The War Powers Resolution: Main Provisions

Public Law 93-148, November 7, 1973

1. It declared in Section 2(c), that the president's independent powers to introduce U.S. armed forces into hostilities extended only to "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces."

2. It required the president, in Section 3, to consult with the Congress "in every possible instance" before introducing U.S. armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

3. It required the president, in Section 4(a)(1), to report any such introduction, and it required the president, in Section 5(b), to remove U.S. forces from hostilities

within 60 days after submitting such a report unless the Congress by statute or declaration of war authorized their continuation. (The deadline could be extended another 30 days if the president certified "unavoidable military necessity" with respect to their safety in the course of bringing about their prompt removal.)

4. It required the president, in Section 5(c), to remove U.S. forces from hostilities if the Congress should at any time by concurrent resolution direct that they be removed.

5. It stated, in Section 8(a)(2) that presidential authority to introduce U.S. armed forces into hostilities may not be inferred from treaties in the absence of legislation specifically authorizing such introduction.

Proposed Senate/House Amendments Introduced 1988 (and again '89) would make changes: Fuller summary of amendments attached

--Repealed (but some language moved to revised section 5)

--Amends Section 3 to elaborate who is to be consulted including House Speaker and Pres pro-tem of Senate; House and Senate majority and minority leaders; would establish a schedule of regular mtgs with President; President can under some circumstances (national interest) limit consultations to above only; however, also establishes a "permanent consultative group" including all of above plus chairman and ranking minority member of the Senate and House cmts on foreign affairs, armed services and intelligence; outlines detailed procedures for consultation.

--Strikes Sections 5(b) and (c) and offers amended version (borrowing from sections of repealed section (2) above) that whenever US troops engaged "without a declaration of war or specific statutory authorization" the Senate and House consider a joint resolution which either (a) requires President to disengage or remove them or (b) provides specific authorization for continued use.

Invoked power of purse of Congress for a Member to go to court to seek declaratory judgment and injunctive relief on grounds President may have expended funds in violation of resolution. "No funds appropriated or otherwise made available under any law may be obligated or expended for any activity which would have the purpose or effect of violating" resolution but also would say "nothing in this section prohibits use of funds" to "remove" US troops "from hostilities or situations where imminent involvement in hostilities is clearly indicated..."

Note: Senate/House versions reintroduced this Congress ('89) along with at least six other bills offering various alternatives (one by Republican Dorman of California would repeal the War Powers Act). No action has been taken on any of the above bills.

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********* 100TH CONG. STATUS PROFILE FOR H.J.Res.601:

BRIEF TITLE........ War Powers Resolution Amendments of 1988

SPONSOR........... Hamilton

DATE INTRODUCED... June 28, 1988

HOUSE COMMITTEE... Foreign Affairs
Rules

OFFICIAL TITLE.... A joint resolution amending the War Powers
Resolution to provide expedited procedures
for legislation requiring the
disengagement of United
States Armed Forces involved in
hostilities or
providing specific authorization for their
continued engagement in such hostilities,
and for
other purposes.

Jun 28, 88 Referred to House Committee on Foreign Affairs.

Jul 11, 88 Referred to Subcommittee on Arms Control,
International Security and Science.

Jun 28, 88 Referred to House Committee on Rules.

BILL DIGEST ..... Jun 28, 88. War Powers Resolution
Amendments of 1988

Repeals certain provisions of the War Powers
relating to the exercise of war powers by the
President.

Resolution

Amends the Resolution to require that, where
consultation is required under such Act, the President
shall consult with: (1) the Speaker of the House of Representatives and
the President pro tempore of the Senate; and (2) the Majority and
Minority Leaders of the House and Senate. Requires the President and
such Members to establish a schedule of regular meetings to ensure
adequate consultation on national security issues. Requires that,
whenever a majority of such Members so request, the President shall
consult with a permanent consultative group (to be established within
the Congress under this Act) unless the President determines that
limiting consultation to such Members is essential to meet
extraordinary circumstances affecting the most vital security interests
of the United States. Requires the membership of the permanent
consulting group, in addition to such Members, to include the chairmen
and ranking minority members of the House and Senate committees on
foreign affairs, armed services, and intelligence.

Repeals provisions of the Resolution requiring the President to
terminate any use of U.S. armed forces: (1) within 60 days after such
use is required to be reported to the Congress under the Resolution,
unless the Congress specifically authorized their
continued use; or (2) if the Congress so directs by concurrent

resolution.

Provides that, whenever U.S. armed forces are engaged in hostilities or other situations described in a report submitted (or deemed to be required to be submitted) by the President under the Resolution without a declaration of war or specific statutory authorization, it shall be in order in the Senate or House to consider a joint resolution (approved by the permanent consulting group) which either: (1) requires the President to disengage or remove such forces; or (2) provides specific authorization or their continued engagement or use. Sets forth congressional priority procedures for such a joint resolution.

Authorizes any Member of the Congress to bring an action in the U.S. District Court for the District of Columbia for a declaratory judgment and injunctive relief on the ground that the President or U.S. armed forces obligated or expended funds in violation of such Resolution. Prohibits the obligation or expenditure of funds for any activity which would have the purpose or effect of violating any provision of law requiring the disengagement of U.S. armed forces or authorizing the continued engagement of such forces.

Repeals provisions of the Department of State Authorization Act, FY 1984 and 1985, relating to expedited procedures for joint resolutions and bills requiring the removal of U.S. armed forces from hostilities.

DS

********* 100TH CONG. STATUS PROFILE FOR S.J.RES.323:

BRIEF TITLE....... War Powers Resolution Amendments of 1988

SPONSOR.......... Byrd

DATE INTRODUCED... May 19, 1988

SENATE COMMITTEE.. Foreign Relations

CO-SPONSORS.... 4 CURRENT COSPONSORS --

May 19, 88 Referred to Senate Committee on Foreign Relations.

COS

CO-SPONSORS..... 4 CURRENT COSPONSORS --

AS INTRODUCED... Nunn, Warner, Mitchell (ME).

Jun 22, 88 Boren.

BD

BILL DIGEST..... May 19, 88. War Powers Resolution

The Imperial Congress
___

Peter W. Rodman

IN MODERN history, most challenges to international stability have arisen from the emergence of an ambitious new power launching an assault on the global balance. In the 1970s, we saw something unusual: instability resulting from the self-imposed paralysis and withdrawal of a major country from its role as keeper of the global balance. Shrewd observers noted the danger at the time (see box). The novel destabilizing factor of the 1970s was less the increase in Soviet power (which was real enough, but not new) than the political and institutional crisis within the United States because of Vietnam and Watergate.

One should always be wary of trying to psychoanalyze an entire nation. Nevertheless the Vietnam trauma in the United States was real; it was manifest in the more obstreperous and divisive behavior of our institutions (the press, the Congress), in dissident social and cultural attitudes, and in a public discourse dominated by hostility to defense spending, to presidential authority, and to American engagement in foreign conflicts. Presidents were beleaguered and on the defensive throughout most of the period.

The final failure in Indochina in 1975 set the seal on the new national condition, guaranteeing that for a long time to come the American people would be fearful of overseas commitments. As Earl Ravenal pointed out in a brilliant article in *Foreign Affairs* in July 1975:

Peter W. Rodman is director of the policy planning staff of the State Department. The views expressed here are his own, and do not necessarily express those of the U.S. government.

[It] is not Vietnam directly that will inhibit American responses in the future. It is the structural similarity of future challenges, as perceived by the American people and their representatives, that will be likely to evoke the same responses or obstructions, hence the same ultimately effective constraints on American power. There is no reason to think that, after Vietnam, these factors will cease to operate. The reliability of the American response is the first casualty of Vietnam, and particularly of the end game there.

Thus the most important domino to fall in 1975 was the American political process and its support for a vigorous policy of containment. How did we reach this point? And where do we stand ten years later?

The Origins of the Conflict

THE PARALYSIS of American power in the 1970s resulted from the institutional gridlock of executive-congressional relations. This was not a new phenomenon in our history.

Our Constitution clearly granted relevant powers to both Congress and the executive, and it did little to fix the boundaries or clarify the interaction of those concurrent powers. The framers left it to posterity to work out solutions by trial and error, habit and custom, and political competition. In the words of Edward S. Corwin, the Constitution was "an invitation to struggle for the privilege of directing American foreign policy."

The Founding Fathers themselves probably took it for granted that the dominant role in foreign affairs and national security was inherent in the executive power. John Marshall spoke

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The National Interest-Fall 1985

of the president as "the sole organ of the nation
in its external relations, and its sole repre
sentative with foreign nations." A recurring
theme in *The Federalist* is the critical importance
of "secrecy and despatch" in the conduct of
foreign policy, and thus the need to allow the
executive discretion to deal with rapidly unfold-
ing events. Some brilliant research in the 1970s
by Abraham D. Sofaer reveals that our earliest
presidents—themselves the framers of the Con-
stitution—construed the power of the com-
mander-in-chief exuberantly, attempting mili-
tary expeditions and operations (including
covert ones) without declarations of war and
sometimes without full disclosure to the Con-
gress.

Nevertheless, the history of executive-
congressional relations supports the notion of a
recurring struggle for dominance. We have had
strong presidents in some periods and an ascen-
dant Congress in other periods. Assertive pres-
idencies, indeed, have often provoked a reac-
tion. In the early part of this century, the
overseas exertions of Teddy Roosevelt and
Woodrow Wilson were followed by a genera-
tion of congressional preponderance in foreign
affairs, exemplified by the defeat of the League
of Nations and the Neutrality Laws of the
1930s; this phase of our history ended only with
Pearl Harbor. Then, three decades of a strong
postwar domestic consensus on U.S. global
leadership ended when Vietnam (and Water-
gate) provoked a congressional reaction under
whose burdens we still labor.

Thus the phenomenon has a cyclical qual-
ity about it, with major cataclysms (such as
Pearl Harbor and Vietnam) causing major
shifts, as dramatic events provide the politically
more compelling arguments to one side or the
other. It is clear, as well, that Congress has
always played a significant role, even in periods
of presidential assertiveness. Any reader of
Dean Acheson's memoirs of the Truman Doc-
trine, Marshall Plan, North Atlantic Treaty,
and Korean war will be reminded of Congress's
power even in what is now fondly regarded as
the golden age of American world leadership.

And much clearly depends on the skill of
individual presidents. The Korean war, coming
on the heels of the "loss" of China, indeed

Systematically Negative

THE WORLD is in turbulence as
never before. . . .

This instability derives from what seems,
to some, a new and unexpected evolution of
the Soviet Union. I mean not only a renewal
of its militancy throughout the world but
particularly the impressive expansion of its
military power. This is true, but not at all
new. Russia has been pursuing this path
toward superpower status on a world scale—
that is, on the scale of the United States—for
thirty years. Perhaps it is the sudden aware-
ness that it has now arrived there that explains
the instability of which I was speaking.

Nevertheless, this instability might well
be thought to originate much more in the
American crisis caused by the defeat in Viet-
nam and the incredible Watergate affair. The
credibility of the United States throughout the
world has suffered a serious blow. Above all,
the American people's loss of confidence in its
leaders, embodied every day in the systemat-
ically negative positions of the Congress in
Washington, have led to a sort of paralysis of
power. . . .

Both of these—Soviet power and the
American crisis—are true, and spectacular.

Maurice Couve de
Murville, in the French
National Assembly, May
6, 1976

caused powerful political tremors that shook the
presidency. But the political consensus still
supported a strong foreign policy, and skillful
presidents maintained executive primacy for
nearly two decades more. It took a grossly
mismanaged war and a self-inflicted political
disaster to upset the balance.

THERE IS little comfort to be drawn,
however, from the fact that the
more recent problem has historical antecedents.
The lesson of this century is that periods of a
significant American role in the world tend to
coincide with a strong presidency, and that
congressional ascendancy has almost always had

The Imperial Congress

27

the implication of isolationism. A strong Con-
gress can block or constrain; it cannot impose a
coherent or vigorous foreign policy of its own.
And there are unique circumstances today that
are cause for profound concern.

First of all, in earlier times of congressional ascendancy, the United States was not a great power with international responsibilities. The flexibility of our constitutional system has been one of its virtues—its ability to adapt to historical necessity. But what is our historical necessity today? In the 1930s, Britain kept the tyrants at bay while we were immobilized by self-imposed restraints. Today, what other democracy is capable of maintaining the global balance of power if we hobble ourselves by severe limits on national action?

Second, Vietnam and Watergate left a leg-
acy of novel restrictions on presidential power
that are now embedded in legislation and ex-
ceedingly difficult, so far, to undo. In the late
1970s, the American mood began to change:
public and congressional support for defense
began to revive during the Ford administration;
President Reagan has shown that a strong and
skillful president can regain some mastery over
the political process; the response to the
Grenada mission in 1983 showed renascent
public support for vigorous military action, at
least in the limited class of cases that would
permit such quick victories. Yet the
Vietnam/Watergate restraints on presidential
flexibility remain in place—an artificial institu-
tional drag on the next swinging-back of the
pendulum.

Third, the Vietnam/Watergate cultural
revolution has done lasting damage to the Con-
gress itself. The structure of authority *within*
the Congress broke down, as a wave of "reform"
took away the power of committee chairmen,
weakened the leadership, and bred a prolifera-
tion of semi-autonomous subcommittees. This
coincided with another wave of "reform" in the
Democratic Party that weakened party disci-
pline. All this coincided with a vast expansion
of congressional staffs, which further armed the
Congress to do battle with the executive branch
and strengthened the autonomy of individual
legislators, committees, and subcommittees.
The system is now weaker in its ability to

withstand assaults by highly motivated interest
groups, whether ethnic or ideological.

This diffusion of power within the more
powerful Congress means that a president has a
hard time negotiating with the Congress even
when he is willing to compromise: the congres-
sional leadership cannot always deliver the
troops, as President Ford found when wrestling
with the Congress over the Turkish embargo
between 1974 and 1976. Sometimes the leader-
ship cannot produce a congressional consensus
or even a decision.

Even worse is the occasional inability of
Congress to keep the bargains it has struck. The
Lebanon War Powers compromise of
September-October 1983 is one example (dis-
cussed further below). Even more striking was
the 1964 Tonkin Gulf Resolution, which autho-
rized President Johnson to use force in Viet-
nam. Senator Arthur Vandenburg, the cham-
pion of post-war bipartisanship, once said that
Congress had to be in on the takeoffs if it was to
be in on the crash landings. President Johnson,
after his Vietnam experience, commented rue-
fully to Eugene Rostow that he had "failed to
reckon with one thing: the parachute. I got
them on the takeoff, but a lot of them bailed out
before the end of the flight."

More broadly, the 1970s saw the new phe-
nomenon of liberal isolationism. It was the
liberals who had led the fight for international-
ism and military preparedness after both world
wars, and their desertion of their own tradition
in the 1970s shifted the center of gravity of
American politics. Conservatives took up much
of the slack, particularly in support of a strong
defense; American conservatives nonetheless
come out of an isolationist, not a geopolitical,
tradition, and are occasionally still ambivalent
about foreign intervention and foreign aid.
Strong presidents can rally the silent majority,
but it is not easy to do so on a sustained basis—
to fight the daily congressional battles in the
face of entrenched opposition from the intelli-
gentsia and the elite media. The contemporary
debate over Central America shows both the
possibilities for strong presidential leadership
and the enormous political obstacles in the way
of an effective policy.

Beneath all this is the much-noted genera-

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The National Interest—Fall 1985

tional change. Even among the young professionals—the best educated of the new generation—a romantic escapism is still abroad in the land: an abhorrence of force, a lack of emotional commitment to NATO, and little geopolitical sense of such basic elements of national interest as the Persian Gulf. The 1984 campaign showed that McGovernism is not dead. It was repudiated then, but to a great extent the pivotal element in the long-term health of a democratic polity is the orientation of the party of the left—whether Labour in Britain, the SPD in West Germany, the Socialists of Spain, Italy, and Portugal, or the American Democratic Party. Our Democratic Party still includes important internationalist constituencies, but the direction in which the party will evolve remains uncertain.

THUS the procedural wrangle between Congress and the executive is really a substantive struggle between two philosophies of American foreign policy. To be sure, there are conservative pressures in the Congress as well—they assaulted Jimmy Carter fiercely over the SALT II and Panama Canal treaties. But strong presidents in this era will find the Congress an opposition force challenging them, for the most part, from the left.

What all of this amounts to is a rebellion against an active foreign policy of containment and world leadership. The rebellion truly deserves the label "isolationist." Its adherents will deny it, pointing out their support for humanitarian endeavors and economic interdependence. But these were features of our isolationist period in the 1920s and 1930s, from Herbert Hoover's relief efforts after World War I to battles over free trade and protectionism in the era of Cordell Hull. The mark of American isolationism today—as it was in the 1920s and 1930s—is precisely its shunning of considerations of security and power and its evasion of responsibility for helping maintain the global balance.

The legislative legacy of Vietnam and Watergate is thus nothing less than an elaborate structure of constraints on presidential action to affect and maintain the balance of power: the use of force; intelligence activities and covert

operations: the ability to keep secrets; arms sales; security assistance; and even economic assistance, which was tied more and more to humanitarian rather than political objectives. Many key instruments of an effective national security policy are now burdened by legislative limits, denying the president flexibility in responding to new challenges in a turbulent world. Control over the instruments of policy has given Congress the ability—and also the temptation—to micro-manage diplomatic tactics.

## The Magnitude of the Problem

PRESIDENT REAGAN has spoken of over 100 important restrictions that have been imposed in the last fifteen years or so. Some of the broad categories are:

- the restrictions on military action and security assistance in support of allies in Indochina from 1970-1975, which played a crucial role in undermining resistance to communist takeover;

- the Tunney and Clark amendments on Angola (1975-1976), which prohibited U.S. efforts to block the Soviet-Cuban intervention in the Angolan civil war;

- the embargo on military aid to Turkey after the 1974 Cyprus crisis, which was relaxed by 1978 but which looms as a recurring complication for relations with both Greece and Turkey and our efforts to help resolve the Cyprus problem;

- unprecedented controls over intelligence activities, the product of the assault on our intelligence agencies by congressional investigating committees;

- Freedom of Information Act amendments, enacted over President Ford's veto in 1974, that took away the executive's exclusive power to determine what documents could be kept classified—an aspect of the congressional and media campaign against the government's right to protect defense and diplomatic secrets;

- limitations on U.S. military personnel abroad, such as ceilings on the number of

The Imperial Congress

29

U.S. Marines in Lebanon in 1982-1984 and on U.S. military trainers in El Salvador:

- the War Powers Resolution of 1973, requiring, inter alia, congressional authorization for the deployment of U.S. troops in hostilities abroad beyond 60 days;

- a variety of restrictions based on human rights considerations, which limit or attach conditions to economic and security assistance to countries said to violate human rights, and which deny them police training. These have often been used to limit or ban aid to friends facing real security problems. As countries such as El Salvador return to democracy, and as cooperation against terrorism becomes a major U.S. objective, reversing the ban on police training has proven to be an enormously laborious process;

- the Symington-Glenn and Nuclear Non-Proliferation Act regime of controls on the transfer of nuclear energy materials, reinforced by restrictions on aid to countries that fail to comply with safeguards. At various times, these restrictions have complicated relations with India, Pakistan, Brazil, Argentina, China, Egypt, and others;

- institutional and procedural changes that deprive the president of flexibility in trade disputes, making blunt American countermeasures nearly automatic regardless of foreign policy or other strategic considerations;

- limits on the president's power to impose economic sanctions or controls for foreign policy purposes;

- restrictions on arms exports, which give Congress the power to obstruct, or attach conditions to, important transactions;

- the tougher requirements for reprogramming of funds, by which congressional committees can deny the president flexibility in the use of authorized or appropriated funds to support ongoing operations or programs;

- growing use of earmarking of aid funds to compel the expenditure of fixed amounts for countries favored by Congress, while at the same time squeezing out funds for other recipients by constricting the total of appropriations;

- and in addition to the above, there are the

constraints imposed by conservatives for example, the Jackson-Vanik linkage of most-favored-nation treatment to Soviet emigration, and restrictions on aid to Mozambique or on land reform in El Salvador.

These broad categories embrace hundreds of statutory provisions (though many duplicate each other), as well as reporting requirements and waivable restrictions. Some are presidential commitments exacted by Congress as the price of support for presidential initiatives. And the scope of legislative micro-management is now enormous. The 1964 edition of the congressional publication Legislation on Foreign Relations was a single volume of about 650 pages. Twenty years later, it had grown into three volumes of more than 1,000 pages each.

## The War Powers Resolution

ALEXANDER HAMILTON wrote in *The Federalist* No. 23 that "the authorities essential to the common defense . . . ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them." Yet the War Powers Resolution of 1973 is an attempt to do just that: to spell out detailed procedures for contingencies that will never, in reality, lend themselves to such advance specificity. During the Constitutional Convention a delegate proposed a ceiling on the peacetime army of the United States of 2,000 to 3,000 men. This led General Washington, who was in the chair, to whisper a wisecrack to a colleague that, in that case, the Constitution had better also specify that no foreign enemy should invade the United States with more than 3,000 troops.

The War Powers Resolution is the centerpiece of the Vietnam/Watergate challenge to presidential authority, and thus has great symbolic as well as practical importance. It was enacted over President Nixon's veto in November 1973, when Nixon was considerably weakened by the Watergate scandal. The Congress, in essence, seized an opportunity to change the balance that had prevailed in the modern period at least since Franklin Roosevelt.

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*The National Interest—Fall 1985*

1. It declared, in Section 2(c), that the president's independent powers to introduce U.S. armed forces into hostilities extended only to "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces."

The fact of Nixon's veto, however, deprived the resolution of some of the legitimacy that its architects sought: they had hoped that a "compact" freely agreed upon between a president and Congress would have lasting legal, political, and moral effect. Nixon, however, saw it as unconstitutional; all succeeding administrations have expressed doubts about its constitutionality. (Nor do the president and Congress have the power to make unconstitutional laws even if they both agree.)

The supreme irony of the War Powers Resolution is that it was based on a myth. It was purportedly designed to prevent a repetition of the Vietnam involvement; yet the Vietnam involvement would probably have met the essential criteria of the resolution had it been in effect at the time. President Johnson wanted to avoid Truman's mistake of going to war without congressional authorization; that was the whole point of the Tonkin Gulf Resolution. Retrospectively, critics of the war put all the blame on executive overreaching, conveniently forgetting that the Vietnam intervention had congressional and public support when it happened. In

this sense, too, the War Powers Resolution reflected more the weakness of the presidency as of late 1973 than a constitutional necessity.

The practical problems with the War Powers Resolution vary from the sublime to the ridiculous. At the latter end of the spectrum are President Ford's attempts to comply with its consultation provisions during crises in 1975 and 1976 (see box next page).

The recent experience in Lebanon in 1983-1984 exemplifies the more serious problem. As the Lebanese crisis unfolded, the presence of U.S. Marines in Beirut elicited almost continual congressional challenges, which undercut the political effectiveness of our military presence. Early in 1983, the Lebanon Emergency Assistance Act prohibited expansion of the number or role of the Marines in Lebanon, thus locking us into a fixed, minimal—and less and less appropriate—deployment even as circumstances in Lebanon were changing dramatically. In September and October 1983, an accord was reached by which Congress purported to authorize a continued Marine presence in Beirut for eighteen months; in return,

The Imperial Congress 31

A Note on the Door

WHEN the evacuation of DaNang was forced upon us during the Congress's Easter recess, not one of the key bipartisan leaders of the Congress was in Washington.

Without mentioning names, here is where we found the leaders of Congress: two were in Mexico, three were in Greece, one was in the Middle East, one was in Europe, and two were in the People's Republic of China. The rest we found in twelve widely scattered states of the Union.

This, one might say, is an unfair example, since the Congress was in recess. But it must be remembered that critical world events, especially military operations, seldom wait for the Congress to meet. In fact, most of what goes on in the world happens in the middle of the night, Washington time.

On June 18, 1976, we began the first evacuation of American citizens from the civil war in Lebanon. The Congress was not in recess, but it had adjourned for the day.

As telephone calls were made, we discovered, among other things, that one member of Congress had an unlisted number which his press secretary refused to divulge. After trying and failing to reach another member of Congress, we were told by his assistant that the congressman did not need to be reached.

We tried so hard to reach a third member of Congress that our resourceful White House operators had the local police leave a note on the congressman's beach cottage door: "Please call the White House."

Gerald R. Ford, lecture,

April 11, 1977

the legislators exacted a host of assurances by the executive branch of what it would not do, further draining the Marine presence of its deterrent impact. The bombing of the Marine barracks occurred shortly afterward. That event—regurgitated by the Long Commission report in December—led to renewed rumblings in the Congress at the end of 1983 that suggested great restlessness about keeping its part of the October bargain. This, in turn, convinced the Syrians that the United States was "short of breath" (as Syrian Foreign Minister Khaddam told his Lebanese counterpart), thus undermining the delicate diplomatic efforts in December and January that sought a negotiated solution.

