Tonight... from Boston... The Advocates. Guest advocates
George Reedy and J. Daniel Mahoney and the moderator, Victor Palmieri.
Good evening, and welcome to The Advocates. Each week at
this time we look at an important public issue in terms of a practical
choice. Tonight The Advocates looks at an issue dealing with the separation
of power in government. Specifically, the question is this: "Should Congress
Limit the War Powers of the President?" And our guest advocate, George
Reedy, says "yes."
In the past two decades, some 80,000 American soldiers
have lost their lives as a result of two wars that have not been declared,
or have not been approved by Congress, through the regular Constitutional
processes that were laid down by the founding fathers. There is nothing we
can do to recover the past, and there is no point in looking backwards, but
there is a need tonight to plug this gap in our political structure. And
with me to help explain these issues are Senator Jacob Javits of New York,
and Dean Robert McKay of New York University Law School.
Guest advocate J. Daniel Mahoney says "no.
There's no question that Congress ought to have
substantial war powers. It does. The Constitution thought of that two
hundred years ago. What happened during the Vietnam War was that Congress
chose to exercise its powers to support the President. Senator Javits, and
others, now have second thoughts about Vietnam. They are certainly free to
do some Monday morning quarterbacking if they wish, but they should not be
allowed to strip the President of essential Executive powers. The Javits
bill would dismantle the system of checks and balances which is the very
underpinning of our government. With me tonight to argue against it are
former Undersecretary of State Eugene Rostow and Professor John Moore of
Virginia Law School.
Before we proceed with the cases, let me give you a
little background on our two guest advocates. Mr. Reedy is the former Press
Secretary to President Lyndon Johnson and is now with the Woodrow Wilson
International Center for Scholars in Washington, D.C. And we welcome back
Mr. J. Daniel Mahoney, who is Chairman of the New York State Conservative
Now for some background on tonight's question. Thirty years
ago this week, the Japanese attacked Pearl Harbor. Congress declared war.
And since then, there have been no declared wars, and yet thousands of men
have died in Korea, Vietnam, and lesser hostilities. Under the Constitution,
both the Congress and the President have substantial war powers. Article I
gives Congress the power to declare war and to raise and support armies.
Article II makes the President Commander-in-Chief. But the rules for the
exercise of these powers have never been made clear. The key question: "Who
decides when and where America goes to war?" has remained unanswered.
Since the Constitution was adopted, Presidents at their own
discretion have sent military units into hostilities on at least 125
occasions. In the last twenty years, Presidents have taken a broad view of
their inherent Constitutional powers.
President Truman, arguing that as Commander-in-Chief he
could send U.S. forces anywhere, ordered them to Korea without Congressional
President Kennedy asked for a Congressional resolution
confirming that he already had all necessary authority to act in the Cuban
President Johnson called the Tonkin Gulf Resolution,
authorizing the President to act against North Vietnam "desirable, but not
President Nixon expressed the belief that he alone has the
responsibility to define and protect the security interests of the United
These claims, added to confusion over how and by what
authority we became involved in Vietnam, have led to renewed interest in
legislation which would clarify the exercise of the war powers. Senator
Jacob Javits, one of our witnesses tonight, was the first to introduce a war
powers bill. It contains four important provisions: First, a list of those
cases in which a President could commit U.S. troops to hostilities without
prior Congressional approval; Second, a requirement that the President
report promptly upon any such commitment; Third, a requirement that the
commitment terminate within thirty days unless Congress approves it; and
Fourth, periodic Congressional review of such commitment.
Under this proposal, Congress could tell the President when
he could act without their prior approval, and it would move quickly to
review any such action. Well, Mr. Reedy, tell us why Congress should adopt
the Javits bill, limiting the President's power to involve U.S. forces in
There's no question whatever that the founding fathers
regarded the act of war as one of the most solemn that a nation could
undertake. And consequently, the principle was very clearly laid down at the
founding Convention... that this was a power that not only should be, but
had to be, shared between the President and the Congress. The Constitution
very clearly gave the President the power to deploy troops, to manage the
war, to take care of the day-to-day job of fighting, of directing the
fighting men. But this Congress, this same Constitution also clearly laid in
the Congress the power of determining when that war would be waged, and
under what circumstances. This sharing process was not a question of whether
one side or the other was to be trusted. It was just the understanding of
the founding fathers that an act so solemn as sending men out to die should
only be undertaken when you had discussion between at least two branches of
We have now engaged in two major conflicts which have cost
tens of thousands of lives and inflicted severe casualties. And in the wake
of that conflict, we have had around the nation distrust, suspicion, and an
inability to get the precious national unity. The effort before us tonight
is one to once again bring Congress back into the basic question of how we
shall determine when and under what circumstances our nation will fight. And
with me to help me explain this is Senator Jacob Javits of New York.
Welcome to The Advocates, Senator.
Senator Javits is Republican member of the Senate
Foreign Relations Committee, one of the most distinguished legal minds in
the Senate, and he is the author of the major resolution that is before the
Congress on the subject we are discussing tonight. Senator Javits, would you
explain the justification for your bill.
