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the Philip Buchen Files at the Gerald R. Ford Presidential Library.
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TAB A
Summary of Legislative Restrictions
I. Provisions Regarding All of Indochina: Limitation
on Use of Funds to Finance Cross-Border Operations
Section 31 of the Foreign Assistance Act of 1973
(Pub. L. 93-189) provides that no funds authorized or
appropriated under any provision of law shall be
available to finance military or paramilitary combat
operations by foreign forces in Laos, Cambodi North
Vietnam, South Vietnam or Thailand unless such opera-
tions are conducted by the forces of the recipient
government within its own borders. (See also Section
III A of this summary, below, with regard to further
restrictions on Vietnamese forces in Cambodia.)
II. Provisions Regarding Cambodia
A. Financial Ceiling for Cambodia
Section 655 of the Foreign Assistance Act of
1961, as amended (Added by § 304 (b) of Foreign Assistance
Act of 1971, Pub. L. 92-226, February 7, 1972).
This section imposes a ceiling of $377 million
for the fiscal year 1975 on the obligation of funds
"for the purpose of carrying out directly or indirectly
any economic or military assistance, or any operation,
project or program of any kind, or for providing any
goods, supplies, materials, equipment, services,
personnel, or advisers in, to, for, or on behalf of
Cambodia during the fiscal year ending June 30, 1975."
In addition to this ceiling, this section places a limit
of $75 million on the use during fiscal year 1975 of
the President's authority under Section 506 of the
Foreign Assistance Act to provide defense articles
from DOD stocks and defense services to Cambodia.
B. U.S. Citizens and Third Country National
Personnel Coilings for Cambodia
Section 656 of the Foreign Assistance Act of
1961, as amended (Added by Section 304 (b) of the
Foreign Assistance Act of 1971).
BERALD FORD LIBRARY
Digitized from Box 65 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
2
This section contains two separate personnel
restrictions:
(1) a limit of 200 is placed on the total number
of officers and employees of the Executive
Branch who are U.S. citizens, including
members of the Armed Forces of the United
States, "present in Cambodia at any one time."
Excluded are members of the Armed Forces while
they are actually engaged in air operations
in or over Cambodia originating outside
Cambodia;
(2) the United States is precluded from paying
at any time "in whole or in part, directly
or indirectly "the compensation or allowances
of more than 35 individuals in Cambodia who
are citizens of countries other than Cambodia
or the United States. Volunteer workers and
employees of private relief organizations
engaged in humanitarian assistance are
excepted from these ceilings.
III. Vietnam
A. Limit on Military Assistance and Proviso that
it Shall not be Used to Finance Vietnamese
Troops to go to M.d of. Governments of Laos
or Cambodia
Section 401 (a) (1) of the Armed Forces Supplemental
Appropriation Authorization Act of 1966, as amended, places
a limit of $1, 126, 000, 000 on DOD funds which may be
expended for Vietnam and limits the purpose of such
expenditures to support of "Victnamese and other free
world forces in support of Victnamese forces." A
proviso prohibits the use of these funds (Military
Assistance Service Funded - or "MASF") to support
Vietnamese or other free world forces in actions designed
t:0 give military support and assistance to the Governments
of Laos or Cambodia. (The legislative history of this
proviso makes clear that cross-border operations in
sanctuary areas were not intended to be precluded by
the section.)
BERALD N. FORD LIBRARY
- 3 -
B. Ceiling on U.S. Citizen and Third Country
National Personnel in Vietnam
Section 38 of the Foreign Assistance Act of
1974 imposes the following limitations:
(1) Effective June 30, 1975, a limitation
of 4,000 is placed on the total number
of civilian officers and employees,
including contract employees, of executive
agencies of the U.S. Government present
in South Vietnam at any one time, not more
than 2,500 of which may be members of the
U.S. Armed Forces and DOD direct-hire and
contract employees. Effective December 30,
1975, these numbers are reduced to 3,000
and 1,500 respectively.
(2) Effective June 30, 1975, the total number
of third country nationals in Vietnam at
any one time whose "compensation or allowances"
are paid "in whole or in part, directly or
indirectly" by the U.S. Government shall not
exceed 800. Effective December 30, 1975,
this number is reduced to 500.
Volunteer workers or employees of private relief
organizations engaged in humanitarian assistance are
excepted from these ceilings.
IV. Laos: Financing
Section 40 (a) of the Foreign Assistance Act of
1974 places a ceiling of $70,000,000 on funds which
may be obligated during FY 1975 for assistance-related
activities in Laos, $30,000,000 of which may be utilized
for provision of military assistance.
FORD - LIBRARY
[April 1975?]
LEGISLATIVE RESTRICTIONS ON EXECUTIVE AUTHORITY:
#3
WAR POWERS, EXECUTIVE AGREEMENTS AND
EXECUTIVE PRIVILEGE
I.
Restrictions on the President's War Powers Authority
Over the last five years many statutes have been
enacted which restrict the President's ability to affect
overseas hostilities, principally in Southeast Asia, through
material and advisory assistance to friendly governments.
Inasmuch as these restrictions do not directly restrict the
President's authority as Commander-in-Chief, they are not
discussed in detail in this paper. A brief description of
the most important of them is attached.
Only three legislative restrictions directly affect the
war powers of the President: The Cooper-Church Amendment;
the prohibition against "combat activities" by United States
military forces "in or over or from off the shores of North
Vietnam, South Vietnam, Laos, or Cambodia after August 15,
1973; and the War Powers Resolution.
A. Cooper-Church Amendment (Section 7 (a) of the
Special Foreign Assistance Act of 1971, as
amended)
Description. As originally enacted in 1971,
Section 7 (a) prohibited the use of any "funds authorized or
appropriated pursuant to this or any other act to
finance the introduction of United States ground combat troops
into Cambodia, or to provide United States advisers to or for
Cambodian military forces in Cambodia." In 1972 this section
was amended to prohibit the introduction into Cambodia of
U.S. ground combat troops and "United States advisers to or
for military, paramilitary, police, or other security or
intelligence forces in Cambodia."
Issues. The Cooper-Church Amendment was in response
to the introduction of American forces into Cambodia in the
Spring of 1970. It never became a subject of conflict between
the executive and legislative branches because soon after
the introduction of these forces it became the stated policy
of the Administration that, after July 1, 1970, "the only
BERALD R. FORD LIBRARY
- 2 -
remaining American activity in Cambodia
...
will be air
missions to interdict the movement of enemy troops and
materiel.' (President Nixon's Report on Cambodia,
June 3, 1970.) This intention was also expressed by
Secretary Rogers in hearings before the Senate when he
said "We have no intention of getting ground troops in-
volved in Cambodía, and we are not going to get involved
with military advisers in Cambodia; we are not going to." /
Indeed, the amendment itself clearly indicates that the
congruence of executive intentions with congressional desires
was an important consideration in its enactment. **/ Thus,
no arguments have been raised on behalf of the executive
branch in opposition to this restriction.
B. Prohibition against Combat Activities by United
States Military Forces in Indochina
Description. This restriction was originally
enacted in the Second Supplemental Appropriations Act of:
1973 and in the resolution continuing appropriations into
fiscal year 1974. ***/ It has since been repeated in several
other statutes. **** The effect of all of these restrictions
is to prohibit the use of any appropriations for the direct
or indirect financing of "combat activities by United States
military forces in or over or from off the shores of North
Vietnam, South Vietnam, Laos or Cambodia.' *****/
/
Senate Report 91-1437, December 14, 1970, page 9.
/
Section 7 (a) begins: "In line with the expressed
intention of the President of the United States
"
***/
Pub. L. 93-50 $307 (Second Supplemental Appropriations
Act, 1973) and 93-52 $108 (Continuing Appropriations,
1974).
**** / See Pub. L. 93-126 $13 (Department of State Appropriations
Act of 1973; Pub. L. 93-189 $31 (Foreign Assistance Act
of 1973), Pub. L. 93-155 $806 (Department of Defense
Authorization Act of 1974), Pub. L. 93-238 $741 (Depart-
ment of Defense Appropriation Act, 1974), and Pub. L. 93-
1975). 437 §849 (Department of Defense Appropriation Act,
***** / Pub. L. 93-238 $741 (Department of Defense Appropriations
Act, 1974).
FORD LIBRA
- 3 any
Issues. This restriction was originally enacted
as the result of a compromise between the President and
the Congress in the summer of 1973. Its enactment was not,
as a formal matter, opposed by the executive branch. How-
ever, an earlier version which would have cut off funds at
the end of June rather than on August 15, 1973, was vetoed.
The arguments raised in opposition to the carlier
cut-off did not relate to broad questions of executive
authority. Rather, they dealt with specific issues such as
the effect of an American bombing halt on the prospects for
a negotiated settlement, the likelihood that such a halt
would lead to a Communist military victory and the effect of
United States acquiescence in Communist violations of the
Paris Agreement on our general creditability abroau. Though
one could argue that events have vindicated the position of
the executive branch on these issues, we have not done so,
at least not in relation to the "combat activities" pro-
hibitions.
C. War Powers Resolution (Pub. L. 93-148, November 7,
1973)
Description. The War Powers Resolution requires that
the President submit a report to Congress whenever United
States Armed Forces are introduced "into hostilities or into
situations where imminent involvement in hostilities is
clearly indicated by the circumstances," or into the territory
of a foreign state while equipped for combat or in numbers
which substantially enlarge our combat equipped forces already
located in such territory. The Resolution further requires
that the President "terminate any use" of U.S. Armed Forces
introduced into hostilities or into situations when imminent
involvement in hostilities is indicated within 60 days unless
the Congress (1) has declared war or enacted a specific
authorization for the activity in question, (2) has extended
by law the 60-day period or (3) is physically unable to meet
as a result of an armed attack. The Resolution also provides
that the Congress may require, by concurrent resolution, the
earlier termination of the involvement of U.S. forces in
hostilities.
Issues. The long arguments over the War Powers
Resolution concerned essentially two issues: the consti-
tutionality of certain parts of the Resolution and the
Resolution's possible effect on our ability to use our
armed forces decisively and effectively in a variety of
situations.
FORD is LIBRARY BERALD
- 4 -
(1) Constitutionality. The principal constitutional
objection raised by the executive branch related to the re-
quircment that forces be withdrawn within 60 days unless
Congress took positive action to authorize their continued
involvement in hostilities and to the requirement that such
forces be withdrawn even earlier if so directed by a concur-
rent resolution of the Congress. With respect to the first
requirement, it was argued that since the authority of the
President to introduce forces into hostilities is based on his
constitutional authority as Commander-in-Chief and Chief
Executive, the Congress may not effectively terminate a given
exercise of that authority by a mere failure to take positive
action. Nor, it was argued, could such an exercise of con-
stitutional authority be terminated by concurrent esolution ---
"an act which does not normally have the force of law, since
it denies the President his constitutional role in approving
legislation. "
(2) Policy Issues. The basic policy argument
of the Administration, as set forth in the veto message, was
that enactment of the War Powers Resolution would "seriously
undermine this nation's ability to act decisively and con-
vincingly in times of international crises. " This, it was
further argued, would undermine the confidence of our allies
in our ability to assist them and interject a "substantial
element of unpredictability
into the world's assess-
ment of American behavior, further increasing the likelihood
of miscalculation and war. If
Subsidiary, more specific arguments were also
raised. It was pointed out that the 60-day termination
requirement could serve to prolong or intensify a crisis
situation in the hope that the United States would be forced
to withdraw at the end of 60 days. Certainly, it was argued,
there would be little incentive for an adversary to enter
into negotiations until such time as the Congress had au-
thorized continued military involvement. It was also claimed
that the Resolution might force the President to intensify
our military actions more than otherwise would have been
necessary in order to achieve certain objectives within the
60-day time limit.
* / President's Veto Message regarding the War Powers
Resolution, October 24, 1973, in the Department of
State Bulletin, November 26, 1973, page 662.
FORD LIBRARY
- 5 -
Present Position. Though there has been no
comprehensive statement of the attitude of the executive
branch toward the War Powers Resolution since its enact-
ment, WC have been following a policy of conscientious
attention to the requirements of the Resolution. No sit-
uation has yet arisen which, in our view, has required the
submission of a report under Section 4 (a) of the Resolution.
Procedures have been established, however, for prompt con-
sideration by the Departments of State and Defense of any
movement of United States forces which might require such a
report. We also, of course, have not yet had to face a
situation which presented a real constitutional question.
We cannot now determine how we would deal with such a situa-
tion should one ever arise. Hypothetical questions of this
sort might be answered along the following lines:
"We do not anticipate any constitutional
crisis in the operation of this new law
because it is our hope that cooperation
between the two branches will be such that
the Congress will support the President if
and when military action becomes necessary
to protect the interests of this nation. "
/ The Chairmen of the House Foreign Affairs Committee
and the Senate Foreign Relations Committee were advised
of these procedures on October 7, 1974.
FORDO in LIBRARY
GERALD R. FORD
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STATEMENT OF BENJAMIN FORMAN
ASSISTANT GENERAL COUNSEL, DEPARTMENT OF DEFENSE
BEFORE THE SENATE JUDICIARY
SUBCOMMITTEE- ON SEPARATION OF POWERS
SEPTEMBER 9, 1975
Mr. Chairman and Members of the Committee:
I am appearing here today, together with Mr. Morton I.
Abramowitz, Deputy Assistant Secretary of Defense (International
Security Affairs) for East Asia and Pacific Affairs, in response
to the invitation of the Subcommittee to the Secretary of
Defense to testify "regarding the extent of the President's
Commander-in-Chief power unilaterally to introduce U.S. armed
forces into hostilities and regarding certain instances of the
President's exercise of such power or of the possible future
exercise of such power. "
As our nation enters its bicentennial year, it would
appear eminently fitting that attention be focused on our
Constitution, and since we have but recently terminated an
extended period of unpopular hostilities, that the respective
war power of the President and the Congress be particularly
examined. It should be noted, however, that after 200 years
of extended and often intensive debate about the war power
no fresh insights may reasonably be expected to come from
these hearings.
The records of the Constitutional Convention and the
contemporaneous writings of the Founding Fathers are familiar
TORO - LIBRARY
2
ground to historians and students of Constitutional law. Like
biblical texts, they have been subjected to exacting exegesis
in an effort to extract detailed commandments for our guidance
from the very general and broad wording of Article II of the
Constitution. To quote Mr. Justice Jackson in the Steel
Seizure case about the vagueness of the language of Article II
(72 S. Ct. 863, 869-870) :
"Just what our forefathers did envision, or
would have envisioned had they foreseen modern
conditions, must be divined from materials
almost as enigmatic as the dreams Joseph
was called upon to interpret for Pharaoh. A
century and a half of partisan debate and
scholarly speculation yields no net result
but only supplies more or less apt quotations
from respected sources on each side of any
question. They largely cancel each other.' "
Mr. Justice Jackson further observed with respect to the Commander-
in-Chief clause that (Id. at 873)
"These cryptic words have given rise to some
of the most persistent controversies in our
constitutional history. Of course, they imply
something more than an empty title. But just
what authority goes with the name has plagued
Presidential advisers who would not waive or
narrow it by nonassertion yet cannot say where
it begins or ends."
Similarly, the governing court decisions--which are
relatively few in number-have not definitively resolved the
full scope of Presidential Commander-in-Chief power. In part,
these decisions are inconclusive because of the tradition that
FORD in LIBRARY 03
3
Constitutional issues are dealt with on the narrowest grounds
possible. In part, they reflect the fact that challenged
actions of the President in the war power context do not
normally rely solely on the Commander-in-Chief power. The
President's Executive Power, his Foreign Relations Power, his
duty to take care that the laws-including the Constitution and
treaties made under the authority of the United States--be
faithfully executed, the responsibility to protect the States
of the Union against invasion, his Constitutionally-prescribed
oath of office, and his statutory powers exercisable during
national emergency have all been cited, sometimes conjunctively,
as the basis for various exercises of the war power by the
President.
Because these judicial precedents and the debates of the
Founding Fathers do not provide ready answers to war power
issues which recur periodically, Presidents, legislators, litigants
and scholars have also relied on the precedents established by
prior Presidential or Congressional actions. While opposing
parties have been known to claim the same incident as a precedent
for their side because of varying emphasis placed on the facts
of the incident or because of disputed facts, it is generally
accepted that such precedents are a valid tool in Constitutional
interpretation. As Mr. Justice Frankfurter declared in the Steel
Seizure case (op. cit. supra at 897) :
BERALD FORD LIBRARY
4
"The Constitution is a framework for government.
Therefore the way the framework has consistenly
operated fairly establishes that it has operated
accordingly to its true nature. Deeply embedded
traditional ways of conducting government cannot
supplant the Constitution or legislation, but
they give meaning to the words of a text or supply
them. It is an inadmissibly narrow conception of
American constitutional law to confine it to the
words of the Constitution and to disregard the
gloss which life has written upon them. In short,
a systematic, unbroken, executive practice, long
pursued to the knowledge of the Congress and
never before questioned, engaged in by Presidents
who have also sworn to uphold the Constitution,
making as it were such exercise of power part of
the structure of our government, may be treated
as a gloss on 'executive Power' vested in the
President by § 1 of Art. II."
Inasmuch as war power issues have far from been ignored by
the Congress during the past 200 years, it is not surprising that
all the relevant materials have previously been collected and
published by the Congress. Within the past three decades--
spurred by the so-called Great Debate of 195 on the issue of
stationing U.S. forces in Europe and the subsequent debates
about the Korean War, the Vietnam War, the National Commitment
Resolution, and the War Powers Resolution- there have been
repeated hearings before various committees and extensive floor
debate on a number of bills and resolutions. Compilations of back-
ground materials were assembled. Testimony was heard from
Executive Branch witnesses, from Members of Congress, from
practicing lawyers, and from other scholars. Learned articles
from law reviews and other journals were incorporated into the
FORD LIBRARY & MERTID
5
hearing records or separately published in the Congressional
Record.
Rather than plagiarize these materials and pretend to a
degree of erudition that I do not claim, and because I do
not believe that I can up with definitive answers where
others have failed, I will not attempt to duplicate or
synthesize what has already been written on the subject. I
am also guided in this respect by the oft-quoted observation
of Mr. Justice Holmes that "General propositions do not decide
concrete cases. The decision will depend on a judgment or
intuition more subtle than any articulate major premise."
The Committee and those who may read these hearings may
draw their own conclusions from the existing materials, the
most significant of which I shall now list for the record:
The Constitution of the United States of America--Analysis
and Interpretation, (Sen. Doc. No. 92-82, pp. 448-473; prepared
by the Congressional Research Service, Library of Congress)
Background Information on the Use of United States Armed Forces
in Foreign Countries (H. Rept. No. 127, 82d Cong., 1st sess.
FORD
of the House Foreign Affairs Committee, Feb. 20, 1951, and its
1970 revision by the Foreign Affairs Division, Legislative
Reference Service, Library of Congress); Powers of the President
to Send the Armed Forces Outside the United States (prepared by
the Executive Branch for the use of the Joint Committee of the
Senate Foreign Relations and Armed Services Committees, Feb. 28,
1951, Committee Print, 82d Cong., 1st sess.); The Powers of the
6
President as Commander-in-Chief of the Army and Navy of the
United States (H. Doc. No. 443, 84th Cong., 2d sess., June 14,
1956); U.S. Commitments To Foreign Powers, Hearings Before the
Senate Foreign Relations Committee on S. Res. 151 (90th Cong.,
1st sess., Aug. 16, 17, 21, 23, and Sept. 19, 1967); National
Commitments (S. Rept. No. 91-129, April 16, 1969, of the Senate
Foreign Relations Committee on S. Res. 85, 91st Cong., 1st
sess.); Documents Relating to the War Power of Congress, The
President's Authority as Commander-in-Chief and the War in
Indochina (Committee Print, 91st Cong., 2d sess., of the
Senate Foreign Relations Committee, July 1970); War Powers
(S. Rept. No, 220, June 14, 1973, of the Senate Foreign Re-
lations Committee on S, 440, 93d Cong., 1st sess. ) ; War Powers
Resolution of 1973 (H. Rept. No. 93-287, June 15, 1973, of
the House Foreign Affairs Committee on H. J. Res. 542, 93d
Cong., 1st sess.); War Powers (H. Rept. No. 93-547, Oct. 4,
1973, Conference Report on H.J. Res, 542, 93d Cong., 1st sess.) ;
and Vetoing House Joint Resolution 542, a Joint Resolution
Concerning the War Powers of Congress and the President, Message
from the President of the United States, October 24, 1973 (H.
Doc. No. 93-171, October 25, 1973, 93d Cong., 1st sess.).
See also the following hearings held by the House International
Relations Committee and the Senate Foreign Relations Committee
BERALD FORD LIMRATE
7
on War Powers: House--1970, 1971 and 1973; Senate 1971
and 1973.
however,
The Committee may find it helpful if I were to present
an overview of the attempts made by the Congress over the past
thirty years to deal with the war power issue. This period
has been characterized by some as one in which the Congress
initially surrendered its power to the President and sub-
sequently redressed the balance and regained its authority.
I for one, however, view the period as exemplifying a continuing
effort at compromise solutions which failed to reach any con-
clusive results. The outer limits of Presidential versus
Congressional authority are still, in my opinion, unresolved.
They are necessarily unresolved because these authorities
overlap and conflict, and were deliberately designed to do so
in accordance with the fundamental concept of separation of
powers. The President's power as Commander-in-Chief is no
less subject to checks and balances than his other Constitutional
powers. It is subject in appropriate cases to judicial review,
and, "as I shall later indicate, is also subject in certain areas
to legislative restraints.
Thirty years ago this summer, the Congress engaged in a
preliminary round of the so-called Great Debate. The issue was
whether the Armed Forces of this country could become involved,
BERALD FORD LIBRATE
8
without a declaration of war, in a war pursuant to a Resolution
of the United Nations Security Council under Article 42 of the
Charter, which was then pending United States ratification. The
forces at the disposal of the Security Council were those to be
made available by the Members of the United Nations in accordance
with special agreements negotiated between the Members and
the Security Council under Article 43 of the Charter, which
expressly provided that the agreements "shall be subject to
ratification by the signatory states in accordance with their
respective constitutional processes." The result of the de-
bate was the enactment by the Congress of section 6 of the
United Nations Participation Act of 1945 (Public Law 79-264)
"The President is authorized to negotiate a special
agreement or agreements with the Security Council
which shall be subject to the approval of the
Congress by appropriate Act or joint resolution,
providing for the numbers and types of armed forces,
their degree of readiness and general location, and
the nature of facilities and assistance, including
rights of passage, to be made available to the
Security Council on its call for the purpose of
maintaining international peace and security in
accordance with article 43 of said Charter. The
President shall not be deemed to require the
authorization of the Congress to make available
to the Security Council on its call in order to
take action under article 42 of said Charter and
pursuant to such special agreement or agreements
the armed forces, facilities, or assistance
provided for therein: Provided, That nothing
herein contained shall be construed as an au-
thorization to the President by the Congress to
make available to the Security Council for such
SERATO FORD LIBRARY
9
purpose armed forces, facilities, or assistance in
addition to the forces, facilities, and assistance
provided for in such special agreement or agree-
ments. (Emphasis supplied.)
The compromise embodied in section 6 of the United Nations
Participation Act of 1945 resolved undoubtedly the most ser-
ious challenge during the summer of 1945 to the Senate's advice
and consent to the ratification of the U.N. Charter.
