July 20, 1973
Page 25078
Mr. GOLDWATER. ... Congress purposely was denied the right to have the country to war by the Constitution because of the terrible experiences that Washington had under the Continental Congress, when we nearly lost that war because of the interferences by Congress in the day-to- day actions on the battlefield, including the replacement of commanding generals, and so forth; and when the Constitution was written, the Founding Fathers provided that the President, as Commander in Chief – not specifically, I will admit that – would have command of the forces as well as all responsibility for enforcing the laws of the land. It gave to the Congress the right – in fact, the power – to raise the armies and the navies, to provide regulations for them, to provide weapons, and so forth and so forth, and also allowed them to call up the militia, which, if you will study that part of the Constitution, meant just that – the militia – in other words, the national police or the National Guard type of activity. But nowhere does it give it power to go to war. We can declare war every 5 minutes, but not one man will leave the shores of America until the President says so.
I know this legislation is designed to change that to some extent, but again I do not believe it is the proper way to approach it.
In closing, I just wanted to again say I think it is very proper that this matter has come before the Congress. It is not the first time. Almost constantly during our 200 years as a Republic the matter has been under discussion – never as forceful as this discussion, nor has it ever reached the head that this has reached. I think it is wise that we have held these hearings and held the discussions on the floor, so that the American people might have a record of what we are talking about, and I would hope the American people–
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. EAGLETON. Mr. President, I yield 1 minute to the Senator from Arizona.
Mr. GOLDWATER. – including the academics in this country and all men in politics can read what has been going on the floor here, I think they will have a very complete history of what we are talking about and have a better understanding in regard to what we did and in making any corrections that they may want to make.
In closing, I thank the Senator from Missouri for yielding to me.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. GOLDWATER. I yield.
Mr. MUSKIE. First, I wish to express my regret that the Senator will not be here later, especially for the reason he has stated. I want to thank the Senator for his contribution to this issue. I have studied his statement before the committee, and I have studied his statements on the floor. I know he has given a lot of time and study to the consideration of this issue. I think he has helped illuminate the issue in a very constructive way. I do not agree with many of the conclusions he has reached, but I wanted to take a moment to compliment him for his contribution.
Mr. JAVITS. Mr. President, if the Senator will yield me 2 minutes in opposition, I would like to insert in the RECORD immediately after the argument by the Senator from Arizona, so that historians or others who read the RECORD may follow the argument carefully, first, an excerpt from the powers of the President as commander in chief as explained by Alexander Hamilton in Federalist 69, which appears on page 11 of the committee report in these words:
The President is to be commander in chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy, while that of the British king extends to the declaring of war and too the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature.
And then an excerpt from a letter of Jefferson to Madison in 1789:
We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay.
Finally, the Supreme Court of the United States, in the "Prize Cases" of 1862, said:
By the Constitution, Congress alone has the power to declare a national or foreign war . The Constitution confers on the President the whole Executive power ...
He is Commander-in-Chief of the Army and Navy of the United States ... He has no power to initiate or declare a war either against a foreign nation or a domestic state.
Mr. EAGLETON. Mr. President, I am prepared to yield back the remainder of my time on amendment No. 364.
Mr. MUSKIE. Mr. President, I think the amendment has been sufficiently discussed. I am prepared to accept it. The Senator from New York has indicated he is willing to accept it. I yield back the remainder of my time.
The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Missouri (No. 364) putting the question).
The amendment was agreed to.
Mr. EAGLETON. Mr. President, pursuant to the previous order, is my next amendment the pending business?
The PRESIDING OFFICER. The Senator is correct. The clerk will report amendment No. 365.
The legislative clerk proceeded to state the amendment.
Mr. EAGLETON. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 4, line 22, strike out the words "Specific statutory authorization is required for" and insert in lieu thereof the following: "For purposes of this clause (4), 'introduction of the Armed Forces of the United States' includes".
Mr. EAGLETON. Mr. President, amendment 365 is intended to correct a drafting error in section 3.4. That section contains a provision which requires statutory authorization to assign members of the Armed Forces to command or coordinate, et cetera, foreign military forces. Immediately following this provision is another which sets forth the limitations on present treaties and current provisions of law. This provision reads as follows:
No treaty in force at the time of the enactment of this Act shall be construed as specific statutory authorization for, or a specific exemption permitting, the introduction of the Armed Forces of the United States in hostilities or in any such situation, within the meaning of this clause (4) ; and no provision of law in force at the time of enactment of this Act shall be so construed unless such provision specifically authorizes the introduction of such Armed Forces in hostilities or in any such situation.
The language in this provision refers back to the language in the introductory sentence of clause (4), but does not pick up the separate provision which concerns the assignment of members of the Armed Forces to advise foreign military forces. The effect of the failure to pick up this language is that treaties and provisions of law in force on the date of enactment are subject to being construed as authorizing the assignment of members of the U.S. Armed Forces as advisers to foreign military forces who may be engaged, or there is an imminent threat that they may be engaged, in hostilities.
To correct this drafting error the words, "Specific statutory authorization is required for" at the beginning of the "advisor" provision, are stricken by my amendment and the following phrase is inserted: "For purposes of this clause (4), ‘introduction of the Armed Forces of the United States' includes"
This change ties the "advisor" provision to the language used in the subsequent provisions concerning treaties and current provisions of law, as well as to the introductory sentence in clause (4), thereby assuring that all references to the introduction of the Armed Forces of the United States will be tied in and encompass the assignment of U.S. advisers to foreign military forces.
Mr. President, this amendment does not change the original intent of the sponsors, it simply makes that intent clear in legislative language.
Mr. MUSKIE. Mr. President, this is another amendment which represents an improvement in drafting. I think it more clearly reflects the purpose of the section of the bill to which it relates. I am prepared to accept the amendment.
Mr. JAVITS. Mr. President, the purpose of the bill is to make the whole clause four applicable without question. In the drafting originally we believed that by repeating the words with which the clause opened – "pursuant to specific statutory authorization," – we were doing exactly that. I still believe that is the case. However, the Senator from Missouri (Mr. EAGLETON) suggests that is not necessary for clause four. He feels that we should make the words of clause four applicable to this particular situation which relates to participation in the ways described, to the military forces or the use of the military forces in another country.
I see no objection to it whatever. Draftsmen have a lot of choices of this kind. The Senator from Missouri has contributed so much that I defer to his judgment on this matter. The amendment is a drafting, "perfecting" amendment and it is acceptable.
Mr. MUSKIE. Mr. President, I yield back the remainder of my time.
Mr. EAGLETON. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time has been yielded back. The question is on agreeing to the amendment of the Senator from Missouri (putting the question).
The amendment was agreed to.