Now in that case in order to stop the President you would then have had to repeal that authorization. Mr. BINGHAM. That is right. Mr. FRASER. Which is subject to veto. Mr. BINGHAM. Right. Mr. FRASER. And subject to action by both Houses. Mr. BINGHAM. Right. Mr. FRASER. It seems to me that every President is going to make sure they have that authorization and they are going to try to generate the public attitudes that will in effect force the Congress to enact it. PRESERVING PRINCIPLE OF CONGRESSIONAL AUTHORITY Mr. BINGHAM. Well, that may be true, but at least then you have preserved the principle that the Congress has a role in these decisions. If you go one of the other routes, either you are doing nothing to restrain the President, or you are calling specifically for an approval which would then stand unless repealed. Mr. FRASER. Well, I will conclude by saying that I guess I am getting conservative in my old age. But I have seen so many things come around full circle and hit you in the back that I am not at this point really persuaded that we should do anything. We may make it worse. Thank you, Mr. Chairman. Mr. DU PONT. Mr. Chairman, I think the discussion that has just been heard between Mr. Bingham and Mr. Fraser points up very clearly the difficulty of drafting a detailed piece of legislation. Somehow circumstance will always throw up at you a situation you have not clearly envisaged. I would say that while I am not totally agreeing with Mr. Fraser that we ought to do nothing, that this discussion illustrates perhaps the wisdom of trying to draft the broadest possible kind of legislation without getting into specifics. Mr. ZABLOCKI. I might add the more testimony I hear, the more I feel that House Joint Resolution 1 was the better approach and that probably section 3 and section 6 should be eliminated. I do believe that the Congress should assert itself and request that its obligations in the war powers area be recognized. Further, that the President should consult with Congress; and should a commitment of U.S. Forces be made, that such a commitment be reported. That is as far as the chairman would care to go. Certainly we do not want to hamstring the President in the defense of our country or our citizens. Therefore, in the original version, we tried to avoid defining the war powers and to codify the war powers of the Congress or the President. If I may just ask one further question, and I asked this of the Senator yesterday. In section 5 of your bill, the congressional priority provision, you recall Senator Javits said he was concerned about an improvident decision-the improvident decision, for example, some critics claim the Congress made in passing the Tonkin Gulf resolution. Under emotional stress, unfortunately, Congress may react by making such decisions. DOES NOT BYPASS NORMAL PROCEDURES Under your section 5 the disapproval is sponsored or cosponsored by one-third of the Members of the House of which it originally had been considered reported to the floor of such House no later than 1 day following its introduction unless the Members, of course, of such House otherwise determined by yeas or nays. Does this not really bypass the process of normal procedures which would include committee hearings, a report or other deliberations before a vote would be called for-deliberations which would hopefully help us avoid improvident decisions by either House? I fully recall the Senator's reply, but I wonder what your view is. Mr. BINGHAM. Mr. Chairman, if I may call attention to the last paragraph of my prepared statement, I indicated there that I was prepared in my revised bill to omit section 5. I have come to the conclusion that, at least as far as the House is concerned, such a provision is not necessary, and it does raise questions which you have raised before very persuasively. So I propose in my revised version of the bill to omit that section. Mr. ZABLOCKI. Any further questions? Mr. BINGHAM. Thank you, Mr. Chairman. STATEMENT OF HON. SPARK M. MATSUNAGA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII Mr. MATSUNAGA. Thank you, Mr. Chairman. Mr. ZABLOCKI. Welcome, Congressman Matsunaga. I want to express my appreciation for your past efforts and cooperation in sharing your wisdom and your views in this area with our subcommittee members and our colleagues on the floor in the past. I might say personally I am somewhat surprised you picked up the Senate bill, but I am sure you can defend it in testimony this morning. Mr. MATSUNAGA. Thank you very much, Mr. Chairman and members of the subcommittee, for providing me this opportunity to express my views on H.R. 2053, a bill I have introduced relating to the war powers of Congress. This is a matter which I know has been the subject of hearings on several occasions by this distinguished subcommittee, and I commend you on your demonstrated interest, for at stake is the most important issue faced by any nation, the fateful issue of peace or war. H.R. 2053, as the chairman has observed, is virtually