In 1949, the President submitted the North Atlantic Treaty
to the Senate for advice and consent to ratification. Two of the
principal the issues raised by the Treaty language were the extent
of Ination's commitment and the respective roles of the President
and the Congress in meeting that commitment.
With respect to the commitment in Article 5 of the Treaty
that, in the event of an armed attack against one or more of the
Parties, each Party will assist the Party or Parties so attacked
by taking such action as it deems necessary "to restore and
maintain the security of the North Atlantic Area", the Committee
on Foreign Relations emphasized in its report that (Sen. Exec.
Rept. No. 8, 81st Cong., 1st sess., pp. 13-14) :
"this clearly does not commit any of the parties to
declare war. Depending upon the gravity of the
attack, there are numerous measures short of the use
of armed force which might be sufficient to deal with
the situation. Such measures could involve anything
from a diplomatic protest to the most severe forms
of pressure.
"In this connection, the committee calls particular
attention to the phrase 'such action as it deems necessary.
These words were included in article 5 to make absolutely
clear that each party remains free to exercise its
honest judgment in deciding upon the measures it
will take to help restore and maintain the security
of the North Atlantic area. The freedom of decision
BEAULE FORD
10
as to what action each party shall take in no way
reduces the importance of the commitment under-
taken. Action short of the use of armed force
might suffice, or total war with all our
resources might be necessary. Obviously article
5 carries with it an important and far-reaching
commitment for the United States; what we may do
to carry out that commitment, however, will depend
upon our own independent decision in each particular
instance reached in accordance with our own consti
tutional processes.
As for the second issue, the Committee Report recalled
that (Id. at p. 14) :
"During the hearings substantially the following
questions were repeatedly asked: In view of the
provision in article 5 that an attack against one
shall be considered an attack against all, would the
United States be obligated to react to an attack on
Paris or Copenhagen in the same way it would react
to an attack on New York City? In such an event
does the treaty give the President the power to take
any action, without specific congressional au-
thorization, which he could not take in the absence
of the treaty?"
Continuing, the Committee declared that (Ibid.) :
"The answer to both these questions is 'No.
1
...
"In the event any party to the treaty were attacked
the obligation of the United States Government would
be to decide upon and take forthwith the measures
it deemed necessary to restore and maintain the
security of the North Atlantic area. The measures
which would be necessary to accomplish that end
would depend upon a number of factors, including the
location, nature, scale, and significance of the
attack. The decision as to what action was necessary,
and the action itself, would of course have to be
taken in accordance with established constitutional
procedures as the treaty in article 11 expressly
requires.
"Article 5 records what is a fact, namely, that an
GERALD FORD
armed attack within the meaning of the treaty would
11
in the present-day world constitute an attack upon
the entire community comprising the parties to the
treaty, including the United States. Accordingly,
the President and the Congress, within their
sphere of assigned constitutional responsibilities,
would be expected to take all action necessary and
appropriate to protect the United States against the
consequences and dangers of an armed attack committed
against any party to the Treaty. The committee
does not believe it appropriate in this report to
undertake to define the authority of the President
to use the armed forces. Nothing in the treaty,
however, including the provision that an attack
against one shall be considered an attack against
all, increases or decreases the constitutional
powers of either the President or the Congress or
changes the relationship between them." (Emphasis
supplied.)
In June 1950, in response to the attack by the North
Koreans upon the forces of the Republic of Korea, the U.N.
Security Council acted under Article 39 of the Charter to call
upon "all Members to render every assistance to the United
Nations in the execution of this resolution and to refrain
from giving assistance to the North Korean authorities" and
to recommend that "the Members of the United Nations furnish
such assistance to the Republic of Korea as may be necessary
to repe1 the armed attack and to restore international peace
and security in the area. " The political and Constitutional
concerns expressed in the Congress during 1945 which resulted
in the compromise of section 6 of the United Nations Participation
Act of 1945 were apparently disregarded by the President when
he ordered U.S. forces into combat action in Korea in response
to the Security Council's request, since the section was
FORD LiBRARY
12
technically not applicable to the June 1950 Security Council's
Resolution. The President's "failure to respect the spirit
of the 1945 compromise" was subsequently objected to by Senator
Taft at the commencement of the "Great Debate" on January 5,
1951 (Congressional Record, vol. 97, p. 54 at pp. 57, 65),
although the well-known State Department legal memorandum of
July 3, 1950, had quoted speeches by Senators Wiley and
Austin on July 26 and 27, 1945 (i.e., preceding the enactment
of sec. 6) declaring that the President's obligation to faithfully
execute the laws included the U.N. Charter as a whole and that
his constitutional power is in no manner "impaired" by article 43
of the Charter (American Foreign Policy 1950-1955, Basic Documents,
Dept. of State pub. 6446, Dec. 1957, Vol. II, p. 2542 at pp.
2547-2548).
On September 9, 1950, the President announced to the press
that he had that day "approved substantial increases in the
strength of United States forces to be stationed in Western
Europe in the interest of the defense of that area" and that
the "extent of these increases and the timing thereof will
be worked out in close coordination with our North Atlantic
Treaty partners." (Ibid., Vol. I, p. 1504). On January 8,
1951, at the conclusion of the "State of the Union" address,
Senator Wherry introduced S. Res. 8, 82d Congress: "Resolved,
GERALD FORD LIBRARD
13
That it is the sense of the Senate, that no Ground Forces
of the United States should be assigned to duty in the
European area for the purposes of the North Atlantic Treaty
pending the formulation of a policy with respect thereto
by the Congress." (Congressional Record, Vol. 97, p. 94).
The Wherry Resolution was referred to a joint committee
of the Foreign Relations and Armed Services Committees
for hearings which became the focal point of the "Great
Debate". (Assignment of Ground Fdrces of the United States
to Duty in the European Area, Hearings Before the Senate
Foreign Relations and Armed Services Committees, Feb. 1, 15,
16, 19, 20, 21, 22, 23, 24, 26, 27, and 28, 1951). During
his testimony on the Resolution, Secretary of State Acheson
was asked to "comment as to the power of the Executive to send
troops to Europe". In response, Secretary Acheson filed for
the record what he termed "à very substantial brief in that
regard," which discussed the matter under the following
headings:
"A. That the President's power to send the
Armed Forces outside the country is not
dependent on congressional authority
has been repeatedly emphasized by numerous
publicists and constitutional authorities.
"B. It is important to examine some of the
purposes for which the President as
BERALD FORD DISTRAM
14
Commander-in-Chief has dispatched American
troops abroad. In many instances, of
course, the Armed Forces have been used
to protect specific American lives and
property. In other cases, however, United
States forces have been used in the broad
interests of American foreign policy.
"C. In other cases United States forces have
been used to implement provisions of
treaties to which the United States was
a party. It is the President's duty under
the Constitution to take care that the laws
are faithfully executed. That this applies
to treaties (which are a part of the supreme
law of the land) as well as to statutes is
unquestioned. As stated by ex-President
William H. Taft: 'The duty that the
President has to take care that the laws be
faithfully executed applies not only to the
statutory enactments of Congress but also
to treaties (The Boundaries Between
the Executive, the Legislative, and the
Judicial Branches of the Government, 25 Yale
Law Journal 613).
"D. Not only has the President the authority
to use the Armed Forces in carrying out
the broad foreign policy of the United
States and implementing treaties, but it
is equally clear that this authority may
not be interfered with by the Congress in
the exercise of powers which it has under
the Constitution. (Ibid., p. 77 at pp.
88-93).
The "Great Debate" concluded on April 4, 1951, with the
adoption by the Senate of S. Res. 99 by a vote of 69-21
(and, by a vote of 45-41, of a slightly different resolution
which sought the concurrence of the House of Reprentatives,
S. Con. Res. 18; Congressional Record, Vol. 97, pp. 3282-
83, 3293-94). S. Res. 99, 82d Congress, approved the
FORD
BERALD
LIBRARY
15
President's designation of General Eisenhower as SACEUR and
his action "in placing Armed Forces of the United States in
Europe under his command" and, inter alia, resolved that:
"6. it is the sense of the Senate that, in
the interests of sound constitutional processes,
and of national unity and understanding, con-
gressional approval should be obtained of any
policy requiring the assignment of American
troops abroad when such assignment is in imple-
mentation of article 3 of the North Atlantic
Treaty; and the Senate hereby approves the pre-
sent plans of the President and the Joint Chiefs
of Staff to send four additional divisions of
ground forces to Western Europe, but it is the
sense of the Senate that no ground troops in
addition to such four divisions should be sent
to Western Europe in implementation of article
3 of the North Atlantic Treaty without further
congressional approval;" (Emphasis supplied).
The kindred formulation of paragraph 6 of S. Res. 99 with
the compromise contained 6 years earlier in section 6 of the
United Nations Participation Act of 1945 is striking. The joint
committee had recommended on March 14, 1951, the text of S. Res.
99 which did not contain in paragraph 6 the final sense of the
Senate clause commencing with the word "but" (S. Rept. No. 175,
March 14, 1951, 82d Cong., 1st sess., p. 3). The joint committee
report commented:
"Paragraph 6 is limited in scope. It refers
only to ground troops sent abroad for the
purpose of implementing article 3 of the
North Atlantic Treaty. It does not call for
congressional approval to send naval or air
forces abroad. It does not apply to American
troops in occupied areas or to armed forces
sent to Europe under article 5 of the North
Atlantic Treaty. Nor is it concerned with
armed forces which the President might send
abroad under his constitutional powers as
Commander-in-Chief of the Army and Navy.
FORD LINELAY
16
"The term 'congressional approval' as used in para-
graph 6 is subject to different interpretations.
On the one hand, some members of the joint
committee expressed the view that congressional
approval could only be given by formal legislation.
Others believed that both the letter and the
spirit of paragraph 6 might be met, in certain cir-
cumstances, as a result of consultation by the
administration with, and the approval of, the
appropriate committees of the Congress. In any
event, it should be noted that the resolution
expresses the sense of the Senate that con-
gressional approval should be given; it is not
a legislative mandate.
*
*
"One of the most perplexing problems that the
joint committee faced related to the con-
stitutional authority of the President to send
American ground forces abroad in time of peace
to serve as part of an integrated defense
force
"With the exact line of authority between the
President and the Congress in doubt for the
past 160 years, the committee did not endeavor
to resolve this issue definitively at this
time
"In considering the power of the President
to send American armed forces abroad, the
committee was aware that his constitutional
authority to use our armed forces abroad
would be the same whether applied to ground,
air, or naval forces. It is also understood
that General Eisenhower will command all units
-land, air, or sea--within his jurisdiction.
The committee was primarily concerned, however,
with the policy with respect to the assignment
of American ground forces to Europe because of
the numbers of men involved and the concern on
the part of some individuals that sending
additional ground troops now might be but a first
step in sending larger contingents to Europe.
(Emphasis supplied; ibid., pp. 8, 18-19).
FORD LIBRARY
17
What was the net result of the "Great Debate" of 1951?
According to the Foreign Affairs Division, Legislative Refer-
ence Service of the Library of Congress (1970 Revision of
Background Information on the Use of United States Armed
Forces in Foreign Countries, p. 22), it was "something of a
draw":
"Since the Troops-to-Europe resolution was
adopted, the President has not raised the issue
of further ground troops for Europe beyond the
additional four divisions specified. There has
thus been no direct test of whether the 'further
congressional approval' specified in the resolu-
tion would in fact have been sought. The 'Great
Debate' seems to have resulted in something of
a draw between the President and the Congress
--an occurrence itself which was unusual in a
long period of generally declining congressional
power on the issue vis-a-vis the President."
I should also add my personal observation that in retrospect the
"Great Debate" appears. to have been an academic exercise.
Regardless of whether the President had the power, without
Congressional assent, to deploy the armed forces to Europe,
it is apparent that they could not have been effectively deployed
for any substantial length of time without Congressional enact-
ment of specific construction authorizations and appropriations
for the facilities required by them in Europe.
The next major occasions for Congressional consideration
of the war power issue were the enactments of the Formosa,
Middle East, Cuban, and Gulf of Tonkin Resolutions. An apt
summary of the position taken by the Congress as to the language
BERALD FORD LIBRATE
18
of these Resolutions may be found in the Report of the Inter-
national Relations Committee on the Middle East Resolution
(H. Rept. No. 2, 85th Cong., 1st sess., p. 7) :
"The division of that power as between the
executive branch and the legislative branch
is not pertinent here. As was stated in the
committee report on the Formosa resolution:
"The committee considered the relation of
the authority granted by the resolution
and the powers assigned to the President
by the Constitution. Its conclusion was
that the resolution in this form, while
making it clear that the people of the
United States stand behind the President,
does not enter the field of controversy as
to the respective limitations of power in
the executive and legislative branches.
Acting together, there can be no doubt
that all the constitutional powers necessary
to meet the situation are present (H. Rept.
No. 4, 84th Cong., 1st sess. , p. 4).
"This resolution does not detract from or enlarge
the constitutional power and authority of the President
of the United States as Commander in Chief, and the
language used in the resolution does not do so.
"Likewise, the resolution does not delegate or diminish
in any way the power and authority of the Congress of
the United States to declare war, and the language
used in the resolution does not do SO. "
The "Great Debate" was then renewed this past decade as the
scale of United States involvement in Indochina intensified.
While much of the debate both in the Congress and in other
forums - focused on questions of policy, the Constitutional
issues were also prominent. An extensive collection of articles
and addresses on the subject is contained in the three volume
series sponsored by the American Society of International Law,
GERALD FORD LIBRARY
19
entitled "The Vietnam War and International Law.' Among
those included are the Department of State's Memorandum
of March 4, 1966 on the Legality of United States
Participation in the Defense of Viet-Nam (Vol. I, pp. 583-603)
and the May 1970 address by Mr. Justice Rehnquist-then Assistant
Attorney General, Office of Legal Counsel, Department of
Justice--on the Constitutional aspects of the Cambodian
incursion of 1970. (Vol. III, pp. 163-174).
As the debate intensified, two actions were taken by
the Congress in 1969. First, the Senate on June 25, 1969,
adopted S. Res. 85, 91st Congress which resolved that:
"(1) a national commitment for the purpose
of this resolution means the use of the
Armed Forces of the United States on foreign
territory, or a promise to assist a foreign
country, government, or people by the use of
the Armed Forces or financial resources of the
United States, either immediately or upon the
happening of certain events, and
(2) it is the sense of the Senate that a
national. commitment by the United States re-
sults only from affirmative action taken by
the executive and legislative branches of
the United States Government by means of a
treaty, statute, or concurrent resolution of
both Houses of Congress specifically providing
for such commitment.
In my view, the National Commitment Resolution is defective in
several respects as a statement of law. First, it is clearly
BRALD LIMITARY ? FORD
20
inaccurate insofar as it implies that the President does
not have independent authority under the Constitution to
"use" the armed forces on foreign territory. Certainly,
if our armed forces abroad are attacked, they may defend
themselves in accordance with Presidential directives without
awaiting adoption of a statute or concurrent resolution;
similarly, no such Congressional action is required as a
predicate to Presidential use of the armed forces on
foreign territory if the United States itself is attacked.
Second, it is undoubtedly within the President's authority
to make commitments of future financial assistance, conditioned
upon the subsequent availability of appropriations for the purpose.
Third, it should be noted that while concurrent resolutions are
indicative of Congressional views they are not the law of the
land and cannot therefore confer upon the President any authority
that he does not already have.
The second major Congressional action in this sphere was
the enactment of the following prohibition in the Department
of Defense Appropriation Act for fiscal year 1970 (P.L. 91-
171, sec. 643) :
"In line with the expressed intention of the
President of the United States, none of the
funds appropriated by this Act shall be used
to finance the introduction of American ground
combat troops into Laos or Thailand."
GERALD ? FORD
21
This prohibition was re-enacted in the subsequent Defense
Appropriation Acts for fiscal years 1971, 1972 and 1973
(P.L. 91-668, sec. 843; P.L. 92-204, sec. 742; and P..L. 92-570,
sec. 741). It was replaced in the Department of Defense Appropria-
tion Act, 1974 (P.L. 93-238, sec. 741) by the following prohi-
bition:
"None of the funds herein appropriated may be
obligated or expended after August 15, 1973,
to finance directly or indirectly combat
activities by United States military forces
in or over or from off the shores of North
Vietnam, South Vietnam, Laos, or Cambodia."
For enactments similar to this latter one, see also P.L. 93-50,
sec. 307; P.L. 93-52, sec. 108; P.L. 93-126, sec. 13; P.L. 93-
189, sec. 31; and P.L. 93-437, sec. 839.
No objection on Constitutional grounds was made by the
President to this latter current series of prohibitions (cf
Veto Message of June 27, 1973 on the Second Supplemental
Appropriation Act of 1973, H. Doc. No. 93-125, 93d Cong., 1st
sess.), although such objections were voiced to earlier proposed
amendments aimed at reducing and terminating the U.S. presence
in Indochina which had failed of adoption. A possible critical
distinction between the White House position on those earlier
riders and the ones which did become law is that the former
preceded the January 27, 1973 Agreement on Ending the War and
Restoring Peace in Vietnam and the subsequent withdrawal
of GERAID FORD LIBRARY
American forces from the country.
On the other hand, the President had made no constitutional
complaint in 1969 against the prohibition on the introduction of
22
ground combat troops into Laos or Thailand, and, as I recall,
that amendment was a compromise text approved in advance by
the White House. With due respect to the then White House
Counsel and Attorney General whom I presume advised the
President on that amendment, it was in my view unconstitutional.
If it be assumed that our participation in the on-going hos-
tilities at that time was lawful under United States law, the
amendment was an impermissible attempt to control the tactical
direction of the armed forces in conflict. By way of analogy,
would anyone seriously contend that during World War II it
would have been constitutionally valid to have prohibited the
landing in North Africa or the deployment of troops to
Australia?
Before turning to the War Powers Resolution, I should
also like to call attention to section 847 of the Department
of Defense Appropriation Act, 1975 (P.L. 93-437), which states
as follows:
"None of the funds appropriated by this Act
shall be available for use after May 31, 1975,
to support United States military forces
stationed or otherwise assigned to duty
outside the United States in any number
greater than 452, 500, not including military
personnel assigned to duty aboard United
States naval vessels."
One will look in vain for Constitutional objections, notwith-
standing the "substantial brief & to use Secretary Acheson's
GERALD FORD LIBRARY
23
characterization--submitted by the Truman Administration during
the "Great Debate" of 1951, in the legislative history of this
legislative ceiling under which the Department of Defense has
now been operating for over three months now. (S. Rept. No.
93-1104, August 16, 1974, of the Senate Appropriations Committee,
93d Cong., 2d sess., pp. 11-15.)
I think it also noteworthy that when President Ford
approved the Department of Defense Appropriation Act, 1975,
he declared:
"
Thus, as I sign such a bill for the first
time as President, I want to renew my pledge to
build a new partnership between the executive
and legislative branches of our Government,
a partnership based on close consultation,
compromise of differences, and a high regard
for the constitutional duties and powers of
both branches to work for the common good and
security of our Nation." (Emphasis supplied;
Weekly Compilation of President Documents,
Vol. 10, No. 41, p, 1250.)
Coming now to the War Powers Resolution, certain features
thereof warrant highlighting for the purposes of this hearing.
First, it does not deal with the subject matter of the "Great
Debate" of 1951, i.e., the deployment of troops in support of
the broad purposes of United States foreign policy; rather it
is directed at issues left unresolved during the ratification of
the North Atlantic and other defense treaties, namely, the
introduction of the armed forces into hostilities or into
situations where imminent involvement into hostilities is clearly
FORD 05 LIBRARY
24
indicated. But even in this respect, the Resolution reiterates
the earlier compromises that "Nothing in this joint resolution--
is intended to alter the constitutional authority of the Congress
or of the President " (Sec. 8(d)). Second, although sec-
tion 2 (c) seemingly is a comprehensive definition of the
President's constitutional authority, the legislative history
of the Resolution demonstrates that it is not so intended.
Third, the basic structure of the Resolution is a reporting
requirement designed to assure that the Congress has an
opportunity to participate in a collective judgment with
respect to the use of the war power. Fourth, the Resolution
resolves the dispute which flowered during the Indochina
War as to whether the Congress could validly authorize United
States involvement in hostilities without a declaration of war
(Secs. 5 (b) and 8(a)). Fifth, and of minor moment, the Resolution
contradicts the earlier National Commitment Resolution (Sec.
8(a)(2)). As for the constitutionality of the Resolution, I
refer the Committee to President Nixon's Veto Message cited
previously in this Statement.
As the Committee knows, there have been 4 reports to the
Congress under the War Powers Resolution since its enactment.
They are dated April 4, 1975, April 12, 1975, April 30, 1975,
and May 15, 1975.
BERALD FORD IMPORT
25
The first concerned the evacuation of refugees from
Danang and other seaports in South Vietnam to safer areas in
South Vietnam. As indicated in that report, the circumstances
of the incident involved section 4 (a) (2) of the Resolution
and the action undertaken by our personnel was under the
combined authority of the President's constitutional powers
and pursuant to the Foreign Assistance Act of 1961, as amended.
The succeeding three events involved solely the President's
constitutional powers. The April 12th action was the evacuation
of personnel from Cambodia; the April 30th action was the
evacuation of personnel from Vietnam; and the May 15th incident
was the recapture of the Mayaguez and the rescue of its crew.
A number of legal questions have been raised concerning
these 4 reports. These questions have been addressed in letters
jointly signed by the Legal Adviser of the Department of State
and the former General Counsel of the Department of Defense to
Chairman Zablocki of the House Subcommittee on International
Security and Scientific Affairs and Senator JavitA. Rather
than
unduly lengthen my Statement by repeating their contents, I am
appending them to the Statement for incorporation in the Record
of these hearings.
Mr. Chairman, these remarks conclude my prepared testimony.
Mr. Abramowitz is with me to provide. answers to such factual
questions as you may have concerning these War Power Resolution
reports.
GERALD FORD LIBRATY
DEPARTMENT OF STATE
Washington, D.C. 20520
3 June 1975
The Nonorable Clement J. Zablocki
Chairman, Subcommittee on International
Security and Scientific Affairs
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
We are writing in response to your letters to
us of May 9, 1975, requesting amplification of our
testimony before your Subcommittee on May 7.
Enclosed is a memorandum which responds to
questions asked by members of the Subcommittee during
our testimony. Although this memorandum may also
answer a few of the questions raised in your recent
letter, we shall also address each of your questions
individually.
1. Your first question inquires as to our
working definition of the word "hostilities" in
section 4 (a) (1) of the War Powers Resolution. We
are, of course, aware of the comments made by the
Committee on page 7 of H. Report 93-287, wherein the
Committee attempted a general definition of that word,
which had its origin in the Senate version of the
Resolution. Even as so defined, however, there is
of necessity a large measure of judgment which is
required. We note in this connection that even when
measured against certain past events, differing
views as to when hostilities commence were expressed
during the Hearings before the Committee in 1973.