The bill essentially, aside from what's been said about
filling in a vacant place in the Constitution, is designed to see that if
the people are committed to war, that the Congress and the President concur
in it. And we have tried, therefore, to develop a technique by which this
could be done. Our one critical matter — not only does my bill determine
that the Congress* consent must be obtained to commit the people to war, but
it gives Congress the ability to turn war off, and this has never been done
in our history. But now with undeclared wars the fashion, you can't wait now
to have a declaration of war as President Roosevelt did when he went up to
the Hill and got a declaration in a day...you can't even wait for that with
this kind of immediate reaction situation which faces the world. My bill
contemplates that by giving the President that power, but it turns it off at
the end of thirty days or sooner, if the Congress so decides. And it turns
it off by the Congress authorizing what it wants to authorize. It may
authorize a limited war. It may authorize a war which will go on until it
stops it. Or it may give the President a broader mandate than that. For all
of those reasons, at long last, the people's lives will no longer be in the
hands of one man, eminent as he is, President of the United States, but will
also be vested in their people's representatives, continually elected and
turned over as a group, the Congress.
Senator, is there anything in your bill that would
hamper the President or restrict the President in the legitimate and proper
function of safeguarding the interests of the United States?
I see nothing in it whatever. The bill gives the
President the immediate power to react upon an attack, either upon the
United States or upon our forces anywhere. It gives him the power to use our
forces immediately to rescue American citizens who may be stranded in some
foreign country. It gives him the power to use our forces immediately
anywhere. If we have already given him that authority by previous
resolution, I see nothing...and in addition, very importantly, it gives him
the power to react to an imminent threat against our forces or against the
United States. Or it gives him also the power to deal with sending troops
into a situation where hostilities are indicated—let's say a war zone—"
where there already are hostilities— all for thirty days, and at the end of
that time, his power has ended. And that's been the big deficiency about
Vietnam, which has so disillusioned the country, that if...even if Lyndon
Johnson was right about the fact that he had the power...even if we gave him
the power in the Gulf of Tonkin Resolution, we had no way of turning it off,
we had no way of controlling it, except to cut off appropriations, and no
Congress wants to do that and jeopardize men in the field.
Senator, is there any further authority in the event
that Congress, at the end of thirty days authorizes the Congress to continue
the action that he has started...does Congress have anything more to say
No, the President conducts the war and runs it as he
normally would as Commander-in-Chief, and it is not an armchair war run by
No, but is there any, any sort of provision in it which
would give Congress a continuing brief so it could keep informed?
No question about it. The President is required to
report periodically, not less than every six months, as to what's happening
in the situation in most eminent detail. And, if the Congress has so
provided and is authorizing resolution, at the past, at the end of the
thirty days, it can turn the war off. It can say within such and such a
time, your authority ceases.
Is there any machinery, Senator, which now gives the
Congress of the United States this type of a watching brief?
There is none, except that Presidents, at their own
choice since World War II, have come in for a resolution. President Kennedy
did for a resolution, as it was said before, confirming what authority he
utilized in respect to Cuba; and incidentally, there is nothing in my bill
which in any way would have stopped him from doing what he did about
Would you construe such resolutions as the Gulf of
Tonkin Resolution or others of a similar nature that have been adopted as
Congressional consent to the type of escalation we have had in
Certainly not in respect to Vietnam, where the case is
very clearly against any such construction.
Senator, we'll go to advocate J, Daniel Mahoney, who has
some questions on cross-examination.
Senator Javits, on that last point, didn't the floor
debate at the time of the adoption of the Tonkin Gulf Resolution between
Senators Cooper and Fullbright, Senator Cooper's question to Senator
Fullbright and the very specific answer Senator Fullbright gave have
advocated the very broad hostilities that have since ensued in
Not for the time, and not for other than in reaction to
the immediate attacks that President Johnson alleged that our ships had
suffered. And in addition, if I may just finish the answer, in addition, the
Senate did not have, because there was no practice, which my bill would put
into effect, it did not have that sense of responsibility that it was
joining in the making of war, which my resolution would compel the Senate
and the House, I wish to emphasize, to do, All this is all the difference in
Well, doesn't your bill allow the Senate to terminate, I
mean, doesn't it allow the Senate to be very irresponsible, in the sense
that it would take no action and the war would terminate?
Well, I would think as far as the American people are
concerned, that they want, in view of what they've gone through in Vietnam,
I think that they want the Congress to be able to veto the waging of war.
And so did the founders of the Constitution, because they wrote into it that
only the Congress could declare war, but that power began to be meaningless
by the idea that it is the President who can make a war, whether it's
declared or not.
But isn't the problem here that if the President vetoes
a bill, he has to sign it and give his reasons. Here Congress could just not
come into session, or whatever, and if they don't act affirmatively within
thirty days, whatever the President has done is terminated. Isn't that
That's exactly right. But so can the Congress act with
respect to appropriations, or anything else. If you're telling me that a
particular body can be so undisciplined as to not to act in that kind of a
situation, I'll point out to you that we can appropriate billions of dollars
and the President doesn't have to spend a dime. Then the country would end
up in anarchy and disorder, and we could be defeated all over the world. If
that's the only argument, it's just as valid for the President as for the
Well, there are other arguments. What were the arguments
that prompted the House of Representatives, the Foreign Affairs Committee,
and Congressman Finley, the original House sponsor of your bill, to reject
your bill after hearings and adopt a very different resolution?
Now, if you'll tell me what the different resolution is,
It's a resolution that calls simply for reporting but
doesn't have anything...it calls for consultation and reporting, but the
thirty day veto provision and the provision that limits the President to
power to initiate hostilities to a very few limited category cases…none of
those are in the House resolution.
