gation to send a war message asking for a declaration of war against the nation in regard to which he has responded in self-defense?

Mr. LÉVITT. Well, Senator, I am puzzled and was going over rather swiftly, was rereading, the Constitution, article II as you were speaking. I don't find any obligation on him to send a message asking for war in the Constitution. No, he doesn't have to do that. He isn't doing that. If the Congress wants to declare war it doesn't have to wait for the President. If the President has to defend the United States he doesn't have to wait for Congress in the emergency that you have just stated. But I find no obligation in the Constitution which would be that he should come to Congress and ask for a war message.

PRESIDENT WILSON IN WORLD WAR I

Senator MORSE. Let me give you two historic examples. In 1917, prior to his sending the war message to the Congress, we had clear evidence from the Imperial German Government of its hostility toward the United States. The President did send a war message, in the early part of the war. I paraphrase him, but I am sure very accurately, President Wilson said, "I am without constitutional authority to make war in the absence of a declaration of war."

Mr. LÉVITT. Yes.

Senator MORSE. Now, he had the constitutional authority to respond to the defense of the Republic.

Mr. LÉVITT. On the high seas or in the country.

Senator MORSE. Which is one thing. But it is another thing to go beyond immediate self-defense and plunge the Nation into war without a declaration of war.

Mr. LÉVITT. Well, now, Senator, may I call to your attention your language is you know I am not captious about it with you. Senator MORSE. I understand.

Mr. LÉVITT. I am not clear in what you mean there. Take the situation where we were attacked on the high seas by German submarines, as it was then. The President immediately sent a protest when the first ship was sunk. Those protests were ignored. The President warned that if they occurred again he would issue orders to defend any ship that was there and he ordered the boats under his command lawfully to defend. Now that was within his prerogatives.

Senator MORSE. I agree.

Mr. LÉVITT. Now, from that point on the question only was, was this defensive action? If you are 3,000 miles away, and you deliberately send your ships 3,000 miles off where you know they will be attacked, then are you defending or are you making it compulsory upon you to defend somewhere where there is not defense?

Senator MORSE. Let me add an assumption to my hypothetical before I come to the second historic example. Let's assume in World War I, where President Wilson made very clear that our Navy would respond to direct action against any further breaches of our rights on the high seas by the German Imperial Government, instead of sending his war message on April 17 to the Congress, President Wilson had ordered six divisions of fighting troops to Europe.

Mr. LÉVITT. He is through. That is the point where he has no longer authority to act. That is an act of war.

Senator MORSE. That is the point.

Mr. LÉVITT. Self-defense stops where aggression begins. And aggression begins when you haven't reached the wall, you know what I mean. You go as far as, I mean, to defend yourself with everything that is permitted, but when you take the offensive, offense is not defense.

Senator MORSE. That is the point I wanted to hear you discuss. Mr. LÉVITT. Very good.

Senator MORSE. Because that is the

Mr. LEVITT. When that point is reached is a matter of fact.
Senator MORSE. Is a question of fact?

Mr. LÉVITT. Yes.

Senator MORSE. I was going to make that point. But that is the constitutional point I wanted to bring out.

PRESIDENT ROOSEVELT AND THE PEARL HARBOR INCIDENT

The second historic example which bears us both out in my judgment is the action of President Roosevelt following Pearl Harbor. When that attack was made on our fleet he issued orders at once to respond to that attack in carrying out his self-defense prerogatives. But he then proceeded to draft his war message and sent his war message to the Congress. May I say to the doubters, read it, he left no room for doubt as to his obligation to send a war message asking for a declaration of war, and look at how serious that situation was, our Pacific Fleet crippled.

Mr. LEVITT. I agree, sir.

Senator MORSE. But he proposed a declaration of war. Am I right, therefore, in my interpretation that it is your position that following the Tonkin Bay resolution passed by the Congress the President had no constitutional authority to proceed to commit acts which I call acts of making war, acts of committing aggression in Southeast Asia, without a declaration of war?

