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STATEMENT OF HON. WM. L. DICKINSON OF ALABAMA

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Mr. Chairman, it is a privilege to appear before the Subcommittee on National Security Policy and Scientific Developments to speak in behalf of legislation to define the authority of the President to intervene abroad or to make war without the express consent of Congress.

I know there will be many constitutional experts who will testify before you on the technical aspects of this legislation, and I will not pretend to have their knowledge of the issue. Nevertheless, as a Representative of a segment of the American people who have a stake in the outcome of these hearings, I would like to go on record here today in favor of legislation which I introduced on this subject.

My bill, House Joint Resolution 250, would assure that any action taken by the President to commit any armed force of the United States to armed conflict with hostile forces outside the United States would be reported in detail to the Congress, which would then have 30 days to concur or dissent. Should the Congress dissent, the President would have 30 days in which to disengage all forces so committed.

Certainly, the President must be left with the power to repel sudden attacks upon the United States without congressional authorization for obvious reasons, and my bill would leave the President with that power. However, the Congress would then be able to review the President's action and determine the propriety of the action.

Many of my constituents have written me during the last 8 years both praising and condemning our actions in Vietnam. However, in most cases, the opening line of the correspondence went something like this: “I do not think we should have gotten involved in the first place * * *.” I have said the same thing myself many times, and I am sure many, if not all, of you have heard or said it on numerous occasions too. The lesson has been a long and bitter one, but hopefully we have learned from it. The American people have a right to be protected from another involvement of this nature, and it is up to the Congress, and specifically the gentlemen on this committee, to come up with legislation which will give us that protection.

We, as Members of Congress, have accepted the responsibility to speak for our constitutents and see that their views are taken into account when decisions of national impact are made. Therefore, let's stop shirking our duty in this area of vast importance to our people and pass legislation to assert our responsibility in making war policy. Thank you, Mr. Chairman.

STATEMENT OF HON. DON FUQUA OF FLORIDA

Mr. Chairman, members of the subcommittee, I welcome this opportunity to testify in support of measures which would define the authority of the President to intervene abroad or to make war without the express consent of Congress. I have been a cosponsor of this legislation in the past two Congresses and I feel that it is most important if we are to responsibly carry out the constitutional powers we are given over matters of war and peace.

Essentially, the legislation recognizes that war is too momentous and too awesome an undertaking to be decided by one individual or one individual and his closet personal advisers. Certainly, the framers of the American Constitution were nearly unanimous in insisting that their own people, through the Congress, assume such an awesome right. We are confronted with, many assert, a constitutional crisis. I wonder, however, if we are not witnessing the interplay of the legislative and executive branches under a living and dynamic Constitution. I applaud the efforts of this subcommittee and other of my colleagues in asserting the constitutional powers over war and peace which are rightly those of the Congress. We have been cited a list of nearly 200 U.S. military hostilities abroad without a declaration of war. Accordingly, the Congress has in too many instances stood idly by while the executive, with dubious constitutional grounds, has taken this country to and retained it in war. The introduction of the various war powers bills reaches to the very core of the division of powers between the legislative and the executive and I am pleased that the issue has finally been joined.

Senator John Stennis, a great American and strong supporter of this Nation's efforts in meeting our commitments to foreign nations, is a primary sponsor of this legislation and addressed the need for its enactment:

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.

I feel strongly that the original constitutional distribution of powers must be restored by statute in order to insure congressional participation in warmaking policy. In a superb article by Prof. Raoul Berger of the Harvard University Law School, it was demonstrated that the power to declare war was lodged in Congress as a guard against being "hurried” into war, so that no single man can involve us in such distress. The recent extrication of this country from the tragic conflict in Vietnam illustrates that it is indeed easier to go to war than it is to get out of one. Certainly, one purpose of the legislation we are now considering would be to make war more difficult to attain than is peace.

There is little question but that the Founding Fathers invested the President with the power to defend against sudden attack upon the United States. Certainly, I recognize and support the President's authority to react to such emergencies as it is essential to the defense of

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our people. The various legislative proposals provide for such exigencies and in no way inhibit the President from asserting his powers as Commander in Chief.

The legislation that I have introduced enumerates the war powers of the Congress contained in section 8 of article I of the Constitution which states that Congress shall have the power to declare war; to raise and support armies; to provide and maintain a navy; to make rules for the Government and regulation of the Armed Forces; to provide for calling forth the militia for organizing, arming, and disciplining the militia; and to make all laws necessary and proper for executing the foregoing powers. The Framers of the Constitution were most explicit in assuring the Congress of a concurring role in any measure that would commit the Nation to war. My bill specifically limits the power of the President to commit the Armed Forces of the United States to action in any armed conflict with hostile forces outside the United States to the period of war declared by Congress or the period of a national emergency declared by Congress if such commitment should last over 30 days. The President would have full authority to take whatever action he felt was necessary to repel sudden attack or to respond to a threat to national security. The President would, however, be required to report to Congress within 72 hours and explain in detail his reasons for, and his evaluation with respect to the effect and duration of, such commitment. If the Congress, within 30 calendar days after receiving such report, shall not by concurrent resolution approve or otherwise act on said report, such commitment shall immediately terminate, and the President, as soon as practicable but not later than 30 calendar days after such termination, shall disengage all forces so committed.

