gies may well require action that does not involve prior consultation.

I think that the statements of the Secretary of Defense and Admiral Crowe illustrated that this morning. I think it is simply a practical matter, and I don't regard it in any way as an insult to the Congress of the United States, that some kinds of policies cannot be efficiently or successfully executed if prior consultation is required.

I recall former Secretary of State Dean Rusk once saying, and I think he was quoting a former Director of the Central Intelligence Agency, that the ship of state is the only state that leaks at the top.

Senator BIDEN. Thank you.

Senator Helms.

Senator HELMS. You know, nothing seemed to me to be clearer than what was going on at the time this Resolution was passed, which was trying to fix something that was not broken.

Now, down through the years, until fairly recent history, there has been consultation, there has been coordination and cooperation between the President and the Congress, which is the way it is supposed to be. I think that is the point that you are making.

But if you go back, you cannot avoid the obvious conclusion that this whole thing was political.

I remember, Joe, prior to the time I lost my mind and ran for the Senate, wondering about the involvement in Vietnam the way we were. We had all sorts of advice about don't get involved in a ground war over there, and from some pretty respectable military leaders.

But you can Monday morning quarterback every one of the decisions. The fact is that the decisions were made, beginning with Eisenhower, and then with Kennedy, then with Nixon, then with Johnson, and all of this involvement was portrayed on the television networks night after night. It is the first war that I guess has ever been fought on the evening news in the United States.

So, you get all of these things. But the paramount political situation developed when the American people began to wonder why we were involved in a war that those boys were not allowed to win. That is it.

Now, Nixon, as a personality, we all know about. I think he was one of the brightest Presidents we ever had. He may not have been the best President in PR that we have ever had. But, even when you get to the veto of the War Powers Act, that veto was overridden by a margin of four votes.

Then you talk about the Cambodian situation. Well, you have to go back and look at what was going on and what went on after the political pressures forced us out of that situation.

Something like one-third of the population was slaughtered by the Communists. So, I guess I agree that the courts ought probably not to be forced to make a judgment on something that ought to be decided by the Congress and by the President, the Executive.

But here you are in the business of unscrambling an egg. You know, the War Powers Resolution is-period. It is.

I think we would be better off to scrap it and go back to precisely what you said, a voluntary consultation. We got along with that

fine with Roosevelt during World War II. I don't recall anybody running out to the radio announcers and the newspapers and condemning Franklin Roosevelt the way that Reagan has been condemned for a very appropriate, compassionate act with respect to Grenada, for example.

So, I wonder if I may ask both of you the question I have asked of every other panel of legal experts: Aren't we really talking about political considerations? Doesn't it boil down to that?

Dr. GOLDSMITH. You have made some very telling remarks in the course of the hearings with regard to history and history playing a role in the powers of the President. But I think we have to give attention to how we look at that history and how it is read.

If I can just for a minute take us into the 1950's, which we seem to forget, there was a military operation in Korea which, if put to a vote by the Congress, to my knowledge would have received every vote but that of Vito Marcantonio, who said he was going to vote against it.

Senator HELMS. That's correct.

Dr. GOLDSMITH. Under the advice of Dean Acheson, President Truman did not request the authorization of Congress to support that operation, and he was attacked on the floor of Congress by Senator Robert Taft, the distinguished constitutional lawyer and the son of a Chief Justice of the Supreme Court. Senator Taft argued that the law required consultation and authorization, and I think that President Truman lived to regret the fact that he did not seek such authorization, because he suffered politically later on-the Youngstown case is one evidence of that-because he did not have the authorization.

Senator HELMS. Excuse me, Dr. Goldsmith, but you are making my very point for me. It was political. Truman did regret it. But it was a political regret, rather than a constitutional one.

Dr. GOLDSMITH. When Eisenhower came along, President Eisenhower, he studied the Truman experience, I would imagine, very carefully, and he did go to the Congress and received authorization on two different occasions, a very substantial delegation of power. When I was listening to Mr. Carlucci this morning, I was thinking why doesn't the President go to the Congress if there are some questions that are-and Roosevelt was mentioned-of an "iffy" character or a very secret character, why doesn't the President go to the Congress, explain his situation, and perhaps ask for the authority of a more general nature to operate in some of these areas? Congress is certainly capable of considering such a request and granting it. Then you have the unified kind of bipartisan policy that we are talking about here.

The consultation is the nub of the problem. We don't seem to be getting consultation without mandating it.

Senator HELMS. Well, of course what you just said is a given. I am not derogating it at all. But what I am saying is that the other side of the coin is this. Supposing, as Frank Carlucci and Admiral Crowe-I believe Admiral Crowe said the same thing-suppose there had been that limitation over there in the Persian Gulf. The Soviets and all the rest of them would just have waited out that period, and they would have won.

But I still say that, with rare exceptions, any Chief Executive who does not understand the necessity of doing what every President prior to recent times has done-and I think Ronald Reagan has done it, or tried to, consult with the Congress-but he has to consider sometimes the people who rush out to the television cameras or get on the telephone and whisper "leaking" information, and that sort of thing. That involves the security to our personnel and the success of the mission.

Now, I don't apologize one syllable for the President's action with respect to Libya or with respect to Grenada. I think he was right.

Others may say that he was not, and that is for them to say. The facts are contrary to that.

I would like to hear your answer to the question.

Mr. BOND. The question is are we really talking about questions of politics. I indicated earlier that I thought that these kinds of questions were quintessentially questions of politics.

