July 18, 1973
Page 24544
Mr. EAGLETON. If we fail to delineate the limits of the President's emergency power, then we invite the President to continue to define that power any way he sees fit. The President, Congress, and the American people must understand the legitimate role of the Commander in Chief – and they must understand that that role does not include taking unilateral military action when there is no emergency threat to the United States, its forces or its citizens.
Should the President exercise his emergency powers, the struggle between him and Congress will be for public support. If the sole issue of the public debate which ensues is the President's policy, then contemporary experience shows that the President will inevitably win his battle. It is to check this tendency that this legislation insists on codification. The more simple and easy to understand signposts that Congress can hold up for public inspection, the more likely it will be that Congress can prevent a President from usurping its powers – and the more likely it will be that Congress can stop him, if he acts illegally.
No matter how tightly we circumscribe the Commander in Chief's emergency role, however, we should not satisfy ourselves that that role would never be abused. Even if Presidents executed the provisions of the War Powers bill in good faith, it would still be possible for them to use the discretion they retained as Commander in Chief to move our Nation from a defensive conflict to an offensive one. Whether this occurred inadvertently or not, Congress must possess the legislative mechanism that would enable it to protect its own prerogatives.
Congress alone must decided whether we will enter an offensive war. And Congress alone must have the means to stop a President when he moves beyond the strictly defensive powers he derives from the Constitution.
Some have argued that the power of the purse would, in itself, be sufficient to protect Congress right to declare war. In other words, if the President entered an offensive war without the consent of Congress, we could then cut off funds for that war and thus impose our will.
The only practical way Congress can use its power of the purse, however, is to cut off funds for a particular conflict in a bill which affects the operation of Government far beyond the money expended for the conflict. If we were forced to depend upon such an absolute mechanism, we would constantly be going to the brink of governmental crisis in order to effectuate our constitutional prerogatives. Far more flexibility than that was built into the Constitution and the bill we propose today will offer an alternative to the type of crisis situation with which we were recently faced over the issue of Cambodian bombing.
To impose the will of Congress, therefore, we have chosen to limit the President's emergency powers in a quantitative manner by requiring congressional approval within 30 days if he wishes to continue his action. If such approval is not forthcoming, then the emergency action must be terminated automatically – the only exception being that the President would have the right to protect our forces in the process of disengagement.
The choice of 30 days has been criticized by some as too short and by others as too long. Admittedly it is an arbitrary period, but both these arguments can be answered by the same procedural explanation.
The passage of our bill will provide a constant warning not to give away the fundamental power of Congress even in a period of crisis. When Members of Congress are statutorily forced to uphold their responsibility, I expect that they will be very leery of either delegating it away too soon or allowing it to be abused by improper Presidential action.
If, therefore, Congress feels a longer period is needed to consider the President's request it can extend the authorization period for as long as it wants without ever losing control of the decision to declare offensive war. If, on the other hand, the President has clearly and blatantly abused his emergency authority, Congress may act to stop him immediately, even before the 30-day period is completed.
Mr. President, it is unfortunate that we in Congress, and Americans in general, have a tendency to overlook serious situations until they erupt into a crisis. There should be little doubt by now that the gradual erosion of congressional war powers has grown to crisis proportions. If we fail to act now, after the horrors of Vietnam have so clearly exposed the danger of individual war-making, we may never again see the questions of war and peace being decided by the sobering and deliberative processes inherent in the concept of collective judgment.
Mr. MUSKIE. Mr. President, I should like to take a moment to express my appreciation to the distinguished Senator from Missouri as well as the distinguished Senator from New York (Mr. JAVITS) for the leadership they have shown in developing the proposed legislation which I have the privilege to floor manage and support.
It is relatively easy today to be for this concept and to be for this formula to deal with the problem. At the time the Senator from Missouri and the Senator from New York – and, I might add, the Senator from Mississippi (Mr. STENNIS) – initiated this whole effort, the area was uncharted, the formula was undefined, and the objective was vaguely connected with our frustrations and dissatisfactions in connection with the war in Vietnam. But out of that effort in that period has come what I think is a remarkably creative and innovative approach to the problem of redressing the imbalance between Congress and the President with respect to the war-making power.
I simply wanted to take a moment to commend the distinguished Senator from Missouri for the role he has played over these years.
