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contains virtually none of the major questions of war and peace in the nuclear age. Before turning to these critical questions, which go the heart of the current constitutional crisis a word is in order about the limited areas of foreign policy which are still governed by the legislative process.
Foreign aid provides the closest thing we have to an annual occasion for a general review of American foreign policy. It provides the opportunity for airing grievances, some having to do with economic development, most of them not, and for the discussion of matters of detail which in many cases would be better left to specialists in the field. It also provides the occasion for a discussion of more fundamental questions, pertaining to America's role in the world, to the areas that fall within and those which exceed its proper responsibilities.
In the last few years the Congress has shown a clear disposition to limit those responsibilities and has written appropriate restrictions, mostly hortatory, into the foreign aid legislation. Only as it has become clear that the executive is disinclined to comply with many of our recommendations has it been found necessary to write binding restrictions into the law. These mandatory restrictions, it is true, impose a degree of rigidity on the executive and constitute a regrettable Congressional incursion on matters of the day-to-day conduct of policy. Here, however, we encounter the overlap in practice between the shaping and conduct of policy and, in order to exert our influence on the one, where it is desirable, we have also had to exert it on the other, where it is not. Were the executive more responsive to our general recommendations-as expressed in committee reports, conditional proscriptions, and general legislative history-it would be possible for us to be more restrained in our specific restrictions.
The matter, at its heart, is one of trust and confidence and of respect of each branch of the government for the prerogatives of the other. When the executive tends to ignore Congressional recommendations, intruding thereby on Congressional prerogative, the result is either a counter-intrusion or the acceptance by the Congress of the loss of its prerogatives. Thus, for example, the persistent refusal of the executive to comply even approximately with Congressional recommendations that it limit the number of countries receiving American foreign aid has caused the Foreign Relations Committee to write numbers into its current bill, proposing thereby to make recommendations into requirements. The price of the flexibility which is valued by the executive is, or certainly ought to be, a high degree of compliance with the intent of Congress.
There are occasions when the legislative process works almost as it ideally should, permitting of the rendering of advice and consent on the matter at hand and also of the formation and expression of the Senate's view on some broader question of the direction of our foreign policy. Such was the case with the test ban treaty in 1963. In the course of three weeks of public hearings and subsequent debate on the floor, the Senate assured itself of the safety of the proposed commitment from a military point of view and at the same time gave its endorsement to the broader policy which has come to be known as "building bridges" to the east. Similarly, the ratification earlier this year of the Soviet consular treaty, which, but for an unexpected controversy might have been treated as routine business, became instead the occasion for a further Senate endorsement of the bridge building policy.
III. ADVICE AND CONSENT
The focus of the current constitutional problem-one might even say crisis -lies outside of the legislative process, in the great problems of war and peace in the nuclear age. It is in this most critical area of our foreign relations that the Senate, with its own tacit consent, has become largely impotent. The point is best illustrated by concrete examples. Permit me to recall some recent crises and the extremely limited role of the Senate in dealing with them :
At the time of the Cuban missile crisis in October 1962, many of us were in our home states campaigning for re-election. On the basis of press reports and rumors we had a fairly accurate picture of what was happening, but none of us, so far as I know, were given official information until after the Administration had made its policy decisions. President Kennedy called the Congressional leadership back for a meeting at the White House on Monday, October 22, 1962. The meeting lasted from about 5 p.m. to about 6 p.m.; 7 p.m. Presi. dent Kennedy went on national television to announce to the country the deci. sions which had of course been made before the Congressional leadership were called in. The meeting was not a consultation but a briefing, a kind of courtesy or ceremonial occasion for the leadership of the Congress. At that meeting, the senior Senator from Georgia and I made specific suggestions as to how the crisis might be met; we did so in the belief that we had a responsibility to give the President our best advice on the basis of the limited facts then at our command. With apparent reference to our temerity in expressing our views, Theodore Sorensen in his book on President Kennedy described this oc casion as "the only sour note" in an otherwise flawless process of decision making. It is no exaggeration to say that on the one occasion when the world has gone to the very brink of nuclear war-as indeed on the earlier occasion of the Bay of Pigs—the Congress took no part whatever in the shaping of American policy.
