WAR POWERS WEDNESDAY, MARCH 14, 1973 HOUSE OF REPRESENTATIVES, POLICY AND SCIENTIFIC DEVELOPMENTS, Washington, D.C. The subcommittee met at 2 p.m., in room 2200, Rayburn House Office Building, Hon. Clement J. Zablocki (chairman) presiding. Mr. ZABLOCKI. The subcommittee will please come to order. We resume this afternoon our hearings on war powers legislation. In earlier sessions, we heard Members of Congress who have sponsored a variety of measures in this area. Yesterday, the administration's position was expressed by Mr. Charles Brower, acting legal adviser for the State Department. Today we turn to witnesses who, because of their vast understanding of the intricate constitutional issues involved in this question, are regarded as experts. We are privileged to have with us two respected scholars who have written extensively on the issue. They are Arthur Schlesinger, Jr., historian, writer, Presidential adviser, and currently Albert Schweitzer professor of humanities at the City University of New York; and Alexander M. Bickel, noted constitutional law expert and professor of law at Yale University. We are pleased to have you here. Mr. Schlesinger, if you will proceed, please; then we will hear from Professor Bickel. STATEMENT OF ARTHUR SCHLESINGER, JR., ALBERT SCHWEITZER PROFESSOR OF HUMANITIES, CITY UNIVERSITY OF NEW YORK Mr. SCHLESINGER. Thank you. I will summarize portions of my statement on the assumption that the statement, as a whole, can be put in the record. Mr. ZABLOCKI. Without objection, the entire statement will be made part of the record. Mr. SCHLESINGER. As one much concerned with these questions both as a former Government official and as a student of American history, I welcome the opportunity to set forth certain views on the range of questions embraced by the war powers resolutions before this committee. These resolutions address themselves to a question of wide import and deep significance: the question of the democratic control of that most vital of national decisions, the decision to go to war. I am glad that this committee is conducting so careful an inquiry into the alternative modes of action open to Congress and the country. Of the various proposals before the committee, I shall refer first to the war powers bill as passed so emphatically by the Senate last year-S. 440. Let me begin by emphasizing that I heartily endorse the purposes of this bill. Nor do I have any any question about its constitutionality. I will skip the passages in my statement having to do with the constitutionality. I will be glad to go into that later if there is any doubt about that. THREE ELEMENTS OF S. 440 S. 440 contains three separable elements: (1) A definition of the circumstances in which the President can send armed forces into battle without a declaration of war by Congress; (2) a provision requiring the President to report periodically to Congress on the status of hostilities; and (3) a provision enabling Congress to terminate hostilities by statute or joint resolution. My difficulties with this bill arise from the first of these elements. Section 3 of the bill attempts to define the possible contingencies in which the President would be authorized to commit armed forces on his own initiative. History is exceedingly unpredictable, and the attempt to specify in advance all the circumstances that might justify unilateral Presidential action seems to me hazardous in the extreme. "The circumstances that endanger the safety of nations are infinite," Hamilton wrote in the 23d Federalist. Able and perspicacious as the sponsors of this legislation are, one wonders whether they can see so much more clearly into the future than the men who designed the Constitution. TOO LIMITING AND TOO EXPANSIVE In attempting to specify these contingencies, section 3 has the peculiar character, or so it seems to me, of being at once too limiting and too expansive. While on the one hand it seeks to pin down the particularity of circumstance that would legitimize unilateral Presidential action, on the other hand it gives its blessing to the theory that has justified the most extravagant instances of such action; that is, the theory of defensive war. I call your attention to the relevant phrases the power proposed in paragraph (1) to send armed forces into battle "to forestall the direct and imminent threat" of attack on the United States; the power proposed in paragraph (2) to send armed forces into battle "to forestall the direct and imminent threat" of attack against the armed forces located outside the United States and its possessions; the power proposed in paragraph (3) to send armed forces into battle in any country where American citizens are "subjected to a direct and imminent threat to their lives." Since no provision is made as to who shall make the judgment about the directness and imminence of such threat, it is to be assumed that the judgment is left to the President. I hardly need recall to this committee the warning issued by a Member of the House of Representatives exactly 125 years and 1 month ago: "Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion,” said Congressman Lincoln of Illinois, "and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect. If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, 'I see no probability of the British invading us,' but he will say to you, 'Be silent; I see it, if you don't." " RECOGNIZING STATE OF WAR Though this proposition did not apply to the Mexican War, where Congress had formally recognized the existence of a state of war, it does apply with great precision to S. 440. There is nothing more elastic than the theory of defensive war once that theory is extended beyond actual attack to alleged threat of attack. Presidents of a certain temperament may easily see direct and imminent threats on every hand; and, if Members of Congress fail to see such threats, "Be silent; I see them, if you don't." When one has seen this highly expansive concept of defensive war invoked to justify American attacks on neutral countries, one recalls Joseph A. Schumpeter's description of the foreign policy of the Roman Empire: "Here," he wrote, "is the classic example of that kind of insincerity in both foreign and domestic affairs which permeates not only avowed motives, but also probably the conscious motives of the actors themselves—of that policy which pretends to aspire to peace but unerringly generates war, the policy of continual preparation for war, the policy of meddlesome interventionism. There was no corner of the known world where some interest was not alleged to be in danger or under actual attack. If the interests were not Roman, they were those of Rome's allies; and if Rome had no allies, then allies would be invented. When it was utterly impossible to contrive such an interest-why, then it was the national honor that had been insulted. The fight was always invested with an aura of legality. Rome was always being attacked by evil-minded neighbors, always fighting for a breathing space. The