Senator BIDEN. That is not an unusual occurrence on the Hill here, as you have observed, Mr. Secretary, nor in the White House, as I have observed.

Former Secretary RICHARDSON. That, of course, is one of the reasons why the Framers created a system of checks and balances.

The preliminary clause says the President is authorized to use force abroad in the situations enumerated. That, of course, invites the question what gives Congress the idea that it is empowered to grant any such authority?

I think even the advocates of a weak version of the Presidency in Philadelphia would have been surprised by the notion that the President of the United States lacked any of these powers by virtue of his authority as the Chief Executive.

I think it would be a flaw of our constitutional system if they had thought otherwise.

Surely he must be able to take these actions. The implication is that if Congress had not passed this law, he would be helpless. Clearly that must be wrong.

Senator BIDEN. There is a great deal of legislation that is passed that, in effect, reaffirms a power that already exists in the judicial or executive branch of the Government, but is done for the purpose of clarifying what has been a matter of significant dispute and national division up to that point.

All of us would agree that there has been significant debate on whether or not some of these powers are inherent to the President. There was debate here on the Hill as to whether or not the response to the acts of terrorism against American citizens outside of the United States and outside of Libya warranted or gave the President the right to respond as he did.

There was debate and there is debate right now as to whether or not the President has the constitutional authority to take the position he has taken in the Persian Gulf in terms of the deployment of forces, and so on.

So, whether or not he, in fact, has these rights inherently, it may be useful to articulate and clarify them, implicit in this is the recognition that some of these powers are inherent. My draft legislation does not say "is hereby authorized." It says only "is authorized," leaving open the question of what presidential authority is inherent and what would be authorized by that law itself. In other words, it would include all the powers that are regarded as inherent while not trying to distinguish just where the dividing line is. Can you think of any circumstance which would warrant the President being able to use force that is not covered in the prospective authorities I have cited?

That is the purpose of my question.

Former Secretary VANCE. Senator, I would like to study the text of your draft and then respond to you. It looks to me to be a very comprehensive list.

The first three I think clearly already exist, either by statute or by judicial precedent.

It seems to me, with respect to four, that recognizes a new reality in the world today and it seems like a reasonable addition.

With respect to the latter two, I would like to think more about it, and I would like to think more about the question that Elliot

raises, if you try to enumerate all of these at this time, are we helping ourselves or making it more complicated.

It is a very interesting proposal and I want to study it.

Senator BIDEN. I want to emphasize that this truly is a draft, put out there for discussion.

As early as my first month in the U.S. Senate in 1973, I came down on the side of Senator Eagleton and others, whose greatest worry was that having a War Powers Act was going to grant to the President authority that was not inherent in the Constitution, that he did not have, and that we were, in fact, "giving away" or "enhancing the power of."

I acknowledge that when you attempt to enumerate, you run the risk of doing that also, as well as leaving pieces out.

But the most important thing that I think everyone, particularly you two men this morning, has emphasized is that we are badly in need of either an era of trust. We need a mechanism that does not thwart the possibility of building that trust, but also protects both branches in the absence of trust, for the ultimate purpose of having a consensus in the conduct of foreign policy and, specifically, in the use of force.

I know you, Mr. Secretary, as Secretary of State, and I recall you, Secretary Richardson, as Secretary of Defense. I recall that that was one of the main elements of everything you would do when you would come to the Hill, a recognition of the need for trust.

There is the old expression "If you want us in, Mr. President, on the landing, we must be there on the takeoff."

My experience with both of you has been that you have acted in just that way, because it is just a sound way to conduct foreign policy.

Let me ask one concluding question that spins off that.

It has puzzled me since the Act has been in place. When the War Powers Act was approved, I viewed it as a Presidential act rather than a congressional act. This is because it seemed to me that there were very few, if any, situations in which the President, having committed U.S. forces for a 60-day period, would find a Congress willing, either through its nonaction, or in its affirmative action, to come forward and say: "Mr. President, bring those troops home."

I think the only time that occurs and has occurred in our history is when that time period has been elongated to the point that it becomes clear that it is a messy undertaking.

So, one of two things happen. Either the President, in that 60 days, goes in and gets the job done and everybody in Congress, in both parties, says "Yes, he did the right thing," even though they believe they would have been against it in the first place. Or, the President is in the middle of a conflict and "American boys" are under fire and the call goes out to rally round the flag, and few, if any, Members of the Congress are willing to stand up in that kind of atmosphere and say bring them home.

So, my question is this.

In your times in the White House, was there any reason, beyond the worry of establishing the constitutionality of the Act, why a President would not have made a report under 4(a)(1), starting the

clock ticking, knowing that he was likely to be able to bring the Congress in, and everybody in, on the takeoff-the flip side of that being that Congress cannot criticize if there is a crash?

