not make adequate provision for fast action in situations in which Congress is not in session (for example during an election year). Moreover, in requiring a formal declaration of war as the only means of authorization for categories other than the four listed, the bill rejects the constitutional practice which properly treats any specific form of congressional authorization as sufficient, a practice which was specifically adopted by the committee during the "National Commitments" hearings. The bill also seems inconsistent with the United Nations Participation Act of 1945 which provides that "[t]he President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said charter and pursuant to such special agreement or agreements [an art. 43 agreement] the Armed Forces, facilities, or assistances provided for therein. ***'' 32 Though no article 43 agreement has yet been concluded, the recent Brewster report of the United Nations Association recommends a renewed effort to negotiate such an agreement.33 In light of the critical need to strengthen the capability of the United Nations it seems unwise to discard the United Nations Participation Act even if it has not yet been implemented.

S. 731 may also be overly restrictive with respect to the operation of the 30-day limitation and the applicability of the procedures for expedited consideration. Inexplicably, the commendable procedure for expedited consideration is only available with respect to continuation of hostilities within the four categories of initial Presidential authority. Other situations would not even benefit from these expedited procedures, yet the President would be prohibited from acting even on an emergency basis until he first secured a congressional declaration of war. Even in the areas in which the expedited procedure is applicable, Congress may still be unable to affirmatively act within 30 days, possibly because of disagreement about the modalities of action or restrictions on the action rather than because of any disagreement about whether the action should be taken. The bill would also remove any flexibility now possessed by Congress in exercising discretion about the advisability of a full congressional debate at the time of the action.

These examples suggest the difficulty if not impossibility of satisfactorily delimiting Executive authority in advance (and particularly of satisfactorily delimiting it in advance by a purpose of the action test). Efforts to delimit in advance despite these difficulties are likely to lead to a rigidity which would destroy presidential independence needed for the management of crisis situations. Perhaps for these reasons the witnesses testifying before the House Subcommittee on National Security Affairs last summer on similar proposals then pending before the House, largely agreed on the danger of approaches which sought to delimit Presidential authority in advance even though they disagreed on the constitutional implications of such measures.34

Finally, though the congressional interest in improving constitutional processes in the use of the Armed Forces abroad should be encouraged, efforts aimed principally at restricting Presidential authority in advance may prove too much. Congress already has consitutional authority to terminate major hostilities, at least where such hostilities require initial congressional approval.35 As such, any gain from restricting Presidential authority or from an automatic 30-day authorization deadline hardly seems worth the price. Conversely, as a result of his power as the principal representative of the Nation in foreign affairs, the President may frequently be in a position to precipitate or avoid war by the diplomatic posture 31 See the Report of the Senate Committee on Foreign Relations, 90TH CONG., 1ST SESS., National Commitments 25 (No. 797, Nov. 20, 1967). "The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities." Id. Constitutional scholars are in substantial agreement with this principle. See, e.g., Reveley, supra note

1 at 1289.

32 59 Stat. 619-621 (1945).

33 See "Controlling Conflict in the 1970's," The Report of the United Nations Association of the United States Policy Panel on Multilateral Alternatives to Unilateral Intervention 41 (1969) (The Panel was chaired by Kingman Brewster, Jr.).

A See, e.g., Congress, The President, and the War Powers, supra note 1, at 23-25 (McGeorge Bundy), 36, 38, 49, and 77 (W. T. Mallison, Jr.), 45, 50, 56-58, 79 (Alexander M. Bickel), 58, 74, and 75 (Williain D. Rogers), 89 (James MacGregor Burns), 130 (John Norton Moore), 135-37 (Abram Chayes) 210 (John R. Stevenson), 216 (William H. Rehnquist), 301 (Nicholas de B. Katzenbach). On the constitutional issues Professor Mallison expressed doubts about the constitutionality of such proposals and Professor Bickel supported the constitutionality of such proposals. See id. at 38, 49, and 77 (Professor Mallison) and at 50 (Professor Bickel). 35 It is worth noting that the Articles of Confederation assigned the Congress the power to determine “on peace" as well as on war. Yet at the Constitutional Convention a motion by Mr. Butler "to give the legisla ture [the] power of peace, as they were to have that of war," failed of adoption. The remarks of Mr. Gerry who seconded the motion suggest that the delegates expected that the Senate rather than the Congress would make decisions "on peace," probably through the treaty power which was the usual technique for concluding formally declared wars. See NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON, 477 (Ohio University Press, 1966). ̧

which he selects. Prior to the Japanese attack on Pearl Harbor, it was the President who played the predominant role in war-peace decisions. After the attack, the congressional declaration of war was little more than a formality. And in the European theater, President Roosevelt's decision to convoy allied shipping made it more likely that American Armed Forces would be attacked. Similarly, President Truman's decision to deploy seven divisions in Germany or the recent effort prior to the six-day war to join with other maritime nations to send shipping through the Strait of Tiran, might have precipitated an escalating series of events making congressional action inevitable. The issues in the use of the Armed Forces abroad involve a process of decision rather than a single commitment decision. Control of this process requires congressional involvement in decisions both prior and subsequent to initial commitment of the Armed Forces to combat. A vigorous congressional involvement in each of these areas would probably be more effective than reliance on mechanical tests for delimiting Presidential authority.

