rines; and it would not have prevented President Johnson from intensifying the war in Vietnam nor President Nixon from carrying that war into Cambodia and Laos. If all this is so, then the bill will serve neither the purpose for which it was drafted nor the national interest of the United States.

All these considerations constrain me to believe that sections 3 and 5 of S. 440, however constitutional they may be, are ill considered, unwise, and filled with danger for public policy. Now, indeed, do these sections seem to me essential to attain the declared purposes of the bill.

For these purposes can be effectively attained, in my judgment, by the provisions in S. 440 providing for the reporting and the recall of hostilities. For this reason, Congressman Bingham's proposal, H.R. 317, seems to me to represent a greatly preferable approach to this complex problem.

FORESEEING ALL FUTURE CONTINGENCIES

H.R. 317 omits the impossible attempt to foresee all future contingencies; it omits the placing of the congressional imprimatur on expansive theories of defensive war; it avoids the perplexities and dangers created by the 30-day deadline. H.R. 317 retains, however, the usable and useful provisions of S. 440.

Section 3 of H.R. 317 provides for periodic Presidential reports to Congress on the status of hostilities. My only comment on this section is to wonder whether the requirement that the President must report to Congress at least once every 6 months is sufficient. It would seem to me safer to require such reports no less often than every 3 months. Sections 4 and 5 provide for the termination of hostilities upon the adoption by either House of a resolution disapproving continuance of the action taken. I am in agreement with the congressional priority provision in section 5.

As for the mode of termination prescribed in section 4, this is based on the precedent of the Executive Reorganization Act; and the reasoning behind it in this case is evident-that, since one House of Congress could defeat a declaration or authorization of war, one House of Congress should be able to prevent the continuation of undeclared or unauthorized war.

JOINT RESOLUTION AS APPROPRIATE FORM OF ACTION

From some viewpoints, a joint resolution passed by both Houses of Congress would seem a more appropriate form of action. I am not sure, for example, whether section 4 of H.R. 317, if on the statute books in 1941, might not have resulted in the termination of American protection of the British lifeline, though, since it would have required positive action by one or the other House, such termination could not have been achieved without a most intense national debate.

On the other hand, with the Presidential power to veto joint resolutions, the warmaking power would rest in the hands of one-third of each House, and this surely was not the intention of the Constitution. So, on balance, I am inclined to feel that the mode prescribed in section 4 is a feasible solution.

With this perplexity noted, I would urge on this committee the consideration of H.R. 317, which will, I believe, fulfill the purposes of

S. 440 without saddling the country with that curious melange of rigidity and permissiveness I find in S. 440.

As for House Joint Resolution 2, this proposal seems to me to suffer from two defects. It would appear to endorse the expansive theory of defensive war on Presidential initiative by authorizing the President to commit forces when "the necessity to respond" to situations endangering the United States constitutes in the Presidential judgment "extraordinary and emergency circumstances as do not permit advance congressional authorization."

PRESIDENTS COMPELLED BY EMERGENCY

While Presidents may be compelled by emergency to take action without congressional sanction, it does not seem to me, as I have noted before, essential that Congress should encourage them to do so by providing an appearance of sanction. The reporting provisions in section 5 seem to me admirable and might well be incorporated in H.R. 317. The provision for congressional action in section 6 seems to me vague and less satisfactory than the more specific provisions in H.R. 317.

In the interests of time, I will not comment in this statement on the other resolution before the committee, though I will be glad to do so to the best of my ability in the course of the hearing.

Before closing, I would beg the indulgence of the committee to suggest two other aspects of this general problem for your consideration. One means by which Congress could get a grip on the problem of war powers is through the exertion of its control over the deployment of armed force outside the United States.

I recognize that the constitutional authority of Congress to determine the commitment of forces outside the country has been in dispute. Nevertheless, I would recall to you the statement made on the floor of the Senate in 1912 by the eminent lawyer, Elihu Root, who had served as Secretary of War under McKinley and Secretary of State under Theodore Roosevelt. While expressing the hope that it would never do so, Root conceded that "Congress could by law forbid the troops' being sent out of the country."

GREAT DEBATE OF 1951

The more venerable among us can remember the "great debate" of 1951 when President Truman proposed to send four additional divisions to Europe. That debate ended inconclusively with the passage of a "sense of the Senate" resolution in which the Senate approved the sending of the divisions but added, over administration opposition, that no additional ground troops should be sent to Western Europe "without further congressional approval." Among those voting against inherent Presidential authority and for the principle of congressional control of troop deployment was Senator Nixon of California.

I would call this committee's attention to the statement by the Research and Policy Committee of the Committee for Economic Development in February 1972 entitled "Military Manpower and National Security."

This statement argues persuasively for a procedure by which Congress could regularly authorize and control the overseas deployment

of military manpower. The report recommends that Congress should annually and explicitly authorize the major overseas areas the number of troops that may be deployed outside the United States.

