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Section 2, and most of section 3, seek to insure reasonable consultation with Congress, by requiring submission of reports to Congress by the President whenever he commits the U.S. forces to hostilities or potentially hostile situations, or when he enlarges our combat forces already located in foreign nations. Essentially the same provisions have been enacted previously by the House of Representatives in two preceding Congresses. Section 4(a), which seeks to insure prompt action by Congress on such reports, also is the same language as that already twice approved by the House. We consider these requirements to be entirely appropriate.
We have reservations, however, about the wisdom of the inclusion of section 3 (d), language which was not contained in the resolutions previously approved by the House. Section 3 (d) requires that the President communicate to Congress the estimated financial cost of any commitment of U.S. forces outside the United States. What point would there be in requiring the President to announce at the outset of a national security emergency his judgment as to the cost of committing of our forces? It may be argued that Congress needs a specific estimate of costs in order to help us make up our minds about whether or not to support the President. In our opinion, that information would be of no particular value to Congress but might be extremely revealing to an enemy. We believe that Congress would receive adequate information under the requirements of the other subsections of section 3, and that the advantages to be gained by hostile powers through the required financial disclosure would far outweigh any incremental benefit to Congress.
Section 4 (b) and (c) are at the heart of our objections to the resolutions. Section 4(b) provides that the President at the end of 120 days, without regard even to the immediate safety of our armed forces, must terminate any involvement of U.S. forces in hostilites outside the United States, and withdraw newly dispatched combat forces from the area of any foreign country (except for supply, replacement, repair or training deployments), unless the Congress by that time has enacted a declaration of war or "specifically" authorized the use of our Armed Forces.
This effort to limit the President's power-by the failure of Congress to take affirmative action-strikes us as highly dangerous. For example, suppose the President were to commit troops in Europe in order to defend our own country? That he has such power as Commander in Chief is not challenged, but the 120-day limitation might make it necessary for him to withdraw troops already fully committed to combat. At best, the limitation could only be construed as an effort to circumscribe sharply his ability to continue to exercise his power. To avoid such a reversal of national policy, a President might hurriedly escalate hostilities, to force Congress to support him, or in an effort to win the conflict within 120 days or an enemy might seek to avoid negotiating a settlement in the belief that the President would soon be forced to withdraw our troops. Thus the 120-day provision might actually promote, rather than deter, our involvement in hostilities.
Proponents may argue that in such a situation Congress would recognize the necessity of declaring war, or of specifically authorizing the use of troops. As a practical matter, however, Congress does not
always move quickly and a legislative deadlock might develop. Moreover, in our opinion it is highly undesirable for Congress, through its own inaction, to be able to determine whether a course of Presidential action should be continued.
The manifold constitutional and national security problems created by the 120-day provision of section 4(b) are compounded by section 4(c). This section provides that hostilities and deployments may be terminated by Congress alone at any time within the 120-day period, by means of a concurrent resolution having no force of law.
If the Commander in Chief, acting within his constitutional authority, orders our forces to deploy or to engage in hostilities, Congress may affect such action if it wishes, but necessarily must do so through use of its constitutionally granted powers. By seeking to provide that a concurrent resolution shall have the force of law, we are embarking on an extremely dangerous, and probably unconstitutional course of action.
There may be cases in which Congress has specifically authorized hostilities or deployments by constitutional means other than a declaration of war. Under Article I, Section 7 of the Constitution, authority granted by any bill, order or resolution may be repealed or amended only through the same process; once Congress has given its consent to legislation it may not be withdrawn unilaterally by the Congress with less than a two-thirds vote.
Section 5 is another example of the difficulty of trying to establish rigid procedures where, in fact, flexibility is required. During committee consideration it was clear that the practical effects of the time requirements were not adequately explored. For example, the question was raised, if the beginning of the last 45 days of the 120-day period coincided with the end of a Congress, would be the 15 days for committee consideration be binding upon the next Congress? A related question was whether Congress would be able to organize quickly enough to meet the deadline. These questions, in our opinion, were not answered satisfactorily.
While sections 7 and 8 are generally helpful, given their context, we strongly oppose the requirement of section 9 that this resolution be applied retroactively to cover hostilities existing on the day of its enactment which were previously authorized and initiated.
