The real story is that Presidents and their Cabinet members have spent an enormous amount of time working with Congress and striving to put the two branches in unison. It would be folly to alter this longstanding constitutional arrangement by a mere statute. Congress does not need new legislation to give it a place in the political command centers. It already has a very forceful and effective policymaking position. Through its power of the purse, Congress has basic control over the size and strength of the military sinews with which the President can wage war. In addition, Congress can grant or withhold a multitude of emergency powers bearing on foreign trade and the distribution of strategic materials and other economic elements that comprise the Nation's defense machinery.

Members of Congress also enjoy a prominent public forum from which they can immediately and easily gain the ear of a free press and reach the American people directly with their own alternatives to executive policies. Moreover, Congress can reject treaties or resolutions with defense implications.

These are the means by which the founders meant for Congress to share in deciding questions of war and peace and, in my opinion, Congress cannot alter this arrangement by any legislation short of a constitutional amendment.

Mr. Chairman, before closing I would like to identify some of the specific areas which trouble me the most about the text of the measures and where there appears to be a contradiction between the plain language of the legislation and the explanations given by its sponsors. Since H.R. 2053 is similar to S. 440, a Senate bill with which I am familiar, I will direct most of my comments to H.R. 2053.

One. Senator Javits, author of the Senate version of H.R. 2053, argued the President can use his own "judgment and discretion" as to when an emergency fits one of the four situations when he can use Armed Forces under the bill.

Yet, nowhere in S. 440 or H.R. 2053 is there any language providing that the President may make an independent judgment of any kind under the bill. In fact, a legal brief introduced in the Senate hearings record by Senator Javits argues that the President is the mere executive arm of the Congress who must follow the dictates of the legislative branch. I would note that House Joint Resolution 2 is more generous to the Executive in this respect by providing in section 3 that U.S. forces may be used when the necessity to respond "in the judgment of the President" constitutes extraordinary and emergency

circumstances.

Two. The sponsors of S. 440 and H.R. 2053 claim the President can take whatever forestalling action is needed without waiting "until the bombs actually started landing on our soil." They claim the bill is not inflexible.

But the actual text of H. R. 2053 requires that before the President takes any defensive measure there must be an armed attack on the United States or our Armed Forces, or "the direct and imminent" threat of such an attack. In the case of an attack on a foreign nation, for example a part of Turkey where we have no troops deployed, the "direct" threat would be to that nation, not to the United States. The threat would be imminent to that nation, but distant to us. If a move against Turkey actually carried with it an implicit threat against the United States, it would only be because the attack set in motion a

chain of events which ultimately might represent a serious threat to us. If it is the sponsors' purpose to allow the President flexibility in these circumstances, as they contend, then they must intend "direct" to mean "indirect," and "imminent" to mean "some indefinite date in the future." In contrast, I might observe, House Joint Resolution 2 wisely avoids using the ambiguous and undefined terms "imminent" or "direct" threat and instead recognizes the power of the Executive to act whenever he sees any act or situation that "endangers" the United States or its citizens.

Three. The sponsors of S. 440 and H.R. 2053 claim it is the purpose of section 3, clause (4), to ratify the Formosan, Cuban, and Middle East resolutions as authority for the President to respond to crises in these areas.

The bill itself plainly states that no provision of law now in force shall be construed as authority for Presidential action unless it "specifically authorizes" the introduction of troops in hostilities. But all of the area resolutions mentioned do not specifically grant authority for the commitment of U.S. forces in armed actions. One, the Formosan resolution, does provide that "the President of the United States be and he hereby is authorized to employ the Armed Forces * * *" In contrast, however, the Cuban resolution states only that "the United States is determined" to take certain steps. The Middle East resolution is even weaker. It merely declares "the United States is prepared to use armed forces" and qualifies even this declaration by expressly providing that such employment shall be consonant "with the Constitution of the United States."

It must be remembered, Mr. Chairman, that a similar phrase "in accordance with constitutional processes,' as used in our mutual defense treaties, is argued by the authors of H.R. 2053 to mean that no specific authority is given pursuant to such treaties. The sponsors do not explain what the difference is between the term "constitutional processes" as used in treaties and "consonant with the Constitution" as used in the Middle East resolution. In short, the authors are reading section 3(4) as containing a proviso that these three area resolutions shall constitute specific authority for emergency use of American forces, when the section itself does not contain any reference at all to such resolutions. House Joint Resolution 2 is silent on this question, except that it allows the use of troops "pursuant to specific prior authorization" by statute or concurrent resolution. No prohibition is made in House Joint Resolution 2 as to what may constitute such an authorization, again granting an important area of flexibility that is missing in H.R. 2053.

