Our treaties are also to be implemented only in accordance with the constitutional processes of the signatory nations. The constitutional processes of the United States specify that Congress-not the President-has the authority to declare war.

Prior war powers proposals were unclear as to whether appropriations measures could be interpreted as legitimate congressional authorization for the continuance of hostilities. Senate Joint Resolution 59 took the position that appropriations measures could not imply such authorization. This contention has become increasingly obvious as some Members of Congress attempt to end our involvement in Vietnam.

We now need a two-thirds majority to override a presidential veto to cut off funds for military activity in Indochina. This factor clearly gives the Commander in Chief power that was not intended by the Founding Fathers. The President theoretically could wage war with impunity while confidently challenging each House to attempt to muster a two-thirds of its membership in order to stop him. Such a situation is not only extremely dangerous; it in effect turns our carefully devised system of checks and balances on its head.

Senate Joint Resolution 59 also went further in defining the areas in which affirmative congressional action would be necessary. It defined "hostilities" as including the deployment of U.S. forces outside the United States under circumstances where an imminent involvement in combat activities is a reasonable possibility. It also included the assignment of U.S. soldiers to accompany, command, coordinate, or participate in the movement of regular or irregular armed forces of any foreign country when such forces are engaged in any form of combat activity.

There was well-founded precedent for such limitations. In the absence of limiting congressional legislation, presidential power to move Armed Forces of the United States in international waters and to station them on territory of our allies has generally been accepted, except where such action could reasonably be expected to lead to hostilities. Only once has this principle flagrantly been abused. In 1846, after the annexation of Texas, President James Polk ordered American troops to enter the disputed territory between the Nueces and Rio Grande Rivers. Hostilities immediately broke out and Congress thereafter declared war against Mexico. However, some 18 months later, the House of Representatives concluded that the President had unconstitutionally begun the war and, in effect, Polk was justly censured.

Presidential power to move the Armed Forces of the United States is not, and should not, be viewed as extending to place American men in situations where combat is almost inevitable.

And, as Vietnam has illustrated, limited deployments of U.S. military advisers to countries where combat activities are in progress or could be expected to commence shortly has become increasingly more dangerous in an era when "brushfire" wars and guerrilla warfare are becoming even more common.

Senate Joint Resolution 59 added new ingredients to the by now raging debate over the war powers of Congress and the President. Never before had the Congress of the United States undertaken such a detailed examination of its own constitutional prerogatives.

I am proud to say that the concepts encompassed in my resolution-first considered to be a too-strict, too-energetic approach to Congress' war powerswere adopted by the Foreign Relations Committee and were included with the excellent provisions of Senator Javits' bill to make up the bill passed by the Senate on April 13, 1972.

No historical analysis of war powers legislation would be complete without a discussion of the outstanding contribution made by the distinguished chairman of the Armed Services Committee, Senator John Stennis. Senator Stennis has not only submitted his own excellent resolution to define the war powers of Congress and the President, he has participated for more than 20 years in the effort to assure that the prerogatives of Congress are protected.

An example of Senator Stennis' great concern that Congress not abrogate its responsibilities in the warmaking area was his careful questioning in 1954 of Senator Wiley of the Foreign Relations Committee, who managed the Mutual Defense Treaty between the United States and Korea. During that colloquy, Senator Stennis made clear that the phrase "constitutional processes" should be interpreted to mean that Congress alone would have to make the decision to implement the warmaking provisions of the treaty.

Senator Stennis has been consistent in the view that he has held concerning the Congress' war powers and in his strict constructionist view of the Con

stitution. It is difficult today for advocates of a strong executive who supported Presidents Franklin D. Roosevelt, Harry S. Truman, and John F. Kennedy to concede that, in the area of war powers, strict constructionism always was the proper approach. We now realize after going through the trauma of our experience in Vietnam, however, that men like Senator John Stennis were correct in their untiring efforts to assure that Congress uphold its constitutional responsibilities.

Presidents have alleged a long list of powers to justify the commitment of American Forces in Indochina. The Gulf of Tonkin Resolution, the SEATO Treaty, congressional appropriations, and the powers of the Commander in Chief have all been cited at various times as legal authority for our presence in Vietnam. President Nixon has, however, in statements attributed to him and to his administration, relied almost exclusively on the powers of the Commander in Chief. Such a reliance, of course, does not in any way necessitate the involvement of the Congress of the United States. If this claim of power is allowed to stand without challenge, Congress will continue to lose its powers by attrition and our Constitution will undergo a major restructuring.