The proper and most useful role for Congress to play, in decisions of war and peace, cannot be developed through confrontation with the Executive. To function effectively, particularly in times of national crisis, our system of government must exhibit a maximum amount of cooperation between the two branches-executive and legislative. In the past such cooperation has been the means by which we have achieved successful policy decisions. It is to this end that we should be striving. House Joint Resolution 542 will not help-indeed, we bclieve it will seriously impede the achievement of this objective.
PETER H. B. FRELINGHUYSEN,
Letter of July 16, 1974, to Secretary of State Henry A. Kissinger, From Hon. Thomas E. Morgan, Chairman, Committee on Foreign Affairs, and Hon. J. W. Fulbright, Chairman, Committee on Foreign Relations
COMMITTEE ON FOREIGN AFFAIRS,
HOUSE OF REPRESENTATIVES,
Hon. HENRY A. KISSINGER,
Secretary of State,
Department of State,
DEAR MR. SECRETARY: We are writing to you concerning implementation of Public Law 93-148, the War Powers Resolution. As you know, this legislation established by statute the requirements and procedures to be followed to ensure the exercise by the Congress of its constitutional responsibilities concerning any decision to involve the United States Forces in hostilities. We believe that the effective and diligent implementation of P.L. 93-148 can remove from_contention an area which has been a subject of strain between the Executive Branch and the Congress in recent years.
Because the statutory mechanisms for implementation of the procedures set out in the law are activated in the first instance by the reporting system mandated in Section 4, we would like to know what arrangements have been made within the Executive Branch to ensure full and timely compliance. Specifically, we would like to know which responsible official within the Executive Branch has been designated as the "action officer" with respect to the Section 4 reporting requirements. Moreover, if the designated person is a civilian official such as the Legal Advisor of the Department of State, we would like to know what arrangements have been made for coordination with the pertinent elements in the military chain of command to ensure that he has full and immediate access to all information required to be reported to the Congress under the law.
We also believe that it may be useful for staff members of the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives to meet with officials of the Executive Branch designated by you for purposes of discussing the details of those implementation arrangements which require careful coordination and cooperation between the Congress and the Executive.
THOMAS E. MORGAN.
J. W. FULBRIGHT.
Letter of September 7, 1974, to Hon. Thomas E. Morgan, Chairman, Committee on Foreign Affairs, From Secretary of State Henry A. Kissinger
Hon. THOMAS E. MORGAN,
THE SECRETARY OF STATE, Washington, D.C., September 7, 1974.
Chairman, Committee on Foreign Affairs,
House of Representatives.
DEAR MR. CHAIRMAN: I appreciate the suggestions made in your letter of July 16 concerning implementation of the War Powers Resolution (P.L. 93-148). I am taking this matter up with the Secretary of Defense and will be back in touch with you as soon as our plans are developed.
HENRY A. KISSINGER.
Letter of October 7, 1974, to Hon. Thomas E. Morgan, Chairman, Committee on Foreign Affairs, From Secretary of State Henry A. Kissinger
Hon. THOMAS E. MORGAN,
THE SECRETARY OF STATE,
Chairman, Committee on Foreign Affairs,
House of Representatives.
DEAR MR. CHAIRMAN: On July 16 you wrote to me regarding the implementation of the War Powers Resolution. In particular, you asked what arrangements had been made within the Executive Branch to insure "full and timely compliance" with the reporting requirement of Section 4 of the Resolution. I am pleased to inform you that since my September 7 letter to you on this matter, Secretary Schlesinger and I have agreed that our respective legal counsels will be jointly responsible for bringing immediately to our attention cases where it would be appropriate for us to recommend to the President that a report be submitted to the Congress pursuant to Section 4 of the War Powers Resolution.
With regard to the question of access to information, I understand that several months ago the Office of the Secretary of Defense instituted an arrangement whereby the Legal Adviser to the Chairman of the Joint Chiefs of Staff informs the Department of Defense General Counsel of all troop deployment actions routed through the Chairman's office which could raise a question as to whether a report to the Congress is required. In implementation of that arrangement a written instruction was promulgated establishing a War Powers Reporting System within the Operations Directorate of the JCS. Arrangements have been made for this Department's Legal Adviser to receive the same information as is supplied to the DOD General Counsel. Consultations between the two departments' legal counsels will be arranged as needed.
George Aldrich, the Acting Legal Adviser, would be pleased to arrange for further discussions of this matter with you or with members of your staff if you so desire.
HENRY A. KISSINGER.