sary, it authorized their use in unlimited circumstances for a fixed period. This stands the Constitution on its head. Moreover, it struck a bad deal. In return for giving the President what was taken to be carte blanche as to the circumstances in which he could utilize the Armed Forces, he never once gave the Congress what it had asked him for in return, the report which would trigger the 60-day limitation on that exercise of force. Today, the Senate has the benefit of hindsight and the opportunity which the beginning of a new administration may present. Congress can and must do better if the policymaking process is to disentangle itself from those legal knots which divert our attention from the crucial war peace issues and undermine our credibility as a reliable world leader. Thank you, Mr. Chairman. [The prepared statement of Mr. Franck appears in the appendix.] Senator HELMS [presiding]. Thank you, Mr. Franck. Dr. Halperin. STATEMENT OF MORTON H. HALPERIN, DIRECTOR, ALLAN Dr. HALPERIN. Thank you, Senator Helms. I want to say, sir, while you and I don't always agree, I do want to echo your statement of a few minutes ago that you are not a lawyer and you are damn proud of it. I am neither, as well, and I testify in that spirit. I approach the question of the War Powers Resolution with the notion that it is not only constitutional and fully consistent with the purposes and intent of the Constitution, but also fully consistent with the national interests of the United States. This is because I think it stems from the basic notion that, in a democratic society, it is not only constitutionally wrong, but a mistake to commit the Nation to war without a consensus in the country that we ought to go to war. That was the principle which Mr. Weinberger stated while he was Secretary of Defense, when he laid out some criteria for when he would support the use of American power. I think it stems from the notion which, if we did not learn from Vietnam, we should have learned from events since, including Nicaragua, that the worst situation for us to be in is one in which the Nation is at war, but we are divided among ourselves about whether or not that war is just, whether or not that war is sensible, and whether the spilling of that blood is necessary for the American interest. Those are debates that we ought to have before we go to war and not during the war. I think that was the intent behind the War Powers Resolution. I think the Resolution has failed for several reasons. First, there were some compromises made before it was enacted which produced the not unusual event of a structure which lacked coherence as to its purpose and its intent, and has left us with a scheme which I think is simply one that does not work. Second, all of the Presidents who have served during the period of the War Powers Resolution have been opposed to it and have functioned as if it was something to be avoided. This has meant, among other things, that we have designed our operations so that lawyers could tell Presidents that they need not invoke the War Powers Act. It is hard to imagine a more perverse result of legislation, so that what we do in the world is not based on the best judgments of our diplomats and soldiers and others about what we should do. It is based on what the lawyers say to the President he can get away with without the War Powers Act actually being invoked. Finally, there has simply been a lack of congressional will. Congress, having passed the War Powers Act over the Presidential veto, has, since then, run away from the responsibility and authority which it sought to give itself in that act. I think there has been no clearer example of that than the desperate efforts of the Senate to avoid voting on the question of whether or not the American military presence in the Persian Gulf constitutes an act within the War Powers Act. One has to ask, I think, how many Iranian ships we would have had to fire at, how many airplanes we would have had to shoot down believing they were attacking us, before the Congress would have been willing to say that this comes within the definition of "imminent hostilities," within the meaning of the War Powers Act. Now I would urge you, as I think most of the witnesses before this committee have, to revise the legislation. Clearly, in its present form, it is not functioning. I want to suggest several principles that I think Congress ought to keep in mind in doing this. First, whatever legislation you enact I think ought to cover all potential American uses of military force, all situations when we are either using force ourselves or directly facilitating others to do so. I would include here not only what is normally covered under war powers but arms transfers and covert paramilitary and military operations. All of these have the same essential element, that we are getting ourselves involved in a situation of potential or actual conflict, of potential or actual controversy, and the decision and debate within the United States on those issues ought to occur before we start, rather than after. I think it is important to cover all of those elements because we have already seen that if you close one avenue of operation, the executive branch will use another. If we mean to say to a President don't start a war in most circumstances without consulting with the Congress, we need to say you can't start it by hiring an army to do it as well as by using the American military forces to do it. The second principle that I would suggest is that prior consultation ought to take place whenever the President is contemplating action in this general area. One of the problems with the War Powers Act is that it attempted to specify very precisely when consultation had to take place and has led to this linedrawing by the executive branch. I think what the President needs to be told by the Congress simply and clearly is that when you begin to seriously consult with your advisers about some use of military force, some new dispatch of American troops, some contemplated paramilitary or military operation, that is the time to consult. What you don't need is a legal opinion from your lawyers that you have not yet crossed some line drafted in a statute about how imminent the hostilities are. If you are doing something that is in that general area and if the question gets raised about whether you have to consult, then you should have to consult. The consultation process, in other words, should be based on the recognition of a shared congressional and Presidential obligation and responsibilities in this area, rather than on some legal linedrawing, which will always be subject to manipulation. Third, I think Congress needs to set up, as there now appears to be a consensus, some new mechanism which will enable the President to consult with the Congress. That needs to be some kind of small leadership committee with some kind of small staff, in my view, which the Congress clearly tells the President this is the group of people to talk to when you are contemplating some kind of military action. Finally, I think the legislation needs to provide that, except for genuine emergencies, of the kinds that have been suggested herethe rescuing of Americans held hostage, an attack on American forces, an attack on American territory-except for those genuine emergencies, prior consultation should be followed by explicit congressional approval