The burden of proof is, therefore, on the President. He must demonstrate: (1) that the emergency action he has taken is legitimate and in accordance with the provisions of our bill; and (2) that continuation of such action beyond 30 days is warranted.

The President's case can be heard and then voted on by either House, if one-third of the membership cosponsors a bill or joint resolution. If this occurs, under the priority provisions, the question then must be voted on no later than 1 day after its introduction. Each House would then decide by a simple majority vote whether or not to approve the President's request.

The choice of 30 days has been criticized by some as too short and by others as too long. Admittedly it is an arbitrary choice but both these arguments can be answered by the same procedural explanation.

The passage of our bill will provide a constant warning not to give away the fundamental power of Congress even in a period of crisis. When Members of Congress are statutorily forced to uphold their responsibility, I expect that they will be very leery of either delegating it away too soon or allowing it to be abused by improper Presidential action.

If, therefore, Congress feels a longer period is needed to consider the President's request it can extend the authorization period for as long as it wants without ever losing control of the decision to declare offensive war. If, on the other hand, the President has clearly and blatantly abused his emergency authority, Congress may act to stop him immediately, even before the 30-day period is completed.

I concede that there may be other enforcement methods that could be used. For example, some have suggested a qualitative approach which would require the defining of circumstances or conditions whereby the emergency action would be recognized as changing in nature from defensive to offensive. I believe, however, that the straightforward quantitative approach avoids the subjectivity of other methods and would be easier to administer. Most importantly, the 30-day provision protects Congress' war powers by allowing Congress alone to make the decision whether or not to enter our Nation into a state of war and by placing the burden on the President to prove either: (1) that we are not already at war, or (2) that offensive war is warranted.

APPLICABILITY OF S. 440 TO INDOCHINA CONFLICT

Mr. Chairman, no discussion of war powers legislation would be complete if we failed to consider the single issue that has caused us to rethink so many of the fundamental principles upon which our Nation was founded-the Vietnam war. Controversy over that war continues to occupy us even though a cease-fire agreement has been signed and our military forces and POW's are coming home.

If all goes well, our active military participation in Vietnam will end on March 28. But many, myself included, are seriously concerned that the President could again involve us in that conflict without the consent of Congress.

Two weeks ago Senator Javits and I issued a joint statement clarifying the applicability of our bill. We stated that the provisions of S. 440 would apply in full to any reintroduction of forces to Indochina after our current military involvement is terminated.

This interpertative statement was necessary because we had originally excluded the ongoing conflict in Vietnam by stating in our bill that the provisions,

shall not apply to hostilities in which the armed forces of the United States are involved on the effective date of the act.

We had originally questioned the legality of enacting legislation which would apply retroactively and impact upon the Commander in Chief's current interpretation of his own powers, however mistaken we believed that interpretation to be. In addition, we did not believe that the constitutional issue would ever be resolved if we subjected our bill to the political debate of a very emotional contemporary problem.

Some have already introduced legislation to prohibit the expenditure of funds for a reintroduction of military forces into Indochina in the absence of congressional authorization. While I would support these measures because I agree with the policy considerations that motivated them, I do not feel that they address the more fundamental question: Does the President have the constitutional right to reenter hostilities in Indochina or anywhere else without the express consent of Congress? These measures depend exclusively upon Congress' power of the purse to enforce its will on the question of Indochina. The power to appropriate is, of course, our strongest ace in the hole in resisting encroachments upon our legitimate powers. But this power should be used only as a last resort-it cannot be seen as the primary means of reasserting congressional war powers.

The legislation we propose would involve Congress in a positive manner at the outset of any emergency action and before any other hostility the President may feel our Nation should engage in. If the President refused to abide by the statutorily imposed procedure we propose today, he would have broken the law. If such a tragic breakdown of our system of laws should occur, we would then use our power of the purse as a last resort to stop him.

MUST SUBORDINATE PERSONAL VIEWS

As difficult as it may be, we must subordinate our personal views on the question of Vietnam to the more fundamental question of our constitutional responsibilities. As a policy matter, I have opposed our involvement in Vietnam and, now that a cease-fire agreement has been signed, I will work as one Member of Congress to assure that we do not become reinvolved. But I am willing to subject my personal view on this matter to the deliberation and collective judgment of this entire body. I would expect that those who differ with me would be willing to do likewise.

The issue that we discuss today goes far beyond our personal views. We propose to assure that each member of this body is held accountable for making the awesome decisions that could lead our country to

war.

It is clear that Presidential decisions shaped the course of the war in Indochina and that an indifferent Congress provided little or no restraint on executive actions. Some politicians will continue to prefer these unclear guidelines, for scapegoats are often popular in politics and the assumption of responsibility often is not.

