WAR POWERS ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700090010-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 76
• Document Creation Date: December 16, 2016
• Document Release Date: May 16, 2005
• Sequence Number: 10
• Publication Date: July 20, 1973
• Content Type: OPEN

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nil Record
"ILCU OLULVB
of America PROCEEDINGS AND DEBATES OF THE 9 3d CONGRESS, FIRST SESSION
WASHINGTON, FRIDAY, JULY 20, 1973
Senate
The Senate met at 9 a.m. and was
called to order by Hon. ROBERT C. BYRD,
a Senator from the State of West
Virginia.
PRAYER
The Chaplain, the Reverend Edward
L. R. Elson, DD., offered the following
prayer:
Our Father God, whose Word teaches
us to seek the kingdom of God for God's
sake alone, and righteousness for right-
eousness' sake alone, and has promised
that all else shall be added, make the
people of this land exemplars of this
truth. May we be assured of Thy con-
stant presence illuminating and guiding
our work. Teach us to distinguish right
from wrong and always to choose the
right. When the way is uncertain, speak
to our inmost being saying, "This is the
way, walk ye in it." At this time of dedi-
cation, give us grace to work as instru-
ments of Thy purpose upon the Earth.
We pray in the Redeemer's name.
Amen.
APPOINTMENT OF ACTING PRESI-
DENT PRO TEMPORE
The PRESIDING OFFICER. The clerk
will please read a communication to the
Senate from the President pro tempore
(Mr. EASTLAND).
The second assistant legislative clerk
read the following letter:
U.S. SENATE,
PRESIDENT PRO TEMPORE,
Washington, D.C., July 20, 1973.
To the Senate:
Being temporarily absent from the Senate
on official duties, I appoint Hon. ROBERT C.
BYRD, a Senator from the State of West Vir-
ginia, to perform the duties of the Chair
during my absence.
JAMES O. EASTLAND,
President pro tempore.
Mr. ROBERT C. BYRD thereupon took
the chair as Acting President pro tem-
pore.
THE JOURNAL
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the reading of
the Journal of the proceedings of Thurs-
day, July 19, 1973, be dispensed with.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
COMMITTEE MEETINGS DURING
SENATE SESSION
Mr. MANSFIELD. I ask unanimous
consent that all committees may be au-
thorized to meet during the session of
the Senate today.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
PHONE CALLERS
Mr. SCOTT of Pennsylvania. Mr. Pres-
ident, with tongue firmly lodged in cheek,
for fear that in this paranoiac town I
may be taken seriously, I would suggest
that, hereafter, all anonymous phone
callers be required to register under the
Lobbying Act. [Laughter.]
1,- POWERS A~
The PRESIDING OFFICER (Mr. NEL-
soN). Under the previous order, the
Senate will now resume the considera-
tion of the unfinished business (S. 440),
which the clerk will state.
The legislative clerk read as follows:
S. 440, to make rules governing the use
of the Armed Forces of the United States in
the absence of a declaration of war by Con-
gress.
The PRESIDING OFFICER. Who
yields time?
Mr. JAVITS. Mr. President, what is
the parliamentary situation? Do I cor-
rectly understand that the Eagleton
amendment is pending?
The PRESIDING OFFICER. The
pending question is on agreeing to
amendment No. 364 of the Senator from
Missouri (Mr. EAGLETON).
Mr. JAVITS. And what is the time on
that, Mr. President? -
The PRESIDING OFFICER. The time
limitation on amendment No. 364 is 1
hour.
Who yields time?
Mr. EAGLETON. Mr. President, I call
up my amendment No. 364 and would
inquire, is it not the pending business?
The PRESIDING OFFICER. It is the
pending business.
Mr. EAGLETON. I thank the Chair.
Mr. President amendment No. 364
is a "housekeeping" type of amendment.
In the drafting of S. 440, a typographical
error was made on page 5, line 2.
I would ask the Senator from New
York (Mr. JAVITS), as the other prin-
cipal sponsor of S. 440, if he has had a
chance to read amendment No. 364 and
does he not agree that this is a clerical
mistake?
Mr. JAVITS. Mr. President, I shall
speak on my own time, if the Senator
from Missouri is agreeable.
Mr. EAGLETON. Yes.
Mr. JAVITS. Mr. President, I yield
myself such time as I may require.
The Senator from Missouri is entirely
correct. The error is almost self-evident.
It occurred in the printing of the bill. It
will be noted at the point where the
amendment occurs, at the top of page 5,
that the words "Armed Forces" should be
changed, as the Senator from Missouri
has suggested, to "military forces," to
have it conform to the body, of the text.
We appreciate having the error called
to our attention, and in this form the
amendment should be accepted.
However, since we have time on the
amendment, I should like to take a few
minutes of that time, before yielding
back whatever remains-and I shall not
be long-in order to set in frame, as
we have had an interrupted debate of
this matter, the situation as I see it
now.
Let us turn to the primary amend-
ments which will be made in respect of
the war powers bill; Senator EAGLETON'S
principal amendment relates to problems
involving the CIA and the paramilitary
forces.
There will be an amendment by the
distinguished chairman of the Commit-
tee on Foreign Relations (Mr. FuL-
BRIGHT), respecting deployment. There is
a possibility of other amendments aside
from these two including possibly a sub-
stitute for the whole bill.
There may be other amendments, of
course, but those are the primary
amendments which have been called to
my attention.
I have established this frame of refer-
ence for this reason: The war powers
bill was passed by the Senate a little
more than a year ago by a very heavy
vote, 68 to 16. Since that time the bill
has been obviously extremely closely
scrutinized by many persons having very
sharp eyes and very sharp minds. In
addition, the Committee on Foreign
Relations took the precaution of having
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another hearing on the war powers bill
before actually reporting it to the Ben-.
ate this time.
This very, very searchingscrutiny by
commentators, columnists, foreign policy
experts, Members of the House and Sen-
ate, and academicians, both at home
and abroad, have, in my judgment, been
a great tribute to the durability of the
bill. The fact is that the fundamental
structure of the bill has withstood every
assault and every scrutiny. This is criti-
cally important because the bill is a his-
toric piece of legislation. It represents
an effort to define a situation which has
not been defined since our Republic was
founded. The need to define it now has
become unavoidable.
Events in the last two decades have
convinced us that it must-be defined.
Even when we face a situation like that,
we hope that very critical problems will
not arise which will make us come to a
decision.
But the issue of war or peace, the para-
mount issue of not only our time but of
all time, when we face the reality of any
difficulty, when American casualties al-
most exceed the imagination, compels us
to come to this decision.
Therefore, I think it should be a mat-
ter of very important reassurance to Sen-
ators that, notwithstanding the careful
scrutiny over such a long period of time-
most unusual for any bill-which this
bill has received, it has stood the test and
stood it well. So well that the other body,
which started out a long way from the
ideas contained in this bill, has gradually
come to the same ideas, albeit in different
form, with different methodology, with
many deficiencies. But nonetheless the
House has come to the same fundamental
approach to this very profound problem
as is embodied in the Senate war powers
bill, as passed last year and as we are
again considering it this year.
Mr. President, referring now specifi-
cally to what is in essence the coalition
which produced this bill before the Sen-
ate, that, itself, is testimony to the
validity of this thesis, the searching in-
quiry which has surrounded it and the
strength it holds in being presented to
the Senate.
Senator STENNIS, the chairman of the
Committee on Armed Services, generally
considered very staunch in terms of
American security-and quite properly
so-in his general philosophy encom-
passing almost any kind of enemy capa-
bility which the United States has to
face, joined in the original presentation
of the bill and has been its constant and
diligent supporter. He will, by a state-
ment today which the manager of the
bill, Senator MusKIE, will read, demon-
strate his continuing fidelity not only to
its concept but also to its language.
It is something which really would be
denigrated, so important, is it to our
country, if I should say that I am grati-
fied. I think millions of Americans and
future generations will be gratified that
the chairman of the Armed Services
Committee has espoused the single ef-
fort which is most likely to control what
the Founding Fathers called the "dogs of
war."
Senator EAGLETON, though I do not
happen to agree with him in his major
amen ent today-that quite aside, be-
cause, gain, it does not go to the heart
of the bill-has been a masterful partner
in the architecture which the bill repre-
sents. #gain, he has given it a devotion
and copstancy which I would not wish
to denigrate by expressing mere personal
appreciation; but It will be appreciated
also, in my judgment, by millions of
Americans and by generations not yet
born, then we have accomplished this
historic departure from the past.
Also,' Mr. President, I should like to
pay my tribute to Senator GOLDWATER,
who emerged as probably the principal
Senate' opponent of the bill, and to
others-professors, distinguished men in
other oallings-who appeared before us
to take the bill apart.
I believe in debate; I believe in cross-
examination. I consider Senator GOLD-
WATER one of the really great patriots
of our country in terms of its security,
and I have admired the fact that not just
in words for Senate courtesy, but also
in the depth of his feeling, he understood
that al of us who advocated the bill-
almost two-thirds of the Senate-a.,so
had the deepest feeling for the security
and the prosperity of our country and
peace in the world, but for the survival
of American values, beyond everything
else, in the decades ahead.
I also pay my tribute to the members
of the (Committee on Foreign Relations.
Senato FULBRIGHT, who has been a con-
stant stupporter of the bill-though he
differs with some of its details, as he
will show by his amendments-has also
been a'tower of strength to us. Without
him, we never could have turned the bill
out or loved it to where it is today. Simi-
larly, tle majority leader and the minor-
ity leac4er, who are members of the For-
eign Relation Committee, have been
absolutely invaluable aids in this respect.
Mr. President, I hope Senator EAGLE-
TON will forgive me for saying these
things ;at the beginning instead of the
end. These words are always reserved
for the' end. If the Senator is agreeable,
I will yield back the remainder of the
time, and we can proceed to his amend-
ment.
Mr. EAGLETON. The Senator from
South Dakota has an appointment and
would like to speak for 10 minutes on the
bill. I am going to yield him 10 minutes
of my time, in order to accommodate his
schedule, unless there is an objection.
Mr. , AVITS. That is fine. Would the
Senator like his amendment adopted
first?
Mr., EAGLETON. No. I will yield to
the Senator from South Dakota time on
the amendment.
Mr. dAVITS. Mr. President, I note that
the assistant majority leader, Senator
ROBERT C. BYRD, is here, and I wish to pay
my tribute to him, too, as a constant, in-
defatigable cosponsor and supporter and
to exp ess my appreciation for his im-
portant help in respect to bringing this
bill to a position it is in today.
Mr. OBERT C. BYRD. I thank the
Senator for his generous remarks.
Mr. AGLETON. I yield 12 minutes to
the Se ator from South Dakota, on the
amendment.
Mr. ABOUREZK. I thank the Senator
from Missouri for yielding.
Mr. President, for the ;Oast 25 years,
this Nation has witnessed the dangers of
allowing the President a virtually un-
limited right to engage in war. The :mis-
guided gambols in Cuba and theDon ni-
can Republic, the unpopular agonies of
Korea, the shameful struggle in Indo-
china, stand as grim testament to the
dangers of Executive prerogative in mat-
ters of war and peace. All of us, there-
fore, must applaud efforts to reassert the
constitutional role of Congress, ani to
limit the warmaking powers of the Presi-
dent. The efforts which have been ex-
pended by the Senate Foreign Relations
Committee and individual Senators to
achieve this goal have my strong respect
and support.
It is, therefore, with reluctance that I
find it necessary to register my st: ong
opposition to the provisions of the war
powers bill, Senate bill 440. I do so in
spite of the fact that I originally agreed
to cosponsor this legislation. After care-
ful consideration however, I am now of
the belief that this bill will establi>h a
dangerous standard which in fact ex-
pands, rather than contracts President's
warmaking powers.
The war powers bill establishes a 30-
day limit on "undeclared" wars, initiated
without ocngressional approval. The
President is empowered to enter into an
undeclared war in three very different in-
stances. He may "repel an armed attack
upon the United States," a power en-
visioned by the framers of our Conslitu-
tion, and with which no one would quar-
rel. The other two instances are of much
more questionable prudence.
The bill would empower the President
to repel an armed attack upon Armed
Forces of the United States located out-
side of the continent. This provision
would not be deplorable if the Senate
exercised its constitutional role in for-
eign policy and gave consideration and
approval to all treaties and commitments
made by the United States. This is not
currently the case. The President claims
the right to make commitments by Ex-
ecutive agreements without the approval,
and often without the knowledge of the
Senate. He claims the right to place
American troops wherever it pleases :aim.
We now have some 2,000 bases or mili-
tary detachments located in the far
corners of this world. By giving the
President the power to defend each of
them, without congressional considera-
tion of the location and wisdom of their
placement, we are simply empowering
Presidents to locate troops in such a
manner as to provoke attacks to ju,>tify
Presidential warmaking. This Nation is
not ignorant of such practices. The Gulf
of Tonkin Resolution resulted from an
incident off the coast of North Viet:aam
which may have been provoked, Indeed
it may have been manfactured, in order
to justify the bombing of North Vietnam.
For Congress to grant the President the
right to defend American forces it must
first, as Raoul Berger, the noted consti-
tutional historian has so wisely sugf est-
ed, exercise its constitutional power to
insure that such forces are not placed
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in provocative positions, or used in pro- Ing. We have witnessed an unconstitu- stitutional scheme is necessary, then let
vocative exercises. tional assertion of power over questions us undertake to achieve it in the manner
The war powers bill empowers the of war and peace by a succession of provided by the Constitution itself-by
President to enter into war in order to Presidents. Now in the hope of limiting amendment with submission to the pub-
fojrestall the "direct and imminent threat that assertion, I fear that we will now lic, and not by unilateral Executive
of 'such an attack" on the United States pass legislation which authorizes much transgression.
or,on American troops abroad. This pro- of it. Let me briefly explain. This bill, in essence, accepts the ad-
vi.9ion could have been cited by this ad- We should not be misled by Secretary ministration position, legitimating Presi-
ministration to justify the Cambodian Rogers and other executive spokesmen dential warmaking even as it seeks to
intervention in 1970 and the Laos inter- who suggest that the President now has limit its use. Passage of this legislation
veltion in 1971, both of which were pub- the constitutional authority to make will lend congressional authority to Ex-
licly rationalized as necessary to forestall war. Article I, section 8, clause 11 of the ecutive war. It will confuse the public,
attacks on American troops. It also could Constitution states that "The Congress embolden future Presidents, and worst
be invoked to sanction a preemptive first shall have power to declare war." James of all, dilute the Constitution. With this
strike with nuclear weapons, a capacity
which this Nation has refused to re-
nounce. In essence, it constitutes a blank
check which will implicate Congress in
whatever aggressive war-making a Presi-
ident judges to be necessary.
The dangers of this provision are
manifested by our recent experiences in
Indochina. Experiences which this bill
originally sought to correct for the fu-
ture, and which caused me to initially ap-
plaud the effort to prevent a recurrence
of these experiences. Let us look at Cam-
bodia. After thousands of secret B-52
bombing missions for 3 or 4 years, the
President, citing "secret" or "classified"
reports notified the American people that
it was necessary to invade the country to
avoid an imminent threat of an attack
on American forces in Vietnam. The at-
tack enmeshed this Nation in the defense
of a corrupt junta fighting against its
own people. This is exactly what oc-
cured in 1970. The only difference made
by the war powers bill is that, in the fu-
ture, a President will be able to tell the
American public that he has explicit con-
gressional authorization to engage in
such an attack, authorization provided
by section 3 of this bill. Finally, the war
powers bill provides a 30-day limit on
Presidential warmaking without con-
gressional approval. Yet it includes a
loophole so large, so forgetful of our re-
cent tragic experience as to nullify that
provision.
Hostilities can continue without con-
gressional approval beyond the 30-day
limit if the President "determines and
certifies to the Congress in writing that
unavoidable military necessity respect-
ing the safety of the Armed Forces" re-
quires continued fighting to bring about
"prompt disengagement." "Prompt dis-
engagement" is exactly what we have
witnessed, according to the President,
for the past 5 years in Vietnam and Cam-
bodia and Laos. "Prompt disengage-
ment" which has included the dropping
of more bombs than at any other time
in our history. "Prompt disengagement"
which has resulted in attacks against
Cambodia and Laos, and the terror
bombing of North Vietnam. With this
clause the war -powers bill not only
bill, Congress puts its imprimatur on the
future history of Executive war, and ac-
cepts unilateral Executive usurpation as
a proper mode of amending the Con-
stitution.
This tendency of Congress to legiti-
mate illegal Executive practices in the
hope of limiting them now pervades
many of the positive efforts this body is
making to limit Presidential power.
For example, most Members of the
Senate agree that the Presidential im-
poundment of over $15 billion is uncon-
stitutional. In many instances, it has
represented an item veto, a veto without
congressional review. The Constitution
gave Congress the power to override
Presidential vetoes. Congress was to de-
cide domestic priorities through its power
of the purse. Impoundment violates the
constitutional schema. To limit this ar-
rogant assertion of Executive license,
Members of this body have begun con-
sideration of legislation. Last year, as a
first step, we passed a requirement that
the President notify us of all impound-
ments. Immediately, officials of the OMB
claimed that such legislation constituted
tacit recognition of the legality and con-
stitutionality of impoundment.
The pattern is similar: An Executive
usurpation of the powers of Congress un-
der the Constitution; a moderate attempt
by Congress in response; and the ensu-
ing claim by Executive spokesmen that
such an attempt legitimates the initial
usurpation. Moreover, in impoundment
as in the Javits bill, Senators have pro-
posed legislation which would authorize
impoundments with the proviso that
Congress approve them within a given
time period. Once again, the Congress
would legitimate a clearly unconstitu-
tional Presidential practice in the hope
of limiting it.
With such legislation, we are giving
away our powers, admitting that the
executive branch has a growing monop-
oly over decisionmaking in this society.
As the Roman Senate before us, I fear
we will discover that such a course will
soon terminate our usefulness, transform
us into lobbyists for Executive favors.
If we consider the pending bill seri-
ousl
we can all
di
t the
lt
y
pre
c
resu
. A
ignores our recent agonies, but legiti- Wormuth, a noted constitutional scholar, President will initiate war in some
mates them, an act which I find uncon- shows that 48 had congressional approv- steamy corner of the world, claiming
scionable. al, 1 was in self-defense, and 6 were that an imminent threat to our troops
The major shortcoming of this bill, minatory demonstrations, 6 to 8 were exists. After 30 days he will come to Con-
however, is broader than such semantic clear usurpations. gress and to the public, and state that
interpretations. This bill simply aban- But the strength of the precedents is American forces are in danger, that we
dons the constitutional requirement that irrelevant. To treat such incidents as al- must rally to the flag. There is nothing
no war be entered without prior congres- tering the constitutional allocation of in the history of this body, or of any
sional declaration. It gives to future power is to give the President the uni- legislative body which suggests that we
Presidents the right to claim that Con- lateral right to amend the Constitution. can or would refuse to "support the
gress has legitimated Executive warmak- If such a basic alteration in the con- troops" in a moment like that. That is
legal scholar of his generation," and sec-
ond only to Madison as architect of the
Constitution, noted that this power was
lodged in Congress so that no "single
man (can) involve us in such distress."
The framers of our Constitution
feared that rulers tended to make war
for reasons of honor, pique, and pride.
They sought to make war difficult to
enter, because the genius of a democracy
was that it was peaceful and peaceloving.
Thus, they required that such a momen-
tous decision only be undertaken with
the consideration and support of the
Congress.
The framers acknowledged only one
exception to this rule-the President
could use the Armed Forces to repel sud-
den attacks on the United States. Such
attacks threaten the country itself and
naturally required immediate response.
That was to be the only exception.
We have witnessed and grown fright-
ful accepting of a course of Executive
usurpation of this power. The Presi-
dent and his spokesmen claim that his
role as Commander in Chief or his in-
herent power as Chief Executive, pro-
vide him with the constitutional right to
make war. Yet any constitutional scholar
of independence agrees that the framers
had no such intention, that neither the
grant of Executive power nor the role
of Commander in Chief was intended to
give the Executive the right to make war
unilaterally.
In the end, executive spokesmen must.
rely on what they claim is a practice of
Presidential warmaking-a practice
which alters the original distribution of
powers in the Constitution. "Adaption
by usage"-the administration language
is simply a polished label designed to
cover the unpalatable claim that the
President by his own practice may revise
the Constitution and disrupt the division
of powers in order to meet his taste or
designs.
Administration spokesmen claim that
a history of undeclared armed encoun-
ters-numbering from 125 to 165-estab-
lishes new constitutional authority in the
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precisely why the founders of this great
Nation provided for a congressional dee=
laration of war prior to its initiation.
Moreover, even if Members of this body
dared to face down the President, his
response would be predictable. With
great reluctance and a heavy heart, ex-
ercising the powers given him by this bill,
he would announce that the fighting
must continue to protect the troops in
the course of their "prompt disengage-
ment." And in some unknown corner of
the world., American men would die,
bombs would fall, peasants would be
slaughtered, populations uprooted-the
President would have his little war, and
the Congress would be an accomplice. At
such a time, this great body will be
known not as prudent, but as inconti-
nent, not as powerful, but as important,,
not as courageous, but as supine, not as
an equal branch of Government, but as
an ornament to a warmaking machine
we are unwilling to control in spite of
public outrage, moral obloquy, and Con-
stitutional mandate. How many years
will it be after the passage of this bill?
Ten years, five, one year, six months? I
strongly urge that we reconsider our
course.
I thank the Senator for yielding.
Mr. MUSKIE. Mr. President, will the
Senator yield?
Mr. EAGLETON. I wanted to yield to
the Senator from Arizona.
Mr. MUSKIE. To make a brief re-
quest?
Mr. EAGLETON. I yield.
Mr. MUSKIE. Mr. President, I ask
unanimous consent that James Woolsey,
Nancy Bearg, and my legislative assist-
ant, Alan Platt, be allowed the privileges
of the floor during the consideration of
the bill.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. JAVITS. Mr. President, I made a
similar request for Albert Lakeland, of
my staff.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. EAGLETON. Mr. President, I
yield 5 minutes to the Senator from Ari-
zona (Mr. GOLDWATER).
Mr. JAVITS. Mr. President, will the
Senator yiedl to me for 1 minute? If he
needs more'time, I will yield him 1 min-
ute from my time.
Mr. GOLDWATER. I yield.
Mr. JAVITS. The Senator issued a
challenge that we answer 25 points re-
ferring to the war powers bill. I have
done that and will make available the
answers to the Senator from Arizona,
and I offer them for the RECORD at this
time.
On July 18, 1973, during the war pow-
ers debate, Senator GOLDWATER made the
following statement:
I recall the debate last time and the fact
that we did not have much time. I am just
as disappointed as is the Senator from Colo-
rado in the fact that the Committee on For-
eign Relations did not seemingly allow any
opposition witnesses. I requested to be heard
before the committee, but I was not given
a chance to be heard, so I have to be heard
on the floor.
Here are the facts:
1. In 1972 the Senate debated the War
Powers Act for a total of 11 days. There
was no effort made to limit or cut off
opposition debate and the bill passed
overwhelmingly, 68 to 16.
2. With respect to GOLDWATER's View
that "tie Committee on Foreign Rela-
tions did not seemingly allow any oppo-
sition witnesses" in its hearings this year,
the fact is, as stated in the hearings:
Charles: M. Bower, acting legal adviser
of the State Department, testified on be-
half of the administration in opposition
of the bill, as did David Maxwell, a
former president of the ABA and mem-
ber of the State Department Advisory
Panel on International Law. Moreover,
as indicated on page 53 of the hearing
record, ',the following persons who had
indicat d opposition to the bill were spe-
cifically! and personally invited to testify
but dec lned or were unable to do so:
Secretary of State Rogers.
Deputy Secretary Rush.
Prof. Eugene Rostow.
Prof. Arthur Schlesinger, Jr.
Forn er Secretary of State Dean Rusk.
Former ABA President Eberhard
Deutsch.
Former ABA President Charles Rhyne.
Prof. Francis Wormuth.
All' o$ those above were not only per-
sonally'and individually invited, but each
was, requested to submit a statement for
the record if he were not able to testify
in pers n. Senator DomiNIcI submitted
a state ent for the record, which ap-
pears o page 250 of the hearings. Sena-
tor Go DWATER was invited to testify but
was necessarily absent in Arizona for the
week during which the 2-day hearings
took p ace. At the request of Senator
GOLDW TER'S office, you personally placed
his sta ement in the record. The state-
ment o Senator GOLDWATER occupies 40
pages Of the hearings-from page 116 to
page 1$6.
In addition, it is pertinent to point out
that during the course of the Foreign
Relations Committee hearings, both in
1971 and 1973, six witnesses appeared in
opposition to the war powers bill: Sena-
tor GOLDWATER, Prof. John Norton
Moore,' Secretary of State Rogers, former
Under Secretary of State George Ball,
Acting Legal Adviser Charles M. Bower
and Mi. David Maxwell.
Moreover, extensive critiques of the
war powers legislation appear as appen-
dixes in the printed hearings conducted
in 197 and 1973.
Senator GOLDWATER's unanswered "25
Grave,! Practical, and Constitutional
Problems: "
1. "The 'bill prevents `show of force'
and other mere deployments of troops or
arms." '
Comment: It was made absolutely
clear during the debate last year and
again is made clear in the committee re-
port this year that show-of-force deploy-
ments .for example, the movement of
the 6th Fleet into the eastern Mediter-
ranean - during the 1970 Jordanian
crisis-rare not restricted by the bill un-
less and until they involve the Armed
Forces! in hostilities or in situations
where imminent involvement in hostili-
ties is, clearly indicated by the circum-
stances. Should these latter conditions
pertain, then, of course, "show of force"
would be covered by the bill as that is the
entireintention of the bill, which relates
to involvement in hostilities.
2. "U.S. Forces cannot be used in de-
fense against any threat which poses a
future, rather than immediate, danger to
the United States, even if the ultimate
safety of the Nation is clearly at state."
Comment: In fact, under section E (4)
of the bill, the President has ample op-
portunity to obtain from the Congress
specific statutory authority to deal with
any legitimate future threat to the accu-
rity of the United States. However, in the
absence of any emergency, which is the
situation hypothesized by Senator GoLD-
WATER, the bill rightly does, of course, re-
quire prior congressional authorization
pursuant to the Constitution of the Unit-
ed States. In this context, the admoni-
tion articulated in 1848 by Abraham Lin-
coln is, most pertinent and-articulate:
Allow the President to invade a neighbor-
ing nation, whenever he shall deem it neces-
sary to repel an invasion, and you will allow
him to do so, whenever he may choose to say
he deems it necessary for such purpose---and
you allow him to make war at pleasure. S':udy
to see if you can fix any limit to his power in
this respect ... If, today, he Should choose to
say he thinks it necessary to invade Car ada,
to prevent the British from invading us, how
could you stop him? You may say to him, I
see no probability of the British invading us
but he will say to you be silent; I see t, if
you don't.
3. "The bill endangers the entire struc-
ture of American mutual security agree-
ments which now stand as the greftest
safeguard global peace."
Comment: This generalization is un-
supported by fact or compelling argu-
ment. The important point is that all of
our mutual security treaties contain the
provision that its articles are to be car-
ried out "in accordance with Cons';itu-
tional provisions." In the United States,
the "constitutional provisions" with. re-
spect to going to war require the ap-
proval of both Houses of Congress.
4. "The bill repeals outstanding area
resolutions, such as the Middle East Res-
olution."
Comment: The contrary is clearly
stated on pages 23-24 of the committee
report, which reads as follows:
There is a clear precedent for the action
anticipated in subsection (4) -the "area res-
olution." Over the past two decades, the Con-
gress and the President have had consider-
able experience with area resolutions-some
of it good and some quite unsatisfactory. In
its mark-up of the war powers bill, the For-
eign Relations Committee considered this
experience carefully in approving the lan-
guage of subsection (4). The wording cf the
final clause of subsection (4) holds the va-
lidity of three area resolutions currently on
the statute books. These are: the "Formosa
Resolution" (H.J. Res. 159 of January 29,
1944); the "Middle East Resolution" (H.J.
Res. 117 of March 9, 1957, as amended) and
the "Cuban Resolution" (S.J. Res. 230 c?f Oc-
tober 3, 1962).
5. "The bill blocks U.S. humanitarian
relief missions, such- as the 1964 joint
United States-Belgian rescue operation
in the Congo."
Comment: It is not at all clear what
Senator GOLDWATER means by "humani-
tarian relief missions." If such missions
involve the Armed Forces of the United
States in hostilities or in situations
where their imminent involvement is
clearly indicated by the circumstances,
the war powers bill does indeed and quite
properly apply. However, there is, of
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course, no restriction on humanitarian of the bill. Therefore, the terminology the judgment of the executive branch,
relief operations per se in this bill, nor, is not statutory controlling. For statu- necessary authorization can be requested
of course, is there any intention of re- tory purposes the terminology. of section and obtained under section 3 (4) of the
stricting such relief operations which 3 is controlling over the slightly varient bill.
may be appropriate, providing they do terminology of section 2, the "purpose 15. "The 30-day time restriction on
not involve the Armed Forces in a war and policy" statement. So far as the emergency military actions might pres-
without the approval of Congress. slightly . divergent terminology of the sure a President to go all out by resorting
6. "The bill prohibits any military ac- initial paragraph of section 3, as com- to total war during the short period of
tion by the President designed to defend pared with the language of sections 1 time allowed him."
the overseas economic position of the and 2 is concerned, there is no differ- Comment: This charge persumes bad
United States." ence in meaning or intent. The charge is judgment and irresponsibility on the
Comment: Under section 3(4) the bill thus a distinction without a difference. part of the President. The bill assumes
provides a procedure for obtainling con- 11. "The 30-day limit of the bill, after good faith and a sense of high respon-
gressional authorization for any justified which troops cannot be used, even in sibility on the part of the President, as
military action in defense of U.S. eco- emergency situations, is unrealistic and well as upon the part of the Congress in
nomi
i
t
t
"
c
n
eres
s, as, if and when con-
curred in by the Congress. The bill does,
of course, prohibit unilateral "gun boat"
diplomacy by the President on behalf of
U.S. property or interests abroad, as was
so often the lamentable practice during
the heyday of 19th century imperialism
in Europe-and even emulated by Amer-
ican Presidents in the latter part of that
century.
7. "The bill prohibits U.S. personnel in
the NATO integrated commands from
exercising any functions-any func-
tions-during a crisis."
Comment: Section 9 of the bill (page
9, lines 7-15) clearly provides to the con-
trary. This is additionally made unmis-
takably clear on page 31 of the com-
mittee report.
8. "The bill may trigger World War III
by causing foreign adversaries to believe
the United States will not respond to
threats to world peace, because of legis-
lative restrictions."
Comment: The credibility of U.S. ac-
tions in the world require a united home
front which can only be achieved when
the Congress is joined with the President
in decisionmaking and in support of
basic U.S. International security policy.
9. "The bill compels a vote by Congress
shortly after each crisis occurs and
might precipitate a legislative reaction
far more dangerous than the response
the President has chosen."
Comment: I reject the-fundamental
premise of this charge-that is, that the
Congress is less responsible than the
President. I believe that the last 10 years
at least has been to the contrary. More-
over, there is nothing in the bill which
compels Congress to vote at the peak of
a crisis. In emergency situations, the
President has 30 days to act without spe-
cific statutory authorization. The choice
of this long a period is designed pre-
cisely to allow Congress to consider each
situation thoroughly and dispassion-
ately-in contrast to the experience of
Congress with respect to the Tonkin Gulf
Resolution. Moreover, the provisions of
S. 440 are flexible enough to enable the
Congress to decide by majority vote just
how it wishes to dispose of each issue-
allowing full flexibility to restrain from
untimely votes, such as hypothesized by
Senator GOLDWATER.
10. "The bill uses three totally dif-
ferent and unexplained terms to describe
the nature of the threat which must
exist before the President can respond
to foreign dangers."
Comment: Section 2 of the bill is a
negative statement of "purpose and
policy." It is not the operative section
dangerous.
guarding the security interests of our
Comment: The characterization of Nation. In the opinion of the authors of
section 5 as "unrealistic and dangerous" the bill, it is not feasible or possible to
is purely a subjective judgment. It is not legislate on the basis of presumed bad
a conclusion that was reached by the faith, or irresponsibility on the part of
overwhelming majority of the Senate, the President.
which approved the War Powers Act by 16. "The bill attempts to do what the
a vote of 68 to 16 on April 13, 1972. In Founding Fathers felt they were not wise
point of fact, the sponsors of the legisla- enough to do, anticipate the unlimited
tion believe that it is more unrealistic and unexpected variations of future
and more dangerous to allow the Presi- events when defensive measures may be
dent unilaterally to make war without needed."
restraints without obtaining the concur- Comment: The implication of this
rence of the Congress and thus the ac- charge is that total and unfetterd ad-
quiescence of the American people. The vance authority must be given to the
tragedy of our Nation in the undeclared, President to wage war at his sole and
Presidential war in Indochina which total discretion. The Constitution of the
has lasted already for a full decade United States clearly rejects any such
demonstrates the greater dangers to our working premise, as does S. 440. One
Nation and its security of unrestrained cannot legislate on the basis of hypo-
Presidential warmaking. thetical unknowns. Rather, one must
12. "The President could not protect legislate on the basis of known factors
U.S. fishing vessels against attack in and situation and hard experience. S. 440
territorial waters claimed by another na- is based upon actual historical experience
tion." in contrast to future, unknown, uniden-
Comment: Any decision to provide tified hypotheses. The authors of the bill
armed naval escort to U.S. fishing ves- believe that this is the correct legislative
sels certainly ought to require the prior approach and entails far fewer dangers
statutory approval of the Congress. Dis- to our national security.
puted fishing beds are well-known and 17. "The Declaration of War clause is
there would be ample opportunity to ob- an outmoded and invalid basis for pass-
tain a joint Presidential-congressional ing legislation which prevents Presiden-
decision to intervene militarily in a fish- tial defensive reactions against foreign
ing dispute. Certainly the very gradual dangers."
buildup over a period of years of the Comment: S. 440 specifically and ex-
British-Icelandic dispute indicates that plicitly deals with situations arising "in
these are matters which can be con- the advance of a declaration of war by
sidered judiciously in advance rather Congress." Moreover, the constitutional
than on an emergency basis. underpinnings of S. 440 go beyond the
13. "The bill provides no authority for exclusive constitutional authority of
immediate action- designed to rescue U.S. Congress to declare war. Article I, sec-
citizens hijacked on an aircraft flying tion 8 enumerates other plenipotentiary
through international airspace." war powers to the Congress, including
Comment: It is difficult to envisage a the "necessary and proper" clause, the
rescue being attempted in midair. Hi- authority "to make rules for the Govern-
jacked aircraft must land, at which point ment and regulation of the land and
rescue efforts could be undertaken un- naval forces" and to "provide for the
der the provisions of section 3(3). None- common defense."
theless, midair rescues could, of course, Senator GOLDWATER's view of the in-
be made without restraint by S. 404. tention of the drafters of the Constitu-
14. "The President lacks any author- tion, as shown by his statement: "The
ity under the bill for the protection of Founding Fathers very wisely gave the
U.S. citizens on vessels within interna- power to go to war to the President and
tional straits." the power to declare war-which means
Comment: It is amply clear from the not much-to the Congress," is just not
legislative history of the bill that any mine nor do I believe it is that of the
good faith- reading of the term "high sponsors or a great majority of the Sen-
seas" would be within the ambit of S. ate.
440. As used in S. 440, the words "high 18. "The bill erroneously assumes that
seas" are used to distinguish inter- the power 'to declare war' means the
national waters from territorial waters same thing as the sole power 'to make
as recognized by the United States in ac- war'-which, I just explained, it does
cordance with pertinent international not."
agreements. If upon enactment of this Comment: S. 440 does not assume that
legislation a serious ambiguity persists in the power to declare war is the same
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foreign dangers on his own authority and lead to some attempt to amend the Con-
initiative." stitution-not necessarily to take sway
Comment: Section 3 of S. 440 specif- war powers from the President, bit to
ically :'deals with emergency defensive put more control on them. In that case
actions by the President in the absence I would probably vote against such an
of pri?r congressional authorization. amendment, but I believe it is the proper
22. It is an historical mistake of approach.
monumental proportions to assume the Mr. President, I have made two spoech-
war powers bill would stop future Viet- es on this subject. I am not going to be
nam, when under its terms it would not able to be here during the vote because
have prevented Vietnam itself." I have to go west because of illness in my
Comment: This is an expression of family.
opinion which the sponsors of S. 440 do THE PRESIDENT'S CONSTITUTIONAL WAR POWERS
not share. In view of the Senate vote of Mr. President, the sponsors of 83. 440
1972 on the War Powers Act, it is an have asked during the debate for oppo-
opinion that is not widely shared by the nents of the bill to come up with some
Senate as a whole. "semblance of authority" for the P'resi-
23. "The bill creates a dangerous un- dential war powers. I intend to speak to
certainty for the country in time of crisis this point directly at this time and am
by ying to the President any judg- glad to hear that the sponsors of 3. 440
ment and discretion of his own to deter-
will also be making a reply to the analysis
mine,if an emergency exists which au- of 25 questions about the bill to which
thories use of military force." I earlier invited them to respond.
thing as the power to made war. As iswell known, the-initial draft of the Con
stitution gave the exclusive power "to
m make war"-this phrase being retained
unchanged as it appears in the Articles
of Confederation-to the Congress. On
August 17, 1787, during the final revision
of the text of the Constitution, James
Madison and Eldredge Gary "moved to
insert `declare,' strike out `make' war;
leaving to the Executive the power to re-
pel sudden attacks." This quotation f
from Madison's notes on the Constitu-
tional Convention. S. 440 follows very
strictly the letter and spirit of the Con-
stitution with respect to the relationship
of declaring war and to making war, as
intended, proposed and explained by James Madison, the author of this draft- ing change.
It is significant to note further that S.
440 deals with situations wherein there is no congressional declaration of war, thus clearly contemplating situations in
which there is war in the absence of a
congressional declaration of war. The
purpose of S. 440 is to restore the in-
tended authority of Congress to "decide
on war" in view of the modern practice
of Presidents who do not request decla-
rations of war from the Congress.
19. "The Necessary and Proper Clause
does not give Congress power to define
and restrict the constitutional functions
of the President."
Comment: The authors of the bill be-
lieve that the "necessary and proper"
clause of the Constitution gives Congress
exactly the power which is defined in
that clause:
To make all Laws which shall be neces-
sary and proper for carrying into Execution
the foregoing Powers, and all other Powers
vested by this Constitution in the Govern-
ment of the United States, or in any De-
partment or Officer thereof.
S. 440 is a wholly constitutional and
proper exercise of the "necessary and
proper" clause. In testimony before the
Senate Foreign Relations Committee
leading constitutional authorities of our
Nation have affirmed the-
constitutional-ity of S. 440, including specifically the
appropriations and constitutionality of
its use of the "necessary and proper"
clause.
20. "There is not a single statutory
precedent for war powers controls cover-
ing unnamed geographic areas and un-
foreseen situations."
Comment: It is not at all unusual for
Congress to initiate legislation which has
no specific statutory precedent, as the
need for such legislation arises in our
Nation's history. Therefore, the absence
of a specific statutory precedent would
not be any more significant with respect
to S. 440 than was the case respecting
legislation establishing the Department
tiff Atomic Energy, for instance. In point
of fact, however, very interesting status
tory precedents dating back to the earli-
est days of our Republic do exist; for
example, statute 1 of May 2, 1792, and
statute 2 of February 28, :1975, both of
which contain provisions and concepts
remarkably parallel to S. 440.
21. "Historical usage has conclusively
established the constitutional basis of
Presidential defensive reactions against
provides a means through which the
President and the Congress can fashion
any degree of flexibility, discretion and
judgment which they jointly think nec-
essary and proper in defense of our Na-
tion' s security.
24. :"S. 440 will incite one of the gravest
constitutional crises in American history
without a means of resolution, because
the Supreme Court treats the use of
troops as a political question not subject
to judicial decision."
Comment: Our Nation already is in
the IYlidst of a grave constitutional crisis
with respect to the exercise of our Na-
tion's war powers. S. 440 in fact provides
a wholly responsible way out of the con-
stitutional crisis which already exists.
251 1 "S. 440 ignores the true purpose of
the rounding Fathers to prevent it re-
currence of the interference with mili-
tary operations which Washington ex-
perienced with the Continental Con-
gress."
Comment: As almost all constitutional
histc}rians have pointed out the principal
purpose of the Founding Fathers in
drafting the war powers provisions of the
Constitution was to prevent a concentra-
tion'of "monarchial" powers over war in
the lands of the Executive. Many quota-
tiont in this regard have been cited dur-
ing the Senate debate, and are contained
in the hearings and referred to in the
committee report.
Mr. GOLDWATER. Mr. President, I
thank the Senator from Missouri for
yielding to me.
Before I make my remarks, I want to
thank the Senator from New York for
his very kind remarks about me. I ap-
preclate them and I want him to know
that the whole experience has been an
enjoyable one= There has been no open
Mr. President, there are four basic
constitutional sources of the President's
powers over national defense.
First. The President is.expressly grant-
ed by article II, section 1. all the "execu-
tive power" of a sovereign nation, which
includes as its natural attribute the pri-
mary authority over use of military
forces in defense of important national
interests.
Second. The President is specifically
designated by article II, section 2, as
the "Commander in Chief" and as such
is charged with the supreme control and
direction over the Armed Forces.
Third. The President is expressly
granted the right by article II, section
3, to execute the laws, which, ts the
Supreme Court has recognized in the
Neagle case, includes the capacity to
base action directly on his own reading of
obligations growing out of our inter-
national relations.
Fourth. The President is vested with a
"constitutional primacy in the f.eld of
foreign affairs." This is an implicit pow-
er- which is recognized by at least six of
the present members of the Supreme
Court.
Mr. President, constitutional autho-
rities throughout our history have been
almost unanimous in concluding that
the President is . vested with an inde-
pendent control and direction over the
military forces in any situation where
he believes there is a threat to our coun-
try or its freedoms. The notion that the
President is subject to-the policy direc-
tives of Congress has been rejected by
leading jurists time and again. It is only
during the last decade or so, after the
going got tough in Vietnam, that consti-
tutional revisionists began changing their
minds.
The principle of a discretionary right
vested in the President to commit troops
fighting about it. He and I disagree as to outside the country as a means of pre-
whether this question should be ap- serving or advancing the national safety
prodched by legislation or by a constitu- is a consistent theme throughout more
tion4l amendment. I think that is very than a century of authoritative vs ritings.
fundamental. I do think, however, this It is most Certainly true, as John Quincy
disc?ssion-I would not call it a debate, Adams remarked In 1836, that the Presi-
becztuse that would be stretching it too dent is bound in duty to strive toward
far, but this discussion-on the floor will, peace with the other nations of the
I think, if the American people will fol- earth. "Yet," Adams warned, "must a
low, it and the press will follow it and President of the United States never
if we can get people talking about it, cease to feel that his charge is to main-
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tain the rights, the interests and the
honor no less than the peace of his coun-
try-nor will he be permitted to forget
that peace must be the offspring of two
concurring wills. That to seek peace is
not always to ensue it."
This fundamental and -philosophical
observation on the condition of mankind
echoed the change of heart which had
taken place in Thomas Jefferson, who
admitted his error in believing that the
United States could remain at peace
whatever the trend of world events else-
where. By March 2, 1815, Jefferson had
come to realize that "experience has
shown that continued peace depends not
merely on our own justice and prudence,
but on that of others also."
Mr. President, this reflects the same
practical attitude which guided the
Founding Fathers in the formation of
the new Republic. However much the
Founding Fathers may have wished 'to
live by a policy of avoiding foreign
troubles, they recognized even then, hav-
ing witnessed the great weakness in the
management of military affairs by the
Continental Congress, that the Nation
cannot be safe unless there is a single
Commander in Chief with an unre-
stricted discretion to resist foreign dan-
gers wherever and whenever they may
exist.
In whichever capacity, from his Ex-
ecutive power or as Commander in Chief,
Presidents have throughout American
history-as already recognized by John
Quincy Adams in 1836-committed
American troops to danger points outside
the boundaries of the United States with-
out a declaration of war. These total
almost 200 occasions. These are not in-
stances in which the President- merely
called out the troops. This list includes
only actual battles overseas or landings
of American forces on foreign soil, ex-
cept for fewer than 10 instances when
major deployments of forces are in-
cluded. All of these Presidential actions
involved the serious danger of war.
Whatever these Presidents may other-
wise have written on the subject, it is
an unquestioned fact that almost every
one of them has reacted on his own initi-
ative to any crisis which he believed
might present, or might develop into, an
unacceptable threat against our national
security. There is a consistent course of
action by which Presidents have always
used whatever force they believed was
necessary and technologically available
at the particular moment to respond to
foreign threats.
President Buchanan, to cite an ex-
ample relied upon to the contrary in the
report of the Foreign Relations Com-
mittee, sent American troops into armed
action abroad on 11 occasions. In one
major episode occurring in 1858, Presi-
dent Buchanan risked an all-out conflict
with Great Britain by ordering, without
authority from Congress, a naval force
to protect all merchant vessels of the
United States on the high seas from
search or detention by the vessels of any
other nation. Fortunately, a conflict with
Great Britain was avoided at the last
moment by her abandonment under this
pressure of her claim to the right of visit
and search.
Thus, Mr. President, the idea that
Presidential troop commitments are a re-
cent development as alleged in the re-
port of the Foreign Relations Committee
is a myth. Moreover, the committee is in
error in its report when it claims that
prior to World War II "Presidential use
of the Armed Forces without congres-
sional authorization was confined for the
most part to the Western Hemisphere."
At least 103 undeclared hostilities have
.taken place outside the Western Hemi-
sphere and 53 of them occurred before
the 1900's.
Another point about these Presidential
initiatives that should be noted is the
fact that Congress had never until this
year passed a law blocking or, ordering
a halt to any one of them. The question
has come up many times and Congress
has taken many votes on the issue since
the birth of the Nation. For example, ef-
forts were made within Congress to ap-
prove _ resolutions rebuking President
Tyler because of his deployment of troops
to Texas in 1844; President Polk for his
similar deployment of troops into terri-
tory disputed with Mexico; President
Grant for his sending of a naval force
to the Dominican Republic to prevent
internal disorder there, and numerous
other deployments of American forces
ranging from the stationing of'troops in
Siberia after World War I to the occupa-
tions of Haiti and Nicaragua in the 1920's
and 1930's. Several votes were taken to
restrict the deployment of American
forces in these areas but none of the at-
tempts were successful. For Congress to
say that this longstanding interpretation
may now be reversed, runs counter to the
test of constitutional construction which
the Supreme Court has applied in resolv-
ing other conflicts between Congress and
the President.
The Supreme Court has applied the
principle of usage as a determining factor
in constitutional interpretation in at
least two cases involving the power of the
President in relation to Congress, United
States v. Midwest Oil Company, 236 U.S.
459 (1915) and Myers v. United States,
272 U.S. 52 (1926). In Myers, the Court
held that Congress could not shift gears
after 73 years of a particular practice
and start setting limitations on a Presi-
dential practice which it had never
before restrained, even though the prac-
tice had often been the subject of bitter
controversy. The Court held:
Nor can we concur . that when Con-
gress after full consideration and with the
acquiescence and long-practice of all the
branches of the government, has established
the construction of the Constitution, it may
by its subsequent legislation reverse such
construction. It is not given power by itself
thus to amend the Constitution. 272 U.S. 175.
In his letter to me of January 12 of this
year, Prof. Myers S. McDougal, perhaps
the prominent authority on foreign rela-
tions law under the Constitution, agreed
that our usage is an important guide to
constitutional interpretation.
Professor McDougal wrote:
The emphasis upon usage, as a test of Con-
stitutionality, in our early article' was based
upon the notions that a people's genuine
"constitution" is in how they live and coop-
erate under a basic charter and that the
most important authority in a democratic
community is in the expectations that people
create in each other by such living and co-
operation. The most important principle of
interpretation in any legal system I have
studied is that which requires examination
of "subsequent conduct" as an index of con-
temporary expectation.
Thus did Professor McDougal recon-
firm his reliance upon historical usage in
reaching a conclusion published in 1945
that-
Several distinct and well-established lines
of authority establish the President's inde-
pendent powers to make protective use of
the armed forces of the United States, with-
out awaiting a Congressional declaration of
war or any other specific statutory author-
ization. 54 Yale L.J. 534, 608 (1945).
Though the Supreme Court does not
appear to have addressed itself directly
to the question of Presidential discretion
in the use of Armed Force abroad during
an ongoing hostility, at least six mem-
bers of the current Supreme Court rec-
ognize- the President is vested with a
large area of independent and primary
power in this general area. Justice Stew-
art and Justice White have expressed
this view by writing that the Constitu-
tion endows the President with "a large
degree of unshared power in the conduct
of foreign affairs and the maintenance of
our national defense." 403 U.S. 713, 729
(1971).
Justice Blackmun has added that:
Article II of the great document vests in
the Executive Branch primary power over the
conduct of foreign affairs and places in that
branch the responsibility for the Nation's
safety. Id., at 761.
Justice Marshall believes that:
It is beyond cavil that the President has
broad powers by virtue of his primary re-
sponsibility for the conduct of our foreign
affairs and his position as Commander-in-
Chief. Id., at 741.
Also pertinent is a holding by Justice
Rehnquist, joined by Chief Justice Bur-
ger and Justice White, which rests
squarely upon the proposition that the
executive branch is charged "with pri-
mary responsibility for the conduct of
foreign affairs." 406 U.S. 759, 768 (1972).
In summary, the perspective of Amer-
ican history and of the real intent of the
Framers of the Constitution comes close
to justifying the statement made by then
President Abraham Lincoln "that meas-
ures otherwise unconstitutional might
become lawful by becoming indispens-
able to the preservation of the Constitu-
tion through the preservation of the
Nation."
This principle, which has been adhered
to throughout the long history of the
United States, means that the President
can take defensive measures, without
control by Congress, whenever in his
judgment it is necessary to defend the
important interests of the Nation. Mr.
President, I do not believe that Congress
can now change an arrangement which
is so firmly imbedded into the Constitu-
tion by mere legislation. Congress can-
not substitute a different plan of gov-
ernment by any process other than a
constitutional amendment.
Mr. President, so that there may be a
more complete discussion of the bill and
the fundamental issues available to my
colleagues, I ask unanimous consent that
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a West Virginia Law Review article pre-
pared by my legal assistant, Mr. Terry
Emerson, on war powers legislation
shall be printed in the RECORD.
There being no objection, the paper
was ordered to be printed in the RECORD,
as follows:
[Reprinted from Emerson, War Powers
Legislation, 74 West Virginia Law Review
53 (1972) ]
WAR POWERS LEGISLATION
1. INTRODUCTION
The Ninety-Second Congress has been
marked by the unusual drama of a vigorous
and persistent effort by the Legislative
Branch to confront the President, eyeball to
eyeball, over the primary issues of war and
peace? Nowhere has the contest been joined
in a more fundamental way, reaching to the
very core of the division of powers between
the two political branches, than in the bold
thrust by several senators to codify the
rules governing the circumstances in which
the United States may go to and remain in
war.2
No less than 19 senators have introduced
or cosponsored one of five different bills or
joint resolutions seeking to define the in-
stances when the President may use or deploy
the Armed Forces of the United States.'
Taken singly or severally, these measures
purport to demark the sole conditions under
which the President can initiate military
hostilities and to restrict his authority to
continue any such hostility beyond a brief
period unless and until he has obtained a
new and specific authorization from
Congress.4
It is the purpose of this article to examine
the validity of such a legislative approach
and, in so doing, to test its practical sound-
ness.
II. DESCRIPTION OF WAR POWERS BILLS
First, it is necessary to know what the
War Powers Bills attempt to do. Accordingly,
we might start by reviewing the bill, S. 731,
introduced by Senator Javits. The other
measures then can be discussed in relation
to how they differ from S. 731.
In its first section, the Javits bill provides
that the "use of Armed Ford of the United
States in military hostilities in the absence
of a declaration of war [shall] be governed
by the following rules. " 5 These rules
are (1) the President shall initiate military
hostilities only in four prescribed circum-
stances; 8 (2) the President shall report
promptly to Congress whenever military hos-
tilities commence; 7 (3) in no event- shall
such hostilities be sustained beyond thirty
days unless Congress enacts legislation to
this end;8 and (4) the President's authority
to sustain such hostilities may be terminated
short of thirty days by joint resolution of
Congress .0
The four situations in which the President
is limited to using the Armed Forces are:
"1. to repel a sudden attack against the
United States, its territories, and possessions;
"2. to repel an attack against the Armed
Forces of the United States on the high seas
or lawfully stationed on foreign territory;
"3. to protect the lives and property, as
may be required, of United States nationals
abroad; and
"4. to comply with a national commitment
resulting exclusively from affirmative action
taken by the executive and legislative
branches of the United States Government
through means of a treaty, convention, or
other legislative instrumentality specifically
intended to give effect to such a commit-
ment, where immediate military hostilities
by the Armed Forces of the United States are
required." 10
In addition, S. 731 creates a system by
Footnotes at end of article.
which legislative proceedings shall be ex-
pedited whenever a bill or resolution is in-
troduded continuing any military hostility
Initiated in one of the above four instances
or terminating any such hostility " Finally,
S. 731 expressly waives its application to
hostilities undertaken before its enactment?'
By omparison, S.J. Res. 59, introduced by
Senator Eagleton, limits the President to
committing U.S. forces to action only in
three of the four circumstances outlined in
S. 731, ommitting any authority for the
President to comply with a treaty commit-
men.t ~i, In fact, S.J. Res. 59 specifically man-
dates that no "treaty previously or hereafter
enter Into by the United States shall be
construed as authorizing or requiring the
Arms Forces of the United States to ,engage
in hostilities without further Congressional
authorization." u
Another distinguishing feature of the
Eagleton resolution is found in its express
declaration that "authorization to commit
the Aimed Forces of the United States to
hostilities may not be inferred from legisla-
tive enactments, including appropriation
bills which do not specifically include such
authorization." 1
In addition, S.J. Res. 59, unlike S. 731,
includes a definition of the term "hostili-
ties." ililaa In this way, S.J. Res. 59 not only ap-
plies to "land, air, or naval actions," 17 but
also to the deployment of American forces
abroad "under circumstances where an im-
mine ~t involvement in combat activities
with Other armed forces is a reasonable pos-
sibilit ." 18 United States military advisors
acco anying "regular or Irregular" troops
of a f reign country on any combat mission
are si#nilarly reached by the del nition 19
If a governing Congressional authorization
exists,' of which the resolution itself appears
to be one, the President is authorized to order
American Forces into a third country with
which, we are not then engaged in hostilities
when In hot pursuit of fleeing enemy forces
or when a clear and present danger exists
of an, imminent attack on our forces by
enemy units located in such third country'?
One; remaining difference between the
Javits, bill and the Eagleton resolution is the
requirment in S.J. Res. 59 that the Presi-
dent 4hall report periodically on the status
of any authorized hostilities,2' rather than
solely at the onset of such actions?9
The third War Powers legislation, S.J. Res.
95 by Senator Stennis, is essentially similar
to theI provisions contained in S.J. Res. 59.
The organization of sections is shifted some-
what, and Senator Stennis explicitly adds
autho ity for the President "to prevent or
defen against an imminent nuclear attack
on th United States," Y8 thereby making pre-
cise at is broadly allowed under the Other
proposals, Finally, S.J. Res. 95 refers to
"armed conflicts" 24 instead of "hostilities." 95
But the main substantive difference be-
tween the two joint resolutions lies in the
absence from S.J. Res. 95 of an explicit dis-
avow saying a national commitment can-
not arise from a treaty 2A and its omission
of the "hot pursuit" provision of S.J. Res.
5927 One change in the Stennis resolution
which, could become important in different
circurIstances Is its non-application solely to
the Vietnam conflict 98 This could mean that
if war should break out at some fresh spot
in the world, the action would be within the
scope of the proposal's limitation even
though it had started before the proposal
was enacted. But in the event an unexpected
military venture should develop before S.J.
Res. 69 became law, the action would not
be limited by the statute '8
S. 1$8090 introduced by Senator Bentsen, Is
almost identical with S.J. Res. 95, and the
above summary is adequate to describe its
provisions 34
The fifth War powers legislation is S.J. Res.
18, proposed by Senator Taft. It is most like
S. 731 in that it defines four circumstances
similar to those of that bill in which the
President is restricted to using military
force?9 Unlike S. 731, however, the Taft reso-
lution does not restrain the period of such
hostilities to thirty days .n Nor does it in.
clude any procedure for the speedy consider-
ation of legislation seeking to terminate the
action?4 Furthermore, S.J. Res. 18 extends
solely to situations involving the commit-
ment of forces "to combat," s while, S. 731
may possibly be construed to reach a much
broader category of troop movements and
uses'
Furthermore, S.J. Res. 18 does not contain
any provision exempting prior hostilities from
its restriction?' It does contain a detailed
part authorizing the continued deplcylnent
of United States troops in Vietnam so long
as necessary to accomplish a withdrawal of
our forces and the assumption by South Viet-
nam of its own defense."
III. CONSTITUTIONALITY OF WAR POWERS BILLS
A. Fundamental issues
It is immediately evident that each of the
War Powers Bills purports to lay dowel rigid
boundaries which supposedly will govern the
situations when the President may and may
not use United States military forces abroad.30
Four of the five measures attempt to ;specify
for how long our troops can be committed
even in the limited situations where the
President is allowed to act!8
But what is the source of Congressional
authority over the decision of when and
where to wage war? Does the Constitution
unequivocally deposit the controlling power
over military matters with Congress? Is there
a line of court decisions clearly supporting
the view that Congress can forbid the send-
ing of troops outside the country? Does his-
torical practice bear out the doctrine of
Congressional supremacy over the 'ass of
force in foreign affair? Or are the War :Powers
Bills founded upon misplaced emotio:is and
unproven postulates?
B. Textual arguments in support of
legislation
The task of presenting arguments for the
constitutional standing of-the War rowers
legislation has largely been assumed by Sen-
ator Javits. On March 5 of this year, he in-
serted a thorough brief on his bill, Incorpo-
rating a discussion of the textual arguments
and decided , cases, into the Congressional
Recordtl
His brief argues that:
"Article I, Section 8 confers on Congress
the major war powers--the powers to provide
for the common defense; to declare war; to
raise and support'anarmy and navy; to make
rules for the government and regulation of
the land and naval forces; to provide for
calling forth the militia to execute federal
laws, suppress insurrections and repel in-
vasions; and to provide for organizing;, arm-
ing, disciplining and governing the mili-
tary-and the authority to make all laws
necessary and proper to the execution of such
powers." 42
From this, the brief concludes "that the
role of war policy formulation was intended
for Congress and that the role of the Presi-
dent was to be the faithful execution cf Con-
gressional policy." 45 Thus. the executive
power as Commander in Chief is seen as only
a ministerial function," derived'from';he ex-
perience of the framers of the Const,tution
with the conduct of the Revolutionary War 8F
Like General George Washington, whose
commission from the Continental Congress
insisted upon Congressional control of that
war, 8 the "President, as Commander in Chief
was intended to be the executive arm of Con-
gress, carrying out its policy directives in
the prosecution of military hostilities." 47
The concept held by Senator Javits lias re-
ceived support from Professor Richsrd B.
Morris, who recently assured the Senate Com-
mittee on Foreign RelationS "it is a fair infer-
ence from the debates on ratification and
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from the learned analysis offered by the involved the same statutes and included a legislative authority." 71 In the author's
Federalist papers that the Warmaking- power declaration by Chief Justice Marshall to the opinion, this case, far from indicating a
of the President was little more than the effect that "the whole powers of 'war" were superior role for Congress, points to the
power to defend against imminent invasion "vested in Congress." ?2 Though heavily relied presence of a duty on the President to
when Congress was not in session." 48 upon by sponsors of the War Powers legisla- answer certain challenges against the nation
Not all commentators agree. Professor tion, the decision imposed absolutely no re- without waiting for Congress to baptize them
Quincy Wright wrote in 1969: striction upon the Executive's conduct of an with a name.72
"I conclude that the Constitution and ongoing war. What the Court would decide Another case cited in support of the War
practice under it have given the President, in the event Congress sought to shackle the Powers bills is Ex parte Milligan,73 in which
as Commander-in-Chief and conductor of President's discretion in the middle of an the Court held that neither Congress nor
foreign policy, legal authority to send the actual conflict presents a far different situa- the President could authorize the trial of a
armed forces abroad; to recognize foreign tion than the minor incident settled by this civilian before a military tribunal in a State
sion against the United States or a foreign
state; to -conduct foreign policy in a way to
invite foreign hostilities; and even to make
commitments which may require the future
use of force. By the exercise of these powers
he may nullify the theoretically, exclusive
power of Congress to declare war." 40
It is clear the above statement is not prin-
cipally a modern day concept, erected in awe
at the vast scope of Presidential conduct
over the last twenty years .51 Professor W. W.
Willoughby, author of a famous three volume
work on constitutional law, reached the same
finding in 1929. Willoughby declared that the
power of the President to send United States
forces outside the country in time of peace
"when this is deemed necessary or expedient
as a means of preserving or advancing the
foreign Interests or relations of the United
States" Is a "discretionary right constitu-
tionally vested in him, and, therefore, not
subject to congressional control." 61
The late Professor Edward Corwin, who was
selected by Congress to edit the congression-
ally sponsored Constitution Annotated,62 also
recognized the President's authority to com-
mit military forces abroad on his own ini-
tiative 68 In 1944, he wrote that this power
"had developed into an undefined power-
almost unchallenged from the first and oc-
casionally sanctified judicially-to employ
Without Congressional authorization the
armed forces in the protection of American
rights and Interests abrroad whenever nec-
essary." 64
In truth, there exists much informed opin-
ion from which one might doubt the restric-
tive view held by the advocates of War
Powers legislation65 Contrary to the position
asserted by a sponsor of one of these bills,
there Is no uniform viewpoint or visible
weight of opinion establishing that "the pro-
posals are constitutional." 66
C. Cases used in support of legislation
Regardless of theoretical arguments, what
have the courts decided? According to the
brief offered by Senator Javits, they have
held unfailingly that Congress may curb the
Executive's employment of military farce 67
a claim we shall now test.
Three of the cases relied upon by the War
Powers brief construe the application of early
statutes applicable to the undeclared Naval
War of 1798 to 1800, between the United
States and Francg.68 In point of fact, all of
the cases were decided after the event, subse-
quent to the close of hostilities and had no
bearing whatsoever on the conduct of an
ongoing war.
The first of the cases, Bas v. Tingy 60 (also
cited as The Eliza), involved the factual de-
termination of whether the term "enemy," as
used by Congress, referred to French priva-
teers. The sole purpose of the Court's exercise
was aimed at determining whether the owner
of the Eliza had to pay salvage under a spe-
cial federal law relating to the recapture of
ships from the "enemy," rather than under a
general statute which provided for payment
of a much lesser amount. It is true three jus-
tices made sweeping references to the limits
which Congress might set on hostilities, but
these statements were in no way necessary
to the decision of -the case 80
Talbot v. Seernan,61 decided a year later,
case. which had been loyal to the Union during
The third case, The Flying Fish,BS con- the Civil War. Though the case did involve,
strued the meaning of a Federal law provid- limits on the power of the President, as well
ing for forfeiture of American vessels em- as on that of Congress, the Court's language
ployed in commerce with France. While the might well be read as restricting the au-
statute empowered American war ships to thority of Congress to impede the Presi-
seize United States trading ships going into dent's command of military decisions once
French ports, President Adams directed the hostilities break out. Four of the justices
navy to capture United States vessels both remarked upon the power of Congress in
After the war was over, the Court held the
seizure of a Danish vessel upon leaving a
French port was unlawful.
Plainly the Court's discussion of the con-
flict between the Presidential order and the
Act of Congress was dictum. Neither the
President nor Congress had directed the
seizure of neutral vessels. The capture of a
Danish 4hip was not permitted under either
claim of authority. Further, the case was not
aimed at stopping the President from using
American forces. It turned on the civil obli-
gations of the comamnder of one American
frigate, not on the respective roles of Con-
gress and the President in the making of
war 64
Another significant factor downgrading the
relevance of,the above three cases has been
raised by Professor John Norton Moore.
Speaking before the Senate hearings on War
Powers legislation, Professor Moore advised
the committee "these cases involved an issue
squarely within a specific grant of authority
to Congress. That is, the power 'to make
Rules concerning Captures on Land and
Water.' Under the circumstances it hardly
seems surprising or relevant that a congres-
sional act concerning rules for capture was
preferred by the Court to a presidential inter-
pretation of that act." 86
Further question has been raised about
this early line of cases by Secretary of State
William P. Rogers, who reminded the Senate
Committee on Foreign Relations that they
were "decided before the doctrine of 'political
questions' was formulated by Chief Justice
Marshall in Foster v. Neilson, 27 U.S. (2 Pet.)
253 (1829) and ... a similar case would prob-
ably never reach decision on the merits
today." 80
Indeed, one of the sponsors of S. 731 writes:
"Also, it is conceded that should war powers
legislation be enacted and result in a con-
frontation between the President and the
Congress, there is little chance of judicial
interpretation." 67
Chronologically, the next decision relied
upon in the War Powers brief Is the Prize
Cases," a Civil War judgment regarding the
legality of President Lincoln's blockade
against the Confederacy. It is claimed this
case proves "the Court's insistence upon
Congressional authorization as the basis of
Presidential war powers." 89 Yet Justice Grier,
who wrote the Court's opinion, carefully ex-
plained the issue was not whether Congress
had authorized the blockade, but whether
the President, acting alone, possessed a right
to make military action "on the principles
of international law, as known and acknowl-
edged among civilized States?" 70
In upholding President Lincoln's right to
meet the insurrection, the Court said: "If a
war be made by invasion of a foreign nation,
the President is not only authorized but
bound to resist force by force. He does not
initiate the war, but is bound to accept the
challenge without waiting for any special
time of war as follows: "This power neces-
sarily extends to all legislation essential to
the prosecution of war with vigor and suc-
cess, except such as interferes with the com-
mand of the forces and the conduct of cam-
paigns. That power and duty belong to the
President as commander-in-chief." 74
Another case which may actually enlarge
upon the President's power, but has been
cited as authority for the War Powers legis-
lation," is United States v. Midwest Oil Co7n-
pany7' This case considered the validity of
a Presidential decree which withdrew from
private acquisition all public lands contain-
ing petroleum. The President had issued the
order even though Congress had passed a
law making these same lands free and open
to purchase by United States citizens 77
Nevertheless, the Court found that the
Executive had been making similar orders
contrary to Acts of Congress for a long time
and, as a result, had acquired a power to
do what it had been doing 78 As we shall see
in a later part of this article, the Midwest
doctrine may thereby be applicable to sup-
port the practice of Presidents to commit
United States troops overseas without Con-
gressional direction70
The remaining decision relied on in the
War Powers brief is the "Steel Seizure" 80
case which arose out of President Truman's
attempted takeover of the nation's major
steel mills. Though the Court held, six to
three, the President lacked authority on his
own to take possession of private property,
even on the ground of his role as Commander
in Chief, it is plain the Court's majority
treated the case as a domestic issue far re-
moved from matters of day-to-day fighting
in a theater of war 07
Justice Jackson appears to have expressed
the mood of the Court aptly when he wrote:
"We should not use this occasion to 'cir-
cumscribe,' much less to contract, the lawful
role of the President as Commander-in-
Chief. I should indulge the widest latitude
of interpretation to sustain his exclusive
function to comand the instruments of na-
tional force, at least when turned against
the outside world for the security of our
society." 82
Accordingly; it is believed the "Steel Seiz-
ure" case is mistakenly cited as being ap-
plicable to any situation regarding the use
of United States troops outside the country
for the protection of American interests. In
the words of Secretary of State William P.
Rogers, "the precise issue in that case was
not the President's authority to conduct
hostilities but the scope of his power over
a clearly domestic matter-labor manage-
ment relations." 83
A some what analogous decision, inspiring
a multitude of opinions and touching on the
fringes of the President's War Powers, with
no direct limit on his right to deploy forces,
is the New York Times case 84 relating to the
publication of the so-called Pentagon Papers.
In this case, Justice Douglas, joined by Jus-
tice Black, aimed a thrust at the President
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by proclaiming "[n]owhere are presidential
wars authorized." 85 But this view was not
taken up by any other member of the Court's
majortiy, nor is it decisive of the Court's
ruling.
D. Source of President's powers over military
and foreign affairs
Numerous authorities have described in
detail the vast scope of the President's au-
thority to employ force abroad 80 In general,
these observers point to four distinct powers
of the President as the root of his independ-
ent authority. The powers are centered in his
acquisition of all the "Executive Power" of a
great and sovereign nation,97 in his mandate
to initiate and conduct foreign policy,' in
his right and duty to "take care that the
laws be faithfully executed, "5 and in his
designation as Commander in Chief?
The very first sentence of article II of the
Constitution reads: "The Executive Power
shall be vested in a President of the United
States of America." 91 As Solicitor General
Erwin Griswold has recently noted, the grant
of Executive power "is not a merely passive
grant." 99
It was Alexander Hamilton who first used
this grant in arguing that the President's
role in international matters is a positive
one m In fact, Hamilton claimed this clause
had vested in the President the inherent
powers held by any sovereign nation, includ-
ing the right to form policy which "may, in
its consequences, affect the exercise of the
power of the Legislature to declare war." e4
The Hamiltonian concept of Inherent powers
over foreign affairs appears to have influ-
enced Chief Justice John Marshall, who in
1800 while still a Member of the House of
Representatives, conceived the familiar
quote: "The President is the sole organ of
the nation in its external relations, and its
sole representative with foreign nations." 96
In 1971, Justice Harlan, Chief Justice Bur-
ger, and Justice Blackmun breathed fresh
life into Marshall's characterization by writ-
ing: "From that time, shortly after the
founding of the Nation, to this, there has
been no substantial challenge to this de-
scription o fthe scope of executive power." 00
The reference by these three justices to the
President's "constitutional primacy in the
field of foreign affairs" was echoed in the
same case by Justice Thurgood Marshall
who declared: "[Iit is beyond cavil that the
President has broad powers by virtue of his
primary responsibility for the conduct of our
foreign affairs and his position as Com-
mander-in-Chief." 97
All four justices cited with approval 08 the
landmark case of United States v. Curtiss-
Wright Export Corp.,? in which the Supreme
Court had embraced the doctrine of "inher-
ent" powers over the conduct of foreign af-
fairs. There the nation's highest tribunal
held it was dealing with "the very delicate,
plenary and exclusive power of the President
as the sole organ of the federal government
in the field of international relations-a
power which does not require as a basis for
its exercise an act of Congress . . . . " loo
The third pertinent power of the President
is derived from his duty and right to execute
the laws, an implicit authority which often
is overlooked in contemporary discussions of
the war powers. Professor Quincy Wright has
remarked on this authority:
The duty to execute the laws is not limited
to the enforcement of acts of Congress and
treaties of the United States, but includes
also "the rights, duties and obligations grow-
ing out of the constitution Itself, our inter-
national relations, and all the protection im-
plied by the nature of the government un-
der the constitution." 10,
Corwin has described the implications of
this doctrine as follows:
Thanks to the same capacity to base ac-
tion directly on his own reading of inter-
national law--A capacity which the Court
recognized in the NeagZe case-the Presi-
dent has been able to gather to himself
powers with respect to warmaking which ill
accord with the specific delegation in the
Constitution of the war-declaring power to
Congtess102
Thus, the implied power of the President
to interpret for himself the scope of our
international obligations has enabled him
to validly exercise powers which might other-
wise appear to have been left to the proper
authority of Congress103
It has also been judicially determined that
"the President's duty to execute the laws
includes a duty to protect citizens abroad.
... , Thus said Justice Nelson, who sitting
as a trial judge in 1880 upheld the authority
of the President to take whatever action he
determines proper to protect "the lives, lib-
erty,and property" of the citizen abroad,
without awaiting word from Congress."" The
corollary right of a citizen abroad "to de-
mand the care and protection of the Federal
government over his life, liberty, and prop-
erty"', was subsequently recognized by the
Supr$mp Court,108 which expressly included
this protection among the privileges and im-
munties of citizenship guaranteed by the
Constltution."5
Not only is there persuasive domestic law
on the issue of intervention abroad for the
protection of citizens, but J. Reuben Clark,
citing several international authorities,
claims:
There is considerable authority for the
proposition that such interposition by one
state; in the internal affairs of another state
for the purpose of affording adequate pro-
tection to the citizens of one resident in the
other as well as for the protection of the
property of such citizens, is not only not im-
proper, but, on the contrary, is based upon,
is in accord with, and is the exercise of a right
recognized by International law108
In addition, the right of the nation to de-
fend' itself, as well as its citizens, Is clearly
established in both international and domes-
tic lawl?D
A fourth source of the President's powers
in the field of war making rests upon his
designation as Commander In Chief u?
This power has been succinctly defined to
encompass "the conduct of all military oper-
ations in time of peace and of war, thus em-
brac{ng control of 'the disposition of troops,
the direction of vessels of war and the plan-
ning and execution of campaigns," and to be
"exclusive-and independent of Congressional
power." 111
What little judicial holdings there are on
this power suggest it is largely an unfettered
one. For example, in 1886, the Supreme Court
pointedly stated: "Congress cannot direct the
conduct of campaigns." 179 In 1897, the High
Court affirmed a decision by the Court of
Claims which held: "Congress cannot in the
disguise of `rules for the government' of the
Army impair the authority of the Presi-
dent) as Commander in Chief." m
E. Historical overview of President's war
powers
Some twenty-five years ago, James Rogers,
a former Assistant Secretary of State wrote:
"It must be evident that the control of for-
eignpolicy and of the armed forces left to
the President by the Constitution and rein-
forced by a century and half of augmenta-
tion, reduces the reservation of the power to
'declare war' to a mechanical step, sometimes
even omitted." 114 What had happened to
allow Rogers to assert such a bold claim? It
was his discovery, unknown and unnoticed by
most Americans, that "[t]he Executive has
used, force abroad at least a hundred times
to accomplish national purposes without
reference to Congress." 115
This astonishing total was evaluated by
Professor Corwin, who stated: "While invit-
ing some pruning, the list demonstra;es be-
yond peradventure the power of the Presi-
dent, as Chief Executive and Commander in
Chief, to judge whether a situation requires
the use of available forces to support Amer-
ican rights abroad and to take action in
accordance with that decision." 118
Clearly little wars are not "phenomena
new to the national experience," 117 a> some
authorities, obsessed by the Vietnam war,
would have us believe.118 Indeed, by April of
1971, Senator Barry Goldwater inforir ed the
Senate War Powers hearing that research
at his direction had "turned up 153 such
actions." 110 The Goldwater study is a con-
tinuing one and a fresh review of tk.e sub-
ject by the author in preparation for future
testimony by Senator Goldwater reveal s there
are at least 192 120 separate military a ngage-
ments initiated by the Executive branch
without a declaration of war from '.798 to
1971121 '
The list seems particularly imposing since
its total consists of hostilities where actual
fighting took place, landings were tirade on
foreign soil, or United States citizens were
evacuated. No precedents we listed involving
mere deployment of forces csr draft simply
to maintain an American presence, even if
the deployment constituted an alert accom-
panted by an advanced state of readiness,
except for some eight instances in which the
risk of was was particularly grave. N,r have
any military operations been offered a> prece-
dents which were subsequently die avowed
or repudiated by the Executive 199
Are these precedents "minor undertak-
ings"193 and "short-lived"194 as clix-ged by
some critics? Are the incidents conlined to
the Western Hemisphere and contiguous
territory up to "the last twenty yeare or so,"
with the solo exception of-the Boxer Expedi-
tion, as claimed by Henry Steele Com-
mager? IN The author believes the record
stands for itself. We might note first that out
of the 192 actions listed, 100 occurred outside
the Western Hemisphere' 85 of them taking
place before "the last twenty years o' so." 19r
To which fact, we might -add that 81 hos-
tilities constituted actualtombat operations
or ultimatums tantamount to the use of
force 198
Ninety-three engagements continied for
longer than 30 daysl'5 NO more than 81 of
the precedents; 3? less than half, could argu-
ably have been initiated with the support of
a legislative instrumentality. At lea,;t 43 of
the precedents 131 were ' c9aculated and ideo-
logical" lag in the sense that they committed
the United States outside its own territory in
order to advance major, long-range national
interests stretching far beyond the immediate
protection of its citizens or territory.