identical to legislation which passed the Senate last year by the overwhelming margin of 68 to 16. It starts from the premise that the President must obtain prior congressional approval before committing American Armed Forces in any hostilities. However, the President would not be required to seek prior congressional approval EXCEPTIONS TO NEED OF SEEKING PRIOR CONGRESSIONAL APPROVAL 1. In the event of an invasion of the United States or its territories, or to prevent an imminent invasion; 2. To protect our Armed Forces overseas; 3. To rescue Americans from dangerous situations in other countries; or 4. Pursuant to a specific grant of authority by Congress to cover the particular situation in which the forces are to be used. Whatever troops are committed without prior congressional approval, they must be withdrawn within 30 days, unless Congress specifically authorizes an extension or is physically unable to meet, or the President certifies that a further period is needed for a safe disengagement of our troops. H.R. 2053 also provides for speedy congressional consideration, during the 30-day period, of resolutions to authorize the continued use of troops in any hostilities. Regardless of the position we may have taken on our recent involvement in Indochina, we cannot deny that that war caused grave divisiveness among our own people. Certainly one of the major underlying causes for this divisiveness was the lack of a declaration of war by that governmental body which is closest to the people and which has the sole constitutional authority to declare war, the Congress of the United States. DEFINITE PROCEDURES NEEDED TO PREVENT FUTURE VIETNAMS If we have learned but one lesson from the tragedy in Vietnam, I believe it is that we need definite, unmistakable procedures to prevent future undeclared wars. "No more Vietnams" should be our objective in setting up such procedures. The time for Congress to take this action and to reassert its constitutional role is long overdue. Five times in the past 12 years, Presidents have mounted major military interventions without prior consultation with the Congress: The Bay of Pigs, the intervention in the Dominican Republic, the bombing of North Vietnam, the incursion into Cambodia and then Laos. Whatever our individual beliefs may be relative to the merits of these unilateral actions by the Executive, I believe we can all agree that Congress should have played a more significant role in the decision to mount each of these actions. What was it that the framers of our Constitution had in mind when they gave to the Congress the exclusive power to declare war? To declare war is to decide to go to war, to commit this Nation to active participation in hostilities. It was intended that after the Congress had decided to depart from the normal state of affairs and declare war, and only after such declaration, the President, as Commander in Chief of our armed forces, was to exercise the power to conduct and direct the war. That this was the intent is clearly spelled out in the writings of one of the strongest advocates of executive power, Alexander Hamilton. In Federalist No. 69 he wrote that the President's authority as Commander in Chief "would amount to nothing more than the Supreme Command and direction of the military and naval forces, as First General and Admiral of the Confederacy." CONGRESS SOLE REPOSITORY OF POWER TO DECLARE WAR Distinguished historians have assembled evidence on this matter which points inescapably to the conclusion that the Constitution envisions the Congress as the sole and exclusive repository of the power both to declare war and to judge its propriety. Of course, there are those who contend that such a view of the warmaking powers of Congress is hopelessly archaic. We are told that we live in a world of instantaneous communication where momen tous decisions need to be made in less time than it takes to complete a quorum call. Perhaps so. But there are two compelling responses to that argument: First, there is no historic basis for such an argument. There has never been a case of hostilities which posed such a demanding national emergency as to require the use of the warmaking powers by the President, without authority of Congress. As sudden and unexpected as the attack on Pearl Harbor was on December 7, 1941, we went to war only after its declaration by Congress. Second, if we have in mind an unprecedented, unspeakable surprise attack, one which the President could not have reasonably anticipated, H.R. 2053 would provide for such a contingency quite adequately. Under its provisions, in a dire emergency, the President need not seek the approval of Congress to repel an attack or to save American lives abroad; he can act first and then forthwith request the needed authority from Congress. His hands are not tied at the crucial moment. He need only to convince the Congress, within 30 days after he acts, that he was right in acting unilaterally. I submit that that is not an unreasonable duty to impose on the