The Founding Fathers sought to create a process by which important decisions would be reached only after thorough deliberation. They fully expected that the responsibility for committing the Nation to war would be shared-and that Congress would authorize this important commitment. It is time that we return to the spirit, as well as to the letter, of the system they worked so hard to create.

Mr. Chairman, I ask for an insertion from the Congressional Record of June 23, 1970, which is a record of colloquy I had with Senator Dole of Kansas, be inserted in the record at this point.

In addition, Mr. Chairman, I ask that the speech that I gave on the floor of the Senate on January 18, 1973, this year, when the War Powers Act was reintroduced, also be inserted in the record. This covers evolution of the Senate bill.

Mr. ZABLOCKI. Without objection, it is so ordered. [The material follows.]

Appendix A

[From the Congressional Record, June 23, 1970]

Mr. FULBRIGHT. Well, later, in a different part of his statement, the Senator from New Hampshire does refer to the fact, which appears a little later on down on the same page, and I will read it:

"Then one by one, we have had all of these amendments. And I do not doubt that they are worthy amendments. Like Brutus, they are all honorable, but I do so wish that the distinguished Senator from Arkansas who undertook to rebuke and to look down his nose at the poor young Senator from Kansas who dared to offer an amendment on the floor of this body that had not been offered and considered by the Committee on Foreign Relations, were here. As a matter of fact, it had been considered by the great, sanctified Committee on Foreign Relations."

Well, if I looked down my nose, I was not aware of it, but, anyway, the Senator from Kansas is a very eloquent orator, and I noticed he got a number of laughs, which is most unusual. If anyone has talent enough to generate a laugh in times like this, he deserves a "chromo," as my mother used to say, and the Senator from Kansas has brought a talent to this body unequaled by anybody. But, to set the record straight, I was not complaining that this matter had not had a hearing. It had had a hearing. What I was complaining about was that the Senator had chosen to ignore this body's own constituted committee. That is not comparable to the situation of offering an amendment on the floor to an appropriations or any other bill that has not had a hearing by anybody at all. That is quite a different matter. At least that I think should be kept straight. Mr. President, I understand that the distinguished Senator from Missouri (Mr. EAGLETON) had, by prearrangement, an understanding with the Senator from Kansas, to whom he wished to put certain questions. I ask unanimous consent that I may yield to the Senator from Missouri without losing my right to the floor, for that purpose.

The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered.

The Senator from Missouri.

Mr. EAGLETON. I thank the distinguished Senator from Arkansas for his courtesy. I would like to propound certain questions to the Senator from Kansas, the author and principal sponsor of amendment No. 715.

Mr. STENNIS. Mr. President, will the Senator yield to me for a question? Mr. EAGLETON. I am pleased to yield.

Mr. STENNIS. Mr. President, I do not object to this procedure, but I came here really to hear the Senator from Arkansas. May I ask him when he expects to resume the floor?

Mr. EAGLETON. Mr. President, I hope the Senator from Mississippi will remain for a few minutes to hear some pearls of wisdom from me.

Mr. STENNIS. I had another, mandatory meeting, and I really should be there, but I will remain for now.

Mr. EAGLETON. Mr. President, I think it would be of interest for the Senate to discover what might follow in the wake of the repeal of the Gulf of Tonkin resolution, which is the gravamen of the Dole Amendment No. 715. Perhaps the best way to get at that would be to propound some questions to the principal author of the amendment (Mr. Dole). If he would be so kind as to respond to these questions, then perhaps we might see a little better down the road where we would be if the amendment were adopted and subsequently enacted by the House and later signed by the President.

First, I would like to ask, in the opinion of the Senator from Kansas, under what authority troops are presently stationed or found in Southeast Asia.

Mr. DOLE. Let me respond with the knowledge gained in the short time I have been in the Senate. The Senator from Missouri and I arrived at the same time.

On July 1, 1964, there were approximately 17,000 troops in Vietnam. At the end of August 1964 there were 18,000 troops in South Vietnam. By June of 1965 there were some 52,000 troops in Vietnam.

It is my understanding that the Johnson administration and the Kennedy administration based their commitment in Vietnam on a number of factors: First, the Southeast Asia Treaty, which was almost unanimously approved by the Senate; second, pledges made of promised support by three successive Presidents of the United States; third, an assistance program that was granted annually beginning in 1965 by a bipartisan majority in both Houses of Congress; fourth, the declaration which we joined our SEATO and ANZUS allied in making; fifth, our ministerial council meetings in 1964 and 1965; and finally, of course, the Gulf of Tonkin resolution 'itself, which was approved August 10, 1964, by a combined vote of the House of Representatives and the Senate of 514 to 2.

Mr. EAGLETON. I thank the Senator for his recitation of how the Johnson and Kennedy administrations, especially the Johnson administration, may have viewed their authorization to go into Southeast Asia; but my question to the Senator from Kansas, as author of amendment 715, was under what authority is the present President, in the month of June 1970, found in Southeast Asia? What does he consider to be the present authority for the presence of America troops in South Vietnam?

