STATEMENT OF JAMES NATHAN, PROFESSOR OF INTERNATIONAL RELATIONS, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF DELAWARE, NEWARK, DE

Mr. NATHAN. Thank you.

Mr. Chairman, I am honored by your invitation.

I would like permission to have my extended remarks placed in the record.

Senator BIDEN. They will be placed in the record.

Mr. NATHAN. I think we ought to remember why we had a war powers act in the first place.

We now have the testimony of former Secretary McNamara that in the fall of 1965, he thought the war in Vietnam was not winnable militarily. That was his private belief. Nobody who knew anything about that war, with any sophistication, believed it could be

won.

Yet the war went on. And it went on; while the mandate for the war was extracted from the Congress really under false pretenses, and I believe the historical record well reads. I write books on history and I think it is indisputable that the circumstances of the Gulf of Tonkin were falsely stated to the Congress.

So, I don't see how anybody can claim that the mandate for the war was a serious congressional mandate.

The war went on. Congress tried to repeal with legislation, a barrage of legislation, succeeded by barrage of legislation; and yet, the war went on. And it went on and it went on. Congress tried to pass cutoffs; and the war expanded.

At long last, over a Presidential veto, as you know, Congress finally brought the war to an end.

I understand that times are different. I understand that things are different. But a consensus came out of that period that I believe is still valid today, and the consensus, I think, has three elements. It was assumed that armed forces should not enter into hostilities without adequate domestic support. It was assumed that interests should dictate any future commitments. And it was assumed that Congress was capable of offering a kind of reality test to the Executive.

Now, this latter element of the consensus derived from our experience in Southeast Asia is no trivial matter. The 25th amendment recognizes that Presidents can have crippled judgment, for all kinds of reasons. We have journalistic reports of Mr. Nixon's decision style, even before the "final days." We now have reports of Mr. Johnson's state of mind that are extremely disturbing, when Vietnam weighed heavily on him.

It is, therefore, important for Congress to have a role in these matters.

In the 1970's, we squeaked by with haphazard attendance to the War Powers Act. But in the 1980's, under two Presidents, we have instances of Congress being ignored and exercises undertaken which could have had extraordinarily worrisome consequences. We lucked out. There is no doubt about it.

But disaster loomed at every corner. It could have been worse. It was bad, but it could have been extremely worse.

Well, we have to have, it seems to me, a better methodology for dealing with the external world.

Luck will not always grace us. We need procedures. Indeed, I would argue that procedures become the precondition of sound policies.

I think that most serving military officers now share the sentiments of John Stennis when he said, 15 years ago, "The last decade has taught us that this country must never again go to war without the full moral sanction of the American people.'

But no full moral sanction can be said to derive from extreme representations if the circumstances and purposes of U.S. policy are not carefully explicated. And no meaningful consensus can be said to have been forged between those who command and those who serve, if the circumstances are falsely stated. No full moral sanction can logically emanate from anything but a complete articulation of what is to be achieved by any armed action. How the goal is to be achieved, and within what timeframe the goal is to be achieved ought to be specified.

Officers of the Executive argue now that the military is demanding, as a result of Vietnam, a prepackaged, full-fledged, before the fact warranty of public support. But Congress is hardly likely to be blindly obstructionist. Congress has supported most Executive initiatives at arms. It is not excessive for Congress to request an explanation of the evidence that motivates the use of force in advance, or, if necessary, as force is being deployed.

A strengthened War Powers Act, therefore, it seems to me, would try to extract a checklist of explanations as to why an action is necessary, why and how it is likely to be successful, and how it might be proportionate as to ends and means.

The reporting document, it seems to me, should anticipate the length of the engagement with specificity and define the mission and mission objectives with precision.

Last, the document should provide the Congress with the criteria by which it can judge that the mission has been completed.

A more rigorous reporting requirement would be an asset in reaching the consensus our troops deserve. An exacting reporting requirement would probably give the exertion, if well conceived, the requisite domestic boost it would need for success.

