B-133001, MAY 12, 1976, 55 COMP.GEN. 1081

B-133001, MAY 12, 1976, 55 COMP.GEN. 1081

PRESIDENT - AUTHORITY - PROTECTION OF AMERICAN LIVES AND PROPERTY ABROAD PRESIDENT POSSESSES SOME UNILATERAL CONSTITUTIONAL POWER TO PROTECT LIVES AND PROPERTY OF AMERICANS ABROAD, EVEN IN ABSENCE OF SPECIFIC CONGRESSIONAL AUTHORIZATION. COURTS HAVE SUSTAINED OR ALLUDED TO SUCH AUTHORITY AND ITS EXERCISE HAS CONSIDERABLE HISTORICAL SUPPORT. LANGUAGE OF WAR POWERS RESOLUTION AS WHOLE INDICATES IT WAS NOT MEANT TO DIRECTLY RESTRICT PRESIDENT'S POWER, ITS BASIC PURPOSE BEING TO INVOLVE CONGRESS IN DECISION-MAKING PROCESS OF FUTURE WARS. THUS WAR POWERS RESOLUTION IN EFFECT NEITHER INITIALLY PRECLUDES NOR SANCTIONS MILITARY INITIATIVES BY THE PRESIDENT FOR THESE PURPOSES. APPROPRIATIONS - AVAILABILITY - BOMBING INCIDENT TO RESCUE OPERATION USE OF FUNDS TO MAKE PUNITIVE BOMBING STRIKES, I.E., THOSE UNRELATED TO PROTECTION OF MAYAQUEZ CREW BEING RESCUED OR FORCES PROTECTING CREW WOULD APPEAR TO BE IN CONTRAVENTION OF SEVEN FUNDING LIMITATION STATUTES. HOWEVER, EXECUTIVE BRANCH TESTIMONY INDICATES THAT BOMBING STRIKES WERE RELATED TO THE RESCUE OPERATION. APPROPRIATIONS - LIMITATION - COMBAT ACTIVITES IN SOUTHEAST ASIA SEVEN FUNDING LIMITATION STATUTES PROHIBIT USE OF APPROPRIATED FUNDS FOR COMBAT ACTIVITY IN INDOCHINA. WHILE LEGISLATIVE HISTORY OF SEVEN ACTS IS NOT ENTIRELY CLEAR RESPECTING PRESIDENT'S RESCUE POWER, THERE ARE SOME SPECIFIC STATEMENTS THAT SUCH POWER IS NOT RESTRICTED, AND THE OVERALL INTENT OF SEVEN ACTS WAS TO CURTAIL BOMBING AND OFFENSIVE MILITARY ACTION IN SOUTHEAST ASIA. THEREFORE, PRESIDENT'S RECENT EVACUATION OF AMERICANS FROM SAIGON DID NOT CONFLICT WITH SUCH STATUTES. APPROPRIATIONS - AVAILABILITY - EVACUATION OF FOREIGN NATIONALS THERE IS NO SIGNIFICANT SUPPORT FOR CONSTITUTIONAL PRESIDENTIAL AUTHORITY TO RESCUE FOREIGN NATIONALS AS SUCH. HOWEVER, IN THE CASE OF SAIGON EVACUATION, SINCE DECISION TO RESCUE FOREIGN NATIONALS WAS DETERMINED TO BE INCIDENTAL TO AND NECESSARY FOR RESCUE OF AMERICANS, GENERAL ACCOUNTING OFFICE CANNOT SAY EXPENDITURE OF FUND FOR SUCH EVACUATION WAS IMPROPER. PRESIDENT - AUTHORITY - MILITARY PERSONNEL UTILIZATION SECTION 3 OF WAR POWERS RESOLUTION REQUIRES THE PRESIDENT TO CONSULT WITH CONGRESS BEFORE AND DURING INTRODUCTION OF U.S. ARMED FORCES INTO HOSTILITIES OR SITUATIONS CLEARLY INDICATING IMMINENT HOSTILITIES. LEGISLATIVE HISTORY OF SECTION 3 IS CLEAR THAT REQUIREMENT IS NOT SATISFIED BY TOKEN STATEMENT OF ACTIONS INTENDED TO BE TAKEN. WHILE EVIDENCE IN HEARINGS SUBSEQUENT TO MAYAGUEZ RESCUE SUGGESTS PRESIDENT MERELY INFORMED CONGRESS OF DECISIONS ALREADY MADE, REQUIREMENTS OF SECTION 3 ARE NOT SUFFICIENTLY DEFINITIVE TO ESTABLISH VIOLATION IN PRESENT CIRCUMSTANCES. CONGRESS - RESOLUTIONS - WAR POWERS SECTION 4 OF WAR POWERS RESOLUTION REQUIRES PRESIDENT TO REPORT TO CONGRESS THE BASIS FOR, FACTS SURROUNDING, AND ESTIMATED DURATION OF INTRODUCTION OF U.S. ARMED FORCES IN THREE TYPES OF SITUATIONS. HOWEVER, SINCE RESOLUTION DOES NOT EXPRESSLY REQUIRE PRESIDENT TO SPECIFY WHICH SITUATION PROMPTED THE REPORT AND SUCH SPECIFICATION IS IMMATERIAL ANYWAY SINCE FINAL DECISION OF INITIATION OF SECTION 5 ACTIONS IS UP TO CONGRESS, IT APPEARS THAT THE PRESIDENT MET SECTION 4 REQUIREMENTS.

TO THE HONORABLE THOMAS F. EAGLETON, UNITED STATES SENATE, DECEMBER 8, 1975 (RELEASED MAY 12, 1976):

YOUR LETTER OF MAY 5, 1975, REQUESTED OUR OPINION AS TO THE LEGALITY OF THE EXPENDITURE OF FUNDS INVOLVED IN THE RECENT USE OF UNITED STATES ARMED FORCES TO EVACUATE AMERICANS AND FOREIGN NATIONALS FROM SOUTH VIETNAM. YOU ASKED US TO CONSIDER THIS ACTION IN LIGHT OF THE ABSENCE OF ANY SPECIFIC CONGRESSIONAL AUTHORIZATION, THE LEGAL IMPACT OF THE WAR POWERS RESOLUTION, PUBLIC LAW 93-148, NOVEMBER 7, 1973, 87 STAT. 555 (50 U.S.C. 1541 NOTE), THE STATUTORY PROHIBITIONS AGAINST THE USE OF APPROPRIATED FUNDS FOR COMBAT ACTIVITY IN INDOCHINA (PUBLIC LAW 93 437, SEC. 839, OCTOBER 8, 1974, 88 STAT. 1231; PUBLIC LAW 93-238, SEC. 741, JANUARY 2, 1974, 87 STAT. 1045; PUBLIC LAW 93-189, SEC. 30, 22 U.S.C. 2151 NOTE; PUBLIC LAW 93-155, SEC. 806, NOVEMBER 16, 1973, 87 STAT. 615; PUBLIC LAW 93-126, SEC. 13, OCTOBER 18, 1973, 87 STAT. 454; PUBLIC LAW 93-52, SEC. 108, JULY 1, 1973, 87 STAT. 134; AND PUBLIC LAW 93-50, SEC. 307, JULY 1, 1973, 87 STAT. 129, HEREINAFTER REFERRED TO AS THE SEVEN FUNDING LIMITATION STATUTES), AND THE FACT THAT CONGRESS DID NOT APPROVE LEGISLATION PROPOSED BY A HOUSE-SENATE CONFERENCE TO USE AMERICAN FORCES TO RESCUE CERTAIN CATEGORIES OF FOREIGN NATIONALS. YOUR LETTER OF MAY 21, 1975, RAISED ADDITIONAL QUESTIONS CONCERNING THE RESCUE OF THE CREW OF THE AMERICAN MERCHANT SHIP MAYAGUEZ FROM CAMBODIAN TERRITORY.

YOU STATE THAT MOST CONSTITUTIONAL SCHOLARS WOULD AGREE THAT THE PRESIDENT DOES POSSESS SOME UNILATERAL CONSTITUTIONAL POWER TO USE FORCE TO RESCUE AMERICANS. IT IS TRUE THAT THE WEIGHT OF AUTHORITY DOES SUPPORT THIS POSITION. HISTORICALLY PRESIDENTS HAVE CLAIMED, AS AN "INHERENT" OR IMPLIED POWERS OF THE EXECUTIVE, THE RIGHT TO USE U.S. ARMED FORCES TO PROTECT THE LIVES AND PROPERTY OF BOTH AMERICANS AND FOREIGN NATIONALS ABROAD UNDER AUTHORITY VESTED IN THEM BY THE CONSTITUTION TO HOLD THE GENERAL EXECUTIVE POWER OF THE UNITED STATES (U.S. CONSTITUTION ART. 2, SEC. 1, CL. 1); AS COMMANDER-IN-CHIEF OF THE ARMY AND NAVY (U.S. CONSTITUTION ART. 2, SEC. 2, CL. 1); WITH THE CONSENT OF THE SENATE, TO MAKE TREATIES (U.S. CONSTITUTION ART, 2, SEC. 2, CL. 2); AND, THE RESPONSIBILITY TO SEE THAT THE LAWS BE FAITHFULLY EXECUTED (U.S. CONSTITUTION ART. 2, SEC. 3, CL. 1). SEE GENERALLY THE CONSTITUTION OF THE UNITED STATES OF AMERICA-- ANALYSIS AND INTERPRETATION, S. DOC. NO. 92-82, 562-64, 459-64 (1972). A FEW INSTANCES WHERE THIS AUTHORITY HAS BEEN EXERCISED IN THE ABSENCE OF ANY SPECIFIC LEGISLATIVE PROVISION, INVOLVING EVACUATION OF LARGE NUMBERS OF FOREIGN NATIONALS, TOGETHER WITH U.S. CITIZENS, INCLUDE THE BOXER REBELLION IN CHINA IN 1900, THE LANDING OF MARINES IN NICARAGUA IN 1926, DURING THE CONGO CRISIS OF 1964, AND THE DOMINICAN INTERVENTION OF 1965.

