January 6, 1973
Page 433
SEPARATION OF POWERS
Mr. MUSKIE. Mr. President, three editorials published in the New York Times of January 3 make clear the danger to the doctrine of separation of powers in the President's apparent desire to govern America alone. He has shown contempt for explicit congressional directives by impounding funds we appropriated for needed public investments. He has defied our implicit power to consult in the making of foreign policy by denying us the information we must have to act intelligently. And he has deceived us and the American people with half-truths or outright misstatements of fact about the course of the war in Indochina.
The New York Times refers to the President as behaving with "the aloofness of a Roman emperor." It is not inappropriate to remind my colleagues that there were no Roman emperors until the Senate of Rome moved from obsequiousness to impotence. I hesitate to claim that history could repeat itself, but I strongly advise my fellow Senators to reflect on the danger we confront and the proper course of vigorous action we must pursue to reassert our prerogatives and the protection they offer our democracy.
The New York Times wrote:
A Chief Executive determined to conduct war and foreign affairs without constraint or even consultation, determined to shield the Administration's effective policy-makers from Congressional cross-examination by the vastly enlarged use of the doctrine of executive privilege, and determined to arrogate to himself a total control over Federal spending decisions is a President seeking nothing less than the surrender of his adversaries. Congress cannot escape responding to these direct challenges to its authority.
Our response must be quick and decisive. The 93d Congress must act to revive its authority or risk such erosion of its prestige and power that the legislative branch becomes an empty appendage of government. The issue is the central political question we face, and I believe the New York Times editorials have clearly described the challenge. I ask unanimous consent that they be printed in the RECORD.
There being no objection, the editorials were ordered to be printed in the RECORD, as follows:
(From the New York Times. Jan. 3, 1973)
NO EXIT FOR CONGRESS ...
Because they are different kinds of institutions, the Presidency and the Congress naturally tend to have differing perspectives on the nation's needs. When executive and legislative powers are controlled by opposing parties, this tendency is usually magnified. But mutual respect and normal civility can bridge these institutional and political antagonisms and make constructive cooperation possible.
The 93rd Congress that convenes today, however, faces an unusual situation. In the past, it has been understood that divided government imposed a limit on the initiatives which either side could pursue. For better or for worse, the President and Congress recognized that they were yoked together and could only move within an ill-defined but mutually discernible middle area of policy.
When President Franklin D. Roosevelt lost his large Congressional majorities, he conciliated Republicans and conservative Democrats by announcing that he had dismissed Dr. New Deal and replaced him with Dr. Win-the-War. He thereby acknowledged that the time for domestic reform had temporarily passed.
Similarly, President Eisenhower jogged along amicably enough with the Democratic-controlled Congresses of the mid-fifties in part because they were only marginally Democratic and moderately led and in part because he refrained from pushing for conservative change.
By contrast, the first Nixon Administration is ending on a note of open defiance of Congressional power, Congressional judgment, Congressional sensibilities. Nothing in the Constitution specifically required Mr. Nixon to consult with the leaders of Congress before he resumed the terror bombing of North Vietnam last month, but comity between different branches of government as well as the plain intent of the Constitution should have impelled him to do so.
In his management of the water pollution issue, President Nixon has not only disregarded the overwhelming judgment of Congress – other Presidents have done that – but has explicitly refused to conform to the terms of the law enacted over his veto.
By his reorganization of the Government, his impounding of Congressionally authorized funds and in other ways, Mr. Nixon has clearly signaled his intention to put his will against that of Congress. In the past, such head-to-head conflicts have led to the decisive repudiation at the polls of one or the other of the antagonists.
To outside observers, the most striking fact about the November 1972 election was that it failed to produce a coherent governing majority. But if Mr. Nixon chooses to interpret his "lonely landslide" as a mandate for an aggressively reactionary ideological grand design, only Congress can effectively dispute him.
A Chief Executive determined to conduct war and foreign affairs without constraint or even consultation, determined to shield the Administration's effective policymakers from Congressional cross-examination by the vastly enlarged use of the doctrine of executive privilege, and determined to arrogate to himself a total control over Federal spending decisions is a President seeking nothing less than the surrender of his adversaries. Congress cannot escape responding to these direct challenges to its authority.
TYRANNY OF SILENCE
The refusal of Secretary of State William P. Rogers and Presidential aide Henry A. Kissinger to discuss with key Congressional committees the status of war and peace in Indochina is, as Senator Fulbright has caustically observed, disappointing but "not unusual."
The present Administration has a long history of contempt for the right of Congress and the American people to be kept informed about its actions. This obsession with secrecy has been particularly marked since the United States walked out of the Paris peace talks last month and launched intensive bombing attacks against the Hanoi-Haiphong region of North Vietnam.
Why did negotiations break down? What justification can be offered for the "carpet" bombing of a heavily populated area? What developments led the President to suspend the enlarged aerial blitz on the eve of the new year? What are the issues in the talks which are scheduled to resume next Monday? Will Washington at last overrule President Thieu's persistent objections? What are Mr. Nixon's intentions if the renewed negotiations do not prove to be "serious," and what does the Administration mean when it demands "serious" talks?
Maintaining the aloofness of a Roman emperor, the President has not deigned to confide in the American people since his election eve boast that "I can say to you with complete confidence tonight that we will soon reach agreement on all the issues and bring this long and difficult war to an end." He did not consult Congressional leaders before ordering a major escalation of the war. He apparently has not even informed many high-level Administration officials of his plans.
Perhaps that is why Mr. Rogers refuses to meet with members of Congress. Maybe even the Secretary of State doesn't know what's going on.
This tyranny of silence is an intolerable perversion of the American democratic system. The self-serving sophistries from anonymous officials and low-level spokesmen that substitute for hard information only strengthen suspicions at home and abroad that the Administration has no adequate explanation for its actions. If the President will not take the people and Congress into his confidence, then Congress must act alone to end this war.
AND OF DECEIT
Pentagon spokesman Jerry W. Friedheim hit a new low in official obfuscation yesterday when he conceded that "some limited accidental damage" was sustained by Hanoi's Bach Mai Hospital during the recently suspended United States aerial blitz. Mr. Friedheim said that information indicating damage to the hospital had reached him after he had denied any damage on Dec. 27 and again on Dec. 29.
On Dec. 25, however, this newspaper carried the following dispatch from Telford Taylor, professor of law at Columbia University and a retired brigadier general who was chief prosecutor at the Nuremberg war crimes trial. General Taylor, who was then visiting Hanoi, wrote:
"Early this morning, the large Bach Mai Hospital was destroyed. The hospital grounds were torn by huge fresh craters and the buildings that escaped hits were shattered by blasts.
"Viewed a few hours later, the hospital remains were a terrible scene, with rescue workers carrying patients piggyback, cranes and bulldozers and people using only their hands desperately clearing debris to reach victims said to be still buried in the rubble, and the frantic hospital director running from one building to another."
This "limited" damage, Mr. Friedheim has the temerity to suggest, may not have been caused by American bombs at all but by "North Vietnamese ordnance or aircraft."
Is it any wonder this Administration has a credibility problem?