[NOTE: This version includes a few corrections, additions, and some missing citations that were not in the version

originally submitted to the subcommittee.]

War Powers in the Twenty-First Century: The Executive Branch Position

• • • •

A TRAGIC LEGACY OF SERIOUS HARM

TO THE CONSTITUTION AND AMERICAN SECURITY RESULTING FROM LEGISLATIVE USURPATION

OF EXECUTIVE POWER

• • • •

Prepared Statement of

Prof. Robert F. Turner, SJD Cofounder

CENTER FOR NATIONAL SECURITY LAW University of Virginia School of Law

before the

Subcommittee on International Organizations, Human Rights, and Oversight

of the

House Committee on Foreign Affairs

Thursday, April 24, 2008 • 2:00 PM 2172 Rayburn House Office Building

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About the Witness Professor Robert F. Turner holds both professional and academic doctorates from the University of Virginia School of Law, where in 1981 he co-founded the Center for National Security Law. He has also served as the Charles H. Stockton Professor of International Law at the Naval War College and a Distinguished Lecturer at the U.S. Military Academy at West Point. In addition to teaching seminars on Advanced National Security Law at the law school, for many years he taught International Law, U.S. Foreign Policy, and seminars on the Vietnam War and Foreign Policy and the Law in what is now the Woodrow Wilson Department of Politics at Virginia. His academic expertise is supplemented by many years of governmental service, including five years during the mid-1970s as national security adviser to Senator Robert P. Griffin with the Foreign Relations Committee and subsequent Executive Branch service as Special Assistant to the Under Secretary of Defense for Policy, Counsel to the President’s Intelligence Oversight Board at the White House, and acting Assistant Secretary of State for Legislative and Intergovernmental Affairs in 1984-85. His last government service was as the first President of the U.S. Institute of Peace, which he left twenty years ago to return to the University of Virginia. A veteran of two voluntary tours of duty as an Army officer in Vietnam, Dr. Turner has spent much of his professional life studying the separation of national security powers under the Constitution. Senator John Tower wrote the foreword to his 1983 book The War Powers Resolution: Its Implementation in Theory and Practice; and former President Gerald Ford wrote the foreword to Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy (1991). Dr. Turner authored the separation-of-powers and war powers chapters of the 1400-page law school casebook, National Security Law, which he co-edited with Professor John Norton Moore. Turner’s most comprehensive examination of these issues, National Security and the Constitution, has been accepted for publication as a trilogy by Carolina Academic Press and is based upon his 1700-page, 3000-footnote doctoral dissertation by the same name. Professor Turner served for three terms as chairman of the prestigious ABA Standing Committee on Law and National Security in the late 1980s and early 1990s and for many years was editor of the ABA National Security Law Report. He has also chaired the Committee on Executive-Congressional Relations of the ABA Section of International Law and Practice and the National Security Law Subcommittee of the Federalist Society. The views expressed herein are personal and should not be attributed to the Center or any other entity with which the witness is or has in the past been affiliated.

• • •

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Introduction

MR. CHAIRMAN, it is an honor to be invited once again to testify before this

Committee on the issue of constitutional war powers.

Before continuing, I should emphasize that I was originally approached by staff

about testifying on the academic panel two weeks ago; but because of a prior

commitment I could not attend that hearing. I have read the prepared statements

of the witnesses at the April 10th hearing, and I will on occasion comment upon

them in my prepared statement, which I will briefly summarize and ask be

submitted for the record.

Like others on this afternoon’s panel, I have served in the Executive Branch – in

the Pentagon, the White House, and the Department of State. But while I worked

on war powers issues during each of those assignments, I would not want anyone

to assume that the views I express today are necessarily those of the current or

any former presidential administration. (All of my senior1 Executive Branch

service was during the Reagan Administration.)

However, one point of agreement in every administration from Richard Nixon to

George W. Bush (and including Jimmy Carter and Bill Clinton, as I understand

it), is that the 1973 War Powers Resolution is unconstitutional. I will certainly

embrace and defend that conclusion; but beyond that I would ask that the specific

views I express be understood to be entirely personal. (Indeed, my views on that

statute were largely formed during the years I spent as a Senate staff member

working with the Committee on Foreign Relations during the Nixon, Ford, and

Carter years.)

1 I was a member of the Senior Executive Service in the Pentagon, White House, and State Department. I use the term “senior” to exclude service as an Army lieutenant and captain during the Johnson and early Nixon Administrations.

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This is an issue of great personal and professional interest to me. I served twice

in Vietnam as an Army officer, and I watched with sadness as often thoughtless

and highly inaccurate statements by Members of Congress undermined the morale

of our own forces, encouraged and emboldened our enemy, and ultimately

resulted in “snatching defeat from the jaws of victory”2 in what I continue to view

as a very necessary war.3

When the War Powers Resolution was enacted over a presidential veto in

November 1973, I was a Fellow at Stanford University’s Hoover Institution on

War, Revolution and Peace, serving inter alia as their senior expert on the

Vietnam War. A few weeks later my fellowship brought me to Capitol Hill, and I

worked in the Senate as national security adviser to Senator Robert P. Griffin (R.

Mich.) during the first five years after the War Powers Resolution became law. I

later dealt with war powers issues while serving as Special Assistant to the Under

Secretary of Defense for Policy, while a lawyer in the Reagan White House, and

while serving as Acting Assistant Secretary of State for Legislative and

Intergovernmental Affairs in 1984-85.

Since leaving the federal government in 1985, I have continued my interest in war

powers as a scholar, publishing my second book specifically on the statute in

1991 and dealing extensively with war powers issues in my 1700-page academic

law doctoral (S.J.D.) dissertation “National Security and the Constitution,” which

has been accepted for publication as a trilogy by Carolina Academic Press. I have

testified on war powers issues repeatedly over the years before this Committee,

the House Armed Services Committee, and the Senate Foreign Relations and

Judiciary Committees.

2 I put this in quotation marks to emphasize that it is not an original observation. I have heard both former Director of Central Intelligence William E. Colby and Professor Douglas Pike – for decades America’s leading authority on the Viet Cong – use the expression in describing the tragic end to the war. 3 I realize that statement is at odds with much of the conventional wisdom, so I will address these issues in greater detail later in my testimony.

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If not unique, my experience in this area is at least unusual. I first became

involved in debating the Vietnam War in 1965 while an undergraduate at Indiana

University, where in 1966-67 I wrote my 450-page honors thesis on the conflict.

Upon graduation, I turned down a law school deferment to enter active duty in the

Army with an ROTC commission, and immediately volunteered for service in

Vietnam. As a soldier and scholar, I saw the war first-hand over a period of seven

years (1968-75), traveling to 42 of South Vietnam’s 44 provinces as well as Laos

and Cambodia in the process. As a senior Senate staff member, I took

“consultation” calls pursuant to Section 3 of the War Powers Resolution from

White House legislative affairs representatives when my Senator was unavailable.

As a Pentagon lawyer in 1981, I authored a 74-page memorandum discussing the

power of Congress to “declare War”4 and its relevance in the modern era.5 As a

White House lawyer, I drafted a memorandum on the obligations under the War

Powers Resolution on the eve of the rescue in Grenada in October 1983; and I

closely followed both the congressional debates and intelligence intercepts from

our enemies at the time of the bombing in Beirut that same month. As a

constitutional scholar and teacher, I’ve taught and guest lectured about both the

theoretical and practical aspects of these issues for more than thirty years at some

of the top law schools and universities in the Nation. Obviously, none of this

assures that I’m right, but I believe it does give me some advantage in the search

for the truth in this area. And I take particular pride in the fact that my

constitutional interpretations have not changed as presidents of different political

parties have moved in and out of the White House.6

4 U.S. CONST., Art. I, Sec. 8, Cl 11. 5 See, e.g., Memorandum from Bob Turner to Under Secretary of Defense for Policy Dr. [Fred] Iklé, dated Dec. 9, 1981, subject: “Utility of a Declaration of War in Today’s World,” available on line at: http://www.virginia.edu/cnsl/pdf/Turner1981WarMemo.pdf . 6 See, e.g., my defense of President Truman and criticism of conservative Republican legislators in Robert F. Turner, Truman, Korea, and the Constitution: Debunking the “Imperial President” Myth, 19 HARV. J. L. & PUB. POL. 533, 577-79 (1996); and my criticism of Republican presidential candidate Bob Dole in Robert F. Turner, Foreign Affairs Under the Constitution: Only President Can Move Embassy, LEGAL TIMES, Jan 22, 1996 at 46 (concerning an amendment the

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Because I suspect it is the issue most directly of interest to you in today’s hearing,

I’m going to begin by briefly discussing the historical background to the 1973

War Powers Resolution and tell you why I believe it is flagrantly unconstitutional.

Then I will expand at greater length, explaining why the premises upon which the

resolution was based were false and examining some of the tremendous harm

done to our security, the lives of our military forces, and our national honor by the

War Powers Resolution and similar statutes.

In order to understand the constitutional paradigm in which the War Powers

Resolution should be judged, it is necessary to look back to the early history of

our country and understand what the Founding Fathers believed they were doing

when they wrote and ratified our Constitution.

The Original Understanding of Separation of Powers Regarding War, Intelligence, and Diplomacy

The first thing that must be understood is that the men who wrote our Constitution

were greatly influenced by the writings of Locke, Montesquieu, and Blackstone –

often described as the “political bibles of the constitutional fathers.”7 And each of

these great writers argued that, for what might be called reasons of “institutional

competency,” the business of what Locke described as “war, peace, leagues and

alliances” of necessity had to be vested in the king or magistrate and was a key

component of “executive power.” As Locke explained in his Second Treatise on

Civil Government:

These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick without, with all those that it may receive benefit or

Senator has sponsored attempting to compel the President to move the U.S. embassy in Israel from Tel Aviv to Jerusalem. 7 See, e.g., QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 363 (1922).

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damage from, yet they are always almost united. And though this federative Power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick [sic] good . . . . “[W]hat is to be done in reference to Foreigners, depending much upon their actions, and the variation of designs and interest, must be left in great part to the Prudence of those who have this Power committed to them, to be managed by the best of their Skill, for the advantage of the Commonwealth.8

Unlike Montesquieu and Blackstone, who described the power over foreign

affairs as part of the “executive power,” Locke coined the term “federative”

power, but it is clear from the above that he shared the conventional wisdom of

the era that this was a power that belonged in the hands of the executive

magistrate.

The great Professor Quincy Wright – who served as President of the American

Society of International Law and both the American and the International Political

Science Associations (and who wrote the first major treatise on The Control of

American Foreign Relations in 1922) – explained: “Thus, when the constitutional

convention gave ‘executive power’ to the President, the foreign relations power

was the essential element in the grant, but they carefully protected this power

from abuse by provisions for senatorial or congressional veto.”9 Similarly,

Professor Louis Henkin added in his 1972 classic, Foreign Affairs and the

Constitution: “The executive power . . . was not defined because it was well

understood by the Framers raised on Locke, Montesquieu and Blackstone.”10

That the Constitution vested exclusively in the President all powers “executive” in

character that were not expressly placed elsewhere was established in the 1789 8 JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (1690). 9 THE CONTROL OF AMERICAN FOREIGN RELATIONS 147 (1922). 10 LOUIS FOREIGN AFFAIRS AND THE CONSTITUTION 43 (1972).

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congressional debates over the placement of the power to remove the Secretary of

Foreign Affairs. The Constitution had not mentioned this issue, and some

speculated it was either a life-tenured appointment or that, as in the case of

appointment, the President would need the advice and consent of the Senate to

remove the incumbent officer. But Madison carried the day in both the House

and Senate with this argument:

The constitution affirms, that the executive power shall be vested in the President. Are there exceptions to this proposition? Yes, there are. The constitution says, that in appointing to office, the Senate shall be associated with the President, unless in the case of inferior officers, when the law shall otherwise direct. Have we a right to extend this exception? I believe not. If the constitution has invested all executive power in the President, I venture to assert that the Legislature has no right to diminish or modify his executive authority.11

Now Congress has the power to pretty quickly end a major war simply by

refusing to raise new forces or appropriate the necessary funds – major wars are

expensive enterprises – but there may be a parallel here in terms of whether

Congress has the power while the President has available funds and other

resources to simply legislate an end to a war. The Framers viewed war as an

executive function, and Congress was given a constitutional negative only over

the decision to “declare War.” I suspect it is largely an academic question given

the other weapons of Congress to undermine a successful war, but Madison’s

logic may nevertheless be of relevance.

In a letter to Edmund Pendleton explaining the debate over the power to remove

an executive branch cabinet officer, Madison wrote:

[T]he Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department. . . .

11 1 ANNALS OF CONG. 479-81 (1789).

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In truth, the Legislative power is of such a nature that it scarcely can be restrained either by the Constitution or by itself. And if the federal Government should lose its proper equilibrium within itself, I am persuaded that the effect will proceed from the encroachments of the Legislative department.12

Thus, when the Constitution in Article II, Section 1, provided that “The executive

Power shall be vested in a President of the United States of America,” it was

vesting in the President exclusive control over decisions involving diplomacy,

intelligence,13 and the conduct of military operations, subject only to the narrowly

construed exceptions clearly vested in the Senate or Congress. As Thomas

Jefferson explained in an April 1790 memorandum to President Washington (who

had asked where the Constitution placed all of the powers related to diplomacy

that were not specifically mentioned in the instrument):

The Constitution . . . . has declared that “the Executive power shall be vested in the President,” submitting only special articles of it to a negative by the Senate . . . . The transaction of business with foreign nations is executive altogether; it belongs, then to the head of that department, except as to such portions of it as are specially submitted to the Senate. Exceptions are to be construed strictly.14

Just three days later, Washington recorded in his diary that he had discussed

Jefferson’s memo with Representative James Madison and Chief Justice John Jay,

and they agreed with Jefferson that the Senate “had no constitutional right to

interfere” with matters of diplomacy save for their expressed power of “an

approbation or disapprobation of the person nominated by the President, all the

rest being Executive and vested in the President by the Constitution.”15

12 Madison to Edmund Pendleton, 21 June 1789, 5 WRITINGS OF JAMES MADISON 405-06 n. 13 In FEDERALIST No. 64, John Jay explained that because Congress could not be trusted to keep secrets, the Constitution had left the President “able to manage the business of intelligence as prudence might suggest.” 14 16 PAPERS OF THOMAS JEFFERSON 378-79 (Julian P. Boyd, ed. 1961). 15 4 DIARIES OF GEORGE WASHINGTON 122 (Regents’ Ed. 1925).

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Three years later, Jefferson’s political rival (and, along with Madison and Jay, the

third author of the Federalist Papers) Alexander Hamilton made precisely the

same argument, this time with a specific reference to the power of Congress to

“declare War”:

The general doctrine of our Constitution . . . is that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications which are expressed in the instrument. . . . It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general “executive power” vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution. While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations . . . enjoin in the intercourse of the United States with foreign Powers.16

In an 1804 letter to Treasury Secretary Albert Gallatin, President Jefferson

explained the original understanding of the role of Congress in appropriating

funds for foreign intercourse:

The Constitution has made the Executive the organ for managing our intercourse with foreign nations . . . . From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.17

This is easily confirmed by examining the legislation in this area enacted by

Congress. While the bill creating the Department of the Treasury required the

16 15 THE PAPERS OF ALEXANDER HAMILTON 39 (Harold C. Syrett ed., 1969). 17 11 WRITINGS OF THOMAS JEFFERSON 5, 9, 10 (Mem. ed. 1903).

