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Forces in hostilities. This provision is not contained in the Senate bill but, in my judgment, it ought to be incorporated in the final legislation enacted by the Congress.
As I read the first paragraph of your section 6, it is a substitute for sections 5, 6, and 7 of our bill. While the language of those sections of the Senate bill is doubtlessly susceptible to negotiation in conference, I think there is wisdom in going the route of much greater specificity, as we have done in the Senate. Finally, in connection with your section 6, I find a troublesome ambiguity on a vital matter. The Senate bill, in section 5 particularly, is very deliberately constructed so as to throw the burden of proof on the President to convince the Congress, with respect to the question of authorizing an extension of his emergency involvement of the Armed Forces in hostilities. I think it is essential, when the President has acted in the absence of a declaration of war, that the burden be on him to convince the Congress that he has acted in response to a bona fide emergency. If the situation is reversed, and the burden is placed on the Congress affirmatively to overrule the President's action, the Congress is likely to be faced with grave psychological obstacles as well as the threat of a veto requiring two-thirds of both Houses to override. I would like to suggest that you look again at the language of your section 6 in this light.
CONGRESS ON TRIAL
In closing, Mr. Chairman, I wish to emphasize my view that the Congress itself is on trial in the eyes of the people. The issue addressed by the War Powers Act is a fundamental constitutional issue.
It rejects the premise that the issue of Presidential war can be handled by making distinctions between good Presidents and bad Presidents. We could never arrive at an agreed criteria for making such judgments and there is no way such distinctions could be applied to Presidential wars on an ad hoc basis.
The need is for legislation which will assure the exercise by Congress of its equal share of the responsibility at the onset of all wars. Our constitutional system requires confidence that the Congress will act as responsibly as any President in the national interest. Even more significantly, it assumes that the national interest can best be defined and acted upon when both the President and the Congress are required to come to an understanding as to what is that national interest. Mr. Chairman, we are in a constitutional crisis, and I believe indeed
a it is essential to the interest of the Nation that we resolve that crisis. Now that the cease-fire has come in Vietnam, it's unlikely that we will have a resolution from the courts of this area of the Constitution which has been called a twilight zone. The judicial citations and decision with respect to the war powers issue demonstrate that. There is nothing conclusive about the Prize cases or the Curtis case or any of the others. The issue must be decided in the political arena.
The constitutional basis of the War Powers Act (S. 440) is the Congress' powers enumerated in article I, section 8, to deal with the organization of the Armed Forces, the establishment of the Armed Forces, the ruling of the Armed Forces, and so forth, and the power generally to legislate.
CONGRESS HAS POWER TO PUT US INTO WAR
In just so many words, the power to put us into war was in the hands of the Congress, according to the purpose and intent of the Constitution. This is the issue: We have tried to codify the war power, that is really what it comes down to. The question is, Can the House and Senate now get together? I do not think we have any difference in purpose.
I find the provisions of the Senate bill entirely consistent with the principles affirmed by this committee in its report on August 3, 1972, to accompany S. 2956.
These purposes, as I see it, are the following: One, to reaffirm Congress' power to declare war; two, to reaffirm the emergency authority of the President; and three, to require prior consultation with the Congress before involving the Armed Forces in hostilities.
We, on the other hand, require confirmation of the authority to actually put our forces into war or in imminent danger of hostilities. So, I think our bill and your bill are designed to end the practice of Presidential war and to learn from what we have experienced in Vietnam: That this question can no longer be left to the wrestling between the Congress and the President.
Now it is time to codify it, and that is the purpose of this exercise in which we are now engaged. I will not delay you with the details of our bill. The members of this committee are well acquainted with it.
There are two points that I would like to cover, however, which apply to both bills. One is that the funds cutoff route, which we are so often urged to take, has been shown to be inadequate for many
CANNOT CUT MONEY TO TROOPS IN FIELD
One, because of the oft heard plea—and I, myself, have yielded to it, that when you have troops in the field, you cannot cut off their money, and two, because it is rarely unequivocally before us in a
Funds for troops in the field are often mixed up with other funds for deployment of forces around the world, et cetera. As you know, the budget for Vietnam was never per se the budget for Vietnam. It was always combined with hardware and munitions, and the pay of the troops, and so on.
