In the House of Representatives, 110 Members attempted to sue the President, claiming he had not fulfilled his obligations under the War Powers Resolution. Judge Revercomb of the U.S. District Court for the District of Columbia dismissed the suit, saying, "The President must have flexibility in executing military and foreign policy on a day-to-day basis."

Had the 110 Members of the House of Representatives been able to persuade a total of two-thirds of the House and Senate of their position on the President's Persian Gulf policy, there would have been no reason to solicit support from the courts. As Judge Revercomb stated when he dismissed their suit, their action was a "byproduct of political disputes within Congress"; and for him to rule on the issue would have been to "impose a consensus on Congress" that it had not achieved on its own. Congress, he said, is "free to adopt a variety of positions on the War Powers Resolution, depending on its ability to achieve a political consensus."

Mr. Chairman, I believe that 15 years of experience with the War Powers Resolution is enough to see that it is incompatible with the constitutional scheme set out by our Founding Fathers. The executive branch, by design, is a hierarchy, ultimately responsive to a single Commander in Chief, elected by all the people. It alone is capable of immediate, clear, coherent, and consistent action. The legislative branch, by design, brings 535 independent actors into a deliberative process which hears the voices of Americans everywhere on every issue.

There is nothing deficient in Congress' constitutional power of the purse, as every executive agency head knows from painful experience.

Schemes to inhibit the constitutional powers of the President, or to substitute self-enforcing legislative mechanisms for the exercise of responsible leadership, only serve to obscure the real source of many Members' frustration-namely, their inability to persuade their own colleagues to agree with them and to vote with them.

When the American people overwhelmingly and strongly believe that the President's policy must be reversed, the Congress will reverse it. The simple test of whether the American people generally hold to this view is to count the votes in Congress. If the votes are not there, neither is the popular mandate.

A former chairman of the Senate Committee on Foreign Relations, the late Senator Frank Church, offered some candid observations about the War Powers Resolution in a hearing much like this one, held in 1977. An original supporter of the legislation, he subsequently came to doubt its utility.

Senator Church gave the following explanation, and I quote:

First, if the President, as Commander in Chief, uses the Armed Forces in an action that is both swift and successful, then there is no reason to expect the Congress to do anything other than applaud.

If the President employs forces in an action which is swift, but unsuccessful, then the Congress is faced with a fait accompli, and, although it may rebuke the President, it can do little else.

If the President undertakes to introduce American forces in a foreign war that is large and sustained, then it seems to me that the argument that the War Powers Resolution forces the Congress to confront that decision is an argument that overlooks the fact that Congress, in any case, must confront the decision because it is the Congress that must appropriate the money to make it possible for the sustained action to be sustained.

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Senator Church concluded by saying:

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So, I wonder, really, whether we have done very much in furthering our purpose through the War Powers Resolution. * * As a practical matter, I think it is going to come down to the arena of politics and the tug of war between the two branches in the self-assertion of their two powers. There is no neat formula that can accommodate the needs of the future in this respect.

That is why I believe that the most prudent step the Congress can take to clarify the issue of war powers and to maximize the effective and legitimate exercise of authority by all three branches of Government is to repeal the War Powers Resolution and return to the only formula I know of which will withstand the test of time; namely, the Constitution.

Mr. Chairman, I recognize that the committee is interested in exploring the merits of specific proposals embodied in Senate Joint Resolution 323. Although I see no necessity for war powers legislation, I am prepared to comment on the proposed legislation. With the chairman's indulgence, I would ask that my prepared statement be entered into the record, since it includes some specifics on that.

Senator BIDEN. Without objection.

[The prepared statement of Secretary Carlucci appears in the appendix.]

Senator BIDEN. Admiral, you had quite an introduction, putting you into the same category as Clausewitz.

ry.

Usually, Secretaries of Defense are not quite that complimenta

Admiral CROWE. It came as a surprise to me, too, Mr. Chairman. [Laughter.]

Senator BIDEN. Admiral, please proceed.

