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 yet 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 Constitution. 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 days 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 amendment, 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 neeessary, 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 political 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

with treaties at all? As things now stand, their principal use seems to be the lending of an unusual aura of dignity or solemnity to certain engagements such as the test ban treaty and the outer space treaty.

In addition to the general denigration of treaties, there has developed a widespread attitude, at least on the part of what might be called the foreign policy "establishment," that it is improper for the Senate to reject treaties or attach reservations to them once they have been negotiated. The power of the Senate to accept, reject or amend treaties is of course acknowledged, but it is regarded not as a legitimate function but as a kind of naked power the use of which under any circumstances would be irresponsible. There seems to be a kind of historical memory at work here; Versailles, like Munich, has conveyed more lessons than were in it.

There appeared in the New York Times on March 10, 1967, an interesting and significant editorial commenting on questions that were then being raised in the Senate about the Soviet consular treaty and the outer space treaty. The Times commented as follows:

"A treaty is a contract negotiated by the executive branch with the government of one or more other countries. In the process there is normally hard bargaining and the final result usually represents a compromise in which everyone has made concessions. Thus when the Senate adds amendments or reservations to a treaty, it is unilaterally changing the terms of a settled bargain. The practical effect of such action is really to reopen the negotiations and force the other party or parties to re-examine their previously offered approval.

"Every time the Senate exercises this privilege it necessarily casts doubt upon the credibility of the President and his representatives and weakens the bargaining power of the United States to the international arena. The Senate power to do this is unquestioned, but it is equally unquestionable that this power is best used only to express the gravest of concerns, especially in a period of crisis such as is posed by the Vietnam war and efforts to end it."

My attention was arrested by the assertion that a treaty, once negotiated by the executive was a "settled bargain." I had supposed that under our Constitution a treaty was only a tentative bargain until ratified with the consent of the Senate.

Returning to my earlier point, the recent crisis in the Middle East reveals the prevailing confusion as to what constitutes a binding obligation on the United States.

In the days preceding the recent Arab-Israeli war there was a good deal of discussion of American responsibilities in the Middle East marked by a prevailing assumption that the United States was "committed" to defend Israel against any act of aggression. As a signatory to the United Nations Charter, which incidentally was ratified by the Senate as a treaty, the United States is indeed obligated to support any action which the United Nations might take in defense of a victim of aggression. The cited sources of the alleged American "commitment," however, were not the United Nations Charter but a series of policy statements, including President Truman's declaration of support for the independence of Israel in 1948, the Anglo-French-American Tripartite Declaration of 1950 pledging opposition to the violation of frontiers or armistice lines by any Middle Eastern state, a statement by President. Eisenhower in January 1957 pledging American support for the integrity and independence of Middle Eastern nations, a statement by Secretary of State Dulles in February 1957 stating that the United States regarded the Gulf of Aqaba as an international waterway, a press conference statement in March of 1963 by President Kennedy pledging American opposition to any act of aggression in the Middle East, and a reiteration by President Johnson in February 1964 as American support for the territorial integrity and political independence of all Middle Eastern countries.

The foregoing are all statements of policy, not binding commitments in the sense that a treaty ratified by the Senate is a binding commitment. If they are binding and if they were interpreted as requiring the United States to take unilateral action to maintain the territorial integrity of all Middle Eastern states. we would now be obligated forcibly to require Israel to restore all of the territory which she has seized from her Arab neighbors. We are, however, not so obligated. Our only binding commitment in the Middle East is our obligation

to support and help implement any action that might be taken by the United Nations. In the absence of such action, we are not bound, not, that is, unless statements in Presidential press conferences are as binding upon the United States as treaties ratified by the Senate.

VI. RESTORING CONGRESSIONAL PREROGATIVE

The Foreign Relations Committee has been experimenting in the last two years with methods which it is hoped will help restore the Senate to a significant and responsible role in the making of American foreign policy. Principally, the Committee has made itself available as a public forum for the airing of informed and diverse opinion on both general and specific aspects of American foreign policy. We have invited distinguished professors, scholars, diplomats and military men to talk with the Committee on a wide variety of matters, including the Vietnamese war, American policy toward China, American relations with its European allies, American relations with the Soviet Union and Eastern Europe, and even certain experimental subjects such as the psychological aspect of international relations. In the spring of 1967 the Committee heard testimony by such distinguished persons as George Kennan, Edwin O. Reischauer and Harrison Salisbury in a series of hearings on the "responsibilities of the United States as a global power."

It is by no means clear that public hearings of the kind which have been held in these last two years will prove to be a viable and effective means of bringing Congressional influence to bear on the making of foreign policy. The hearings have been, I emphasize, experimental. They do, however, suggest the possibility of a reinvigorated Senate participating actively and responsibly in the shaping of American foreign policy, in the articulation of the values in which we would have our foreign policy rooted and the purposes which we would have it serve.

I am reasonably confident that the Senate Foreign Relations Committee, by making itself available as a forum of tree and wide-ranging discussion, can serve valuable democratic purposes: it can diminish the danger of an irretrievable mistake; it can reduce the likelihood of past mistakes being repeated; it can influence policy both current and future; it can make a case for history and defend America's good name; it can help to expose old myths in the light of new realities; it can provide an institutional forum for dissenters whose dissent might otherwise be disorderly; and, by continuing discussion of crises like the war in Vietnam, it may help us shape the attitudes and insights to avoid another such tragedy in the future.

Free and open discussion has another function, more difficult to define. It is therapy and catharsis for those who are dismayed; it helps the reassert traditional values and to clear the air when it is full of tension. A man must at times protest, not for politics or profit but simply because his sense of decency is offended, because something goes against the grain.

On the Senate floor as well as in the Foreign Relations Committee, vigorous and responsible discussion of our foreign relations is essential both to the shaping of a wise foreign policy and to the sustenance of our constitutional system. The criteria of responsible and constructive debate are restraint in matters of detail and the day-to-day conduct of foreign policy, combined with diligence and energy in discussing the values, direction and purposes of American foreign policy. Just as it is an excess of democracy when Congress is overly aggressive in attempting to supervise the conduct of policy, it is a failure of democracy when it fails to participate actively in determining policy objectives and in the making of significant decisions.

A Senator has the obligation to defend the Senate as an institution by upholding its traditions and prerogatives. A Senator must never forget the Presidency when he is dealing with the President and he must never forget the Senate when he is talking as a Senator. A Senator is not at perfect liberty to think and act as an individual human being; a larg part of what he says and what he does must be institutional in nature. Whoever may be President, whatever his policies, however great, the confidence they may inspire, it is part of the constitutional trust of a Senator to defend and exercise the advice and consent function of the Senate. It is not his to give away.

Mr. RUSSELL. Mr. President, will the Senator yield?
Mr. FULBRIGHT. I yield to the Senator from Georgia.