STATEMENT OF HON. ROBERT 0. TIERNAN OF RHODE ISLAND

Mr. Chairman, I appreciate this opportunity to testify before your subcommittee on behalf of war powers legislation, an issue which I feel is as important now as it was in February of 1971, when I first introduced the "War Powers Act."

My bill, H.R. 2740, states that in the absence of a declaration of war, the President, as Commander in Chief of the Armed Forces, may act (1) to repel a sudden attack against the United States, its territories, and possessions; (2) to repel an attack against our Armed Forces on the high seas or lawfully stationed on foreign territory; (3) as may be required, to protect the lives and property of U.S. nationals abroad; and (4) to comply with a national commitment resulting exclusively from affirmative action taken by the executive and legislative branches of the U.S. Government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment, where immediate military hostilities by our Armed Forces are required.

Here we come to the important part of my bill. The President may not sustain these military hostilities beyond 30 days without explicit approval by the Congress. In addition, the Congress may terminate these hostilities before the 30-day period is over.

Mr. Chairman, the need for this type of legislation is unquestionable. Today we face a constitutional crisis unparalleled in our history. The past 20 years have seen a growing willingness by our Presidents to disregard the Congress in involving American Armed Forces in "undeclared" conflicts. Thus, the President has been the one to decide when our troops will be used, where they will be sent and how large the conflict will be. The Congress has been disregarded completely. We have been delegated to the role of putting up or shutting up. Surely if we are to "preserve, protect, and defend the Constitution of the United States" then we must act and we must act now.

The intent of our Founding Fathers is clear. Article I, section 8 of the Constitution specifically gives to the Congress the power to declare war and make rules for the Government and the regulation of our Armed Forces. The writings of Jefferson, Madison, Monroe, and others, all make it perfectly clear that no warmaking power is given to the President. Lincoln reiterated this when he said:

"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure".

So why now do our Presidents commit us to war without congressional approval? Indeed, what has happened to the Constitution? I would like to briefly state what I feel has happened and how we can return to true democratic rule as envisioned by our forefathers.

In the entire history of our Nation, Congress has declared war five times. Four times we authorized direct military operations. More than 125 military operations were carried on with no direct

authorization by Congress. Most of these, obviously, were of a very limited nature. Recently, however, this has not been the case. In the past decade alone, Presidents have intervened five times in foreign nations with American Armed Forces and without prior congressional consent: The Bay of Pigs, the invasion of the Dominican Republic, and the attacks on North Vietnam, Cambodia and Laos. Can any of us say that these constituted genuine emergencies? Did any justify bypassing Congress because they were an immediate threat to the United States?

This use of excessive war powers by the President has risen partly from the cold war and the nuclear age; partly by congressional acquiescence, inertia and indifference; partly by Presidential assumption, and partly by the positive delegation of Congress. Four examples of Congress readily giving up a great deal of its constitutional jurisdiction come to mind: the Formosa Resolution of 1955, the Middle East Resolution of 1955, the Middle East Resolution of 1957, the Cuban Resolution of 1962, and the Gulf of Tonkin Resolution of 1964.

As for the emergence of the nuclear age, it is for this very reason that we must not leave the war making powers with one man, for the results are too devastating. No one man should be allowed to decide whether or not an entire nation will be destroyed, which may in return destroy us. On the other hand, with the threat of nuclear holocaust hanging over our heads, it is likely that in the future we will see a continuation or possibly an acceleration of guerrilla wars. One of our greatest challenges is never again to allow a single man to commit our lives, our resources and our money to future Vietnams in Asia, Africa or Latin America.

Certainly the changed conditions in this world mean that Presidential power must be enlarged to meet altered circumstances. But only to a point. Once beyond that point, the emergence of a totalitarian system is made almost inevitable. In the past few years, we have found ourselves closer to this point than many of us would like to admit. For this reason more than any other, we must enact into the law the War Powers Act this year.

Now let us look for a moment at Congress allowing and the President assuming these excessive powers. Congress must bear a great Ideal of the burden. Where were our voices when President Truman committed Armed Forces to Korea in 1950 without congressional authorization? Where were our voices in 1969 when President Nixon stated: "And, although reasonable men may differ as to the circumstances in which he should do so, the President has the constitutional power to send U.S. military forces abroad without specific congressional approval."

We in Congress do not seek to reclaim our right to declare war because we are any wiser than the President. We do so first and foremost because the future of our democratic form of government, as envisioned by our Founding Fathers and established by the Constitution, is at stake. Secondly, it is my belief that Congress would use this authority more sparingly than the President, as one man, would. For war is the most crucial issue anyone can deal with, and it should not and cannot be easy to initiate.

Open debate by the Congress may bring up risks otherwise overlooked or alternative courses never considered. It substitutes the experience of many voices for that of one at a time when no objection is too small. And it may well serve to secure the consent of our citizenry, certainly a vital factor as the Vietnam war has so painfully proved. The President reaches his decision to go to war through private processes, inaccessible to the individual citizen, Congress provides that accessibility. Without the moral sanction of the American people, the consequences of war are no less destructive here in our own country than where the bombs are falling. Only by returning to the dictates of the Constitution can we guarantee that we will never again go to war without the support of our citizens.

Mr. Chairman, those who oppose the War Powers Act do so basically for three reasons: (1) historical precedents of past Presidents acting without congressional approval; (2) only the President has all the facts; and (3) the President has at his command all the experts in the executive branch.