Were the operations minor? In 1854, at a
time when American forces did not exceed
50,000 men, Commodore Perry took 2,000 of
them to the other side of the world :.n order
to pressure Japan into reaching a commercial
treaty with us.'= Between 1899 and 1901, the
United States used 128,468 troops to put
down the Philippine Insm'rection 184
After World War I had ended, we landed
5,000 soldiers at Archangel, Russia, and 9,000
more in Siberia, to aid the anti-Bolsheviks
and to forestall Japanese :expansionist plans
in Siberis135 From 1926 to 1933, United States
Marines fought more than 150 battles in
Nicaragua and lost 97 men in seekin? to Poll
what has been referred to as the "first at-
tempt of Communism to infiltrat3 Latin
America." 138
In 1927, the United States had 6,00) troops
ashore in China and 44 naval vessel s in its
waters 197 In numerous other instances, the
United States has put ashore hundreds and
even thousands of forces on foreign lands 108
Put in the perspective of their own times,
it is believed these interventions cannot be
classified as "minor." Rather, the author
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would agree with the assessment of Professor "I think the Javits proposal requiring the ure created by the legislation, this vote likely
Henry Monaghan that: President in effect to get out if Congress does would have occurred (Congress then having
[Wlith ever-increasing frequency, presi- not act within 30 days is dangerous." 152 been in session) within a matter of a few
dents have employed that amount of force These thoughts have been refined and ex- days. Thus, Congress would have voted right
they deemed necessary to accomplish their panded by others who are in outright opposi- at the peak of emotional excitement and
foreign policy objectives. When little force tion to passage of War Powers legislation163 public concern over the missile threat.
was needed (e.g., in our incursions in Latin Secretary of State William P. Rogers cau- One can easily suppose in the setting of
America), little was used;, when larger com- tioned those who might conceive of the War the time-with enemy missiles being aimed
mitments were necessary, they too were Powers legislation as serving the end of peace at cities holding 80 million American citizens,
forthcoming. Whatever the intention of the by saying: "Moreover, requiring prior con- with reports arriving of attacks on American
framers, the military machine has become gressional authorization for deployment of reconnaissance planes, and with the killing
simply an instrument for the achievement of forces can deprive the President of a val- of an American pilot over Cuba 166-that a
foreign policy goals, which, in turn, have be- uable Instrument of diplomacy which is used majority in Congress with one eye on elec-
come a central responsibility of the presi- most often to calm a crisis rather than en- tions only weeks away, would have favored
dency x36 flame it." 164 legislation directing an all-out bombardment
Further, the author believes Professor Mon- To which he added: of Cuba or even an invasion.
aghan is correct in telling us that "history "There is another consideration. To cir- As Senator Goldwater observed: "Those
has legitimited the practice of presidential cumscribe presidential ability to act in emer- who look to Congress as the ultimate haven
war-making." 140 In Monaghan's words, "A gency situations--or even to appear to of peaceful thinking might thumb through
practice so deeply embedded in our govern- weaken it-would run the grave risk of mis- the pages of Robert Kennedy's short manu-
mental
tr
t
h
ld b
t
e
s
uc
ure s
ou
e
reat
d as decisive calculation by a potential enemy regarding
of the Constitutional issue." 141 the ability of the United States to act in a
With this historical record in back of us, crisis. This might embolden such a nation
the principle laid down by the Supreme Court to provoke crises or take other actions which
in Midwest Oil 142 gains added relevance. Here undermine international peace and secu-
the Court had announced "that in deter- rity." as
mining the meaning of a statute or the Professor James MacGregor Burns, the re-
existence of a power, weight shall be given to cipient of a Pulitzer Prize for his skills as
the usage itself-even when the validity of a ' political historian, has gone further. He
the practice is the subject of investiga- has testified that any legislation which would
tion." 143 encumber the President's ability to respond
Certainly, the deployment of forces abroad and adjust to changing world situations as
on the initiative of the President alone is a he determines proper will remove the one
"long-continued practice" extending back- essential ingredient preventing World War
ward far longer than the usage found to be III-flexibility.166 Dr. Burns warned that im-
valid in the Midwest Oil case.'" Furthermore, posing artificial restrictions on Executive
Congress has known of and acquiesced in the discretion "may not lead to peace but to war,
President's usage for nearly a century and a as foreign adversaries estimate that the
half now, part of the time arguably in the United States will not respond to a threat
face of a limiting Congressional statutel4b to world peace because of legislative restric-
One instance when it is clear the President tions on the executive." 157
violated the terms of a Congressional statute The fear expressed by Dr. Burns was re-
attempting to govern his power to deploy cently taken up by former Under Secretary of
troops abroad is the experience of the na- State George W. Ball, who is credited with
tion under the Selective Service Act of being a dove in the high ranks of the John-
1940.146 The law expressly provided that no son Administration, Mr. Ball reminds us that
draftees were to be employed beyond the the Neutrality Acts adopted in the aftermath
limits of the Western Hemisphere except in of World War I "very probably" impeded the
territories and possessions of the United United States from taking firm steps which
States.'' would have averted World War 11.156 This
Notwithstanding the Congressional pro- illustration leads Mr. Ball to ask how does
hibition, President Roosevelt deployed our one draft a statute that will make it possi-
troops, including draftees, to occupy Ice- ble for Congress to play a role "in shaping
land and Greenland several months before fundamental decisions that may lead to war
World War II had been declared148 Iceland, without inhibiting the President in doing
however, is over 2,300 miles away from the whatever is necessary" to avert some future
closest point in the United States and is catastrophe parallel to World War II.16o
invariably placed in the section on Europe Senator Barry Goldwater sounded the same
in any prominent world atlas. If nothing alarm in his appearance before the War
more, the incident shows Presidents will Powers hearings. He charged the legislation
ignore Congressional limitations when they "will undermine the credibility of our most
believe vital American interests are undeni- basic defense agreements such as NATO.
ably at stake-.119 With one swipe, our 42 defense pacts will be
IV. POLICY CONSIDERATIONS chopped into 30-day wonders, if that." loo
Regardless of the legality or illegality of
the War Powers legislation, are the measures
wise or proper from a practical standpoint?
Can any Member of Congress, or Congress
collectively, foresee all contingencies that
may arise in the future? Might the War
Powers legislation unwittingly turn the
tables on its sponsors by exciting a situation
or pushing a reluctant President into broader
action than he wishes? A partial answer
might be evident from the fact that many
of the same authorities who have testified
in favor of the general concept of War Powers
legislation nevertheless have uttered grave
concerns about the wisdom of these meas-
ures in practice.
For example, McGeorge Bundy warned "no
single rule is likely to meet all our needs, and
in particular I think it is dangerous to try
to deal with the future by legislating against
the past." 160 Alexander Bickel has confessed:
"Codification seems to me difficult, heavily
prone' to error, quite possibly dangerous, and
unnecessary," 161 William D. Rogers remarked:
Senator Goldwater argued: "Thereby, the
proposed bill will place all our treaty obliga-
tions in a state of permanent doubt. No ally
can ever know if the United States will stand
by it for more than 30 days; and even then, it
cannot be certain whether Congress will shut
off our aid sooner." 161 But there is another
side to the coin. If Congress has the right to
legislate concerning the rules of war as is
argued by the sponsors of War Powers leg-
islation; 02 Congress also possesses the power
to order-the President into broader hostilities
than he wishes. This development could ac-
tually occur under a provision of these bills
in their present form which establishes a
procedure for expedited consideration by
Congress of legislation designed to sustain
hostilities beyond 30 days 163
The danger can be tested against actual
history. For example, if the War Power leg-
islation had been in effect at the time of the
script on the Cuban Missile Crises." 100 In
this book, the late Senator Kennedy recounts
that of all the deliberations which preceded
his brother's broadcast to the nation on the
crisis, his session with the leaders of Con-
gress "was the most difficult. meeting." 107
According to Robert Kennedy:
"Many Congressional leaders were sharp
in their criticism. They felt the President
should take more forceful action, a military
attack or invasion, and that the blockade
was far too weak a response. Senator Richard
B. Russell of Georgia said he could not live
with himself if he did not say in the strong-
est possible terms how important it was that
we act with greater strength than the Presi-
dent was contemplating.
"Senator J. William Fulbright of Arkansas
also strongly advised military action rather
than such a weak step as the blockade." 168
In light of this illustration, Senator Gold-
water asks: "Is it not possible Congress
might, when confronted with dramatic pres-
sure for making an immediate decision, vote
in favor of a military strike? Are the Mem-
bers of Congress more immune to emotional,
impulsive reactions than other humans?" 189
In the event Congress should decide to
steer our nation into expanded hostilities,
the authors of War Powers legislation would
leave the President no exit. Their whole argu-
ment for the power of Congress to pass such
legislation is equarely based upon the prop-
osition that Congress controls the War
Powers and that the President must faith-
fully carry out the directives enacted by Con-
gress170 According to the brief offered by
Senator Javits, "the President has no right
to contravene such legislation." 171
There is another problem. What about the
ability of the President to respond to specific,
sudden emergencies? Is the assurance of
Irving Brant correct that the War Powers
legislation "does not interfere in the least
with the handling of .any emergency, from
minor property damage to nuclear holo-
caust?" 172
Perhaps reference to some actual situations
will provide an answer. Oddly enough, the
proposal introduced by a Senator from New
York, himself Jewish, as well as the other
War Powers legislation, would prohibit the
United States from acting to defend the state
of Israel. This result occurs because under
the Javits bill, the President may act to com-
ply with a national commitment only if the
commitment results exclusively from a "leg-
islative instrumentality specifically intended
to give effect to such a commitment. ..." 173
But this country has no legislative com-
mitment to defend the security of Israel.
There is no treaty or convention or resolution
authorizing the United States to assist in
preserving Israel's independence174 Senator
Goldwater has set the scene:
CV ban missile crisis,'" Congress would have "No matter that Arab fanatics may be
been required to act swiftly, on the matter seeking to make good on their aim of shoving
of continuing the deployment of forces in the Israelis into the sea. No matter that ap-
the Caribbean once the 30-day period pos- proximately 20,000 Soviet personnel may be
sibly allowed by the legislation had expired. manning SA-3 missile sites and advanced jet
Under the telescoped parliamentary proced- fighters while massive Egyptian tank forces
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mount an invasion on disputed Sinai terrl- been aation by the Congress without alert- that he can deploy fleets, land troops, order
tory. . . Regardless of the humanitarian ing the: Simbas as to what was up; the re- airlifts, or conduct battles in order to protect
exigencies and the dire consequences on sult would almost certainly have been the or rescue United States citizens and officials,
European security, the War Powers Bill pro- summary execution of American Consular together with their propertg200 It is equally
hibits an immediate response by the United officers and a considerable number of Amer- obvious he can employ the military forces
States to forestall an Arab conquest of Is- ican citizens?s* against an outside enemy who attacks U.aited
rael." 176 As conpelling as the humanitarian inter- States territory or poses an imminent threat
Senator Goldwater has addect ests are in the Congo situation, it is doubt- of such an attackl3
"Oh yes, we might rush in Air Force trans- ful the joint rescue mission would have been The author believes any legislation which
port planes to whisk our own Citizens out of permitted under the rigid lines set by the seeks to lay down rules restricting ill ad-
danger. We might even send a.pontingent of War Powers legislation. Insofar as the mili- vance the President's ability to use nilitary
marines into cities where our grnbassies and tary operation affected 97% of the persons forces in these circumstances is illegal The
legations are located to aid them. evacuated, it would not have been legal un- Constitution does not allow Congress to pro-
"But when our forces are called upon to der theise proposals because the individuals hibit the President from acting in these de-
act for broader purposes-for reasons of vital were not United States citizensl?6 Of course, fensive situations; nor does it permit Con-
strategic interests such as saving another na- if the proposals could be construed broadly gress to impose statutory limitations oa the
Lion's people from annihilation-the war enough to permit the President to employ period of time during which the President
powers bill will halt our forces short. This troops in another country under the guise may act in these conditions. To this extent,
would be carrying out a national commit- of protecting Americans abroad, even though the War Powers legislation is clearly Uiicon-
ment " 146 the main purpose or result reaches far be- stitutional 162
Nor is the scenario described by Senator yond that end, the President can initiate The President possesses authority which
Goldwater an implausible one. The United the use of force in nearly every conceivable stretches far beyond that of making an ad
States has already Intervened once in the situation without running afoul of the pro- hoc, limited response to an emergency sphere
Arab-Israeli crisis in a way that would be posals.Today United States citizens can be there is a widely recognized and immediate
specifically curbed under, any of the pending found in every nation of the world, includ- threat to the safety of United States citizens
War Powers leglslation177 This incident oc- ing Communist China, a fact which would or the intergity of United States territory,
curred in June of 1967, during the six-day enable the President to employ force abroad - Whenever the President, as the primary au-
Middle East war, after President Johnson at any, place he determines necessary under thor for 'foreign policy and the exclusive
had heard over the hotline that Russia "had the excuse of protecting our citizens. Commander in Chief of United States forces
reached a decision that they were prepared This, discussion should not be concluded determines there is a future danger to the
to do what was necessary, including using without referring to a fundamental question ultimate preservation of the United Mates
the military" to stop the advance of Israeli posed by some critics of Presidential inita- and its citizens which is highly probable of
troops into Arab territory 1'B tives. The flavor is Caught in the statement arising either as a direct or indirect result of
As President Johnson understood it at the by Henry Steele Commager who claims that, a present crisis, he may commit United States
time "unless the Israelis halt operations with the exception of the Civil War and per- forces on his own authority in any Way he
within the next five hours the Soviets will haps the Korean war: deems fit for the purpose of defending the
take necessary action, including mili- "[T]here are no instances in our history future security of this country and its two
tary ...." In response President Johnson where the use of war making powers by the hundred and ten million citizens193
reports he ordered the U.S. 6th Fleet to move Executive without authority of Congress was In the highly complex, interrelated society
to within 50 miles off the Syrian coast as "a clearly', and incontrovertibly required by the of the Twentieth Century, Where the s:'zdden
sign that the Soviet Union would have to nature: of the emergency which the nation domination of an ocean strait, or control of
deal with us." 170 faced but that on the contrary in almost a critical resource, or deployment of a radi-
Though the preceding illustration refers every Instance the long run interests of the cally new weapon, might install an aggres-
solely to Israel, the identical problem exists nation, would have been better promoted by sive nation in a position of exclusive supe-
under the Javits bill in the case of any other consultation and delay186 riority from which it might dictate terms to
country with which the United States has it is difficult to answer matters of sub- all other countries, the Eighteenth CEtntury
no national commitment sanctified by action jective judgment. But we know of one in- concept of repelling "sudden attacks" must
of Congress. stance, in which Secretary Rusk believes be broadened to encompass defense against
Another situation in which' the President "consultation and delay" would have led to threats which are probable of becoming ir-
would be barred from taking independent the massacre of some 2,000 human beings] removable once allowed to develop uachal-
action under most, if not all, of the Wei' Would these persons and their families con- lenged out of present moves. The crucial test
Powers legislation is the deployment of troops elude the use of military forces was not in the modern world has to be whether the
or equipment to back up United States for- clearly, required? damaging consequences to United Sta;es se-
eign policy objectives -in times, of great crises, If you will ask the citizens of the South- curity are equally grave and equally lil:eiy to
such as the recurrent Communist pressures west Whether they think it was necessary for happen in the natural flowof events as the
on free Berlin 180 In this connection, the De- President Tyler and Polk to deploy Amer- ,sudden attack" which the Framers of the
partment of the Navy has compiled a list scan troops in Mexican territory to protect Constitution comprehended in their personal
of what it calls 65 "wars/near wars" since the people of what was then the independ- experience.
1946, in which naval units were involved, ant Republic of Texas and what is now the It is strange indeed that many of th+: same
alerted, or redeployed181 All of these move- State of Texas, . you might get a pretty political liberals who make highly moving
ments at the initiative of the President would vocal and unanimous reply to the question, appeals for expanding the scope of _:'ederal
be prohibited under the War Powers legisla- Or if you will consider the stakes riding on jurisdiction and obligation on behalf of
tion to the extent that they back up a na- a swift American response to Russian brink- urban relief, hyphenated-Americans, and
tional commitment to a foreign country, with manship during the Cuban missile crisis, other social-welfare causes, deny their own
the single exception -of commitments spe- when inaction would have left the United preachments about a "living Constitution"
cifically dependent upon a treaty or con- States impotent to remove missiles which when it comes to the President's ability to
vention which could be implemented for $0 were being aimed at American cities holding defend America's freedoms. Their unbending
days under the Javits bill alone 162 80 million citizens,'% most would agree "sec- reliance upon brief debates at the Co:istitu-
One more example, pinpointing a need for ond-thoughts" would have made a terrible tional Convention as conveying the final
broad Executive discretion, is-the 1964 Congo difference to the well-being of these 80 mil- meaning of the clause "to declared War"
rescue effort which saved 2,000 persons, in- lion citizens. marks these commentators as the "strict
cluding about 60 Americans, who were being The truth is that we just cannot predict constructionists" of all tih1e1A4
held hostage by Congolese rebelslx? Former The advocates of War Powers legislation
Secretary of State Rusk has described the what chain of events might have been in- have, in general, allowed their repuisfon over
these
incident stituted if we had failed to act in each of
the tragediy of Vietnam to misguide them
these 192 military incidents. To study them into a strained and rigid interpreta,;ion of
"On one occasion, a large number of Euro- under a microscope might be worthwhile for the Constitution which is both wrong and
peans, including the staff of the American a scholar located in an ivy-covered class-
Consulate and other American private citi- room,- but for a President, faced with 20th unrealistic. Weaving through almost all
e
zens, were being held as hostages by a savage Century reality,, even a week's delay might testimony in support of -War Powers notsla tion is group in the Eastern Congo called Simbas. see the overrun of an important friendly na- 'another r V theme that there must t not be
Private negotiations with the Simbas over a tion or the rise of an irremovable threat to Vietnam." 195 In fact, when Senator
pening
Javits introduced his bill, his cpening
hostages. Threats of execution and brutal
torture- mounted. We and the Belgians decid-
ed (with the -approval of the government of
the Congo) to drop Belgian paratroopers into
the area by American aircraft in order to
rescue these hostages who Were in a truly
desperate situation. There could not have
V. CONCLUSION
The verdict of history, reinforced by occa-
sional judicial pronouncements, convinces
the author that the President possesses a
broad authority of independent initiative
over the use of military force outside the
United States. It is settled beyond question
under both domestic and international. law,
sentence declared: "[T]he most compelling
lesson of the 1960's for the United Bates Is
our need to devise procedures to prevent
future undeclared Wars as in Vietnam 15
The ironical error about using Vietnam as
the reason for curbing Presidential initia-
tives is that Congress itself has been deeply
involved with expansion of the Vietnam
conflict each step of the way. 197 Senator
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Goldwater has documented at least 24 acts
of Congress supporting our continued pres-
ence in Vietnam, both before and after the
much discussed Gulf of Tonkin Resolution 198
This view has received judicial verifica-
tion as well. The U.S. Court of Appeals for
the Second Circuit ruled on April 20, 1971,
that: "The Congress and the Executive have
taken mutual and joint action in the pros-
ecution and support of military operations
in Southeast Asia from the beginning of
those operations." 10B
In concluding, the author does not wish
to leave the impression he believes Congress
and the public are helpless to influnce deci-
sions on current and prospective foreign
military policies. For one thing, a free press
admonishing and criticizing the policy of an
Executive or the Congress can mobilize
public opinion In sufficient strength to
chknge the course of action. Vietnam shows
us that much. .
For another, Congress can refuse to raise
an Armed Force of the size an "activist"
President requires to intervene at several
points across the globe. As a foreshadow of
events to come, the 92nd Congress has for
the first time set an annual numerical ceil-
ing on the total authorized active duty
strength levels of each of the regular forces.211
Next, Congress can and must make indi-
vidual determinations about specific mili-
tary actions as they develop every time it
votes on appropriations to continue these
actions201 In this manner, Congress will be
making its decision in the setting of the
precise emergency or problem at hand. It
will not be trying to erect rules for every
kind of predictable and unpredictable event
to come in the long-range future, but will be
dealing with known facts and a specific re-
quest for a certain number of dollars or a
certain number of helicopters, fighter air-
craft, or other weapons?62
Finally, both Congress and the President
can adhere to the Constitutional expectation
that the two political branches of our gov-
ernment must spend an enormous amount
of time working with each other to avoid
the possibility of an Impasse at moments
of crisis. The Secretary of State, Secretary
of Defense, and other ranking decision-
makers in each administration must be will-
ing to meet with committees and subcom-
mittees of Congress hundreds of times if
necessary trying to work together.
For its part, Congress must have the sense
of mind and political courage to shape a
recognizable position from which the Presi-
dent can be guided. This means the perti-
nent committees must develop an almost
unanimous view on important issues, so that
the President can clearly know the position
of the Senate, or the House, as a corporate
body, rather than having to choose from
among the individual points of view of a
hundred or so different members. Thereby,
the two branches could better move in uni-
son according to the true anticipation of our
Founding Fathers.
FOOTNOTES
The Senate alone has spent parts of 61
days of Floor debate on issues affecting the
President's war making machinery in the first
143 legislative days of the 92nd Congress.
These deliberations centered primarily
around H.R. 6531, the Military Draft Exten-
sion Bill (45 days), and H.R. 8687, the Mili-
tary Procurement Authorization Act (13
days).
2 See S. 731, S. 1880, S.J. Res. 18, S.J. Res.
59, and S.J. Res. 95, and 92d Congress, let
Sess. (1971). But of. H.J. Res, 1, 92d Cong.,
1st Sess., passed by the House of Representa-
tives on August 2, 1971, in which "Congress
reaffirms its powers 'under the Constitution
to declare war," without specifying any rules
for the conduct of military hostilities.
8 Mr. Davits has Introduced S. 731 for him-
self, Mr. Bayh, Mr. Mathias, Mr. Packwood,
Mr. Pell, Mr. Spong, Mr. Weicker and Mr.
Williams. Mr. Bentsen has introduced S. 1880
for himself and Mr. Byrd of W. Va. Mr. Taft
has introduced S.J. Res. 18. Mr. Eagleton has
introduced S.J. Res. 59 for himself, Mr.
Inouye, Mr. McGovern, Mr. Montoya, and Mr.
Stevenson. Mr. Stennis has introduced S.T.
Has. 95 for himself, Mr. Mansfield, and Mr.
Roth. On December 6, 1971, after this article
was submitted, Senators Javits, Stennis,
Eagleton, and Spong agreed to introduce a
comprehensive redraft of S. 731, The sub-
stantive provisions of this bill, S. 2956, are
essentially the same as those in S. 731, with
the addition of language borrowed from S.J.
Res. 59- providing that authority to use the
Armed Forces shall not be inferred from a
treaty or appropriation act. S. 2956 was
ordered favorably reported by the Senate
Committee on Foreign Relations the next
day, December 7.
6 S. 731, supra note 2, at 1, lines 3-5.
6 Id. at 1-2, lines 7-13.
1Id. at 2, paragraph B, ? 1.
6 Id, at 2, paragraph C, ? 1,
o Id, at 2-3, paragraph D, ? 1,
10 Id. at 1-2, paragraph A, ? 1.
11 Id. at 3, ? s.
12 Id. at 4, ? 3.
13 S.J. Res. 59, supra note 2, pp. 4-5, ? 3.
14 Id. at 2-3, ? 1.
15 Id. at 3, lines 9-12, ? 2 (emphasis added).
16 Id. at 6-7, ? 6.
17 Id. beginning at line 25, p. 6, and ending
on line 2, p. 7.
18 Id. at 7, lines 2-6.
to Id. at 7, lines 6-11.
20. Id. beginning at line 12, p. 3, and ending
on line 7, p. 4, ? 2.
21 Id. at 5, lines 13-19, ? 4.
W See note 7, supra.
23. S.J. Res. 95, supra note 2, at 2, paragraph
B,?2.
2 Id. at 5-6, ? 7.
25 See S.J. Res. 59, note 16 supra.
20 See S.J. Res. 59, note 14 supra.
27 See S.J. Res. 59, note 20 supra.
20 S.J. Res. 95, supra note 2, at p. 5, ? 6.
S.J. Res. 59, supra note 2, at p. 7, ? 7, Nor
would the fresh hostility be covered by S. 731.
See note 12 supra.
30 Supra note 2.
91 See text accompanying note 16 to note
29 supra.
32. S.J. Res. 18, supra note 2, at 2-3, para-
graph 1-4, Part I. And see note 10 supra.
21 01. S. 731, supra note 8.
a4 Of. S. 731, supra note 11.
35 S.J. Res. 18, supra note 2, at 2, line 10,
Part I. -
06 S. 731 refers only to "military hostilities"
and does not specify whether a purpose of
combat is necessary to constitute a hostility.
See text accompanying note 5 to note 12
supra. But of. remarks of Senator Javits when
he introduced his bill In which he refers to
"combat hostilities" and "combat actions."
117 Cong. Rec. (daily ed.) S1204-S1206 (Feb.
10, 1971).
37 Of. S. 731, supra note 12.
38 S.J. Res. 18, supra note 2, at 3-4, Part TI.
39 See text accompanying note 5 to note 39
supra, note 40 infra.
40 Id.
41 See A Brief on S. 731, to Make Rules Re-
specting Military Hostilities in the Absence of
a Declaration of War, 117 Cong. Rec. (daily
ed.) at 52527-S2531 (March 5, 1971), and
see Javits, supra note 36.
42 Brief, supra note 41, at S. 2523.
4s Id.
44 Id.
45 Id. See also Javits, supra note 36, at S.
1205-S 1206.
46 See exhibit 1, Javits, supra note 36, at
S 1206. But of. view of Professor John Norton
Moore that "reliance on the experience un-
der the Articles of Confederation seems a
frail reed for Interpreting a Constitution pro-
mulgated in large measure as a result of dis-
satisfaction with the experience under the
Articles. Hearings on War Powers Bill Be-
fore the Senate Comm. on Foreign Relations,
92d Cong., 1st Sess. (1971), testimony of
Professor Moore Inserted in the Cong. Rec.
by Senator Goldwater, 117 Cong. Rec. (daily
ed.) S6469 (May 10, 1971). Moore's position
applies with equal force to the Continental
Congress.
47 Brief, supra note 41, at S 2539. The tex-
tual arguments of the Javits brief are remi-
niscent of the battle Jefferson and Randolph
lost to Washington and Hamilton over the
power of the President to "declare" on "the
question of war or peace." When President
Washington boldly issued a proclamation of
neutrality on April 22, 1793, during the out-
break of war between France and Great Brit-
ain, it was a clear defeat for the position
argued by Jefferson that only Congress could
proclaim neutrality. To Jefferson, since Con-
gress alone had the power to declare war, it
alone had the power to declare we were not at
war. Washington's - rejection of Jefferson's
narrow reasoning is generally credited with
establishing early the principle of Presi-
dential primacy in the making of foreign
policy. See C. ROSSITER, ALEXANDER HAMILTON
AND TILE CONSTITUTION 84-85 (1964).
81 Hearings, supra note 46. See testimony of
Professor Richard B. Morris inserted in the
Cong. Rec. by Senator Javits, 117 Cong. Rec.
(daily ed.) S3359 (March 16, 1971). And see
testimony of Professor Henry Steele Com-
mager inserted in the Cong. Rec. by Senator
Javits, 117 Cong. Rec. (daily ed.) 53353-
53354. See generally Note, Congress, the Pres-
ident and the Power to Commit Forces to
Combat, 81 HART. L. REv. 1771 (1968).
49 Wright, The Power of the Executive to
Use Military Forces Abroad, 10 VA. J. INT'L, 54
(1969).
60 Wright took the same position in 1920.
See Wright, Validity of the Proposed Reser-
vations to the Peace Treaty, 20 COL. L. REv.
134-36 (1920)..
513 W. WILLOUGHBY, THE CONSTITUTIONAL
LAW OF THE UNITED STATES, 1567 (2d ed. 1929).
52 E. CORWIN, CONSTITUTION ANNOTATED
(1952).
53 Another well-known constitutional au-
thority states the President "possesses the
organizational authority to resort to the use
of force to protect American rights and in-
terests abroad and to fulfill the commitments
of the nation under international agree-
ments." B. SCHWARTZ, COMMENTARY ON THE
CONSTITUTION OF THE UNITED STATES, Part I,
Vol. II at 196 (1963).
51 Corwin, Who has the Power to Make
War?, N.Y. Times, July 31, 1949 at 14 (Maga-
zine).
65 Hearings, supra note 46. See testimony of
Moore at S6469-S6470; testimony of Secre-
tary of State William P. Rogers inserted in the
bong. Rec. by Senator Goldwater, 117 Cong.
Rec. (daily ed.) S7196-S7201 (May 18, 1971);
and testimony of the Honorable George W.
Ball Inserted in the Cong. Rec. by Senator
Goldwater, 117 Cong. Rec. (daily ed.) 512619-
512621 July 30, 1971).
Other recent statement recognizing full
plenary power in the President to conduct
military operations are: remarks by Solicitor
General Erwin N. Griswold Inserted in the
Cong. Rec. by Senator Goldwater, 117 Cong.
Rec. (daily ed.) 512967-512969 (Aug. 3,
1971); Eberhard P. Deutsch, The President
as Commander in Chief, 57 ABA J. 27-32 (Jan.
1971); Henry M. Pachter, Reflections of Uni-
lateral Intervention, prepared for Foreign
Military Commitments, FORENSIC Q., 135-38
(May 1969) ; and Congress, the President, and
the War Powers, Uearings Before the Sub-
comm. on National Securtiy Policy and Sci-
entific Developments of the House Commit-
tee on Foreign Affairs, 91st Cong. 2d Sess.
(Comm, Print 1970), testimony of Dr. W. T.
Mallison at 30-39, testimony of Professor
Abram Chayes at 135-38, and testimony of
William H. Rehnquist at 210-16, 232, and 235.
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CONGRESSIONAL RECORD - SENATE July 20, 1973
%Spong, Can Balance be. Restored in the
Constitutional War Powers of the President
and Congress?, 6 U. RICH L. REV., at 27 (1971).
s7 See Brief, supra note 41, at 82529-52530.
See Appendix "A," infra, at 88.
4 U.S. (4 Dallas) 36 (1800).
00 Id. at 39-45.
?1 Also cited as The Amelia, 5 U.S. (1Cr.) 1
(1801).
Id. at 28.
83Also cited as Little V. Barreme, 6 U.S. (2
Cr.) 170 (1804).
?4 Id. at 179. In fact, there never has been
any Supreme Court holding in time of war
which shackled the President's ability to use
the forces at his disposal to carry on that
hostility. See Ratner, The Coordinated War-
making Power-Legislative, Executive, and
Judicial Roles, 44 So. UAL. L. REV. at 486
(1971).
9? See Moore, supra note- 46, at S. 648$. And
see U.S. Coast., Art, I, ? 8. -
00 See Rogers, supra note 55 at n.45, S 7201.
" Spong, supra note 56, at 27. The Supreme
Court has consistently refused to tackle cases
directly challenging the legality of Presiden-
tial military decisions during an on-going
war. For example, the Court has turned away
every request for a decision on the validity
of the Vietnam conflict that has been made
of it. See Berk v. Laird, 443 P. 2d 1039 (1971) ;
cert. denied 40 U.S.L.W. 3186 (Oct. 11, 1971):
Massachusetts v. Laird, motion for leave to
file complaint denied, 400 U.S. 886 (1970);
Mora v. McNamara, cert. denied, 389 U.S.
934 (1967), Luftig v. McNaIIiara, cert. denied,
387 U.S. 945 (1967); and Mitchell v. United
States, cert. denied, 386 V.S. 972 (1967).
There are earlier cases which indicate the
Supreme Court will not consider issues aris-
ing out of any statute purporting to regulate
the President's deployment of troops. In
Mississippi v. Johnson the Court held it had
no power to restrain acts of either Congress
or the President regarding the use of troops.
71 U.S. 475 (1866). Some half century later
the Court held that the propriety of what
may be done in the exercise of the power to
conduct foreign relations "is not subject to
Judicial inquiry or decision." Oetjen v. Cen-
tral Leather Co., 246 U.S. 207, 802 (1918).
Then in 1950, the Court stated:
"Certainly it is not the function of the Ju-
diciary to entertain private litigation-even
by a citizen-which challenges the legality,
the wisdom, or the propriety of the Coln
mander-in-Chief in sending our armed forces
abroad or to any particular region . The
Issue tendered . involves a challenge to
conduct of diplomatic and foreign affairs,
for which the President is exclusively re-
sponsible."
Johnson v. Eisentrager, 3'39 U.S. 763, 789
(1950).
Two recent articles which conclude the
Court will not entertain the issue of the
President's war-making authority are (1)
Note, The Supreme Court as Arbitrator in the
Conflict Between Presidential and Congres-
sional War-Making Powers, 50 BOSTON U. L.
REv. 78 (1970), and (2) Undeclared War and
the Right of Servicemen to_ Refuse Service
Abroad, 10-16, Legislative Reference Service,
Library of Congress (Nov. 30, 1970). But of.
Tigar, Judicial Power, The 'Political Question
Doctrine,' and Foreign Relations, 17 U.C.L.A.
L. REV. 1135 (1.970).
In light of the probable application of the
"political question" doctrine to the war pow-
ers legislation, Senator Goldwater has
charged: "(lit may incite one of the gravest
Constitutional crises in American history."
Testimony of Senator Goldwater before Hear-
ings on War Powers Bills, supra note 46, in-
serted in 117 Cong. Rec. (daily ed.) 85637-
S5647 (April 26, 1971) at S5637.
es 67 U.S. (2 Black) 635 (1863).
00 See Brief, supra note 41, at 52529.
41, Prize cases, 67 U.S. (2 Black) 636, 671
(1863).
TI Id. at 668.
72 Professor Schwartz claims: "The lan-
guage of the high Court in the Prize Cases
14 broad enough to empower the President to
dp much more than merely parry a blow al-
ready struck against the nation. Properly
construed, in truth, it constitutes juristic
i*stification of the many instances in our
history (ranging from Jefferson's dispatch of
a 'naval squadron to the Barbary Coast to the
1482 blockage of Cuba) in which the Preel-
dent has ordered belligerent measures abroad
without a state of war having been declared
b' Congress." B. SCHWARTZ, THE REINS OF
POWER at 98 (1963). And see text acaompany-
ing note 114 to note 149 infra.
73 71 U.S. (4 Wall.) 2 (1866).
74 in, at 139.
75 See Brief, supra note 41, at S 2530.
7a 236 U.S. 459 (1915).
'7 Id, at 466-67.
T3 Id. at 460-70, 474,
t9 See text accompanying note 142 to note
149 infra.
80 Youngstown Sheet & Tube Co. v. Sawyer,
34$ U.S. 579 (1952).
811d, at 587.
az Id. at 645.
See Rogers, supra note 55, at S 7198.
New York Times Co. v. United States,
403 U.S. 713 (1971).
et Id. at 722.
ah See text accompanying note 49 to note 56
supra pp. 8-9. And see note 55 supra.
~t E. CORWIN, PRESIDENT: OFFICE AND Pow-
ERA 220 (3d rev. ed. 1948).
84 See text accompanying note 96 to note
100 infra.
80 See text accompanying note 101 to note
109 infra.
9~ See text accompanying note 110 to note
113i1infra.
91 U.S. CONST., Art. II, ? 1.
'Griswold, supra note 65, at S 12968.
03 See CORWIN, supra note 87, at 217-20.
KCited in CoRWIN, supra note 87, at 218.
WANNALS, 6th Cong., col. 613 (1800).
New York Times Co. v United States, 403
U.S 713 (1971) supra note 84, at 756. And
see 'separate dissent by Justice Blackmun at
761.
B7 Id. at 741.
9s Id. at 741-42, 756.
? t99 U.S. 304 (1936).
100!Id. at 319-20.
101Wright, supra note 50, at 134-35.
And see In re Neagle, 135 U.S. 1, 64 (1889),
cited by Wright in discussion.
102'IE. Coawsa, supra note 87, at 240-41.
1?3!Corwin has also written:
But the President may also make himself
the direct administrator of the international
rights and duties of the United States, or of
whafj are adjudged by him to be such, with-
out awaiting action either by the treaty-
mak$[Ig power or by Congress, or by the
courts. Id. at 239.
W.I Willoughby observed:
It Is also to be noted that the powers con-
stitutionally vested in thePresident with re-
gard',to the control of the foreign relations
of the United States makes It possible for
him to bring about a situation In which, as
a pructinal proposition, there is little option
left to Congress as to whether it will or will
not declare war or recognize a state of war
as existing. W. WILLouasSY, supra note 51,
at 15 8.
104 ee Q. WRIGHT, THE CONTROL OF A22ERI-
CAN 1.REIGN RELATIONS 306 (1922); Durand
v. Hollins, 8 F. Cass. 111 (4 Blatch 451, CCSI3
NY 1460).
100 Durand v. Hollins at 454,
100 See The Slaughter-House Cases, 83 U.S.
36, 79 (1872) .
197 U.S. CONST. amend. XIV.
1. J' CLARE., RIGHT TO PROTECT CI'TIZENS IN
FOREIGN COUNTRIES BY LANDING FORCES, 25
(3d re. ed. with supp. appendix up to 1933:
1934).!
194 See Q. WRIGHT, supra note 104. at 307;
Spong, supra note 56, at 24; Moore, The Law-
fulness of Military Assistance to the Republic
of Viet-Nam, The Vietnam War and Interna-
tional Law; AM. Soc'y es LNT'L L. 137 (1968) ;
id. at 583-603; Memorandum by U.S, Dept. of
State, The Legality of United Sta'cs Partici-
pation in the Defense of Viet-Nam, (March
4, 1966); B. SCHWARTZ, supra note 72, at 175.
119 U.S. CowsT. art. II, ? 2, cls. 1.
111 Q. WRIGHT, supra note 50, at 134; W.
WILLOUGHDY, note 51 supra, at 15f 7.
312 Ex parts Milligan, 71 U.S, (4 Wall) 2 at
139. See also holding by Court of Claims that
"In time of war, the Commander in Chief
has the same powers as other civilized gov-
ernments, and the exercise of them needed
no ratification to give them effective force."
The Court was speaking of the undeclared
war in the Philippines. Warner, Barnes and
Co. v. United States, 40 Ct. Cl. 1, 32 (1904).
113 Swaim v. United States, 28 Ct. Cl. 173,
221, aff'd 165 U.S, 553 (1897),
114 J. ROGERS, WORLD POLICING AND THE CON-
STITUTION 55 (1946).
m Id, at56.
119 E. CORWIN, supra note 54, at 14.
117 See it. DUPUT AND W. BAUMER, THE LIT-
TLE WARS OF Tae UNITED STATES Preface
(1968).
115 See, e.g., Comma er, supra note 48,
principally at S 3355, and Morris, sapra note
48, at S 3359.
119 See Goldwater, supra note 67, at S 5637.
120 See appendix A infra.
121 Other Itemized lists of U.S. military op-
erations abroad are., J. CLASS, to pro note
108, at 51-130 (78 incidents without; declara-
tions of war and not later disavowed or re-
pudiated); J. Roams, supra note 114, at 93--
123 (189 such incidents) ; State, i n fro ap-
pendix A at 36 (135 such incidents); and
Legislative Reference Service, Libras l of Con-
gress, Background Information on t;se Use of
United States Armed Forces in Foreign Coun-
tries (1970 Revision) at 50-57 (152 such in-
cidents).
132 See appendix A infra, note 3 at 110,
122 Reveley, Presidential. War-Maki: Ig; Con-
stitutional Prerogative or Usurpation?, 55
VA. L. REV. 1258 (1969).
124Malawer, The Vietnam War U;ader the
Constitution: Legal Issues Involved in the
United States Military Involvement in Viet-
iaam., 31 U. PITT. L, REV. 213 (1969).
12G See Commager, supra note 48, a; S 3356.
130 See appendix F infra at 116.
127 Id.
1 See appendix 13 infra, at 114.
199 See appendix E infra at 115.
130 See appendix G infra at 117.
"'See appendix C infra at 112.
733 See Commander, supra note 48, at $3355.
733 See appendix A infra at 92,
134 Id. at 98.
136 id. at 102.
lag Id at 103. See R DUPtrY AND W. 13AUMER,
supra note 117 at 168.
1a7 Appendix A infra at 104.
139 Id. generally.
149 Monaghan, Presidential War-Making, 50
BOSTON U.I. REv. 27 (1970).
14old.at29.
141 Id. at 31. See generally Griswold, supra
note 55.
142 United States v Midwest Oil Co., 236
U.S.459 (1915).
143 Id. at 473.
141 Presidents had issued orders withdraw-
ing public lands from private acquisition
over a period of 80 years. Id. at 469. I:i com-
parison, Presidents have been sending troops
abroad on their own initiative for mote than
a century and a half. See appendix A :infra
generally.
141 The statute reads in pertinent part:
"Prom and after the passage of this act
it shall not be lawful to employ any part
of the Army of the United States, as f. posse
comitatus, or- otherwise, for the purpose of
executing the laws, except in such cases and
under such circumstances as such eraploy-
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meant of said force may be expressly author-
ized by the Constitution or by act of Con-
gress . . ." (Emphasis added.) H. R. 4867,
approved June 18, 1878, ? 15 (45th Cong.)
20 Stat. 152.
It is true the law was aimed primarily at
the use of troops in suppressing domestic
violence or insurrection,. but on its face it
extends to all use of the Army, without any
geographical limitation, for the purpose of
executing the laws. As we have seen, the
President's right to execute the laws includes
a power to enforce international obligations
as well as domestic laws. See discussion ac-
companying notes 101 to 104, supra.
Furthermore, it was evident to Congress
the law it was debating would be applicable
to circumstances much broader than the
posse comitatus situation described in the
act. Members of both Houses indicated their
awareness of the provision's reach to situa-
tions involving the employment of troops
against foreign dangers. See remarks of Sena-
tor Matthews where he speaks of "foreign
wars" 7 Cong. Rec. 4297 (1878) and remarks
of Senator Hoar, id. at 4303. One proposed
amendment, introduced and defeated during
floor debate in the House of Representatives,
would have exempted from the law the use of
forces "on the Mexican border or in the ex-
ecution of the neutrality laws elsewhere on
the national boundary lines." Id. at 3849.
In these circumstances and in view of the
broad language of the statute, the author be-
lieves it can reasonably be interpreted as
purporting to limit the. use of the Army in
the international theater as well as the do-
mestic one. Thereby the doctrine of consti-
tutional interpretation announced in Mid-
west Oil would squarely provide additional
support buttressing the legality of the Presi=
dent's use of troops abroad. Section 15 of
H. R. 4867 was repealed in 1956 and restated
in broader form as the new section 1385 of
title 18, U.S.C. (70 A Stat. 626).
14? 54 Stat. 885.
147 Id. ? 3 (e) , at 886. Congressional debate
on the 1940 Selective Service law shows that
when Congress referred to the "Western
Hemisphere" it definitely meant only that
area of North, Central, and South America
which "we have long engaged to protect un-
der the Monroe Doctrine."
The provision is also an unlikely precedent
for War Powers legislation because its author,
Senator Lodge, conceded on the Senate Floor,
"This is a pious hope." It was openly recog-
nized by him and others that Congress could
not constitutionally restrict the President's
deployment of forces. See 86 Cong. Rec. 10092,
10103, 10105, 10116, 10129, 10391, 10742,
10794-10798, and especially 10895-10914, 76th
Cong. 2d Seas. (1940).
118 See appendix A infra at 105.
14? Corwin also argues the U.S. agreement
to turn over 50 reconditioned destroyers to
Britain in 1940 "was directly violative of at
least two statutes.. " E. CoRwIN, supra
note 87 at 288-89. And see appendix A infra
at -, and Senate Comm. on Foreign Rela-
tions, S. Rep. No. 797, 91st Cong., 1st Sess.
(1969) 14-15.
IN See testimony of McGeorge Bundy, Con-
gress, the President, and the War Powers,
supra note 65, at 3..
161 See testimony of Alexander Bickel, Con-
gress, the President, and the War Powers,
supra note 55, at 45.
162 See testimony of Attorney William D.
Rogers, Congress, the President, and the War
Powers, supra note 55, at 58.
162 See testimony of Professor Abram
Chayes, who supports legislative efforts to
end the Indochina War, but nevertheless
vigorously opposes as unconstitutional "bills
that seek to lay out a detailed blueprint in
advance to govern the relations between the
President and the Congress in the exercise of
the national war power in all possible con-
tingencies." Congress, the President, and the
War Powers, supra note 55, at 135.
154 Rogers, supra note 55, at S 7199.
Ica Id.
156 See testimony of Dr. James MacGregor
Burns, Congress, the President, and the War
Powers, supra note 55, at 81-82.
1117 Id. Consider the observation of former
Ambassador Charles W. Thayer, that:
"It was due largely to the erratic, occa-
sionally irresponsible actions of the ancient
Greek assemblies that the city-states' diplom-
acy was ineffective and defensive collab-
oration against the Eastern aggressors im-
possible. Despite growing recognition by Con-
gress and the public of the purpose, methods
and needs of an effective diplomacy, so long
as the consistent pursuit of long-range inter-
ests and aspirations is periodically sacrificed
to passing whims inspired by fleeting emo-
tions in Washington, the danger persists of .a
twentieth century repetition of the Greek
debacle. W. THAYER, DIPLOMAT 80 (1959)."
158 See Ball, supra note 55, at S 126211.
159 Id.
16? Goldwater, supra note 67, at S 5637.
1?1 Id.
102 See generally Brief, supra note 41.
103 See generally text accompanying note 10
to note 36 supra. And see S. 731, ? 4; S.J. Res.
59, ? 4; and S.J. Res. 95, ? 4, alt supra note 2.
109 See appendix A infra at 107.
165 See R. KENNEDY, THIRTEEN DAYS (1969)
at 35, 36, 68, 97, and 107.
166 Goldawter, supra note 67, at S 5638.
381 KENNEDY, supra note 165, at 53.
its Id. at 53-54.
169 Goldwater, supra note 67, at S 6638.
170 See generally testimony of Commager
and Morris, supra note 48; testimony of Pro-
fessor Alexander Bickel, inserted in the Cong.
Rec. by Senator Javits, 117 Cong. Rec. (daily
ed.) S 12387 (July 28, 1971). See generally,
Brief, supra note 41.
171 See Brief, supra note 41, at S 2528. In
case the President should veto any such leg-
islation shoving him into an expanded war,
he would be put in the unenviable position
of facing a Congress which (1) would likely
claim he had thereby deprived himself of
any authority to act at all in the hostility
concerned and (2) could vote to override his
veto.
172 Brant, Nixon vs. Constitution in War
Powers Debate, The Washington Post, July 4,
1971, at B-3.
Compare the position of Ambassador
Thayer, who views the Foreign Service dan-
gerously handicapped under present Con-
gressional practices, let alone under the com-
plications added by War Powers legislation.
For example Thayer recites:
"In his Memoirs, President Truman in-
dicates how the Greek Civil War was very
nearly lost to the Communists because of the
time needed to get the necessary Congres-
sional action.
"The first warning that the British, then
on the verge of bankruptcy, would have to
withdraw from Greece not later than April
1, 1946, was telephoned to the President
by the State Department on Friday, February
21. Four days later Congressional leaders
were notified that some sort of action would
be essential. But it was not until seventy-
five days later, that the House on May 9,
finally approved the measure. Meantime the
Communist guerrillas had almost succeeded
in overthrowing the Greek government. C. W.
THAYER, supra note 157, at 78-79."
173 S. 731, supra note 2, at ? 1A(4).
174 Secretary of State Rogers contends "such
a restriction could seriously limit the ability
of the President to make a demonstration of
force . to deploy elements of the Sixth
Fleet in the Mediterranean in connection
with the Middle East situation," which is
exactly what President Johnson did in 1967.
See Rogers, supra note 55, at S 7199, and see
discussion, accompanying notes 177 to 179,
infra. Moore, supra note 46, at 56470; S.
Comm. on Foreign Relations, note 149, at 26.
S14173
Representative Zablocki, Chairman of the
House Subcommittee hearings on war powers
in 1970, told Senator Javits during the latter's
appearance at the hearings: "Let us say that
as a result of renewed hostilities in the Middle
East the President finds it necessary to in-
tervene on the side of Israel. Your bill does
not seem to fit that contingency since the
United States has no formal treaty or pact
with Israel."
Senator Javits replied: "I would hope that
long before any such terribly untoward sit-
uation would develop in the Middle East ...
this would have been adopted as a NATO
responsibility and then it would come under
the fourth item of my own bill." See Con-
gress, the President, and the War Powers,
supra note 55, at 400-401.
Thus, from Senator Javits' own admission
the President could not act independently in
defense of the people of Israel under his
bill, but would have to await either a deci-
sion by NATO to take collective action in
support of Israel (no one else has suggested
Israel is a NATO obligation) or legislative
action by Congress.
- No authority considers the Middle East
Resolution to be pertinent, apparently be-
cause it (1) does not grant any authority to
employ force, but simply states a policy that
"the United States is prepared to use armed
forces," (2) does not apply unless the aggres-
sor country is "controlled by international
communism," and (3) provides the employ-
ment of force "shall be consonant with the
treaty obligations of the United States" and
we do not have any defense treaty with Israel.
Pub. Law 85-7, a joint resolution to promote
peace and stability in the Middle East, ap-
proved March 9, 1957 (71 Stat. 5).
175 Goldwater, supra note 67, at S 5637.
176 Remarks of Senator Goldwater, 117
Cong. Rec. (daily ed.) S 5636-S 5637 (April
26, 1971).
177 See appendix A infra at 109.
176 The Evening Star (Washington, D.C.),
May 12, 1971, D-4; Johnson, The Vantage
Point, excerpt 8, The Washington Post, Oct.
24, 1971, Al, A14.
179 Id.
18? See Rogers, supra note 55, at S 7199.
181 U. S. Dept. of Navy, Summary of Wars/
Near Wars Since 1946, 116 Cong. Rec. 815712-
S15713 (May 15, 1970).
182 See S. 731, supra note 173; S.J. Res. 59,
supra note 2, ? 2; S.J. Res. 95, supra note 2,
? 8, and S. 1880, supra note 2, ? 3, which
prohibit the President from inferring a right
to act under any law unless that law "spe-
cifically authorizes the use of such forces in
armed conflict." see also S.J. Res. 18, which
prohibits deployments to fullfill a treaty
obligation qualified by constitutional limita-
tions or conditions. Since nearly all United
States defense treaties "limit" or "condition"
our responsibility to act to steps which are
"in accordance with" our own "constitutional
processes," S.J. Res. 18 would seem designed
to preclude Presidential initiatives under all
such agreements. See S. Rep. No. 794, 90th
Cong., 1st Seas. 15. (1967).
182 See appendix A infra at 108.
184 Unpublished letter of Dean Rusk in per-
sonal files of Senator Goldwater.
18V See testimony of Professor Moore where
he warns S. 731 would prohibit "humani-
tarian intervention similar to the joint
United States-Belgian operation in the Congo
if the intervention were not for the protec-
tion of United States nationals." Moore, supra
note 46, at 56470.
166 Commager, supra note 48, at S 3357.
167 See text accompanying notes 185-86
Supra.
168 See appendix A infra at 91, 92.
180 See KENNEDY, supra note 165, at 35-36.
190 See text accompany note 104 to note 108
supra.
191 See text accompany note 109 supra.
192 Even Professor Bickel, who otherwise
endorsed War Powers legislation, cautioned:
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For F-is(~/1~:75%OQoo7oo09001o-9~uty 20, 197
"I don't think the President can be deprived
of his power to respond to an imminent
threat of attack (as well as to the attack
itself); or of his power to respond to attacks
and threats against our troops wherever they
may be, as well as against our territory; or
of the power to continue to see to the safety
of our troops once they are engaged, even if
a statutory 30-day period has expired."
Bickel, supra note 170, at 812390.
Almost all commentators grant that the
Founding Fathers purposefully left with the
President at least "the power to repel sudden
attacks," See, e.g., Note, The War-Making
Powers: The Intentions of the Framers in
the Light of Parliamentary History, 50Bos-
TON U. L. REV. 1 (1970).
193 Senator Golwater hasput the same view
in these words: "I am convinced there is no
question that the President can take mili-
tarry action at any time he feels danger for
the country or for its freedoms or, stretching
a point, for its position In the world." Gold-
water, supra note 67, at 55639,_ See generally
text accompanying note 86 to note 155 supra.
And see position of Bernard Schwartz that:
"The unwritten constitutional law of presi-
denial power (if not the text of the basic
document) has all but vested in the highest
officer the virtual authority to make war
whenever deemed necessary to protect the
interests of the United States" B. bohwartz,
supra note 72 at 177.
r94 See, e.g., text accompanying note 41 to
note 50 supra; Javits, supra note 36; Morris,
supra note 48; Commager, supra note 48; and
Bickel, supra note 170.
1F6 See generally, Bickel, supra note 170 at
512388; Commager, suprd note 48, at 83353:
testimony of McGeorge Bundy, inserted in
the Cong. Rec. by Senator Javits, 117 Cong.
Rec. (daily ed.) S5629' (April 2$, 1971).
1" Javits, supra note 36, at 51204.
1117 See remarks of Senator Cooper, 117 Cong.
Rec. 523722-,B23744 (July 10, 1970), with ac-
companying documents.
108 See remarks of Senator Goldwater, 117
Cong. Rec. (daily ed.) 812446 (July 29, 1971).
199 Berk v. Laird, 443 F.2d 1039 (1971), cert.
denied 40 U.S.L.W. 3166 (1971).
909 During Floor debate on the military
draft extension Law, Senator Stennis, Chair-
man of the Senate Committee on Armed
Services, asserted this is the first time Con-
gress has set numrical strength levels On the
regular forces, as distinguished from the Re-
serves, and including volunteers, officers,
and inductees. See remarks of Senator Sten-
nis, 117 Cong. Rec. (daily ed.) at 59589
(June 21, 1971).
See also Senate Report 92-93 on H.R. 6531,
92d Cong., 1st Sess. at 35 (1971); Pub. L.
92-129, Act of Sept. 28. 1971, J301.
See generally the report by the Congres-
sional Reference Service, Library of Congress,
Regulating the Size of the Armed Force Un-
der Selective Service Law, 117 Cong. Rec.
(daily ed.) 59590-59591 (June 21, 1971).
901 For example; following a trip to Saigon
in May, 1964, Secretary of Defense McNamara
brought back recommendations for increases
in American assistance, specifically Includ-
ing an increase in the size of the American
advisory personnel and a larger air force for
South Vietnam. President Johnson asked for,
and obtained, from Congress an additional
$125 million in military aid funds earmarked
for these purposes. Pub. L. 88-633, 78 Stat.
1009, 1010; Pub. L. 88-634, 78 Stat. 1015
(1964).
In 1965, less than nine months after Con-
gress passed the Gulf of Tonkin Resolution,
President Johnson sent to Congress an ap-
propriation request specifically and solely
related to the war in Vietnam. In it he asked
for $700 million to support an increase in
the number of troops in South Vietnam. The
House of Representatives approved the
money by a vote of 408 to 7 and the Senate
approved it by a vote of 88 to 3. 111 Cong.
Rec. 9232-9284; Pub. L. 89-18, 79 Stat. 109
(1965).
In each of these instances Congress was
confronted with a policy decision to expand
the defense commitment in Vietnam in the
future. These were not requests for funds, to
cover past expenses, but to support future
policy. Here is the kind of clear-cut decision
on a specific Issue in which the author
believes Congress can play a proper and im-
portant, in shaping the advance course
of the nation's activities or In shifting pres-
ent trends, if it wishes.
= William H. Rehnquist contends that "at
the very heart of the Presidential power as
Commander-in-Chief Is his sole authority to
determine the tactics and strategy which
shall govern the way in which hostilities once
commeged are conducted" SENATE Comm.
ON FORI$IGN RELATIONS, DOCUMENTS RELATING
TO THE WAR POWER OF CONGRESS, THE PRESI-
DENT'S AUTHORrrr AS COMMANDER-IN-CHIEF
AND THE WAR IN INDOCHINA, 91st Cong., 2nd
Bess. 177 (July 1970).
Thusla distinction should be made between
the decision of Congress to cut or reject an
appropriation of funds for the conduct of
hostilities and the attempt by Congress to
dictate -rules governing the deployment of
forces. For example, the Senate Committee
on Foreign Relations was acting within the
authority of Congress in October when it
voted to reduce the funds sought by the
Nixon Administration for military and eco-
nomic assistance in Cambodia from $341
million to $250 million. SENATE COMM. ON
FOREIGN RELATIONS, Rep. No. 02-404 at 46-47,
92d Cong., 1st Bess. (1971).
On the other hand, the author believes
Congress would have improperly invaded the
President's sphere as the primary source of
foreign' policy and Commander in Chief had
it passed the so-called "End the War Amend-
ment,"which called for a total withdrawal
of U.S. troops from Vietnam by December 31,
1971. This would be an effort by Congress to
"direct the conduct of campaigns," some-
thing the Supreme Court said, in Es parte
Milligan, that it cannot do. For text of
amendl#ient, see 117 Cong. Rec. (daily ed.)
at S8760 (June 10, 1971). Cf. Mansfield
Amendment no. 427, which simply declares a
policy of withdrawal from Vietnam and "re-
quests" the President to implement it. See
text at 117 Cong. Rec. (daily ed.) S15111
(Sept. 27, 1971).
In some current instances, Congress has
passed quasi-restrictions on the deployment
of forces with the acquiescence of the Presi-
dent. Section 843 of The Department of De-
fense Appropriations Act, 1971, is a case in
point. P.L. 91-668. This provision prohibits
"the introduction of American ground com-
bat troops into Laos or Thailand," but it was
not opposed by the Administration. Nor had
the Admirinistration earlier opposed a restric-
tion against the introduction of U.S. ground
combat, troops or advisors into Cambodia
when this provision was placed in the Sup-
plement Foreign Assistance Authorization
Act for 1971. See Pub. L. 91-652; and Con-
gressiorial Research Service, Library of Con-
gress, Legislation Enacted by the 91st Con-
gress to Limit United States Military Involve-
ment in. Southeast Asia, March 30, 1971.
So long as the President agrees to comply
with the limitation (each of these two restate
a previously announced intention of Presi-
dent Nikon), the language will have the full
force and effect of law. However, it is the
author's view that the President could legally
defy these and similar restrictions on the use
of American forces whenever he determines
it is vitally necessary to defend American
security. -
Mr. GOLDWATER. Mr. President, I
ask further unanimous consent that
there be printed a chronological list of
199 U.8. military hostilities abroad with-
out a declaration of war, from 17418 to
1972.
There being no objection, the list was
ordered to be printed in the RECORD, as
follows:
WAR WITHOUT DECLARATION
APPENDIX
A chronological list of 199 U.S. mi'itary
hostilities 1 abroad without a declaration
of war, 1798-1972
1798-1800: Naval-War With France
When John Adams became President in
1797, he faced the serious problem of strrined
relations between France and the United
States, in which France had made it a prac-
tice to seize American merchant ships and to
manhandled their crews. Adams first; at-
tempted to negotiate a settlement, but, when
the French demanded exorbitant bribes; and
loans, his envoys rejected the proposafi; and
departed.
Adams, thereupon, asked Congress for the
power to arm merchant ships and take ether
defensive measures. Congress responded by
creating a Navy Department, voting appro-
priations for new warships, and authorizing
the enlistment of a "Provisional Army" for
the duration of the emergency. In July 1798,
the French treaties and consular conventions
were abrogated.
The result was a "quasi-war," during which
neither country declared war. The American
Navy attacked only French warships and
privateers and fought primarily for the pro-
tection of commerce. Some ninety French
ships were captured during this naval war. On
September 30, 1800 a convention was agreed
to and peace was achieved. State, 2.
1800: West Indies
On April 1, U.S. Marines participated I,a the
action between the U.S. schooner Ente, prise
and a Spanish man-or-war brig in the West
Indies. USMC, I, 40.
1801-1805: War With Tripoli
During the early years of the Republic, the
United States, following the practice of sev-
eral European nations, paid tribute to North
African pirates. Shortly after Jeffersolt 'be-
came president, the Pasha Of Tripoli, dis-
satisfied with the apportionment of tribute,
declared war on the United States (May
1801). Jefferson thereupon sent warships to
the Mediterranean. After naval actions and
landings under Commodore Preble, ail in-
conclusive treaty of peace with Tripoli was
signed in 1805. Congress passed variotti en-
abling acts during the conflict but never de-
clared war. State, 3.
1806: Mexico (Spanish territory)
Captain Z. M. Pike, with a platoon of troops
and on the orders of General James Wilkin-
son, invaded Spanish territory at the head-
waters of the Rio Grande, apparently on a
secret mission. State, 16.
1806-1810: Gulf of Mexico
Americans gunboats operated from New
Orleans against Spanish and French priva-
teers. State, 16.
*This edition includes supplementarz in-
formation added by the author since the
article was originally published. -
1 The list includes only actual battles,
landings, or evacuations in foreign territory
or waters. Deployments to mafntaid an Amer-
ican presence, or alerts bringing an advs need
state of readiness are not included, e:ccept
for seven or eight incidents when the risk of
war was unusually grave. No military opera-
tions known to have been subsequently dis-
avowed or repudiated have been included.
The list was prepared with.the direction of
U.S. Senator Barry Goldwater and Is pub-
lished with his consent.
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1810: West Florida (Spanish territory) 1823: Cuba (Spanish Territory) 1841: Samoan Islands
Governor Claiborne of Louisiana, on orders Between April and October naval forces On February 25, an American force of 70
from the President, occupied with troops made a number of landings in pursuit of marines and seamen from the U.S.S. Peacock
disputed territory east of the Mississippi pirates, apparently incident to Congressional landed to avenge the murder of a seaman.
as far as the Pearl River. No armed clash oc- authorization rState, izati17 which became operative in They burned three native villages. USMS, I,
curred. State, 16.
1813. West Florida (Spanish territory) 1824: Cuba (Spanish Territory) 1841: Drummond Island (Kingsmill Group,
On authority granted Congress, Gen- In October, the U.S.S. Porpoise landed Pacific Ocean)
eral Wilkinson seized d Mobile Bay with 600 sailors to pursue pirates during a cruise au- On April 6, marines from the U.S.S. Pea-
soldiers, a small Spanish garrison gave way thorized by Congress. State, 17. cock landed and burned two towns to avenge
without fighting. State, 16. 1825: Cuba (Spanish Territory) the murder of a seaman by natives. State, 18.
1843: China
1813-1814: Marquesas Islands, South Pacific In March, British and American forces
(claimed by Spain) landed on two offshore Cuban islands' to In June and, July, a clash between Ameri-
U.S. Marines built a fort on one of the capture pirates who were based there. The cans and Chinese at the Canton trading post
islands to protect three captured prize ships. action appears to be incident to Congres- led to the landing .of 60 sailors and marines
clonal authority. State, 17. from the St. Louis. Paullin, 1095-1096.
State, 16. 1843: West Africa
1814-1825: Caribbean Area 1827: Greece There were repeated engagements between Apparently acting pursuant to legislation, In November and December, four U. S. ves-
American ships and pirates both ashore and in October and November, United States sels from Commodore Perry's squadron dem-
off shore about Cuba, Puerto Rico, Santo forces frtm the U.S.S. Warren and the U.S. onstrated and landed various parties (one of
Domingo, and Yucatan. In 1882, Commodore schooner Porpoise engaged in seven actions 200 marines and sailors) to discourage piracy
James Biddle employed a squadron of two against pirate vessels off Greece and made and the slave trade along the Ivory Coast and
frigates, four sloops of war, two brigs, four landings on three Greek Islands. State, 17. to punish attacks made by the natives on
American seamen and shipping. In the proc-
Indies. and two gunboats in the West 1828: West Indies ess, they burned villages and kllled a local
to have been pur-
Indies. The United States sunk or captured In December, incident to legislation, Ma- ess t The urneds appear
65 vessels. Marine detachments participated rives participated in the capture of the suant to the Treaty of August 9, 1842, with
in at least 14 of these actions. State, 16. Argentinean privateer Federal by the U.S. Great Britain relative to the suppression of
sloop Eric at St. Bartholomew Island, W. I.
1815: Second Barbary War (Algiers) the slave trade. State, 18.
In 1812 an Algerian naval squadron op- USMC, i, 67. 1844: Mexico
e rated shipping in the 1830: Haiti President Tyler deployed our forces to pro-
merchantman In n one one attack ck an American On June 5, marines participated in the test Texas against Mexico, anticipating Sen-
prisoned. was captured and its crew im- capture of the slave brig Fenix by the U.S. ate approval a a treaty of annexation, which
prisoned. In March, 1815, Congress passed schooner Grampus off Cape Haitien, Haiti. of re term. Corwin, which 245.
an act that authorized the use of armed USMC, I, 67. was rejected later
18 in his China
vessels "as may be judged requisite by the 1831-18321. Falkland Islands (Argentine) On June 18, Marines from the U.S. sloop
President" to provide effective protection to American forces under-Captain Duncan of
American commerce in the Atlantic and the the U.S. Lexington landed to investigate the St. Louis went ashore at Canton, 'China, to
Mediterranean. A naval squadron of 10 ves- capture of three American sailing vessels. protect American lives. USMC, I, 72.
sels under Commodore Stephen Decatur at- The Americans succeeded in releasing the 1845: African coast
tacked Algiers, compelling the Dey to nego- vessels and their crews and dispersed the On November 30, Marines joined in the
tiate a treaty. Decatur also demonstrated Argentine colonists. State, 17. capture of the slave bark Pons by the U.S.
at Tunis and Tripoli. All three states were 1832: Sumatra sloop Yorktown off Kahenda, Africa. The ac-
forced and to the pay for threats an losses d to tribute American shin terminaatedd. , A force of 250 men from the U.S .S U.S.S. Potomac tion was consistent with the Treaty of 1842.
and and USMC, I, 72.
State, 3. landed to storm a fort and punish natives 1846: Mexico
1816-1818: Spanish Florida of a town for an attack on American ship-
ping and the murder of crew members. State, President Polk ordered General Scott to
During the "First Seminole War," U.S. 18 occupy disputed territory months preceding
forces invaded Spanish Florida on two 1833: Argentina a declaration of war. Our troops engaged in
occasions. In the first action, they destroyed Between October 31 and November 15, at battle when Mexican forces entered the area
a Spanish fort harboring raiders who had between the Nueces and Rio Grande Rivers.
made forays into United States territory. In the request of American residents of Buenos The fighting occurred three days before Con-
Aires, pioerce of 43 marines and sailors landed
the second, Generals Jackson and Gaines from the U.S.S. Lexington to protect Amer- grass acted. U.S. 378.
-attacked hostile Seminole Indians. In the and scan lives and property during an insurrec- 1849: Smyrna (Now Izmir, Turkey)
occupie Spanish States (belie attacked r and tion. State, 18. In July, the U.S.S. St. Louis gained the re-
President serve Monroe as 1835: Samoan Islands lease of an American seized by Austrian offi-
havens by the hostiles. believed
aven by the
assumed responsibility for these acts. Moore, On October 11, eighty Marines and sailors slats. State, 18.
1850: African coast
403-406. burned the principal village on the island
1817: Amelia Island (Spanish Territory) to avenge harsh treatment meted out to On June 6, Marines joined in capturing a
American seamen. Paullin, 729. slave ship by the U.S. brig Perry off Luanda,
Under orders from President Monroe, U.S. 1835-1836: Peru Africa. The action was consistent with the
forces landed and expelled a group of smug- Treaty of 1842. USMC, I, 77.
Biers and pirates. Moore, 406-408. Marines from the U.S.S. Brandywine landed 1851: Turkey
1818: Oregon at various times at Callao and Lima to pro-
tect American lives and property during a After a massacre of foreigners (including
The U.S.S. Ontario landed at the Columbia revolt, and to protect the American Consu- Americans) at Jaffa, the U.S. Mediterranean
River and in August took possession. Russia late at Lima. State, 18. Squadron was ordered to demonstrate along
and Spain asserted claims to the area. Rogers, 1837: Mexico the Turkish coast. Apparently, no shots were
96 fired, but the display amounted to compul-
1820: West Africa On April 16, marines joined in the capture vier. State, 19.
Marines participated in the capture of seven of a Mexican brig-of-war by the U.S.S. Nat- 1851: Johanna Island (East of Africa)
the U.S: corvette Cyane chez off Bravos de Santiago for illegal seizure
slave schooners by of two American merchantmen. USMC, I, 70. The U.S.S. Dale delivered an ultimatum,
off Cape Mount and the Gallinos River on the 1839: Sumatra bombarded the island, and landed a force to
west coast of Africa during the period from punish the local chieftain for the unlawful
April 5 through 12. USMC, I, 64. In January, imprisonment of the captain of an American
1820-1822: West Coast of South America American forces from ,the U. S. sloop John whaler. State, 19.
Adams and the U. S. frigate Columbia landed 1852-1853: Argentina
Marines were aboard three of the U.S. at Muckie, Sumatra, to protect American
ships stationed off the west coast of South lives and property and to punish natives of Several landings of marines took place in
America from 1820 until May 1822, to protect two towns for attacking American ships. order to protect American residents of Buenos
American commerce during the revolt against USMC, I, 70. Aires during a revolt. State, 19.
Spain, USMC, I, 65. 1840: Fiji Islands 1853: Nicaragua
1822: Cuba (Spanish Territory) American forces totaling 70 officers and American forces under Captain Hollins of
U.S. naval forces landed on the north- men, landed an July 12 and 26 to punish the U.S.S. Cyane landed at Greytown about
western coast of Cuba and burned a pirate natives of two towns for attacking American March 10 to protect American lives and in-
station. State, 17. exploring and surveying parties. State, 18. terests during political disturbances. His ac-
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 S14176 Approved Forte #J A(L6 kii9P75 3 ,~000700090010~Uiy
tivities were approved by the Secretary of
the Navy. Moore, 414-415.
1853: China
On September 11, a small Marine force
from the U.S. steamer Mississippi boarded a
Siamese vessel in the Canton River and put
down a mutiny. USMC, I, 78.
1853: West Coast of Africa
In accordance with the Treaty of 1842, on
December 3, Marines joined in the capture of
the slave schooner Gambrill by the U.S. frig-
ate Constitution off the Congo River on the
west coast of Africa. USMC, I, 78.
1853: Smyrna
Martin Kostta, who was an American de-
clarant, was released by his Austrian captors,
upon an ultimatum given by Naval Captain
Ingraham who trained his gums upon the
Austrian vessel on which Koszta was held.
Secretary of State Marcy defended the rescue
against protest by the Austrian Government.
Berdahi, 50.
1853-1854: Japan
Commodore Matthew C. Perry led an ex-
pedition consisting of four men-of-war to
Japan to negotiate a commercial treaty. Four
hundred armed men accompanied Perry on
his initial landing at Edo Bay in July, 1853,
where he stayed for ten days after refusing
to leave when ordered. He then sailed south,
landing a force at the Bonin Islands, where
he took possession, and at the Ryukyus,
where he established a coaling station. In
March, 1854, he returned to Edo Bay with
ten ships and 2,000 men, landed with an es-
cort of 500 men, and after six weeks signed
a treaty with Japanese authorities at Kana-
gawa. The whole campaign was on executive
authority. State, 19.
1854: West Coast of Africa
Pursuant to the Treaty of 1842, on March
10, Marines joined in the capture of a slave
brig by the U.S. brig Perry off the west coast
of Africa. USMC, I, 78.
1854: China
American and British forces consisting of
150 English sailors, 60 U.S. sailors, and 30
merchant sailors landed at Shanghai .on
April 4 and stayed until June 7 to protect
their nationals during a battle between
Chinese imperial and revolutionary troops.
State, 19.
1854: Greytown, Nicaragua
In July, the commander of an American
naval vessel demanded reparation after the
U.S. minister to Central America was in-
jured during a riot. When this was not forth-
coming, the vessel bombarded the town.
President Pierce defended the action of the
American commander in his annual message
to Congress. Moore, 415-416.
1854: Okinawa
On July 6, aforce of 20 Marines from the
U.S. steamer Powhatan went ashore on Oki-
nawa and seized a religious shrine in punish-
ment of persons who murdered an American.
On November 17, Marines and seamen from
the U.S. sloop Vincennes went ashore again
at Okinawa to enforce treaty provisions.
USMC, 1, 78.
1855: China
There were two brief actions by U.S. war-
ships, the first a landing in May at Shanghai
to protect American interests there, the sec-
ond an attack in August at gong Kong
against pirates. State, 20.
1855: Fiji Islands
In September and October, marines from
the sloop-of-war John Adams landed four
times to seek reparations for depredations
against Americans and to force natives to
honor a treaty. The landing parties fought
skirmishes and burned some villages. USMC,
I, 79.
1855: Uruguay
In August and November, U.S. naval forces
put sail rs ahsore to protect American in-
terests ir4 Montevideo. State, 20.
1856: Panama, Republic of New Granada
U.S. forces landed and stayed two days to
protect American Interests, including the
Isthmian railroad, during an insurrection.
(By the treaty of 1846 with New Granada, the
United States had acquired the right to pro-
tect the Isthmus and to keep it open, in
return for guaranteeing Its neutrality.)
State, 20.
1856: China
In October and November, the U.S. war-
ships Portsmouth and Levant landed 280
officers and men to protect American inter-
ests at Canton during hostilities between the
British and the Chinese and in response to an
unprovoked assault upon an unarmed boat
displaying the U.S. flag. The Americans took
and destroyed four Chinese forts. The attack
by U.S. war vessels without authority of
Congress; was approved by President Bu-
chanan. Berdahl, 51.
1858: Uruguay
Forces from two U.S. warships landed in
January o protect American lives and prop-
erty durig a revolt in Montevideo. The ac-
tion was oaken In conjunction with the forces
of other powers at the request of the local
government. State, 20.
1858: African coast
On September 8, Marines joined in the cap-
ture of a ketch laden with slave food by the
V.S. sloop Marion off the southeast coast of
Africa. The action was consistent with the
Treaty of X1842. USMC, I, 80. -
1858: Cuban waters
After repeated acts of British cruisers in
boarding and searching our merchant ves-
sels in the Gulf of Mexico and adjacent seas,
President, Buchanan addressed remon-
strances to the British Government, against
these seakches and, without authority from
Congress,; ordered a naval force to the Cuban
waters with directions "to protect all vessels
of the United States on the high seas from
search or detention by the vessels of war of
any othet nation." A conflict with Great
Britain was avoided only by its abandonment
of her clam to the right of visit and search
In time of peace. Berdahl, 51; Richardson,
3038.
1858: Fiji Islands
On October 6, about 60 Marines and sail-
ors from the U.S.S. Vandalia landed to pun-
ish natives for the murder of two American.
citizens and engaged in a fierce conflict with
800 native, warriors. State, 21.
1858-1859: Turkey
American citizens were massacred in 1858
at Jaffa a d mistreated elsewhere. In the face
of Turkish indifference, the Secretary of
State asked the U.S. Navy to make a display
of force along the Levant. State, 21.
1858-1859: Paraguay
From October 1858, to February, 1859, an
American ',expedition went to Paraguay to
demand redress for an attack on a naval ves-
vel in theParana River during 1855. Apolo-
gies were forthcoming after a display of force,
which amounted to compulsion. Congress au-
thorized the action. State, 21.
1859: African coast
On April 21 and 27, Marines joined in the
capture of !a slave ship near the Congo River,
Africa. The action was consistent with the
Treaty of 1P42. USMC, I, 81.
1859: Mexico
Two hundred U. S. soldiers crossed the Rio
Grande in pursuit of the Mexican bandit
Cortina. State, 21.
20, 1973
1859: China
On July 31, forces from the U.S.S. Missis-
sippi landed at Woosung and Shanghai, where
they remained until August 2, to protect
American interests and restore order. The
American consul had called on the ship for
assistance. State, 21.
1860: Kissembo, West Africa
On March 1, 40 Marines and seamen from
the sloop-of-war Marion landed twice to pre-
vent the destruction of American propssty
during a period of local unrest. State, 2:i.
