Page images
PDF
EPUB
[merged small][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small]

3Though reliance was also placed on the U. N. Charter, the Truman

Administration based its authority to commit troops squarely on the President's
independent Constitutional authority. Rogers, discussion supra, footnote 55,
jat $7197.

In fact President Eisenhower sent troops into Lebanon without seeking specific Congressional approval and without specifically basing his authority on the 1957 Middle East Resolution.

Id.

5According to Secretary of State Rogers, "the Cuban Resolution, unlike the other area resolutions contained no grant of authority to the President." 12.

STATEMENT OF HON. FRANK HORTON OF NEW YORK

Mr. Chairman, I am grateful for the opportunity to address this subcommittee on the crucial question of war powers legislation. As you know, Mr. Chairman, I sponsored legislation in the last Congress which was very similar to the Javits-Eagleton-Stennis war powers bill passed by the Senate. The major difference between my bill and the Senate bill is that I propose the creation of a new joint committee.1 As a result, my legislation is again pending before our Rules Committee even though its basic thrust is appropriately under this subcommittee's purview.

I should begin by commending this subcommittee for promptly returning to the question of war powers after the failure last year to gain House and Senate agreement on a single bill. I must also voice my hope that this subcommittee will report out a bill that is significantly stronger than those previously sent to the House floor. The subcommittee has numerous measures before it that would accomplish that goal.

In the war powers area, as in others, there is a compelling need for Congress to redress an imbalance of power. I say imbalance because the President not only wields virtually unilateral power to defend our Nation, but also to involve us in future Vietnams. For that reason, many of my colleagues and I are seeking ways to govern the commitment of Armed Forces "in the absence of a declaration of war by the Congress."

While the framers of the Constitution did not envision an era of undeclared warfare, they had much to say about war powers. Article I, section 8 of the Constitution enumerates the comprehensive war powers of Congress as follows:

Provide for the common defense.

To define and punish * * * offenses against the law of nations.

To declare war.

To raise and support armies.

To make rules for the government and regulation of the land and naval forces.

To provide for calling forth the militia to execute the laws *** and repel invasions.

To provide for organizing, arming, and disciplining, the milita, and for governing such part of them as may be employed in the service of the United States.

In contrast to this specific enumeration, the war powers actually granted the President are far less clear. Article II, section 1 states: The executive power shall be vested in a president of the United States of America.

Article II, section 2 goes on to state without further elaboration: The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States.

1 Membership of the proposed joint committee appears at end of statement on p. 379.

I have taken the time to compare these constitutional authorities because some critics of strong war powers legislation have argued that my bill and others tread on the President's power as Commander in Chief. Senator Jacob Javits addressed the relationship of the Congress' war powers to the President's function as Commander in Chief in an article he prepared for the New England Law Review. His remarks are worth noting:

Clearly, the drafters of the Constitution had the experience of the Continental Congress with George Washington in mind when they designated the President as "Commander in Chief" in article II, section 2. Thus, the "legislative history" of the constitutional concept of a Commander in Chief was the relationship of George Washington as colonial Commander in Chief to the Continental Congress. That relationship is clearly defined in the Commission as Commander in Chief which was given to Washington on June 19, 1775, and which was formally returned by him to the Continental Congress on December 23, 1783.

I would like to quote the final clause of this Commander in Chief's Commission, because it establishes the relationship of the Congress to the Commander in Chief in unmistakable terms:

"And you are to regulate your conduct in every respect by the rules and discipline of war (as herewith given you) and punctually to observe and follow such orders and directions from time to time as you shall receive from this or a future Congress of the said United Colonies or a committee of Congress for that purpose appointed."

Mr. Chairman, I do not believe that an examination of the Constitution and its historical underpinnings-leaves much room for doubt about the intentions of our Founding Fathers. The basic premise of the Constitution, with its deliberate system of separation of powers and checks and balances, is that national decisions are the collective work of the people's representatives in Congress and of the President. By enumerating the war powers of Congress so extensively, the framers of the Constitution were intent on assuring the Congress a concurring role in any commitment of the Nation to war.

The problem, of course, is undeclared wars which circumvent the constitutional process of congressional concurrence. My bill, I believe, would return the role of Congress to its proper and contemporary perspective. Under its provisions, the President may act immediately to meet an emergency situation, without waiting for congressional action. He would be required, however, to withdraw U.S. troops within 30 days if Congress had not authorized continuation of the action within that time. My proposal gives the President the latitude and flexibility he needs as Commander in Chief to respond to any crisis. At the same time, it would bring Congress back into the decisionmaking process, a role also dictated by the Constitution. Should the Congress terminate Presidential authority to continue military hostilities, he is given enough flexibility to withdraw our troops safely.

