Now, I would like for you to elaborate for just a minute or two on your view that such formal requirements would be an unconstitutional infringement on the Executive's prerogatives.

Mr. TURNER. Senator, I would be quite pleased to do that.

Essentially, what I am arguing is that the Founding Fathers created the two political branches as coequal representatives of the people.

Senator HELMS. Absolutely.

Mr. TURNER. As coequal representatives, they each have a great deal of autonomy.

I have argued that in all of these areas, it is very important that there be genuine consultation. During my service in the State Department, when people came to me and said to consult with Congress about a decision made a day earlier, I would say to them "Look, if you'd come to me 2 weeks ago, I could have consulted; now you are telling me simply to 'inform' Congress of a decision already made"-and that's not the way the system ought to work. I am a big believer in genuine consultation and not just notification. But what I'm saying is that when you put it into law and insist, by law, that the President must consult when you tell him and where, that is comparable to the President, as Commander in Chief, calling up General Gray and saying "Send a battalion of Marines over and bring the Speaker of the House to the White House, because I want to consult with him."

It is unseemly, it is improper, it is not the way that coequal branches of a sovereign government ought to deal with each other. The principle behind setting up what I used to call a joint committee on national security-and the concept predates my entry into this field by many years-to engage in consultation, is a wonderful idea. But you don't put it in a law saying that whenever these key congressional leaders blow a whistle, the President must run over and salute, or sit down and consult. That is not the proper way for the two branches to deal with each other.

If I were the President's counsel and you tried it, I would advise him not to go lest it be understood from this that he was now the minion of the Congress and not the great coequal representative of the American people.

Senator HELMS. I thank you.

Mr. Chairman, I have some questions that I wish to submit to each of these gentlemen in writing, so that they can respond in writing, and particularly to Professor Glennon.

I don't want to develop a subject in public that I want to be made a part of the record. So, I am going to provide you, sir, with some questions, which I would appreciate your answering.

With that, I think we ought to move to the second panel. But before you do that, Mr. Chairman, I don't know any of the second panel personally except Charlie Rice. I have known Charlie Rice for a long time, and his advice and counsel have meant a very great deal to me. He is a professor of law at Notre Dame.

I might ask Charlie if he likes Lou Holtz as the football coach

now.

Mr. RICE. Very much.

Senator HELMS. Very much. Well, Lou is also a good friend of

I welcome Charlie.

I'm going to have to leave, but I think it would perhaps be good to move on to the second panel. Thank you, gentlemen.

Senator BIDEN. Gentlemen, before you get up, I would like to note for my colleague from North Carolina that I really think it has been more two and one-half to one and one-half.

Mr. Reveley was, I think, somewhere between Glennon and Turner, leaning to Turner on two points, and somewhere between Firmage and Turner, leaning to Firmage on one point.

Gentlemen, all of your testimony was extremely helpful. You all made very concise, straightforward statements, and the disagreement is helpful to this committee, not harmful.

I sincerely appreciate your time and your efforts in being here. Senator HELMS. Mr. Chairman, I did not imply any derogation of anybody.

Senator BIDEN. Oh, not at all.

Senator HELMS. Everybody has to be somewhere on every issue. Senator BIDEN. I realize that, and I think Mr. Reveley is a little more conservative than you gave him credit for. I don't know. Mr. REVELEY. It varies with the time and the moment.

Senator BIDEN. I want to thank you all again. Seriously, thank you all very much.

I will now call our next panel, and I understand that some of my colleagues will have to leave. I apologize that we have kept you all for so long. But, as you can see, this is an area of great interest to many of us.

We truly appreciate your testimony.

Our next panel is equally distinguished. It consists of Mr. David Friedman, Esquire, who is a practicing attorney and author from New York City; Prof. James Nathan, Professor of International Relations, the University of Delaware, my alma mater, of Newark, DE, and a man who writes not only on this issue, but the Armed Services Committee should invite him to hear his views on the deployment of naval forces, which is another question. I have now sufficiently embarrassed him.