See for example the colloquies between Representatives
Bingham and DuPont and Senator Javits on pages 16-17
and 21-22 of the Hearings. You will also recall
Professor Bickel's response to Mr. DuPont, with
respect to the definition of "hostilities" that:
GERALD FORD LIBRARY
-2-
"There is no way in which one can define
that term other than a good faith under-
standing of it and the assumption that in
the future Presidents will act in good
faith to discharge their duty to execute
the law. " (Hearings, at 185)
Whether "imminent involvement in hostilities"
is clearly indicated by the circumstances is similarly,
in our view, defináble in a meaningful way only in the
context of an actual set of facts. To speculate about
hypothetical situations is possible but would not seem
desirable. Reasonable men might well differ as to the
implications to be drawn from any such hypothotical
situation. In this connection, you will no doubt
recall the uncertainty of some members of the Congress
as to whether the military alert of October 24, 1973
triggered the reporting provisions of the War Powers
Resolution, and the conclusion expressed by you on
the Floor on April 9, 1974 (Congressional Record, at
H. 2726) that hostilities had not been imminent and
that a report had not been required.
Subject to the foregoing caveats, we turn to
our working definitions of these terms. As applied
in the first three war powers reports, "hostilities"
was used to mean a situation in which units of the
U.S. armed forces are actively engaged in exchanges
of fire with opposing units of hostile forces, and
"imminent hostilities" was considered to mean a
situation in which there is a serious risk from
hostile fire to the safety of United States forces.
In our view, neither term necessarily encompasses
irregular or infrequent violence which may occur in
a particular area.
You also ask which of the first three war
powers reports referred to situations involving
hostilities. In our view, the April 30, 1975
report refers to a situation where at least one
incident of hostilities existed (see point 5
below); and in the Cambodia evacuation referred
to in the April 12, 1975 report, an imminent
GERALD R. FORD LIBRARY
-3-
involvement in hostilities may have existed (as to
the factors that would enable one to reach it
conclusion on whether hostilities did in fact exist,
see point 4 below). The April 4, 1975 report
concerning the Danang evacuation, however, does not
refer to a situation where hostilities existed.
2. Your letter uses the term, "a Section 1
report." As WC read the War Powers Resolution,
section 1 does not call for different types of reports
depending on whether U.S. armed forces are introduced
under subparagraphs (1), (2) or (3) of section 1 (a).
Instead, section 4 seems to require only that "a
report" be filed in any of the subparagraph (1), (2)
or (3) situations, and that such report merely contain
the information specified in subparagraphs (7), (B)
and (C).
It seems that the real thrust of the question is
why the President in his April 30, 1975 report referred
to section 1 in general, and not to any particular
subparagraphs in that section. We presume that the
President did so because the events giving rise to
that report did not seem to be limited to just one of
the three subparagraphs in section 1 (a).
Thus, although the events as known at that time
indicated that hostilities may have existed between
U.S. and communist forces, U.S. forces "equipped for
combat" were also introduced in the "territory, air-
space or waters" of South Victnam -- the situation
apparently provided for in section 1 (a) (2).
Furthermore, since the operation had terminated
by the time the report was prepared, the question of
possible congressional action under section 5 of the
Resolution was moot; thus, a specific reference to
4 (a) (1) was not needed to call attention to possible
action under section 5.
3. Your letter refers to the President's
authority as Commander-in-Chief. The three war
powers reports you referred to all cite two sources
of authority: Article II, Section 1 of the Constitution
FORD & LIBRARY 03
-1-
which provides that the "executive Power shall be
vested" in the President, and the Commander-in-Chief
clause (Article IL, Section 2).
With respect to the Commander-in-Chief clause,
we do not believe that any single definitional
sentence could clearly encompass every aspect of the
Commander-in-Chief authority. This authority would
include such diverse things as the power to make
armistices, to negotiate and conclude cease-fires,
to effect deployments of the armed forces, to order
the occupation of surrendered territory in time of
war, to protect U.S. embassies and legations, to
defend the United States against attack, to suppress
civil insurrection, and the like.
With respect to the specific question of
protecting and rescuing U.S. citizens, the enclosed
memorandum contains a discussion of both court
opinions and historical precedents on this subject.
4. You refer to a portion of the April 12,
1975 report on the Cambodia evacuation which notes that
the "last elements of the force to leave received
hostile recoilless rifle firc." Whether or not this
rifle fire constituted hostilities would seem to us to
depend upon the nature of the source of this rifle
fire -- i.c., whether it came from a single individual
or from a battalion of troops, the intensity of the
fire, the proximity of hostile weapons and troops to
the helicopter landing zone, and other evidence that
might indicate an intent and ability to confront U.S.
forces in armed combat. Our information concerning
the source of this rifle fire is not sufficiently
detailed to enable one to draw a conclusion as to
whether this clearly amounted to "hostilities."
5. Your letter notes that the April 30, 1975
report relating to the Saigon evacuation indicates
(a) that U.S. fighter aircraft "suppressed North
Vietnamese anti-aircraft artillery firing on evacua-
tion helicopters," and (b) that U.S. ground forces
returned fire during the course of the evacuation.
The first situation on its face constituted "hostilities."
GERALD FORD LIBRARY
-5-
The evidence concerning the second situation is
inconclusive as to whether the fire was of
sufficient intensity so as to be part of a purpose-
ful confrontation by opposing military forces; but in
vicw of the actions of the U.S. fighter aircraft, a
characterization of the second situation may be
academic. In any event, as discussed under point
number 2 above, there were other circumstances
present in the evacuation operation which precluded
a conclusion that section 1 (a) (1) alone, and no
other provision of section 4, pertained to the
operation.
6. The two marines who were killed at Tan Son
Nhut airport the day before U.S. forces entered South
Vietnamese airspace were not a part of the evacuation
force. They were members of the marine guard at the
American Embassy and were, at the time of their death,
on regular duty in the compound of the Defense Attache
Office which was located at the airport. As you know,
an evacuation effort not involving our combat troops
had been conducted for some time prior to the introduc-
tion of the evacuation forces. The fact that those
marines, rather than civilian members of the Embassy,
were killed was fortuitous and not a consequence of
the introduction of the evacuation force.
7. The loss of the Navy helicopter was not
directly related to the evacuation operation. Our
understanding is that the helicopter was at the time,
in accordance with standard operating procedures,
involved in an ordinary search and rescue holding
pattern near its home aircraft carrier. The purpose
of its mission was to provide assistance to aircraft
and helicopters that were participating in the
evacuation operation, should such assistance become
necessary. The helicopter crashed in the immediate
vicinity of the carrier. The cause of the crash is
not known, and the bodies of the crew were not
recovered.
8. Your letter notes that the first three war
"
powers reports contain the phrase "taking note of
You inquire whether this suggests anything other than a
GERALD R. FORD LIBRARY
-6-
full binding legal responsibility upon the President.
This phrase connotes an acknowledgement that the
report is being filed in accordance with section 4
of the War Powers Resolution. No constitutional
challenge to the appropriateness of the report called
for by section 4 was intended. As you are aware,
President Nixon in his veto message of October 24,
1973 indicated that portions of the War Powers
Resolution, including sections 5 (b) and 5 (c), are
unconstitutional. No such position was expressed as
to section 4.
We hope we have covered each of the points
raised not only in your letter, but also during our
testimony before the Subcommittee on May 7. Please
accept again our appreciation for the Subcommittee's
careful inquiry into these very complex legal and
constitutional questions;
Sincerely,
Nonse
Monroe Leigh
Martin R. Ho finam
Legal Adviser
General Counsel
Department of State
Department of Defense
Enclosure:
Memorandum.
R. FORD LIBRARY
THE PRESIDENT'S AUTHORIT
TO USE THE ARMED FORCES TO EVACUATE
U.S. CITIZENS AND FOREIGN 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 national:
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 memorondum.
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 pro-
tect 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.
***
R. FORD LIBRARY
The question whether it was the duty of: the
president to interpose for the protection
of the citizens at Greytown against an
irresponsible and maranding community
that had established itself there, was
il 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 Ingraliam,
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 blood-
shed, 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 correspondence 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?
&
FORD
SEAL
LIBRANT
See also the Slaughterhouse Cases, 83 ..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 0.1° within the jurisdiction of a foreign government."
The nature and basis of the President's authority
was succinctly stated by President Taft in 1916, followings
the termination of his term in office:
He Ithe 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 aggres-
sion
" (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 to 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 10 the
Continuing Appropriations Resolution for Fiscal Year 1974
----
one of the carliest fund limitation provisions -- the
House Minority Leader inquired whether the amend-
ment would affect the President's ability to protect
"the lives of American civilians" in Indochina. Congress-
man Addabbo responded as follows:
BERALE n. FORD LIBRARY
The !!! theman from Nichigan is speaking
of pro :tive action. I am speal Ig of
direct combat action by our forces. We
are not: amending the Constitution here
this afternoon; we are taking a con-
gressional prerogative. The President
still has, as Commander in Chief, cer-
tain 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 that I think J. said
we might
use retaliatory fire was in
the event WC were trying to rescue
Americans. I think you accept that as
being -- I do --- a world wide authority
when we get into that type of crisis. 11
Chairman Fulbright then said that he recognized the
President had such authority to rescue Americans, though he
also suggested 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
STATE
LIBRARY
executive branch believed, should not be subject 1.0
potential disputes over interpretation of the Con-
stitution or of the various statutes relating to
Indochina.
A second reason involved the intimate relation-
ship between evacuating Victnamese nationals and
evacuating U.S. citizens. IL 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 reseue 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 clarifica
tion of Congress Was sought in the President's address to
Congress on April 10, 1975.
FORD - LIBRARY 03
APPENDIX A
Instances where U.S. Armed Forces Have
Been Directed to Protect U.S. 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 USS
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.
1. In 1900, approximately 2,500 U.S. troops were
sent to join an international military force organized
to protect foreign citizens and logations 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 USS Non were landed to
protect the American Consulate. Additional forces were
sent from the USS 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 il 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.
BERALD R. FORD LIBRARY
6.
w
local disturbances bro' out in Nicaragua
in 1926, th. government of that country requested that
American forces undertake to protect the lives and pro-
perty 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 pro-
perty 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 1961, more than 1000 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 il four
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,
2711 Americans and 1726 other foreign nationals
were evacuated.
For additional examples, see "Authority of the
President to Repel the Attack in Korca", 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, 82 Congress, 1st session.
GERALE FORD LIBRARY
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
WASHINGTON, D. C. 20301
23 JUN 1975
Honorable Jacob K. Javits
United States Senate
Washington, D.C. 20510
Dear Senator Javits:
This letter responds to your notes of June 4, 1975 to Secretary
Schlesinger and myself forwarding a copy of your recent Statement
before Congressman Zablocki's Subcommittee of the House Inter-
national Relations Committee with respect to the functioning of the
War Powers Resolution. We welcome your invitation to comment
on your testimony.
Many of the issues raised by you were addressed by me and by
Mr. Monroe Leigh, the State Department Legal Adviser, in our
own testimony before that Subcommittee. Our testimony was also
supplemented by a subsequent joint letter to Congressman Zablocki,
responding to a number of questions asked by him of us at the
conclusion of our testimony. A copy of that joint letter is enclosed
for your convenience.
As you note in your Statement, a major portion of your remarks is
devoted to the problem of consultation. In large measure, you
criticize the substance of the consultations as well as the procedure
followed. Not having been present during those consultations, it
would be inappropriate for me to comment on the adequacy thereof.
With respect to the procedures for consultation, it is my view that
the Congressional decision not to specify such procedures in section
3 of the War Powers Resolution was eminently sound. It correctly
recognizes that circumstances may be such as to preclude the
possibility of holding the formal meetings of the Foreign Relations
and International Relations Committees which your statement
contemplates.
Insofar as concerns the format and mode of delivery of the four
initial reports under the War Powers Resolution, I cannot agree
SERVICE R. FORD TIBRARY
2
with your conclusion that they are "questionable in law". In this
respect, your Statement first complains that the reports are cast
in the form of a personal letter to the Speaker of the House and
the President Pro Tempore of the Senate. As you know, however
section 4(a) of the War Powers Resolution specifically requires
that the reports be submitted to the Speaker and the President
Pro Tempore. Further, these four initial reports follow the
customary format of other executive communications to the
Speaker and the President Pro Tempore; see, for example,
House Document No. 94-142, printing a letter dated May 9, 1975
from the President to the Speaker, complying with the notification
requirement of section 652 of the Foreign Assistance Act of 1961,
as amended. As to the objection that reports were delivered to the
residences of the Speaker and the President Pro Tempore, rather
than to their official offices at the Capitol, it should be observed
that (1) the timing for submittal of:a report may be such that the
expiration of the statutory 48-hour period occurs at a time of day
or night when the offices at the Capitol of these officials are closed,
and (2) the full 48 hours (or most of that period) may be required
for the collection of available information to be included in the re-
port and for the preparation of the report. In this connection, you
will recall that, in the case of the first report, the 48-hour period
began to run at 0400 a. m. EDT on April 3, 1975; the President was
in California; the report was telegraphed at 2149 p.m. EDT on
April 4, 1975; and, further, that the Congress was not in session.
Furthermore, a record copy of each notification was provided to cach
House of the Congress as a formal matter. See the following pages
in the Congressional Record (daily ed.) for acknowledgment of the
receipt of these formal notifications: S5279-S5280 and H2465,
April 7, 1975; S5872 and H2706-H2707, April 14, 1975; S7297 and
H3592, May 1, 1975; S8268 and H4080-H4081, May 15, 1975.
As to your observation that the reports were "brief to the point of
being in minimal compliance with the content requirements set forth
in the law", I can only note again that circumstances may be such
that complete information is not available within 48 hours. You will
no doubt recall in this connection the uncertainty which persisted for
several days as to the extent of the casualties incurred in connection
with the Mayaguez. Moreover, I cannot accept the inference made
SEAL FORD LIBRARY
3
by you that these reports "do not suggest a readiness within the
Executive Branch to provide the full and timely disclosure of
relevant facts and judgments
11 It is my understanding that
we have honored every reqüest from Congressional committees for
amplifying information.
On the afternoon of May 14, 1975, prior to the initiation of the assault
on Koah Tang, the Assistant Secretary of Defense (Legislative Affairs)
and a representative of the Chairman, Joint Chiefs of Staff, briefed
the Chairmen of the Senate and House Armed Services Committees,
as well as the Senate Foreign Relations Committee in closed session.
I understand you participated in that briefing session. On May 15, 1975
when the President made his report under the War Powers Resolution,
these men briefed the House International Relations Committee and
the House Defense Appropriations Subcommittee.
I am enclosing a copy of a detailed chronology of the Mayaguez
incident. With respect to the factual allegations contained in your
testimony on the Mayaguez, I respectfully submit that many of these
allegations are in error. In particular,
- The amphibious assault by the Marines was made on the
right island. Koah Tang was within weapons range of
Mayaguez and would have required neutralization by
assault or otherwise even if we were convinced that
the crew was not on the island. In fact, we believed
that it was likely that the crew was on the ship or
the island or the mainland or parts of all three places.
- The assault on Koah Tang began not 20 minutes after the
release of the crew was made known, as the testimony
suggests, but with the arrival of assault helicopters
in the airspace off the shore of Koah Tang at about
7:09 p.m. EDT, 14 May, long before the return of the
crew to US control which took place at about 11:15 p.m.
on that date.
- The insertion of the first assault wave was completed
at 8:15 p.m. EDT, 14 May, while the boat containing
the Mayaguez crew was not spotted until 10:23 p.m.
As a practical matter, when a helicopter crashed on
the beach at Koah Tang at 7:45 p.m., we were irrevocably
committed.
- US losses were 18-KIA/MIA.
R. FORD LIBRARY
3
by you that these reports "do not suggest a readiness within the
Executive Branch to provide the full and timely disclosure of
relevant facts and judgments
" It is my understanding that
we have honored every reqüest from Congressional committees for
amplifying information.
On the afternoon of May 14, 1975, prior to the initiation of the assault
on Koah Tang, the Assistant Secretary of Defense (Legislative Affairs)
and a representative of the Chairman, Joint Chiefs of Staff, briefed
the Chairmen of the Senate and House Armed Services Committees,
as well as the Senate Foreign Relations Committee in closed session.
I understand you participated in that briefing session. On May 15, 1975
when the President made his report under the War Powers Resolutions
these men briefed the House International Relations Committee and
the House Defense Appropriations Subcommittee.
I am enclosing a copy of a detailed chronology of the Mayaguez
incident. With respect to the factual allegations contained in your
testimony on the Mayaguez, I respectfully submit that many of these
allegations are in error. In particular,
- The amphibious assault by the Marines was made on the
right island. Koah Tang was within weapons range of
Mayaguez and would have required neutralization by
assault or otherwise even if we were convinced that
the crew was not on the island. In fact, we believed
that it was likely that the crew was on the ship or
the island or the mainland or parts of all three places.
- The assault on Koah Tang began not 20 minutes after the
release of the crew was made known, as the testimony
suggests, but with the arrival of assault helicopters
in the airspace off the shore of Koah Tang at about
7:09 p.m. EDT, 14 May, long before the return of the
crew to US control which took place at about 11:15 p.m.
on that date.
- The insertion of the first assault wave was completed
at 8:15 p.m. EDT, 14 May, while the boat containing
the Mayaguez crew was not spotted until 10:23 p.m.
As a practical matter, when a helicopter crashed on
the beach at Koah Tang at 7:45 p.m., we were irrevocably
committed.
- US losses were 18-KIA/MIA.
GERALD R. FORD LIBRARY
1
The attack missions against the mainland were flown
against i) petroleum storage facility, not against a
refinery. Indeed there was no refinery. The
Cambodian aircraft struck were attacked in the firm
belief, both then and now that some or all of them
were operational. These operations were intended to
ensure that Koah Tang Island was not reinforced during
the operation to reseue the crew, and during the
subsequent withdrawal of American Mariner from the
island.
-
There was no standard warning being given chips as to
dangers in this area which was not also given to the
Mayagnes,
I to ust that the foregoing comments, and the enclosures, : re responsivo
to the concerns you have expressed. We are. of course, cratified by
your assessment that the procedured established in the law orlied
reasonably well in these instances.
Sincerely yours,
Signed Martin R, Hoftburn
Martin R. Hoffmann
Enclosures
as
FORD in 03 LIBRARY
file Nar Powers
THE WHITE HOUSE
WASHINGTON
August 5, 1976
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
Please note the attached. Monroe Leigh gave me a call
JACK June MARSH
and indicated that they had had some inquires from
Senator Javits' Office about the observance of the War
Powers legislation in reference to the Lebanese evacua-
tions.
Monroe was not aware of the notifications of the House
and Senate Leadership which we had made and I offered to
send him copies of our reports on the same.
Many thanks.
BERAU N. FORD LIBRARY
August 5, 1976
MEMORANDUM FOR:
MONROE LEIGH
FROM:
JACK MARSH
Attached are copies of the reports on the Congressional
contacts we made in reference to both of the Lebanese
evacuations.
As you know, we keep a very close hold on these, and I
would appreciate your maintaining their confidentiality.
Many thanks.
CC: Phil Buchen
JOM/d1
FORD - LIBRARY
THE WHITE HOUSE
washington
Ken
Gleasengrare
a memo fels
me tosend on.
R
THE WHITE HOUSE
Nar
WASHINGTON
August 18, 1976
MEMORANDUM FOR:
JACK MARSH
FROM:
PHIL BUCHEN P.
SUBJECT:
War Powers Resolution
This is in response to your memorandum of August 3,
requesting my views on the advisability of seeking
a court determination regarding the constitutionality
of the War Powers Resolution. For the reasons discussed
below, I would not encourage the recommendation advanced
by Senator Goldwater for such a determination.
BACKGROUND
The War Powers Resolution [Pub. L. 93-148;H.J.Res. 542,
93d Cong., 2d Sess. (1973) ] was enacted by Congress on
November 7, 1973, over the veto of former President
Nixon. Never before had Congress undertaken to codify
or define rules applicable to the introduction of
United States armed forces into war or threatened war.
The announced purpose of the resolution, set forth in
Sec. 2(a), is:
***
" . to insure that the collective
judgment of both the Congress and
the President will apply to the intro-
duction of United States Armed Forces
into hostilities, or in situations
where imminent involvement in
hostilities is clearly indicated by
the circumstances, and to the continued
use of such forces in hostilities or in
such situations."
***
BERAU R. FORD LIBRARY
- 2 -
Section 2 (c) expresses a congressional understanding
that the "constitutional powers of the President as
Commander-in-Chief" to commit military forces exist
only when: (1) Congress has declared war, (2)
legislated specific authority, or (3) the United
States is under attack.
Section 3 provides that the President will consult
with Congress "in every possible instance" before
each use of armed forces in hostilities or threatened
hostilities and regularly thereafter, until United
States forces are disengaged or removed from such
situations. The applicability of the resolution is
initiated by Sec. 4, which requires that, absent a
declaration of war, whenever United States armed
forces are introduced (1) into hostilities or
imminent hostilities; (2) into the territory, air
space, or waters of a foreign nation, when equipped
for combat (other than solely for the supply, replace-
ment, repair or training of forces) ; or (3) in numbers
which substantially enlarge United States forces
equipped for combat already located in a foreign
nation, the President must report it in writing to
Congress within 48 hours and periodically afterwards.
It is significant that situations (2) and (3) are
not tied to the actual outbreak of or imminent involve-
ment in hostilities, but restrict the mere deployment
of combat forces into another country, whether or not
hostilities might be anticipated. Even the strengthening
of units already located in foreign countries is
similarly restricted.
Once the reporting provision has been triggered, Sec. 5
takes effect. This section mandates that no later than
60 days after a report is required, "the President shall
terminate any use of United States Armed Forces with
respect to which such report was submitted (or required
to be submitted) , "unless Congress grants specific
authority for the operation to continue or "is physically
unable to meet as a result of an armed attack upon the
United States. " The 60-day period can be extended for
an additional 30 days if the President determines and
certifies to Congress that the safety of United States
troops demands their continued use in the course of
bringing about their prompt removal.
FORD in LIBRARY CAMES
-3-
DISCUSSION
Senator Goldwater and others have argued that the War
Powers Resolution represents a legislative encroachment
upon the President's exclusive constitutional province
in violation of the Commander-in-Chief clause [Art. II,
Sec. 2, cl. 1]. It is not clear whether their argument
relates only to the effects of Section 5 or whether it
also relates to the requirements that the President must
consult with Congress and must report concerning the use
of armed forces when there has been no declaration of war.
As you know, on a number of occasions, most notably the
Mayaguez incident, President Ford has directed military
operations which came within the purview of the War
Powers Resolution. A practice has developed in these
instances which is neither cumbersome nor unseemly. The
practice calls for the President to provide the Congress
with notice of troop movement and to consult with members
of the Congressional leadership on the general nature of
the problem and his intended solution. Although noting
the War Powers Resolution, the President has, for the
record, consistently relied solely on his constitutional
powers to effect these actions (see attachment)
Therefore, I see no point in trying to challenge the
consultation and notification procedure of the resolution.
However, the more serious objection is Section 5 which
requires the President to terminate military action after
a specified period unless the Congress grants specific
authority to continue the operation. It is possible to
imagine a situation where the President would want to
continue despite the refusal of Congress to approve his
operation, but until we arrive at that situation, I do
not see that there would be a case or controversy for
submission to a court. Also, the initiative to bring
a court action would probably have to come from Members
of Congress who would seek to stop the continuation of
the operation if it went beyond the period specified in
the statute. At that point, the Department of Justice
would enter the case for the President, and I see no
reason why private funds would be required to defend
the case against the President.
R.
