TURNER-EXECUTIVE SUMMARY PREPARED STATEMENT OF ROBERT F. TURNER RESTORING THE "RULE OF LAW": Reflections on the War Powers Resolution at Fifteen Robert F. Turner Mr. Chairman, it is a great pleasure to be here this morning on this fiftieth anniversary of the infamous Munich Peace Conference—to assist this special subcommittee in its important work of reviewing the 1973 War Powers Resolution. I have prepared a rather lengthy formal statement, which with the committee's permission I will simply submit at this time for the record. It consists of five sections, which I would propose to summarize very briefly before addressing any questions you might have. I Part one seeks to set the War Powers Resolution in historical perspective. It suggests similarities between the current efforts in Congress to preserve peace by legislative constraints on the foreign affairs powers of the President and those in the late 1930's which, while equally well-intentioned, contributed ultimately to further foreign aggression and the involvement of the United States in World War II. It notes the successes of bipartisan foreign policy in the aftermath of that horrible conflict and traces several steps in the decision by the American Government to help defend the peoples of Indochina from communist aggression. In particular, it notes the special role played by such distinguished former members of this committee as Senators Mike Mansfield, Hubert Humphrey, and J. William Fulbright, in that commitment. And commitment it was, first with the Senate voting its consent to the ratification of the SEATO Treaty with only a single dissenting vote, and then with a combined margin of 504 to 2 in the enactment of a joint resolution authorizing the President, as he determined necessary, "to take all necessary steps, including the use of armed force, to assist" victims of aggression in Southeast Asia requesting our help. In explaining this important new law to their colleagues, the Chairman and Ranking Republican of this Committee had the following colloquy: MR. COOPER. [L]ooking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution? MR. FULBRIGHT. That is the way I would interpret it. TURNER-EXECUTIVE SUMMARY In the years which followed, both houses of Congress reflected the strong public support for the conflict by time and again appropriating billions of dollars by overwhelming majorities. When an effort was made in the Senate in 1966 to repeal the statutory authorization for the conflict, it was overwhelmingly rejected by a vote of 92 to 5. During that debate several Senate leaders observed that a formal "declaration of war" was both inappropriate and unnecessary, and Senator Javits—who later led the Senate effort to enact a War Powers Resolution-asserted "It is a fact, whether we like it or not, that by virtue of having acted on the resolution of August 1964, we are a party to present policy." The following year, when the American Bar Association issued a lengthy legal brief affirming the legality of the President's conduct of hostilities in Vietnam pursuant to the Gulf of Tonkin Resolution, Senator Javits introduced a lengthy excerpt from the brief in the Congressional Record and said: In my own thinking there can no longer be any doubt about the In November 1967 this Committee issued a report which concluded: The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to Formosa, the Middle East, and the Gulf of Tonkin are a proper method of granting authority This view was in keeping with decisions of the U.S. Supreme Court dating back to the year 1800. In the months and years which followed, however, American public opinion turned against the conflict in Vietnam. In order to avoid being held politically accountable, members of Congress began pointing to the fact that Congress had never "declared war"; and with the election of a president from the minority party in 1968 it became even easier for the congressional majority to denounce the conflict as "Nixon's War." This effort to avoid accountability was not limited to Democrats. A number of Republicans, who had for years been strong supporters of the conflict, joined in assuring their constituents that they would promptly act to prevent future "Imperial Presidents" from dragging the nation TURNER-EXECUTIVE SUMMARY kicking and screaming into unpopular foreign wars against the wishes of Congress. Representative Paul Findley, of Illinois, was perhaps typical of this group. In stressing his opposition to the conflict, he neglected to remind his constituents that as early as 1961 he had denounced Vice President Johnson and President Kennedy (who had been perhaps the most prominent Senate supporter of South Vietnam during the 1950's), for refusing to send combat troops to South Vietnam. For example, on 23 May 1961, Representative Findley said on the House floor: U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay . . . . No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the too-little, too-late policies which invite aggression. This is not to say that the Congress was completely devoid of courage during this time. The late Senator Sam Ervin, for example, who was widely regarded as the foremost constitutional scholar in this body and served as chairman of its Judiciary Committee, asserted in 1970: I am certain that when Congress passed the Gulf of Tonkin .... While enacting a series of statutory constraints which ultimately guaranteed a North Vietnamese victory and delivered the