We also have Prof. Charles E. Rice, Professor of Law, University of Notre Dame, who has already been mentioned and who has been before this committee on other matters. It is good to have you back, Professor.

Last, we will have Mr. Peter Weiss, Vice President of the Center for Constitutional Rights, also from New York City.

If we could proceed in this order: Friedman, Nathan, Rice, and Weiss, as we have you listed here, it would be the best way to go. I ask you, if you would, to try to keep your statements within 10 minutes. Again, your entire statements will be entered into the record.

Mr. Friedman, please.

STATEMENT OF DAVID S. FRIEDMAN, ESQUIRE, PRACTICING ATTORNEY AND AUTHOR, NEW YORK, NEW YORK

Mr. FRIEDMAN. Good morning, Chairman Biden. I would like to thank the committee for the opportunity to testify about the proper scope of the President's war power. Due to the time limita

tions, I will summarize my views briefly and present the committee with the more detailed analysis contained in my article.

The Framers of the Constitution considered the power to initiate war far too important to entrust to the President alone, and, therefore, the Framers intended that the United States remain at peace until the Congress, as well as the President, agree that war should be initiated.

From 1789 through June 25, 1950, when without any congressional authorization, President Truman committed American forces into combat in the Korean war, the 32 Presidents and 80 Congresses adhered to the Framers' intent. During this 161-year period, every President sought and received congressional authorization before he subjected the Nation to the death and destruction of war. President Truman's decision to fight a major war in Korea and his concomitant claim of an unlimited power to make war on his own initiative constituted a coup d'etat against the Constitution. Truman's usurpation of power has been followed by his successors, so that today the American President possesses substantially more power to decide the fate of the Nation and the world than any Roman emperor or absolute monarch ever exercised.

* *

The Framers of the Constitution granted a war power to the Congress that was explicit and broad. Article 1 of the Constitution states that "The Congress shall have power * to declare war.' Modern advocates of broad Presidential warmaking power claim that the congressional power "to declare war" consists merely of the authority to issue a formal "declaration of war." However, the records of the Constitutional Convention show that the Framers intended that the "to declare war" clause was a grant to Congress of the authority to initiate war and all other military actions.

Although article 2 of the Constitution says that "The President shall be the Commander in Chief of the Army and Navy of the United States *" this clause was not intended by the Framers to confer upon the President the power to make war on his own initiative. In the "Federalist Papers," Alexander Hamilton wrote that "Commander in Chief" was nothing more than a designation of military rank.

From 1789 until the Korean war-a 161-year period, which was frequently marked by significant threats to the national securityPresidents claimed only the most narrow power to unilaterally initiate war: The authority to protect American territory and citizens from attack. The pre-Korean war Presidents lacked the authority to protect any other national interest.

For example, after defense of its own territory, maintaining_the balance of power is the most significant interest of any nation. Yet, prior to the Korean war, despite repeated and substantial threats to the balance of power, no President ever claimed he had any authority to use the Armed Forces to protect the balance of power without first obtaining congressional authorization. In fact, in May 1940, when the Nazis were on the verge of conquering all of Europe, Franklin Roosevelt, citing constitutional constraints, remained neutral in the most momentous battle the world had ever known. Roosevelt understood that only the commitment of American military power could save France from an imminent Nazi conquest. However, he also recognized that, under the Constitution, he

was powerless to commit American forces. He specifically acknowledged his loyalty to "constitutional government" when he solemnly and sorrowfully declared: "Only the Congress can make a military commitment." Since Congress was unwilling to authorize American intervention to preserve the balance of power, the United States remained neutral as France fell.

Thus, Roosevelt was obedient to constitutional principle during the Battle of France, even at the price of losing a vitally important nation to the most aggressive, totalitarian, and genocidal nation in history. In contrast, a mere 10 years later, in the Korean peninsula-an area that the United States Government had never before considered vital or even relevant-President Truman acted without any legislative authorization and committed American forces to a massive, conventional war, which could have easily escalated into a nuclear conflict. Even though the Truman administration acknowledged that South Korea was completely irrelevant to the defense of American territory or the maintenance of the balance of power, Truman impetuously decided to commit American forces to support South Korea in its war with North Korea. Thus, for the first time in its history, the United States began fighting a major war without any congressional authorization.

