Congress has participated very actively. We have appropriated over $100 billion for South Vietnam. But the basic difference now is that we are in the process of disengagement. We can disengage. Any President can disengage from any conflict with the kind of power he has under the Constitution.

Mr. EAGLETON. Where there was light, there is now darkness.

Mr. DOLE. It is getting later.

Mr. EAGLETON. I thought we had established that insofar as the presence of troops in Southeast Asia today is concerned, the Gulf of Tonkin resolution was no authority or authorization for them being there.

I had already checked that point off, because that was the answer the Senator had given me earlier.

Do I understand that, after a few minutes have expired, the Senator contends that the presence of troops in Southeast Asia today is in some way buttressed on the Gulf of Tonkin resolution in part, a little bit?

Mr. DOLE. The Senator is talking about numbers and I am discussing Vietnamization and disengagement.

Mr. EAGLETON. I am just talking about American bodies in Vietnam, soldiers, airmen, and so forth-400,000-plus. I want to know under what authority they are there. I thought we had gotten it down to authority under the Commander in Chief plus the continuing appropriation process. I thought we had eliminated the Gulf of Tonkin resolution, that we had eliminated SEATO, and Eisenhower was never in the picture.

Mr. DOLE. In fairness we must share the burden in this matter. There was a commitment by President Eisenhower with respect to material aid. When he left office in 1961 there were 600 or 700 Americans in Vietnam. None of them had been killed but they were there.

The aid programs go back to President Truman's time. This is not the fault of one party as opposed to the righteousness of the other.

But to be candid with the Senator from Missouri, the presence of American troops there now is justified in large part by the constitutional power of the President and the acts of Congress in appropriating money; but underlying and underscoring those points has been the Gulf of Tonkin resolution. President Johnson did no. senu 45,000 men there until after the Gulf of Tonkin resolution was approved on August 10, 1964.

Mr. EAGLETON. Again, I was with the Senator from Kansas until he threw in the phrase "underlying and underscoring" in reference to the Gulf of Tonkin resolution. If the Gulf of Tonkin resolution is repealed, and it is eliminated by being repealed, then, is there still remaining some authority for the presence of troops in South Vietnam?

Mr. DOLE. Oh, yes.

Mr. EAGLETON. And that authority is the power of the Commander in Chief coupled with the appropriation process?

Mr. DOLE. There are a number of bases. The SEATO Treaty, the pledges made by three or four Presidents, now, the appropriations made by Congress, plus the constitutional power which any President has and that President still has. Mr. EAGLETON. If I may, I would like to ask a few final questions on the Gulf of Tonkin resolution. Is there any basic difference between what the Senator from Kansas seeks to do by amendment 715, and that which is sought to be accomplished by Concurrent Resolution 42?

Mr. DOLE. The intent is the same.

Mr. EAGLETON. The Senator earlier in this exchange referred to a letter from Mr. H. G. Torbert, Jr., Acting Assistant Secretary for Congressional Relations, in March 1970.

Mr. DOLE. Yes, March 12.

Mr. EAGLETON. March 12. I would like to call the attention of the Senator to a letter dated December 4, 1969, by the same Mr. Torbert.

Mr. DOLE. That would be prior to March 12.

Mr. EAGLETON. That would be an earlier letter, yes. In that letter he said, speaking for the State Department on the Gulf of Tonkin resolution :

"The existence of the Tonkin Gulf Resolution also has consequences for Southeast Asia which go beyond the war in Viet-Nam. The question of its termination must be considered carefully in terms of our other international obligations in the area, particularly the Southeast Asia Collective Defense Treaty which the Tonkin Gulf Resolution specifically cites.

He states:

"We would oppose passage of this resolution."

My first question is, Why did Mr. Torbert and the State Department change their minds, in the Senator's judgment, between December 4, 1969, and March 12, 1970?

Mr. DOLE. I have been around 10 years, and have never been able to fully understand why the State Department changes its mind.

Mr. EAGLETON. But it goes without saying they had a change of heart insofar as the utilitarian value is concerned, as expressed in these two letters.

Mr. DOLE. Basically there was a recognition when the Vietnamization program was implemented by President Nixon that it was successful and that we were on our way out of Vietnam. It is generally believed that we have passed the road of no return insofar as further escalation is concerned. I cannot, however, answer the question as to why someone in the State Department changed his mind

Mr. EAGLETON. Could the Senator speculate on what Mr. Torbert meant by this sentence in his December 4 letter, the first letter that opposed repeal of the Gulf of Tonkin resolution?

