. hand when some unforeseen crisis arose. The opinion goes on to mutters that It shoul also be pointed out that some are not necessarily relevant to this de- constitu ional law experts maintain that bate. the independent authority of the Presi- Mr. President, it occurs to me that dent under the constitution is substan- what we are doing here flies in the teeth tially broader than the four categories of tradition custom, and gage. In a specified in the bill. Therefore, to limit horse-and-buggy era, this kind of leg- the President's power to these categories islation conceivably could have had its may raise the point of constitutional- place, but not today, not at aatime when ity we have the Middle East crisis, the Leb- In addition, the question has been ?inese crisis, the Dominican crisis, the raised as to whether this bill would cover Cuban crisis. This is no time for us to such emergency situations as the action fly into the teeth of tradition and con- taken by President Truman in Korea. In stitutional uses. the absence of a declaration of war, the I have no thought that this bill will act would prohibit collective action be rejected, but I think that those of us against a sudden armed attack on a na- who can see the inherent oil in this tion to which we have no formal na- measure would have been remiss had we tional commitments. Thus, If President not talked about it. Should this bill be- Truman had been operating under the come law, the United States from this proposed act a prior declaration of war point will be disregarded as a great would have been required before en- power with influence over the course of gaging our forces in the Korean war. world events. This bill also raises the question of The PRESIDING OFFICER. Who whether we could go to the aid of Israel yields time? In case ok an attack on that country since Mr. MUSKIE. Mr. President, I yield we have no defense treaty with Israel. the Senator from South Carolina- 10 The potential for great power inter- minutes. vention in the Middle East is clearly ii- Mr. THURMOND. Mr. President, I rise lustrated by the burgeoning Soviet naval in opposition to the pending bill, S. 440, presences in the Mediterranean, Persian on the grounds that it is unnecessarily Gulf, and Indian ocean and the presence restrictive on. the President and may of Soviet military personnel and sophis- well lead to new problems rather than ticated military equipment in several correct present problems. Mideast countries. Under this bill the President of the This bill specifically limits the use of United States could take emergency U.S. forces to situations where the United military action-in the absence of a States or U.S. forces are attacked or di- congressional declaration of war-in rectly and imminently threatened with First. To repel an attack on the United example, the United States itself was not States, or forestall the "direct and im- directly threatened with attack nor was minent threat of such attack!'; there animmediate threat to American Second. To repel or forestall an attack forces. However, there was an open and on U.S. Armed Forces stationed outside imminent threat made by Russia against the United States; Israel. President Johnson's prompt re- Third. To protect U.S. citizens and na- sponse by moving the 6th Fleet into the tions in danger in foreign countries;- or danger area in order to forestall Rus- Fourth. Pursuant to some specific sian pressure on Israel would have been statutory authorization short of declara- prohibited under S. 440 because no threat tion of war. - had been made against U.S. forces. The bill further provides that when Other ''situations not covered in the the President does take emergency - ac- four points are sudden attacks on areas tion, such action must cease within 30 which the Nation is committed by treaty days unless Congress authorizes con- to defend-but not by specific authoriz- tinuation of use of the Armed Forces. ing legislation-regional peacekeeping Mr. President, in my view this mews- operations, and humanitarian interven- ure fails to meet the objectives of re- tions. storing to Congress its power to declare Mr. President, the 30-day limitation on war without at the same time tying the Presidential emergency action is another President's hand in emergencies. S. 440 area viewed as excessively restrictive of is simply too restrictive of the President's the President's Power. There are those power to act in emergencies. For in- who feel that under the Constitution the stance, the bill does not contain any President, as Commander in Chief, has specific provision for the President to the authority to defend the territory of use his own judgment and dis+iretion to the United States with all resources at his determine what is an "emergency" suf- command for whatever period is re- ficient to justify action on which he can quired. Thus a statute setting a time base a deployment of our Armed Forces limit on the President's authority to act without congressional assent. to an exact term, as 30 days, may raise The legislation provides only four situ- grave constitutional questions. ations in which an immediate response Several other adverse affects may flow is allowed, and it may well be questioned from the 30-day provision under which whether it is possible to define and de- the President's emergency action would scribe in advance all possible potential be terminated unless continued by Con- emergency situations to which the Presi- gress. dent might be called on to respond. It could force Congress into a prema- By restricting the President's author- ture decision or end Presidential action before a full assessment eduld he made of the situation. It might increase pres- sure to escalate hostilities in order to achieve the objective within this limbed time frame. It may precipitate a prema- ture withdrawal of troops and cause more dislocations or possibly endanger their lives. Finally, it is possible that if for some reason Congress were not able to act within 30 days, the President would be obliged to do whatever he thought beast, again raising the constitutional issue at a time of crisis when the Nation could least afford it. Mr. President, before closing I would like to point out that the Congress has always had the power to shut off fund- ing for any military operation the Co:m- mar_der-in-Chief might undertake. In forming our government, Congress was given the authority to declare war and, of course, Congress holds the pu::?se strings to finance the cost of any war. Therefore, the Congress has consider- able authority in this- area and I see no reason for new legislation which would limit the President's ability, to meet emergency situations. For this reason and the others men- tioned earlier in these remarks I intend to oppose this bill. If the Congress does pass this bill, :l hope the President will see fit to veto it. Mr. EAGLETON. Mr, President, I send an amendment to the desk. The PRESIDING OFFICER. The elf rk will report the amendment, The assistant legislative clerk read as- follows: -- - On page 9, line 5, beginning with "but", strike out through "Act" the first time it appears in line 7. Mr. EAGLETON. Mr. President, in brief my amendment would strike almost all of the sentence describing the effec?? tive date of S. 440 in section 9, Section 9, when originally added to the bill was a viable section, because-then we were op- erating in the context of a continuing war being experienced in Southeast As:.a. However, since the introduction of Cie bill this year and since the hearings on it in the Senate Committee on Foreign Relations and finally its consideration. now on the floor of the Senate, we have had intervening events, which, in my opinion, make the continuation of sec- tion 9 an anachronism. Among these events has been the withdrawal of troo;as from Southeast Asia, and more recently the so-called Cambodian compromise by which August 15 was set as the final date for the cessation of all American milita: y participation it Southeast Asia. The purpose of my amendment is sim- ply to strike out those anachronistic parts which are no longer effective ar, d to assure that the provisions of S. 4c:0 go into effect immediately on the date of enactment. - In addition, this would incorporate in S. 440 identical language to that ap- pearing in the House bill on war power;, The PRESIDING OFFICER. Who yields time? Mr. MUSKIE. Mr. President, I yield myself such time as I may require. I shall be very brief. The amendment has been.under con- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 ? Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 CONGRESSIONAL RECORD -SENATE sideration by the Senator from New York (Mr. JAVIxs), the Senator from Mississippi (Mr. STENNIS), and me. De- velopments since the bill was approved by the committee do create something of a problem. The provision now in the bill has ap- parently been covered by the so-called Cambodian compromise adopted a cou- ple of weeks ago. Still, we have not ar- rived at the date of August 15. But in anticipation of the termination of all U.S. military activities in Indochina by that date, the Senator from Mississippi (Mr. STENNIS), the Senator from New York (Mr. JAVITS), and I are willing to accept the amendment. Mr. President, at this time I yield to the Senator from New York to discuss the matter more fully with the Sena- tor from Missouri. Mr. JAVITS. Mr. President, the amendment of the Senator from Mis- souri has given me very great concern, primarily because we must all remember that this is a bill, as I said when we opened the debate, that has gone through an unbelievable examination. We have always felt and have con- sistently made the point that there is no retroactive intent in connection with the bill. We would not provide for retroac- tivity if we adopted the amendment. The bill would say that it would actually take effect on the date of its enactment. Nevertheless, we thought that there had to be no argument about the hostilities in Vietnam. The Senator from Missis- sippi (Mr. STENNIS) was very strongly of that view. We felt the same way when the bill went through the committee about the hostilities in Cambodia. Again, notwith- sta{iding the deep objections we had- which goes for the Senator from Mis- souri and myself and a great majority of the committee with respect to Cam- bodia-we still did not wish to bring this bill into that kind of retroactivity. We do now face a different situation, as has properly. been argued. We have adopted the so-called continuing resolu- tion with a cutoff date, and we have a right to assume that will represent an end of everything related to the war in Indochina. So, one could say, as the Sen- ator from Missouri has undoubtedly made clear-although I was not present in the Chamber at that particular in- stance-that this retroactivity clause he seeks to strike is moot. On the other hand, I am sure that it will take some months for the bill to become law. And, without any question, no one ever knows what may occur. Also there are rumors, and Washing- ton is always full of them, that the Presi- dent may seek an extension of the Au- gust 15 date. I rather sense that is another reason that the Senator from Missouri is anx- ious for his amendment, to serve notice that this will not be very kindly received around here. I think that I would be very much in accord with that notice itself. I would like, before I agree, to make one further appeal to the Senator from Missouri. We will take the amendment if he wants us to take it. However, I would like to lay one fact before him. The House has stricken the provision, and if we strike it out of here, we will have nothing to confer about on that matter. In view of the fact that the House struck the section out of House Joint Resolution 542 on the floor, we would have nothing to confer about and noth- ing to do in conference with this particu- lar question if in the next 30 days or 60 days some new situation should develop. That is the disadvantage. However, I cannot use that disadvantage as a de- cisive argument against the amendment. I can only say to the Senator from Missouri that `the Senator from Missis- sippi (Mr. STENNIS) most reluctantly and I most reluctantly and the Senator from Maine (Mr. MusKIE) most ' reluctantly will .take the amendment, but we would still commend to his consideration the fact that it would be strictly a matter in conference and that we should leave ourselves room for maneuvering in so delicate a situation. If the Senator feels absolutely decided on this, we will agree to accept the amendment. Mr. EAGLETON. Mr. President, with- out any degree of reluctance I say to the Senator from New York that it is anach- ronistic. It stands for nothing in the context of today's situation. I would like to go forward with the amendment. Mr. JAVITS. Mr. President, if the Sen- ator will yield for another question, it is our understanding that the only reason for striking this clause is the fact that precisely the question sought to be dealt with by this clause has been dealt with by the so-called Cambodian ? compromise in the continuing resolution, the date being August 15. Mr. EAGLETON. The Senator is cor- rect. Mr. JAVITS. Mr. President, under those circumstances, I have no objection to the amendment. The PRESIDING OFFICER. Who yields time? Mr. MUSKIE. Mr. President, I yield back the remainder of my time. Mr. EAGLETON. Mr. President, I yield back the remainder of my time. The PRESIDING OFFICER. All time has been yielded back. The question is on agreeing to the amendment of the Senator from Missouri. The amendment was agreed to. The PRESIDING OFFICER. The bill is open to further amendment. Mr. JAVITS. Mr. President, before we go to third reading, may I have 1 minute. I do not know of other amendments, S 14213 The clerk will call the roll. The second assistant legislative clerk proceeded to call the roll. Mr. JAVITS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. JAVITS. Mr. President, will the Senator from Maine yield 5 minutes to the Senator from New Mexico? Mr. MUSKIE. Yes, I yield 5 minutes to the Senator from New Mexico. Then I shall yield 2 minutes to the Senator from Florida. Mr. DOMENICI. Mr. President, I do not believe I shall take the full 5 min- utes. As Senators know, I came off a .campaign recently. I was in a campaign at the height of the Vietnamese war, and during my campaign for this office last fall, I told my fellow New Mexicans that I pledged my support for those measures which would insure an end to this country's involvement in Vietnam. I have, I believe, lived up to that com- mitment. I also said that I supported the so-called Stennis War Powers Act. I am doing that today. The Vietnam war divided oiir coun- try. Families were divided; friendships were strained over differences in opinion. The war was not an "American war" be- cause in a real way Congress had not declared it such as they did at the time of the First and Second World Wars. Mr. President, I feel that this measure, despite its -imperfections, comes closest to supporting the philosophy shared by this country's founders. It was their feel- ing that the decision to declare war was so awesome that the President needed the advice of the people's representatives. They learned this lesson studying the causes and effects of "older" Govern- ment's past decisions. I agree with their philosophy. The judgment and responsibility for the de- cision to wage war have to be shared by the people through their elected repre- sentatives. We have again learned that lesson by our involvement in Vietnam. God forbid that we should ever have an- other war or aggression, but if ever such should occur, it should not be "Kennedy's war" or "Johnson's war" or "Nixon's war" but rather an "American involve- ment." We have learned the hard way that when the American people through their elected Representatives do not share in a decision to go to war, they do not bring to it their full support and sense except one that might possibly be offered. o personal obligation.. The spirit of I beg the de ut mi 't 1 d b patriotism is absent'. The principle nori p y y ea er- e- cause we want to be very understanding about this bill-to advise me on the sub- j ect. The Senator from Colorado (Mr. DOMINICK) gave us notice that he was going to offer an amendment, No. 375, and we are about to shut off the consid- eration of any further amendments. So, under those circumstances, I sug- gest the absence of a quorum and ask unanimous consent that the time not be charged to either side. The PRESIDING OFFICER. Without objection, it is so ordered established by the war powers bill is that this country should not be committed to war without the sanction of the Ameri- can people through their elected Repre- sentation. This bill is constitutionally sound. It would leave the President ample room for emergency military action should the country's security be threatened. I would not support a limiting bill in that regard. The emergency provisions incor- porated in the measure permit the Pres- ident to.take a wide variety of actions in defense of the Nation or its citizens and forces stationed abroad. Thirty days Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14214 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 - CONGRESSIONAL RECORD - SENATE July 20, 1973 , seem to be sufficient time for Congress If war should ever come again-God and their elected" Representatives in the to decide any Presidential actin on its forbid that it should-at least we will go Congress. merits-to decide if the action. was nec- -Into it k owing that it will have been a There are those who fear that war essary and if it should be continued. decision at is in the national interests powers legislation might hamper the In addition, this measure would insure of the country, that there has been a President's ability to respond quickly in that the American people could come to- national debate, and that there is a case of an emergency. Others have a-- gether in debate to decide if they should chance tq; be heard, under the republican gued that the bill gives powers to the fully commit themselves to disengage form of government that has been set up. President that he does not now have. I our military forces for any activity they For these reasons, I look forward to have given careful thought to both argu- disagree with. This principle also seems casting, niy vote in favor of the bill, and meats and am convinced that the pre>- paramount in the Constitution and I look forward with great hope that this ent bill strikes the proper balance ' n necessary for a democracy. great bill will become law this year. giving the President enough flexibility 1o I have also been most concerned that Mr. J4VITS. Mr. President, I have the bill would permit the President wide been advised by the deputy minority latitude for foreign policy actions. I do leader that the amendment I had in not see any curtailment in that area in- mind will not be offered. corporated in this legislation. The PRESIDING OFFICER. If there The act provides no panacea, but I be no further amendment to be proposed, believe that it can insure that the collec- the question is on the engrossment and tive wisdom of the President and the third reading of the bill. Congress will be brought to bear, as the The bill (S. 440) was ordered to be Constitution provides, when the all- engrosse for a third reading and was important questions of war and peace read the third time. are considered. Mr. ROTH. Mr. President, I take this Justice Joseph Story in 1933 once occasion to reaffirm my support for S. remarked- 440, the War Powers Act of 1973. I have It should be difficult in a republic to de- been a s rong supporter of war powers clare war; but not to make peace. legislation since my first year in the I believe this measure will leave the Senate in 1917 when I cosponsored a President sufficient flexibility to nego- predecessor of the present bill. I am tiate, to freely participate in foreign pleased that the essential features of that affairs. At the same time, Congress will version, Which owed so much to the ini- once again assume their proper role of tiative and wisdom of Senator STENNIS, advise and consent. This idea represents have beeii incorporated in S. 440, I also democracy. This idea is the premise i want to commend the senior Senator support. from New York and the junior Senator Mr. JAVITS. Mr. President, i want to from Missouri who have played major thank the Senator from New Mexico very roles in shaping this bill. much, not only for his fine contribution, It is important to have a clear under- but also for the deep sincerity with standing' of" just what the war powers which he has made his speech. bill would do and what it would not do. Mr. MUSKIE. Mr. President, I, too, It provides a determining role for Con- thank the distinguished senator from gress in any decision to go to war, but it New Mexico, and I commend him for does not detract-nor as a statute, can it keeping his campaign promises. detract-din any way from the constitu- Mr. President, I now yield 3 minutes tional authority of the President as the to the distinguished Senator from Flor- Commander in Chief of our Armed Ida. Forces. Mr. CHILES. Mr. President, I look for- I believe it is clear that the Founding ward to the opportunity to cast my vote _ Fathers intended that Congress should In favor of the War Powers Act. I con- have a role in making any decision to go gratulate the sponsors of the act. to war When they, provided in the Con- I voted for the War Powers Act at the stitutio' thatonly Congress shall have last session of Congress, and I feel that the power to declare war. We have the vote I cast then and the vote I shall learned from our most recent experience cast today are perhaps the two most im- with war, however, that there are situa- portant votes I have cast since coming tions where U.S. participation in a major to the Senate. conflict can result from a series of in- We have just recently engaged in two cremen l decisions, none of them in it- Presidential wars, in neither of which self seeming to justify a full declaration did Congress fulfill its responsibility to of war. In such a case, the respective carry out its constitutional role. roles of Congress and the President are I think we should clearly realize that unclear and can be the subject of bitter we have before us a bill that is not di- controversy, controversy destructive of rected at the President by limiting the national', unity at the time it is most power of the President; it is directed at needed. Americans most probably will Congress. It is necessary because Con- have different views on the wisdom and gress has failed to carry out its consti- necessity of our entering a war, but de- tutional duties. There is nothing we can bate should focus on the substance of 1' t th titutiozial the issue, itself that is on the risks and ns t respond to emergencies but not so much that it undermines the principle of shared powers and responsibilities which lies at the heart of our effort. Under the bill the President would be able to take action necessary to respond to prevent an attack or an imminent threat of at- tack on the United States or its Armed Forces or to evacuate American civilians endangered by hostilities abroad, but his authority to do so would end in 30 days without further explicit congressional approval. I think this is ample time for Congress to meet and make an appr-- priate decision on whether further ac- tion is necessary or warranted. I hope that war powers legislation will be speedily enacted. I also hope that it will never have to be used. Unfortu- nately, war powers legislation cannot in itself make the world any safer a place for America. There are other ways we try to do that--by the skillful exercise of diplomacy, by maintaining a national Defense Establishment sufficient to deter any adventurism against us by encotr- aging the peaceful resolution of disputes and facilitating greater people-to-people contacts with both our friends and our enemies. I think the President deserves great credit for his many efforts in these respects. We cannot, by legislation, change the interests or Intentions of any other gc v- ernment in the world. We can, howeti er insure that our own governmental proc- esses for handling danger conform to cur democratic principles and concepts of checks and balances and shared respon- sibility between Congress and the Execu- tive. Mr. TAFT. Mr. President, the question of the balance to be struck-between the executive and legislative branches is at the very heart of our constitutional fo:."m of government. Historically, the initia- tive in foreign policy lies with the Presi- dent, and I believe practically every Member of this body would agree that the executive branch must perform many important functions in developing and carrying out U.S. policy throughout the world. The power exercised by the President and the excutive branch, how- ever, must not be arbitrary and unre- strained. The Constitution specifically provides, in article I, 'section 8, that the Congress shall "declare war" and "raise o imi a co do by statute authority of the President. This bill re- implica ons of making or not making and support armies" with the President quires Congress to carry out its consti- war, an not on the procedures by which under article 2, section 2, provided with tutional duties. It seems that we have the matter is to be decided. The great the responsibility as Commander in Cb ief failed to do that. contribution that war powers legislation to conduct war, after receiving congres- Hopefully, by passing a statute relat- could make -would be to provide a definite sional approval. ing to ourselves, we can require those and established procedure for deciding Despite this constitutional mandfste, who sit here today and those who will on war. This would give the public the however, there have been at least 165 sit here in future days to carry out our assurance that whatever decision had instances during the history of this Na- constitutional duties. That is actually been reached reflected the wisdom and tion when American Armed Forces have what we are getting at. judgment of both their elected President been committed abroad. On only five x- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July ~0, '1973Approved For&SA(L6 kJ751N%3000700090010-9 