After Lebanon, Senator Howard Baker posed the issue bluntly on the floor of the Senate (on March 6, 1984):

> [T]he United States with its responsibilities and obligations as a superpower is likely to face with increasing frequency situations of ambiguity and imprecision where neither diplomatic efforts nor the exertion of force can promise a certain outcome. It will require the nicest of

judgments in our determination of whether and how the United States should be involved. . . .

Perhaps in addressing these questions we should review whether the War Powers Resolution, as it now stands, remains an appropriate mechanism for the interaction between the executive and the legislative branches of Government. I am personally convinced that we cannot continue to begin each military involvement abroad with a prolonged tedious and divisive negotiation between the executive and the legislative branches of Government. The world and its many challenges to our interests simply do not allow us that luxury.

Of course, it was not the specific provisions of the War Powers Resolution that drove us out of Lebanon. The mounting political challenge at home led President Reagan in February 1984 to try the risky venture of rearranging our force posture—removing the Marines but broadening the rules of engagement for our naval and naval air forces; this was then overtaken by the rush of events on the ground. Such an outcome might have occurred even without a War Powers Resolution. And in other cases since 1973, from

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Mayagüez to Grenada—even with the War Powers Resolution—presidents managed to keep the initiative, undertaking limited military operations and reporting to Congress afterward. In these cases, practical necessity compelled successive presidents to act in the national interest, and the War Powers Resolution did not really impede their action. Likewise the initial dispatch of Marines to Beirut in 1982 was not limited (or even deemed to be covered) by the resolution's provisions on deployment of forces into hostilities.

THUS, the political reality has been that the president retains the initiative in military deployments, and he retains much freedom to succeed or fail on his own responsibility. Operations that succeeded usually encountered no serious War Powers complaints from the Congress; operations that ran into difficulties encountered huge political problems even when "authorized" by agreed-upon procedures.

At the same time, this limited "window" of presidential flexibility offers few grounds for optimism. For the institutional impulse of Congress is to attempt to narrow further the freedom of the president to take the initiative. Success commands support, but the trend has been to allow presidents less and less room to succeed. And whatever the legalities, the new legislative regime has clearly restructured the political environment.

Moreover, the restraints on presidential action in the War Powers field do not come only from the Congress. Some of our military analysts have drawn from our Vietnam experience the lesson that we should never undertake military action without an assurance of public support. In reality, there is no such thing as assurance, in advance, of lasting public support; if we make this a prerequisite for the use of force, we are paralyzing ourselves. Grenada shows that a bold president (and an effective military plan) can create the public support needed, even if fifty opinion polls beforehand would have shown this to be impossible. The real lesson of Vietnam is that protracted, inconclusive military engagements will fritter away whatever public support they start out with.

Unfortunately, incrementalism is deeply ingrained into our national war-fighting style. "Using only the amount of force proportional to the need" is the common concept, derived perhaps from our legal tradition as well as from bureaucratic caution; academic constructs from bargaining theory also gave rise to notions of gradual escalation and demonstrative use of force to give evidence of one's resolve, intention, or commitment. Yet the bias toward "carefully limited" applications of force can be an invitation to protracted war (Vietnam) or fiasco (the Bay of Pigs; the Iran rescue raid). Playing it safe is often the most certain road to disaster. Our capacity to act effectively within the "window" that is open to the president is one of the most crucial aspects of this whole problem. It behooves the executive branch to have its own house in order, with respect to both doctrine and operational capability.

The War Powers Resolution, with its 60-day limitations, could be viewed, with some irony, as an antidote to incrementalism—putting a premium on quick, overwhelming, decisive action in crises. But Hamilton was probably right: the "variety of exigencies" can never be foreseen. There are bound to be situations in which gradual, careful applications of limited force make sense. Here the War Powers Resolution, and its symbolic elevation of Congress's role, are bound to be a political constraint on the president's ability to succeed.

## Prospects

THERE HAVE BEEN many proposals for improving communications between the two branches of government on War Powers issues. Some have suggested the creation of a joint committee on national security, comprising the top leaders of both parties and key committees. The Carter administration suggested that each house designate in advance a single person as the initial point of contact in a crisis; he would activate a small ad hoc group of key members. Some suggest ways of strengthening the executive branch's management of congressional relations. Others hope that the Congress, in its own interest, will

The Imperial Congress

33

restore its own internal discipline and cohesion.

No one can possibly object to improving communications between the two branches. No procedural gimmicks, however, will change the fundamental problem. There remains a basic clash of philosophy, reflected in the battery of restrictions now embedded in the law across the whole range of foreign policy-making. These restrictions are the anachronistic legacy of a different time and different political circumstances. A national consensus seems to be reforming in support of a strong foreign policy; the election results in 1980 and 1984 must tell us something. Yet entrenched institutional interests will delay and distort the process. The lesson of recent experience is that strong presidential leadership can still make an enormous difference in specific cases. One hopes that it will not require a new historical cataclysm to bring about a more decisive redressing of the balance.

Of the long list of restrictions catalogued above, few are dramatic issues over which the president can easily rally popular sentiment. There have been moments when the Congress was palpably uncomfortable being saddled with responsibility for difficult decisions and when its own internal divisions put coherent action out of reach; yet there was no evident willingness to turn the matter over to the discretion of the president. Even the Supreme Court's *Chadha* decision of 1983, which declared the legislative veto unconstitutional, did not alter political realities; the Congress retains the political clout to block major arms sales, for example. It will not easily cede powers it has tasted.

In new political circumstances, individual restrictions here and there may drop away (like the Turkish embargo; the Clark amendment; and the conditions attached to aid for El Salvador, eased when José Napoleon Duarte was elected president). Occasionally, new and less restrictive laws will be passed, superseding the old (as funding was obtained this spring for the Nicaraguans fighting the Sandinista dictatorship). The proliferation of committees monitoring intelligence activities was rationalized, a few years ago, into two Select Committees. The emergence of a new foreign policy consensus may prompt more congressional support of

presidential policies; thus not every remaining procedural requirement will always be an obstacle.

The prospect, however, is for trench warfare—slow inching progress, exhausting battles over a broad front—testing presidential stamina, skill, imagination, and courage over the long term. As before in our history, the will of the American people and the compulsion of events will decide where the new balance is struck.

The final irony is that there may be more presidential flexibility left in the War Powers field than in other fields of foreign policy now so heavily encrusted with legislative requirements. Recent years have seen an intellectual backlash against the resolution; Howard Baker is only one of many to call attention to its unwisdom; its defenders are on the defensive. The contemporary debate over the use of force suggests, at the very least, that the War Powers issue is still open, in two senses of that word: the country seems suspended, gradually putting the Vietnam trauma behind it though not yet certain of its attitude to the use of American power; and in a dramatic crisis, the president has the opportunity to rally support that can have an immediate impact on congressional conduct.

Grenada showed what is possible. The growing menace of international terrorism—and the growing consensus that it must be combatted—may well prove to be the motive force that swings the pendulum decisively back toward support for presidential authority.

**T**HE REAL ISSUE is, of course, far more than a question of institutional prerogative. Tocqueville raised the profound question of whether democracies in general—and the American democracy in particular—were capable of the wise conception and consistent execution needed in the conduct of foreign affairs. In the recent period, the Congress has sought a greater role in American foreign policy; but what has it gained if American foreign policy, in the process, is rendered less and less effectual? Collegial governance and participatory policy-making may satisfy abstract theories of ideal democracy; but what

34

does it mean for the future of democracy world-
wide if its main defender is hobbled by proce-
dures constraining effective action?

Freedom has many powerful enemies who
are, by definition, unhampered by the internal
restraints of a free society. The United States
has faced up to such challenges in the past—
under many strong presidents—thus proving
that there is no inherent reason why a free
society must be doomed to impotence. Experi-
ence in this century shows there is no inconsis-
tency between a healthy democracy and a
strong foreign policy. Surely there is room, as
George Shultz has put it, for "accountability
without paralysis." Surely our constitutional
system is resilient enough to respond to today's
historical necessity—with Congress sharing in
the setting of broad policies, but allowing the
president flexibility in defending and advancing
the nation's interests.

The conventional wisdom that democracies
are slow to awaken but vigorous in responding
to a clear danger is no longer as comforting as it
may once have been. In an age of nuclear

stalemate, the kinds of immediate dangers we
face are precisely the low-level and gray-area
challenges which individually seem less than
crucial but cumulatively can represent a signif-
icant shift in the global balance of power.

For if there is a cycle in our own history,
there is also a cycle in international affairs.
Today, the United States no longer enjoys the
overwhelming predominance it enjoyed in the
1940s. We are still the strongest, but there are
many other centers of power now, even in the
non-communist world. We have less margin for
error than we used to have.

The art of foreign policy is to shape events,
not just react to them. The idealism of the
American people still compels us to strive to
shape the future according to our purposes, not
just manage our day-to-day problems. In our
present circumstances, there is a premium as
never before on coherence, discipline, consist-
ency, and staying power in our foreign policy.
These are precisely the qualities now at stake in
the struggle between the president and Con-
gress. We have yet to prove Tocqueville wrong.

The Imperial Congress

35

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November 7, 1988

Dr. Henry Kissinger
Center for Strategic and
International Studies
1800 K Street, N.W.
Washington, D.C. 20006

NOV 14 1988

Dear Henry:

My colleague, BOL Turner, prepared the enclosed report
on Restoring the "Rule of Law" with respect to war powers.
I thought you and your associates might find this of
interest.

Please let me know when we can talk again or get
together to review our current problems.

Warmest regards.

MIL:mk
Encl.

cc. Robert F. Turner

P.S. You will note that my Partner, Dave Hiller, who has
met with you a number of times, has now been made
General Counsel of the Chicago Tribune.

MIL

[Encl.]

TURNER—EXECUTIVE SUMMARY

In the years which followed, both houses of Congress reflected the strong public support for the conflict by time and again appropriating billions of dollars by overwhelming majorities. When an effort was made in the Senate in 1966 to repeal the statutory authorization for the conflict, it was overwhelmingly rejected by a vote of 92 to 5. During that debate several Senate leaders observed that a formal "declaration of war" was both inappropriate and unnecessary, and Senator Javits—who later led the Senate effort to enact a War Powers Resolution—asserted "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy." The following year, when the American Bar Association issued a lengthy legal brief affirming the legality of the President's conduct of hostilities in Vietnam pursuant to the Gulf of Tonkin Resolution, Senator Javits introduced a lengthy excerpt from the brief in the Congressional Record and said:

> In my own thinking there can no longer be any doubt about the legality of our assistance to the people of South Vietnam in view of the report to be distributed today by the American Bar Association . . . . I have never doubted the lawfulness of the U.S. assistance to the Republic of Vietnam. Today, it is my privilege to present to the Senate and the American people a document which, I believe, supports this proposition beyond any reasonable doubt.

In November 1967 this Committee issued a report which concluded:

> The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to Formosa, the Middle East, and the Gulf of Tonkin are a proper method of granting authority . . . .

This view was in keeping with decisions of the U.S. Supreme Court dating back to the year 1800.

In the months and years which followed, however, American public opinion turned against the conflict in Vietnam. In order to avoid being held politically accountable, members of Congress began pointing to the fact that Congress had never "declared war"; and with the election of a president from the minority party in 1968 it became even easier for the congressional majority to denounce the conflict as "Nixon's War." This effort to avoid accountability was not limited to Democrats. A number of Republicans, who had for years been strong supporters of the conflict, joined in assuring their constituents that they would promptly act to prevent future "Imperial Presidents" from dragging the nation

iv

TURNER—EXECUTIVE SUMMARY

kicking and screaming into unpopular foreign wars against the wishes of Congress. Representative Paul Findley, of Illinois, was perhaps typical of this group. In stressing his opposition to the conflict, he neglected to remind his constituents that as early as 1961 he had denounced Vice President Johnson and President Kennedy (who had been perhaps the most prominent Senate supporter of South Vietnam during the 1950's), for refusing to send combat troops to South Vietnam. For example, on 23 May 1961, Representative Findley said on the House floor:

> U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay. No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the too-little, too-late policies which invite aggression.

This is not to say that the Congress was completely devoid of courage during this time. The late Senator Sam Ervin, for example, who was widely regarded as the foremost constitutional scholar in this body and served as chairman of its Judiciary Committee, asserted in 1970:

> I am certain that when Congress passed the Gulf of Tonkin joint resolution, it was aware of what authority it was granting to the President. I contend that the Gulf of Tonkin joint resolution is clearly a declaration of war.

While enacting a series of statutory constraints which ultimately guaranteed a North Vietnamese victory and delivered the people of non-communist Indochina to a Stalinist tyranny and a bloodbath which may have taken more lives in two years of "peace" than were killed on all sides during thirteen years of combat, the Congress enacted the War Powers Resolution over a presidential veto in November 1973. Ironically, by its own terms, it recognizes the power of the Commander in Chief to commit United States armed forces to foreign hostilities pursuant to "specific statutory authorization." In other words, by its own terms it clearly would have had absolutely no effect in preventing the tragedy we know as "Vietnam."

In the last fifteen years, the congressional attitude towards the Resolution's implementation has been characterized above all by a desire to avoid being held accountable for any policy failures. President Ford's *Mayaguez* rescue, which violated both the existing Cooper-Church statutory prohibitions against sending U.S. combat forces to Cambodia and several provisions of the War Powers Resolution, was greeted by this

v

TURNER—EXECUTIVE SUMMARY

Committee with a *unanimous* resolution of approval. When President Carter tried a similar effort in Iran, the Chairman and Ranking Minority member of the Committee denounced him for violating the War Powers Resolution. From my perspective the constitutional issues were the same—the difference was that President Ford's rescue effort was perceived by the voting public as a success, while President Carter's effort failed.

This same element of political expediency characterized the reaction of many congressional leaders both before and after the students returned from Grenada and the polls showed better than 90 per cent support for the operation in the United States and also on Grenada. The Speaker of the House, who had only hours earlier characterized the operation as "gunboat diplomacy," announced that he had "reconsidered" the matter and felt President Reagan's actions were "justified." A special hearing called in the House Foreign Affairs Committee to examine the legal implications of the operation was quietly "postponed"—and has yet to be rescheduled.

The resolution has proven to be a very safe way for members of Congress to avoid accountability during a dangerous national crisis—but this has not been without cost to the nation. In Lebanon, for example, shortly after a bitter and highly partisan Senate debate, our intelligence people reportedly intercepted a message from Islamic terrorists telling their forces: "If we kill 15 more Marines, the rest will leave." Days after this report was published, a terrorist attack killed 241 Marines. From my perspective, Congress deserves a great deal of the responsibility for that attack.

II

Part two of my statement presents a theoretical discussion of constitutional separation of national powers. It discusses the tremendous influence of such separation of powers theorists as Locke, Montesquieu, and Blackstone on the Founding Fathers—and notes that each of them argued that legislative bodies lacked the *competence* to deal with war and foreign affairs. Such matters could not be effectively regulated by antecedent "laws," and they required for their successful conduct the qualities of unity of plan, secrecy, and speed and dispatch—all of which were attributes of Executive power.

Scholars who seek simply to "count up" the enumerated powers of Congress and the President—and conclude that the Constitution is "an invitation to struggle"—tend to overlook the first section of article two of the Constitution, vesting "the executive power" in the President. As the late Professor Quincy Wright—who served as President of the American Political Science Association and the American Society of International Law—observed in his 1922 classic study, *The Control of American Foreign Relations*: "when the

vi

But political courage was in short supply as opposition to the war intensified. Instead, Members of Congress assured their constituents that Congress certainly deserved no responsibility for "Nixon's War," and that they would act promptly to guarantee that no future "Imperial President" could drag the nation kicking and screaming into an unpopular foreign war against the wishes of Congress.

## The 1973 War Powers Resolution

After prohibiting further U.S. combat activity in Indochina with the Cooper-Church Amendment,⁵² Congress enacted the 1973 War Powers Resolution—over President Nixon's veto. As Senator Javits—who seven years earlier had concluded: "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy"⁵³—explained in the Senate:

> The War Powers Act would assure that any future decision to commit the United States to any warmaking must be shared in by the Congress to be lawful. ... By enumerating the war powers of Congress so explicitly and extensively in article I, section 8, the framers of the Constitution took special care to assure the Congress of a concurrent role in any measures that would commit the Nation to war. Modern practice, culminating in the Vietnam war ... has upset the balance of the Constitution in this respect.⁵⁴

Put simply, the War Powers Resolution was essentially a fraud (although many who voted for it no doubt did so in innocence). Congress had played a full role in getting the United States into the Vietnam conflict—and, indeed, some of the strongest supporters of the War Powers Resolution had earlier been sharp critics of the Executive for not sending combat troops earlier and escalating the war quicker.⁵⁵ Its primary purpose was to keep Congress from being held politically accountable by an angry electorate—and in the process to pin all of the blame on an unpopular president of the minority party. And as I will explain later, it had the additional characteristic of being flagrantly unconstitutional.

⁵² Actually there were a series of such amendments.

⁵³ 112 CONG. REC. 4374 (1966).

⁵⁴ 119 CONG. REC. 1394 (1973).

⁵⁵ See, e.g., *supra* note 31 and accompanying text.

19

Implementation of the War Powers Resolution

Mr. Chairman, five years ago I wrote a book about the War Powers Resolution which looked in some detail at about a dozen incidents which might arguably have come under its purview. This is not the time to review all of those cases. But I have detected an alarming theme in the way many members of Congress have reacted to these situations—and this might be an appropriate time to register my concern.

Mayaguez Rescue

I will begin<sup>56</sup> with the May 1975 rescue of the crew of the S.S. Mayaguez from their Cambodian captors. A few years have passed, but I'm sure most of you recall the incident. I was working in the Senate at the time, and it was clear to me that the Ford Administration did not really "consult" with Congress. A handful of leaders—my boss among them—were "informed" or "notified" of the rescue operation after it had already been set in motion and U.S. combat forces had entered Cambodian territory. Shots had already been fired before these "notifications" took place.<sup>57</sup> Trying to put the best light on it, Senate Republican Leader Hugh Scott asserted: "We were informed. We were alerted. We were advised. We were notified. We were telephoned. It was discussed with us. I don't know whether that's consultation or not. We were advised that certain actions would be taken using the minimum force necessary."<sup>58</sup> This hardly satisfies my sense of what real "consultation" ought to be—and even this "notification" did not occur until after the "introduction" of U.S. forces into the danger zone.

Furthermore, section 2(c) of the War Powers Resolution makes no provision for the President to rescue endangered American citizens in the absence of a declaration of war

56 I am tempted to first address the evacuation of Indochina—in part because I was one of the evacuees who would have been abandoned when Congress adjourned its conference committee had President Ford not decided to authorize the evacuation on his own authority. This was not one of the Legislative Branches more impressive performances. President Ford had gone before a joint session of Congress on 10 April to ask Congress "to clarify immediately its restrictions on the use of U.S. military forces in Southeast Asia for the limited purposes of protecting American lives by insuring their evacuation, if this should be necessary." He said "I hope that this authority will never have to be used, but if it is needed, there will be no time for congressional debate. Because of the gravity of the situation, I ask the Congress to complete action on all of these measures not later than April 19." *Quoted in R. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE* 52 (1983). Four days after the President's "deadline," the Senate finally approved a bill. The House approved a different bill shortly thereafter. After a lengthy conference, the Senate approved the report but the House decided to delay a vote until after the weekend—during which time the approach of North Vietnamese tanks forced the President to either abandon the Americans in Saigon or act on his own authority. Fortunately for those of us in Saigon at the time, he had the courage to act. The "clarification" the President has courteously requested from Congress was never approved. As Senator Eagleton later observed: "Congress fumbled the ball." *Id.* at 58.
57 *Id.* at 62.

58 *Quoted in id.*

or other statutory authority. In this, and other, respects it is clearly unconstitutional.⁵⁹
But the fact remains, President Ford clearly violated the language of the "law."

Furthermore, the Cooper-Church Amendment was still theoretically in force—although it, too, in my view was unconstitutional—prohibiting the use of appropriated funds for combat operations "in or over or from off the shores of ... Cambodia."⁶⁰

One might therefore have expected an angry Congress to take the occasion to confront the President for his "illegal" conduct. But that did not happen. Senator Mansfield rejected a reporter's characterization that the War Powers Resolution had been "to a slight extent, bent or violated," responding that "maybe he didn't have the time.⁶¹ Senator Church told the press: "From beginning to end, he had my full support." Senator Clifford Case added: "I don't want anyone saying that we liberals or doves would prevent the President from protecting American lives in a piracy attack."⁶² Ultimately, this Committee passed a resolution that said in part: "We support the President in the exercise of his constitutional powers *within the framework of the War Powers Resolution* to security the release of the ship and its men."⁶³

## Iran Rescue

Five years later, after Iranian militants had seized the American Embassy in Tehran and more than 50 hostages, a different President tried another "rescue" operation to save American lives. As in the case of the *Mayaguez*, President Carter did not "consult" with congressional leaders until the rescue forces were already on Iranian territory. The Administration stressed that it had planned on discussing the operation with Congress prior to the final stage—and apparently concluded that deploying U.S. combat forces to an isolated desert landing site in Iran did not meet the "imminent involvement in hostilities" standard of section 3—the consultation provision.

There were, of course, differences between the *Mayaguez* rescue and the attempt in Iran. Given the disorganized condition of Cambodia in May 1975, and the relative isolation of the island thought to be holding the Americans, one could argue that there was a somewhat greater need for "secrecy" in the Iran rescue. This would be a close call, and both Presidents decided not to inform Congress until the last minute. A significant

⁵⁹ See infra, note 231 & 242 and accompanying text.

⁶⁰ See infra, note 264 and accompanying text.

⁶¹ Quoted in TURNER, *supra* note 56 at 63.

⁶² *Id.*

⁶³ *Id.* (Emphasis added.)

21

difference was that in Iran there was no "Cooper-Church" law prohibiting the deployment of U.S. combat troops.

Given the similarities between the two situations, however, one might have expected the Congress to react similarly in both instances. After all, Presidents were doing their best to rescue Americans who had been seized by rather unsavory foreign groups. But whereas Senate Majority Leader Mansfield had virtually apologized for President Ford's lack of prior "consultation" during the *Mayaguez* rescue; in 1980 Majority Leader Robert Byrd said he was "furious" over the lack of prior notice.⁶⁴ This Committee didn't follow its earlier precedent of passing a supportive resolution, either; instead, the Chairman and Ranking Republican issued a joint statement *denouncing* the President for violating the War Powers Resolution.⁶⁵

### Grenada

Another illustrative example is the October 1973 Grenada rescue mission. When news first broke of the operation, the initial reaction by many in Congress—particularly members of the opposition party—was strong and hostile. House Speaker Tip O'Neill, for example, called the operation "gunboat diplomacy." Numerous references were made to a violation of the War Powers Resolution, and my colleague Professor John Norton Moore—one of the nation's foremost experts on national security law—received an urgent call asking whether he would appear on a panel before the House Foreign Affairs Committee the following week to discuss the legality of the Grenada operation. He agreed.

A few hours later, airplanes began landing at an Air Force Base in South Carolina and the evening news showed pictures of American students from Grenada kissing the ground and praising President Reagan for saving their lives.⁶⁶ About the same time, news reports began arriving from Grenada that thousands of people had turned out in the streets to cheer and thank the American soldiers for the rescue operation.⁶⁷ A call-in poll of American public opinion sponsored by the ABC News "Nightline" program received more

64 *Id.* at 73.

65 *Id.*.

66 Ward Sinclair, "Student Evacuees Return, Praising U.S. Rescue Effort," *Washington Post*, October 27, 1983, p. A1.

67 See, e.g., "Message From Grenada: 'Yankees Don't Go Home,'" *U.S. News & World Report*, Nov. 21, 1983, p. 33.

22

than 300,000 calls in one hour, indicating almost 90 percent approval of the operation.⁶⁸
A CBS poll of residents of Grenada reported even greater support.⁶⁹

Shortly thereafter, Speaker O'Neill "changed his mind." Along with many of his Democratic colleagues, he concluded after a more careful look at the facts that the operation was "justified."⁷⁰ Discussing the Speaker's change of position, the *New York Times* reported: "His switch marked what some Democrats acknowledged was 'a strategic retreat' politically. It came amid strong public support for the United States-led invasion . . . ."⁷¹

Another journalistic account asserted:

> What finally persuaded most Democrats in Congress to switch and back Reagan on the invasion of Grenada? It wasn't what lawmakers found on their visit to the island, insiders report, but an avalanche of mail from voters back home heartily endorsing the President's action. Veteran politicians had no trouble following that weather vane.⁷²

Professor Moore subsequently received a telephone call explaining that the Foreign Affairs Committee had decided to "postpone" its investigation of the legality of the Grenada operation. Nearly five years later, he had still not been called to testify on the matter.