1860: Colombia (State of. Panama)
On September 27, the Marine guard from
the sloop U.S.S. St. Mary's landed to protect
American interests during a revolt. This nay
have been authorized pursuant to the Treaty
of 1946. State, 21.
1863: Japan
On July 16, when Japanese shore batteries
at Shimonoseki fired on a U. S. merchmt
ship, the U.S.S. Wyoming retaliated by firing
on three Japanese vessels lying at anchor.
The shots were returned, and, by the time
the action was over, there were casualties
on both sides. The American Minister had de-
manded redress.
1864: Japan
From July 14 to August 3, U. S. forces pro-
tected the U. S. Minister to Japan when he
visited Yedo concerning some American
claims against Japan. The forces also were
designed to impress the Japanese with Amer-
ican power. LRS, IV, 52.
1864: Japan
Between September 4 and 8, naval for-,es
of the United States, Great Britain, France,
and the Netherlands jointly forced open the
Straits of Shimonoseki, which had been
closed in violation of commercial agroe-
ments. Shore batteries were destroyed and 70
cannon seized. State, 21.
1865-1866: Mexican border
In late 1865, General Sheridan was dis-
patched to the Mexican border with 50,000
troops to back up the protest made by Sec-
retary of State Seward to Napoleon III that
the presence of over 25,000 French troops in
Mexico "is a serious concern to the United
States." In February, 1866, Seward demanded
a definite date be set for withdrawal and
France complied. Though American forces
did not cross the border, the threat of for-
eign military operations was clear and bri-
minent. U.S., 580-581.
1865: Panama
American forces from the U.S.S. St. Mare's
landed to protect American interests during
a revolt. This was-apparently implied by the
Treaty of 1846. State, 22.
1866: China
Various landings by over 100 marines and
seamen were made in June and July at New-
chwang to punish an assault on the Ameri-
can Consul and to guard diplomats. State, I:2.
1867: Formosa
On June 13, 181 Marines and seamen from
the U.S.S. Hartford and U.S:S. Wyoming
landed to punish natives who had murder,*d
the crew of a wrecked American merchant-
man. Several huts were burned. USMC, I, 61.
186'i: Nicaragua
On September 6, Marines landed and ow-
cupied Managua, and Leon. USMC, I, 92.
1868: Japan
From February 1 until April 4, landings
were made at Hiago, Nagasaki, and Yoko-
hama to protect American lives and properly
during local hostilities. USMC, i, 92.
1888: Uruguay
At the request of local Uruguayan author-
ities, several landings were made from five
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V.S. steamers at Montevideo during the
month of February in order to protect Ameri-
can lives and property during%an insurrec-
tion. State, 22.
1868: Colombia
An American force landed at Aspinwall in
April to protect the transit route during the
absence of local police. This was impliedly
permitted by the Treaty of 1846. State, 22.
1869-1871: Dominican Republic
President Grant, having negotiated a treaty
of annexation, sent a strong naval force to
the island to protect it from invasion and
internal disorder, both during consideration
of the treaty by the Senate and for months
after its rejection. Berdahl, 48.
1870: Mexico
On June 17, the U.S.S. Mohican pursued
a pirate ship up the Tecapan River near
Mazatlan, landed a party of Marines and sea-
men, and destroyed it during a pitched bat-
tle. State, 22.
1871: Korea
In June, American landing forces under
Admiral Rodgers captured five Korean forts
after a surveying party, granted permission
to make certain surveys and soundings, had
been attacked. No treaty or convention was
in effect. State, 22.
1873: Colombia
In May and September, nearly 200 Ameri-
can forces landed at the Bay of Panama to
protect American lives and interests during
local hostilities. The actions were impliedly
allowed by the Treaty of 1846. State, 22.
1873: Cuban waters
On October 31, the steamer Virginius, fly-
ing the American flag, was captured some
18 miles from Jamaica by the Spanish steam-
er Tornado, her actual destination having
been to make a landing of men and arms in
Cuba. In violation of treaty stipulations with
the U.S. regarding counsel and trial before a
proper court, a summary court-martial was
convened and with circumstnces of the ut-
most barbarity, a total of 53 of the crew and
passengers were executed, including a consid-
erable number of Americans. Large meetings
were held in this country demanding violent
action against Spain and President Grant au-
thorized the Secretary of the Navy to put our
navy on a war footing. Every available ship
was commissioned or recalled from foreign
stations and war looked imminent. Spain
yielded and the Virginius with her surviving
crew and passengers were returned in late
December. Also, by an agreement concluded
February 27, 1875, Spain admitted the ille-
gality of the capture and the wrongfulness of
the summary execution and paid an indem-
nity of $80,000 to the United States. Chad-
wick, 314-351.
1873-1882: Mexico
U.S. troops repeatedly crossed the Mexican
border to pursue cattle thieves and Indian
marauders. Mexico occasionally reciprocat-
ed. Such incursions were finally recognized
as legitimate by agreements concluded in
1882 and subsequent years. Moore, 418-425.
1874: Hawaii
In February, A party of 150 men from two
U.S. vessels landed to preserve order at the
request of local authorities. State, 23.
1876: Mexico
On May 16, at the request of the U.S. con-
sul at Matamoras, a small American force
was landed to preserve order when the town
was temporarily without a government. State,
23.
1882: Egypt
On July 14, over 100 forces from the U.S.S.
Lancaster, U.S.S. Quinnebaug, and U.S.S.
Nipsic landed at Alexandria, when the city
was being bombarded by the British navy, in
order to protect American interests there,
including the American consulate, State, 23.
1885: Colombia (State of Panama)
On January 18, March 16, March 31, April 8,
April 11, April 12, and April 25, American
forces landed to protect American property
and guard valuables in transit over the
Isthmus during local revolutionary activity,
an action aputliorized under the Treaty of
1846. USMC, I, 96.
1888: Korea
On June 19, 25 men from the U.S.S. Essex
landed at Chemulpo and marched to Seoul
to protect American residents during un-
settled political conditions. The action was
requested by the American Minister. State, 23.
1888-1889: Samoan Islands
In 1886, the German consul announced that
the Sanwan group was henceforth a German
protectorate, an action that brought the
United States and Great Britain together in
opposition. By 1889, Germany and the United
States were close to a direct confrontation.
The United States and Germany, together
with Great Britain, shared certain treaty
rights in Samoa for the maintenance of
naval depots. In November 1888, U.S. Marines
landed from the U.S.S. Nipsic to protect
American interests after civil strife broke out
ashore. In January, 1889, German forces
landed, and, when those forces were attacked
by the natives, German ships shelled the is-
land. This action by Germany aroused the
American public, and Congress appropriated
$500,000 for the protection of American lives
and property on the Island and $100,000 for
the development of Pago Pago harbor. The
United States also ordered two more warships
to the scene. All three powers had warships
on the scene and an untoward event might
have touched off war had not a hurricane
in March, 1889, destroyed all the warships ex-
cept one British vessel. Thereafter, the Ger-
mans invited the three powers to a confer-
ence, which was agreed to and held in Berlin.
In April, 1889, they established a three-power
protectorate there. In 1890 the Samoans were
divided, the United States acquiring Tutuila.
State, 23.
1888: Haiti
In December, American warships made a
display of force to obtain the release of an
American merchant vessel captured by a
Haitian warship. The Haitian Government
surrendered the ship and paid an indemnity
after Admiral Luce gave an ultimatum or-
dering its release before sunset. State, 24.
1889: Hawaii
On July 30, at the request of the American
Minister in Honolulu, the U.S.S. Adams sent
a marine guard ashore to protect American
lives and property during revolutionary dis-
roder. State, 24.
1890: Argentina
The U.S.S. Tallapoosa landed a party in
July to protect the American Consulate and
Legation in Buenos Aires during a revolt.
State, 24.
1891: Navassa Island, Haiti -
American forces from the U.S.S. Kear-
sarge landed on June 2 to protect Ameri-
can lives and property during a period of
unrest. The action was taken pursuant to
Congressional action. State, 24.
1891: Bering Sea
An American squadron operated from
June to October, jointly with British naval
vessels, seizing four schooners. Rogers, 109.
1891: Chile
In August, 102 Americans of the South
Pacific station landed at Valparaiso during
a revolt in order to protect the American
Consulate and American lives. State, 24.
1894: Brazil
The U.S. Navy engaged in gunfire and a
show of force in January to protect American
shipping at Rio de Janeiro during a revolt of
the Brazilian navy. President Cleveland
stated our action "was clearly justified by
public law." State, 24.
1894: Nicaragua
In July, American forces landed at Blue-
fields to protect American interests during
a revolt. State, 24.
1894-1896: Korea
On July 24, at the request of the American
Minister, a force of 21 Marines and 29 sail-
ors landed at Chemulpo and marched to
Seoul to protect American lives and prop-
erty during the Sino-Japanese War. A Marine
guard remained at the American Legation
until 1896. State, 24.
1894-1895: Ching
On December 6, 1894, Marines disembarked
from the U.S.S. Baltimore at Taku and
marched to Tientsin to protect American
lives and property during the Sino-Japa-
nese War. The landing party maintained
order until May 16, 1895. USMC, I, 98.
1895: Colombia (State of Panama)
Marines from the U.S.S. Atlanta landed in
March to protect American interests during
a revolt. This appears to have been author-
ized by treaty. State, 24.
1895-1896: Korea
During internal disorders from October 11,
1895, to April 3, 1896, the American Legation
at Seoul was protected by Marines from vari-
ous ships. Ellsworth, 60.
1896: Nicaragua
On May 2, marines were put ashore at
Corinto by the U.S.S. Alert during revolu-
tionary disorders to protect American Inter-
ests. USMS, 1, 99.
1898: Nicaragua
On February 7, Marines landed at San
Juan del Sur by the U.S.S. Alert to protect
Americans against disorder. USMC, I, 99.
1898-1899: China
American forces guarded the Legation at
Peking and the Consulate at Tientsin from
November, 1898, to March, 1899, during a pe-
riod of unrest. President McKinley reported
this protective action in his annual mes-
sage. State, 25.
1899: Nicaragua
On February 24, in response to a petition
from foreign merchants during an insurrec-
tion, Marines landed to protect life and prop-
erty at San Juan del Norte and Bluefields.
State, 25.
1899: Samoan Islands
Sixty Americans landed on February 14
from the U.S.S. Philadelphia, and on April
1 joined a British force in efforts to disperse
native - rebels. This may have been under
color of treaty or statute. State, 25.
1899-1901: Philippine Islands
The United States employed 126,468 troops
against the -Philippine Insurrection without
a declaration of war after the Treaty of Peace
with Spain was concluded. Presumably the
United States acted to suppress the rebellion
under authority of the Treaty of Peace,
which transferred to it the sovereignty pos-
sessed by Spain in the Philippine Islands.
40C.- of Claims. 26-32.
1900-1901: "Boxer" Rebellion (Peking)
In 1900 President McKinley sent 5,000
troops to join the international military force
organized for the relief of foreign legations
besieged in Peking by Chinese "Boxers."
Using troops already mobilized for the Span-
ish-American War and the Philippine In-
surrection, McKinley did not seek authority
from Congress. Peace terms were concluded
at an international conference, and a peace
Protocol was signed September 7, 1901. The
Protocol was not submitted to Congress. Be-
cause of the obvious inability of Chinese
authorities to control local disorders, the
United States acquired the right to maintain
a guard at Peking for defense of the Ameri-
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can Legation and to station military forces
at certain points in Chinese territory to keep
open communications between Peking and
the sea. (Earlier, in 1858, the United States
had acquired the right by treaty to station
naval vessels in Chinese waterit:) State, 3-4.
1901: Colombia (State of Panama)
American forces went ashore in late No-
vember and stayed until December to pro-
tect American property and to keep transit
lines open across the Isthmus during serious
political disturbances. This apparently was
authorized by the Treaty of 1846. State, 25.
1902: Colombia (State of Panama)
Marine guards landed in April to protect
American lives and the railroad across the
Isthmus during civil disorders. They con-
tinued to land at various times between April
and November. This appears to have been
authorized by the Treaty of 1846. State, 46.
1903: Honduras
American forces disembarked at Puerto
Cortez in March to protect the American
Consulate and port facilities during a period
of revolutionary activity. State, 25.
1903: Dominican Republic
In April, 29 Marines landed at Santo Do-
mingo, where they remained for three weeks
to protect American interests during a pe-
riod of political, disturbances. State, 25.
1903-1904: Syria
A Marine guard landed and remained for
a few days at Beirut in April to protect the
American Consulate during a Moslem upris-
ing. Also our Mediterranean Squadron dem-
onstrated at Beirut from September to Jan-
uary and at Smyrna the next August. State,
25.
1903: Panama
A revolution leading to the independence
of Panama from Colombia broke out in No-
vember. Marines landed from the U.S:S. Dixie
to prevent Colombian troops from carrying
out a threat to kill American citizens, after
Commander Hubbard had refused to allow
the Colombians to transport their troops
across the Isthmus. Marine guards remained
on the Isthmus from the date of Panamanian
independence (November 4, 1903) until Jan-
uary, 1914, to protect American interests dur-
ing the construction of the Canal. This was
allowed under the Hay-Bunau-Varilla Treaty.
State, 25-26.
1903-1904: Abyssinia
Twenty-five American marines were sent
to protect the U.S. Consul General from No-
vember 18, 1903, to January 15, 1904, while
he was negotiating a treaty with the Em-
peror. USMC, I, 109.
1904: Dominican Republic
On January 3, 7, and 17, and on February
11, over 300 Marines landed at-Puerto Plata,
Sosua, and Santo Domingo to protect Ameri-
can lives and property during a revolt.
USMC, 108-109.
1904: Morocco
A squadron demonstrated in Moroccan
waters in June to force the release of a kid-
napped American. A Marine contingent had
landed on May 30 to protect the Consul
General. State, 26.
1904: Panama
American troops were used to protect
American lives and property at Anc6n in
November when a revolt seemed imminent.
This action seems to have been authorized
by treaty. State, 26.
1904-1905: Korea
In January, 1904, over 100 American troops
were sent to guard the American Legation at
Seoul because of the outbreak of the Russo-
Japanese War. They remained until Novem-
ber 1905. In March, 1904, Marines assisted In
the evacuation of American nationals. USMC,
1,108.
1005-1907: Dominican Republic
After ,the Senate failed to ratify a treaty
providing that the United States should
guarantee the integrity of the Dominican
Republic, take charge of its customs, and
settle its obligations, President T. Roosevelt
nevertheless put its term into effect for two
years until in 1907 the Senate ratified a
slightly revised version. Berdahl, 41-42.
1906-1909: Cuba
An American squadron demonstrated off
Havana,: and, in September, marines landed
to protect American interests during a revo-
lution. In October, marine and army units
landed and took up quarters In many Cuban
towns in connection with the temporary oc-
oupation of the country under a provisional
governor appointed by the United States.
This occupation was within the scope of the
provision of the 1903 Treaty of Relations be-
tween the two countries, which gave the
United States the right to intervene to pre-
serve order. The occupation lasted until
January, 1909. State, 26.
1907: Honduras
On M rch 18, during a war between Hon-
duras aild Nicaragua, the U.S.S. Marietta dis-
embark 10 men to guard the American
Consuls at Trujillo. The U.S.S. Paducah
also landed forces at Laguna and Choloma
on Apr 28. State, 26.
In M4y, one hundred men from the U.S.S.
Paducah landed at Greytown to protect
American lives and property during a revolt.
The U.S.S. Dubuque also engaged in shows
of force. Joined combat was "hourly ex-
pected. State, 26.
1 1911: Honduras
Sixty ;men from the U.S.S. Tacoma and
Marietta went ashore at Puerto Cortez dur-
ing a revolt to protect American interests.
The American Commander threatened to use
force if! necessary. State, 26.
1911-1912: China
American forces made six landings to pro-
tect American interests during the initial
stages df a revolution. They were stationed
at Foochow, Chinkiang, Peking, Hankow,
Nanking, Shanghai, and Taku. This may
have occurred pursuant to rights acquired
during the "Boxer" Rebellion. State, 27.
1912: Panama
During June and July, at the request of
local political groups, American troops super-
vised elections outside the Canal Zone. This
was impliedly authorized by the Hay-Bunau-
Varilla ' `reaty. State, 27.
1912: Cuba
In May, American troops landed in eastern
Cuba during a revolt and remained for three
monthsito protect American interests. This
appears: to have been authorized by the
Treaty of 1903. President Taft telegraphed
the Pre ident of Cuba that the action was
for protection only. Hackworth, 328-329.
1912: Turkey
A trop detachment from the U.S.S. Scor-
pion as ~fisted in the protection of the diplo-
matic corps at Istanbul during the Balkan
War. State, 27.
1912: Nicaragua
During a civil war, the President of Nic-
aragua'asked the United States to protect
its citizens resident there. Acting on a recom-
mendation of the American Minister, Presi-
dent Taft ordered sizable landings of marines
in August and September, 1912. Political sta-
bility returned to Nicaragua by January,
1913, but a detachment of marines was kept
in Managua to guard the American Legation
after the rest of the American troops with-
drew. The Legation guard was reinforced in
1922 and remained until August 1, 1925.
State, 27.
1913: China
U.S. forces landed in July at Chapel and
Shanghai to protect American interests. ]log-
ers reports there were many demonstrations
and landing parties by United States forces
for protection in China continuously Irom
1912 to 1941. He writes; "In 1927, for example
this country-had-5,670 troops ashore in C:iina
and 44 naval vessels in its waters. In 1933
we had 3,027 armed men ashore. All this pro-
tective action was in general terms based on
agreements with China ranging from 1858
to 1901." Rogers, 117.
1913: -Mexico
In September a fewMarines disembarked
at Ciaris Estero, during a -period of civil
strife, to aid in the evacuation of American
citizens. State, 27.
1914: = Haiti
Marines landed in January, February, and
August to protect American citizens during
a period of unrest. State, 27.
1914: Dominican Republic
During a period of revolutionary activity,
U.S. naval forces fired at revolutionaries who
were bombarding Puerto Plata, in order to
stop the action. Also, by a threat of force,
fighting in Santo Domingo was prevented.
State, 28. .
1914: Occupation of Vera Cruz, Mexico
On April 9, 1914, an American naval officer
and 9 crewmen from the U.S.S. Dol~)hin
anchored off the coast at Tampico, Me rico,
were arrested and marched through the
streets by local authorities. They were re-
leased and an apology was extended as noon
as the local Mexican commander learned of
the incident. Admiral Mayo, commander of
the American squadron, also demanded e, 21-
gun salute to the American flag. The Mexi-
cans refused and President Wilson proixptly
ordered the North Atlantic battleship fleet to
Tampico. On April 20, he addressed Congress
in a joint session and asked for authority to
use the armed forces, While Congress de-
bated, Wilson learned that a German stei.mer
was headed toward Vera Cruz to unload
munitions for Huerta, and he decided to di-
rect the naval action against Vera Cruz, and,
after an armed engagement resulting in 400
casualties, the Americans occupied the city
on April 21. On April -22, Congress passed a
joint resolution which declared that the
President was "justified in the employment
of the armed forces of the United States to
enforce his demand for unegivocal am-nds
for certain affronts and indignities com-
mitted against the United States," but that
"the United States disclaimed any hostility
to the Mexican people or any purpose to riake
war upon Mexico." By November 23, 1914,
American troops had left Mexican soil.
State, 4.
1915: Dominican Republic
On August 15, the 5th Marine Regiment
arrived at Puerto Plata to protect American
lives and property during a revolutionary
outbreak. Their protective mission listed
until October 12, 1915.
1915-1934: Haiti
In July, at the initiative of the Executive,
the United States placed Haiti under the
military and financial -administration of the
United States, in part to protect American
lives and property and in part to forestall
European intervention to collect debts. Ma-
rines were stationed in Haiti until 1934. The
occupation was sanctioned by a treaty con-
sented to by the Senate in February, 1916,
but the first months of the occupation were
on executive authority alone. State, 28.
1916-1924: Dominican Republic
President Wilson ordered the occupation
of Santo Domingo In May, 1916, owing to
local unrest. At one point, 3,000 marines were
ashore. The United States placed a military
governor in the Dominican Republic but
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turned political affairs over to the Domin-
icans in 1922. U.S. troops withdrew in 1924,
and a general treaty signed that year
formally sanctioned the previous occupation.
The Convention of February 8, 1907, also
appears to have authorized the landing of
U.S. troops. State, 28.
1916: China
American forces landed at Nanking to
quell a riot taking place on American
property. -Apparently this was authorized
by an international agreement. State. 28.
1916-1917: Pershing Expedition into Mexico
In October, 1915, the United States recog-
nized the Carranza regime as the de facto
government in Mexico. At the same time,
Mexican rebel, Pancho Villa, directed a
campaign against the United States. In
January, 191,6, Villa's followers massacred 18
American mining engineers in Santa Ysbel,
Mexico.
Then, on March 9, 1916, 400 of Villa's men
raided Columbia, New Mexico, and killed 17
Americans. The American public was in-
censed, and Wilson delayed sending an ex-
pedition only until he could obtain Car-
ranza's consent. On March 13, 1916, when
Carranza's government acceded, Wilson
ordered General John J. Pershing to take
U.S. Army units into Mexico. On March 16,
Pershing crossed the border with 6,000
troops. On the . following day, Congress
adopted a joint resolution introduced by
Senator Robert LaFollette sanctioning the
use of the armed forces. Until then, Wilson
had been relying on claims of authority
under the Acts of 1795 and 1807 relative to
employing the armed forces whenever there
is "imminent danger of invasion,"
Villa eluded Pershing, and the size of the
U.S. expedition soon grew to such proportions
(12,000 men) that Carranza protested and
demanded its withdrawal, threatening war.
Wilson on June 18 called out the National
Guard and incorporated it into the Army;
150,000 militia were ordered to the Mexican
border. But neither country really wanted
war, and the crisis gradually subsided. Wilson
decided to withdraw all American troops
from Mexico in February, 1917. State, 5-6.
1917: Armed Atlantic Merchant Ships
In February, President Wilson asked Con-
gress for authority to arm U.S. merchant
vessels with defensive guns, but Congress
refused to pass such a law. Thereupon Presi-
dent Wilson acted, on his own authority, to
equip American merchant vessels with guns
and gunners assigned to them from the Navy.
His action occurred priorito the declaration
of war on Germany which did not take place
until April 6, 1917. Willoughby, III, 1568.
1917: Cuba
American troops landed in February at
Manzanilla to protect American interests
during a revolt. Various other landings were
made, and, though the revolt ended in April,
1917, troops remained until 1922 because
of continued unsettled political conditions.
This was authorized by the Treaty of 1903.
State, 28.
1917: China
On December 3 and 4, American troops
landed at Chungking to protect American
lives during a political crisis. Apparently this
was done pursuant to the Treaty of June 18,
1858, and the Boxer Protocol of September 7,
1901. Hackworth, 332.
;1918-1919: Mexico
U.S. troops entered Mexico to pursue ban-
dits three times in 1918 and six times in
1919. In August, 1918, there was a brief
skirmish between American and Mexican
troops at Nogales. State, 28,
1918-1920: Expeditions to Russia
Following the Bolshevik revolution in Rus-
sia in 1917, Allied expeditions landed, in
1918, at Murmansk and then Archangel.
American troops first landed in August, 1918,
with most arriving in Archangel Harbor on
September 4. Though Armistice Day came on
November 11, 1918, the American forces re-
mained until June 27, 1919. At Archangel,
the U.S, contributed some 5,208 men and
suffered some 549 casualties, including 244
deaths.
The Allies also landed units in Siberia in
August and September of 1918 where Bol-
shevik troops were fighting a force of*65,000
Czech soldiers who were trying to fight their
way eastward, The Japanese sent 74,000 sol-
diers; the Americans sent 8,388; and the
British and French provided minor contin-
gents. The American forces began embarking
for home on January 17, 1920, and the last
units left on April 1, 1920.
President Wilson, who acted without Con-
gressional approval, agreed to participate in
the Allied expeditions to aid the anti-Bolshe-
viks, to help several thousands of Czech
troops get back to their homeland, and to
forestall possible Japanese expansionist plans
in Siberia. State, 6.
1919: Dalmatia
At the request of Italian authorities, U.S.
bluejackets were landed at Trau, September,
1919, in order to police order between the
Italians and the Serbs. The action, which was
entirely without the previous knowledge or
consent of Congress, was an extension of the
Constitutional principle of police supervision
as earlier applied in the zone of the Carib-
bean. Berdahl, 56.
1919: Turkey
On May 14, a Marine detachment from the
U.S.S. Arizona landed to guard the U.S. Con-
sulate at Constantinople during the Greek
occupation of the city. USMC, I, 121.
1919: Honduras
A small American force went ashore at
Puerto Cortez to maintain order in neutral
zone during an attempted revolt. State, 29.
1918-1920: Panama
American troops went outside the Canal
Zone, on request of the Panamanian Govern-
ment, to supervise elections and police the
Province of Chiriqui. This was authorized
by the Convention of November 18, 1903.
Hackworth, 331.
1920: China
In March and August, American forces
landed at Riukiang and Youchow to pro-
tect American lives and property. This ap-
pears to have been authorized by interna-
tional agreement. Hackworth, 332.
1920: Guatemala
Forty men from the U.S.S. Tacoma and
Niagara went inland to Guatemala City to
protect the American Legation and other
American interests during local fighting, but
were withdrawn after about 10 days. State, 29.
1920-1922: Siberia
The United States stationed a marine guard
on Russian Island, Bay of Vladivostok, to
protect United States radio facilities and
other property. State, 29.
1921: Panama-Costa Rica
American naval squadrons demonstrated
for one day on both sides of the Isthmus to
prevent war between the two countries over
a boundary dispute. This was impliedly au-
thorized by treaty. State, 29. -
1922: Turkey
In September forces from several Ameri-
can warships went ashore with the consent
of both Greek and Turkish authorities to
protect American interests when the Turkish
forces were advancing on the city of Smyrna.
Hackworth, 333.
1922-1923: China -
There were five landings by Marines from
April, 1922, to November, 1923 (at Peking,
Tientsin, Taku, Tungshan, and Masu Island)
to protect Americans during periods of un-
S.14179
rest. This appears to have been authorized
by international agreements. USMC, I, 122-
123.
1924-1925: Honduras
There were intermittent landings from
February, 1924, to April, 1925, to protect
American lives and property during local
unrest. In March, 1924, the Denver put
ashore 167 men and in September, the U.S.S.
Rochester landed 111 additional forces,
USMC, I, 123-124. -
1924-1925: China
From September, 1924, to June, 1925, over
seven landings were made by the Marines at
Shanghai to protect Americans during a pe-
riod of unrest. This appears to have been
authorized by international agreement.
USMC, I, 124-125; Hackworth, 332-333. -
1925: Panama
As a result of strikes and rent riots, and
at the request of Panamanian officials, 600
troops from the Canal Zone entered Panama
City in October and remained for 11 days to
maintain order. This conformed to American
treaty rights. State, 29.
1926-1933: Nicaragua
When local disturbances broke out in 1926,
the Nicaraguan Government requested that
American forces undertake to protect lives
and property of Americans and other for-
eigners. In 1927, five thousand soldiers were
put ashore.
Rebel political leader, Sandino, who re-
ceived Communist propaganda and financial
support, turned the situation into a real
civil war. In January, 1928, Sandino was
forced to flee to Mexico by Marine forces, but
backed by Communist aid, he returned In
1930 and Nicaragua flared again. By 1933 an
all-Nicaraguan Guardia National became
strong enough so that all U.S. Marines could
leave. In all the marines had engaged in 150
clashes and lost 97 men, 32 in. action. Rebel
losses were approximately over a thousand.
The occupation was initiated entirely on
the executive responsibility of President
Coolidge. The Democrat minority bitterly
criticized his policy as a "private war" and as
"`imperialism," but did not question the
President's authority. State, 6-7; and Dupuy
and Baumer, 168. -
1926: China -
American forces landed at Mankow in Au-
gust and September and at Chingwangtao in
November to protect American interest.
This appears to have been authorized by in-
ternational agreement. State, 29.
1927-1928: Armed Actions in China
Anti-foreign Incidents in China reached
a climax in 1927.
In February, a U.S. expeditionary bat-
talion landed at Chaighai and i n March,
1,228 marine reinforcements landed there. By
the end of 1927, the United States had 44
naval vessels in Chinese waters and 5,670
men ashore. In 1928, when the Nationalists
had gained greater control over Chinese ter-
ritory and purged themselves of Communist
support, the United States reached a sep-
arate accord with them and, in July, signed
a treaty which constituted United States rec-
ognition of the Nationalist Government. A
gradual reduction of United States forces in
China began in the same month. State, 7-8.
1932: China
In February, American forces landed at
Shanghai to protect American interests dur-
ing the Japanese occupation of the city, ap-
parently under treaty. State, 30.
1933: Cuba -
During a revolution, United States naval
forces demonstrated offshore but no forces
landed. This was pursuant to the Treaty of
1903. State, 30.
1934: China
In January, marines from the U.S.S. Tulsa
landed at Foocaow to protect the American
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Consulate, apparently pursuant to treaty
rights, USMC, I, 120.
1936: Spain
From July 27, through September 19, the
Quincy, carrying a marine guard, served in
the Spanish war zone. The vessel touched
at several ports, sometimes evacuating
American nationals. (Master rolls.)
1987-1938: China
Beginning on August 12, 3937, several ma-
rine landings were made at Shanghai to pro-
tect American interests during Sino-Jap-
anese hostilities. Marine strength In China,
assigned under the International Defense
Scheme, reached 2,536 men by September 19.
USMC, II, 2-3.
1940: British Possessions in Western Atlantic
On September 3, President Roosevelt In-
formed Congress that he had agreed to de-
liver a flotilla of destroyers to Great Britain
in exchange for a series of military bases
granted us on British soil along the Western
Atlantic. American troops and ships occu-
pied a number of these points in the follow-
ing months. The President did not ask ap-
proval from Congress. State, 8-9.
1941: Greenland (Denmark)
In April, after the German Invasion of
Denmark, the U.S. Army occupied Green-
land under agreement with the local au-
thorities. Congress was not consulted and
the action appears to be contrary to an
express Congressional limitation on using
troops outside the Western Hemisphere.
State, 8-9.
1941: Iceland
By Presidential order, U.B. troops occu-
pied Iceland on July 7, the same day Con-
gress was notified. The President did not
consult Congress in advance, and, in fact,
the action clearly violated an express re-
striction that Congress had enacted a year
before. Both the Reserves Act of 1940 and
the Selective Service Act of .1940 provided
that United States troops could not be used
outside the Western Hemisphere. Iceland is
generally placed with the section on Europe
in each World Atlas and is some 2,300 miles
away from the United States. State, 8-9.
1941: Dutch Guiana
In November, the President ordered Amer-
lean troops to occupy Dutch Guiana by agree-
ment with the Netherlands Government-in-
exile. Again there was no Congressional au-
thority for the military occupation. State,
8-9.
1941: Atlantic Convoys
By July 7, President Roosevelt had ordered
U.S. warships to convoy supplies sent to
Europe to protect military aid to Britain
and Russia. By September, our ships were
attacking German submarines. There was no
authorization from Congress. Corwin, 203.
1946: Trieste ,
In July, during the Italian-Yugoslav bor-
der dispute in the Trieste area, U.S. Naval
units were dispatched to the scene with open
warfare imminent. After the Yugoslavs
forced down on August 9, and then shot
down on August 19, unarmed U.S. Army
transport planes flying over the former Ital-
ian province of Venezia Giulia. President
Truman ordered our troops along the Morgan
Line of zonal occupation augmented and the
reinforcement of our air forces- in northern
Italy. The Yugoslav-Russian offensive
against Trieste then quieted. Acheson, 195-
196.
1946: Turkey
On August 7, Russia demanded that Tur-
key allow it to participate in the "defense"
of the Straits. On August 14, President Tru-
man met with his chief advisers and ap-
proved their recommendation to send a
powerful naval force, including the super-
carrier Franklin D. Roosevelt, to join the
U.S. Missouri at Istanbul as an afnrma-
tioi of U.S. Intentions to resist the Russian
move against Turkey and the Straits. Presi-
dent Truman informed his advisers that he
understood fully that the action could lead
to war, but that nevertheless he was deter-
mined to prevent Soviet domination of the
areal Acheson, 195, 196.
1946: Greece
In September, during the attempted Com-
munist takeover of Greece, naval units were
'requested by the U.S. Ambassador. One car-
rier was on the scene. USN, 15712.
1948: Palestine
On July 18, a Marine consular guard was
detached from the U.S.S. Kearsarge and sent
to Jerusalem to protect the U.S. Consular
General there. One consular official was as-
sassi ated and two Marines were wounded
during the Arab-Israeli War. USMC, III, 7.
On January 7, Fleet Admiral Nimitz im-
plied. Marine reinforcements sent from the
U.S. to Mediterranean waters served as a
warning to Yugoslavia that the 5,000 U.S.
Army, troops in Trieste were not to be mo-
lested USMC, III, 5.
A platoon of Marines was sent to Nanking
on November, 1948, to protect the American
Embassy when the fall of the city to Com-
munitt troops was imminent. The guard was
withdrawn on April 21, 1949. In November
and December, Marines were sent to Shang-
hai to aid in the evacuation of American
Nationals and to protect the 2,500 Americans
in the!.. Communist encircled city. USMC, III,
8-9.
1950-1953: Korean Conflict
Communist armies of North Korea invaded
South Korea on June 25, 1950, Later that day
the United Nations Security Council de-
nouncTd the aggression, called for an imme-
diate cease-fire, and asked member nations
"to render every assistance to the United Na-
tions in the execution of this resolution."
On June 27 President Truman announced
that he had "ordered United. States air and
sea forces' to give the Korean Government
troops cover and support" and had ordered
the Seventh Fleet to prevent any 'attack on
Formosa and also to prevent the Chinese Gov-
ernment on Formosa from conducting any
air and sea operations against the Commu-
nist mainland. The Security Council, on the
same day, adopted a resolution "that the
members of the United Nations furnish such
assistance to the Republic of Korea as may
be necessary to repel the armed attack and
to restore international peace and security
in the area."
The-Department of State prepared a mem-
orandum, on July 3, 1964, which defended the
authority of the President to take the neces-
sary acqon to repel the attack on Korea, us-
ing the argument that the "President, as
Commander in Chief of the Armed Forces of
the 'United States, has full control over the
use thereof."
Truce talks began in July, 1951, but it was
not until July. 1953, that an armistice was
signed. State, 9-11.
1954-1955: Tachen Islands (China)
From July, 1954, to February, 1955, U.S.
Naval units were employed in evacuation of
U.S. civilians and military personnel. Five
carriers Were on the scene. USN, 15712.
1956: Egypt
On November 1 and 2, a Marine battalion
evacuate# over 1,500 persons, mostly U.S.
national from Alexandria, Egypt, during the
Suez crisis. USMC, III, 34.
1957: Indonesia
On February 14, the 3rd Marines took up
station 5?0 miles northeast of Sumatra ready
to interv ns to protect U.S. nationals during
the Indo esian revolt. USMC, III, 34.
1951: Taiwan
During Communist shelling of Kinmen
Island in July, naval units were dispatched
to defend Taiwan. Four carriers were on the
scene. USN, 15712.
1958.. Venezuela
In January, when mob violence erupted In
Caracas, a company of marines embarked on
board the U.S.S. Des Moines and remained
on station off Venezuela really to protect
American Interests. USMC, III, 36.
1958: Indonesia
In March, a Marine Company, attack
squadron, and helicopter squadron sere de-
ployed with elements of the Seventh Fleet
off Indonesia prepared to protect U.S. citi-
zens and interests. USMC, III, 36.
1958: Lebanon Operation
A period of civil unrest began in Lebanon
in May, 1958, led by Moslems who reportedly
aided by the United Arab Republica'm Presi-
dent Nasser. When a pro-Nasser coup took
place in Iraq July 14, President Chamoun of
Lebanon appealed for assistance to Pr+osident
Eisenhower. On July 15 President Eisenhower
sent 5,000 marines to Beirut to "protect
American lives" and to "assist" Lebaaon in
preserving its political independence. The
President publicly Stressed the provocative
Soviet as well as Cairo radio broadcasts.
Eventually, 14,000 American soldiers and
marines occupied strategic areas in Leba-
non, but with orders not to - shoot unless
shot at.
On the day of the initial landings, the
United States asked the United Nations Se-
curity Council to establish an international
police force to preserve Lebanon's independ-
ence, but the Soviet delegate vetoed the
American resolution. Further, the Soviet
Union announced that it would hold mili-
tary maneuvers near the Turkish and Iran-
ian frontiers.
On August 21, the General Assembly passed
a resolution calling on the member states to
respect one another's territorial integrity and
observe strict non-interference in orvc an-
other's affairs. The resolution regtested
that practical arrangements be made leading
to the withdrawal of troops from Lebanon.
On September 26, the United States notified
the Secretary-General of the United Nations
that it had been possible to withdraw a
portion of the American forces and to work
out a schedule to withdraw the remainder by
the end of October. State, 11-12.
1959-1980: Cuba
In the period from November 20, 1969, to
February 15, 1960, the 2d Marine Ground
Task Force was deployed to protect U.S.
nationals during the Cuban crisis. UI3MC,
111, 42-
1961: Show of naval force in Dominican
waters
On May 30, Dominican dictator Rafael'rru-
jillo was assassinated. Political conditions in
the Dominican Republic steadily deteriorated
during the summer and early autumn. Then,
on November 15, General Hector Trujillo
and General Jose Trujillo, brothers of the
slain dictator, returned to the island. Sec-
retary Rusk stated three days later they ap-
peared "to be planning an attempt to reassert
the dictatorial domination of the political
and economic life of the country ," He
added: "the United States is considering the
further measures that unpredictable events
might warrant."
On November 19, U.S, Navy ships took up
positions three miles off the Dominican coast
and Navy jet planes patrolled the shorel..ne.
The show of force produced the desired ram ult
because the Trujillo brothers and other
members of the family departed for Mim;rrd
before the day was over. According to one au-
thority, "It later transpired that the II',:n-
nedy Administration was prepared to order
U.S. marines ashore if President Joaquin
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Balaguer had so requested or if the Trujillos
had outsted Balaguer from the presidency."
ERR, 449-500.
1962: Thailand
On May 17, the 3d Marine Expeditionary
Unit landed in Thailand to support that
country during the threat of Communist
pressure from outside. On July 1, President
Kennedy ordered 1,000 Marines in Thailand
to return to their ships, and on July 30, the
U.S._ completed the withdrawal of the 5,000
Marines sent there. USMC, III, 56-57.
1962: Cuban naval quarantine
On October 24, confronted with a build-up
of Soviet surface-to-su;face missile bases in
Cuba, President Kennedy ordered a quaran-
tine 500 miles wide in the waters around
Cuba. The blockade was aimed both at pre-
venting delivery of additional Russian mis-
siles and obtaining the removal of those
offensive Russian weapons already in Cuba.
The crisis appears to date from Tuesday,
October 16, when the Government's inner
circles first began to discuss' the idea of a
blockade. On,October 20, the First Armored
Division began to move out of Texas Into
Georgia, and five more divisions were placed
on alert. The Navy deployed 180 ships into the
Caribbean. The Strategic Air Command was
dispersed to civilian airfields and a B-52
bomber force was ordered into the air fully
loaded with atomic bombs.
On October 22, President Kennedy went on
television to explain before the nation the
situation in Cuba and the reasons for the
quarantine. The President first notified Mem-
bers of Congress that same day. On Tuesday,
the 23, the Council of the Organization of
American States formally authorized by a
unanimous vote "the use of armed forces"
to carry out the quarantine of Cuba. Appar-
ently, one day later the blockade went into
effect.
Other notable dates include October 27,
when the Defense Department announced
that '24 troop-carrier squadrons of the Air
Force Reserve were being recalled to active
duty; October 28, when Premier Khrushchev
in a message to President Kennedy, an-
nounced he had ordered the dismantling of
Soviet missile bases in Cuba; November 11,
when Deputy Secretary of Defense Gilpatric
announced the United States had counted
42 medium-range missiles being removed
from Cuba on Soviet ships; and November 20,
when President Kennedy announced he had
ordered the lifting of the naval blockade.
On December 6, V.S. Navy planes verified
that 42 Soviet jet bombers were being trans-
ported home from Cuba. The United States
apparently closed the book on the Cuban
crisis about this date. LRS, I, 24-25; and
LRS, II, 1-18.
1963: Haiti
On May 4, a Marine battalion was posi-
tioned off the coast of Haiti for five days
when trouble developed in that country,
USMC, III, 61.
1964: Congo
In August the United States sent four
C-130 transport planes with approximately
100 flight and maintenance crews and para-
troopers to protect the aircraft while on the
ground. The purpose was said to be to provide
airlift for the regular Congolese troops to
combat areas during a rebellion against the
government of Premier Tshombe and Pres-
ident Kasavubu. Earlier, in July, the United
States had sent 68 officers and men to
Leopoldville to advise the Congolese army,
Both actions followed the withdrawal on
June 30 of the last of the 20,000-man force
which the United Nations had placed in the
Congo in order to keep the peace.
Subsequently, in November, rebels in the
Stanleyville area held over a thousand for-
eign civilian hostages, including 60 Ameri-
cans, who were subjected to many atrocities
and whom the rebels threatened to kill.
When negotiations between the rebels and
the United States failed, the United States
and Belgium arranged to land Belgian para-
troopers to undertake a humanitarian res-
cue operation.
On November 24, the force was airdropped
by U.S. transport aircraft in the Stanleyville
area and liberated most of the hostages.
Belgian paratropers undertook a second res-
cue operation on November 26, capturing
the rebel town of Paulin. In all, about 2,000
foreigners were rescued. President Johnson
assumed "full responsibility" for the United
States role in the decision to transport the
Belgian troops in American planes. Davids,
296-310.
1964-1973: Armed Actions in Laos
At the request of the Laotian Government,
unarmed United States jet planes began
flying reconnaissance missions over the
Plaines de Jarres in May, 1964, in order to
gather information on rebellious forces
headed by leftist Pathet Lao. After two jets
were shot down on June 6 and 7, President
Johnson decided to carry out a limited re-
prisal. On June 9, U. S. Navy jets attacked a
Communist gun position in north central
Laos, and this was followed by 36 "sorties"
which knocked out a number of Communist
posts. The United States has ocntinued to
play a role of air support in Laos to date.
State, 30.
1964-1973: Armed Action in Vietnam
Following the Geneva Accords of 1954
which provisionally divided Vietnam at ap-
proximately the 17th parallel, the Commu-
nists held control of the northern half of the
country while anti-Communists maintained
a precarious hold on the south. A U. S. Mili-
tary Assistance Advisory Group, which as-
sumed responsibility for the training of the
South Vietnamese army after the French
relinquished command, was steadily ex-
panded as Communist guerrilla activity sup-
ported and directed from the north inten-
sified. By 1962 there were' 12,000 U. S. ad-
visors.
In August, 1964, at the request of Presi-
dent Johnson following an attack on Ameri-
can naval vessels in the Gulf of Tonkin,
Congress passed the Gulf of Tonkin Resolu-
tion, unanimously in the House and by a
vote of 88-2 in the Senate, The Resolution
expressed approval and support of "the de-
termination of the President, as Commander
in Chief, to take all necessary measures to re-
pel any armed attack against the forces of
the United States and to prevent further
aggression." Also it provided the United
States is "prepared as the President deter-
mines, to take all necessary steps, including
the use of armed force, to assist any member
or protocol state of the Southeast Asia Col-
lective Defense Treaty requesting assistance
in defense of its freedom." (South Vietnam
is a protocol state of SEATO.) The joint res-
olution was signed into law on August 10 as
Public Law 88-408.
Both this resolution and the SEATO agree-'
ment itself have been claimed as authority
for United States activities in Vietnam. In
addition, several appropriations laws pro-
viding for support of the hostilities in South-
east Asia have been judicially determined
to represent authority for our engagement
there. The Tonkin Gulf Resolution was sub-
sequently repealed by P.L. 91-672 (Jan. 12,
1971).
Since assuming office in January, 1969,
President Nixon has? ordered the withdrawal
of almost 550,000 troops. A peace agreement
ending U.S. involvement in the war was an-
nounced on January 23, 1973. State, 12-14.
1965: Dominican Republic
A revolt broke out in the Dominican Re-
public on April 24, 1965, and on April 28
S 14181
President Johnson announced that Domini-
can military authorities had requested as-
sistance from the United States in protecting
the lives of United States ci.tiSens living in
that country. The President added that he
had ordered the Secretary of Defense to put
the necessary troops ashore to protect Ameri-
cans and that this assistance would be avail-
able to the nationals of other countries as
well.
The first United States military contin-
gent to the Dominican Republic consisted
of 400 men. On May 2 the President an-
flounced that he was sending 200 more men
immediately and that an additional 4,500
would go at the earliest possible moment.
He cited the increasing Communist control
of the revolutionaries, as well as the urgent
need for food, medical supplies, and other
humanitarian assistance to the Dominican
people, as reasons for his decision. At their
peak 21,500 United States troops were in the
Dominican Republic.
On May 5, a five-man OAS peace com-
mission succeeded in achieving a cease-fire
agreement among the contending forces and
on May 6 the OAS voted to create an Inter-
American Peace Force to assist in restoring
peace and order. The arrival on May 21 of
the first contingent of a Brazilian force per-
mitted the withdrawal of 1,700 United States
troops, and as other foreign contingents ar-
rived, additional United States troops were
withdrawn. By the end of 1965, the Inter-
American Peace Force totaled 9,400. In the
meantime, a formula to restore constitu-
tional. government, worked out by an 'OAS
Ad Hoc Commission, made considerable prog-
ress. The inauguration of a civilian, Rector
Garcia Godoy, as provisional president on
September 3, 1965, was a major step toward
the restoration of stability. State, 14-15.
1967: Syrian Coast
In June of 1967, during the Arab-Israeli
War, President Johnson ordered the U.S. 6th
Fleet to move to within 50 miles of the Syrian
Coast as a message to the Soviet Union it
"would have to deal with us" if it entered
the conflict. The action was taken as a coun-
ter move against the Soviet Union after
Premier Kosygin told President Johnson over
the hotline that the Soviets had reached an
"independent decision" that they were pre-
pared to take "necessary actions, including
military" to stop the advance of Israeli
troops into Arab territory, and would give the
Israelis just five hours to unconditionally
halt their operations. Star, D-4; Johnson,
302.
1967: Congo
In July, Lt. General Mabutu, who had now
become President of the Congo, was chal-
lenged by a revolt of about 170 white mer-
cenaries and a few hundred Katangese troops.
The Congolese army numbered around
32,000, but required outside logistical sup-
port in order to crush the revolt.
Responding to a direct appeal from Presi-
dent Mabutu,, on July 8 the United States
sent three C-130 military transport aircraft
to the Congo, with their crews, to provide
the Ceneral Government with "long-range
logistical support." Approximately 150
American military - men arrived with the
planes.
The small American task force immedi-
ately began to drop several plane loads of
paratropers and their equipment and con-
tinued to fly troops until November. On July
15, the first aircraft was withdrawn; on
August 4, the second; and on December, the
last. LRS, III.
1970: Cambodia
From April 30 to June 30, U.S. troops at-
tacked Communist sanctuaries in order to
ensure the success of the program of Viet-
namlzation. LRS, IV, 57.
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1970: Jordanian-Syrian Crisis?
On September 17, King Hussein of Jordan
moved against Palestinian guerrillas in an
effort to reassert the royal authority. Despite
a warning by President Nixon, talking to
newspaper editors in Chicago, that the U.S.
might intervene if Syria orIraqu-threatened
King Hussein's Government, some 300 Sy-
rian tanks crossed into Jordan -during the
next three days. Secretary Rogers con-
demned the Syrian invasion and the U.S.
called on the Soviet Union to use its influ-
ence to persuade Syria to pull out.
President Nixon moved the Sixth Fleet off
the Israeli-Lebanese coast and publicity was
given to the dispatch of the helicopter carrier
Guam with 1,500 marines to join, the Sixth
Fleet, to the alert of the 82d Airborne Divi-
sion in Fort Bragg, N.C., and to the alert of
two airborne battalions of the Eighth In-
faastry Division in West Germany. At the
same time the Israelis began E6 partial mo-
bilization and movements of tanks toward
the northern part of the Jordan River Valley
in position to attack the Syrian invaders. The
U.S. apparently was prepared to intervene
militarily, in coordination with Israel, to
prevent the overthrow of Ring Hussein's Gov-
ernment and to rescue 38 American hostages
known to be in the hands of Palestinian
guerrillas. By September 22, Syrian tanks be-
gan withdrawing and on September 25, the
crisis ended when King Hussein and Yasir
Arafat, the guerrilla chief, agreed on a cease-
fire. N.Y. Times, Oct. 8, 1970, at 1, 12.
1842: Mexico. Commodore T.A.C. Jones
occupied Monterey in the mistaken belief
that war had started between the United
States and Mexico. He withdrew and saluted,
thereby disavowing his action. State, 18.
1857: Nicaragua. An American naval com-
mander compelled the leader of a rebel group
who was trying to seize Nicaragua to leave
the country. The American commander's ac-
tion was tacitly disavowed by the Secretary
of State and apparently repudiated by Presi-
dent Buchanan. State,+20.
1866: Mexico. After General Sedgwich ob-
tained the surrender of the Mexican border
town of Matamoras, he was ordered to with-
draw and his act was repudiated by the
President. State, 22.
Late 1880's: Bering Sea. The United States
paid nearly $500,000 to Britain In damages
resulting from the seizure of British sealers
by United States patrol boats outside the
three mile limit. U.S., 586.
1893: Hawaii. On January 19, Marines from
the schooner U.S.S. Boston landed at Hono-
lulu and were dispatched until April 1 to
protect American lives and property, after
the deposition of Queen Lilluokalani. The
action was later disavowed by the United
States. LRS, III, 53.
1912: Honduras. A small naval force landed
at Puerto Cortez to protect an American-
owned railroad there. Apparently Washing-
ton disapproved and the men were with-
drawn in a day or two. State, 27.
' Eight military engagements which were
subsequently disavowed or repudiated have
been omitted from the above list of prece-
dents. These are:
1812: Amelia Island, Spanish territory.
United States dlsvawed General Matthews'
occupation of the area when he made him-
self the head of a revolutionary party. State,
16.
1824: Puerto Rico, Spanish territory. Com-
modore Porter was later courtmartialed for
exceeding his powers wheB he forced an
apology from a group of pirates who had n-
sulted American naval officers, State, 17.
Sources for compilation 3
Acheson,, D,, Present at the Creation, 1967,
(Cited as Acheson.)
Barck, Wakefield, and Lefler, The United
States A Survey of National Development,
1950. (C1t~d asU.S.)
Berdahl,, C., War Powers of the Executive in
the Unite States, 1921. (Cited as Berdahl.)
Clark, James R., "Right to Protect Citizens
in Foreign Countries by Landing Forces."
Memorandum of the Solicitor for the Depart-
ment of Mate, October 5, 1912. (3rd rev. ed.
with snppl. appendix up to 1933) (Not cited,
but used generally as cross-check.)
Chadwick, F., The Relations of the United
States and Spain, 1909. (Cited as Chadwick.)
Corwin` President: Office and Powers (3d
rev. ed. 1048). (Cited as Corwin.)
Davids Jules, "The United States In World
Affairs 1964." Council on Foreign Relations,
1965 (Cited as CFR, I)
Dupuy and Baumer, The Little Wars of the
United $'tates, 1968. (Cited as Dupuy and
Baumer.)
Ellsworth, Harry A., "180 Landings of Unit-
ed States Marines, 1800-1934." Marine Corps
Historical Section, 1934. (Cited as Ellsworth.)
The Evening Star, Washington, D.C. May
12, 1971.E (Cited as Star.)
Hacks'orth, 2 Digest of Int'l. Law, 1940-
1944. (Cited as Hackworth.)
Library of Congress,. Legislative Reference
Service. "A selected Chronology on Cuba,
September 21, 1961-October 23, 1962." (Cited
as LRS, I.)
Library of Congress, Legislative Reference
Service., "A Selected Chronology on Cuba,
October 23, 1962-January 1, 1963." (Cited as
LRS, II)
Library of Congress, Legislative Reference
Service.: "The Situation in the Congo." Jan-
nary 22, 1968. (Cited as LRS, III.)
Library of Congress, Legislative Reference
Service. "Background Information on the Use
of United States Armed Forces in Foreign
Countries," 1970 Revision. (Cited as LRS,
IV.)
Moore, John B., 2 A Digest of Int'l. Law,
1906. (Cited as Moore.)
The New York Times, October 8, 1970.
(Cited as N.Y. Times.)
Paulin, Charles 0., "Early Voyages of Naval
Vessels to the Orient." United States Naval
Institute Proceedings, V. 36-37 (1910-1911).
(Cited'as Paullin, USNIP, 36-37.)
Richardson, J., 7 A Compilation of the Mes-
sages and Papers of the Presidents, 1897.
(Cited as Richardson.)
Rogers, James F., World Policing and _Me
Constitution, 1945. (Cited as Rogers.)
U.S. State Department, Historical Studies
Division, Armed Actions Taken by the
United States Without a Declaration of War,
1789--1967." Research Project No. 808A,
August, 1967. (Cited as State.)
United States Department of the Navy.
"Summary of Wars/Near Wars Since 1946."
116 Con, Rec. 15712-15713, May 15, 1970.
(Cited as USN.)
United States Marine Corps, Historical
Branch 1, "A Chronology of the United States
Marine Corps 1775-1934," 1965. (Cited as
USMC I.)
United States Marine Corps, Historical
Branch 2, "A Chronology of the United States
Marine Corps 1935-1946," 1965. (Cited as
USMC II.)
United States Marine Corps, Historical
8 Only the primary sources are cited, al-
though in several instances the summary was
prepared from a composite of Information
published in more than one of the sources re-
ferred to herein.
Branch 3, "A Chronology of the United Status
Marine Corps 1947-1964," 1971. (Cited is
USMC III.)
United States Marine Corps Master rolls,
available at Unit Diary Section, HQMC.
(Cited as Master rolls.)
Willoughby, W. W., 3 The Constitutional
Law of the United States, sec. ed., 19i19,.
(Cited as Willoughby, III.)
Worsnop, Richard I., "Inter-American
Peacekeeping," Editorial Research Reports,
vol. 1, No. 23, June 23, 1965. (("dted as ERR.)
B. Five U.S. military actions abroad uncle' a
declaration of war
War of 1812 (1812-I5)
On June 18, Congress approved a declara-
tion of war against England. The war was
officially concluded by the Treaty of Ghent,
December 24, 1814, but the Major battle of
the war occurred with an American victory
at New Orleans In January, 1815.
War Between the United States and Me:dco
(1946-48)
Congress declared war on May 11, 1846.'The
Treaty of Guadalupe Hidalgo ended the con-
flict on February 2, 1848,,
Spanish-American War (1898)
On April 25, 1898, the United States de-
clared war against Spain. The peace treaty
ending hostilities was signed in Palls on
December 10, 1898.
World War I (1917-19)
The United States declared war on Ser-
many on April 6, 1917, and against Austria
on December 7, 1917. The Treaty of Versidlles
was signed on June 28, 1919. The treaty was
never ratified by the United States.
World War II (1941-45)
The United States declared war on Japan,
December 8, 1941, and on Germany and :Italy,
December 11, 1941. The war ended in Europe
on May 8, 1945. Japan signed the formal sar-
render in Asia on September 2, 1945.
C. Fifty major military actions for ;)road
strategic aims
1798-1800: Naval War with France 't'he
U.S. fought primarily for the protection of
its free commerce.
1801-1805: War with Tripoli. The U .S. up-
held its right of free commerce.
1814-1825: Caribbean Area. The U.S. sunk
or captured 65 vessels to protect American
commerce.
1815: Second Barbary War. The U.S. acted
to provide effective protection to Amsracan
commerce.
1844: Mexico. President Tyler deployrd our
troops to protect Texas one year before
annexation,
1846: Mexico. President Polk orderet, (Gen-
eral Scott to occupy disputed territory be-
tweeu the Nueces and the Rio Grande
1853-1854: Japan. Commodore Perm's ex-
pedition of 2000 men and ten ships ad ranced
American commercial interests.
1858: Cuban waters, President Buchanan
ordered a naval force, to Cuban wavers to
protect all vessels of the U.S. on the high
seas from search or detention by the vessels
of war of any other nation.
1864: Japan. U.S. Naval units parts+:ipated
in a joint effort to force open the St:-aits of
Shimonoseki for the free conduct of inter-
national commerce.
1865-1866: Mexican border. General Sheri-
dan and 50,000 U.S. troops backed up a de-
mand from Secretary of State Seward that
French forces withdraw from Mexico,
1869-1871: Dominican Republic. President
Grant sent a strong naval force to protect
the Dominican Republic daring his efforts to
annex the island.
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1888-1889: Samoan Islands, Germany and
the United States were close to warfare due
to their rivalry over naval privileges in the
Samoans.
1899-1901: Philippine Islands. The United
States used 128,468 troops aganist the Philip-
pine insurrection in order to preserve and
foster any rights it had acquired from Spain.
1900-1901: Boxer Rebellion (Peking). The
U.S. sent 5000 troops and marines to relieve
foreign legations in Peking and to keep open
communication between Peking and the sea.
1903-1914: Panama. Marine guards landed
and remained on the Isthmus to protect con-
struction of the Canal.
1905-1907: Dominican Republic. President
T. Roosevelt ordered the administration of
the affairs of the Dominican Republic by the
U.S. In implementation of the Monroe
Doctrine,
1906-1900: Cuba. The U.S. temporarily oc-
cupied Cuba to preserve order.
1912: Cuba. American troops remained
three months to preserve order.
1915-1934: Haiti. U.S. troops occupied
Haiti to forestall European intervention.
1016-1924: Dominican Republic. U.S.
troops occupied Santo Domingo and sup-
ported a military governor in the Dominican
Republic.
minican coast and Navy jet planes patrolled
the shoreline to prevent a revolution in the
Dominican Republic.
1962: Thailand. Some 5000 marines landed
to support Thailand during- a threat of ex-
ternal Communist aggression.
1962: Cuban Naval Quarantine. President
Kennedy ordered a naval quarantine of Cuba
to prevent delivery of additional Russian
missiles and to obtain the removal of those
already in Cuba.
1963: Haiti. A marine battalion was posi-
tioned off Haiti when trouble developed
there.
1964: Congo. A task force of four U.B.
C-130 transport planes with paratrooper
guards was sent to the Congo to provide
airlift for the regular Congolese troops
against a Communist-assisted rebellion.
1964-1973: Vietnam. American forces have
acted to support freedom and protect peace
in Southeast Asia.
1964-1973: Laos. The United States has
supported the free government of Laos, par-
ticularly with air missions.
1965: Dominican Republic. The threat of
a Communist takeover and the need to pro-
vide humanitarian assistance to the Domini-
can people were major reasons for the
American landings.
1917: Armed Atlantic Merchant Ships. Pres- 1967: Syrian Coast. During the Arab
ident Wilson armed American merchant ves- Israeli war, the U.S. 6th Fleet moved to
sels with guns and gunners assigned from within 50 miles off the Syrian Coast as a
the Navy. sign to the Soviet Union it "would have to
1917: Cuba. Several American landings deal with us" if it entered the confict.
were made to preserve order. 1967: Congo. A task force of three U.S.
1918-1920: Expeditions to Russia. The U.S. C-130 transports and 150 men ferried Con-
contributed some 14,000 men to aid the anti- golese paratroopers in order to crush a revolt
Bolsheviks and to forestall `Japanese expan- aganst Mobutu's government.
sionist plans in Siberia. 1970: Cambodia. U.S. troops were ordered
1919: Dalmatia. U.S. troops were landed in into Cambodia to assist the program of Viet-
order to police foreign territory during dis- namization.
orders between the Italians and Serbs.
1926-1933: Nicaragua. The occupation of
Nicaragua foiled the first attempt of Com-
munism to infiltrate Latin America.
1927-1928: China. Nearly 6000 U.S. troops
acted to help stabilize China.
1937-1938: China. Some 2500 marines
helped preserve order in Shanghai under the
International Defense Scheme.
1940: British possessions in Western Atlan-
tic. U.S, occupied military bases on British
soil to protect long range national security
interests.
1941: Greenland. The U.S. Army occupied
Greenland for the same reason as above,
1941: Iceland. U.S. troops occupied Iceland
for the same reason as above.
1941: Dutch Guiana, American troops oc-
cupied Dutch Guiana for the same reason as
above.
1941: Atlantic convoys. U.S. warships were
used to convoy military supplies to Britain
and Russia.
1946: Trieste. President Truman reinforced
V.S. troops along the Italian-Yugoslav border
and dispatched naval units to the scene in
order to resist the Yugoslav-Russian offensive
against Trieste.
1946: Turkey. As a sign of U.S. determina-
tion to resist'Soviet threats against Turkey
and the Straits, President Truman sent a
powerful naval force to Istanbul.
1946: Greece. During the attempted Com-
munist takeover of Greece, U.S. naval units
were sent at the request of the U.S. Am-
bassador.
1950-1953: Korean War. U.S. forces acted
to assist the Republic of Korea in order ''to
1970: President Nixon augmented and
moved the Sixth Fleet off the Israeli-
Lebanese coast in preparation to halt, if
necessary, the Syrian invasion of Jordan and
to rescue 38 American hostages.
D. Eighty-two hostilities with actual combat
or ultimatums
1798-1800: Quasi-war with France.
1800: West Indies.
1801-1805: War with Tripoli.
1806: Mexico.
1806-1810: Gulf of Mexico.
1814-1825: Caribbean area.
1815: Second Barbary War.
1816-1818: Spanish Florida.
1817: Amelia Island (Spanish
1820: West Africa.
1822: Cuba.
1823: Cuba.
1825: Cuban Keys.
1827: Greece.
1828: West Indies.
1830: Haiti.
1831-1832: Falkland Islands
1832: Sumatra.
1835: Samoan Islands.
1837: Mexico.
1840: Fiji Islands.
1841: Drummond Islands
1841: Samoan Islands,
1843: West Africa.
1845: African coast.
1846: Mexico.
1850: African coast.
1851: Turkey (Apparently no shots fired,
but the force displayed amounted to a corn-
restore international peace and security in pulsory ultimatum).
the area." 1851: Johanna Island (East of Africa).
1853: China.
1957: Taiwan, U.S. naval units were dis- 1853: West Coast of Africa.
patched to defend Taiwan. 1853: Smyrna.
1958: Lebanon. A primary purpose of using 1853-1854: Japan (Commodore Perry's ex-
U.S. armed forces in Lebanon was to assist pedition including 10 ships and 2000 men
Lebanon in preserving its political independ- conveyed an imminent threat of using force).
ence. 1854: China.
1961: Dominican Waters. U.S. Navy ships 1854: Greytown, Nicaragua.
took up positions three miles off the Do- 1854: West Coast of Africa.
1854: Okinawa.
1855: China.
1855: Fiji Islands.
1855: Uruguay.
1856: China.
1858: Fiji Islands.
1858: African coast.
1859: African coast.
1859: Paraguay (The Naval display of force
amounted to compulsion).
1863: Japan.
1864: Japan.
1865-1866: Mexican border (General Sheri-
dan and 60,000 American troops backed up
the demand of Secretary of State Seward
that French forces leave Mexico).
1867: Formosa.
1867: Nicaragua.
1870: Mexico.
1871: Korea.
1888: Haiti (American Commander issued
an ultimatum threatening force if neces-
sary).
1888-1189: Samoan Islands (Three powers
had warships on the scene during an intense
rivalry over claims in the islands. War was
close when a hurricane destroyed German
and American vessels).
1891: Bering Sea. V
1894: Brazil.
1899: Samoan Islands.
1900-1901: Boxer Rebellion (China).
1899-1901: Philippine Insurrection.
1910: Nicaragua (Armed combat was
"hourly expected").
1911: Honduras (The American Com-
mander expressly threatened to use force if
necessary).
1914: Dominican Republic.
1914: Occupation of Vera Cruz, Mexico.
1915: Haiti.
1916: Dominican Republic.
1916-1917: Pershing Expedition into Mex-
ico.
1917: Armed Atlantic merchant ships.
1918-1919: Mexico.
1918-1920: Expeditions to Russia.
1926-1933: Nicaraguan occupation.
1927-1928: Armed actions in China,
1941: Atlantic convoys.
1946: Trieste.
1948: Palestine.
1950-1953: Korean War.
1962: Cuban naval quarantine.
1964-1973: Armed actions in Laos.
1965: Dominican Republic.
1964-1973: Vietnam War.
1967: Syrian coast.
1970: Cambodia.
E. Ninety-Seven Military Actions Lasting
More Than Thirty Days
1798-1800: Quasi-War with France.
1801-1805: War with Tripoli.
1806-1810: Gulf of Mexico.
1813-1814: Marquesas Islands (South Pa-
cific).
1814-1825: Caribbean Area.
1815: Second Barbary War.
1816-1818: Spanish Florida.
1820-1822: West Coast of South America.
1823: Cuba.
1827: Greece.
1831-1832: Falkland Islands.
1835-1836: Peru.
1838-1839: Sumatra.
1843: West Africa.
1843: China.
1844: Mexico.
1846: Mexico.
1852-1853: Argentina.
1853-1854: Japan.
1854: China. .
1854: Okinawa.
1855: Fiji Islands.
1855: Uruguay.
1856: China.
1858: Cuban waters.
1858-1859: Paraguay.
1858-1859: Turkey.
1865-1866: Mexican border.
1866: China.
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1868: Japan.
1869-1871: Dominican Republic.
1873: Colombia.
1873: Cuban waters.
1873-1882: Mexico.
1885: Colombia.
1888-1889: Samoan Islands.
1891: Bering Sea.
1894: Nicaragua.
1894-1895: China.
1898-1899: China.
1899: Samoan Islands,
1899-1901: Philippine Islands.
1900-1901: "Boxer" Rebellion (Peking).
1901: State of Panama.
1902: State of Panama.
1903: Panama.
1903-1904: Abyssinia.
1903-1904: Syria.
1904: Dominican Republic.
1904-1905: Korea.
1906-1909: Cuba.
1907: Honduras.
1911-1912: China.
1912: Panama.
1912: Cuba.
1912: Nicaragua.
1913: China.
L914: Haiti.
1914: Vera Cruz (Mexico).
1914-1915: Dominican Republic.
1915: Occupation of Haiti.
1916: Occupation of Dominicans Republic.
1916-1917: Pershing Expedition into
Mexico.
1917: Armed Atlantic merchant ships.
1917: Cuba.
1918-1919: Mexico.
1918-1920: Expeditions to Russia.
1918-1920: Panama.
1920-1922: Siberia.
1922-1923: China.
1924-1925: China.
1924-1925: Honduras.
1926-1933: Nicaragua.
1926: China.
1927: China.
1936: Spain.
1937-1938: China.
1940: Occupation of British possessions in
Western Atlantic.
1941: Occupation of Greenland.
1941: Occupattion of Dutch Guiana.
1941: Occupation of Iceland.
1941: Atlantic convoys.
1946: Trieste.
1948: Mediterranean.
1948-1949: China.
1950-1953: Korean War.
1954-1955: Tachen Islands (China).
1958: Lebanon.
1959-1960: Cuba.
1962: Thailand.
1962: Cuban naval quarantine.
1964-1973: Laos.
1964-1973: Vietnam.
1964: Congo.
1965: Dominican Republic.
1967: Congo.
1970: Cambodia.
One hundred three military actions by the
United States outside the Western Hemis-
phere
1801-1805: War with Tripoli.
1813-1814: Marquesas Islands (South Pa-
cific).
1815: Second Barbary War.
1820: West Africa.
1827: Greece.
1832. Sumatra.
1835: Samoan Islands.
1838-1839: Sumatra.
1840: Fiji Islands.
1841: Drummond Island (Pacific Ocean).
1841: Samoan Islands.
1843: West Africa.
1843: China.
1844: China.
1845: African coast.
1849: Smyrna (Now Izmir, Turkey).
1850: African coast,
1851: Turkey.
1851: Johanna Island (east of Africa).
1853: China.
1853: African Coast.
1853: Cmyrna.
1853-1$54: Japan.
1854: African coast.
1854: Okinawa.
1854: China.
1855: China.
1855: Fiji Islands.
1856: China.
1858: Fiji Islands.
1858: African coast
1858-1$59: Turkey.
1859: African coast.
1859: China.
1860: $issembo (West Africa).
1863: Japan.
1864: Japan.
1864: Japan-
1866: China.
1867: Formosa.
1868: Japan.
1871: Korea.
1874: Hawaii.
1882: Egypt.
1888: Korea.
1888-1089: Samoan Islands.
1889: Hawaii.
1894-1896: Korea.
1894: China.
1895-1$96: Korea.
1898-1899: China.
1899: Samoan islands.
1899-1901: Philippine Islands.
1900-1001:'Boxer" Rebellion (Peking).
1903-1804: Syria.
1903-1604: Abyssinia (Ethiopia).
1904: Morocco.
1904: Korea.
1911-1912: China.
1912: Turkey.
1913: China.
1916: China.
1917: Armed Atlantic merchant ships.
1918: China.
1918-1!920: Expeditions to Russia.
1919: Turkey.
1919: Dalmatia.
1920: China.
1920-1922: Siberia.
1922: Turkey.
1922-1923: China.
1924: China.
1924-1925: China.
1926: China.
1927: China.
1932: China.
1934: China.
1936: Spain.
1937-1938: China.
1941: Occupation of Greenland.
1941: Occupation of Iceland.
1941: Atlantic convoys.
1946: Turkey.
1946: Trieste.
1946: Greece.
1948: Palestine.
1948: Mediterranean.
1948--1949: China.
1950--1953: Korea.
1954--1955: Tachen Islands (China).
1956: Egypt.
1957: Indonesia.
1957: Taiwan.
1958: Indonesia.
1958: Lebanon.
1962: Thailand.
1964--1973: Laos.
1964-1973: Vietnam.
1964: Congo.
1967: Syrian coast.
1967: Congo.
1970: (Cambodia.
1970: Jordanian-Syrian Crisis.
G. 81 MILITARY OPERATIONS ARGUABLY INITIATED UNDER
PRIOR LEGISLATIVE AUTHORITY (NO DECLARATIONS OF
WAR)
Legisla-
Year Military operations tion Treaty,
1798 to 1800--- Quasi-War with France- X
1801 to 1805___ War with Tripoli_______ X
1813 ---------- Spanish Florida------- X
1806 to 1810___ Gulf of Mexico________ X
1813 to 1814___ Marquesas Islands----- X
1814 to 1825___ Caribbean area -------- X
1815 ---------- Second Barbary War___ X
1817 ---------- Amelia Island --------- X
18201 --------- West Africa ----------- X-
1822--------- Cuba----------------- X
1823---------- Cuba-., -------------- X
1824 ---------- Cuba----------------- X
1825 ---------- Cuban Keys ----------- X
18272 ......... Greece--------------- X
18282 -------- West Indies___________ X
18322 --------- Sumatra -------------- X
18352 --------- Samoan Islands ------- X
1838 to 18392__ Sumatra -------------- X
18412 --------- Drummond Island----- X
18412________ Samoan Islands.------ X
184312 ........ West Africa ----------- X
1845, --------- African coast -------------------- X
1850 1.________ African coast____________________ X
1851 2--------- Johanna Island, east of X
Africa.
1853, --------- African coast ----------- e_______ X
18541_________ African coast____________________ X
1854--------- Okinawa -------------- -------- X
18552--------- China---------------- X
1856---------- Panama------------------------ X
1858 1 --------- African coast____________________ X
1859'--------- African------------------------- X
1859--------- Paraguay----------------------- X
1860 --------- Panama---------------------- X
1864.---------- Japan-------------------------- X
1865---------- Panama------------------------ X
1867 2_________ Formosa______________ X
1868 --------- Columbia ----------------------- X
1870 --------- Mexico--------------- X
1873---------- Columbia__________________X
1885 --------- Panama---------------------- X
1888 to 1889___ Samoan Islands ------- X X
1891 ---------- Navassa Island, Haiti__ X
1894---------- Brazil---------------- X
1895 ---------- Panama------------------------ X
1899__________ Samoan Islands------- X X
1899 to 1901___ Philippine Islands_______________ X
1901 ---------- Panama------------------------ X
1902---------------do------------------------- X
1903--------------do-------------- ----------- X
1904---------------do------ - --------------- X
1906---------- Cuba----------- --------------- X
1911 to 1912___ China ------------- --------- X
1912 -------- Panama------------------------ X
1912---------- Cuba------------------------- X
1913 ---------- China------------------------- X
1914 ---------- Vera Cruz, Mexico ----- X
1916 ---------- Pershing Expedition X
into Mexico.
1916---------- China-------------------------- X
1917---------- Cuba--------------------------- X
1918---------- China-------------------------- X
1918 to 1920___ Panama ------- -------- _-------- X
1920---------- China- --- ----- ------------- X
1921 ---------- Panama-Costa Rica______________ X
1922 to 1923___ China ------------------- .---- . X
1924---------------do------------------------ X
1924 to 1925___-China- _______________________ X
1925---------- Panama------------------------ X
1926---------- China-..------- -- ------------- X
1927---------- China----------- -------------- X
1932---------- China_---------- -------------- 1<
1933---------- Cuba-------------------------- X
1934---------- China----------------------- X
1937 to 1938___ China__________________________ X
1950 to 19533_- Korean War_____________________ X- N.
Charter)
1957 ---------- Taiwan---- ------- X X
19584 --------- Lebanon Operation--__ X
19626_________ Cuban Naval Quaran- ---------- X (OAS)
tine.
1962---------- Thailand ----------------------- X
1964 to 1973 --- Vietnam______________ X X
1964 to 1973___ Laos_________________ X X
1970 ---------- Cambodia ------------ X X
1 Indicates operation occurred under act of 1819 at truly of
Aug. 9, 1842, with Great Britain, both relative to the suppr:ssion
of slavery.
2 Indicates military activity may have occurred pursuant to
broad interpretation of authority conferred by certain a+ts of
Congress against piracy. See act of Mar. 3, 1819 (3 Stat, 510),
act of Jan. 14, 1823 (3 Stat. 720), and act of Aug. 5, 1811 (12
Slat 314).
3 Though reliance was also placed on the U.N. Charter, the
Truman administration based its authority to commit coops
squarely on the President's independent constitutional authority.
Rogers, discussion supra, footnote 55, at S7197.
4In fact President Eisenhower sent troops into Le1anon
without seeking specific congressional approval and without
specifically basing his authority on the 1957 Middle East
Resolution. Id.
6 According to Secretary of State Rogers, "the Cuban R asolu-
tion, unlike the other area resolutions contained no grunt of
authority to the President." Id. -
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Mr. GOLDWATER. Mr. President, X
understand the sponsors of S. 440 would
refute my interpretation of the "declara-
tion of war" clause as a weak power. I
have described the declaration through-
out this discussion as meaning no more
than that Congress possesses the power
to proclaim its purpose of bringing the
total resources of the Nation into sup-
port of an already existing war, or that
Congress may by this method provide a
way by which the United States could
enter into "offensive war," such as might
have existed if the United States had
acted under the French treaty of 1793
to join France in war with Great Britain.
In making the rebuttal, three points
are raised. One is a quotation by Alex-
ander Hamilton relative to the position
of the President as Commander in Chief,
the second is Thomas Jefferson's famous
remark about the "Dog of War," and the
third is a statement taken from the Civil
War "Prize Cases."
Mr. President, I wish to respond to
each of these three points because they
illustrate the misunderstanding which
in my opinion exists among the sponsors
of the legislation with respect to the true
purpose of the Founding Fathers. First,
let us examine the comment by Alex-
ander Hamilton, in the Federalist No. 69,
that the President's function as Com-
mander in Chief is only one of "the su-
preme command and direction of the
military and naval forces." Now, I would
ask, Mr. President, if this power alone is
not enough to indicate that Congress
cannot exercise policy control over the
use of the Armed Forces? Certainly,
there cannot be two supreme heads of
the military and naval forces.
As I have discussed earlier in the
debate, Hamilton wrote in a later Fed-
eralist Paper, No. 73, a clarification of
exactly what he meant by professing
that the President retains "the supreme
command and direction" over the mili-
tary froces. In Federist 73, he wrote:
Of all the cares or concerns of government,
the direction of war most peculiarly demands
.those qualities which distinguish the exercise
of power by a single hand. The direction of
war implies the direction of the common
strength; and the power of directing and em-
ploying the common strength forms a usual
and essential part in the definition of execu-
tive authority.
