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War Powers Resolution General
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The original documents are located in Box 65, folder "War Powers Resolution General" of
the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
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.
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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.
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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.
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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.
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As commander-in-chief, he is authorized to
direct the movements of the naval and military
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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)].
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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
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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
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