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improvident decisions. I do have some concern with section 7 in S. 440, the congressional priority provision. It appears that section 7 almost insures precipitous action by the Congress on the question of war making powers.

Given the monopoly over the information about the crisis which Presidents usually claim and which they are too often reluctant to share with Congress, won't that certainly result in Congress rubberstamping what a President does? Indeed, we would have an improvident decision if the resolution is brought directly to Congress bypassing committees which would hear the testimony. Further, would Congress have to act 1 day after the resolution was introduced?

Senator Javits. Again, like a previous question, if your premise was right, you would be right, but your premise is not right for this reason: It mandates a very expeditious procedure if the Members of each House do not change that procedure, which they can do by a majority yea or nay vote, and I beg you to notice that. All the provisions here for expedition are simply to prevent a minority from blocking the majority. They are not designed to block the majority because it says

that “The bill shall be considered reported no later than 1 day following its introduction unless the Members of such House otherwise determined by the yeas and nays.

"It shall be reported to the floor ***” and so on. "It shall become the pending business and shall be voted upon within 3 days unless such House shall otherwise determine by the yeas and nays.

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In short, the majority has complete control over the extent of the deliberation in which it engages, but we do not wish to enable a minority to let the 30 days run out and, therefore, like a Senate filibuster, succeed simply because of stubborn minority resistance.

That is all I am trying to say.

Mr. ZABLOCKI. Not having experienced a filibuster in the Senate, 1 am not familiar with such tactics.

Mr. Du Pont. Do you believe that that language effectively prevents a filibuster in the Senate?

Senator Javits. Yes, sir, we have it in the Reorganization Act the same way. You cannot filibuster a Reorganization Act resolution. It has substantially the same terms.

Mr. FINDLEY. Senator, as I read it, your bill S. 440 in its reporting requirements does not require that the President report in writing promptly to the Congress whenever he places forces equipped for combat on foreign territory, airspace, or water.

It has to be related to hostilities or the imminence of hostilities before the report is required. That strikes me as a serious defect. In the House language it "*** would require the report whenever forces equipped for combat are placed on foreign territory, airspace, or waters for whatever purpose or whenever such forces are substantially enlarged."

Would you agree with me this is an important distinction?

Senator Javits. I would give the most careful consideration to that. That involves serious questions of policy, and perhaps Jack Bingham and Congressman du Pont would also like to see some other definition

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to catch up with the matter of advisers, and that would be the place to do it because that would spark the rest of our bill.

I would want to consider that very carefully in view of the other opinions expressed, like those of Mr. Fountain, Governor Thomson and Mr. Biester: that the President has broad deployment power. It is a question of balance.


Mr. Findley. How could you interpret the reporting requirement as an inhibition on the President's deployment power? All he has to do is report.

Senator Javits. That is right, but as Mr. Biester said, and I think properly, on occasion a report which is a public report may be an inhibiting factor because of the delicacy of negotiation, et cetera.

Mr. FindLEY. But the Committee on Foreign Affairs in considering its legislaticn in the past has taken into account the very strong likelihood that these reports might be carefully and very heavily classified, if not in whole, in part. We take into account the possibility that a report might carry the highest classification when it is transmitted to the Speaker of the House or the President of the Senate.

Senator Javits. I compliment you on that. I am, in general, impressed with the House's reporting provisions, but I would require him to report in terms of the authority specified within the billthat is, section 3—and not just any claimed authority.

We already show in our now bill that impact and I am sure as the result of a conference, the bill will show even more of the House's impact. There is no question about the fact that the House's, being essentially a reporting bill, has very thoroughly implemented that concept, with the caveat I mentioned about the citation of authority claimed by the President.


You concentrated on it, and you did the best you could with it but we shouldn't leave an open invitation to invent claims to authority outside the terms of the bill itself.

Mr. FINDLEY. There is another important distinction between the House language on reporting and the one that is in your bill. Under section 4 you state that "* * * the report must give full account of the circumstances, the estimated scope and the consistency of introduction of forces into hostilities.” I am paraphrasing.

There is no requirement that the President in his written report cite the legal justification for the introduction of military forces into such circumstances.

Senator Javits. I think the implication is clear on that point in referring back to section 3 of S. 440 which gives the President affirmative authority in certain circumstances. We call for the legal justification, but if it needs to be spelled out more clearly, again I would certainly be instructed by the House in that area.

Mr. FINDLEY. If the report goes beyond circumstances of hostility, it would seem to me equally important, if not more important, that the legal foundation for the steps be required in the report, and I cannot think of any reason not to be specific on that requirement. Can you?

Senator JAVITS. No.


Mr. ZaBLOCKI. Thank you, Senator. You have been an excellent witness. I am quite optimistic that when both Houses will act on the proposals the differences will be resolved in conference.

Senator Javits. Thank you, Mr. Chairman. I deeply appreciate that. That is probably the most important thing that has been said at this hearing so far.

Mr. ZABLOCKI. Senator Eagleton is our next witness.

Senator Eagleton is a graduate of Amherst College and the Harvard University Law School. Following terms of office as attorney general and Lieutenant Governor of Missouri, he was elected to the Senate in 1968.

The subcommittee is pleased to welcome you here today.



Senator EAGLETON. Thank you, Mr. Chairman. It is a distinct honor to testify before your distinguished subcommittee as an advocate of the Senate war powers bill, S. 440.

Last month in a speech on the floor of the Senate, I called upon those who have participated in the drafting of war powers legislation in both Houses to resolve differences of approach by opening a constructive dialog. The kind invitation you have extended me to testify today is a clear indication that the members of this subcommittee desire to work expeditiously toward the day when Congress can speak with one voice on this important constitutional issue.

