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any time the situation warranted an involvement of more than a fixed number of men for longer than a fixed time period.


There is nothing magic about 5,000 men or nothing magic about 10 days. I wanted to put some limitations on that to get the attention of the committee. I do think though that we did exactly the wrong thing in the Gulf of Tonkin by all of us voting for this ratification that in fact ratified a long war that we did not have any control of in the Congress. We should have fixed some limits on that, and the way we do it is to do it under the war power where if we declare war, we declare a fixed war if it is going to be this type of slow, sucking in type of thing such as Vietnam was.

I would apply that to like we are in Thailand today—we have 37,000 troops over there, maybe 47,000, depending on how we redeploy the Vietnam forces. We are obviously using those forces. Even if we execute the Laotian agreement, if we are parties to something there and the Vietnam agreement, the question is at what point do we need further authority to support Thai troops in Thailand. I think that if we are using more than 10,000 personnel in an active combat role bombing different Thai installations within Thailand, which we are, why then I think they would have to come back to the Congress and get our approval on a form of declaration of war. It might not say we declare war against the guerrillas in Thailand but within the war power we have got considerable power and the President would be forced to come back and consult with the Congress and reach some kind of an accommodation and we could put fixed time limits on that.

[Mr. Leggett's prepared statement follows:]


FROM THE STATE OF CALIFORNIA Mr. Chairman and Members of the Subcommittee: I am pleased to have the opportunity to testify on legislation designed to clarify the President's authority to engage in foreign military actions without the express consent of Congress.

These hearings come at a particularly crucial time. We appear to be concluding the longest, and one of the most painful wars in our history. Vietnam has cost us some 56,000 lives and $200 billion in direct expenditures. It has obligated us for another $200 billion in veterans' benefits, and has caused the greatest national rift since the War between the States. Yet, technically Vietnam was not a war, as it was never declared by Congress.

The Vietnam tragedy began within the impermeable walls of the Executive Branch, and it was largely conducted within those same walls with little or no Congressional input. As disturbing as this fact is, we must realize that Vietnam is only the last installment in three decades of Presidential infringement upon Congressional authority in the war-making area.

This infringement began with the 1941 occupation of Greenland, Iceland, and Dutch Guinea. It continued with the 1958 landing in Lebanon, and escalated with the Bay of Pigs invasion in 1962 and the Dominican Republic invasion of 1963. The termination of the conflict in Indochina affords us a unique opportunity to turn back this record and re-establish Congressional authority in this area.

It is certainly clear that the framers of the Constitution intended the warmaking powers to reside with the Legislative Branch. For example, Thomas Jefferson wrote to James Madison in 1789 that, "we have already given in one 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”.

The record shows that for some 150 years Thomas Jefferson's brag was no boast This is not to say that the Executive Branch did not ever commit American forces to foreign hostilities without Congressional assent. There have been, in fact, over 100 occasions in which an American President has used the military of the U.S. to intervene in foreign affairs, but nearly all of these interventions were of a very short duration and limited to the Western Hemisphere. Moreover, the few instances of American intervention outside the Western Hemisphere, such as the introduction of troops into Shanghai in 1859 and China in 1911, were an attempt to protect American lives and property from mob violence or revolution.

As History Professor Henry Steele Commager has testified, “it is only in the last 20 years that Presidents appear to have thrown caution and even constitutional scruples to the wind and ventured, on their own authority, into military operations that could only be termed acts of war.

The arguments for allowing the Executive Branch to engage in foreign military operations without the consent of Congress, are simple. The heightened pace, complexity and hazards of contemporary existence often require rapid and clear decisions without having those decisions subjected to prior publicity. We are told that secrecy in foreign affairs is invaluable, and that a credible military deterrent depends on a perception by other nations that our country is resolute in its determination to take decisive immediate action. Such action, the reasoning goes, is inimical to the nature of a deliberative body such as the U.S. Congress.

I am well aware that secrecy has its place in modern political institutions. I have no doubt that last year's détente with the Peoples Republic of China, for example, was at least partially due to Dr. Kissinger's ability to steal off into the night. The function of secrecy, however, ends when we begin talking not about détente, but the commitment of American men and material to a foreign military action, The country is based on

the apparent conviction that the best government is not necessarily the most efficient one. It is very disconcerting to hear it argued that the U.S. Constitution must be circumvented because speed and efficiency demand it. If the framers of the Constitution thought speed and efficiency demanded anything, they certainly would not have devised a system of government whose byword is caution, deliberation and compromise.