Mr. EAGLETON. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. EAGLETON. I am deeply grateful to the distinguished Senator from Maine (Mr. MusKIE) for the complimentary and laudatory remarks he has just uttered. I am very pleased, on behalf of the majority, as a member of the Committee on Foreign Relations, that he has agreed to floor manage this bill; because in the minds of the Senators he mentioned – JAVITS, STENNIS, and EAGLETON – this is a significant piece of legislation, to use the word of the Senator from New York, an historic piece of legislation. The prestige and the ability of the Senator from Maine as the floor manager thereof enhances its chances of ultimate success. We are very grateful to him for this willingness to participate in this matter.
Mr. MUSKIE. I thank the Senator from Missouri.
Mr. President, I ask unanimous consent to have printed at this point in the RECORD a statement by the distinguished Senator from Mississippi (Mr. STENNIS) on this bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
STATEMENT BY SENATOR STENNIS
It is with hope, pride, and strong convictions that I submit this statement in support of S. 440, the War Powers Bill.
First of all, I hope to see the efforts of Senator Javits, Senator Eagleton, former Senator Spong, myself, and others, finally bear fruit in the form of a law of the land. I have been personally involved with this legislation for two years, having introduced a war powers bill in 1971, testified at the Senate Foreign Relations Committee hearings, and cosponsored the bill that passed the Senate last year. This year I submitted a statement to the Foreign Relations hearings favoring war powers legislation. It is time that we placed legislation on the books on this matter. The American people expect and are entitled to an expression from the Congress on this important and sensitive subject.
The Senate passed the war powers bill last year by a vote of 68-16, and is on the way to another historic vote on the same bill, I believe, as S. 440 has over 60 cosponsors. The House is now debating a bill which, though different from the Senate bill, would move in some measure to restore the proper constitutional balance between the Congress and the Executive in the area of war powers. It is my hope that the House and Senate will be able to agree on a strong bill that will clearly define the powers of the Congress and of the Executive.
I am proud to support this bill because it is an important step by the Congress to assume its duty in representing the people of this nation. The discussion of this subject of war powers often focuses on rights. But it is far more important that we see that if this bill becomes law it will signal that the members of Congress are willing to assume a heavy duty – the duty to use their best judgment and to share with the President the responsibility for the most important decision a nation can make, the decision of whether or not to go to war.
The Congress – and this includes me – has, in the past, sometimes allowed the Executive branch to decide the major question of whether or not this country will go to war. Under our Constitution, that is a question for the representatives of the people to decide. As a practical matter, the President will always have a major role in helping the Congress decide the question. But the final responsibility rests with the Congress.
We have learned in very recent history that a war, if not supported by a majority of the people, can lead to damage of the national spirit, less tangible than loss of men and resources, but ever more important.
It is of the utmost importance to the future of this nation that we not again slip gradually into a war that does not have the moral support and sanction of the American people.
I do not believe that we will be able to check this tendency in the future without taking legislative action. The Constitution itself shows us the way to do this, by establishing a mechanism, under the necessary and proper clause, for Congress and the President to exercise their responsibilities together. Unless this is done, the precise scope of responsibility will remain unclear, and Congress will again some day fail to live up to its responsibilities. I believe that Congress must define and establish procedures for the exercise of responsibility in a declarative and binding fashion before it can effectively resume the exercise of that responsibility. I am supporting S. 440 because I believe it is the best way to establish such a framework.
The teeth in the legislation before the Senate today is in the delineation between those circumstances in which the President can first act unilaterally, and those in which prior authority by Congress is required before armed forces can be used. In most cases in which use of the country's armed forces is contemplated, the President would be required to come to Congress for prior authority under Section 3(4) of the bill. The authority of the President to use the armed forces without prior congressional approval is recognized in the event of armed attacks upon the United States or its forces, and in the event such use is required to evacuate American citizens from danger abroad. Some say that the specific delineation would constrain a President in the conduct of our foreign affairs. I believe that the constraints in the bill are flexible, but that they are still definite enough that it will be more difficult for a President to take some types of military actions unilaterally than would be in the case if the bill were not law. He would have to take into consideration the Congress and the people it represents before involving the nation in war, and, consequently, a certain element of caution would be introduced into his thinking.
Restoring a proper share of responsibility to Congress will by no means ensure its wise exercise. There is no assurance of wisdom in Congress any more than in the Presidency. As Professor Alexander Bickel has said, "the only assurance there is lies in process – in the duty to explain, justify and persuade, to define the national interest by evoking it, and to act by consent."
