argument. But in the original action I think a legal argument can be very well made that it was a very different situation. We were actually attacked.

PRESIDENT CANNOT WAGE EXTENDED WAR UNDER THIS TREATY

Senator CAPEHART. Let us take the Philippines, they are a part of this treaty. Suppose the Philippines were attacked by Red China. Could the President carry on an extended war for weeks and months and years against Red China as a result of their attack upon the Philippines without a declaration of war by Congress?

Senator MANSFIELD. Not under this one, Senator Capehart, but perhaps under the Philippine-United States Mutual Defense Treaty it could.

But can I read this on page 5:

The language of paragraph 1 [of the President's message] also provides for designation, by unanimous agreement, of other states or territories an armed attack against which will result in bringing certain of the treaty provisions into operation. I recommend that you inform the Senate that this provision is to be interpreted as requiring the advice and consent of the U.S. Senate to any agreement to making such a designation.

The agreement of each of the parties to act to meet the common danger "in accordance with its constitutional processes" leaves to the judgment of each country the type of action to be taken in the event an armed attack occurs. There is, of course, a wide range of defensive measures which might be appropriate depending upon the circumstances. Any action which the United States might take would, of course, be in accordance with its constitutional processes.

Senator MORSE. Mr. Chairman

The CHAIRMAN. Senator Morse.

CONSTITUTIONAL PROCESSES NOT A ONE-WAY STREET

Senator MORSE [continuing]. May I be very brief. I think the Senator from Indiana has raised a point we ought to have comment on here in the record.

May I point out that I have always been at a loss to understand why in Congress, when we discuss and consider the phrase "constitutional processes," we always look upon it as something flowing from the Executive to the Congress when, in fact, it also flows from the Congress to the Executive, and under constitutional processes, if a President of the United States follows a foreign policy that, in our judgment, exceeds his authority, you have the power in the Congress of reversal or repeal, so to speak; you have the authority and you have the duty in the Congress of the United States to exercise congressional constitutional processes. This is not a one-way street.

But that the President has the clear constitutional duty to proceed to meet the kind of a problem that the Senator from California raises, I do not think you can get constitutional law scholars to be in dispute. Take his Alaskan example. I think even though scholars that say that the President under constitutional processes must proceed before the Congress, it is the time factor. If time does not permit him to proceed before the serious condition develops, he must do it as shortly thereafter as feasible. That is the theory, and if he does not, then the Congress, under constitutional processes, has the power and constitutional authority to proceed to set aside what the President did, and you will

recall this is no new point of view for me. That is exactly what I thought ought to have been done at the time of the steel seizure. We ought to have either censured it or reversed it because we had a constitutional process duty in that area, and it applies likewise to this type of a case.

THE STEEL CASE DECISION

But do not forget that one reason why I say you cannot possibly cover this in two paragraphs in a committee report, do not forget when you read the U.S. Supreme Court decision in the steel case there are two things the Court did not do. The Court did not in the case even touch upon the powers of the Commander in Chief in the kind of a situation that the Senator from California raises, nor did the Supreme Court in the steel case ever say in one line that the authority does not exist for the President of the United States to protect this country in case of an emergency that calls upon him to exercise his Commander in Chief power.

They made a finding of fact, and the finding of fact was the emergency did not exist, and that is why, with this long constitutional debate going on since our history began, I think it is well that we made this record here, and that we prepared to make the record in debate, if necessary, on the floor of the Senate, but putting nothing in the committee report.

THE NATO TREATY

The CHAIRMAN. I agree, Senator Morse, with you. When the NATO Treaty was before this committee, a treaty which, in express terms, declared that an attack on any signatory power was an attack on all, we had a great, not controversy, but a prolonged discussion.

Senator Vandenberg selected a subcommittee or appointed two or three of us primarily, I think, because I leaned to a rather strict construction of Executive power and not to a liberal one in this issue of war and peace. We made every effort to try to distinguish between the power of the Chief Executive and his power as Commander in Chief of the Army and Navy, the Armed Forces, and the congressional power also secured under the Constitution to declare war.