It very often happens that one House doesn't do what the
other House thinks ought to be done and when we get together, we'll find
that the Senate, if it passes my bill, may prevail or having passed my bill,
the House will think very differently about Representative Finley's
resolution and pass one like ours. That's why you have two Houses.
Would your bill, as constituted, would it have done
anything to make the history of Vietnam any different?
Completely different. Because, in the first place, the
Houses of Congress, the members, would have realized that this wasn't just
the President seeking confirmation of what he was already going to be
engaged in doing...that they were going to continue the war, and it would be
on everybody's heads, and everybody's hands. And secondly, in whatever
mandate we gave him, we could have made the reservations either to revoke or
change. And third, we would have had a right to know everything that went on
all the time. Now, when he reported to us, if he did, it was by sufferance,
and it's been notorious public knowledge that we have the greatest
difficulty getting the necessary information from witnesses who claim
executive privilege to whip the President's right not to tell us. But if we
have some power over it, we can revoke the mandate that enables him to wage
the war, then believe you me, we and the people will know everything.
Well, you still have that power. You have that power
right now. For instance, in the Defense Appropriation Act of 1969, Congress
prohibited the use of American ground troops in Laos and Thailand, didn't
And hasn't that been effective?
That's been...we believe has been effective.
So if you wanted to do that in Vietnam, you could do it
We could, and I pointed out before, that you don't cut
off appropriations when you have men in the field fighting because of the
deep feelings, and I think it's shared by all Americans, that you don't want
to leave your fellows stranded in a fighting condition. So that's not an
Well, it is an effective remedy to adopt, for example,
the Hatfield resolution, the Mansfield-Hatfield Resolution that says they
have to be out in six months, but it's just a case of the people who are
opposed to the war can't get the support to pass the resolution.
No, I differ with you, because I believe that Congress
constantly has that inhibition of that particular point about paralyzing an
American effort which jeopardizes our own people in the field. And that's
why we haven't been able to get a majority. I don't agree with that. I
believe we ought to pass the McGovern-Hatfield, but nonetheless, a majority
of Congress, not having that kind of control which would be given by my
bill, is very reluctant to do it and doesn't do it. Hence, the war drags
Senator, let me ask a question for clarification. Where
would the Congress get the information that is available to the President to
make a judgment about the wisdom of a Presidential decision on entering
In view of the fact that the President has to depend
upon us for the power to go to hostilities, we can, as a condition of
granting that power, get the information. That's an ability we do not have
Senator, take the situation in the Mid-East. If the
Arabs invaded Israel tomorrow and the President thought it was in the
national interest to intervene in some way to help them in that situation,
perhaps by just sending fighter plans in. Isn't it true that your bill would
Under what provision.
Well, I'll tell you why. For one, we have a Middle East
Resolution on the books right now which was passed in 1957 under which the
President could act if a party to the invasion was the Soviet Union. And if
the Soviet Union was not a party to the invasion, the Israelis could handle
it very handily indeed. And in addition, the President could immediately
come to the Congress for authority. He doesn't have to wait the thirty days.
We give him thirty days, but he can come immediately.
The last section of 3D of your bill would make that
Resolution that's currently on the books inoperative the day this statute
was enacted into law.
I beg your pardon. It would not. It is treaties which
are made inoperative, not that Resolution. I know my bill very well.
Senator Jacob Javits, thank you for being on The
Advocates. Mr. Reedy...
And so the point remains. There is no machinery. There
is no regular procedure that Congress can, in this age of the undeclared
war, carry out the duty that was laid upon it by the founding fathers. To
discuss this question in terms of appropriations, which is essentially a
housekeeping problem, or to discuss it in the question of Congress passing
individual resolutions, one for Laos, one for Cambodia, one for another part
of the world, which would seem to me to be genuinely an infringement upon
the Executive privilege and genuinely an effort to have Congress run the
war, I believe that such efforts are utterly futile. We are still face to
face with the basic question: What is going to happen when a people find
themselves fighting war after war after war without the due partnership that
was intended in the Constitution when the founding fathers said both the
President and the Congress should act.
Thank you, Mr. Reedy. We're going to come back to you
for your rebuttal case. Let's go to Mr. Mahoney. Why should the Congress not
limit the President's war making powers?
Under the Constitution, Congress can declare war, draft
or refuse to draft armies, provide or cut off funds for military action as
it did in Laos and Thailand in 1969, prohibit the use of American troops.
Congress has all these powers and more. So the Javits bill isn't needed to
give Congress a proper role in the exercise of our nation's war powers. The
question tonight is whether the dangerous limitations which the Javits bill
would impose upon legitimate Presidential power should be adopted. The
Javits bill would allow the President to repel an attack upon the United
States or its armed forces, or to rescue American citizens overseas. The
President could also act if a treaty or law specifically allowed him to do
so, but no treaty signed in the past would provide that authority. In every
other situation, that is, in most cases where there might be a real need for
a limited deployment of our armed forces, such as Cuba yesterday, or the
Mid-East tomorrow, the President would be hamstrung. In those rare cases
where the President could act, furthermore, the act would be terminated in
thirty days unless specifically approved by Congress, no matter how
dangerous or even disastrous that termination might be. There is great war
weariness in our nation today, and a dangerous drift towards isolationism.
