WAR POWERS

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700090001-9
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• Document Page Count: 37
• Document Creation Date: December 16, 2016
• Document Release Date: May 16, 2005
• Sequence Number: 1
• Publication Date: June 14, 1973
• Content Type: REPORT

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93ll CONGRESS SENATE REPORT
1st Session No. 220
WAR POWERS
Mr. FULBRIGIrr, f.roin the Committee on Foreign Relations,
submitted the following
REPORT
together with
SUPPLEMENTAL VIEWS
[To accompany S. 440]
The Committee on Foreign relations, to which was referred the
bill (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 the
Congress, having considered the same, reports favorably thereon and
recommends that the bill do pass.
PREVIOUS SENATE ACTION
The bill, S. 440, is identical in text to S. 2956 which was passed by
the Senate on Arpil 13, 1972 by a vote of 68 to 16. No agreement
having been reached in conference in the 92nd Congress, S. 2596
was reintroduced as S. 440 on January 18, 1973 by Senator Javits and
57 cosponsors. S. 440 has a total of 61 cosponsors as it goes to the
.Senate floor.
PURPOSES OF THE BILL
A detailed explanation of all the bill's provisions is given at the end
of the Committee Report, beginning on page 21.
The purpose of the war powers bill, as set forth in its statement
of "purpose and policy," is to fulfill-not to alter, amend, or adjust-
the intent of the framers of the United States Constitution in order
to insure that the collective judgment of both the Congress and the
President will be brought to bear in decisions involving the introduc-
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tion of the Armed Forces of the United States in hostilities or in
situations where imminent involvement in hostilities is indicated by
circumstances. The constitutional basis for this bill is found in Article
1, Section 8, of the Constitution, which enumerates the war powers
of Congress, including the power to declare war and to make rules for
the Government, and regulation of the Armed Forces, and further spe-
cifies that Congress, shrill 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 the Constitution in the Government of
the United States, or in any Department or Officer thereof."
The essential purpose of the bill, therefore, is to reconfirm and to
define with precision the constitutional authority of Congress to exer-
cise its constitutional war powers with respect to "undeclared" wars
and the way in which this authority relates to the constitutional re-
sponsibilities of the President as Commander-in-Chief.
Section 3 of the bill defines the emergency conditions in which, in
the absence of a declaration of war by Congress, the Armed Forces
of the United States may be introduced in hostilities, or in situa-
tions where imminent involvement in hostilities is indicated by
circumstances.
The designation of conditions for the emergency use of the armed
forces spelled out in Section 3 is the result of a concerted effort on the
part of the Committee and the principal sponsors of the "War Powers
Act" to make provision for the exigencies of modern warfare and
international politics but to do so in such a way as to fulfill the intent
of the Constitution, particularly with reference to war powers of
Congress.
Senator Javits, the initial sponsor of war powers legislation, in testi-
monv before the Committee in 1971 explained the rationale for the pro-
posed legislation as follows :
illy cosponsors and I regard this bill as basic national legis-
lation. It is legislation essential to our security and well being.
It is legislation in the interest of the President as well as the
Congress. . . . We live in an age of undeclared war, which
has meant Presidential war. Prolonged engagement in un-
declared, Presidential war has created a most dangerous im-
balance in our Constitutional system of checks and bal-
ances.. . (The bill] is rooted in the words and the spirit of
the Constitution. It uses the clause of Article I, Sec-
tion 8 to restore the balance which has been upset by the
historical disenthronement of that power over war which the
framers of the Constitution regarded as the keystone of the
whole Article of Congressional power-the exclusive author-
ity of Congress to "declare war"; the power to change the
nation from a state of peace to a state of war.
In testimony before the Committee in 1971, Senator Stennis, Chair-
man of the Armed Services Committee, stated: ". . I believe that all
of the bills and resolutions so far introduced are important chiefly be-
cause they attempt to delineate between those circumstances in which
the President can first act unilaterally and those in which prior author-
ity by Congress is required before armed forces can be used."
Section 3 of the bill makes these crucial delineations. Subsections
(1), (2) and (3) are codifications of the President's authority to "repel
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sudden attacks" and protect U.S. nationals whose lives are endangered
abroad-powers based on established precedent and the intention of
the Constitutional Convention, as evidenced by Madison's notation
about "leaving to the Executive the power to repel sudden attacks."
Subsection (4) of Section 3 of the bill is a crucial provision of the leg-
islation, requiring that all other use of the Armed Forces in hostilities,
or situations where hostilities are clearly imminent, must be "pursuant
to specific statutory authorization."
In allowing of emergency action to forestall the direct and imminent
threat of an attack the majority of the Committee accepted the view
expressed in testimony before the Committee by Alexander M. Bickel,
Professor of Law, Yale University, that the authority involved is "a
reactive not a self-starting affirmative power...." As Professor
Bickel put it in 1971:
The "sudden attack" concept of the framers of the Consti-
tution denotes a power to act in emergencies in order to guard
against the threat of attack, as well as against the attack it-
self, when the threat arises, for example, in such circum-
stances as those of the Cuban missile crisis of 1962. So long as
it is understood that this is a reactive, not a self-starting
affirmative power, I have no trouble agreeing that it is vested
in the President by the Constitution, that it provides flexi-
bility, and that Congress cannot take it away.,
Again, in testimony before the Committee in 1973, Professor Bickel
expressed his belief 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 con-
stitutional 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 line-drawing,
of separating one thing from another, and in doing so one
must state what is on both sides of the line.2
With respect to the provisions of subsection (4) of section 3, Pro-
fessor Bickel made the following point:
The Constitution does not say that the President shall de-
clare war subject to Congressional veto by failure, to appro-
priate. It says that Congress shall declare war, and that must
mean that Congress, whether by formal declaration or other
legislation, must expressly authorize the initiation of hostili-
ties, save only in the limited conditions in which the President
may act on his own independent authority, and in which,
indeed, his authority may be exclusive. To appropriate money
in support of a war the President is already waging, it seems
to me, is no more to ratify his action in responsible fashion
than to appropriate for the payment of his salary.3
i "War Powers Legislation." Hearings Before the Committee on Foreign Relations, U.S.
Senate, 92d Congress, 1st Session. (Washington: U.S. Govt. Printing Office, 1972.), p. 553.
2" War Powers Legislation," Hearings Before the Committee on Foreign Relations, U.S.
Senate, 93rd Congress, 1st Session. (Washington : U.S. Govt. Printing Office, 1973), p. 21.
8 "War Powers Legislation," (1973), p. 23.
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Ia his testimony before the Committee in 1971, Senator Eagleton
umulo the point forcefully concerning the need for reporting:
For Congress to pay more than pious lip service to its war
making role, it nuust not only pass a strong war powers bill,
but, also must be willing to demand, receive and act upon rele-
vant information it needs to exercise .the most solemn of its
constitutional responsibilities-making the final decision that
takes this country to war.
Section 5, which with Section 3 is the heart and core of the bill,
provides that the use of the armed forces under any of the emergency
conditions spelled out in Section 3 shall not be sustained for a period
beyond thirty days unless Congress adopts legislation specifically au-
thorizing the continued use of the armed forces. The intended effect
of Section 5 is to impose a prior restriction on the emergency use of
the armed forces by the President. Emergency use of the armed forces
by the President-under Section 3--would be undertaken with full
knowledge on his part that the operation could be continued beyond
a thirty-day period only with the specific authorization of Congress.
The President would thereby stand forewarned against any emer-
gency use of the armed forces that did not conform with the law and
that he did not feel confident would command the support of majorities
of both Houses of Congress.
On June 15, 1970, Senator Javits introduced the first war powers
bill (S. 3964) with the cosponsorship of Senator Dole; and on Febru-
ary 10, 1971, lie reintroduced it revised version as S. 731 with the co-
sponsorship of Senators Mathias, Pell and Spong. War powers bills
were subsequently introduced on January 27, 1971 by Senator Taft;
on March 1, 1971 by Senator Eagleton; on May 11, 1971 by Senator
Stennis; and on May 15, 1971, by Senator Bentsen. All of these bills,
except that introduced by Senator Taft, contained the requirement of
advance Congressional authorization for the commitment of the armed
forces to hostilities by the President, except in certain designated emer-
gencies, in the event of which. the President would be authorized to
commit the armed forces to combat for a period not to exceed thirty
days unless explicitly authorized by Congress.
The immediate legislative history of the war powers bill can be
dated to the controversial Gulf of Tonkin Resolution of 1964 and the
subsequent conduct of hostilities in Vietnam, Laos and Cambodia with-
out valid Congressional authorization. In 1969, by a vote of 70 to 16,
the Senate adopted the National Commitments Resolution, which ex-
pressed the sense of the ,Senate that "aa national commitment by the
T7ni,ted States to a foreign power necessarily and exclusively results
from affirmative action taken by the executive and legislative branches
of the United States Government...." This enactment has been ignored
by the executive. Recent Presidents have relied upon dubious histori-
cal precedents and expansive interpretations of the President's author-
ity as Commander-in-Chief to justify both the initiation and
perpetuation of foreign military activities without the consent-in
some instances without even the knowledge---of Congress. As Presi-
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dent Johnson put it in a press conference, "We stated then, and we
repeat now, we did not think the [Tonkin Gulf] resolution was neces-
sary to do what we did and what we are doing.4
The purpose of the National Commitments Resolution, as the Com-
mittee commented in its Report of April 16, 1969, was "not to alter
the Constitution but to restore it." The resolution was understood by
the Committee as essentially ". . an invitation to the executive to
reconsider its excesses, and to the legislature to reconsider its omis-
sions, in the making of foreign policy, and, in the light of such recon-
sideration, to bring their foreign policy practices back into compliance
with that division of responsibilities envisoned by the Constitution and
sanctioned by over a century of usage." The Committee also held the
view at that time that'no further legislative enactment was required,
that,, indeed, ". . . all that is required is the restoration of Con-
stitutional procedures which have been permitted to atrophy." Much
to the Committee's disappointment, the executive. has chosen not to
accept the "invitation" conveyed in the National Commitments Resol u-
tion. The executive-not just the present Administration but its recent
predecessors as well-leas chosen to ignore Congressional expressions
of constitutional principle which do not carry the force of law.
Following upon the adoption of the National Commitments Resolu-
tion it was hoped that the then newly installed Nixon Administration
would take a view different from that of its predecessor. That hope has
not been realized. The commitment of American military forces to
Cambodia in 1970, and to Laos in 1971, without the consent or even
the knowledge of Congress, showed that, like its predecessor, the pres-
ent Administration believes the President may initiate foreign mili-
tary actions without reference to the authority of the Congress.
Following upon extensive hearings before the Committee in 1.971,
Senators Davits, Stennis, Fagleton, and Spong joined in introducing a
joint bill, S. 2956, on December 6, 1971 and were joined by Senators
'Taft and Bentsen. It was this bill, representing a synthesis of separate
bills offered by the co-sponsors, which the Committee favorably re-
ported and which the Senate subsequently adopted 68-16 on April 13,
1972, with three perfecting amendments, offered by the bill's sponsors,
which were adopted unanimously.
