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Whatever troops are committed without prior congressional approval, they must be withdrawn within 30 days, unless Congress specifically authorizes an extension or is physically unable to meet, or the President certifies that a further period is needed for a safe disengagement of our troops.

H.R. 2053 also provides for speedy congressional consideration, during the 30-day period, of resolutions to authorize the continued use of troops in any hostilities.

Regardless of the position we may have taken on our recent involvement in Indochina, we cannot deny that that war caused grave divisiveness among our own people. Certainly one of the major underlying causes for this divisiveness was the lack of a declaration of war by that governmental body which is closest to the people and which has the sole constitutional authority to declare war, the Congress of the United States.

DEFINITE PROCEDURES NEEDED TO PREVENT FUTURE VIETNAMS

If we have learned but one lesson from the tragedy in Vietnam, I believe it is that we need definite, unmistakable procedures to prevent future undeclared wars. "No more Vietnams" should be our objective in setting up such procedures. The time for Congress to take this action and to reassert its constitutional role is long overdue.

Five times in the past 12 years, Presidents have mounted major military interventions without prior consultation with the Congress: The Bay of Pigs, the intervention in the Dominican Republic, the bombing of North Vietnam, the incursion into Cambodia and then Laos.

Whatever our individual beliefs may be relative to the merits of these unilateral actions by the Executive, I believe we can all agree that Congress should have played a more significant role in the decision to mount each of these actions.

What was it that the framers of our Constitution had in mind when they gave to the Congress the exclusive power to declare war? To declare war is to decide to go to war, to commit this Nation to active participation in hostilities. It was intended that after the Congress had decided to depart from the normal state of affairs and declare war, and only after such declaration, the President, as Commander in Chief of our armed forces, was to exercise the power to conduct and direct the war. That this was the intent is clearly spelled out in the writings of one of the strongest advocates of executive power, Alexander Hamilton. In Federalist No. 69 he wrote that the President's authority as Commander in Chief "would amount to nothing more than the Supreme Command and direction of the military and naval forces, as First General and Admiral of the Confederacy."

CONGRESS SOLE REPOSITORY OF POWER TO DECLARE WAR

Distinguished historians have assembled evidence on this matter which points inescapably to the conclusion that the Constitution envisions the Congress as the sole and exclusive repository of the power both to declare war and to judge its propriety.

Of course, there are those who contend that such a view of the warmaking powers of Congress is hopelessly archaic. We are told that we live in a world of instantaneous communication where momen

tous decisions need to be made in less time than it takes to complete a quorum call. Perhaps so. But there are two compelling responses to that argument:

First, there is no historic basis for such an argument. There has never been a case of hostilities which posed such a demanding national emergency as to require the use of the warmaking powers by the President, without authority of Congress. As sudden and unexpected as the attack on Pearl Harbor was on December 7, 1941, we went to war only after its declaration by Congress.

Second, if we have in mind an unprecedented, unspeakable surprise attack, one which the President could not have reasonably anticipated, H.R. 2053 would provide for such a contingency quite adequately. Under its provisions, in a dire emergency, the President need not seek the approval of Congress to repel an attack or to save American lives abroad; he can act first and then forthwith request the needed authority from Congress. His hands are not tied at the crucial moment. He need only to convince the Congress, within 30 days after he acts, that he was right in acting unilaterally. I submit that that is not an unreasonable duty to impose on the Executive.

Mr. Chairman and members of the subcommittee, it is my firm belief that the proposed War Powers Act would, if enacted, serve the cause of peace by reestablishing the rightful constitutional role of the Congress in the warmaking process.

CONGRESSIONAL ACQUIESENCE ON USURPATION OF POWERS

As Members of that separate and independent branch of government known as the Congress of the United States, we have to a degree been guilty of acquiescing to the usurpation of congressional powers by the Executive. Perhaps now is the time when we should take heed of the words of Justice Jackson who once wrote, and I quote:

We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

By acting quickly and favorably on H.R. 2053 and similar legislation, we will prove to the American people that we do not intend to abandon our constitutionally granted powers and responsibilities. Thank you, Mr. Chairman, for your attention.