Enactment of the war powers bill will not be a panacea, but it will, I believe, realign the workings of this government with the Constitution that created it. It will reduce the chance that this nation will again go to war without unity; without an expression of national will through Congressional authorization. It will start us back along the right path. We are just emerging from a long war that has been expensive in every major way, loss of life, physical injuries and staggering money costs.
The results have been far from satisfactory, and worse still, our people have been divided. It was an undeclared war. Even though the war was undeclared and the people were divided, we had such a strong reservoir of patriotism in the minds and hearts of our people, we were able to hold together and endure. We will not be able to do this again. I believe that the people will not again support a war that Congress is unwilling to declare. During the two hundred years that we have been blessed to live as a nation, naturally many legal points have arisen that found their way to the courts that concern war or some phases of it, or incidents. There needs to be a clarification of these precedents, many of which conflict. What we need is a restatement of the law on the subject in the context of our time. This is exactly what this bill does; and it stands on that clause of our Constitution which provides: "The Congress shall have the power ... to declare war."
Mr. MUSKIE. Mr. President, it is appropriate that the statement by Senator STENNIS appear at the forefront of this debate. We all regret that he cannot be here to deliver this statement and to lend his support to the floor debate.
We are all heartened by the news of his progress and his improving health. I had the pleasure of talking to him yesterday, and I must say that if the sound of his voice is any indication, he is approaching his customary vigor.
Mr. EAGLETON. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. EAGLETON. Mr. President, I ask unanimous consent that my staff member, Mr. Brian Atwood, have the privilege of the floor during the pendency at all times of the war powers bill, whether today, tomorrow, or the next day.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I ask unanimous consent that my administrative assistant, Maynard Toll, have the privilege of the floor during the consideration of this bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE. Mr. President, I yield 5 minutes to my distinguished colleague from Maine (Mr. HATHAWAY).
Mr. HATHAWAY. Mr. President, I thank my distinguished colleague from Maine for yielding to me at this time to speak on what I consider to be the most important issue to come before Congress in this session and perhaps in other sessions as well.
As we all know we have been trying for some time to come to some resolution of the war powers problem, as to just what the authority of the President shall be and what the authority of Congress shall be.
Last year or the year before, both the House and the Senate passed war powers bills, but we were unable to come to any agreement in conference. I am hopeful that the bill that we will ultimately pass in the Senate and the one that will be passed in the House will be close enough so that we will be able to come up with some legislation in this very important field.
Mr. President, the war powers legislation which we consider here today does not seek to alter the constitutional balance of power between Congress and the President; it simply seeks to restore it.
It seeks to restore it to a balance achieved by the framers of the constitution, but a balance since tipped, not by the conscious abuse of a wanton Executive, but by the encroachment of a series of well-meaning Executives onto an area of power ill-defined and, indeed, ill-recognized by most Members of past Congresses.
In the case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Mr. Justice Jackson spoke of a "zone of twilight" beyond the area of power rightfully belonging to the Executive; this is that area of power in which the President and Congress "may have concurrent authority, or in which its distribution is uncertain." This is the area of power, this "zone of twilight," through which the Executive has moved in its quest of the power to make war. This is the area in which the Executive would have the people believe lies the basis for the right to make war. And because the right to make war lies in this hazy area, the Executive, it is said, must be given a free hand, for today we live in a world of instantaneous and devastating attacks rather than the framers' world of foot soldiers and sailing ships. In today's world, the argument goes, this "zone of twilight" must be given over to the Executive, for only in that branch lies the special capacity for fast, efficient, and decisive response to a determined attack by an enemy.
But is that correct? Does this power to make war lie within the "zone of twilight" between the Commander in Chief and Congress? Or has the Executive already passed beyond that zone and into a zone that lies exclusively within the realm of Congress? In the view of James Madison, the issue was quite clear; and I read from his papers:
Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, the fundamental doctrine of the Constitution, that the power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the Legislature; that the Executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing Congress, whenever such a question seems to call for a decision, is all the right which the Constitution has deemed requisite and proper.
Even Hamilton, the great proponent of a strong executive branch, felt bound to say that the war power belongs to Congress.
This brings us to the purpose of the war powers bill. This purpose is not to encroach on the power of the executive branch, or even to limit that power, but to define that power, to make it abundantly clear to the people and to the President that in this area there is no "zone of twilight," that, as James Wilson, who with Madison was the great architect of the Constitution, said:
No single man (can) ... involve us in such distress.
