STATEMENT OF HON. TOM RAILSBACK OF ILLINOIS

Mr. Chairman, members of the subcommittee, although the peace treaty for the Vietnam War has been signed, debate still continues in the Congress over the respective war-making powers of the executive and legislative branches of Government. Numerous bills have been introduced which seek to clarify the role of the Congress and the President in the event of military hostilities in the absence of a declared war. I commend the subcommittee for holding these hearings, and I thank you for providing me with this opportunity to submit my views on the authority of the President to intervene abroad or to make war without the express consent of the Congress.

Since the beginning of this century-and most dramatically since World War II-the decision to involve American forces in hostilities abroad has been concentrated increasingly in the executive branch of Government. Under the past six Presidents, it has become more common for the executive branch to commit Armed Forces of the United States to foreign lands without congressional approval. Korea and Vietnam, of course, stand out as the primary examples, but other examples, from the Congo to the Dominican Republic, may also be cited as cases in which the President has initiated action without the approval of Congress. Often the situations have been such that the President deemed that immediate action was necessary. However, such crises severely limit the constitutional requirement that the President come before the Congress and ask for a declaration of

war.

The Constitution assigns to the President the role of Commander in Chief. To the Congress, on the other hand, the Constitution gives the power to declare war, to raise and support armies, and navies, and "to make rules for the Government and regulation of the land and naval forces." The constitutional role of the Congress to declare war has given way to the maintenance of a military posture at all times ready for war. This, in no way, diminishes the Congress' obligation under the Constitution to play an important part in determining when this Nation should involve its Armed Forces in hostilities. It is clear to me that we must reassert our responsibilities.

Vietnam has certainly taught us that we cannot involve ourselves in future hostilities without the full support and backing of the American people. I know all of us will agree that one of the greatest sources of alienation in our country-especially among young peoplehas been the war in Vietnam. No one in this country will ever want to be involved in another war like Vietnam. We have paid a terribly high price-nearly 56,000 killed; and untold billions of American dollars spent. Henceforth, war must be the result of a collective decision by the President and Congress, and not an undefined involvement which grows and grows until the entire fiber of our Nation is torn.

It is for precisely this reason that I have sponsored legislation to define rules for action by the President in the absence of a declaration of war by the Congress. Briefly stated, the legislation authorizes the President to act to repel attacks against the United States, or its Armed Forces lawfully stationed on foreign territory, and to protect the lives and property of U.S. nationals living abroad, as well as to fulfill treaty obligations. However, the rules would provide that military hostilities initiated under such authority could not be sustained beyond 30 days unless specifically authorized by the Congress. As such, this legislation will enable the Congress to reassert its constitutional prerogatives and establish firm guidelines to be followed if future hostilities should occur.

In 1971, Secretary of State Rogers stated that war powers legislation should be considered "after the passions of Vietnam have faded into the past." Though it will be years before that occurs, it seems clear to me that now is the time for the Congress to act on such legislation. I commend the subcommittee for its consideration of the various war power bills which have already been introduced in the 93d Congress. I am convinced it is imperative that a firm agreement on constitutional roles of the executive and legislative branches of our Government be reached in this Congress. Without it, the cooperation which is essential for our national security will not be realized.

Thank you.

STATEMENT OF HON. ROBERT 0. TIERNAN OF RHODE ISLAND

Mr. Chairman, I appreciate this opportunity to testify before your subcommittee on behalf of war powers legislation, an issue which I feel is as important now as it was in February of 1971, when I first introduced the "War Powers Act."

My bill, H.R. 2740, states that in the absence of a declaration of war, the President, as Commander in Chief of the Armed Forces, may act (1) to repel a sudden attack against the United States, its territories, and possessions; (2) to repel an attack against our Armed Forces on the high seas or lawfully stationed on foreign territory; (3) as may be required, to protect the lives and property of U.S. nationals abroad; and (4) to comply with a national commitment resulting exclusively from affirmative action taken by the executive and legislative branches of the U.S. Government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment, where immediate military hostilities by our Armed Forces are required.

Here we come to the important part of my bill. The President may not sustain these military hostilities beyond 30 days without explicit approval by the Congress. In addition, the Congress may terminate these hostilities before the 30-day period is over.

Mr. Chairman, the need for this type of legislation is unquestionable. Today we face a constitutional crisis unparalleled in our history. The past 20 years have seen a growing willingness by our Presidents to disregard the Congress in involving American Armed Forces in "undeclared" conflicts. Thus, the President has been the one to decide when our troops will be used, where they will be sent and how large the conflict will be. The Congress has been disregarded completely. We have been delegated to the role of putting up or shutting up. Surely if we are to "preserve, protect, and defend the Constitution of the United States" then we must act and we must act now.

The intent of our Founding Fathers is clear. Article I, section 8 of the Constitution specifically gives to the Congress the power to declare war and make rules for the Government and the regulation of our Armed Forces. The writings of Jefferson, Madison, Monroe, and others, all make it perfectly clear that no warmaking power is given to the President. Lincoln reiterated this when he said:

"Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure".

