CONGRESSIONAL POWERS OVER ARMED FORCES Senator HICKENLOOPER. That is where the confusion, of course, arises, because the only thing that the Constitution says about war as far as the President is concerned, is that he is commander in chief. I think it has been pointed out that a number of references to the power in connection with war are contained in the the Constitution. Three of them, I believe, have been read here at this hearing. I do not want to plough that furrow too often. But one of them is that the Congress has the power to declare war. It has the power to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years. It has the power, and this is quite important, to provide and maintain a Navy. Now, the commander in chief does not do those things. Under the normal acceptance of the term he runs the show after Congress had done these things. Mr. KATZENBACH. I think it is an important point to make, Senator, because they have been doing these things throughout Vietnam. Senator HICKENLOOPER. Yes. Precedent is piling upon precedent until we finally accept it as a fact, which I am not willing to do myself. But here is a most important provision in the Constitution so far as the Congress is concerned. Congress has the right, and so far as I know, the sole right-all of these are the sole right of Congress-to make rules for the Government and regulation of the land and naval forces of this country. The commander in chief does not have the right to do that. It is the Congress that has that right specifically given by the Constitution. Here I think is where the confusion occurs, and I want to ask you this. In connection with the thesis that the President has the right to order troops into a foreign country, for instance-and I will use a foreign country by way of an illustration-and commit them to battle, without resolution of the Congress or without authority of the Congress, does Congress have the right to pass a proper measure, a joint resolution or something else, to bring those troops out of that country contrary to the wishes of the President? Mr. KATZENBACH. I very much doubt that it has the power to do that. It would seem to me that that would be an invasion of the commander in chief CAN THE CONGRESS ORDER AMERICAN TROOPS OUT OF A FOREIGN COUNTRY? Senator HICKENLOOPER. Do you mean to take the position that this Congress cannot order the American armies and troops out of a foreign country if it wants to? Mr. KATZENBACH. As a constitutional matter I would not take that view. I think you raise a much closer question if it refers to support of them under the Appropriations Act. On that I think as a practical matter it is perfectly obvious Congress can do this. Senator HICKENLOOPER. Do what? Mr. KATZENBACH. Can get the troops out of Vietnam if it chooses to do it. Senator HICKENLOOPER. I am not talking about any round-thecorner operation by withholding funds. Mr. KATZENBACH. I understand. Senator HICKENLOOPER. Of course we can always withhold funds. Mr. KATZENBACH. Yes, sir. Senator HICKENLOOPER. We can withhold funds from the President of the United States to pay his salary or to pay the employees that he has. Yes, we have the purse strings over here in the Congress. But I think it is a difficult doctrine for me to agree to, that the Congress cannot control the President of the United States from the standpoint of the use or the withholding of the troops of this country abroad. I simply cannot go along with that doctrine. Mr. KATZENBACH. Senator, I understand that you cannot. I understand that there is room for differences of opinion on this. You asked me for my view on it. I stated it. I respect your view on it. But it does go a little bit to the general point that I wanted to make and have tried to make throughout. It is precisely because there can be differences of this kind that make it so important not to resolve whether the Congress can act against the President or the President against the Congress but to create devices so that in the interests of all the people, they are acting to the extent that they can together and in step. This has been the purpose throughout our history. There have been disputes about it, but there is no way, Senator Senator HICKENLOOPER. That is a cooperative argument, I submit, and not a constitutional argument. Mr. KATZENBACH. It is a constitutional argument in this sense, Senator. How are you going to resolve it? Senator HICKENLOOPER. That is what we are trying to find out in these hearings. Mr. KATZENBACH. Who is going to resolve it except through a cooperative effort? You are not going to take it to the Supreme Court, because our forefathers in their wisdom said the Supreme Court had to have a case of controversy. ADMINISTRATION STATEMENT DURING NATO HEARINGS Senator HICKENLOOPER. May I call your attention to something which contributes at least somewhat to the confusion. This happened to involve me personally some years ago at the time the North Atlantic Treaty was up for consideration before this committee. I won't read all of the statements I made prior to this, but we were considering our obligations under the North Atlantic Treaty, and Secretary Acheson was Secretary of State at that time, representing