casions has war been declared by the United States; and as to one of those, the Mexican war, the declaration oc- curred after two battles had been fought with the Congress in 1848 adopting a resolution stating that the war was com- menced "unnecessarily and unconstitu- tionally" by the President. Apart from declared wars, the Con- gress has on several occasions, when American troopa have been committed in other nations, adopted' measures relat- ing to :' a propriety of the President's ac- tion. The legislation which we are con- sidering today would be in. keeping with this tradition of legislative approval and input and by no means inconsistent with the intent of the framers of our Consti- tution. Abraham Lincoln focused upon this issue some. time ago and I believe that his thoughts are very pertinent today. In a letter to Herndon, President Lincoln stated as follows: Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such puipose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect. If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us"; but he will say to you, "Be silent; I see it, if you don't." During my service in the House while on- the Foreign Affairs Committee I in- troduced war powers legislation, and in January of 1971, when I began my service in the Senate, I introduced similar legis- lation on this issue. Last session I testi- fied before the Senate Foreign Relations Committee, stating my concern for ac- tion in this area and cosponsored the legislation reported by the Foreign Re- lations Committee, S. 2956. Unfortu- nately, the House did not act on this mat- ter. This year I am cosponsoring S. 440, and I am hopeful that the Senate will again approve this legislation. I believe it is imperative not only from a con- stitutional viewpoint but also from a practical position that citizens in this country, and the representatives have a voice in formulation of U.S. foreign policy. Mr. TUNNEY. Mr. President, this body votes again today on the War Powers Act, one of the most important pieces of legislation to come before the Congress in a generation. Last year, the Senate overwhelmingly adopted this act. The vote underscored bipartisan concern over the deterioration of the constitutional mandate to vest the war-making power in the Congress. The events of the past year, which saw the President pursue unilateral military activities in Indo- china, even after the removal of our troops and prisoners of war, indicate that the need for this legislation has not di- minished at all. I am confident that ip will be adopted once more by the Sen- ate, and hopeful that this year the War Powers Act will become law. In the 1950's and 1960's Americans found that our" Armed Forces were in- volved in repeated actions: in Korea, in Lebanon, in Vietnam, and in the Domin- ican Republic. More than 100,000 Ameri- cans lost their lives in these actions, and in not one case was there a formal dec- laration of war by the Congress. This generation saw peace at home, but suf- fered from repeated war in remote lands far from our shores. The Constitution vests the power to make war in the Congress. Both the lan- guage of the Constitution and the his- torical records of the Constitutional Con- vention underline the unequivocal con- clusion of the framers of. the Constitu- tion that the Congress-not the 'Presi- dent-was granted the authority to en- gage our Nation in war. The Constitution recognizes, however, that while the Congress has the power to make war, the President has the pow- er to execute it. The President, as Com- mander in Chief of the Armed Services, has the authority to respond to sudden attacks, conduct a war once it had start- ed, and to command the Armed Forces once they are committed to action. In an era of nuclear weapons, there is little likelihood that we will even again see the relatively massive armed con- flicts like World Wars I and II. Instead, there will be more insurgencies, civil wars, and localized flare-ups which have marked our most recent history. Such situations may not be conducive to a formal declaration of war-in some cases the parties involved are not even sov- ereign states. But this does not mean that the constitutional balance on war- making, created almost 200 years ago, is irrelevant. Indeed, the history of our tragic involvement in Indochina shows just how dangerous the abandonment of the constitutional mandate can be. The Congress and the President must move to share once again the decisionmaking power in this vital area of war and peace. New arrangements can and must be made to take account of both modern tech- nology and communications and our his- torical and constitutional heritage. . In the past 25 years, there has grown a severe imbalance in the relative voice of the Congress and the President in the warmaking function. Despite the Con- stitution, despite the consistent tradi- tional separation of warmaking power, affirmed by the courts, the executive branch, and the precedent of a century and a half of our history, the past gen- eration has witnessed the dramatic ex- pai sion of the role of the Executive in the power to make war. It has mattered not whether the Presi- dent was a Democrat or a Republican. In Korea, in Vietnam, in the Dominican Re- public, in Cambodia, and in Laos-a startling variety of locations and activi- ties-the President of the United States has committed a large number of Ameri- can troops-without congressional ap- proval. Once the Congress was included in the process, it was faced with inade- quate information, its was brought into the decisionmaking process well after the inception of the crisis, and often it was. confronted with a fait accompli. This is not to deny that 'many situa- tions might require an American military presence. It is to stress that the methods selected by recent American Presidents S 14215 for introducing and maintaining Ameri- can troops in hostilities indicate that de- fects exist in the process by which war- making decisions are made. In response to the increasing preponderance of the Executive in this and related areas, it is essential for the Congress to be involved and to be aware. The War Powers Act should help Con- gress in this effort. It should restore to the Congress its proper role in the war- making process. Our foreign policy can only be enhanced when individual mem- bers of Congress recognize that they have the responsibility, on an ongoing basis, for evaluating properly the foreign as well as the domestic policies in which our Nation is involved. The War Powers Act not only restores the proper role of the Congress in the warmaking process. It also reaffirms the proper role of the Executive. It neither denies nor limits his authority. Section 3 of the bill defines the emergency condi- tions in which the Armed Forces of the United States may be introduced into hostilities in the absence of the declara- tion of war of Congress. The President can respond to any of these emergencies for a period of 30 days, after which he must go to Congress-in the absence of certain extraordinary circumstances- to sustain the continued use of the Armed Forces. Beyond these relatively, limited and specific categories, the act provides a final, considerably broader, category which allows the President to introduce the Armed Forces . in hostilities in the absence of a declaration of war for any reason-but pursuant to specific statu- tory authorization. Mr. President, this legislation is ur- gently needed. It is more important than ever that the people of America, through their elected representatives, should be closely involved in the crucial decisions of war and peace affecting their lives and well-being. This act will do this, and ex- pose these vital decisions to open discus- sion and consideration, as they should be. Secret, executive warmaking has led to repeated tragedy for this great nation, and contributed more than anything else to the dissension and bitterness which have unnecessarily and tragically plagued our country in the last decade. The passage of this bill will not only restore the Congress to its rightful place in the constitutional scheme of decision- making, but it will also help restore the confidence of the American people in their government, and help to heal the wounds opened by our most recent ex- cursions in undeclared warfare. Mr. HUDDLESTON. Mr. President, I am pleased to cosponsor and support S. 440, the War Powers Act. Now that our Nation has disentangled itself from a divisive and little-under- stood war, we have a special opportunity to learn from the mistakes of the past, to build on a somewhat unfortunate ex- periehee and to design for a more secure future. Many developments offer encourage- ment for success: the opening of doors to China, the visit of Mr. Brezhnev to our country, the promise of continued progress at the SALT talks, the conven- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14216 Approved For R(;O1 GRRTSSIONA6I: :EC lff 5BgRR%D0700090010-9July 2b, 1973 ing of the East-West Security Conference in Helsinki, and the President's reaffir- mation of our Nation's continued com- mitment and special relationship with Europe. We must not, however, permit these sanguine developments to divert us from a needed period of -introspection-not a breast-beating or destructive period- but a constructive one designed to create structures and processes that will pre- clude our repeating mistakes of the past. Certainly we cannot predict the future and we cannot foretell and forestall all possible misadventures.. But we can take steps to prevent a repetition of those events and actions we would prefer to see not happen again. The war powers legislation before us reflects the best of our efforts to insure wiser courses in the future in the use of U.S. troops abroad. It is soundly based legislation-not on some new foundation-but upon the con- cepts of the past and on a government of balanced powers conceived almost 200 years ago. The principal premise of S. 440 is that the war powers are, under the Constitu- tion, shared powers and that both the Congress and the Executive have prerog- atives-and responsibilities-when U.S. Armed Forces are to be involved in hos- tilities abroad. The prerogatives of the Executive lie in article II, section 1, of the Constitution which provides that the "Executive Powers shall be vested in a President of the United Statesof America" and in sec- tion 2 of the same article which specifies that the President shall be Commander in Chief of the Army and Navy and shall have the authority to negotiate treaties and appoint ambassadors, both, with the advice and consent of the Senate. The basis for legislative power in the committing of troops to hostilities abroad rests in article I, section 8 of the Con- stitution which authorizes Congress to provide for the common defense, to de- clare war, to raise and support-for up to 2 years at a time-an Army and Navy, to make rules to regulate and govern the military forces; to provide for calling out the militia to enforce laws, suppress in- surrection and repel invasion; and to make all laws necessary and proper for carrying into execution its formentioned powers and all other powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof. The questions which have arisen over the exercise of the so-called war powers derive from interpretations of -these powers, the intent of the framers of the Constitution and the practices of history. Obviously, some of the constitutional provisions referred to are ambiguous and overlapping as to exercise. Furthermore, the courts, thoughout our history, have been reluctant to rule on cases involving these powers, as they relate so directly to the separation of powers. Still there are interpretations and there are both notes on and writings by the participants in the Constitutional Convention, which provide some guidance on the meaning of the provisions. These interpretations and writings suggest, first of all, that the framers drew a dis- tinction between offensive and defensive actions. Alexander Hamilton, for one, wrote that the Constitution provided that- "The Congress shall have power to declare war", the plain meaning of which is, that it is the peculiar and exclusive province of Con- gress, When the nation is at peace, to change that state into a state of war, whether from calculations of policy, or from provocations or injuries received; In other words, it be- longs to Congress only, to go to war. But when a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Con- gress is nugatory; it is at least unnecessary. Second, the power of the President in the utilization of forces abroad is not unlimited. Thomas Jefferson, noted that- We have already given in example one ef- fectual check to the Dog of War by trans- ferring the power of letting him loose from the Executive to the legislative body, from those who are to spend to those who are to pay. And, Dr. Henry Steele Commager, in testmony before the Senate Foreign Re- lations Committee, suggested: The power to begin a war, is lodged very clearly in the legislative branch, and the power; to fight a war, to make the war, is lodged in the Executive. Third, there are constitutional and legal bases for congressional, authority to set regulations and prerequisites for the use of U.S. troops abroad. One of these is the latter part of the necessary and proper clause, which empowers Con- gressto enact laws necessary and proper for carrying out the powers vested by the Constitution in the Government of the United States, or in any Department or officer thereof--in other words, to set procedures for the Executive, and execu. tive departments such as Defense or Stated,, to follow in exercising their au- thorities. Another, as Prof. Richard B. Morris pointed out in 1971 hearings be- fore the Senate Foreign Relations Com- mittee, is that since- Congress was given, under the Constitu- tion, the right to declare war, it has the right to pass enabling legislation to indicate just what war is. Finally, there are a few-a scant few, to be sure, and mainly from the early years of our Nation-but a few court cases; such as the Eliza, the Flying Fish and Prize cases, which lend credence to the argument that there must be a con- gressional basis for the exercise of war powers. I believe, therefore, that there is a very adequate constitutional basis for the war powers legislation before us, and that, as Prof.: Alexander Bickel recommended in the 1971 hearings, the way for Congress to reassume the constitutional powers it does have, is to reassume them. Intrinsi- cally, the war powers bill is an attempt to redress the imbalance which, by practice and legislative inaction, grew up between the Executive and legislature and to re- place, it with an equilibrium based upon shared constitutional authorities and upon, the concepts of a balance of powers and a separation of powers. Beyond this, however, there are two practical bases for the legislation before us. The first, of course, is that we must seek to avoid those involvements which are likely to come .? to be considered as contrary to our Nation's interest and lacking of our people's support. I would be the firstto admit that that is riot an easy task. The future does not res:.de in a crystal ball, revealing events and allow- ing us the luxury of time to examine and analyze policy options and their implica- tions. And, even if it did, there would be no guarantee against fallacies of our own judgments. But, not attempting to anticipate sit- uations and not preparing for passible alternatives breeds its own ill results. A divisive war contributes little to a na- tion. And, there is perhaps nothing less conscionable` than asking the young men of a nation to fight in a war with ob- scure and unnamed` objectives and with- out home support. As Senator JOHN STENNIS, the chairman of the P.xmed Services Committee so eloquently slated: The overriding issue is that we mist in- sure that this country never again goes to war without the moral sanction of the Amer- ican people. This is important both in prin- ciple and as practical politics. Vietnam has shown us that by trying to fight a war with- out the clear-cut prior support of the Amer- ican people, we not only risk military inef- fectiveness but we also strain, and car. shat- ter, the very structure of the Republic. At a time when our Nation continues to have a multitude of commit:nents throughout the world, as outlined In such detail in the study of U.S. Security Agreements and Commitments Abroad, we must continue to seek ways to avoid unwanted entanglements. Beyond that, however, we mus11; as I noted in the opening paragraphs of these remarks use this time to seek the crea- tionof new procedures and structures to insure a more secure world for ourselves, our children and all Americans to come. To do that, we must build at home and abroad. I have already referred to a number of the promising developments abroad. S. 440 is a promising develop- ment at home. The war powers legislation represents one method by which we can strengthen our domestic processes-one mer:,ns of bringing the collective judgment of the Congress and the executive brar.ch to bear on the use of our Nation's Armed Forces. It represents one means by which we-may, hopefully, have- better decisions and greater cooperation in the future in the very significant area of warmaking. It represents one mean by which we might not only restore a constitutional balance, but a balance among the views, opinions, and options of those who have been selected to lead and the millions more they represent. Mr. President, this legislation is the re- sponsible way for Congress to discharge its obligations-not only to provide for this Nation's defense and all thi_t inn- plies-but also to promote peaceand se- curity. I urge its adoption by the Senate. Mr. TALMADGE. Mr. Presider. t, the single most important decision w,.- as a nation can make is the decision to go to.war. In our Nation's relatively short l:. istory of 197 years, the Armed Forces :)f the Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20; 1973Approved For Cf fiESSI lK ilyJ M75[ ~( 1Q 000700090010-9 United States have been committed abroad on 174 separate occasions. Yet, the Congress has formally declared war only five times. This means that for every war declared by the Congress, we have been involved militarily on over 30 other occasions sole- ly at the direction of the President. Our Nation has been at war for 16 of the last 23 years, and in the last 10 years alone Presidents have launched major military interventions in seven different nations. In short, Mr. President, since World War II, our Nation has become greatly overextended throughout the world, mili- tarily, politically, and economically, of- ten without any expressed congressional mandate. The expanion of Presidential authority and the erosion of Congress' role in for- eign affairs generally and in war policy specifically have precipitated a constitu- tional imbalance of grave proportions. The purpose of S. 440, the so-called War Powers Act, is to restore that con- stitutional balance of responsibilities be- tween the executive and legislative branches without hamstringing the Pres- ident in the performance of his duties as Commander in Chief. How does this legislation go about ac- complishing this goal? Stated simply, it defines the circumstances in which the President, without prior congressional authorization, can unilaterally commit the Armed Forces of our Nation, and the circumstances in which prior congres- sional authorization is required before the President can act militarily. The starting point, and rightly so, is the Constitution itself. The bill recog- nizes that the Constitution vests in the President the power, even in the absence of a congressional declaration of war, to use American forces to repel sudden at- tacks on U.S. territory or U.S. forces out- side this country, and to protect U.S. na- tionals whose lives are endangered abroad. These emergency powers have been exercised by various Presidents in the past, and there is no question that this authority arises from the President's independent constitutional office as Com- mander in Chief. The bill goes to great lengths to pre- serve and protect .these constitutional prerogatives of the President. Recogniz- ing that ours is a troublesome and peril- ous world, it further empowers him to use the Armed Forces to forestall the -threat of a direct and imminent attack on this country or this country's forces abroad. However, the bill clearly and unequiv- ocally states that any other use of the Armed Forces by the President for any other purpose in any other circumstance is prohibited, unless specifically author- ized by Congress by law in advance. Perhaps most importantly, Mr. Presi- dent, the bill prescribes procedures by which the Congress may overrule the President's exercise of his emergency war powers. Any commitment of U.S. forces in- itiated by the President under the emer- gency conditions outlined in the bill is limited to 30 days, unless Congress by specific legislation authorizes their con- tinued use. Moreover, if it disapproves of the Presi- dent's action, Congress may pass legis- lation terminating the use of our forces before the 30-day period has expired. In my judgment, these provisions are the essence of the bill. The President, any President, would stand forewarned against any emergency use of the Armed Forces that did not conform with the law and that would not command the support of the Congress and the Ameri- S 14217 the unhappy episode are still strong and bitter. While such an objective to do something about future episodes is laudable, the bill would be highly coun- ter-productive in this regard. The great- er likelihood is that of engendering Viet- nam-type situations in the future, rather than preventing them. The Constitution's meaning regarding deployment of our Armed Forces abroad has become well defined in these past 185 years. This has come about not only through the explicit language of the American troops into action because of some vague treaty commitment or ex- ecutive agreement. Let us have no more of this implying or inferring after-the-fact approval of a Presidential war because of congres- sional passage of an appropriations bill providing supplies and ammunition to troops already in the field of battle. Finally, Mr. President, in cosponsor- ing and supporting this legislation, my intention is not to criticize those Presi- dents whose administrations have spanned the Vietnam war. My desire is not to strip the Commander in Chief of his rights and responsibilities under the Constitution. Nor am I motivated by jeal- ously or animosity toward the executive branch. If any indictment lies, it more appropriately lies with the Congress which has stood mute while its constitu- tionally vested role in war policy and de- cisions was eroded. In answering the question of why, after 197 years, a war powers bill is needed now, let me restate what I said at the outset: The single most important deci- sion we as a nation can make is the de- cision to go to war. I strongly feel that we must make that decision as a nation. In the recent past, however, the Presi- dent, acting virtually alone, has deter- mined whether we followed a course of war or peace. This is not right. It is the people who should decide this course, through their elected representatives. The decision is too great for one man to make alone. The War Powers Act, S. 440, is a step in the right direction toward restoring this authority and this responsibility to the people and creating a better and more effective partnership between the Congress and the executive branch in foreign affairs. Mr. HRUSKA. Mr. President, I rise in opposition to the bill S. 440 "to make rules governing the use of the Armed Forces of the United States in the ab- sence of a declaration of war by the Con- gress." This is a bill which seeks to legislate in a field of constitutional considera- tions; to try to effect a change in powers granted to the President by the Con- stitution. To the extent it does so, it will be totally ineffective, and without force or effect, except perhaps to confuse, delude, and even render affirmative harm. it is quite clear that wide sympathy for the bill is based upon a desire to do something about future Vietnams. This is understandable because memories of literally scores of instances. Such development and usage have served our Republic well. Even if a statute could change them, it would not be wise to do so. - But it is respectfully submitted that the pending measure cannot alter that which the Constitution confers. It is to this proposition that I address myself. Under the Constitution the power to declare war, to raise and support the military, and related powers, are vested in the Congress.. The power to command and to deploy the Armed Forces is vested in the President as Commander in Chief. As Prof. Eugene Rostow pointed out in a debate with Prof. Alexander Bickel at Yale Law School last October, this is a typical example under our Constitution of divided power which is also shared. There are many other examples as well. Before us now is a bill designed to de- fine the limits of the President's author- ity in this area. This is, so it is claimed, a restorative measure, offered to insure that Congress may freely exercise those .powers the Constitution and the courts have said it already has. But in attempt- ing to make specific what the Constitu- tion has left general, and in trying to define in advance the outer limits. of the President's authority to act in the inter- est of national security, S. 440 charts a precarious constitutional course. Congress cannot by legislation draw to itself power meant to be shared at the least, and at the most to be exercised by a coequal branch of goz?ernment. If S. 440 does this, it is unconstitutional. If it does not, it amounts to a useless surplus- age which could easily lead to misunder- standing both within and outside this country. Does the power of Congress to partici- pate in the warmaking process need to be restored? I think history argues to the contrary. There have been close to 200 instances in which this country has employed military force. There have been but five formal declarations of war dur- ing this period, with perhaps- six addi- tional congressional authorizations. This Senator is