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054559 U.S. POLICY AND PROGRAMS IN
CAMBODIA
PERIODICAL FILE UNIV, CAUFORMIA
IMDOCHINA ARCHIVE e~RKE~£V, CALIFORMIA
HEARINGS BEFORE THE
SUBCOMMITTEE ON ASIAN AND P ACIFIC AFFAIRS
OF THE
COMMITTEE ON FOREIGN AFFAlRS HOUSE OF REPRESENTATIVES
97-471
NINETY-THIRD CONGRESS
FIRST SESSION
MAY 9, 10; JUNE 6, 7, 1973
Printed for the use of the Committee on Foreign AfEairs
.FROMTI-tE LibRARyof
Douglas Pike
u.s. GOVERNMENT PRINTING OFFICE
WASHINGTON: 1973
cmBIITTEE ON FOREIGK AFFAIRS
THO:\IAS E. )10RGAX, PE'Ilosylvanill, rhairman
CLEMENT J. ZABLOCKI, Wis('oDsin W.iYXE L. HAYS, Ohio L. H. FOUNT~-UN, :'-l'ortb Carolina DA:-:TE B. FAHCELL, Florida CHARLES C. DIGGS. JR., J.1iciligan ROBERT X C. NIX, Pl'nIll>~'ll"ania DOX_'!.LD )1. FRASER, :\Iinllesota RE:\'J)L~Il~ S. ROSENTHAL. New York ,TOHX C. CrLYER. l(n"<a LEE H. HA1[JLTON, Indiana ABRAIL>"::U K.\ZE.'\, .JR., Texas LERTER L. WOLFF. New York J()X_-\TH.\~ B. BI~'GHA)L ~ew York GrR YATRO~, Pennsylvnnia ROY A. TAYLOR, :"\orth Carolina JOH~ W. D_-\YI8, Georgia OGDEN R. TIErn, "'f"" Y~)rk MICH.AEL H.iRRIXGTOX, ),[as~a(:hul>ett" LEO J. RYA~, California CHARLES WIL~OX, Texas DONALD W. RIEGLE. JR .• )Iiclligan
'VILJ,IA)I 8-. ":\U.ILLIARD, California PETER H. B. FRELI::'\GR"cYSEX. XE'W JE'r~E'Y WILLIAM S. BROO)fFIRLD, "Michigan H. R. GROSS, Iowa I::DWARD .J. DERWIKSKI. Illinoi8 VER:\'O:-{ W. TJi()}l::-;OX, Wi8consin PA'LI. Fe~DLEY, Illinois JORX H. BUCHAKAX. JR., c\labama J. HBRBER"l' RL"RKE. Florida GFY YAXDEH JA(;T. "\Ocldgan ROBERT H. ~TEELE, ConoE'cticut PIERRE ~. nIl l'OXT, Delaware CH~-\RLEs:. W. WH.\LE:S . .Til., Ohio ROBERT B. (B(JR) :U_-\THIAS. California ED'YAHD G. BIESTER. JR., PeIlIl~ylvaniQ LARRY WI;\K •. JR., Kansas nr:.\.J.\.\IL' .\. GIL:\L\X. ),'"w .... ork TEX),'YSO),' GUYER, Ohio
){.-l.RL4.:S A. CZARXECKI, ellie! oj 8tajJ
SlTBCOM~fITTEE ON ASIAN AND PACIFIC ..AFTAIRS
ROBERT X C. KIX, PE'nD~yl,"anla, Chairman
LEE H. HAMILTON. Indiana LESTER L. WOLFF, New York JOHN W. DA VIS, Georgia ROY A. TAYLOR, XOl'th Carolina LEO J. RYAN, California DO~ALD W. RIEGLE, JR., Micbigan
WILLIAM S. BROO)'fFIELD, )'I1cblgan VERXO:-{ W. TH(nr~OX, W18comin J. HERBERT BrRKE, Florida PIERRE S. D"C" PO:-{T, Delaware TEN:'oITSON GUYER, Ohio
THOMA.S R. KENNEDY, Svbcommittee Staff Consultant DoNNA GAIL WYNN, Btat! Assistant
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CONTENTS
LIST OF WITNESSES
Wednesday, May 9, 1973: HUillmel, Hon. Arthur W., .Jr., Deputy Actin,g AS:ili:-:tant Secretary for
East Asian and Pacinc Affnirs, Departnwnt of ~tx1te _____________ _ Doolin, Ih:,nlli~ J., Deputy Assistant ~e('rel<lry (If Defense (Interna-
tional t-'ecurity Affairs), Dt'pll'tlllent uf Defeme _________________ _ Brower, Charles. Acting Legal AdvisN. Department of Stutf' _______ _ Nooter, Robert H., Assistant Administrator, Agency for International
Development _________________________________________________ _
Miller. Arthur S., profe.ssor of con~titutionlillaw, Georg'e WdI'hington Cni,ersity, and consultant to Senator Sam En-in, Subcomittee on Consti tutional Righ tl'l __________________________________________ _
Thursday, }frry 10, 1973: Goldwater, Hon. Barry, a C.s. Senator from ArizOwL _____________ _ Bingham, Hon. Jonathlln B., a Representative in Congress from ~ew York _________________________________________________________ _
Ahzug, He,ll, Bella S., a Representative in Congress from ~Tew York __ :\ld~J()skey, HOD. Paul X., Jl'., a Repre"entative in Congress from
l'alif.)rnia ____________________________________________________ _
'V[!.I'nkp, Bon. Paul C .. fornwr A.""j;;fant Secretary for International ~t'curity Affaire;, De!Jartwellt of llefen;,;e ________________________ _
Cbaye:,;. Abram, professor Hf law, Haryard t.:niversity, former Legal AdYiser, Departmem of State __________________________________ _
WednE'"day, June 6, 1973: Adauls, Baumel A .. former elllployee of the Central Intelligence Agency
Puge
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41
52 70
76
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and experienced analyst in Southeast Asian Affairs______________ 87 Bennett, Han. Charles E .. a Representative in Congress from thl:'"
State of Florida________________________________________________ 86
Thursday, June 7, 1073: AJ.ams. Samuel A .. former f!IDployee of the Central Intelligence Agency
and experieneed :maly"t in ~ontheast Asian Affairs______________ 95 Hummel, HOll. ArthUr 1V., Jr., Acting Ai'sistant ~ecretary, Bureau of
East Asian and Pa('ific Affairs, Department of Statt'______________ 98 Nooter, lIon. Robert H., Assistant Administrator, Bureau for ~upport-
ing Assistanl'f'. AgPIlC: for Intprnational DevelopmenL___________ 107
::\IATERL\L S"CBJIITTED FOR THE RECORD
Letter from Semitor Bi1rry 8. Goldwater _____________________________ _ "A Cambodian Landscapt': Bomb Pits, Rubble, Ashes," by Sydney H,
S('lwIlilerg. :-lew York Time" _______________________________________ _ 111 Statement of Alfred D. White, Deputy Assistant Administrator, Bureau
for Asia, Agency for International Ve'-eloVmenL ____________________ _ llil
APPEXDIX
Article from ('ollllllf'ntary, ,Tuly 197~, er.titled "The Constitution and the War," by .Alexander)1. Bickf'L______________________________________ 117
Lf'tter ffl)ID Eugpne V. Rostow, profei'80r of law, Yale Univer:=;ity Law ~("h001 _______________________________________________________ __ _ 1 :2,1
Corrf'''pOndl'nce from Alfred P. Rubin. professor of la",.·, rnin>rsity (If Oro;<gon ___________________________________ . ___ ________ _______ __ _ __ _ 1~S
Pul)lkntion submitted hy Alfrpd P. Rurin, reprintf'(l from thE' Interllstional and Comparatin' Law Quarterly, .July H)71. entitled "~F,A'T'O :ind Ampri-can Legal OlJligations Concel'ning Laos and Call1bodia''_______________ 1.'::'2
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Letter from Charles B. Xutting, professor of law, University of California. Page Hastings College vf the La\y_______________________________________ 143
Letter from Dean Rusk, professor of law, "CniYersity of Georgia School of Law____________________________________________________________ 144 Letter from Clark ),1. Clifford, attorney ________________________________ 145 Letter from William 'V. Van Alstyne, professor of law__________________ 147 Letter from Richard B. Lillich, professor of law, University of Yirginia__ 148 U.S. Policy Toward Cambodia, April 197O--April 1973 :
Statements uy President Nixon, Dr. Henry Kissinger. and the Secretaries of State and Defense, a study done by .lfarjorie Niehaus, analyst in international affairs, Foreign Affairs Division, the Li4 brary of Congress, CongreSSional Research Service, April 25, 197:L_ 149
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U.S. POLICY A:\fD PROGRAMS I:\f CAJlIBODIA
WEDNESDAY. MAY 9, 1973
J-Iomm OF R.EPRESF.J'.."""TATIV'ES,
CO)DUTTEF.. O~- FnREIG~ AFFAIRS,
S"LBCO)OII1TEE OX ..::\ .. BIA~ .,um PACIFIC AFFAIR.:<, lV ashingion, D.O.
The. slll)('ommittee met at 10 :80 D..TIl. in room 22.55, Rayburn House Office. Building, lIon. Hobert X. C. Xix (chairman) presiding.
]\11'. K r:s. The' subcommittee \'Iill tome to ordeT. La5t, Satllrc1ay a J1(,\;~ item \vn::: buried in the back pages of the.
E\TE'niw! ~t::tr. Its SllhstnncC' "as tll:J.t briefings for new-smerl had been stopped- by Americull otl1c-ials at th~ n.'(lU~st of the C,ambodian Governme,nt lW('<i.ut:e reports hatllJecn pl'lIlted 111 tIll-c., An1E'neall pre8S about the Sl1lTC'nclcr of 580 Cambodian soldiers after 20 of their number had bC'f'n kil1e(l. Thi~ incident seems to describe the state of Cnn1bodian military
Inol'ale wIlDe their Gm-f'rnment is Hlluer attack by insurgents. In addltion~ it gi\'es us some idea of what the chances are· of the Cambodians driving- 'out of their countr~~ those Xorth Vietnam forces which are there in violation of the truce agl'E'pment. These ~~orth Vietnam forces suppcl~edly have. not. bl'f'n illyolved in the fighting around the. Capitol or other operations which are carried out by in:;:urgents.
For wen over :2 months American planes from Thailrrnd have been bombing insllrg-pnt forces. At. the time SO perc-t'nt of the bombing in Cambodia is done in support of the LOll Sol gOvernment. Calnbodian troops )von ~t ful nmec or hold erround without Anleriean air support. Ho~:tiJe troops arE' across the ~Ickong River from Phnom Penh,2 miles Irom the Capito!.
The refugee problem is so severe in Cmnbodia that the chairman of the Sf'11fLtr Refug-ees and Es('ape-t's Sllbeommittee estimates that half the. population of Carnboclia hern: be('ome. ref11gees in the last 3 years since the. fig:hting started. The Phnom Penh's population of 3 years ago of GOO,OOO has 8\\"01Ien to 1,500,000. Cambodia is apparently economicany prostrate.
As in all nations in serious trouble corrupt.ion plays a role. There were at le-ust. 100.000 phantom soldiers carried in Cambodian pay records. The. entire army is approximately 14-0.000 u('tive. men.
Insurgent Iorces number from .. 0,000 to GO,OOO. They are divided into numerous faction:;;, so much so it js claimed that the Lon Xol government calmot find :responsible indh-iduals to negotiate with. This has not. decreased their fight ing ability in comparison to the Cam-bodian Army. -
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It is fair to say that onr bombing is a crutch to the Cambodian Army but as such has not halted the enemy advance.
The cost of sueh bombing approaches exceeding- $-1% million a day on the ayera~e and hus been going 011 since February. These costs included gasoline and ammunition, of course. That. would bring total costs to over $250 nlillion.
'Yhile all of this is difficult enough we hayo the basic problem that the hombing is being done under a constitutional cloud ·which has not been diminished by offieial statements.
In this case none of the usual constitutional props exist for Presidential military action. That is~ American h'oops are not pre:3ent in the theater of operations. American liyE's and property arE' not in any serious or special danger. The Tonkin Gulf resolution wbich purported to authorize Presidential military action in Southeast A3ia wa.s repealed in 1071.
The SE~\TO agreement authorized consultation between member states. The remaining active goverrnnents in SEATO~ Thailand and thE> Philippines, hrl':e not asked for our a~sistance in Camhodia. Camhodia i3 a protocol state, not a member as such of SEATO and has prodaimerl its neutrality.
The tI"1WE' agn'en1Pnt itsel:£ makps provision for thC' enforcement of the tprms of tlw truce. These provi8iollS l'Pqllire tlllall~JllOnS action even to tnke up problems for investigation-in my opinion trui~' a df'ad end at work
Therf' is in fact no document that we can poillt .~() which authoi'izf's military ftc-tion by the President to enforce the Truce agreement. 'Ve mllst find out if there are secret agniemellts with t1w ellenn-o or jf the tnw agreenwnt is not our ... ,-hole '-1lnderstanding:. '\VE' m1lst lpnrn the Presidenf~ authorit~\' to carry out thi3 bombing action. If there are ill faC't!to strings which inhibit a President frum acting;n this situation, tller2 mav be no barriers to such action in the iuhlJ'f'. ('on,Q.Tf's~ may tlwn h{1.:n~ to act. and act as s\viftly as po~sibl£' to end what is cOl1'3idrreli by many as an intolerable situation.
L ?\m"V~' g'f'ntlemen, you are, welcomed to this subcommittee. ",Vill you say who 1"dshes to speak first.
STATE!JENT OF HON. ARTHUR W. HUMMEL, JR .• ACTING ASSISTANT SECRETARY FOR EAST ASIAN AND PACIFIC AFFAIRS. DEPARTMENT OF STATE
:\11'. Hu).nrEL. ~fr. Chairman) I ,yould lik\· to speak first. You haye introduted a very hrgp TIl1mhf'l' of tfll'icp and f1 number of
criticisms of the IChrnel' Goyernmellt. some of which "',8. I think. would likE' to deal with. ' .
~Ir. X lX. Do YOU have a statement? nir. }h::;:~DrET:. l\fr. Chairman. it wa3 my undprstanding that you
wished to hayf' our statements inserted in the record and llot neC'C'3sarily read becau3E' of press of time. L
)11'. X IX. That is correct, and without objection it is so ordert'd. )1r. lImL'fF.L. There is a statement from mvself and n statement
also by )fr. :\ootor of AID. . [Tlie written statements follow:]
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STATEMENT OF HON. ARTHUR. W. HUMMEL, JR., DEPUTY ASSISTANT SECRETARY .FOI~ ASIA:.'l" Al'm PACIFIC AFFAIRS, DEPARTMENT OF STATE
)'Ir. Chairman and Members of this Committee: I am privileged to appear before this Committee to discuss Cambodia and the U.S. position with respect to the situation presently existing therein.
As you will recall, hostilities in Cambodia erupted in the spring of 1970 when tile Xorth '"ietrwmese/Viet Cong moved out of their sanctuaries within CamlHlilia along the South Vietnamese border and attacked to the west. At that time, the Khmer Government launched a world-wide appeal to all {J)l members for assil';ranee in defending itself against foreign aggression. A number of countries. includ.ing the C:::;" responded. Our primary interest at that time, which continues today, was based not only on assisting a small country to resist aggression but even more in the solution of the Vietnam war which, in turn, o'Verfiowed into neighlJoring states of Laos and Cambodia,
l::;ince that time, the military situation has ebbed and flowed with neither side achieving a clear-cut decision. Economically, the situation has been a serious one but has been kept under quite successful control through international. including U.S., and Khmer efforts which Mr. Koot.er herE:' ""ill dis('uss later. Politically, the country has altered its type of government from that of a kingdom to a republic. It has managed, despite the war, to hold presidential and Xational Assembly elections and has carried out its internation!ll obligation:; as a member of the L'N and its subsidiary organizations,
As has been the case militarily, so has the political situation varied from time to time. Most recently there has been increasing pressure on the government of the Khmer Republic because of alleged corruption. increasing inflation and the narrowing of governmental authority and leadership into a few hands. As a result, the Khmer government has in the past two weeks set up a "High Political Cotwcil" of four of the most prominent Khmer leaders, including President Lon :\1"01, and is in the process of forming a new cabinet. These moves are intended to broaden the base of the government, to rekindle popular support and eventuatly pro'Vide unity for negotiations aimed at achieving peace in Cambodia.
Conenruitant with tlle entry into e-ffec-t of the Vietnam ('ea~efire agreement, President Lon Nol announced a unilateral ceasetire. He did this deliberately in the hopes that it would produce a favorable rf'sp:)flse from the Khmer insurgents and the North Vietnamese/Viet Congo At Lon Nol's request, we also ceased all combat air operations. Regrettably. after about a wf'ek, the enemy gave its response in rene\-ved attaeks which have raised the le\'el of military activity to its highest pitch ever. The Khmer government, therefore, reqU€8ted renewed L.S. air support which we have gi'Ven. As a result of the increased enemy attacks, the Khmer have suffered heavy casualties, induding civilian ones caused by indiscriminate rocketing. A recent example was the attack against the Phnom Penh suburb of Poehentong, reportedly by a North Vietnamese rocket team, which caused 19 dead and 02 wounded. The Khmer government has al~o attempted to establish contacts with local insnrgent leaders, h<lS publicly offered amnesty and allud(~d to further conce!'(sions once negotiations Wf!re started. Here again, the enemy response has been negative and has included threats of death against the Khmer leaderl'hip.
:Many questions have been asked in recent weeks concerning the US role in this country and the lleed for our interest in it. As the Secretary.of State and othE:,r~--K0vernment _lea9-R.~,s. h_a Y~Q.~arl~ . .l;wiI?-teiL9ut-, __ w~ l:!~lieve strongIY "that""t'E'e proble~~,9.!..!Il4o~J~~ as; ~lvh~~n2t!!g !.e~ol.v:.~q, unless peace is achieved in all tJu::.ee. Q.:f. jts COIUpopent,.,:rt Hl e'Viaent that ffie ceasefire agreement so long sought and at last achieved in Vietnam will be in jeopardy, if similar situations cannot be achieved in Laos and Cambodia. In the former, a ceasefire was reached a mnnth after that in Vietnam. However, Cambodia remains at war and our continued assistance to it is designed to nssist it to find a peace which will not only aIl0\" thf' Khmer to rf'-Rolyp its own problems bnt 'wiII IlrotE'Ct the Vietnam ceas('fire which offers an alternative to continued death and destruction for the South '-ietnamese.
).luch has been made of US bombing in Cambodia and particularly that its alleged indiscriminate ('haracter producf's massive civilian casualties. I believe that Mr. Doolin from the Department of Defense can better address himself to these questions. However. I "\vould point out that targets specifically do not in· elude populated areas and that the diligent questioning of refuge-es in Phnom Penh and othpr citips nearby by Embassy officers has. failed to turn up any evi·
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denee that us bombing has been solely or even significantly responsible for civilian casualties or refugees. This is Dot to say tbat there have been none, but I belieye they ba ve been minimal under the circumstances.
lir. Chairman, I have tried to trace a brief perspective of the 8irnation in Cambodia and to reply to a few of the doubts held by E.ome regarding US interests and activities in Cambodia. Our objectiye in CambDdia is to enhance the prospects that the Cambodians will negotiate a ceasefire and a return to peace as Ii solution to that war, as a vital part of the entire Indochina prohlem and as a contribution to regional stability and progress in Southeast Asia. OUf economic and military assistance is designed to this end.
STATE~fENT OF Hox. ROBERT H, NOOTEH, ASS:S1'A.I\T ADMINISTRATOR, BUREAu FOR
SUPf'ORTIXG ASSISTAXCE, AGESCY FOR I.:"iTEIC~ATION.-u. D£.ELOP:llEXT
:Mr, Chairman and ~lemb€'rs of this Committee: It is a prh-ilege to appear before yon to discu:;;:, our program in Cambodiu,
First of :111, I tllink it might be useful to gh'e you a brief summary of how the CCOllOlllie aid program in Cambodia bt'grrD in lfi7l.
In }Iarch of HJiO. following the dejlo::,iti')n of SibaDouk. the :\"orth Yie-tname;..:e ()penl'd hoo:tilitif's ::i~alnst the Camb:ldinn Go'-ernnwnt. Their enemy's lllilihlry ad ions seriol1!'ly affected t!.li.~ country',3. cnnHiwrce and. in the- summer of 1970, Cmn/.l()dia :'c;ked tll(' t'nite-d State:'; to re:-nme economic u.:'si:-:tan('~.
