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The State Department's third precedent:

1806: Mexico. Captain Z. M. Pike, with a platoon of troops and on the orders of General James Wilkinson, invaded Spanish territory at the headwaters of the Rio Grande. Pike was imprisoned and later released.

If for many years the executive branch of our Government could say that the Korean war was not a war, I suppose one should not be surprised to see it now referring to the expedition of Zebulon M. Pike as an invasion. Pike, who thought he was a lieutenant at the time, staggered into Spanish territory, half-starved and half-frozen, while exploring the southwestern reaches of the Louisiana Territory. Pike's Spanish captors believed his purpose to be espionage. However, the exhausted little band of Americans had made impressive detours, finding Pike's Peak; and President Jefferson later vouched for the innocence of their orders. Among some writers the suspicion of espionage has been inspired largely by the devious nature of Pike's superior officer, General Wilkinson, who was an associate of Aaron Burr.

The fourth precedent concerns the years 1806-10 when "American gunboats operated from New Orleans against Spanish and French privateers." The quoted sentence was taken by the State Department from James Grafton Rogers' book. But Rogers gave as his source Dudley W. Knox's "A History of the U.S. Navy,and Knox said that the gunboats operated "against freebooters under the guise [italic added] of French, Spanish, and English privateers.” The ultimate source of this precedent has been the false colors employed by Jean Lafitte et al.

In 1810 President James Madison ordered the occupation of part of west Florida, which he claimed as belonging to the Louisiana Territory. American settlers had rebelled against Spanish rule, and so the occupying forces met no resistance. President Madison said that his action was authorized by Congress; various laws had been passed concerning the annexation and administration of the very roughly defined Louisiana Territory, including one that authorized the seizure of Mobile Bay in the present State of Alabama. In 1810, however, President Madison did not press the American claim so far east as Mobile. The State Department now calls west Florida “Spanish Territory” and says nothing about congressional support for the President.

In 1811 Congress authorized the occupation of eastern Florida under certain conditions, including the danger of seizure by a third power (meaning England). Part of eastern Florida, Amelia Island, was occupied temporarily beginning in 1812, but President Madison disavowed the Army's action. The State Department's new list mentions the congressional authorization and President Madison's disavowal.

During the War of 1812 American forces occupied temporarily one of the Marquesas Islands in the Southern Pacific. According to the State Department, the island was "claimed by Spain.” The island also was claimed by the occupying Americans, whose claim was better than the Spanish one since the Spanish explorer never had seen this particular island, Nukahiva. No solid claim to the Marquesas was established until the French took possession in 1842.

In 1813 Congress again authorized the seizure of Mobile Bay, and a bloodless occupation was effected. The authorization is noted by the official list.

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In 1815, as mentioned by the State Department, Congress authorized the renewed conflict with Mediterranean raiders: the War with Barbary Pirates.

From 1814 to 1825 American forces fought pirates and Indians in the Caribbean and the southeastern portion of the continent. Sometimes the hostilities spilled into Spanish territory, chiefly Florida and Cuba. The problem of Florida was solved with the territory's purchase in 1821. As late as 1825 pirates were being captured on offshore Cuban islands. The State Department says nothing about whether these activities were authorized by Congress. A proexecutive study prepared by Senator Barry M. Goldwater who most recently has claimed 197 armed actions, admits that nearly all were "arguably” authorized by legislation. Omitted from Goldwater's list was an 1825 landing on Puerto Rico. In that case, as the State Department neglected to mention, the American commander later faced a courtmartial and resigned from the Navy.

The above history takes us up to the administration of President Andrew Jackson, who is not described as a Founding Father. It is clear, I think, that the early Presidents stayed within the bounds of the Constitution as it originally was understood. Their actions do not support the view that Congress, unless it wishes to "declare” a war, has no say in whether hostilities should be initiated with a foreign state.