FORD
LIBRARY
4
I fear that Senator Goldwater has not realized that
it is impossible to go at will into court for the
purpose of challenging a particular statute. A
federal court will only hear a "case or controversy"
and will not decide in the abstract on the validity
or interpretation of a statute. As you recall, we
have wanted to challenge statutes allowing for
Congressional "veto" of Executive actions, but we
are not able to initiate a suit and must await the
occasion of an actual veto that we defy and then
are challenged for defying it. Therefore, I would
discourage the Senator from the fund raising effort
which he proposes in his letter to Bill Whyte.
is
STATES
team
THE WHITE HOUSE
WASHINGTON
August 10, 1976
MEMORANDUM FOR:
JACK MARSH
FROM:
PHIL BUCHEN
SUBJECT:
War Powers Resolution
This is in response to your memorandum of August 3, requesting
my views on the advisability of seeking a court determination
regarding the constitutionality of the War Powers Resolution. For
the reasons discussed below, I would not encourage the recommendation
advanced by Senator Goldwater for such a determination.
Background
The War Powers Resolution [Pub. L. 93-148; H.J. Res. 542, 93d
Cong., 2d Sess. (1973)] was enacted by Congress on November 7, 1973,
over the veto of former President Nixon. Never before had Congress
undertaken to codify or define rules applicable to the introduction of
United States armed forces into war or threatened war.
The announced purpose of the resolution, set forth in Sec. 2(a), is:
* * *
11
to insure that the collective
judgment of both the Congress and
the President will apply to the intro-
duction of United States Armed Forces
into hostilities, or in situations where
imminent involvement in hostilities is
clearly indicated by the circumstances,
and to the continued use of such forces
in hostilities or in such situations. "
* * *
Section 2(c) expresses a congressional understanding that the
"constitutional powers of the President as Commander-in-Chief" to
commit military forces exist only when: (1) Congress has declared
war, (2) legislated specific authority, or (3) the United States is under
attack.
FORD
CERTIFY
LIBRARY
- 2 -
Section 3 provides that the President will consult with Congress "in
every possible instance" before each use of armed forces in
hostilities or threatened hostilities and regularly thereafter, until
United States forces are disengaged or removed from such situations.
The applicability of the resolution is initiated by Sec. 4, which
requires that, absent a declaration of war, whenever United States
armed forces are introduced (1) into hostilities or imminent
hostilities; (2) into the territory, air space, or waters of a foreign
nation, when equipped for combat (other than solely for the supply,
replacement, repair or training of forces); or (3) in numbers which
substantially enlarge United States forces equipped for combat already
located in a foreign nation, the President must report it in writing
to Congress within 48 hours and periodically afterwards. It is
significant that situations (2) and (3) are not tied to the actual outbreak
of or imminent involvement in hostilities, but restrict the mere
deployment of combat forces into another country, whether or not
hostilities might be anticipated. Even the strengthening of units
already located in foreign countries is similarly restricted.
Once the reporting provision has been triggered, Sec. 5 takes effect.
This section mandates that no later than 60 days after a report is
required, "the President shall terminate any use of United States
Armed Forces with respect to which such report was submitted (or
required to be submitted), 11 unless Congress grants specific authority
for the operation to continue or "is physically unable to meet as a
result of an armed attack upon the United States. " The 60-day period
can be extended for an additional 30 days if the President determines
and certifies to Congress that the safety of United States troops demands
their continued use in the course of bringing about their prompt removal.
Discussion
Senator Goldwater and others have argued that the War Powers
Resolution represents a legislative encroachment upon the President's
exclusive constitutional province in violation of the Commander-in-
Chief clause [Art. II, Sec. 2, cl. 1]. Although I share the concerns
of Senator Goldwater and others in this regard, I do not believe that
any gain would be realized in seeking a confrontation with the Congress
on this issue at any time in the foresecable future. My views in this
regard have been reinforced by my working experiences with the
Resolution.
Surprisingly little discussion of the Commander-in-Chief clause is
found in the Convention or in the ratifying debates. From the evidence
available, it appears that the Framers vested the duty in the President
1.
FORD
LIBRARY
- 3 -
11
to be Commander in Chief of the Army and Navy of the
United States
", because experience in the Continental Congress
had disclosed the inexpediency of vesting command in a group and
because the lesson of English history was that danger lurked in
vesting command in a person separate from the responsible political
leaders [May, "The President Shall Be Commander in Chief, " in
E. May (ed.), The Ultimate Decision -- The President as Commander
in Chief (New York: 1960)].
The purely military aspects of the Commander-in-Chiefship were
those which were originally stressed. Hamilton said the office
"would amount to nothing more than the supreme command and
direction of the military and naval forces, as first general and
admiral of the confederacy. [The Federalist No. 69 (Modern
Library ed. 1937), 448]
Story wrote in his Commentaries:
* * *
"The propriety of admitting the president
to be commander in chief, so far as to give
orders, and have a general superintendence,
was admitted. But it was urged, that it
would be dangerous to let him command in
person, without any restraint, as he might
make a bad use of it. The consent of both
houses of Congress ought, therefore, to be
required, before he should take the actual
command. The answer then given was, that
though the president might, there was no
necessity that he should, take the command in
person; and there was no probability that he
would do so, except in extraordinary emer-
gencies, and when he was possessed of superior
military talents. " [J. Story, Commentaries
on the Constitution of the United States (Boston:
1833), $1486.
* * *
In 1850, Chief Justice Taney, for the Court, said:
* * *
"His duty and his power are purely military.
SERATO R. FORD LIBRARY
As commander-in-chief, he is authorized to
direct the movements of the naval and military
- 4 -
forces placed by law at his command, and to
employ them in the manner he may deem most
effectual to harass and conquer and subdue the
enemy. He may invade the hostile country,
and subject it ot the sovereignty and authority
of the United States. But his conquests do not
enlarge the boundaries of this Union, nor extend
the operation of our institutions and laws beyond
the limits before assigned to them by the legis-
lative power. "
[Fleming V. Page, 9 How. (50 U.S.) 603, 615,
618 (1850)]
*
The basis for a broader conception of the power was laid in certain
early acts of Congress authorizing the President to employ military
force in the execution of the law. [1 Stat. 424 (1795): 2 Stat. 443
(1807), now 10 U.S. C. 5331-334.] Later, Lincoln advanced the
claim still further by asserting that the "war power" was his for the
purpose of suppressing rebellion, and in the Prize Cases [2 B1. (67
U.S.) 635 (1863)] of 1863, a divided Supreme Court sustained this theory.
A broad view of the President's power as Commander in Chief continued
to develop during World Wars I and II. A succession of presidents
claimed that the Commander-in-Chiefship carried with it independent
powers to utilize military forces not only to protect the nation from
attack but to further the nation's interests across a wide spectrum of
activity, without significant Congressional limitation.
During World War II, President Roosevelt claimed the power authorized
him to impose mandatory price controls, to create new government
agencies, to evacuate Japanese from the West Coast and to create the
National War Labor Board prohibiting all labor disputes.
During the post-war years, there was some diminution of the power
asserted under the Commander-in-Chief clause. However, this was
largely a reaction against the wartime exercise of power by Presidents
Roosevelt and Truman and this fact was recognized by the Supreme
Court when it struck down the President's action in seizing the steel
industry while it was struck during the Korean War [Youngstown Sheet
and Tube Co. V. Sawyer, 343 U.S. 579 (1952)].
BERALD FORD LIBRARY
- 5 -
Despite this temporary setback, the trend of growth in the war
power was not reversed. President Truman did not seek
congressional authorization before sending troops to Korea and
subsequent presidents similarly acted on their own in putting
troops into Lebanon and the Dominican Republic as well as most
notably into Indochina. Eventually, however, public opposition
to the Vietnam War precipitated a constitutional debate as to the
appropriate scope of Presidential power in this area, a debate which
went on inconclusively between Congress and the Executive and one
which the courts were content generally to avoid. It was against
this backdrop that the War Powers Resolution was enacted.
The central observation to be made regarding the War Powers
Resolution is that it has established certain limited precedents of
practice and policy rather than constitutional rules. At this particular
time in our history, it is a realistic solution to a fundamental conflict
between the Legislative and Executive Branches and should not be
assaulted frontally.
On a number of occasions, most notably the Mayaguez incident,
President Ford has directed military operations which came within
the purview of the War Powers Resolution. A practice has developed
in these instances which is neither cumbersome nor unseemly. The
practice calls for the President to provide the Congress with notice
of troop movement and to consult with members of the Congressional
leadership on the general nature of the problem and his intended
solution. Although noting the War Powers Resolution the President
has, for the record, consistently relied solely on his constitutional
powers to effect these actions (see attachment).
//
Conclusion
In view of the fact that the War Powers Resolution has led to
Presidential practices and policies which are both workable and
dignified, there would appear to be no pressing need to disturb
them. Additionally, the President always retains the flexibility
to take a firmer position on the subject should that ever become a
necessity. Finally, this issue raises the kind of fundamental rub
between the Legislative and Executive Branches which best lends
itself to solutions grounded in comity. For these reasons, I cannot
support the recommendation of Senator Goldwater to seek a court
challenge to the War Powers Resolution.
#
BERAILS 1. FORD UBRANT
THE WHITE HOUSE
WASHINGTON
August 3, 1976
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
JACK MARSH
Please note the attached letter to Bill Whyte, a copy of which
was sent to the White House.
The President has raised the question as to whether the course
suggested by Senator Goldwater should be pursued on getting a
court determination of the War Powers Act.
I would appreciate your views.
Many thanks.
cc: Dick Cheney
STATE FORD LIBRARY
BARRY GOLDWATER
COMMITTEES:
ARIZONA
AERONAUTICAL AND SPACE SCIENCES
ARMED SERVICES
RECEIVED
PREPAREDNESS INVESTIGATING SUBCOMMITTEE
WM. G. WHYTE
TACTICAL AIR POWER SUBCOMMITTEE
United States Senate
INTELLIGENCE SUBCOMMITTEE
MILITARY CONSTRUCTION SUBCOMMITTEE
DUL 27 1976
WASHINGTON, D.C. 20510
RESEARCH AND DEVELOPMENT SUBCOMMITTEE
VICE PRESIDENT
WASHINGTON
July 21, 1976
Mr. William Whyte
U. S. Steel
1625 K Street, Northwest
Washington, D. C. 20006
Dear Bill:
Ever since the Congress foolishly passed the War Powers
Act about two years ago, I had been discussing the de-
sirability and possibility of bringing a suit so that an
ultimate decision could be made by the Supreme Court testing
the constitutionality of this measure.
In my humble opinion, it is unconstitutional, but far beyond
that, it makes the Congress, all 535 members, the group
which will determine foreign policy, the group which will
determine if, when and with whom we go to war and, to be
honest with you, it scares the daylights out of me.
Now, my question to you is that if we can reach a determina-
tion as to how much this course of action might cost, and
I'm thinking of at least a quarter of a million dollars, do
you think we can put enough men together to raise the money
for that purpose? I will be very willing to help in any
way that I can, but let me suggest, Bill, that you first
discuss this with the President. I have very quickly brushed
it by him, but I have a feeling that he would be very desirous
of having the test made. I know that Nixon had that feeling
and I haven't spoken with a former Secretary of State yet
who doesn't feel that this legislation can be destructively
dangerous to the future of our country. I would appreciate
hearing from you. I am writing no one else until the two of
us can either agree or disagree.
Sincerely,
Barry Buy Goldwater
SEALE R. FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
April 30, 1975
Dear Mr. Speaker:
On April 4, 1975, I reported that U.S. naval vessels had
been ordered to participate in an international humanitarian
relief effort to transport refugees and U.S. nationals to
safety from Danang and other seaports in South Vietnam.
This effort was undertaken in response to urgent appeals
from the Government of South Vietnam and in recognition of
the large-scale violations by the North Vietnamese of the
Agreement Ending the War and Restoring the Peace in Vietnam.
In the days and weeks that followed, the massive North
Vietnamese attacks continued. As the forces of the Government
of South Vietnam were pushed further back toward Saigon, we
began a progressive withdrawal of U.S. citizens and their
dependents in South Vietnam, together with foreign nationals
whose lives were in jeopardy.
On April 28, the defensive lines to the northwest and south
of Saigon were breached. Tan Son Nhut Airfield and Saigon
came under increased rocket attack and for the first time
received artillery fire. NVA forces were approaching within
mortar and anti-aircraft missile range. The situation at
Tan Son Nhut Airfield deteriorated to the extent that it
became unusable. Crowd control on the airfield was breaking
down and the collapse of the Government forces within Saigon
appeared imminent. The situation presented a direct and
imminent threat to the remaining U.S. citizens and their
dependents in and around Saigon.
On the recommendation of the American Ambassador there, I
ordered U.S. military forces to proceed by means of rotary
wing aircraft with an emergency final evacuation out of
consideration for the safety of U.S. citizens.
In accordance with my desire to keep the Congress fully
informed on this matter, and taking note of the provision
of section 4 of the War Powers Resolution (Public Law 93-148),
I wish to report to you that at about 1:00 A.M. EDT,
April 29, 1975, U.S. forces entered South Vietnam airspace.
a.
DEPARTMENT
FORD
LIBRARY
A force of 70 evacuation helicopters and 865 Marines
evacuated about 1400 U.S. citizens, together with
approximately 5500 third country nationals and South
Vietnamese, from landing zones in the vicinity of the
U.S. Embassy, Saigon, and the Defense Attache Office at
Tan Son Nhut Airfield. The last elements of the ground
security force departed Saigon at 7:46 P.M. EDT April 29,
1975. Two crew members of a Navy search and rescue
helicopter are missing at sea. There are no other known
U.S. casualties from this operation, although two U.S.
Marines on regular duty in the compound of the Defense
Attache Office at Tan Son Nhut Airfield had been killed
on the afternoon (EDT) of April 28, 1975, by rocket attacks
into a refugee staging area. U.S. fighter aircraft provided
protective air cover for this operation, and for the with-
drawal by water of a few Americans from Can Tho, and in one
instance suppressed North Vietnamese anti-aircraft artillery
firing upon evacuation helicopters as they departed. The
ground security forces on occasion returned fire during the
course of the evacuation operation.
The operation was ordered and conducted pursuant to the
President's Constitutional executive power and his authority
as Commander-in-Chief of U.S. Armed Forces.
The United States Armed Forces performed a very difficult
mission most successfully. Their exemplary courage and
discipline are deserving of the nation's highest gratitude.
Sincerely,
GERALD FORD
The Honorable
The Speaker
United States House of Representatives
Washington, D. C. 20515
is
DEPARTMENT
FORD
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"ocrText": "The original documents are located in Box 65, folder \"War Powers Resolution General\" of\nthe Philip Buchen Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nTAB A\nSummary of Legislative Restrictions\nI. Provisions Regarding All of Indochina: Limitation\non Use of Funds to Finance Cross-Border Operations\nSection 31 of the Foreign Assistance Act of 1973\n(Pub. L. 93-189) provides that no funds authorized or\nappropriated under any provision of law shall be\navailable to finance military or paramilitary combat\noperations by foreign forces in Laos, Cambodi North\nVietnam, South Vietnam or Thailand unless such opera-\ntions are conducted by the forces of the recipient\ngovernment within its own borders. (See also Section\nIII A of this summary, below, with regard to further\nrestrictions on Vietnamese forces in Cambodia.)\nII. Provisions Regarding Cambodia\nA. Financial Ceiling for Cambodia\nSection 655 of the Foreign Assistance Act of\n1961, as amended (Added by § 304 (b) of Foreign Assistance\nAct of 1971, Pub. L. 92-226, February 7, 1972).\nThis section imposes a ceiling of $377 million\nfor the fiscal year 1975 on the obligation of funds\n\"for the purpose of carrying out directly or indirectly\nany economic or military assistance, or any operation,\nproject or program of any kind, or for providing any\ngoods, supplies, materials, equipment, services,\npersonnel, or advisers in, to, for, or on behalf of\nCambodia during the fiscal year ending June 30, 1975.\"\nIn addition to this ceiling, this section places a limit\nof $75 million on the use during fiscal year 1975 of\nthe President's authority under Section 506 of the\nForeign Assistance Act to provide defense articles\nfrom DOD stocks and defense services to Cambodia.\nB. U.S. Citizens and Third Country National\nPersonnel Coilings for Cambodia\nSection 656 of the Foreign Assistance Act of\n1961, as amended (Added by Section 304 (b) of the\nForeign Assistance Act of 1971).\nBERALD FORD LIBRARY\nDigitized from Box 65 of the Philip Buchen Files at the Gerald R. Ford Presidential Library\n2\nThis section contains two separate personnel\nrestrictions:\n(1) a limit of 200 is placed on the total number\nof officers and employees of the Executive\nBranch who are U.S. citizens, including\nmembers of the Armed Forces of the United\nStates, \"present in Cambodia at any one time.\"\nExcluded are members of the Armed Forces while\nthey are actually engaged in air operations\nin or over Cambodia originating outside\nCambodia;\n(2) the United States is precluded from paying\nat any time \"in whole or in part, directly\nor indirectly \"the compensation or allowances\nof more than 35 individuals in Cambodia who\nare citizens of countries other than Cambodia\nor the United States. Volunteer workers and\nemployees of private relief organizations\nengaged in humanitarian assistance are\nexcepted from these ceilings.\nIII. Vietnam\nA. Limit on Military Assistance and Proviso that\nit Shall not be Used to Finance Vietnamese\nTroops to go to M.d of. Governments of Laos\nor Cambodia\nSection 401 (a) (1) of the Armed Forces Supplemental\nAppropriation Authorization Act of 1966, as amended, places\na limit of $1, 126, 000, 000 on DOD funds which may be\nexpended for Vietnam and limits the purpose of such\nexpenditures to support of \"Victnamese and other free\nworld forces in support of Victnamese forces.\" A\nproviso prohibits the use of these funds (Military\nAssistance Service Funded - or \"MASF\") to support\nVietnamese or other free world forces in actions designed\nt:0 give military support and assistance to the Governments\nof Laos or Cambodia. (The legislative history of this\nproviso makes clear that cross-border operations in\nsanctuary areas were not intended to be precluded by\nthe section.)\nBERALD N. FORD LIBRARY\n- 3 -\nB. Ceiling on U.S. Citizen and Third Country\nNational Personnel in Vietnam\nSection 38 of the Foreign Assistance Act of\n1974 imposes the following limitations:\n(1) Effective June 30, 1975, a limitation\nof 4,000 is placed on the total number\nof civilian officers and employees,\nincluding contract employees, of executive\nagencies of the U.S. Government present\nin South Vietnam at any one time, not more\nthan 2,500 of which may be members of the\nU.S. Armed Forces and DOD direct-hire and\ncontract employees. Effective December 30,\n1975, these numbers are reduced to 3,000\nand 1,500 respectively.\n(2) Effective June 30, 1975, the total number\nof third country nationals in Vietnam at\nany one time whose \"compensation or allowances\"\nare paid \"in whole or in part, directly or\nindirectly\" by the U.S. Government shall not\nexceed 800. Effective December 30, 1975,\nthis number is reduced to 500.\nVolunteer workers or employees of private relief\norganizations engaged in humanitarian assistance are\nexcepted from these ceilings.\nIV. Laos: Financing\nSection 40 (a) of the Foreign Assistance Act of\n1974 places a ceiling of $70,000,000 on funds which\nmay be obligated during FY 1975 for assistance-related\nactivities in Laos, $30,000,000 of which may be utilized\nfor provision of military assistance.\nFORD - LIBRARY\n[April 1975?]\nLEGISLATIVE RESTRICTIONS ON EXECUTIVE AUTHORITY:\n#3\nWAR POWERS, EXECUTIVE AGREEMENTS AND\nEXECUTIVE PRIVILEGE\nI.\nRestrictions on the President's War Powers Authority\nOver the last five years many statutes have been\nenacted which restrict the President's ability to affect\noverseas hostilities, principally in Southeast Asia, through\nmaterial and advisory assistance to friendly governments.\nInasmuch as these restrictions do not directly restrict the\nPresident's authority as Commander-in-Chief, they are not\ndiscussed in detail in this paper. A brief description of\nthe most important of them is attached.\nOnly three legislative restrictions directly affect the\nwar powers of the President: The Cooper-Church Amendment;\nthe prohibition against \"combat activities\" by United States\nmilitary forces \"in or over or from off the shores of North\nVietnam, South Vietnam, Laos, or Cambodia after August 15,\n1973; and the War Powers Resolution.\nA. Cooper-Church Amendment (Section 7 (a) of the\nSpecial Foreign Assistance Act of 1971, as\namended)\nDescription. As originally enacted in 1971,\nSection 7 (a) prohibited the use of any \"funds authorized or\nappropriated pursuant to this or any other act to\nfinance the introduction of United States ground combat troops\ninto Cambodia, or to provide United States advisers to or for\nCambodian military forces in Cambodia.\" In 1972 this section\nwas amended to prohibit the introduction into Cambodia of\nU.S. ground combat troops and \"United States advisers to or\nfor military, paramilitary, police, or other security or\nintelligence forces in Cambodia.\"\nIssues. The Cooper-Church Amendment was in response\nto the introduction of American forces into Cambodia in the\nSpring of 1970. It never became a subject of conflict between\nthe executive and legislative branches because soon after\nthe introduction of these forces it became the stated policy\nof the Administration that, after July 1, 1970, \"the only\nBERALD R. FORD LIBRARY\n- 2 -\nremaining American activity in Cambodia\n...\nwill be air\nmissions to interdict the movement of enemy troops and\nmateriel.' (President Nixon's Report on Cambodia,\nJune 3, 1970.) This intention was also expressed by\nSecretary Rogers in hearings before the Senate when he\nsaid \"We have no intention of getting ground troops in-\nvolved in Cambodía, and we are not going to get involved\nwith military advisers in Cambodia; we are not going to.\" /\nIndeed, the amendment itself clearly indicates that the\ncongruence of executive intentions with congressional desires\nwas an important consideration in its enactment. **/ Thus,\nno arguments have been raised on behalf of the executive\nbranch in opposition to this restriction.\nB. Prohibition against Combat Activities by United\nStates Military Forces in Indochina\nDescription. This restriction was originally\nenacted in the Second Supplemental Appropriations Act of:\n1973 and in the resolution continuing appropriations into\nfiscal year 1974. ***/ It has since been repeated in several\nother statutes. **** The effect of all of these restrictions\nis to prohibit the use of any appropriations for the direct\nor indirect financing of \"combat activities by United States\nmilitary forces in or over or from off the shores of North\nVietnam, South Vietnam, Laos or Cambodia.' *****/\n/\nSenate Report 91-1437, December 14, 1970, page 9.\n/\nSection 7 (a) begins: \"In line with the expressed\nintention of the President of the United States\n\"\n***/\nPub. L. 93-50 $307 (Second Supplemental Appropriations\nAct, 1973) and 93-52 $108 (Continuing Appropriations,\n1974).