In each case, they represented a national pledge by the United States, but that pledge incorporates the very clear understanding that, in any given circumstance, the United States will proceed to deal with that pledge through its regular constitutional processes and that these processes have been in no way affected by the treaty.

Now, I wonder if you and the rest of the panel would comment on my understanding.

Mr. FRANCK. There have subsequently been commitment treaties, mutual security agreements and so on, which have spelled it out the way you have indicated it was understood. But I suppose the NATO and the Rio Treaties are salient in not containing, in the words of the treaty, that caveat, that we would respond in accordance with our constitutional procedures.

To the contrary, the NATO and the Rio Treaties stipulate that the United States will respond as if the United States were attacked. I would think it would not be very difficult to imagine that the other parties to the treaty and a future President of the United States, when viewing a frontal attack on West Germany, would say that he was constitutionally empowered to exercise what we have been calling his prerogative powers of self-defense because it was as if the United States were attacked and that there was a treaty to that effect.

My reason for bringing it up at all-and I did not mention it in my oral testimony-was simply in the category of tidying up. I thought that the present War Powers Act spoke both ways; that is, on the one hand it said that nothing in the War Powers Act shall affect any existing obligations, and on the other hand it said, however, no treaty obligations shall be read, either future or obligations or past obligations, as having authorized the President to act. I think if the Congress decides that NATO and Rio should be interpreted as you have said they should be interpreted, then one ought to say that in the Resolution, rather than leaving it in this gray area, or take out both clauses, or whatever. But there ought to be a deliberate policy because, at the moment, it seems as if you are doing two incoherent things.

Senator BIDEN. Thank you.

Professor Rotunda.

Mr. ROTUNDA. Just a brief addition.

I think that the understandings, our own understandings, that say we do it in accordance with our constitutional procedures do not decide the issue. They simply bring us back to this hearing: What are the constitutional procedures to respond to an attack, a frontal attack on Great Britain or West Germany or other countries in the NATO Treaty ?

It seems like a thousand years ago, but I recall as a little boy watching TV and John Kennedy was President. We had a little black-and-white TV in which I watched his announcement on the Cuban missile crisis.

If I recall his words correctly-and I think I do, because it was really significant to me at the time-he said that "We will treat an attack by Cuba on any country as an attack on the United States by Russia and respond with our full retaliatory ability," or words to that effect.

Now, I did not know much about the Constitution at the time, though I know a little more now, and I don't think he was acting unconstitutionally.

Mr. CHAYES. He was also acting under congressional authorization. A resolution by the Congress had been passed maybe 3 weeks before in anticipation of this very event.

John Kennedy recited it in his speech, as well as in the Quarantine Proclamation that he later made as authority for the action. He did not act on the basis of prerogative power or his power as Commander in Chief, although he recited his power as the Commander in Chief. But he also recited the authority granted by this congressional resolution.

Dr. HALPERIN. I think, Mr. Chairman, your understanding is wrong.

Mr. Acheson's letter is a classic example of a reassurance by the executive branch, which is not a reassurance at all, and which skirts the fundamental issue.

The treaty did not change and could not change our constitutional procedures for responding to various kinds of attacks. What it could do is create a fact which changes, then, the relative authority of the Congress and the President.

We all agree that if the United States is attacked-and we discussed that earlier-the President can respond without needing authority to attack. I think most of us would agree that if Ethiopia were attacked and the President wanted to go in, he would need the authority of the Congress to do so.

What the fact in the NATO Treaty said was that an attack on NATO is an attack on the United States.

That does not change the President's constitutional powers or the constitutional processes; but it changes which category that attack is in. This is because it says that an attack on NATO territory is an attack on the United States.

Önce Congress says that, then I think-and I think this was intended-that the President's authority to respond to that is exactly the same as his authority to respond to an attack on American territory.

What that authority is some people may dispute. But I think the treaty did change the situation by changing that fact. I think it was intended to, and I think if you read Mr. Acheson's assurance carefully, you will see that he has written it so as to appear to give an assurance, but, in fact, he clearly preserves that distinction, and I think he understood it at the time and intended it to be understood at the time.

Now I also have to say that one of the reasons it is important to keep American troops on the line is that it adds a second, clear emergency situation. This would not be true of the Rio Pact, but certainly no attack in the NATO area could occur without shooting an American soldier.

So, as far as NATO concerned, I think the issue is somewhat moot because the President would have the authority to respond to defend the soldiers being attacked.

Mr. CHAYES. I guess I do think that there is an ambiguity in the NATO issue. But I am not as clear-cut about it as Mort is.

That is to say, I do not think that a treaty can make West Germany a part of the United States.

Dr. HALPERIN. But I think if Congress ratifies it; it can.

Mr. CHAYES. No, I don't think so. I think it leaves the ambiguity there.

I think you are right that Mr. Acheson was very anxious to preserve the ambiguity. But I agree with Mr. Rotunda that it sort of returns us to our own internal constitutional argument. It does not resolve it.

Senator BIDEN. I have several questions that I may submit to you in writing.

I appreciate your taking the time and the public service that you provide by doing this. We appreciate it very much.

Thank you all.

This hearing is adjourned.

[Whereupon, at 12:51 p.m., the subcommittee adjourned, to reconvene at 10:05 a.m., September 23, 1988.]

THE WAR POWER AFTER 200 YEARS:
CONGRESS AND THE PRESIDENT
AT A CONSTITUTIONAL IMPASSE

FRIDAY, SEPTEMBER 23, 1988

U.S. SENATE,

SPECIAL SUBCOMMITTEE ON WAR POWERS

OF THE COMMITTEE ON FOREIGN RELATIONS,
Washington, DC.

The subcommittee met at 10:05 a.m., in room SD-419, Dirksen Senate Office Building, Hon. Joseph Biden (chairman of the subcommittee) presiding.

Present: Senators Biden, Sarbanes, Adams, Helms, Kassebaum, and McConnell.

Senator BIDEN. The hearing will come to order.

Welcome, Mr. Secretary, Admiral. It is a pleasure to have you both here this morning.

I have had the opportunity, thanks to your generosity in submitting your statements yesterday, to read both your statements.

The Special Subcommittee on War Powers today resumes hearings directed at answering a critical question: Can the War Powers Resolution of 1973 be amended, repealed, or replaced so as to improve the effective cooperation of the President and the Congress in national decisions concerning the deployment of American forces in situations of actual or likely hostilities?

In previous hearings, the subcommittee heard from legislators involved in the origins of the War Powers Resolution, from distinguished American historians, from former military leaders, from the State Department Legal Adviser, from former Cabinet officials of both parties, from former President Ford, and from highly regarded experts on the U.S. Constitution.

Today, the subcommittee will receive further significant testimony, beginning with the views of this administration's top officials in the Department of Defense-Secretary Carlucci and the Chairman of the Joint Chiefs of Staff, Admiral Crowe. The subcommittee will then hear from a panel of legal experts, comprising Prof. Louis Henkin, chief reporter of the latest restatement of foreign relations law; Prof. William Goldsmith of Brandeis University; and Prof. James Bond, dean of the Puget Sound University School of Law. I have said at the outset of each of these hearings that while the war powers issue is both intellectually complex and emotion-laden, its fundamental importance to the U.S. national interest requires that we bring to bear upon it the most thorough and dispassionate consideration. It is my hope that the subcommittee will provide a