Before there is a commitment, constitutional processes must operate. Our Constitution provides that Congress shall decide on whether or not the United States shall engage in war. Congress has not authorized war measures and therefore there is no commitment for the President to act upon.

At the same time President Johnson was declaiming that the United States must keep its so-called commitment to defend South Vietnam, he demonstrated that the word of the United States could not be relied upon by sending troops to the Dominican Republic in violation of the Organization of American States Charter, wherein it was agreed:

"The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever."

The President is restricted in dealing with other nations. The Constitution provides:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors,

Except for ability to "receive ambassadors and other public ministers," the President is hedged in by restraints. Nowhere in the Constitution is to be found authority for the President by himself alone to commit the nation to any international undertaking. That may be done only by treaty duly approved by the Senate, or by act of Congress where a treaty is not involved.

Recently President Johnson stated the United States is "firmly committed" to support the political independence and territorial integrity of all Middle East nations. His only basis for the statement appeared to be that our last four Presidents have so declared. If it depends upon what these Presidents have said, there is no commitment because Presidents are not empowered by the Constitution to commit the United States to any such undertaking.

When the Constitution is definite and precise regarding a procedure to be followed, it thereby is saying no other method is permissible. When the Constitution says "No," the Supreme Court has no authority to say "Yes."

Yet the Supreme Court has presumed to hold that a different method is permissible, i.e., the President alone may, without restriction, make treaties and thereby commit the United States. The attitude of the Court has been stated in the determination of several cases, one of which is United States v. Belmont regarding a presidential transaction (301 U.S. 324, 1937), from which the following excerpts are taken:

"Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government." There is nothing in the Constitution from which it may be inferred that the President is "the sole organ" of the United States in relation to treaties. Further:

"We held (in Altman & Co. v. United States, 224 U.S. 583) that although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a 'treaty' within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this Court."

The words "under the authority of the President" in relation to such a compact are unknown to the Constitution.

The Circuit Court of Appeals had previously held in the Belmont case "that a judgment for the United States could not be had, because . it would be contrary to the controlling public policy of the State of New York." On this feature the Supreme Court went on to say:

"Plainly, the external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning. Mr. Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws as far as they contravene its operation, the treaty would be ineffective."

Madison, in the Virginia Convention, was speaking about the Constitution as then proposed and could have been referring, therefore, only to a treaty made in accordance with the constitutional provision, and in that respect his statement was sound. That was not the situation with which the Court was dealing, however.

Continuing:

"And when judicial authority is invoked in aid of such consummation, state constitutions, state laws, and state policies are irrelevant to the inquiry and decision. It is inconceivable that any of them can be interposed as an obstacle to the effective operation of a federal constitutional power. Cf. Missouri v. Holland, 252 U.S. 416; Askura v. Seattle, 265 U.S. 332.”

The argument would be appropriate as to a treaty approved by the Senate, but the so-called "treaty" then under consideration was not such a one; it was made by the President alone, contrary to the Constitution. Clearly the Court accorded the "treaty" in question the same degree of validity as that possessed by a regular treaty, even to the extent of overriding state constitutions and state laws. To complete the incongruity, the Court looked for support to the two cases cited, which involved treaties constitutionally made.

After World War II, Status-of-Forces treaties were made with Western Euro pean nations, whereby United States soldiers charged with crime against nationals of the nation concerned would be tried in that nation's courts, which treaties were submitted and approved by the Senate. Afterward the President alone made a similar arrangement with Japan, which on coming before the Supreme Court was held to be a valid treaty.

Thus it is seen that the Supreme Court gives a presidential "commitment," if it may be called such, exactly the same standing as a treaty made in accordance with the Constitution. It must follow, according to the Supreme Court, that a President may choose which method to pursue. He may perfunctorily refer a proposed treaty to the Senate, or if there should be doubt about Senate approval, or for any other reason, he may complete the transaction by himself. The Supreme Court would make a nullity of the treaty-making provision of the Constitution.

The Court cannot be said to have been "interpreting" the treaty provision, because that provision is a direction stated in such precise terms that interpretation is neither called for nor permitted. The Court has in fact been acting in defiance and violation of the Constitution.

