cause some confusion. Let me ask the same question of you and perhaps you can help us.

The question was asked Senator Javits: When does the 30 days begin? If your bill had been in effect in the Vietnam conflict, when in your opinion did the 30 days begin?

Mr. MATSUNAGA. There is a lack of exact definition of the terms, I concede to the gentleman, in H.R. 2053 as well as in the Javits bill. This is an area I believe the committee would need to go into in order to clarify the terms used, such as "the introduction of hostilities." I would say if I were to give my own interpretation, the 30 days would begin when military advisers are dispatched to the battle areas.

Mr. DU PONT. Would you think that the dispatching of military advisers today to the Middle East, to Israel, would constitute the beginning of the 30-day period?

Mr. MATSUNAGA. My interpretation would be yes.

CUBAN MISSILE CRISIS, BAY OF PIGS OPERATION

Mr. DU PONT. All right. One other question.

You mentioned several examples in your testimony. Do you see a basic difference between the Cuban missile crisis and the Bay of Pigs operation?

Mr. MATSUNAGA. Yes; I do. Had I then been a Member of Congress, I would have supported the President in the missile crisis, but not in the Bay of Pigs situation.

Mr. DU PONT. Exactly, and the difference is in one instance we were conducting a defensive operation and in the other an offensive operation.

Mr. MATSUNAGA. I agree.

Mr. DU PONT. Let me just suggest to you that I have not formulated this fully in my own mind but you might consider this between now and whenever we get action in the committee here.

Might it not be appropriate to attempt to draft a resolution that somehow distinguishes between defensive operations to protect the United States and offensive excursions which I think is the chief reason that this legislation has been needed?

Mr. MATSUNAGA. Section 3 of my bill, of course, intends to do just that, but in discussing this matter more in detail in committee, especially during the markup sessions, I suppose much could be done to clarify the language.

Mr. DU PONT. Thank you very much.

Thank you, Mr. Chairman.

Mr. ZABLOCKI. Mr. Biester.

Mr. BIESTER. Thank you, Mr. Chairman.

I apologize to Mr. Matsunaga for being late.

Mr. MATSUNAGA. I am late for an appointment.

Mr. BIESTER. I will therefore simply make that apology, note the gentleman's observation, and say that I have been to a briefing on the tragic situation at Sudan and I will defer questions.

Thank you.

Mr. MATSUNAGA. I thank you.

Mr. ZABLOCKI. Thank you, Congressman Matsunaga. We certainly appreciate your coming before this committee and sharing your views.

We certainly will look forward to your recommendation and revisions to your own version.

Mr. MATSUNAGA. Thank you very much, Mr. Chairman, and members of the subcommittee.

Mr. ZABLOCKI. Mr. Leggett.

STATEMENT OF HON. ROBERT L. LEGGETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. LEGGETT. Thank you, Mr. Chairman.

Mr. ZABLOCKI. I understand you are pressed for time, that you had an 11:30 appointment.

Mr. LEGGETT. I have to go to a luncheon for Mr. O'Neal.

I would like to give a short summary and then submit my statement for the record, Mr. Chairman.

I do not know whether the committee has before it my House Joint Resolution 315 but it is my rather simplified approach to the overall problem. What it does, it puts the war power article I, section 8, clause 13-it puts the war power in the Congress and I don't think that anything that we do here that requires a further signature of the President of the United States is going to be signed by him very frankly. If the President does not sign it, I don't think that the Congress has shown any less inclination to give two-thirds support to overrule him in any international area.

WAR IS WHEN THE CONGRESS DECLARES IT

Therefore, the question is if we want to exert some kind of control in a Vietnam situation I think we have to do it simply by assisting the courts in declaring what war is, and in my House Joint Resolution 315 I purport to do that very simply. We say in the first section there that war is when the Congress declares it, and No. 2, the term "war" shall not include a state of international combat where less than 5,000 personnel of land, sea, and air force are committed to armed combat outside the United States for less than 10 days unless expressly so declared by the Congress in accordance with the first section of this joint resolution.

Then the third section states simply that no action of either house. authorizing or appropriating funds shall either directly or by implication declare war. I go on in my statement to explain that this would not rule out hot pursuit situations. If we have a nuclear onslaught on the United States, we all presume that the President, as Mr. Fraser has indicated, has the power to effect instantaneous retaliation and if our ships are attacked overseas, just as in criminal cases we have the hot pursuit theory we would have the hot pursuit theory in war situations where we could actually pursue the aggressor on the spot wherever he might be.

I would tend to think that with this simple declaration by both Houses of Congress we would then not be, No. 1, ratifying the power of the President to involve us for 30 or 60 or 90 days without the consent of Congress. Second, I don't think that we should necessarily presume that a declaration like this would precipitate us into war situations because I don't think that we would necessarily have to come in and pass a declaration of war in an unlimited volume or time

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any time the situation warranted an involvement of more than a fixed number of men for longer than a fixed time period.

