Because at the present time the President has no authority from Congress in any situation. In the Dominican Republic first level situation of rescuing American citizens abroad, he has no authority now from this Congress.

You are, in a sense, giving him something he does not now have, the authorization of this Congress.

LEGAL BASIS FOR QUARANTINE IN CUBAN MISSILE CRISIS

Now, with respect to the problem that Mr. Ball properly pointed out, and that is the case of the Cuban missile crisis which is in a sense a kind of paradigm case of the alleged need for Executive flexibility. In that situation I would say two things. No. 1, do not forget that the legal underpinnings for the President's quarantine action were two resolutions by the Council of the OAS.

Now, this is very clear, and it was precisely recited in the President's announcement. That was the legal basis on which he was instituting the quarantine.

I have always felt a little uncomfortable with the notion that the President had the time to go to the OAS for two resolutions and not time to come to the Congress for any.

REDRAFTING OF PROPOSED BILLS SUGGESTED

The second point is, it seems to me, that the question is best answered by some redrafting of the proposed bills before you. As I set forth in my prepared testimony, I would suggest that the provisions with respect to preauthorization, if you will, could be slightly changed and amended, I think, somewhat along the lines that Senator Javits and Professor Bickel discussed yesterday. That is, to reword the crucial provisions with respect to preauthorization to allow him, and here I quote my own language, which is essentially a combination of some of the language before the committee, "to repel or forestall an actual or imminent attack on the United States or the Armed Forces of the United States."

Now that, together with the power to protect the lives of the American citizens abroad, does incur risks because of our inability to foresee all possibilities. But I think such language still necessarily clothes the President with new authority which he does not now have and hence excuse me, Senator, go ahead.

DISTINCTION BETWEEN FUTURE AND IMMINENT ATTACK

Senator SPONG. But you are distinguishing imminent attack from future attack.

Mr. ROGERS. Yes.

Senator SPONG. Now you know the word "future" is used in the Stennis and Bentsen legislation.

Mr. ROGERS. Future nuclear, I think.

Senator SPONG. Future attack. He can act to repel what he believes to be future. I think there is a distinction here. Imminent, I look at as something much more likely to occur.

Mr. ROGERS. Oh, yes, absolutely, and as I say in my testimony if there is any question about that it ought to be clear that what the

Congress is saying the President can do is respond to an attack as to which the only question is not whether but when.

PROVISION FOR CONGRESSIONAL ACTION WITHIN 30 DAYS

Senator JAVITS. Mr. Rogers, I agree with you, you know we may have some ideas about language but just as I agree with Professor Bickel I am working on some things and we will all have a chance to think about it, in an effort to meet that contingency. Could you tell us now or at your convenience, this concept of illegality after 30 days without congressional action. That it seems to me is the essential of what we are doing.

We can fill in the details. Would you agree with that or do you see some other aspect of this problem which represents the key, the fulcrum of a solution?

Mr. ROGERS. You know, I think that is one of two essential aspects of the legislation, Senator. The first, it seems to me, is giving the President congressional authority he does not now have to act in emergencies, and the second thing is the provision that Congress should act within 30 days with respect to emergency actions.

Now, I think there are two things to be said about that. No. 1, of course, Congress always has the authority in new situations to do what it did in the Formosan Straits case, the Lebanon case, the Cuban missile crisis, whatever. You can always enact additional authority to the President when you anticipate new crisis situations.

The second thing, however, it seems to me, is a deficiency if you will allow me to say so, Senator Javits, which exists in your bill and bothers me in the other legislation and I think may be cured in the Eagleton resolution. Let me see if I can make this point, it is very simple.

That is, the legislation that you introduced provides that Congress must decide the issue within 30 days. This may have certain parliamentary problems to it which I don't purport to be expert on but it does seem to me quite essential that if the Congress is going to engage itself fully in the cooperative exercise of the warmaking powers under the Constitution, it cannot keep open for itself the capacity to pocket veto an initiative by the President.

Senator JAVITS. Mr. Rogers, if you would allow me, may I observe that I have provided for that specifically, and that both Eagleton and Stennis bills do me the honor of picking it up practically haec verba. In other words, we are very much. aware of that problem, and, we believe, solve it using the analogy which we have in the reorganization statute and, as a matter of fact, even more sharply limiting the time factors which are involved, so much so that there has been certain question about it.

Senator Sparkman, for example, said yesterday he thought it was too summary. Any suggestion that you have on that score would be more than welcome. I think it is significant that in essence the other bills have picked up the procedures of my own bill.

