November 5, 1973
Page 35952
SUPPORT FOR OVERRIDING THE PRESIDENT'S VETO OF WAR POWERS RESOLUTION
Mr. JAVITS. Mr. President, I ask unanimous consent that a letter sent to all our Senate colleagues by me and Senator MUSKIE urging them to vote to override President Nixon's veto of the war powers resolution (H. J. Res. 542) be printed in the RECORD.
There being no objection, the letter was ordered to be printed in the RECORD, as follows:
DEAR COLLEAGUE: The President's veto of H. J. Res. 542, the War Powers Resolution, is no less dismaying because it was anticipated. The veto should be overridden by the Congress.
It is especially regrettable that the veto message shows no forward movement in the position of the Administration from what it was when Congress first initiated the legislative process almost three and a half years ago, which culminated in H. J. Res. 542.
The veto message reflects the same rigid opposition to reform in the war powers field and puts forward the same dogmatic arguments for the "imperial Presidency" as the President's spokesmen have in the hearings conducted in the Senate and the House over the past three years.
One may wonder how the White House could have so isolated itself as to be so unaware of and so insensitive to the logic of history and the demands of our people which have culminated in the War Powers Resolution adopted by such overwhelming votes in both Houses of Congress. One searches the veto message in vain for evidence of awareness of the historic hearings conducted in the Senate Foreign Relations Committee and the House Foreign Affairs Committee, of the floor debates in both Houses, of the testimony of the nation's leading constitutional authorities, of the attention devoted to the war powers issue in the press and the media, and of the editorials from all over the nation supporting the war powers bill.
Indeed, the veto message simply disregards key provisions of the bill and fails to respond to the arguments in the great national debate which has been conducted respecting the war powers and the Constitution, in and out of the Congress over the past three years. Among the provisions of the bill the veto message disregards are those leaving free to the President general military deployment – what the President in the message calls "subtle shifts". If such deployments are significant in scope, they are subject only to reporting to the Congress. The message ignores the fact that whatever constitutional power the President has, is not taken away, e.g., in protecting U.S. nationals abroad, but only when it leads to war or imminent danger of war does the bill become operative.
Particularly inadequate are the veto message's statements respecting the constitutional questions.
For, contrary to the assertions in the veto message, It is indisputable that the Founding Fathers, in drafting the Constitution, took more care to lodge the war powers in the Congress than was devoted to any other single issue. This is clearly manifested in the text of Article I, Section 8 giving the Congress all the appropriate powers – including the "necessary and proper" clause.
And the clear intention of the Founding Fathers in this regard is massively documented in the debates of the Constitutional Convention, in the Federalist Papers and other documents of the period, as well as in the practice of our government – both in the executive and legislative branches – throughout the Federal period.
It is particularly noteworthy that in using the words "foreign affairs" interchangeably with "war powers" to describe the powers dealt with by the vetoed bill, the veto message unwittingly, yet overtly, betrays the inclination of our recent Presidents to think of power in foreign policy as synonymous with power in war-making. This is precisely the attitude which continued the Vietnam war – a war which has deeply and grievously damaged the whole structure of our society, and which has made the war powers bill properly the first priority item on the agenda of national post-Vietnam rehabilitation.
The veto message alleges that the war powers bill seeks to accomplish objectives which ought to be accomplished by constitutional amendment. Administration spokesmen put forward this spurious argument during the Senate floor debates in 1972 and 1973. It is an argument which has been demolished in the Congressional hearings, and outside them, by our nation's leading constitutional authorities and historians. It is sobering to confront such a charge respecting legislation which seeks to restore to the Congress constitutional powers which have been wrested from it by activist Presidents. If the Congress cannot reclaim through legislation authority explicitly given to it by the Constitution, how much less is the Presidency entitled to acquire constitutional authority through unilateral, preemptive acts! By what logic must the Congress pass a constitutional amendment to reclaim its own constitutional powers?
Another of the central arguments of the veto message similarly stands the Constitution on its head. It argues that the Congress ought to have to pass a law in each instance in order to prevent a President from plunging the nation into war without the concurrence of the Congress, and therefore that the 60-day automatic cutoff of Presidential authority in war-making is unconstitutional. According to this logic must the Congress begin each legislative day by making a Declaration of No War? The Constitution gives to the Congress the power to declare war, which is the operative juridical act. Hence, whatever the act of Congress may be called, it is required if our nation is to change from a state of peace to a state of war. The Congress is not obligated to declare or authorize war if requested by a President – and certainly is not obligated to make a Declaration of No War in order to keep a President from making war on his own.
And yet, the White House now argues that the Congress can only restrain a war-making President through legislation which requires the President's signature and is subject to his veto! To our knowledge no one has yet discovered any word or phrase in the Constitution conferring upon the President the power to make war for as long as he can muster the support of one-third plus one vote of either House of Congress – which is all he needs to sustain a veto.
