Mr. Nix. Introduce the others at this time accompanying you. Mr. HUMMEL. I am Arthur Hummel, Jr., Acting Assistant Secretary of the East Asian Bureau in the Department of State. Mr. DOOLIN. Dennis J. Doolin, Deputy Assistant Secretary of Defense, East Asia and Pacific Affairs. Mr. BROWER. Mr. Chairman, I am Charles N. Brower. I am acting legal adviser of the Department of State. Mr. MILLER. Mr. Chairman, I am Prof. Arthur S. Miller of the George Washington University Law Center. Mr. NOOTER. Robert N. Nooter, Assistant Administrator for AID. Mr. Nix. Thank you. Mr. Hummel. Mr. HUMMEL. As I was saying, Mr. Chairman, you have introduced a large number of topics, a few of which I would like to address at this point and perhaps other witnesses would like to address others. You mentioned initially, sir, that press briefings by the American Embassy of American newspapermen in Phnom Penh have been suspended. This is not the case. The regular weekly scheduled briefings that were an unusual factor of the Embassy's activities because they very seldom take place in other missions, have in fact been suspended, but newspapermen are regularly being received in the American Embassy on an individual basis. There has not been a cutoff in the normal and legitimate contacts between American and other newspapermen on the one hand and Embassy officials on the other. You mentioned, sir, that the North Vietnamese are reported not to be involved in the attacks in the Phnom Penh area. This, sir, is not accurate. The recent rocketing of Pochentong Airfield, the commercial and military airport at Phnom Penh, was conducted by a North Vietnamese Rocket Unit and not so incidentally resulted in a large number of civilian casualties recently. There are other North Vietnam units who man the artillery as well as the rocket units, who are cadre in the Khmer insurgent groups, and who man the logistics apparatus that stretches all the way through Cambodia and to Vietnam without which the insurgents could not operate. You mentioned, sir, that Cambodia has proclaimed its neutrality. You mentioned this in the context of the SEATO agreement in which Cambodia has been listed as a protocol state. You are quite correct in saying that. The previous Sihanouk Government of Cambodia announced that it did not wish to have Cambodia considered under any SEATO umbrella and Lon Nol's present government, the Khmer Republic, also has made this plain as well. What the Cambodians want is neutrality and more specifically a return to the terms of the 1954 Geneva accords that relate to all of Vietnam, and it is in this context that I would like to wind up my remarks. What we wish, what the United States wishes, what the American objective is in Cambodia is precisely to see the neutrality of Cambodia preserved, the neutrality that you mentioned and the neutrality that all Khmer Governments in recent years have sought for, hopefully based on the 1954 accords. To withhold American assistance in terms of money, in terms of military support which is thoroughly consonant with the terms of the Vietnam agreement-to withhold this support would not of course result in the neutrality that we all seek for Cambodia and in fact would result in just the reverse. Our objectives are limited. We have no commitments to Cambodia, secret or otherwise. We are attempting to support the Cambodian Government in its own legitimate aspirations and the legal rationale therefor has been given a number of times, most recently by the Secretary of State, for the American activities. I cannot myself speak to the legal rationale, another of your witnesses can; but I would stress, sir, that our objectives are limited, that we have no intention of introducing ground forces into Cambodia. We will not introduce ground forces into Cambodia; we have none there now. There is a ceiling, legislatively applied, of 200 persons, American officials who may be in Cambodia at any one time, and that ceiling is scrupulously observed. There are other legislative restrictions that are also scrupulously observed against having American advisers for Cambodian military units. In summary, sir, the actions we are taking we believe are thoroughly justified in law and in terms of foreign policy objectives and are directed toward a very limited goal and do not represent in any way a desire to widen the scope of the war but on the contrary are directed toward the achievement of a viable cease-fire, of a viable peace throughout Indochina, the achievement of which could not be accomplished if Cambodia were allowed to fall into North Vietnamese hands as a result of American inaction. Mr. Nix. You say that our objectives are limited. You will concede, I suppose, that we are spending $12 million per day in these operations, will you not? Mr. HUMMEL. If I may, sir, I