Senator EAGLETON. I don't think it does. This was raised by Senator Sparkman at the Foreign Relations Committee hearing last year on a similar war powers bill.

There is language, in NATO, for instance, that nothing herein contained in this treaty shall affect the obligations of countries to participate pursuant to its constitutional process.

Mr. BIESTER. I appreciate this, but apart from legalism and interpretations of NATO, to what extent would it be an offer of invasion of the whole process of the commitment to the defense of Europe?

AUTHORIZATION TO BECOME ENGAGED IN WAR

Senator EAGLETON. I don't think it would have a disastrous or negative effect. I think it must be well known to the leaders of Great Britain and West Germany that before American troops become involved there has to be authorization to become engaged in war.

It might be a widely known fact, but I think it is known by leaders of respective countries, and I don't think further codifying this in the war powers bill would have a negative effect.

Mr. BIESTER. Suppose there was an attack on West Germany and our forces were involved, so we have 3-1 or 3-2 situation and the Congress voted against further involvement. Then it would be the obligation, I take it, of the President to get those troops out, prompt disengagement. How would he go about doing that?

Senator EAGLETON. And also protecting the troops while they are being promptly disengaged. Are you worrying about what happens to them when they are under fire in the process of disengagement?

Mr. BIESTER. From what sources would they be under fire? Suppose an attack on France, West Germany, and Italy, and Congress votes, "No," and we try to get 330,000 troops out of Europe. How will that be accomplished?

Senator EAGLETON. I guess with an airlift.

Mr. BIESTER. Do you think it might be difficult with our then former allies?

Senator EAGLETON. It might be somewhat difficult, but suppose we don't pass any bill at all, none whatsoever, and the same hypothetical thing takes place. I think you have to come to Congress to get a declaration of war. Suppose we refuse to give it?

Mr. BIESTER. I agree.

TREATY OBLIGATIONS TO ALLIES

Senator EAGLETON. Either House refuses to go along with the declaration. What effect does that have on our "Treaty obligations" with our allies?

Mr. BIESTER. I agree with you. It comes back to the question of whether it is a negative action on the part of Congress or affirmative action on the part of Congress.

I share Mr. du Pont's apprehension about our moving sometimes. It represents an example that could be perhaps in a SEATO country. With respect to other NATO countries, does the Prime Minister of Great Britain have the capacity to put British troops in Europe?

Senator EAGLETON. I don't know what the constitutional authorization is in Britain or Belgium or any of the other NATO countries.

Mr. BIESTER. That has not established our relationship.

Senator EAGLETON. NO.

Mr. BIESTER. And we assume any change in ourselves would stabilize theirs.

Senator EAGLETON. Since it is clearly worded in the NATO alliance that actions will be taken pursuant to constitutional role of each power, it is already there and they are on notice of it.

Mr. ZABLOCKI. Thank you, Senator. The subcommittee stands adjourned until 10 a.m., tomorrow morning.

(Whereupon, at 12:25 p.m. the subcommittee adjourned, to reconvene at 10 a.m., Thursday, March 8, 1973.)

[The statements of Congressmen Fascell, Bingham, and Chappell follow :]

STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. FASCELL. Mr. Chairman, thank you for this opportunity to appear before your subcommittee once again in support of war powers legislation. I commend you for scheduling early consideration of this crucial issue. Now is the time to act. It is imperative that we look to our involvement in Vietnam, and take action while that experience. weighs clearly in our minds. The subcommittee's prompt action again reflects your strong leadership on this issue, Mr. Chairman, and you are to be congratulated.

I am glad that the distinguished Members of the other bodySenator Javits and Senator Eagleton-have joined us today. Under their leadership in the Senate, overwhelming support has been generated for the reassertion of the congressional prerogative and responsibility.