In other words, Mr. President, Hamil-
ton meant that the direction of military
affairs must be managed by a single
hand, not by 535 Members of Congress,
in order that the Nation could act with
promptness, directness, and unity of ac-
tion.
To argue, as the sponsors of S. 440 do,
that Hamilton's mere reference to the
declaring of war as appertaining to the
legislature means that Congress was
thereby given the sole power to go to war
is to make an assumption about the
whole meaning of the declaration clause
which Hamilton himself never made.
Second, I have heard reference made
on many occasions by the sponsors of war
powers legislation to a statement made
by Thomas Jefferson in a letter he wrote
to James Madison in 1789, wherein Jef-
ferson stated that:
We have already given in example one ef-
fectual check to the Dog of War by transfer-
ring the power of letting him loose from the
Executive to the legislative body, from those
who are to spend to those who are to pay.
But Madison himself directly contra-
dicted the implication which the sponsors
of S. 440 are making from this sentence,
which was written in the heat of a de-
bate then occurring between Jefferson
and Hamilton over the President's war
powers. I would refer my colleagues to
the Federalist No. 38, where Madison re-
veals that the Framers had intentionally
removed the direction of war from Con-
gress, where it had been placed under the
Articles of Confederation, because, in his
words, it is-
Particularly dangerous to give the keys of
the Treasury and the command of the army
into the same hands.
In the Federalist No. 19, written by
Madison and Hamilton jointly, Madison
had also given evidence that the Found-
ing Fathers did not intend to place the
sole power to go to war in Congress. Here
Madison clearly states that the Constitu-
tional Convention had specifically re-
jected as a political model, because of
its inherent weakness, the example of a
then current form of government used
in Europe in which the Diet, or legislative
body, was vested with the power to make
or commence war.
Madison wrote :
Military preparations must be preceded by
so many tedious discussions. That before the
Diet can settle the arrangements the enemy
are in the field.
Mr. President, I also would like to ob-
serve that a major change of view oc-
curred in the position of Thomas Jeffer-
son himself, who later openly admitted
his earlier error in believing that the
United States could check "the Dog of
War" whatever the trend of world events
elsewhere. In a letter which he wrote on
March 2, 1815, Jefferson acknowledged:
I had persuaded myself that a nation, dis-
tant as we are from the contentions of
Europe, avoiding all offences to other powers,
and not over-hasty in resenting offence from
them, doing justice to all, faithfully ful-
filling the duties of neutrality, performing
all offices of amity, and administering to
their interests by the benefits of our com-
merce, that such a nation, I say, nfight ex-
pect to live in peace, and consider itself
merely as a member of the great family of
mankind . . . But experience has shown that
continued peace depends not merely on our
own justice and prudence, but on that of
others also.
Mr. President, this reflects the same
practical attitude which guided the
Founding Fathers in the formation of
the new Republic. However much the
Founding Fathers may have wished to
live by a policy of avoiding foreign
troubles, they recognized from having
witnessed the great weakness in the
management of military affairs by the
Continental Congress, that the Nation
cannot be safe unless there is a single
Commander in Chief with an unre-
stricted discretion to resist foreign dan-
gers whenever and wherever they may
exist.
Third, the decision of the Supreme
Court in the "Prize Cases" is relied
upon as authority for the proposition
that Congress may curb the Executive's
commitment of military force. The de-
cision involved the legality of President
Lincoln's naval blockade against the
Confederacy. The sponsors of S. 440
argue that since the Court declared that
the President "cannot initiate war" this
means he cannot go to war.
Again, Mr. President, there is a total
misreading of what the Court actually
went on to hold. This bare statement is
taken totally out of context, even though
it was fully explained at a later point
.in the Court's decision to mean exactly
the contrary of what war powers advo-
cates are now claiming it meant. In up-
holding President Lincoln's right to meet
the rebellion, the Court specifically said:
If a war be made by invasion of a foreign
nation, the President is not only authorized
but bound to resist force by force. He does
not initiate the war, but is bound to accept
the challenge without waiting for any special
legislative authority. (emphasis added) 67
U.S. 635, 668 (1863).
In my opinion, this case, far from in-
dicating a superior role for Congress,
means the Court has recognized a duty
on the part of the President to answer
threats against the Nation without wait-
ing for Congress to baptize them as a
declared war.
In fact, the language of the High Court
in the "Prize Cases" is taken by most
constitutional scholars being . broad
enough to constitute juristic justification
of the many instances in our history in
which the President has ordered belli-
gerent measures abroad without a state
of war having been declared by Congress.
See, for example, B. Schwartz, "The
Reins of Power," at 98 (1963).
The "Prize Cases" also make the point,
which I have raised throughout this de-
bate, that the President does not "ini-
tiate" war when he responds to foreign
dangers. As John Quincy Adams re-
marked in 1836, during his eulogy on the
life of James Madison, "peace must be
the offspring of two concurring wills."
Adams explained:
War is a state in which nations are placed
not alone by their own acts, but by the acts
of other nations. The declaration of war is
in its nature a legislative act, but the con-
duct of war is and must be executive. How-
ever startled we may be at the idea that the
Executive Chief Magistrate has the power of
involving the nation in war, even without
consulting Congress, an experience of 50
years has proved that in numberless cases he
has and must have exercised the power.
Mr. President, I do regret that I have
to absent myself from the Chamber, but
it is necessary. I do not think my being
here is going to alter this decision one
bit. I fully expect the bill to be vetoed,
as I think it should be. I do not say this
in a derogatory way. I still think it is a
constitutional matter, not a legislative
matter. I think it is very obvious that
Members of this body-really have not
studied it, with the exception of a hand-
ful. It is a very interesting study. I have
been at it myself for over 9 years, and as
I have said on the floor time and time
again, experts with whom I have dis-
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CONGRESSIONAL RECORD - SENATE July 20, 1973
cussed it, including every Secretary of
State living, have convinced me that I
am right, that the President does have
the warmaking power under the ? Con-
stitution, that the Congress right to
declare war means nothing except to de-
clare; and if you look it up- in the dic-
tionary, it is a very weak word.
Congress purposely was ?denied the
right to have the country to war by the
Constitution because of the terrible ex-
periences that Washington had under
the Continental Congress, when we near-
ly lost that war because of the interfer-
ences by Congress in the day;-to-day ac-
tions on the battlefield, including the
replacement of commanding generals,
and so forth; and when the Constitution,
was written, the Founding Fathers pro-
vided that the President, as Commander
in Chief-not specifically, I will admit
that-would have command of the forces
as well as all responsibility for enforcing
the laws of the land. It gave to the Con-
gress the right-in fact, the power-4o
raise the armies and the navies, to pro-
vide regulations for them, to provide
weapons, and so forth and so forth, and
also allowed them to call up the militia,
which, if you will study that part of the
Constitution, meant just that-the
militia-in other words, the national
police or the National Guard type of ac-
tivity. But nowhere does it give it power
to go to war. We can declare war every
5 minutes, but not one man will leave
the shores of America until the Presi-
dent says so.
I know this legislation is designed to
change that to some extent, but again
I do not believe it is the proper way to
approach it.
In closing, I just wanted to again say
I think it is very proper that this mat-
ter has come before the Congress. It is
not the first time. Almost- constantly
during our 200 years as a Republic the
matter has been under discussion-
never as forceful as this discussion, nor
has it ever reached the head that this
has reached. I think it is wise that we
have held these hearings and held the
discussions on the floor, so that the
American people might have a record
of what we are talking about, and I would
hope the American people-
The PRESIDING OFFICER. The time
of the Senator has expired.
Mr. EAGLETON. Mr. President, I yield
1 minute to the Senator from Arizona.'
Mr. GOLDWATER. Including the
academics in this country and all men in
politics can read what has been going
on the floor here, I think they will
have a very complete history. of what we
are talking about and have a better un-
derstanding in regard to what we did and
in making any corrections__ that they
may want to make.
In closing, I thank the Senator from
Missouri for yielding to me.
Mr. MUSKIE. Mr. President, will the
Senator yield?
Mr. GOLDWATER. I yield.
Mr. MUSKIE. First, I wish to express
my regret that the Senator will not be
here later, especially for the reason he
has stated. I want to thank the Senator
for his contribution to this issue. I have
studied his statement before the com-
mittee, and I have studied his statements
on the floor. I know he has given a lot
of time and study to the consideration of
this issue. I think he has helped illumi-
nate th issue in a very constructive way.
I do not agree with many of the conclu-
sions he has reached, but I wanted to
take a moment to compliment him for his
contribution.
Mr. JAVITS. Mr. President, if the
Senator will yield me 2 minutes in op-
position, I would like to insert in the
RECORD ' immediately after the argument
by the Senator from Arizona, so that
historians or others who read the RECORD
may follow the argument carefully, first,
an excerpt from the powers of the Presi-
dent as,commander in chief asexplained
by Alexander Hamilton in Federalist 69,
which appears on page 11 of the commit-
tee report in these words:
The President is to be commander in chief
of the army and navy of the United States.
In this respect his authority would be nomin-
ally the same with that of the king of Great
Britain,'but in substance much inferior to
it. It would amount to nothing more than
the supreme command and direction of the
military and naval forces, as first General
and Admiral of the Confederacy, while that
of the British king extends to the declaring
of war and to the raising and regulating of
fleets and armies-all which, by the Con-
stitution under consideration, would apper-
tain to the legislature 1s
And then an excerpt from a letter of
Jefferson to Madison in 1789:
We have already given in example one
effectual check to the Dog of war by trans-
ferring the power of letting him loose from
the Executive to the Legislative body, from
those who are to spend to those who are to
pay"
Finally, the Supreme Court of the
United ' States, in the "Prize Cases" of
1862, said:
By the Constitution, Congress alone has
the power to declare a national or foreign
war ... The Constitution confers on the
President the whole Executive power. . .
Be is Commander-in-Chief of the Army and
Navy of' the United States. . . . He has no
power to initiate or declare a war either
against a foreign nation or a domestic state. 's
Mr. 1l:AGLETON. Mr. President, I am
prepared to yield back the remainder of
my time on amendment No. 364.
Mr. 1' IUSKIE. Mr. President, I think
the amendment has been sufficiently dis-
cussed. I am prepared to accept it. The
Senator from New York has indicated he
is willing to accept it. I yield back the re-
mainder of my time.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the amendment of
the Senator from Missouri (No. 364) put-
ting the question).
The amendment was agreed to.
Mr. EAGLETON. Mr. President, pur-
suant to the previous order, is my next
amendment the pending business?
The PRESIDING OFFICER. The Sen-
ator is! correct. The clerk will report
amendment No. 365.
The legislative clerk proceeded to state
the amendment.
Mr. $AGLETON. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 4, line 22, strike out the words
"Specific statutory authorization is required
for" and insert in lieu thereof the following:
"For purposes of this clause (4), 'introduc-
tion of the Armed Forces of the United
States' Includes".
Mr. EAGLETON. Mr. Presidn:t,
amendment 365 is intended to correct a
drafting error in section 3.4. That sec-
tion contains a provision Which requires
statutory authorization to assign mem-
bers of the Armed Forces to command or
coordinate, et cetera, foreign military
forces. Immediately following this pro-
vision is another which sets forth the
limitations on present treaties and cur-
rent provisions of law. This provision
reads as follows:
No treaty in force at the time of the en-
actment of this Act shall be construed as
specific statutory authorization for, or a ,pe-
ciflc exemption permitting, the introduction
of the Armed Forces of the United States in
hostilities or in any such situation, within
the meaning of this clause (4); and no pro-
vision of law in force at the time of enact-
ment of this Act shall be so construed ur.less
such provision specifically authorizes the in-
troduction of such Armed Forces in hoe tili-
ties or in any such situation.
The language in this provision refers
back to the language in the introduce ory
sentence of clause (4), but does not pick
up the separate provision which concerns
the assignment of members of the Armed
Forces to advise foreign military forces.
The effect of the failure to pick up this
language is that treaties and proves ons
of law in force on the date of enactment
are subject to being construed as author-
izing the assignment of members of the
U.S. Armed Forces as advisers to foreign
military forces who may be engaged, or
there is an imminent threat that they
may be engaged, in hostilities.
To correct - this drafting error the
words, "Specific statutory authorization
is required for" at the beginning of the
"advisor" provision, are striken by my
amendment and the following phrase is
inserted: "For purposes of this cli.use
(4), 'introduction of the Armed Fo.-ces
of the United States' includes"
This change ties the "advisor" provis-
ion to the language used in the subse-
quent provisions concerning treaties and
current provisions of law, as well as to
the introductory sentence in clause (4),
thereby assuring that all reference:; to
the introduction of the Armed Forces of
the United States will be tied in and en-
compass the assignment of U.S. advt;ers
to foreign military force.
Mr. President, this amendment does
not change the original intent of the
sponsors, it simply makes that intent
clear in legislative language.
Mr. MUSKIE. Mr- President, thi> is
another amendment which represent; an
improvement in drafting. I think it more
clearly reflects the purpose of the :nec-
tion of the bill to which it relates. I am
prepared to accept the amendment.
Mr. JAVITS. Mr. President, the Fur-.
pose of the bill is to make the whole
clause four applicable without question.
In the drafting originally we believed
that by repeating the words with w.ich
the clause opened-"pursuant to specific
statutory authorization,"-we were do-
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Ing exactly that. I still believe that is the
case. However, the Senator from Mis-
souri (Mr. EAGLETON) suggests that is not
necessary for clause four. He feels that
we should make the words of clause four
applicable to this particular situation
which relates to participation in the
ways described, to the military forces or
the use of the military forces in another
country.
I see no objection to it whatever.
Draftsmen have a lot of choices of this
kind. The Senator from Missouri has
contrbuted so much that I defer to his
judgment on this matter. The amend-
ment is a drafting, "perfecting" amend-
ment and it is acceptable.
Mr. MUSKIE. Mr. Presiden, I yield
back the remainder of my time.
Mr. EAGLETON. Mr. President, I yield
back the remainder of my time.
The PRESIDING OFFICER. All time
has been yielded back. The question is on
agreeing to the amendment of the Sena-
tor from Missouri (putting the question).
The amendment was agreed to.
Mr. EAGLETON. Mr. President, I call
up my amendment No. 366.
The PRESIDING OFFICER. The clerk
will report the amendment.
The legislative clerk proceeded to state
the amendment.
Mr. EAGLETON. Mr. President, I ask
unanimous' consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment is as follows:
On page 9, line 15, after the period, add
the following:
Any person employed by, under contract
to, or under the direction of any department
or agency of the United States Government
who is either (a) actively engaged in hostili-
ties in any foreign country; or (b) advising
any regular or irregular military forces en-
gaged in hostilities in any foreign country
shall be deemed to be a member of the
Armed Forces of the United States for the
purposes of this Act.
UNANIMOUS-CONSENT AGREEMENT
Mr. ROBERT C. BYRD. Mr. President,
will the Senator yield to me for a unani-
mous-consent request?
Mr. EAGLETON. Mr. President, I yield
to the Senator from West Virginia.
Mr. ROBERT C. BYRD. Mr. President,
I have cleared this request with the dis-
tinguished manager of the bill, the Sena-
tor from Maine (Mr. MusxIE), the dis-
tinguished Senator from New York (Mr.
JAVITS), the distinguished majority
leader, and the distinguished author of
the bill.
I ask unanimous consent that the vote
on this amendment occur at 12 noon
today and that the vote which was pre-
viously scheduled on passage of the Dis-
trict of Columbia appropriations bill for
12 noon today now be scheduled for
12:15 p.m. In other words, they will be
back to back and the vote on the District
of Columbia appropriations bill will im-
mediately follow the vote on the Eagle-
ton amendment.
The PRESIDING OFFICER. Is there
objection? The Chair hears none, and it
is so ordered.
Mr. JAVITS. Mr. President, if the
Senator will yield, I do not want in any
way to rush the Senator. However, I won-
der if the Senator from Missouri could
perhaps tell us whether this is the final
amendment that he will be calling up.
Mr. EAGLETON. Mr. President, I have
one other amendment contemplated.
However, this is the last amendment that
I have that is of any great substance.
Mr. JAVITS. Mr. President, I thank
the Senator.
Mr. EAGLETON. Mr. President, the
bill before the Senate, S. 440, is entitled
"The War Powers Act." But according to
its preamble, S. 440 does not cover all of
the warmaking alternative available to
the President. It is intended only to
"make rules governing the use of the
Armed Forces of the United States."
The purpose of the amendment I pro-
pose today is to assure that the war
powers legislation passed by the Senate
is as all-inclusive as its title implies. My
amendment would circumscribe the Pres-
ident's use of American civilian com-
batants in the same manner uniformed
Armed Forces are circumscribed by S.
440 as presently drafted. It would, in
other words, prevent a President from
engaging American civilians, either di-
rectly or as advisers, in a hostile situa-
tion without the express consent of Con-
gress. It would also restrict the practice
of employing regular or irregular foreign
forces to engage in "proxy" wars to
achieve policy objectives never specifi-
cally approved by Congress.
If adopted, my amendment would
make S. 440 a comprehensive legislative
mechanism capable of dealing with each
of the options available to the Presi-
dent to involve our Nation in hostilities.
I would like to emphasize at the out-
set that I bear full responsibility for the
deficiency in S. 440 that I have just de-
scribed. My own war powers bill (S.J.
Res. 59) was also deficient in this respect
and the compromise bill introduced by
Senators JAVITS, STENNIS, and me, was
passed last year with my full support,
and it likewise contained no reference
to paramilitary forces. I am, therefore,
moving belatedly but with good cause,
to correct what I believe to be a major
loophole in S. 440.
A few weeks ago Director-designate
of the Central Intelligence Agency Wil-
liam E. Colby testified before the Sen-
ate Armed Services Committee with re-
spect to his pending nomination as Di-
rector of the CIA. One sentence used by
Mr. Colby in his testimony influenced me
more than any other to take the action
I am taking today to amend S. 440. In
explaining the CIA operation in Laos,
Mr. Colby said:
It was important that the U.S. not be
officially involved in the war.
Mr. President, I think that bears re-
peating. Mr. Colby pointed out to the
Armed Services Committee that in his
judgment it was important that the
United States not be officially involved
in the Laos war.
It was all right to be in the war, but
we should not be officially involved in the
war, and no one should know much
about it.
But, of course, the United States was
heavily involved in the war in Laos. We
must therefore, ask, why was it so im-
portant that the United States not be
officially involved? Was it because we
did not want the enemy to know? Or
was it because Presidents Kennedy,
Johnson, and Nixon did not want Con-
gress and the American people to know?
We know much more today about our
military involvement in Laos, thanks in
large part to the excellent work of my
distinguished senior colleague from Mis-
souri, Senator SYMINGTON, and we learn
more each day. Recent testimony before
the Armed Services Committee revealed
that we were bombing in Cambodia and
Laos long before such bombing was ac-
knowledged by the White House. And
how much more remains to be revealed
of our tragic involvement in Indochina?
I am deeply concerned that Mr. Colby's
statement would have even more appeal
to Presidents were the Senate to pass
this legislation without the pending
amendment. I fear that Presidents, de-
siring to pursue what they would ra-
tionalize to be limited policy objectives,
would be encouraged to avoid the proce-
dures established in S. 440 in favor of
covert operations-operations which
would assure that "the United States not
be officially involved."
The concept of this amendment is
really very simple-it is an attempt to
make the language of legislation match
the realities of war. To anyone engaged
in a combat operation, it is irrelevant
whether they are members of the Armed
Forces, military advisers, civilian ad-
visers, or hired mercenaries. The conse-
quences are the same-they can kill, and
they can be killed.
American involvement in hostilities
cannot be obscured by semantics. If we
become involved in combat to pursue a
policy objective other than the emer-
gency defense of the United States, its
forces or its citizens, then Congress
should authorize that involvement.
Either we are involved in hostilities or
we are not involved. And that should be
the operating principle of the War
Powers Act.
Our concern over the error of our in-
volvement in Indochina has led us to
carefully examine the origins of that ex-
perience. And it has not been easy to
find the beginning of that episode of
American history. '
There was no Pearl Harbor to signal
the beginning of the Vietnam war. There
was no major attack such as the attack
on Fort Sumter. There was no sinking of
the Maine. There was only a gradually
escalating involvement-an involvement
which grew out of a political commit-
ment and a mostly covert effort to ful-
fill that commitment.
We should have learned by now that
wars do not always begin with the dis-
patch of troops. They begin with more
subtle investments ... of dollars and ad-
visors and civilian personnel:
In the case of Laos, our involvement
began with a large group of CIA advisors
who organized indigenous Laotion forces
to engage in hostilities in pursuit of
policy objectives established by the exec-
utive branch of the U.S. Government.
Although the exact date remains clas-
sified, the CIA began to organize and
advise MGo tribesmen in Laos sometime
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prior to 1961. This advisory role con-
tinued after the 1962 accords which os-
tensibly reaffirmed the neutxnlity of Laos
and divided political control of that
country among the warring factions. In
testimony before the Symington Sub-
committee on U.S. Security Agreements
and Commitments Abroad, former Am-
bassador to Laos William SuDivan argued
that our clandestine involvement in the
Laotion hostilities was "to attempt to
preserve the substance of the 1962 agree-
ments."
It is not my intention today to ques-
tion the merits of the policy-Ambassador
Sullivan was attemptnig to justify by
his statement. I am simply advocating
that the President present his justifica-
tion to Congress, and that he request
specific statutory authorization before he
pursues a policy objective by means of
force.
The Indochina experience has shown
us the frightening potential of covert
American forces. It is now known that
an elaborate program of covert military
operations, under the code name Oper-
ation Plan 34A, was initiated by Presi-
dent Johnson in February, 1964, and
that that program may have led to what
was called a provocation strategy, or
a plan to provoke the enemy into provid-
ing a pretext for bombing North Viet-
nam.
Operation Plan 34A was implemented
in Laos as well as Vietnam.:'But in Laos
there was a slightly, different ingre-
dient-civilian pilots under contract to
the CIA-associated Air America partic-
ipated with the Royal Laotion Air Force
in an extensive air operation against the
Pathet Lao.
U.S. Air Force planes also began op-
erations over Laos in 1964, bjit they were
arriving on the scene more than 3 years
after the CIA had first introduced the
United States into that hostile situation.
Mr. President, there is a$ old saying
out in my part of the country that from
little acorns big oaks grow. The same
thing is true with respect to war: from
little involvements-little CIA wars-
big wars grow. That is why it is impor-
tant to consider carefully very aspect
of a measure labeled a "War Powers
Act."
What we are trying to do is refurbish
the process by which America goes to
war-trying to restructure it, so that it
is no longer the decision of dne man who
happens to occupy 1600 Pennsylvania
Avenue. And so that when Americans,
whether wearing a uniform or not, are
sent into hostile situations around the
world, Congress will have a part in the
decision. The purpose is to see that the
U.S. Congress, under its constitutional
mandate, will share and participate in
that decisionmaking process--the proc-
ess to determine how, where, and when
we go to war. That, in essence, Mr. Presi-
dent, is what S. 440 is all about.
To leave out of that measure the clan-
destine operationsthat a President may
wish to carry out by using CIA or civil-
ian personnel is to leave an enormous
loophole that, in my judgment, if this,
bill becomes law, will lead to heartaches
in years to come; because I think that
Presidential warmaking in the future
will beiconducted just through this loop-
hole. I' am not sure whether it will hap-
pen next month or next year, in Berlin
or in the Philippines.
Am ssador Sullivan is now about to
go tot a Philippines as our new Ambas-
sador there. After his warmaking expe-
rience in Laos, he may have an oppor-
tunity 1in yet another country torn by
internal strife to practice his talents.
And if! S. 440 becomes the law without
including the civilian as the combatant,
how many hundreds of people, on the
CIA payroll, bearing arms, engaging in
combaor advising in combat situations,
may ultimately go to the Philippines?
I hope none. I hope we never send
another American as a military adviser
into a civil war anywhere in the world.
But I am not confident that I can say
that here today. I am not confident that
even the bitter experience that we have
had in Vietnam, Cambodia, and Laos was
such as to prevent us from the future
exercise of folly.
The pitch may be made to whoever
is then the President of the United
States,, "Well, we cannot permit this
country to 'fall'; we cannot permit good
old Lon Nol to fall." We have to get rid
of his brother; we send him on a world
cruise, and we are about to send Lon Nol
himself on a sabbatical to the United
States.' I do not know how many people
have to be removed from Cambodia to
prevent that government from falling.
That is a curious way, I might say par-
enthetjcally, to prevent a government
from f ]ling, by ousting the government.
But that is diplomacy American style.
I and not so sure we have permanently
learned our lesson in Southeast Asia, and
unless ,we plug this loophole and unless
we treat all Americans in military situa-
tions alike, whether they are wearing a
green uniform, red-white-and-blue, or a
seersucker suit with arms-what payroll
you are on is really secondary; whether
you get it from the Pentagon or whether
you become. a member of the Armed
Forces, the end result is the same: Amer-
icans are exposed to the risk of war.
And as they are exposed to the risk of
war, the country, then makes a commit-
ment to war.
Remember well the word "commit-
ment." A few Americans are captured
and made prisoners of war in country x
in the world, whether called Sergeant
Jones or CIA Agent Jones. Then it be-
comes "a commitment" and the whole
bloody business starts again and again.
Mr. President, I do not wish to dwell
on the Indochina experience, but we
cannot ignore its lessons. We cannot ig-
nore the obvious implications of the cov-
ert activity in Indochina prior to the
Gulf of Tonkin Resolution. We cannot
ignore the possibility that Congress may
have been deliberately hoodwinked into
authorizingthe Vietnam war by a "prov-
ocation strategy" implemented in large
part by civilian combatants and advisers.
The potential for use of covert civilian
forces by a President to achieve military
objectives is presently restricted only by
the imagination of man. We have already
seen CIA personnel used as pilots and
combat adviser. And if we fail to pass
this amendment, we may see an even
20, 1973
more wide-ranging use of civilian com-
batants in lieu of uniformed personnel
whose activities will be circumscribed by
this bill, if it is enacted in, its present
form.
In drafting this amendment I have
taken care to avoid restricting the Intel-
ligence-gathering mission of the CIA
a necessary and proper function. in: most
cases U.S. Government personnel may
be required on occasion to accompany
foreign military forces to observe--heir
activities and report on them. My
amendment would not prohibit such
activity. It would only prohibit civilian
personnel from active involvement in
hostilities or from performing an ad-
visory function with forces engaged in
combat.
Mr. President, the principle I am advo-
cating today was expressed most elo-
quently by Senator SYMTNGTON when,
commenting on the secret war in Laos,
he said:
Under our form of government, no natter
what the nature of the enemy, without pub-
lic support no Administration should wage
a foreign war. To deny there is fighting is a
travesty, for not only the enemy but also
the American participants, including those
who are casualties ... know the truth.
Mr. President, the truth about ou^ 'in-
volvement in Indochina has only recently
been revealed to the American people.
And one aspect of that truth now ac-
knowledged is that many of the Anieri-
cans involved in Indochina were civi.ians
participating in covert paramiLtary
operations.
It is time for Congress to acknowledge
the vast potential available to the Presi-
dent to expand his warmaking op ;ions
beyond the scope we have thus fai en-
visioned for S. 440 if he decides to use
civilian combatants rather than military
combatants. It is time to acknowledge
that Presidents will be encouraged to use
these options if we fail to circumscribe
them.
That is why I urge my colleagues to
give the war powers bill before us today
the comprehensive character that will
make it worthy of its title by adoption
of the amendment which I have
introduced.
Mr. JAVITS. Mr. President, will the
Senator from Maine yield?
Mr. MUSKIE. I yield.
Mr. JAVITS. I suggest to the mar ager
of the bill that it might be well to sound
the quorum bell. This is, really, provably
the most important amendment tc the
pending bill that will be debated today,
so that perhaps we can agree to hE,ving
the time not charged to either side for
the quorum call, in order to let Senators
know what is actually going on.
Mr. MUSKIE. Mr. President, I ask
unanimous consent that I may suggest
the absence of a quorum with the time
not to be charged to either side.
The PRESIDING OFFICER (Mr.
ALLEN). Without objection, it i,i so
ordered.
Mr. MUSKIE. Mr. President, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The clerk
will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
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 July 20, 19, 7' pproved For Rt ARq ~41: C~# 7j5B~0700090010-9 S 14189
Mr. MUSKIE. Mr. President, I ask author of this bill, his views deserve par- Rather, the amendment goes to the
unanimous consent that the order for the ticular consideration and respect. I am causes of war and what brings them
quorum call be rescinded. in accord with his broader purpose in about, in an effort to abate those influ-
The PRESIDING OFFICER. Without proposing this amendment, but I dis- ences or to abort, in its infancy, a situa-
objection, it is so ordered. agree simply with his tactics in offering tion which may lead to war.
Mr. MUSKIE. I yield myself 5 minutes. it to this bill. That is the essence of my position.
Mr. President, I oppose, with some re- As for the amendment to the bill, I There are other points which are prac-
luctance, the amendment of the distin- should like to see the bill supported by tical in nature; but essentially I think
guished Senator from Missouri (Mr. the Senate today so strongly as to give the gift which we all brought to the bill
EAGLETON) to broaden the definition of pause to the President if he considers a was to keep it methodological. The fact
"Armed Forces" beyond the original veto. So I should like to see maximum is that if the Constitution had antici-
Intent of the war powers bill. support mobilized behind it for that rea- pated the situation as it has now devel-
Senator EAGLETON'S amendment would son, and preserve the bill as it is, rather oped, Presidents would not have done
bring under the provisions of this act- than to jeopardize it with a major change what they have done, in my judgment,
Any person employed by, under contract at this time. for almost 200 years. Congress would not
to, or under the direction of any department I yield to the distinguished Senator have permitted its war power to be eroded
or agency of the United States Government from New York (Mr. JAVITS) such time as and we would not have the situation that
who is either (a) actively engaged in hos- he may need. arose in the Vietnam war. With respect
tilities in any foreign country; or (b) advis- Mr. JAVITS. Mr. President, like the 'to the Gulf of Tonkin, in which Con-
ing any regular or irregular military forces distinguished manager of the bill (Mr. gress had joined, there was a dispute over
engaged in hostilities in any foreign coun-
try. MUSKIE), I have given most respectful the resolution whereby the President was
thought and attention to the amendment given a general power of attorney, as it
The purpose of this amendment-a which the Senator from Missouri (Mr. were, when the Congress thought it was
purpose which under other circumstances EAGLETON), one of the principal sponsors giving a limited, specific power of attor-
I would strongly support-is to give the and architects of the bill, has proposed. ney with respect to a particular Incident
Congress greater control over the para- ' I must oppose the amendment for the alone.
military activities of the Central Intel- reasons stated by the Senator from One big fallacy creeps into the argu-
ligencn_A=y. The secret war in Laos Maine (Mr. MUSKIE), which I endorse, ments of so many opponents, including
has been an instructive example for us and also for certain other reasons which the Senator from Arizona (Mr. GOLD-
all. The fundamental and original mis- are inherent in the problems raised by WATER). They have an idea thab the only
sion of the Central Intelligence Agency the amendment. way Congress can "declare war" is by
was to provide our Government with ade- I wish to recall to the Senate that this passing a "declaration of war" resolu-
quate intelligence to protect our Nation's bill has been properly put before the Sen- tion in both Houses of Congress some
security. ate previously and again now, not as dark and tragic afternoon which says,
This purpose has now been expanded changing this body's constitutional au- "We hereby declare war on Hitler's gov-
to include a range of dubious covert ac- thority, not, indeed, as changing substan- ernment." Not at all. There is no such
tivities up to and including the secret war tive law, but as a methodology in an area provision in the Constitution that so
in Laos. where no methodology has existed before, limits or specifies the power to declare
I believe it is urgent for Congress to and where, as has been argued, the war. We can exercise it any number of
review very carefully the role of the Cen- rough interplay of political forces is sup- ways, so long as we do so by law.
tral Intellgence Agency and to scrutinize posed to bring about some kind of rough These are reasons why it was neces-
the adequacy of existing legislation con- resolution of what was unforeseen in the -nary to define by methodology how we
cerning the QIA._ I am pleased, therefore, Constitution. I believe the best hope for should exercise our power and the Presi-
that Senator TENNIS has indicated that this legislation resides in keeping it as a dent should exercise his power. This has
the Armed Services Committee, which methodological bill, emerged as an unsettled question in the
has jurisdiction over the Central Intelli- The methodology of the bill Is of pro- twilight zone of the Constitution, which
gence Agency, will conduct a thorough found importance to our Nation; pro- we no longer wish to leave to the inter-
review of these matters. Questions as to cedure-or "due process"-is the bedrock play of political forces.
the proper role and function of the-IA of freedom and democracy. At the same However desirable the Eagleton
and where the line should be drawn be- time our methodology is "neutral" on the amendment may be on substantive, pol-
tween legitimate and illegitimate activi- substantive issues which are to be con- icy grounds, it is out of place in this bill.
ties are extremely important and deli- sidered and decided in terms of the "due The Armed Services Committee-and
cate-and they should be examined as process" we are establishing by this leg- here the Senator from Mississippi (Mr.
thoroughly as possible. I think we need islation. In effect, we are herein estab- STENNIS) is on impregnable ground be-
new legislation to define more strictly lishing that our Nation can be taken into cause the Committee on Armed Forces
CIA functions and to insure a sufficient war only through "due process." This is a does have jurisdiction-should take it up
congressional role in overseeing and con- major reform, in light of the experience as substantive legislation. If this amend-
trolling_ClA activities. of the last decade. It. is a major new pro- ment should become part of the war
Such a review should take place in ac- tection for our citizens, just as the pro- powers bill because the Senate thought it
cordance with the normal legislative pro- tection of "due process" is for them with desirable to go with the Eagleton amend-
cedures of the Senate. I do not believe it respect to criminal law, et cetera. Some ment, it would complicate the question
is appropriate to raise this matter on the of our colleagues wish to write in sub- of conference, as to putting together a
floor in connection with this particular stantive policy proscriptions on sensitive conference committee on the part of the
bill. The war powers bill has been in the issues-usually the still raw issues of the Senate which would be truly representa-
making for several years. All its provi- past decade. As much as I may, and do tive of those with the greatest expertise
sions have been thoroughly considered agree and sympathize on the substantive and the appropriate committee of au-
and debated in public hearings, in com- questions, they are not appropriate in a thority in the CIA field.
mittee, and on the floor of the Senate. bill which is establishing methodology, or The Senator from Missouri (Mr.
Broad Senate support for this bill- due process with regard to going to war. EAGLETON) has already won a consid-
across party and ideological lines-has Regretfully, because I happen to agree erable victory in that the Senator from
been built upon a delicate balance of in- with the Senator from Missouri and the Mississippi (Mr. STENNIS) said in his
terests and concerns. I do not think it is Senator from Maine, these arguments, letter that he is sympathetic to the thrust
wise at this late date to consider a major factual policies, and declarations, involy- of the Eagleton amendment; that he is
new provision to this bill which now ing what are called the continuum, in considering and the Committee on Armed
comes almost as an afterthought to sev- short, which little incidents lead to war, Services will work up some way to deal
eral years of intense deliberation. find no place in the bill, because this with CIA, based on the revelations we
The distinguished Senator from Mis- is a substantive question. It is not a mat- have haff The Eagleton amendment un-
souri has made an invaluable contribu- ter of establishing a method by whit doubtedly will have very high priority
tion to the writing of the war powers both Congress and the President may ex consideration, as it should.
bill from the beg * eOasciMO01M6/0* ; WiSBD RM7 @O9?O1 Mto the text of the
 Approved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9
S 14190 CONGRESSIONAL RECORD - SENATE July 20, 1973
Eagleton amendment, now we become
lawyers and take a look at it. Here again,
there are problems.
I would like to point out the defined
parameters of the Eagleton amendment:
Any person employed by, under contract
to, or under the direction of any department
or agency of the United States Government.
That could include almost anyone; it
is not confined to the CIA. Indeed, it is
difficult to say what thelIItrits of its cov-
erage may be. Later on, I will explore
whether it would cover foreign nationals,
and particularly foreign nationals who
may be covert intelligence agents of the
United States. For instance, would Colo-
nel Penkovsky, who was a member of the
Soviet military and who provided so
much key intelligence to the CIA right
out of the Kremlin, the Sovie e-neral
Staff, would he have been covered?
Lots of things lead to war. A man on
horseback may lead to war; national
hatred could lead to war; anything could
lead to war. We cannot deal with all those
subjects in this bill.
Another important consideration is
that there outside the Armed Forces,
was are covered by the bill, is no agency
of, the United States which has any ap-
preciable armed forces power, not even
the CIA. They might have some clandes-
tine ag'Mts with rifles and pistols engag-
ing in dirty tricks, but there is no capa-
bility of appreciable military action that
would amount to war. Even in the Lao-
tian war, the regular U.S. Armed Forces
had to be called in to give air support.
The minute combat air support is re-
quired you have the Armed Forces, and
the bill becomes operative. A key control
which would not be reached by this
amendment even if it could, would be
control of the use of money. The fact
is that vast sums of money were given to
Vang Pao in Laos to pay for mercenary
Moo army. The use of Air America, which
was a logistical operation, and not a
combat operation, presumably would not
be reached by the amendment along
Again, this is beyond the ambit of this
bill.
The matter was so eloquently and pre-
cisely put by the Senator from Maine
(Mr. Mussels) in what he said in respect
of the amendment. It simply does not fit
within this context, and considering the
historic nature and importance of the
context we should not burden it with
substantive questions which in addition
to all other points made are within
the jurisdiction of another legislative
standing committee, to wit, the Com-
mittee. on Armed Services; and where
we are not faced with any question of
avoiding the issue, but have the word o'f'
a man 'whose word rings as true around
here as that of any Senator of the United
States, and that is that he proposes to
deal with the question.
One other point which is interesting:
I, too, have talked with the Senator from
Mississippi (Mr. STENNIS) at length. He
was very relucant to make this expres-
o,nn nn +hi,, nnrtinnlnr nn,onAmant. hn-
that kind could and would be fully consid-
ered by the Committee at that time. I could
support some major points In that particular
amendment as a part of a bill on the subject,
but fully oppose the amendment presented
as a part of the War Powers Bill.
The bill now before the Senate, as finally
written and improved by the Foreign Rela-
tions Committee, is an excellent bill and is
confined to the Constitutional subject of ac-
tually committing the nation to war.
I believe this bill, if confined to its proper
subject matter will pass the Senate by a large
vote and will emerge from the Conference
Committee as a bill with meaning. There
are reports, which I hope are erroneous, that
a veto is in prospect if this bill passes. If
so, I feel so strongly that a meaningful bill
relating to the War Powers, and the, responsi-
bilities of the President and the Congress,
should be passed, and I would strongly urge
that that bill pass, the veto notwithstand-
ing. If we clutter the War Powers Bill with
other matters we would probably kill what
is otherise a good chance to override a pos-
sible veto.
Again, I certainly wish you well, and hope
the Committee bill in its present form can
uaubu liD 1011, 411141, 110 wall Urt1 11v +GC1- large vote.
ing here in the Senate that he was try- Most sincere yours,
ing to have his voice carry Senators JOHN C. STENNIS,
to debate and cross-examinawvn. But, I would agree that this is an extraor-
think the Senator from Maine (Mr. dinarly strong commitment from the
MusxIE), and I prevailed on him to feel Senator from Mississippi. To have an-
that as he had used his privilege very ticipated a veto, and to have indicated
sparingly and he had this bill so close to with such vigor his intention to press for
his heart, this was a measure in which an override, I think is the kind of action
that was deserved, and I am glad to say the Senator from Mississippi would
he acted accordingly. rarely take. It is because of his voice, and
Mr. MUSKIE. Mr. President, I yield that of the Senator from New York, and
myself 2 minutes. my own understanding of the forces that
Reference has been made to communi- went into putting this bill together, that
cation with the Senator from Mississippi I reluctantly oppose the amendment of
(Mr. STENNIS), and as the Senator from the distinguished Senator from Missouri.
New York (Mr. JAvrrs) has explained, Mr. EAGLETON. Mr. President, I yield
the Senator from Mississippi was very myself such time as I may consume.
reluctant to appear to be trying to in- I sat here and listened with deep inter-
fluence votes here when he could not est to the comments of both the Senator
participate personally. But we prevailed from Maine (Mr. MusxiE) and the Sen-
upon him, and I take the opportunity to ator from New York (Mr. JAVITS). They
read that letter into the RECORD: are both men of extraordinary capability
it was a key factor ilk CA involvement in JULY 19, 1973.
the secret war in Laos. lion. EDMUND S. Mussels,
Finally, one point of draftsmanship. M.S. Senate, _
It will be noted the amendment starts
out with the language, "Any person em-
ployed by." That includes a foreign per-
son, as well. There are many clandestine
agents who are foreign and employed by,
in the sense of being financed, main-
tained by, and directed by Department
of the U.S. Government, which is one of
the facts of life. Are they covered by
this bill? If they are clandestine agents
who are members of foreign armies does
this amendment apply? Suppose a mem-
ber of the Soviet or Chinese, or Vietcong
armies is a }CIA "controlled American
source," does this amendment apply if
his unit goes into hostilities?
Substantive law can determine what
activities can be engaged in with respect
to foreigners in terms of pay, and so
forth. Law can determine that, but it Is
hardly a methodology. You would be
dealing there with substantive ap-
proaches to the law. Shall the United
States employ foreign citizens for these
purposes? If It
how are they a s d61~ yg zaX~; a-r a o i~i:1M
DEAR ED: If I could be on the Floor, I
would support you fully as you push for the
passage of the War Powers Bill, as reported
by the Foreign Relations Committee, with-
out further amendments of any substance.
One amendment of substance is by the
Senator from Missouri, Mr. Eagleton, who
has done much work and has made a fine
contribution to this important bill as it now
stands. This amendment has a prohibition of
using the C.I.A., or its funds, in war activi-
ties of the type we have used in Laos. The
experience of the C.I.A. in Laos, as well as
more recent disclosures of matters here at
home have caused me to definitely conclude
that the entire C.I.A. Act should be fully
reviewed.
Accordingly, I already have in mind plans
for such a review of the C.I.A. Act by the
Senate Armed Services Committee and have
already started some staff work thereon. All
proposed changes, additions or deletions can
be fully developed and hearings held thereon
at that time. I have already completed, but
have not yet introduced some amendments
of my own. The proposal by the Senator
from Missouri. Mr. Eagleton, to explicitly
Eilkif
'and good will, and I suspect that deep
down in the inner recesses of their hearts
they know I am right. I think they would
like to vote for the Eagleton amendment.
In fact, I think they believe in it, because
what triggered the situation that we find
ourselves in today-what triggered the
war powers bill pending before this body
today-was not the fact that all of us
went, during the recess, to academia and
hibernated with professors. We did not
just sit there and read lots of constitu-
tional lawbooks, statutes, and what have
you. It was not because a lot of thought
had to be given to the methodology, to
use the word used by the Senator from
New York. But it was due to the fact that
for a decade we had been in an atrocious
nightmare in Southeast Asia.
This bill was not conceived in the
abstract, It was not conceived in the
ethereal. It was conceived in blood-
50,000 dead and the whole litany of what
occurred in Southeast Asia. That is why
we are debating this bill today-not be-
cause it is a prosaic idea, but because of
our recent tragic experience.
09ft has many facets-not
''ddff onkin in 1964, and not
 July 20, 1973 pproved For Release 2005/06/06 : CIA-RDP75B0038OR000700090010-9
CONGRESSIONAL RECORD - SENATE S 14191
only Cambodia, but one of the integral Presidential 'discretion so that civilians military personnel will be sent into south'
facets of our being involved in that oper- can fly, bomb, shoot, and what have you, Vietnam on "temporary duty" from Thailand.
ation in Southeast Asia was the fact that I think that we are asking for trouble. One indication of this is the announcement
we became clandestinely involved in that we are asking for a repeat of exactly that the U.S. military command will move
OPI Saigon to the remote Air Force base at
sector when we should not have been what we had sought to avoid by this legis-
H
already become overly Thailand. NKP is smaller and has fewer fa-
involved in a se- In Conclusion, Mr.'President, I would cilities than n other U.S. bases in Thailand,
cret, covert way, the war mushroomed like to read briefly from a piece pub- such as Udorn or U-Tapao. It has, however,
and we found we could not extricate lished in the May 1973 Harper's maga- served as a center for U.S. covert activities
ourselves from that nightmarish situa- zine by Fred Branfman, the author of for years. NKP functioned as a base for the
tion. Eventually 650,000 of our troops the book "Voices From the Plain of Jars." abortive electronic battlefield, for the "Blue
were involved and more than 50,000 of He is an acknowledged expert on Indo- Berets" of the Air Force Special Forces, and
them died. china and has considerable expertise in plane the unit th u used f for agent nsertiona prop lot
pz , piloe
So military activities will be carried that part of the world. rescue, and
on by civilian employees of the Pentagon, I will read two passages if I may. The Son Tay prison specialized operations llke the
cs osu from
because under the war powers bill noth- first one reads: Thailand tobe limited Were t the
g pport
ing prevents the Pentagon from hiring There has been an almost audible sigh of for South Vietnam, it is unlikely that NKP
or contracting with civilian 'employees, public relief since the signing of "The Agree- would have been chosen as the new U.S.
ex-military people perhaps, but people ment on Ending the War and Restoring the command post.
that are called civilians. Peace in Vietnam." True, everyone knows full Clearly the U.S. withdrawal has been such
They keep them in their seersuckers disengagement will be a slow and compli- that it does not compromise the capacity to
and keep them all over the world, just cated business, stretching through months direct and participate In covert war
and months. But the important thing seems operations.
as they did with the Royal Laotian air- to be that the United States has agreed to Mr. President, I do not vouch for every
craft for bombing in Laos. (1) a set of principles sweeping away the
The Senator from New York has said familiar justification for U.S. war in Indo- statement made in the Harp S article
that if they come into it with our com china; (2) a set of promises built around the as to the inaccuracy. Much of it it is specu-
bat troops, then S: 440 takes hold. But stipulation that the U.S. "will not continue lation.
in Laos it was 3 years of CIA war before its military involvement or intervene in the My prognostication and crystal ball
combat personnel came in. We were al- internal affairs of South Vietnam." At the gazing does not tell me that all things
ready committed. They nod their own very least, we accept the idea that the Paris will not be all right in the Philippines.
ready
bat personnel there. They had their agreement marks progress; from there, we However, when we are preparing a piece
may be inclined to assume that Vietnam will of legislation that determines under what
own civilians flying aircraft for 3 years begin receding into it limbo where American
before the U.S. Air Force became involved involvement is nonexistent. circumstances we go to war-the most in it. That would have all occurred be- The evidence paints a contradictory plc- terrible decision that a free country or
fore S. 440 would take hold. By then we ture. It shows, instead, that we are "progress- any country should make-we should at
are deeply committed. ing back" to the kind of covert warfare prac- the time we vote on that piece of legis-
My capabilities with definitions are ticed in Vietnam during the late Fifties and lation know what it contains. And it
meager indeed, but "commitments" have ously contain , and in an eIn the Laos m al- should not contain an
,would be lit a
come to haunt us. After Americans are Paris agreement was signed, there has been loophole, that if exploited, would be liter-
on the ground, advising; directing, and a steadily growing record of press reports, ally a mile wide.
masterminding, and running the whole public statements by Administration officials, It is not good enough to say that we
military operation, just because they do and budget allocations that, taken together, should not rock the boat. Lots of Sena-
not have on their "U.S. Army" uniforms, . point to resumption of a covert war, leaving tors have agreed on this draft of the bill.
Let us suppose they just use the wrrd us poised only half a step away from a re- There is nothing sacred about any piece
newed
"U.S." Strike the word "Army." Strip ch
ina. No piece of evidence isnconcl save in of legislation that comes to this floor. It
that from the regalia. So they wear some itself, but the overall pattern is distinct, not Holy Scripture. It is Legislation not is draf by wrten
fatigues and are paid by the CIA, or in- Here's the way I see the logic of the situa- divine man hncof fghis it ted
deed the Agriculture Department, as the tion, based on newspaper reports, Congres- A man all wisdom his imperfections.
s bit bltedSenator-has said my amendment would sional testimony, official documents, and my And sometimes is a bit belated.
cover such a possibility. Any department own four years' experience watching the This loophole so far as the CIA is con-
of the Government could be the sponsor "secret war" in Laos. corned came about because we are still
of covert activity. Mr. Branfman goes on to say: learning more about the war in Laos. I
Let me move on. The Senator from PERSONNEL FOR A COVERT WAR have not learned enough. Mr. Colby's
New York talks about a methodology to Since April 1, 1973 when U.S. forces were testimony before the Armed Services
control war. What we are really talking formally withdrawn, American personnel in Committee the other day brought this
about in this bill is hostilities. That Is Vietnam have done essentially what the sol- matter to my attention in terms I simply
tabout
key- in 440. word bill S. ho How do we get diers did before them. They are under con- could not ignore.
the h them? How do we avoid them? Who tract to the Department of Defense, the State However belated the legislative process
participates, and under what circum- Agency, performing chiefly military andip rag may be, when an amendment is offered
stances? That is what the bill is all military tasks. ought
especially if it considered top fug what is is,
about. _ Many advisers to the South Vietnamese and especally si is plug op what I
This amendment is designed to pre- Air Force and Army are technically civilians, consider to be a significant loophole.
vent all American combatants from get- it is true. But almost all have been members We will have a war powers bill, and it
ting involved in hostilities In a foreign of the U.S. Armed Forces, and many were will pass by a substantial vote. It may
country without tho consent of Con rats. recruited directly' from the U.S. Air Force or may not be signed by the President. g y i ho eahe c neat of tht I do or Army. We are not here to write labels on a
I sal tr in my no kndw what the eroublesome areas Of There have also been Indications that some document. What does the bill cover, or
active-duty US. military the world will be in the future. But we nouthVietnam disgisedrasn civilians. A what what thisdoes it leaveves uncov? ed, of now,
still have some left. The situation ill November 29 Los Angeles Times dispatch overed is the
Southeast Asia is by no means resolved. from Saigon, for example, noted; very means, bill leaves unc the very methodology, the
We will have our new Ambassador go- While manyof the new experts or techni- very mechanism by which we first en-
ing one of these days to Manila, a noun- cians (or advisers) will be wearing civilian twined ourselves in Southeast Asia. This
try whe they days some problems of sportshirts, the suspicion is strong that un- is the kind of loophole that under no
try eere t and a stmee. derneath they will have dogtags, or at least circumstances should be permitted to re-
retirement papers ... One staff officer, already main in a bill such as this.
With his expertise, perhaps Ambassa- spamin thatlian cl thes much of the time, Our memories are sharp enough at this
dor Sullivan will get us involved in the the ggest change n his office
Philippines, if he has a mind to. He has will be the removal of some awards and mil- point in time, in 1973, to remember the
experience iri that area. itary knickknacks, including a . mounted antecedent origin of our beginnings in
AK-47 rifle, which would not fit his "new" Southeast Asia. I think we should act now
If we pass this bill and leave this gap- identity. to assure that such a tragedy cannot
ing loophole of uncontrolled, unilateral It is also quite possible that active-duty recur.
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CONGRESSIONAL RECORD - SENATE
nection with past practices as to why
it should not be done.
I must say that the prospect of the
bill being vetoed, as an argument that
we should not strengthen it, does not
appeal to me. I cannot imagine any
President vetoing this bill and taking the
risk of being judged after the fact as to
whether he exercised proper judgment
about it. I shall discuss that at a later
date. Out I think there is very little
prospect that this bill as reported by the
committee would be vetoed, because I
cannot ' imagine why the President
would Veto it. If we put in something like
the Eagleton amendment, to give it some
teeth, it is true that it might be vetoed,
but I think it might then be overriden,
and it would be worth overriding the
veto.
Of course, no President is going to like
the slightest restriction upon his corn-
plete freedom of action to do anything
in the military field or in the domestic
field. they do not want any restriction
even, as evidenced in the last election, on
how they go about reelecting themselves.
That goes even so far as ignoring the
Mr. FULBRIGHT.
the Senator yield?
Mr. EAGLETON. I yield,
Mr. FULBRIGHT. Mr. President, I
support the amendment of the Senator
from Missouri. It seems to me that this
is a very essential part of this overall
legislation, simply because of our recent
experience in Laos.
The Menfbers of the Senate will recall
that the CIA undertook to create and
did create its own advisors and directors
and army that I think at one point
reached about 36,000 men, in the neigh-
borhood of 30,000 to 36,000 men. That
fact was carefully kept from the Con-
gress and from the public. There is an
informal committee of the Senate that
is supposed to have informal, supervision
of the CIA. No attempt has been made
to create a formal committee or a joint
committee of the Congress.
Former Senator McCarthy of Minne-
sota and others tried that, as did the
majority leader, but we were defeated
in those efforts by the powers of the Mili-
tary Establishment, and it was rejected.
The CIA Committee, the so-called
committee that exists, has not met, I be-
lieve, in 2 years. I have, as all of us do,
the greatest respect and affection for the
Senator from Mississippi (Mr. STENNIS),
and no one questions his sincerity and
his devotion to the defense of the United
States, but the facts are that this CIA
army was created and paid for without
the knowledge of the Senate generally,
or Congress generally. There may have
been one or two members of the CIA
Committee who knew about it. That has
never been clear. As I recall, the late
Senator from Louisiana, Mr. Ellender,
was reluctant to discuss the matter as to
how much he knew about the operation
in Laos.
So the Senator from Missouri is en-
tirely correct in using that as a recent
example of what could be done, and what
could also be repeated in the Philip-
pines. That was the principal reason the
question was raised about the suitability
of Mr. Sullivan. The reason for the ac-
tion on Mr. Godley has been grossly dis-
torted. It had nothing to do with retribu-
tion or punishment, or anything else. It
was the experience in Laos, the tech-
nique and the devotion which both of
these gentlemen had developed for that
operation, as evidenced by their actions
and within the personal knowledge of
members of the committee; and we sim-
ply thought it was not proper to put men
into positions of policymaking, in par-
ticular, who might be inclined to feel
that this was an appropriate and effec-
tive way to deal with situations such as
have developed in the Philippines, which
are not unlike those which developed in
Vietnam.
I think this is a particularly pertinent
issue that the Senator from Missouri
raises, because otherwise. any future
President can end-run the law and use
the CIA in this fashion. So I am sorry
that there are those who are opposed to
asserting the role- of Congress in this
kind of activity. It is a curious thing:
every time an effort is made to assert
the role of Congress in such matters,
there are always reasons raised in con-
criminal laws already on the statute
books. They would also ignore this bill,
perhaps, but we have to legislate on the
assumption that the President will abide
by the,law. That is the approach we take.
But if 'the law has no restrictions upon
his freedom of action, there is no reason
for hirti to veto it
This'bill has some good points in it, and
I was extremely reluctant to vote
"present" in the committee, because I
could not endorse it, particularly section
3, which I shall discuss later. But I sub-
mit that the provision offered by the Sen-
ator from Missouri, in itself and on its
own fleet, is well worthwhile. If it is
rejected here, as I anticipate from the
attitude of the sponsors, who have now
lined up a majority of the Senate-and
there are only four Members present to
hear the debate-I see no particular
reason why those who are committed
will not vote for it with no knowledge of
the Eagleton amendment or any other
amendment. So I assume the die is cast
as far as the outcome in the Senate is
concerned.
I was very much in favor, as indeed
everyone is, of the announced objective
of this legislation, which is to restrict
the untrammeled power of the Executive
to take this country into war. I am
bound to say that I do not believe legis- preventing anyone knowing what the
lation can control these things abso- CIA does, what it spends, and how it op-
lutely. It is just the best we can do. If erates. We find these things out long
a President is inclined to deceive the after the fact, after they have happened.
Congress, as I believe the late President We found that out about Guatema a. We
Johnson was in the Gulf of Tonkin mat- did not find out about Laos until it had
ter, he can hornswoggle and hoodwink been going on for 2 or 3 years. After
Cong~'ess, and cause us to take actions awhile these things come out, only after
which serve his purposes, which we would the damage has been done after the
not do if we knew the truth. That is the commitments, the loss of life, the ex-
type j of thing that no legislation can penditure of money has taken effect. So
meet'. We all supported a bill to limit the if we are to have any, power, any in-
power of the President to take us into fluence upon this type of activity, the
war on his own initiative, without con- amendment of the Senator from Missouri
sultation with Congress, but then there (Mr. EACLETON) should be adoited. I
developed a question of opinion as to the congratulate him on offering it.
need. The difference is not only as to ob- it is unpleasant to do anything that
jective-we all agree with the objective- disturbs the status quo in the field of in-
but there are honest, legitimate differ- telligence or military affairs. That has
ences of opinion as to the effectiveness
of the means here provided.
Some of the provisions in the bill are
good ones, and some, I think, can be im-
proved. I would hope to help to improve
them during the course of action k ere
on the floor and in the conference.
But I congratulate the Senator from
Missouri. He is certainly making an
honest effort to give some substance to
this legislation. One of the most glaring
gaps in the power of Congress to control
our own destiny is the enormous devel-
opment of the power of the intelligence
agencies, in this instance the CIA. Of
course, it would apply not only to the
CIA, but to the NSA or the DOD or any
other agency of that sort. Under the
general terms of the amendment of the
Senator from Missouri, it would apply
to any of those agencies that undertook
to covertly engage us in another war on
any massive scale such as is here in-
volved. So I shall certainly support it.
I regret very much that the Senator
from Mississippi, whom we all respect
so much, has from his sick bed sent a
letter to discourage this very mild but
very significant move toward the reas-
sertion of some congressional control in
this area. I again only remind the ~3en-
ate that on two or three occasions aen-
ators-I know the Senator from M!Ion-
tana, the distinguished majority leader,
on one occasion, or maybe both, has
taken a very strong part, as Senator
McCarthy did, and I did my best with
several others. We even had an execu-
tive session of the Senate to discus3 the
matter, and a genuine effort was made to
create a committee somewhat like the
Joint Atomic Energy Committee to give
supervision to the intelligence agencies;
and I think, as I look back upon it, it
was a great mistake that we did not do
that.
We did not do it simply because the
same officers and the same people who
now oppose this objective were success-
ful in mustering enough votes to hill it.
But I think it clearly appears to have
been a great mistake not to have done it,
because, as to this question of super-
vision, there just is not any. As to the
existing informal committee, I believe it
is 2 years or approximately 2 years since
it has met. That committee serves not
to supervise or inform the Senate about
its activities; it serves to protect the CIA
from inquiring eyes, be they in the Senate
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July 20, 1973 CONGRESSIONAL RECORD -SENATE
been true for 20 years, and I suppose
it will be true for another 20 years until
Congress Itself has enough courage and
enough votes, I may say, in the final
aflalysis, to undertake some responsi-
bility in this area. So that I think what
the Senator from Missouri has done is
to render a great service, regardless of
what the outcome will be.
Mr. EAGLETON. Mr. President, I most
sincerely thank the distinguished Sen-
ator from Arkansas for his presentation
and for his laudatory remarks. Naturally,
it goes without saying that there is a
great deal of wisdom and substance in
his remarks.
Mr. President, I am prepared at this
time to consider yielding back the re-
mainder of my time.
Mr. MUSKIE. Mr. President, I should
like to take a few minutes to respond, if
I may, and I yield myself 5 minutes for
that purpose.
The PRESIDING 'OFFICER (Mr.
BIDEN). The Senator from Maine is rec-
ognized for 5 minutes.
Mr. MUSKIE. Mr. President, I have
listened to the distinguished Senator
from Missouri (Mr. EAGLETON) and the
distinguished Senator from Arkansas
(Mr. FULBRIGHT). I disagree with very
little they have said. They have stated
the basic policy issue which is addressed
by the Eagleton amendment. The Sen-
ator from Missouri was kind enough to
suggest that deep down in my heart I be-
lieve he Is right. That is correct, He was
kind enough to suggest that deep down in
my heart I would like to vote for his
amendment. I would, but at the right
place, at the right time, and on the right
piece of legislation.
I disagree with the distinguished Sen-
ator from Arkansas, the chairman of the
Committee on Foreign Relations, in his
comment that those of us who oppose the
Eagleton amendment resist the estab-
lishment of an appropriate congression-
al role in controlling the CIA.
In my statement I indicated earlier
this morning that. my concern was at
least as urgent as that of the Senator
from Missouri. I agree with the Senator
from Missouri that this legislation was
conceived in blood. But our problem is
how, and when, and by what means do we
bring the loose ends together in the pub-
lic policy field that led us to this tragedy?
The suggestion that we can, somehow,
wrap them all up in one legislative pack-
age and enact it, without any doubts of
a Presidential veto or our ability to over-
ride it, is simply unrealistic.
I have sat in this body for the past 9
years and .watched Senators FULBRIGHT,
McGovERN, HATFIELD, MANSFIELD, and so
many other Senators trying to get a legis-
lative handle on the problem so that
Congress could end the war, only to see
effort after effort end in frustration.
Mr. President, it is a matter of tactical
judgment as to whether we can load this
bill 'with that much more and still have
it "fly." Of course, it is a matter of
judgment. But that should not divert us
into a debate over who is for what. It is
a matter of tactical judgment.
The Senator from Arkansas suggested
that it is inappropriate to consider what
is legislatively achievable. That is a dif-
ferent kind of argument from the one I
heard in the Committee on Foreign Re-
lations a couple of weeks ago in connec-
tion with the Cambodian compromise.
Everyone except the distinguished ma-
jority leader and myself voted for that
one, because, they said, "This is what is
achievable."
The Senator from Missouri did not vote
for this compromise on the floor, and I
did not vote for it on the floor, because
we both thought more was achievable.
That did not mean either side was purer
than the other, but it did involve con-
sideration of the tactical question of
what is achievable.
I happen to think that the war powers
bill in its present form is of sufficient im.
portance to reestablish the balance be-
tween the President and Congress, so
that if it becomes law we will have
achieved something important. I should
like to achieve that. I think that to over-
load it, whether by this or some other
amendment, is to risk the possibility of
not having that achievement.
That is my tactical judgment. it could
be wrong. But that is my reason. I think
It stands up. My footnote is Senator
FULBRIGHT's own reasoning in connection
with the Cambodian compromise-that
is, to work for what was achievable, and
I honor him for it. He may be right.
Mr. FULBRIGHT. Mr. President, will
the Senator from Maine yield?
Mr. MUSKIE. I yield.
Mr. ? FULBRIGHT. In that case, we
already had a veto. There was no specu-
lation about it. We had a veto. There was
little doubt in our minds that we would
have another. You have not had the veto
on this. I do not know whether you will
or not. I cannot imagine why the Presi-
dent would veto this Senate bill if we
passed it.
Mr. MUSKIE. May I say to the Sen-
ator from Arkansas that the distin-
guished Senator from Arizona (Mr.
GOLDWATER), earlier this morning, ex-
pressed complete confidence that the
President would veto it. The distin-
guished majority whip, the Senator from
Michigan (Mr. GRIFFIN), told me off
the floor yesterday that he expected a
veto.
May I say further, in response to the
Senator's point, that the veto in the case
of the Cambodian matter had come close
to the end of the fiscal year, and we were
coming closer. It was my own "gut" feel-
ing, after 9 years, that we had painted
the President into a corner and that it
was worth another test. It was worth
another test to see whether we could get
the 18 additional votes in the House
which would be necessary to reverse the
override decision on the first veto. That
was my judgment. The Senator dis-
agreed. But you certainly demonstrated
with your position on this issue that the
tactical question of what was achievable
is a legitimate one.
Mr. FULBRIGHT. I do not deny that
at all.
Mr. MUSKIE. But you denigrated It
earlier, and I am trying to raise it to
the proper level of serious legislative con-
sideration.
S,14193
Mr. FULBRIGHT. I would think the
merit of the amendment of the Senator
from Missouri, if it is put In, is suffi-
ciently great. to make this piece of leg-
islation significant. It would give it a
much greater chance of overriding a veto
than a measure which has really no very
serious effect on the President's power.
The PRESIDING OFFICER (Mr.
BIDEN). The 5 minutes the Senator from
Maine granted himself has expired.
Mr. MUSKIE. Mr. President, I yield
myself 2 additional minutes.
The PRESIDING OFFICER. The Sen-
ator from Maine is recognized for 2 ad-
ditional minutes.
Mr. FULBRIGHT, Mr. President, if the
President is foolish enough to veto it,
then I do not know why anyone should
be too disturbed about overriding it. But
if the bill has strength to it, as would be
given to it by the amendment of the Sen-
ator from Missouri, I would certainly
be in favor of overriding a veto.
Mr. MUSKIE. So the Senator acknowl-
edges the importance of tactical judg-
ment which he is now adding to his argu-
ment in favor of the Eagleton amend-
ment.
Mr. FULBRIGHT. I never meant to
deny the tactical. It is just, in this par-
ticular situation, that you are speaking
of the generality. I admit to the tactical
importance of this particular situation.
This Is not similar to what we had in
the case of Cambodia in the way of a
veto. We have not had one yet. If you
hate a veto and you think this is worth-
while to override the veto, we can meet
the question as to whether we weaken or
strengthen it, or leave out various parts
of it. That has always been acceptable.
If I gave the Senator the Impression
that the tactical consideration of this
question was not significant, then I
withdraw it or I misspoke myself, I have
for 30 years, engaged in measures which
have had that as part of consideration.
It is foolish to pass any legislation that
we know is going nowhere unless it is an
educational matter and we are trying to
inform people and it is necessary that it
be passed. That is done sometimes. But
this is part of legislation. It has been
passed. It is not that kind of legislation
at all.
I did not mean to give that impres-
sion. I certainly do not mean to give the
impression that the Senator from Maine
is not as entitled to his judgment as I
am. In debate, every now and then, it
is the nature of debate that differences of
opinion crop up. I do not pretend to know
any more about it than the Senator from
Maine. He is a very distinguished former
candidate for the Presidency. That gives
him an elevation and a prestige far be-
yond an ordinary Senator. So I would not
mean to insinuate that he is not entitled
to his views.
I withdraw or I modify any statement
I made that reflected upon the sincerity
and good faith of the Senator from
Maine in taking the position he does. _I
was only trying, in a clumsy way, to
make an argument in support of the
Senator from Missouri's amendment.
Mr. MUSKIE. I think the Senator and
I understand each other. I simply want
the record to reflect that what separates
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the Senator from Missouri and the Sena-
tor from Arkansas from theS Senator
from New York and myself is the tactical
question of whether it is wile to load
this much more on the bill.
Mr. JAVTI'S. On the veto question, I do
not think we are left in any doubt about
that. The minority leader of the House
read to the House on Wednesday the
President's declaration, in Which the
President said:
I am unalterably opposed tar and must
veto any bill containing the dangerous and
unconstitutional restrictions found in sec-
tion 4(b) and 4(c) of this bill. -
Those are the key sections which re-
late to the 120 days-as contrasted with
our 30 days-and the question-of a sooner
enactment by the House of a -concurrent
resolution shortening the time.
It seems to me that the arginnent made
by the Senator from Maine, the manager
of the bill, is entirely appropriate, in
view of the fact that-and Senator STEN-
N1s' views on this are critically im-
portant-we do want to mus*er the max-
imum support for a bill the thrust of
which is methodology rather than the
causes of war.
Mr. FULBRIGHT. Mr. President, will
the Senator yield?
Mr. JAVITS. I yield.
Mr. FULBRIGHT. I was, only saying
that those comments were directed at
the House bill, not at this bill, and at
two provisions which are not in this bill
and which are restrictive. 'So I do not
see that that is relevant to the discus=
sion of this particular bill.
Mr. JAVITS. At the very least, It in-
dicates that the President is unalterably
against some basic policy and principle
which is contained in this', bill, as it Is
in the House bill.
Mr. FULBRIGHT. I am bound to say
that this President would be opposed to
any bill with the slightest restriction on
his complete freedom of action to do as
he pleases.
Mr. JAVITS. Then, we agree. That
does not denigrate from the fact that we
say there is a real danger of a veto.
I say this as the author of this bill,
with the great aid of Senator EAGLETON,
Senator STENNIS, and other Senators in
the fashioning which was done in the
Committee on Foreign Relations. The
purpose and intent I had was to arrive
at a procedure on the major question of
war, and I thought if we could accom-
plish that, we would have leashed what
the Founding Fathers called the Dogs of
War. I thought that was what I was
doing.
The causes of war are many. If we are
going to try to follow all those things,
we will be chasing lots of rabbit tracks.
I agree as to the CIA, but I think that if
we try to crank it. into this situation, the
fundamental thrust of the bill, its funda-
mental impact, could be lost.
One thing on which I should like to
take issue with my esteremed chairman
with whom I work so closely, is that this,
is a critically important bill without the
CIA amendment. It is an historic break
with the past. At long last, we will say
how this must be done. All I say is that
now, today, there is nothing the Presi-
dent has to look at whirl tells him what
to do. He: has freedom of action, unless
we stop him, and we have to find a way to
stop him that is agreeable to a majority
of the Members of Congress or to two-
thirds oftthe Members.
Mr. MANSFIELD. Mr. President, I ask:
for the yeas and nays on the pending
amendment.
The yeas and nays were ordered.
Mr. EAGLETON. Mr. President, it is
my understanding, pursuant to the previ-
ous order, that the vote on this amend-
ment will occur at 12 noon sharp and that
a vote will occur at 12:15 p.m. on the
District of Columbia Appropriations bill.
The PRESIDING OFFICER. The Sen-
ator is correct.
Mr. E,AGLETON. I yield back the re-
mainder,' of my time.
Mr. MUSKIE. I yield back the re-
mainder of my time.
The PRESIDING OFFICER. Who
yields time on the bill?
AMENDMENT NO. 361
Mr. FUL,BRIGHT. Mr. President, I call
up my amendment No. 381.
The PRESIDING OFFICER. The
amendment will be stated.
The legislative clerk proceeded to read
the amendment.
Mr. FULBRIGHT. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER, Without
objection, it is so ordered; and, without
objection, the amendment will be printed
in the RECORD,
The amendment is as follows:
On page 8, between lines 20 and 21, insert
the following:
"TROOP LOCATION AND DEPLOYMENT
"SEC: 8. (a) The President shall provide,
under! appropriate injunctions of secrecy to
be removed upon due notice from the Presi-
dent, to the Committees on Foreign Relations
and Armed Services of the Senate, the Com-
mittees on Foreign affairs and Armed Serv-
ices of the House of Representatives, and the
Joint Committee on Atomic Energy the
following :
"(1) not later than the fifth day of every
month, a comprehensive listing of all Armed
Forces of the United States by geographical
location as of the last day of the preceding
month with notations as to reasons for
changes from the report for the immediately
preceding month: and
"(2) immediate notification and explana-
tion of the issuance of any order to deploy
any major unit of the Armed Forces of the
United States from within the United States
or the surrounding waters to any other geo-
graphical location of the world from one
geographical location of the worldto another
in any case in which-
"(A) the movement results in an increased
preseGnce of such Armed Forces In the region
to which the unit is deployed for a period in
excess of three days; or
"(B) such Armed Forces are in combat-
ready status.
"(b) The congress may restrict or prohibit
by concurrent resolution, any deployment of
such major unit referred to in subsection
(a)!(2) of this section. In such event, the
President shall, within thirty days, terminate
such deployment and transfer any part of
such Armed Forces already so deployed to the
plate from which they were deployed or to
the United States, its territories and
possessions.
"(c) The provisions of this section shall
not apply when an authorization of hostilities
by'Congress is in effect.
"(d) For purposes of this section, 'major
unit of the Armed Forces of the United
States' means-
"(1) at least a squadron of aircraft ox
its equivalent;
"(2) any two or more major combatant
boats or vessels (other than ballistic missile
submarines) ; or
"(3) at least a brigade of troops or Its
equivalent.".
On page 8, line 22, strike out "SEC. 8" and
insert in lieu thereof "SEC. 9".
On page 9, line 4, strike out "SEC. 9" and
insert in lieu thereof "SEC. 10".
Mr. FU4.RIGHT. Mr. President, how
much time do I have?
The PRESIDING OFFICER. One hour
on the amendment-30 minutes to a
side.
Mr. FULBRIGHT. I yield myself such
time as I may require.
Mr. President, a most important prob-
lem, closely related to the war powers,
is the question of authority to deploy the
Armed Forces outside of the United
States in the absence of hostilities or the
imminent threat of hostilities. In the sec-
tion of the committee report on S. 440
entitled "Explanation of the bill," it is
stated that:
This legislation would not inhibit the
President's capacity to deploy the A:.-Ined
Forces, that is, to move elements of the fleet
in international waters.
Prof. Raoul Berger commented in his
testimony before the Foreign Relations
Committee on war powers:
Unless Congress establishes control over
deployment by statute requiring Congres-
sional authorization, the President will m the
future as in the past station the armed
forces in hot spots that invite attar, for
example, the destroyer Maddox in the Ton-
kin Gulf. Once such an attack occurs, retalia-
tion becomes almost impossible to res'st.
In other words, that Tonkin Gulf in-
cident was a classic case of provocation
on our part of an attack which estab-
lished what they alleged to be a cause for
going to war-at least, a cause iii that
case to request the resolution from Con-
gress.
I am reminded in this connection of a
memorandum written in 1968 by Gen-
eral Wheeler, then Chairman of the Joint
Chiefs of Staff, regarding the deploy-
ment of American forces in Spain in the
absence of a security treaty:
By the presence of the United States forces
in Spain the United states gives Spain a far
more visible and credible security gt arantee
than any written document.
Both experience and logic show that,
to the extent the President controls de-
ployment of the Armed Forces, he also
has the de facto power of initiating war.
It seems appropriate, therefore, indeed
urgent, to affirm by law the authority of
Congress as provided in the Constitution,
to regulate the deployment of the Armed
Forces in the absence of hostilities or
their Imminent threat. Such authority
derives directly from the Constitution,
which specifies Congress' pc wer to
"make rules for the Government and
regulation of the land and naval forces."
In addition, the general power of appro-
priation necessarily carries with it the
power to specify how appropriated mon-
eys shall and shall not be spent. More-
over, the authority of Congress to regu-
late the deployment of th?! Armed
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Forces in peacetime is scarcely separable
from the war power itself, inasmuch as
the power to deploy the Armed Forces
is also the power to precipitate hostilities
or-to take the language of the war
powers-to create "situations where im-
minent involvement in hostilities is clear-
ly indicated. * * *" In the words of a
Congressional Research Service memo-
randum on the subject, dated May 24,
1973,
Almost every substantive aspect of the
armed forces is an appropriate subject for
regulation by the Congress; and, since the
President is entirely dependent on the Con-
gress for the forces he commands, it follows
that Congress can control, directly or in-
directly, the objectives for which these forces
are used, at least during times of peace.
The Congressional Research Service
memorandum also points out other areas
in which the Congress has a constitution-
al responsibility to exercise control over
deployment of U.S. forces overseas.
The amendment that I am offering
today would serve three important pur-
poses. First, it would require that the
executive branch give the Congress, on a
regular and continuing basis, detailed in-
formation on the peacetime deployment
of U.S. forces. Second, it would require
the President in peacetime immediately
to notify and explain to the Congress
"the issuance of any order to deploy any
major unit of the Armed Forces of the
United States from within the United
States of the surrounding waters to any
other geographical location of the world
or from one geographical location of
the world to another in any case in
which-the movement results in an in-
creased presence of such Armed Forces in
the region to which the unit is deployed
for a period in excess of 3 days, or-such
Armed Forces are in a combat-ready
status." Third, the amendment would
give Congress power to restrict or pro-
hibit by concurrent resolution the peace-
time deployment of major units. If Con-
gress so restricts or prohibits the Pres-
ident, he would be required within 30
days to terminate the deployment and
return the deployed forces to their prior
location or to the United States, its ter-
ritories, and possessions.
The reporting the amendment calls
for would not require additional activity
on the part of the executive branch.
Such classified reports are already pre-
pared regularly by the Defense Depart-
ment and provided to congressional com-
mittees on an irregular schedule. As
specified in the amendment, the com-
mittees receiving the required reports
would be bound to respect the appro-
priate injunctions of secrecy.