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Secretary to appear before Congress on demand and to make his annual report to

the Congress, the bill introduced by Madison to establish the Department of

Foreign Affairs (later re-designated “Department of State”) was short and to the

point:

Be it enacted . . . That there shall be an Executive department, to be denominated the Department of Foreign Affairs, and that there shall be a principal officer therein, to be called the Secretary . . . , who shall perform and execute such duties as shall from time to time be enjoined on or intrusted to him by the President of the United States, agreeable to the Constitution . . . ; and furthermore, that the said principal officer shall conduct the business of the said department in such manner as the President . . . shall from time to time order or instruct.18

Dr. Charles Thach, in one of the classic academic studies on the oigins of

presidential power, observed:

The sole purpose of that organization was to carry out, not legislative orders, as expressed in appropriation acts, but the will of the executive. In all cases the President could direct and control, but in the “presidential” departments [war and foreign affairs] he could determine what should be done, as well as to how it should be done. . . . Congress was extremely careful to see to it that their power of organizing the department did not take the form of ordering the secretary what he should or should not do.19

Consider also the first appropriations bill for foreign intercourse. In language that

would be repeated for many years thereafter, Congress in 1790 appropriated

$40,000 (soon raised to $50,000, at which time it was 14 percent of the federal

budget) for foreign intercourse, with these instructions:

[T]he President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable

18 1 STAT. 28 (1789), 19 CHARLES C. THACH, THE CREATION OF THE PRESIDENCY 1775-1789 at 160.

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not to specify, and cause a regular statement and account thereof to be laid before Congress annually . . . .20

As a Federalist Member of Congress in 1800, John Marshall played a key role in

the debate over whether President Adams had acted wrongfully in surrendering a

British deserter found in Charleston, South Carolina, to British military authorities

pursuant to the extradition provision of the Jay Treaty without involving the

judiciary. Showing the typical deference to the President’s “executive” power

over foreign affairs, Marshall reasoned:

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations . . . . He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him. The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. . . . The department which is entrusted with the whole foreign intercourse of the nation . . . seems the proper department to be entrusted with the execution of a national contract like that under consideration. . . . It is then demonstrated, that, according to the principles of the American Government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the Executive department. . . . In this respect, the President expresses constitutionally the will of the nation . . . . This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and a Constitutional power.21

Marshall’s speech persuaded even Gallatin and many of the other House

Republicans, and the resolution to censure Adams was quickly defeated. In 1936,

20 1 STAT. 129 (1790). 21 10 ANNALS OF CONG. 613-15 (1800).

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the Supreme Court praised Marshall’s reasoning while embracing the language

that the President is “the sole organ of the nation in its external relations.”22

Three years after his defense of Adams while a Representative, Marshall was

America’s third Chief Justice. In the most famous of all Supreme Court cases,

Marbury v. Madison, he was called upon to examine the discretionary

constitutional powers of his bitter political rival, President Thomas Jefferson.

Those who believe that there can be no “unchecked” executive powers in a

republican form of government presumably studied constitutional law using one

of the several casebooks that omits this language from that landmark case:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of [C]ongress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. . . . The acts of such an officer, as an officer, can never be examinable by the courts.23

This last sentence is important, and it explains why the judiciary often invokes the

political question doctrine to sidestep cases that question the President’s conduct

of war or foreign affairs. To the extent these decisions are constitutionally

entrusted to the discretion of the President, the courts can no more properly

address them than it can sit in judgment of a member of this chamber for an

allegedly defamatory remark made during a speech or debate on the House floor.

22 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). 23 Marbury v. Madison, 5 U.S. [1 Cranch] 137, 165-66 (1803).

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That issue, too, is confided by the Constitution to the exclusive discretion of

another branch.24

I mention this, because I noticed that Professor Lobel recommended that you

include in any new war powers legislation a provision prohibiting the courts from

invoking the political question doctrine to avoid deciding such issues. Obviously,

to the extent these decisions are based upon the fact that discretion in the matter is

exclusively vested in the President, such a statute would be unconstitutional.

That presidential powers in the foreign affairs realm are plenary and exclusive –

save for the expressed exceptions vested in the Senate and Congress – has been

repeatedly affirmed by the Supreme Court. By far the most frequently cited

Supreme Court case in this area is United States v. Curtiss-Wright Export Corp.,

in which the Court declared:

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.25

It was not merely the executive and judicial branches that recognized presidential

primacy in these areas, but Congress as well. Consider this excerpt from an 1897

Senate Report:

It is to be remembered that effective intervention in foreign affairs sometimes requires the cooperation of other nations, while on the other hand, the expectancy of future intervention sometimes stirs up foreign governments to take preventive measures. Intervention,

24 Under the Speech or Debate Clause of Article I, Section 6, “The Senators and Representatives . . . for any Speech or Debate in either House, . . . shall not be questioned in any other Place.” 25 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

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like other matters of diplomacy, sometimes calls for secret preparation, careful choice of the opportune moment, and swift action. It was because of these facts that the superintendence of foreign affairs was intrusted to the executive and not to the legislative branch of the Government. . . . “[O]ur Constitution gave the President power to send and receive ministers…[etc.]. These grants confirm the executive character of the proceedings, and indicate an intent to give all the power to the President, which the Federal Government itself was to possess—the general control of foreign relations. . . . That this is a great power is true; but it is a power which all great governments should have; and, being executive in the conception of the founders, and even from its very nature incapable of practical exercise by deliberative assemblies, was given to the President.26

In 1906, a debate occurred in the Senate over the power of that body to compel

the President to provide documents about the negotiation of a treaty. One of the

great figures of that body, Senator John Coit Spooner, delivered a detailed

exposition on constitutional treaty powers in which he explained:

The Senate has nothing to do with the negotiation of treaties or the conduct of our foreign intercourse and relations save the exercise of the one constitutional function of advice and consent which the Constitution requires as a precedent condition to the making of a treaty. . . . From the foundation of the Government it has been conceded in practice and in theory that the Constitution vests the power of negotiation and the various phases—and they are multifarious—of the conduct of our foreign relations exclusively in the President. And, Mr. President, he does not exercise that constitutional power, nor can he be made to do it, under the tutelage or guardianship of the Senate or of the House or of the Senate and House combined. I do not deny the power of the Senate either in legislative session or in executive session—that is a question of propriety—to pass a resolution expressive of its opinion as to matters of foreign policy. But if it is passed by the Senate or by the House or by both Houses it is beyond any possible question purely advisory, and not in the slightest degree binding in law or conscience upon the President.

26 U.S. Senate, Memorandum Upon the Power to Recognize the Independence of a New Foreign State 6-7. Sen. Doc. 54-56, 54th Cong., 2d. Sess. (1897).

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…[S]o far as the conduct of our foreign relations is concerned, excluding only the Senate’s participation in the making of treaties, the President has the absolute and uncontrolled and uncontrollable authority.”27

When Senator Spooner took his seat, another legendary figure in the Senate,

Henry Cabott Lodge, arose and declared: “Mr. President, I do not think that it is

possible for anybody to make any addition to the masterly statement in regard to

the powers of the President in treaty making . . . [that] we have heard from the

Senator from Wisconsin [Sen. Spooner].” Senator Augustus Bacon, whose

request for treaty negotiating documents had led to Senator Spooner’s lengthy

address, responded that the Senate’s claim to the information was based not upon

“legal right” but upon “courtesy” between the President and the Senate.28

Following the end of World War I, the President kept a considerable number of

American military personnel in Germany – much to the dismay of their parents

back in this country. In 1922, a junior Senator proposed that the Senate pass a

law directing the President to bring the boys home. This exchange occurred on

the Senate floor between Senator Reed and his much senior colleague, Senator

William Borah, a famous isolationist who had served numerous terms in the

Senate and included among his accomplishments service as Chairman of the

Senate Committee on Foreign Relations:

Mr. Reed. Does the Senator think and has he not thought for a long time that the American troops in Germany ought to be brought home? Mr. Borah. I do. …[But] [y]ou can not bring them home, nor can I. Mr. Reed. We could make the President do it.

27 40 Cong. Rec. 1417 (1906). 28 EDWIN CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957AT 182 (4th rev ed. 1957).

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Mr. Borah. We could not make the President do it. He is Commander in Chief of the Army and Navy of the United States, and if in the discharge of his duty he wants to assign them there, I do not know of any power that we can exert to compel him to bring them home. We may refuse to create an Army, but when it is created he is the commander. Mr. Reed. I wish to change my statement. We can not make him bring them home.29

In my doctoral dissertation, I document that this was the common understanding

of all three branches of our government until well into the Vietnam War, when

Congress began seizing control over a variety of executive business long accepted

to be the exclusive province of the President. Since one of the leaders of that

assault on presidential power was the late Senator J. William Fulbright, it might

be instructive to remember what Senator Fulbright said as Chairman of the Senate

Foreign Relations Committee in a 1959 lecture at Cornell Law School: “The pre-

eminent responsibility of the President for the formulation and conduct of

American foreign policy is clear and unalterable. He has, as Alexander Hamilton

defined it, all powers in international affairs ‘which the Constitution does not vest

elsewhere in clear terms.’”30 (Note that he refers not only to the President’s role

in communicating with foreign leaders, but also his responsibility for the

“formulation” of the nation;s foreign policy. Obviously, through its negative over

treaties, the Senate has considerable influence on some areas of foreign policy;

but the general rule is that this is “executive” business and thus confided to the

discretion of the President under the Constitution.)

Dr. Fisher told you that the Framers of our Constitution vested “the power of war

in the elected representatives of Congress.”31 While this was arguably true in the

initial draft, which vested in Congress the power to “make war,” on August 17,

1787, Madison and Gerry moved to replace that grant with the much more limited

29 CONGRESSIONAL RECORD (December 27, 1922). 30 J. William Fulbright, American Foreign Policy in the 20

th Century Under an 18

th Century

Constitution, 47 CORNELL L. Q. 1, 3 (1961).. 31 Fisher testimony at 3.

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power to “declare War,” which was a term-of-art from the Law of Nations. When

the Constitution was written, it was considered necessary to “declare war” only

when a country was about to wage all-out, “total” or “perfect” war in which all

citizens of one State would be at war with all of the citizens of another. None of

the prominent scholars whose works were regularly cited by the Founding Fathers

believed that a formal “declaration of war” was necessary when force was being

used defensively. It was only considered necessary when two nations were at

peace and one elected to initiate an all-out war that could not be justified by the

doctrine of self-defense. Thus, Hugo Grotius wrote: “[N]o declaration [of war] is

required when one is repelling an invasion, or seeking to punish the actual author

of some crime.”32 Similarly, Alberico Gentili explained: “[W]hen war is

undertaken for the purpose of necessary defence, the declaration is not at all

required.”33

The Power of Congress to Declare War is an Anachronism

In my view, the power granted to Congress “to declare War” by the Constitution

is today as much an anachronism as the power given in the same sentence to

“grant [L]etters of Marque and Reprisal . . . .” As you may recall, Letters of

Marque and Reprisal were commissions from the government to private ship

owners authorizing them to seize the ships of a foreign enemy on the high seas –

either in major war or in settings of “quasi-war” like the conflict between the

United States and France during the Adams presidency.

The world community outlawed Letters of Marque and Reprisal in 1856, and no

country has employed one since then. Should the President decide to authorize

privateers to fight in a war, Congress would clearly have a negative over the

decision. But that is highly unlikely to ever happen, and if it did it would be a

violation of international law. 32 HUGO GROTIUS, DE JURE BELLI AC PACIS, bk. III, Ch. 3. 33 2 ALBERICO GENTILI, DE JURE BELLI LIBRI TRES 140 (1620 [1933 ed.]).

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Similarly, in 1928 the world community outlawed the kind of use of force

associated with formal declarations of war. The 1928 Kellogg-Briand Treaty

proved ineffective, but the principles it embodied are reaffirmed in Article 2(4) of

the UN Charter, and no country has clearly issued a formal declaration of war

since the 1945 founding of the United Nations.

Keep in mind that when Madison on August 17, 1787, moved in the Philadelphia

Convention to reduce the power of Congress from the power “to make war” to the

more narrow power to “declare War” (a motion that was approved with but a

single dissenting vote when it was suggested that “make war” might give

Congress some role in the conduct of war34), he was using a term-of-art from the

law of nations (international law). And (as I have already demonstrated) the great

scholars of the era agreed that such declarations were not required when one was

using force defensively.

Virtually the only kinds of force it is lawful for individual States to use in the

modern world are in self-defense and collective self-defense under Article 51 of

the Charter.35 Under international law, those types of force have never required a

formal declaration of war. Like the power to grant Letters of Marque and

Reprisal given in the same sentence, the power of Congress to declare war has

largely been destroyed by the progressive development of international law. We

no longer have the legal right to use the kind of aggressive force that was

associated with formal declarations of war – and in my view that is a very good

thing. But, once again, if the President ever decided it was desirable to launch a

major aggressive war, Congress would still retain its constitutional negative to

prevent it.

34 2 MAX FARRAND, RECORDS OF THE FEDERAL CONVENTION OF 1787 at 319 n* (1966). 35 This is an oversimplification, as I believe it is lawful to use force under certain circumstances in anticipatory self-defense and humanitarian intervention. The point I am making is that formal declarations of war were associated only with offensive war (in a jus ad bellum sense) – what we today would characterize as “aggressive” war – are today clearly illegal under international law.

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While on the issue of Letters of Marque, I should note that Professor Lobel

asserted during your April 10 hearing that “letters of marque and reprisal referred

to imperfect wars, special wars, limited wars, reprisals – all of which constituted

hostilities that were something less than full-scale war.” To support this, he

quotes James Kent as referring to “special letters of marque and reprisal as

‘imperfect war[s].”36 This is the kind of logical fallacy that high school debaters

sometimes make: letters of marque and reprisal are used as tools of “imperfect

war,” ergo all imperfect wars are regulated by letters of marque and reprisal – an

obvious non sequitur. The fact is that American presidents have used “force short

of war” without congressional authorization more than 200 time throughout our

history, in most cases without visible signs of significant congressional concern.

As I have already mentioned, a letter of marque and reprisal was a well-

established legal instrument by which States would authorize private ship owners

to engage in armed hostilities against the ships of a country with which the issuing

State was unhappy. These legal documents would authorize “privateers” to

capture commercial vessels (and sometimes even warships) of the other State, and

once seized the matter would be taken before a prize court where the judge would

examine the documentation and ascertain whether the seizure was in accord with

law. (For example, the court would decide whether the seized vessel was in fact

owned by a citizen of the State in question and that the letter of marque was in

proper order.) If the seizure was upheld as lawful, the captured ship and its cargo

would be sold at auction with the proceeds divided pursuant to an established

formula between the capturing ship’s owner, the captain, first mate, and so forth.

The Records of the Federal Convention are essentially unhelpful in trying to

interpret this clause, as other than (apparently without debate) adding a

prohibition against the issuance of letters of marque by states,37 the language on

this issue was carried over from the Articles of Confederation on 18 August 1787

36 Prepared statement of Professor Jules Lobel to this subcommittee at 9 n.10. 37 U.S. CONST. Art. 10, Sec. 10, cl. 1.

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– again, apparently without discussion or debate.38 This was almost certainly

because there was no controversy in vesting this power in Congress. Even in

countries like France and Great Britain, where the power to declare war was

vested in the King, the issuing of letters of marque and reprisal was regulated by

statute. It was a power very closely related to the property rights of individual

citizens, and a practice heavily regulated under both international and domestic

laws – virtually always involving judicial process. As “laws” were needed to

establish the “rules,” to confirm under what circumstances title to private property

would pass to new owners, and to provide punishment for offenders, it was a

power for which the Executive alone was not institutionally competent. It was

also a process that did not require for its success the institutional competencies of

the Executive, such as a need for unity of plan, secrecy, or speed and dispatch.