NEED FOR LIMITATIONS

There is nothing magic about 5,000 men or nothing magic about 10 days. I wanted to put some limitations on that to get the attention of the committee. I do think though that we did exactly the wrong thing in the Gulf of Tonkin by all of us voting for this ratification that in fact ratified a long war that we did not have any control of in the Congress. We should have fixed some limits on that, and the way we do it is to do it under the war power where if we declare war, we declare a fixed war if it is going to be this type of slow, sucking in type of thing such as Vietnam was.

I would apply that to like we are in Thailand today-we have 37,000 troops over there, maybe 47,000, depending on how we redeploy the Vietnam forces. We are obviously using those forces. Even if we execute the Laotian agreement, if we are parties to something there and the Vietnam agreement, the question is at what point do we need further authority to support Thai troops in Thailand. I think that if we are using more than 10,000 personnel in an active combat role bombing different Thai installations within Thailand, which we are, why then I think they would have to come back to the Congress and get our approval on a form of declaration of war. It might not say we declare war against the guerrillas in Thailand but within the war power we have got considerable power and the President would be forced to come back and consult with the Congress and reach some kind of an accommodation and we could put fixed time limits. on that.

[Mr. Leggett's prepared statement follows:]

STATEMENT OF HON. ROBERT L. LEGGETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. Chairman and Members of the Subcommittee: I am pleased to have the opportunity to testify on legislation designed to clarify the President's authority to engage in foreign military actions without the express consent of Congress.

These hearings come at a particularly crucial time. We appear to be concluding the longest, and one of the most painful wars in our history. Vietnam has cost us some 56,000 lives and $200 billion in direct expenditures. It has obligated us for another $200 billion in veterans' benefits, and has caused the greatest national rift since the War between the States. Yet, technically Vietnam was not a war, as it was never declared by Congress.

The Vietnam tragedy began within the impermeable walls of the Executive Branch, and it was largely conducted within those same walls with little or no Congressional input. As disturbing as this fact is, we must realize that Vietnam is only the last installment in three decades of Presidential infringement upon Congressional authority in the war-making area.

This infringement began with the 1941 occupation of Greenland, Iceland, and Dutch Guinea. It continued with the 1958 landing in Lebanon, and escalated with the Bay of Pigs invasion in 1962 and the Dominican Republic invasion of 1963. The termination of the conflict in Indochina affords us a unique opportunity to turn back this record and re-establish Congressional authority in this area.

It is certainly clear that the framers of the Constitution intended the warmaking powers to reside with the Legislative Branch. For example, Thomas Jefferson wrote to James Madison in 1789 that, "we have already given in one example one effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay".

The record shows that for some 150 years Thomas Jefferson's brag was no boast This is not to say that the Executive Branch did not ever commit American forces to foreign hostilities without Congressional assent. There have been, in fact, over 100 occasions in which an American President has used the military of the U.S. to intervene in foreign affairs, but nearly all of these interventions were of a very short duration and limited to the Western Hemisphere. Moreover, the few instances of American intervention outside the Western Hemisphere, such as the introduction of troops into Shanghai in 1859 and China in 1911, were an attempt to protect American lives and property from mob violence or revolution.

As History Professor Henry Steele Commager has testified, "it is only in the last 20 years that Presidents appear to have thrown caution and even constitutional scruples to the wind and ventured, on their own authority, into military operations that could only be termed acts of war.

The arguments for allowing the Executive Branch to engage in foreign military operations without the consent of Congress, are simple. The heightened pace, complexity and hazards of contemporary existence often require rapid and clear decisions without having those decisions subjected to prior publicity. We are told that secrecy in foreign affairs is invaluable, and that a credible military deterrent depends on a perception by other nations that our country is resolute in its determination to take decisive immediate action. Such action, the reasoning goes, is inimical to the nature of a deliberative body such as the U.S. Congress.

I am well aware that secrecy has its place in modern political institutions. I have no doubt that last year's détente with the Peoples Republic of China, for example, was at least partially due to Dr. Kissinger's ability to steal off into the night. The function of secrecy, however, ends when we begin talking not about détente, but the commitment of American men and material to a foreign military action.

The country is based on the apparent conviction that the best government is not necessarily the most efficient one. It is very disconcerting to hear it argued that the U.S. Constitution must be circumvented because speed and efficiency demand it. If the framers of the Constitution thought speed and efficiency demanded anything, they certainly would not have devised a system of government whose byword is caution, deliberation and compromise.

