action taken and disengage the troops involved as expeditiously as it may be possible to do so "having regard to, and consistent with, the safety of the Armed Forces of the United States, its territories and possessions, the safety of citizens and nationals of the United States who may be involved, and the reasonable safety and necessities, after due and reasonable notice, of allied or friendly nationals and troops." Sixth, the bill does not apply to hostilities which might be in progress at the time of its passage.

Lastly, it is prospective in character, and it does not in any way abrogate or alter existing treaty obligations, whatever they may be. Now, if you will permit me to analyze with you these provisions for just a moment, I think we can notice a few principles here. In the first place, this proposed bill applies only when there has been no declaration of war nor any attack on American territory; it does not apply at all in either of those situations. In other words, if there has been a declaration of war, if there has been an attack on American territory, the bill has no application.

PRIOR CONGRESSIONAL AUTHORITY TO ACT

Second, in those situations, it recognizes the principle that the President should have prior congressional authority to act. Under the circumstance where there is no declaration of war, no attack on the United States, he should normally have that authority before he engages in hostilities.

The next thing is that we recognize that emergencies may exist where it is not practicable to get prior authority, and the President is given full authority to act in these situations, and I do not make any attempt to list or categorize or set forth what these emergency situations may be.

Now that, I think, is the great difference between my bill and that of Senator Javits, the very distinguished Senator from New York, and in my judgment it is a great superiority my bill has over his for the reasons pointed out here by Mr. Fraser a moment ago that I don't think you can possibly foresee all of the emergency situations which may arise and spell them out ahead of time as the Javits bill attempts to do.

So I have made no effort to do that at all. I leave that to the President. But if he takes such action, the next thing is that he has to report to the Congress. Now, the point of that is that the Congress gets early information. Congress is required, under my bill, to act on that information-so it has got to take part in the decision and in its continuance; and the President knows before he acts that he has got to justify his action which, I think, has a salutary effect on what he may do.

Then, if Congress acts and acts approvingly, the next principle of the bill—and I think this is highly important-is that periodic reports are required so that he must keep us up to date at regular intervals. Again we are required to act. Therefore, if we go ahead and conduct the war, we are conducting it, we are taking part in this thing.

REPORTING PROVISIONS OF DENNIS BILL

Now, the reporting provisions are very similar to those of the measure introduced by the chairman, Mr. Zablocki. I must say, I can

certainly go along with the chairman's version of this much easier than I personally can go along with the version of the Senator from New York.

But the next thing and here is where the chairman's bill and my bill are very different-I provide specifically in my bill that if at the time of any of these reports, when the Congress is required under the bill to take action, the Congress should act to disapprove what the President has done, then the President is required to bring his action to a termination as speedily as it can practicably be done.

Now, that is a strength which is not in the resolution submitted by the chairman, and which I believe is an important point in this case. If you don't have that provision, although there is a report, what can Congress do about it?

Well, we can pass a sense of the Congress resolution, which might or might not have much force or effect. We can cut off funds, which I personally consider a very unhandy and not very good way to attempt to handle the situation at all.

My bill provides a remedy: Action with force and effect that we could take under those circumstances.

Now my bill stays away from the treaty problem, because I realize, as we discussed in here, just what we are obligated to under previous treaties is debatable. My own thinking would be that the requirement of "constitutional process" requires some action on the part of the Congress, but that language is not as specific as it might be, and in a way it begs the question, because it does not say what the constitutional process is.

I have preferred not to get into that problem here, and to draw something for the future; so I have simply said, without trying to determine what these preexisting treaty obligations may be, that we don't affect them by this bill; this bill is something that takes effect from now on.

That, basically, is an analysis of the provisions of the bill.

OLD AND CONTROVERSIAL PROBLEM

As the committee knows, this is not a new problem. It is one we have had ever since the founding of the Republic and it is a very controversial problem because there is nothing in the Constitution which dots the "i's" and crosses the "t's" and exactly gives you a crystalclear answer; and there is nothing in the gloss put on the Constitution by practice which does that either. Consequently it is possible to argue this thing, as people do.

But I am prepared to support the general position that the intent and purpose of the Constitution is that the decision to make war is basically a congressional decision, except in the case of an emergency situation; and that the role of the Executive, except in the case of an emergency situation, is to conduct the war after the Congress has decided to undertake it.