Yet, Congress is aware of the exigencies of the modern world. Indeed, Mr. President, the purpose of this bill should not be seen as an effort to limit the Executive power, but an effort to legitimize that power when it is used to deal with the emergency situations that can arise in our modern world of rockets, bombs, and nuclear warfare.
Mr. President, the war powers bill is not a tipping of the balance in favor of Congress; it is a reestablishing of the balance outlined in the Constitution, but it is a reestablishing of that balance in keeping with the necessities and requirements of the modern world. It is a bill to make clear to a future Executive that he is authorized by Congress to act in a situation of real emergency, but if he should try to move from that emergency situation into a nightmarish situation of war without the consent of Congress, not only will he have to abuse the Constitution; he will have to violate the mandate of law.
I thank my good friend, the senior Senator from Maine, for yielding to me this time to speak on this very important matter.
Mr. MUSKIE. I thank my distinguished colleague from Maine.
Mr. President, I now yield 10 minutes to the distinguished Senator from Texas (Mr. BENTSEN) who also has been one of the leaders in the development of this legislation.
Mr. BENTSEN. Mr. President, I thank the distinguished Senator from Maine. I appreciate the leadership he has exercised on one of the most fundamental issues that we face today.
I am pleased again to join with my distinguished colleague in support of the war powers bill which I fervently hope is going to pass in this session of Congress.
At a time when we have nuclear energy, atomic weapons, atomic missiles and laser beams, there are those who say, "Is there a place for representative government in this type of decision-making? Is there time for a consensus type decision? Is there a place for a people's branch in arriving at this type decision?" I think fundamentally there is because there is no more important decision that affects this Nation than whether or not our sons go to war. We are all aware of the erosion of the balance of powers within our Government.
I know there are those who would try to say that the balance of powers is really not an efficient form of government; but I would quote the comments of Justice Brandeis when he said that the convention of 1787 really was not striving for the most efficient form of government, but by setting up the three branches of government but was trying to insure that we would not have an arbitrary exercise of power.
This has been the subject of considerable discussion of late and indeed of recrimination. But let me point out that it is not entirely the fault of the Executive. Congress, to a large degree, has not only stood silently by and watched its powers erode; it has also actually given its authority away and acquiesced in various executive actions tending toward usurpation of congressional prerogatives. The Gulf of Tonkin resolution and our present involvement in Vietnam are examples which leap immediately and tragically to mind.
We must now repair this erosion of the delicate executive-legislative balance in order to restore respect for the very institution of government. It is not just the balance of power that is vital to our survival as a democracy; we must restore a balance of trust. There will be and there should be disagreement between the President and the Congress but there need not be distrust.
The fact that a policy is carried out in secrecy and remoteness does not necessarily insure its success. The public business must be conducted in an atmosphere of mutual respect and confidence that will in turn inspire the respect and confidence of every citizen.
If we are going to understand why a decision is made and make intelligent contributions through the legislative process then we must be informed and we must have access to the policymakers who are responsible in the executive branch. This will not only insure public understanding but greater public support as well.
As a step toward restoring the peoples shaken confidence in its representative institutions, I suggest that Congress assume its responsibility to the electorate and indicate that we are prepared to meet our constitutional obligations in the formulation of foreign and domestic policy. We will not leave vital decision-making solely to the Executive, whether through default, inefficiency, lack of will or Executive usurpation.
There are those who have said if we had been faced with the issue of war or no war in South Vietnam, the Senate, Congress would have gone along. That may be the case, but what the war powers measure would do would be to say that the Senate, Congress must face that issue squarely; that a Member will not be able to waffle his position; that he will have to bite the bullet and decide if he is voting for America's sons to go to war or not. The Founders of this country came here with the idea that no one man, no matter how wise or benevolent he might be, could decide whether or not his son went to war, that this must be the collective judgment of the representatives of the people.
When Congress exercises its rightful powers and meets its full responsibilities, when it insists on full deliberation and sharing in decisions – that is, if the proper constitutional procedures are followed – the democratic process is strengthened. We must not allow a growing lack of confidence in the institutions of democratic government to call into question the viability of these institutions. We have a fundamental obligation: To keep our Government strong and make our Nation whole again.
It is imperative that we insure that responsibility for future foreign policy decisions be shared.
Democratic government "derives its just powers from the consent of the governed."