Priot' to the \Ye,r Cambodia "\":1:' in relati'i'ely good peonomie :,hllpe. Export earnings, together ·with toUt'ism. loans, antI aiel. 1Y;;'f(2- enough ttl lJa,\- for the country's imports of $-100 to ~120 million a year. Fflrf'ig.n exdta.ii,~e re"I?,Yf',S wert' about :j;H:-i TIliHion. By 1971. ho~yc\"!:r. fl..., a {'''ilSe-'jUUWE' of the '''<Lr. there wu:'\ a precipitous drOll in ('JlmllodL1's export ~arlJjll:!::::, Tb' GOYeI'nrnf'nt drew dil,Yll its forefi:m exchunge re."-er,e,;; in order tu finann' imllOl'ts and used UIJ its Ilrewar .stoclqlile of 0(1Ullnodfties,
,yith almost no f'xports, the country "liS unable to continue fin::mdng imports Deedc>d to . ..,nHflln the ('~onOIn~'. A~Tiullt ural lJt'lHllKtion, partitnlarly ricC', ff'll sharply hf'causE' of tel'ritorial l0s."-es D.11(1 labor shortage:::: resulting from th(' ruili· tnr,\' builfll1p. The nlfljor rul .. her pbnt:ltioD.s, CUr"laili'd or eea"ed oI,,?rati(lns. Inau,,trial pr()<ludion ali'o fell bl?{·mlse of raw material sbortages;, m8.npower dh-ersions, ,tIlll war daI1l:J.!;p. Tourism Tirtually dif'appenred,
At tbe same time rupid expanc;ion of tIle CaT:ibodian nl'm~d forees, which before 1970 was {lnly a 35,OOO-man lnrg'ely ('en:,mouirrl force, ana the bnrden of [trilled conflict resulted in a drastic inc'rf'aqv in Cambodian budget py!.enditures.
In formulating Our initial economic aid pl'cgraill. we analyzed a,aibble data, including prewar import pattern", military fflT('€ lewIs, a:Jd the impact of hosti1i· ties on agricultural and industrial Ilrodndioll and tran"port::ttion, Ba:,;pd on this analysis, we de,elolX'd an aid frame,Tork gt-'ared primarily to supplying commodity imports ncefJed to meet rea] resource nf't'ds rather tban to corn hat infla· tion. "'e decided that the numher of AID employees a<iminister'illg the program would he kept :"lIlalI; that we would not, at ]f'a'3t for the pn'sf'nt, initiate technical or capital assistance projects; that we would not have a separatE' AID mission in Phnom Penh; and that \Te would try to de,elop and maintain a procurement system that minimized the need for 'C.S, and. Cambodian Goyernment administra· ti'i.'E' cnntrols.
We asked Congress to appro.e Q $70 million Commodity Import Program in FY ]971. This program was initiHted in ::Uarch 11171. FollO\vin~ the advice of the International Monetary Fund the Camhodian Government acted courageou",ly to implf'llf'nt a number of important ~elf-help measures includin~ adoption of a flexible exchange rate system, simplificati(ln of tbe import licen,..;ing lleehanismf', increased import taxeo::, and higher intert'~"i rate.", ParaI!pl wit11 theo:e reforms, anel in an effort to reduce the continUing drnin on Camhmtian rf'f'ern'f;, we made a $20 million cash grant to the Camhodian GOYE'rnment in O('tober 1971. \\Te ba ve sInce replenisbed the Commodity Import Program from time to time with additional ref'iources.
Cambodia ha::; also received, unrif'r a PL 480 salE'S Jlrogfllm, substantial amounts of agrieultural commoditie:". induding ('ottnn, wheat, and rice. PL 480 sales will be about $30 million in FY 1973,
As part of the stabilization effort, a multi1ateral Exchange Support Fund of $8;) million was established in 1fl72 on thr ;).(l\"ice and with the Hf'"j,.:tance of the HIF. This Fund was e5tahlbhed in recognition of the fact that not aU of the
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country's foreign exchange needs could be met throngh the tied procurement procedures of the Comillo(}ity Import Program. DOllor contrihlltions are made available on an untied basis at a le,el worked out by the IMF. The Fund ha.:; been an effective lllechanbrn for enabling Cambodia to secure outside assistance in helping to meet part of the l'ountry'~ foreign exchange llPed..". Contributors inelude Japan. Anstralia, the ITnited Kingdom, Tbailand, Ke\v Zealand, and )1aluysia. besides the United States and Cambodia itself.
X(J\v, having said that, what bat; our aid vrogram accomrJlished? First, r.S. economic aid to Cambodia has been, and still i,.,. essential for the sllrviyal of the Cambodian economy in time of 'Tar. We finance food and other imports required to keep the economy gOing, some of which replace domestic lJl'oduction lost as a consequence of the war. Equally important. these imports are essential to fOTc· stall a serious deterioration in the living standard of the Cambodian people. Cambodia has never been a rich country, with prewar per capita income es,j· mated at $111, und without CS. a::;sit;tance the lot of the average Cambodian would haye been a sad one indee,d,
As U.S. and other economic aid programs han!" gotten underway, imports have resumed and are about $115 milUon annually, a le-vel which 8hould sustain tne economy. Foreign aid has financed only the iml)Ort needs, not the domestic bud.cet deficit.
In order to finance the budget for the expansion of its military forces, the Government has had to borrow from its Central Bank. The amount of such deficit financing which the Government has used for the military buildup has been greater than the stabilization impact of foreign aid. The country, as a consequence, has seen substantial monetary expansion and inflation. In 1971. monetary expansion was 50 percent, and clo'Se to that in 1972. Inflation has been somewbat erratic, prices rising early in the war during 1970, then laggin~ behind the rate of monetary increase, but again recently price increases ha1'e accelerated.
The Khmer Government's role in economic policy has always been of cardinal importance, Provision of economic assistance presupposed the Khmer Govern· ment would take the measures that were necessary to maximize the usefulness of that assistance and, in addition, use its own foreign resources as 'Well as seeking international support. Monetary and fiscal policies were to be the pri· mary tools for controlling the allocation of resources and the rate of inflation.
Given the situation it faced, the Cambodian Government has done well, particularly for a country which moved so swiftly from tranquillity to war. Tbe Khmer Government has generally followed a realistic exchange rate policy, even though that has required continuous devaluation as the rate of inflation continued,
Recently. we have also begun a program of direct assistance to refugees and war victims. Until 1972, Cambodia was able to meet the most pres~;ing needs of its refugees, most of whom found housing with -other members of their families or friends, and the Khmer Government did not seek additional outside aid. Last year, however, the continuation of hostilities led to an increasing number of person~ who were not able to find employment or otherwise provide for themselves, This was particularly true of the 10,000 persons in Government refugee camps, most of whom were women, children, and old people .
On August 10, 1972. the Cambodian Government first requested U.S. assist· anee to refugees. We dispatched a team to reV"iew the situation and to determine what forms of U.S. assistance would be the most helpful in keeping with U.S. policy and legislative re:-:traints re;mrding pnsonnel limitations. The team confirmed that there were real needs to be met, with the most urgent re(]nirement for relatively small amounts of assistance to those refu.e:ee f8milies living in mmps. The team re<'ommended that assistance be provided throug-h t~e united Nations or through private voluntary organizations in order to keep dIrect es. involvement to a minimum.
Sin("€ that time, AID has given several grants to private organizations interested in and able to assist Cambodia's refu~ees. The first of these grants, for $50,000, was mad!' in December 1972 to the Intern~tional Rerl Cr~ss (ICRC) to provide food. ('lothing, medical care. and other aSSIstance. In Apr'll, we gflV"e fln additional $100,000 to the leRG. More re('(>ntly. we made gr~nts for $500:000 each to the Catholic Relief Services (CRS) .and to .Coope~hve for Am(>l'ICan Relief Everywhere .(CARE). These grants wIll I?T?vule me~Ical (-"flre, food. a~· sisi:mce in resettlement, and, when security ('onditIons permIt, goods and credIt fa('ilitif'g to finance resumption of farm activities. . .
Regarding future aid requirements. the longer· term objectlv:", of U,S. pohcy is to -achieve a negotiated cease-fire and a return to peace. WhIle prospects for
6
peace are uncertain, it is the U,S. Go,ernment's hope and intention that a cpuse--fire will ue achieved and that soon onr assistance will be directed to a post-war situation. First priority will be relief for war-displaced persons. "\Ye will sf'ek, primarily through additional grants to private and international Ofganizations, to provide medical care, assistance in resettlement. food, credit facilities to finance resumption of farm operations, seeds and tools, and housing materials,
In terms of longer-range reconstruction and development requirements, the economic outlook for Cambodia is fair. lVith a settlelllf'nt or a sniJsiding of hostilities, commerce would resume its normal pattern and domestic production and exports should apIlroach prewar levels. Manpower would he released from military service and return to domestk agricultural and industrial pursuits. Cambodian agricultural exports should be reasonably competitive and commercially attractivE', and tourism to Angkor Wat should again become an important source of foreign exchange.
"lhtle the need for aid to unanee eS>lential consumption imprnts should gradually declinE'. there will be a requirement for extensive aid in the private sector to assist industry and in the lJuulic sedor to reMorf' transportation and infrastructure. Some of thi" aid should be forthcoming from international and regional aid organizations. Indeed, the international framework for jncrE'used assistance is already in place in the form of the Exchange Support Fund. There are also bilateral aid programs in Cambodia. Japan, for in;::tanee. has given subRtantial amounts of ri('e and humanitarian relif'f. principally through its Red Cross_ Other countries, the rro..~ Development Program, the Mekong Committee, and the Asian De\'elopment Bank are also helping Camhodia with technical assi"tance or loans.
It is our exppctation that these existing multilateral aid arran~ements can he expanded to assist in Cambodia's longer-range development. Other countries have indicated their desire to provide additional assistance, particularly in humanitarian and recon~tl'u('tion aid. The r.~. should !11~o stand prepared to provide aSl'l:1~tan('f' which will hf'lp <:amhodia mf)"VE' tflwnrrl e('(1n0mir "plf-I"ufficiency Whf'll pea('e 1i'l refitored there.
Attachments. 1. AID and PL 480 obligations for Cambodia, by fiscal year. 2. Contrihutions to 1973 Exchange Support Fund.
ATTACHMENT 1
Cambodia AID and PL 480 obligations Fiscal ye:lr 1971:
Reimbursable import agreemenL _______________________________ _ Commodity import program (eIP) _____________________________ _
Jfillion~
$20 50 ~~
Total S.A___________________________________________________ 70 Puhlic Law 480 1_______________________________________ ____________ 8. 5
Fiscal year 19-72: Ca"h grant ___________________________________________________ _ CIP _________________________________________________________ _
Subtotal ___________________________________________________ _ Technical support _________________________________________________ _
Total S.A __________________________________________________ _ Public Law 480 1 __________________________________________________ _
Fiscal year 1973 : CIP _________________________________________________________ _ FJ-xchange support fund ________________________________________ _ Refugees ____________________________________________________ _
Subtotal ___________________________________________________ _ Technical supporL ________________________________________________ _
Total S.A __________________________________________________ _ Public Law 480 1 __________________________________________________ _
1 Agreements.
==
20.000 16.502
36.502 .5S5
37.0R7 20.560
45.00 20.50
1.15
66.6" .60
tl7.25 25. 733
,
,
i
ATTACHMENT 2
Estimated c['ntribl/fio'tls tf) 1978 exchange support fuml
l'nited S tates _________________________________________________ _
Japan _______________________________________________________ _
}Lustralia ____________________________________________________ _
l'ni ted Kin~dom ______________________________________________ _
~ailand ____________________________________________________ _
~ ew Zealand _________________________________________________ _
l\Ialaysia _____________________________________________________ _
DIF COlli pensa tory Dra \ving ___________________________________ _
Khmer Republic _______________________________________________ _
T(;tal __________________________________________________ _
$17.500,000 I,OOU.OOO 1.000.000
"00. 000 250. noo 100.000
In. 000 7.560,000 1, ono, (100
35,000,000
~fr. XIX. IntrwlncE' the otbpl's at this time accompanying you.
::\11'. HV)'BfEL. I am Arthur IIumme,l~ Jr., Acting Assistant Secre
tary of the East As1.'t1l Bureau in the Department of State.
~rr. J)OOL1x. Dennis .T. Doolill~ Deputy Assistant Secretary of De
fpl:lse. Ea~i .. -\..sia and Pacific ~-\fi'airs. ~fr-. BROWER. ~Ir. Chairman. I am Charles ~. Bro\ver. I am a.eting
legal adyiser of the Department of State. ~Ir. :\IILLER. ~Ir. Chairman. I am Prof. Arthur S. Miller of the
Ge-orge. \Vashington University Law Cente-r. xII'. XOOTER. Rebert:'\. Xooter. Assistant Administrator for AID.
Mr. XIX. Thank you. . -Mr. Hummel. !lr. H-rJDrEL. As T WitS saying. :1\-11'. Chn.irman~ you have introduced
a large' l1Umtier of topic:;, a few of "hieh I would 1ikp to address at
this point and perhaps other witnesses would like to address others.
-You mentioned initially ~ sir~ that p~ess briefing-s by the American
Embassy of Arneric-an ne'T'spapermen In Phnom Penh ha-ve been sus
pended. This is not the case. The regular weekly scheduled briefings
thut were an unusual factor of the Embassy~s activities because they
verY seldom b!'ke pInce in other missions, have in fact be-en snspended,
bu( ll(~wspaperm('n aIT' rrgnlarly being TC"ceived in the American Em
bassy on an individual basis. There has not been a cutoff in the normal
and lr~rit}mate contads between . .American and othe,1' newspapermen
on the, one hand and Embassv officmls on tIle, other.
You mentioned, sir~ that the North Vietnamese are reporte,d not to
be invo],~ecl in the attacks in the Phnom Penh area. This, sir, is not
accurate. The recent rocketing of Pochentong Airfield, the conffilercial
and military airport at Phnom Penh. was eonducted bv a X orth
Vietnamese ~Rocket Unit and not so incidentally resulted ~in a large
number o:f civilian casualties recently. There are other Korth Vietnaln
units who man the artillery as ,yell as the rocket units. who are cadre
in thC'- I~hmel' insurgent groups, and who mall the logistics apparatus
that stretches all the way through Cambodia and to Vietnam ,yithout
which the insnrp:ents could not operate. You mentioned •. sir, that Cambodia has proclaimed its neutmlity.
You mentlOned thIS In the context of the SE_A .. TO agreement in Iyhicll
Ca~bodia has been listed as a protocol state. You are quite correct in
sayIng that. The previous Sihanouk Government of Cambodia an
nounce,d that it did not wish to have Cambodia cOIlBidered under any
SEATO umbrclla and Lon ~ol's present government. the KInner Re
public, also has made this plain as well. Ithat the Cambodians want is
8
neutrality and more specificallv a return to the terms of the 1934 Geneva accords that relate to all of Vietnam. and it is in this context that I would like to wind up my remarks. .
",Vhat we wish, what the United States wishes. what the American objectiye is in Cambodia is precisely to see the neutrality of Cambodia preserv('d, the ne,utrality that you mentionf'd and the. l1:utrality that all IChmer GOYf'l'nnwllts in l'ecpllt ypurs lwYt:' sought for, hopefully based on the 1954 accords. To "IT"ithhold ... \..merican assistance in terms of monev, in terms of military support which is thoroughly consonant with the terms of the. Yictnam agreement-to withhold this support would not of CQurse I'Psult in the neutrality that we all seek for Cambodia and in fact "Would reBult in just the re,rerse.
Our objectives are limited. ,Ye haye no commitme,nts to Cambodia, secret or othendse. \Ve are attempting to support the Cambodian Government in its own legitimate. aspirations and the legal rationale therefor has b(,(,ll given a nlHnOel' of times~ most I"ccf'ntly by the Secret.ary of State, for the American acti~.~ities. I cannot mysplf 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.
'Ve will not introduce ground forces into Cambodia; we have none there nmv. There is a ceiling~ leg-islatin-·ly applied~ of ZOO persons, American officials who may be in Cambodia at a.nv one time, and that ceiling is scrupulously observed. There are othe~ leg:islativ~e restrictions that arc also scrupulously ObEer\"ed against huyiug .A .. _Illerican ad\~isprs for Cambodian military units.
In summary, siI"~ 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 achie.vement 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 Yietnamese hands as a result of American inaction.
Mr. :'i',X. You say that our objectives arc limited. You will concede, I suppose, that we are spending S41/~ minion per day in these operations, will you not '?
Mr. HU;O.rEL. If I may, sir, I would like to ask :\1r. Doolin of the Defense Department to address that question.
STATEMENT OF DENNIS J. DOOLIN, DEPUTY ASSISTANT SECRETARY OF DEFENSE, EAST ASIAN AND PACIFIC AFFAIRS
:\1r. DOOLIS. Mr. Chairman, I have not divided it out on the daily basis but the cost of our bombing effort in Cambodia during the period .Tanuary 2·7 through April 30, of this year is S160 million.
~fr. NIX. The next question I would put. to yon, ~Ir. Hummel, is by what authority, constitutional or otherwise, are we taking the action that \yC are engaged in '1
l-Ir. HTTl\DfEL. If I lImy, Jir. 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.
•
•
9
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 ,,"ould be delighted if !'ou ,,"ould. l\fr. BROWER. 111'. Chairman. as we are all aware. there has been
much speculation in t.he, press, and much discussion hI Congress, with respect to the constitutional authority of the President of the enited States to authorize bombing and other air strikes in and over the territory of Cambodia. The definiti"e statement on this point by the administration was given by Secretary of State Rogers on April 30 as paTt of his te.stimany 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, ~:Ir. Chairman, I have a copy of the memoranuum available for that purpose.
~ll'. Krx. 'lrit.hout objection tllE' article referl'ed to may be made a part of the record at this point in the record.
[The material referred to follows:]
PRESIDENTIAL AUTHORITY To COKTINL""E U.S. AIR COMIL-\..T OPERATIOSS I:i C,AYBODIA
The purpose of tbi:,; lllemfJrHnrl11l11 if: to (li~l'll:"i; the President's leg-al authority to c011tillue "Lnited Stntp:-; air ('(Jlllhat (Operatiolls in Cambodia :--illce tlLf" condu~i()ll (If t.he Agrf'('lllf'llt on EIHlillg tbe \nlI' and Res[(,ring Peace in Yietnnm Oll .January 27, 19,3 and the compktjon OIl March 28, 1973 of the witbdrawal of "Lnited 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 8tates has pursued a combination of diplomatic and military efforts to bring allout a just peace in Vietnam. These efforts were successful in stre~othening the self-defense capabilities of the armed forces of the Republic of Vietnam and in bringing about serious negotiations whch cul~ minateu in thE' A~'Teement on Endiug the \Var and Restoring Peace in Vietnam. signed at Paris on January 27, 1973.1 This Agreeme-nt provided for a cease-fire in Vietnam, the return of prisoners. and the withdrawal of United States and allied armed forces from ~outh Vietnam within sixty days. The Agreement (in Article 20) l also required tbe witbdrawal of aU foreign armed forces from Laos and CamiJodia and obligated the parties to refrain from using the territory of Cambodia and Laos to ('ncroacb on the- sovereignty and security of other countries, to respect the neutrality of Cambodia and Laos, and to avoid any interferenc-e 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. BulleHn. Department of fltate, :1\'0. 1755, Feb. 12. 1973. p. 169. :.: '"(a) The partie~ particlpati[]g in the Paris Conference fln Vietnam shall strlctIv re_
SPI:'('t 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 Le. the independence. ~o ... ereignty. nnity, and territorial integrity of these countries.' 'l'he partles shall re~pect the neutrality of Cambodia and Laos.
"The partie!; 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 ~ecurity of one another and of other countrie5_
"ib) Foreign cou[]tric" shall rut an end to all military activities in Cambodia and Laos. totally withdraw from and refrain from reintroducing into these two countries troops, milHary 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 countrie~ without forei):;n interference.
"(d) The problems exi!;thig between the Indochinese countries shall be settled by the Inuochinese partie~ on the basis of respect for eacb other's independen{'f', sovereignty, and territorial integrity, and non-interference In ellch otber's internal affairs."
10
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 tjrne the Vietnam Agreement was concluded, the enited State" made clear to the North Vietnamese tbat the armed for('€'s of the Khmer Government would suspend all offensive operations and that the United ~tates aircraft supporting them W0111d do likewise. We stated tbut, if the other side r~ipr(){'ated, a de facto cease-fire would therehy be brought into force in Cambodia. Howe,er, VI-e also stated that, if the communist fOl'('e~ curried out attacks, government forces and United States air forces would ha,e to take necessary ('()lInter mE'llSnreS and tbat, in that event, we ·would continue to earry out air strikes in Cambodia as nece,,;sary until such time as a cease-fire could be brought into effect. These statements were based on our conviction tbat it was essential for Hanoi to umlprstand that continuance of the hostilities in Camhodia and Laos 'Tould not be in its intf-rest or in our interest and that comIlliance with Article 20 of the _,"gTE'ement would have to be reCiprocal.
