July 20, 1973
Page 25081
Mr. MUSKIE. I yield myself 5 minutes.
Mr. President, I oppose, with some reluctance, the amendment of the distinguished Senator from Missouri (Mr. EAGLETON) to broaden the definition of "Armed Forces" beyond the original intent of the war powers bill.
Senator EAGLETON's amendment would bring under the provisions of this act–
Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country.
The purpose of this amendment – a purpose which under other circumstances I would strongly support – is to give the Congress greater control over the paramilitary activities of the Central Intelligence Agency. The secret war in Laos has been an instructive example for us all. The fundamental and original mission of the Central Intelligence Agency was to provide our Government with adequate intelligence to protect our Nation's security.
This purpose has now been expanded to include a range of dubious covert activities up to and including the secret war in Laos.
I believe it is urgent for Congress to review very carefully the role of the Central Intelligence Agency and to scrutinize the adequacy of existing legislation concerning the CIA. I am pleased, therefore, that Senator STENNIS has indicated that the Armed Services Committee, which has jurisdiction over the Central Intelligence Agency, will conduct a thorough review of these matters. Questions as to the proper role and function of the CIA and where the line should be drawn between legitimate and illegitimate activities are extremely important and delicate – and they should be examined as thoroughly as possible. I think we need new legislation to define more strictly CIA functions and to insure a sufficient congressional role in overseeing and controlling CIA activities.
Such a review should take place in accordance with the normal legislative procedures of the Senate. I do not believe it is appropriate to raise this matter on the floor in connection with this particular bill. The war powers bill has been in the making for several years. All its provisions have been thoroughly considered and debated in public hearings, in committee, and on the floor of the Senate. Broad Senate support for this bill – across party and ideological lines – has been built upon a delicate balance of interests and concerns. I do not think it is wise at this late date to consider a major new provision to this bill which now comes almost as an afterthought to several years of intense deliberation.
The distinguished Senator from Missouri has made an invaluable contribution to the writing of the war powers bill from the beginning. As a principal author of this bill, his views deserve particular consideration and respect. I am in accord with his broader purpose in proposing this amendment, but I disagree simply with his tactics in offering it to this bill.
As for the amendment to the bill, I should like to see the bill supported by the Senate today so strongly as to give pause to the President if he considers a veto. So I should like to see maximum support mobilized behind it for that reason, and preserve the bill as it is, rather than to jeopardize it with a major change at this time.
I yield to the distinguished Senator from New York (Mr. JAVITS) such time as he may need.
Mr. JAVITS. Mr. President, like the distinguished manager of the bill (Mr. MUSKIE), I have given most respectful thought and attention to the amendment which the Senator from Missouri (Mr. EAGLETON), one of the principal sponsors and architects of the bill, has proposed.
I must oppose the amendment for the reasons stated by the Senator from Maine (Mr. MUSKiE), which I endorse, and also for certain other reasons which are inherent in the problems raised by the amendment.
I wish to recall to the Senate that this bill has been properly put before the Senate previously and again now, not as changing this body's constitutional authority, not, indeed, as changing substantive law, but as a methodology in an area where no methodology has existed before, and where, as has been argued, the rough interplay of political forces is supposed to bring about some kind of rough resolution of what was unforeseen in the Constitution. I believe the best hope for this legislation resides in keeping it as a methodological bill.
The methodology of the bill is of profound importance to our Nation; procedure – or "due process" – is the bedrock of freedom and democracy. At the same time our methodology is "neutral" on the substantive issues which are to be considered and decided in terms of the "due process" we are establishing by this legislation. In effect, we are herein establishing that our Nation can be taken into war only through "due process." This is a major reform, in light of the experience of the last decade. It is a major new protection for our citizens, just as the protection of "due process" is for them with respect to criminal law, et cetera. Some of our colleagues wish to write in substantive policy proscriptions on sensitive issues – usually the still raw issues of the past decade. As much as I may, and do agree and sympathize on the substantive questions, they are not appropriate in a bill which is establishing methodology, or due process with regard to going to war.
Regretfully, because I happen to agree with the Senator from Missouri and the Senator from Maine, these arguments, factual policies, and declarations, involving what are called the continuum, in short, which little incidents lead to war, find no place in the bill, because this is a substantive question. It is not a matter of establishing a method by which both Congress and the President may exercise their constitutional authority.