A REPORT CANNOT ADD TO OR SUBTRACT FROM CONSTITUTIONAL POWERS

We came up with this illuminating sentence. I think it can be found in that report. The sentence was that nothing, nothing that we were holding in that report either added to or detracted from the powers of the President or the powers of the Congress. And you will come out at that end, gentlemen, almost all the time.

That is the reason why I wanted to read in the record the interpretation of the Secretary of State, himself, so that now it becomes a matter of public record, and why I think this is a very helpful discussion upon this point on the merits of the treaty.

I do not see how we could hesitate to go along with it. I know all of the possibilities of what may happen, as Senator Barkley has indicated, but I do not see how we could hesitate to go forward with this treaty unless you want to have the single line of defense against communism in the Far East disintegrate, and leave our shores exposed.

Senator WILEY. Mr. Chairman, I want to express my appreciation to the youngest member on this committee. He always precipitates an argument in which I can get considerable illumination.

THE CONSTITUTION A FLUID INSTRUMENT

I have heard this argument a number of times. I always think of Chief Justice Marshall in one of his very fine decisions where he brought out the idea that the Constitution was not a frozen instrument. You mentioned time as an element, the gentleman from California mentioned facts. To me the law of self-preservation in an individual's life, as well as in the Nation's life, makes it imperative that we recognize that the Constitution is a fluid instrument. The power of the Chief Executive as Commander in Chief is equal to any emergency, and to me that is the answer.

I, for one, feel that the language is definitive enough. That is all I have to say at this time.

The CHAIRMAN. If there is nothing else to be said, gentlemen

THE POWER HERE CANNOT BE DELIMITED

Senator CAPEHART. Mr. Chairman, I would like to say that I think the power of the President is equal to any emergency, but the question is always, how long is an emergency. That is what you are up against

The CHAIRMAN. I am sympathetic with that view, Senator Capehart. I do not think any President under our Constitution can go all around the world and pick out a spot and say, "Here is a vital interest" or "The lives or liberty or property of an American citizen is at stake that requires emergency action."

But happily, I think that the President of the United States is not disposed to take that extreme view in this instance, and while we do not know who else may be President of the United States, I do not believe that we should undertake to delimit a power here which we cannot do to our own satisfaction, because I assure you that if we could have done it in the NATO Treaty, it would have been done.

Senator FULBRIGHT. Mr. Chairman, just for the record, I agree with what the chairman said. I recall very clearly the discussion on the NATO Treaty, and that sentence that you quoted, I think might well be quoted again. I do not think we should try

The CHAIRMAN. That is a very clarifying statement.

SOME RISK MUST BE ACCEPTED

Senator FULBRIGHT. That is a classic sentence. I think it will be often repeated in this committee and I, for one, will not vote for any such restriction in this treaty.

The fears that the Senator from Indiana evidences, of course, there is some justification for them. There always has been; but there is no way to escape the risk of having someone possibly who is arbitrary or ill advised. But so far I think we have avoided that in this country, and we can only rely on our good sense not to elect Presidents who are so unwise or arbitrary or uncivilized as to exercise arbitrary powers under the President's powers, which he does have.

I think there is no way to escape a certain amount of risk of that kind.

Senator CAPEHART. I do not think there is any question but what the President has emergency powers to do most anything, I think the question arises, is it or was it an emergency and, second, how long does the emergency exist.

Senator FULBRIGHT. It is impossible to determine that in any qualification of the treaty, certainly.

Senator CAPEHART. That is the only question I wanted answered. Senator FULBRIGHT. The only way to determine that is after the fact, and we could express our judgment that he was arbitrary. That is the only way.

Senator CAPEHART. I think it is well to discuss it here.

Senator FULBRIGHT. I do, too. I would not mean to have any disapproval of that. I only thought I ought to state my own position on the record.

