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WHAT CONSTITUTES INVOLVEMENT OF U.S. FORCES ?

Mr. FRASER. Supposing Marine guards at an embassy become involved in some military action? For example, supposing there is a siege of the embassy and the Marine guards become involved in protecting the embassy. Would that be an involvement of U.S. forces in hostilities?

Mr. BINGHAM. I suppose it could be.

Mr. FRASER. You have a provision that deals not only with the right of veto but with the requirement that the President convene the Congress in extraordinary session if they are not in session when the incident develops.

Mr. Binghay. I do and I think it is a good provision. As I said earlier, I want to revise my bill in a number of respects before reintroducing it and I think that is one provision that I would certainly include. I also would like to incorporate the new section on reporting in House Joint Resolution 2 which I think has been improved. I see a lot of problems with trying to define exactly what the term hostilities means.

Mr. FRASER. Let me come to a question that is fundamental. By imposing constraints on the President by making it easier for Congress to shut down a military involvement we encourage the President to create-manufacture, if you will—the kind of incident that would lead to a marshaling of public opinion behind his actions. In other words, if the President decides rightly or wrongly that our country should become involved, my impression is that, the President is going to make sure first that he has Congress tied up or tied down. Are we really creating an effective congressional device here?

OPPOSED TO SPELLING OUT CIRCUMSTANCES OF PRESIDENTIAL ACTION

Mr. BINGHAM. Well, I share the same concern, Mr. Fraser, and that is one reason why I am opposed to any effort to spell out the circumstances in which the President can move. Again if you phrase the legislation in negative terms and provide a mechanism for the Congress to say no, you don't have to spell out when the President can move, as is attempted in the Javits bill and to a certain extent under section 3 of House Joint Resolution 2. I think that either the President can manufacture the situation to bring his action within the scope of the authority or he can simply state that his action is necessary in order to protect American citizens, and then he goes on from there. We have certainly seen the same sort of thing in Vietnam when the President asserted that he had the right to go into Cambodia in order to protect the safety of American troops being withdrawn from Vietnam.

Mr. FRASER. I think your criticism of the Javits bill is right on target; I would agree with that, Mr. Bingham.

Would the Gulf of Tonkin resolution be the specific authorization that you call for under section 3 of your bill? You say, ''in the absence of a declaration of war or specific authorization by Congress * * *

Mr. BINGHAM. I am not sure of the answer to that. I think it probably would, but I have not looked at the language recently.

Mr. FRASER. Would a specific enactment by the United Nations Security Council calling for the use of armed forces in an international

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conflict constitute "specific authorization" through our commitment to the U.N. charter.

Mr. BINGHAM. No; I don't think so. I think that you raise a question there about whether under the terms of the Javits bill the President could have responded as Mr. Truman did in Korea without specific authorization. That is one of the areas where I think the Javits bill may be too narrow. Frankly, I think the President should have the authority to move ahead under the obligations of the U.N. charter, but I think that that activity by the President should be subject to Congress saying no.

U.N. ACTION ON WAR AND PEACE ISSUE

Mr. FRASER. Then there is this other alternative in the United Nations, I think it is called the uniting for peace resolution, that authorized the General Assembly to take up an issue affecting war and peace. They don't have the power now to directly involve the United Nations but I think under that provision the General Assembly calls on member nations to support the action.

Mr. BINGHAM. That certainly would not be specific authorization, certainly not. Again I think that the President would have the responsibility to decide whether he was going to move in that direction but it would be subject to veto by the Congress.

Mr. FRASER. The problem I have with all these bills is that I have seen so much of our foreign policy develop on the basis of what has happened most recently. I think Munich helped carry us into the Vietnam war and I have become increasingly skeptical of framing legal devices based on what has happened in the last 10 years. At least I have not seen it work so far. My view is that the Senate acted responsibly with respest to Southeast Asia and the House acted irresponsibly by failing to terminate our involvement in the war.

I worry about when the President, say, in response to a United Nations uniting for peace resolution commits U.S. Forces to an action that is not popular in the House. For example, I can conceive of a situation in the southern part of Africa in which the racial issue emerges. The United Nations votes to support the African majority in this international problem. Now we have empowered one House to veto a President's favorable response to the U.N, action which in my judgment would be on the right side. I am skeptical of our supporting the right prescriptions here.

