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Listen to what else the great Senator from Ohio said:

In the long run, the question which the country must decide involves vitally not only the freedom of the people of the United States but the peace of the people of the United States. More and more, as the world grows smaller, we are involved in problems of foreign policy. If in the great field of foreign policy the President has the arbitrary and unlimited powers he now claims, then there is an end to freedom in the United States not only in the foreign field but in the great realm of domestic activity which necessarily follows any foreign commitments. The area of freedom at home becomes very circumscribed indeed."

We see it now vis-a-vis Vietnam, may I say by way of disgression.
Returning to the words of Senator Taft:

"If the President has unlimited power to involve us in war, then I believe that the consensus of opinion is that war is more likely. History shows that when the people have the opportunity to speak they as a rule decide for peace if possible."

That is why the senior Senator from Oregon, for more than 31⁄2 years, has dared to challenge this administration time and time again to send up to the Congress a war message. We all know why they do not. They do not dare to. We do not dare declare war, because the world would leave us.

Mr. FULBRIGHT. They have already left, most of them.

Mr. MORSE. The Senator from Arkansas is completely right in that observation. Senator Taft was quite right when, in this book of his, he pointed out that people can be counted upon to support peace. That is why I have argued against our undeclared war in Vietnam. That is why I have argued it is an unconstitutional war. It violates article I, section 8, of the Constitution which puts the vote power to declare war in the Congress and not in the President. Taft continues:

It shows that arbitrary rulers are more inclined to favor war than are the people at any time. This question has become of tremendous importance, perhaps greater than any particular problem of troops to Europe or the manner in which the Korean war shall be conducted.

Then on page 24 he states:

Furthermore, a document was submitted to Congress, entitled Powers of the President to Send the Armed Forces Outside the United States, dated February 28, 1951, which was printed, though not endorsed, by the Joint Committees on Foreign Relations and Armed Services of the Senate. This document contains the most unbridled claims for the authority of the President that I have ever seen written in cold print. In effect, the document asserts that whenever in his opinion American foreign policy requires he may send troops to any point whatsoever in the world, no matter what the war in which the action may involve us. The document also claims that in sending armed forces to carry out a treaty the President does not require any statutory authority whatever, and it does not recognize the difference between a self-executing treaty and one which requires, even by its own terms, congressional authority. It ends with the most sweeping claims for power:

"As this discussion of the respective powers of the President and the Congress in this field has made clear, constitutional doctrine has been largely molded by practical necessities. Use of the Congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance."

Let me say that the Senate cannot amend the Constitution of the United States by failing to follow its clauses. The Congress cannot amend the Constitution of the United States by nonobservance of its mandates. The requirement stays there as a matter of constitutional right of the American people. The requirement under article I, section 8, is there today even though both the President and the Congress have ignored it. Congress cannot destroy it, may I say, by ignoring it.

Senator Taft, quoting further from the document referred to, goes on to point out:

"The Constitutional power of the Commander in Chief has been exercised more often, because the need for armed international action has grown more acute. The long delays occasioned by the slowness of communications in the eighteenth century have given place to breathtaking rapidity in the tempo of history. Repelling aggression in Korea or Europe cannot wait upon Congres

sional debate. However, while the need for speed and the growth in the size and complexity of the armed forces have enlarged the area in which the pow ers of the Commander in Chief are to be wielded, the magnitude of presentday military operations and international policies requires a degree of Congres sional support that was unnecessary in the days of the nineteenth century." We turn now to Senator Taft's summation of this shocking doctrine. He says:

That seems a very gracious concession to Congress, Congress no longer has any power to act. It is simply given the right to support the President after the President has acted. I was shocked in the very beginning of this controversy by the speed with which blind partisans in the administration rushed to the defense of the proposition that the President can make war and warlike commitments. Senator Connally, the chairman of the Foreign Relations Committee, made the extraordinary assertion on the floor of the Senate:

"The scope of the authority of the President as Commander in Chief to send the Armed Forces to any place required by the security interests of the United States has often been questioned, but never denied by authoritative opinion."