But the key point here is that the language “letters of marque and reprisal” was

not a synonym for all acts by a State involving the use of armed force, as

Professor Lobel apparently would have you believe; it was a very specific type of

“force short of war” that under our Constitution was vested expressly in Congress.

The United States government has not issued a letter of marque since the War of

1812, and the practice was outlawed on 16 April 1856 by the Declaration of Paris,

which provided that “[p]rivateering is, and remains, abolished.”39

Presidential War Powers

Let me return to Dr. Fisher’s assertion that the Constitution vests the entire

“power of war” in Congress. Candidly, this is absurd.40 The business of “war”

38 2 MAX FARRAND, RECORDS OF THE FEDERAL CONVENTION 326. 39 Reprinted in 1 THE LAW OF WAR: A DOCUMENTARY HISTORY (Leon Friedman ed. 1972). The United States participated in the negotiations but in the end refused to agree to outlawing privateering – arguing that the entire right of capturing private property on the high seas should also be abolished – however, it thereafter abided by the terms of the agreement, abstaining from issuing letters of marque during the Spanish-American War. F. E. SMITH, INTERNATIONAL LAW 124-25 (1911). 40 In fairness, in Talbot v. Seeman Chief Justice Marshall did refer to “the whole power of war being, by the Constitution of the United States, vested in Congress,” but that statement is both dicta and clearly at odds with the expressed grant of war power to the President I shall discuss.

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was viewed by Locke, Blackstone, Montesquieu, and the Founding Fathers as by

its nature a part of the “executive” power of government. As Hamilton noted, the

power of Congress to declare war was an “exception” to this general grant of

power to the President and thus was to be construed narrowly.41

Similarly, in a September 6, 1789, letter to Madison from Paris, Jefferson praised

the wisdom of the new Constitution, noting: “We have already given in example

one effectual check to the Dog of war by transferring the power of letting him

loose[42] from the Executive to the Legislative body, from those who are to spend

to those who are to pay.”43 Since the power to “make war” had been vested under

the Articles of Confederation in the Continental Congress, Jefferson clearly was

not saying the Constitution had “transferred” that power from where it had been

under the Articles of Confederation – he was talking about where the power

existed “in nature” as affirmed by the leading publicists like Montesquieu and

Blackstone. And as an inherently “executive” power; and, as we have seen,

Jefferson argued that the “negatives” vested in the Senate (or Congress) should be

“construed strictly.”44

The President clearly has very important “war” powers that are beyond the

direct45 control of Congress. In language just as clear as the Article I, Section 8,

grant to Congress of the power “to declare War,” Article II, Section 2, made the

President the “Commander in Chief.” That, too, was an important component of

“the power of war” – and it was denied to Congress, inter alia, because of the 41 See supra, note 16 and accompanying text. 42 Before he purchased his first “polygraph” machine that made duplicate copies of his correspondence with a second quill pen, Jefferson would routinely copy his letters for his own files (and often again to send to others), and in doing so he would frequently improve upon the original in some ways. The above language is from the copy of this letter found in Madison’s papers. Jefferson’s own copy said instead that we had transferred the power “of declaring war” – making it clear that was to what he was referring. Presumably he decided that he had mixed his metaphor and changed the final version to reference letting loose the dogs of war to correct that problem. 43 15 PAPERS OF THOMAS JEFFERSON 397. 44 See supra, note 14 and accompanying text. 45 In a non-defensive setting, if Congress refuses to authorize war – or in any setting if it refuses to raise and support an army or other military forces or to provide the necessary funds – the President may not usurp legislative authority in order to fight or continue a war.

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importance the Framers placed upon separating the purse from the sword. A

major argument in both the Philadelphia Convention and the state ratification

conventions was that the mingling of the power of the purse and the power of the

sword would inevitably lead to tyranny.

Indeed, in several of the state ratification conventions, opponents of the proposed

Constitution argued that the vesting in the new federal government of both the

“power of the purse” and the “power of the sword” was a dangerous breach of

Montesquieu’s famous maxim. Madison answered this challenge in Virginia,46 as

did Hamilton in New York.47 Hamilton’s analysis was typical:

We have heard a great deal of the sword and the purse. It is said our liberties are in danger, if both are possessed by Congress. Let us see what is the true meaning of this maxim, which has been so much used, and so little understood. It is, that you shall not place these powers either in the legislative or executive, singly; neither one nor the other shall have both, because this would destroy that division of powers on which political liberty is founded, and would furnish one body with all the means of tyranny. But when the purse is lodged in one branch, and the sword in another, there can be no danger. All governments have possessed these powers; they would be monsters without them, and incapable of exertion.48

46 See, e.g., Madison comment in the Virginia Convention on 14 June 1788:

Mr. Chairman, the honorable gentleman has laid much stress on the maxim, that the purse and sword ought not to be put in the same hands, with a view of pointing out the impropriety of vesting this power in the general government. But it is totally inapplicable to this question. What is the meaning of this maxim? Does it mean that the sword and purse ought not to be trusted in the hands of the same government? This cannot be the meaning. . . . The only rational meaning, is, that the sword and purse are not to be given to the same member. Apply it to the British government, which has been mentioned. The sword is in the hands of the British king. The purse in the hands of the parliament. It is so in America, as far as any analogy can exist. . . . I can see no danger in submitting to practice an experiment which seems to be founded on the best theoretical principles.

5 THE WRITINGS OF JAMES MADISON 195-97 (Gaillard Hunt, ed. 1904). 47 5 THE PAPERS OF ALEXANDER HAMILTON 20. 48 2 ELLIOT’S DEBATES 348-49.

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A sharp distinction was made by the Founding Fathers between the common

aspiration to avoid offensive (aggressive49) wars, and the need to remain strong to

deter or defeat the offensive adventures of foreign governments. In Federalist

No. 34, for example, Hamilton spoke of “tying up the hands of Government from

offensive war, founded upon reasons of state”; but argued “certainly we ought not

to disable it from guarding the community against the ambition or enmity of other

Nations.”50

This offensive-defensive distinction was also apparent from Madison’s notes on

the debates in the Philadelphia Convention on this issue, and I am pleased to note

was acknowledged as well by most of the academic witnesses during your April

10 hearing. Basically, the role of Congress with respect to the initiation of armed

conflict is a veto or “negative” over a presidential decision to launch a major

aggressive “war” against another sovereign State in a non-defensive setting. For

example, when Henry Clay and other congressional leaders were told by President

Jackson that he had decided to use military force to compel the French

government to pay a debt the French executive had acknowledged was legitimate

(based upon damage done to American shipping during the reign of Napoleon),

but for which the French National Assembly had not yet found it expedient to

appropriate money, Clay and his colleagues told Jackson essentially to forget

about it and the matter quickly came to an end. Without the support of Congress,

Jackson acknowledged he could not initiate such a war. 51

A good description of the Commander-in-Chief power is provided by Alexander

Hamilton in Federalist No. 69:

49 The term “aggressive” has different meanings in the law of jus ad bellum (governing the initiation of hostilities) and jus in bello (governing the conduct of military operations), and for purposes of this discussion we are talking about the former. Thus, when General Douglas MacArthur during the Korean War responded to North Korean aggression by the Inchon Landing rather than a more “defensive” strategy, that did not turn the U.S. led United Nations peacekeeping force into “aggressors” in a jus ad bellum sense. 50 THE FEDERALIST No. 34 at 211-12. 51 This incident is discussed in 1 WILLIAM GOLDSMITH, THE GROWTH OF PRESIDENTIAL POWER 489-513.

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The President is to be the “Commander in Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons . . . ; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene on extraordinary occasions both houses of the Legislature . . .; to take care that the laws be faithfully executed; and to commission all officers of the United States.” In most of these particulars the power of the President will resemble equally that of the King of Great Britain and of the Governor of New-York. The most material points of difference are these – First; the President will have only the occasional command of such part of the militia of the nation, as by legislative provision may be called into the actual service of the Union. The King of Great-Britain and the Governor of New-York have at all times the entire command of all the militia within their several jurisdictions. In this article therefore the power of the President would be inferior to that of either the Monarch or the Governor. Secondly; the President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It 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; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.52

I submit that “the supreme command and direction of the military and naval

forces” is in fact a very great power, giving the President complete control over

the actual conduct of military operations (whether authorized by Congress or

initiated by another State). Congress may not lawfully interfere with the business

of the Commander in Chief. It may refuse to create and fund an army, but – as

Senator Borah recognized – once it is created the President is the sole

commander.

52 THE FEDERALIST No. 69 at 464-65.

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Just two years ago, the Supreme Court reaffirmed this important principle in the

Hamdan case, when Justice Stevens quoted classic language from Chief Justice

Chase in the 1866 case of Ex Parte Milligan:

The Constitution makes the President the "Commander in Chief" of the Armed Forces, Art. II, §2, cl. 1, but vests in Congress the powers to "declare War . . . and make Rules concerning Captures on Land and Water," Art. I, §8, cl. 11, to "raise and support Armies," id., cl. 12, to "define and punish . . . Offences against the Law of Nations," id., cl. 10, and "To make Rules for the Government and Regulation of the land and naval Forces," id., cl. 14. The interplay between these powers was described by Chief Justice Chase in the seminal case of Ex parte Milligan:

"The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. . . . Congress cannot direct the conduct of campaigns . . . .53

I would respectfully suggest that last year’s congressional efforts to prevent the

so-called “surge” – which most experts now seem to acknowledge greatly

improved our military position in Iraq – was a flagrant and unconstitutional

interference with the President’s Commander-in-Chief power. For few decisions

in war are more fundamental to the command function than deciding when to call

up reserves from a rear area.

Thomas Jefferson and the Barbary Pirates

I understand that at earlier hearings on this issue a discussion took place about

Thomas Jefferson and the Barbary Pirates. This is an issue I have researched

53 Hamdan v. Rumsfeld, 548 U.S. 326-27 (2006).

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extensively, and it might be useful for me to correct some of the mythology that

exists on the subject. A great deal of misunderstanding exists over the facts

surrounding Thomas Jefferson’s first annual message to Congress, in which he

said:

One of the Tripolitan cruisers having fallen in with, and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after heavy slaughter of her men, without the loss of a single one on our part. Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether by authorizing measures of offence, also, they will place our force on an equal footing with that of its adversaries.

I am a great admirer of President Jefferson (who among his many other

accomplishments founded the University where it has been my pleasure to teach

these past 20 years), but the reality is he clearly misrepresented the facts to

Congress. I found a microfilm copy of his hand-written notes from his first

Cabinet meeting on May 15, 1801, and they make it very clear that the strong

consensus was that if the Barbary Pirates had declared war against the United

States the President could respond with force without even consulting Congress:

May 15, 1801 Shall the squadron now at Norfolk be ordered to cruise in the Mediterranean What shall be the object of the cruise [Attorney General Levi] Lincoln. our men of war may repel an attack on individual vessels, but after the repulse, may not proceed to destroy the enemy; . . . . [Treasury Secretary Albert] Gallatin. to declare war & to make war is synonymous. The Exve. can not put us in a state of war, but if we be put in that state either by the decl. of Congress or of the other nation, the command & direction of the public force then belongs to the Exve.

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[Acting Navy Secretary] Smith. if a nation commences war, the Exve is bound to apply the public force to defend the country. [Secretary of War Henry] Dearborne. the expedition should go forward openly to protect our commerce against the threatened hostilities of Tripoli. [Secretary of State James] Madison. that the cruise o’t to be undertaken, & the Subject openly declared to every nation. all concur in the expediency of cruise. Whether the captains may be authorized, if war exists, to search for & destroy the enemy: . . . wherever they can find them? all except mr. L. agree they should, M.G.&S. think they may pursue into the harbours, but M. that they may not enter but in pursuit.54

Only Attorney General Lincoln took the view that our ships could only fend off

attacks, and he was by far the least important figure in the debate. (In those days

the Attorney General had no office and did not even control the U.S. attorneys. A

Republican from Federalist New England, Lincoln was added to Jefferson’s

cabinet primarily as a means of gaining intelligence on what his political enemies

were doing.) The consensus was that if war had been declared against us, our

ships could “search for & destroy” enemy ships “wherever they can find them”

without involving Congress.

Now consider this communication from Acting Navy Secretary Smith to

Commodore Richard Dale:

I am . . . instructed by the President to direct, that you proceed with all possible expedition, with the squadron under your command, to the Mediterranean. . . . Should you find on your arrival at Gibraltar that…the Barbary Powers, have declared War against the United States, you will then distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce & chastise their insolence—by sinking, burning or destroying their ships & Vessels wherever you shall find them.55

54 See Robert F. Turner, State Responsibility and the War on Terror:The Legacy of Thomas Jefferson and the Barbary Pirates,4 CHI J INTL L 121 (2003). 55 1 OFFICE OF NAVAL RECORDS AND LIBRARY, NAVAL DOCUMENTS RELATED TO THE UNITED STATES WARS WITH THE BARBARY POWERS 465, 467 (GPO 1939).

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This is obviously not the story Jefferson gave to Congress that December. (And I

should add that as far as I have been able to determine, while Jefferson made no

effort to hide the sending of two-thirds of the new American Navy half-way

around the known world with instructions to sink and burn foreign ships – and,

indeed, the squadron’s departure was reported in the newspapers – Jefferson

apparently did not mention it to Congress until his December 8th annual message,

nearly nine months after the decision was made and more than six months after

the deployment occurred.)

We also have the note Commodore Dale sent to Lt. Sterret:

Sir: On the receipt of this, you will please to proceed with the United States Schooner under your Command, with all possible dispatch for the Island of Malta, there to take in [a]s much water as you can possibly bring back. . . . In your Passage to and from Malta you will not chace out of your way particularly in going, as you have not much water on board. . . . [S]hould you fall in with any of the Tripolian Corsairs that you are confident, you can Manage, on your Passage to Malta you will heave all his Guns Over board Cut away his Masts, & leave him In a situation, that he can Just make out to get into some Port, but if coming back you will bring her with you if you think you can doe it with safety. . . .”56

It is thus absolutely clear that the decision to cut away the ship’s masts and not

take it as prize was premised not upon any consideration of constitutional law but

merely on the fact that the Enterprise was traveling to Malta rather than back

from Malta when he encountered the enemy ship. Jefferson did the right thing

constitutionally in authorizing the sinking of enemy ships without prior legislative

sanction, but his typically deferential behavior in dealing with Congress has

misled scholars for decades about the realities of this incident.

56 1 OFFICE OF NAVAL RECORDS AND LIBRARY, NAVAL DOCUMENTS RELATED TO THE UNITED STATES WARS WITH THE BARBARY POWERS 465, 467 (GPO 1939).

