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provisions of subsection (b), use such Armed Forces in a number and manner essential to and directly connected with the protection of such United States citizens and their dependents while they are being evacuated. In the event that such evacuation cannot be accomplished without involving such Armed Forces in hostilities or in situations where imminent involvement in hostilities is clearly indicated by the circumstances, such evacuation shall, if feasible, be accomplished in a single operation. Other than the minimum number of personnel determined by the President to be essential to carry on critical functions of the United States mission or to carry out such evacuation, all such citizens who are employed by, or in the service of, the United States, and all such dependents, shall be evacuated as rapidly as possible after the date of enactment of this Act.
(b) If the President uses the United States Armed Forces for the purposes stated in subsection (a) of this section, he shall submit a report on the use of those forces as required by section 4(a) of the War Powers Resolution (including the certification required under subsection (c) of this section) and shall comply with all other provisions of that resolution.
(c) In addition to the information required under section 4(a) of the War Powers Resolution, the President shall also certify pursuant to subsection (b) of that section that,
(1) there existed a direct and imminent threat to the lives of such citizens and their dependents;
(2) every effort was made to terminate the threat to such citizens and their dependents by the use of diplomatic and any other means available other than use of the Armed Forces; and
(3) other than such essential personnel, such citizens and their dependents are being evacuated as rapidly as possible.
SEC. 5. In carrying out the withdrawal of such United States citizens and their dependents from South Viet-Nam pursuant to section 4 of this Act, the President is authorized to use the United States Armed Forces to assist in bringing out
(1) dependents of permanent residents of the United States;
(2) Vietnamese nationals eligible for immigration to the United States by reason of their family relationship to citizens of the United States; and
(3) other foreign nationals to whose lives a direct and imminent threat exists; if he determines and certifies in writing to the Congress pursuant to section 4(b) of the War Powers Resolution that
(A) every effort has been made to terminate the threat to such persons by the use of diplomatic and any other means available other than the use of the Armed Forces; and
(B) the number of such United States Armed Forces will not be required beyond those essential to and directly connected with the evacuation of citizens of the United States and their dependents; and
(C) the duration of the use of such United States Armed Forces to hostilities will not thereby be extended; and
(D) such evacuation will be confined to areas where United States forces are present for the purpose of protecting citizens of the United States and their dependents while they are being evacuated.
SEC. 6. The authority contained in this Act is intended to constitute specific statutory authorization within the meaning of section 8(a) of the War Powers Resolution but shall not be considered specific statutory authorization for purposes of sections 5(b) and (c) of the War Powers Resolution.
SEC. 7. Nothing contained in section 839 of Public Law 93-437, section 30 of Public Law 93–189, section 806 of Public Law 93–155, section 13 of Public Law 93–126, section 108 of Public Law 93–52, or any other comparable provision of law shall be construed as limiting the availability of funds for the use of the Armed Forces of the United States for the evacuation programs authorized by this Act.
SEC. 8. (a) The President shall transmit each day to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate a report setting forth fully and completely
(1) the number of citizens of the United States and their dependents who left Viet-Nam the previous day, including the number of Embassy personnel and private contract personnel among such persons;
(2) the number of such persons remaining in South Viet-Nam; and
(3) the number of Vietnamese nationals who left South Viet-Nam the previous day with the assistance of the United States.
(b) Such reports shall be transmitted until such date as the Speaker of the House of Representatives and such committee may direct. The information may be submitted on a confidential basis if the President deems it advisable.
SEC. 9. Not more than four days after the date of enactment of this Act, the President shall transmit to the Speaker of the House of Representatives and the chairmen and ranking minority members of the Committees on Foreign Relations, Judiciary, and Armed Services of the Senate a report describing his general plan for the evacuation from Viet-Nam of the persons described in sections 4 and 5 of this Act.
On April 29, 1975, H. Res. 425 to consider the Conference Report on H.R. 6096 was introduced, but almost immediately withdrawn at the request of the Speaker of the House, who was then at the White House.
See Cong. Rec., Vol. 121, No. 67, Apr. 29, 1975, pp. H3401-3402 (daily ed.).
On April 29, 1975, President Ford issued a statement that he had ordered the evacuation of all American personnel remaining in South Viet-Nam and that the evacuation had been completed.
See White House Press Release, Apr. 29, 1975; Weekly Compilation of Presidential Documents, Vol. 11, No. 18, May 5, 1975, p. 458. See also the President's third report to Congress under § 4 of the War Powers Resolution, ante, p. 869.
President Ford addressed a letter to the Speaker of the House of Representatives on April 30, 1975, requesting that the House act quickly to approve the Conference Report on H.R. 6096, but adding that “sections 4 through 9... have been overtaken by events and have no further utility." He stated:
.. the evacuation has been completed. The Congress may be assured that I do not intend to send the Armed Forces of the United States back into Vietnamese territory.
Senator Jacob Javits, in a speech to the Senate the same day, urged that the President's request to the Congress to clarify the question of his authority to use the armed forces for such purposes should be carried through to completion. He expressed the view that the President had authority under the Constitution to use the armed forces to evacuate Americans from a war zone but that he had no constitutional or legal authority to evacuate Vietnamese. He stated:
In using U.S. Armed Forces to evacuate Vietnamese, the President went beyond his constitutional authority. This is understandable and under the tragic circumstances probably inevitable, and I doubt that any of us as President would have done anything else, and in addition the President was buttressed by the fact that what he did was in substantial agree ment with the views of both Houses, as expressed in their separate bills and in the conference report-if it becomes law.
