UNITED STATES OF AMERICA •

d PROCEEDINGS AND DEBATES OF THE 93 CONGRESS FIRST SESSION

VOLUME 119-PART 28

NOVEMBER 6, 1973 TO NOVEMBER 15, 1973 (PAGES 35989 TO 37438)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1973 November', 7; ·1973 ;CONGRESSION~L·RECORD-' SENATE The PRESIDING OFFICER. Without ordinated and more efficient financing concerning the war powers of Congress and :>bjection, it is so ordered. of Federal and federally assisted borrow_ the President", returned by the President of ings from the pUblic, and for other pur­ the United states with his objections, to the poses; House of Representatives. In which it origi­ ORDER ON CONSIDERATION OF nated, It was H.R. 9295. An act to provide for the Resolved., that the said joint resolution VETO MESSAGE ON WAR POWERS conveyance of certain lands of the Unit­ RESOLUTION pass, two-thirds of the House of Representa­ ed States to the State of Louisiana for tlves agreeing to pass the same. Mr. MANSFIELD. Mr. President, I ask the use of Louisiana State University; \V. PAT JENNINGS, Clerk. \U1animous consent that the veto mes­ and The PRESIDING OFFICER laid before sage, when received, be considered as H.R. 10840. An act to amend the Act the Senate a message from the President having been read and that it be printed of August 4, 1950 (64 Stat. 411) to pro­ of the United States to the House of Rep­ in full in the RECORD and spread in full vide salary increases for members of the resentatives, which reads as follows: upon the Journal and that the Senate police force of the Library of Congress. proceed to its immediate consideration at The PRESIDING OFFICER. Without To the House at Representatives: the hour of 3 o'clock. objection, it is so ordered. I hereby return without my approval' The PRESIDING OFFICER. Is there House Joint Resolution 542-the War objection to the request of the Senator Powers Resolution. While I am in accord from Montana? RECESS UNTIL 2:55 P.M. with the desire of the Congress to assert Mr. JAVITS. Mr. President, may we Mr. ROBERT C. BYRD. Mr. President, its proper role in the conduct of our for­ know what the unanimous-consent re­ I move that the Senate stand in recess eign affairs, the restrictions which this quest is? until 2:55 p.m. today. resolution would impose upon the au­ Mr. MANSFIELD. Just to have the The motion was agreed to; and at 2: 18 thority of the President are both uncon­ veto message printed in the Journal nad p.m. the Senate took a recess until 2:55 stitutional and dangerous to the best RECORD. We already have agreed to start p.m.; whereupon, the Senate reassem­ interests of our Nation. debate at 3 o'clock and that the time bled when called to order by the Presid­ The proper roles of the Congress and be equally divided between the two ing Officer (Mr. BARTLETT). the Executive in the conduct of foreign leaders or whomever they may desginate, affairs have been debated since the with the vote to occur at 4 o'clock. founding of our country. Only recently. Mr. JAVITS. This is on the war powers MESSAGE FROM THE HOUSE however, has there been a serious chal­ resolution? lenge to the wisdom of the Founding Mr. MANSFIELD. Yes, sir. A message from the House of Repre­ Fathers in choosing not to draw a pre­ Mr. JAVLTS. I have no objection. sentatives by Mr. Berry, one of its read­ cise and detailed line of demarcation be­ The PRESIDING OFFICER. Without ing clerks, announced that, on recon­ tween the foreign policy powers of the objection, it is so ordered. sideration, the joint resolution (H.J. Res. two branches. Mr. MANSFIELD. Mr. President, it will 542) concerning the war powers of Con­ The Founding Fathers understood the be my intention to yield the time allo­ gress and the President, returned by the impossibility of foreseeing every contin­ cated to the majority leader to the dis­ President of the United States with his gency that might arise in this complex tinguished Senator from Mississippi (Mr. objections to the House of Representa­ area. They acknowledged the need for STENNIS). tives, in which it originated, was passed, fiexibility in responding to changing cir­ Mr. President, I suggest the absence of two-thirds of the House of Representa­ cumstances. They recognized that foreign a quorum. tives agreeing to pass same. policy decisions must be made through The PRESIDING OFFICER. The clerk close cooperation between the two will call the roll. ORDER FOR ADJOURNMENT branches and not through rigidly codi­ The second assistant legislative clerk UNTIL TOMORROW fied procedures. proceeded to call the roll. These principles remain as valid today Mr. JAVITS. Mr. President, I ask Mr. ROBERT C. BYRD. Mr. President, as they were when our Constitution was unanimous consent that the order for I ask unanimous consent that when the written. Yet House Joint Resolution 542 the quorum call be rescinded. Senate completes its business today, it would violate those principles by defining The PRESIDING OFFICER. Without stand in adjournment until 12 o'clock the President's powers in ways which objection, it is so ordered. noon tomorrow. would strictly limit his constitutional Mr. JAVITS. Mr. President, I ask The PRESIDING OFFICER. Without authority. unanimous consent that Peter Lakeland objection, it is so ordered. CLEARLY UNCONSTITUTIONAL and Charles Warren of my office may House Joint Resolution 542 would at­ have the privilege of the floor during the QUORUM CALL tempt to take away, by a mere legislative debate on the war powers measure. act, authorities which the President has The PRESIDING OFFICER. Without Mr. ROBERT C. BYRD. Mr. Presi­ properly exercised under the Constitu­ objection, it is so ordered. dent, I suggest the absence of a quorum. tion for almost 200 years. One of its pro­ The PRESIDING OFFICER. The visions would automatically cut off cer­ clerk will call the roll. tain authorities after sixty days unless QUORUM CALL The legislative clerk proceeded to call the Congress extended them. Another Mr. JAVITS. Mr. President, I suggest the roll. would allow the Congress to eliminate the absence of a quorum. Mr. ROBERT C. BYRD. Mr. President, certain authorities merely by the pas­ The PRESIDING OFFICER. The clerk I ask unanimous consent that the order sage of a concurrent resolution-an will call the roll. for the quorum call be rescinded. action which does not normally have the The second assistant legislative clerk The PRESIDING OFFICER (Mr. force of law, since it denies the Presi­ proceeded to call the roll. BARTLETT). Without objection, it is so dent his constitutional role in approving Mr. ROBERT C. BYRD. Mr. President, ordered. legislation. I ask unanimous consent that the order I believe that both these provisions for the quorum call be rescinded. WAR POWERS OF CONGRESS AND are unconstitutional. The only way in The PRESIDING OFFICER. Without THE PRESIDENT-VETO which the constitutional powers of a objection, it is so ordered. branch of the Government can be altered The PRESIDING OFFICER (Mr. is by amending the Constitution-and BARTLETT), pursuant to the previous any attempt to make such alterations ORDER FOR BILLS TO BE HELD order, laid before the Senate a message by legislation alone is clearly without AT THE DESK from the House of Representatives, force. which was read, as follows: Mr. ROBERT C. BYRD. Mr. President UNDERMINING OUR FOREIGN POLICY I ask unanimous consent that the fol~ HOUSE OF REPRESENTATIVES, While I firmly believe that a veto of lowing bills be held at the desk: NOvember 7, 1973. The House of Representatives having pro­ House Joint Resolution 542 is warranted B.R. 5874. An act to establish a Fed­ ceeded to reconsider the joint resolution solely on constitutional grounds. I am eral Financing Bank, to provide for co- (B.J. Res. 642) entitled "Joint resolution also deeply disturbed by the practical 361'76 CONGRESSIONAL RECORD -'-' SENATE Novembe1' 7, 1973 consequences of this resolution. For it matlcally under this resolution 60 days duct of foreign affairs and to preserving would seriously undermine this Nation's after they were invoked. No overt Con­ the constitutional prerogatives of both ability to act decisively and convincingly gressional action would be required to branches of our Government. I know that in times of international crisis. As a re­ cut off these powers-they would disap­ the CongreSS shares that goal. A com­ sult, the confidence of our allies in our pear automatically unless the Congress mission on the constitutional roles of the ability to assist them could be diminished extended them. In effect, the Congress is Congress and the President would pro­ and the respect of our adversaries for our here attempting to increase its policy­ vide a useful opportunity for both deterrent posture could decline. A per­ making role through a provision which branches to work together toward that manent and substantial element of un­ requires it to take absolutely no action common objective. predictability would be injected into the at all. RICHARD NIXON. world's assessment of American behav­ L'1 my view, the proper way for the THE WHITE HOUSE, October 24, 1973. ior, further increasing the likelihood of Congress to make known its will on such The PRESIDING OFFICER. Under the miscalculation and war. foreign policy questions is through a previous order, the Senate will proceed I! this resolution had been in opera­ positive action, with full debate on the to reconsider the joint resolution. The tion, America's effective response to a merits of the issue and with each mem­ question is, Shall the joint resolution variety of challenges in recent years ber taking the responsibility of casting pass, the objections of the President of would -have been vastly complicated or a yes or no vote after considering those the United States to the contrary not­ even made impossible. We may well have merits. The authorization and appropri­ withstanding? been unable to respond in the way we did ations process represents one of the ways Mr. STENNIS. Mr. President, will the during the Berlin crisis of 1961, the in which such influence can be exercised. Senator from Texas yield to me? Cuban missile clisis of 1962, the Congo I do not, however, believe that the Con­ Mr. TOWER. I do not have the floor. rescue operation in 1964, and the Jor­ gress can responsibly contribute its con­ The PRESIDING OFFICER. The Sen­ danian crisis of 1970-to mention just a sidered, collective judgment on such ator from Mississippi is in clrarge of the few examples. In addition, our recent ac­ grave questions without full debate and time on the majority leader's side, and tions to bling about a peaceful settlement without a yes or no vote. Yet this is pre­ the minority leader or his designee on of the hostilities in the Middle East would cisely what the joint resolution would the minority side. have been seriously impaired if this reso­ allow. It would give every future Congress Mr. TOWER. Mr. President, I ask lution had been in force. the ability to handcuff every future unanimous consent that I may suggest While all the specific consequences of President merely by doing nothing and the absence of a quorum without the time House Joint Resolution 542 cannot yet be sitting still. In my view, one cannot be­ consumed being charged to either side. predicted, it is clear that it would under­ come a responsible partner unless one Is Mr. ROBERT C. BYRD. Mr. President. cut the ability of the United states to act prepared to take responsible action. would the Senator suggest the absence as an effective influence for peace. For STRENGTHENING COOPERATION BETWEEN THE of a quorum imd let the time be charged example, the provision automatically cut­ CONCRESS AND THE EXECUTIVE BRANCHES equally to both sides because we have ting off certain authorities after 60 days The responsible and effective exercise a vote at 4 o'clock in any event. unless they are extended by the Congress of the war powers requires the fullest Mr. TOWER. That is under thp could work to prolong or intensify a cooperation between the Congress and unanimous-consent agreement? crisis. Until the Congress suspended the the Executive and the prUdent fulfill­ Mr. ROBERT C. BYRD. Yes, sir. deadline, there would be at least a chance ment by each branch of its constitu­ Mr. TOWER. And the time to vote i) of United States withdrawal and an ad­ tional responsibilities. House Joint Reso­ fixed at 4 o'clock? versary would be tempted therefore to lution 542 includes certain constructive Mr. ROBERT C. BYRD. Yes. postpone serious negotiations until the 60 measures which would foster this process Mr. TOWER. Mr. President, I accede days were uP. Only after the Congress by enhancing the flow of information to the request of the Senator from West acted would there be a strong incentive from the executive branch to the Con­ Virginia (Mr. ROBERT C. BYRD) and ask for an adversary to negotiate. In addi­ gress. Section 3, for example, calls for unanimous consent that I may suggest tion the very existence of a deadline consultations with the Congress before the absence of a quorum with the time could lead to an escalation of hostilities and during the involvement of the United being charged equally to both sides. in order to achieve certain objectives be­ States forces in hostilities abroad. This The PRESIDING OFFICER. Without fore the 60 days expired. provision is consistent with the desire of objection, it Is so ordered. The measure would jeopardize our role this Administration for regularized con­ Mr. TOWER. Mr. President, I suggest as a force for peace in other ways as well. sultations with the Congress in an even the absence of a quorum. It would, for example, strike from the wider range of circumstances. The PRESIDING OFFICER. The clerk President's hand a wide range of im­ I believe that full and cooperative will call the roll. portant peace-keeping tools by eliminat­ participation in foreign policy matters by The legislative clerk proceeded to call ing his ability to exercise quiet diplomacy both the executive and the legislative the roll. backed by subtle shifts in our military branches couId be enhanced by a careful Mr. ROBERT C. BYRD. Mr. President, deployments. It would also cast into and dispassionate study of their consti­ I ask unanimous consent that the order doubt authorities which Presidents have tutional roles. Helpful proposals for such for the quorum call be rescinded. used to lLl1dertake certain humanitarian a study have already been made in the The PRESIDING OFFICER. Without relief missions in conflict areas, to protect Congress. I would welcome the establish­ objection, it is so ordered. fishing boats from seizure, to deal with ment of a non-partisan commission on Mr. ROBERT C. BYRD. Mr. President, ship or aircraft hijackings, and to re­ the constitutional roles of the Congress I ask unanimous consent that the vote spond to threats of attack. Not the least and the President in the conduct of for­ on the override of the President's veto of the adverse consequences of this reso­ eign affairs. This commission could make occur at 5:15 p.m. today, with the time lution would be the prohibition contained a thorough review of the principal con­ to be equally divided between Mr. STEN­ in section 8 against fUlfilling our obliga­ stitutional issues in Executive-Congres­ NIS and Mr. TOWER. tions wlder the NATO treaty as ratified sional relations, inclUding the war pow­ The PRESIDING OFFICER. Is there by the Senate. Finally, since the bill is ers, the international agreement powers, objection? The Chair hears none, and it somewhat vague as to when the 6D-day and the question of Executive privilege, is so ordered. rule would apply, it could lead to extreme and then submit its recommendations to Mr. TOWER. Mr. President, I yield confusion and dangerous disagreements the President and the Congress. The such time as he may require to the Sen­ conceming the prerogatives of the two members of such a commission could be ator from Missouri. branches, seriously damaging our ability drawn from both parties-and could rep­ Mr. EAGLETON. I thank the Senator to respond to intemational crises. resent many perspectives including those from Texas for yielding. FAILURE TO REQUIRE POSITIVE CONGRESSIONAL of the Congress, the executive branch, Mr. President, I rise to·speak in sup­ ACTION the legal profession, and the academic port of the President's veto of the so­ I am particularlY disturbed by the fact community. called war powers bill, and therefore in that certain of the President's constitu­ This Administration is dedicated to opposition to the attempt to override it. tional powers as Commander in Chief of strengthening cooperation between the The term "war powers" is a generic the Armed Forces would t!!l111inate auto- Congress and the President in the con- term dealing with the authority of the November7,19'l3 CONGRESSIONAL RECORD - SENATE 3'6177 President and Congress to commit bill disappeared in conference. What bill the troops could be sent t.here with American Armed Forces into hostilities came out is a total, complete distortion no declaration of war by Congress. or into a theater of the world where of the war powers concept, because what This bill attempts by legislation to there is the imminent threat of hostili­ came out has nothing to do with emer­ leave out of the Constitution that pro­ ties. The proposed legislation has had a gency authority of the President. It has vision that says Congress shall declare long and tortuous and, at times, in­ nothing to do with the central point of war. One does not have to be a Harvard triguing road. It was 3 years ago or more contention over war powers. lawyer, one does not have to be a Phila­ when the first war powers bills were in­ There are some precatory words about delphia lawyer, or a law school graduate; troduced, initially by Senator JAVITS, emergency authority in the conference all one needz is to have basic common­ then one by me; and then one by the version, but it is just that, meaningless. sense to know that by legislation the distinguished Senator from Mississippi It is pious, nonoperative, nonbinding, Constitution of the United States can­ (Mr. STENNIS). nonenforceable language. What the con­ not be amended, but that is what this bill The Senate Committee on Foreign Re­ ference bill now says is this, and the attempts to do. lations held extensive hearings, and a country had better know it. The country There is no doubt about what I am say­ bill was fashioned that defined the pa­ does not know it yet, because the media ing. Itwill be refuted by the Senator from rameters of responsibility of the Presi­ coverage of the bill still says that this New York or some other Senators. The dent and Congress. limits the President's war powers. It does Senator from New York and the Senator In essence, the Senate bill said the not. The bill gives the President of the from Maine (Mr. MUSKIE) sent around following: The decision to go to war, United States unilateral authority to a "Dear Colleague" letter. On page 3 they under our Constitution, is a decision for commit American troops anywhere in the state: Congress to make. That is what Hamil­ world, under any conditons he decides, Nothing in the war powers resolution could ton and Madison, who worked on that for 60 to 90 days. He gets a free 60 days have hampered the Prelsdent in his handling section of the Constitution, intended. and a self-executing option for an ad­ of the recent Middle East crisis. The bill Fresh from the control of King George, ditional 30 days, making 90. would have allowed the President to put our Mr. President, the express train already armed forces on alert, to order movements they no longer wanted one man, however of our fleets and to resupply the Israeils with decent, however benign, to make the has left to make this bill law. We had to military equipment. The bill would have re­ troublesome and difficult decision to beg another hour to debate the most im­ qUired the President only to report to the commit the United States to war. portant question a free society can face­ Congress within 48 hours with respect to the They wanted this to be a collective war. And we are going to debate it for deployment of U.S. Armed Forces in foreign judgment, made by the Congress of the 2 hours. If we are going to debate a pay territory, airspace and waters. United States, and therefore they re­ raise for Senators we debate it for a Hear that again: posed in Congress the authority to de­ week, but just 2 hours on war. The bill would have required the President clare war; What this bill says is that the Presi­ only to report to the Congress within 48 The .. Senate bill is premised on that dent can send us to war wherever and hours In writing with respect to the deploy­ sound constitutional precept. And no whenever he wants to. Troops could be ment .of· U.S. Armed Forces in foreign ter­ valid bill can be premised on any other deployed tomorrow to the Mideast un­ fltory, airspace, and waters. precept and be constitutional. The Sen­ der this bill without our prior authority. That is what this bill is all about. It is ate bill then went on, as it properly had All the President has to do is to make not mysterious; it is very clear. Despite to because of court decisions, and histor­ a telephone call to Senator MANSFIELD what has been written and said about it, ical iJrecedent to delineate three emer­ and Senator SCOTT and say, "The boys it does not limit the power of the Presi­ gency situations that would permit the are on the way. I think you should know:' .dent of the United States to wage war by President to act on his own without prior Consultation. There they are; 60 to 90 himself. authority. . days. Once those troops are committed Quite to the contrary. It attempts to The general premise is that Congress the history of this country is replete with emblazon into law, that unilateral deci­ is to declare war, Congress is to decide. examples; that once committed they re­ sionmaking process. But there are three exceptions to that main. I am dumbfounded, because for 5 years premise recognized in law, and those ex­ How sharp can memories be? My God, I sat here during the whole evolution of ceptions were ratified in the Senate bill. we just got out of a nightmare that lasted McGovern-Hatfield resolutions, Goodell First, an attack on the continental 9 years in Southeast Asia in what at resolutions, Church-Case resolutions, limits of the United States. If we are the outset was going to be a sort of mop­ and Cooper-Church resolutions; through attacked; the President can respond­ up action. At the time of the Gulf of hundreds of hours of debate, in which ob7iously so. Tonkin incident most thought that in 60 Senator after Senator decried the fact Second, an attack on U.S. forces to 90 days we would have that one re­ that a President had got us involved in a legally deployed abroad-for example, solved. Once those troops were committed nightmare, and that we should not get NATO. In the case of an attack on our in August 1964. at the time of the Gulf of involved in such a nightmare again; and forces in Germany, the President could Tonkin incident, they remained for 9 that no one man could ever get us in­ respond to maintain their self-defense. years. They left 9 years later, 50,000 dead volved in a nightmare again; and was Third, the most obscure one, but one later, over 350,000 wounded later, and not it awful ~ We debated that question that ~s blessed by previous court deci­ with the expenditure of so many billions during the 5 years that I have been sions-the right to rescue American citi­ of dollars I cannot add it up; lots of here-and the war lasted a total of nine. zens. The President would have the aU­ blood, lots of sweat, and lots of tears. Yet With that memory so fresh, how can it thority to rescue American nationals we attempt to engrain in this bill the be that we would now turn around and abroad in time of danger, but only un­ unilateral presidential decisionmaking sanction the very thing that we casti­ der carefully circumscribed conditions. authority to commit more troops any­ gated for all those years of debate since Those were the three limited exceptions where in the world. The Mideast is the the original Gulf of Tonkin resolution in in which the President could act under most obvious example in current affairs. August 1964? Were this debate to take the Senate bill; and even with those lim­ Under this bill the President can com­ place 10 years from now, perhaps I might ited exceptions, he could act for only a mit troops without any ratification by understand. Memories do grow dim with brief period of time-30 days. If Con­ Congress; he can send American troops time. We all get a bit forgetful as the gress did not ratify the action beyond into Egypt, Syria, Israel, or anywhere rush of events fades from our memory. that time, it would terminate within 30 else. All he has to do is make the tele­ But how can we forget