Several things can be observed about this situation. First of all, a political environment in which senior congressional leaders denounce foreign policy initiatives first and then look at the facts is unhealthy. It would have been virtually unheard of during the years between U.S. entry into World War II and the early days of the Vietnam commitment.

More importantly, when the Grenada operation is considered along with rescue missions in Cambodia and Iran, the one common thread in the legislative response has not been high constitutional *principle* but clear political *expediency*. From a constitutional standpoint there were few obvious differences between President Ford's rescue of merchant seamen in Cambodia and President Carter's effort to rescue American diplomats in Iran. The difference is that one succeeded and was strongly supported by the American public, and the other failed and was not. When members of Congress realized that the public was behind President Reagan's Grenada mission, many seemed to abandon their

⁶⁸ "An ABC Call-In Poll Shows 90% Support Invasion of Grenada," *New York Times*, October 30, 1983, p. 22.

⁶⁹ *Washington Times*, Nov. 15, 1983, p. 2C.

⁷⁰ Hendrick Smith, "O'Neill Now Calls Grenada Invasion 'Justified' Action," *New York Times*, November 9, 1983, p. 1.

⁷¹ *Id*.

⁷² "Washington Whispers," *U.S. News & World Report*, November 14, 1983, p. 23.

23

initial concerns about insuring that the President was "obeying the law."⁷³ That, too, is unhealthy. These examples suggest that Congress has been just as *unprincipled* in dealing with the implementation of the War Powers Resolution as it was in disclaiming its actual role in authorizing the commitment of United States armed forces to Indochina in 1964.

## Lebanon

These are but three of many examples in recent years in which members of Congress have approached important national security problems in a partisan and unhelpful way. Another example that could be cited was the deployment in 1982 of a contingent of U.S. Marines to Beirut, Lebanon, as a component of a multi-national peace-keeping force. The international force was *invited* into Lebanon by the government of that country and with the approval of neighboring States and major parties to the dispute that had nearly decimated the once beautiful country. The mission was to take up positions between feuding factions—without engaging in hostilities—as a means of promoting confidence, restoring order, and encouraging negotiations among the parties. By no stretch of the imagination could it be seriously charged that, in committing the force to Lebanon, the President had deprived Congress of its constitutional authority to "declare war" against another State.

It was understood that Beirut was a city in turmoil, and that there was a significant chance that Marines would be the target of terrorist acts or even the victims of accidental injuries—which proved to be the case as one Marine was killed and three others injured when a 155-mm Israeli artillery round exploded during a clean-up operation at the airport. According to the press, this accident led you, Mr. Chairman, to charge that the Marines were clearly involved in "hostilities" so as to bring into force the War Powers Resolution.⁷⁴ Since the accidental death of the Marine resulted indirectly from an *Israeli* artillery shell, and underlying your assertion was an apparent assumption that the President was impermissibly treading upon the power of Congress to "declare war," I could not help but wonder at the time whether you were of the view that the President had without legislative authority launched a "war" against Israel by his conduct in the matter.

On the merits, however, the deployment generally received little criticism from Congress. The situation was probably summarized accurately when Senate Assistant Majority Leader Ted Stevens remarked: "I'm sure the president will get the support of the

⁷³ I would contend that the Grenada operation was conducted in compliance with applicable law. See on this subject J. MOORE, LAW AND THE GRENADA MISSION (1984).

⁷⁴ *Washington Post*, October 1, 1982.

24

Senate, but a lot of us are going to hold our breath."⁷⁵ Although often a sharp critic of President Reagan, even Senator Thomas Eagleton publicly took the position on the merits that the risk must be taken, and said "Congress undoubtedly would approve the commitment of troops as part of the multinational force."⁷⁶

However, recognizing the risks involved in the deployment and still smarting from the Vietnam experience, many members of Congress began looking for "insurance policies" in case the worst came to pass. Few wanted to criticize an effort to promote Middle East peace on the merits, but many were happy to insulate themselves from ultimate accountability by raising procedural objections to the deployment. Once again, the vehicle was the 1973 War Powers Resolution. House Foreign Affairs Committee Chairman Clement Zablocki charged in the *Washington Post* that the President's failure to invoke the War Powers Resolution was "eroding the integrity of the law" and threatened to precipitate a "constitutional crisis."⁷⁷ Neither Chairman Zablocki nor his many colleagues who joined the chorus addressed the question of what signal would be sent if, after announcing to the world that the Marines were being sent to Lebanon on a mission of peace to encourage negotiations, the President then turned around and submitted a public report to Congress announcing his expectation that the Marines would likely soon be involved in armed combat. This would hardly have been compatible with the operation's objective of reassuring the rival factions and promoting a non-violent resolution of the dispute. Indeed, having received no indications that the Marines were coming to fight on *their* side, it would not have been surprising to have nervous factions from various sides welcoming the Marines with automatic weapons fire--on the mutual assumption that *their* group must be the intended target of the "war" the American President had told Congress he was initiating.

Writing in *U.S.A. Today*, Senate Minority Whip Alan Cranston suggested that on the merits the Senate "might well authorize" the deployment of Marines if the President would tell them "exactly how and when we proposed to extricate them."⁷⁸ Indeed, it became increasingly apparent that a request by the President for formal legislative endorsement of the mission would be met with demands for detailed micromanagement of the operation by legislative constraints. Members not only wanted to know on what day the Marines would be removed, but whether additional Marines could be deployed, what rules of engagement would authorize them to defend themselves, whether they were permitted to carry loaded weapons on patrol, and the like.

75 *Washington Post*, October 1, 1982.

76 *New York Times*, November 17, 1982.

77 *Washington Post*, October 3, 1982.

78 *U.S. A. Today*, October 22, 1982, p. 8.

25

The acrimonious and partisan public debate which followed—ostensibly motivated not by opposition to the peace mission on the merits, but by allegations that Congress was protecting its constitutional power to "declare war" against another State (and during the entire debate no member of Congress actually *advocated* declaring war, or even indicated against what State they were being deprived of their right to approve such a declaration)—was followed with interest abroad by America's friends and foes alike. Syria's President Hafez al-Assad was quoted as saying that the Americans were "short of breath."

Last Friday the Center for Law and National Security hosted a seminar on the War Powers Resolution at the University of Virginia. While not unanimous, there seemed to me to be a general consensus both that the Resolution is not "working" very well, and also that at least some of its provisions are unconstitutional. But a former Chief of Staff to this Committee suggested that, whatever its shortcomings, it really didn't do any serious harm to leave the statute on the books. He specifically referred to the deployment of Marines to Beirut to illustrate this point. I strongly disagree.

Marine Commandant General P.X. Kelley--a man of exceptionally uncommon integrity and courage--went so far as to warn Congress in mid-September 1983 that any use of the War Powers Resolution to set an artificial deadline for the withdrawal of the Marines from Lebanon "could encourage more hostile fire and endanger the Marines there."⁷⁹ A few weeks later, six days before a terrorist bomb killed 241 Marines asleep in their battalion landing team headquarters building, *U.S. News & World Report* carried a story about an increase in sniper attacks on the Marines and noting that "a radio message between two Moslem militia units" had read: "If we kill 15 Marines, the rest will leave."⁸⁰ When 241 Marines were killed at the end of that week, members of Congress immediately began a search for a scapegoat so they could assure the voters that *they* were not accountable. Given the outcry that had come from some members at the disclosure months earlier that some Marines were carrying loaded rifles on patrol, there was a certain irony in the indignant charges from congressional investigators following the bombing that the Marines were *inadequately* armed.⁸¹ But the ultimate objective was apparently achieved:

⁷⁹ Walter Andrews, "Marine Corps head cautions Congress," *Washington Times*, September 16, 1983, p. 7.

⁸⁰ "Marines Draw a Bead on Snipers," *U.S. News & World Report*, October 31, 1983, p. 13. This issue went on sale the day following the Sunday morning bombing of the Marine barracks.

⁸¹ It is clear from my personal observations from within the various departments of the government that the existence of the War Powers Resolution creates pressure on policy makers to keep U.S. armed forces in potentially dangerous areas as lightly armed as possible to avoid "triggering" the Resolution's clock. For example, in 1981 a decision was made to deny U.S. advisors and technical personnel the protection of M-16 rifles on the theory that Congress would be less likely to complain if the personnel were only armed with handguns.

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the voters did not hold Congress responsible for the failure. The fact that a few very good Marines had their careers destroyed in the process was, well, unfortunate.⁸²

## Joint Resolutions vs. Declarations of War

Mr. Chairman, perhaps I should digress at this point to deal with a legal issue which has been a major source of confusion and misunderstanding, but which ought to be a "non-issue" and ought to be put to rest. That is the question of whether Congress can authorize offensive hostilities by joint resolution without formally "declaring war."

Put simply, a declaration of war has two aspects. Under International Law it is essentially an anachronism. Such declarations have historically been associated with offensive uses of force, which are now outlawed by the U.N. Charter. No country in the world has formally "declared war" in more than forty years. (I dealt with this issue in greater length in my testimony last month before the House Foreign Affairs Committee.)

The second issue is one of U.S. constitutional law. The use of "joint resolutions" to authorize the President to initiate armed conflict against another nation dates back at least to the Administration of John Adams, and was upheld by the Supreme Court in 1800⁸³ and again in 1801.⁸⁴ While a major debate has existed over the years about the precise dividing line between those uses of force which could be authorized by the President in his capacity as "commander in chief"⁸⁵—widely recognized to include at minimum "defensive" responses to foreign attack and the protection of endangered U.S. citizens abroad and on the high seas—and those which require formal congressional authorization,⁸⁶ no genuine dispute exists over the constitutionality of uses of force pursuant to affirmative

⁸² Commandant Kelley, who had been the subject of speculation that he might become the first Marine officer selected as Chairman of the Joint Chiefs of Staff, caused considerable offense in Congress by defending the conduct of his men and refusing to provide a scapegoat. In so doing, he virtually surrendered any chance he might have had at being selected Chairman. Colonel Timothy Geraghty, who had been selected to command the Marine contingent in Beirut because of his outstanding record in Vietnam and other assignments, quietly accepted the uninformed congressional criticism—which was perhaps relatively painless compared to the anguish of losing so many fine Marines under his command, many of them good friends—and retired from active duty in late 1986. A book on the Lebanese conflict by *New York Times* writer Robin Wright reported that Geraghty "was considered by diplomats and other [Multi-National Force] commanders to be the coolest and most thoughtful of the three Marine commanders to serve in Beirut..." R. WRIGHT, A SACRED RAGE 78 (1985).

⁸³ *Bas v. Tingy*, 4 U.S. (4 Dall.) 37 (1800).

⁸⁴ *Talbot v. Seeman*, 5 U.S. (1 Cranch 1 (1801) (Marshall, C.J.).

⁸⁵ "The President shall be commander in chief of the army and navy of the United States . . . ." U.S. Const., art. II, sec. 2. For a discussion of the scope of this power, see J. Moore & R. Turner, *The Legal Structure of Defense Organization* 87-94 (1986).

⁸⁶ "The Congress shall have power . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water . . . ." U.S. CONST., art. I, sec. 8.

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I do not think . . . that it is reasonable to argue that it is
beyond the constitutional authority of the Congress to enact
legislation of the nature of the War Powers Act.²³⁹

and

[N]o one can doubt that the original intent of the Framers was
to assure Congress the major role in the formulation of foreign
policy . . . Yet the present administration somehow manages to
champion a theory of inherent presidential prerogative in
foreign affairs that would have appalled the Founding Fathers.

This theory of presidential supremacy has only
crystallized in recent times.²⁴⁰

Believing as I do in the validity of Mr. Jefferson's admonition that "he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors," perhaps you will understand my concern that on the basis of such testimony you may emerge from these hearings worse off than you were when you entered them.²⁴¹

### III
# The War Powers Resolution and the Constitution

Mr. Chairman, with the Committee's permission I would like at this point to take a
quick look at some of the specific provisions of the current War Powers Resolution.

As you know, it consists of ten sections. In the interest of time, I shall focus upon
the provisions which I find to be constitutionally suspect, and then make a general
comment about the underlying standard of "imminent involvement in hostilities."

Section 2(c)

Section 2(c) appears to limit "[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," to three circumstances: (1) a declaration of war, (2) specific statutory

239 Statement of Senator Charles McC. Mathias, Jr., July 13, 1988, p. 1.

240 Statement of Arthur Schlesinger, Jr., July 14, 1988, p. 4.

241 Let me emphasize that I am basing my comment entirely upon the prepared written testimony that I have been able to obtain—which I realize may not reflect the quality of the oral testimony or subsequent discussions. In addition, some of the prepared statements I have read, such as those by Judge Sofaer—who as a Columbia Law Professor was commissioned by the American Bar Association to prepare what turned out to be a superb book on this subject, and thus is one of the nation's foremost scholarly authorities in this area—and Senator John Tower, have been quite excellent.

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authorization, or (3) a national emergency created by attack upon the United States, its
territories or possessions, or its armed forces."

If this provision is intended to have the effect of law—and the language would
certainly suggest that—it is unquestionably *unconstitutional* as an infringement upon the
independent constitutional power of the President. In December 1984 I shared a panel with
Senator Javits (and my colleague here this morning, Mr. Reveley) in New York City under
the auspices of the American Branch of the International Law Association, during which
Senator Javits *acknowledged* that this language did not recognize such independent
constitutional authority as the President's power to rescue endangered American citizens
abroad or on the high seas.²⁴² Under the Constitution, so long as Congress provides the
Commander in Chief with an Army or a Navy, it is his to deploy and utilize as he deems
necessary—with the single exception that if he concludes it is necessary to initiate offensive
"war" against another State he must first obtain the statutory approval of both houses of
Congress.

Section 3

I am a strong believer in the importance of "consultation," and during my service in
the Department of State fought hard to replace the all too frequent practice of "informing" or
"notifying" Congress of decisions already made with a policy of seeking the wisdom of
congressional leaders prior to decisions being made. The way it is worded, I am not
opposed to the principle reflected in this provision. For political if not legal reasons, it is
essential that the President keep Congress informed about major foreign policy initiatives—
consistent, of course, with the need to preserve the operational security of the mission and
the safety of our military forces and other personnel.

However, consultation ought to be a process engaged in between co-equal branches
of our government out of mutual self-interest and a spirit of comity. It is not a process that
either branch should *impose* upon the other. As a matter of constitutional law, it is well
established that Congress may not *compel* the President to provide national security
information which in his judgement should be kept secret.²⁴³

The President of the United States is not your "agent," but a co-equal representative
of the American people. It is both *unseemly* and *unconstitutional* for Congress to "direct"
the President to consult about sensitive matters confided by the Constitution to his
discretion—and the language of the current bill ("The President . . . *shall* consult")

²⁴² See, e.g., *Slaughterhouse Cases*, 83 U.S. (16 Wall.) 36, 79 (1873); and *In Re Neagle* 135 U.S. 1, 63-64 (1889).

²⁴³ See *supra*, notes 190-200 and accompanying text.

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certainly implies a legal duty. As a matter of law, of course, such language does not alter
the constitutional distribution of powers and is thus without effect.

There are great benefits for the President in a cooperative, bipartisan (or nonpartisan) relationship with Congress; and the President should realize that without the understanding and approval of Congress and the American people his foreign policy initiatives are unlikely to be viable over the long run. This reality may be a political rather than a legal check, but it is just as important.

In a sense, there is a form of "checks and balances" inherent in this relationship. The President needs your understanding and support, so he has an incentive to cooperate and keep you informed. (He also, of course, needs appropriations for many activities.) The Senate and the Congress want information, and if they behave responsibly—and don't continually "leak" our nation's secrets to the world—it is in the President's self-interest to keep you informed. But when you word your request as a directive, pretending by statute to compel the President to comply, you provide the President with a strong disincentive to cooperate—lest he appear to acquiesce to the unconstitutional demand—without in the process altering in any manner the underlying constitutional realities. The simple fact is that you can't alter the constitutional separation of powers by a simple statute.

## Section 4

Again, as a matter of political wisdom I strongly favor a responsible Congress and Senate being kept up to date about major foreign policy initiatives—to the extent consistent with operational success. The Founding Fathers clearly did not intend for Congress to be given the more sensitive secrets of military or foreign policy—and the behavior of both Houses during the past two decades has served to confirm the wisdom of the original scheme.

I haven't studied the issue, but my expectation is that few (if any) members of Congress were informed in advance about the details of the D-Day invasion during World War II. Congress has no responsibility for the operations of war, and the dangers to the lives of our troops and the success of such operations which would result from even inadvertent disclosure justify a decision to limit advanced operational information to those in the chain-of-command with a genuine "need to know."

On the basis of fifteen years of practice I think the detailed "reporting" requirement is on balance a bad provision—at least in the current political atmosphere on the Hill. If you will recall, both Jay and Locke observed that the details of war and foreign policy could not be managed effectively by antecedent "law." And yet, when you demand that the President provide you with such details as the "scope and duration" of military operations,

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and then treat them essentially as legally binding commitments, you require the Executive to establish precisely the sort of artificial constraints in advance of developing situations that Locke and his contemporaries recognized were incompatible with the effective conduct of military operations.

Part of the problem with section 4 may result as much from current attitudes in Congress than from the language of the provision itself. If it were understood that the details in a "war powers" report were simply good faith "estimates" which could be departed from by the President when necessary to respond to changes by other participants in the conflict or newly perceived strategic or tactical opportunities, the only serious risks would be public disclosure of the information and thus perhaps a military edge for our adversaries and an increased risk to the lives or safety of some of our forces. Those, of course, would be serious risks indeed. But in today's political environment, the President can be confident that whatever "rules of engagement" (or "scope". . . of the hostilities or involvement") he provides to Congress will be viewed by many in Congress as legally binding commitment—*precisely* the sort of antecedent restrictions which Locke and others were trying to avoid—and we can be reasonably certain that if a shift in strategy by our adversaries leads the President to depart from the "game plan" provided to Congress, the President will promptly be accused of "lying to Congress" or "breaking the law" by his political opposition.

But these are *policy* considerations, and there is a more fundamental *legal* problem with this section. Put simply, I don't believe you have the constitutional *power* to compel the President to provide meaningful "reports" about ongoing hostilities. If you conduct yourselves honorably, as a co-equal branch of the national government, and treat the President with the respect and dignity appropriate to such a relationship, I don't believe you will *need* a statute to receive cooperation. History demonstrates that the cooperation which characterized the early years of the Vietnam conflict broke down not because of the Executive but because members of Congress—who had played a full partnership roll in the "takeoff"—sought to find "parachutes" before there was a crash landing.

## Section 5(b)

Section 5 contains in my view the most *flagrantly* unconstitutional parts of the War Powers Resolution. Section 5(b) provides that if Congress does not act to authorize the continued presence of U.S. forces within 62 (or 92^244^) days of the initial commitment, the President must withdraw forces from any situation in which "imminent involvement in

^244^ If necessary to protect the safety of the troops.

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hostilities is clearly indicated by the circumstances”—even if not a single shot has been fired and the American forces are in a purely *defensive* setting and “in harm’s way” simply by virtue of possible foreign aggression or terrorist attack. (Deploying armed forces on your own territory, on the high seas, or on the territory of a friendly foreign country in such a manner that they may be attacked by a determined aggressor has never been viewed as an “act of war,” and does not infringe the power of Congress to veto a presidential decision to initiate a “war” against another State.)

This is a direct effort by Congress to exercise the "Commander in Chief" power vested exclusively by the Constitution in the President. The situation is not in my view a close call. The way the Constitution was designed to work is clear. If the President decides that the national interests require commencing a "war" against another State, he must obtain the approval of both the House and the Senate in advance of initiating such a conflict. Like other exceptions to the President's "Executive" powers, the power "to declare war" was intended to be construed narrowly. It gives Congress a "veto" over a presidential decision to launch an offensive "war," but it does *not* empower you to seize control of the President's independent constitutional powers on the theory that the President's management of military deployments might lead another State to commit aggression against the United States.

Virtually any military deployment is accompanied by some risk—many experts believe President Truman's decision to pull U.S. combat forces out of South Korea in 1949 was a significant factor in the North Korean decision to invade the South the following year. That is precisely the kind of judgment call that the Founding Fathers left to the *uncontrolled discretion* of the President.

While it is true that the President might use his Commander in Chief powers in such a way as to increase the likelihood of involvement in war, the experience of the Neutrality Acts of the 1930's demonstrates that when his hands are tied the prospects of war from foreign aggression increase substantially. Recent history—for example the so-called "Clark Amendment" of 1975, which prohibited the President from assisting the non-communist majority in Angola to resist Soviet and Cuban intervention; and in the end led to the introduction of more than 50,000 Cuban combat troops in Angola and other parts of Africa before being repealed by a wiser Congress—confirms that lesson. Should the people elect an *evil* President who seeks to initiate offensive "war" without first consulting Congress, Congress has a "check" in the power of impeachment.

Apart from its *legal* infirmities, consider for a moment what section 5 of the War Powers Resolution actually does in practice. Consider the signal it sends to our friends and adversaries alike. Countries which might wish to associate themselves with the United

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States in deterring international aggression are told that the American Commander in Chief only has permission to function for sixty days. After that, he is at the mercy of a disorganized legislative establishment which has demonstrated the most incredible irresponsibility time and again in the recent past. (Consider, for example, the Clark Amendment and the "on again, off again" votes to resupply the so-called "Contras" in Central America.) To make it even more outrageous, the statute tells our friends (and our enemies) that Congress has determined in advance that, in the event it can't make up its mind whether the President is right or wrong, it will assume *as a matter of law* that the President is *wrong*. Inaction by Congress means the President loses his independent constitutional power—a "silent veto" works to accomplish something otherwise achievable only through a constitutional amendment.

And what signal do you send the most radical anti-American terrorists around the world? Whenever an American soldier is injured around the world, at least *someone* in Congress goes after a headline by charging that "hostilities" have begun and the War Powers Resolution must be implemented. (And if you believe this is far-fetched, recall the call for the Resolution's implementation by Representative Findley in 1978 because unarmed U.S. airman were at the Lubumbashi airport in Zaire when Belgian and Zairian troops got into a shoving match (no shots were fired) over ownership of a Peugeot automobile the Belgians claimed had been a "gift" from a local businessman. Findley charged in an alarmed speech on the House floor: "It is difficult to conceive of a situation where hostilities could have been more imminent without actually breaking out."²⁴⁵ Actually, I could probably think of a few. What I probably could not do is come up with a more ridiculous factual situation which might prompt someone in Congress to suggest that the President was infringing upon the power of Congress to "declare war"—ostensibly the underlying foundation for this statute.)

In the process, of course, you send a signal around the world that Congress has essentially delegated broad legal authority to any anti-American foreign crackpot who can aim a rifle or toss a grenade at an American GI to set the "war powers" clock in motion. You have told them that all they have to do is "kill a few Marines" and the opposition party in Congress will reflexively go after the President's throat. At minimum, the American government enters a crisis and the American people—told by their legislators that their President is a "lawbreaker"—become further confused and demoralized. What a wonderful reward for an anti-American terrorist, and all he has to do to "win" is to attack an American GI.

²⁴⁵ TURNER, THE WAR POWERS RESOLUTION 69.

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But there is also the "grand prize" to be won. With real luck, killing a few American might start the war powers clock and result in the withdrawal of all American military forces from the region. That would be worth some serious effort. (Recent precedent suggests that if a terrorist can kill 241 American servicemen he will not only get the American troops out, but may bring down one of America's most capable four-star generals as well.) And Governor Dukakis has reportedly already declared that he will if elected abide by this "law."²⁴⁶ The big question in my mind is what the American voters are going to do when they realize that their elected representatives have placed a bounty upon the lives of their sons and daughters serving in uniform abroad. (Senator Nye might have some advice on that.)

Don't misunderstand me. I recognize that there are reasonable individuals who honestly believe that world peace can be best preserved by tying the hands of the President of the United States. I don't question the sincerity of Senator Nye, or Neville Chamberlain, or many of those who today believe the War Powers Resolution will promote "peace." I think all three are incredibly wrong—but quite possibly sincere. And more importantly, with respect to those who gave us the War Powers Resolution and continue to keep it on the books, I think they are breaking the law. This provision is a flagrant violation of the Constitution, and members who support it are in my view violating their oath of office.

### Section 5(c)

This is the "legislative veto" provision, and it is obviously a direct violation of article I, section 7, of the Constitution, which provides in part:

> 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 presented 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, according to the Rules and Limitations prescribed in the Case of a Bill.