the Government during these hearings. I talked about the troop situation in Europe and their ability to defend themselves and their willingness to take their full responsibility under the North Atlantic Treaty. I said: Is that contemplated under article III where we agree to maintain and develop the collective capacity to resist? In other words, are we going to be expected and this is the important part to send substantial numbers of troops over there as a more or less permanent contribution to the development of these countries' capacity to resist? Secretary ACHESON. The answer to that question, Senator, is a clear and absolute "No." Four months later we had four divisions on the way to Europe, and they and more troops have been there ever since. That is what bothers us sometimes about understanding what the executive department means in some of these matters. What can we expect in the future? Mr. KATZENBACH. I think there is room for misunderstanding there, if I heard you correctly. Mr. Acheson was talking in terms of an obligation to do so. You are talking in terms of facts which subsequently occurred, just as earlier you asked me about when we got into war in a formal sense. I don't think we are at war. We are there for very limited objectives in Vietnam. Mind you, it has been a war, but I want to try to be responsive at this time. Senator HICKENLOOPER. I don't want to belabor this. I think the principle is too broad to quarrel over the details of the matter. In this connection I should have read this I suppose. I will ask that this whole paragraph be put in in connection with the question, Mr. Chairman. The CHAIRMAN. Without objection. (The paragraph referred to follows:) EXCERPT FROM U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, APRIL 27, 1949, NORTH ATLANTIC TREATY HEARINGS, PAGE 47 NO PLANS TO SEND AMERICAN TROOPS TO EUROPE I believe you said earlier in your testimony today that it was contemplated that a great portion of the armament, or the developed armament, of western Europe, in the nations of this pact, would be carried under their own weight. I presume that that refers also to the manpower in their armies. I am interested in getting the answers as to whether or not we are expected to supply substantial numbers-by that, I do not mean a thousand or two, or 500, or anything of that kind, but very substantial numbers of troops and troop organizations, of American troops, to implement the land power of western Europe prior to aggression. Is that contemplated under article 3, where we agree to maintain and develop the collective capacity to resist? In other words, are we going to be expected to send substantial numbers of troops over there as a more or less permanent contribution to the development of these countries' capacity to resist? Secretary ACHESON. The answer to that question, Senator, is a clear and absolute "No." Senator HICKENLOOPER. That is sufficient. That is all, Mr. Chairman. Senator HICKENLOOPER. I said that I was interested in getting the answers as to whether or not we were expected to supply substantial numbers. By that I did not mean a thousand or two or 500 or anything of that kind, but very substantial numbers of American troops, to implement the land power of Western Europe prior to aggression. And that is what Secretary Acheson, speaking for the Government at that time when we were considering the NATO Treaty, said, "The answer to that question, Senator, is a clear and absolute "No." And I said, "That is sufficient. That is all, Mr. Chairman." And I voted for the treaty. Now it is my opinion that, had we been told at that time that we were going to send four divisions of troops within three or four months over there for permanent station in Europe and that over the years we expected to have thousands of troops over there in Europe, I doubt the North Atlantic Treaty would have had anywhere near the support that it got. I might have supported it. I don't say that I wouldn't necessarily. But I didn't understand that we were going to implement the treaty in any way except through the furnishing of materiel, munitions, and certain logistical support. I am merely saying that these are some of the things that concern a lot of people, at least they do me, and I am concerned about them and I am not going to take any more time because it is getting late. The Chairman has some other questions he wants to ask. But I hope that some of these things can be cleared up. We have been arguing these things for 170 or 180 years and I don't know that we will settle them in this hearing, but we may make a little progress, at least for the immediate future. Thank you. ADMINISTRATION STATEMENTS AT TIME OF SEATO TREATY AND TONKIN GULF RESOLUTIONS HEARINGS The CHAIRMAN. In that connection, Mr. Secretary, before I go on to a question or two I have, in the hearings on the SEATO treaty, the then Secretary of State, Mr. John Foster Dulles, said this on page 14: We made clear at Manila that it was not the intention of the United States to build up a large local force including, for example, U.S. ground troops for that area, but that we rely upon the deterrent power of our mobile striking force. I only cite it, it is somewhat