compelled to agree with Pro- fessor Rostow, who asserted during the previously mentioned debate with Pro- fessor Bickel at Yale, that there has been no substantial change in recent years in the pattern of constitutional usage re- garding the division of the war powers between Congress and the Presidency. Mr. President, I am most fearful that what we have in S. 440 is not an effort to restore atrophied authority-an author- ity which is as alive and viable now as it was when the Constitution was Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S14218 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD - SENATE July 20, 1973 framed-but is instead an attempt to approach this subject in the proper vested in the President. James Madison and amend the Constitution by a simple leg- fashion. We have amended the Constitu- Elbridge Gerry then jointly moved to sub- islative act. tion from time to time. It can be done stitute the word "declare" for the word Cases have been put forward in sup- again, if need be. But I do not believe make," thus "leaving to the Executive " in their port of this legislation which; in the opin- bills like S. 440 can legally be utilized to taeks.' words, Here then was as power the e Cune! Convention sudden s n ec at- port of this Senator, represent extremely dubious legal precedent. A prime example is the case of Youngstown Sheet and Tube Co. v. Sawyer, 343 U. 579 (1952). This decision related to a purely domestic effort to take over the major steel mills of this country. If the case stands for anything at all, it is the reaffirmation of the President's authority to `act as Com- mander in Chief in response to external threats as expressed in the following lan- guage from the opinion by justice Jack- son: We should not use this occasion to "cir- cumscribe", much less to contract, the law- ful role of the President as Commander-in- Chief. I should indulge the widest latitude of interpretation to sustain his exclusive func- tion to command the instruments of national force, at least when turned against the out- side world for the security of our society. Other cases such as United States v. Midwest Oil Company, 236 U.S. 459 (1915), are not only of questionable sup- port for the limitations draNvn in S. 440, but may actually provide precedent for the oppositionpoint of view; These cases and all other relevant de- cisions need to be analyzed and placed in their proper perspective by recognized constitutional scholars. Existing bodies of opinion need to be gathered within a logi- cal framework of study. The Judiciary Committee is the place to do this, Mr. President, not the Senate floor. Reasonable men often differ on ques- tions of great moment. The approach taken in this legislation has been gen- erally supported by Professor Bickel of Yale, and opposed by Professor Moore of the University of Virgini%--both men distinguished legal scholars, This type of disagreement is not new. But the fact that there is some basic disagreement on what Congress can do under the Con- stitution by attempting to legislate in this area only underscores the fact that we must proceed with great caution. We will soon celebrate our 200th year as a Republic. The basic war powers pro- visions in the first two articles of our Constitution have remained as the guid- ing principles throughout our history, throughout the almost 200 incidents where armed force was employed by this country outside its borders. It is late in the day for us to now proclaim that we must have legislation now to improve this balance of power, to somehow make it balance better. Mr. President, either something balances or it does not. And as I read the Constitution, the balance is there-and has been all along. The Congress has been playing its role all along, through the use of the purse- strings, regulation of the size of the mili- tary, and expressions of viewpoints either in accord with or in opposition to policies taken by the executive branch.If the results have not always turned out to our liking, this does not Inean that the Constitution is at fault-only ourselves. If it Is felt that the provisions of the Constitution dealing with war powers are indeed in need of revision, let us then do this, Mr. President, scholarly literature on this st bjest is quite volumious. One of the better papers is the one delivered before, the Subcommittee on National Security Policy and Scientific Develop- ment (Committee on Foreign Affairs) in the House of Representatives on July. 1, 1970. The witness was the Honorable William H. Rehnquist, then Assistant Attorney General, Office of Legal Coun- sel. He is now a Justice of the United States, I ask unanimous consent that the text of his statement be printed at the conclusion of my remarks. Mr. II President, the Senate would do well to reject this pending bill. There being no objection, the state- ment was ordered to be printed in the RECORD, as follows: STATEMENT OF WILLIAM H. REHNQUIST Mr. Chairman: I am pleased to appear be- fore the Subcommittee this morliing to dis- cuss the constitutional division of war-mak- ing authority between the President and Congress. I shall discuss the legal and his- torical authorities which seem to me relevant on this question. I have tried to make my- self familiar with a number of the bills and resolutions which are currently before this Subcommittee and would be happy to an- swer questions on them. However, my pres- entation will be addressed to the overall con- stitutional question presented and will not focus specifically on these proposals. As Mr. Stevenson has already pointed out, the constitutional question under consid- eration is an exceedingly difficult: one. Both the President and Congress have some measure of authority over war-making. The Congress is specifically granted the powers "to raise and support armies," "provide for the common defense", "to declare war, grant lettem of marque and reprisal, and make rules !concerning captures on `land and water," "provide and maintain a navy," "to make rules for the government and regula- tion of the land and naval forces," and "to make all laws which shall be necessary and proper for carrying into execution the fore- going powers. .. The President, on the other hand, is designated as the "Com- mander-in-Chief of the Army and Navy of the United States" and is directed to "take Care that the Laws be faithfully executed." This textual allocation of authority readily suggests that a division of the Nation's war power, between the President and Congress was intended. An examination of the pro- ceedings of the Constitutional Convention confirms that suggestion. Those proceed- ings clearly indicate that the Framers did not intend to precisely delimit the boundary between the Executive Branch and that of the Legislative Branch. While the Framers rejected the traditional power of kings to commit unwilling nations to war, they at the same time recognized the need for quick Executive response to rapidly developing in- ternational situations. - The:. accommodation of these two interests took place in the session of the Convention on Friday, August 17, 1787. On that date, the convention was discussing draft lan- guage;which would have empowered Congress "to make war". The Convention, of course, ultimately decided to confer instead the power "to declare war". The debate which led to this change, I believe, is illuminating. Charles Pinckney urged that the war-mak- ing power be confided to the Senate alone, while, Pierce Butler asked that the power be ognition of the need for Swift Executive response in certain situations. Rufus :King supported substitution of the word "der: are" on the ground'-that the word "make" might be understood to mean "conduct war" which he believed to be an Executive function. It is interesting to note that when the first vote on the motion was taken, there were two votes in favor of retaining "make." However, after Mr. King made his point regarding the conduct of hostilities, the representative from Connecticut, Mr. Ellsworth, changed his vote to support the substitution. ''hus, the only dissenting vote was that of New Hampshire. Pinckney's motion to strike out the whole clause and thereby presumably vest the entire war-making power in the Executive was then defeated-by voice vo;e. The Framers were painting with an ex- tremely broad brush; they likely realized that it would be unwise to attempt to fix in detail, and to freeze, the allocation of authority between the President and Congress. The Framers undoubtedly recognized the wide variety of international Situations S,hich might arise and saw fit to do no more than announce general contours of the authority of the President and Congress. Several c,f the pending legislative proposals are, I believe, inconsistent with this salutary approacl, and I believe for that reason that their enact- ment would be unwise. The Convention debate indicates that the Congress has exclusive authority over some phases of war-making and that the :?resi- dent has similar authority over others. Con- gress, for example, is the only branch of gov- ernment which can formally declare wer. On the other hand, the President has uru'e- stricted and exclusive authority to repe: sud- den attacks. It is between these two ends of the spectrum that the question of deploy- ment of troops or commitment of them to limited hostilities arises. In this aria of "shared power," an attempt must be made to understand the process of decision leading to the deployment and commitment to com- bat of our Armed Forces. There are many historical precedents. On numerous occa- sions the President has consulted the Con- gress before taking action; on numerous others, he has not. If these precedents de- monstrate anything, they demonstrate that different situations require different re- sponses and procedures, and that hart and fast rules should be avoided. The Cuban missile crisis is a case in point. In that instance, it should be notet that Congress has enacted a joint resolut'.on in September, 1962, before the-Russian missiles were discovered. The language of the resolu- tion was quite broad and it arguably author- ized President Kennedy's later act- on. I would suggest, however, that even without that resolution President Kennedy's action was entirely consistent with the corsjltu- tional framework. Although there hat; been no actual attack on the United States and it therefore could not be said that President Kennedy was repelling a sudden attack, the situation was a grave one and the threat to the Nation's security necessitated a speedy and effective response. The situaticn re- quired immediate action, and there was in- sufficient time after the discovery of the missiles and launching apparatus for :'ormal consultation with Congress. In my judg- ment, it would be a great mistake to attempt to prevent a President from responding im- mediately to a similar threat arising in the future. I should like to turn my attention now to the suggestion which hassnow gained cur- rency in some quarters; namely, that; Con- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved ForL~ I ~ ' JTW6 ff7%WJ 000700090010-9 S14219 grass in recent decades has relinquished its There had been no prior authorization by 354 U.S. 1. If a congressional declaration of constitutional authority over war-making to Congress for Taylor's march south of the war would be required in other circuangtances the President. Stated categorically, this con- Nueces. Justice Grier, in his opinion in Tice to commit United States forces to hostilities tention cannot withstand an examination of Prize cases, commented on this fact, stating: to the extent and nature of those under- the record. In the first place, recent Presi- "The battles of Palo Alto and Resaca de la taken in Korea, the ratification of the United dents have repeatedly called upon Congress Palma had been fought before the passage Nations Charter would not obviate a like to share in expressing the determination of of the act of Congress of May 13, 1846, which requirement in the case of the Korean the United States to meet foreign aggression, recognized 'a state of war as existing by the conflict. Congress, of course, enacted the Gulf of act of the Republic of Mexico."' 2 Black 634. Presidents have likewise used their author- Tonkin Resolution at the request of Presi- In 1854, President Pierce approved the ac- ity as Commander-in-Chief to deploy United dent Johnson. Similarly, Congress enacted tion of the naval officer who bombarded States forces throughout the world. Critics resolutions in 1962 in regard to Cuba and in Greytown, Nicaragua in retaliation against a of President Wilson claimed that his action 1958 in connection with the Middle East. In revolutionary government that refused to In arming American merchant vessels in early each of these instances, Congress and the make reparations for damage and violence to 1917 precipitated our entry into the First President acted together, and thus presented United States citizens. This action was up- World War. a united front to the world. Where time per.. held by Justice Samuel Nelson, a Justice of Similarly, President Roosevelt's critics mits consultation, this unity should be the Supreme Court of the United States, sit- have asserted that various actions he took sought for it is unquestionably in the best ting as a Circuit Justice in Durand v. Hollis, to aid the Allies in the year 1941 played a interests of the nation that Congress and the 4 Blatch, 451 (1860). In his opinion in that part in our involvement in the Second World President speak with a single voice on such case, Justice Nelson said: Wdr. Whatever substance there may be to a subject. . "The question whether it was the duty of these criticisms, the Presidential actions do Congress, then, has exercised its constitu- the President to interpose for the protection stand as the constructions placed by those tional authority in recent years. This is not of the citizens at Greytown against an irre- two Presidents on their power as Commander- to say, however?that Congress must always sponsible and marauding community that in-Chief of the Armed Forces. be consulted before American Armed Forces had established itself there, was a public po- I do not contend that these historical are deployed or committed to hostilities litical question, in which the government, as precedents establish the principle that the abroad. There are numerous instances in our well as the citizens whose interests were in- president alone has authority to deploy and history in which Presidents have deployed volved, was concerned, and which belong to commit American 'Armed Forces abroad. I American Armed Forces outside of the United the Executive to determine; and his decision mention them for the purpose.of demon States in a way which invited hostile retalia- is final and conclusive, and justified the de- staating that throughout our history our tion from a foreign power. Congress has on fendant in the execution of his orders as Sec- Presidents have, on occasion, deployed some of these occasions acquiesced in the retary of the Navy." 4 Blatch. 454-455 (em- American forces without first obtaining con- President's action without formal ratifica- phasis supplied). gressional authorization. To be sure, our tion; on others it has ratified the Presi- In April, 1861, President Lincoln called for recent Presidents have engaged in the same dent's actions; and on still others it has 75,000 volunteers to . suppress the rebellion practice, but in view of the similarity be- taken no action at all. On several of the by the southern of the Cstates,acd proclaimed a tween the practices followed this century occasions, individual members of Congress, blockade y. These actions and last it cannot be validly contended that and, at the close of the Mexican War, one were taken prior to their later ratification congressional authority has eroded in recent House of Congress, on a preliminary vote, by Congress in July, 1861: The Supreme years Far from demonstrating any weak- have protested Executive use of the Armed Court upheld the validity of the President's ness in 'our system, the events of the last two Forces. While a particular course of Execu- action in proclaiming a blockade in the Prize hundred years confirm the wisdom of the tive conduct cannot conclusively establish Cases. flexible design set out in the Constitution. a constitutional precedent in the same man- In 1900, President McKinley sent an expe- I would close by stating the obvious fact ner as it would be accomplished by an au- dition of 5000 United States troops as a com- that this is an area in which cooperation be- thoritative judicial decision, a long-contin- ponent of an international force during the tween the President and Congress is vitally ued practice on the part of the Executive, ac- Boxer Rebellion in China. While Congress Important. The suggestion that the power quiesced in by the Congress, is itself some recognized the existence of the conflict by of Congress has somehow "atrophied" is un- evidence of the existence of the constitu- providing for combat pay, it neither declared tenable. If Congress had occasion to com- tional authority necessary to support the war nor formally ratified the President's plain of President Truman in 1950, it had practice. As stated by Justice Frankfurter in action. equal occasion to complain of President Polk his concurring opinion in Youngstown Sheet Similar Incidents in Central America took in 1846 & Tube Co. v. Sawyer, 343 U.S. 579, 610. place under the administrations of Presidents The Framers did not set up a checkerboard "The Constitution is a framework for gov- Theodore Roosevelt, Taft and Wilson. Naval of rigidly marked alternately colored squares ernment. Therefore the way the framework or armed forces were sent to Panama, Nicara- with one color assigned to the President and is consistently. operated fairly establishes gua, and twice to Mexico in the first two dec- the other to Congress. They designed a more that it has operated according to its true ades of the Twentieth Century. On none of flexible plan for joint responsibility which nature. Deeply embedded traditional ways of these occasions was there prior congressional left room for "play at the joints." Indis- conducting government cannot supplant the authorization. putably belonging to Congress alone is the Constitution or legislation, but they give Prior to the Vietnam conflict, the most re- decision as to how much money shall be meaning to the words of the text or supply cent example of Presidential combat use of appropriated to the raising and supporting them." 346 U.S. at 610. American forces without congressional de- of United States military forces. Indispu- The historical examples have been mar- claration of war was President Truman's in- tably belonging to the President alone is the shaled in numerous recent studies of the tervention in the Korean Conflict. In many power to repel sudden attacks, the power to President's powers, and I will but summarize senses, this Is undoubtedly the high water determine how hostilities lawfully in prog- some of them briefly. mark of Executive exercise of the power of ress shall be conducted, and the power to President Jefferson, in 1801, sent a small Commander-in-Chief to commit American protect the lives and safety of U.S. forces squadron of American naval vessels into the - forces to hostilities. In the field. The middle ground is under- Mediterranean to protect United States com- Following the invasion of South Korea by standably, less clearly delineated, but there merce against the Barbary pirates. He was of the North Koreans in June, 1950, and a re- are guideposts based both on historic us- the view that for these ships to take offen- quest for aid by the United Nations Security age and the language of the Constitution sive, as opposed to defensive, action, con- Council, President Truman ordered air and which shed light on the proper allocation gressional action would be necessary. Yet it sea forces to give South Korean troops cover of responsibility in particular cases. More is worth noting that by dispatching these and support and ordered the Seventh Fleet than this' the Framers wisely did not at- warships to the Barbary Coast to protect to guard Formosa. Ultimately 250,000 troops tempt; and I seriously question whether United States commerce from piracy, Jeffer- were engaged in the Korean War which lasted their decision on this point should, even son invited retaliation. for more than three years, if it could, be reversed by enactment of legis- In 1845 President' Polk ordered military President Truman relied upon the United lation now pending before the Committee. forces to the coast of Mexico and to the west- Nations Charter as a basis: for his action, as The enactment of legislation which would ern frontier of Texas in order to prevent any well as his power as Commander-in-Chief. lay down specific guidelines as to the respec- interference by Mexico with the proposed The fact that his actions were authorized tive constitutional roles of the President annexation of Texas to the United States. by the United Nations Charter, however, does and Congress, runs counter to each of these Following annexation in 1946, Polk ordered Not reduce the value of the incident as a principles. General Zachary Taylor to march from the precedent for Executive action in committing Mr. ROBERT C. BYRD. Mr. Presi- Nueces River which Mexico claimed as the United States Armed Forces to extensive dent, I rise in support of S. 440, the war southern border of Texas, to the Rio Grande hostilities without a formal declaration of bill, of which I am a cosponsor. River, which Texas claimed as her southern war by Congress. The United Nations Charter powers boundary, and beyond. While so engaged, was ratified by the Senate and has the status No legislation, in my judgment, is more Taylor's forces encountered Mexican troops, of a treaty, but it does not by virtue of this essential than is this bill in the efforts and hostilities between the two nations com- fact override any constitutional provision. of the Congress of the United States to menced on April, 25, 1846. Geofroy v. Riggs, 133 U.S. 258; Reid v. Covert, restore a proper balance between the Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14220 Approved For Release 2005/06/06 : CIA-RDP75B00380R000700090010- CONGRESSIONAL RECORD -- SENATE my ~0, 1_97,.3 executive and legislative branches of government. The significance of this bill, however, goes beyond that immediate and desir- able objective. It is important to all cit- izens as well, inasmuch as the life of every citizen of this RepublLe can be of-_ fected by the far-reaching decisions which may be made with respect to the questions of war and peace. This bill plows no new ground. It seeks instead, to reaffirm and to reestablish the original intent of the framers of the Constitution. Its aim, in the simplest terms, is to set forth guidelines for the use of the Armed Forces of the United States in so-called "undeclared wars," so that in the future the best judgment of both the Congress and the Chief Ex- ecutive may jointly be brought to bear upon the problem at hand. Not only the events of recent years, but also the use of U.S. forces in. undeclared hostilities by Presidents in years past, make this legislation necessary. Passage of this bill is especially important at this point in our history when the United States is moving toward a reassessment of its responsibilities and its future role as a world power. The approval of this bill is needed so that in the future there may be no mistake and no misunder- standing about the circumstances In which our Armed Forces may be used without a declaration of war by the Con- gress. The authority of the President of the United States to act appropriately in an emergency Is not impaired by this bill. Section 3 of this measure spells out in detail the conditions or circumstances under ' which the President, as Com- mander in Chief, can act to repel or fore- stall sudden attacks, or to protect U.S. citizens whose lives might be endangered abroad. Subsections (1), 12), and (a) codify the implied power of the Presi- dent to act in emergency situations. Sub- section (4) of section 3 deals with the delegation by Congress of Additional au- thority to the President through statu- which the President and the CongreW, working together, could act to deal with any contingency which might arise. It is this provision of the bill which would be brought into play in any future situation such as that from which we are only now extricating ourselves in Indochina. The language here would re- quire that the Congress participate with .. Ped in any decisitm to ailthnrI9.e he en n ed Forces ii A f th anon - ... rm ^.__?