The Dominican intervention of April 1965 was decided upon what a comparable lack of Congressional consultation. Again, the leadership were summoned to the White House, on the afternoon of April 28, 1965, and told that the Marines would be landed in Santo Domingo that night for the express purpose of protecting the lives of American citizens. No one expressed disapproval. Had I known that the real purpose of our intervention was the defeat of the Dominican revolution, as subsequently because clear in the course of extensive hearings before the Senate Foreign Relations Committee, I would most certainly have objected to massive American military intervention.
When, in the wake of the Dominican hearings, I publicly stated my criti. cisms of American policy, there followed a debate not on the substances of my criticisms but on the appropriateness of my having made them. The question therefore became one of the proper extent and the proper limits on public discussion of controversial matters of foreign policy. The word “consensus" was then in vogue and so extensive had its influence become that there seemed at the time to be a general conviction that any fundamental criticism of American foreign policy was Irresponsible if not actually unpatriotic. This was the first of many occasions on which no one questioned the right of dissent but many people had something to say about special circumstances making its use inappropriate. No one, it seems, ever questions the right of dissent; it is the use of it that is objected to.
I tried at the time of Dominican controversy to formulate my thoughts on Senatorial responsibility in foreign policy. I recall them here not for purposes of reviving the discussion of those unhappy events but in the hope of contributing to the work of this Subcommittee. I expressed these thoughts in a letter to President Johnson, dated September 16, 1965, and accompanying the speech on the Dominican Republic which I made that day. The letter read in part:
"DEAR MR. PRESIDENT: Enclosed is a copy of a speech that I plan to make in the Senate regarding the crisis in the Dominican Republic. As you know, my ('ommittee has held extensive hearings on the Dominican matter; this speech contains my personal comments and conclusions on the information which was brought forth in the hearings
“As you will note, I believe that important mistakes were made. I further believe that a public discussion of recent events in the Dominican Republic, even though it brings forth viewpoints which are critical of actions taken by your Administration, will be of long-term benefit in correcting past errors, helping to prevent their repetition in the future, and thereby advancing the broader purposes of your policy in Latin America. It is in the hope of assisting you toward these ends, and for this reason only that I have prepared my remarks.
"Public-and, I trust, constructive criticism is one of the services that a Senator is uniquely able to perform. There are many things that members of your Administration, for quite proper reasons of consistency and organization, cannot say, even though it is in the long term interests of the Administration that they be said. A Senator, as you well know, is under no such restriction. It is in the sincere hope of assisting your Administration in this way, and of allvancing the objectives of your policy in Latin America, that I offer the enclosed remarks."
I developed these thoughts further in a speech in the Senate on October 22, 1965. It read in part :
I believe that the chairman of the Committee on Foreign Relations has a special obligation to offer the best advice he can on matters of foreign policy ; it is an obligation, I believe, which is inherent in the chairmanship, which takes precedence over party loyalty, and which has nothing to do with whether the chairman's views are solicited or desired by people in the executive branch.
"... I am not impressed with suggestions that I had no right to speak as I did on Santo Domingo. The real question, it seems to me is whether I had the right not to speak."
Mark Twain said the same thing in plainer words: “It were not best that we should all think alike; it is difference of opinion that makes horseraces."
There are some fundamental and disturbing questions about the way in which we endure controversy in this country and they go to the heart of the constitutional matters which the Subcommittee is considering. No one objects to a little controversy around the edges of things to quibbings over detail or to hollow mountings about morality and purpose provided they are hollow enough. It is when the controversy gets down to the essence of things to basic values and specifics major actions to questions of whether our society is healthy or sick fulfilling its promise or falling short that our endurance is severely taxed.
Alexis de Tocquieville wrote: "I know of no country in which there is so little independence of mind and real freedom of discussion as in America. Profound changes have occurred since democracy in America first appeared and set it may be asked whether recognition of the right of dissent has gained substantially in practice as well as in theory” And as to democracy in general he wrote “... The smallest approach irritates its sensibility and the slightest joke that has any foundation in truth renders it indignant; from the forms of its language up to the solid virtues of its character everything must be made the subject of encomium No writer whatever be his eminence can escape paying his tribute of adulation to his fellow citizens" 1 [Footnotes at end of exhibit).