The Javits bill reflects this mood. Its enactment would undo the
Constitutional system of checks and balances over war powers and undermine
our nation's capacity to conduct a credible foreign policy of deterrence. To
discuss the critical role of Presidential authority in conducting our
foreign affairs, I would like to call now Professor Eugene Rostow.
Professor Rostow, we're glad to have you on The
Professor Rostow was Undersecretary of State for
Political Affairs from 1966 to 1969, is a former dean of Yale Law School
where he is now a professor of law, and the author of Law, Power and the
Pursuit of Peace. Professor Rostow, Senator Javits has said the division of
war powers between a President and Congress has changed in the past twenty
years. Do you agree?
No, I do not. I think the pattern of division between
the President and Congress with respect to conduct of foreign relations and
the making of war has been constant since 1789. There has been no erosion of
Congressional authority. There has been no aggrandizement of the President.
What has happened is that circumstances have changed in the last twenty
years...in the last thirty years really...in that we now face a totally
different situation from the situation which we faced in the 19th Century.
The British Fleet no longer protect us. Actually, during the 19th Century,
both the President and the Congress acted with a great deal of freedom with
respect to the making of war. The forces have been used, as has been
mentioned, over 150 times in our nation's history, since 1789, only five
times pursuant to a declaration of war. With references to what Mr. Reedy
said, in one of the early cases that came up during John Adams' undeclared
war with France, Chief Justice Marshal said he was glad to see that no one,
on either side of the debate, had suggested that the power to declare war
mentioned in the Constitution was exclusive. The President has independent
powers, Congress has independent powers, Congress may choose and the
President may choose to authorize limited wars which do not involve the
state of war as known to international law. And that power was exercised
many times from the earliest days of the republic in connection with the
Barbary Pirates, with the opening of Japan, with the Philippine Insurrection
and the Boxer Rebellion, many, many other occasions. Some of them, of
course, were very extensive campaigns, like Wilson's campaigns in Mexico. So
I don't think there's any substance in the argument that the plan as
invested by the founding fathers has been changed. What bills like Senator
Javits bill would do, I believe, the Bricker Amendment before it, would not
be to restore some hypothetical Constitutional balance between the President
and Congress. It would change that balance.
What specific effects would such a change have, in your
Well, I think it would deprive the President of the
power he needs most. It seems to me that in the world we're living in, the
drift towards chaos and war can only be deterred by the strong, steady,
calm, credible assertion of American will backed by strong alliances and
treaties that have credibility, and backed by the vigilance and activity of
the President in the diplomacy of peace. Now I don't agree with Senator
Javits. I can find nothing in his bill that would have authorized President
Kennedy to do what he did in the Cuban Missile Crisis. None of our forces
were affected, nor was the country directly threatened. And I cannot fit the
Cuban Missile Crisis into the pattern of his bill.
You don't regard that as an imminent threat?
No. I don't think, further, that the bill would have
prevented what happened in Vietnam or in Korea, of course, it would have
required a joint resolution of Congress and simply not acting under the
United Nations Charter as a treaty, which is what President Truman did. It
would not have prevented President Nixon from going into Cambodia and Laos,
because there he was undertaking reprisals for armed attack. But what it
would have prevented in my judgment, is precisely the kind of deterrent
power the diplomacy of the President requires most. In a situation like that
in Jordan in the Pall of 1970 when President moved the Fleet and thus headed
off a very dangerous confrontation that could have involved us with the
Soviet Union. Or when President Johnson in June of 1967 received a very
threatening letter from Kosygin mentioning the possible use of military
force and while, he sent him a very mild and calm answer, he also ordered
the Fleet to turn around and steam toward Syria.
What would the Javits bill require in that
It would have required him to go to Congress, which is
to make public a threat against the Soviet Union, which is precisely what we
wanted to avoid. We wanted to make it easier for the Soviets to back down
and not to intervene in the Six Days War, and Senator Javits bill would have
required that threat to be a public threat to the Soviet Union, which is
just the wrong way to handle that sort of situation.
What would… In the Cuban Missile Crisis, how are
decisions made in a situation like that? What are the mechanics of Executive
decision? How does that work and how would a requirement for Congressional
authorization impinge on that process?
Well, it's a...this is one end of the spectrum of
diplomacy where diplomacy involves the threat or predicate of force. And it
seems indispensible if the goal of your foreign policy is to avoid
confrontation and avoid general war, that diplomacy be flexible, have all
the resources backed by the threat of force, to minimize the risk that there
be a true confrontation and to make it easy in terms of the day-by-day,
minute-by-minute handling of the crisis that the situation could be
Professor, we'll go to Mr. Reedy for
Dr. Rostow, I was very intrigued when you mentioned the
Adams' undeclared war against the French. How many casualties were involved
in that war?
I haven't any idea.
Do you think it was very sizeable?
Well, it was significant.
I haven't any idea.
Tens? Was anybody conscripted to fight in that
Now, do you think, therefore, that you could compare the
undeclared War against France or the Barbary Pirates — wars which had very,
very, very low casualties and in which no one was conscripted — are they in
the same order as Korea, where some 32 or 33,000 men were killed, where tens
of thousands, even hundreds of thousands of soldiers were conscripted...You
know, in one month we drafted 80,000 men for that war...Or with Vietnam, a
war which has gone on for more than...I don't know where you'd place the
beginning point...I guess it depends on one's prejudices... but one which
has cost us close to 50,000 casualties and for which many more than a
million men have been drafted. Do you think there is a slight difference
between the Barbary Pirates and the...those two situations?
