hostilities should involve ". . . the collective judgment of both the Congress and the President. . . ."

This Administration is of the view that, as a matter of constitutional law and of public policy, this country should not go to war without that collective judgment. Supreme Court Justice Joseph Story once stated that the awesome decisions involving matters of war and peace deserve"... the utmost deliberation, and the successive review of all the councils of the nation.”

The War Powers Resolution of 1973 also recognized the needs of a modern nation to respond to emergency situations. It acknowledges the constitutional responsibility of the Commander in Chief to act, expeditiously when necessary, to preserve the security of our nation. We realize that collective judgments cannot constructively be applied if the Congress is not well informed in a timely fashion; neither can they be usefully applied if there are not effective consultation procedures between these two branches of government. By establishing the consultation and reporting requirements contained in sections 3 and 4 of the War Powers Resolution, the Congress took a useful and desirable step toward reducing information and communications obstacles which have impeded coordination in the past. For example, as a direct result of section 4 the Departments of State and Defense have formalized a review process to insure that reports to the Congress are promptly submitted whenever they are required by the law. Under this review process the Legal Adviser to the Chairman of the Joint Chiefs of Staff informs the Department of Defense General Counsel of all troop deployments routed through the Chairman's office which could raise a question whether a report to the Congress is required. The General Counsel of the Defense Department then has the responsibility to advise the Secretary of Defense as to whether to recommend to the President that a war-powers report be submitted.

In the Department of State, the Legal Adviser of the Department receives the same information supplied to the Defense General Counsel and has the responsibility of bringing to the attention of the Secretary of State all cases in which the submission of a report should be recommended to the President.

These arrangements, supplemented by close informal contacts between the Departments of State and Defense, provide in our view a valuable mechanism both for advising the President and for assuring that the implications of a proposed use of the armed forces will be more fully discussed at an early stage. This Administration is firmly committed to respect the requirements of section 4. In addition, we are committed to insuring that these reports contain meaningful information and that they are submitted as promptly as possible, and in any case within the prescribed 48-hour period.

We recognize, of course, that reports under section 4 relate to actions the President has taken pursuant to his constitutional or statutory authority. In emergency cases it is important for the President to obtain the advice and counsel of the Congress whenever possible before he acts. By their very nature some emergencies may preclude opportunity for legislative debate prior to involvement of the armed forces in hostile or potentially hostile situations. However,

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in the great majority of cases we believe that meaningful consultations with an appropriate group of congressional representatives should be possible.

Such consultations serve both to keep the Congress well informed in a timely manner and to permit the executive branch to benefit from advice from Members of Congress as it deals with international crises. In order to facilitate such contacts, the Administration is prepared to work with the Congress to develop reliable and efficient consultation procedures. By improving such procedures, we may both increase the quality and usefulness of consultations and decrease the number of instances in which the President is compelled by an emergency situation to act before such consultations can be organized.

The first requisite for meaningful consultations is a genuine intention of both the Congress and the executive branch to make them work. This Administration has manifested such a commitment on several occasions, in both word and deed. While we are all mindful of the necessity to insure the President's ability to act quickly, this Administration is equally convinced of the necessity to have broad public support for a national commitment to undertake the potential risks and burdens of involvement in hostilities.

A second requisite is efficient machinery for conducting those consultations. In the past when an international crisis has erupted executive branch officials have notified the leadership of each House of Congress and the chairman and members of appropriate committees. The initial contacts between the executive branch and the Congress have been on an individual basis, which at times makes it more cumbersome to carry out consultations and to have the benefit of collective judgments.

In order to help overcome these problems, Congress may wish to consider establishing a streamlined structure for carrying out consultations, not only in the war-powers context, but also in other crisis situations. An improved institutional mechanism would facilitate a more ready flow of information to the Congress at an early stage of a situation and assure the Administration's receipt of timely congressional advice. We are, of course, prepared to work with the leadership in whatever manner they deem best. On our part, we want to assure you that we will be responsive.

In addition to the consultation and reporting provisions, the debates over the War Powers Resolution have elicited considerable discussion about several other provisions of the resolution. In particular I am thinking of section 5(c), which refers to a concurrent resolution; and section 5(b), which refers to a 60-day automatic cutoff period. This Administration as a matter of policy intends to follow the letter and spirit of section 5.

We believe that conscientious observance of the procedures set forth in the resolution, including effective consultation and timely reporting, will assure that both the executive and legislative branches possess the means to exercise their full and proper constitutional responsibilities.

The Administration will follow the provisions of the existing resolution. We believe, however, that the consideration of amendments should be deferred, for two reasons.

-First, the existing law has been in effect only 4 years. We believe the passage of more time is necessary to assess the desirability for further legislation-time for the development of the cooperative working relationship we foresee and the healing of the deep divisions that were reflected in the debates on the present resolution.

-Second, we believe the existing law, conscientiously applied, is an effective instrument for insuring that the nation will not be committed to war without adequate deliberation and participation by both Congress and the executive.

A prolonged debate over elusive constitutional issues-with no assurance as to what the final form of the amendments would be— could well produce new uncertainties within our own government, and in the minds of our allies and potential adversaries, and might even detract from the effectiveness of the existing law.

In conclusion, we intend to work with vou in fulfilling the goals underlying the War Powers Resolution. Through our joint efforts. we hope to demonstrate once again the health and vigor of our constitutional system.

77 Dept. of State Bulletin 291–293 (1977).

Secs. 2(a), 4, and 5 of the War Powers Resolution read as follows:

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation. but in no event shall he report to the Congress less often than once every six months.

SEC. 5. (a) Each report submitted pursuant to section 4(a) (1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of

Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a) (1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Sec. 3 of the War Powers Resolution appears ante. Ch. 14, § 8, p. 968.

After his prepared remarks, Mr. Hansell answered questions posed by Senators Dick Clark and Jacob K. Javits concerning the introduction of U.S. Armed Forces into hostilities without congressional approval under section 2(c) and the congressional consultation mechanism established in section 3. The questions also dealt with some consultation procedures proposed by Assistant Secretary for Congressional Relations Douglas J. Bennet, Jr. and the power of the President under the Constitution and U.S. treaties to introduce Armed Forces into hostilities. Portions of these questions and answers follow:

Senator CLARK. . . . Are there any situations, Mr. Hansell, other than those set out in section 2(c) of the War Powers Resolution, in which you believe the President could introduce the Armed Forces into hostilities without congressional authorization?

Mr. HANSELL. Yes, sir, I am sure there are. . . .

Senator CLARK. I think it might be wise to speculate about some of those, because it could very well become an issue before this Government.

Mr. HANSELL. A rescue situation, for example, is not referred to in 2(c), but he might face the necessity for rescuing either civilian or perhaps military personnel of the United States.

War Powers Resolution, Hearings before the Committee on Foreign Relations of the U.S. Senate. 95th Cong., 1st Sess., 193–194.

Senator CLARK. If there are other cases, as you have indicated, and I think there are, where the President would have the authority to introduce the Armed Forces into hostilities, why should we not amend section 2(c) to broaden its scope and recognize those

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