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Not being privy to the March 15 cabinet meeting, when Alexander Hamilton read

Jefferson’s message to Congress he was livid. In response, he published what

today we would call an op-ed article, explaining:

[The Constitution provides that] “The Congress shall have power to declare War;” the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received; in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary.57

It is worth noting that Hamilton’s argument was embraced by the Supreme Court

in the Prize Cases during the Civil War.58

I find it a bit amusing to hear Dr. Fisher continue to try to reconcile Jefferson’s

actions with the Fisher war powers paradigm of legislative supremacy, by

asserting that Jefferson went to war with the approval of Congress via a number

of appropriations bills and other statutes. All of those statutes were enacted long

after Jefferson sent the Navy off to war. And the Annals of Congress show that

the legislative response to Jefferson’s December 8 message to Congress was

largely one of bemusement – with members arguing that one did not “declare

war” against “pirates,” but ultimately concluding that if the President wanted

legislation Congress would accommodate him. For the record, I have not been

able to find a single complaint from a member of either house of Congress

between the time the newspapers reported Jefferson had sent two-thirds of the

57 25 THE PAPERS OF ALEXANDER HAMILTON 455-56. 58 “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ‘unilateral.’…The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.” The Prize Cases, 67 U.S. 635, 668-669 (1866).

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American Navy to the Mediterranean and his first notification of Congress about

that fact more than six months later.

The American Commitment to War in Indochina

Mr. Chairman, because I think it is not possible to fully understand the War

Powers Resolution without understanding the context in which it was enacted, I

will now turn to a brief summary of how and why America went to war in

Indochina and why it was critically important that we do so. I hope to

demonstrate that that conflict was but a continuation of the bipartisan containment

doctrine first established under President Truman, and that Congress played a full

and willing role in sending our military to war.

In 1955 the Senate consented to the ratification of the SEATO Treaty with but a

single dissenting vote – committing the United States to come to the defense of

South Vietnam, Laos, and Cambodia59 – and that commitment was reaffirmed by

solemn statute in August 1964 (approved by a 99.6% majority of Congress), that

declared:

The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in Southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed

59 Article IV of the SEATO Treaty provided in part: “Each Party recognizes that aggression by means of armed attack in the treaty area against any of the Parties or against any State or territory which the Parties by unanimous agreement may hereafter designate, would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes.” (My emphasis.) Available on line at: http://www.yale.edu/lawweb/avalon/intdip/usmulti/usmu003.htm . The States of [South] Vietnam, Laos, and Cambodia were designated as protected by the treaty in a Protocol executing at the time the SEATO Treaty was concluded. Available on line at: http://www.yale.edu/lawweb/avalon/intdip/usmulti/usmu004.htm. See also, Senate Approves SEATO Treaty, 82-1, L.A. TIMES, Feb. 2, 1955 at 1.

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force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.60

If there was any doubt about whether Congress was authorizing the President to

take the nation to war by that statute, it should have been dispelled both by the

clear and unambiguous language of the statute and by this exchange between the

majority and minority floor leaders in the debate, Senate Foreign Relations

Committee Chairman J. William Fulbright and Ranking Republican John

Sherman Cooper:

Mr. COOPER. Then, looking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution? Mr. FULBRIGHT. That is the way I would interpret it.61

And despite the angry charges of liberal legislators and peace protestors alike in

1970, this statutory authorization clearly included Cambodia as well as South

Vietnam and Laos.

Exactly two legislators – both members of the Senate – voted ‘nay’ on the statute

authorizing the President to defend victims of Communist aggression in

Indochina, and it is worth noting that both quickly had to find a new way to make

a living following their next reelection campaign.

Indeed, another of the many myths of the Vietnam War is that President Johnson

took the nation to war against the will of the American people. In reality, LBJ’s

public approval rating in the Gallup Polls shot up 58 percent (a jump of 30 full

points) in the month surrounding enactment of the Southeast Asia Resolution and

60 Southeast Asian Resolution, Public Law 88-408, 78 Stat. 384 (emphasis added), reprinted in JOHN NORTON MOORE & ROBERT F. TURNER, NATIONAL SECURITY LAW DOCUMENTS 877 (2006). 61 110 CONG. REC. 18,049 (1964).

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Johnson’s first use of air power against North Vietnam. No matter how many

times people repeat the allegation that Vietnam was an “illegal” war that never

had the support of the American people, both charges will remain false as a matter

of clear historical record.

If anything, the record shows that Congress dragged President Johnson into the

war. Rather than approving his request for another $125 million for Vietnam at

the time of the 1964 resolution, Congress on its own initiative provided $400

million. Eight months later, Congress provided another $700 million by a vote of

408 to 7 in the House and 88 to 3 in the Senate. In 1966, a $13 billion

supplemental appropriation for Vietnam cleared the House 389 to 3 and the

Senate 87 to 2. And in 1967, when hundreds of thousands of American soldiers

were clearly involved in a serious war in Vietnam, a $12 billion Vietnam

supplemental appropriation passed the House 385 to 11 and the Senate 77 to 3 (a

combined margin of greater than 30 to 1).62

The last time I appeared before this Committee to discuss war powers was about

twenty years ago. Dante Fascell was the chairman at the time, and one of the

other witnesses on my panel was former Republican House Member Paul Findley,

arguably the most vocal House Republican supporter of the War Powers

Resolution in 1973. He explained to the Committee how Congress had been

forced to enact the War Powers Resolution in order to stop future presidents from

emulating LBJ’s decision to take the nation to war against the will of Congress

and the American people. So when my turn came to testify, I found it necessary

to remind the Committee what that same (then Congressman) Paul Findley had

said on May 23, 1961, in response to a comment made by then-Vice President

Johnson while visiting Saigon. The Vice President had informed the press that he

was not going to recommend that President Kennedy send U.S. combat troops to

62 Robert F. Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy 21 (1991).

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Vietnam, and Paul Findley was not alone in expressing his outrage on the House

Floor:

U.S. combat forces are the most effective deterrent to aggression, and we should publicly offer such forces to South Vietnam without delay. . . . No patriotic American will ever criticize President Kennedy for committing combat forces to protect freedom-loving people from aggression. Every patriot has the right and duty to criticize ineptitude and the too-little, too-late policies which invite aggression.63

The 1973 War Powers Resolution

The 1973 War Powers Resolution was expressly enacted to prevent “future

Vietnams.” It was premised entirely upon the myth that Congress had been

bypassed in going to war in Indochina, and thus the conflict was an “illegal war.”

As Senator Jacob Javits (R. NY) – generally credited as the original author of the

War Powers Resolution – explained in 1973:

The War Powers Act would assure that any future decision to commit the United States to any warmaking must be shared in by the Congress to be lawful. . . . By enumerating the war powers of Congress so explicitly and extensively in article I, section 8, the framers of the Constitution took special care to assure the Congress of a concurrent role in any measures that would commit the nation to war. Modern practice, culminating [in the] Vietnam war . . . has upset the balance of the Constitution in this respect.64

This statement was factually wrong, and Senator Javits knew that. In a March

1966 speech on the Senate floor in opposition to an amendment by Senator

Wayne Morse to repeal the 1964 Southeast Asia Resolution, Senator Javits

declared: “It is a fact, whether we like it or not, that by virtue of having acted on

63 ___ CONG. REC. 8587. 64 119 CONG. REC. 1394 (1973), quoted in TURNER, REPEALING THE WAR POWERS RESOLUTION 34.

35

the resolution of August 1964, we are a party to present policy.”65 Indeed, later

that same year, when the House of Delegates of the American Bar Association

approved a lengthy legal memorandum drafted by my friend and colleague,

Professor John Norton Moore (with whom I co-founded the Center for National

Security Law twenty-seven years ago this month) declaring the war to be lawful

under international and U.S. constitutional law, Senator Javits inserted a lengthy

excerpt from the memo in the Congressional Record and declared:

Mr. President, now, for the first time, we have an authoritative analysis of the legal basis for U.S. assistance to the Republic of Vietnam. In my own thinking there can no longer be any doubt about the legality of our assistance to the people of South Vietnam in view of the report to be distributed today by the American Bar Association. . . . I have never doubted the lawfulness of the U.S. assistance to the Republic of Vietnam. Today, it is my privilege to present to the Senate and the American people a document, which, I believe, supports this proposition beyond any reasonable doubt.66

I would add that, while serving as Acting Assistant Secretary of State for

Legislative and Intergovernmental Affairs in December 1984, it was my honor to

share a panel with Senator Javits before the American Branch of the International

Law Association in New York City. During what became essentially a debate on

the War Powers Resolution between the two of us, Senator Javits agreed with me

that portions of the 1973 statute were unconstitutional. For example, he explained

that the Senate had wanted to recognize in Section 2 of the statute the President’s

constitutional right to use force to protect American civilians abroad, but the

House had been unwilling to accept that language.

As a result, of course, were al Qaeda or some other foreign terrorist organization

to seize a cruise ship on the high seas filled with innocent Americans, or kidnap

our citizens while touring holy sites in the Middle East, Congress has by law left

the President absolutely powerless to use force to rescue them until Congress can

65 112 CONG. REC. 4374 (1966), quoted in TURNER, REPEALING THE WAR POWERS RESOLUTION 33-34. 66 Quoted in TURNER, REPEALING THE WAR POWERS RESOLUTION 87.

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assemble and enact new legislation. This part of the War Powers Resolution is

not merely flagrantly unconstitutional, as a matter of sound public policy it is

absolutely asinine.

The fact is that America went to war in Indochina pursuant to the very specific

and unambiguous authorization of Congress. The vote in the House of

Representatives was unanimous, and the combined margin in both houses was

99.6% in favor of war. Senator Thomas Eagleton actually voted against the War

Powers Resolution because he thought it did not go far enough. But even he

admitted: “Although the existence of the Tonkin Gulf Resolution did not make the

war we have waged in South Vietnam any wiser or any more explicable, it did

make it a legitimate war authorized by the Congress.”67 Similarly, former

Stanford Law School Dean John Hart Ely observed in his 1993 book, War and

Responsibility, that – “years of denial and doubletalk notwithstanding” –

Congress “authorized” each phase of the war in South Vietnam and Cambodia.68

Indeed, when the Senate Foreign Relations Committee in 1967 approved the

“National Commitments Resolution” declaring that the President could not

commit the nation to armed conflict on his own authority, it acknowledged in its

report: “The committee does not believe that formal declarations of war are the

only available means by which Congress can authorize the President to initiate

limited or general hostilities. Joint resolutions such as those pertaining to . . . the

Gulf of Tonkin are a proper method of granting authority.”69

So one of the points that I hope each of you will take away from this hearing is

that the War Powers Resolution was enacted as a hoax70 on the American voters.

67 Thomas Eagleton, Congress and the War Powers, 37 MO. L. REV. 1, 14-15 (1970). (emphasis added). 68 JOHN HART ELY, WAR AND RESPONSIBILITY 12 (1993). 69 S. Rep. No. 797, 90th Cong., 1st Sess. 25 (1967). 70 By this term I mean that many of the more senior co-sponsors knew very well that Congress had been a full partner in getting the United States committed to war in Indochina, and while they assured the voters that the new statute would “prevent future Vietnams” they clearly knew that by its own terms it recognized the constitutionality of armed conflicts approved by “specific statutory

37

Its sponsors and supporters portrayed it as a statute that would prevent future

Vietnams; but, in reality, had it been enacted decades earlier it would not have

prevented that conflict. Section 2(c) of the War Powers Resolution provides in

part:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.71

The August 1964 Southeast Asia Resolution clearly provided the “specific

statutory authorization” for the President to take the nation to war. And in

fairness, some of the more principled veterans could not tolerate this revisionism.

Senator Sam Ervin – perhaps the most respected constitutional scholar in

Congress at the time – told the Senate in 1970:

Now, Mr. President, I maintain that the Gulf of Tonkin resolution, which is technically known as the Southeast Asia resolution, constitutes a declaration of war in a constitutional sense . . . . I am certain that when Congress passed the Gulf of Tonkin joint resolution, it was aware of what authority it was granting to the President of the United States . . . . I contend that the Gulf of Tonkin joint resolution is clearly a declaration of war.72

The Unconstitutionality of the War Powers Resolution Mr. Chairman, in reading the testimony of the academic panel members two

weeks ago, I was amused at their reassurance that only two or three provisions of

authorization,” which had clearly occurred in Indochina. However, I don’t doubt that many of the more junior members who may have been unfamiliar with the conflict’s history honestly believed they were doing a good thing. 71 War Powers Resolution, Public Law 93-148 [H.J. Res. 542], 87 Stat. 555; 50 U.S.C. §§ 1541-1548; passed over presidential veto Nov. 7, 1973 (emphasis added). 72 ______

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the War Powers Resolution have ever been challenged on constitutional grounds –

and these could be easily fixed by a few judicious amendments.

Let me be clear. In addition to the Chadha problem in Section 5 (c), and the

unconstitutional problem of denying the President’s clear constitutional right to

rescue endangered private citizens abroad in Section 2(c), there is a far more

fundamental problem. The Constitution gives the Congress the power “to declare

War,” while the War Powers Resolution attempts to assert control in every setting

in which U.S. forces are sent “into hostilities, or into situations where imminent

involvement in hostilities is clearly indicated by the circumstances.”73 This is a

far broader power than the one granted to Congress in the Constitution, and

because of that the underlying basis of the Resolution is flagrantly

unconstitutional.

I think former Senate Majority Leader George Mitchell captured the character of

the War Powers Resolution on May 19, 1988, when he said on the Senate floor:

Although portrayed as an effort “to fulfill”—not to alter, amend or adjust—“the intent of the framers of the U.S. Constitution,” the War Powers Resolution actually expands Congress’ authority beyond the power to declare war to the power to limit troop deployment in situations short of war . . . . By enabling Congress to require—by its own inaction—the withdrawal of troops from a situation of hostilities, the resolution unduly restricts the authority granted by the Constitution to the President as Commander in Chief. …[T]he War Powers resolution does not work, because it oversteps the constitutional bounds on Congress’ power to control the Armed Forces in situations short of war and because it potentially undermines our ability to effectively defend our national interests. The War Powers Resolution therefore threatens not only the delicate balance of power established by the Constitution. It

73 ______

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potentially undermines America’s ability to effectively defend our national security.74

I could not have said it better.

A Humanitarian Quest

I noted at the beginning of my remarks that my interest in this topic is “personal”

as well as academic, and so that you will understand the intensity of some of my

personal feelings on this issue, it may be prudent for me to explain a bit. As a

junior Army officer in the late 1960s and early 1970s, I served twice in Vietnam

and later returned repeatedly as a Senate staff member. I lost friends and

witnessed the deaths of many good people in that war, and like many veterans I

still carry emotional scars from witnessing first-hand our betrayal of a solemn

national commitment to defend the people of the Protocol States to the 1954

SEATO Treaty (South Vietnam, Laos, and Cambodia), a commitment perhaps

most eloquently expressed in President John F. Kennedy’s 1961 Inaugural

Address:

Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans—born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage—and unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed, and to which we are committed today at home and around the world. Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty. This much we pledge—and more.

74 Congressional Record, May 19, 1988.

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I was the last congressional staff member in Vietnam at the time of the final

evacuation thirty-three years ago this month. My mission—which, sadly, was a

complete failure—was to try to rescue orphans from Cambodia before Pol Pot’s

Khmer Rouge Communists seized power. I had gotten to know Graham Martin,

our last Ambassador to Saigon, over the years – I knew him to be a great

American patriot and outstanding public servant – and he was kind enough to

assist me in my humanitarian quest. On April 9th the Saigon Embassy forwarded

my request for clearance to travel to Phnom Penh (See Figure 175), which was

impeded by a numerical limit placed on the number of American government

personnel permitted in Cambodia at any one time – a limit imposed to appease an

angry Congress.

Eight days later, after patiently waiting in Saigon for clearance (while assisting

with preparations for the evacuation of Vietnamese orphans), I received a note at

my hotel from George Jacobson, the Special Assistant to the Ambassador for

Field Operations, who was a legendary figure, among other things, for his

heroism during the 1968 Tet Offensive.

I immediately rushed to the Embassy to learn more and, hopefully, to explore the

possibility of appealing the decision. I had traveled extensively around Cambodia

the previous year and studied and written about Cambodian Communism for

years76; and I had no illusions about the ruthless nature of the Khmer Rouge. As I

turned a corner by one of Saigon’s ubiquitous newspaper stalls,77 I saw the banner

headlines in the Saigon Post: “PHNOM PENH FALLS.” I was too late. And

because I was too late, a large number of innocent children were murdered. Four

75 See, e.g., Dep’t of State Telegram, Saigon 4613, 09117Z APR 75, from Ambassador Graham Martin to American Embassy Phnom Penh, Subject: “Orphans – Phnom Penh,” available on line at: http://www.virginia.edu/cnsl/bio/turner.html. 76 See, e.g., Robert F. Turner, Cambodia, 1972 YEARBOOK ON INTERNATIONAL COMMUNIST AFFAIRS 457 (Richard F. Staar, ed. 1972); Robert F. Turner, Cambodia, 1973 YEARBOOK ON INTERNATIONAL COMMUNIST AFFAIRS 420 (Richard F. Staar, ed. 1973). 77 Despite widespread assertions in this country that South Vietnam was a “dictatorship” lacking civil liberties, it had a remarkably free press – with about two-dozen independent papers in Saigon alone. For a good discussion of this issue, see Daniel Southerland, Free-swinging press keeps Saigon ducking, CHRISTIAN SCIENCE MONITOR, Sept. 18, 1970.

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days later, the Saigon Post began reporting about executions and beheadings in

Cambodia, citing as one source of authority transmissions from the Communist

Khmer Rouge Radio.

Given the affirmative congressional role in making it a reality, it is important to

understand what actually happened in Cambodia after Congress cut off all funds

for its defense in 1973. As my good friend Professor R. J. Rummel observed in

his 1994 classic volume, Death By Government—for which he was nominated by

the Deputy Prime Minister of Sweden for the Nobel Peace Prize—“no other

megamurderer comes even close to the lethality of the communist Khmer Rouge

in Cambodia during their 1975 through 1978 rule.”78

As I trust you know, those orphans I was hoping to rescue were among the

estimated 1.7 million human beings – according to the Yale University Cambodia

Genocide Program,79 more than 20% of the population of that beautiful nation –

who were murdered by the Communists after the U.S. Congress gratuitously

allowed them to seize control by making it unlawful for the President to spend a

nickel fulfilling America’s solemn and repeated promise to defend them.80 So I

hope you will forgive me if you perceive that this legacy of your predecessors in

office still upsets me.

Josef Stalin is said to have once remarked that “a single death is a tragedy: a

million deaths is a statistic.”81 The American people will sit glued to their

78 R. J. RUMMEL, DEATH BY GOVERNMENT 5 (1994). 79 Although many experts estimate the human cost of Pol Pot’s regime at two million or more (see, e.g., id.; and STÉPHANE COURTOIS et al., THE BLACK BOOK OF COMMUNISM 588-603 (Harvard University Press, 1999), I have been particularly impressed by the Yale Cambodia Genocide Project, which placed the dead at 1.7 million. See: http://www.yale.edu/cgp/. 80 “Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended 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.” Public Law 93-52, 87 Stat. 130, Continuing Appropriations, 1974, §108, reprinted in JOHN NORTON MOORE & ROBERT F. TURNER, NATIONAL SECURITY LAW DOCUMENTS 886 (2006). 81 A Google search of this alleged Stalin quotation returned more than 18,000 “hits,” but there appears to be some doubt about whether Stalin actually made the statement. It doesn’t really

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television sets praying that little Suzie in Peoria is rescued from a well. But many

Americans simply can’t comprehend the idea of hundreds of thousands of people

starving to death in Ethiopia or Somalia, or being slaughtered by Genocide in

Rwanda or Darfur. And the murder of nearly two million human beings in

Cambodia is totally lost on many Americans. It just doesn’t seem to compute.

I find it sometimes helps people to understand what I am talking about when I

share with them National Geographic Today’s 2004 story on the “Killing Fields”

of Cambodia, which noted that, to save bullets, small children were often

eliminated simply by picking them up by their tiny little legs and bashing them

against trees until their lifeless bodies stopped quivering.82 And even fewer

Americans understand that it was the United States Congress, succumbing to

pressures from “peace” and “human rights” groups, which passed a law

preventing our government from even trying to protect these people.

As a Senate staff member, I traveled extensively around Cambodia during May

1974, flying in a small “Air America” Pilatus Porter STOAL (short take-off and

landing) prop airplane. Because the Communists were already within .50-caliber

range of most of the airports, we had to fly a tight circular descent and then land

in the small dirt strip that was “Main Street” to the small Cambodian towns. Each

take-off and landing was an adventure.

What I found in Cambodia was a beautiful country with a rich and peaceful

heritage and some of the most gentle people I have ever encountered. Like the

tens of millions of Vietnamese who were consigned to a Stalinist tyranny by this

same legislation, these were people our country had repeatedly pledged to defend.

matter, as the observation that many people have difficulty comprehending the idea of more than a million human beings being slaughtered is a valid one. 82 Zoltan Istvan, “Killing Fields” Lure Tourists in Cambodia, NATIONAL GEOGRAPHIC TODAY, Jan. 10, 2003, available on line at: http://news.nationalgeographic.com/news/2003/01/0110_030110_tvcambodia.html .

43

Instead, we allowed them to be butchered because Congress was anxious to assert

its “war powers” by undermining an ongoing war.

Now some of you may be wondering why I am talking about Cambodia and

Vietnam at a hearing on “War Powers in the Twenty-First Century.” The answer

is simple – if you want to understand the current legal regime governing war

powers, you must understand the Vietnam War, and the assault on the

Constitution perpetrated by Congress at the end of the war and in the years that

followed.

It is fitting that this is the subcommittee that deals with issues of “human rights,”

because the congressional usurpation of constitutional power that led to our defeat

in Indochina was in no small part justified in the name of “human rights.” And

yet, in reality, while acting no doubt in the honest belief that it was promoting

human rights, the U.S. Congress was a major contributing factor in setting the

stage for the greatest Genocide, on per-capita basis, of the Twentieth Century. I

will say more on this later, but first some historical background may be helpful.

The American Commitment to Defend Indochina

Mr. Chairman, there is so much misinformation about America’s role in

Indochina that it may be useful to at least briefly outline and explain how it all

happened.

The “Containment Doctrine”

Having been allies in the successful struggle against Adolf Hitler in World War II,

there was considerable hope in this country following that conflict that America

and the Soviet Union could coexist peacefully and perhaps even become friends.

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This option quickly was seen as illusionary when George Kennan, the Charge

d’Affaires at the U.S. Embassy in Moscow, sent his famous “Long Telegram”83 to

the Department of State on February 22, 1946. Kennan reported that the goal of

world revolution – promoted by the Communist International (Third International,

or Comintern), which had been officially dissolved in 1943 – was still very much

a key objective of the Communist Party of the Soviet Union. Moscow was clearly

not interested in a genuine, long-term, “peaceful coexistence,” and would

maneuver to expand its influence by any means it felt might be effective,

including the use of armed force either overtly or covertly.

This perception was reinforced by Communist aggression against Greece that

began in 1946 and which led President Truman to go before a joint session of

Congress on March 12, 1947, to proclaim what has often been called the “Truman

Doctrine”:

I believe that it must be the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures. . . . [W]e cannot allow changes in the status quo in violation of the Charter of the United Nations by such methods as coercion, or by such subterfuges as political infiltration. . . . The free peoples of the world look to us for support in maintaining their freedoms. If we falter in our leadership, we may endanger the peace of the world – and we shall surely endanger the welfare of this Nation.84

In addition to providing aid to Greece and Turkey and the subsequent Marshall

Plan,85 the United States took the lead in uniting most of Western Europe under

83 George Kennan, The Long Telegram, reprinted in NATIONAL SECURITY LAW DOCUMENTS 29, 31, 32 (John Norton Moore, Guy B. Roberts & Robert F. Turner, eds., 2nd ed., 2006). 84 Harry S Truman, Special Message to the Congress on Greece and Turkey, March 12, 1947, reprinted in NATIONAL SECURITY LAW DOCUMENTS 29, 31, 32 (John Norton Moore, Guy B. Roberts & Robert F. Turner, eds., 2nd ed., 2006). 85 The European Recovery Program (“Marshall Plan”) began in July 1947 and provided $13 billion in assistance to European allies to help strengthen their economies over the next four years

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the banner of the North Atlantic Treaty Organization (NATO) in April 1949, with

a commitment by each of the twelve Parties to respond to armed aggression

against any member of the treaty. When it was learned that the Soviet Union had

successfully exploded a nuclear device in August 1949, and Communist forces led

by Mao Zedong seized control of mainland China two months later, President

Truman realized America needed a new strategic plan. He called upon Paul

Nitze, the highly regarded head of the Policy Planning Staff at the Department of

State, to chair a team of half-a-dozen experts to prepare a policy paper on the

Soviet threat and how the United States should respond. After two months of

effort, on April 14, 1950, the team produced a highly classified 58-page document

known as “NSC-68”86 that described a growing and serious Soviet threat and

recommended a policy of “containment.”

The June 25, 1950, North Korean invasion of South Korea reaffirmed concerns

about Soviet goals of world conquest,87 and at the end of September President

Truman formally approved NSC-69. Throughout the 1950s and well into the

1960s, there was a broad and bipartisan agreement on the need for the United

States to take the lead in defending victims of Communist aggression.

The Origins of the American Commitment to Defend South Vietnam, Laos, and Cambodia

Almost immediately upon taking power in October 1949, Mao began providing a

wide range of assistance to Ho Chi Minh’s “Viet Minh”88 forces in French

– in the hope that stronger economies would make the people of these countries less susceptible to Communist influence. 86 Reprinted in NATIONAL SECURITY LAW DOCUMENTS at 35. 87 For information on Stalin’s personal role in approving the Korean War, see an interesting monograph authored by a retired CIA and DIA analyst and published by our Center for National Security Law. WILLIAM T. LEE, THE KOREAN WAR WAS STALIN’S SHOW (1999). 88 The “League of Vietnamese Independence” (Viet Nam Doc Lap Dong Minh Hoi) was formed by the Indochinese Communist Party following a Comintern directive instructing all non-ruling Communist parties to unite with nationalists and social organizations in “united fronts” under Communist Party leadership. While Ho and his ICP friends totally controlled the Viet Minh, it is

46

Indochina – including supplying political and military advisers and weaponry

from small arms to heavy artillery.89 This equipment was instrumental in

facilitating the Viet Minh defeat of French forces in the 1954 Battle of Dien Bien

Phu.90

Ho Chi Minh as a “Titoist” Nationalist

Few myths of the Vietnam War are more easily repudiated than the assertion that

Ho Chi Minh was really a “nationalist” – some went so far as to characterize him

as Vietnam’s “George Washington.” In fact, as numerous official biographies

published in Hanoi readily admit, more than forty years before the United States

became seriously involved in combat in Vietnam Ho had co-founded the French

Communist Party and spent decades traveling around the world as a paid agent of

the Communist International on a Soviet passport.91

Indeed, according to official Vietnamese Communist [“Workers”] Party (Dang

Lao Dong Viet Nam) accounts, when Ho took part in the February 1930

conference in Macao that established the Indochinese Communist Party (ICP), he

was present “in his capacity as a representative of the Communist International,”92

and the following year the ICP “was recognized as a cell of the Communist

International.”93

Those who characterized Ho as “independent” and a “nationalist” – a potential

“Asian Tito” – showed considerable ignorance of reality. In fact, shortly after

Tito’s Yugoslavia was expelled from the Cominform94 in 1948, Viet Minh radio

likely that many Viet Minh supporters were unaware of that fact. ROBERT F. TURNER, VIETNAMESE COMMUNISM: ITS ORIGINS AND DEVELOPMENT 29-30. 89 Id. at 79-86 (1975). 90 Id. at 82-86. 91 Id. at 1-14. 92 AN OUTLINE HISTORY OF THE VIETNAM WORKERS’ PARTY, (Hanoi: Foreign Languages Publishing House, 1970) at 14. 93 Id. at 20. 94 The Communist Information Bureau (Cominform) was a successor to the Comintern.

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began denouncing Tito as “a spy for American imperialism.”95 When Ho in 1950

called upon all nations to recognize his “Democratic Republic of Vietnam,” Tito’s

Yugoslavia was one of the first to respond with an offer of diplomatic recognition.

But Ho’s government – which would have been delighted had the United States

offered recognition – rejected Tito’s offer and refused to recognize Yugoslavia.96

Now some might argue that this was tactically necessary given Ho’s reliance on

Soviet and Chinese military assistance and in view of Stalin’s feud with Tito. But

were that the explanation, one might have assumed that Ho would have embraced

Tito, just as Nikita Khrushchev did following Stalin’s death.

Ho did visit Belgrade in 1957 while traveling through Eastern Europe, but upon

his return to Hanoi, a senior member of his delegation declared: “All frenzied

attacks of imperialism in every form, particularly under the signboards ‘national

communism’ or ‘revisionism,’ aimed at sowing discord among and destroying the

forces of socialism will certainly be smashed by the monolithic solidarity of

brotherly parties and countries in the socialist camp headed by the Soviet

Union.”97 At the Third Party Congress in Hanoi in September 1960, Party First

Secretary Le Duan declared “modern revisionism remains the main danger for the

international communist movement.”98

Hanoi’s Support for Soviet Intervention in Hungary, Czechoslovakia, and Afghanistan

One of the issues that split Communist parties around the world between those

completely loyal to Moscow (or committed to a hard-line position on dissidence)

and those possibly more sympathetic to “Titoism” was foreign intervention to

95 TURNER, VIETNAMESE COMMUNISM 282 (cited to New York Times, Mar. 16, 1950). 96 BERNARD B. FALL, THE VIET-MINH REGIME 56 (rev. ed. 1956), quoted in ROBERT F. TURNER, MYTHS OF THE VIETNAM WAR: THE PENTAGON PAPERS RECONSIDERED 10-11 (1971). 97 TURNER, VIETNAMESE COMMUNISM 284. 98 Id. at 285.

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impose orthodoxy when a Party or ruling government departed from Moscow’s

line. It is worth noting that Hanoi was fully supportive of the Soviet intervention

in Hungary in 1956, in Czechoslovakia in 1968, and in Afghanistan in 1979.

Indeed, when Hanoi’s puppet National Assembly passed a resolution praising the

Soviet intervention, Ho Chi Minh remarked: “This declaration testifies to the

international solidarity between our country and the Socialist countries headed by

the Soviet Union. . . . The Vietnamese people are very glad to see that the

brotherly Hungarian people, with the just help of the Soviet Army, have united

and struggled to frustrate the dark schemes of the imperialists.”99

On the issue of Titoism, First Secretary Le Duan also wrote: “The modern

revisionists represented by the Tito clique in Yugoslavia are trumpeting that the

nature of imperialism has changed,” concluding: “if we want to lay bare the

aggressive and bellicose nature of imperialism . . . the Communist and Workers

parties must necessarily direct their main blow at revisionism.”100

Hanoi’s Support for Mao’s Theory of “People’s War” to Spread Communism

People who say that Vietnam was an “unnecessary” war are in my view mistaken.

Indeed, had the United States simply decided to walk away from its SEATO

commitment to defend the non-Communist countries of former French Indochina,

it could have paved the way for us to lose the Cold War. That is admittedly a

strong statement – and hardly conventional wisdom – so let me explain.