Of course, the constitutional law books are full of the denial of that authority, and rightly so. As Taft says:

That certainly is a complete misrepresentation of the discussion of these constitutional powers which has taken place since the foundation of the na

tion.

He then states, on page 26:

Of course, the President has wide powers in foreign policy, but the framers of the Constitution provided expressly that only Congress could do certain things. Those powers are expressed in Section 8 of Article I.

The Senator documents his observation as follows:

Of course, Congress is given the power, and the exclusive power

"To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

"To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years."

That reflects a certain and definite suspicion of a possible desire on the part of some President to set up a great permanent military force. Further powers of Congress as stated in Section 8:

"To provide and maintain a navy.

"To make rules for the government and regulation of the land and naval forces."

There ar other powers, such as calling forth the militia and disciplining the militia.

The Constitution also provides that the President shall have the power to make treaties, but only by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur. The President's relationship to the armed forces is stated only in Section 2 of Article II of the Constitution "The President shall be Commander in Chief of the Army and Navy of the United States . . ."

There is no very definite limit-and I think it is admitted by every responsi ble authority who has discussed the problems-on the President's power t send troops abroad: he cannot send troops abroad if the sending of such troops amounts to the making of war. I think that has been frequently as serted; and whenever any broad statements have been made as to the Presi dent's power as Commander in Chief to send troops anywhere in the world the point has been made that it is always subject to that particular condition.

Perhaps no one has been quoted more on this general subject than has my father, who discussed this question in various lectures, articles, and books. M father has wide experience, as governor general of the Philippines, Secretar of War, and President of the United States. He never served in a legislativ body, and, if anything, I think he leaned toward the power of the Executive The clearest statement of the question, I believe, is contained in his article: the June 6, 1916, number of the Yale Law Journal, from which I quote:

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"When we come to the power of the President as Commander in Chief. i seems perfectly clear that Congress could not order battles to be fought on certain plan, and could not direct parts of the Army to be moved from part of the country to another. The power to declare war is given to Congres .. This is necessarily a limitation of the power of the President to order th

Army and the Navy to commit an act of war. It was charged against Prssident Polk that he had carried on a foreign war against Mexico before Congress had authorized it or declared it, and it is difficult to escape the conclusion that the act of President Wilson in seizing Veracruz was an act of war without congressional authority, at the time it was committed, though a resolution authorizing it was pending, and had passed one House and was passed in a very short time after the act by the other House, constituting a valid ratification.

"It is not always easy to determine what is an act of war. The President has the authority to protect the lives of American citizens and their property with the Army and the Navy. This grows out of his control over our foreign relations and his duty to recognize as a binding law upon him the obligation of the Government to its own citizens. It might, however, be an act of war if committed in a country like England or Germany or France which would be unwilling to admit that it needed the assistance of another government to maintain its laws and protect foreign relations, but would insist that injuries of this sort must be remedied through diplomatic complaints and negotiations. ... Of course, the President may so use the Army and Navy as to involve the country in actual war and force a declaration of war by Congress. Such a use of the Army and Navy, however, is a usurpation of power on his part. (Italics mine.)"

Some may feel that if the President can do certain things there is no sense in arguing that he has no right to do them. But the division and limitation of powers is the very basis of our constitutional system, and decisions regarding the proper limits of such powers affect the validity of many other actions, such as the right of Congress to pass legislation to restrain the President's authority to send troops abroad in such a way as to involve the country in war. True, the President perhaps cannot be prevented from usurping power, but we can only presume the President will follow constitutional laws passed by the people's representatives.

Most of the cases which have been cited as authority for the President sending troops abroad are cases where the use of our troops was limited to the protection of American citizens or of American property.