I wasn't comparing them. I said that the situation...
circumstances that the nation has completely changed since World War II. I
said that the pattern of Constitutional usage has not changed. There was
some very extensive and costly campaigns that were conducted in the
past...one to suppress the Philippine Insurrection involved 60 per cent of
our forces at the time.
How many draftees?
None, as you very well know. But the problem, Mr. Reedy,
is a different one, it seems to me. It seems to me that what bills of this
kind would do, or Senator Bricker's amendment would do, would be to maximize
the risk of general war and to deprive the presidency of the power which it
needs and needs most. What it seems to me we face here is that men have
changed their minds about Vietnam and that they are now undertaking to limit
the powers of the presidency. They are reacting to Vietnam and Korea as an
error. And it seems to me that the fundamental issue in this situation is
that by their...their punishment doesn't fit what they regard as the crime.
The Supreme Court has committed error many times. Any human institution has
committed error. If there was error in Vietnam, which I do not concede, the
error would not be cured by this. We didn't weaken the Supreme Court, even
after Judge Scott...
Mr. Rostow, I quite agree with you that there's no
question of curing error here. But then, do you think the founding fathers
made an error when they set down the basic principle- that both the
President and the Congress would be required to share the war making
They didn't set down that principle. They knew very well
that under international law, which was very familiar to them because they
lived in times just as turbulent as our own, that there were many uses of
force by governments which did not involve the state of war.
And which they sought to head off. You're right there,
Dr. Rostow, this was very much in their minds at the founding
And there are quite a few numbers of the Federalists
papers that go directly to that question.
That's right. I'm not an enemy at all of...I'm not a
friend of unlimited Presidential power…and I believe in the pattern of
shared responsibility which is represented by resolutions like Formosa, the
Formosa Resolution, or the Tonkin Gulf Resolution, or the Middle East
Resolution to which Senator Javits referred...but those resolutions should
not...they should be regarded as sensible and desirable, but not
Constitutionally exclusive. Because the problems which the presidency faces
in its day-to-day conduct of relations often requires flexibility and
secrecy in the manner in which I indicated.
Dr. Rostow, do you think that the unity of this nation
could stand another war equivalent to Korea or Vietnam without some form of
machine through which the people can make their will known?
The key to the problem of national unity, Mr. Reedy, is
understanding and responsibility. Congress voted many times for the war in
Vietnam, over and over again. And it authorized it in a pattern of
Constitution propriety which is…
Are you referring to appropriations, the Tonkin Gulf
I am referring to the Tonkin Gulf Resolution. I am
referring to appropriations and resolutions.
Would you contend, Dr. Rostow, that it was the
understanding of the Senate of the United States and of the House of
Representatives that the Tonkin Gulf Resolution authorized the type of
escalation that came later?
Well, I think you'd find that quite a few members are
very clear that that was not their understanding.
Gentlemen. Mr. Reedy, this is the end of our segment.
Thank you very much, Professor. Mr. Mahoney.
I'd offer the observation that those members who don't
think that's what was said on the floor should either read the Congressional
Record or listen to what's said when the debates are held. My next witness
is Professor John Moore of Yale University...excuse me, the University of
Virginia Law School.
Professor Moore, you're welcome anyway.
He's a graduate of Yale Law School, so I was only half
wrong. Professor Moore teaches law at the University of Virginia and has
recently completed a book called, Law and the Indochina War. He has
testified on the Javits bill before both Houses of Congress. Professor
Moore-, does the Congress have adequate power to control the President's
action in committing the nation to war?
It certainly does, Mr. Mahoney. There is simply no
doubt that constitutionally, Congress can pass an act, terminating any war.
There is simply no need at all to have a provision calling for some kind of
thirty day veto. Short of such an act, they can curtail appropriations, they
can refuse to draft, they can mobilize public opinion behind the various
substantial Congressional hearings. In short, the issue in this case is not
that which Mr. Javits tells us it is, a question of having power to curtail
a war. Congress has that right now. Similarly, it is not what Mr. Reedy
tells us that it is, that Congress should participate in major war-peace
decisions. Of course, they should, and they have.
These controls that Congress has over the conduct of
war, did they fail to work in the case of Vietnam?
No, I don't think so. In Vietnam, we had a situation,
obviously, in which many Congressmen disagreed, and particularly through
time, as the war became more controversial. But I think there is simply very
little doubt that there was Congressional participation in that series of
authorizing decisions in the Indochina contest. For example, in 1964,
Congress passed the Tonkin Gulf Resolution, which in very broad and
carefully chosen language gave the President the power to take all necessary
measures to use force to prevent armed attacks on American forces in
Indochina and to prevent further regression. Now I realize, as Mr. Reedy has
pointed out, that there is a great deal of controversy about the
interpretation of the Tonkin Gulf Resolution, and I am happy to say, or
perhaps unhappy to say, that I spent a dull four days one time in the
basement of the Yale Law Library going through all of the Congressional
debates in both the Senate and the House on the Tonkin Gulf Resolution; and
I think there's simply no doubt that though there were individual variations
expressed, that Congress knew that it was authorizing the possibility of
major hostilities and that they were giving the President that
You said the real issue was not lack of Congressional
control. What are the grounds of your opposition to the Javits bill?
