The gentleman from Michigan is speaking of protective action. I am speaking of direct combat action by our forces. We are not amending the Constitution here this afternoon; we are taking a congressional prerogative. The President still has, as Commander in Chief, certain war powers and if any place in this world our forces are threatened or attacked he can move for the moment. . . .

Representative Ford then asked if it was correct "that the President as Commander in Chief has certain constitutional military responsibilities" which were beyond the scope of the funds limitation provision. Congressman Addabbo responded, "His rights under the Constitution as Commander in Chief, yes". 119 Cong. Rec. 21313 (June 26, 1973).

On August 3, 1973-after the first of these statutes was enacted but before their effective date-Admiral Moorer, then Chairman of the Joint Chiefs of Staff, said in executive session testimony before the Senate Foreign Relations Committee:

[T]he only time I think I said we might... use retaliatory fire was in the event we were trying to rescue Americans. I think you accept that as being-I do-a worldwide authority when we get into that type of crisis.

Chairman Fulbright then said that he recognized the President had such authority to rescue Americans, though he also sug gested that the U.S. should not create a situation making such action necessary. Testimony of Admiral Moorer before the Senate Foreign Relations Committee, August 3, 1973, page 40.

One might ask, if Presidential authority for evacuating U.S. citizens is so clear, why was the Congress asked to enact legislation clarifying that authority for the recent Indochina evacuations? A major consideration involved the national concern and controversy over the United States' overall role in Indochina, and the desire that any evacuation be supported by Congress as well as by the constitutional authority of the President. The protection of American citizens, the executive branch believed, should not be subject to potential disputes over interpretation of the Constitution or of the various statutes relating to Indochina.

A second reason involved the intimate relationship between evacuating Vietnamese nationals and evacuating U.S. citizens. It was determined that if substantial numbers of Vietnamese were not evacuated as part of a plan to evacuate Americans, the rescue of Americans would have been immediately and seriously jeopardized. Moreover, the United States had some responsibility to many Vietnamese who had long been associated with the United States.

It was clear that the various statutes restricting U.S. involvement in hostilities in Indochina did not apply to the evacuation of foreigners in situations where involvement by U.S. Armed Forces in hostilities was not imminent. Also, the President's constitutional authority to rescue foreign nationals as an incident to the evacuation of Americans had significant historical support. But since the evacuation of Vietnamese might have

raised questions beyond those applicable to an operation limited to Americans, the support and clarification of Congress was sought in the President's address to Congress on April 10, 1975.

APPENDIX A

Instances where U.S. Armed Forces Have Been Directed to Protect US. Citizens Without Congressional Authorization

1. Following the burning of the American and British Legations in Japan in 1863, the U.S. Minister in Japan was instructed to direct the Commander of the U.S.S. Wyoming to use "all necessary force" to insure the safety of Americans residing in Japan.

2. In 1868 a detachment of Japanese troops assaulted foreign residents including some Americans in the city of Hiogo. Naval forces of the United States and other Western powers made a joint landing to protect the foreign settlement.

3. In 1889, U.S. naval forces in the Pacific were ordered to extend full protection and defense to American citizens and foreigners in Samoa who were threatened by civil war in that island.

4. In 1900, approximately 2,500 U.S. troops were sent to join an international military force organized to protect foreign citizens and Legations in Peking during the "Boxer Rebellion" in China. At the request of Norway and Sweden, the U.S. Minister in China was instructed to extend "all possible proper protection" to Swedish and Norwegian missionaries attached to American missions in China.

5. In 1927, Nationalist soldiers in Nanking, China, attacked Americans and other foreigners. On March 22 of that year, eleven men from the U.S.S. Noa were landed to protect the American consulate. Additional forces were sent from the U.S.S. Preston to protect Americans and their property. The next month, 24 marines were landed at Hankow to protect an American business firm and in December, during a rebellion in Canton, marines were sent ashore to assist in the evacuation of Americans. By the end of 1927, the United States had 44 naval vessels in Chinese waters and 5,670 men ashore.