so quickly? We days. This parameter recognized that phone call to Senator MANSFIELD and to just cannot forget in the same calendar the act of repelling attacks is finite and Senator SCOTT. year in which American troops were that the defensive action is transformed He could commit troopS to Chile. Sup­ withdrawn from Southeast Asia; now, in to an offensive action requiring congres­ pose a few weeks ago, at the time of the the same year, within a matter of weeks, sional sanction. assassination of President Allende, he how can we give unbridled, unlimited to­ That was the basic thrust of the Sen­ had decided that there were vital Amer­ tal authority to the President to commit ate bill. That was the form it was inwhen ican interests involved in Chile, and he us to war? it went to that mysterious conclave called thinks it is 1n our interest to have a In one of the early days after I had the conference committee. The senate military presence in ChUe. Under this come to the Senate, I was seated, having 36178 CONGRESSIONAL RECORD-SENATE November 7, 1973 lunch, in the little dining room where takes that we make; first, we can live That was the conviction on my part. Senators sometimes dine. I was so new with or; second, can be rectified at a later I have been here now.when two wars that I sat at the head of the table by date. But this kind of mistake will haunt were stalted that proved to be what I mistake. I sat in the chair that, by cus­ us the rest of our lives. call major wars, and Congress did noL tom, was traditionally reserved for the It will haunt us every time in the fu­ take a vote on either one of them. I late Senator Richard Russell, of Georgia. ture that an American boy dies some­ blame myself more than anyone else. So No one told me to the contrary. Senator where in the world in a Presidentially I am certainly not trying to lay blame Russell came in to eat. He took another initiated war. The blood of those young at someone else's door. chair, he being the very fine gentleman men will be ours because we are giving This measure in its presen ~ form is not that he was. Finally, somebody winked at away the authority that sends them to as strong a bill, as I see it, as the one me and told me I was in the wrong place. die, and we are giving up the greatest that we approved here not many weeks So I traded chairs, but I sat next to Sen­ responsibility that the Constitution gives ago, but it had to go to conference. Rec­ ator Russell. to the Congress-the power to declare onciliations in language and viewpoints Somewhere in the conversation, the war. had to be made. I am here today not to discussion turned to war, how we get into Former Under Secretary of State Kat­ speak at length but to reiterate my faith it, and how hard it is to get out of it. It zenbach, at the time of his testimony be­ in the judgment of this body, to reiterate perhaps is not very well known, but fore the Foreign Relations Committee, my profound belief and knowledge of a Senator Russell had personal misgivings indicated that that provision of the need that there be some new expression in the sense of why we were there and Constitution was outmoded in this atom­ put on the books-within the Constitu­ what national security interests were be­ ic, nuclear, space age; that these subtle tion, of course-which freshly recognizes ing served by our massive presence there. niceties about Congress' declaring war the congressional responsibility in mak­ But he said: were a little antiquated. That may well ing war. I think any President, any man Whatever misgivings I had about that war­ be. I do not think so, but Mr. Katzen­ who is President, will oppose a bill of and I counseled with President Eisenhower bach did; and if they are, there is a way this nature. It would be in the nature about it In the early days: I counseled with to change that. Amend the Constitution of things for him to do so. He is espous­ President Kennedy about It; and I counseled if we want to say that-if we want to ing the cause of the executive branch. with President Johnson about It-whatever say that in this day and age, only the misgIvings I had, whatever doubts I had, so Such Presidents act in good faith. So we long as our flag Is committed and our troops President has the omniscience to know will never reach the time, I do not think, have been sent, I have got to support those when and why we go to war. So be it. when a President would be in favor of troops and I have to support the flag when I would oppose such a method, but that is a matter that might restrict his power. the decision Is made. the way to accomplish it. But this bill I do not know that I want a President is not the method, Mr. President. who would want to be distributing his That was what Senator Russell told Nevertheless, we shall go ahead. But I power in this field. I am as concerned me. He was a very wise man, one of the hope every Member of the Senate who about it as anyone else, and all of us wisest ever to serve in this bodY. Those votes on this measure realizes what he have an equal concern about the pro­ words of his are better than any that I is doing. I hope that he is not voting to tection of this country. could summon. Once the commitment override simply because this is a way of I do not want to restrict him or to has been sent, the die is cast. making the score 8 to 1. restrain him. This language is big And the die may be cast for 60 days, I hope Senators are not voting to over­ enough and broad enough to give him 90 days, 60 months, 90 months, or 9 years. ride because they really think they have the power to protect this Nation, our And if the troops are sent by the Presi­ captured some of the decisionmaking citizens, our soldiers,ourArmy, our dent to Egypt, they are there, and more process insofar as war-making, is con­ -Armed Forces wherever they may be. . troops will follow, Mr. President, and cerned. This language recognizes a. need for more planes, and more bombs. If the If they think they are doing that, Mr. the constructive judgment of both the troops are sent to Chile, more troops will President, they are very, very wrong. I .President and the Congress. And we are follow. Or if they are sent wherever the am sure those who vote to override will not going to go into a war without the President wants them to be sent, because do it sincerely and with a full and de­ President taking a leading position with that is what this bill permits him to do, cent heart. Mistakes, as I say, can be reference to advocating .that. Congress to send them wherever he wants, for made by decent men. Mistakes can be meet its responsibility also by a declara­ whatever reason. made by men of good will, but still the tion of war. I think this is the most dangerous same, it is a mistake, and that is what So we are not taking.any chances in piece of legislation that I have seen in this bill in its present form is-a mistake, .that field. And I would be quite hesitant my brief 5 years in the Senate. The bill a serious mistake, a nightmarish mistake. to vote for a declaration of war in which has the name "war powers." It has a nice The PRESIDING OFFICER. Who the President of the United States was title. It was nobly conceived, I think, in yields time? not willing to take a position and say its inception, but it has been horribly that war ought to be declared. bastardized to the point of being a men­ Mr. STEVENS. Mr. President, as I un­ So, when this measure is passed-and ace. But we will go ahead, in about an derstand, the Senator from Mississippi I believe that it will be passed-it will hour and 45 minutes, and we will over­ has been designated as the one to control be a moderate declaration of the re­ ride the President's veto. the time. sponsibilities of the Congress. Some of my colleagues will celebrate. The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER (Mr. The President has beaten us 8 to 0 so far ator is correct. BARTLETT). Who yields time? in the veto league, so some of us are Mr. STENNIS. I thank the Chair. Mr. TOWER. Mr. President, I yield my­ eager for our first victory. And so there Mr. President, I yield myself 5 minutes. self such time as I may require. will be some handshakes and some jubi­ The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. The dena­ lation. But what a mistake we are about ator is recognized. tor from Texas is recognized. to make. Mr. STENNIS. Mr. President, going Mr. TOWER. Mr. President, this isa If we want to defeat Richard Nixon by back many, many months-years now­ bill designed to proscribe the powers overriding this veto, we are going to give since the bills on this subject were first of tIle President in the area of the for­ him more authority, and legalize it, than introduced-and I was one of those who mulation and implementation of foreign perhaps he ever drea;ned he had. Not introduced one of the early ones, after policy. What should be understood is that only President Nixon, but every Presi­ the bill by the Senator from New York­ the power to wage war is simply an ex­ dent of the United States, will have at many times since then I have said on tension of the power of the President least the color of legal authorit;v, the this floor that out of the chaos and con­ to conduct diplomacy. The use of the advance blessing of Congress, given on an fusion of the present law, the conflict in Armed Forces is a tool of diplomacy, and open, blank check basis, to take us to decisions of the COUlts, after almost 200 the President of the United States must war. It is a horrible mistake, Mr. Presi­ years since our Constitution was written, be allowed maximum flexibility in this dent. I think \ve ought to have some language .age of fast changes to use that tool as Mistakes are made by mortal men. We on the books that recognized the fact he sees fit. all in this body are that, and we have no that it was still the responsibility of the There are already p.roscriptions on the divine attributes; but most of the mis- Congress to declare war. war making powers of the President. November 7, 1973 CONGRESSIONAL RECORD - SENATE 36179 There has been a great deal of complaint less to act at a time when, in her hour of Mr. President, at this tlme. I would about the fact that the President has travail, Israel was confronted by the fact say specifically at a time of detente, it waged a war in Vietnam without a dec­ that the Soviets were rearming the is even more essential that our Pl'esident laration of war. Troops have been de­ Arabs, and were alerting their troops in have flexibility to operate as he sees fit, ployed in various situations. They have readiness to monitor a cease-fire on a and to use military force 01' the threat been deployed in Lebanon and in· the unilateral basis. of military force as a precision instru­ Dominican Republic and in other situa­ So the context of the times should ment of diplomacy. tions without the consent of Congress. dictate to us that this is no time to pro­ I realize this is a time when everyone But the Congress acquiesced by virtue of scribe the power of the President. can with impunity kick the President, its failure or I'efusal to proscribe the Now, repairing to historical and con­ because he is at a low ebb in popularity President in these actions through deny­ stitutional tradition, let us examine now, and many people are calling for ing him appropriations to allow him to carefully the words of Justice Suther­ impeachment or resignation. But let us do so. land in the case of the Curtiss-Wright think in terms of what we are doing. We We already have adequate restraint. EXpOl·t C01·P. v. the United States (299 are saddling future Presidents with this What we do in the war powers bill is to U.S. 304), a 1936 case. Justice Suther­ kind of proscription. I hope that we are say to the President: "We are going to land said: not so caught up in the hysteria of place you at a calculated disadvantage "It will contribute to the elucidation of Watergate and a desire to punish what in your negotiations with the other great the question if we first consider the differ­ we consider to be wrongdoings of this superpower of this world." Mr. Brezhnev ences between the powers of the federal gov­ President that we make the power of does not have to seek the consent of the ernment In respect of foreign or external the President to effectively formulate affairs and those in respect of domestic or in­ presidium of the Supreme Soviet Union ternal affairs. That there was differences and implement foreign policy a victim or anyone else if he wants to deploy between them, and that these differences are of our emotions on Watergate. troops and commit them to combat. fundamental, may not be doubted. This is a sorry time in which to be What we are saying is that we have "The two classes of powers are different. legislating on this important matter. I only to force the President of the United both in respect of their origin and their na­ hope the Senate will view this matter States to enter into negotiations not from ture. The broad statement that the federal with all of the objectiVity that it call a position of strength, but we are also government can exercise no powers except muster, and will sustain the President going to say to him that he cannot have those specificaIly enumerated in the Con­ stitution, and such implied powers as are on this critical issue. This is the most the flexibility he needs but must rely on necessary and proper to carry into effect the dangerous piece of legislation that, in the consent of the Congress to make any enumerated powers. is categoricaIly true this perilous time, we could accede to, kind of move of a short period of time only in respect of our internal affairs.... The and I plead and pray to the Senate that that is calculated to assert the will and powers to declare and wage war. to conclude they wiII sustain the veto so wisely im­ determination of the United States. peace, to make treaties, to maintain diplo­ posed on this measure by the President This is unJ;>recedented. We have griped matic relations with other sovereignties, if of the United States. around here for a long time about re­ they had never been mentjoned in the Con­ Mr. President, I ask unanimous con­ asserting ourselves and reestablishing the stitution, would have vested in the federal sent to have printed in the RECORD a constitutional powers of the legislative government as necessary concomitants of nationality. Neither the Constitution nor the statement and article on this subject branch with those of the executive laws passed in pursuance of it have any force by the distinguished Senator from Ari­ branch. in foreign territory unless in respect of our zona (Mr. GOLDWATER). We have only ourselves to blame. We own citizens (see American Banana Co. v. The PRESIDING OFFICER, Without should be saying "Mea CUlpa." We are United Fruit Co., 213 U.S. 347, 356); and op­ objection, it is so ordered. guilty of having. delegated away our erations of the nation in such territory must power and responsibility and authority to be governed by treaties, international under­ STATEMENT BY SENATOR GOLDWATER the President of the United States and standings and compacts, and the principles I am concerned that Congress and the to the executive branch over which he of international law...• American people, not unllke the awakening "Not only, as we have Shown, is the federal that occurred in the early 1940's, wll! < regret presides. the decision which is about to be made to­ However, this has been largely in the power over external alfairs in original and essential character different from that over day by a Congress bent upon tearing away domestic fleld over which the Congress internal affairs, but participation in the at the powers and responsibilities of the should establish policy. exercise of the power Is significantly limited. Office of the President. We entered the cal­ We have got arrogant bureaucrats In this vast external realm, with Its impor­ amity of World War II unprepared and we downtown who take congressional legis­ tant, complicated, delicate and manifold are about to lay the makings for our un­ lation and act under its purported au­ problems, the President alone has t1:e power preparedness in some future crisis where thority to make rules and regulations and to speak or listen as a representative of the certainty about the nation's credible strength impose their will on the general citizenry nation. He makes treaties with the advice and wlll is required. and harass business and labor and com­ and consent of the Senate; but he alone In my opinion, the war powers resolution negotiates. Into the field of negotiation the Is one of the most dangerous pieces of leg­ merce. We do not do anything about Senate cannot intrude; and Congress itself is islation In our natlon's history. It will under­ that. powerless to invade it. As MarshaIl said in mine the nation's defense posture at a time However, when we get to the historic his great argument of March 7, 1800. in the when we must be able to demonstrate that field where everyone who is a scholar of House of Representatives, 'The President is we can and are prepared to defend ourselves the American system of Governnlent the sole organ of the nation In its external and uphold our commitments. realizes that the constitutional processes reiatlons, and its sole representative with for­ My concern arises out of the fundamental and recognizes custom and usage and eign nations: Annals. 6th Cong., co!, 613.••• objection that Congress should not be legis­ recognizes that this is a fleld in which It is qUite apparent that if, in the mainte­ lating hard and fast rules In this field. The nance of our International relations, em­ great weight of scholarly writings supports the· executive branch should be pre­ barrassment--perhaps serious embarrass­ the postion that the J!'oundIng Fathers never eminent. ment-is to be avoided and success for our Intended to defined the war powers when It is this field in which we choose to aims achieved, congressional legisiation they were drafting the Constitution and they proscribe the President of the United which is to be made effective through negoti­ most certainiy never meant for Congress to States at a very harrowing time in the ation and inquiry within the international do what they themselves did not feel wise history of this world in which the Presi­ field must often accord to the President a enough to do. dent should have maximum flexibility in degree of discretion and freedom from statu­ Though the war powers resolution does dealing with the various contingencies tory restriction which would not be admis­ give an apparent reach to the President·s sible were domestic affairs alone involved. authorities within the first 60 or 90 da~'s that arise without notice in the interna­ of any crisis, I am gravely concerned that it tional field. Mr. President, we have all grown weary aiso provides for an automatic cut-off on This is manifest foolishness at this of war. We have been taken into every his actions after that time unless Congress particular time when we are in the proc­ war we have participated in in this cen­ specificaIly passes new authorizing legisla­ ess of trying to work within the context tury, actually in matter of fact been tion. I am convinced the Constitution never of detente to arrive in concert with the taken into it, without prior consent of ga.ve Congress the power to restrict the Pres­ Congress initially. We have entered each Ident to a. particular time period ot defense Soviets at·some sort of an arrangement of the nation's freedom, as this resolution by which we may negotiate a peace 111 one of these wars reluctant and 111­ proposes. the Middle East, God help us. God help prepared, but because some external TIle resolution also allows that Congress Israel, if the President had been power- force dictated that we must go into them. may halt any action the President has started CXIX--2279-Part 28 36180 CONGRESSIONAL RECORD - SENATE November 7, 1973 one day after he begins, It Congress should him rather than by reliance upon the De­ n. HISTORICAL OVERVIEW OF PRESIDENTIAL pass a concurrent resolution to that effect. partment of State; the use of Executive privi­ POWER Concurrent resolutions are a vehicle for pol­ lege in refusing to expose certain top staff A. Founding Fathers icy statements or in-house matters of Con­ aides and Information to the probings of gress and no more. It is clearly unconstitu­ Congress; and the right of the Executive to The Framers of the Constitution Invested tional to use a concurrent resolution, which classify information in the military and for­ the Chief Executive with the foreign pollcy­ by nature is not signed by the President and eign policy fields the exposure of which could making powers because of a realizatIon that is not subject to veto, as a device to govern become dangerous to the United States or a single individual with these powers would the activities of another coequal branch of our aUles. not be disturbed by politics of the moment. the Government. These specialized questions are part of the He would look to the long course of history I think it is long past the time when it larger Issue of Whether the President has and use his powers more wisely than a Con­ should be understood that this country is too much power in the foreign alIalrs realm. gress which is constantly looking toward the engaged In a worldwide struggle to deter­ This basic question will be considered from political results. It is my thought that the mine whether freedom wi1l prevail any place the standpoint of political history. It is In Founding Fathers understood that a Congress on earth or whether the advocates of slavery this area where I believe the most Intem­ divided amongst different minority interests by the varying hues of communism will pre­ perate attacks have been made against the might in some crucial moment of history be vail. Whether we like it or not, the only way Presidency and where the distrust of Ex­ loath to give proper direction to a single in this tough world to preserve peace and ecutive authority appears to be particularly necessary American course. Thus they found freedom is by keeping America strong and lacking In any sound historical basis. it proper to place the power of external affairs in a single person where the probabil­ being able and ready to defend it. I believe I. CURRENT ATTACKS ON PRESIDENTIAL the war powers resolution would destroy ity of minority weight would be much less PREROGATIVES likely to have this effect. America's credible strength by which we as­ Indicative of the current, incessant attacks sure our friends and deter our enemies and The emphasis of the Framers upon plan­ on Presidential prerogatives in the conduct ning a government which would be gUided by I ask my colleagues to sustain the President's of foreign affairs are the statements by critics veto of war powers limitations. If the Senate a leader who would act on behalf of a single of the President which I compiled over the people With a single purpose appears both should choose to join the House of Repre­ last year and released In a Vietnam White sentatives In overriding the President's veto in the writings of the Federalist Papers 10 Paper three days after the January 23 an­ and the debates of the first Congress. For ex­ of this resolution, I urge the President to nouncement of a Vietnam ceasefire agree­ explore every possible means for testing its ample, In the course of deliberations by the ment.' The achievement of this agreement' House of Representatives on June 17, 1789, unconstitutionality In the courts. by the President after being under the sys­ Mr. President, I add to my remarks the on legislation creating the Department of tematic harassment, day and night, by in­ Foreign Affairs, James Madison referred to text of a law review article which I published fluential television commentators, news recently on the subject of the President's con­ the great principle of unity and respon­ writers and Congressmen stands as one of the sibility in the executive department." stitutional primacy in matters of foreign re­ greatest vindications possible of the concept lations and national defense Though the debate centered on the Execu­ of Executive guidance over foreign affairs. tive power to remove officers who would be Through a barrage of pessimistic newspaper appointed with the consent of the Senate, [Reprinted with permission from the Vir­ and television reports, often accompanied by the concept which prevailed in the debates hundreds of feet of enemy photographs and ginia Journal of International Law, 463 and votes that day 12 is the same concept (1973) .J film, the Office of the President was able to Which supports the unrestricted authority of steer the most delicate of negotiations. This THE PRESIDENT'S CONSTITUTIONAL PRIMACY IN the Executive to take the initial role In skill and steadfastness of purpose succeeded setting America's course in world matters. FOREIGN RELATIONS AND NATIONAL DE­ in attaining the American goal of peace with FENSE A little remembered fact, which was quite honor and without surrender. apparent then, is that the Senate at that (By BARRY M. GOLDWATER') Lest the character of the thrust against time was considered the chamber of repre­ The Office of the Presidency has come un­ the Presidency be forgotten with the lapse sentatives of the state legislatures and very der the most vigorous attack of any period of time, I believe It is In order to cite a unequal even in that representation. On the during Its history. Many In Congress, prodded minimal sampling of the opinions which other !land, members of the first Congress by self-proclaimed experts in the news me­ daily criticized the President of the United conceived of the President as "the represen­ dia, have undertaken a monumental effort to States. For example, the Washington Post In tative of the entire people .