cally all of these bills involves institutionalizing to a certain degree of caution on the part of any Executive in carrying out his powers as Commander in Chief. And I wonder what is wrong with that?

SPECIFIC CONDITIONS CONTAINED IN S. 440

Mr. STEVENSON. In the first place, I do not accept your premise, because it seems to me where you have a bill like the Senate bill which does not even talk about consultation the first thing you do is you see whether a particular action comes within the four specific cases that are being dealt with. And if it does, I would suggest that maybe there would be less Presidential caution in that situation than where it is not all that pressing. Now, you say well, isn't the fact that the President is going to have to go to Congress in 30 days going to also induce him to be cautious. Well, certainly in some situations where the involvement is such that it is perfectly clear that he is taking the necessary action to exercise his constitutional powers in their narrowest sense, namely, to defend the United States against a sudden attack, there probably will be no problem in getting congressional approval. But in some of the other situations where it is not all that clear what the situation is, I am somewhat concerned about the effect of a 30-day deadline and a public discussion at the end of that time. I am not saying that Congress should not participate, but I think there are many ways that it could participate without having that one fixed formula and that one deadline.

Mr. BIESTER. Again, I guess I am going to have to come back to a word you use and this time it is "clear." If it is not all that clear he may even feel inhibited in his action. Do you think he should commit forces of the United States in circumstances which may directly result in hostility unless it is clear to him that it is in the best interest of the United States and if he cannot convince the Congress of the wisdom of the clarity of his position, do you think he should go ahead?

ACTING IN RESPONSIBLE, CAUTIOUS WAY

Mr. STEVENSON. To answer your last question, I agree with you completely, I think he should not. I think obviously, at least in my view, the President should be acting in the responsible, cautious way but there are situations that are very complex and where the time when you take certain action may be just as important in terms of the national interest as the specific action that you take and there may also be other circumstances in which consultation with a committee of Congress that could be conducted privately might be more in the national interest than a general debate. So I am not disputing your point, but I think it is too much of a straitjacket. I would like more Hexibility.

Mr. BIESTER. Would you clarify for me and I should like to clear this up-I apologize for asking you the concept of "letters of marque and reprisal." I have a recollection that those are authorizations to privateers in a nonwar situation. Am I correct about that?

Mr. STEVENSON. My history is a little rusty on this, but I think this goes back to an earlier day when it was customary without declaring war, without, in fact being engaged generally in hostilities,

for governments to authorize privateers to carry on certain actions and I think these provisions of our Constitution reflect really the practice of earlier day rather than the present day situation.

Mr. BIESTER. I would be correct, would I not, that the Constitution gave that power to the Congress in article I, section 8?

Mr. STEVENSON. That is correct.

Mr. BIESTER. Thank you very much.

CALL FOR BAR ASSOCIATION TESTIMONY

Mr. ZABLOCKI. Mr. Stevenson, in your prepared statement as well as in your colloquy with my colleague, Governor Thomson, you suggest holding off any action by the subcommittee until representatives of the bar association and other informed citizens groups can be heard. Of course, you do say in the statement that you are aware that the House Foreign Affairs Committee and the Committee on Foreign Relations in the other body did indeed hold hearings. This subcommittee held 11 days of hearings on war powers in 1970 and another 2 days in 1971 and 5 days this year. We have heard dozens of witnesses. In addition, the issue has been debated at length on the floor of the Senate and the House. So I must ask you, do you honestly believe that Congress has failed to give this issue due consideration?

Mr. STEVENSON. As I indicated, I do not blame Congress but I am, as a private citizen, very much concerned when this important public issue has not received the attention of some of the organized groups which I think should be considering it. There have been many witnesses but they have all been appearing in their individual capacity and I regret that the bar associations have not moved more quickly. There is an American Bar Association study underway. I think I would also say this, Mr. Chairman, that it is particularly the proposals for constitutional definition that arouse my concern. I mean clearly some of the other proposals, particularly along the lines that you have been addressing yourself to, do not raise such serious questions. So that it is particularly the area of constitutional definition that I would be very concerned in having Congress move on without hearing more on this subject.

