Mr. WARNKE. I would like to make a few remarks inspired by Senator Goldwater's presentation.

I was impressed by the obvious effort that has gone into Senator Goldwater's statement. I certainly agree with the observation that a similar amount of effort is not demonstrated by the memorandum submitted by the State Department. As a consequence, it is more difficult for me to comment today than if I had the advantage of Senator Goldwater's statement in advance.

I was struck, however, by the singular omission from Senator Goldwater's statement of a case that I regard to be very much in point and that was the Steel Seizure case of 1952. It appears, Mr. Chairman and members of the committee, that periodically an effort is made to establish some implied or inherent powers of the Presidency that go far beyond anything you can find within the confines of the Constitution. Fortunately, when these efforts reach a certain peak they have been rebuffed by the courts, and the Steel Seizure case was such an instance. As you will recall, that occurred during the Korean war and the President, exercising what was described by the Department of Justice as the implied powers of the Presidency to protect the national interest, seized the steel plants in order to prevent their closure as a result of a labor dispute. The case was taken to the courts and was presented to the Supreme Court of the United States on which at that time there were not only a number of constitutional lawyers but also men who owed a great deal of political allegiance and friendship to President Harry Truman. Despite that, the court held that the President had no such implied powers as had been suggested by the Department of Justice and that he must look instead to the provisions of the Constitution of the United States or to legislation of Congress that would empower him to take such action even in wartime as seizing private property in order to keep the weapons of war under production.

Now I submit that the present situation is an a fortiori proposition, that we have here a claim that the President has implied power, not just to seize private property in order to maintain steel production but instead that he can involve the United States in military operations in a foreign country for the purpose of affecting the internal situation. there. In my opinion that claim is without precedent and as a consequence I can cite no authority because it has not been made previously.

What I can cite for the committee is the absence of any provision. in the Constitution of the United States that gives the President the independent power to wage war. The authority for military operations under the Constitution is divided between the Congress and the President but Congress is given the express authority, the exclusive authority to declare war. It is given the responsibility and the authority to raise and maintain armed forces. The President is entrusted with the commander-in-chief power, which I agree gives him plenary authority over military operations during a lawful constitutional war and efforts by the Congress to interfere with that day-to-day conduct of military activity would not only be unconstitutional, it would be foolhardy.

I believe that those who drafted the Constitution really effectively allocated the responsibilities; they did not leave to the President of the United States any independent authority to define and defend the

national interests. Instead, that power, too, is shared between the Congress and the President. There is nothing in the Constitution that says, in the words used by Senator Goldwater, that the President has any independent power as the conductor of the Nation's foreign policy. Even the foreign policy provisions of the Constitution are very carefully allocated as between the legislative and executive branches.

The President is given the authority to make treaties but may do so only with the consent of two-thirds of the Senate. There is nothing in the Constitution that says exclusive power over foreign policy of the United States resides in the executive branch. There appears to be a myth that some such provision exists-it does not.

So consequently in considering the present problem what we have to do is first consider whether there is anything in the Constitution. I submit there is nothing in the Constitution that gives the President the authority to make war without consent of Congress. We look then for consent. We look then for the congressional action that would authorize the continuation of military operations in Indochina. There is nothing in existing legislation that gives the President any such authority.

The Tonkin Gulf resolution of 1964 was at one point described by the then Under Secretary of State Nicholas Katzenbach as the functional equivalent of a declaration of war; certainly its terms were very broad, but its terms have expired and the Tonkin Gulf resolution has been repealed. Accordingly, the only legislation that is currently on the books is legislation enacted by Congress to proscribe the continuation of military operations in Cambodia. There is negative legislation, there is no affirmative legislation.

So we are left then with the consideration as to what is the impact of the peace settlement entered in Paris earlier this year. Does this somehow give the President an independent grant of authority so that he may wage war in order to enforce its provisions? Again I submit that there is no such provision in the agreement and if there were such a provision it would be unlawful.

The agreement, as the committee knows, is not a treaty; it is an executive agreement. I know of no treaty that has self-executing provisions that would permit the President to wage war. If you look at the SEATO treaty, you find that it is quite specific in requiring that any action taken by any of the signatories, including the United States, must be pursuant to constitutional processes. It is, I believe, significant that the Department of State has not relied on the SEATO treaty to validate the present action in Cambodia. It has not done so, I suggest, because the constitutional processes required under the SEATO treaty have never been invoked.