The Supreme Court is not infallible. It concedes this when on occasion it overrules its own previous decisions. Nor is the Constitution "what the judges say it is;" it is what it itself says it is. A Supreme Court decision is not the "supreme law of the land." The Constitution states it thus:

"This Constitution, and the laws of the United States which shall be made in pursurance thereof, and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land;

Treaties, to be valid, must be made "under the authority of the United States," in conformity with the Constitution-not "under the authority of the President," as stated by the Supreme Court.

The Supreme Court is subordinate-not superior-to the Constitution. Its members recognize this when they swear fealty upon taking office; but it is apparent that in relation to treaties, at least, they have presumed to place themselves above the Constitution when they arbitrarily accord to the President alone the power to make treaties. The Court is without authority to amend, remake or ignore any part of the Constitution.

CONCLUSION

All is not well with our Republic. The Executors of the Constitution have wandered far afield in conducting the affairs of government in at least two very vital aspects and must be headed off if constitutional government is to prevail. A President ambitious for power will not limit himself. The Supreme Court offers no hope. The task, then, devolves upon Congress, even though its tendencies toward weakness do not inspire great confidence.

It would be incumbent upon Congress to divest itself of the idea that a President is allwise and not subject to mistake; its members must be brought to realize that their allegiance is to the Constitution representing the people-not to the President. They must face up to the responsibility conferred upon them by the Constitution.

The impeachment provision is available. Either one or both Houses could correct the situation by refusing to implement in the slighest degree unauthorized military action and spurious treaties. If this or other measures having the same effect are not taken, the Constitution will be a shambles and we shall indeed have an elective monarchy with the President wielding unlimited power.

Madison recorded the view of Hugh Williamson, of North Carolina, as expressed in the Constitutional Convention, thus:

"Another objection against a single magistrate is that he will be an elective king and will feel the spirit of one . . . It was pretty certain, he thought, that we should at some time or other have a king, but he wished no precaution to be omitted that might postpone the event as long as possible."

Do we care enough to "postpone the event as long as possible" in our time? If we do, we should bestir ourselves without delay because the trend has already gone too far. Adoption of Senate Resolution 151 is a step in the right direction. Other steps may be necessary.

The CHAIRMAN. Mr. Montross, it is an extremely interesting and a well-prepared statement. I think you probably can judge from previous discussion that many members of this committee are very sympathetic to your point of view. Before he leaves for another engagement I would like to ask Senator Sparkman, do you wish to say anything?

PRAISE FOR STATEMENTS OF WITNESSES

Senator SPARK MAN. Mr. Chairman, I just want to say this: I do have an engagement at 12:15 and I must leave for it. I have read all three of the statements that have been submitted to us this morning. I followed Judge Lévitt while he was testifying, read his statement. I read Mr. Montross' statement earlier, and I have read Mrs. Broy's statement. I want to say that we have three very fine statements this morning, very persuasive, and very informative. I simply want to commend each and every one of them for making the presentation that has been made. I don't mean by that that I agree with everything that has been said, but I think in general principle they have been very good.

The CHAIRMAN. Senator Morse?

APPLICABILITY OF IMPEACHMENT PROVISION

Senator MORSE. I want to say, Mr. Montross, of course, I have already indicated this morning that I agree with much that you say. I have one question and that is one that deals with the material in your testimony. I don't know exactly how broad you wish to apply the language where you say "the impeachment provision is available." It is my view that there is no basis under the impeachment section of the Constitution for any impeachment of the President in respect to the Southeast Asia operation. I do not know whether you mean to apply that provision to the President in respect to what he has been doing under the Tonkin Bay resolution vis-a-vis Southeast Asia. But I do not think there is any basis at all under the Constitution for impeachment. Now, it may be that what you mean is that you are listing the checks that the Congress has, such as the check of the purse string which you referred to, in effect, in the statement, and that if any President, X, Y or Z, committed acts of treason, the impeachment provision would be available. But I don't know whether you mean to assume that it is applicable rather than available, that it is applicable under the present set of facts, and I think you ought to have an opportunity to clarify that.

Mr. MONTROSs. I think-of course, I have also made other suggestions about what might be done, but I think President Johnson is vulnerable. I think, as I see it, there has been-Congress has not au

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:

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.