An overwhelming majority in both Houses now recognize that the responsibility of Congress to decide when our Nation goes to war has been usurped. But this majority has not been formed overnight. The distinguished chairman of this subcommittee was the very first to offer legislation to correct the institutional failure we have experienced in the warmaking area. The historic legislation that will finally emerge from this Congress will bear the mark of Chairman Zablocki's pioneering leadership.


There is considerable merit to be found in each of the proposals that have been made to legislate in this highly complex area. And no one Member of Congress can claim to have found the absolute formula which will serve both to fulfill the intent of the Constitution and allow for the exigencies of modern civilization.

If we are to find an enduring solution, we will have to subject our proposals to careful deliberation and collective judgment, the very characteristics that the founders considered to be the primary source of Congress' strength.

But deliberation must be an active process. The time has come for Congress to reassert its role within our system. The public is now keenly aware that it is wrong to wage war without the full consent of Congress and the people. We cannot risk the possibility that memories will fade before we have corrected the deficiencies that contributed to involving us in the most unpopular war in our history.

The issue before this committee today is not a partisan one. And, in the contemporary sense, it is not built on ideological bias. Those who have been active in seeking to correct the imbalance within our system represent a wide spectrum of political thought. Certainly the distinguished chairman of the Senate Armed Services Committee, Senator Stennis, and I have differed greatly on the efficacy of our involvement in Indochina. We both believe, however, that the decision to wage war must be made by Congress. As Senator Stennis has said;

The last decade has taught us * * * that this country must never again go to war without the full moral sanction of the American people. The only practical way for all parts of the Nation to participate in such a decision is through the Congress."

THE CONSTITUTIONAL QUESTION Before we can begin to correct the institutional deficiencies that were so dramatically exposed during the Vietnam years, we must first understand the nature of the constitutional crisis that now confronts


Congress' role in the warmaking area had seriously deteriorated long before we became involved in Vietnam. In the post-World War II period, Congress seemed, in large part, unconcerned with Presidential encroachments. "Symptomatic of this lack of concern was Congress' quiet acquiesence in the early 1960's as Presidents gradually involved us more deeply in hostilities in Vietnam.

When, in a time of apparent crisis, both Houses routinely approved a vaguely worded and ill-defined White House draft which became known as the Gulf of Tonkin resolution, there were few in Congress who understood that the awesome responsibility to decide whether, when, and to what extent America would engage in hostilities was being delegated to the President.

Whether or not the Members of this body understood the full consequence of their vote is now a moot point. Faulty vision and political pressures cannot be permitted to minimize the legal significance of the Gulf of Tonkin resolution.

The constitutional crisis we experience today has not come about because the Gulf of Tonkin resolution was passed, but rather because it was repealed on January 12, 1971. Since the date, President Nixon has relied almost exclusively on alleged Commander in Chief powers as authority for American involvement in Indochina. The war is now-we hope--coming to an end, but the constitutional question remains unresolved.

If the President's claim of power is allowed to stand without challenge, Congress will have lost its own powers by attrition. Instead of making the decision whether or not to authorize hostilities before they begin, we will be left in the position of either ratifying or attempting to reject Presidential faits accomplis.

The President cannot be allowed to initiate hostilities at will and then force Congress to muster a two-thirds majority of both Houses to stop him. That is precisely the problem we must address if Congress is going to regain its proper

role. would like to present today a defense of the bill that was passed in the Senate during the last session of Congress by an overwhelming

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68 to 16 majority. This bill, which was jointly authored by Senator Javits, Senator Stennis, and me, represents more than 3 years of concerted effort and careful deliberation. I believe that our bill has great merit, and I hope that this committee will give it close consideration.

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I would like initially to establish two basic points which I believe must be reflected in any responsible attempt to legislate in this area.

First, Congress alone was given the responsibility to decide on the crucial questions of war and peace. The record is clear that those in attendance at the Constitutional Convention were surprised and dismayed at the suggestion that the President be given power to make decisions which might result in offensive military action. As one delegate commented, he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

The two Founders who are considered to be ideological adversaries on the question of congressional versus Executive power, James Madison and Alexander Hamilton, were in accord on the war powers issue. In the Federalist Papers, Madison stated:

*** The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not the cause of declaring war

* * * Alexander Hamilton was equally emphatic when he declared that it was the “exclusive province of Congress, when the Nation is at peace, to change that state into a state of war

*** it belongs to Congress only, to go to war.”

Second, the Commander in Chief was given the authority to "repel sudden attacks.” The initial draft of the Constitution provided that the legislature should “make war.” But this phrase was changed because of a concern that that wording did not, in the words of Madison and Gerry, "leave to the executive the power to repel sudden attacks." The expression "make war" was then changed to "declare war."

As we now seek the legislative formula that will best help us to fulfill the intent of the founders, we do so with the perspective of almost 200 years of experience in working with the Constitution. This is to our advantage.

But the exigencies of modern warfare are far beyond the imagination of those who drafted our fundamental law. Today, the Commander in Chief can move whole divisions half-way across the globe in a matter of hours *** complex military alliances seem to commit us far beyond our own borders * * * and, perhaps most importantly, we can destroy ourselves and the rest of the world at the press of a button.

. To clarify the respective roles of Congress and the President in this environment is no easy task.

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During most of our history, the legislative and executive branches were able to operate within the gray area that separates their respective war powers with no clarifying legislation. This was possible

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