Between March 8, 1971 and October 6, 1971, and again on April It
and 12, 1973, the Foreign Relations Committee conducted public
hearings on the war powers bills. The hearings began with testimony
from a number of leading scholars and academic authorities on the
formation of the Constitution and the early period of our nation's
history. These early hearings, combined with the later testimony of
eminent contemporary legal scholars, were important in establishing
the constitutionality of the war powers legislation before the Commit-
tee. Several close advisors of the previous two Presidents testified as
to the desirability and workability of the proposed legislation viewed
from the perspective of their own experience as Presidential advisors.
In this regard, the Committee takes particular note of the testimony
in favor of S. 440 offered by Nicholas deB. Katzenbach, who as Tinder
4 "Foreign Relations Committee on the National Commitments Resolution." Reproduced
in IJocuneents Relating to the War Power of the Congress, the President's Authority as
Conzrnapader-tin-Chief, and the War in Indochina, 91st Congress, 2nd Session, compiled by
the Senate Foreign Relations Committee (Washington : Oovernnment Printing OIIic(,, 1970),
p. 24.
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Secretary of State in the Johnson Administration had testified force-
fully against the National Commitments Resolution. In his testimony
of April it, 1973 Mr. Katzenbach expressed a new viewpoint : "I con-
clude that this legislation is constitutional and, if enacted, binding
upon the President." With respect to the impact of the bill's provisions
on crisis diplomacy, McGeorge Bundy, who served as President Ken-
nedy's National Security Assistant during the Cuba missile crisis,
while testifying in support of the legislation, stated: "I think the
essential processes of the Cuban missile crisis would not have been
sharply affected by this resolution or this bill or this kind of
procedure."
In two years the Committee has beard testimony in public session
by a total of 28 witnesses, including the Secretary of State speaking
for the. Administration, 10 Senators- 2 Congressmen, and a number of
distinguished historians and legal scholars. Significant additional
material and opinion were unsorted in the record.
Speaking in favor either of specific bills or the general concept of
war powers legislation Were the following :
(1) Henry Steele Conrmager, Professor of. History, Amherst
College.
(2) Richard B. Morris, Professor of History, Columbia University.
(3) Alfred II. Kelly, Professor of History, WWrayne State University.
(4) Claiborne Pell, U.S. Senator from Rhode Island.
(5) Jacob K. Javits, U.S. Senator from New York.
(U) Thomas I!'.14'agleton, U.S. Senator from Missouri.
(7) Alpheus T. Mason, Professor of Political Science, Princeton
Un iversity .
(8) Robert Taft, Jr., U.S. Senator from Ohio.
(9) Charles McC. Mathias, U.S. Senator from Maryland.
(10) Paul Findley, U.S. Congressman from Ohio.
(11) Frank I lorton, U.S. Congressman from New York.
(12) McGeorge Bundy, President, Ford Foundation.
(13) George Reedy, former Press Secretary to President Johnson.
(14) Alexander M. Bickel, Professor of Law, Yale University.
(15) Lloyd M. Bentsen, U.S. Senator from Texas.
(16) William 1). Rogers, Arnold & Porter, Washington, D.C.
(17) William B. Spong, Jr., U.S. Senator from Virginia.
(18) John Stennis, U.S. Senator from Mississippi.
(19) Lawton Chiles, U.S. Senator from Florida.
(20) Arthur J. Goldberg, Esq., former U.S. Ambassador to the
United Nations.
(21) Raoul Berger, Charles Warren Senior Fellow in American
Legal History, Harvard Law School.
(22) Nicholas B. Katzenbach, Vice President and General Counsel,
IBM Corporation.
Speaking in opposition to the war powers legislation were the fol-
lowing in chronological order :
(1) Barry Goldwater, U.S. Senator from Arizona.
(2) John Norton Moore, Professor of Law, University of Virginia.
(3) William P. Rogers, Secretary of State.
(4) George Ball, Lehman Bros. International, New York.
(5) Charles N. Brower, Acting Legal Adviser, Department of
State.
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(6) David F. Maxwell, member, Advisory Panel on International
Law (Department of State).
Those supporting war powers legislation emphasized the intent of
the framers of the Constitution and the importance of the Congres-
sional war power for a system of government based on the separation
of powers and checks and balances. Those testifying against the
war powers legislation cited historical instances in which the Presi-
dent has used the armed forces without the consent of Congress and
the necessity of rapid action under the conditions of the nuclear age.
Meeting in executive session, the Committee marked up the War
Powers Act December 7, 1971, adopting clarifying and perfecting
amendments. On the same day, by unanimous vote, the Committee
ordered the bill reported favorably to the Senate.
The bill was debated in the Senate from March 28 to April 13, 1972,
on which date it was adopted by a vote of 68 to 16.
The war powers act of 1972 failed of enactment into law owing to
the inability of the two houses to agree in conference. In 1972 the
Senate and House bills were markedly different in content and scope,
and the Senate-House conference, able to convene only once late at the
end of the session, was unable to reconcile the two -bills.
Following its reintroduction on January 10, 1973, the Committee
again considered the war powers bill in executive session. During the
Committee mark-up, Senator Fulbright proposed substitute language
for section 3 of the bill. This pro posed amendment was identical to the
one offered by Senator Fulbright during the 1972 floor debate, which
was defeated on April 12, 1972 by a vote of 10-68. Following exten-
sive discussion, the Committee rejected the proposed substitute by a
vote of 4-10. The Committee on May 16, 1973 then voted 15-0 (with
one member voting "present") to report the war powers bill favorably
to the Senate.
COMMITTEE COMMENTS
The United States is entirely a creature of the Constitution.
Its power and authority have no other source. It can only
act in accordance with all the limitations imposed by the
Constitution.5
Justice Harlan observed :
"We are accustomed to speak of the Bill of Rights and the
Fourteenth Amendment as the principal guarantees of per-
sonal liberty. Yet it would surely be shallow not to recognize
that the structure of our political system accounts no less for
the free society we have. The Founding Fathers," said Justice
Harlan, "staked their faith that liberty would prosper in the
new nation not primarily upon declarations of individual
rights but upon the kind of government the Union was to
have." "No view of the Bill of Rights or interpretation of any
of its provisions," the Justice warned, "which fails to take due
account of [federalism and separation of powers] can be con-
sidered constitutionally sound." s
Justice Hugo Black in Reid v. Covert, 354 U.S. 5-6 (1957).
a Excerpts from remarks to the American Bar Center, Chicago, Illinois, August 13, 1913.
In 49 A.B.A.J. 943 (1963).
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The Committee concurs in the view expressed by Justice Harlan :
when checks and balances arc disrupted in one area of our public
policy, all others are affected, and so also are the basic rights of the
citizen. As Professor Alpheus Thomas Mason said in his testimony
before the Committee,'- "Separation of powers in war making, constitu-
tionally shared by Congress and the President, has all but vanished.
The President is in complete, unqualified control." 7 In the Com-
inittee's view, as in the view of the framers of our Constitution, "corn-
plete, unqualified control" in one area poses the danger, if not indeed
the inevitability, of "complete, unqualified control" over all other
areas of our national life.
Advocates of Presidential power point out that the President is
*r responsible, elected :official, the only official indeed who is elected
by all the people. The President's accountability cannot be gain-
said, but of and by :itself is dangerously insufficient. As Madison
wrote in 1 ederalist 51, "A dependence on the people is, no doubt, the
primary control on the government; but experience has taught man-
kind the necessity of auxiliary precautions." s
Despite instances of executive "usurpation" o power, more often
unintentional than deliberate, and an even greater number of instances
of failure on the part of the Congress to defend and exercise its pre-
rogatives, the major cause of the unhinging of the checks and balances
of our political system as to war making has been the impact of three
decades of almost uninterrupted crisis in foreign policy. In time of
emergency there is a natural, powerful tendency to fall in line behind
the leadership of the President. When the nation is thought to be in
danger, it seems to most people irresponsible, capricious, or even un-
patriotic to question the President's word as to the need for action of
one kind or another. Secretary of State Acheson summed up this state
of mind cogently when he advised the Senate in 1951 that, it ought not
to quibble over President Truman's claim of authority to station
American troops primarily in Europe. Acheson said, "We are in a
position in the world today where the argument as to who has the power
to do this, that, or the other thing, is not exactly what is called for from
America in this very critical hour." 9
Experience has shown that counsel of this nature is not meant to be
taken quite literally : it is not meant to suggest that it does not matter
where the power of decision lies, but rather that the power should be
left with the President exclusively and Congress ought not to inter-
fere. Similarly, executive branch lawyers have fallen into the habit
of telling us that the Constitution is vague about the division of for-
eign policy and war powers and that questions as to "who has the power
to do this, that, or the'other thing" are best left to be resolved accord-
ingto the requirements" of the moment-according. as Under Secretary
Katzenbach put it, to "the instinct of the nation and its leaders for
political responsibili.ty...." 10 Or, as Mr. Justice Rehnquist put it when
lie was Assistant Attorney General,
7 "war Powers," Hearings, . 2r)4.
, The Federalist, Henry Cabot Lodge, editor (New York and London : C. P. Putnam Sons,
1908) , u. 32:1.
Assignment of Ground Forces of the United States to Duty in the European Area,"
hearing by Committees on Foreign Relations and Armed Serricea, U.S. Senate, 82d Congress,
let Session, on S. Con. Res. 8, Feb. 1-28. 1951 (Washington: U.S. Govt. Printing Offiee,
1931). pp. 92-93.
10 "National Commitments" Hearings, pp. 72-73.
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The Framers here, as elsewhere in the Constitution, painted
with a broad brush, and it has been left to nearly two hundred
years of interpretation by each of the three coordinate
branches of the National Government to define with somewhat
more precision the line separating that which the President
may do alone from that which he may do only with the assent
of Congress.Y"
In pract=ice, the advocates of the "broad brush" have something more
precise in mind : they want. the President to be left unencumbered to
use the armed forces and contract foreign obligations essentially as he
sees fit, drawing Congress into the decision-making process insofar as
he finds it useful and convenient.
The Committee does not contest the need of "flexibility," nor of
adaptability, in our political process in order to accommodate to mod-
ern conditions. The Comm'ittee does, however, contest the view which
holds that the price of adaptability is the repudiation of. constitutional,
precept. The notion of a "living" Constitution ceases to make sense
when it is taken as license. for nullifying the Constitution's intent-or
at least some part of it. The real issue, in the Committee's view, to
which the war powers bill purports to address itself, is whether our
constitutional process can be reconciled with the requirements of the
nuclear age. The Committee believes that it can, that indeed, even as
written in 1787, the Constitution made adequate provision for re-
sponse to a genuine emergency with whatever speed night be required.
No responsible citizen questions the right-or even the duty-of the
President to take immediate action against a sudden attack, or im-
minent threat of an attack, upon the United States or its armed forces.
What the Committee does contest is that expansive view of Executive
prerogative which holds that the President may use the armed forces
at will, even in conditions falling short of it genuine national emer-
gency, and that he may sustain that use for as long as he, and he alone,
sees fit. Such unrestricted Presidential control of the armed forces is
neither necessary or wise in our nuclear age, reconcilable with the
Constitution, nor tolerable in a free society.