\n**** / See Pub. L. 93-126 $13 (Department of State Appropriations\nAct of 1973; Pub. L. 93-189 $31 (Foreign Assistance Act\nof 1973), Pub. L. 93-155 $806 (Department of Defense\nAuthorization Act of 1974), Pub. L. 93-238 $741 (Depart-\nment of Defense Appropriation Act, 1974), and Pub. L. 93-\n1975). 437 §849 (Department of Defense Appropriation Act,\n***** / Pub. L. 93-238 $741 (Department of Defense Appropriations\nAct, 1974).\nFORD LIBRA\n- 3 any\nIssues. This restriction was originally enacted\nas the result of a compromise between the President and\nthe Congress in the summer of 1973. Its enactment was not,\nas a formal matter, opposed by the executive branch. How-\never, an earlier version which would have cut off funds at\nthe end of June rather than on August 15, 1973, was vetoed.\nThe arguments raised in opposition to the carlier\ncut-off did not relate to broad questions of executive\nauthority. Rather, they dealt with specific issues such as\nthe effect of an American bombing halt on the prospects for\na negotiated settlement, the likelihood that such a halt\nwould lead to a Communist military victory and the effect of\nUnited States acquiescence in Communist violations of the\nParis Agreement on our general creditability abroau. Though\none could argue that events have vindicated the position of\nthe executive branch on these issues, we have not done so,\nat least not in relation to the \"combat activities\" pro-\nhibitions.\nC. War Powers Resolution (Pub. L. 93-148, November 7,\n1973)\nDescription. The War Powers Resolution requires that\nthe President submit a report to Congress whenever United\nStates Armed Forces are introduced \"into hostilities or into\nsituations where imminent involvement in hostilities is\nclearly indicated by the circumstances,\" or into the territory\nof a foreign state while equipped for combat or in numbers\nwhich substantially enlarge our combat equipped forces already\nlocated in such territory. The Resolution further requires\nthat the President \"terminate any use\" of U.S. Armed Forces\nintroduced into hostilities or into situations when imminent\ninvolvement in hostilities is indicated within 60 days unless\nthe Congress (1) has declared war or enacted a specific\nauthorization for the activity in question, (2) has extended\nby law the 60-day period or (3) is physically unable to meet\nas a result of an armed attack. The Resolution also provides\nthat the Congress may require, by concurrent resolution, the\nearlier termination of the involvement of U.S. forces in\nhostilities.\nIssues. The long arguments over the War Powers\nResolution concerned essentially two issues: the consti-\ntutionality of certain parts of the Resolution and the\nResolution's possible effect on our ability to use our\narmed forces decisively and effectively in a variety of\nsituations.\nFORD is LIBRARY BERALD\n- 4 -\n(1) Constitutionality. The principal constitutional\nobjection raised by the executive branch related to the re-\nquircment that forces be withdrawn within 60 days unless\nCongress took positive action to authorize their continued\ninvolvement in hostilities and to the requirement that such\nforces be withdrawn even earlier if so directed by a concur-\nrent resolution of the Congress. With respect to the first\nrequirement, it was argued that since the authority of the\nPresident to introduce forces into hostilities is based on his\nconstitutional authority as Commander-in-Chief and Chief\nExecutive, the Congress may not effectively terminate a given\nexercise of that authority by a mere failure to take positive\naction. Nor, it was argued, could such an exercise of con-\nstitutional authority be terminated by concurrent esolution ---\n\"an act which does not normally have the force of law, since\nit denies the President his constitutional role in approving\nlegislation. \"\n(2) Policy Issues. The basic policy argument\nof the Administration, as set forth in the veto message, was\nthat enactment of the War Powers Resolution would \"seriously\nundermine this nation's ability to act decisively and con-\nvincingly in times of international crises. \" This, it was\nfurther argued, would undermine the confidence of our allies\nin our ability to assist them and interject a \"substantial\nelement of unpredictability\ninto the world's assess-\nment of American behavior, further increasing the likelihood\nof miscalculation and war. If\nSubsidiary, more specific arguments were also\nraised. It was pointed out that the 60-day termination\nrequirement could serve to prolong or intensify a crisis\nsituation in the hope that the United States would be forced\nto withdraw at the end of 60 days. Certainly, it was argued,\nthere would be little incentive for an adversary to enter\ninto negotiations until such time as the Congress had au-\nthorized continued military involvement. It was also claimed\nthat the Resolution might force the President to intensify\nour military actions more than otherwise would have been\nnecessary in order to achieve certain objectives within the\n60-day time limit.\n* / President's Veto Message regarding the War Powers\nResolution, October 24, 1973, in the Department of\nState Bulletin, November 26, 1973, page 662.\nFORD LIBRARY\n- 5 -\nPresent Position. Though there has been no\ncomprehensive statement of the attitude of the executive\nbranch toward the War Powers Resolution since its enact-\nment, WC have been following a policy of conscientious\nattention to the requirements of the Resolution. No sit-\nuation has yet arisen which, in our view, has required the\nsubmission of a report under Section 4 (a) of the Resolution.\nProcedures have been established, however, for prompt con-\nsideration by the Departments of State and Defense of any\nmovement of United States forces which might require such a\nreport. We also, of course, have not yet had to face a\nsituation which presented a real constitutional question.\nWe cannot now determine how we would deal with such a situa-\ntion should one ever arise. Hypothetical questions of this\nsort might be answered along the following lines:\n\"We do not anticipate any constitutional\ncrisis in the operation of this new law\nbecause it is our hope that cooperation\nbetween the two branches will be such that\nthe Congress will support the President if\nand when military action becomes necessary\nto protect the interests of this nation. \"\n/ The Chairmen of the House Foreign Affairs Committee\nand the Senate Foreign Relations Committee were advised\nof these procedures on October 7, 1974.\nFORDO in LIBRARY\nGERALD R. FORD\nanything\nneed\nto be done\non this ?\nThis can\nCae filed P.\nI\nI\nTHE WHITE HOUSE\nWASHINGTON\nJoy\nmr Buchen\nTHE WHITE HOUSE\n]\nRemember\nQues. re\nNeutral ships.\n-\nPovers\nNai\nSTATEMENT OF BENJAMIN FORMAN\nASSISTANT GENERAL COUNSEL, DEPARTMENT OF DEFENSE\nBEFORE THE SENATE JUDICIARY\nSUBCOMMITTEE- ON SEPARATION OF POWERS\nSEPTEMBER 9, 1975\nMr. Chairman and Members of the Committee:\nI am appearing here today, together with Mr. Morton I.\nAbramowitz, Deputy Assistant Secretary of Defense (International\nSecurity Affairs) for East Asia and Pacific Affairs, in response\nto the invitation of the Subcommittee to the Secretary of\nDefense to testify \"regarding the extent of the President's\nCommander-in-Chief power unilaterally to introduce U.S. armed\nforces into hostilities and regarding certain instances of the\nPresident's exercise of such power or of the possible future\nexercise of such power. \"\nAs our nation enters its bicentennial year, it would\nappear eminently fitting that attention be focused on our\nConstitution, and since we have but recently terminated an\nextended period of unpopular hostilities, that the respective\nwar power of the President and the Congress be particularly\nexamined. It should be noted, however, that after 200 years\nof extended and often intensive debate about the war power\nno fresh insights may reasonably be expected to come from\nthese hearings.\nThe records of the Constitutional Convention and the\ncontemporaneous writings of the Founding Fathers are familiar\nTORO - LIBRARY\n2\nground to historians and students of Constitutional law. Like\nbiblical texts, they have been subjected to exacting exegesis\nin an effort to extract detailed commandments for our guidance\nfrom the very general and broad wording of Article II of the\nConstitution. To quote Mr. Justice Jackson in the Steel\nSeizure case about the vagueness of the language of Article II\n(72 S. Ct. 863, 869-870) :\n\"Just what our forefathers did envision, or\nwould have envisioned had they foreseen modern\nconditions, must be divined from materials\nalmost as enigmatic as the dreams Joseph\nwas called upon to interpret for Pharaoh. A\ncentury and a half of partisan debate and\nscholarly speculation yields no net result\nbut only supplies more or less apt quotations\nfrom respected sources on each side of any\nquestion. They largely cancel each other.' \"\nMr. Justice Jackson further observed with respect to the Commander-\nin-Chief clause that (Id. at 873)\n\"These cryptic words have given rise to some\nof the most persistent controversies in our\nconstitutional history. Of course, they imply\nsomething more than an empty title. But just\nwhat authority goes with the name has plagued\nPresidential advisers who would not waive or\nnarrow it by nonassertion yet cannot say where\nit begins or ends.\"\nSimilarly, the governing court decisions--which are\nrelatively few in number-have not definitively resolved the\nfull scope of Presidential Commander-in-Chief power. In part,\nthese decisions are inconclusive because of the tradition that\nFORD in LIBRARY 03\n3\nConstitutional issues are dealt with on the narrowest grounds\npossible. In part, they reflect the fact that challenged\nactions of the President in the war power context do not\nnormally rely solely on the Commander-in-Chief power. The\nPresident's Executive Power, his Foreign Relations Power, his\nduty to take care that the laws-including the Constitution and\ntreaties made under the authority of the United States--be\nfaithfully executed, the responsibility to protect the States\nof the Union against invasion, his Constitutionally-prescribed\noath of office, and his statutory powers exercisable during\nnational emergency have all been cited, sometimes conjunctively,\nas the basis for various exercises of the war power by the\nPresident.\nBecause these judicial precedents and the debates of the\nFounding Fathers do not provide ready answers to war power\nissues which recur periodically, Presidents, legislators, litigants\nand scholars have also relied on the precedents established by\nprior Presidential or Congressional actions. While opposing\nparties have been known to claim the same incident as a precedent\nfor their side because of varying emphasis placed on the facts\nof the incident or because of disputed facts, it is generally\naccepted that such precedents are a valid tool in Constitutional\ninterpretation. As Mr. Justice Frankfurter declared in the Steel\nSeizure case (op. cit. supra at 897) :\nBERALD FORD LIBRARY\n4\n\"The Constitution is a framework for government.\nTherefore the way the framework has consistenly\noperated fairly establishes that it has operated\naccordingly to its true nature. Deeply embedded\ntraditional ways of conducting government cannot\nsupplant the Constitution or legislation, but\nthey give meaning to the words of a text or supply\nthem. It is an inadmissibly narrow conception of\nAmerican constitutional law to confine it to the\nwords of the Constitution and to disregard the\ngloss which life has written upon them. In short,\na systematic, unbroken, executive practice, long\npursued to the knowledge of the Congress and\nnever before questioned, engaged in by Presidents\nwho have also sworn to uphold the Constitution,\nmaking as it were such exercise of power part of\nthe structure of our government, may be treated\nas a gloss on 'executive Power' vested in the\nPresident by § 1 of Art. II.\"\nInasmuch as war power issues have far from been ignored by\nthe Congress during the past 200 years, it is not surprising that\nall the relevant materials have previously been collected and\npublished by the Congress. Within the past three decades--\nspurred by the so-called Great Debate of 195 on the issue of\nstationing U.S. forces in Europe and the subsequent debates\nabout the Korean War, the Vietnam War, the National Commitment\nResolution, and the War Powers Resolution- there have been\nrepeated hearings before various committees and extensive floor\ndebate on a number of bills and resolutions. Compilations of back-\nground materials were assembled. Testimony was heard from\nExecutive Branch witnesses, from Members of Congress, from\npracticing lawyers, and from other scholars. Learned articles\nfrom law reviews and other journals were incorporated into the\nFORD LIBRARY & MERTID\n5\nhearing records or separately published in the Congressional\nRecord.\nRather than plagiarize these materials and pretend to a\ndegree of erudition that I do not claim, and because I do\nnot believe that I can up with definitive answers where\nothers have failed, I will not attempt to duplicate or\nsynthesize what has already been written on the subject. I\nam also guided in this respect by the oft-quoted observation\nof Mr. Justice Holmes that \"General propositions do not decide\nconcrete cases. The decision will depend on a judgment or\nintuition more subtle than any articulate major premise.\"\nThe Committee and those who may read these hearings may\ndraw their own conclusions from the existing materials, the\nmost significant of which I shall now list for the record:\nThe Constitution of the United States of America--Analysis\nand Interpretation, (Sen. Doc. No. 92-82, pp. 448-473; prepared\nby the Congressional Research Service, Library of Congress)\nBackground Information on the Use of United States Armed Forces\nin Foreign Countries (H. Rept. No. 127, 82d Cong., 1st sess.\nFORD\nof the House Foreign Affairs Committee, Feb. 20, 1951, and its\n1970 revision by the Foreign Affairs Division, Legislative\nReference Service, Library of Congress); Powers of the President\nto Send the Armed Forces Outside the United States (prepared by\nthe Executive Branch for the use of the Joint Committee of the\nSenate Foreign Relations and Armed Services Committees, Feb. 28,\n1951, Committee Print, 82d Cong., 1st sess.); The Powers of the\n6\nPresident as Commander-in-Chief of the Army and Navy of the\nUnited States (H. Doc. No. 443, 84th Cong., 2d sess., June 14,\n1956); U.S. Commitments To Foreign Powers, Hearings Before the\nSenate Foreign Relations Committee on S. Res. 151 (90th Cong.,\n1st sess., Aug. 16, 17, 21, 23, and Sept. 19, 1967); National\nCommitments (S. Rept. No. 91-129, April 16, 1969, of the Senate\nForeign Relations Committee on S. Res. 85, 91st Cong., 1st\nsess.); Documents Relating to the War Power of Congress, The\nPresident's Authority as Commander-in-Chief and the War in\nIndochina (Committee Print, 91st Cong., 2d sess., of the\nSenate Foreign Relations Committee, July 1970); War Powers\n(S. Rept. No, 220, June 14, 1973, of the Senate Foreign Re-\nlations Committee on S, 440, 93d Cong., 1st sess. ) ; War Powers\nResolution of 1973 (H. Rept. No. 93-287, June 15, 1973, of\nthe House Foreign Affairs Committee on H. J. Res. 542, 93d\nCong., 1st sess.); War Powers (H. Rept. No. 93-547, Oct. 4,\n1973, Conference Report on H.J. Res, 542, 93d Cong., 1st sess.) ;\nand Vetoing House Joint Resolution 542, a Joint Resolution\nConcerning the War Powers of Congress and the President, Message\nfrom the President of the United States, October 24, 1973 (H.\nDoc. No. 93-171, October 25, 1973, 93d Cong., 1st sess.).\nSee also the following hearings held by the House International\nRelations Committee and the Senate Foreign Relations Committee\nBERALD FORD LIMRATE\n7\non War Powers: House--1970, 1971 and 1973; Senate 1971\nand 1973.\nhowever,\nThe Committee may find it helpful if I were to present\nan overview of the attempts made by the Congress over the past\nthirty years to deal with the war power issue. This period\nhas been characterized by some as one in which the Congress\ninitially surrendered its power to the President and sub-\nsequently redressed the balance and regained its authority.\nI for one, however, view the period as exemplifying a continuing\neffort at compromise solutions which failed to reach any con-\nclusive results. The outer limits of Presidential versus\nCongressional authority are still, in my opinion, unresolved.\nThey are necessarily unresolved because these authorities\noverlap and conflict, and were deliberately designed to do so\nin accordance with the fundamental concept of separation of\npowers. The President's power as Commander-in-Chief is no\nless subject to checks and balances than his other Constitutional\npowers. It is subject in appropriate cases to judicial review,\nand, \"as I shall later indicate, is also subject in certain areas\nto legislative restraints.\nThirty years ago this summer, the Congress engaged in a\npreliminary round of the so-called Great Debate. The issue was\nwhether the Armed Forces of this country could become involved,\nBERALD FORD LIBRATE\n8\nwithout a declaration of war, in a war pursuant to a Resolution\nof the United Nations Security Council under Article 42 of the\nCharter, which was then pending United States ratification. The\nforces at the disposal of the Security Council were those to be\nmade available by the Members of the United Nations in accordance\nwith special agreements negotiated between the Members and\nthe Security Council under Article 43 of the Charter, which\nexpressly provided that the agreements \"shall be subject to\nratification by the signatory states in accordance with their\nrespective constitutional processes.\" The result of the de-\nbate was the enactment by the Congress of section 6 of the\nUnited Nations Participation Act of 1945 (Public Law 79-264)\n\"The President is authorized to negotiate a special\nagreement or agreements with the Security Council\nwhich shall be subject to the approval of the\nCongress by appropriate Act or joint resolution,\nproviding for the numbers and types of armed forces,\ntheir degree of readiness and general location, and\nthe nature of facilities and assistance, including\nrights of passage, to be made available to the\nSecurity Council on its call for the purpose of\nmaintaining international peace and security in\naccordance with article 43 of said Charter. The\nPresident shall not be deemed to require the\nauthorization of the Congress to make available\nto the Security Council on its call in order to\ntake action under article 42 of said Charter and\npursuant to such special agreement or agreements\nthe armed forces, facilities, or assistance\nprovided for therein: Provided, That nothing\nherein contained shall be construed as an au-\nthorization to the President by the Congress to\nmake available to the Security Council for such\nSERATO FORD LIBRARY\n9\npurpose armed forces, facilities, or assistance in\naddition to the forces, facilities, and assistance\nprovided for in such special agreement or agree-\nments. (Emphasis supplied.)\nThe compromise embodied in section 6 of the United Nations\nParticipation Act of 1945 resolved undoubtedly the most ser-\nious challenge during the summer of 1945 to the Senate's advice\nand consent to the ratification of the U.N. Charter.\nIn 1949, the President submitted the North Atlantic Treaty\nto the Senate for advice and consent to ratification. Two of the\nprincipal the issues raised by the Treaty language were the extent\nof Ination's commitment and the respective roles of the President\nand the Congress in meeting that commitment.\nWith respect to the commitment in Article 5 of the Treaty\nthat, in the event of an armed attack against one or more of the\nParties, each Party will assist the Party or Parties so attacked\nby taking such action as it deems necessary \"to restore and\nmaintain the security of the North Atlantic Area\", the Committee\non Foreign Relations emphasized in its report that (Sen. Exec.\nRept. No. 8, 81st Cong., 1st sess., pp. 13-14) :\n\"this clearly does not commit any of the parties to\ndeclare war. Depending upon the gravity of the\nattack, there are numerous measures short of the use\nof armed force which might be sufficient to deal with\nthe situation. Such measures could involve anything\nfrom a diplomatic protest to the most severe forms\nof pressure.\n\"In this connection, the committee calls particular\nattention to the phrase 'such action as it deems necessary.\nThese words were included in article 5 to make absolutely\nclear that each party remains free to exercise its\nhonest judgment in deciding upon the measures it\nwill take to help restore and maintain the security\nof the North Atlantic area. The freedom of decision\nBEAULE FORD\n10\nas to what action each party shall take in no way\nreduces the importance of the commitment under-\ntaken. Action short of the use of armed force\nmight suffice, or total war with all our\nresources might be necessary. Obviously article\n5 carries with it an important and far-reaching\ncommitment for the United States; what we may do\nto carry out that commitment, however, will depend\nupon our own independent decision in each particular\ninstance reached in accordance with our own consti\ntutional processes.\nAs for the second issue, the Committee Report recalled\nthat (Id. at p. 14) :\n\"During the hearings substantially the following\nquestions were repeatedly asked: In view of the\nprovision in article 5 that an attack against one\nshall be considered an attack against all, would the\nUnited States be obligated to react to an attack on\nParis or Copenhagen in the same way it would react\nto an attack on New York City? In such an event\ndoes the treaty give the President the power to take\nany action, without specific congressional au-\nthorization, which he could not take in the absence\nof the treaty?\"\nContinuing, the Committee declared that (Ibid.) :\n\"The answer to both these questions is 'No.\n1\n...\n\"In the event any party to the treaty were attacked\nthe obligation of the United States Government would\nbe to decide upon and take forthwith the measures\nit deemed necessary to restore and maintain the\nsecurity of the North Atlantic area. The measures\nwhich would be necessary to accomplish that end\nwould depend upon a number of factors, including the\nlocation, nature, scale, and significance of the\nattack. The decision as to what action was necessary,\nand the action itself, would of course have to be\ntaken in accordance with established constitutional\nprocedures as the treaty in article 11 expressly\nrequires.\n\"Article 5 records what is a fact, namely, that an\nGERALD FORD\narmed attack within the meaning of the treaty would\n11\nin the present-day world constitute an attack upon\nthe entire community comprising the parties to the\ntreaty, including the United States. Accordingly,\nthe President and the Congress, within their\nsphere of assigned constitutional responsibilities,\nwould be expected to take all action necessary and\nappropriate to protect the United States against the\nconsequences and dangers of an armed attack committed\nagainst any party to the Treaty. The committee\ndoes not believe it appropriate in this report to\nundertake to define the authority of the President\nto use the armed forces. Nothing in the treaty,\nhowever, including the provision that an attack\nagainst one shall be considered an attack against\nall, increases or decreases the constitutional\npowers of either the President or the Congress or\nchanges the relationship between them.\" (Emphasis\nsupplied.)\nIn June 1950, in response to the attack by the North\nKoreans upon the forces of the Republic of Korea, the U.N.\nSecurity Council acted under Article 39 of the Charter to call\nupon \"all Members to render every assistance to the United\nNations in the execution of this resolution and to refrain\nfrom giving assistance to the North Korean authorities\" and\nto recommend that \"the Members of the United Nations furnish\nsuch assistance to the Republic of Korea as may be necessary\nto repe1 the armed attack and to restore international peace\nand security in the area. \" The political and Constitutional\nconcerns expressed in the Congress during 1945 which resulted\nin the compromise of section 6 of the United Nations Participation\nAct of 1945 were apparently disregarded by the President when\nhe ordered U.S. forces into combat action in Korea in response\nto the Security Council's request, since the section was\nFORD LiBRARY\n12\ntechnically not applicable to the June 1950 Security Council's\nResolution. The President's \"failure to respect the spirit\nof the 1945 compromise\" was subsequently objected to by Senator\nTaft at the commencement of the \"Great Debate\" on January 5,\n1951 (Congressional Record, vol. 97, p. 54 at pp. 57, 65),\nalthough the well-known State Department legal memorandum of\nJuly 3, 1950, had quoted speeches by Senators Wiley and\nAustin on July 26 and 27, 1945 (i.e., preceding the enactment\nof sec. 6) declaring that the President's obligation to faithfully\nexecute the laws included the U.N. Charter as a whole and that\nhis constitutional power is in no manner \"impaired\" by article 43\nof the Charter (American Foreign Policy 1950-1955, Basic Documents,\nDept. of State pub. 6446, Dec. 1957, Vol. II, p. 2542 at pp.\n2547-2548).\nOn September 9, 1950, the President announced to the press\nthat he had that day \"approved substantial increases in the\nstrength of United States forces to be stationed in Western\nEurope in the interest of the defense of that area\" and that\nthe \"extent of these increases and the timing thereof will\nbe worked out in close coordination with our North Atlantic\nTreaty partners.