POINT IV

S. 440 IS UNCONSTITUTIONAL BECAUSE OF FACTS AND CIRCUMSTANCES THAT COULD NOT HAVE BEEN FORESEEN BY ITS FRAMERS, OR EVEN ITS RESPONSIBLE INTERPRETERS, THE SUPREME COURT, UNTIL

COMPARATIVELY RECENTLY

While others, legalistically better qualified than myself have expressed conflicting opinions on its constitutionality, I submit the State Department views relative S. 2956 are applicable, so I will not impose on this committee's time to indulge in the tweedle dum and tweedle dee of self-appointed, but irresponsible, pedants relative a law the President would, and should, veto for reasons of wisdom set forth in point III, a veto unlikely to be overridden but that, if overridden, would probably be held unconstitutional by those really responsible, the Supreme Court, and which if not so held might well become moot by the abandonment of indispensible allies, with presently parallel vital interests, and our consequential total defeat by avowed adversaries who watch these proceedings with bated_breath hoping for a congressional measure surpassing in asininity the Ludlow and Bricker amendment straitjackets.

But there are a few factual considerations I ask leave to submit on the principle that uncontroverted and uncontrovertible new facts make new law.

Let me first express sympathy with the provisions of section 4 requiring Presidential reports to Congress. I have always held in previous testimony to this, and other, congressional committees the desirability of the President "leveling" with Congress and the people provided it not involve a case of "telegraphing punches" or "Macy's telling Gimbels."

I cannot do better than paraphrase Mahan:

In a democracy, the clear comprehension by the people of the vital national interests and the national purpose, and the clear enunication by its government of the policy therefrom resultant, coupled with the evident and adequate means to implement such policy; is the surest safeguard against such nation drifting into wars that do not concern it

The grand policy of power balance has been enunciated frequently, not only by the present incumbent of the White House, but by many of his predecessors, by acts and in explicit terms. We only entered the two world wars because Germany was winning and would have upset the balance to our jeopardy. It was only to preserve the Asiatic balance that Franklin Roosevelt took measures that drove the Japanese to the Pearl Harbor attack. It was because of their influence on the Asiatic balance we fought in Korea and Vietnam.

Unfortunately the naked assertions of Presidents Johnson and Nixon were not understood by too many Members of Congress or the people-why and how Korea or Vietnam were important to our peace and security.

Senator Javits makes much of the contention the Founding Fathers meant to establish

*** different relationship of the Parliament and the King

relative the power of English kings to involve their countries in war. It overlooks the king and his advisers realized Senator Fulbright's point (infra) that members of Parliament represented parochial

interests and were not elected for their qualifications to assess matters of power politics vital to British security, and parliaments realized it also.

Against this is the crucial new fact; the Constitution was drafted and judicially construed in the 20th century largely when American independence and security were founded on oceans protected by a power balance and the navy of its balancer.

Since World War I, many concur, as I do, with Theodore Roosevelt, as set forth in point I, that the United States has inherited the British burden; without the benefit of an overseas empire; of being the global balancer. In the alternative (point II) it would only become a satellite or colony of Russia or China or history is only an empty chronicle of inconsequential dates and happenings.

The chairman of the Foreign Relations Committee put it years ago, before Vietnam and prior to the constitutional crisis engendered by the President being Republican while the Congress is Democratic:

We must give the executive a measure of power in the conduct of our foreign affairs that we hitherto jealously withheld-certain to become more rather than less compelling in the decades ahead. The preeminent responsibility of the President for the formulation and conduct of American foreign policy is clear and unalterable. He has all powers which the Constitution does not vest elsewhere in clear terms:

rather than in

*** in the hands of a decentralized, independent minded and largely parochially minded body of legislators. [Italics supplied.]

Ι

The Constitution is a living document. Its construction has been extended to a point that has been severly criticized. So if it has been extended, and I agree, properly for domestic, social, and economic reasons, I submit that when it comes to saving our necks, the Court can, and will, stretch a point. It predicates judgment in which what is needed is not pedantry and legalism, but sound judgment based on full information on all national and relevant consideration. Such judgment in such matters is nothing if not military, geostrateic, especially in the age of lightning wars and nuclear strikes.

Since combat is only continuation of policy by other means, it follows as a matter of logic and plain common sense, S. 440 puts cart before horse.

If Congress has any function relative war or war powers, it should be as to policy; grand policy; the takeoff, not the crash landing; not the ad hoc manifestations and measures of policy execution and implementation, which may involve combat, if other means are inadequate.

How can Congress perform such deliberative function in the formulation of policy; that is, ascertain if such policy is to prevent a power imbalance, unless it debates it objectively; unless it is educated to debate it; unless the people is likewise eduated to understand it or to abide by the judgment of its government; unless the education, paid for by tax moneys, teaches the influence on American history and security of power balance; unless the media publishes information and opinion, instead of suppressing or disparaging it?

The point made by Jefferson:

To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, abruptly sacrificing the ends to the means.

I particularly share Senator Cooper's difficulty, pragmatically as well as legally, with any arbitrary, perhaps capricious, 30-day period and apprehend lest Justice Jackson's "zone of twilight" between distinct areas of Presidential and congressional war powers be precursor to nightfall's darkness on the country itself. Rather sure than sorry.