Four. Senator Javits has claimed there is full authority for the U.S. 6th Fleet to be deployed in the Mediterranean at will by the President during times of crisis under S. 440 and H.R. 2053.

The bill itself, however, specifically directs that U.S. forces shall not be introduced in situations where imminent involvement in hostilities is at risk except in the narrow situations where the United States or U.S. forces are attacked or directly and imminently threatened with attack. In the 6-day Middle East War of 1967, for example, the United States itself was not directly threatened with attack; nor was there any imminent threat to American forces. There was an open and imminent threat made by Russia against Israel. Premier Kosygin actually called President Johnson over the hot line to warn

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that Russia was prepared to take military action against Israel. President's Johnson's prompt response by moving the 6th Fleet into the danger area in order to forestall Russian pressure on Israel would be prohibited under H.R. 2053 because no threat had been made against our own forces. For the sponsors of the bill to say that an American response is authorized in these facts reveals that the authors do not understand the implications of their own bill. House Joint Resolution 2 is not clear as to what action the President might take in the above situation.

Five. Senator Javits claims it would "be a faulty and distorted reading of the legislation," to infer that S. 440 and H.R. 2053 would prohibit U.S. personnel in the NATO integrated commands from exercising any functions without additional congressional authorization. The language of section 3(4) flatly states that specific statutory authorization is required for the assignment of members of the Armed Forces of the United States to "command" or "coordinate" in the movement of the military forces of any foreign country or government at any time when there exists an imminent threat that the forces will become engaged in hostilities. Thus, at the very moment when our participation in the NATO unified command would be needed the most, the bill squarely prohibits U.S. personnel from exercising any functions. House Joint Resolution 2 is silent on the question of whether this situation is covered by its terms.

Six. H.R. 2053 and S. 440 use three totally different ways of describing what constitutes an "imminent threat." Section 2 refers to "the imminent threat of attacks," while section 3 refers both to "situations where imminent involvement in hostilities is clearly indicated" and situations where there is a "direct and imminent threat" of an armed attack.

When is an attack "imminent" but not "direct and imminent"? When is our imminent involvement in hostilities "clearly indicated" but the threat of attack against our forces nor "direct and imminent”? The sponsors of the bill have never given an explanation of what the difference is between "imminent" as used in one provision and that used in another. House Joint Resolution 2 does not entertain this problem, though it presents a different one by using the phrase "extraordinary and emergency circumstances." What this means is left undefined and appears to be properly left for definition by the President in his judgment in the setting of each crisis as it may occur. In summary, House Joint Resolution 2 is clearly the most flexible legislation of the two in allowing room for protection of the United States and its 210 million citizens. But, in my opinion, it is unwise to legislate any rules in this field which is already treated by the Constitution and which has never been defined by Congress or the courts in our 183 years of life under that document.

Mr. Chairman, with your permission, I would like to ask that two recent law review articles on this subject may be printed with your hearings. One is a paper which I wrote for the law journal of Arizona State University and the other is a revised edition of an analysis of American military hostilities outside the United States without a declaration of war which my legislative assistant, Mr. Terry Emerson, first published in the West Virginia University Law Review. [The articles follow:]

EXHIBIT I

[Reprinted by permission from "Law and the Social Order", Arizona State University Law Journal, Volume 1971, Number Three]

The President's Ability To
Protect America's Freedoms -
The Warmaking Power

Barry M. Goldwater*

The Senate Foreign Relations Committee has ordered favorably reported Senate Bill 2956, which lays down rigid rules to govern the President's use of the Armed Forces in the absence of a congressional declaration of war. With this bill in the background, Senator Goldwater discusses the historical military actions taken by American Presidents and Congress' responses to these actions. He then examines the constitutionality of congressional limitations on the President's warmaking power and concludes that, while Congress holds control over the size and strength of the country's military machinery, the President's power to use that machinery when he feels the country is in danger cannot be restrained by congressional policy directives.