In order, therefore, to serve as an effective and adequate precedent for the future, however, and to ratify the agreement already, in effect, worked out by the Congress and the Executive concerning the President's actions, the conference report must become law. It will serve, as well, as a model and precedent in this all important war responsibility in the future, to have these questions of the power of the Congress definitively settled by this law. Not to do so will abort a vital element in the determination of who makes warand will be a disservice to our country.
See Cong. Rec., Vol. 121, No. 68, Apr. 30, 1975, p. 37114 (daily ed.).
On May 1, 1975, the House voted by 162 to 246 to reject the conference report on H.R. 6096, the “Viet-Nam Humanitarian Assistance and Evacuation Act of 1975."
Cong. Rec., Vol. 121, No. 69, May 1, 1975, p. H3551 (daily ed.).
Monroe Leigh, Legal Adviser of the Department of State, testified on May 7, 1975, in hearings concerning compliance by the Executive with the War Powers Resolution (Public Law 93–148; 50 U.S.C. 1541-1548) in the case of the Danang sealift, the evacuation of Phnom Penh, and the evacuation of Saigon. The hearings were held by the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations. Mr. Leigh supplied a memorandum in support of the President's constitutional authority to evacuate from areas of hostility U.S. citizens and foreign nationals whose rescue was interwoven with that of the Americans. The memorandum also explained the reasons for President Ford's request of April 10, 1975, for clarification of the legislative restrictions on the use of military forces in the Indochina evacuations. The memorandum follows:
THE PRESIDENT'S AUTHORITY TO USE THE ARMED
NATIONALS FROM AREAS OF HOSTILITY
1. The Constitutional Authority of the President
From the time of Jefferson to the present, American Presidents have exercised their authority under the Constitution to use military force to protect U.S. citizens abroad. Instances where this authority has been exercised in the absence of any legislative action include the Boxer Rebellion in China in 1900, and the landing of marines in Nicaragua in 1926.
During the Congo crisis of 1964 and the Dominican Intervention of 1965, large numbers of foreign nationals together with U.S. citizens were evacuated in military actions ordered by the President. A sample listing of occasions when Presidents have exercised authority to direct evacuations of Americans and of foreign nationals is attached as Appendix A to this memorandum.
The first explicit judicial recognition of this authority appears to be the U.S. Circuit Court decision in Durand v. Hollins, 8 Fed. Cas. 111, 112 (1860). This was a suit against a Navy commander for damages caused by his forces during an action to protect U.S. citizens in Greytown, Nicaragua, in 1854. The court found that since the military action was pursuant to a valid exercise of Presidential authority, the Navy commander was not liable:
Now, as it respects the interposition of the executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen or his property, cannot be anticipated and provided for; and the protection, to be effectual or of any avail, may, not unfrequently, require the most prompt and decided action.
The question whether it was the duty of the President to interpose for the protection of the citizens at Greytown against an irresponsible and marauding community that had established itself there, was a public political question, in which the government, as well as the citizens whose interests were involved, was concerned, and which belonged to the Executive to determine; and his decision is final and conclusive, and justified the defendant in the execution of his orders given through the Secretary of the Navy. (Emphasis added.)
The Supreme Court in In Re Neagle, 135 U.S. 1, 63-64 (1889), noted that the President had certain exclusive “rights, duties and obligations growing out of the Constitution itself" which included an implied obligation to protect U.S. citizens abroad. The Court then referred to a military action to protect one Martin Koszta, a foreign national who had merely indicated his intent to become a naturalized U.S. citizen:
While in Smyrna he (Koszta ) was seized by command of the Austrian consul general at that place, and carried on board the Hussar, an Austrian vessel, where he was held in close confinement. Captain Ingraham, in command of the American sloop of war St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his surrender to him, and was compelled to train his guns upon the Austrian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be placed in the hands of the French consul subject to the result of diplomatic negotiations between Austria and the United States. The celebrated corre spondence between Mr. Marcy, Secretary of State, and Chevalier Hulsemann, the Austrian Minister at Washington, resulted in the release and restoration to liberty of Koszta.... Upon what act of Congress then existing can one lay his finger in support of the action of our Government in
this matter? See also the Slaughterhouse Cases, 83 U.S. 79 (1872), where the Supreme Court said that one of the privileges and immunities of a U.S. citizen "is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government."
The nature and basis of the President's authority was suc cinctly stated by President Taft in 1916, following the termination of his term in office:
He (the President ) has done this (used military force to protect Americans ) under his general power as Commander in Chief. It grows not out of any specific act of Congress, but out of that obligation, inferable from the Constitution, of the Government to protect the rights of an American citizen against foreign aggression. ... (William Howard Taft, The President and His Power, (1967) p. 94–95 (originally published
in 1916).) This remains the position of the executive branch. 2. Effect of Statutes Restricting Use of Funds in Indochina
We do not believe that any conflict exists between the President's constitutional authority to take military action for the limited purpose of protecting American lives, and the various statutes which have been enacted since June of 1973 prohibiting the use of appropriated funds for the introduction of U.S. forces into hostilities in Indochina.
The legislative history of these statutes indicate that they were not intended to circumscribe the President's constitutional authority to protect the lives of U.S. citizens abroad.
During the floor debate on the Addabbo Amendment to the Continuing Appropriations Resolution for Fiscal Year 1974one of the earliest fund limitation provisions—the House Minority Leader inquired whether the amendment would affect the President's ability to protect "the lives of American civilians" in Indochina. Congressman Addabbo responded as follows: