situations? Wouldn't that lead to less confusion and less chance of disagreement and confusion in time of crisis between the two bodies? Mr. HANSELL. Obviously, it depends to a very large extent on what is done and how it is done. If the effort were to undertake an exhaustive or exclusive enumeration, I think that would probably be a will-o'-the-wisp, a fruitless pursuit. First of all, it would either have to be an extensive enumeration that would be pointless and would probably wind up as a grant of authority beyond that which I think is intended, or if it were something short of that, my guess is that we would be involved in endless discussion as to where you do in fact try to draw very difficult lines.

Id. 193-194.

Senator JAVITS. I think you have a right to know that when section 3 says, "The President in every possible instance shall consult with Congress before introducing Armed Forces into hostilities..." and so on, you have a right to know who is the Congress, as far as that consultation is concerned.

Mr. HANSELL. I might add, Senator, that Mr. Bennet . . . would have some very constructive suggestions that you might want to take into account.

Senator JAVITS. I certainly would. Mr. Bennet, why don't you furnish them for the record?

*

[The information requested by Senator Javits appears below in the form of a letter dated August 2, 1977, from Assistant Secretary Bennet to Chairman John Sparkman of the Senate Committee on Foreign Relations:]

During the course of testimony on the War Powers Act before your committee on Friday, July 15th, Senator Javits solicited my views on ways in which Congress might streamline its crisis consultations procedures. I would like to respond on a personal basis rather than as a representative of the executive branch because any decision regarding such procedures should be Congress's alone.

At present there is no regular system in either House for consultation in foreign policy crisis situations. In practice, the State Department notifies the leadership of each House and the Chairmen of the appropriate committees whenever a crisis breaks out. The same Members are usually then notified from time to time as the crisis evolves and as major decisions are taken by the executive branch. While the Members consulted are able to supply individual reactions which provide helpful guidance to the Department, they have no regular means of keeping abreast of developments, ordinarily do not meet together, and therefore cannot provide collective judgments.

Under these circumstances, one or both Houses might wish to establish a regular system whereby the Congress could be kept informed and participate appropriately in the decisionmaking as the

executive branch manages major international crises. Something along the following lines could be tried on an informal basis without requiring any additional legislation, staff, or institutional change.

The leadership of each House should identify a single person to serve as the initial point of contact when a crisis develops. That person would initiate a simple, pre-arranged procedure.

The first step would be to establish an ad hoc committee with whom the Department can consult as a crisis unfolds. Membership of the committee might be permanent, but it would seem desirable to leave open the option of including members whose interests or expertise are particularly relevant to the crisis at hand. Perhaps a mixture of permanent and ad hoc members would work best.

The committee should number no more than eight to ten members, so that it can be quickly assembled.

When necessary, the committee should serve as the instrument for consultation described in section 3 of the War Powers Resolution.

The contact person should have authority to designate all ad hoc members of the committee, and should be responsible for informing all committee members that the committee is being activated.

Briefing and discussions of policy options would be provided initially for each committee, and subsequently as either the committee or the Department desire.

Staff for the committee could be provided on an ad hoc basis from the foreign relations committees or other sources. Potential staff members would require security clearances.

Provisions should be made, perhaps in the foreign relations committee of each House, for receipt of regular situation reports, for getting these reports to members, and for protecting classified reports.

It is important to emphasize, I believe, that any such system must be designed so that it does not alter the distribution of authority and responsibility between the executive and legislative branches, or among the committees and membership of Congress. Its purpose should be simply to help all parties exercise their responsibilities on the basis of the best available information and in a way that will yield its best possible judgments.

I would be happy to work with the committee and the leadership in developing such a system if you wish.

Id. 198-201.

Senator JAVITS. . . . We had occasion to hear before the Foreign Relations Committee testimony from a high administration official. I won't identify him . . . . That high administration official, in respect to the situation which could involve the War Powers Resolution, made 2 points. I will summarize them.

One, that the War Powers Resolution authorizes the President to introduce the Armed Forces into hostilities for up to 60 days; and two, that the U.S. mutual security treaties also authorize the President to introduce the Armed Forces into hostilities.

Is that the position of the Administration? Just a word of explanation before you answer. What interests me is not what may be

the construction in a given situation. What interests me is whether the administration thinks that they have something more than the Constitution gives them. I don't see how the bill can possibly give the President anything he hasn't already got under the Constitution. Therefore I doubt very much that this is really the proper answer to our question.

Mr. HANSELL. If the incident to which you refer is the one that I rather suspect it was, I think my most appropriate response would be that I don't believe it is a definitive expression of the legal interpretation of the War Powers Resolution that the administration would want to make. I think our view on it would be that we do not regard the War Powers Resolution as having granted authority to introduce the Armed Forces into hostilities.

Senator CLARK. . . . In terms of Senator Javits' last statement, I gather you do not feel that the President has the authority under the treaties to commit Armed Forces without prior consultation?

Mr. HANSELL. The answer would certainly be the same, that is, that we do not regard the resolution as having expanded Presidential powers either under the Constitution or under the treaty, and we further do not regard any treaty as having granted war powers to the President.

Id. 205-206.

