I saw how broad it was in its terms. Majority Leader Mike Mansfield-also a member of this Committee-reaffirmed his support for the 1964 Resolution,41 and he was followed by Minority Leader Everet Dirksen, who said: "I wish to make clear that the position of the [Republican] minority— and I think I speak for most of them-is that we completely separate ourselves from the views expressed by the distinguished Senator from Oregon [Senator Morse]."42 Later that year some House Republicans spoke critically of President Johnson's handling of the conflict, and Representative Edward Boland quickly came to the President's defense.43 A year later, in 1967—when there were in excess of 400,000 American soldiers in Vietnam-Representative Boland called the attention of his House colleagues to a poll taken in a high school in his Massachusetts district. Congressman Boland said that the poll showed that the students "overwhelmingly supported by over 80 percent—the commitment of the Johnson administration to Vietnam." He said the poll "not only shows strong support for the U.S. presence in Vietnam, it also shows strong support for a gradual escalation of the war effort." According to Mr. Boland, the poll reflected "a national trend" and "demonstrated that most voters support present policies in Vietnam."44 Congressional support for America's commitment to Indochina was reaffirmed time and again by the appropriation of new funds for the conflict by strong bipartisan majorities.45 For example, following the Gulf of Tonkin Resolution the Congress considered an Administration request for $125 million in additional funds for South Vietnam and provided instead $400 million.46 In April of 1965, Congress approved 40 112 CONG. REC. 4370-71 (1966). 45 Although section 8(a)(1) of the War Powers Resolution seeks to discount the importance of appropriations in ratifying presidential actions, the Supreme Court has frequently recognized its significance particularly in the area of "foreign policy and national security." See, e.g., Dames & Moore v. Regan, 435 U.S. 654, 678-79 (1981); The Prize Cases, 67 U.S. (2 Black) 635, 670-71 (1863); and Haig v. Agee, 453 U.S. 280, 291 (1981). 46 J. Emerson, "Congress and the Commitment to Vietnam," in AMERICAN BAR ASSOCIATION, CONGRESS, THE PRESIDENT, AND FOREIGN POLICY 65 (1984). another $700 million request in its entirety by a vote of 408 to 7 in the House and 88 to 3 in the Senate.47 In 1966 a $13 billion supplemental appropriations bill for Vietnam passed the House 389 to 3, and the Senate 87 to 2.48 The following year, a $12 billion Vietnam supplemental appropriation was approved 385 to 11 in the House, and 77 to 3 in the Senate (a combined margin of greater than 30 to 1).49 During House debate on this bill, an amendment to prohibit expenditure of funds for military operations in or over North Vietnam was rejected by a vote of 18 to 372.50 In my House testimony last month I describe how a variety of factors contributed to a shift in American public opinion on the conflict, and how "Vietnam" soon became a political liability for members of Congress. When President Nixon was elected—and there was no longer any pressure on congressional Democrats to show loyalty to the policies of their party's President-many Democrats acted just as their Republican counterparts had in the early 1950's. Just as an unpopular Korean conflict became "Truman's War," by 1969 Vietnam was "Nixon's War." The fact that Congress had overwhelmingly supported the initial commitment, and had played a full constitutional role in authorizing the conflict, was simply ignored. After all, there had been no formal "declaration of war" in those terms— and, besides, who in Congress wanted to be held accountable to an angry electorate over an obviously collapsing policy? Some of the more principled veterans could not tolerate this revisionism. Senator Sam Ervin-perhaps the most respected constitutional scholar in Congress at the time— told the Senate in 1970: Now, Mr. President, I maintain that the Gulf of Tonkin 47 Id. 48 Pub. L. 89-375 (1966). 49 Pub. L. 90-8 (1967). 50 2 CONGRESSIONAL QUARTERLY, CONGRESS AND THE NATION 1965-68 at 82 (1969). 51 116 CONG. REC. 15925-26 (1970). Senator Gale McGee, a highly principled veteran of this Committee, remarked that same year: "I have no doubt that in terms of this war, that, had it been successfully concluded in a year or 18 months, Members of this body would have been bragging about how the Senate of the United States approved the Gulf of Tonkin resolution and participated in that decision, and they would be seeking the credit for that resolution." Id. at 15730. But political courage was in short supply as opposition to the war intensified. Instead, Members of Congress assured their constituents that Congress certainly deserved no responsibility for "Nixon's War," and that they would act promptly to guarantee that no future "Imperial President" could drag the nation kicking and screaming into an unpopular foreign war against the wishes of Congress. The 1973 War Powers Resolution After prohibiting further U.S. combat activity in Indochina with the Cooper-Church Amendment,52 Congress enacted the 1973 War Powers Resolution—over President Nixon's veto. As Senator Javits-who seven years earlier had concluded: "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"53_explained in the Senate: The War Powers Act would assure that any future decision to Put simply, the War Powers Resolution was essentially a fraud (although many who voted for it no doubt did so in innocence). Congress had played a full role in getting the United States into the Vietnam conflict-and, indeed, some of the strongest supporters of the War Powers Resolution had earlier been sharp critics of the Executive for not sending combat troops earlier and escalating the war quicker.55 Its primary purpose was to keep Congress from being held politically accountable by an angry electorate—and in the process to pin all of the blame on an unpopular president of the minority party. And as I will explain later, it had the additional characteristic of being flagrantly unconstitutional. 