THE ONLY DIRECT JUDICIAL SANCTIONING OF THIS AUTHORITY APPEARS TO BE JUSTICE NELSON'S DECISION IN DURAND V. HOLLINS, 8 F.CAS. 111, (NO. 4186) (C.C.S.D.N.Y. 1860). THIS WAS A SUIT AGAINST A NAVY COMMANDER FOR DAMAGES CAUSED BY HIS FORCES DURING AN ACTION TO PROTECT U.S. CITIZENS IN GREYTOWN, NICARAGUA IN 1854. JUSTICE NELSON HELD THAT SINCE THE MILITARY ACTION WAS PURSUANT TO A VALID EXERCISE OF PRESIDENTIAL AUTHORITY, THE NAVY COMMANDER WAS NOT LIABLE:

AS THE EXECUTIVE HEAD OF THE NATION, THE PRESIDENT IS MADE THE ONLY LEGITIMATE ORGAN OF THE GENERAL GOVERNMENT, TO OPEN AND CARRY ON CORRESPONDENCE OR NEGOTIATIONS WITH FOREIGN NATIONS, IN MATTERS CONCERNING THE INTERESTS OF THE COUNTRY OR OF ITS CITIZENS. IT IS TO HIM, ALSO, THE CITIZENS ABROAD MUST LOOK FOR PROTECTION OF PERSON AND OF PROPERTY, AND FOR THE FAITHFUL EXECUTION OF THE LAWS EXISTING AND INTENDED FOR THEIR PROTECTION. FOR THIS PURPOSE, THE WHOLE EXECUTIVE POWER OF THE COUNTRY IS PLACED IN HIS HANDS, UNDER THE CONSTITUTION, AND THE LAWS PASSED IN PURSUANCE THEREOF; AND DIFFERENT DEPARTMENTS OF GOVERNMENT HAVE BEEN ORGANIZED, THROUGH WHICH THIS POWER MAY BE MOST CONVENIENTLY EXECUTED, WHETHER BY NEGOTIATION OR BY FORCE-- A DEPARTMENT OF STATE AND A DEPARTMENT OF THE NAVY.

NOW, AS IT RESPECTS THE INTERPOSITION OF THE EXECUTIVE ABROAD, FOR THE PROTECTION OF THE LIVES OR PROPERTY OF THE CITIZEN, THE DUTY MUST, OF NECESSITY, REST IN THE DISCRETION OF THE PRESIDENT. ACTS OF LAWLESS VIOLENCE, OR THREATENED VIOLENCE TO THE CITIZEN OR HIS PROPERTY, CANNOT BE ANTICIPATED AND PROVIDED FOR; AND THE PROTECTION, TO BE EFFECTUAL OR OF ANY AVAIL, MAY, NOT UNFREQUENTLY, REQUIRE THE MOST PROMPT AND DECIDED ACTION. * * * ID. AT 112.

THE SUPREME COURT HAS, BY DICTUM, ALSO ALLUDED TO SUCH AUTHORITY. IN IN RE NEAGLE, 135 U.S. 1, 63-64 (1889), THE COURT NOTED THAT THE PRESIDENT HAD CERTAIN EXCLUSIVE "RIGHTS, DUTIES AND OBLIGATIONS GROWING OUT OF THE CONSTITUTION ITSELF" WHICH INCLUDED AN IMPLIED OBLIGATION TO PROTECT U.S. CITIZENS ABROAD. THE COURT THEN REFERRED TO A MILITARY ACTION TO PROTECT ONE MARTIN KOSZTA, A FOREIGN NATIONAL WHO HAD INDICATED HIS INTENT TO BECOME A NATURALIZED U.S. CITIZEN. AND IN THE SLAUGHTERHOUSE CASES, 83 U.S. 36, 79 (1873), THE SUPREME COURT SAID THAT ONE OF THE PRIVILEGES AND IMMUNITIES OF A U.S. CITIZEN "IS TO DEMAND THE CARE AND PROTECTION OF THE FEDERAL GOVERNMENT OVER HIS LIFE, LIBERTY, AND PROPERTY WHEN ON THE HIGH SEAS OR WITHIN THE JURISDICTION OF A FOREIGN GOVERNMENT."

IN VIEW OF THE ABOVE, IT APPEARS THE PRESIDENT DOES HAVE SOME AUTHORITY TO PROTECT THE LIVES AND PROPERTY OF AMERICANS ABROAD EVEN IN THE ABSENCE OF SPECIFIC CONGRESSIONAL AUTHORIZATION. THE QUESTION THEN BECOMES WHETHER CONGRESS, IN THE WAR POWERS RESOLUTION, GENERALLY RESTRICTED THIS POWER SUPRA, OR WHETHER ANY OF THE SEVEN FUNDING LIMITATION STATUTES RESTRICTED THE PRESIDENT'S POWER IN THIS REGARD.

THE PERTINENT LANGUAGE IN THE WAR POWERS RESOLUTION, SUPRA, WHICH COULD ARGUABLY BE READ AS RESTRICTING THE PRESIDENT'S POWER TO RESCUE AMERICANS IS THAT OF SECTION 2(C), 50 U.S.C. 1541(C):

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.

THAT SECTION, IN THE WORDS OF SENATOR JAVITS, ONE OF THE PRIMARY SPONSORS OF THE LEGISLATION, IS DESIGNED TO--

* * * PUT THE PRESIDENT ON NOTICE AS TO THE PARAMETERS OF HIS AUTHORITY, DECLARE WHAT WE CONSIDER TO BE THE PRESIDENTIAL POWERS * * * WITH RESPECT TO THE DEFINITION OF A NATIONAL EMERGENCY WHICH WOULD ENTITLE HIM TO INTRODUCE OUR ARMED FORCES INTO HOSTILITIES OR SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES. 119 CONG.REC. 33551 (OCTOBER 10, 1973).

ABSENT FROM SECTION 2(C) AS ENACTED IS LANGUAGE SPECIFICALLY RECOGNIZING THE PRESIDENT'S POWER TO RESCUE AMERICANS AS ONE OF THE SITUATIONS ENTITLING HIM TO INTRODUCE ARMED FORCES INTO HOSTILITIES. BY CONTRAST, HOWEVER, S. 440, 93D CONG., 1ST SESS., THE SENATE VERSION OF THE WAR POWERS LEGISLATION, DID RECOGNIZE SUCH AUTHORITY:

IN THE ABSENCE OF A DECLARATION OF WAR BY THE CONGRESS, THE ARMED FORCES OF THE UNITED STATES MAY BE INTRODUCED IN HOSTILITIES, OR IN SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES, ONLY--

(3) TO PROTECT WHILE EVACUATING CITIZENS AND NATIONALS OF THE UNITED STATES, AS RAPIDLY AS POSSIBLE, FROM (A) ANY SITUATION ON THE HIGH SEAS INVOLVING A DIRECT AND IMMINENT THREAT TO THE LIVES OF SUCH CITIZENS AND NATIONALS, OR (B) ANY COUNTRY IN WHICH SUCH CITIZENS AND NATIONALS ARE PRESENT WITH THE EXPRESS OR TACIT CONSENT OF THE GOVERNMENT OF SUCH COUNTRY AND ARE BEING SUBJECTED TO A DIRECT AND IMMINENT THREAT TO THEIR LIVES, EITHER SPONSORED BY SUCH GOVERNMENT OR BEYOND THE POWER OF SUCH GOVERNMENT TO CONTROL; BUT THE PRESIDENT SHALL MAKE EVERY EFFORT TO TERMINATE SUCH A THREAT WITHOUT USING THE ARMED FORCES OF THE UNITED STATES, AND SHALL, WHERE POSSIBLE, OBTAIN THE CONSENT OF THE GOVERNMENT OF SUCH COUNTRY BEFORE USING THE ARMED FORCES OF THE UNITED STATES BEING EVACUATED FROM SUCH COUNTRY; * * * .

THE GROUNDS LISTED IN SECTION 2(C), READ LITERALLY, ARE EXCLUSIVE IN TERMS OF THE CONGRESSIONAL CONCEPTION OF THE PRESIDENT'S WAR POWERS. SEE ALSO, 119 CONG.REC.,SUPRA, 33558-59 (COLLOQUY BETWEEN SENATORS EAGLETON AND JAVITS). HOWEVER, THE LEGISLATIVE HISTORY SUGGESTS THAT LANGUAGE EXPRESSLY RECOGNIZING SOME PRESIDENTIAL AUTHORITY TO RESCUE AMERICANS WAS OMITTED FROM SECTION 2(C), NOT NECESSARILY TO NEGATE THE EXISTENCE OF SUCH AUTHORITY BUT TO AVOID CONCEDING TOO MUCH. THUS SENATOR JAVITS OBSERVED, ID. AT 33558:

* * * THERE WAS A VERY LONG ARGUMENT (IN CONFERENCE) ABOUT INCLUDING THE CONCEPT OF RESCUING NATIONALS. IT WAS FELT THAT WHATEVER WAS SPECIFIED ON THAT SCORE, IN ORDER TO BE CONSERVATIVE IN RESPECT OF THE PRESIDENT'S POWER, WOULD HAVE TO BE SO HEDGED AND QUALIFIED THAT WE WERE BETTER OFF JUST NOT SAYING IT, IN VIEW OF THE FACT THAT IT IS A RATHER RARE OCCURRENCE, AND JUST LEAVING THAT OPEN; AND THAT IS WHAT WE DID. CF., IN THIS REGARD, ID., 33548 (REMARKS OF SENATOR FULBRIGHT).

IN ANY EVENT, IRRESPECTIVE OF THE INDIVIDUAL VIEWS EXPRESSED DURING THE DEBATES CONCERNING THE SCOPE OF THE PRESIDENT'S CONSTITUTIONAL AUTHORITY, IT IS CLEAR THAT THE SPECIFICATION OF GROUNDS IN SECTION 2(C) DOES NOT IN A STRICT SENSE OPERATE TO RESTRICT SUCH AUTHORITY. THE HEADING OF SECTION 2 OF THE RESOLUTION (50 U.S.C. 1542) IS ENTITLED "PURPOSE AND POLICY." THE GENERAL UNDERSTANDING OF SUCH POLICY SECTIONS, OR PREAMBLES AS THEY ARE FREQUENTLY KNOWN, IS THAT THEY "STATE THE REASON OR OCCASION FOR MAKING A LAW OR TO EXPLAIN IN GENERAL TERMS THE POLICY OF THE ENACTMENT * * * . THE FUNCTION OF THE PREAMBLE IS TO SUPPLY REASONS AND EXPLANATIONS AND NOT TO CONFER POWER OR DETERMINE RIGHTS." 1A SUHTERLAND'S STATUTORY CONSTRUCTION, 20.03,20.12 (4TH ED. 1972). FURTHERMORE, THE LANGUAGE OF THE STATUTE WHEN CONSIDERED AS A WHOLE, PARTICULARLY IN RELATION TO SECTION 8(D), WHICH PROVIDES IN EFFECT THAT PUBLIC LAW 93-148 (5 S.C. 1547(D)) DOES NOT ALTER THE CONSTITUTIONAL AUTHORITY OF THE PRESIDENT OR THE CONGRESS-- INDICATES THAT CONGRESS MEANT SECTION 2(C) ONLY AS A STATEMENT OF POLICY. THIS INTERPRETATION IS BORNE OUT BY THE CONFERENCE COMMITTEE REPORT IN ITS SECTION-BY-SECTION ANALYSIS OF THE RESOLUTION:

SECTION 2(C) IS A STATEMENT OF THE AUTHORITY OF THE COMMANDER-IN CHIEF RESPECTING THE INTRODUCTION OF UNITED STATES ARMED FORCES INTO HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES. SUBSEQUENT SECTIONS OF THE JOINT RESOLUTION ARE NOT DEPENDENT UPON THE LANGUAGE OF THIS SUBSECTION, AS WAS THE CASE WITH A SIMILAR PROVISION OF THE SENATE BILL (SECTION 3). H.R. REP. NO. 93-547, 8 (1973).

