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Today, suppose the President sends 20,000 “advisers" to Israel. I think that he would have to obtain congressional approval, because I think that is a situation where imminent involvement in hostilities is clearly indicated by the circumstances. But there is, of course, room for debate on this point. That is why we would subject such questions to a majority vote.
I take it Senator Javits agrees on when the 30 days would start in such a case. And with the House language, the President would have to posthaste tell us under what authority and why he is sending troops there.
Mr. FOUNTAIN. I want to thank you, Senator Eagleton, and Senator Javits, for coming and giving us the benefit of your thinking on this delicate and important question.
I yield to Congressman Bingham.
Mr. BINGHAM. I would like to commend Senator Eagleton on an excellent presentation and also on his leadership in this field.
One specific question, Senator. You state on page 13 that, “If on the other hand, the President has clearly and blatantly abused his emergency authority, Congress may act to stop him immediately, even before the 30-day period is completed."
That is pursuant to your section 6. But is it not true that that section contemplates that be done by bill or joint resolution which would require the signature of the President to be effective?
Senator EAGLETON. The way you posed the question is basically correct in that if Congress were to act on, say, section 3, and say, “No,” it would have to pass both Houses. It could then be vetoed by the President and would put the burden on Congress of having the two-thirds vote, both Houses, to override that.
PRESIDENT ACTS ON IMPLIED CONSENT FROM CONGRESS Mr. Bingham. May I call your attention to my position which is that any action by the President in this area is done with the implied consent of Congress as long as Congress has not acted and that the implied consent can be and should be permitted to be withdrawn by a simple act of Congress without concurrence of the President or by the simple act of one House.
Senator EAGLETON. I think your idea of action by one body approaches a novel situation. There is some precedent, I think, for one House action in the Government Reorganization Act.
I don't consider this to be an analogous situation, however. I think that both Houses should participate in this and not either one have a veto of Presidential authority.
Mr. BINGHAM. But when you require affirmative action either House can veto that affirmative act, right?
Senator EAGLETON. That is correct.
Mr. BINGHAM. So that is not very different. Either House can say no to your affirmative resolution.
Senator EAGLETON. Yes, sir, in which event under our bill that terminates on day 30.
Mr. BINGHAM. What would your answer be after hearing the colloquy with Senator Javits, about when the 30 days would begin if this bill had been in effect during the Vietnam war?
Senator EAGLETON. I think it began sooner than Senator Javits indicated. I heard his answer to be that it began when the intensive bombing started in March of 1965. I think it well predated the Gulf of Tonkin in August of 1964. I don't know if it was when the first adviser went over under Eisenhower, but the event would come under the provisions of our bill. If 34 Senators, for instance, considered an action to be triggering the 30-day clause, then a vote could take place. We must, in the end, depend upon the good faith of the President.
WHEN DOES 30-DAY PERIOD BEGIN?
Mr. BÎNGHAM. Would you agree the question of determining that point of beginning of the 30-day period is a very difficult question?
Senator ĒAGLETON. Yes. I wish I had a precise date. I wish I could say October 12, 1962, because such and such happened precisely on that date. But to dwell in the past when relationships in this area were not defined as they would be in our bill is fruitless. We intend to change those relationships.
Mr. FOUNTAIN. Senator Eagleton, I agree with you that legalistically when we repealed the Gulf of Tonkin resolution, we were saying in effect, “Get out of this war," but I don't think it was construed in
“ that light, and I don't think we debated in that light. I don't think we considered it that serious.
At least, we did not in the House. It was an adjunct to other situations. I think it is regrettable we did not debate the impact of the repeal of the Gulf of Tonkin resolution. But I agree with you, if we repealed it, we would be saying to the President, "Get out of Vietnam as soon as we can.
Senator EAGLETON. That is the way I viewed it.
Mr. BINGHAM. May I ask unanimous consent that my testimony as submitted before the committee be introduced in the record as if read today and I will be glad to answer any questions at a later date.
Mr. ZABLOCKI. It was the Chair's intention, should the members of the subcommittee be willing, to recess for the quorum call. Would you care to come back?
