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Since the 1870 repeal of the 1867 provision, the Congress has not attempted to prescribe the chain of command. Congressional leaders have recognized in various contexts that Article II of the Constitution is an independent source of Presidential authority, which is particularly at its height when he acts in the capacity of military commander . 25/

On many occasions, as earlier noted, the Congress has established components of military organization. In 1958, in 10 U.S.c. S 124, it directed the President to set up the combatant organizations called "commands" which are designed to carry out military operations. But the Congress has never tried to tell the commander in Chief through whom he must transmit orders. In fact, Commanders in chief on occasion, wisely or unwisely, have elected to skip the long chain of command to the field and give directions directly to officers on the scene, as was done at times by Presidents John F. Kennedy, Lyndon B. Johnson and Jimny Carter.

The closest the Congress has come in recent years to prescribing command elements is to state that a combatant command "is under the full operational command of the commander of the command to which it is assigned," 10 U.S.C. S 124(b), and, negatively, to specify that the Chairman of the Joint Chiefs of Staff "may not exercise military command over the Joint Chiefs of Staff or any of the armed forces," 10 U.S.c. S 142(C). The latter is a very small negative restriction, if it is constitutional; as a practical matter, the President presumably could appoint the same officer if he resigned as Chairman to a position with whatever broad command authority the President directed. The former provision, stating that the unified and specified commanders shall command their commands, also is of little practical importance, because the commanders serve in those assignments at the pleasure of the Commander in Chief, who can replace them at any time and fill the positions with whomever he selects.26/ These provisions do not purport to restrict in significant manner the President's power; to the extent they did so, they would violate Article II.

without any comment on its constitutionality in Blake v.

United States, 103 0.s. 227 (1881). 25/ Cf. John G. Tower, Congress Versus the President: The

Formulation and Implementation of American Foreign Policy, 60 Foreign Affairs 229, 231 (1981) (referring to the

President's powers related to foreign affairs). 26/ Positions at the three-star and four-star level of the

military services, in fact, carry rank of that level only so long as the incumbent is assigned to that position.

- 10

62-630 0 - 87 - 25

CONCLUSION

The text and history of the Constitution, and nearly two hundred years of practice, leave little doubt that although the Congress has broad authority to prescribe military organization, and to establish subordinate military offices, under Article II it is up to the Commander in Chief alone to decide who shall transmit orders and what chain of operational command is appropriate. 27/ Legislation prescribing that the holder of a particular office be in the chain of operational command from the President would be without respectable precedent and would exceed the Congress' legislative power.

John G. Kester

27/

As was noted in 1867, "There is the authority conferred upon
the President of the United States to command the Army and
Navy. It is not mere rank." Cong. Globe, 39th Cong., 28
Sess. 1852 (1867)(Sen. McDougall of California).

11

Mr. MAVROULES. I have one question here, and it is quite general.

Should the chairman control the Joint Staff, and do you think the procedures for allowing the other members of the JCS to give advice are sufficient in the House bill?

As you well know, the Senate bill will specify the military chain of command, and we do not. Can you comment on that, please?

Mr. KESTER. I think very definitely, and without hesitation, that the Chairman should control the Joint Staff. They should work for the Chairman and not the corporate body. I think that is important. I note that there has been some backpedaling here and there, and I am sorry to see that. That is one of the fundamental reforms that has had wide acceptance in recent years, and I definitely believe he should do that.

Mr. MAVROULES. I have one other question. I think perhaps you are correct when you stated we should not offer legislation. Of course, it is always a danger. What specific office created by Congress do you find objectionable?

Mr. KESTER. I think, for example, in my view there are too many Assistant Secretaries of Defense right now. We got it down to seven. I think it is up to-it depends whether you count people at the Secretary level- I think it is up to 14. I ask you not to hold me to that.

Mr. MAVROULES. Mr. Skelton said 10. Mr. Lally said seven. It has gone up.

Mr. KESTER. There is always a little wiggle room in these things. It has gotten to be more than it used to be, no question. Substantially more.

I don't think there needs to be that many. We set about abolishing some of these offices, and there was legislation passed that came out of this committee originally, back in 1978, which did away with the second Deputy Secretary of Defense, set up an Under Secretary of Defense for Policy, and at the same time did away with some Assistant Secretary provisions.

Mr. Weinberger came back and asked for more Assistant Secretaries, and then I believe that as it finally emerged from the Congress, he got more than he asked for.

I don't believe in specifying the duties of the Assistant Secretaries. I think what is important and essential changes from time to time, and the problems of a particular administration may be different from those of another.

I have for many years believed we should not have an Assistant Secretary for Health Affairs; we should not have an Assistant Secretary for Reserve Affairs. I know many people disagree on that point. Those are positions that should be working through the Assistant Secretary for Manpower.

