This might at that point of decision have caused him to reconsider and not to send them at all. I view this as an important part of the bill, and I would appreciate any comment you would have.

Senator JAVITS. I thoroughly agree with you. In effect, we have adopted it, and I don't think the House and Senate, even on language, would have any problem on that score. That is the first thing that came out when we did get together in conference last year.

The other thing I would like to point out is you have in House Joint Resolution 2 a provision for special convening of the Congress. I like that very much and believe it should be included in the final product.

I think history is pushing us together, and I see great hope in the new House bill. I am very anxious to find a basis for agreement between us. I believe that your new bill makes it more possible, and what you say is an important factor.

Mr. ZABLOCKI. It is too early to comment on what may be done in conference, but it is indeed encouraging to note your conciliatory attitude, Senator.

Mr. Bingham.

PRESIDENT'S POWERS TO MAKE WAR ON HIS OWN

Mr. BINGHAM. Thank you very much.

Senator, I would like to compliment you most profoundly for your leadership in this field and for the eloquent way you have stated again and again your conviction that Congress must act and act in such a way that the President's powers to make war on his own are restrained effectively.

Having said that, I must confess that I have great reservations about the approach of your bill and the principal reservation I have is the requirement for a rigid 30-day period within which Congress must act affirmatively.

If such a bill as this requires that Congress act affirmatively to approve Presidential action initiating hostilities, then a deadline must be imposed. You cannot leave that open.

I see a lot of trouble and grief in the 30-day provision. First of all, the question may well arise in many cases, when does the 30-day period start. May I ask you this question: Assuming that bill had been in effect during the period of the Vietnam hostilities, when did our hostilities in Vietnam begin so as to start the 30-day period running?

Senator JAVITS. In my judgment the hostilities in Vietnam began when President Johnson deployed our forces in the combat situation to bail out the South Vietnamese which my best recollection is March 1965.

Mr. BINGHAM. You don't think that when President Kennedy sent 20,000 advisers to take part in the operations that that was the commencement?

Senator JAVITS. No. My initial reaction is that if I were President I would not define that as committing us to hostilities or imminent. danger of hostilities. What it might have committed us to was having Americans in the area who could become involved with the imminent threat of hostilities and we might have to come to their rescue. However, my mind is not closed on this evaluation. Perhaps the best bench

mark would be the days President Kennedy ordered U.S. advisers to accompany the ARVN units on combat patrols, with orders to shoot back if attacked.

WHEN DO HOSTILITIES BEGIN?

Mr. BINGHAM. What about President Johnson's ordering of American planes into action against North Vietnam. Was that not the beginning of hostilities?

Senator JAVITS. I don't remember now whether that preceded-
Mr. BINGHAM. That preceded.

Senator JAVITS. If it did precede, I would say yes. I think that you are making a very important point in that regard. I think that it is ascertainable when you are in hostilities or imminent danger of hostilities.

For example, take the Cuban crisis. I think when President Kennedy sent planes over Cuba to take pictures, we were not in hostilities or in imminent danger of hostilities, but when we insisted on inspecting ships, we may have been in imminent danger of hostilities, although it turned out that way because the Soviet ships were not stopped by us but stopped of their own accord.

I think historically there is enough of a line so you can fix the time. As you say yourself, Congressman, you have done a lot of thinking about this. You have a very interesting war powers bill of your own, and I am very gratified you are involved in this issue. I compliment you for participating in such an activity.

We have tried very hard in respect of the 30-day provision to develop some standards. I would be the first to affirm that by no means are we stripping the President of his constitutional powers in S. 440. There still remains great authority in the Office of the Presidency. For example, he can still deploy our forces generally at his discretion. Some have argued against this bill saying, for example, "Well, when the 7-day war occurred he moved the Navy closer to the theater of action." So what? He has a right to deploy them in international waters and put them in a position where they would be better postured if they are to be put into hostilities.

REQUIREMENT OF AFFIRMATIVE ACTION?

