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Sec. 3 of the War Powers Resolution provides:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
Regarding the SS Mayaguez incident, see also ante, Ch. 2, § 1, p. 13; Ch. 7, $ 5.p. 423; Ch. 13, $ 3, p. 766, Ch. 14, § 1, p. 777.
Monroe Leigh, Legal Adviser of the Department of State, testified on June 4, 1975, before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, on the reporting of the Mayaguez incident as well as on the steps taken by the executive branch to comply with the "consultation" provisions set forth in section 3 of the War Powers Resolution (P.L. 93–148). The following is the principal Portion of Mr. Leigh's statement:
I wish to make a brief reference to the report concerning the Mayaguez affair which the President sent to the Speaker of the House and to the President pro tempore of the Senate early in the morning of May 15, 1975. The preparation of this report, and of the three preceding reports, in accordance with the War Powers Resolution, is in my view indicative of the good faith effort on the part of the administration to comply with the reporting requirements set forth in the War Powers Resolution.
it has frequently been difficult to comply with the proce dural provisions in section 4(a) of the Resolution. For example, section 4(a) requires the President to submit a written report containing certain specified information within a 48-hour period to the Speaker of the House and to the President pro tempore of the Senate. To comply with the 48-hour requirement in the last report which concerned the Mayaguez affair, the President had to be awakened at 2 o'clock in the morning in order to read and sign his report so that it could be delivered to the Speaker and the President pro tempore of the Senate. These deliveries were made to the offices of the Speaker and President pro tem at approximately 2:30 a.m. on May 15 about four hours before the expiration of the 48-hour period.
Returning to the question of consultation, ... three points are of significance in connection with the Mayaguez affair: (1) the congressional leadership was informed of the principal military operations prior to the actual commencement of those operations; (2) the congressional leadership did have an opportunity to express its views concerning the impending military operations; and (3) all views which were expressed by the congressional leadership either in the Cabinet room meeting on May 14 or in the two earlier telephone contacts with the White House staff on May 13 and 14 were communicated directly to the President.
With respect to the particulars of the executive branch's efforts to adhere to the consultation provisions in section 3 of the War Powers Resolution, ... although the Mayaguez incident was a rapidly unfolding emergency situation, four separate sets of communications took place between the executive branch and the congressional leadership. The first of these was carried out by White House staff officers at the direction of the President on the evening of May 13th between 5:50 p.m. and 7:20 p.m. One contact, however, was not made until 8:20 p.m. and another not until 11:00 p.m. Ten Members from the House side and 11 Senators were contacted regarding the military measures directed by the President to be subsequently taken to prevent the Mayaguez and its crew from being transferred to the Cambodian mainland, and to prevent any reinforcement from the mainland of Cambodian forces detaining the Mayaguez vessel and crew. The individual views expressed by each of the Members were communicated to the President. Among the Members contacted on the House side were the Speaker, the majority and minority leaders, and the Chairman and ranking minority Member of the House Committee on International Relations.
At approximately 8:30 p.m. that same evening, U.S. aircraft sank a Cambodian vessel seeking to approach the Mayaguez. This was the first fire from U.S. forces that was directed at Cambodian ships and forces during the entire affair.
T'he second set of communications took place on the following morning, May 14, 1975, between 11:15 a.m. and noon. At that time 11 Members of the House and 11 Senators were contacted and informed that three Cambodian patrol craft had been sunk; and that four others had been immobilized in an effort to prevent removal of the Mayaguez crew to the mainland. They were also informed at that time (1) that one Cambodian vessel had succeeded in reaching the mainland "possibly with some U.S. captives aboard"; and (2) that the first U.S. Navy vessel, the destroyer escort, Holt, had arrived in the area.
The House Members and Senators contacted included all of those that had been contacted on the previous evening. Once again, each of the individual views of the House Members and Senators was communicated to the President.
The third and fourth sets of communications involved State Department briefings and the President's White House meeting with the congressional leadership, respectively. On May 14, between 3:00 p.m. and 5:00 p.m., Department officials briefed members of the House International Relations Committee, the Senate Foreign Relations Committee, and the House Armed Services Committee concerning the status of the Mayaguez operation. The fourth communication occurred when the President met with the congressional leadership in the Cabinet room at the White House at approximately 6:30 p.m. on that same day. At that meeting the President personally briefed the leadership on the specific orders given by him for the recapture of the ship and the crew. There was an active exchange of views concerning the operations that had already taken place and the operations that were to take place later on the evening of May 14.
It is my view that these communications—which involve information from the President to the congressional leadership and views expressed by the congressional leadership being communicated to the President-were consistent with the provisions of section 3 of the War Powers Resolution. The President is called upon to consult "in every possible instance.” I realize that some have argued that the President could have done more to secure the views of Congress prior to ordering the final military action to recapture the Mayaguez and its crew. But one must consider the other things that the Chief Executive had to do to discharge his obligations under the Constitution. The period of decision extended at most from 7:30 a.m. Monday, May 12 (4 hours after the seizure) to 7:00 p.m. Wednesday, May 14, a period of about 60 hours. During this period the President set in motion the various diplomatic and military actions which resulted in the eventual release of the vessel and crew. He supervised the mobilization of the naval and air strength which were brought to bear on the situation; he initiated the diplomatic efforts to reach the Cambodian Government and to seek the assistance of the United Nations. He made the critical decisions authorizing the military to take hostile actions to prevent the ship and crew from being taken to the mainland. These were his inescapable constitutional responsibilities as Commander in Chief. Despite these continuous demands on his time, he saw to it that four sets of consultations were carried out-one of which he personally carried out with the leadership. Even in the light of hindsight, I believe that this was a remarkable effort by the President to cooperate with the Congress during a time of emergency decision making.
