Carlucci, Hon. Frank A., III, Secretary of Defense. Crowe, Adm. William J., Jr., USN, Chairman, Joint Chiefs of Staff.. Henkin, Louis, Esq., University Professor Emeritus, Columbia University Firmage, Edwin B., College of Law, University of Utah, Salt Lake City, UT...... Glennon, Michael J., Professor of Law, University of California, Davis, Law Reveley, William Taylor, III, Esq., practicing attorney and author, Richmond, Friedman, David S., Esq., practicing attorney and author, New York, NY. Nathan, James, Professor of International Relations, Department of Political Proposed War Powers Resolution Amendments of 1988, S.J. Res. 323, text of.... Pell, Senator Claiborne, prepared statement, July 13, 1988.. Glennon, Michael J., United States Mutual Security Treaties: The Commit- ment Myth, Columbia Journal of Transnational Law, vol. 24, 1986, No. 3...... War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? chap. XI, University Press of Virginia, 1981, excerpt Page Sofaer, Abraham D., prepared statement (with attachments), September 15, 1988.. 1046 Halperin, Morton H., prepared statement, September 20, 1988. 1107 1146 1167 1185 1213 1229 1246 1258 1274 Silber, John, "Presidential Handcuffs," The New Republic, February 18, 1985. 1293 1296 Suppose Congress Wanted a War Powers Act That Worked, by John Hart Ely. Letter to Louis Henkin, et al. Response of Louis Henkin to...... Response of Michael J. Glennon to..... Response of Thomas M. Franck to.... Response of Edwin B. Firmage to Questions asked by Senator Helms: Responses of Prof. Ronald D. Rotunda to.............. Responses of Morton H. Halperin to Questions asked by Senator Pressler, responses of Robert F. Turner to 1317 1335 1389 1391 1405 1406 1408 1409 1411 1413 1416 1421 THE WAR POWER AFTER 200 YEARS: WEDNESDAY, JULY 13, 1988 U.S. SENATE, SPECIAL SUBCOMMITTEE ON WAR POWERS OF THE COMMITTEE ON FOREIGN RELATIONS, Washington, DC. The subcommittee met at 9:30 a.m. in room SD-419, Dirksen Senate Office Building, Hon. Claiborne Pell (chairman of the committee) presiding. Present: Senators Pell, Sarbanes, Kerry, Simon, Adams, Moynihan, Kassebaum, Boschwitz, Pressler, Murkowski, Trible, Evans, and McConnell. The CHAIRMAN. The Committee on Foreign Relations will come to order. Today our committee commences work on a project of real significance, an effort to evaluate and improve the War Powers Resolution of 1973. Congress passed this law 15 years ago in the hope of fostering constructive executive-legislative interaction in the decision to employ U.S. forces abroad. Unfortunately, this intent has never been fulfilled. Indeed, from the moment of its enactment over President Nixon's veto, the resolution itself has been an object of dispute rather than an instrumentality of cooperation. This past year's contentious debate over the Resolution's applicability to the U.S. presence in the Persian Gulf has served to underscore the irony that now surrounds this crucial law. For the motive behind the War Powers Resolution was a determination to establish a procedure that would ensure national unity. The aim was to devise a mechanism, consistent with the Constitution, through which Congress and the President would act together in the momentous decision to commit U.S. forces to hostilities. Critics of the War Powers Resolution continue to characterize it as an idiosyncratic product of its time, an effort to prevent another Vietnam. But that involves a distortion. The War Powers Resolution was not intended to prevent the necessary use of American military power, but rather to prevent the commitment of power unaccompanied by careful analysis and the commitment of national will. The framers of the Constitution intended that Congress be an active participant in the decision to commence hostilities. While the War Powers Resolution in its current form has failed, a way must be found to give modern meaning to constitutional intent. Pursuant to this purpose, the committee last December authorized the establishment of a Special Subcommittee on War Powers. Today the subcommittee begins hearings that will provide for a full airing of the constitutional dimensions of the question, while considering practicalities as well as principles. The chairman of the subcommittee is Senator Biden our colleague, who is completing recuperation from surgery and for whom I will sit in until he returns in a few weeks. These hearings will extend through August and into September, and will involve former and present Government officials, including President Ford and a number of eminent constitutional schol ars. And now the subcommittee is pleased to be able to commence its hearings with testimony from four people who played a role in the genesis of the law we have set ourselves to evaluate. Chairman Fascell and Congressman Broomfield have since assumed the leadership of the House Foreign Affairs Committee. Senators Eagleton and Mathias have retired and graduated to new careers. All four have records of distinguished service to our country, and the subcommittee is very pleased by their presence today. I would ask Senator Pressler if he has an opening statement. [The prepared statement of Senator Pell appears in the appendix.] OPENING STATEMENT OF SENATOR PRESSLER Senator PRESSLER. Thank you very much. I am pleased to serve as the ranking member on the Republican side. This is the first, as you pointed out, in a lengthy series of hearings on the War Powers Resolution, often referred to as the War Powers Act. It has been a matter of major concern for the Congress over the past 15 years, and each time there is a new international crisis it is at the forefront. It may well be the subject of debate for the next 15 years. The administration opposes this legislation on constitutional and practical grounds. I strongly support the administration's position. Nevertheless, the reason we are meeting here this morning and listening to the testimony of these distinguished witnesses is the result of the continuing political controversy over that Resolution. It is a political statute, pure and simple. We are inquiring not only into the nature and legality of the War Powers Resolution, but we are also examining the war power itself. Thus, we are exploring the isssue of the constitutional separation of powers at the very time we are celebrating the bicentennial anniversary of the U.S. Constitution. This is a curious way to celebrate a document that is not only the world's oldest written constitution, but also has made our system of Government the political wonder of the world. I have long been a critic of the War Powers Resolution. It is unconstitutional in law and politically unwise in fact. It has seriously strained the relationship between the executive branch and the legislative branch at a time and under circumstances when coopera |