wrote about in the next edition of "Profiles in Courage." I just don't see it.

Secretary CARLUCCI. You are obviously correct if there is an immediate vote.

But the point we are trying to make is that it automatically introduces an element of doubt, the way it is currently structured, with a clocklike mechanism, in the adversary's mind.

There is nothing to prevent the Congress, on its own initiative, from taking an affirmative vote, and I would hope that it would do that from time to time, on its own initiative, in implementing the War Powers Act.

Senator BIDEN. What would happen if, immediately upon the deployment of troops, the Congress voted and 51 percent of the Congress said you can't do that, Mr. President, bring the troops home? Would you feel bound to bring them home?

Secretary CARLUCCI. I think any President would have to give very heavy weight to that.

Senator BIDEN. But not constitutionally? Not legally?

Secretary CARLUCCI. You are a lawyer, Mr. Chairman, and I am not. Therefore, I am not prepared to make the legal argument.

Senator BIDEN. You're the best negotiator I've ever seen, though. Secretary CARLUCCI. But I cannot conceive of a President not giving that heavy weight, particularly since he knows the funding bills are to follow.

Senator BIDEN. OK.

We promised you that we would get you out of here somewhere around 11:15. We obviously have broken that promise.

It is now a quarter to 12, and I just hope this does not mean, Admiral, that Dover Air Force Base will be going to New Jersey. [Laughter.]

I want to thank you both. Your testimony is extremely valuable.
Secretary CARLUCCI. Thank you, Mr. Chairman.

Senator BIDEN. It was a pleasure to have you both.
Secretary CARLUCCI. It was a pleasure being here.
Admiral CROWE. Thank you, Mr. Chairman.
Senator ADAMS. Thank you both.

Senator BIDEN. Our next and distinguished panel is a panel of legal scholars: James Bond, Esquire, Dean of the University of Puget Sound School of Law, Tacoma, WA; Dr. William Goldsmith, former Emeritus Associate Professor of American Studies, Brandeis University; and Louis Henkin, Esquire, University Professor Emeritus, Columbia University School of Law, New York, NY.

Would you all please come forward.

While you are coming forward, I understand that Professor Henkin has a particular time constraint. If his colleagues would be willing, I ask that Professor Henkin be allowed to testify first, even though his name was called last, unless one of the two of you has a more urgent time commitment or plane to catch.

Senator ADAMS. Mr. Chairman, if I might, I would welcome Dean Bond here today. He is from the State of Washington.

I am particularly pleased that you are here, Dean Bond. If I have to leave, gentlemen, during your testimony, it is because I have to preside today at 12 o'clock. I wanted to say that,

Mr. Chairman, because I am extraordinarily interested in their testimony, and I will read it carefully.

I thank you, Mr. Chairman, for the opportunity to welcome Dean Bond and the other members of the panel.

Senator BIDEN. I want the record to show that Dean Bond has been invited here not because there are two Senators from Washington on this committee, but because of his legal expertise.

Let us now proceed with Professor Henkin's testimony.

Professor, welcome back. The last time we had your testimony was on another subject crucial constitutional subject: The treaty power.

Welcome back.

STATEMENT OF LOUIS HENKIN, ESQUIRE, UNIVERSITY PROFESSOR EMERITUS, COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

Mr. HENKIN. Thank you very much, Mr. Chairman.

I am glad to be here. I am glad to see you well and here with us. My name is Louis Henkin, and I am a professor at Columbia University. I have held chairs in both constitutional law and international law and have written extensively on foreign affairs and the Constitution.

I was pleased to be invited to join in your deliberations.

As we have already heard, the subject you are considering is large and controversial. I shall make some brief general comments on the constitutionality of war powers legislation, which is the one field in which I can claim some expertise. I will address some of the difficulties with the present text of the War Powers Resolution and make some suggestions for its improvement.

Of course, I will answer any specific questions, if I can.
I begin with the Constitution.

Mr. Nixon vetoed the War Powers Resolution principally on the ground that it was unconstitutional; but his veto message did not detail which provisions of the Constitution the Resolution violated. He said only that it would "take away * * authorities which the President has properly exercised under the Constitution for almost 200 years."

*

Now there may be elements in the present Resolution that raise serious constitutional questions: Surely, the Chadha case, which invalidated the legislative veto in sweeping terms, casts a heavy shadow on section 5(c). I will say another word about that in a moment.

But, in general, and in principle, in my view, Congress had the constitutional authority to enact the War Powers Resolution and, therefore, has the power to amend or rewrite it in the same spirit.

My view can be stated simply: The power of Congress to declare war means the power of Congress to decide when, where, and whether the United States shall go to war. Congress can direct the President to fight a war; Congress can direct the President not to fight a war. It can tell the President in what circumstances to fight

a war.

Congress can also, I believe, direct the President to end a war.

In my view, then, Congress can also act what I would like to call "prophylactically," and direct the President to refrain from activities that, though themselves "short of war," are "close to war," or create a reasonable likelihood that they may lead to war.

Congress, in fact, exercises this kind of prophylactic war power in much of its defense legislation, which is within the power of Congress because it is necessary and proper to carry out the war powers of Congress.

So, war powers legislation, I am satisfied, fall clearly within the war powers of Congress. The question is whether it is prohibited or limited by other constitutional provisions.

In this case, the argument which Presidents in effect raise is that congressional power may not usurp or infringe on powers granted to the President by the Constitution. That, I assume, is the unarticulated argument of the Nixon veto message.

Nothing in the Constitution limits the power of Congress to forbid warmaking by the President. That should be obvious. The Constitution does not give the President power to make war, and no President has ever claimed such power. Therefore, Congress can deny him such power without infringing any Presidential authority.