\" (Ibid., Vol. I, p. 1504). On January 8,\n1951, at the conclusion of the \"State of the Union\" address,\nSenator Wherry introduced S. Res. 8, 82d Congress: \"Resolved,\nGERALD FORD LIBRARD\n13\nThat it is the sense of the Senate, that no Ground Forces\nof the United States should be assigned to duty in the\nEuropean area for the purposes of the North Atlantic Treaty\npending the formulation of a policy with respect thereto\nby the Congress.\" (Congressional Record, Vol. 97, p. 94).\nThe Wherry Resolution was referred to a joint committee\nof the Foreign Relations and Armed Services Committees\nfor hearings which became the focal point of the \"Great\nDebate\". (Assignment of Ground Fdrces of the United States\nto Duty in the European Area, Hearings Before the Senate\nForeign Relations and Armed Services Committees, Feb. 1, 15,\n16, 19, 20, 21, 22, 23, 24, 26, 27, and 28, 1951). During\nhis testimony on the Resolution, Secretary of State Acheson\nwas asked to \"comment as to the power of the Executive to send\ntroops to Europe\". In response, Secretary Acheson filed for\nthe record what he termed \"à very substantial brief in that\nregard,\" which discussed the matter under the following\nheadings:\n\"A. That the President's power to send the\nArmed Forces outside the country is not\ndependent on congressional authority\nhas been repeatedly emphasized by numerous\npublicists and constitutional authorities.\n\"B. It is important to examine some of the\npurposes for which the President as\nBERALD FORD DISTRAM\n14\nCommander-in-Chief has dispatched American\ntroops abroad. In many instances, of\ncourse, the Armed Forces have been used\nto protect specific American lives and\nproperty. In other cases, however, United\nStates forces have been used in the broad\ninterests of American foreign policy.\n\"C. In other cases United States forces have\nbeen used to implement provisions of\ntreaties to which the United States was\na party. It is the President's duty under\nthe Constitution to take care that the laws\nare faithfully executed. That this applies\nto treaties (which are a part of the supreme\nlaw of the land) as well as to statutes is\nunquestioned. As stated by ex-President\nWilliam H. Taft: 'The duty that the\nPresident has to take care that the laws be\nfaithfully executed applies not only to the\nstatutory enactments of Congress but also\nto treaties (The Boundaries Between\nthe Executive, the Legislative, and the\nJudicial Branches of the Government, 25 Yale\nLaw Journal 613).\n\"D. Not only has the President the authority\nto use the Armed Forces in carrying out\nthe broad foreign policy of the United\nStates and implementing treaties, but it\nis equally clear that this authority may\nnot be interfered with by the Congress in\nthe exercise of powers which it has under\nthe Constitution. (Ibid., p. 77 at pp.\n88-93).\nThe \"Great Debate\" concluded on April 4, 1951, with the\nadoption by the Senate of S. Res. 99 by a vote of 69-21\n(and, by a vote of 45-41, of a slightly different resolution\nwhich sought the concurrence of the House of Reprentatives,\nS. Con. Res. 18; Congressional Record, Vol. 97, pp. 3282-\n83, 3293-94). S. Res. 99, 82d Congress, approved the\nFORD\nBERALD\nLIBRARY\n15\nPresident's designation of General Eisenhower as SACEUR and\nhis action \"in placing Armed Forces of the United States in\nEurope under his command\" and, inter alia, resolved that:\n\"6. it is the sense of the Senate that, in\nthe interests of sound constitutional processes,\nand of national unity and understanding, con-\ngressional approval should be obtained of any\npolicy requiring the assignment of American\ntroops abroad when such assignment is in imple-\nmentation of article 3 of the North Atlantic\nTreaty; and the Senate hereby approves the pre-\nsent plans of the President and the Joint Chiefs\nof Staff to send four additional divisions of\nground forces to Western Europe, but it is the\nsense of the Senate that no ground troops in\naddition to such four divisions should be sent\nto Western Europe in implementation of article\n3 of the North Atlantic Treaty without further\ncongressional approval;\" (Emphasis supplied).\nThe kindred formulation of paragraph 6 of S. Res. 99 with\nthe compromise contained 6 years earlier in section 6 of the\nUnited Nations Participation Act of 1945 is striking. The joint\ncommittee had recommended on March 14, 1951, the text of S. Res.\n99 which did not contain in paragraph 6 the final sense of the\nSenate clause commencing with the word \"but\" (S. Rept. No. 175,\nMarch 14, 1951, 82d Cong., 1st sess., p. 3). The joint committee\nreport commented:\n\"Paragraph 6 is limited in scope. It refers\nonly to ground troops sent abroad for the\npurpose of implementing article 3 of the\nNorth Atlantic Treaty. It does not call for\ncongressional approval to send naval or air\nforces abroad. It does not apply to American\ntroops in occupied areas or to armed forces\nsent to Europe under article 5 of the North\nAtlantic Treaty. Nor is it concerned with\narmed forces which the President might send\nabroad under his constitutional powers as\nCommander-in-Chief of the Army and Navy.\nFORD LINELAY\n16\n\"The term 'congressional approval' as used in para-\ngraph 6 is subject to different interpretations.\nOn the one hand, some members of the joint\ncommittee expressed the view that congressional\napproval could only be given by formal legislation.\nOthers believed that both the letter and the\nspirit of paragraph 6 might be met, in certain cir-\ncumstances, as a result of consultation by the\nadministration with, and the approval of, the\nappropriate committees of the Congress. In any\nevent, it should be noted that the resolution\nexpresses the sense of the Senate that con-\ngressional approval should be given; it is not\na legislative mandate.\n*\n*\n\"One of the most perplexing problems that the\njoint committee faced related to the con-\nstitutional authority of the President to send\nAmerican ground forces abroad in time of peace\nto serve as part of an integrated defense\nforce\n\"With the exact line of authority between the\nPresident and the Congress in doubt for the\npast 160 years, the committee did not endeavor\nto resolve this issue definitively at this\ntime\n\"In considering the power of the President\nto send American armed forces abroad, the\ncommittee was aware that his constitutional\nauthority to use our armed forces abroad\nwould be the same whether applied to ground,\nair, or naval forces. It is also understood\nthat General Eisenhower will command all units\n-land, air, or sea--within his jurisdiction.\nThe committee was primarily concerned, however,\nwith the policy with respect to the assignment\nof American ground forces to Europe because of\nthe numbers of men involved and the concern on\nthe part of some individuals that sending\nadditional ground troops now might be but a first\nstep in sending larger contingents to Europe.\n(Emphasis supplied; ibid., pp. 8, 18-19).\nFORD LIBRARY\n17\nWhat was the net result of the \"Great Debate\" of 1951?\nAccording to the Foreign Affairs Division, Legislative Refer-\nence Service of the Library of Congress (1970 Revision of\nBackground Information on the Use of United States Armed\nForces in Foreign Countries, p. 22), it was \"something of a\ndraw\":\n\"Since the Troops-to-Europe resolution was\nadopted, the President has not raised the issue\nof further ground troops for Europe beyond the\nadditional four divisions specified. There has\nthus been no direct test of whether the 'further\ncongressional approval' specified in the resolu-\ntion would in fact have been sought. The 'Great\nDebate' seems to have resulted in something of\na draw between the President and the Congress\n--an occurrence itself which was unusual in a\nlong period of generally declining congressional\npower on the issue vis-a-vis the President.\"\nI should also add my personal observation that in retrospect the\n\"Great Debate\" appears. to have been an academic exercise.\nRegardless of whether the President had the power, without\nCongressional assent, to deploy the armed forces to Europe,\nit is apparent that they could not have been effectively deployed\nfor any substantial length of time without Congressional enact-\nment of specific construction authorizations and appropriations\nfor the facilities required by them in Europe.\nThe next major occasions for Congressional consideration\nof the war power issue were the enactments of the Formosa,\nMiddle East, Cuban, and Gulf of Tonkin Resolutions. An apt\nsummary of the position taken by the Congress as to the language\nBERALD FORD LIBRATE\n18\nof these Resolutions may be found in the Report of the Inter-\nnational Relations Committee on the Middle East Resolution\n(H. Rept. No. 2, 85th Cong., 1st sess., p. 7) :\n\"The division of that power as between the\nexecutive branch and the legislative branch\nis not pertinent here. As was stated in the\ncommittee report on the Formosa resolution:\n\"The committee considered the relation of\nthe authority granted by the resolution\nand the powers assigned to the President\nby the Constitution. Its conclusion was\nthat the resolution in this form, while\nmaking it clear that the people of the\nUnited States stand behind the President,\ndoes not enter the field of controversy as\nto the respective limitations of power in\nthe executive and legislative branches.\nActing together, there can be no doubt\nthat all the constitutional powers necessary\nto meet the situation are present (H. Rept.\nNo. 4, 84th Cong., 1st sess. , p. 4).\n\"This resolution does not detract from or enlarge\nthe constitutional power and authority of the President\nof the United States as Commander in Chief, and the\nlanguage used in the resolution does not do so.\n\"Likewise, the resolution does not delegate or diminish\nin any way the power and authority of the Congress of\nthe United States to declare war, and the language\nused in the resolution does not do SO. \"\nThe \"Great Debate\" was then renewed this past decade as the\nscale of United States involvement in Indochina intensified.\nWhile much of the debate both in the Congress and in other\nforums - focused on questions of policy, the Constitutional\nissues were also prominent. An extensive collection of articles\nand addresses on the subject is contained in the three volume\nseries sponsored by the American Society of International Law,\nGERALD FORD LIBRARY\n19\nentitled \"The Vietnam War and International Law.' Among\nthose included are the Department of State's Memorandum\nof March 4, 1966 on the Legality of United States\nParticipation in the Defense of Viet-Nam (Vol. I, pp. 583-603)\nand the May 1970 address by Mr. Justice Rehnquist-then Assistant\nAttorney General, Office of Legal Counsel, Department of\nJustice--on the Constitutional aspects of the Cambodian\nincursion of 1970. (Vol. III, pp. 163-174).\nAs the debate intensified, two actions were taken by\nthe Congress in 1969. First, the Senate on June 25, 1969,\nadopted S. Res. 85, 91st Congress which resolved that:\n\"(1) a national commitment for the purpose\nof this resolution means the use of the\nArmed Forces of the United States on foreign\nterritory, or a promise to assist a foreign\ncountry, government, or people by the use of\nthe Armed Forces or financial resources of the\nUnited States, either immediately or upon the\nhappening of certain events, and\n(2) it is the sense of the Senate that a\nnational. commitment by the United States re-\nsults only from affirmative action taken by\nthe executive and legislative branches of\nthe United States Government by means of a\ntreaty, statute, or concurrent resolution of\nboth Houses of Congress specifically providing\nfor such commitment.\nIn my view, the National Commitment Resolution is defective in\nseveral respects as a statement of law. First, it is clearly\nBRALD LIMITARY ? FORD\n20\ninaccurate insofar as it implies that the President does\nnot have independent authority under the Constitution to\n\"use\" the armed forces on foreign territory. Certainly,\nif our armed forces abroad are attacked, they may defend\nthemselves in accordance with Presidential directives without\nawaiting adoption of a statute or concurrent resolution;\nsimilarly, no such Congressional action is required as a\npredicate to Presidential use of the armed forces on\nforeign territory if the United States itself is attacked.\nSecond, it is undoubtedly within the President's authority\nto make commitments of future financial assistance, conditioned\nupon the subsequent availability of appropriations for the purpose.\nThird, it should be noted that while concurrent resolutions are\nindicative of Congressional views they are not the law of the\nland and cannot therefore confer upon the President any authority\nthat he does not already have.\nThe second major Congressional action in this sphere was\nthe enactment of the following prohibition in the Department\nof Defense Appropriation Act for fiscal year 1970 (P.L. 91-\n171, sec. 643) :\n\"In line with the expressed intention of the\nPresident of the United States, none of the\nfunds appropriated by this Act shall be used\nto finance the introduction of American ground\ncombat troops into Laos or Thailand.\"\nGERALD ? FORD\n21\nThis prohibition was re-enacted in the subsequent Defense\nAppropriation Acts for fiscal years 1971, 1972 and 1973\n(P.L. 91-668, sec. 843; P.L. 92-204, sec. 742; and P..L. 92-570,\nsec. 741). It was replaced in the Department of Defense Appropria-\ntion Act, 1974 (P.L. 93-238, sec. 741) by the following prohi-\nbition:\n\"None of the funds herein appropriated may be\nobligated or expended after August 15, 1973,\nto finance directly or indirectly combat\nactivities by United States military forces\nin or over or from off the shores of North\nVietnam, South Vietnam, Laos, or Cambodia.\"\nFor enactments similar to this latter one, see also P.L. 93-50,\nsec. 307; P.L. 93-52, sec. 108; P.L. 93-126, sec. 13; P.L. 93-\n189, sec. 31; and P.L. 93-437, sec. 839.\nNo objection on Constitutional grounds was made by the\nPresident to this latter current series of prohibitions (cf\nVeto Message of June 27, 1973 on the Second Supplemental\nAppropriation Act of 1973, H. Doc. No. 93-125, 93d Cong., 1st\nsess.), although such objections were voiced to earlier proposed\namendments aimed at reducing and terminating the U.S. presence\nin Indochina which had failed of adoption. A possible critical\ndistinction between the White House position on those earlier\nriders and the ones which did become law is that the former\npreceded the January 27, 1973 Agreement on Ending the War and\nRestoring Peace in Vietnam and the subsequent withdrawal\nof GERAID FORD LIBRARY\nAmerican forces from the country.\nOn the other hand, the President had made no constitutional\ncomplaint in 1969 against the prohibition on the introduction of\n22\nground combat troops into Laos or Thailand, and, as I recall,\nthat amendment was a compromise text approved in advance by\nthe White House. With due respect to the then White House\nCounsel and Attorney General whom I presume advised the\nPresident on that amendment, it was in my view unconstitutional.\nIf it be assumed that our participation in the on-going hos-\ntilities at that time was lawful under United States law, the\namendment was an impermissible attempt to control the tactical\ndirection of the armed forces in conflict. By way of analogy,\nwould anyone seriously contend that during World War II it\nwould have been constitutionally valid to have prohibited the\nlanding in North Africa or the deployment of troops to\nAustralia?\nBefore turning to the War Powers Resolution, I should\nalso like to call attention to section 847 of the Department\nof Defense Appropriation Act, 1975 (P.L. 93-437), which states\nas follows:\n\"None of the funds appropriated by this Act\nshall be available for use after May 31, 1975,\nto support United States military forces\nstationed or otherwise assigned to duty\noutside the United States in any number\ngreater than 452, 500, not including military\npersonnel assigned to duty aboard United\nStates naval vessels.\"\nOne will look in vain for Constitutional objections, notwith-\nstanding the \"substantial brief & to use Secretary Acheson's\nGERALD FORD LIBRARY\n23\ncharacterization--submitted by the Truman Administration during\nthe \"Great Debate\" of 1951, in the legislative history of this\nlegislative ceiling under which the Department of Defense has\nnow been operating for over three months now. (S. Rept. No.\n93-1104, August 16, 1974, of the Senate Appropriations Committee,\n93d Cong., 2d sess., pp. 11-15.)\nI think it also noteworthy that when President Ford\napproved the Department of Defense Appropriation Act, 1975,\nhe declared:\n\"\nThus, as I sign such a bill for the first\ntime as President, I want to renew my pledge to\nbuild a new partnership between the executive\nand legislative branches of our Government,\na partnership based on close consultation,\ncompromise of differences, and a high regard\nfor the constitutional duties and powers of\nboth branches to work for the common good and\nsecurity of our Nation.\" (Emphasis supplied;\nWeekly Compilation of President Documents,\nVol. 10, No. 41, p, 1250.)\nComing now to the War Powers Resolution, certain features\nthereof warrant highlighting for the purposes of this hearing.\nFirst, it does not deal with the subject matter of the \"Great\nDebate\" of 1951, i.e., the deployment of troops in support of\nthe broad purposes of United States foreign policy; rather it\nis directed at issues left unresolved during the ratification of\nthe North Atlantic and other defense treaties, namely, the\nintroduction of the armed forces into hostilities or into\nsituations where imminent involvement into hostilities is clearly\nFORD 05 LIBRARY\n24\nindicated. But even in this respect, the Resolution reiterates\nthe earlier compromises that \"Nothing in this joint resolution--\nis intended to alter the constitutional authority of the Congress\nor of the President \" (Sec. 8(d)). Second, although sec-\ntion 2 (c) seemingly is a comprehensive definition of the\nPresident's constitutional authority, the legislative history\nof the Resolution demonstrates that it is not so intended.\nThird, the basic structure of the Resolution is a reporting\nrequirement designed to assure that the Congress has an\nopportunity to participate in a collective judgment with\nrespect to the use of the war power. Fourth, the Resolution\nresolves the dispute which flowered during the Indochina\nWar as to whether the Congress could validly authorize United\nStates involvement in hostilities without a declaration of war\n(Secs. 5 (b) and 8(a)). Fifth, and of minor moment, the Resolution\ncontradicts the earlier National Commitment Resolution (Sec.\n8(a)(2)). As for the constitutionality of the Resolution, I\nrefer the Committee to President Nixon's Veto Message cited\npreviously in this Statement.\nAs the Committee knows, there have been 4 reports to the\nCongress under the War Powers Resolution since its enactment.\nThey are dated April 4, 1975, April 12, 1975, April 30, 1975,\nand May 15, 1975.\nBERALD FORD IMPORT\n25\nThe first concerned the evacuation of refugees from\nDanang and other seaports in South Vietnam to safer areas in\nSouth Vietnam. As indicated in that report, the circumstances\nof the incident involved section 4 (a) (2) of the Resolution\nand the action undertaken by our personnel was under the\ncombined authority of the President's constitutional powers\nand pursuant to the Foreign Assistance Act of 1961, as amended.\nThe succeeding three events involved solely the President's\nconstitutional powers. The April 12th action was the evacuation\nof personnel from Cambodia; the April 30th action was the\nevacuation of personnel from Vietnam; and the May 15th incident\nwas the recapture of the Mayaguez and the rescue of its crew.\nA number of legal questions have been raised concerning\nthese 4 reports. These questions have been addressed in letters\njointly signed by the Legal Adviser of the Department of State\nand the former General Counsel of the Department of Defense to\nChairman Zablocki of the House Subcommittee on International\nSecurity and Scientific Affairs and Senator JavitA. Rather\nthan\nunduly lengthen my Statement by repeating their contents, I am\nappending them to the Statement for incorporation in the Record\nof these hearings.\nMr. Chairman, these remarks conclude my prepared testimony.\nMr. Abramowitz is with me to provide. answers to such factual\nquestions as you may have concerning these War Power Resolution\nreports.\nGERALD FORD LIBRATY\nDEPARTMENT OF STATE\nWashington, D.C. 20520\n3 June 1975\nThe Nonorable Clement J. Zablocki\nChairman, Subcommittee on International\nSecurity and Scientific Affairs\nHouse of Representatives\nWashington, D.C. 20515\nDear Mr. Chairman:\nWe are writing in response to your letters to\nus of May 9, 1975, requesting amplification of our\ntestimony before your Subcommittee on May 7.\nEnclosed is a memorandum which responds to\nquestions asked by members of the Subcommittee during\nour testimony. Although this memorandum may also\nanswer a few of the questions raised in your recent\nletter, we shall also address each of your questions\nindividually.\n1. Your first question inquires as to our\nworking definition of the word \"hostilities\" in\nsection 4 (a) (1) of the War Powers Resolution. We\nare, of course, aware of the comments made by the\nCommittee on page 7 of H. Report 93-287, wherein the\nCommittee attempted a general definition of that word,\nwhich had its origin in the Senate version of the\nResolution. Even as so defined, however, there is\nof necessity a large measure of judgment which is\nrequired. We note in this connection that even when\nmeasured against certain past events, differing\nviews as to when hostilities commence were expressed\nduring the Hearings before the Committee in 1973.\nSee for example the colloquies between Representatives\nBingham and DuPont and Senator Javits on pages 16-17\nand 21-22 of the Hearings. You will also recall\nProfessor Bickel's response to Mr. DuPont, with\nrespect to the definition of \"hostilities\" that:\nGERALD FORD LIBRARY\n-2-\n\"There is no way in which one can define\nthat term other than a good faith under-\nstanding of it and the assumption that in\nthe future Presidents will act in good\nfaith to discharge their duty to execute\nthe law. \" (Hearings, at 185)\nWhether \"imminent involvement in hostilities\"\nis clearly indicated by the circumstances is similarly,\nin our view, defináble in a meaningful way only in the\ncontext of an actual set of facts. To speculate about\nhypothetical situations is possible but would not seem\ndesirable. Reasonable men might well differ as to the\nimplications to be drawn from any such hypothotical\nsituation. In this connection, you will no doubt\nrecall the uncertainty of some members of the Congress\nas to whether the military alert of October 24, 1973\ntriggered the reporting provisions of the War Powers\nResolution, and the conclusion expressed by you on\nthe Floor on April 9, 1974 (Congressional Record, at\nH. 2726) that hostilities had not been imminent and\nthat a report had not been required.\nSubject to the foregoing caveats, we turn to\nour working definitions of these terms. As applied\nin the first three war powers reports, \"hostilities\"\nwas used to mean a situation in which units of the\nU.S. armed forces are actively engaged in exchanges\nof fire with opposing units of hostile forces, and\n\"imminent hostilities\" was considered to mean a\nsituation in which there is a serious risk from\nhostile fire to the safety of United States forces.\nIn our view, neither term necessarily encompasses\nirregular or infrequent violence which may occur in\na particular area.\nYou also ask which of the first three war\npowers reports referred to situations involving\nhostilities. In our view, the April 30, 1975\nreport refers to a situation where at least one\nincident of hostilities existed (see point 5\nbelow); and in the Cambodia evacuation referred\nto in the April 12, 1975 report, an imminent\nGERALD R. FORD LIBRARY\n-3-\ninvolvement in hostilities may have existed (as to\nthe factors that would enable one to reach it\nconclusion on whether hostilities did in fact exist,\nsee point 4 below). The April 4, 1975 report\nconcerning the Danang evacuation, however, does not\nrefer to a situation where hostilities existed.\n2. Your letter uses the term, \"a Section 1\nreport.\" As WC read the War Powers Resolution,\nsection 1 does not call for different types of reports\ndepending on whether U.S. armed forces are introduced\nunder subparagraphs (1), (2) or (3) of section 1 (a).\nInstead, section 4 seems to require only that \"a\nreport\" be filed in any of the subparagraph (1), (2)\nor (3) situations, and that such report merely contain\nthe information specified in subparagraphs (7), (B)\nand (C).\nIt seems that the real thrust of the question is\nwhy the President in his April 30, 1975 report referred\nto section 1 in general, and not to any particular\nsubparagraphs in that section. We presume that the\nPresident did so because the events giving rise to\nthat report did not seem to be limited to just one of\nthe three subparagraphs in section 1 (a).\nThus, although the events as known at that time\nindicated that hostilities may have existed between\nU.S. and communist forces, U.S. forces \"equipped for\ncombat\" were also introduced in the \"territory, air-\nspace or waters\" of South Victnam -- the situation\napparently provided for in section 1 (a) (2).\nFurthermore, since the operation had terminated\nby the time the report was prepared, the question of\npossible congressional action under section 5 of the\nResolution was moot; thus, a specific reference to\n4 (a) (1) was not needed to call attention to possible\naction under section 5.