Moreover, in an attempt to justify his action, Truman falsely claimed that the Commander in Chief clause granted the President the power to use force to protect any "interest of American foreign policy." The alleged power to employ force to protect any "foreign policy interest" is so broad that it is virtually limitless, because even the most unimaginative President can always find a "foreign policy interest" which needs protection.

Truman's successors in the Oval Office have continued his usurpation, and have behaved as though the Army and Navy were their own personal property. Post-Korean war Presidents have arrogated unto themselves a power to use force to advance such marginal interests as protecting democracy in undemocratic lands, aiding the anti-Communist faction in any petty Third World dispute, and protecting the oil exports of Kuwait.

Unfortunately, Congress acquiesced in this Presidential practice during the 1950's and 1960's. However, in the 1970's, Congress attempted-attempted-to regain its power.

In 1973, Congress passed the War Powers Resolution. Congress had considered, but then rejected, an alternative war powers proposal, the Javits bill. The Javits bill would have repudiated Truman's sweeping claim of war power by restoring the pre-Korean war procedure. More specifically, the Javits bill restricted the President's authority to commence war to the constitutionally permissible categories of protecting American territory and American citizens. Unfortunately, the Javits bill was defeated in conference committee. The House bill, which permitted the President to exercise unlimited war powers for a 60-day period was enacted into law. Not only does the War Powers Resolution fail to reverse Truman's usurpation, it also confers legitimacy upon this unconstitutional practice by codifying it into the statute books. This irresponsible surrender by the Congress of its constitutional rights and constitutional duties is the greatest defect of the War Powers Resolu

The second great defect of the War Powers Resolution is that it permits a President to radically alter the international situation before Congress even has the opportunity to exercise its power to decide upon war. The President's commitment of American forces puts overwhelming pressure on Congress to continue the commitment, even if Congress were to decide that the President's action was unwise and dangerous. This is because if Congress were to repudiate the Presidential commitment, then all other commitments will be doubted by anxious allies and challenged by aggressive enemies.

The War Powers Resolution is flawed for still a third reason. In modern warfare, 60 days is far too long to give the President an unrestrained license to make war against any nation with any weapons. Russian missiles can destroy American cities in just 30 minutes. Nuclear war can occur not only as a result of a deliberate Russian attack, but also, and more probably, as a result of unintentional escalation from a conventional war or superpower crisis. Even if nuclear weapons were not employed during the first 60 days of the war, conventional weapons can inflict millions of casualties within weeks, if not days. Thus, Congress abdicated its responsibility to protect the millions of American soldiers and civilians who could be killed during the first 60 days of a Presidentially initiated war.

In conclusion, the War Powers Resolution "legalizes" Truman's usurpation and fails to provide any effective restraint on Presidential war power in an age of weapons of mass destruction. Accordingly, the War Powers Resolution should be repealed. In its place, the Javits bill or some other legislation, which restricts Presidential war power to the constitutionally permissible categories of protecting American territory and lives, should be enacted into law. Thank you for giving me the opportunity to present my views on this important topic. I would be happy to answer any questions. [The prepared statements of Mr. Friedman appear in the appendix.]

Senator BIDEN. It has been a pleasure to have you here. I will have questions for you when the entire panel finished.

I would like to tell you in advance that I would like very much for you to look over what we are referring to as Committee Print No. 1, to comment on it at a later time, maybe in writing. We attempt there to do some of the things you suggest.

Professor Nathan, Jim, before you begin, since we are very colloquial up here when it comes to our home State universities, in particular our alma maters—although half the guys I went to school with, Professor Rice, went to Notre Dame-we, in Delaware, still refer to Notre Dame as a great place to be from, but a hell of a place to be.

[General laughter.]

Senator BIDEN. Then, again, I went to a Catholic, non-Jesuit high school. That explains a large part of it.

Jim, would you please proceed.

It is good to have you here.