After the Korean War, President Eisenhower realized that it was not in our

interest to get into another land war exchanging U.S. ground forces for Chinese

Communist forces. The numbers simply weren’t on our side. So he and

Secretary of State John Foster Dulles came up with the “New Look Doctrine,”

99 4 HO CHI MINH, SELECTED WORKS 220. See also, TURNER, MYTHS OF THE VIETNAM WAR 11. 100 For a detailed discussion of the Party’s attitude towards “Titoism” and “Revisionism,’ see TURNER, VIETNAMESE COMMUNISM 279-86.

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that basically put Moscow on notice that any further aggression anywhere would

be met asymmetrically by “massive retaliation” at a place and time of America’s

choosing. In other words, if the Soviets or China invaded another nation,

America might just respond with nuclear weapons aimed at Moscow. It was an

effective strategy when set forth in NSC-162/2 in 1953, and it clearly deterred

Nikita Khrushchev. Equally importantly for Eisenhower, it allowed America to

dramatically cut military expenditures by reducing the size of the Army and

relying almost entirely on Strategic Air Command and other nuclear capabilities.

But things changed over the next decade. As U.S. conventional forces were being

significantly reduced, the Communist world was rapidly increasing its military

arsenals across the board. Perhaps far more importantly, the Soviet Union

improved its own nuclear capability, and the 1957 launch of Sputnik raised the

possibility that a “missile gap” had left America inferior to Soviet ballistic missile

technology. Ike’s threat of “massive retaliation” was in jeopardy, for any nuclear

attack on the USSR was almost certain to provoke a nuclear response against

targets in America. Was it a credible deterrent for the United States to try to

defend vulnerable Third World nations with threats of using nuclear weapons

against Moscow – knowing that the immediate response would be nuclear attacks

on Washington, New York, and other American cities? The clear answer was no

– America was not going to endanger millions of lives in major American cities in

order to prevent a successful Communist revolution in Saigon or Bangkok.

To make matters a bit more complex, Mao concluded that it was not even

necessary to send tens of thousands of soldiers across international borders to

ensure Communist victories country by country. By secretly funding, training,

and supplying guerrilla movements – and virtually every Third World country had

dissident elements who were out of power and might be receptive to foreign

assistance that promised to help overthrow the existing power structure – the

Communists could covertly overthrow foreign governments as effectively as by

sending in infantry divisions, but without the same risks.

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In January 1959, Fidel Castro (and his key military adviser, Ché Guevara) seized

power in Cuba through a guerrilla revolution, just ninety miles off the coast of the

United States. America did virtually nothing to prevent it. Communist

movements throughout the Third World quickly began questioning the wisdom of

Moscow’s instructions to avoid “armed struggle” until a more favorable situation

developed, and in many of those countries the heads of Moscow-line Communist

parties embraced the Maoist/Castroite line that victory could be won by guerrilla

tactics without fear of an effective American response. The conflict in Indochina

quickly became seen by all sides as a “test case” of whether the United States

could prevent the global expansion of Marxist-Leninism by force through “Wars

of National Liberation” or “People’s War.”

Mao made a very clever argument. He acknowledged that America had powerful

nuclear weapons and said he did not favor a nuclear war. But, by shifting from

Korea-style invasions to expand Communism to “people’s wars,” in which

Communist guerrillas would live among the people and conduct small military

operations mostly at night, the Americans would not be able to use their nuclear

weapons without killing far more friendly (what the Communists referred to as

“puppet”) forces and innocent civilians than guerrillas.

Mao explained:

The atom bomb is a paper tiger which the U.S. reactionaries use to scare people. It looks terrible, but in fact it isn’t. Of course, the atom bomb is a weapon of mass slaughter, but the outcome of a war is decided by the people, not by one or two new types of weapons. All reactionaries are paper tigers. In appearance, the reactionaries are terrifying, but in reality they are not so powerful. From a long-term point of view, it is not the reactionaries but the people who are really powerful.101

As early as 1938, Mao had argued that instead of attempting to spread Communist

101 COMRADE MAO TSE-TUNG ON “IMPERIALISM AND ALL REACTIONARIES ARE PAPER TIGERS 17-18 (Peking: Foreign Languages Press, 1966).

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revolution in the cities and advancing into the countryside—the theory advanced

by revolutionaries in the western “capitalist countries”—in China it was better

“not to seize the big cities first and then occupy the countryside, but the

reverse.”102

In 1965, Lin Biao, the Vice Chairman of the Central Committee of the Chinese

Communist Party, applied Mao’s strategy on a global scale to explain how the

Communists could win the “world revolution”:

Taking the entire globe, if North America and Western Europe can be called “the cities of the world”, then Asia, Africa and Latin America constitute “the rural areas of the world”. Since World War II, the proletarian revolutionary movement has for various reasons been temporarily held back in the North American and West European capitalist countries, while the people’s revolutionary movement in Asia, Africa and Latin America has been growing vigorously. In a sense, the contemporary world revolution also presents a picture of the encirclement of cities by the rural areas. In the final analysis, the whole cause of world revolution hinges on the revolutionary struggle of the Asian, African and Latin American peoples who make up the overwhelming majority of the world’s population. The socialist countries should regard it as their internationalist duty to support the people’s revolutionary struggles in Asia, Africa and Latin America.103

At that time, Communist China was actively engaged in this “internationalist

duty,” providing training, weapons, money, and other support to guerrilla

movements in Indochina, Thailand, Indonesia, the Philippines, and as far away as

Madagascar. Those who dismiss the threat by noting that, a decade later, China

did not respond to our defeat by promoting revolutions around the globe,

conveniently ignore the tremendous changes that took place during that eventful

decade.104

102 Mao Tse-tung, Problems of War and Strategy, in SELECTED MILITARY WRITINGS OF MAO TSE-TUNG 270 (Peking: Foreign Languages Press, 1966). 103 LIN PIAO, LONG LIVE THE VICTORY OF PEOPLE’S WAR (Peking: Foreign Languages Press, 1965) pp. 48-49. 104 Countries like Thailand and Indonesia, which were ripe for the picking and virtual basket cases in 1965, a decade later were far more stronger and secure. Even more importantly, China had turned inward during the Great Proletarian Cultural Revolution (during which Lin Biao had died

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In Lin Biao’s view, the struggle that mattered the most in the quest for world

revolution was the one taking place in Vietnam.

Viet Nam is the most convincing current example of a victim of aggression defeating U.S. imperialism by a people’s war. The United States has made South Viet Nam a testing ground for the suppression of people’s war. . . . The more they escalate the war, the heavier will be their fall and the more disastrous their defeat. The people in other parts of the world will see still more clearly that U.S. imperialism can be defeated, and that what the Vietnamese people can do, they can do too. [Emphasis added.]105

Put simply, Chairman Mao had challenged Khrushchev’s cautious response to

American nuclear power, and “Vietnam” had been declared by all sides to be the

testing ground where the world would see whether the American “imperialists”

would be able to prevent Communist subversion and “liberation” by “people’s

war.” It thus was to take on a significance far more important than the

geostrategic value of the territory involved might otherwise suggest.

The Vietnamese Communists clearly took the Chinese side in the dispute. The

September 1963 issue of the VWP theoretical journal, Hoc Tap (“Studies”),

featured an editorial attacking Khrushchev’s repudiation of Lenin’s thesis that war

was inevitable:

To renounce revolution by violence so as to reduce the proletarian revolution and the dictatorship of the proletariat to empty words—this is the main feature characteristic of the reformists ranging from Kautsky to the modern revisionists. . . . There are those who are trying to support their argument for the

in a “helicopter crash”), and by 1975 Bejing was no longer in the business of promoting world revolution. Had an early American withdrawal from Vietnam proven Lin Biao’s strategy sound, there is little reason to assume Bejing would not have pursued it to its logical conclusion by increasing support to guerrilla movements in Asia, Africa, and Latin America – and the USSR itself might well have found it desirable to reconsider it more cxautious strategic plan. (Indeed, had the success of Mao’s strategy prevailed, a major cause of the Sino-Soviet rift might have been eliminated that conceivably could have led to greatly improved relations between the two Communist giants. 105 Id. at 57-58.

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“theory” of “peaceful transition” by citing the fact that certain nations have achieved independence by peaceful means. But this is utterly wrong, because these nations remain within the orbit of capitalism after independence has been achieved, and so it cannot be said that they have reached the “peaceful transition to socialism.” So far, there is not yet a single “precedent” of peaceful transition to socialism in the world working-class history of revolutionary struggle. . . . For all their destructive power, nuclear weapons cannot change the law of development of human society. . . . The revolutions of China, Viet-Nam and Cuba were all revolutions by violence and were all won after the presence of nuclear weapons. It is therefore utterly groundless to assert that the working class should not seize state power by violence following the existence of nuclear weapons.106

Three months later, Party First Secretary Le Duan told the ninth plenum of the

VWP Central Committee: “It is precisely the Chinese Communist Party, headed

by Comrade Mao Tse-tung, which has most brilliantly carried into effect the

teachings of the great Lenin.”107

In other words, in the Sino-Soviet struggle – a key dispute in which was

Khrushchev’s cautious view that Eisenhower’s threat of “massive retaliation”108

required a strategy of “peaceful coexistence” until the correlation of forces was

more favorable, versus the open advocacy of “armed struggle” through “people’s

wars” and “wars of national liberation” championed by Mao (and by Fidel Castro

and Ché Guevara in the Americas) – Hanoi was totally committed to the Chinese

position.109 And in this great struggle – the greatest challenge to America’s

doctrine of “Containment” of the 1960s – the Vietnam conflict was viewed as a 106 Quoted in TURNER, VIETNAMESE COMMUNISM 296-97. 107 Id. at 297-98. 108 A useful summary of this doctrine can be found in chapter five of JOHN LEWIS GADDIS, STRATEGIES OF CONTAINMENT: A CRITICAL APPRAISAL OF POSTWAR AMERICAN NATIONAL SECURITY POLICY (1982). 109 I am not asserting that Hanoi sided with Mao on all issues in the Sino-Soviet rift. I discuss this issue in some detail in chapter eleven of my 1975 volume (TURNER, VIETNAMESE COMMUNISM 290-304). Throughout this period, Hanoi repeatedly called for unity in the “monolithic international communist movement” and sought to bring the two giants together; but on the issue of “armed struggle” and promoting “wars of national liberation” around the globe, Hanoi was consistently on Beijing’s side.

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“test case” by everyone involved. That is why the war was so important.

Hanoi’s 1959 Decision to Use Military Force to “Liberate” South Vietnam

We could spend days discussing the many myths of the Vietnam war spread by

honest but misguided “peace” protesters during the Vietnam War (and often

initially generated by Hanoi’s very effective propaganda machinery). America

did not get involved to “restore French colonial rule” – indeed, after Ho Chi Minh

invited the French to return to Vietnam on March 6, 1946, the leaders of the

French military in Saigon cabled their superiors in Calcutta that the Americans

were a far greater impediment to their return than Ho’s Viet Minh. In fact, French

and Viet Minh forces conducted combined operations against genuine nationalist

groups who had refused to accept the return of the hated French colonialists.

These were rivals for leadership in the anti-French cause that Ho needed to

eliminate to ensure Communist control of the revolution, so he simply denounced

them as “enemies of the peace” and combined forces with France to destroy them.

Nor did America violate the 1954 Geneva agreements or conspire with Ngo Dinh

Diem to block “free elections” in 1956 that even President Eisenhower had

admitted Ho would have won. (I wrote President Eisenhower about this issue at

the time, and was assured that he believed he was being misquoted.)

Still another ludicrous myth was that there was no “aggression from the north,”

that North Vietnam was not behind the guerrilla campaign in the South and that

the “National Liberation Front” was an autonomous South Vietnamese resistance

group. (I still remember sitting on a couch in the back of the Senate chamber and

listening to Senator Ted Kennedy repeat this canard – presumably oblivious to the

long history of Marxist-Leninist parties establishing “united fronts” as a tactic.)

As an undergraduate in 1966, I had no difficulty documenting in my honor’s

thesis that Hanoi had made a decision in May 1959 to use military force to

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“liberate” South Vietnam. I elaborated on that decision in greater detail in my

1975 history of Vietnamese Communism. But it was not until after the war was

over that Hanoi came clean and published a number of official accounts of the

May 19, 1959, Lao Dong Party decision to open the Ho Chi Minh Trail and start

sending combat troops and vast amounts of supplies (largely from China and the

Soviet Union) south to “liberate” South Vietnam.

There will no doubt be those diehards from the old debates who will try to counter

that South and North Vietnams were really “one country” historically, and no one

intended the 1954 partition to be permanent. The point is at least arguably true,

just is it is true that no one publicly declared that the divisions of Korea and

Germany following World War II were intended to be permanent. But when

North Korea used military force to try to reunite the country under Communist

rule, the United Nations Security Council declared the act to be international

aggression and established a UN military command to fight a war against the

Pyongyang regime. And, throughout the Cold War, we had U.S. combat units

stationed in West Germany ready to go to war should an effort be made to reunite

Germany under Communist rule.

The “Imperial President” Myth and the Korean Precedent

My good friend Dr. Lou Fisher, who appeared before you on the April 10 panel, is

fond of asserting that the modern practice of “imperial presidents” taking the

nation to war against the will of Congress and the American people began with

President Truman’s decision in June 1950 to go to the aid of South Korea

following the June 25th military invasion from North Korea. Lou is a great guy

and generally an able scholar, and this perception is certainly the modern

conventional wisdom. But it is demonstrably wrong.

Ironically, Lou and I had exchanged a series of letters about whether Congress

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was a full partner in going to war in Vietnam prior to my last appearance before

this Committee. Unbeknownst to me, Lou was in the audience, and a few days

later I received a nice letter from him informing me that my rather extensive

testimony had convinced him that Congress was, in fact, a partner in Vietnam.

But he said there is still the problem of Korea, and he soon wrote an extensive

article in the American Journal of International Law explaining how Truman

breached the Constitution in 1950.

That was certainly what my professors had taught in college, and I was only six

years old at the time and was not closely following the Korean conflict – although

I was certainly aware of it, as my father, who had served as a flight surgeon in the

Army Air Corps in the European Theater during World War II, was recalled to

duty. But he was not assigned to Korea (we had a very enjoyable tour in Oslo

where he served as a medical adviser to NATO), and I had never bothered to

study the constitutional origins of that conflict.

However, Lou’s assertion that there was still an “imperial president” problem

because of Korea got me thinking, and I decided to spend several weeks going

through all of the congressional debates associated with the UN Charter and UN

Participation Act in 1945, and the Congressional Record debates and a wealth of

declassified State Department documents in the Foreign Relations of the United

States series. And as I demonstrated in a fifty-page article published a dozen

years ago in the Harvard Journal of Law & Public Policy,110 the record does not

in the slightest support the charge that Truman “ignored” or “bypassed” Congress.

Quite the contrary, he personally repeatedly consulted with the bipartisan

leadership of both houses and repeatedly told congressional leaders that he

wanted to come before a joint session of Congress to report on the war as soon as

Congress returned from its ten-day Fourth of July recess.

110 Robert F. Turner, Truman, Korea, and the Constitution: Debunking the “Imperial President” Myth, 19 HARV. J. L. & PUB. POL. 533, 577-79 (1996).

