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PLACEMENT OF MISSILES IN TURKEY

Mr. FRASER. Let me ask you this. Did our placement of missiles targeted on the Soviet Union in Turkey involve a direct and imminent attack on the Soviet Union?

Mr. MATSUNAGA. Well, if we were wearing the shoes on the other side probably it would have been interpreted as such.

Mr. FRASER. In other words, you are prepared to give this a fairly flexible meaning?

Mr. MATSUNAGA. I think the Executive is going to have to justify his actions by relating all the circumstances.

Mr. FRASER. In fact, if the missiles had been placed in Cuba, the delivery time for a nuclear warhead would have been cut from 30 minutes to 15 minutes.

Mr. MATSUNAGA. Yes.

Mr. FRASER. That would be the difference between having the missiles in Cuba or having long-range missiles based in the Soviet Union itself. The only difference would be 15 minutes in delivery time. You are saying that this difference would enable the President to involve this provision because there was a direct and imminent threat of an attack?

Mr. MATSUNAGA. That is for the President to determine, of course. The authority would be granted under this act for him to take into consideration all of the circumstances. If his intelligence indicated that the installation of missiles in Cuba definitely was a prelude to a planned and imminent attack, the President would be authorized to commit military forces first, then seek to justify his actions before the Congress. The Congress could then approve or not approve his action.

Mr. FRASER. In fact, so far as we know, there is as much basis for deploying them to protect Cuba against an invasion as there was to increase the capacity of the Soviets to attack us; isn't that true?

FROM THE CUBAY VIEWPOINT

Mr. MATSUNAGA. I am not fully cognizant of all the facts and circumstances. I know only what I was told in executive sessions and what I read in the newspapers, but if you looked at it from the Cuban viewpoint I suppose you could have concluded that the missiles were intended for the defense of Cuba. On the other hand, if our intelligence indicated that this was a prelude to a planned expansion of communism via Cuba in the Western Hemisphere, including the United States then, under my bill, the President would have been authorized to act under section 3(1). He, of course, would still need to come to the Congress to fully justify his actions to continue military actions beyond the 30 days.

Mr. FRASER. Let me turn to the NATO treaty if I may. The NATO treaty as I understand it says that an attack on one of our allies shall be construed as an attack on all.

Mr. MATSUNAGA. Yes.

Mr. FRASER. In other words, an attack on France or West Germany would be construed as an attack on the United States. Under the provisions of subparagraph 4 of your bill that would not be sufficient to

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authorize the President to act if there were an attack, say, on West Germany unless the NATO agreement or perhaps the law ratifying the treaty indicated specifically that the President would be authorized to proceed notwithstanding the restrictions of this bill

. In other words, it would have to spelled out specifically that it was exemption.

Mr. MATSUNAGA. Right.

Mr. FRASER. My question is: Would you favor writing such an exemption into the law ratifying the NATO treaty? Would you advocate giving the President authority, no matter what the nature of the event, to directly introduce the U.S. forces into combat?

WARMAKING POWERS IN BOTH HOUSES OF CONGRESS

Mr. MATSUNAGA. No, I would not. Treaties, as the gentleman well knows, are ratified by one body of the Congress alone, the Senate. The warmaking powers of course are vested in the Congress which means both the Senate and the House of Representatives.

In the case of the NATO treaty, however, we may have committed ourselves to defend all other members of NATO by specific legislation authorizing the use of troops in support of the NATO treaty. I may be wrong on that. That is my impression. Perhaps the gentleman might know.

Mr. FRASER. I must say I don't.

Mr. MATSUNAGA. Maybe counsel can tell us. My impression is that Congress did pass such legislation relative to NATO.

Mr. ZABLOCKI. Our agreement is subject, however, to our constitutional provisions and I think it is in all treaties.

Mr. MATSUNAGA. My recollection is that there was specific legislation in the case of NATO.

So in answer to the gentleman's question: I would not, except "by specific authorization of the Congress to the President,” permit the President to engage American forces in hostilities in support of any treaty with other nations.

Mr. FRASER. Without further congressional action?

