terminate his authority would be a much sharper tool to use than what we have now which is the funding tool.

Mr. FASCELL. I think I follow the general thrust of the gentleman's legislation.

POWER OF CONGRESS IN AN UNDECLARED WAR

The question always arises, you see, with this, unfortunately, as to whether we can in the Congress by legislative act, terminate the constitutional authority of the President. This is the $64 question. We can't resolve it in the Supreme Court and we can't get away from the enforcement process in terms of impeachment of the President. By that time, the hostilities would be over, you know.

Mr. ZABLOCKI. Isn't it a part of the problem that the President would not sign such a proposal, that it would not become law?

Mr. FASCELL. I don't know about that. I don't mean to be critical of the gentleman's proposal because he has given a lot of thought and effort to this issue. I just say that all of us who are involved in this thought process come up constantly against the proposition of how we can legislate against an enunciated constitutional prerogative of the Executive.

The answer is that you can't.

Mr. BINGHAM. But the gentleman would agree, I would think, that this idea of the degree to which the President has the constitutional authority to carry on war without a declaration is a very fuzzy area indeed in constitutional law.

Mr. BINGHAM. It is not at all clear that the President has that constitutional authority. So within that muddy area, I would think the Congress has a right to legislate.

Mr. FASCELL. It sounds like a good base for a beginning.

IMPORTANCE OF PRESIDENTIAL AGREEMENT

Mr. BINGHAM. May I just say in response to the chairman's comment, and I think the gentleman would agree, it is our responsibility as Members of the Congress to propose what we think is right and we should not be deterred by what the President might or might not sign, particularly since the present President will not permanently be in office and there may be another President who might sign such a resolution.

Mr. FASCELL. At least while it is a factor to be considered, I certainly would agree with the gentleman from New York that we ought to carry out our responsibility as we see it.

What has been going on for the last 11 or 12 months with respect to this issue is nothing but good and healthy. We have involved a lot of people and there is a great deal more interest in the whole subject matter. We may not satisfactorily resolve it even in this session of Congress but we made a healthy start.

I think that is good, and I compliment all of the members of the subcommittee for their attention to this subject.

Mr. BINGHAM. I would like to say in conclusion that I hope the gentleman will think further about in what degree House Joint Resolution 669 is incomplete and insufficient and what ought to be added to it by way of amendment.

Mr. FASCELL. I assure you I will review your latest proposal most carefully.

NEED FOR PRAGMATIC APPROACH

Mr. ZABLOCKI. Will the gentleman yield for a comment?

Mr. BINGHAM. Surely.

Mr. ZABLOCKI. I cannot help but quote Walter Lippmann, as you quoted in your statement:

That this area where there is such great difficulty can be resolved only by the display of self-restraint, objectivity of mind and magnanimity.

Mr. FASCELL. Yes; but he means on both sides, Mr. Chairman. Mr. ZABLOCKI. If we are going to be pragmatic about this and if we want something on the statute books, if we are going to really and truly carry out our responsibility, we must do something that is feasible or possible. We cannot wait on the next President or the President after that. We must do the best we can and get the most practical language. We don't want to bring about defeat before we get started.

Mr. FASCELL. To the gentleman from New York, I think I would like to say that I think this is an important consideration, that we can make a step, even though it may be a faltering step, in this area. I do believe it is essential, however, to submit the proposition to the Chief Executive. I think that is vital.

Otherwise, we leave ourselves strictly in the area of constant confrontation between the legislative and Executive and while each of us charged with carrying out our responsibilities under the Constitution won't shirk from doing that, we will not really have achieved that spirit of purpose here in dealing with a most difficult and sensitive issue of war.

TACTICS FOR PASSING RESOLUTION

Mr. BINGHAM. Could I comment further?

I think that what the chairman says and what the gentleman from Florida says does make sense, that it might be desirable to pass House Joint Resolution 669 as it is in the hope of getting the approval of the President if it were adopted. That would be a step forward, there is no question about that.

But I still think that it is appropriate for this subcommittee or the Congress as a whole to give thought to the other question whether or not there should be legislative restraint on the President.