²⁴⁶ One hopes that, once the election is over, if he is elected, experience will persuade Mr. Dukakis to alter his views on this subject—as President Carter did. Few things would be more dangerous to our constitutional separation of powers than seeking to balance a renegade "Imperial Congress" with a weak and inexperienced President seeking above all to avoid offending the other branch.

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This is not particularly complex language, and Members of good faith must
recognize that it prohibits the procedures of section 5(c) of the War Powers Resolution,
which provides:

(c) Notwithstanding subsection (b), at any time that
United States Armed Forces are engaged in hostilities outside
the territory of the United States, its possessions and
territories without a declaration of war or specific statutory
authorization, such forces shall be removed by the President if
the Congress so directs by concurrent resolution.

Unlike a Joint Resolution, which must be submitted to the President for his signature
before becoming "law," a concurrent resolution requires only the approval of simple
majorities of each House of Congress. Concurrent resolutions are perfectly acceptable for
expressing "opinions" of Congress or dealing with "housekeeping" matters within the
independent authority of the legislative branch, but they are not a constitutional means of
giving binding direction to the executive branch. (Furthermore, for this particular
"legislative veto" provision to be valid one would have to conclude that Congress may
amend the Constitution by concurrent resolution, since all decisions on deploying armed
forces are vested by the Constitution in the exclusive discretion of the Commander in
Chief.)

In the aftermath of the Supreme Court's holding in *INS v. Chadha*,²⁴⁷ there
appeared to be a consensus that section 5(c) of the War Powers Resolution was
unconstitutional. I shall not dwell on this at length, because it is my understanding that the
bipartisan leadership of this committee, on the advice of your chief counsel, "conceded that
the court decision removes" this section of the law, but did not strike down the entire
statute because of the separability clause.²⁴⁸

I must say that I was deeply troubled by the attempt by House Foreign Affairs
Committee Chairman Dante Fascell, in his July 13 testimony before this subcommittee, to
defend section 5(c) as within the powers of Congress. He argued:

> Finally, a word of caution about section 5(c). Following the Supreme Court decision in *Chadha v. L.N.S.*, a common point of view had evolved that section 5(c) must be unconstitutional because it provides for a "legislative veto."

> First, the Supreme Court, indeed no court, has ruled
> that section 5(c) of the War Powers Resolution is

247 *Immigration and Naturalization Service v. Chadha*, 462 U.S. 919 (1983).

248 Goshko, "War Powers Act Seen Surviving High Court Ruling, Washington Post, June 28, 1983, p. A4.

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unconstitutional. Second, the concurrent resolution described in section 5(c) is not, strictly speaking, a "legislative veto". A legislative veto occurs when the Congress has granted the president explicit statutory authority and then seeks to revoke that authority through the instrument of a concurrent resolution. The War Powers Resolution does not grant the president, explicitly or implicitly, any authority he does not already have under the Constitution. In fact, section 5(c) is operative only if there has been no prior legislative grant of authority (i.e., in the absence of a declaration of war or specific statutory authorization).

Since the Congress has never tested its power under section 5(c), I would be very cautious about abdicating that power simply because of a presumption held by some that it may be in error.

I have great personal respect and affection for Chairman Fascell, and in this case I can only assume he relied excessively upon creative staffwork. He is by academic training an attorney, and he must certainly understand the doctrine of *stare decisis*. When the Supreme Court tells Congress that it may not "legislate" in violation of article I, section 7, of the Constitution, it is unnecessary for it to list every conceivable piece of legislation which will be affected by its ruling. However, of the many hundreds of statutes containing unconstitutional "legislative vetoes," it is perhaps noteworthy that Justice White, in his dissent, expressly did mention the War Powers Resolution as his first example of laws which were struck down in part by the *Chadha* decision. He complained that the Court had not only invalidated the provision in the Immigration and Nationality Act challenged in the *Chadha* case, "but also sounds the death knell for nearly 200 other statutory provisions . . . operating on such varied matters as war powers and agency rulemaking . . . ."²⁴⁹ For Chairman Fascell to say that "no court . . . has ruled that section 5(c) of the War Powers Resolution is unconstitutional" is akin to saying that "no statute or court decision has stated that *Dante Fascell* may not commit murder." Under our legal system, it is not necessary that criminal law statutes identify by name every individual to whom its provisions apply; and by the same principle the Court need not identify every statute by name which is affected by a clearly defined principle of law.

Chairman Fascell is correct in his second observation that the War Powers Resolution does not seek to use a legislative (or concurrent resolution) veto to revoke authority it has vested in the President; but this "victory" hardly strengthens his case. The reason his statement is correct is because control over military troops deployments is already vested in the President by article II, section 2, of the Constitution—which

249 462 U.S. at 967.

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designates him "Commander in Chief." Congress doesn't possess that power in the first place, and thus can not possible "delegate" it to the President. But to reason from that reality that it is permissible for Congress to deprive the President of his independent constitutional power by concurrent resolution—a mechanism clearly invalidated by the *Chadha* decision when used to "legislate" on matters otherwise confided to the discretion of Congress—is to conclude that Congress may effectively amend the Constitution by a simple majority vote in both houses. It follows *a fortiori* that if Congress may not use a legislative veto to withdraw portions of its own constitutional powers which have been delegated by statute to the President, it may not use such a procedure to deprive the President of authority vested directly in his office by the American people through the Constitution—and thus denied to Congress under the doctrine of separation of powers.

If there is any doubt about this issue I would be happy to address it in more detail for the record.

## The Legal Standard is "War," Not "Hostilities"

In an effort to make the War Powers Resolution as comprehensive as possible, the drafters came up with the basic standard that it would apply "to the introduction of United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances ..."²⁵⁰ This is an interesting formulation, and has led to hours of legalistic debate at both ends of Pennsylvania Avenue about whether the President was "violating the law" in the latest foreign policy crisis. Without wishing to deprive either branch of the intellectual exercise this standard promotes, I strongly believe a new standard is necessary. Put simply, this one is illegal.

Some may wonder how it can be "illegal" for Congress to set such a standard. After all, everyone knows that under our Constitution Congress "makes the law." And while that may be generally true, it is important from time to time to keep in mind that Congress is not the ultimate sovereign in the United States. That authority remains in the American people.

When the Founding Fathers met in Philadelphia two hundred years ago, the established a government of limited powers. To Congress they gave "[a]ll legislative powers herein granted,"²⁵¹ to the President they gave "[t]he executive power"²⁵²—subject

250 This and similar language appear throughout the statute, beginning with section 2(a).

251 U.S. CONST., art. I, sect. 1.

252 *Id.* art. II, sect. 1.

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IV
S.J. Res. 323
War Powers Resolution Amendments of 1988
S.J. 323

Senators Warner, Nunn, Byrd and Mitchell have introduced a series of amendments to the War Powers Resolution in the Senate—and I understand Representative Hamilton has introduced essentially the same language in the House—which in my view constitutes an *excellent* step in the right direction. If enacted, they would eliminate some of the most clearly unconstitutional and otherwise objectionable features of the initial statute. I commend all of those responsible for this positive series of proposals.

But in my view this *still* does not solve all of the constitutional or political problems of the existing statute. As I have already discussed, the term "hostilities" is far too broad to withstand constitutional muster. There are many uses of armed force which lead to involvement in "hostilities" which are clearly within the independent authority of the Commander in Chief and are not subject to congressional regulation. (The *Mayaguez* rescue is but one example.) Unless Congress is willing to again violate the "law" and the oath of office each of its members took to uphold the Constitution, some solution is going to be necessary to resolve this problem.

Section 3(2)

Another difficulty I have with the amendments is they continue to take a "legalistic" and confrontational approach. For many years I have favored the establishment of a "Joint Committee on National Security," to be composed of essentially the same congressional leaders who would make up the "permanent consultative group" provided for in section 3(2) of the Nunn-Warner bill. It is an *excellent* idea in my view, and would facilitate the genuine consultation that is so essential to a real bipartisan foreign policy.

But it is both *illegal* and in my view *unseemly* for Congress to attempt by law to compel the President of the United States to "consult" on a timetable established by Congress. The President is the head of a great co-equal branch of the American Government, and he (or she) deserves to be treated with the dignity and respect appropriate to that high office.²⁵⁷ Congress and the President should seek to cooperate in a spirit of comity out of the mutual realization that the safety and security of the nation require a joint effort. But for either side to *demand* that the other "appear on call"—either by Congress

257 Given the number of legislators who seem to want some day to become President, I can't help but wonder why they work so hard on the way up to weaken the authority of the office. As a voter, I would be very wary of a presidential candidate who had a substantial record of disrespect for the powers of the office.

passing a "law" or by the President sending over the Marines to compel such a meeting—is to belittle the constitutional authority of a co-equal branch and is incompatible with our doctrine of separation of powers.

As Judge Sofaer has observed,²⁵⁸ even if Congress had the power to compel the President to consult, the provision permitting this power to be exercised by majority vote of the proposed permanent consultative group would conflict with article I, section 7, of the Constitution as interpreted by the 1983 *Chadha* decision.

## Section 5

Section five of Senate Joint Resolution 323 seeks to give Congress control over the President's Commander-in-Chief powers by use of the "power of the purse." This power—and the article I, section 8, power to "raise and support armies"—gives Congress the power to deny the President any "army" to command, and thus effectively to destroy the Commander in Chief power. And should you choose to deny the President an Army (or Navy) to command, that would be within your constitutional power.

But it does not follow that you may place "conditions" on the use of appropriated funds which have the purpose or effect of seizing control of the exercise of the Commander in Chief power. Such an effort would be a violation of the principles of separation of powers set forth in article I, section 1, and article II, section 2, of the Constitution.

It seems clear from the language of the proposed addition to the War Powers Resolution that its authors thought the "power of the purse" would give them some "higher authority" than a simple statute in their effort to constrain the President's Commander in Chief power. The provision reads in part:

SEC. 6 (a) No funds appropriated or otherwise made available under any law may be obligated or expended for any activity which would have the purpose or effect of violating—
(1) any provision of law enacted pursuant to ... [this law].

²⁵⁸ Testimony of Abraham D. Sofaer, State Department Legal Adviser, September 15, 1988, p. 11.

82

A recent study²⁵⁹ by Raymond J. Celada of the Congressional Research Service of the Library of Congress quotes a variety of inferior court opinions—in situations not at all on point with the current situation—as concluding that the "power of the purse" is essentially unlimited. An 1880 U.S. Court of Claims case asserted that "The absolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people."²⁶⁰ More recently, a federal district court asserted in 1945 that "The purpose of the appropriations, the terms and conditions under which said appropriations were made, is a matter solely in the hands of Congress and it is the plain and explicit duty of the executive branch of the government to comply with the same."²⁶¹ However, none of these cases involved an effort by Congress to use its "power of the purse" to take control of a power vested elsewhere in the government by the Constitution.

The "great principle" that "what cannot be done directly because of constitutional restrictions cannot be accomplished indirectly by legislation which accomplishes the same result"²⁶² has been affirmed time and again by the Supreme Court.²⁶³ For example, when Congress sought to use its legitimate control over the jurisdiction of the Court of Claims—which is admittedly exclusive and complete—to deprive the President of his pardon power by saying that the court could not accept cases brought by pardoned former southern sympathizers seeking to reclaim their property, the Court held that Congress had "inadvertently" violated the separation of powers doctrine. The Court explained:

> It is the intention of the Constitution that each of the great coordinate departments of the government—the legislative, the executive, and the judicial—shall be, in its sphere, independent of the others. To the Executive alone is intrusted the power of pardon; and it is granted without limit. . . . Now it is clear that the legislature cannot change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision under consideration.²⁶⁴

259 Raymond J. Celada, "The War Powers Resolution (WPR): Some Implications of S.J. Res. 323, 'War Powers Resolution Amendments of 1988,'" Congressional Research Service, Library of Congress, Report 88-464 A, p. CRS-11.

260 *Hart's Case*, 16 Ct. Cl. 459, 484 (1880), which Celada notes was "quoted approvingly in *Harrington v. Bush*, 553 F.2d 190, 194 note 7" by the D.C. Circuit Court of Appeals.

261 *Spaulding v. Douglas Aircraft Co.*, 60 F.Supp. 985, 988 (S.D. Calif. 1945), aff'd, 154 F.2d 419 (9th Cir. 1946).

262 *Fairfax v. United States*, 181 U.S. 283, 294 (1901).

263 See *Turner*, "The Power of the Purse: Controlling National Security Policy by Conditional Appropriations," *The Atlantic Community Quarterly*, Spring 1988, p. 79, and sources cited therein.

264 *United States v. Klein*, 80 U.S. (13 Wall.) 128, 147-48 (1872).

83

When in past years Congress has sought to abuse its "power of the purse" to accomplish unconstitutional ends, the Court has not hesitated to strike the measure down. During World War II, when Congress enacted a statute seeking to use what it claimed to be its "plenary" power over appropriations to deny funds to pay the salary of three named alleged "communists" in the Executive branch, the Supreme Court in *United States v. Lovett* struck down the measure as an unconstitutional Bill of Attainder.265

The "power of the purse" is important, but it is not a tool through which Congress may properly seize control of all powers of government. Like all other powers of the Government, it may not be used in violation of any specific constitutional prohibitions. Implicit in the language designating the President "commander in chief" is the prohibition against Congress acting in that capacity.

Much confusion results from trying to compare the constitutional separation of powers in domestic affairs with that in foreign affairs. They are different. In domestic affairs, where Congress "delegates" authority to the President, it has a wide range of flexibility to direct—by conditional appropriations or otherwise—the manner in which those powers are to be exercised. The cases relied upon by Mr. Celada were of this character. But in foreign affairs, with respect to powers vested directly and exclusively in the President by the American people through the Constitution—Congress may not seize control of those powers by placing "conditions" on appropriations.

If the use of conditional appropriations measures allowed Congress to direct the manner in which the President exercised his discretionary responsibilities under the Constitution, the same vehicle could be used to deprive the third branch of its independent powers as well. The same logic which would permit Congress to deny funds (either directly or for payment of staff salaries) to the President to control the deployment of American military forces other than as dictated by the legislative branch could be turned on the Supreme Court with equal ease to shut down its operations if any measure (any statute on a lengthy list of new legislation) were held to be unconstitutional. Article III, section 1, of the Constitution protects judges from having their "Compensation . . . diminished during their Continuance in Office," but it does not expressly guarantee them sufficient funds to hire clerks, pay their rent, publish their opinions, or provide for numerous other essentials without which their effectiveness would cease. To argue that the "power of the purse" permits Congress to seize either Executive powers or Judicial Review is to argue

265 *United States v. Lovett*, 328 U.S. 303 (1946).

84

referred to the Committee on Foreign Relations

JOINT RESOLUTION

Amending the War Powers Resolution to provide expedited procedures for legislation requiring the disengagement of United States Armed Forces involved in hostilities or providing specific authorization for their continued engagement in such hostilities, and for other purposes.

//Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,arat

SECTION 1. SHORT TITLE.

This joint resolution may be referred to as the "War Powers Resolution Amendments of 1988".

SEC. 2. REPEAL.

Section 2(c) of the War Powers Resolution (50 U.S.C. 1541(c); Public Law 93-148), relating to the exercise of war powers by the President under the Constitution, is repealed.

SEC. 3. PERMANENT CONSULTATIVE GROUP.

Section 3 of the War Powers Resolution (50 U.S.C. 1542) is amended--

(1) by inserting "(a)" after "Sec. 3."; and

(2) by adding at the end thereof the following new subsections:

"(b) (1) (A) Except as provided in paragraph (2), in every instance in which consultation is provided under subsection (a), the President shall consult with--

"(i) the Speaker of the House of Representatives and the President pro tempore of the Senate; and

"(ii) the Majority Leader and the Minority Leader of the House of Representatives and the Majority Leader and the Minority Leader of the Senate.

"(B) In order to ensure adequate consultation on vital national security issues, the President and the Members of Congress listed in subparagraph (A) shall establish a schedule of regular meetings of those Members with the President.

"(2) Whenever a majority of the Members listed in paragraph (1)(A) so request, the President shall consult with the permanent consultative group established under subsection (c) unless the President determines that limiting consultation to the Members listed in paragraph (1)(A) is essential to meet extraordinary circumstances affecting the most vital security interests of the United States.

"(c) (1) There is established within the Congress a permanent consultative group composed of--

"(A) the Speaker of the House of Representatives and the

"(B) the Majority Leader and the Minority Leader of the house of Representatives and the Majority Leader and the Minority Leader of the Senate;

"(C) the chairman and ranking minority member of each of the following committees of the House of Representatives:

"(i) the Committee on Foreign Affairs;

"(ii) the Committee on Armed Services; and

"(iii) the Permanent Select Committee on Intelligence; and

"(D) the chairman and ranking minority member of each of the following committees of the Senate:

"(i) the Committee on Foreign Relations;

"(iii) the Select Committee on Intelligence.

"(E) During odd-numbered Congresses, the Speaker of the House of Representatives shall serve as Chairman of the permanent consultative group and the Majority Leader of the Senate shall serve as Vice Chairman. During even-numbered Congresses, the Majority Leader of the Senate shall serve as Chairman and the Speaker of the House of Representatives shall serve as Vice Chairman.

"(d) (1) (A) In addition to the consultations provided for in subsection (b) (2), the permanent consultative group shall hold such meetings as may be necessary to carry out its responsibilities under section 5(b) whenever called by the Chairman or, in his absence, the Vice Chairman or, in accordance with subparagraph (B), a majority of the membership of the permanent consultative group.

"(B) (i) If a majority of the membership of the permanent consultative group desires the Chairman or, in his absence, the Vice Chairman to call a meeting of the group, such members may file with the Clerk of the House of Representatives and the Secretary of the Senate or their designees a written petition, signed by a majority of the membership of such group, requesting the calling of such meeting, and the Clerk and the Secretary shall make every effort to notify the Chairman or, in his absence, the Vice Chairman of that request.

"(ii) If, within 3 calendar days after the filing of the petition, the Chairman or, in his absence, the Vice Chairman does not call the requested meeting, to be held within 6 calendar days after the filing of the petition, a majority of the membership of the group may file with the Clerk of the House of Representatives and the Secretary of the Senate, or their designees, a written notice of the date, hour, and location of that meeting, and the Clerk and the Secretary shall notify all members of the group from their respective Houses of Congress that such meeting will be held and shall inform them of its date, hour, and location. The group shall meet on that date and hour and at that location.

"(iii) If both the Chairman and the Vice Chairman are not in attendance at the requested meeting, then the attending ranking Member of the group from the same House of Congress as the Chairman shall preside at that meeting.

"(2) For purposes of section 5(b), a majority of the members of

SEC. 4. CONGRESSIONAL ACTION; JUDICIAL REVIEW.

(a) In General.--Section 5 of the War Powers Resolution (50 U.S.C. 1544) is amended by striking out subsections (b) and (c) and inserting in lieu thereof the following:

"(b) (1) Whenever the United States Armed Forces are engaged in hostilities or other situations described in a report submitted under section 4(a)(1) (or for which such a report was deemed under paragraph (3) to be required to be submitted) outside the United States, its possessions, and territories without a declaration of war or specific statutory authorization, it shall be in order in the Senate or the House of Representatives to consider, in accordance with section 7, a joint resolution described in paragraph (2)."

"(2) A joint resolution referred to in paragraph (1) is a joint resolution--

"(A) which is introduced in a House of Congress by the Chairman or Vice Chairman of the permanent consultative group described in section 3, after approval of the group by a recorded, affirmative vote of a majority of those voting, a quorum being present, or, if the Chairman or Vice Chairman is not in the majority, then by a Member of the respective House designated by the permanent consultative group; and

"(B) which either--

"(i) requires the President to disengage such forces from such hostilities or to remove them from such situations, as the case may be, or

"(ii) provides specific authorization for the continued engagement of such forces in such hostilities or for the continued use of such forces in such situations, as the case may be.

"(3) For purposes of this subsection, a report described in section 4(a)(1) shall be deemed to be required to be submitted if the permanent consultative group, by a majority of those voting, a quorum being present, so finds. The permanent consultative group shall cause such finding to be published in the Congressional Record.

"(4) Nothing in this subsection alters or modifies the right of any Member of Congress to introduce a joint resolution or bill in a House of Congress which--

"(A) would require that the President disengage such forces from such hostilities or remove them from such situations, as the case may be; or

"(B) would provide specific authorization for the continued engagement of such forces in such hostilities or for the continued use of such forces in such situations, as the case may be.

"(c) Any Member of Congress may bring an action in the United States District Court for the District of Columbia for declaratory judgment and injunctive relief on the ground that the President or the United States Armed Forces have not complied with any provision of law described in paragraph (1) or (2) of section 6(a)."

(b) Conforming Amendment.--The section heading of section 5 of the War Powers Resolution is amended to read as follows:

SEC. 5. PROHIBITION ON USE OF FUNDS.

The War Powers Resolution is amended by striking out section 6 (50 U.S.C. 1545) and inserting in lieu thereof the following:

"PROHIBITION ON USE OF FUNDS

"Sec. 6. (a) No funds appropriated or otherwise made available under any law may be obligated or expended for any activity which would have the purpose or effect of violating--

"(1) any provision of law enacted pursuant to section 7; or

"(2) any other provision of law relating to the actions described in clause (A) or (B) of section 5(b)(4).

"(b) Nothing in this section prohibits the use of funds to remove the United States Armed Forces from hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances.".

SEC. 6. CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTIONS.

(a) In General.--The War Powers Resolution is amended by striking out section 7 (50 U.S.C. 1546) and inserting in lieu thereof the following:

"CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTIONS

"Sec. 7. (a) For purposes of this section--

"(1) the term 'joint resolution' means a joint resolution described in section 5(b)(2); and

"(2) the term 'session days' means days on which the respective House of Congress is in session.

"(b) A joint resolution introduced in the House of Representatives shall be referred to the Committee on Foreign Affairs of the House of Representatives. A joint resolution introduced in the Senate shall be referred to the Committee on Foreign Relations of the Senate.

"(c) (1) If the committee to which is referred a joint resolution has not reported such joint resolution (or an identical joint resolution) at the end of 7 calendar days after its introduction, such committee shall be discharged from further consideration of such joint resolution, and such joint resolution shall be placed on the appropriate calendar of the House involved.

"(2) After a committee reports or is discharged from a joint resolution described in section 5(b)(2), no other joint resolution under such section with respect to the same hostilities, or the same situation in which imminent involvement in hostilities is clearly indicated by the circumstances, may be reported by or be discharged from such committee while the first joint resolution is before the respective House of Congress (including remaining on the calendar), a committee of conference, or the President.

"(d) (1) (A) When the committee to which a joint resolution is referred has reported, or has been discharged under subsection (c) from further consideration of such joint resolution, notwithstanding any rule or precedent of the Senate, including Rule 2E, it is at any

to move to proceed to the consideration of the joint resolution and, except as provided in subparagraph (B) of this paragraph or paragraph (2) of this subsection (insofar as it relates to permanence and relevancy of amendments), all points of order against the joint resolution and consideration of the joint resolution are waived. The motion is highly privileged in the House of Representatives and is privileged in the Senate and is not debatable. The motion is not subject to a motion to postpone. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall be in order, except that such motion may not be entered for future disposition. If a motion to proceed to the consideration of the joint resolution is agreed to, the joint resolution shall remain the unfinished business of the respective House, to the exclusion of all other business, until disposed of, except as otherwise provided in subsection (e)(1).

"(B) Whenever a point of order is raised in the Senate against the privileged status of a joint resolution that has been laid before the Senate and been initially identified as privileged for consideration under this section upon its introduction pursuant to paragraph (2) (A) of section 5(b), such point of order shall be submitted directly to the Senate. The point of order, 'The joint resolution is not privileged under the War Powers Resolution', shall be decided by the yeas and the nays after four hours of debate, equally divided between, and controlled by, the Member raising the point of order and the manager of the joint resolution, except that in the event the manager is in favor of such point of order, the time in opposition thereto shall be controlled by the Minority Leader or his designee. Such point of order shall not be considered to establish precedent for determination of future cases.

"(2) (A) Consideration in a House of Congress of the joint resolution, and all amendments and debatable motions in connection therewith, shall be limited to not more than 12 hours, which, except as otherwise provided in this section, shall be equally divided between, and controlled by, the Majority Leader and the Minority Leader, or by their designees. The Majority Leader or the Minority Leader or their designees may, from the time under their control on the joint resolution, allot additional time to any Senator during the consideration of any amendment, debatable motion, or appeal.

"(B) Only amendments which are germane and relevant to the joint resolution are in order. Debate on any amendment to the joint resolution shall be limited to 2 hours, except that debate on any amendment to an amendment shall be limited to 1 hour. The time of debate for each amendment shall be equally divided between, and controlled by, the mover of the amendment and the manager of the joint resolution, except that in the event the manager is in favor of any such amendment, the time in opposition thereto shall be controlled by the Minority Leader or his designee.

