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Mr. DENNIS. I don't know whether I thought that completely through. I intended to leave it rather flexible to the Congress what they wanted to do, but I would think "resolution" is broad enough to cover your concurrent resolution if that was what the Congress decided was the method to take.

Mr. FRASER. I would think that you would have to make that explicit or you would have difficulties.

Mr. DENNIS. Well, I would have no particular quarrel with it; although I think if you say "resolution,” that that includes any kind of a resolution within our prerogative.

Mr. Fraser. I think it might have, except you say "bill or resolution."

Mr. DENNIS. Well, bill or concurrent resolution or joint resolution. My only idea, really, was to let us determine at the time what is the best route.

Mr. FRASER. I think you have in your draft, if I may say so, dealt with many of the difficulties we have seen in other drafts. I want to commend you for a good effort.

Mr. DENNIS. Thank you.
Mr. ZABLOCKI. Gargantuan effort. Thank you, Mr. Dennis.
Mr. DENNIS. Thank you, Mr. Chairman.

Mr. ZABLOCKI. Unfortunately, because of our running later than we thought and conflicts in his own schedule. Mr. Harrington will be unable to appear as scheduled. His statement will therefore follow as though read at this point.

[The statement follows:



Mr. HARRINGTON. Mr. Chairman, I wish to thank you for the opportunity to testify today on my war powers legislation an issue which I regard as vitally important.

During the last century, the United States has witnessed an unparalleled expansion of Presidential warmaking power. This expansion has now reached dangerous limits which could undermine the system of checks and balances underpinning our constitutional system of government.

This history of the last 10 years offers striking evidence of the danger of increased Presidential power. We slipped into a war which no one wanted, and once in, found ourselves unable to get out, despite widespread public dissatisfaction and disillusionment of our course of action.


From a strict constitutional viewpoint, I believe the various war powers proposals before this committee are both proper and justified. Article I, section 8 of the Constitution clearly vests the authority to initiate war in the Congress. The absence of extended debate over the war powers in the Constitutional Convention and the historical record of the next 150 years clearly attest as to where that authority properly belonged.

However, since World War II, Congress power to initiate war has been severely eroded. The executive branch has pointed to changes in the world political situation, the emergence of the United States as

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a world power and protector, the revolution in travel and communication, and the development of atomic weapons, as justifications for the increased power.

The Congress, up to now, has accepted the President's explanations, and therefore must share the blame for any constitutional imbalances that have occurred. There was barely a word of protest when President Johnson asked for the Tonkin Gulf resolution.

But I believe most Members of Congress now believe that a mistake was made—that we have gone too far in delegating responsibility to the executive branch.

One of the major political phenomenon of the last decade has been the simultaneous assumption of concentrated power by the President and the decentralization of that power within the executive branch. The Pentagon papers, and David Halberstam's excellent book, "The Best and the Brightest,” both document the fact that not only the Congress lost control over the decision to go to war in Vietnam, but the President himself lost control over the bureaucracy.


This distrubs me as much, if not more, than the Congress-President debate. In recent years, strategic decisionmaking has been turned over to the technicians, and the record shows the bureaucratic momentum has overwhelmed both Presidents Kennedy and Johnson. If these men, who are both generally acclaimed to be strong Presidents lost control over the decisionmaking process, a real danger exists that future Presidents will be equally unable to control events.

The answer to this problem lies not in reform of the executive branch, but in a return of authority to the Congress. The two branches of Government respond to separate sets of pressures. The bureaucratic momentum which can overwhelm a President is not so strongly felt in the Congress, where power is diffused and the Members are more attuned to local interests, rather than to the interests of the departments and agencies.

There are legitimate circumstances in which Executive commitment of the Armed Forces are valid. But it is necessary to balance this authority with congressional authority. The legislation I have introduced established this balance. At this point, I will briefly outline the provisions of the bill:

Section I: Provides that this bill governs the use of Armed Forces in the absence of a declaration of war by the Congress.” In this bill we are dealing with undeclared wars—wars which have come to be called Presidential wars because of the constitutional process of obtaining congressional authorization has been shortcircuited.


Section II: It sets out the purpose of the bill to fulfill—not to alter, amend or adjust—the intent of the framers of the Constitution to insure that the collective judgment of both Congress and the President is brought to bear in decisions involving the introduction of Armed Forces into hostilities.

Section III: It defines the emergency conditions in which, in the absence of a declaration of a war by Congress, the Armed Forces of the United States may be introduced into hostilities or in situations where eminent involvement in hostilities is indicated by the circumstances. The conditions are:

1. To repel an armed attack on the U.S.A., its territories and possessions; to take necessary and appropriate retaliation in the event of such an attack and forestall the threat of such an attack.

2. To repel an immediate attack upon the Armed Forces of the U.S.A. located outside the United States or forestall such an attack.