whole world was pervaded by a host of enemies, and it was manifestly Rome's duty to guard against their indubitably hostile designs. EXPANSIVE THEORY OF DEFENSIVE WAR Nothing seems to me more perilous in S. 440 than the congressional sanction thus bestowed on the expansive theory of defensive war. The President has always had the power to repel sudden attacks on his own responsibility. But this bill would give him blanket congressional authorization to send armed forces into battle whenever he sees within the first three categories what he pronounces, by his own personal, independent, unilateral, and unchecked judgment, as "direct and imminent threat" of attack. As Senator Javits has frankly said, the bill "gives the President more authority to do what is necessary and proper in an emergency than he now possesses" and provides "ample play to the need of the Commander in Chief to have 'discretionary' as well as 'emergency' authority." The President must, of course, have the power to respond to emergency. But it would seem to me far better that he exercise this power on his own and not with the color of congressional authorization. I see no advantage in Congress thus giving away its independence and compromising its position in advance. A PRESIDENT ACCOUNTABLE TO CONGRESS On this issue, I agree with Senator Fulbright that a President "would remain accountable to Congress for his action to a greater extent (if he acted on his own responsibility) than he would if he had specific authorizing language to fall back upon. Congress, for its part, would retain its uncompromised right to pass judgment upon any military initiative undertaken without its advance approval." I have equal difficulty with the provision in section 5 of S. 440 requirIng congressional authorization for the prosecution of hostilities after a period of 30 days. This raises first of all a problem that is more tricky than it may seem: how to ascertain the date on which hostilities begin? Nor does the bill make this conundrum any easier of solution by mentioning, in an additional endorsement "where imminent involvement in hostilities is clearly indicated by the circumstances." What in the world does this mean? At what point does the commitment of armed force in response to actual attack or to speculative threats of attack trigger the 30-day authorization period? Had S. 440 been on the statute books in 1960, at what point would the 30-day deadline have applied to the American involvement in Vietnam? These are not frivolous questions. They go to the heart of the proposed legislation. THIRTY-DAY DEADLINE FILLED WITH BOOBYTRAPS The 30-day deadline seems to me to be filled with boobytraps. Most wars are popular in their first 30 days. These are the 30 days when the President who ordered the action overwhelms Congress and the press with his own rendition of the facts and his own interpretation of the crisis. It generally takes a good deal more than 30 days for other facts to emerge and other interpretations to win a hearing. With the President's immense advantages in his control of information, in his ability to define the emergency, in his capacity to rouse the Nation, it would take a very stouthearted Congress indeed to veto his request for the authorization of continued hostilities-except in those infrequent cases where differences have already crystallized in advance of the commitIment of force. This bill, S. 440, I greatly fear, would be more likely to become a means of inducing formal congressional approval of warlike Presidential acts than of preventing such acts. Moreover, the principle on which the bill is based-that the President must carry out the policy directives of Congress in the initiation and prosecution of military hostiliities is founded on the unstated assumption that Congress can be relied upon to be more peace-minded than the Executive. WAR IMPOSED ON A DIFFIDENT EXECUTIVE This assumption finds little sustenance in the historical record. In two of our five declared wars in American history-the War of 1812 and the Spanish-American War-Congress imposed war on a diffident Executive. One need go back no further than the Cuban missile crisis to recall, as Robert Kennedy has told us, that the congressional leaders, when informed by President Kennedy of the quarantine policy, "felt that the President should take more forceful action, a military attack or invasion, and that the blockade was far too weak a response.' A bill constructed on the supposition that the President is always a force for war and Congress always a force for restraint may have unexpected consequence when, as has been so often the case in our history, it is the Congress which is seeking war and the President re straint. As a historian, I feel that a legislative proposal of this consequence must be subjected to the historical test, by which I mean that we must carefully consider what its effect would have been had it been on the statute books in times of crisis in our past. CAPACIOUS THEORY OF DEFENSIVE WAR I will not enter here into the question whether S. 440 would have prevented the action undertaken by President Truman in Korea and by President Kennedy in the Cuban missile crisis. Both conceivably could have slipped through under the capacious theory of defensive war sanctioned in the bill, and neither probably would have been hampered by the 30-day deadline. I will concentrate rather on two other situations of equal significance: the undeclared naval war with Germany in the North Atlantic in 1941, and the war in Vietnam. In 1941 Britain, fighting alone in the West against Hitler, depended on American aid for survival. The Roosevelt administration felt that British collapse and Nazi victory would jeopardize the security of the United States. Accordingly, Roosevelt announced a "shoot-on-sight" policy in order to protect the British lifeline. It is not at all clear that this action falls within the categories of initiative permitted to Presidents by S. 440. In any case, it is fairly certain that Congress would not have sustained the shoot-on-sight policy after 30 days. For this was one of those cases where policy differences had been well crystallized before the commitment of force. One has only to recall the fact that in August 1941 the House of Representatives came very close to disbanding the American Army when it extended the draft by but a single vote. It is hardly conceivable that this same Congress would have authorized Roosevelt to pursue an undeclared war in the North Atlantic. CONGRESSIONAL BLESSING ON VIETNAM WAR As for the Vietnam war, President Johnson could unquestionably have got all the congressional blessing he wanted at any point up to 1968 and probably even then and thereafter. If S. 440 had been on the books, it would not have arrested American participation in the war; it would only have locked Congress deeper into the escalation policy. In short, the war powers bill would have prevented President Roosevelt from protecting the British lifeline against Nazi subma |