with circumstances, change with generations, and I think the War Powers Act is right in being silent in any specific definitions.

But, whether you are saying the President is acting out of any inherent constitutional right of his own, or whether you are saying that the Congress has the power and the duty to define the policies by which we address limited warfare or terrorism or other circumstances, by providing this initial period, you simply finesse that question. And I think that is one of the desirable features of the War Powers Act.

Senator SARBANES. Well, of course, once the President makes the commitment, the question of compelling a withdrawal is extraordinarily difficult. The decision has been pretty well made.

The real question is, might it not be a more fruitful approach to say, if effect, that there are certain instances, narrowly defined, under which it is clearly necessary for the President to respond. Obviously there would be some difficulty in defining that area.

But beyond that, the President would have to obtain a prior authorization before he could make the commitment.

What I am trying to find out is whether the members of the panel think the President ought to be able to make a commitment in any circumstance, and then put Congress in the position of trying to compel a withdrawal, either by triggering the War Powers Act of by cuting off appropriations, after the fact.

Or whether perhaps beyond this narrow range of events that we talked about, the President should have to obtain a prior authorization from the Congress in order to commit forces.

Senator EAGLETON. Senator Sarbanes, you are posing the issue that the Congress faced 15 years ago. You are espousing the Senate version of the bill and you are absolutely correct, whether it is 30 or 15 days. Once the troops are out there, being shot at, the decision is made. Congress is supposed to be in on the takeoff, before they go to the gulf or before they go to Lebanon.

You are posing the Senate bill. Congressman Fascell is still, quite obviously, supporting the House bill. That is the difference of opinion on the subject matter.

Mr. FASCELL. Mr. Chairman, may I address myself to that for a moment? I think that is an important question. Senator, obviously we are dealing with things as far as what is in the list and what is off the list. You want to draw some scenarios. Do you leave something out or do you include it?

Who makes that decision? Is that a political decision? Libya— was that war or not war? What exception does that fit under? Salami technique; we are in the Persian Gulf, we have been in the Persian Gulf, militarily. We expand our interests in the Persian Gulf by adding more military might.

Is that an act of war? I do not know who made the decision that this was an undeclared war. Well, whoever made it might be, in a practical sense; correct.

Senator SARBANES. The question is whether and what kind of a commitment you are going to allow without congressional involvement in the decision.

Congressional involvement does not mean-and I think this ought to be understood, because people do not always understand it-that there will not be a commitment of forces, because the con

gressional decision in conjunction with the Executive may, in fact, be to make the commitment. It may be, not to make the commitment.

All it would ensure is that making the commitment would be joint decision representing the common judgment of the Executive and the legislative branch, before the commitment takes place. Once the commitment takes place, to try to undo it is very difficult, because the decision has been loaded, so to speak.

Mr. FASCELL. Mr. Chairman, for clarity of the record, I have to add a comment on that one. I do not know that the Constitution says, explicitly, but I think it is clear enough, that the Founding Fathers expected, and I think that it flows from the language, that prior approval of the Congress was required to go to war.

But it does not say anywhere in the Constitution that the Congress cannot ratify after the fact.

The CHAIRMAN. Thank you very much.

Senator SARBANES. Can we hear from Senator Mathias?

Senator MATHIAS. Obviously, it is better to have prior authorization. Nobody would disagree with that. The reason I would suggest reducing the time to 30 days is because that prevents the President from digging in. If the President knows that his day of reckoning is within 30 days, he is not going to dig in as deeply and make a commitment as deep as he would otherwise.

The CHAIRMAN. Thank

Senator KASSEBAUM. Thank you Mr. Chairman. Let me just say, I think it is a very interesting discussion, and I suppose I am struck with Chairman Fascell's comments on how you define "war." We certainly declared war after the fact at Pearl Harbor. And there was not doubt in anyone's mind that hostilities had taken place.

And I would like to go back and, Senator Eagleton, you said be in on the takeoff. And this is really, I suppose, one of our frustrations, and it evolved from Vietnam. It stemmed from the frustration of not being consulted.

But that Vietnam, and it goes way back actually to President Eisenhower in the early inception of decisions made that involved a step by step in what took place.