STATEMENT OF ADMIRAL WILLIAM J. CROWE, JR., USN,

CHAIRMAN, JOINT CHIEFS OF STAFF

Admiral CROWE. Mr. Chairman, I have submitted a statement for the record.

Senator BIDEN. It will be placed in the record in its entirety, and I have read it.

Admiral CROWE. It is from the standpoint of the military, as opposed to either legal or constitutional authority. It reflects generally the views that have been expressed by the Secretary. I would propose that I not read the statement, Mr. Chairman, so that you can get right to your questioning period.

Senator BIDEN. Thank you.

[The prepared statement of Admiral Crowe appears in the appendix.]

Senator BIDEN. Since we have such good participation, why don't we stick to a 10-minute rule. We may have trouble getting through, but, notwithstanding the suggestion of my able colleague from Maryland, who suggested 5 minutes, 5 minutes is only enough time to say your name and ask one question. It is like a Presidential press conference.

I would like to avoid that, if I can. So we will have 10 minutes. As a matter of fact, I avoided it, though not by design. [Laughter.]

Your statement is based upon the premise that the War Powers Resolution is unconstitutional, but you also discuss the practical limitations of the law.

In 1980, the Legal Counsel for the Justice Department, in its most formal pronouncement on the War Powers Resolution, said, and I quote:

We believe the Congress may, as a general constitutional matter, place a 60-day limit on the use of armed forces, as required by section 5(b) of the Resolution. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of armed forces abroad.

Continuing with the quote: "We cannot say that placing that burden"-the "burden" meaning the 60-day limitation-"on the President unconstitutionally intrudes upon his Executive powers. Congress can regulate the President's exercise of his inherent power by imposing limits by statute."

Now, obviously you and Mr. Sofaer, speaking for the administration, disagree.

Admiral Crowe also disagrees.

But what I find significant is that, by and large, your arguments are not so much arguments against the War Powers Resolution, but arguments against any-any- limitation, constitutional or statutory, on the President's warmaking power.

Mr. Sofaer said, and I quote. "Explicit legislative approval for particular use of force has never been necessary." This seems to be an argument that is tantamount to saying that the President could have used armed force in all American wars, without any declaration of war or any direct congressional approval.

I find the same theme in your statement today.

Accordingly, I would like to ask you the simplest of questions. Can you give me an example, Mr. Secretary, of some use of the Armed Forces that the President would not have been authorized to undertake without direct congressional authority, or, in your view, is the President authorized to undertake any use of force if he believes it serves U.S. interests?

Can you name any initial undertaking of use of force in the last 50 or 60 years where the President required congressional authorization to go forward with?

Secretary CARLUCCI. Mr. Chairman, I am not a constitutional lawyer, but I would assume most authorities would agree that President Roosevelt needed a declaration of war at the time of the Pearl Harbor attack.

Senator BIDEN. Why?

Secretary CARLUCCI. I would say that I am not prepared to make the legal arguments. But let me elaborate a bit because I think you altered a bit the argument I was trying to make.

I was not arguing against any congressional involvement. It seems to me close and continuing consultation is an essential feature of any national policy, and I think my record speaks quite clearly on this. I have always consulted with the Congress.

Furthermore, the Congress does have a very strong power of the purse, and I pointed that out in my testimony. So, we are a long way from saying there should be no role for Congress in the use, the judicious use, of military action.

I think there should be consultation. I think Congress does have an oversight rule and I think they have a very substantial power in the power of the purse. Whether there has to be a formal declaration of war or not, I would defer to the legal scholars on that.

Senator BIDEN. Well, today your statement and the Admiral's statement seem to say that the President really cannot be limited on the initial question of whether or not he or she commits American forces; that the commitment of those forces is solely a judgment made by the President.

Secretary ČARLUCCI. That, in my judgment, is a fair characterization. If we were to have a nuclear attack, the President has to have the liberty to act.

Senator BIDEN. I understand that. I am trying to establish some parameters here. That is why I asked you the question, not as a legal scholar but as a very informed man. Of all the people with whom I have worked over the years, you are one of the most capable people.