•. guardian of an editorial published on January 7, only 16 restore powers of responsibility which they his country." 13 As Representative Scott feel are held by Congress and have been days before the announcement of the peace, pointed out, the President "is elected by usurped by the Chief Executive. To them, he stated: the voice of the people of the whole Union; acts more as an elected Monarch than he "He has conducted a bombing poliCy ..• the Senate are the Representatives of the does the elected leader of a democratic so ruthless and so difficult to fathom poli­ State sovereignties...." " Republic. tically as to cause millions of Americans to Readings from these formative days of our Nowhere has the issue been pressed more cringe in shame and to wonder at their Constitution would be educational, I believe, vocally and persistently than in the field of President's very sanlty.- for many Members of the Senate Who ~oday national security matters involVing the rela­ On May 15, 1972, Newsweek magazine in­ suggest that the Senate or the Congress tions of the United States with the outside formed its readers "a blockade of Hai­ should take over from the Executive the world. I have written elsewhere of the legis­ phong ..• would almost certainly bring an decision making power of handling world lative struggles which opened the 1970's on Immediate canceUation of the Nixon visit (to security matters. If these critics, who believe a note of challenge by Congress against every Russia) ." 7 History will record that President that the President of the United States can­ military action taken by President Nixon in Nixon was politely received in the Soviet not handle the powers entrusted to him by the Indochina theater.' In partiCUlar, I have Union a few days thereafter. the Constitution and that the cumbersome focused on the attempt by some Members of procedures of Congressional decision making Congress to gather all the fundamental war Two more responses to Presidential deci­ are to be preferred, wish to confront the Issue powers in the Legislative Branch so that the sions during the American involvement in squarely, then their only legal alternative Is Executive cannot engage in military hostill­ Indochina include Congressional criticism of to start the machinery for changing the ties outside the nation without a specific the· President's decision to mine the major Constitution.. mandate from Congress to do so. harbors of North Vietnam. The 1968 candi­ B. Military actions My previous paper attempts to explain why date of the Democratic Party, Senator Hu­ Moreover, I agree with those 'who assert this legislation, referred to as the War Powers bert H. Humphrey, conclUded, "It is fraught that the great shift in power between Con­ Act," WOUld, if adhered to by the President, with danger and will not contribute to the gress and the Presidency in foreign policy Is prevent the United States from undertaking settlement of the War." 8 The 1972 Democra­ a myth.15 For example,· as is documented·in even emergency actions in most situations tic candidate, Senator George McGovern, a study done at my request, there have been and would, in any event, unconstitutionally flatly predicted, "If we. continue under the at least 199 foreign xnll1tary actions in Which interfere with the President's plenary power Nixon policy, we're not going to see our this country participated without a declara­ to use military force whenever he believes POW's again." • tionof war, many of which involved extended this is necessary to the defense of the United Without belaboring recent history, it is campaigns and most· of which took placE!' States and its 210 million citizens.' outside the Western Hemisphere." The pat­ The present article will discuss areas not striking that in nearly every situation the President made the right decisions whUe tern of constitutional usage in the exercise treated in my earlier paper, but which are of this war power did not change from the directly related to the overall arrangement receiving the harshest JUdgment from the first Administration of President Washington of national security powers under the Con­ media and political pundits. In these circum­ to the 37th Administration of Richard Nixon. stitution, such as the Executive authority to stances, the successful conclusion of the Even President Buchanan, widely quoted 11 enter into International agreements other Vietnam War with the return of American as believing that the President had to ask than by the treaty process; the Presidential POW's and the movement toward enormous for congressional authority to employ land power to initiate major foreign policy policy changes during the Nixon Administra­ and naval forces, acted without any author­ changes through personal advisers around tion increase a growing feeling I have about ity from Congress when he ordered a naval the Founding Father's concept of the foreign force into Cuban waters with directions "to Footnotes at end of article. affairs discretion of the President. protect aU vessels of the United States on Novem,ber 7, 1973 CONGRESSIONAL RECORD - SENATE 36181 .the high seas from search or detention by the Congress. Foreign military sales con­ volves the treaty powers of the Senate. There the vessels of war of any other nation." IS tracts alone total some 3,300 annually.'" is a growing feeling in Congress, reflected by A conflict with Great Britain. was avoided According to Fred Bnzhardt, General the advocates of war powers legislation as only by its abandonment of its claim to the Counsel of the Department of Defense, at well as critics of executive agreements, that right to visit and search in time of peace." least 60 percent of the executive agreements the deployment of forces itself, particularly in areas of actual or potential hostilities, III. EXECUTIVE AGREEMENTS of Interest to his department are in imple­ mentation of foreign aid legislation.'· The should be carried out only through the treaty A. Ninety-nine percent have congressional next largest categories are those concerning processyJ collaboration United Sttaes rights to const!'uet, operate The Department of State responds by argu­ The pattern of making international exe­ and maintain mllitary facilities and instal­ ing that there are no agreements with for­ cutive agreements follows the same historic lations overseas. These, in the main part, eign governments that do necessarily create course. During the first fifty years of govern­ may properly be considered to have been commitments by the United States.'" Agree­ ment under the Constitution, the President specifically prOVided for in the annual Mili­ ments permitting the United States to use is believed to have entered into at least 27 tary Construction Authorization and Appro­ faclllties abroad are considered in this view international agreements without obtaining priation Acts." to secure for the United States an "option" the consent of the Senate under the treaty There Is no justification for the cries of to use the facilities!" process. The figure increased to 238 execu­ horror from Congress about the alleged ar­ My own position on the constitutional Is­ tive agreements in the second half century rogance of a President run wild with the sue is in disagreement with both viewpoInts. after the Constitution came Into force.'" Dur­ powers allotted to the Senate or Congress. I dIsagree With those in Congress who con­ ing the third fifty year period, 917 executive Of the 5,590 executive agreements in effect tend a treaty is reqUired in order to station agreements were concluded 2' and more re­ on April 1, 1972, only 64, a minute fraction United States troops on foreign sol1, but I cently In the period from 1946 to April of can be classified as having been concluded also believe the Executive spokesmen have 1972, 5,589 international agreements other by the President on the basis of his consti­ conceded too much in their attempts to draw than treaties were made by the President."" tutional authority alone." Congress has put a narrow technical line between formal com­ More executive agreements have been made its legislative stamp of approval on 5,526 of mitments and "options." When American than treaties in every period of our history these agreements, the Senate Itself having forces are sent into waters or lands where except the first fifty years.'" thereby concurred in the principle that a they cannot avoid coming under attack It is significant that the first known use two-thirds vote by the Senate Is not required should the host country be invaded or at­ of executive agreement occ,lrred as early as to enter into entanglements with foreign tacked, our forces have little option left but the second Congress. It recognized the exist­ countries. to protect themselves whatever our policy ence of Inter~_ational agreements other than B. Troop deployments and political com­ may be toward the country suffering the the treaty by legislating that the Postmaster mitments attack. It IB my view that we go into these General may make agreements with the Post­ In reality, the current challenge from situations with our eyes open and that Presi­ masters in any foreign country for the devel­ the legislature does not stem out of a basic dents possess full authority to do what they opment of international communication constitutional difference with the Executive have been doing so long as a President be­ through the postal service." for Congress has conceded this Issue through lieves the action Is reqUired for the national This early agreement is typical of the vast its own legislative delegations of authority. defense and he has the consent of the for­ bulk of non-treaty agreements which have The concern is rather about the polley of eign country inVOlved.'" been reached in recent years. Contrary to a Chief Executive who appears to be mov· For example, on August 7, 1946, the Soviet the emotional rhetoric of Presidential critics, ing American military men and material Government demanded that Turkey allow It 99 percent of executive agreements in force around the globe in ways that rnn the risk to partIcipate in the defense of the Straits. for the United States as of Aprll, 1972, were of an attack on our troops stationed in an­ which meant the occupation of Turkey. On either previously or subsequently authorized other country or that convey a commitment August 15, President Truman obtained coun­ by statute."" Over 1,000 of the present exec­ to a foreign country that the United states sel from Secretary of State Acheson, Secre­ utive agreements deal With the subject or wlll come to its defense if it Is attacked.·3 tary of Navy Forrestal, Under Secretary of surplUS agricultural commodities, pursuant Here, the Department of State protests Vig­ War Royall, and the Chiefs of Staff. When a to Federal statute.'" The Department of Agri­ orously that no such executive agreements recommendation was laid before the Presi­ culture has also participated in several exist.'" The very small number of mutual dent urging that a powerfUl naval force, in­ agreements with foreign countries for the defense agreements with foreign nations that cluding the newly commissioned supercarrier control and eradication of foot-and-mouth are in a form other than a treaty include Franklin D. Roosevelt, be sent to IstanbUl, disease of animals and for the sale of certain language that takes away from tlle binding­ General Eisenhower, then Chief of Staff of foods for use in school lUllch pl'ograms of ness of any obligation;'" These three agree­ the Army, asked whether it was sufficiently other countries.:!1 ments, which involve Turkey, Iran, and Pak­ clear that the course recommended could lead to war. Secretary Acheson reports that The Federal Communicatlolls Commission, istan, state that tIle United States, in ac­ cordance with the Constitutlon, will take at this moment the President took from the acting pursuant to a 1964 law which I au­ drawer of his desk a large map of the Middle thored,2S has participated in the cOllclusion such action "as may be mutually agreed upon." ,. This is constnled by' 0,11' Govern­ East and Eastern MediterI'anean and asked of 45 executive agreements between the the group to gather around behind him. The United States and other countries. These ment to mean that the undertal(ing is merely to consult the other goveu.ment when re­ President then gave a brief lecture on the relate to the reciprocal granting of authori­ strategic importance of the area and the zations to permit licensed amateur radio op­ quested to do so on appropriate action which the United States might be prepared to take extent to which the United States must be erators of either country to operate their prepared to risk to keep it free from Soviet ham radio stations in the other country.'" in accordance with the Constitution. This in turn is construed by our Government to domination. When he finished, writes Mr. Another group of at least 38 executive agree­ Acheson, none doubted the President under­ ments wel'e concluded for the establishment allow at the time consideration of what we are going to do. It does not promise to come stood fully all the implications of the recom­ of satellite tracking and data stations in for­ mendations for the defense of the Straits,'·, eign countries under authority resting in the to the defense of another countryp The Department of State apparently con­ In his brief manuscript which he dictated National Aeronautics and Space Act of 1958.'" cedes the constitutional principle that in the fall of 1967 on the basis of personal The list of executive agreements also in­ "agreements which involve a basic political diaries and recollections, Robert Kennedy re­ cludes custoIllS conventions,31 agreements for cOllllllitment, such as an undertaking to lated the top level deliberations of the Ken­ the avoidance of double.taxation,"" private if nedy Administration in those thirteen da~'s investment guarantee agreements,"" and co­ come to the defense of another country it Is attacked, should be cast in the form of of October, 1962, when the declslonmaking operative weather progralllS?' among a great a treaty in the constitutional sense." John of President John Kennedy "brought the many normal subjects of da:Iy contact be­ R. world to the abyss of nuclear destruction tween modern day peoples and :latlons." Stevenson. Legal Adviser to the Depart­ lllent of State, admitted as much before Sen­ and the end of mankind." 50 With missiles Even the overwhelming percentage of ator Ervin's Subcommittee on Separation of being placed in Cuba having an atomic war­ agreements participated In by the much Powers In May of 1972. He added: head potential of one-half the ICBM capacity maligned Department of Defense involve pro­ "Such agreements establish basic foreign of the Soviet Union and with indications that gralllS expressly authorized by Congress. pollcy commitments to which our overall these missiles were being directed at Ameri­ Pursuant to the Foreign Assistance Act of defense and security strategies are keyed, can cities where 80 n~lllion Americans would 1961'" and the Foreign Military Sales Act?' and I belleve that the framers of the Con­ be dead within a few minutes of their being bllaterai executive agreements have been stitution clearly Intended that such funda­ fired upon, President Kennedy felt compelled entered into ~ith over 40 countries setting mental agreements should be subject to the to take defensive action Without consulting forth in general terms the conditions under special safeguards of the treaty clause."·· Congress.'" Before the President met with which mUltary assistance wlll be provided.•' The basic disagreements between the De­ any Members of congress and informed them In the implementation of these basic agree­ partment of State and some Members of for the first time of the crisis, he had made ments, thousands of indiVidual executive Congress occurs over the question of Whether his decision in favor of the blockade of waters agreements have been concluded pursuant or not the mere deploylnent abroad of United around Cuba; and, without any specific legis­ to the same general grants of authOrity by States forces is a major foreign policy action lative action or consultation, he put six WhIch affects the country's destiny and there­ Army divisions on alert, deployed 180 ships Footnotes at end of article. by is the kind 01 a commitment which in- into the Caribbean, and. disb,trsed the atra- 36182 CONGRESSIONAL RECORD-SENATE November 7, 1973 teglc Air Command to clvlllan landing fields with my vote'" in favor of the Bricker nor any law which Congress may pass, can around the country In order to lessen Its Amendment of the 1950's,'" I would merely bind the President "to monogamous cohabi­ vulnerability In case of attack. At the same state that Senator Bricker's proposal was in tation with the Secretary and Department of time the B-52 bomber force was ordered into the form of a Constitutional Amendment and State in the conduct of foreign affairs." 72 the air fully loaded with atomic weapons.51 that it involved certain crucial State's rights President Wilson relied on his unofficial am­ The result of such decisive action was the questions absent from the contemporary bassador-at-large, Colonel Edward M. House, October 27, 1962 agreement by the Soviet debate. The Bricker Amendment fUlly rec­ in the management of foreign affairs, and Chairman, !lIr. Khrushchev, to dismantle and ognized the need for changing the Constitu­ President Franklin D. Roosevelt controlled withdraw the mlsslles from Cuba.5O The tion in order to touch this matter and it in his foreign policy with the help of Harry United States apparently closed the book on no way supports the position of present day Hopkins at his side.73 Reliance on the rela­ the Cuban crisis about December 6 of that Members of Congress who wish to alter for­ tively new organization of the National Se­ year, by which date the United States had eign affairs powers through simpie legisla­ curity Council 7' has its origins in the role counted at least 42 medium-range missiles tion. of the Councll and its Operations Coordinat­ and verified as well that 42 Soviet jet bomb­ It should also be remembered that the ing Board under President Eisenhower. The being removed from Cuba on Soviet ships Bricker Amendment contained an import­ influence exercised by the Council's Chair­ ers were being transported home from Cuba.'" ant provision which would have provided man can be traced to the successive appoint­ C. The President's constitutional that no executive agreement or treaty should ments of McGeorge Bundy, Walt Rostow and independence be made "respecting the rights and free­ Henry Kissinger as the Special Assistants These are the kinds of situations In which I doms of citizens of the United States rec­ for National Security Affairs to the three believe the Founding Fathers have empow­ ognized in this Constitution, the character most current Presidents. The system came ered the President to mobilize, deploy, and and form of government prescribed by the into being long before President Nixon." even direct Into action, the military forces Constitution and laws of the United States, It is true Mr. Kissinger has a staff of some which Congress has provided for this coun­ matters which involve no substantial mu­ 54 substantive officers,76 but there is nothing try by its various authorization and appro­ tuality of interest as between the United sinister or improper in this. There have been priation statutes. In other words, I believe States and other sC'vereign states, or any enormous pollcy changes in movement dur­ the survival of this nation is a concern of the other matters essentially within the domes­ ing the Nixon Administration and the need Executive which he can pursue by using tiC jurisdiction of the United States." .. has grown more than ever for a President to whatever forces Congress has supplied, in These grave questions of local, domestic have competent top advisors on whom he can Whatever ways, outside the territory of the affairs which were a focal-point of the count for aid in Implementing these basic United States, that he believes is necessary in Bricker Amendment debates have been re­ changes. I believe a smail group'of people, the defense of America and its freedoms. moved from consideration today by.virtue working closely with the President,is a neces­ His power to do this is vested in him as of a Supreme Court decision which was later sity in helping any Administration develop Commander-in-Chief, as the Executive power handed down. It is now firmly established by and implement such new departures as have of a sovereign nation, as the executor of the tile High Court that specific rights and guar­ occurred in this one. The transformation of antees secured by other provisions of the United States relations with its ailies to one laws, treaties, and Constitution of the United in which our country wlll carry less of the States, and as the organ of this nation in its Constitution cannot be altered under the guise of the treaty power."' burden, the openings to Communist China foreign affairs. The many autho

