Ultimately, the accountability of both the President and the Congress is up to the people. They are the ultimate check, but in the meantime it is up to both our branches, executive and legislative, to constantly question each other on the policies of either branch which might lead to that most solemn of all governmental decisions, war. Hopefully, this constant questioning can take place through agreedupon arrangements so that the President and Congress can work together as urged in the subcommittee's report last year, "in mutual respect and maximum harmony toward their ultimate, shared goal of maintaining the peace and security of the Nation." But take place it must-whether in a spirit of consultation or otherwise.

NO SUBSTITUTE FOR CONGRESSIONAL REVIEW

For our part here on the Foreign Affairs Committee, there can be no substitute for systematic and periodic congressional review of exactly where and under what conditions and to what extent the United States is and should be willing to fight in any particular instance. The recent substantial increase in the committee's staff should help toward accomplishing the goal, but I would hope the committee would also take steps to institutionalize procedures insuring such a review. In addition, regardless of a Presidential report, we must provide for prompt consideration of crisis situations as they arise to insure congressional participation in the decisionmaking process.

JORDAN CRISIS: NO CONGRESSIONAL CONSULTATION

Let me be specific. Last year, during the strife in Jordan, consideration was given to sending in U.S. forces. There was time for full, though perhaps secret, congressional consultation. There was none. Why? We could have gotten into a very major war. But that is not the point. Congress should have been thoroughly consulted and authorization sought in advance of sending troops in.

Mr. Chairman, in 1941, Walter Lippmann wrote of this "gray area" of executive and legislative relations: "This difficulty can be resolved, but only by the display of self-restraint, objectivity of mind and magnanimity which are rare in public life."

For our part, Mr. Chairman, you and this subcommittee have shown that the Congress can and will show this kind of an attitude in restoring the proper balance between necessary Presidential flexibility and essential congressional control.

I most recently again learned, in the somewhat arbitrary and unannounced waiver of the congressional limitation on arms sales to Latin America, that the Executive has not yet come to share the point of view that "consultation, common counsel and continuing accountability" are essential to viable foreign and defense policies. Through your efforts and those of others in the Congress, I am hopeful that both the Executive and the Congress will have a new understanding of the relationship of one to the other, and that from this can flow more thoughtful and reasonable policies minimizing the risks of unnecessary

war.

Thank you, Mr. Chairman.

Mr. ZABLOCKI. Thank you, Mr. Fascell, for an excellent statement.

I particularly take comfort in the quote of Mr. Lippmann. I am sure when he refers to those characteristics that are rare in public life he also includes newspapermen.

IS A STRONGER RESOLUTION NEEDED?

Seriously, however, I want to ask you about your preference for strengthening House Joint Resolution 1. You do mention on page 3, and again further on in your statement, that it would be desirous to have a stronger resolution than House Joint Resolution 1.

Mr. FASCELL. I said it might be necessary, Mr. Chairman. Mr. ZABLOCKI. That is right. The point, however, is that we could have a very strong wording in a resolution which would not become. law, through a simple House or Senate resolution. Or we could attempt to pass a resolution seeking cooperation between the executive and the legislative which would be acceptable to both and be made part of the law, and to that extent, clarify the gray area in the Constitution. Which, in your opinion, would be preferable?

Mr. FASCELL. Mr. Chairman, the point you make is a very valid point in my judgment and one not to be dismissed lightly. I think it would be adding to the problem, let us put it this way, if we passed a simple House resolution or Senate resolution or a concurrent resolution, no matter how strong it is, because, after all, it takes the announced and practiced intention on the part of the Executive to make this thing work.

Therefore, I think it is extremely important to submit for the Executive signature whatever is passed by the Congress.

Mr. ZABLOCKI. As the gentleman well knows because he worked with the subcommittee, there was, was there not, a definite tacit understanding about the resolution that we worked on, that it would indeed be very likely that the signature of the President would be appended? Mr. FASCELL. I got that impression, Mr. Chairman. You did work very closely with the administration. After all, that is part of the concept in establishing the policy. It seems to me that this is the first step. I don't know how else you can change the attitude or the policy or how you can even begin to institutionalize it unless it does become a matter of law with the agreement of the Executive that it will be fully implemented.