I want to say further that I also have a meeting at 4 o'clock and a proxy, and I hope we can vote before that. Otherwise I will have to leave mine with somebody.

Senator CAPEHART. I am ready to vote.

MOTION TO APPROVE THE TREATY

Senator MORSE. Mr. Chairman, I would like to have the pleasure of moving that the Foreign Relations Committee recommend to the Senate that the treaty be ratified.

Senator KNOWLAND. Second the motion.
Senator SMITH. Second the motion.

The CHAIRMAN. Shall we call the roll on this?
Senator FULBRIGHT. I suggest we do.

The CHAIRMAN. Let a record be made on this.

Senator WILEY. And let the absentees vote.

The CHAIRMAN. And the absentees, if they can be contacted, should be allowed to vote. If there is no further discussion, we will call the roll.

EMERGENCY STEPS SHOULD BE REPORTED TO CONGRESS AFTER THE FACTS

Senator HICKENLOOPER. I only want to say this, Mr. Chairman: I am in agreement in the main that you cannot describe the kind of emergency in which the President might be called upon to act without prior authority. It is very difficult. I think Presidents have in the past acted in a number of cases by their own declarations of emergency where the emergency did not exist; in fact, it did not exist in the minds of the most reasonable people. But that is a risk one has to take on occasions.

I think it is important, if it could be clarified-perhaps a statement to the Secretary and others would sufficiently clarify our belief-that immediate reference to the Senate or to the Congress was understood here after the fact; that is, if there is some situation where an emergency, where the President feels it is an acute emergency and requires immediate action, and the time is not available to discuss the matter by resolution or otherwise with the Congress, that we make it clear

that it should be submitted to either the Senate or to the Congress, as the case may be.

Now, I will get specifically into what I think was the unfortunate and yet illuminating discussion on the troops to Europe business.1 Senator WILEY. The which?

Senator HICKENLOOPER. Troops to Europe. In the first place, I do not think it was an emergency. My personal view is that the President had no authority, as an emergency matter, let us say, to send the troops. to Europe. If he did send them, or when he did send them, then I think the matter should have been immediately presented to Congress for ratification. I think it should have been submitted prior to sending the troops to Europe. That is my personal view, because I think there was time and there was no question there on the shortage of time; but I think if it is precipitate, it has to be done, that that should be reported for proper approval or authority or cooperation of the legislative body here.

I realize the impossibility of limiting or defining the instances, because the minute you start doing that, then the very things you do not define are, perhaps, the emergencies which will have to be met, and there is nothing in the treaty about it.

Senator FULBRIGHT. That is right. You cannot foresee it.
Senator HICKENLOOPER. It is the very act of limitation.

The CHAIRMAN. It is like the old common law where you defined it for all, and the moment you defined it, some fellow came in under an exception to it; he slipped under.

THE APPROVAL MOTION CARRIED

If there is no further discussion we will call the roll.
The CLERK. Mr. Green?

The CHAIRMAN. Senator Green did not leave a proxy with me. I do not think it is practicable to reach him.

Dr. WILCOX. He has asked to be recorded as absent.

The CHAIRMAN. He has asked to be recorded as absent; we will record him that way.

The CLERK. Mr. Fulbright?

Senator FULBRIGHT. Aye.

The CLERK. Mr. Sparkman?

Senator FULBRIGHT. He left me his proxy. Aye.

The CLERK. Senator HUMPHREY?

[No response.]

The CLERK. Mr. Mansfield?

Senator MANSFIELD. Aye.

The CLERK. Mr. Barkley?

The CHAIRMAN. Mr. Barkley left his proxy to vote aye.

The CLERK. Mr. Wiley?

Senator WILEY. Aye.

The CLERK. Mr. Smith?
Senator SMITH. Aye.

The CLERK. Mr. Hickenlooper!
Senator HICKENLOOPER. Aye.
The CLERK. Mr. Langer?

1 See volume III, Part 1, of this series.