\n3. Your letter refers to the President's\nauthority as Commander-in-Chief. The three war\npowers reports you referred to all cite two sources\nof authority: Article II, Section 1 of the Constitution\nFORD & LIBRARY 03\n-1-\nwhich provides that the \"executive Power shall be\nvested\" in the President, and the Commander-in-Chief\nclause (Article IL, Section 2).\nWith respect to the Commander-in-Chief clause,\nwe do not believe that any single definitional\nsentence could clearly encompass every aspect of the\nCommander-in-Chief authority. This authority would\ninclude such diverse things as the power to make\narmistices, to negotiate and conclude cease-fires,\nto effect deployments of the armed forces, to order\nthe occupation of surrendered territory in time of\nwar, to protect U.S. embassies and legations, to\ndefend the United States against attack, to suppress\ncivil insurrection, and the like.\nWith respect to the specific question of\nprotecting and rescuing U.S. citizens, the enclosed\nmemorandum contains a discussion of both court\nopinions and historical precedents on this subject.\n4. You refer to a portion of the April 12,\n1975 report on the Cambodia evacuation which notes that\nthe \"last elements of the force to leave received\nhostile recoilless rifle firc.\" Whether or not this\nrifle fire constituted hostilities would seem to us to\ndepend upon the nature of the source of this rifle\nfire -- i.c., whether it came from a single individual\nor from a battalion of troops, the intensity of the\nfire, the proximity of hostile weapons and troops to\nthe helicopter landing zone, and other evidence that\nmight indicate an intent and ability to confront U.S.\nforces in armed combat. Our information concerning\nthe source of this rifle fire is not sufficiently\ndetailed to enable one to draw a conclusion as to\nwhether this clearly amounted to \"hostilities.\"\n5. Your letter notes that the April 30, 1975\nreport relating to the Saigon evacuation indicates\n(a) that U.S. fighter aircraft \"suppressed North\nVietnamese anti-aircraft artillery firing on evacua-\ntion helicopters,\" and (b) that U.S. ground forces\nreturned fire during the course of the evacuation.\nThe first situation on its face constituted \"hostilities.\"\nGERALD FORD LIBRARY\n-5-\nThe evidence concerning the second situation is\ninconclusive as to whether the fire was of\nsufficient intensity so as to be part of a purpose-\nful confrontation by opposing military forces; but in\nvicw of the actions of the U.S. fighter aircraft, a\ncharacterization of the second situation may be\nacademic. In any event, as discussed under point\nnumber 2 above, there were other circumstances\npresent in the evacuation operation which precluded\na conclusion that section 1 (a) (1) alone, and no\nother provision of section 4, pertained to the\noperation.\n6. The two marines who were killed at Tan Son\nNhut airport the day before U.S. forces entered South\nVietnamese airspace were not a part of the evacuation\nforce. They were members of the marine guard at the\nAmerican Embassy and were, at the time of their death,\non regular duty in the compound of the Defense Attache\nOffice which was located at the airport. As you know,\nan evacuation effort not involving our combat troops\nhad been conducted for some time prior to the introduc-\ntion of the evacuation forces. The fact that those\nmarines, rather than civilian members of the Embassy,\nwere killed was fortuitous and not a consequence of\nthe introduction of the evacuation force.\n7. The loss of the Navy helicopter was not\ndirectly related to the evacuation operation. Our\nunderstanding is that the helicopter was at the time,\nin accordance with standard operating procedures,\ninvolved in an ordinary search and rescue holding\npattern near its home aircraft carrier. The purpose\nof its mission was to provide assistance to aircraft\nand helicopters that were participating in the\nevacuation operation, should such assistance become\nnecessary. The helicopter crashed in the immediate\nvicinity of the carrier. The cause of the crash is\nnot known, and the bodies of the crew were not\nrecovered.\n8. Your letter notes that the first three war\n\"\npowers reports contain the phrase \"taking note of\nYou inquire whether this suggests anything other than a\nGERALD R. FORD LIBRARY\n-6-\nfull binding legal responsibility upon the President.\nThis phrase connotes an acknowledgement that the\nreport is being filed in accordance with section 4\nof the War Powers Resolution. No constitutional\nchallenge to the appropriateness of the report called\nfor by section 4 was intended. As you are aware,\nPresident Nixon in his veto message of October 24,\n1973 indicated that portions of the War Powers\nResolution, including sections 5 (b) and 5 (c), are\nunconstitutional. No such position was expressed as\nto section 4.\nWe hope we have covered each of the points\nraised not only in your letter, but also during our\ntestimony before the Subcommittee on May 7. Please\naccept again our appreciation for the Subcommittee's\ncareful inquiry into these very complex legal and\nconstitutional questions;\nSincerely,\nNonse\nMonroe Leigh\nMartin R. Ho finam\nLegal Adviser\nGeneral Counsel\nDepartment of State\nDepartment of Defense\nEnclosure:\nMemorandum.\nR. FORD LIBRARY\nTHE PRESIDENT'S AUTHORIT\nTO USE THE ARMED FORCES TO EVACUATE\nU.S. CITIZENS AND FOREIGN NATIONALS\nFROM AREAS OF HOSTILITY\n1.\nThe Constitutional Authority of the President\nFrom the time of Jefferson to the present, American\nPresidents have exercised their authority under the\nConstitution to use military force to protect U.S.\ncitizens abroad. Instances where this authority has\nbeen exercised in the absence of any legislative\naction include the Boxer Rebellion in China in 1900,\nand the landing of Marines in Nicaragua in 1926.\nDuring the Congo crisis of 1964 and the Dominican\nIntervention of 1965, large numbers of foreign national:\ntogether with U.S. citizens were evacuated in military\nactions ordered by the President. A sample listing\nof occasions when Presidents have exercised authority\nto direct evacuations of Americans and of foreign\nnationals is attached as Appendix A to this memorondum.\nThe first explicit judicial recognition of this\nauthority appears to be the U.S. Circuit Court\ndecision in Durand V. Hollins, 8 Fed. Cas. 111, 112\n(1860). This was a suit against a navy commander for\ndamages caused by his forces during an action to pro-\ntect U.S. citizens in Greytown, Nicaragua in 1854.\nThe court found that since the military action was\npursuant to a valid exercise of presidential authority,\nthe navy commander was not liable:\nNow, as it respects the interposition of\nthe executive abroad, for the protection\nof the lives or property of the citizen,\nthe duty must, of necessity, rest in the\ndiscretion of the President. Acts of\nlawless violence, or of threatened violence\nto the citizen or his property, cannot\nbe anticipated and provided for; and the\nprotection, to be effectual or of any\navail, may, not unfrequently, require\nthe most prompt and decided action.\n***\nR. FORD LIBRARY\nThe question whether it was the duty of: the\npresident to interpose for the protection\nof the citizens at Greytown against an\nirresponsible and maranding community\nthat had established itself there, was\nil public political question, in which the\ngovernment, as-well as the citizens whose\ninterests were involved, was concerned,\nand which belonged to the executive to\ndetermine; and his decision is final and\nconclusive, and justified the defendant\nin the execution of his orders given\nthrough the secretary of the navy.\n(Emphasis added.)\nThe Supreme Court in In Re Neagle, 135 U.S. 1,\n63-64 (1889), noted that the President had certain\nexclusive \"rights, duties and obligations growing out of\nthe Constitution itself\" which included an implied\nobligation to protect U.S. citizens abroad. The Court\nthen referred to a military action to protect one\nMartin Koszta, a foreign national who had merely\nindicated his intent to become a naturalized U.S.\ncitizen:\nWhile in Smyrna he [Koszta] was seized by\ncommand of the Austrian consul general at\nthat place, and carried on board the\nHussar, an Austrian vessel, where he was\nheld in close confinement. Captain Ingraliam,\nin command of the American sloop of war\nSt. Louis, arriving in port at that critical\nperiod, and ascertaining that Koszta\nhad with him his naturalization papers,\ndemanded his surrender to him, and was\ncompelled to train his guns upon the Austrian\nvessel before his demands were complied\nwith. It was, however, to prevent blood-\nshed, agreed that Koszta should be placed\nin the hands of the French consul subject\nto the result of diplomatic negotiations\nbetween Austria and the United States.\nThe celebrated correspondence between\nMr. Marcy, Secretary of State, and Chevalier\nHulsemann, the Austrian minister at Washington,\nresulted in the release and restoration\nto liberty of Koszta\nUpon what act of\nCongress then existing can one lay his\nfinger in support of the action of our\ngovernment in this matter?\n&\nFORD\nSEAL\nLIBRANT\nSee also the Slaughterhouse Cases, 83 ..S. 79 (1872)\nwhere the Supreme Court said that one of the privileges\nand immunities of a U.S. citizen \"is to demand the\ncare and protection of the Federal Government over\nhis life, liberty, and property when on the high\nseas 0.1° within the jurisdiction of a foreign government.\"\nThe nature and basis of the President's authority\nwas succinctly stated by President Taft in 1916, followings\nthe termination of his term in office:\nHe Ithe President] has done this [used\nmilitary force to protect Americans] under\nhis general power as Commander in Chief.\nIt grows not out of any specific act of\nCongress, but out of that obligation,\ninferable from the Constitution, of the\nGovernment to protect the rights of an\nAmerican citizen against foreign aggres-\nsion\n\" (William Howard Taft, The\nPresident and His Power, (1967) P. 94-95\n(originally published in 1916) )\nThis remains the position of the executive branch.\n2.\nEffect of Statutes Restricting Use of Funds\nin Indochina\nWe do not believe that any conflict exists between\nthe President's constitutional authority to take\nmilitary action for the limited purpose of protecting\nAmerican lives, and the various statutes which have been\nenacted since June of: 1973 prohibiting the use of\nappropriated funds for the introduction of U.S. forces\ninto hostilities in Indochina.\nThe legislative history to these statutes indicate\nthat they were not: intended to circumscribe the President's\nconstitutional authority to protect the lives of U.S.\ncitizens abroad.\nDuring the floor debate on the Addabbo Amendment 10 the\nContinuing Appropriations Resolution for Fiscal Year 1974\n----\none of the carliest fund limitation provisions -- the\nHouse Minority Leader inquired whether the amend-\nment would affect the President's ability to protect\n\"the lives of American civilians\" in Indochina. Congress-\nman Addabbo responded as follows:\nBERALE n. FORD LIBRARY\nThe !!! theman from Nichigan is speaking\nof pro :tive action. I am speal Ig of\ndirect combat action by our forces. We\nare not: amending the Constitution here\nthis afternoon; we are taking a con-\ngressional prerogative. The President\nstill has, as Commander in Chief, cer-\ntain war powers and if any place in this\nworld our forces are threatened or\nattacked he can move for the moment\n\"\nRepresentative Ford then asked if it was correct \"that\nthe President as Commander in Chief has certain\nconstitutional military responsibilities\" which were\nbeyond the scope of the funds limitation provision.\nCongressman Addabbo responded, \"His rights under the\nConstitution as Commander in Chief, yes\". 119 Cong.\nRec. 21313 (June 26, 1973).\nOn August 3, 1973 --- after the first of these\nstatutes was enacted but before their effective date ---\nAdmiral Moorer, then Chairman of the Joint Chiefs\nof Staff, said in executive! session testimony before\nthe Senate Foreign Relations Committee:\n\" [T] he only time that I think J. said\nwe might\nuse retaliatory fire was in\nthe event WC were trying to rescue\nAmericans. I think you accept that as\nbeing -- I do --- a world wide authority\nwhen we get into that type of crisis. 11\nChairman Fulbright then said that he recognized the\nPresident had such authority to rescue Americans, though he\nalso suggested that the U.S. should not create a situation\nmaking such action necessary. Testimony of Admiral\nMoorer before the Senate Foreign Relations Committee,\nAugust 3, 1973, page 40.\nOne might ask, if Presidential authority for evacuating\nU.S. citizens is so clear, why was the Congress asked to\nenact legislation clarifying that authority for the\nrecent Indochina evacuations? A major consideration\ninvolved the national concern and controversy over the\nUnited States' overall role in Indochina, and the\ndesire that any evacuation be supported by Congress\nas well as by the constitutional authority of the\nPresident. The protection of American citizens, the\nSTATE\nLIBRARY\nexecutive branch believed, should not be subject 1.0\npotential disputes over interpretation of the Con-\nstitution or of the various statutes relating to\nIndochina.\nA second reason involved the intimate relation-\nship between evacuating Victnamese nationals and\nevacuating U.S. citizens. IL was determined that if\nsubstantial numbers of Vietnamese were not evacuated as\npart of a plan to evacuate Americans, the rescue of\nAmericans would have been immediately and seriously\njeopardized. Moreover, the United States had some\nresponsibility to many Vietnamese who had long been\nassociated with the United States.\nIt was clear that the various statutes restricting\nU.S. involvement in hostilities in Indochina did not\napply to the evacuation of foreigners in situations\nwhere involvement by U.S. armed forces in hostilities\nwas not imminent. Also, the President's constitutional\nauthority to reseue foreign \"nationals as an incident\nto the evacuation of Americans had significant historical\nsupport. But since the evacuation of Vietnamese might\nhave raised questions beyond those applicable to an\noperation limited to Americans, the support and clarifica\ntion of Congress Was sought in the President's address to\nCongress on April 10, 1975.\nFORD - LIBRARY 03\nAPPENDIX A\nInstances where U.S. Armed Forces Have\nBeen Directed to Protect U.S. Citizens\nWithout Congressional Authorization\n1. Following the burning of the American and\nBritish legations in Japan in 1863, the U.S. minister in\nJapan was instructed to direct the Commander of the USS\nWyoming to use \"all necessary force\" to insure the\nsafety of Americans residing in Japan.\n2. In 1868 a detachment of Japanese troops assaulted\nforeign residents including some Americans in the city\nof Hiogo. Naval forces of the United States and other\nWestern powers made a joint landing to protect the\nforeign settlement.\n3. In 1889, U.S. naval forces in the Pacific were\nordered to extend full protection and defense to American\ncitizens and foreigners in Samoa who were threatened by\ncivil war in that island.\n1. In 1900, approximately 2,500 U.S. troops were\nsent to join an international military force organized\nto protect foreign citizens and logations in Peking\nduring the \"Boxer Rebellion\" in China. At the request\nof Norway and Sweden, the U.S. minister in China was\ninstructed to extend \"all possible proper protection\" to\nSwedish and Norwegian missionaries attached to American\nmissions in China.\n5. In 1927, Nationalist soldiers in Nanking. China\nattacked Americans and other foreigners. On March 22 of\nthat year, eleven men from the USS Non were landed to\nprotect the American Consulate. Additional forces were\nsent from the USS Preston to protect Americans and\ntheir property. The next month, 24 marines were\nlanded at Hankow to protect an American business firm\nand in December, during il rebellion in Canton, marines\nwere sent ashore to assist in the evacuation of Americans.\nBy the end of 1927, the United States had 44 naval\nvessels in Chinese waters and 5,670 men ashore.\nBERALD R. FORD LIBRARY\n6.\nw\nlocal disturbances bro' out in Nicaragua\nin 1926, th. government of that country requested that\nAmerican forces undertake to protect the lives and pro-\nperty of Americans and other foreigners in Nicaragua.\nA U.S. naval commander was then instructed to establish\nneutral zones in Nicaragua to protect \"lives and pro-\nperty of Americans and foreigners.\" In May of that\nyear, a force of marines was landed for the purpose\nof establishing a neutral zone. Additional neutral\nzones were established later in the year. The American\nmilitary presence in Nicaragua continued until 1933.\n7. In 1961, more than 1000 civilians of 18\nnationalities, including Americans, were held as\nhostages by Congolese rebels near Stanleyville. With\nthe authorization of the Government of the Congo, U.S.\nmilitary transport planes landed Belgian paratroops\nin Stanleyville who effected a rescue during il four\njoint operation. Some of the foreign hostages had\nbeen killed by the rebels, including three Americans.\n8. In 1965, President Johnson ordered U.S. armed\nforces to land in the Dominican Republic to evacuate\nAmericans and foreign nationals. The U.S. Embassy\nin Santo Domingo had reported that the Dominican\nGovernment was unable to guarantee the safety of\nAmericans and other foreigners during the insurrection\nthen taking place. Between April 28 and May 9, 1975,\n2711 Americans and 1726 other foreign nationals\nwere evacuated.\nFor additional examples, see \"Authority of the\nPresident to Repel the Attack in Korca\", 23 Department\nof State Bulletin, 173 (1950) ; Memorandum of the\nSolicitor for the Department of State, October 5, 1912,\n\"Right to Protect Citizens in Foreign Countries by\nLanding Forces\", (2d ed., 1929); \"Power of the\nPresident to Send the Armed Forces Outside the United\nStates\", Committee print prepared for the Joint\nCommittee made up of the Committee on Foreign Relations\nand the Committee on Armed Services of the Senate,\nFebruary 28, 1951, 82 Congress, 1st session.\nGERALE FORD LIBRARY\nGENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE\nWASHINGTON, D. C. 20301\n23 JUN 1975\nHonorable Jacob K. Javits\nUnited States Senate\nWashington, D.C. 20510\nDear Senator Javits:\nThis letter responds to your notes of June 4, 1975 to Secretary\nSchlesinger and myself forwarding a copy of your recent Statement\nbefore Congressman Zablocki's Subcommittee of the House Inter-\nnational Relations Committee with respect to the functioning of the\nWar Powers Resolution. We welcome your invitation to comment\non your testimony.\nMany of the issues raised by you were addressed by me and by\nMr. Monroe Leigh, the State Department Legal Adviser, in our\nown testimony before that Subcommittee. Our testimony was also\nsupplemented by a subsequent joint letter to Congressman Zablocki,\nresponding to a number of questions asked by him of us at the\nconclusion of our testimony. A copy of that joint letter is enclosed\nfor your convenience.\nAs you note in your Statement, a major portion of your remarks is\ndevoted to the problem of consultation. In large measure, you\ncriticize the substance of the consultations as well as the procedure\nfollowed. Not having been present during those consultations, it\nwould be inappropriate for me to comment on the adequacy thereof.\nWith respect to the procedures for consultation, it is my view that\nthe Congressional decision not to specify such procedures in section\n3 of the War Powers Resolution was eminently sound. It correctly\nrecognizes that circumstances may be such as to preclude the\npossibility of holding the formal meetings of the Foreign Relations\nand International Relations Committees which your statement\ncontemplates.\nInsofar as concerns the format and mode of delivery of the four\ninitial reports under the War Powers Resolution, I cannot agree\nSERVICE R. FORD TIBRARY\n2\nwith your conclusion that they are \"questionable in law\". In this\nrespect, your Statement first complains that the reports are cast\nin the form of a personal letter to the Speaker of the House and\nthe President Pro Tempore of the Senate. As you know, however\nsection 4(a) of the War Powers Resolution specifically requires\nthat the reports be submitted to the Speaker and the President\nPro Tempore. Further, these four initial reports follow the\ncustomary format of other executive communications to the\nSpeaker and the President Pro Tempore; see, for example,\nHouse Document No. 94-142, printing a letter dated May 9, 1975\nfrom the President to the Speaker, complying with the notification\nrequirement of section 652 of the Foreign Assistance Act of 1961,\nas amended. As to the objection that reports were delivered to the\nresidences of the Speaker and the President Pro Tempore, rather\nthan to their official offices at the Capitol, it should be observed\nthat (1) the timing for submittal of:a report may be such that the\nexpiration of the statutory 48-hour period occurs at a time of day\nor night when the offices at the Capitol of these officials are closed,\nand (2) the full 48 hours (or most of that period) may be required\nfor the collection of available information to be included in the re-\nport and for the preparation of the report. In this connection, you\nwill recall that, in the case of the first report, the 48-hour period\nbegan to run at 0400 a. m. EDT on April 3, 1975; the President was\nin California; the report was telegraphed at 2149 p.m. EDT on\nApril 4, 1975; and, further, that the Congress was not in session.\nFurthermore, a record copy of each notification was provided to cach\nHouse of the Congress as a formal matter. See the following pages\nin the Congressional Record (daily ed.) for acknowledgment of the\nreceipt of these formal notifications: S5279-S5280 and H2465,\nApril 7, 1975; S5872 and H2706-H2707, April 14, 1975; S7297 and\nH3592, May 1, 1975; S8268 and H4080-H4081, May 15, 1975.\nAs to your observation that the reports were \"brief to the point of\nbeing in minimal compliance with the content requirements set forth\nin the law\", I can only note again that circumstances may be such\nthat complete information is not available within 48 hours. You will\nno doubt recall in this connection the uncertainty which persisted for\nseveral days as to the extent of the casualties incurred in connection\nwith the Mayaguez. Moreover, I cannot accept the inference made\nSEAL FORD LIBRARY\n3\nby you that these reports \"do not suggest a readiness within the\nExecutive Branch to provide the full and timely disclosure of\nrelevant facts and judgments\n11 It is my understanding that\nwe have honored every reqüest from Congressional committees for\namplifying information.\nOn the afternoon of May 14, 1975, prior to the initiation of the assault\non Koah Tang, the Assistant Secretary of Defense (Legislative Affairs)\nand a representative of the Chairman, Joint Chiefs of Staff, briefed\nthe Chairmen of the Senate and House Armed Services Committees,\nas well as the Senate Foreign Relations Committee in closed session.\nI understand you participated in that briefing session. On May 15, 1975\nwhen the President made his report under the War Powers Resolution,\nthese men briefed the House International Relations Committee and\nthe House Defense Appropriations Subcommittee.\nI am enclosing a copy of a detailed chronology of the Mayaguez\nincident. With respect to the factual allegations contained in your\ntestimony on the Mayaguez, I respectfully submit that many of these\nallegations are in error. In particular,\n- The amphibious assault by the Marines was made on the\nright island. Koah Tang was within weapons range of\nMayaguez and would have required neutralization by\nassault or otherwise even if we were convinced that\nthe crew was not on the island. In fact, we believed\nthat it was likely that the crew was on the ship or\nthe island or the mainland or parts of all three places.\n- The assault on Koah Tang began not 20 minutes after the\nrelease of the crew was made known, as the testimony\nsuggests, but with the arrival of assault helicopters\nin the airspace off the shore of Koah Tang at about\n7:09 p.m. EDT, 14 May, long before the return of the\ncrew to US control which took place at about 11:15 p.m.\non that date.\n- The insertion of the first assault wave was completed\nat 8:15 p.m. EDT, 14 May, while the boat containing\nthe Mayaguez crew was not spotted until 10:23 p.m.\nAs a practical matter, when a helicopter crashed on\nthe beach at Koah Tang at 7:45 p.m., we were irrevocably\ncommitted.\n- US losses were 18-KIA/MIA.\nR. FORD LIBRARY\n3\nby you that these reports \"do not suggest a readiness within the\nExecutive Branch to provide the full and timely disclosure of\nrelevant facts and judgments\n\" It is my understanding that\nwe have honored every reqüest from Congressional committees for\namplifying information.\nOn the afternoon of May 14, 1975, prior to the initiation of the assault\non Koah Tang, the Assistant Secretary of Defense (Legislative Affairs)\nand a representative of the Chairman, Joint Chiefs of Staff, briefed\nthe Chairmen of the Senate and House Armed Services Committees,\nas well as the Senate Foreign Relations Committee in closed session.\nI understand you participated in that briefing session. On May 15, 1975\nwhen the President made his report under the War Powers Resolutions\nthese men briefed the House International Relations Committee and\nthe House Defense Appropriations Subcommittee.