In brief, I have come to the conclusion that I don't think any legislation ought to be passed. That is where I come out because no matter what legislation is proposed, I see problems with it.

CONGRESSIONAL OPPOSITION SHOULD CONTROL

Mr. BINGHAM. Mr. Fraser, I might agree with you as to what we should or should not do in a particular situation but I have to stick philosophically to my point that, if either of the elected bodies of the Congress with their responsibilities is opposed to the President carrying on hostilities, then that opposition should control. I don't think the President's power to take action, whether it be under treaty—which it is in the case of the United Nations, or under anything other than a specific authorization by the Congress-should be such that he can exercise it because he thinks he should, even though one House or the other is opposed to it. I would apply that principle even in a situation where I might think the President was right and the House that said no was wrong.

Frankly, I think for the Congress to take no action at all in this situation would be a copout on our part. We have a problem here and we have to face up to it, we have to try to deal with it. It is a difficult problem but we have seen how inadequate the power of the purse is, in terms that we have not effectively exercised it.

Mr. FRASER. It is not inadequate, the power of the purse is overwhelming.

Mr. BINGHAM. It is.

Mr. FRASER. What you are saying is there is either the lack of will or interest to use it.

Mr. BINGHAM. Admittedly we have not had a case where the power of the purse was exercised in the effort to control or bring to an end the Vietnam war. That is true and that is because the Congress didn't vote it. But, aside from that, the power of the purse is a clumsy tool. It is not a precise tool for the Congress to use.

Incidentally, Mr. Chairman, I think that the fact that the Congress does have the power of the purse is a strong argument in favor of the constitutionality of the Congress having authority in this field. If we have the power to say no by refusing to vote the funds, then we have the power to say no in some other way. I think we should provide a more precise tool for the Congress to exercise its authority in this field and not rely on the power of the purse.

DECLARING WAR ON NORTH VIETNAM

Mr. FRASER. Finally, one of the things the Congress clearly would have done from the middle of 1964 through the middle of 1967, had the President requested it, is we would have declared war on North Vietnam which in my judgment would have represented a further error.

Mr. BINGHAM. I agree with that.

Mr. FRASER. Yet the provisions of your bill would have protected him. He could not have gotten the same protection by relying specifically on the Gulf of Tonkin resolution. You say "in the absence of a specific authorization or a declaration of war," but the clearest hedge against any single House of veto would have been a declaration of war.

Mr. BINGHAM. That would be true in any situation, I think.
Mr. FRASER. That is right.
Mr. BINGHAM. I don't think you can

Mr. FRASER. All I am saying is that this encourages the executive branch to protect itself.

Mr. BINGHAM. If a specific authorization other than a declaration of war would serve his purpose, I don't see why the President would go

the more extreme route in order to avoid the possibility of veto. Mr. FRASER. Well, supposing, for example, that the Gulf of Tonkin were written in the light of this section and would have been fashioned in a way that the Department lawyer said, OK, this satisfies the requirement. General as the language is, it is specific enough to comply with section 3 of this law.

Now in that case in order to stop the President you would then have had to repeal that authorization.

Mr. BINGHAM. That is right.
Mr. FRASER. Which is subject to veto.
Mr. BINGHAM. Right.
Mr. FRASER. And subject to action by both Houses.
Mr. BINGHAM. Right.

Mr. FRASER. It seems to me that every President is going to make sure they have that authorization and they are going to try to generate the public attitudes that will in effect force the Congress to enact it.

PRESERVING PRINCIPLE OF CONGRESSIONAL AUTHORITY

Mr. BINGHAM. Well, that may be true, but at least then you have preserved the principle that the Congress has a role in these decisions. If you go one of the other routes, either you are doing nothing to restrain the President, or you are calling specifically for an approval which would then stand unless repealed.

Mr. FRASER. Well, I will conclude by saying that I guess I am getting conservative in my old age. But I have seen so many things come around full circle and hit you in the back that I am not at this point really persuaded that we should do anything. We may make it worse.

