68 to 16 majority. This bill, which was jointly authored by Senator Javits, Senator Stennis, and me, represents more than 3 years of concerted effort and careful deliberation. I believe that our bill has great merit, and I hope that this committee will give it close consideration.

CONSTITUTIONAL RESPONSIBILITIES OF CONGRESS AND THE PRESIDENT

I would like initially to establish two basic points which I believe must be reflected in any responsible attempt to legislate in this area. First, Congress alone was given the responsibility to decide on the crucial questions of war and peace. The record is clear that those in attendance at the Constitutional Convention were surprised and dismayed at the suggestion that the President be given power to make decisions which might result in offensive military action. As one delegate commented, he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

The two Founders who are considered to be ideological adversaries on the question of congressional versus Executive power, James Madison and Alexander Hamilton, were in accord on the war powers issue. In the Federalist Papers, Madison stated:

*** The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not the cause of declaring war ***.

Alexander Hamilton was equally emphatic when he declared that it was the "exclusive province of Congress, when the Nation is at peace, to change that state into a state of war *** it belongs to Congress only, to go to war."

Second, the Commander in Chief was given the authority to "repel sudden attacks." The initial draft of the Constitution provided that the legislature should "make war." But this phrase was changed because of a concern that that wording did not, in the words of Madison and Gerry, "leave to the executive the power to repel sudden attacks." The expression "make war" was then changed to "declare war."

As we now seek the legislative formula that will best help us to fulfill the intent of the founders, we do so with the perspective of almost 200 years of experience in working with the Constitution. This is to our advantage.

But the exigencies of modern warfare are far beyond the imagination of those who drafted our fundamental law. Today, the Commander in Chief can move whole divisions half-way across the globe in a matter of hours *** complex military alliances seem to commit us far beyond our own borders *** and, perhaps most importantly, we can destroy ourselves and the rest of the world at the press of a button. To clarify the respective roles of Congress and the President in this environment is no easy task.

CODIFIED DELINEATION OF POWERS NEEDED

During most of our history, the legislative and executive branches were able to operate within the gray area that separates their respective war powers with no clarifying legislation. This was possible

because both sides pursued their obligations by exercising mutual restraint and good faith. This is no longer the case. Congressional apathy and Presidential aggressiveness have eroded the partnership in decisionmaking that the founders had originally intended. Our challenge today is to carefully circumscribe that discretion while still permitting enough flexibility to insure the national security.

Assuming that the provisions of the legislation we propose will be carried out in good faith-and we should assume nothing less in a nation of laws-we must, in my opinion, carefully define and codify the President's emergency powers to eliminate, to the maximum extent possible, his use of discretionary judgment. To do this we will have to avoid the loopholes that White House lawyers have so frequently found in other legislation. But we must also recognize that the biggest loophole of all occurs when we use phrases such as "in the judgment of the President" in lieu of our own definitions.

Some have argued that the ccdification of powers may have the unintended effect of giving away too much power. I believe that the contrary is true. By carefully defining these powers we not only limit them, we also permit ourselves to assess the President's implementing action against a very specific benchmark citation.

The best testimony that codification is the most feasible approach to the delineation of emergency powers is found in an examination of the provisions we have included in the Senate bill. After literally hundreds of drafting changes, I am convinced that we have considered all contingencies and that the fine line between Presidential flexibility and accountability to Congress has been found.

DESCRIPTION OF EMERGENCY PROVISIONS

We have allowed three situations where the President may take unilateral emergency action without prior consultation with Congress. Following is a brief description of these provisions.

The first emergency provision allows the Commander in Chief to: Repel an armed attack upon the United States, its territories and possessions; to take necessary and appropriate retaliatory actions in the event of such an attack; and to forestall the direct and imminent threat of such an attack.

There were two controversial aspects involved in delineating the Commander in Chief's authority to repel attacks upon the United States. First, it was necessary to grant him the right to "forestall the direct and imminent threat" of an attack. While it is obvious that these words grant to the President a degree of judgment and discretion, we had to concede that this authority is inherent in the act of repelling an attack. It has been recognized as such both by the Founders and by subsequent judicial opinion. Justice Storey, for one, gave judicial support to this concept when he stated in Martin v. Mott:

The power to provide for repelling invasions includes the power to provide against the attempt and danger of invasion as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil.

The granting of a degree of discretion in forestalling an attack, however, is carefully circumscribed in our bill. For instance, the threat which triggers Presidential action must be "direct and imminent." The President's judgment is even further subjected to congressional scrutiny by the additional requirement to report to Congress at the

earliest possible time and by the 30-day provision, which I will discuss later.

It was then necessary to deal with the most significant change in military warfare in history-the introduction of the atomic bomb. Today that weapon has forced us to consider contingencies that were beyond the wildest dreams of Thomas Jefferson and Alexander Hamilton. We must literally concern ourselves with the future of the world.

We have thus far managed to avoid a nuclear holocaust by depending upon universal acceptance of the policy of mutual deterrence. Our first emergency provision maintains the integrity of that policy by allowing the President to take "necessary and appropriate retaliatory actions." The words which condition this delegation of power are, of course, "necessary and appropriate."

HOLDING THE PRESIDENT LEGALLY AND POLITICALLY ACCOUNTABLE

The question of whether to expressly prohibit the President from initiating a preemptive nuclear attack was debated at some length. It was finally decided that, in the final analysis, all any legislation can expect to achieve is to hold the President legally and politically accountable for his actions. The consequences that would follow a firststrike nuclear attack by the United States would make the question of political and legal responsibility moot.

The second emergency provision allows the President to.

Repel an armed attack against the Armed Forces of the United States located outside of the United States, its territories and possessions, and to forestall the direct and imminent threat of such an attack.