Mr. ROGERS. Well, I perhaps did not read it with the knowledge of this body's practices that I should have. I am gratified to know, Senator, that, if I understood you correctly, your bill does foreclose the possibility of deauthorizing the President by inaction.

Senator JAVITS. I think it does, Mr. Rogers. Although the Congress could, of course, decline to extend the President's authority.

Mr. ROGERS. Good.

Senator JAVITS. But again nobody is more thirsty for knowledge, suggestions. If you find some hole in it please tell us, you will be doing us a great service.

Mr. ROGERS. I should look at it again with that in mind, Senator Javits.

DISTINCTIONS AMONG WAR POWERS RESOLUTIONS AND BILLS

Senator SPONG. Your statement in main alludes to some distinction between the Eagleton resolution and the Javits bill.

Mr. ROGERS. Yes; I also mentioned, for example, my view about the treaty question which has been discussed at length before the committee. It is very simple and is that I don't think the language of the various mutual security treaties in any form constitute domestic internal authorization by this Congress to the President to take what action this Nation needs to take to execute its commitments.

I think that problem is easily solved by some amendment to the legislation before the committee.

I also might note my view that I think on balance the Stennis definition of hostilities covered by this legislation is perhaps the most desirable of the variations before the group.

I also point out that I think there may be some merit to considering as a companion piece to whatever Senate legislation you propose, House Joint Resolution 1, which, as you know, would require constant reporting of all new deployments of military forces abroad, and major changes in force levels. I think that is a nice companion piece. It does not require congressional approval of those kind of things but it fits rather neatly, it seems to me, with the various other bills before you.

IMPLICATIONS OF NEW OBLIGATIONS AND BURDENS ON CONGRESS

Finally, I would like to close, if you would allow me, Mr. Chairman, upon one precautionary note. It seems to me that the legislation now before the committee does look forward to a very much more solemn, serious, and active role for the Congress in the making of those decisions which approach toward war. I regard this as very good but I also regard it as essential that you understand, and that it be made clear, that this will impose very new obligations and burdens on the Congress, the House, and the Senate, and in my judgment, and here perhaps I come closer to some of the other notions that have been put before the committee, the Congress is not now equipped to handle these burdens. I think vour procedures are inadequate. I think your staffing is inadequate, I think you do not have the capacity to receive, digest, and analyze the kind of information that will be brought to you pursuant to this sort of legislation.

I think it is profoundly desirable. But I would urge if you really are going to take up the foreign affairs responsibility, which I think the Constitution mandates for the Congress, you cannot rest with the legislation before you now.

(The statement follows:)

TESTIMONY OF WILLIAM D. ROGERS

Mr. Chairman, I am honored to appear before the Committee again.

I shall address myself for the most part to the specifics of the bills before the Committee.

THE NEED FOR LEGISLATION

First, however, I would like to add my voice to the others urging this Committee to act.

What are proposed are a variety of measures-some better than others—the purpose of all of which is to regulate the exercise of the War Powers. These are rules of practice. No redistribution of power is contemplated. You are not rewriting the Constitution. These proposals seek merely to say how Congress' constitutional responsibilities shall be engaged and discharged-its supreme responsibility to declare war, and its less extraordinary powers to tax (to raise, support, provide, and maintain armies and navies and to govern and regulate the armed forces of the United States. The Necessary and Proper Clause is ample authority for this.

It is wrong as a matter of constitutional law, and a misreading of practical affairs, to think of Congress' area of responsibility and the Commander-in-Chief mandate of the President as mutually exclusive or antagonistic. They are not. There is not a certain point where the one stops and the other begins. Properly conceived, the constitutional War Powers-taken with other powers bearing on the conduct of our external relations-are overlapping powers. They must be exercised in a coordinated fashion. These proposals would assure that in the future that be done.

Witness after witness has reminded this Committee (and your colleagues in the House) of the imperative of engaging the Congress on the question of war. I think the best summary of the point they made was something Corwin said years ago:

"It was clearly the original understanding of the Constitution that under it all measures of hostility toward another government not justifiable immediately as acts of self-defense, must have the sanction of Congress." (Corwin, The Constitution, p. 60 n. 100 (7th Ed. 1941).)

Yet, so far as I can tell, this is the first time Congress has attempted to lay down general regulations under the Necessary and Proper Clause by which the President and the Congress are to cooperate to bring about that "sanction". The time for this is now ripe.

