STATEMENT OF HON. JOHN DELLENBACK OF OREGON

Mr. Chairman, I commend you and the other members of the subcommittee for acting so promptly in this session to hold hearings once again on the war powers issue. I'm pleased to have the opportunity to submit a statement in behalf of H.R. 454, which I introduced, and to urge your serious consideration of this measure and other proposed legislation dealing with this issue.

There is a good deal of discussion in this country today about the division of authority between the Congress and the executive. I don't wish to open for debate here the question of whether the executive branch has assumed a disproportionate share of power in the affairs of Government, on either side of which issue there is a good argument to be made. In the realm of warmaking, however, the fact of the matter is that during the terms of three consecutive Presidents American forces were involved in conflict in Vietnam for some 10 years largely on the basis of simple Presidential authority. By no means do I intend to equate the actions of those three Presidents-indeed their actions were quite different-but the fact remains of what occurred, and there are important lessons there to be learned.

Such a situation as that through which we have all so recently suffered results, in my opinion, from a subversion of the original intent of those who framed the Constitution. I am convinced that, with the exception of repelling sudden attacks on the United States or its citizens or acting in other emergency situations, our forefathers intended to vest full war powers in the Congress. Clearly the President's power is to serve as Commander in Chief of the Nation's armed forces once those forces are committed to war, but he does not bear the responsibility of committing them to war. This responsibility falls squarely on the Congress.

Congress has exercised its power to declare war on only five different occasions: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. U.S. forces have been involved in hostilities without an official declaration of war on more than 150 occasions in our country's history. Prior to this century, however, such incursions were of brief duration and relatively uncostly. What is most alarming is the fact that with no congressional declaration of war, we've spent some 80,000 lives and $180 billion dollars on two very real and prolonged wars in the 20th century. It is unthinkable. to me that in our country and under our system of government the decision to sacrifice so much should fall upon any one man alone, however able and whoever he may be.

H.R. 454, which is virtually the same as the bill which overwhelmingly passed the Senate during the last session of Congress, represents a deliberate proposal that the Congress speak clearly on the critical issue of the powers vested respectively by the Constitution in the legislative branch and in the executive branch so far as the commitment of and the control over the Armed Forces of the Nation are concerned.

The bill begins by defining those circumstances under which the President, without prior congressional approval, may introduce forces into hostilities or situations where imminent involvement in hostilities is clearly indicated. The four specific conditions outlined are what may be termed emergency situations calling for defensive action and fall in line with the intention of the Constitution's authors to allow the President to deal with emergency situations. They are:

(1) To repel an armed attack upon the United States and its possessions;

(2) To repel an armed attack against U.S. forces located outside of the United States;

(3) To protect American citizens who are being evacuated from a situation of danger; and

(4) In compliance with specific statutory authorizations for the conduct of military operations.

Should the President determine that any of the above situations exists and decide to employ U.S. forces, he would then be required promptly to report to Congress the extent of such involvement and the circumstances under which it was initiated. Moreover, he would be required periodically to apprise Congress of the status of such military activities.

Section 5 prohibits the President from continuing military hostilities under the bill's permitted conditions beyond 30 days unless Congress passes specific enabling legislation. Provision is made, of course, to expedite the passage of such legislation.

What the 30-day limit does is place the burden of proof on the President who must convince Congress that military action by U.S. forces is both justified and essential to the country's welfare. Should a President be contemplating the introduction of forces into hostilities, he would have to stop and consider whether he would be able to accomplish his objectives within 30 days or whether he would be able to persuade Congress that a more sustained involvement is warranted. In other words, the bill will make it as difficult as possible for the Executive to place us in a position where we are too far into war to get out and will prevent the President from finding himself in the lonely position of conducting a war without the support of the people's representatives in the Congress.

Opponents of this legislation may argue that Congress is going too far by attempting to impose restrictions on the Executive in in this matter, They may argue that today's fast pace and instant communications may require immediate and unhindered action by the Commander in Chief to protect our interests. Let me point out that this bill in no way prohibits the President from acting quickly to protect the country or its citizens, but rather provides him a good deal of flexibility in emergency situations and the means to obtain congressional support when necessary.

A prime concern of the Congress should be to make certain that it is not easy to go to war, and if that takes imposing restrictions, then I am all for it. Vietnam has made it all too painfully clear that once we have substantially committed American men, money, and equipment to the defense of another nation, extrication from the conflict becomes extremely difficult. Congress cannot effectively act after the fact, nor should it be expected to. The time for Congress to act is when the original decision is made and in joint participation with the President.

I thank the subcommittee for your attention to this matter.

STATEMENT OF HON. WM. L. DICKINSON OF ALABAMA

Mr. Chairman, it is a privilege to appear before the Subcommittee on National Security Policy and Scientific Developments to speak in behalf of legislation to define the authority of the President to intervene abroad or to make war without the express consent of Congress. I know there will be many constitutional experts who will testify before you on the technical aspects of this legislation, and I will not pretend to have their knowledge of the issue. Nevertheless, as a Representative of a segment of the American people who have a stake in the outcome of these hearings, I would like to go on record here today in favor of legislation which I introduced on this subject.

My bill, House Joint Resolution 250, would assure that any action taken by the President to commit any armed force of the United States to armed conflict with hostile forces outside the United States would be reported in detail to the Congress, which would then have 30 days to concur or dissent. Should the Congress dissent, the President would have 30 days in which to disengage all forces so committed. Certainly, the President must be left with the power to repel sudden attacks upon the United States without congressional authorization for obvious reasons, and my bill would leave the President with that power. However, the Congress would then be able to review the President's action and determine the propriety of the action.