So, what we were left with was the effort to cull something out of that-"You shall not spend money for so and so’--knowing full well that the attitude of the Presidency was such that the President-even if we had succeeded with the Church-Cooper, Hatfield-McGovern, or whatever you had in the House—would simply have been able to reach into the general defense appropriation pot and say:
If I have the power to continue war, I have power to help myself to the money for it, once you appropriate for the Armed Forces of the United States.
So, I think the funds cutoff route, which was the only one we saw open to us after Vietnam was in full play, is inadequate.
The other point is the claims, the almost wild claims made for the power of the Presidency, which shows how far this pendulum has swung. I would like to refer to two instances.
One such instance occurred when Nicholas Katzenbach, who, as you know, spoke for President Johnson, said about the Gulf of Tonkin resolution:
We did not think the resolution was necessary to do what we did and what we are doing.
And even President Johnson said:
DEAN ACHESON ON POWERS OF THE PRESIDENCY
Listen to Dean Acheson on the powers of the Presidency in respect to war. I suppose his characteristic arrogance was something that endeared him to us all, but this is what he said in respect to the Korean situation:
There has never been any serious doubt of a President's constitutional authority to do what he [President Truman) did. The basis for this conclusion is legal theory and historical precedent.
He listed 87 instances in the past century in which the President's predecessors had exercised Presidential power to send our forces into battle.
Now, gentlemen, if we are going to yield to that, then we are yielding to what was probably the classic statement on this subject, which was made by Barry Goldwater in a debate with me before the National Press Club on this issue.
Barry, after the attrition of debate had gone on for a while, said: I have more confidence in the judgment of the one man who is the President of the United States than in the judgment of the 535 men in the Congress.
And gentlemen, that is what it gets down to. Do we succumb to that or do we not. We have, on occasion, been too weak. We have on occasion been too strong. There are occasions in our history when it was Congress that was clamoring for war.
Our position in the Senate is to require a joinder of the Congress and the President by granting authority to the President to use forces in given situations, expiring at the end of 30 days, and, under our bill, requiring affirmative action by the Congress to entitle him to go forward in the absence of affirmative congressional action he loses authority to continue.
IMPROVEMENTS IN HOUSE JOINT RESOLUTION 2
I would like to conclude as follows, Mr. Chairman. I see very significant differences between your bill this year and your previous bill. In the first place, I would like to pay you enormous tribute for undertaking this effort and being the primary spirit in the House in this respect.
You have stood in, in that regard, for not one but three Senators, at least. In our body, my partnership has been with John Stennis, chairman of our Armed Services Committee; with Tom Eagleton, who is here to testify this morning, and with a member who is now no longer with us, Bill Spong, of Virginia.
Now, I see the following movement-and I think it is real movement-in respect to the House bill this year. One, and very importantly, the House bill now specifies the areas in which the President shall have authority.
This is important to the Presidency, and perhaps the President does not as yet realize it because he is opposed to these measures, but they confirm him in an authority, which could be challenged, to respond not just to sudden attacks, but to other situations such as the imperiling of American citizens or situations in which we have given him statutory authority, as for example, in the three resolutions we have on the books, the Cuba, Formosa, and the Middle East resolutions.
The second point at which I see real movement in the House bill this year is the fact that you call for the Congress to meet and act. Now, the basic difference and we would beg you to carefully examine your bill in that regard—is that under our bill, the President has to persuade us, because we are to give him the authority he must have to continue his actions.
DIFFERENCES BETWEEN HOUSE AND SENATE MEASURES
He does not have it after 30 days unless he persuades us. Under your
. bill, you have to persuade him, because if you pass legislation saying you do not want our troops in hostilities, he has to sign that legislation to make it law, and if he vetoes it, we can only make it law with a two-thirds vote. Thus, the President could make war with the support of only one-third of either House.