Mr. IATSUNAGA. That is correct. In order to fully keep our commitment initially and to let the other members of the NATO treaty know that we do mean what we say in that treaty, the President can go to the Congress under provision of this law and specifically cover such a situation.

Mr. FRASER. Let me give you a scenario if I may, Mr. Chairman.
Mr. ZABLOCKI. Yes, 2 more minutes.
Mr. FRASER. I am sorry.
Mr. MATSUNAGA. I have an 11:30 engagement in town.

NUCLEAR ATTACK ON WESTERN EUROPE

Mr. FRASER. Suppose there were a nuclear attack on the Western European countries. What you are saying is that the President, in order to respond against the Soviet Union, would have to come to Congress?

Mr. MATSUNAGA. That is correct.

Mr. FRASER. This obviously would mean the lapse of a measureable period of time; 6, 12, 24 hours.

Mr. MATSUNAGA. Yes. But the President could obtain advance approval of Congress in support of a treaty.

Mr. FRASER. At that point Western Europe has been devastated and then the question facing the American people through the Congress would be, should they authorize an attack on the Soviet Union which would guarantee the destruction of most of the United States. I would myself see some difficulty in the Congress approving that course of action since it would simply result in destroying the Soviet Union and the United States.

In other words, what we would have done through the position you are advocating—and I realize I am asking you for offhand judgments herewe would have destroyed the element of uncertainty which the Soviet Union now has to accept. In fact, we may now respond immediately with a nuclear attack on the Soviet Union if they should attack any of our allies because unlike any other treaty to which we are a party the NATO treaty says that an attack on one shall be treated as an attack on all.

I want you to think about the implications of that. In other words, the nuclear shield that we presently provide Western Europe, would it in effect disappear in your judgment?

Mr. MATSUNAGA. I repeat what I said earlier, although I am not positive about what the actual situation is. In the case of NATO I believe we have congressional authorization passed by both the House and the Senate permitting military support of the treaty. In other words, the Congress has already granted that authority—the authority which those of us who are for this type of legislation say belongs exclusively to the Congress. That authority has already been granted in the case of NATO.

Mr. FRASER. But I understood you to say that you didn't favor allowing the President to use our

Mr. MATSUNAGA. Not without congressional authority.

ADVANCE APPROVAL OF NATO ARRANGEMENT

Mr. FRASER. But you would give advance approval of this NATO arrangement?

Mr. MATSUNAGA. In a case like that, yes, I would; otherwise, the treaty would be meaningless.

Mr. ZABLOCKI. In S. 440 there is a disclaimer where NATO would be exempt there would not be any question as to the President's authority.

Mr. MATSUNAGA. Oh, yes.

Mr. ZABLOCKI. I don't know whether your bill is identical in that respect or not. In preparing your revised version you may want to give some thought to that.

Mr. MATSUNAGA. This is another area which I am sure the subcommittee can delve into in detail and come up with some language which would be acceptable to cover the exact situation.

Mr. ZABLOCKI. Mr. du Pont.
Mr. Du Pont. Thank you, Mr. Chairman.

Mr. Matsunaga, yesterday two very distinguished Senators, Senator Javits and Senator Eagleton, were appearing before us and we had the Javits bill. A question was asked of both of them that seemed to cause some confusion. Let me ask the same question of you

and

perhaps you can help us.

The question was asked Senator Javits: When does the 30 days begin? If your bill had been in effect in the Vietnam conflict, when in your opinion did the 30 days begin?

Mr. MATSUNAGA. There is a lack of exact definition of the terms, I concede to the gentleman, in H.R. 2053 as well as in the Javits bill. This is an area I believe the committee would need to go into in order to clarify the terms used, such as "the introduction of hostilities." I would say if I were to give my own interpretation, the 30 days would begin when military advisers are dispatched to the battle areas.

Mr. Du Pont. Would you think that the dispatching of military advisers today to the Middle East, to Israel, would constitute the beginning of the 30-day period?

Mr. MATSUNAGA. My interpretation would be yes.