If I may, I would like to briefly refute each of these arguments. First of all, precedents of past Presidents have never been binding. They are meant to serve as guides and that is all. And certainly we can ask here, because one President usurps the warmaking power from Congress, is it automatically constitutional and right for others to do so? With each usurpation, the intent of our Founding Fathers to maintain a balance of power grows weaker and weaker. Let me quote our first President:

If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

The other two arguments against the War Powers Act stem not from what is customary or what must be, but from almost paranoic public officials. The whole issue of the Pentagon Papers is raised, an issue which is too complex to get into here. But questions can be raised. Must these facts all be kept secret? Is our national security truly at stake? And why should President Nixon be allowed to dictate who can and who cannot testify before Congress? Certainly the President has the right to private counsel. But when that counsel becomes the policy of this Nation, Congress has the need and the right to know. If the President is allowed to maintain complete control of the warmaking machinery we are in serious danger of him obtaining complete control in other essential areas of our national life. Tocqueville put it this way" "War breeds dictatorship". Certainly if our Founding Fathers made one thing clear, it is that they truly feared an unchecked appetite for power.

The blatant truth is that we have strayed dangerously far from the political system our forefathers envisioned. Madison said:

There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates.

To this we can add, there can be no liberty if either the legislative or the executive branch acts to the exclusion of the other.

Mr. Chairman, there is no more important legislation at this time in our history than the War Powers Act. For what we are dealing with is the heart of the Constitution and the heart of our democracy, I urge your committee to act expeditiously.

STATEMENT OF HON. AL ULLMAN OF OREGON

Mr. Chairman, I appreciate the opportunity to submit testimony on my bill, H.R. 1454, dealing with war powers. The hearings on this issue are most timely in view of the growing controversy on Federal balance between Congress and the President. I firmly believe that Congress must enact meaningful and effective legislation in this area. My bill, H.R. 1454, is identical to the bill passed by the Senate in April 1972. The general purpose of the bill is to make rules governing the use of U.S. Armed Forces in hostilities in the absence of a declaration of war by Congress. The fact that the Nation has been bogged down for so many years in the futile quagmire of Vietnam highlights the need for this legislation. This bill attempts to reflect the intent of the framers of the Constitution by insuring that the collective judgment of both the Congress and the President applies to the commitment of Armed Forces in hostilities.

The authority for this legislation derives from article I, section 8 of the U.S. Constitution-"Congress shall have the power to make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof." The bill is not intended to encroach upon the recognized powers of the President as Commander in Chief and Chief Executive to conduct hostilities authorized by Congress, to respond to attacks or imminent threat of attacks, and, under proper circumstances, to rescue endangered U.S. citizens located in foreign countries.

Central to the bill is a requirement that the President seek congressional approval to maintain our Armed Forces in hostile action after 30 days. If Congress does not approve, the President_must withdraw our forces. In my judgment, such legislation is needed to fill a very large void that permits dangerous executive latitude.

This legislation does not impair the President's flexibility to meet emergency situations, but will prevent the Nation from being sucked in to a long term, undeclared war like Vietnam. This is a reassertion of the responsibility of Congress. We simply must not allow a President to wage war, declared or undeclared, without asserting the will of the people through the Congress.

Thank you for the opportunity to place this statement before you today.

STATEMENT OF HON. CHARLES H. WILSON OF CALIFORNIA

I would like to begin by thanking this distinguished subcommittee for holding these hearings on this very important legislation to define the authority of the President to intervene or to make war abroad without the consent of Congress.

As the Representative of the people of the 31st District in California, I have been aware, through the mail received by my office and through the many talks I have had with constituents that overwhelmingly our citizens feel that Congress has proved ineffective in dealing in a positive way with the war in Vietnam. Additionally, as a member of the House Armed Services Committee, I have wrestled at great length with the question of how best to assure no more Vietnams. Anytime, anywhere.

After much consideration and study, earlier this year I introduced H.R. 3333, the War Powers Act, to require majority approval by Congress before the United States commits military or civilian assistance to another country. Of course, my legislation would not infringe on those emergency powers of the President which are necessary to secure an adequate defense of this great country. I quote from my bill:

The central core of the War Powers Act is contained in sections 3 and 5 of the bill. Section 3 consists of four clauses which define the conditions of circumstances under which, in the absence of a congressional declaration of war, the Armed Forces of the United States "may be introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances."

The first three categories are codifications of the emergency powers of the President, as intended by the Founding Fathers and as confirmed by subsequent historical practice and judicial precedent. Thus, subsections (1), (2), and (3) of section 3 delineate by statute the implied power of the President in his concurrent role as Commander in Chief.

Subsection (4) of section 3 is perhaps the most significant; while subsections (1), (2), and (3) codify emergency powers which are inherent in the independent constitutional authority of the President as Commander in Chief, subsection (4) deals with the delegation of the Congress of additional authorities which would accrue to the President as a result of statutory action by the Congress, and which he does not, or would not, possess in the absence of such statutory action. Thus, subsection (4) regulates and defines the undertaking of a "national commitment. Section 5 provides that actions taken under the provisions of section 3 "shall not be sustained beyond 30 days from the date of the introduction of such Armed Forces in hostilities or in any such situation unless-'the continued use of such Armed Forces in hostilities or in such situation has been authorized in specific legislation enacted for that purpose by the Congress and pursuant to the provisions thereof.'"

Section 5 resolves the modern dilemma of reconciling the need of speedy and emergency action by the President in this age of instantaneous communications and of intercontinental ballistic missiles with the urgent necessity for Congress to exercise its constitutional mandate and duty with respect to the great questions of war and peace.

As one can see from the above, the conditions in which, in the absence of a congressional declaration of war, our Armed Forces can be introduced into hostilities or into situations where hostilities seem