ABLE AND ASTUTE CONSTITUTIONAL LAWYER Mr. BIESTER. Thank you, Mr. Chairman. I will not set us on the same running tour we got into yesterday, because of my questions at the time of the quorum call. I will be very, very brief. I just would like to welcome our colleague to the hearings. He is an able and astute constitutional lawyer. I also commend him on the clarity of his statement. I am wondering if it is assumed that in the congressional action. which takes place along the way here, under your plan would the Congress from time to time be able to set and reset the objectives and goals of the military action in which we are involved? Mr. DENNIS. Well, I think the Congress probably has the right to do that anyway. Of course, what I specifically provided for here is a reconsideration of what has been done, but I would think in the course of reconsidering what has been done that we could certainly have a wide-ranging discussion of the goals in arriving at our conclusion as to whether we arrive at an approval or a disapproval. Mr. BIESTER. But you don't see it as just simply yes or no, lack of giving even what the President may have done. Would you have a role in that in your plan? Mr. DENNIS. I would think so. I would think so. Possibly we could even to some degree I am just thinking out loud-regulate the extent of what is being done; but I am not quite so sure about that because I think perhaps there you may get into the President's role as the Commander in Chief. Mr. BIESTER. One last question, and that is that even under your plan, don't we finally hit the point at which there are troops committed under the command of the Commander in Chief, some prisoners have been taken and in which the forces deployed may be at some hazard with respect to their redeployment, and we run into the same kind of problem we ran into the last several years in the Vietnam war in which there was an assertion of implied authority to redeploy those troops in the safest and most rational way. SOME PROBLEMS INESCAPABLE Mr. DENNIS. Well, I think some difficulties here frankly are inescapable. What I have said is, supposing we pass a resolution now which says we disapprove this and the President has to stop, I have not tried to cut him off in the next 5 minutes. What I say is that under those circumstances, the President shall discontinue the action so taken by him and shall terminate any hostilities which may be in progress and shall withdraw, disengage, and redeploy the Armed Forces of the United States which may be involved just as expeditiously as may be possible, "having regard to, and consistent with, the safety of the Armed Forces of the United States, the necessary defense and protection of the United States, its territories and possessions, the safety of citizens and nationals of the United States who may be involved, and the reasonable safety and necessities, after due and reasonable notice, of allied or friendly nationals and troops." Now, I admit that leaves him a wide latitude, but I don't believe you can leave him anything else. I don't think you can say. "You have to do it in 24 hours or 10 days or 30 days." But it still is inescapable in this language, I think, that under these circumstances he has to do it, and he has to do it just as fast as he can, having regard to these considerations. Mr. ZABLOCKI. Mr. Fraser. Mr. FRASER. Thank you, Mr. Chairman. I will try to make this very brief. I have difficulty with your phrase "necessity." I can't believe that there has ever been a President who has ever committed troops to hostilities abroad who didn't feel there was a necessity, and I fear that you maybe opening up a constitutional loophole which may exist now. NECESSITIES BORN OF DIFFERENT CIRCUMSTANCES Let me pass from that though. You say in section 5 Mr. DENNIS. I would say just in passing, I might have in mind your missile crisis, for instance, which easily could be a necessity. Mr. FRASER. I think we could agree on that. Mr. DENNIS. Also, an emergency. Mr. FRASER. I think we could agree on necessities, but necessities are born of different circumstances. One necessity is to show our determination to the other side that we are not pansies or we are not weak. It is widely believed that that is why Pre dent Kennedy decided to go into Vietnam as far as he did, after the meeting with Khrushchev in Vienna. But you say, "At any time." Did you mean to extend the 90 days when you say, "At any time"? Mr. DENNIS. No. What I mean is that Mr. FRASER. If you act within the 90 days that you provide for in 3 and 4. Mr. DENNIS. What I mean is that "at any time" there has been a report. You could say, "If the Congress shall ever." Mr. FRASER. I don't see why, if you require periodic reports, you should not give the Congress the authority at any time to disapprove. Why limit it to 90 days? Mr. DENNIS. I would