Mr. BINGHAM. Can we come back to the problem that is raised by the requirement of affirmative action? It seems to me the 30-day period also poses a very grave problem in that it may require the Congress to take action prematurely.

The President's involvement may appear at that time to be a relatively minor one, but once the Congress has acted in approval the President then has carte blanche to proceed. What I am getting at is I think the congressional action ought to be in the form of disapproval.

I have suggested, as you know, in my bill that it should be disapproval by either House, that as long as the President has the tacit approval of both Houses he can go ahead, but if either House disapproves, he loses authority.

That can take place any time-the first week-or it can take place a year later. The 30-day deadline means that the Congress must make up its mind. It may be at a time of enthusiasm; the country may not realize the implications of a particular struggle. Yet the Congress, once having acted, is committed.

Senator JAVITS. If you were right in your premise, you would be right in your argument, but I believe you are wrong in your premise because our bill permits the Congress to extend the President's authority to a certain date and under whatever conditions that the Congress may specify.

In addition, our bill permits orderly withdrawal if the Congress should refuse to give authority; the President is given the authority to disengage, but to disengage only, considering the security of our troops.

CONTINUING AFFIRMATIVE AUTHORITY OF THE CONGRESS

My answer to you is this: if the Congress believes we should not decide in 30 days, we don't have to decide in 30 days. We can decide in 6 months, but the continuing affirmative authority of the Congress would continue, which distinguishes it from the present situation.

As to the congressional veto, I don't believe that is the most effective route-but mind you, sir, I am not doctrinaire about this provision; my mind is open. I do have a question about both its practicality and its constitutionality.

The most important point is that this is a question of responsibility. We have got to act affirmatively if we are to assume some of the responsibility. We must say "It is our war, too." It is not just Lyndon Johnson's war. War is too important to be entrusted to any President any more than-a common aphorism-it is to be entrusted to a general.

The decision to go to war has to be made by the whole Congress and the President. There is no other way-that is the best we have to offer to represent the united sentiment of this country. I say do it, but make us take some of the responsibility.

You and I have got to vote "aye." We cannot escape the responsibility. That is the way it ought to be in so awful a decision as war. Mr. BINGHAM. I wish we could pursue this further, Mr. Chairman, but I don't want to take too much time.

Mr. ZABLOCKI. Governor Thomson?

PROVIDENT ACT OF CONGRESS

Mг. THOMSON. Senator, in your concluding remarks you said something to the effect that only by having Congress act will the decision. be provident. The Congress did act insofar as the Gulf of Tonkin resolution was concerned. Would you judge that to be a provident act?

Senator JAVITS. It was an act which was obviously improvident, but perhaps I mispoke myself. What I really feel, to express it precisely, is that if the Congress joins with the President affirmatively, then we will have the best judgment that this country can make. That too might be improvident, but at least it is the summation of the national will. That is what I am arguing. You are quite right to call me to account on that. I am not God; 535 of us are not. But we didn't take the Tonkin Gulf vote as a solemn responsibility and I believe we would do better when we know that the responsibility is ours in full measure. All I say is the collective judgment is the best we can summon to protect us against improvident decisions.

Mr. THOMSON. The President and the Congress both acted so far as Vietnam was concerned in the Gulf of Tonkin resolution OK, but in spite of that the conflict tore the country apart.

Senator JAVITS. I think again that is a perfectly proper point, but I will say this: Having been here at the time-and this is borne out, I think, by the experience of many-it was felt that we really did not have this responsibility. The President had acted. He put our forces into conflict. We had to back him up, and it really was not so much our judgment as it is his. He made the decision. If we have this responsibility by law-if you have to go back to your constituency, and so do I, and account for the fact that we kept the United States in war, I think it will impose a much heavier responsibility and more solemn consideration.

VALUE OF POWER IS THAT IT EXISTS AS A RIGHT

I will tell you this: The value of this power is not that it will be used adversely all the time. My guess is it won't. The value of it is that it exists and that it exists as a right.

