COMMITTEE ON FOREIGN AFFAIRS THOMAS E. MORGAN, Pennsylvania, Chairman CLEMENT J. ZABLOCKI, Wisconsin L. H. FOUNTAIN, North Carolina CORNELIUS E. GALLAGHER, New Jersey E. ROSS ADAIR, Indiana WILLIAM S. MAILLIARD, California E. Y. BERRY, South Dakota JOHN BUCHANAN, Alabama BOYD CRAWFORD, Staff Administrator LOUISE O'BRIEN, Staff Assistant DORA B. MCCRACKEN, Staff Assistant JEAN E. SMITH, Staff Assistant PAULA L. PEAK, 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 VERNON W. THOMSON, Wisconsin JOHN H. SULLIVAN, Staff Consultant Bickel, Alexander M., Chancellor Kent professor of law and legal 44 Mallison, Dr. W. T., Jr., professor of law, George Washington Univer- Wednesday, June 24, 1970: Burns, Prof. James MacGregor, Woodrow Wilson professor of govern- Thursday, June 25, 1970: 81 Chayes, Prof. Abram, Harvard Law School, Harvard University. 135 124 Tuesday, June 30, 1970: Fascell, Hon. Dante B., a Representative in Congress from the State 187 Holifield, Hon. Chet, a Representative in Congress from the State of 173 Miller, Hon. George P., a Representative in Congress from the State 169 Wednesday, July 1, 1970: Rehnquist, William H., Assistant Attorney General, Office of Legal 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 265 Hathaway, Hon. William, a Representative in Congress from the 276 Tuesday, July 28, 1970: Katzenbach, Hon. Nicholas de B., vice president, IBM Corp., and 299 Lowi, Prof. Theodore J., department of political science, University 285 Thursday, July 30, 1970: Anderson, Hon. John B., a Representative in Congress from the State 342 Pepper, Hon. Claude, a Representative in Congress from the State of 362 Quie, Hon. Albert H., a Representative in Congress from the State of 325 Wednesday, August 5, 1970: Findley, Hon. Paul, a Representative in Congress from the State of 411 Javits, Hon. Jacob K., a U.S. Senator from the State of New York__ 393 388 STATEMENTS AND MEMORANDUMS SUBMITTED Text of House Joint Resolution 1151, to require Presidential reports on the Letter from Mr. Charles A. Weil with further reference to his testimony Page 17 242 263 282-283 Memorandum submitted by Hon. William Hathaway concerning the war 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 497-504 The National Executive and the Use of the Armed Forces Abroad, Legal Memorandum on the Constitutionality of the Amendment to 505-512 513-520 The War Power. An excerpt from the Constitution, prepared by 534-538 539-544 The President's Constitutional Authority To Order the Attack on 545-549 550-552 Statement of Hon. Nicholas deB. Katzenbach, Under Secretary 553-556 The Place of the President and Congress in Foreign Policy, by 557-563 Items submitted by Hon. Jacob K. Javits, of New York, con- 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. |