\nI am enclosing a copy of a detailed chronology of the Mayaguez\nincident. With respect to the factual allegations contained in your\ntestimony on the Mayaguez, I respectfully submit that many of these\nallegations are in error. In particular,\n- The amphibious assault by the Marines was made on the\nright island. Koah Tang was within weapons range of\nMayaguez and would have required neutralization by\nassault or otherwise even if we were convinced that\nthe crew was not on the island. In fact, we believed\nthat it was likely that the crew was on the ship or\nthe island or the mainland or parts of all three places.\n- The assault on Koah Tang began not 20 minutes after the\nrelease of the crew was made known, as the testimony\nsuggests, but with the arrival of assault helicopters\nin the airspace off the shore of Koah Tang at about\n7:09 p.m. EDT, 14 May, long before the return of the\ncrew to US control which took place at about 11:15 p.m.\non that date.\n- The insertion of the first assault wave was completed\nat 8:15 p.m. EDT, 14 May, while the boat containing\nthe Mayaguez crew was not spotted until 10:23 p.m.\nAs a practical matter, when a helicopter crashed on\nthe beach at Koah Tang at 7:45 p.m., we were irrevocably\ncommitted.\n- US losses were 18-KIA/MIA.\nGERALD R. FORD LIBRARY\n1\nThe attack missions against the mainland were flown\nagainst i) petroleum storage facility, not against a\nrefinery. Indeed there was no refinery. The\nCambodian aircraft struck were attacked in the firm\nbelief, both then and now that some or all of them\nwere operational. These operations were intended to\nensure that Koah Tang Island was not reinforced during\nthe operation to reseue the crew, and during the\nsubsequent withdrawal of American Mariner from the\nisland.\n-\nThere was no standard warning being given chips as to\ndangers in this area which was not also given to the\nMayagnes,\nI to ust that the foregoing comments, and the enclosures, : re responsivo\nto the concerns you have expressed. We are. of course, cratified by\nyour assessment that the procedured established in the law orlied\nreasonably well in these instances.\nSincerely yours,\nSigned Martin R, Hoftburn\nMartin R. Hoffmann\nEnclosures\nas\nFORD in 03 LIBRARY\nfile Nar Powers\nTHE WHITE HOUSE\nWASHINGTON\nAugust 5, 1976\nMEMORANDUM FOR:\nPHIL BUCHEN\nFROM:\nPlease note the attached. Monroe Leigh gave me a call\nJACK June MARSH\nand indicated that they had had some inquires from\nSenator Javits' Office about the observance of the War\nPowers legislation in reference to the Lebanese evacua-\ntions.\nMonroe was not aware of the notifications of the House\nand Senate Leadership which we had made and I offered to\nsend him copies of our reports on the same.\nMany thanks.\nBERAU N. FORD LIBRARY\nAugust 5, 1976\nMEMORANDUM FOR:\nMONROE LEIGH\nFROM:\nJACK MARSH\nAttached are copies of the reports on the Congressional\ncontacts we made in reference to both of the Lebanese\nevacuations.\nAs you know, we keep a very close hold on these, and I\nwould appreciate your maintaining their confidentiality.\nMany thanks.\nCC: Phil Buchen\nJOM/d1\nFORD - LIBRARY\nTHE WHITE HOUSE\nwashington\nKen\nGleasengrare\na memo fels\nme tosend on.\nR\nTHE WHITE HOUSE\nNar\nWASHINGTON\nAugust 18, 1976\nMEMORANDUM FOR:\nJACK MARSH\nFROM:\nPHIL BUCHEN P.\nSUBJECT:\nWar Powers Resolution\nThis is in response to your memorandum of August 3,\nrequesting my views on the advisability of seeking\na court determination regarding the constitutionality\nof the War Powers Resolution. For the reasons discussed\nbelow, I would not encourage the recommendation advanced\nby Senator Goldwater for such a determination.\nBACKGROUND\nThe War Powers Resolution [Pub. L. 93-148;H.J.Res. 542,\n93d Cong., 2d Sess. (1973) ] was enacted by Congress on\nNovember 7, 1973, over the veto of former President\nNixon. Never before had Congress undertaken to codify\nor define rules applicable to the introduction of\nUnited States armed forces into war or threatened war.\nThe announced purpose of the resolution, set forth in\nSec. 2(a), is:\n***\n\" . to insure that the collective\njudgment of both the Congress and\nthe President will apply to the intro-\nduction of United States Armed Forces\ninto hostilities, or in situations\nwhere imminent involvement in\nhostilities is clearly indicated by\nthe circumstances, and to the continued\nuse of such forces in hostilities or in\nsuch situations.\"\n***\nBERAU R. FORD LIBRARY\n- 2 -\nSection 2 (c) expresses a congressional understanding\nthat the \"constitutional powers of the President as\nCommander-in-Chief\" to commit military forces exist\nonly when: (1) Congress has declared war, (2)\nlegislated specific authority, or (3) the United\nStates is under attack.\nSection 3 provides that the President will consult\nwith Congress \"in every possible instance\" before\neach use of armed forces in hostilities or threatened\nhostilities and regularly thereafter, until United\nStates forces are disengaged or removed from such\nsituations. The applicability of the resolution is\ninitiated by Sec. 4, which requires that, absent a\ndeclaration of war, whenever United States armed\nforces are introduced (1) into hostilities or\nimminent hostilities; (2) into the territory, air\nspace, or waters of a foreign nation, when equipped\nfor combat (other than solely for the supply, replace-\nment, repair or training of forces) ; or (3) in numbers\nwhich substantially enlarge United States forces\nequipped for combat already located in a foreign\nnation, the President must report it in writing to\nCongress within 48 hours and periodically afterwards.\nIt is significant that situations (2) and (3) are\nnot tied to the actual outbreak of or imminent involve-\nment in hostilities, but restrict the mere deployment\nof combat forces into another country, whether or not\nhostilities might be anticipated. Even the strengthening\nof units already located in foreign countries is\nsimilarly restricted.\nOnce the reporting provision has been triggered, Sec. 5\ntakes effect. This section mandates that no later than\n60 days after a report is required, \"the President shall\nterminate any use of United States Armed Forces with\nrespect to which such report was submitted (or required\nto be submitted) , \"unless Congress grants specific\nauthority for the operation to continue or \"is physically\nunable to meet as a result of an armed attack upon the\nUnited States. \" The 60-day period can be extended for\nan additional 30 days if the President determines and\ncertifies to Congress that the safety of United States\ntroops demands their continued use in the course of\nbringing about their prompt removal.\nFORD in LIBRARY CAMES\n-3-\nDISCUSSION\nSenator Goldwater and others have argued that the War\nPowers Resolution represents a legislative encroachment\nupon the President's exclusive constitutional province\nin violation of the Commander-in-Chief clause [Art. II,\nSec. 2, cl. 1]. It is not clear whether their argument\nrelates only to the effects of Section 5 or whether it\nalso relates to the requirements that the President must\nconsult with Congress and must report concerning the use\nof armed forces when there has been no declaration of war.\nAs you know, on a number of occasions, most notably the\nMayaguez incident, President Ford has directed military\noperations which came within the purview of the War\nPowers Resolution. A practice has developed in these\ninstances which is neither cumbersome nor unseemly. The\npractice calls for the President to provide the Congress\nwith notice of troop movement and to consult with members\nof the Congressional leadership on the general nature of\nthe problem and his intended solution. Although noting\nthe War Powers Resolution, the President has, for the\nrecord, consistently relied solely on his constitutional\npowers to effect these actions (see attachment)\nTherefore, I see no point in trying to challenge the\nconsultation and notification procedure of the resolution.\nHowever, the more serious objection is Section 5 which\nrequires the President to terminate military action after\na specified period unless the Congress grants specific\nauthority to continue the operation. It is possible to\nimagine a situation where the President would want to\ncontinue despite the refusal of Congress to approve his\noperation, but until we arrive at that situation, I do\nnot see that there would be a case or controversy for\nsubmission to a court. Also, the initiative to bring\na court action would probably have to come from Members\nof Congress who would seek to stop the continuation of\nthe operation if it went beyond the period specified in\nthe statute. At that point, the Department of Justice\nwould enter the case for the President, and I see no\nreason why private funds would be required to defend\nthe case against the President.\nR.\nFORD\nLIBRARY\n4\nI fear that Senator Goldwater has not realized that\nit is impossible to go at will into court for the\npurpose of challenging a particular statute. A\nfederal court will only hear a \"case or controversy\"\nand will not decide in the abstract on the validity\nor interpretation of a statute. As you recall, we\nhave wanted to challenge statutes allowing for\nCongressional \"veto\" of Executive actions, but we\nare not able to initiate a suit and must await the\noccasion of an actual veto that we defy and then\nare challenged for defying it. Therefore, I would\ndiscourage the Senator from the fund raising effort\nwhich he proposes in his letter to Bill Whyte.\nis\nSTATES\nteam\nTHE WHITE HOUSE\nWASHINGTON\nAugust 10, 1976\nMEMORANDUM FOR:\nJACK MARSH\nFROM:\nPHIL BUCHEN\nSUBJECT:\nWar Powers Resolution\nThis is in response to your memorandum of August 3, requesting\nmy views on the advisability of seeking a court determination\nregarding the constitutionality of the War Powers Resolution. For\nthe reasons discussed below, I would not encourage the recommendation\nadvanced by Senator Goldwater for such a determination.\nBackground\nThe War Powers Resolution [Pub. L. 93-148; H.J. Res. 542, 93d\nCong., 2d Sess. (1973)] was enacted by Congress on November 7, 1973,\nover the veto of former President Nixon. Never before had Congress\nundertaken to codify or define rules applicable to the introduction of\nUnited States armed forces into war or threatened war.\nThe announced purpose of the resolution, set forth in Sec. 2(a), is:\n* * *\n11\nto insure that the collective\njudgment of both the Congress and\nthe President will apply to the intro-\nduction of United States Armed Forces\ninto hostilities, or in situations where\nimminent involvement in hostilities is\nclearly indicated by the circumstances,\nand to the continued use of such forces\nin hostilities or in such situations. \"\n* * *\nSection 2(c) expresses a congressional understanding that the\n\"constitutional powers of the President as Commander-in-Chief\" to\ncommit military forces exist only when: (1) Congress has declared\nwar, (2) legislated specific authority, or (3) the United States is under\nattack.\nFORD\nCERTIFY\nLIBRARY\n- 2 -\nSection 3 provides that the President will consult with Congress \"in\nevery possible instance\" before each use of armed forces in\nhostilities or threatened hostilities and regularly thereafter, until\nUnited States forces are disengaged or removed from such situations.\nThe applicability of the resolution is initiated by Sec. 4, which\nrequires that, absent a declaration of war, whenever United States\narmed forces are introduced (1) into hostilities or imminent\nhostilities; (2) into the territory, air space, or waters of a foreign\nnation, when equipped for combat (other than solely for the supply,\nreplacement, repair or training of forces); or (3) in numbers which\nsubstantially enlarge United States forces equipped for combat already\nlocated in a foreign nation, the President must report it in writing\nto Congress within 48 hours and periodically afterwards. It is\nsignificant that situations (2) and (3) are not tied to the actual outbreak\nof or imminent involvement in hostilities, but restrict the mere\ndeployment of combat forces into another country, whether or not\nhostilities might be anticipated. Even the strengthening of units\nalready located in foreign countries is similarly restricted.\nOnce the reporting provision has been triggered, Sec. 5 takes effect.\nThis section mandates that no later than 60 days after a report is\nrequired, \"the President shall terminate any use of United States\nArmed Forces with respect to which such report was submitted (or\nrequired to be submitted), 11 unless Congress grants specific authority\nfor the operation to continue or \"is physically unable to meet as a\nresult of an armed attack upon the United States. \" The 60-day period\ncan be extended for an additional 30 days if the President determines\nand certifies to Congress that the safety of United States troops demands\ntheir continued use in the course of bringing about their prompt removal.\nDiscussion\nSenator Goldwater and others have argued that the War Powers\nResolution represents a legislative encroachment upon the President's\nexclusive constitutional province in violation of the Commander-in-\nChief clause [Art. II, Sec. 2, cl. 1]. Although I share the concerns\nof Senator Goldwater and others in this regard, I do not believe that\nany gain would be realized in seeking a confrontation with the Congress\non this issue at any time in the foresecable future. My views in this\nregard have been reinforced by my working experiences with the\nResolution.\nSurprisingly little discussion of the Commander-in-Chief clause is\nfound in the Convention or in the ratifying debates. From the evidence\navailable, it appears that the Framers vested the duty in the President\n1.\nFORD\nLIBRARY\n- 3 -\n11\nto be Commander in Chief of the Army and Navy of the\nUnited States\n\", because experience in the Continental Congress\nhad disclosed the inexpediency of vesting command in a group and\nbecause the lesson of English history was that danger lurked in\nvesting command in a person separate from the responsible political\nleaders [May, \"The President Shall Be Commander in Chief, \" in\nE. May (ed.), The Ultimate Decision -- The President as Commander\nin Chief (New York: 1960)].\nThe purely military aspects of the Commander-in-Chiefship were\nthose which were originally stressed. Hamilton said the office\n\"would amount to nothing more than the supreme command and\ndirection of the military and naval forces, as first general and\nadmiral of the confederacy. [The Federalist No. 69 (Modern\nLibrary ed. 1937), 448]\nStory wrote in his Commentaries:\n* * *\n\"The propriety of admitting the president\nto be commander in chief, so far as to give\norders, and have a general superintendence,\nwas admitted. But it was urged, that it\nwould be dangerous to let him command in\nperson, without any restraint, as he might\nmake a bad use of it. The consent of both\nhouses of Congress ought, therefore, to be\nrequired, before he should take the actual\ncommand. The answer then given was, that\nthough the president might, there was no\nnecessity that he should, take the command in\nperson; and there was no probability that he\nwould do so, except in extraordinary emer-\ngencies, and when he was possessed of superior\nmilitary talents. \" [J. Story, Commentaries\non the Constitution of the United States (Boston:\n1833), $1486.\n* * *\nIn 1850, Chief Justice Taney, for the Court, said:\n* * *\n\"His duty and his power are purely military.\nSERATO R. FORD LIBRARY\nAs commander-in-chief, he is authorized to\ndirect the movements of the naval and military\n- 4 -\nforces placed by law at his command, and to\nemploy them in the manner he may deem most\neffectual to harass and conquer and subdue the\nenemy. He may invade the hostile country,\nand subject it ot the sovereignty and authority\nof the United States. But his conquests do not\nenlarge the boundaries of this Union, nor extend\nthe operation of our institutions and laws beyond\nthe limits before assigned to them by the legis-\nlative power. \"\n[Fleming V. Page, 9 How. (50 U.S.) 603, 615,\n618 (1850)]\n*\nThe basis for a broader conception of the power was laid in certain\nearly acts of Congress authorizing the President to employ military\nforce in the execution of the law. [1 Stat. 424 (1795): 2 Stat. 443\n(1807), now 10 U.S. C. 5331-334.] Later, Lincoln advanced the\nclaim still further by asserting that the \"war power\" was his for the\npurpose of suppressing rebellion, and in the Prize Cases [2 B1. (67\nU.S.) 635 (1863)] of 1863, a divided Supreme Court sustained this theory.\nA broad view of the President's power as Commander in Chief continued\nto develop during World Wars I and II. A succession of presidents\nclaimed that the Commander-in-Chiefship carried with it independent\npowers to utilize military forces not only to protect the nation from\nattack but to further the nation's interests across a wide spectrum of\nactivity, without significant Congressional limitation.\nDuring World War II, President Roosevelt claimed the power authorized\nhim to impose mandatory price controls, to create new government\nagencies, to evacuate Japanese from the West Coast and to create the\nNational War Labor Board prohibiting all labor disputes.\nDuring the post-war years, there was some diminution of the power\nasserted under the Commander-in-Chief clause. However, this was\nlargely a reaction against the wartime exercise of power by Presidents\nRoosevelt and Truman and this fact was recognized by the Supreme\nCourt when it struck down the President's action in seizing the steel\nindustry while it was struck during the Korean War [Youngstown Sheet\nand Tube Co. V. Sawyer, 343 U.S. 579 (1952)].\nBERALD FORD LIBRARY\n- 5 -\nDespite this temporary setback, the trend of growth in the war\npower was not reversed. President Truman did not seek\ncongressional authorization before sending troops to Korea and\nsubsequent presidents similarly acted on their own in putting\ntroops into Lebanon and the Dominican Republic as well as most\nnotably into Indochina. Eventually, however, public opposition\nto the Vietnam War precipitated a constitutional debate as to the\nappropriate scope of Presidential power in this area, a debate which\nwent on inconclusively between Congress and the Executive and one\nwhich the courts were content generally to avoid. It was against\nthis backdrop that the War Powers Resolution was enacted.\nThe central observation to be made regarding the War Powers\nResolution is that it has established certain limited precedents of\npractice and policy rather than constitutional rules. At this particular\ntime in our history, it is a realistic solution to a fundamental conflict\nbetween the Legislative and Executive Branches and should not be\nassaulted frontally.\nOn a number of occasions, most notably the Mayaguez incident,\nPresident Ford has directed military operations which came within\nthe purview of the War Powers Resolution. A practice has developed\nin these instances which is neither cumbersome nor unseemly. The\npractice calls for the President to provide the Congress with notice\nof troop movement and to consult with members of the Congressional\nleadership on the general nature of the problem and his intended\nsolution. Although noting the War Powers Resolution the President\nhas, for the record, consistently relied solely on his constitutional\npowers to effect these actions (see attachment).\n//\nConclusion\nIn view of the fact that the War Powers Resolution has led to\nPresidential practices and policies which are both workable and\ndignified, there would appear to be no pressing need to disturb\nthem. Additionally, the President always retains the flexibility\nto take a firmer position on the subject should that ever become a\nnecessity. Finally, this issue raises the kind of fundamental rub\nbetween the Legislative and Executive Branches which best lends\nitself to solutions grounded in comity. For these reasons, I cannot\nsupport the recommendation of Senator Goldwater to seek a court\nchallenge to the War Powers Resolution.\n#\nBERAILS 1. FORD UBRANT\nTHE WHITE HOUSE\nWASHINGTON\nAugust 3, 1976\nMEMORANDUM FOR:\nPHIL BUCHEN\nFROM:\nJACK MARSH\nPlease note the attached letter to Bill Whyte, a copy of which\nwas sent to the White House.\nThe President has raised the question as to whether the course\nsuggested by Senator Goldwater should be pursued on getting a\ncourt determination of the War Powers Act.\nI would appreciate your views.\nMany thanks.\ncc: Dick Cheney\nSTATE FORD LIBRARY\nBARRY GOLDWATER\nCOMMITTEES:\nARIZONA\nAERONAUTICAL AND SPACE SCIENCES\nARMED SERVICES\nRECEIVED\nPREPAREDNESS INVESTIGATING SUBCOMMITTEE\nWM. G. WHYTE\nTACTICAL AIR POWER SUBCOMMITTEE\nUnited States Senate\nINTELLIGENCE SUBCOMMITTEE\nMILITARY CONSTRUCTION SUBCOMMITTEE\nDUL 27 1976\nWASHINGTON, D.C. 20510\nRESEARCH AND DEVELOPMENT SUBCOMMITTEE\nVICE PRESIDENT\nWASHINGTON\nJuly 21, 1976\nMr. William Whyte\nU. S. Steel\n1625 K Street, Northwest\nWashington, D. C. 20006\nDear Bill:\nEver since the Congress foolishly passed the War Powers\nAct about two years ago, I had been discussing the de-\nsirability and possibility of bringing a suit so that an\nultimate decision could be made by the Supreme Court testing\nthe constitutionality of this measure.\nIn my humble opinion, it is unconstitutional, but far beyond\nthat, it makes the Congress, all 535 members, the group\nwhich will determine foreign policy, the group which will\ndetermine if, when and with whom we go to war and, to be\nhonest with you, it scares the daylights out of me.\nNow, my question to you is that if we can reach a determina-\ntion as to how much this course of action might cost, and\nI'm thinking of at least a quarter of a million dollars, do\nyou think we can put enough men together to raise the money\nfor that purpose? I will be very willing to help in any\nway that I can, but let me suggest, Bill, that you first\ndiscuss this with the President. I have very quickly brushed\nit by him, but I have a feeling that he would be very desirous\nof having the test made. I know that Nixon had that feeling\nand I haven't spoken with a former Secretary of State yet\nwho doesn't feel that this legislation can be destructively\ndangerous to the future of our country. I would appreciate\nhearing from you. I am writing no one else until the two of\nus can either agree or disagree.\nSincerely,\nBarry Buy Goldwater\nSEALE R. FORD LIBRARY\nTHE WHITE HOUSE\nWASHINGTON\nApril 30, 1975\nDear Mr. Speaker:\nOn April 4, 1975, I reported that U.S. naval vessels had\nbeen ordered to participate in an international humanitarian\nrelief effort to transport refugees and U.S. nationals to\nsafety from Danang and other seaports in South Vietnam.\nThis effort was undertaken in response to urgent appeals\nfrom the Government of South Vietnam and in recognition of\nthe large-scale violations by the North Vietnamese of the\nAgreement Ending the War and Restoring the Peace in Vietnam.\nIn the days and weeks that followed, the massive North\nVietnamese attacks continued. As the forces of the Government\nof South Vietnam were pushed further back toward Saigon, we\nbegan a progressive withdrawal of U.S. citizens and their\ndependents in South Vietnam, together with foreign nationals\nwhose lives were in jeopardy.\nOn April 28, the defensive lines to the northwest and south\nof Saigon were breached. Tan Son Nhut Airfield and Saigon\ncame under increased rocket attack and for the first time\nreceived artillery fire. NVA forces were approaching within\nmortar and anti-aircraft missile range. The situation at\nTan Son Nhut Airfield deteriorated to the extent that it\nbecame unusable. Crowd control on the airfield was breaking\ndown and the collapse of the Government forces within Saigon\nappeared imminent. The situation presented a direct and\nimminent threat to the remaining U.S. citizens and their\ndependents in and around Saigon.\nOn the recommendation of the American Ambassador there, I\nordered U.S. military forces to proceed by means of rotary\nwing aircraft with an emergency final evacuation out of\nconsideration for the safety of U.S. citizens.\nIn accordance with my desire to keep the Congress fully\ninformed on this matter, and taking note of the provision\nof section 4 of the War Powers Resolution (Public Law 93-148),\nI wish to report to you that at about 1:00 A.M. EDT,\nApril 29, 1975, U.S. forces entered South Vietnam airspace.\na.\nDEPARTMENT\nFORD\nLIBRARY\nA force of 70 evacuation helicopters and 865 Marines\nevacuated about 1400 U.S. citizens, together with\napproximately 5500 third country nationals and South\nVietnamese, from landing zones in the vicinity of the\nU.S. Embassy, Saigon, and the Defense Attache Office at\nTan Son Nhut Airfield. The last elements of the ground\nsecurity force departed Saigon at 7:46 P.M. EDT April 29,\n1975. Two crew members of a Navy search and rescue\nhelicopter are missing at sea. There are no other known\nU.S. casualties from this operation, although two U.S.\nMarines on regular duty in the compound of the Defense\nAttache Office at Tan Son Nhut Airfield had been killed\non the afternoon (EDT) of April 28, 1975, by rocket attacks\ninto a refugee staging area. U.S. fighter aircraft provided\nprotective air cover for this operation, and for the with-\ndrawal by water of a few Americans from Can Tho, and in one\ninstance suppressed North Vietnamese anti-aircraft artillery\nfiring upon evacuation helicopters as they departed. The\nground security forces on occasion returned fire during the\ncourse of the evacuation operation.\nThe operation was ordered and conducted pursuant to the\nPresident's Constitutional executive power and his authority\nas Commander-in-Chief of U.S. Armed Forces.\nThe United States Armed Forces performed a very difficult\nmission most successfully. Their exemplary courage and\ndiscipline are deserving of the nation's highest gratitude.\nSincerely,\nGERALD FORD\nThe Honorable\nThe Speaker\nUnited States House of Representatives\nWashington, D. C. 20515\nis\nDEPARTMENT\nFORD"
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