I have always felt that we overlooked the great power that Congress has in the power of the purse. And at some point if we did not agree with what was taking place, we just do not vote to spend the money to carry out the action. Is that not something that keeps us engaged? And we can, through that power, demand the consultation that is necessary.

Now, some of you were here as we moved into Vietnam, and raised questions. But would anybody have, and how many, questioned at that point whether hostilities-whether we were engaged in hostilities.

Certainly it seemed to me that would have been very clear. But, would we have invoked the War Powers Resolution at that point? And at what point?

Mr. FASCELL. The questions you have raised are all practical and valid questions. I do not know what we would have done if the War Powers Act had been in place at that point, but I know what we

did. That is by a salami technique of necessity, let us put it necessity-I am not being derogatory here at all-we got into a war.

Now, did Congress ever declare war? No. Well, how did we do all of this? Through the power of the purse. I can remember when President Johnson first came on the scene with regard to this problem. One of the first things he did was to drag all of the Congress down to the White House and say, "I need $700 million supplemental. And the reason I need that is because we have got to put more men and more equipment in the field."

And we were all there, Appropriations, Armed Services, Foreign Affairs, and leadership and the whole world was there. And we got the full dog and pony show. And when we came back, we voted to approve the $700 million supplemental. But with all the other Presidents, we had given them what they wanted.

Congress had acted. No question about that. So that is ratification of the fact, and as an act of the Congress, we shared the responsibility.

Now, in the legal sense, when did we get around to declaring war? With the Gulf of Tonkin resolution. Absolutely. And we had the full authority of the Congress of the United States, carrying out a responsibility.

And, as I said earlier, we gave the President all the power he needed. The only thing we left out of there was, we do hereby declare war. So, it was a step-by-step process of getting into war that we were struggling with, and then along came Cambodia, which is an entirely new country, and bingo.

And the answer there was hot pursuit or something. But here we were, at war with another country. And we still have a tough problem with that, and we still have a tough problem with Libya.

But Libya was totally supported. Nobody cut off any money. The Congress did not pass any resolutions. The Congress acted, and we did not declare war. And I do not know that it fits any of the exceptions, either, that have been enumerated.

So, this is the problem we are struggling with. It still goes back to shared responsibility. Commonsense involvement, broad base of support and knowledge in the Congress. And the President has to take the lead on that.

Senator KASSEBAUM. Or, and may I just add, if, as has been presented I think, and Senator Adams has brought this up on the Persian Gulf situation, as long as it is the law of the land, however, we should abide by it.

Now, there are some of us who would question whether, indeed, it should be the law of the land, but maybe this is, of course, what we are struggling with at this point. Can it be improved or, should as Senator Eagleton said, perhaps facetiously but I think a good question. Either we abide by it or we recognize that it is somewhat a legalistic web that serves no useful function, and we should make that decision.

Senator EAGLETON. May I make this comment? Had there been a War Powers Act, let us say that it had been passed in the forties. Most certainly President Kennedy would have had to trigger it if he were going to honorably enforce it, and more than likely, President Eisenhower. But most certainly President Kennedy.

The Congress became partners in Johnson's war. The Gulf of Tonkin Resolution was everything that Chairman Fascell said it was. It was a declaration of war, it just did not use those nasty words. It was a blank check to engage in military operations wherever he sought in Southeast Asia.

Chairman Fascell has a problem understanding what Libya is, under Senator Sarbanes' question. Very clearly, Libya should have invoked the War Powers Act. When you send those planes off to bomb, and you know they are going to shoot and be shot at, they are going to be engaged, then there is the imminent likelihood of hostilities.

There also was time on Libya to talk with key people in Congress. My God, it was on the front page of newspapers. I think it was the Wall Street Journal, "Reagan About To Bomb Libya." People said, "When is he going to do it?" And the word around here was, as soon as he can find which tent Mu'ammar is in. That is the only thing that made it in any way problematical.

Everybody in town knew we were going to bomb Libya. Yet there was no consultation, no nothing; just go off and do it.

Mr. BROOMFIELD. I disagree with that completely. A number of us here were included at the White House when the decision was being made as far as the bombing.