Nor is it necessary to depart very far from previous Court rulings concerning the plenary powers of the President in foreign relations and the Court's denial of jurisdiction over political questions as between the executive and legislature on which this committee need no briefing from me.

However, much as I would eschew carrying Mr. Fulbright's above quoted remarks too far relative the parochialism of the Congress, it must be pointed out that Members of Congress are not elected on the basis of qualifications, even education, to judge comparative capabilities or threats thereto, effective with the balance of power essential to our security as more fully set forth in point III.

Entirely apart from the education of their constituencies and parochial interest in the premises and the fact that many judgments of Presidents have to be based on secret information, technologies, and protocols that cannot be divulged even to Members of Congress lest they embarrass or provoke foreign nations, that the less discrete or overzealous Members of the Congress make public, and hence to enemies actual or potential.

Finally the terms of the bill are sufficiently indefinite to bedevil matters in a crisis, terms like "imminent," "clearly indicated by the circumstances," until construed by the Supreme Court which could even hold them so indefinite as to render the entire statute void for uncertainty while the word's "direct" and "imminent" are inconsistent with the words "to forestall," that can only add to the bedevilment and delay in a crisis.

In fine S. 440 presents an issue of wisdom, of security, not of constitutional theory; a condition of survival, the supreme law of nature.

POINT V

MANY MEMBERS OF THE SENATE AND HOUSE APPEAR TO HAVE

MISREAD PUBLIC OPINION ON VIETNAM

Congress should not misread the 1972 election returns to signify disapproval of the President's conduct of foreign relations in general or with Southeast Asia in particular, or to signify approval of the misconduct of those Members of Congress as in relation thereto who have upset the national applecart with misleading aid and encouragement to the enemy that has prolonged the war in Southeast Asia.

The reelection of a Democratic Congress has not been because, but in spite of the misconduct of so many on the Southeast Asia issue and because the electorate has had confidence in the President's continuing capability to stymie such misconduct, without affecting the conduct of Congress on parochial domestic matters that have been handled to the satisfaction of the separate constituencies.

Accurate reading of the opinion polls shows the people overwhelmingly support measures to defend the national security in general, and in particular relation to its stake in South Vietnam that has been suppressed in Congress and the media.

This is confirmed by the "Gallup Opinion Index" of December 1967 showing public approval of the policy to deny Vietnam to potential enemies despite that the public did not fully understand the particulars how and why Vietnam was vital to our peace, security, and prosperity as enunciated by Presidents Eisenhower, Kennedy, Johnson, and Nixon and proved by the actions of Presidents Franklin Roosevelt and Truman.

I personally asked the Gallup and Harris polls to make a survey of how many people understood the national security aspects of the Vietnam controversy so our leaders could, if necessary and possible, make such particulars plain.

Even this was suppressed, but for which it would have been incumbent on those leaders, political and intellectual, to explain it in terms comprehensible to anyone with an IQ of 100 without divulging any properly classified information or material. This has been despite suppression by the academic-media complex of the reasons for our involvement in Indochina and which would have brought out how Indochina fits into the big picture of our overall policy of power balance, the reasons therefor, and ways and means to implement it as set forth in point III of this memorandum and point III of the memorandum to the Foreign Affairs Committee in July 1970 I ask to have made part of it, and appendix to, the present brief.

POINT VI

THE CONGRESS IS, UNFORTUNATELY, NOT QUALIFIED TO ASSESS THE CIRCUMSTANCES AND SECRET INFORMATION THAT CALL FOR PREVENTIVE ACTION, BY THEIR EDUCATION, NOR ARE THEY ELECTED FOR THEIR QUALIFICATIONS THEREFOR, AND ARE EVEN PREVENTED FROM ACQUIRING SAME BY THE ACADEMIC MEDIA COMPLEX WHICH SUPPRESSES, AS IT DID RELATIVE INDOCHINA, FACTS AND OPINIONS THAT WERE PRIMA FACIE RELEVANT AND MATERIAL TO THE NATIONAL SECURITY ASPECTS OF THE CONTROVERSY

Nor are members elected for their grasp of grand strategy, including geostrategy, as practiced by adversary nations, avowed or potential, more particularly Russia and/or China, which respected modern analysts and theorists like Liddell Hart and Beaufre describe as "indirect" involving taking for themselves, or denying to this country positions and capabilities that cumulatively would leave no alternative between surrender and nuclear spasm.

Neither are their constituencies, including the intellectual elite, educated to appreciate the enemy's insidious and arcane indirect strategy and the application to policy of the good old proverb that a stitch in time saves nine.

Nor are either electors or elected qualified to evaluate geostrategic positions and comparative capabilities, including those threatened, effective with power balance, many of whose factors are, and must remain secret.

POINT VII

WE MUST DEFEAT S. 440 AND ANY OTHER FETTERING SELF-DENYING ORDINANCE AND EDUCATE OUR PEOPLE ON OUR BALANCE OF POWER POLICY AND STRATEGY, ITS RELEVANCE TO OUR HISTORY, OUR FUTURE SECURITY AND ECONOMY AND STANDARD OF LIVING

Instead of "black studies" as condition to funding of educational institutions let us make such funding conditional on the proper interpretation of American history in elementary schools, high schools, and institutions of higher learning.

Respectfully submitted,

CHARLES A. WEIL.