Well, there are several points on which I would oppose
the Javits bill. The first of those is that it seems to me unwise to rigidly
attempt to codify each of the situations in which the President is going t«
have authority to use armed forces abroad. There are hundreds of these, or
thousands of potential situations. There have been several hundred uses of
force abroad in the history of the United States. You simply cannot distil
all of those in the four situations of the bill. I think the framers very
carefully avoided that kind of rigid codification and we should not do
Mr. Reedy, it's your turn,
Thank you. Professor, you're a student of government as
well as a lawyer. What do you think would happen if some day a President
gave a war and nobody showed up?
Mr. Reedy, I think the question sheds quasi light on a
very real problem. The very real problem that we have is how do we best
structure the Constitutional process in the United States to achieve the
kind of democratic control that you and I would both like to see. I think
Congress has lots of power. I think there are a variety of different
alternatives which Congress could positively enact which I think would be
preferable to a rigid delimitation approach, and one of those is the joint
resolution which has now been passed twice by the House of Representatives
that creates a reporting requirement.
Don't you think that we may some day face that
situation, where nobody will show up, unless we do compel with joint sharing
of the responsibility of the war powers?
Well, Mr. Reedy, again with all due respect, I think it
is sheer myth to believe in the Indochina context that there has not been a
major participation by Congress in the process. In addition to the Tonkin
Gulf Resolution, there have been some 15 to 20 appropriations measures
passed. Congress has refused to this day to pass the McGovern-Hatfield
amendment, terminating the war. Only last week, they refused again to place
a specific time limit on the American presence in Indochina.
Well, in terms of appropriations, do you seriously
think that any, that except as a measure of desperation, that Congress would
ever use the appropriations authority when you actually have troops in the
field or under fire?
I think that the argument that we have to protect the
American boys, and therefore Congress could not terminate hostilities is
really an overkill as an argument. Congress can certainly pass a resolution
calling for termination to hostilities, with a particular time period...As a
matter of fact, I think they would Constitutionally have to, in terms of
giving the President an opportunity to protect American troops...
But this is an instance as it now stands where Congress
must single shot it, must in effect come up with a specific resolution,
doing this, doing that, and in effect telling the President how to run
things, without going through clear-cut machinery.
I don't quite understand the objection, because you
purport, as I understand it in the bill, to create a specific requirement
that Congress act in those cases.
I can well see the objection. I think that if I were
president, I would be very miffed if I started getting specific resolutions
telling me that I couldn't go into Laos, that I couldn't go into Cambodia. I
think on the other hand, though, that I would be quite willing to bow to a
specific requirement of Congress to pass judgment upon whether this
particular act, the overall act of hostility, was in accord with the
national interest. Now what is the objection to that?
I think there are several objections to that. One is I
believe that it does create an overly rigid delimitation in advance. And let
me give several examples. Let's take the Six Days War in reverse in the
Middle East, in which the existence of the State of Israel was
I think if that situation did arise, that the bill does
not authorize, as I read it, it does not authorize that kind of Presidential
assistance because there's no specific reference in the Middle East
Resolution to this particular act of Congress, the proposed Javits bill, as
required by that act.
To this end, if the President determines the necessity
thereof, the United States is prepared to use armed forces to assist any
nation or group of such nations requesting assistance against armed
aggression from any country controlled by international communism. This
seems rather specific to me. And that's not a treaty. That is a legislative
enactment, which is passed by both Houses of Congress and signed by the
You can correct me if I'm wrong, Mr. Reedy, but there
is another provision in the Javits bill which says that the specific
legislation which one is looking to for authorization must specifically
refer to the. Javits bill. The Middle East Resolution does not.
Not as I read the bill,
I have a copy in my pocket. Would you care for me to
read the bill, sir?
Professor Moore, let me ask this question. So much has
been made in the Congress about the publication of the Pentagon Papers as
revealing secret decision making and matters to which Congress did not have
access when its participation which you have emphasized was given, either in
appropriations bills or resolutions. Wouldn't it be possible that Mr.
Reedy's, Senator Javits' proposal could, by forcing a public airing, forcing
disclosure, build the kind of understanding, the kind of debate which could
make for national unity on a question of such importance?
I have the greatest respect for Senator Javits and the
other sponsors of the legislation, but with all due respect, I think that
there are other proposals which achieve precisely the aim which you have
suggested—namely, a greater information flow—which do not have the cost of
specific delimitation in advance. And the House Joint Resolution 1, which
has now been passed twice by the House, after specifically rejecting the
Javits proposal, is, I believe, one of those.
Mr. Reedy, you didn't know it, but I want to thank you
for giving me the last question. Professor Moore, thank you. Mr.
On the precise point that Mr. Palmieri and Mr. Reedy
have just raised and one on which Senator Javits took me up, the Middle East
Resolution, as it presently exists, clearly would not authorize, under the
Javits bill, action in the Mid-East. Professor Moore points out Section D of
the Javits bill, Section 3D in point of fact, says that any statutory
provisions, including a resolution of Congress, of course, must specifically
exempt the use of such armed forces from compliance with the provisions of
this act. And, of course, the Mid-East Resolution, as it now exists, doesn't
say anything about the Javits act, which isn't enacted in law now. There's
always the possibility that they'll get around to amending the Mid-East
Resolution. As you recall, the last war in that area was called the Six Day
War; one just hopes that the strait jacket that this bill would put our
executive power in doesn't inhibit the use of force before Congress gets
around to amending all the treaties on the books, as to which we might want
an amendment to provide for exactly the sort of situation we've been talking
about in the Mid-East.
