THE WAR POWERS DEBATES MAY PUSH OUR OPPONENTS TO MAKE A MAXIMUM EFFORT AT THE OUTSET WITH THE OBJECTIVE OF EITHER ELICITING A CONGRESSIONALLY MANDATED WITHDRAWAL OR PREVENTING THE FORMATION OF PUBLIC AND LEGISLATIVE SUPPORT FOR THE COMMITMENT BEYOND THE RUNNING OF THE SIXTY DAY LIMIT ON SUCH INVOLVEMENT. ÓN THE OTHER HAND, THE WAR POWERS DEBATE MIGHT HAVE AN OPPOSITE BUT EQUALLY DAMAGING EFFECT. OUR ENEMIES COULD PERCEIVE A GREAT ADVANTAGE TO THEMSELVES IN DELAYING ANY DECISIVE ENGAGEMENT ON THE BATTLEFIELD WHILE UNITED STATES DOMESTIC DEBATE WAS ALLOWED TO FESTER AND, AGAIN, THE RUNNING OF THE SIXTY DAY LIMIT BRINGS US CLOSER TO A DOMESTIC POLITICAL CRISIS. IT IS IMPORTANT TO REALIZE, HOWEVER, THAT THE REPORTING PROVISIONS OF THE RESOLUTION MAY ALSO IMPACT OUR OWN MILITARY TACTICAL DISPOSITIONS AND INITIATIVES. WHILE I DON'T BELIEVE THIS AFFECTS THE MAJOR DECISIONS TO COMMIT, ONCE OUR FORCES ARE DEPLOYED THERE ARE OFTEN SUPPORTING MILITARY STEPS THAT COULD BE TAKEN TO IMPROVE OUR POSITION. IF MILITARY JUDGMENT. THIS OUTCOME, OF COURSE, MAY BE WHAT SOME DESIRE, BUT I DON'T BELIEVE THAT DISCOURAGING MOVES THAT COULD IMPROVE THE U.S. MILITARY POSITION (AND PERHAPS SAVE AMERICAN LIVES) WAS PART OF THE ORIGINAL RATIONALE FOR THE WAR POWERS RESOLUTION. CERTAINLY, FROM MY PERSPECTIVE THIS IS AN UNFORTUNATE BY-PRODUCT. I AM CONFIDENT THAT THERE ARE WAYS TO ENSURE THAT THE CONGRESS IS ADEQUATELY INFORMED WITHOUT ALL OF THE ACCOMPANYING BAGGAGE WHICH THE WAR Powers RESOLUTION CARRIES. I WOULD STRONGLY RECOMMEND THAT YOU FOCUS YOUR EFFORTS ON WORKING ISSUE CAN ENSUE, IF SUCH IS NECESSARY, WITHOUT UNDULY JEOPARDIZING THE OPERATIONS THEMSELVES. PREPARED STATEMENT OF LOUIS HENKIN Mr. Chairman and Members of the Committee: My name is Louis Henkin. I am a professor at Columbia University, have held chairs in both Constitutional Law and International Law, and have written extensively on foreign affairs and the Constitution. pleased to be invited to join in your deliberations. I was I shall The subject you are considering is large and controversial. make some brief general comments on the constitutionality of war powers legislation, address some of the difficulties with the present text of the War Powers Resolution, and make some suggestions for its improvement. Of I will answer any specific questions if I can. course, I I begin with the Constitution. Mr. Nixon vetoed the War Powers Resolution principally on the ground that it was unconstitutional but his veto message did not detail which provisions of the Constitution the Resolution violated. He said only that it would "take away authorities which the President has properly exercised under the Constitution for almost 200 years." |