It is a question of communication between the executive branch, between cabinet officers and Congress if we are to make the system viable. If the people do not know what the decisions are or what the processes of decision-making are, then the Executive is not held accountable. The momentous decisions of war and peace must be made by the elected representatives of the people.
In the words of Woodrow Wilson we must insist upon: "Open covenants ... openly arrived at" if we are to protect our democratic processes.
This proposed legislation does not challenge the President's authority as Commander in Chief nor his constitutional right to conduct the war in the way he sees fit. It does not intend to tie the President's hands for we realize that there are emergency circumstances under which a President may have to respond in defense without explicit congressional approval, and this bill so provides.
But the Congress would be negligent of its own constitutional responsibilities if it relegated to one man the decision to send our sons to war. What confronts us is one of the most significant questions to emerge from the continuing debate over the Indochina conflict: The question of who decides when and where America goes to war. There is little question that Congress is vested with the sole right to initiate war. This is clearly spelled out in article 1, section 8 of the Constitution. We must never again permit an extended commitment of American lives to be made unless the representatives of the people explicitly authorize it.
Assumption of congressional responsibility is a burden we must pick up again for without it the institutions of government will remain in disrepute. The democratic process is at stake. It cannot thrive under a strong executive with a weak legislature any more than it can thrive when the executive falters and the legislature dominates. The constitutionally guaranteed balance between the executive and legislative branches in the making of foreign policy is delicate and we must make special efforts to strengthen it, thereby reaffirming the belief of the American people and the world in the efficacy of our particular form of government.
Assumption of our responsibility in the foreign policymaking process is a burden we in Congress must pick up again. I believe Congress has awakened to the dangers inherent in the current imbalance between the executive and the legislative branches.
Mr. President, I am convinced that the war powers bill is one of the most needed pieces of legislation that this Senate will consider this year, and I am most pleased to be joining with the distinguished Senator from Maine, who is handling the bill on the floor.
Mr. MUSKIE. Mr. President, I yield myself 15 minutes.
The PRESIDING OFFICER. The Senator from Maine.
Mr. MUSKIE. Again, Mr. President, I would like to compliment the distinguished Senator from Texas. I must say I am proud to be standing with him on this issue. From working closely with him on other matters in the Senate, I know that the kind of effort he is capable of producing augurs well for the future of this legislation, as well as for him.
Mr. BENTSEN. I thank the Senator.
Mr. MUSKIE. Mr. President, the purpose of the war powers bill, S. 440, as explained by the report of the Foreign Relations Committee, is not to alter the Constitution, as executive branch officials profess to believe, but to restore and fulfill the intent of the Constitution in matters of war and peace. The essential purpose of the bill is to define – more exactly to reaffirm – the constitutional authority of Congress to decide whether and when our country will go to war. In no sense is this legislation intended to encroach upon or to detract from the authority of the President as Commander in Chief, including his authority to repel attacks upon the United States or its Armed Forces.
It is sometimes contended that declarations of war are obsolete in international practice, and that because they are, the power of Congress to "declare" war is also obsolete. This argument is spurious. The framers of our Constitution did not confer upon Congress a power to use those magical words "declare war" and no others; the power they conferred upon Congress was to decide whether or not, and under what circumstances, the United States would make war upon another sovereign nation. A leading student of the war power has written:
It was not a special license to use the word "declare war" that the Founding Fathers gave to Congress. Rather it was the full, red-blooded reality of deciding that another country is our enemy and that war – any form of war – should be levied upon it. The power is not basically changed or diminished because current circumstances call for a different method of using it when necessary.
Nor is the war power in the slightest degree ambiguous, as advocates of Executive latitude profess to believe. The framers of the American Constitution were neither hesitant nor vague in their conferral of the war power upon Congress. The reasoning of the Founding Fathers is a matter of historical record: dismayed by the arbitrary power of the British Crown to drag the American Colonies into unwanted wars, they vested the authority to initiate war in the Legislature, transferring that power, as Jefferson put it, "from those who are to spend to those who are to pay." In testimony before the Foreign Relations Committee in support of S. 440, Prof. Raoul Berger of the Harvard Law School stated:
The power to wage war, it may be categorically asserted, was vested by the Constitution in Congress, not the President.
Said Professor Berger with reference to the current legislation:
If this be so, your bill merely seeks to restore the original design. It cannot be unconstitutional to go back to the Constitution.