Far from having been made obsolete by the necessity for dealing
with fast-moving events in the nuclear age, the checks and balances
of our Constitution have become, in the Committee's view, more es-
sential than ever. Disposing as he does of a vast arsenal of nuclear
weapons, ballistic missiles and an enormous number and variety of
lesser weapons, the President of the United States has acquired some-
thing close to absolute power over the life and death of hundreds of
millions of people all over the world. As Alexander Hamilton, even
thonmh an advocate of strong executive authority, warned in Federal-
ist 75.-
The. history of human conduct does not warrant that
exalted opinion of human virtue which would make it wise in
a nation to commit interests of so delicate and momentous a
kind as those which concern its intercourse with the rest of
the world to the sole disposal of a magistrate created and cir-
cumstanced as would be the President of the United Sta,tes.12
it Statement by william TI. Rehnquist, Assistant Attorney General, Office of Legal C01111-
"e1, on on the "President's Constitutional Authority to Order the Attack on the Cambodian
Sanctuaries," Documents Relating to the War Power of Congress, p. 176.
1 The Federalist, pp. 467-468.
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A. TIE INTENT OF TIIE FRAMERS
Whatever else they may have painted with a "broad brush," the
framers of the American Constitution were neither uncertain nor am-
biguous about where they wished to vest the authority to initiate war.
In his testimony before the Foreign Relations Committee, Professor
Raoul Berger expressed astonishment that anyone should consider the
matter of the division of war powers between Congress and the Presi-
dent as "murky" : "The power to wage war, it may be categorically as-
serted, was vested by the Constitution in Congress, not the President. If
this be so," said Professor Berger with reference to the current legis-
lation, "your bill merely seeks to restore the original design. It cannot
be unconstitutional to go back to the Constitution." 13 The Founding
Fathers had been much dismayed by the power of the British Crown
to commit Great Britain-and its American colonies-to war. They
were also fearful of the danger of large standing armies and of the
possible defiance of civilian authority by military leaders. In order to
alleviate the threat of militarism and of the possible resurgence of
monarchical tendencies in the new Republic, the Article I, Section 8
the framers vested the authority to initiate war in the legislature, and
in the legislature alone, and established the framework for tight Con-
gressional control over the military establishment.
The absence of extended debate over the war powers in the Constitu-
tional Convention attests to the near unanimity of the Founding
Fathers as to where that authority was meant to be placed. There was
some discussion as towhether the war power should be vested in the
Congress as a whole or only the Senate, but only one delegate, Pierce
Butler of South Carolina, favored vesting the war power in the
President.
The Constitutional :Convention at first proposed. to give Congress the
power to "make" war but changed this to "declare" war, not, however,
because it was desired to enlarge Presidential power but in order to
permit the President to take action to repel sudden attacks. Madison's
notes on the proceedings of the Convention report the change of word-
ing as follows : "Mr. Madison and Mr. Gerry moved to insert `declare,'
striking out 'make' war; leaving to the executive the power to repel
sudden attacks."' It is noteworthy that the delegates who spoke on
this change of wording all expressed concern with the possible enlarge-
ment of Presidential i power. Elbridge Gerry, for example, declared
that he "never expected to hear in a republic a motion to empower the
Executive talons to declare war." George Mason firmly expressed him-
self as "against giving the power of war to the executive," on the
ground that he was "nbt to be trusted with it."
A closely related concern of the framers was to make it more diffi-
cult to start a war than to stop one. It was essentially for this reason
that the power to authorize hostilities was vested in the Congress
rather than in the President as successor to the British Crown. It was
also for this reason that the war power was vested in the two Houses
of the Congress rather than in the Senate alone. As Oliver Ellsworth
told his fellow delegates, it "should be more easy to get out of war,
13 "war Powers" (1973) p. 14.
it The Records of the Federal Conrention of 1787, 4 volumes (Max Farrand, editor, New
haven and London : Yale University Press, 1966), vol. 2, p. 318.
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than into it"; and as George Mason said, he was "for clogging rather
than facilitating war; but for facilitating peace." 15
The division of authority intended by the framers was explicit :
the Congress was to "declare"-that is, to authorize the initiation of-
war. The President, as Commander-in-Chief, was to respond to sud-
den attacks and to conduct a war once it had started and command
the armed forces once they -,,,ere committed to action. The powers of
the President as Commander-in-Cliief were explained by Alexander
Hamilton in F'ederali8t 69:
The President is to be commander in chief of the army and
navy of the United States. In this respect his authority would
be nominally the same with that of the king of Great Britain,
but in substance much inferior to it. It would amount to noth-
ing more than the supreme command and direction of the
military and naval forces, as first General and Admiral of
the Conferderacy, 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 Constitution under con-
sideration, would appertain to the legislature.1?
Or as Jefferson put it in a letter to Madison in 1789:
We have already given in example one effectual check to
the Dog of war by transferring 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.17
The Supreme Court has also declared that the power to initiate war
is one which rests solely with the Congress. In the "Prize Cases" of
1862 the Supreme Court said :
By the Constitution, Congress alone has the power to de-
clare a national or foreign war ... The Constitution con-
fers on the President the whole Executive power.... He 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.18
In the early years of the Republic, Presidents acknowledged and
carefully respected the war power of Congress. President Madison,
for example, who had been one of the principal framers of the Con-
stitution and one of its principal interpreters through his writings in
the 1F'ederalist Papers, sent a message to Congress on June 1, 1812, in
which, after recounting the depredations of British ships on American
commerce on the Atlantic, lie referred the matter to Congress in these
words :
Whether the United States shall continue passive under
these progressive usurpations and these accumillati.n
wrongs, or opposing force to force in defense of their na-
tional rights, shall commit a just cause into the hands of
the Almighty disposer of events, avoiding all connections
15 Summarized by Richard B. Morris, Gouverneur Morris Professor of History, Columbia
University, in a statement before the Foreign Relations Committee, March 9, 1971.
11 "war Powers" Hearings, p. 80.
17 The Papers of Thomas Jefferson, 17 volumes (Julian P. Boyd, ed., Princeton ; Princeton
University Press, 1955), vol. 15, p 397.
67 USC 635 (1962).
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which might entangle it- in the contests or views of other
powers, and preserving a constant readiness to concur in an
honorable reestablishment of peace and friendship, is a solemn
question which the Constitution wisely confides to the legis-
lative department of the Government.-
Madison summarized the issue in these unequivocal terms: "Every
just view that can be taken of this subject, admonishes the public of
the necessity of a rigid adherence to the simple, the received, the
fundamental doctrine of the Constitution, that the power to declare
war, including the power of judging the causes of war, is fully and
exclusively vested in the legislature ; that the eNecutive has no right,
in any case, to decide the question, whether there is or is not cause for
declaring war; that the right of convening and informing Congress,
whenever such a question seems to call for a decision, is all the right
which the Constitution has deemed requisite and proper." 20
'Plre Monroe Doctrine has been erroneously cited as an early prece-
dent for use of the armed forces by the President acting on his own
authority. In keeping with the intent of the framers of the Constitu-
tion, President Monroe made the appropriate distinction between a
statement of policy and the authority to carry it out. When in 1824
the Government of Colombia inquired as to what action the United
States might take under the Monroe Doctrine to repel certain Euro-
pean intervention in the Latin American Republics, Secretary of State
.Iolin Quincy Adams replied,
With respect to the question, "in what manner the Gov-
ernment of the United States intends to resist on its part
any interference of the I-Ioly Alliance for the purpose of
subjugating the new republics or interfering in their politi-
cal forms" you understand that by the Constitution of the
United States, the ultimate decision of this question belongs
to the Legislative Department of the Government.21
President Buchanan, to cite another example, acknowledged the
war power of Congress quite explicitly in his message to Congress of
December 6, 1858:
The Executive government of this country in its inter-
course with foreign nations is limited to the employment of
diplomacy alone; When this fails it can proceed no further.
It cannot legitimately resort to force without the direct au-
thority of Congress, except in resisting and repelling hostile
attacks.22
Daniel Webster, who served as Secretary of State during the early
185o's, was also a distinguished constitutional lawyer. On July 14,
1851, during his tenure as Secretary of State, lie wrote as follows:
" A compilation of the Messages and Papers of the Presidents, 10 volumes (James Rich-
ardson, ed.. Washington : Govt. Printing Office, 1917). vol. 2 pp. 489-490.
su Quoted by Raoul Berger in "War-Making by the President," 121 University of Penn-
nylvanla Law Review (1972), p. 48.
'.John Quiney Adams to Don Jose Maria. Salazar, August 0, .1824. quoted In The Record
of American Diplomacy, third edition (Ruhl J. Bartlett, ed., Nuw York* Alfred A. Knopf,
1954), p. 185.
2=.?f Con, pilation of the 'Messages and Papers of The Presidents (New York: Bureau of
National Literature, Inc., 1917), vol. 7, p. 3047.
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In the first place, I have to say that the war-making power
in this Government rests entirely in Congress; and that the
President can authorize belligerent operations only in the
cases expressly provided for the Constitution and the laws.23
During the course of the nineteenth century it became accepted
practice, if not strict constitutional doctrine, for Presidents acting on
their own authority to use the armed forces for such limited purposes
as the suppression of piracy and the slave trade, for "hot pursuit" of
criminals across borders, and for the protection of American lives and
property in places abroad where local government was not function-
ing effectively. Ali informal, operative distinction came to be accepted
between the use of the armed forces for limited, minor or essentially
non-political purposes and the use of the armed forces for "acts of
war" in the sense of large-scale military operations against sovereign
states. In the former category, custom and usage developed to give a
certain informal sanction to unauthorized Presidential action; in the
latter, involving full-scale warfare against a foreign power, no Presi-
dent was to claim the right to act without Congressional authorization
until the twentieth century.
Nor indeed was it contended by any President until recent years
that, because declarations of war might be obsolete, so also was the
authority of Congress to authorize-or refuse to authorize-the initia-
tion of war. Even if it be granted, as perhaps it must, that the former
declaration of war is no longer a useful instrument in international.
politics, this is to say no more than that a particular form in which
the Congress exercised its constitutional authority in the pt st is no
longer appropriate. As Richard 13. Morris, Gouveneur Morris Profes-
sor of History at Columbia University, said in his testimony before the
Committee-after citing the provisions of the Constitution relating to
Congress's power to declare war and "raise and support armies", the
authority of the President as Commander-in-Chief, and the limitation
of appropriations of money for the support of armies to a maximum
of two years
* * * it is a fair inference from the debate on ratification
and from the learned analysis offered by the Federalist
papers that the war-making power of the President was little
more than the power to defend against imminent invasion
when Congress was not in session.24
It is also of great importance to note that the residual legislative
authority over the entire domain of foreign policy-not just the war
power-was placed in Congress by the Constitution. Members of Con-.
gress have themselves perhaps understimated the authority vested in
them by the "necessary and proper" clause of Article I, Section 8, of
the Constiution. That clause entrusts the Congress to make all laws
"necessary and proper for carrying into execution" not only its own
powers but "all other powers vested by this Constitution in the Govern-
ment of the United States, or in any department or officer thereof."
Strictly interpreted, the "necessary and proper" clause entrusts the
Congress not only to "carry into execution" its own constitutional war
=s A letter from Daniel Webster to Mr. Severance, July 4, 1551, in Tho Writings and
Papers of Daniel Webster, vol. 14, p. 440.
31 "War Powers" Hearings, p. 81.
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power, but also, should it be thought necessary, to define and codify
the powers of the government as a whole, including those of the Presi-
dent as it principal officer.