Troops Go." The Evening Star-News, :Mar. 29, n ld. rC'R. KENNEDY, THffiTEEN DAYS 23 (1969). 1973, at 1, cols. 1-8. '" U.S. Dept. of State compilation, Hearing r" ld., at 35, 36. 10 THE FEDERALIST no. 73, at 409 (rev. ed. on S. 3475, supra note 22, at 416. "ld., at 52. President Kennedy did meet 1901) (with special introduction by Goldwin ,,, E.g., testinlOny of Senator J. W. Ful­ with Congressional leaders, but only after he Smith). bright, Hearing on S. 3475, supra note 22, at had taken these actions and decided upon u 1 ANNALS OF CONGRESS 499 (1789-1790). 54; testimony of Senator Cllfford P. Case, id., the navai blockade. Many in Congress advised " See generally, id. at 456-585. at 109. more forcefui action than he was prepared 13 See remarks of Mr. Hartley, id. at 581. "Colloquy between John R. stevenson, to take. ld., at 53, 54. " ld. at 533. Legal Adviser, U.S. Dept. of State. and Pro­ r,' ld., at 110. '" Remarks of Eugene V. Rostow, YALE LAW fessor Philip B. Kuriand, Chief ConsnJt.ant, ." Library of Congress, Legislative Refer­ REPORT, Fall and Winter of 1971-1972, re­ Senate Subcommittee on Separation of Pow­ ence Service. A Selected Chronology on Cuba, printed at 118 CONGRESSIONAL RECORD, vol. ers, Hearing on S. 3475, supra note 22. at 2.80, October 23, 1962-January 1, 1963, at 1-13. 118, pt. 9, p. 11129. 281. "" Goldwater, supra note 1, at 435-443, also 16 See generally Emerson, War Powers Leg­ '" ld., at 280. see Emerson, War Pou'ers: An Invasion 01 islation, 74 W. VA. L. REV. 53 (1972), Ap­ '0 ld. Presidential Prerogative, 58 A.B.A.J. 809 pendix A, as reprinted with supplementary '1 ld. (August 1972). data in War Powers Heal'ings Be/ore tit Sub­ "Stevenson, Hearing on S. 3475, ~up,.a '1ote f,J Goldwater, id., at 445-447. committee on National Security Policy and 22. at 256. 0' On March 15, 1973, the Senate Demo­ Scientific Development 0/ tile House Comm. " ld. cratic Policy Committee voted without dis­ on Foreign Affairs 93d Cong., 1st Sess. at 328 00 E.g., remarks by Senator Ervin relative to sent that U.S. troops stationed overseas be (1973). There have only been five declared stationing U.S. troops in other countries, reduced by two-thirds. 119 CONGo REC. p. 8080 wars, the War of 1812, the War with Mexico Ilearing on S. 3475, supra note 22, at 267. (daily ed. March 15, 1973), p. 8351 (daily ed. the Spanish-American War, and World Wars 01 The State Department Legal Adviser as­ March 19, 1973). I and II. serts that "even where agreements are in­ This is exactly the kind of pollcy directives 11 E.g., Appendix A to statement of Leon volved, they do not necessarily create com­ which I believe Congress cannot legislate. Friedman, special counsel, A.C.L.U., War mitments by the United States." Stevenson, Acting as Commander-in-Chief, which con­ Powers Legislation, supra note 3, at 806-807. Hearing on S. 3475, supra note 22, at 257. fers upon him supreme command and di­ "C. BERDAHL, WAR POWERS OF THE EXECU­ ., "Agreements permitting the United rection over the Armed Forces, the President TIVE IN THE UNITED STATES 51 (1921). States to use facilities abroad do not in any possesses full constitutional authority to di­ ,. ld. sense require deployment of U.S. forces.... rect the movement of the forces. He can c'" W. MCCLURE, INTERNATIONAL EXECUTIVE The agreements simply constitute action by send them anywhere, with the consent of AGREEMENTS 4 (1941). the President to secure for the United States the host countries, necessary to U.S. foreign " ld. an 'option' to use facilities." Stevenson, id. policy objectives and U.S. defense. J. POM­ ~'Compllation of numbers of treaties and This interpretation is also accepted by the EROY, AN INTRODUCTION TO THE CONSTITU­ international agreements other than treaties Department of Defense, whose General Coun­ TIONAL LAW OF THE UNITED STATES 472 (1879). concluded by the United States during the sel testified that agreements concerning our Moreover, the Framers never meant for period Jan. 1, 1946, to April 1, 1972, by U.S. rights to construct, operate and maintain Congress to have authority to lay down auto­ Dept. of State, in Hearing on S. 3475 Be/ore military facilities and installations overseas matic restl'ictions governing the Executive's the Subcomm. on Separation 0/ Powers 0/ the "provide only an option to the U.S. Govern­ troop deployment decisions in advance of Senate Comm. on the Judiciary, 92d Cong., ment, and the exercise of the option is de­ the actual setting in which the President 2d Sess. at 416 (1972), (hereinafter Hearing pendent upon both authorizations and ap­ might feel compelled to act. This is not the 0108.3475). . propriations from the Congress." Buzhardt, way they planned the Constitution to fUllC­ Z-I ld.; MCCLURE, supra note 20, at 4. id., at 333. tion. As Hamilton wrote in the Federallst No. '\ 1 Stat. 232, 239 (Act of Feb. 20, 1792). "The legal arguments in support of the 23, "The circumstances that endanger the '" U.S. Dept; of state compilation, Hearings President·s power to make executive agree­ safety of nations are infinite; and for this on S. 3475, supra note 22, at 416. ments in every consequential respect equiv­ reason no constitutional shackles can wisely ,. Testimony of John R. Stevenson, Legal alent to a treaty are set forth in a general be imposed on the power to which the care Adviser, U.S. Dept. of State, Hearing on S. constitutional discussion by Assistant Attor­ of it is committed." 3475, id. at 249. ney General Erickson, Hearing on S. 3475, '" New York Times Co. v. United States, 403 "' "List of executive agreements with for­ supra note 22, at 307-313, and in a volumi­ U.S. 713, 727, 728 (1971). eign states, since World War II, in which the nous stUdy by Professor Myres McDougal r., 100 CONGo REC. 2374 (February 26, 1954). Department of Agriculture has participated," and Asher Lans, written twenty-eight years ""S.J. Res. I, 83d Cong., 1st Sess. (1953). id. ago but still eminently useful. McDougal­ at 555. 66 ld., § 3. '" Communications Act of 1934, §§ 303 (1) , Lans, Treaties and Congressional-Executive 61 Reid V. Covert, 854 U.S. 1 (1957). 310(a); 47 U.S.C. §§ 303(1), 310(a) (1934). or Presidential Agreements: Interchangeable 'oS E.q., testimony of Senator J. Willlam .,. Part (b) of llst of communications agree­ Instruments 0/ National Policy (pts. 1-2), Fulbright Hearing on S. 1125 be/ore the Sub­ ments entered into between the United 54 YALE L.J. 181, 534 (1945). A recent article committee on Separation 01 Powers 0/ Ute States and other countries, Hearing on S. which conclUdes the Constitution prOVides Senate Comm. on the Judiciary, 92d Cong., 3475, supra note 22, at 573-575. ample authority for the executive agreement 1st Sess., Exeeutive Privilege: The Withholii­ "0 List of Intergovernmental Executive is· Hopson, The Executive Agreement in ing 01' In/ormation by the Execlltive, at 21 Agreements in which NASA has participated, United States Practice, 12 Am FORCE JAGL. (1971) . REV. 252 (1970). id. at 594, 595. 69 As to the use of the Armed Forces in the '" List of executive agreements in which the Professor McDougal retains 11is earlier po­ national defense, I have mentioned above U.S. Dept. of Treasury has participated in sition. He writes: that the United States has engaged in at since World War II, Customs, id., at 617. It seems to me that our usage during the least 204 foreign mllltary hostillties in its '" ld., Tax, at 620-622. past twenty-five years strongly confirms that history and only five have been declared the President's independent powers over for­ ~'Chronologicaillst wars. See text accompanying note 16 to note of investment guaranty eign affairs include a competence to make agreements and Amendments, 1948 to 1972, 19, supra. important agreements of substantial dura­ I have also cited above the prevalence of Overseas Private Investment Corp., id., at tion. Certainly, our experience as a nation 601-604. executive agreements over treaties in every in an increasingly dangerous worid indicates perIod of our history but the first fifty years. "List of executive agreements in which that it is indispensable that he have such the National Oceanic and Atmospheric Ad­ a competence. See text accompanying note 20 to note 23, ministration, U.S. Dept. of Commerce, has supra. participated since World War II, part "B. Letter from Myers McDougal to Barry The historical precedents of executive Goldwater, Jan. 12, 1973 (unpUblished letter privilege have been well summarized and Cooperative Weather Programs," id., at 565, in author's personal files). 566. analyzed by Wllllam H. Rehnquist, then As­ An early treatise by John Bassett Moore os See generally replles of U.S. Government sistant Attorney General, in his appearance Agencies to letter of senator sam Ervin, Jr., setting forth numerous examples of purely before the Senate Subcommittee on Separa­ Chairman, Subcommittee on separation of executive agreements, on a wide range of tion of Powers on August 4, 1971. Hearings on Powers, soliciting Information on the num­ topics, having far-reaching importance, is of S. 1125, sllpra note 68, at 420-438. An exhaus­ continued significance. This paper was cited tive study covering a concentrated period of ber of executive agreements entered into, id.. apprOVingly by the Supreme Court as por­ at 552-627. time is made in Kramer and ?>1arcuse, Execu­ traying "the historic conception of the title Privilege-A Study the Perfod 1953­ ,. 22 U.S.C. §§ 2151 et seq. (1961). 01 powers and responsibillties of the Presi­ 1960 (pts.1-2), 29 GEO. WASH. L. REV. 623, 827 "22 U.S.C. §§ 2751 et seq. (1968). dent in the conduct of foreign affairs." (1961). ,. Testimony 01 J. Fred Buzhardt, General Moore, Treaties and Executil'C Agreements, The principle of usage has been recogniz~d Counsel, U.S. Dept. 01 Defense, Hearings on 20 POL. SCI. A. 385 (1905); cited in United by the Supreme Court as a determining fac­ S. 3475, supra note 22, at 331. States v. Pink, 315 U.S. 203 (1942), at 230. tor in constitutional interpretation. In Unit­ "ld. ·'D. ACHESON, PRESENT AT THE CREATION ed States v. Midwest Oil Co., 236 U.s. 459 " la, at 332. 195, 196 (1969). (1915), the Court approved the validity 01 a 36186 CONGRESSIONAL RECORD - SENATE November 7,>'1973 long continued practice of the President to "The Council was established by the Na­ making him "subject as to be obliged to pro­ withdraw public land from private acquisi­ tional Security Act of 1947. approved July 26, duce alI papers (Congress] might call tor." tion even though this con1iicted with a 1947, 50 U.S.C. § 402. P. Ford. I THE WRITINGS OF THOMAS JEFFER­ statute by Congress which made such lands ~5. Conedse, authoritative descriptions of SON 190 (1892). free and open to occupation and purchase. the history and role of the National Security Under a well-settled rule of legislative in­ Using practice to fix the construction, the Councll are in Hearings Before the Subcomm. terpretation, Federal courts are compelled Court explained, "is not reasoning in a circle on National Policy Machinery 0/ the Senate to resort to the legislative history of a stat­ but the basis of a wise and quieting rule that Comm. on Government Operations, 86th ute to determine whether, in light of the in determining the meaning of a statute or Cong., 2d Sess. (1960) and S. FALK-T. BAUER, artiCUlated purposes of the legislation. Con­ tile existence of a power, weight shall be NATIONAL SECURITY MANAGEMENT-THE NA­ gress intended that the statute apply to the given to the usage itself--even when tfie TIONAL SECURITY STRUCTURE. Chapter III (re­ particular cases in question. Allen V. Board validity of the practice is the subject of in­ vised ed. 1972). The former was prepared by of Elections, 393 U.S. 544, 570 (1969) • From vestigation." ld., 473. two top members of the NSC staff and the lat­ the mass of the legislative history articu­ A decade later the Court again looked to ter is a volume furnished for instructional lating the purposes of the Treasury Act of usage as a ground in rejecting Congressional purposes at the Industrial College of the 1789, as so well explained by Professor Berger control of a Presidential action. In holding Armed Forces. himself, it is clear the Members of tbe first that Congress could not shift gears after 73 ,,,. Fulbright, supra note 68, at 21. Congress gave no thought to the statute as years of practice and suddenly legislate con­ 11. During debates in the first Congress, being applicable to information which the ditions on the removal by the President of James Madison contended that wanton acts Executive might determine could not be executive officers, even though such prac­ of "mal-administration" would subject the Safely communicated, but bad in mind only tice had often been the subject of bitter con­ President to impeachment and removal. 1 information of a kind which the Executive troversy, the Court argued: ANNALS OF CONGRESS 498 (1789-1790). Madi­ would furnish voluntarily or indeed might Nor can we concur ... that when Congress, son even avowed, "I am not afraid to place my thrust upon them. after full consideration and with the aqui­ confidence in him (the President), especial­ Similarly, a 1928 Act of Congress pertain­ escence and long practice of all the branches ly when I know he is ... llable to be displaced ing to the furnishing by Executive Depart­ of the Government, has established the con­ if his conduct shall have given umbrage ments of any information requested by the struction of the Constitution, it may by its during the time he has been in office." ld., at Senate and House Committees on Govern­ mere SUbsequent legislation reverse such 462. ment Operations (45 Stat. 996) was intended construction. It is not given power by itself 78 1 ANNALS OF CONGRESS 585, (1789-1790). by Congress to include only information of thus to amend the Constitution. Myers v. '" E.g., see remarks by James Madison, 1 types which the Executive had preViously United States, 272 U.S. 52, 152 (1926). ANNALS OF CONGRESS 463, 498, (1789-1790). furnished to Congress voluntarUy. Wolkin­ '·In centralizing the national defense pow­ ... Myers v. United States, 272 U.S. 52, 176 son, Demands Of Congressional Committees ers in the President, the Framers were in­ (1926) . for Executive Papers, 10 FED. B. J. 103, 322, fluenced by precedents in the practice of 8' Berger, Executive Privilege v. Congres­ 323 (1949). European nations, in former plans of union sional Inquiry (pts. 1-2), 12 UCLA L. REV. Should Congress pass a statute plainly re­ for the colonies, and in the then recently 1044,1288,1320 (1965). quiring the Executive to prOVide aU kinds of e3tablished State constitutions. Berdahl, .2 CONGRESSIONAL RECORD, vol. 118, pt. 17, information without any room for Executive supra note 18, at 115; McClure, supra note pp. 21514, 21515. 31 CONGo Q. WEEKLY REP. discretion, I believe the statute would be un­ 20, at 251-258. 294 (1973). constitutional't() the extent it invades the The members of the Constitutional Con­ .. See text of President Nixon's March 12, Fresident's independent prerogative to with­ vention were equally familiar with the writ­ 1973, policy statement on executive privllege. hold information in the areas of foreign re­ ings of Locke, Montesquieu, and Blackstone, 31 CONGo Q. WEEKLY REP. 608 (1973). lations, national defense,. pending law en­ all of whom saw the making of defensive •• Memorandum of Richard Nixon (August forcement matters, internal discussions or war and the conduct of foreign relations as 30, 1971), Hearing on S. 1125, supra note 68, confidential investigative reports. See text at being properly the function of the Executive. at 45. 46. notes 98 to 104. Locke. Two 'TREATISES ON CIVIL GOVERNMENT "" ld., at 46. OIl Senator Ervin, who chaired Senate hear­ (Gough, ed.) Bk. II, §§ 145-148, 159, 160 ... The legal bases in support of the Execu­ Ings on executive privilege, appears to agree (1966); Montesquieu, SPffiIT OF THE LAWS, tive's position are set out by Assistant At­ on these limited areas of independent Presi­ Bk. Xl, Ch. 6 (1805); Blackstone, 1 COM­ torney General Rehnquist, id., at 420--442; dential power. Ervin. id. at 252, 253. MENTARIES, 253-54. Kramer and Marcuse, supra note 69, at 898­ "White House Executive. Privilege Text, n The Constitutional "primacy" of the 909. supra note 83. President in tile field of foreign affairs is "'31 CONGo Q. WEEKLY REP. 294,295 (1973). )fA) ld., at 609. apparently recognized by at least six Justices •• ld., at 295. From 1969 to 1973, 8ectretary His announcement does not indicate that of the present Supreme Court. Justice Stew­ of Defense Laird made 86 appearances before President Nixon has thrown a blanket im­ art, joined by Justice White, has impllcitly Congressional Committees, encompassing munity over his private stalf. The President stated that the Constitution endows the Pres­ over 327 hours of testimony. See White House declared, both at bis press conference of ident with "a large degree of unshared power Executive Privilege Text, supra note 83. January 31, 1973, and in his formal paper of in the conduct of foreign affairs and the .., Berger, supra note 81, at 1323. March 12, 1973, that "the question of whether maintenance of our national defense...." •• See text of Resolution of Senate Demo­ circumstances warrant the 'exercise of execu­ New York Times Co. v. United States, supra cratic Pollcy Committee-Re: Executive tive ,privilege should be . determined on a note 63, at 729. Privilege, 119 CONS. REC. (daily ed. Jan 18, case-by~case basis." ld., at 609. " Justice Blackmun has written: 1(73) , at p. 1322. Applying this rule to the merits of the Article II of the great docllment vests in 9t S. 1125, Am. No. 343, 92d Cong., 1st Bess. Watergate affair, where wrongdoing has been the Executive Branch primary power over the (1971); S. 858, 93d Cong., 1st Sess. (1973). charged, the President announced that all conduct of foreign affairs and places in that .21 Stat. 65, Rpproved Jun 25, 1789. members of the White House staff will appear branch the responsibility for the Nation's .3 E.g., Berger supra note 81, at 1060; Ful­ voluntarily, when requested, before the Sen­ safety. ld., at 761. bright, supra note 68, at 24. ate select committee (known as the Ervin Justice Marshall has added that "it is •• 1 Stat. 66. committee) which is investigating this case. beyond cavil that the President has broad ·'1 ANNALS OF CONGRESS 592-615 (1789­ The President said any of his staff so invited powers by virtue of his primary responsibility 1790). 'i:i~1 tesify under oath and will answer ['ully for the conduct of our foreign affairs and his .'1 ANNALS OF CONGRESS (1789-1790). all proper questions. Executive priVilege is position as Commander-in-Chief." ld., at rn Professor Berger, who himself has sug­ expressly reserved only as to specifiC questions HI. gested that the Treasury Act might be an which may develop in the course of' the ses­ Chief Justice Burger, joining Justice Har­ early precedent, nevertheless testified before sions. Text of President Nixon's announce­ lan and Justice Blackmun, has openly de­ the Senate Hearing on Executive priVilege ment concerning the Watergate matter, The scribed the scope of executive power as one that: \Vash. Post, Aprll 18, 1973, at A 24, cols. 1--3. of "Constitutional primacy in the field of "Hamilton really wanted to be in a position White House stalf members also were di­ foreign affairs.•• :' ld., at 756. to intrude, to oller his advice. He wanted to rected to testify before a Federal grand jury Justice Rehnqulst joined by the Chief Jus­ have a pipeline into the Congress, so he investigating Watergate ifcaUed.The Wash. tice and Justice White, grounded their opin­ could COllle in and advise the Congress about Post, Mar. 31,1973, at A I, col. 7; A 11, col. 1. ion in a recent "act of state doctrine" case financial matters.•.• With the Treasury 1m "No case has authoritatively determined on the underlying basis of "The primacy of Department, they (the first Congress) were the extent to which Congress may compel the the Executive in the conduct of foreign rela­ more concerned with warding off Hamilton's production of testimony or documents from tions" and "the lead role of the Executive In officiousness. TIle provision for a call for in­ the executive branch of government.·. • :' foreign policy." First National City Bank v. formation was merely designed to bar Hamil­ Borman, Policy the E;xecut.ive Privilege, 5 U. Banco Naeional De Cuba, 406 U.S. 759, 767 ton's unsought intrusions," Berger, Hear­ OF MICH. J, OF LAW REFORM: 568 (Spring 1972). (1972). ings on S. 1125" supra note 68, at 296. 297. at 569. " Acheson, The Eclipse of the State Depart­ To which, I might add that Hamilton is 10> E.g., Am. Law Div., Lib. of Cong., Memo­ ment, 49 FOREIGN AFFAlRS 593, 595 (July 1971) • quoted, by Jefferson as construing the Act randum of June 7, 1971, Hearings on S. 1125, "ld., at 598, 601. creating the Treasliry Department as not supra note 68, at 543-551. Novenl,ber 7, 1973 CONGRESSIONAL RECORD - SENATE 36187 103 See note 69, supra. Fnlbrtght. to S. 1125, 92d Con., 1st Sess. the record it was essentially a Presiden­ •., The Supreme Court has remarked that (1971), § 307(a). tial war-as was so viewed around the the scope of the Congressional power of in­ "" Myers v. United states, supra note 80, at world. The United States was saved quiry "is not without limitations:' More 127. specifically, the Court said Congress "cannot . """ Pomeroy, supra note 62, at 289; Steven­ miraculously from disgrace and defeat inquire into matters which ~re within the son, Hearing on S. 3475, supra note 22, at because the people and tbe Congress, exclusive province of one of thllother branch­ 267, 268; J. Moore. letter of May 15, 1972, irl., even though they thoroughly disap­ es of the Government. .•. Neither can it at 629-632; Mathews, The Constitutional proved, still exercised the patience to see supplant the Executive in what exclnslvely Pou:er 0/ the President to Conclude Interna­ it liquidated without terribly undue belongs to the Executive:' Barenblatt v. tional Agreements, 64 YALE L.J. 345 (1955), damage. We still do not know what that United States, 36Q U.S. 109, Ill, 112 (1959). at 387, 388. damage was or may prove to be in lCO Ex. Order 11652 of March 8, 1972, WEEK­ 130 D. ACHESON, FRAGMENTS OF MY FLEECE history. LY COMPo OF PRES. Doc., March 13, 1972, at 196 (1971). 545. '" Solzhenltsyn, TIle Truth 0/ Art, reprint­ Ali of us who advocated this measure .«1 Federal Times, Aug. 23, 1972, at 4. ed In the Wash. Post, Outlook BI., at B4, co1s. before the Senate, and it has had 3 M N.Y. Times, March 9, 1972, at 12, col. 4. 2, 3 (Aug. 27, 1972). years of consideration, with a most tre­ ''''Ex. Order 11652, supra note 105, § 5(B). m J. Q. Adams, An Eulogy on the Life and mendous volume bf expert testimony 100 Id., § 5(0). Character 0/ James 111mlison, September 27, given by constitutional authorities and 110 Id.,§ 5(E). 1836,72,73 (1836). experts of all sorts, extended debate on 111 Federal Times, Aug. 23, 1972, at 4. See two occasions in the Senate and then also, Interagency Classification Review Mr. STENNIS. Mr. PI'esident, I yield the Senator from New York such time again on the conference report, on all of Comm., Progress Report (l\Iar. 31, 1973). the very arguments which we hear now 112 N.Y. Times, supra note 107; Ex. Order as he may require. 11652, supra note 105, § 2. Mr. JAVITS. Mr. President, I would made, and which were made then and 113 N.Y. Times, id. at col. 5. like to be notified when I have consumed yet the Senate voted to affirm the con­ m 37 Fed. Reg. 10053 (May 19, 1972); Wash. 10 minutes. ference report 75 to 20. The Senate acted Post, Dec. 14, 1972, at H 4, cols. 4-5. The PRESIDING OFFICER. The Sen­ then 75 to 20 in the teeth of the Presi­ llG Environmental Protection Agency v. dent's threat to veto. Mink, 409 U.S. 73 (1973), interpreting the ator from New York will be notified after Freedom of Information Act of 1966. 10 minutes. That is what he then told the min­ 116 Id., concurring opinion of Stewart, J., Mr.•JAVITS. Mr. President, I thank ority leader of the House of Representa­ at 736. my colleague from Mississippi for the t.ives. Notwithstanding this, the House of m N.Y. Times Co. v. United States, supra time. I also thank him for his unparal­ Representatives passed it by a vote of note 63. leled patriotism which induced him, as almost 2 to 1 and the Senate passed it .'" See concurring opinions respectively of the chairman of the Senate Armed Serv­ by a margin of over 3 to 1. Stewart, White, and Marshall, J. J., and ices Committee, to espouse this measure. Now why, Mr. President? Why? dissenting opinions of Chief Justice Burger, Congress passed it because its Mem­ Harlan, J., and Blackmun, J., Id. I know of no single influence which has 110 See concurring opinions of White, J., id,., had more to do with convincing the Sen­ bers considered it, as I believe we must at 733; Marshall, J., id., at 745; dissenting ate and the House of the rightness of consider it today, in the light of its opinion of Burger, C. J., id., at 752. this course than his espousal of it. There terms. "018 U.S.C. 793, which prohibits the "com­ is nothing in the world that is more con­ We have had a lot of conversation munlcatlon" of national defense information clusive to a lawyer than what the law­ today, which is interesting and highly to a person not entitled to It; 18 U.S.C. 794 yers cali admissions "against interest", rhetorical, but does not go to the terms (b), (1948) which prohibits the "communi­ of the bill. At long last, Congress is det­ cation" or "publication" of the disposition of and in a scnse that is exactly what has the armed forces in time of war; 18 U.S.C. happened in the case of Senator Stennis, ermined to recapture for ourselves, the 797, (1948) which prohibits the transfer or for the Armed Services Committee is representatives of the people at the state "pUblication" of photos of defense Installa­ looked upon as a citadel of "hawkish­ level in the Senate and as the House tions, and 18 U.S.C. 798, (1948), which pro­ ness", although all of us in the Senate did on the local level, the awesome power hibits the transfer of "publication" of cryp­ know the irreproachable jUdiciousness of to make war. tography or communication of Intelligence The first point I should like to make information. Senator STENNIS is his capacity as Armed Services Chairman, as in his other is, let us not confuse this with foreign Other limited provisions are found in other policy. titles of the U.S. Code, e.g., 50 U.S.C. 783(b) capacities. (1950). See generally the concurring opinion Mr. President, I have heard with the Foreign policy does not mean war and of White, J., in New York Times v. United deepest feeling the views of my colleague war does liot mean foreign policy, unless states, id., at 736-739. from Missouri, and of my colleague from there is a breakdown or failure of for­ 121 See the Government's charges against Texas. I assure them, as allegedly the eign policy. Daniel Ellsberg and Anthony J. Russo, Jr., basic author of this measure, that there No one is impairing the President's accused of espionage, conspiracy, and Unau­ will be no shallow sense of jubilation authority to carry on the foreign policy thorized use of government Information for of the country. But we are affecting ma­ rele~.slng the Pentagon Papers. United States tonight.. There will be no handshaking, v. Anthony Joseph Russo, Jr. and Daniel Ells­ there WIll be no congratulations there terially his authority, in the name of berg, no. 9373-Cd-WMB, (C.D. CaI.); see the will be no champagne as in a partisan or foreign policy, to take the Nation into courts granting of defendant's motion for common occurrence political victory. \var. When we judge, by this measure cllsmissal, Wash. Post, May 12, 1973. at A-14, This is not that kind of an occasion. that an incident would become a war' cols. 4-6. This is the most somber and historic then we, and we alone, have the right t~ .,,, See Barenblatt v. Unit~d States. supra, decide that it shall go on into war or that note 104. b~iness before the American people, and WIth the war powers resolution's pas­ it shall stop. For, the Constitution lays "" New York Times v. United States, supra r~­ note 63, at 729. 