I think the specific language of article 1, section 8, of the Constitution and these various interpretations some of which I cite here in my statement and some of which have been made this morning by others-tend to support that position.

Now Madison, of course, spoke about the power of the President to "repel sudden attacks" and that has been translated, and I think not

entirely improperly, in present times, to include the power to act in any emergency which was necessary to the national defense.

This is basically what Secretary Rogers told the Foreign Relations Committee of the Senate when he testified in the spring of 1971. He cited, of course, a great many instances where that had been done without any prior congressional authority, and I cite some of them here in my statement which is before the committee.

LEAVING IT TO PRACTICE AND GOOD WILL

It is perfectly possible to make an argument that this is such a difficult and delicate proposition, and it is so difficult to draw the lines, and it is so hard to define it, that you should not make any effort at all, and that you should leave it to practice and to the good will and good sense of the Executive and of the legislative branch, rather than trying to draw legislative lines in this constitutional field. That is essentially what Secretary Rogers said to the committee. He recognized that both the President and the Congress should participate, but he objected to the idea of a legislative effort to draw the line.

Now, I think the difficulty with that position is that, whereas the Executive in the past showed considerable respect for congressional prerogative, over recent years-partly because of our default, partly no doubt because of modern situations-the Executive continually has taken more power in this field, and now, instead of doing minor things without congressional approval, we are getting into major operations and major wars without congressional approval.

Therefore, I have come to the conclusion that if we can legislate in this field in a way which will assure the congressional participation which I think everybody conceded there should be, and at the same time will not unduly circumscribe and hamper the necessary flexibility of the Executive, we should try to do it; and this bill is a serious minded effort, on a long-range view, to try to do that.

Now, there is one other problem that I think should be pointed out with Senator Javits' approach. I have already spoken about his attempt to categorize the situations where the Executive can commit troops.

SERIOUS FLAW IN JAVITS BILL

I think it is also a very serious fault with his bill-and this was pointed out by Senator Cooper, as you may know, in the Senate report on the bill when it was first reported out that the first three of his four categories, and particularly that which allows defense of the United States, are inherent constitutional rights on the part of the Executive.

That being true, how can we possibly pass a statute here which says that the President can exercise a constitutional right for only 30 days? Let alone the impracticality of that, I don't believe it is a constitutional proposition.

I don't think we can pass a valid law which will say to the President of the United States, "You can act to defend the country from an armed attack for only 30 days."

I think he can do it for 10 years if he has to, and I think that is a fatal defect in the Javits approach.

So, I have tried, as I said a moment ago, to draw a bill which would meet most of the criticisms of the other war power bills which have been presented, and which would assure the principle of congressional participation and continuing participation.

I think the continuing or periodic reporting, and the continuing requirement of action by Congress, is probably the heart of the measure and very important. This would give us in the Congress a method of bringing hostilities to a halt if we actually ever wanted to do so, and at the same time would leave the President, the Executive, the flexibility to act when he needed to act.

I think those are the objectives in which we are all interested, and I say to you, gentlemen, that I have made a serious effort to meet them in this bill. I submit it to you for your consideration, and I am glad to discuss it with you further as you may wish.

[The prepared statement of Mr. Dennis follows:]

PREPARED STATEMENT OF HON. DAVID W. DENNIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA

Mr. Chairman and members of the committee: I appear there today before your distinguished Committee in behalf of H.R. 3046, of which I am the author and of which Mr. Rhodes of Arizona, Mr. Smith of New York, Mr. Erlenborn of Illinois, Mr. McClory of Illinois, and Mr. Buchanan of Alabama are cosponsors. This is a measure entitled “A Bill to make rules governing the use of the Armed Forces of the United States in the absence of a declaration of war by the Congress of the United States or of a military attack upon the United States." Briefly, and in outline, its provisions are as follows:

(1) 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 by the President.

(2) If the President determines that an emergency exists in such situations which justifies and requires the commitment of our armed forces to combat or to combat situations abroad without prior Congressional approval, he shall immediately make a report in writing to the Congress respecting his action.

(3) The Congress shall within 90 days thereafter take legislative action to approve or to disapprove the action of the executive.