Five times in the last 12 years American presidents have mounted major military interventions in foreign nations without prior consultation with the Congress. These include the Bay of Pigs, the Invasion of the Dominican Republic, and the attacks on North Vietnam, Cambodia and Laos. Of the five, none were in response to an emergency; only one, the action in the Dominican Republic, could be remotely defended on the grounds that it was intended to protect American lives; and in all given cases it probably would have been better to break Executive secrecy and subject them to Congressional scrutiny.

Let's look at the record of these five actions. The Bay of Pigs was marked with ill-conception, mis-management and poor intelligence from start to finish. The invasion of the Dominican Republic began as an attempt to protect American tourists and ended as a massive intrusion into a foreign civil conflict. It precipitated a serious disintegration of the U.S. position within 0.A.S.

The Cambodian "incursion”, billed as the Normandy invasion of the Vietnam conflict, succeeded only in capturing bags of rice and caches of outdated Communist weaponry, and the attacks on North Vietnam and Laos speak for themselves. They destroyed a countryside, but failed to bring either a speedy or honorable end to the war, and really only created two more wars that required a negotiated “Peace with Honor”.

In retrospect, Mr. Chairman, it is clear that the long run interests of the Nation in all of these instances would have been better served if the President had submitted to the healthy delays of the legislative process.

There are a number of bills before this committee which seek to prevent a reoccurrence of past mistakes by placing restraints on the President's ability to commit U.S. troops in foreign actions. Most of these measures fail to take into account the central fact of the last eight years. The Congress always had the power to end the Vietnam war. It could always withhold money for the war, but it never did.

The Executive Branch controlled the debate on the war. Presidents Eisenhower, Kennedy, Johnson and Nixon, with their vast access to the media, succeeded in defining for the country and the Congress what Vietnam was all about what constituted victory and what constituted defeat. The Congress was faced with a

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fait accompli; it was either support the troops or face the extermination of those troops in South Vietnam. Given this state of affairs, it is not surprising that the Congress tended to accede to the President.

Thus, the bills before you that allow the President to commit troops for 30 to 90 days without the consent of Congress will fail to re-establish Congressional authority in this area. What Congress would vote for "surrender”, as defined by the President-once our soldiers have been fighting in some foreign land for a month? Congressional power to make war depends on our ability to control debate before the fact, before the Executive Branch establishes a stranglehold on information sources and the media.

I have introduced a resolution, H.J. Res. 315, which would sharply limit the President's ability to ease us into a war by placing concrete limits on his prerogative as Commander and Chief. My resolution would explicitly define "war” as used in the Constitution as any international combat situation to which 5,000 air, sea or land armed combat forces are committed outside the U.S. for more than 10 days. This Joint Resolution does not require Presidential approval which is the basic flaw in all the other bills before you. NO President will voluntarily limit his powers and NO Congress in recent years has had nearly two-thirds support to reverse Presidential intent on an international issue. I would, of course, except by implication a certain situation of “hot pursuit” where our forces were overtly attacked including the President's powers to effect immediate nuclear retaliation because of a nuclear onslaught.

The President could respond to a Pearl Harbor type situation, but if he intended to commit troops for more than ten days he would have to come to the Congress for support. It may be that even ten days is too long. It is conceivable that even in this short span of time the President could exert enough influence to make Congressional input moot. Nevertheless, I am convinced that we must establish a clear and hopefully effectual, limitation on Presidential prerogative in this area, and retrieve our Constitutionally authorized “power to make war". The passage of House Joint Resolution 315 would be a step in that direction.

Mr. ZABLOCKI. I shall not try to have a colloquy upon what the impact is when Congress formally declares war. However, we were told in hearings last Congress that some very serious complications follow. That is why in recent decades wars were not declared; but we had undeclared wars because of the problems associated with declared wars.

PROBLEMS OF UNDECLARED WARS Mr. LEGGETT. I think we found out that the problems associated with undeclared wars are far more complicated.

Mr. ZABLOCKI. That is the very reason we are now trying to find some legislative solution which can prevent wars of any kind or at least involvement in wars without the consultation and the approval of the Congress.

Your resolution is so brief that it intrigues me.

Mr. LEGGETT. I think you have to be simple to get involved in this area. Everything that I agree with, all of the objections to some of the resolutions that are on file

with this committee, as far as I am concerned it ratifies far too much and gives away far too much and just opens the door for reinvolvements in Vietnam-type situations.

I am of the view that I am no total pacifist, but I think when involve yourself in war, it should not be a simple extension of diplomacy, it ought to be a situation where you have got the virtual total commitment of the country.

