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COMMITTEE ON FOREIGN AFFAIRS

THOMAS E. MORGAN, Pennsylvania, Chairman

CLEMENT J. ZABLOCKI, Wisconsin
WAYNE L. HAYS, Ohio

L. H. FOUNTAIN, North Carolina
DANTE B. FASCELL, Florida
LEONARD FARBSTEIN, New York
CHARLES C. DIGGS, JR., Michigan
WILLIAM T. MURPHY, Illinois

CORNELIUS E. GALLAGHER, New Jersey
ROBERT N. C. NIX, Pennsylvania
JOHN S. MONAGAN, Connecticut
DONALD M. FRASER, Minnesota
BENJAMIN S. ROSENTHAL, New York
EDWARD R. ROYBAL, California
JOHN C. CULVER, Iowa
LEE H. HAMILTON, Indiana
JOHN V. TUNNEY, California
ABRAHAM KAZEN, JR., Texas
LESTER L. WOLFF, New York
JONATHAN B. BINGHAM, New York
GUS YATRON, Pennsylvania

E. ROSS ADAIR, Indiana

WILLIAM S. MAILLIARD, California
PETER H. B. FRELINGHUYSEN, New Jersey
WILLIAM S. BROOMFIELD, Michigan
J. IRVING WHALLEY, Pennsylvania
H. R. GROSS, Iowa

E. Y. BERRY, South Dakota
EDWARD J. DERWINSKI, Illinois
F. BRADFORD MORSE, Massachusetts
VERNON W. THOMSON, Wisconsin
JAMES G. FULTON, Pennsylvania
PAUL FINDLEY, Illinois

JOHN BUCHANAN, Alabama
ROBERT TAFT, JR., Ohio
SHERMAN P. LLOYD, Utah
J. HERBERT BURKE, Florida
WILLIAM V. ROTH, JR., Delaware

BOYD CRAWFORD, Staff Administrator
ROY J. BULLOCK, Senior Staff Consultant
ALBERT C. F. WESTPHAL, Staff Consultant
FRANKLIN J. SCHUPP, Staff Consultant
HARRY C. CROMER, Staff Consultant
PHILIP B. BILLINGS, Staff Consultant
MARIAN A. CZARNECKI, Staff Consultant
MELVIN O. BENSON, Staff Consultant
EVERETT E. BIERMAN, Staff Consultant
JOHN J. BRADY, Jr., Staff Consultant
JOHN H. SULLIVAN, Staff Consultant
JUNE NIGH, Senior Staff Assistant
HELEN C. MATTAS, Staff Assistant
HELEN L. HASHAGEN, Staff Assistant

LOUISE O'BRIEN, Staff Assistant

DORA B. MCCRACKEN, Staff Assistant

JEAN E. SMITH, Staff Assistant
NANCY C. PEDEN, Staff Assistant

PAULA L. PEAK, Staff Assistant
DIANE GALLAGHER, Staff Assistant

SUBCOMMITTEE ON NATIONAL SECURITY POLICY AND SCIENTIFIC DEVELOPMENTS To deal with all matters affecting our foreign relations that concern matters of national security and scientific developments affecting foreign policy, including the national space program, mutual defense, and the operation of our high strategy generally]

CLEMENT J. ZABLOCKI, Wisconsin, Chairman

WAYNE L. HAYS, Ohio
ROBERT N. C. NIX, Pennsylvania
L. H. FOUNTAIN, North Carolina
CORNELIUS E. GALLAGHER, New Jersey
DONALD M. FRASER, Minnesota

VERNON W. THOMSON, Wisconsin
WILLIAM S. BROOMFIELD, Michigan
PAUL FINDLEY, Illinois
JAMES G. FULTON, Pennsylvania
ROBERT TAFT, JR., Ohio

JOHN H. SULLIVAN, Staff Consultant
JUNE NIGH, Senior Staff Assistant

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Bickel, Alexander M., Chancellor Kent professor of law and legal
history, Yale University...

44

Mallison, Dr. W. T., Jr., professor of law, George Washington Univer-
sity, Washington, D.C..

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Wednesday, June 24, 1970:

Burns, Prof. James MacGregor, Woodrow Wilson professor of govern-
ment, Williams College, Williamstown, Mass....

Thursday, June 25, 1970:

81

Chayes, Prof. Abram, Harvard Law School, Harvard University.
Moore, Prof. John Norton, professor of law, University of Virginia
School of Law..