3. To protect the evacuation of U.S. citizens from foreign lands. These conditions give the President a change to act forcefully against any aggressor and provide a deterrent for any potential aggressor, but they do not give him a carte blanche.


Subsection 4 of section 3 sets forth the criteria by which the Congress can "pursuant to specific statutory authorization” give the President advance authority to take emergency action. In codifying this authority, the Congress is exercising its own constitutional power “to make all laws which shall be necessary and proper for carrying into execution * * * all other power vested by this Constitution in the Government of the United States, or in any other department of officer thereof." It was judged important to specify that the authority to use Armed Forces is not to be inferred from any provision of the law including appropriations, unless such authority is explicitly provided. This includes treaties past, present or future unless legislation is implemented to authorize the use of Armed Forces. These requirements provide first for an exchange of knowledge between the Congress and the President; second, this subsection provides against "area resolutions" such as the controversial Tonkin Gulf Resolution. The subsection also requires specific statutory authorization for the assignment of members of the Armed Forces to participate in combat related to military activities of the regular or irregular forces of any foreign country--this clause provides against the gradual escalation of war without congressional consent by the introduction of military advisers such as in Vietnam.

Section IV: Specifies that the President shall report promptly to the Congress in the event of an outbreak of hostilities. This section provides against the gradual escalation of war without congressional consent, also the hampering of action by Congress due to lack of information and above all it makes the President accountable for his actions.

Sections V and VI: The 30-day authorization period—these sections resolve the modern dilemma of reconciling the need for speedy and emergency action by the President in this age of instantaneous communication and intercontinental ballistic missiles with the urgent necessity for Congress to exercise its constitutional mandate. This 30-day period can be shortened or lengthened by the Congress,

INSURING PRIORITY CONSIDERATION BY CONGRESS Section VII: Establishes strict procedures to insure priority congressional action to extend or foreshorten the 30-day period as provided in sections V and VI. This section eliminates the possibility of delaying actions.

Section VIII: Contains a separability clause specifying that if any provision of the bill should be held invalid, the remainder would not be affected thereby.

Section IX: Specifies that the bill would take affect on the date of its enactment but would not apply to the hostilities in which the Armed Forces of the United States were involved prior thereto.

I hope that in this short analysis and summary that the members of the subcommittee will see this bill as a flexible and sensible method to restore Congress constitutional powers.

Since 1970 we have seen a great number of war powers bills, resolutions and joint resolutions introduced. They have all been of varying degrees of comprehensiveness. My bill outlined the entire problem in great depth. It provides a solution which is both necessarily flexible in the advent of unforeseen circumstances yet it is firm enough to assure that Congress maintains its warmaking authority. It does this by outlining in great detail when the President can use Armed Forces in emergency conditions. But as it gives the President power in emergency conditions, it also includes provisions that make sure first, that he can't act against the public will; and second, the bill by its constitutional priority provisions makes sure that any initiation of war can be discussed in Congress as soon as possible. In addition, my bill and the Javits bill have widespread support in Congress. The Javits bill passed the Senate in the last session. This year it has 58 Senators cosponsoring it, including both the majority and minority leaders.

Mr. ZABLOCKI. The subcommittee stands adjourned until 2 o'clock Tuesday, March 13, when we will hear Department of State witnesses.

(Whereupon, at 12:20 p.m., the subcommittee adjourned, to reconvene at 2 p.m., Tuesday, March 13, 1973.)




Washington, D.C. The subcommittee met at 2:10 p.m., in room 2200, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman) presiding.

Mr. ZABLOCKI. The subcommittee will please come to order.

This afternoon we resume our hearings on war powers legislation pending before the Congress. This is the third of 5 days of hearings. Our witness today is Hon. Charles N. Brower, Acting Legal Adviser for the Department of State. His testimony will express the administration position on the war powers issue.

Mr. Brower, we are pleased to have you with us. If you will proceed, please.


ADVISER, DEPARTMENT OF STATE Mr. BROWER. Thank you, Mr. Chairman. I appreciate very much the opportunity to testify before you this afternoon on the very important subject of proposed war powers legislation.

I should say I am particularly pleased to be able to testify on what I consider to be a unique occasion. This I think is the first time in the long history of these deliberations on such legislation that we can consider such legislation free from the distraction of major American involvement in hostilities overseas, and divorced from the special political pressures of an election year.

I believe also that the stunning foreign policy success which President Nixon has achieved in his first term precisely through the judicious exercise of his constitutional authority must also be considered as part of the background to these deliberations. I would hope that the general perspective on these issues can now be somewhat broader.


The changes in the public environment are particularly significant since war powers legislation has undoubtedly had its genesis in disenchantment with the protracted hostilities in which the United States became engaged during the last decade. Blaming those events on the

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