BY THIS WAS MEANT THAT THE STRICTLY OPERATIVE PROVISIONS OF THE WAR POWERS RESOLUTION-- PRIMARILY THE REPORTING AND CONGRESSIONAL ACTION MECHANISMS SET FORTH IN SECTIONS 4-7-- WOULD BE TRIGGERED ON THE BASIS OF A "PERFORMANCE TEST," AS SENATOR JAVITS PUT IT, I.E., BY WHAT THE PRESIDENT ACTUALLY DID, PUTTING ASIDE FOR THE MOMENT ANY ISSUE CONCERNING THE CONSTITUTIONAL AUTHORITY FOR HIS ACTIONS. 119 CONG.REC.,SUPRA, 33551. THIS POINT WAS ALSO EMPHASIZED BY REPRESENTATIVE ZABLOCKI, PRINCIPAL HOUSE SPONSOR OF THE WAR POWERS RESOLUTION, ID. AT 33860 (OCTOBER 12, 1973):

THE POSITION OF THE CONFEREES IS THAT IF THE PRESIDENT ASSUMES AUTHORITY WHICH HE DOES NOT HAVE, THE CONGRESS, THEREFORE, RECOGNIZES THAT HE HAS ASSUMED THAT AUTHORITY. THUS, THE USE OF U.S. ARMED FORCES FOR A PARTICULAR PERIOD BY THE EXECUTIVE BRANCH CAN BE TERMINATED BY A CONCURRENT RESOLUTION OF THIS BODY. THAT IS CONSTITUTIONAL. THIS IS THE POSITION THE CONFEREES HAVE TAKEN.

IT IS AN ASSUMPTION OF AUTHORITY ON THE PART OF THE PRESIDENT TO COMMIT TROOPS, AND IF HE DOES NOT HAVE THAT AUTHORITY WE CAN INDEED TERMINATE THE COMMITMENT OF TROOPS BY CONCURRENT RESOLUTION. BUT IF HE DOES HAVE THAT AUTHORITY FROM THE CONSTITUTION, WE RESTRICT THE PERIOD OF TIME HE MAY CARRY OUT THAT COMMITMENT WITHOUT CONGRESSIONAL CONCURRENCE.

IN SUM, IT IS CLEAR THAT THE BASIC PURPOSE OF THE WAR POWERS RESOLUTION WAS TO INVOLVE CONGRESS IN THE DECISION-MAKING PROCESS OF FUTURE HOSTILITIES OR POTENTIAL HOSTILITIES, INCLUDING, OF COURSE, RESCUE OPERATIONS. HOWEVER, THE VALIDITY OF SUCH ACTIONS IS IN EFFECT LEFT OPEN FOR CONSIDERATION THROUGH THE CONGRESSIONAL REVIEW PROCEDURES.

TURNING NEXT TO THE SEVEN FUNDING LIMITATION STATUTES, NEITHER THE LANGUAGE OF THE ACTS NOR THEIR LEGISLATIVE HISTORIES MAKE CLEAR CONGRESSIONAL INTENT RESPECTING THE PRESIDENT'S POWER TO RESCUE AMERICANS ABROAD. MOST DISCUSSION AND DEBATE OCCURRED DURING CONSIDERATION OF THE FIRST TWO FUNDING LIMITATION STATUTES, PUBLIC LAW 93-50 AND PUBLIC LAW 93-52, WHICH EXPRESSED THE PROHIBITION IN TERMS OF "COMBAT ACTIVITIES" BY UNITED STATES FORCES IN OR OVER OR FROM OFF THE SHORES OF CAMBODIA, LAOS, NORTH VIETNAM AND SOUTH VIETNAM. THE REMARKS OF SENATOR MCCLELLAN UPON SUBMISSION OF THE CONFERENCE REPORT FOR PUBLIC LAW 93-52 INDICATE THAT THESE TWO MEASURES WERE MEANT TO BE CONSISTENT WITH EACH OTHER, AND EFFORT WAS TAKEN TO PREVENT VARYING INTERPRETATIONS. 119 CONG.REC. 22604 (JUNE 30, 1973). OUR EXAMINATION OF THE LEGISLATIVE HISTORIES OF THE FIRST TWO STATUTES DOES NOT REVEAL EXTENSIVE DISCUSSION CONCERNING THE SCOPE OF THE PROHIBITION OR ITS POSSIBLE EFFECT UPON RESCUE OPERATIONS. HOWEVER, DURING DEBATE ON THE LEGISLATION ENACTED AS PUBLIC LAW 93-52-- THE CONTINUING RESOLUTION-- THE FOLLOWING COLLOQUY TOOK PLACE BETWEEN THEN REPRESENTATIVE GERALD R. FORD AND REPRESENTATIVE ADDABBO, HOUSE SPONSOR OF THE PROHIBITION:

MR. GERALD R. FORD. * * * IF THIS RESOLUTION BECOMES LAW, IF AN ENEMY IN THE PACIFIC TAKES SOME MILITARY ACTION IN ANY ONE OF THESE FOUR AREAS AND PUTS IN JEOPARDY THE LIVES OF AMERICAN CIVILIANS IN ANY ONE OF THESE AREAS, OR THE LIVES OF ANY U.S. MILITARY PERSONNEL IN ANY ONE OF THESE AREAS, UNTIL THE PRESIDENT COMES TO CONGRESS AND GETS CONSENT HE CANNOT PROTECT THESE LIVES.

I SUGGEST THAT SHOULD AN ENEMY ATTACK US AND PUT OTHER AMERICAN LIVES IN JEOPARDY, THE COMMANDER IN CHIEF OUGHT TO HAVE SOME FLEXIBILITY TO PROTECT THOSE LIVES. THE ADDABBO AMENDMENT DOES NOT GIVE THE PRESIDENT THAT FLEXIBILITY, AND THE GENTLEMAN FROM CONNECTICUT HAS TOTALLY CONFIRMED THAT INTERPRETATION.

MR. ADDABBO. THE GENTLEMAN FROM MICHIGAN IS SPEAKING OF PROTECTIVE ACTION. I AM SPEAKING OF DIRECT COMBAT ACTION BY OUR FORCES. WE ARE NOT AMENDING THE CONSTITUTION HERE THIS AFTERNOON; WE ARE TAKING A CONGRESSIONAL PREROGATIVE. THE PRESIDENT STILL HAS, AS COMMANDER IN CHIEF, CERTAIN WAR POWERS, AND IF ANY PLACE IN THIS WORLD OUR FORCES ARE THREATENED OR ATTACKED, HE CAN MOVE FOR THE MOMENT. BUT WE ARE NOT DOING THAT. WE ARE, AFTER TWO CEASE-FIRE AGREEMENTS IN SOUTHEAST ASIA, TELLING THE PRESIDENT AND THE DEPARTMENT OF DEFENSE THAT WHEN THIS CONGRESS SPEAKS, IT MEANS WHAT IT SAYS, NOT THAT WHEN IT SPEAKS, THEY CAN STILL DETERMINE OR TRY TO INTERPRET WHAT WE ARE SAYING. WHEN WE SAY STOP BOMBING, THEY SAY "WE CAN STILL BOMB." THIS IS WHAT WE ARE TRYING TO DO THIS AFTERNOON.

MR. GERALD R. FORD. MR. SPEAKER, IT IS MY UNDERSTANDING THAT THE GENTLEMAN FROM NEW YORK IN HIS PREVIOUS COMMENT SAID THAT THE PRESIDENT AS COMMANDER IN CHI F HAS CERTAIN CONSTITUTIONAL MILITARY RESPONSIBILITIES AND OPPORTUNITIES-- I CANNOT REMEMBER HIS PRECISE LANGUAGE-- WHICH WOULD GO BEYOND THE LIMITATION IN THIS AMENDMENT; IS THAT CORRECT?

MR. ADDABBO. HIS RIGHTS UNDER THE CONSTITUTION AS COMMANDER IN CHIEF, YES. 119 CONG.REC. 21312-13 (JUNE 26, 1973).

WHILE SOME STATEMENTS IN THE LEGISLATIVE HISTORY SUGGEST THAT THE PROHIBITION WAS NOT SO LIMITED, AND THERE WAS CERTAINLY NO CLEAR CONSENSUS IN THIS REGARD, WE ARE INCLINED TO ACCEPT MR. ADDABBO'S VIEW AS THE MOST DIRECT EXPRESSION ON THE ISSUE THAT THE PROHIBITORY LANGUAGE DOES NOT NECESSARILY PRECLUDE RESCUE OPERATIONS. MOREOVER, MR. ADDABBO'S DISTINCTION BETWEEN "DIRECT COMBAT ACTIONS"-- APPARENTLY MEANING OFFENSIVE OPERATIONS-- AND PROTECTIVE ACTIONS FINDS SUPPORT IN THE PERVASIVE EMPHASIS AT ALL STAGES OF DEBATE UPON ENDING THE VESTIGES OF AMERICAN WARFARE IN SOUTHEAST ASIA, MOST SPECIFICALLY THE BOMBING OPERATIONS TAKING PLACE AT THE TIME.