I. WHAT THE BILL PROVIDES
The war powers bill, S. 440, makes ample provision for Presidential use of the Armed Forces in a national emergency. Section 3 of the bill defines the emergency conditions in which, in the absence of a declaration of war by Congress, the Armed Forces of the United States may be introduced in hostilities, or in situations where imminent involvement in hostilities is indicated by circumstances. The conditions under which the President may make such emergency use of the Armed Forces are defined with a view to reconciling modern conditions of warfare and politics with the intent of the framers of the Constitution. These emergency conditions are quite simple. They are:
First, to repel, retaliate against, or forestall an armed attack upon the United States, its territories and possessions;
Second, to repel or forestall an armed attack against the Armed Forces of the United States; and
Third, to protect American citizens and nationals while evacuating them as rapidly as possible from any country in which their lives are endangered.
It is important to specify these conditions in advance. If the President is given a general authority to use the Armed Forces for a period of time in any condition he considers to be an emergency – as is done in the House bill – the legislation loses most of its teeth.
The bill goes on to specify – in subsection 4 of section 3 – that the President may otherwise use the Armed Forces only "pursuant to specific statutory authorization;" but authority to use the Armed Forces is not to be inferred from any provision of law, including appropriations, unless such authority is explicitly provided. It has been argued – and at least one lower court decision has ruled – that appropriations for military operations constitute implied approval of an act of war in which the President may be engaged and, therefore, serve as authorization for its continuation. The bill rejects this view. The "approval" implied by an appropriation for the Department of Defense as a whole is no more an authorization for a specific war than is the appropriation to pay the President's salary. In the words of a noteworthy article published in the June 1968 edition of the Harvard Law Review:
The more blatant the fait accompli which forces Congress' hand, the less should exercise of its power of appropriation be taken as "consent" to the action. Even where there is no fait accompli, if the power over appropriations had been thought a sufficient safeguard against Presidential war making, it becomes difficult to understand why the framers were so concerned about withholding the war power from the executive in the first place.
Subsection 4 of section 3 specifies that no treaty, existing or future, may be construed as authorizing use of the Armed Forces without implementing legislation. The treatymaking power has been held not to extend "so far as to authorize what the Constitution forbids." This limitation is properly construed as preventing the President and the Senate from exercising by treaty a power vested elsewhere by the Constitution. The President and the Senate could not, for instance, use the treaty power to abridge the Bill of Rights; nor can a treaty be used to abridge the war- declaring power, which is vested not in the Senate alone, but in both Houses of Congress. The framers of the Constitution considered and rejected the possibility of vesting in the Senate alone the power to declare war. That power was deliberately vested in the Congress as a whole; a decision to initiate war must be made by both the Senate and the House of Representatives and cannot, therefore, be made by treaty. None of our existing treaties in any case require automatic military action. All specify that, in the event of an armed attack, each signatory will act in accordance with its constitutional processes – which means, in the case of the United States, that the matter must be referred to Congress.
Section 4 of the war powers bill specifies that any emergency use of the Armed Forces shall be reported promptly in writing by the President to the Speaker of the House of Representatives and the President of the Senate, together with a full account of the circumstances and authority under which action was being taken and its projected scope. The President would be further required to make periodic reports on any military action outside of the United States, and in no event less often than every 6 months.
Along with section 3, the heart and core of the bill is section 5, which provides that the use of the Armed Forces under any of the emergency conditions spelled out in section 3 shall not be sustained for a period beyond 30 days unless Congress adopts legislation specifically authorizing the continued use of the Armed Forces.
Section 6 complements the restriction spelled out in section 5 by specifying that Congress may terminate a military operation prior to the end of the 30-day period by act or joint resolution.
Serious constitutional questions are presented by attempting to provide for such termination by a simple concurrent resolution, as is provided in the House bill.
Section 7 spells out mandatory procedures for expeditious action within the committees and on the floor of both Houses of Congress with respect to any legislation authorizing the continued use of the Armed Forces beyond the 30-day period of the President's emergency powers. The purpose of this section is to eliminate the risk of dilatory tactics to prevent or delay a congressional decision with respect to the use of the Armed Forces.
Section 8 contains a separability clause, specifying that, if any provision of the bill should be held invalid, the remainder would not be affected thereby.
Section 9 specifies that the bill would take effect on the date of its enactment but would not apply to hostilities in which the Armed Forces of the United States were involved prior thereto. The effect of this provision would be to exempt current military operations in Indochina from the application of the war powers bill.