The amendment would not pertain
when an authorization of hostilities by
Congress is in effect. Thus, the provisions
would not be applicable in circumstances
otherwise covered in the war powers bill.
Essentially, , this amendment would be
applicable to peacetime deployments and
would allow the Congress to exercise its
legal controls over the Armed Forces dur-
ing periods in which the, forces are not
engaged in hostilities.
There are a number of exclusions from
the reporting requirement in order to
allow the executive branch necessary
flexibility and latitude.
Major units as defined in my amend-
ment would be a squad of aircraft, two
or more major combatant vessels, or at
least a brigade of troops. Movements of
ballistic missile submarines would not be
required to be reported under this sec-
tion, nor would those of individual boats
or vessels. I believe that the sizes of the
units covered are such as to preclude
unnecessary reporting by the executive
branch.
The amendment would allow the Pres-
ident to transfer individual members of
the Armed Forces administratively and
to relocate elements of the Armed Forces
to accomplish one-for-one replacement
without notification. These changes
would, of course, be reflected in the
monthly reports. The requirement of im-
mediate notification and explanation
would come into force in the event of sig-
nificant changes in our worldwide force
deployments.
Mr. President, I believe this amend-
ment is so clearly in pursuance df the ex-
plicit constitutional authority given to
Congress to regulate the Armed Forces
that there is no question about that
aspect.
Again, however, I suppose that any
President, as he has become accustomed
to untrammeled power, might feel that
he has the freedom to do as he pleases
and to treat this as no restriction on his
power.
Mr. GRIFFIN. Mr. President, will the
chairman permit me to ask him a ques-
tion which goes to the point he has just
made?
Mr. FULBRIGHT. Certainly.
Mr. GRIFFIN. As I understand the
amendment, it speaks in terms of Con-
gress placing a restriction on the prerog-
atives of the President. Is that correct?
Mr. FULBRIGHT. That is correct.
Mr. GRIFFIN. By the use of the term
"concurrent resolution," I take it that
the Senator from Arkansas, the chair-
man of the committee, intends that this
would not require or involve the signa-
ture of the President.
Mr. FULBRIGHT. That is my impres-
sion. The article in the Constitution gives
that right explicitly to Congress.
Mr. GRIFFIN. I wish to quote a pro-
vision of the Constitution which I think
it at least pertinent because we are talk-
ing about constitutional powers. I read
from section 7 of Article I:
Every Order, Resolution, or Vote to which
the Concurrence of the Senate and House of
Representatives may be necessary (except
on a question of adjournment) shall be pre-
sented to the President of the United States;
and before the Same shall take Effect, shall
be approved by him, or being disapproved by
him, shall be repassed by two thirds of the
Senate and House of Representatives, accord-
ing to the Rules and Limitations prescribed
in the Case of a Bill. -
It seems to me that this amendment
would certainly be changing the law. Ad-
mittedly, it requires the concurrence of
both Houses of Congress. I wonder what
the Senator's answer would, be to the
point that this does require action by
the President.
Mr. FULBRIGHT. Let us assume that
the bill is passed and becomes law. It
would authorize these decisions or ac-
tions to be taken by concurrent resolu-
tion. That would be law. It would not
S 14195
have the President's signature or would
not have to be overridden. .
Mr. GRIFFIN. It seems to me that we
would be saying that by passing such a
law, we would change the Constitution.
Mr. FULBRIGHT. No, I do not think
so. The Constitution provides that Con-
gress shall have power to regulate the
Armed Forces, does it not?
Mr. GRIFFIN. Yes, but the Constitu-
tion also provides for his signature.
Every-resolution-to which the concur-
rence of the Senate and the House of Repre-
sentatives may be necessary-shall be pre-
seilted to the President of the United States.
I do not think we can point to one
section of the Constitution as a means of
avoiding a second. It is a point for con-
sideration, at least.
Mr. FULBRIGHT. Would the Senator
contend that if the bill is enacted, giving
the President authority to take these ac- !
tions regarding the deployment, in
peacetime, of the Armed Forces, that
would not be constitutional? That we
cannot, by law, give Congress the au-
thority to pass concurrent resolutions in
pursuance of the explicit powers given
to it under the Constitution?
Mr. GRIFFIN. I do not think there is
any question that Congress has the pow-
er to act. The most striking example of
the power of Congress was the action
taken with respect to cutting off funds
for the bombing of Cambodia. Congress
has the power. But I do not think we can
circumvent that part of the Constitution
that provides that the laws that Con-
gress passes would be subject to being
sent to the President for his signature.
Mr. FULBRIGHT. There is no ques-
tion that this law would be presented for
his signature. We are not arguing about
that. It is this law which prescribes the
procedure by which this particular
aspect is to be carried out. I would think
that that would comply with the provi-
sion the Senator is talking about.
Mr. GRIFFIN. I suspect we are not
going to be able to resolve this. I only
raise it as a point that should not be
overlooked. I think, in addition to the
other arguments `that have been made
against the amendment of the distin-
guished chairman of the committee,
there is a question of constitutionality.
Mr. FULBRIGHT. How does the Sena-
tor reconcile the all too common prac-
tice of Congress giving the President
discretionary power by law? We do that
in many cases, in regulatory matters,
and other areas where we authorized the
President by law to do certain things
that are otherwise reserved to Congress.
We cannot strip the Congress of con-
stitutional powers that are basic, but we
give the President much discretionary
power without a law or without requir-
ing the continued participation of the
Congress. If we give the President that
kind of authority,' l do not understand
why we could not by law give the Con-
gress the discretionary power in this
instance, especially as it relates to the
power to declare war, which is generally
considered exclusively in the power of
Congress.
This raises another question. Perhaps
the Senator from Michigan has not
thought about it. Does he think that
Congress could not pass a declaration of
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CONGRESSIONAL RECORD - SENATE July 20, 1973
war without the concurrence of the
President?
Mr. GRIFFIN. No. It is not specified
as an exception in the particular
language that I have read, and I do not
believe that It would be an exception.
The Constitution does specify the excep-
tion of a motion to adjourn, and because
the declaration of war power is spelled
out in another section, I_ do not think
it would be an exception. But I do not
equate that with the situation the Sena-
tor is addressing himself to in his
amendment.
Mr. FULBRIGHT. This is closely re-
lated to that.
Mr. GRIFFIN. Close is not quite good
enough.
Mr. FULBRIGHT. Of course, I confess
Congress has not explicitly undertaken
it to this extent, but in many of our past
actions, as the Senator knows, it has
often taken action with regard to the
deployment of troops. There was a long
debate on the floor about sending troops
to Germany. That does not go to the
point the Senator is speaking on. There
was no question Congress had that basic
authority. In most cases in the past we
have not chosen to exercise it. The
tremendous enlargement of Presidential
power has come about because Congress
never legislated in the area of congres-
sional responsibility.
Mr. GRIFFIN. I generally agree with
the Senator. The Congress has had pow-
er all along. The fact is that it has never
exercised it.
Mr. FULBRIGHT. It has never exer-
cised it, and in the absence oflegislation
and any congressional direction, the
President takes over, and we have only
ourselves to blame, in effect.
Mr. GRIFFIN. But the question I
raised is a constitutional one, and that is
whether or not, in the absence of a dec-
laration of war, which I will concede ad
arguendo would not require the signature
of the President, or under' a resolution
to adjourn under the Constitution, this
purpose can be accomplished by a con-
current resolution, which need not be
presented to the President for his signa-
ture. The language of the Constitution
in section 7 of article I seems to be so
very clear that at least the question is
one that ought to give us some concern.
Mr. FULBRIGHT. Another analogy
strikes me. I will ask the Senator if Con-
gress has not on numerous occasions by
law given the Executive the power to re-
organize the Government and then re-
tained to itself the power to veto it by
concurrent resolution without Presiden-
tial participation. Is that not a very, com-
mon practice?
Mr. GRIFFIN. I will say to the Senator
a very learned law review article, the
pertinent part of which I will have in-
serted in the RECORD latet. discusses the
constitutionality of this particular type
of legislation, pointed me In the direc-
tion of this question here. It is true that
I think when we go into a matter
which involves not just the reorganiza-
tion of the executive branch of the Gov-
ernmeent but, rather, a more fundamental
area such as the war power, it would be
stretching the concept much further and
woul be much more subject to attack.
FULBRIGHT. All that is a matter
of opinion, but there is the general feel-
ing that the war power is exclusively a
congtessional responsibility, as much a
part of the constitutional authority as
raising money. Delaring war is absolutely
fund ental. Raising money' has much
relation to carrying on the war, of course.
We undertake to specify the number of
troops and the pay of the troops. All of
that is related to the war power. We have
the responsibility for raising an army and
navy; Most of the cases the Senator Is
speaking of involve the participation of
the Congress, with the reserved power of
overriding a veto.
I take it the Senator is making the nar-
row }point of the concurrent resolution,
and that it ought to be by joint resolu-
tion.' That is a significant point that
arises in this discussion. It has not been
tested to a great extent because Congress
has,never sought to exert the power in
many of these areas. There is little ju-
dicial history on many of these questions
simply because Congress has not seen fit
to exercise its power. I think we have
rocked along for 200 years on the as-
sumption that each branch of the Gov-
ernnlent has respect for the other branch.
There has been a sort of gentleman's
agreement-"You operate within your
sphere and we will respect that." Vetoes
in the past have been relatively few, es-
pecia411y if Congress is united and in a
fairy strong position. Most Presidents
have} been disposed to accept that in most
cases. They rarely veto. But it seems to
me that one of the consequences, es-
pecially of the war in Vietnam, which has
been? outside of the Civil War, I believe
the most divisive occurrence in our his-
tory,' is that there has arisen, as a re-
sult,'. a tremendous difference of opinion
between the Senate and the past Presi-
dent. There has been a kind of bitterness
and 'resentment that has broken down
what might be called a gentlemen's ac-
ceptance of each other's role.
Of course, I participated in it, and I
felt extremely disappointed in President
Johnson because I thought he had hood-
winked me and the Senate. He had mis-
represented the need for legislation
which got us into a situation which I
thought was absolutely inexcusable. I am
sure. he did it because he thought it was
in the national interest. I do not doubt
his patriotism. He just thought we were
not to be trusted with the truth and the
Am rican people were not to be trusted
with the truth. In the election of 1964
he ran on a platform directly opposite
to what he had in mind. So the trust in
the relations between the Executive and
the Congress began to break down.
The war became bitter and tragic, and
tion in that the action is initiated by the Things got worse and worse.
President, but there is a good deal of There has been this long period of
concern in some quarters about whether mistrust between the Executive and the
or not it is constitutionalln light of this. legislative branches. All we are trying to
It has not been sufficiently tested, I would do now is, in a sense, to reaffirm the
say, in the Supreme Court. principles of the Constitution in this leg-
islation. As I have said very often, if we
could accept and could resurrect tie old
spirit of cooperation, we would no, need
this legislation. The Constitution i:. clear
enough, in my view, if we would follow it
and if the Executive would follow it. But
the Executive has not followed it.
There has not only been this matter,
but we have also had impoundment leg-
islation and Executive privilege legisla-
tion, all of which were not considered
necessary before because there had been
no abuse of power by the executive
branch to an extent that required any
action by the Congress.-It was very re-
stricted. It arose in very minor ways in
the past. That is also true with respect
to impoundment. There has always been
the question of impoundment, but not
wholesale impoundment where the Con-
gress felt it was being thwarted in major
policy.
If we could rely on the good faith of
the Executive, we would not need the bill.
However, since we cannot do so, so we
do need a bill.
I feel it is an attempt to restore the
validity of the Constitution by l~gisla-
tion. It ought not`to be necessary, How-
ever, under the circumstances, it should
be done.
In the case of deployment, there has
been little, if any, Executive abuse of
power. Usually in the past, Executives
have come to the Congress and asked for
authority to send troops, as former Pres-
ident Eisenhower did with respect to the
Middle East. And the truth was told
about that matter. We debated it and
approved of it. There was no question
then. However, now there is the feeling
that the President has developed the
idea that, as Commander in Chief, he
can do anything he likes to do.
That assertion has brought forth the
reaction of the Congress. Congress can-
not accept the Executive's theory. We
are forced to react in this fashion and
act on this legislation I certainly ap-
prove of it.
The only questions that always arise
are the means and the best way to ac-
complish the objective. This is inherent
in every bill that comes before Congress.
No piece of legislation satisfies every-
one. We all have different view,: as to
some aspect of the matter that could be
more effective in accomplishing the an-
nounced and accepted objectives
That is about the story, Mr. President.
I would hope for the acceptance of a
very modest assertion of the power to
control deployment which, in it:,elf, as
General Wheeler so well said, gives a
greater guarantee than any writ;e:n in-
strument. He says in effect that 'it you
put the troops in Spain, we are more
likely to come to your rescue tha:1 if we
had a treaty. Don't worry about it."
There was no treaty. We put 10,000
soldiers there. General Wheeler is very
much correct on that.
Therefore, to implement our power--
responsibility more than power-we must
try to control deployments in peacetime
so that we do not enter into a w 3w as a
result of our deployments.
Again I say that if it were not for the
arbitrary attitude of the Executive that
they can put these troops in Slain by
executive agreement and wit lout a
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July 20, 1973 CONGRERRHATf
treaty, I would not be thinking of such a
provision.
Again we.pleaded with the Executive
to submit a Spanish agreement by treaty,
which would have been a quite satis-
factory procedure. In the absence of a
treaty we had no opportunity to approve
or disapprove of circumstances which
could lead us into an involvement in war.
However, they refused.
Wehave recently had the same sort of
thing in a little different area in the
taking over or opening of the Bahrein
Naval Base and the continuation of the
Azores agreement. They are not as di-
rect as the Spanish agreement was. How-
ever, where we have these operations of
naval bases and troops, they should be
submitted to the Senate.
Mr. GRIFFIN. Mr. President, I ask
unanimous consent that that part of the
Harvard Law Review article dealing with
the constitutionality of the concurrent
resolution process, to which I referred,
be printed in the RECORD at the conclu-
sion of our colloquy.
There being no objection, the excerpt
was ordered to be printed in the RECORD,
as follows:
[From the Harvard Law Review, February
1953]
THE CONTROL OF FEDERAL ADMINISTRATION BY
CONGRESSIONAL RESOLUTIONS AND COMMIT-
TEES
(By Robert W. Ginnane)
C. CONSTITUTIONALITY OF THE USE OF CON-
CURRENT RESOLUTIONS
It is one purpose of this article to suggest
that there are grave doubts as to the consti
tutionality of all of the recent statutory pro-
visions described above for the use of con-
gressional resolutions. As stated earlier, these
doubts are not particularly engendered by
any rigid classification of governmental acts
as legislative or executive. That many acts
of government may be performed with equal
propriety by the legislative branch or the
executive branch may be conceded. The ob-
jection is rather to the manner of the exer-
cise of power. As one of the checks upon
undue concentration of governmental power
in a single organ of government, Article I,
Section 7, makes presidential approval, or
veto subject to being overridden by two-
thirds vote of each house, an essential ele-
ment in the exercise of power by Congress.
That the President cannot be excluded from
the legislative process by thQ simple expedi-
ent of embodying policy decisions having the
force of law in the form of "resolutions" not
presented to him is made clear by the second
paragraph of Section 7, providing that "Every
order, resolution, or vote" requiring the con-
currence of Senate and House, except on a
question of adjournment, must be presented
to the President as in the case of bills-a pro-
vision added for the express purpose of pre-
venting evasion of the President's veto,
Since the Constitution plainly requires
presidential participation in the exercise of
legislative power, a power must be classified
as non-legislative to justify its exercise by
Congress or, one of its branches in a way
other than that prescribed?08 But it is clear
108 However, it could then be argued that
members of Congress, in their capacities as
such, may not perform non-legislative func-
tions. It is settled that Article III judges
may not perform non-judicial functions in
their capacities as judges. Federal Radio
Comm'n v. General Elec. Co., 281 U.S. 464
(1930). Under the doctrine of Springer v.
that the policy decision and legal conse-
quences of concurrent resolutions used in
the ways that have been described-for
example, the disapproval of a reorganization
plan, the termination of the Attorney Gen-
eral's suspension of deportation of an alien,
or the imposition of an arms embargo-are
indistinguishable from the policy decision
and legal consequences of ordinary legisla-
tion. The absence of distinction is particu-
larly evident where the statute provides for
termination or repeal by concurrent resolu-
t16n, since it can hardly be contended that
the repeal of a statute is less of a legisla-
tive act than its original enactment. The
validity of such provisions is further under-
mined by the specific refusal of the Consti-
tutional Convention of 1787 to except repeal
legislation from the requirement that pro-
posed legislation be presented to the Presi-
dent.
This view also finds support in the inter-
pretation given by Congres to Article I, Sec-
tion 7 i;1 all but the most recent years. In
the first explicit congressional statement, in
1879, the Senate Committee on the Judiciary
stated that concurrent resolutions which
"contain matter which is properly to be re-
garded as legislative in its character and
effect" must be submitted to the President,
and that "the nature or-substance of the
resolution, and not its form, controls the
question of its disposition." 10B That this was
the view adopted by Congress in practice is
demonstrated strikingly by the passage of 150
years after the adoption of the Constitution
before statutes began to provide for such uses
of congressional reolutions. And until the
enactment of such statutory provisions be-
came commonplace, their validity was chal-
lenged vigorously in both Senate and House,
without regard for party lines, as well as by
Attorney General Mitchell and President
Roosevelt.
Finally, the scope of the potential applica-
tion of such provisions Is alone enough to
suggest a serious question as to their consti-
tutionality. If the modern uses of the con-
current resolution are valid, then Congress is
free to provide, for example, that any pro-
posed loan by a federal lending agency may
be vetoed by a concurrent resolution, or that
the maximum or minimum price for a par-
ticular comodity may be prescribed by a con-
current resolution. Again, it would be theo-
retically possible for Congress to pass, per-
haps over the President's veto, legislation pro-
viding that each section of the United States
Code could be terminated or repealed by con-
current resolution. Not many such statutory
provisions would be required to alter pro-
foundly the distribution of power in the Fed-
eral Government. -
The legal and practical arguments ad-
vanced by proponents of such statutory
provisions seem unpersuasive. Thus they
contend that the operation of the statute
merely depends upon occurrence of a condi-
tion precedent-the fact or event of Con-
gress passing a resolution, or a fact to
be found by Congress. Specifically, they
have urged that if the exercise of stat-
utory powers can be made contingent
upon findings of fact by an executive
officer, as in the tariff cases,110 or upon
Philippine Islands, 277 U.S. 189 (1928), it
would seem that Congress cannot confer
excutive powers upon itself or its members,
since Article II, ? 2 vests exclusive power to
appoint federal officers in the President with
advice and consent of the Senate (or if
Congress so prescribes, in the President alone,
in the courts of law, or in the heads of
departments). Moreover, Article I, ? 6 pro-
vides that no person holding any office under
the United States Government may be a
member of Congress during his continuance
in office. See note 160 infra.
108 See pp. 573-74 supra.
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the favorable vote of the persons who will
be affected by proposed governmental action,
as under some of the agricultural marketing
statutes,"' it is "difficult to believe that the
effectiveness of action legislative in charac-
ter . may not be conditioned on a vote
of the two legislative bodies of the Con-
gress." 112 The answer to' such contentions
would seem to be that it is one thing for
a statute to provide that, after Congress and
the President have both performed their
legislative roles, the application of a statute
may be further conditioned upon an execu-
tive officer's finding of fact or upon a favor-
able vote of interested persons, and it is an-
other thing.for Congress to reseve to itself,
excluding the Pesident, the power of further
determining the application of a statute. It
is a non sequitur to say that, since a statute
can delegate a power to someone not bound
by the procedure prescribed in the Consti-
tution for Congress' exercise of the power,
it can therefore "delegate" the power to
Congress free of constitutional restrictions
on the manner of its exercise. The result-
and, indeed, the frankly stated purpose-of
such provisions is to exclude the President
from decisions of Congress which. in their
legal consequences are indistinguishable
from statutes and which are seemingly the
type of policy decisions which Article I, Sec-
tion 7 requires to be submitted to the Presi-
dent. In brief, it is difficult to avoid the con-
clusion that the express purpose of the third
paragraph of that section to insure that the
President's role- in the legislative process
should not be eliminated merely by giving
legislative decisions another name 118 would
be thwarted by statutes which reserve final
governmental decisions for determinations
as "events" by Congress alone.
Another legal basis adduced for such stat-
utory provisions is found in the informal
suggestion of the Department of Justice,
made in connection with the Reorganization
Act of 1949, that a provision for disapproval
of reorganization plans by concurrent resolu-
tion could be justified as an agreement by
the President not to act without consulting
Congress or in the face of its disapproval.
However, this theory of an agreement to con-
sult would seem to prove both too little and
too much. Certainly, the theory would not
support provisions which were enacted over
the President's veto if the action to be ap-
proved is not initiated by the President. On
the other hand, this agreement theory goes
too far in that it would justify making ad-
ministrative action subject to disapproval by
legislative committees-a highly dubious
matter, as is pointed out below. In any event,
it would seem that the President's role under
the Constitution cannot be altered by agree-
ment.
In the case of the Reorganization Act of
1949, which provided for disapproval by
either House of reorganization plans proposed
by the President, it is arguable that there is
simply a reversal of the chronological order
in which Congress and the President usually
act in the legislative process. The President
has indicated his approval by preparing the
plan and each House has indicated its ap-
proval by failure to pass a resolution of dis-
approval. It is not clear, however, whether
the power of each House to determine its
own procedure 114 can be viewed as including
the power to provide that a bill will be
deemed passed unless specifically disap-
110 Marshall Field & Co. V. Clark, 143 U.S.
649 (1892); J. W. Hampton, Jr. & Co. v.
United States, 276 U.S. 394 (1928).
111 Curran v. Wallace, 306 U.S. 1 (1939) ;
United States v. Rock Royal . Cooperative,
Inc., 307 U.S. 533 (1939).
112 H.R. REP. No. 120, 76th Cong., 1st Sess.
6 (1939).
118 See pp. 572-73 supra.
114 See Christoffel v. United States, 338 U.S.
84 (1948).
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 S 14198 Approved For "A Kk(L6 i&75F P9JW000700090010,1Uly
proved within a certain period of time. There Hampshire court would seem equally appl.i-
is at least a question under the Constitution cable u der the more customary constitu-
whether the mere inaction of both Houses, tional r quirement that both houses of a
which conceivably might- reflect little or no bicameral legislature must act concurrently,
deliberation, Is an acceptable substitute for and the' decision thus supports the view of
the deliberation which is ordinarily assured the Senate Judiciary Committee in 1945 that
by the requirement of an affirmative vote. neither douse of Congress can be deprived
And even if the theory of legislative action of its power to prevent a legislative proposal
by inaction is sound-or indeed, even if pro- from becoming law and that therefore each
posed executive action is matte subject to House must be enabled to prevent a reorgan-
prior affirmative approval by both Houses as ization plan from becoming effective.
in the latest provisions for approval of de- In contrast, the Supreme Court of Colo-
portation suspension-it would seem that the rado has recently upheld a statute under
proposal should nevertheless be presented to which the proceeds from certain taxes could
the President after approval by Congress as' be pledged as security for bonds to be issued
prescribed in the Constitution. If such a? to finance highway construction, with the
method for congressional control over reor- proviso "that any such pledge shall first be
ganizations is to be justified by characteriz- approved by joint resolution of the Senate
ing it as "legislation," there seems no reason and House of Representatives." 121 Article V,
why the constitutional requirements for leg- Section $9, of the Colorado constitution dif-
islation should not be satisfied, even though fers from the third paragraph of Article I,
the President's approval be a foregone con- Section 7, of the Federal Constitution only
elusion. in that he exception from the requirement
The practical justifications seem equally of submission to the executive of concur-
unpersuasive. It has been suggested, notably rent action on questions of adjournment is
by Professor Corwin, that in an era of in- followed;. by the words "or relating solely to
ternational tension which impels Congress the transaction of business of the two
to delegate extraordinary powers to the exe- houses '" The Colorado court upheld the
cut-lye branch, statutory provisions for term- statute on the theory that such a resolution,
ination by concurrent resolution are an es- "not being legislative in character, related
sential means of preserving our constitu- solely to the business of the General As-
tional equilibrium-namely, by giving Con- sembly."; This theory seems hardly tenable
gress a compensating power to retract the and suggests that the legislature could, by
delegated authority without the necessity enacting such statutes, classify almost any
of overcoming presidential vetoes.118 Such a kind of governmental action as its exclusive
fundamental political consideration, if real, concern.
would probably carry great weight with the The only judicial consideration of pro-
courts118 However, as Madison foresaw, Con- visions for the termination of a statute by
grass seems to have been able to maintain concurrent resolution is found in Matter of
effective control over its great delegations of Moran v' La Guardia. = A New York statute
power by the device of enacting statutes of authorizing New. York City to reduce cer-
short duration, thus providing Congress with tain civil service salaries during the emer-
regular opportunities to determine whether gency poclaimed by the statute provided
to renew or modify the grant. "other effec- that the:: provisions should apply "until the
tive device is that ofproviding in appropria- legislature shall find their further operation
tion acts that no funds shall be used for unnecessary." The legislature passed a bill to
specified purposes. The adequacy of these - repeal this statute which was vetoed by the
techniques is suggested by the fact that governor, Thereafter, the legislature sought
Congress has not yet found it necessary to to achieve the same result by passing a re-
pass a concurrent resolution purporting to solution "not submitted to the governor. A
terminate a statute or to terminate aid to majority of four of the seven judges of the
a particular country. Court of Appeals apparently held that a
The federal courts have not yet had occa- statute could not provide for its termina-
sion to consider the validity of any of these tion by a concurrent resolution, stating tha
statutory provisions for the use of congres- "A concurrent resolution of the Legislature
sional resolutions. However, the few state is not elective to modify or repeal a statu-
court decisions on similar state statutory tory enactment. . To repeal or modify a
provisions are either adverse or unpersuasive. statute requires a legislative act of equal
Thus the Supreme Court of New Hampshire dignity and import. Nothing less than an-
held invalid a state statute which, like the other statute will suffice. A concurrent reso-
Federal Reorganization Acts of 1939 and 1945, lution of the two Houses is not a statute....
provided for the submission by the governor It resembles a statute neither in its mode
to the legislature of reorganization plans of passage nor in its consequences. . . . But
which were to become effective if within 25 more important, its adoption is complete
days "there has not been passed by the two without the concurrent action of the Gov-
houses a concurrent resolution stating in ernor, or Tacking this, passage by a two-thirds
substance that the [legislature] does not vote of each house of the Legislature over
favor the reorganization plan.""' It found his veto." 121
a violation of the provision of the state con- The court obscured the precise basis of 1-.9
stitution that "The supreme legislative decision, however, by concluding further that
power, within this state, shall be vested in the statute did not contemplate termination
the senate and house of representatives, each by a resolution not submitted to the gov-
of which shall have a negative on the ernor. The dissenting judges, pointing out
other," 118 in that "Each house has under- that the termination clause was entirely
taken in advance to surrender to the other superfluous if construed to mean that ter-
its constitutional authority to veto or refuse mination could be effected only by a statute,
assent to action taken or approved by the argued that the statute both could and did
other." 110 The dissenting judges regarded provide for its termination by a resolution
the provision as "merely one of the checks embodying a finding of fact by the legisla-
or restraints upon the exercise of the sub- ture. While the veto provisions of the New
ordinate legislative power delegated to the York constitution 114 are almost identical with
Governor." 120 The rationale of the New - the first paragraph of Article I, Section 7 of
the Federal Constitution, they do not contain
See Corwin, Total War and the Consti- the further provision found in the third para-
tution 45-47 (1947). graph of'the latter that every order, resolu-
11e See Myers v. United States, 272 U.S. 52, tion, or vote requiring the concurrence of
134-35 (1928).
117 Opinion of the Justices, 96 N.H. 517,
83 A.2d 738 (1950).
118 N.H. Const. Part II, Art. 2.
18 96 N.H. at 522,83 A.2d at 741-42.
120 96 N.H. at 529, 83 A.2d at 746.
121 Watrous v. Golden Chamber of Com-
merce, 121 Colo. 521, 218 P.2d 498 (1950).
1-0 270 l`l.Y. 450, 1 N.E.2d 961 (1936).
112 270 N.Y. at 452, 1 N.E. 2d at 962.
1a N.Y. boost. Art. IV, ? 7.
20, 11)73
both Houses must be submitted to the Pres-
ident. Accordingly, it Would be much easier
under the Federal Constitution to conclude
that a?statute could, not provide for its ter-
mination by concurrent resolution.
Mr. MUSKIE. Mr. President, I yield
5 minutes to the Senator from Texas.
Mr. TOWER. Mr. President, I-disagee
strongly with the assertion of the Sena-
tor from Arkansas that what Congress
is doing here is reasserting it own con-
stitutional authority and giving validity
to the intent of the framers of the Con-
stitution.
I believe that the amendment offered
by the Senator from Arkansas does great
violence to the constitutional role of the
President of the United States as Com-
mander in Chief of the armed services.
And the latter does equal violence to the
constitutional role of the President as
the principal spokesman on inteina-
tional matters, as the principal formula-
tor and implementor of American for-
eign policy.
S. 440 is bad enough and is enough of
a violation, in my estimation, of the
constitutional prerogatives of the Presi-
dent without adding the amendment of-
fered by the Senator from Arkansas.
A great deal has been said about the
relationship between the Executive and
the Congress, and that if we had gone
along with each branch respecting the
other, the thing would have been all
right. However, it was said that the Pres-
ident has been indisposed to cooperate
with the Congress and that therefore the
Congress asserts itself in this matte:?.
The fact of the matter is that Pr~ei-
dent Nixon was the first President since
Zachary Taylor, the first President in
120 years, entering upon his first term
of office with both Houses of the Cin-
gress in control of the opposition party.
There has, I think, been a great dear: of
partisanship involved to the extent that
it might be referred to as constipation
between the Congress and the President.
And I am not saying that the partis in-
ship is confined to just one branch. I
would not want to assert that at all.
The fact is that there is a partian
climate at this moment which augers
well, unfortunately, for the passage of
legislation of this kind, because this is,
I guess we might call it, "Kick the Pri'si-
dent Season," and there is a mood here
in Washington that is not conducive to
cool consideration of the merits of le?:is-
lation of this kind.
I would remind Congress that Presi-
dent Nixon was reelected last year by an
overwhelming majority of the votes of
the American people. And that was Mot
just an electoral college majority. It was
a vast public majority. And the principal
issue in the campaign was foreign pol: cy.
Two sharply different views were pre-
sented in the campaign, on foreign policy
and on national security policy. And .he
policy advanced by the President of ;he
United States received the overwhelming
support of the American people.
By passing legislation of this kind it
is my view that we are flying in the tenth
of the mandate conferred by the Am3r-
ican people on the President of the
United States. They have expressed at
the ballot box their confidence in his
ability to formulate and implement a
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July 20, 1973 CONGRESSIONAL RECORD -SENATE S 14199
foreign policy that is in the best interest other than by law. A concurrent resolu- where the Polaris submarines are based
of the United States. tion is not law, it is nonstatutory. I and deployed today?
We seek here now to hamstring the think where concurrent resolutions can Mr. FULBRIGHT. Mr. President, this
President. And I am hopeful that the be used is where you have a power that amendment explicitly exempts the Po-
Senate will reject the amendment offered Congress has conferred under its au- laris submarines. It should not apply to
by the Senator from Arkansas that seeks, thority to make general law; and it can submarines. But they are not affected. I
in effect, to give Congress the control take that power back, if the President am only talking about the things the
over the deployment of troops. signs the bill providing that we can take amendment talks about.
We have great difficulty in agreeing on it back into law. In the daily press-I read just today
a number of things here. And a failure to As to constitutional authority, I have how many there are in Japan, and how
deploy American troops would be more, grave doubts about it. Incidentally, I do many in Korea. So when you talk about
I think, than the Congress could expedi- not know whether that has been decided peacetime, I think it is not really all that
tiously handle. by the courts, but I am giving my best secret. I do not think it is a major prob-
Therefore, I believe that the amend- opinion, and am not depending on it for lem. That is all I am saying.
ment of the Senator from Arkansas any war powers legislation. Mr. JAVITS. What I am saying, Mr.
should be defeated. But laying that aside, my point is President, in judging the delicacy of
The PRESIDING OFFICER. Who that it is another question of war we what the Senator is trying to do, is that
yields time? would be trying to deal'with. It may be he himself-not I, he-in drafting the
Mr. MUSKIE. Mr. President, I yield a very important one, like Senator amendment, found it necessary to say
myself 6 minutes. EAGLETON's, but one we simply cannot that the information shall be provided
May I make clear at the outset that I encompass in this bill, under the appropriate injunctions of
respect immensely the capability, the Another thing I would like to call to secrecy.
knowledge, and the background of the Senator FULBRIGHT'S attention, because Therefore, if the President is not going
distinguished chairman of the Commit- I have little doubt, whether he succeeds to dispel the very thing he calls for, but
tee on Foreign Relations, and I often or fails here, that this is a subject deep we are going to dispel it, we have to
follow his lead in these matters. in his mind and he will pursue it. I think about that; we cannot just say
With respect to this amendment, the would like to call to his attention the "Do it."
basic position which I take is that it secrecy problem, a very serious problem I say this. only to emphasize that this
again raises the risk of loading the bill in this respect, because he himself con- Is an intricate, subtle, and difficult sub-
with serious questions that ought not to templates it. He says the President shall ject. It is not a subject that should be
be loaded upon it at this time. One of provide "under appropriate injunctions disposed of hastily, or superficially, in
the questions has already been discussed of secrecy"-that is page 1, lines 3 and terms of a quick debate under time limi-
by the distinguished Senator and the 4, of his own amendment-and that is tation. We have had no hearings and
minority whip-the question of whether very necessary, because, after all, that only a cursory debate. P
or not the concurrent resolution -provi- is one of the legitimate secrets of any The PRESIDING OFFICER. The Sen-
sion is constitutional. A second question country, to wit, the deployment of its ator's 4 minutes have expired.
is the President's constitutional power armed forces. Mr. FULBRIGHT. Mr. President, will
to deploy the Armed Forces. The question is, How do you break that the Senator yield' for one observation?
Congress undoubtedly has authority in secrecy, assuming it can be removed on The PRESIDING OFFICER. Who
this field, and the President has some due notice from the President? Suppose yields time?
authority in this field. As the Senator the President does not give. you due no- Mr. MUSKIE. I yield the Senator such
from Arkansas so eloquently pointed out, tice? Then when we pass the concurrent time as he may require.
what we have here is another one of those resolution, we are breaking the secrecy. Mr. FULBRIGHT. This ithat it is
gray areas that is better left alone. Be- I do not say that is impossible; we can delicate and .I ought not Idea interfere,
cause it is such a gray area, and because live with that, too. Maybe we, too, have delicate
course, is a at the oroot of ught not
our trtrouble,
the question the amendment raises is a to function in some things in secrecy, of have proceeded the
significant one and may be a serious one, and be tough enough to discipline a of Presidential under our er this kind of
for
I prefer not to add it to the bill at this Member who breaks the secrecy, which myth about 30 or 40 years, aninfallibility d everyone it
time. For that reason I shall oppose the is something we have never done. But about
mys-
amendment. that takes a good deal more thought and conditioned o the believe President that is in some reliable on
I yield the distinguished Senator from refinement than we can put into this terious way to secrecy, that has wisdom, and on
New York such time as he may require, bill with an hour's debate. ht not to interfere with it. This is the
Mr. JAVITS. I need just 4 minutes. On the question of constitutionality, i ought t
Mr. President, this amendment is not would like to say that while I believe root of our problem. I find that there is
unlike the Eagleton amendment. It deals Congress does have power to legislate an assumption in this bill as it comes
with causes of war. The Senator from respecting peacetime deployment, the from the committee that certain sec-
Arkansas (Mr. FULBRIGHT), out of his constitutional interplay between Con- tions, like section 6, are sort of based
extremely rich experience, says that if gress and the Commander in Chief is upon an assumption that Congress has
you pile troops or forces in a given area, somewhat different. The respective au- to assert its power legislatively. We have
that could enhance the possibility of war. thorities are different, and perhaps the gotten into the position that we are so
But, here again, we must stick to the Commander in Chief's authority is conditioned we cannot do anything. But
basic purpose of our bill: It is a method- stronger vis-a-vis Congress with respect I do not think it is valid to assume that
ology. It is a way in which to give Con- to the details of the locus of peacetime the Executive is so much more reliable
gress the opportunity and the frame of deployment of the forces under his com- than Congress that he can be absolutely
reference in law by which it can assert mand. This is an issue which should be depended upon.
itself in respect to deciding on war-not explored and clarified in hearings such Mr. JAVITS. Mr. President, if I may
the causes of war, but war. To be faith- as we did with respect to the war powers. have 1 more minute to reply, this whole
ful to that purpose, we must reject this Mr. FULBRIGHT. Mr. President, will bill is a massive negation of that assump-
amendment. the Senator yield for clarification? tion.
For those reasons, not because I do not Mr. JAVITS. Yes. Mr. MUSKIE. Mr. President, I yield
understand or am not sympathetic, or Mr. FULBRIGHT. I want to emphasize back the remainder of my time.
because there is no congressional that this applies only in peacetime. To- The PRESIDING OFFICER (Mr.
power-there is; Congress can pass laws day there are no secrets, I believe, as to BIDEN). All remaining time having been
about deployment. I must say to the Sen- where our troops are. Every day we read Yielded back, the question is on agreeing
ator from Arkansas I have grave doubts about 70,000 in Germany, so many in to the amendment of the Senator from
about a concurrent resolution. I doubt Ethiopia-we read about it almost daily Arkansas (Mr. FULBRIGHT).
that the congressional power respecting in the press, as to where they are. This The amendment was rejected.
the President's power, where both of applies only in peacetime. I am not un- Mr. JAVITS. Mr. President, I move
them are in a given area, as in warmak- dertaking to deploy them in wartime. that the vote by which the amendment
lug or in deployment, can be asserted Mr. JAVITS. Can the Senator tell us was rejected be reconsidered.
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 S 14200
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CONGRESSIONAL RECORD -SENATE July 20, 19 73
Mr: TOWER. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
The PRESIDING OFFICER (Mr.
BIDEN). Pursuant to the previous order,
the hour of 12 o'clock noon having ar
rived, the Senate will now proceed to
vote on amendment No. 366 of the Sen-
ator from Missouri (Mr. EAGLETON). On
this question, the yeas andF nays have
been ordered.
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that I may suggest
the absence of a quorum briefly.
The PRESIDING OFFICER. The Sen-
ator has that right. The clerk will call
the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. MANSFIELD. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER (Mr;
CLARK). Without objection, it is so or-
dered.
The question is on agreeing to amend-
ment No. 366 of the Senator from Mis-
souri (Mr. EAGLETON).
On this question the yeas and nays
have been ordered, and the clerk will call
the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. ROBERT C. BYRD. I announce
that the Senator from Virginia (Mr. HAR-
RY F. BYRD, JR.), the Senator from Indi-
ana (Mr. HARTKE), the Senator from
Wyoming (Mr. McGEE), the Senator
from Arkansas (Mr. MCCLELLAN), and
the Senator from South Dakota (Mr.
MCGOVERN) are necessarily absent.
I also announce that the Senator- from
Mississippi (Mr. STENNIS) Is absent be-
cause of illness.
Mr. GRIFFIN. I announce that the
Senator from New Hampshire (Mr. COT-
TON) and the Senator from Arizona (Mr.
GOLDWATER) are absent because of illness
NAYS-53
Aiken
Eastland
McIntyre
Allen
Ervin
Metcalf
Baker
Fannin
Muskie
Bartlett
Fong
Nunn
Beall
Griffin
Pastore
Bellmon
Gurney
Pearson
Bennett
Hansen
Roth
Bentsen
Helms
Saxbe
Bible
Hollings -
Scott, Pa.
Biden
Hruska
Sparkman
Brock
Huddleston
Stafford
Brooke
Humphrey
Taft
cannon
Jackson
Talmadge
Chiles
Javits
Thurmond
Cook
Johnston
Tower
Curtis
Long
Weicker
Dole
Magnuson
Young
Domenici
McClure
NOT VOTING-13
Buckley
Goldwater
Percy
Byrd,
Hartke
Scott, Va.
Harry V., Jr.
McClellan
Stennis
Cotton
McGee
Stevens
Dominick
McGovern
So Mr. EAGLETON'S amendment (No.
366) was rejected.
Mr. ,TAVITS. Mr. President, I move to
reconsider the vote by which the amend-
ment *as rejected.
Mr. GRIFFIN. I move to lay that mo-
tion oil the table.
The motion to lay on the table was
agreed to.
from Illinois (Mr. PERCY) would vote
.,yea.."
The result was announced-yeas 84,
nays 3, as follows:
(No. 311 Leg.]
YEAS--84
Aiken
Fannin
Montoya
Baker
Fong
Moss
Bartlett
Fulbright
Muskie
Bayh
Gravel
Nelson
Beall
Griffin
Nunn
Bellmon
Gurney
Packwood
Bennett
Hansen
Pastore
Bentsen
Hart
Pearson
Bible
Haskell
Pell
Biden
Hatfield
Proxmire
Brock
Hathaway
Randolph
Brooke
Hollings
Ribicoff
Burdick
Hruska_
Roth
Byrd,
Huddleston
Saxbe
Harry F., Jr.
Hughes
Schweiker
Byrd, Robert C. Humphrey
Scott, Pa.
Cannon
Inouye
Sparkman
Case
Jackson
Stafford
Chiles
Javits
Stevenson
Church
Johnston
Symington
Clark
Kennedy
Taft
Cook
Long
Thurmond
Cranston
Magnuson
Tower
Curtis
Mansfield
Tunney
Dole
Mathias
Weicker
Domenici
McClure
Williams
Eagleton
McIntyre
Young
Eastland
Metcalf
Ervin
Mondale
NAYS--3
Alley
Helms
Talmadge
NOT VOTING-13
Abourezk
Hartke
Scott, Va.
Buckley
McClellan
Stennis
Cotton
McGee
Stevens
Dominick
McGovern
Goldwater
Percy
DISTRICT OF COLUMBIA
APPROPRIATIONS, 1974
The PRESIDING OFFICER. Under
the previous order the Senate will pro-
ceed to vote on H.R. 8658, which the
clerk will state by title.
The bill was stated by title, as follows:
A bill (H.R. 8658) making appropriations
for the: government of the District of Colum-
bia and other activities chargeable in whole
or in part against the revenues of said
District for the fiscal year ending June
30, 1974, and for other purposes.
The PRESIDING OFFICER. On this
question the yeas and nays have been or-
dered, and the clerk will call the roll.
The second assistant legislative clerk
called: the roll
in their respective families. Mr. ROBERT C. BYRD. I announce
The Senator from Alaska (Mr. STEP- that the Senator from South Dakota
ENS) is absent by leave of the Senate on (Mr. ABotREzK), the Senator from In-
account-of illness in his family. diana (Mr. HARTKE), the Senator from
The Senator from New York (Mr. Arkansas (Mr. MCCLELLAN), the Senator
BUCKLEY), the Senator from Colorado from Wyoming (Mr. MCGEE), and the
(Mr. DOMINICK), and the -Senator from Senator from South Dakota (Mr. MC-
Illinois (Mr. PERCY) are necessarily GovEiN) are necessarily absent.
absent.
The Senator from Virginia (Mr. ScoTT) I also announce that the Senator from
Mississippi (Mr. STENNIS) is absent be-
ts absent on official business. cause of illness.
If present and voting, the ' Senator Mr. GRIFFIN. I announce that the
from Illinois (Mr. PERCY) would vote Senator from New Hampshire (Mr.
"nay." COTTON), and the Senator from Arizona
The result was announced-yeas 34, 011- GOLDWATER) are absent because of
nays 53, as follows:
[No. 310 Leg.]
YEAS-34
Abourezk
Haskell
Packwood
Bayh
Hatfield
Pell
Burdick
Hathaway
Proxmire
Byrd, Robert C. Hughes
Randolph
Case
Inouye
Ribicoff
Church
Kennedy
Schwelker
Clark
Mansfield
Stevenson
Cranston
Mathias
Symington
Eagleton
Mondale
Tunny
Fulbright
Montoya
Williams
Gravel
Moss
Hart
Nelson
illness in their respective families.
The Senator from New York (Mr.
BUCKk.EY), and the Senator from Alaska
(Mr. STEVENS) is absent by leave of the
Senate on account of illness in his fam-
ily.
The Senator from Colorado (Mr. DoMI-
NICK) and the Senator from Illinois (Mr.
PERCY) are necessarily absent.
The Senator from Virginia (Mr. SCOTT)
is absent on official business.
If present and voting, the Senator
So the bill (H.R. 8658) was passed.
Mr. BAYH. Mr. President, I move that
the Senate reconsider the vote by which
the bill was passed.
Mr. MANSFIELD. I move to lay that
motion on the table.
The motion to lay on the table was
agreed to.
Mr. BAYH. Mr. President, I move that
the Senate insist upon its amendments
and request a conference thereon with
the House of Representatives, and that
the Chair be authorized to appoint the
conferees on the part of the Senate.
The motion was agreed to; and the Pre-
siding Officer (Mr. CLARK) appointed Mr.
BAYH, Mr. MCCLELLAN, Mr. Imiou ', Mr.
CHILES, Mr. EAGLETON, Mr. MATHIA$, and
Mr. BELLMON conferees on the part of
the Senate.
MESSAGES FROM THE PRESIDENT
Messages in writing from the Presi-
dent of the United States, submitting
nominations, were communicated to the
Senate by Mr. Leonard, one of his sec-
retaries.
EXECUTIVE MESSAGES REFERRED
As in executive session, the Presiding
Officer (Mr. CLARK) laid before the Sen-
ate messages from the President of the
United States submitting sundry nomi-
nations, which were referred to the ap-
propriate committees.
(For nominations received todcy, see
the end of Senate proceedings.)
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 July 20,"'1973 CONGRESSIONAL RECORD -SENATE
WAR POWERS ACT
The Senate continued with the con-
sideration n of the bill, (S. 440) to make
rules governing the use of the Armed
Forces of the United States in the ab-
sence of a declaration of war by Con-
gress.
Mr. FULBRIGHT. Mr. President, I ask
unanimous consent that I may be per-
mitted to yield to the Senator from North
Carolina (Mr. ERvIN) for 5 minutes, with-
out the time being charged to either side.
The PRESIDING OFFICER. Without
objection; it is so ordered.
Mr. ERVIN. Mr. President, despite the
popularity of the so-called war powers
bill, I cannot in good conscience sup-
port it. The reasons for my opposition "
are extremely simple. The Constitution
clearly makes a distinction between two
kinds of wars.
The 11th clause of section 8 of the
first article gives Congress the power to
declare war. That clearly refers to any
offensive war In which the United States
may engage. This is made manifest by
section 4 of article IV which says:
The United States shall guarantee to every
State in this Union a Republican Form of
Government, and shall protect each of them
against invasion; ...
Now the question occurs, By what offi-
cial is that power to be exercised? It is
clearly to be exercised by the President,
because section 2 of article II of the
Constitution says:
The President shall be Commander in
Chief of the Army and the Navy of the
United States ...
This bill provides in section 5 that the
President of the United States, as the
Commander in Chief of the Army and
Navy of the United States, cannot exer-
cise his constitutional power, yea, his
constitutional duty, to protect this coun-
try against invasion for more than 30
days without the consent of the Congress.
We hear much nowadays about the
separation of powers. Here is a power
and a duty which the Constitution clearly
imposes upon the President of the United
States, to use the Armed Forces to pro-
tect this country against invasion. And
here is a bill which says expressly that
the President of the United States can-
not perform his constitutional duty and
cannot exercise his constitutional bower
to protect this country against invasion
for more than 30 days without the af-
firmative consent of Congress.
Mr. President, those are the reasons
for my opposition to the bill. And I thank
my good friend, the Senator from Ar-
kansas for his great generosity in yield-
ing me 5 minutes in which to speak at
this time.
Mr. GRIFFIN. Mr. President, will the
Senator yield for a brief elaboration of
his point?
Mr. ERVIN. I yield.
Mr. GRIFFIN. Mr. President, is it not
true if we recognize, as this bill does, that
the President does have power under the
Constitution for 30 days, that it is a little
bit unusual and indeed impractical to
suggest that we can limit his constitu-
tional power by simple statute and limit
it arbitrarily to 30 days?
Mr. ERVIN. The Senator is correct. In
my opinion, in spite of the good purposes
of the bill and the lofty motives of those
who support it, I think the bill is an ab-
surdity as a practical matter..
We used to have a lot of fighting in
my old hometown around the court
square. We had an ex-sheriff by the name
of Alex Duckworth, who drove by there
in his buggy one day when two men were
in a fight.
The ex-sheriff asked, "Whose fight is
this?"
One of the fighting men said, "Any-
'body's."
The ex-sheriff said, "I am In it."
One of the other men gave him a hefty
punch on the jaw and knocked him
down. The ex-sheriff jumped up and said,
"I am out of it."
This measure is an absurdity. It says
that when the United States is invaded,
Armed Forces of the United States must
get out of the fight against an invader
at the end of 30 days if the Congress does
not take affirmative action within that
time to authorize the President to con-
tinue to employ the Armed Forces to
resist the invasion. The bill is not only
unconstitutional, but is also impractical
of operation. In short, it is an absurdity.
Under it, the President must convert Old
Glory into a white flag within 30 days
if Congress does not expressly authorize
him to perform the duty the Constitu-
tion imposes on him to protect the Nation
against invasion.
Mr. GRIFFIN. Mr. President, as a
Senator on this side of the aisle, I want
to thank a proponent of the bill for
yielding time to an opponent of the bill.
Mr. FULBRIGHT. Mr. President, I did
not yield the floor. .
The Senator asked me If as a matter
of courtesy, I would yield to him. I asked
that the Senator be given 5 minutes with-
out it being charged to either side. I had
the right to the floor under the previous
agreement.
Mr. GRIFFIN. Of course.
Mr. FULBRIGHT. Mr. President, I do
not want to make a point of it. I do not
happen to agree with the Senator from
North Carolina. He has fallen prey to
the same illusions as many other people
in the country, that the only person who
is Interested in the security of the United
States is the President of the United
States.
I remember the first time that Sec-
retary of Defense Laird came up to tes-
tify before the Foreign Relations Com-
mittee. He emphasized that now that
he had left the Congress and gone over
to the Office of Secretary of Defense, he
had a very special responsibility for the
security of the United States that over-
roue everything else and that he was the
only man qualified to say what was in
the interest and security of the United
States.
I am afraid, I must -say, with all due
deference to a man rendering such im-
portant service to our country today, that
I think his statement was a statement to
the effect that the Congress had no in-
terest in the security of the United States
or in protecting the Nation's Institutions.
I do not believe that. I think that the
President can be misled more easily than
Congress as to what is in the security of
the United States and as to what is a
proper way to protect the independence
of Arkansas or North Carolina.
I do not accept the basic assumption
that all wisdom resides in the White
House, no matter who the occupant is.
Mr. ERVIN. Mr. President, will the
Senator yield?
Mr. FULBRIGHT. Mr. President, I
yield for a question.
Mr. ERVIN. Mr. President, I want to
say that the Senator from North Caro-
lina does not adhere to the assumption
that the Senator from Arkansas insin-
uates he does on this occasion.
The Senator from North Carolina has
fought hard to sustain the doctrine of
the separation of powers and to secure
the recognition of the powers of the Con-
gress. However, the Senator from North
Carolina will fight equally as hard to
sustain the constitutional powers of the
President.
The Senator from North Carolina
thinks that the Founding Fathers were
acting in great wisdom when they sep-
arated the powers of Government by
making one public official, the Presi-
dent of the United States, the Com-
mander in Chief of the Army and Navy
of the United States, rather than 100
Senators and 435 Representatives.
I thank the Senator from Arkansas
for his courtesy.
Mr. HUMPHREY. Mr. President, the
Senate's consideration of the war powers
bill comes at a critical juncture in our
history.
If the Senate adopts the legislation as
introduced by my distinguished col-
league from New York, it will mark the
end of one era and the beginning of
another.
For more than a quarter of a century,
we have experienced a cold war, regional
hot wars, and intermittent and pro-
longed conflicts with varying levels of
American Involvement.
At the moment that we are at the
threshold of at last halting American
involvement in our longest was, the Con-
gress appears ready to redefine its own
war powers and those belonging to the
President.
It its clear that since the end of the
Second World War fast changing mili-
tary technology and new codes of inter-
national political and military behavior
have combined with growing Presidential
power in spheres of both domestic and
foreign policy. The result has been the
accumulation of warmaking power in
the hands of one man-the President of
the United States.
This state of affairs was known well
by the men who wrote our Constitution.
They had lived under the rule of a
British king. They knew all too well that
the absolute warmaking authority of a
sovereign ruler was oppressive to his sub-
jects, forced to pay for and die in wars
declared in the "national interest" by a
monarch.
Determined to avoid the oppression of
royal wars, the framers of our Constitu-
tion granted the Congress the authority
to declare war and the President was
vested with the power of Commander in
Chief.
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CONGRESSIONAL RECORD -SENATE July '20, I A
In 1789 Jefferson wrote to Madison
and commented on this vital separation-_
of authority :
We have already given in example one ef-
fectual check to the Dog of WBr by trans-
ferring the power of letting him loose from
the Executive to the Legislative body, from
those who are to spend to those who are to
pay
The power to initiate war was firmly
lodged with the Congress. As Madison
stated, speaking of this principle:
That the executive has no light, in any
case, to decide the question, whether there
is or is not cause for declaring war ...
Congressional possession of warmak-
Ing authority is firmly planted in our
Constitution. It has been upheld by our
highest court, by our Presidents and by
great constitutional experts.
Yet today-even as we speak-the
Armed Forces of the United States are
deployed in a war without the approval
of the Congress. They are deployed, be-
cause the President believes it in the
national interest to bomb Cambodia-to
make war by skirting article I, section 8
of the Constitution. This, of course, is
not the first instance of a dangerous
abuse which we might call "Presidential
war." We have seen it before in this and
other administrations.
When a President initiates war, he is
taking a power away from the Congress.
His act is unconstitutional.
He is breaking the law.
The legislation we are considering to-
day will, in fact, make more remote the
possibility that we will again be involved
in a presidentially initiated.war. It will
do so not by reshaping or altering the
constitutional powers of the President
and the Congress. Rather, the war pow-
ers bill defines, delineates, and in some
ways refines the powers vested in each
branch of Government by the Constitu-
tion.
The central focus of the bill is unde-
clared wars. It governs the use of Armed
Forces in the absence of a formal decla-
ration of war. It is true that in today's
world, formal declaration of war may
be obsolete. But the authority of the
Congress to authorize the initiation of
war is certainly not obsolete.
Critics of the war powers bill have
stated that it is not needed-that his-
torical precedents are sufficient to pro-
vide adequate safeguards in the ab-
sence of a, formal declaration of war.
I do not believe this to be the case.
The steady accretion of Presidential
warmaking authority must be halted
and limited by new statutory definitions
of warmaking authority.
The bill introduced by Senator JAVITS
is precise in its definition of circum-
stances and conditions when American
Armed Forces can be introduced into
hostilities. Section 3 of the war powers
bill delineates by statute the implied
emergency warmaking powers of the
President. The further 30-day limita-
tion on emergency actions taken under
section 3 of the act reconciles the need
for such actions in a day of instant com-
munication with the necessity for con-
gressional involvement in deciding great
questions of war and peace.
It is important to note that this meas-
ure is not designed to tie a President's
hands or slow our response to attack.
The War Powers Act recognizes the need
for quick response to attack. But it does
not provide for the prolonged commit-
ment of American forces without the
approval of Congress.
In redressing a severe. constitutional
imbalance, the Congress is in a sense also
stating publicly that it is ready to share
the terrible burdens of committing a na-
tion to war.
This power has gone unshared for too
many years. The result has been the
prolongation of a tragic and costly war,
the embitterment of a generation, and
severe strains on our constitutional sys-
tem of democratic government.
The war powers bill offers the Con-
gress an opportunity to restore the doc-
trine of shared power between coequal
branches of Government.
The war powers bill offers the Con-
gress an opportunity to prevent future
American involvement in never-ending
wars.
And, finally, the war powers offers the
Congress an opportunity to stop the seri-
ous erosion of its own authority in a field
vital to! the health and security of our
Nation.
Mr. 1i'ULBRIGHT. Mr. President, I
call up amendment No. 387.
The PRESIDING % OFFICER. The
amendment will be stated.
The assistant legislative clerk read as
follows:
On page 3, line 1, strike out through line
6 on page 4 and insert in lieu thereof the
following:
"SEC. 3. In the absence of a declaration of
war by the Congress, the Armed Forces of
the United States may be employed by
the President only-
"(1) to respond to any act or situation that
endangers the United States, its territories
or possessions, or its citizens or nationals
when the necessity to respond to such act or
situation in his judgment constitutes a na-
tional emergency of such a nature as does
not permit advance congressional authoriza-
tion to employ such forces; or"
On page 4, line 7, strike out "(4)" and
insert ixl lieu thereof "(2) ".
On page 5, line 9, strike out "(4)" and
Insert in lieu thereof "(2)".
Mr. 7 'ULBRIGHT. Mr. President, be-
fore I make these remarks, I certainly
want tol reiterate my admiration and re-
spect for the sponsors of this legislation.
We have had excellent hearings, and
they have produced some very useful
information on one of the most im-
portant aspects of our Government. And
the differences of view, as I have already
stated, are related not to the objective
of the legislation, but to some of the pro-
visions that go to the means or, as the
Senator from New York likes to call it,
the methodology of this effort to bring
a greater responsibility on the part of
the Congress into the warmaking activ-
ities of our country.
Obviously we all know that grows out
of the extreme tragedy and the extreme
injury, the enormous injury, that has
occurred to this country as a result of the
happenings during the last 10 years.
Mr. President, although the intent of
the bill Is unexceptionable, it seems to me
that the bill could be improved in several
respects.
Mr. President, I must say that we dis-
cussed this and I - offered a similar
amendment in the committee. So, it is
not a new attitude on my part.
The first problem lies with section 3,
which catalogs the various conditions
under which the President would be
permitted to make emergency use of the
Armed Forces. These conditions, in my
view, go too far in the direction of Exevu-
tive prerogative, especially in allowing
the President to take action not only to
"repel an armed attack"-With which we
all agree, I think-but also to "forestall
the direct and imminent threat of such
an attack" on the United States or its
Armed Forces abroad. The danger here
is that these provisions could be can-
strued as sanctioning a preemptive, or
first strike, attack solely on the Presi-
dent's own judgment, Should the Presi-
dent initiate such a preemptive attack,
the 30-day limitation provided for in
sections 5 and 6 of the bill might prove
to be ineffective, or indeed irrelevant, as
a congressional check on the Presider..---
all the more for the fact that the 30=play
limit on Presidential= discretion Is by no
means absolute. The provisions authoriz-
ing the President to "forestall the direct
and imminent threat" of an attack cculd
also be used to Justify actions such as the
Cambodian intervention of 1970 and the
Laos intervention of 1971, both of which
were explained as being `necessary to
forestall attacks on American forces
The emergency powers of the President
spelled out in section 3 of the committee
bill in their extensiveness may have the
unintended effect of giving away more
power than they withhold. The extexulon
of the President's power to use the Armed
Forces to "forestall" an attack before it
takes place may well go beyond the
President's constitutional authority. Un-
der the Constitution strictly construed,
besides a "sudden attack" on U.S.
territory, the only gjhher circumstar..ces
warranting unauthorized Presidential
use of the Armed Forces are an
attack on the Armed Forces of the United
States stationed outside of the country
and an imminent threat to the live:, of
American citizens abroad, the latter of
which would justify only a brief military
operation for purposes of evacuation.
The bill appears to me to deal more
or less satisfactorily in paragraph (3)
of section 3 with the matter of protect-
ing the lives of Americans abroad; it goes
too far in paragraphs (1) and (2), how-
ever, in allowing of discretionary Presi-
dential action to "forestall the direct
and imminent threat" of an attack on
the territory or Armed Forces of the
United States.
Rather than spell out what amounts
to Presidential discretion to mount; a
preemptive attack, I am inclined toward
a simple abbreviated provision allowing
emergency use of the Armed Forces by
the President. Alternately,'there may be
merit in simply abstaining from the at-
tempt to codify the President's em er-
gency powers, which is the approach of
Congressman ZASLOCxi's bill, House Jcint
Resolution 542, adopted by the House of
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Representatives on July 18 by a vote of
244 to 170. In practice, it Is exceedingly
difficult to draw up a list of emergency
conditions for Presidential use of the
Armed Forces which does not become so
long and extensive a catalog as to con-
stitute a de facto grant of expanded
Presidential authority. The list of con-
ditions spelled out in section 3 of the
committee bill, is, in my opinion, about
as precise and comprehensive a list as
can be devised, and its purpose, I fully
-recognize, is not to expand Presidential
power, but to restrict it to the categories
listed. Nevertheless, I am apprehensive
that the very comprehensiveness and
precision of the contingencies listed in
section 3 may be drawn upon by future
Presidents to explain or justify military
initiatives which would otherwise be diffi-
cult to explain or justify. A future Presi-
dent might, for instance, cite "secret"
or "classified" data to justify almost any
conceivable foreign military initiative as
essential to "forestall the direct and im-
minent threat" of an attack on the
United States or Its Armed Forces
abroad.
For these reasons I am much inclined
either to say nothing about the Presi-
dent's emergency powers as in the House
bill, or to include a'simple substitute for
paragraphs (1), (2), and (3) of section
3 of the committee bill, in which it would
simply be recognized that the President,
under certain emergency conditions, may
find it absolutely essential to use the
Armed Forces without or prior to con-
gressional authorization. This approach
too has its dangers as it would of ir-
responsible or extravagant interpreta-
tion, but at least it would place the bur-
den of accountability squarely upon the
President, where It belongs, and it would
also of course be restricted by the 30-
day limitation specified in sections 5 and
6 of the bill.
Mr. President, I wish to emphasize this
particular point by saying that the mat-
ter is one of judgment on the psychology
of a reasonable person. If we undertake
In advance to specify the conditions un-
der which the President can act, he can
rationalize whatever the circumstances
are to fit those designated conditions.
He will then feel free to proceed as he
sees fit and feel authorized in doing it.
Without that, I think he would do one
of two things: He would be extremely
cautious, if it is at all doubtful, or, he
would consult Congress.
It is the collective judgment of the
Congress and the President working to-
gether which I think our system regards
as of fundamental importance, and it is
that aspect of it which this and many
other efforts we have engaged in seek
to emphasize, that is, that it be a collec-
tive judgment. It is my own judgment of
the psychology of the situation that the
President, having these specifics in hand,
would say, "Well, those are the condi-
tions that exist" and proceed out of
hand, either without reflecting fully
himself upon the conditions, or without
consulting Congress to any degree at all.
Under the language of paragraphs (1),
(2), and (3) of section 3 of the bill the
Executive could cite fairly specific au-
thority for the widest possible range of
military initiatives. Under the simpler,
more general approach I propose, the
President would remain free to act, but
without the prop of specific authoriza-
tion; he would have to act entirely on
his own responsibility, with no advance
assurance of congressional support. A
prudent and conscientious President,
under these circumstances, would hesi-
tate to take action that he did not feel
confident he could defend to the Con-
gress. He would ? remain accountable to
Congress for his action to a greater ex-
tent than he would if he had specific
authorizing language to fall back upon.
Congress, for its part, would retain its
uncompromised right to pass judgment
upon any military initiative taken with-
out its advance approval.
This reminds me very much of the use
that President Johnson made of the
Tonkin Gulf resolution. He used to pull
it out whenever anyone raised any ques-
tion about it, and point to the language.
He never did point out that he obtained
that language by misrepresenting the
facts in the case of Tonkin Gulf.
Confronted with the need to explain
and win approval for any use of the
Armed Forces on the specific merits of
the case at hand, a wise President would
think carefully before acting; he might
even go so far as to consult with Mem-
bers of Congress as well as with his per-
sonal advisers before committing the
Armed Forces to emergency action. For
these reasons, it appears to me that a
general, unspecified authority for making
emergency use of the Armed Forces,
though superficially a broad grant of
power, would In practice be more restric-
tive and inhibiting than the specific
grants of emergency power spelled out
in paragraphs (1), (2), and (3) of sec-
tion 3 of the committee bill. Alternate-
ly-perhaps preferably-the same objec-
tive could be achieved by simply leaving
out any attempt to codify the President's
emergency powers, which is the approach
of the House bill.
To deal with these difficulties I recom-
mend the substitution of the following
for the introductory clause and first
three paragraphs of section 3 of the com-
mittee bill-page 3, line 1, through page
4, line 6:
SEC. 3. In the absence of a declaration of
war by the Congress, the Armed Forces of
the United States may be employed by the
President only-
(1) to respond to any art or situation that
endangers the United States, its territories
or possessions, or its citizens or nationals
when the necessity to respond to such act or
situation in his judgment constitutes a na-
tional emergency of such a nature as does
not permit advance congressional authoriza-
tion to employ such forces.
Another, related problem arises in con-
nection with section 5 of the committee
bill, which specifies a 30-day limitation
for emergency use of the Armed Forces
by the President. Under the committee
bill, this limitation allows of an excep-
tion which might in practice prove to be
a loophole so gaping as to nullify the 30-
day limitation entirely.
The committee bill states that the
emergency use of the Armed Forces by
the President may be sustained beyond
the 30-day period, with or without con-
S 14203
gressional authorization, if the Presi-
dent determines that unavoidable mili-
tary necessity respecting the safety of
the Armed Forces requires their con-
tinued use for purposes of bringing about
a prompt disengagement from hostili-
ties. In this connection, it will be re-
called that President Nixon prolonged
the Vietnam war for 4 years under the
excuse of unavoidable military necessity
respecting the safety of the Armed
Forces. This escape clause could reduce
to meaninglessness the entire provision
limiting the President's emergency power
to 30 days. The approach taken by the
House bill is in this respect much su-
perior inasmuch as it allows of no such
escape clause. Section 4(b) of the bill
passed by the House states simply that,
within the 120-day emergency period
specified in the House bill :
The President shall terminate any com-
mitment and remove any enlargement of
United States armed forces . unless the
Congress enacts a declaration of war or a spe-
cific authorization for the use of United
States Armed Forces.
Although I prefer the 30-day emer-
gency period of the Senate Foreign Re-
lations Committee's bill to the 120-day
emergency period of the House bill, the
latter, nonetheless, provides more effec-
tively for congressional authority to de-
cide whether or not any given military
action may be continued beyond the
emergency period.
Another, similar problem arises in con-
nection with section 6 of the committee
bill, under which Congress could require
the termination of military action with-
in the 30-day emergency period only by
act or joint resolution, which of course
would be subject to veto by the Presi-
dent.
In addition, section 6 of the committee
bill, like section 5, makes a complete ex-
ception to the congressional termination
power in any case where the President
judges that "unavoidable military neces-
sity respecting the safety of the Armed
Forces" requires their continued use in
the course of bringing about a prompt
disengagement from hostilities. The re-
quirement of Presidential signature for .
an act of termination, combined with the
exception of unavoidable military neces-
sity, reduce to meaninglessness the os-
tensible power to Congress to terminate
hostilities within the 30-day emergency
period. The approach taken by the House
bill in this respect, as in the case of mili-
tary action beyond the initial emergency
period, seems much superior. Section
4(c) of the House bill would authorize
Congress to require the Presdient to ter-
minate military action within the emer-
gency period simply by concurrent re-
solution. Since a concurrent resolution
does not require the signature of the
President, this approach would eliminate
the possibility of Presidential veto of a
congressional act of termination. Fur-
thermore, in the matter of terminating
military action within the emergency
period as well as allowing it to continue
beyond the emergency period, the House
bill contains no such gaping escape hole
as the unavoidable military necessity
spelled out in sections 5 and 6 of the Sen-
ate committee bill. The House bill, there-
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CONGRESSIONAL RECORD - SENATE July 20; !1 i 3
fore, provides not only for congressional
authority to decide whether military ac-
tion will be sustained beyond the emer-
gency period; it also provides more ef-
fectively for congressional authority to
terminate military action within the
emergency period.
Mr. President, I have been very much
troubled by the possible effect, of section
6, in which Congress seems to be saying
or assuming that it does not already have
the authority to legislate in these cases.
It gives itself the power to kegislate and
then it takes away that power where the
President has determined and certified
to Congress in writing that there is an
unavoidable military necessity respect-
ing the safety of the Armed forces.
This contemplates action. so similar
to that which has happened in Cam-
bodia and Southeast Asia that it raises
very serious problems in my mind. It
seems to me that section 8 -would dele-
gate power to the President to prevent
Congress from doing what it can now do,
by act or joint resolution, to terminate
hostilities.
I want to read, just for the record,
to emphasize what I have in mind, sec-
tion 6:
The use of the Armed Forces of the United
States in hostilities, or In any situation
where imminent involvement -to hostilities
is clearly indicated by the circumstances,
under any of the conditions -=described in
section 3 of this Act may be terMinated prior
to the thirty-day period specifd in section
5 of this Act by an Act or joint resolution
of Congress, engaged pursuant to section 3
(1) or 3(2) of this Act requires the con-
tinued use of such Armed Forces in the
course of bringing about a prompt dis-
engagement from such hostilities.
It seems to me quite clear we already
have that power to terminate, without-
this bill. That is power which Congress
already has, but under section 6 the
President could take it away, by deter-
mining and certifying to Congress in
writing that there is an unavoidable mil-
itary necessity respecting the safety of
the Armed Forces.
Mr. President, it has occurred to me,
in reading this, that if this becomes law,
then the actions which were taken with.
regard to the use of our fortes in Cam-
bodia-for example the Cooper-Church
amendment-would be prohibited. In
other words, this action weld seem to
me to abrogate a power that already
belongs to Congress and which Congress
has exercised.
To some extent, that power was ex-
ercised in the case of Cambodia, but it
was not effective because there was a
loophole with regard to the bombing;
but insofar as the terms provided, it was
effective. But article 6 would seem, now,
to take away and to reduce the existing
power of Congress by an act to terminate
hostilities.
The Cooper-Church amendment was
hailed at the time as a significant move
on the part of Congress to reduce at least
our exposure and a continuation of our
activities in Cambodia. It did not exclude
use of the bombers, although I think the
subsequent use, and even the prior use-
which we did not know about--went far
beyond that contemplated by the lan-
guage and intent of the Cooper-Church
amendment.
In any case, this bothers me very
much. I would certainly hate to realize
that this should be found to have re-
moved from Congress one of the existing
powerswhile we think we are trying to
restrict the power of the President. It
would certainly, indeed, be ironic if, in-
stead of restricting the power of the
President, we restricted the power of
Congress to terminate hostilities once
they had begun.
Mr. President, I yield the floor.
Mr.. AVI'I S. Mr. President, I yield my-
self, in opposition, as much time as I
may require.
Mr. President, the distinguished chair-
man of the Committee on Foreign Rela-
tions made the same effort in 1972 when
the bill! was last considered, with one ex-
ception. At that time, he also had in-
cluded; in the same amendment some
special, provision respecting the use of
nuclear weapons.
This consideration which we are asked
to undertake now is only a new consid-
eration, in that that particular provision
has been omitted. It was debated and
defeated in the committee markup ear-
lier this year.
The fundamental issue is this: Shall
the Cotrigress at the time that It de-
lineates and fights for its own power,
specify; the parameters of its power in
order to specify the parameters of the
President's power? Or shall it not? The
drafters of the bill came down on the
side of delineating both in order to leave
both certain rather than both uncertain.
If we avant to delineate a part of the
whole, then we have to delineate the
other part, and that is what we tried to
do.
The amendment of the Senator from
Arkansas goes precisely the other way
and adopts what is really by implication
the approval of the House bill. We ap-
proach' it by acknowledging that a Pres-
ident has-as the Founding Fathers
anticiplated-the authority to repel
sudden' attacks. That was why the 1787
Constitutional Convention, in its final
markup, changed the wording from
"make war," which is the way it was first
brought in in the Constitutional Conven-
tion, and as it was in the Articles of
Confederation, to "declare war."
They said they wanted to leave the
President the power to repel sudden at-
tacks. They were very prescient, because
the word "sudden" is critically impor-
tant, "Sudden" is the essence of "emer-
gency." And from this we have deline-
ated and codified the emergency situa-
tions in updated, contemporary language
and context.
So the question is, What is needed to
repel an attack in point of time frame
as well as force?
We can regulate the time frame. We
have taken a period which seemed rea-
sonable, 30 days, and said that is the
time frame.
This,, in order to be effective as a de-
lineation of authority between the Pres-
ident and Congress, requires that we con-
firm him in his authority as well. There
is, In nay judgment, reliable authority for
the way in which we have confirmed the
Preside{rit in his authority, and that is the
testimony of Professor Bickel of Yale,
one of the really outstanding experts in
the field. He testified on this bill only
a few months ago, on April 11, 1973.
This is what he said:
A second question that is raised about the
declaration of Presidential power in section
3 is whether it would not be better in any
case to leave independent, exclusive Presi-
dential powers unstated, so that in any in-
stance of their exercise the responsibility will
clearly be the President's alone, and so that
no words have been put on paper, h"ever
carefully and precisely, which under any cir-
cumstances might be given a latitudinarian
construction.
That is the very argument made by
Senator FULBRIGHT in favor of his amend-
ment.
Professor Bickel then goes on to may:
The answer to this question that I find
persuasive is that the actual draft of section
3 of S. 440 is - precise and is, on any fair
reading, not only a full Implementation of
the constitutional grant to the President,
but also more restrictive than many a claim
of power that has in past years been made
by Presidents, and Indeed acted upon.
Moreover, as a matter of effective drafting,
it seems to me impossible to state with any
clarity what is reserved to Congress without
stating first what belongs to the President.
The task is one of linedrawing, of separcting
one thing from another, and in doing sc one
must state what is on both aides of the line.
This, it seems to me, is very authorita-
tive support for the position I have taken.
Mr. President, the 30-day period, wiich
ties into this specification of what ,on-
stitutional powers the President practi-
cally has, takes cognizance of the living
fact that an incident can become a war.
Therefore, we give that spell of time in
which the incident, may perhaps cease
and not become a war, in which case
there would be no ground for coiUres-
sional action. Where the incident is or
is about to become a war, the War Pow-
ers Act becomes effective.
Second, we delineate the powers of
the President for the purpose ofmaking
more clear the powers of Congress; and
how they are to intermesh. You cannot
delineate a part unless you delineate the
other parts to encompass the whole. I
think this is fundamental to this bill.
We in Congress cannot assume thas we
are going to get off scot-free.
We must respect the President's pow-
er, while we use this opportunity tc re-
establish our own, and they are not a bit
inconsistent. This is really what thi bill
is all about.
I regard the specification of the au-
thority of the President to be a critically
important element of the bill. Specificity
is the very thing we have all been Mak-
ing for. That is why we have been com-
plaining that the "President's men," so-
called, claim the moon and the stars
for him. We have some truly extraordi-
nary quotations. I will not delay the Sen-
ate with reading long quotations, but we
have some truly long quotations of what
the so-called President's men-to wit, the
people' who speak of the "strong" P:?esi-
dency-have been claiming on the part of
the President. They claim very illimit-
able, self-defined authority, especially
respecting war and "national security."
Let me read just a few of them, so
that the Senate may have an idea of the
effort to bring into realistic focus the
powers of the President. For example,
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President Johnson said, in speaking of
the Gulf of Tonkin resolution on August
18, 1967:
We stated then, and we repeat now, we did
not think the resolution was necessary to do
what we did and what we're doing. But we
thought it was desirable and we thought if
we were going to ask them [Congress] to stay
the whole route and if we expected them to
be there on the landing we ought. to ask
them to be there on the takeoff.
The legal officer of the State Depart-
ment, testifying in 1966, spoke as fol-.
lows:
There can be no question in present cir-
cumstances of the President's authority to
commit U.S. forces to the defense of South
Vietnam. The grant of authority to the
President in Article II of the Constitution
extends to the actions of the United States
currently undertaken in Vietnam.