(4) If the Congress approves the action taken, the President shall thereafter make reports on the situation to the Congress at intervals of not more than six months, and the Congress shall thereupon (and within 30 days from the receipt of such report) again approve or disapprove the action of the executive.

(5) If, on receipt of the first Presidential report or at the time of any subsequent report—as above provided-the Congress acts to affirmatively disapprove the action of the executive, the President shall thereupon terminate the action taken and disengage the troops involved as expeditiously as it may be possible to do so "having regard to, and consistent with, the safety of the armed forces of the United States, its territories and possessions, the safety of citizens and nationals of the United States who may be involved, and the reasonable safety and necessities, after due and reasonable notice, of allied or friendly nationals and troops."

(6) The bill does not apply to any hostilities which are in progress at the time of the passage of the bill.

(7) The bill noes not abrogate or alter existing treaty obligations of the United States.

I am pleased to be afforded the opportunity to appear before this distinguished Committee on the exceedingly important topic of the war powers of the President and the Congress-or the distribution as between Congress and the President of the war power of the United States, for I know of no topic, Mr. Chairman, which could be more vital to our nation or more worthy of our most painstaking consideration.

The problem before us is not a new one-it has been with us since the early days of our Republic.

It is a problem fraught with controversy because neither the presumed intentions of the framers, the language of the Constitution itself, nor the gloss given to the Constitution by years of interpretation by means of actual practice, has served to bring about a crystal-clear and indisputable resolution to conflicting points of view. I am prepared, however, after some study and consideration of the subject, to accept and to defend the point of view that the intention of the framers was, basically and in general, to lodge with Congress the power and authority to commit the Nation to war (subject to a right in the executive to act in emergency situations to-in Madison's words-"repel sudden attacks") while placing in the President as Commander-in-Chief the conduct and direction of the war once the commitment to war has been made.

I base this view on the rather specific language of Article I, Sec. 8 of the Constitution, plus such early and authoritative interpretations as that of Thomas Jefferson, writing to James Madison in 1789, when he said:

We have already given in 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.

and that of Alexander Hamilton who, in Federalist 69, wrote as follows:

The President is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It 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, while that of the British king extends to the declaring of war to the raising and regulating of fleets and armies—all which, by the Constitution under consideration, would appertain to the legislature.

The Supreme Court in The Prize Cases, 2 Black (67 U.S.) 635 (1862), moreover, while upholding the executive declaration of a blockade, remarked that "Congress alone has the power to declare a national or foreign war," and that "He [the President] has no power to initiate or declare a war". Chief Justice Marshall in Talbot v. Seeman, 1 Cranch (5 U.S.) 28 (1801) spoke of

"The whole powers of war being, by the constitution of the United States, vested in congress .", and Congressman Abraham Lincoln showed his understanding of the matter when he wrote to his law partner, Bill Herndon, and said: "The provision of the Constitution giving the warmaking power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This, our Convention undertook to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."

Proponents of the executive power argue that the rationale of the concept that the President might act "to repel sudden attacks" (which Madison stated as the reason for changing the proposed words giving Congress the power "to make war" to the words "to declare war") was, and is, broad enough to justify independent action by the President to use the armed forces to protect the nation's security in a variety of emergency situations; and they can and do point to a long list of actual occasions on which such executive action has, in fact, been taken. See, in this connection, the testimony of the Honorable William P. Rogers, the Secretary of State, before the Committee on Foreign Relations of the United States Senate on May 14, 1971. Secretary Rogers cited the cases of Mr. Jefferson and the Barbary pirates, President Polk and Mexico, President McKinley and the Boxer Rebellion, Theodore Roosevelt and Panama; actions by Presidents Theodore Roosevelt, Taft, Wilson and Coolidge in Mexico, other parts of Latin America, and the Caribbean; President Franklin D. Roosevelt's destroyers-for-bases agreements, with dispatch of troops to Greenland and Iceland; President Truman's action in Korea, President Eisenhower's landing of Marines in Lebanon, President Kennedy's quarantine of Cuba, and President Johnson's landing of Marines in the Dominican Republic, all as executive actions using and committing our armed forces without a declaration of war and often without prior Congressional authorization, and in that connection he said:

"I cite these historical precedents not because I believe they are dispositive of the constitutional issues your Committee is considering-far from it—but to ilustrate how the constitutional system adapts itself to historical circumstances.