It has recently been suggestcd that the ncithdrawal of all FS. armed forces from Routh Vietnam and the return of all V.S. prisoners bas created a fundamentally new situation in which new authority wu::;t be sought by tlle PresideIlt from tlw Congress to carry out air strikes in Cambodia.
Thp iRsue more accurately stated i:-. whether the constitutional authority of the Pre~ident to continue doing in Camuodia what the Cnited :5tates bas lawfuilS' b~n doing there expires with the withdrawal of r.~. arllletl forces from Vietnam and tbe retum of Ameriean prisoIl':Crs despite the fact that a cease-fire hilS nnt been achieved in Cambodia and North Vietnamese troops remain in Camuodia ('ontrary to clear provisions of the Agreement. In other words, the issue is not wbetber the President iliay do somethin,~ ne''\", but rather ,yhethf'r what he ha::=. been doing mllst automatkally stop, without regard to the con~e-quencE's ",ven though the Agreement is not being implemented by the other side.
The purposes of the rnited :-:;tates in Southeast ARia ba'\"e always inclulled seeking a settlement to the Vietnamese war that would permit the people of South Vietnam to exercise their right to ;;;elf-d€'termination. The President has made this clear 0;' many occa~i(Jlls. For' example, on 1Iay R. 1972. "\-vhen he made the propo~a~s thut formed the uasis for the ultimatelY successful neg(ltirrtions 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 Vidnalll; second, to protf"ct our remaining force-s in South Vietnam; and third, to obtain the release of our prisoners.3 jThe jOint communique issued by tbe President and Mr. Brezhnev in Moscow on .:1Iay 29, 19.2' in whleh the view of the 'Enited States was exprf>Ssed said that negotiations on the basis of the- Prt"sident's )!ay 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 bf' left for the South Viet~ namese people to decide for themselves, free from outside intl'rferenct'.
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 aU 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 21, 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 aU 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 a.ir 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 ot Article 20
3 Ru17('tin. Drpartment of Rtate, Yay 29. H172. p. 747. ~ Bulletin, Department of State, June 26, 19'12, p. 899.
11
Df the Agreement. Thus, U.S. air strikes in Cambodia do not represent a com· mitment 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 IS" orth 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 ~orth 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 inclu,<::ion in the Agreement of Article 20 requiring Xorth Yietnamese 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 Divisinn of the Congressional Research Service, arrived at the same general conclusion as to the President's Constitutional power.
One must recognize that the scupe and application of the President's powers under Article II of the Constitution are rarely fr€'e from dispute. Tinder the Gonstitution, the war powers are shared between the Executive and Leg;islative branches of the Government. The Congress is granted the powers "to prOTide for the common defense", "to declare war, grant letters of marque and reprisal, and make rules concerning captures (In 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 naTal forcf's", and "to make all laws whkh shall he necessary and proper for ('arrying into execution the foregoing PDwers .";; On the other hand, the Constitution proTidf's that "the executive power shall be vested in a President." that he "shall be COmmander-in-Chief of the army and Ill! TY of the 'Cnited States," and that "he shall take care that the laws Iw faithfully executed." e The President is also gh~en the authority to make treaties with the advice and consent of two thirds of the Renate, to appoint ambassadors with the ad.ice and consent of the Senate, and to receive amba~sadors and other public ministers.
The proceedings of the Federal Constitutional Con.ention in 1187 suggest thnt 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 fram€'rf:. of the Constitution "vould have been more precise, but it is submitted that there ,,,as; great wisdom in realizing the impossibility of foreseeing all contingenCies and in leaving ('onsiderable flexibility for the future play of political forces. The Constitution is a framework for democratic decbdon and action, not a source of ready-made answers to all questions, and that is one of its great 8trengthK
There is no question but that Congress should play an important role in decisions involving the use of armed forces abroad. With respect tn the (:ontinuation of U.S. air combat activity in Cambodia, what is that role'? The Congress has cooperated with the President in establishing the policy of firmne1l~ coupled with an openness to negotiation which has succeeded in bringing about the Agreement of January 27 and which ('an 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 oft' appropriations for necessary military expenditures and foreign Rssistance. The Congress has also enacted several provisions with spedfic reference to Cambodia.7 The President's policy in Cambodia has been and ('ontinues to be fully consistent with these provisions.
~ 1'.8. Constitution, art. 1. >,,,c. R. a U.S. Constitution, art. II, secs. 1 and 2. 7 For example, sec. 7 of the Sp('cial Foreign A"~htance Act of 1971 (Public Law 91-652,
Jan 5 1971 84 Stat 1942) and sees. 655 and 656 ot: the Forf'ign A~!listan('e Act of 1961, as am~ndeO (added by sec. 304(b) of Publlc Law 92-226, Feb. 7, 1972, 86 Stat. 29).
12
It was, of course, hoped that the Agreement signed at Paris on January 27 ~>ould be strictly implemented according to its terms, including the prompt conelm,ion of I.:ease-fires in Laos and Cumbodill nnt! the \vithdra~'al of foreign troops from those two countries. l)That has happened instead is that, in Laos, the ceasefire has been followed by continuing communist stalling in forming the new government and, in Cambodia, the communists responded to tbe efforts of the Khmer Goyernment to bring about a de facto cease-fire witll a fierte, general offensive. North Vietnamese forces remain in Laos and Cambodia and continue to infiltrate men and war material through these countries to tbe Republic of Vietnam. ~orth Vietnamese forces in CambOdia continue to participate in and to support Communist offensive operations.
enited States air strikes in Laos were an important element in the decision by Xorth Vietnam and its Laotian allies to negotiate a ct-use-fire in Laos. If cnited States air strikes were stopped in Cambodia despite the communist offensive, there would be little, if any, ineenti're for the communists to seek a cease-fire in that country, and the temptatlon would doubtleSS b€ great for Korth Vietnam to leaYe its troops and ~UPI)ly linc's judefiuitt-Iy in Laos and Cambodia.
Sueh a situation would he the opposite of that prE'f;cribed by Article 20 of tlJe Vietnam Agreement and would so threaten the viabiiity of the settlement in Vietnam :md the right to self-determination of the South Yietnamese people as to be totally unacceptable to the Republic of Vietnam and to the United States. In light of thl'~e fact~, it seems rIear that the argument that the Constitution requires immpdiate cessation of C.S. air strikf'S in Cambodia because of the Paris Agreement i:-:, in reality, an argument that the Con.stitution which has permitted the rnited States to negotiate a peace agreement-a peace that guarantees the right of "elf-determinatio-n to the South Vietnamese Iwople as well as the return- of United State:-: prisonf!rs and withdrawal of -enited States firmed forces from Yietnam-is a Constitution that contains an automatic self-de"truct mechanism designed to de"tror "hat hus hee-n so painfully achieved. \Ve are now in the proct.'ss of havim:: furthf'T discusRions "ith the X(lrth VietL'amese with regard to the implementation of the Paris .Agreement. We bope tllE'se dis('li:-Jsiolls will be su("f"f'I'. . ..,fullllld will lead to a cease-fire in Cnmboditl.
:1fl'. BRm'~ER. If YOU ,,,ould like. ~Ir. Chairman, I would summarize thnt briefly and a;!(lI'e~s lllyseH to the que~tion that has b?en asker.1.
Certflin1\- it. 1S t.nH', as "all la';";'Yel':::: know, that no COll::;titutional qll.pstion i~· ,HI C'[!s:- question. By dp·fin::'tion they arc difficult questions. T~'flt. js why "e have- courts. That i::; whv we have hnYYf'rs. That i:;:; what our s"strm is all about. Xatura1Jy'there can be~ difYC'rences of opjnion a::; to "hat the precise. legal ans\yer is in a given case. I am~ of rOllrSe. wpll tt.ware of the fact that some ~rembers or this Housennd ~Ienlbel's of the Senate who arf' abk Itlwye-rs, han' ('xprcs~ed tllpHlsf'IvE's to the efff'ct that the President of the l.Tnited States lacks h-'za 1 antlwritv to order air strikes in Cambodia.
'1 belif',"e. llowevrl". that. the predomillant VlC'ig-ht of leg-al opinion poillts the. other ",yay, and I would like to summarize briefly the administration position.
"'\Vhen President ~ixon took ornce on ,January 20. 1969. there were, somewhere in the neig-hborhood of haI:£ a million American troops in South Ylptnnlll~ and tbpre were. other operations ongoing in Indochina. I think it is not questioned at t.he preBcnt time that the President had the authority from that point forward to bring- to a conclusion the hostilitif's, the invohement, the situation in Indochina.
In his speech of Alay 8 of last year "the President strf'ssed, as he had before, that. there were three principal goals of this Gove.rnme,nt at that time in Indochina. The firi"lt of these i:as to bring an end to the conflict, to hring a bout and prose rye peace in that a.rea. The second was to flchien>, thf' safe withdrawal of our fo1'(,(,s from that part of the world. The third stated objecti,'e was to aehie,'e the return of our
13
prisoners of war who were then in captivity primarily in ~orth
Vietnam. III pnl'suance of those goals, which I bf'lieve haye generally had
both the e.xplicit and implicit. support. of COllg1'eSS~ the President
authorized the conclusion on ~TanuaTy 27 of this year~ of the agree
ment with which we are all familiar regarding peace in Vietnam.
That agreement provided for the achievement of the three objectives
to which I have referred. Kow to date the latter two of those three goals have been fully
achieved. American forces have been 'withdrawn from South Viet
nam safely and all of our prisoners of war, so far as we are aware,
have been returned tOllS.
The first of those three stated objectivps, however, is not entirely
realized. The agreement pro-vides for the implementation of all
three~bvo haye been re.alized, one has still not yet been fully realized
and that is where Cambodia comes into the picture. In pl'O\~icling for realization of the. first obje(~tjve, t.he agreell1ellt of
.Tanuary 27, specifica.lly in article 20, provides that ail foreign troop::;;
shall be- withdrawn from Laos and fronl Cambodia and t.hat- those
tprritories will no longer be used b~v any of the parties to the agree
ment, particularly in any way which would threaten the right of
South Vietnnm to self-determinat.ion. In the case of Laos a cease-fire has been arrived at. political dis
cussions a.re going on. and pursuant to the Laos cease-fire agreement.
60 days after political agreement is l'pac1wd there the ,,,-ithdnTwal of
X orth Vietnamese troops from Lnos is to be achievrd.
In Cambodia the Government declared in the wake of the .Tanuurv 2'7
agreement a unilateral cease-fire. Approximately tl, \\,E'ek went by ~ncl
the answer bv the North Vietnamcse, and other Communist forees in
C;llnboclia was an all-out offensive. At the present time there is no
cease-fire in Cambodia. The absence of a cease-fire in Cambodia followed bv withdrawal
of North Vietnamese troops flS required by article 2·0 of i'he agreement
wunld be a substantial threat to the right of self-determination of
South Vjetnam~ which iH Ol1e of the principal objectives of the agree
lllell,t of Janm~ry 2·7 to guarantee. If the Preslde-llt as of ,January 26 or .Tanuarv 27 had the authority,
which I .un~lerstalld a!, this point i~ ge.nerally~ agreed, to pursue tl~e
three obJeetrves to wInch I have l'Cfpl'l'ed. and in pUl':3lUlnce of those
objeetives to concludf' all agrcemellt 'which would formaUv proyirle
for the reaHzation of those objectin>s t.hen it stands to re~ason that
when two of the goals are implemented he does not suddenly lose au
thority which he previously possessed to secure the impIeme,ntation
of the agreement insofal' as it affects the realization of the relllaillinO"
third objective.. b
, I be.1ie\'~ th~t the que:9tion has really been asked in the wrong te.rIDS.
The questIon IS not: ", hat ncrw authoritv does the President have. to
do something new? The question really is~: ",Vby or how does t.he Presi
den~ suddenly 1ad~ authority which he has up to ~Tanuar;: 27 possessed '?
~o\V I e!nphaSlz~ that the a.greement of .January ~7, specifically
artIcle 20, IS not offered as an Independent basis for the President's
14
ullthm·itv. The Prcsiaenfs authority necessarily is and alvavs mnst be rooted iIi the COl1stitution of the T'.-nited Stah~s. in the constitntional legislation. und ill otlwr law ',,~hi('h goyprns this Go'Ven1IDPnt and t.his people. The point is thrrt in exerci"c of thnt authority the President has COl wI !lc1""Q this. a.gre('ment. and having had the. fmt.hol'it:v to pursue the goals emhQcliE'd in that ngrE'f'ment. IIp certainly is not c1eprin~d of that anthoritv. hy its (·onc1nsion. I helienc: that "the al'gllment.:-: that arise arc basi('al1:v~ onE'S of po]ic:v, and \vJwn yon rC<lllv examine thrm. not of law. Those who nnrne. thrtt the Prrsid~nt Incks 'fluthority to pursue in the, w-a~-s he has tb::·,'broarler :rnals of peacC' in Iwlochinu l I think. fnndamentnlly (10 not agree, and hi~toricfdly hay€' not flgrE'ed~ that his policie-s weI\" appropriato for the
G-()n~rllll'.f'llt to fol1m\". "Xow this is the position of the administration. I stflrtcd ont hy sayini! that T thought the weight of considerea authority supports this. T am sare \'\e can argue that back and forth quite a bit. Just. let l~le make two notes on this and then conclude, The chairman of tll(' CommitteC' on Fore.ign Rf'1ations in the other body reqllC'sted the Congressiona1 ReSp.itrch Service of the Library of Cong1'£:38, ~p('cifical1y its-Foreign Affairs DiYision, to do a study which hilS l)(,C'l1 pnblishC'cl. a.nd is entitled. "Conjrl'f-'ss a.nd the Tf'rmination of the \~ipt11am \\Tar.~' ",Yhile that study was directed to a some\vhat dif'fel'E'nt. qn('~tioll than 1'I-e are now acldrpssing. it indn(lcd ron('111~iOllS "which I t.hink are pertinent to note. That study ('on('lll<ien, and I quote from pag-e 10 of iL that "Thpl'e. is no bar to resumption by the Presidf'nt of hostilities in either countrY.~' That rpference is to Laos. anrl to YietI1al11. . "There is 110 bar to resumptjon by the. President of hostilities in either count.ry or against the Democratic R.epublic of Vietnam (X orth Vietnam). ~~ I think that if it is concluded in this congTPRsional study that the President has authorit.v to do thnt. it necessarily includes the authority to contlnue conductin£ air strikes ln Cambodia," ~ Finally, while I am quite aware of the fact that judicial precedents have relatively little solace t.o either side. in this discussion, there is some comfort to be derived from some of the statements made. Judge 'Vyzanski, who was probably one of the best known Federal judges in the r niteel States recently presided over the. District Court for the District of Columbia in the case in which some ylembers of this House were plaintiffs entitled Mitchell against Laird. In the course of reaching- a decision~ which did not dispose of the case on the merits I am frank to say, he did point out something which I think is pertinent to consideration of the propriety of the President's actions ln pursu-
111CT the three goals I outlined; durable peace in Indochina. withdrawal ol'our forces, and recm"ery of our prlsoners of war. .fudge 1\:yzanski stated. and I will give you the full sentence so there will be no question about the context: Even if his predecessors had exceeded their constitutional authority [which was not to say that they did] President ~ixon's duty did not go beyond trying in good faith and to tbe best of his ability to bring the war to an end as promptly as was consistent with the safety of those fighting and witb a profound concern for the durable interests of the ~ation, its defense, its bonor. its mortality.
15
I n-ould be pleased now or at sneh time as you desire, ~Ir. Chairman: to 11115\\"er qnestions I am ~ ure YOll all hase. .
)11'. ~IX. 1Ir. Bro\'i'C'r. the qllE'stion put to yOll \YHS by ,dul.t ~OllStJtutioJlal authority is till' bOtllbing lJeing ordpl'c!l in Camhodin'~ As I understood yout' , answer, first yo·u said no ndditionu 1 nllthorits was needed, the 'assumption being' the authority already exi~te,d: bllt you oi(l not give. us the SOlll'('(' of tbat. nntilol'ity. You fol1o\';ed that by saying that article. :20 y,-as not ]1('(,f'-:-:sary and it guye no indppelldent. authorit.y for the President's action.
S o~ the first question I wonlll like YOll to acldl'ess yourself to is that pa.l't of your answer which statt'{l that the President had authority before the tTanuarv 27 afrrcemenr..
"Ir. BROWER: Briefly stated, the. President's authority is derived from article 2 of the CS. Constitution as Commander in Chief of the Armed Forces and Chief ExecuthT 8 in the conduct. of our foreign relations, both to guide and orde,r the conduct of our forces which were thell--
~fr. NIX. ~fay I interrupt yon. You are not quoting article 2 ,,-hen vou sav "both to guide" and et cetera. " ),11'. ]"lROWER. I am not quoting article 2·.
~11'. NIx. You afC not quoting any deeision that interprets article 2-consistent with w'hat vou added. are vou?
).1 r. BROWER. I am" not quotiilg a ~ eourt decision. I was referring to the Constitution in the first part of the sentence and in the latter part of the sentence attempting to describe 'what I understand those powers to encompass and the cil'eum~tances.
~Ir. XIX_ So then YOllr first relianee is that part of article 2· in whi('h the President is the Commander in Chief of the Armed Forces, correct?
Mr. BROWER. I said Commander in Chief of the Armed Forces, and Chief Executive in the conduct of our foreign relations.
xlr. X IX. All right, Chief Executive. Add that to it. ~ow I want to know how in your opinion that gives him the au
thority to order the bombing in Cambodia. Mr. BROWER. My previous statement was designed to address itself
to answering that question. 1\fr. Chairman. I am not sure how I can elaborate on that or summarize it further to vour satisfaction. The President was pursuing three goals I believe cor~ectlv, constitutionally within the authority ,yhich he possessed~ and possesses as Commander in Chief and Chief Executive. Some of the goals were more military, and some of the goals were more foreign relations oriented, but they were all within those collective powers.
Mr. !lIX. Well, xlr. Brower, assume for the moment that the President pursued the goals that you are speaking of, but after the execution of the agreement of tTanuary 27 the situation was entirely changed and as ~ un?-erstand t~e. meaning of the agreements both parties if they are actmg m good faIth are bound by the agreements. Would you agree wIth me on that 1
Mr. BROWER. I belie,e. the parties are bound by the agreements. Mr. XIX. Then you agree with me? 1f1'. BRO'VER. I am not sure I agree with every word of the state-ment.
16
Mr. NIx. If you agree with what I said, you must agree. ;\1r. BROWER. Well--~Ir. ~ IX. l\~ evertheless, we. have. the agreement of .f anuary 27, ID7;{~ whatever it iS l and we are agreed and disagreed that the President is Or is not bound by a subject matter in that agreement. ;'low, if he is hound by the subject matter in that agreement, Mr. Brower, let me ask you this. Don't you think that, assuming he had authority other"ise, he relinquished that, did he not, and embarked upon another course outlined in the agreement of J annary 27? Mr. BROWER. I respectfully disagree with that statement. ~Ir. Chairman. ,Just as the. Pre~ident does not derive authority from such an agreement independent of an authority he possesses by virtue of the Constitution, so he do('s not surrender or delegate his constitutional authority by signing that agreement. ~ ::\fT. NIX. So there ·will be no misnnderstandjng, let Us say he sus~ ppnderl the exercise of it in this enterprise. :Mr. BRmV:ER. I ,vould agnin say I think there is a different description ,v11ich perhaps morc fits the circulHstnllces, ~rr. Chairman. The PrE'sident chose to eXf'reise his constitutional authority to pursue those three ~oals in a certain way ~ the 'way he decided to exercise it was formalized in the aarC'C'meHt of .Tanuarv 27. He decided that the best way to achieve fE'Hl1'zation of his three goals was through the measures whieh arc recorded in the agreement. K ow this ngreemf'nt. Jike- any other ngrf'pment, rf'qnirFs for its irnplementtlt.ion and l'eaJizfltion what you~ ~lr. Clwirman. have referred to the good faith. Xow let us look at article 20 in those terms. ,nlere "'as the good faith on the side of the Xorth Vietnamese party to the ag-reement when 1 wef'k aftE'r the unilateral dec1arntion of a cense-fire by the GfJYE'rnment of Cambodia an all ont. offensive support.ed bv X orth Vietnamese forcf's was bunched in Cambodia? 'Vhel'e
'YilS tlI{' '::rood faith in carrying ant an obligation agl'ef'Q to by North Yif'tnam -to encourage a cease.-fire in C~ambodia, to be followed by the withrlrawall'e.quired by article 20 of the Xorth Vietnamese forcE'S.? Xow with respect to artic.]e 20. for so long as the other partIes to the agreement are not nctlng- in accordance wIt.h article 20 it is proper for t.he rnited States under the agreement and to the President within 1lis constitutional authority to act as he 1S acting. ~Ir. !\u. 'low, Mr. Bro"·er, then the President elected to pursue the matter in accordance with the aJ!Teement of.J anuary 27. ~T my one party having entered into an agreement in good faith as I un~lE'rstand it: is not permitted to select the parts of that agreement wInch they WIsh to flbide hv. but the entire agreement. ~Ir. BROWER. Correct. -)11'. XIX. Now article 17 in the agref'ment. sets up an agenC':v to determine violations. Of course, South Vietnam is a partyto the United States. That is true, of course~ isn't it? }lfr. BROWER. I think that article 17 refers to the two-party Joint l\Iilitary Commission in which the two Vietnamese parties woi'k with respect"to problems in South Vietnam. Mr. X IX. That ;s what I am speaking of. Now~ of course, Cambodia is not a party to that. :Mr. BROWER. Correct.