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To mention just a bit of the evidence I found, consider this excerpt from Senator

Tom Connally’s autobiography – keeping in mind that Connally was the

Chairman of the Senate Foreign Relations Committee and had been a key

negotiator of the UN Charter in 1945 – concerning Truman’s call to him on

Monday, June 26, 1945:

He [Truman] hadn’t as yet made up his mind what to do…. “Do you think I’ll have to ask Congress for a declaration of war if I decide to send American forces into Korea?” the President asked. “If a burglar breaks into your house,” I said, “you can shoot at him without going down to the police station and getting permission. You might run into a long debate by Congress, which would tie your hands completely. You have the right to do it as commander-in-chief and under the U.N. Charter.111

During the congressional recess only a single congressional leader remained in

Washington, Senate Majority Leader Scott Lucas (D-IL), who was also a long-

term member of the Foreign Relations Committee. Truman asked him to visit

Blair Houses (the White House was under renovation at the time), and on July 3,

1950, the two leaders met to discuss Korea. To set the stage a little, among the

first things out of Truman’s mouth when he returned to Washington from

Missouri after being informed of the North Korean invasion (he had already

instructed Secretary of State Acheson to report the invasion to the UN Security

Council before boarding a plane), were that he wanted the State Department to

draft a statute for Congress to consider if it became necessary to send ground

troops, and he wanted immediate consultation with both houses of Congress. (At

Acheson’s suggestion, he agreed to call Tom Connally personally on Monday

morning.)

Some of you may remember, or know by reputation, Ambassador Phillip Jessup –

a very distinguished American legal scholar who later served as a judge on the

International Court of Justice. By chance, then-Ambassador at Large Jessup was

tasked with keeping notes on the Truman-Lucas exchange. It began with 111 SENATOR TOM CONNALLY, MY NAME IS TOM CONNALLY 246 (1954).

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Secretary Acheson passing around copies of the (in modern parlance)

Authorization for the Use of Military Force (AUMF). Jessup then recorded:

“Senator Lucas said that he frankly questioned the desirability of this [AUMF]. He said that things were now going along well . . . . He said that the President had very properly done what he had to without consulting [sic] the Congress. He said the resolution was satisfactory and that it could pass. He suggested as an alternative [to going before a joint session of Congress] that the President might deliver this message as a fireside chat with the people of the country….” Senator Lucas said that most of the members of Congress were sick of the attitude taken by Senators Taft and Wherry. . . . Senator Lucas said that he felt he knew the reactions of Congress. He thought that only Senator Wherry had voiced the view that Congress should be consulted. Many members of Congress had suggested to him that the President should keep away from Congress and avoid debate. . . . He did not think that Congress was going to stir things up. The President said that it was necessary to be very careful that he would not appear to be trying to get around Congress and use extra-Constitutional powers . . . . The President said that it was up to Congress whether such a resolution should be introduced, that he would not suggest it.112

In other words, the record clearly establishes that President Truman not only did

not “ignore” Congress at the time of the Korean conflict – he repeatedly asked to

address a joint session of Congress and on his own initiative had the State

Department draft an AUMF for Congress to consider. But everywhere he turned,

congressional leaders assured him he had the authority to respond to North

Korean aggression both as Commander in Chief and pursuant to the UN Charter.

Authorizing War By Treaty

Although it is a bit of a digression, since witnesses in the April 10 hearing

112 MemCon by Ambassador at Large Phillip Jessup of 3 July 1950 Blair House Meeting (declassified from Top Secret), in VII FOREIGN RELATIONS OF THE UNITED STATES 1950—KOREA 286-91 (1976).

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confidently asserted that military force can not be authorized by a treaty,113 this

may be an appropriate time to address that claim. Twenty or twenty-five years

ago, I shared a platform with my good friend Professor Louis Henkin of Columbia

Law School, whose 1972 volume Foreign Affairs and the Constitution remains a

classic in the field. Perhaps it was before a congressional committee, or perhaps

at a scholarly conference – time has passed and I don’t remember the venue. But

Lou mentioned that some scholars had argued that war could not be authorized by

treaty, and after returning home I sent him a letter (that was before we had the

convenience of email) arguing the contrary and asking if that was really his

position. He assured me he had only noted that someone had made the assertion,

and that it was not his personal view.

To begin with, if one examines the list of legislative powers vested in Congress

by Article I, Section 8, of the Constitution, it is clear that many of them –

although expressly vested in Congress by the Constitution – are regularly also

accomplished by treaty (and have been since the earliest days of our Country in

some cases). Thus, Congress has the power to “regulate Commerce” with foreign

nations, yet treaties have addressed issues of trade and commerce from our

earliest days. Some of our earliest treaties dealt with the establishment of post

offices and post roads, and modern treaties deal with the international legal

implications of bankruptcies, intellectual property rights, the establishment of

legal tribunals, defining and punishing piracy and felonies committed on the high

seas, making rules for the regulation of military forces, etc. Yet these are all

powers expressly vested in Congress by Article I, Section 8, of our Constitution.

There is nothing textually in the Constitution to distinguish these powers from the

power to “declare War.”

Authorizing the Use of Force by the UN Charter – the Original Congressional Understanding

It is absolutely clear that when the Senate consented to the ratification of the UN 113 See the statement of Professor Glennon at 14.

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Charter in 1945, and Congress enacted the UN Participation Act (UNPA) to

implement some of its provisions, the overwhelming view – reflected in

unanimous reports of both this Committee and the Senate Foreign Relations

Committee – was that the UN Charter empowered the President to deploy

American armed forces into combat in cooperation with the Security Council.

Sadly, my friend Lou Fisher testified two weeks ago114 that this was not true

because President Truman had sent a telegram assuring Congress that he would

seek statutory authorization before doing so. But Lou is profoundly mistaken.

What Truman was talking about was getting congressional authorization to enter

into “Article 43” agreements with the Security Council by which American

combat units would be turned over to a UN military command to be immediately

available in the event of a future crisis. (The UNPA fulfilled that purpose, but the

argument for House involvement during the debates did not focus on the power of

Congress to “declare War,” but rather the role of the House in making

appropriations.115) Because the Cold War quickly left the Security Council

largely impotent until the collapse of the Soviet Union (Moscow routinely

exercised its veto to prevent effective Security Council action), the provisions of

Article 43 were essentially stillborn.

It may seem to some that I am being harsh on Lou, who is not here to defend

himself. So let me share with you a few excerpts from the 1945 floor debates and

committee reports and allow each of you to draw your own conclusions. For

example, consider this discussion between Senator J. William Fulbright – later a

key player both in getting America involved in war in Indochina and in later

opposing what he had done and blaming it on the Executive branch – and

isolationist Senator Burton Wheeler (R-Mont.), from the floor debates on

consenting to the ratification of the UN Charter:

114 Statement by Lou Fisher before the Subcommittee on International Organizations, Human Rights, and Oversight, House Committee on Foreign Affairs, April 10, 2008 at 4. 115 Turner, Truman, Korea, and the Constitution 543.

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Mr. Fulbright: As a practical matter, the Senator does not seriously believe, does he, that the right of Congress to make war will ever be very significant in modern warfare? Mr. Wheeler: Of course not. Not only is it not significant in modern times, but it never has been. Mr. Fulbright: I do not see why the Senator thinks it is necessary to argue that the war power must remain in Congress, when it has never been important.116

Here is an exchange between Senator Fulbright and Senator Scott Lucas, a

Democratic colleague on the Foreign Relations Committee who later became

Senate Majority Leader, discussing whether Congress should retain a veto over

presidential commitment of armed forces to UN peace operations:

Mr. Fulbright: Would not the Senator agree that if the Congress undertook to restrict the President in the exercise of that power which is placed within his discretion for the purpose of enforcing law and protecting our interests, it would be wrong to do so? Mr. Lucas: I agree with the Senator. Mr. Fulbright: There has been some talk to the effect that we could control and say to the President, “No, you cannot use these forces.” Mr. Lucas: I do not agree with that at all.117

Even more enlightening is this statement by Foreign Relations Committee

Chairman Tom Connally, who was by far the most respected member of either

chamber when it came to U.S. foreign relations, save perhaps for his Republican

counterpart Arthur Vandeburg of Michigan:

As to declaring war, that is not a question which is involved here at all. These forces are not exacted to make war. They are exacted as peace forces, to undertake to preserve peaceful nations against aggression and attack….I am convinced that the Presidential use of armed forces in order to participate in the enforcement action

116 91 CONG. REC. 11396 (1945). 117 Id. at 8032.

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under the Charter would in no sense constitute an infringement upon the traditional power of Congress to declare war.118

Chairman Connally’s view was reflected in the unanimous report of the

Committee on Foreign Relations recommending Senate consent to the ratification

of the UN Charter:

Preventative or enforcement action by these [US] forces upon the order of the Security Council would not be an act of war but would be international action for the preservation of the peace and for the purpose of preventing war. Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war. The committee feels that a reservation or other congressional action…would also violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress.119

This language was quoted with approval in the unanimous report of the House

Foreign Affairs Committee recommending passage of the UN Participation Act

later that same year, a report that also explained:

The basic decision of the Senate in advising and consenting to ratification of the Charter resulted in the undertaking by this country of various obligations which will actually carried out by and under the authority of the President as the Chief Executive, diplomatic, and military officer of the Government. Among such obligations is that of supplying armed forces to the Security Council concerning which provision is made in section 6. …[T]he ratification of the Charter resulted in the vesting in the executive branch of the power and obligation to fulfill the commitments assumed by the United States thereunder . . . .120

Let me pause here to explain the constitutional point being unanimously

embraced by your predecessors on this committee nearly sixty-three years ago.

Under the Constitution, the President is empowered and charged to “take Care

118 Id. at 10968. 119 Turner, Truman, Korea and the Constitution 551. 120 House Foreign Affairs Committee Rep’t No. 79-1383 (1945).

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that the Laws be faithfully executed . . . .”121 Under the Supremacy Clause, “all

Treaties made, or which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land . . . .”122 Thus, treaties are a part of the

“Laws” the President is obligated to faithfully execute.

Not everyone in the Senate was anxious to see the President empowered to order

U.S. military forces into combat based upon a decision by a group of foreigners

on the UN Security Council (although, in fairness, those “foreigners” could not

authorize any use of force over the objection of the American Ambassador).

Isolationist Republican Burton Wheeler was about to run (unsuccessfully) for

reelection in 1946, and public opinion polls showed overwhelming support (over

80%) from the American people for joining the new United Nations and giving it

teeth to keep the peace. Wheeler found it politically expedient to vote in favor of

consenting to ratification of the Charter, but when the UN Participation Act came

before the Senate, he tried to pull some of the Security Council’s teeth by an

Amendment requiring affirmative approval of the Congress before U.S. forces

could actually be sent into combat to enforce a Security Council decision. The

Wheeler Amendment, introduced on December 4, 1945 – the last day of Senate

debate on the UNPA – was very clear in its purpose:

[T]he President shall have no authority, to make available to the Security Council any armed forces to enable the Security Council to take action under article 42 of said charter, unless the Congress has by appropriate act or joint resolution authorized the President to make such forces available…in the specific case in which the Council proposed to take action.123

Given the modern view (ably captured by witnesses at your April 10 hearing), you

may be surprised to learn that this amendment was denounced even by isolationist

Robert Taft – who observed that the United States had already committed itself to

121 U.S. CONST., Art. II, Sec. 3. 122 Id. Art. VI. 123 Turner, Truman, Korea, and the Constitution 554.

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an obligation to assist in UN peace operations – and it was rejected by a margin of

greater than seven-to-one, receiving only nine affirmative votes.124

So the historical record clearly shows not only that Truman was not an “imperial

president” who ignored or tried to bypass Congress at the time of the Korea

conflict; but also that when the UN Charter was ratified it was the view of

overwhelming majorities in both houses of Congress that the President would not

need further legislative authorization to take part in international peace

enforcement operations authorized by the Security Council.

Some Thoughts on Media Culpability in Vietnam

Much of what I have told you this afternoon is totally inconsistent with what was

being taught in American colleges and universities and reported by the press from

Saigon during the war. Legislators and their constituents got much of their

information from the mass media, which focused heavily on negative stories

about the United States and its allies and – in all candor, as someone who was

frequently called upon by the American Embassy to brief journalists on the enemy

– knew almost nothing about North Vietnam or the Viet Cong. Were these

journalists stupid? Were they actually working for the enemy and hoping for a

Communist victory? While there were a few that I would honestly place in one or

both of those categories, for the most part that was not the explanation.

There were, I believe, several factors at play that contributed to press accounts

that were far from reflective of the realities of the war. It is normal for human

beings to pursue their own perceived self interest, and journalists in Vietnam

knew that if they wanted their stories to make page one and perhaps win a Pulitzer

– and to obtain the professional and monetary benefits that come from such

success – they needed to find “newsworthy” stories and stay away from puffing

the military or the government. I remember a conversation I had late one evening

124 Id. 555.

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in December 1968 in the Da Nang Press Center with a journalist who had written

a series of stories that I viewed as overly kind to our enemies and harsh on our

own forces. (My point was not that his stories were necessarily wrong as a matter

of fact, but that the impression given to his readers would be far from the reality

of what was happening in Vietnam.) That’s been nearly forty years, and I don’t

pretend to remember his response verbatim. But the essence I remember well:

Your problem, Bob, is that you don’t understand journalism. I don’t disagree with you that most American soldiers are behaving honorable and with courage over here, or that the Viet Cong regularly engage in terrorism. But the American people know that. Journalism is not about “dog bites man” stories, it is about “man bites dog” stories.

I would emphasize that this is not a verbatim transcript, but it is close. And this

makes sense if your goal is to move your stories closer to page one and to pursue

career advancement. The problem is that this approach soon persuaded readers

that men biting dogs was a common occurrence in Vietnam.

A more serious problem is that few American journalists in Vietnam were anxious

to spend extended time in the field with ground combat forces. That was

dangerous. In fairness, there were some noteworthy exceptions – such as Joe

Galloway, one of the true heroes portrayed in the Mel Gibson movie, We Were

Soldiers Once. But too many American reporters preferred hanging out in the

bars of the Caravel Hotel or the Continental Palace Hotel in Saigon, where they

were frequent targets of North Vietnamese and Viet Cong agents assigned to

“work” the American press. Fluent in English and very careful to appear both

anti-Communist and infuriated by the “corruption” of the South Vietnamese

government and the Americans (and there was genuine corruption enough to go

around), they carefully conveyed the message that – if we weren’t on the wrong

side – there was nothing worth fighting for in Vietnam.

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Certainly the most famous example was Pham Xuan An, who worked for Time

magazine, Reuters, and was considered a reliable and informed source by many

other American journalists. American-educated, sophisticated, and personally

charming, it was not until Morley Safer tried to track him down while visiting

Vietnam for 20/20 in 1989 that it became clear he had been an agent for Hanoi the

entire time. When he died in Ho Chi Minh City in September 2006, he held the

title “Hero of the People’s Armed Forces” and retired with the rank of major

general.125

As someone who spent a fair amount of time with the press in Vietnam over a

period of seven years, the best single piece I have seen on this problem was an

article written by the legendary British-American war correspondent, Robert

Elegant, writing in the London monthly Encounter in 1981.126 Unlike most

foreign correspondents, Bob Elegant was also a serious scholar, holding an MA in

Far Eastern Studies from Columbia, a diploma of proficiency in Chinese from

Yale, and reading, speaking, and writing as well Japanese, German, Italian, and

some Indonesian. At the time his article was published, he and the late Walter

Lippmann were the only journalists to have thrice won the Overseas Press Club’s

award for best interpretation of foreign news – and since then, Elegant has won

the award yet again.

