July 20, 1973
Page 25091
Mr. MUSKIE. Mr. President, I yield myself 6 minutes.
May I make clear at the outset that I respect immensely the capability, the knowledge, and the background of the distinguished chairman of the Committee on Foreign Relations, and I often follow his lead in these matters.
With respect to this amendment, the basic position which I take is that it again raises the risk of loading the bill with serious questions that ought not to be loaded upon it at this time. One of the questions has already been discussed by the distinguished Senator and the minority whip – the question of whether or not the concurrent resolution provision is constitutional. A second question is the President's constitutional power to deploy the Armed Forces.
Congress undoubtedly has authority in this field, and the President has some authority in this field. As the Senator from Arkansas so eloquently pointed out, what we have here is another one of those gray areas that is better left alone. Because it is such a gray area, and because the question the amendment raises is a significant one and may be a serious one, I prefer not to add it to the bill at this time. For that reason I shall oppose the amendment.
I yield the distinguished Senator from New York such time as he may require.
Mr. JAVITS. I need just 4 minutes.
Mr. President, this amendment is not unlike the Eagleton amendment. It deals with causes of war. The Senator from Arkansas (Mr. FULBRIGHT), out of his extremely rich experience, says that if you pile troops or forces in a given area, that could enhance the possibility of war.
But, here again, we must stick to the basic purpose of our bill: It is a methodology. It is a way in which to give Congress the opportunity and the frame of reference in law by which it can assert itself in respect to deciding on war – not the causes of war, but war. To be faithful to that purpose, we must reject this amendment.
For those reasons, not because I do not understand or am not sympathetic, or because there is no congressional power – there is; Congress can pass laws about deployment. I must say to the Senator from Arkansas I have grave doubts about a concurrent resolution. I doubt that the congressional power respecting the President's power, where both of them are in a given area, as in warmaking or in deployment, can be asserted other than by law. A concurrent resolution is not law, it is nonstatutory. I think where concurrent resolutions can be used is where you have a power that Congress has conferred under its authority to make general law; and it can take that power back, if the President signs the bill providing that we can take it back into law.
As to constitutional authority, I have grave doubts about it. Incidentally, I do not know whether that has been decided by the courts, but I am giving my best opinion, and am not depending on it for any war powers legislation.
But laying that aside, my point is that it is another question of war we would be trying to deal with. It may be a very important one, like Senator EAGLETON'S, but one we simply cannot encompass in this bill.
Another thing I would like to call to Senator FULBRIGHT'S attention, because I have little doubt, whether he succeeds or fails here, that this is a subject deep in his mind and he will pursue it. I would like to call to his attention the secrecy problem, a very serious problem in this respect, because he himself contemplates it. He says the President shall provide "under appropriate injunctions of secrecy" – that is page 1, lines 3 and 4, of his own amendment – and that is very necessary, because, after all, that is one of the legitimate secrets of any country, to wit, the deployment of its armed forces.
The question is, How do you break that secrecy, assuming it can be removed on due notice from the President? Suppose the President does not give you due notice? Then when we pass the concurrent resolution, we are breaking the secrecy. I do not say that is impossible; we can live with that, too. Maybe we, too, have to function in some things in secrecy, and be tough enough to discipline a Member who breaks the secrecy, which is something we have never done. But that takes a good deal more thought and refinement than we can put into this bill with an hour's debate.
On the question of constitutionality, I would like to say that while I believe Congress does have power to legislate respecting peacetime deployment, the constitutional interplay between Congress and the Commander in Chief is somewhat different. The respective authorities are different, and perhaps the Commander in Chief's authority is stronger vis-a-vis Congress with respect to the details of the locus of peacetime deployment of the forces under his command.
This is an issue which should be explored and clarified in hearings such as we did with respect to the war powers.
Mr. FULBRIGHT. Mr. President, will the Senator yield for clarification?
Mr. JAVITS. Yes.
Mr. FULBRIGHT. I want to emphasize that this applies only in peacetime. Today there are no secrets, I believe, as to where our troops are. Every day we read about 70,000 in Germany, so many in Ethiopia – we read about it almost daily in the press, as to where they are. This applies only in peacetime. I am not undertaking to deploy them in wartime.
Mr. JAVITS. Can the Senator tell us where the Polaris submarines are based and deployed today?
Mr. FULBRIGHT. Mr. President, this amendment explicitly exempts the Polaris submarines. It should not apply to submarines. But they are not affected. I am only talking about the things the amendment talks about.
In the daily press – I read just today how many there are in Japan, and how many in Korea. So when you talk about peacetime, I think it is not really all that secret. I do not think it is a major problem. That is all I am saying.
Mr. JAVITS. What I am saying, Mr. President, in judging the delicacy of what the Senator is trying to do, is that he himself – not I, he – in drafting the amendment, found it necessary to say that the information shall be provided under the appropriate injunctions of secrecy.
Therefore, if the President is not going to dispel the very thing he calls for, but we are going to dispel it, we have to think about that: we cannot just say "Do it."
I say this only to emphasize that this is an intricate, subtle, and difficult subject. It is not a subject that should be disposed of hastily, or superficially, in terms of a quick debate under time limitation. We have had no hearings and only a cursory debate.
The PRESIDING OFFICER. The Senator's 4 minutes have expired.
Mr. FULBRIGHT. Mr. President, will the Senator yield for one observation?
The PRESIDING OFFICER. Who yields time?
Mr. MUSKIE. I yield the Senator such time as he may require.
Mr. FULBRIGHT. This idea that it is delicate and we ought not to interfere, of course, is at the root of our trouble. We have proceeded under this kind of myth of Presidential infallibility for about 30 or 40 years, and everyone is conditioned to believe that in some mysterious way the President is reliable on secrecy, that he has wisdom, and we ought not to interfere with it. This is the root of our problem. I find that there is an assumption in this bill as it comes from the committee that certain sections, like section 6, are sort of based upon an assumption that Congress has to assert its power legislatively. We have gotten into the position that we are so conditioned we cannot do anything. But I do not think it is valid to assume that the Executive is so much more reliable than Congress that he can be absolutely depended upon.
Mr. JAVITS. Mr. President, if I may have 1 more minute to reply, this whole bill is a massive negation of that assumption.
Mr. MUSKIE. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER (Mr. BIDEN). All remaining time having been yielded back, the question is on agreeing to the amendment of the Senator from Arkansas (Mr. FULBRIGHT).
The amendment was rejected.