siter lamented: "Congressmen are more likely to needle the President for inactivity and timidity than to accuse him of acting too swiftly and arbitrarily." How things have changed. If I remember correctly, Professor Schlesinger was one of the sharpest academic critics of President Eisenhower as a "do-nothing" President in foreign policy. We still are stirred by the dramatic words of President John F. Kennedy's Inaugural Address, when he pledged to go anywhere and to pay any price in the cause of freedom and democracy. After Kennedy's tragic assassination, the leaders of his party seemed to have applied a cost-benefit analysis to Presidential powers in the area of U.S. foreign policy. In the 200 years of this Republic, the United States has been involved in approximately 200 military conflicts, beginning on the high seas in 1789 and continuing in 1988 in the Persian Gulf. Was has officially been declared a half dozen times throughout American history. In the nine decades preceding the Constitutional Convention, the countries of the Western World fought in 38 wars, and only 1 of them was declared. At the close of the Argentia Conference in 1940, President Franklin D. Roosevelt confided to his soon-to-be British ally that he intended to wage war, and not to declare it. This is exactly the distinction made by the Framers that hot summer day in Philadelphia, when they distinguished between making war and declaring war. Yesterday morning, during our first war powers hearing, House Foreign Affairs Committee Chairman Dante Fascell asked: "How do you define 'war'?" The long history of constitutional practice provides the best answer available. The Founders were well aware of the need for national security. That was one of the reasons the Philadelphia Convention was originally summoned. Could it be that the men of Philadelphia did not spend much time on the precise distinction between war and hostilities because they knew the difference, and had no need to debate it at length? Mr. Chairman, I do not intend to trade the history of the Republic as it relates to the great issues of war and peace. I will leave that to our eminent witnesses. But I do think we ought to recognize that 200 years of state practice have had some legal meaning for the operation of our constitutional system. I don't agree with General von Clausewitz that war is merely diplomacy by other means. I do think, however, that the national interest sometimes mandates the use of armed force, or the threat of armed force. And I do not think that a congressional foreign policy is vastly superior to an executive branch foreign policy. As Secretary of State George Shultz has repeatedly said, “535 Secretaries of State are 534 too many." Professor Rossiter cogently observed more than a quarter century ago: "The Presidency of the future will grow out of the Presidency of the present. "We cannot afford to make the future hostage to our present whims. History may or may not teach, but it certainly provides examples. It also demonstrates that wrong choices have bad results. The War Powers Resolution of 1973 was a wrong choice by the Congress. Let us undo the minor constitutional damage that has already been done, before the greater political harm befalls us. I look forward to the seminar that our witnesses are about to engage in. Thank you, Mr. Chairman. PREPARED STATEMENT OF SENATOR PRESSLER-SEPTEMBER 16, 1988 Mr. Chairman, once again we are pleased to welcome two distinguished witnesses. A former Secretary of State and a former Secretary of Defense and Attorney General are certainly individuals who have been involved in major foreign policy and national security decisions. Both of them are distinguished lawyers and therefore highly qualified experts on such major legislation as the War Powers Resolution of 1973. If I remember correctly, Mr. Richardson was Attorney General during the initial passage by the Congress of the War Powers Resolution. Secretary Vance served during an administration which did involve itself in an act of humanitarian intervention in April 1980. Both of our witnesses have had long and distinguished careers in the executive branch of the Government, and both of them are highly knowledgeable in the important area of congressional-executive branch relations. Given the testimony we have already heard during the last several weeks, and during the last several days, cooperation rather than confrontation seems to be the key to a successful foreign policy. I happen to believe that the War Powers Resolution was a bad idea when it was passed over the President's veto, and that it continues to be a bad idea. It exacer bates rather than ameliorates congressional-Presidential relations. It institutionalizes interbranch conflict, and raises serious legal-political issues which so far have not been capable of either a political or a legal resolution. The distinguished chairman of the House Foreign Affairs Committee, Dante Fascell, was the first witness before this committee on this issue, and he put it bestinformal cooperation on a continuing basis. If the