17
Mr. K,X. But what I can't understand. ~Ir. Browe.r. is bv what authorit.y again other than what you ha,;e mentioned' we llave relinquished-by what authority was' the bombing ordered in Cambodia? I still don't understand it. There is nothing in article 20 in my view that gives any authority to bomb Cambodia, and your discussions of it had not changed an:ything, so far as I am concerned.
~rr. BWJWER. The authority of course is fundamentaUv founded in the Constitution, as I have said. The authoritv of the President as so carried Qut docs not conflict with-- .
Mr. KIX. But you have not said where in the Constitution. ~[r. BROWER. i believe--C\lr. NIX. Article 2 you mentioned. ',Ir. BROWER. It is' the powers of the President under article 2 as
Commander in Chief and Chief Executive in the exercise of our foreign rcladons.
Mr. XIX. Do you have any authority, any decisions of the courts, the Supre.me Court of this country, in interpreting your reference to mean what vou attribute to it!
Mr: BROWER. ,Veil, as I indi~ated previously, I think decisions and particularly decisions of the U.S. Supreme Court to a certain extent offer little solace to either side in this discussion beeause these are questions which, when they arise in specifie terms, are ordinarily treated as political questions.
Now, when you speak, NIr. Chairman, of authority, I anticipate that you arc also asking whether or not there is specific congressional authorization, and perhaps I should address myself to this briefly.
The war powers as they are described of the U.S. Government are shared powers under the Constitution, they are shared by the executive branch and the Congress in ways which are not always very clearly delineated. They have been traced to some extent by historical €xpeTienee.
Kow the President in any important decision that he makes in the area of military activities and foreign affairs is and must be aware· of the fact that Congress, too, has a role to play. Now the fact is that there. is in force and has been for 2 vears or more fairlv restrictive legislation governing the activities that the U.S. Armed "Forces may undertake with respect to Cambodia. Those restrictions have been closely adhered to, they have been fully honored, and the administration has been acting entirely within the limits of what has been proscribed by the Congress.
Xow, when you say "nuthority~" I recall that Ol1e reason there are lawyers and Jaw sehools~ and courts is because 011 many questions, and particularly on important constitutional questions~ it is not possihle for anyone to flip open a book and say: "Here is t.he answer. Here is the case on all fours. There is no further question." Of course. the.re is room for scholarly, intellectual, and political difference on these issues, but I think that the opinion expressed by the administration, and carefully reported, and the statement submitted by Secretary Rogers' testimony last week across the way, spells out a case showing that the President doe·s possess the authority to eonduct these activities in Cambodia, and I think that is at least tangentially confirmed by the
18
scholarly study tha.t Congress itself has dOlle and by statements that ha"'\e been made in a judicial envirOlllllent. ~
Mr. N,X. I wonld assnme, Mr. Brower. that the State Department studied this matter, becanse it took a perio(\ of time from the end of tfa.nuary 1!J73 l nntil April 30, 1973. for them to issue a statement covering this point. so they must haye ,gone to gradllate school on it.
:\fr. BROWER. I ,,"auld sav we did a cardnl job, Mr. Chairman. :\[r. NIX. I am sure vou did. :\1r. Broomfield. . :\Ir. BROO'IFIELD. Thank vou, l\[r. Chairman. ~lr. Browe.r. apparently; the St~lte Deprrrtment is basing its ju(lg
ment first on the Constitution and the right of the President to conduct the bombing, hnt the. main thing~ as I lmclerstn,nrl it. is the violation that has occurre,d under article 20 of the Paris a.QTf'f'ment where the North Vietnamese have brought in large numbel's of troops. Is that correct. ?
)1r. BROWER. If the-re were an effective ('efl~e,-fire in Cambodia at the present time, the air strikE's would not be gain,!! on.
:\1r. BnoWIFTELD. I would like to ask Mr. Hummel, Il"ttin
,
19
mentiolled for a long time in the press-that the main l'oad that connects the major seapmt of Kompong Som with Plwom Penh is open and hus been open for a number of weeks~ and convoys are going back and forth on that road.
Nmv as to the consequences for the Government of Cambodia, and the. consequences for the area of an American failure to support the government of the Khmer Republic, I would like to make a number of points. For instance, in the first place an American failure to support the legitilnate gOyernIllent of Cambodia would seTiously endanger the North Vietnamese cease-fire; it wonld directly affect the viabilitv of the rather fragile arrangemellts that are now being 1'orked out iil connection "ith the Vietnam cease-fire urrref'mcnt. This would be a serious blow to peace in the world~ not mCl'e\y our area .
.1\..merican failure to continue to support ,,,auld undoubte,dly encourage the ~Torth Vietnamese to further violate article. 20, and would encourage the ~ orth Vietnamese to continue and probably step up their activities to topple the government of the Khmer Republic, and the Communist side might very well succeed in this.
I wonld also point out that American failure to support would materially endanger the success of the negotiations that will take place Inter this month between Amerie~ln offidals and XOl-th Vietnamese officials-the negotiations that .Ambassador ·William Sullivan went to Paris to arI'an~e for last week. This is an e.xtremely crucial time in the observance of the cease-fire arrangement~ and in the construction of viable arrangements that can result finally in peace for this yel'y troHlJled area.
I would suggest that precipitate American action by the legislative branch that might preclude the possihility of American continued support for Lon Xol 'would not in any way assist those negotiations and~ in fact, would seriously endanger them.
Finally, I woulcllike to point Oilt that American failure to support the legitimate government in Camhodia could have seriously destabilizing effects on othe.r countries in the area, in the immediate area, the neighboring countries of Indochina and otllPI' countries in Southeast Asia. Also~ I think~ it could have some worldwide impacts jf it is felt. that the United States does not haw. the will to follow through to take the steps that seem to be necessary in order to a.chieve a final peace in Indochina. There could be nn undermining of confidence ill American pUTpose~ and an undermining of confidence. that countries now have in lls--in our vision. in our purpose, in 0111' objecti"es-and this could I think have long-term repercussions in that their confidence would no longer be so strong.
l~don~t know if I hay€', ans'Yf'red the thrust of :,vour question. sir. Mr. BROOMFIELD. Pretty well. How about the POW· question, tile
missing in action. would that also have an adverse effect on probability of receiving an accounting of those missing in action too ~
1fr. HmDIEL. And any deterioration in the implem{mtation of the Vietnam cease-fire a.greement would. of eourse. as you snggest. hayc serious repercussions in that the other side would no longer have tbe inducement, would no longer perhaps feel the. obligation, to follow through what ]s written ill the agreement about tracing people who are mis....~ng in action. about the search for air crash sites, for graves:
20
and about the intelTlewing of local populations that many Americans want to see take place in the trtlCillg of the missing in adion.
~fr. BW:}(l)IFIELD. Is it not true thnt Dr. I(issingeI' is presently working with Huss.iun officials to try to bring out a negotiated settlement in Camborlia?
],11'. J-Iv"1DfEL. I dOll~t. think I "\yish to :::tate pre('i~el:v "hat Dr. IGssinger has rliscl1~scd-I believe he has returned now to "'iVashingtonhas bef'11 di:;;:rllssing in the SO'rif't l"Tn ioll. hut I Bm certain that the topics lie arc addressing here \"\erc also brouf!ht IIp in his conversations.
~Ir. RIEGLE. ,Yould the gentleman from :Michigan )'if'ld for a point of information?
::U r. RROO)Il"IELD. Yes. ~Ir, RIEGLE. ~()Y['ral time ~Ton lIsed thE" phrasE" ''If'g-itimatf' ,!:[mT('rn
mcnt of Cambodia.'~ ,Vhat is the legal basis for ascribing-legitimacy to that particnlnr gOYCrIUllf'nt ~
::\fr. II-c:'DfEL. First. of all, tJlf'rc is not any other gOYf'rnment 1n exjstcnc0 in the. ronntry. f;ihanonk (·laims to l1aye a gon'l'llmf'nt. hllt it is a goycrnnwnt in f'xile" anfl I don't see how anyonE' ·would consider it legitimate.
~tr. RIEGLE. No elections or anything of that kind? ~rr. Hr'''IEL. Elections hal"e heen helrl in Cambodia after the depo
sition of Sihanollk, and under the repuhlican framework of the government of the Khmer Republic, and this we consider ann the majority of n~tions consider to be the legitimate succeSsor government of the prf'V10llS one.
I think, if T am not mistaken, the ratio of cOlIIltrips that rf'col!nize the g'O""c(,TIunent in Phnom PE'nh as opposed to those that. r('cognizp Bihanonk in exile in Ohina is about SO-odd for the fOnTIf'r governmpnt in Phnom Penh 01.3 opposed to .'30-odd who say the.y recognize Sihanouk.
~rr. RIEGLE. I thank the g('ntlpman. ~Ir. :'{rx. Mr. Wolff. ~Ir. ",YOLFF. )'fr. J-InmmeI, if I understood YOU earlier in vour remarks
you said under no circmnstances ,",,-on1d we introduee ground combat troops into Cambodia. Did I hear correctly!
~Ir. H"Cl\IMEL. Pardon? ::\11'. ",YOLFF. If I heard your teBtimonY parlier corrertlv vou said that
we, wOllld not illtrodllrf' ~rounrl combat troops into Cambodia. !\Ir. HU)DfEL. That is correct. ~fr. ",VOT,FF. Now just a moment ago you went through a listing of
what. wou1d happen if Arne,rica failf'(l t.o support the legitimate guvernme-nt of Cambodia. and amonl! other things you said it would jeopardize world peace~ that it wonld haw,: a destabilizing- effect on other nations, that it ,,-ould hay€'- a worldwide impact, that it would undermine confidence in Amerira. If al1 of those things happen, and if the American nMional luterest is so greatly involved in Cambodia as you ha,Tc just spelle.d out, why would we not use gronnd troops?
~rr. I--Irl\fl\IEL. For one thing there. is an explicit congressional pro-hibition against the use of ground foreps there. ~
Mr. Wor~FF. Are you opposed to that! ::Ur. HU3BfEL. No, sir~ I am not. ,Ve have no intention of asking for a
lifting of that prohibition, and we are living within all of the congres-
'.
21
sional restrictions that have been placed on American activities in Cambodia, and we are not requesting that any of these restrictions be removed.
:'IIr. 'YOLFF. How can you support that congressional prohibition and yet at. the same time say ___ -tmerican failure to support the legitimate government of Cambodia would have all of these dire conseqnences, illc1ndillg jeopardizing world peace?
~..fr. HU~E\lEL. Be.cause -..vl1at we are doing~ sir, is appealing to this body not to place the re5trictions upon Ameriean activity that might have these deleterious results. ",Ve are not addressing at this moment beyond what I have said~ the contin~enc-y that I hope will not arise that this body and the other body might take action that effectively prohibits our support of Cambodia. -
1)fr. 1VOLFF. ~fay I suggest, ThIl'. IImnmel, that yonI' rhetoric in defense of the bombing of Cambodia sounds to 111e as if we were concerned about an invasion of Florida or something of that drastic nature.
Now Secretary Rog-ers didn't go that far at all, he simply said in his statement that the U.S. air strikes in Cambodia do not first of all represent a commitment of any kind of the United States to defend Cambodia but merely a meaning-fnl interim action to bring about COlll1l1iflllce with the. Vietnam agreement.
I am concerned that with the rhetoric you have put forth to this committee that you are going to be trapped by your own rhetoric. Now suppose it happens that the bombing does not bring about a compliance with the agreement, and there is no indication that it has so far. IThat happens then 1
Mr, HODIEL. Secretary Rogers said the other day, and I have his full statement yesterday before the Senate Appropriations Committee-he said, and I quote in part, and this is addressing the subject of the destabilizing effect: ~ew relationships are developin~ in Asia which could provide the basis for
long-tN'ill stability. These relation<;nips arc "till fragile fwd tilP tr::'Inf"ilinn to stahility is a delicate procf'Ss. A sudden reduction in the Ameri('an commitment to this proce:=lS could sacrifice th£' progrE':=lS already achieved. LuC'k of implementation of the Paris Agreement would certainly be interpreted as just such an act.
This is the context solely of Cambodia, his full statement was addressing Cambodia.
I would not wish it to appear that I am sayinf!. as you seem to imply, xlr, IVolfl', that. the dire consequences for world peace and stability mightinc1ude the eruption of a third world war as a result of American failure to act. I did not intend to make any such drastic predictions, but I think I have a legitimate point.
Mr. IVOLFF. :'III'. Hnmrnel went down a 101l7list of consequences that would flmv if America failed to support the Government of Cambodia, and yon tied it into all of the things that I recited, and I think more as well. It just seems to me that this ties the nflti.onnl intcI"Pst of the l;nited States to the Lon Nol government in eifect, "'h1('h I personallv find quite incorrect. Do you tie the national interests of the Lnited States to the Lon Nol government?
Mr, HUMMEL. No, sir. IVe have said repeatedly, and a number of Government officials huyc said that we are not wedded to any particular Cambodian government. 'Ve want. to see a ee_ase-fire, and we want
22
in the long run to see a neutral Cambodia. We have not tied our American policy to any particular Cambodian government.
:\1r. 'VOLFF. Do vou tie. the American national interests to the legitimate Governm·ent of Cambodia, which is your phrase 1
:\1r. HICMMEL. I would hope that the United States Government would have relations with any legitimate government of Cambodia.
Mr. WOLFF. Why has not the United States attempted to apply the recourse of article 7 of the Declaration of the International Conference on Vietnam?
Mr. HmHIEL. If I might ask Mr. Brower to address that. :Mr. BROWER. C{)ngl'essman, you referred to article 7 of the final Act
of Paris by which 12 parties in effect returned the agref'ment .Tanuary 27. That remedy is not an exclusive remedy, it is not stated by the Act ofParis--
Mr. 'VOLFF. Have we made any attempt to apply it? Mr. BROWER. In this sense we. have. The North Vietnamese have.
circulated within the last 2 weeks a very lengthy note a l1f'~n.!? Yinio1.ls violations of the, agreement. In respon~e to that we have also cir(,ulated to the Act of Paris a rather lengthy statement of our vie,v of the situation with respect to ,·iolation of the agreement, so in a sense a con· sultation process has been underway. ,-
Apart from that I think it is fair to say without going into detail tha{ this question ha~ been a matter of discllssion between us and other parties to the Act of Paris. It is not an either/or proposition, you proceed under this but not under that. You proceed unde-r article 7 of the. Act of Paris, but not under your rights under international law to enforee. the agreement of .January 27. The~~ are not mntual1~· exclusiTf'.
1\1r. 'YOLFF. Well, I understand that but it would seem to me that if you enter into an agreement which does ha,'e a provision in it which seeks enforcement that you would at least turn to that provision as one alternative that yon might seek other than just bombing.
)11'. BRO'VER. As I say. we have undertaken actions ,,,-hich T think are within the general con~templation of article 27. although we have not taken the f1111 formal steps obviously that are spelled out in article 7.
I would in reference to the questioning that led into this make one point and that is, I think it important that in viewing this situation there not be, so much concentration or undue concern a.bout the assistance to the Cambodia aspect of this. Of course assistanee to Cambodia is implicit, it is a part of trying to achieve a cease-fire in Cambodia. The principal objection at the present time is to bring about the ceasefire which the parties to the January 27 agre.ement pledged themseh~es to encourage~ and which is as a. practical matter--
1fr. 'VOLFF. Is there any evidence presently that our bombing is hplpiIlg' to hring nhout compliance with the cease-fire?
Mr. HTThDIEL. To this extent, yes, that in the absence of air support there. would be no incentive whatever for the North Vietnamese and t.he Khmer insurgents to sit dO'\ll with the Government and engage in ('ense-!lre negotiations. If you recall, sir, the. administration spokesman made it very similar---
~Ir. 'Vm:FF. You are using a negativ(', kind of argument~ JUl'. Hum· mel, that I don't personally find very persuasive.
•
23
As a result of our bombing have we had any positive developments
that would indicate who it is that is helping to bring about a com
pliance with the cease-fire 1 Y1,.. HUMMEL. Beyond what I have tried to say, sir, no, I cannot
cite any particular evidence, except I would like to insist--
Mr. WOLFF. Are we just going to bomb indefinitely? Is it the policy
of the United States Government to keep bombing until we get a c.ease
fire lIs that our policy! Mr. HU}1~lEL. 'Ve believe that the prospects for a cease-fire are not
as distant as you Be,enl to imply. 111'. \VOLFF. Mr. Secretary, I am asking a question. Is it the policy
of the United States Government to keep bombing in Cambodia until
,ye get a cease-fire? )'lr. HUMMEL. The policy at this time, sir, is to continue to support
that gm"ernment with air support, with bombing--
Mr. "WOLFF. Lntil we get a cease-fire? Me. HUMMEL. IVe believe that one factor will ameliorate this situa
tion automatically, and this is the coming of the rainy season when the
pressures by the insurgents on the Government of Cambodia is likely
to les~f'n~ when we feel that the bombing, which you and other 1Ieln
bel'S of Congress apparently object to very strenuously may no longer
be required, in the saIDe amounts at least. Now I do not know ho~ to answer your question about when a cease
fire can be aehieved. 'Ve simply do not know. )ir. 'VOLFF. I realize you don't know that, but the policy of the
Government~ as I understand you to artieulate it, is that we are going
to rh onl' thing t.o get a compliance with that cease-fi~, and that is
bomb. and bomb, and bomb, and bomb, and bomb unlll we get com
pliance with the cease-fire. You are not following the other alternatiye
approaches that were open originally to us and under the Paris Agree
TIlent : we, are just going to bomb. Y1r. HUMMEL. May" I say that the diplomatic negotiations that I
referred to are an element of hope-they are going to take place some
time this month-and that the situation in Cambodia as one of the
major keys to the compliance to the snccess of the cease--fire agreement
is obviously going to be discussed in those negotiations. 'Yf' are undertaking other diplomatic representations. We are not
innactive on the diplomatic front, and I can assure you that no one
~ishes to see the end of this situation mor'e than the Am_ericall Govprll
nlent. 'Ve are, taking what steps can be taken outside of the framework
of the pure military activities. ~1r. 'VOLFF. Well, let me say in response to that, I am sure this mem
ber of the committe,e would be very interested in e,very step you are
taking other than bombing to bring about cOlllpliance w'ith the ('case
fire. I have seen very little of it, and you ceItainly huye not testified
about it up to this point--)1r. BROWER. Mr. Chairman--~'ir. 1VOLFF, ~ir. Chainnan, there are many other members I know
that want to question. Mr. N,X. If there is no objection, the statement presented by Sec1"
tary Rogers "ill be made a part of the record at this point.
