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I have taken the time to compare these constitutional authorities because some critics of strong war powers legislation have argued that my bill and others tread on the President's power as Commander in Chief. Senator Jacob Javits addressed the relationship of the Congress' war powers to the President's function as Commander in Chief in an article he prepared for the New England Law Review. His remarks are worth noting:
Clearly, the drafters of the Constitution had the experience of the Continental Congress with George Washington in mind when they designated the President as “Commander in Chief” in article II, section 2. Thus, the legislative history'' of the constitutional concept of a Commander in Chief was the relationship of George Washington as colonial Commander in Chief to the Continental Congress.
That relationship is clearly defined in the Commission as Commander in Chief which was given to Washington on June 19, 1775, and which was formally returned by him to the Continental Congress on December 23, 1783.
I would like to quote the final clause of this Commander in Chief's Commission, because it establishes the relationship of the Congress to the Commander in Chief in unmistakable terms:
“And you are to regulate your conduct in every respect by the rules and discipline of war (as herewith given you) and punctually to observe and follow such orders and directions from time to time as you shall receive from this or a future Congress of the said United Colonies or a committee of Congress for that purpose appointed.”
Mr. Chairman, I do not believe that an examination of the Constitution—and its historical underpinnings—leaves much room for doubt about the intentions of our Founding Fathers. The basic premise of the Constitution, with its deliberate system of separation of powers and checks and balances, is that national decisions are the collective work of the people's representatives in Congress and of the President. By enumerating the war powers of Congress so extensively, the framers of the Constitution were intent on assuring the Congress a concurring role in any commitment of the Nation to war.
The problem, of course, is undeclared wars which circumvent the constitutional process of congressional concurrence. My bill, I believe, would return the role of Congress to its proper and contemporary perspective. Under its provisions, the President may act immediately to meet an emergency situation, without waiting for congressional action. He would be required, however, to withdraw U.S. troops within 30 days if Congress had not authorized continuation of the action within that time. My proposal gives the President the latitude and flexibility he needs as Commander in Chief to respond to any crisis. At the same time, it would bring Congress back into the decisionmaking process, a role also dictated by the Constitution. Should the Congress terminate Presidential authority to continue military hostilities, he is given enough flexibility to withdraw our troops safely.
Mr. Chairman, I am not one who is charging that Presidents have uşurped congressional warmaking powers. On the contrary, I blame the Congress for not developing a viable procedure whereby we can share in decisions to engage U.S. troops abroad which fall short of declared warfare. For this reason, my bill, unlike other war powers bills, focuses directly on the actual mechanics of congressional responsibility in warmaking decisions by creating a Joint Committee on National Security. This joint committee would bring together the leadership and authoritative Members of Congress in foreign and military affairs. A listing of the 24 members I propose is contained in an appendix to this statement. The President, at his option, could consult with the joint committee prior to taking a military action which requires congressional ratification. But he must consult with it within 24 hours after taking such action. The joint committee would serve as a liaison between the White House and the Capitol throughout deliberations on the President's action. In short, we will not only be requiring the President to consult the Congress but we will be designating with whom he must consult. I do not envision the joint committce functioning only in times of emergency. Rather, it should perform an ongoing role of consultation and dialog between congressional leaders and the executive branch officials responsible for military affairs. While the joint committee would have no legislative powers and thus would not interfere with the jurisdiction of established House and Senate committees, it would serve as a congressionally designated liaison between Congress and the President on national security matters.
In closing, Mr. Chairman, I would like to touch upon one further point. As you know, many of us who have sponsored war powers legislation so drafted our bills that they would not apply retroactively to the Vietnam war. My bill and the Javits bill, for example, state that the act shall not apply to hostilities in which the Armed Forces of the United States are involved on the date of enactment. However, with the total withdrawal of American forces from hostilities in North and South Vietnam, I believe the provisions of my bill would be applicable to any possible resurgence of that conflict. In addition, I believe that the War Powers Act should apply to the reintroduction of forces throughout Indochina if, by its enactment, there is an effective cease-fire throughout Indochina. I am concerned that unless Congress clearly defines its intentions along these lines, the result will be another battle of interpretation between the Congress and the Executive. Should this subcommittee act favorably on a strong war powers measure, I urge that these potential problems be dealt with as specifically as possible.
MEMBERSHIP OF THE PROPOSED JOINT COMMITTEE ON NATIONAL SECURITY
Chairman: The Speaker of the House.
Members: The Manority Leader of the House, The Majority Leader of the Senate, The Minority Leader of the House, and The Minority Leader of the Senate.
The Chairman and ranking minority member of each of the following committees: Senate Foreign Relations Committee, Senate Armed Services Committee, Senate Judiciary Committee, House Foreign Affairs Committee, House Armed Services Committee, House Judiciary Committee, and Joint Committee on Atomic Energy.
One Member of the House who is not a member of any of the aforementioned Committees tu be appointed by the Speaker of the House.
One Member of the Senate who is not a member of any of the aforementioned Committees to be appointed by the President pro tempore of the Senate.
One Member of the House who is not a member of any of the afcrementioned Committees to be appointed by the Minority Leader of the House.
One Member the Senate who is not a member of any of the aforementioned Committees to be appointed by the Minority Leader of the Senate. 1 Rotating chairmanship.
