The power over foreign relations, the matrix within which the war power sits at the heart of congressional power, was clearly meant to be collegially conducted and determined by the Congress and the President. The treaty power, I think, as Louis Henkin demonstrated a decade ago, gives us this insight.

Unlike the present time, in the 18th century, foreign relations would have been conducted dominantly through the treaty power, and there, with the Senate and the President joining together, we see the original idea.

A relevant question, nevertheless, after any analysis of original intent, is whether two centuries' experience and radical changes in technology make that original understanding insufficient.

I believe quite the contrary.

As one looks at ICBM technology and at the power of thermonuclear weapons, I see nothing so enticing in nuclear war as to encourage us to make war more easily accomplished, rather than less.

I think, quite the contrary, that every restraint of law on Government and diplomacy should be placed upon the inclination to go to war that possibly can be.

While one thinks, perhaps loosely without thinking it through, that ICBM time of 15 minutes, or 20, or 25 minutes, might make a quick decision absolutely necessary, when you stop and think about the actual situations where nuclear weapons could possibly be used, if, in fact, deterrence fails, what's the hurry?

If you think through the scenarios of the likely use, or first use, particularly, of nuclear weapons, I see no reason to drop restraints of the Congress of the United States upon a decision for war or peace, but enormous reasons to do just precisely the opposite.

Beyond the question of the use of nuclear weapons, I would like to address two more issues.

I believe that covert war has come to be the type of war of our time. I would hope that in some manner the War Powers Resolution can be strengthened to cover covert war.

Two factors, I believe, combined to make covert war the form of international violence of our time. First, the enormous power of nuclear weapons, paradoxically, limited the likelihood that they would ever be used. Second, a Manichaean world view-seeing the world in an absolutist vision of good and evil-grew understandably out of our experience in World War II. In that war, far more than in World War I, Vietnam, the Korean war, or the War of 1870, totalitarian dictatorships made war against nations at peace. But it would be disastrous to adopt this black-and-white world view as the paradigm rather than the exception. We emerged from World War II, nevertheless, with the view that we were continuing to fight against unadulterated evil, therefore excusing what ever vicious means we chose to employ.

We have been so totally assured of our own righteousness and yet deterred from all-out war in the model of World War II that we have waged covert action, and done so, I think, with great harm to others and to ourselves.

I think we have had short-term embarrassment and long-term disaster consistently in our use of covert action and covert war.

Congress is responsible for this form of war not one whit less than for overt war. The term "grant letters of marque and reprisal" in the 18th century was a way of saying Congress has the total war power, announced, declared or undeclared, public or private, fought by the official forces of this country in uniform or by mercenaries, done by whatever means. If one wanted to make Francis Drake, pirate, who was preying upon Spanish shipping and who might be hanged as a criminal if caught, into Sir Francis Drake, confidant of the Queen, empowered and authorized by the state, one granted letters of marque and reprisal.

When we see mercenaries not authorized by the Congress of the United States fighting war or committing acts of war, we see abuse of the war power of Congress by the President.

Finally, how do we go about remedying these things?

I think the reality is that the view that the courts are the least dangerous branch is most surely true here. They are the least dangerous and the least helpful. They have the least power.

I hope that there are ways, probably peripheral, that the courts can come into play, and I have proposed this in my testimony. I have slight hope, really, that the central issues will be resolved there. The only other big guy on the block with the President of the United States is the U.S. Congress, where the war power was originally reposited and where it should remain.

I support the War Powers Resolution with great reluctance. I think it is simply the least worst way we have practically available now of going about things.

It assumes continued Presidential initiative in committing American troops into hostilities or situations where hostilities are likely, and it assumes congressional subservience in this process, both in reporting and consulting roles.

In the original understanding-and in my view, nothing has happened since then to change the wisdom of that understanding-we should be speaking of congressional authorization, not consultation and of censure or impeachment, not reporting, for Presidential violation of congressional power over the decision for peace or war.

I support strongly the War Powers Resolution but only because practically I do not see at this present time how to restore congressional virtue that was lost, I think tragically, in Korea and Viet

nam.

Thank you.

[The prepared statement of Mr. Firmage appears in the appendix.]

Senator BIDEN. Thank you very much, Professor.

Professor Glennon.

STATEMENT OF MICHAEL J. GLENNON, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, DAVIS, LAW SCHOOL, DAVIS, CA Mr. GLENNON. Thank you, Mr. Chairman.

Let me begin by thanking the subcommittee for inviting me to be here today.

I wish to note at the outset that, although I serve as counsel to the congressional plaintiffs in Lowry v. Reagan, the views that I ex

press here today do not necessarily represent those of my clients in that case.

My remarks will be directed to the constitutionality of the War Powers Resolution and also to the Use of Force Act set forth in Committee Print No. 1.

I understand that Committee Print No. 1 is intended not as a proposal but, rather, as a focal point for analysis. I believe that each of its provisions is constitutional; but I am less convinced that certain of those provisions are wise from a policy perspective. I would thus suggest that primary consideration be devoted to policy considerations in Committee Print No. 1.

In discussing issues of constitutionality, it seems appropriate to begin with a comment upon the September 14 testimony of the State Department Legal Adviser, Abraham Sofaer. In that testimony and in his answers to the chairman's written questions, Mr. Sofaer launched a broad attack upon the congressional warmaking power, referring throughout to "independent" power conferred upon the President by the Constitution and reiterating the proposition, transposed in various forms, that independent Presidential power is not subject to statutory limitation.

The observation is, of course, true and, indeed, truistic: What his claim comes down to is that Congress cannot act unconstitutionally.

Yet, Mr. Sofaer repeatedly overlooks the fact that there is a second category of Presidential power that is subject to congressional regulation: concurrent power. This is constitutional power that may be exercised initially by the President in the face of congressional silence, but which Congress may, nonetheless, subsequently choose to restrict.