Also we think there is merit in the greater specificity in S. 440 in the powers conferred to the President, rather than giving him a wide-open mandate to do anything he wants to do where he finds an "emergency.
I might point out that your approach was suggested by Senator Fulbright in an amendment, which was defeated 28 to 56.
In closing, Mr. Chairman, I wish to emphasize my view that here we have a fundamental constitutional issue tying into the whole struggle of the Congress with the President respecting every phase, including impoundment and so many other vital issues.
The war powers issue we confront today has been a result of our tragic experience in Vietnam, which has taught us we simply cannot rely on the normal political wrestling process, because after we are deep into a Presidential war it is almost impossible for Congress effectively to check its continuance.
So now, we must finally reject the premise of "Presidential” war. No longer may any war be Johnson's war or Nixon's war or Truman's war. It has to be our Nation's war. Otherwise, we cannot fight it effectively. We cannot do credit and justice to the Nation or call upon our people to sacrifice what they have sacrificed in the Vietnam war without the decision to go to war being a national decision of the Congress and the President.
NO ONE MAN KNOWS THE NATIONAL INTEREST
Nor, Mr. Chairman, can we assume that one man alone knows the national interest. The national interest is the embodiment of the thinking of the Congress and the President, and, if it is necessary to go to war in that national interest, declared or undeclared, only a joinder of the two assures the Nation that that decision will be provident.
I hope, Mr. Chairman, that this time the House will pass a bill and that we will find an identity of interest in the conference and be able to present the President and the Nation with a finished product.
Thank you, Mr. Chairman.
Of course, as you stated, we are deeply interested in accomplishing something in this area. The House acted in the last two Congresses. Indeed, we had three vctes, Senator. In 1970 in the 90th Congress, the war powers resolution passed by a vote of 288 to 39.
In the 91st, on August 2, 1971, it passed by a voice vote. Later, in order to unsnarl the parliamentary situation in which the Congress found ourselves, in the House we substituted the language of House Joint Resolution 1 for the Senate number and that procedure passed in the House by a vote of 344 to 13.
I would submit, therefore, the House did, in that last vote, indicate its support for the provisions of House Joint Resolution 1.
I find there are two sections in the Senate bill, in your bill, S. 440, that are subject to constitutional question. They are sections 3 and 5. In your opinion, Senator, would the President veto S. 440?
PRESIDENT CAN VETO ANY LEGISLATION
After all, the President can veto any legislation. In your opinion, would the President more likely approve the House version or S. 440? Further, if he does veto it, do you believe the Senate could muster the two-thirds support needed to override? What would be your assessment as to that?
Personally, I do not believe S. 440 would get two-thirds vote in the House, Senator. To go through an exercise with legislation and not have it become a statute, to me is an exercise in futility. Therefore, we tried in the past to meet the constitutional question and approve legislation that the President would at least tacitly approve. Would you care to address yourself to that?
Senator Javits. Mr. Chairman, I believe that this is really a matter of dignity. We must do what we believe will give us an adequate voice in this awful decision of war.
And, in doing that, we act in the highest tradition of our country because those who wrote the Constitution had in mind, above everything, the fact that the king could commit a nation to war, and they would not have it here. And, in my judgment, S. 440 seeks to restore the constitutional balance that has been upset by post World War II practice. In addition, if one looked at the numerical votes, one could override the President in either House.
You have an enormous vote here and we had an enormous vote in the Senate, and as a matter of dignity, considering the prerogatives of each House, I believe that a veto could be overriden, certainly in the Senate. You must judge as to your own House. But, frankly, Mr. Chairman, I do not believe that this legislation is of a character in which we can try to cut our cloth to suit a President.
STRUGGLE BETWEEN CONGRESS AND PRESIDENT
He is not going to be suited. This is a struggle, between the Congress and the President. This President—whom I helped to elect, and I am