ineffectiveness of the existing legislative committees of the House and Senate which have responsibility for foreign and military affairs. It is precisely the importance of these committees and the role they would play in the actual carrying out of congressional powers under the Javits bill which prompted me to assemble the leadership of these committees, together with the leadership of both parties in the House and Senate on a single panel-a panel which would be officially and formally designated by the Congress to receive presidential communications required under this legislation, and to be available to consult privately with the President or his national security advisers in international emergencies. You will note, Mr. Chairman, that my bill assigns absolutely no legislative power or jurisdiction to the joint committee on national security. Any legislative measures short of or including a declaration of war must first be considered and reported out by the appropriate committees of the House and Senate. ADVANTAGES OF JOINT COMMITTEE ON NATIONAL SECURITY Despite its lack of a direct procedural role in formulating legislation which would approve, change or reject presidential action to dispatch U.S. troops into hostile areas, I feel very strongly that the creation of such a committee has distinct advantages. During the Cuban missile crisis, President Kennedy hurriedly summoned 20 congressional leaders to the White House at 5 o'clock on the afternoon of October 22, 1962, to lay out the reasons for his impending announcement that evening of a naval quarantine in the waters surrounding Cuba. This consultation, despite the fact that the action was not preceded by any affirming congressional resolution, did much to unite the American government and the American people and our allies behind the necessary but risky course that was followed in October 1962. It also left no doubts in the minds of our adversaries as to American unity and resolve. The atmosphere of partnership and unity that was forged in that crisis is one which I feel we could in the future encourage by designating a joint committee on national security which the President, at his option, could consult with, prior to taking military action under the terms of the Javits bill, and which he must consult with within 24 hours after taking such action. The prestigious and bipartisan nature of the joint committee membership would, I feel, help to set the stage for an atmosphere of partnership and unity in such decisions, without risking a reluctant rubber stamp of presidential actions in situations where the Congress does not feel his decisions are in the national interest. I have also included in H. R. 7290, a provision requiring the joint committee to transmit the President's report on his actions to the appropriate committees of the House and Senate together with a recommendation for congressional action. Far from impeding the legislative process which is to take place within the 30-day period following a military action under the President's emergency powers, I feel that a prompt and authoritative recommendation from this prestigious panel would fulfill a great psychological need for the Congress and the Nation during what would inevitably be a moment of crisis and uncertainty. While the joint committee's recommendation, even if it were unanimous, would not preclude individual Congressmen and Senators from publicizing differing points of view on the President's action, it would provide a prompt focal point of national and international attention as to the stance of the Congress on the matter, as a backdrop to the legislative deliberation and debate that would follow. In short, I feel the establishment of a joint committee on national security would acknowledge the roles of both the Senate and House in the exercise of legislative powers delineated under the Constitution and in the Javits bill. More importantly, I feel it would encourage the creation of a working partnership between the Congress and the executive in moments of internatioual crisis. I do not feel that the joint committee would be an impediment to prompt action or mere excess baggage because of its lack of legislative jurisdiction, but think its very existence would enhance the role of Congress in decisions whether or not to dispatch U.S. troops into hostile action. POSSIBLE ALTERATIONS IN JOINT COMMITTEE MEMBERSHIP OR STRUCTURE Mr. Chairman, I do not come before you to profess pride of authorship in the detailed makeup or functions of the Joint Committee. My bill presents one way, and I feel a responsible way, to constitute and utilize such a committee. However, I can appreciate that in its expertise your committee may decide to alter the membership or structure of the committee in some way. For example, since drafting the bill, I have come to prefer a rotating chairmanship between the President pro tempore of the Senate and the Speaker of the House, rather than the permanent designation of the Speaker as chairman which my bill contains. Also, my bill provides for the chairman and ranking minority member of the joint committee on atomic energy to serve on the National Security Committee. Perhaps the best way to work this out would be to designate the Chairman of the Atomic Energy Committee as a member. If, in a particular Congress the chairman is a Senator, then the ranking minority house member serving on the Atomic Energy Committee should fill the other seat. When a House Member is chairman, the ranking minority Senator should serve. These are merely two examples I have considered of changes you may want to make, should you decide that the concept of a Joint Committee on National Security is a worthy one. PROPOSED LEGISLATION SHOULD NOT ATTEMPT EXHAUSTIVE “SERVICE MANUAL" There is one general point in support of the language of the Javits bill, as adopted in H.R. 7290 that I would like to