Now, of course, your committee has dealt with this subject, but it is only recently and only in a very limited way that this subcommittee has moved to that approach.

ABA STUDY ON WAR POWERS

Mr. ZABLOCKI. The study to which you referred was authorized by the American Bar Association at its summer 1971 meeting-almost a full year after the Congress had passed the first war powers resolution. As I understand it, it is being carried out by the ABA's international law section, by a special steering committee on war powers study chaired by a New York lawyer, Mr. Lyman M. Tondel, Jr. In a telephone conversation with Mr. Berdes of our staff on March 19 Mr. Tondel described the study as one predicated on the ABA's belief that there should be a thorough and scholarly study of the war powers issue, its constitutional meaning as interpreted from the Constitutional Convention to the present day, and not in relation to any

specific incidents, wars for example. While the great stress is to be on its intended scholarliness, the study is planned in two phases. Phase I will be a scholarly historical review of constitutional meaning as supported by history, et cetera. This phase has been contracted to the Columbia University Law School. We have no idea when a report will be forthcoming on phase I. As I understand it phase II will involve an analysis and review of the scholarly phase I effort.

This will reportedly be done by a group of experienced international lawyers and will supposedly result in a final report which together with the phase I effort will constitute the final study. This is expected to be completed by the fall of 1974, which, I submit, is much too late for the 93d Congress to act upon their recommendations. Because vou have recommended that Congress withhold action until this report from the American Bar Association will be available, I must ask this question: What new ideas relative to war powers do you anticipate will be forthcoming from the American Bar Association or other organizations-ideas which have not already been discussed before this committee?

DEFINITIONAL APPROACH TO PROBLEM

Mr. STEVENSON. Mr. Chairman, as I indicated earlier, it is primarily with respect to the serious constitutional issues that the definitional approach to this problem raises that I feel the report of the ABA group and other reports by the organized bar would be helpful. I am in no sense suggesting that there should be a delay in trying to improve the consultation process, if this can be done either by getting a rule which will permit consideration of a joint committee or through working out reporting procedures. I would not have been concerned with the passage of the bill passed by the House last year. So that perhaps I should have narrowed my statement with respect to the necessity for awaiting reports by bar associations and put it more in terms of not acting in terms of constitutional definition without having the benefit of their views.

Mr. ZABLOCKI. Indeed, your word of caution would be more apropos to the Members of the other body where they appear to be gung ho in support of S. 440.

Mr. STEVENSON. That is absolutely correct.

Mr. ZABLOCKI. I did not want the record to show that you had such apprehensions about the House of Representatives.

Mr. STEVENSON. I appreciate your point. It is well taken.

Mr. ZABLOCKI. On page 4, Mr. Stevenson, you argue that effort to resolve the dilemma over the warmaking powers through a constitutional amendment would be-and I quote "not in the national interest." However, in the very next sentence you seem to equate the national interest with the President's power. That is on page 4, ❝*** the President's power to conduct an effective foreign policy ***". Do you believe that the Congress has any role whatsoever in the formulation and execution of U.S. foreign policy?

CONSULTATION AND COOPERATION

Mr. STEVENSON. I certainly do. That I think is implicit in my whole statement, that consultation and cooperation are the ways that our system of separation of powers works most effectively. Clearly, any President to be most effective requires both congressional and public support for his policies and it is only through achieving this support that policy can be maximally effected and furthermore Congress does have so many powers in this area. We talked a little earlier about the power of the purse. There is no question that foreign policy depends very greatly on congressional cooperation with respect to all sorts of financial implications of our foreign programs. Indeed, even the organization of the State Department itself is dependent upon cooperation with Congress.