Some of the details might have to be classified. The length of stay, for instance, and the rules of engagement do not have to be spelled out in more than generalities. But Congress at large and the American people should have some idea if an effort is openended or finite. Such information is vital to our collective destiny.

It should not be withheld or distorted or wrapped in bloody shirts just because "it works."

The approval mechanism should take the form of a one- or twoHouse veto, as it is, in a de facto way, with the Intelligence Committees now. There should be a vote up or down approving or disapproving an armed action. A joint resolution would just make matters worse.

We would do well to recall in 1973 how it was, when funding cutoffs were passed in both Houses, but the cuts and cutoffs were overridden. When Mr. Nixon said he had the authority to continue the war, in any case, in defiance of Congress, the U.S. District Judge

Judd, presented us with this argument: "It cannot be," he said, that there is a rule "that the President needs a vote of only onethird plus 1 of either House to conduct war. [T]his would be the consequence of holding that Congress must override a Presidential veto in order to terminate hostilities which it has not authorized” itself.

I think, further, that the financing of wars ought to be faceted into new legislation. Funds should be appropriated separately for each armed action. There has to be a way to stop wars in a less strange and ungainly fashion than we saw with the dreary spectacle of the steady drizzle of legislation that characterized our time of trial in the late 1960's and the early 1970's.

It follows, therefore, that backdoor financings of war has to be explicitly prohibited. I don't think we can afford the peculiarities associated with the Iran-Contra scandal any longer. I think that is undeniable.

The Framers, it seems to me, were men of a peculiarly practical bent. They knew that war was too often in the nature of things in the world. But the Founders knew that their solutions might be both messy and unique to their time. They were not about to prescribe solutions to indeterminate problems in unknowable circumstances in the indefinite future.

We have to come to grips with the permanent American exposure to great power politics. This is something which would flabbergast the Founders. But the world of the early days of the Cold War, the 1940's, is past. The policy routines which accompanied that world are of decreasing utility.

Old habits die hard. The custom of soliciting congressional consent with scary congeries drawn from distant circumstances does not serve us well.

There is peril enough in the world. Depicting dangers larger than life makes it more likely that one day, either Congress will divine an incident to be like the Gulf of Tonkin-simple hyperbole-and then Congress will refuse the requisite support when it is most needed. Or, more likely, Congress will continue to neurologically respond to overstatement, no matter what the facts might be. It is at this point that we will need some kind of meaningful War Powers Act. Then a war powers act will be most needed. Perhaps we will be lucky. Perhaps both truth and the wisdom to deal with it will bubble forth more quickly than was the case in our time of trial in Asia. But it would be far better to have meaningful legislation at the ready, to restrain an ongoing but ill-conceived enterprise, than to try to beat out a new law when there is the accompanying din of battle.

Thank you, Mr. Chairman.

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

Senator BIDEN. That's what I call pretty good timing. Maybe if we had gotten the timing down like that in the debate, I would not have gotten into trouble.

Professor Rice.

STATEMENT OF CHARLES E. RICE, PROFESSOR OF LAW, UNIVERSITY OF NOTRE DAME LAW SCHOOL, NOTRE DAME, IN

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

My full statement I would ask to go into the record.

Senator BIDEN. Yes, it will.

Mr. RICE. I would just like to put some additional points into my oral statement.

We have the division of powers in terms of the war powers. Congress has the power to declare war, declare letters of marque and reprisal. The President has his powers. But we are dealing here with what Justice Jackson called, I think properly, the twilight zone, where there are concurrent powers of uncertain distribution. If you recall, President Nixon's veto message, he noted the wisdom of the Founding Fathers, who were convinced that you could not foresee every contingency and that these matters should be handled by close cooperation between the branches, rather than by what President Nixon called rigidly codified procedures.