B. THE GROWTH OF PRESIDENTIAL POWER
Prior to the Second World War Presidential use of the armed forces
without Congressional authorization was confined for the most part
to the Western Hemisphere, primarily to Mexico and the Caribbean.
President McKinley's participation, in the Boxer expedition in China
in 1000 was a noteworthy exception. Only since the Second World War
have American Presidents claimed, and exercised, the power to commit
the armed forces to full-scale and extend warfare overseas. The kind
of foreign military intervention we have witnessed in the last quarter
century is, in the words of Henry Steel Commager, Professor Emeritus
of History. Almost College, "if not wholly unprecedented, clearly
a departure from a long and deeply-rooted tradition." 25
Professor Alexander Bickel of the Yale Law School made the same
point in his testimony before the Committee :
* * the decisions discussed as early as 1964, made in the
first half of 1965, and executed thereafter., to commit the
moral and material resources of this Nation to full-scale war
in Vietnam seem to me the mark the farthest, and really an
unprecedented, extension of Presidential power. Certainly the
power of the President in matters of war and peace has grown
steadily for over. a century. The decisions of 1965 may have
differed only in degree from earlier stages in this process of
growth. But there comes a point when a difference of degree
achieves the magnitude of a difference in kind. The decisions
of 1965 amounted to an all but explicit transfer of the power
to declare war from Congress, where the Constitution lodged
it, to the President, on whom the framers explicitly refused to
Confer it.2c
The transfer from Congress to the executive of the actual power-
as distinguished from the constitutional authority-to initiate war
has been one of the most remarkable developments in the constitu-
tional history of the United Sates. For this change Congress as well
as the Executive bears a heavy burden of responsibility.
When President Truman committed the armed forces to Korea in
1950 without Congressional authorization, scarcely a voice of dissent
was raised in Congress. Senator Watkins of Utah challenged the Presi-
dent's authority to commit the country to war without consulting the
Congress, even in compliance with a resolution of the United Nations
Security Council, and said that, if he were President, he ". . would
have sent a message to the Congress of the United States setting forth
the situation and asking for authority to go ahead and do whatever was
necessary to protect the situation." 27 Senator Taft also challenged
President Truman's action but not until January 1951. "The Presi-
dent," he said, "simply usurped authority, in violation of the laws and
25 "War Powers" Hearings, p. 8.
2 Ibid., pp. 551-552.
Con.pre8sional Record, 81st Congress, second session, vol. 96, pt. 7, Senate, June 27,
1950, pp. 9229-9233.
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the Constitution, when he sent troops to Korea to carry out the resolu-
tion of the United Nations in an undeclared war." 28
The isolated voices of Watkins and Taft were ineffectual against
the accelerating tide of growing executive power. Secretary of State
Acheson virtually threw down the gauntlet to Congress-although
few' at that time were disposed to pick it up-when he testified before
the Committee on Foreign Relations and Armed Services Committee
in 1951 in support of President Truman's plan to station six divisions
of American soldiers in Europe. He said on that occasion :
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 interefered with by the Congress in
the exercise of powers which it has under the Constitution."
In the course of the Vietnam war, the. Johnson Administration re-
confirmed the executive's claim to unilateral authority in the use of the
armed forces. In his now famous testimony of August 1967, Under
Secretary of State Katzenbach contended that the Gulf of Tonkin
Resolution was "as broad an authorization for the use of armed forces
for a purpose as any declaration of war so-called could be in terms of
our internal consti'tutiona'l process." 30 In fact, the Johnson Adminis-
tration went farther.
Where as Mr. Katzenbach at least claimed the e-vistence of legislative
authority, the President himself contended that no such authority was
required. Speaking of the Gulf of Tonkin Resolution in his news con-
ference of August 18, 1967, President Johnson said,
We stated then, and we repeat now, we did not think 'the res-
olution 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.31
Making the same claim in more formal language, the Legal Advisor
to the Department of State had written in March 1966,
There can be no question in present circumstances 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.32
The attitude of the present Administration will be explored in
greater detail in Subsection C below. It suffices here to point out that
the Nixon Administration has shown that its conception of the war
power differs in no important respect from that of its predecessor. It
could hardly be otherwise, one suspects, if only because the accumula-
tion of precedents of unauthorized Presidential use of the armed
28 Congressional Record, 82d Congress, first session, vol. 97, pt. 1, Senate, January 5,
1951, p. 37.
29 "Assignment of Ground Forces of the United States to Duty in the European Areas,"
ppo92-9 3.
National Commitments." Hearings, p. 24.
as New York Times, August 19, 1967, P. 10.
32 Leonard C. Meeker, "The Legality of U.S. Participation in the Defense of Vietnam,"
The Department of State Bulletin, March 28, 1966, p. 484.
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forces seems to have had a spurious self-legitimizing effect. A Presi-
dent can hardly be blamed if, coming into office, he supposes himself
to be properly vested: with all of the powers exercised by his prede-
cessor, however improperly exercised. A President can hardly be
blamed if, under sueli'circumstances, lie regards an effort by Congress
to reassert powers which it has long neglected to exercise as an attempt
to infringe upon his own powers.
All of which is by way of making the point that it is far more difb-
cult to reassert a power which has been permitted to atrophy than to
defend one which has been habitually used. The Congress accord-
ingly bears a heavy responsibility for its passive acquiescence in the
unwarranted expansion of Presidential power. As the late Justice
Robert H. Jackson pointed out in his concurring opinion in Young?s-
tow'n v. Sawyer, there is a "zone of twilight" between the discrete
areas of Presidential and Congressional power. Politics, like nature,
abhors a vacuum. When Congress created a vacuum by failing to de-
fend and exercise its powers, the President inevitably hastened to fill
it. As Justice Jackson connented, "Congressional inertia, indiffer-
ence or quiescence may sometimes, at least as a practical matter, en-
able, if not invite, measures on independent Presidential responsibil-
rty.. " 33
To assert power is not, however, to legitimize it. As a Supreme Court
.Justice. of the last century commented: "Ali unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no pro-
tection, it creates no office; it is, in legal contemplation, as inoperative
as though it had never been passed." ` The same principle must apply
to action by the executive.
In the pithy phrase of Professor Berger, "Illegality is not legiti-
mated by repetition." 3"
The Nixon Administration has shown that it shares the expansive
view of the President's power as Commander-in-Chief held by preced-
ing ldrninistrations. The commitment of American military forces
to Cambodia in 1970, and to Laos in 1971, demonstrated the present
Administration's determination to initiate new foreign military actions
solely on its own authority.
In its public statements as well as in its foreign military operations
the Nixon Administration has indicated its belief that the President is
at liberty to commit the armed forces substantially as he sees fit. In its
comments of March 10, 1969, on the then-pending National Commit-
ments Resolution, the Department of State made the following
assertion :
As Commander-in-Chief, the President has the sole author-
ity to command our Armed Forces, whether they are within
or outside the United States. And, although reasonable men
may differ as to the circumstances in which he should do so,
the President has the constitutional power to; send U.S. mili-
tary forces abroad without specific congressional approval.3"
Justice Robert H. Jackson concurring In Youngstown Sheet and Tube Co. v. Sawyer,
345 U.S. 579 (1952).
34 justice Field in Norton v. Shelby County, 115 U.S. 425 (1886).
w Berger, "War-Making by the President," p. 60.
al "National Commitments" hearings, p. 25.
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The same assumptions of executive war-making authority were ex-
pressed in the Department of State's comments of March 12, 1970, re-
garding the proposal then before the Foreign Relations Committee for
repeal of the Formosa, Cuba, Middle East, and Tonkin resolutions.
Declining either to advocate or to oppose such action, the State De-
partment took the position that ". . . the Administration is not de-
pending on any of these resolutions as legal or constitutional authority
for its present conduct of foreign relations, or its contingency plans."
More specifically, as to the war in Indochina, the State Department
asserted that ". . this Administration has not relied on or referred
to the Tonkin Gulf resolution of August 10, 1964, as support for its
Vietnam policy."
. On January 12, 1971, President Nixon sunned into law a bill which,
among other things, repealed the Gulf of Tonkin Resolution. The re-
peal of that Resolution quite naturally raised the question as to the
authority the Administration believed it was acting under in its con-
tinned prosecution of the war in Indochina. The Administration, so
far as is known to the Committee, has never addressed itself to that
question except to assert that it was protecting the lives of American
troops. Even this contention, however, ceased to be available as an
explanation for the bombing of Cambodia after the signing of the
Paris peace agreement of January 1973 and the subsequent with-
drawal of American forces from Indochina.
President Nixon himself has said little on the subject. Asked in it
press conference on April 29, 1971, for his opinion of the pendi ng war
powers bills, the. President replied, ". . . I believe that limiting the
President's war powers, whoever is President of the United States,
would be a very great mistake." The President ivelet on to sav : "We
live in times When situations can change so fast internationally that
to wait until the Senate acts before a President can act might be that
we acted too late." 37
In Mr. Nixon's perspective there seems to be an association between
the war power and the grandeur of the Presidential office itself.
Speaking in Texas on April 30,1972, President Nixon said:
. each of us in his way tries to leave that office with as
much respect and with as much strength in the world as he
possibly can-that is his responsibility-and to do it the best
way that he possibly can. . . . But if the United States at
this time leaves Vietnam and allows a Communist takeover,
the office of President of the United States will lose respect
and I am not going to let that happen."
In its official comments on the war powers bills the Administration
placed primary emphasis on historical precedents and the need for
speedy action as the basis of its opposition to the bills. As with the
previous Administration, emphasis was also placed on what the Execu-
tive regards as the imprecision of the Constitution, the need of Presi-
dential flexibility, and the desirability, as expressed in Assistant Sec-
retary Abshire's letter of May 1971, o some sort of undefined "common
perspective" between the two branches of Government.
In his definitive presentation of the Administration's views on war
powers legislation, presented to the Committee on May 14, 1971, See-
37 New York Times, April 30, 1971, p. 18.
S. Rept. 220, 93-1-2
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retary of State Rogers gave evidence of holding the impression that
the war powers bills purported to alter the Constitution. "Any attempt
to change it," he said; "should be subjected to long and full consider-
ation of all aspects of the problem." 3s
This viewpoint was reiterated on April 12, 1973, by the State De-
partment's Acting Legal Adviser, who averred that the war powers
bill would "alter" the "fundamental constitutional scheme." 39 The
notion that Congress was somehow undertaking to change the Con-
stitution by asserting its own war powers is one also offered by the
Johnson Administration. Now, as on previous occasions, the Commit-
tee reconfirms its own conviction that, far from purporting to alter the
Constitution in any way, the bill herewith reported is designed to re-
store constitutional practices which have been permitted to atrophy
and, as a matter of necessity and propriety under Article 1 of Section
8, "to carry into execution" both the war powers of Congress and those
of the President in his capacity as an Officer of the Government of
the United States. Professor Bickel commented : "Nothing in the Con-
stitution does or can empower Congress to do something unconstitu-
tional, but much in the Constitution needs to be clarified or imple-
mented, and except in`the limited number of instances where exclusive
power is specifically vested elsewhere, the necessary and proper clause
authorizes Congress to do so, with respect to its own functions as well
as those of the other branches of the federal government." 40
In his statement before the Committee, Secretary Rogers said he
opposed war powers legislation because, in his view, it would attempt
to fix in detail, or "freeze," the allocation of power between the Presi-
dent and Congress, and because such legislation would "narrow the
power given the President by the Constitution." The exercise of the
war powers, the Secretary emphasized, was consigned to the "political
process" in a constitutional system "founded on the assumption of co-
operation rather than conflict." 41
The Committee is obliged to contest the Secretary's argument in
all its major specifications. First of all, far from attempting to "freeze"
the allocation of war powers between the President and Congress, the
bill, through the emergency procedures spelled out in Section 3, allows
of action by the President under almost any conceivable genuine na-
tional emergency, so much so, in fact, that some members of the Com-
mittee have expressed apprehension that Section 3 may go too far in
the President's direction.