24
[The material referred to follows:J STATElfE~'T OF SECRETARY OF STATE 1YILLIAM P. ROGERS BEFORE THE SENATE
ApPROPRIATIOl",S COMMITTEE, MAY 8, 1973
Mr. Chairman and members of the committee, I appre<:iate this opportunity to appear before you in support of the Administration's request to transfer already apVfopriated funds \,ithin the Defellse budget. Yesterday Secretary Richardson discussed with you the specific need for transfer authority for these fUlIds. This morning I would like to talk with rou auout tbe broader issue--bow do we end this war'f One iUviting-ly simlJle answer that is being offered to us is that the United Swtes can bring avout J)€ace unilaterally br just stopping tbe bombing in Cambotlia. But it is 110t that simple. Just ten 'Yf'eks :q:!"o we did unilaterally stop bombing in Cambodia. And we all know what bUIIIJf'netL The ::\orrh Yietnarne:<€ und rhe CamiJodian insurgents took advantage of this (ILJPortnnity for lIeaee llY laullching a major military offensiYe. Tlwy n'sl'owled 10 th(> Camllodian Go.-erIllllent's unilateral ceasf'firl::' und c:lll for nf'g,"otiaticns wirh II demand for "total ..-ictor;v" and a refu:-'::11 to negotbte. The choice 1l1ey ]Josed tlJen, and the choice uefore us toda,', iii whether to allow a illilit,uy t:lkeover of C,:lubo(]ia by ~()rth '~h,t-Xa1ll awl irs allies or in:si"t U!)')ll obsf':"atioll of a u.~gotinH·d peace, ,YIlPll we Hnalyze tllp:-;e two opth!n.s, I lielicve the- choice is clear. Jnst thr!:"t:' montlJ~ Sgf) W(! i-'ii!lled H:l ;1cTeelUellt in Paris j\ith tbe Xorth YietILlllleSe. Arti;'le 20 of tbat ngret'lllPnt :o;tip1l1Q-te<l: "Forpjgn ('uuntr;f'~ slwll put an end to all military actidtif'i' in CamV0dia and Lao.,;, tntaEy YlItllllraw i1'om and refrain tram reintrodudng intu these two <:OUlltrif'~ troops, military 3(j-risers and wi/itaI'}' lJE'l'~onnel, armaments, rnuaiti(JIls and "":11' ma1eriJll," The_ "Cnlted ;States did ('e~se its only military activity-tbe bombing. We had no troop~ in ('nml)o(]ia, Br contm"t ahout balf of the estimated ,0,000 to 7[i.OOO elwnF foreps in CmuDodia are Xorth YietWln1E'-se. To the lJest of our knowlf'cibf'. n(lne h'lYE' been Wif!ld~'3 wn. In fnct tile sllsteiu(;d offensiw' ~'LicL 1Jf'.~·an \ .... hen We stoIIJ)I?-u hom bing wns in:-tig-3ted, leu and "UVllorted by :"\orth Vif'tna-mese troop;.:. Is tllis a ci'dl war ~dH'n balf of one :<.ide'.'-! arllf'd force~ are foreign: Vi~hat SllOUld V,S. policy b{, under :-:uch drCllllstallces? First, our actions "ill be strictly limited to our liIdited objecti,e. 1Vf> will not 3Iio.(' into anntLer yjpt-Xam, lYE' ,yilt not. iutrndnce American gronnd forces, Vire are not c('lllmirtE'd to any 113rticulnr CHlUhodian C'.-o'ernn1f'nt. Our only purpo;.:t-' i,<; to e-usure that the Pari:- pe-ace- agrpemf'nt is Ob~f'r'E'd. Vir" haYe- no othEr 07ljrcti1;r. The rf'ason we are iJnmbing in Camhodia is to bring about the implementation of this agrepment. Vire are just nO' eager to ~tf)p tIl f., bomiling [IS it i~ p().,-,."ihle to be . .And, of coursC', we will d0 so ju"t :1." soon [lS thore i." a ceasefire. Th~s is in ~ccord with our mutual a,~re('ment with !'orth Yie-t-Xam. Tbi.<: is our only eonditioll. It. is rlear to pypryonE' that the fighting in CAmbodia w0111d stop if Xortb Vietnamef'.f' for('f's were withdrawn_ I unoerstumi that A re<>ent. ~f'natE' report ('amp to just thi~ con'-·lusinn. For the war in Cnmhodia has always heen a prndu<'t of tlH~ struggle- in 1'"ie-t-.:\Tam. In fact the fighting fir,"t erupted in Cnmbooia whf'n the (',"lmhndinns ortlf'rf'd the Xorth Vietnamesf' ann Vif't Cong- to lE'n,f' thf'ir ('ountry. The nggreRsors in 1970 nnrl the flg",2"r€'f;:f;:Ors torln:r fire the Xorth Vietnfl me-se. Pe-flce rnUl"t ('orne to nll of the nations of In(lo('hina. or it will nnt comp perIDnne-ntly to nny of tbelli. Thf> fall of Camb0dia into Xorth VietnAmpl"e hano:-: wonld e-ndnn~er the framp,,'ork of hoth the Yipt-~am ceAsefire and the f'ntirf' Indochina sitll{)tion, (\lmho(lia i;;; fl ~mnl1 ('ollntry in'mlvPd in a (,ontli('t nnt ('If it~ nn11 mnking, whi('h onlT' wflnt:-: to iw If'ft 310110. Wf' Are p(>rfe('tJ~ wHUne: to- nllo" thp OnmhorJiam: to (lptprmine thpir own D('Iliti(,<'l1 fnturf'. ;-',Tow the North Viptname"e mll::;t dem0nstr:>te the Ramp approarh by oh"prving: thp pen(·p 3Zrf'f'mf'nt. 'I'lw nnproprintion:<: hill ,,-bieh you nrf' con:"iderin~ torlH~- is not :m oppn-enflf'r1 ('omrnitmf'nt to nrolong this war. It i"impJ.r requests fl1nil:-: nnti1 thf' pnd of this fis('flI .. e:Jr. Wf' all understnnfi that H takf.s tim(> to finnlIy- hring to fin end a war which has l{tsted for over a qUflrter of a century, We fire g'reatly con-
25
-<:erned over the repeated and serious violations by the communist side. But we should not lose bope that the Paris peace agreement will be carried out.
Fortunately there are positive signs as well as continuing problems. Fighting in Vietnam recently bas been at a low level. In Laos fighting has markedly declined and the two sides are discussing implementation of their agree-ment. And in Cambodia the government has formed a new leadership council to achieve more broadly based public support. We believe that ceasE:'fire negotiations in Cambodia are still possible. With our support the Cambodian Government is continuing attempts to initiate direct negotiations with its opponents.
,\Ve aU want to see the bombing stop, but our broader objective is a lasting peace throughout Indochina. A halt in one kind of fighting, a ceasefire by only one side, is dearly not enough.
By remaining firm with the North Vietnamese we ha.e come a long way to\vard peace. 'rhe Paris agreement pro.ides a mutually acceptaule framework upon which a lasting peace can he accomplished. For the 'Cnited States, it has freed our prisoners of war and allowed us to withdraw all of our forces from Vietnam. For the people of Indochina it has brought the first hope of genuine peace for over a quarter century. Surely this is an agreement worth defending.
A period of adjustment is required to overcome the tensions and distrust which have accutnulated during this long war. But Our objective is to help Indochina and all of Asia turn away from confrontation -and toward the common tasks of economic development and political cooperation.
New relationships are developing in Asia which could provide the basis for long-term stability. These relationships are still fragile and the transition to stability is a delicate process. A sudden reduction in the American commitment to this process could sacrifice the progress already achieved. Lack of concern mrer implementation of the Paris agreement would certainly be interpreted as just such an act.
1Ve haYe been able to make concrete progress toward a more stable world in recent years not by wishful thinking about our adversaries nor by abandoning our friends and allies. We have done it by demonstrating strength, perseverance and a wHlingness to negotiute. It is this approach which can still bring the peace to Indochina we all want.
l\Ir. NIx. Mr. Burke. Mr. BURKE. I think Cambodia is not a part of the SEATO Treaty,
it is a protocol state. ,,1,at obligation have we then technically to even support anv part of their government"
Mr. Ho·nmL. 'Ve have no commitments to this government or obligation in the SEATO framework, or any other. Cambodia is inside the area described in the Manila Pact. The SEATO treaty has a protocol area, but two Cambmlian g'm-e-rnments haT"P made it known that. they do not wish to be considered a paIt of SEATO, and would not ask for assistance under SEATO, so SEATO is not involved in any of the activities we have taken.
:\11'. BunKE. The hom bing" then actually being done is in connection with the war in X o1'th Vietnam so as to insure the fulfillment of the so-called peace terms. or should I say the responsibilities of both the N ort.h and S011th Vietnamese, is that. correct?
~Ir. H D::\f]'IEL. That. is the major purpose, yes. ~fr. BURKE. I think then, it would be important again to ask by
what authority does the agreement give to the President the right to contin:ue t.he bombing especially in view of the words of the agreement Itself"
]\fro BROWER. I have tried to make clear-perhaps as worthy of reiterating-that we are not. saying t.hat. the agreement. of .Tanuary 27 itself is a source oJ authority for the President to bomb independent of his constitutional authority. The source or his aut.horitv is the law of the United States, principally the Constitution. The agreement was
26
concluded in exercise of his constitutional authority, and to some extent sets the outline of how his constitutional authority will be exer-cised, -
Mr. BURKE. Well, can you give me an instane" when a violation of agreement in the past, any agreement the U.S. Government may have had with a forei!!1l nation, caused such drastic action!
1111'. BROWER. If vou mean by such drastic action--Mr. BURKE. Bombing a neutral country. Mr. BROWER. Actual warfare. I would have to supply that for the
record. I do not recall off hand. I do know that the United States on two occasions that I can recall has come pretty close to a hostile situation in enforeing its rights with respect to the western sectors 1)£ Berlin. which rights flre recorded in executive ngreement includ· in/! three other countries.
Mr. BURKE. That illIly be right, but I think the question still arises as it did in the Dominican Republic and that is whether then ~Ir. Johnson had any authority to send troops into the Dominican Republic wit.hout the Congress authorizing such action.
T think the Members of Congress. and certainly of this committee-althon/!h I do not purport to speak for them-would like to know to just what extent the executive part of our Government feels it has the authority, under the Constitution, and by the way, understand it the same as vOU O(}--
Mr. BROWER. You are not alone. Mr. BURKE r continuing]. That is, to allow the President to go into
areas and possibly get our country committed to another war. In fact, I don't nnilerstand one other thinl! abont the present situation. I can't nnderstand how the Defense Denartment can commit monev that the Cona-ress ha.~ not authorized for ~nrh artion in ad"lanre at what the Cong.ress does. such as has been done. in these bombings.
I wonner if you could l with the. permission of the chairman and t.he committt'e. submit. some· evidence of somp instances when we have carried on such actions in the past ann put it in t.he record.
Mr. BROWER. I would like to understand the question. When we ho"e bombeo?
Mr. BrRla. X 0: no. 1VIlf'n w(' have had an ap:reement but no tre.aty and on our own huyc
In ken drastic steps to become militarily involved to enforce the provisions of an agreement without. fnrt,hpT trf'nty negotiations.
Mr. BROWER. Well, I would be glad to supply those .for the record. There are a number of in~tan('es, a number of them related to the ':;::'p('flnd 1Vorlrl "TRf in particular.
Mr. BURKE. 'Vhat 1 am "skin/! now is that you as a constitutional lawver suhmit. ~onlE' legal authority allthorizlng such ac6on.
,\fr. XIX. Without objection. that rnav be submitted for the record.' ~Ir. Bn,,"-GILUr. 'Vould the gentleman Yie.ld. Dirln't the. gentleman mean to say under executive agreement rather
than trent"'~ \,fr. RDRKE. Yes, ('xecutive agreement such as ~e hilve. in this
sitllation.
1 'fl'!' Tflat".rinl r"l11IP:"tf'd b~- :,\Tr. Bllrkf' will Of' ~llpf'lipr1 for t1;p ~lio('ommittf'E' file~ nt n lfttf'f natl' aiO thE' final State Dl:'partment l"tud;>, had not been editf'd in its f'ntird:: Itt tlH" timp of p:rintin)!
Mr. BROWER. That is true. I would have to sav. however, that this is Vietnam. Indochina is somewhat different f~orn the other sitll:ltions. \Yf' probably have in our history no previous pxamp]es of such an extended involvement in hostilities abroad which had during its eourse. so many (lifferent elements, and so many d.ifferent bases, including in this particular case the Tonkin Gulf Resolution~ and the SEATO treaty. and some other itenls. I am therefore 110t sure what value the prec"edents will be one way or the other: but. we will do our best to gi ve the fulleet historical recount of what would be pertinent.
Mr. BURKE. Thank vou. I have no further questions. Mr. NIX. ,Vithout objection, I think it would be. profitable to us if
we permitted Mr. lI-Iiller to express his views as to the statement made by 1\11'. Brower, if that is agreeable with the committee.
)11'. IIARRIXGTON. ),11'. Chairman. just as a question beJore doing it. I assume, even though I speak as a nonmember of your suueomnlittee, I don~t have a chance to be reached in view of the eommittee-----
Mr. ~'X. That is the reason, because of the time. :hir. H.ARR1~GTOX. 'Vin we adjourn to a time at which we can ex
peet this same group baek to have further questions? :\1r. NIX. 'Vehave that in mind. Mr. :\liller.
STATEMENT OF ARTHUR S. MILLER, PROFESSOR OF CONSTI· TUTIONAL LAW, GEORGE WASHINGTON UNIVERSITY, AND CONSULTANT TO SENATOR SAM ERVIN, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
Mr. ~frLLER. Thank you, sir. I will be as brief as possible. I have a prepared statement which I lm,'e filed with the committee, and which I hope will be printed in full at the conclusion of my summary.
I sat here with considerable interest and a feeling of deja vu, I think, listening to these gentlemen this morning. 'Ve have heard this all before. for the last 12 years or more. It is the samE' sort of language we have long heard. I wonder whether they talk like that in the State Department over lunch, for example. I do not understand how people ca.n talk this ·way. The· legal basis for this action was stated by Ambassador Sullivan, who said. so 1 understand, that it was because President Nixon won the election. That is what Mr. Sullivan said.
:Mr. BROWER. He is not a lawver. Mr. MULER. He didn't have to be a lawyer. Mr. DOOLIN. And he didn't say it. ~Ir. ~IILLER. He denies it, but he did say it. Mr. NIX. Mr. Miller, may I interrupt to say this. I can understand
disagreements; we have that on the 'Vatergate. Mr.lI-fILLER. All right, sir. The question I would put on the basis of it, which I think is very
important for your su bcommittee to listen to~ is the problem of seereey in Government. I don't think we ha,e all the facts. Certainly the pubHe does not have, and I gather from the tenor of the conversation this
28
morning this sllbconlmittee dops not hfrn~ the facts. lTn1ess you get the full statement of the fads, I do not think you can make an evaluation of what. is actually going on ont there.
Kow as to the legal basis. I don't find the Constitution so unclear as dops ~rr. BroV\er. there is a ('lear commitment in the, Constitution to a shared power bf'tween the Congress and the President ::::0 far as the commitment of thi~ Nation to hostilities. That was stated, for example. over a hundred years ag-o by ~Ir .• Justice Grier -when he said this, in the con Tse· of upholding hv the way President Lincoln's action to hloekade the Sout hem ports. He said that the President "has no power to initillte or declare a war agninst a foreign nation or a domestic state." Then he wpnt on to sa:v that the President has power to resist invasion h:v II foreign nation, and so on; he not onl~T has the power but hns the duty to do it.
So tlwre,' is n· shrrred power herf', sir, and the Con~titllt.ion is dear on that. The Constitntion is nlso quite clear thftt Congress has a sav in thf' rommitment. It is utterlv clear, of t.he use of Arn1l:td Force$. Th'~ Congress has indicated its will at Ierrst. two or three times in I'f'Cf'nt ye,ars. lJ.Y rf'pr-aling. for ('xample. thf' Gulf of Tonkin resolut.ion. Thf're is a. clenr indiration of cong-rt?ssional win so far as the use. of Armed Forces in that part ofthe world.
1\~o onE' denies t11e power 0f the Prpsidf'nt to remove the troops and t.o !If't 0111' pri'oners back. "11fl.t I don~t find is any one authorit:v~ sa1:ing--, ::IS did ~Ir. Brower, t.hat it is the weight of authority for the President to bomb Cambodia. I don't know nnyone sa:ving it except the State Department. If I may say so, that was a rather self-serving document bv the Secretan, who is also a lawver. If I may use a stronger term. I find the" '~ecretarv's doC'nment intellectuaIlv dishone:-;t. It is.fl oocnment which is at b~st a self-serving document;~it is a bootstraps arg'1.unent.
Tl1f~re is no power in the. President to lIse t.he Armed Forres in this wav. T rlon~t know anv reDlltable ('onstitutiollrrJ scholar in the country w}{o ,,"ould so maintain. I could be corrected on that, but I certainly don't know of anv.
Another thing that Congress indicated a couple. of years ago, of course, was the Cooper-Church amendmrnt. the limitation on use of ground fo"ce~. ',ell, let me, suggest one thing. The President has said, and I heard his Deputy Attorney General so state. that the President can ignore the will of Congress by impounding funds. He can rE'fuse. to spend mone~v anytime he wnnts to~ said ::\11'. Sneed .
• Tndee Ga'ch. bv t.he way. said that he ('ould not on the water ponution bil1 }-estel'day. but the PrPRic1ent has sflirl. "T ('lln ignore fl.
law of Congre~s so far as an approprifltion is concerned.': "Tfly does not this same power then carry over? 'Yhy" are we, to believe the Presiclf'"nt or any of the people in the executive departmpnt if he asserts the power not to sppnd mone:v·? I find no hasis for h,,·lieving him. I would like to believe people. I find no basis for believing these people.
Second, ancI I think I would pnrl on a note like- thisl
it is not a matter of t.eehnical law. The article 20 of the .Tanuary agreement is a bootstraps argllment at best. Yon ('annot point to something ~vou have done yourself as a Ie-gal basis for saying you can continue doing
..
29
it. Anv first-yenI' law student knows better than that, and certainlY the Secretary'of State should know better than that. •
The Comlnanc1er-ill-Chief powers, of COUI'se~ giye the President not only the po,,-er but the duty to protect this :'Iation. Are we to understand that there is some danger to this country 1 lYe hft ve gone through th!? domino theory and all the other theories many, many times -and for many~ many years. If I understand )11'. Hummel cor-rectly, he 18 re~urrectillg the d.omino theory.. ..
Now. what 18 the natlOnallnterest '? 'Vhat IS thIS Interest that makes it so inlpol'tant to world peace that ,ye go over there and drop bombs on little brown men in black pajamas?
I would suggest one thing f~llth('r without bringing a racist remark into it~ and without attributing racism at nIl \"\ith this, that if we were bombing ,yhite Europeans you wou1d find an uproar, here. 1Ve wou1d not be doing it.
The PresIdent, of .course, has the raw power; he can bomb becanse you let him get away with it. You can stop him if you want to and yon have got the constitutional power to do it. He does not have the legal authority to do it, but he has got the raw power to do it, and he-is going to continue doing it unless Congress pulls jt~elf up by its O\Vn bo,otstraps and stops hinl.
Thank you, sir. [Mr. ::IIiller's prepared statement follows:]
STATE)fE:XT OF PROF, ARTH"L""R S, ::\!ILLER. 1\ATIONAL LAW CENTER, GEORGE
"~ASHIXGTON "C::nYERSITY, 'VASHINGTO:X, D.C.
THE COXSTITUTION AXD MILITARY OPERATIOXS IN CAMBODIA
Introduction I appreciate ihis opportunity to te5'tify before your Subcommittee on the deli
cate and important question of the President's constitutional authority to COlldnct military operations in Camllodia. In the main, it appears that only air p01','er has been employed; I do not know of any present-day introduction of ground force8- in Cambodia. It i"honld be mentioned, however, that the press accounts haye lleen scanty, at best, perhaps because of a systf'matic attempt to euntrol 01' limit the flow of news on exactly what AmeriC'an forces are doing. In this conneetion, an initial queRtion your Sull('ommittee may WiRh to analyze is the amount and nnture of information m'ailable to Congress and th(, Amprican pf'Ollle ahout CamhorLia. In other words. perva<.:jye practices of gO"f'rnmental secrecy, fully documented in hearings before CongrC'."-s, evidence a desire by the Executive Branch either to conN"al or to manipulate public opinion. If the 80-Cflllf'd "Pentagon Papers" showed anything, the,v dearly reyealed a pattern (If deception carried out over a numher of years by high-level OftiCNS in the Executi,e Branch, often airled and ('l.hpttE'd by ::\!emhers of Congress.
'rhe8e hrief remark"! today will dral with (a) the ,:zeneral power~ of the PreRidpnt, under the Constitution and the I"ltatntE"s, to carry out such military operations: and (h) an eyaluation of the legal position of the Prf'sidpnt:1:-; Ret forth in the memorandum Ruhmittf'u May 1st by S(>cretar;v of Rtnte RogerR to the Renate Foreign Relations rommittef'. In thE' mflin. ,y]wt follows ('on:<list~ of a serieR of propositions, buttressed at times with a little discussion, on those two prinC'ipal questions.