Furthermore, I should think you might even find some encouragement to act from the Administration. I realize that the Secretary did not exactly applaud these bills when he testified. But I note that he also turned his back on the Katzenbach view that Congressional declarations of war are outmoded: I take this as a disavowal, at least, of the doctrine of inherent presidential power first put forward in connection with Korea and the dispatch of U.S. troops to NATO which held sway until a few years ago. Now the tide is rapidly receding from this high-water mark of asserted presidential authority. Secretary Rogers favors "balanced executive-legislative participation in decisions regarding the use of military force." (64 Dept. State Bull. 727), and a "shared responsibility for the exercise of the war powers" (Id. at 732). This, it seems to me, is just what the proposals before you establish.

The Secretary merely counselled against legislation now. Vietnam tempers should cool a bit.

That was two months ago. Since then Mr. Kissinger has met with Mr. Chou. The President is going to Peking within the year.

If Vietnam tempers have improved enough to permit a rational discussion between the White House and the Forbidden City, can it be that a sensible dialogue on the War Powers is still not possible along Pennsylvania Avenue? This is a good time to act, in my view.

PRESIDENTIAL FLEXIBILITY

What of the major criticism leveled against the legislation. It is said-by Secretary Rogers, Professor Moore and others-that to lay down a catalog of cases in which the President may act and then to declare that he may not do so in other cases, limits his "flexibility".

58-809 - 72 - 42

On first reading, this argument has its appeal, particularly to the law-trained mind steeped in the ad hoc tradition of the common law. But I do find it persuasive.

In the first place, it proves too much. Congress can always stop a President by cutting off the funds (though this is a very inefficient way to manage foreign affairs). The purpose of this legislation is to make Congress face up to its responsibilities affirmatively and at the outset.

Furthermore, internal constraints aside, the nation cannot make war at will anyway. It is checked by international law. The United States has solemnly renounced the use of force against the territory of any other state (UN Charter, Article 2 (4)), saying only "the inherent right of individual or collective selfdefense." The UN Charter is analogous to the proposals before the Committee. These proposals also say that in some cases the President may act-but he must then place the question before the Congress.

Furthermore, even when the President does act he often needs the concurrenceessentially, the authorization-of other entities. In the Cuban Missile Crisis, for example, often cited as the paradigm case for executive dispatch, the quarantine had to await Secretary Rusk's advocacy of not one but two consecutive resolutions before the OAS Council on October 23, 1962. If we paused long enough for OAS Council action in that extraordinary instance-and if we could abide similar OAS action in the Dominican case-it hardly seems too much to require the sanction of Congress as well.

But it is also said that the President really should have the utmost freedom and scope if he is effectively to manipulate force and the threat of force in conducting world affairs in this age. War is only an extension of policy, so the analysis goes. The President must have the same option to resort to violence as he does to employ the lesser instruments of diplomacy, trade and propaganda. The possibility that he may do so and may even do so irrationally-is sure to constitute a factor restraining other nations.

I find this the least appealing of the arguments in favor of flexibility, and the one which comes closest to earlier suggestions of "inherent" Presidential power. The answers to it are several. In the first place, Congress can assemble and act more quickly now than in earlier times. Secondly, law and good sense counsel that, though the President must manage the everyday affairs of our diplomacy, the closer that diplomacy brings us to a national commitment to violence, the more intimately the Congress must be involved, since the more its other responsibilities will then be engaged and the greater the likelihood of events which would vastly ncrease the costs and burdens throughout society. Modern war is so utterly ominous to the nation that it cannot be left to the President and the President's party alone.

Finally, the foreign offices of the world are scarcely unaware of the debate in this country over the real limits of the President's power. So that now, a procedure for insuring congressional participation does not reduce the President's credibility. It enhances it. This legislation would not inhibit, it would strengthen US foreign policy in the post-Vietnam era. Congressional endorsements on Presidential due bills have been used before.' After Vietnam, they will be doubly essential.

So it seems to me that the procedures proposed in the bills before you are much in order.

Let me now turn to those bills.

THE DEFINITION OF "HOSTILITIES"

My analysis has three parts:

(1) What actions are covered by the bills;

(2) What actions covered by the bill may the President take without congressional sanction; and

(3) What of the procedures for engaging the Congress?

As to the first, the Eagleton and Stennis Bills contain definitions of hostilities, the Javits and Taft Bills do not.

I do not think that the omission results in an ambiguity; even without a definition, the Javits Bill would be pretty well understood to reach conventional

1 And a state invoking the right of self-defense under Article 51, must report "immediately" to the Security Council and the Security Council may then exercise its own authority under the Charter.

The Formosan Straits Resolution, of course, is the nearest and best example. There is ample room for such pre-arrangements under the Eagleton/Stennis bills, at least.