And I think there was adequate consultation, and I certainly disagree that it was known in advance that we were going to do this for some time. The senior Members of the Congress, the leadership, were down there, Fascell and I were both there, and I think it was a proper way.

I would like to get back-I think this idea of trying to put more restrictions on how the President operates-

Senator KERRY. Were you not down there on Friday or Saturday? Mr. BROOMFIELD. We were down there about 2 or 3 hours before. I thought it was Friday.

Senator KERRY. Right before the bombing.

Mr. BROOMFIELD. Yes.

Senator KERRY. Three hours.

Mr. BROOMFIELD. Yes, that is right.

Mr. FASCELL. Senator, I was there, too, and the answer was, the planes were more than halfway there. Now, if anybody wants to change your mind or you have some objection, please tell us. Mr. BROOMFIELD. But there was not any.

Mr. FASCELL. I am sorry, there was an objection. I said, I can understand why we have to do this, but what about the War Powers Act? What about the Congress? And that was the end of that discussion. It stopped right there. I did raise the question at that meeting about the War Powers Act or the Constitution or what

ever.

The CHAIRMAN. That is correct. I was there, too.

Senator KASSEBAUM. Before my time runs out, I want to ask one question. I assume that everybody testifying at this point has spoken, somewhat obliquely and somewhat directly, not in support of the Byrd-Nunn-Warner bill.

Senator MATHIAS. I would directly oppose the repeal features of the Byrd amendment. I think it repeals very crucial language that presently is in the Act, and I think that would be mistake.

Senator EAGLETON. I spoke in opposition to Byrd-Nunn-Warner. Mr. FASCELL. I like the point about the consultative thing, but I do not think that we ought to legislate that. I think it ought to be an understanding and an arrangement between the Chief Executive and the leadership of the Congress.

Mr. BROOMFIELD. I certainly agree. It should not be put in concrete. It should be flexible and give the President an opportunity to discuss it.

The CHAIRMAN. Thank you very much, indeed. Senator Kerry. Senator KERRY. Thank you very much. I have just been called to go to the floor. I do have some questions, but I will pursue them privately. I just want to thank the members of this panel and particularly our good friends Senator Mathias and Senator Eagleton. It has been not only one of the more interesting ones, but one of the more entertaining ones. Mr. Chairman, with unanimous consent, I would like my time to be used by Senator Adams.

The CHAIRMAN. Senator Adams being one of the leading advocates on the Senate floor of the exercise of the war powers amendment.

Senator ADAMS. Senator Kerry, I want to thank you for your courtesy. Thank you Mr. Chairman.

I think the War Powers Act is constitutional. I think the concurrent resolution and joint resolution, are both constitutional.

I would like to make four or five points from a practical and a theoretical point. If the Congress of the United States passed a resolution under article 1, section 8, and I quote, "to declare war," I do not think the President could veto it.

And I will go right back to the constitutional convention. Congress was given the power because they did not want to have a king. Kings make war, and making war is both declaring it and carrying it out. And it was amply clear by everybody at the constitutional convention that they wanted to have the Congress and not the President to put the Treasury and the lives of the American people on the line.

And I will just quote, for example, Eldridge Geery who was not a Liberal: "He never expected to hear in a Republic a motion to empower the Executive talons to declare war."

And George Mason said, with regard to the war powers of the Executive, "not to be trusted with it." You never want to give the power to begin a war to those who are to conduct the war. And I feel this very strongly.

Second point, and I appreciate it very much, Senator Kassebaum, this is the law of the land, and the law of the land should be carried out. And we all know, because we were there and we voted for it. It was to prevent not just a quick action but a sustained war. We are going to be in the Persian Gulf a long, long time. We have been there a long time, and we will be there a longer time. And what we do there, if it is war, declared or undeclared, the Treasury of the United States pours into it, lives pour into it, incidents pour into it.

Therefore the Congress should either vote for it, or vote against it. Now I want to be practical with you, Tom, because I was trying to get a vote, and in the Senate there is ability to frustrate votes, as we well know. On December 4, we entered into a unanimous re