STATEMENT OF HON. AL ULLMAN OF OREGON

Mr. Chairman, I appreciate the opportunity to submit testimony on my bill, H.R. 1454, dealing with war powers. The hearings on this issue are most timely in view of the growing controversy on Federal balance between Congress and the President. I firmly believe that Congress must enact meaningful and effective legislation in this area. My bill, H.R. 1454, is identical to the bill passed by the Senate in April 1972. The general purpose of the bill is to make rules governing the use of U.S. Armed Forces in hostilities in the absence of a declaration of war by Congress. The fact that the Nation has been bogged down for so many years in the futile quagmire of Vietnam highlights the need for this legislation. This bill attempts to reflect the intent of the framers of the Constitution by insuring that the collective judgment of both the Congress and the President applies to the commitment of Armed Forces in hostilities.

The authority for this legislation derives from article I, section 8 of the U.S. Constitution-Congress shall have the power to make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof." The bill is not intended to encroach upon the recognized powers of the President as Commander in Chief and Chief Executive to conduct hostilities authorized by Congress, to respond to attacks or imminent threat of attacks, and, under proper circumstances, to rescue endangered U.S. citizens located in foreign countries.

Central to the bill is a requirement that the President seek congressional approval to maintain our Armed Forces in hostile action after 30 days. If Congress does not approve, the President must withdraw our forces. In my judgment, such legislation is needed to fill a very large void that permits dangerous executive latitude.

This legislation does not impair the President's flexibility to meet emergency situations, but will prevent the Nation from being sucked in to a long term, undeclared war like Vietnam. This is a reassertion of the responsibility of Congress. We simply must not allow a President to wage war, declared or undeclared, without asserting the will of the people through the Congress.

Thank you for the opportunity to place this statement before you today.

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STATEMENT OF HON. CHARLES H. WILSON OF CALIFORNIA

I would like to begin by thanking this distinguished subcommittee for holding these hearings on this very important legislation to define the authority of the President to intervene or to make war abroad without the consent of Congress.

As the Representative of the people of the 31st District in California, I have been aware, through the mail received by my office and through the many talks I have had with constituents that overwhelmingly our citizens feel that Congress has proved ineffective in dealing in a positive way with the war in Vietnam. Additionally, as a member of the House Armed Services Committee, I have wrestled at great length with the question of how best to assure no more Vietnams. Anytime, anywhere.

After much consideration and study, earlier this year I introduced H.R. 3333, the War Powers Act, to require majority approval by Congress before the United States commits military or civilian assistance to another country. Of course, my legislation would not infringe on those emergency powers of the President which are necessary to secure an adequate defense of this great country. I quote from my bill:

The central core of the War Powers Act is contained in sections 3 and 5 of the bill. Section 3 consists of four clauses which define the conditions of circumstances under which, in the absence of a congressional declaration of war, the Armed Forces of the United States "may be introduced in hostilities, or in situations where imminent involvement in hostilities is clearly indicated by the circumstances."

The first three categories are codifications of the emergency powers of the President, as intended by the Founding Fathers and as confirmed by subsequent historical practice and judicial precedent. Thus, subsections (1), (2), and (3) of section 3 delineate by statute the implied power of the President in his concurrent role as Commander in Chief.

Subsection (4) of section 3 is perhaps the most significant; while subsections (1), (2), and (3) codify emergency powers which are inherent in the independent constitutional authority of the President as Commander in Chief, subsection (4) deals with the delegation of the Congress of additional authorities which would accrue to the President as a result of statutory action by the Congress, and which he does not, or would not, possess in the absence of such statutory action. Thus, subsection (4) regulates and defines the undertaking of a “national commitment.' Section 5 provides that actions taken under the provisions of section 3 "shall not be sustained beyond 30 days from the date of the introduction of such Armed Forces in hostilities or in any such situation unless-'the continued use of such Armed Forces in hostilities or in such situation has been authorized in specific legislation enacted for that purpose by the Congress and pursuant to the provisions thereof.' "

Section 5 resolves the modern dilemma of reconciling the need of speedy and emergency action by the President in this age of instantaneous communications and of intercontinental ballistic missiles with the urgent necessity for Congress to exercise its constitutional mandate and duty with respect to the great questions of war and peace.

As one can see from the above, the conditions in which, in the absence of a congressional declaration of war, our Armed Forces can be introduced into hostilities or into situations where hostilities seem

imminent, are clearly defined. However, an executive action cannot be sustained beyond 30 days from the date of the introduction of our armies unless Congress has authorized such a national, long-term commitment. Thus, while the power of the President as Commander in Chief is protected, the advice and consent of Congress is also upheld.

Indeed, during the last 5 years or so Congress has been faced with the dilemma of dealing with the Vietnam situation only through the difficult and, at any rate, ineffective method of having to resort to the power of the purse to cut off defense funds.

My colleagues, the prolonged tragedy of the Vietnam war has taught us that we cannot afford another tragic waste of our Nation's human and technological resources. For this reason, I advocate the basic institutional reform of the War Powers Act to redress the lopsided balance of powers which led to the tragedy of Vietnam and to assure that the will of the people, as expressed through their elected representative, be imposed on the grave decisions of whether or not to send American boys to war.

APPENDIX

STATEMENT OF PROF. EUGENE V. ROSTOW, YALE UNIVERSITY LAW SCHOOL, NEW HAVEN, CONN. (MARCH 14, 1973)

DEAR MR. CHAIRMAN: I deeply regret that forces beyond my control have prevented me from keeping my engagement to testify before the subcommittee on March 15. Î had looked forward to meeting again with you and your colleagues, which I always enjoy, particularly because my esteemed friend Raoul Berger was scheduled to participate in the discussion.

This letter will constitute a brief statement for the record of my views on the bills before your committee, supplementing that contained in the enclosed article, which was published in the May 1972 issue of the Texas Law Review. I shall confine my letter to issues which have emerged in the debate over war powers legislation since that article was written.

I am still of the view that the wisest course for Congress under the circumstances is to pass no legislation whatever on the subject. In my opinion, the attempt to codify the respective war powers of Congress and of the President is both unwise and impossible. As Hamilton pointed out long ago, the circumstances that may endanger the safety of the Nation, and call for the use of the national force, or the threat to use it, are "infinite," so that "no constitutional shackles can wisely be imposed on the power to which the care of it is committed." You will note that even the most vehement of those who support restrictive legislation in this area avoid the problem of nuclear weapons.

House Joint Resolution 2 is of course the least objectionable of the bills before you. But in my opinion it is unduly restrictive in its operational definition of the President's authority to use force without the prior authorization of Congress. Section 3 would exclude the emergency use of force by the President pursuant to the obligations of the North Atlantic Treaty and other treaties of the United States. It would forbid what President Truman did in the first precarious days of the Korean War, under the authority of the United Nations Charter, and equally prevent the United States in the Security Council from voting for sanctions under chapter VII of the United Nations Charter, or supporting efforts at collective self-defense, as was done in the Korean case. As I read it, it would also exclude the President's effective threat to use force in situations of diplomatic tension, like the Cuban missile crisis, the several Berlin crises, the Middle East crises of 1967 and 1970, or the crisis over Bangladesh. For reasons given in my Texas article, I conclude it would be an unconstitutional interference with the President's inherent power to conduct our foreign relations, and to interpret and apply our treaty obligations in the first instance.

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