So why now do our Presidents commit us to war without congressional approval? Indeed, what has happened to the Constitution? I would like to briefly state what I feel has happened and how we can return to true democratic rule as envisioned by our forefathers.

In the entire history of our Nation, Congress has declared war five times. Four times we authorized direct military operations. More than 125 military operations were carried on with no direct

authorization by Congress. Most of these, obviously, were of a very limited nature. Recently, however, this has not been the case. In the past decade alone, Presidents have intervened five times in foreign nations with American Armed Forces and without prior congressional consent: The Bay of Pigs, the invasion of the Dominican Republic, and the attacks on North Vietnam, Cambodia and Laos. Can any of us say that these constituted genuine emergencies? Did any justify bypassing Congress because they were an immediate threat to the United States?

This use of excessive war powers by the President has risen partly from the cold war and the nuclear age; partly by congressional acquiescence, inertia and indifference; partly by Presidential assumption, and partly by the positive delegation of Congress. Four examples of Congress readily giving up a great deal of its constitutional jurisdiction come to mind: the Formosa Resolution of 1955, the Middle East Resolution of 1955, the Middle East Resolution of 1957, the Cuban Resolution of 1962, and the Gulf of Tonkin Resolution of 1964.

As for the emergence of the nuclear age, it is for this very reason that we must not leave the war making powers with one man, for the results are too devastating. No one man should be allowed to decide whether or not an entire nation will be destroyed, which may in return destroy us. On the other hand, with the threat of nuclear holocaust hanging over our heads, it is likely that in the future we will see a continuation or possibly an acceleration of guerrilla wars. One of our greatest challenges is never again to allow a single man to commit our lives, our resources and our money to future Vietnams in Asia, Africa or Latin America.

Certainly the changed conditions in this world mean that Presidential power must be enlarged to meet altered circumstances. But only to a point. Once beyond that point, the emergence of a totalitarian system is made almost inevitable. In the past few years, we have found ourselves closer to this point than many of us would like to admit. For this reason more than any other, we must enact into the law the War Powers Act this year.

Now let us look for a moment at Congress allowing and the President assuming these excessive powers. Congress must bear a great deal of the burden. Where were our voices when President Truman committed Armed Forces to Korea in 1950 without congressional authorization? Where were our voices in 1969 when President Nixon stated: "And, although reasonable men may differ as to the circumstances in which he should do so, the President has the constitutional power to send U.S. military forces abroad without specific congressional approval."

We in Congress do not seek to reclaim our right to declare war because we are any wiser than the President. We do so first and foremost because the future of our democratic form of government, as envisioned by our Founding Fathers and established by the Constitution, is at stake. Secondly, it is my belief that Congress would use this authority more sparingly than the President, as one man, would. For war is the most crucial issue anyone can deal with, and it should not and cannot be easy to initiate.

Open debate by the Congress may bring up risks otherwise overlooked or alternative courses never considered. It substitutes the experience of many voices for that of one at a time when no objection is too small. And it may well serve to secure the consent of our citizenry, certainly a vital factor as the Vietnam war has so painfully proved. The President reaches his decision to go to war through private processes, inaccessible to the individual citizen, Congress provides that accessibility. Without the moral sanction of the American people, the consequences of war are no less destructive here in our own country than where the bombs are falling. Only by returning to the dictates of the Constitution can we guarantee that we will never again go to war without the support of our citizens.

Mr. Chairman, those who oppose the War Powers Act do so basically for three reasons: (1) historical precedents of past Presidents acting without congressional approval; (2) only the President has all the facts; and (3) the President has at his command all the experts in the executive branch.

If I may, I would like to briefly refute each of these arguments. First of all, precedents of past Presidents have never been binding. They are meant to serve as guides and that is all. And certainly we can ask here, because one President usurps the warmaking power from Congress, is it automatically constitutional and right for others to do so? With each usurpation, the intent of our Founding Fathers to maintain a balance of power grows weaker and weaker. Let me quote our first President:

If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.

The other two arguments against the War Powers Act stem not from what is customary or what must be, but from almost paranoic public officials. The whole issue of the Pentagon Papers is raised, an issue which is too complex to get into here. But questions can be raised. Must these facts all be kept secret? Is our national security truly at stake? And why should President Nixon be allowed to dictate who can and who cannot testify before Congress? Certainly the President has the right to private counsel. But when that counsel becomes the policy of this Nation, Congress has the need and the right to know. If the President is allowed to maintain complete control of the warmaking machinery we are in serious danger of him obtaining complete control in other essential areas of our national life. Tocqueville put it this way" "War breeds dictatorship". Certainly if our Founding Fathers made one thing clear, it is that they truly feared an unchecked appetite for power.

The blatant truth is that we have strayed dangerously far from the political system our forefathers envisioned. Madison said:

There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates.

To this we can add, there can be no liberty if either the legislative or the executive branch acts to the exclusion of the other.

Mr. Chairman, there is no more important legislation at this time in our history than the War Powers Act. For what we are dealing with is the heart of the Constitution and the heart of our democracy, I urge your committee to act expeditiously.