Why haven't Presidents used this to their advantage?

Former Secretary VANCE. The constitutionality is the main issue raised by Presidents in deciding not to consult.

On the other hand, as I indicated before, there is a reluctance to consult sometimes because the President does not want to hear what he may be told by the leadership in Congress.

Senator BIDEN. Mr. Secretary, if I could be more specific, there is a provision in the Act in which the President would send up a report, having nothing to do with consultation, that would start the 60-day clock ticking.

We have received reports, but these reports have said: "We're telling you what happened," but it really doesn't fit with the legal requirement. [Pause.]

Senator BIDEN. I don't recall the exact language of section 4(a)(1), but the report is to the effect that "I have introduced the forces into hostilities or imminent hostilities," and that starts the clock.

No President-except for President Ford, and that was in Mayaguez-ever did that and that had already been done. In other words, by the time we got that report the whole exercise was over or just about over.

Presidents have avoided confronting the constitutionality of this Act by never sending up a report clearly labelled as a section 4(a)(1) report.

My point is that it would seem to me by sending up a report and starting that clock running, what you would have up here is a lot of Congressmen and Senators breathing hard. Those who were opposed to the action would have to oppose it in an atmosphere that was "rally round the flag," and those who supported the action would be in a very solid position of characterizing it as "total congressional support.'

Let me make one last comment and then ask you to comment. To be very honest about this, there are clear reasons why the War Powers Act has not been invoked, as Senator Adams has wanted, on the Persian Gulf. Probably one-third of the Members of Congress believe it is unconstitutional and wrong and that there should be no act. So, they don't want to acknowledge that it even exists or has a right to exist.

Probably 40 percent believe that it should be invoked but they can't get it up because of procedures here.

All the rest in the middle are hoping that it won't come up because then they are going to have to vote, and if they vote, they are either going to have to go on record as saying President Reagan is right in what he did or President Reagan is wrong in what he did.

That portion, 20 percent or so, is sitting around, having the best of both worlds.

If it goes badly they can say: "I told you we should not have done that." If it goes well: "The President made a proper decision here." That is the honest to God truth, in this Senator's opinion, why we have not been able to get a vote under the Act.

I would assume Presidents, being savvy politicians, would understand that and capitalize on that for the purpose of establishing a consensus, not unlike the Gulf of Tonkin at the time.

Former Secretary VANCE. I agree with what you have said. That is the way I look at the Act.

Let me just state for the record to make sure it is complete that another issue raised by Presidents has been the question of secrecy: If I talk to the people on the Hill, including even the leadership, is it going to leak?

All I can say about this is from my experience, and I go back to that period of over a year when we had our hostages in Tehran, held by the Iranians. At least 4 days a week Warren Christopher and I went to you, alternating with the Senate side and the House side, and met with the leadership and brought them up to date on what was happening.

We told them I think everything that was taking place and there was not one leak over that extended period of time with respect to any of the very sensitive materials that were being discussed.

Former Secretary RICHARDSON. I would add just one further comment, Mr. Chairman.

I agree with the analysis that you have just set forth and I think your exposition of the attitudes of the Members of the Senate certainly sounds not only plausible, but convincing.

I think, from the President's side, on the other hand, an attitude related to the issue of constitutionality in a formal sense is a feeling that it is essentially inappropriate for him to acknowledge the legitimacy of Congress' purporting to regulate the relationship, that it is OK, given the point that Secretary Vance made earlier, that there is a degree of overlap and mixture between the executive and legislative branches in the context of war powers, that there should be communication and cooperation and mutual understanding, so far as possible, but don't tell me that I have to do it. That, as I have said, I guess repeatedly, is to me what also tends to undercut the very opportunity to develop an appropriately cooperative relationship.

Senator BIDEN. I thank you very much. I think that is an insightful comment.

You know, when you think about it, gentlemen, one of the reasons why the Constitution has functioned as well as it has for so long is because the men who wrote it were keen observers of human nature.

Former Secretary RICHARDSON. Absolutely.

Former Secretary VANCE. Indeed.

Senator BIDEN. They had a pretty good idea how people thought and reacted.

As Emerson once said in another context, "Society is like a wave that moves on; but the particles remain the same." Not much has changed in the millennia in terms of how humans look at their self-interest.

Well, I have trespassed too long on your time now. You fellows do, in fact, make a living and have other responsibilities, but you also have remained public servants in the best sense of the word. Thank you.

Former Secretary VANCE. Thank you for asking us to come to testify on this important matter.

Senator BIDEN. You have provided us great insight. Thank you. Former Secretary RICHARDSON. Thank you, Mr. Chairman. Senator BIDEN. Thank you very much.

This hearing is adjourned.

[Whereupon, at 12:15 p.m., the subcommittee adjourned, to reconvene at 10:19 a.m., September 20, 1988.]