The resolution introduced by Chairman Zablocki, which I am pleased to have cosponsored, includes several modifications of the war powers resolutions passed by the House last year. House Joint Resolution 2, as now written, includes a provision specifying those emergency circumstances under which the President may commit U.S. Armed Forces without a declaration of war. The comparable Senate provision is substantially more specific, and delineates in detail authority which the Presidency has assumed over the years by Executive action and Executive interpretation of the Constitution. Actually, this authority has accrued to the office not from any legal or constitutional basis, but simply from its exercise. The House language is more general, and, I suggest, more in line with our objective.

By legislating powers now only assumed, we are in essence— giving the Executive authority which he does not now have. In other words, we are increasing his power, not decreasing it.

The impoundment issue, although clearly unrelated, is somewhat parallel. If Congress legislates regarding how the President will advise the Congress of his intention to impound funds, and what subsequent action will be taken by the Congress, we are in essence acknowledging the existence of his authority to impound. To define the power, necessarily recognizes its existence.

Similarly, if we, by statute, cite specific powers which are not now in the Constitution nor in the law, we are in reality expanding the authority of the President.

PRESIDENT NEEDS EMERGENCY POWERS

Of course I recognize, as we all do, that the President must have certain emergency powers to protect the country and its citizens. The nature of modern warfare and technology demands it. The House and Senate proposals both recognize this as well. I feel, however, that the less said the better, and urge approval of the language in House Joint Resolution 2.

Second, both the House and the Senate bill require the President to report to the Congress when he takes emergency action to commit U.S. forces. This is crucial. Clearly, if the Congress is to carry out its responsibilities we must always be fully advised. Such consultation should not be limited to after the fact reporting, however.

Central to the war powers issue is the establishing of full, continuing communications between the Congress and the executive branch. The most important factor, in my judgment, is to insure that the Congress is interjected in the war making process at the outset. Translated, this means that the Congress-or at the least those committees with direct jurisdiction over national security affairs-should always be fully apprised of U.S. troop presence and strategic interest anywhere in the world that could lead to involvement in armed conflict. We should know on a regular basis those incidents, minor and maior, reported and unreported, which could lead to any necessity for the commitment of U.S. troops.

We now have the benefit of State Department briefings from time to time generally after the fact and after we've all read about it in the newspapers. But we all know that the high-level foreign policy decisions which could involve the commitment of U.S. forces are made

not in the State Department, nor in the Defense Department, but in the White House in the Office of the National Security Affairs Advisory and among the Joint Chiefs of Staff. It is these officials who should keep the Congress apprised. I say this with all deference to the State Department, of course.

MEANS OF KEEPING CONGRESS INFORMED

It has been suggested that the most effective means of keeping Congress informed might be for each House, or the Congress as a whole, to maintain a "situation room" with full-time staff on the job around the clock. The problems with this are obvious-but the point is we should not have to resort to such measures.

House Joint Resolution 2 does provide for consultation, and directs. the President to consult with the Congress in situations "where imminent involvement in hostilities is clearly indicated."

Ideally, if the Congress were fully apprised, few emergency situations should arise which the Congress did not already have sufficient knowledge of. Furthermore, the concept of consultation need not be viewed as a one-way conversation. Meaningful briefings on sensitive areas could give the administration the benefit of the thinking of Members of Congress as well. The Congress could effectively advise the President, through his advisers, if it felt that our presence in any area was not sufficiently important to warrant possible involvement in war. Such consultation might modify U.S. posture before events leading to armed conflict developed.

In this way, the Congress could interject itself at the very outset of serious developments. There is, of course, a concurrent responsibility of the Congress to give every consideration to matters presented to it.

If the President did act under emergency authority, however, the Congress would have substantial knowledge of the facts leading up to that commitment. It would then be incumbent upon the President to report to the Congress on what specific additional incidents were sufficiently severe to warrant the use of armed forces.