Seriously, we have a number of candidates for President who are currently in the Congress. If they were to commit themselves to one of these proposals and were then to be elected, presumably they would sign such a resolution.

Mr. FASCELL. That is a good point.

Mr. ZABLOCKI. I think that is wishful thinking.
Mr. Morse?

HAS CONGRESS BEEN POWERLESS TO ACT ON VIETNAM ?

Mr. MORSE. Thank you, Mr. Chairman.

Mr. Fascell, as one who is a new member of this subcommittee I have not been involved in this issue, so I am not nearly as well informed as my colleagues who are closer to the center of the subcommittee. But I do have a couple of questions that I would like to raise.

The first is an observation. I think it has become part of the public rhetoric in recent years because of our frustration about Vietnam, that the Congress has been powerless to act throughout the U.S. involvement in Southeast Asia.

Mr. FASCELL. It is often said but, of course, not true.

Mr. MORSE. Which is not true. It has not been a matter of power; it has been a matter of will. The Congress has not had a will to act. I think perhaps we mislead the American people when we talk about insufficient power. Now, I think your testimony clearly implies, and I agree, that by this resolution the Congress could not enlarge its own constitutional powers nor could we intrude upon the constitutional powers of the President. But as Mr. Bingham points out, it is a proper thing for us to seek to define with greater clarity the area of the President's constitutional authority. How would you think that House Joint Resolution 1 or any of the other resolutions which are before the subcommittee do enlarge congressional powers?

Mr. FASCELL. I don't see any enlargement of congressional power, Mr. Morse, at all. All I see is simply a formalizing of an arrangement and acknowledgement and recognition of the powers that do already exist.

SITUATION DEMANDS LEGISLATIVE FORMALIZING

Mr. MORSE. In other words, you think that if the degree of congeniality between the executive and legislative branches that Walter Lippmann spoke of were to exist, we wouldn't need this kind of legislation?

Mr. FASCELL. Well, I would say that given the speed and complexity of international problems as they exist today and as far as we can see in the future, I think we are going to have to insist on legislatively formalizing the relationship between the Executive and the legislative branch.

Up until now, it has been strictly a desire and willingness, whether it be political or genuine in the sense that it had no political motive, whatever the motive, carrying out the responsibility as the Chief Executive or the Commander in Chief. It has strictly been one that is at will, subject to getting the program through Congress or satisfying the Armed Services Committee or the Appropriations Committee, or whatever the case might be.

As a matter of fact, I think that has been a kind of weak reed in terms of the policy committee; namely, Foreign Affairs.

Because, if that were the criteria, then the only real fulcrum we would have would be the authorization of the aid program, which is no fulcrum at all.

So, then, you get down to the ultimate, how do you affect policy? Mr. MORSE. Thank you very much, Mr. Chairman.

Thank you, Mr. Fascell.

Mr. ZABLOCKI. Mr. Findley?

MEANING OF TERM: "PROMPTLY"

Mr. FINDLEY. Mr. Fascell, House Joint Resolution 1 has the word "promptly" in section 3, which provides "The President shall submit promptly to the Speaker of the House and the President of the Senate this report."

63-510-71

For purposes of legislative history, how would you define the word "promptly"?

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Mr. FASCELL. Mr. Findley, I certainly would say, not less than 24 hours and not more than several days, whatever that would be. It is a question of reasonableness again.

As I recall it, the subcommittee purposely stayed out of that kind of definition, recognizing the pressures on the Chief Executive to meet a deadline, by the same token making clear that we didn't want to have the thing dragged out until it was meaningless.

Mr. FINDLEY. I think one of the purposes behind this bill is to cause the Chief Executive and his advisers to take into account at a very early stage in their decisionmaking process this reporting requirement. Mr. FASCELL. Certainly.

Mr. FINDLEY. The necessity to give a legal justification so that it won't be an after-the-fact exercise by third- or fourth-level lawyers in the State Department.

Mr. FASCELL. I agree.

If I were going to fix a time, myself, and be stuck with it, so to speak, I would say not less than 24 or more than 72.