Mr. LÉVITT. I believe, sir, that I would say "Yes" to your position. The CHAIRMAN. Thank you very much, Judge Lévitt. We are very appreciative of your contribution.

Next, Mr. Montross.

Mr. Montross, we are very happy to have you this morning. We have your mimeographed statement which we will insert in the record as submitted. Do you wish to follow the same procedure Judge Lévitt did, just begin to discuss your statement, or do you prefer to read it, or do you wish to discuss it in the same procedure we followed with Judge Lévitt?

STATEMENT OF GEORGE M. MONTROSS, OF DETROIT, MICH.

Mr. MONTROSS. I am sorry, Mr. Chairman, I didn't hear just exactly what you said.

The CHAIRMAN. I say your statement which we have before us wil! be inserted in the record as submitted. Shall we proceed in the same fashion we did with Judge Lévitt, whereby you will comment upon it and we will ask you questions? Unfortunately we have

Mr. MONTROSS. May I read a briefer statement?
The CHAIRMAN. Yes, sir. Please, sir.

Mr. MONTROSS. Shall I proceed?

The CHAIRMAN. Yes, will you please proceed?

Mr. MONTROSs. Mr. Chairman and members of the committee, I appear here as a much concerned citizen interested in the form of government set forth in the Constitution, which form of government I say without hesitation is not fully in operation. I am gratified that your committee is considering a proposal directed at that very situation. If the Constitution had been observed this proposal would not be necessary. Its adoption would mark a turning point, a warning, that henceforth the Constitution is to be observed.

The authors of the Constitution expressed in debate abhorrence at the President functioning as an elective monarch, who, though elected, would wield the power that monarchs of the time exercised-not the mere figureheads of today-and imposed restrictions as safeguards to protect the people against the evils of one-man government. Although all officials, including the President, Members of Congress, and of the courts, are under oath to observe and abide by the terms of the Constitution, all three branches of Government have shamefully ignored vital restraints and limitations with the result that if today we do not have an elective monarch in the Presidency, we have something very close to it.

LIMITATIONS OF PRESIDENT'S MILITARY AUTHORITY

Mere existence of a Constitution on paper does not insure constitutional government; that depends upon observance. The safeguards dealt with in this statement concern the limitations on the powers of the President as commander in chief of the Army and Navy and to make commitments to foreign nations.

Article II of the Constition provides that

The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.

Under this provision, standing by itself, the idea often expressed that the President has absolute control of the armed forces would seem to be justified; but though it is not all, that is all the President and Congress have been looking at. They have not been looking at provisions under Article I that specify the powers of Congress which very severely limit the President's military authority.

First: "Congress shall have power to declare war." This expresses the principle that the people shall not be victims of the frail judgment of one man, but shall have the benefit of the judgment of their many representatives in Congress. The power to declare war is the power to initiate it. Whatever the method or fashion of beginning a war may be, the principle substance, and essence remains. That is the decision to engage in war, except when the Nation is actually attacked or when specifically bound by treaty to act upon the occurrence of certain circumstances, shall be made by the Congress-not by the President.

Second: "Congress shall have power to make rules for the Government and regulation of the land and naval forces." The power to govern and regulate is the power to control. The President at the

head of the armed forces is necessarily part of them and therefore is subject to congressional control. The President is commander in chief of the Army and Navy, subject to the will of Congress.

How often we hear that the President is commander in chief of the Army and Navy; how seldom, if ever, do we hear or read that Congress has power to govern and regulate the armed forces?

Indeed, it has become quite customary for Members of Congress to use the short term, just commander in chief, which could leave the impression that perhaps the President is commander in chief of the Government or of the people.