The Boxer Rebellion is frequently cited; but in that case troops were sent into China because the legations in Peking were beseiged and the legitimate Chinese Government was unable to defend them against the rebellious Boxers. So the various nations sent their troops there, in order to rescue those who were in the legations. That was a clear effort to protect American lives, to protect American diplomatic lives which were threatened contrary to the law of nations; and certainly it was not an act which would necessarily involve us in war.

It is also interesting to note that Senator Taft called attention to Abraham Lincoln's opposition to the warmaking policies that President Polk followed in making war against Mexico. Many American historians and constitutional authorities have been highly critical of the involvement of the United States in a war with Mexico by President Polk.

Senator Taft, in commenting on the excessive use of Presidential power by President Polk, wrote as follows:

The case of the Mexican rebellion is referred to, and it was referred to by my father, who said that President Polk's right was challenged. It was challenged by a very distinguished American, Abraham Lincoln, who on February 15, 1848, wrote his law partner with reference to Polk's use of the Army against Mexico:

"Allow the President to invade a neighboring nation 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 purposes, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect. If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him 'I see no probability of the British invading us,' but he will say to you, ‘Be silent: I see it, if you don't.'

Lincoln said further:

"The provision of the Constitution giving the war-making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if

not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no man should hold the power of bringing this oppression upon us."

On page 30 of the book, Senator Taft criticized the action of President Theodore Roosevelt in seizing Panama. He also charged President Franklin Roosevelt with usurping authority in sending American troops to Iceland to replace British troops in 1941. Listen to his words:

I do not believe history will defend as lawful the action of President Theodore Roosevelt in seizing Panama.

On the other hand, that action was certainly not the making of war.

The administration pamphlet to which I have referred cites the case of Iceland and says that none of the constitutional restrictions was regarded by President Roosevelt "as a limitation on his power to use the Navy in the North Atlantic Area or send troops to Iceland and Greenland and other places." My own view is that President Roosevelt clearly usurped authority when he sent American troops to Iceland to replace the British troops there in 1941, and I made a vigorous protest at the time on the floor of the Senate and was supported also by Senator Danaher. I quote from the speech which I made on July 10, 1941, and which, as far as I remember, was answered by no one except Senator Connally.

"Mr. President, on Monday the President of the United States notified the Senate that forces of the United States Navy had already arrived in Iceland in order to supplement, and eventually to replace the British forces now stationed there. This action was taken in accordance with an understanding reached by the President with the Prime Minister of Iceland, frankly inspired, however, according to the Prime Minister, by the British Minister to Iceland, who explained to him that British forces in Iceland were required elsewhere, and suggested that he apply to the United States for forces. The Prime Minister stressed the fact that the United States forces must be strong enough to meet every eventuality; and the President promised that the Government of the United States would immediately send troops, apparently including the United States Army as well as the Navy, to supplement, and eventually to replace, the British forces now there. Judging from the various press reports, it is likely that 80,000 American boys are in course of being sent to Iceland 2400 miles from any American territory, and substantially a part of the continent of Europe.

"In my opinion, the President has no legal or constitutional right to send American troops to Iceland. It is not an agreeable task for me to question the authority of the President to take any action which he has taken in the name of the Government of the United States; but I believe it would be most unfortunate if the Senate of the United States should acquiesce without protest in acts of the President which nullify for all time the constitutional authority distinctly reserved to Congress to declare war.

"It would be a tremendous stretching of the Constitution to say that without authority from Congress the President of the United States can send hundreds of thousands of American soldiers to Europe when a war is raging over that entire Continent, and the presence of American troops would invariably lead to war. The President cannot make aggressive war. Neither can he intervene in a war between two other nations, because such intervention, even though it does not immediately involve a physical attack on one of the combatants, is clearly the making of war.

"There has been no attack on the United States and no threat of attack. The action of the President is not only beyond the powers which the Constitution has granted to him, but it is a deliberate violation of his pledge to the American people."

In this chapter on Presidential and congressional power in foreign policy, Senator Taft had the following to say about what he considered to be the lack of the constitutional right of a President to send troops abroad in such a way as to intervene in a war between nations. I read the following paragraphs starting on page 31 of the book:

The speech which I made in the Senate on March 29, 1951, refers to various supporting statements by J. Reuben Clark, Assistant Secretary of State under the Hoover administration, by Quincy Wright, professor at the University of Chicago, and by Attorney General George E. Wickersham. We have perhaps even more eminent authority to the effect that the President has no right to

send troops abroad in such a way as to intervene in a war between two nations. When the Germans broke through in France in June 1949 Mr. Roosevelt gave every encouragement to France and England to go on fighting. The end of his letter of June 15, 1940, to Premier Reynaud is enlightening, and I quote:

"In these hours which are so heart-rending to the French people and yourself, I send you the assurances of my utmost sympathy, and I can further assure you that so long as the French people continue in defense of their liberty, which constitutes the cause of popular institutions throughout the world, so long will they rest assured that materiel and supplies will be sent to them from the United States in every increasing quantities and kind.

"I know that you will understand that these statements carry with them no implication of military commitments. Only the Congress can make such commitments.

"FRANKLIN D. ROOSEVELT."

Yet Harry S. Truman in the case of Korea undertook to do exactly the thing which Franklin Roosevelt said he had no power to do.

In the case of Korea it was claimed that the intervention could take place under the United Nations Charter on the call of the Security Council. Of course the Security Council never acted under Articles 41 and 42 of the United Nations Charter, and even if it had done so the obligation to send troops is clearly limited by Article 43. That Article provides that troops can only be called for when an agreement has been entered into with the Security Council specifying the number and character of the assistance to be furnished. No such agreement has ever been entered into. The United Nations Participation Act of 1945, approved by President Truman, also made it clear that an agreement which required the providing of military aid must be subsequently approved by Congress, and, of course, it never has been. Not only that, but President Truman sent a cable from Potsdam when the United Nations Charter was under consideration, in which he said: 'When any such agreement or agreements are negotiated, it will be my purpose to ask the Congress by appropriate legislation to approved them.' The charter was adopted largely on that assurance, but now the President's claims are far beyond what they were then.

The State Department itself admits that the action of the Security Council in the Korean case was only a recommendation under Article 39. If the President can carry out every recommendation of the Security Council or the General Assembly supported by the vote of the American representative whom he can direct, then he has almost unlimited power to do anything in the world in the use of either troops or money. The Security Council might recommend that the nations should rebuild the canals on the Tigris and Euphrates and establish a vast Garden of Eden in the Kingdom of Iraq. According to the argument made, the President would then have power to use all American forces to establish such an economic project. On the same theory, he could send troops to Tibet to resist Communist aggression or to Indo-China or anywhere else in the world without the slightest voice of Congress in the matter. If that could be the effect of an international treaty, we had better watch closely the approval of any such treaty in the future. Of course, it is not.

My conclusion, therefore, is that in the case of Korea, where a war was already under way, we had no right to send troops to a nation, with whom wę had no treaty, to defend it against attack by another nation, no matter how unprincipled that aggression might be, unless the whole matter was submitted to Congress and a declaration of war or some other direct authority obtained. The question of sending troops to Europe is certainly much more complicated. There is no doubt about the President's power to send troops to occupied Germany. There is no question that he can send them if he wants to do so, as Commander in Chief of the Army and Navy. Whether Congress could limit the number to be sent is a point which may be open to question. However. certainly the President has the power to do so if Congress does not act. I think he can station troops in a friendly country if such country asks that the troops be sent and if there is no imminence of attack and if they are stationed there for some possible convenience in repelling a general attack upon the United States itself.

Particularly, it seems to me that the President of the United States may station air forces and may send the Navy to odd places throughout the world,

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