"(C) One amendment by the Minority Leader is in order to be offered under a one-hour time limitation immediately following the expiration of the 12-hour time limitation if the Minority Leader has had no opportunity to offer an amendment to the joint resolution prior thereto. One amendment may be offered to the amendment of the Minority Leader under the preceding sentence, and debate shall be limited on such amendment to one-half hour which shall be equally divided between, and controlled by, the mover of the amendment and the manager of the joint resolution, except that in the event the manager is in favor of any such amendment, the time in opposition thereto shall be controlled by the Minority Leader or his designee.

"(D) A motion to postpone or a motion to recommit the joint resolution is not in order. A motion to reconsider the vote by which

and shall not be further amended, revised, or extended for future disposition, and debate on such motion shall be limited to 1 hour.

"(3) Whenever all the time for debate on a joint resolution has been used or yielded back, no further amendments may be proposed, except as provided in subparagraph (B), and the vote on the adoption of the joint resolution shall occur without any intervening motion or amendment, except that a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House may occur immediately before such vote.

"(4) Appeals from the decisions of the Chair relating to the application of the Rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a joint resolution shall be limited to one-half hour of debate, equally divided between, and controlled by, the Member making the appeal and the manager of the joint resolution, except that in the event the manager is in favor of any such appeal, the time in opposition thereto shall be controlled by the Minority Leader or his designee.

"(e) (1) Except as provided in paragraph (2), if, before the passage by one House of a joint resolution of that House, that House receives from the other House a joint resolution, then the following procedures shall apply:

"(A) The joint resolution of the other House shall not be referred to a committee.

"(B) With respect to a joint resolution of the House receiving the joint resolution--

"(i) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but

"(ii) (I) the joint resolution of the other House shall be considered to have been read for the third time; and

"(II) the vote on final passage shall be on the joint resolution of the other House, if such joint resolutions are identical, or on the joint resolution of the other House if not identical, with the text of the joint resolution of the first House inserted in lieu of the text of the joint resolution of the second House, and such vote on final passage shall occur without debate or any intervening action.

"(C) Upon disposition of the joint resolution received from the other House, it shall no longer be in order to consider the joint resolution originated in the receiving House.

"(2) If one House receives from the other House a joint resolution before any such joint resolution is introduced in the first House, then the joint resolution received shall be referred, in the case of the House of Representatives, to the Committee on Foreign Affairs and, in the case of the Senate, to the Committee on Foreign Relations, and the procedures in that House with respect to that joint resolution shall be the same under this section as if the joint resolution received had been introduced in that House.

"(f) If one House receives from the other House a joint resolution after the first House has disposed of an identical joint resolution, it shall be in order to proceed by nonceatable motion to consideration of the joint resolution received by the first House, and that received joint resolution shall be disposed of without debate and without amendment.

motions required for the disposition of amendments between the Houses shall not exceed 1 hour, equally divided between, and controlled by, the mover of the motion and the manager of the joint resolution at each stage of the proceedings between the two Houses, except that in the event the manager is in favor of any such motion, the time in opposition thereto shall be controlled by the Minority Leader or his designee. In the case of any disagreement between the two Houses of Congress with respect to a joint resolution which is not resolved, any Member of Congress may make any motion or motions referred to in this subparagraph within 2 session days after action by the second House or before the appointment of conferences, whichever comes first. In the event the conference are unable to agree within 72 hours after the second House is notified that the first House has agreed to the conference, they shall report back to their respective House in disagreement.

"(B) Notwithstanding any rule in either House of Congress concerning the printing of conference reports in the Congressional Record or concerning any delay in the consideration of such reports, such report, including a report filed or returned in disagreement, shall be acted on in the House of Representatives and the Senate not later than 2 session days after the first House files the report on, in the case of the Senate acting first, the report is first made available on the desks of the Senators. Debate in a House of Congress on a conference report or a report filed or returned in disagreement on any such joint resolution shall be limited to 3 hours, equally divided between, and controlled by, the Majority Leader and the Minority Leader, and their designees.

"(2) If a joint resolution is vetoed by the President, the time for debate in consideration of the veto message on such measure shall be limited to 20 hours in each House of Congress, equally divided between, and controlled by, the Majority Leader and the Minority Leader, and their designees.

"(h) This section is enacted by the Congress--

"(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

"(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House."

(b) Repeal.--Section 1013 of the Department of State Authorization Act, Fiscal Years 1984 and 1985 (50 U.S.C. 1546a), relating to expedited procedures for certain joint resolutions and bills, is repealed.

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100th CONGRESS
Ed Session

H. J. RES. 601

## IN THE HOUSE OF REPRESENTATIVES

June 28, 1988

Mr. Hamilton introduced the following joint resolution; which was referred jointly to the Committees on Foreign Affairs and Rules

## JOINT RESOLUTION

//Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, \\"

## SECTION 1. SHORT TITLE.

## SEC. 2. REPEAL.

## SEC. 3. PERMANENT CONSULTATIVE GROUP.

Proposed Senate/House Amendments Introduced 1988 (and again '89) would make changes: ________________________

Note: Senate/House versions reintroduced this Congress ('89) along with at least six other bills offering various alternatives (one by Republican Dornan of California would repeal the War Powers Act). No action has been taken on any of the above bills.

h j res 601

2 DOCUMENTS FOUND

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1 OF 2 66 LINES

DS

SPONSOR............ Hamilton

BILL DIGEST ...... Jun 28, 88. War Powers Resolution
Amendments of 1988

Resolution

Amendments

of 1988 - Repeals certain provisions of the War Powers
Resolution relating to the exercise of war powers by the President.

Amends the Resolution to require that, where
consultation is
required under such Act, the President shall consult with:
(1) the
pro
Speaker of the House of Representatives and the President
tempore of the Senate; and (2) the Majority and Minority
Leaders of
the House and Senate. Requires the President and such
Members to
establish a schedule of regular meetings to ensure adequate
consultation on national security issues.

Requires that, whenever a majority of such Members so
request,
the President shall consult with a permanent consultative
group (to
be established within the Congress under this Act) unless
the
President determines that limiting consultation to such
Members is
essential to meet extraordinary circumstances affecting the
most
vital security interests of the United States. Requires the
to such
Members, to include the chairmen and ranking minority
members of
the House and Senate committees on foreign affairs, armed
services,
and intelligence.

consider a joint resolution (approved by the permanent
consulting
group) which either: (1) requires the President to
disengage or
remove such forces; or (2) provides specific authorization
for
their continued engagement or use. Sets forth
congressional
priority procedures for such a joint resolution.

The Imperial Congress
___

Peter W. Rodman

[I]t is not Vietnam directly that will inhibit American responses in the future. It is the structural similarity of future challenges, as perceived by the American people and their representatives, that will be likely to evoke the same responses or obstructions, hence the same ultimately effective constraints on American power. There is no reason to think that, after Vietnam, these factors will cease to operate. The reliability of the American response is the first casualty of Vietnam, and particularly of the end game there.

___ *The Origins of the Conflict* ___

26

*The National Interest–Fall 1985*

of the president as "the sole organ of the nation in its external relations, and its sole representative with foreign nations." A recurring theme in *The Federalist* is the critical importance of "secrecy and despatch" in the conduct of foreign policy, and thus the need to allow the executive discretion to deal with rapidly unfolding events. Some brilliant research in the 1970s by Abraham D. Sofaer reveals that our earliest presidents—themselves the framers of the Constitution—construed the power of the commander-in-chief exuberantly, attempting military expeditions and operations (including covert ones) without declarations of war and sometimes without full disclosure to the Congress.

Nevertheless, the history of executive-congressional relations supports the notion of a recurring struggle for dominance. We have had strong presidents in some periods and an ascendant Congress in other periods. Assertive presidencies, indeed, have often provoked a reaction. In the early part of this century, the overseas exertions of Teddy Roosevelt and Woodrow Wilson were followed by a generation of congressional preponderance in foreign affairs, exemplified by the defeat of the League of Nations and the Neutrality Laws of the 1930s; this phase of our history ended only with Pearl Harbor. Then, three decades of a strong postwar domestic consensus on U.S. global leadership ended when Vietnam (and Watergate) provoked a congressional reaction under whose burdens we still labor.

Thus the phenomenon has a cyclical quality about it, with major cataclysms (such as Pearl Harbor and Vietnam) causing major shifts, as dramatic events provide the politically more compelling arguments to one side or the other. It is clear, as well, that Congress has always played a significant role, even in periods of presidential assertiveness. Any reader of Dean Acheson's memoirs of the Truman Doctrine, Marshall Plan, North Atlantic Treaty, and Korean war will be reminded of Congress's power even in what is now fondly regarded as the golden age of American world leadership.

## Systematically Negative

THE WORLD is in turbulence as never before. ...

This instability derives from what seems, to some, a new and unexpected evolution of the Soviet Union. I mean not only a renewal of its militancy throughout the world but particularly the impressive expansion of its military power. This is true, but not at all new. Russia has been pursuing this path toward superpower status on a world scale—that is, on the scale of the United States—for thirty years. Perhaps it is the sudden awareness that it has now arrived there that explains the instability of which I was speaking.

Nevertheless, this instability might well be thought to originate much more in the American crisis caused by the defeat in Vietnam and the incredible Watergate affair. The credibility of the United States throughout the world has suffered a serious blow. Above all, the American people's loss of confidence in its leaders, embodied every day in the systematically negative positions of the Congress in Washington, have led to a sort of paralysis of power. ...

*Maurice Couve de Murville, in the French National Assembly, May 6, 1976*

The Imperial Congress

27

First of all, in earlier times of congressional
ascendancy, the United States was not a great
power with international responsibilities. The
flexibility of our constitutional system has been
one of its virtues—its ability to adapt to histor-
ical necessity. But what is our historical neces-
sity today? In the 1930s, Britain kept the ty-
rants at bay while we were immobilized by
self-imposed restraints. Today, what other de-
mocracy is capable of maintaining the global
balance of power if we hobble ourselves by
severe limits on national action?

28

operations; the ability to keep secrets; arms sales; security assistance; and even economic assistance, which was tied more and more to humanitarian rather than political objectives. Many key instruments of an effective national security policy are now burdened by legislative limits, denying the president flexibility in responding to new challenges in a turbulent world. Control over the instruments of policy has given Congress the ability—and also the temptation—to micro-manage diplomatic tactics.

## *The Magnitude of the Problem*

- the restrictions on military action and security assistance in support of allies in Indochina from 1970–1975, which played a crucial role in undermining resistance to communist takeover;

- the Tunney and Clark amendments on Angola (1975–1976), which prohibited U.S. efforts to block the Soviet-Cuban intervention in the Angolan civil war;

The Imperial Congress 29

U.S. Marines in Lebanon in 1982-1984 and on U.S. military trainers in El Salvador;

- the War Powers Resolution of 1973, requiring, *inter alia*, congressional authorization for the deployment of U.S. troops in hospitals abroad beyond 60 days;

constraints imposed by conservatives: for example, the Jackson-Vanik linkage of most-favored-nation treatment to Soviet emigration, and restrictions on aid to Mozambique or on land reform in El Salvador.

These broad categories embrace hundreds of statutory provisions (though many duplicate each other), as well as reporting requirements and waivable restrictions. Some are presidential commitments exacted by Congress as the price of support for presidential initiatives. And the scope of legislative micro-management is now enormous. The 1964 edition of the congressional publication *Legislation on Foreign Relations* was a single volume of about 650 pages. Twenty years later, it had grown into three volumes of more than 1,000 pages each.

## *The War Powers Resolution*

30

The Imperial Congress

31

A Note on the Door

Gerald R. Ford, lecture,
April 11, 1977

> . . . Perhaps in addressing these questions we should review whether the War Powers Resolution, as it now stands, remains an appropriate mechanism for the interaction between the executive and the legislative branches of Government. I am personally convinced that we cannot continue to begin each military involvement abroad with a prolonged tedious and divisive negotiation between the executive and the legislative branches of Government. The world and its many challenges to our interests simply do not allow us that luxury.

32

Mayaguez to Grenada—even with the War Powers Resolution—presidents managed to keep the initiative, undertaking limited military operations and reporting to Congress afterward. In these cases, practical necessity compelled successive presidents to act in the national interest, and the War Powers Resolution did not really impede their action. Likewise the initial dispatch of Marines to Beirut in 1982 was not limited (or even deemed to be covered) by the resolution's provisions on deployment of forces into hostilities.

THUS, the political reality has been that the president retains the initiative in military deployments, and he retains much freedom to succeed or fail on his own responsibility. Operations that succeeded usually encountered no serious War Powers complaints from the Congress; operations that ran into difficulties encountered huge political problems even when “authorized” by agreed-upon procedures.

At the same time, this limited “window” of presidential flexibility offers few grounds for optimism. For the institutional impulse of Congress is to attempt to narrow further the freedom of the president to take the initiative. Success commands support, but the trend has been to allow presidents less and less room to succeed. And whatever the legalities, the new legislative regime has clearly restructured the political environment.

Unfortunately, incrementalism is deeply ingrained into our national war-fighting style. “Using only the amount of force proportional to the need” is the common concept, derived perhaps from our legal tradition as well as from bureaucratic caution; academic constructs from bargaining theory also gave rise to notions of gradual escalation and demonstrative use of force to give evidence of one’s resolve, intention, or commitment. Yet the bias toward “carefully limited” applications of force can be an invitation to protracted war (Vietnam) or fiasco (the Bay of Pigs; the Iran rescue raid). Playing it safe is often the most certain road to disaster. Our capacity to act effectively within the “window” that is open to the president is one of the most crucial aspects of this whole problem. It behooves the executive branch to have its own house in order, with respect to both doctrine and operational capability.

The War Powers Resolution, with its 60-day limitations, could be viewed, with some irony, as an antidote to incrementalism—putting a premium on quick, overwhelming, decisive action in crises. But Hamilton was probably right: the “variety of exigencies” can never be foreseen. There are bound to be situations in which gradual, careful applications of limited force make sense. Here the War Powers Resolution, and its symbolic elevation of Congress’s role, are bound to be a political constraint on the president’s ability to succeed.

## Prospects

The Imperial Congress

33

THE REAL ISSUE is, of course, far more than a question of institutional prerogative. Tocqueville raised the profound question of whether democracies in general—and the American democracy in particular—were capable of the wise conception and consistent execution needed in the conduct of foreign affairs. In the recent period, the Congress has sought a greater role in American foreign policy; but what has it gained if American foreign policy, in the process, is rendered less and less effectual? Collegial governance and participatory policy-making may satisfy abstract theories of ideal democracy; but what

34

Freedom has many powerful enemies who
are, by definition, unhampered by the internal
restraints of a free society. The United States
has faced up to such challenges in the past—
under many strong presidents—thus proving
that there is no inherent reason why a free
society must be doomed to impotence. Experience
in this century shows there is no inconsistency
between a healthy democracy and a
strong foreign policy. Surely there is room, as
George Shultz has put it, for "accountability
without paralysis." Surely our constitutional
system is resilient enough to respond to today's
historical necessity—with Congress sharing in
the setting of broad policies, but allowing the
president flexibility in defending and advancing
the nation's interests.

The Imperial Congress.

35

117

General VESSEY. Concerning the issue at hand, it seems to me that there are a number of things that the Congress needs to address as it addresses the War Powers Resolution.

I want to say right off the bat that I agree with the need for consultation and certainly no President can engage in foreign policy acts of any kind, certainly those that involve hostilities, without getting the support of the American people and the Congress.

But I think you have to ask yourself is the Resolution, as it is now constructed, or any of the proposed changes to it, anachronistic in a world in which we have had about 20 wars going on in any given day over the last 20 years, and the last time that I know there was a declaration of war was 43 years ago, when the Soviets declared war on the Japanese.

In a world in which we have banded together with other freedom-loving peoples of the world in a strategy of deterrence, which involves placing our forces and the forces of other nations perhaps closer to hostilities than we ever did in the past, that is, pre-World War I, for example, and where that line is less defined today than it ever was in the past, is it anachronistic? Is it anachronistic in a world in which all potential enemies of ours have used our own political process to try to drive wedges inside the American body politic to gain their own purposes?

That 60-day time limit gives those people an opportunity to drive those wedges, particularly in these situations of less than all-out war. Certainly our strategy involves preventing an all-out war.

That is really what we want to do.

I think those are the questions that you have to ask of yourselves as you deal with this.

From my point of view, I sort of agree with General Jones, that repeal of the Act would be a good thing to do. But I recognize that there is a need for consultation, and there certainly is a need for a President to get the support of the Congress and the people for what he wants to do.

Senator BIDEN. Thank you, General.

General Scowcroft.

## STATEMENT OF GEN. BRENT SCOWCROFT (USAF-RET.), FORMER NATIONAL SECURITY ADVISER

General SCOWCROFT. Mr. Chairman, welcome back. We are all pleased to have you with us.

Senator BIDEN. Thank you.

General SCOWCROFT. I appreciate the opportunity to appear before the committee on such an important national issue. Let me make my position clear at the outset.

In my view, the War Powers Resolution is a well meaning, but deeply flawed, piece of legislation. To me, the heart of it is the consultation provision; that is, to force consultation on the President, to bring the two branches of Government together on important decisions.

This is a worthwhile goal. There is no question about that. And we have not always pursued that goal adequately, either branch of the Government.

118

The basic problem is that the weapon available to the Congress to work its will—that is, basically the power of the purse in national security matters—is a very blunt instrument. But so is the War Powers Resolution.

The actual fact is, as General Vessey has said, that no President can pursue a major policy over a significant period of time without congressional support, and if any President needed it, that was underscored, I think, by the Iran-Contra example as an object lesson of that truth.

One of the really practical problems for any administration—while I certainly disagree with Mr. Lakeland's characterization of chaos in the executive branch—is that the process of reaching a decision within the executive branch is frequently so laborious there is little inclination to start the process over again with the Congress.

That is not the right way to do it, anyway; but that process is another story.

But, even assuming the President has all the goodwill in the world and wants to consult there are real problems with the process.

First of all, the Congress, in its organization and procedures, has changed over the last couple of decades. It is not clear what is meant by "consultation," or with whom. When has the President really consulted? What are the consequences of that consultation in terms of what then follows? How does the President deal with objections to what he proposes to do? Are other Congressmen bound by the consultation, those who do not participate in it? How can a President ensure confidentiality if that is required by the proposed activity? What if the Congress is not in session?

There are all kinds of question attendant to the consultation process that have not been resolved and, as far as I can see, the Congress has not taken any real steps to extend the President a hand and make consultation any easier.

But I think there are also substantive problems.

Fundamentally, the War Powers Resolution produces incentives in all the wrong directions. It could make it more difficult to deal with a problem early, when the issues may be relatively ambiguous, but when small applications of force or other moves, could be more effective than massive moves made than later on.

As General Jones says, the War Powers Resolution raises questions of will in the minds of those against whom or for whom the military forces are being moved, the question of who, in fact, is running foreign policy and how can one rely on an inconsistent United States.

The reporting requirements can produce incentives for a President to obfuscate on what the true situation is, as I think probably happened in the gulf, and even to prevent useful consultation or discussions with the Congress because of fear over triggering the Resolution.

If the Resolution is triggered, the President then has an incentive to get the action completed within 60 or 90 days, regardless of the natural pacing of whatever the issue is, and an opponent against whom the deployment is being made has an incentive, (a)

to trigger the
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119

to trigger the Act, and then, (b) to try to stall for 60 to 90 days to
see whether the United States will have to pull out.

There is one additional problem, and that is that to a layman, it
seems that the law almost certainly is unconstitutional. The Act
recognizes that it cannot confer or take away any of the constitu-
tional powers of the President.

But if being Commander in Chief has any meaning at all, it must
include the ability to move troops.

The Resolution does not claim that the President cannot deploy
military forces. Indeed, the President can, in fact, fight a war for
60 days under the terms of the War Powers Act.

But if the President has the power to deploy forces, and it seems
clear that he does under his authority as Commander in Chief, how
can he possibly be required to withdraw those forces by congres-
sional inaction? That, incidentally, is not the most bold, courageous
way for the Congress to face an important national issue.

I believe, Mr. Chairman, that it is time to recognize that the War
Powers Resolution represents a policy failure, and that there is so
much emotion vested in it that the best course of action is to repeal
the War Powers Resolution, and then look at how the two branches
can better go about the important process of consulting.

Thank you.

I have a number of questions based on your comments, in addi-
tion to the ones I have prepared.

Let me begin with you, General Scowcroft, because you have
made a statement that was echoed by your colleagues, and that
concerns the sort of fixation that we all have on the 60 days.

Section 4(a)(1), which is the hostilities report the President would
submit, which would start the clock running the 60 days, has the
effect of triggering another portion of the Act which says that if, in
fact, there has not been congressional approval for the action
within the 60-day period, then the troops, the forces, are automati-
cally withdrawn.

But I want to make something clear. I am sure you all know it,
but maybe it has gone unstated here for too long.

The President, when he sends that report up, that 4(a)(1) report,
starting the clock running, can ask with that report that there be
immediate authorization for his action.

You know, we don't have to wait 60 days. No President has to
wait that long.

Let me ask you a practical question. You are men not only of
demonstrated intellectual competence in reaching one of the sever-
al most important positions that are held in this democracy, but
also practical men. I have always wondered why has no President
asked at the outset of his action to make it a 4(a)(1) and to ask for
authorization? Can any of you think of any time, in your lifetimes,
where a President has taken the action of committing U.S. forces
anywhere that the Congress has not, if asked or having participat-
ed in it, immediately after the action was taken, that the Congress
has not supported it?

Can any of you imagine in your many years of experience a
President saying he was committing troops for the withdrawal of
students from Grenada, or he was committing troops for saving

120

anyone in Panama, that a congressional body of 535 women and men, if asked in the immediate aftermath of that for their support, would not give it?

I don't understand why Presidents have not used what we thought it was beneficial for. There was General Vessey's point about the need for a united nation. There was General Jones' point about how, as a general, you don't want to commit troops if the Nation is not behind the commitment.

Why hasn't a President ever done that? Or am I mistaken in my reading of the Congress and the American people from a historical perspective?

General SCOWCROFT. No, I don't think so. And I would say certainly in a case where hostilities are underway, that reaction is one where I cannot think of an exception to it.

I think there are other cases, however, where the possibility of hostilities is present, but not certain, where there could be a real question raised. And I think that Presidents fundamentally—most of the times the War Powers Act has been relevant in one way or another have been in minor actions—I think the President has felt that it is within his constitutional authority to do what he did and that to ask for ratification was not necessary.

Senator BIDEN. General, if there were no War Powers Resolution, what limits do you believe the Constitution places on a President's power? What specifically could a President not do without congressional authorization?

General SCOWCROFT. I think what the President could not do is prosecute any war without congressional authorization because appropriations have to be passed for the prosecution of that war.

It seems to me that that is fundamentally the way the Constitution divided the powers.

Senator BIDEN. Well, let's pursue that for a second.

You are saying that the ability to prosecute what most people would call a war would be affected by the amount of money the President needed to conduct that war. I don't know what the cumulative number was, but if I am not mistaken, the Defense Department had to spend several billion dollars in the Persian Gulf to maintain the additional fleet presence there.

So, does $1 or $2 billion not rise to the level of a war?

Do we have to get into a situation where the prosecution of a military action exceeds $100 billion before that is called a war?

I mean, little old Grenada cost a lot of money. It cost a lot of ribbons, and it cost a lot of money, too.

So, I am not quite sure how we define this. If we define it only in terms of the size of the authorization, then I don't know where it starts to click.

General SCOWCROFT. No, I did not mean to so define it.

I was talking about the power of the Congress to restrict the President's action in national security affairs. It seems to me that the power of the purse, whether it be the Persian Gulf or anywhere else—you could certainly prevent any moneys under any appropriations act from being used to outfit those forces in the Persian Gulf.

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121

Senator BIDEN. It seems to me that what you are saying is the President can initiate any war he wishes to and the Congress can stop any initiated war, if it wishes to.

That is the logic of your statement, unless I am misunderstand-
ing something.

General SCOWCROFT. Look at the logic of American history.

I believe there have been—and I may have missed this by 1 or
2—15 declared wars in American history. But there have been
upward of 200 times where American forces have been committed
to combat, beginning with the operation against the Barbary Pi-
rates by a President who was as mindful of the restrictions on
Presidential authority and the powers of the Congress as any,
President Jefferson.

In fact, as Prof. Edwin Corwin has said, the Constitution, in the
field of foreign policy, is an invitation to struggle between the two
branches. What I think we need to do is to look at ways that we
can enhance the cooperation of the branches, not an attempt to tie
one down by the other.

Senator BIDEN. Excuse me for a moment.

[Pause.]

Senator ADAMS. May I ask a question, Mr. Chairman, while you
are consulting?

Senator BIDEN. Sure.