Mr. ZABLOCKI. Thank you, Congressman Matsunaga, for defining your position on your bill.

However, there are problems involved in H.R. 2053 as I pointed out yesterday to a similar section of the Senate bill S. 440 section 3, and it is this section which contains the conditions of circumstances. You refer to these conditions of circumstances in your closing statement on page 4, a period when there is a dire emergency, a crucial moment. Of course the judgment of one man enters into that determination so you really don't avoid a war.

DEPLOYING U.S. FORCES WITHOUT DECLARATION OF WAR

Under these conditions of circumstances on which the Armed Forces may be deployed without a declaration of war, on the one hand appear to bind the President under your bill so inflexibly by such rules that he will not be able to act expeditiously in future situations

which cannot be envisioned now, as the Congressman from Minnesota has pointed out in the colloquy with Mr. Bingham. On the other hand, the President will actually use the legislation by your own definition to provide an explanation, to provide himself with an excuse to act when justification might otherwise be lacking, since the ultimate determination of what the words of the statute will mean will be his, whether it is a dire emergency or a crucial momenu.

Certainly your legislation provides that Congress can undo his action within 30 days but would that be too late? Another question comes to mind. Do you believe that had your bill, H.R. 2053, been law at the time of the Tonkin Gulf incident Congress would not have taken the action we did-action which we now call unfortunate. Nonetheless, it was the sentiment in Congress at that time and certainly I presume-even if such legislation were on the statute books the same action that occurred would have been taken by both Houses of Congress.

Mr. MATSUNAGA. I tend to agree with the chairman that even had the statute been on the books at the time of the Tonkin incident the same action would have been taken by the Congress in passing the so-called Tonkin resolution and authorizing the President to do as he deemed necessary in order to defend American lives and property. However, the fact that the President in acting unilaterally would need to come back to the Congress within 30 days, and fully justify this action to win the approval of Congress, would tend definitely to force the President to take a much more careful look before leaping into any hostilities.

EXECUTIVE CLAIMS NO NEED FOR CONGRESSIONAL AUTHORIZATION

Considering the present situation, where even after the Tonkin resolution was repealed the Executive insisted that it did not even need such authorization from the Congress to continue the hostilities in Vietnam, this proposal would be a vast improvement. At least we will restore to the Congress the right to make decisions whether the engagement in hostilities initiated under so-called dire emergencies ought to continue or not. So while I can foresee, as the chairman foresees, the same probable reaction on the part of the Congress, in the event of an attack, such as that represented to us with the Tonkin resolution, I believe a law which would require the President to come back to the Congress within 30 days for authority to continue military involvement, would be a vast improvement over what we have today.

Mr. ZABLOCKI. There is no doubt in my mind that we all are striving for legislation which would prevent future undeclared wars.

Could I have your comment: your version does not provide for consultation as House Joint Resolution 1 of the last Congress and House Joint Resolution 2 that is now before us does provide in section 4, namely that the President when acting pursuant to the provisions of section 3 would seek appropriate consultation with the Congress before introducing the Armed Forces.

This provisions calls for the President to consult with Congress before he acts. Your proposal is that Congress would have to act after he took action. Don't you think there is a likelihood that undeclared wars would be prevented if he consulted with the Congress before the

fact? I wondered why you didn't include that in your version. Personally, I feel very strongly about that section.

Mr. MATSUNAGA. Section 3, as you know, provides only for situations wherein it is presumed that the President must act immediately, even prior to consulting with the Congress.

VALUE IN CONSULTATION?

Mr. ZABLOCKI. Yes, section 3 of House Joint Resolution 2 has similar provisions. It is not identical; but attempts more generally to spell out where the President does have constitutional authority. My question is: Do you see any value in consultation?