“How to Lose a War” angered many journalists, but many of us who had studied

Vietnam for years and had frequent encounters with members of the Saigon press

corps quietly cheered. Elegant pulled no punches in his laundry list of media

125 Morley Saafer, Spying for Hanoi, N.Y. TIMES MAGAZINE, Mar. 11, 1990 at 34. See also, LARRY BERMAN, PERFECT SPY: THE INCREDIBLE DOUBLE LIFE OF PHAM XUAN AN TIME MAGAZINE REPORTER AND VIETNAMESE COMMUNIST AGENT (2006). The ultimate irony is that, even after An was exposed as a Communist agent, his American journalist friends accepted his assurances that he never tried to “spin” the information he gave them! It is if they assume that his status as an officer in the People’s Army of [North] Vietnam was coincidental to his work with the American press covering the war, akin to being a member of a church group or sporting team. Their failure to understand the Lao Dong Party’s attitude towards “political struggle” is truly remarkable. And An was hardly the only Communist agent assigned to influence the American media in Saigon. 126 Robert Elegant, How to Lose a War, ENCOUNTER (London), , August 1981 at 73-90, available on line at: at http://www.wellesley.edu/Polisci/wj/Vietnam/Readings/elegant.htm .

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abuse. He noted that some of the leading American magazines would ask him to

report from China, but when he suggested he write about the war in Vietnam they

explained that his views would not be welcomed by their editors.127 This excerpt

is typical of the piece:

Sgt. John Ash (brother of the world-famous tennis player) was a marine assigned to public relations duties. He delivered a biting indictment of the young wire-service correspondents and the “war freaks” who frequented Da Nang (which was a remote outpost to the media, though not to the military). They would, he recalled, rarely go into the field and never spend the night when they did: would deport themselves as if they had never heard a shot fired with intent to kill before that moment—to their own and the Marines’ peril; and then file stories that “bore little or no relation” to what he—and they—had seen. They didn’t want to know, Ash added, what was really happening in the First Corps Area . . . .128

The behavior of the American press in Vietnam is a good part of the explanation

for the phenomenon that Vietnam combat veterans supported the war by a strong

majority, and by a margin of more than two-to-one over Americans who relied

upon the media to understand what was going on in Vietnam.129 When you add to

the often incompetent press coverage of the war the contributions of anti-war

Vietnam veterans like now-Senator John Kerry (many of whom turned out to be

either total imposters or pseudo heroes130), perhaps it is not surprising that many

127 Id. 128 Id. 129 “Vietnam Yesterday and Today,” Time, April 30, 1990, p. 20. See also, James Webb, “The Media’s War on Vietnam Veterans,” Wall Street Journal, July 15, 1998; Barry Sussman & Kenneth E. John, “Poll Finds Veterans Are at Home Again,” Washington Post., Apr. 11, 1985, p. A-11, quoted in B. G. BURKETT & GLENNA WHITLEY, STOLEN VALOR: HOW THE VIETNAM GENERATION WAS ROBBED (1998). 130 A classic example of a total imposter was “Captain” Al Hubbard, a member of the Black Panthers who as Executive Director of the Vietnam Veterans Against the War sat beside John Kerry on Meet the Press on April 17, 1971. Although portraying himself as a former Air Force pilot who was seriously wounded while landing at Da Nang, Air Force records later disclosed that Sergeant Hubbard had been medically discharged following surgery for a soccer injury and had never set foot in Vietnam (not counting when the Communist Party of the United States later paid his way to Hanoi as a VVAW official). Members of the Committee may recall that most of the Swift Boat officers shown in the photograph initially used by Senator Kerry to launch his presidential campaign came out in opposition to his election, and only a very few formally supported him. Swift Boat officer John O’Neill wrote the book Unfit for Command in 2004, and many other veterans joined in to document discrepancies in Senator Kerry’s very brief “war

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legislators of good will and with the best of intentions thought it wise to abandon

America’s longstanding commitment to containing Communist aggression.

Whatever their motives, the human consequences of their actions were tragic.

The Tragic Irony – American Had the War Won by 1972

Yale University’s distinguished Professor John Lewis Gaddis was certainly

correct writing in Foreign Affairs in 2005 that “Historians now acknowledge that

American counterinsurgency operations in Vietnam were succeeding during the

final years of that conflict; the problem was that support for the war had long

since crumbled at home.”131 My late friend Bill Colby’s book, Lost Victory,

provides an excellent account of the situation in South Vietnam as the war turned

our way following the dramatic Communist military defeat during the 1968 Tet

Offensive (another example of the media getting things totally wrong132) and the

assumption of command of General Creighton Abrams; and other excellent

accounts include Lewis Sorley’s A Better War and Michael Lind’s A Necessary

War. For the situation in Hanoi at the end of 1972, the account of Admiral James

Stockdale is a classic. He gives this perspective from his viewpoint as a POW in

the Hanoi Hilton near the end of December 1972:

record.” For another statement by Vietnam Veterans in opposition to Senator Kerry’s candidacy – one which focuses not upon his misconduct in country but rather his conduct after returning to America – see Vietnam Veterans to Correct the Myths, “The Boston Manifesto,” a 186-page, single-spaced, manuscript including nearly 500 footnotes, many of them to North Vietnamese or Viet Cong sources, available on line at: http://www.buttondepress.com/BostonManifesto/Boston_Manifesto.pdf. There is a new book out this year, entitled To Set the Record Straight, which I am told also provides valuable information on this issue. 131 John Lewis Gaddis, Grand Strategy in the Second Term, FOREIGN AFFAIRS, Jan-Feb. 2005, available on line at: http://www.foreignaffairs.org/20050101faessay84101-p30/john-lewis-gaddis/grand-strategy-in-the-second-term.html. 132 The classic account of the Tet Offensive – which North Vietnamese Defense Minister General Vo Nguyen Giap admitted was a Communist military defeat, see How North Vietnam Won the War, WALL STREET JOURNAL, August 3, 1995, p. 8. – is Peter Braestrup’s Big Story: How the American Press and Television Reported and Interpreted the Crisis of Tet 1968 in Vietnam and Washington (2 vols. 1977).

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At dawn, the streets of Hanoi were absolutely silent. The usual patriotic music was missing. In prison interrogators and guards inquired about our needs solicitously. Unprecedented morning coffee was delivered. One look at the Vietnamese faces told the whole story. It telegraphed accommodation, hopelessness, remorse, fear. The shock was there; the enemy’s will was broken. The sad thing was that what we were seeing could have been done in any ten-day period in the previous seven years and saved most of the 57,000 dead Americans.133

I might add that there have now been several accounts from former North

Vietnamese134 and Viet Cong135

leaders who concede we had them on the ropes in

the final years, and their only hope was that the American “peace” movement

would pressure Congress into throwing in the towel before our military destroyed

them. That was Hanoi’s strategy from the beginning of the war.136 Former Viet

Cong “Provisional Revolutionary Government” Minister of Justice Truong Nhu

Tang has acknowledged: “None of us had any illusions about our ability to gain a

military decision against the immensely powerful American war machine,”

emphasizing that “the political front was primary.”137 Thanks to a gullible U.S.

Congress, the strategy ultimately worked.

Policy Considerations

If it sounds like I’m saying Congress has nothing to do with war, I am being

misunderstood. The Commander-in-Chief power is a conditional power,

requiring for its effective use a prior decision by Congress to “raise and support”

133 JIM & SYBIL STOCKDALE, IN LOVE AND WAR 432 (1984) (emphasis added). 134 See for example the interview with former North Vietnamese Army Col. Bui Tin, who accepted the surrender of South Vietnam on April 30, 1975, and later served as Editor of the Party daily, Nhan Dan, in Hanoi, in How North Vietnam Won the War, WALL STREET JOURNAL August 3, 1995 at 8. 135 See, e.g. TRUONG NHY TANG, A VIET CONG MEMOIR 58, 142-47. 136 See, e.g., NEW YORK TIMES, 20 October 1965 (“Communist hopes for victory [in Vietnam]…now turn more on American withdrawal through exhaustion or in response to the pressure of public opinion rather than on conventional military success.”); and Stanley Karnow,WASHINGTON POST, 22 December 1966 at 1 (“Viet Cong leaders still base their long-term strategy on the conviction that the United States lacks the ability and determination to wage a long-drawn-out war.”). 137 TRUONG NHU TANG, A VIET CONG MEMOIR 58.

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an army and “provide and maintain a Navy.” No money may be withdrawn from

the Treasury without appropriations, and without money no President can fight a

serious war for long.

I strongly agree with my good friend Ed Williamson, in his April 10 testimony,

that as a policy matter it is in the President’s interest to get Congress formally on

board in a number of settings involving the possible use of military force that in

my view do not even arguably require a formal declaration of war. While serving

as Acting Assistant Secretary of State for Legislative and Intergovernmental

Affairs, I often chastised other Executive Branch officials who would call me to

announce that the President was going to make an important policy announcement

the next day and I should “consult” with Congress. And without trying to conceal

my frustration, I would tell them that it was too late for me to “consult” with

Congress. I could notify or inform them, and had someone come to me a week or

two earlier, I might have actually been able to consult and perhaps learn some

important things that it would be useful for the President to know before

finalizing his decision.

So even though I don’t believe that the President has a constitutional duty to

“consult” with Congress or get formal approval for force short of war settings or

to use force after an attack on the United States, I think it is a wise and prudential

decision. Ironically, one of the consequences I witnessed time and again in the

1970s and 1980s was a fear by senior Executive Branch officials that if they did

try to work closely with Congress, that might be seen as an acknowledgement that

the War Powers Resolution was constitutional – so the statute actually

discouraged consultation at times.

The Consequences of Congressional Lawbreaking

Since the 1970s, Congress has enacted a number of flagrantly unconstitutional

statutes – including efforts to usurp well-established Executive constitutional

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powers like the War Powers Resolution and FISA. These, in turn, have had

serous and demonstrably adverse consequences for the safety of our forces and

the security of our Nation.

The September 1983 debate over continuing the deployment of American

peacekeepers as part of a multi-national force in Lebanon is a good example.

This was not even arguably a situation where the President was interfering with

the power of Congress “to declare War.” Every country and military force in the

region had approved the deployment. But congressional Democrats sought to use

the situation for partisan gain (the conclusion of the Washington Post at the time),

and even after the mission was authorized for 18 months, congressional leaders

announced publicly that Congress could reconsider the issue if there were further

casualties. By announcing that to the world, Congress virtually placed a bounty

on the lives of our Marines – telling our radical Islamist enemies that if they

wanted to remove the Americans from Beirut, all they had to do was kill some

Marines. Indeed, we intercepted a message between two of the Moslem militia

groups that said “If we kill 15 Marines, the rest will leave.”

I believe Congress bears a great deal of responsibility for the October 23, 1983,

terrorist bombing of the BLT headquarter in Beirut that claimed the lives of 241

sleeping Marines, soldiers, and sailors. And in the process, Congress signaled

Osama bin Laden that America lacked will and could not accept casualties.

Indeed, in 1998, bin Laden expressly stated to an ABC News reporter in

Afghanistan that the American pullout from Beirut after the bombing showed him

that we could not take casualties – and presumably that was a factor in the 9/11

attacks.

General Hayden had stated publicly that had FISA not prevented the National

Security Agency from conducting electronic surveillance of al Qaeda operatives

in this country in 2001, he believes that NSA would have identified at least some

of the 9/11 terrorists as al Qaeda operatives prior to the attacks. And we know

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that FISA prevented the FBI from seeking a warrant to examine the contents of

Zachrias Moussaoui’s laptop computer prior to 9/11. Once again, without

intending to, Congress made the 9/11 attacks easier by crippling our Intelligence

Community.

I’m not going to go into a detailed discussion of the FISA dispute, as my

testimony on that issue is readily available.138 But I would note that every court

of appeals to decide the issue has held that there is a Fourth Amendment

exception for foreign intelligence collection, and the appeals court established by

FISA has unanimously declared that FISA could not take away the President’s

independent power in this area. It has been understood since at least 1788 – when

John Jay explained in Federalist No. 64 that the Constitution had left the President

“able to manage the business of intelligence as prudence might suggest”—that

Congress had no proper role in the intelligence area. But after Vietnam, Congress

tried to seize control of intelligence and did serious harm to our Intelligence

Community.

If you want another example of modern congressional lawbreaking, take note of

the fact that since the Supreme Court in 1983 declared “legislative vetoes” to be

unconstitutional, rather than searching for and repealing existing laws with these

unconstitutional features, Congress has instead enacted more than 500 new

legislative vetoes.

Congress has very important powers that it may lawfully exercise – such as

refusing to raise new troops or to appropriate new money – to effectively force the

President to abandon (or lose) any war the United States becomes involved it. If

it elects to pursue that approach, Members should understand that they will be

morally responsible (and politically accountable) for the consequences.

138 See http://www.virginia.edu/cnsl/pdf/Turner-testimony.pdf.

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What Congress may not do, is to interfere with the actual command of forces or

the conduct of operations. A central theme of the debates on our Constitution

involved the need to separate the purse and the sword in government. When

Congress, which has the purse, attempts to grab control of the sword as well, we

should be mindful of James Madison’s observation in Federalist No. 47 that the

concentration of power in a single hand is the definition of tyranny.

Let me close with a couple of additional comments on the testimony you heard

two weeks ago.

Since President Ford was kind enough to write the forword to my 1991 book on

the War Powers Resolution, and he is no longer around to defend or explain

himself, I cannot let Professor Glennon’s suggestion on page 2 of his prepared

statement that President Ford may have decided the War Powers Resolution was

unconstitutional after leaving office go unchallenged. Professor Glennon

reasoned: “As for President Ford, although he filed the required reports following

the Mayaguez incident and during the evacuations of Phnom Pen [sic] and

Saigon, the President apparently has come to doubtg the Resolution’s validity

after he left office.” With all due respect, I would suggest that Professor Glennon

take a look at those reports. Rather than reporting “pursuant to” the War Powers

Resolution, President Ford began the common practice of reporting “consistent

with” the War Powers Resolution and because of the President’s desire to keep

Congress informed on the matter. (Indeed, I would add that concern about

appearing to accept the validity of the War Powers Resolution has on occasion

discouraged “consultations” about potential crisis situations where the instincts

within the Executive Branch were otherwise disposed to trying to work closely

with Congress.)

I would also take issue with Professor Glennon’s suggestion that the President is

exceeding his authority under the 2002 Authorization for the Use of Force

(AUMF) in Iraq (see page 12 of his prepared statement). The AUMF authorized

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the President to use force to “defend the national security of the United States

against the continuing threat posed by Iraq.” Obviously, abandoning our

commitment in a setting where Iraq remains unstable and could be taken over by

pro-Iranian or other Islamic radicals would be major threat to U.S. security –

particularly if Iraq again became a safe-haven for international terrorists.

Further, as Professor Glennon noted, the 2002 AUMF also empowered the

President to “enforce all relevant United Nations Security Council resolutions

regarding Iraq.”139 That would certainly include the authorization to enforce

Resolution 678, which the Security Council declared remained in force as of 2003

and which empowered the United States and its allies not only to eject Iraqi forces

from Kuwait in 1991, but also “to restore international peace and security in the

area.”140 That is a very broad mandate, and I would submit that a core objective

of our current Iraqi policy is to do just that.

Mr. Chairman, that concludes my prepared statement.

139 Glennon statement at 14. 140 This resolution is reprinted at http://www.fas.org/news/un/iraq/sres/sres0678.htm.