Senator ADAMS. General, what we don't understand, and I want
to follow up on the chairman's question, is that there is nothing to
prevent a President, when hostilities have occurred and there has
been a rescue or defensive action, from coming to the Congress and
requesting authorization. It was done in Lebanon, for example. It is
an orderly way of going through with consultation and moving
ahead the foreign policy objectives of the United States.

What I don't understand is the assumption that the three of you
have made, that it is better to let the pot boil until there is an ex-
plosion between the Congress and the President, or between the
people and the President, rather than the War Powers Resolution,
which is an orderly, automatic system of, first, consultation, then
authorization by Congress. I agree with the chairman that such au-
thorization would be given.

The War Powers Resolution is a tool in the hands of the Presi-
dent, properly used, to say to opponents and others that we are
moving to the next step.

This has been argued as a theoretical matter too much and too
much as a technical matter, rather than doing what the authors of
this Resolution intended, which was to produce a consultation
system and a way of moving the Congress with the President.

I thank you for yielding, Mr. Chairman.

I just don't understand why all of you assume that the Congress
is going automatically be opposed to any Presidential request.

General VESSEY. I don't think that is an assumption, Senator.

If I could get back to the earlier question of the chairman and
make a couple of points on it, it might help to illuminate this.

We are not dealing with a situation where we are talking about
going to war or not going to war. I think the world with which we
deal today is this world that I have tried to define earlier, where

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122

our strategy is preventing war. We really want to prevent war, and
we ought to assume success at that.

But, preventing war requires taking a certain number of risks
and it requires some cost to the United States—$300 billion a year
for a defense budget; 2 million-plus people in the active forces and
another 1 million in the Reserves.

So, we pay a considerable price to prevent war. But we have decided that it is a small cost compared to the cost of war itself.

We really want to prevent it, and it requires taking some risks at
times. Having sat in a couple of times on what I think Presidents
would have called consultation, and Congresspeople probably would
have said it was not consultation, that they were simply being in-
formed, I recognize that there is that difference and that it is some-
thing that you have to deal with and that Presidents have to deal
with. Then seeing Presidents who were reluctant themselves to
take those risks, but finally decided they had to take those risks,
and then seeing the leaders of the Congress come up and say
"Well, we hear you, but we don't agree with it and it had doggone
well better be right." Then the forces march off as in the case of
Grenada, it comes out all right with the Congress eventually sup-
porting the operation. You can see how concerns of Presidents can
arise.

Senator BIDEN. But that, General, was one of the reasons for the
Act, because the Congress has to go on the line one way or another.
And if it does not work, it does not allow Congress to come back
and say—if they have supported the President, that "Well, it didn't
work, and I told you it wasn't going to work."

Let me focus on this a little more. By way of an example. President Reagan and others have argued that the existence of the Sandinista regime in Nicaragua is a destabilizing factor in the hemisphere and may lead to broader conflict, involving U.S. interests. Do you believe the President would have the authority, in order to prevent war, to prevent further conflict, to say I am going to invade Nicaragua with American troops.

Does he have the authority to do that?

General SCOWCROFT. Yes.

It may not be prudent if he does not have the support of the Con-
gress, of the country, and a debacle could ensue.

But, yes.

Senator BIDEN. I understand that.

General JONES. With or without the War Powers Resolution?

Senator BIDEN. Yes, with or without. I am just asking whether
he has the authority to do that under the Constitution, as you see
it, under the heading of preventing war. When the situation in
Poland was at a fever pitch, right at the interregnum period, be-
tween Carter and Reagan—and many of you were involved; indeed
all of you were on active duty at the time, in various capacities—
there was concern that there may be a very serious problem if the
Soviet Union committed the 40 divisions they had amassed in and
around Poland. In order to prevent a broader war, would the Presi-
dent have the authority to invade Poland, to prevent that from oc-
curring?

General SCOWCROFT. Yes.

Senator BIDEN. Well, it seems to me that it is really simple.

But first
General
judgment

Senator
am not ta

The real
can be clearly
power unde-
lectively—
that the in-
of prevent
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ment.

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was talking
policy, not,
declared w

Anyway,
General
that the Pr
port of the

Senator E

You see, I
with the W
Act—that is
tions have
years in ho
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where once a
almost impos

We get the
time now an
do years. I think
in the Senate

What would
wisely or un-
unwise, the
President now. We
There are 5,
there, Biden.

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commitment,
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I believe th
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role to play i
yield to my co

General So
don't think th
President still

The War Po
time. It does n
were. He could

93-280 - 89 -

123

event war, and

number of risks
a billion a year
active forces and

But we have de-
war itself.

ing some risks at
ink Presidents
probably would
simply being in-
that it is some-
nts have to deal
with themselves to
make those risks,
me up and say
it had doggone
as in the case of
eventually sup-
of Presidents can

e reasons for the
g way or another.
ess to come back
at "Well, it didn't

an example. Presi-
dence of the San-
ctor in the hemi-
ing U.S. interests.
priority, in order to
by I am going to

Support of the Con-

Is Resolution?
Last asking whether
itution, as you see
the situation in
regnum period, be-
involved; indeed
various capacities—
ous problem if the
had amassed in and
ar, would the Presi-
event that from oc-

really simple.

But first, do you all agree with that?

General VESSEY. There is a question between authority and good judgment.

Senator BIDEN. I agree. But I am only talking about authority. I am not talking about good judgment. I am talking about authority.

The reason I pursue this is because I think it is important that it
be clearly stated here that the extension of the use of military
power under your reading of the Constitution—meaning you, col-
lectively—if the President, in his wisdom or lack thereof, deems
that the interjection of American forces into hostilities as a means
of preventing a wider conflict, as a means of preventing a larger
war, has the authority to do that. This is a fundamental disagree-
ment.

I don't think even Professor Corwin was talking about that. He was talking about the ability to determine the conduct of foreign policy, not, in effect, what is a clear war situation, whether it is a declared war or otherwise.

Anyway, my time is up. I have many more questions, however.

General VESSEY. I think it is important to add, Mr. Chairman,
that the President clearly also has to come back and get the sup-
port of the Congress.

You see, I guess the reason why some of us are both dissatisfied
with the War Powers Act and also see a need for a War Powers
Act—that is a category in which I put myself—is because condi-
tions have changed so drastically in the world over the last 40
years in how wars are made and the potential consequences of
making war, even small wars. We find ourselves in a position
where once a President makes a commitment of consequence, it is
almost impossible in the short run to undo that commitment.

We get the double whammy, Generals. I have been here a long
time now and served in the Intelligence Committee for a number of
years. I think I served there longer than anybody who has served
in the Senate.

What would happen is, if the President makes a commitment,
wisely or unwisely, and it turns out, after the fact, to have been
unwise, the argument then is Biden, you can't undercut the Presi-
dent now. We've made a commitment. America's honor is at stake.
There are 5, 10, 50,000, 70,000, 100,000, 500,000 American boys out
there, Biden. You've got to protect them.

So, we all know that once the President makes any kind of major
commitment, in the near term it is almost impossible to change
that.

I believe that that is what used to be envisioned as a declaration
of war, and I thought the Constitution said that the Congress had a
role to play in that. But I will not pursue that right now and will
yield to my colleague.

General SCOWCROFT. Mr. Chairman, if I may deal with that, I don't think the War Powers Act deals with that in any way. The President still can do whatever he could do before for 60 days.

The War Powers Act only forces him to terminate at a certain
time. It does not prevent whatever his constitutional powers before
were. He could notify the Congress that he is sending troops to

93-280 - 89 - 5

124

Poland to protect the freedom fighters, or for whatever reason you pose.

Senator BIDEN. That is absolutely correct, and that is where you talked about the consultation period.

One of the potential amendments I am considering drafting to the War Powers Act would set up a mechanism for consultation similar to that required in the Intelligence Act, which, notwithstanding public opinion, has worked much more than it has failed.

Do you know why?

You'd have somebody come up and sit there in front of us with some harebrained scheme that was signed off on, and he would find that there was an allegiance between Barry Goldwater and Joe Biden looking at him, saying "What? You're kidding. You're really going to do that? Are you guys crazy? What's going on here?"

Barry would use more colorful language than I would. But, nonetheless, that would be said.

It has an interesting, salutary effect on actions.

I could point out a number of circumstances under which approved intelligence actions were either withdrawn and or modified because somebody said "Whoa, wait a minute."

One of the purposes of this Act was to be in a position where events do not overtake what is sound judgment.

Strangely enough, the War Powers Act has worked in one way.

Although I have never been President, I would imagine that every President since the Act has been in force has sat there at some point and said to "you guys" in various capacities, he has sat there and said: "Can I do this? Am I going to get myself in a legal jam doing this? What's going to happen here? That War Powers Act, what is that going to do? How is that going to affect this. Are we going to have to go around this?"

I'll bet you that some initiatives were dropped merely because of the existence of that Act, sitting up there.

I may be wrong. But I'll bet you that at least it made people think a little bit more.

I yield to my colleague.

Senator PRESSLER. Thank you.

One area that I want to explore with these three military experts is military planning, both on our side and on the side of our potential enemies.

The War Powers Resolution provides that after the deployment of U.S. troops in certain circumstances, Congress must be notified. However, the Act also provides that, within days of the Presidential notification, troops must be withdrawn unless Congress provides specific authorization to the contrary.

Does the threat that the War Powers Resolution may be invoked adversely affect our military planning in any way?

How does the requirement for congressional authorization following a Presidential notification affect military planning?

I will address those to each of the three of you for any comments you may have.

General JONES. I really do not believe the War Powers Resolution had any conscious impact on war planning at all—the planning, the contingency plans, East-West plans, a lot of different

125

ever reason you

hat is where you

ering drafting to
for consultation
which, notwith-
than it has failed.

front of us with
on, and he would
ry Goldwater and
the kidding. You're
What's going on
would. But, none-

under which ap-
n and or modified

a position where
worked in one way.
would imagine that
he has sat there at
pacities, he has sat
et myself in a legal
That War Powers
g to affect this. Are
d merely because of
least it made people

e three military ex-
d on the side of our

after the deployment
ess must be notified.
ays of the Presiden-
unless Congress pro-

ation may be invoked
way?

authorization follow-
planning?
for any comments

War Powers Resolu-
ting at all—the plan-
ns, a lot of different

planning. It would be in their execution that there would be discus-
sion, but not in the preparation of plans—at least in my experi-
ence.

General VESSEY. I think that's right.

There are two sorts of activities that we are concerned with. One
is the sort of prevention of war and the other is the war plans
themselves.

Our war plans today involve combined action with allies almost
completely. Those plans assume that once they are executed, we
will have support for those plans, and it would be an absolute dis-
aster withdrawing from Europe, for example, within 60 days after
a Soviet attack.

I have looked down the list of the other 35 or so incidents when
Armed Forces have been deployed since the War Powers Resolu-
tion has been enacted, and I do not believe that the War Powers
Resolution had any impact on the planning for any of those.

Now, admittedly, they were all rather small actions. But I don't
believe that it impacted the planning at all.

General SCOWCROFT. I would agree with my colleagues.

Senator PRESSLER. Now, do you believe that our adversaries have
changed their military planning any because of the existence of the
War Powers Act? Does any of you have any thoughts on that?

General JONES. I doubt they have changed their plans. I would
guess that it is considered more in a tactical operation, a specific
incident, trying to promote controversy within our society, but not
a change in plans.

General VESSEY. I would echo that. I think it gives them an open-
ing that I find uncomfortable, for them to try to drive wedges
inside the American body politic and get support from the Ameri-
can people for their planned actions.

Senator PRESSLER. You have already stated that the Congress has
the authorization and appropriation power to deal with some of
these questions already under the Constitution. But if we were to
repeal the War Powers Act, it seems to me that Congress has
plenty of avenues where, if they really disagree with what the
President is doing, they could make life pretty miserable over
there.

Let's say that the Congress did repeal the War Powers Act, or
that it did not exist, and the President did something that the Con-
gress clearly disagreed with—he invaded Mexico, or something, for
ballot fraud, something that Congress was absolutely in disagree-
ment with—what steps could the Congress take, from your point of
view, from your observations? What would you expect Congress to
do if it really disagreed with the President, without the War
Powers Act?

General SCOWCROFT. I would expect, if they really disagreed, that
they would pass legislation that would say that no moneys appro-
priated under whatever acts could be used to prosecute activities
against the state of Mexico.

General VESSEY. As they have done in the past.

General SCOWCROFT. Yes.

Senator PRESSLER. And that could be done very quickly. It could
be done in a day; could it not?

General SCOWCROFT. Yes.

126

General VESSEY. As I recall, when I was sent to Laos to coordinate military operations there, the Symington amendment was imposed, restricting support for operations in Laos to $250 million a year, and half the year had already gone by and most of the $250 million had already been spent. It made for a very interesting year, trying to figure out how to stay within that $250 million.

General SCOWCROFT. There were several of those—the Symington amendment, the Cooper-Church amendment. There were several like that.

Senator PRESSLER. Yes.

The point has been raised here that because of this complicated statute which is in existence, maybe it has made Presidents think more deeply about what the consequences might be. Maybe in some instances a President has not done what would be in the interest of the country because of this complicated statute.

You could use that argument both ways. Let me ask you this. During the Persian Gulf operations, there was a lot of growling around up here on the Hill. But the War Powers Act was never acted on by Congress or never invoked. I think Congress, both sides, Republicans and Democrats, sort of wanted to have a certain amount of cover. Everybody was raising questions about it.

How would Congress' reaction to that have differed if the War Powers Act did not exist? Do some of you have some analysis of the Persian Gulf thing?

General VESSEY. I don't think it would have changed. General SCOWCROFT. I doubt it. You know, especially at the outset, it was a controversial action, and I think the grumbling would have gone on whether or not there was—well, yes, there was an added aspect to it. This is that it seemed, clearly from the terms of the Act, that forces were going into an area where hostilities could quite likely take place. That I think added to the acerbity of the grumbling.

Senator PRESSLER. Yes. What I'm trying to get at here are what are the results of the War Powers Act having been in existence. Have we not engaged in some activities that we would have engaged in, in your judgment?

Since it has been in existence, has U.S. policy been any different because of it? Have Presidents been more cautious, or more bold?

General SCOWCROFT. I guess I would have to say that it has had virtually no impact. Presidents do not take decisions about moving forces into areas of possible conflict or into conflict lightly. Certainly consultation is important. But I don't think that it makes the difference between a President doing something harebrained and doing something responsible.

The only specific time that I can remember the War Powers Act made a difference was when we were evacuating Embassy people, Americans, from Lebanon in 1976, and there was a big debate about whether the sailors on the landing craft could carry rifles or could carry pistols, and would either one of those trigger the War Powers Act.

Senator PRESSLER. There seems to have been a great deal of debate. There have been debates about what the meaning of "imminent hostilities," and so forth.

But, in terms of a c
involvement, I do not
anything, except that
cussion.

It seems to me that
under the appropriat
to quickly if it wants to
hours.

I just wonder if we
something that is va
do by having a vague st
more cautious. But
way and maybe you
it strikes me that
changed history, the
done, and that is ver
I take it that the
that.

General SCOWCROFT. Sultation because P forced aspect behin do this and they ha Therefore, the kind may be inhibited be

Senator PRESSLER.
General SCOWCROFT.
General JONES. C
and questions such
there is a lack of
President within
straints of being a
manner. President.

I have worked for Joint Chiefs of Staff within the Government that was half-cocked, with a veryble. This is not the extent that perhaps

I think it is in
different parties,
is counterproduct
sions, counterpro

I would bet, no
into that Oval O
and I think so v
gress.

I would hope
new President a
policy and a rec
and by the Cong
the War Power
been so contro

But, in terms of a change in policy or in terms of Congress' real involvement, I do not see that the War Powers Act has changed anything, except that it makes for a lot of debate and a lot of discussion.

It seems to me that that same debate and discussion could occur under the appropriations process. Indeed, Congress can act pretty quickly if it wants to on something. It can act within a matter of hours.

I just wonder if we are not cluttering up a very good system with something that is vague. I guess one could use the argument that by having a vague statute, it confuses everybody and makes people more cautious. But you could use that same argument the other way and maybe you can hide under a vague statute.

It strikes me that we have created something here that has not changed history, that causes us a lot of problems in getting things done, and that is very cumbersome. That is my general assessment.

I take it that the three of you, generally speaking, would share that.

General SCOWCROFT. I suspect, Senator, that it may inhibit consultation because Presidents, by and large, take umbrage at the forced aspect behind the War Powers Resolution, that they have to do this and they have to do that, when they do not think they do. Therefore, the kind of voluntary coming forward with consultation may be inhibited because of this.

Senator PRESSLER. They may well do more.

General SCOWCROFT. Act more unilaterally.

General JONES. Going back to the bigger point on the use of force and questions such as going into Mexico or into Poland, I think there is a lack of appreciation for what constraints are on the President within the executive branch, both the physical constraints of being able to move forces and get them there in a fast manner. Presidents do not act in a vacuum.

I have worked for the last four Presidents as a member of the Joint Chiefs of Staff and, in every case, there was a good discussion within the Government on use of force. There are constraints within that that would prevent a President going off half-triggered, half-cocked, with something that is going to get us deeply into trouble. This is not to say that everything is thought through to the extent that perhaps it should be.

I think it is important to note that four Presidents, of the two different parties, have all agreed that the War Powers Resolution is counterproductive. It is counterproductive to promoting discussions, counterproductive to the role of the Congress in the Act.

I would bet, no matter which candidate is elected, when he gets into that Oval Office, he will feel just like the last four Presidents, and I think so with due regard to the responsibilities of the Congress.

I would hope that, after January 20, you could sit down with a new President and try to embark on more of a bipartisan foreign policy and a recognition by the President of the role of Congress and by the Congress of the role of the President. Somehow, putting the War Powers Resolution aside or get rid of it because it has been so controversial and has not worked. Why not start with a

coordination and $250 a year,

Washington, several

plicated issues think in some interest of

isms, there the War invoked. It is, sort of, raising

if the War lysis of the

ally at the grumbling is, there was from the terms the hostilities the acerbity of

results of the not engaged in your judgment? - any different or more bold? What it has had to do about moving lightly. Certainly it makes the arebrained and

War Powers Act Embassy people, as a big debate id carry rifles or trigger the War

a great deal of meaning of "im-

127

128

new slate, saying we're going to protect the interests of the President and protect the interests of the Congress.

I think you could make some progress in that regard.

Senator PRESSLER. The Act sort of assumes a very adversary relationship; does it not? It creates an atmosphere that is almost like having a lawyer and a group of legal rules to talk with your colleagues or something like that. It perhaps creates more tension between the Congress and the President in certain circumstances than would otherwise be.

Would that be your judgment?

General JONES. Yes. In most cases, the discussion was on a decision to do something. Then, at the end, what should be done about the War Powers Resolution? How do we make sure that it does not cause us a problem, that it does not get implemented. Therefore, it was decided to send a letter saying the action was consistent with the War Powers Resolution.

I think the attitude was not that the Congress has a role to play and let's bring them on in. It was how do we make sure that we don't trigger the War Powers Resolution.

I think the Resolution is counterproductive to promoting a dialog between the executive and the legislative branches of Government.

Senator PRESSLER. This will be my last question, Mr. Chairman.

Do you see a circumstance where, for example, in Panama or in some country, if the lives of American citizens were endangered in the President's judgment, he might hesitate to act because of the War Powers Act?

General JONES. I don't think so.

General SCOWCROFT. [Nods negatively.]

General VESSEY. [Nods negatively.]

Senator PRESSLER. Thank you very much, Mr. Chairman.

I have some more questions for the record, and I will submit them for a response.

Senator BIDEN. Thank you.

Gentlemen, I was checking on the author of the quote that the trouble with Christianity is not that it has failed, but that it has never been tried. G.K. Chesterton said it.

I would say the same about the War Powers Act. It has not failed; it has never been tried.

Let me make one closing comment with the three of you here.

It seems as though something perverse has occurred over the last 30 years. Everyone has written, and I suspect most of you would subscribe to the notion, that a declared war occurring again, ever, is highly unlikely, and the argument is being made that the only time the Congress can have anything to do with whether or not forces are deployed is if there is a declared war.

What we are saying is that Congress can stop an action after the fact by dealing with the appropriations process. Congress can also stop a President from violating the Constitution by impeaching him. That is roughly the same thing. It represents the use of an extremely blunt, negative instrument. It does not represent any king of joint decision-making.

Now, if we agree that there are going to be no more declared wars, then what does the Congress do to meet the intention and requirements of the Constitution? You are all saying, it seems to

me, that the only thing it does not like that it

General SCOWCROFT.

Let's take the Gul about what we ought the Congress felt str have prevented the us naval forces to the P that it chose.

Senator BIDEN. But of Nicaragua, which

General SCOWCROFT of Nicaragua tomorrow of any appropriated f

Senator BIDEN. We could pass legislation President, other than thority to use United States, and just work out an ample, and just work out That's what you are to do.

General SCOWCROFT. stitution says.

Senator BIDEN. What can declare war? What

General SCOWCROFT. land about the change "make war." That was a war," that a state of war,

That is a legal cond

Senator BIDEN. Oh, I did.

General SCOWCROFT. with the fundamental unilaterally make war.

Senator BIDEN. But I did.

General SCOWCROFT.

is not going to work unless the people, and that is

Senator BIDEN. What laterally declare a war? But you are saying that war—bombs going off, because that does not mean

General SCOWCROFT.

Senator BIDEN. Forget that we don't have the

I'm just trying to un means.

General SCOWCROFT. I think the authority to repel an tion does not say that.

Senator BIDEN. That's all right.

General SCOWCROFT. T

129

the Presi-

ersary rela-
most like
your col-
tension be-
cumstances

s on a deci-
done about
it does not
Therefore, it
consistent with

a role to play
sure that we

oting a dialog
Government.
Mr. Chairman.
Panama or in
endangered in
because of the

airman.

d I will submit

quote that the
but that it has

Act. It has not
of you here.
over the last
you would
again, ever,
that the only
other or not

action after the
Congress can also
by impeaching
the use of an
not represent any

no more declared
the intention and
saying, it seems to

me, that the only thing it can do is be reactive and stop wars that
it does not like that the President has started.

General SCOWCROFT. I think that is not true.

Let's take the Gulf, for example. There was a lot of discussion
about what we ought to do in the Gulf before forces were sent. If
the Congress felt strongly about the issue, it could prospectively
have prevented the use of any appropriations for the deployment of
naval forces to the Persian Gulf, or under any kind of restriction
that it chose.

Senator BIDEN. But it could not, prospectively, stop the invasion
of Nicaragua, which you have said he would have authority to do.

General SCOWCROFT. Of course it could. It could stop the invasion
of Nicaragua tomorrow by the same device—by preventing the use
of any appropriated funds for troops in or around Nicaragua.

Senator BIDEN. Well, maybe the way it could do it, then, is it
could pass legislation taking the whole globe and declaring that the
President, other than to defend, to repel attack, does not have au-
thority to use United States forces, and start with Mexico, for ex-
ample, and just work our way down, all the way to Eastern Europe.
That's what you are telling me?

General SCOWCROFT. Mr. Chairman, I think that is what the Con-
stitution says.

Senator BIDEN. What did it mean when it said only the Congress
can declare war? What did it mean by that?

General SCOWCROFT. Well, I take a different view from Mr. Lake-
land about the change. The original change was only Congress can
“make war.” That was changed to only Congress can “declare
war,” that a state of war does, in fact exist.

That is a legal condition.

Senator BIDEN. Oh, I see.

General SCOWCROFT. I think we are dealing with legalities, not
with the fundamental premise, and that is that a President cannot
unilaterally make war.

Senator BIDEN. But he sure can.

General SCOWCROFT. He can get us engaged in hostilities, but it
is not going to work unless he has the support of the Congress and
the people, and that is what the Constitution is trying to do.

Senator BIDEN. What you are saying is the President cannot uni-
laterally declare a war, because that requires a legal instrument.
But you are saying that he can have all of the accoutrements of
war—bombs going off, troops being deployed, people being killed—
because that does not require a legal instrument.

General SCOWCROFT. The War Powers Act permits all of that.

Senator BIDEN. Forget the War Powers Act now. Let's assume
that we don't have the War Powers Act.

I'm just trying to understand what you think the Constitution
means.

General SCOWCROFT. Mr. Chairman, why does the President have
the authority to repel attacks on the United States? The Constitu-
tion does not say that.

Senator BIDEN. That's the distinction between “make” and “de-
clare.”

General SCOWCROFT. That's war?

131

Powers Resolution would make would be this: "Mr. President, you have full authority, constitutional authority, to go into Poland, but you'd better get it over with in 62 days."

Senator BIDEN. But you know, that was the strongest argument against the War Powers Act when we were debating it, by those who thought there should be some limitation on the President but were worried that we were implicitly giving him a power he did not already have.

Anyway, I thank you all for your input and I appreciate your consideration in going second and not first.