THE PRECISE LANGUAGE OF THE SUBSEQUENT FUNDING LIMITATION STATUTES VARIES -- RANGING FROM UNITED STATES "COMBAT OPERATIONS" TO "INVOLVEMENT * * * IN HOSTILITIES" TO "MILITARY OR PARAMILITARY OPERATIONS." THE LANGUAGE OF THE FUNDING LIMITATIONS CLEARLY APPEARS TO HAVE BECOME PROGRESSIVELY MORE COMPREHENSIVE. HOWEVER, WE BELIEVE THAT A BASIC DISTINCTION BETWEEN OFFENSIVE AND DEFENSIVE OPERATIONS STILL NECESSARILY UNDERLIES EVEN THE BROADEST STATUTORY LANGUAGE. FOR EXAMPLE, THE TERM "MILITARY OR PARAMILITARY OPERATIONS," IF TAKEN LITERALLY, WOULD EXTEND TO ANY "OPERATION" ORGANIZED, DIRECTED, OR OTHERWISE CARRIED OUT BY UNITED STATES MILITARY FORCES. THUS A LITERAL APPLICATION OF THIS LANGUAGE WOULD IN THEORY HAVE PRECLUDED (1) A WITHDRAWAL OF AMERICANS FROM VIETNAM BY USE OF MILITARY FORCES AND FACILITIES EVEN ABSENT A SIGNIFICANT LIKELIHOOD OF COMBAT WITH ANY FORCE, OR (2) AN EVACUATION OF AMERICANS INVOLVING THE USE, OR POTENTIAL USE, OF MILITARY FORCE TO PREVENT INTERFERENCE BY THE SOUTH VIETNAMESE ALONE, IN ADVANCE OF ANY THREAT OF ENEMY INTERFERENCE. SUCH A LITERAL CONSTRUCTION SEEMS UNTENABLE, THEREBY PERMITTING RESORT TO THE LEGISLATIVE HISTORY. IN THIS REGARD, IT APPEARS THAT THE INTENDED PURPOSE AND EFFECT OF SUCH STATUTES WAS ESSENTIALLY TO CONTINUE AND REAFFIRM THE ORIGINAL PROHIBITIONS. SEE, E.G., H.R. REP. NO. 93-558, 44 (1973) (ON PUBLIC LAW 93-155); H.R. REP. 93-664, 51 (1973) (ON PUBLIC LAW 93-189); H.R. REP. NO. 93-662, 227 (1973) (ON PUBLIC LAW 93-238). ACCORDINGLY, WE BELIEVE THAT MR. ADDABBO'S CONSTRUCTION IS APPLICABLE AS WELL TO THE FUNDING LIMITATION STATUTES.

FOR THE REASONS STATED ABOVE, WE BELIEVE THAT, AS A MATTER OF STATUTORY INTERPRETATION, THE AVAILABILITY OF APPROPRIATIONS FOR RESCUE OPERATIONS FOR AMERICANS IS NOT FLATLY PRECLUDED BY THE SEVEN FUNDING LIMITATION STATUTES.

THE FOREGOING ANALYSIS IS CONFINED TO THE PROTECTION AND RESCUE OF AMERICANS ABROAD. AS INDICATED IN YOUR MAY 5 LETTER, THERE APPEARS TO BE NO SIGNIFICANT SUPPORT FOR THE CONCEPT OF PRESIDENTIAL AUTHORITY TO RESCUE FOREIGN NATIONALS AS SUCH. SEE, E.G., ON APRIL 15, 1975, MEMORANDUM ON THIS POINT BY THE SENATE OFFICE OF LEGISLATIVE COUNSEL, PRINTED IN S. REP. NO. 94-88, 14 (1975). IN FACT, THE EXECUTIVE BRANCH APPARENTLY DOES NOT CLAIM, AT LEAST OFFICIALLY, THAT THE PRESIDENT HAS INDEPENDENT AUTHORITY TO RESCUE FOREIGN NATIONALS. THUS, FOR EXAMPLE, A MEMORANDUM ENTITLED "THE PRESIDENT'S AUTHORITY TO USE ARMED FORCES TO EVACUATE U.S. CITIZENS AND FOREIGN NATIONALS FROM AREAS OF HOSTILITY," SUMMARIZES THE EXECUTIVE BRANCH VIEW WITH RESPECT TO THE PRESIDENT'S CONSTITUTIONAL AUTHORITY AS FOLLOWS:

THE NATURE AND BASIS OF THE PRESIDENT'S AUTHORITY WAS SUCCINCTLY STATED BY PRESIDENT TAFT IN 1916, FOLLOWING THE TERMINATION OF HIS TERM IN OFFICE:

"HE (THE PRESIDENT) HAS DONE THIS (USED MILITARY FORCE TO PROTECT AMERICANS) UNDER HIS GENERAL POWER AS COMMANDER IN CHIEF. IT GROWS NOT OUT OF ANY SPECIFIC ACT OF CONGRESS, BUT OUT OF THAT OBLIGATION, INFERABLE FROM THE CONSTITUTION, OF THE GOVERNMENT TO PROTECT THE RIGHTS OF AN AMERICAN CITIZEN AGAINST FOREIGN AGGRESSION * * * ." (WILLIAM HOWARD TAFT, THE PRESIDENT AND HIS POWER, (1967) P. 94-95 (ORIGINALLY PUBLISHED IN 1916)).

THIS REMAINS THE POSITION OF THE EXECUTIVE BRANCH. /0/

OBVIOUSLY THE FOREGOING RATIONALE HAS NO APPLICATION TO FOREIGN NATIONALS. THE ONLY CLAIM AS TO THE LATTER SET FORTH IN THE MEMORANDUM IS THAT "THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO RESCUE FOREIGN NATIONALS AS AN INCIDENT TO THE EVACUATION OF AMERICANS (HAS) SIGNIFICANT HISTORICAL SUPPORT." MOREOVER, THE MEMORANDUM GOES ON TO CONCEDE THAT "SINCE THE EVACUATION OF VIETNAMESE MIGHT HAVE RAISED QUESTIONS BEYOND THOSE APPLICABLE TO AN OPERATION LIMITED TO AMERICANS, THE SUPPORT AND CLARIFICATION OF CONGRESS WAS SOUGHT IN THE PRESIDENT'S ADDRESS TO CONGRESS ON APRIL 10, 1975."

APPLYING THE FOREGOING GENERAL CONSIDERATIONS TO THE MATTERS WHICH YOU RAISE, WE TURN FIRST TO THE SAIGON EVACUATION. THE FOLLOWING SUMMARY OF THE EVACUATION WAS GIVEN BY MR. MONROE LEIGH, LEGAL ADVISER TO THE DEPARTMENT OF STATE, ON MAY 7, 1975:

ON APRIL 28, FOLLOWING ROCKETING OF TAN SON NHUT AIRFIELD IN SAIGON THE PRESIDENT DIRECTED THAT CONGRESSIONAL LEADERS BE NOTIFIED THAT THE FINAL PHASE OF THE EVACUATION OF SAIGON WOULD BE CARRIED OUT BY MEANS OF MILITARY FORCES WITHIN THE NEXT FEW HOURS.

AT 11:30 A.M. ON APRIL 29, THE PRESIDENT MET WITH CONGRESSIONAL LEADERS AT THE WHITE HOUSE, AT WHICH TIME THERE WAS A FURTHER BRIEFING ON THE SITUATION IN SAIGON.

BEGINNING AT 1:00 A.M. EDT, APRIL 29, 1975, A FORCE OF 70 HELICOPTERS AND 865 MARINES EVACUATED, ACCORDING TO OUR COUNT 1,373 U.S. CITIZENS, TOGETHER WITH APPROXIMATELY 5,595 SOUTH VIETNAMESE AND 85 THIRD COUNTRY NATIONALS. THESE EVACUATIONS TOOK PLACE FROM LANDING ZONES IN THE VICINITY OF THE AMERICAN EMBASSY AT SAIGON AND THE DEFENSE ATTACHE'S OFFICE AT TAN SON NHUT AIRFIELD. A TOTAL OF 630 HELICOPTER EVACUATION SORTIES WAS FLOWN. THE LAST ELEMENTS OF THIS FORCE WERE WITHDRAWN AT 7:46 P.M. EDT, ON THE SAME DAY. UNFORTUNATELY, TWO CREW MEMBERS OF A NAVY SEARCH AND RESCUE HELICOPTER WERE LOST AT SEA. ON THE PREVIOUS DAY, TWO MARINES ASSIGNED TO PERMANENT GUARD DUTY AT THE DEFENSE ATTACHE'S OFFICE AT THE AIRFIELD WERE KILLED BY ROCKET ATTACKS INTO THE REFUGEE STAGING AREA. NO OTHER CASUALTIES ARE KNOWN TO HAVE OCCURRED. HEARINGS ON CONGRESSIONAL OVERSIGHT OF THE PRESIDENT'S COMPLIANCE WITH THE WAR POWERS RESOLUTION BEFORE THE SUBCOMMITTEE ON INTERNATIONAL SECURITY AND SCIENTIFIC AFFAIRS OF THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS, 94TH CONG., 1ST SESS., MAY 7 AND JUNE 4, 1975, GALLEY PROOFS, P. 9 (HEREINAFTER REFERRED TO AS HEARINGS).

ON APRIL 30, 1975, THE PRESIDENT REPORTED THIS OPERATION TO THE CONGRESS IN ACCORDANCE WITH SECTION 4 OF THE WAR POWERS RESOLUTION. ID. AT 9-10. IN ADDITION TO THE FACTS RECITED BY MR. LEIGH, SUPRA, THE PRESIDENT'S REPORT NOTES THAT:

* * * U.S. FIGHTER AIRCRAFT PROVIDED PROTECTIVE AIR COVER FOR THIS OPERATION, AND FOR THE WITHDRAWAL BY WATER OF A FEW AMERICANS FROM CAN THO, AND IN ONE INSTANCE SUPPRESSED NORTH VIETNAMESE ANTI-AIRCRAFT ARTILLERY FIRING UPON EVACUATION HELICOPTERS AS THEY DEPARTED. THE GROUND SECURITY FORCES ON OCCASION RETURNED FIRE DURING THE COURSE OF THE EVACUATION OPERATION.

THE PRESIDENT'S REPORT STATES THAT THE OPERATION WAS ORDERED "OUT OF CONSIDERATION FOR THE SAFETY OF U.S. CITIZENS," AND "PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL EXECUTIVE POWER AND HIS AUTHORITY AS COMMANDER- IN-CHIEF OF U.S. ARMED FORCES."

APPARENTLY YOU DO NOT QUESTION THE VALIDITY OF THE APRIL 29 OPERATION INSOFAR AS THE EVACUATION OF AMERICANS IS CONCERNED. HOWEVER, IN YOUR LETTER OF MAY 5, YOU STATE THAT THE RATIO OF AMERICANS TO FOREIGN NATIONALS RESCUED FROM SOUTH VIETNAM (APPROXIMATELY 1:6) INDICATES THAT U.S. FORCES WERE EXPOSED TO HOSTILITIES FOR A CONSIDERABLY LONGER PERIOD THAN WOULD HAVE BEEN NECESSARY TO RESCUE AMERICAN CITIZENS ALONE, AND THAT U.S. NAVAL VESSELS REMAINED WITHIN THE TERRITORIAL WATERS OF SOUTH VIETNAM LONG AFTER THE HELICOPTER RESCUE MISSION WAS COMPLETED. YOU ALSO STATE THAT IT HAS BEEN REPORTED THAT THE ADMINISTRATION FUNDED THE VIETNAM EVACUATION FROM A DEFENSE DEPARTMENT CONTINGENCY FUND."

