AUTHORITY PROVIDED BY JAVITS BILL

Mr. BINGHAM. I think that is a very interesting thought and it is one which has passed through my mind applying to the Javits bill, but it is not contained in the Javits bill.

Mr. HORTON. No, it is not spelled out.

Mr. BINGHAM. The Javits bill is one-time authority and that goes indefinitely. There is no requirement that it be reinstated every year or every 6 months.

Mr. HORTON. I am not saying that the Javits bill is perfect, and I realize that you said the same thing with regard to your bill. My proposal for a joint committee is not a perfect idea. It is just to put some of these ideas into the hopper so that the committees can formulate meaningful legislation. The point is that the warmaking powers as they apply to the Congress today are not spelled out very well and they are not carried out at all.

It seems to me they do have to be spelled out and that the Congress does have to reassert its authority in this field. Otherwise, the Constitution is meaningless. The Commander in Chief's authority, in my judgment, does not mean that the Executive can commit our forces ad infinitum whenever the Executive wants. I think that is part of the problem we have with the Vietnam situation.

SEES PROBLEMS IN BINGHAM RESOLUTION

Mr. BINGHAM. I thank the gentleman.

I would just like to ask him with all respect to have a look at the resolution I put in today and see if it does not carry out the intent of his provisions and of the Javits bill in a way that might give rise to less difficulty.

Mr. HORTON. I am sorry I was not here when you read your statement. But my initial interpretation of your resolution is that there is a continuing authorization for the President to act unless the Congress takes some action to disapprove it.

Mr. BINGHAM. Unless one House take action to disapprove it.

Mr. HORTON. I think that the resolution fails to recognize the warmaking authorities that are granted to the Congress. In other words, I think that you are begging the authority granted to the Congress under the Constitution. You are saying to the President, "Go ahead, whenever you declare war, whenever you want to commit our forces, you go ahead and commit them. But if we don't like it, we will step in and disapprove it and you have to pull them all back."

I would rather take an affirmative approach. I would rather say, "These are the only times you can commit our forces unless you have a declaration of war." With a declaration of war, of course, that is different, but we are talking about undeclared war. "If there is not a declaration of war, these are the only times you can commit American forces. You can commit them for 30 days. In that interim, you have to report to us and the Congress will have to take action. We will have a committee of the Congress who will be working with you at all times." In that way, we will have better liaison and better relations with the Executive in this field, and perhaps we can act better when an emergency situation arises.

As I say, I would prefer to do it on the affirmative rather than "You ahead and do it no matter what the situation is and if we don't like it we will disapprove it."

go

Mr. BINGHAM. I appreciate the gentleman's thoughts. Does the gentleman really think that the conditions that are spelled out, one, two, three, four, particularly three and four, are in any way restrictive on what the President can do if he chooses to carry out the

Mr. HORTON. Are you talking about H.R. 7290?

Mr. BINGHAM. Yes, the condition that he can act to protect the lives of U.S. nationals abroad and force to comply with national commitment resulting from affirmative action and so on.

Mr. HORTON. The point is that if he does commit our forces, the Congress, within 30 days or shorter under section 204, can say get out of there.

DESIRABILITY OF SPECIFYING WAR CONDITIONS

Mr. BINGHAM. Wait just a minute. I am turning to a different subject now, which is the desirability of attempting to specify the conditions under which the President can act in the first instance. Although I had such a list in my bill last year I have come to the conclusion there is no such purpose to be served in trying to provide a list because either you make it so broad to be meaningless or it is unduly restrictive. I think that these conditions actually could be interpreted so as to permit a President to do more or less as he chose and then the later provisions would come into effect. But looking at just the four situations under which you permit the President to act, are you happy with that listing?

Mr. HORTON. Basically, yes, with the idea that those are the situations in which the President could act in the absence of a declaration of war.

It is a very interesting question and I am glad that is being brought up. It has not been brought up so far as I know in the history of our country, and I think it is important for us to spell it out. The point you make is a good one. It is one that we should give consideration to; namely, whether you use a list or whether you don't use a list. I would prefer to list the conditions, as does the Javits bill and my own, rather than say, "You go ahead and do it and we will come in and blow the whistle if we don't like it."