730. sa:ge, after 200 years, at least something upon the Congress, unmistakably the 1'1 ld., at 728. WIll have been done about codifying the son.sibility of deciding whether' or not ,"; E,g., see declarflllon of purpose set forth implementation of the most awesome the state of our Nation should be changed In text of S. 440, 92d Cong.• 1st Sess. (1973). power in the possession of any sover­ from peace to war. § 2. eignty and giving the broad represcnta­ We accomplish that in this bill by de­ := E.g" see, the 1973 report of the Senate priving the President of authority to Subcommittee on Separation of Powers which tion of the people in the Congress a voice in it. This is critically important for we make that decision himself at the given boldly lays claim to "congressional suprem­ time when, according to the dictates of acy" in this and all other areas of publiC have just learned the hard less~n that polley on the basis of the "necessary and wars cannot be successfully fought ex­ experience and history, an incident be­ proper clause:' Report 0/ Subcomm. on Sep­ cept with the consent of the people and comes a war. aration 0/ Powers 0/ the Senate Comm. on '\\ith their support. That is the essence The President cannot under the Con­ t~,e Judiciary, 93d Cong., 1st Sess" Congres­ of our society. stitution control us as to war. by his slOnal Oversight 0t Executil'e .4greements at power of veto. In that case, Congress 5,6,9(1973). . , The Vietnam war litemlly brought this would not have any real say. because lc'7 E.g., see question of Senator En-in, Hear­ country to its knees because, without go­ he would only need one-third plus one 1.ng 1m S. 1125, supra note 68, at 211, 212; ing into the technicalities of what Con­ of either House to exercise his will declaration ot CongreSSional authority ex­ gress might or might not have done to against the majority of Congress and pressed iII. Amendment no. 343. by Senator assert its authority, the fact is that on the people it represents. 36188 CONGRESSIONAL RECORD-SENATE November 7, 1973 In this bill, we have embodied a meth­ require. It requires that the president 60 days can be curtailed by concurrent odology-the very word I have \:sed, and shall submit to the Speaker of the House resolution of the House and the Senate. the very word that Senator EAGLETON, and the President pro tempOre of the That, in my jUdgment, will stand up Senator STENNIS, Senator TAFT, and Senate a report in writing, within 48 constitutionally, for this reason: It is an nany other Senators have used-a hours of any unusual, significant, peace­ element of the grant of authority which methodology by which Concress could, time deployment, spelling out the cir­ this bill gives. I believe that the scheme if it wished, insert upon its concurrence cumstances. of the bill, the methodology of the bill, in the awesome decision of war. The PRESIDING OFFICER (Mr. hangs together expertly on that score. If we analyze the arguments against BARTLETT). The 10 minutes of the Mr. EAGLETON. Let me more nar­ this measure, they are, that to assure the Senato: from New York have expired. rowly pose my question. President the flexibility to carryon the Mr. JAVITS. Mr. President, may I be I am not talking about the alert or the foreign policy of the country, according notified when I have used 5 more min­ movement of the 6th Fleet in the Med­ to the arguments of those who are in utes? iterranean or the enhancement of the Senator TOWER'S school, we must also The PRESIDING OFFICER. Certainly. 6th Fleet by additional aircraft carriers. give him the power to make war on his Mr. JAVITS. Mr. President, he is re­ Under this bill, the way it is presently own. quired to state "the constitutional and written, the President would have the vVesay"No." legislative authority under which such predated authority to commit American That is what this is all about. introduction took place." ground forces and air forces to the ter­ We say "No." That leaves him all the necessary flex­ ritory of Egypt, Syria, or Israel, or all We say there is a world of difference, ibility. three, for up to 60 days, with a require­ a chasm, between carrying on the foreign Mr. President, this brings me to the ment that he send written notification policy and plunging the Nation into war. part of our letter-Senator MUSKIE'S and thereof within 48 hours. If Mr. Brezhnev has the authority to mine-to which Senator EAGLETON re­ Mr. JAVITS. The answer to that is do that, we disapprove of it. We disap­ ferred. He did not read far enough. "No," and I will tell the Senator why I prove of the system under which Mr. We said that nothing in the war powers say the answer to that is "No." Erezhnev operates. Indeed, if that system resolution could have hampered the Pres­ Whatever may be the President's con­ can have anything said about it, that is ident in his handling of the recent Middle stitutional authority, he has it, whatever exactly what is threatening the world East crisis. He placed our forces on alert it may be. We give him no new grant of and what is threatening the detente. as he thought desirable and advisable. constitutional authority. Hence, in terms We reject that. The House ha3 rejected But, Mr. President, if we read on in that of the constitutional authority to put our it and we should reject it. paragraph it says as follows: forces into war, I adhere to the construc­ That is what is at stake here. It is important to note that during the tion of the Constitution which says he Senator EAGLETON'S arguments con­ recent crisis at no point were United States may only do that where our territory or found me and sadden me. They sadden Armed Forces engaged in hostilities or in our forces are in danger. me because he had a big hand in this situations where imminent involvement in As a matter of fact, the· writers of the hostilities was clearly indicated by the cir­ Constitution said in the event of "sUd­ bill and was really one of its most elo­ cumstances. The actions taken by the Pres­ quent advocates. ident related solely to the state of readiness den attack." That is quite a separate Specifically, those significant provi­ of U.S. Armed Forces and did not involve question, in my judgment, 'and it has sions remaining in this bill are essentially the provisions of this bill. nothing to do with this bill, which his contribution. neither makes nor unmakes that situa­ The imperfection which is seen in the Of course, Mr. President, if he had tion. That is the important point about bill by him and, as I say it saddens me introduced our forces further than he reading the bill. In my judgment, before and confounds me, is that we give the did, in terms of the imminent danger of the President put forces into those areas, President powers he does not have. hostilities or in terms of the actual in­ he should come to Congress for its au­ On the contrary, we have made crystal volvement in hostilities, the bill would thority, by resolution. clear in section 8(d) that we do not have and should have become operative. Mr. EAGLETON. Where does it say alter the constitutional authority of the That is exactly the purpose and intention that in the bill? Congress or the President. We say it in of the bill and exactly the way it reads. Mr. JAVITS. It does not have to. It just so many words. Mr. EAGLETON. Mr. President, will says so by virtue of the fact that the con­ Beyond that, Mr. President, I must say the Senator yield? stitutional authority of the President and that the President, after all, is the fel­ Mr. JAVITS. I yield. of Congress remain completely unim­ low whose ox is being gored. He is the Mr. EAGLETON. I thank the Senator paired. And also by virtue of the fact that one who is seeking to protect what he for yielding. that has been the historical practice dur­ considers to be his prerogatives in re­ I have reread the paragraph men­ ing times when the President worked spect of the war power. tioned. May I ask a question of the closely and successfully with the Con­ With respect to this bill, the President Senator from New York? gress in this area. of the United states says in his veto Once this bill becomes law-perhaps We have taken the precaution of recit­ message: within an hour-would the President to­ ing in section 2(c), which was hotly de­ night have authority to deploy American ... it would seriously undermine this Na­ bated in conference, what we consider tion's ability to act decisively and convinc­ military personnel to either Egypt, Syria, to be a declaration. We could not go the ingly in times of international crisis. or Israel for 60 days? distance that the Senate bill went. If we Mr. JAVITS. In the event that the had tried to do that, we would not be By this he means his power is very situation remains as is in Egypt, Syria, here today; we probably would have no reduced, and drastically so. and Israel, I would say that he would bill. It is far more important in terms So, the man whose ox is gored and then be putting them into imminent of the future of our Nation than to be whose power is being affected sees the danger of hostilities or into hostilities sticklers on that point. situation exactly 180 degrees opposite and that the bill would apply. If he had In section 2(c) we have declared what from the way my colleague from Mis­ some different interpretation, it would we understand to be the constitutional souri does. It seems to me that that is be up to us to decide whether we agreed authority of the Commander in Chief, the best evidence as to whether we are with him or not, because the time, the and it means in this respect putting our granted additional authol'ity to him. 60-day limitation, begins to run when forces in imminent danger of hostilities The President is left with his true, he introduces the forces, not when he or in the hostilities, only exercised pur­ preexisting constitutional authority as says they are in imminent danger of suant, to a declaration of war, specific Commander in Chief to deploy the forces hostilities. Short of that-that is, to do statutory authorization, or a national of the United States, assuming he can what he did, which is to move around the emergency created by attack upon the get the Congress to raise the forces and 6th Fleet or whatever else in the way of United states, its territories, its posses­ to finance them. We do impose a re­ alert-that would not come within the sions, or its Armed Forces. porting requirement in the case of sig­ 60-day provision of the bill. One of the closely considered questions nificant peacetime deployments. It is One other point, so long as we are before the conference was over the omis­ not just a little piece of paper that we dealing with the factual situation. The sion of the rescue of individual American Noventber 7, 19'7'3 CONGRESSIONAL RECORD-SENATE 36189 citizens. Our decision was that we from Missouri that this histOlic recap­ imminent involvement in hostilities is felt that the recital of it was undesirable ture by Congress of its powers is worth clearly indicated by the circumstances" and unnecessary, in that it was so much running down the drain simply because according to the finding of Congress, a question of degree as to when an inci­ we have been unable to get that par­ then the 60-day prohibition, or shorter dent such as that could be converted ticular statutory definition which the period, applies. What the Senator inter­ into a conflagration that we would rather Senator, in my jUdgment, has permitted prets it to mean is wrong. not state it. If a President felt, under to completely obscure what should be our Mr. EAGLETON. Mr. President, will given circumstances, that that was his jUdgment. the Senator yield further? constitutional authority under the terms The PRESIDING OFFICER. The time Mr. TOWER. I yield. of this bill, we could contest it or not in of the Senator has expired. Mr. EAGLETON. I have read the sen­ the particular circumstance. Other than Mr. JAVITS. One more minute. tence, which I think is a clear sentence. that, we did declare our finding. It is not In this total matter, so much is being I commend the Senator for his clarity in as strong in this respect as the Senate accomplished that to run this bill down this joint letter. bill, which actually specified those as the drain because of that definition The PRESIDING OFFICER. The Sen­ the President'semergency powers and no would have been, it seems to me, a colos­ ator's additional time has expired. more. sal historic mistake, one which the House Mr. EAGLETON. Mr. President, will The PRESIDING OFFICER. The 5 in its vote today did not make, notwith­ the Senator yield to me for 2 minutes? minutes of the Senator have expired. standing all predictions to the contrary, Mr. TOWER. I yield. Mr. JAVITS. Mr. President, will the and which I hope the Senate will not Mr. EAGLETON. I will try to propound Senator from Mississippi yield me 2 ad­ make. the question this way. When this bill be­ ditional minutes? Mr. EAGLETON. Mr. President, will comes law, and assume that there is some Mr. STENNIS. I yield the Senator 5 the Senator yield? aggressive action with respect to the additional minutes. The PRESIDING OFFICER. The Sen­ Egyptian Third Army on the east side Mr, JAVITS. It seemed to us in the ator's time has expired. of the cana: in which they try to break conference-not just to me, but to all the Mr. TOWER. I yield 1 minute. out of their encirclement, and there is Senate conferees-,-that that was not giv­ The PRESIDING OFFICER. The Sen­ resistance to that maneuver by the Is­ ing away the essence of the Senate bill. ator is :;;'ecognized for 1 additional min­ raelis, and the Israelis say they would Therefore we compromised with the ute. very much like to have American ground House on this question. I think that our Mr. EAGLETON. May I have 2 min­ forces to assist them, what would the judgment now has been vindicated. utes? It will take 1 minute to propound President have to do before he could Mr. EAGLETON. Mr. President, will the question. send American ground forces? the Senator yield? If necessary, I will Mr. TOWER. I yield. Mr. JAVITS. In my opinion he is ask the Senator from Texas to yield me Mr. EAGLETON. I wish to say paren­ obliged to come to Congress for a spe­ some time. thetically that I do not view this as a cific resolution. Mr. JAVITS. We have 5 minutes. historic recapture; on the contrary I view Mr. EAGLETON. But what does this Mr. EAGLETON. The Senator from it as a historic surrender. law require him to do? New York referred to section 2(c), and I ask the Senator from New York this Mr. JAVITS. As far as this law is con­ he quoted from it, and he quoted ac­ questicll1. I address the Senator's atten­ cerned, the President will make his cal­ curately. That section Is called "Purpose tion to page 3 of his "Dear Colleague" culations and take his chances that the and Policy." In legislation, the interpre­ letter, signed by 3enators JAVI1'S and 60-day period applies. We have the find­ tation of the purpose and policy section MUSKIE, in the middle of page 3, refer­ ing as to whether the terms of this bill is nonoperative. These are the so-called ring to the Middle East situation: are being met, and that is as it should be. precatory words. Not only do we have to The bill would have required the Presi­ Mr. EAGLETON. The Senator said rely on the general precept of legislative dent only to report to the Congress within that the President has to take his interpretation, but also, in the managers' 4'3 hours in writing with respect to the de­ chances. Does the Senator think this is report on the bill, I point out to the Sen­ ployment of U.S. Armed Forces In foreign a game with the President? ator from New York that they went to territory. air space and waters. Mr. JAVITS. I think no such thing. But great pains to point out that the lan­ Now, I am an average reader of the the Senator from Missouri does, and I guage of section 2(c) was non-binding. English language, and I take that to will tell him why. Right now, if the Sen­ It is merely pious chit-chat. On page 8 mean that under this bill the President ate fails to override this veto, we will of the managers' report, they say: would have 48 hours to notify Congress leave him the very illimitably claimed SUbsequent sections of the joint resolU­ in writing when he deployed Armed power we are trying to curb. So, by the tion are not dependent upon the language of Forces to Egypt, Syria, and Israel. Is that idealism the Senator thinks he is obeying, this subsection, as was the case with 1\ simi­ correct? he is running the one chance down the lar provision of the Senate bill. Mr. JAVITS. The Senator is 100 per­ drain by which we do something to I pointedly ask the Senator from New cent wrong. negate that claim to imperial power. York if that Is not the most telling sen­ The PRESIDING OFFICER. The time Mr. EAGLETON. If this becomes law tence in this whole legislative history. of the Senator has expired. we have given a predated declaration of The senate bill set UP those three ex­ Mr. TOWER. I yield 2 additional min­ war to the President and any other Pres­ ceptions to the normal rule that Congress utes. ident of the United States, courtesy of declares war: attack on the United Mr. JAVITS. I make this statement to the U.S. Congress. states, attack on forces legally deployed the Senate as one of the reasons for The PRESIDING OFFICER. The time abroad and rescue. In the conference re­ overriding the President. The Senator is of the Senator has expired. port, they departed from that procedure, 100 percent wrong for this reason. In Mr. EAGLETON. Mr. President, will gave open-ended authority to the Presi­ section 4(a) (3) the bill provides: the Senator from Texas yield to me for dent, and made the section 2(c) lan­ In the absence of a declaration of war, 5 minutes? in any case In which the United States Anned Mr. TOWER. I yield 3 minutes to the guage non-bhlding on the rest of the bill. Forces are introduced- Senator. We have other speakers and I Is that not the case? • • am running out of time. Mr. JAVITS. I do not quite agree with (3) in numbers which substantially en­ Mr. EAGLETON. I thank the Senator. the Senator that that is the case, because large United States Armed Forces eqUipped Mr. President, this is not a question of section 2(c) is not a whereas clause. It for combat already located in a foreign na­ the President taking his chances. The is the essential element of the bill, that tion; chances he will be taking are our chances. particular recital and that finding of the President shall submit Within 48 hours our country's chances, chances with life fact. in'l\Tlting. and death. But I will say this to the Senator: We That is all we said in our letter that What the President should do, in the certainly did not get the provisions of he was required to do. mind of the senator from New York, is the Senate bill on thiS subject. I differ But if that deployment becomes a de­ to come to Congress. What does the bill deeply. decidedly. and as profoundly as ployment under section 4(a) (1), to wit: provide? I served at one time h1 tbe Mis­ any human being can with the Senator "lnt.o hostilities or into situations where souri Legislature. We had a member of 36190 CONGRESSIONAL RECORD - SENATE November 7, 1973 the house there at one time get up and this, affecting the Constitution of the Mr. TOWER. Mr. President, I yield the say, "I see what the bill say, but what do United States, there is no parallel in his­ Senator 2 minutes. ' it do?" What does this bill do? tory for such a procedure. There is no Mr. THURMOND. If not, could a Section 2(c) is nonoperative and non­ precedent in the history of this Govern­ handful of people-the leadership-de­ enforceable, not only by its policy section ment for such a procedure. cide whether Congress would be record­ tut by the very interpretation in the Mr. President, fmothermore, from a ed? Why was Congress not required to managers' report which was signed by practical standpoint, I do not think this take this positive stand? In my judg­ the chief sponsors of the legislation, the is a wise resolution. It disturbs me. Would ment, this is a serious defect in the bill. Benator from Maine (Mr. MUSKIE) and it not seriously undermine this Nation's I think the bill is unconstitutional; I the Senator from New York (Mr. JAVITS). ability to act decisively and convincing­ think it is impractical; I think, further­ They said in that report very clearly ly in times of international crisis? The more, it is bad psychologically at this what section 2(c) did not do. It is here President is going to feel handicapped at time in history, because right now we are on page 8 of the manager's report. every turn as to what he can do and taking a series of steps in the Middle The chance the Senator from New what he cannot do, whether he can re­ East that could affect the entire world. York is willing to have the President take spond or caunot respond. Is Congress at this time going to put a is the chance to deploy our forces to a We are now living in an age of inter­ limitation on the President of the United hostile area. And the President, under continental ballistic missiles which can States that might be construed by the this measure, could deploy those troops in be sent to the nations that are the chief nations of the world as handicapping Israel, Syria, Egypt, Chile, Bangladesh, adversaries in the world, to the Soviet him, not showing faith in him, and not or wherever he wanted, tomorrow. There Union, in 30 minutes, and they can send having confidence in him, so as to weak­ is a 60-daY period but the troops are them here in the same time. We are now en his hand in carrying out his constitu­ there. They are deployed, being shot at, living in an age of supersonic planes that tional duties in foreign affairs? dying, and the flag is committed-ex post fly several times the speed of sound. Mr. HUMPHREY. Mr. President, will facto. The President of the United States to­ the distinguished Senator from Missis­ That is not what the Constitution of day needs flexibility. When he needs to sippi yield time to me? the United States envisaged when we act, he needs to act, and he must act Mr. STENNIS. Mr. President, I yield were given the authority to declare war. quickly, or this Nation may not survive. 