There would also obviously be a distinct question as to whether Cambodia, a protocol state under the treaty, has been subjected to the type of external armed attack that would trigger article IV of the SEATO treaty. I don't believe that it has. I think even executive branch analysts have conceded that the present struggle in Cambodia is primarily one between indigenous forces. It is, therefore, an internaf problem and beyond the scope of article IV of the SEATO treaty. Now as I have suggested, I know of no treaty that would permit the President to utilize military force to bring about adherence to its terms. I think Congress in approving such treaties as the Strategic

Arms Limitation Agreement certainly did so on the basis that any action taken to enforce the provisions of that treaty by the use of military force would be subject to the control of the Congress. So we are left then with merely the declaration that the President because of his interest in a particular solution in Indochina somehow has acquired the right to continue to use American military force. I submit that none of the cases that have been cited by Senator Goldwater, no case that has ever been decided by any court in the United States, in any way vests in the President that degree of peremptory authority over the Armed Forces. The provisions of the Constitution contemplate that Congress will be involved in a declaration of war and that Congress alone can declare war.

There are obviously situations in which the President's authority as Commander in Chief in addition to giving him operational control over military operations would permit him to utilize Armed Forces in a case of national emergency.

If the physical protection of the United States can only be safeguarded by the use of military force, then certainly I think all of us would agree that the President as Commander in Chief has authority to utilize such military force as is necessary to protect and preserve our independence. But that does not mean that considerations of foreign policy, however firmly held by the executive branch, can be implemented and can be carried through strictly by the President without consultation with Congress and by the use of American military force.

In the State Department's memorandum they sum up the issue I think quite well. They state that "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."

I agree that is the issue and I think the answer has to be an affirmative answer. Such power as the President had to conduct military operations in Indochina has now expired and Congress should take appropriate action to see to it that the expiration of this power becomes a fact as well as a constitutional proposition.

Thank you, sir.

Mr. Nix. Let me ask one question. Do you see any justification whatever, legal justification, for the action of the President as a result after an examination of the Paris agreement?

Mr. WARNKE. I see none whatsoever, Mr. Chairman. As a matter of fact, the agreements that have been reached with regard to a settlement in Indochina I think are at variance with the action that has been taken by the President. I have said that this is not a treaty which confers on the President some specific power to use military force. There is nothing even in this executive agreement that suggests that its provisions can be enforced by the unilateral military action of one of the signatories. The International Conference which was subsequently held in Paris, at which 12 of the interested countries participated, specifically provided that in the event of breach there would be consultation among the parties and agreement on the appropriate course of action to be taken.

Mr. Nix. One other observation. As to breach, do you see any evidence consistent with the terms of that agreement that would establish the fact that there is a breach?

Mr. WARNKE. I take it that the chairman's question is directed specifically to Cambodia and the provisions that relate to Cambodia. Mr. Nix. Right.

Mr. WARNKE. I think that is article 20. What that provides is that the foreign forces are to be withdrawn after a cease-fire. Since no ceasefire has gone into effect that provision has not gone into effect; therefore, it cannot be breached. I believe that the State Department has conceded that there is no existing breach of the literal terms of the Paris agreement in this respect but says that there was some sort of an understanding under which the North Vietnamese recognized that the United States might continue military operations in Cambodia if it didn't like the way the situation was developing. I submit that no such understanding can have any constitutional meaning.

Mr. Nix. I specifically referred to the section of the agreement in which they establish an agency to investigate complaints and violations.

Mr. WARNKE. That is correct, sir.

Mr. Nix. And because of the unanimity required there is no opinion as to any violation at all and you would take the position that the United States cannot divest itself from the necessity to live up to that contract because they entered into it allegedly in good faith and the terms were agreed to by them, formulated by them, or they participated in the formulation of those terms.

Now it would seem to me that it would be extremely difficult for them now to say that "We don't abide by what we have done in good faith." Do you see what I am trying to get at?

Mr. WARNKE. I do, Mr. Chairman, and I agree with that position. Mr. Nix. Thank you very much.

Mr. Chayes.

STATEMENT OF ABRAM CHAYES, PROFESSOR OF LAW, HARVARD UNIVERSITY, AND FORMER LEGAL ADVISER, DEPARTMENT OF STATE

Mr. CHAYES. Well, I too, have a very brief statement here and some of it has been adequately covered by my colleague, Mr. Warnke, so I won't read it but I ask that it be put in the record.