make. I do not feel that the legislation we enact should be an attempt to write an exhaustive "service manual" for national emergencies. We cannot possibly predict every sort of eventuality and then seek to describe in detail the roles of Congress and the President in each possible occurrence. Whatever the language of the bill we enact, its effectiveness will depend to a great extent on an atmosphere of trust between the two branches of government. Without this atmosphere, Presidents will tend to opt for their interpretations of foreign policy, history, and constitutional provisions in justifying their actions, and Congress could again largely be left with the role of Monday morning quarterback, although this legislation would still serve as a powerful legislative tool. I feel that the language of the Javits bill is firm enough to define the proper war power roles of the Congress and the Executive, without succumbing to the serious charge that the bill ties the President's hands, or seeks to limit his legitimate powers. NEED FOR WAR POWERS LEGISLATION There is no question that legislation is needed to apply the meaning of legislative war powers in article I section 8 to the present day world of rapid communications, instantaneous weapons of war, and American leadership of the free world. A bill is needed which accomplishes this without hamstringing legitimate presidential powers to respond to emergency situations. I strongly feel that the provisions of the Javits bill meet this standard. Also, I feel that my proposal for a Joint Committee on National Security, while it would not substantively change the balance of war powers between the White House and Capitol Hill, would add to the stature of the legitimate role of Congress, and would encourage an atmosphere of partnership and trust ir the functioning of both branches of Government in an emergency. The war powers of Congress are not fully understood by the American people, Mr. Chairman, and there are indications that the Congress itself does not understand its legitimate role in this vital area. As a result of the lack of an affirmative congressional role in the Vietnam era, congressional opposition to the Vietnam war has been cluttered with diverse motivations, a clutter which is confusing to our allies and misleading to our adversaries. Some oppose the war on moral grounds, others on political or geo-political grounds, others for tactical reasons, other for constitutional or legal reasons. This is the burden that Congress, the Nation-indeed, our foreign policy-have had to bear amid confusion as to the proper role of Congress, in the absence of a procedural arrangement for congressional participation in the war-making activity. I need hardly add that this uncertainty has encouraged a variety of responses, ranging from the most olympian scholarship to the most adolescent hysteria. As my distinguished New York colleague in the Senate so brilliantly stated in his testimony here on March 24, if we act to correct this situation, "The President will know where he stands. The Congress and the people will know where they stand. And the world will know where America stands." I think the world needs to know where America stands in these situations, and this legislation would be of immense value in resolving doubts among our own Armed Forces, among our adversaries, and among our allies. Congress is not the Commander in Chief nor is it an adjunct of the military structure. Congress, as spokesman for the people, has an independent responsibility involving questioning, evaluation and judgment. My bill is addressed to the fulfillment of this responsibility, and I hope that my testimony here this morning will be a constructive addition to the commendable attention your committee is already giving to this subject, which lies at the very heart of our democratic system of government. (Appendix follows:) APPENDIX MEMBERSHIP OF THE PROPOSED JOINT COMMITTEE ON NATIONAL SECURITY Chairman: The Speaker of the House Vice-Chairman: The President pro tempore of the Senate Members: The Majority Leader of the House The Chairman and ranking minority member of each of the following Committees: Senate Foreign Relations Committee Senate Armed Services Committee Senate Judiciary Committee House Foreign Affairs Committee House Armed Services Committee House Judiciary Committee Joint Committee on Atomic Energy One Member of the House who is not a member of any of the aforementioned One Member of the Senate who is not a member of any of the aforementioned [From the Congressional Record, Apr. 6, 1971] SPEECH OF HON. FRANK HORTON OF NEW YORK Mr. HORTON. Mr. Speaker, we are nearing the seventh anniversary of the passage of the Gulf of Tonkin resolution in 1964-an action which marked the start of the current crisis in the distribution of constitutional powers of war and peace between Congress and the Executive. Charges that the current and past Presidents have exceeded their authorities as Commanders in Chief in carrying out military actions in Southeast Asia are definitely sustainable. But perhaps equally sustainable and more serious is the uncomfortable fact that Congress has virtually abandoned its constitutional role in foreign affairs by providing no viable modern-day procedure for exercising this authority, and by allowing the Executive to flex and extend its constitutional power by overinterpreting largely passive congressional actions which imply the granting or retracting of authority to carry out certain military activities. I am today introducing a bill to fill that vacuum left by Congress, which will offer a viable procedure whereby Congress can exercise a positive and an active role in the determination of military policies which fall short of a declaration of war. I feel that the need for this bill, or some similar procedure for congressional reentry into its role under article I, clauses 11 