Mr. Emerson, I particularly thank you for your indulgence. I hope you can bring light and wisdom to everything that has been said.

As I indicated, Mr. Emerson was a close adviser to Senator Barry Goldwater in the effort with the Nixon administration to take issue with the Act in the first instance.

We are delighted to have you back. Thank you again for waiting. If you have a statement, please proceed.

## STATEMENT OF TERRY EMERSON, FORMER COUNSEL AND LEGISLATIVE ASSISTANT TO SENATOR BARRY GOLDWATER

Mr. EMERSON. Mr. Chairman, I ask if you would submit my pre-pared statement for the printed record, if there is a printed ver-sion, and I will just make some extemporaneous remarks.

You used a quotation. I would like to offer a quotation, too. It came to my mind as the debate went on, and the questions were asked this morning.

The quotation is by my namesake, Ralph Waldo. He wrote, "Foolish legislation is like a rope of sand. It breaks in the twisting."

I think that applies to some of the experience with the War Powers Resolution.

Senator BIDEN. He also said "Foolish consistency is the hobgoblin of little minds, adorned by petty statesmen and divines."

Mr. EMERSON. Yes, very good.

Senator BIDEN. Believe it or not, I do know who I quote most of the time. I just forget on occasion. [Laughter.]

Mr. EMERSON. Mr. Chairman, my comments reflect what was a small minority view of the time. I have the last report of the Senate Foreign Relations Committee on the last version of the War Powers Resolution, and it notes in it that there were 20 witnesses speaking in favor of the last version, and there were only 4 wit-nesses who appeared in opposition, and Senator Goldwater was 1 of those 4.

Then, on the final vote to override President Nixon's veto, there were only 17 Senators, I believe, who supported the President's po-sition.

So, I would make note that we were reflecting a very small, mi-nority, position at that time.

I do feel that it is obvious the War Powers Resolution was en-acted in an atmosphere of grave concern by Congress about what the majority of Congress felt was the unconstitutional military ac-tivities in Vietnam, and also it occurred, enactment of the War

that is like the sky the folks are in-wn with rage any no time ians are

you are in-caragua.

that the we have is, American

of the force

ed wars and been engaged

going to see if we do f we are suc-llaring war at

restrict Pres-forces, in how ratification of the use of

out is if I were to know, I really think it is a propitious both in Poland and I turn to ional authority kinds of questions. the authority to

craft from "make" it, so that the Con-

the President? practical ones, yes. say "Can we do it,"

I would be confi-

t you were making a difference in the War

160

leader of your party in the House of Representatives, and as President of the United States.

You were the first President to use force abroad after the enactment of the war powers legislation, and I know you have a strong and well-considered view about it.

Let me express on behalf of the chairman of the full committee his sincere regrets in not being able to be here today. Senator Pell is attending a funeral, but was concerned that I declare his gratitude for your contribution in appearing before the committee to offer testimony and the benefit of your years of leadership in both the Congress and the White House.

If any of my colleagues have statements, I would ask that they be brief, because our time is limited.

Senator HELMS. I suggest we all forgo our statements. We all welcome you here, Mr. President.

President FORD. Thank you.

Senator ADAMS. We would like to say welcome, those of us who didn't get the chance to see you in the back, Mr. President. It is good to see an old friend.

Senator SARBANES. Mr. Chairman, I would just like to say I had the privilege of serving with President Ford in the House of Representatives, and I also served on the Committee of the Judiciary when we applied the 25th amendment which took him away from the House and made him the Vice President of the United States, and then, of course, subsequently the President of the United States. We are very pleased and delighted to have him here today.

Senator BIDEN. Mr. President, welcome, and proceed in any way you see fit.

## STATEMENT OF HON. GERALD FORD, FORMER PRESIDENT OF THE UNITED STATES

President FORD. Well, Mr. Chairman, and members of the subcommittee, it is a very high honor and a very great privilege for me to return to Capitol Hill. I have nothing but the fondest memories of my service both in the House and for a limited period of time as Vice President, presiding officer of the Senate. I repeatedly say, as I travel around the country and get asked questions about Washington, I have the highest admiration, the greatest respect, as well as fondness, for the legislative branch. I truly treasure and cherish my many, many friends in both the House and Senate, both Democrats and Republicans. So, it is a bit nostalgic, to be honest with you, to come back to Capitol Hill where I spent 25½ years, years that I really feel most strongly about. And I am grateful for the very warm and cordial welcome of you and the members of the committee.

I apologize at the outset, Mr. Chairman. I have no prepared text, and if I have violated the rules of this subcommittee or committee, I am embarrassed.

Senator BIDEN. As far as I am concerned, Presidents can set the rules. [Laughter.]

President FORD. Thank you.

I do, however, look forward to the opportunity for questions and answers.

Pres
Ford on
War
Powers
Biden
(mid-1988)

So, this went to conferral. And any telephone conversation, I hope, was of the telephone. But I think it was a good telephone discussion. I was very pleased to be able to talk with you, and I hope that we can continue this good telephone discussion for a long time to come.

161

So, there is no misunderstanding on the part of any members of this group, I voted against the War Powers Resolution when it went through the House of Representatives. I voted against the conference report, and I also led the fight and voted to sustain President Nixon's veto. So, my feelings are quite clear and on the record.

And I should add, Mr. Chairman, my views have not changed. If anything, I am in firmer opposition to the so-called War Powers Resolution today than when I was in the White House or when I was in the Congress.

I opposed it initially because I happen to believe that it was probably unconstitutional because of the so-called legislative veto provision. I also believe that it violated the separation of powers between the executive and the legislative branches. The *Chadha* case probably would confirm the feeling that I have that it is unconstitutional, at least in that part of the proposal.

Second, I have long felt that the War Powers Resolution was impractical. As all of you know, as well if not better than I, the provisions call for notification, for consultation, for reporting. It is my judgment, based on some practical experience, that it is impractical to try to go through those steps if and when a President is faced with a very serious military and or foreign policy decision. I will speak more about it later.

But while I was in the White House, we had at least four and possibly six instances where you might argue that the War Powers Resolution was effective. Actually, I never conceded that the facts did fall under the umbrella of the War Powers Resolution.

But the first was the operation of evacuating military and civilian personnel and others from Danang in April 1975. The second was the evacuation of civilians and military and others from Phnom Penh in Cambodia in April 1975. The third was the tragic withdrawal of all—as many as we possibly could—of our military civilians, as well as allies, from Saigon in April 1975. And the fourth one was the *Mayaguez* incident which happened in May 1975. There is no question that at least we tried to report within the consistency of the Resolution although we never conceded that what we did fall under that umbrella.

Now, there were two other instances that you might have argued that the War Powers Act was applicable, the two evacuations of civilians and military at the time of the Lebanese withdrawal in I think it was June 1976.

Now, let me give you an illustration of why I think there is some impracticality of the War Powers Resolution. When we had the evacuation of Danang in April 1975, Congress was in a congressional Easter recess. Not one member of the key bipartisan leaders of Congress was in Washington. Without mentioning names—and this is part of a speech that I periodically make on the War Powers Resolution—here is where we found the leaders of Congress. Two were in Mexico. Three were in Greece. One was in the Middle East. One was in Europe, and two were in the People's Republic of China. The rest were found in 12 widely scattered States of the Union.

Now, this one might say was an unfair example because Congress was in recess. But I hasten to add that critical world events, especially military operations, seldom wait for the Congress to

162

meet. All I am saying is there are practical problems about the
War Powers Resolution as to notification and consultation particu-
larly.

Now I am going to make another statement that I am sure will
be challenged, but I firmly believe it. I happen to believe that the
War Powers Resolution undermines the capability of a President to
achieve or to maintain peace.

Now, I say that because as long as that legislation is a potential,
and certainly if it were operative, it gives to our adversaries some
encouragement to nip away at us, to threaten us, and so forth. I
really believe that that legislation is harmful in this particular
area.

Now, I know also one of the proposals that in good faith was a
part of the War Powers Resolution was to enhance good relations
between the executive and legislative branches. I happen to think
that is mandatory if we are to be successful in either diplomatic or
military operations. I see no evidence that the War Powers Resolu-
tion over the period of time has enhanced cooperation between the
executive and the legislative.

And I honestly believe the heyday of U.S. foreign policy was the
period right after World War II when we had both Presidents
Truman and Eisenhower and we had mainly Democratic Congress-
es, but one Republican. The relationship between the White House
and Congress in those days on foreign policy and military decisions
was at its highest point. And I think it happens to be one of the
most successful eras in American foreign policy. And all of that
took place and transpired without the War Powers Resolution
being on the books.

Now, let me go on, if I may. Since November 1973 when the War
Powers Resolution was approved over President Nixon's veto, it is
my understanding there have been 19 occasions where three Presi-
dents, myself, President Carter and President Reagan, have report-
ed. I reported on 4 occasions, President Carter on 1, and President
Reagan on 14.

But the truth is in the 15 years of the war powers legislation, it
has never been implemented. Never. It's a dormant piece of legisla-
tion for all intents and purposes. So, I think that is further evi-
dence it ought to be repealed. And I strongly think it ought to be
repealed.

And I must say that I recognize that as highly unlikely, but if it
were repealed, it would still leave Congress with its traditional au-
thority over foreign and military policy. For example, your House
and Senate committees that have jurisdiction would have oversight
and those committees, of course, include Appropriations, Armed
Services, Foreign Affairs, Foreign Relations, Government Oper-
ations, and I assume the Intelligence Committees would also have
some jurisdiction. So, there is plenty of opportunity for legitimate,
bona fide oversight as far as foreign and military policy is con-
cerned.

But even more importantly and probably more effectively would
be the capability of the Congress to restrict funds from military op-
erations precisely as it do so often, so frequently, during the Viet-
nam war. I can vividly recall—I was the Republican leader at the
time—the legislation that would be put on an appropriation bill

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164

tion certainly in this century of foreign and military policy in the days immediately following World War II and up through, we'll say, 1960. The cooperation between Presidents Truman and Eisenhower and the cooperation of people like Senator Vandenburg as a Republican with Truman and Sam Rayburn as a Democrat with Eisenhower was phenomenal. And I happen to believe that was the best period of U.S. foreign policy certainly in this century.

I think it has disintegrated since then primarily because of the lack of cooperation and the lack of mutuality, comity, whatever you want to call it, between the White House and the Congress. And I think it is tragic.

In my judgment Presidents are hesitant in the atmosphere that exists today and that existed when I was there to utilize the law or piece of legislation that they are hesitant because it somehow tends to constrict them and decisionmaking by them. It is an apprehension more than probably a reality.

Senator BIDEN. I agree with you that the heyday of bipartisanship in foreign policy was at the period you have stated. But I would argue that the reason it was is everything from the Marshall plan on through the—

President FORD. Greek-Turkish aid.

Senator BIDEN [continuing]. Was because the President didn't do any of those things. He didn't initiate any of them without first coming to the Congress, explaining in great detail, and getting co-operation ahead of time. That is why I would argue it existed. I may be wrong about that.

President FORD. I would argue a bit there. I don't think President Truman came to the Congress before he made the decision to proceed with the war in Korea.

Senator BIDEN. That is true. In fact, that's where things began to go wrong.

President FORD. I was in the Congress in my first term, and it was shocking. I happened to support him right from the beginning because I thought he was right.

But I think that case illustrates the point. Here was an invasion by North Korea of South Korea. I think it occurred on a Sunday, if my memory is correct. President Truman acted forthrightly, went to the United Nations, got their approval. As far as I know, he never had any consultation because of the urgency of the situation.

Senator BIDEN. I would agree, Mr. President. You are correct. There was, of course, was an international body—the UN—that stood with the United States. But it was also, I believe, the first time where the President, all on his own, initiated a significant military action that would have serious foreign policy consequences and asserted his right to do so.

Since I was here when the War Powers Act was initially enacted, I have always viewed it as the President's act, as strange as that sounds. I viewed it as an act that the President could easily utilize to do what I hoped would happen and believe needs to be done, and that is to begin to bring together at the front end a bipartisan foreign policy.

I think you mentioned Vandenburg. I think it was Vandenburg—I may be mistaken, and please correct me if I am wrong—who said

165

to a President "If you want us in on the landing, Mr. President, make sure we are there on the takeoff."

President **FORD**. He said that.

Senator **BIDEN**. And that is what we are talking about.

President **FORD**. I can only reiterate. I believe Presidents feel that this is a basic constitutional encroachment, and they are hesitant to use something that may by their utilization create a precedent that would be a serious problem down the road. Now, I think the Presidents I have known felt that they could achieve the job better without the pressure of the War Powers Resolution by proper notification, consultation.

I as Republican leader can remember the instances where I, along with others, Democrat as well as Republican, were consulted by President Johnson. I can't recall how many joint leadership meetings were held in reference to the war in Vietnam and the action that President Johnson took in the Dominican Republic. There may have been several others.

Presidents, as far as I know, have always tried to be as cooperative as possible. I know there are instances where there will be a difference of opinion, but to the extent that I know, they have tried to be.

Senator **BIDEN**. Mr. President, I have a number of additional questions, but I will yield now to my colleague, Senator Pressler.

Senator **PRESSLER**. Thank you very much.

Mr. President, had I made an opening statement, I would have said that I think our country would have benefited from your re-election some years ago, but that did not come to pass.

But let me say that I agree with you very strongly. I have said here that I think we should repeal the War Powers Act, and in fact if we ever get some legislation to the floor, I shall try to get a vote on that. I would say it probably won't pass. So, realistically we are probably faced with keeping it as it is or making some adjustments in it, although I certainly agree with you that it would be healthy to repeal it entirely. I think there is sufficient power in the appropriations process and elsewhere for Congress to express.

Let me ask you this. Was there ever a moment in your Presidency when you did something different in foreign policy because of the existence of the War Powers Resolution, or was it merely a bothersome hindrance in carrying out what you wanted to carry out?

President **FORD**. I cannot, Senator, recollect any instance where I would have done anything differently without the War Powers Act there. I did what I felt had to be done, and as I said a moment ago, we did not concede that the War Powers Act was involved, and therefore what I did was done without any interference by the War Powers Act.

Senator **PRESSLER**. Do you know of any moments in any Presidencies lately when you think our foreign policy or the activities of the President in carrying out policy would have been different? Has the War Powers Act changed anything is what I am trying to say in substance?

President **FORD**. Well, in the 19 cases that I have looked at where, as I understand it, Presidents have reported under the War Powers Act, saying what they did was consistent with the Act, but

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166

not admitting it was applicable, I don't see where Presidents would
have done anything differently; no.

Senator PRESSLER. Now, the rapid deployment force that we
have—does it make sense to have a rapid deployment force if we
also have a War Powers Resolution, and how are the two related in
your judgment?

President FORD. Well, there is no question. I don't think we
should have the War Powers Act, period. So, I think we certainly
need the rapid deployment group, and that organization ought to
be ready, willing, and able to perform what the Commander in
Chief says is needed in the best interest of the United States. That
group ought to exist even with the War Powers Act because in my
judgment you have to have that kind of a military organization,
period.

Senator PRESSLER. Now, when you were President you had to
consult with congressional leaders in a structured way on a wide
number of issues. In terms of security, in terms of keeping it away
from the press, in terms of keeping it away from the enemy ulti-
mately, would there have been any way you could have thoroughly
consulted without calling them all back to Washington? It blows
the cover. How did you feel about consulting, about that require-
ment?

President FORD. Well, because of my own experience in the Con-
gress, I have always felt very strongly that Presidents ought to con-
sult as often and as frequently as needed. And I think I bent over
backward in that regard.

But there are practical problems. The illustration I gave at the
time of our evacuation of Danang, Congress in congressional recess.
Legitimately Members are traveling all over. But we had a prob-
lem. We had to evacuate U.S. military personnel, civilians, as well
as allies. And we had to commit U.S. military personnel for that
undertaking. So, it wasn't easy to notify. I guess notification would
have been easy, but certainly consultation would have been diffi-
cult.

Senator PRESSLER. Now, as I understand, one of the proposed
amendments being considered provides for consultation with six
congressional leaders. Others have suggested a larger number of
leaders. As a practical matter, we are not going to be able to repeal
this War Powers Resolution. I would like to be able to, and I am
going to make a motion to repeal it if we ever get around to legis-
lating on it.

With that being said, how can we improve it legislatively?

President FORD. Well, based on my reading of the Senate Joint
Resolution 323 I believe it is, I approve of those changes. I think
the firming up of the consulting group is better than the language
in the original act which says, as I recall the President must con-
sult with Congress. That is 535 Members. I like the idea of six.

Second, I approve of the process whereby the group of six with a
majority vote can ask for the larger group.

And I strongly approve getting rid of the nonvote provision that
forces the President to withdraw forces if Congress in 60 or 90 days
can't get around to either approving or disapproving the action of
the President.

Those are the basic one
joint resolution from the
the right of veto.

Senator PRESSLER. That's
Senator BIDEN. Thank you,
Senator Sarbanes.

Senator Sarbanes.

Senator SARBANES. That's
Mr. President, I wanted

that was raised by Chair
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And I can see a President
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President FORD. Well, if my
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["167", "Those are the basic ones that I strongly feel, plus the change to a\njoint resolution from the concurrent resolution so the President has\nthe right of veto.", "Senator PRESSLER. Thank you, Mr. Chairman.", "Senator BIDEN. Thank you very much.", "Senator Sarbanes.", "Senator SARBANES. Thank you very much, Mr. Chairman.", "Mr. President, I wanted just to pursue for a moment a subject\nthat was raised by Chairman Biden. I can understand a President\nresisting the Congress when the Congress says, \"Well, before you\ncommit forces, you should obtain advance congressional approval.\"\nAnd I can see a President arguing an emergency situation where\nthat is not possible. The example you cited of leaders dispersed\naround the world which made consultation in the circumstance\nvery difficult. That poses some problems that one has to address as\nthey consider the use of force.", "What is more difficult for me to understand is why a President,\nonce he has committed the forces on the basis of making the judg-\nment that the situation requires that, and then not wanting to\ncome to the Congress to say, \"I have committed these forces. I made\nthe judgment that that was necessary for the Nation's interest, and\nI am now putting the question to you, Congress, to either support\nme or to indicate that you don't believe that should be the national\npolicy.\"", "Now, I think as a general proposition, once that has been done,\nthe Congress will probably be supportive. My own view is that it\nprobably would not be only in a most extreme situation where it\ncould be argued that the President has made a very bad judgment.", "If the question were put and he received that answer from the\nCongress, then you have both branches of the Government in\nagreement on what the policy should be which seems to me to con-\nstitute a stronger national support of consensus behind what is\nbeing done.", "I am sort of probing to find what the reluctance is to take that\nstep. I want to leave aside for the moment the situation when Con-\ngress approves ahead of time. And we may differ on that—execu-\ntive and legislative—and that needs to be worked out. But what is\nthe problem with having done it and then saying, \"Well, now the\nNation would really be strengthened if it was clear that this was a\npolicy supported by both branches of the government\"?", "President FORD. Well, if my memory is correct, that is in effect\nwhat President Truman did after he made the commitment in\nKorea and operated under the umbrella of the United Nations.\nThat doesn't mean that everybody in the Congress was supportive,\nbut we never had the disintegration of congressional support\nduring the Korean war that we had during the war in Vietnam.", "But if my memory is accurate, President Truman always came\nbefore the Congress in his State of the Union or other proposals\nand said I have done this. I need your help. It is in the national\ninterest, and eventually we were successful in that area.", "Now, again I believe that the Presidents that I am familiar with\nwho committed United States combat troops to Vietnam, President\nKennedy with the first 10,000 or 15,000, President Johnson, Presi-\ndent Nixon—they all made efforts of one kind or another to try", "I\nv\nk\ny\n-\n-\n-\n-\n-\n-\n-\n-\n-\n-\n-\n-\

168

and convince the Congress that their actions as Commander in Chief were in the national interest and sought congressional support. It eroded, as we all know, very dramatically. But I think Presidents tried to do it to the best of their ability.

Senator SARBANES. Well, my perception of that is that they never put the question as directly as President Truman did so that you really had a decision on his decision and then the Congress decided with him.

President FORD. Senator, if I could interrupt, they were different kinds of wars. And one went significantly longer than the other. Maybe we're comparing apples and oranges.

Senator SARBANES. I take it that you would agree with Judge Sofaer who testified earlier that there are limits beyond which a President acting alone could not commit forces without coming to the Congress first. In other words, you have a range of situations where Presidents say, "Well, we assert a right to commit forces without going to the Congress," but you could move down that path and envision situations, for instance, in which there was no challenge, no threat, et cetera, in which a President could not of his own commit forces without the Congress beforehand agreeing to do that. Would that be correct?

President FORD. Well, I don't like to commit myself without knowing a bit about the specifics of what you are talking about. I happen to believe that a President in a crisis as Commander in Chief, after getting all the facts he can from State, Defense, Intelligence, et cetera, after he has had the maximum advice from his top people, may have to in that kind of a crisis commit U.S. military forces without consulting with Congress.

Senator SARBANES. But that is assuming a crisis.

President FORD. That's right. I assume that crisis.

Now, as I understand, what you are talking about is a different kind of a situation. And those things do happen and because we have an intelligence capability electronically, et cetera, we can to a degree forecast the possibility of a crisis. We can see, hear, what have you, a buildup by an adversary which would necessitate a comparable process building up our forces. In that kind of a situation where you see the situation developing, absolutely I think a President in sound judgment ought to consult with the Congress, certainly the kind of consultation envisioned by the new bill.

Senator SARBANES. Well, my time is up, and I thank you very much, Mr. President.

Senator BIDEN. The Senator from North Carolina, Senator Helms.

Senator HELMS. Thank you, Mr. Chairman.

I think it is fairly obvious, Mr. President, that there never would have been any War Powers Resolution had there not been the Vietnam war and the controversy surrounding that. And so, that is one of the additional tragedies on top of having to send all those men over there to fight a war they were not allowed to win.

But having said all of that, do you have any opinions satisfactory to yourself as to what message was sent to the Vietcong when the Nixon veto of the War Powers Resolution was overridden by the Senate?

169

President FORD. I have no inside information as to what the direct message was. I suspect that the Vietcong probably believed that their persistence and their military efforts over a period of time had paid off, and they were more likely to be stronger in their efforts than they had been in the past.

Senator HELMS. Well, there were reports, commentaries. Of course, I guess nobody knows except the Vietcong that there was joy in those circles because that was a signal to them that we were going to pull out, which we did after some time.

Well, tell me. How would you as President under the War Powers Resolution deal with a harsh, extreme terrorist situation that would come up, say, on the Easter weekend as you referred to? How would you deal with it as President? Would you go ahead and do whatever is needed to do, or what?

President FORD. Senator, it would depend, of course, on the kind of terrorist actions. There are two kinds. One, there are terrorist acts that are planned, executed by governments per se.

Senator HELMS. Right.

President FORD. And there are terrorist activities that are undertaken by irrational, undisciplined groups.

If you had a case of a government-undertaken act of terrorism that could be justified as a threat against the national security of the United States and immediate action was mandatory, if I were in the White House, I would act immediately. Now, there are so many qualifying phrases in what I said, but under those circumstances, I would act very promptly and as effectively as I possibly could.

Now, it is a lot different ball game when you are talking about these sort of unorganized, undisciplined terrorist groups. That is a different situation.

Senator HELMS. Well, I was speaking mainly of government-promoted acts of terrorism.

I guess this is a general question, and you will have to give a general answer. You and I have come along at a time when the spirit of comity existed between the President and the legislative body. I have often thought that if Franklin Roosevelt had been required to prosecute World War II under the limitations of the War Powers Resolution, that the war would have been lost. And maybe the French would be making their vichyssoise out of sauerkraut today.

Is it really possible in your judgment to have the President and the Congress share absolute equality in the conduct of American foreign relations?

President FORD. How do you define "equally"? I think each can play a very critical role in the development and execution. I firmly believe that Presidents have to take the initiative in the formulation of foreign policy, and they have to do the execution on a day-to-day basis. But you can't conduct the foreign policy if you don't have money, and the Congress has that responsibility and properly so. So, Congress does have a responsibility either in the annual appropriations for the departments or foreign aid or what have you. So, it is a joint operation, Senator, and they better get together and work together.

170

Senator HELMS. Well, you picked up on the followup question I had intended. I said between the two branches, one has to take the lead in foreign policy. And that clearly is the executive branch.

Thank you, Mr. Chairman.

Senator BIDEN. Senator Helms, we have all been talking about bipartisan foreign policy, and I am sure that President Carter would have been happy had we viewed it that way when the Panama Canal treaties and the Taiwan Relations Act were considered. And I am sure President Reagan would have been happy had I sided with his position on Nicaragua. So, maybe during the next administration you and I will be able to be more bipartisan than either of us have been in the last 10 years.