MR. LEIGH MAINTAINED DURING THE MAY 7 HEARINGS THAT THE RESCUE OF THE FOREIGN NATIONALS WAS INCIDENTAL TO AND NECESSARY FOR THE SAFE AND ORDERLY RESCUE OF THE AMERICAN CITIZENS AND THAT IT WAS A MATTER OF JUDGMENT AS TO WHOM WAS TAKEN OUT. HEARINGS, AT 13-15, 17. THE FOLLOWING EXCERPTS FROM THE TESTIMONY OF MR. MARTIN HOFFMANN, THEN GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, DURING THE MAY 7 HEARINGS DESCRIBED THE SITUATION CONFRONTING THOSE REQUIRED TO MAKE THIS DECISION:

NATIONALITY SEGREGATION COULD HAVE TRIGGERED SEVERE DISORDER

* * * THE FEELING WAS THAT HAD WE ATTEMPTED AT THAT TIME TO SEPARATE OUT, THE VIETNAMESE THAT WERE WRAPPED AROUND THE AMERICANS AS IT WERE, THERE WOULD HAVE BEEN A POTENTIAL NOT ONLY FOR RATHER SEVERE DISORDER WITHIN THE COMPOUND AND WITHIN THE ACTUAL AREAS FROM WHICH THE EVACUATION WAS BEING STAGED, BUT IT MIGHT HAVE TRIGGERED A FAR DIFFERENT REACTION OUTSIDE THE COMPOUND AND OUTSIDE THE EMBASSY.

NOW AS THE EVACUATION PROCEEDED, OF COURSE AMERICANS IN VIETNAM WHO WERE IN THE SAIGON AREA WERE ALERTED THAT THE FINAL EVACUATION WAS TO TAKE PLACE AND THEY SHOULD GO TO THEIR ASSEMBLY POINT. THESE ASSEMBLY POINTS WERE NOT IN EITHER THE DAO COMPOUND OR THE EMBASSY AT THIS TIME AND THERE WAS THE NECESSITY TO SEND OUT AND BRING THESE AMERICANS BACK TO THE COMPOUND.

IN ADDITION, AS HAD BEEN HAPPENING PREVIOUSLY, A CERTAIN NUMBER OF AMERICANS WERE TURNING UP EVERY DAY OF WHOSE PRESENCE THE EMBASSY HAD PREVIOUSLY BEEN UNAWARE OF-- JUST WALKING IN OFF THE STREET, AS A MATTER OF FACT-- AND IT WAS FELT THAT THERE WOULD BE A NUMBER OF THOSE WHO WOULD COME IN SIGNALED BY THE EVACUATION ITSELF. AS A PRACTICAL MATTER THEY WERE COMING INTO THE DAO COMPOUND AND THE EMBASSY DOWNTOWN.

SOUTH VIETNAMESE FAMILIES ASSURED EVACUATION

I POINT THIS OUT LAST. THERE HAD BEEN A NUMBER OF FAMILIES OF SOUTH VIETNAMESE MILITARY OFFICERS WHO HAD BEEN EVACUATED PREVIOUSLY AND THEY HAD RECEIVED A COMMITMENT THAT THEY WOULD BE EVACUATED IN THE FINAL LIFT. FROM A MILITARY POINT OF VIEW, I DOUBT THAT HAD THE SOUTH VIETNAMESE ARMY TURNED ON THE EVACUATION AT THAT POINT IT WOULD HAVE BEEN POSSIBLE TO BRING THESE AMERICANS OUT WITHOUT CASUALTIES.

AS IT WAS, THROUGH THE AMBASSADOR'S HANDLING OF THE MATTER, IN KEEPING THE SITUATION FLOWING AND ASSURING THAT THE EVACUATION ZONES WERE ORDERLY, AS IT TURNED OUT HE WAS ABLE TO GET THE ENTIRE AMERICAN GROUP OUT WITHOUT A SINGLE CASUALTY. I THINK A PART OF THIS WAS UNQUESTIONABLY DUE TO THE FACT THAT HE WAS ABLE TO MAINTAIN THIS FLOW AND MAINTAIN THE CONFIDENCE OF THE SOUTH VIETNAMESE EVEN TO THE END.

VIETNAMESE EVACUATION PLAYED ESSENTIAL ROLE IN AMERICANS SAFETY

* * * IT WAS FELT BY THE MILITARY INDIVIDUALS THAT THE EVACUATION OF SOUTH VIETNAMESE WAS AN ESSENTIAL PART OF GETTING THOSE AMERICANS OUT OF THERE, BOTH FROM THE POINT OF VIEW OF EXTENDING THE TIME TO ACCOMMODATE THEM ALL AND KEEPING THE EVACUATION FLOWING ALONG. ID. AT 21-22. NOTED, THE APRIL 29 OPERATION IS OFFICIALLY JUSTIFIED AS A RESCUE OF AMERICAN CITIZENS WHEREIN THE EVACUATION OF VIETNAMESE NATIONALS WAS NECESSARILY INCIDENT TO THE SAFE AND SUCCESSFUL RESCUE OF THE AMERICANS. ASSUMING THE FUNDAMENTAL VALIDITY OF THIS JUSTIFICATION - WHICH WE HAVE NO BASIS TO QUESTION-- IT FOLLOWS, IN OUR VIEW, THAT THE PRESIDENT MUST BE ACCORDED CONSIDERABLE OPERATIONAL DISCRETION. IT MAY WELL BE THAT MORE VIETNAMESE WERE ACTUALLY REMOVED THAN A MINIMUM NECESSARY TO PROTECT THE AMERICAN EVACUEES AND THAT THEIR RESCUE WAS MOTIVATED IN PART BY MORAL AND HUMANITARIAN CONSIDERATIONS. HOWEVER, IT WOULD BE VIRTUALLY IMPOSSIBLE TO DETERMINE PRECISELY HOW MANY EVACUEES CONSTITUTED THE NECESSARY MINIMUM.

YOU POINT OUT IN YOUR LETTER THAT CONGRESS DID NOT APPROVE PROPOSED LEGISLATION TO USE AMERICAN FORCES TO RESCUE CERTAIN CATEGORIES OF FOREIGN NATIONALS. IN ACCORDANCE WITH THE PRESIDENT'S REQUEST, THE "VIETNAM CONTINGENCY ACT OF 1975," S. 1484, AND THE "VIETNAM HUMANITARIAN ASSISTANCE AND EVACUATION ACT OF 1975," H.R. 6096, 94TH CONG., WERE INTRODUCED TO, INTER ALIA, AUTHORIZE FUNDS FOR THE EVACUATION OF CERTAIN VIETNAMESE NATIONALS. HOWEVER, CONDITIONS PRECIPITATED THE EVACUATION BEFORE FINAL ACTION COULD BE TAKEN ON THESE BILLS. THE CONFERENCE REPORT ON THIS LEGISLATION (SPECIFICALLY, H.R. 6096) WAS REJECTED BY THE HOUSE OF REPRESENTATIVES ON MAY 1, 1975-- SUBSEQUENT TO THE EVACUATION-- FOR WHAT APPEARS TO BE A NUMBER OF REASONS LARGELY UNRELATED TO THE ISSUES HERE INVOLVED. SEE GENERALLY, CONG. REC., MAY 1, 1975 (DAILY ED.), H3540- 3551. THUS WE BELIEVE THAT THE DISPOSITION OF THIS LEGISLATION IS ESSENTIALLY A MOOT POINT IN TERMS OF SUCH ISSUES. CONCERNING THE REASONS FOR THIS LEGISLATION, MR. LEIGH'S TESTIMONY AT THE MAY 7 HEARING INDICATES THAT THE EXECUTIVE BRANCH WAS SEEKING CONGRESSIONAL "CONFIRMATION" THAT THE EVACUATION OF FOREIGN NATIONALS INCIDENT TO THE RESCUE OF AMERICANS WAS NOT PRECLUDED BY THE FUNDING LIMITATION STATUTES. IN ADDITION, THERE WAS APPARENTLY A GENERAL DESIRE TO OBTAIN THE POLITICAL SUPPORT OF CONGRESS FOR THE OPERATION. SEE HEARINGS, SUPRA, AT 17-19, 24. IN ANY EVENT, THE MOTIVES OF THE EXECUTIVE BRANCH IN REQUESTING THE LEGISLATION WOULD NOT BE DISPOSITIVE OF THE INSTANT LEGAL ISSUES.

YOU ALSO REFER TO THE FACT THAT IT HAS BEEN REPORTED THAT THE ADMINISTRATION FUNDED THE VIETNAM EVACUATION FROM A DEFENSE DEPARTMENT CONTINGENCY FUND. IN A LETTER DATED MAY 16, 1975, FROM THE SECRETARY OF DEFENSE TO CHAIRMAN INOUYE OF THE SUBCOMMITTEE ON FOREIGN OPERATIONS OF THE SENATE APPROPRIATIONS COMMITTEE (CONG. REC., DAILY ED., MAY 16, 1975, S. 8537), THE SECRETARY STATES THAT DOD USED FUNDS FROM REGULAR OPERATING ACCOUNTS. IN ADDITION, HE SPECIFIES WHAT REIMBURSEMENTS WILL BE REQUESTED OF THE DEPARTMENT OF STATE. THE FOLLOWING TESTIMONY OF MR. HOFFMANN DURING THE MAY 7 HEARING DESCRIBES THE FINANCING OF VIETNAMESE EVACUATION FLIGHTS BY "BACKHAUL" ON MILITARY SUPPLY AIRCRAFT AND OTHERWISE PRIOR TO THE APRIL 29 OPERATION:

MR. HOFFMANN. THE RESUPPLY EFFORTS AND THE SUPPLY PLANES WHICH WERE BOTH CHARTERS AND U.S. INDIGENOUS AIR FORCE PLANES WERE PAID OUT OF APPROPRIATIONS FOR THAT PURPOSE, THE SO-CALLED PENTAGON, AND I BELIEVE THERE WERE SOME AID PROGRAMS AND MONEY EXPENDED PURSUANT THERETO. WITH RESPECT TO THE COMMERCIAL AIRLINES, IT IS MY INFORMATION THAT THE PEOPLE THAT WENT OUT ON COMMERCIAL AIRLINES PAID THEIR WAY.

MR. SOLARZ. SO THAT THE BULK OF THE VIETNAMESE WHO WERE EVACUATED PRIOR TO THE FINAL AIRLIFT ON FIXED WING AIRPLANES WERE EVACUATED THROUGH A PROCESS THAT WAS IN EFFECT INCIDENTAL TO THE SUPPLY EFFORT WHICH WAS FUNDED UNDER PRIOR AUTHORIZATIONS?