- use o e other than the three emergency cage- this wise and wonderful foundation for the earliest days of the Republic, all gories of sudden attack upon the United our Republic and understand the evolu- three branches of the Federal Govern- States, attack upon its Armed Forces, or tion ! of the war power's exercise, it ment have recognized that this is not so, the protection of its natials abroad, would be appropriate to look back over and that not every armed confliA be- Section 5 of the bill provides the 30- a period of events beginning 196 years tween forces of two sovereigns is "war." day limitation upon emergency action ago next month. This fact affords no final answer to the by the President, and seems to me to be DIVISION OF THE WAR POWER constitutional question of the division of as satisfactory a solution as may be de- The draftsmen of the Constitution authority between the President and vised to the problem of reconciling the clearly intended to divide the war power Congress in exercising the war :Dower, necessity for swift retaliatory action in between the President and Congress, but but it does suggest that the effort ;o find the event of attack with the constitu- just as clearly, did not intend to precise- an answer is not advanced by a mechani- tional requirement that Congress make ly define that boundary. They rejected cal application of labels to various fact the ultimate judgment upon the question the traditional power of kings to commit situations. of waging war. unwilling nations to war to further the Congress, during the so-called unde- It is not my purpose in these brief re- king's international political objectives. clared war with France which lasted marks to go into more detailed aspects At the same time, they recognized the from 1798 to 1800, authorized by statute of S. 4;40. Suffice it to say, I think, that need for quick presidential response to this is a bill whose time has come. Presi- rapidly developing international situa- dential warmaking must be brought un- tions. der control. The Congress must reassert The accommodation of these two in- itself in this vital area in which the Con- terests took place in the session of the stitution makes it so unmistakably clear constitutional convention on Friday, that the legislative branch bears the ul- August 17, 1787, when the enumeration timate, responsibility. The disclosures of the powers of Congress were sub- this week of the hundreds of secret U.S. mitted to the delegates. A- discussion oc- bombitg raids carried out over Cambodia curred on the draft language empower- and Lp:os-and the falsification of re- ing Congress "to make war." ports concerning them-sharply under- As reported by James Madison, k- th t th scores the necessity for action. If war is too important a matter to be left tothe generals, it is also too import- ant a platter to be left to the Commander in Chief alone. This is not to suggest that the Congress is infallible in its-wisdom. But in times when national commit- mentslmay require action, or in times of national peril, the collective best judg- ment of the Nation's elected leaders- legislative and executive together-is the Nation's one best hope of following the right course of action. Mr. DOLE. Mr. President, the War Powers Act before the Senate today is a proposal of substantial importance to the Nation. It steps into one of the Con- stitution's uncharted gray areas and attempts to establish some clear lines of authority, responsibility and direction where' now there is only the ambiguity of yester'day's history and the uncertainty of tomorrow's events and circumstances. The war power is one of the most :lm- portaut aspects of nationhood. It is a country's ability to defend Itself and assert its rights in the world. Over the course of history the war power has been abused by some nations, and the right of self defense has undergone a cancerous mutation into a tool of aggression. But as we look back at other nations and the history of wars between them, we see that the abuse of the war power did not usually originate with the nation itself, its people. Rather this abuse grew out of improper allocation or assumption of the ability to use the war power. Some- times'this wrongful use of the war power could' be traced to structural deficiencies in the government. In other cases the struc~ure was sound, but individuals or groups within the structure were unwise, subject to error or manifestly evil. e warrna a Charles Pickney urged ing power be confided to the Senate alone, while Pierce Butler urged that the power be vested in the President. James Madison and Elbridge Gerry then jointly moved to substitute the word "dec:are" for the word "make," "leaving to the President the power to repel sudden at- tacks." John Sherman expressed a pref- erence to "make" as opposed to "de- clare," because the latter was too narrow a grant of power. However, he expressed the view that the grant of power to Con- gress to "make" war would nonetheless permit the President to repel attack, al- though not to commence war. Gera' and George Mason opposed the giving of the power to declare war to the President. Refus King supported the substitution of the word "declare," urging that the word "make" might be understood to.. mean "conduct" war, which later was a presidential function. With only New Hampshire dissenting, it was agreed that the grant to Congress should be of the power to declare war. Pinckney's motion to strike out the whole clause, and thereby presumably to leave the way open to vest the entire warmaking power in the President, was then defeated by a voice vote. The Framers of the Constitution, in making this division of authorit:,' be- tween the executive and the legislative branches, did not make a detailed al- location of authority between the two branches. But nearly 200 years of prac- tice has given rise to a number of prece- dents and usages, although it cannot be confidently said that any sharp I".ne of demarcation exists as a result of this history. RECOGNITION OF ARMED CONFLICT SHORT OF "WAR" Out country, however, has had the Before turning to historical practice blessing of a sound constitutional frame- for the light which it-throws upon the work which has given full opportunity for proper interpretation of the President's good'to prosper, has given room for power, let me first dispel any notio::t that error' to be discovered and has never the United States may lawfully engage Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July 20, 1973 Approved For CONGRESSIONAL6RECORD - E NATE 000700090010-9 limited use of this Nation's Armed Forces against those of France. The fifth Con- gress, 1 Statute 578. In the 'liza, a case arising out of this "undeclared war," the Supreme Court described differences between war and other armed conflicts as being differ- ences between "solemn war" and "im- perfect war:" If it be declared in form, it is called solemn, and is of the perfect kind: because one whole nation declaring war are au- thorized to commit hostilities against all the members of the other, in every place and under every circumstance. In such a war, all the members act under a general au- thority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations, more confined in its nature and extent; being limited as to places, persons and things; and this is more properly termed imperfect war; because not solemn, and be- cause those who are authorized to commit hostilities act under special authority and can go no further than to the extent of their commission. The Eliza, 4 Dall. 37, 40-41. (NoTE.-In that case, a French privateer took possession of an American ship that was later recaptured by Americans who claimed entitlement to payment from the ship's owners. The questions arose in inter- pretation of two statutes as to what they were entitled to. To answer that question, the Court had to decide whether we were at war with France.) While the Court termed both forms of military action "war," the distinction which it drew likewise separates the de- clared wars of the 20th century, such as the two World Wars, and the undeclared armed conflicts such as have more re- cently occurred in Korea and in South- east Asia. In both of the two World Wars, the declarations of war were viewed by the executive branch to authorize com- plete subjugation of the enemy, and some form of "unconditional surrender" on the part of the enemy was the an- nounced goal of the allied nations. In Korea and Vietnam, on the other hand, the goals have been the far more limited ones of the maintenance of territorial integrity and of the right. of self- determination. As has been pointed out many times, the United States throughout its history has been involved in armed conflicts short of declared war, from the unde- clared war with France in 1798-1800 to Vietnam. I will discuss the more signifi- cant of these involvements later. THE PRESIDENT AS COMMANDER IN CHIEF Because of the nature of the Presi- dent's power as Commander in Chief and because of the fact that it is frequently exercised in foreign affairs, there are few 'judicial precedents dealing with the sub- ject. Such judicial learning as there is on the subject, however, makes it rea- sonably clear that the designation of the President as Commander in Chief of the Armed Forces is a substantive grant of power, and not merely a commission which treats him as a Supreme Commander. Chief Justice Marshall, writing for the Supreme Court in Little v. Barreme (2 Cr. 170) concluded that the seizure of a ship on the high seas had not been authorized by an act of Congress, in the course of the opinion, he stated: It is by no means clear that the President of the United States, whose high duty it is to take care that the laws be faithfully executed, and who is commander in chief of the Armies and Navies of the United States, might not, without any special au- thority for that purpose, in the then existing State of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit com- merce, 2 Cranch at 177. Justice Grier, speaking for the Supreme Court in its famous decision in the Prize cases, likewise viewed the Pres- ident's designation as Commander in Chief as being a substantive source of authority on which he might rely in put- ting down rebellion: Whether the President in fulfilling his duties, as Commander in Chief, in sup- pressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, in a question to be decided by him, and this court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. He must determine what degree of forces the crisis demands. 2 Black 625, 670. More recently, Justice Jackson, con- curring in Youngstown Sheet and Tube Co. against Sawyer, said: We should not use this occasion to circum- scribe, much less to contract, the lawful role of the President as Commander In-Chief. I should indulge the widest latitude of inter- pretation to sustain his exclusive function to command the instruments of national force, at least when turned against the out- side world for the security of our society, 343 U.S. 579, at 645. The limits of the President's power as Commander in Chief are nowhere de- fined in the Constitution, except by way o. negative implication from the fact that the power to declare war is com- mitted to Congress. However, as a result of numerous occurrences in the history of the Republic, more light has been thrown on the scope of this power. SCOPE OF POWER AS COMMANDER IN CHIEF The questions of how far the Chief Executive may go without congressional authorization in- committing American military forces to armed conflict, or in deploying them outside of the United States and in conducting armed conflict already authorized by Congress, have arisen repeatedly through the Nation's history. The President has asserted and exercised at least three different varieties of authority under the power as Com- mander in Chief; First, authority to commit military forces of the United States to armed. conflict, at least in response to enemy attack or to protect the lives of Ameri- can troops in the field. I might add that this is precisely the type of authority we are talking about today, with reference to the Church- Cooper resolution. Second, authority to deploy U.S. troops throughout the world, both to ful- fill U.S. treaty obligations and to pro- tect American interests; and Third, authority to conduct or carry on armed conflict once it is instituted, S 14221 by making and carrying out the neces- sary strategic and tactical decisions in connection with such conflict. Congress has on some of these occa- sions acquiesced in the President's ac- tion without formal ratification; on others, it has ratified the President's action; and on still others, it has taken no action at all. On several occasions, individual Members of Congress have protested presidential use of the Armed Forces. At the close of the Mexican War, the House of Representatives went so far as to pass an amendment to a pend- ing resolution, labeling the war as un- necessary and unconstitutional. On final passage, the amendment was de- leted. Although the President's actions, to which there was no opportunity for the Congress to effectively object, cannot establish a constitutional precedent in the same manner as it would be estab- lished by an authoritative judicial deci- sion, a long continued practice on the part of the President, acquiesced in by the Congress, is itself some evidence of the existence of constitutional authority to support such a practice. United States v. Midwest Oil Co., 236 U.S. 459. As stated by Justice Frankfurter in his con- curring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610: The Constitution is a framework for Gov- ernment. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the constitution or legislation? but they give meaning to the words of a text or supply them. COMMITMENT OF MILITARY FORCES TO ARMED CONFLICT WITHOUT CONGRESSIONAL AUTHOR- IZATION President Jefferson in 1801 sent a small squadron of American naval ves- sels into the Mediterranean to protect U.S. commerce against threatened at- tack by the Barbary pirates of Tripoli. In his message to Congress discussing his action, Jefferson took the view that it would require congressional authori- zation for this squadron to assume an offensive, rather than a defensive, stance. In May 1845 President Polk ordered military forces to the coasts of Mexico and to the western frontier of Texas- still at that time an independent repub- lic-in order to prevent an interference by Mexico with the proposed annexation of Texas to the United States. Following annexation, Polk ordered Gen. Zachary Taylor to march from the Neuces River, which Mexico claimed was the southern border of Texas, to the Rio Grande River, which Texas claimed was the southern boundary of Texas. While so engaged, Taylor's forces encountered Mexican troops, and hostilities between the two nations commenced on April 25, 1846. While Polk, 21/2 weeks later re- quested a declaration of war from Con- gress, there had been no prior authoriza- tion for Taylor's march south of the Neuces. In 1854 President Pierce approved the action of a naval officer who bombarded Greytown, Nicaragua, in retaliation against a revolutionary government that refused to make reparation for damage and violence to U.S. citizens. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -SENATE July 20, 1973. In April 1861 President Lincoln called following the collapse of the South Ko- for 75,000 volunteers to suppress the re- rean army. Ultimately, the number of bellion by the Southern States, and pro- troops engaged in the Korean conflict claimed a blockade of the fnfederacy. reached, 250,000, and the conflict lasted The Supreme Court in the prize cases, more than 3 years. President Truman's 2 Black 635-1863--.upheld the action action without congressional authoriza- taken by President Lincoln prior to their tion precipitated the "Great Debate" in later ratification by Congress in July, - Congress which raged from January to 1861, saying: April 1951. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bocaid to accept the challenge without waiting for any spe- cial legislative authority. 2 Black at 668. In 1900 President McKinley sent an expedition of 5,000 U.S.troom as a com- ponent of an international fbrce during the Boxer Rebellion In China.While Con- gress recognized the existence of the con- flict by providing for combat pay, 31 Statute 903, it neither declared war nor formally ratified the President's action. A Federal court, however, reiterated the early recognition of limited or unde- clared war: In the present case, at no time was there any formal declaration of war b X the political department of this Government against either the Government of China or the "box- er" element of that governemnt. A formal declaration of war, however, is unnecessary to constitute a condition of war. Hamilton V. McClnughry, 136 F. 445, 449 (cir. Ct.D. Kan. 1905). Presidents Theodore Roosevelt, Taft, and Wilson on more than c ie occasion committed American troops abroad to protect American interests. In November 1903, President Roosevelt ordered the U.S. Navy to guard the Panama area and prevent Colombian trots from be- ing landed to suppress the Panamanian insurrection against Colombia. In this annual report to Congress in 1912, Presi- dent Taft reported sending some 2,000 marines to Nicaragua-at the request of the President of Nicaragua-and the use of warships and troops in Culp.. He mere- ly advised Congress of these actions with- out requesting any, statutory authori- zation. President Wilson on two separate oc- casions committed American Armed Forces to hostile actions in Mexican ter- ritory. In. April 1914, he directed a force of sailors and marines to occupy the city of Vera. Cruz during the revolution in that country. The city was seized and occupied for 7 months without congres- sional authorization. In 1916 Wilson or- dered General Pershing and more than 10,000 troops to pursue Pancho Villa into Mexican territory following the latter's raid on Columbus, N. Mex. The most recent example of Presiden- tial combat use of American Armed Forces without congressional declaration of war, prior to the Vietnam conflict, was. President Truman's intervention in the Korean conflict. Following-invasion of South Korea by North Koreans on June 25, 1950, and a request for aid by the U.N. security council, President Truman ordered U.S. air and sea forces to give South Korean troops cover and support. He ordered the 7th Fleet to--guard For- mosa. On June 30, the President an- nounced that he had authorized the use of U.S. ground forces in the Korean war While President Truman relied upon the U.N. Charter, as well as his power as Commander in Chief, his fiction stands as a precedent for presidential action in committing U.S. armed forces to ex- tensive ;hostilities without formal dec- laration of war by Congress. The U.N. Charter, as a result of its ratification by the Senate, has the status of a treaty, but it does not by virtue of this fact override any provisions of the Constitution. Though treaties made in pursuance of the Constitution may un- der the supremacy clause override spec- ific constitutional limitations. Geofroy v. Riggs, 133 U.S. 258; Reid v. Covert, 3111 U.S. 481. If a congressional declaration of war 'would be required in other cir- cumstances to commit U.S. forces to hostilities similar in extent and nature to those undertaken in Korea, the rati- fication' of the U.N. Charter would not obviate 'a like requirement in the case of the Korean conflict. While the issue of presidential power which was the sub- ject of the.great debate in Congress was never authoritatively resolved, it is clear that Congress acquiesced in President Truman's intervention in Korea. See Rees, "The Limited War"-1964; Pusey, "The Way We Go To War"-1969. DEPLOYMENT OF U.s: TROOPS THROUGHOUT THE WORLD In February 1917, President Wilson requested congressional authority to arm American merchant vessels. When that authority failed of passage in Congress as a result of a filibuster or extended debate, ! Wilson proceeded to arm them without congressional authority, stating that he' was relying on his authority as Commander in Chief. Near the close of the First World War, President Wilson announced a decision to send American troops to Siberia. The troops so sent remained for over a year, their withdrawal beginning in January 1920. There was no congressional au- thorization of such disposition of troops, and the United States had not declared war on Russia. In 1941, prior to Pearl Harbor, Presi- dent Roosevelt utilized his power as Com- mander in Chief to undertake a series of actions short of war, designed to aid the Allied f~' rtes in the Second World War. On Aprl 9, 1941, he made an agreement with the Danish Minister for the occu- pation 01f Greenland by American forces. In May 1941, Roosevelt issued a proc- lamation declaring unlimited national emergency, and he ordered American naval craft to sink on sight foreign sub- marines found in the defensive waters of the United States. In July 1941, the President announced that U.$. Forces would occupy Iceland in order to relieve British forces there, and that the Navy would perform convoy duty for supplies being sent to Great Britain under lend-lease. In September 1941, Roosevelt stated that he had gi'.ren orders to the U.S. Army and Navy to strike first at any German or Italian ves- sels of war in American "defensive wa- ters;" the following month, he decided to carry 20,000 British troops from Hall tax to the Middle East in American trans- ports. President Truman's decision in 195:. to sent four U.S. divisions to Europe in di:;- charge of the Nation's NATO commit- ment occasioned prolonged debate in Congress over his powers to take such action without congressional approval. Congress ultimately acquiesed _ in the- President's action without actually re- solving the question, and all of President Truman's successors have asserted and exercised similar authority. AUTHORITY TO CONDUCT... OR CARRY ON ARMED CONFLICT ONCE IT HAS BEEN LAWFULLY IN- STITUTED It has never been doubted that the President's power as Commander in Chief authorizes him, and him alone, to con- duct armed hostilities which have been lawfully instituted. Chief Justice Chase, concurring in ex parte Milligan, 4 Viail. 2, at 139, said: Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to pro- vide by law for carrying on war. This power necessarily extends to all legislation esser.tial to the prosecution of war with vigor and suc- cess, except such as interferes with the c 3m- mand of the forces and conduct of cam- paigns. That power and duty belong to the President as Commander in Chief. In the First World War,, it was neces- sary to decide whether U.S. troops in France would fight as a separate com- mand under General Pershing, or whether U.S. divisions should be incorpo- rated in existing groups or armies com- manded by French or British genex als. President Wilson and his military ad- visers decided that U.S. forces would fight as a separate command. In the Second World War, not only similar military decisions on a global scale were required, but also decisions that partook as much of political strat- egy as they did of military strategy. Should the United States concentrate its military and material resources on either the Atlantic or Pacific front:; to the exclusion of the other, or should it pursue the war on both fronts simul- taneously? Where should the reconquest of allied territories in Europe and Africa which had been captured by the Axis powers begin? What should be the goal of the Allied powers? Those who lived through the Second World War will re- call without difficulty, and without the necessity of consulting works of hist)ry, that this sort of decision was reached by the allied commanders in chief, and chief executive officers of the allied na- tions, without--on the part of the Un.ted States-any formal congressional parti- cipation. The series of conferences at- tended, by President Roosevelt araind the world-at Quebec, Cairo, Casablanca, Tehran, Yalta, and by President Truman at Potsdam, ultimately established the allied goals in fighting the Second World War, including the demand for uncon- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Jul? 2D, 1973 Approved Fclf( 5gf)8 y/0fkp 7?@Qg R000700090010-9 dftional surrender on the part of the Axis nations. Similar strategic and tactical decisions were involved in the undeclared Korean war under President Truman. Ques- tions such as whether U.S. forces should not merely defend South Korean terri- tory, but pursue North Korean forces by invading North Korea, and as to whether American Air Force planes should pursue North Korean and Chinese Communist planes north of the Yalu River, separat- ing Red China from North Korea, were of course made by the President as Com- mander in Chief without any formal con- gressional participation. It is clear that the President, under his power as Commander in Chief, is au- thorized to commit American forces in such a way as to seriously risk hostilities, and also to actually commit them to such hostilities, without prior congressional approval. However, if the contours of the divided war power contemplated by the framers of the Constitution are to, re- main, constitutional practice must in- clude presidential resort to Congress in order to obtain its sanction for the con- duct of hostilities which reach a certain scale. Constitutional practice also indi- cates, however, that congressional sanc- tion need not be in the form of a declara- tion of war. In the case of the Mexican War, which was brought about, if not initiated, by President Polk, he requested and ob- tained a declaration of war. Congress, meeting in 1861 pursuant to the call of President Lincoln, ratified all of the ac- tions he had taken on his own initiative, and apparently refrained from declaring war on the Confederate States only be- cause it did not wish to recognize them as a sovereign nation. However, the Fifth Congress author- ized President Adams to take certain military action against France without going so far as to declare war. More re- cently, in connection with President Eis- enhower's landing of troops in Lebanon and with the Cuban missile crisis in 1962, Congress has given advance authoriza- tion for military action by the President without declaring war-71 Stat. 5 76 Stat. 697. The notion that such advance author- ization by Congress for military opera- tions constitutes some sort of an invalid delegation of congressional war power simply will not stand analysis. A decla- ration of war by Congress, is, in effect, a blank check to the Executive to conduct military operations to bring about sub- jugation of the nation against whom war has been declared. The idea that while Congress may do this, it may not delegate a lesser amount of authority to conduct military operations, as was done in the instances referred to above, is utterly illogical and unsupported by precedent. While cases such as Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), hold that Congress in delegating powers to deal with. domestic affairs must establish standards for administrative guidance, no such principle obtains in the field of foreign affairs. The Supreme Court in United States v. Curtiss-Wright Corp., 299 U.S. 304, made this distinction clear. What must be regarded as the high- water mark of Executive action without express congressional approval is, of course, the Korean war. Although Con- gress never expressly sanctioned the President's action in committing U.S. forces by the hundreds of thousands to the Korean conflict, it repeatedly voted authorizations and appropriations to arm and equip the American troops. This is not to say that such appropria- tions are invariably the equivalent of express congressional approval; the de- cision as to whether limited hostilities, commenced by the Executive, should be sanctioned by Congress may be one quite different from the decision as to whether American troops already "committed and engaged in such hostilities shall be equipped and supplied. CONGRESSIONAL POWER TO RESTRICT THE PRESIDENT While the President may commit Armed Forces of the United States to hostile conflict without congressional authorization under his constitutional power as Commander in Chief, his au- thority exercised in conformity with congressional authorization or ratifica- tion of his acts is obviously broader than if it stood alone. By the same token, Congress undoubtedly has the power in certain situations to restrict the Presi- dent's power as Commander in Chief to a narrower scope than it would have had in the absence of legislation. Chief Jus- tice Marshall strongly intimates in his opinion in Little v. Barreme, 2 Cranch. 