One final statement. Secretary Ache-
son really threw down the gauntlet to
Congress when he testified in respect to
President Truman's plan to station six
divisions of U.S. troops in Europe. He
said:
Not only has the President the authority
to use the Armed Forces in carrying out the
broad foreign policy of the United States and
implementing treaties, but it is equally clear
that this authority may not be interfered
with by the Congress in the exercise of powers
which it has under the Constitution.
Mr. President, in view of these very
broad claims of Presidential authority
to commit us to war and to wage war, if
we do not specify statutorily the Presi-
dent will make his own specifications tai-
lored to his situation at the moment. This
is just what has become intolerable.
I believe one thing is critically im-
portant. If we adopt this amendment, we
are defying, it seems to me, the very
purpose and intent of our reason for
considering the war powers bill, and that
is that there is no such thing as inde-
pendent, absolute, discretionary author-
ity in the President of the United States
when it comes to war.
He has to join with Congress. We un-
derstand the exigencies and we provide
for them, but essentially it provides he
does not have'a free-wheeling mandate,
limited only by time; for the effect of the
Fulbright amendment would be to give
him absolute, free-wheeling,'self-defined
authority.
I have heard some words of the Sen-
ator from Arkansas (Mr. FULBRIGHT)
which deeply disturbed me when I heard
them, which carry out this philosophy,
which says to the President, "You have
30 days to do what you want." The Con-
stitution does not give that to him and
neither does this bill. Ile has 30 days to
defend the United States and its people
in an emergency without statutory au-
thorization. He does not have 30 days to
do anything. That is not in the Consti-
tution and it should not be, the law.
I feel that the specificity we give him
-deals with the Constitution as conceived
and written, with certain pragmatism in
terms of the security of the country and
at the same time there is a rationaliza-
tion of power given the President with
body. The House approach is much more be withdrawn, almost one by one, from
like the Fulbright approach. We think it a theater such as Southeast Asia over. a
is wrong and very inadequate to the long period of time.
occasion. I wish to ask the Senator from New
I think it would be most unwise for the York a question. Will the Senator yield
Senate to give away a considered judg- for a question?
ment which has gone through so much Mr. JAVITS. Yes.
distillation and which most recently was Mr. EAGLETON. I direct the atten-
passed by a vote of 68 to 16 in 1972. tion of the Senator from New York to
Mr. President, I hope the amendment page 6 of the bill, section 5, line 22,
is rejected. where the words "prompt disengage-
The PRESIDING OFFICER. Who ment" appear. I wish to refresh the Sen-
yields time? ator's recollection, and correct me if I
Mr. MUSKIE. I yield 3 minutes to the am wrong. We had a colloquy a year
Senator from Missouri. ago on the same subject and we dis-
The PRESIDING OFFICER. The Sen- cussed the meaning of "prompt disen-
ator from Missouri is recognized. gagement." In the opinion of the
Mr. EAGLETON. Mr. President, I shall Senator from New York, would "prompt
be brief. disengagement" be so broad as to permit
In his statement with respect to sec- the withdrawal of troops over 3 or 4
tion 3 of the bill, the chairman of the years?
Committee on Foreign Relations paid Mr. JAVITS. Not remotely. "Prompt
particular attention to section 3, subsec- disengagement" means as soon as the
tions (1) and (2) relating to the Pres- tactical security situation permits. Not
strategi the good "tactical
ident's authority to forestall an attack. even
And he also mentioned the rescue fea-
tures of subparagraph (3). obligation of the President, which the
I share some of his apprehension with bill seeks to import.
respect to the forestall clauses. I did not Mr. EAGLETON. We cannot pinpoint
include them in my original draft, but in it to a clock or a calendar, but I take it
the compromise bill it was included. the Senator means weeks or months and
rected I think the thrust of the Senator from not a if i JAVITS. year or I cannot conceive of that.
Arkansas' argument would better di- It woMr. uld be straining the imagination or
on tif in some forestall e clauses, ma manner he which I would would focus
aee credulity. Hopefully, it would never be
discre- more than days, or even hours. After
may the h grant too much h Presidential agree
m
tion. But I think his approach with re- all, we have exceptional logistical capa-
spect to amendment No. 387 is instead bilities for withdrawal.
a general articulation of Presidential Mr. EAGLETON. I thank the Senator.
authority as it is interpreted by the Ex- Mr. FULBRIGHT. Mr. President, what
ecutive today. is the time situation?
The Senator's other remarks go beyond The PRESIDING OFFICER. The Sen-
the Fulbright amendment because the ator from
on the amendment. has gr10 it The Sena-
section amendment deals only with
section 3 of the bill. The Senator went for from Maine has no time on the
on to analyze and comment on sec- amendment.
Mr. President, I
tions 5 'and 6, the 30-day authorization Mr. period sections, and he paid specific at- will
ment: time after
or two willing very to yield brief comments.
tention ." to the words "prompt disengage- Mr. President, the Senator from New
This, too, is a troublesome passage of York is not present. I was only going to
the bill. Last year when it was being de- comment on one of the statements he
bated between the Senator from New made a moment ago. He did not address
York, the Senator from Mississippi, and himself to my question about section 6,
me, we tried to give a meaningful defini- that Congress now, without any doubt,
tion to "prompt disengagement." has the authority to pass an act or joint
What we had in mind in drafting the resolution restricting an ongoing war or
section was the protection of Armed activity. We just' proved that in the case
Forces for the purpose of expeditious dis- of Cambodia.
seems to me, restricts that
engagement only. The President could Section 6, not go off on a more expanded mission, by giving to the President the right to
or get into an offensive war, prevent congressional action by simply
Under that provision the troops are certifying the unavoidable necessity of
to promptly disengage and they are to using the Armed Forces, which he has
be protected solely for the purpose of done on several occasions.
expeditious disengagement. I am a little I think that is unconstitutional. I do
vague on this but I had an exchange not believe that Congress can by law say
with the Senator from New York with that Congress would not have the right
respect to how long "prompt disengage- to pass an act within the realm of its
ment" might take. I asked if it could be own constitutional authority.
as much as 3 or 4 years to promptly dis- The Cooper-Church provision said that
engage, and he said "No," that "prompt there should be no use of our forces in
disengagement" had in mind, by use of Cambodia. And here in section 6, it seems
the word "prompt," that it could be a to me, it says that we cannot do that.
matter of weeks or months, but certainly I question- its constitutionality. I do
not years. not think that Congress can deprive it-
I would be fearful, as would the Sena-, self of the power to pass an act or to
regard to war. for from Arkansas, if we codified by
Finally, this will be a very important "prompt disengagement" some eternal,
issue in the conference with the other everlasting process by which troops could
take any kind of Constitutional action.
The Senator from New York did not
address himself to that. However, I real-
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CONGRESSIONAL RECORD -SENATE July
20, 1973
use that there are certain differenences war and to the use of United States Armed
of view as to this approach, He likes the Forces !abroad.
of opinion. None of us know for sure. SEC. 4. (a) Each report submitted pursuant
The Senator from New York gives his to section 3 shall be transmitted to the
view of what prompt disengagement Speaker of the House of Representatives and
means. Of course, if he were the Presi-
dent of the United States said we could
count on it, I would agree with that.
"Prompt disengagement" from Indo-
china has been underway for 4 years.
The President came into once and said
he had a plan to end the war in Vietnam.
It has been approximately 4 years. It is
not really ended yet, although the major
part has ended.
Mr. President, I yield back the re-
mainder of my time.
The PRESIDING OFFICER. All time
has been yielded back. The question is
on agreeing to the amendment of the
Senator from Arkansas (putting the
question).
The amendment was rejected.
The PRESIDING OFFICER. The bill
is open to further amendment.
Mr. GRIFFIN. Mr. President, I call up
my Amendment No. 368.
The PRESIDING OFFICER. The clerk
will report the amendment.
The legislative clerk proceeded to state
the amendment.
Mr. GRIFFIN. Mr. President, I ask
unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The amendment reads as follows:
Beginning with line 1 on page 2, strike out
through the end of the bill and insert in lieu
thereof the following:
CONSULTATION
SEC. 2. It Is the sense of the Congress that
the President should seek appropriate con-
sultation with the Congress before involving
the Armed Forces of the United States in
armed conflict, and should oantinue such
consultation periodically during such armed
conflict.
to the President pro tempore of the Senate
on the same day. Each report so transmitted
shall be referred to the Committeeon Foreign
Affairs of the House of Representatives and
to the Committee on Foreign Relations of the
Senate,! and each such report shall be printed
as a document for each House.
(b) If Congress is not in session when the
report is transmitted, the Speaker of the
House of Representatives and the President
pro tempore of the Senate shall convene their
respective House of Congress to consider any
such report of the President.
(c) Not later than five days after receiving
any such report, unless a majority of such
committee shall report out a bill or joint
resolution approving the actions taken by the
Presidei t, a bill or joint resolution prohibit-
ing the! expenditure of any funds, from such
date as St considers appropriate, shall be re-
ported with respect to such commitment or
enlarge ent.
(d) (1)1 A bill or joint resolution reported
under subsection (c) of this section shall be
highly privileged in each House. It-shall be in
order at any time after the third day follow-
ing the' day on which such a bill or joint
resolution is reported to move to proceed to
its consideration (even though a previous
motion to the same effect has been disagreed
to). Such a motion to proceed to its con-
sideration shall be highly privileged and shall
not be debatable. An amendment to the mo-
tion sill not be in order, and it shall not
be in o der to move to reconsider the vote
by which the motion is agreed to or dis-
agreed to.
(2) Debate on such bill or joint resolution,
and all amendments thereto, shall not exceed
five consecutive calendar days, which shall
be divided equally between those favoring
and those opposing the bill or joint resolu-
tion. Once debate on such bill or joint reso-
lution has begun, no other measure or matter
may be considered by that House. A motion
to recommit the bill or joint resolution shall
not be in order, and it shall not be in order
to move to reconsider the vote by which the
--, .u -- V rltil'- ' " (3) Mgtions to postpone, made with respect
wethhut a declaration of war by the Con- to the consideration of such a bill or joint
resolution and motions to proceed to the
(1) commits United States Armed Forces consideration of other business, shall be
to hostilities outside the territory of the decided without debate.
United States, its possessions a2ld territori- (4) A~peals from the decisions of the
ties; or Chair relating to the application of the
(2) commits United States Armed Forces rules of the Senate or the House of Repre-
equipped for combat to the territory, air- sentativgs as the case may be, to the proce-
space, or waters of a foreign nation, except dure relating to such a bill or joint resolution
for deployments which relate solely to supply, shall be decided without debate.
replacement, repair, or training of United (e) If, prior to the passage by a first House
States Armed Forces; or of Congress of any such bill or joint resolu-
(3) substantially enlarges United States tion of that House, such House receives from
Armed Forces equipped for combat already the second House such a billor joint resolu-
located in a foreign nation; tion, then the following procedure applies:
the President shall submit promptly to the (1) Such bill or joint resolution received
Speaker of the House of Representatives and from th second House shall be reported to
to the President pro tempore of the Senate the first House not later than three days after
a report, in writing, setting forth- being received.
(A) the circumstances necessitating his (2) On any vote on final passage of such a
action; bill or joint resolution of the first House,
(B) the constitutional and legislative pro- such a bill or joint resolution of the second
visions under the authority of which he took House shall be automatically substituted for
such action; the bill or joint resolution of the first House.
(C) the estimated scope of activities; (f) If ;there are differences in such a bill
or joint resolution between the Senate and
(D) the estimated financial Cost of such House oft Representatives, conferees on the
commitment or such enlargement of forces; part of the Senate and the House of Repre-
and sentatives shall be appointed not later than
(E) such other information the Presi- two days after the House of Congress passing
dent may deem useful to the Congress in the the bill or joint resolution last passes such
fulfillment of its constitutional responsibili- bill or jdi nt resolution, unless within those
ties with respect to committing the Nation to two two flays both Houses of Congress agree
upon the same total amount of outlays of
the United States Government with respect
to such fiscal year without the convenag of
a committee of conference. Upon appoint-
ment of conferees, the committee of confer-
ence shall meet immediately to resolve their
differences. The provisions of subsection (d)
shall be applicable with respect to the con-
sideration of any report ' of a committee of
conference on any bill or joint resolution.
(g) Subsections (b) -(f) of this section are
enacted by the Congress-
(1) as an exercise of the rulemaking pow-
ers of the Senate and the House of Riepre-
sentatives, respectively, or of that House to
which they specifically apply; and such rules
shall supersede other rules only to the extent
that they are Inconsistent therewith; and
(2) with full recognition of the constitu-
tional right of either House-to change such
rules (so far as relating to the procedwe in
such House) at any time, in the same manner,
and to the same extent as in the case of any
other rule of such House.
SAFETY OF UNITED STATES ARMED LORCI S
SEC. 5, The commitment of United q ,a tes
Armed Forces or the enlargement of those
forces with respect to the actions of the Pres-
ident referred to in any report made under
section 3 of this Act shall be continued or
terminated only in accordance with law and
the Constitution. However, no provisto't of
law shall be construed as terminating any
such commitment or enlargement when the
President determines and certifies to Con-
gress unavoidable military necessity res.Iect-
ing the safety of the United States Armed
Forces requires the continued use of much
Armed Forces for the purpose of bringing
about a prompt disengagement of t:tose
forces.
Mr. GRIFFIN. Mr. President, last year,
I reluctantly voted for a measure which
was similar in many respect to the one
before us now. I indicated then that I
had serious reservations about its con-
stitutionality, and I hoped that the
House would make improvements it it.
Earlier this year I did not object when
the Committee on Foreign Relations re-
ported this measure for debate by the
Senate. Despite my reservations and con-
cerns, as a member of the Foreign A.-
la-Lions Committee, I believed then, I be-
lieve now, that this important mF as-
ure-which is the product of long study
and hard work by the distinguished Sen-
ator from New York (Mr. JAVrrs)-sired
other Senators-deserves and is entitled
to the consideration and debate which is
being accorded it now by this body.
The decision to vote "no" on final pas-
sage is a very difficult one for me, pari:ic-
ularly since I realize that my vote is
likely to be misinterpreted In some quar-
ters. I have concluded that I shall vote
against this measure because I am con-
cerned and convinced that enactment of
this bill would lead to more 'wars, :tot
fewer.
I recognize also that the position I take
is not likely to prevail-when the final vote
is taken later today. But I am also con-
vinced that this measure will not become
law this year over the veto of the Presi-
dent-and that veto is certain.
Because that is so, I believe it can be
useful in the course of this debate, not
only to focus on the deficiencies in and
objections to the pending bill, but also
to point out that there are alternatives
constitutional routes that could be taken
to achieve the essential purpose of S. 9:40
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N A TE S 14207
without tying the President's hands in language and effect of S. 440 is to do ex- tial veto, I believe a practical, constitu-
advance. actly what the reports say it would not tional alternative to S. 440 is needed and
The amendment I am suggesting now do: It does seek to alter the constitu- should be considered. it is for those
is put forth for educational purposes- tional powers of the President. Leaving reasons that I have developed my
and for future consideration-rather aside questions about the wisdom of such amendment.
than for immediate action. changes, the cold fact is that changes in S. 440 provides that the President, for
I want to demonstrate that there are constitutional powers cannot be accom- a period of up to 30 days, can introduce
other ways to go-constitutional ways. plished except by amending the Consti- U.S. Armed Forces in hostilities, or, in
At the same time, I realize that this tution. situations where imminent involvement
alternative is complex that it has been Section 5 of S. 440 declares that with- in hostilities is clearly indicated only in
developed at a late date and that it out prior approval of Congress the response to an armed attack on U.S. ter-
should be the subject of hearings. Armed Forces of the United States can- ritory or against U.S. forces abroad, or to
During the last few days, as printed not be introduced by the President for a direct and imminent threat thereof or
copies of this amendment have been cir- more than 30 days, in hostilities, or, in in the case of assisting Americans in
culating among my colleagues, I have any situation where "imminent involve- certain cases.
received a number of constructive sug- ment in hostilities" is indicated except This means that a President would be
gestion t s theich indicate that, appropriate in tide 3the four situations described in sec- prohibited in the absence of prior ap-
thrus of
correct-some details still need to Clearly, , by this provision the propo- _ foproval rces fortes In by situations from employing U.S.
ons where:
be worked out. nents of this bill acknowledge that there First, there is no armed attack on
Accordingly, I shall not press for a are situations and times when the Pres- U.S. territory or U.S. forces, or direct and
vote on this amendment today. But its ident is justified, and empowered under imminent threat thereof, and
very existence as an alternative for fu- the Constitution, to commit U.S. Armed Second, the situation is such that im-
ture consideration helps, I hope, to put Forces to hostilities without prior con- minent involvement in hostilities could
my reasons for opposition to the pending gressional approval. Once that Presiden- be clearly indicated by the circum-
bill in perspective. tial power is acknowledged, i am at a loss stances.
Unfortunately, S. 440, before us now, to understand how Congress by statute This feature of the bill could have
would raise up serious doubts about the could constitutionally impose an arbi- dangerous implications for American
authority of the President in times of trary 30-day limitation on such Presi- foreign policy, or for the safety of the
crisis. It would encourage unfortunate dential authority. United States, and for the prospects of
miscalculations on the part of potential Certainly, no arbitrary time limit is peace in the world.
enemies; it would seriously impair the expressed in, or can be inferred from, The modernization and expansion of
conduct of our foreign relations, it would the Constitution itself. The committee Soviet military strength in Europe and
weaken our national defense and thereby report admits that such a limitation is the Mediterranean, together with sn-
it is likely to increase-not lessen-the arbitrary. At page 28 of the 1973 report creased Soviet deployment around the
dangers of war. are found these words: world, is a facts which cannot be ignored
I wish to spell out some of the,reasons The choice of thirty days, in a sense, is or avoided.
for my doubts about the constitutionality arbitrary. The United States cannot escape the
of S. 440, and then I shall briefly explain fact that it, too, must have the ability to
the alternative route which I suggest. i Of course, Congress can set limitations
am convinced that my amendment would and procedures with respect to its own policy. forces in of
ty of support the e its foreign
accomplish the desired rejuvenation of actions, which my substitute amend- act in nThe some author situations of not President to
Congress' role in the exercise of shared ment would do. But that is a totally dif- this bill o recognized bo
war powers while, at the same time, ferent thing than seeking to fix by statute acan beintenance absolutely essential to
avoiding the constitutional pitfalls em- as limitation admitted to be arbitrary the maintenance of peace and to the
bodied in S. 440. upon powers of the President which are prevention of war.
The report of the Committee on For- derived from the Constitution. If Let S4e40 had be specific.
eign Relations with respect to S. 440, The 1972 report, at page 6, declared: S. n had
cou the law in 1962, have deployed
filed June 14, 1973, includes the follow- The intended effect of Section 5 is to im- ident Kennedy and imposed have ramped
Ing statement: pose a prior and unalterable restriction on as he did diat fleet a the d imp of the a quarantine,
The
essential purpose of the bill, therefore, the emergency use of the armed forces by as time of tCuban mis-
to reconfirm and to define with precision the President. site crisis. It will be recalled that at that
the constitutional authority of Congress to It is clear, I think, that S. 440 seeks time, there was no armed attack on the United S
tates
its Arm
Forces, eexercise its con undeclaredstitutional
nor
warswar
and twers with
to impose: "A prior and unalterable re- any imminent threat thereof. But the a
in
ct
which this authority relates to the constitu- striction" on the President's constitu- of stopping Soviet ships certainly did
tional responsibilities of the President as tional powers. raise a risk of "imminent involvement
Commander in Chief. In addition, I believe the specification in hostilities." If S. 440 had been in effect,
Last year, the committee's ;report in in section 3 of only four situations in President Kennedy's hands would have
connection ast y with the gitte bill, S. t which the President can use the Armed been tied. Those who say he could have filed February 1972, -.
with 29, the original made this s295 Forces without prior approval is also an gone to Congress and asked for authority
meet: arbitrary restriction on his constitution- are unrealistic. By the time Congress
The ur ose of the war al powers. How can we be so sure that could have been called back into session
P p powers bill, as set there are not other situations, not now to consider such a proposal, the inter-
forth in its statement of "purpose and pol- contemplated, when the President could
icy," is to fulfill-not alter, amend, or ad- nation ball game would have been over.
just-the intent of the framers of the United exercise his constitutional power to em- Similarly, the reinforcement of our
States Constitution in order to insure that ploy troops. If there are such other situa- Berlin garrison at various critical times
the collective judgment of both the Congress tions, the Congress cannot limit or deny was not a response to armed attack or
and the President will be brought to bear in that constitutional power by a simple the imminent threat thereof. But actions
decisions involving the introduction of the statute.
Armed Forces of the United States in hostil-
It cannot be emphasized too strongly taken bn several poseidents with respect
sties or in situations where imminent in- to Berlin have exposed our forces to the
volvement in hostilities is indicated by cir- that we have before us a bill-not a risk of "imminent involvement"- in hos-
cumstances. proposed constitutional amendment. tilities.
The earlier report at another Some may believe the policy embodied in President Eisenhower sent troops to
point the bill is wise; some may believe it un- Lebanon at a critical point in time. His
declared: wise. But the fundamental issue is action was in the interest of peace-not
The bill is in no way intended to encroach whether such legislation is consistent war. There are times and situations when
upon, alter or detract from the constitutional with the Constitution.
power of the President- a requirement of prior approval by,COri-
Because S. 440 would be unconstitu- gress would be self-defeating and im-
. But despite these praiseworthy decla- tional, and because in any event, it will practical.
rations, I am deeply concerned that the not become law over a certain Presiden- The ability of our President to act in
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S 14208
the interest of peace should not be placed spect to, the continued use of the Armed Mr. GRIFFIN. No.
is import-nt. of f
under the shadow of
N tainty that would be cd eated by S. 440. made in.. the amendment so thatanY es- casee, certainly h gupinioess not. In any
bespeaks
ions would
opera
thinkingdeal S ho
ding of
aI
a President Middle East of 6t i1Fl a Ives- imperil thensaafety of thetArmed Forc st hep administra onn is good
ment ll at the
se
eels at the time of the Six Dad War, cou- My amendment would not tie the should like to reply.
Sled with his diplomatic contact with the hands
hen it the powPresident in advance. er restore whand ich make more dent. t pass cis not palatable a ato Presides
nSoviet Union to to avoid d misbal alculat Rather it seeks
sic nt.
undehe which Congress Any President I o ld would be found to ose
s a prompt and effective anion taken ken effective tnot in the interest war bu't in the m alr contrast
tere'st o of peace. His s action -`was not in In n contrast to the pending bill, my it, to try to give himself all the powers n- to. response to an attack upon the United amendment does not attempt to prejudge heIpossi lyy e can hangron that President
States or our Armed Forces. But that the circumstances in which our Armed ay remem
move did expose our Armed forces to the Forces 6hauld be employed at some time Nixon, wasregard the Cambodian bo can si lie
at on -
ill
risk of "imminent involvement in hos- in the f .iture.
tilities" and, therefore, would have been That question is left to the President echoed th said the was n on Ca tr,-hill
to rthe educe the
prohibited under S. 440. and the Congress of the future to decide when any way not
Somehave argued that a Middle East under the circumstances that then pre- President in
ysiway That is what
said presidency.
resolution would confer Presidential-au- vail. I believe that through this ap- powers enhet the
the British Empire.
thority to take such actions with respect preach wiser decisions can be made than But, President, I believe that m ire.
to the Middle East. But it is my under- would ,be the case if we attempt, as ing what re are doing, we are avoiding
standing that that resolution applies only S. 440 does, to foresee and anticipate bait for are doing, areas avoiding
the
if there is "armed aggression from any future events now. the which is equivalent id what Nixon's idea
country controlled by interritional com- The approach of my amendment draws British Empire. In short, what we are
munism." Obviously, this provision does upon the recent experience of Congress trying to Inns lto bring w are
not cover some of the situations that when funds for Cambodia, were cut off. trend do is, the guerrilla long last, g about
could arise in the Middle East. It seems to me that if, that experience Congress the the rilla warfare t,in between
My point in recalling these examples proved anything it demonstrated that Congress has been us aantly bste
is to underscore the fact that S. 440 is Congress has the power to act-but Both such remendnus ragic cost c our
not a step toward reducing the chances sometipmes it lacks the will to act. country, before a violent reaction
of war. By tying the President's hands Such an attitude, it seems to me, calls country, of re really stivio away acres-
in very critical situations, this legislation for legislation-not to restrict the Presi- develop autho as to ty.
could actually have the effect of increas- dent=but to approve the procedures dent will
tag the likelihood of war-lot peace. under which Congress can act, and par- Mthet r. . JOHNSTON. or from New Mr. York Presi yield?
I realize that the bill i6 well inten- ticularly the Senate where filibusters are the Senator yew Mr. tioned. But, unfortunately, it would raise a serious obstacle to prompt action. Mr. JOHNSTON. I yield.
i Would the Senator
up ambiguities and doubts in situations I shall not press my amendment, Mr. from New York eto me, it ,;elm
the bill is to prevent
where the President's power to act should president, but I suggest and urge that that the purpose explain
be clear and unqualified. the a proach embodied in this amend- the kind pf situation we had in Vie -m of
it is unnecessary to a restoration of the clear that S. 440 cannot become law. yet an our troops into bill s pea hostilitiesks. As
appropriate congressional role. Mr. President, I withdraw the amend- I recall the situation in Vietnam, our
It is not necessary to attempt to limit ment. troops were originally sent there to guod
or base. We were there to
the Constitutional powers of the Presi- The PRESIDING OFFICER. The tr Air were
dent-"to impose a prior unalterable re- amendment is withdrawn. The bill is an that base. They en turn were at
striction on emergency use of the Armed open to further amendment. tacked, as perhaps could have been pre-
sure by the President' fn order to in- Mr; JAVITS. Mr. President, does the ticked. That, h ps co would seem me
sure that the Congress can speedily and Senator from Minnesota wish to speak di trigger the otherrn, section e t law to of the
promptly cut off funds for ventures now? which would allow the President, then,
which do not have the support of Con- Mr. HUMPHREY. Yes, if someone will to use the troops to repel an attt ck on
gress. yield', me time. those troops.
All that is necessary-as was demon- The PRESIDING OFFICER. Who would or or would
strated when funds for bombing in Cam- yields time? Is not it prevent not not true the that kind this would would
bodia were cut off-is for Congress to Mr. MUSKIE. Mr. President, I yield tits which we have had?
act 5 minutes to the Senator from Minne- DAVITS. It would prevent f Viet-
nom situation because the toddle who
posed time limit of 30 days need be im- sota. ' Mr.
posed on the President's Constitutional M. HUMPHREY. On the bill? went sthere to defend ituation ecaus that Air who
powers. Aside from the fact that such- a Mr. MUSKIE. On the bill. went assuming that those fare
limitation would be unconstitutional, the Mt. JAVITS. Mr. President, will the correct-but let assume that, facts t the
period could be much too long in some Senator yield? sake of the answer, although I think
more nto it s a than although I ethink
situations-and too short In others. Mr. HUMPHREY. I yield. sakes of
The amendment I have suggested calls M. JAVITS. Let me say that I shall there is Jhad decided I cause
for consultation between the President repI to the statement of the distin- ere Senator eside Johnson o remember the decided on--level
and the Congress before troops are in- guisied assistant minority leader at a held with the President of
volved in armed conflict. And section 3 laterr+ point, and I ask unanimous con- meetings I he think it was either s Manila
calls for prompt notification to the Con- sent that my remarks may be printed in Vietnam, , thich was decided that
gress if and when the President corn- the RECORD at this point. Hawaii, awawaiiait, in n which ich it would decided
mits or substantially enlarges U.S. troops M . HUMPHREY. Mr. President, I the Vietnamese rforc t duubs nd U.S.
abroad. I believe that taking action to think it would be appropriate that the essentially
Bold fight the war.
support the concept of consultation in Senator from New York reply now, and forces But even if the Senator. is right--and
time would be a wholesome and appro- I shall await my time.
priate step-a step that would implement Mr. JAVITS. Mr. President, if I may it is a hypothetical question-if we sent
the intentions of the Founding Fathers, have 5 minutes, I shall not take very troops into hostilities, and then a were
es in Vthen tells act
that would enable Congress to take ac- long. hostilities immediately in Vietnam, et apply. C thisy ct
tion on the basis of up-to-date infor- Mr. President, I reply, first, because President, even el there were aa actual
mation. the Merits demand a reply, and second, shooting that day, there deny ar th tual
My amendment then establishes an because of my respect for the Senator was imminent danger of hthat cstili ere
expedited procedure for Congress to con- from Michigan (Mr. GRIFF'IN), who, if according to this, would apply.
exec znory serves me correctly, was one of which, the ac the Prpd e cosponsors of our -bill. So it is an a priori situation--to wit,
sider of exercise its power ower of of the t- ude urse wi vnth re- -th the
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July "20,-1973 CONGRESSI ll~~
troops were there at all, whether to
guard an Air Force base, which made
this applicable and not the exemption
contained in the section regarding Pres-
idential powers.
Mr. JOHNSTON. Then the term "in-
troducing hostilities" means introducing
troops into the country if hostilities are
taking place?
Mr. JAVITS. That is exactly right.
Mr. JOHNSTON. And where they are
not employed initially for hostilities?
Mr. JAVITS. That is precisely right.
Iam obliged to the Senator for sharp-
ening that point.
Mr. President, to continue, I should like
to deal with the various items the Sen-
ator from Michigan (Mr. GRIFFIN) has
in his amendment which he has now
withdrawn, because it gives us the op-
portunity to show precisely how this
applies.
I said a minute ago that no one will
get off scot-free. We are confirming the
President in constitutional authority,
which is something that has never hap-
pened in the history of this country.
That is good for him. We are also con-
firming ourselves in our authority. It is
not one-sided at all. I hope that the
President, who has been rather quick
about vetoes, will think that over. He
may not get another chance, nor may
any other President. We may have a con-
stitutional crisis, if the country gets sick
and tired of a "President's war," even as
Senator Goldwater says, by constitutional
amendment. We have passed that before.
We may again. We may have a Presi-
dency which is truly emasculated and I
do not want to see that, either.
The PRESIDING OFFICER (Mr.
HELMS). The time of the Senator from
New York has expired.
Mr. MUSKIE. Mr. President, I yield
the Senator from New York as much time
as he requires.
The PRESIDING OFFICER. The Sen-
ator from New York may proceed.
Mr. JAVITS. Mr. President, that is the
framework, because this is very impor-
tant.
Let us take the various instances.
First, deployment regarding the Cuban
missile crisis. The fact is that missiles
were stationed in Cuba by the Soviet
Union, essentially, and that, therefore,
the President who would propose to stop
their ships at sea would know he was in
imminent danger of hostilities. So this
bill would apply. And why should it not?
In fact, the Soviet ships were not stopped
by us. They stopped themselves. It is
important to note that McGeorge Bundy,
who is the closest living person to Presi-
dent Kennedy respecting this matter,
has testified that the War Powers Act
would not have hamstrung President
Kennedy's successful diplomatic moves
to resolve the Cuba missile crisis.
Now had the President come to Con-
gress and said, "I need authority to stop
those ships," we would have stopped
those ships. That was risky business for
hundred of millions of people around the
world, with nuclear war in the offing;
to leave it to one man in the White
House-one man-to decide yea or nay.
Fortunately we got out of it through
diplomacy.
Mr. GRIFFIN. Mr. President, will the
Senator from New York yield?
Mr. JAVITS. I yield.
Mr. GRIFFIN. The Senator, I am
glad, does concede that the effect of the
bill would be to have made it impossible
for President Kennedy to have acted in
the Cuban missile crisis without getting
prior approval of Congress.
Is not the Senator aware that Con-
gress was not in session at that time?
Mr. JAVITS. This Senator is very well
aware of that. Also, that Congress can
be called into session in 10 hours. In,addi-
tion, if I may remind my colleague from
Michigan of some history, that crisis
was brewing for several weeks. I was on
television about it, as were many others,
before the President made the decision
as to what he would do, that is, that he
would stop the Russian ships. We even
had a resolution on the books given a lot
of authority to the President. He had lots
of time in which to deal with Congress.
I do not want to be tied to this, but cer-
tainly he had a time lag. If he did not
have a time lag and the danger was that
imminent, he might-I repeat, he might
have-in good faith, invoked that provi-
sion of this bill which said that if U.S.
territory was in imminent danger of at-
tack, that is covered by this bill, too. I
would hope that the President would not
do that, but, nonetheless, he perhaps
could have, if it came to that.
Mr. GRIFFIN. I am interested in hav-
ing this debate fully reflect the various
points of view, so let me say that, as I.
recall it, President Kennedy made that
decision rather late, after it was ascer-
tained, I think by aerial observation,
that the missiles were actually on the
ships. Certainly we would not criticize
him for not making the decision earlier.
Once he made that decision, and the
ships were on their way, it was too late
to call back Congress or to get Congress
to consider and pass some kind of resolu-
tion of approval before the missiles
would have been in Cuba.
Now, to say that because the missiles
were in Cuba would have authorized us,
under the resolution, is to say that mis-
siles anywhere in the world, or ICBM's
for that matter, which are Russian based
and which can reach the United States,
would allow the same thing. I do not
think that the Senator from New York
would really mean that. So I point out
that I think the effect of the bill would
have been impractical and unrealistic in
the Cuban missile crisis. President Ken-
nedy's hands would have been tied and
he would not have been able to act in the
interests of peace, as he did.
Mr. JAVITS. I could not disagree more
with the Senator from Michigan.
Mr. MUSKIE. Mr. President, will the
Senator from New York yield for a
moment?
Mr. JAVITS. I yield.
Mr. MUSKIE. The Senator, of course,
is the author of the bill and the careful
architect of its provisions. He under-
stands what he intended by this legisla-
tion better than anyone else. But in
response to the Senator from Michigan,
let me make the point first-the his-
torical point-that the President at that
S 14209
point did assemble the congressional
leaders-
Mr. JAVITS. Of course he did.
Mr. MUSKIE. At the time he con-
sidered the decision. Second, the declara-
tion of war at the time of Pearl Harbor
was made within 2 days of the attack
on Pearl Harbor. So Congress is capable
of acting quickly. But then, let me em-
phasize a point the Senator from New
York made a moment ago. The language
of subsection (1) of section 3, which con-
firms the emergency authority of the
Commander in Chief.
To repel an armed attack upon the United
States, its territories and possessions; to take
necessary and appropriate retaliatory actions
in the event of such an attack; and to fore-
stall the direct and imminent threat of such
an attack;
I remind both Senators that the im-
plication from the pictures taken, by our
aircraft was to the effect that the instal-
lation of the missiles posed an imminent
threat to the United States.
As the Senator from New York has
said, I would hope that, given time, a
President would still consult Congress.
But one certainly could not challenge his
good faith if he were to use that lan-
guage in, those circumstances to invoke
the emergency powers.
Mr. JAVITS. The Senator has an-
swered the question exactly as I would,
and I wish to add one other point.
No one denies for a minute that you
still depend to a great extent upon the
Presidency. As to all the loose talk about
credibility, and so forth, we all can ap-
preciate and understand that, but you
cannot run a country that way. You
cannot operate; you cannot pass laws
on that theory.
We must assume that, having written
it out, the President will obey the law
In reasonable good faith. In any case,
we will have something to repair to.
I believe that the answer to the Cuban
missile crisis is that, given any time at
all, the President would have seen his
clear duty under this bill to come to us. -
What gives him the prescience and
patriotism that is denied to us? I do not
understand it. He is human and mortal.,
as we are. If you had any doubt about it
yesterday, you should not have it today.
What, is the basis for the assumption
that he is infallible and cannot make a
mistake and that only we are capable
of mistakes?
So much for the Cuban missile crisis.
As to the relief of the Berlin garrison,
there was no imminent threat of war.
The Senator, himself, said that. We just
defeated an amendment by the Senator
from Arkansas (Mr. FULBRIGHT) which
would have inhibited the deployment of
our forces. So the President is perfectly
free to deploy the forces of the United
States. That covers the Berlin garrison
problem.
As to the situation of the troops to
Lebanon, there, again, the President
should have come to us; and, in fact, he
did. He got a resolution which in the
terms of that time was valid: if they are
attacked by Communist forces or Com-
munist-backed forces.
That was his cover for asking for the
resolution, on the ground that the revolt
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CONGRESSIONAL RECORD - SENATE July 20,? 1:0 73
In Lebanon was fomented by the So-
viet Union or forces acting at the dic=
tates of their international, Communist
apparatus. But precisely this law would
apply and should apply in that kind of
situation. That could have led to an
enormous conflagration in the Middle
East exactly like that in Vietnam. We
are mighty lucky that we got out of it
with a whole skin. Certainly, we want
this to apply to that kind of situation,
and it should.
Finally, as to the deployment of the
6th Fleet in the 6-day war, the answer
is precisely the same as that respecting
the deployment in respect of the Berlin
garrison. The President moved our ships
forward in a situation which represented
the normal deployment for naval forces
of the United States. There was no im-
minent danger.
Nobody was threatening to attack.
They were not involved in hostilities. And
the President had complete authority to
do that. Had he moved them within the
war zone, with a design of taking some
part or relieving one or. the other of the
parties, then he would be subject to this
law, and I maintain that he should be.
That is why we are doing it.
I understand the views of the Senator
from Michigan, and these are appropri-
ate questions to raise and to be debated.
But I really feel that the plan of the
bill meets the appropriate exigencies.
Where we ought to have power, we are
given power; and where the President
ought to have power, he is given power.
I thought these views should be juxta-
posed to those of the Senator from Mich-
igan, and I thank the Senator from
Maine.
Mr. MUSKIE. Mr. President, I yield 5
minutes to the distinguished Senator
from Minnesota.
Mr. HUMPHREY. Mr. President, ear-
lier today I made a statement and placed
in the RECORD a statement in full sup-
port of this very important, historic piece
of legislation.
I particularly wish to compliment the
Senator from New York for his initiative
in this area of constitutional law-that is
what it is-and the distinguished Senator
from Maine for managing this bill on the
floor of the Senate and for his intimate
knowledge of its details,
The report of June 14, 1973, which has
been published on the War Powers Act,
as it is known, is possibly one of the most
precise and informative documents relat-
ing to the relationships between the
President and Congress, as pertains to
warmaking powers and the authority
that each branch of Government has,
that has ever been published. We are in-
debted to the Senate Foreign Relations
Committee, the sponsors of this bill, and
the staff of that committee for a truly
remarkable report. The report contains
these words:
It is legislation essential to our security
and well being. It is legislation inthe inter-
est of the President as well as the Con-
gress. . We live in an age of undeclared
war, which has meant Presidential war. Pro-
longed engagement In undeclared, Presiden-
tial war has created a most dangerous im-
balance in our Constitutional system of
checks and balances.... [The bills is rooted
In the words and the spiritof the Constitu-
tion. It Loses the clause of Article I, Section 8
to restore the balance which has been upset
by the ! historical disenthronement of that
power over war which the framers of the Con-
stitution regarded as the keystone of the
whole Article of Congressional power-the
exclusive authority of Congress to "declare
war"; the power to change the nation from
a state of peace to a state of war.
Those are the words of the distin-
guishe Senator from New York, and I
think they summarize very properly and
succinctly what this bill is all about.
I believe that this debate has been
truly a, course of instruction in the very
heart Uf constitutional government, the
relationships between the President and
Congress. On'the issue of life or death,
peace or war, nothing could be more
f undamental.
Whether this bill is what it ought to
be or not, it is a beginning. It represents
an intelligent, instructive effort on the
part of, Congress to work out the rela-
tionships between the Presidency and
Congress on the entire subject of national
security, particularly as it relates to the
use of the Armed Forces of the United
States,; and under, what terms and
conditions.
So I would hope, as the Senator from
New York has said, that the President
would not be too hasty in proclaiming
that it will be vetoed. I would urge upon
the President that he study the back-
ground of this legislation as the testi-
mony before the Foreign Relations Com-
mittee was given. I would urge upon the
President and his advisers that they
read the report on this bill, as filed by
the Committee on Foreign Relations. I
urge upon the President that we learn
the lessons of the second half of the
20th century-namely, that power be-
gets power, that action begets action,
and that Presidential power exercised Is
building precedent upon precedent, and
there comes a time when you have to
take a look once again and attempt to
restore 'the balance upon which this con-
stitutional system is predicated.
SUB5IISSION OF SENATE RESOLUTION 149
Mr. HUMPHREY. Mr. President, one
of the best ways to prevent a war is to
have communication between the re-
spective nation-states. I am today sub-
mitting a resolution which will place the
Senate' on record as favoring a return
to normal relations between the United
States '' and an old historic friend-
namely Sweden-and the means to do
this w~uld be the normal exchange of
ambassadors.
Since August 1972, almost a full year,
we have had no diplomatic relationship
with Sweden, a friendly nation, a na-
tion of democratic purpose and demo-
cratic Institutions, a nation of people
who have a great and fierce sense of
individuality, and the love of freedom
and liiperty. Yet .the President of the
United; States has seen fit to break off
diplom tic relations and inform the
Swedish Government that an ambassa-
dor froth Sweden would not be welcome
here and, of course, not to send an
American ambassador there. Why? Be-
cause the present Prime Minister of
Sweden made some derogatory remarks
about our country in 1972 when the
bombing was taking place over Vietx.am.
But he did not say anything that had
not been said by Senators; Representa-
tives, or distinguished citizens of this
country who disagreed with the Presi-
dent's action.
What the Swedish Prime Minister said
was not nearly what had been said from
Peking or Moscow. They had conducted
a diatribe against this country for years.
Yet we reach out to Moscow and Peking
and we call them long lost brothers. It
is the new diplomacy.
I think countries areentitled to express
their points of view, but if the reason we
broke relations with Sweden is because
we did not like what their Prime Mini ster
said in 1972, I want to know what we are
doing in our new detente and spirit of
understanding with the Peoples Republic
of China and the Soviet Union. The sit-
uation does not make sense.
All I am doing here is to ask the Pres-
ident of the United States to restore the
relations with the country that :.s a
bridge between the North Atlantic ]?act
on the one hand and the Soviet Unio:a on
the other hand, a country that is a
friendly country, which has its sons and
daughters by the millions in this country,
a country that has elections, a country
that believes in civil liberty. I am as:ing
that the President of the United States,
"get with it" and send an ambassador
there and say to the Prime Minister of
Sweden that we are prepared to act like
mature people; that we are done with
this infantile petulance, and it is tima we
cut it out.
We do not have an ambassado:? in
Moscow. It might not be a bad idea to
have one there. I urge on the President
of the United States that in the nary. e of
diplomacy for peace, for which I com-
mend him, and repeatedly praise I.-run,
that he take the steps now to heal some
of these wounds in the case of Sweden
and because of the importance of rela-
tionship with the Soviet Union, that an
ambassador be sent there.
Mr. President, this is one of the ways
to preserve peace and this fits within
the confines of this debate.
Mr. President, the resolution would
place the Senate on record as favoring
t return to normal relations between
the United States and Sweden. The
means. to do this would be a normal ex-
change of ambassadors.
At present, there is no American am-
bassador in Stockholm. Our Ambassador
left his post in August of 1972. The ad-
ministration has not nominated another
ambassador for this post, leaving it va-
cant for almost a year.
The Swedish ambassador left Wash-
ington in January 1973. I understand
that the administration has made it
known to the Swedish Government that
it will not welcome his successor. The
gentleman who was planning to become
the Swedish ambassador to Washington
has been given another post by his gov-
ernment.
Mr. President, what appears to be a
childish rift between two nations has
serious implications for U.S. foreign
policy.
It is a matter of great concern to me
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July 20, 1973 CONGRESSIONAL -
and others who feel that the United Swedish descent-must realize how un- expense of the continuance of a tradition
States has absolutely no right to penalize fair and untenable our position is. in our governmental system, a tradition
a nation in this fashion, because its na- It is my hope that the Senate Resolu- which has allowed the President free-
tional leadership expresses views which tion I introduce today will bring to the dom of movement in the conduct of
may not be in accord with our own. attention of the President and the State diplomacy.
The Nixon administration has chosen Department the need to nominate with Mr. President, I do not think a better
to attempt to embarrass the Swedish all due haste an ambassador to Sweden. case could be stated against the adop-
Government by not sending an ambassa- The time has come to normalize our tion of the war powers bill than was
dor to Stockholm. We have also rebuffed relations with Sweden and not let the stated by Mr. Justice Sutherland in the
any attempts made by the Swedes to past interfere with the necessary ex- case of United States v. Curtiss-Wright
normalize relations. change of views so badly needed for fu- Export Corporation, 299 U.S. 304, 1936.
The behavior of the Nixon administra- ture good relations. Here is what he said:
tion concerning this matter is in direct Mr. TOWER. Mr. President, I call up It will contribute to the elucidation of the
violation with a Senate resolution passed my amendment No. 386 and ask that it question we first consider fthdifferences
of of foreign the federal
in the powers
external greein-
in September 1969, specifying that dip- be stated. It is my understanding that between the
lomatic relations do not depend upon or the amendment is out of order, but I was and those in respect of domestic or internal
imply approval views of the governments under the impression that the point of affairs. That there was differences between
concerned. order could not be raised until after the them, and that these differences are funda-
This principle was the guiding force time on the amendment had expired or mental, may not be doubted.
in the 1930's when Franklin Roosevelt had been yielded back. The two classes of powers are different,
that the their
recognized the Soviet Union. And this Mr. MUSKIE. I am happy to yield time both in he f e origin
certainly was in evidence to the Senator. nature. e. The e broad can axe en nh powers ex-
eral
enumerated it the
ranged Mr. Nixon and Mr. Kissinger ar- The PRESIDING OFFICER. The tgovern hose eat can
ranged for a mutual exchange of diplo- Chair is advised that the amendment cept
Constitution, and such implied powers as
mats with the People's Republic of is out of order. are necessary and proper to carry into effect
China. Mr. TOWER. I withdraw the amend- the enumerated powers, is categorically true
It is interesting that we choose to pen- ment for the moment. only in respect of our internal affairs.... The
alize the Swedish Government for ex- Mr. MUSKIE. I am happy to yield to powers to declare and wage war, to conclude
dip-
peace, to make treaties, to maintain dip-
menet in tin the vie warwar in n Indochina critical hina our and do involve- noot the Mr. . TOWER. Will the Senator yield to lomatic relations with other sovereignties, if
ment had never been mentioned in the Con-
bat an eyelash when far more critical me for 15 minutes? t y had, wordhave vested mentioned the federal-
and more numerous statements are made Mr. MUSKIE. I yield 15 minutes to the government as necessary concomitants of
by the Soviet Union and the Peoples Re- Senator from Texas on the bill. nationality. Neither the Constitution nor the
public of China. Of course, I do not be- The PRESIDING OFFICER. The Sen- laws passed in pursuance of it have any force
liege we should diplomatically penalize ator from Texas is recognized. in foreign territory unless in respect of our
any country for statements it made Mr. TOWER. Mr. President, the own citizens (see American Banana Co. v.
which faithfully reflect the views of large amendment in question is out of order Unite
d Fruit the nation in3such 5territory
numbers of its people. . because it is an amendment to the title must operations of the by ioeaties, international
We cannot avoid the fact that our of the bill and, therefore, cannot be called understandings and compacts, and the prin-
ciples in Indochina have deeply dis- up until after the bill is passed. ciples of international law... .
turbed large numbers of Scandinavians I will read the amendment. It states: Not only, as we have shown,.as the federal
and Europeans. When Prime Minister Amend the title so as to read: "A bill to power over external affairs in origin and es-
Palme was critical of the American make rules governing the use of the Armed sential character different from that over
Forces of the United States in the absence of internal affairs, but participation in the ex-
bombing of Hanoi in December 1972, his a declaration of war by the Congress, and ercise of the power is significantly limited. In
remarks were not aimed personally at thereby reduce the United States of America this vast external realm, with its important,
the President or any other Americans. to the status of a second rate power." complicated, delicate and manifold problems,
While they may have been exaggerated I know on the face of it that it ap- the President alone has the power to speak
and I personally take exception to them. pears to be a frivolous and facetious or listen as a representative of the nation.
However, the essence of his frustration, amendment, but I offer it not in levity He makes treaties with the advice and con-
outrage, and disagreement with our poll- sent of the Senate; but he alone negotiates.
ties was shared by many Americans. because to me it really says what we are Into the field of negotiation the Senate can-
doing here, because it underscores what not intrude; and Congress itself is powerless
Mr. Paime, like all Americans, has a I conceive to be the impact of this legis- to invade it. As Marshall said in his great
right to express his views without having lation if it is passed and if it is signed argument of March 7, 1800, in the House of
to experience retribution of any sort. by the President or his veto is overridden. Representatives "The President is the sole
I have no doubt that Swedish-Ameri- Mr. President, what is proposed in S. organ of the nation in its external relations,
can relations strengthened by bonds of and its sole representative with foreign na-
440 is to reduce the United States to a bons:' Annals, 6th Cong., col. 613.
friendship and kinship will long outlive state of impotence in this negotiation
the present infantile petulance. with the large superpowers of this world That was a man speaking within the
However, the principle involved here is because it imposes a paralysis of military same time frame that the Constitution
how the United States relates to the action on the President of the United was conceived, framed, and adopted. If
smaller democratic nations of the world. States. Anyone knows that to negotiate we want to talk about the intent of the
Why have we paid so little attention successfully with a superpower, the framers, let us repair to some men who
to the ugly tirades of great socialist Soviet Union, you must not only be in were present in that era and who were
powers and react so unfairly to criticism possession of great military power, but commenting on the Constitution at that
of our policies by a small democracy? also you must have the flexibility and time.
Why do we seek to punish diplo- the willingness to use it, if necessary. Justice Sutherland further said:
matically and embarrass a country which What this bill does is to proscribe the It is quite apparent that if, in the main-
has been our friend for so many years? Chief Executive in this country in a way tenance of our international relations, em-
barrassment-perhaps state serious embarrass-
During the month of April in a letter, ment-is to be avoided and success for our
I called upon the President to give this country in the world is proscribed. They aims achieved, congressional legislation
matter his personal attention and rem- must be laughing themselves silly in the which is to be made effective through nego-
edy this deplorable situation. There has Kremlin over our consideration of this tiation and inquiry within the international
been no response from the White House legislation. field must often accord to the President a
or from the Department of State. Much has been made of the research degree of discretion and freedom from sta-
Apparently, the exchange of views that and constitutional prerogatives of the tutory restriction which would not be ad-
we so cherish with the People's Republic Presidency of the United States. It seems miscible were domestic affairs alone in-
volved.. . . [B]oth upon principle and in
of China and the Soviet Union is not de- to me we are trying to do it not only at accordance with precedent, we conclude
sired in the case of Sweden. the expense of the constitutional prerog- there is sufficient warrant for the broad dis-
All Americans-and especially those of atives of the President, but also at the cretion vested in the President to determine
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S14212 CONGRESSIONAL RECORD- SENATE July 20,
whether the enforcement of the statute will ity to act to these four specific categories.
have a beneficial effect upon ire re-estab- Congress would tie a future President's
lishment of peace in the affect countries. hand when some unforeseen crisis arose.
The opinion goes on to mutters that It shoul also be pointed out that some
are not necessarily relevant to this de- constitu ional law experts maintain that
bate. the independent authority of the Presi-
Mr. President, it occurs to me that dent under the constitution is substan-
what we are doing here flies in the teeth tially broader than the four categories
of tradition custom, and gage. In a specified in the bill. Therefore, to limit
horse-and-buggy era, this kind of leg- the President's power to these categories
islation conceivably could have had its may raise the point of constitutional-
place, but not today, not at aatime when ity
we have the Middle East crisis, the Leb- In addition, the question has been
?inese crisis, the Dominican crisis, the raised as to whether this bill would cover
Cuban crisis. This is no time for us to such emergency situations as the action
fly into the teeth of tradition and con- taken by President Truman in Korea. In
stitutional uses. the absence of a declaration of war, the
I have no thought that this bill will act would prohibit collective action
be rejected, but I think that those of us against a sudden armed attack on a na-
who can see the inherent oil in this tion to which we have no formal na-
measure would have been remiss had we tional commitments. Thus, If President
not talked about it. Should this bill be- Truman had been operating under the
come law, the United States from this proposed act a prior declaration of war
point will be disregarded as a great would have been required before en-
power with influence over the course of gaging our forces in the Korean war.
world events. This bill also raises the question of
The PRESIDING OFFICER. Who whether we could go to the aid of Israel
yields time? In case ok an attack on that country since
Mr. MUSKIE. Mr. President, I yield we have no defense treaty with Israel.
the Senator from South Carolina- 10 The potential for great power inter-
minutes. vention in the Middle East is clearly ii-
Mr. THURMOND. Mr. President, I rise lustrated by the burgeoning Soviet naval
in opposition to the pending bill, S. 440, presences in the Mediterranean, Persian
on the grounds that it is unnecessarily Gulf, and Indian ocean and the presence
restrictive on. the President and may of Soviet military personnel and sophis-
well lead to new problems rather than ticated military equipment in several
correct present problems. Mideast countries.
Under this bill the President of the This bill specifically limits the use of
United States could take emergency U.S. forces to situations where the United
military action-in the absence of a States or U.S. forces are attacked or di-
congressional declaration of war-in rectly and imminently threatened with
First. To repel an attack on the United example, the United States itself was not
States, or forestall the "direct and im- directly threatened with attack nor was
minent threat of such attack!'; there animmediate threat to American
Second. To repel or forestall an attack forces. However, there was an open and
on U.S. Armed Forces stationed outside imminent threat made by Russia against
the United States; Israel. President Johnson's prompt re-
Third. To protect U.S. citizens and na- sponse by moving the 6th Fleet into the
tions in danger in foreign countries;- or danger area in order to forestall Rus-
Fourth. Pursuant to some specific sian pressure on Israel would have been
statutory authorization short of declara- prohibited under S. 440 because no threat
tion of war. - had been made against U.S. forces.
The bill further provides that when Other ''situations not covered in the
the President does take emergency - ac- four points are sudden attacks on areas
tion, such action must cease within 30 which the Nation is committed by treaty
days unless Congress authorizes con- to defend-but not by specific authoriz-
tinuation of use of the Armed Forces. ing legislation-regional peacekeeping
Mr. President, in my view this mews- operations, and humanitarian interven-
ure fails to meet the objectives of re- tions.
storing to Congress its power to declare Mr. President, the 30-day limitation on
war without at the same time tying the Presidential emergency action is another
President's hand in emergencies. S. 440 area viewed as excessively restrictive of
is simply too restrictive of the President's the President's Power. There are those
power to act in emergencies. For in- who feel that under the Constitution the
stance, the bill does not contain any President, as Commander in Chief, has
specific provision for the President to the authority to defend the territory of
use his own judgment and dis+iretion to the United States with all resources at his
determine what is an "emergency" suf- command for whatever period is re-
ficient to justify action on which he can quired. Thus a statute setting a time
base a deployment of our Armed Forces limit on the President's authority to act
without congressional assent. to an exact term, as 30 days, may raise
The legislation provides only four situ- grave constitutional questions.
ations in which an immediate response Several other adverse affects may flow
is allowed, and it may well be questioned from the 30-day provision under which
whether it is possible to define and de- the President's emergency action would
scribe in advance all possible potential be terminated unless continued by Con-
emergency situations to which the Presi- gress.
dent might be called on to respond. It could force Congress into a prema-
By restricting the President's author- ture decision or end Presidential action
before a full assessment eduld he made
of the situation. It might increase pres-
sure to escalate hostilities in order to
achieve the objective within this limbed
time frame. It may precipitate a prema-
ture withdrawal of troops and cause
more dislocations or possibly endanger
their lives.
Finally, it is possible that if for some
reason Congress were not able to act
within 30 days, the President would be
obliged to do whatever he thought beast,
again raising the constitutional issue at
a time of crisis when the Nation could
least afford it.
Mr. President, before closing I would
like to point out that the Congress has
always had the power to shut off fund-
ing for any military operation the Co:m-
mar_der-in-Chief might undertake.
In forming our government, Congress
was given the authority to declare war
and, of course, Congress holds the pu::?se
strings to finance the cost of any war.
Therefore, the Congress has consider-
able authority in this- area and I see no
reason for new legislation which would
limit the President's ability, to meet
emergency situations.
For this reason and the others men-
tioned earlier in these remarks I intend
to oppose this bill.
If the Congress does pass this bill, :l
hope the President will see fit to veto it.
Mr. EAGLETON. Mr, President, I send
an amendment to the desk.
The PRESIDING OFFICER. The elf rk
will report the amendment,
The assistant legislative clerk read as-
follows:
-- -
On page 9, line 5, beginning with "but",
strike out through "Act" the first time it
appears in line 7.
Mr. EAGLETON. Mr. President, in
brief my amendment would strike almost
all of the sentence describing the effec??
tive date of S. 440 in section 9, Section 9,
when originally added to the bill was a
viable section, because-then we were op-
erating in the context of a continuing
war being experienced in Southeast As:.a.
However, since the introduction of Cie
bill this year and since the hearings on
it in the Senate Committee on Foreign
Relations and finally its consideration.
now on the floor of the Senate, we have
had intervening events, which, in my
opinion, make the continuation of sec-
tion 9 an anachronism. Among these
events has been the withdrawal of troo;as
from Southeast Asia, and more recently
the so-called Cambodian compromise by
which August 15 was set as the final date
for the cessation of all American milita: y
participation it Southeast Asia.
The purpose of my amendment is sim-
ply to strike out those anachronistic
parts which are no longer effective ar, d
to assure that the provisions of S. 4c:0
go into effect immediately on the date of
enactment. -
In addition, this would incorporate
in S. 440 identical language to that ap-
pearing in the House bill on war power;,
The PRESIDING OFFICER. Who
yields time?
Mr. MUSKIE. Mr. President, I yield
myself such time as I may require. I shall
be very brief.
The amendment has been.under con-
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July 20, 1973 CONGRESSIONAL RECORD -SENATE
sideration by the Senator from New
York (Mr. JAVIxs), the Senator from
Mississippi (Mr. STENNIS), and me. De-
velopments since the bill was approved
by the committee do create something
of a problem.
The provision now in the bill has ap-
parently been covered by the so-called
Cambodian compromise adopted a cou-
ple of weeks ago. Still, we have not ar-
rived at the date of August 15. But in
anticipation of the termination of all
U.S. military activities in Indochina by
that date, the Senator from Mississippi
(Mr. STENNIS), the Senator from New
York (Mr. JAVITS), and I are willing to
accept the amendment.
Mr. President, at this time I yield
to the Senator from New York to discuss
the matter more fully with the Sena-
tor from Missouri.
Mr. JAVITS. Mr. President, the
amendment of the Senator from Mis-
souri has given me very great concern,
primarily because we must all remember
that this is a bill, as I said when we
opened the debate, that has gone through
an unbelievable examination.
We have always felt and have con-
sistently made the point that there is no
retroactive intent in connection with the
bill. We would not provide for retroac-
tivity if we adopted the amendment. The
bill would say that it would actually take
effect on the date of its enactment.
Nevertheless, we thought that there had
to be no argument about the hostilities
in Vietnam. The Senator from Missis-
sippi (Mr. STENNIS) was very strongly of
that view.
We felt the same way when the bill
went through the committee about the
hostilities in Cambodia. Again, notwith-
sta{iding the deep objections we had-
which goes for the Senator from Mis-
souri and myself and a great majority of
the committee with respect to Cam-
bodia-we still did not wish to bring this
bill into that kind of retroactivity.
We do now face a different situation,
as has properly. been argued. We have
adopted the so-called continuing resolu-
tion with a cutoff date, and we have a
right to assume that will represent an
end of everything related to the war in
Indochina. So, one could say, as the Sen-
ator from Missouri has undoubtedly
made clear-although I was not present
in the Chamber at that particular in-
stance-that this retroactivity clause he
seeks to strike is moot. On the other
hand, I am sure that it will take some
months for the bill to become law. And,
without any question, no one ever knows
what may occur.
Also there are rumors, and Washing-
ton is always full of them, that the Presi-
dent may seek an extension of the Au-
gust 15 date.
I rather sense that is another reason
that the Senator from Missouri is anx-
ious for his amendment, to serve notice
that this will not be very kindly received
around here. I think that I would be very
much in accord with that notice itself.
I would like, before I agree, to make
one further appeal to the Senator from
Missouri.
We will take the amendment if he
wants us to take it. However, I would
like to lay one fact before him. The
House has stricken the provision, and if
we strike it out of here, we will have
nothing to confer about on that matter.
In view of the fact that the House
struck the section out of House Joint
Resolution 542 on the floor, we would
have nothing to confer about and noth-
ing to do in conference with this particu-
lar question if in the next 30 days or 60
days some new situation should develop.
That is the disadvantage. However, I
cannot use that disadvantage as a de-
cisive argument against the amendment.
I can only say to the Senator from
Missouri that `the Senator from Missis-
sippi (Mr. STENNIS) most reluctantly and
I most reluctantly and the Senator from
Maine (Mr. MusKIE) most ' reluctantly
will .take the amendment, but we would
still commend to his consideration the
fact that it would be strictly a matter in
conference and that we should leave
ourselves room for maneuvering in so
delicate a situation.
If the Senator feels absolutely decided
on this, we will agree to accept the
amendment.
Mr. EAGLETON. Mr. President, with-
out any degree of reluctance I say to the
Senator from New York that it is anach-
ronistic. It stands for nothing in the
context of today's situation. I would like
to go forward with the amendment.
Mr. JAVITS. Mr. President, if the Sen-
ator will yield for another question, it is
our understanding that the only reason
for striking this clause is the fact that
precisely the question sought to be dealt
with by this clause has been dealt with
by the so-called Cambodian ? compromise
in the continuing resolution, the date
being August 15.
Mr. EAGLETON. The Senator is cor-
rect.
Mr. JAVITS. Mr. President, under
those circumstances, I have no objection
to the amendment.
The PRESIDING OFFICER. Who
yields time?
Mr. MUSKIE. Mr. President, I yield
back the remainder of my time.
Mr. EAGLETON. Mr. President, I yield
back the remainder of my time.
The PRESIDING OFFICER. All time
has been yielded back. The question is
on agreeing to the amendment of the
Senator from Missouri.
The amendment was agreed to.
The PRESIDING OFFICER. The bill
is open to further amendment.
Mr. JAVITS. Mr. President, before we
go to third reading, may I have 1 minute.
I do not know of other amendments,
S 14213
The clerk will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. JAVITS. Mr. President, I ask
unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without
objection, it is so ordered.
Mr. JAVITS. Mr. President, will the
Senator from Maine yield 5 minutes to
the Senator from New Mexico?
Mr. MUSKIE. Yes, I yield 5 minutes
to the Senator from New Mexico. Then
I shall yield 2 minutes to the Senator
from Florida.
Mr. DOMENICI. Mr. President, I do
not believe I shall take the full 5 min-
utes. As Senators know, I came off a
.campaign recently. I was in a campaign
at the height of the Vietnamese war,
and during my campaign for this office
last fall, I told my fellow New Mexicans
that I pledged my support for those
measures which would insure an end to
this country's involvement in Vietnam.
I have, I believe, lived up to that com-
mitment. I also said that I supported
the so-called Stennis War Powers Act.
I am doing that today.
The Vietnam war divided oiir coun-
try. Families were divided; friendships
were strained over differences in opinion.
The war was not an "American war" be-
cause in a real way Congress had not
declared it such as they did at the time
of the First and Second World Wars.
Mr. President, I feel that this measure,
despite its -imperfections, comes closest
to supporting the philosophy shared by
this country's founders. It was their feel-
ing that the decision to declare war was
so awesome that the President needed the
advice of the people's representatives.
They learned this lesson studying the
causes and effects of "older" Govern-
ment's past decisions.
I agree with their philosophy. The
judgment and responsibility for the de-
cision to wage war have to be shared by
the people through their elected repre-
sentatives. We have again learned that
lesson by our involvement in Vietnam.
God forbid that we should ever have an-
other war or aggression, but if ever such
should occur, it should not be "Kennedy's
war" or "Johnson's war" or "Nixon's
war" but rather an "American involve-
ment."
We have learned the hard way that
when the American people through their
elected Representatives do not share in
a decision to go to war, they do not
bring to it their full support and sense
except one that might possibly be offered. o personal obligation.. The spirit of
I beg the de ut mi 't 1 d b patriotism is absent'. The principle
nori
p y
y ea er- e-
cause we want to be very understanding
about this bill-to advise me on the sub-
j ect.
The Senator from Colorado (Mr.
DOMINICK) gave us notice that he was
going to offer an amendment, No. 375,
and we are about to shut off the consid-
eration of any further amendments.
So, under those circumstances, I sug-
gest the absence of a quorum and ask
unanimous consent that the time not be
charged to either side.
The PRESIDING OFFICER. Without
objection, it is so ordered
established by the war powers bill is that
this country should not be committed to
war without the sanction of the Ameri-
can people through their elected Repre-
sentation.
This bill is constitutionally sound. It
would leave the President ample room
for emergency military action should
the country's security be threatened. I
would not support a limiting bill in that
regard. The emergency provisions incor-
porated in the measure permit the Pres-
ident to.take a wide variety of actions
in defense of the Nation or its citizens
and forces stationed abroad. Thirty days
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CONGRESSIONAL RECORD - SENATE July 20, 1973 ,
seem to be sufficient time for Congress If war should ever come again-God and their elected" Representatives in the
to decide any Presidential actin on its forbid that it should-at least we will go Congress.
merits-to decide if the action. was nec- -Into it k owing that it will have been a There are those who fear that war
essary and if it should be continued. decision at is in the national interests powers legislation might hamper the
In addition, this measure would insure of the country, that there has been a President's ability to respond quickly in
that the American people could come to- national debate, and that there is a case of an emergency. Others have a--
gether in debate to decide if they should chance tq; be heard, under the republican gued that the bill gives powers to the
fully commit themselves to disengage form of government that has been set up. President that he does not now have. I
our military forces for any activity they For these reasons, I look forward to have given careful thought to both argu-
disagree with. This principle also seems casting, niy vote in favor of the bill, and meats and am convinced that the pre>-
paramount in the Constitution and I look forward with great hope that this ent bill strikes the proper balance ' n
necessary for a democracy. great bill will become law this year. giving the President enough flexibility 1o
I have also been most concerned that Mr. J4VITS. Mr. President, I have
the bill would permit the President wide been advised by the deputy minority
latitude for foreign policy actions. I do leader that the amendment I had in
not see any curtailment in that area in- mind will not be offered.
corporated in this legislation. The PRESIDING OFFICER. If there
The act provides no panacea, but I be no further amendment to be proposed,
believe that it can insure that the collec- the question is on the engrossment and
tive wisdom of the President and the third reading of the bill.
Congress will be brought to bear, as the The bill (S. 440) was ordered to be
Constitution provides, when the all- engrosse for a third reading and was
important questions of war and peace read the third time.
are considered. Mr. ROTH. Mr. President, I take this
Justice Joseph Story in 1933 once occasion to reaffirm my support for S.
remarked- 440, the War Powers Act of 1973. I have
It should be difficult in a republic to de- been a s rong supporter of war powers
clare war; but not to make peace. legislation since my first year in the
I believe this measure will leave the Senate in 1917 when I cosponsored a
President sufficient flexibility to nego- predecessor of the present bill. I am
tiate, to freely participate in foreign pleased that the essential features of that
affairs. At the same time, Congress will version, Which owed so much to the ini-
once again assume their proper role of tiative and wisdom of Senator STENNIS,
advise and consent. This idea represents have beeii incorporated in S. 440, I also
democracy. This idea is the premise i want to commend the senior Senator
support. from New York and the junior Senator
Mr. JAVITS. Mr. President, i want to from Missouri who have played major
thank the Senator from New Mexico very roles in shaping this bill.
much, not only for his fine contribution, It is important to have a clear under-
but also for the deep sincerity with standing' of" just what the war powers
which he has made his speech. bill would do and what it would not do.
Mr. MUSKIE. Mr. President, I, too, It provides a determining role for Con-
thank the distinguished senator from gress in any decision to go to war, but it
New Mexico, and I commend him for does not detract-nor as a statute, can it
keeping his campaign promises. detract-din any way from the constitu-
Mr. President, I now yield 3 minutes tional authority of the President as the
to the distinguished Senator from Flor- Commander in Chief of our Armed
Ida. Forces.
Mr. CHILES. Mr. President, I look for- I believe it is clear that the Founding
ward to the opportunity to cast my vote _ Fathers intended that Congress should
In favor of the War Powers Act. I con- have a role in making any decision to go
gratulate the sponsors of the act. to war When they, provided in the Con-
I voted for the War Powers Act at the stitutio' thatonly Congress shall have
last session of Congress, and I feel that the power to declare war. We have
the vote I cast then and the vote I shall learned from our most recent experience
cast today are perhaps the two most im- with war, however, that there are situa-
portant votes I have cast since coming tions where U.S. participation in a major
to the Senate. conflict can result from a series of in-
We have just recently engaged in two cremen l decisions, none of them in it-
Presidential wars, in neither of which self seeming to justify a full declaration
did Congress fulfill its responsibility to of war. In such a case, the respective
carry out its constitutional role. roles of Congress and the President are
I think we should clearly realize that unclear and can be the subject of bitter
we have before us a bill that is not di- controversy, controversy destructive of
rected at the President by limiting the national', unity at the time it is most
power of the President; it is directed at needed. Americans most probably will
Congress. It is necessary because Con- have different views on the wisdom and
gress has failed to carry out its consti- necessity of our entering a war, but de-
tutional duties. There is nothing we can bate should focus on the substance of
1' t th titutiozial the issue, itself that is on the risks and
ns
t
respond to emergencies but not so much
that it undermines the principle of
shared powers and responsibilities which
lies at the heart of our effort. Under the
bill the President would be able to take
action necessary to respond to prevent
an attack or an imminent threat of at-
tack on the United States or its Armed
Forces or to evacuate American civilians
endangered by hostilities abroad, but his
authority to do so would end in 30 days
without further explicit congressional
approval. I think this is ample time for
Congress to meet and make an appr--
priate decision on whether further ac-
tion is necessary or warranted.
I hope that war powers legislation will
be speedily enacted. I also hope that it
will never have to be used. Unfortu-
nately, war powers legislation cannot in
itself make the world any safer a place
for America. There are other ways we
try to do that--by the skillful exercise of
diplomacy, by maintaining a national
Defense Establishment sufficient to deter
any adventurism against us by encotr-
aging the peaceful resolution of disputes
and facilitating greater people-to-people
contacts with both our friends and our
enemies. I think the President deserves
great credit for his many efforts in these
respects.
We cannot, by legislation, change the
interests or Intentions of any other gc v-
ernment in the world. We can, howeti er
insure that our own governmental proc-
esses for handling danger conform to cur
democratic principles and concepts of
checks and balances and shared respon-
sibility between Congress and the Execu-
tive.
Mr. TAFT. Mr. President, the question
of the balance to be struck-between the
executive and legislative branches is at
the very heart of our constitutional fo:."m
of government. Historically, the initia-
tive in foreign policy lies with the Presi-
dent, and I believe practically every
Member of this body would agree that
the executive branch must perform many
important functions in developing and
carrying out U.S. policy throughout
the world. The power exercised by the
President and the excutive branch, how-
ever, must not be arbitrary and unre-
strained. The Constitution specifically
provides, in article I, 'section 8, that the
Congress shall "declare war" and "raise
o imi a co
do by statute
authority of the President. This bill re- implica ons of making or not making and support armies" with the President
quires Congress to carry out its consti- war, an not on the procedures by which under article 2, section 2, provided with
tutional duties. It seems that we have the matter is to be decided. The great the responsibility as Commander in Cb ief
failed to do that. contribution that war powers legislation to conduct war, after receiving congres-
Hopefully, by passing a statute relat- could make -would be to provide a definite sional approval.
ing to ourselves, we can require those and established procedure for deciding Despite this constitutional mandfste,
who sit here today and those who will on war. This would give the public the however, there have been at least 165
sit here in future days to carry out our assurance that whatever decision had instances during the history of this Na-
constitutional duties. That is actually been reached reflected the wisdom and tion when American Armed Forces have
what we are getting at. judgment of both their elected President been committed abroad. On only five x-
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casions has war been declared by the
United States; and as to one of those,
the Mexican war, the declaration oc-
curred after two battles had been fought
with the Congress in 1848 adopting a
resolution stating that the war was com-
menced "unnecessarily and unconstitu-
tionally" by the President.
Apart from declared wars, the Con-
gress has on several occasions, when
American troopa have been committed in
other nations, adopted' measures relat-
ing to :' a propriety of the President's ac-
tion. The legislation which we are con-
sidering today would be in. keeping with
this tradition of legislative approval and
input and by no means inconsistent with
the intent of the framers of our Consti-
tution.
Abraham Lincoln focused upon this
issue some. time ago and I believe that
his thoughts are very pertinent today.
In a letter to Herndon, President Lincoln
stated as follows:
Allow the President to invade a neighboring
nation whenever he shall deem it necessary
to repel an invasion, and you allow him to
do so whenever he may choose to say he
deems it necessary for such puipose, and you
allow him to make war at pleasure. Study to
see if you can fix any limit to his power in
this respect. If today he should choose to
say he thinks it necessary to invade Canada
to prevent the British from invading us, how
could you stop him? You may say to him, "I
see no probability of the British invading
us"; but he will say to you, "Be silent; I see
it, if you don't."
During my service in the House while
on- the Foreign Affairs Committee I in-
troduced war powers legislation, and in
January of 1971, when I began my service
in the Senate, I introduced similar legis-
lation on this issue. Last session I testi-
fied before the Senate Foreign Relations
Committee, stating my concern for ac-
tion in this area and cosponsored the
legislation reported by the Foreign Re-
lations Committee, S. 2956. Unfortu-
nately, the House did not act on this mat-
ter. This year I am cosponsoring S. 440,
and I am hopeful that the Senate will
again approve this legislation. I believe
it is imperative not only from a con-
stitutional viewpoint but also from a
practical position that citizens in this
country, and the representatives have a
voice in formulation of U.S. foreign
policy.
Mr. TUNNEY. Mr. President, this body
votes again today on the War Powers
Act, one of the most important pieces
of legislation to come before the Congress
in a generation. Last year, the Senate
overwhelmingly adopted this act. The
vote underscored bipartisan concern over
the deterioration of the constitutional
mandate to vest the war-making power
in the Congress. The events of the past
year, which saw the President pursue
unilateral military activities in Indo-
china, even after the removal of our
troops and prisoners of war, indicate that
the need for this legislation has not di-
minished at all. I am confident that ip
will be adopted once more by the Sen-
ate, and hopeful that this year the War
Powers Act will become law.
In the 1950's and 1960's Americans
found that our" Armed Forces were in-
volved in repeated actions: in Korea, in
Lebanon, in Vietnam, and in the Domin-
ican Republic. More than 100,000 Ameri-
cans lost their lives in these actions, and
in not one case was there a formal dec-
laration of war by the Congress. This
generation saw peace at home, but suf-
fered from repeated war in remote lands
far from our shores.
The Constitution vests the power to
make war in the Congress. Both the lan-
guage of the Constitution and the his-
torical records of the Constitutional Con-
vention underline the unequivocal con-
clusion of the framers of. the Constitu-
tion that the Congress-not the 'Presi-
dent-was granted the authority to en-
gage our Nation in war.
The Constitution recognizes, however,
that while the Congress has the power
to make war, the President has the pow-
er to execute it. The President, as Com-
mander in Chief of the Armed Services,
has the authority to respond to sudden
attacks, conduct a war once it had start-
ed, and to command the Armed Forces
once they are committed to action.
In an era of nuclear weapons, there is
little likelihood that we will even again
see the relatively massive armed con-
flicts like World Wars I and II. Instead,
there will be more insurgencies, civil
wars, and localized flare-ups which have
marked our most recent history. Such
situations may not be conducive to a
formal declaration of war-in some cases
the parties involved are not even sov-
ereign states. But this does not mean
that the constitutional balance on war-
making, created almost 200 years ago, is
irrelevant. Indeed, the history of our
tragic involvement in Indochina shows
just how dangerous the abandonment of
the constitutional mandate can be. The
Congress and the President must move to
share once again the decisionmaking
power in this vital area of war and peace.
New arrangements can and must be made
to take account of both modern tech-
nology and communications and our his-
torical and constitutional heritage. .
In the past 25 years, there has grown
a severe imbalance in the relative voice
of the Congress and the President in the
warmaking function. Despite the Con-
stitution, despite the consistent tradi-
tional separation of warmaking power,
affirmed by the courts, the executive
branch, and the precedent of a century
and a half of our history, the past gen-
eration has witnessed the dramatic ex-
pai sion of the role of the Executive in
the power to make war.