And we had one Assistant Secretary for Manpower and Logistics. I noticed Mr. Weinberger has now carved that up again. The job Secretary Larry Korb used to have has now been carved up, disemboweled, and spread all over the third floor of the Pentagon. I don't think that that is a good idea.

I think you need to have-if you don't have some of these things integrated at the Assistant Secretary or Under Secretary level, then all of the unresolved questions find themselves on the desk of the Secretary of Defense. And however able a Secretary of Defense is, he can only do so much in the 26 or 27 hours a day that he works.

Mr. MAVROULES. Thank you.
Mr. Spratt.

Mr. SPRATT. Thank you very much for the excellent testimony; and not only that, for your thoughtful and diligent preparation of it. I, particularly, will study it.

I have to leave, and I don't have any further questions. I believe you were the writer of the Stoessel Commission report.

Mr. KESTER. Yes, sir.

Mr. SPRATT. You did an excellent job. It is one of the best white papers, if you can call it that, I have read in a long time.

Thank you for your testimony.
Mr. KESTER. Thank you, sir.
Mr. MAVROULES. Mr. Skelton.

Mr. SKELTON. Very quickly. We do appreciate your coming over today. The Antonelli report that came forth on the defense agencies, was that not done at your behest? Do you remember that?

Mr. KESTER. I think that came out slightly after my time. I think it was started when I was there.

Mr. SKELTON. It is quite good, and, actually, I am using that as a handbook to look at the agencies, quite honestly. And I, in all probability, will have a bill go in shortly that is tougher than the one that we have already introduced.

Thank you.

Mr. KESTER. I think the agencies definitely need to be looked at. As I say, they started out in a sensible fashion, probably, with Secretary McNamara saying there is duplication of effort among the services, let's put some of these activities together, and that probably makes sense.

But what happens when you set up too many of these things is that no one really has jurisdiction over them. I think the essential thing on these, that I would look for, is that each of those agencies should have some kind of a big daddy there at the secretariat level to check up on what they are doing.

Mr. MAVROULES. Mr. Kester, we have a number of questions to be put before you, but during your testimony you answered them all. So, therefore, I don't have any other questions at this point. I will ask staff if they do.

Mr. BARRETT. I have no questions.
Mr. Lally. No questions.

Mr. MAVROULES. I want to thank you very much for taking the time. It is very important testimony, very helpful.

Mr. KESTER. Thank you for having me. I appreciate it. [The bills, H.R. 4235, 4236, and 4237 are on pages 893, 905 and 912.)

(Whereupon, at 11:30 a.m., the subcommittee adjourned subject to the call of the Chair.]

HOUSE OF REPRESENTATIVES,
COMMITTEE ON ARMED SERVICES,

INVESTIGATIONS SUBCOMMITTEE,

Washington, DC, Tuesday, March 11, 1986. The subcommittee met, pursuant to notice, at 9:02 a.m., in room 2118, Rayburn House Office Building, Hon. Bill Nichols (chairman of the subcommittee) presiding.

STATEMENT OF HON. BILL NICHOLS, A REPRESENTATIVE FROM

ALABAMA, CHAIRMAN, INVESTIGATIONS SUBCOMMITTEE Mr. NICHOLS. The subcommittee will come to order. This morning, we continue our investigations into the restructuring of the Joint Chiefs of Staff. And we are pleased to have with us a member of the Packard Commission, former Under Secretary of the Navy, James Woolsey. Mr. Woolsey is an attorney who has combined the practice of law with a distinguished record of public service.

After completing his studies as a Rhodes scholar, Mr. Woolsey graduated from Yale Law School. He served, in between occasional stints as a practicing attorney, in the Office of the Secretary of Defense, as an advisor on the National Security Council staff, and as general counsel to the Senate Armed Services Committee. From 1977 to 1979 he served as Under Secretary of the Navy. Although he has now returned full time to the practice of law as a partner in Shea & Gardner, he has found time to serve as a key member of two most important Presidential commissions in recent memory, the Scowcroft Commission and the Packard Commission.

So Mr. Woolsey, we regret that you could not be with the Packard Commission when they testified last week, and we are honored to have you before this committee this morning. STATEMENT OF JAMES WOOLSEY, MEMBER, PRESIDENT’S BLUE

RIBBON COMMISSION ON DEFENSE MANAGEMENT; FORMER UNDER SECRETARY OF THE NAVY

Mr. WOOLSEY. Thank you, Mr. Chairman. I am honored to be invited back. I might just say a few introductory words, if I might, about the thrust of the Commission's recommendations as I see them, particularly pertaining to the four bills, H.R. 4234 through 37, that are before your committee now.

Let me say, first of all, that particularly during the 3 years that I was the general counsel of the Senate Armed Services Committee in the early 1970's, and since, I have been especially impressed by the useful role of this committee, the House Armed Services Committee, and its subcommittees in the constitutional process of making rules and regulations and conducting oversight of the defense establishment.

I think that many of the most useful hearings that have been held over the years—thinking back to some of the Investigations

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