"The existence of the Gulf of Tonkin Resolution also has consequences for Southeast Asia which go beyond the war in Vietnam."

Can the Senator interpret that for me? Does that convey any message to the Senator?

Mr. DOLE. Yes.

Mr. EAGLETON. Would the Senator care to elucidate for my benefit what message that conveys?

Mr. DOLE. I do not speak for anyone in the Department of State-not that I do not have great respect for the Department of State and the person who may have written that letter

Mr. EAGLETON. Mr. H. G. Torbert, Jr., the same man who wrote the letter of March 12.

Mr. DOLE. I believe he was accurately stating a real fear that if the Gulf of Tonkin resolution were repealed then it might create some apprehension or fear on the part of other free countries in Southeast Asia that we were pulling out prematurely, pulling the rug out from under our friends and allies. But again, I cannot answer the question. I do not know why that particular language was used but would guess there was a feeling in some way it would undermine our policy in Southeast Asia.

Mr. EAGLETON. Mr. President, I am about finished, to the delight of the Senator from Arkansas.

Mr. FULBRIGHT. It is very interesting but I did not realize the Senator was going to be quite so long. I do have a speech to make.

Mr. EAGLETON. I thank the Senator.

When this exchange is boiled down to its distilled essence, what may have occurred in the past insofar. as what previous Presidents, previous Senates, and previous Secretaries of State used as their authority for going into and staying in Vietnam, the fact remains that today, President Nixon, our President on this date, who is the Commander in Chief of 400,000 troops in Southeast Asia, does not rely on the Gulf of Tonkin resolution. The State Department said it can be repealed without its objection; and at least the Senator from Kansas does not take much solace in either SEATO or other provisions. It boils down to the power as Commander in Chief coupled with the appropriation process in this matter. Mr. DOLE. The Senator is talking about the presence there now? Mr. EAGLETON. Yes; the presence there today.

Mr. DOLE. Yes.

Mr. EAGLETON. Would that Commander in Chief authority, followed up on an annual basis by appropriations, be enough for him to send additional troops to South Vietnam?

Mr. DOLE. Perhaps as we have discussed in the Senate, it would depend on the purpose for which they might be sent. If it is to expand the war it might be questionable. Perhaps he can do it, as President Truman did in Korea.

Mr. EAGLETON. My question is now, predicated on the repeal of the Gulf of Tonkin resolution.

Mr. DOLE. Yes. We have established the fact that the President does have rather broad powers as Commander in Chief. It has been the subject of debate for several days on the floor of the Senate. It has been argued by the proponents of the CooperChurch amendment that the President can go back into Cambodia, order air strikes in Cambodia send troops into Cambodia, and clean out sanctuaries in Cambodia; so if it were necessary, God forbid, that we send more troops to South Vietnam that it could be done. We are not talking about President Nixon, but rather the office of the President and the occupant of the office of the President.

Mr. EAGLETON. And this would be done under his authority as Commander in Chief?

Mr. DOLE. Yes; that and other related items the Senator from Kansas has mentioned two or three times.

Mr. EAGLETON. But not the Gulf of Tonkin resolution; we are repealing that. Mr. DOLE. Is the Senator from Missouri for repeal?

Mr. EAGLETON. I am going to vote for repeal.

Mr. DOLE That resolves one question I had.

Mr. EAGLETON. Would that authority be broad enough for the Commander in Chief, without the Gulf of Tonkin resolution to initiate bombing raids against China?

Mr. DOLE. Under what circumstances?

Mr. EAGLETON. Under circumstances wherein the President thought it would be propitious to strike out certain productive areas of Red China wherein they were making war machinery, armaments, et cetera, that were finding themselves in the hands of the North Vietnamese or the Vietcong.

Mr. DOLE. Perhaps the question is a little speculative. Unless there were some imminent danger to American forces or some imminent danger to American nationals or some imminent danger to American property, then I certainly would think any President would first consult with the Congress and obtain some congressional approval. But again, the junior Senator from Kansas, having been in this body only 17 months, does not have the precise answer to that very difficult question.

Mr. EAGLETON. But the Senator predicates his answer on the assumption that the President would consult with Congress before he made that decision.

Mr. DOLE. Yes; contrary to what President Nixon did in Cambodia or what President Truman did in Korea, it would be my suggestion, at least, that they call someone.

Mr. EAGLETON. Would this be a suggestion or would it be required under the Commander in Chief authority that they consult with Congress?

