YALE UNIVERSITY
LAW SCHOOL
NEW HAVEN, CONNECTICUT

EUGENE V. ROSTOW

May 28, 1970

Dr. Henry Kissinger
The White House
Washington, D. C.

Dear Henry,

I was struck---and amused---by your reference to the serried ranks of our bureaucracy, and their capacity for resistance. I have had experience in persuading, cajoling, coercing, and overruling their instincts for inaction on each and every occasion. For comfort, I offer Jefferson's advice to his son-in-law:

> "Keep aloof, as you would from the infected subjects of yellow fever or pestilence. Consider yourself when with them as among the patients of Bedlam, needing medical more than moral counsel. Be a listener only, keep within yourself the habit of silence, especially on politics. In the fevered state of our country, no good can ever result from any attempt to set one of these fiery zealots to rights, either in fact or principle. They are determined as to the facts they will believe and the opinions on which they will act. Get by them, therefore, as you would by an angry bull; it is not for the man of sense to dispute the road with such an animal."

In general, I found Porter's Law a useful guide: "When in doubt, do the right thing."

Did you like the Cranston statement? It might be useful to have it welcomed by the White House or the State Department. Bob Grey could have gotten many more signatures, but felt the pressure of time, and the risks of miscalculation, made it desirable to publish quickly.

What of a private United States mediator to visit Nasser and others, and push forward towards the Jarring conference? I have always believed we should take the risk. At this stage, we have nothing to lose. McCloy would be excellent. X

Yours cordially,

llp

EUGENE V. ROSTOW

May 11, 1970

Hon. Henry Kissinger
The White House
Washington, D. C. 20500

PERSONAL

Dear Henry,

I read the accounts in the press this morning of your meeting with your Harvard colleagues with great sympathy. Be of good cheer. Our brethren have never been long in practical judgment. That's not the quality for which they were appointed to their posts in the first place.

When I joined this faculty in 1938, the prevailing mood was isolationist. Very few men indeed perceived Hitler's plans as a threat to American interests. And our student activists, led by Kingman Brewster, sponsored great meetings addressed by Charles Lindbergh. Kingman testified before Congressional Committees against the draft or the Land-Lease Act, or both--- I've forgotten the details.

The decision was right---indeed indispensable---if our policy is to retain its capacity to deter general war. I never thought we'd get anywhere, either in the Far East or elsewhere, without action of this kind, to demonstrate that Bill Fulbright is not President, and that there are some things they had better not do.

But why on earth pull out? I should suppose we'd want to hold the enclave to prevent infiltration into South Viet-Nam.

I have been trying to get a group of senators to call privately on Bill Rogers or the President, to offer support for a Middle Eastern program like the one laid out in my speech of March 8, in Hartford, which I sent you at the time. I think Cranston, Muskie, Dominick, and Jackson, at a minimum, are ready to make the offer. You may want to pursue the matter, for this or comparable initiatives. My former assistant, Bob Grey in Cranston's office, is coordinator.

llp

RITES OF SPRING

by
Eugene V. Rostow *

Only Swift or Aristophanes could do justice to the fever which has swept over the university world, and beyond, in recent weeks. But ordinary men can understand three of the arguments commonly put forward by way of protest against the President's policy in Indochina: (1) that his action is illegal; (2) that we should tear up the SEATO Treaty, and get out of South East Asia, because our policy is "divisive"; and (3) that it will finally prove that democracy has "failed" --- that communications are "clogged"; that violence is justified --- if the troops are not withdrawn from South East Asia immediately after the university and other delegations have presented their views in Washington.

The call for unilateral withdrawal issued by some distinguished members of the New York Bar last week implies what others say more candidly --- that our posture in Viet-Nam, and the President's action in Cambodia, are illegal. No group of lawyers has committed more egregious error in public since the Fifty-Seven champions of the Liberty League pronounced the New Deal unconstitutional. However one draws the boundary between the President's inherent powers and those of Congress in the field of foreign policy and the use of force, the SEATO Treaty and the Tonkin Gulf Resolution together provide an impregnable legal base for our campaign in Indo-China, both constitutionally and under international law --- a stronger base than President Truman had in Korea. In citing authority for that proposition, one need go no further than the opinions of the Supreme Court in *The Eliza*. Nor can there be any question under international law about our right, and

* Sterling Professor of Law, Yale University

-2-

that of South Viet-Nam, to attack North Viet-Namese troops operating
against us from Cambodia, when Cambodia fails to disarm and intern those
troops.

