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 Party.

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 authorization.

President Kennedy asked for a Congressional resolution confirming that he already had all necessary authority to act in the Cuban Missile Crisis.

President Johnson called the Tonkin Gulf Resolution, authorizing the President to act against North Vietnam "desirable, but not necessary."

President Nixon expressed the belief that he alone has the responsibility to define and protect the security interests of the United States.

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 hostilities.

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 the government.

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.

Thank you,

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 about it?

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 Congress.

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 Cuba.

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 Vietnam?

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 Vietnam?

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 the world.

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 correct?

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 Congress.

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, I'll...

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 they?

They did.

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 there, too.

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 effective remedy.

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 on.

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 hostilities?

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 now.

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 prevent that?

No, it is not.

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 Advocates.

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 judgment?

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 situation?

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 resolved.

Professor, we'll go to Mr. Reedy for cross-examination,

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.

Hundreds?

I haven't any idea.

Tens? Was anybody conscripted to fight in that war?

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 powers?

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 convention.

Yes, but

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 Resolution...

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?

I certainly do.

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 authority.

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 so.

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 threatened.

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 President.

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. Mahoney...

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 rebuttal.

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 School.

That's the New York University Law School. Welcome, Dean McKay.

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 Cruz?

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, Dean McKay?

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 us.

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 recently.

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 that.

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 bill?

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 this.

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 Congress.

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 undefined.

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 ours,

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 to summarize.

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 question. Should Congress limit the President's war powers? What do you think? Send us your "yes" or "no" vote on a letter or postcard. We'll tabulate your views; we'll make them known to members of Congress, the President, to others concerned with this issue. Every one of your votes is important. Remember that address: The Advocates, Box 1971, Boston 02134.

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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 night.

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