Mr. ZABLOCKI. Therefore, I would definitely appreciate, my colleague and I value your counsel and your wisdom in this area-if it might be necessary to have a more strongly worded resolution, just what would you include?

Mr. FASCELL. Mr. Chairman, I had not given any detailed thought to that. You have many suggestions which might be incorporated. I have just seen this chart which is an excellent means of comparison, by the way, of all the resolutions pending. There might be some better way, for example, to institutionalize the arrangement. I don't know. I haven't given it that specific consideration.

ANNUAL AUTHORIZATION FOR STATE DEPARTMENT

Mr. ZABLOCKI. As you well know, in the other body the chairman of the Foreign Relations Committee has introduced a proposal which would provide annual authorization for operating funds of the State Department and USIA.

Would you favor such legislation as a means of obtaining greater influence for Congress, increased influence on foreign policy and national security decisions?

Mr. FASCELL. I do not quite follow that, frankly. It is kind of like the ball-bat approach. I do not see how you can work on administrative funds to influence policy because the ultimate threat is that you are going to shut down the Department if they don't do what you want to do. I don't see that as a satisfactory answer. It might be useful.

Mr. ZABLOCKI. As a threat?

Mr. FASCELL. Yes. But it is not the kind of thing we are talking about here where you have divided powers under the Constitution, particularly with respect to the issue of war.

On the other minor things, I don't think there is any question how effective it would be to hold back their funds for administering the Department. I think you could get all kinds of agreement out of that. Mr. ZABLOCKI. Thank you very much, particularly for that last observation.

Mr. Findley?

Mr. FINDLEY. Mr. Fascell, I want to join the chairman in congratulating you on the early initiative you made about a year ago and on your statement here today.

Mr. FASCELL. I thank you. It is certainly no earlier than yours because you were one of the first in this area.

APPLICATION OF RESOLUTION TO LAOS INVASION

Mr. FINDLEY. As I have discussed this proposal with constituents and people elsewhere, they have raised the question as to how the enactment of House Joint Resolution 1 would change the situation that prevails today. If we take the introduction of our airpower into Laos earlier this year, I think we have a case in point, do we not? Mr. FASCELL. Yes.

Mr. FINDLEY. As of that date, the Tonkin resolution had been repealed by the Congress, so the President could not draw upon that document as his authority for military action over Laos. But, as I understand House Joint Resolution 1, had it been on the books, the President would have had the obligation within a very few days to present in writing a report to the Congress stating the factors that caused him to take this action and citing his legal, constitutional, and treaty authority for so acting.

Mr. FASCELL. The gentleman cites a very specific case of the application of the resolution. There is no question about it.

Mr. FINDLEY. I think it is quite possible that this report would be received and filed, but at least the President would have placed before the Congress, and this subcommittee, a very important report concerning military action that he had taken. It would then be the burden of the Congress to take a look at that report, perhaps hold hearings on it, and if it deemed advisable, pass judgment upon whether or not the President acted properly.

Mr. FASCELL. The gentleman from Illinois is quite correct, because what it does, you see, is institutionalize the recognition of the role of the Congress. Up to now, this has been set in precedent as a kind of

arm's-length proposition; sometimes it works well and sometimes it does not work at all.

Here we would have the opportunity by law to institutionalize at least that aspect of it.

It seems to me that is worthy of accomplishment.

Mr. FINDLEY. It would establish a formal relationship between the President and the Congress in respect to war powers where no such relationship exists today.

Mr. FASCELL. Except by precedent, practice, and procedure.

COMMENTS ON THE JAVITS PROPOSAL

Mr. FINDLEY. The Senate committee seems to have pretty well embraced the Javits' approach, which seeks to define the reserve powers of the President and to set a 30-day time limit on the President in using military force under these reserve powers.

Do you have any comments on the Javits' approach?