people of non-communist Indochina to a Stalinist tyranny and a bloodbath which may have taken more lives in two years of "peace" than were killed on all sides during thirteen years of combat, the Congress enacted the War Powers Resolution over a presidential veto in November 1973. Ironically, by its own terms, it recognizes the power of the Commander in Chief to commit United States armed forces to foreign hostilities pursuant to "specific statutory authorization." In other words, by its own terms it clearly would have had absolutely no effect in preventing the tragedy we know as "Vietnam." In the last fifteen years, the congressional attitude towards the Resolution's implementation has been characterized above all by a desire to avoid being held accountable for any policy failures. President Ford's Mayaguez rescue, which violated both the existing Cooper-Church statutory prohibitions against sending U.S. combat forces to Cambodia and several provisions of the War Powers Resolution, was greeted by this TURNER-EXECUTIVE SUMMARY Committee with a unanimous resolution of approval. When President Carter tried a similar effort in Iran, the Chairman and Ranking Minority member of the Committee denounced him for violating the War Powers Resolution. From my perspective the constitutional issues were the same-the difference was that President Ford's rescue effort was perceived by the voting public as a success, while President Carter's effort failed. This same element of political expediency characterized the reaction of many congressional leaders both before and after the students returned from Grenada and the polls showed better than 90 per cent support for the operation in the United States and also on Grenada. The Speaker of the House, who had only hours earlier characterized the operation as "gunboat diplomacy," announced that he had "reconsidered" the matter and felt President Reagan's actions were "justified." A special hearing called in the House Foreign Affairs Committee to examine the legal implications of the operation was quietly "postponed"—and has yet to be rescheduled. The resolution has proven to be a very safe way for members of Congress to avoid accountability during a dangerous national crisis—but this has not been without cost to the nation. In Lebanon, for example, shortly after a bitter and highly partisan Senate debate, our intelligence people reportedly intercepted a message from Islamic terrorists telling their forces: "If we kill 15 more Marines, the rest will leave." Days after this report was published, a terrorist attack killed 241 Marines. From my perspective, Congress deserves a great deal of the responsibility for that attack. II Part two of my statement presents a theoretical discussion of constitutional separation of national powers. It discusses the tremendous influence of such separation of powers theorists as Locke, Montesquieu, and Blackstone on the Founding Fathers-and notes that each of them argued that legislative bodies lacked the competence to deal with war and foreign affairs. Such matters could not be effectively regulated by antecedent "laws," and they required for their successful conduct the qualities of unity of plan, secrecy, and speed and dispatch—all of which were attributes of Executive power. Scholars who seek simply to "count up" the enumerated powers of Congress and the President and conclude that the Constitution is "an invitation to struggle"-tend to overlook the first section of article two of the Constitution, vesting "the executive power" in the President. As the late Professor Quincy Wright-who served as President of the American Political Science Association and the American Society of International Lawobserved in his 1922 classic study, The Control of American Foreign Relations: "when the TURNER-EXECUTIVE SUMMARY constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element in the grant...." But the Founding Fathers departed somewhat from the Lockean model, vesting certain powers "executive" in their nature in the Senate (such as a "veto" over the ratification of treaties) and the Congress (such as a veto over a decision to launch a war against another State). These were important checks against possible executive abuse. Relying on the "executive" power clause of article II, section 1, Thomas Jefferson wrote in 1790: The transaction of business with foreign nations is executive Writing in his Diary three days later, George Washington noted that he had shared Jefferson is undoubtedly the most frequently quoted Founding Father by those who argue for expanded congressional war powers. For example, Senator Mark Hatfield recently quoted Jefferson's 1789 letter to Madison which stated: We have already given in example one effectual check to the But consider that statement for a moment. Although the Articles of Confederation had given the Continental Congress all war-related powers, Jefferson asserted that the new Constitution had "transferred" this power from the Executive to the Legislative branch. This reflects his understanding—in the tradition of Locke, Montesquieu, and Blackstone— that all "war" powers were by their nature "Executive." And thus, using Jefferson's earlier analysis (which was also shared by Madison)—as an exception to the general grant of Executive power it was intended to be construed "strictly." Jefferson's chief rival was Alexander Hamilton, who wrote in 1793: It deserves to be remarked, that as the participation of the |