Since this committee first held hearings on war powers proposals in 1970, there has been growing support-and need-for affirmative action by the Congress to reassert itself as an integral part of the war power decisionmaking process. We have reviewed and debated the constitutional provisions, the notes of the constitutional convent'on, and historical precedence. This has led to the inescapable conclusion that the responsibility, under the Constitution, of committing U.S. troops to armed conflict is one shared by the legislative and executive branches of Government. The balance between the two branches intended by the framers of the Constitution has in recent history, however, swung heavily to the executive. Our efforts, then, are directed at restoring a proper balance by defining arrangements which will allow the President and Congress to work together toward the goal of maintaining the peace and security of the Nation.

RESOLVING DIFFERENCES BETWEEN HOUSE, SENATE MEASURES

The House has on two occasions passed legislation reported by this committee. Last year, the Senate also passed war powers legislation by a substantial margin, which has been reintroduced this year by the distinguished Senator from New York, Mr. Javits, and at least 57 of his colleagues. The task before us is to resolve the differences between the two measures.

The resolution introduced by Chairman Zablocki, which I am pleased to have cosponsored, includes several modifications of the war powers resolutions passed by the House last year. House Joint Resolution 2, as now written, includes a provision specifying those emergency circumstances under which the President may commit U.S. Armed Forces without a declaration of war. The comparable Senate provision is substantially more specific, and delineates in detail authority which the Presidency has assumed over the years by Executive action and Executive interpretation of the Constitution. Actually, this authority has accrued to the office not from any legal or constitutional basis, but simply from its exercise. The House language is more general, and, I suggest, more in line with our objective.

By legislating powers now only assumed, we are in essencegiving the Executive authority which he does not now have. In other words, we are increasing his power, not decreasing it.

The impoundment issue, although clearly unrelated, is somewhat parallel. If Congress legislates regarding how the President will advise the Congress of his intention to impound funds, and what subsequent action will be taken by the Congress, we are in essence acknowledging the existence of his authority to impound. To define the power, necessarily recognizes its existence.

Similarly, if we, by statute, cite specific powers which are not now in the Constitution nor in the law, we are in reality expanding the authority of the President.

PRESIDENT NEEDS EMERGENCY POWERS

Of course I recognize, as we all do, that the President must have certain emergency powers to protect the country and its citizens. The nature of modern warfare and technology demands it. The House and Senate proposals both recognize this as well. I feel, however, that the less said the better, and urge approval of the language in House Joint Resolution 2.

Second, both the House and the Senate bill require the President to report to the Congress when he takes emergency action to commit U.S. forces. This is crucial. Clearly, if the Congress is to carry out its responsibilities we must always be fully advised. Such consultation should not be limited to after the fact reporting, however.

Central to the war powers issue is the establishing of full, continuing communications between the Congress and the executive branch. The most important factor, in my judgment, is to insure that the Congress is interjected in the war making process at the outset. Translated, this means that the Congress-or at the least those committees with direct jurisdiction over national security affairs-should always be fully apprised of U.S. troop presence and strategic interest anywhere in the world that could lead to involvement in armed conflict. We should know on a regular basis those incidents, minor and maior, reported and unreported, which could lead to any necessity for the commitment of U.S. troops.

We now have the benefit of State Department briefings from time to time generally after the fact and after we've all read about it in the newspapers. But we all know that the high-level foreign policy

decisions which could involve the commitment of U.S. forces are made

not in the State Department, nor in the Defense Department, but in the White House-in the Office of the National Security Affairs Advisory and among the Joint Chiefs of Staff. It is these officials who should keep the Congress apprised. I say this with all deference to the State Department, of course.

MEANS OF KEEPING CONGRESS INFORMED

It has been suggested that the most effective means of keeping Congress informed might be for each House, or the Congress as a whole, to maintain a "situation room" with full-time staff on the job around the clock. The problems with this are obvious-but the point is we should not have to resort to such measures.

House Joint Resolution 2 does provide for consultation, and directs the President to consult with the Congress in situations "where imminent involvement in hostilities is clearly indicated."