135

124

Tuesday, June 30, 1970:

Fascell, Hon. Dante B., a Representative in Congress from the State
of Florida---

187

Holifield, Hon. Chet, a Representative in Congress from the State of
California..

173

Miller, Hon. George P., a Representative in Congress from the State
of California_.

169

Wednesday, July 1, 1970:

Rehnquist, William H., Assistant Attorney General, Office of Legal
Counsel, Department of Justice__

210

Stevenson, Hon. John R., legal adviser, Department of State__

205

Thursday, July 9, 1970:

Weil, Charles A., author of "Curtains Over Vietnam".

248

Thursday, July 23, 1970:

Bingham, Hon. Jonathan B., a Representative in Congress from the
State of New York----

265

Hathaway, Hon. William, a Representative in Congress from the
State of Maine.

276

Tuesday, July 28, 1970:

Katzenbach, Hon. Nicholas de B., vice president, IBM Corp., and
former Attorney General of the United States..

299

Lowi, Prof. Theodore J., department of political science, University
of Chicago..-

285

Thursday, July 30, 1970:

Anderson, Hon. John B., a Representative in Congress from the State
of Illinois..

342

Pepper, Hon. Claude, a Representative in Congress from the State of
Florida...

362

Quie, Hon. Albert H., a Representative in Congress from the State of
Minnesota__.

325

Wednesday, August 5, 1970:

Findley, Hon. Paul, a Representative in Congress from the State of
Illinois_

411

Javits, Hon. Jacob K., a U.S. Senator from the State of New York__
Taft, Hon. Robert, Jr., a Representative in Congress from the State
of Ohio..

393

388

STATEMENTS AND MEMORANDUMS SUBMITTED
FOR THE RECORD

Text of House Joint Resolution 1151, to require Presidential reports on the
use of military personnel on foreign territory.
Memorandum supplied by the Department of State concerning guidelines
for U.S. policy toward Asia, as laid down by President Nixon at Guam,
July 25, 1969__

Letter from Mr. Charles A. Weil with further reference to his testimony
before the subcommittee on July 9, 1970___

Page

17

242

263

282-283

Memorandum submitted by Hon. William Hathaway concerning the war
powers of the President and the Congress under the Constitution and as
embodied in House Resolution 1064.
Correspondence between President Franklin Delano Roosevelt and Hon.
Claude Pepper relating to the war powers of the President and the
Congress-

379-381

Text of H.R. 18654, introduced by Hon. Paul Findley, relating to the war powers.

411

Statement submitted by Hon. Daniel E. Button, of New York, in support of H.R. 17773..

425-427

Statement submitted by Hon. Samuel N. Friedel, of Maryland, in support of H.R. 17773 and H.R. 17598-

427-428

Statement submitted by Hon. Charles S. Gubser, of California, in support of H. Res. 1120___

428-431

Statement of Hon. John R. Rarick, of Louisiana, in support of H. Res. 169.

431-433

Appendixes:

Appendix I.-A selection of legislative proposals regarding the war powers: Texts and a comparison of provisions

436-495

Appendix II.-Materials submitted for the Record..

497

The Constitutionality of the Cambodian Incursion, by Attorney
William D. Rogers, Washington, D.C.--.

497-504

The National Executive and the Use of the Armed Forces Abroad,
by Prof. John N. Moore...

Legal Memorandum on the Constitutionality of the Amendment to
End the War..

505-512

513-520

The War Power. An excerpt from the Constitution, prepared by
the Legislative Reference Service, Library of Congress ---- 521-533
The opinion of Mr. Justice Jackson in the case Youngstown Sheet
& Tube Company et al. v. Sawyer--

534-538

539-544

The President's Constitutional Authority To Order the Attack on
the Cambodian Sanctuaries. Remarks of William H. Rehnquist,
Assistant Attorney General, Office of Legal Counsel.
Statement by Hon. John R. Stevenson, Legal Adviser, Depart-
ment of State, on issues of international law involved in U.S.
military actions in Cambodia...
Beachhead strategy and tactical nuclear weapons, by Charles
Weil. An excerpt from book entitled, "Curtains Over
Vietnam".

545-549

550-552

Statement of Hon. Nicholas deB. Katzenbach, Under Secretary
of State, before Senate Foreign Relations Committee, Aug. 17,
1967, on the question of governmental powers under the
Constitution_.