Mr. DOLE. It is not required.

Mr. EAGLETON. It is not required. So it is the thought of the Senator that as Commander in Chief, with no Gulf of Tonkin resolution, the President could have an air strike in Red China?

Mr. DOLE. That is right. I assume so. I am not advocating it, as the Senator from Missouri knows.

Mr. EAGLETON. But the Commander in Chief authority is, in its phraseology and in its historical implications, broad enough to embrace that of action unilaterally by the President without consultation with Congress, even though consultation might be had if he had time?

Mr. DOLE. That is right. Before World War II we sent troops into Greenland and Iceland and committed other warlike acts before becoming involved directly in World War II and before Congress declared war.

Again I would refer, and surely the learned Senator from Missouri has read it, to the Harvard Law Review article, 81 Howard Law Review 1771, previously referred to with reference to the powers and rights of the President from the time of George Washington down to the present time. There have been actions taken by the Commander in Chief-yes, without consultation with the Congress. In some cases the President reported to Congress afterward. In some cases he notified Congress in advance.

But there have been cases, and they are recited in great detail, whether it was Polk who went into Mexico, or Jefferson who got involved in the Bay of Tripoli. There are numerous examples of where the President of the United States exercised his right as Commander in Chief. These acts were generally followed by some voice of dissent from Congress. In fact, George Washington had the first confrontation with Congress when he obtained the treaty or proclamation of neutrality with France and England. As I understand it, some Members of Congress did not agree with it and thought it went beyond his constitutional powers.

So, if we want to speculate, we can assume the Commander in Chief's powers are quite broad; but the Junior Senator from Kansas does not want to state on the floor that any President should bomb any place without consulting Congress. Mr. EAGLETON. But the Senator does state that the powers are broad enough to permit him to act, and that such consultation with Congress comes after the fact, by courtesy of the President, after the decision has been made or after the die has been cast?

Mr. DOLE. The invasion of Korea is an historical precedent, to answer the Senator from Missouri, but that action taken by the President marked a clear departure from precedent in exercising the powers of Commander in Chief. Commanders in Chief had been rather timid up to that time, but President Truman was not a timid man. He acted when an emergency required him to act. He acted properly. And since that time, more and more power has been vested in the Commander in Chief.

Mr. EAGLETON. Well, then, the Commander in Chief power for the President to act by himself is broad enough to permit the bombing of China, the invasion of Korea, or any unilateral military decision the President sees fit to make, being the Commander in Chief?

Mr. DOLE. Will the Senator repeat the first part of the question?

Mr. EAGLETON. The Commander in Chief power, as the Senator views it, is broad enough to support what President Truman did in Korea, and a unilateral decision to invade or move into South Korea, his premise being assistance of Syngman Rhee, or is broad enough to have deployed troops to South Vietnam, bomb North Vietnam, or bomb anyplace in the world, if he is promising it on his authority as Commander in Chief?

Mr. DOLE. I would, in a general sense agree, but that is the view only of a junior Member of this body. It is not the President's view, probably. It may not be another President's view. It may not be the view of the Senator from Arkansas. But it depends on circumstances. Are Americans in danger? I would assume that any President who failed to act if Americans were in danger would be subject to impeachment by the Congress.

Mr. EAGLETON. I thank the Senator from Arkansas and the Senator from Kansas.

I would like to make a 1-minute comment, if I may, by way of a wrap-up of this rather prolonged exchange. I think it has served one purpose. It has pointed out that, at least in the view of the principal author of the Gulf of Tonkin repealer, the Commander in Chief authority of the President of the United States is so broad, so all-encompassing, as to permit any unilateral military act by the President, almost anywhere in the world, with no previous consultation with the Congress.

I point out to the Senate the danger of that assumption, the danger of that interpretation of the Constitution, because when and if we repeal the Gulf of Tonkin resolution, as I presume the Senate is about to do, to be concurred in by the House, and when that legislative authorization of the war has been removed from the statute books-and it was an authorization for this war and it was relied on by President Johnson, and its phraseology is broad enough to permit a war, even to permit an expanded war, as I read it-we then find the war being conducted, under the theory of the Senator from Kansas, solely and exclusively under the Commander in Chief authority, buttressed on occasion by the appropriations process. I consider this to be a very dangerous constitutional precedent. I thank the Senator from Arkansas for yielding to me.