PRESIDENT'S EMERGENCY ACTION ONLY TEMPORARY

It would then be up to the Congress to take further action. It must be clearly understood that any emergency action taken by the President would be only temporary in nature. Only the Congress can declare war and commit the United States to long-term involvement.

The Senate bill provides that the President's emergency authority shall expire within a specific time period-30 days-absent congressional action specifically authorizing continued commitment. Such a provision would, theoretically, put a limitation on the President's authority.

While there are those who subscribe to the theory that it is better to act than not to act, even though the action could predictably be a resounding vote of confidence in the President, I question that theory. It is my contention, that a requirement for congressional action within a specific time period would result, from a practical standpoint, in the automatic, pro forma ratification of the President's action. The pressure of taking action within the 30 days-or even an extended time, as provided for in the bill-would almost demand congressional approval.

The House proposal, on the other hand, provides for immediate congressional consideration regarding future authorization, but does not require action within any specific time frame nor provide for the cessation of the President's authority.

Herein lies the crux of the issue.

A STRUCTURE FOR INFLUENCING THE PRESIDENT

In the winter edition of Foreign Policy, Dr. Jack M. Schick of the Johns Hopkins University School of Advanced International Studies, commented on a series of articles by Senators Eagleton, Stennis, and Goldwater, and myself regarding the war powers issue and, specifically, the Senate proposal. Dr. Schick expressed his opinion that "It (the House bill) creates a structure for influencing the President before he acts which I would argue is the only way for Congress to be effective."

I concur with this position, and suggest that we give consideration to incorporating in any war powers legislation approved by the Congress, an even more explicit provision for insuring high-level consultation on a regular basis-and on an emergency basis when warrantedbetween the Congress and the Executive. While this seems a painfully elementary approach, and would presumably occur out of necessity, we know that we cannot rely on what ought to be. By requiring consultation, perhaps there would be little need for further provisions regarding Presidential action without congressional authority.

The 93d Congress faces a fundamental challenge. That is, whether or not we will meaningfully reassert our initiative in the policymaking process, reestablish our role as a viable force for leadership and change, and assume our constitutional responsibility and authority. Nowhere is it more important that this challenge be met effectively than in the powers of war.

I know the committee will continue to give this issue priority consideration, and I commend you, Mr. Chairman, and the committee members, as well as the distinguished Senators for the lead you have taken in this critical field. The Congress must act, and I urge a full and open discussion between the two bodies in an effort to resolve the difference in postures and enact effective legislation reconfirming the congressional role. I am willing to consider every alternative so that action may proceed in an expeditious manner.

The two bodies of the Congress have finally taken strong action on this issue. The differences which exist between the House and Senate are not so great that they cannot be resolved and a result which can be approved by both bodies obtained. It is extremely essential that we reach an accord. If we do not do so now, the opportunity may be lost for another 197 years.

Thank you, Mr. Chairman.

STATEMENT OF HON. JONATHAN B. BINGHAM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. BINGHAM. First of all, I should like to compliment you, Mr. Chairman, for once again holding hearings on this most important topic.

Senator Javits and others have eloquently argued the need for legislation to reassert the authority of the Congress over basic ques

tions of peace and war. I shall not take the time to repeat these arguments. Let me just point out that President Nixon has in fact asserted the authority to take this country into wars without the consent of Congress and has acted as if he had that authority.

This raises a question which goes to the heart of our democratie system. If the Congress does not act to redress the balance, if the Congress by inaction lets the President's assumption of power stand unchallenged, then the provision of article 1 of the Constitution giving to the Congress the power to declare war is a dead letter.

It has been suggested-by you, Mr. Chairman, and by othersthat any bi. we pass that attempts to limit the President's power to make war will be vetoed and that therefore, we should not pass such a bill.

SOLEMN OBLIGATION OF CONGRESS

With all respect, may I express the contrary view that we as legislators, sworn to defend the Constitution, are under a solemn obligation to pass whatever bill we believe is necessary and proper. We should not base our action on speculation as to what the President will or will not approve.