It has mattered not whether the Presi-
dent was a Democrat or a Republican. In
Korea, in Vietnam, in the Dominican Re-
public, in Cambodia, and in Laos-a
startling variety of locations and activi-
ties-the President of the United States
has committed a large number of Ameri-
can troops-without congressional ap-
proval. Once the Congress was included
in the process, it was faced with inade-
quate information, its was brought into
the decisionmaking process well after the
inception of the crisis, and often it was.
confronted with a fait accompli.
This is not to deny that 'many situa-
tions might require an American military
presence. It is to stress that the methods
selected by recent American Presidents
S 14215
for introducing and maintaining Ameri-
can troops in hostilities indicate that de-
fects exist in the process by which war-
making decisions are made. In response
to the increasing preponderance of the
Executive in this and related areas, it is
essential for the Congress to be involved
and to be aware.
The War Powers Act should help Con-
gress in this effort. It should restore to
the Congress its proper role in the war-
making process. Our foreign policy can
only be enhanced when individual mem-
bers of Congress recognize that they have
the responsibility, on an ongoing basis,
for evaluating properly the foreign as well
as the domestic policies in which our
Nation is involved.
The War Powers Act not only restores
the proper role of the Congress in the
warmaking process. It also reaffirms the
proper role of the Executive. It neither
denies nor limits his authority. Section 3
of the bill defines the emergency condi-
tions in which the Armed Forces of the
United States may be introduced into
hostilities in the absence of the declara-
tion of war of Congress. The President
can respond to any of these emergencies
for a period of 30 days, after which he
must go to Congress-in the absence of
certain extraordinary circumstances-
to sustain the continued use of the Armed
Forces.
Beyond these relatively, limited and
specific categories, the act provides a
final, considerably broader, category
which allows the President to introduce
the Armed Forces . in hostilities in the
absence of a declaration of war for any
reason-but pursuant to specific statu-
tory authorization.
Mr. President, this legislation is ur-
gently needed. It is more important than
ever that the people of America, through
their elected representatives, should be
closely involved in the crucial decisions
of war and peace affecting their lives and
well-being. This act will do this, and ex-
pose these vital decisions to open discus-
sion and consideration, as they should be.
Secret, executive warmaking has led to
repeated tragedy for this great nation,
and contributed more than anything else
to the dissension and bitterness which
have unnecessarily and tragically
plagued our country in the last decade.
The passage of this bill will not only
restore the Congress to its rightful place
in the constitutional scheme of decision-
making, but it will also help restore the
confidence of the American people in
their government, and help to heal the
wounds opened by our most recent ex-
cursions in undeclared warfare.
Mr. HUDDLESTON. Mr. President, I
am pleased to cosponsor and support
S. 440, the War Powers Act.
Now that our Nation has disentangled
itself from a divisive and little-under-
stood war, we have a special opportunity
to learn from the mistakes of the past,
to build on a somewhat unfortunate ex-
periehee and to design for a more secure
future.
Many developments offer encourage-
ment for success: the opening of doors
to China, the visit of Mr. Brezhnev to
our country, the promise of continued
progress at the SALT talks, the conven-
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ing of the East-West Security Conference
in Helsinki, and the President's reaffir-
mation of our Nation's continued com-
mitment and special relationship with
Europe.
We must not, however, permit these
sanguine developments to divert us from
a needed period of -introspection-not a
breast-beating or destructive period-
but a constructive one designed to create
structures and processes that will pre-
clude our repeating mistakes of the past.
Certainly we cannot predict the future
and we cannot foretell and forestall all
possible misadventures.. But we can take
steps to prevent a repetition of those
events and actions we would prefer to
see not happen again.
The war powers legislation before us
reflects the best of our efforts to insure
wiser courses in the future in the use
of U.S. troops abroad.
It is soundly based legislation-not on
some new foundation-but upon the con-
cepts of the past and on a government
of balanced powers conceived almost 200
years ago.
The principal premise of S. 440 is that
the war powers are, under the Constitu-
tion, shared powers and that both the
Congress and the Executive have prerog-
atives-and responsibilities-when U.S.
Armed Forces are to be involved in hos-
tilities abroad.
The prerogatives of the Executive lie
in article II, section 1, of the Constitution
which provides that the "Executive
Powers shall be vested in a President of
the United Statesof America" and in sec-
tion 2 of the same article which specifies
that the President shall be Commander in
Chief of the Army and Navy and shall
have the authority to negotiate treaties
and appoint ambassadors, both, with the
advice and consent of the Senate.
The basis for legislative power in the
committing of troops to hostilities abroad
rests in article I, section 8 of the Con-
stitution which authorizes Congress to
provide for the common defense, to de-
clare war, to raise and support-for up
to 2 years at a time-an Army and Navy,
to make rules to regulate and govern the
military forces; to provide for calling out
the militia to enforce laws, suppress in-
surrection and repel invasion; and to
make all laws necessary and proper for
carrying into execution its formentioned
powers and all other powers vested by the
Constitution in the Government of the
United States, or in any Department or
Officer thereof.
The questions which have arisen over
the exercise of the so-called war powers
derive from interpretations of -these
powers, the intent of the framers of the
Constitution and the practices of history.
Obviously, some of the constitutional
provisions referred to are ambiguous and
overlapping as to exercise. Furthermore,
the courts, thoughout our history, have
been reluctant to rule on cases involving
these powers, as they relate so directly
to the separation of powers.
Still there are interpretations and
there are both notes on and writings by
the participants in the Constitutional
Convention, which provide some guidance
on the meaning of the provisions. These
interpretations and writings suggest,
first of all, that the framers drew a dis-
tinction between offensive and defensive
actions. Alexander Hamilton, for one,
wrote that the Constitution provided
that-
"The Congress shall have power to declare
war", the plain meaning of which is, that it is
the peculiar and exclusive province of Con-
gress, When the nation is at peace, to change
that state into a state of war, whether from
calculations of policy, or from provocations
or injuries received; In other words, it be-
longs to Congress only, to go to war. But when
a foreign nation declares or openly and
avowedly makes war upon the United States,
they are then by the very fact already at
war, and any declaration on the part of Con-
gress is nugatory; it is at least unnecessary.
Second, the power of the President in
the utilization of forces abroad is not
unlimited. Thomas Jefferson, noted
that-
We have already given in example one ef-
fectual check to the Dog of War by trans-
ferring the power of letting him loose from
the Executive to the legislative body, from
those who are to spend to those who are to
pay.
And, Dr. Henry Steele Commager, in
testmony before the Senate Foreign Re-
lations Committee, suggested:
The power to begin a war, is lodged very
clearly in the legislative branch, and the
power; to fight a war, to make the war, is
lodged in the Executive.
Third, there are constitutional and
legal bases for congressional, authority
to set regulations and prerequisites for
the use of U.S. troops abroad. One of
these is the latter part of the necessary
and proper clause, which empowers Con-
gressto enact laws necessary and proper
for carrying out the powers vested by the
Constitution in the Government of the
United States, or in any Department or
officer thereof--in other words, to set
procedures for the Executive, and execu.
tive departments such as Defense or
Stated,, to follow in exercising their au-
thorities. Another, as Prof. Richard B.
Morris pointed out in 1971 hearings be-
fore the Senate Foreign Relations Com-
mittee, is that since-
Congress was given, under the Constitu-
tion, the right to declare war, it has the
right to pass enabling legislation to indicate
just what war is.
Finally, there are a few-a scant few,
to be sure, and mainly from the early
years of our Nation-but a few court
cases; such as the Eliza, the Flying Fish
and Prize cases, which lend credence to
the argument that there must be a con-
gressional basis for the exercise of war
powers.
I believe, therefore, that there is a very
adequate constitutional basis for the war
powers legislation before us, and that, as
Prof.: Alexander Bickel recommended in
the 1971 hearings, the way for Congress
to reassume the constitutional powers it
does have, is to reassume them. Intrinsi-
cally, the war powers bill is an attempt to
redress the imbalance which, by practice
and legislative inaction, grew up between
the Executive and legislature and to re-
place, it with an equilibrium based upon
shared constitutional authorities and
upon, the concepts of a balance of powers
and a separation of powers.
Beyond this, however, there are two
practical bases for the legislation before
us. The first, of course, is that we must
seek to avoid those involvements which
are likely to come .? to be considered as
contrary to our Nation's interest and
lacking of our people's support. I would
be the firstto admit that that is riot an
easy task. The future does not res:.de in
a crystal ball, revealing events and allow-
ing us the luxury of time to examine and
analyze policy options and their implica-
tions. And, even if it did, there would be
no guarantee against fallacies of our own
judgments.
But, not attempting to anticipate sit-
uations and not preparing for passible
alternatives breeds its own ill results. A
divisive war contributes little to a na-
tion. And, there is perhaps nothing less
conscionable` than asking the young men
of a nation to fight in a war with ob-
scure and unnamed` objectives and with-
out home support. As Senator JOHN
STENNIS, the chairman of the P.xmed
Services Committee so eloquently slated:
The overriding issue is that we mist in-
sure that this country never again goes to
war without the moral sanction of the Amer-
ican people. This is important both in prin-
ciple and as practical politics. Vietnam has
shown us that by trying to fight a war with-
out the clear-cut prior support of the Amer-
ican people, we not only risk military inef-
fectiveness but we also strain, and car. shat-
ter, the very structure of the Republic.
At a time when our Nation continues
to have a multitude of commit:nents
throughout the world, as outlined In such
detail in the study of U.S. Security
Agreements and Commitments Abroad,
we must continue to seek ways to avoid
unwanted entanglements.
Beyond that, however, we mus11; as I
noted in the opening paragraphs of these
remarks use this time to seek the crea-
tionof new procedures and structures to
insure a more secure world for ourselves,
our children and all Americans to come.
To do that, we must build at home and
abroad. I have already referred to a
number of the promising developments
abroad. S. 440 is a promising develop-
ment at home.
The war powers legislation represents
one method by which we can strengthen
our domestic processes-one mer:,ns of
bringing the collective judgment of the
Congress and the executive brar.ch to
bear on the use of our Nation's Armed
Forces. It represents one means by which
we-may, hopefully, have- better decisions
and greater cooperation in the future in
the very significant area of warmaking.
It represents one mean by which we
might not only restore a constitutional
balance, but a balance among the views,
opinions, and options of those who have
been selected to lead and the millions
more they represent.
Mr. President, this legislation is the re-
sponsible way for Congress to discharge
its obligations-not only to provide for
this Nation's defense and all thi_t inn-
plies-but also to promote peaceand se-
curity. I urge its adoption by the Senate.
Mr. TALMADGE. Mr. Presider. t, the
single most important decision w,.- as a
nation can make is the decision to go
to.war.
In our Nation's relatively short l:. istory
of 197 years, the Armed Forces :)f the
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United States have been committed
abroad on 174 separate occasions. Yet,
the Congress has formally declared war
only five times.
This means that for every war declared
by the Congress, we have been involved
militarily on over 30 other occasions sole-
ly at the direction of the President.
Our Nation has been at war for 16 of
the last 23 years, and in the last 10 years
alone Presidents have launched major
military interventions in seven different
nations.
In short, Mr. President, since World
War II, our Nation has become greatly
overextended throughout the world, mili-
tarily, politically, and economically, of-
ten without any expressed congressional
mandate.
The expanion of Presidential authority
and the erosion of Congress' role in for-
eign affairs generally and in war policy
specifically have precipitated a constitu-
tional imbalance of grave proportions.
The purpose of S. 440, the so-called
War Powers Act, is to restore that con-
stitutional balance of responsibilities be-
tween the executive and legislative
branches without hamstringing the Pres-
ident in the performance of his duties as
Commander in Chief.
How does this legislation go about ac-
complishing this goal? Stated simply, it
defines the circumstances in which the
President, without prior congressional
authorization, can unilaterally commit
the Armed Forces of our Nation, and the
circumstances in which prior congres-
sional authorization is required before
the President can act militarily.
The starting point, and rightly so, is
the Constitution itself. The bill recog-
nizes that the Constitution vests in the
President the power, even in the absence
of a congressional declaration of war, to
use American forces to repel sudden at-
tacks on U.S. territory or U.S. forces out-
side this country, and to protect U.S. na-
tionals whose lives are endangered
abroad. These emergency powers have
been exercised by various Presidents in
the past, and there is no question that
this authority arises from the President's
independent constitutional office as Com-
mander in Chief.
The bill goes to great lengths to pre-
serve and protect .these constitutional
prerogatives of the President. Recogniz-
ing that ours is a troublesome and peril-
ous world, it further empowers him to
use the Armed Forces to forestall the
-threat of a direct and imminent attack
on this country or this country's forces
abroad.
However, the bill clearly and unequiv-
ocally states that any other use of the
Armed Forces by the President for any
other purpose in any other circumstance
is prohibited, unless specifically author-
ized by Congress by law in advance.
Perhaps most importantly, Mr. Presi-
dent, the bill prescribes procedures by
which the Congress may overrule the
President's exercise of his emergency war
powers.
Any commitment of U.S. forces in-
itiated by the President under the emer-
gency conditions outlined in the bill is
limited to 30 days, unless Congress by
specific legislation authorizes their con-
tinued use.
Moreover, if it disapproves of the Presi-
dent's action, Congress may pass legis-
lation terminating the use of our forces
before the 30-day period has expired.
In my judgment, these provisions are
the essence of the bill. The President,
any President, would stand forewarned
against any emergency use of the Armed
Forces that did not conform with the
law and that would not command the
support of the Congress and the Ameri-
S 14217
the unhappy episode are still strong and
bitter. While such an objective to do
something about future episodes is
laudable, the bill would be highly coun-
ter-productive in this regard. The great-
er likelihood is that of engendering Viet-
nam-type situations in the future, rather
than preventing them.
The Constitution's meaning regarding
deployment of our Armed Forces abroad
has become well defined in these past
185 years. This has come about not only
through the explicit language of the
American troops into action because of
some vague treaty commitment or ex-
ecutive agreement.
Let us have no more of this implying
or inferring after-the-fact approval of
a Presidential war because of congres-
sional passage of an appropriations bill
providing supplies and ammunition to
troops already in the field of battle.
Finally, Mr. President, in cosponsor-
ing and supporting this legislation, my
intention is not to criticize those Presi-
dents whose administrations have
spanned the Vietnam war. My desire is
not to strip the Commander in Chief of
his rights and responsibilities under the
Constitution. Nor am I motivated by jeal-
ously or animosity toward the executive
branch. If any indictment lies, it more
appropriately lies with the Congress
which has stood mute while its constitu-
tionally vested role in war policy and de-
cisions was eroded.
In answering the question of why, after
197 years, a war powers bill is needed
now, let me restate what I said at the
outset: The single most important deci-
sion we as a nation can make is the de-
cision to go to war. I strongly feel that
we must make that decision as a nation.
In the recent past, however, the Presi-
dent, acting virtually alone, has deter-
mined whether we followed a course of
war or peace. This is not right. It is the
people who should decide this course,
through their elected representatives.
The decision is too great for one man to
make alone.
The War Powers Act, S. 440, is a step
in the right direction toward restoring
this authority and this responsibility to
the people and creating a better and
more effective partnership between the
Congress and the executive branch in
foreign affairs.
Mr. HRUSKA. Mr. President, I rise in
opposition to the bill S. 440 "to make
rules governing the use of the Armed
Forces of the United States in the ab-
sence of a declaration of war by the Con-
gress."
This is a bill which seeks to legislate
in a field of constitutional considera-
tions; to try to effect a change in powers
granted to the President by the Con-
stitution.
To the extent it does so, it will be
totally ineffective, and without force or
effect, except perhaps to confuse, delude,
and even render affirmative harm.
it is quite clear that wide sympathy
for the bill is based upon a desire to do
something about future Vietnams. This
is understandable because memories of
literally scores of instances.
Such development and usage have
served our Republic well. Even if a
statute could change them, it would not
be wise to do so. -
But it is respectfully submitted that
the pending measure cannot alter that
which the Constitution confers. It is to
this proposition that I address myself.
Under the Constitution the power to
declare war, to raise and support the
military, and related powers, are vested
in the Congress.. The power to command
and to deploy the Armed Forces is vested
in the President as Commander in Chief.
As Prof. Eugene Rostow pointed out in a
debate with Prof. Alexander Bickel at
Yale Law School last October, this is a
typical example under our Constitution
of divided power which is also shared.
There are many other examples as well.
Before us now is a bill designed to de-
fine the limits of the President's author-
ity in this area. This is, so it is claimed,
a restorative measure, offered to insure
that Congress may freely exercise those
.powers the Constitution and the courts
have said it already has. But in attempt-
ing to make specific what the Constitu-
tion has left general, and in trying to
define in advance the outer limits. of the
President's authority to act in the inter-
est of national security, S. 440 charts a
precarious constitutional course.
Congress cannot by legislation draw to
itself power meant to be shared at the
least, and at the most to be exercised by
a coequal branch of goz?ernment. If S.
440 does this, it is unconstitutional. If it
does not, it amounts to a useless surplus-
age which could easily lead to misunder-
standing both within and outside this
country.
Does the power of Congress to partici-
pate in the warmaking process need to
be restored? I think history argues to
the contrary. There have been close to
200 instances in which this country has
employed military force. There have been
but five formal declarations of war dur-
ing this period, with perhaps- six addi-
tional congressional authorizations. This
Senator is compelled to agree with Pro-
fessor Rostow, who asserted during the
previously mentioned debate with Pro-
fessor Bickel at Yale, that there has been
no substantial change in recent years in
the pattern of constitutional usage re-
garding the division of the war powers
between Congress and the Presidency.
Mr. President, I am most fearful that
what we have in S. 440 is not an effort to
restore atrophied authority-an author-
ity which is as alive and viable now
as it was when the Constitution was
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CONGRESSIONAL RECORD - SENATE July 20, 1973
framed-but is instead an attempt to approach this subject in the proper vested in the President. James Madison and
amend the Constitution by a simple leg- fashion. We have amended the Constitu- Elbridge Gerry then jointly moved to sub-
islative act. tion from time to time. It can be done stitute the word "declare" for the word
Cases have been put forward in sup- again, if need be. But I do not believe make," thus "leaving to the Executive " in
their
port of this legislation which; in the opin- bills like S. 440 can legally be utilized to taeks.' words, Here then was as power the e Cune! Convention sudden s n ec at-
port
of this Senator, represent extremely
dubious legal precedent. A prime example
is the case of Youngstown Sheet and
Tube Co. v. Sawyer, 343 U. 579 (1952).
This decision related to a purely domestic
effort to take over the major steel mills
of this country. If the case stands for
anything at all, it is the reaffirmation of
the President's authority to `act as Com-
mander in Chief in response to external
threats as expressed in the following lan-
guage from the opinion by justice Jack-
son:
We should not use this occasion to "cir-
cumscribe", much less to contract, the law-
ful role of the President as Commander-in-
Chief. I should indulge the widest latitude of
interpretation to sustain his exclusive func-
tion to command the instruments of national
force, at least when turned against the out-
side world for the security of our society.
Other cases such as United States v.
Midwest Oil Company, 236 U.S. 459
(1915), are not only of questionable sup-
port for the limitations draNvn in S. 440,
but may actually provide precedent for
the oppositionpoint of view;
These cases and all other relevant de-
cisions need to be analyzed and placed
in their proper perspective by recognized
constitutional scholars. Existing bodies of
opinion need to be gathered within a logi-
cal framework of study. The Judiciary
Committee is the place to do this, Mr.
President, not the Senate floor.
Reasonable men often differ on ques-
tions of great moment. The approach
taken in this legislation has been gen-
erally supported by Professor Bickel of
Yale, and opposed by Professor Moore of
the University of Virgini%--both men
distinguished legal scholars, This type of
disagreement is not new. But the fact
that there is some basic disagreement
on what Congress can do under the Con-
stitution by attempting to legislate in
this area only underscores the fact that
we must proceed with great caution.
We will soon celebrate our 200th year
as a Republic. The basic war powers pro-
visions in the first two articles of our
Constitution have remained as the guid-
ing principles throughout our history,
throughout the almost 200 incidents
where armed force was employed by this
country outside its borders. It is late in
the day for us to now proclaim that we
must have legislation now to improve
this balance of power, to somehow make
it balance better. Mr. President, either
something balances or it does not. And
as I read the Constitution, the balance
is there-and has been all along. The
Congress has been playing its role all
along, through the use of the purse-
strings, regulation of the size of the mili-
tary, and expressions of viewpoints
either in accord with or in opposition to
policies taken by the executive branch.If
the results have not always turned out
to our liking, this does not Inean that the
Constitution is at fault-only ourselves.
If it Is felt that the provisions of the
Constitution dealing with war powers
are indeed in need of revision, let us then
do this,
Mr. President, scholarly literature on
this st bjest is quite volumious. One of
the better papers is the one delivered
before, the Subcommittee on National
Security Policy and Scientific Develop-
ment (Committee on Foreign Affairs) in
the House of Representatives on July. 1,
1970. The witness was the Honorable
William H. Rehnquist, then Assistant
Attorney General, Office of Legal Coun-
sel. He is now a Justice of the United
States, I ask unanimous consent that the
text of his statement be printed at the
conclusion of my remarks.
Mr. II President, the Senate would do
well to reject this pending bill.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
STATEMENT OF WILLIAM H. REHNQUIST
Mr. Chairman: I am pleased to appear be-
fore the Subcommittee this morliing to dis-
cuss the constitutional division of war-mak-
ing authority between the President and
Congress. I shall discuss the legal and his-
torical authorities which seem to me relevant
on this question. I have tried to make my-
self familiar with a number of the bills and
resolutions which are currently before this
Subcommittee and would be happy to an-
swer questions on them. However, my pres-
entation will be addressed to the overall con-
stitutional question presented and will not
focus specifically on these proposals.
As Mr. Stevenson has already pointed out,
the constitutional question under consid-
eration is an exceedingly difficult: one. Both
the President and Congress have some
measure of authority over war-making. The
Congress is specifically granted the powers
"to raise and support armies," "provide for
the common defense", "to declare war, grant
lettem of marque and reprisal, and make
rules !concerning captures on `land and
water," "provide and maintain a navy," "to
make rules for the government and regula-
tion of the land and naval forces," and "to
make all laws which shall be necessary and
proper for carrying into execution the fore-
going powers. .. The President, on the
other hand, is designated as the "Com-
mander-in-Chief of the Army and Navy of
the United States" and is directed to "take
Care that the Laws be faithfully executed."
This textual allocation of authority readily
suggests that a division of the Nation's war
power, between the President and Congress
was intended. An examination of the pro-
ceedings of the Constitutional Convention
confirms that suggestion. Those proceed-
ings clearly indicate that the Framers did
not intend to precisely delimit the boundary
between the Executive Branch and that of
the Legislative Branch. While the Framers
rejected the traditional power of kings to
commit unwilling nations to war, they at
the same time recognized the need for quick
Executive response to rapidly developing in-
ternational situations. -
The:. accommodation of these two interests
took place in the session of the Convention
on Friday, August 17, 1787. On that date,
the convention was discussing draft lan-
guage;which would have empowered Congress
"to make war". The Convention, of course,
ultimately decided to confer instead the
power "to declare war". The debate which
led to this change, I believe, is illuminating.
Charles Pinckney urged that the war-mak-
ing power be confided to the Senate alone,
while, Pierce Butler asked that the power be
ognition of the need for Swift Executive
response in certain situations. Rufus :King
supported substitution of the word "der: are"
on the ground'-that the word "make" might
be understood to mean "conduct war" which
he believed to be an Executive function. It is
interesting to note that when the first vote
on the motion was taken, there were two
votes in favor of retaining "make." However,
after Mr. King made his point regarding the
conduct of hostilities, the representative
from Connecticut, Mr. Ellsworth, changed
his vote to support the substitution. ''hus,
the only dissenting vote was that of New
Hampshire. Pinckney's motion to strike out
the whole clause and thereby presumably
vest the entire war-making power in the
Executive was then defeated-by voice vo;e.
The Framers were painting with an ex-
tremely broad brush; they likely realized that
it would be unwise to attempt to fix in detail,
and to freeze, the allocation of authority
between the President and Congress. The
Framers undoubtedly recognized the wide
variety of international Situations S,hich
might arise and saw fit to do no more than
announce general contours of the authority
of the President and Congress. Several c,f the
pending legislative proposals are, I believe,
inconsistent with this salutary approacl, and
I believe for that reason that their enact-
ment would be unwise.
The Convention debate indicates that the
Congress has exclusive authority over some
phases of war-making and that the :?resi-
dent has similar authority over others. Con-
gress, for example, is the only branch of gov-
ernment which can formally declare wer. On
the other hand, the President has uru'e-
stricted and exclusive authority to repe: sud-
den attacks. It is between these two ends of
the spectrum that the question of deploy-
ment of troops or commitment of them to
limited hostilities arises. In this aria of
"shared power," an attempt must be made
to understand the process of decision leading
to the deployment and commitment to com-
bat of our Armed Forces. There are many
historical precedents. On numerous occa-
sions the President has consulted the Con-
gress before taking action; on numerous
others, he has not. If these precedents de-
monstrate anything, they demonstrate that
different situations require different re-
sponses and procedures, and that hart and
fast rules should be avoided.
The Cuban missile crisis is a case in point.
In that instance, it should be notet that
Congress has enacted a joint resolut'.on in
September, 1962, before the-Russian missiles
were discovered. The language of the resolu-
tion was quite broad and it arguably author-
ized President Kennedy's later act- on. I
would suggest, however, that even without
that resolution President Kennedy's action
was entirely consistent with the corsjltu-
tional framework. Although there hat; been
no actual attack on the United States and
it therefore could not be said that President
Kennedy was repelling a sudden attack, the
situation was a grave one and the threat to
the Nation's security necessitated a speedy
and effective response. The situaticn re-
quired immediate action, and there was in-
sufficient time after the discovery of the
missiles and launching apparatus for :'ormal
consultation with Congress. In my judg-
ment, it would be a great mistake to attempt
to prevent a President from responding im-
mediately to a similar threat arising in the
future.
I should like to turn my attention now to
the suggestion which hassnow gained cur-
rency in some quarters; namely, that; Con-
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grass in recent decades has relinquished its There had been no prior authorization by 354 U.S. 1. If a congressional declaration of
constitutional authority over war-making to Congress for Taylor's march south of the war would be required in other circuangtances
the President. Stated categorically, this con- Nueces. Justice Grier, in his opinion in Tice to commit United States forces to hostilities
tention cannot withstand an examination of Prize cases, commented on this fact, stating: to the extent and nature of those under-
the record. In the first place, recent Presi- "The battles of Palo Alto and Resaca de la taken in Korea, the ratification of the United
dents have repeatedly called upon Congress Palma had been fought before the passage Nations Charter would not obviate a like
to share in expressing the determination of of the act of Congress of May 13, 1846, which requirement in the case of the Korean
the United States to meet foreign aggression, recognized 'a state of war as existing by the conflict.
Congress, of course, enacted the Gulf of act of the Republic of Mexico."' 2 Black 634. Presidents have likewise used their author-
Tonkin Resolution at the request of Presi- In 1854, President Pierce approved the ac- ity as Commander-in-Chief to deploy United
dent Johnson. Similarly, Congress enacted tion of the naval officer who bombarded States forces throughout the world. Critics
resolutions in 1962 in regard to Cuba and in Greytown, Nicaragua in retaliation against a of President Wilson claimed that his action
1958 in connection with the Middle East. In revolutionary government that refused to In arming American merchant vessels in early
each of these instances, Congress and the make reparations for damage and violence to 1917 precipitated our entry into the First
President acted together, and thus presented United States citizens. This action was up- World War.
a united front to the world. Where time per.. held by Justice Samuel Nelson, a Justice of Similarly, President Roosevelt's critics
mits consultation, this unity should be the Supreme Court of the United States, sit- have asserted that various actions he took
sought for it is unquestionably in the best ting as a Circuit Justice in Durand v. Hollis, to aid the Allies in the year 1941 played a
interests of the nation that Congress and the 4 Blatch, 451 (1860). In his opinion in that part in our involvement in the Second World
President speak with a single voice on such case, Justice Nelson said: Wdr. Whatever substance there may be to
a subject. . "The question whether it was the duty of these criticisms, the Presidential actions do
Congress, then, has exercised its constitu- the President to interpose for the protection stand as the constructions placed by those
tional authority in recent years. This is not of the citizens at Greytown against an irre- two Presidents on their power as Commander-
to say, however?that Congress must always sponsible and marauding community that in-Chief of the Armed Forces.
be consulted before American Armed Forces had established itself there, was a public po- I do not contend that these historical
are deployed or committed to hostilities litical question, in which the government, as precedents establish the principle that the
abroad. There are numerous instances in our well as the citizens whose interests were in- president alone has authority to deploy and
history in which Presidents have deployed volved, was concerned, and which belong to commit American 'Armed Forces abroad. I
American Armed Forces outside of the United the Executive to determine; and his decision mention them for the purpose.of demon
States in a way which invited hostile retalia- is final and conclusive, and justified the de- staating that throughout our history our
tion from a foreign power. Congress has on fendant in the execution of his orders as Sec- Presidents have, on occasion, deployed
some of these occasions acquiesced in the retary of the Navy." 4 Blatch. 454-455 (em- American forces without first obtaining con-
President's action without formal ratifica- phasis supplied). gressional authorization. To be sure, our
tion; on others it has ratified the Presi- In April, 1861, President Lincoln called for recent Presidents have engaged in the same
dent's actions; and on still others it has 75,000 volunteers to . suppress the rebellion practice, but in view of the similarity be-
taken no action at all. On several of the by the southern
of the Cstates,acd proclaimed a tween the practices followed this century
occasions, individual members of Congress, blockade y. These actions and last it cannot be validly contended that
and, at the close of the Mexican War, one were taken prior to their later ratification congressional authority has eroded in recent
House of Congress, on a preliminary vote, by Congress in July, 1861: The Supreme years Far from demonstrating any weak-
have protested Executive use of the Armed Court upheld the validity of the President's ness in 'our system, the events of the last two
Forces. While a particular course of Execu- action in proclaiming a blockade in the Prize hundred years confirm the wisdom of the
tive conduct cannot conclusively establish Cases. flexible design set out in the Constitution.
a constitutional precedent in the same man- In 1900, President McKinley sent an expe- I would close by stating the obvious fact
ner as it would be accomplished by an au- dition of 5000 United States troops as a com- that this is an area in which cooperation be-
thoritative judicial decision, a long-contin- ponent of an international force during the tween the President and Congress is vitally
ued practice on the part of the Executive, ac- Boxer Rebellion in China. While Congress Important. The suggestion that the power
quiesced in by the Congress, is itself some recognized the existence of the conflict by of Congress has somehow "atrophied" is un-
evidence of the existence of the constitu- providing for combat pay, it neither declared tenable. If Congress had occasion to com-
tional authority necessary to support the war nor formally ratified the President's plain of President Truman in 1950, it had
practice. As stated by Justice Frankfurter in action. equal occasion to complain of President Polk
his concurring opinion in Youngstown Sheet Similar Incidents in Central America took in 1846
& Tube Co. v. Sawyer, 343 U.S. 579, 610. place under the administrations of Presidents The Framers did not set up a checkerboard
"The Constitution is a framework for gov- Theodore Roosevelt, Taft and Wilson. Naval of rigidly marked alternately colored squares
ernment. Therefore the way the framework or armed forces were sent to Panama, Nicara- with one color assigned to the President and
is consistently. operated fairly establishes gua, and twice to Mexico in the first two dec- the other to Congress. They designed a more
that it has operated according to its true ades of the Twentieth Century. On none of flexible plan for joint responsibility which
nature. Deeply embedded traditional ways of these occasions was there prior congressional left room for "play at the joints." Indis-
conducting government cannot supplant the authorization. putably belonging to Congress alone is the
Constitution or legislation, but they give Prior to the Vietnam conflict, the most re- decision as to how much money shall be
meaning to the words of the text or supply cent example of Presidential combat use of appropriated to the raising and supporting
them." 346 U.S. at 610. American forces without congressional de- of United States military forces. Indispu-
The historical examples have been mar- claration of war was President Truman's in- tably belonging to the President alone is the
shaled in numerous recent studies of the tervention in the Korean Conflict. In many power to repel sudden attacks, the power to
President's powers, and I will but summarize senses, this Is undoubtedly the high water determine how hostilities lawfully in prog-
some of them briefly. mark of Executive exercise of the power of ress shall be conducted, and the power to
President Jefferson, in 1801, sent a small Commander-in-Chief to commit American protect the lives and safety of U.S. forces
squadron of American naval vessels into the - forces to hostilities. In the field. The middle ground is under-
Mediterranean to protect United States com- Following the invasion of South Korea by standably, less clearly delineated, but there
merce against the Barbary pirates. He was of the North Koreans in June, 1950, and a re- are guideposts based both on historic us-
the view that for these ships to take offen- quest for aid by the United Nations Security age and the language of the Constitution
sive, as opposed to defensive, action, con- Council, President Truman ordered air and which shed light on the proper allocation
gressional action would be necessary. Yet it sea forces to give South Korean troops cover of responsibility in particular cases. More
is worth noting that by dispatching these and support and ordered the Seventh Fleet than this' the Framers wisely did not at-
warships to the Barbary Coast to protect to guard Formosa. Ultimately 250,000 troops tempt; and I seriously question whether
United States commerce from piracy, Jeffer- were engaged in the Korean War which lasted their decision on this point should, even
son invited retaliation. for more than three years, if it could, be reversed by enactment of legis-
In 1845 President' Polk ordered military President Truman relied upon the United lation now pending before the Committee.
forces to the coast of Mexico and to the west- Nations Charter as a basis: for his action, as The enactment of legislation which would
ern frontier of Texas in order to prevent any well as his power as Commander-in-Chief. lay down specific guidelines as to the respec-
interference by Mexico with the proposed The fact that his actions were authorized tive constitutional roles of the President
annexation of Texas to the United States. by the United Nations Charter, however, does and Congress, runs counter to each of these
Following annexation in 1946, Polk ordered Not reduce the value of the incident as a principles.
General Zachary Taylor to march from the precedent for Executive action in committing Mr. ROBERT C. BYRD. Mr. Presi-
Nueces River which Mexico claimed as the United States Armed Forces to extensive dent, I rise in support of S. 440, the war
southern border of Texas, to the Rio Grande hostilities without a formal declaration of bill, of which I am a cosponsor.
River, which Texas claimed as her southern war by Congress. The United Nations Charter powers boundary, and beyond. While so engaged, was ratified by the Senate and has the status No legislation, in my judgment, is more
Taylor's forces encountered Mexican troops, of a treaty, but it does not by virtue of this essential than is this bill in the efforts
and hostilities between the two nations com- fact override any constitutional provision. of the Congress of the United States to
menced on April, 25, 1846. Geofroy v. Riggs, 133 U.S. 258; Reid v. Covert, restore a proper balance between the
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executive and legislative branches of
government.
The significance of this bill, however,
goes beyond that immediate and desir-
able objective. It is important to all cit-
izens as well, inasmuch as the life of
every citizen of this RepublLe can be of-_
fected by the far-reaching decisions
which may be made with respect to the
questions of war and peace.
This bill plows no new ground. It seeks
instead, to reaffirm and to reestablish the
original intent of the framers of the
Constitution. Its aim, in the simplest
terms, is to set forth guidelines for the
use of the Armed Forces of the United
States in so-called "undeclared wars,"
so that in the future the best judgment
of both the Congress and the Chief Ex-
ecutive may jointly be brought to bear
upon the problem at hand.
Not only the events of recent years, but
also the use of U.S. forces in. undeclared
hostilities by Presidents in years past,
make this legislation necessary. Passage
of this bill is especially important at this
point in our history when the United
States is moving toward a reassessment
of its responsibilities and its future role
as a world power. The approval of this
bill is needed so that in the future there
may be no mistake and no misunder-
standing about the circumstances In
which our Armed Forces may be used
without a declaration of war by the Con-
gress.
The authority of the President of the
United States to act appropriately in an
emergency Is not impaired by this bill.
Section 3 of this measure spells out in
detail the conditions or circumstances
under ' which the President, as Com-
mander in Chief, can act to repel or fore-
stall sudden attacks, or to protect U.S.
citizens whose lives might be endangered
abroad. Subsections (1), 12), and (a)
codify the implied power of the Presi-
dent to act in emergency situations. Sub-
section (4) of section 3 deals with the
delegation by Congress of Additional au-
thority to the President through statu-
which the President and the CongreW,
working together, could act to deal with
any contingency which might arise.
It is this provision of the bill which
would be brought into play in any future
situation such as that from which we
are only now extricating ourselves in
Indochina. The language here would re-
quire that the Congress participate with
..
Ped
in any decisitm to ailthnrI9.e
he
en
n
ed Forces ii
A
f th
anon -
...
rm
^.__?-
use o
e
other than the three emergency cage- this wise and wonderful foundation for the earliest days of the Republic, all
gories of sudden attack upon the United our Republic and understand the evolu- three branches of the Federal Govern-
States, attack upon its Armed Forces, or tion ! of the war power's exercise, it ment have recognized that this is not so,
the protection of its natials abroad, would be appropriate to look back over and that not every armed confliA be-
Section 5 of the bill provides the 30- a period of events beginning 196 years tween forces of two sovereigns is "war."
day limitation upon emergency action ago next month. This fact affords no final answer to the
by the President, and seems to me to be DIVISION OF THE WAR POWER constitutional question of the division of
as satisfactory a solution as may be de- The draftsmen of the Constitution authority between the President and
vised to the problem of reconciling the clearly intended to divide the war power Congress in exercising the war :Dower,
necessity for swift retaliatory action in between the President and Congress, but but it does suggest that the effort ;o find
the event of attack with the constitu- just as clearly, did not intend to precise- an answer is not advanced by a mechani-
tional requirement that Congress make ly define that boundary. They rejected cal application of labels to various fact
the ultimate judgment upon the question the traditional power of kings to commit situations.
of waging war. unwilling nations to war to further the Congress, during the so-called unde-
It is not my purpose in these brief re- king's international political objectives. clared war with France which lasted
marks to go into more detailed aspects At the same time, they recognized the from 1798 to 1800, authorized by statute
of S. 4;40. Suffice it to say, I think, that need for quick presidential response to
this is a bill whose time has come. Presi- rapidly developing international situa-
dential warmaking must be brought un- tions.
der control. The Congress must reassert The accommodation of these two in-
itself in this vital area in which the Con- terests took place in the session of the
stitution makes it so unmistakably clear constitutional convention on Friday,
that the legislative branch bears the ul- August 17, 1787, when the enumeration
timate, responsibility. The disclosures of the powers of Congress were sub-
this week of the hundreds of secret U.S. mitted to the delegates. A- discussion oc-
bombitg raids carried out over Cambodia curred on the draft language empower-
and Lp:os-and the falsification of re- ing Congress "to make war."
ports concerning them-sharply under- As reported by James Madison,
k-
th
t th
scores the necessity for action.
If war is too important a matter to be
left tothe generals, it is also too import-
ant a platter to be left to the Commander
in Chief alone. This is not to suggest that
the Congress is infallible in its-wisdom.
But in times when national commit-
mentslmay require action, or in times of
national peril, the collective best judg-
ment of the Nation's elected leaders-
legislative and executive together-is the
Nation's one best hope of following the
right course of action.
Mr. DOLE. Mr. President, the War
Powers Act before the Senate today is a
proposal of substantial importance to
the Nation. It steps into one of the Con-
stitution's uncharted gray areas and
attempts to establish some clear lines of
authority, responsibility and direction
where' now there is only the ambiguity of
yester'day's history and the uncertainty
of tomorrow's events and circumstances.
The war power is one of the most :lm-
portaut aspects of nationhood. It is a
country's ability to defend Itself and
assert its rights in the world. Over the
course of history the war power has been
abused by some nations, and the right of
self defense has undergone a cancerous
mutation into a tool of aggression. But
as we look back at other nations and
the history of wars between them, we see
that the abuse of the war power did not
usually originate with the nation itself,
its people. Rather this abuse grew out
of improper allocation or assumption of
the ability to use the war power. Some-
times'this wrongful use of the war power
could' be traced to structural deficiencies
in the government. In other cases the
struc~ure was sound, but individuals or
groups within the structure were unwise,
subject to error or manifestly evil.
e warrna
a
Charles Pickney urged
ing power be confided to the Senate
alone, while Pierce Butler urged that the
power be vested in the President. James
Madison and Elbridge Gerry then jointly
moved to substitute the word "dec:are"
for the word "make," "leaving to the
President the power to repel sudden at-
tacks." John Sherman expressed a pref-
erence to "make" as opposed to "de-
clare," because the latter was too narrow
a grant of power. However, he expressed
the view that the grant of power to Con-
gress to "make" war would nonetheless
permit the President to repel attack, al-
though not to commence war. Gera' and
George Mason opposed the giving of the
power to declare war to the President.
Refus King supported the substitution
of the word "declare," urging that the
word "make" might be understood to..
mean "conduct" war, which later was a
presidential function.
With only New Hampshire dissenting,
it was agreed that the grant to Congress
should be of the power to declare war.
Pinckney's motion to strike out the
whole clause, and thereby presumably to
leave the way open to vest the entire
warmaking power in the President, was
then defeated by a voice vote.
The Framers of the Constitution, in
making this division of authorit:,' be-
tween the executive and the legislative
branches, did not make a detailed al-
location of authority between the two
branches. But nearly 200 years of prac-
tice has given rise to a number of prece-
dents and usages, although it cannot be
confidently said that any sharp I".ne of
demarcation exists as a result of this
history.
RECOGNITION OF ARMED CONFLICT SHORT OF
"WAR"
Out country, however, has had the Before turning to historical practice
blessing of a sound constitutional frame- for the light which it-throws upon the
work which has given full opportunity for proper interpretation of the President's
good'to prosper, has given room for power, let me first dispel any notio::t that
error' to be discovered and has never the United States may lawfully engage
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limited use of this Nation's Armed Forces
against those of France. The fifth Con-
gress, 1 Statute 578.
In the 'liza, a case arising out of this
"undeclared war," the Supreme Court
described differences between war and
other armed conflicts as being differ-
ences between "solemn war" and "im-
perfect war:"
If it be declared in form, it is called
solemn, and is of the perfect kind: because
one whole nation declaring war are au-
thorized to commit hostilities against all the
members of the other, in every place and
under every circumstance. In such a war,
all the members act under a general au-
thority, and all the rights and consequences
of war attach to their condition.
But hostilities may subsist between two
nations, more confined in its nature and
extent; being limited as to places, persons
and things; and this is more properly termed
imperfect war; because not solemn, and be-
cause those who are authorized to commit
hostilities act under special authority and
can go no further than to the extent of
their commission. The Eliza, 4 Dall. 37, 40-41.
(NoTE.-In that case, a French privateer
took possession of an American ship that
was later recaptured by Americans who
claimed entitlement to payment from the
ship's owners. The questions arose in inter-
pretation of two statutes as to what they
were entitled to. To answer that question,
the Court had to decide whether we were at
war with France.)
While the Court termed both forms of
military action "war," the distinction
which it drew likewise separates the de-
clared wars of the 20th century, such as
the two World Wars, and the undeclared
armed conflicts such as have more re-
cently occurred in Korea and in South-
east Asia. In both of the two World Wars,
the declarations of war were viewed by
the executive branch to authorize com-
plete subjugation of the enemy, and
some form of "unconditional surrender"
on the part of the enemy was the an-
nounced goal of the allied nations. In
Korea and Vietnam, on the other hand,
the goals have been the far more limited
ones of the maintenance of territorial
integrity and of the right. of self-
determination.
As has been pointed out many times,
the United States throughout its history
has been involved in armed conflicts
short of declared war, from the unde-
clared war with France in 1798-1800 to
Vietnam. I will discuss the more signifi-
cant of these involvements later.
THE PRESIDENT AS COMMANDER IN CHIEF
Because of the nature of the Presi-
dent's power as Commander in Chief and
because of the fact that it is frequently
exercised in foreign affairs, there are few
'judicial precedents dealing with the sub-
ject. Such judicial learning as there is
on the subject, however, makes it rea-
sonably clear that the designation of the
President as Commander in Chief of the
Armed Forces is a substantive grant of
power, and not merely a commission
which treats him as a Supreme
Commander.
Chief Justice Marshall, writing for the
Supreme Court in Little v. Barreme (2 Cr.
170) concluded that the seizure of a ship
on the high seas had not been authorized
by an act of Congress, in the course of
the opinion, he stated:
It is by no means clear that the President
of the United States, whose high duty it is
to take care that the laws be faithfully
executed, and who is commander in chief
of the Armies and Navies of the United
States, might not, without any special au-
thority for that purpose, in the then existing
State of things, have empowered the officers
commanding the armed vessels of the United
States, to seize and send into port for
adjudication, American vessels which were
forfeited by being engaged in this illicit com-
merce, 2 Cranch at 177.
Justice Grier, speaking for the
Supreme Court in its famous decision in
the Prize cases, likewise viewed the Pres-
ident's designation as Commander in
Chief as being a substantive source of
authority on which he might rely in put-
ting down rebellion:
Whether the President in fulfilling his
duties, as Commander in Chief, in sup-
pressing an insurrection, has met with such
armed hostile resistance, and a civil war of
such alarming proportions as will compel
him to accord to them the character of
belligerents, in a question to be decided by
him, and this court must be governed by the
decisions and acts of the political department
of the Government to which this power was
entrusted. He must determine what degree
of forces the crisis demands. 2 Black 625, 670.
More recently, Justice Jackson, con-
curring in Youngstown Sheet and Tube
Co. against Sawyer, said:
We should not use this occasion to circum-
scribe, much less to contract, the lawful role
of the President as Commander In-Chief. I
should indulge the widest latitude of inter-
pretation to sustain his exclusive function
to command the instruments of national
force, at least when turned against the out-
side world for the security of our society, 343
U.S. 579, at 645.
The limits of the President's power as
Commander in Chief are nowhere de-
fined in the Constitution, except by way
o. negative implication from the fact
that the power to declare war is com-
mitted to Congress. However, as a result
of numerous occurrences in the history of
the Republic, more light has been thrown
on the scope of this power.
SCOPE OF POWER AS COMMANDER IN CHIEF
The questions of how far the Chief
Executive may go without congressional
authorization in- committing American
military forces to armed conflict, or in
deploying them outside of the United
States and in conducting armed conflict
already authorized by Congress, have
arisen repeatedly through the Nation's
history. The President has asserted and
exercised at least three different varieties
of authority under the power as Com-
mander in Chief;
First, authority to commit military
forces of the United States to armed.
conflict, at least in response to enemy
attack or to protect the lives of Ameri-
can troops in the field.
I might add that this is precisely the
type of authority we are talking about
today, with reference to the Church-
Cooper resolution.
Second, authority to deploy U.S.
troops throughout the world, both to ful-
fill U.S. treaty obligations and to pro-
tect American interests; and
Third, authority to conduct or carry
on armed conflict once it is instituted,
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by making and carrying out the neces-
sary strategic and tactical decisions in
connection with such conflict.
Congress has on some of these occa-
sions acquiesced in the President's ac-
tion without formal ratification; on
others, it has ratified the President's
action; and on still others, it has taken
no action at all. On several occasions,
individual Members of Congress have
protested presidential use of the Armed
Forces. At the close of the Mexican War,
the House of Representatives went so
far as to pass an amendment to a pend-
ing resolution, labeling the war as un-
necessary and unconstitutional. On
final passage, the amendment was de-
leted. Although the President's actions,
to which there was no opportunity for
the Congress to effectively object, cannot
establish a constitutional precedent in
the same manner as it would be estab-
lished by an authoritative judicial deci-
sion, a long continued practice on the
part of the President, acquiesced in by
the Congress, is itself some evidence of
the existence of constitutional authority
to support such a practice. United States
v. Midwest Oil Co., 236 U.S. 459. As
stated by Justice Frankfurter in his con-
curring opinion in Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 610:
The Constitution is a framework for Gov-
ernment. Therefore, the way the framework
has consistently operated fairly establishes
that it has operated according to its true
nature. Deeply embedded traditional ways
of conducting government cannot supplant
the constitution or legislation? but they give
meaning to the words of a text or supply
them.
COMMITMENT OF MILITARY FORCES TO ARMED
CONFLICT WITHOUT CONGRESSIONAL AUTHOR-
IZATION
President Jefferson in 1801 sent a
small squadron of American naval ves-
sels into the Mediterranean to protect
U.S. commerce against threatened at-
tack by the Barbary pirates of Tripoli.
In his message to Congress discussing
his action, Jefferson took the view that
it would require congressional authori-
zation for this squadron to assume an
offensive, rather than a defensive, stance.
In May 1845 President Polk ordered
military forces to the coasts of Mexico
and to the western frontier of Texas-
still at that time an independent repub-
lic-in order to prevent an interference
by Mexico with the proposed annexation
of Texas to the United States. Following
annexation, Polk ordered Gen. Zachary
Taylor to march from the Neuces River,
which Mexico claimed was the southern
border of Texas, to the Rio Grande
River, which Texas claimed was the
southern boundary of Texas. While so
engaged, Taylor's forces encountered
Mexican troops, and hostilities between
the two nations commenced on April 25,
1846. While Polk, 21/2 weeks later re-
quested a declaration of war from Con-
gress, there had been no prior authoriza-
tion for Taylor's march south of the
Neuces.
In 1854 President Pierce approved the
action of a naval officer who bombarded
Greytown, Nicaragua, in retaliation
against a revolutionary government that
refused to make reparation for damage
and violence to U.S. citizens.
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CONGRESSIONAL RECORD -SENATE July 20, 1973.
In April 1861 President Lincoln called following the collapse of the South Ko-
for 75,000 volunteers to suppress the re- rean army. Ultimately, the number of
bellion by the Southern States, and pro- troops engaged in the Korean conflict
claimed a blockade of the fnfederacy. reached, 250,000, and the conflict lasted
The Supreme Court in the prize cases, more than 3 years. President Truman's
2 Black 635-1863--.upheld the action action without congressional authoriza-
taken by President Lincoln prior to their tion precipitated the "Great Debate" in
later ratification by Congress in July, - Congress which raged from January to
1861, saying: April 1951.
If a war be made by invasion of a foreign
nation, the President is not only authorized
but bound to resist force by force. He does
not initiate the war, but is bocaid to accept
the challenge without waiting for any spe-
cial legislative authority. 2 Black at 668.
In 1900 President McKinley sent an
expedition of 5,000 U.S.troom as a com-
ponent of an international fbrce during
the Boxer Rebellion In China.While Con-
gress recognized the existence of the con-
flict by providing for combat pay, 31
Statute 903, it neither declared war nor
formally ratified the President's action.
A Federal court, however, reiterated the
early recognition of limited or unde-
clared war:
In the present case, at no time was there
any formal declaration of war b X the political
department of this Government against
either the Government of China or the "box-
er" element of that governemnt. A formal
declaration of war, however, is unnecessary
to constitute a condition of war. Hamilton
V. McClnughry, 136 F. 445, 449 (cir. Ct.D.
Kan. 1905).
Presidents Theodore Roosevelt, Taft,
and Wilson on more than c ie occasion
committed American troops abroad to
protect American interests. In November
1903, President Roosevelt ordered the
U.S. Navy to guard the Panama area
and prevent Colombian trots from be-
ing landed to suppress the Panamanian
insurrection against Colombia. In this
annual report to Congress in 1912, Presi-
dent Taft reported sending some 2,000
marines to Nicaragua-at the request of
the President of Nicaragua-and the use
of warships and troops in Culp.. He mere-
ly advised Congress of these actions with-
out requesting any, statutory authori-
zation.
President Wilson on two separate oc-
casions committed American Armed
Forces to hostile actions in Mexican ter-
ritory. In. April 1914, he directed a force
of sailors and marines to occupy the city
of Vera. Cruz during the revolution in
that country. The city was seized and
occupied for 7 months without congres-
sional authorization. In 1916 Wilson or-
dered General Pershing and more than
10,000 troops to pursue Pancho Villa into
Mexican territory following the latter's
raid on Columbus, N. Mex.
The most recent example of Presiden-
tial combat use of American Armed
Forces without congressional declaration
of war, prior to the Vietnam conflict, was.
President Truman's intervention in the
Korean conflict. Following-invasion of
South Korea by North Koreans on June
25, 1950, and a request for aid by the
U.N. security council, President Truman
ordered U.S. air and sea forces to give
South Korean troops cover and support.
He ordered the 7th Fleet to--guard For-
mosa. On June 30, the President an-
nounced that he had authorized the use
of U.S. ground forces in the Korean war
While President Truman relied upon
the U.N. Charter, as well as his power
as Commander in Chief, his fiction stands
as a precedent for presidential action
in committing U.S. armed forces to ex-
tensive ;hostilities without formal dec-
laration of war by Congress.
The U.N. Charter, as a result of its
ratification by the Senate, has the status
of a treaty, but it does not by virtue of
this fact override any provisions of the
Constitution. Though treaties made in
pursuance of the Constitution may un-
der the supremacy clause override spec-
ific constitutional limitations. Geofroy v.
Riggs, 133 U.S. 258; Reid v. Covert, 3111
U.S. 481. If a congressional declaration
of war 'would be required in other cir-
cumstances to commit U.S. forces to
hostilities similar in extent and nature
to those undertaken in Korea, the rati-
fication' of the U.N. Charter would not
obviate 'a like requirement in the case
of the Korean conflict. While the issue of
presidential power which was the sub-
ject of the.great debate in Congress was
never authoritatively resolved, it is clear
that Congress acquiesced in President
Truman's intervention in Korea. See
Rees, "The Limited War"-1964; Pusey,
"The Way We Go To War"-1969.
DEPLOYMENT OF U.s: TROOPS THROUGHOUT
THE WORLD
In February 1917, President Wilson
requested congressional authority to arm
American merchant vessels. When that
authority failed of passage in Congress
as a result of a filibuster or extended
debate, ! Wilson proceeded to arm them
without congressional authority, stating
that he' was relying on his authority as
Commander in Chief.
Near the close of the First World War,
President Wilson announced a decision
to send American troops to Siberia. The
troops so sent remained for over a year,
their withdrawal beginning in January
1920. There was no congressional au-
thorization of such disposition of troops,
and the United States had not declared
war on Russia.
In 1941, prior to Pearl Harbor, Presi-
dent Roosevelt utilized his power as Com-
mander in Chief to undertake a series of
actions short of war, designed to aid the
Allied f~' rtes in the Second World War.
On Aprl 9, 1941, he made an agreement
with the Danish Minister for the occu-
pation 01f Greenland by American forces.
In May 1941, Roosevelt issued a proc-
lamation declaring unlimited national
emergency, and he ordered American
naval craft to sink on sight foreign sub-
marines found in the defensive waters of
the United States.
In July 1941, the President announced
that U.$. Forces would occupy Iceland in
order to relieve British forces there, and
that the Navy would perform convoy
duty for supplies being sent to Great
Britain under lend-lease. In September
1941, Roosevelt stated that he had gi'.ren
orders to the U.S. Army and Navy to
strike first at any German or Italian ves-
sels of war in American "defensive wa-
ters;" the following month, he decided to
carry 20,000 British troops from Hall tax
to the Middle East in American trans-
ports.
President Truman's decision in 195:. to
sent four U.S. divisions to Europe in di:;-
charge of the Nation's NATO commit-
ment occasioned prolonged debate in
Congress over his powers to take such
action without congressional approval.
Congress ultimately acquiesed _ in the-
President's action without actually re-
solving the question, and all of President
Truman's successors have asserted and
exercised similar authority.
AUTHORITY TO CONDUCT... OR CARRY ON ARMED
CONFLICT ONCE IT HAS BEEN LAWFULLY IN-
STITUTED
It has never been doubted that the
President's power as Commander in Chief
authorizes him, and him alone, to con-
duct armed hostilities which have been
lawfully instituted. Chief Justice Chase,
concurring in ex parte Milligan, 4 Viail.
2, at 139, said:
Congress has the power not only to raise
and support and govern armies but to declare
war. It has, therefore, the power to pro-
vide by law for carrying on war. This power
necessarily extends to all legislation esser.tial
to the prosecution of war with vigor and suc-
cess, except such as interferes with the c 3m-
mand of the forces and conduct of cam-
paigns. That power and duty belong to the
President as Commander in Chief.
In the First World War,, it was neces-
sary to decide whether U.S. troops in
France would fight as a separate com-
mand under General Pershing, or
whether U.S. divisions should be incorpo-
rated in existing groups or armies com-
manded by French or British genex als.
President Wilson and his military ad-
visers decided that U.S. forces would
fight as a separate command.
In the Second World War, not only
similar military decisions on a global
scale were required, but also decisions
that partook as much of political strat-
egy as they did of military strategy.
Should the United States concentrate
its military and material resources on
either the Atlantic or Pacific front:; to
the exclusion of the other, or should it
pursue the war on both fronts simul-
taneously? Where should the reconquest
of allied territories in Europe and Africa
which had been captured by the Axis
powers begin? What should be the goal
of the Allied powers? Those who lived
through the Second World War will re-
call without difficulty, and without the
necessity of consulting works of hist)ry,
that this sort of decision was reached
by the allied commanders in chief, and
chief executive officers of the allied na-
tions, without--on the part of the Un.ted
States-any formal congressional parti-
cipation. The series of conferences at-
tended, by President Roosevelt araind
the world-at Quebec, Cairo, Casablanca,
Tehran, Yalta, and by President Truman
at Potsdam, ultimately established the
allied goals in fighting the Second World
War, including the demand for uncon-
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dftional surrender on the part of the
Axis nations.
Similar strategic and tactical decisions
were involved in the undeclared Korean
war under President Truman. Ques-
tions such as whether U.S. forces should
not merely defend South Korean terri-
tory, but pursue North Korean forces by
invading North Korea, and as to whether
American Air Force planes should pursue
North Korean and Chinese Communist
planes north of the Yalu River, separat-
ing Red China from North Korea, were
of course made by the President as Com-
mander in Chief without any formal con-
gressional participation.
It is clear that the President, under his
power as Commander in Chief, is au-
thorized to commit American forces in
such a way as to seriously risk hostilities,
and also to actually commit them to such
hostilities, without prior congressional
approval. However, if the contours of the
divided war power contemplated by the
framers of the Constitution are to, re-
main, constitutional practice must in-
clude presidential resort to Congress in
order to obtain its sanction for the con-
duct of hostilities which reach a certain
scale. Constitutional practice also indi-
cates, however, that congressional sanc-
tion need not be in the form of a declara-
tion of war.
In the case of the Mexican War, which
was brought about, if not initiated, by
President Polk, he requested and ob-
tained a declaration of war. Congress,
meeting in 1861 pursuant to the call of
President Lincoln, ratified all of the ac-
tions he had taken on his own initiative,
and apparently refrained from declaring
war on the Confederate States only be-
cause it did not wish to recognize them as
a sovereign nation.
However, the Fifth Congress author-
ized President Adams to take certain
military action against France without
going so far as to declare war. More re-
cently, in connection with President Eis-
enhower's landing of troops in Lebanon
and with the Cuban missile crisis in 1962,
Congress has given advance authoriza-
tion for military action by the President
without declaring war-71 Stat. 5 76
Stat. 697.
The notion that such advance author-
ization by Congress for military opera-
tions constitutes some sort of an invalid
delegation of congressional war power
simply will not stand analysis. A decla-
ration of war by Congress, is, in effect,
a blank check to the Executive to conduct
military operations to bring about sub-
jugation of the nation against whom
war has been declared. The idea that
while Congress may do this, it may not
delegate a lesser amount of authority to
conduct military operations, as was done
in the instances referred to above, is
utterly illogical and unsupported by
precedent. While cases such as
Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935), hold that
Congress in delegating powers to deal
with. domestic affairs must establish
standards for administrative guidance,
no such principle obtains in the field of
foreign affairs. The Supreme Court in
United States v. Curtiss-Wright Corp.,
299 U.S. 304, made this distinction clear.
What must be regarded as the high-
water mark of Executive action without
express congressional approval is, of
course, the Korean war. Although Con-
gress never expressly sanctioned the
President's action in committing U.S.
forces by the hundreds of thousands to
the Korean conflict, it repeatedly voted
authorizations and appropriations to
arm and equip the American troops.
This is not to say that such appropria-
tions are invariably the equivalent of
express congressional approval; the de-
cision as to whether limited hostilities,
commenced by the Executive, should be
sanctioned by Congress may be one quite
different from the decision as to whether
American troops already "committed and
engaged in such hostilities shall be
equipped and supplied.
CONGRESSIONAL POWER TO RESTRICT THE
PRESIDENT
While the President may commit
Armed Forces of the United States to
hostile conflict without congressional
authorization under his constitutional
power as Commander in Chief, his au-
thority exercised in conformity with
congressional authorization or ratifica-
tion of his acts is obviously broader than
if it stood alone. By the same token,
Congress undoubtedly has the power in
certain situations to restrict the Presi-
dent's power as Commander in Chief to
a narrower scope than it would have had
in the absence of legislation. Chief Jus-
tice Marshall strongly intimates in his
opinion in Little v. Barreme, 2 Cranch.
1970 (1804), that the Executive action
directing the seizure of a ship on the
high seas would have been valid had not
Congress enacted legislation restricting
the circumstances under which such a
seizure was authorized. Congress, exer-
cising its constitutional authority to
"make rules concerning captures on land
and water" may thus constrict the Pres-
ident's power to direct the manner of
proceeding with such captures.
Congress has similarly sought to re-
strain the authority of the President in
the exercise of its power to "raise and
support armies." In the Selective Serv-
ice and Training Act of 1940, it was pro-
vided that:
Persons inducted into the land forces of
the United States under this act shall not be
employed beyond the limits of the Western
Hemisphere except in the territories and pos-
sessions of the United States, including the
Philippine Islands. b4 Stat. 885.
In the year following enactment of
this law, President Roosevelt determined
to send U.S. troops, including draftees, to
Iceland in order to relieve British troops
garrisoned there. He chose to strain
geography, rather than the law and ob-
tained the opinion of what was apparent-
ly a minority-view geographer that Ice-
land was actually in the Western Hemis-
phere.
On December 15, 1969, Congress adopt-
ed an amendment to the Defense Appro-
priations bill H.R. 15090 providing that
U.S. Forces shall not be dispatched to
Laos or Thailand in connection with the
Vietnam conflict. It supported this pro-
vision offered by the Senator from Idaho
as a reasonable exercise of congressional
authority.
S 14223
This Is not to say, however, that every
conceivable condition or restriction which
Congress may by legislation seek to im-
pose on the use of American military
forces would be free of constitutional
doubt. Even in the area of domestic af-
fairs where the relationship between
Congress and the President is balanced
differently than it is in the field of exter-
nal affairs, virtually every President since
Woodrow Wilson has had occasion to
object to certain conditions in authoriza-
tion legislation as being violative of the
separation of powers between,the execu-
tive and the legislative. branch. The prob-
lem would be compounded should Con-
gress attempt by detailed instructions as
to the use of American forces already in
the field to supersede the President as
Commander in Chief of the Armed
Forces. Surely this is the thrust of Chief
Justice Chase's concurring opinion in ex
parte Milligan, quoted earlier.
[Congressional Power] necessarily extends
to all legislation essential to the prosecution
of war with vigor and success, except such
as interferes with the command of the forces
and conduct of campaigns. That power and
duty belong to the President as Commander
in Chief. 4 Wall. at 139.
THE VIETNAM CONFLICT
The duration of the Vietnam conflict
and its requirements in terms of both
men and materiel would have raised the
most serious sort of constitutional ques-
tion, had there been no congressional
sanction of that conflict. However, as is
well known, the conflict formally began
following an attack on U.S. naval forces
in the Gulf of Tonkin in August 1964. At
that time, President Johnson took direct
air action against the North Vietnamese,
and he also requested Congress "to join
in affirming the national determination
that all such attacks will be met" and
asked for "a resolution expressing that
support of the Congress for all necessary
action to protect our Armed Forces and
to assist Nations covered by the SEATO
treaty."
On August 10, 1964, Congress passed
the so-called Gulf of Tonkin resolution.
In connection with this resolution, Con-
gress noted that whatever the limits of
the President's authority acting alone
might be, whenever Congress and the
President act together, "there can be no
doubt" of the constitutional authority.
Since that time, Congress repeatedly
adopted legislation recognizing the situ-
ation in Southeast Asia, providing the
funds to carry out U.S. commitments
there, and providing special benefits for
troops stationed there. By virtue of these
acts, and the Gulf of Tonkin resolution,
there was longstanding congressional
recognition of a continuing U.S. com-
mitment in Southeast Asia. This recog-
nition and ratification of the President's
policies continued even after the Ton-
kin Gulf resolution was repealed in
1970.
While seeking a negotiated peace and
furthering "Vietnamization," President
Nixon continued to maintain U.S. troops
in the field in South Vietnam. The legal-
ity of the maintenance of these troops
in South Vietnam, and their use to
render assistance to the South Vietnam-
ese troops in repelling aggression from
the Vietcong and the North Vietnam-
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ese, would have been subject to doubt
only if congressional sanction of hostili-
ties commenced on the initiative of the
President could be manifested solely by
a formal declaration of war. But the
numerous historfeal precedents previ-
ously cited militate against such reason-
ing.
A requirement that congressional ap-
proval of Presidential action in this field
can come only through a declaration of
war is not only contrary to historic con-
stitutional usage, but as a practical mat-
ter would curtail effective congressional
participation in the exercise of the
shared war power. If Congress may
sanction armed engagement of U.B.
forces only by declaring war, the possi-
bility of its retaining a larger degree of
control through a more limited approval
is foreclosed. While in terms of men and
materiel the Vietnam conflict was one
of large scale, the objectives for which
the conflict was carried on were by no
means as extensive or all-inclusive as
would have resulted from a declaration
of war by Congress.
Conversely, however, there was not
the slightest doubt from an examination
of the language of the Gulf of Tonkin
resolution that Congress expressly au-
thorized extensive military involvement
by the United States. To reason that if
the caption "Declaration of War" had
appeared at the top of the resolution,
that involvement would have been per-
missible, but that the identical language
without such a caption did not give
effective congressional sanction, would
be to treat this most nebulous and ill-
defined of all areas of the law as if it
were a problem in common law pleading.
Mr. Justice Grier, more than a century
ago, in the prize cases said;
This greatest of civil ware was not grad-
ually developed by popular commotion,
tumultuous assemblies or local unorganized
insurrections. However long may have been
its previous conception, it nevertheless
sprung forth suddenly from the parent brain,
a Minerva in the full panoply of war. The
President was bound to meet it in the shape
it presented itself, without waiting for Con-
gress to baptise it with a name; and no name
given to it by him or them could change the
fact.
If substance prevailed over form in
establishing the right of the Federal
Government to fight the Civil War in
1861, substance should equally prevail
over form in recognizing congressional
sanction for the Vietnam conflict by the
Gulf of Tonkin resolution, even though
it was not in name or by its terms a
formal declaration of war.
SEPARATE AND SHARED AUTHORITY
Mr. President, I believe the foregoing
discussion indicates that a significant
body of practice, precedent and tradi-
tion has grown up surrounding the war
powers of this country. It shows that the
President is charged with real responsi-
bilities in major areas where he and he
alone must make decisions and choices.
It also shows that the Congress, too, has
a proper, legitimate role to play with its
own unique and separate authority.
There are some clear lines of demarca-
tion and firm divisions of authority.
Of course, the Congress cannot and
should not become involved in the tactics
and strategy required to carry out na-
tional defense policy. And at the same
time the President cannot and should not
seek to determine that national defense
policy solely on his own initiative.
But between these firm and clear areas
there is room and a real need for shared
decisfsonmaking and joint leadership. And
in My view the War Powers Act before
the Senate today is a responsible and
necessary attempt to serve the national
interest by harmonizing the roles of the
legislative and executive branches in the
exercise of the war power.
PREVIOUS SUPPORT FOR WAR POWERS ACC
When this measure was first intro-
duced in the 91st Congress in 1970. I
joined in sponsoring it. At that time I
felt it was a proper and useful attempt
by Congress to cast some light in a
murky and misunderstood constitutional
area. It was reintroduced in the 92d Con-
gress1 in 1971; however, at that time, we
were', in the midst of the Vietnamization
program, efforts were continuing to reach
a negotiated settlement to the Vietnam
conflict, and we were still unable to se-
cure !information about or the return of
our prisoners of war and missing in ac-
tion.
`CONCERN FOR MISCONSTRUCTION OF
CONGRESSIONAL ACTION
At; that time I felt a genuine concern
that an entirely appropriate and useful
exercise of the Congress powers in at-
tempting to define the lines of consti-
tutional authority might be misconstrued
by the opposite side at the Paris negoti-
ations, and thus endanger the prospects
for achieving a negotiated peace and the
earliest possible end to the conflict in
Southeast Asia. Therefore, I did not re-
join my colleagues in sponsoring this
legisl~tion at that time.
Happily, the Vietnam war is now be-
hind us. American forces have been with-
drawn. Our prisoners are home. The
Paris agreements establish our rights to
information on the missing. And there
is a real prospect that the Vietnamese
parts s will be able to arrive at a peaceful
deter 'nation of their future course. On
August 15, barring further congressional
authorization, the bombing in Cambodia
will stop.
CONCLUSION
This is a unique moment in our his-
tory, and it is an appropriate interval
for Congress to assert its authority in a
proper, constructive, and worthwhile
manner.
The War Powers Act will establish a
part ership between the Congress and
the Presidency in exercising the awe-
some; responsibility of employing this
Nation's military might. It should serve
to stimulate broader communication be-
tween the legislative and executive
branches. And in so doing it will serve
as a strong unifying influence in a nation
which in recent years has too frequently
been strained by forces of division, dis-
cord, 'and mistrust between the branches
of Government, between groups and
among individuals.
I an pleased to support this legisla-
tion and believe its passage will mark a
proud and hopeful day in the constitu-
tional history of the United States.
SOUTHEAST ASIA R$$OLUTION 1
Whereas naval units of the Communist re-
gime in Vietnam, in violation of the princi-
ples of the Charter of the United Naticns and
of international law, have deliberately and
repeatedly attacked United States naval ves-
sels lawfully present in international seaters,
and have thereby created a serious threat to
international peace; and
Whereas these attacks are part of a d eliber-
ate and systematic campaign of aggression
that the Communist regime in North Viet-
nam has been waging against its neighbors
and the nations joined with them in the cal-
lective defense of their freedom; and
Whereas the United States is assisting the
peoples of southeast Asia to protect; their
freedom and has no territorial, military or
political ambitions in that area, but desires
only that these peoples should be eft in
peace to work out their own destinies is their
own way: Now, therefore, be it
Resolved by the Senate and House c f Rep..
resentatives of the United States of America
in Congress assembled, That the Congress
approves and supports the.determinal,ion of
the President, as Commander in Chief, to
take all necessary measures to repetl any
armed attack against the forces of the United
States and to prevent further aggression.
SEC. 2. The United States regards as vital
to its national interest and to world peace
the maintenance'of"international pease and
security in southeast Asia; Consoonanl with
the Constitution of the United Stabis and
the Charter of the United Nations and in
accordance with its obligations under the
Southeast Asia Collective Defense Treaty, the
United States is, therefore prepared, as the
President determines, to take all necessary
steps, including the use of armed force, to
assist any member or protocol state of the
Southeast Asia Collective Defense Trelr,ty re-
questing assistance in defense of its freedom
SEC. 3. This resolution shall expire when
the President shall determine that the peace
and security of the area is reasonatly as-
sured by international conditions created by
action of the United Nations or otherwise,
except that it may be terminated earl ter by
concurrent resolution of the Congress,
SENATOR RANDOLPH RECALLS MISLEADING STATE-
MENTS DURING DEBATE ON WAR POWEI.S BILL
IN 1942
Mr. RANDOLPH. Mr. President--
Our people want authentic information.
They know not what to believe.
These words are certainly relevant
in the context of today's discussion of
S. 440 and in light of the fact that ad-
ministration officials in 1971 and 1973
falsified reports to the Senate ..rmed
Services Committee of bombing opera-
tions in Cambodia.
I initially made that statement on
February 28, 1942, in the House of Rep-
resentatives during debate on House Joint
Resolution 89 of the 76th Congress This
measure, sponsored by Represenl;ative
Ludlow and Senator Capper, gave Con-
gress the initial decisionmaking to take
the power of declaring war "to the peo-
ple of the United States," except in a
case of an invasion of our country or ter-
ritorial possessions by a military expedi-
tion.
I cosponsored this war referendum
bill in 1939 and 84 years later r urge
passage of S. 440, the War Powers Act of
1973. I quote Senator JAVITS:
1 Text of Public Law 88-408 ,[H.J Its.
11451, 78 Stat. 384, approved Aug. 10, 1984.
Department of State Bulletin, Aug. 24,
1964, pp. 272-274.
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'And when the President's authority is
so defined, as it will be if the War Powers
Act becomes law, then the issue of authority
is determined in an authoritative way, and,
I have little doubt, will be carried out to
the best of his ability in good faith by any
American President.
I strongly . support this historic and
necessary legislation. Mr. President, I
ask unanimous consent that my remarks
and colloquy with other members, on
the War Powers Act of 1942, be printed
in the RECORD.
There being no objection, the excerpt
from the CONGRESSIONAL RECORD was or-
dered to be printed in the RECORD as fol-
lows:
Mr. Chairman, I rise at this time during
debate on the pending war-powers bill not
because what I shall say particularizes on
any point which we are now discussing, but
because I desire to call attention to what I
believe is a very unfortunate and unnecessary
situation.
There are far too many announcements be-
ing made by our Departments of War and
Navy to the American people and to the world
which are contradictory and give rise to un-
easiness among our citizens and encourage
our enemies. I recognize full well that carp-
ing criticism of the war effort is undesirable.
I would never add my voice to such proce-
dure. In my opinion, however, when a Mem-
ber of this Congress has a deep feeling re-
garding our war effort and believes that out
of honest discussion there can come truth
and light, that Member must never hesitate
to make his views known. Thought-provoking
criticism, based on a genuine conviction,
must be welcomed in this House, rather than
discouraged.
I direct your attention to the fact that 3
day= ago the Secretary of the Navy announced
that the reported attack on the west coast
was false and that there were no enemy air-
craft approaching from the ocean over Cali-
fornia. Less than 24 hours later the Secretary
of War made an announcement that the
alarm was real. Within a few hours we have
the Secretary of the Navy saying the reported
raid was false and the Secretary of War say-
ing the supposed attack was real. What are
we to believe? It is inconceivable that we con-
tinue to have such stories circulated from of-
ficial sources.
If we are to have clear thinking on tae
part of the American people in regard in the
prosecution of this war, it must stem from
the military authorities themselves. How we
can expect other than confusion among the
patriotic citizens of the United States when
such opposing announcements as this are
made is beyond my honest comprehension.
There are these of us who have advocated
for many, many years that we should haveJn
this country one supreme command and un-
der that command separate authorities for
the Army, the Navy, and the Air Force. How-
ever, we have been denied even the oppor-
tunity to have such legislation heard before
the committees of this Congress. I do not
wish to discuss that question this afternoon.
I have taken time to direct attention of the
Congress on previous occasions to failure of
our committees- to hear discussed in an in-
formative and straight-forward manner such
proposals which have been made by the Mem-
bers of this body.
Mr. REED of New York. Mr. Chairman, will
the gentleman yield?
Mr. RANDOLPH. I yield to - the gentleman
from New York.
Mr. REED of New York. I do not know what
the experience of the gentleman or of my
colleagues has been, but I am receiving let-
ters wanting to know if this statement or
that statement made by different officials is
true, and I am not In a position to tell these
people what the truth is.
Mr. RANDOLPH. Of course not. Our people
want authentic information. They know not
what to believe. For the Secretary of the Navy
to say one day that the trouble on the west
coast was false and for the Secretary of War
to say the next day that it was real is ab-
solutely indefensible.
Mr. Vooasrs of California. Mr. Chairman,
will the gentleman yield?
Mr. RANDOLPH. I yield to the gentleman
from California.
Mr. VOORHIS of California. What concerns
me about this matter is the people of our
section.
. Mr. RANDOLPH. Certainly, they are in the
dark.