My colleagues in higher education would be the first to reject the
argument that national policy should be suspended because it causes
"division" in the country when that argument is advanced to justify the
nullification of the Fourteenth Amendment. In any event, they are estopped
from making this argument because the experience of Viet-Nam, like the
experience of Korea before it, has renewed our national debate about the
proper goals of American foreign policy in this dangerous century. That
fact should stir the educators to apology, penance and reform. It is
hardly fitting for them, however, to urge the nation to alter its foreign
policy because they have failed to teach a generation of students and
teachers why war and near-war have become a dominant aspect of the human
condition in this brutal and chaotic age.

Others are estopped from making this particular argument for com-
parable reasons: Senators and Editors who promised the President and the
nation in 1967 and 1968 that they would support a policy of greater
military effort in Viet-Nam if a bombing halt did not produce a prompt
and decent agreement of peace; and those as well who supported SEATO
and the Tonkin Gulf Resolution, and the policies adopted under them, until
the going got rough.

Finally, one can only characterize as anti-democratic the argument that
democracy will have failed if the government refuses to agree with those who
favor treating SEATO as a scrap of paper, and withdrawing instantly from
South East Asia. The fact that one fails to convince one's interlocutors

-3-

is not necessarily evidence that they weren't listening, or that they
were stupid or corrupt if they did listen. Their state of non-persuasion
is also consistent with the hypothesis that the case put forward isn't
very good.

The outcry about Cambodia ignores grim and ominous facts.

President Nixon is facing the tests which confronted President Kennedy
during the Cuban Missile Crisis. After the fiasco of the Bay of Pigs, Ken-
ney had his difficult meeting with Khruschev in Vienna, and made the 1962
agreements about Laos --- agreements which the Soviet Union never raised a
finger to carry out --- before he faced Soviet threat and deception in Cuba.
In the context of that sequence, he did what he did in Cuba, to reestablish
the influence of his diplomacy in the patient, steady struggle for detente.

President Nixon's problem is similar. It is more than two years since
the bombing halt in Viet-Nam, but negotiations have been rejected, and
hostilities have been escalated by enemy forces in Laos and Cambodia. In
the Middle East, too, the Soviet Union refuses to join in restoring the cease-
fire, or to press for a political settlement in accordance with the Security
Council Resolution for which it voted in 1967. On the contrary, by intro-
ducing Soviet pilots into the area, it has transformed the problem. Thus
far it has been unwilling in either area to do what it did to wind up the
war in Korea.

President Nixon, like President Kennedy before him, has therefore felt
compelled to restore the credibility of his diplomatic warnings by demon-
strating that America can act, and must act, if its proposals for peace are
ignored. Unless that is done, it will be impossible to defend vital interests
of the nation save in circumstances of much greater danger.

EUGENE V. ROSTOW

March 14, 1973

Mr. Henry Kissinger
The White House
Washington, D. C. 20500

Dear Henry:

It was good to talk to you yesterday. I feel for you and the President in the face of these new and most unpleasant developments, which must have the backing of the Soviets and the opposition of the Chinese. Hence, my modest suggestion --

Thinking over the problem of a Presidential message to Amsterdam, let me tell you that I shall be staying at the Amstel in Amsterdam from March 24, if the message comes through too late for delivery to Randolph Burgess in Washington.

As for substance, it should, I think, stress these points: none of our problems, political, security or economic, can be solved save through the methods of sustained cooperation which have worked so well since 1947; there is need to improve those methods, particularly in the economic field; a private and continuing body of concerned citizens can make a useful contribution to the indispensable dialogue between Europe and North America, keeping Atlantic relationship under review, and making proposals for its improvement from time to time.

Many thanks.