But I certainly respect your view and your approach and I know you have given a lot of thought to it. I think, basically, you and I have the same concerns; namely, to spell out what the war powers are and have some mechanism whereby we are not going to get embroiled in filibusters and definitions, and so forth, and not get any action. That has been the problem we have had to date. That is why the Presidents have moved in, in 158 instances before the Congress could move. I think it is time we updated the Constitution, if you will, and make it more meaningful in the definition of war powers so that we can exercise the responsibility we have under the Constitution.

Mr. BINGHAM. Basically, I do think we are in agreement. It is just a matter of discovering the best technique.

Thank you, Mr. Chairman.

COMMENTS ON HOUSE JOINT RESOLUTION 1

Mr. ZABLOCKI. I have one last question this time on House Joint Resolution 1. At one point you did say that you would prefer to see House Joint Resolution 1 strengthened. Would you very briefly advise the subcommittee about that?

Mr. HORTON. It is a good bill, but I would prefer something more specific and better defined.

I voted for it before, and I would vote for it again.

Mr. ZABLOCKI. The colloquy between you and my colleague from New York surely has indicated what problems we have in detailing specifics.

Mr. HORTON. Right.

VIETNAM NOT AFFECTED BY HORTON BILL

Mr. ZABLOCKI. Let me ask this question as to your bill, H.R. 7290. Title III, section 301, says:

This act shall not apply to any military hostilities by the Armed Forces of the United States undertaken before the date of enactment of this act.

Then a requirement to reporting to the joint committee on the Vietnam war would not be included?

Mr. HORTON. My bill was purposely designed to eliminate the Vietnam conflict.

Mr. ZABLOCKI. Technically, World War II is not declared ended. Technically, because of our military commitments to NATO, for example, should there be a confrontation, title III would seem to exclude presidential reporting. Am I giving a proper interpretation?

Mr. HORTON. I don't believe so, Mr. Chairman. The NATO situation would be covered under page 2, line 10, section 4. That is one of the instances in which the President could act to comply with a national commitment, resulting from affirmative action taken by the executive and legislative branches of the Government by means of treaty, convention or legislative enactment specifically intended to give effect to such commitment.

The language of title III is just to prohibit any application of this technique to the Vietnam situation.

Mr. ZABLOCKI. I am very happy to have that legislative history on your part because I think title III, section 301, could very well be interpreted to negate the entire purpose of your proposed act. Let the Rules Committee make that decision.

I want to again thank you, Mr. Horton, for a very excellent statement. We appreciate your comments and your answers to our questions.

Mr. HORTON. Thank you, Mr. Chairman.

INTRODUCTION OF CONGRESSMAN CHAPPELL

Mr. ZABLOCKI. Our final witness of the day is the Honorable Bill Chappell, Jr., of Florida. Congressman Chappell is the author and principal sponsor of House Joint Resolutions 664 and 665, relating to the war powers of Congress.

Mr. Chappell, we look forward to having your thoughts on this most important subject. You may proceed.

STATEMENT OF HON. BILL CHAPPELL, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. CHAPPELL. Mr. Chairman, let me thank you and your subcommittee for excellent work in this area.

Let me express my appreciation, too, for the very excellent bills which many of you have already introduced, and specifically the one which you passed last time in the House and which is again under consideration in this subcommittee.

If I might, Mr. Chairman, since the hour is late, and I know you would like to move on, if I might have your authorization to have my statement received in the record in toto, then I will just start with a summation, and perhaps we can proceed more rapidly that way. Mr. ZABLOCKI. Without objection, it is so ordered. (The prepared statement of Mr. Chappell follows:)

STATEMENT OF THE HONORABLE BILL CHAPPELL, MEMBER OF U.S. CONGRESS, FOURTH DISTRICT OF FLORIDA, IN FAVOR OF HOUSE JOINT RESOLUTIONS 664 AND 665, JUNE 1, 1971

Mr. Chairman, I wish to thank you and the other committee members for this opportunity to discuss measures intended to better define the respective powers of the Congress and the President in the exercise of the warmaking power.

Just last week, some 49 members joined me in introducing House Joint Resolutions 664 and 665. This measure is designed to strengthen and specify action with which both the President and the Congress must comply when American troops are committed to battle outside the United States.

We wish to commend those other persons who have introduced similar measures designed for the purposes of again having the Congress fulfill its constitutional responsibility with regard to our Nation's involvement in war. Your reasoning in House Joint Resolution 1 is incorporated in the measures which we have introduced. We respectfully ask your consideration of these bills in your deliberation on this subject as additional suggestions as to how the problem of prolonged involvement might be solved.