Let me just add this.

I am a lawyer. I am devoting my life to the education of young men and women to become lawyers. I teach constitutional law. I write in that area. I believe, with Gladstone, that it is the greatest single document ever struck off by human hands. But I would add this. We cannot find answers to all of the problems that bedevil us in the Constitution or in legal procedures.

One of the reasons that the Constitution is such an extraordinary document is that it remits to the political processes a broad range of questions that cannot be fairly or efficiently resolved by resort to law.

Now, arguments based on constitutional allocations of power are wholly appropriate in the political context. They are not excluded from the political context. But they are only one basis upon which responsible Congresspersons and Presidents made decisions.

Senator HELMS. Mr. Chairman, thank you very much.

I might add that Dean Bond served on the faculty of a distinguished university in North Carolina, named Wake Forest, where I happened to go to school some years ago, more than I would like to specify.

I thank you and I thank you, Dr. Goldsmith. If Professor Henkin were still here, I would thank you.

I do thank you all.

Senator BIDEN. There are a number of questions that could continue this process. I don't want to keep you any longer. And Senator Helms and I could continue to argue over why the American public came to the conclusion it did on the war in Vietnam.

But neither would be fruitful at this moment.

So, I thank you gentlemen very much for your time and your testimony.

Unless you gentlemen have any comment that you would like to make, we will adjourn the hearing.

Senator HELMS. Thank you very much.

[Whereupon, at 12:54 p.m., the subcommittee adjourned, to reconvene at 10:18, September 29, 1988.]

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

THURSDAY, SEPTEMBER 29, 1988

U.S. SENATE,

SPECIAL SUBCOMMITTEE ON WAR POWERS

OF THE COMMITTEE ON FOREIGN RELATIONS,

Washington, DC.

The subcommittee met at 10:18 a.m., in room SD-419, Dirksen Senate Office Building, Hon. Joseph Biden (chairman of the subcommittee) presiding.

Present: Senators Biden, Adams, Helms, Pressler, and McConnell.

Senator BIDEN. The hearing will come to order.

Good morning.

We have two distinguished panels, a total of eight distinguished persons, testifying today as the Special Subcommittee on War Powers holds the last in an extensive series of hearings directed at answering a critical question: Can the War Powers Resolution of 1973 be amended, repealed, or replaced, in order to improve the effective and efficient cooperation of the President and the Congress in national decisions concerning the deployment of American forces in situations of actual or likely combat or 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 Čabinet officials of both parties, and from former President Ford; from the current Secretary of Defense and the Chairman of the Joint Chiefs of Staff; and from highly regarded experts on the United States Constitution.

Today, the subcommittee will receive further testimony from two panels of distinguished legal experts. I think one or two members of these panels have had the opportunity to look over the highly tentative piece of draft legislation entitled "The Use of Force," that I, with the help of John Ritch and others, prepared as a focal point for analysis.

Not today, perhaps, but later, I will welcome the comments of all of our panelists on that draft. It is by no means clear that we will move ahead with such legislation; but I am anxious to hear your comments at a later time, if you would be willing.

In the weeks and months ahead, while the Congress is in adjournment, the subcommittee will continue its efforts to discern

whether new legislation could resolve the constitutional impasse in which we find ourselves and give us a practical, working piece of legislation under which Presidents would be willing to participate in the process with Congress and the Congress would be willing to step up to its responsibility to participate, as I believe it should.

In that period, which will require a lot of hard thinking about constitutional legalities and practical realities, we will welcome the intellectual contributions of the experts who have agreed to appear before us today.

We have a lot to do and I suggest we begin.

Our first panel consists of Prof. Edwin B. Firmage, University of Utah, College of Law, in Salt Lake City, UT; Prof. Michael J. Glennon, University of California, Davis, Law School, Davis, CA; William Taylor Reveley III, Esquire, practicing attorney and author from Richmond, VA; and Prof. Robert F. Turner, Associate Director, Center for Law and National Security, University of Virginia Law School, Charlottesville, VA.

Gentlemen, welcome to you all.

Why don't we begin in the order that your names were called, unless you all have decided there is a more rational way to proceed.

Professor, welcome.

STATEMENT OF EDWIN B. FIRMAGE, COLLEGE OF LAW,

UNIVERSITY OF UTAH, SALT LAKE CITY, UT

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

Let me simply summarize very quickly a much longer paper in six quick points.

Senator BIDEN. By the way, before we begin, I would like your entire paper placed in the record.

Mr. FIRMAGE. Of course. Thank you very much.

The war power of Congress is complete. The war power of the United States, in the sense of the decision for war or peace, is entirely in the Congress of the United States.

The sole exception to this is the power of the President to respond to sudden attack upon the United States.

The text makes this abundantly clear, the power to declare war and grant letters of marque and reprisal.

The first century of our history bore out this interpretation. There were exceptions, as Presidents exceeded the empowerment of statutes of Congress, but never until Korea and Vietnam did you have an effort to justify, under the Commander in Chief clause, a separate base of power to decide for war.

The Commander in Chief clause in the original understanding simply made the President Congress' general. These were the terms of Alexander Hamilton, a proponent of strong Presidential power. He, nevertheless, saw the paradigm shift from a European model of a monarchical power to decide for war to a congressional power to decide for war or peace.

Thomas Jefferson, though not present at the Philadelphia convention, where the Constitution was struck, rejoiced at this change, and he noted that they had gone a long way toward chaining the "dog of war."