Alexander Hamilton, our most eloquent defender of increased executive power at the Constitutional Convention, gave his interpretation of the powers of the Commander in Chief in Federalist Paper No. 69:

66 .. would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies-all of which by the Constitution under consideration, would appertain to the legislature."

This body must implement the provisions of the Constitution as described by Alexander Hamilton and James Madison in their Federalist Papers and as interpreted by a number of benchmark Supreme Court decisions. To do this we will have to use the authority assigned to Congress to make all laws necessary and proper to carry out the provisions of the Constitution. The War Powers Bill we submit to this body today is intended to do just that.

It is unfortunate that we in Congress, and Americans in general, have a tendency to overlook serious situations until they erupt into crisis. There should be little doubt that the gradual erosion of congressional war powers has grown to crisis proportions. If we fail to act now after the horrors of Vietnam have so clearly exposed the danger of individual war-making, we may never again see the questions of war and peace being decided by the sobering and deliberative processes inherent in the concept of collective judgment.

I ask this body to consider this legislation in an expeditious but thorough manner so that we can act quickly to restore balance within our system.

Mr. ZABLOCKI. Thank you for your excellent statement in support of S. 440.

I want to express my deep appreciation for your kind comments and I also want the record to show the chairman was assisted in no small measure by the gentlemen from Florida, Mr. Fascell as well as Mr. Findley, Mr. Hays, Mr. Bingham and others of the subcommittee. In discussing in your statement the 30-day provision of S. 440, a provision over which we have serious reservations, you stress that Congress alone must decide whether we will enter an offensive war, and that we, in Congress, must not subject our "exclusive responsibility" to a presidential veto.

OTHER ENFORCEMENT METHODS?

Yet, on page 13, in the middle of the page, you concede that, and I quote, "There may be other enforcement methods that could be used. For example, some have suggested a qualitative approach."

While you flirt with the idea of a qualitative approach, you really do not embrace it. Is that a fair analysis of your situation?

Senator EAGLETON. That is right. I prefer the 30-day provision because it is a precise mechanism. I concede that perhaps a qualitative approach would have some merit, but I am not deserting the 30

day provision. The qualitative approach would require the same intensive examination of the qualities that comprise offensive versus defensive war that we went through to delineate the emergency

powers.

Mr. ZABLOCKI. You do find some merit in the qualitative approach? Senator EAGLETON. I don't dismiss it but until I could examine a specific construction my preference is for the 30-day approach.

Mr. ZABLOCKI. In drafting S. 440, I presume that approach was thoroughly explored?

Senator EAGLETON. Explored. I query the word, "thoroughly," but it was explored.

Mr. ZABLOCKI. I use "thoroughly" advisedly because I know the Senators are thorough.

You say on page 3 of your prepared statement, and I quote, "The constitutional crisis we experience today has not come about because the Gulf of Tonkin Resolution was passed, but rather because it was repealed."

Would you please elaborate on that?

TONKIN GULF RESOLUTION GAVE BROAD AUTHORITY

Senator EAGLETON. Gulf of Tonkin was enacted as of August of 1964 and stayed on the books until January 12, 1971. I believe that that resolution was legal authorization for our activity in Southeast Asia. I think it was so broad in its mandate and so broad in its authorization that President Johnson and later President Nixon were delegated full power to carry on the war in Southeast Asia.

We gave too much away by that resolution. It was too loosely defined. I say that, of course, with the benefit of hindsight. Once it was repealed, there was in my opinion, no other legal authorization for the continuance of the war. I simply cannot buy the Commander in Chief authority as being so all encompassing as to authorize the continuance of the war in Southeast Asia after the repeal of the Tonkin Gulf resolution.

In terms of disengagement, I think disengagement has an element of promptness, and I don't think we were promptly disengaging from Southeast Asia from January 21, 1971 until March 1973.

We use the words "prompt disengagement" in our bill, and there was a debate on the floor of the Senate in connection with the adoption of that language. We said it had an element of promptness to it; that it implied that previous policy consideration had to be foregone. President Nixon never was willing to do that in Vietnam.

Mr. FINDLEY. Senator, on page 14-I am glad though you brought up the question of language relating to the reintroduction of military forces in Indochina. This same proposal has been made on the House side, as you know, and one reason that I question the wisdom of even supporting it, much less introducing it, is if the language is limited to the Indochina theatre, it leaves the implication that the President has authority to introduce military forces in other areas of armed conflict elsewhere in the world.

LANGUAGE MUST BE CAREFULLY DRAWN

None of us would want to leave that implication, I am sure. Unless the language is carefully drawn, I think it could backfire and tend to

give the President at least the feeling that he had greater authority to move forces and to engage forces than he does under the constitution.