Until and unless we overcome the disability of intolerance our democratic processes cannot function in full vigor and as they were intended to function by the framers of the ('onstitution. The vitality of advice and consent in the Senate is more than a matter of executive-legislative relations. It has to do with our national character and our national attitudes with our tolerance of deep unorthodoxy as well as of normal dissent, with our attitudes toward the protests of students as well as the criticisms of Senators.
IV. RESOLUTIONS AND “CONSULTATIONS"
As I said at the beginning of my statement, two new devices have been invented-more accurately, two old devices have been put to a new use--for the purpose of creating an appearance of Congressional consultation where the substance of it is lacking. I refer to the joint resolution and the Congressional briefing session. Arranged in haste, almost always under the spur of some real or putative emergency, these resolutions and White House briefings serve to hit the Congress when it is down, getting it to sign on the dotted line at exactly the moment when, for reasons of politics or patriotism, it feels it can hardly refuse.
The Gulf of Tonkin resolution, so often cited as an unqualified Congressional endorsement of the war in Vietnam, was adopted on August 7, 1964, only two dass after an urgent request from the President. It was adopted after only perfunctory committee hearings and a brief debate with only two Senators dissenting. It was a blank check indeed, authorizing the President to "take all necessary steps including the use of armed force" against whatever he might judge to constitute aggression in southeast Asia.
The error of those of us who piloted this resolution through the Senate with such undeliberate speed was in making a personal judgment when we should have made an institutional judgment. Figuratively speaking, we did not deal with the resolution in terms of what it said and in terms of the power it would vest in the Presidency; we dealt with it in terms of how we thought it would be used by the man who occupied the Presidency. Our judgment turned out to be wrong, but even if it had been right, even if the Administration had applied the resolution in the way we then thought it would, the abridgment of the legislative process and our consent to so sweeping a grant of power was not only a mistake but a failure of responsibility on the part of the Congress. Had we debated the matter for a few days or even a week or two, the resolution most probably would have been adopted with as many or almost as many votes as it actually got, but there would have been a legislative history to which those of us who disagree with the use to which the resolution has been put could now repair. The fundamental mistake, however, was in the giving away of that which was not ours to give. The war power is vested by the Constitution in the Congress, and if it is to be transferred to the executive, the transfer can be legitimately effected only by constitutional anendment, not by inadvertency of Congress.
The Congress has lost the power to declare war as it was written into the Constitution. It has not been so much usurped as given away, and it is by no means certain that it will soon be recovered. On February 15, 1848, Abraham Lincoln, then a Member of the House of Representatives, wrote a letter to a man called William H. Herndon, contesting the latter's view that President Polk had been justified in invading Mexico on his own authority because the Mexicans had begun the hostilities. “Allow the President to invade a neighboring nation," wrote Lincoln, “whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect after you have given him so much as you propose.”
The Senate, I believe, is becoming aware of the dangers involved in joint resolutions such as the Gulf of Tonkin resolution and earlier resolutions pertaining to Taiwan, Cuba and the Middle East. This awareness was demonstrated by the Senate's refusal to adopt the sweeping resolution pertaining to Latin America requested by the Administration shortly before the meeting of the American presidents at Punta del Este last April. That resolution, which would have committed the Congress in advance to the appropriation of larger new sums of money for the Alliance for Progress, was neither urgent nor necessary, it was indeed no more than a convenience and a bargaining lever for the Administration. Its rejection had nothing to do with the Latin American policy of the United States; indeed, it was not the substance of the resolution but the unusual procedure which caused many of us to oppose it. Still less was the rejection of the resolution a matter of “pique" or "frustration," as was alleged by members of the Administration. It was rather a tentative assertion by the Senate that it has come to be doubtful about the granting of blank checks. I hope that it foreshadows further demonstrations on the part of the Congress of a healthy skepticism about hasty responses to contrived emergencies. I hope that it foreshadows a resurrection of continuing debate and of normal deliberative processes in the Senate.