Lenar. p()1v~rfr of the PrcslrlC'llt 1. If, as most lawyers would assert. the Supreme Conrt ba:-; the final w0rd as
to the mf'aning to be given the delpbic words of the Constitution. it should be noted at tbe outset that thE'Te is Yery little judge-made law on the military powers of thp Prp"irlent. The judiciary bas tended to sby away from deciding such ilisputes as do ariRe: this was f'learly indicated in the case of MitcheU Y. Laird. a portion of wbich was quoted by Mr. Rogers (of which more later). wbere
97-471~ 78--3
30
the Court of Appeals for the District of Columbia Circuit on March 20, Hl73 said that it was \vithout power to rule on whether the Imlo-ChillU contikt was a "\-var" in the constitutional sense; said Judge 'Vyzanski for the eourt: " ... we are faced with what has rraditionally beeu called a 'political que~tiun' wbich is beyonu tile judidal power coniprreil by Article II of tlle Uniteu :'Itatet> Oonstitution.'·
2. There is no :Supreme Court ca~e direetly on point, a:,;sullling that the issue i~ the employment of armed. force1S by presidential order halfway uroulill the world.
3. The Pre . ..;iuent dues ha.e a "reserye" power to take such [[cHum; a:-. rn3.r be necessarv to dpfenu thh: nation ali\! tn iIl~ure its Hlryiyd wlll'li aetuHl danger t~ the nation itself is manifest. :-;ee the Prize Ca8cs. 2 Bl:J(:k 633 \ 1~G3"), in \yhicb the f-:ullreme Court upheld the right of President Lincolll to in~titute a hlockade of SOllthpl'n lJOrtR during tlie Ciyil 'War, In that I..'H';(" ,1m;tic:e GriPl'. speaking for the Court, said that the President "has no power to initiate 01' declare a war against a foreign nation or a domestic statt'" . If a war is made hy inntsion of a fort'ign nation, the Pre~ident is not onl,> llnthol'iud hilt iJoUlHI to resist for('!! by force," The t'xiRtencf' of thaL !lre~i(jplltial authority ,mel dnty, howen'r, gON, only, a:-: ,Justice Grier imlir:atHl, to situation" \y11en tllP ~ecnrity of the nation or of its armed force:" i>: obYiollSly thrf'atenej, I (io nnt ll!l(lerstanu the Exe(~utive to maintain that whateyer is tahin::!' plaee in Cambodia today i:-: an actual thrt:'at to the physical Rennity of the Enitf:'d ~tate:o; or hI any of our military forees.
4, The leading case on the pO\\'f'r~ of the President is the f-;()-callt:'d 81(('1 Selzllre Cru.w, 343 Ct';, fj,j) (1~G:!) in which the SnIlreme COllrt iunllic1nted Pre:o;iflent Truman's seizure of the :"teel mills during the Korean conflict, In that CfL."'£', ,Justice Blacl(, ~pt'aking; for the Court, ~aid that the Pref'ident'~ pO\,,-er~ TIlIl"t flow from either the Constitution or a st:ttute, EYen if it i:-1 conceded. [!.,'" indetd it must, t.hM ,Jus.tie:e Blltck'.-; formulation \Va:-: far too Siillpli~tk to cn,er tlJ(' myrifJ.l1 situations of prf'sidf'ntial power, :o;urely tlwt de('ision stund:.;; a:o; a JalHIIll;lrk of (lnr ('onstitutional hif'tory, It :o;tates a general proposition that is indbr:utnble-tlwt the spirit, if not the l{'tter, of the Con:4itntilln require,:;; ('()n~n'~:-ional Jlllrtidpation in the deri!"ionf'. settillg basic policy, I would sugge:-:t tllllt t',ll!lhlidifl i',: ..-11\.:11 a situation and that, a('cordingly, HlE' ..... 'teel Seizllre Ca,'5f' .stanrl:- :-:quarel,\T in tlw way of any Presidential ai'sertion of a tmUateral authority to bOIllll or 01hervd~e commit American force~ there,
5, Justice ,JflckRon's poncllrring opinion ill the Steel Seizure CaM' set<. uut an often-cited hierarch:r of PresidenthLi pow('rs: (a) Presidential llt)'i\'er is at its height when he aets "pursuant to an eXIlrf'~S or implied authorization from Congress"; if. said Jackson, a Prc~ident's act is hf'lrl unconr-:titutiollul. it usnally means that the feder:il gO\-ernment "a:-: an undiYided \yhole" hH'k~ power: (b) "'hen the Presidf'llt acts in the absPlwe of exrre~s or iIllplied cnn~tjtutioTial power, "he ('an only rely upon hiR own independent powers."; and (C-I "\\'llPn the Pre)';ident takes weaSHTeS in('omnatible with the express or implied will of Cnngre<ls, his power is at iti': lowest ebb, for then he ('an rely only upon his m';ll {'fIn~titutional powerS minus any constitutional powers of Con,!!'rf'~s oyer the matter."
I )';ugge;;;t that the bomhing of Camhodia fits tlw th{rd C::ltE';!Or:> lind rhat the Prl'sident, in relying on his "coIIllnander,in-chief" pOWE'r~ mll~t exen;ise thnse in the light tjf both the express con:->titutiOl1al mandate that oul.v ('on,::ress can declare war ltnll at least the illilllied statutory l'entiment that armed forc'E's are not to he used in Camb()flia, In this connection. see the so .. {'alled CDoper-C'hureh Amendment, Section 7 of Public Law 91---n.,)2 a:-: amended by Puhlic J"a'"' !:J:!-2.:2G, There can be no douht that the Prel'ident is acting ('ontrary to till' cOl)stitmional requirement of Congrf's~ional a('q1l.iescE'nce in military .... julen('e (outsi!le, as I have ~aid, of outright ernergeneies, such Hs an imminent lnt'aSton of (lUI' ;;.;11or('s or d:mger to American troops) and to tIlE' statutory prn"\'ision, Thnt Ilrndsion no doubt ,vas hortatory rather than binding, and has been so trpatpd by the Pre:-:iaent: but at lea:-:t it means thnt the Pre,·delent')'; aetions carn, fiS ,Justir'e Jackson said, 11 hea .... :;· burden: "Courts can sU<ltain exclush'e Prp;idf'ntial ('on .. trol in 8u(:'h a casp only by disablin,1;! the Congrf'i"s from acting npon the suhject,"
It will not 00, it Rhouid be emphasized, to claim, as it has hE't'll daimed at times by the Executiw', that appropriation~ b .. Cong'l'ess in !"ODlf' ,yav "rntifiNl" what was an otherwise unconstitutional act by the Executi .... e, There is ('ase law, i.n lower federal conrts, to the effe('t that Congress a~'wntf'd to the Indo.Chint'S€' "war" by appropriation:-:, draft extensionR, ltnd eognate laws, See, for example,
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OrlandQ v. Laj,rd, 44a F.2d 10:]9 (2nd Cir. 1971) ; Bal.'. Y. Laird, 317 F. Supp. 715 OJ.D.XY. 19'10); Un·itcd 8tatrs Y. 8i88(}t1, 294 F. ~upp. fill (D. ~Ias8. 19(8). But that claim was said to he "unsouml" by the court' IS majority in Jlitcltdl v. Laird, 8 If,p ra·, with ,Judge Wyzan"ki stating: "This oJl1rt ennnot he unmindful of \vbat eyery si:boolbo:,' kno\\'/'.: that in Yotin,g to apprnI-,riate money or to draft JIlen a Congre~sman is not ueees,;;arily approving of the c>()utitluation of n war no matter how spf'Cifieally the approllriation or draft refers to that war. . "\Ye should Hot mllstrue votes ea"t in Ilit,Y and piety aiS though they wert' votes freely ?iven to express ('onsent. lIenee Cllief .J udgp Bazeloll and I agrE'e tha t none of the legislation dra'Yll to the {'ourt's attention may ~erye as. a ntlid a~sent to tbe war." (Parenthetically. I fin(i it odd indePll. a~ will be discu:,sed more fully helow, tbat a lu\vyer ouce an Attorney General and no,,, SecrlO'tary of State can qllotJ-' from the Jiitehlc'll Cll::-:e without illdkuting that tbe ('ourt :".imIlly did not up~ lwld hi:,,: pr)~ition.)
:\or is the EXE'cutiyE' helped, a..- at tim£':<; it i:, asserted, by the SupremE' Court's dE'cisi(lu in Un[t(}d State.'5 Y. Cr[J'ti.'18-1Vri.llhi Corp" 2H9 U.S. 30-1 (193lJ), a eu;-;f' lift en dt(~d for the propo'sition that the I'resident is the sole organ of _\11leri('an flirei,::!;n affain;. It takes no extended argulllent to show that making ,,-nr, fit the ,er,\' least, is a shared power; and al>:.o thnt tbe Curti8.~-TVri[ll!t case, a:") .lustice Jackson said in the Steel Seizure Case. did not jm'oh'e "thE' qnestion of thE' PreRident's power to act without congTf>:Sslonal authority. bllt tIl(' qne;.;tion of hi~ right to act under and in accord vdtll an At,t of Congre~K" S('Cretar~' Rogers i:'! to he commended for not relying on Curti88-H'right, something that his minion:'! in Foggy Bottom have tended to do in the PHst,
H. The cnnulluuder-ut-dlif'f pow!,,!,..- of thp President relate. SI)€nking generally, to the tactical control of troops in the fie-Id or in the garrisons. They cannot and Rho1Lld lwt be f'xtended to the point ~hat it is held that those powers include the pmyer to commit troops to "dolence whenever the PreRident desires. '111at was not the law in the past, is not tIle law now, and eertainly should not be the law in the future--again excepting the surprise attack and other similar matters on A!llerkan tf'l'ri,ory or Ame-rll'nn forf'e~. (Colllpare ConTin, 'The PrC>f1dent: Office aml Power.'! (-1t11 ed. 1957) \yHh Dickei, "The Constitution and the Wltr," CflYn-1J1Cdtaf'Y, .July 1972, II. 49.)
7, In SUlll. the power to commit the American military in situations such a~ Call1hodia, if they are to be cOlls.idered to be valid under the Constitution, mus.t ha ye expl'e~s Congressional apIJro,al.
1'he Rogerf:l memorandum 1. In testimony before the Senate- Foreign Relations Committee Inst week, the
Sc-cretary submitted a meruor:mdum entitll"{l "Presidential Authority tn Continue r'llitf'(i State", Air Combat Operations in CZlmhodhl." At best, this is a ::;elf-::;enillg dO('uIDent, intelledually meretricious. It jnstifie:, bombing Camliodia bce:lns(' (If Article 20 of tile Vietnam "}lea('p" agrc(,IDf'llt (If .lannar;.-' 27, ]073 and under tlll' l'ommHmler-in-ehief fJ{lwers of the Prpsillent. That simply is not enougll, as lws been sllO\vn and as will be umplifipd below.
=!. It of ('ourse is a pure "hoot;;:traps" argument tn point to a Pl'('sidential agreement (that of .January lfJ73) and use it as a ba:-:i:;; for further actioll. lindf'r 110 eireumstnnce:,<, and certainly not here, cnn the EX(!('uth-e point to f-lomething he has dOlle in the past aR authority for ('OntillUing to do it (or something similar) in thr' future. Any first-;rear la' .... studpnt know:-=: better than that.
3. 1[r, Rogers. as is the cu:,,:tom of lawyer,,; in and out of government, quotes JIitehell v, Laird out of context. He implie; that .Judge V;yzanski would lL{lld tbat the- Pre.':ident acted properly. Emphatieally, !lowen-r, .1udge "'yzanski and theCourt of Appeals did no such thing, as a full qnotation from the dedsion jndicates (tb(' italicized Ilortion is t1at quoted by Rogprs) :
"Yl't it tlo(':-> Il'lt fdllmT that plaintiffs lll'€ entitlea to pre,ail. 1Ybt'1l on ,lanuHI'S :20. HIOO Pn'si{h'nt XiXOll t.ook officE', and ,,'h('n on tIlE' ;.:anle or P"E'Il lafpI' datE'S th(~ other indiYidual defendants t.ook their prt·sent offi("e~. th~y "-er.e facE'd wifll a belligerent situation not of their <:reation. Obviously, the President could not properly execute tbe- dnti('~ of hi~ office or hi;.: req)ollsilJilit~- a~ COll1mlmder-inChipf hy ordering hosti!itie:, to cease on tbe ver~' dfi~· he took officE'. Even if his predecessors had eXf""€etled tlJl'ir (,()Ilstitutiollill <'tuthority. President Xix-on's duty ditl not go h('yond trying". in goou faith find to the- t)('~t of his ahility, to brln~ th ... war to an end as promptly as "was. consistent with tht~ safE'ty of tlW:"lE' fighting and with a profound cmwern jor the durable interests (Jj the na«iol1-itsr defense, filj h01'lor, its mm·ulity.
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"Whether President Xixon did so pWl'eed is a question \yhkh at this stage in history a court is incompetent to ans\ver. A court cannot procure the relevant eyidence: SOllie is in the hands of foreign goYernments, some is privileged. Even if the necessary facts were to be laid before it, a court ,vould not :,:ubstitute its judgment for tbllt of the President, who bas an unusually "vide measure of dl:-:~ cretion in this area, and who 8bould not be judieially cond€'mned except in a caoSe of clear abuse amounting to bad faith. OthenyiJ".e a conrt would be ignoring the flelkades of diplomatic negotiation, the inevitable bargaining for the best solution of an international contliet, and tbe scope \vbieh in foreign affairs mu . ..;t bE" allowed to the President if this country is to playa responsive role in the coundl of the nations.
"In short, we are fa('('d with what has traditionally been called a 'political que,stion' whieh i~ beyond the judil"ial power conferred by Artlde HI of the CDited states Constitution. And on that ground the complaint WitS properlr dismh;sed by the Di~t.rict Cuurt."
It can readily be seen that Mr. Rogers was ill-advif':ed to quote from the Mitchell case. That he did so indicates the ob.ious: There is no case law, or any other law, permitting the bombing.
4. 1\Ir. Rogers, as is the habit of Execntiv~ Dppartment lan-rers, carefull;\' ()mitA the {'onduding phrase of Article I, SE"Ction S, CUmse lR of the Constitution. For to quote that would be an admissj(m that Congrf'::;s, clearly and indubitahly, has power to make all laws "nece,,,s,uy and proper" both to carry out its own eXprei'l8 powers but also "all other power::; ve:",ted by the Cunstitution in the gov~rnment of the lJniterl ~tutes or in any department or officer thereof." Surely the President i~ an officer of the government and the ExecutiTe Branch a "departmellt" under that clause. 'Yhy do Executive Branch la"';rers persist in reading that pllrt of the Constitution ()Ht of the funflamentalla"'?
5. To maintain, ns does ~Ir. Rogers. thHt the argument that the CamIJodirm bomhin,g is ullC'onstitutional means that the "COI1~titution .. contains nn automatic self-de~truct. llwdanism desi~led to destroy wbat hAS been so Il:1infll11.~ achieved" is the pur"''''-t type of sf'lf-ser,ing statement. ",'hat bas h('en ";?() painfully .achiend" under the Constitution is the best effort yet made by flllwkind an;nvhere to have a re:-:pon~ihle and accountable government. opnatin.2' um1f:r tho8(' extvrnal standard~ called law. That we are far from Hchie,ing ::;uc'c('s,,"- in meeting that ideal doE'S not mean thrrt we should not continue. ''''hat is at iSf<ne hen, is the lJ!'oblem of uncontrolled Exe('utive pow('r. acr·t)untable to nn onf' nnd donded in s('crel'? and dEnrts to hamllOoz~c hath the Con:zress and the pnb!ic.
G. Xowhere (ION' 3fr. Rogf'rs ar~ne the "national inter!':"'t" fli' 11 means of justifying thf' lU)ulbing. Conld that be becausE' it cannot he c1emon:~trated that bomb· ing little hrown UlfOn in black pajamas i~ in t.he national intf'rest? Would this country bomh white F.nroperrll." in this m::mner?
7. Mr. Ho~rs suggests that we a.re trying to ensure that "the political futurf> of South '~ietn[jm should be left for the South Vietnamese pe0ple to decide for thell1~f>ln:,s, frf'e from outside interference." Hayen't we come too far to be gullf'Cl any lnn;!f>r bY' m;serti()ns to at the American interest in Vietnam is in the :-.elfdetermination by the Pf>OlllE' of tbat. country of their own government? DoC's ~,rr. Rogers (,onsidf>r ME'mherf' of Congress to he fools and lllf'mbers of the public to he more than fools. comnlet.('1v tflken in bv s11('h c;tatements? And even if his f':tatenwnt is takf'1l at fl1['e v,ilu€', then IHe \v(' 'not doing- prf'cisely what he says should not be dOllf'--interfering with the riglit of tIlt' Routh Yietnnmese ppoplf~ to ded,le for th('m~eIH's? \Y)mteyer thr,> an1".,","er one .:.:In'8 to tho~e Que.::;tions, ::;Ilrely we are entitlf'd to lll(rrf' from a Sef'l'etary of State than ~u('h nn ob'inu,.:;ly inadequate justific-ation of llTe~idential nuthority to ('ontill110 tJOmbing. If that i~ all the Stflte Department can prnnur'p, they "hould either jire their lawyers or stop the bO!nhing-or bnth.
Conclusion If (Jne spl:'nks of ra,Y po\\'fT, then the l'r('si(lrnt 11as it: hnt if one speaks oflf'gHl
authority, then he Lloe::; not. There is no mincUc ground with respt:ct. to Cambodia today.
A final word: Congres;>. ('an stop the PreO'ident, for Congress ha:o! indubitable power to cut off funds. totally and cOl1lpl .. tely, to the entire military adventure in Jndo-China. It should ha.(> done so Yf'ar~ ago. It can do :"'0 now-if it has the gut and the "taying power to stare down a Pre~ident who is making the most eomplc-te g-rab for actual p(nyer of go,ernance in American Jlistory. I suggest that. insofar as Camhodia i~ (:oncerned, the time to stop that is now. I suggest,
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further, that other exercises of excess presidential power, such as in ';executive llrivilege" and impoundment of appropriated funds, be halted no,.". If al10wed to continue. it \yill be too late------and Congress indeed will be a poor, pitiful, helpless giant as compared with the Executive.
Mr. X'x. Mr. Bingham. ).fr. BlxaIIx:vL Thank YOU, ~fr. Chairman. lIfr. Chairman, you an;! 2Ir. Hamilton ha"e done an excellent job
in questioning. At this time I appreeiate the offer but in the lnterest of time I will ask no que~tiulls.
~lr. NIX. xII'. llyan. )11'. HYAN. ~Ir. Cha.irn!nn, I ha,~e only one question of )fr. BI'mH:Ol',
or perhaps Professor )'fIller. The point that you rnjsed last-::c\Jr. Drmver answer first. I concnI' with :.\11'. 1Iiller's comment that jt is less constitutjonal
than it is simply the Tight of the people as a result of whateve,r mandate he choose~ to believe he has as a result of un election. But I think that since there is such a heavy base for arguing from the. legal point of view that I dOll't haw I would like to ha\'e Mr. Brower, if he would, give us some If'~al vie\vs on whnt he, thinks he ,vo-uJd have to advise tIle President if the Congress were to take any particular action ,yhich might 5ay, "stop the. bombing~~ or "you are in vjolation of the law pas5ed by COllgreS::l.~' 'Vhat kind of [!.etion could the Congress take which would lead you to odvise the pl'('sident that he would be in violation of the la;'" if you continned the bombing? Fo!' example, would the passage of the amendment which is up tomorrow, I believe, to \vithdraw the funds thflt have been requested for the continued action in Cambodia, force )-ou to advise the President that he no longer h,lS the power, in yonI' mind? Is there any other action that the ConQTe5S could take )\,-hich \VanIa lead YOU to advise th8 President t,lmt he no longer has the authority to do so?
:\fr. rR~~nYER. Congressman Harrington and I were brought up in a t.radition at law school that good. law:vers don't give opinions on clocun;ent8 tlley have not seen. To be pl'e~i;:e I would have to knmv the circlUT!sta!lc('s and the amendment specifically invo1ved. I am ft·ankl.v not. SUIT e~~actI;l \yhat it is yon aTe referring to in terms of tornorrOT. Is that the question of transfer anthorit~T '?
)fr. RY.A~. There is an amendment which takes awny the funds for the continuation of military u('tion in Cambodia.