II. THE PURPOSES OF S. 440
The war powers bill is properly regarded as legislation which should not have been necessary, and would not have been necessary if Congress and the President had remained within their respective constitutional spheres.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. MUSKIE. Mr. President, I yield myself another 5 minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized for another 5 minutes.
Mr. MUSKIE. Mr. President, three decades of total war, limited war and cold war have propelled the American political system far along the road to executive domination in the conduct of foreign relations. So far has this process of expanding Presidential power in foreign policy advanced that, in the Foreign Relations Committee's publicly recorded view:
It is no longer accurate to characterize our government, in matters of foreign relations, as one of separated powers checked and balanced against each other.
It serves no useful purpose to recriminate over how and why the power to initiate war passed out of the hands of Congress and into the hands of the President. To some degree it was the result of Presidential usurpation; to some degree it was the result of congressional lassitude and unquestioning support of Presidential leadership. But most of all, it has been the result of war itself, and of these past three decades of constant crisis and disruption. Alexis de Tocqueville, that most astute of observers of American democracy, wrote:
War does not always give democratic societies ever to military government, but it must invariably and immeasurably increase the powers of civil government; it must almost automatically concentrate the direction of all men and the control of all things in the hands of the government. If that does not lead to despotism by sudden violence, it loads men gently in that direction by their habits.
All those who seek to destroy the freedom of the democratic nations must know that war is the surest and shortest means to accomplish this. That is the very first axiom of their science.
The committee report summarizes the steady growth of Presidential power over the years, a process which has been greatly accelerated over the last three decades. It suffices here to point out that, as matters now stand, the Congress exercises no more than a marginal influence on decisions as to whether the Nation will be committed to war. The purpose of S. 440 is to draw the Congress back from the periphery to the center of this most crucial area of decision-making.
To this end it is neither sufficient nor necessary for Congress to come to the Executive as a suppliant, pleading for and relying upon promises of consultation. Experience has shown that such vague reassurances are readily given but rarely implemented. If Congress is to recover its war power, it will have to do the job for itself – that is a certainty.
The view of the Executive – executives, I might add, of both parties – has been amply demonstrated in the course of the war in Indochina, which was preeminently a Presidential war.
For a time, the controversial and unlamented Gulf of Tonkin resolution provided at least a facade of constitutionality for the war. President Johnson himself, however, while maintaining that the Tonkin resolution was a valid authorization, also maintained that he needed no authorization. He expressed this view in a press conference on August 18, 1967, stating that the purpose of the Tonkin resolution had been to allow Congress to "be there on the takeoff" as well as on the "landing," although Mr. Johnson stressed, "we did not think the resolution was necessary to do what we did and what we're doing."
When the Tonkin resolution was finally repealed on January 12, 1971, the repealer went virtually unnoticed – clearly indicating its insignificance. The Nixon administration did not even bother to oppose the repeal of the Tonkin resolution, quite obviously because the President thought himself at liberty to pursue the war without it. The Nixon administration explained that it "has not relied on or referred to the Tonkin Gulf resolution of August 10, 1964, as support for its Vietnam policy."
Throughout the course of the Vietnam war, and especially after the repeal of the Tonkin resolution, the Nixon administration maintained that its authority to wage war in Indochina was based upon its obligation to "protect" the American troops that had been placed there by the Johnson administration. The general thesis of the Nixon administration was reiterated by Secretary of Defense Laird when he was asked on April 18, 1972, to explain on what authority the President had renewed the heavy bombing of North Vietnam. The Secretary answered:
It is the protection of the American personnel ... You don't need any more authority than that ... that is sufficient, complete and total ...
Now that the troops have been withdrawn, and the Tonkin resolution repealed as well, the administration has been forced to retreat to new and even swampier ground for the defense of its continuing air war in Cambodia. Its explanations to date can scarcely be dignified as legal arguments – they are more in the nature of evasions and rationalizations. Earlier this year, for instance, Assistant Secretary William Sullivan was unable to explain the legal basis for the Cambodian bombing, but he volunteered the information that "two lawyers" in the State Department were working on a new constitutional justification. Apparently confident that the "two lawyers" would cook something up, Mr. Sullivan added that "for now I would just say the justification is the reelection of President Nixon."
Attorney General and former Secretary of Defense Richardson has been equally at a loss to justify the bombing of Cambodia. When President Nixon withdrew the American ground forces from Cambodia, he said, on June 3, 1970:
The only remaining American activity in Cambodia after July 1 will be air missions to interdict the movement of enemy troops and material where I find that this is necessary to protect the lives and security of our forces in South Vietnam.