If both houses of the Congress pass a bill limiting the President's power and if he does veto the bill, then at least the constitutional issue will be clearly drawn and the American people can reset --at the polls or otherwise. The issue will not be clearly put before the people if Congress fails to pass a meaningful bill.

I have another reason for being unhappy about the kind of bill which the House of Representatives has twice passed and which I voted for, with some expressed reservations: A bill that simply asks the President to report on military operations that he has embarked on, without the consent of Congress, implies that the President has the power to engage in war even if the Congress disapproves,

House Joint Resolution 2, which you, Mr. Chairman, have introduced this year does contain a new section 3 which undertakes to specify when the President has such authority, but I would submit that the wording of clause (1) of this section is very broad and in effect gives the President total discretion.

GRAVE FAULTS OF JAVITS BILL

I should like to turn now to what I regard as the grave faults of the Javits bill. I realize, of course, that this is the same bill that was overwhelming passed by the Senate last year and that has been widely accepted by those who believe, as I do, that the Congress should act to limit the President's power to make war; and I have the greatest respect for Senator Javits and others who support his bill. Yet, I am constrained to say that, for all its good intentions, the Javits bill might well turn out to be worse than no bill at all.

First, I believe it is a mistake to attempt to define, as section 3 of the Javits bill does, those situations in which the President has the authority to engage in hostilities without prior congressional approval. Any such list is likely to be either too broad or too narrow, or both, as is indeed the case with Senator Javits' list.

His list is too narrow because it is easy to imagine a situation not covered by the bill when a President ought to be in a position to move rapidly.

Moreover, section 3(4) of the Javits bill appears to rule out a quick response to an attack on a fellow NATO member.

At the same time, Senator Javits' list can be said to be too broad and subject to abuse. Protection of American citizens has often been used in the past as an excuse for American military intervention, and section 3(3) of the Javits bill would expressly permit such action in certain circumstances.

It will be recalled that Mr. Nixon justified the invasion of Cambodia on the ground that it was necessary to protect the safe withdrawal of American forces from Vietnam. Under section 3(3) of the Javits bill, similar reasoning could be used to justify all kinds of military action: The President would merely state that such action was necessary to protect the evacuation of Americans, and there could be no appeal from this finding.

PRESIDENTIAL AUTHORITY TO TAKE ACTION SUBJECT TO CHALLENGE

It seems to me preferable to leave the President's authority to take action uncertain-and always subject to challenge-than to spell it out as Senator Javits has attempted to do. The very existence in a statute of four categories of situation where military action could be taken might well constitute a kind of invitation to Presidents, present and future, to embark on military adventures.

The other grievous flaw in the Javits bill, as I see it, is the rigid 30-day period within which the Congress must act. First of all, in many cases it would be difficult if not impossible to determine when the 30-day period begins to run. If the Javits bill had been law during the fifties and sixties, on what date would the U.S. military involvement in Vietnam have been said to begin-when the first military advisers were sent out by President Eisenhower, when the number of advisers was raised to 20,000 by President Kennedy, when President Johnson ordered American planes or ground troops-into action?

An even more serious objection is that the 30-day limit is wholly arbitrary. Thirty days might be too long, permitting a President to involve the United States irrevocably. Or it might be too short a period for Congress to act wisely and with full information (remember how long it took for the full story of the Bay of Tonkin incident to emerge).

It would require the Congress to say, "Yes," or, "No," to an operation at a fairly early stage. At the end of 30 days, a given military operation might still be a very limited one, involving a small number of planes and personnel.

Ôn that basis, the Congress might give its approval, and the President would then, in effect, have carte blanche to escalate the level of hostilities and multiply the size of the operation.

Also, the 30-day deadline may come at a time when the implications of the operation are by no means clear, when the operation may still be popular with the American people, who do not realize the morass it may lead into.