6. When local disturbances broke out in Nicaragua in 1926, the Government of that country requested that American forces undertake to protect the lives and property of Americans and other foreigners in Nicaragua. A U.S. naval commander was then instructed to establish neutral zones in Nicaragua to protect "lives and property of Americans and foreigners." In May of that year, a force of marines was landed for the purpose of establishing a neutral zone. Additional neutral zones were established later in the year. The American military presence in Nicaragua continued until 1933.

7. In 1964, more than 1,000 civilians of 18 nationalities, including Americans, were held as hostages by Congolese rebels near Stanleyville. With the authorization of the Government of the Congo, U.S. military transport planes landed Belgian paratroops in Stanleyville who effected a rescue during a four-day joint operation. Some of the foreign hostages had been killed by the rebels, including three Americans.

8. In 1965, President Johnson ordered U.S. Armed Forces to land in the Dominican Republic to evacuate Americans and foreign nationals. The U.S. Embassy in Santo Domingo had reported that the Dominican Government was unable to guarantee the safety of Americans and other foreigners during the insurrection then taking place. Between April 28 and May 9, 1975, 2,711 Americans and 1,726 other foreign nationals were evacuated.

For additional examples, see “Authority of the President to Repel the Attack in Korea", 23 Department of State Bulletin, 173 (1950); Memorandum of the Solicitor for the Department of State, October 5, 1912, "Right to Protect Citizens in Foreign Countries by Landing Forces", (2d ed., 1929); "Power of the President to Send the Armed Forces Outside the United States", Committee print prepared for the Joint Committee made up of the Committee on Foreign Relations and the Committee on Armed Services of the Senate, February 28, 1951, 82d Congress, 1st session.

Hearings on War Powers: A Test of Compliance before the Subcommittee on International Security and Scientific Affairs of the Committee on International Relations, House of Representatives, 94th Cong., 1st Sess., May 7 and June 4, 1975, pp. 29-33.

SS Mayaguez Incident

President Ford reported to Congress on May 15, 1975, in accordance with section 4(a)(1) of the War Powers Resolution (P.L. 93148; 50 U.S.C. 1543(a)(1)), the military action which he had ordered to be taken to recover the U.S. merchant ship SS Mayaguez and its crew of 40. The vessel had been fired upon and seized by the armed forces of Cambodia in international waters on May 12, 1975.

The President's letters, addressed to the Speaker of the House of Representatives and the President pro tempore of the Senate, are quoted below:

DEAR MR. SPEAKER: (President pro tem)

On May 12, 1975, I was advised that the S.S. Mayaguez, a merchant vessel of United States registry en route from Hong Kong to Thailand with a U.S. citizen crew, was fired upon, stopped, boarded, and seized by Cambodian naval patrol boats of the Armed Forces of Cambodia in international waters in the vicinity of Poulo Wai Island. The seized vessel was then forced to proceed to Koh Tang Island where it was required to anchor. This hostile act was in clear violation of international law.

In view of this illegal and dangerous act, I ordered, as you have been previously advised, United States military forces to conduct the necessary reconnaissance and to be ready to respond if diplomatic efforts to secure the return of the vessel and its personnel were not successful. Two United States reconnaissance aircraft in the course of locating the Mayaguez sustained minimal damage from small firearms. Appropriate demands for the return of the Mayaguez and its crew were made, both publicly and privately, without success.