Reminded of this statement, Mr. Richardson could come up with nothing better than the assertion that the President now retained the authority to bomb Cambodia in order to clear up a "lingering corner" of the war. On a subsequent occasion Mr. Richardson told newsmen:
What we are doing in Cambodia is continuing to support our ally there against the continuing efforts to disrupt communications, to isolate Phnom Penh. We are engaged in air strikes only at the request of the Cambodian government.
The reference to Cambodia as an "ally" is interesting indeed, since we have no treaty of alliance with Cambodia and the Cambodian Government has repeatedly and emphatically refused the
protection of the SEATO treaty. No less puzzling is Mr. Richardson's implication that the request for air strikes on the part of this so-called "ally" somehow gives the President authority to take military action without authorization by Congress. Under this interesting interpretation of the law, it would seem that the Cambodian regime has supplanted Congress as the lawful warmaking authority for the United States.
Speaking on "Meet the Press" on April 1, Secretary Richardson was again asked to explain the constitutional basis for the bombing of Cambodia. He replied that he did not think it would be difficult to supply such an explanation – "unless you are looking for some line in the Constitution that deals specifically with this kind of situation." That, of course, is exactly what we are looking for and what we ought to be looking for – "some line in the Constitution that deals specifically with this kind of situation." The patent inability of the executive to come up with any semblance of authority for its continued military activities in Indochina is only the latest of a long series of unauthorized actions which point up the necessity for war powers legislation. For until Congress acts under the "necessary and proper" clause, to give more specific content to its own and the executive branch's responsibilities, this type of confusion will continue.
In the end, advocates of unrestricted Presidential war power are forced back upon the contention that the framers of the Constitution were uncertain and ambiguous about where they wished to vest the authority to initiate war. So Secretary Rogers contended in his presentation to the committee on May 14, 1971. So, too, the State Department memorandum of April 30 commends the framers of the Constitution for "leaving considerable flexibility for the future play of political forces." For my own part, I share the view spelled out in the committee report that the Constitution is not at all imprecise in allocating the war powers; on the contrary, the Constitution is quite specific – as the framers intended it to be – in giving Congress the authority to decide on going to war and in giving the President the authority, as Commander in Chief, to respond to an emergency and to command the armed forces once a conflict is underway. In brief, the Constitution gave Congress the authority to take the Nation into war, whether by formal declaration of war or by other legislative means, and the President the authority to conduct
it.
In order to restore this classical constitutional definition of authority, I commend to the Senate the adoption of the War Powers Act of 1973.
Mr. JAVITS. Mr. President, I yield myself 1 minute.
I should like to express my great appreciation to the Senator from Maine (Mr. MUSKIE), not only for his eloquence, but also for his erudite statement. He has not only gone to the extent of setting forth references, but has also explained them in careful detail, so that they may be carefully studied.
Also, I should like to express my appreciation to the Senator from Arkansas (Mr. FULBRIGHT), chairman of the Committee on Foreign Relations, for naming Senator MUSKIE to handle the bill on the floor of the Senate. His prestige and distinction as a Senator and a major leader in our country give added weight and import to the discussion of the bill which we are considering. This is essentially a matter of importance to me, as Senator FULBRIGHT is himself for the bill but has an amendment to the bill of a major nature. I am sure Senator FULBRIGHT realizes better than anyone else that he was not helping himself in getting amendments through by making so capable a Senator and so experienced a debater as the distinguished Senator from Maine (Mr. MUSKIE), the floor manager. It is quite characteristic of the committee, however, that this should have been the attitude of our Chairman.
So, Mr. President, again I wish to express my appreciation to the Senator from Maine and to congratulate him on being named to manage such a historic bill as S. 440.
Mr. MUSKIE. Mr. President, may I respond to the distinguished Senator from New York. As I said earlier, I am privileged to have this assignment to press this legislation, which is a product of the distinguished Senator from New York as the first Senator to introduce war powers legislation. The Senator from Mississippi (Mr. STENNIS) and the Senator from Missouri (Mr. EAGLETON) have worked hard and effectively to produce this bill.
To me, it is a remarkable piece of legislation which so carefully defines without adding to or changing the constitutional authority bearing on the war-making powers. It is a remarkable example of legislative power, so I pay this tribute again to the Senator from New York.
Mr. JAVITS. I thank my colleague very much.