MR. HOFFMANN. I BELIEVE THERE MAY HAVE COME A TIME TOWARD THE END AT WHICH THERE WERE AIRCRAFT BEING FLOWN EXCLUSIVELY FOR THE PURPOSE OF EVACUATION. HEARINGS, 30.

BASED ON INVESTIGATIONS WE HAVE CONDUCTED TO DATE, WE HAVE NO INDICATION THAT FUNDS OTHER THAN THOSE DESCRIBED BY DOD WERE USED IN THE VIETNAM EVACUATION.

IN YOUR LETTER OF MAY 21, 1975, YOU ASK US TO DETERMINE THE LEGALITY OF THE EXPENDITURE OF FUNDS USED IN THE RECENT RESCUE OF THE AMERICAN MERCHANT SHIP MAYAGUEZ. YOUR MAY 21 LETTER STATES IN PART:

* * * IF THE PRESIDENT HAS INHERENT POWERS TO USE AMERICAN FORCES TO RESCUE ENDANGERED AMERICAN CITIZENS, IT IS MY VIEW THAT HE HAS NO UNILATERAL POWER TO TAKE OFFENSIVE OR PUNITIVE ACTION WHICH DOES NOT RELATE DIRECTLY TO THE PROTECTION OF THE CITIZENS TO BE RESCUED OR THE FORCES USED TO PROTECT THOSE CITIZENS.

IN THIS REGARD, I HAVE READ PRESS ACCOUNTS OF THE MILITARY OPERATION EMPLOYED TO RESCUE THE CREW OF THE MAYAGUEZ. I HAVE HEARD THAT PUNITIVE ACTION UNRELATED TO THE RESCUE ITSELF MIGHT HAVE BEEN TAKEN AGAINST CAMBODIA. IF, FOR EXAMPLE, THE BOMBING OF REAM AIRPORT AND PORT FACILITIES AT SIHANOUKVILLE-- BOMBING WHICH TOOK PLACE A HALF HOUR AFTER THE CREW OF THE MAYAGUEZ WAS SAFELY ABOARD THE WILSON-- WAS UNRELATED TO THE NEED TO PROTECT U.S. FORCES, THEN THE PRESIDENT, IN MY OPINION, EXCEEDED HIS AUTHORITY UNDER THE CONSTITUTION AND VIOLATED SPECIFIC PROHIBITIONS AGAINST COMBAT ACTIVITY IN INDOCHINA. * * *

THE FOLLOWING SUMMARY OF PERTINENT ASPECTS OF THE MAYAGUEZ RESCUE OPERATION HAS BEEN EXTRACTED FROM THE OFFICIAL CHRONOLOGY PREPARED BY THE DEPARTMENT OF DEFENSE (TIMES USED ARE EASTERN DAYLIGHT TIME.) SHORTLY AFTER MIDNIGHT, ON MAY 12, 1975, THE VESSEL MAYAGUEZ, WHILE TRAVERSING A STANDARD SEALANE AND TRADE ROUTE IN INTERNATIONAL WATERS, WAS FIRED UPON, BOARDED, AND SEIZED BY CAMBODIAN FORCES. WITHIN A FEW HOURS, UNITED STATES NAVAL VESSELS WERE MOVED INTO THE AREA AND UNITED STATES RECONNAISSANCE AIRCRAFT BEGAN SURVEILLANCE COVERAGE WHICH LASTED UNTIL THE END OF THE OPERATION. BY THE END OF THE DAY, THE MAYAGUEZ HAD BEEN MOVED TO NEAR KAOH TANG ISLAND.

EARLY ON MAY 13, THE COMMANDER IN CHIEF PACIFIC (CINCPAC) WAS DIRECTED TO MAINTAIN FIGHTER/GUNSHIP COVER OVER THE MAYAGUEZ TO KEEP IT AWAY FROM THE CAMBODIAN MAINLAND AND TO ISOLATE THE AREA. DURING MAY 13 AND 14, AIR FORCE HELICOPTERS AND MARINE PLATOONS WERE BROUGHT INTO THE AREA AND POSITIONED SO AS TO BE AVAILABLE IN THE EVENT DIPLOMATIC EFFORTS TO SECURE THE RELEASE OF THE VESSEL AND CREW FAILED. AT SOME POINT DURING THIS PERIOD, THE CREW MEMBERS WERE APPARENTLY TAKEN TO THE MAINLAND. THE MILITARY OPERATION TO RECOVER THE MAYAGUEZ AND ITS CREW BEGAN AT 3:50 P.M. ON MAY 14, AT WHICH TIME THE MARINES WERE ORDERED TO SEIZE THE MAYAGUEZ AND TO COMMENCE A HELICOPTER ASSAULT ON KAOH TANG ISLAND, WHERE IT WAS STILL BELIEVED THE CREW MEMBERS WERE BEING HELD. WHEN THE MARINES REACHED THE MAYAGUEZ VIA THE USS HOLT, THEY FOUND NO ONE ON BOARD, AND REPORTED THE VESSEL IN UNITED STATES CONTROL AT APPROXIMATELY 9 P.M.

THE BOMBING OF SELECTED TARGETS AT REAM AND KOMPONG SOM (SIHANOUKVILLE) IS DESCRIBED IN THE DEFENSE DEPARTMENT CHRONOLOGY AS FOLLOWS:

CINCPAC HAD BEEN DIRECTED AT 5:18 PM ON 14 MAY TO COMMENCE CYCLIC STRIKE OPERATIONS FROM THE AIRCRAFT CARRIER USS CORAL SEA ON MILITARY TARGETS IN THE KOMPONG SOM-REAM COMPLEX WITH FIRST TIME ON TARGET SPECIFIED AT 8:45 PM TO COINCIDE WITH THE ESTIMATED TIME OF RECAPTURE OF MAYAGUEZ. THE FIRST CYCLE WAS TO BE ARMED RECONNAISSANCE WITH CAMBODIAN AIRCRAFT AND MILITARY WATERCRAFT AS PRINCIPAL TARGETS. SUBSEQUENT FLIGHTS WERE TO MAKE MAXIMUM USE OF PRECISION GUIDED MUNITIONS TO ATTACK TARGETS OF MILITARY SIGNIFICANCE. THE TACTICAL AIR ARMED RECONNAISSANCE CYCLE DID NOT EXPEND ORDNANCE. THE SECOND CYCLE STRUCK THE REAM AIRFIELD. THE RUNWAY WAS CRATERED, NUMEROUS AIRCRAFT WERE DESTROYED OR DAMAGED, AND THE HANGARS WERE BADLY DAMAGED. THE THIRD AND FINAL CYCLE STRUCK THE NAVAL BASE AT REAM DAMAGING THE BARRACKS AREA. NAVAL FACILITIES IN KOMPONG SOM, INCLUDING A POL STORAGE AREA, WERE ALSO STRUCK DURING THE CYCLE, DAMAGING TWO WAREHOUSES IN THE PORT AND SCORING A DIRECT HIT ON A LARGE BUILDING IN THE MARSHALLING YARD. THIS BOMB DAMAGE ASSESSMENT IS BASED ON PILOT REPORTS AND SOME PHOTOGRAPHY. IN ALL, 15 ATTACK SORTIES EXPENDED MUNITIONS. OPERATIONS AGAINST THE MAINLAND TERMINATED ABOUT MIDNIGHT ON 14 MAY.

THESE OPERATIONS AGAINST THE MAINLAND WERE DESIGNED TO ENSURE THE ISLAND WAS NOT REINFORCED, TO PUT PRESSURE ON THE CAMBODIANS TO RELEASE THE CREW AND TO ENSURE THE SAFE WITHDRAWAL OF THE MARINE GROUND SUPPORT FORCE.

A CAMBODIAN BROADCAST AT ABOUT 7:15 P.M., MAY 14, HAD INDICATED THAT THE GOVERNMENT INTENDED TO RELEASE THE VESSEL AT SOME FUTURE TIME. SPECIFIC MENTION WAS MADE OF THE CREW, HOWEVER, AND THE BROADCAST WAS NOT DEEMED SUFFICIENTLY DEFINITE TO WARRANT A CEASE-FIRE WHICH WOULD RISK THE CREW AND THE MARINES WHO HAD ALREADY LANDED ON KAOH TANG ISLAND.

AT 10:23 P.M., A FISHING VESSEL WAS REPORTED APPROACHING KAOH TANG FLYING A WHITE FLAG. THE FISHING VESSEL CARRIED THE MAYAGUEZ CREW MEMBERS. THE DESTROYER USS WILSON PICKED UP THE CREW MEMBERS AND REPORTED AT ABOUT 11:15 P.M. THAT THE ENTIRE CREW WAS ACCOUNTED FOR. AT ABOUT MIDNIGHT, THE ORDER WAS GIVEN TO CEASE ALL OFFENSIVE OPERATIONS AND TO COMMENCE WITHDRAWAL. ACTIVITIES ON THE MORNING OF MAY 15 CENTERED AROUND REMOVING THE MARINES FROM KAOH TANG. ALL MARINES WERE FINALLY CLEARED FROM THE ISLAND BY ABOUT 9:15 A.M. ON MAY 15.

THE DEFENSE DEPARTMENT CHRONOLOGY DOES NOT GIVE THE PRECISE TIMES OF THE BOMBING STRIKES AT REAM AND KOMPONG SOM. HOWEVER, THE NATURE AND TIMING OF THE BOMBING RAIDS WAS DISCUSSED IN MAY 14-15, 1975, HEARINGS BEFORE THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS AND ITS SUBCOMMITTEE ON INTERNATIONAL POLITICAL AFFAIRS ON SEIZURE OF THE MAYAGUEZ, 94TH CONG., 1ST SESS. (PART I). THE FOLLOWING EXCHANGES BETWEEN COMMITTEE MEMBERS AND DEFENSE DEPARTMENT WITNESSES DURING THE MAY 15 HEARING ARE PARTICULARLY RELEVANT:

COLONEL FINKELSTEIN. * * * AT 11:15 P.M. WE WERE SURE WE HAD THE CREW BACK. THE LAST AIR STRIKE THAT WENT INTO THE MAINLAND OCCURRED WITHIN A HALF HOUR OF THAT, SIR. I DON'T HAVE THE EXACT TIME.

MR. DU PONT. THE AIR STRIKE WOULD HAVE BEEN ROUGHLY 11:45 P.M.?

COLONEL FINKELSTEIN. I THINK THAT IS CORRECT, SIR.

MR. DU PONT. WHEN WAS THE FIRST AIR STRIKE?

COLONEL FINKELSTEIN. THE FIRST AIR STRIKE ON THE MAINLAND OCCURRED AT ABOUT 11 P.M. SOME 15 MINUTES OR 20 MINUTES BEFORE WE KNEW WE HAD THE CREW. THAT WAS ON THE REAM AIRFIELD.