similar to what Senator Hickenlooper quoted. Senator HICKENLOOPER. What area? The CHAIRMAN. Southeast Asia, SEATO. That was our hearing on the SEATO treaty. There are one or two little points, Mr. Secretary, that I was trying to catch up on-a point or two that had been raised primarily in other Senators' questions. I don't think it has been put in the record, but in the hearings on the Southeast Asia resolution, pages 22 and 23, this exchange occurred: Senator ERVIN. Did we have any treaty obligation which imposed any duty in that respect to us prior to the making of the SEATO Treaty? Secretary RUSK. No, sir, there was no treaty obligation. This was on the basis of a request from the Government of Vietnam to us, and our acceptance of that request and action under our aid programs to South Vietnam. Senator ERVIN. Is it your position we are now rendering such aid as we are rendering to Vietnam under an obligation assumed by us under the SEATO Treaty? Secretary RUSK. There are several aspects of this. In the first place the President, we believe has authority under the aid programs and under his own responsibility as President and Commander in Chief to give assistance of the sort we have been giving there. Of course, all this assistance is provided, the tangible assistance, is done on the basis of congressional appropriations which are fully discussed here. We do believe that the obligations of the SEATO Treaty are both joint and several, and that the SEATO Treaty is a substantiating basis for our presence there and our effort there, although, however, we are not acting specifically under the SEATO Treaty. For whatever it is worth, I thought it bears upon this question. Mr. KATZENBACH. The date of that is important, because the obligations of the United States under the SEATO treaty, such as they were, it seems to me, were triggered really by the actions of Hanoi in terms of their acts of aggression against South Vietnam, which came in 1945. At least we were sure they would come in The CHAIRMAN. In 1945? 83-230-67————12 Mr. KATZENBACH. Excuse me, in 1965, at the time that the President committed troops there. In repeating statements of the Secretary, I think it should be clear that we were dealing with helping South Vietnam to deal with an insurgency movement that they had, rather than an invasion from the North. So it seems to me the date on which the statement is made is an important one. The CHAIRMAN. Yes. Well, the date is August 6, 1964. I think that is correct. This only fortifies, I believe, the point made by the Senator from Tennessee as to the intent of the resolution, which was to approve of the President's authority to repel an attack upon our forces. Here again I think it contributes to the same interpretation that I believe the Senator from Tennessee made a moment ago and made it very well and very thoroughly. MEANING OF A DECLARATION OF WAR Now there is another point about this question of the power-the declaration of war being-I don't want to put words in your mouth— obsolete or outmoded. Which did you use or both? Mr. KATZENBACH. I used those words. I don't know whether I used "outmoded," "dead," or "obsolete." I said, I intended to, if I did not, I intended to qualify it by pointing out that in these kinds of situations I thought it was inappropriate for that. I think it had become largely obsolete, but I thought these were the kinds of situations which you were likely to be faced with, that we have been faced with since 1945 and are likely to be faced with in the future. The CHAIRMAN. I want to try to develop a point to see if there is any merit in it. You also went on to say that in the popular mind we are in a state of war. To what do you contrast that? Is that as opposed to your mind? Mr. KATZENBACH. It could be. I didn't intend it that way. The CHAIRMAN. I want to develop it. I don't want to put words in your mouth. Mr. KATZENBACH. I think in the thoughts of people's minds that they are shooting, that they are at war with each other. I think that is what it means in the popular mind. I think in terms of international law. international practice, and even the domestic Constitution, as far as that is concerned, that war implies the objectives of destroying the other government, destroying the other state. It has that kind of connotation. For this reason there has always been, or there has been over many, many years, even prior to the U.N. and these obligations we are talking about, a whole history of action less than war, which have gone on where the effort was to try to indicate that they didn't have that objective. So this is why I object to saying we are at war there, although I realize in the popular sense that makes me perhaps look foolish. We have very limited objectives. Even though you may have a lot of casualties and spend a lot of money in the course of achieving those, those are not the objectives that to my mind are implied by the word "war." The CHAIRMAN. The point I am really coming to is that it seems to me that international law-and all these consequences you mentioned about neutrality and other things-applies when there is a fact of war, not a declaration. The declaration of war in the Constitution is rele |