before we begin to use or support military force. Now, as I suggested at the beginning, my view is that this is not only clearly constitutional, but clearly is based on Congress' power of the purse and the other powers that it is granted under the Constitution. But, at least as important, it is fully consistent with the spirit of the Constitution, with the intent of the Framers, that, in a democracy, the decision to go to war was too important to be taken in secret, too important to be taken without the concurrence of two branches of the Government. Moreover, that in the kind of world in which we live, given the lack of consensus to be taken for granted on foreign policy matters, it is essential to get that consensus before we start. It is far better not to intervene, even though some people think we should intervene, than to intervene and then be forced to withdraw because the consensus is not there to sustain the operation. I think we have learned again and again that we may be able to hold on for a while; but, in the end, if there is not a consensus, we will withdraw and withdraw in ways that are worse for our national interest than if we had not gone in at all. I think it is also clear that that consensus can be gotten only before we start. To quote Senator Vandenberg's famous phrase: "If Congress it not in on the takeoffs, it will not be in on the landings." Mr. CHAYES. The crash landings. Dr. HALPERIN. Yes, on the crash landings. And it is too late, after three engines have gone out and the plane is on its way down, to call the Congress and ask it to share the responsibility. That has to occur before the plane takes off. Finally, Mr. Chairman, I would suggest some skepticism about the attempt by people who have testified before me and others to rely on the courts to solve this problem. I am very skeptical that, no matter what the Congress does, no matter what it tells the courts about its responsibilities and obligations and powers under the Constitution, that a court will get in the middle, between the Congress and the President, on issues of war powers and the use of military force. I also have to say that I am doubtful whether it should get involved in those issues. We rely on the courts to settle a whole range of issues that we should rely on the political branches of the Government to settle, and it is hard for me to think of one more appropriate for settlement by the political branches and not by the courts than the question of the use of military force. Mr. Chairman, now that you are back, I wonder if I may close, rather than open, with a personal remark. I want to say how delightful it is to have you back here. I have missed you, the ACLU has missed your leadership on civil liberties questions. Senator BIDEN [presiding]. Do you hear that, Jesse? [Laughter.] Dr. HALPERIN. It is therefore a special pleasure for me to testify once again before this committee. I would like to ask that my full statement, with its attachments, be made a part of the record. [The prepared statement of Dr. Halperin appears in the appendix.] Senator BIDEN. I am delighted that you care and I am delighted that the ACLU missed me, and hopefully others maybe have, too. But I think you just blew my furniture deal. [Laughter.] That, of course, was a joke. Thank you very much for the kind words, Dr. Halperin. We are anxious to hear your testimony. STATEMENT OF RONALD D. ROTUNDA, PROFESSOR OF LAW, UNIVERSITY OF ILLINOIS COLLEGE OF LAW, CHAMPAIGN, IL Mr. ROTUNDA. Thank you. I am Prof. Ronald D. Rotunda of the University of Illinois College of Law in Champaign. I would like to submit as part of my written testimony a chapter of my three-volume treatise on constitutional law with the 1988 pocket part. Senator BIDEN. Without objection. [The information referred to appears in the appendix.] Mr. ROTUNDA. Thank you. It is hard to get to here from Champaign. I had a long flight last night. I left about 5 p.m. last night to get here this morning. We had a lot of muggy weather, but I really appreciate the hospitality of Washington, DC. When I arrived, I learned from the cabdriver that Congress has named a building after me, right in the center of town, and I appreciate that. [Laughter.] The notion of a broad Presidential power and Presidential discretion with respect to the war powers used to be a very liberal cause, for example, under Franklin D. Roosevelt. Typically now it is considered more liberal to limit Presidential power in the area of foreign affairs. No one wants an overzealous President to involve the United States in unnecessary hostilities. The issue is not that, I think. The issue really is this: Is the War Powers Act the most legitimate, the most constitutional way to meet that shared goal? On that score, I think I end up concurring with my former mentor, Senator Ervin. A wise President should normally consult with congressional leaders when involving the United States in hostilities. But, as Dr. Halperin has pointed out, is legal linedrawing the most constitutional, the most effective way to go? Historically, we know that Presidents of both parties have asserted a broad war powers. They have involved the United States in foreign hostilities about 200 times in 200 years using American forces abroad in order, among other things, to protect U.S. citizens abroad. We know that only Congress can declare war. But, the Framers rejected the notion that only Congress can make war. We know in modern times that the decision whether to call for a formal declaration of war is, in a very real sense, a political question. It may call into play various formal treaties. It is symbolically significant for the United States to be the first major nation since World War II to have a formal declaration of war. That is why I think all of the Federal courts that have been presented with the issue during the Vietnam era refused to judge the constitutionality of the Vietnam war. That is why all the Federal courts that have been presented with the issue under the War Powers Act have, for one reason or another, refused, as a political question or lack of standing, to reach those issues. The cases often point out that the President has unique knowledge, perspective, and authority to make those decisions; that for political reasons it is important for the United States to speak with one voice when dealing with people abroad; or that, even if the President makes mistakes-he is a human being and we expect mistakes-the remedy lies with Congress and not with the courts. In Baker v. Carr, for example, the court said that the guarantee clause was not justiciable, even if Congress told the President what to do and declared it to be justiciable. Chief Justice Warren said that the courts should not intervene in that area. I think the political nature of the war powers problem is underscored not only by the decision uniformly of all the lower Federal courts not to allow litigation on that question, but also by the fact and I think Dr. Halperin mentioned some of these points, and I agree with him on this-that the War Powers Resolution tries to convert important policy issues into technical, legal questions. I think courts have no legal standards to judge when are hostilities imminent enough or when is the emergency genuine enough. At the trial, will the President be called to reveal the sources of his clandestine knowledge in an effort to persuade a trial judge that it |