Since the introduction of my bill during the 92d Congress, I have had the opportunity to review the very thoughtful remarks of my colleague and friend, Dante Fascell

, which appeared in the pages of Foreign Policy, a well respected journal. Congressman Fascell has raised the question of whether the 30-day period in which the Congress must consider the President's request for congressional authorization of his commitment of U.S. Armed Forces, would result in the Congress proceeding in a hasty and rubberstamp fashion. Certainly, if such a time period would result in a rubberstamp approval of the President's actions, I would prefer a different approach. The Congress must have adequate opportunity to carefully scrutinize the President's evaluation of the situation and be able to independently analyze the threat or lack thereof. Accordingly, there is indeed a great need to provide a structure for influencing the President before he acts to commit American troops overseas in hostile combat. The debate on the exact mechanism for this consultation is exhaustive. It serves, however, to highlight the seriousness of the constitutional question confronting us.

The most important consideration, however, is to insure that the exercise of the war powers is a matter for collective judgment, wisdom and responsibility. Certainly, no altering of the Constitution is necessary. It is simply incumbent upon the Congress to enact such legislation as is necessary and proper to the discharge of its war declaring power and the President's Commander in Chief responsibilities. Again, I thank the subcommittee for this opportunity to present my testimony and I respectfully encourage you to report out an effective war power bill so that the Congress can resume its rightful place as coequals in the determinations over matters of war and peace.

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STATEMENT OF HON. BARRY GOLDWATER OF ARIZONA

Forgetful of the post-World War I period of the 1920's and the 1930's when this country was being called an isolated country and a fortress America, some in Congress seek to revive legislation which they, as their philosophical kin of the past, believe might prevent this country from ever again being drawn into another major conflict. In my opinion, this legislation, known as the war powers bills, is unrealistic, unwise, and unconstitutional. It makes no sense from the standpoint of safe or intelligent military planning. It is disruptive of our entire mutual security system which now safeguards world order. It is totally without any statutory precedent in American history. And, in my opinion, it invalidly prohibits the President in the exercise of his constitutional powers of national defense.

The specific legislation which has been introduced is so rigidly drafted it would leave the United States standing by helplessly in the face of an all-out attack against important friendly nations, such as Israel, with which we have no defense treaty, and would even block humanitarian assistance such as the 1964 Congo rescue mission in which the U.S. military saved almost 2,000 non-Americans from rebel atrocities.

There are two major approaches taken by legislation introduced in the House of Representatives. H.R. 2053 is typical of one of these schemes. It sets out only four narrow situations in which U.S. forces can be used. If an emergency does not fit one of the four situations which the draftsmen of the bill have foreseen, the President is prohibited from acting until Congress authorizes him, no matter how unten able the situation may become as a result of our failure to act. Even when the President may act, the bill places a limit of 30 days on his conduct. Another provision of the bill allows Congress to stop whatever action the President has started before the 30 days are up. Thus, what the bill gives with one hand it takes away with the other.

The other major approach is represented by House Joint Resolution 2. Although it utilizes broader, and therefore more flexible language, it too sets statutory limitations on the situations when the Armed Forces may be introduced in hostilities.

In essence, this raises many basic objections against any form of war powers legislation. First, I believe it is simply impossible to prophesy in any law all of the unexpected and unlimited variations of events when a President may need to take defensive action without advance congressional approval.

Second, these bills attempt to define the boundaries of the constitutional allotment of the war powers between Congress and the President, something the Founding Fathers never attempted to do. For the declaration of war clause does not confer upon Congress the sole power whereby the country can become engaged in war. In fact, the Constitutional Convention purposefully narrowed the authority of

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Congress by substituting "declare" for "make" in that clause. This was done in an age when the declaration was already in disuse, there having been 38 wars in the Western World from 1700 to 1787, the year of the Constitutional Convention, and only one of them was preceded by a declaration of war. From this, it is clear that even by the 18th century, the declaration had come to mean no more than a formal notice to the world and to one's own people that an already existing state of war was officially acknowledged. This is how it is defined in the sole standard dictionary of the English language then published, the famous Samuel Johnson work, and it is how the Constitution has been interpreted during the succeeding 183 years of practice.

The truth is, there are circumstances in which any President must have flexibility of action in order to meet a present crisis which might develop into an unalterable threat against our national security in the future, as well as to cope with a crisis which clearly presents a "direct and imminent" danger as described in H.R. 2053, or "extraordinary and emergency circumstances," as referred to in House Joint Resolution 2.

As early as 1836, John Quincy Adams stated:

However startled we may be at the idea that the Executive Chief Magistrate has the power of involving the Nation in war, even without consulting Congress, an experience of fifty years has proved that in numberless cases he has and must have exercised the power.

In all there have been at least 204 foreign military hostilities in the history of our Republic and only five of them were declared. Congress has never once passed a law blocking or ordering a halt to any of them. These incidents show a consistent practice under which American Presidents have always responded to foreign threats with whatever force they believed was necessary and technologically available at the particular moment. The idea that Presidential troop commitments are a recent development is a myth.

To those who contend this concept gives an unrestrained power to the President to do anything he wants, I would remind them that I am speaking only of defensive responses by the Executive. The President cannot conduct a war of aggression. He cannot begin a war of conquest of another's territory. He cannot bully another country with throats of armed action simply because we do not like its tariff policies or the way it governs its own internal affairs. His constitutional power of independent action is limited to self-defense of our country, its people, and its freedoms, whenever and wherever in his judgment a danger exists, imminently or prospectively, which compels a response on our part. And to those who contend this concept will lead to another Vietnam, I answer that this ignores recent history. In the words of a Washington Star editorial, the contention that war powers legislation would have stopped Vietnam “is a monumental piece of historical hogwash.”

It has now been judicially determined that Congress was involvad up to its ears in the expansion of the Vietnam war. I could detail at least 24 statutes in which Congress has specifically spoken of Vietnam over the past two decades and has authorized the conduct of thiet campaign. These collaborations, enacted after full and open devait, placed Congress knowingly and squarely behind U.S. military option tions in Southeast Asia.

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