52 Actually there were a series of such amendments. 53 112 CONG. REC. 4374 (1966). 54 119 CONG. REC. 1394 (1973). 55 See, e.g., supra note 31 and accompanying text. Implementation of the War Powers Resolution Mr. Chairman, five years ago I wrote a book about the War Powers Resolution which looked in some detail at about a dozen incidents which might arguably have come under its purview. This is not the time to review all of those cases. But I have detected an alarming theme in the way many members of Congress have reacted to these situations— and this might be an appropriate time to register my concern. Mayaguez Rescue I will begin56 with the May 1975 rescue of the crew of the S.S. Mayaguez from their Cambodian captors. A few years have passed, but I'm sure most of you recall the incident. I was working in the Senate at the time, and it was clear to me that the Ford Administration did not really "consult" with Congress. A handful of leaders-my boss among them were "informed" or "notified" of the rescue operation after it had already been set in motion and U.S. combat forces had entered Cambodian territory. Shots had already been fired before these "notifications" took place.57 Trying to put the best light on it, Senate Republican Leader Hugh Scott asserted: "We were informed. We were alerted. We were advised. We were notified. We were telephoned. It was discussed with us. I don't know whether that's consultation or not. We were advised that certain actions would be taken using the minimum force necessary."58 This hardly satisfies my sense of what real "consultation" ought to be--and even this "notification" did not occur until after the "introduction" of U.S. forces into the danger zone. Furthermore, section 2(c) of the War Powers Resolution makes no provision for the President to rescue endangered American citizens in the absence of a declaration of war 56 I am tempted to first address the evacuation of Indochina—in part because I was one of the evacuees who would have been abandoned when Congress adjourned its conference committee had President Ford not decided to authorize the evacuation on his own authority. This was not one of the Legislative Branches more impressive performances. President Ford had gone before a joint session of Congress on 10 April to ask Congress "to clarify immediately its restrictions on the use of U.S. military forces in Southeast Asia for the limited purposes of protecting American lives by insuring their evacuation, if this should be necessary." He said "I hope that this authority will never have to be used, but if it is needed, there will be no time for congressional debate. Because of the gravity of the situation, I ask the Congress to complete action on all of these measures not later than April 19." Quoted in R. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE 52 (1983). Four days after the President's "deadline," the Senate finally approved a bill. The House approved a different bill shortly thereafter. After a lengthy conference, the Senate approved the report but the House decided to delay a vote until after the weekend during which time the approach of North Vietnamese tanks forced the President to either abandon the Americans in Saigon or act on his own authority. Fortunately for those of us in Saigon at the time, he had the courage to act. The "clarification" the President has courteously requested from Congress was never approved. As Senator Eagleton later observed: "Congress fumbled the ball." Id. at 58. 57 Id. at 62. or other statutory authority. In this, and other, respects it is clearly unconstitutional.59 But the fact remains, President Ford clearly violated the language of the "law." Furthermore, the Cooper-Church Amendment was still theoretically in forcealthough it, too, in my view was unconstitutional-prohibiting the use of appropriated funds for combat operations "in or over or from off the shores of ... Cambodia."60 One might therefore have expected an angry Congress to take the occasion to confront the President for his "illegal" conduct. But that did not happen. Senator Mansfield rejected a reporter's characterization that the War Powers Resolution had been "to a slight extent, bent or violated," responding that "maybe he didn't have the time.61 Senator Church told the press: "From beginning to end, he had my full support." Senator Clifford Case added: "I don't want anyone saying that we liberals or doves would prevent the President from protecting American lives in a piracy attack."62 Ultimately, this Committee passed a resolution that said in part: "We support the President in the exercise of his constitutional powers within the framework of the War Powers Resolution to security the release of the ship and its men.' "63 Iran Rescue Five years later, after Iranian militants had seized the American Embassy in Tehran and more than 50 hostages, a different President tried another "rescue" operation to save American lives. As in the case of the Mayaguez, President Carter did not "consult" with congressional leaders until the rescue forces were already on Iranian territory. The Administration stressed that it had planned on discussing the operation with Congress prior to the final stage—and apparently concluded that deploying U.S. combat forces to an isolated desert landing site in Iran did not meet the "imminent involvement in hostilities" standard of section 3-the consultation provision. There were, of course, differences between the Mayaguez rescue and the attempt in Iran. Given the disorganized condition of Cambodia in May 1975, and the relative isolation of the island thought to be holding the Americans, one could argue that there was a somewhat greater need for "secrecy" in the Iran rescue. This would be a close call, and both Presidents decided not to inform Congress until the last minute. A significant |