Yours, as always,

EVR:efk

/Continued....

This is not the time for Gaullist Chauvinism or petty European
insularity. President Nixon, for all his domestic problems, must be
given all the support he needs for the fulfilment of a foreign policy,
which is clearly the most progressive and innovative since the end of the
Second World War.

# A TIME FOR SOBRIETY

by
Eugene V. Rostow*

The Watergate tragedy is stirring the nation's instinct for constitutional
responsibility. After years of evasion, or worse, on the part of many partic-
ipants in the process of government, it is suraly a time to review political
problems in the light of first principles.

In the light of these

The goals and aims of foreign policy should come high on any such list
of issues to be reexamined, along with measures -- long overdue -- to protect
the integrity of our electoral campaigns.

In the light of first principles, the action of the House of Representatives
in cutting off funds for bombing in Cambodia must be considered constitutionally
irresponsible. At a particularly inappropriate moment, it would reduce the
possibility of fulfilling policies to which the nation has been committed by
the cooperative decisions of five Presidents and every session of Congress
since President Truman's time.

It is often said that Congress has never consented to military activities
in Cambodia or Laos.

This is simply not true.

After the SEATO Treaty was ratified, Presidents Eisenhower, Kennedy,
Johnson and Nixon, with full and repeated bi-partisan support from Congress,
decided to act under that Treaty to protect South Vietnam against armed
attack from North Vietnam. Unless Congress and the President should abrogate
the SEATO Treaty, that policy continues to be the foundation for the nation's

*Professor of Law at Yale University, and former Undersecretary of State.

A TIME FOR SOBRIETY

2

course in the area.

It is manifestly impossible to assure the security of South Vietnam if hostile forces operate against it from sanctuaries in Cambodia and Laos. This was the premise of the Geneva Agreement of 1962, through which the Soviet Union promised us that North Vietnamese troops would withdraw from Cambodia and Laos. Many believe that the Vietnam misery stems from Kennedy's failure to insist on the fulfillment of that agreement. The 1962 promise was repeated by North Vietnam in the January cease-fire agreement, and endorsed by the major powers who signed the Act of Paris of March 2.

Several doctrines of international and constitutional law justify the President's policy in Laos and Cambodia. The most general is the old and obvious rule of international law that every state is responsible for the use or threat of force from its territory. When a state cannot or will not prevent such acts or threats of hostility, the state being attacked or threatened is privileged to take limited and proportional military steps by way of self-defense, and other states are privileged to assist it through procedures of collective self-defense. This rule justified President Monroe -- without benefit of statute -- in acting against guerrilla bands in Spanish Florida, and President Wilson in chasing Pancho Villa into Mexico. It was the sole legal basis for President Kennedy's actions during the Cuban Missile Crisis. And it is invoked regularly in the tangled drama of the Middle East today.

It is a rule whose exercise in the first instance is peculiarly within the authority of the President as Commander-in-Chief charged with the conduct of military operations. When President Roosevelt decided to invade French North Africa in 1942, he did not require a special act of Congress to buttress his decision.

A TIME FOR SOBRIETY

At this tense and precarious moment in the Indo-China conflict, indirect nibbling at our long standing policy in the area is peculiarly inappropriate. Having fully and repeatedly authorized the goals of that policy, Congress should not now deny the President the best available means to make our policy good.

In the Paris agreements of January and March, 1973, the President has achieved a settlement which, on paper at least, satisfies the purposes for which President Eisenhower and the Senate of his day made the basic commitment to protect the territorial integrity and political independence of South Vietnam. The Paris cease-fire agreements -- fully within the President's authority -- do not alter the underlying position of the United States in Indo-China, as a matter either of international or of constitutional law. They do, however, provide a new and important basis for our continued action.

It has been the fundamental rule of our foreign policy since Truman's time that we cannot allow unilateral change in the relationship between the United States and the Soviet Union to be achieved by force.

In an age of nuclear bipolarity, that rule is even more essential to the possibility of detente, and then of peace, than it was when it was announced in 1947. Congress has many powers. But it cannot legislate the end of the cold war.