~rr. Bno,,,,R. 1'e1l. I would simpl,' have to see the text of it and understand it in context. Ob-douslv, Congress has-
~Ir. RYAK. Assuming it was clear pno-ugh to indicate that the. Congre.ss' (lesire was not to spend money in that particular action, -in thr.t particular functiun. X my supposing that language is clea.r and it is drafted by attorneys snch as yourself ·who are competent and so on, what would vour vJews be ~
])11'. BROWER. 'VeIl, by the definition contained in your ques+ion the law is so clear it -wQuld not require interpretation by me, and that is ''Ihy I say I think YOU have to see it--
)tr. R~A~. You 'mean the Prrsident c(:.nld just read it and do it and vou -would not have to advi:::e him ~ " }fr. Bno,vER. You are posing a quest~on which presumes :1 pie,ce oT legislat.ion as to which rNlsOIwble lawyers could not differ, and if it is an open-and-shut case it is un opcn-und-shut case. Now I am inclined
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to think that. "TI"e may not be eonrronted with an open-a.nd-shut case. Clearlv COll!:!:ress has t.he authority and has exerciseo the authority in pas't lq:~l~'latin>, nction to place ~~ollle restrictions in some circllmst~lnrE'S on ,,,hat military forcp can be used in \yhat "Wav and where l
antl I lwye eitel1 the prcH'ision with respect to Cambodia with which the President 18 complying.
Xc,,· some"whel'P l/phn'Pll ,,,hat. ('ong-ress cleurly cannot dOl sl1eh liS inte-rfcl'e ,rith the Pn·sident's autho)'j'ty as COlll171UU(ler in Chief, are some an-'HS by 'which there may be honest. dispute', I would simply have to spe ydwt the pl'P('isf' provision is to give an opinion.
)Ir. Ry.\x. Befort' I ask )(1'. )lil1f'1' to ('omment on what YOU sflid, mny T fisk if jll tIl(' l:tw-alld ,'-"2 arc ('onfining oursf'l'n~'s to ~-ollr rolp a:-:; an expert-if tIlE' role of the COll1l1lHwlf'l" ill Chief proceeds f1'om-T heliE"f'; it is article ;3 "hich S:lyS that the Congress should have the power to dE'clnl'P Wit r.
Jfr. Bno'i\"ER. That \HJUld jw arti('le 1. section 8. :\Ir. n,YAX. Yes: n rticle 1. Rig:ht. And it says the Congress should
hayp the POWCl' to (l('clare war. Are there any conditiolls of judicial derIsions or tll1thol'itie:3 or sitllntiollS "\...-hich YOll can think of which indieate t.hat the power of the Comnwndf'J' in Chief comes froIn the power of the COllg'l'eSS to df'('lal'e \yar: that until there i3 a war there is 110 ComIllander in Chief in anY killd of mil ita ry action as such?
:\f r, BROWER, X 0, In fact, I think the contrary'is quite clear hecause thp hi~tol'y of tllP dPlmtes in Philadelphia made qnitc clear. I thinkso ('lear that even Pl'ofpssol' JUillpl' would ,U!TE'f' wjth thi~ Rtatf:'mentthat while Congrpss has the power to declare war the President as Commander in Chief in the absence of the declaration of war has the power to apply those powers to resist sudden attacks on the United State~"
"'fl". RYA". Attacks on the. l~nited States-I don't think I asked that, )[1'. BROWER. I nnnerstood von to ask wlwther the PresidE'ut had :lln"
authorit~v as Commander in~ Chief independent of a declaration of war, and he does,
Mr, RYAN, "1.11 right, j)fr. 1Ellf'r. would vou comment? ~Ir. M,LLER, I don't think that ~Ir, Brower has any cases because
there arPll·t. any. Of course the President has power as~Commander in Chief. It. is nn llndefine.d power, it is self-defined by the President. It has to he read ill connection with the two powers of Congress-one is to make rnks and regulations for the Armed Forces. I take it that the Commander in Chief is a member of the Armed Forces, so there is some sort of a PO\yc-r there that the. Congress has.
Second. the executive departmf'nt lawyers also forget the second part of article 1. section 8, clause, 18 that says that Congress has the power to make rnlC'~ <lnd rcgulations to carry out the foregoing powers~ and an othrl' po-wers granted by this Constitution to any department or any officer thereot: That is a paraphrase of it. They often forget it,
I heard the Deputy Attorney Gem'ral speak a couple months ago. Hp said that if you take that literally that me,ans that you are nlaking the President the chief clerk. 1Vell, my answer to that is that if you don't take it literally, then you are reading it out of the Constitution.· The powers of the President have to be read in the light of the Con-
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gre:;:s' power to make all rules and laws necessary and proper to carry ont all his pmyers. That I think is the. thrust~ sir, of the Supreme COlll'fs tletisioa ill the ;S'teel Seiz-ure. casE', 20 or 21 years ago, when the ('cr~T't ;::rrll('k c1nwn President Truman's seizure of the stceJ mi1ls. Chief .rustle€' Yill~()ll ns(~(l (\llllo~t the same Inn.\.!IlH£re. He said. "Y011 are. making tlip Presir/pnt a 111('8:';(,11,2:C1' boy." Th~ Slipl'f'lllP, COllrt didn't 'YOlT~T ~lbout. that. He is not a me58C'nger boy; he- has a lot. of pmvers. But, it 13 a ~hal'pd po",Y(,l'. "~hat this Pn~:-;i(h~llt nlld previous Pl'f'si(lents want. and particularly in modern t.imes, is gm"el'nment by executive fiat~ by PxC'cutiYe deeree, and that I think is an intolerable situation under the Alllcrican ('onstitution.
!Ir. Ry_",. That is all I have. :\1r. Chairman. ~Ir. X IX. )11'. Riegle. ' ~Ir. RIEGLE. Thank vou. Mr. Chairman. ~1r. Hummel, as f reconstruct some of the testimony earlier it
seemed to me that the legal argllllents that the administ.rative repTcsrntative3 prese,nted, while I (10 not agree V\ith~ but on that basis, it secms that it is North Vietnamese participation in Cambodia that we are striking against. In otheI' words it is their involvement. in Cambodia that has caused the bombing. Am I correct on that point, that it is not really native Cambodian insurgents that we are trying to blow nut of cxi~tence, it is that part of the force on the ground which is North Vietnamese.
~1r. HQIMEL. That is the major factor, yes. Mr. R,EGLE. 'Well, I mean I would assume that we would stop
bombing if that factor were gone. Is that incorrect! ~Ir. DOOLIN. Mr. Riegle, if I may on that point, if the X orlh Viet
namese were not involved in terms of eadres, weapons support, the insurgency would be well within the means of the Republic to handle and I think we would have negotiations on the cease-fire.
~Ir. R.TEGLE. You nmv be COrl'Pct. There i" no way we can know that before the fact. In other words there is no proof of that.
Mr. DOOLIN. We do know that the Khmer insurgents and Communists do not have a.n indigenous military capability that is anything near that which is required to carIJ.7 out the present insurgency.
111'. RIEGLE. So what you are. saying then, that is your belief. If the North Vietnamese were to withdraw and we were to find that the insurgents were able t.o continue on their own, is it likely that we would bomb?
Mr. DOOLIN. I would sav under article 20 then it would be left for the Khmer parties to work out among themselves.
)fr. RIEGLE. Then you are saying it js the policy of this administration to bomb or is it not dear?
Mr. DOOLIN. I think it is quite clear. Mr. R,EGLE. Do you think it is clear, Mr. Hummel, that we would
not bomb in that case? Mr. HC'DIEL. I believe that to be the case, right. )11'. RTEGLE. Then that seems to say that the Xorth Vietnamese are
l'E'any the prob1em. and if they are- i,he IJroblem it might be possible to I:'xtend th~ rationale that vou havp o:li'el'E'rl us. 'Vf'· might resume. the bombing of Korth Viphlflm bp(,HUSf' ('learly the manpower and l'CSOlll'(:E'S nI'(' coming from X ol'th Vietnam '? Is this right?
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)lr. HODfEJ.. The President has addressed this subject and other administration spokesmen have also addressed it. The language the:v have used is that we cannot tolerate idly the North Yietnamese actidties that might destroy this fragile peace throughout Vietnam. They ha,~e not saia speeificrrlly ,,,hat actions might be taken.
~fr. R,EGLE. So the threat of bombin,!! X orth Yietnam is clearly there and whether we exercise it or not I conclude. from what Yon have said that :'ou are putting them on notice that there is that kine1 of jeopardy if they continue to be involved in Cambodia.
)Ir~ H~DIEL. Adnlinistratioll offieials have not u3C'd the word "threat," Lut a good man-v other commentators have used the langunge that you have ll.sed. ~
)li·. RIEGLE. So there is the possibility thut we may bomb Yietnam again? There is that possibility?
lIfr. HDDIEL. I cannot speak to that possibility at my level in the Government, 1\1 r. Congressman.
~Ir. RIEGLE. So 1ve can rule it out? Mr. HmnIEL. I would say it could not be ruled out. l\Ir. RIEGLE. So it is a, possibility? In other words if Y011 are not pre
pared to rule it out. it seems like we hasc to talk to each otheT from behind these screens and that is unfortunate. But. rlS long as you are not prepared to rule it out, and obviously the tone of that Presidential statement that you referred to is threatening. there is the possibility that we may start bombing: Xorth Vietnnm again.
1\Ir. HD].orEL. I am not prepared. nIl'. Congressman. to push the language that administration officials have used bf'yond what they haye in fact used~ and you arc asking me to draw inferences.
Mr. RIIGLE. Our job is to push it. ~Ir. Hor:uEL. Yon are asking me to draw infcrcllces that fmnkly I
am not anthorizf'cl to rlra"'\\ in public session. 1f1'. RIEGLE. Let me tell ,ou ~hat I conclude from what, 'VOll haye
said thus far and that is we would consider bombing X orth ~'Vietnam and using the same justificat.ion that YOll have given us for the Pr('sldent to make those kinds of unilateral decisions-to bomb where he wants and \vhen he ",\\fmts.
If it were later to develop that "hat "'\\c "IT"ere bombing in the way of supplies jn X orth Vietnam were suppJiE'S that originated some other place, name.ly the Soviet Union or mainland China 'which is where a good part of these supplies haye come from. then yon could ('xtend that same argument to say that t.he President could moye right. hack up that pipeline and bomb there if he should eyer reach th:J:t point of persomd judgmeEt. I might. not agrf'1? with it and you might not rrgree "IT"ith it find no one in the rnitec1 States might ag:ree with it but jf he should decide that on his own then he is authorized to bomb those countrips.
"'hat I want to know is this. Based on what YOU hale said today. docs not the Pre,;;:iclent of the -Cnited Statf's ha1;e~ according to YOlH' legal brief~ the right to decide t.o homb the Soviet Union tomOlTOY\
morning? I mean i3n~t that the logical ext.ent because if it is not. then tell me it is not.
1\11': BRtH\"ER. Thnt depends what the circumstances are tomorrow mornIng.
~lr. RIEGLE. That is exactly right. So you cannot tell me it does not mean that.
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:\[r. BWl,,",EH. I think the point is that and I think it is misleading to dwell on the word "possible". I think you have to determine what is possible. Legally it i, an option that is open to the President of the L:nited States to bomb North Vietnam. Now that is a legal fact \yhethel' ::ou Or sorneone else. judges it as pos:::ible, he is going to do it as an indi yidual judgment factor.
:\11". RIEGLE. That is very important and I am glad yon put it that way. You volunteered that according to administration doctrine the President does have the legal authol'it~· to bomb Xorth Vietnam. Does he at the ~ame time have the legal authority then to bomb any other place? Can he bomb the Sm·iet Union?
~Ir. BROWER. That depends upon the circumstances at the time. I call tlns\yer the question \yith respect to NOlth \Tietnam bec.ause, we a 1'e familiar with the concrete legal and factual situation with which We are dealing. Now you suggest that the President unilaterally is going to decide that, or decided that.
~Ir. RIEGLE. ~ o. I am not suggesting that at all. "That I am asking :von is the e.ste·nt of the legal justification that you presented us. How hroad. ho\v far does it c~ien(l? "11at YOU yo]unteered to sav to us is that the Presi(!ent today has the lei!af ri~ht to bomb ~orth"Vietnam if he should mnke the decision to do so. I :lm willing to the,n conclude in mv own mind that if he \"ere· to deci(le that the Soviet lInion was guil(r of t.he same misbehavior or nliscondnct that he might find North Vietnam~ or in this case Ca.mbodia guilty of that and he wouJd then fecI as if he had the legal basis to bomb in the Soviet Union. If that docs not follow. then I vmuldlike to hear why it does not.
~1r. BROWER. 'Ve arc dealing \vith entirely" different situations~ and YOU have to deal on a case basis. It is not necessarily what I concluded ,vith respect to North Vietnam. The study ordered. by the Committee on Foreign R.elations across the way. and prepared by the Library of CongH'ss. expEcitl;v 8[(\'S that thel'e. is no haI' to the President authorizing" bombing ill X mih Vietnam or Laos. That is just a fact with which people seem to agre.e,.
)fr. Rn:GT.E. 'Yhflt I am sn~'ing is that that le.gal basis you presented to liS is a jU3tifi('ation for the President to bomb anywheTe.
~Ir. BnowEH. X 0, that is not the casp. Exactly the point I am trying to make is the opposite. You hnxe a finite concrete situation in Indochina \'O'here there, is a very specifie an(l elaborate. ::1g-reemf'nt in effect to which North Vietnam is a party as well as the TTniten Stat.es. I am saying undrr the whole complex of tl1is situation the Librar:v of COll
gress has apparently concluded, and I concur, that it would not be a bar to the President should violations by Korth Vietnam of the agreeme-nt of .January 27 "warrant bombing- Xorth Vietnam. Notice I don't say he is going to do it~ nobody said he is going to do it. I simply said as a legal faction it is an option, it is up to you and the others to determine what is possible.
1\11'. RIEGLE. I think \ye discussed this point. as much as is use.illl! so let me raise a separate question. One of the thing-s that deeply coneerns me is the quality and accuracy of the President's information on what is actually happening in Cambodia and Indochina. I am not making this point to relate it to Watergate, but I think there is aD obvious relatIOnship here and that is that the difficulty any President has-whether it is Johnson or prior Presidents, or future Presidents,
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to g-et good, ac('urate, complete, T"ali(L up-to-date. information. There is no case that I am familiar with in the history of tIl(> ('ountTY -wllE're a Pre-:;1ide,nt WftS so SllC'C{'ssiully kept in the dark' abont act.iyities undertakpll bv neople elo~st to his administration.
If I think thf>TI about. information fimY and tllf' extent to whiC'h the Prpsident mayor rnav not h? "Tell informed fiB to w-hat- is aoing on, and I transfer that to the sHuntion in Southeast A~ia, it is ~pn-'- ensv for me to see how difficult it is for a President to be certain that lie has accurately balanced information from the field.
I have been out then". I suspect you have been out there tr:ing- to assemble. a ('ohrren1. summary of where things stann at anv point in time. It is ..... ery difficult. vVe suddenly realize,l for cxamnle that homhing was heing done in North Vietnam that the Presifjent di(]n't authorize., and didn't. eT"en know about. So ,,"p hnxe sperific CflSI?~ w]1Pre
thl? Presiil.ent him~E'lf (1idn~t know what ,,""as goin,g on in Tnrlol"hina. 1>1mt I want. to know is how can we be SUN' that the flow of infor
mation from Indorhina. and t.he hasis on "hi('h tlwse (leri~ion~ are bf'ing madE" is better 10.000 mile-=: away t}WTI it is in t.he Ol::;:P of f'Y('!'y
thing we are sE'f'.ing rf'latf'd to "Tatergate, wl1i('h inyo1ypd people th;lt you knO\Y in the next offirf'. Quite apart from ,"dwtlwl' ~on 1':"ilnt to arQ'llP abollt the power of onE' man to homb or not is the qUf':;:.tioll whether that man has any reasonable ('han('(' of getting competent information llpon wllirh to ba~f'. t.hnt derision. I rtm dpeply ('ollcernpd as to whether that kind of information exists.
lVJwt assurances can :vou give. the, 8ubcommittC'P that the information thnt is coming in is complete and accnrate thus enablin~ tho~e kinds of iudgments?
l:fr~DOOLIx. ~fr. Rieg-Ie. if I mny on that point. the hnrd inf(1],lllfttion that we recrive on the sitnntinn in Camhorlin is. to he perfect l:,,~ candid, not as complete as we wOlllo w1sh. This is one to a nnmhl'l" of fuctors, one· belng t.he fact thnt we ha~e relati-vel:v ff''' peoplp in tJw country. Now onr attaches do traw'}, they 00 providf' infonnation, but parts of that country. as yon afe wellawarl2. are denien to all frjPJlrlly forces. and t.he Cambodians themselves do not have as complete information as the;r would wish on achdties for pxample in thp !\ortheast.
I think onE' example. of the. judicious application of our air effort in Cambodia is the fact that "e are turning down approximatelY 40 pere-ent of t.he requests that we receire that are validated by the Cambodian general staff. On this point, Mr. Chairman. if I may. if the session is going to run short today, I would be plf'ased on lwhalf of the Department of Defense to appear at your cOTIYenience. ann answer any further questions on our activities there and ('ounter what I consider to be an unwarranted slur on the part of Mr. ~Iiller that we arE' ino.jscriminately bombing yellow men in black pajamas.
:Mr. MILI"ER. Brown. Mr. DOOLIN. It is just not true. Mr. NIX. ~fay I say this t{) the request you made. Gnquestionably
you will be accorded the opportunity to cDm." in and offer such testimony as you deem to be ordered. It was the mtention of the ChaIr to recess thIS subcommittee subject to the call of the Chair, and I think conblCt your department Rnd Rsk you to return Wednesday of the commg week at 2 o'clock.
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Mr. DOOLIN. Thank you, Mr. Chairman. Mr. ;-'~JX. Would that be agreeable 1 Mr. DOOLIK. Yes. Mr. XIX. Thank you. Mr. RIEGLE. Are we adjourned or about to adjourn 1 ~Ir. XIX. ,Ve are hoping to do so, so that we may answer this quorum
call. Mr. RIEGLE. Might I make one request for data that the "itllcss
would bring back with them when they come. and that is the complete record of all American personnel or Ainerieall financed personne.l thrtt are involved in this conflict.. This should ('over evervone in Cambodia. whether they are Cambodians, Cambodian natiOlials, third ('omlt!',Y
nationals, or operatives from outside the connnes of Cambodia. In other words, who is involn'd in these Lombing l'1~ns, ana wherp n1'(' they coming from?
I think one of the difficulties we have here in trying to exercise allY kind of partnership role is to underst.and who is there.
Are they CIA people '/ 'When you say that we turn down 50 percent of the requested bombing runs, what is the basis of that inionnation source? Obviously we hive people some'tyhere that we use as a crosscheck. How many? 'Where are they located?
?lIr. DOOLIN. :!."fr. Riegle, I appeared before the Hou,e Armed Servires Committee on :J\fr. Leggett's privileged resolution in "which he submitted 19 questions asking for information on our activities in Cambodia ann Laos in 80me great detail. We answered every question completely in open session. I understand that a print of th~t transcript will be a,ailable to all ~fembers of the Congre.ss before tIll' 'Vote to~ morrow. I think that will answer your question to your ::;fttisfaction.
:\Ir. RIEGLE. Thank you, Mr. Chairman. :\lr. NIX. Thank you. ),1:1'. I-Iarrington very much desires asking a great number of ques
tions. lTnfortllnately, the. time has run out. on us. I will. of course~ get in touch with the witnesses to the end of having- a meeting on the day and time indicated a mOffii?,nt ago. So at this time the meeting: is recessed subject to the call of the Chair.
Thank you gentlemen. nVhenmpon, at 12 :18 p.m. the subcommittee adjourned. subject :0
the call ofthe Chair.]
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LS. POLICY AND PROGRA~iS IN CA1IBODIA
THURSDAY, MAY 10, 1973
HOUSE OF REPRESENTATTV"ES.
COMMITTEE OF FOREIGN AFFAIRS, SUBCO)fMITI'EE ON ASIAN AND PACIFIC AFFAIRS,
WW3hington,D.O. The subcommittee met at 10 :30 a.m. in room 2255, Rayburn House
Office Building, Hon. Robert X. C. Nix (chairman of the subcommittee) presiding.
:\fr. NIx. The subcommittee will come to order. X ow the subject matter is the same-the situation in Cambodia. Yesterday We heard from State Department and Defense Depart-
ment witnesses as to the President's constitutional authority to conduct bombing raids in Cambodia. It is their position that the President as Commander in Chief and the Chief Executiye Offircr of the Government has the power to decide what is required in the matter of national defe.nse" ineluding Cambodia, with Congress having the right to enact legislation restricting such activity.
"lVe will hear from witnesses today who agree with that point of view and those who do not.
X ext week we will have the same team of Government witnesses back for further questioning since our hearing yesterday was cut short by the Democratic caucus. There were members who would haYe liked to ask further qlle4ions. "lYe also h"ve not had the opportunity to quest:ion reprpsentatiYes of the Agency for International Development. There win be questions for ~Ir. Dillon who represented the Oflice of Interllational S('cnrity Affairs of the Defense Department. Our hC"aring will be held on Thursday afternoon: ~fay 17~ 1973, at 2 o~dock in room 200, R.ayhul'n Building .