Mr. FINDLEY. In other words, within 3 days at the most of the commitment.

Mr. FASCELL. Of the commitment.

Mr. ZABLOCKI. Mr. Bingham?"

Mr. BINGHAM. I have no further questions.

Mr. ZABLOCKI. Again, our sincere thanks. We look forward to having your wise counsel and advice when we mark up the bill. Mr. FASCELL. Thank you, Mr. Chairman.

INTRODUCTION OF CONGRESSMAN BINGHAM

Mr. ZABLOCKI. Our next witness this afternoon is the Honorable Jonathan B. Bingham of New York, a valuable member of this subcommittee who has done considerable work in the matter of war powers legislation. He is the author of H.R. 4194, a bill to limit the authority of the President to intervene abroad or to make war without the express consent of Congress.

Mr. Bingham, you may proceed.

STATEMENT OF HON. JONATHAN B. BINGHAM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. BINGHAM. Thank you, Mr. Chairman, and members of the subcommittee.

I appreciate this opportunity, Mr. Chairman, to present some further views on the crucial matter of Presidential and congressional authority to engage in hostile foreign action in the absence of a declaration of war. You and the members of this subcommittee may recall that I was a sponsor in the 91st Congress of H.R. 18539, a bill to limit the warmaking authority of the President, and that I testified on that legislation before this subcommittee last July, H.R. 18539 has been reintroduced in this Congress as H.R. 4194.

Since that time, there has been a great deal of further discussion and legislative action on this matter. The House passed House Joint Resolution 1355 on November 16, 1970. The Senate failed to act on that or

similar legislation in the 91st Congress. This discussion has raised nagging doubts in my mind about some of the provisions that are being given serious consideration by the Congress, particularly in the Senate, and the American public, and has changed my thinking in several respects. As a member of this subcommittee, I look forward to the opportunity to pursue some of these issues in the course of questioning witnesses in these hearings, so I will not spend a great deal of time on them here. I do want to point out to the subcommittee at the outset, however, several conclusions I have reached which may be of interest.

FUTILE TO PRESCRIBE WAR CIRCUMSTANCES

First, I am forced to conclude that it is quite futile and unwise to attempt specifically to prescribe the circumstances under which the President may engage in hostilities in the absence of a declaration of war. If the criteria stated are sufficiently broad, they amount to no restraint at all. This is especially true since successive Presidents have shown themselves quite capable of interpreting congressional prescriptions to suit their own needs and to justify their actions. Surely, the Gulf of Tonkin resolution is a striking illustration. Highly restrictive criteria, on the other hand, could interfere with the President's capacity for quick, flexible response under circumstances that could prove tragic. The Javits bill, which I understand has been introduced by Congressman Tiernan, H.R. 4673, for example, in my view, would have inhibited or prevented President Truman from responding as he did to the invasion of South Korea. Similarly, the Javits bill could make it difficult for a President to respond adequately to a sudden Soviet-Arab attack in the Middle East.

I believe, with respect to the Javits bill, that in testimony before the Senate Foreign Relations Committee, Senator Javits said that in such a case if there were an invasion of Israel, the President could use the paragraph in his bill which refers to the necessity to protect the lives and property of U.S. nationals abroad.

Now, that illustrates my point. I think that would be a twisting of the purpose of that phrase.

It illustrates the point that an ingenuous mind can find an excuse under almost any set of criteria for doing what he wants to do.

So, it seems to me that any effort to prescribe circumstances in which the President is authorized to deploy combat forces is destined to fail either by imposing, in effect, no real restraint on the President or too

much.

"30-DAY" PROVISION ILL-ADVISED

Second, it is my judgment that any deadline on Presidential or congressional action is ill-advised and probably unworkable. The 30-day provision of the Javits bill and the bill introduced by Congressman Chappell, with diverse cosponsorship, and very interesting cosponsorship, I might say, Mr. Chairman, after which Presidential action. would have to be terminated unless continued by Congress, could well force the Congress into a premature decision or terminate Presidential action before a full assessment could be made of the situation.

This is precisely the point which was made earlier by Congressman Fascell.