Mr. Bingham. I have difficulty in that I have an engagement but I am ready to comply with the wishes of the committee.
Mr. ZABLOCKI. Without objection the statements of Congressmen Dante Fascell, Jonathan Bingham, and William Chappell, Jr. will be placed in the record at the conclusion of today's testimony as though read.
Mr. du Pont, any questions.
Mr. Du Pont. I have some questions, but I think if we get involved with them, we are going to miss our quorum call. I would personally be happy to miss the quorum call. It depends on your feeling on it.
Mr. ZABLOCKI. Begin the questions.
Senator, I would like to go back to my colloquy with Senator Javits concerning section 5. I don't know, perhaps I could have your opinion as to why you don't draft a bill to reverse the approval required by the Congress to permit the President to continue unless the Congress acts.
GIVING CONGRESS STRONG HAND IN DECISIONMAKING PROCESS
Senator EAGLETON. We think that the basic decision in terms of huw and why and when and where to go to war is Congress' decision
under the intention of the Constitution, and we want to give Congress the strong hand in that decisionmaking process.
Mr. Du Pont. What I worry about is, having served in Congress, you know as well as I that many of our colleagues are masters at preventing Congress from taking any action at all.
I particularly worry about this when I think of a defensive action, when I think of Armed Forces engaged in repelling an attack on the U.S. territory and that Congress for some reason is unable to act, and therefore, the bill requires disengagement of those troops.
When I made that point to Senator Javits, he gave me what I consider an unusual reading of the word, "disengagement.” He suggested we could keep on fighting to persuade the enemy to disengage.
Senator EAGLETON. I disagree. We use the words, "prompt disengagement.” We had a debate on the difference between withdrawal and disengagement. We modified it by a "prompt” adjective.
Mr. Du Pont. And you also intend it to apply unilaterally to U.S. forces?
Senator EAGLETON. That is correct.
Mr. Du Pont. What would you think of a suggestion that in your section 3, which is emergency use of Armed Forces, in which you attempt to set forth the different circumstances and codify the President's power--what would you think of exempting section 3(1) which deals with armed attack of the United States from the requirement of section 5 so that if the action were totally defensive, failure of action by Congress would not require disengagement.
Senator EAGLETON. Before answering that-and that has never been proposed to me before—what would be the rationale as you would assume it. Let’s assume an attack on-country X lands troops and country Y lands troops up in Maine, and they are working their way down the Maine coastline toward Massachusetts. Under any theory, why won't Congress act? Under any theory whatsoever?
PREVENTING A FILIBUSTER IN THE SENATE
Mr. Du Pont. I am not sure of that, but I have seen my colleagues fail to act so often that I am just worried about the situation in which it would not. I do not have a specific for you. I am not sure either that Senator Javits convinced me this language prevents a filibuster in your body.
Senator EAGLETON. We intend that it does.
Mr. Du Pont. Suppose a filibuster is going on-and Maine is a tough example, but American Samoa is a better one-when some people felt we should not be engaged in repelling the invasion and for some reason the 30 days expires.
In other words, I agree with you wholeheartedly in your view of offensive operations by the United States, but putting us in jeopardy of defending our territory defensively seems to me a little unusual.
Senator EAGLETON. Let me ponder that. It is a question of first impression to me and I don't want to give a quick off-the-top-of-thehead answer to a good and valid question.
Mr. BIESTER. Senator, I am concerned about whether, and if so to what extent, adoption of 440 would involve an offer to amend any of our treaty obligations such as NATO?
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Senator EAGLETON. I don't think it does. This was raised by Senator Sparkman at the Foreign Relations Committee hearing last year on a similar war powers
bill. There is language, in NATO, for instance, that nothing herein contained in this treaty shall affect the obligations of countries to participate pursuant to its constitutional process.
Mr. BIESTER. I appreciate this, but apart from legalism and interpretations of NATO, to what extent would it be an offer of invasion of the whole process of the commitment to the defense of Europe?
AUTHORIZATION TO BECOME ENGAGED IN WAR
Senator EAGLETON. I don't think it would have a disastrous or negative effect. I think it must be well known to the leaders of Great Britain and West Germany that before American troops become involved there has to be authorization to become engaged in war.