Thank you, Mr. Mahoney. Mr. Reedy, now your chance for
I think we've heard quite a few efforts to confuse
which is essentially a question of the right of the people to participate in
the most solemn and the most important of all decisions: Will they go forth
and fight and die? We've heard quite a few legalisms, we have heard quite a
few references to some very, very past history which seems to me to have
very little relevance to the situation in which we find ourselves today. In
order to answer some of the legal questions and some of the historic
questions, I have here with me tonight Dean Robert McKay of the New York Law
That's the New York University Law School. Welcome,
I was going to correct that as I went along and point
out that not only is Dean McKay the Dean of the New York University Law
School, but also one of the nation's most distinguished legal scholars, and
an author of some considerably provocative books. Dean McKay, first of all,
do you see anything in the bill introduced by Senator Javits that would
inhibit the President in the legitimate exercise of his right to promote and
safeguard the interest of the United States?
No, sir, I see nothing in it at all that would have
that effect. Now, I understand that Mr. Mahoney, Professor Moore, and
Professor Rostow have taken a different position on that, but it seems to me
that the bill speaks for itself on these issues, and certainly the draftsman
of the bill, Senator Javits, has made it very clear here tonight exactly
what the bill was intended to do. If there's any difficulty at all in the
legislative language, that, of course, can be changed. I don't think there
is such difficulty, but if there is, there's nothing to impede getting a
sense of what this bill intends. And the sense of it "is perfectly clear,
and the sense of it would not impede the President in what he did in Cuba,
in what he might want to do in Israel, or any other steps that have been
taken in the past.
What, in your judgment, is the major factor that has
raised a need for this bill?
Well, I'd like to go back, in answering that, to what
Professor Rostow said. He said that there has been no Congressional erosion
of the war making power. And he gave us an erudite discussion of what had
happened in the 18th and 19th Centuries. That may have been true then, but
Congress at least has been a little careless in the last thirty years. In
the Korean War and the Vietnam War, they have not bothered to declare war,
but worked very clearly, then and now, in a war-like state. And it seems to
me that Congress has defaulted on its responsibility to exercise its Article
I war making powers. I'm not talking about just declaring war, but the
raising armies, the providing of the navy, the taking care of
appropriations, the supervision of the land forces, making of regulations
for disposition of troops. All those things are within the Congressional
power, and they are not really giving it proper attention when they let the
President have the sole lead and the sole hand.
Would you agree that such conflicts as Korea and
Vietnam are definitely in a different class than anything that may have
happened like the Barbary Pirates, or that would have happened in the
undeclared war against France, or the expedition into Mexico, or Vera
That's right. And that's why the issue is so important
now. This is uniquely a different kind of problem. In almost everything else
in our national government, the Congress proposes, the President exercises
the Executive power, and typically, the Supreme Court passes upon the
Constitutionality of what both of them have done. But in this one area, the
most important area in our national life, the Supreme Court has said it will
not pass upon the Constitutionality of these acts.
Could the founding fathers have foreseen the situation,
I think not. The kind of war that we have at the
present time is beyond the scope of anything that they considered. It seems
to me very important that the Congress and the President share this power
and that each exercise a veto over the other for the protection of all of
Let's go to Mr. Mahoney.
Dean McKay, what in your judgment would have been the
impact of the Javits bill on the Vietnam proceedings?
Well, I will stand with Senator Javits on that, as he
said very clearly this evening that it would have made it more likely to
terminate that war at an earlier stage, or to at least given it a different
cast. It would have given Congress a regular check instead of an
after-the-fact check at a time when...
Well, Congress passed the Tonkin Gulf Resolution. If
that Resolution had been sponsored under the bill, do you think it would
have not have passed?
It might have. We would then have a very clear
indication, under the kind of bill that Senator Javits proposed, of exactly
what the issues were. The President was not required at that time to make
the kind of report that the Javits bill would call for. The Congress did not
have the information that they should have had and that this bill would call
for. So that Congress acted in an uninformed way, which I think is also a
very regrettable thing.
Do you think the Korean War would have been handled
differently? Do you think President Truman, had he gone to Congress for a
resolution, would have been able to get one in 1950?
In Korea, I have no doubt that he would have. There was
a united will at that time and Congress went along with everything that the
President asked for at that time.
So the main historical examples that have been posed
here are examples that would have turned out pretty much the same way, and I
think that you said in your testimony...
No, I did not say that. I said that in Korea the answer
probably would have been the same; in Vietnam, I think it would have been
quite different. Vietnam is very important to all of us right now.
Well, I think it's very important to all of us. I think
there's an awful lot of Monday morning quarterbacking going on with respect
to it. I mean, Senator Javits, among others, voted for most of the
provisions that have perpetuated the Vietnam War, up until very
No, Mr. Mahoney, his bill does not propose it be
effective as to the Vietnam War.
I know it doesn't, but it's on the basis of the Vietnam
War experience that most of the arguments are being made for the bill.
I do not cast my argument on that basis. I cast it on
the necessity for the future. The Vietnam War may have told us the need for
this kind of a restraint, and that is, I think, an important lesson for the
future, and that's what I think is the great merit of the bill.