Senator HELMS. Well, the executive process is that the President had to send up those treaties on the Panama Canal to give it away. He would have had no choice about it. I am convinced if he didn't have to send it up here, he would have given to Rios with a red ribbon around it.

And I think that what he did to Taiwan and what Congress helped him to do was a travesty.

Senator BIDEN. I am not arguing the issue. I am just pointing out that that's a foreign policy.

Senator HELMS. But those were in the process. That would have happened regardless of the War Powers Act, as you know.

Senator BIDEN. I thought we were talking about the larger scope of foreign policy.

Senator Adams.

Senator ADAMS. Thank you, Mr. Chairman.

Mr. President, it is a pleasure to see you again. I enjoyed serving with you in the House.

President FORD. It is mutual, Senator.

Senator ADAMS. Mr. President, we both lived through the Vietnam war together in the House, and I heard you use the word "war" in conjunction with Vietnam. I don't remember President Johnson from February 1965 through the 1970's ever calling it a war. It was always an incident; was it not?

President FORD. Well, my memory is not that good, Senator. But I suspect that there was a tendency by the President and others in the White House to do as you have said. But the facts of the situation were it was a war.

Senator ADAMS. That is what bothers me, Mr. President, and why I support the War Powers Act. And I am not saying it is a perfect statute. But it is a method of uniting the American people when we come to a point of commitment of people who lose their lives or are injured. The Treasury will be used and the American people need to be mobilized in support, and that we know that we have that goal.

The reason I support this so strongly is that I feel that we need a mechanism. In Korea we were in with the United Nations. We had a policy. The country was in it. But I would like to tick off to you what happened in Vietnam when we did not call it a war but rather a Presidential action going forward.

We lost the draft. We no longer have that.

We had the last balanced budget. We never had another one of those.

We did.

We stood.

And we really were at war.

The first thing I did was to call the President.

Now, I know that we can't go beyond what we have been told to do, but I think it is time that we went beyond what we have been told to do.

When I started my term, I was with you. I was with the President. But when I left, I was with Congress. And that is why we have been able to do what we have been able to do.

The War is all these things happening, and it is a matter of our own experience, of our own term use of Congress, of what we have been told to do, and of what we have not been told to do.

And I think that is why we have not been given the information that we have been given.

President FORD. I think that is true.

Every year we have a budget for help the President or whether it was President every year has had a foreign economic and if my n

So, you have been on whether and for the about that. how you vote. And up until now, I have not seen any major opposition.

Starting with your question.

Senator A. was determining Vietnam and its effect on the situation. And I think that is the reason why I opposed the Vietnam War.

171

We didn't get a tax to pay for the war.

We started into an inflationary spiral.

And we never had stated for our troops in the field that we really were involved in a war and that the victory was to win the war.

The final result in foreign policy was that we lost all of what was then Indochina.

Now, I am not saying that we should not have been in Vietnam. But what I am trying to ask you is why is there such an objection to the President coming to Congress when the use of military force goes beyond crises or rescue of American citizens?

When there is a commitment involving a lot of money and military strength, the Congress should vote on it. Then we are in it with you. If we oppose it, you beat us around the ears and we know where we are.

The War Powers Resolution says to the whole world, particularly all these potential third-party worlds, that we are not with a king or with a single person that can make war. It is a congressional matter. And it is congressional plus Presidential. We will defend ourselves, but before we commit to long-term occupation-or long-term use of our forces, the whole Nation will be behind it. And the Congress is the only one I know that can vote for it. That is what we have been trying to accomplish.

And I would like to know from your point of view—we have given the 48 hours, we have 60 days to talk about this before anything happens-why we don't move to unite the Nation's foreign policy when it is using its military arm.

President FORD. Well, first let me indicate some difference of opinion in your interpretation of what the process was during the war in Vietnam. We were both in the House at the time.

Every year, whether it was President Kennedy, who submitted a budget for combat forces in Vietnam, who submitted a proposal to help the South Vietnamese with military and economic assistance, or whether it was President Johnson who did the same, or whether it was President Nixon who did exactly the same-in other words, every year you had a military appropriations bill. Every year you had a foreign aid appropriations bill that included military, as well as economic assistance. And every year you had the appropriations, and if my memory is correct, you had equally authorizations.

So, you had two chances in the House and/or the Senate to vote on whether you were going to supply military funds for our forces and for the Vietnamese forces in Vietnam. There is no question about that. We could go back and check the rollcalls. I don't know how you voted, but the chance was there for us to vote yes or no. And up until about 1971, those bills went through without any major opposition.

Starting about 1971, we had the limitations or restrictions on authorizations and appropriations bills.

Senator ADAMS. Wasn't that after 1969, Mr. President, when it was determined that we were not getting the right numbers on Vietnam and we were all of a sudden starting to run a terrible deficit? In other words, it was being buried in O&M, and all of a sudden Vietnam was not a line item. The military budget was a total item, and not isolated.

172

And therefore, it came upon us only after thousands of casualties and no real knowledge of how many ships and so on we were losing. A whole group of us went to President Johnson and said you have to have a surtax because we are going to break the budget badly and will for 4 or 5 years. In other words, this thing had built up on us, had it not, because we were not saying, as we had in other wars, Vietnam, this amount of money.

President **FORD**. You may be right. It might have been 1969 rather than 1971, but it came during that relative period.

So, I have never agreed with those that they didn't have a chance to express themselves either in the debate of the floor of the House and or the Senate or by voting yes or no on the necessary legislation to authorize or to fund those programs.

So, I still think the Congress with those tools of legislation that has to go through has an opportunity on any foreign or military policy problem to express itself. I, therefore, do not think that the War Powers Resolution is needed.

The people who opposed the war in Vietnam finally by these limitations forced us to quit. There is no question about that. They said there couldn't be any funds spent 60 days after this date. There weren't any funds. So, we quit. That is what happened.

So, the tool is there without the War Powers Resolution to achieve a certain result. I opposed all of those limitations. I felt very strongly, but the will of the Congress finally prevailed.

Senator **BIDEN**. Thank you, Senator.

Senator **Evans**. If we could try to stay within the 5-minute rule, it would be helpful because we have another meeting.

Senator **EVANS**. Thank you, Mr. Chairman.

Mr. President, it seems to me that if we start long before the War Powers Resolution—and I think we all must—with our Constitution, as I remember the words—I don't have them in front of me, but Congress is clearly given the power to declare war. They are not given the power to declare limited hostilities or a police action or any other thing. They are given the power to declare war. They are not even given the power to not declare war except by absence of any action. So, the one action Congress can take is to declare war.

In your view is our current action in the Persian Gulf a war as far as the United States is concerned?

President **FORD**. Well, based on what I am personally familiar with, it borders on, but I don't think it is a war in the traditional sense such as World War I, World War II. There are sporadic head-to-head military confrontations, but it is not a war in the sense that we have lived through in this century in two cases.

Senator **EVANS**. What about the action in Libya? Would that be a war in your view?

President **FORD**. You mean the President's action?

Senator **EVANS**. Yes.

President **FORD**. I don't think that could fall under the definition of "war," no.

Senator **EVANS**. It is very interesting to me that at the time the War Powers Resolution was passed, it was titled "War Powers," but it turned right around and it talks constantly about hostilities and not war. And it seems to me there is a significant difference

between the sense, we would have intended from that function.

Then in the early 1960s, I think, your opposition to the War Powers Resolution, I think, is that it seems to me that only in three ways could the Congress, specified by attacks on its authority, might well call a reaction, that are

In your view, what events when the U.S. Armed Forces were involved in only in three ways could the Congress, specified by attacks on its authority, might well call a reaction, that are

President **FORD**. Well, the War Powers Resolution, every possible course And when you do.

I strongly—and don't need this legACY to the proper restraint and exercise its authority to prevent don't attempt to int

Senator **EVANS**. Well, I did not think so. And he has an international power to control the funding power to restrict the authority of another country to do that. I don't think I don't attempt to int out its function."

He says, "By the laws of war, the Armed forces for the Armed forces having functions that as defense of U.S. ves lar region." It seems also to exceed its authority in particular type of military power to control spending the President's discretion. That seems to me to be that the power of the President's discretion, that of the tutional authority of the

I don't know if you line belongs.

President **FORD**. I have indicated. I don't pursue to tell a President

173

between the two in definition. If there wasn't a significant differ-
ence, we wouldn't have two words. And it seems to me we start
from that fundamental question.

Then in the War Powers Resolution—you have stated very clear-
ly your opposition to the entire War Powers Resolution, but it
seems to me that there are some extraordinary flaws within the
War Powers Resolution if we were to examine it piece by piece.

In your view, do we miss covering the entire gamut of potential
events when the War Powers Resolution states that the constitu-
tional powers of the President as Commander in Chief to introduce
U.S. Armed Forces into hostilities or into situations where immi-
nent involvement in hostilities is clearly indicated are exercised
only in three ways: a declaration of war, which much come from
Congress; specific statutory authorization; or a national emergency
created by attack upon the United States, its territories, or posses-
sions or its Armed Forces? Aren't there other circumstances that
might well call for reaction by the United States, prompt action or
reaction, that are excluded by this particular provision?

President FORD. Well, that is why I, among other things, think
the War Powers Resolution is unnecessary. You cannot define
every possible contingency that might arise in this day and age.
And when you do, you get in trouble.

I strongly—and this is a repeat of what I have said before—we
don't need this legislation. Presidents I personally feel will exercise
the proper restraint and judgment and Congress can, on the other
hand exercise its proper role if and when such a situation arises.

Senator EVANS. In the testimony of Mr. Sofaer this morning,
which I did not have a chance to listen to, but I read his testimony.
And he has an interesting proposition that does deal with what you
had talked about as a limitation on Presidential authority, and
that is the power of the purse, where he says, "Congress has broad
power to control the expenditure of funds, however, may not use its
funding power to restrict or usurp the independent constitutional
authority of another branch. We understand that fully and we
don't attempt to interfere with the judiciary in terms of carrying
out its function."

He says, "By the same token, Congress could not lawfully deny
funds for the Armed Forces to compel the President to cease exer-
cising functions that are lawfully his as Commander in Chief, such
as defense of U.S. vessels from attack on the high seas in a particu-
lar region." It seems to me he is—and is saying, "Congress would
also exceed its authority by ordering the President to conduct a
particular type of military operation in a specific manner. The
power to control spending cannot properly be used to interfere with
the President's discretion or the conduct of military operations."
That seems to me to indicate to me that he is suggesting at least
that the power of the purse of Congress runs up against the consti-
tutional authority of the President to carry out his functions.

I don't know if you would care to tell us where you think that
line belongs.

President FORD. I am not sure I would go as far as Mr. Sofaer
has indicated. I don't think Congress can use the power of the
purse to tell a President that he has to use this weapon system or

174

that weapon system in the actual undertaking of the national defense of the United States.

I happen to believe that what was done during the Vietnam war limiting funds for the further activities there was constitutional as long as it was passed by a majority of the Members of the House and Senate and not vetoed by a President. I think that is proper, but to try and minim manage the use of weapons in a war or vessels in a war I think is going too far.

Senator EVANS. Thank you.

Senator BIDEN. Thank you.

Senator Simon.

Senator SIMON. Thank you very much, Mr. Chairman.

First, as I indicated to you earlier, I heard Hubert Humphrey say what a tremendous contribution Gerald Ford had made in restoring confidence in our Government, and I really believe it was a major, major contribution.

If I may follow my colleague, Dan Evans, here when he says the Constitution says Congress is granted the power to declare war, but it is very interesting what follows that. It says, "to declare war, make rules concerning captures on land and water."

Then there is the only limitation that is made on appropriations, the only one in the Constitution. It says, "to raise and support armies, but no appropriation of money of that use shall be for a longer term than 2 years."

Clearly, the message of the Constitution is that restraint has to be used. And somehow I think that is what we are all trying to strive for is a sensible use of restraint.

If I can use an example from just 2 days ago. We had a resolution—I think I may be a cosponsor on it too—to impose sanctions on Iraq for the use of chemical warfare against the Kurds. George Shultz testified before the Judiciary Subcommittee on Immigration, but we got into the Iraq situation. And George Shultz told us, he said, "Let's be careful. Let's make sure we know what the facts are before we pass any legislation."

Now, in the case of economic sanctions, we have time to find that out. If instead of economic sanctions we were talking about the use of personnel and weapons, we might not have that time. And a second voice saying hold on, let's find out what the facts are, I think is a very healthy thing.

Now, one of the things that struck me about your testimony, Mr. President, was that I think you used six illustrations when you were President. Four of the six involved evacuation of American personnel. I wonder if an exception should be made in the War Powers Act where there is evacuation of personnel. Realistically you want to repeal the whole thing. That isn't going to happen. Does that strike you as a sensible exception that should be made in the War Powers Act?

President FORD. I can see where that might make sense because under the current phraseology, it includes both initial actions as well as any others. And certainly an evacuation is in a different category whether it is our troops from Danang or Saigon or Phnom Penh. It is a different kind of a military engagement. That is a thought that ought to be examined.

ing of the national de-

ing the Vietnam war
was constitutional as
members of the House
think that is proper,
s in a war or vessels

Chairman.

bert Humphrey say
had made in restor-
ly believe it was a

e when he says the
to declare war, but
s, "to declare war,
ter."

on appropriations,
raise and support
use shall be for a

at restraint has to
be all trying to

We had a resolu-
to impose sanctions
the Kurds. George
ge on Immigration,
Shultz told us, he
what the facts are

e time to find that
ing about the use
that time. And a
t the facts are, I

ur testimony, Mr.
ations when you
ion of American
ade in the War
nel. Realistically
going to happen.
should be made in

ke sense because
nitial actions as
is in a different
aigon or Phnom
ment. That is a

Senator SIMON. And in the case of an evacuation, there you have to move very, very quickly.

President FORD. Sure. We had people on the beaches who were sitting ducks that if we didn't move our ships and our other forces into that position, those who were trying to get out were just pawns in the hands of the enemy.

Senator SIMON. Well, it seems to me that this suggestion—and, Mr. Chairman, you are drafting legislation—that this may be an exception that we ought to put into the law. If, on the other hand, we want to use troops in Iraq or someplace else, then that restraint ought to be there.

I have no further questions, Mr. Chairman. Again, I just want to thank President Ford for being here and thank him for the great contribution he has made to our Nation.

President FORD. Thank you.

Senator BIDEN. Senator Kassebaum, last but surely not least.

Senator KASSEBAUM. Thank you, Mr. Chairman.

President Ford, I remember you giving a very eloquent argu-
ment, the Landon Lecture Series at Kansas State University, I
think in 1977 or 1978 against the War Powers Resolution. And it
was the first debate really I heard that triggered my interest in
this issue, and you persuaded me at that lecture that, as a matter
of fact, that it should be given some very careful thought to what
the War Powers Resolution was about and wasn't about.

And it seems to me in listening to some of the testimony here
and through past hearings we have had, which have been very in-
teresting, that perhaps it came about in our frustration between
the executive and legislative branch to really define what we were
doing because I am one who believes that Congress does have the
power and the means to influence whatever actions are being
taken. The power of the purse is a very strong and I think persuas-
sive power that we have.

And we have had past actions going much further back. And I think Senator Adams' illustrations were interesting, but I don't think that is what has caused necessarily our debt problems. I think that throughout history we have had Presidents who have undertaken actions when they have felt it was important, and we have never had really Congress saying, "Well, where were we."

I think what has changed—and as you go back and analyze the
Vietnam period—is a lack of comity or more importantly consulta-
tion between the executive and the legislative branch. I don't think
the War Powers Resolution necessarily makes that possible. And I
think one of the things that we really should consider is why this
is broken down.

Some of it I think is just the process both in Congress with the
diffusion of committees and subcommittees, with the chairmen no
longer the strong chairmen that they were when you go back in
talking about President Truman and his relations with Congress;
and in the executive branch, the diffusion there, the National Secu-
rity Council playing a significant role, the Defense Department, the
State Department, the President listening to all of these advisors.
And I think it is this diffusion that has really not lent a clarity of
purpose. Now, there can be disagreement, but one has to have
some clarity of purpose on all sides or else it does get very fuzzy.

["176", "And I think to a certain extent, we might have turned to the War Powers Resolution somewhat as a happiness and security blanket. We felt it gave us then in more clearly defined terms responses that we had to make and said to the President he had to ask us. All of that is really there if we want to exercise it. It is just that we have failed I think to exercise in many ways the responsibilities and the voice that we do have.", "That is more of a statement than a question, Mr. President, but do you think that perhaps some of this has come about because of just the changes that have taken place in the structure of the executive and legislative branches?", "President FORD. That opens a wide door, Senator. And I do think that there has been some structural changes in the executive branch that have contributed, but I also think there have been some serious changes in the Congress that have had an impact.", "I believe the proliferation of subcommittees is a problem. I happen to believe that the change in the seniority system has been a factor. I see some disintegration of leadership in both parties because of the

TABLE OF CONTENTS

<table><tr><td>Executive Summary</td><td>iii</td></tr><tr><td>Introduction</td><td>1</td></tr></table>

<table><tr><td>I. Congress, Peace, and the War Powers Resolution in Historic Perspective</td><td>2</td></tr><tr><td>Commemorating the Munich Conference of 1938</td><td>2</td></tr><tr><td>Congressional "Peace Efforts" and World War II</td><td>3</td></tr><tr><td>Presidential "Lawbreaking"</td><td>8</td></tr><tr><td>World War II and the Shift to Bipartisan Internationalism</td><td>9</td></tr><tr><td>War in Korea</td><td>9</td></tr><tr><td>The Vietnam Commitment</td><td>11</td></tr><tr><td>The Gulf of Tonkin Resolution</td><td>14</td></tr><tr><td>The 1973 War Powers Resolution</td><td>19</td></tr><tr><td>Implementation of the War Powers Resolution</td><td>20</td></tr><tr><td>Mayaguez Rescue</td><td>20</td></tr><tr><td>Iran Rescue</td><td>21</td></tr><tr><td>Grenada</td><td>22</td></tr><tr><td>Lebanon</td><td>24</td></tr><tr><td>Joint Resolutions vs. Declarations of War</td><td>27</td></tr></table>

<table><tr><td>II. Constitutional Theory of Separation of National Security Powers</td><td>29</td></tr><tr><td>Analytical Approaches to the Separation of Foreign Affairs Powers</td><td>30</td></tr><tr><td>The Duty to "faithfully execute" the "Laws"</td><td>30</td></tr><tr><td>Foreign Policy as a "Shared Power"</td><td>31</td></tr><tr><td>Totaling "Enumerated" Powers</td><td>33</td></tr><tr><td>The Grant of "Executive Power"</td><td>34</td></tr><tr><td>Intent of the Founding Fathers</td><td>35</td></tr><tr><td>Theories of Locke, Montesquieu, and Blackstone</td><td>35</td></tr><tr><td>Early Constitutional Interpretations</td><td>38</td></tr><tr><td>Thomas Jefferson</td><td>38</td></tr><tr><td>Alexander Hamilton</td><td>45</td></tr><tr><td>James Madison</td><td>51</td></tr></table>

Traditional Congressional Deference ....................................55

The Need for Secrecy ........................................................56

Executive Privilege ................................................................59

The Powers to "Declare War" and Serve as "Commander in Chief" ......64

III. The War Powers Resolution and the Constitution ....................70

Section 2(c) ................................................................................70

Section 3 ......................................................................................71

Section 4 ......................................................................................72

Section 5(b) ................................................................................73

Section 5(c) ................................................................................76

The Legal Standard is "War," Not "Hostilities" .................................79

IV. S.J. Resolution 323

War Powers Resolution Amendments of 1988..............................81

Section 3(2) ................................................................................81

Section 5 ......................................................................................82

V. Conclusion and Policy Recommendations ....................................85

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TURNER—EXECUTIVE SUMMARY

# RESTORING THE "RULE OF LAW":

## Reflections on the War Powers Resolution at Fifteen

Robert F. Turner

Mr. Chairman, it is a great pleasure to be here this morning—on this fiftieth anniversary of the infamous Munich Peace Conference—to assist this special subcommittee in its important work of reviewing the 1973 War Powers Resolution. I have prepared a rather lengthy formal statement, which with the committee's permission I will simply submit at this time for the record. It consists of five sections, which I would propose to summarize very briefly before addressing any questions you might have.

### I

Part one seeks to set the War Powers Resolution in historical perspective. It suggests similarities between the current efforts in Congress to preserve peace by legislative constraints on the foreign affairs powers of the President and those in the late 1930's which, while equally well-intentioned, contributed ultimately to further foreign aggression and the involvement of the United States in World War II.

It notes the successes of bipartisan foreign policy in the aftermath of that horrible conflict and traces several steps in the decision by the American Government to help defend the peoples of Indochina from communist aggression. In particular, it notes the special role played by such distinguished former members of this committee as Senators Mike Mansfield, Hubert Humphrey, and J. William Fulbright, in that commitment.

And *commitment* it was, first with the Senate voting its consent to the ratification of the SEATO Treaty with only a single dissenting vote, and then with a combined margin of 504 to 2 in the enactment of a joint resolution authorizing the President, as *he* determined necessary, "to take all necessary steps, including the use of armed force, to assist" victims of aggression in Southeast Asia requesting our help. In explaining this important new law to their colleagues, the Chairman and Ranking Republican of this Committee had the following colloquy:

MR. COOPER. . . . [L]ooking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution?

MR. FULBRIGHT. That is the way I would interpret it.

TURNER—EXECUTIVE SUMMARY

In the years which followed, both houses of Congress reflected the strong public support for the conflict by time and again appropriating billions of dollars by overwhelming majorities. When an effort was made in the Senate in 1966 to repeal the statutory authorization for the conflict, it was overwhelmingly rejected by a vote of 92 to 5. During that debate several Senate leaders observed that a formal "declaration of war" was both inappropriate and unnecessary, and Senator Javits—who later led the Senate effort to enact a War Powers Resolution—asserted "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy." The following year, when the American Bar Association issued a lengthy legal brief affirming the legality of the President's conduct of hostilities in Vietnam pursuant to the Gulf of Tonkin Resolution, Senator Javits introduced a lengthy excerpt from the brief in the *Congressional Record* and said:

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TURNER—EXECUTIVE SUMMARY

> U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay. . . . No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the too-little, too-late policies which invite aggression.

> I am certain that when Congress passed the Gulf of Tonkin joint resolution, it was aware of what authority it was granting to the President. . . . I contend that the Gulf of Tonkin joint resolution is clearly a declaration of war.

In the last fifteen years, the congressional attitude towards the Resolution's implementation has been characterized above all by a desire to avoid being held accountable for any policy failures. President Ford's Mayaguez rescue, which violated both the existing Cooper-Church statutory prohibitions against sending U.S. combat forces to Cambodia and several provisions of the War Powers Resolution, was greeted by this

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TURNER—EXECUTIVE SUMMARY

II

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TURNER—EXECUTIVE SUMMARY

constitutional convention gave 'executive power' to the President, the foreign relations
power was the essential element in the grant...."

But the Founding Fathers departed somewhat from the Lockean model, vesting
certain powers "executive" in their nature in the Senate (such as a "veto" over the
ratification of treaties) and the Congress (such as a veto over a decision to launch a war
against another State). These were important checks against possible executive abuse.

Relying on the "executive" power clause of article II, section 1, Thomas Jefferson
wrote in 1790:

> The transaction of business with foreign nations is executive
> altogether; it belongs, then, to the head of that department,
> except as to such portions of it as are specially submitted to
> the Senate. Exceptions are to be construed strictly.

Writing in his Diary three days later, George Washington noted that he had shared
Jefferson's views with Representative James Madison, and that Madison "agreed" with
Jefferson and John Jay.

Jefferson is undoubtedly the most frequently quoted Founding Father by those who
argue for expanded congressional war powers. For example, Senator Mark Hatfield
recently quoted Jefferson's 1789 letter to Madison which stated:

> We have already given in example one effectual check to the
> Dog of war by transferring the power of letting him loose
> from the Executive to the Legislative body, from those who
> are to spend to those who are to pay.

But consider that statement for a moment. Although the Articles of Confederation had
given the Continental Congress all war-related powers, Jefferson asserted that the new
Constitution had "transferred" this power from the Executive to the Legislative branch.
This reflects his understanding—in the tradition of Locke, Montesquieu, and Blackstone—
that all "war" powers were by their nature "Executive." And thus, using Jefferson's earlier
analysis (which was also shared by Madison)—as an *exception* to the general grant of
Executive power it was intended to be construed "strictly."

Jefferson's chief rival was Alexander Hamilton, who wrote in 1793:

> It deserves to be remarked, that as the participation of the
> Senate in the making of treaties, and the power of the
> Legislature to declare war, are exceptions out of the general
> "executive power" vested in the President, they are to be
> construed strictly, and ought to be extended no further than is
> essential to their execution.

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