This, truly, is an assertion right out of the doctrine of the imperial presidency.
The veto message contends, also without substantiation, that the war powers bill would have prevented the successful diplomacy of President Kennedy's Administration respecting the Berlin crisis of 1961 and the Cuba missile crisis of 1962. But McGeorge Bundy, who occupied the position of Dr. Kissinger in the Kennedy Administration, specifically refuted this contention respecting the Cuba missile crisis when he testified before the Senate Foreign Relations Committee in 1971. Moreover, we know of no actions – diplomatic or military deployment – taken in the Berlin, Congo or Jordanian crises which would not have been possible under the war powers bill. Efforts to elicit from the Administration facts and evidence supporting such claims have always gone unanswered. One can only conclude that they reflect a failure to consider the war powers bill – or that they are purely rhetorical arguments.
Nothing in the War Powers Resolution could have hampered the President in his handling of the recent Middle East crisis. The bill would have allowed the President to put our Armed Forces on alert, to order movements of our fleets and to resupply the Israelis with military equipment. The bill would have required the President only to report to the Congress within 48 hours in writing with respect to the deployment of U.S. Armed Forces in foreign territory, airspace and waters. It is important to note that during the recent crisis at no point were United States Armed Forces engaged in hostilities or in situations where imminent involvement in hostilities was clearly indicated by the circumstances. The actions taken by the President related solely to the state of readiness of U.S. Armed Forces and did not involve the provisions of this bill.
The veto message claims that the war powers bill "would seriously undermine this nation's ability to act decisively and convincingly in times of international crisis" and that it would diminish the confidence of our allies and lessen the respect of our adversaries.
Quite the opposite is true – for every nation in the world knows now, if it did not before the Vietnam war, that the President cannot commit this nation to a determined war struggle without the concurrence of the Congress; and that, without the concurrence of the Congress, even the President's de facto authority falls short of adequate effectiveness. By establishing a procedure wherein the concurrence of the Congress (or its non-concurrence) is plainly established, the war powers bill will bring much needed decisiveness and stability to the conduct of our nation's foreign affairs insofar as it relates to the war power.
The dangerous erosion of confidence and respect for our nation's conduct which developed on every continent during the Vietnam war is evidence of the price which our nation and the structure of world peace is required to pay when efforts are made to conduct Presidential war, which lacks the legitimacy which can alone be derived from Congressional concurrence.
The lesson of the legitimacy of making war, for the American people and for the world, is the crux of the issue. The recent lesson of the Presidential air war against Cambodia with all its dangers and deceptions is there for every American to see.
In another of its inaccuracies, the veto message alleges that the war powers bill would prohibit the fulfillment of our treaty obligations under the NATO Treaty. This is an assertion exactly contrary to fact. For, the fact is that Article 11 of the NATO Treaty specifically provides that all provisions of the treaty will be carried out in accordance with the constitutional processes of the signatory nations. Under the United States Constitution affirmative action by both Houses of Congress is required to commit our nation to war. This Constitutional process cannot be altered by a treaty.
This very point was made clear during the Senate debate on the ratification of the NATO Treaty in 1949. And this position was confirmed by the State Department at that time, and was reconfirmed by the State Department in a legal memorandum submitted to the Senate Foreign Relations Committee in 1972. Also the bill confirms in Section 8(b) specifically U.S. participation in the joint command with other NATO members.
In its latter portion, the veto message contains several paragraphs of excellent sounding rhetoric concerning the "fullest cooperation between the Congress and the Executive" and "regularized consultations". Such sentiments are welcomed, indeed, but they are belied by the actual experience of recent years – for example, respecting Laos and Cambodia.
Moreover, the insupportable claims respecting "executive privilege" and "separation of powers" which are put forth regularly in the courts by the President's lawyers to justify refusal to provide information to the Congress, and to the courts, vitiate the veto message's implied suggestion that the Congress content itself with a bill which requests after-the-fact reports from the executive branch concerning war-making actions taken by the President.
Finally, the veto message suggests that the war powers bill should be shelved in favor of an administration proposal for a national study commission. Clearly, the Congress cannot abdicate its constitutional and legislative responsibilities to a study commission especially when considered in connection with the consideration of the war powers bill for the last three years – itself quite a "study commission." Moreover, assuming that the study commission proposal is one which is put forward in good faith and not as a way to sidetrack the issue, the appointment of such a commission, rather than an override of the veto, simply accepts the President's interpretation of the Constitution and shackles the Congress in getting back any real control over the war power for yet a considerable time longer.
Accordingly, we urge you to vote to override the President's veto of H. J. Res. 542, the War Powers Resolution. Similar appeals are being made by Congressman Zablocki and Chairman Morgan in the House of Representatives.
Sincerely,
JACOB K. JAVITS, EDMUND S. MUSKIE.