Under the Articles of Confederation, from which the authority to makes rules for the Government and regulation, and so forth, was transferred to the Constitution, the appointment of a "Commander in Chief of the Army or Navy" was provided for. It could hardly be contended that such an appointed personage, with the overhanging power of Congress to govern and regulate. would have complete control of the armed forces. It was only the authority possessed by such an appointee that was transferred to the President, and no more.

EXERCISE OF CONTROL OF THE ARMED FORCES

The stock superficial argument of those who say the President, as commander in chief of the Army and Navy, has control of the armed forces is that the power has been exercised by Presidents at least 150 times. A recitation of what has been done in the past is not proof that it was in accordance with the Constitution.

It is perhaps unfortunate that the Congress has failed to enact general rules under which the President could lawfully take military action to protect the lives and property of U.S. citizens while in other countries, because the many times such actions have been taken have been without congressional authority, have become commonplace and given rise to the unwarranted assumption that the President possesses unlimited military power.

Early in his administration, President Eisenhower expressed recognition of constitutional military limitations by stating he would not take the Nation into war without congressional authorization. This was in contrast to the course pursued by President Roosevelt, who involved the United States in World War II long before the tragic event at Pearl Harbor-not only without congressional permission, but actually in violation of the Lend-Lease Act provision (inserted against Presidential wishes) that "Nothing in this Act shall be construed to authorize or to permit the authorization of convoying vessels by naval vessels of the United States."

it.

Notwithstanding the flouting of the law Congress did nothing about

President Eisenhower confirmed his early statement by requesting Congress to authorize him to use the armed forces in connection with the defense of Formosa, later making the same request in regard to the Middle East. In the case of Formosa, Congress complied by adopting a resolution of outright authorization:

That the President of the United States be and he hereby is authorized to employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack ***

However, when it came to the Middle East, although the House of Representatives passed a similar resolution, some Senators, so I understand, demurred, contending without warrant that military action was the responsibility of the President alone, that congressional authorization would transgress Presidential power, ignoring the power of Congress to govern and regulate the land and naval forces as well as to decide whether or not the Nation was to be involved in war. The result was that the resolution as finally adopted was diluted to the nebulous and enigmatic declaration:

1

Furthermore, the United States regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East. To this end, if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism; provided, that such employment shall be consonant with the treaty obligations of the United States and with the Constitution of the United States.

This was not saying the President's determination was to be or could be acted upon, but only that the United States was "prepared" to act. The President was even warned by the proviso "That such employment shall be consonant with the treaty obligations *** and Constitution of the United States." Although it was not an authorization and not intended to be-actually incomplete and inconclusive— President Eisenhower later did send troops into Lebanon.

The Middle East resolution and that relating to Formosa cannot possibly have the same meaning or effect.

STATIONING OF U.S. TROOPS IN VIETNAM

Congress has authorized the President to draw upon the armed forces for personnel to assist other countries in noncombatant capacities only, including advising and training. For this purpose a contingent of U.S. troops was stationed in South Vietnam.

After a time, without further congressional authorization and only with the sanction of successive Presidents, advisers were assigned to the battleline armed with guns and hand grenades and thus, by becoming participants in battle with South Vietnamese troops, ceased to have the noncombatant status required by law. Likewise, U.S. planes manned by U.S. pilots were engaged in transporting South Vietnamese troops to battle areas.

In pursuing these activities, more than 100 American soldiers were killed and many more wounded before full-scale military operations began with the North Vietnamese torpedo boat attack against a U.S. destroyer patrolling the Gulf of Tonkin. The destroyer, successfully maneuvering so as to avoid the torpedo, responded by sinking the attacking boats. A few days later, war planes of the United States raided North Vietnam, causing loss of life and destruction of property.

President Johnson called the raid retaliation for the torpedo attack on the destroyer and asked Congress for approval of his action to show the world that he had the support of Congress.

The claim that the raid was in retaliation was untenable because suitable and effective retaliation had already taken place by the destroyer sinking the torpedo boats. The attack on North Vietnam was an unauthorized act of war.