Mr. Nix. Without objection, it is so ordered.

[The statement follows:]

STATEMENT OF PROF. ABRAM CHAYES, HARVARD LAW SCHOOL

Mr. Chairman and members of the Committee. My name is Abram Chayes. I am a professor of law at the Harvard Law School where I teach Civil Procedure and International Law. From January 1961 to June 1964, I was the Legal Adviser in the Department of State. The matter before this committee today is of urgent importance and I am grateful for this opportunity to testify. As always it is a great pleasure to appear before you.

In the 100 days since January 27, when the Vietnam cease-fire went into effect, United States forces have conducted over 12,000 bombing sorties in Cambodia, dropping over 82,000 tons of bombs at a cost of almost $160 million. In Laos, the figures are 8,900 sorties, 63,000 tons of bombs and nearly $100 million.

In any opinion, these operations constitute "war," as that term is used in the Constitution. And at present, it is being conducted without any shred of Congressional authorization or endorsement. The war began and is being waged on the unilateral authority of the President. In these circumstances, the activities being carried out by American forces are without basis in the Constitution of the United States.

I have examined with care such legal justifications for the war in Cambodia as the Administration has been able to offer. The principal one is a State Department Legal Memorandum released by Secretary Rogers on April 30. Mr. Anthony Lewis of the New York Times said it would not earn a passing grade for a first year law student. It hardly mentions the Constitution. It can cite no Congressional resolution endorsing or supporting the action. There have been no appropriation bills or other legislation that can be construed as retroactively ratifying the President's actions. There can be no claim of emergency. The bombing has been going on for 100 days, allowing plenty of time to bring the matter before Congress for action. Nor can it be said, as the Administration did about the Cambodian invasion in 1970, that the current action helps defend American troops already engaged and helps speed their return. There are no American troops in Indochina since the end of March when the withdrawal and return of prisoners pursuant to the Vietnam cease-fire was completed. And by law, there have been no American troops in Cambodia since June 30, 1970.

Mr. Rogers' defense of the war now going on in Cambodia, reduces to the claim that the use of force on this scale is necessary to enforce or "preserve" the cease-fire concluded by executive agreement last January 26.

The argument repeated yesterday by Secretary Richardson comes down to this: the conduct of these bombing operations in Cambodia promotes foreign policy objectives that the President deems important. That goes well beyond any claim that has thus far been made for the unilateral power of the President to initiate and carry out military operations. No less sweeping claim can support the present action.

But the idea that the President can commit the United States to war abroad whenever in his view the national interest will be served thereby is the idea of autocracy. It is not the scheme of the Constitution.

Recent events make it very clear that we do no service either to the President or the Presidency when we acquiesce in such sweeping claims to executive power.

I have maintained that the Cambodian war as it is now being conducted is without constitutional basis. That is true, I think, as of this moment, because it is going forward without any shred of Congressional involvement. The courts, although they have been very wary of entering upon this field, have uniformly held that in the case of large scale foreign military activities, there must be "some mutual participation by Congress in accordance with Article I, § 8." Berk v. Laird, 429 F. 2 302 (2d Cir. 1970).

But the situation can change very quickly. In the case I have cited, and a number of others, the courts have been ready to accept ordinary military appropriations, made with knowledge of the military situation, as supplying the Congressional participation that is required under the Constitutional scheme. I do not say that is a proper interpretation of the Constitution. Moreover, in none of the cases to which I am referring, was appropriations action, standing alone, taken as sufficient to satisfy the need for Congressional involvement.

But I do say this: in acting on the defense appropriations measures now before it, Congress acts at its peril. Unless it attaches some qualification or reservation, the Administration will surely point to the passage of these bills as a Congressional endorsement of the President's actions. And the courts may well accept it as providing the mutual participation by Congress necessary to vindicate the action under the Constitution.

I must stress, therefore, as strongly as I can, the grave burden of responsibility that each of you bears as he considers his vote on these bills.

It will not be possible to say, as was so often said about the Tonkin Gulf resolution, that Congress did not appreciate the full significance of what it was doing. The facts about the Cambodian war are fully known and have been for weeks.

It cannot be said that the President has presented the Congress with a fait accompli. There is no emergency. There are no American fighting men who must be supported and defended.