5 minutes to the distinguished Senator We were to decide ab initio, at the outset, Mr. President, I just want to say that from Minnesota. and not post facto. if this resolution had been in effect, many Mr. HUMPHREY. Mr. President, I . That is the key difference in the Sen­ actions in the past that have been very simply wish to say a word about the final ate bill as it went to conference. It would worthwhile would have been hampered comments of the distinguished Senator not have permitted Richard Nixon to or hindered altogether. The Berlin crisis of 1961, the Cuban missile crisis of 1962, from South Carolina (Mr. THURMOND). deploy troops at his whim. The measure One of the reasons why I support the that came out of committee does permit the Congo rescue operation of 1964, the War Powers Act, one of the reasons why it. Jordanian crisis of 1970 are a few of those; and there are others that could I shall vote to override the President's This is no historic moment of circum­ be mentioned. veto, is not that I think the bill will crip­ scribing the President of the United Would not this resolution undercut the ple the President in his role as Comman­ States insofar as warmaking is concerned. ability of the United States to act as an der in Chief and in his role as chief This is an historic tragedy. It gives to effective influence for peace? We know spokesman of the Nation in matters of the President and all of his successors that our country is the only country in foreign policy, but because I believe that in futuro, a predated 60-day unilateral the world today that really is standing the act will send a signal to the Soviet warmaking authority. All the words spo­ for world peace and has the ability to Union and to anyone else that we in the ken here today, circuitous or not, cannot maintain it. Congress of the United States are pre­ change what this law does, and what it The very existence of a deadline can pared, as the duly elected representatives does is wrong. lead to an escalation of hostilities in or­ of the American people from the sov­ The PRESIDING OFFICER. Who der to achieve certain objectives before ereign States of the Union, to share in yields time? the 60 days expire. Suppose, for instance, the responsibility for national security Mr. THURMOND. Mr. President, will Guam, a territory of the United States, decisions. the Senator yield to me for 5 minutes? were attacked and the President sent It is my intention to introduce later in Mr. TOWER. I yield 5 minutes to the forces there, and the forces were fighting the Senate a resolution that will indi­ Senator from South Carolina. to defend that area. And suppose he cate unmistakablY that we are prepared Mr. THURMOND. Mr. President, I rise asked for 30 days more and got them to cooperate with the President of the in support of the veto of the President of and he was about to wind up the hostili­ United States in matters of national se­ the United States of House Joint Resolu­ ties, but needed 3 days more. Under this curity in times of domestic crises such as tion 542. resolution he would have to stop, and we face now. I spoke up on that subject First, I would like to say that in my stop cold, when those 30 days were up. in the Democratic Caucus. opinion this resolution is unconstitu­ He might have gotten the 30-day ex­ I am not partisan as to national secur­ tional. It would automatically cut off the tension, but if he did, he would have to ity. I have never been and never will be. constitutional authority of the President stop cold Without the vote of a single But this particular piece·of legislation after 60 days unless Congress extended Member of the Congress. That is a weak­ simply says that we are prepared to it. For 200 years the President has prop­ ness in the bill. Why is the Congress not share our part of the burden. Have we erly exercised these authorities under the required to take a stand? The President not learned something throughout the Constitution. has to take a stand. If they say the Pres­ years? This bill is not directed atPresi" In the second place, it eliminates cer­ ident has to act in 60 days or 90 days, dent Nixon. I will say for President Nixon tain authorities merely by the passage of then why does this resolution not re­ that he got us out of the war; he has a concurrent resolution. Now, what is a quire Congress to take a position? not put us into one. The bill is directed concurrent resolution? A concurrent The most serious action a President at what I consider to be a long-term resolution is one that merely takes the can take is to commit troops. The Con­ formUlation and a long.,term increase of sense of the bodies. How can a concurrent gress says it desires to share that respon­ Presidential warmakingpowers that has resolution have the force and effect of sibility and yet Congress, under this come upon us, almost step by step, with­ law? How could the President of the measure, is not willing to and does not out our even knowing it was happening. United States be denied the right to veto require its Members to take a public Yet there is· within this War Powers a resolution that would carry such tre­ stand. Many might do it, but they are not Act some of the very sensible logic of mendous power as this concurrent reso­ required to do it under the bill; the Dwight Eisenhower. I remind Senators lution would apparently do? whole matter expires after a certain that. I was a Member of this body when A joint resolution does have the force time. Could one Member of Congress, for President Eisenhower sent a message or and effect of law, and the President has instance, force a vote before the 60 days a resolution to Congress. He saig. the chance to veto it, but for the Con­ are up? If not, could the leadership? I may bave to commit troops to tbe Middle gress, through a concurrent resolution, to The PRESIDING OFFICER. The Sen­ East, and I want Congress to sbare in the act in a matter on such a vast scale as ator's time has expired. responsibUity. November 7, 19'73 CONGRESSIONAL RECORD - SENATE 36191 There was a President before Dwight intend to share in the responsibility of gress and of a great majority of the Eisenhower by the name of Harry Tru­ the President. American public. On the other hand, the man, whom I loved. He committed troops, I am sure that the people of the So­ very existence of the kind of legislation and 6 months later his popularity, believe viet Union must be rejoicing in the the President has vetoed could encourage it or not, was lower than that of the pres­ streets of Moscow if they feel that Con­ Presidential adventurism by seeming to ent occupant of the White House is now. gress is going to insist on sharing the sanctify any Presidential commitment of This piece of legislation is a signal responsibility with the President for the forces during the 60-day period before to the world that Congress and the Presi­ formulation and implementation of for­ congressional action is required to sanc­ dent will work together to insure our eign policy. tion their continued deployment. Thus ,national security. It is not designed to Such action can only result in ulti­ the resolution's practical effect could be tie the President's hands. It is designed, mate paralysis, inftexibility, and a com­ to destroy the political institutions that if you please, to strengthen the national plete disadvantage vis-a-vis the Soviets in the past has been our greatest guar­ security and resolve of the Nation. in terms of the conduct of diplomacy. antee of the prudent use of Presidential There are, of course, some limitations I would suggest that that is hardly powers. we have put in the bill simply to make a firm signal to the SOViets, because they Finally, I am persuaded by the care­ the burden of sharing real. There is in understand the history of our past few fully documented arguments made in the legislatoD the power, if Congress months and years in terms of our par­ earlier debate by the Senator from Ari­ wishes to, to terminate hostilities. We ticipation in the formulation and iIn­ zona (Mr. GOLDWATER) that the Presi­ have always, in a sense, had that power plementation of foreign policy very well dent has inherent constitutional author­ if we wanted to use the appropriations indeed. ity as Commander in Chief that is far process; but that was slow and uncer­ Mr. President, on my own time, I yield broader than that described in the War tain. I am not an expert in constiutional 5 minutes to the Senator from New York. Powers Resolution. Section 2(c) of the law, but I served on the National Security The PRESIDING OFFICER. The Sen­ resolution states that the President may: Council. No other Member of this bodY ator from New York is recognized. has. I took that assignment seriously. Mr. BUCKLEY. Mr. President, I Introduce United states Armed Forces in­ There is not a man who ever served as thank the Senator from Texas for yield­ to hostilities or into situations where im­ ing. minent involvement in hostlllties is clearly president who, when the chips were indicated by the circumstances .... only down, did not need Congress. Mr. President, I share with every pursuant to (1) a declaration of war, (2) Let me tell the Senate that the world Member of this bodY a deep concern over specific statutory authorization, or, (3) a needs to know that the duly elected a proper definition of the circumstances national emergency created by attack upon representatives of the American people under which a President of the United the United States, its territories or posses­ are capable of making tough decisions States may commit American forces to sions, or its armed forces." and will not leave it up to one man. hostilities 01' to situations which might This incredibly narrow definition belies The PRESIDING OFFICER. The time give lise to hostilities. I do not believe commonsense and more than 180 years of the Senator has expired. that the war process resolution is the of experience under our Constitution. Its Mr.. STENNIS. Mr. President, I yield 1 answer nor, I hasten to add, do I have literal application would have precluded additional minute to the Senator from an alternative proposal to make. any number of deployments of forces Minnesota. My own study of our own historical ex­ which in the past have helped prevent The PRESIDING OFFICER. The Sen­ perience, and discussions with historians, suggests that it may be impossible to leg­ a crisis from being escalated into broad ator from Minnesota is recognized for 1 scale hostilities. We could not have re­ additional minute. islate a net formulation that can an­ ticipate all the situations that could rise acted to the invasion of South Korea as Mr. HUMPHREY. Mr. President, I am we did, nor mobilized our 6th Fleet in prepared to work with the President on in the future when the legitimate secu­ rity interests of the American people may the eastern Mediterranean at the time matters relating to the security of this of the 6-day war in 1967, nor landed our Nation and on other matters, However, I require a show of strength. Furthermore, I fear that any legislation to delineate troops in Lebanon in the early 1960's, am also prepared to say that this is not nor talcen any of a number of other ac­ an empire. This is not a kingdom. We do the President's power to deploy our mili­ tary forces that is less than perfect may, tions that had the effect of securing not have an imperial domain. We have a American lives, property, and interest republic. And the way to preserve a re­ in some future crisis, prove dangerously public is to make it possible for the inhibiting. in aI'eas far beyond our territorial wa­ representatives of this republic to act Any President will be most reluctant ters and possessions. responsibly. And the way to do that is to commit U.S. forces to combat without The fact that the war powers resolu­ to put the responsibility right here. knowing that his actions will have the tion finds it necessary to fill this alleged Let us shape up like men and women support of a substantial majority of the constitutional shortcoming by legislating when the chips are down and not say Congress and of the American people. standbY authority to involve American that we are going to leave it to the If a President were to act without such forces in hostilities anywhere in the support, he would be subject to imme­ globe merely accentuates the error of President. diate congressional reprisals that could When the President does something construction on which the resolution is take the form either of impeachment or based; and in the process, it has made we do not like, we say that he is acting of a termination of funding to support without our consent or that he did not the operations. These are weapons that it possible for future Presidents to act tell us the truth. have alwa~'s been at the disposal of the less responsibly than they have in the This resolution informs the Congress, Congress. These congressional powers past when committing Americans to bat­ informs the country, and informs the have not been invoked before this year tle or to conditions where they might be­ world that the Congress and the Presi­ because past Presidents have in fact had come engaged in battle. dent will share the responsibility. the support of the country when they The effect of the resolution is to insu­ The PRESIDING OFFICER. The time have involved our forces in hostilities late the President from the kind of po­ of the Senator has expired. without a formal declaration of war. This litical restraints and concerns and to say Mr. STENNIS. Mr. President, to be year the Congress did close down or dI­ that no American soldier, sailor, or air­ fair, I think that I should yield 3 minutes rect military involvement in Indochina man will become committed under con­ to the Senator from Texas. by shutting down the flow of funds that ditions that may become pro~-ocative. The PRESIDING OFFICER. The Sen­ would conduct these operations. Mr. President, under the circumstances ator from Texas is recognized for 3 It should be noted that the existence I urge my colleagues to join me in voting minutes. of war powers legislation would not have to sustain the President's veto. Mr. TOWER. Mr. President, I would precluded our involvement in Vietnam. Mr. STENNIS. Mr. President, I yield The Tonkin joint resolution in fact 4 minutes to tIle Senator from Wyoming. simply say in response to· my friend, the sanctioned that involvement. Moreover, distinguished Senator from MiImesota, The PRESIDING OFFICER. The Sen­ although the war ultimately proved ator from W~ioming is recognized for 4 that this is a very novel idea he has of highly controversial and unpopular, dur­ minutes. serving notice to the Soviets that Con­ ing the first few years it had the over­ Mr. McGEE. Mr. President, I want to grel,ls ic; sending' them a simal that we whelming support of both Houses of Con- announce at this tiIne, with very severe 36192 CONGRESSIONAL RECORD-SENATE November 7,1973 reservations and reluctance, that I am that process is going to somehow have to today, many students of government feel going to support the override of the Pres­ include increasing areas of responsibil­ that we have long since passed the time ident's veto. When I say reluctance, I ity in the executive branch. I do not see when we can atIord to declare war with­ mean I have reservations that run more any reasonable alternatives to that hard out running the risk of nuclear holo­ deeply than 4 minutes will permit me fact of life. caust. Therefore, one of the issues raised to explain. But, knowing what we know now, we centers around the phenomena of unde­ I simply think that with this resolu­ surely have enough wisdom to insure and clared wars and the question regarding tion as we have debated and debated surround that increasing power in the the role of the executive and legislative the question of what our decisionmaldng executive branch, to protect the pOpu­ branches of Government in this critical structure really ought to be in a time of lar input of the legislative responsibility, area of policy responsibility. I do not be­ crisis, we have still ducked the gut issue. in that process. lieve we have yet found a solution to that And the gut issue is what do we have I wish I had a ready answer. I do not problem, although we are heading in to do with our Constitution to update it know. But surely we have the capacity to that direction with the War Powers Act. to now, 1973, to meet the real crisis of find out what those answers may be and Hopefully, with the legislation I in­ tomorrow, not yesterday. what they ought to include. So this, to tend to introduce, we can arrive at the Let us face the facts. Our Founding me, is a stopgap effort here today­ answer to the question of what a nation Fathers confronted a simple world at a purely stopgap. I hope we have the wis­ like the United States, with all its re­ time when nations could risk a war as dom to proceed from here, to act in a sponsibilities, should have in its mech­ an instrument of national policy. far more enduring way than I am afraid anisms for policymaking that would I would think we would be best advised this legislation in itself will achieve. be realistic in the world as it is today, if we were to select, as I am proposing, As I say, Mr. President, although I and as it will be in the future. a high level, prestigious committee, com­ will vote to support the override of the Rather than attempting to patch up mission, or whatever you want to call President's veto of the War Powers Act, our current procedures, we really shOUld it, that would start with the Constitu­ I do so reluctantly. be inquiring into what the Constitution tion-that is sacrosanct, I know, in the Although, as I have noted in the past, should say In 1973. Our present attempt minds of many, but this is where the I believe this proposal comes closer to at remedying a constitutional structure trouble began in the war declaration anything else we have done in the For­ put together nearly 200 years ago is not process. The Founding Fathers did not eign Relations Committee to come to enough. Indeed, it could be costly by de­ envisage a day when you would fight grips with one facet of governmental de­ laying a long-overdue reexamination of wars without declaring them, and prob­ cisionmaking realistically and construc­ our pOlicymaking mechanisms. ably would have to, because of the poten­ tively, it still does not go far enough. We have put off far too long the proc­ tial for a nuclear holocaust that would In sounding this warning again, I want ess of updating our Constitution and uP­ confront a nation making such a de­ to emphasize that I will be introducing dating the mechanisms of a representa­ cision. legislation which would call upon the tive republic in the field of· foreign Likewise, we have to be mindful of the President and the Congress to commis­ policy. I am not saying that I have the structure of this body. It is cumbersome. sion a high-level panel comprised of our answers to these questions. I do not. Yet, It was not geared for split-second de­ best minds of diverse background and it may well be that a commission would cisionmaking, for crisis decisionmaking, philosophy to undertake an intensive and conclude that the present mechanisms for coping with a world of monolithic in-depth stUdy of the decisionmaking are satisfactory and do not need to be governments, or.with our own democratic processes of our Government as they re­ changed or altered in any way. I would processes that slow us down and encum­ late to the formulation of foreign policy, be the first to accept that conclusion. ber the clarity of the decisionmaklng national commitments, and the war On the other hand, if· there is even the process at all times. powers. slightest possibility that we need to re­ I do not kn'ilW what the answer to that My proposal would not'limit the scope fine or change our decisionmaking proc­ Is going to be, but I have come through of the proposed Commission's study to esses in order to enable us to function these 2% years of debate on this issue just the war-powers issue. The study more effectively in the world as it is to­ convinced that we are still trying to pre­ would also encompass the dedsionmak­ day, we owe it to -ourselves and the Na­ vent another war in Vietnam, just as ing processes involved in the formula­ tion to pursue an in-depth study utiliz­ we spent all of my early days in the tion of our foreign policy and national ing the best minds we have in the coun­ Thirties trying to prevent another war commitments. This is what I feel we try for such an endeavor. with Bill and Kaiser back in 1917. We shOUld really be addressing ourselves to My proposal would provide that a high­ always try to correct a system that some­ right now-the updating of all our mech­ level panel be commissioned to make the how we blame for what we did, instead anisms for responsible policymaking in kind of searching inquiry, hopefUlly, as of looking ahead and trying to avoid the our system of representative govern­ to what a great nation conceived in pitfalls that we may have to face in the ment. We should do this armed with all 1973-not 1787-should do with the awe­ future. of the wisest judgments this country can some power and responsibility it has in So, Mr. President, I shall cast my vote command. the world today, and what kind of 111 support of overturning the veto de­ During the debate on this bill, much mechanism may be written into a theo­ cision of the President, but I do that was said regarding the intent of our retical constitution for that kind of new with the utmost of reluctance, because Founding Fathers as they sat down to republic. It would require a difficult un­ I believe we are still ducking the real draft the Constitution in Philadelphia dertaking, for what I am suggesting Is question here. I am confident, however, in 1787-their intent in framing a work­ that this panel operate in nearly a total with the decision made on the House able relationship between the executive vacuum, completely ignoring .what we side and with the overwhelming decision and legislative branches of Government did 200 years ago and the evolution of in this body, it is still better that we move in the area of war pOwers. our traditions throughout the course of a little bit in the right direction, and I However, the world our Founding our history as a nation. think that the resolution of the Senator Fathers confronted as they drafted the Once a conclusion was reached by the from New York does honestly strive to Constitution was not the world that panel, it would then be up to Congress move in that direction. I am just afraid Members of this body are compelled to to accept or reject its findings, or to im­ we are going to let slip away from us the face in 1973 and succeeding years. plement or supplement them. If the find­ shock value of our present situation in The Founding Fathers prOVided a spe­ ings were accepted, and If theyrecom­ the world, which ought to require us to cific mechanism for declaring war­ mend constitutional changes, then it take a far more decisive step, and make article 1, section 8-leaving the initia­ would be up to the Congress to measure a far more fundamental decision in our tives of the events which preceded war the recommendations and determine constitut.ional structure. I think we ought clearly to the President. They provided how they could best be fitted into. our to restructure the amending process to that only the Congress finally could de­ Constitution and our tradition. bring us up to the world of 1973, 1983, and clare war. This procedure was framed in I am suremy proposal Will promulgate 1993, instead of waiting for another a period when nations dared to, and cries of outrage that somehow I am being debacle to remind us that we have not could afford to, considerdeclared wars as un-American for even suggesting such a caught up. And I hasten to add, I think an instrument of national policy. Yet process. However, I believe the Founding Novembel' 7, 1973 CONGRESSIONAL RECORD-SENATE 36193 Fathers would be. the last to say what in their Government, and that is where thing, to be sucked into a situation where they did in Philadelphia nearly 200 years our security is being eroded today. unilaterally, one man, whether Democrat ago was sacrosanct. Times have changed There is no security unless the people or Republican, can take this Nation into the relevance of that event. We have not and their Goven.ment understand each war without the advice and consent of yet honestly assessed if the times have other and respect each other. We are the Congress and, thereby. the American changed to the degree that we might also elected representatives of the American people? need to amend, in releyant ways, our people in the House of Representatives So that I feel there is no question that Constitution.. There is really noway of and the Senate, and they have a right to every Member of Congress is prompted answering that question; However, no look to us for the ability to make deci­ to vote on this particular issue by no one is really measuring the role of the sions. If we cannot make decisions, we other motive than to vote his conscience various branches of Government and ought to get out of here and save the and his best judgment. sorting out the respective roles in light taxpayers some money. I respect and honor those who feel of· the new events and new responsibili­ Mr. STENNIS. Mr. President, I yield differently, but I think those of us who ties that we did not seek, but neverthe­ 5 minutes to the Senator from lllinois. are supporting this bill feel very strongly less have, in trying to make it possible Mr. PERCY. Mr. President, first I about the fact that it is in the best in­ for our system to survive the impact of should like once again to extend the terests of the United States. change and demands of the modern gratitude of this body and of this Sen­ I feel also, Mr. President, that the ac­ world. ator to the distinguished chairman of our tion of the House of Representatives in We have continually put this modern­ Armed Services Committee (Mr. STEN­ overriding the veto of the war powers izing process off again and again, appar­ NIS) and the distinguished senior Sen­ resolution leaves the Senate now with a ently in the hope that we will come to ator from New York (Mr. JAVITS), who dramatic and historic opportunity to es­ grips with it once more when we have have provided, in a bipartisan, non­ tablish, in law, new definitions of Presi­ another clisis. But our experience with ideological sense, tremendous leadership dential and congressional responsibility this indUlgence should compel us to take in the authorship of this amendment for warmaking. positive action in establishing a mecha­ with which so many of us in the Senate This opportunity must be grasped, and nism that would prevent future crises, have been very proud to associate our­ it will be grasped by the Senate at 5: 15 or at least confront them in a more ef­ selves as cosponsors. this afternoon. Let this hour of debate fective manner, rather than addressing Second, I would like to indicate my culminate in a decision that there shall ourselves to crises of the past. feeling that we have had a test, now, be no future undeclared wars initiated I believe these questions have to be through a pro forma emergency condi­ by Presidents and prosecuted without answered. I will support the override of tion in the Mideast--an area vital to the broad congl:essional and public support. the veto, but I warn that much more has security of this country-where, if the Let this hour of debate culminate in a to be done if we are ever to come to grips bill had been law. had been on the books, vote to reassert congressional responsi­ with this issue effectively. there would not have been one string bility in the life and death decisions in­ Mr. HUMPHREY. Mr. President, will attached to the executive branch of the volved in the warmaking powers. the Senator yield? Government in carrying forth the alert, The PRESIDING OFFICER (Mr. in carrying forth their negotiations, and Let the people know by our actions to­ CURTIS) . The Senator's time has expired. in carrying forth every step they are tak­ day that the U.S. Senate acted forth­ Mr. McGEE. My time has expired, so ing to bring peace and stability to that rightly and responsibly to deter ill-con­ I do not have any time to yield. area. sidered actions which can involve the Mr. STENNIS. I yield the Senator 1 In no sense would any Member of this Nation in undesirable wars of no direct more minute. body wish to take away the prerogative consequence to our national security. Mr. McGEE. I yield that to the Sen. of the Commander in Chief from the This is a duty we owe to the American ator from Minnesota. standpoint of protecting the best in­ people. It was discharged by the House Mr. HUMPHREY. Mr. President, I just terests of this country. But certainly the of Representatives today and it will be, want to say to the Senator from vVyO­ provisions have been thought through I am confident. discharged in a few mo­ ming that indeed what he has said poses carefully and well, and we can conceive ments now by the Senate. the whole problem in all its dimensions. of no emergency that could not be dealt Mr. President, there has been adequate If this legislation does nothing else than with by the executive branch and Con­ communication with the executive put a stop, look, and listen sign up for gress under the provisions of this law, branch on this issue. Many of us, over a the kind of wise counsel the Senator is that we have been able to perceive. period not just of months but of several suggesting, then it will have served its Third, there is going to be. obviously. a years now, have strongly counseled the useful purpose. question in the minds of the American administration to cooperate with the But I do not think it is fair to say that people. Is this vote today just a reflec­ Congress in this respect, to have no feel­ it strips the President and limits him. tion of the attitude of Congress on ing that we are trying to take away I do not think it is fair to say that, be­ Watergate? Is the President losing his power, or that we are trying to take away cause we are also talking about treaties, clout with Congress because of that? the security of this Nation. We want the which are the supreme law of the land, I think it would demean this bill and protection of this cmmtry just as much and the treaty power inclUdes this great the work that has been done for months as anyone else does. But here was the op­ assembly known as the U.S. Senate. for any such implications to be made. portunity-and I am sorry.that it has May I say qUickly to my friend from After all, the President has had his vetoes now been missed-for the executive Texas that when he said he thought sustained throughout Watergate on branch to cooperate with the congres­ there would be rejoicing in the streets many different issues. But when the sional branch in a measure that over­ of Moscow, I am not sure whether there House of Representatives today took whelmingly and resoundingly now, by Thill be any rejoicing in the streets of their forthright stand, and when we, at two-thirds of our vote, we have spoken Moscow, but soon there will be a better 5: 15 p.m. today stand up and declare that with a loud and clear voice. sense of security and there will be a we feel the pl'erogatives of the warmak­ I believe that we are reflecting, as we sense of relief in the homes of America; ing powers of this country should be left never have on a vote before. a feeling and I am a whole lot more interested in and reserved to Congress, as was in­ deeply felt by the American people. We how the American people feel than how tended, let there be no implication that have justified the existence of the legisla­ they rejoice in the streets of Moscow. any Member of the House or the Senate tive branch of the Government, the sep­ They have not had anything to rejoice was motivated in his vote through some aration of powers, and the provisions about over there for a long time, anyway. reaction to Watergate. There is no single that permitted the overriding of the The most important thing is how we issue I know of that more Members of Presidential veto, as we never have feel here at home, because the security Congress feel more deeply about than before. of tllis country, Mr. President, is not this. After all, this is the whole question MI'. President, there is no question that merely in the cutting edge of our mili­ of war and peace. This is the whole ques­ the framers of the Constitution meant to tary. It is not merely in the dictates of tion of, are we going to make another give Congress the power to initiate hostil­ the President. It is in the confidence and tragic mistake such as we made in Viet­ ities. They made only one exception, em­ the trust of the people of this country nam, are we going to stumble into some- powering the President, as Commander 36194 CONGRESSIONAL RECORD-SENATE November"r, 1973 in Chief, to repel sudden attacks. How­ We h~ve already given in example one ef­ disagree as to what the respective roles ever, the Constitution does not specify fectual check to the dog 01 war by traDs1er­ of Congress and the President are con­ ring the power ot letting him loose from whether, under what circumstances, or by the executive to the legislative body, from cerning t:1e making of war. whose decision the Armed Forces can be those who are to spend to those who are to We could not hope, conceivablY,to re­ s·3nt into battle when Congress has not pay. solve that difference of·opinion in any declared war and there has been no piece of legislation. either that which sudden attack on the Nation. Thus, we remove ourselves from the passed the Senate in the first instance Many examples have been cited from era of Presidential wars where Congress or this bill which has been vetoed by the cur history attesting to Congress pri­ never expresses itself and where there is President. We simply cannot rewrite the mary responsibility in the initiation of never a national debate or national com­ Constitution in a way which can get the military actions. At the same time, many mitment, and where we consign Ameli­ concurrence of the President and the examples have also been given where in can young to fight and die with no ex­ Congress on this point. practice the Executive has ignored Con­ pression of why they fight or what we So this bill does not undertake to do gress role. Particularly since the turn of consider to be the goal. that. The bill does not undertake to im­ the century, Presidents have used mili­ With the war powers bill, we put the pose on the President a modification of tary force more freely, moving troops in dog of war back on the people's leash, his constitutional powers. It does not un­ support of foreign policy decisions and where it can only be turned loose through dertake to assert a restatement of Con­ in reply to particular situations. More the people's representatives. gress' view as to the President's role recently, questions about the division of Mr. STENNIS. Mr. President, I yield with respect to the warmaking pOwer. powers and Congress prerogatives have 7 minutes to the distinguished Senator What it undertakes to do is to estab­ been raised most strongly in connection from Maine (Mr. MUSKIE). lish a procedure for COmity as to different with the sending of U.S. troops into the The PRESIDING· OFFICER. The views in the future. so that Congress can Dominican Republic and Vietnam. Chair would advise the Senator from be brought in from the periphery of the The question of congressional re­ Mississippi that he has 6 minutes re­ warmaking power to its center in order sponsibility in warmaking has become maining. to exercise its proper role. a major issue in the country and-as we Mr. STENNIS. Then I yield the 6 min­ With respect to the comments that the in Congress well know-the American utes to the Senator from Maine. Senator from Missouri (Mr. EAGLETON) people are determined that there shall be The PRESIDING OFFICER. The Sen­ has made, let me make this simple point: no future undeclared wars initiated by ator from Maine is recognized for 6 In section 2 of the bill, 'we find this Presidents and prosecuted without wide minutes. language to which the Senator has al­ public support. Since a President can­ Mr. MUSKIE. Mr. President, the Sen­ ready referred: not effectively prosecute a war without ate has an historic opportunity this af­ The constitutIonal powers of Presl:ient as congressional support and popular ap­ ternoon to achieve a result that, in my commander in chief to introduce the United proval, adherence to the provisions of jUdgment, the great majority of the States Armed Forces into hostilities,' or into the War Powers Act could save Presi­ situations where imminent involvement in American people have been seeking for hostilities is clearly indicated by the circum­ dents from undertaking military adven­ at least 10 years stances, are exercised only p:ursuant, one, to tures contrary to the wishes and inter­ As I reflect back on the past 10 years, a declaration of war and, two, tospecific stat­ ests of the American people. Moreover, the present difficulties which beset our utory authorization or, three, ~ a national legislation of this type can be a deterrent country, the growing lack of confidence emergency created by· an attack '. on the to ill-considered actions which may in­ among our people in their institutions, United States, its territories. or possessions, volve the Nation in undesirable wars of their leadership, and the political proc­ or its Armed Forces. 110 direct consequence to our national se­ ess, it seems to me that if any single de­ It is true, as the Senator from Mis­ curity. velopment led to our present situation, it souri has pointed out, that this language This legislation is in no way a reflec­ was the expansion of the Presidential is not operative language. . tion on President Nixon, who inherited a role with respect to the making of war. Why was it put into the bill? major American war and has consist­ I do not have time to spell out the case Itwas put into the bill as an .indica~ ently reduced American involvement in that I have just asserted. But this legis­ tion that, in enacting a bill, Congress did that war. Had this legislation been en­ lation is an important step, a significant not intend +;0 surrender any. of Its con­ acted in 1960, President Nixon might step, a step that will be visible to the stitutional powers with· respect to the never have had the conduct of the Viet­ American people, reflecting on the de­ making of war. . .' ' .. nam war thrust upon him, because the termination of Congress to begin to re­ The remainder of the bill is a proce­ United States might not have committed store the balance between the legislative dural bill, undertaken to insure consu1ta­ troops to combat in that war. and executive branches with respect to tion by the President WithC()ngress and I should also like to reaffirm that this the warmaking powers. undertaking to put in the hands ot Con­ bill is a bipartisan, nonideological at­ I understand, of course, that such dedi­ gress the procedure for terminating any tempt by many Members of this body cated and able Senators as the distin­ hostilities into which the President may to delineate the executive-legislative re­ guished Senator from Missouri disagree have plunged us, whether or not his ac­ lationship. It is not a liberal initiative, as to the meaning of the legislation which tion in so doing conformed :with our view and it is not a conservative initative. The the President has vetoed. I do not have as to what his constitution powers might distinguished senior Senator from New time this afternoon to make the case be. York has correctly characteriz.-ld the bill which, hopefully, might reassure him. So I urge my colleagues to take this as landmark legislation. Indeed, I do not have the .confidence opportunity to begin the process of re­ Mr. STENNIS. Mr. President, I yield 2 that I could reassure him. asserting and reestablishing the role of minutes to the Senator from Florida. But let me make this point: Congress in the warmaking powers. It is The PRESIDING OFFIC:ii:R (Mr. The President vetoed this bill because a historic opportunity, and I hope we do STEVENSON) . The Senator from Florida is he said it took power away from him not let it pass us by. recognized for 2 minutes. that it was essential the President have The PRESIDING OFFICER: The Sen':' Mr. CHILES. Mr. President, this vote in the national interest. ator from Texas has 5 minutes remain­ on war powers is the most important vote The Senator from Missouri argues that ing. that I have made and the most important the legislation which the President Mr. TOWER. Mr. President, the dis­ issUe that the Congress has acted on in vetoed gives the President more power tinguished Senator from New York (Mr. the 3 years I have been pere. No longer than he should have with respect to the JAVITS), in a recent survey. was voted will Congress be able to shirk its consti­ making of war, and that that is against the brightest Member of the Senate. I tutional duty to be the branch of Gov­ the national interest. concur with that conclusion. As a mat­ ernment that declares war and makes the Mr. President, writing legislation in ter of fact, I once said that if lever decision when we shall take our people this field is a difficult proposition. It is were indicted for a ·felony. I would like into war. clear that .the President of the United him to defend me, and he responded by I think we take a giant step to make States--and I refer not just to this saying. very generously, that he would do tr.1l statement that Jefferson made in a President-and the Congress, and I it without fee. letter to Madison in 1789: . mean a substantial majority of Congress, That is why I am amazed to hear him November 7, 1973, CONGRESSIONAL RECORD-SENATE 36195 say that there is no relationship between bill is not only unconstitutional but also IIi light of the House's vote this morn­ the power to wage war and the power to unwise, despite the good motives of those ing overriding the President's veto of conduct diplomatic relations; I am sure who· sponsor it and support it. the war pOwers bill, the responsibility for that Tallyrand and Metternich and Cas­ I cannot, with clear conscience, vote insuring that American soldiers are tlereagh, at the Congress of Vienna, to override the veto of this bill, because never again introduced for extended would have split their sides on that I think the veto was sound. combat without the consent of the COll­ thought. I am· sure 'that Clemenceau I thank the Senator from Texas for gress rests squarely with the Senate. and Lloyd George and even Wilson, as giving me an opportunity to speak very I am confident that we will meet this naive as he was, would have thoUght that briefly against this bill on the ground challenge, and complete the flnal step in to be incredible. I wonder.what would that it is unconstitutional and unwise. a long and arduous process. IIi this proc­ have happened if we had suggested that Mr. BELLMON. Mr. President, along ess, the distinguished Senator from New to Stalin and Churchill and Truman at with a vast majority of other Americans, York (Mr. JAVITS), the distinguished Potsdam. I deplore the settlement of differences Senator from Mississippi (Mr. STENNIS) Mr. President, historically, it has been between nations by the use of armed and many others deserve special praise. proved that the relationship between force. AlsO I recognize that in recent Years of conscientious discussion, ex­ war and peace is avery close one, indeed, years this Nation has allowed itself to be­ tended committee hearings, and lengthy and that one cannot engage in the kind come drawn into military conflicts which congressional debate on the subject of of negotiations that result in peace if have cost heavily both in human suffer­ war powers have been expended in an one has not the power to wage war. ing and a waste of resources. These ex­ effort to ensure that we enact the wisest Therefore, I suggest that what we are periences have generated great opposi­ possible legislation. I believe we have met doing here is undermining. the historic tion in the country to future military ac­ this test. and constitutional role of the President tivities and have caused both Houses of This legislation, as before, has at­ of the United states as the principal Congress to reexamine the role of the tracted wide support among members spokesman and negotiator for our Nation Congress in the warmaking process. I of both parties. It is a bipartisan, non­ in the field of diplomatic relations, a share the concern that this Nation has ideological attempt to restore the con­ power that would reside in the national stumbled into military conflicts without stitutional balance of power between government, according to the. Supreme carefullY analyzing the costs and gaug­ Congress and the President, not to alter Court of the United states, even in the ing whether or not the objective was it. It is appropriate that the war powers absence of any specific constitutional au­ worth the high price we might be called bilI has such consensus, for warmaking thority in that connection, because it is a upon to pay. decisions involve both political parties necessary concomitant of nationality and Mr. President, at the same time the in the most profounc. kind of biparti­ must necessarily reside in the President hard realities of the current world situa­ sanship. ofthe United States. tion are such that among nations of the The widespread showing of support We are baring ourselves naked in the free world only the United States for the President during the recent Mid­ eyes of the only great power in this world possesses the will and the strength to dle East crisis is ample evidence of this but ourselves, the Soviet Union, if we preserve the peace. Reality also dictates bipartisan spirit whenever our country deny the President the flexibility of the that the President of this country must is threatened. use of military power as a precision in­ have great flexibility and a minimum of And the Middle East crisis is also tes­ strument of diplomacy. interference in his conduct of our com­ timony to the fact that the approach Mr. President, I yield the remainder plex foreign policy. which the bilI before us undertakes is of my time to the distinguished Senator To restrict the scope of his actions and eminently wise and workable. The Pres­ from North Carolina. to limit his ability to respond effectively ident was able to respond in time of Mr. ERVIN. Mr. President, on prior to fast-developing international situa­ crisis, and would have been so able to occasions, I have stated at some length tions is to render ineffectual his efforts to respond under the provisions of this bill. my position that this bill and previous avert the necessity for committing our Under this legislation, however, the bills of like nature are contrary to the troops and our resources to all-out war. Congress-and through us, the Ameri­ Constitution of the United States. can people--are brought back into the Section 2, article II, says: The intent of House Joint Resolution decisionmaking process in those de­ section 2. The President shall be Com­ 542 is commendable. However, there is cisions which most vitally affect our fu­ mander in Chief of the Army and Navy of the no need for this resolution. Anytime the ture as a nation. United States, and of the Militia of the sev­ Congress genuinely wishes to force the During this debate, there is one theme eral States, when called Into the actual withdrawal of American forces from any Service of the United States. which stands out in my own mind-that area of the world or from any combat there is something very wrong with the Section 4 of article IV says: situation we can do so by withholding way Presidents have committed Ameri­ Section 4. The United States shall guaran­ appropriations as we did in the Cam­ can military forces over the past 25 years. tee to every State In this Union a RepUblican bodian bombing situation earlier tlus Presidents have usurped congressional Form of Government, and shall protect each year. power, but only because Congress ha~ of them against Invasion; n is both inaccurate and dishonest for placed too much confidence in the Exec­ It is the constitutional power and the Members of Congress to say we are pow­ utive. Congress has acquiesced and ac­ constitutional duty of the President, erless under present law to prevent mili­ cepted various Presidential rationaliza­ without any declaration of war and with­ tary involvements of which the Congress tions and, therefore, must share part of out any action by Congress, to defend does not approve. The record shows that the blame for our involvement in the Do­ this country against invasion. This bilI, we can act if we have the will. minican Republic, Vietnam, Cambodia, in effect, says that the President cannot Mr. President, on that basis House and Laos. But the lack of prior consul­ exercise his constitutional power and Joint Resolution 542 can only be looked tation with the Congress in all of these cannot perform his constitutional duty upon as an unnecessary handicap upon commitments, as well as the recently re­ for more than 60 days without the con"' the Chief Executive in his efforts to con­ vealed series of secret military activity in sent of Congress. It says that the Presi­ duct a wise and successful foreign policy Cambodia cloaked in the name of "na­ dent cannot be the Commander in Chief aimed at keeping us out of war. I believe tional security," makes it imperative that of the Army and the Navy when the that, contrary to the expressed intent of Congress assert its legitimate constitu­ United States is attacked for more than the authors of this measure, it is more tional authority. For there is no longer 60 days and that at the end of 60 days, likely to produce than to prevent mili­ any doubt that a constitutional crisis Congress assumes that role. tary hostilities. For tIlis reason I believe over warmaking powers now exists. I think that this bill, despite the good President Nixon was wise in rejecting it If we fail to override this Presidential motives behind it. is on a parity with the and I will vote to support his veto. veto now, in the aftermath of the most Neutrality Act which we passed after the Mr. MONDALE. Mr. President, this gl:aphic example of the excesses of in­ First World War, and which caused the afternoon the Senate is engaged in pos­ dividual warmaking, we may be sanc­ Second World War, in large part. This sibly its most historic vote in decades. tiOlUng future Cambodias. OX!X--22So-Part 28 36196 CONGRESSIONAL RECORD - SENATE November /)'., 1973 As Alexander M. Bickel of Yale Uni­ of all Kingly oppressions, and they resolved Now, however, the likelihood of an­ versity, one of the country's great con­ to so frame the Constitution that no one other United States-Soviet .confronta~ man should hold the power of bringing this stitutional authorities, testified before oppression upon us. tion has diminished; and I think it is the Foreign Relations Committee on July clear to all interested parties that the 26,1971 with regard to the Vietnam war: The deception, secrecy, ambiguity of United States will not stand by idly The decisions of 1965 may have differed the Indochina experience have made the while any nation attempts to unfairly only In degree from earlier stages In this proc­ American people determined