Ideally, if the Congress were fully apprised, few emergency situations should arise which the Congress did not already have sufficient knowledge of. Furthermore, the concept of consultation need not be viewed as a one-way conversation. Meaningful briefings on sensitive areas could give the administration the benefit of the thinking of Members of Congress as well. The Congress could effectively advise the President, through his advisers, if it felt that our presence in any area was not sufficiently important to warrant possible involvement in war. Such consultation might modify U.S. posture before events leading to armed conflict developed.

In this way, the Congress could interject itself at the very outset of serious developments. There is, of course, a concurrent responsibility of the Congress to give every consideration to matters presented to it. If the President did act under emergency authority, however, the Congress would have substantial knowledge of the facts leading up to that commitment. It would then be incumbent upon the President to report to the Congress on what specific additional incidents were sufficiently severe to warrant the use of armed forces.

PRESIDENT'S EMERGENCY ACTION ONLY TEMPORARY

It would then be up to the Congress to take further action. It must. be clearly understood that any emergency action taken by the President would be only temporary in nature. Only the Congress can declare war and commit the United States to long-term involvement.

The Senate bill provides that the President's emergency authority shall expire within a specific time period-30 days-absent congressional action specifically authorizing continued commitment. Such a provision would, theoretically, put a limitation on the President's authority.

While there are those who subscribe to the theory that it is better to act than not to act, even though the action could predictably be a resounding vote of confidence in the President, I question that theory. It is my contention, that a requirement for congressional action within a specific time period would result, from a practical standpoint, in the automatic, pro forma ratification of the President's action. The pressure of taking action within the 30 days-or even an extended time, as provided for in the bill-would almost demand congressional approval.

The House proposal, on the other hand, provides for immediate congressional consideration regarding future authorization, but does not require action within any specific time frame nor provide for the cessation of the President's authority.

Herein lies the crux of the issue.

A STRUCTURE FOR INFLUENCING THE PRESIDENT

In the winter edition of Foreign Policy, Dr. Jack M. Schick of the Johns Hopkins University School of Advanced International Studies, commented on a series of articles by Senators Eagleton, Stennis, and Goldwater, and myself regarding the war powers issue and, specifically, the Senate proposal. Dr. Schick expressed his opinion that "It (the House bill) creates a structure for influencing the President before he acts which I would argue is the only way for Congress to be effective."

I concur with this position, and suggest that we give consideration to incorporating in any war powers legislation approved by the Congress, an even more explicit provision for insuring high-level consultation on a regular basis-and on an emergency basis when warrantedbetween the Congress and the Executive. While this seems a painfully elementary approach, and would presumably occur out of necessity, we know that we cannot rely on what ought to be. By requiring consultation, perhaps there would be little need for further provisions regarding Presidential action without congressional authority.

The 93d Congress faces a fundamental challenge. That is, whether or not we will meaningfully reassert our initiative in the policymaking process, reestablish our role as a viable force for leadership and change, and assume our constitutional responsibility and authority. Nowhere is it more important that this challenge be met effectively than in the powers of war.

I know the committee will continue to give this issue priority consideration, and I commend you, Mr. Chairman, and the committee members, as well as the distinguished Senators for the lead you have taken in this critical field. The Congress must act, and I urge a full and open discussion between the two bodies in an effort to resolve the difference in postures and enact effective legislation reconfirming the congressional role. I am willing to consider every alternative so that action may proceed in an expeditious manner.

The two bodies of the Congress have finally taken strong action on this issue. The differences which exist between the House and Senate are not so great that they cannot be resolved and a result which can be approved by both bodies obtained. It is extremely essential that we reach an accord. If we do not do so now, the opportunity may be lost for another 197 years.

Thank you, Mr. Chairman.

STATEMENT OF HON. JONATHAN B. BINGHAM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. BINGHAM. First of all, I should like to compliment you, Mr. Chairman, for once again holding hearings on this most important topic.

Senator Javits and others have eloquently argued the need for legislation to reassert the authority of the Congress over basic ques