Well, you say that the bill would authorize the Cuban
action. What provision of the bill would do so?
Senator Javits has answered specifically that that was
it, and it seems to me that the language is clear in that effect,
Can we be clear about this? Excuse me, Professor McKay.
We are talking about, in terms of action, not the Bay of Pigs, the
quarantine, right? The Naval quarantine?
Yes. The provisions of the bill, I think would permit
that kind of action now. If there's any doubt of that, and I've just
consulted with Senator Javits on that point, then the question should go to
a redrafting of the bill to make that explicitly clear because, as he has
said, that is the intention of the bill; and I think that we can
constructively turn our efforts to making sure that the bill says exactly
Well, Dean, that raises an interesting question. We're
going to amend the bill so Cuba will be all right, and we say that action in
Israel isn't really stopped, but if action in Israel is stopped, we'll amend
the bill to take care of that. And Korea would have been authorized. By the
time we amend the bill to make it palatable, what's going to be left of the
Mr. Mahoney, you missed my point. The point is that the
President would have been authorized to take emergency action for a
thirty-day period in those circumstances, probably. He would have had to
report to Congress, and the Congress would have had the power at that time
to decide whether to continue or not, and then a six-month review after
that. That is a very different situation.
Are you happy with the provision in the bill that says
that if Congress does nothing, the President is stopped? I mean, when a
President vetoes a bill, he has to sign and say why, and this when Congress,
for instance, if they don't come into session and they come into session and
adjourn, that's enough. Do you regard that as responsible exercise of the
war making power?
On an issue of this consequence, I cannot think that
Congress would be so undisciplined, so uncourageous as to debate the issue
on the merits and not decide. A failure to act is a decision in this case
under the bill,
Well, Congress might not be so courageous, so
uncourageous as to take that course, and the President might not do a lot of
things, either, but the point is we're setting up a Constitutional
structure. If we can just rely on Congress good will and good judgment and
sense of patriotism to address itself to the issues, we don't need any of
So the question, I repeat, is whether this is a sound
procedure, a sound system that Congress can make a decision on a matter of
this important gravity by doing nothing.
Sir, I think there is no other practical way that I
have been able to devise. If you can devise one, I'd certainly be happy to
consider it, to allow the President and the Congress to share the power that
they both have...to allow each of them to restrain the other in this most
awful of all modern acts.
Professor, is it necessary to go beyond the President's
duty to disclose to the Congress in advance? Is it necessary to have to give
Congress power to redress the balance affirmatively in favor of
It seems to me that the bill allows them to be on a
parallel, that each of them has its defined function. The difficulty at the
present is that the functions are not defined. The Constitution left it
Professor Rostow says you're reshaping the balance;
you're not redressing it.
Yes, I know what he said. He said that what we need is
a strong, steady, calm assertion of the American will. That's exactly what I
do not like, the way it's been done by the last several Presidents.
One more question for Mr. Mahoney.
Dean, is there any other country in the world that
follows this kind of procedure where, that you know, were the Executive may
move, and the Congress, by doing nothing, can veto him in thirty days? Do
you know of any historical precedent or any other country in the world that
operates that way?
I know of no nation that has a system anything like
Well, do you know of anyone who would operate this way
in any sort of parallel?
I do not, but it's our problem, and we must solve it.
And I think this is a good way to solve it.
Dean McKay, thank you. Mr. Reedy, you have one minute
An effort has been made here to make this appear to be
an effort to punish somebody for the past. I think that would be a very
foolish way to proceed, and I'm quite convinced it is not what's in Senator
Javits' mind. Yes, it is true, definitely true, that it is the experience of
the Vietnam War that has lead to the introduction of this and other similar
resolutions, which raises a very interesting question. Do we want to repeat
that experience? Do we want to once more plunge our nation into a conflict
that is going to kill thousands, tens of thousands of our young men; that is
going to exhaust our economy; that is going to divide our people without any
opportunity whatsoever for the two branches of our government to decide, in
partnership, that we should go in.
Thank you, Mr. Reedy. Mr. Mahoney, to prove how neutral
I am, I'm going to give you a minute.
Mr. Reedy has said that we're talking legalisms when we
discuss this subject. We're not talking legalisms when we're looking at a
bill that would put the day-to-day conduct of the foreign policy of the
United States in a strait jacket. Professor Rostow described what happened
when there was a problem in the Mid-East and the President of the United
States, that quickly, turned the Fleet around towards the Mid-Eastern
straits, and that did the job. If he had to go to Congress, he'd have had a
major declaration of war situation with the Soviet Union. In 1937, the Young
Democrats adopted the Ludlow Resolution. It called for a national referendum
before war could be declared by the United States. I think the Javits bill
bespeaks the same mentality. We've had our problems with Vietnam, but we
can't adopt a bill that would put the foreign policy of the United States in
a strait jacket. That would prevent the kind of flexible day-to-day conduct
of our foreign policy that modern events demand.
Gentlemen, thank you both. Well, ladies and gentlemen
at home, now it's time for you to act...To express your views on tonight's
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Thanks now to our advocates, to our witnesses, and
thanks to you. I'm Victor Palmieri. We'll see you next week. Good
The Advocates as a program takes no position on the
issue debated tonight. Our job is to help you understand both sides more