Rather, the amendment goes to the causes of war and what brings them about, in an effort to abate those influences or to abort, in its infancy, a situation which may lead to war.
That is the essence of my position. There are other points which are practical in nature; but essentially I think the gift which we all brought to the bill was to keep it methodological. The fact is that if the Constitution had anticipated the situation as it has now developed, Presidents would not have done what they have done, in my judgment, for almost 200 years. Congress would not have permitted its war power to be eroded and we would not have the situation that arose in the Vietnam war. With respect to the Gulf of Tonkin, in which Congress had joined, there was a dispute over the resolution whereby the President was given a general power of attorney, as it were, when the Congress thought it was giving a limited, specific power of attorney with respect to a particular incident alone.
One big fallacy creeps into the arguments of so many opponents, including the Senator from Arizona (Mr. GOLDWATER). They have an idea that the only way Congress can "declare war" is by passing a "declaration of war" resolution in both Houses of Congress some dark and tragic afternoon which says, "We hereby declare war on Hitler's government." Not at all. There is no such provision in the Constitution that so limits or specifies the power to declare war. We can exercise it any number of ways, so long as we do so by law.
These are reasons why it was necessary to define by methodology how we should exercise our power and the President should exercise his power. This has emerged as an unsettled question in the twilight zone of the Constitution, which we no longer wish to leave to the interplay of political forces.
However desirable the Eagleton amendment may be on substantive, policy grounds, it is out of place in this bill. The Armed Services Committee – and here the Senator from Mississippi (Mr. STENNIS) is on impregnable ground because the Committee on Armed Forces does have jurisdiction – should take it up as substantive legislation. If this amendment should become part of the war powers bill because the Senate thought it desirable to go with the Eagleton amendment, it would complicate the question of conference, as to putting together a conference Committee on the part of the Senate which would be truly representative of those with the greatest expertise and the appropriate committee of authority in the CIA field.
The Senator from Missouri (Mr. EAGLETON) has already won a considerable victory in that the Senator front Mississippi (Mr. STENNIS) said in his letter that he is sympathetic to the thrust of the Eagleton amendment; that he is considering and the Committee on Armed Services will work up some way to deal with CIA, based on the revelations we have had. The Eagleton amendment undoubtedly will have very high priority consideration, as it should.
Mr. President, as to the text of the Eagleton amendment, now we become lawyers and take a look at it. Here again, there are problems.
I would like to point out the defined parameters of the Eagleton amendment:
Any person employed by, under contract to, or under the direction of any department or agency of the United States Government.
That could include almost anyone; it is not confined to the CIA. Indeed, it is difficult to say what the limits of its coverage may be. Later on, I will explore whether it would cover foreign nationals, and particularly foreign nationals who may be covert intelligence agents of the United States. For instance, would Colonel Penkovsky, who was a member of the Soviet military and who provided so much key intelligence to the CIA right out of the Kremlin, the Soviet General Staff, would he have been covered?
Lots of things lead to war. A man on horseback may lead to war; national hatred could lead to war; anything could lead to war. We cannot deal with all those subjects in this bill.
Another important consideration is that outside the Armed Forces that was[sic] are covered by the bill, there is no agency of the United States which has any appreciable armed forces power, not even the CIA. They might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war. Even in the Laotian war, the regular U.S. Armed Forces had to be called in to give air support. The minute combat air support is required you have the Armed Forces, and the bill becomes operative. A key control which would not be reached by this amendment even if it could, would be control of the use of money. The fact is that vast sums of money were given to Vang Pao in Laos to pay for the mercenary Meo army. The use of Air America, which was a logistical operation, and not a combat operation, presumably would not be reached by the amendment alone; it was a key factor in CIA involvement in the secret war in Laos.
Finally, one point of draftsmanship.
It will be noted the amendment starts out with the language, "Any person employed by." That includes a foreign person, as well. There are many clandestine agents who are foreign and employed by, in the sense of being financed, maintained by, and directed by Department of the U.S. Government, which is one of the facts of life. Are they covered by this bill? If they are clandestine agents who are members of foreign armies does this amendment apply? Suppose a member of the Soviet or Chinese, or Vietcong armies is a CIA "controlled American source," does this amendment apply if his unit goes into hostilities?