Executive. Mr. Chairman and members of the subcommittee, it is my firm belief that the proposed War Powers Act would, if enacted, serve the cause of peace by reestablishing the rightful constitutional role of the Congress in the warmaking process. CONGRESSIONAL ACQUIESENCE ON USURPATION OF POWERS As Members of that separate and independent branch of government known as the Congress of the United States, we have to a degree been guilty of acquiescing to the usurpation of congressional powers by the Executive. Perhaps now is the time when we should take heed of the words of Justice Jackson who once wrote, and I quote: We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. By acting quickly and favorably on H.R. 2053 and similar legislation, we will prove to the American people that we do not intend to abandon our constitutionally granted powers and responsibilities. Thank you, Mr. Chairman, for your attention. Mr. ZABLOCKI. Thank you, Congressman Matsunaga, for defining your position on your bill. However, there are problems involved in H.R. 2053 as I pointed out yesterday to a similar section of the Senate bill S. 440 section 3, and it is this section which contains the conditions of circumstances. You refer to these conditions of circumstances in your closing statement on page 4, a period when there is a dire emergency, a crucial moment. Of course the judgment of one man enters into that determination so you really don't avoid a war. DEPLOYING U.S. FORCES WITHOUT DECLARATION OF WAR Under these conditions of circumstances on which the Armed Forces may be deployed without a declaration of war, on the one hand appear to bind the President under your bill so inflexibly by such rules that he will not be able to act expeditiously in future situations which cannot be envisioned now, as the Congressman from Minnesota has pointed out in the colloquy with Mr. Bingham. On the other hand, the President will actually use the legislation by your own definition to provide an explanation, to provide himself with an excuse to act when justification might otherwise be lacking, since the ultimate determination of what the words of the statute will mean will be his, whether it is a dire emergency or a crucial moment. Certainly your legislation provides that Congress can undo his action within 30 days but would that be too late? Another question comes to mind. Do you believe that had your bill, H.R. 2053, been law at the time of the Tonkin Gulf incident Congress would not have taken the action we did-action which we now call unfortunate. Nonetheless, it was the sentiment in Congress at that time and certainly I presume-even if such legislation were on the statute books the same action that occurred would have been taken by both Houses of Congress. Mr. MATSUNAGA. I tend to agree with the chairman that even had the statute been on the books at the time of the Tonkin incident the same action would have been taken by the Congress in passing the so-called Tonkin resolution and authorizing the President to do as he deemed necessary in order to defend American lives and property. However, the fact that the President in acting unilaterally would need to come back to the Congress within 30 days, and fully justify this action to win the approval of Congress, would tend definitely to force the President to take a much more careful look before leaping into any hostilities. EXECUTIVE CLAIMS NO NEED FOR CONGRESSIONAL AUTHORIZATION Considering the present situation, where even after the Tonkin resolution was repealed the Executive insisted that it did not even need such authorization from the Congress to continue the hostilities in Vietnam, this proposal would be a vast improvement. At least we will restore to the Congress the right to make decisions whether the engagement in hostilities initiated under so-called dire emergencies ought to continue or not. So while I can foresee, as the chairman foresees, the same probable reaction on the part of the Congress, in the event of an attack, such as that represented to us with the Tonkin resolution, I believe a law which would require the President to come back to the Congress within 30 days for authority to continue military involvement, would be a vast improvement over what we have today. Mr. ZABLOCKI. There is no doubt in my mind that we all are striving for legislation which would prevent future undeclared wars. Could I have your comment: your version does not provide for consultation as House Joint Resolution 1 of the last Congress and House Joint Resolution 2 that is now before us does provide in section 4, namely that the President when acting pursuant to the provisions of section 3 would seek appropriate consultation with the Congress before introducing the Armed Forces. This provisions calls for the President to consult with Congress before he acts. Your proposal is that Congress would have to act after he took action. Don't you think there is a likelihood that undeclared wars would be prevented if he consulted with the Congress before the |