1430 COLUMBIA LAW REVIEW (b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of highlevel military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date. (c) For purposes of this joint resolution, the term “introduction of United States Armed Forces" includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. (d) Nothing in this joint reso [Vol. 88:1379 (b) [same as existing section 8(b), substituting "Act" for "joint resolution"] (c) [same as existing section 8(c), substituting “Act” for “joint resolution"] [eliminated] (1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. SEPARABILITY CLAUSE Sec. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby. SEPARABILITY CLAUSE 1431 Sec. 8. [same as existing section 9, substituting "Act" for "joint resolution"] RESPONSES OF J. TERRY EMERSON TO QUESTIONS ASKED BY SENATOR PELL At earlier war powers hearings, Senator Pell asked if witnesses would comment on the suggestion that "no nation is going to honor a treaty if it hurts its own national interest." In my view, the thesis stated by Senator Pell is exactly correct. I believe Senator Pell is in the company of our nation's first Secretary of State, Thomas Jefferson, and has the support of the earliest writers on international law. On April 28, 1793, Thomas Jefferson wrote a masterful opinion for President George Washington responding to the question whether the United States have a right to renounce their Revolutionary War treaties with France in light of the overthrow of King Louis Capet (XVI) and creation of the first French Republic. In his advisory opinion, Jefferson concluded that treaties are not annulled by mere changes in government officials or even the forms of government, but he added that the existence of a serious danger would absolve the United States from the treaties. In Jefferson's words: There are circumstances however which sometimes excuse the VI The Writings of Thomas Thus, Jefferson argued that the treaties were still binding, but subject to the "right which exists at all times of liberating ourselves when an adherence to the treaties would be ruinous or destructive to the society...." In support of his opinion Jefferson marshalled the views of Grotius, Puffendorf and Wolf, all known to the Framers of the U.S. Constitution. Washington adhered to Jefferson's opinion and rejected the contrary advice of Alexander Hamilton. However, Washington exercised the release authority discussed by Jefferson when the President interpreted the Treaty of Commerce to prohibit France from fitting out privateers in our ports and the defense guarantee of the French West India islands as being inapplicable. This introduces further evidence of the accuracy of Senator Pell's thesis. Not only might the United States denounce a treaty as being impossible to perform or dangerous to implement, but treaties may be interpreted so as not to apply to disagreeable situations. Moreover, the United States may determine that a treaty is suspended temporarily because of changed conditions not of our own making or that the United States is no longer bound by a treaty because the other party has committed a significant breach. - 2 A further question must be asked. Who is the competent authority in the United States to make these decisions for the nation? My personal research indicates that 56 treaties have been terminated by the United States since the Republic was formed in 1789. Of these, 49 treaties were terminated with the express or statutory approval or ratification of the Legislative Branch and three others were overturned by inconsistent legislation. Only four treaties were denounced by the United States without any supporting treaty or statute, three of them resulting from a fundamental change of conditions not a result of Presidential action. One other treaty, the Mutual Defense Treaty with the Republic of China on Taiwan, was abrogated in connection with the President's recognition power. Accordingly, I conclude that the general rule, with only rare exceptions, under U.S. Constitutional practice is that the Legislative and Executive Branches will participate jointly in making the decision not to honor a treaty if it hurts our own national interest. In other words, in judging ourselves whether Jefferson's concept of the right of self-liberation from a treaty is to be invoked, the separation of powers doctrine requires that some form of legislative concurrence is usually necessary to terminate a formal treaty on behalf of the United States. J.Terry Emerson RESPONSES OF ABRAHAM SOFAER TO QUESTIONS ASKED BY SENATOR BIDEN Q. 1. In what circumstances, if any, other than those listed in section 2(c), does the Administration believe that the President has the constitutional authority to introduce the armed forces into hostilities without prior statutory authorization? A. The Administration believes that it is neither possible nor wise to attempt an exhaustive listing of all situations that might arise in which the President's independent power as Commander-in-Chief to commit U.S. forces would be applicable. Furthermore, the phrase "without prior statutory authorization" is unclear. Statutory authority can be found in a variety of legislative actions short of the type of specific and explicit requirements of Section 8 of the War Powers Resolution. Keeping these caveats in mind, the Administration is convinced that Section 2(c) fails to list all the circumstances in which the President may lawfully introduce U.S. Armed Forces into hostilities. Among the circumstances not listed in Section 2(c) are the protection or rescue from attack, including terrorist attack, of U.S. nationals; protection of ships and aircraft of U.S. registry from unlawful attack; responses to attacks on allied countries with whom we may be participating in collective military security arrangements or activities, even where such attacks may threaten the security of the United States or its armed forces; and responses by U.S. forces to unlawful attacks on friendly vessels or aircraft in their vicinity. |