Second, as already noted, the bill would in no :respect, "narrow the
power given the President by the Constitution;" it does indeed pur-
port to delineate. Presidential power, but only because that power in
recent practice has extended far beyond the confines of the Constitu-
tion.
Third, the Committee reiterates its view that the Constitution is not
at all imprecise in allocating the, war powers ; on the contrary, the Con-
stitution is quite specific-as the framers intended it to be-in giving
Congress the authority to decide on going to war and in giving the
President the authority, as Commander-in-Chief, to respond to an
emergency and to command the armed forces once a conflict is under-
as "War Powers" (1972). P. 480.
.a "war Powers Legislation" (1973), p. 52.
4" "War Powers Legislation" (1973), p. 20.
41 "War Powers," (1972), p. 498.
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way. In brief, the Constitution gave Congress the authority to take
the nation into war, whether by formal declaration of war or by other
legislative means, and the President the authority to conduct it.
There has grown up in recent decades a conception of what is re-
quired for a "strong Presidency" which the Committee finds disturb-
ing. According to this school of thought, a "strong President" is not
one who strengthens and upholds our constitutional system as a whole
but one who accumulates and retains as much power as possible in the
Presidential office itself. This outlook appears to have been an impor-
tant factor in influencing recent Presidents to claim authority as
Commander-in-Chief far exceeding the specifications and intent of the
Constitution. It appears too to have been it factor in encouraging
executive branch officials to invoke dubious past instances of foreign
military operations undertaken by the President without Congres-
sional approval-as if one act of usurpation legitimized another. A
leading American historian, Thomas A. Bailey, has written:
The bare fact that a President was a strong one, or a dom-
ineering one, does not necessarily mean that he was a great
one or even a good one. The crucial questions arise : Was he
strong in the right direction? Was he it dignified, fair, con-
stitutional_ ruler, serving the ends of democracy in it demo-
cratic and ethical manner? 42
In the perspective of American history since WWrorld War IT, the
war powers bill must be perceived as necessary legislation which
should not have been necessary. It would not have been necessary
if Congress had defended and exercised its responsibility in matters
of war and peace and so prevented the Executive from expanding its
power in that "zone of twilight" of which Justice Jackson spoke.
The framers of the Constitution vested the war power in the Con-
gress not primarily because they felt confident that the legislature
would necessarily exercise it more wisely but because they expected
the legislature to exercise it more sparing7iy than it had been exercised
by the Crown, or would be likely to be exercised by the President as
successor to the Crown. The framers, it would appear, were concerned
with the way in which war would be initiated in making certain that
it would not be initiated easily, capriciously, or often.
In this regard, Abraham Lincoln once wrote:
The provision of the Constitution giving the warmaking
power to Congress, was dictated, as I understand it, by the
following reasons. Kings had always been involving and im-
poverishing their people in wars, pretending generally, if not
always, that the good of the people was the object. This, our
Convention undertook to be the most oppressive of all Kingly
oppressions, and they resolved to so frame the Constitution
that no one man should hold the power of bringing this op-
pression upon us.
Whether and to what degree we might have avoided the war in
Indochina is an issue outside of the scope of this Report. It is men-
42""Tbomas A. Bailey, Presidential Greatness (New York : Appleton-Century, 1966), p. 227.
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tioned here only in connection with the Committee's general belief
that, in the long run, even the best conceived legislation for the reas-
sertion of Congressional prerogative will not in and of itself prove
sufficient to the maintenance of constitutional democracy in America.
As Professor Kelly observed, war and peace in the American consti-
tutional system and in the American value system are separate and
distinct; and as Tocqueville observed, war breeds dictatorship. Strong-
ly though it endorses'the bill herewith reported, the Committee does
not deceive itself that~this bill, if enacted, will of itself restore checks
and balances in matters of the war power. If the country is to be con-
tinually at war, or in crisis, or on the verge of war, or in small-scale,
partial or surrogate war, the force of events must lead inevitably to-
ward executive domination despite any legislative roadblocks that may
be placed in the executive's way. During the Constitutional Conven-
tion, James Madison, often regarded as "father of the Constitution," at
one point moved to authorize two-thirds of the Senate to make treaties
of peace without the concurrence of the President.. Although his motion
was withdrawn, his argument for introducing it is instructive. "The
President," he said, "would necessarily derive so much power and im-
portance from a state of war that he might be tempted, if authorized,
to impedea treaty of peace."
Congress, in the Committee's view, can take no more useful and
needed step toward the restoration of constitutional balance than to
enact legislation to confirm and codify the intent of the framers of
the Constitution with respect to the war power. The President, as
Professor Bickel and as Mr. George Reedy, formerly of the White
House staff, pointed out in their testimony before the Committee in
1971, is in many respects a remote and almost royal figure, shielded
frou-i direct personal participation in the adversary politics of democ-
racy. "Tinder the American system," as one political scientist points
out, "the executive is virtually prevented from engaging in public
debate on policy by the institutional setting of his office ; under the
British system he is expected and, in fact, compelled to engage con-
tinually in it."" The processes through which the President reaches
decisions are largely personal and private, beyond the reach of direct
institutional accountability.
Congress, on the other hand, makes its decisions almost entirely in
the open and under public scrutiny. The President is subject to quad-
rennial plebiscite, but Congress provides the American people with
points of access through which they can hold their Government to
day-to-day account and thereby participate in it. Inefficient and short-
sighted though it sometimes is, Congress provides the only feasible
nieaii;i ender the American constitutional system of drawing the Presi-
dent, at least indirectly, into the adversary processes of democracy.
The executive branch is endowed with organizational discipline and
legions of experts, but Congressmen and Senators have a unique asset
when it comes to playing an effective, democratic role in the making
of foreign policy : the power to speak and act freely from an independ-
ont political base.
Tine point the. Committee wishes to stress is not that the President-
tlie one now in office or any other-is an untrustworthy person but that
all men wielding power must, in the interest of freedom, be treated
a? Alexander J. Grath, "Britain and America: Some Requisites of Executive Leadership
Compared," Political,S- ienee'Quarterly, June 1970, p. 218.
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with a certain mistrust. "Confidence," said Jefferson, "is everywhere
the parent of despotism-free government is founded in jealousy; .
it is jealously and not confidence which prescribes limited constitutions
to bind down those we are obliged to trust with power . . . In ques-
tions of power, then, let no more be heard of confidence in man, but
bind him down from mischief by the chains of the Constitution... 44
The Committee believes that the adoption of the war powers bill
would help to restore the confidence of the American people in the
processes of their government, particularly as they relate to the ques-
tions of war and peace. As Senator Stennis, a principal cosponsor of
the bill, said in his testimony : "... I believe the overriding issue is
that we must insure that this country never again go to war without
the moral sanction of the American people. This is important both in
principle and as practical politics. Vietnam has shown us that in trying
to fight a war without the clear-cut prior support of the American
people we not only risk military ineffectiveness but we also strain the
very structure of the Republic.
EXPLANATION OF THE BILL
The provisions of this bill govern the use of the armed forces : "In
the absence of a declaration of war by the. Congress." In this bill we are
dealing with undeclared wars-wars which have come to be called
Presidential wars because the constitutional process of obtaining Con-
gress] onal authorization has been short-circuited.
Section 1 of the bill contains its short title-the "War Powers Act.
Section 2 is a self-explanatory short statement of "Purposes and
Policy," stressing the intention to ". . . insure that the collective judg-
ment of both the Congress and the President will apply to the intro-
duction of the Armed Forces of the United States in hostilities, or
in situations where imminent involvement in hostilities is clearly indi-
cated by the circumstances ..."
Section 3 consists of four clauses which define the conditions or
circumstances under which, in the absence of a Congressional declara-
tion of war, the armed forces of the United States "may be introduced
in hostilities, or in situations where imminent involvement in hostili-
ties is clearly indicated by the circumstances."
The first three categories are codifications of the emergency powers
of the President, as intended by the Founding Fathers and as confirmed
by subsequent historical practice and judicial precedent. Thus, sub-
secteions (1), (2), and (3) of section 3 delineate by statute the implied
power of the President, in his concurrent role as Commander-in-Chief,
with respect to emergency use of the armed forces.
The authority of Congress to make this statutory delineation is
contained in the enumerated war powers of Congress in article I, sec-
tion 8 of the Constitution, and especially in the final clause of article I,
section 8, granting to Congress the authority :
To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof.
sity 44 Prose In A. T. .3M1 son, Free Government in the Making. (New York : Oxford Univer-
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22
Subsection (1) of section 3 confirms 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 forestall the
direct and imminent threat of such an attack;"
It should be noted that this subsection authorizes the President not
only to repel an attack upon the United States and to retaliate but
also "to forestall the', direct and imminent threat of such an attack."
The inclusion of these words grants a crucial element of judgment and
discretion to the President. While it was thought by some that the
power to "forestall" vas inherent in the power to "repel," it was decided
expressly to include the forestalling power to avoid any ambiguity
domestically or in the eyes of any potential aggressor .45
While the President clearly must apply his discretion and judgment
to the implementation of this authority, it is by no means a "blank
check." For the President to take forestalling action, the threat of
attack must be "direct and imminent." Moreover, he must justify his
judgment on this point under the mandatory reporting provisions con-
tained in section 4.
Subsection (2) further defines the emergency power of the Presi-
dent : "to 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; .. "
The authority contained in this subsection recognizes the right, and
duty, of the Commander-iii-Chief to protect armed forces deployed
outside the United States. Just as the President would not have to wait
until the bombs actually started landing on our soil to act against an
attack upon the United States, similarly our forces would not have to
wait until enemy bullets and mortars flit them before they could react.
Nonetheless, it will he noted that the power to repel attacks upon the
armed forces located outside the United States is less comprehensive in
one respect than the power to repel attacks upon the United States
itself. While the subsection contains the authority to repel and. fore-
stall, it does not, include the separate and broader power to retaliate.
The wording of this provision is meant to retain safeguards against
wider embroilment resulting from incidental attacks upon U.S. forces,
or attacks resulting from questionable actions by local U.S. com-
manders. Thus, for instance, an attack upon a Marine Guard at an
Embassy would not trigger in authority to retaliate by seizing the
country. Likewise, for instance, a sneak attack on security guards at
one of our airbases would not trigger an authority to retaliate by
launching search and destroy missions.
aaIn Martin v. Mott (12 Wheat.) 18, 29 (1827), Justice Story speaking for the Supreme
Court affirmed the constitutional authority of Congress to "provide for cases of imminent
danger of invasion." He stated further : "In our opinion, there is no ground for a doubt on
this point, . . for the power to provide for repelling invasions includes the power to
provide against the attempt and danger of invasion, as the necessary and proper means to
effectuate the object."