through 14 of the Constitution, is best understood in light of an overall analysis of the key questions surrounding the situation in Southeast Asia. Questions arising from our involvement in Indochina might be divided into three categories: constitutional, military, and moral. The primary question is one which we, as Congressmen, must be most concerned about. That is the question of the constitutionality of the policies pursued by the current and past Administrations in Southeast Asia. I am not here referring to the constitutionality of Vietnamization as a grand design for ending American participation. Mr. Speaker, I feel that Vietnamization, coupled with a resolve to take real risks to promote a negotiated peace, is 58-809-72- -27 the right way to extract America from this war, and, hopefully, to end the war itself. I was calling for de-Americanization of the war and a greater priority on training the Vietnamese to defend themselves as early as 1967. The serious constitutional crisis to which I refer, surrounds Executive decisions to employ United States military personnel beyond the borders of Vietnam, into Cambodia and Laos. During the Cambodia crisis in mid-1970, I stated my opposition to the invasion, not on military grounds, but on constitutional grounds. The President had dispatched American troops across an international boundary without any private consultation with congressional foreign policy leaders prior to the attack, and there was no congressional approval. I had and have no argument with the notion that the forces of South Vietnam, which have been under attack by North Vietnamese and Vietcong operating from sanctuaries in Cambodia and Laos, should, upon the determination of the Saigon government, be able to engage their enemy in these areas. While this amounts to aggression against the territories of these neutral nations, it does not surpass or equal the aggressions committed against these nations by the North Vietnamese. The existence of Communist troops and sanctuaries in these nations in violation of international law does not, however, provide a sufficient justification under our constitutional system for the President to order Americans into actions in these countries without some participation in that decision by the Congress. I say some participation, because even the Constitution is unclear as to what exact procedure should be followed by the two branches of government in deciding to engage in military action short of a declaration of war. It is obvious in this technological age of rapid communications and transportation that situations will arise where military action short of a full declaration of war would be prudent policy-situations in which the alternatives of a declared war, or no action at all, would be irresponsible and undesirable. Tradition and custom have shown such situations to include repelling attacks, protecting American lives abroad, and fulfilling treaty obligations. It is time to codify these traditions into law. An honest analysis of the current situation, where seemingly all of the power to engage American forces has been gathered up by the Executive, would lead to the conclusion that Congress is at least as much at fault as the President. Congress, and particularly the Senate, has cast itself in a role where it is close to impossible to exercise the necessary judgment in a modern-day situation. It is clear that some military and foreign policy decisions cannot be responsibly made if they must await week after week of inconclusive debate, and survive all of their details and strategies being subjected to public debate and world scrutiny. By consuming several months while debating the Cambodia situation, the Senate showed itself to be concerned with foreign affairs, but at the same time illustrated that Congress, as a whole, is presently ill equipped to take a responsible role in making decisions affecting war and peace. In short, Congress has failed to provide a proper and a timely procedural channel through which it can bring its will to bear on crucial foreign policy decisions. It must equip itself to participate in these decisions in order to properly protect public's interest in foreign policy decisions, as intended under the Constitution. The failure of Congress to provide such a mechanism creates a situation where the President can take unto himself most of the warmaking powers which can be invoked to engage U.S. troops in hostilities. The practical result of this failure is to insure that Congress will not get back its constitutional powers over war and peace unless and until some means is found for Congress to make such decisions consistent with the protection of national security and the technological realities of modern-day warfare. It must be possible for Congress, or a designated body in the Congress, to receive classified information surrounding a pending military decision, and to accomplish, within a reasonable period of time, congressional ratification or change of such a decision without rendering it moot by airing before the world information affecting our national security or bearing on the success or failure of the actions involved. While it is unreasonable to think that Congress can be practically consulted in a nuclear emergency, or in an instant tactical situation, it is not unreasonable to think that Congress can exercise its power and judgment over decisions to engage American troops in any foreign country. Technically, with the repeal last year of the Gulf of Tonkin Resolution, the President has only implied congressional approval to continue any engagement of U.S. troops in Southeast Asia. The implied power is rooted in the enactment of appropriations for American troop activities and support in Vietnam, and in prohibitions against the use of U.S. ground troops and advisers in certain nationsimplying permission to use them in other nations. |