But for over 200 years, Presidents, without authorization from Congress, have engaged in activities involving uses of force which one might call force "short of war." And it is presumably those activities to which the Nixon veto message referred when it said that the Resolution would "take away *** authorities which the President has properly exercised under the Constitution."

It is unnecessary to reopen now and here debates as to whether the President had constitutional authority to engage in some or all of those hundreds of instances of the use of force short of war. History has confirmed the general practice, and neither Congress nor the courts have challenged any particular use of force.

If historic practice contributes to the development of constitutional authority, Presidents can surely claim to have acquired some authority to use some force in some circumstances. But history has confirmed the President's power to act when Congress is silent and acquiesces. There is no history to support a view that the President can act when Congress denies him the power.

In the terms that we have come to use, then, the most the President can claim, I believe, is a concurrent power, one he can invoke when Congress is silent.

When Congress acts to regulate Presidential activity, when the President presumes to flout the will of Congress, his power is, as Justice Jackson put it, "at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

I add a sentence from Justice Jackson's opinion, cited in the note at the bottom of my prepared statement, which echoes something I heard this morning from the subcommittee. Justice Jackson continued: "Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

In other words, the question is are there limits on what the Congress can do in these respects; we are not discussing the limits on what the President can do.

I will sum up: Congress can prohibit or regulate any activities that amount to war, and there is a strong case that Congress can regulate Presidential resort to hostilities "short of war" when involvement in such hostilities is likely to lead to war.

On this view, I think one can reduce, and perhaps even render irrelevant, the controversy about the President's constitutional authority that has swirled around section 2(c) of the War Powers Resolution. There, Congress declared that, in its view: "The constitutional powers of the President, as Commander in Chief, to introduce United States armed forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

As a statement of Presidential authority, section 2(c) is too narrow for some and too broad for others.

Presidents see it as denying them constitutional authority to do what they have done in hundreds of cases. On the other hand, others have argued that the Framers contemplated only one situation in which the President can go to war on his own authority, and I quote: "to repel sudden attacks" on the United States.

That quotation is from the motion made at the Constitutional Convention to change the words Congress shall have the power "to make war" to Congress shall have the power "to declare war," because they wanted to leave to the Executive the "power to repel sudden attacks."

I submit that in the Constitution, in the Framers' minds, in later history, that was the only power given the President to do what we would call "going to war."

Some argue that section 2(c) seems to recognize Presidential authority not merely to repel an attack but to wage war. Moreover, it is argued, to permit Presidential war in case of attack "on its armed forces" opens a wide loophole: It might be construed to permit Presidential war not only when an enemy begins a war by attacking U.S. Armed Forces, but even in response to a terrorist incident in which a few U.S. soldiers were killed, as in the wellknown incident in Berlin, in 1986.

On the other hand, even some who see little room for Presidential warmaking think that the President ought to be able to use reasonable and proportional force to extricate U.S. nationals who are held hostage or who are otherwise in danger, even if such use of force puts U.S. forces, in the terms of the War Powers Resolution, "into hostilities or into situations where imminent involvement in hostilities is indicated."

I suggest that, instead of engaging in difficult debate as to what the President may do under the Constitution on his own authority, Congress should consider laying down guidelines as to the circumstances in which force may be used, in addition to improving the procedures for monitoring such uses, which I will address below.

Then the President could clearly use force lawfully in the circumstances indicated by Congress, and he would do it by authority of Congress, if not of the Constitution. But he could not lawfully engage the United States in warlike hostilities in circumstances other than those specifically authorized by Congress, unless Congress should provide special authorization.

In other words, I am suggesting that Congress assume responsibility for the exercise of war powers by authorizing their exercise in some very special, very narrowly defined circumstances.

Congress should also attempt to redefine the kinds of "use" of the Armed Forces it seeks to regulate. That is not easy to do. The War Powers Resolution attempted to do that by regulating the introduction of U.S. forces "into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

That formula has proven unsatisfactory. "Hostilities" may include uses of force that do not plausibly court war and whose links to the war power of Congress are not intimate. Even if Congress could constitutionally reach every "involvement" in "hostilities," the formula used may reach some deployments of forces that Congress does not wish to regulate. A less-sweeping definition, moreover, may reduce constitutional objection and Presidential reluctance to comply.

I suggest that:

Congress redefine the kinds of activities that trigger regulation. One way of doing that would be by adding a section defining "hostilities," perhaps by linking them to acts of war under international war or "activities that will probably involve U.S. forces in war or warlike activities." It will be difficult to write a good definition, but it is worth trying and the result will be better than what we have now.

Then, Congress should authorize the President to introduce forces into hostilities, as defined, in specified circumstances or for specified purposes; for example, to repel attacks-properly defined-on the United States or on its Armed Forces, or to extricate U.S. hostages or other nationals who are in danger.

Third, improved definitions are necessary, but they will not be sufficient to achieve effective congressional control of and participation in war-related decisions.

In my view, it is necessary also for Congress and the President to establish a continuing, regular body, including Executive and congressional representation at the highest levels, to review world affairs, anticipate situations that might lead to U.S. involvement in hostilities, as defined, consider any uses of force that the President may be contemplating, and monitor the process of any such involvement if it is initiated.

Deliberations in such a body could lead to wider congressional consultation or to formal congressional action, where necessary.

I offer now some brief comments on the present War Powers Resolution.

In the War Powers Resolution, Congress declared that the President's powers to use force were strictly limited, then proceeded to regulate Presidential uses of force. It has never been clear to me whether the regulations apply to the few circumstances in which