553-556

The Place of the President and Congress in Foreign Policy, by
Senator Robert A. Taft. An excerpt from Senator Taft's book,
"A Foreign Policy for Americans".

557-563

Items submitted by Hon. Jacob K. Javits, of New York, con-
cerning his bill, S. 3964...

564-589

Index..

591-601

INTRODUCTION

Recent international events have reemphasized the importance of cooperation between the executive and legislative branches of our Government in matters affecting national security. Disputes between Congress and the President over the proper exercise of the war powers can only weaken the United States during times of crisis.

In large part because of the ramifications of the Cambodian incursion, a number of Members of Congress introduced legislation which would attempt to define the authority of the President to intervene abroad without the specific prior consent of Congress. In June these bills were referred for deliberation and possible action to the Subcommittee on National Security Policy and Scientific Developments. From June 18 to August 5, the subcommittee held numerous hearings on the proposals, and heard 23 witnesses, including Members of Congress, noted constitutional and legal experts, distinguished political scientists and historians, private citizens, and representatives of the Departments of State and Justice.

It was not our intention to assess blame or take restrictive action in reprisal for past actions by Presidents. Our concern was with the proper scope and substance of congressional and Presidential authority under the Constitution in order that both branches of Government might act as partners, moving in concert toward the greater national interest.

In short, the subcommittee attempted to look forward to future. contingencies in which the cooperation of Congress and the President would be required, rather than backward to specific past situations.

A proper apportioning of the war powers proved to be the most complex and perplexing problem with which the subcommittee has yet been concerned. The issue is rooted in the constitutional system devised by the Founding Fathers in Philadelphia almost 200 years ago; at the same time, it is an issue which has great importance for the safety and survival of our Nation in the nuclear age.

Because of the excellent quality of the testimony received by the subcommittee, however, the outlines of a consensus on a course of action emerged. Certain proposals were determined not to be feasible; others were accepted as representing a forward step toward increased cooperation between the Congress and the President.

As a result, following the close of the hearings, the subcommittee met in morning and afternoon sessions on August 12 to formulate and approve a joint resolution on the war powers issue. That resolution, now pending before the full House Foreign Affairs Committee, was introduced into Congress as House Joint Resolution 1355 the following day. The text follows:

HOUSE JOINT RESOLUTION 1355

JOINT RESOLUTION Concerning the war powers of the Congress

and the President

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress reaffirms its powers under the Constitution to declare war. The Congress recognizes that the President in certain extraordinary and emergency circumstances has the authority to defend the United States and its citizens without specific prior authorization by the Congress. SEC. 2. It is the sense of Congress that whenever feasible the President should seek appropriate consultation with the Congress before involving the Armed Forces of the United States in armed conflict, and should continue such consultation periodically during such armed conflict.

SEC. 3. In any case in which the President without specific prior authorization by the Congress

(1) commits United States military forces to armed conflict;

(2) commits military forces equipped for combat to the territory, airspace or waters of a foreign nation, except for deployments which relate solely to supply, repair, or training of United States forces, or for humanitarian or other peaceful purposes; or

(3) substantially enlarges military forces already located in a foreign nation; the President shall submit promptly to the Speaker of the House of Representatives and to the President of the Senate a report, in writing, setting forth— (A) the circumstances necessitating his action,

(B) the constitutional, legislative, and treaty provisions under the authority of which he took such action, together with his reasons for not seeking specific prior congressional authorization;

(C) the estimated scope of activities; and

such other information as the President may deem useful to the Congress in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

SEC. 4. Nothing in this joint resolution is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties.

I believe that this resolution reflects the views of many Members of Congress, of both political parties and of various opinions on the present state of American foreign policy. As such, it can be approved overwhelmingly by the Congress during the remaining days of the 91st Congress and sent to the President for his signature.

That, however, lies in the future. For the present I am pleased to recommend the testimony and statements in this volume to all Americans who care deeply about the formation and conduct of our national security policies. This document represents the first extensive consideration in almost 20 years of the "zone of twilight" which marks the concurrent authority over the war powers given by the Constitution to the executive and legislative branches.

If it brings the light of reason to that twilight zone, then this volume will have served a useful public purpose in the service of our democracy. CLEMENT J. ZABLOCKI,

Chairman, Subcommittee on National Security Policy and Scientific Developments.

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