Basically, I believe the War Powers Resolution is imprudent and probably unconstitutional on two grounds. One is its interference with the Presidential decisionmaking power. Second is because of its violation of the presentment and bicameralism principles of the Chadha case.

I won't discuss the Chadha case in these remarks. I have some comments on it in my testimony.

But on the first point, it interferes with the flexibility that is inherent, I think, in the President's power to repel attacks, which has to include a power to forestall attacks. The Resolution is, in a sense, micromanagement.

I think it is worth recalling the statement by Senator John Sherman Cooper in the 1972 report of this committee, where he relied on Justice Jackson's "zone of twilight" comment to say this: "I doubt that the Congress has the authority to limit the exercise of Presidential authority to an exact term," such as 30 days. "If the President's exercise of authority is constitutional, I do not believe that a statute"-he's talking about what ended up as the War Powers Resolution-"I do not believe a statute could prevail over his constitutional authority if he should determine that a period of time longer than 30 days would be necessary." And so on.

We're dealing with a blunt instrument, which makes no effort to distinguish between the magnitude of the involvement in different kinds of hostilities or imminent hostilities, and you are dealing, of course, with a problem of definition, without getting into the details of it extensively.

The Resolution does not define its terms. But you note in the report of the House Foreign Affairs Committee, which accompanied the Resolution, that they did attempt to define the terms. You can see what the problems are.

For example, hostilities were defined in that report: "Hostilities encompass a state of confrontation in which no shots have been fired, but where there is a clear and present danger of armed conflict."

All right. Then what are "imminent hostilities"? They continue: "Imminent hostilities denotes a situation in which there is a clear

potential, either for such a state of confrontation or for actual armed conflict."

So, we are dealing here with hostilities, where there is a clear and present danger, and imminent hostilities, where there is a potential for a clear and present danger.

I think you are illustrating in this process not that that committee ought to be criticized for its efforts but, rather, that there are some terms so incapable of satisfactory definition that they and the controversies in which their meaning would arise would be better left to political, rather than to specified, statutory resolution.

In my comments, in my written statement, I set forth a couple of paragraphs from President Nixon's veto message, which I think is worth reading, and which I think looks pretty good in retrospect, in terms of what this thing is about.

He said that the Resolution would undercut the ability of the United States to act as an effective influence for peace. The cutoff, the 60-day cutoff, he said could work to prolong or intensify a crisis. Until the Congress suspended the deadline, there would be at least a chance of U.S. withdrawal and an adversary would be tempted to postpone serious negotiations until the 60 days were up. Only after the Congress acted would there be a strong incentive for an adversary to negotiate.

In addition, he said, "The very existence of a deadline could lead to an escalation of hostilities in order to achieve certain objectives before the 60 days expired."

He is talking there about an escalation by our side.

The difficulty is this micromangement technique of specifying in advance time limits. I think one of the problems is that the War Powers Resolution has focused attention on sterile questions of procedure and unresolvable questions of constitutionality. It accomplishes no purpose that would not be accomplished without it because the ultimate remedy under the War Powers Resolution is still, if you are dealing with an intractable, defiant President, the cutoff of appropriations, the override of a veto, or, ultimately, impeachment.

In either one of those situations, you need to have supermajorities in the Congress. And I suggest that that is the way it ought to

be.

We are wondering here what is the structure, what is the process. Well, the process is in the Constitution. It is that the President has an emergency power. And yet, the Congress prevails.

I am taking a position against the War Powers Resolution. But I believe Senator Taft, Senator Robert Taft, was right in the positions that he took in 1940, for example, when he criticized President Roosevelt for sending troops to Iceland-80,000 American troops. Taft said that he should have asked for Congress' permission beforehand, because there was no emergency and they were going right into a war zone.

He criticized President Truman for sending troops into Korea and not asking Congress afterward. Now, Senator Taft did not demand that the President had to go to Congress before authorizing the troops because it was a very fast-moving situation. But I believe he was correct in his position that President Truman very quickly should have gone to Congress and said "OK, fish or cut