Xow I wa.nt to particnlarly ",yelcomc and express our deep appreciation to Senator Gold water for bejng here today.
You may proceed, sir.
STATE1IENT OF HON. BARRY GOLDWATER, A U.S. SENATOR FROM THE STATE OF ARIZONA'
Spnator GOLD"1YATEH. Thank you very mn~h, j\fr. Chairman. I want to thank ,on for this conr-tesv: it is one that has not been extended to Ill(', by the S('lwte committee ~s~ I am hopeful that your good example lnig-ht excite :Ul'. Fulbright to the point whcT(~, he "",-ould illYite a fraternity brother to talk.
1 Subseqllent to this appearance Senator Goldwater submitted a letter tn rf'sponse to testir:lOny which fOllows bi~. The letter may be found at the end of this day's hearing (~ee p. 82).
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Mr. Chairman, a little background on this. When I decided to run for the presidency I began to look into the duties of the President and I was most taken by the war powers given that office by the Constitution. It disturbed me because frankly I questioned ychethcr one lllan should have that. hut I came. to the conclusion that that is the "Kay it was \yritten ancl that is the way it would remain until the Arnericall people might decide to make a constitutional amendment providing that. then' '"HtS some other way to approach it. I have spent the last 8 or g years studying this and my legal assistant, ),11'. Terry Emerson. has done most of the basic research and is verY well rounded in this. •
1. THE lXEFFlCIEXCY OF COXGTIESS ACTI~G AS AX EXEC"'[;TIYF.
A. 1Va.shington's trOllbles lcd!1 tlw Co-ntinental Oongress )[r. Ch:1innan~ on .June 20., 1775, George ",Vashington received his
commission as GellPra 1 fUHl Coml11undf'r 1n Chief of the Continental ...::\..rm~T. From that day forward, it "US a constant struggle for 1\rashing-ton tn O\TpI'COlne. the obstaclps put in his ,yay uy Congress.
TI.cqllin:d by his cOl11mission-punctually to obsC'nTe any such orelf'rs and directions-as he. should receive from Cong-ress) then clothed with the pmw'l'S of Ull ('xecutive, YVashington was harassed, second-gucsscll and oyerI'illed on his military plans and strategy throughout the '"'far of Independence.
It "\Y<lS Congrt't3s 'who persisted in continuing an mHlise .. \mericull iw,-asioll of C;1Wl((a long after til{' project \'\flS (loOIlwd to disastf'I': it ,yas Cow:!:l'f'~S who ordel'eu that ~I<1,nhattan Island must be defended to tilt' last .. after 'Yashington had instructed its evacuation, and thcrcby cau8('d the llsell'~s surrender of 2.000 American troops; it was Congress ~Yho first p:o:tal>lished the, Army npon a hnple8s system of lo('al militia \':110 came Hlltl went fyerv month rather thnn furnishing '\Yashingtoll \yith a pC'1'llUment force. ~
It iyas Congress who appointed Gates, recently exposed tor p10tting against ,Yashin,!!ton, as commander for the Southern Department instead of (~re(,ll(,. "ho was \Yashjn~rtoll's first choice. The result \'\as an immediate (lisastr-l'. In his yerY first. battle. Gatps lost the pntire American Army in the South. . .
And, }'es~ it ·'18 Congress "Who mllst be held accountable for that tragedy of Yaney Forge. In Angust or 1777, Congress threw out a mi1itary commissary general chosen by 'Vashington and itself assumed complete charge of the commissariat. Separated from the military orga.nization of the Army, the commissary department suffered a total breakdc..-,"n. The entire "Want of clothing, food. and Llankets .rrrew into tragedy as the cold \lC'ather came on. A prominent military historian has written:
'1'b(' Illll0UIlt of hnrm. cansed by the unl'lise military control u~urped by Congr('~s. can only he meusllred in tE'frnS of the appalling sufferinj!s of tbe American i":oldiers at Y:lllf'Y For~i:', which "'~ashington was powerless to prevent (T. Frothingham, Wnshin;non Commander in Chief 234 (1930)).
There are. :'"omf' in COH[!,ress todav who would have us revert to this discredited ~:vstcm. The'YT propose.' that Cong-ress shall dictate when and where, fnr ",-hat reasons and for how long, the 'C'nited States can wage military Opel'<lt.ions. They would control by legislation how many
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American troops can be stationed in particular areas of the world, and even when United States forces shall withdraw from ongoing hostilities.
B. The framers intended to prevent a rMurrence of the interference TVashin.gton ernperierwed
But, Mr. Chairman, this is exactly the system which very nearly led to disaster during the Revolutionary IVaI'. For that reason it was repudiated by the Constitutional Convention. The Founding Fathers had witnessed at first hand t.he inefficiency of the legislature interfering with military operations. They made up their minds that t~e new Government which thev formed would have a Commander ill Chief who possessed real pow·"r.
This explains why they designated the President to be Commander in Chief. By this decision, Charles Evans Hughes wrote, the framers planned to create-
A union which could fight with the strength of one people, under one government intrusted with the common defense. The prosecution of war demands in the highest degree the promptness, directness, and unity of action in military operations which aloDe can proceed from the executive (Hughes, War Powers Under the Con:rtitution, S5 Cent. L. J. 206, 209 (1917) ).
Thus, did one of the great Chief Justices echo the words of Alexander Hamilton, who wrote in the Federalist Paper No. 73, that-
Of all the cares or concerns of gOlernment, the direction of war most peculiarly demands those qualities ",hich distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in the definition of executive authority.
Therefore, I contend that efforts by some in Congress to seize the Tllucbon of lllilitnl'~- command into the legislative branch runs counte.r to the division of p01yerS planned by the Founding Fathers. If this committee should seek to order the end of all air conlbat opeTations in Camboclia~ it would nulJify the purpose of the Framers to plaC'('. the dirE'ction of "aT into a sillgle hand. the constitutional CommandeT in Chief. c.
11. THE ~L\,TORlTY OF A.1ITHORITIES .il.GREE TIlE PRESID"EKT IS CHAnGED WITH
PRTllARY RESPOXSlliILITY Fon THE X..iTIO~:S SAFETY
~fl'. Chairman, constitutional aut.horit.ies throup'hout our history haye L~een almost unanimous in concluding that the President is vested with an inclepcIl(lent ('(Jlltl'ol and directioll over the nlilitary forces ill a11 situations where he belie-yes the,re is a threat to Ollr country or its fl'e-:,"dc!ll1s. The, notion that the President is subject to the po'licy llirectives of Congress has heen rejected by Jeading jurists time and ~lgai:r:: It is on1y during t~le l~st decad~_ (?I' S?, after the going got tough m. \' lC'tnam, that CO]1st1tlltlOnal renSlOlllsts began changing their mlnds.
In the famous book \",hich first formulateu the war powers of this country. ,Yilliam \-Yhiting wrote:
Congrf-'s"': may l-'lLectually control the military power by refusing to vote SUfJplie", or to mise troops, awl by impeachment of tbe President: out for the llliljt:lry lllovemeuts and measures essential to overcome the f'nem'V-for the general conduct of the ,var-the President is TPsponsible to and co~trolled oy
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no other department of go,ernment C\V. 'Whiting, The 'War Power.,,; of thE' President 82 (2d ed, 18(2)).
As if in anticipation of the legislation nolV before tJw committe~, ,Vhiting added that the Constitution "does not pre:'::cl'ibe any tcrntorial limits, within the rnited States, to which his military operations shall be restricted." Id. at 83. Dr. John Pomeroy, dean of the rniversity of Xcw lark Law School, em'lhaticnlly rejected the idea that "the disposition and management 0 the lund and naval forces would be m the hands of Congress." "The po1ic.v of the Constitution is very differentt Pomeroy instructs. The legislature may "furnish the requisite supplies of money and materia]s~: and "authorize the raising of men" but "all direct management of warlike operations * * * are as much beyond the jurisdiction of the legislature, as they are beyond that of any assemblage of priyute citizens." .T. Pomeroy, An Introduction to the Constitutional Law of the Cnited States 288,289 (1870). Prof. Clarence Berdahl, who published a comprchensi,'e study on the Executive's war powers in 1921, squarely tackled this issue. He concluded: Although there has been l'ome contention that Congress, by -virtue of its power to declare war and to provide for the support of the Armed Forces, is a superior hody, and the President, as Commander in Chief, is "but the exeentin' arm'" .. '" in e,ery detail and particular, subject to the commands of the lU\Ylllaking power," practieully all authoritips agree that the Pre;:;ident, as Commander in Chief, occupies an entirely independent position, haYing powers that are exclw,:h-ely his, subject to no restriction or ('OlltroI by either the legislatiye or judicial depart· ~;~~iS) re. Berdahl, 'Var Powers of the Executive in the rnited States llG, 117
Professor 'Villoughby~ author of a famous multivolume study on constitutional hw~ agreed 'with this position. lIe wrote th::lt the power of the President to commit troops outside th2 ('onntr~· "as u meanS of preserving- or' advancing the foreign int('re~ts Of relations ot the LTnitpd States" is a "di5cretionary right ('om:titlltional1y T"Pstcd in himl and. theI'e.forc, not subjpct to ~ongressional ('ontrol. ~~ 0 "T. \Villoughby, The Constitutional Law of the rnitecl States 1;]67 (2r1 ed. In9). }Ir. Chairmnn, there are many othrr lC'g-~11 sdlObrs whom I could cite as having rf'ached identical findings. The samp theme of Presidf'ndnl responsibility for thp Nation's s::lff'ty runs throng)1 lSO yrars of legal writing-s, I mjght just indicate here that though the Cjuestion hns ncypr been sql1arely re~olved by the Supreme Court. \,""hich treats the. i~slle as n. "political question" outside the cornpetrIlC'y of the jndiciary. Ion I' members of the Hig-h Court ha\"(> clo(']nrcd n concl1rring Opiliion that "Congress cnnnot direct. tli~ conrluct of (milih1ry) campai,zns * * *" Ex parte :\fj1Ji,2nn. 71 lJ.S. 2, 139 (1866). Later. t.he Snl~rE'me Court. affirmed a holding by thE' C01Tt of Claim:::; th:lt. "Con~ ,2'1'("o;;S ('t1ll11ot in tlIp dis,! .. 'l.rISf' of 'rules for the Gm~(,I'nment' of the Army Imn:lil' the il:uthoritv of the Prf'~idcnt. as C('mm~lI~der in Chil'f.~· /{icaim Y. United Since,. 2B Ct. C1.173. 221 (189~). att'c1.16:; FE'. ,);]8 (1897). The Court. nlso has hroaclh~ stated thot the Commander in f'1hl('J provision ~onfer~ lIpon the Pl:esident "such supl'e?Jte and undh·ii/ri/ command as would he nf'CeS30I'Y to the pros('C'ution or a S1H'('!"~sfnl war." [Emphasis adeled.l United Slnie., ": Sweel1Y, 157 U.S. ~Sl. ~S4 (1895). Are we now to CRSt. thIS aSIde as II It \Yf'rr ne,~er wntten? Rat her, I should think, the 'weight of anthoI'ltie3 in ~llpport of Presidentlal
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prerogatives. would place the burden of proof on the other side. Instead of confimng the subject of these hearino-s to the authorit-- of the Pl'esident to continue the bombing in Cambodia I would su(T(r~st. that a very pi'oper subject of investigation would be'a detailed a~'~l\'sis of what the authOl'ity of the Congress is to stop that bOIlluing. "'
III. THE PRESIDE:XT, ACTIXG TO DEFEXD A::\IERIC~-\'S IXTERESTS, IS XOT
Sl:"BJECT TO THE COMl'tL\.:·ms OI:' COX GRESS
A. The declaration of war power is not the exc/,,.,ive ·way the United States can wage wa-r
. Certainly, the declaratio~ of w~r clause gives.lis no such power. The Idea that the only way thIS NatIon Clln entcr Into war is throuah a declaration by Congress is a myth. The vast majority 01 warse> are begun without any declaration. This was as well known to the Founding Fathers as it is to liS today.
In the 87 years preceding the Constitutional Convention, 38 wars were held in the Western ,y orld and only one of them wag, preceded by a declaration. :'<Iaurice, "Hostilities 'Without Declaration of ,Val' 12-27" (1883). That the Founders knew of this condition is proven by Hamilton's statement in the Federalist No. 25 that declarations of war were already in disuse in the 18th century.
Thus, there is no question that when the Constitutional Convention narrowed the authority of Congress by substituting "declare" for "make" in the declaration of war elaust\ the Framers understood that there had been and might continue to be many instances in which hostilities would oceuI' with no declaratjon. To argue that no milita,ry operations can begin without a deelnration by Congress is to ignore the historical setting in which the Constitution was drafted, and, incle(',cl~ is to ignore the ensuing 184 years of life under that dOCUllwnt.
It may come as a surprise to many ~\mericans, but there haye been around 200 foreign milit.ary host.ilities in the histor·y of our Republic and only liv('. of them were declared. These incide,nts show a consistent pra('tic~ by which A.mcriean Presidents have responded to foreign tbl'eats with whatever force they believf'd was necessary and tech-nologically available at the particlllar moment. ~.
The incident.s have not. been limited to the 'Vestern Herni~phE're or to small-scale skirmishes. At least 108 of them took place outside thi::i hendspheTc: aIla 53 of these occurred in the 18th and 10th centnrics. One of them: the PhiHppine, Insurrection~ involved the employment of over 126:000 U.S. troops in a v,Tar begun and ended without any declaration of war.
The,se practices form an impressive source of constitutiona1 interpretation of a kind whieh hus real meaning in the courts. In fact., the principle of usage has been accepted by the Supreme Court as ft
determining factor in constitutional interpretation. For example, in United States v. Midwest Oil Co., 236 U.S. 459 (1915), the Court approved the validity of a long-eontinued practice of the President to l,vithdrrrw public lanel from private acquisition~ even though thi,;:;: confiicte,d with [l. contnll'y act of Congress. That practice fixed the constrl1ction~ the Court explained:
Is not reasoning in a circle but the basis of a wise and quieting rulp that in determining the meaning of a statute or the existence of a potcer, wpight f,'hall
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be gin'll to the usage itself---even wben the validity of the practice is the stlbjcC't (If inle:';tigation f Id., at 472, 473 (E'mphasis added)). A decade later the Court again relied on usage as a basis for rejecting congressional control over the Presidency. In holding tha.t Con~ gress could not. shift gears after 73 years of practice and set conditions
OIl tllf~ l'C'Jwynll by the President. of exe.cntive officers, eveIl though such practice had often been the subject of bitter controversy, the Court argued: Xor ('all we cont'ur * * * that when Congress, after full ronsidE-ration and 'With the acquiesce-Dce and long practice of all the branches of the Government, has establi.<:he-d the constrnction of the Constitution, it may by its mere suhsequent legislation re,er>=.e ",nch construction. It is not given power by itself thus to amend the Constitution (Myers v. United states, 272 D.S, 52, 175, (1926)). ~o", )11'. Chairman. these two cases closely parallel debate orcr the military command po\vers. Here there are over a hundred years of practice in ,Yhich Presidents have reacted on their own initiative to any crisis which they believed might present~ or might develop into~ nn unacceptable threat against our national security. :.\Iany Presidents ha \'0 heen denounced and condemned from the floor of both Iiouses for taking these strong milita.ry actions. But Congress has neyer once passed a law blocking or ordering a halt to any of these confli(~ts. Congress cannot now, in my opinion, after fnn consideration and tv'quiescence during almost two centuries, revprse the constrnction of the Constitution which has become so firmly set. To those who fear this concept may give an unrestralned power to the Pl'f'"j(lcnt to do anything he wants. I would remind them that I am ,:;:.praking only of aefrns:h-e actions by the EX8cuti\-e. The Prf'sl(lent cannot conduct a. war of fll2'~ession. He cannot bully another ('ountry ,-dth threats of armed adlon simply because. we do not like its t;l.l'iff l)olicies or the way it g-on~rns lts internal affairs. His constitutional pO\1'cr of independent actjon is limited to the defense of our cOllnh'Yl its citizens, and its freedoms; but he may act vlhenever find ~h(>rpycr in his judgment a danger exists, imminentl.y or prospectiYely, which compels a response on our part.
n. Conqr(88 (a-nnot pas81an'8 under the "llCCe>5i5a1'Y alld p-l'opr:r clause" iI.~h;('h {ntrl'feJ'e -rpith or lhnit the President's 1>..0-1t(";' as Oorarnander in Chief . .
NoV\' ('fl11 Congress act to restrain Presidentinl military operations under the rrllise of the "necessarv and proper~' clause of article I. This notion was considered and rejec.ted over 100 yenrs ago \1'hen -lVhit-ing coullseled Pre5'=ident Lincoln that- Congress is "bound to pass snell la\',s as \'\ill aid him~' in earn-ing into execution his military powers. Thus. congressional measl-lres- under the "necessary and proper" c:1al!Se must be supplemen~~lI'Y tc? and in aid of, the fu~ctio~8 of the Pl'E'sldent as Commander In Clne.f'i they cannot restrIct Ins p:x:erciee of those functions. That. this is thE'. ('orrect inte.rpretation of the Constitution is clear from the decision of the Suprenw Conrt in JJyeJ'8 v. United States, 272 r.s. ;,2, (1926). where the Court held that Congress could not limit the President's discretion of removal of eXPl'_utive officers e;VE'n thou!!h Congress itself created those offices. Chief .Tustice. Taft., writing for the '-Collrt. emphasize!l that C·ongl'f'ss cannot yal'~~ the excr-
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(jse of .the President's separate pO\vers. This~ he said, ",vauld be a delegatIOn Ly the (Constitutional) Convention to Congress of the functIon .of definmg the primary boundaries of another of the three great dnllslOlls of government." rd., at 127.
The. .Cou!"t also too~.a restrictive view of the neee:::sary and proper clause III Kln8elZa v. ,Singleton, 361 U.S. '234, 247 (1960). Here it held the c1i~w~e "IS not a g:rant of power," but merely re~oves uncertainty that Congress may Implement the powers otherwlse vested by the C(JIlstitution.
C. Congl'e88 cannot paN,' appropriation restrictio'n.s 'wlt-ich. limit the President's legal pO'IDei' a8 001nmandr;r /n Ohief
X e.itl~el' can Congress use its power of ,the purse to legislate policy l'estnctlOns oyer the conduct of the PI'esldent~s defeIlEe powers. This ,nJUld be placing "the keys of the Treasury and the command of the Army into the same hands," something that lIadison rejected in the Federalist Paper ~o. 37 as being "particularly dancrerous" and there· fore unintended bv the ConstitutIOnal Convention. ;0
Congress has great pmvers over militarv matters. It controls the size and the strength of the Armed Forces ~nd the amounts and kinds of materials with whir:h we can wage war. Congress can enact or refuse a multitude of emergency powers involving foreign trade and stra· tegic materials. Congress can approve or reject treaties or area resoln· hOllS haying defense implications. If the President undertakes a truly disastrous course, he can Le impeached.
But. once Congress has made its uccieions of how many men shaH be enlisted, or what arms constructed, the President mav station those forcE'S and send out those arms to such parts of the ,,"oi'lll as he determines appropriate in the national defense. The Constitution gives the President the. authority to protect American rights and interests abroad and Congress emillot Ly mere legislation redefine the a1lotment of powers made Lv the Framers.
The applicable" rule is slated in 41 Opinions of Attorneys General 230,2:13 (1953), which took the position that a rider attached to the Drpartme,nt of Defense A1?propriation Act, 1956, "serves to usurp power confided to the executIve braneh."
COllO'rcss mnv. the Opinion concluded. "impose conditions with respect to the use' of the appropriation~ provided ahT"ays that the conditions do not require operation of the GoVerImH~nt in a way forbidden Lv thp Constitution. If the practicp of attaching invalid eonditl0ns to le!:!:1s1atiyc E'nactments were permissible~ it is evident that the constihiiional system of the separability of the branches of Government would be place,d in the graYClst jcopardy." Id. . . .
Here, I think it is important t? note th:~.t at least SIX ]US~lCes <:f rhe. Cllrrent Supreme Court recognlze. the prImacy of the PresHlent In the field of national defense. and foreign affairs .
• Justice Ste,Yart. and .Justice ,Vhite ha\"c commentp(1 that the Constitution endows the President. with "a la.rge degree of unshured power in the conduct of foreigl1 affairs and the mnintrnan('e of our national defense." l.Ye1O York T'hnes Co. v. DHifcd /;' .. <tates. 40:~ G.S. 713, 7:29 (1971). To which Justice :\Iarshall added, "it is Leyond cavil that the Prcsirlent has broad powers by VIrtue of !ll~ prllllttr)' responSlbility for
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