This need not limit the President's power to act in an emergency, for Congress can require of the President an after-the-fact accounting for emergency action; but it would give Congress a continuing voice in peacetime overseas deployments. This would go far, in my judgment, in restoring the proper balance between Congress and the Presidency.

My second point has to do with the vital question of information. Nothing has been more effective in obstructing the democratic control of foreign policy and in perpetuating monopolistic control by the national security bureaucracy than the myth of inside information— the "if you only knew what we knew" attitude.

SOUND AND INFORMED JUDGMENT

There is absolutely no reason why Congress should not have before it all the facts essential to sound and informed judgment on the large decisions of foreign affairs. This would require a marked change of attitude on the part of the Executive.

It would require the substitution of genuine consultation for unilateral briefing. It would require the end of the abuse of executive privilege. It would require the transmission of all executive agreements to the foreign affairs committees of both Houses, with appropriate provisions for secrecy when secrecy is really necessary.

It would require, it seems to me, the establishment of a Joint Committee on Intelligence on the model of the Joint Committee on Atomic Energy. It might well require, as Benjamin V. Cohen has proposed, the establishment by Congress of a commission with representatives from both Houses and from the executive branch empowered to exchange information and views on the most delicate and critical questions of foreign affairs.

SYSTEMATIC AND AGGRESSIVE EFFORTS BY CONGRESS

It will require above all more systematic and aggressive efforts by Congress to avail itself of the vast resources of knowledge in the public domain; for, in my experience, the great bulk of information necessary for intelligent political judgment is available to any citizen who will take the trouble to seek it out.

If Congress will arm itself with knowledge, with the control of overseas troop deployment and with some means of terminating hostilities undertaken on unilateral Presidential initiative, it will make long strides toward bringing the warmaking power under responsible democratic control.

Thank you.

Mr. ZABLOCKI. Thank you, Professor Schlesinger. [Mr. Schlesinger's prepared statement follows:]

STATEMENT OF ARTHUR SCHLESINGER, JR.

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 question about its constitutionality. I am aware that objection has been made that, in seeking to define the powers of the President, the bill is in derogation of his authority as Commander in Chief and is therefore unconstitutional. This objection seems to me without force. The notion of the office of Commander in Chief as a source of independent and inherent peacetime authority is relatively novel in our constitutional history. The Founding Fathers would surely have regarded it as a latter-day heresy.

For the men who drafted the Constitution made clear their very narrow interpretation of the office of Commander in Chief. "It would amount," Hamilton carefully explained in the 69th Federalist, "to nothing more than the supreme command and direction of the military and naval forces"-and he went on to distinguish this limited authority from the much broader authority of the British King. The President's power as Commnander in Chief, in short, was simply the power to issue orders to the armed forces within a framework established by Congress; it was, in particular, the power to conduct war once Congress had authorized war. As Commander in Chief the President would have no more power than the first general of the Army or the first admiral of the Navy would have as professional military men.

This view prevailed through the early republic. In 1850, the Supreme Court, in reviewing "the power conferred upon the President by the declaration of war" in the case of Fleming v. Page, said bluntly that, when he assumed the role of Commander in Chief, "His duty and his power are purely military." The theory that the Commander in Chief had larger powers first appeared during the Civil War, but this was justified, as Lincoln repeatedly said, by the emergency, noted in the Constitution in connection with the suspension of habeas corpus, of rerebellion and invasion. Lincoln's successors did not claim that their role as Commander in Chief conferred on them any special peacetime authority. In his 83 press conferences in 1941 up to Pearl Harbor, during the anxious time when our nation entered into an undeclared naval war with Germany in the North Atlantic, Roosevelt never once claimed that he had any special powers to bypass Congress by virtue of his office as Commander in Chief.

The Second World War gave Presidents the theory that this office was a residuum of inherent and independent authority, and in peace as well as in war. This theory did not have judicial sanction. In the steel seizure case of 1952, Justice Jackson rejected the expansive reading of the Commander in Chief clause. The office of Commander in Chief as thus invoked was, he said, a "loose appellation" advanced as support for any presidential action involving the use of force, "the idea being that it vests power to do anything, anywhere, that can be done with any army or navy." The President's powers as Commander in Chief, Jackson insisted, were to be "measured by the command functions usual to the topmost officer of the army and navy." Subsequent executive interpretations have ignored the Court but, despite self-serving pronouncements by members of the executive branch, cannot be accorded the status of constitutional gospel.

In any case, the idea that S. 440 is unconstitutional because its interferes with the President's authority as Commander in Chief is based on a conception of that office unknown to the men who wrote the Constitution-unknown, indeed, to most Presidents of the United States until very recently in our history.

S. 440 contains three separable elements: (1) a definition of the circumstances in which the President can send armed force 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; (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 force 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

93-626-73—12

infinite," Hamilton wrote in the 23rd 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.

In attempting to specify these contingencies, Section 2 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 circumstances 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 one hundred and twenty-five years and one 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, to-day, 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 if you don't.'" 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."

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 force 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. 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