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Subsection (3) codifies the authority of the President to rescue
United States citizens and nationals abroad and on the high seas. By
defining the circumstances and procedures to be followed, this subsec-
tion is a conscious movement away from some of the excesses of nine-
teenth century gunboat diplomacy.
The tightly worded language of this provision grants the President
the authority only to rescue endangered American citizens. Ile may
not use the circumstance of their endangered position to pursue a pol-
icy objective beyond safe and expedient evacuation. Even before the
President can take action under subsection (3) he must ascertain that
the government of the country in question is either incapable of pro-
tecting Americans or is itself presenting a threat to them.
NATIONAL COMMITMENTS
Subsection (4) is perhaps the most significant part of the bill. For,
while subsections (1), (2), and (3) codify emergency powers of the
President as Commander-in-Chief, section 3 (4) deals with the delega-
tion by the Congress of additional authorities which would accrue to
the President as a result of statutory action by the Congress and which
he does not, or would not, possess in the absence of such statutory
action.
The key phrase in this subsection is contained in its initial five
words: "pursuant to specific statutory authorization." The rest of the
subsection is an explanation, elaboration and definition of the meaning
(for the purposes of the bill) of the words "pursuant to specific statu-
tory authorization." In an important sense, this subsection gives legis-
lative effect to S. Res. 85, the National Commitments Resolution
adopted by the Senate on June 25, 1969 by a vote of 70 to 16 which
states : "that a national commitment by the United States to a foreign
power necessarily and exclusively results from affirmative action taken
by the executive and legislative branches of the United States Govern-
ment through means of a treaty, convention, or other legislative instru-
mentality specifically intended to give effect to such a commitment."
The significance of subsection (4) is multiple. First, it establishes
a mechanism by which the President and the Congress together can
act to meet any contingency which the Nation might face.
There is no way to legislate national wisdom, but subsection (4)
does provide important protection to the American people by requiring
that the Congress as well as the President must participate in the
critical decision to authorize the use of the Armed Forces of the United
States in hostilities, other than hostilities arising from such "defen-
sive" emergencies as an attack upon the United States, our armed
forces abroad, or upon U.S. citizens abroad in defined circumstances.
It provides as much flexibility in the national security field as the wit
and ingenuity of the President and Congress may be jointly capable
of constructing.
There is a clear precedent for the action anticipated in subsection
(4)-the "area resolution." Over the past two decades, the Congress
and the President have had considerable experience with area reso-
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lutions---some of it good and some quite unsatisfactory. In its mark-up
of the war powers bill, the Foreign Relations Committee considered
this experience carefully in approving the language of subsection (4).
The wording of the final clause of subsection (4) holds the validity of
three area resolutions currently on the statute books. These are : the
"Formosa Resolution" (H.J. Res. 159 of January 29, 1955) ; the
"Middle East, Resolution" (II.J. Res. 117 of March 9, 1957, as
amended) ; and the "Cuban Resolution" (S.J. Res. 230 of October 3,
1962).
The question may be asked : What is to guard against the passage
of another resolution of the Tonkin Gulf type? The answer is that any
futu re area resolutions, to qualify under this bill as a grant of author-
ity to introduce the armed forces in hostilities, or in situations where
inuninent involvement in hostilities is clearly indicated by the circum-
stances, must meet certain carefully drawn criteria-as spelled out in
the language of subsection (4). The pertinent language is:
unless such provision specifically authorizes the intro-
duction of such firmed Forces in hostilities or in such situa-
tion and specifically exempts the introduction of such Armed
Forces from compliance with the provisions of this Act .. .
In other words, any future area resolution must be a specific grant
of authority which would contain a direct reference to the bill now
under discussion. The' phrase "exempts ... from compliance with the
provisions of this Act" is includede to insure that the precise inten-
tion of the grant of authority is clearly established with reference to
the War Powers Act.. The exemption could of course establish other
procedures-or it could reaffirm all, or part, of the provisions of S. 440.
The bill thus allows for as much flexibility with respect to handling of
any developing crisis or suddent emergency as the Congress and the
President may jointly' deem prudent.
Following the passage of this bill, Congress would have to review
closely the three area `resolutions which are left standing by the pro-
vision of subsection (4), and the Administration should review the
world situation carefully and take the initiative in coming to the Con-
gress with recommendations respecting the existing area resolutions-
as well as recommendations for any new ones which the President
might feel are neded for our national securty.
Requests for new authority pursuant to subsection (4) do not qualify
for the "Congressional Priority Provisions" contained in. section 7.
However, it is contemplated that Congressional consideration of new
subsection (4) grants of authority can geenrally be undertaken in the
absence of an imminent threat or emergency in a deliberative way, in-
cluding Committee hearings. The point here is to obviate a repetition
of the unfortunate experience of the Congress with the Tonkin Gulf
Resolution. which it was later realized went through the Congress with-
out enough inquiry in the respective Committees and in the related
floor debate.
RENEWING CLOSE CONSULTATION
Last minute "crunches" can be avoided by a renewal of the earlier
practice of continuing close consultation between the Executive branch
and the relevant committees of Congress. The Executive would be
obliged to make the Congress, again, its partner in shaping the broad,
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basic national security and foreign policy of the Nation well in ad-
vance of the exercise of the war power.
CONGRESSIONAL AUTHORITY AND PRESIDENTIAL FLEXIBILITY
Some have argued that seeking Congressional authority to use the
armed forces with respect to developing crisis situations would deprive
the President of flexibility-or introduce ambiguity-in the, conduct of
foreign policy during crisis situations. It is said that the President
would have to "telegraph his punches" and thus remove surprise from
his diplomatic arsenal.
However, the President would not be compelled or obliged to use the
armed forces just because the Congress granted him the authority to
do so. Moreover, this legislation would not inhibit the President's
capacity to deploy the armed forces, i.e., to move elements of the fleet
in international waters. To give a specific example, there is nothing in
the bill which would have affected the President's decision to move
elements of the Sixth Fleet into the eastern Mediterrean during the
1970 Jordanian crisis. The right of United States naval forces to oper-
ate freely anywhere in international waters would not be abridged
by this bill.
An important provision of subsection (4) is contained in its first
qualifying clause (A). The purpose of this clause is to counteract the
opinion in the Orlando v. Laird decision of the Second Circuit Court
holding that passage of defense appropriations bills, and extension of
the Selective Service Act, could be construed as implied Congressional
authorization for the Vietnam war.ie
One of the most far-reaching aspects of subsection (4) is its pro-
visions respecting treaties. Throughout the past two decades there has
been continuing confusion respecting a crucial phrase that is standard
in our nation's collective and bilateral security treaties; to %vit, that
implementation of such treaties, as to involvement of U.S. forces in
hostilities, will be in accordance with the "constitutional processes" of
the signatories.-
46 Judicial opinion has shifted on this point. In Mitchell v. Laird (D.C. Cir. No. 71-1510
!larch 20, 1973) Judge Wyzanshi speaking for the Court of Appeals stated : "This court
cannot be unmindful of what every schoolboy knows: than in voting to appropriate money
or to draft men a Congressman is not necessarily approving of the continuation of a war
no matter how specifically the appropriation or draft act refers to that war. A Congressman
wholly opposed to the war's commencement and continuation might vote for the military
appropriations and for the draft measures because he was unwilling to abandon without
support men already fighting. An honorable recent, compassionate act of aiding those
already in peril is no proof of consent to the actions that placed and continued them in that
dangerous posture. We should not construe votes east in pity and piety as though they were
votes freely given to express consent. Hence Chief Judge Bazelon and I believe that none of
the legislation drawn to the court's attention may serve as a valid assent to the Vietnam
war.
47 In Its Report on 1949 to the Senate recommending approval of the North Atlantic
Treaty, the Foreign Relations Committee stated : "The committee wishes to emphasize the
fact that the protective clause 'in accordance with their respective constitutional processes'
was placed in article 11 in order to leave no doubt that it applies not only to article 5, for
example, but to every provision in the treaty. The safeguard is thus all-inclusive.
"The treaty in no way affects the basic division of authority between the President and
the Congress as defined in the Constitution. In no way does it alter the constitutional rela-
tionship between them. In particular, it does not increase, decrease, or change the power
of the President as Commander-in-Chief of the armed forces or impair the fall authority of
Congress to declare war." (Senate Executive Report No. 8, 81st Congress, 1st Session,
p. 18)
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In an important sense, subsection (4) defines "constitutional proc-
esses" for the first time, as it relates to treaty implementation by the
United States. The definition of "constitutional processes" respecting
treaty implementation is both negative and positive.
Subsection (4) makes a finding in law that no U.S. security treaties
can be considered self-executing in their own terms. With respect to
existing treaties the bill states :
No treaty in force at the time of the enactment of 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 .. .
Additionally, the subsection states that authorization for intro-
ducing the armed forces in hostilities shall not be inferred.
from any treaty hereafter ratified unless such treaty is
implemented by legislation specifically authorizing the intro-
duction of the Armed Forces of the United States in hostilities
or in such situation and specifically exempting the introduc-
tion of such Armed Forces from compliance with the provi-
sions of this Act.
It is important to bear in mind that these provisions with respect to
treaties must be considered in conjunction with the authority of the
President in subsections (1), (2), and (3). The authority contained
in those subsections is in no way abridged or diminished by the provi-
sions on treaties per se.
Moreover, as the language of the subsection makes clear, the bill
envisages the adoption of treaty implementation legislation, as deemed
appropriate and desirable by the Congress and the President. Such
implementating legislation would constitute the authority "pursuant
to specific statutory authorization" called for by subsection (4).
There are two principal reasons for including these provisions with
respect to our collective and bilateral security treaties. First, is to
ensure that both Houses of Congress must be affirmatively involved in
any decision of the United States to engage in hostilities pursuant to a
treaty. Treaties are ratified by and with the consent of the Senate. But
the war powers of Congress in article I, section 8 of the Constitution
are vested in both Houses of Congress and not in the Senate (and
President) alone. A decision to make war must be a national decision.
Consequently, to be truly a national decision, and, most importantly,
to be consonant with the Constitution, it must be a decision involving
the President and bothHouses of Congress.
Second, the provisions with respect to treaties are important so as
to remove the possibility of future contention such as arose with respect
to the SEATO Treatyi and the Vietnam war.
Treaties are not self-executing. They do not contain authority within
the meaning of section13 (4) to go to war. Thus, by requiring statutory
action, in the form of implementing legislation or an area resolution
of the familiar type, the War Powers Act would perform the im-
portant function of defining that elusive and controversial phrase-
"constitutional processes"-which is contained in our security treaties.
Subsection (4) contains one additional important provision. It
states :
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command, coordinate, participate in 77 movement oV of, or,
accompany the regular or irregular military forces of any for-
eign country or g ,erJBnent when suclk forces are engaged, or
its imminent threat that suc far 11 become
en-0ga , in hostilities.
The purpose of this provision is to prevent secret, unauthoriz mil-
itary support activities and to prevent a repetition of many of the ost
controversial and regrettable actions in Indochina. The ever deep -
ing ground combat involvement of the United States in South Vi -
nam began with the assignment of U.S. "advisers" to accompa y
South Vietnamese units on combat patrols; and in Laos, secretly a d
hout Congressional authorization, U.S. "advisers" weredeeply aa7lKin the war in northern Laos.