would like to ask Mr. Doolin of the Defense Department to address that question. STATEMENT OF DENNIS J. DOOLIN, DEPUTY ASSISTANT SECRETARY OF DEFENSE, EAST ASIAN AND PACIFIC AFFAIRS Mr. DOOLIN. Mr. Chairman, I have not divided it out on the daily basis but the cost of our bombing effort in Cambodia during the period January 27 through April 30, of this year is $160 million. Mr. Nix. The next question I would put to you, Mr. Hummel, is by what authority, constitutional or otherwise, are we taking the action that we are engaged in? Mr. HUMMEL. If I may, Mr. Chairman, the acting legal adviser of the Department of State has addressed this question before other forums, and is here today, I believe, for this purpose. STATEMENT OF CHARLES BROWER, ACTING LEGAL ADVISER, DEPARTMENT OF STATE Mr. BROWER. Would you like me to address myself to that point, Mr. Chairman? Mr. Nix. I would be delighted if you would. Mr. BROWER. Mr. Chairman, as we are all aware, there has been much speculation in the press, and much discussion in Congress, with respect to the constitutional authority of the President of the United States to authorize bombing and other air strikes in and over the territory of Cambodia. The definitive statement on this point by the administration was given by Secretary of State Rogers on April 30 as part of his testimony before the Senate Committee on Foreign Relations, and I would suggest that for the sake of completeness the record of these hearings include that memorandum. If you should like, Mr. Chairman, I have a copy of the memorandum available for that purpose. Mr. Nix. Without objection the article referred to may be made a part of the record at this point in the record. [The material referred to follows:] PRESIDENTIAL AUTHORITY TO CONTINUE U.S. AIR COMBAT OPERATIONS IN CAMBODIA The purpose of this memorandum is to discuss the President's legal authority to continue United States air combat operations in Cambodia since the conclusion of the Agreement on Ending the War and Restoring Peace in Vietnam on January 27, 1973 and the completion on March 28, 1973 of the withdrawal of United States armed forces from Vietnam and the return of American citizens held prisoner in Indochina. The memorandum also discusses the background of the Agreement of January 27 and the purposes of various United States actions in order to clarify the legal issues. For many years the United States has pursued a combination of diplomatie and military efforts to bring about a just peace in Vietnam. These efforts were successful in strengthening the self-defense capabilities of the armed forces of the Republic of Vietnam and in bringing about serious negotiations whch culminated in the Agreement on Ending the War and Restoring Peace in Vietnam, signed at Paris on January 27, 1973.1 This Agreement provided for a cease-fire in Vietnam, the return of prisoners, and the withdrawal of United States and allied armed forces from South Vietnam within sixty days. The Agreement (in Article 20) also required the withdrawal of all foreign armed forces from Laos and Cambodia and obligated the parties to refrain from using the territory of Cambodia and Laos to encroach on the sovereignty and security of other countries, to respect the neutrality of Cambodia and Laos, and to avoid any interference in the internal affairs of those two countries. This Article is of central importance as it has long been apparent that the conflicts in Laos and Cambodia 1 LXVIII, Bulletin, Department of State, No. 1755, Feb. 12, 1973, p. 169. 2(a) The parties participating in the Paris Conference on Vietnam shall strictly respect the 1954 Geneva Agreements on Cambodia and the 1962 Geneva Agreements on Laos, which recognized the Cambodian and the Lao people's fundamental, national rights, i.e., the independence, sovereignty, unity, and territorial integrity of these countries. The parties shall respect the neutrality of Cambodia and Laos. "The parties participating in the Paris Conference on Vietnam undertake to refrain from using the territory of Cambodia and the territory of Laos to encroach on the sovereignty and security of one another and of other countries. (b) Foreign countries shall put an end to all military activities in Cambodia and Laos, totally withdraw from and refrain from reintroducing into these two countries troops, military advisers and military personnel, armaments, munitions and war material. "(c) The internal affairs of Cambodia and Laos shall be settled by the people of each of these countries without foreign interference. "(d) The problems existing between the Indochinese countries shall be settled by the Indochinese parties on the basis of respect for each other's independence, sovereignty, and territorial integrity, and non-interference in each other's internal