The CHAIRMAN. No. It will be made a part of the record. You do it as you please.

Mr. LEVITT. Yes.

The CHAIRMAN. You may proceed, sir.

Mr. LÉVITT. May I have questions then?

The CHAIRMAN. I thought you wanted to make some observations about a proposed amendment.

Mr. LÉVITT. Yes.

(The prepared statement of Mr. Lévitt follows):

STATEMENT OF ALBERT LÉVITT OF HANCOCK, N.H., ON SENATE RESOLUTION 151

The distinguished Chairman of the Senate Committee on Foreign Relations, Senator J. W. Fulbright, submitted Senate Resolution 151 to the Senate of the United States, on July 31, 1967. The Resolution reads as follows:

"Whereas accurate definition of the term "national commitment" in recent years has become obscured: Now, therefore, be it

"Resolved, That it is the sense of the Senate that a national commitment by the United States to a foreign power necessarily and exclusively results from affirmative action taken by the executive and legislative branches of the United States government through means of a treaty, convention, or other legislative instrumentality specifically intended to give effect to such a commitment."

I believe that this is the most important and most significant resolution introduced in the Senate of the United States during the past fifty years. It is greatly needed now because President Lyndon B. Johnson has claimed, and is now claiming, that he has the power and the authority to make national commitments by the United States to foreign powers even though those commitments violate the Constitution of the United States and are inconsistent with the laws that have been passed by Congress and deliberately are used by him to invade and circumvent the inherent sovereignty of the People of the United States. The President has repeatedly said that he has this all-embracing power and authority in the field of foreign relations simply because he is the President of the United States and is also the Commander-In-Chief of the Army and Navy of the United States. I believe that the President does not have the constitutional powers which he claims are his.

The present frame of reference for a proper discussion of Resolution 151 consists of the recent statements made by the President and his advisors in support of his power and authority to conduct the war in Vietnam as he is doing. The purpose of the Resolution is to tell the President that the Senate of the United States is of the opinion that national commitments can be created only by treaties and laws which are made and enacted by the co-ordinate legislative and executive branches of the government of the United States which the People of the United States have created through the provisions of the Constitution of the United States. This opinion indicates that the President may not do as he pleases in Vietnam, but rather, that he may do only what the express terms of the Constitution and the concurrence of the Congress may permit him to do.

I believe that the opinion of the Senate, as set out in Resolution 151, should be accepted and followed by the President because that opinion is completely sustained by the express provisions of the Constitution of the United States which control the means and methods which are to be used in the conduct of the foreign affairs of the People of the United States.

The Chairman of the Senate Committee on Foreign Relations said, on August 20, 1967, that this Committee ". would try to develop just what are the limits, if any, of the authority—not the power, the authority of the President to do what he will, whatever he wishes with the armed forces ." of the United States. (See: The New York Times, August 21, 1967, p. 7).

I shall, therefore, try this morning, to present to this Committee three matters. First, an analysis of the provisions of the Constitution of the United States which set out what the activities of the President may be; second, an analysis of the Resolution to determine whether or not it states with accuracy what the sources of the authority of the President are: and third, some suggestions for changes in the phrasing of the Resolution which will, in my opinion, make the Resolution more clear, definite and effective.

I

"Authority" means "permission to do"; "power" means "capacity to do." The President has the "authority" to do something he wishes to do if the Constitution of the United States say that he may do that thing. The President has the "power" to do something he wishes to do when the Constitution says that he can do that thing. "Authority" gives permission to "power" to act.

This distinction between "power" and "authority" and their inter-relation is clearly set forth in the Constitution, Article II, Section 2, Clause 2, which says that the President ". shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;.

A treaty is a contract between two or more states, nations, peoples, sovereigns, powers. It contains a set of promises which are made by the contracting parties. It sets out what each party to the contract must do or not do. It imposes a series of duties, of obligations, upon each of the contracting parties. By signing the treaty, the contracting party "commits" himself to the carrying out of the duties which his promises, as set out in the document which he signs, impose. Until he signs the document he is under no obligations to do, or not do what the document provides. The instant that he signs the document he comes under a duty to carry out, and to abide by, the provisions contained in the document.

The People of the United States are the only sovereign power that exists within the territory of the United States. Only the People of the United States can enter into a contract which imposes duties upon each and all of them. They, and they only, have the absolute power to "commit" themselves, to enter into a "national commitment" with a foreign power to do or not to do anything. They have not delegated that absolute power to the President. The only power which he has in the making of “national commitments" by means of a treaty is the power to carry on preliminary, inoperative negotiations concerning what should be in the terms of the treaty. It is only when he has received the advice and the consent of the Senate, and in addition, has received the concurrence of two-thirds of the Senators who are present when the consent to the making of the treaty is given, that the President has the power to make, that is to sign, the contract which imposes obligations and duties upon the People of the United States. The authority of the President to participate in the making of the treaty is given to him by the actions of the Senate. It is the advice, consent and concurrence of the Senate which permits the President to sign the contract on behalf of the People of the United States. The President cannot enter into any "national commitment", cannot impose duties upon the People of the United States, by himself. He is the elected representative of the People of the United States. He is vested, by the People, with executive power, but he may use that power only to the extent that he will ". . take care that the laws be faithfully executed . . ." and that he will to the best of his ". . . ability, preserve, protect and defend the Constitution of the United States." He has not been elected to be an absolute monarch, or a constitutional monarch, or a military dictator. He is an agent of the People of the United States. So long as he is President he must do that which the Constitution says he must do and he may do only that which the Constitution says he may do.