First, I believe we all agree that some congressional definition needs now to be made. Our Nation totters on the brink of despair in its efforts to understand America's involvement on another soil 10.000 miles away in a war we have never chosen to win.

Our youth are frustrated from battle stagnation and too often have turned to the fantasy of drugs. Thousands of mothers have cried in despair at the burial of their sons, lost to battles they were not permitted to win. Rebellion has sounded in the mass patters of feet attuned to the divisive mechanics of our international enemy.

LETTERS SHOW SCARS OF WAR

This problem plagues the citizens of our Nation daily. Letters pour into my office each day, revealing the anguished scars this war is leaving on our people. Too many young people regard our process with skepticism and our military system has suffered tremendously in both prestige and morale. Our people ache to see this matter settled. Some of our young people resort to radicalism, and our military system has been cheapened as a result of our involvement. Thousands of our comrades live among us as maimed and disfigured reminders of the horrible sacrifices of war. God forbid that history shall ever record those as symbols of a vain and ill-reasoned season of conflict.

Neither praise nor condemnation of actions, past or present, but rather their unforgettable lessons, will avail us to a sensible direction for the future. One such lesson is that no government dare commit its people to prolonged armed conflict without a clear definition of the purpose of such commitment and the will of the people to pursue them to victory. How, then, do we implement the lesson? We best do so by clearly defining the respective responsibilities of the President and the Congress with reference to the constitutional power to make war. The proposed resolution before us, I believe, is a reasonable approach to such implementation.

NO EFFECT ON PRESIDENT'S REPELLING ATTACK

This resolution in no way alters the President's power to initially engage our forces to repel a sudden attack or to protect American lives and property. It simply requires the President, within 72 hours of committing any of our Armed Forces to action in any armed conflict outside the United States, to report such committment to the Congress. If the Congress shall fail to approve or otherwise act on such report, within 30 calendar days after receiving it, the President shall within the next succeeding 30 days terminate such commitment and disengage all forces so committed.

This proposal embraces the intent of the framers of the Constitution and the thoughtful declaration of many great Americans after them.

Article I, section 2, of the Constitution states that the Congress shall have the power to declare war, to raise and support armies, to provide and maintain a navy, to make rules for the Government and regulation of the Armed Forces, to provide for calling forth the militia, to execute laws, suppress insurrections and repeal invasions, to provide for organizing an army and disciplining the militia and to make all laws necessary and proper for executing the foregoing powers, Article II, section 2, of the Constitution states that the President shall be commander in chief of the army and navy.

INTENTION OF CONSTITUTION FRAMERS

The framers of the Constitution were very deliberate in balancing the powers of this Government and those of the Congress and President, and they were deliberate for excellent reasons. All too frequently the American colonies were drawn by the King's decree into England's wars. The leaders of the newly independent republic resolved to make certain that their new country would never again be drawn into war at the direction and discretion of a single man. For this reason, it transferred the war power to the legislative branch of the newly created government.

Indeed, the framers of the constitution recognized that the President, under certain circumstances, might have to take defensive action to repel and subdue a sudden attack upon this great Nation. But that was the extent of the war making power they were willing for him to exercise. The intent of the framers is made quite clear in the proceedings of the Constitutional Convention and in the subsequent writings of our Founding Fathers. Thomas Jefferson, in a letter to James Madison, back in 1789 said:

"We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the executive to the legislative body, from those who are to spend to those who are to pay."

Pursuing this same line of thinking, Alexander Hamilton, who generally favored extensive presidential power, nonetheless wrote:

"The President is to be Commander in Chief of the Army and Navy of the United States. In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy, while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies-all which, by the constitution under consideration, would appertain to the legislature."

When, in 1846, President James Polk sent American soldiers into the controversial territory of Texas, marking the beginning of the Mexican war, Abraham Lincoln was just a young man in the House of Representatives in the State of Illinois. Lincoln felt that the President had acted unconstitutionally, and he said:

. . allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose--and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose

CONSTITUTION IS A LIVING DOCUMENT

I deeply believe that the Constitution is a living document. The Congress of the United States must activate its responsibilities under this document for determining war and peace. Although I have been a Member of this distinguished body for a very short time, I have for ten long years watched the shadow of