As for the remaining portion of the 19th century, the State Department offers a proliferation of incidents that I hardly have bothered to investigate. Many involve landings in Latin America, or shows of force there, during times of civil disturbance. A truly major event listed is Commodore Matthew Perry's opening of relations with Japan. This was an “armed action” in that it involved the use of armed ships and the apparent threat of force, but it was not an “armed action” in the sense that fighting occurred. Congress declared the Mexican War of 1846-48, and the Spanish-American War of 1898. In the case of the Mexican War, the conflict was made almost inevitable by President James K. Polk's dispatch of troops into disputed territory. By placing a military force in danger of attack, President Polk set the pattern for some future involvements, including the present one in Indochina. However, President Polk did find it necessary to seek a declaration of war.

Foreshadowing the trend of the 20th century, a dramatic daparture from legality occurred in 1900 when during the Boxer Rebellion in China, President William McKinley ordered 5,000 American troops to help an international force rescue the legations under siege at Peking. Congress was not in session at the time, and it never did approve or disapprove McKinley's action, which not only was politically popular but took place during an election year. Successive Presidents took more and more liberties with the use of armed force—which is why the State Department began issuing its apologia in 1912. The eloquent Woodrow Wilson, a former professor of political science, twice invaded Mexico without a valid congressional authorization; and he dominated the Caribbean through the Navy Department. In 1917 President Wilson returned to constitutionalism by seeking declarations of war against the Central Powers. In 1941 President Roosevelt requested declarations of war against the Axis Powers; by that time events had gone so far that Congress had no choice. Congress slowness to deal with World War II resulted in a sense of inferiority that Senator Fulbright sees as the cause of its present disinclination to challenge the Executive's use of power.

By 1950 a considerable erosion of congressional power already had occurred; yet, from the constitutional standpoint, it still was an extraordinary event when President Truman undertook a major war without any authorization from the legislative branch of the Government. Truman acted during a time of emergency, and his decision was applauded by lawmakers and public alike. The legal aspect he disposed of by calling the enemy "bandits” and saying, “We are not at war." However, the need for quick action does not fully explain the President's motives. At his leisure Truman could have obtained authorizing legislation from Congress. But he chose not to. Why? An authority on that was the late Dean Acheson, Truman's Secretary of State. In his book of political memoirs, “Present at the Creation," Acheson said, "There has never, I believe, been any serious doubt-in the sense of nonpolitically inspired doubt-of the President's constitutional authority to do what he did.” Acheson admitted that "congressional approval would have done no harm.” But the process of obtaining it, he thought, might have hurt the morale of the men already fighting in Korea. There was yet another consideration. Acheson said of Truman:

The President agreed, moved also, I think, by another passionately held conviction. His great office was to him a sacred and temporary trust, which he was determined to pass on unimpaired by the slightest loss of power or prestige. This attitude would incline him strongly against any attempt to divert criticism from himself by action that might establish a precedent in derogation of presidential power to send our forces into battle. The memorandum that we prepared listed eighty-seven instances in the past century in which his predecessors had done this. And thus yet another decision was made.

The office of the President had become excessively powerful, and even "sacred,” through a historical fiction, though legal legerdemain, and through an era of crisis. It is important to bear in mind that this development is relatively recent. It is not what the Founding Fathers "so wisely conceived." It is what they wished to prevent.

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MEMORANDUM TO COMMITTEE ON FOREIGN AFFAIRS, SUBCOMMITTEE

ON NATIONAL SECURITY POLICY, HOUSE OF REPRESENTATIVES, IN OPPOSITION TO S. 440, WAR POWERS ACT

(By Charles A. Weil)

INTRODUCTION

I deeply appreciate the privilege of being heard again by this committee against a suicidal, self-denying ordinance that could well trigger defection of many, if not all, important allies, actual and potential; on which our security and economy depend; driving them into the waiting arms of avowed adversaries, their Finlandization by their regional super powers, and practically assure our conquest by Russia and/or China.

There are three underlying propositions:

1. Our grand policy has been, is, and only can be, to prevent an imbalance of military, repeat military, power, conventional as well as nuclear. We have to cease holding power balance as dirty words.