STATEMENT OF HON. ROMANO L. MAZZOLI OF KENTUCKY
Chairman Zablocki, I wish to commend you and your fellow subcommittee members for your prompt and timely consideration of this most vital legislative issue.
I feel quite strongly that there is no question more important to our long-term national security than the clarification of the limited powers of the President to make war without the express consent of Congress.
Accordingly, I wish you Godspeed in your deliberations, and submit for your hearing record the following newspaper article, which I wrote last month describing my views on this subject.
[The article follows:) BI-WEEKLY COLUMN No. 3—By Romano L. MAZZOLI, U.S. CONGRESSMAN,
THIRD DISTRICT, KENTUCKY At long last, America is disengaging from the longest and, in many respects, most costly war in our nation's history.
As our last troops are withdrawn and our prisoners reunited with their families, it will be tempting to dismiss the sordid memories of the Vietnam War from our minds.
But for us in Congress, the crucial moment is at hand. We must face up to the lessons the Vietnam conflict has taught us.
Perhaps, the most important of these lessons is one that our founding fathers foresaw 200 years ago when they drafted the Constitution.
The Constitution makes it clear that the collective judgment of the elected members of the Congress is the necessary buttress of any decision to commit our country to war.
The Constitution states that it is the Congress which shall have the powers to "declare war," "to provide for the common defense," "to raise and support Armies,” “to maintain a Navy," and "to make rules for the government and regulation of the land and naval forces.
In the years since World War II, the Constitutional war powers of the Congress have atrophied, while the Presidential powers have expanded.
In 1950, President Truman committed our armed forces to Korea without Congressional authorization. During the 1960s, our ation drifted into full-scale war in Vietnam, largely as the result of Presidential initiatives.
The President, of course, is designated by the Constitution as Commander in Chief of the nation's armed forces. As such, the President must certainly retain full powers to act swiftly in emergency situations.
No sensible legislator would seek, in any way, to hamper the President in repelling an armed attack upon the United States or in taking appropriate action when such an attack is threatened.
Similarly, the Commander in Chief must be capable of fully protecting United States troops and American citizens located in foreign lands.
But, within this practical and Constitutional framework, the Congress must play a role in making these life and death decisions. So, legislation has been introduced describing the “War Powers” of the Congress.
None of the various “War Powers” bills would, in any way, prevent the President from taking prompt action in the defense of our national interests.
However, these bills would require the President-after committing U.S. forces to battle—to inform Congress of his reasons for taking such action.
If, in the judgment of the Congress, it is not in the best interest of the United States to continue the hostilities, the President would be required to disengage our forces in an orderly and prudent way.
Opinion differs on the time period within which the President must present his case to the Congress. One proposal would set the time limit at 30 days. Another 60 days. Still another sets varying periods depending upon whether the troops deployed are draftees or volunteers.
These are details which must be—and will be carefully studied and debated before a bill is submitted for a vote.
But, I believe that a consideration of "War Powers” legislation is appropriate and necessary now—while the lessons of Vietnam remain fresh in mind.
We must clearly delineate the division of warmaking powers between the Executive and the Congress. Only in this way will the collective judgment, envisioned by our founding fathers, once again control the awesome decisions of war and peace.
STATEMENT OF HON. ALBERT H. QUIE OF MINNESOTA
Mr. Chairman, all of us are extremely pleased that the Vietnam conflict has been brought to a close and sincerely hope that the ceasefire agreements will hold and that a stable political order will be developed in Southeast Asia.
This war has made it abundantly clear that the warmaking powers of the President must be clarified and that the role of the Congress must be expanded to deal with any future situation which may develop along this line.
The first issue concerning, initial commitment is, what authority does the President have, acting as Commander in Chief, to commit the Armed Forces to combat abroad.
Constitutional practice in the 18th and 19th centuries supported a Presidential role in the commitment of troops to hostilities abroad, but only in a minor way. Though there were a large number of exercises of Presidential authority, most were relatively minor actions for the protection of nationals, actions directed at pirates, or reprisals for alleged breach of international law.
As America's position of relative isolation began to change at the end of the 19th century, the Presidents began to assume an increasingly powerful role. Twentieth century instances of Presidential commitment of the Armed Forces to combat abroad include President McKinley's commitment of several thousand troops to the international army which rescued western nationals during the Boxer Rebellion, President Wilson's arming of American merchant men with instructions to fire on sight after Germany's resumption of unrestricted warfare in 1917, President Franklin Roosevelt's Atlantic war against the Axis prior to the U.S. entry into World War II, President Truman's commitment of a quarter of a million American men to the Korean war, President Eisenhower's landing of the marines in Lebanon and his involvement of the U.S. fleet in the straits of Taiwan, President Kennedy's use of American naval and air forces in the Cuban Missile Crisis, and President Johnson's commitment of marines to the Dominican Republic.
Therefore, history has demonstrated that there are situations in which military forces must be deployed in the absence of a declaration of war.
These cases rise in circumstances which require combat actions but which are in contemporary conditions—undesirable to enact a declaration of war.
Moreover, it has long been recognized that there are conditions in which there is not enough time, or room of movement for a congressional declaration of war before military hostilities must be undertaken.
Therefore, the heart of the problem concerns the power of the President to initiate and maintain hostilities by the use of Armed Forces in the absence of a declaration of war.