We have seen the problems that have arisen where you don't have the total commitment as Mr. Matsunaga indicated. Even President Roosevelt had the time to come to Congress to get the declaration. I think if we are going to be involved in these slow wars of attrition in the future, we ought to put some fixed limits on and we are going to have to do that relatively unilaterally because I cannot envision any President of the United States watering down his benevolent dictatorial powers in any way whatsoever in this general field.

Mr. ZABLOCKI. Under section 2, do you mean that the President should be completely free to take military actions of less than 10 days duration and fewer than 5,000 men? After all, the President could send 5 aircrews with nuclear weapons to a small nonnuclear country. That then would be an act of war; would it not?

Mr. LEGGETT. Well, the thing is, you can't cover every situation, and I would not purport to try to respond to all of the hypothetical situations that obviously this very energetic committee might conjure up.

GETTING A HANDLE ON WAR POWERS I think what we want to do is to try to get a little bit of a handle on war power which is in the Constitution. That is the only purport of my resolution. I think you can only do it unilaterally. If the President has got the power to press a button and involve us in total nuclear war, he has obviously got certain other powers too, and I would presume that in the courts he would take this resolution at its face value and would interpret it in a reasonable way.

Mr. ZABLOCKI. I know your time is limited. Mr. Biester.
Mr. BIESTER. Thank you, Mr. Chairman.

I will be very brief in my questions also. You intrigue me with the proposition about too much flexibility in the action of the Congress with respect to war. Would you suggest that when we declare war that we set the conditions under which it would be stopped?

In other words, would we say unconditional surrender objectives or what?

Mr. LEGGETT. Well, implied would be peace with honor, of course, but I would say that certainly having been burned as I think everybody, hawk and dove alike, admits we have been burned to date, without attributing any cause or effect or victory or like that, I think we recognize that in these situations we need to relate more of the Executive with the Congress and with the country.

In certain situations, you might relate to a time limit, you might relate to a force structure, you might relate it to a division and again you would not be tying the hands, but you would be suggesting that they come back again.

Since we are getting involved in war piecemeal, let's go ahead and involve the Congress piecemeal in these declarations so we can get out of it in the same fashion.

Mr. BIESTER. In other words, the Congress should have a hand not only in starting it but in determining under what conditions it might end:

Mr. LEGGETT. Exactly.
Mr. BIESTER. Thank you.
Mr. ZABLOCKI. Mr. Fraser.


Mr. FRASER. Thank you, Mr. Chairman.

I want to commend our colleague for an innovative approach which I think clearly recognizes some of the difficulties in the other approaches. I think this effort, imaginative and creative as it is, leaves a lot of unanswered questions, but I do think it represents quite a different approach which may help stimulate the subcommittee thinking on this.

Mr. LEGGETT. Very good. I don't purport to have the answers to all the questions that you obviously have.

Mr. ŻABLOCKI. Should we have difficulty, we will call upon you. Mr. LEGGETT. Very good. I will be on the consulting committee. Thank you very much.

Mr. ŽABLOCKI. Congressman Dennis.

We wish to welcome you, Congressman Dennis, to the committee and to hear your testimony on your bill cosponsored by Mr. Rhodes, Mr. Smith, Mr. Erlenborn, Mr. McClory, and Mr. Buchanan, H.R. 3046.



Mr. DENNIS. Thank you, Mr. Chairman. I am privileged to appear before this distinguished committee on such an important matter as this. I do appear, as the chairman has said, on behalf of my bill, H.R. 3046, of which I am the author and which these other distinguished gentlemen have cosponsored with me.

If I may, I think I will open my remarks by trying to give briefly and in outline form what the provisions of the bill are, and they are as follows:

First, when there has been no declaration of war by the Congress, nor any attack on American territory, the President shall not commit the Armed Forces of the United States to combat or to situations abroad where combat is imminent or likely without prior congressional approval, except in cases of emergency or necessity--the existence of which emergency or necessity shall, however, be determined completely by the President.

Second, if the President determines that an emergency exists which justifies and requires the commitment of our Armed Forces to combat or to a combat situation abroad without prior congressional approval, and he goes ahead and does so, he shall immediately make a report in writing to Congress concerning his action.


Then, three under my proposal, the Congress shall within 90 days after receipt of that report take appropriate legislative action either to approve or disapprove the action taken by the Executive.

Fourth, if Congress approves the action taken, the President is thereafter required to make periodic reports on the situation at intervals of not more than 6 months, and at the time of each such report the Congress is again required, within 30 days of receipt of such report, to take legislative action to approve or disapprove what the President has done.

Fifth, if on receipt of the first report by the President or at the time of any subsequent report by the President, the Congress shall affirmatively disapprove what is done, and only in case the Congress does affirmatively disapprove, then the President shall terminate the

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