No less defective than the joint resolution as a means of Congressional consultation is the hastily arranged "consultation"--really a briefing-either in committee or at the White House. There is indeed a psychological barrier to effective consultation on the President's own ground. The President is, after all, chief of state as well as head of government and must be treated with the deference and respect due him as chief of state as well as head of government and must be treated with the deference and respect due him as chief of state. One does not contradict kings in their palaces or Presidents in the White House with the freedom and facility with which one contradicts the king's ministers in parliament or the President's cabinet members in committee. That indeed is the value and purpose of our Congressional committee system. It permits us to communicate candidly with the President as political leader without becoming entangled in the complications or protocol which surrounds his person. I conclude, therefore, that any meaningful consultation with the Congress must take place on the Congress's own ground, with representatives of the President who can be spoken to in candor and who will speak to us in candor,
They do not always do that, and that is the next problem I would cite. Again and again, representatives of the executive have come before the Foreign Relations Committee to tell us in closed session what we have already read in our morning newspaper. Again and again, they have come not to consult with us but to brief us, to tell us what they propose to do or to try to put a good face on something they have already done. One recent witness devoted a large part of his presentation to an endorsement of the idea of consultation without ever getting around to any actual consulting. At a recent meeting on the Middle Eastern crisis the Administration's witness was unwilling to answer either yes or no to the question of whether he was prepared to assure the Committee that the President would not take the United States into war in the Middle East without the consent of Congress.
Meaningful consultation would consist first of a presentation of provisional views on the part of the Administration and then of a presentation of the views of the members of the Committee, with the Administration witness performing the extremely important function in the second phase of listening—listening with an open mind and with an active regard for the fact that, however little he may like it, the men he is listening to are representatives of the people who share with the excutive the constitutional responsibility for the making of American foreign policy.
The problem is one of attitudes rather than of formal procedures. The critical question is not whether State Department officials dutifully report Administration acts to Congressional committees or telephone interested Senators to tell them that American planes are en route to the Congo. The question is whether they respond to Congressional directives and recommendations by asking themselves “How can we get around these?" or by asking themselves “How can we carry them out?". The latter, to be sure, can be awkward and irksome of the executive, but that is the kind of system we have. As the politi(al scientists Edward S. Corwin has written : "The verdict of history in short is that the power to determine the substantive content of American foreign policy is a divided power, with the lion's share falling usually to the President, though by no means always.” 2 Our legitimate options are to comply with the system or to revise it by the means spelled out in the Constitution but not to circumvent it or subvert it.
*Consultations" which are really only briefings, and resolutions like the Tonkin Gulf resolution, represent no more than a ceremonial role for the Congress. Their purpose is not to elicit the views of Congress but to avoid controversy of the kind President Truman experienced over the Korean War. They are devices therefore not of Congressional consultation but of executive convenience. Insofar as the Congress accepts them as a substitute for real participation, it is an accomplice to a process of illicit constitutional revision.
Some political scientists do not even pretend that there is a role for Congress in the making of foreign policy in the nuclear age. They argue that the authority to declare war has become obsolete and that checks and balances are now provided by diversities of opinion within the executive branch. "This,” in the words of the American diplomatic historian Ruhl Bartlett, “is an argument scarcely worthy of small boys, for the issue is not one advice or influence. It is a question of power, the authority to say that something shall or shall not be done. If the president is restrained only by those whom he appoints and who hold their positions at his pleasure. There is no check at all. What has happened to all intents and purposes, although not in form and words, is the assumption by all recent presidents that their constitutional right to conduct foreign relations and to advise the Congress with respect to foreign policy shall be interpreted as the right to control foreign relations.” 3
V. TREATIES AND COMMENTS
So widespread are American commitments in the world, and so divers are the methods and sources which are said to make for a commitment, that a great deal of confusion has arisen as to what is required to make a formal commitment to a foreign country. Does it require a treaty ratified with the consent of the Senate? or can it be accomplished by executive agreements? or by simple Presidential declaration? or by a declaration or even a statement made in a press conference by the Secretary of State? The prevailing view seems to be that one is as good as another, that a clause in the transcript of a press conference held by Secretary Dulles in 1957 is as binding on the American Government today as a treaty ratified by the Senate.
If treaties are no more than one of the available means by which the United States can be committed to military action abroad, as Secretary Rusk believes, if the executive is at liberty to commit American military forces abroad in the absence of a treaty obligation as in the case of Vietnam, or in violation of a treaty obligation as in the case of the Dominican Republic, why do we bother