Thank you, Mr. Chairman.

Mr. Du Pont. Mr. Chairman, I think the discussion that has just been heard between Mr. Bingham and Mr. Fraser points up very clearly the difficulty of drafting a detailed piece of legislation. Somehow circumstance will always throw up at you a situation you have not clearly envisaged. I would say that while I am not totally agreeing with Mr. Fraser that we ought to do nothing, that this discussion illustrates perhaps the wisdom of trying to draft the broadest possible kind of legislation without getting into specifics.

Mr. ZABLOCKI. I might add the more testimony I hear, the more I feel that House Joint Resolution 1 was the better approach and that probably section 3 and section 6 should be eliminated.

I do believe that the Congress should assert itself and request that its obligations in the war powers area be recognized. Further, that the President should consult with Congress; and should a commitment of U.S. Forces be made, that such a commitment be reported. That is as far as the chairman would care to go. Certainly we do not want to hamstring the President in the defense of our country or our citizens. Therefore, in the original version, we tried to avoid defining the war powers and to codify the war powers of the Congress or the President.

If I may just ask one further question, and I asked this of the Senator yesterday. In section 5 of your bill, the congressional priority provision, you recall Senator Javits said he was concerned about an improvident decision--the improvident decision, for example, some critics claim the Congress made in passing the Tonkin Gulf resolution. Under emotional stress, unfortunately, Congress may react by making such decisions.

DOES NOT BYPASS NORMAL PROCEDURES

Under your section 5 the disapproval is sponsored or cosponsored by one-third of the Members of the House of which it originally had been considered reported to the floor of such House no later than 1 day following its introduction unless the Members, of course, of such House otherwise determined by reas or nars.

Dces this nct really bypass the process of normal procedures which would include committee hearings, a report or other deliberations before a vote would be called fordeliberations which would hopefully belp us aroid improvident decisions by either House?

I fully recall the Senator's reply, but I wonder what your view is.

VI. BINGHAM. Jr. Chairman, if I may call attention to the last paragraph of my prepared statement, I indicated there that I was prepared in my revised bill to omit section 5. I have come to the conclusion that, at least as far as the House is concerned, such a provision is not necessary, and it does raise questions which you have raised before rery persuasively. So I propose in my revised version of the bill to omit that section.

Mr. ZABLOCKI. Any further questions?
Thank you, Congressman Bingham.
Mr. BINGHAM. Thank you, Mr. Chairman.
Vr. ZABLOCKI. Congressman Matsunaga.

STATEMENT OF HON. SPARK M. MATSUNAGA, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF HAWAII Mr. VIATSUNAGA. Thank you, Mr. Chairman.

Mr. ZABLOCKI. Welcome, Congressman Matsunaga. I want to express my appreciation for your past efforts and cooperation in sharing your wisdom and your views in this area with our subcommittee members and our colleagues on the floor in the past. I might say personally I am somewhat surprised you picked up the Senate bill, but I am sure you can defend it in testimony this morning.

Mr. MATSUNAGA. Thank you very much, Vir: Chairman and members of the subcommittee, for providing me this opportunity to erpress my views on H.R. 2053, a bill I have introduced relating to the war powers of Congress. This is a matter which I know has been the subject of hearings on sereral occasions by this distinguished subcommittee, and I commend you on your demonstrated interest, for at stake is the most important issue faced by any nation, the fateful issue of peace or war.

H.R. 2053, as the chairman has observed, is virtually identical to legislation which passed the Senate last year by the overwhelming margin of 68 to 16. It starts from the premise that the President must obtain prior congressional approval before committing American Armed Forces in any hostilities. However, the President would not be required to seek prior congressional approral

EXCEPTIONS TO NEED OF SEEKING PRIOR CONGRESSIONAL APPROVAL

1. In the event of an invasion of the United States or its territories, or to prevent an imminent invasion;

2. To protect our Armed Forces overseas;

3. To rescue Americans from dangerous situations ir Olie countries; or

4. Pursuant to a specific grant of authority by Concurrans cover the particular situation in which the forces are to be boste

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