say this, Mr. Fraser. I think Congress could act. I think we probably now have the right to do this; but all the bill says is, not that you could not do it quicker if you wanted to, but you are required to do something about it every 6 months; and you must act within 90 days of the first report and within 30 days after subsequent reports. Mr. FRASER. Finally, you say, "By the enactment of the resolution." Now a bill clearly would require Presidential signature. Mr. DENNIS. That is probably right. CONCURRENT VS. JOINT RESOLUTION Mr. FRASER. Looking at the word "resolution" in conjunction with the bill, I would assume it has to be a joint resolution which also requires the Presidential signature-a concurrent resolution would not be sufficient. Do you intend that the President must sign this? Mr. DENNIS. I don't know whether I thought that completely through. I intended to leave it rather flexible to the Congress what they wanted to do, but I would think "resolution" is broad enough to cover your concurrent resolution if that was what the Congress decided was the method to take. Mr. FRASER. I would think that you would have to make that explicit or you would have difficulties. Mr. DENNIS. Well, I would have no particular quarrel with it; although I think if you say "resolution," that that includes any kind of a resolution within our prerogative. Mr. FRASER. I think it might have, except you say "bill or resolution." Mr. DENNIS. Well, bill or concurrent resolution or joint resolution. My only idea, really, was to let us determine at the time what is the best route. Mr. FRASER. I think you have in your draft, if I may say so, dealt with many of the difficulties we have seen in other drafts. I want to commend you for a good effort. Mr. DENNIS. Thank you. Mr. ZABLOCKI. Gargantuan effort. Thank you, Mr. Dennis. Mr. ZABLOCKI. Unfortunately, because of our running later than we thought and conflicts in his own schedule. Mr. Harrington will be unable to appear as scheduled. His statement will therefore follow as though read at this point. [The statement follows:] STATEMENT OF HON. MICHAEL HARRINGTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS Mr. HARRINGTON. Mr. Chairman, I wish to thank you for the opportunity to testify today on my war powers legislation-an issue which I regard as vitally important. During the last century, the United States has witnessed an unparalleled expansion of Presidential warmaking power. This expansion has now reached dangerous limits which could undermine the system of checks and balances underpinning our constitutional system of government. This history of the last 10 years offers striking evidence of the danger of increased Presidential power. We slipped into a war which no one wanted, and once in, found ourselves unable to get out, despite widespread public dissatisfaction and disillusionment of our course of action. FROM STRICT CONSTITUTIONAL VIEWPOINT From a strict constitutional viewpoint, I believe the various war powers proposals before this committee are both proper and justified. Article I, section 8 of the Constitution clearly vests the authority to initiate war in the Congress. The absence of extended debate over the war powers in the Constitutional Convention and the historical record of the next 150 years clearly attest as to where that authority properly belonged. However, since World War II, Congress power to initiate war has been severely eroded. The executive branch has pointed to changes in the world political situation, the emergence of the United States as 93-626-73-9 a world power and protector, the revolution in travel and communication, and the development of atomic weapons, as justifications for the increased power. The Congress, up to now, has accepted the President's explanations, and therefore must share the blame for any constitutional imbalances that have occurred. There was barely a word of protest when President Johnson asked for the Tonkin Gulf resolution. But I believe most Members of Congress now believe that a mistake was made that we have gone too far in delegating responsibility to the executive branch. One of the major political phenomenon of the last decade has been the simultaneous assumption of concentrated power by the President and the decentralization of that power within the executive branch. The Pentagon papers, and David Halberstam's excellent book, "The Best and the Brightest," both document the fact that not only the Congress lost control over the decision to go to war in Vietnam, but the President himself lost control over the bureaucracy. STRATEGIC DECISION MAKING DONE BY TECHNICIANS This distrubs me as much, if not more, than the Congress-President debate. In recent years, strategic decisionmaking has been turned over to the technicians, and the record shows the bureaucratic momentum has overwhelmed