Mr. DOLE. Mr. President, will the Senator from Arkansas yield to me briefly? Mr. FULBRIGHT. I will yield to the Senator from Kansas for a comment; yes. Mr. DOLE. First of all, I appreciate the opportunity to discuss what is a very vital area of this debate with the junior Senator from Missouri. His wrap-up does not reflect the views of the junior Senator from Kansas completely. It does occur to the junior Senator from Kansas that, of course, the President has rather vast powers as Commander in Chief, and I could read the Senator the statement made by the junior Senator from Arkansas when the Gulf of Tonkin resolution was being considered by this body on August 7, 1964. But we are not in Vietnam just because of the appropriation process and the authority of the President as Commander in Chief. As the Senator intimated, there are certain other factors involved. So when the Senator characterizes my assessment, it is only the assessment of the junior Senator from Missouri and it is only the assessment of the junior Senator from Kansas, and not the assessment of anyone in the administration or of any President or of anyone in the State Department.

I thank the Senator from Arkansas for yielding.

Mr. GOLDWATER. Mr. President, will the Senator from Arkansas yield for an observation? I tried to get the Senator to yield, and he did not feel he could. Mr. FULBRIGHT. Of course, I am going to make some remarks and then I shall be delighted to yield to the Senator from Arizona, if he wishes me to.

Mr. GOLDWATER. I think it would be more appropriate at this time.

Mr. FULBRIGHT. How long does the Senator wish?

Mr. GOLDWATER. Maybe 2 minutes.

Mr. FULBRIGHT. Mr. President, I yield for that purpose.

Mr. GOLDWATER. Mr. President, I have been more and more impressed, throughout this lengthy debate, with the need for a different approach to the two prob-lems we face than we are making here.

I do not think there is any question about the power of the President as Commander in Chief. I agree with the language of Prof. Edgar E. Robinson, of Stanford University, that:

"The President's power as Commander-in-Chief of the Armed Forces are of greater significance than all the other powers prescribed in the Constitution." I have detected, during the course of this debate, in the mail I have received, and at talks I have made around this country, that the American people really do not understand the limited action that we as Congress can take in the area of war, or the extreme action the President can take in the area of war.

I have come to the conclusion, Mr. President, particularly after having listened to this very interesting discussion today, that we would be better off discussing two constitutional amendments: one to better describe and prescribe the powers of Congress in the area of warmaking, and a second to describe and prescribe, if we have to, the powers of the President; because until we do either, I think we are going to go on with a very misunderstood idea of what the Constitution gives to both Congress and the President as powers. I would hope, Mr. President, that when we have finished voting on the Cooper-Church amendment and the McGovern-Hatfield amendment, this body can get down to the serious business of discussing-I do not say writing, but discussing-the need for a constitutional amendment.

Personally, I think we have to have one or two, if we are going to better understand what we were trying to understand today and what we have been trying to understand through 6 weeks of discussion on the Cooper-Church amendment.

With those words, Mr. President, I thank my distinguished friend from Arkansas for yielding.

Mr. GURNEY. Mr. President, will the Senator yield very briefly for an observation?

Mr. FULBRIGHT. I yield.

Mr. GURNEY. I, too, was present during the colloquy between the junior Senator from Missouri and the junior Senator from Kansas-a very interesting and, I thought, very illuminating discussion of the whole subject of the powers of the Commander in Chief.

My own impression, though, was that the last statement by the junior Senator from Missouri of his impression of the position of the junior Senator from Kansas was not accurate, and I take exception to it.

I did not gain any impression from the colloquy that the President of the United States at any time, any place, anywhere has the power or the right to inject American troops or to launch this country into war. It is my impression from what the Senator from Kansas said that the powers of the Commander in Chief are very broad, and that under certain facts and circumstances, when, indeed, American lives and the national security are in danger, the President does have broad powers to react, and I would go back to just one example-perhaps one of the very latest examples-which I think bears out what the Senator from Kansas is talking about. That was during the Cuban missile crisis, when President Kennedy declared a quarantine around Cuba and against the Russians, and mobilized the Air Force, the Army, and the Navy as a matter of fact, my State of Florida was like an armed camp, with airplanes flying over day and night and troops moving in. We were actually on the threshold of war.

I think what President Kennedy did was exactly right. In this day and time, when we have to move quickly, he had to move quickly, too, in that instance, to protect the national security of this country.

That is what I think the Senator from Kansas was talking about, that the Commander in Chief does have broad powers in matters of emergency such as this to do the things that are necessary for the national security of this country.

I thank the Senator from Arkansas.