Five times in the last 12 years American presidents have mounted major military interventions in foreign nations without prior consultation with the Congress. These include the Bay of Pigs, the Invasion of the Dominican Republic, and the attacks on North Vietnam, Cambodia and Laos. Of the five, none were in response to an emergency; only one, the action in the Dominican Republic, could be remotely defended on the grounds that it was intended to protect American lives; and in all given cases it probably would have been better to break Executive secrecy and subject them to Congressional scrutiny.

Let's look at the record of these five actions. The Bay of Pigs was marked with ill-conception, mis-management and poor intelligence from start to finish. The invasion of the Dominican Republic began as an attempt to protect American tourists and ended as a massive intrusion into a foreign civil conflict. It precipitated a serious disintegration of the U.S. position within O.A.S.

The Cambodian "incursion", billed as the Normandy invasion of the Vietnam conflict, succeeded only in capturing bags of rice and caches of outdated Communist weaponry, and the attacks on North Vietnam and Laos speak for themselves. They destroyed a countryside, but failed to bring either a speedy or honorable end to the war, and really only created two more wars that required a negotiated "Peace with Honor".

In retrospect, Mr. Chairman, it is clear that the long run interests of the Nation in all of these instances would have been better served if the President had submitted to the healthy delays of the legislative process.

There are a number of bills before this committee which seek to prevent a reoccurrence of past mistakes by placing restraints on the President's ability to commit U.S. troops in foreign actions. Most of these measures fail to take into account the central fact of the last eight years. The Congress always had the power to end the Vietnam war. It could always withhold money for the war, but it never did.

The Executive Branch controlled the debate on the war. Presidents Eisenhower, Kennedy, Johnson and Nixon, with their vast access to the media, succeeded in defining for the country and the Congress what Vietnam was all about,-what constituted victory and what constituted defeat. The Congress was faced with a

fait accompli; it was either support the troops or face the extermination of those troops in South Vietnam. Given this state of affairs, it is not surprising that the Congress tended to accede to the President.

Thus, the bills before you that allow the President to commit troops for 30 to 90 days without the consent of Congress will fail to re-establish Congressional authority in this area. What Congress would vote for "surrender", as defined by the President-once our soldiers have been fighting in some foreign land for a month? Congressional power to make war depends on our ability to control debate before the fact, before the Executive Branch establishes a stranglehold on information sources and the media.

I have introduced a resolution, H.J. Res. 315, which would sharply limit the President's ability to ease us into a war by placing concrete limits on his prerogative as Commander and Chief. My resolution would explicitly define "war" as used in the Constitution as any international combat situation to which 5,000 air, sea or land armed combat forces are committed outside the U.S. for more than 10 days. This Joint Resolution does not require Presidential approval which is the basic flaw in all the other bills before you. NO President will voluntarily limit his powers and NO Congress in recent years has had nearly two-thirds support to reverse Presidential intent on an international issue. I would, of course, except by implication a certain situation of "hot pursuit" where our forces were overtly attacked including the President's powers to effect immediate nuclear retaliation because of a nuclear onslaught.

The President could respond to a Pearl Harbor type situation, but if he intended to commit troops for more than ten days he would have to come to the Congress for support. It may be that even ten days is too long. It is conceivable that even in this short span of time the President could exert enough influence to make Congressional input moot. Nevertheless, I am convinced that we must establish a clear and hopefully effectual, limitation on Presidential prerogative in this area, and retrieve our Constitutionally authorized "power to make war". The passage of House Joint Resolution 315 would be a step in that direction.

Mr. ZABLOCKI. I shall not try to have a colloquy upon what the impact is when Congress formally declares war. However, we were told in hearings last Congress that some very serious complications follow. That is why in recent decades wars were not declared; but we had undeclared wars because of the problems associated with declared wars.

PROBLEMS OF UNDECLARED WARS

Mr. LEGGETT. I think we found out that the problems associated with undeclared wars are far more complicated.

Mr. ZABLOCKI. That is the very reason we are now trying to find some legislative solution which can prevent wars of any kind or at least involvement in wars without the consultation and the approval of the Congress.

Your resolution is so brief that it intrigues me.

Mr. LEGGETT. I think you have to be simple to get involved in this area. Everything that I agree with, all of the objections to some of the resolutions that are on file with this committee, as far as I am concerned it ratifies far too much and gives away far too much and just opens the door for reinvolvements in Vietnam-type situations.

I am of the view that I am no total pacifist, but I think when you involve yourself in war, it should not be a simple extension of diplomacy, it ought to be a situation where you have got the virtual total commitment of the country.

We have seen the problems that have arisen where you don't have the total commitment as Mr. Matsunaga indicated. Even President Roosevelt had the time to come to Congress to get the declaration. I think if we are going to be involved in these slow wars of attrition in