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To establish the constitutional point, if it can be established, will require a change in executive thinking and habits—a change that could be begun by passage of war-powers legislation that requires Presidential reporting and that guarantees Congress a meaningful, early opportunity to express its will on American involvement in hostilities.
Mr. BERGER. The source of Mr. Reveley's doubt about constitutional certainty arises from the practices of the President. Presidential usurpations do not impeach the clear delineation of powers in the Constitution; I cannot buy this "constitutional uncertainty" argument.
No. 2, I would differ about this question of the effect of a concurrent resolution very vigorously. I want to remind you that, in one of the soldier's cases brought to stop the Vietnam war, one of the circuit court judges of the First Circuit said the case would be different if Congress were here asking us to stop the war. I cannot put my finger on it but I remember it.
USURPATION OF CONGRESSIONAL POWER
I cannot conceive that a court that would stop Truman in the middle of the Korean war from seizing a steel plant when he said a strike would disrupt all our steel production necessary for armament, that that court refuse to decide a claim by Congress that “there is a usurpation of congressional power and we want a halt to this."
Gentlemen, I say you have to decide what your rights are; if you don't do that, you're always going to be stepped upon.
Mr. ZABLOCKI. Mr. Reveley.
Mr. REVELEY. Let me lay one ghost, or what I think is a ghost, to rest. That is Professor Berger's assumption that only the President has claimed for himself a broad constitutional prerogative to use force.
Some of the most eloquent statements regarding Presidential prerogative were made in the Senate during the debate over the constitutionality of Truman's action in Korea, and thereafter until the souring of the Vietnam war.
Mr. BERGER. That is a count of noses, and Congressmen can be as wrong as the President. A plague, a pox on going back to these pseudo authorities.
THE "HOLY WRIT” OF CONSTITUTION I want to go back to what Mr. Reveley calls "holy writ.” He admits that for 100 years, "holy writ” prevailed. He admits the people believed in "holy writ,” that is the Constitution. What right do we have to frustrate that belief in the intention of the Framers?
Mr. REVELEY. It started with George Washington.
Mr. BERGER. I would like to debate George Washington with you. I think I am familiar with what George Washington did do. I can read you something for the record, what George Washington said. George Washington said in his farewell address, "Don't usurp a power even when you think you are doing something good because the example you thereby set is worse than the good you accomplish and will destroy the Nation.” Those were George Washington's last words.
In any event I started out by saying I did not want you to accept a bunch of opinions merely because they concurred with mine. That is a count of noses. I remind you what Professor Bickel said. “I believe in the Constitution.” And that is what Professor Schlesinger said.
If we don't like the Constitution let's submit the issue to the people without any Madison Avenue euphemisms. Tell them the President thinks he has to be able to run this conutry alone and Congress be damned; and maybe Congress will be in such disrepute that the people will give it to him.
ELITIST GROUP MAKING DECISION
I will accept that, but I don't want a little elitist group making that decision.
Myres McDougal, a well-meaning man and fine gentleman, was afraid in the midst of World War II that we would have a band of willful men such as were led by Senator Lodge that would defeat the new League of Nations. He cried "Damnation on what Lodge did in the World War”; therefore we have to deprive this minority of the power to do that. The way to do that, he proclaimed, is to recognize that the Constitution has been changed ; adaptation by usage. He made an elaborate argument for executive agreements.
What did he emerge with? Instead of a little undemocratic "minorit"-one-third of elected Senators from all over the country--he has the President making executive agreements by himself.
Secret agreements the Senate cannot find out about. That is the kind of thing philosophers can emerge with. They do not look around the corner to see what may ensue. I would rather live with the wisdom of Madison and Jefferson and not McDougal. He argued for presidential agreements. I have chapter and verse on that. He went so far as to argue that there are certain agreements made under the independent power of the Commander in Chief that cannot be touched by Congress. Think of it, Congress by a statute can repeal a treaty, but it cannot repeal an executive agreement which is not mentioned in the Constitution.
NO PROPRIETARY INTEREST IN INFORMATION
I want to add one thing. Set up your own information gathering, says Mr. Reveley. The President does not have a proprietary interest in information which costs us millions to collect. Congress has set up the most elaborate information collecting machinery in the world and has made the mistake of depositing it in executive agencies. Now Mr. Reveley tells us "Let's duplicate that."
