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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. 410 requiring congressional authorization for the prosecution of hostilities after a period of thirty 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 of the expansive theory of defensive war, situations "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 30day 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.
The 30-day deadline seems to me to be filled with booby-traps. 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 stout-hearted 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 commitment of force. This bill, S. 440, I greatly fear, woud be more likely to become a means of inducing formal congressivnal 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 hostilities--is founded on the unstated assumption that Congress can be relied upon to be more peace-minded than the 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 restraint.
As an 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. 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 whose 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.
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 I'resident Roosevelt from protecting the British lifeline against Nazi submarines ; 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. Wor, 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.
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 six months is sufficient. It would seem to me safer to require such reports no less often than every three 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. 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 war-making 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 H. J. Res. 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.” 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 resolutions 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.” 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 by 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 emergenccy 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 pint has 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. 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. 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.
Mr. ZABLOCKI. We will next hear from Professor Bickel.
STATEMENT OF ALEXANDER M. BICKEL, PROFESSOR OF LAW,
Mr. BICKEL. Thank you, Mr. Chairman. I am delighted to be here today and delighted to be side by side with Mr. Schlesinger.
I hope you will forgive me if I begin in a somewhat autobiographical vein. I was here once before, nearly 3 years ago, in June 1970, speaking to the same issues. My views have evolved somewhat since then, and I think it may be of interest for me to tell you how and why.
I affirmed on that earlier occasion, as I do now, the necessary and proper power of Congress to fill in the constitutional outline by prescribing in greater detail than does the Constitution itself, the allocation of warmaking power between the President and the Congress.
THE POWER OF CONGRESS
When I speak of the power of Congress, I mean, of course, the legislative process, which includes the President. In order to make law, Congress may have to act by a two-thirds vote, if it should encounter a Presidential veto.
But I expressed the natural doubt of a common-law trained lawyer about efforts at codification, which seemed to me to run the risk, as Mr. Schlesinger noted, of being either too restrictive in their definitions of Presidential power, or else of becoming, like the lamentable Tonkin Gulf resolution, blank checks.
This doubt extended to the Javits bill, what is now S. 440, of which I had then had a chance only hastily to examine an early draft. My conclusion was—and as I say, this was as of the summer of 1970that the most desirable form of congressional action would have been the exercise of some immediate control over the Vietnam situation and of the power of Congress over deployment of troops.
I said I believed it was Senator John Sherman of Ohio, the general's brother, who some time after the Civil War expressed the view that the way to resume specie payments was to resume, and I remarked that the way for Congress to resume control over the foreign and war policy of the United States was to resume, by specific action, then.
PRESIDENT REJECTS ADVICE
Needless to say, there was very little specific action then or in the years since then. In the Military Procurement Authorization Act of 1971, there was a provision declaring it to be “the policy of the United States” to end the war “at the earliest practicable date” and to undertake a "prompt and orderly withdrawal * * * subject to the release of all American prisoners of war.
The President rejected this advice, because advice was all it was. The amendment, said the President, describing its language and the intent behind it with total accuracy. “is without binding force or effect." Congress had shied from using mandatory language-"the President shall”_because it shied from the responsibility, and because it tried to avoid a veto which it very likely could not have overridden.
By the summer of 1971 I had become convinced that Congress could not be brought to resume exercise of its share of the war power through specific actions until it had in declarative fashion reallocated a share of the responsibility to itself.
The people tend not to hold Congress responsible, and its own Members shy from the responsibility. It became apparent to me that some quasi-constitutive act on the part of Congress, an act of standing forth before the people as responsible, was necessary before Congress could be expected to take any specific measures.
SERIOUS IMBALANCE BETWEEN PRESIDENCY AND CONGRESS
And so I became convinced that unless a declarative statute on the model of the Javits bill was passed, a great opportunity to redress what in my view was a serious imbalance between the Presidency and the Congress would be wholly lost.
The problem, I have long thought, is very serious. It is in the nature of our institutional arrangements that
any power vacuum will be filled by the President. Hence, in future as in the recent past, the President will act if there is nothing on the books that validly circumscribes his freedom.
Yet I think the Vietnam experience should have taught us that, barring a Pearl Harbor sort of exigency, or something that can convincingly be made to resemble an imminent Pearl Harbor, we cannot well fight Presidential wars.
It is useless, it is in the end an act of self-flagellation which helps nobody, including the ally we are supposed to be rescuing, and which does to ourselves domestically what the Vietnam war did. We need to reassert and refurbish the constitutional arrangements which in my judgment were intended precisely to see to it that the country did not get into wars unless it knew that it wanted to, or had been persuaded that it should as a nation, through the two institutions, the Presidency and the Congress, that together are fit to express the national will.
At the same time, successive drafts of the Javits bill, each an improvement on an earlier one, stilled my common-law doubts, taught me that general legislation, a kind of codification, is possible in this area, and that the risks and pitfalls are less forbidding than I had first thought.
SPELLING OUT LIMITS OF PRESIDENTIAL POWERS A law spelling out the limits of presidential warmaking power should not be necessary ideally; we would be better off if it weren't. It would not be necessary if Congress had exercised its undoubted powers in recent crisis situations, including Korea and Vietnam.
A responsible Congress would, I hope, have agreed to undertake the Korean action—there was time, if only a matter of days—and would, I hope, have refused to allow the massive intervention in Vietnam.
I cannot guarantee it. I am just expressing what I hope would have happened. But Congress stood by, partly at least because it shared a general confusion about the division of warmaking powers between itself and the President, despite the fact that the Constitution is, and used to be commonly understood as being, fairly clear on the subject.
When a Tonkin Gulf resolution or a Formosa resolution is put before the Congress, it goes through quickly because a substantial part of the membership is under the misapprehension that Congress is merely being asked to stand patriotically by the President, who is acting within the constitutional sphere of his own independent authority.
Thus, the late Senator Richard Russell, we are told, advised against