Substantive law can determine what activities can be engaged in with respect to foreigners in terms of pay, and so forth. Law can determine that, but it is hardly a methodology. You would be dealing there with substantive approaches to the law. Shall the United States employ foreign citizens for these purposes? If it does, in what manner, and how are they controlled, and so forth?
Again, this is beyond the ambit of this bill.
The matter was so eloquently and precisely put by the Senator from Maine (Mr. MUSKIE) in what he said in respect of the amendment. It simply does not fit within this context, and considering the historic nature and importance of the context we should not burden it with substantive questions which in addition to all other points made are within the jurisdiction of another legislative standing committee, to wit, the Committee on Armed Services; and where we are not faced with any question of avoiding the issue, but have the word of a man whose word rings as true around here as that of any Senator of the United States, and that is that he proposes to deal with the question.
One other point which is interesting: I, too, have talked with the Senator from Mississippi (Mr. STENNIS) at length. He was very reluctant to make this expression on this particular amendment, because he felt that he wanted no feeling here in the Senate that he was trying to have his voice carry Senators when he was far away from us. He, too, like everybody else, wanted to be subject to debate and cross-examination. But I think the Senator from Maine (Mr. MUSKIE), and I prevailed on him to feel that as he had used his privilege very sparingly and he had this bill so close to his heart, this was a measure in which that was deserved, and I am glad to say he acted accordingly.
Mr. MUSKIE. Mr. President, I yield myself 2 minutes.
Reference has been made to communication with the Senator from Mississippi (Mr. STENNIS), and as the Senator from New York (Mr. JAVITS) has explained, the Senator from Mississippi was very reluctant to appear to be trying to influence votes here when he could not participate personally. But we prevailed upon him, and I take the opportunity to read that letter into the RECORD
JULY 19, 1973.
Hon. EDMUND S. MUSKIE,
U.S. Senate,
Washington, D.C.
DEAR ED: If I could be on the Floor, I would support you fully as you push for the passage of the War Powers Bill, as reported by the Foreign Relations Committee, without further amendments of any substance.
One amendment of substance is by the Senator from Missouri, Mr. Eagleton, who has done much work and has made a fine contribution to this important bill as it now stands. This amendment has a prohibition of using the C.I.A., or its funds, in war activities of the type we have used in Laos. The experience of the C.I.A. in Laos, as well as more recent disclosures of matters here at home have caused me to definitely conclude that the entire C.I.A. Act should be fully reviewed.
Accordingly, I already have in mind plans for such a review of the C.I.A. Act by the Senate Armed Services Committee and have already started some staff work thereon. All proposed changes, additions or deletions can be fully developed and hearings held thereon at that time. I have already completed, but have not yet introduced some amendments of my own. The proposal by the Senator from Missouri, Mr. Eagleton, to explicitly prohibit any action by the C.I.A. of the type we have had in Laos, or any other activity of that kind could and would be fully considered by the Committee at that time. I could support some major points in that particular amendment as a part of a bill on the subject, but fully oppose the amendment presented as a part of the War Powers Bill.
The bill now before the Senate, as finally written and improved by the Foreign Relations Committee is an excellent bill and is confined to the Constitutional subject of actually committing the nation to war.
I believe this bill, if confined to its proper subject matter will pass the Senate by a large vote and will emerge from the Conference Committee as a bill with meaning. There are reports, which I hope are erroneous, that a veto is in prospect if this bill passes. If so, I feel so strongly that a meaningful bill relating to the War Powers, and the responsibilities of the President and the Congress, should be passed, and I would strongly urge that that bill pass, the veto notwithstanding. If we clutter the War Powers Bill with other matters we would probably kill what is otherwise a good chance to override a possible veto.
Again, I certainly wish you well, and. hope the Committee bill in its present form can be preserved and passed and passed by a large vote.
Most sincere yours,
JOHN C. STENNIS,
U.S. Senator.
I think those who read this letter would agree that this is an extraordinarily strong commitment from the Senator from Mississippi. To have anticipated a veto, and to have indicated with such vigor his intention to press for an override, I think is the kind of action the Senator from Mississippi would rarely take. It is because of his voice, and that of the Senator from New York, and my own understanding of the forces that went into putting this bill together, that I reluctantly oppose the amendment of the distinguished Senator from Missouri.