IV. Recommendations for Strengthening the Congressional Role in the use of the Armed Forces Abroad

Strengthening the congressional role in the use of the Armed Forces abroad is largely a problem in achieving balance throughout a range of decisions from the decision to make a national commitment to the decision to terminate hostilities. Decisions on any one issue may be predominatly executive or predominantly congressional, but the overall effect must be to reinforce the functional strengths of each branch and the essential partnership between both branches. The starting point in this process is the decision to make a national commitment. Congress should play a major role in considering national commitments which may subsequently lead the Nation into major hostilities. The setting of national priorities and goals is certainly a paradigm function of the more broadly based Congress.

With respect to decisions to commit the Armed Forces to military hostilities, the President should seek meaningful congressional authorization prior to the commitment of the Armed Forces to sustained military hostilities. In conflicts like the Korean war, in which there may be a genuine need for speed, the President would be required to submit his action to congressional scrutiny at the earliest opportunity. And in conflicts which gradually escalate, the dividing line for requiring congressional authorization might be the initial commitment to combat of regular U.S. combat units as such. The President also should seek congressional involvement whenever feasible in other circumstances and should not rely on exaggerated claims of speed or secrecy. In any sustained hostilities the President is dependent on congressional cooperation, and to fail to obtain congressional involvement when such involvement is feasible is to needlessly weaken the Presidential action as well as to weaken the constitutional structure. For its part, when considering initial commitment decisions, Congress should consider carefully the scope of its authorization and the probable implications of its action. In retrospect, although the Tonkin Gulf resolution was a valid congressional authorization for increased U.S. involvement in the Indochina war, the unnecessary sense of urgency surrounding its passage and the ambiguity of the congressional debates suggest that both Congress and the President share responsibility for a sloppy exercise of congressional authority.36 In this respect the standards developed for such authorization during the course of the national commitments hearings are a useful starting point.37

It seems probable that in a post-Vietnam world, Congress will be particularly sensitive to the need for care in authorizing sustained hostilities. Even so it might be helpful in confirming the congressional role in the commitment of the Armed Forces to military hostilities if Congress would require a report from the President whenever there is a substantial shift in the deployment of troops abroad or a commitment of the Armed Forces to military hostilities. The reporting idea in the proposals before the committee and in House Joint Resolution 1, which is the parallel legislation in the House, is sound and might be adopted by Congress as a useful step. Such a requirement also has the advantage of avoiding the constitutional and practical dangers in efforts to delimit Presidential authority in advance while operating to trigger congressional action where needed and to hasten an

For a discussion of the legal effect of the Tonkin Gulf Resolution see Moore, The National Executive and the Use of the Armed Forces Abroad, supra note 1, at 36-37 & 38 n. 16. And with respect to the constitutional issues in the Cambodian incursion see Moore, Lejal Dimensions of the Decision To Intercede in Cam'rod.a, 65 AM. J. INT'L L. 38, 61-72 (1971).

* See Report, National Commitments, supra note 31, at 26.

orderly common law growth in the division of authority between Congress and the President. It might also be useful in encouraging greater Executive cooperation with Congress if Congress were to adopt expedited procedures for the authorization of certain kinds of non-major hostilities. Senator Douglas suggested such procedures at the time of the constitutional debate during the Korean war and if such procedures were carefully safeguarded to assure meaningful congressional authorization they might encourage greater cooperation between Congress and the Executive.38 Finally, in the exercise of its concurrent authority to terminate major hostilities, Congress should play a continuing role in reexamining major policy. To facilitate this role it might be helpful to create a mechanism for continuing cooperation between Congress and the President during the course of major hostilities. For example, it might be useful to encourage periodic meetings between the President and congressional leaders during the continuance of sustained hostilities. Similarly, it might be useful for Congress to create new machinery to facilitate such continuing communication with the Executive. One possibility would be a joint congressional body composed of appropriate representatives from the Foreign Affairs, Appropriations, and Armed Services Committees of both Houses. Whatever the mechanism, there is a major need to improve the communication between Congress and the Executive concerning the exercise of the war powers. I would also urge the importance of congressional oversight continuing to proceed on a nonpartisan basis.

In considering proposals for strengthening the congressional role in the use of the Armed Forces abroad Congress should not let the present dissatisfaction with the Indo-China war lead to a proposal which may alter the proper balance between Congress and the Executive. The Indo-China war will come to an end, but the need for balance between the Executive and Congress will continue. In August 1937 the Young Democrats of America voted unanimously at their national convention to endorse the Ludlow amendment requiring a national referendum before declaration of a foreign war.39 Five years later as the Nation fought World War II the proposal seemed strangely dated. History teaches that we tend to respond to past problems rather than anticipate future dangers. In the long run a commitment to a balance between congressional and Presidential authority seems the best safeguard to avoid this trap.