that there tip the balance of power sharply in favor ess of growth. But there comes a point when shall be no future undeclared wars ini­ of either side. For this reason. I shall a dlJIerence of degree achle\'es the magnitude tiated by Presidents and prosecuted now vote in favor of the motion to over­ of a dlJIerence of kind. The decisions of 1965 without clear-cut national support. amounted to all but explicit transfer of pow­ ride the President's veto. er to declare war from Congl:ess, where the During hearings on the war powers in Mr. President, in recent weeks and Constitution lodged It, to the President, on 1971, Prof. Henry Steele Commager made months, I have come to have an en­ whom the framers explicitly refused to confer the follOWing statement: hanced reverence for this Nation's Con­ It. Now after 20 years marked by re­ stitution and the distinguished men peated. and almost routine, invasions by who drafteJ it almost 200 years ago; and The war powers bill corrects the basic the executive of the warmaking powers just as I shall fight to protect the pre­ flow of the post-World War II practice assigned by the Constitution to Congress, rogatives of the legislative branch of our toward Presidential wars by reestab­ we can see that more is at stake even than Government, so shall I fight equally lishing the balance outlined in the Con­ the constitutional principle of the sepa­ hard to protect the pl'erogatives of the stitution so that Congress will decide ration of powers. At stake is the fate of executive branch. However, in this in­ whether and when this Nation goes to the age-long effort of men to fix effective stance, I am convinced that the drafters war. limits on government; at stake is the re­ of the Constitution intended for the re­ Yet the bill in no way impairs the Pres­ conciliation of the claims of freedom and sponsibility for warmaking to be shared ident's authOlity as Commander in Chief of security; at stake is the fateful issue by Congress and the President; and I am to repel attacks upon the United states of peace or war, an issue fateful not for further convinced that the measure or its Armed Forces, while it assures that the American people alone, nor alone for presently pending befo1'e the Senate is Congress maintains its warmaking au­ the stricken peoples of Southeast Asia, a responsible, and indeed, effective at­ thority over the unchecked, unilateral de­ but for the whole of mankind. tempt to do just that. I urge my col­ cisions of the President. As the Commit­ Mr. President, the issues at stake in leagues to vote to override thePresi­ tee on Foreign Relations stated in the re­ our vote this afternoon are fUlly as im­ dent's veto. port on the war powers bill: pOl·tant as Professor Commager de­ Mr. HATFIELD. Mr. President. among In brief, the Constitution gave Congress the scribes. They are historic both for our scars left from the Vietnam war is the authority to take the nation Into war, history as a Nation, and for our ability realization by the American people that whether by formal declaration of war or by other legislative means, and the President the as a Congress to check the ever-greater future U.S: militaryactioris around the authority to conduct It. tendency to unfettered executive author­ world cannot be implemented and carried ity. out solely by the President. A partner­ At the Constitutional Convention, the This bill will do much to restore the ship with Congress in forming war­ Founding Fathers, sensitive to the war­ faith of the American people in both the making policies lies at the heart of our making powers of the British kings, were Congress and the executive that war pol­ Constitution. Today's votel'ecognizes explicit in their desire that the power to icies are not being conducted in clandes­ the American people" want a: restoration declare war and to raise armies be left to tine remoteness, but openly, and within" of that policy. the legislature, with the President acting the spirit of our Nation's Constitution: I would admit that this bill, as it has as Commander in Chief after the onset of Mr. BAKER. Mr. President, I intend to come from the conference, is not totallY hostilities. They intended that no single vote in favor of the motion of override satisfactory to me. It can be argued that man, no matter how benevolent, could the President's veto of the war powers bill there is still a wide degree of Executive take this Nation to war. presently pending before the Senate. I discretion and latitude that many find As Jefferson stated in his famous letter shall do so not because of any desire to questionable. Yet it is abundantly clear to to Madison in 1789: encroach upon the prerogatives ·of the me that this measure represents an ini­ We have already given In example one ef­ President as Commander in Chief of the tiative tciw'ard control of Executive power fectual Check to the dog of war by trans­ Armed Forces, but rather in an effort in warmaking. ferring the power of letting him loose from to properly divide the' awesome respon­ Mr. President, the distribution of the Executive to the Legislative body, from sibility for committing U.S. combat powers between the Congress and the those who are to spend to those who are to pay. forces abroad for a prolonged period of Executive, which has been amply and time. extensively discussed with regard to the In the earlY years of the Republic, Although I had serious reservations powers to declare war, is best summarized Presidents acknowledged and carefully about the constitutionality of the origi­ by this quotation from Justice Brandeis: respected the war power of Congress. nal Senate bill, reservations which Separation of power was adopted by the President Madison said that the question prompted me to oppose final passage of convention of 1787 not to promote effi­ of "opposing force to force" was one the measure last summer, those reserva­ ciency but to preclude the exercise of arb1­ "which the Constitution wisely confided tions were dispelled by the portions of trary power. The purpose was not to avoid to the legislative department of the Gov­ friction, but by means of inevitable fric­ the House bill agreed to in conference. tion incident to the distribution of gov­ ernment." I was then inclined to support the new ernmental powers among three departments, Daniel Webster, while serving as Sec­ measure in the form of the conference to save the people from autocracy. retaryof State, said: report because of my strong belief that The war making power in this Government the Congress must reassert its author­ Today, the need to reinstitute the rests entirely In Congress; ... the President ity in this vital area as perceived and in­ proper and constitutional division of can authorize belligerent operations only In tended by the drafters of the Constitu­ powers has been made clear to all Amer-· the cases expressly provided for In the Con­ tion. However, at the time that the con­ icans. The present crisis we are encoun­ stitution and the laws. ference report was considered on the tering has been produced by the exercise Abraham Lincoln expressed his view­ floor, the United States and the Soviet of arbitrary power by the executive point on the matter in his protest over Union were drawing perilously close to a branch. Saving our Nation from autoc­ dangerous confrontation in the Middle racy demands, at the minimum, that the Mexican War while he was a Member Congress begin the process of becoming of Congress: East. a confrontation which was prob­ ably contributed to by our continued again a truly coequal branch of Gov­ The provision of the Constitution giving ernment. Passage of this war pOwers res­ the warmaking power to CongI'ess, was dic­ domestic troubles. Moreover, I was tated, as I understand it, by the following alarmed by the possibility that the So­ olution today is one step toward that reasons. Kings had always been involving and viets might misinterpret our resolve to end. impoverishing their people in wars, pretend­ counter any unilateral Soviet aggres­ Mr. DOLE. Mr. President, today marks ing generally, if not always, that the good sion in that part of the world; and I, a significant occasion for the Congress. of the people was the object. This, our Con­ therefore, voted against final passage of for our system of government and for the vention understood to be the most oppressive the conference report. future of the United States. Novernber 7, 1973 CONGRESSIONAL RECORD - SENATE 36197 By aetion of the Congress a bill will be­ No other single action can do more to designate beforehand tile limits on Presi­ come law and establish a basic partner­ reestablish the proper relationship be­ dential action and to establish the means ship between the legislative and execu­ tween the branches of the Federal Gov­ for Congress to obtain the information tive branches of Government in the exer­ ernment in this most critical area of it needs for intelligent action. cise of the power to make war. war and peace. By overriding the_ President's veto, we The War Powers Act has received long In its entirety, the war powers resolu­ can reaffirm the constitutional respon­ and intense study. It has been debated tion is a thoughtful and, indeed, con­ sibility of the Congress to decide whether in the House and Senate. It has been servative course of action. It seeks to the Nation shall go to war. But, without passed by both bodies. The President, preserve the basic institutional frame­ this action, we would by our silence in­ however, has opposed the bill, and he work of decision on these critical matters vite repetition of the Vietnam tragedy, has returned it to Congress with his veto. that was established in the Constitution a repetition that we cannot afford. Earlier today, by greater than the con­ nearly 200 years ago. It restates with new l:lantayana wrote that- stitutionally required two-thirds margin, force the separation of powers inscribed He who does not remember the past Is the House voted to override the veto. In in the Constitution, by reasserting the doomed to repeat It. a short time the Senate, too, will vote, role and responsibility of the Congress in Let us heed those words; let us learn and if the earlier record is any indication deciding whether to commit the Nation from history; let us vote to override the a two-thirds vote will be provided to to war. President's veto of the war powers bill. make the bill law. - We must not forget that the Consti­ Mr. STENNIS. Mr. President, a par­ I view thIs aetion as one of the most tutional Convention divided the war liamentary inquiry. important, constructive and beneficial powers between the executive and the The PRESIDING OFFICER. The Sen­ taken by Congress in recent years. legislature. The President was to be ator will state it. UNCLEAR AREA Commander in Chief. But the rest of the Mr. STENNIS. What is the pending The language of the Constitution war powers were entrusted to the Con­ order of business? makes it very difficult to determine the gress. The PRESIDING OFFICER. All time lines between the power of Congress to Article I, fection 8 of the Constitution has expired. The question is--' declare war and the duty of the Presi­ clearly states that power rests with Congress: CALL OF TH'" ROLL dent to act as Chief Executive and Com­ Mr. MANSFIELD. Mr. President, I mander in Chief. This difficulty has led To provide for the common Defense ... To define and punish ..• Offenses against suggest the absence of a quorum. to a great deal of uncertainty, concern the i,aw of Nations; To declare war, To The PRESIDING OFFICER. The clerk and dispute over the proper roles of raise and support Armies ... To prOVide will call the roll. Congress and the President in exercising and maintain a Navy, To make Rules for the [No. 477 Leg.] what has come to be the awesome and Government and Regulation of land and Abourezk Fannin Mondale sobering power of committing this Na­ naval forces; to provide for calling forth the Aiken Fong Montoya tion's Armed Forces to war. By bringing Militia to execute the Laws of the Union ... Allen Fulbright Moss some clarity and basic guidelines to play and repel Invasions; To provide .for orga­ Baker Gravel Musk!e in this field I believe this bill will con­ nizing, arming and disciplining the Militia Bartlett Griffin Nelson and for governng such part of them as may be Beall Gurney Nunn tribute in a major way to the better func­ employed In the Service of the United Bellmon Hansen Packwood tioning of our Government. State.... Bennett Hart Pastore A STEP TOWARD BETTER GOVERNMENT Bentsen Haskell Pearson The words of the Constitution and the Bible Hatfield Pell First, it will settle a point of serious Biden Hathaway Percy intent of its framers are clear. But over Brock Helms Proxmire dispute between the two branches of the past decades, the power to choose Brooke Hollings Randolph Government. war or peace has steadily accumulated Buckley Hruska Ribicotr Second, it assigns Congress in an ac­ in the hands of the President ultimately Burdick Huddleston Roth tive role in the warmaking process and Byrd, Hughes Saxbe bringing us Vietnam as the most painful Harry F., Jr. Humphrey Schweiker thereby should serve to increase both the and tragic reminder of the wisdom of Byrd, Robert C. Inouye Scott, foreign and defense policy authority of the Nation's Founders. To return to the Cannon Jackson William L. the legislative branch and the flow of Case Javits Sparkman Constitution, as this legislation does, is Chiles J ol1nston Stafford comunications between it and the execu" not merely desirable but also crucial Church Kennedy Stennis tive. In large part it is felt that poor if we are to learn from history the need Clark Long Stevens communications and a lack of congres­ Cook Magnuson Stevenson sional grounding in the facts and cir­ to maintain a proper division of responsi­ C~anston Mansfield Symington bility for waging war and making peace. Curtis Mnthins Taft cumstances of the Southeast Asian con­ Dole McClellan Thurmond flict produced too rapid and poorly con­ The need for this legislation has teen Domenicl McClure Tower sidered action on the Gulf of Tonkin res­ magnified by the disclosures of forged Dominick McGee Tunney bombing reports, by disclosures of the Eagleton McGovern Weicka olution. Eastland McIntyre Young Third, enaetment of this law and misuses of the intelligence gathering Ervin Metcalf arms of the Government, by the massiv"l establishment of its procedures to safe­ Mr. ROBERT C. BYRD. I announce guard the warmaking power should in­ boml:ling carried out in Cambodia earlier this year-all pointing to the need for that the Senator from Indiana (Mr. crease the people's confidence that their BAYH), the Senator from Indiana (Mr. Government will pursue the Nation's de­ legislation to repeat and reinforce the limits placed on the President by the HARTKE), the Senator from Georgia (Mr. fense on the broadest possible basis of TALMADGE), and the Senator from New consultation and cooperation among its Constitution. Equally important, events of the past Jersey (Mr. WILLIAMS) are necessarily leaders. absent. The bill insures the President the free­ several years demonstrate the ease with dom and capacity to take quick action which a system of shared powers can be Mr. GRIFFIN. I announce that the against any threat to our national secur­ eroded if one partner is unwilling to ex­ Senator from New Hampshire (Mr. ity. But it also assures that the commit­ ercise it'3 powers and the other is more COTTON), the Senator from Arizona (Mr. ment of our forces to prolonged and than willing to take up the slack. Since GOLDWATER), and the Senator from lengthy engagement will not be under­ the Korean war, the essential act of com­ Pennsylvania (Mr. HUGH SCOTT) are taken without the approval of Congress. mitting the Nation's might to hostilities, necessarily absent. I believe this approaeh is fully consist­ unlimited by time or distance, has been The PRESIDING OFFICER. A quorum ent with our Constitution, and it is re­ made by the executive branch. is present. sponsive to the requirement that our The reassertion of congressional re­ Mr. MANSFIELD. Now, it Is auto­ Government always be one of law not of sponsibility finally took shape this year matic. men. with the passage of legislation to halt The PRESIDING OFFICER. The ques­ Mr. KENNEDY. Mr. President, I the bombing in Indochina and to require tion is, Shall joint resolution Pass, the strongly urge the Senate to match the a clear and final end to U.S. military objections of the President of the United action taken in the House of Repre­ activity there. States to the contrary notwithstanding? sentatives today, and override the Presi­ This resolution provides the essential The yeas and nays are mandatory under dent's veto of the war powers resolution. second step in that process-a step to the Constitution. 36198 CONGRESSIONAL RECORD -SENATE No.v£mber _7, 1973 Mr. STENNIS. Mr. President, may we NOT VOTING-7 I (\xpress the deep hope, illmost a pray­ have order? Bayh Hartke Williams er, that after this long effort and -after Cotton Scott, Hugh Mr. JAVITS. Mr. President, a parlia­ Goldwater Talmadge the most searching inqUiry this:will' be mental"Y inquiry. found to be a salutary procedure in which The PRESIDING OFFICER. The Sen­ The PRESIDING OFFICER. On this the President will fUlly cooperate,'re­ ator will state it. vote the yeas are 75, and the nays 18. specting us especially in a time of trial Mr. JAVITS. To vote "aye" is to over­ Two-thirds of the Senators present and ,as much as we respect him as the incum­ ride? voting having voted in the affirmative, bent of the Presidency with the awesome The PRESIDING OFFICER. To vote the joint resolution, on reconsideration, responsibilities he carries. "aye" is to override. is passed, the objections of the President I hope that all of us, the people of the The clerk will call the roll. of the United States to the contrary not­ country and all men and women in Con­ The legislative clerk called to roll. withstanding. gress, will approach this matter with the Mr. ROBERT C. BYRD. I announce [Applause in the galleries,] solemnity and sobriety it deserves and that the Senator from Indiana (Mr. Mr. TOWER. Mr. President, order. make it an essential element of strength BAYH), the Senator from Indiana (Mr. The PRESIDING OFFICER. Order in for our country. HARTKE) , the Senator from Georgia (Mr. the galleries. TALMADGE), and the Senator from New Mr. ROBERT C. BYRD. Mr. President, Jersey (Mr. WILLIAMS), are necessarily what is the Senate rule with respect to demonstrations in the galleries? FEDERAL FINANCING BANK ACT OF absent. 1973 On this vote, the Senator from New The PRESIDING OFFICER. The oc­ Jersey (Mr. WILLIAMS) and the Senator cupants in the galleries are guests of the Mr. SPARKMAN. Mr. President, I ask from Pennsylvania (Mr. HUGH SCOTT) Senate. If they do not conduct them­ the Chair to lay before the Senate a mes­ are paired with the Senator from Arizona selves properly, they will be asked to sage from the House of Representatives (Mr. GOLDWATER). leave by the Sergeant at Arms. on H.R. 5874. ' . If present and voting. the Senators Mr. MANSFIELD. Mr. President, I sug­ THE PRESIDING OFFICER (Mr. from New Jersey and Pennsylvania gest the absence of a quorum. BARTLETT) laid before the Senate B.R. would vote "yea" and the Senator from Mr. TOWER. Mr. President, will the 5874, a bill to establish a Federal Fi­ Arizona would vote "nay." Senator withhold that? nancing Blink, to provide for coordi­ I further announce that, if present Mr. MANSFIELD. Briefly. nated and more efficient financing of and voting, the Senator from Indiana Mr. TOWER. Mr. President-- Federal and federally assisted borrowings (Mr. BAYH) and the. Senator from The PRESIDING OFFICER. The Sen­ from the public, and for other purposes, Georgia (Mr. TALMADGE), would each vote ator from Texas. which was read twice by its title. "yea." Mr. TOWER. Mr. President, may we Mr. SPARKMAN. Mr. President, I ask Mr. GRIFFIN. I announce that the have order in the Senate? unanimous consent that the Senate pro­ Senator from New Hampshire (Mr. COT­ The PRESIDING OFFICER. There ceed to its immediate consideration. will be order in the Senate. The PRESIDING OFFICER. Is there TON), the Senator from Arizona (Mr. objection to the present consideration GOLDWATER), and the Senator from Mr. TOWER. Mr. President, I just want to express the hope that the con­ of the bill? ' Pennsylvania (Mr. HUGH SCOTT) are stitutionality-- There being no objection,the Senate necessarily absent. Mr. ROBERT C. BYRD. Mr. President, proceeded to consider the bill. On this vote the Senator from Penn­ we cannot hear the Senator. Mr. SPARKMAN. Mr. President, I ask sylvania (Mr. HUGH SCOTT) and the Sen­ The PRESIDING OFFICER. The Sen­ unanimous consent that all after the en.;. ator from New Jersey (Mr. WILLIAMS) ate will be in order. acting clause of H.R. 5874. be stricken are paired with the Senator from Arizona Mr. ROBERT C. BYRD. Mr. Presi­ and that the language of S. 925 as passed (Mr. GOLDWATER). dent, may we have order in the galleries? on June 22, 1973, be inserted in lieu there­ If present and voting, the Senator The PRESIDING OFFICER. The gal­ of. from Pennsylvania and the Senator from leries will be in order. Senators will take The PRESIDING OFFICER. Without New Jersey would each vote "yea," and their seats and conversations will cease objection, it is so ordered. the Senator from Arizona would vote in the galleries and on the floor. The text of S. 925 reads as follows: "nay," Mr. TOWER. Mr. President, I simply Be it enacted by the Senate and House of The yeas and nays resulted-yeas 75, want to express the hope that the con­ Representatives of the United States of stitutionality of the measure just sus­ America in Oongress assembled, That this nays 18, as follows: tained by the Senate over the President's Act may be cited as the "Fecleral FinanJing [No. 478 Leg,] veto will be challenged at the earliest Bank Act of 1973". YEAS-75 possible opportunity. FINDINGS AND DECLARATION OF PURPOSE Aiken Gravel Moss I think that we have sent a very dan­ SEC. 2. The Congress finds that demands for Allen Hart Muskie gerous signal to Moscow, indeed. And I funds through Fedeml and federally aSSIsted Baker Haskell Nelson hope that at the very earliest possible borrowing progmms are increasing faster Bartlett Hatfield Nunn than the total supply of credit and that such Beall Hathaway Packwood legal opportunity the constitutionality of borrowings are not adequately coordinated Bentsen Hollings Pastore this measure will be challenged and the Bible Huddleston Pearsoll with overall Federal fiscal and debt manage­ Biden Hughes Pell unconstitutionality of it will be made ment policies. The purpose of this Act is to Brock Humphrey Percy apparent. aSSUre coordination of these programs with Brooke Inouye Proxmire Mr. MANSFIELD. Mr. President, I the Overall economic and fiscal policies of the Burdick Jackson Randolph suggest the absence of a quorum. Government, to reduce the costs of Federal Byrd, Javits Riblcoff and federally assisted borrowings from the Harry F., Jr. Johnston Roth Mr. JAVITS. Mr. President, would the Byrd, Robert C. Kennedy SChwelker Senator withhold that request? publiC, and to assure that such borrowings Cannon Long Scott, are financed in a manner least disruptive of Mr. MANSFIELD. Briefly. private financial markets and institutions. Case Magnuson WilllamL. Mr. JAVITS. Mr. President, I do not Chlles Mansfield Sparkman DEFINITIONS Church Mathias Stafford think that it will do our country any Clark McClellan Stennis good to send out warnings like those just SEC. 3. For the purposes of this Act- Cook McClure Stevenson ( l) The term "Federal agency" means' an Cranston McGee Symington uttered by the Senator from Texas. executive department, an independent Fed-' Dole McGovern Taft I doubt very much that any court eral establlshment, or a corporation or other Domenlcl McIntyre Tunney would have decided this before or would entity established by the Congress whicl, is Eastland Metcalf Weicker Fong Mondale Young decide it now. It is almost a classic ex­ owned in whole or in part by the Untted FUlbright Montoya ample of what the courts have considered States. (2) The term "obligation" means any note, NAYS-I8 a "political question." That was the rea­ son that we had to settle it through legis­ bond, debenture, or other evidence of in­ Abourezk Eagleton Helms debtedness, btlt does not include Federal Re­ Bellmon Ervin Hruska lation, including a veto override. No one serve notes or stock evidencing an owner­ Bennett Fannin Saxbe is being arrogant about this. We are Slllp interest in the issuing Federal agency, Buckley Griffin Stevens Curtis Gurney Thurmond talking about war. This involves human (3) The term "guarantee" means any Dominick Hansen Tower lives in the millions. guarantee, insurance, or other pledge with