both Presidents Kennedy and Johnson. If these men, who are both generally acclaimed to be strong Presidents lost control over the decisionmaking process, a real danger exists that future Presidents will be equally unable to control events. The answer to this problem lies not in reform of the executive branch, but in a return of authority to the Congress. The two branches of Government respond to separate sets of pressures. The bureaucratic momentum which can overwhelm a President is not so strongly felt in the Congress, where power is diffused and the Members are more attuned to local interests, rather than to the interests of the departments and agencies. There are legitimate circumstances in which Executive commitment of the Armed Forces are valid. But it is necessary to balance this authority with congressional authority. The legislation I have introduced established this balance. At this point, I will briefly outline the provisions of the bill: Section I: Provides that this bill governs the use of Armed Forces "in the absence of a declaration of war by the Congress." In this bill we are dealing with undeclared wars-wars which have come to be called Presidential wars because of the constitutional process of obtaining congressional authorization has been shortcircuited. FULFILLING INTENT OF FRAMERS OF CONSTITUTION Section II: It sets out the purpose of the bill to fulfill-not to alter, amend or adjust-the intent of the framers of the Constitution to insure that the collective judgment of both Congress and the President is brought to bear in decisions involving the introduction of Armed Forces into hostilities. Section III: It defines the emergency conditions in which, in the absence of a declaration of a war by Congress, the Armed Forces of the United States may be introduced into hostilities or in situations where eminent involvement in hostilities is indicated by the circumstances. The conditions are: 1. To repel an armed attack on the U.S.A., its territories and possessions; to take necessary and appropriate retaliation in the event of such an attack and forestall the threat of such an attack. 2. To repel an immediate attack upon the Armed Forces of the U.S.A. located outside the United States or forestall such an attack. 3. To protect the evacuation of U.S. citizens from foreign lands. These conditions give the President a change to act forcefully against any aggressor and provide a deterrent for any potential aggressor, but they do not give him a carte blanche. PURSUANT TO SPECIFIC STATUTORY AUTHORIZATION Subsection 4 of section 3 sets forth the criteria by which the Congress can "pursuant to specific statutory authorization" give the President advance authority to take emergency action. In codifying this authority, the Congress is exercising its own constitutional power "to make all laws which shall be necessary and proper for carrying into execution ** *all other power vested by this Constitution in the Government of the United States, or in any other department of officer thereof." It was judged important to specify that the authority to use Armed Forces is not to be inferred from any provision of the law including appropriations, unless such authority is explicitly provided. This includes treaties past, present or future unless legislation is implemented to authorize the use of Armed Forces. These requirements provide first for an exchange of knowledge between the Congress and the President; second, this subsection provides against "area resolutions" such as the controversial Tonkin Gulf Resolution. The subsection also requires specific statutory authorization for the assignment of members of the Armed Forces to participate in combat related to military activities of the regular or irregular forces of any foreign country-this clause provides against the gradual escalation of war without congressional consent by the introduction of military advisers such as in Vietnam. Section IV: Specifies that the President shall report promptly to the Congress in the event of an outbreak of hostilities. This section provides against the gradual escalation of war without congressional consent, also the hampering of action by Congress due to lack of information and above all it makes the President accountable for his actions. Sections V and VI: The 30-day authorization period-these sections resolve the modern dilemma of reconciling the need for speedy and emergency action by the President in this age of instantaneous communication and intercontinental ballistic missiles with the urgent necessity for Congress to exercise its constitutional mandate. This 30-day period can be shortened or lengthened by the Congress. INSURING PRIORITY CONSIDERATION BY CONGRESS Section VII: Establishes strict procedures to insure priority congressional action to extend or foreshorten the 30-day period as pro |