38 See Douglas, supra note 7, at 4649.

"I submit, moreover, that we of the Congress could make it easier for the President to consult us in the event of such a national emergency, and to share any attendant responsibility, by so revising our rules that congressional action in such matters can be speeded up. The House, for example, might waive for this range of subjects the formal engrossing of a bill and the Senate could for such issues permit the vote on cloture to come more quickly after the submission of the petition."

Id.

* See 84 CONG. REC. 2055 (1939).

STATEMENT BY CHARLES A. WEIL, OF NEW YORK, N.Y.

Thanks for your kind invitation to supplement my testimony of last July 9 opposing presidential war power legislation, that would fetter the Executive, the only branch qualified and staffed to implement a strategy of power balance requiring forward deployment and, if necessary, prevenient war.

This invitation is particularly appreciated evidencing Mr. Zablocki's objectivity though sponsor of House Joint Resolution 1, the least exceptionable of the pending bills. For House Joint Resolution 1 calls for the leveling with the people and Congress my testimony recommended ad hoc; under the special circumstances of the Indo-China war, if the suppressed justification I sought to lay before the Fulbright and Symington committees was the undisputed beachhead doctrine, particularly since the Sino-Soviets were aware of it. (Prior testimony, point III at pp. 250, 251-254, pp. 258, 262–263.) However, such special circumstances may not always obtain, as for example, those testified to by Ambassador Sullivan, page 399, before the Subcommittee on U.S. Security Agreements Abroad of the Committee on Foreign Relations, U.S. Senate part 2, relative Laos.

There is one point only to add to the objections I was privileged to raise to the then pending war powers bills (hearings, pp. 248-251 and 256 of the printed record) submitted hereunder:

That is the capability; under present rules of procedure, not expressly provided for in the Constitution; of concealment by a Foreign Relations Committee chairman; a position likewise not expressly provided for in the Constitution; from other members of his committee, the two Houses of Congress, and the public; of the real political and military objectives of combat, as in Indochina, where in the informed discretion of the President, for reasons of State, such reasons and objectives could not be enunciated by the last five Presidents.

To leave such absolute discretion in the hands of one mortal; perhaps unqualified, subject to human infirmities, and/or not necessarily privy to top secret intelligence and professional advice available to the executive branch; is something never contemplated by the framers of the Constitution, who also could not have foreseen the United States becoming the global arbiter or power balancer. What is worse, it involves a gamble on the security of 200 million Americans and of the billions in other countries dependent on the power of this country; that no man in his senses could contemplate today.

FIAT FULBRIGHTS PEREAT U.S.A.?

Since 1967 I have been in protracted correspondence with Senator Fulbright seeking to lay before his committee one such geostrategic objective or explanation fully disclosed, without avail to him. I have read thousands of pages of Senate Foreign Relations Committee hearings, that have received wide coverage in the media and from which hearings it appears Senator Fulbright has asked only witnesses he knew, or should have known, did not know the answer, or were not authorized to answer frankly, fully, his queries relative the only relevant, material questions; as to the overall objectives and national security geostrategic justification for fighting in Indochina (e.g. CORDS hearings pp. 15-16).

Finally, in November, 1969, Mr. Fulbright wrote me to submit a memorandum on the subject for his committee, which I did at once. He discreetly ignored the plea therein to be cross-examined on it. There is no evidence any other member of the committee or Senate saw it until it went to the printing office many months later. I charged Senator Fulbright with concealment and on May 26, 1971, offered to apologize if one member of the committee would write he had seen it prior to closure of the hearings. At date of writing no such communication has been received. (Cf. CORDS hearings p. 746.)

For that memorandum gave an answer, he has, I believe, never really wanted answered, to use his own words, "to help inform the American public opinion" (CORDS hearings, p. 1). All of which is entirely apart from his own qualifications to be the discretionary security guardian of 200 million Americans in light of his allegation geopolitics is "hocus pocus" (speech to the Senate August 24, 1970).

63-510-71- -8

Seven of the 15 members of the Senate Foreign Relations Committee were elected from States which cast only 2,311,000 votes compared to the 73,198,000 who voted in the Presidential election. Borah was elected from Idaho (291,183 total votes in 1968). Nor is the possible perversion of congressional hearings into ex parte proceedings or kangaroo courts the only, though principal, objection to the pending legislation.

The Vice President set them forth; that is: the distortion and private censorship of crucial facts and considerations by the academic-media-complex; including what he overlooked, the pollsters and book publishers, mentioned in my prior testimony, point II (pp. 249-51 and p. 258) of the printed hearings and more fully covered in my book, "Curtains Over Vietnam" (pp. 11-17 on the "Copperhead Curtain" and pp. 65-70 on "The Educational Gap").

The conjecture of such misconduct in committee and a subverted media make the proposed limitations on the President's powers at best a piece of personal power greediness, at worst a recipe for suicide of a Nation whose security, prosperity and standard of living rest on being the global power balancer.