Senator EAGLETON. An argument could certainly be made in that direction.

Mr. FINDLEY. If this bill faces the certainty that it will be vetoed, would you nevertheless recommend that we press forward and enact it?

Senator EAGLETON. Yes. I would adopt in essence the thrust of Senator Javits remarks in answer to a similar question.

As a practical person, I would say the chances are that S. 440, if enacted in this present form, would be vetoed by the President. But, I don't think we should veer away from what we think is the right course to pursue in this very important area. If we fully understand the responsibility assigned to us by the Constitution we can proceed with courage to regain our power. We cannot compromise with the President to satisfy his view of the war powers question.

This area is so important we either ought to pass what is necessary, or leave it alone entirely. We should run the risk of the veto.

Mr. FINDLEY. On the same general point, do you think we should proceed with this legislation intending to attempt an override if that should seem necessary?

Senator EAGLETON. Yes. There is ample precedent for that in this session of Congress because both Houses are pursuing with even more than deliberate speed 11 or 12 bills that were pocket vetoed by the President last October.

Two of them are my bills on aging which have already gone through the Senate, so I would pursue the same theory with respect to this proposal.

DEVISING WORTHWHILE TESTS

Mr. FINDLEY. On the possibility of a different test other than expiration of the 30-day time limit, have you considered the number of forces involved as a worthwhile test. For example, requiring that the President would have to have specific authority to send more than 10,000 troops, say.

Senator EAGLETON. Frankly, Congressman, I have not considered it in that vein. To directly answer, I had not considered it in terms of quantity of forces, number of ground troops, how many ground troops, how many aircraft carriers. Modern weaponry does not require large numbers of men. A war could be started with one pilot. Mr. FINDLEY. You heard the colloquy I had with Senator Javits on the reporting provisions of the two different bills.

Do you have any comments to make? Do you think that the reporting requirement should set forth the legal justification for the introduction of military forces equipped for combat?

Senator EAGLETON. Yes; I think that is what we meant on page 5, line 20; "The estimated scope of hostilities and the consistency of the introduction of such forces and such hostilities or situations with the provision of section 3."

I think that could be redrafted along the lines you are suggesting. I think the President should be required to set forth what legal authority he is proceeding under, because, again, getting back to the Indochina situation, at one time or another both President Nixon and Johnson talked in terms of SEATO.

CITE VARIED AUTHORITY SOURCES FOR VIETNAM INVOLVEMENT

They talked in terms of the Gulf of Tonkin, in terms of Commander in Chief, and their associates talked in terms of year-to-year appropriations, all being used at different times as authority for waging war in Southeast Asia.

I would like the President to cite a provision of our bill to say why he is there. I agree.

Mr. FINDLEY. The way the present Senate bill is drafted the President could slip over that point without any problem. He could make no reference to the specific justification for it.

Would you like to see the reporting requirement expanded from the Senate scope to require a detailed report with legal justification by the President whenever he moves military forces equipped for combat to foreign territory for whatever purpose or whenever he substantially enlarges forces?

Senator EAGLETON. I would like to think that out. What we are attempting to do is set up a structure that better defines interrelationship between the President and Congress in this warmaking area. We have not restricted his right to deploy except when hostilities are imminent in the area these troops would be sent.

I don't question the President's authority to send the fleet anywhere it wants in international waters, within the 12-mile limit. I don't challenge authority to send the fleet 12.1 miles off the coast of Israel.

Back to your previous question, I think an argument can be made that reporting does not delineate authority. It just brings knowledge to the attention of Congress.

WHEN REPORTS REQUIRED

Mr. FINDLEY. The House version does not require a report whenever he moves military forces in international waters or international air space. It is only when they enter foreign territory, air space, or waters that a report is required, or where such forces are substantially enlarged.

The reason I believe in this so much is that I feel that the most fundamental decision that we make in the use of military forces is apt to occur when they are placed on foreign territory in advance of any hostile circumstance.

I am glad we have troops in Europe. I supported their presence and I will continue to, but I recognize their presence there puts them in potential jeopardy. Hostilities may develop there.

And the decision to put the troops in Europe is the fundamental decision; or if we decide to go from four divisions in Europe to eight, that is a fundamental decision that might be provocative and thus increase the possibility of war in Europe.

At that point, I think the President should be obligated to tell Congress what he did and why and to give the legal foundation for it. Senator EAGLETON. I think there is a great deal of merit to what you say.

EAGLETON DISSENTS FROM JAVITS' VIEW

In further amplification of my position, I feel I must dissent from Senator Javits' answer, as I heard it, with respect to the deployment of troops to Israel.