CUBAN MISSILE CRISIS, BAY OF PIGS OPERATION

Mr. Du PONT. All right. One other question.

You mentioned several examples in your testimony. Do you see a basic difference between the Cuban missile crisis and the Bay of Pigs operation?

Mr. MATSUNAGA. Yes; I do. Had I then been a Member of Congress, I would have supported the President in the missile crisis, but not in the Bay of Pigs situation.

Mr. Du Pont. Exactly, and the difference is in one instance we were conducting a defensive operation and in the other an offensive operation. Mr. MATSUNAGA. I

agree. Mr. Du Pont. Let me just suggest to you that I have not formulated this fully in my own mind but you might consider this between now and whenever we get action in the committee here.

Might it not be appropriate to attempt to draft a resolution that somehow distinguishes between defensive operations to protect the United States and offensive excursions which I think is the chief reason that this legislation has been needed?

Mr. MATSUNAGA. Section 3 of my bill, of course, intends to do just that, but in discussing this matter more in detail in committee, especially during the markup sessions, I suppose much could be done to clarify the language.

Mr. Du Pont. Thank you very much.
Thank you, Mr. Chairman.
Mr. ZABLOCKI. Mr. Biester.
Mr. BIESTER. Thank you, Mr. Chairman.
I apologize to Mr. Matsunaga for being late.
Mr. MATSUNAGA. I am late for an appointment.

Mr. BIESTER. I will therefore simply make that apology, note the gentleman's observation, and say that I have been to a briefing on the tragic situation at Sudan and I will defer questions. Thank you. Mr. MĂTSUNAGA. I thank you.

Mr. ZABLOCKI. Thank you, Congressman Matsunaga. We certainly appreciate your coming before this committee and sharing your views. We certainly will look forward to your recommendation and revisions to your own version.

lir. MATSEXAGA. Thank you very much, lir. Chairman, and members of the subcommittee.

lir. ZABLOCKI. Mr. Leggett.

STATEMENT OF HON. ROBERT L. LEGGETT. A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. LEGGETT. Thank you, Mr. Chairman.

lir. ZABLOCKI. I understand you are pressed for time, that you had an 11:30 appointment.

Mr. LEGGETT. I have to go to a luncheon for Nir. O'Neal.

I would like to give a short summary and then submit my statement for the record, Mr. Chairman.

I do not know whether the committee has before it my House Joint Resolution 315 but it is my rather simplified approach to the overall problem. What it does, it puts the war power article I, section 8, clause 13-it puts the war power in the Congress and I don't think that anything that we do here that requires a further signature of the President of the United States is going to be signed by him very frankly. If the President does not sign it, I don't think that the Congress has shown any lese inclination to give two-thirds support to overrule him in any international area.

WIR IE WHEN THE CONGRESE DECLARES IT

Therefore, the question is if we want to exert some kind of control in a Vietnam situation I think we have to do it simply by assisting the courts in deciaring what war is, and in my House Joint Resolution 315 I purport w do that very simply. We say in the first section there that war is when the Congress declares it, and No. 2, the term "war" shall not include a state of international combat where less than 5,000 personnel of land, spa, and air force are committed to armed combat outside the Chied States for less than 10 days unless expressly so declared by the Congress in accordance with the first section of this joint resolution.

Then the third sertion staten sinply that no action of either house authorizing or appropriating funda snali either directly or by implication deciare war. I go on in my statement to explain that this would not rule out hot pur-uit situations. If we have a nuclear onslaught on the United States, we al presume that the President, as Vír. Fraser has indicated, has the power to eficat instantaneous retaliation and if our stuips are attacked overseas just as in criminal cases we have the hot pursuit theory we would have the hot pursuit theory in war situations where we could actually pursue the aggressor on the spot wherever he mignt be.

I would tend to think that with this simple declaration by both House of Congress we woud then not be, No.1, ratifying the power of the President to involve us for 30 or 60 or 90 days without the consent of Congress. Second, I don't think that we should necessaris presume that a deciaration like this would precipitate us into war situations because I don't think that we wouid necessarily have to come in and pass a deciaration of war in an unlimited volume or time

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