Mr. DOLE. I would suggest that the representation just made would indicate, of course, that they were there in January of 1969, when President Nixon took office. I considered and voted for the Gulf of Tonkin resolution as a Member of the other body and am aware of that resolution. I frankly did not consider it necessary at that time, to become more involved in South Vietnam. It may have been necessary at that time, as the Senator from Arkansas and others pointed out, to give some direction and support to the President of the United States.

That was during a time of escalation, I might say to the Senator from Missouri. The Gulf of Tonkin resolution was an instrument of escalation. It was sort of the "get in" resolution passed by Congress. Now we are in the process of getting out. We are not in the process of escalation at this time, so I do not know quite how to respond to the question of the Senator from Missouri, except to say that now we are now deescalating. We are bringing troops home. The troop level has been reduced by 115,500 men. Another 50,000 reduction has been announced and will be carried out by October 15; and another 100,000 by next May 1. Now we are in a process of disengagement; we are not in a process, of escalation. I would point out, the com

mittee report which accompanied the resolution to the Senate floor in August of 1964, contained the following statement:

"Senate Joint Resolution 189 is patterned quite closely upon precedents afforded by similar resolutions; the Formosa resolution of 1955, the Middle East resolution of 1957, and the Cuba resolution of 1962.

"The phrasing in section 2, 'in accordance with the obligations under the Southeast Asia Collective Defense Treaty' comprehends the understanding in that treaty that the U.S. response in the context of article IV (1) is confined to Communist aggression. It should also be pointed out that U.S. assist. ance, as comprehended by section 2, will be furnished only on request and only to a signatory or a state covered by the protocol to the SEATO Treaty. The protocol states are Laos, Cambodia, and South Vietnam."

So I say that the Tonkin Gulf resolution was only one in a series of justifications or reasons for commitment in South Vietnam, and that as to its repeal, as stated on March 12, 1970, in a letter from H. D. Torbert, Jr., Acting Assistant Secretary of State for Congressional Relations, addressed to the Honorable J. William Fulbright, chairman of the Committee on Foreign Relations:

"We neither advocate nor oppose congressional action-with reference to the Tonkin Gulf resolution."

The point, I might say, is that this administration has not relied upon the Gulf of Tonkin resolution and does not now rely upon the Gulf of Tonkin resolution. I assume the Senator from Missouri favors repeal of the Gulf of Tonkin resolution, as does the Senator from Kansas. There is no opposition to its repeal from the administration. They are not relying on the Gulf of Tonkin resolution. They have not relied on the Gulf of Tonkin resolution. There has been no escalation by this administration. There has been no escalation in the number of troops nor in the bombing.

That is my response.

Mr. FULBRIGHT. Mr. President, could I interject, just to clarify, this inquiry? The Senator says they do not rely on it. What do they rely on?

Mr. DOLE. I am not certain, but I believe they rely primarily on the fact that, on January 20, 1969, there were 550,000 troops in Southeast Asia, and the President is charged with their protection in the exercise of his authority as Commander in Chief.

I believe the President relies on the facts, and the facts have been cited, and the President is in the process of disengagement, not as rapidly as some would like, but I believe he is relying on the fact that we were there, that when he took the oath of office American troops were there, and that he had a duty as Commander in Chief, which we have discussed at some length in the past several weeks, not only to protect American troops but, in accordance with a plan announced last May, to pursue the success of the Vietnamization program and to bring those troops home.

Mr. EAGLETON. Mr. President, I am not quite certain I fathom what the Senator is saying. If I am doing him an injustice, I am sure he will correct me, but I take it he is saying that one item we can definitely eliminate is the Gulf of Tonkin resolution, that the President of the United States under no circumstances and under no set of facts says he is relying on the Gulf of Tonkin resolution at all; is that correct?

Mr. DOLE. From what I understand of the administration's position, I think that is correct.

Mr. EAGLETON. There are 400.000-plus troops now in South Vietnam, in various stages of demobilization, deescalation, or whatever term is applicable, but there are 400,000-plus troops there. I take it they are there under some authority, either constitutional, statutory, or by treaty. Is that correct?

Mr. DOLE. That is right. Basically it is constitutional authority-the same constitutional authority President Kennedy had, President Truman had, President Eisenhower had, and President Johnson had.

Mr. GOLDWATER. Mr. President, will the Senator yield?

Mr. DOLE. The Senator from Missouri has the floor. Will he yield to the Senator from Arizona?

Mr. EAGLETON. Mr. President, I would like to finish this series of interrogations first, if I may.

May we eliminate, by the process of elimination, some of the others? We have eliminated the Gulf of Tonkin resolution. That is not our authorization for being there.