Dept. of State File No. P75 0105–2339. Hearings, War Powers: A Test of Compliance, before the Subcommittee on International Security and Scientific Affairs, Committee on International Relations, U.S. House of Representatives, 94th Cong., 1st Sess., May 7 and June 4, 1975, pp. 76–101.
Appearing before the same Subcommittee on June 4, 1975, Senator Jacob K. Javits stated that the War Powers Resolution had stood up well in its initial tests but he was critical of the manner in which the "consultation" provisions had been carried out. Excerpts from his statement follow:
... It is clear that, with respect to the Mayaguez incident, advance consultation with the Congress by the President fell far short of the intentions of those who drafted the legislation and those who voted overwhelmingly for it in both Houses of Congress.
A distinction must be made between the historic custom of giving advance notice to the congressional leadership of major Presidential decisions, and the prior consultations requirements of the law. The prior consultations required under the law should be conducted with the committees having legislative jurisdiction-meeting in their formal capacities as committees of the Senate and House of Representatives. If the President wishes to conduct the consultations personally, as he did in one instance with the Senate Foreign Relations Committee, the committee as a matter of courtesy can meet the President at the White House. Otherwise, I believe that it is incumbent upon the President to send his designated representative or representatives to appear before the Senate Foreign Relations Committee and the House International Relations Committee, in full and timely manner, to consult in the full sense of that térm.
The President would not be bound in any legal sense by the advice he received in the course of consultations with the committees. But, he would be rash to wholly discount it because any actions he may take after consultation are subject to congressional review, which under the terms of the law can range from disapproval to full endorsement.
the consultation process is not an authorization process. The War Powers Resolution itself deals only with emergency instances where the President introduces United States Armed Forces into hostilities in the absence of a Declaration of War by Congress. Even if his introduction of troops into hostilities is pursuant to a prior authorizing statute or resolution (not constituting a Declaration of War), such introduction is subject to the review and cut-off provisions of sections 4-7 of the War Powers Resolution. Moreover, the instances in which the President, as Commander in Chief, can introduce U.S. Armed Forces into hostilities without a Declaration of War are set forth in section 2(c) of the law.
... our experience with the Mayaguez incident demonstrates the wisdom of separating the consultation process from the congressional review or authorization process. Facts which were not revealed to the Congress in the unsatisfactory consultation process concerning the Mayaguez, but which have subsequently come to light, raise profound questions concerning the military actions taken in connection with securing release of the ship and the crew. For instance, we have learned that the amphibious assault by our marines was conducted against the wrong island, 20 minutes after the crew had been released. The lives of 41 U.S. servicemen were lost in connection with the release of 39 crew members. Bombing missions were conducted against an oil refinery and aircraft on the Cambodian mainland both known to our government to be nonoperational. In addition, it appears that the standard warning being given to all ships of the risk of being stopped in those waters was not given to the Mayaguez.
it is my judgment that the War Powers Resolution has worked in the first, rather elementary and non-controversial trial runs to which it has been subjected. But clearly there are no grounds for congressional, or national, complacency. The War Powers Resolution will work only as well as the Congress and the executive branch make it work. . . . Congress must further perfect our own organizational and implementation procedures. We must be assertive of the duty to exercise our responsibilities and prerogatives, while being restrained and responsible in the exercise of our judgments. And the executive branch... must be more forthcoming and conscientious both with respect to the prior consultation procedures and the reporting requirements.
For the full text of Senator Javits' statement, see Cong. Rec., Vol. 121, No. 91, June 11, 1975, pp. S10339_10340 (daily ed.). Hearings, ibid., pp. 61-75.
Introduction of Armed Forces into Hostilities
As a followup to his statement of June 4, 1975, concerning the Mayaguez incident, supra, Mr. Leigh was asked in what other situations the President might have inherent constitutional authority to commit American forces to combat situations not listed in section 2(c) of the War Powers Resolution. He supplied the following memorandum for the record:
Besides the three situations listed in subsection 2(c) of the War Powers Resolution, it appears that the President has the constitutional authority to use the Armed Forces to rescue American citizens abroad, to rescue foreign nationals where such action directly facilitates the rescue of U.S. citizens abroad, to protect U.S. Embassies and Legations abroad, to suppress civil insurrection, to implement and administer the terms of an armistice or cease-fire designed to terminate hostilities involving the United States, and to carry out the terms of security commitments contained in treaties. We do not, however, believe that any such list can be a complete one, just as we do not believe that any single definitional statement can clearly encompass every conceivable situation in which the President's Commander in Chief authority could be exercised.
Hearings, War Powers: A Test of Compliance, before the Subcommittee on International Security and Scientific Affairs, Committee on International Relations, House of Representatives, 94th Cong., 1st Sess., May 7 and June 4, 1973, pp. 94–95.
Sec. 2(c) of the War Powers Resolution states:
(c) The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances. are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Indochina Support Activities
In Harrington et al. v. Schlesinger et al., 528 F.2d 455(1975), decided October 8, 1975, the U.S. Court of Appeals for the Fourth