Deputy Comptroller General Robert Keller testified that when GAO tried to duplicate one little segment in Southeast Asia it cost us $170,000. Multiply it. I am a taxpayer. Why should we duplicate it. History shows that there is a plenary congressional right to require information from the Executive.
The Supreme Court said Congress has attributes of the legislative power that were enjoyed by Parliament; Parliament enjoyed untrammeled power to inquire. You have a right to information and I would agree with you Mr. Chairman. Information is at the root of good government.
Now, on confidentiality. The other day John Stevenson, former legal adviser to the State Department, came down to a conference in which I participated, speaking as gently as a sucking, dove, telling Congressmen: "We will work this out; let us cooperate."
They always talk like that when they are under the gun.
CONGRESSIONAL PARTICIPATION IN TREATY MAKING
In the treaty field I would say to the Senate, you are entitled to participate in treaty making from the word go, from the beginning, not just to serve as a rubber stamp. May I remind you that when you are playing with a fellow that plays tough, you have to respond in kind or you are just going to be beaten down to the ground.
Mr. ZABLOCKI. If I may pursue the provision of congressional right to limit or terminate use of force. Would you argue that it would be advisable to spell out in the resolution the procedure for congressional action in this area ? Or do you prefer ambiguous language ?
Mr. REVELEY. My preference is not to spell it out, though I believe that I did so in my alternative, more detailed war-powers proposal. Section 7 of that proposal, on page 32 of my written statement, says:
"Whenever a report is submitted by the President pursuant to this act both Houses of Congress shall proceed immediately to the consideration of the use of force cited in the report.
"By majority vote of both Houses, Congress may at any time ratify or limit or terminate American involvement."
By that, I mean congressional action through a concurrent resolution. In other words, Congress would not need to get Presidential signature or override Presidential veto in order to limit or terminate a use of force begun by the President without prior congressional approval.
Mr. ZABLOCKI. Do you prefer your more detailed war-powers act proposal or the simpler one?
THE EVOLUTION OF CONSENSUS
Mr. REVELEY. I prefer the simpler one for two reasons. First, because it covers less ground, it would be easier to understand and more likely to be followed to the letter. War-powers legislation must be understood and obeyed if it is to provide the starting point for the evolution of consensus about the pertinent constitutional rules, and if it is to push Congress and the President out of their present acceptance of executive dominance.
Second— I realize I keep saying this—a reassertion of congressional authority over the war powers depends much less on war-powers legislation than on the further development of congressional capacity and will to participate in use-of-force decisions, and on the exercise of that capacity and will through processes already in existence.
Mr. ŻABLOCKI. Gentlemen, you have been most generous with your time, however, I have one further question of Mr. Berger.
As you recall, in his testimony yesterday, Professor Schlesinger noted the Javits' bill must be submitted to the test of practical historical applicability in order to test the wisdom of the proposal. In your statement today you note it is not your purpose to defend the wisdom of the proposal but rather its constitutionality which has come under attack.
I would appreciate your comment on the wisdom of S. 440 and how it might have affected past situations.
For example, is it your contention that if S. 440 had been law in 1960 the United States would likely not have become embroiled in the Vietnam war.
INITIAL ACTION ON VIETNAM CONCEALED
Mr. BERGER. I think a President would have had very serious thoughts about embarking on the measures he did embark on. Of course our problem there is that a great deal of what was done was concealed initially. If you go through the Pentagon papers—some of it is summarized in Halverstan's book "The Best and the Brightest”—a lot of this was covert. For example, we were never told that we were waging clandestine war. We were never told that prior to the Moddox there was a scheme for sending forth Vietnamese raiders. We did not man them, but it was planned that they would conduct raids, and we were right in that area where we could get shot at. Legislation without a curb on deployment might not have it done. But I would say this: had you known that 15,000 men were being sent into combat, some Congressman could raise it on the floor and say, “This is prohibited by statute; and let's go on from there."
I might say I am not enamored of suits by individual Congressmen even for causes that I like. I like Congress to act as a body. That is what it is supposed to do. I am prepared to accept defeat at the hands of Congress as a body. I have trust in its collective judgment. When I stop having that I have to stop being a democrat.