1970 (1804), that the Executive action directing the seizure of a ship on the high seas would have been valid had not Congress enacted legislation restricting the circumstances under which such a seizure was authorized. Congress, exer- cising its constitutional authority to "make rules concerning captures on land and water" may thus constrict the Pres- ident's power to direct the manner of proceeding with such captures. Congress has similarly sought to re- strain the authority of the President in the exercise of its power to "raise and support armies." In the Selective Serv- ice and Training Act of 1940, it was pro- vided that: Persons inducted into the land forces of the United States under this act shall not be employed beyond the limits of the Western Hemisphere except in the territories and pos- sessions of the United States, including the Philippine Islands. b4 Stat. 885. In the year following enactment of this law, President Roosevelt determined to send U.S. troops, including draftees, to Iceland in order to relieve British troops garrisoned there. He chose to strain geography, rather than the law and ob- tained the opinion of what was apparent- ly a minority-view geographer that Ice- land was actually in the Western Hemis- phere. On December 15, 1969, Congress adopt- ed an amendment to the Defense Appro- priations bill H.R. 15090 providing that U.S. Forces shall not be dispatched to Laos or Thailand in connection with the Vietnam conflict. It supported this pro- vision offered by the Senator from Idaho as a reasonable exercise of congressional authority. S 14223 This Is not to say, however, that every conceivable condition or restriction which Congress may by legislation seek to im- pose on the use of American military forces would be free of constitutional doubt. Even in the area of domestic af- fairs where the relationship between Congress and the President is balanced differently than it is in the field of exter- nal affairs, virtually every President since Woodrow Wilson has had occasion to object to certain conditions in authoriza- tion legislation as being violative of the separation of powers between,the execu- tive and the legislative. branch. The prob- lem would be compounded should Con- gress attempt by detailed instructions as to the use of American forces already in the field to supersede the President as Commander in Chief of the Armed Forces. Surely this is the thrust of Chief Justice Chase's concurring opinion in ex parte Milligan, quoted earlier. [Congressional Power] necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns. That power and duty belong to the President as Commander in Chief. 4 Wall. at 139. THE VIETNAM CONFLICT The duration of the Vietnam conflict and its requirements in terms of both men and materiel would have raised the most serious sort of constitutional ques- tion, had there been no congressional sanction of that conflict. However, as is well known, the conflict formally began following an attack on U.S. naval forces in the Gulf of Tonkin in August 1964. At that time, President Johnson took direct air action against the North Vietnamese, and he also requested Congress "to join in affirming the national determination that all such attacks will be met" and asked for "a resolution expressing that support of the Congress for all necessary action to protect our Armed Forces and to assist Nations covered by the SEATO treaty." On August 10, 1964, Congress passed the so-called Gulf of Tonkin resolution. In connection with this resolution, Con- gress noted that whatever the limits of the President's authority acting alone might be, whenever Congress and the President act together, "there can be no doubt" of the constitutional authority. Since that time, Congress repeatedly adopted legislation recognizing the situ- ation in Southeast Asia, providing the funds to carry out U.S. commitments there, and providing special benefits for troops stationed there. By virtue of these acts, and the Gulf of Tonkin resolution, there was longstanding congressional recognition of a continuing U.S. com- mitment in Southeast Asia. This recog- nition and ratification of the President's policies continued even after the Ton- kin Gulf resolution was repealed in 1970. While seeking a negotiated peace and furthering "Vietnamization," President Nixon continued to maintain U.S. troops in the field in South Vietnam. The legal- ity of the maintenance of these troops in South Vietnam, and their use to render assistance to the South Vietnam- ese troops in repelling aggression from the Vietcong and the North Vietnam- Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14224 Approved For R3 M % ~LC,&&5B0g3 JNR0700090010-9 July` 20, 1973 ese, would have been subject to doubt only if congressional sanction of hostili- ties commenced on the initiative of the President could be manifested solely by a formal declaration of war. But the numerous historfeal precedents previ- ously cited militate against such reason- ing. A requirement that congressional ap- proval of Presidential action in this field can come only through a declaration of war is not only contrary to historic con- stitutional usage, but as a practical mat- ter would curtail effective congressional participation in the exercise of the shared war power. If Congress may sanction armed engagement of U.B. forces only by declaring war, the possi- bility of its retaining a larger degree of control through a more limited approval is foreclosed. While in terms of men and materiel the Vietnam conflict was one of large scale, the objectives for which the conflict was carried on were by no means as extensive or all-inclusive as would have resulted from a declaration of war by Congress. Conversely, however, there was not the slightest doubt from an examination of the language of the Gulf of Tonkin resolution that Congress expressly au- thorized extensive military involvement by the United States. To reason that if the caption "Declaration of War" had appeared at the top of the resolution, that involvement would have been per- missible, but that the identical language without such a caption did not give effective congressional sanction, would be to treat this most nebulous and ill- defined of all areas of the law as if it were a problem in common law pleading. Mr. Justice Grier, more than a century ago, in the prize cases said; This greatest of civil ware was not grad- ually developed by popular commotion, tumultuous assemblies or local unorganized insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Con- gress to baptise it with a name; and no name given to it by him or them could change the fact. If substance prevailed over form in establishing the right of the Federal Government to fight the Civil War in 1861, substance should equally prevail over form in recognizing congressional sanction for the Vietnam conflict by the Gulf of Tonkin resolution, even though it was not in name or by its terms a formal declaration of war. SEPARATE AND SHARED AUTHORITY Mr. President, I believe the foregoing discussion indicates that a significant body of practice, precedent and tradi- tion has grown up surrounding the war powers of this country. It shows that the President is charged with real responsi- bilities in major areas where he and he alone must make decisions and choices. It also shows that the Congress, too, has a proper, legitimate role to play with its own unique and separate authority. There are some clear lines of demarca- tion and firm divisions of authority. Of course, the Congress cannot and should not become involved in the tactics and strategy required to carry out na- tional defense policy. And at the same time the President cannot and should not seek to determine that national defense policy solely on his own initiative. But between these firm and clear areas there is room and a real need for shared decisfsonmaking and joint leadership. And in My view the War Powers Act before the Senate today is a responsible and necessary attempt to serve the national interest by harmonizing the roles of the legislative and executive branches in the exercise of the war power. PREVIOUS SUPPORT FOR WAR POWERS ACC When this measure was first intro- duced in the 91st Congress in 1970. I joined in sponsoring it. At that time I felt it was a proper and useful attempt by Congress to cast some light in a murky and misunderstood constitutional area. It was reintroduced in the 92d Con- gress1 in 1971; however, at that time, we were', in the midst of the Vietnamization program, efforts were continuing to reach a negotiated settlement to the Vietnam conflict, and we were still unable to se- cure !information about or the return of our prisoners of war and missing in ac- tion. `CONCERN FOR MISCONSTRUCTION OF CONGRESSIONAL ACTION At; that time I felt a genuine concern that an entirely appropriate and useful exercise of the Congress powers in at- tempting to define the lines of consti- tutional authority might be misconstrued by the opposite side at the Paris negoti- ations, and thus endanger the prospects for achieving a negotiated peace and the earliest possible end to the conflict in Southeast Asia. Therefore, I did not re- join my colleagues in sponsoring this legisl~tion at that time. Happily, the Vietnam war is now be- hind us. American forces have been with- drawn. Our prisoners are home. The Paris agreements establish our rights to information on the missing. And there is a real prospect that the Vietnamese parts s will be able to arrive at a peaceful deter 'nation of their future course. On August 15, barring further congressional authorization, the bombing in Cambodia will stop. CONCLUSION This is a unique moment in our his- tory, and it is an appropriate interval for Congress to assert its authority in a proper, constructive, and worthwhile manner. The War Powers Act will establish a part ership between the Congress and the Presidency in exercising the awe- some; responsibility of employing this Nation's military might. It should serve to stimulate broader communication be- tween the legislative and executive branches. And in so doing it will serve as a strong unifying influence in a nation which in recent years has too frequently been strained by forces of division, dis- cord, 'and mistrust between the branches of Government, between groups and among individuals. I an pleased to support this legisla- tion and believe its passage will mark a proud and hopeful day in the constitu- tional history of the United States. SOUTHEAST ASIA R$$OLUTION 1 Whereas naval units of the Communist re- gime in Vietnam, in violation of the princi- ples of the Charter of the United Naticns and of international law, have deliberately and repeatedly attacked United States naval ves- sels lawfully present in international seaters, and have thereby created a serious threat to international peace; and Whereas these attacks are part of a d eliber- ate and systematic campaign of aggression that the Communist regime in North Viet- nam has been waging against its neighbors and the nations joined with them in the cal- lective defense of their freedom; and Whereas the United States is assisting the peoples of southeast Asia to protect; their freedom and has no territorial, military or political ambitions in that area, but desires only that these peoples should be eft in peace to work out their own destinies is their own way: Now, therefore, be it Resolved by the Senate and House c f Rep.. resentatives of the United States of America in Congress assembled, That the Congress approves and supports the.determinal,ion of the President, as Commander in Chief, to take all necessary measures to repetl any armed attack against the forces of the United States and to prevent further aggression. SEC. 2. The United States regards as vital to its national interest and to world peace the maintenance'of"international pease and security in southeast Asia; Consoonanl with the Constitution of the United Stabis and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Trelr,ty re- questing assistance in defense of its freedom SEC. 3. This resolution shall expire when the President shall determine that the peace and security of the area is reasonatly as- sured by international conditions created by action of the United Nations or otherwise, except that it may be terminated earl ter by concurrent resolution of the Congress, SENATOR RANDOLPH RECALLS MISLEADING STATE- MENTS DURING DEBATE ON WAR POWEI.S BILL IN 1942 Mr. RANDOLPH. Mr. President-- Our people want authentic information. They know not what to believe. These words are certainly relevant in the context of today's discussion of S. 440 and in light of the fact that ad- ministration officials in 1971 and 1973 falsified reports to the Senate ..rmed Services Committee of bombing opera- tions in Cambodia. I initially made that statement on February 28, 1942, in the House of Rep- resentatives during debate on House Joint Resolution 89 of the 76th Congress This measure, sponsored by Represenl;ative Ludlow and Senator Capper, gave Con- gress the initial decisionmaking to take the power of declaring war "to the peo- ple of the United States," except in a case of an invasion of our country or ter- ritorial possessions by a military expedi- tion. I cosponsored this war referendum bill in 1939 and 84 years later r urge passage of S. 440, the War Powers Act of 1973. I quote Senator JAVITS: 1 Text of Public Law 88-408 ,[H.J Its. 11451, 78 Stat. 384, approved Aug. 10, 1984. Department of State Bulletin, Aug. 24, 1964, pp. 272-274. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 JulyD, 01973 Approved ForEWA9W/ OGEP7RfOJR000700090010-9 S 14225 'And when the President's authority is so defined, as it will be if the War Powers Act becomes law, then the issue of authority is determined in an authoritative way, and, I have little doubt, will be carried out to the best of his ability in good faith by any American President. I strongly . support this historic and necessary legislation. Mr. President, I ask unanimous consent that my remarks and colloquy with other members, on the War Powers Act of 1942, be printed in the RECORD. There being no objection, the excerpt from the CONGRESSIONAL RECORD was or- dered to be printed in the RECORD as fol- lows: Mr. Chairman, I rise at this time during debate on the pending war-powers bill not because what I shall say particularizes on any point which we are now discussing, but because I desire to call attention to what I believe is a very unfortunate and unnecessary situation. There are far too many announcements be- ing made by our Departments of War and Navy to the American people and to the world which are contradictory and give rise to un- easiness among our citizens and encourage our enemies. I recognize full well that carp- ing criticism of the war effort is undesirable. I would never add my voice to such proce- dure. In my opinion, however, when a Mem- ber of this Congress has a deep feeling re- garding our war effort and believes that out of honest discussion there can come truth and light, that Member must never hesitate to make his views known. Thought-provoking criticism, based on a genuine conviction, must be welcomed in this House, rather than discouraged. I direct your attention to the fact that 3 day= ago the Secretary of the Navy announced that the reported attack on the west coast was false and that there were no enemy air- craft approaching from the ocean over Cali- fornia. Less than 24 hours later the Secretary of War made an announcement that the alarm was real. Within a few hours we have the Secretary of the Navy saying the reported raid was false and the Secretary of War say- ing the supposed attack was real. What are we to believe? It is inconceivable that we con- tinue to have such stories circulated from of- ficial sources. If we are to have clear thinking on tae part of the American people in regard in the prosecution of this war, it must stem from the military authorities themselves. How we can expect other than confusion among the patriotic citizens of the United States when such opposing announcements as this are made is beyond my honest comprehension. There are these of us who have advocated for many, many years that we should haveJn this country one supreme command and un- der that command separate authorities for the Army, the Navy, and the Air Force. How- ever, we have been denied even the oppor- tunity to have such legislation heard before the committees of this Congress. I do not wish to discuss that question this afternoon. I have taken time to direct attention of the Congress on previous occasions to failure of our committees- to hear discussed in an in- formative and straight-forward manner such proposals which have been made by the Mem- bers of this body. Mr. REED of New York. Mr. Chairman, will the gentleman yield? Mr. RANDOLPH. I yield to - the gentleman from New York. Mr. REED of New York. I do not know what the experience of the gentleman or of my colleagues has been, but I am receiving let- ters wanting to know if this statement or that statement made by different officials is true, and I am not In a position to tell these people what the truth is. Mr. RANDOLPH. Of course not. Our people want authentic information. They know not what to believe. For the Secretary of the Navy to say one day that the trouble on the west coast was false and for the Secretary of War to say the next day that it was real is ab- solutely indefensible. Mr. Vooasrs of California. Mr. Chairman, will the gentleman yield? Mr. RANDOLPH. I yield to the gentleman from California. Mr. VOORHIS of California. What concerns me about this matter is the people of our section. . Mr. RANDOLPH. Certainly, they are in the dark. Mr. VOORHIS of California. They were pretty fine throughout this whole business. All in the world they want is a simple statement upon which they feel they can absolutely rely. I am confident they are going to get that, and I think it is very important that they do get it. Mr. RANDOLPH. I thank the gentleman, and I join in the hope that a common ground on which we can stand can be soon found. The American people, if told the actual happen- ings, will always respond to the truth. They are not children. They are sober and under- standing men and women. Mr. HINSHAW. Mr. Chairman, will the gen- tleman yield? Mr. RANDOLPH. I yield to the gentleman from California. Mr. HINSHAW. In connection with the statement by the Secretary of War, may I- say that I was told on the following day by three different sources In the War Depart- ment, not by the Secretary, that they did not believe it was necessarily enemy planes that came over the Los Angeles area. Then the Secretary of War came out and refuted the statements made by representatives of his own. Department. Mr. RANDOLPH. I am sorry these divergent and misleading statements have been made. If they were rumors I would not discuss them, but I have checked and have found that they were given to the press by the Sec- retary of the Navy and the Secretary of War. I call on our Commander in Chief to stop this unwarranted situation. Mr. PELL. Mr. President, the power of .waging war is the power of life and death over every man, woman and child in this country. It is a power, therefore, that the U.S. Government can only ex- ercise with the greatest solemnity and care. It is for this reason that the fram- ers of the Constitution desired to insure that the collective judgment of both the Congress and the President should be brought to bear in decisions to engage U.S. forces in hostilities or situations leading to them, Any use of force by one country against another is war, regard- less of its size, or whether it is declared or undeclared. And in an age of nuclear weapons, the smallest war can escalate. to nuclear annihilation: In recent decades, this collective judg- ment called for by the Constitution has been increasingly imbalanced, with the Presidential input far outweighing the congressional. This disequilibrium has frustrated the intent of the drafters of the Constitution and embroiled the Na- tion in the longest, most devisive and agonizing war in our history. At an earlier stage, a statutory remedy might have been unnecessary, but we have passed that stage. Congressional action is now overdue. I have long ad- vocated such action in past legislation. I have decried congressional failure to take this action. Therefore, I now urge, more vigorously than ever, that this ac- tion be promptly taken by the passage of S. 440. Failure by the Congress to exert its constitutional authority in the exercise of national war powers would be a fail- ure to learn from the bitter experiences of the Indochina war. History may or may not show that the stand we took to resist North Vietnamese aggression in Indochina was the right one. But already it is abundantly clear that the way we choose to make that stand was a trag- ically mistaken one. It was a mistake shared by both Re- publican and Democratic administra- tions. The - source of the mistake is di- rectly attributable to an absence of con- gressional input into the military policies that guided-or rather misguided our war effort in Indochina. The result was that we slipped into a protracted, costly war through the back door-a door opened up not. by the people of the United States, not by their elected repre- sentatives in the Congress, but a door opened up primarily by the Pentagon. If from the beginning of our military involvement, the Congress had exercised its constitutional war powers, our inter- vention could well have been of quite a different nature and results. . There would have been congressional debate and public discussion of the necessity for intervention, so that if approved, the country would have had a clearer under- standing of its. purpose and objectives. But such was not the case. If there had been a better under- standing of the nature of the war, where the political factors outweighed the military ones, there would not have been the inappropriate massive military inter- vention pushed by the -Pentagon. If there had not been a massive de- ployment of forces using unsuitable sophisticated weapons and requiring an unwieldy infrastructure of bases and support facilities, our military presence would have had the mobility and nimble- ness needed to complete its mission. But the voice of Congress against the creation of a monstrous, lumbering, hamstrung war machine in Indochina could not be heard above the drumbeats of the Pentagon-a machine that dev- astated the countryside, that killed, maimed and alienated the people it should have protected and at the same time was incapable of dealing with an enemy as fluid as quicksilver. How tragic that such a voice was not heard. How many lives could have been - saved, military and civilian. How much destruction could have been spared, how much divisiveness at home and abroad could have been avoided. How much quicker and more successfully might we have obtained our objectives. If, how- ever, Vietnam taught us one thing-the categorical imperative for the voice of Congress in the process of deciding on and applying American military force, regardless of place, size or nature, then the sacrifices of Vietnam will not have been entirely in vain. Mr. MUSKIE. Mr. President, I ask for the yeas and nays on the passage of the bill. The yeas and nays were ordered. Mr. MUSKIE. Mr. President, I yield back all my remaining time. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14226 Approved For R R&1i5g1C)% C -I JSB% R%00700090010-9 J uf!y .20, 1973 Mr. GRIFFIN. I yield back the re- mainder of my time. The PRESIDING OFFICER. All re- maining time has been yielded back. The bill having been read the third time, the question is, Shall it pass? The yeas and nays have been ordered, and the clerk will call the roll. The assistant legislative clerk called the roll. Mr. ROBERT C. BYRD. I announce that the Senator from Arkansas (Mr. MCCLELLAN), the Senator from South Dakota (Mr. McGovERN) are necessarily absent. I also announce that the Senator from Mississippi (Mr. STENNIS) Is absent be- cause of illness. I further announce that, if present and voting, the Senator from Mississippi (Mr. STENNIS), and the Senator from South Dakota (Mr. MCGOVERN) would each vote "yea." Mr. GRIFFIN. I announce that the Senator from New Hampshire (Mr. COTTON) and the Senator from Arizona (Mr. GOLDWATER) are absent because of illness in their respective families. The Senator from Alaska (Mr. STE- VENS) is absent by leave of the Senate on account of illness in his family. The Senator from New York (Mr. BUCKLEY), the Senator from Colorado (Mr. DOMINICK), and the Senator from Illinois (Mr. PERCY) are necessarily ab- sent. The Senator from Virginia (Mr. SCOTT) is absent on official business. On this vote, the Senator from Illinois (Mr. PERCY) is paired with the Senator from Colorado (Mr. DOMINICK). If pres- ent and voting, the Senator from Illinois would vote "yea" and the Senator from Colorado would vote "nay." The result was announced-yeas 72, nays 18, as follows: (No. 312 Leg.j YEAS-72 Aiken Hart Nelson Allen Hartke Nunn Bayh Haskell Packwood Beall Hatfield Pastore Bentsen Hathaway Pearson Bible Hollings Pell Biden Huddleston Proxmire Brock Hughes Randolph Brooke Humphrey Ribicoff Burdick Inouye Both Byrd, Jackson Saxbe Harry F., Jr. Javits Schweiker Byrd, Robert C. Johnston Scott, Pa. Cannon Kennedy Sparkman Case Long Stafford Chiles Magnuson Stevenson Church Mansfield Symington Clark Mathias Taft Cook McGee Talmadge Cranston McIntyre Tunney Dole Metcalf Weicker Domenici Mondale Williams Eag] eton Montoya Young Fong Moss Fulbright Muskle NAYS-18 Abourezk . Eastland Hansen Baker Ervin Helms Bartlett Fannin Eruska Bellmon Gravel McClure Bennett Griffin Thurmond Curtis Gurney Tower NOT VOTING--10 Buckley McClellan Stennis Cotton McGovern Stevens Dominick Percy Goldwater Scott, Va. So !the bill (S. 440) was passed, as An act to make rules governing the use of the Armed Forces of the United States in the absence of a declaration of war by the Congress Be t enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SHORT TITLE SECTION 1. This Act may be cited as the "War Powers Act". PURPOSE AND POLICY SEc.,2. It is the purpose of this Act to ful- fill the intent of the framers of the Cion- stitutiin of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of the Armed Forces of the United States in hostilities, or in situations where mminent involvement in hostilities is clearly- Indicated by the circumstances, and to the continued use of such forces in hos- tilities or in such situations after they have peen Introduced in hostilities or in such situations. Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by this Constitu- tion in the Government of the United States, or in any department or officer thereof. At the same time, this Act is not intended to encroach upon the recognized powers of the President, as Commander In Chief and Chief Executive, to conduct hostilities authorized by the Congress, to respond to attacks or the imminent threat of attacks upon the United States,T.. including is territories and posses- sions, to repel attacks or forestall the im- minent threat of attacks against the Armed Forces of the United States, and, under prop- er circumstances, to rescue endangered cit- izens and nationals of the United States located in foreign countries. EMERGENCY USE OF THE ARMED FORCES SEC. 3. In the absence of a declaration of war by the Congress, the Armed Forces of the United States may be introduced in hostilities, or in situations where Imminent involvement in hostilities is clearly indi- cated by the circumstances only- (1) to repel an armed attack upon the United! States, its territories and possessions; to take necessary and appropriate retalitory actions in the event of such an attack: and to forestall the direct and imminent threat of such; an attack; (2) 1{o repel an armed attack against the Armed Forces of the United States located outside of the United States, its territories and possessions, and to forestall the direct and imminent threat of such an attack; (3) to protect while evacuating citizens and nationals of the United States, as rap- idly as!possible, from (A) any situation on the high seas involving a direct and immi- nent threat to the lives of such citizens and nationals, or (B) any country in which such citizens and nationals are present` with the express' or tacit consent of the government of such! country and are being subjected to a direct and imminent threat to their lives, either sponsored by such government or beyond! the power of such government to control; but the President shall make every effort to terminate such a threat without using the Armed Forces of the United States and shall, where possible, obtain the consent of the !government of such country before using the Armed Forces of the United States to protect citizens and nationals of the United States being evacuated from such country; or (4) phirstlant to specific statutory author- ization,; but authority to introduce the Armed Forces of the United-States in hnstDI- ties or in any such situation shall not ae in- ferred (A) from any provision of law here- after enacted, including any provision con- tained in any appropriation Act, unless such provision specifically authorizes the intro- duction of such Armed Forces in hostilities or in such situation and specifically exempts the introduction of such Armed Forces from compliance with the provisions of this Act, or (B) from any treaty hereafter rati- fied unless such treaty is implemented by legislation specifically authorizing the ;.ntro- duction of the Armed Forces of the United States in hostilities or in such situation and specifically exempting the introduction of such Armed Forces from compliance with the provisions of this Act. For purposes of this clause (4), "introduction of the Armed Forces of the United States" include the assignment of members of the Armed Forces of the Unit- ed States to command, coordinate, participate in the movement of, or accompany the reg- ular or irregular military farces of any for- eign country or government when such mili- tary forces are engaged, of there exists an imminent threat that such forces will be- come engaged, in hostilities. No treaty in force at the time of the enactment o:' this Act shall be construed as specific statutory authorization for, or a specific exemption permitting, the introduction of the Armed Forces of the United States in hostilities or in any such situation, within the meaning of this clause (4); and no provision of law in force at the time of the enactment oi' this Act shall be so construed unless such provi- sion specifically authorizes the introduction of such Awned Forces in hostilities or in any such situation. - REPORTS ' SEC. 4. The introduction of the Armed - Forces of the United Statesin hostilities, or in any situation where-imminent involvement in hostilities is clearly indicated by the cir- cumstances, under any of the conditiors de- scribed in section 3 of this Act shall be re- ported promptly in writing 'by the President to the Speaker of the House of Representa- tives and the -President of the Senate, to- gether with a full account of the circum- stances under which such Armed Forces were introduced in such-hostilities-or in such situ- ation, the estimated scope of such hostilities or situation, and the consistency of the intro- duction of such forces in such hostilities or situation with the provisioie of section 3 of this Act. Whenever Armed Forces of the United States are engaged in hostilities or In any such situation outside of the United States, its territories and possessions, the President shall, so long as such Armed Farces continue to be engaged in such hostilities or in such situation, report to the Congress peri- odically on the status of such hostilities or situation as well as the scope and expected dt,ation of such hostilities as situation, but in no event shall he report to the Congress less often than every six months. THIRTY-DAY AUTHORIZATION PERIOD SEC. 5. The use of the Armed Forces o:C the United States In hostilities, or in any situa- tion where imminent involvement in hostili- ties is clearly indicated by the circumstances, _ under any of the conditions described in section 3 of this Act shall not be sustained beyond thirty days from thedate of th,e in- troduction of such Armed Forces In hostities or in any such situation unless (1) the Presi- dent determines and certifies-to the Congress in writing that unavoidable rilitary necessity respecting the safety of Armed Forces oi' the United States engaged pursuant to section 3(1 ' l or 3(2) of this Act requires the con- tinued use of such Armed Farces in the course of bringing about a prompt disen- gagement from such hostilities; or (2) Con- gress is physically unable to meet as a result of an armed attack upon the United States; Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 July? 0,' 19 7,3 Approved ForC~g AJOCh f8 7~W 2, 8000700090010-9 S 14227 or (3) the continued use of such Armed Forces in such hostilities or in such situa- tion has been authorized in specific legisla- tion enacted for that purpose by the Con- gress and pursuant to the provisions thereof. TERMINATION WITHIN THIRTY-DAY PERIOD SEC. 6. The use of the Armed Forces of the United States in hostilities, or in any situa- tion where imminent involvement in hostil- ities is clearly indicated by the circum- stances, under any of the conditions de- scribed in section 3 of this Act may be ter- minated prior to the thirty-day period spe- cified in section 5 of this Act by an Act or joint resolution of Congress, except in a case where the President has determined and cer- tified to the Congress in writing that un- avoidable military necessity respecting the safety of Armed Forces of the United States engaged pursuant to section 3(1) or 3(2) of this Act requires the continued use of such Armed Forces in the course of bringing about a,prompt disengagement from such hostili- ties. CONGRESSIONAL PRIORITY PROVISIONS SEC. 7. (a) Any bill or joint resolution au- thorizing a continuation of the use of the Armed Forces of the United States in hostili- ties, or in any situation where imminent in- volvement in hostilities is clearly indicated by the circumstances, under any of the con- ditions described in section 3 of this Act, or any bill or joint resolution terminating the use of Armed Forces of the United States in hostilities, as provided in section 6 of this Act, shall, if sponsored or cosponsored by one- third of the Members of the House of Con- gress in which it is introduced, be consid- ered reported to the floor of such House no later than one day following its Introduction unless the Members of such House otherwise determine by yeas and nays. Any such bill or joint resolution, after having been passed by the House of Congress in which it originated, shall be considered reported to the floor of the other House of Congress within one day after it has been passed by the House in which it originated and sent to the other House, unless the Members of the other House shall otherwise determine by yeas and nays. (b) Any bill or joint resolution reported to the floor pursuant to subsection (a) or when placed directly on the calendar shall immediately, become the pending business of the House in which such bill or joint reso- lution is reported or placed directly'on the calendar, and shall be voted upon within three days after it has been reported or placed directly on the calendar, as the case may be, unless such House shall otherwise determine by yeas and nays. SEPARABILITY CLAUSE SEC. 8. If any provision of this Act or the application thereof to any person or circum- stance is held invalid, the remainder of the Act and the application of such provision to any other person or circumstance shall not be affected thereby. EFFECTIVE DATE AND APPLICABILITY SEC. 9. This Act shall take effect on the date of its enactment. Nothing in section 3(4) of this Act shall be construed to re- quire any further specific statutory authori- zation to permit members of the Armed Forces of the United States to participate jointly with members of the armed forces of one or more foreign countries in the head- quarters operations of high-level military commands which were established prior to the date of enactment of this Act and pur- suant to the United Nations Charter or any treaty ratified by the United States prior to such date. Mr. JAVITS. Mr. President, I move to reconsider the vote by which the bill was passed. Mr. MUSKIE. I move to lay that mo- tion on the table. The motion to lay on the table was agreed to. Mr. MUSKIE. Mr. President, I ask unanimous consent that the Senate pro- ceed to the consideration of Calendar No. 320, House Joint Resolution 542. The PRESIDING OFFICER. Without objection, it is so ordered. The Senate proceeded to consider the joint resolution (H.J. Res. 542) concern- ing the war powers of Congress and the President. Mr. MUSKIE. Mr. President, I move to strike all after the resolving clause of House Joint Resolution 542 and substi- tute therefor the text of S. 440, as amended and passed today. The PRESIDING OFFICER. The ques- tion is on agreeing to the motion of the Senator from Maine. The motion was agreed to. The PRESIDING OFFICER. The ques- tion is on the engrossment of the amend- ment and the third reading of the joint resolution. The amendment was ordered to be en- grossed and the joint resolution to be read a third time. The joint resolution (H.J. Res. 542) was read a third time and passed. Mr. JAVITS. Mr. President, I move to reconsider the vote by which the joint resolution was passed. Mr. MUSKIE. I move to lay that mo- tion on the table. The motion to lay on the table was agreed to. Mr. MUSKIE. Mr. President, I should like to take a moment to congratulate the distinguished Senator from New York (Mr. JAVITS) for one of the most master- ful pieces of legislative craftsmanship that it has been my pleasure and my privilege to be associated with. He has done an outstanding job in the service of the Senate and the country, and I con- gratulate him. Mr. JAVITS. Mr. President, If the Sen- ator will yield, I greatly appreciate the job Senator MUSKIE undertook, It re- quired him to absorb literally months of work and study, which I have done and others have done, including some very complicated legal questions and consti- tional questions. He simply astounded me with the skill and grasp he showed in connection with this bill. I am very grateful to him. The Senate has every reason to be grateful to him. He has done the Foreign Relations Committee proud. Mr. MUSKIE. I thank the Senator. Mr. JAVITS.' Mr. President, I wish to express my appreciation to a number of assistants of my own and of the Foreign Relations Committee, who rendered ex- traordinary help in respect to the bill. I would like to thank Peter Lakeland of my own staff, a former Foreign Serv- ice officer and a very gifted foreign policy assistant to me for some years, who did a monumental job, which any profes- sional would consider a life's work, in the preparation for this debate, the drafting of the committee report, and the re- search, all of which went with it. Then to Seth Tillman, who is one of the assistants to Senator FULBRIGHT, who had a big hand in drafting the commit- tee report, which I thought was a mag- niflcant document; and Mr. Tillman worked under the direction of Carl Marcy, the very honored and very much respected chief of staff of our committee, to whom I also wish to give every credit for bringing the matter to the floor and for the preparation on it. THE USE OF RECORDING DEVICES Mr. CURTIS. Mr. President, I wish to speak concerning the use of recording de- vices. This was brought to the attention of the Nation during the past week by the testimony given by a Senate com- mittee concerning records made by the White House in the last couple of years. There may be arguments pro or con con- cerning the wisdom of such recordings but it is important that first we clear up a few essential points. It is lawful for an individual to wire- tap his own telephone without notifying the other person on the line and without the use of a beeper. The statements made about the records in the White House revealed a practice which is not in violation of present law. It was not un- dertaken by the Nixon administration under the old law. The second point I would like to estab- lish is that similar recordings have been made in the White House under previous administrations. It is not a new practice at all. It has been widely used in the past and I will have something to say about that later. Much can be said in favor of recording conferences, conversations, and discussions. It makes for an accurate rec- ord. It prevents error taking the place of a history of the true facts. It avoids mis- understanding. It makes it possible for a followthrough after discussion in full conformity with what was said. I can recall a visit that I made to the White House early in the Nixon adminis- tration concerning rural development. There were one or two staff members in the room and they were very busy taking notes of everything that President Nixon or I said. I was delighted that they were making such a record. That particular discussion is reflected in the rural de- velopment program that is now in opera- tion. Important matters were talked about and the fact that a record was kept by the making of notes made it pos- sible for the President's wishes to be car- ried out. A record preserved by a record- ing would have saved time and may have been more accurate. I wanted to satisfy myself as to the practices by previous administrations concerning the recording of conversa- tions, conferences, and telephone calls. I 'had understood that the White House had collected evidence on this in the form of affidavits. I asked to see those affidavits. I did see them and I read them. One affidavit that I saw stated that the individual in 1968 was ordered to install a microphone in a small room located between the Oval office of the President and the office of Mr. Marvin Watson. The room, I understand, was used as a Presidential sitting room and used fre- quently by President Johnson for private meetings and the like. The affidavit went on to say that a listening device had been installed in the south wall of the room at the baseboard level. A tape recorder was installed in Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 S 14228 ~~~. y~ . ~.. C NGRESSIO Xi n -cm - `~ ----------- - Jul an office below this room gynd was man- ually controlled from a switch located under the shelf that supported a portable TV set. The affidavit stated that this equipment was removed at the end Gf the Johnson administrations. A second affidavit which, was shown me at my request reported that the indi- vidual knew that there Were in exist- ence between 1965 and 1969 facilities whereby the President or designated members of the White Hoi se staff could record telephone conversations by the simple act of pushing a button on the telephone or throwing a separate switch which would activate a recording device. The affidavit said that -either at the end of each day or when-the recording belt or tape was completed, the record- ing would be removed and presented to the secretary of the office concerned. Re- cordings were transcribed by secretaries in the White House staff as directed by the office in which the recorders were in- stalled. The affidavit said that recorders were installed or available on selected telephone lines in the office of the Pres- ident and the office of his appointment secretary. It said, in addition, the same capability was available at Camp David, the main ranch house at the L.R.J. Ranch In Texas, and the Presidential offices in the Federal Office Building in Austin, Tex. I recall one sentence that said: "These re- corders were not equipped with any warning devices." In addition, the affidavit stated that the conference table in the Cabinet Room at the White House contained hidden microphones which could be activated at the conference table. The individual stated in his affidavit that in January 1969, President Johnson personally di- rected him to remove all recording de- vices from the Cabinet Room and from all telephones. What I had said about tapping tele- phone conversations or conversations relates to a person wiretapping his own telephones, a telephone subject to his control. Tapping the wires of somebody else's telephone, of course; is something altogether different. Recently I ob- served in the news, Vice President AGNEW speaking of an experience he had In Santa Fe, N. Mex. I have the transcript of the news ac- count concerning this happening. I want to read from the transcript of the news- cast of Kurt Lohbeck given at 7:05 a.m. on June 28, 1973. Lohbeck said: Former New Mexico Governor David Cargo has stated that in 1968 while Spiro Agnew was visiting him at the Governor's Mansion in Santa Fe, he discovered all his private phone lines had been tapped. Cargo made the statement in light of denials by assistants to the late Presi- dent Johnson who said he never ordered Then followed the words of Gov. David Cargo of New Mexico who said: Governor, then Governor Agnew, and pres- ently Vice-President Agnew, had been our guest in Santa Fe prior to his campaign ap- pearance in New Mexico. In fact, at that time the Governor's office was bugged, the tele- phones were tapped, we called the ... both the FBI, we had contacted them, finally, We contacted the telephone company, they came in and. debugged the whole system, they were in fact bugged . . . and who installed them? We don't know ... we were unable to dis- cover it . but they were bugged, very definitely bugged, we had to install devices to shield it, we had to put exclusion sys- tems Into all of our phones. Lohbeek went on to say Cargo states the phone taps were not discovered until after'AGNEW left the Governor's Man- sion. The transcript of the broadcast of Lohbeek at 8:05 a.m. on June 28, 1973, said: Former New Mexico Gov. David Cargo has confirmed some reports orig- inating from the Watergate Investigat- ing Committee concerning taps on the phone conversations of SPIRO AGNEW, then candidate for Vice President in 1968. Cargo says he notified the FBI, who told him to contact the phone com- pany,11 which he did. The phone company then found numerous taps, and installed an exclusion system to prevent such wiretapping. Cargo says he told AGNEW of the taps, but at the time not much attention was given to them. Lohbeek went on to say reports in Washington indicate that the Johnson administration had ordered logs of AGNEW'S phone calls. Mr. President, the account of this re- cent lawful recording system used by the White House was presented by a Senate Committee as a part of the Watergate television program. I am sure that mil- lions ! of Americans got the idea that what took place in the White House was in violation of law. That was not the case at all. Can it be that anything is pre- sumed to be revelant to this investiga- tion if it can be used to damage the President? If f, committee of the Congress having jurisdiction believes that the present law should be changed with respect to plac- ing recording devices on one's own phone, they should advance such legislation for the consideration of the whole Congress. It is not right to portray lawful actions in a Way which leads the public to believe that they are in violation of the law. Mr. President, in 1969 I did uncover a case of wiretapping which was clearly unlawful. The offenders were some bureaucrats in the General Services Ad- ministration. The man whose telephone was tapped was a sightless young lawyer. He was involved in the handling of mat- ters concerning contract settlements. In- formation carried over his telephone could have been of great value to con- tractors and others. It is to the credit of Robert Kunzig, then Administrator of the General Serv- ices Administration, that he put a stop to the practice. Mr. President, if the committee con- ducting the Watergate hearings wishes to go into the question of wiretapping, they, should do so thoroughly. They should establish what the past practices are and, above all, they should investi- gate those wiretaps which are clearly unlawful, such as the wiretapping of Vice "President AGNEW and the wiretap- pingthat took place in the GSA back in 1969. Mr. President, I ask unanimous con- sent to have reprinted my statement of July 11, 1969, concerning wiretapping in the GSA. There being no objection, the state- ment was ordered to be printed in the RECORD, as follows: [From the CONGRESSIONAL RECORD, July 11, 19691 ILLEGAL ELECTRONIC EAVESDROPPING IN THE FEDERAL GOVERNMENT Mr. CURTIS. Mr. President, today I am going to disclose, with proof, the existence of illegal electronic eavesdropping in at least one large Government agency. There is,idded evidence that this same electronic snooping is going on in other agencies of the Federal Government. This malodorous practice started under the previous administration and was so wide- spread that it has been impossible to root out in the 6 months that the Nixon administra- tion has been in office. I hope my disclosures today will speed the process. I think it is a fair statement that a Fed- eral agency cannot, without notifying either employees or caller, listen in on telephone conversations where national security is not involved. To do so, I believe, is a violation of law. Seven States-California, Illinois, Mary- land, Massachusetts,-Nevada, New York, and Oregon-prohibit surreptitious eavesdrop- ping by mechanical or electronic device. Thirty-six States prohibit the specific type of eavesdropping known as wiretapping And Congress itself, in the enactment of title III of the Omnibus Crime Control and Safe Streets Act of, 1968, outlawed all wire- tapping and electronic eavesdropping other than that occurring within certain tightly drawn instances involving suspected or- ganized criminal activity or the national security. In cases involving suspected ;iyndi- eate crime, listening devices can be used only with court permission. Even In emergt,ncies, court permission must be 'obtained within 48 hours or the listening device and its use are illegal. Yet, I have here such a device, taken within the past few weeks from a telephone at a major Government agency; It was biought to. my attention by a Government official whose own telephone was being monitored il- legally. I have sworn affidavits from him re- counting the whole story. But for his honest courage we would know nothing of t:als il- legal activity. The agency in question Is the General Services Administration. I have already dis- cussed this case with Administrator Robert Kunzig of GSA. He Is entirely in agreement with me as to the illegality and lmprcpriety of such electronic eavesdropping. In fact, Mr. Kunzig, when he heard about the use of "snooper button" telephones and monitoring systems within GSA, was shocked. This was shortly after he became Ad:n.inis- trator. He at once-on May 6-issued orders forbidding this practice which is both ques- tionable as to ethics and illegal by law, Someone in GSA apparently did not feel compelled to abide by the Administrator's orders. I call attention to the fact that the actual discovery of the device I have here wa:, made over a month after Mr. Kunzig'a order pro- hibiting the use of what he termed "tele- phone monitoring." I further call attention to the fact that these devices were installed and in use prior to Mr. Kunzig's appointment as Administrator. What I intend to do today is recount for you the shameful story in as straightforward and factual a manner as possible. This Federal employee, awell-educated, re- sponsible, professional person and, inciden- tally, highly knowledgeable in the field of electronics, states that many months ago-- long before Mr. Kunzig took over under the Nixon administration-he became aware of "excessive electronic noise and a very slight decrease in power" on his telephone ltae. Mr. President, I have no personal lcnowl- edge of what this sort of thing means, Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 pprove or Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 12 7572 r, CONGRESSIONAL RECORD - HOUSE tion on the quantity of the substance to be mailed. The reported bill permits only the mailing of a sample not to exceed 1. ounce. On page 3, line 4: of the reported bill the language is as follows: "Notwithstanding any other provision of this title and notwithstanding any other pro- vision of law, a sample of any substance not to exceed one ounce in weight suspected of being a drug may be mailed by any parent," I think this language takes into ac- count fully what the gentleman has spoken about. Mr. ROUSSELOT. I thank the gentle- man for his explanation. Is the gentleman also convinced now that the legislation has so been tightened that the various research facilities that would. be used to examine these sub- stances that are mailed in to law enforce- ment facilities will not be used as mis- used as a "free service" for individual drug pushers who are trying to ' con- vince so-called clients that they have the best dope substance in town, so to speak? Is the gentleman convinced? Mr. DULSKI. Very definitely. I think by the provisions we put in the reported bill overcomes this possibility. Only the generic name of thedrug will be revealed. Subsection (b) of the new section reads as follows: (b). An envelope in which a substance is mailed under this section may contain a self- selected code number to insure that the sender will retain complete anonymity and will permit the sender to inquire by tele- phone of the person to whom it was mailed whether the substance which he mailed is in fact a drug, and if so, the generic name of the drug and the names and addresses of local social and law enforcement agencies which are capable and willing to assist the person who forwarded the drug sample. I think that puts another protection in the bill. Mr. ROUSSELOT. In other words, it would be highly unlikely and impossible then for a drug pusher to try to encour- age his clientele to use this system in- correctly to convince his users that he has a higher degree of narcotics to sell and that he can test it for himself. Is that correct? Mr. DULSKI. I am fully aware. of the fact and I am satisfied with the language in the bill. Mr. ROUSSELOT. I thank the gentle- man. Mr. DERWINSKI. Mr. Speaker, I rise in support of H.R. 12383, a bill to allow a person to mail, in complete anonymity, a substance suspected of being a drug to Government officials for analysis pur- poses. In the recent past, drugs have become a common household word. No matter where we live, large or small community, no matter our social standing, no matter if we are affluent or poor, no matter if wo are educated or not educated, drugs have managed to infiltrate every rank. Drugs just do not discriminate. There are massive efforts now on every level of government to attack this criti- cal problem, and that is good. What this legislation purports to do is to give par- ents and concerned people an additional tool to prevent and stop drug addiction before it is too late. In many communities throughout the United States, drug analysis programs are in effect, and are effective. For these communities, H.R. 12383 will supplement their programs. Hopefully, this bill will reach out to those parents and children who are sus- picious of law enforcement officials, for whatever reason, and give them an op- portunity to anonymously mail suspected substances to Government officials for analysis. It is not important why these people have not or will not avail them- selves of the present means to have a sus- pected substance analyzed. What is im- portant is what we, the Congress, afford_ the communities and, of course, parents and children, another means to help themselves fight a destructive foe, which has claimed too many lives already. Mr. Speaker, this is good legislation. It will, I believe, be used and will be of help to many people. Mr. NIX. Mr. Speaker, H.R. 12383 with amendments was reported unanimously in my Subcommittee on Postal Facilities and Mail and in the full Post Office and Civil Service Committee by Members of both parties. Extensive hearings on this bill dem- onstrated that the bill.is necessary be- cause it will clarify the law, in that it will positively provide an exemption in title 39 of the United States Code for the mailing of samples of narcotics for testing by Government agencies. The purpose of such testing in many voluntary local government programs is to ascertain whether or not a substance is a dangerous drug and what its type is, while providing anonymity to the sender. This is done by identifying a specific sample by number. An anonymous tele- phone inquiry is sufficient to obtain the results. While this program has been of great aid to parents and others, it can- not develop fully until a means is found for the mailing of such samples, since the personal delivery of such samples breaks down the anonymity of persons participating. It is true that prosecution under Fed- eral legislation has to be based on the intent to commit a felony, and that prosecutions for the mailing of samples would probably never be brought. It is also true that this interpretation is based on an inference. Therefore, it is impor- tant to state positively in the law that the mailing of samples of suspected nar- cotics to Government agencies for test- ing is within the law and not a violation of the postal statutes. We seek to make the unclear, clear. We believe that this legislation should be enacted because voluntary' testing pro- grams depend on public trust. This bill will aid that trust and protect the ano- nymity of those participating. On behalf of the membership of my subcommittee, I urge the House to enact this legislation introduced by our great chairman, the Honorable THADDEUS J. DULSKI. I congratulate him on the au- thorship of this legislation. The SPEAKER. The question is on the motion offered by the gentleman from New York (Mr. DULSKI) that the House suspend the rules and pass the bill H.R. 12383, as amended. August 14, 1972 The question was taken; and (two- thirds having voted in favor thereof) the rules were suspended and the bill, as amended, was passed. GENERAL LEAVE Mr. DULSKI. Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days to extend their remarks on the bill, H.R. 12383. - The SPEAKER. Is there objection to the request of the gentleman from New York? There was no objection. CONCERNING THE WAR POWERS OF CONGRESS AND THE PRESIDENT Mr. ZABLOCKI. Mr. Speaker, I move to suspend the rules and, pass the bill (S. 2956) to make rules governing the use of the Armed Forces of the United States in the absence of a declaration of war by the Congress, as amended. The Clerk read as follows: S. 2956 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress reaffirms its powers under the Con- stitution to declare war. The Congress recog- nizes that the President in certain extraor- dinary and emergency circumstances has the authority to defend the United States and its citizens without specific prior author- ization by the Congress.' SEc. 2. It is the sense of Congress that the President should seek appropriate consulta- tion with the Congress before involving the Armed Forces of the United States in armed conflict, and should continue such consulta- tion periodically during such armed conflict. SEc. 3. In any case in which the President without specific prior authorization by the Congress- SEc. 4. Nothing in this Act is intended to alter the constitutional authority of the Congress or of the President, or the provi- sions of existing treaties. (1) commits United States military forces to armed conflict; (2) commits military forces equipped for combat to the territory, airspace, or waters of a foreign nation, except for deployments which relate solely to supply, repair, or train- ing of United States forces, or for humani- tarian or other peaceful purposes; or (3) substantially enlarges military forces already located in a foreign nation; the President shall submit promptly to the Speaker of the House of Representatives and to the President of the Senate a report, in writing, setting forth- (A) the circumstances necessitating his action; (B) the constitutional, legislative, and treaty provisions under the authority of which he took such action, together with his reasons for not seeking specific prior congressional authorization; (C) the estimated scope of activities; and (D) such other information as the Presi- dent may deem useful to the Congress in the fulfillment of its constitutional respon- sibilities with respect to committing the Na- tion to war and to the use of United States Armed Forces abroad. The SPEAKER. Is a second demanded? Mr. FINDLEY. Mr. Speaker, I de- manded a second. The SPEAKER. Without objection, a second will be considered as ordered. There was no objection. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 August 14, 1972 CONGRESSIONAL RECORD - HOUSE 11(di The Postal Service shall 'prescribe such regulations as may be appropriate to carry out the provisions of this section.". SEc. 2. The table of sections of chapter 30 of title 39, United States Code, is amended by adding at the end thereof the following: "3012. Mailing of drugs for analysis". SEC. 3. Section 308(a) of the Controlled Substances Act (21 U.S.C. 828(a)) issmended by adding immediately before the period at the end thereof the following: "or except under section 3012 of title 39". The SPEAKER. Is a second demanded? Mn GROSS. Mr. Speaker, I -demand a second. The SPEAKER. Without objection, a second will be considered as ordered. There was no objection. Mr. DULSKI. Mr. Speaker, I yield my- self such time as I may consume. (Mr. DULSKI asked and was given permission to revise and extend his remarks.) Mr. DULSKI. Mr. Speaker, -1 spon- sored H.R. 12383 in order to remove one more obstacle in our constant fight against drug abuse. This legislation will open us one more avenue of communi- cation-the U.S. mails-between con- cerned parents and local social and law enforcement agencies engaged in drug abuse prevention. H.R. 12383 specifically authorizes a sample of any substance, not exceeding 1 ounce in weight, suspected of being a drug, to be mailed by any parent to an employee of the Federal Government or a State or local government engaged in drug abuse prevention, in order to ascer- tain whether the substance is in fact a drug. The legislation provides that the sub- stance may be mailed in an envelope containing a self-selected code number to insure that the sender will retain com- plete anonymity, and will permit the sender to inquire at a later date by tele- phone as to whether the substance which he mailed is in fact a drug. If the sub- stance is a drug, he will be advised of the generic name of the drug and the names and addresses of local social and law enforcement agencies which are capable and willing to assist the person who forwarded the drug sample.' Mr. Speaker, there is no additional cost involved in this legislation and I am- convinced that it will add one more tool to be used in the fight against drug abuse. Many parents are finding substances in their homes or in the personal posses- sions of their children which they sus- pect may be dangerous drugs or narcot- ics. It is important at this stage that the parent learn just what the substance is, whether it is in fact dangerous or not, so that a meaningful confrontation and decision can be made. Many parents are reluctant or afraid to go to the logical source, a local law en- forcement agency, for an analysis of the substance. Moreover, most parents are convinced that there is no logical way to mail a suspected substance to the local officials and obtain a report of the analy- sis without subjecting their child to ar- rest. We were told by representatives of the Postal Service that at the present time there Is no provision of law which, of its have no fear of arrest to themselves or Mr. DULSKI. As the gentleman recalls, own force, prohibits the mailing of drugs. their children if they bring substanc i rry~e i d no limita- Approved For Release 2005/06/06: CIA-RDPi5U0U38 U`u 1uu'uiuu i u - The comprehensive Drug Abuse Preven- tion and Control Act of 1970 (21 U.S.C. 843 (b)) prohibits the use of any com- niunication facility, including the U.S. mails, to commit or facilitate the com- mission of an act constituting a felony uxidei the 1970 act. One such felony is the knowing or intentional unauthorized distribution of certain drugs. Also, section 1718 of title 18, United States Code, prohibits the mailing of poisons and Materials which may kill or injure another, and authorizes the Post- master General to limit the transmission of poisonous drugs and medicines. In view of the fact that the statutes declaring drugs rionmailable require an element off knowledge to involve the criminal sanctions, the Postal Service takes the position that regulations could be issued under existing law to per- mit the nailing to law enforcement agencies for analysis of a substance which is merely suspected of being a drug. While conceivably the 'Postal Service could corre t the difficulty tinder existing law, nevertheless, such action has not been taken and this legislation will make it abundantly clear that the suspected substance may be sent through the mails for the purpose of obtaining ari.analysis. Mr. Speaker, for quite some time I have been concerned, both as a, parent and as a Member of Congress, with the alarming increase in the use of 'drugs by our teenagers. Unfortunately, most parents do'.not know where to turn when they first learn that a drug problem may exist within their own homes. Most of us have an inherent hesitancy to consult the logi- cal authoritative source-the local so- cial and law, enforcement agencies en- gaged in drug abuse prevention. There is no question in my mind that the social and law enforcement agen- cies are willing and eager to help par- ents seeking to intercept the path to drug addiction among minors. 'I discussed this drug problem late last year with the local law enforcement peo- ple in my', district. One in particular, Michael A. Amico, sheriff of Erie Coun- ty, who has had over 15 years serv- ice of law enforcement in fighting drug abuse, was especially helpful. During hearings held by my Subcom- mittee on Investigations in Buffalo, N.Y., Sheriff Amico testified that there are two major, avenues that we can and must take. The first is the unrelenting enforcement of drug abuse laws. The second is the dissemination of informa- tion and the opening of the lines of communication between parents, abus- ers and potential abusers, and our law enforcement agencies. Mr. Speaker, it is this goal of opening lines of communication that this legis- lation will facilitate. What in effect will mailing accomplish? We are looking for cooperation from parents. We are trying to overcome the implied threat of arrest or exposure should parents bring suspected illegal drugs to a police station. Sheriff Arnico stated that in. spite of repeated assur- for analysis and verification, most par- ents still have the fear of arrest and re- fuse to confide in the police. This legislation will effectively remove any -apprehension by the parent in at least taking that first step, that very im- portant step, which is the identification of the unknown substance which is sus- pegted of being a drug. I would like to reecho Sheriff Amico's statement that there is absolutely no basis for anyone to fear arrest in con- nection with the procedure that would be established under' this legislation. First of all, the sender would have complete anonymity. There is no possible way of the local law enforcement officials as- certaining the identity of the inquirer unless the inquirer chooses to identify himself. Second, as pointed out by the Postal Service officials during the testi- mony on the bill, the criminal laws in- volved require an element of knowledge in order to invoke the criminal sanctions. It seems clear under these conditions that an individual could not be success- fully prosecuted for mailing to law en- forcement agencies for analysis a sub- stance which he merely suspected of be- ing a drug. Mr. Speaker, I urge the favorable vote today on H.R. 12383. The SPEAKER. The Chair recognizes the gentleman from Iowa (Mr. GROSS). Mr. GROSS. Mr. Speaker, the distin- guished chairman of the House Commit- tee on Post Office and Civil Service, the gentleman from New York (Mr. DULSKI) has adequately explained the bill. I support the legislation and urge its adoption. (Mr. GROSS asked and was given per- mission to revise and extend his remarks.) Mr. ROUSSELOT. Mr. Speaker, will the gentleman from New York (Mr. DULSKI) yield? Mr. DULSKI. I yield to the gentleman from California, a member of our com- mittee. Mr- ROUSSELOT. Mr. Speaker, I sat in on many of these hearings. I know the gentleman from New York, the chair- man of our committee, has been very much interested In trying to provide this additional vehicle to allow parents and others to, have a way to determine whether harmful drug substances are, in fact, being used. Is the gentleman from New York satis- fied that the bill, as it is now before the House, has iriuluded the preventative measures that were indicated as needed by the sheriff of Los Angeles County and the chief of police of the city of Los An- geles and others who wanted to be sure that this system which is being estab- lished in this legislation does not provide a method for major drug pushers to mis- use this system? Mr. DULSKI. In my "opinion the re- ported bill does provide those safeguards. I think we have put all, the safeguards into the bill. Mr. ROUSSELOT. Could the gentle- man explain how the original legislation was altered to prevent the kind of prob- lems that were suggested by the chief of . Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 H 7576 CONGRESSIONAL RECORD - HOUSE interventions without prior consultation with the Congress: The Bay of Pigs, the intervention in the Dominican Republic, the bombing of North Vietnam, the in- cursion into Cambodia and Laos " are among the examples. Whatever our individual beliefs may be relative to the merits of these unilateral actions by the Executive, we can agree that Congress should have had a signifi- cant role in the decision to-mount each of these actions. What was it that the framers of our Constitution had in mind when they gave exclusively to Congress the power to de- clare war? To declare war is to decide on war, to declare it as a national policy. It was intended that after the Congress had decided to depart from the normal state of affairs and declare war, and only after such declaration, the Presi- dent, as Commander in Chief, was to exercise the power to conduct or direct the war. One of the strongest advocates of Ex- ecutive power, Alexander Hamilton, writ- ing in Federalist No. 69, said that the President's authority as Commander in Chief "would amount to nothing more than the supreme command and direc- tion of the military and naval forces, as first general and admiral of the con- federacy." Distinguished historians have already assembled evidence on this matter which points inescapably to the conclusion that the Constitution envisions the Congress as the sole and exclusive repository of the power both to declare war and to judge its propriety. But now we are told that such a view of the warmaking powers of Congress is hopelessly archaic. We are told that we live in a world of instantaneous com- munication, where momentous decisions need to be made in less time than it takes to complete -a quorum call. Perhaps so. But there are two compelling responses to that argument: First, there is little precedent for such a view historically. I invite the Executive or its supporters to produce one example where the use of the warmaking powers by the President, without authority of Congress, was required by the nature of the eihergency faced by the Nation. As sudden and unexpected as the attack on Pearl Harbor was, we went to war only after its declaration by Congress. - Second, if we are speaking of an un- precedented, unspeakable surprise at- tack, one which the President could not reasonably have anticipated, legislation can cover such a contingency quite ade- quately. Under the provisions of S. 2956 as passed by the Senate, in a dire emer- gency, the President -need not come to Congress for authority to repel an at- tack or to save American lives abroad; he can act, and then forthwith request the needed authority from Congress. His hands are not tied at the crucial mo- ment. But he must convince the Con- gress, within a.few days after he acts, of the rightfulness of his unilateral action. I submit that that is not an unreasonable duty to impose. Mr. Justice Jackson once wrote words that are timely and relevant to the is- sue we are discussing today. He wrote: We may say that power to legislate for emergencies belongs In the hands of Con- gress, but only Congress itself can prevent power from slipping through its fingers. And that, Mr. Speaker, is the very es- sence of the war powers debate. I urge the House to approve the pending bill to- day, and bring Congress a step closer to reasserting its rightful constitutional powers and responsibilities in- this awe- some area. The SPEAKER. The question is on the motion offered by the gentleman from Wisconsin (Mr. ZABLOCKI) that the House suspend the rules and pass the bill S. 2956, as amended. The question was taken. Mr. CHARLES H. WILSON. Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present. The SPEAKER. Evidently a quorum is not present. The Sergeant at Arms will notify ab- sent Members, and the Clerk - will call the roll. The question was taken; and there were-yeas 344, nays 13, not voting 75, as follows: [Roll No. 3191 YEAS-344 Abbitt Chappell Gettys Abernethy Clark Gibbons Abourezk Clausen, Gonzalez Adams Don H. Goodling Addabbo Clawson, Del Grasso Anderson, Clay Gray Calif. - Cleveland Green, Oreg. Anderson, 111. Collier Griffin Anderson, Collins, Ill. Griffiths Tenn, Collins, Tex. Gross Andrews, Ala: Colmer Grover Andrews, Conable Gubser N. Dak. Conover Gude Annunzio Conyers Haley Archer Corman Hall Arends Coughlin. - Hamilton Ashley Culver Hammer- Aspin Curlin schmidt Aspinall Daniel, Va. Hanley Baring Danielson Hanna Barrett Davis, Ga. Hansen, Idaho Begich Davis, S.C. Hansen, Wash. Belcher de in Garza Harrington Bell Delaney Harsha Bergland Denholm Harvey Bevili Dent Hastings Biaggi Derwinski Hathaway Biester Devine Hawkins Bingham Dickinson Hays Blatnik Dingell Heckler, Mass. Boggs Donohue Heinz Boland Dorn Helstoskt Bolling Downing Henderson Bow Drinan Hicks, Mass. Brademas Dulski Hicks, Wash. Brasco Duncan Hillis Bray du Pont Hogan Brinkley Edwards, Calif. Holifield Brooks Eilberg Horton Broomfield Erlenborn Hosmer Brotzman Esch Howard Brown, Ohio Eshleman Hull Broyhill, N.C. Evans, Colo. Hungate Broyhill, Va. Fascell Hunt Buchanan Findley Hutchinson Burke, Fla. Fisher Ichord Burke, Mass. Flood Jacobs Burleson, Tex. Flowers Jarman Burlison, Mo. Flynt Johnson, Calif. Byrne, Pa. Foley Johnson, Pa. Byrnes, Wis. Ford, Gerald R. Jonas Byron Ford, Jones, Ala. Cabell William D. Jones, N.C. Caffery Forsythe Jones, Tenn. Camp Fountain Karth Carey, N.Y. Fraser Kazen Carlson Frenzel Keating Carney Fulton Kee Casey, Tex. Fuqua Kemp Cederberg Galiflanakis King Celler Garmatz Kluczynski Chamberlain . Gaydos Kyl August 14, 1972 Kyros Pettis Springer Landgrebe Peyyer Staggers Latta Pickle Stanton, Link Pike J. William Long, Md. Pirnie Stanton Lujan Poage , James V. McClory Podell Steed McCloskey Poff Steele McClure Powell Steiger, Ariz. McCollister Preyer, N.C. Steiger, Wis. McCulloch Price, Ill. Stephens McDade Pryor, Ark. Stokes McEwen Pucinski Stratton McFall Purcell Stubblefield McKay Quie Stuckey McKevitt Randall Sullivan Macdonald, Rangel Symington Mass. Rees Talcott Mahon Riegle Taylor Maliliard - Roberts Teague, Calif. Mallary Robinson, Va. Teague, Tex. Mann Robison, N.Y. Terry Martin Rodino Thompson, Ga. Mathias, Calif. Roe Thomson, Wis. Mathis, Ga. Rogers Thone Matsunaga Ronealio Tiernan? Mayne Rooney, Pa. Udall Mazzola Rosenthal Ullman Meeds Rostenkowski Van Demon Melcher Roush Vander Jagt Mlkva Rousselot Vanik Miller, Calif. Roy Waggonner Miller, Ohio Roybal Wampler Mills, Ark. Runnels Ware Minish Ruth Whalen Mink St Germain Whalley Mitchell Sandman White Mizell Sarbanes Whitehurst Monagan Satterfield Whitten Montgomery Saylor Widnall Moorhead Scherle Williams Morgan Schneebeli Wilson, Bob Mosher Schwengel Wilson, Murphy, Ill. Scott Charles H. Myers Sebelius Winn - Natcher Seiberling Wolff Nedzi - Shipley Wyatt Nelsen Shoup Wydler Nichols Shriver Wyman Nix Sikes Yates Obey Sisk Yatron O'Hara Skubitz Young, Fla, O'Neill Smith, Iowa Young, Tex. Patman Smith, N.Y. Zablocki Patten Snyder Zion Perkins Spence- Zwach NAYS-13 Badillo Evans, Tenn. Moss Bennett Green, Pa.. Reuss Burton Hechler, W. Va. Scheuer Dow Kastenmeier Eckhardt Koch NOT VOTING-75 Abzug Frey Murphy, N.Y. Alexander Gallagher O'Konski Ashbrook Giaimo Passman Baker Goldwater Pelly Betts Hagan - Pepper Blackburn Halpern Price, Tex. Blanton Hebert Quillen Brown, Mich. Keith Railsback Carter Kuykendall Rarick Chisholm Landrum Reid Clancy Leggett Rhodes Conte Lennon Rooney, N.Y. Cotter Lent - Ruppe Crane Lloyd Ryan Daniels, N.J. Long, La. Schmitz Davis, Wis. McCormack Slack Dellenback McDonald, Smith, Calif. Dellums Mich. Thompson, N.J. Dennis McKinney Veysey Diggs McMillan Vigorito Dowdy Madden Waldie Dwyer Metcalfe Wiggins Edmondson Michel Wright Edwards, Ala, Mills, Md. Wylie Fish Minshall Frelinghuysen Mollohan So (two-thirds having voted in favor thereof) the rules were suspended and the bill, as amended, was passed. The Clerk announced the following pairs : Mr. Hebert with W. Rhodes. Mr. Rooney of New York with Mr. Rails- back. Mr. Daniels of New Jersey with Mr. Conte. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 August 14, 1972 CONGRESSIONAL RECORD HOUSE 1117575 burial of their sons, lost to battles they part our fgrefathers intended in the ex- tion we find today in our society. The were not permitted to win. ercise of tl}e war making power. price we are paying is high and we have Letters have poured into my office re- Mr. SISIf. Mr. Speaker, I support Sen- the right to ask if, in view of the alter- vealing the anguished scars this war is ate bill S. 2956 which is before us here natives, the price is not too high. leaving on our people. Too many young today and large its passage. This bill does not tie the President's people regard our democratic process This bill' introduced by Senator JAVITS hands in the case of an attack, such as at with skepticism and our military system of New York Is similar to one I intro- Pearl Harbor, where he must respond has suffered tremendously in both pres- duced in May 1971. immediately. And it would not tie hi,,. 11 tige and morale. Our people ache to see My bill was incorporated into a joint hands in the event of a nuclear attack or. this matter settled. Too many of our resolution which I supported on the floor the United States or any of its territories; comrades live among us as maimed and a year ago` last August when it passed by or possessions. What it might avoid In disfigured reminders of the horrible sac- a voice vote. the future is the escalation of small unit rifices of war. I said then that the resolution was not actions, piecemeal, bit by bit, Into war. I feel most profoundly that if Congress as strong a'statement of congressional in- The Javits bill would allow the Prest? had either declared or refused to allow tent to clatify presidential war powers as dent to open hostilities where there was our involvement in Vietnam at its out- I would have liked. I had the same res- an attack on the United States, or threes set, a clear cut attitude would have been ervation when I supported a similar reso- of an attack, allow retaliatory action, established and the national hurt of our lution in the last session of Congress. and allow action to forestall the threat people avoided. However, in both cases I felt I should of an attack. It would allow the Coin - I deeply believe that the Constitution support the committee on Foreign Af- mander in Chief to repel an attack is a I ing document. The Congress of fairs which had considered my bill, sev- against the Armed Forces outside the the l;?ted States must activate its re- eral others of similar nature, conducted -United States, on territories and posses- repsonsibilities under article I. section hearings and then reported out a clean sions, or to forestall the threat of such an 2 which states that the Congress shall bill to the' House. The committee, I felt, attack. It would allow him to use what- have the power to declare war, and to had access to a great deal more informa- ever force necessary to protect U.S. citi- make all laws necessary and proper for Lion, the testimony of witnesses expert in zens being evacuated from foreign coun- executing those powers. international affairs, than I and I was tries, and allow the use of the Armed This resolution on which we vote to- happy to go along. Forces in fulfilling treaty obligations day in no way alters the President's I revies these steps only to point up where the treaty Called for armed actior;. power to initially engage our forces and the fact that now we have the opportu- The bill also requires the President to repel a sudden attack or to protect Amer- nity to act on a measure, which to my report to Congress within 30 days cf dean lives and property. It does require mind, accomplishes what we who intro- actions described in the act in writing as the President to notify the Congress duced bills last year, set out to accom- to the reasons for his actions, and pro- promptly of his actions and his reasons plish. vides that continuation of hostilities for committing troops. That objective is clearly stated in this longer than 30 days after their initiation The framers of the Constitution re- bill where'it says: must be approved by specific congres- alized that the President, under certain The purpose of this act is to fulfill the sional legislation. circumstances, might have to take de- intent of the framers of the Constitution of I do not believe this bill would, If en - fensive action to repel and subdue a sud- the United States and to insure that the acted, reduce the President's flexibility to den attack on this great Nation. But that collective judgment of both the Congress act where he must respond immediately. was the extent of the war making power and the President will apply to the initia; I hope, Mr. Speaker, this bill will irk. - tion of hostilities involving the Armed prove communications between the exei - they were willing for the President to Forces of the United States and the con- utive branch and Congress. After all, it exercise. tinuation Of such hostilities. 11 t b t tl1 eep e l th f This was made quite clear in a letter We do not intend, Mr. Speaker, to en- from Thomas Jefferson to James Madi- croach on the recognized powers of the son in 1789 in which Jefferson wrote: President, our Commander in Chief, to We have already given in example one conduct hostilities authorized by Con- effectual check to the dog of war by trans- gress. That is not our purpose. We do ferring the power of letting him loose from intend to bring Congress back into the the executive to the legislative body, from constitutional framework as a fully par- those who are to spend to those who are to pay. ticipating; partner in the decision to The United States is the leader of the free world today. But this is not so be- cause our citizens are anxious that we take the lead in military battles. The mantle of leadership has been placed upon our shoulders-not by any nation- but by destiny and circumstance--by the sheer fact of our physical and economic strength, and by our role as the only real counter to the forces of Communism in the world today. If events in Indochina have taught us to better fulfill that role, then it is not a wholly dark story. While this resolution in no way affects our pres- ent involvement, the mistakes of the past must be heeded and prevented in the future, Will we take a good step today for unity tomorrow? We must do no less. Mr. Speaker, we in the Congress have the power to assure the American people that never again will we allow a situation like Vietnam to occur. We can begin to unify this Nation for the future by the adoption of this resolution, thereby as- suring our people that we will totally up- hold the Constitution. Let us play the make war. The Vietnam war has shown us that the country can become involved in hos- tilities, and that involvement deepened, as Laos and Cambodia demonstrate, without Congress being adequately pre- pared and informed in advance to make a wise decision on the involvement. Con- gress has been coerced into acting on the brink of military defeat, to save allies, when advance information could have accomplished the same end. Tonkin Gulf, Laos, and Cambodia have amply demonstrated the error in expanding hostilities without consulta- tion with Congress and without sub- mitting the case to the people of the United States. Without popular approval of the electorate, hostilities cannot long has been agreat division in our society. cedures to prevent future undeclared This, above all, we must avoid, if we wars. "No more Vietnams" should be air must go to war, objective in setting up such procedures. The executive branch bears a terrible The time for Congress to take this action burden for failure to communicate with and to reassert its constitutional role is Congress, and through Congress, the long overdue. people of the country. This failure to Time after time in the past 11 years, communicate has produced the polariza- Presidents have mounted major military u coopers ion a w is on y wi branches our Government can function. If the bill has improved the dialog, I think we have taken a step toward re- solving our internal problems. Thank you, Mr. Speaker. Mr. MATSUNAGA. Mr. Speaker, I am pleased to support the passage of this amended version of S. 2956, which :s identical to war powers legislation that passed the House more than a year age. I trust that this will break the proce- dural logjam and enable Congress to ap- prove a meaningful measure on this, the most important issue faced by any na- tion the fateful issue of peace or war. Regardless of differences in individual feelings about our present involvement in Indochina, we all recognize I am sure, that the war in Vietnam has torn this Na- tion apart. Certainly, one of the major underlying causes for this divisiveness is the lack of a clear commitment of our national will by the group closest to the people-the Congress of the United States. If we have learned but one lesson from the tragedy in Vietnam, I believe it is Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 H 7574 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 CONGRESSIONAL RECORD -HOUSE August 14, 1972 Mr. BINGHAM. I thank the gentle- United States-threat to the lives of man. such citizens and nationals." On the Mr. Speaker, I might point out that other hand, the present House version the title of this bill does differ from the of S. 2956 that confronts us today, does title of House Joint Resolution 1. The not involve the granting of war powers title of this bill reads: to the President in such defensive con- To make rules governing the use of the ditions. Instead it relates to the preroga- Armed Forces of the United states in the tives of Congress in cases that are not absence of a declaration of war by the defensive, but which commit U.S. mili- Congress. tary forces to "armed conflict" and to " Does the gentleman feel that the bill as reported by the House Foreign Affairs Committee does in fact make rules gov- erning the use of the Armed Forces? Mr. ZABLOCKI. As the gentleman well knows, in the committee the House For- eign Affairs Committee not only struck everything after the enacting clause but also amended the title, so that the title of the Senate version is stricken. On page 11 of the bill, if the gentleman will refer to it, it says we amend the title so as to read: An act concerning the war powers of the Congress and the President, military activity in a "foreign nation. In other words, this House version of the legislation openly contemplates U.S. overseas involvement where the United States could be just as easily regarded as an aggressor, as not. Moreover, the present House version of S. 2956 establishes no date or time limit, as the original version of the other body did, when the President is obliged to re- port to the Congress about the military actions that he has directed the Armed Forces to perform. This present House version of the legislation would be another abdication of the Congress from its constitutional assignment as a co- So the title'is amended by our action. ordinating branch of the Government, Mr. BINGHAM. I thank the gentle- an abdication wrapped in words that lend man. the appearance of congressional power, If I might make one final comment, but let go the substance of that power. as the gentleman knows, I believe Con- After this legislation, I mean to sug- gress should go further than this bill gest that all naval ships of the United does in terms of possible congressional States be designated no longer by the restraint on the President's war powers prefix "USS", but by the prefix "POS" and I hope that the conference in con- meaning "President's Own Ship," to sidering the two measures will consider signify that our military services are no the proposals I have submitted to the longer democratically controlled, but are Foreign Affairs Committee and to the now, as in European days of yore, the House providing for a very simple pro- personal instrumentalities of the mon- cedure for :ction by either House in dis- arch. approving the use of Armed Forces over- The legislation, Mr. Speaker, is just seas by the President. I think it would another example of the rapid process of be within the power of the conference erosion of congressional power that is committee to agree on that procedure, evermore rapidly degrading this legisla- reached that would go beyond the simple reporting requirements of this measure. Mr. ZABLOCKI. -I am confident that the conferees will give full consideration to all proposals. I am not in a position to say now what the conference will final- ly agree upon. Mr. BINGHAM. I understand. I thank the gentleman. Mr. DOW. Mr. Speaker, I highly re- gret that we are considering this very grave legislation about the war powers of the President on a suspension of the rules, which is a fast process to dispose of less consequential business. On the contrary, Mr. Speaker, the war powers of the President are a prime concern of the Nation and of the Congress, and should entail the most exhaustive examination and debate. The bill S. 2956, which is brought be- fore us for passage today, is a very lame and feeble proposal. It is' a nail in the coffin of congressional strength, and a device for elevating the power of the Executive. Foreign Air bill when this House re- fused to set a date for the war in Viet- nam. I deplore that action, in part be- cause the date was not set, but also because the Congress, by striking out section 13 of the aid bill, refused to take any cognizance of the war in Vietnam. That war, as you know, is the chief issue of major distress and concern in our country today. In our precipitate col- laboration with the Executive in the transfer of the major constitutional powers to the Executive, this body washed its hands of the people's principal trial. Now, by passing the bill S. 2956, we are washing our hands again of the devices of our art that the Founding Fathers trustfully laid in our hands nearly 200 years ago. Mr. DENNIS. Mr. Speaker, Senate bill 2956, which is on the calendar under suspension of the rules today, is, or rather was, in its original form, the bill introduced in the Senate by Senator JAVITS of New York. It seeks to specify The original S. 2956, as offered in the and to clearly restrict the situations in other body, contemplates that actions which the President of the United by the President of a military type would States can employ American Armed be initiated "only-to repel an armed Forces in combat situations without attack upon the United States" or "to re- prior specific consent of the Congress, pel an armed attack of the Armed Forces and then require that any such employ- of the United States located outside of ment, even in these limited cases, shall the United States", or "to protect while end within 30 days unless Congress spe- evacuating citizens and nationals of the cifically authorizes its continuance. I could not support legislation of that character. I believe in the President con- sulting . Congress before commencing hostilities, whenever it is at all possible, and I approve of his making a prompt report to the Congress of any action taken. It is possible that even a measure somewhat broader than this may be feasible if very carefully considered. It is impossible, however, to foresee all cir- cumstances and I could not agree to any ironclad and inimitable 30-day provi- sion binding on the President of the United States, even in ? cases of emer- gency or possible attack on this Nation, where perhaps some future Congress might, for some reason now unforeseen, fail or refuse to act. This issue does not arise today because S. 2956 in its original form is not before us. The Committee on Foreign Affairs has stricken the text of the Senate bill and has substituted -the very different and far less radical text of the House bill, House Joint Resolution 1, which we passed earlier, on August 2, 1971. The idea, as I understand it, is to attempt to bring the Senate to conference. When House Joint Resolution 1 was before the House on August 2, I had a colloquy with the gentleman from Illi- nois (Mr. FINDLEY) and the gentleman from Wisconsin (Mr. ZABLOCKI) in which we established that House Joint Resolution 1, the provisions of which are now inserted under S. 2956, would not in any way restrict or limit the con- stitutional power or the historic prac- tice of the Chief Executive in the field of exercising of war powers, and further, that the requirements of House Joint Resolution 1, respecting reporting by the President to the Congress, could be sat- isfied in a variety of formal- or informal ways. These understandings, of course; still operate and this legislative history still applies to the present identical text which has now been inserted in S. 2956, and it is for this reason that I make no objection to the consideration of the present measure today under suspension of the rules-a procedure which would be unthinkable if we were considering the Javits bill or any comparable legis- lation. Mr. CHAPPELL. Mr. Speaker, I rise in support of S. 2956, a measure intended to help reclaim for the Congress its consti- tutional power to wage war. In May, 1971, I introduced legislation of like in- tent which drew the cosponsorship of 56 of my colleagues. While the bill I intro- duced was, in my opinion a much stronger approach, I shall nevertheless support this bill which makes some reclamation. This bill does not chart a course for our involvement in Vietnam but rather to sound a charge for unity in a nation divided. Certainly the need for American solidarity was never greater than it is today. Our Nation totters on the brink of despair in its efforts to understand America's involvement on another soil 10,000 miles away in a war we have never chosen to win. Our youth are frustrated from bale stagnation and some have even turned to the fantasy of drugs. Thousands of mothers have cried in despair,at the e Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9 August 14, 1972 CONGRESSIONAL RECORD - HOUSE Mr. ZABLOCKI. Mr. Speaker, I yield myself such time as I may consume. (Mr. ZABLOCKI asked and was given permission to revise and extend his remarks.) Mr. ZABLOCKI. Mr. Speaker, S. 2956 as amended is identical to legislation on war powers-House Joint Resolution 1- which was passed under suspension of the rules by the House without recorded dissent on August 2, 1971. Similar legis- lation was passed by the House in the 91st Congress. It is being brought before the House again today in order to permit the House to go to conference with the Senate on war powers-legislation. It should be noted that the parlia- mentary difficulties which require repas- sage of legislation which the House ap- proved more than 1 year ago originated in the other body. The Senate failed to act on the House- passed war powers measure which was before it and, instead, passed out Its own bill. Subsequently it was unable to get the unanimous consent necessary to sub- stitute the House resolution number for its own. Thus, an impasse was created in which both bodies had approved war powers legislation but had no way of getting them to conference unless one house re- passed its proposal as an amendment to the other's legislation. Since the problems originated in the other body, we waited for its Members to iron them out. It is now clear, however, that the Senate will not be able to act and that if there is to be any chance for war powers legislation this session, the House must take the initiative. For that reason, the Committee on Foreign Affairs callcd up the Senate- passed war powers measure, S. 2956, and amended it by striking out the entire text of that bill and inserting the text of House Joint Resolution 1. When the House today passes. S. 2956 as amended, it will in effect be insuring that the legislation it approved last August as House Joint Resolution 1 will go to conference with the Senate-passed war powers proposal. Thus, the action which the House Is being asked to take today is in the na- ture of a technical procedure rather that a vote on the substantive issues in- volved. I believe that this body has made its position clear by its two previous votes overwhelmingly in favor of the concept now embodied in S. 2956 as amended. I also believe that the membersof this body want effective, responsible, consti- tutional war powers legislation to be part of the record of this 92d Congress. Such legislation may be possible if the House and Senate proposals are per- milted to go to conference. There has been some question as to whether the two proposals can be recon- ciled. If I did not believe that they can be reconciled, I would not be seeking a House-Senate Conference. The approach taken by the Senate toward this issue has been considerably different than that of the House, and I have repeatedly expressed my misgivings about the Senate measure-both on con- stitutivial and practical grounds. Despite! differences, there is room for eomprom ' between the House and Sen- ate version of war powers legislation. A conferenc bill is possible which will be acceptable to both houses of Congress. Moreover, I believe a compromise is possible which will be acceptable to the President `so that he would be willing to sign the legislation into law-or at least permit it ,o become law by withholding his veto. ;' Perhaps, such an outcome is too opti- mistic, but we shall never know unless an attempt is made to reconcile the House and Senate proposals in a confer- ence. Because the text of this bill has twice before been approved by large majorities under sus pension of the rules, I have not dwelon the provisions of the leg- islation. the committee report contains a section-by-section analysis of the meas- ure which should answer questions about the scope of the bill. In the !interests of conserving time, I shallcor3clude by urging that the Mem- bers of this body suspend the rules of the House and approve this bill. GENERAL LEAVE TO EXTEND Mr. Speaker, I ask unanimous consent that all l4embers may have 5 legislative days in which to extend their remarks on this resolution. Mr. FII TDLEY. Mr. Speaker, I yield myself such time as I may consume. (Mr. FINDLEY asked and was given permission to revise and extend his re- marks.) Mr. FI1 DLEY. Mr. Speaker, it is very true that the Senate bill on war powers goes well beyond the House measure, but it is also true that some provisions of the Senate bill are very similar to those en- compassed by the House bill. I certainly concur with the gentleman from Wiscon- sin that there is a broad area of agree- ment here which should make possible agreement in conference. I am very distressed that the confer- ence has not occurred as yet, but I think we all can be grateful to the gentleman from Wisconsin (Mr. ZABLOCKI) for, per- severing i the legislative underbrush trying to et this bill to conference. It repre$, ents a very important initia- tive which if enacted by Congress and signed into law would be the first time in the history of the Republic that a for- mal relationship has existed between the executive !branch and the Congress in this vital area of war powers. The gentleman from Florida (Mr. FASCELL) and the gentleman from Wis- consin (Mt. ZABLOCcI) have both labored long and and on this measure. I hope their efforts will come to fruition. Mr. ZALOCKI. Mr. Speaker;- I yield 1 minute to the gentleman from Flor- ida (Mr. FFASCEiL). Mr. FAOCELL. Mr. Speaker, I thank the gentle an for yielding. Mr. Speaker, I want to commend the gentleman from Wisconsin (Mr. ZA- BLOCKI) and the gentleman from Illinois (Mr. FINDI.EY) who have worked very diligently to bring this legislation to the floor. I think wemust make the effort to seek a compromise and I support S. 2956, as amended to include the language of House Joint Resolution 1, which I origi- H 7573 nally cosponsored and which passed tl.e House of Representatives in August of 1971. In my judgment it is vitally important that final action be taken during this Congress on legislation designed to re- affirm the constitutional authority of Congress to declare war. House approval of Senate-passed S. 2956, as reported l y the Foreign Affairs Committee, will a.- low the issue to be considered in confe)'- ence, and put us one step closer to final positive action this year. There is no issue of greater impor- tance and significance than the power io declare war, to commit U.S. troops to combat, to maintain our Nation's sect, rity, and to work for world peace. - Our experience in the last several years in Southeast Asia, and particularly in the Cambodian incursion, has clearly pointed to the need for a reappraisal of the war powers of Congress and the Ex- ecutive. The Congress must take steps to establish a working relationship with the Executive to insure: That American soldiers will never di e unless it is absolutely necessary; That this Nation will never again go to war bit by bit with a minimum of con- sideration; and That if we must ever go to war agaili, it will be only with the deep and wick - spread understanding and support of.th e American people. I strongly urge the House to approve the pending bill so that consideration of this vital issue may proceed. (Mr. FASCELL asked and was given permission to revise and extend h' s remarks.) - Mr. BINGHAM. Mr. Speaker, will the gentleman yield? Mr. ZABLOCKI. I yield to the gentle- man from New York. Mr. BINGHAM. Mr. Speaker, I thank the. gentleman for yielding. - I wonder, first of all, if the gentleman from Wisconsin could comment on tha significance of the wording of the first paragraph of the bill, which is the saws as it was in House Joint Resolution 1 but which has been questioned by some as possibly committing the Congress to the proposition that the President has au ? thority to carry on the present hostilities in Indochina. Mr. ZABLOCKI. Under the Constitu ? tion the President has the inherent pow- ers of safeguarding our Nation. The Con- gress in this resolution recognizes these powers. We state that under certain ex- traordinary and emergency circum? stances the President has the authorit~T to defend the United States and its citi- zens without specific authorization bb, the Congress. But there are other in.- stances where the President may decide to commit our troops. Then, under this legislation, he should consult with the Congress. And after he does commit the troops he must explain the reasons why and report the extent to which the troops are being committed in a foreign land. Mr. BINGHAM. Would it be correct to say that this language is not intended to approve or disapprove any particular use of force that may be used by -the President? Mr. ZAITLOCKL That is very true. Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9