MR. DU PONT. SO, WE ENGAGED IN AIR STRIKES ON THE MAINLAND FOR ROUGHLY 45 MINUTES.

COLONEL FINKELSTEIN. I THINK THAT IS CORRECT, SIR.

ONE OF THE PROBLEMS IS THAT IN THE EARLY REPORTING, RADIO REPORTS, THIS SORT OF THING, YOU REALLY DON'T KNOW WHAT THE TIME LAG IS BETWEEN THE ACTUAL OCCURRENCE AND THE REPORT. THE TIMES I AM GIVING YOU ARE REPORTING TIMES.

MR. DU PONT. CAN YOU TELL US ROUGHLY WHEN THE DECISION WAS MADE TO ENGAGE IN AIR STRIKES ON THE MAINLAND?

MR. MAURY. ALL OF THOSE DECISIONS, SIR, WERE MADE AS I UNDERSTAND IT DURING THE COURSE OF THE NATIONAL SECURITY COUNCIL MEETING YESTERDAY AFTERNOON, WHICH LASTED APPROXIMATELY 3:30 P.M., I THINK, UNTIL APPROXIMATELY 6 P.M.

MR. DU PONT. BY 6 P.M. A DECISION HAD BEEN MADE TO RETRIEVE THE VESSEL, RETRIEVE THE CREW, AND USE MILITARY FORCE TO DO SO, AND TO MAKE STRIKES ON THE MAINLAND IN SUPPORT OF THAT.

MR. MAURY. YES, SIR.

MR. DU PONT. AND BETWEEN 6 AND THESE OTHER EVENTS THOSE ORDERS WERE BEING PUT INTO EFFECT?

MR. MAURY. YES, SIR. HEARINGS AT 40-41.

MR. BIESTER. AS WE WENT THROUGH THE TIME SEQUENCES WITH RESPECT TO THE WHITE FLAG, THE FIRST AIR STRIKE AT REAM, THE SECURING OF THE CREW, AND THE LAST AIR STRIKE, EVEN AT THAT TIME WE STILL HAD MARINES DID WE NOT ON THAT ISLAND UNDER FIRE?

COLONEL FINKELSTEIN. SIR, WE HAD MARINES ON THAT ISLAND, UNDER FIRE, UNTIL APPROXIMATELY 9:30 THIS MORNING (MAY 15).

MR. BIESTER. WHILE THOSE TIME SEQUENCES ARE IMPORTANT IN TERMS OF THE CREW, THE AIR STRIKES HAD SOME VALIDITY IN TERMS OF THE SECURITY, AS YOU SAW IT, OF THE MARINES WHO WERE THEN UNDER FIRE ON THE ISLAND, IS THAT CORRECT?

COLONEL FINKELSTEIN. THAT IS ABSOLUTELY CORRECT, SIR, EXCEPT MAYBE I WOULD USE A WORD OTHER THAN SOME.

MR. BIESTER. ALL RIGHT. THAT IS FAIR. SO THE FACT THAT THERE WERE AIR STRIKES AFTER THE CREW WAS SECURED DOES NOT INDICATE THAT IT WAS PUNITIVE IN NATURE?

COLONEL FINKELSTEIN. ABSOLUTELY, SIR. ID. AT 42-43.

MR. GILMAN. WHAT WAS THE MILITARY OBJECTIVE IN STRIKING THE MAINLAND?

COLONEL FINKELSTEIN. TO PRECLUDE REINFORCEMENT OF THE ISLAND. PRECLUDE LAUNCHING OF AIR STRIKES AGAINST THE MARINES. TO ISOLATE NAVAL VESSELS IN THE AREA.

MR. GILMAN. WHAT WAS THE MILITARY TARGET?

COLONEL FINKELSTEIN. REAM AIRFIELD AND THE KOMPONG SOM NAVAL FACILITY. THERE WERE 17 AIRCRAFT DAMAGED OR DESTROYED AT REAM, SIR, AND CONSIDERABLE OTHER REASONABLY LETHAL MATERIAL SO FAR AS THE MARINES ON THAT ISLAND WERE CONCERNED.

MR. GILMAN. WERE THEY AIRCRAFT THAT HAD POTENTIAL OF INTERFERING WITH THE OPERATION?

COLONEL FINKELSTEIN. YES, SIR, TO THE BEST OF MY KNOWLEDGE AND BELIEF. ID. AT 51.

WE ARE NOW IN THE PROCESS OF CONDUCTING AN INDEPENDENT EVALUATION OF THE ACCURACY OF BOTH THE DEFENSE DEPARTMENT CHRONOLOGY AND THE STATEMENTS MADE IN THE MAY 15 HEARINGS. ON THE BASIS OF OUR PRESENT INFORMATION, WE ARE NOT IN A POSITION TO CONCLUDE THAT THE BASIC MAYAGUEZ OPERATION WAS AN INVALID EXERCISE OF PRESIDENTIAL AUTHORITY TO PROTECT AMERICAN CITIZENS ABROAD, AND THAT IT WAS INCONSISTENT WITH THE FUNDING LIMITATION STATUTES. AS DISCUSSED PREVIOUSLY, WE DO BELIEVE THAT THE PRESIDENT MUST BE AFFORDED CONSIDERABLE DISCRETION IN THE ACTUAL CONDUCT OF SUCH AN OPERATION. HOWEVER, IF THE BOMBINGS HERE INVOLVED WERE PUNITIVE, I.E., NOT REASONABLY RELATED TO THE RESCUE OF THE MAYAGUEZ CREW OR TO THE PROTECTION OF U.S. FORCES USED IN THE RESCUE OPERATION, SUCH EXPENDITURE OF FUNDS WOULD APPEAR TO BE IN CONTRAVENTION OF THE SEVEN FUNDING LIMITATION STATUTES SPECIFICALLY PROHIBITING THE USE OF FUNDS FOR OFFENSIVE COMBAT ACTIVITY IN INDOCHINA. IN YOUR LETTERS AND IN MEETINGS WITH A MEMBER OF YOUR STAFF, WE WERE ALSO ASKED TO ADDRESS THE ISSUE OF THE EXTENT OF THE PRESIDENT'S COMPLIANCE WITH THE WAR POWERS RESOLUTION DURING THE RESCUE MISSIONS. THE FOLLOWING DISCUSSION WILL CENTER ON WHETHER PRESIDENT FORD COMPLIED WITH THE VARIOUS REQUIREMENTS OF SECTIONS 3 AND 4 OF THE RESOLUTION (50 U.S.C. 1543, 1544).

SECTION 3 REQUIRES THE PRESIDENT TO CONSULT WITH CONGRESS BEFORE AND AFTER THE INTRODUCTION OF UNITED STATES ARMED FORCES INTO HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES. THE LEGISLATIVE HISTORY OF THIS PROVISION WAS PRESENTED BY REPRESENTATIVE SEIBERLING DURING THE JUNE 4 HEARING AT P. 38:

THE CONSULTATION PROVISION IN THE ORIGINAL HOUSE BILL (H.J. RES. 542) STATED THAT "THE PRESIDENT IN EVERY POSSIBLE INSTANCE SHALL CONSULT WITH THE LEADERSHIP AND APPROPRIATE COMMITTEES OF THE CONGRESS BEFORE COMMITTING UNITED STATES ARMED FORCES TO HOSTILITIES OR TO SITUATIONS WHERE HOSTILITIES MAY BE IMMINENT * * * " IN THE ACCOMPANYING REPORT (H.R. REPT. 93-387) (IT) WAS MADE CLEAR THAT CONSULTATION WAS NOT "SYNONYMOUS WITH MERELY BEING INFORMED." RATHER, THE REPORT SAID, "CONSULTATION IN THIS PROVISION MEANS THAT A DECISION IS PENDING ON A PROBLEM AND THAT MEMBERS OF CONGRESS ARE BEING ASKED BY THE PRESIDENT FOR THEIR ADVICE AND OPINIONS, AND IN APPROPRIATE CIRCUMSTANCES THEIR APPROVAL OF ACTION CONTEMPLATED. FURTHERMORE, FOR CONSULTATION TO BE MEANINGFUL, THE PRESIDENT HIMSELF MUST PARTICIPATE AND ALL INFORMATION RELEVANT TO THE SITUATION MUST BE MADE AVAILABLE." IN ADDITION, THE REPORT SAID, "THE USE OF THE WORD 'EVERY' REFLECTS THE COMMITTEE'S BELIEF THAT SUCH CONSULTATION PRIOR TO THE COMMITMENT OF ARMED FORCES SHOULD BE INCLUSIVE."

HISTORY OF CONSULTATION PROVISION

THERE WAS NO DEBATE ON THIS CONSULTATION PROVISION DURING HOUSE CONSIDERATION OF HOUSE JOINT RESOLUTION 542; IT WAS NOT A MATTER OF CONTENTION. HOWEVER, IT APPEARS TO HAVE BEEN UNDERSTOOD BY ALL. THE DISTINGUISHED MAJORITY LEADER, MR. O'NEILL, SUMMED UP THE PURPOSE OF THE RESOLUTION WHEN HE SAID: "ALL THIS RESOLUTION ASKS IS THAT CONGRESS, THE VOICE OF THE AMERICAN PEOPLE, BE CONSULTED PRIOR TO THE COMMITMENT OF U.S. ARMED FORCES TO HOSTILITIES ABROAD."

THE SENATE BILL, S. 440, DID NOT CONTAIN A CONSULTATION PROVISION AND THERE WAS NO DISCUSSION OF THE ISSUE IN THE SENATE DEBATE, BUT WHEN THE CONFEREES REPORTED THE BILL IT CONTAINED A CONSULTATION PROVISION ALMOST IDENTICAL TO THE HOUSE VERSION, THE ONLY SUBSTANTIVE DIFFERENCE BEING THE NAMING OF "CONGRESS" RATHER THAN THE "LEADERSHIP AND APPROPRIATE COMMITTEES OF CONGRESS" AS THE ONES WITH WHOM THE PRESIDENT MUST CONSULT. NOW IT WAS SPECIFICALLY MENTIONED TWICE IN THE SENATE DEBATE ON THE CONFERENCE REPORT.

SENATOR FULBRIGHT, WHO WAS MANAGING THE CONFERENCE REPORT, CALLED THE CONSULTATION PROVISION OF THE COMPROMISE "THE MOST FUNDAMENTALLY IMPORTANT OF ALL" IN THE BILL EVEN THOUGH THE ORIGINAL SENATE BILL HAD NOT CONTAINED ANY SUCH PROVISION.