2. That policy depends on allies, actual or prospective; we can never be strong enough to resist or dominate the whole world's military, repeat military, power.

3. That policy rests on capabilities and will to deliver timely credible diplomatic and material aid to such allies and, if need be, of landing transoceanic expeditionary forces because forced landings can no longer be depended on, as General Bradley testified almost 20 years ago.

Underlying is the assumption that the global balance is between Mahan's sea power and land power, Mackinder's rimland and heartland, Dehio's insular and continental worlds.

My previous testimony to the committee was addressed to legislation to cripple American military efforts to deal with only one potential enemy, strategy in only one war; to deny an important beachhead in only one war, the beachhead to Southeast Asia. I then showed efforts by two potential enemies to deny an American beachhead to the Eurasian mainland.

Since then what may have been only a sham conflict between Russia and China has shown signs of being undissimulated. Since then there have been mobilizations on the Sino-Soviet frontier. Since then Mr. Nixon has visited Peking and Moscow. Since then Sihanoukville remains no longer the point of entry for Russian sophisticated weapons. Since then there has been the Indo-Pak war and Indo-Soviet pact encircling China. Since then Soviet strategy has shown its hands at gaining control of all East-West maritime choke points—Gibraltar, Suez, Panama, Malacca. Since then Soviet strategy has shown it is total; diplomatic, economic, financial, subversive, as well as military and indirect.

The only country besides the United States in central position, with access to both the Atlantic and Pacific Oceans, with capabilities to interdict or interrupt all transoceanic lines of the United States, commercial as well as military, is the Soviet Union.

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S. 440 would disarm us, at first diplomatically and then militarily.

POINT I

AMERICAN PEACE AND SECURITY, ITS ECONOMY AND STANDARD OF

LIVING REST ON TWO INTERLOCKING GLOBAL POWER BALANCES, ONE CONVENTIONAL, THE OTHER NUCLEAR

American peace and security has always depended on a global power balance in which no single power controls militarily all Europe or all Asia, a fortiori both.

Six Presidents have stated it and/or acted on the premise.
Two world wars were fought lest such balance be upset.

Our GNP and standard of living also depend on such balance for use of the seas that can be denied, if ever such single power dominated Europe and/or Asia; that is, the "World Island" Mackinder wrote about 60 years ago.

Such a power or bloc, with no large armies to support against major regional continental enemies, would have the resources and manpower to outbuild us at sea, destroy our Navy, and deny the foreign raw materials and foodstuffs we require increasingly, and the foreign markets to pay therefore, as every history book relates Napoleon sought to do with his "continental system" against England.

The hardship to us would be multiplied by extension of such system to all continents and the seven seas with all ports closed to our shipping, exports and imports, necessary to full employment and high standard of living, as well as security.

Secretary Peterson recently stated our need of imported raw materials and foodstuffs was due to increase greatly, and we are now facing an energy crisis because of the depletion of our oil and gas reserves and the need for increasingly greater imports of petroleum that could be denied to us if such balance were to be upset, particularly in the Middle East by diplomatic, or military actions.

Every American, even the most underprivileged, therefore has a personal vital interest, not at all adequately understood, in the equilibrium in which we now are the only power with capability, geographical and industrial, to be the conventional "world balancer" Theodore Roosevelt predicted in 1910 we would have to be, and Franklin Roosevelt led us to continue to be in 1941.

Remains the nuclear aspect. But since resort to nuclear war would result in all concerned being losers, the only policy to avoid the nuclear spasm is to maintain second strike nuclear capabilities, at least sufficient to insure that the cost to any potential enemy would be such

leter resort thereto by them and, by maintaining, with allies, an equilibrium of conventional, or general purposes, capabilities, tó make certain of overall global balance, failing which we might have to resort to nuclear war to preserve our independence, territorial integrity, GNP, and standard of living:

According to its sponsor, this bill is predicated on this country being the dominant power in the world. This it has never been. It may still have the largest surface navy. But since World War II it has never had more than 20 operational ground force divisions and

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