Mr. Chairman, I am not one who is charging that Presidents have usurped congressional warmaking powers. On the contrary, I blame the Congress for not developing a viable procedure whereby we can share in decisions to engage U.S. troops abroad which fall short of declared warfare. For this reason, my bill, unlike other war powers bills, focuses directly on the actual mechanics of congressional responsibility in warmaking decisions by creating a Joint Committee on National Security. This joint committee would bring together the leadership and authoritative Members of Congress in foreign and military affairs. A listing of the 24 members I propose is contained in

an appendix to this statement. The President, at his option, could consult with the joint committee prior to taking a military action which requires congressional ratification. But he must consult with it within 24 hours after taking such action. The joint committee would serve as a liaison between the White House and the Capitol throughout deliberations on the President's action. In short, we will not only be requiring the President to consult the Congress but we will be designating with whom he must consult. I do not envision the joint committce functioning only in times of emergency. Rather, it should perform an ongoing role of consultation and dialog between congressional leaders and the executive branch officials responsible for military affairs. While the joint committee would have no legislative powers and thus would not interfere with the jurisdiction of established House and Senate committees, it would serve as a congressionally designated liaison between Congress and the President on national security matters.

In closing, Mr. Chairman, I would like to touch upon one further point. As you know, many of us who have sponsored war powers legislation so drafted our bills that they would not apply retroactively to the Vietnam war. My bill and the Javits bill, for example, state that the act shall not apply to hostilities in which the Armed Forces of the United States are involved on the date of enactment. However, with the total withdrawal of American forces from hostilities in North and South Vietnam, I believe the provisions of my bill would be applicable to any possible resurgence of that conflict. In addition, I believe that the War Powers Act should apply to the reintroduction of forces throughout Indochina if, by its enactment, there is an effective cease-fire throughout Indochina. I am concerned that unless Congress clearly defines its intentions along these lines, the result will be another battle of interpretation between the Congress and the Executive. Should this subcommittee act favorably on a strong war powers measure, I urge that these potential problems be dealt with as specifically as possible.

MEMBERSHIP OF THE PROPOSED JOINT COMMITTEE ON NATIONAL SECURITY

Chairman: The Speaker of the House.1

Vice-Chairman: The President pro tempore of the Senate1

Members: The Manority Leader of the House, The Majority Leader of the Senate, The Minority Leader of the House, and The Minority Leader of the Senate. The Chairman and ranking minority member of each of the following committees: Senate Foreign Relations Committee, Senate Armed Services Committee, Senate Judiciary Committee, House Foreign Affairs Committee, House Armed Services Committee, House Judiciary Committee, and Joint Committee on Atomic Energy.

One Member of the House who is not a member of any of the aforementioned Committees to be appointed by the Speaker of the House.

One Member of the Senate who is not a member of any of the aforementioned Committees to be appointed by the President pro tempore of the Senate.

One Member of the House who is not a member of any of the afcrementioned Committees to be appointed by the Minority Leader of the House.

One Member of the Senate who is not a member of any of the aforementioned Committees to be appointed by the Minority Leader of the Senate.

1 Rotating chairmanship.

93-626 0-73 25

STATEMENT OF HON. ROMANO L. MAZZOLI OF KENTUCKY

Chairman Zablocki, I wish to commend you and your fellow subcommittee members for your prompt and timely consideration of this most vital legislative issue.

I feel quite strongly that there is no question more important to our long-term national security than the clarification of the limited powers of the President to make war without the express consent of Congress. Accordingly, I wish you Godspeed in your deliberations, and submit for your hearing record the following newspaper article, which I wrote last month describing my views on this subject.

[The article follows:]

BI-WEEKLY COLUMN No. 3-BY ROMANO L. MAZZOLI, U.S. CONGRESSMAN, THIRD DISTRICT, KENTUCKY

At long last, America is disengaging from the longest and, in many respects, most costly war in our nation's history.

As our last troops are withdrawn and our prisoners reunited with their families, it will be tempting to dismiss the sordid memories of the Vietnam War from our minds.

But for us in Congress, the crucial moment is at hand. We must face up to the lessons the Vietnam conflict has taught us.

Perhaps, the most important of these lessons is one that our founding fathers foresaw 200 years ago when they drafted the Constitution.

The Constitution makes it clear that the collective judgment of the elected members of the Congress is the necessary buttress of any decision to commit our country to war.

The Constitution states that it is the Congress which shall have the powers to "declare war," "to provide for the common defense," "to raise and support Armies," "to maintain a Navy," and "to make rules for the government and regulation of the land and naval forces."

In the years since World War II, the Constitutional war powers of the Congress have atrophied, while the Presidential powers have expanded.

In 1950, President Truman committed our armed forces to Korea without Congressional authorization. During the 1960s, our nation drifted into full-scale war in Vietnam, largely as the result of Presidential initiatives.

The President, of course, is designated by the Constitution as Commander in Chief of the nation's armed forces. As such, the President must certainly retain full powers to act swiftly in emergency situations.

No sensible legislator would seek, in any way, to hamper the President in repelling an armed attack upon the United States or in taking appropriate action when such an attack is threatened.

Similarly, the Commander in Chief must be capable of fully protecting United States troops and American citizens located in foreign lands.

But, within this practical and Constitutional framework, the Congress must play a role in making these life and death decisions. So, legislation has been introduced describing the "War Powers" of the Congress.

None of the various "War Powers" bills would, in any way, prevent the President from taking prompt action in the defense of our national interests. However, these bills would require the President-after committing U.S. forces to battle-to inform Congress of his reasons for taking such action.

If, in the judgment of the Congress, it is not in the best interest of the United States to continue the hostilities, the President would be required to disengage our forces in an orderly and prudent way.

« PreviousContinue »