I am not asking you for a legal opinion. But I am asking if you can think of any undertaking where there was an initial commitment of U.S. forces that would have required congressional authorization?

Is there any circumstance where the President, once he consulted with the Secretary of Defense, the Secretary of State, the Joint Chiefs of Staff, and determines that U.S. interests were at stakeand that is a pretty broad statement, as we all know; bases in Portugal are of United States interest; the invasion of West Germany is of United States interest; the invasion of Florida is of United States interest; a nuclear attack is a United States interest-would be required to seek congressional authority before committing U.S. forces?

Secretary CARLUCCI. Once again, I am getting into legal areas, where I am not very steep. But my understanding of what the legal experts are saying, at least in the administration, is that there are no such constraints.

Whether it is desirable is another issue.

Senator BIDEN. OK. I just want to make sure that we understand where we are starting from. The administration says there are no constraints on the commitment of U.S. forces, and, further, you argue in here, as the administration has, that the Congress has no ability to set a time limitation on that commitment.

So, we have two pieces. One, when the President makes a judgment to send 2, 2,000, or 200,000 troops to a place where he concludes U.S. interests are at stake, there is no limitation on that. That is the administration's position.

Second, once he or she does that, Congress cannot limit the amount of time they can be there. The only thing that the Congress can do is cut off the money for those troops.

Secretary CARLUCCI. Well, we had the case of the Lebanon resolution, where the President accepted a timeframe.

Senator BIDEN. Yes, if he accepts.

Secretary CARLUCCI. Yes, if he accepts a timeframe. But my understanding of the legal arguments-and, once again, I am over my head on legal arguments-is that the President cannot be obliged to accept a time limit.

Senator BIDEN. I understand.

I have a number of questions and I am going to come back to them because I think this is critically important testimony here this morning.

Admiral CROWE. Mr. Chairman, may I add a word to that?

Senator BIDEN. Sure, Admiral, please do.

Admiral CROWE. If I understand you correctly, you are trying to bound the problem.

Senator BIDEN. Yes.

Admiral CROWE. I did not realize that I said that it was unconstitutional, because I do not consider myself competent to make a statement like that. But, from a practical standpoint, it seems to me that in general hostilities, such as we engaged in in World War II, it is imperative, if not for legal reasons, it certainly is for practical reasons, that the President have a declaration of war because, obviously, at some time in the course of those proceedings, he is going to have to commit force and do things that are not directly related to the incident that started the whole thing. And look at what we did in World War II. We fought all over the world. Many of those things-when we went into India in order to get to China-were not a direct causal connection, and so forth. Take North Africa: We did not get to Europe except in going through North Africa.

Now that is not like Lebanon or Grenada or the Persian Gulf. That is a completely different order of battle. I can't imagine a President that would contemplate doing that without going to the Congress.

Senator BIDEN. What about sustained hostilities, whether or not they are general?

Admiral CROWE. Well, they have some similarity. But I think even then, if it is limited to an area, it is different.

Senator BIDEN. But, at any rate, I will yield now to my colleague, Senator Helms.

Senator HELMS. Thank you, Mr. Chairman.

First of all, Frank, this is an excellent statement. Of course, you and the distinguished Chairman of the Joint Chiefs have been up here twice this week. One time we did not totally agree, and this time we did totally agree. I like it better this way.

Secretary CARLUCCI. So do we.

Senator HELMS. Mr. Chairman, I think that the Secretary's statement answers the question that you asked.

Now, I'll be a little more blunt than he was. The War Powers Resolution, which we call the War Powers Act, was conceived in political upheaval. It was, more than anything else, an expression against the Vietnam war, where we sent hundreds of thousands of men to the other side of the world to fight a war that they were not allowed to win.

You and I were in our first year in the Senate when this was passed, and I have remarked on a number of occasions-and I know I will be boring my colleagues when I say this again-that I remember taking that proposed legislation home one night to study it. The next morning I called Sam Ervin, who was a pretty good country lawyer and constitutional authority, in my judgment.