There is no doubt about it, that we too will have the responsibility, and we will have to account for it to the electorate. I deeply feel-and the Senate agrees, a large majority of the Senate agrees that this is such a qualitative difficulty as to be well worth taking.

It is an advantage over where we stand now. The points you are making are absolutely sound and very valid to be considered in this situation, and I have considered them and given you my best judge

ment.

Mr. THOMSON. Senator, is the basic difference between your resolution and those proposed by the House that in the Senate resolution the President must act and in the House resolution the Congress must act? Senator JAVITS. I am sure I know what you are talking about. My answer would be yes, but I don't think I would express it that way. I would say in the Senate the President must persuade us or the situation must persuade us. In order for him to continue he must have a grant of authority. In the House he continues unless the authority is. cut off. I think the former is the more desirable for precisely the reason I stated.

The Senate approach breaks with previous practice; it forces us to bear an affirmative responsibility, which we would have to account for subsequently. I think that is good and necessary. I believe the Senate's stand is the better.

OVERCOMING PRESIDENTIAL VETO

Mr. THOMSON. Under the House version, any action you say would be under the threat of a Presidential veto requiring two-thirds vote? Senator JAVITS. That is right. It would be, and not just a threat. Mr. THOMSON. Would that be true of a declaration of war? Senator JAVITS. Yes, the President has to sign a declaration of war, if it took the usual form of a joint resolution. In practice, all our declarations of war have been pursuant to a Presidential request. Mr. THOMSON. He could veto that, also?

Senator JAVITS. He could, but as I said we have not declared war until the President requested it. That has been the practice of our history.

Mr. THOMSON. That is really the difference between your proposal

and the House version?

Senator JAVITS. I think that is true. I think in the House you let him go forward unless you stop him and in the Senate we say, "You do not have the authority to go forward unless we give it to you."

Incidentally, I think an important point in terms of your House is the jointure of interest here. We believe and our bill accepts the fact that both Houses are coequal in this matter, and they are. That is very important.

HOUSE ACTS FIRST ON APPROPRIATIONS

Mr. THOMSON. Is that a unique situation, Senator?

Senator JAVITS. Not at all. I have tried to put money on bills but I was struck down on the grounds that the House must act first on appropriations. So, you have that power. We have other powers; very important powers.

Mr. THOMSON. Thank you, Senator.

Mr. ZABLOCKI. Before calling on Mr. Wilson, the Chair would like to make a comment.

Senator Javits, we certainly appreciate the tribute you paid to the committee and particularly to the chairman. However, it is only proper that our esteemed colleague, the Honorable Dante Fascell, share the tribute because he was the principal sponsor of the amend

ments.

The sections that were added, 3 and 6, were in no small measure due to his advice and consultation. Therefore the record should show the great respect we have for him and give credit where credit is due.

Senator JAVITS. Mr. Chairman, I might add to that, as I stated Senator Stennis has made instrumental additions of great importance to our bill; and we are deeply indebted to Senator Eagleton for the specifications in this bill, and the questions of the automaticity of treaties, and any implied authority from appropriations bills, and so forth. It was a very creative job indeed.

Mr. ZABLOCKI. Mr. Wilson?

Mr. WILSON. What happens if no action is taken by the Congress in 30 days and then in 6 months Congress does decide that they I would like to withdraw?

Senator JAVITS. At the end of 30 days, under my bill, the President would no longer have legal authority to continue the engagement of our forces, except that he would have the authority to disengage them. Mr. WILSON. What if authority is granted and then in 6 months Congress changes its mind?

CONDITIONS ON GRANT OF AUTHORITY

Senator JAVITS. The grant of authority can be on conditions. We can write into the grant of authority any conditions we wish including monitoring what he does, more frequent reports, et cetera. We can put a date on it and put another date on it if we choose.

We can pull it back if we choose. By now the concept is—and it is still probably challengable but nonetheless seems to have persisted by usage what the Congress does can be undone by concurrent resolution.

So, the conditions of the grant could be written by the Congress in its judgment at the time it makes the grant of power.