This provision is, in large part, self-explanatory. The Commander in Chief obviously has the right and duty to protect American forces who are attacked while legally deployed in a foreign country. Again, we have permitted the President what we consider to be his inherent right to forestall a direct and imminent threat of attack on those forces.

In this case, however, we do not delegate the right to retaliate for such an attack. If the President feels that an attack on U.S. forces is of such a nature as to warrant retaliation, he must come to Congress for that authority.

The third emergency provision concerns the rescuing of American citizens who may be threatened while in a foreign country. The provision reads as follows.

to protect while evacuating citizens and nationals of the United States, as rapidly as possible, from (A) any situation on the high seas involving a direct and imminent threat of the lives of such citizens and nationals, or (B) any country in which such citizens and nationals are present with the express or tacit consent of the government of such country and are being subjected to a direct and imminent threat to their lives, either sponsored by such government or beyond the power of such government to control; but the President shall make every effort to terminate such a threat without using the Armed Forces of the United States, and shall, where possible, obtain the consent of the government of such country before using the Armed Forces of the United States to protect citizens and nationals of the United States being evaculated from such country

The tightly worded language of this provision is designed to emphasize that the President has authority only to rescue endangered American citizens. He may not use the circumstance of their en

dangered position to pursue a policy objective over and above their safe evacuation. Even before the President can take action under this provision he must ascertain that the government of the country in question is either incapable of protecting Americans or is itself presenting a threat to them.

EXPANDING RESCUE OPERATION INTO INVASION

Obviously, the most recent instance of a President expanding a rescue operation into an invasion was President Johnson's action during the Dominican Republic crisis in 1965. It should be emphasized that the policy considerations that motivated President Johnson may have been correct. They were, however, legally questionable since Congress was excluded from the decisionmaking process.

I believe that the careful drawing of emergency authority will, in the first instance, effectively curtail the President's usurpation of the rcle of Congress. We sometimes become overly concerned with the possibility of "tying the President's hands," and at the same time ignore the fact that the President now routinely preempts Congress own efforts to fulfill its warmaking responsibilities. The emergency powers we have delegated in the Senate bill will allow the President to respond expeditiously in an emergency while assuring that the important policy decision-whether or not to enter war-remains with Congress.

OTHER SITUATIONS REQUIRE SPECIFIC AUTHORIZATION

Beyond the codification of the President's emergency power, the Senate bill then considers the process by which Congress can delegate further authority to wage war in the more classic-offensive rather than defensive-sense of that word. This authority, according to our bill, can only be given as the result of a specific statutory authorization. But we have gone beyond the simple statement that statutory authorization is required by stating that such authorization cannot be inferred from any other legislative action. Such action must include a specific authorization granted by both Houses of Congress. For this reason, treaties are exempted as legal authority for introducing forces into hostile situations.

It should not be necessary before this committee to consider this exemption at length. Since treaties do not require the approval of the House of Representatives, they could not possibly be used as authorization to conduct war. The founders clearly assigned that decision to both Houses of Congress.

We have also categorically stated that appropriations measures cannot imply congressional authorization to conduct war. If this principle were accepted, the President could theoretically wage war with impunity while confidently challenging each House to attempt to muster a two-thirds majority to stop him. Such a situation is not only extremely dangerous but, in effect, it turns our carefully devised system of checks and balances on its head.

The provisions I have just discussed-which are all under the section of our bill entitled "Emergency Use of the Armed Forces"-are, in my opinion, the most important part of the bill. These provisions represent the up-front delineation of the respective powers of Congress

and the President. I consider such a delineation of powers to be the indispensable foundation for any measure of this type. If these provisions are respected, no further enforcement mechanism would be required.

THE 30-DAY PROVISION

No matter how tightly we circumscribe the Commander in Chief's emergency role, however, we should not satisfy ourselves that that role would never be abused. Even if Presidents executed the provisions of the war powers bill in good faith, it would still be possible for them to use the discretion then retained as Commander in Chief to move our Nation from a defensive conflict to an offensive one. Whether this occurred inadvertently or not, Congress must possess the legislative mechanism that would require it to protect its own. prerogatives.

Congress alone must decide whether we will enter an offensive war. And Congress alone must have the means to stop a President when he moves beyond the strictly defensive powers he derives from the Constitution.

Some have argued that the power of the purse would, in itself, be sufficient to protect Congress' right to declare war. In other words, if the President entered an offensive war without the consent of Congress, we could then cut off funds for that war and thus impose our will.

Acceptance of this argument would seriously distort the founder's intention. We cannot subject our exclusive responsibility to a Presidential veto and then be put into the position of attempting to override that veto to stop an illegal war. If we accept this premise, we will have compromised our most solemn responsibility.

The framers of the Constitution were aware that by giving specific and residual powers to the Congress and a somewhat undefined charter to the President, they had created a system of concurrent authority. They were fully aware that by doing so, they had sowed the seeds for possible conflict. How this conflict-if it occurred-should be resolved was also clear to them. Compromise would be sought at all costs but if negotiations proved fruitless, overriding control would remain with the Congress.

If the conflict centered over an action already begun, the Congress would not be helpless in the face of a fait accompli. Again, it was Hamilton who wrote:

The legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decisions.

MUST IMPOSE THE WILL OF CONGRESS

To impose the will of Congress, therefore, we have chosen to limit the President's emergency powers in a quantitative manner by requiring congressional approval within 30 days if he wishes to continue his action. If such approval is not forthcoming, then the emergency action must be terminated automatically-the only exception being that the President could certify in writing that "unavoidable military necessity" to protect our forces requires continued action to bring about a "prompt disengagement."