It might be a widely known fact, but I think it is known by leaders of respective countries, and I don't think further codifying this in the war powers bill would have a negative effect.
Mr. BIESTER. Suppose there was an attack on West Germany and our forces were involved, so we have 3-1 or 3–2 situation and the Congress voted against further involvement. Then it would be the obligation, I take it, of the President to get those troops out, prompt disengagement. How would he go about doing that?
Senator EAGLETON. And also protecting the troops while they are being promptly disengaged. Are you worrying about what happens to them when they are under fire in the process of disengagement?
Mr. BIESTER. From what sources would they be under fire? Suppose an attack on France, West Germany, and Italy, and Congress votes, "No," and we try to get 330,000 troops out of Europe. How will that be accomplished?
Senator EAGLETON. I guess with an airlift.
Mr. BIESTER. Do you think it might be difficult with our then former allies?
Senator EAGLETON. It might be somewhat difficult, but suppose we don't pass any bill at all, none whatsoever, and the same hypothetical thing takes place. I think you have to come to Congress to get a declaration of war. Suppose we refuse to give it?
Mr. BIESTER. I agree.
TREATY OBLIGATIONS TO ALLIES
Senator EAGLETON. Either House refuses to go along with the declaration. What effect does that have on our “Treaty obligations” with our allies?
Mr. BIESTER. I agree with you. It comes back to the question of whether it is a negative action on the part of Congress or affirmative action on the part of Congress.
I share Mr. du Pont's apprehension about our moving sometimes. It represents an example that could be perhaps in a SEATO country.
With respect to other NATO countries, does the Prime Minister of Great Britain have the capacity to put British troops in Europe?
Senator EAGLETON. I don't know what the constitutional authorization is in Britain or Belgium or any of the other NATO countries.
Mr. BIESTER. That has not established our relationship.
Mr. BIESTER. And we assume any change in ourselves would stabilize theirs.
Senator EAGLETON. Since it is clearly worded in the NATO alliance that actions will be taken pursuant to constitutional role of each power, it is already there and they are on notice of it.
Mr. ZABLOCKI. Thank you, Senator. The subcommittee stands adjourned until 10 a.m., tomorrow morning.
(Whereupon, at 12:25 p.m. the subcommittee adjourned, to reconvene at 10 a.m., Thursday, March 8, 1973.)
[The statements of Congressmen Fascell, Bingham, and Chappell follow :)
STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. FASCELL. Mr. Chairman, thank you for this opportunity to appear before your subcommittee once again in support of war powers legislation. I commend you for scheduling early consideration of this crucial issue. Now is the time to act. It is imperative that we look to our involvement in Vietnam, and take action while that experience weighs clearly in our minds. The subcommittee's prompt action again reflects your strong leadership on this issue, Mr. Chairman, and you are to be congratulated.
I am glad that the distinguished Members of the other bodySenator Javits and Senator Eagleton-have joined us today. Under their leadership in the Senate, overwhelming support has been generated for the reassertion of the congressional prerogative and responsibility.
Since this committee first held hearings on war powers proposals in 1970, there has been growing support-and need-for affirmative action by the Congress to reassert itself as an integral part of the war power decision making process. We have reviewed and debated the constitutional provisions, the notes of the constitutional convent'on, and historical precedence. This has led to the inescapable conclusion that the responsibility, under the Constitution, of committing U.S. troops to armed conflict is one shared by the legislative and executive branches of Government. The balance between the two branches intended by the framers of the Constitution has in recent history, however, swung heavily to the executive. Our efforts, then, are directed at restoring a proper balance by defining arrangements which will allow the President and Congress to work together toward the goal of maintaining the peace and security of the Nation.
RESOLVING DIFFERENCES BETWEEN HOUSE, SENATE MEASURES The House has on two occasions passed legislation reported by this committee. Last year, the Senate also passed war powers legislation by a substantial "margin, which has been reintroduced this year by the distinguished Senator from New York, Mr. Javits, and at least 57 of his colleagues. The task before us is to resolve the differences between the two measures.