affairs." are closely related to the conflict in Vietnam and, in fact, are so inter-related as to be considered parts of a single conflict. At the time the Vietnam Agreement was concluded, the United States made clear to the North Vietnamese that the armed forces of the Khmer Government would suspend all offensive operations and that the United States aircraft supporting them would do likewise. We stated that, if the other side reciprocated, a de facto cease-fire would thereby be brought into force in Cambodia. However, we also stated that, if the communist forces carried out attacks, government forces and United States air forces would have to take necessary counter measures and that, in that event, we would continue to carry out air strikes in Cambodia as necessary until such time as a cease-fire could be brought into effect. These statements were based on our conviction that it was essential for Hanoi to understand that continuance of the hostilities in Cambodia and Laos would not be in its interest or in our interest and that compliance with Article 20 of the Agreement would have to be reciprocal. It has recently been suggested that the withdrawal of all U.S. armed forces from South Vietnam and the return of all U.S. prisoners has created a fundamentally new situation in which new authority inust be sought by the President from the Congress to carry out air strikes in Cambodia. The issue more accurately stated is whether the constitutional authority of the President to continue doing in Cambodia what the United States has lawfully been doing there expires with the withdrawal of U.S. armed forces from Vietnam and the return of American prisoners despite the fact that a cease-fire has not been achieved in Cambodia and North Vietnamese troops remain in Cambodia contrary to clear provisions of the Agreement. In other words, the issue is not whether the President may do something new, but rather whether what he has been doing must automatically stop, without regard to the consequences even though the Agreement is not being implemented by the other side. The purposes of the United States in Southeast Asia have always included seeking a settlement to the Vietnamese war that would permit the people of South Vietnam to exercise their right to self-determination. The President has made this clear on many occasions. For example, on May 8, 1972, when he made the proposals that formed the basis for the ultimately successful negotiations with North Vietnam, he said there were three purposes to our military actions against Vietnam: first, to prevent the forceful imposition of a communist government in South Vietnam; second, to protect our remaining forces in South Vietnam; and third, to obtain the release of our prisoners. The joint communique issued by the President and Mr. Brezhnev in Moscow on May 29, 1972 in which the view of the United States was expressed said that negotiations on the basis of the President's May 8 proposals would be the quickest and most effective way to obtain the objectives of bringing the military conflict to an end as soon as possible and ensuring that the political future of South Vietnam should be left for the South Vietnamese people to decide for themselves, free from outside interference. 3 The recent opinion of the United States Court of Appeals for the District of Columbia Circuit in Mitchell v. Laird makes it clear that the President has the constitutional power to pursue all of these purposes. In the words of Judge Wyzanski the President properly acted "with a profound concern for the durable interests of the nation-its defense, its honor, its morality." The Agreement signed on January 27, 1973 represented a settlement consistent with these objectives. An important element in that Agreement is Article 20 which recognizes the underlying connections among the hostilities in all the countries of Indochina and required the cessation of foreign armed intervention in Laos and Cambodia. The importance of this article cannot be overestimated, because the continuation of hostilities in Laos and Cambodia and the presence there of North Vietnamese troops threatens the right of self-determination of the South Vietnamese people, which is guaranteed by the Agreement. The United States is gratified that a cease-fire agreement has been reached in Laos. It must be respected by all the parties and result in the prompt withdrawal of foreign forces. In Cambodia it has not yet been possible to bring about a ceasefire, and North Vietnamese forces have not withdrawn from that country. Under present circumstances, United States air support and material assistance are needed to support the armed forces of the Khmer Republic and thereby to render more likely the early conclusion of a cease-fire and implementation of Article 20 3 Bulletin, Department