Mr. FASCELL. Yes, I do. The objective, of course, is laudable, but, when one extends the application of that requirement one can foresee a fantastic amount of difficulty, it seems to me.

Mr. FINDLEY. Could you illustrate that point?

Mr. FASCELL. For example, the President commits troops abroad in an engagement. Now, under the requirement in 30 days, if Congress does not act, the President must automatically terminate-is that my understanding of the language?

Mr. FINDLEY. That is the way I read it.

But the question comes to my mind whether he could really escape his constitutional responsibility because Congress passed the law. Mr. FASCELL. Of course he could not. I don't see how he could comply with it. That is No. 1.

If he is in that kind of serious situation, he would say, "Under my right and obligation and authority under the Constitution, I am going to ignore that provision," period. That is all there is to that.

What is the enforcement? The alternative is impeachment. A direct confrontation with the Executive on that kind of issue seems to me to be of little value to us at the time of some emergency, at least an emergency which the President in his judgment has seen fit to commit the Nation to. That is problem No. 1.

Problem No. 2: Supposing we are in this subcommittee and the Nation has been committed to war by the Executive? Are we at the end of 30 days going to just say, "Well, that is the end of that."

By doing nothing, we force him to quit. Suppose, however, we hold hearings within the 30-day period, and then we act affirmatively? In other words, are we forced to ratify the action? What would be the end result?

I don't know, but my experience tells me that when the Executive is that serious in the commitment of the Nation to war the Congress is pretty much apt to follow that commitment.

HISTORY OF CONGRESS AND WAR DECLARATIONS

Mr. FINDLEY. In our history has there ever been a circumstance in which the Congress failed to respond to a Presidential request for a war declaration or an instrumentality of similar sort?

Mr. FASCELL. Not that I can recall. As a matter of fact, as we all know, there are various ways of doing it without putting the Congress and the Executive in direct confrontation in that period of time. For example, we still have the constitutional control over the expenditure of funds where there is no constitutional conflict there whatever. But I am afraid that just on the policy decision, which is where this resolution stops, this would then present a different problem entirely. Besides that, you would have different committees involved, I am thinking of the leadership we would have to have in the followup of this issue on the floor.

In one case, you would have the Foreign Affairs Committee on strictly a policy question. In another case, you would have Armed Services, and Appropriations on the followup question.

Which would prevail?

In the final analysis, you know, if you have the votes you win. If you don't have the votes, it makes no difference what you said in the committee. That is the problem I see with that. In other words, it seeks to put an element of enforcement which actually doesn't exist in the final analysis and it could become an instrument of automatic ratifica-. tion.

Mr. FINDLEY. Thank you, Mr. Chairman.
Mr. ZABLOCKI, Mr. Bingham?

A PROPOSAL BY MR. BINGHAM

Mr. BINGHAM. Thank you, Mr. Chairman.

I would like to say that, as usual, I find myself in substantial agreement with everything the gentleman from Florida has said. I, too, feel that House Joint Resolution 1 does not go far enough. I have some proposals to make that would add to the authority to require the President to terminate a military action that he had commenced without a declaration of war.

Mr. FASCELL. Will the gentleman yield at that point?

I am sorry to say that I haven't read his bill, but I shall, particularly on that point.

Do I understand that you bring all other actions by the President except in case of a declaration of war by the Congress

Mr. BINGHAM. As a matter of fact, I have submitted today a new bill which departs somewhat from the bill I introduced last year and earlier this year because I came to the conclusion that it was dangerous to try to spell out the conditions under which the President can move without the authority of the Congress. So, in my new proposal, I skipped all of that and simply state that in the event the President has initiated hostilities, that his authority to continue those hostilities could be terminated by action of either House in opposition. This seems to me to meet the gentleman's point, which I share, that the 30-day limitation is arbitrary, it may take place at a time when the Congress is stirred up and emotionally involved in the beginning of the action. It is also arbitrary as to time. Thirty days from when might be a very difficult case to determine.

The theory of my resolution is that the President should be able to carry on this type of hostility only if he has at least tacit approval of both Houses of Congress, and giving either House the authority to