The Constitution (Article II, Section 2, Clause 2) says, "The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States..." This clause does not give the President either power or authority of any kind. It gives him a position and a rank. He is the top of the military hierarchy. He receives all the power and authority which he may have and use from the Congress of the United States. It is the Congress which has the power to "raise and support armies", "to provide and maintain a navy," to "make rules for the government and regulation of the land and naval forces" and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department of officer thereof." The President is the top officer in the military establishment of the United States. As such top commander the President has only those powers and authorities which he is given by Congress. His rank cannot be taken away from him by Congress but his rank extends only to the army and the navy, under the Constitution. His rank as commander in chief of the United States Air Force was conferred upon him by a statute enacted by the Congress. (For a discussion of the limits of the

authority of the President as Commander-In-Chief see Swaim vs. U.S. 165, U. S. 553 and 6 Op. Atty. Gen. 10). His authorities as commander in chief of the United States Air Force are also vested in him by act of Congress. (See: National Security Act of 1947; and H.J. Res. 298, 80th Cong. 2nd. Session 1948).

It is my firm belief that the President, functioning as Commander-In-Chief of the Army and the Navy, cannot enter into any "national commitments of the United States to a foreign power" unless a treaty or a statute gives him the authority to do so.

In addition to his alleged constitutional powers to do as he pleases in the field of foreign affairs, the President bottoms his powers and authorities to do as he wishes in Vietnam upon (a) various declarations by his predecessors in the Presidential Office, President Eisenhower and President Kennedy, (b) the South East Asia Treaty, and (c) the Tonkin Gulf Resolution. I have examined all the material of this character which I have been able to get from the State Department. I find nothing in this material which gives power and authority to President Johnson to do as he is doing in Vietnam. It contains no commitments by the People of the United States to any foreign power.

The statements made by Presidents Eisenhower and Kennedy are expressions of personal opinions.

The Southeast Asia Treaty does not, and cannot, give any power or authority to the President of the United States. It is not a self-executing treaty. It requires congressional action to make it operative. The provisions of this treaty must be carried out by the United States in accordance with the processes set out in the Constitution of the United States. President Johnson has not followed those constitutional processes. Article VI of the treaty, second sentence, is sheer nonsense. It says, "Each Party .. undertakes not to enter into any international engagement in conflict with this Treaty." No President, and no Senate, can by their concurrent action take away the sovereign power of the People of the United States to enter at any time they wish into any international engagements they see fit to make.

The Tonkin Bay Resolution does not purport to give, and does not give, any power or authority to President Johnson or any other President. It is simply an expression by the Congress of the United States that it approves of the determination of President Eisenhower to repel armed attacks against the forces of the United States and to prevent further aggression by unidentified persons, and a statement that the United States "is prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom." The phrase "as the President determines" is indefinite and vague. Whatever it may mean, it cannot possibly mean that Congress has abdicated and given all its powers over the armed forces of the United States to the President and that the Congress is prepared to do whatever the President tells it to do. The powers and authorities of Congress were not conveyed to the President by this resolution.

II

I respectfully suggest to the Chairman of the Senate Committee on Foreign Relations that, unless he intended to define the term "national commitment" by showing the essential nature of a "national commitment," there is no definition of that term in the language of Senate Resolution 151. (See: Oxford Dictionary, "Define," 6.) I venture, therefore, to offer the following definition.

"National commitment" means a promise made by the People of the United States in a treaty or in a law enacted by the Congress of the United States.

I respectfully submit that the language of the Resolution is vague, indefinite, involved and difficult to understand. An analysis of the language of the Resolution will prove my point.

66

Line 1 contains the phrase "it is the sense of the Senate." The word "sense" means "opinion" or "judgment." The average citizen will more easily understand either of the latter two words than he will understand the word "sense." Line 4 contains the word "and." This word is used in the phrase affirmative action taken by the executive and legislative branches of the United States Government ..." The Courts, with increasing frequency, are construing the word "and" as though it were written "and/or," because "and" is used in both its conjunctive and disjunctive meanings. As used in the Resolution what does the word "and" mean? What is the result of its use? If "and" is a conjunction, then the result is that the affirmative action must be taken by both branches

of the Government. But if "and" is used in its disjunctive meaning then the result is that the affirmative action may be taken by either the executive branch or the legislative branch of the government. Lines 5-6 contain the phrase other legislative instrumentality

66

through means of a treaty, convention, or

"Treaty" is a well-known and constantly defined word. It means a "contract made by the President of the United States and the Senate of the United States on behalf of, and as agents of, the People of the United States."