Mr. ZABLOCKI. The power of the purse seems in recent years to be exercised to a greater degree by the Executive through the impoundment of domestic funding of certain projects. I will not go into the constitutionality of that particular action on the part of the executive branch. But I do think and I do agree that Congress does have this power of the purse. At times, however, situations make it very difficult for Congress to withhold moneys or funding when a decision has already been made. I am referring, for example, to the safety of U.S. Armed Forces sent to foreign lands where there is combat or imminent hostility. It would be foolhardy not to provide the necessary funds which would allow those troops to efficiently and safely conduct the mandate that was placed on them by the executive branch.

Mr. THOMSON. No questions.

Mr. ZABLOCKI. Let me ask one final question. In earlier testimony Prof. Alexander Bickel stated, and I quote, "A vast ambiguity now shrouds the allocation of the warmaking power." Would you agree with him in his statement?

INTENT OF FOUNDING FATHERS

Mr. STEVENSON. I would not put it quite that way. But I think it has been clear that I have felt that the question of the warmaking powers is something that the founders purposely attempted to deal with in a general way relying on the political interaction between the two branches of government rather than by specifying detailed rules. And I think I prefer the general approach rather than the detailed rulemaking approach in this area.

Mr. ZABLOCKI. I understand that, Mr. Stevenson, but if indeed there is ambiguity, there must be serious effort to correct it.

Mr. STEVENSON. Again, I guess my only quarrel would be with the word "ambiguity." I don't think that the Founding Fathers intended to be ambiguous. They intended to be general realizing that given diverse circumstances with which this country would have to deal over the years, that any attempts at a greater definition would soon be outdated in a not effective way of dealing with the problem. I prefer not to characterize that as ambiguity. I think they knew what they were doing and they provided for a general framework which could adapt itself to changing circumstances.

Mr. ZABLOCKI. When your successor, Mr. Brower, acting legal adviser to the Department of State, was before the committee, I suggested that this area of warmaking powers could perhaps be clarified by a resolution which would only restate those references to warmaking powers found in the Constitution of the United States-article I, section 8, which lists the powers of the Congress, and article II, section 2, the one sentence, which states, "The President shall be Commander in Chief of the Army and Navy of the United States and of the militia of the general States when called into the actual service of the United States." Although I asked the question somewhat facetiously it appears that he thought even this type of legislation would be subject to constitutionality. All I was suggesting was a mere restatement of the Constitution.

DEALING WITH QUESTION COMPLETELY

Mr. STEVENSON. Well, Mr. Chairman, it is a very interesting suggestion. My problem as a lawyer I guess, would be in knowing what significance to attribute to which provisions you selected and which you had left out because I think there would be other relevant provisions certainly if you were attempting to deal with the question completely. So that I would think that perhaps Mr. Brower's apprehensions were that you were not repeating the Constitution as a whole and if you repeated it as a whole, I am not sure that that would serve any purpose.

Mr. ZABLOCKI. Only those sections in the Constitution that deal with war powers would be repeated in legislation.

Mr. STEVENSON. Well, certainly, Mr. Chairman, the Constitution is the Constitution and it would not be altered by the fact that you in a resolution referred to these provisions. If in fact you were attempting to legislate these provisions into law, I cannot see precisely what the legal effect would be, because they are already the supreme law of the land.

Mr. ZABLOCKI. We would hope that would be the case but by restatement attention would be brought to those specific portions of the Constitution. Hopefully that would satisfy those who say the executive powers were increased by historical acceptance and development. We would bring it back to what the Founding Fathers had intended.

Mr. STEVENSON. It is an interesting suggestion. I would wish to urge you to include all the relevant provisions if you will.

Mr. ZABLOCKI. It would not be my intention to omit anything relevant. But I don't think you would suggest the committee should clutter the resolution with irrelevant portions of the Constitution.

AN ORIGINAL SUGGESTION

Mr. STEVENSON. I must say, Mr. Chairman, it is a very original suggestion. I am not sure what the executive branch or the public at large would make of that sort of legislation. I think you certainly have the tradition of referring to constitutional provisions in your bills but to in fact attempt to relegislate something that is in the Constitution, I am not sure that it might not confuse people.