I. CONTEMPORARY SETTING

On November 17, 1971, President Nixon signed a $21.3 billion military procurement bill,' but emphasized in doing so that he would ignore a socalled end-the-war rider as being "without binding force or effect" and failing to "reflect my judgment about the way in which the war should be brought to a conclusion." Hours later, the House of Representatives rejected, for the fourth time in 1971, a proposal to set a specific deadline for ending the United States military involvement in Indochina."

Not to be deterred by two setbacks in one day, Senator Mike Mansfield, the distinguished Majority Leader of the Senate and author of the troop withdrawal amendment just torpedoed by President Nixon, promptly opened

*Member, United States Senate (Arizona).

1. Act of Nov. 17, 1971, Pub. L. No. 91-156, 85 Stat. 423.

2. 29 CONG. Q. WEEKLY REP. 2371 (1971). (The Act was signed Nov. 17, 1971.) President Nixon's comments were directed at section 601 of the Act, the "Mansfield Amendment." Id.

3. The proposal was in the form of an amendment to the 1972 Department of Defense Appropriations Act, H.R. 11,731, 92d Cong., 1st Sess. (1971), calling for a halt in funding for any military support by United States forces in or over Indochina after June 1, 1972. It was rejected by a vote of 163 to 238. See text of amendment at 117 CONG. REC. H 11,170 (daily ed. Nov. 17, 1971) and vote, id. at H 11,196-97.

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LAW AND THE SOCIAL ORDER

[LAW & Soc. ORDER

a new attack on the Executive's military authority. The next day another Mansfield amendment was reported to the Senate-a prohibition on spending attached to the 1972 Department of Defense Appropriation Act which sought to force the withdrawal of 60,000 American troops from NATO. This time the President needed no aid from the other Chamber, since the Senate voted on November 23 to reject the limitation by 39 yeas to 54 nays.

The senior Senator from Montana had yet one more challenge waiting in his campaign against Executive discretion, however, for only a week earlier the Senate had passed his third amendment of the year aimed at terminating all United States military operations in Indochina. The amendment set a final date for the withdrawal of all United States forces within 6 months, and was coupled to the Special Foreign Military and Related Assistance Act.' The first session of the 92d Congress might still be deadlocked over this issue had not the House of Representatives voted against the proposal a week before Christmas."

However, the most sweeping challenge of 1971 to the President's foreign policy prerogatives stayed alive. I refer to Senate Bill 2956, a bill to codify the rules governing the use of the Armed Forces in the absence of a declaration of war. This legislation, awesome in its implications, was ordered reported favorably on December 7, 1971, by a unanimous vote of the Senate Committee on Foreign Relations.10

Thus closed the legislative year 1971, the second succeeding year in which Congress had undertaken a massive effort to reverse what many members of Congress call the erosion of the legislative branch by Presidential usurpation." Many lawmakers and constitutional writers treat the current moves by Congress as a momentous occasion, precipitated by what they allege to be a completely unprecedented example of Presidential warmaking during the past quarter century." But is the experience of Executive initiative in the use of military force truly a modern phenomenon-a departure from long4. H.R. 11,731, § 744 (Star Print), 92d Cong., 1st Sess. (1971), as reported by The Senate Committee on Appropriations, S. REP. No. 92-498, 92d Cong., 1st Sess. 48-49 (1971).

5. 117 CONG. REC. S 19,516 (daily ed. Nov. 23, 1971).

6. See S. 2819, § 9, 92d Cong., 1st Sess., 117 CONG. REC. S 18,282 (daily ed. Nov. 11, 1971).

7. Id.

8. 117 CONG. REC. H 12,689-90 (daily ed. Dec. 16, 1971).

9. S. 2956, 92d Cong., 1st Sess. (1971), was introduced by Senator Javits for himself and Senators Stennis, Eagleton, and Spong. See text of bill, 117 CONG. REC. S 20,627–28 (daily ed. Dec. 6, 1971).

10. Daily Digest, 117 CONG. REC. D 1280 (daily ed. Dec. 7, 1971).

11. See pages 429-31 infra.

12. See, e.g., statements of Senators Javits and Eagleton, 117 CONG. REC. S 20,627-28 (daily ed. Dec. 6, 1971), and the testimony of Professors Commager, Morris, and Kelly, Hearings on S. 731, S.J. Res. 18 & 59, Before the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. (1971), reprinted in 117 CONG. REC. S_3353-62 (daily ed. Mar. 16, 1971) [hereinafter cited as Senate War Powers Hearings].