But the word "convention" is ambiguous. It is frequently used as a synonym for "treaty." If so used in the Resolution it should be eliminated. More frequently in international legislation "convention" means a principle of conduct or a standard of judgment which is the outgrowth of a long-continued custom or tradition. Is it the intent of the Resolution to bottom a "national commitment" upon some long-continued custom or tradition of the State Deparment and the Senate Committee on Foreign Relations? The State Department officials have frequently denominated "executive agreements" as "conventions" or as "treaties which do not need the consent of the Senate to become operative.” Are “executive agreements" which are predicated upon statutes to be valid bases for "national commitments by the United States to a foreign power?"

What is meant by "other legislative instrumentality?" The dictionaries define "instrumentality" as "the quality or condition of being instrumental; an agency; means." Is it intended by the Resolution to make a Congressional agency the basis for a "national commitment" by the United States?

With all deference I suggest that these ambiguities be cleaned out from the language of the Resolution.

III

With great diffidence I suggest that the Resolution be amended to read as follows:

"Whereas accurate definition of the term 'national commitment' has become obscured in recent years: Now, therefore, be it

Resolved, That it is the opinion and the judgment of the Senate of the United States

(1) that the term 'national commitment' means ‘a promise that is made by the People of the United States'; and

(2) that a national commitment can be made to a foreign Nation, or State, or People, or Power, only (i) in a Treaty which is made by the President of the United States, by and with the advice and consent of the Senate, or (ii) in a Law which is passed by the Congress of the United States; and

(3) that the Treaty or Law must state in express, clear, definite, precise and explicit words what the specific national commitment is; and

(4) that the Treaty or Law must not violate, or be inconsistent with, any provision of the Constitution of the United States.”

DEFINITION OF PHRASE "NATIONAL COMMITMENT"

Mr. LEVITT. Let me say this: I find that there are phrases in the amendment as it is now which either do not clearly express the intentention of the resolution or if they do intend it exactly as worded, then they are contradicting what I think is the purpose of the amendment. The amendment itself uses the word, for example, and I will deal with this as I have it-the amendment uses the phrase "national commitment." But I find nowhere in the resolution, any definition of national commitment. There is, of course, a rather unusual way of defining by stating the natural purpose of a statement or a thing. You define by showing how it comes into existence. If that is your purpose with this resolution, then you do have a definition. Otherwise you do not.

In line 1, you have the word "sense." As this resolution is meant, I believe, to come to the attention of the people generally, I, with great deference, suggest that instead of using the word "sense" you use the

words "opinion and judgment" which is the meaning of the word "sense" that is there. It doesn't alter the intention of the particular resolution anyway, to use the more understandable word.

Now, the phrase "and," the resolution in line 4 uses the word "and." That "and" is a trap. If it is used conjunctively then you must mean that you are going to insist that no national commitment can come into being until both the Legislative and the Executive act concurrently. But if you use the word as the courts so often interpret it, in its disjunctive sense meaning or, then the result of your resolution as it is now will be that you are saying that either the Legislative or the Executive may make a national commitment. I believe the second would be unconstitutional and, therefore, it should go out of the resolution as written.

The CHAIRMAN. Why do you feel "and" may be interpreted as "or?” I didn't realize that.

Mr. LÉVITT. Because, Senator, the cases are just full of that, and the legislatures have now taken to writing it "and/or," and those of us who have been teaching the law have had to warn our students against that usage. The Supreme Court of the United States very recently has dealt with that problem.

The CHAIRMAN. When you read the entire statement "and taken" together with "through means of a treaty, convention, or other legislative instrumentality" it seems to me to clearly exclude the interpretation that the Executive could do it alone.

Mr. LÉVITT. With all deference, sir, may I press the point, that if there is even a likelihood or a possibility that a phrase will be subject to interpretation, which interpretation may vary, that it will be wiser to use a word which would be clear and not subject to interpretation. When you say "do this" it doesn't mean "do this and/or that." Here the second interpretation is likely to be made by the courts or by the ordinary persons who are really thinking about this resolution that is being presented.

The CHAIRMAN. This is not likely to be the subject of court action. It is simply an expression of the attitude or the sense of the Senate. However, the second part of how they could be interpreted certainly is open to question.

What other word do you think is better than "and"?

Mr. LÉVITT. Than "and"?

The CHAIRMAN. Yes.

Mr. LÉVITT. I would do, as I have-may I read now my proposed amendment?

The CHAIRMAN. Yes.

PROPOSED AMENDMENT

Mr. LÉVITT. The other points that are there you can get from the phrasing.

I, really with great deference, sir, Senator, propose this, on page 5: "Whereas accurate definition of the term 'national commitment has become obscured in recent years: Now, therefore, be it

"Resolved, That it is the opinion and the judgment of the Senate of the United States