In accordance with my desire that the Congress be informed on this matter and taking note of section 4(a)(1) of the War Powers Resolution, I wish to report to you that at about 6:20 a.m., May 13, pursuant to my instructions to prevent the movement of the Mayaguez into a mainland port, U.S. aircraft fired warning shots across the bow of the ship and gave visual signals to small craft approaching the ship. Subsequently, in order to stabilize the situation and in an attempt to preclude

removal of the American crew of the Mayaguez to the mainland, where their rescue would be more difficult, I directed the United States Armed Forces to isolate the island and interdict any movement between the ship or the island and the mainland, and to prevent movement of the ship itself, while still taking all possible care to prevent loss of life or injury to the U.S. captives. During the evening of May 13 a Cambodian patrol boat attempting to leave the island disregarded aircraft warnings and was sunk. Thereafter, two other Cambodian patrol craft were destroyed and four others were damaged and immobilized. One boat, suspected of having some U.S. captives aboard, succeeded in reaching Kompong Som after efforts to turn it around without injury to the passengers failed.

Our continued objective in this operation was the rescue of the captured American crew along with the retaking of the ship Mayaguez. For that purpose, I ordered late this afternoon [May 14] an assault by United States Marines on the island of Koh Tang to search out and rescue such Americans as might still be held there, and I ordered retaking of the Mayaguez by other marines boarding from the destroyer escort Holt. In addition to continued fighter and gunship coverage of the Koh Tang area, these Marine activities were supported by tactical aircraft from the Coral Sea, striking the military airfield at Ream and other military targets in the area of Kompong Som in order to prevent reinforcement or support from the mainland of the Cambodian forces detaining the American vessel and crew.

At approximately 9:00 p.m. EDT on May 14, the Mayaguez was retaken by United States forces. At approximately 11:30 p.m., the entire crew of the Mayaguez was taken aboard the Wilson. U.S. forces have begun the process of disengagement and withdrawal.

This operation was ordered and conducted pursuant to the President's constitutional Executive power and his authority as Commander in Chief of the United States Armed Forces.

Weekly Compilation of Presidential Documents, Vol. 11, No. 20, May 19, 1975, pp. 514-515; Senate Doc. 94-56, 94th Cong., 1st Sess.

Sec. 4(a)(1) of the War Powers Resolution, in accordance with which President Ford reported the U.S. military action in the SS Mayaguez incident, provides:

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introdue tion took place; and

(C) the estimated scope and duration of the hostilities or involvement.

Consultation with members of Congress concerning the SS Mayaguez seizure and the U.S. response took place before and during the period of U.S. military action. On May 14, 1975, the White House announced in a news briefing that prior to ordering the military action, the President, through phone calls by his congressional liaison staff, had consulted with the following members of Congress:

-the Speaker of the House and President pro tempore of the Senate;

-the bipartisan leaders of the House and Senate;

-the Chairmen and ranking Republican Members of the House and Senate Armed Services Committees;

-the Chairmen and ranking Republican Members of the House and Senate Appropriations Committees; and

-the Chairmen and ranking Republican Members of the Senate Foreign Relations and House International Relations Committees. See Weekly Compilation of Presidential Documents, Vol. 11, No. 20, May 19, 1975, p. 511.

On May 14, 1975, the Senate Committee on Foreign Relations received a briefing in closed session from Deputy Assistant Secretary of State for East Asian and Pacific Affairs J. Owen Zurhellen on the situation resulting from the Cambodian seizure and subsequent U.S. retaliatory actions. Following the briefing, the Foreign Relations Committee unanimously approved, by voice vote, a resolution supporting the President's right to use force within the limits of the War Powers Resolution. The resolution reads as follows:

Committee condemns an act of armed aggression on an unarmed United States merchant vessel in the course of innocent passage on an established trade route.

The President has engaged in diplomatic means to secure its release, and we support that.

Third, we support the President in the exercise of his constitutional powers within the framework of the War Powers Resolution to secure the release of the ship and its men.

We urge the Cambodian Government to release the ship and the men forthwith.

The New York Times, May 15, 1975, p. 18.

The White House announced on May 15, 1975, that, prior to making the announcement that the vessel and crew had been recovered, the President and his congressional liaison staff phoned congressional leaders to inform them of the accomplishment of the mission.

See Weekly Compilation of Presidential Documents, Vol. 11, No. 20, May 19, 1975, p. 514.