Near the end of the hearing, Senator Clark referred to statements concerning the War Powers Resolution by Secretary Vance during his January 11, 1977, confirmation hearings before the Senate Committee on Foreign Relations and by President Carter during his March 5, 1977, telethon. Senator Clark asked if the Administration wished to state that the War Powers Resolution is constitutional. Portions of that testimony follow:

Senator CLARK. . . . I am asking . . . whether this Administration is prepared to go on record or not as saying that the War Powers Resolution is constitutional.

Mr. HANSELL. There is a difference, I think-let's be clearbetween that issue, and saying, as the Secretary did, that we do not challenge the constitutionality, which is the critical question. You have already had 48 hours of testimony on the constitutional questions, and these debates are going to go on indefinitely. I think our message is that we would like to avoid getting into that kind of dialog.

Id. 207.

Mr. HANSELL. [W]e think a much more important and effective restraint, if you will, and impact upon future administrations would be to develop a body of practice, of performances....

We do want to build a body of practice. We want to set up a consultation mechanism as indicated in my statement.

Mr. HANSELL. . . [O]ur concern is that if we get into debates over constitutional issues, and press each other to define the limits of the powers of each other, that inevitably that leads to acrimony, that leads to devisiveness, that leads to taking sides within the community at large, and we then are not perceived as engaging in a cooperative joint venture. We are perceived as contesting with one another. So, while they are not necessarily mutually exclusive, our concern is that if we engage our energies and our emotions in defining positions against one another, we will have lost or at least have blunted the kind of momentum toward a joint cooperative endeavor that we hope to see created. We see it as potentially hostile, even if not necessarily so.

Id. 210-211.

For further information concerning the War Powers Resolution, see the 1973 Digest, Ch. 14. § 8, pp. 560-563; the 1975 Digest, Ch. 3, § 4, p. 150; Ch. 14, § 1, p. 798; Ch. 14, § 8, pp. 867, 869, 871, 872, 874, 879-886; and the 1976 Digest, Ch. 14, § 5, p. 718; Ch. 14. § 8, pp. 742–743.

On October 7, 1977, Senator Howard H. Baker, Jr., Minority Leader of the Senate, wrote the Attorney General, Judge Griffin Bell, to inquire about the impact of the War Powers Resolution on article IV of the proposed Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal signed on September 7, 1977. At the request of the Department of Justice, Herbert J. Hansell, Legal Adviser of the Department of State, responded in part to Senator Baker's inquiry as follows:

Article IV of the Neutrality Treaty leaves to each party the determination of what steps it will take in any particular situation to maintain the Canal's neutrality. As reflected in the statement of understanding issued by President Carter and President Torrijos on October 14, 1977, decisions by the United States pursuant to article IV would be taken in accordance with its constitutional

esses.

proc

It is clearly understood that article IV does not affect the authorities and responsibilities of the President and the Congress under internal U.S. law. It does not confer on the President any authority he does not otherwise have nor authorize him to take any action he would not otherwise be authorized to take. The President's authority is a matter of internal U.S. law, to be determined in accordance with U.S. constitutional processes and applicable legislation. The Neutrality Treaty deals with rights and obligations of the Parties in relation to each other, and not in relation to their internal affairs.

The Neutrality Treaty thus wholly accords with section 8(a) (2) of the War Powers Resolution, which provides that authority to

introduce U.S. forces into hostilities may not be inferred from any treaty unless it is implemented by legislation specifically authorizing such introduction.

Dept. of State File No. P77 1075-977.

Legislative Regulation

Trading With the Enemy Act

Title I of Public Law 95-223, approved December 28, 1977, amends the Trading with the Enemy Act, 50 U.S.C. App. 5(b), to remove certain authorities of the President in time of national emergency other than during a declared war. The report of Representative Jonathan B. Bingham, submitted from the House Committee on International Relations, describes the effect of Title I in part as follows:

The purpose of the legislation is to redefine the power of the President to regulate international economic transactions in future times of war or national emergency. These powers are currently provided and defined in section 5(b) of the Trading With the Enemy Act...

Title I... amends section 5(b) of the Trading With the Enemy Act to remove the authority of the President to use the authorities granted thereby in time of national emergency (other than a declared war), except that current uses of those authorities pursuant to an existing declaration of national emergency may continue subject to an annual determination by the President that the continued exercise of the authorities is in the national interest. The effect of title I is to retain section 5(b) of the Trading With the Enemy Act for use during time of war declared by Congress, and also largely to "grandfather" those powers now being exercised under the act.

H. Rept. 95-459, 95th Cong., 1st Sess. 1-2. (Footnote omitted.)

The Section-by-Section Analysis of H. Rept. 95-459 further describes Title I as follows:

Section 101-Removal of certain emergency powers under the Trading With the Enemy Act

Section 101 (a) of the bill amends section 5(b) of the act to remove the provision making the authorities to control economic transactions available to the President in time of national emergency declared by him, but retains intact these broad authorities for use in time of war declared by Congress. Section 101 (b) of the bill provides that uses of the authorities of section 5(b) of the Act with respect to specific countries, which are in effect on July 1, 1977 (such as for the embargoes of Cuba, Vietnam, and other countries, and the freeze on assets of Czechoslovakia, the People's Republic of China, and other countries), will terminate on September 14, 1978-the date specified by the National Emergencies Act for termination of all existing emergency authorities-unless extended by the President. The existing uses of the authorities of section 5(b) may be extended by the President for successive 1-year periods upon determination by the President that such extension is in the national interest. It is the intent of the committee that the President report each such determination and the reasons therefor to the Congress.