SENATOR JACOB JAVITS, ONE OF THE PRINCIPAL AUTHORS OF THE WAR POWERS RESOLUTION IN THE SENATE, ELABORATED ON THE CONFERENCE REPORT LANGUAGE AS TO WHAT THE CONSULTATION PROVISION MEANT. JAVITS SAID THE PROVISION "IS TO BE READ AS MAXIMAL RATHER THAN MINIMAL. THE PRESIDENT IS OBLIGED BY LAW TO CONSULT BEFORE THE INTRODUCTION OF FORCES INTO HOSTILITIES." WENT ON TO NOTE THAT THE PROVISION MADE ALLOWANCES FOR INSTANCES "OF SUCH GREAT SUDDENNESS IN WHICH IT IS NOT POSSIBLE TO CONSULT IN ADVANCE."

CONSULTATIVE PROVISION SEEN AS CONSTRUCTIVE

AGAIN THERE WAS NO DEBATE ON THE CONSULTATION PROVISION WHEN THE CONFERENCE REPORT CAME BEFORE THE HOUSE NOR WAS THERE ANY DEBATE ON THIS PROVISION DURING CONSIDERATION OF THE PRESIDENT'S VETO.

AS A FINAL NOTE, MR. CHAIRMAN, IT IS INTERESTING TO NOTE THAT IN HIS VETO MESSAGE PRESIDENT NIXON SINGLED OUT THE CONSULTATION PROVISION AS BEING ONE OF THE FEW CONSTRUCTIVE PROVISIONS IN THE BILL, TO USE HIS WORDS.

MR. CHAIRMAN, I DON'T THINK THE LANGUAGE COULD BE ANY CLEARER, BUT IF THERE IS ANY AMBIGUITY IN THE WORDING OF THE RESOLUTION, THE LEGISLATIVE HISTORY CERTAINLY CLEARS IT UP. THE ONLY INSTANCE IN WHICH CONGRESS SANCTIONS ACTION WITHOUT PRIOR CONSULTATION IS IN WHAT SENATOR JAVITS CALLED AN INSTANCE "OF SUCH GREAT SUDDENNESS * * * IT IS NOT POSSIBLE TO CONSULT IN ADVANCE."

SECTION 4(A) REQUIRES THE PRESIDENT, IN THE ABSENCE OF A DECLARATION OF WAR, TO REPORT TO THE CONGRESS WITHIN 48 HOURS THE FACTS, LEGAL BASIS, AND ESTIMATED DURATION OF ANY INTRODUCTION OF UNITED STATES FORCES--

(1) INTO HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES;

(2) INTO THE TERRITORY, AIRSPACE OR WATERS OF A FOREIGN NATION, WHILE EQUIPPED FOR COMBAT, EXCEPT FOR DEPLOYMENTS WHICH RELATE SOLELY TO SUPPLY, REPLACEMENT, REPAIR, OR TRAINING OF SUCH FORCES; OR

(3) IN NUMBERS WHICH SUBSTANTIALLY ENLARGE UNITED STATES ARMED FORCES EQUIPPED FOR COMBAT ALREADY LOCATED IN A FOREIGN NATION * * * .

SECTION 5 ESTABLISHES PROCEDURES FOR THE SUBMISSION OF SUCH REPORTS AND CONGRESSIONAL ACTION THEREON. SUBSECTION 5(B), 50 U.S.C. 1544(B), PROVIDES THAT, WITHIN 60 DAYS AFTER A REPORT IS SUBMITTED (OR REQUIRED TO BE SUBMITTED) PURSUANT TO SECTION 4(A)(1), SUPRA, THE PRESIDENT SHALL TERMINATE THE USE OF UNITED STATES FORCES UNLESS THE CONGRESS (1) HAS DECLARED WAR OR HAS ENACTED A SPECIFIC AUTHORIZATION FOR SUCH USE OF FORCES, (2) HAS EXTENDED BY LAW THE 60-DAY PERIOD, OR (3) IS PHYSICALLY UNABLE TO MEET DUE TO ARMED ATTACK UPON THE UNITED STATES; OR UNLESS THE 60-DAY PERIOD IS EXTENDED FOR NOT MORE THAN AN ADDITIONAL 30 DAYS PURSUANT TO A PRESIDENTIAL DETERMINATION AND CERTIFICATION AS SPECIFIED IN SUBSECTION 5(B). UNDER SUBSECTION 5(C), 50 U.S.C. 1544(C), THE CONGRESS MAY AT ANY TIME DIRECT BY CONCURRENT RESOLUTION THE REMOVAL OF UNITED STATES FORCES FROM HOSTILITIES OUTSIDE THE UNITED STATES, ITS POSSESSIONS AND TERRITORIES WHICH ARE NOT SUPPORTED BY A DECLARATION OF WAR OR SPECIFIC STATUTORY AUTHORIZATION.

THE MAIN AREA OF DISAGREEMENT CONCERNING THE SECTION 3 CONSULTATION REQUIREMENT RELATES TO THE RESCUE OF THE CREW OF THE MAYAGUEZ. TESTIMONY DURING HEARINGS ON MAY 7TH CONCERNING CONSULTATION MR. LEIGH EXPRESSED THE ADMINISTRATION'S POSITION THAT:

* * * PRIOR CONSULTATION WITH CONGRESS IS CONTEMPLATED ONLY IN CASES WHICH WOULD FALL WITHIN SECTION 4(A)(1) WHEN ARMED FORCES HAVE BEEN INTRODUCED INTO HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES. NO SUCH PRIOR CONSULTATION IS CONTEMPLATED UNDER SECTION 3 WHEN THE ACTION TO BE REPORTED UNDER SECTION 4(A) FITS WITHIN SUBPARAGRAPHS 2 AND 3. HEARINGS, P. 7.

SINCE THE RESCUE OF THE MAYAGUEZ CLEARLY FELL WITHIN SUBSECTION 4(A)(1) OF THE RESOLUTION (50 U.S.C. 1543(A)(1)), THE QUESTION BECOMES A FACTUAL ONE AS TO THE SUBSTANCE AND TIMING OF ACTIONS WHICH THE PRESIDENT CONSIDERED AS COMPLYING WITH THE REQUIREMENTS OF SECTION 3. CONGRESSIONAL INTENT IS CLEAR THAT THE PRESIDENT IS TO DO MORE THAN INFORM CONGRESS OF DECISIONS HE HAS ALREADY MADE; HE IS EXCUSED FROM PRIOR CONSULTATION ONLY IN INSTANCES OF "GREAT SUDDENNESS;" AND CONSULTATION IS TO BE AN ONGOING PROCESS. THERE IS SOME EVIDENCE IN THE JUNE 4 HEARINGS THAT THE PRESIDENT MERELY INFORMED CONGRESS OF DECISIONS ALREADY MADE, EVEN THOUGH THERE WAS SUFFICIENT TIME TO CONSULT IN A MORE MEANINGFUL MANNER. HEARINGS, PP. 47- 51. HOWEVER, WITHOUT MORE DEFINITIVE GUIDELINES THAN ARE PRESENT IN SECTION 3 OR THE LEGISLATIVE HISTORY OF THAT SECTION, WE CANNOT SAY THAT, UNDER THE CIRCUMSTANCES SURROUNDING THE RESCUE OF THE MAYAGUEZ CREW, THE PRESIDENT FAILED TO COMPLY WITH SECTION 3 OF THE WAR POWERS RESOLUTION.

THERE IS NO DISPUTE THAT THE PRESIDENT COMPLIED WITH THE SECTION 4 REPORTING REQUIREMENTS ON EACH OF THE FOUR OCCASIONS WHERE U.S. ARMED FORCES WERE INTRODUCED IN SOUTHEAST ASIA (DANANG SEALIFT ON APRIL 4; CAMBODIA EVACUATION ON APRIL 12; SAIGON EVACUATION ON APRIL 30; AND RESCUE OF THE CREW OF THE MAYAGUEZ ON MAY 15). HOWEVER, IN THE FIRST TWO REPORTS AND THE LAST THE PRESIDENT SPECIFIED WHICH OF THE SUBPARAGRAPHS OF SUBSECTION 4(A) PRECIPITATED THE INTRODUCTION OF THE TROOPS, WHEREAS IN THE REPORT CONCERNING THE APRIL 30 EVACUATION OF SAIGON, THE PRESIDENT MERELY REFERRED TO SECTION 4 AS A WHOLE.

WHETHER ARMED FORCES WERE INTRODUCED AS A RESULT OF SITUATIONS DESCRIBED IN SUBPARAGRAPHS (1), (2), OR (3) OF SUBSECTION 4(A) IS RELEVANT BECAUSE OF THE 60-DAY LIMITATION OF THE DURATION OF THE INVOLVEMENT PROVIDED BY SUBSECTION 5(B), IN THE ABSENCE OF CONGRESSIONAL ACTION CONTEMPLATED IN THE REST OF SECTION 5. HOWEVER, IT SHOULD BE NOTED THAT THERE IS NO PROVISION IN THE WAR POWERS RESOLUTION EXPRESSLY REQUIRING THE PRESIDENT TO SPECIFY WHICH TYPE OF SITUATION HAS PRECIPITATED THE INVOLVEMENT OF THE ARMED FORCES. MOREOVER, WHETHER OR NOT THE PRESIDENT LABELS THE REPORTS UNDER A SPECIFIC SUBPARAGRAPH OF SECTION 4(A) IS NOT IMPORTANT SINCE THE FINAL DECISION OF WHAT TO DO WITH THE REPORTS AND WHETHER THEY INITIATE SECTION 5 ACTION IS UP TO CONGRESS. ACCORDINGLY, IT WOULD APPEAR THAT THE PRESIDENT COMPLIED WITH THE REPORTING REQUIREMENTS OF SECTION 4 OF THE WAR POWERS RESOLUTION.

WE TRUST THE INFORMATION PRESENTED WILL BE OF ASSISTANCE TO YOU.

/0/ THIS MEMORANDUM WAS SUBMITTED IN CONNECTION WITH THE RECENT HEARINGS BEFORE THE SUBCOMMITTEE ON INTERNATIONAL SECURITY AND SCIENTIFIC AFFAIRS OF THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS CONCERNING THE WAR POWERS RESOLUTION, INFRA. IT IS INTERESTING TO NOTE THAT THE PASSAGE FROM PRESIDENT TAFT'S BOOK QUOTED IN THE MEMORANDUM GOES ON TO READ:

IN PRACTICE THE USE OF THE NAVAL MARINES FOR SUCH PURPOSE (TO RESCUE AMERICANS) HAS BECOME SO COMMON THAT THEIR LANDING IS TREATED AS A MERE LOCAL POLICE MEASURE, WHEREAS IF TROOPS OF THE REGULAR ARMY ARE USED FOR SUCH A PURPOSE, IT SEEMS TO TAKE ON THE COLOR OF AN ACT OF WAR.