Many of my constituents have written me during the last 8 years both praising and condemning our actions in Vietnam. However, in most cases, the opening line of the correspondence went something like this: "I do not think we should have gotten involved in the first place ***." I have said the same thing myself many times, and I am sure many, if not all, of you have heard or said it on numerous occasions too. The lesson has been a long and bitter one, but hopefully we have learned from it. The American people have a right to be protected from another involvement of this nature, and it is up to the Congress, and specifically the gentlemen on this committee, to come up with legislation which will give us that protection.

We, as Members of Congress, have accepted the responsibility to speak for our constitutents and see that their views are taken into account when decisions of national impact are made. Therefore, let's stop shirking our duty in this area of vast importance to our people and pass legislation to assert our responsibility in making war policy. Thank you, Mr. Chairman.

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STATEMENT OF HON. DON FUQUA OF FLORIDA

Mr. Chairman, members of the subcommittee, I welcome this opportunity to testify in support of measures which would define the authority of the President to intervene abroad or to make war without the express consent of Congress. I have been a cosponsor of this legislation in the past two Congresses and I feel that it is most important if we are to responsibly carry out the constitutional powers we are given over matters of war and peace.

Essentially, the legislation recognizes that war is too momentous and too awesome an undertaking to be decided by one individual or one individual and his closet personal advisers. Certainly, the framers of the American Constitution were nearly unanimous in insisting that their own people, through the Congress, assume such an awesome right. We are confronted with, many assert, a constitutional crisis. I wonder, however, if we are not witnessing the interplay of the legislative and executive branches under a living and dynamic Constitution. I applaud the efforts of this subcommittee and other of my colleagues in asserting the constitutional powers over war and peace which are rightly those of the Congress. We have been cited a list of nearly 200 U.S. military hostilities abroad without a declaration of war. Accordingly, the Congress has in too many instances stood idly by while the executive, with dubious constitutional grounds, has taken this country to and retained it in war. The introduction of the various war powers bills reaches to the very core of the division of powers between the legislative and the executive and I am pleased that the issue has finally been joined.

Senator John Stennis, a great American and strong supporter of this Nation's efforts in meeting our commitments to foreign nations, is a primary sponsor of this legislation and addressed the need for its

enactment:

The last decade has taught us . . . that this country must never again go to war without the full moral sanction of the American people. The only practical way for all parts of the nation to participate in such a decision is through the Congress.

I feel strongly that the original constitutional distribution of powers must be restored by statute in order to insure congressional participation in warmaking policy. In a superb article by Prof. Raoul Berger of the Harvard University Law School, it was demonstrated that the power to declare war was lodged in Congress as a guard against being "hurried" into war, so that no single man can involve us in such distress. The recent extrication of this country from the tragic conflict in Vietnam illustrates that it is indeed easier to go to war than it is to get out of one. Certainly, one purpose of the legislation we are now considering would be to make war more difficult to attain than is peace. There is little question but that the Founding Fathers invested the President with the power to defend against sudden attack upon the United States. Certainly, I recognize and support the President's authority to react to such emergencies as it is essential to the defense of

our people. The various legislative proposals provide for such exigencies and in no way inhibit the President from asserting his powers as Commander in Chief.

The legislation that I have introduced enumerates the war powers of the Congress contained in section 8 of article I of the Constitution which states that Congress shall have the power to declare war; to raise and support armies; to provide and maintain a navy; to make rules for the Government and regulation of the Armed Forces; to provide for calling forth the militia for organizing, arming, and disciplining the militia; and to make all laws necessary and proper for executing the foregoing powers. The Framers of the Constitution were most explicit in assuring the Congress of a concurring role in any measure that would commit the Nation to war. My bill specifically limits the power of the President to commit the Armed Forces of the United States to action in any armed conflict with hostile forces outside the United States to the period of war declared by Congress or the period of a national emergency declared by Congress if such commitment should last over 30 days. The President would have full authority to take whatever action he felt was necessary to repel sudden attack or to respond to a threat to national security. The President would, however, be required to report to Congress within 72 hours and explain in detail his reasons for, and his evaluation with respect to the effect and duration of, such commitment. If the Congress, within 30 calendar days after receiving such report, shall not by concurrent resolution approve or otherwise act on said report, such commitment shall immediately terminate, and the President, as soon as practicable but not later than 30 calendar days after such termination, shall disengage all forces so committed.

Since the introduction of my bill during the 92d Congress, I have had the opportunity to review the very thoughtful remarks of my colleague and friend, Dante Fascell, which appeared in the pages of Foreign Policy, a well respected journal. Congressman Fascell has raised the question of whether the 30-day period in which the Congress must consider the President's request for congressional authorization of his commitment of U.S. Armed Forces, would result in the Congress proceeding in a hasty and rubberstamp fashion. Certainly, if such a time period would result in a rubberstamp approval of the President's actions, I would prefer a different approach. The Congress must have adequate opportunity to carefully scrutinize the President's evaluation of the situation and be able to independently analyze the threat or lack thereof. Accordingly, there is indeed a great need to provide a structure for influencing the President before he acts to commit American troops overseas in hostile combat. The debate on the exact mechanism for this consultation is exhaustive. It serves, however, to highlight the seriousness of the constitutional question confronting us. The most important consideration, however, is to insure that the exercise of the war powers is a matter for collective judgment, wisdom and responsibility. Certainly, no altering of the Constitution is necessary. It is simply incumbent upon the Congress to enact such legislation as is necessary and proper to the discharge of its war declaring power and the President's Commander in Chief responsibilities. Again, I thank the subcommittee for this opportunity to present my testimony and I respectfully encourage you to report out an effective war power bill so that the Congress can resume its rightful place as coequals in the determinations over matters of war and peace.