of State, May 29, 1972, p. 747. of the Agreement. Thus, U.S. air strikes in Cambodia do not represent a commitment by the United States to the defense of Cambodia as such but instead represent a meaningful interim action to bring about compliance with this critical provision in the Vietnam Agreement. To stop these air strikes automatically at a fixed date would be as self-defeating as it would have been for the United States to withdraw its armed forces prematurely from South Vietnam while it was still trying to negotiate an agreement with North Vietnam. Had that been done in Vietnam, the Agreement of January 27 would never have been achieved; if it were done in Cambodia, there is no reason to believe that a cease-fire could be brought about in Cambodia or that the withdrawal of North Vietnamese forces from Cambodia could be obtained. It can be seen from this analysis that unilateral cessation of our United States air combat activity in Cambodia without the removal of North Vietnamese forces from that country would undermine the central achievement of the January Agreement as surely as would have a failure by the United States to insist on the inclusion in the Agreement of Article 20 requiring North Vietnamese withdrawal from Laos and Cambodia. The President's powers under Article II of the Constitution are adequate to prevent such a self-defeating result. It is worth noting that in reaching a similar conclusion, the report entitled "Congress and the Termination of the Vietnam War" recently prepared for your Committee by the Foreign Affairs Division of the Congressional Research Service, arrived at the same general conclusion as to the President's Constitutional power. One must recognize that the scope and application of the President's powers under Article II of the Constitution are rarely free from dispute. Under the Constitution, the war powers are shared between the Executive and Legislative branches of the Government. The Congress is granted the powers "to provide for the common defense", "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water", "to raise and support armies", "to provide and maintain a navy", "to make rules for the government and regulation of the land and naval forces", and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers. . ." On the other hand, the Constitution provides that "the executive power shall be vested in a President," that he "shall be Commander-in-Chief of the army and navy of the United States," and that "he shall take care that the laws be faithfully executed." The President is also given the authority to make treaties with the advice and consent of two thirds of the Senate, to appoint ambassadors with the advice and consent of the Senate, and to receive ambassadors and other public ministers. 995 The proceedings of the Federal Constitutional Convention in 1787 suggest that the ambiguities of this division of power between the President and the Congress were deliberately left unresolved with the understanding that they were to be defined by practice. There may be those who wish the framers of the Constitution would have been more precise, but it is submitted that there was great wisdom in realizing the impossibility of foreseeing all contingencies and in leaving considerable flexibility for the future play of political forces. The Constitution is a framework for democratic decision and action, not a source of ready-made answers to all questions, and that is one of its great strengths. There is no question but that Congress should play an important role in decisions involving the use of armed forces abroad. With respect to the continuation of U.S. air combat activity in Cambodia, what is that role? The Congress has cooperated with the President in establishing the policy of firmness coupled with an openness to negotiation which has succeeded in bringing about the Agreement of January 27 and which can succeed in securing its implementation. This cooperation has been shown through consultations and through the authorization and appropriation process. The Congress has consistently rejected proposals by some members to withdraw this congressional participation and authority by cutting off appropriations for necessary military expenditures and foreign assistance. The Congress has also enacted several provisions with specific reference to Cambodia. The President's policy in Cambodia has been and continues to be fully consistent with these provisions. SU.S. Constitution, art. I. sec. 8. U.S. Constitution, art. II, secs. 1 and 2. For example, sec. 7 of the Special Foreign Assistance Act of 1971 (Public Law 91-652, Jan. 5, 1971, 84 Stat. 1942) and secs, 655 and 656 of the Foreign Assistance Act of 1961, as amended (added by sec. 304 (b) of Public Law 92-226, Feb. 7, 1972, 86 Stat. 29). |