Section 4 requires the President to report "promptly" in writing to
both Houses of Congress any use of the armed forces covered by sec-
tion 3 of the bill. The provisions of this section are clear and simple.
In his report to Congress, the President is required to include "a full
account of the circumstances under which ... [he has acted] ... the
estimated scope of such hostilities or situation, and the consistency of
the introduction of such forces in such hostilities or situation
with the provision of section 3 of this Act."
In addition, the President is required to make periodic, additional
reports so long as the armed forces are engaged in circumstances gov-
erned by section 3. Such additional reports shall be submitted at least
every six months.
It will be noted that the President is required to report "promptly."
This word has been used in preference to "immediately" or a possible
specific time limit such as 24 hours. The important thing is that the
report must be prompt but it must also be comprehensive. It might
take a few days for the executive branch to assemble all the facts and
reports from the field, as well as to assemble the various intelligence
reports and, most importantly, to prepare an informed judgment on
the "estimated scope of such hostilities."
What is intended is a full and accurate report of events, combined
with an authoritative statement by the President of his judgment
about the direction in which the situation is likely to develop. The
Congress can act intelligently and responsibly only when it has the
necessary information at hand.
The reporting requirements of the bill apply independently of the
provisions of sections 5, 6', and 7. The President's mandatory report is
not to be considered a request for an extension of authority as might
be granted subsequently under section 5. Such a request can only be
introduced by a member of Congress.
Moreover, it is entirely possible that even a majority of the actions
taken under the President's direction pursuant to section 3 full will be
short-lived, one-shot actions completed well within the thirty-day time
period, and thus requiring no extension in time of the authority
spelled out in section 3.
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Section 5 (along with section 3) is the heart and core of the bill. It
is the crucial embodirncnt of Congressional authority in the war powers
field, based on the mandate of Congress enumerated so comprehensively
in article I, section 8 of the Constitution. Section rests squarely and
securely on the words, meaning and intent of tare Constitution andriis
represents, in an. historic sense, a restoration of the constitution bal-
ance which has been distorted by practice in our history and, climati-
cally, in recent decades.
Section 5 provides that actions taken under the provisions of sec-
tion 3: "shall not be sustained beyond thirty days from the date of the
introduction of such Awned Forces in hostilities or in any such situa-
tion unless (1) the President determines and certifies to the Congress
in writing that unavoidable 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 hostilities; or (2) Congress is physically ruiable to meet as a re-
suit of an armed attack u Fon the United States; or (3) the con-
tinued use of such Armed Forces in such hostilities or in such situa-
tion has been authorized in specific legislation enacted for that pur-
pose by the Congress, and pursuant -to the provisions thereof."
Section 5 resolves the modern dilemma of reconciling the need of
speedy and emergency action by the President in this age of ins6m-
taneous comtilunications and of intercontinental ballistic missiles with
the urgent necessity for Congress to exercise its constitutional man-
date and duty with respect to the great questions of war and peace.
Tlie choice of thirty`days, in a sense, is arbitrary. However, it clearly
appears to be an optimal length in time with respect to balancing two
vital considerations. First, it is an important objective of this bill to
bring the Congress, in the exercise of its constitutional war powers,
into any situation involving I ".S. forces in hostilities at an early enough
moment so that Congress's actions can be meaningful and decisive in
terms of a national decision respecting the. carrying on of war. Second,
recognizing the need for emergency action, and the crucial need of
Congress to act with sufficient deliberation and to act on the basis of
full information, thirty days is a time period which strikes a balance
enabling Congress to net meaningfully as well as independently.
It should be noted further, that the thirty-day provision can be ex-
tended as Congress sees fit-or it can be foreshortened under section 6.
The way the bill is constructed, however, the burden for obtaining an
extension under section 5 rests on the President. He must obtain spe-
cifie, affirmative, statutory action by the Congress in this respect. On
the other hand, the burden for any effort to foreshorten the thirty-
day period rests witlr;the Congress, which would have to pass an act
or joint resolution to, do so. Any such measures to foreshorten the
thirty-day period would have to reckon with the possibility of a
Presidential veto, as leis signature is required, unless there is sufficient
Congressional support to override a veto with a two-thirds majority.
The issue has been raised quite properly, as to what would happen If
our forces were still engaged in hot combat at the end of the thirtieth
day---and there had been no Congressional extension of the thirty-
day time limit. The answer is that, as specified by clause (1), the
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President would not be required or expected to order the troops to
Jay down their arms.
The President would, however, be under statutory compulsion to
begin to disengage in good faith to meet the thirty-day time limit. He
would be under the injunction placed upon him by the Constitution,
which requires of the President that : "he shall take care that the laws
be faithfully executed."
The wording of Section 5 (1) is very specific and tightly drawn. It is
to be emphasized that Section 5 (1) is in na sense to be construed as a
loophole giving the President discretionary authority with respect to
the thirty-day disengagement requirement. It is addressed exclusively
to the narrow issue of the security of our forces in the process of prompt
disengagement. The criterion involved is the security of forces under
fire and it does not extend to withdrawal in conformity with some
broader strategy or policy objective. No expansion of the thirty-day
time frame is conveyed other than a brief period which might be re-
quired for the most expeditious disengagement consistent with security
of the personnnel. engaged. Moreover, it requires the President's certifi-
cation in writing that any such contingency had arisen from "unavoid-
able military necessity."
Section 5(2) provides for suspension of the thirty-day disengage-
ment requirement in the event "Congress is physically unable to meet
as a result of an armed attack upon the TTiiited States."
The question has been raised whether there can or should be any
time limitation on the President's emergency authority to repel an at-
tack upon the United States and take the related measures specified in
Section 3(1). The bill rejects the hypothesis that the Congress, if it
were physically able to meet, might not support fully all necessary
measures to repel an attack upon the nation. Refusal to act affirma-
tively by the Congress within the specified time period respecting
emergency action to repel an attack could only indicate the most se-
rious questions about the bona fides of the allleged attack or imminent
threat of an attack. In this context, the admonition articulated in 1848
by Abraham Lincoln is most pertinent.
Allow the President to invade a neighboring nation, when-
ever he shall deem it necessary to repel an invasion, and you
will allow him to do so, whenever he may choose to say lie
deems it necessary for such purpose-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 yon 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.
Section 5 (3) provides for : "the continued use [beyond thirty davsl
,of such armed forces in such hostilities or in such situation [provided
it] has been authorized in specific legislation enacted for that purpose
by the Congress and pursuant to the provisions thereof." It its to be
noted that authorization to continue using the Armed Forces is to
come in the form of specific statutory action for this purpose. This is
to avoid any 'ambiguiti.es such as possible, efforts to construe general
-a ppropriatioils or other such measures as constituting the necessary
authorization for "continued use." Moreover, just as the Congress
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under the Constitution is not intended to be under any obligation to
declare war against its own better judgment so under Section 5(3)
of the war powers bill there is no presumption, or obligation, upon
the Congress to enact legislation for the continued use of the armed
forces, as covered by the bill, except as it is persuaded by the merits of
the case presented to it, and consequent to appropriate reflection and
due deliberation.
It is further to be ;noted that any "continued use" which might be
authorized by the Congress must be "pursuant to the provisions" of
such authorization. The Congress is not faced with an all or nothing
situation in considering authorization for "continued use." It can
establish new time limits, provisions for further review by the Con-
gress, as well as other limits and stipulations within the ambit of the
constitutional powers of the Congress.
TERMINATION PRIOR TO 30 DAYS
Section 6 provides that the Congress can, through statutory action,
foreshorten the thirty-day provisions of Section 5. In such instances,
the President is protected by his veto power regarding the basic thirty-
day emergency period specified to him with respect to the authorities
contained in section.3. Clearly, effective Congressional action under
section 6 would be likely in extraordinary circumstances wherein
two-thirds of both Houses of Congress were convinced that the Presi-
dent had acted against the national interest or with great improvi-
dence. Just as the burden of proof lies with the President to persuade
that, his use of the armed forces under section 3 merits prolongation
in the national interest beyond thirty days, the burden of proof, in
effect, lies with the Congress to foreshorten the thirty-day period.
PRIORITY CONSIDERATION
Section 7 establishes procedures to assure priority action in Con-
n-rss to consider legislation to extend under section 5, or to foreshorten
under section 6, the thirty-day time limit. The provisions of section 7
are, thus, a safeguard against the possibility that Congressional action
wit Ii respect to such. measures could be obstructed or relayed through
a filibuster or committee pigeonholing. Section 7 also provides that
the respective Houses of Congress can modify the priority considera-
tion provisions by majority vote. In this way, provision is made for a
majority of either House to determine by yeas and nays an alternative
procedure-for instance, directing a committee to hold hearings and
report back by a certain date. Section 7 is shaped so as to assure that
control of the consideration of legislation to extend or foreshorten the
thirty-day period is in the hands of the majority and that a minority
cannot obstruct the will of the majority in this respect through pro-
cedural means. It should be noted that requests for statutory authoriza-
tion under section 3(4) do not qualify for the priority consideration
provisions of section 7 as explained above.
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Section 8 contains a standard separability clause which simply pro-
vides that if any provisions of the bill should be hold invalid, this
would not effect the validity of the rest of the bill.
Section 9 has two parts. The first part makes clear that the, bill is not
ex post facto legislation respecting the Vietnam war. The second part
makes clear that the provision of section 3 (4) would not require, for
instance, the withdrawal of U.S. military personnel from NATO com-
mand headquarters in the event that forces of other NATO nations
became engaged in hostilities unrelated to NATO, or in hostilities: in
which the introduction of U.S. forces were not authorized under sec-
tion 3(1), 3(2), or 3(3) of this Act or by other specific statutory ac-
tion of the Congress. However, in the absence of specific statutory au-
thorization members of the U.S. armed forces pursuant to section 3 (4)
could not by reason of the NATO Treaty "command, coordinate, par-
ticipate in the movement of, or accompany" the regular or irregular
forces of a NATO country engaged in hostilities.
The "high-level military commands" referred to in this section are
understood to be those of NATO, the North American Air Defense
command (NORAD) and the United Nations command in Korea
(UNC) .
The overall purposes of the War Powers Act are to codify the
"emergency" powers of the Commander-in-Chief, in the absence of a
declaration of war, to introduce the armed forces of the United States
in hostilities, or in situations where imminent involvement in hostilities
is clearly indicated by the circumstances, and, very 'importantly, to es-
tablish a methodology to assure that Congress is not foreclosed by the
practice of undeclared war from exercising its constitutional responm
sibilities respecting the awesome decision of putting the nation at war.
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SUPPLEMENTAL VIEWS OF J. W. FIJLI3RIGHT
Although the intent of the bill herewith reported is unexceptionable,
it seems to me that the bill could be improved in several respects.
The first problem lies with Section 3, which catalogues 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 executive prerogative, especially in allowing
the President to take action not only to "repel an armed attack" 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 construed as sanctioning a pre-emptive,
or first strike, attack solely on the President's own judgment. Should
the President initiate such a pre-emptive attack, the thirty-day limita-
tion provided for in Sections 5 and 6 of the bill might prove to be in-
effective, or indeed irrelevant, as a Congressional check on the Pres-
ident-all the more for the fact, which will be elaborated later that
the 30-day limit on Presidential discretion is by no means absolute.