It is this class of power to which Justice Jackson referred in his famous concurring opinion in the 1952 Steel Seizure case.

In that case, in which the Supreme Court struck down the seizure of the steel mills during the Korean war by President Harry Truman, Jackson wrote: "Presidential powers are not fixed, but fluctuate, depending upon their disjunction or conjunction with those of Congress.' He continued, "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers, minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."

The Supreme Court formally adopted Justice Jackson's mode of analysis in Dames & Moore v. Regan, in which Justice William Rehnquist applied Jackson's approach to uphold President Jimmy Carter's Iranian hostage settlement agreement as having been authorized by Congress. In so doing, Rehnquist wrote that Jackson's opinion "brings together as much combination of analysis and commonsense as there is in this area."

Rehnquist then quoted from Jackson a passage that, today, in this context, is as significant as it is timely. He said: "The example of such unlimited Executive power that must have most impressed the Forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads

me to doubt that they were creating their new Executive in his image."

The War Powers Resolution, therefore, placed certain Presidential use of armed force in this third category of Justice Jackson's analysis, where his power is at its lowest ebb. Under this analytical approach, the time limits of the War Powers Resolution, as well as the "prior restraints" set forth in the earlier Senate version, seem clearly constitutional. The scope of the President's concurrent power is a function of the concurrence or nonconcurrence of the Congress; once Congress acts, its negative provides "the rule for the

case.

Mr. Sofaer ignores the learning of the Steel Seizure case, however, and can barely list the parade of horribles set to march by the time limits: They interfere with the "successful completion" of the President's initiative; they "may signal a divided nation, giving adversaries a basis for hoping that the President may be forced to desist"; they provide "an undesirable occasion for interbranch or partisan rivalry."

The curious thing about these arguments, Mr. Chairman, is that every one of them is an argument not against the War Powers Resolution but against constitutional limitations on Presidential warmaking power. Every one of these arguments is an argument for untrammeled Presidential discretion to use the Armed Forces whenever, wherever, and for whatever purposes the President may choose.

Indeed, on close analysis, it becomes clear that this is precisely Mr. Sofaer's view: "Explicit legislative approval for particular uses of force has never been necessary," he candidly said.

The President thus could have used armed force in World War I, World War II, or Vietnam without any declaration of war or any other legislative approval.

This view of warmaking power is, of course, not new. But it should suffice to say at this point in our history that the divine right of kings approach was ventilated and rejected in 1789, and I see no point in reopening that debate today.

The constitutional theory underpinning the War Powers Resolution is different from that underpinning the Use of Force Act. The War Powers Resolution confers no authority upon the President; as section 8 makes clear, it merely places limits upon the use of authority that otherwise might lay unregulated.

The Use of Force Act, on the other hand, affirmatively delegates power to the President to use armed force in certain specified instances. That distinction is critical. As early cases demonstrate, where Congress delegates authority, limits imposed incident to that delegation are constitutionally valid.

This important premise undergirds the approach of the Use of Force Act.

Mr. Chairman, a number of proposed modifications of the War Powers Resolution are before the subcommittee, ranging from the Byrd-Nunn proposals and Committee Print No. 1, to the De Fazio approach to simple repeal.

I would simply say, in concluding, that none of these modifications of the Resolution will, in themselves, to quote the War Powers Resolution, "ensure that the collective judgment of both

the Congress and the President will apply to the introduction of U.S. Armed Forces into hostilities."

Fifteen years after the War Powers Resolution's enactment, it has become clear that the Resolution's sponsors were naive to believe that any law could achieve that objective. The most that a statute can do, however artfully drawn, is to facilitate the efforts of individual Members of Congress to carry out their responsibilities under the Constitution.

To do that requires understanding and it also requires courage. It demands a insight into the delicacy with which our separated powers are balanced and the fortitude to stand up to those who would equate criticism with lack of patriotism.

For a Congress comprised of such Members, no War Powers Resolution would be necessary. For a Congress without them, no War Powers Resolution will be sufficient.

Thank you.

[The prepared statement of Mr. Glennon appears in the appendix.]

Senator BIDEN. Thank you.

Professor Turner.

STATEMENT OF ROBERT F. TURNER, ASSOCIATE DIRECTOR, CENTER FOR LAW AND NATIONAL SECURITY, UNIVERSITY OF VIRGINIA LAW SCHOOL, CHARLOTTESVILLE, VA

Mr. TURNER. Thank you, Mr. Chairman.

It is a great pleasure to be back here. I spent 5 years sitting on the other side of your bench, in the back row, when I was working for a member of the committee. It is good to see the committee is still as active and as effective as it was in the old days.

Senator BIDEN. Which is easier?

Mr. TURNER. Ask me that in 10 minutes.

Senator BIDEN. All right.

[General laughter.]

Mr. TURNER. I have a rather lengthy statement that-

Senator BIDEN. Excuse me. Would you start the clock for this witness again.

Professor Glennon has been here so often and back here, too, that he didn't even use his 10 minutes, which means he didn't learn any of the lessons Senators taught him.

Mr. TURNER. How long a warning is there?

Senator BIDEN. We always go over 10 minutes.

Mr. TURNER. How long a warning do we have on the yellow light?

ed.

Senator BIDEN. I think it is 1 minute and then your seat is eject

[General laughter.]

Mr. TURNER. I was wondering. I thought the device beneath the lights might be some sort of laser weapon.

I have a rather lengthy statement, Mr. Chairman, which I would like to submit for the record.

Senator BIDEN. The entire statement will be placed in the record. Also, I ask unanimous consent that Professor Glennon's statement be placed in the record.