Mr. MATSUNAGA. Yes, I do. The committee in its wisdom may include a requirement of prior consultation, and I would have no objections. May I add that after listening to the questions raised here, I feel we may need to amend sections of my bill to define more clearly what we mean by hostilities, introduction of troops, and so on, in order to determine when the 30 days begin.

I realize that your subcommittee will have the problem of coming up with something which will be acceptable not only to members of this body but to the other body as well. Unfortunately we had no time in the last Congress for the conferees to get together. I do hope that there will be plenty of time in this Congress by your reporting this measure out early so that the differences could be ironed out.

Mr. ZABLOCKI. I can assure you we will act cautiously but expeditiously-I should say expeditiously but cautiously.

Mr. Thomson.

Mr. THOMSON. No questions.

Mr. ZABLOCKI. Mr. Fraser.

Mr. FRASER. Thank you, Mr. Chairman.

I want to commend our colleague for a very thoughtful statement on what I regard a very complicated and difficult subject.

You cite in your statement a number of military involvements in the past 12 years-the Bay of Pigs, the intervention in the Dominican Republic, the bombing of North Vietnam, the incursion into Cambodia, and then Laos.

So far as you can tell, had your bill been in force would any of those have been either prevented or limited?

DISCRETION LEFT TO EXECUTIVE

Mr. MATSUNAGA. Because the discretion would be left to the Executive, to be honest with you, probably not. The fact is, however, that we would at least require the President to come back to the Congress within 30 days for authority to continue any such expedition. Mr. FRASER. I am interested in your listing these particular actions because in my view each one of these was a mistake by the United States.

Mr. MATSUNAGA. I agree.

Mr. FRASER. And yet your bill, as you say, and I am inclined to agree, would not have prevented them. So where are we?

Mr. MATSUNAGA. Well, what we are trying to do in my bill is to prevent Vietnams. Within the designated 30 days the President must justify his actions or the engagement will be terminated by Congress.

Now you might ask, "Does this not lead to expeditions of 29 days?" Even if it did, 29-day expeditions would be preferable to expeditions of 11 years duration. I think at least it is a step in the right direction and a step which is much more important toward a restoration of the war powers to the Congress.

Mr. FRASER. Let me go to a more difficult problem that our Government faced. I refer to the Cuban missile episode. The Soviet Union was installing medium range rockets with nuclear warheads in Cuba and so far as we know the United States would have been the target for those missiles.

I don't find in any of your descriptions under section 3 a provision that would have authorized the President to act; that is, this did not constitute an armed attack upon the United States or against the Armed Forces abroad or involve our citizens, and there was no specific statutory authorization for him to act. Of course, we never got to actual hostilities.

Mr. MATSUNAGA. Never did, no.

IMMINENT INVOLVEMENT IN HOSTILITIES

Mr. FRASER. You also say in the first part of section 3 that "the Armed Forces of the United States may be introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances ***" Clearly we came under that second clause for we deployed our naval forces in order to intercept ships.

What would you say about that?

Mr. MATSUNAGA. That situation as you stated did not involve hostilities, but it may have been interpreted to constitute imminent invasion. Under provisions of my bill such a situation could be handled. under the emergency powers which would still remain within the Executive.

Mr. FRASER. Not as I read your bill.

Mr. MATSUNAGA. Well, section 3.

Mr. FRASER. "Section 3. In the absence of a declaration of war"

and we had no declaration of war, *** the Armed Forces may be introduced in hostilities"-and we didn't do that, "* ** or in situations where imminent involvement in hostilities is clearly indicated by the circumstances"-and we did do that.

So you say all right. No declaration of war, then the Armed Forces may be introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, and that is what we did. In other words, absent one of those four the President would not have been authorized to do what he did.

I don't find in the Cuban episode a situation which comes under any of the four so you would have prohibited the President from creating the blockade. I don't know if they used the term "blockade".

Mr. MATSUNAGA. If the gentleman will look at section 3(1), it says, "to repel an armed attack upon the United States." Now look at the last clause, "and to forestall the direct and imminent threat of such an attack." That probably would cover the situation.

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