Mr. VOORHIS of California. They were pretty
fine throughout this whole business. All in
the world they want is a simple statement
upon which they feel they can absolutely
rely. I am confident they are going to get
that, and I think it is very important that
they do get it.
Mr. RANDOLPH. I thank the gentleman, and
I join in the hope that a common ground on
which we can stand can be soon found. The
American people, if told the actual happen-
ings, will always respond to the truth. They
are not children. They are sober and under-
standing men and women.
Mr. HINSHAW. Mr. Chairman, will the gen-
tleman yield?
Mr. RANDOLPH. I yield to the gentleman
from California.
Mr. HINSHAW. In connection with the
statement by the Secretary of War, may I-
say that I was told on the following day by
three different sources In the War Depart-
ment, not by the Secretary, that they did not
believe it was necessarily enemy planes that
came over the Los Angeles area. Then the
Secretary of War came out and refuted the
statements made by representatives of his
own. Department.
Mr. RANDOLPH. I am sorry these divergent
and misleading statements have been made.
If they were rumors I would not discuss
them, but I have checked and have found
that they were given to the press by the Sec-
retary of the Navy and the Secretary of War.
I call on our Commander in Chief to stop
this unwarranted situation.
Mr. PELL. Mr. President, the power of
.waging war is the power of life and death
over every man, woman and child in
this country. It is a power, therefore,
that the U.S. Government can only ex-
ercise with the greatest solemnity and
care. It is for this reason that the fram-
ers of the Constitution desired to insure
that the collective judgment of both the
Congress and the President should be
brought to bear in decisions to engage
U.S. forces in hostilities or situations
leading to them, Any use of force by one
country against another is war, regard-
less of its size, or whether it is declared
or undeclared. And in an age of nuclear
weapons, the smallest war can escalate.
to nuclear annihilation:
In recent decades, this collective judg-
ment called for by the Constitution has
been increasingly imbalanced, with the
Presidential input far outweighing the
congressional. This disequilibrium has
frustrated the intent of the drafters of
the Constitution and embroiled the Na-
tion in the longest, most devisive and
agonizing war in our history.
At an earlier stage, a statutory remedy
might have been unnecessary, but we
have passed that stage. Congressional
action is now overdue. I have long ad-
vocated such action in past legislation.
I have decried congressional failure to
take this action. Therefore, I now urge,
more vigorously than ever, that this ac-
tion be promptly taken by the passage
of S. 440.
Failure by the Congress to exert its
constitutional authority in the exercise
of national war powers would be a fail-
ure to learn from the bitter experiences
of the Indochina war. History may or
may not show that the stand we took to
resist North Vietnamese aggression in
Indochina was the right one. But already
it is abundantly clear that the way we
choose to make that stand was a trag-
ically mistaken one.
It was a mistake shared by both Re-
publican and Democratic administra-
tions. The - source of the mistake is di-
rectly attributable to an absence of con-
gressional input into the military policies
that guided-or rather misguided our
war effort in Indochina. The result was
that we slipped into a protracted, costly
war through the back door-a door
opened up not. by the people of the
United States, not by their elected repre-
sentatives in the Congress, but a door
opened up primarily by the Pentagon.
If from the beginning of our military
involvement, the Congress had exercised
its constitutional war powers, our inter-
vention could well have been of quite a
different nature and results. . There
would have been congressional debate
and public discussion of the necessity for
intervention, so that if approved, the
country would have had a clearer under-
standing of its. purpose and objectives.
But such was not the case.
If there had been a better under-
standing of the nature of the war, where
the political factors outweighed the
military ones, there would not have been
the inappropriate massive military inter-
vention pushed by the -Pentagon.
If there had not been a massive de-
ployment of forces using unsuitable
sophisticated weapons and requiring an
unwieldy infrastructure of bases and
support facilities, our military presence
would have had the mobility and nimble-
ness needed to complete its mission.
But the voice of Congress against the
creation of a monstrous, lumbering,
hamstrung war machine in Indochina
could not be heard above the drumbeats
of the Pentagon-a machine that dev-
astated the countryside, that killed,
maimed and alienated the people it
should have protected and at the same
time was incapable of dealing with an
enemy as fluid as quicksilver.
How tragic that such a voice was not
heard. How many lives could have been -
saved, military and civilian. How much
destruction could have been spared, how
much divisiveness at home and abroad
could have been avoided. How much
quicker and more successfully might we
have obtained our objectives. If, how-
ever, Vietnam taught us one thing-the
categorical imperative for the voice of
Congress in the process of deciding on
and applying American military force,
regardless of place, size or nature, then
the sacrifices of Vietnam will not have
been entirely in vain.
Mr. MUSKIE. Mr. President, I ask for
the yeas and nays on the passage of the
bill.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I yield
back all my remaining time.
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uf!y .20, 1973
Mr. GRIFFIN. I yield back the re-
mainder of my time.
The PRESIDING OFFICER. All re-
maining time has been yielded back. The
bill having been read the third time, the
question is, Shall it pass? The yeas and
nays have been ordered, and the clerk
will call the roll.
The assistant legislative clerk called
the roll.
Mr. ROBERT C. BYRD. I announce
that the Senator from Arkansas (Mr.
MCCLELLAN), the Senator from South
Dakota (Mr. McGovERN) are necessarily
absent.
I also announce that the Senator from
Mississippi (Mr. STENNIS) Is absent be-
cause of illness.
I further announce that, if present and
voting, the Senator from Mississippi (Mr.
STENNIS), and the Senator from South
Dakota (Mr. MCGOVERN) would each
vote "yea."
Mr. GRIFFIN. I announce that the
Senator from New Hampshire (Mr.
COTTON) and the Senator from Arizona
(Mr. GOLDWATER) are absent because of
illness in their respective families.
The Senator from Alaska (Mr. STE-
VENS) is absent by leave of the Senate on
account of illness in his family.
The Senator from New York (Mr.
BUCKLEY), the Senator from Colorado
(Mr. DOMINICK), and the Senator from
Illinois (Mr. PERCY) are necessarily ab-
sent.
The Senator from Virginia (Mr.
SCOTT) is absent on official business.
On this vote, the Senator from Illinois
(Mr. PERCY) is paired with the Senator
from Colorado (Mr. DOMINICK). If pres-
ent and voting, the Senator from Illinois
would vote "yea" and the Senator from
Colorado would vote "nay."
The result was announced-yeas 72,
nays 18, as follows:
(No. 312 Leg.j
YEAS-72
Aiken Hart Nelson
Allen Hartke Nunn
Bayh Haskell Packwood
Beall Hatfield Pastore
Bentsen Hathaway Pearson
Bible Hollings Pell
Biden Huddleston Proxmire
Brock Hughes Randolph
Brooke Humphrey Ribicoff
Burdick Inouye Both
Byrd, Jackson Saxbe
Harry F., Jr. Javits Schweiker
Byrd, Robert C. Johnston Scott, Pa.
Cannon Kennedy Sparkman
Case Long Stafford
Chiles Magnuson Stevenson
Church Mansfield Symington
Clark Mathias Taft
Cook McGee Talmadge
Cranston McIntyre Tunney
Dole Metcalf Weicker
Domenici Mondale Williams
Eag] eton Montoya Young
Fong Moss
Fulbright Muskle
NAYS-18
Abourezk . Eastland Hansen
Baker Ervin Helms
Bartlett Fannin Eruska
Bellmon Gravel McClure
Bennett Griffin Thurmond
Curtis Gurney Tower
NOT VOTING--10
Buckley McClellan Stennis
Cotton McGovern Stevens
Dominick Percy
Goldwater Scott, Va.
So !the bill (S. 440) was passed, as
An act to make rules governing the use of
the Armed Forces of the United States in
the absence of a declaration of war by the
Congress
Be t enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled,
SHORT TITLE
SECTION 1. This Act may be cited as the
"War Powers Act".
PURPOSE AND POLICY
SEc.,2. It is the purpose of this Act to ful-
fill the intent of the framers of the Cion-
stitutiin of the United States and insure
that the collective judgment of both the
Congress and the President will apply to the
introduction of the Armed Forces of the
United States in hostilities, or in situations
where mminent involvement in hostilities is
clearly- Indicated by the circumstances, and
to the continued use of such forces in hos-
tilities or in such situations after they have
peen Introduced in hostilities or in such
situations. Under article I, section 8, of the
Constitution, it is specifically provided that
the Congress shall have the power to make
all laws necessary and proper for carrying
into execution, not only its own powers but
also all other powers vested by this Constitu-
tion in the Government of the United States,
or in any department or officer thereof. At
the same time, this Act is not intended to
encroach upon the recognized powers of the
President, as Commander In Chief and Chief
Executive, to conduct hostilities authorized
by the Congress, to respond to attacks or the
imminent threat of attacks upon the United
States,T.. including is territories and posses-
sions, to repel attacks or forestall the im-
minent threat of attacks against the Armed
Forces of the United States, and, under prop-
er circumstances, to rescue endangered cit-
izens and nationals of the United States
located in foreign countries.
EMERGENCY USE OF THE ARMED FORCES
SEC. 3. In the absence of a declaration of
war by the Congress, the Armed Forces of
the United States may be introduced in
hostilities, or in situations where Imminent
involvement in hostilities is clearly indi-
cated by the circumstances only-
(1) to repel an armed attack upon the
United! States, its territories and possessions;
to take necessary and appropriate retalitory
actions in the event of such an attack: and
to forestall the direct and imminent threat
of such; an attack;
(2) 1{o repel an armed attack against the
Armed Forces of the United States located
outside of the United States, its territories
and possessions, and to forestall the direct
and imminent threat of such an attack;
(3) to protect while evacuating citizens
and nationals of the United States, as rap-
idly as!possible, from (A) any situation on
the high seas involving a direct and immi-
nent threat to the lives of such citizens and
nationals, or (B) any country in which such
citizens and nationals are present` with the
express' or tacit consent of the government
of such! country and are being subjected to a
direct and imminent threat to their lives,
either sponsored by such government or
beyond! the power of such government to
control; but the President shall make every
effort to terminate such a threat without
using the Armed Forces of the United States
and shall, where possible, obtain the consent
of the !government of such country before
using the Armed Forces of the United States
to protect citizens and nationals of the
United States being evacuated from such
country; or
(4) phirstlant to specific statutory author-
ization,; but authority to introduce the
Armed Forces of the United-States in hnstDI-
ties or in any such situation shall not ae in-
ferred (A) from any provision of law here-
after enacted, including any provision con-
tained in any appropriation Act, unless such
provision specifically authorizes the intro-
duction of such Armed Forces in hostilities
or in such situation and specifically exempts
the introduction of such Armed Forces
from compliance with the provisions of this
Act, or (B) from any treaty hereafter rati-
fied unless such treaty is implemented by
legislation specifically authorizing the ;.ntro-
duction of the Armed Forces of the United
States in hostilities or in such situation and
specifically exempting the introduction of
such Armed Forces from compliance with the
provisions of this Act. For purposes of this
clause (4), "introduction of the Armed Forces
of the United States" include the assignment
of members of the Armed Forces of the Unit-
ed States to command, coordinate, participate
in the movement of, or accompany the reg-
ular or irregular military farces of any for-
eign country or government when such mili-
tary forces are engaged, of there exists an
imminent threat that such forces will be-
come engaged, in hostilities. No treaty in
force at the time of the enactment o:' this
Act shall be construed as specific statutory
authorization for, or a specific exemption
permitting, the introduction of the Armed
Forces of the United States in hostilities or
in any such situation, within the meaning of
this clause (4); and no provision of law in
force at the time of the enactment oi' this
Act shall be so construed unless such provi-
sion specifically authorizes the introduction
of such Awned Forces in hostilities or in
any such situation. -
REPORTS '
SEC. 4. The introduction of the Armed -
Forces of the United Statesin hostilities, or
in any situation where-imminent involvement
in hostilities is clearly indicated by the cir-
cumstances, under any of the conditiors de-
scribed in section 3 of this Act shall be re-
ported promptly in writing 'by the President
to the Speaker of the House of Representa-
tives and the -President of the Senate, to-
gether with a full account of the circum-
stances under which such Armed Forces were
introduced in such-hostilities-or in such situ-
ation, the estimated scope of such hostilities
or situation, and the consistency of the intro-
duction of such forces in such hostilities or
situation with the provisioie of section 3 of
this Act. Whenever Armed Forces of the
United States are engaged in hostilities or In
any such situation outside of the United
States, its territories and possessions, the
President shall, so long as such Armed Farces
continue to be engaged in such hostilities or
in such situation, report to the Congress peri-
odically on the status of such hostilities or
situation as well as the scope and expected
dt,ation of such hostilities as situation, but
in no event shall he report to the Congress
less often than every six months.
THIRTY-DAY AUTHORIZATION PERIOD
SEC. 5. The use of the Armed Forces o:C the
United States In hostilities, or in any situa-
tion where imminent involvement in hostili-
ties is clearly indicated by the circumstances, _
under any of the conditions described in
section 3 of this Act shall not be sustained
beyond thirty days from thedate of th,e in-
troduction of such Armed Forces In hostities
or in any such situation unless (1) the Presi-
dent determines and certifies-to the Congress
in writing that unavoidable rilitary necessity
respecting the safety of Armed Forces oi' the
United States engaged pursuant to section
3(1 ' l or 3(2) of this Act requires the con-
tinued use of such Armed Farces in the
course of bringing about a prompt disen-
gagement from such hostilities; or (2) Con-
gress is physically unable to meet as a result
of an armed attack upon the United States;
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or (3) the continued use of such Armed
Forces in such hostilities or in such situa-
tion has been authorized in specific legisla-
tion enacted for that purpose by the Con-
gress and pursuant to the provisions thereof.
TERMINATION WITHIN THIRTY-DAY PERIOD
SEC. 6. The use of the Armed Forces of the
United States in hostilities, or in any situa-
tion where imminent involvement in hostil-
ities is clearly indicated by the circum-
stances, under any of the conditions de-
scribed in section 3 of this Act may be ter-
minated prior to the thirty-day period spe-
cified in section 5 of this Act by an Act or
joint resolution of Congress, except in a case
where the President has determined and cer-
tified to the Congress in writing that un-
avoidable military necessity respecting the
safety of Armed Forces of the United States
engaged pursuant to section 3(1) or 3(2) of
this Act requires the continued use of such
Armed Forces in the course of bringing about
a,prompt disengagement from such hostili-
ties.
CONGRESSIONAL PRIORITY PROVISIONS
SEC. 7. (a) Any bill or joint resolution au-
thorizing a continuation of the use of the
Armed Forces of the United States in hostili-
ties, or in any situation where imminent in-
volvement in hostilities is clearly indicated
by the circumstances, under any of the con-
ditions described in section 3 of this Act, or
any bill or joint resolution terminating the
use of Armed Forces of the United States in
hostilities, as provided in section 6 of this
Act, shall, if sponsored or cosponsored by one-
third of the Members of the House of Con-
gress in which it is introduced, be consid-
ered reported to the floor of such House no
later than one day following its Introduction
unless the Members of such House otherwise
determine by yeas and nays. Any such bill or
joint resolution, after having been passed by
the House of Congress in which it originated,
shall be considered reported to the floor of
the other House of Congress within one day
after it has been passed by the House in
which it originated and sent to the other
House, unless the Members of the other House
shall otherwise determine by yeas and nays.
(b) Any bill or joint resolution reported
to the floor pursuant to subsection (a) or
when placed directly on the calendar shall
immediately, become the pending business of
the House in which such bill or joint reso-
lution is reported or placed directly'on the
calendar, and shall be voted upon within
three days after it has been reported or placed
directly on the calendar, as the case may be,
unless such House shall otherwise determine
by yeas and nays.
SEPARABILITY CLAUSE
SEC. 8. If any provision of this Act or the
application thereof to any person or circum-
stance is held invalid, the remainder of the
Act and the application of such provision
to any other person or circumstance shall
not be affected thereby.
EFFECTIVE DATE AND APPLICABILITY
SEC. 9. This Act shall take effect on the
date of its enactment. Nothing in section
3(4) of this Act shall be construed to re-
quire any further specific statutory authori-
zation to permit members of the Armed
Forces of the United States to participate
jointly with members of the armed forces of
one or more foreign countries in the head-
quarters operations of high-level military
commands which were established prior to
the date of enactment of this Act and pur-
suant to the United Nations Charter or any
treaty ratified by the United States prior to
such date.
Mr. JAVITS. Mr. President, I move to
reconsider the vote by which the bill was
passed.
Mr. MUSKIE. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
Mr. MUSKIE. Mr. President, I ask
unanimous consent that the Senate pro-
ceed to the consideration of Calendar No.
320, House Joint Resolution 542.
The PRESIDING OFFICER. Without
objection, it is so ordered.
The Senate proceeded to consider the
joint resolution (H.J. Res. 542) concern-
ing the war powers of Congress and the
President.
Mr. MUSKIE. Mr. President, I move to
strike all after the resolving clause of
House Joint Resolution 542 and substi-
tute therefor the text of S. 440, as
amended and passed today.
The PRESIDING OFFICER. The ques-
tion is on agreeing to the motion of the
Senator from Maine.
The motion was agreed to.
The PRESIDING OFFICER. The ques-
tion is on the engrossment of the amend-
ment and the third reading of the joint
resolution.
The amendment was ordered to be en-
grossed and the joint resolution to be
read a third time.
The joint resolution (H.J. Res. 542)
was read a third time and passed.
Mr. JAVITS. Mr. President, I move to
reconsider the vote by which the joint
resolution was passed.
Mr. MUSKIE. I move to lay that mo-
tion on the table.
The motion to lay on the table was
agreed to.
Mr. MUSKIE. Mr. President, I should
like to take a moment to congratulate
the distinguished Senator from New York
(Mr. JAVITS) for one of the most master-
ful pieces of legislative craftsmanship
that it has been my pleasure and my
privilege to be associated with. He has
done an outstanding job in the service
of the Senate and the country, and I con-
gratulate him.
Mr. JAVITS. Mr. President, If the Sen-
ator will yield, I greatly appreciate the
job Senator MUSKIE undertook, It re-
quired him to absorb literally months of
work and study, which I have done and
others have done, including some very
complicated legal questions and consti-
tional questions. He simply astounded
me with the skill and grasp he showed
in connection with this bill. I am very
grateful to him. The Senate has every
reason to be grateful to him. He has
done the Foreign Relations Committee
proud.
Mr. MUSKIE. I thank the Senator.
Mr. JAVITS.' Mr. President, I wish to
express my appreciation to a number of
assistants of my own and of the Foreign
Relations Committee, who rendered ex-
traordinary help in respect to the bill.
I would like to thank Peter Lakeland
of my own staff, a former Foreign Serv-
ice officer and a very gifted foreign policy
assistant to me for some years, who did
a monumental job, which any profes-
sional would consider a life's work, in the
preparation for this debate, the drafting
of the committee report, and the re-
search, all of which went with it.
Then to Seth Tillman, who is one of
the assistants to Senator FULBRIGHT, who
had a big hand in drafting the commit-
tee report, which I thought was a mag-
niflcant document; and Mr. Tillman
worked under the direction of Carl
Marcy, the very honored and very much
respected chief of staff of our committee,
to whom I also wish to give every credit
for bringing the matter to the floor and
for the preparation on it.
THE USE OF RECORDING DEVICES
Mr. CURTIS. Mr. President, I wish to
speak concerning the use of recording de-
vices. This was brought to the attention
of the Nation during the past week by
the testimony given by a Senate com-
mittee concerning records made by the
White House in the last couple of years.
There may be arguments pro or con con-
cerning the wisdom of such recordings
but it is important that first we clear up
a few essential points.
It is lawful for an individual to wire-
tap his own telephone without notifying
the other person on the line and without
the use of a beeper. The statements
made about the records in the White
House revealed a practice which is not in
violation of present law. It was not un-
dertaken by the Nixon administration
under the old law.
The second point I would like to estab-
lish is that similar recordings have been
made in the White House under previous
administrations. It is not a new practice
at all. It has been widely used in the past
and I will have something to say about
that later. Much can be said in favor of
recording conferences, conversations, and
discussions. It makes for an accurate rec-
ord. It prevents error taking the place of
a history of the true facts. It avoids mis-
understanding. It makes it possible for a
followthrough after discussion in full
conformity with what was said.
I can recall a visit that I made to the
White House early in the Nixon adminis-
tration concerning rural development.
There were one or two staff members in
the room and they were very busy taking
notes of everything that President Nixon
or I said. I was delighted that they were
making such a record. That particular
discussion is reflected in the rural de-
velopment program that is now in opera-
tion. Important matters were talked
about and the fact that a record was
kept by the making of notes made it pos-
sible for the President's wishes to be car-
ried out. A record preserved by a record-
ing would have saved time and may have
been more accurate.
I wanted to satisfy myself as to the
practices by previous administrations
concerning the recording of conversa-
tions, conferences, and telephone calls. I
'had understood that the White House
had collected evidence on this in the
form of affidavits. I asked to see those
affidavits. I did see them and I read them.
One affidavit that I saw stated that the
individual in 1968 was ordered to install
a microphone in a small room located
between the Oval office of the President
and the office of Mr. Marvin Watson.
The room, I understand, was used as a
Presidential sitting room and used fre-
quently by President Johnson for private
meetings and the like.
The affidavit went on to say that a
listening device had been installed in the
south wall of the room at the baseboard
level. A tape recorder was installed in
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an office below this room gynd was man-
ually controlled from a switch located
under the shelf that supported a portable
TV set. The affidavit stated that this
equipment was removed at the end Gf
the Johnson administrations.
A second affidavit which, was shown
me at my request reported that the indi-
vidual knew that there Were in exist-
ence between 1965 and 1969 facilities
whereby the President or designated
members of the White Hoi se staff could
record telephone conversations by the
simple act of pushing a button on the
telephone or throwing a separate switch
which would activate a recording device.
The affidavit said that -either at the
end of each day or when-the recording
belt or tape was completed, the record-
ing would be removed and presented to
the secretary of the office concerned. Re-
cordings were transcribed by secretaries
in the White House staff as directed by
the office in which the recorders were in-
stalled. The affidavit said that recorders
were installed or available on selected
telephone lines in the office of the Pres-
ident and the office of his appointment
secretary.
It said, in addition, the same capability
was available at Camp David, the main
ranch house at the L.R.J. Ranch In
Texas, and the Presidential offices in the
Federal Office Building in Austin, Tex. I
recall one sentence that said: "These re-
corders were not equipped with any
warning devices."
In addition, the affidavit stated that
the conference table in the Cabinet Room
at the White House contained hidden
microphones which could be activated at
the conference table. The individual
stated in his affidavit that in January
1969, President Johnson personally di-
rected him to remove all recording de-
vices from the Cabinet Room and from
all telephones.
What I had said about tapping tele-
phone conversations or conversations
relates to a person wiretapping his own
telephones, a telephone subject to his
control. Tapping the wires of somebody
else's telephone, of course; is something
altogether different. Recently I ob-
served in the news, Vice President AGNEW
speaking of an experience he had In
Santa Fe, N. Mex.
I have the transcript of the news ac-
count concerning this happening. I want
to read from the transcript of the news-
cast of Kurt Lohbeck given at 7:05 a.m.
on June 28, 1973. Lohbeck said:
Former New Mexico Governor David Cargo
has stated that in 1968 while Spiro Agnew
was visiting him at the Governor's Mansion
in Santa Fe, he discovered all his private
phone lines had been tapped.
Cargo made the statement in light of
denials by assistants to the late Presi-
dent Johnson who said he never ordered
Then followed the words of Gov. David
Cargo of New Mexico who said:
Governor, then Governor Agnew, and pres-
ently Vice-President Agnew, had been our
guest in Santa Fe prior to his campaign ap-
pearance in New Mexico. In fact, at that time
the Governor's office was bugged, the tele-
phones were tapped, we called the ... both
the FBI, we had contacted them, finally, We
contacted the telephone company, they came
in and. debugged the whole system, they were
in fact bugged . . . and who installed them?
We don't know ... we were unable to dis-
cover it . but they were bugged, very
definitely bugged, we had to install devices
to shield it, we had to put exclusion sys-
tems Into all of our phones.
Lohbeek went on to say Cargo states
the phone taps were not discovered until
after'AGNEW left the Governor's Man-
sion. The transcript of the broadcast of
Lohbeek at 8:05 a.m. on June 28, 1973,
said: Former New Mexico Gov. David
Cargo has confirmed some reports orig-
inating from the Watergate Investigat-
ing Committee concerning taps on the
phone conversations of SPIRO AGNEW,
then candidate for Vice President in
1968. Cargo says he notified the FBI,
who told him to contact the phone com-
pany,11 which he did. The phone company
then found numerous taps, and installed
an exclusion system to prevent such
wiretapping. Cargo says he told AGNEW
of the taps, but at the time not much
attention was given to them.
Lohbeek went on to say reports in
Washington indicate that the Johnson
administration had ordered logs of
AGNEW'S phone calls.
Mr. President, the account of this re-
cent lawful recording system used by the
White House was presented by a Senate
Committee as a part of the Watergate
television program. I am sure that mil-
lions ! of Americans got the idea that
what took place in the White House was
in violation of law. That was not the case
at all. Can it be that anything is pre-
sumed to be revelant to this investiga-
tion if it can be used to damage the
President?
If f, committee of the Congress having
jurisdiction believes that the present law
should be changed with respect to plac-
ing recording devices on one's own phone,
they should advance such legislation for
the consideration of the whole Congress.
It is not right to portray lawful actions
in a Way which leads the public to believe
that they are in violation of the law.
Mr. President, in 1969 I did uncover
a case of wiretapping which was clearly
unlawful. The offenders were some
bureaucrats in the General Services Ad-
ministration. The man whose telephone
was tapped was a sightless young lawyer.
He was involved in the handling of mat-
ters concerning contract settlements. In-
formation carried over his telephone
could have been of great value to con-
tractors and others.
It is to the credit of Robert Kunzig,
then Administrator of the General Serv-
ices Administration, that he put a stop
to the practice.
Mr. President, if the committee con-
ducting the Watergate hearings wishes
to go into the question of wiretapping,
they, should do so thoroughly. They
should establish what the past practices
are and, above all, they should investi-
gate those wiretaps which are clearly
unlawful, such as the wiretapping of
Vice "President AGNEW and the wiretap-
pingthat took place in the GSA back in
1969.
Mr. President, I ask unanimous con-
sent to have reprinted my statement of
July 11, 1969, concerning wiretapping in
the GSA.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
[From the CONGRESSIONAL RECORD, July 11,
19691
ILLEGAL ELECTRONIC EAVESDROPPING IN THE
FEDERAL GOVERNMENT
Mr. CURTIS. Mr. President, today I am
going to disclose, with proof, the existence of
illegal electronic eavesdropping in at least
one large Government agency. There is,idded
evidence that this same electronic snooping
is going on in other agencies of the Federal
Government.
This malodorous practice started under the
previous administration and was so wide-
spread that it has been impossible to root out
in the 6 months that the Nixon administra-
tion has been in office. I hope my disclosures
today will speed the process.
I think it is a fair statement that a Fed-
eral agency cannot, without notifying either
employees or caller, listen in on telephone
conversations where national security is not
involved. To do so, I believe, is a violation of
law.
Seven States-California, Illinois, Mary-
land, Massachusetts,-Nevada, New York, and
Oregon-prohibit surreptitious eavesdrop-
ping by mechanical or electronic device.
Thirty-six States prohibit the specific type
of eavesdropping known as wiretapping
And Congress itself, in the enactment of
title III of the Omnibus Crime Control and
Safe Streets Act of, 1968, outlawed all wire-
tapping and electronic eavesdropping other
than that occurring within certain tightly
drawn instances involving suspected or-
ganized criminal activity or the national
security. In cases involving suspected ;iyndi-
eate crime, listening devices can be used only
with court permission. Even In emergt,ncies,
court permission must be 'obtained within
48 hours or the listening device and its use
are illegal.
Yet, I have here such a device, taken within
the past few weeks from a telephone at a
major Government agency; It was biought
to. my attention by a Government official
whose own telephone was being monitored il-
legally. I have sworn affidavits from him re-
counting the whole story. But for his honest
courage we would know nothing of t:als il-
legal activity.
The agency in question Is the General
Services Administration. I have already dis-
cussed this case with Administrator Robert
Kunzig of GSA. He Is entirely in agreement
with me as to the illegality and lmprcpriety
of such electronic eavesdropping.
In fact, Mr. Kunzig, when he heard about
the use of "snooper button" telephones and
monitoring systems within GSA, was shocked.
This was shortly after he became Ad:n.inis-
trator. He at once-on May 6-issued orders
forbidding this practice which is both ques-
tionable as to ethics and illegal by law,
Someone in GSA apparently did not feel
compelled to abide by the Administrator's
orders.
I call attention to the fact that the actual
discovery of the device I have here wa:, made
over a month after Mr. Kunzig'a order pro-
hibiting the use of what he termed "tele-
phone monitoring." I further call attention
to the fact that these devices were installed
and in use prior to Mr. Kunzig's appointment
as Administrator.
What I intend to do today is recount for
you the shameful story in as straightforward
and factual a manner as possible.
This Federal employee, awell-educated, re-
sponsible, professional person and, inciden-
tally, highly knowledgeable in the field of
electronics, states that many months ago--
long before Mr. Kunzig took over under the
Nixon administration-he became aware of
"excessive electronic noise and a very slight
decrease in power" on his telephone ltae.
Mr. President, I have no personal lcnowl-
edge of what this sort of thing means,
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CONGRESSIONAL RECORD - HOUSE
tion on the quantity of the substance to
be mailed. The reported bill permits only
the mailing of a sample not to exceed
1. ounce.
On page 3, line 4: of the reported bill
the language is as follows:
"Notwithstanding any other provision of
this title and notwithstanding any other pro-
vision of law, a sample of any substance not
to exceed one ounce in weight suspected of
being a drug may be mailed by any parent,"
I think this language takes into ac-
count fully what the gentleman has
spoken about.
Mr. ROUSSELOT. I thank the gentle-
man for his explanation.
Is the gentleman also convinced now
that the legislation has so been tightened
that the various research facilities that
would. be used to examine these sub-
stances that are mailed in to law enforce-
ment facilities will not be used as mis-
used as a "free service" for individual
drug pushers who are trying to ' con-
vince so-called clients that they have
the best dope substance in town, so to
speak? Is the gentleman convinced?
Mr. DULSKI. Very definitely. I think
by the provisions we put in the reported
bill overcomes this possibility. Only the
generic name of thedrug will be revealed.
Subsection (b) of the new section reads
as follows:
(b). An envelope in which a substance is
mailed under this section may contain a self-
selected code number to insure that the
sender will retain complete anonymity and
will permit the sender to inquire by tele-
phone of the person to whom it was mailed
whether the substance which he mailed is in
fact a drug, and if so, the generic name of
the drug and the names and addresses of
local social and law enforcement agencies
which are capable and willing to assist the
person who forwarded the drug sample.
I think that puts another protection
in the bill.
Mr. ROUSSELOT. In other words, it
would be highly unlikely and impossible
then for a drug pusher to try to encour-
age his clientele to use this system in-
correctly to convince his users that he
has a higher degree of narcotics to sell
and that he can test it for himself. Is that
correct?
Mr. DULSKI. I am fully aware. of the
fact and I am satisfied with the language
in the bill.
Mr. ROUSSELOT. I thank the gentle-
man.
Mr. DERWINSKI. Mr. Speaker, I rise
in support of H.R. 12383, a bill to allow
a person to mail, in complete anonymity,
a substance suspected of being a drug to
Government officials for analysis pur-
poses.
In the recent past, drugs have become
a common household word. No matter
where we live, large or small community,
no matter our social standing, no matter
if we are affluent or poor, no matter if wo
are educated or not educated, drugs have
managed to infiltrate every rank. Drugs
just do not discriminate.
There are massive efforts now on every
level of government to attack this criti-
cal problem, and that is good. What this
legislation purports to do is to give par-
ents and concerned people an additional
tool to prevent and stop drug addiction
before it is too late.
In many communities throughout the
United States, drug analysis programs
are in effect, and are effective. For these
communities, H.R. 12383 will supplement
their programs.
Hopefully, this bill will reach out to
those parents and children who are sus-
picious of law enforcement officials, for
whatever reason, and give them an op-
portunity to anonymously mail suspected
substances to Government officials for
analysis. It is not important why these
people have not or will not avail them-
selves of the present means to have a sus-
pected substance analyzed. What is im-
portant is what we, the Congress, afford_
the communities and, of course, parents
and children, another means to help
themselves fight a destructive foe, which
has claimed too many lives already.
Mr. Speaker, this is good legislation. It
will, I believe, be used and will be of help
to many people.
Mr. NIX. Mr. Speaker, H.R. 12383 with
amendments was reported unanimously
in my Subcommittee on Postal Facilities
and Mail and in the full Post Office and
Civil Service Committee by Members of
both parties.
Extensive hearings on this bill dem-
onstrated that the bill.is necessary be-
cause it will clarify the law, in that it
will positively provide an exemption in
title 39 of the United States Code for
the mailing of samples of narcotics for
testing by Government agencies.
The purpose of such testing in many
voluntary local government programs is
to ascertain whether or not a substance
is a dangerous drug and what its type is,
while providing anonymity to the sender.
This is done by identifying a specific
sample by number. An anonymous tele-
phone inquiry is sufficient to obtain the
results. While this program has been of
great aid to parents and others, it can-
not develop fully until a means is found
for the mailing of such samples, since
the personal delivery of such samples
breaks down the anonymity of persons
participating.
It is true that prosecution under Fed-
eral legislation has to be based on the
intent to commit a felony, and that
prosecutions for the mailing of samples
would probably never be brought. It is
also true that this interpretation is based
on an inference. Therefore, it is impor-
tant to state positively in the law that
the mailing of samples of suspected nar-
cotics to Government agencies for test-
ing is within the law and not a violation
of the postal statutes.
We seek to make the unclear, clear. We
believe that this legislation should be
enacted because voluntary' testing pro-
grams depend on public trust. This bill
will aid that trust and protect the ano-
nymity of those participating.
On behalf of the membership of my
subcommittee, I urge the House to enact
this legislation introduced by our great
chairman, the Honorable THADDEUS J.
DULSKI. I congratulate him on the au-
thorship of this legislation.
The SPEAKER. The question is on
the motion offered by the gentleman
from New York (Mr. DULSKI) that the
House suspend the rules and pass the
bill H.R. 12383, as amended.
August 14, 1972
The question was taken; and (two-
thirds having voted in favor thereof) the
rules were suspended and the bill, as
amended, was passed.
GENERAL LEAVE
Mr. DULSKI. Mr. Speaker, I ask
unanimous consent that all Members
have 5 legislative days to extend their
remarks on the bill, H.R. 12383. -
The SPEAKER. Is there objection to
the request of the gentleman from New
York?
There was no objection.
CONCERNING THE WAR POWERS OF
CONGRESS AND THE PRESIDENT
Mr. ZABLOCKI. Mr. Speaker, I move
to suspend the rules and, pass the bill
(S. 2956) to make rules governing the
use of the Armed Forces of the United
States in the absence of a declaration of
war by the Congress, as amended.
The Clerk read as follows:
S. 2956
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That the
Congress reaffirms its powers under the Con-
stitution to declare war. The Congress recog-
nizes that the President in certain extraor-
dinary and emergency circumstances has
the authority to defend the United States
and its citizens without specific prior author-
ization by the Congress.'
SEc. 2. It is the sense of Congress that the
President should seek appropriate consulta-
tion with the Congress before involving the
Armed Forces of the United States in armed
conflict, and should continue such consulta-
tion periodically during such armed conflict.
SEc. 3. In any case in which the President
without specific prior authorization by the
Congress-
SEc. 4. Nothing in this Act is intended to
alter the constitutional authority of the
Congress or of the President, or the provi-
sions of existing treaties.
(1) commits United States military forces
to armed conflict;
(2) commits military forces equipped for
combat to the territory, airspace, or waters
of a foreign nation, except for deployments
which relate solely to supply, repair, or train-
ing of United States forces, or for humani-
tarian or other peaceful purposes; or
(3) substantially enlarges military forces
already located in a foreign nation;
the President shall submit promptly to the
Speaker of the House of Representatives and
to the President of the Senate a report, in
writing, setting forth-
(A) the circumstances necessitating his
action;
(B) the constitutional, legislative, and
treaty provisions under the authority of
which he took such action, together with
his reasons for not seeking specific prior
congressional authorization;
(C) the estimated scope of activities; and
(D) such other information as the Presi-
dent may deem useful to the Congress in
the fulfillment of its constitutional respon-
sibilities with respect to committing the Na-
tion to war and to the use of United States
Armed Forces abroad.
The SPEAKER. Is a second demanded?
Mr. FINDLEY. Mr. Speaker, I de-
manded a second.
The SPEAKER. Without objection, a
second will be considered as ordered.
There was no objection.
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August 14, 1972 CONGRESSIONAL RECORD - HOUSE
11(di The Postal Service shall 'prescribe
such regulations as may be appropriate to
carry out the provisions of this section.".
SEc. 2. The table of sections of chapter 30
of title 39, United States Code, is amended
by adding at the end thereof the following:
"3012. Mailing of drugs for analysis".
SEC. 3. Section 308(a) of the Controlled
Substances Act (21 U.S.C. 828(a)) issmended
by adding immediately before the period at
the end thereof the following: "or except
under section 3012 of title 39".
The SPEAKER. Is a second demanded?
Mn GROSS. Mr. Speaker, I -demand
a second.
The SPEAKER. Without objection, a
second will be considered as ordered.
There was no objection.
Mr. DULSKI. Mr. Speaker, I yield my-
self such time as I may consume.
(Mr. DULSKI asked and was given
permission to revise and extend his
remarks.)
Mr. DULSKI. Mr. Speaker, -1 spon-
sored H.R. 12383 in order to remove one
more obstacle in our constant fight
against drug abuse. This legislation will
open us one more avenue of communi-
cation-the U.S. mails-between con-
cerned parents and local social and law
enforcement agencies engaged in drug
abuse prevention.
H.R. 12383 specifically authorizes a
sample of any substance, not exceeding
1 ounce in weight, suspected of being a
drug, to be mailed by any parent to an
employee of the Federal Government or
a State or local government engaged in
drug abuse prevention, in order to ascer-
tain whether the substance is in fact a
drug.
The legislation provides that the sub-
stance may be mailed in an envelope
containing a self-selected code number to
insure that the sender will retain com-
plete anonymity, and will permit the
sender to inquire at a later date by tele-
phone as to whether the substance which
he mailed is in fact a drug. If the sub-
stance is a drug, he will be advised of
the generic name of the drug and the
names and addresses of local social and
law enforcement agencies which are
capable and willing to assist the person
who forwarded the drug sample.'
Mr. Speaker, there is no additional cost
involved in this legislation and I am-
convinced that it will add one more tool
to be used in the fight against drug abuse.
Many parents are finding substances
in their homes or in the personal posses-
sions of their children which they sus-
pect may be dangerous drugs or narcot-
ics. It is important at this stage that
the parent learn just what the substance
is, whether it is in fact dangerous or not,
so that a meaningful confrontation and
decision can be made.
Many parents are reluctant or afraid
to go to the logical source, a local law en-
forcement agency, for an analysis of the
substance. Moreover, most parents are
convinced that there is no logical way to
mail a suspected substance to the local
officials and obtain a report of the analy-
sis without subjecting their child to ar-
rest.
We were told by representatives of the
Postal Service that at the present time
there Is no provision of law which, of its have no fear of arrest to themselves or Mr. DULSKI. As the gentleman recalls,
own force, prohibits the mailing of drugs. their children if they bring substanc i rry~e i d no limita-
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The comprehensive Drug Abuse Preven-
tion and Control Act of 1970 (21 U.S.C.
843 (b)) prohibits the use of any com-
niunication facility, including the U.S.
mails, to commit or facilitate the com-
mission of an act constituting a felony
uxidei the 1970 act. One such felony is
the knowing or intentional unauthorized
distribution of certain drugs.
Also, section 1718 of title 18, United
States Code, prohibits the mailing of
poisons and Materials which may kill or
injure another, and authorizes the Post-
master General to limit the transmission
of poisonous drugs and medicines.
In view of the fact that the statutes
declaring drugs rionmailable require an
element off knowledge to involve the
criminal sanctions, the Postal Service
takes the position that regulations
could be issued under existing law to per-
mit the nailing to law enforcement
agencies for analysis of a substance
which is merely suspected of being a
drug.
While conceivably the 'Postal Service
could corre t the difficulty tinder existing
law, nevertheless, such action has not
been taken and this legislation will make
it abundantly clear that the suspected
substance may be sent through the mails
for the purpose of obtaining ari.analysis.
Mr. Speaker, for quite some time I
have been concerned, both as a, parent
and as a Member of Congress, with the
alarming increase in the use of 'drugs
by our teenagers.
Unfortunately, most parents do'.not
know where to turn when they first learn
that a drug problem may exist within
their own homes. Most of us have an
inherent hesitancy to consult the logi-
cal authoritative source-the local so-
cial and law, enforcement agencies en-
gaged in drug abuse prevention.
There is no question in my mind that
the social and law enforcement agen-
cies are willing and eager to help par-
ents seeking to intercept the path to
drug addiction among minors.
'I discussed this drug problem late last
year with the local law enforcement peo-
ple in my', district. One in particular,
Michael A. Amico, sheriff of Erie Coun-
ty, who has had over 15 years serv-
ice of law enforcement in fighting drug
abuse, was especially helpful.
During hearings held by my Subcom-
mittee on Investigations in Buffalo, N.Y.,
Sheriff Amico testified that there are
two major, avenues that we can and
must take. The first is the unrelenting
enforcement of drug abuse laws. The
second is the dissemination of informa-
tion and the opening of the lines of
communication between parents, abus-
ers and potential abusers, and our law
enforcement agencies.
Mr. Speaker, it is this goal of opening
lines of communication that this legis-
lation will facilitate. What in effect will
mailing accomplish?
We are looking for cooperation from
parents. We are trying to overcome the
implied threat of arrest or exposure
should parents bring suspected illegal
drugs to a police station. Sheriff Arnico
stated that in. spite of repeated assur-
for analysis and verification, most par-
ents still have the fear of arrest and re-
fuse to confide in the police.
This legislation will effectively remove
any -apprehension by the parent in at
least taking that first step, that very im-
portant step, which is the identification
of the unknown substance which is sus-
pegted of being a drug.
I would like to reecho Sheriff Amico's
statement that there is absolutely no
basis for anyone to fear arrest in con-
nection with the procedure that would be
established under' this legislation. First
of all, the sender would have complete
anonymity. There is no possible way of
the local law enforcement officials as-
certaining the identity of the inquirer
unless the inquirer chooses to identify
himself. Second, as pointed out by the
Postal Service officials during the testi-
mony on the bill, the criminal laws in-
volved require an element of knowledge
in order to invoke the criminal sanctions.
It seems clear under these conditions
that an individual could not be success-
fully prosecuted for mailing to law en-
forcement agencies for analysis a sub-
stance which he merely suspected of be-
ing a drug.
Mr. Speaker, I urge the favorable vote
today on H.R. 12383.
The SPEAKER. The Chair recognizes
the gentleman from Iowa (Mr. GROSS).
Mr. GROSS. Mr. Speaker, the distin-
guished chairman of the House Commit-
tee on Post Office and Civil Service, the
gentleman from New York (Mr. DULSKI)
has adequately explained the bill.
I support the legislation and urge its
adoption.
(Mr. GROSS asked and was given per-
mission to revise and extend his
remarks.)
Mr. ROUSSELOT. Mr. Speaker, will
the gentleman from New York (Mr.
DULSKI) yield?
Mr. DULSKI. I yield to the gentleman
from California, a member of our com-
mittee.
Mr- ROUSSELOT. Mr. Speaker, I sat
in on many of these hearings. I know
the gentleman from New York, the chair-
man of our committee, has been very
much interested In trying to provide this
additional vehicle to allow parents and
others to, have a way to determine
whether harmful drug substances are, in
fact, being used.
Is the gentleman from New York satis-
fied that the bill, as it is now before the
House, has iriuluded the preventative
measures that were indicated as needed
by the sheriff of Los Angeles County and
the chief of police of the city of Los An-
geles and others who wanted to be sure
that this system which is being estab-
lished in this legislation does not provide
a method for major drug pushers to mis-
use this system?
Mr. DULSKI. In my "opinion the re-
ported bill does provide those safeguards.
I think we have put all, the safeguards
into the bill.
Mr. ROUSSELOT. Could the gentle-
man explain how the original legislation
was altered to prevent the kind of prob-
lems that were suggested by the chief of
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H 7576 CONGRESSIONAL RECORD - HOUSE
interventions without prior consultation
with the Congress: The Bay of Pigs, the
intervention in the Dominican Republic,
the bombing of North Vietnam, the in-
cursion into Cambodia and Laos " are
among the examples.
Whatever our individual beliefs may be
relative to the merits of these unilateral
actions by the Executive, we can agree
that Congress should have had a signifi-
cant role in the decision to-mount each of
these actions.
What was it that the framers of our
Constitution had in mind when they gave
exclusively to Congress the power to de-
clare war? To declare war is to decide
on war, to declare it as a national policy.
It was intended that after the Congress
had decided to depart from the normal
state of affairs and declare war, and
only after such declaration, the Presi-
dent, as Commander in Chief, was to
exercise the power to conduct or direct
the war.
One of the strongest advocates of Ex-
ecutive power, Alexander Hamilton, writ-
ing in Federalist No. 69, said that the
President's authority as Commander in
Chief "would amount to nothing more
than the supreme command and direc-
tion of the military and naval forces, as
first general and admiral of the con-
federacy."
Distinguished historians have already
assembled evidence on this matter which
points inescapably to the conclusion that
the Constitution envisions the Congress
as the sole and exclusive repository of
the power both to declare war and to
judge its propriety.
But now we are told that such a view
of the warmaking powers of Congress is
hopelessly archaic. We are told that we
live in a world of instantaneous com-
munication, where momentous decisions
need to be made in less time than it takes
to complete -a quorum call. Perhaps so.
But there are two compelling responses
to that argument:
First, there is little precedent for such
a view historically. I invite the Executive
or its supporters to produce one example
where the use of the warmaking powers
by the President, without authority of
Congress, was required by the nature of
the eihergency faced by the Nation. As
sudden and unexpected as the attack on
Pearl Harbor was, we went to war only
after its declaration by Congress. -
Second, if we are speaking of an un-
precedented, unspeakable surprise at-
tack, one which the President could not
reasonably have anticipated, legislation
can cover such a contingency quite ade-
quately. Under the provisions of S. 2956
as passed by the Senate, in a dire emer-
gency, the President -need not come to
Congress for authority to repel an at-
tack or to save American lives abroad; he
can act, and then forthwith request the
needed authority from Congress. His
hands are not tied at the crucial mo-
ment. But he must convince the Con-
gress, within a.few days after he acts, of
the rightfulness of his unilateral action.
I submit that that is not an unreasonable
duty to impose.
Mr. Justice Jackson once wrote words
that are timely and relevant to the is-
sue we are discussing today. He wrote:
We may say that power to legislate for
emergencies belongs In the hands of Con-
gress, but only Congress itself can prevent
power from slipping through its fingers.
And that, Mr. Speaker, is the very es-
sence of the war powers debate. I urge
the House to approve the pending bill to-
day, and bring Congress a step closer to
reasserting its rightful constitutional
powers and responsibilities in- this awe-
some area.
The SPEAKER. The question is on the
motion offered by the gentleman from
Wisconsin (Mr. ZABLOCKI) that the House
suspend the rules and pass the bill S.
2956, as amended.
The question was taken.
Mr. CHARLES H. WILSON. Mr.
Speaker, I object to the vote on the
ground that a quorum is not present and
make the point of order that a quorum is
not present.
The SPEAKER. Evidently a quorum is
not present.
The Sergeant at Arms will notify ab-
sent Members, and the Clerk - will call
the roll.
The question was taken; and there
were-yeas 344, nays 13, not voting 75,
as follows:
[Roll No. 3191
YEAS-344
Abbitt
Chappell
Gettys
Abernethy
Clark
Gibbons
Abourezk
Clausen,
Gonzalez
Adams
Don H.
Goodling
Addabbo
Clawson, Del
Grasso
Anderson,
Clay
Gray
Calif. -
Cleveland
Green, Oreg.
Anderson, 111.
Collier
Griffin
Anderson,
Collins, Ill.
Griffiths
Tenn,
Collins, Tex.
Gross
Andrews, Ala:
Colmer
Grover
Andrews,
Conable
Gubser
N. Dak.
Conover
Gude
Annunzio
Conyers
Haley
Archer
Corman
Hall
Arends
Coughlin.
- Hamilton
Ashley
Culver
Hammer-
Aspin
Curlin
schmidt
Aspinall
Daniel, Va.
Hanley
Baring
Danielson
Hanna
Barrett
Davis, Ga.
Hansen, Idaho
Begich
Davis, S.C.
Hansen, Wash.
Belcher
de in Garza
Harrington
Bell
Delaney
Harsha
Bergland
Denholm
Harvey
Bevili
Dent
Hastings
Biaggi
Derwinski
Hathaway
Biester
Devine
Hawkins
Bingham
Dickinson
Hays
Blatnik
Dingell
Heckler, Mass.
Boggs
Donohue
Heinz
Boland
Dorn
Helstoskt
Bolling
Downing
Henderson
Bow
Drinan
Hicks, Mass.
Brademas
Dulski
Hicks, Wash.
Brasco
Duncan
Hillis
Bray
du Pont
Hogan
Brinkley
Edwards, Calif.
Holifield
Brooks
Eilberg
Horton
Broomfield
Erlenborn
Hosmer
Brotzman
Esch
Howard
Brown, Ohio
Eshleman
Hull
Broyhill, N.C.
Evans, Colo.
Hungate
Broyhill, Va.
Fascell
Hunt
Buchanan
Findley
Hutchinson
Burke, Fla.
Fisher
Ichord
Burke, Mass.
Flood
Jacobs
Burleson, Tex.
Flowers
Jarman
Burlison, Mo.
Flynt
Johnson, Calif.
Byrne, Pa.
Foley
Johnson, Pa.
Byrnes, Wis.
Ford, Gerald R. Jonas
Byron
Ford,
Jones, Ala.
Cabell
William D.
Jones, N.C.
Caffery
Forsythe
Jones, Tenn.
Camp
Fountain
Karth
Carey, N.Y.
Fraser
Kazen
Carlson
Frenzel
Keating
Carney
Fulton
Kee
Casey, Tex.
Fuqua
Kemp
Cederberg
Galiflanakis
King
Celler
Garmatz
Kluczynski
Chamberlain .
Gaydos
Kyl
August 14, 1972
Kyros
Pettis
Springer
Landgrebe
Peyyer
Staggers
Latta
Pickle
Stanton,
Link
Pike
J. William
Long, Md.
Pirnie
Stanton
Lujan
Poage
,
James V.
McClory
Podell
Steed
McCloskey
Poff
Steele
McClure
Powell
Steiger, Ariz.
McCollister
Preyer, N.C.
Steiger, Wis.
McCulloch
Price, Ill.
Stephens
McDade
Pryor, Ark.
Stokes
McEwen
Pucinski
Stratton
McFall
Purcell
Stubblefield
McKay
Quie
Stuckey
McKevitt
Randall
Sullivan
Macdonald,
Rangel
Symington
Mass.
Rees
Talcott
Mahon
Riegle
Taylor
Maliliard -
Roberts
Teague, Calif.
Mallary
Robinson, Va.
Teague, Tex.
Mann
Robison, N.Y.
Terry
Martin
Rodino
Thompson, Ga.
Mathias, Calif.
Roe
Thomson, Wis.
Mathis, Ga.
Rogers
Thone
Matsunaga
Ronealio
Tiernan?
Mayne
Rooney, Pa.
Udall
Mazzola
Rosenthal
Ullman
Meeds
Rostenkowski
Van Demon
Melcher
Roush
Vander Jagt
Mlkva
Rousselot
Vanik
Miller, Calif.
Roy
Waggonner
Miller, Ohio
Roybal
Wampler
Mills, Ark.
Runnels
Ware
Minish
Ruth
Whalen
Mink
St Germain
Whalley
Mitchell
Sandman
White
Mizell
Sarbanes
Whitehurst
Monagan
Satterfield
Whitten
Montgomery
Saylor
Widnall
Moorhead
Scherle
Williams
Morgan
Schneebeli
Wilson, Bob
Mosher
Schwengel
Wilson,
Murphy, Ill.
Scott
Charles H.
Myers
Sebelius
Winn -
Natcher
Seiberling
Wolff
Nedzi -
Shipley
Wyatt
Nelsen
Shoup
Wydler
Nichols
Shriver
Wyman
Nix
Sikes
Yates
Obey
Sisk
Yatron
O'Hara
Skubitz
Young, Fla,
O'Neill
Smith, Iowa
Young, Tex.
Patman
Smith, N.Y.
Zablocki
Patten
Snyder
Zion
Perkins
Spence-
Zwach
NAYS-13
Badillo
Evans, Tenn.
Moss
Bennett
Green, Pa..
Reuss
Burton
Hechler, W. Va. Scheuer
Dow
Kastenmeier
Eckhardt
Koch
NOT VOTING-75
Abzug Frey
Murphy, N.Y.
Alexander Gallagher
O'Konski
Ashbrook Giaimo
Passman
Baker Goldwater
Pelly
Betts Hagan -
Pepper
Blackburn Halpern
Price, Tex.
Blanton Hebert
Quillen
Brown, Mich. Keith
Railsback
Carter Kuykendall
Rarick
Chisholm Landrum
Reid
Clancy Leggett
Rhodes
Conte Lennon
Rooney, N.Y.
Cotter Lent -
Ruppe
Crane Lloyd
Ryan
Daniels, N.J. Long, La.
Schmitz
Davis, Wis. McCormack
Slack
Dellenback McDonald,
Smith, Calif.
Dellums Mich.
Thompson, N.J.
Dennis McKinney
Veysey
Diggs McMillan
Vigorito
Dowdy Madden
Waldie
Dwyer Metcalfe
Wiggins
Edmondson Michel
Wright
Edwards, Ala, Mills, Md.
Wylie
Fish Minshall
Frelinghuysen Mollohan
So (two-thirds having voted in favor
thereof) the rules were suspended and
the bill, as amended, was passed.
The Clerk announced the following
pairs :
Mr. Hebert with W. Rhodes.
Mr. Rooney of New York with Mr. Rails-
back.
Mr. Daniels of New Jersey with Mr. Conte.
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August 14, 1972 CONGRESSIONAL RECORD HOUSE 1117575
burial of their sons, lost to battles they part our fgrefathers intended in the ex- tion we find today in our society. The
were not permitted to win. ercise of tl}e war making power. price we are paying is high and we have
Letters have poured into my office re- Mr. SISIf. Mr. Speaker, I support Sen- the right to ask if, in view of the alter-
vealing the anguished scars this war is ate bill S. 2956 which is before us here natives, the price is not too high.
leaving on our people. Too many young today and large its passage. This bill does not tie the President's
people regard our democratic process This bill' introduced by Senator JAVITS hands in the case of an attack, such as at
with skepticism and our military system of New York Is similar to one I intro- Pearl Harbor, where he must respond
has suffered tremendously in both pres- duced in May 1971. immediately. And it would not tie hi,,. 11 tige and morale. Our people ache to see My bill was incorporated into a joint hands in the event of a nuclear attack or.
this matter settled. Too many of our resolution which I supported on the floor the United States or any of its territories;
comrades live among us as maimed and a year ago` last August when it passed by or possessions. What it might avoid In
disfigured reminders of the horrible sac- a voice vote. the future is the escalation of small unit
rifices of war. I said then that the resolution was not actions, piecemeal, bit by bit, Into war.
I feel most profoundly that if Congress as strong a'statement of congressional in- The Javits bill would allow the Prest?
had either declared or refused to allow tent to clatify presidential war powers as dent to open hostilities where there was
our involvement in Vietnam at its out- I would have liked. I had the same res- an attack on the United States, or threes
set, a clear cut attitude would have been ervation when I supported a similar reso- of an attack, allow retaliatory action,
established and the national hurt of our lution in the last session of Congress. and allow action to forestall the threat
people avoided. However, in both cases I felt I should of an attack. It would allow the Coin -
I deeply believe that the Constitution support the committee on Foreign Af- mander in Chief to repel an attack
is a I ing document. The Congress of fairs which had considered my bill, sev- against the Armed Forces outside the
the l;?ted States must activate its re- eral others of similar nature, conducted -United States, on territories and posses-
repsonsibilities under article I. section hearings and then reported out a clean sions, or to forestall the threat of such an
2 which states that the Congress shall bill to the' House. The committee, I felt, attack. It would allow him to use what-
have the power to declare war, and to had access to a great deal more informa- ever force necessary to protect U.S. citi-
make all laws necessary and proper for Lion, the testimony of witnesses expert in zens being evacuated from foreign coun-
executing those powers. international affairs, than I and I was tries, and allow the use of the Armed
This resolution on which we vote to- happy to go along. Forces in fulfilling treaty obligations
day in no way alters the President's I revies these steps only to point up where the treaty Called for armed actior;.
power to initially engage our forces and the fact that now we have the opportu- The bill also requires the President to
repel a sudden attack or to protect Amer- nity to act on a measure, which to my report to Congress within 30 days cf
dean lives and property. It does require mind, accomplishes what we who intro- actions described in the act in writing as
the President to notify the Congress duced bills last year, set out to accom- to the reasons for his actions, and pro-
promptly of his actions and his reasons plish. vides that continuation of hostilities
for committing troops. That objective is clearly stated in this longer than 30 days after their initiation
The framers of the Constitution re- bill where'it says: must be approved by specific congres-
alized that the President, under certain The purpose of this act is to fulfill the sional legislation.
circumstances, might have to take de- intent of the framers of the Constitution of I do not believe this bill would, If en -
fensive action to repel and subdue a sud- the United States and to insure that the acted, reduce the President's flexibility to
den attack on this great Nation. But that collective judgment of both the Congress act where he must respond immediately.
was the extent of the war making power and the President will apply to the initia; I hope, Mr. Speaker, this bill will irk. -
tion of hostilities involving the Armed prove communications between the exei -
they were willing for the President to Forces of the United States and the con- utive branch and Congress. After all, it
exercise. tinuation Of such hostilities.
11 t b t tl1
eep e
l
th f
This was made quite clear in a letter We do not intend, Mr. Speaker, to en-
from Thomas Jefferson to James Madi- croach on the recognized powers of the
son in 1789 in which Jefferson wrote: President, our Commander in Chief, to
We have already given in example one conduct hostilities authorized by Con-
effectual check to the dog of war by trans- gress. That is not our purpose. We do
ferring the power of letting him loose from intend to bring Congress back into the
the executive to the legislative body, from constitutional framework as a fully par-
those who are to spend to those who are to
pay. ticipating; partner in the decision to
The United States is the leader of the
free world today. But this is not so be-
cause our citizens are anxious that we
take the lead in military battles. The
mantle of leadership has been placed
upon our shoulders-not by any nation-
but by destiny and circumstance--by the
sheer fact of our physical and economic
strength, and by our role as the only real
counter to the forces of Communism in
the world today. If events in Indochina
have taught us to better fulfill that role,
then it is not a wholly dark story. While
this resolution in no way affects our pres-
ent involvement, the mistakes of the past
must be heeded and prevented in the
future,
Will we take a good step today for
unity tomorrow? We must do no less.
Mr. Speaker, we in the Congress have
the power to assure the American people
that never again will we allow a situation
like Vietnam to occur. We can begin to
unify this Nation for the future by the
adoption of this resolution, thereby as-
suring our people that we will totally up-
hold the Constitution. Let us play the
make war.
The Vietnam war has shown us that
the country can become involved in hos-
tilities, and that involvement deepened,
as Laos and Cambodia demonstrate,
without Congress being adequately pre-
pared and informed in advance to make
a wise decision on the involvement. Con-
gress has been coerced into acting on the
brink of military defeat, to save allies,
when advance information could have
accomplished the same end.
Tonkin Gulf, Laos, and Cambodia
have amply demonstrated the error in
expanding hostilities without consulta-
tion with Congress and without sub-
mitting the case to the people of the
United States. Without popular approval
of the electorate, hostilities cannot long
has been agreat division in our society. cedures to prevent future undeclared
This, above all, we must avoid, if we wars. "No more Vietnams" should be air
must go to war, objective in setting up such procedures.
The executive branch bears a terrible The time for Congress to take this action
burden for failure to communicate with and to reassert its constitutional role is
Congress, and through Congress, the long overdue.
people of the country. This failure to Time after time in the past 11 years,
communicate has produced the polariza- Presidents have mounted major military
u coopers ion a w
is on
y wi
branches our Government can function.
If the bill has improved the dialog, I
think we have taken a step toward re-
solving our internal problems.
Thank you, Mr. Speaker.
Mr. MATSUNAGA. Mr. Speaker, I am
pleased to support the passage of this
amended version of S. 2956, which :s
identical to war powers legislation that
passed the House more than a year age.
I trust that this will break the proce-
dural logjam and enable Congress to ap-
prove a meaningful measure on this, the
most important issue faced by any na-
tion the fateful issue of peace or war.
Regardless of differences in individual
feelings about our present involvement in
Indochina, we all recognize I am sure,
that the war in Vietnam has torn this Na-
tion apart. Certainly, one of the major
underlying causes for this divisiveness is
the lack of a clear commitment of our
national will by the group closest to the
people-the Congress of the United
States.
If we have learned but one lesson from
the tragedy in Vietnam, I believe it is
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CONGRESSIONAL RECORD -HOUSE August 14, 1972
Mr. BINGHAM. I thank the gentle- United States-threat to the lives of
man. such citizens and nationals." On the
Mr. Speaker, I might point out that other hand, the present House version
the title of this bill does differ from the of S. 2956 that confronts us today, does
title of House Joint Resolution 1. The not involve the granting of war powers
title of this bill reads: to the President in such defensive con-
To make rules governing the use of the ditions. Instead it relates to the preroga-
Armed Forces of the United states in the tives of Congress in cases that are not
absence of a declaration of war by the defensive, but which commit U.S. mili-
Congress. tary forces to "armed conflict" and to
"
Does the gentleman feel that the bill
as reported by the House Foreign Affairs
Committee does in fact make rules gov-
erning the use of the Armed Forces?
Mr. ZABLOCKI. As the gentleman well
knows, in the committee the House For-
eign Affairs Committee not only struck
everything after the enacting clause but
also amended the title, so that the title
of the Senate version is stricken. On
page 11 of the bill, if the gentleman will
refer to it, it says we amend the title so
as to read:
An act concerning the war powers of the
Congress and the President,
military activity in a "foreign nation.
In other words, this House version of the
legislation openly contemplates U.S.
overseas involvement where the United
States could be just as easily regarded
as an aggressor, as not.
Moreover, the present House version of
S. 2956 establishes no date or time limit,
as the original version of the other body
did, when the President is obliged to re-
port to the Congress about the military
actions that he has directed the Armed
Forces to perform. This present House
version of the legislation would be
another abdication of the Congress from
its constitutional assignment as a co-
So the title'is amended by our action. ordinating branch of the Government,
Mr. BINGHAM. I thank the gentle- an abdication wrapped in words that lend
man. the appearance of congressional power,
If I might make one final comment, but let go the substance of that power.
as the gentleman knows, I believe Con- After this legislation, I mean to sug-
gress should go further than this bill gest that all naval ships of the United
does in terms of possible congressional States be designated no longer by the
restraint on the President's war powers prefix "USS", but by the prefix "POS"
and I hope that the conference in con- meaning "President's Own Ship," to
sidering the two measures will consider signify that our military services are no
the proposals I have submitted to the longer democratically controlled, but are
Foreign Affairs Committee and to the now, as in European days of yore, the
House providing for a very simple pro- personal instrumentalities of the mon-
cedure for :ction by either House in dis- arch.
approving the use of Armed Forces over- The legislation, Mr. Speaker, is just
seas by the President. I think it would another example of the rapid process of
be within the power of the conference erosion of congressional power that is
committee to agree on that procedure, evermore rapidly degrading this legisla-
reached that would go beyond the simple
reporting requirements of this measure.
Mr. ZABLOCKI. -I am confident that
the conferees will give full consideration
to all proposals. I am not in a position
to say now what the conference will final-
ly agree upon.
Mr. BINGHAM. I understand. I thank
the gentleman.
Mr. DOW. Mr. Speaker, I highly re-
gret that we are considering this very
grave legislation about the war powers
of the President on a suspension of the
rules, which is a fast process to dispose
of less consequential business. On the
contrary, Mr. Speaker, the war powers of
the President are a prime concern of the
Nation and of the Congress, and should
entail the most exhaustive examination
and debate.
The bill S. 2956, which is brought be-
fore us for passage today, is a very lame
and feeble proposal. It is' a nail in the
coffin of congressional strength, and a
device for elevating the power of the
Executive.
Foreign Air bill when this House re-
fused to set a date for the war in Viet-
nam. I deplore that action, in part be-
cause the date was not set, but also
because the Congress, by striking out
section 13 of the aid bill, refused to take
any cognizance of the war in Vietnam.
That war, as you know, is the chief issue
of major distress and concern in our
country today. In our precipitate col-
laboration with the Executive in the
transfer of the major constitutional
powers to the Executive, this body washed
its hands of the people's principal trial.
Now, by passing the bill S. 2956, we are
washing our hands again of the devices
of our art that the Founding Fathers
trustfully laid in our hands nearly 200
years ago.
Mr. DENNIS. Mr. Speaker, Senate
bill 2956, which is on the calendar under
suspension of the rules today, is, or
rather was, in its original form, the bill
introduced in the Senate by Senator
JAVITS of New York. It seeks to specify
The original S. 2956, as offered in the and to clearly restrict the situations in
other body, contemplates that actions which the President of the United
by the President of a military type would States can employ American Armed
be initiated "only-to repel an armed Forces in combat situations without
attack upon the United States" or "to re- prior specific consent of the Congress,
pel an armed attack of the Armed Forces and then require that any such employ-
of the United States located outside of ment, even in these limited cases, shall
the United States", or "to protect while end within 30 days unless Congress spe-
evacuating citizens and nationals of the cifically authorizes its continuance.
I could not support legislation of that
character. I believe in the President con-
sulting . Congress before commencing
hostilities, whenever it is at all possible,
and I approve of his making a prompt
report to the Congress of any action
taken. It is possible that even a measure
somewhat broader than this may be
feasible if very carefully considered. It
is impossible, however, to foresee all cir-
cumstances and I could not agree to any
ironclad and inimitable 30-day provi-
sion binding on the President of the
United States, even in ? cases of emer-
gency or possible attack on this Nation,
where perhaps some future Congress
might, for some reason now unforeseen,
fail or refuse to act.
This issue does not arise today because
S. 2956 in its original form is not before
us. The Committee on Foreign Affairs
has stricken the text of the Senate bill
and has substituted -the very different
and far less radical text of the House
bill, House Joint Resolution 1, which we
passed earlier, on August 2, 1971. The
idea, as I understand it, is to attempt to
bring the Senate to conference.
When House Joint Resolution 1 was
before the House on August 2, I had a
colloquy with the gentleman from Illi-
nois (Mr. FINDLEY) and the gentleman
from Wisconsin (Mr. ZABLOCKI) in
which we established that House Joint
Resolution 1, the provisions of which
are now inserted under S. 2956, would
not in any way restrict or limit the con-
stitutional power or the historic prac-
tice of the Chief Executive in the field of
exercising of war powers, and further,
that the requirements of House Joint
Resolution 1, respecting reporting by the
President to the Congress, could be sat-
isfied in a variety of formal- or informal
ways. These understandings, of course;
still operate and this legislative history
still applies to the present identical text
which has now been inserted in S. 2956,
and it is for this reason that I make no
objection to the consideration of the
present measure today under suspension
of the rules-a procedure which would
be unthinkable if we were considering
the Javits bill or any comparable legis-
lation.
Mr. CHAPPELL. Mr. Speaker, I rise in
support of S. 2956, a measure intended to
help reclaim for the Congress its consti-
tutional power to wage war. In May,
1971, I introduced legislation of like in-
tent which drew the cosponsorship of 56
of my colleagues. While the bill I intro-
duced was, in my opinion a much stronger
approach, I shall nevertheless support
this bill which makes some reclamation.
This bill does not chart a course for
our involvement in Vietnam but rather
to sound a charge for unity in a nation
divided. Certainly the need for American
solidarity was never greater than it is
today. Our Nation totters on the brink
of despair in its efforts to understand
America's involvement on another soil
10,000 miles away in a war we have never
chosen to win.
Our youth are frustrated from bale
stagnation and some have even turned to
the fantasy of drugs. Thousands of
mothers have cried in despair,at the
e
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August 14, 1972 CONGRESSIONAL RECORD - HOUSE
Mr. ZABLOCKI. Mr. Speaker, I yield
myself such time as I may consume.
(Mr. ZABLOCKI asked and was given
permission to revise and extend his
remarks.)
Mr. ZABLOCKI. Mr. Speaker, S. 2956
as amended is identical to legislation on
war powers-House Joint Resolution 1-
which was passed under suspension of
the rules by the House without recorded
dissent on August 2, 1971. Similar legis-
lation was passed by the House in the
91st Congress.
It is being brought before the House
again today in order to permit the House
to go to conference with the Senate on
war powers-legislation.
It should be noted that the parlia-
mentary difficulties which require repas-
sage of legislation which the House ap-
proved more than 1 year ago originated
in the other body.
The Senate failed to act on the House-
passed war powers measure which was
before it and, instead, passed out Its own
bill. Subsequently it was unable to get
the unanimous consent necessary to sub-
stitute the House resolution number for
its own.
Thus, an impasse was created in which
both bodies had approved war powers
legislation but had no way of getting
them to conference unless one house re-
passed its proposal as an amendment to
the other's legislation.
Since the problems originated in the
other body, we waited for its Members to
iron them out. It is now clear, however,
that the Senate will not be able to act
and that if there is to be any chance
for war powers legislation this session,
the House must take the initiative.
For that reason, the Committee on
Foreign Affairs callcd up the Senate-
passed war powers measure, S. 2956, and
amended it by striking out the entire
text of that bill and inserting the text
of House Joint Resolution 1.
When the House today passes. S. 2956
as amended, it will in effect be insuring
that the legislation it approved last
August as House Joint Resolution 1 will
go to conference with the Senate-passed
war powers proposal.
Thus, the action which the House Is
being asked to take today is in the na-
ture of a technical procedure rather
that a vote on the substantive issues in-
volved.
I believe that this body has made its
position clear by its two previous votes
overwhelmingly in favor of the concept
now embodied in S. 2956 as amended.
I also believe that the membersof this
body want effective, responsible, consti-
tutional war powers legislation to be part
of the record of this 92d Congress.
Such legislation may be possible if the
House and Senate proposals are per-
milted to go to conference.
There has been some question as to
whether the two proposals can be recon-
ciled. If I did not believe that they can
be reconciled, I would not be seeking a
House-Senate Conference.
The approach taken by the Senate
toward this issue has been considerably
different than that of the House, and I
have repeatedly expressed my misgivings
about the Senate measure-both on con-
stitutivial and practical grounds.
Despite! differences, there is room for
eomprom ' between the House and Sen-
ate version of war powers legislation. A
conferenc bill is possible which will be
acceptable to both houses of Congress.
Moreover, I believe a compromise is
possible which will be acceptable to the
President `so that he would be willing to
sign the legislation into law-or at least
permit it ,o become law by withholding
his veto. ;'
Perhaps, such an outcome is too opti-
mistic, but we shall never know unless
an attempt is made to reconcile the
House and Senate proposals in a confer-
ence.
Because the text of this bill has twice
before been approved by large majorities
under sus pension of the rules, I have
not dwelon the provisions of the leg-
islation. the committee report contains
a section-by-section analysis of the meas-
ure which should answer questions about
the scope of the bill.
In the !interests of conserving time,
I shallcor3clude by urging that the Mem-
bers of this body suspend the rules of the
House and approve this bill.
GENERAL LEAVE TO EXTEND
Mr. Speaker, I ask unanimous consent
that all l4embers may have 5 legislative
days in which to extend their remarks
on this resolution.
Mr. FII TDLEY. Mr. Speaker, I yield
myself such time as I may consume.
(Mr. FINDLEY asked and was given
permission to revise and extend his re-
marks.)
Mr. FI1 DLEY. Mr. Speaker, it is very
true that the Senate bill on war powers
goes well beyond the House measure, but
it is also true that some provisions of the
Senate bill are very similar to those en-
compassed by the House bill. I certainly
concur with the gentleman from Wiscon-
sin that there is a broad area of agree-
ment here which should make possible
agreement in conference.
I am very distressed that the confer-
ence has not occurred as yet, but I think
we all can be grateful to the gentleman
from Wisconsin (Mr. ZABLOCKI) for, per-
severing i the legislative underbrush
trying to et this bill to conference.
It repre$, ents a very important initia-
tive which if enacted by Congress and
signed into law would be the first time
in the history of the Republic that a for-
mal relationship has existed between the
executive !branch and the Congress in
this vital area of war powers.
The gentleman from Florida (Mr.
FASCELL) and the gentleman from Wis-
consin (Mt. ZABLOCcI) have both labored
long and and on this measure. I hope
their efforts will come to fruition.
Mr. ZALOCKI. Mr. Speaker;- I yield
1 minute to the gentleman from Flor-
ida (Mr. FFASCEiL).
Mr. FAOCELL. Mr. Speaker, I thank
the gentle an for yielding.
Mr. Speaker, I want to commend the
gentleman from Wisconsin (Mr. ZA-
BLOCKI) and the gentleman from Illinois
(Mr. FINDI.EY) who have worked very
diligently to bring this legislation to the
floor. I think wemust make the effort to
seek a compromise and I support S. 2956,
as amended to include the language of
House Joint Resolution 1, which I origi-
H 7573
nally cosponsored and which passed tl.e
House of Representatives in August of
1971.
In my judgment it is vitally important
that final action be taken during this
Congress on legislation designed to re-
affirm the constitutional authority of
Congress to declare war. House approval
of Senate-passed S. 2956, as reported l y
the Foreign Affairs Committee, will a.-
low the issue to be considered in confe)'-
ence, and put us one step closer to final
positive action this year.
There is no issue of greater impor-
tance and significance than the power io
declare war, to commit U.S. troops to
combat, to maintain our Nation's sect,
rity, and to work for world peace. -
Our experience in the last several
years in Southeast Asia, and particularly
in the Cambodian incursion, has clearly
pointed to the need for a reappraisal of
the war powers of Congress and the Ex-
ecutive. The Congress must take steps
to establish a working relationship with
the Executive to insure:
That American soldiers will never di e
unless it is absolutely necessary;
That this Nation will never again go
to war bit by bit with a minimum of con-
sideration; and
That if we must ever go to war agaili,
it will be only with the deep and wick -
spread understanding and support of.th e
American people.
I strongly urge the House to approve
the pending bill so that consideration of
this vital issue may proceed.
(Mr. FASCELL asked and was given
permission to revise and extend h' s
remarks.) -
Mr. BINGHAM. Mr. Speaker, will the
gentleman yield?
Mr. ZABLOCKI. I yield to the gentle-
man from New York.
Mr. BINGHAM. Mr. Speaker, I thank
the. gentleman for yielding. -
I wonder, first of all, if the gentleman
from Wisconsin could comment on tha
significance of the wording of the first
paragraph of the bill, which is the saws
as it was in House Joint Resolution 1 but
which has been questioned by some as
possibly committing the Congress to the
proposition that the President has au ?
thority to carry on the present hostilities
in Indochina.
Mr. ZABLOCKI. Under the Constitu ?
tion the President has the inherent pow-
ers of safeguarding our Nation. The Con-
gress in this resolution recognizes these
powers. We state that under certain ex-
traordinary and emergency circum?
stances the President has the authorit~T
to defend the United States and its citi-
zens without specific authorization bb,
the Congress. But there are other in.-
stances where the President may decide
to commit our troops. Then, under this
legislation, he should consult with the
Congress. And after he does commit the
troops he must explain the reasons why
and report the extent to which the troops
are being committed in a foreign land.
Mr. BINGHAM. Would it be correct to
say that this language is not intended to
approve or disapprove any particular use
of force that may be used by -the
President?
Mr. ZAITLOCKL That is very true.
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