T'he wisdom of this for me springs from a deeper well, Mr. Chairman, than testing any given commitment, whether it be the commitment of 15,000 troops or later 200,000 troops. It springs from the crying need for an assertion by the Congress of its constitutional rights. It needs to say, "Stop this constant erosion and invasion of our prerogatives.” We have a function to perform in interest of the democratic process.
RESTORING CONSTITUTIONAL BALANCE The first step is a construction by yourself of your own powers. The reason I like section 3 is not for what it can do. I did not stop to weigh on pharmaceutical scales what it can do. The reason I like section 3 is because it seeks to restore what is the original constitutional balance, equilibrium. Mr. Reveley would not deny that it was the intention of the Founders that Congress would have the vast bulk of the war powers and the only Presidential initiative would be on the invasion of the United States. That was admitted by the legal adviser of the State Department in 1966 and that it what section 3 says. If it does nothing else it will have one great virtue if we pass it. I think the President can then be halted in his tracks as a lawbreaker, and he should be.
I think it is an affront to our legal system to stomach violation of the law by the President. You cannot ask a highwayman on the street to obey à law if you cannot ask your President to obey a law. If I were in Congress I would stop at nothing to see that the President obeys the law. No doubletalk about it.
EXPRESSES APPRECIATION TO WITNESSES
Mr. FINDLEY. I would like to express my appreciation to both of these inen for testifying today.
I would like also to assure Mr. Berger that at least one Republican shares his convictions that he has just expressed so eloquently—it is not just Democrats that feel that way—and also to ask unanimous consent to include in the record the text of a letter from the Director of the CIA dated September 28, 1972, which sets forth very clearly the problem the Congress confronts in trying to make itself better informed and have access to information in the executive branch.
[The letter referred to follows:]
CENTRAL INTELLIGENCE AGENCY,
OFFICE OF THE DIRECTOR,
Washington, D.C., September 28, 1972. Hon. F. EDWARD HÉBERT, Chairman, Committee on Armed Services, House of Representatives, Washing
ton, D.C. MY DEAR MR. CHAIRMAN: This is in response to your request for recommendations concerning H.R. 10204 and an identical bill, H.R. 16334, “To amend the National Security Act of 1947, as amended, to keep the Congress better informed on matters relating to foreign policy and national security by providing it with intelligence information obtained by the Central Intelligence Agency and with analysis of such information by such agency.”
Generally, H.R. 10204 and H.R. 16334 require the transmittal of certain Agency information and analysis and the performance of certain activities for the Senate Armed Services and Foreign Relations Committees and the House Armed Services and Foreign Affairs Committees. Specifically, the bills:
(a) require full and current Agency reporting and analysis to the committees of all intelligence information collected by the Agency concerning relations of the United States to foreign countries and matters of national security;
(6) authorize any one of the four committees to impose special reporting, analysis, and, implicitly, related collection requirements upon this Agency;
(c) provide access to this information and analysis to all Members and all congressional employees designated by a Member and determined by the
committee concerned to have necessary security clearances. As you know, we have consistently made ourselves available to a number of congressional committees to provide substantive intelligence briefings and to answer questions which fall within their jurisdiction. The principal recipients of these briefings are: the Aeronautical and Space Sciences, Appropriations, Armed Services, and Foreign Relations Committees of the Senate; the Appropriations, Armed Services, Foreign Affairs, and Science and Astronautics Committees of the House; and the Joint Committee on Atomic Energy and the Joint Economic Committee. This current arrangement appears to have been satisfactory from the standpoint of the committees and has not been inconsistent with the responsibilities Congress has imposed by law upon the Director of Central Intelligence to protect intelligence sources and methods.
H.R. 10204 and H.R. 16334, on the other hand, pose a number of serious problems:
(a) The authority of congressional committees to impose special reporting, analysis and related collection requirements upon the Agency appears to be in conflict with the constitutional separation of powers by subjecting the Agency to executive direction from two separate branches of Government;
(6) The five-fold increase in the number of statutory clients for the Agency from one (the President as Chairman of the National Security Council) to five (the President and four separate committees of the Congress) would diminish the Agency's resources and capability to serve any one of its clients and inevitably lead to irreconcilable conflicts of priority and interest;