The provisions authorizing the President to "forestall the direct and
imminent threat" of an attack could 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.
In their memorandum on war powers legislation the Lawyers Com-
mittee on American Policy Toward Vietnam renii.uded the Foreign
Relations Committee that the classical language used to describe the
basic power of the Commander-in-Chief to engage in hostilities in the
absence of Congressional authorization is as follows : "to repel a sudden
attack against the United States, its territories and possessions." This
language is much more restrictive than that contained in paragraphs
1 and 2 of Section 3 of the Committee bill, which, in their extensive-
ness, may have the unintended effect of giving away more power than
they withhold. In the view of the Lawyers Committee, the extension
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. Besides a "sud.den attack" on United States territory, the
only other circumstances identified by the Lawyers Committee as war-
ranting 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 lives of American citizens
abroad, the latter of which would justify only a brief military oper-
ation for purposes of evacuation.
The bill appears to me to deal satisfactorily in paragraph (3) of
Section 3 with the matter of protecting the lives of Americans abroad;
it goes too far in paragraphs (1) and (2), however, in allowing of dis-
cretionary Presidential action to "forestall the direct and imminent
threat" of an attack on the territory or armed forces of the United
States.
(33)
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Rather than spell out what amounts to Presidential discretion to
mount a pre-eruptive attack, I am inclined toward a simple abbrevi-
ated provision allowing of emergency use of the armed forces by the
President. Alternately, there may be merit in simply abstaining from
the attempt to codify the President's emergency powers, which is the
approach of Congressman Zablocki's bill, ILJ. Res. 542, favorably
reported by the House Foreign Affairs Committee on June T. In
practice, it is exceedingly difficult, as the Committee has found, to
draw up a list of emergency conditions for Presidential use of the
armed forces which does not become so long and extensive a catalogue
as to constitute a de facto grant of expanded Presidential authority.
The list of condition-, spelled out in Section 3 of the 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 appre-
hensive. that the very comprehensiveness and precision of the con-
tingencies listed in Section 3 may be drawn>, upon by future Presidents
Io explain or justify military initiatives which would otherwise be
difficult to explain or justify.'-,N- future President. 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!arn much inclined either to say nothing about the
President's emer?gency powers as in the Zablocki bill, or to include a
simlrle 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 Congressional
authorization. This approach too has its dangers allowing as it would
of irresponsible or extravagant interpretation, but at least it would
place the burden of accountability squarely upon the President, where
it belongs, and it would also of course be restricted by the thirty-day
limitation specified in Sections 5 and 6 of the bill.
I7nder the language of paragraphs (1), (2) and (3) of Section 3 of
the bill the executive could cite, fairly specific authority for the widest
possible range of military initiatives. Under the simpler, more general
approach I propose, the President would remain free to act but with-
out the prop of specific authorization; he would have to act entirely
on h is own responsibility, with no advance assura:ace of Congressional
support. A prudent and conscientious President, under these circum-
stances, would hesitate to take action that he (lid not feel confident he
could defend to the Congress. He would remain accountable to Congress
for his action to a greater extent than he would if he had specific au-
thorizing language to fall back upon. Congress, for its part, would
retain its uncompromsed right to pass judgment upon any military
initiative taken without its advance approval. 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
members of Congress as well as with his personal 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
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of power, would in practice be more restrictive and inhibiting than the
specific grants of emergency power spelled out in paragraphs (1),
(2) and (3) of Section 3 of the bill. Alternately, the same objective
could be achieved by simply leaving out any attempt to codify the
President's emergency powers, which is the approach of the House
Committee bill.
A related consideration, called to the attention of the Committee by
the Federation of American Scientists, is the danger of a President, on
his own authority, escalating conventional hostilities into it nuclear
war. The United States has not, like the People's Republic of China,
announced that it will never make first use of nuclear weapons. Ac-
cordingly, the Federation of American Scientists proposes that Con-
gress require the President to secure its consent before using nuclear
weapons except in response to their use or irrevocable launch by an
adversary. So enormous is the significance of nuclear war that the
conversion of any conventional conflict into a nuclear conflict cannot
realistically be considered a mere change of tactics in a continuing
conflict. In effect, the introduction of nuclear weapons would constitute
the beginning of a whole new war. This being the case, I concur wholly
with the Federation of American Scientists that Congress must retain
control over the conventional or nuclear character of a war.
Paragraph 4 of Section 3 of the Committee bill, spelling out the con-
ditions for use of the Armed Forces "pursuant to specific statutory
authorization," seems to me to be well and carefully drafted in its pres-
ent form. I recommend its retention in Section 3 revised along one
or the other of the lines suggested above. One feasible approach is
that of the Zablocki bill, although that will not take account of the
matter of first use of nuclear weapons. Another possible approach is
the substitution of the following for the introductory clause and first
three paragraphs of Section 3 of the Committee bill (page 2, line 22,
through page 4, line 3) :
Section 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 citi-
zens or nationals when the necessity to respond to such act
or situation in his judgment constitutes a national emer-
gency of such a nature as does not permit advance con-
gressional authorization to employ such forces; but, ex-
cept in response to a nuclear attack or to an irrevocable
launch of nuclear weapons, the President may not use
nuclear weapons without the prior, explicit authorization
of the Congress; or.
A most serious problem arises in connection with Section 5, 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
exception 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 Congressional
authorization, if the President determines that "unavoidable military
necessity respecting the safety of the armed forces" requires their con-
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tined Ilse for purposes of "bringing about a prompt disengagement"
from hostilities. In this connection, it will be recalled that President
Nixon nprolonged the Vietnam war for four years tinder 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 superior inas-
much as it allows of no, such escape clause. Section 4 (b) of the bill
approved by the House Foreign Affairs Committee states simply that,
within the 120-day emergency period specified in the House bill, "the
President shall terminate any commitment and remove any enlarge-
nrent of United States armed forces ... unless the Congress enacts a
declaration of war or a specific authorization for the use of United
States armed forces." Although I greatly prefer the 30-day emergency
period of the Senate Foreign Relation Committee's bill to the 120 day
emergency period of the House bill, the latter nonetheless provides
more effectively for Congressional authority to decide whether or not
any given military action may be continued beyond the erne rgency
period.
Another, similar problem arises in connection with Section 6 of the
Committee bill, under which Congress could require the termination
of military action within the 30-day emergency period only by act or
joint resolution, which of course would be subject to veto by the
President. In addition, Section 6 of the Committee bill, like Section
5, makes a complete exception to the Congressional termination power
in any case where the President judges that '`unavoidable military
necessity respecting the safety of the armed forces" requires their
continued use in the course of bringing about a "prompt. disengage-
ment" from hostilities. The requirement of Presidential signature
for an act of termination, combined with the exception of "unavoidable
military necessity," reduce to meaninglessness the ostensible power to
Congress to terminate hostilities within the 30-day emergency period.
The approach taken by the Zablocki bill in this respect. as in the ease
of military action beyond the initial emergency period, seems much
superior. Section 4(c) of Zablocki bill would authorize Congress to
require the President to terminate military action within the emer-
gency period simply by concurrent resolution. Since a concurrent
resolution does not require the signature of the President, this ap-
proach would eliminate the possibility of Presidential veto of a Con-
gressional act of termination. Furthermore, in the matter of terminat-
ing military action Within the emergency period as well as, allowing
it. to continue beyond the emergency period, the Zablocki bill contains
no such gaping escape hole as the "unavoidable military necessity"
spelled out in Section 5 and 6 of the Senate Committee bill. The
Zablocki bill, therefore, provides not only for Congressional authority
to decide whether military action will be sustained beyond the emer-
gency period; it also, provides more effectively for Congressional au-
thority to terminate military action within the emergency period.
Still another problem arises with respect to Section 9 of the Senate
Committee bill, which states that the bill would "not apply to hostil i-
ties in which the armed forces of the United States are involved on
the effective date ofNthis Act." The effect of this provision would he
the exemptions of the. lingering war in Indochina from the application
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of the bill. As formulated, Section 9 of the Committee bill can even
be read as giving' negative or implicit sanction to the continuation
of the war In Indochina. My own view is that the current bombing
of Cambodia is unconstitutional as well as unwise, and this view
seems now to represent a consensus in Congress, which may soon re-
sult in a legislative cutoff of the bombing. I would not wish, however,
even by indirection, to have it suggested in a major piece of legislation
that this war warrants exemption from rules of legality which would
be applied to future wars. As the Committee Report correctly points
out, the war powers bill is not an attempt to alter the Constitution
but a reassertion and codification of the war powers provisions of the
Constitution. To exempt ;any war from the bill's provisions is, in effect,
to exempt it from the Constitution. In order to deal with this problem
I recommend that the language exempting the Indochina conflict-
this act "shall not apply to hostilities in which the armed forces of
the United States are involved on the effective date of this Act"-be
deleted from Section 9 of the Committee bill, making the Senate bill
equivalent to the Zablocki bill, which states simply that the legisla-
tion "shall take effect on the date of its enactment." In addition, I
recommend, most strongly, the inclusion in the bill of a provision
equivalent to Section 9 of the bill reported by the House Foreign
Affairs Committee, which states that "All commitments of United
States armed forces to hostilities existing on the date of the enactment
of this act shall be subject to the provisions hereof. . . ." The inclusion
of such language would remove all doubt of the applicability of Con-
gress's war power to the current hostilities in Indochina as well as to
future possible wars.
A most important problem, 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 section above entitled "Explanation of the bill" it is
stated that "this legislation would not inhibit the President's capacity
to deploy the armed forces, i.e., to move elements of the fleet in inter-
national waters." Professor Raoul Berger commented in his testimony
before the Foreign Relations Committee on war powers : "Unless Con-
gress establishes control over deployment by statute requiring Con-
gressional authorization, the President will in the future as in the
past station the armed forces in hot spots that invite attack, for
example, the destroyer Maddox in the Tonkin Gulf. Once such an
attack occurs, retaliation becomes almost impossible to resist." 1 I
am reminded in this connection of a memorandum written in 1968 by
General Wheeler, then Chairman of the Joint Chiefs of Staff, regard-
ing the deployment 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
guarantee than any written document." Both experience and logic show
that, to the extent the President controls deployment of the armed
forces, he also has the de facto power of initiating war.
Either in connection with the war powers bill., or through separate
legislation, it would seem appropriate, indeed urgent, to affirm by
law the authority of Congress to regulate the deployment of the armed
1 "War Powers Legislation," Hearin..s Before the Conincittee on Foreign Relations, U.S.
Senate, 93rd Congress, 1st Session. (Washington : U.S. Govt. Printing Office, 1973), p. 17.
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38
forces in the absence of hostilities or their imminent threat. Such
authority derives directly from the Constitution, which specifies Con-
gress's power 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 appro-
priated moneys shall and shall not be spent. Moreover, the author-
ity of Congress to regulate the deployment of the armed 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 precipate
hostilities or-to take the language of the war powers bill-to create
"situations where imminent involvement in hostilities is clearly indi-
cated...." In the words of a Congressional Research Service memo-
randum on the subject, dated May 24, 1973, "Almost every substan-
tive aspect of the armed forces is an appropriate subject for regu-
lation by the Congress; and, since the President is entirely dependent
on the Congress for the forces he commands, it follows that Congress
can control, directly or indirectly, the objectives for which these
forces are used, at least during times of peace."
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