President and the Congress confide in one another, they will have confidence in one another. When that takes place, major international crises will not become, as they did with Vietnam and the war in Southeast Asia, major domestic crises. Mr. Chairman, the experience of our two witnesses with respect to the war powers is a rich one, and I look forward to their testimony. Thank you, Mr. Chair man. TREATISE ON CONSTITUTIONAL LAW--1988 POCKET PART Chapter 6 INTERNATIONAL AFFAIRS I. INTRODUCTION-THE ROLE OF THE THREE § 6.5 Limitations on the Treaty Power Page 387, add to footnote 6 (from previous page): 6. See generally, Glennon, United Myth, 24 Colum.J. of Transnational L. 509 States Security Treaties: The Commitment § 6.7 (1986). Conflicts Between Treaties and Acts of Congress Page 393, add to footnote 5: 5. United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986), on remand 800 F.2d 771 (8th Cir.1986) (Bald Eagle Protection Act abrogated any treaty right of Indian to shoot bald eagles). § 6.9 INTERNATIONAL AFFAIRS Ch. 6 III. THE WAR POWER § 6.9 Introduction Page 402, to be read as new text after footnote 4 In fact, from 1798 to 1970, there were over 130 cases where the President transferred arms or other war material abroad or actually sent troops, all without any congressional authorization." 4.1 See Appendix at end of § 6.10. § 6.10 Historical Development of the War Power Page 403, add to footnote 8: 8. See also, Appendix at end of this § 6.10. Page 405, add to end of page: involvement in. . . . In addition, from 1798 through 1970 (shortly before the 1973 enactment of the War Powers Resolution 19.1) historical research has shown many instances-137 cases-where the President, without Congressional authorization, has sent American troops into imminent hostilities or transferred arms or other war material abroad. These instances are summarized in the Appendix which follows this section. 19.1 See § 6.10. Page 405, to be read at end of page: President Reagan justified the 1983 American intervention in Grenada on three grounds: a confidential appeal from the Governor General of Grenada; a request for United States help from the Organization of Eastern Caribbean States, which relied on their collective defense treaty; and the need to protect approximately 1000 U.S. nationals on the island.20 20. Riggs, The Grenada Intervention: A Legal Analysis, 109 Military L. Rev. 1, 2 (1985). APPENDIX EXECUTIVE ACTION FROM 1798 THROUGH 1970 Cases where the President has sent troops into imminent hostilities or transferred arms or other war material abroad without Congressional authorization.* L. Gordon Crovitz developed this list by extensive historical research in State Department and Congressional reports. The list is published here with permission. See, Crovitz, "Presidents Have a History of Unilateral Moves," The Wall Ch. 6 THE WAR POWER § 6.10 1798-1800. President Adams responded to France's seizing of U.S. merchant ships by having the navy capture 90 French ships and the marines land on Santo Domingo. 1800. The marines aided the U.S. schooner Enterprise against a Spanish man-of-war in the West Indies. 1801-05. The Barbary War against Tripoli began when President Jefferson sent warships into the Mediterranean. Several pirate ships were sunk before Congress was informed of the mission. 1806. Troops crossed the Rio Grande into Spanish territory. 1806-10. Gunboats fought Spanish and French privateers. 1810. Troops seized territory in West Florida held by the Spanish. 1813-14. Marines built a fort to protect ships visiting the Marquesas Islands in the South Pacific, which were claimed by Spain. 1814-15. After 3,000 attacks on U.S. merchant ships, naval engagements were made against pirates throughout the Caribbean, especially off Cuba, Puerto Rico, Santo Domingo and the Yucatan peninsula. 1816-8. President Monroe made attacks on Spanish Florida, one against a fort and the other against Seminole Indians. 1818. The Navy landed at the Columbia River in Oregon, claiming possession of an area claimed by Russia and Spain. 1820-22. Marines protected commerce off the west coast of South America during a revolt against Spain. 1821-22. Naval attacks against Cuba, including the burning of vessels and the taking of booty, before congressional authorization. 1830. Marines helped capture slave ships off Haiti. 1831-32. Marines landed on Falkland Islands to free three seized ships from Argentine colonists. 1833. Marines and sailors landed in Argentina to protect U.S. lives and property during a revolt in Buenos Aires. 1835–36. Marines landed at Callao and Lima, Peru to protect U.S. lives and property and the consul during a revolt. 1836. Armed forces occupied territory claimed by Mexico during the Texas war for independence. 1837. Marines captured a Mexican ship after its crew seized two U.S. merchantmen. Street Journal, Jan. 15, 1987, at 18, col. 3-6. Mr. Crovitz, B.A., University of Chicago, 1980; M.A. (Jurisprudence) Oxford University 1982; J.D., Yale University 1986, is Assistant Editor of the Editorial Page of The Wall Street Journal. |