STATEMENTS OF HON. R. WALTON MOORE, ASSISTANT SECRETARY OF STATE, AND GREEN H. HACKWORTH, LEGAL ADVISER, DEPARTMENT OF STATE

The CHAIRMAN. I want the gentleman from Fairfax to note that we have a very full attendance in our committee this morning. They knew you were_coming.

Mr. MOORE. I am very glad to meet Mrs. Rogers and you gentle

men.

The CHAIRMAN. I will state that we were discussing informally just before you came, Mr. Moore, House Joint Resolution 422. We have gone over the first section, and the only question in dispute was a suggestion made by Mr. Tinkham relative to section 3:

Upon the outbreak or during the progress of any war

*

We have had some little discussion about that, and there was an attempt on the part of some of us to explain the reason for that language. Mr. Tinkham, do you wish any further discussion about

that?

Mr. TINKHAM. Yes. I should like to make a statement, now that Mr. Moore is here, that I have already made to the committee. Mr. Moore, if the President is given discretion to wait until after a war has started to declare an embargo he might wait 6 months. That presents a danger. Let us take, as an example, the present situation, in relation to the contest in the Mediterranean between England and Italy. England, being in command of the seas, could come here and get what she wanted or what she thought she might want. Italy would be prevented from doing so because of England's command of the seas.

The President might not declare an embargo until sometime after hostilities had begun. According to the wording of that section, the President could delay doing so if he wished to. It seems to me we should have in this resolution, as we did in previous legislation, language providing that an embargo should be placed upon the outbreak of war; the word "shall" would be better. That is, that the President shall declare an embargo against both parties "upon the outbreak of any war", and not "during the progress of any war." That is my point.

Mr. JOHNSON. The suggestion is to eliminate the words, "during the progress", as I understand it.

Mr. MOORE. As I understand the bill before the committee with respect to the point that Mr. Tinkham has raised, the bill follows the existing legislation which declares that at the outbreak or during the progress of any war the President shall proclaim, so and so. There is no change in that regard from the present legislation.

When that legislation was enacted, it was assumed that the President would not delay in any such manner as Mr. Tinkham has suggested. He has not thought that he had authority to delay, and I can say with the utmost confidence that is the interpretation placed upon that language by the present Executive.

The CHAIRMAN. And the State Department?

Mr. MOORE. And the State Department. He would not believe that when a war actually occurred, he would have any authority to

defer action for 6 months or a year, or 2 years, or any other period of time; but that he would be under an obligation to act promptly. The reason for putting in, in addition to the language, "upon the outbreak, during the progress of any war", is this: That often it is so extremely difficult to determine when an outbreak actually takes place; that is, the exact date of the outbreak of hostilities.

Therefore, it was thought best, as I understand it, by the House and by the Senate, to enlarge the language somewhat in order not to compel an Executive to do what might often be impossible, to indicate the time when there is an outbreak. I think any commonsense view of the matter will indicate the force of that suggestion. You take, for example, the present brawl going on between Italy and Ethiopia. There were all sorts of opinions and suggestions made on the other side of the ocean as to when that war began. There were skirmishes on the border, and a President now, or a President hereafter, looking at occurrences of that kind, might be in extreme doubt as to whether a war had actually begun; as to whether there had been an outbreak.

But when something further occurs, if hostilities become more or less flagrant, and there is no doubt that a war is in progress, then there rests upon the Executive, under the language of the present law-and would rest upon him under the language of the proposed legislation-the duty to make his proclamation.

Mr. MARTIN. If I may interrupt right at that point, what would be the harm, even if there were hostilities, of providing for the prevention of the shipment of arms and munitions? This particular clause applies only to munitions of war.

Mr. TINKHAM. We are discussing the whole thing now.

Mr. MARTIN. As I understand, we are on section 3.

Mr. MOORE. We are on the first vital section.

Mr. MARTIN. That is section 3?

Mr. MOORE. Yes.

Mr. MARTIN. As a matter of fact, we do not send very much munitions or arms abroad. Our shipments are very negligible, as a

rule.

Mr. MOORE. The answer to that would be, I think, that none of us have any desire to facilitate or permit the shipment of the articles specified when a war really occurs. But you can conceive that it would be rather absurd, when there is some trouble going on that does not amount to a war, for some executive to say that war has broken out, and to make a proclamation and set in motion all the machinery that is provided.

As a practical matter, if you can assume as a premise what I have stated, I cannot conceive that any President responding to the desire of Congress, would hesitate a minute when he finds that there is really a war going on.

Let us take an illustrative case that we might all refer to. Let us take the case of the Civil War, when something happened at Fort Sumter; whether or not it was going to lead to a war nobody could forecast, and therefore nobody could say that there had been an outbreak of war, although there had been firing, there had been a surrender of a force to an opposing force.

In an instance of that sort, if it occurred abroad, it seems to me it would be rather silly for the President of the United States to be

expected, just upon that sort of a showing, to say that war had broken out and therefore the law should come into operation forthwith.

Mr. MARTIN. You do not think that we ought to continue to allow the shipment of munitions, so that that outbreak could spread, do you?

Mr. MOORE. I am not arguing that. What I am saying all the time is that when there is a real war that has broken out, or is in progress, then under this legislation it would be the business of the Executive to act, and to act promptly.

The CHAIRMAN. May I suggest this? The gentleman seems to be disturbed about the present war; whether, if others get in, there should be an embargo proclaimed on England or France or any nation that does come in.

I invite your attention to paragraph (c) on page 3, which reads: The President shall, from time to time, by proclamation, extend such embargo upon the export of arms, ammunition, and implements of war to other countries as and when they may become involved in such war.

If there already is a war going on, and if these other countries become involved, it is the President's direct duty, under section (c), to make a proclamation. He is to do it as and when they become involved.

Mr. EATON. The progress of the war would include its outbreak, anyway.

The CHAIRMAN. That is true.

Mr. JOHNSON. Mr. Chairman, this question occurs to me and I would like to ask Judge Moore's opinion, not only as a representative of the State Department, but his legal opinion. The existing law contains language that "upon the outbreak or during the progress of any war *" If this bill amends the existing law by striking from the language of the act "or during the progress of any war", leaving it "upon the outbreak", that would necessarily mean that the legislative intent was that the only authority the President should have with reference to the issuance of a proclamation would be upon the outbreak and not afterward.

Now, suppose the President should not proclaim an embargo upon the outbreak, but should proclaim an embargo later; then some munitions manufacturer would bring a suit, claiming that the President's authority did not extend beyond the date of the outbreak, as indicated by this other law; would there not be raised some question as to whether or not the President had the authority to act after the outbreak?

The CHAIRMAN. The point being that the President did not act at the outbreak; and there might be a dispute as to when the outbreak actually occurred.

Mr. JOHNSON. Yes.

Mr. CASTELLOW. May I offer this suggestion, Mr. Chairman? Would not a change in the language of the present act meet Mr. Tinkham's objection, in this way

66* * * or as soon after the passage of this act as it becomes apparent that a state of war exists."

It occurs to me that would eliminate the criticism offered by Mr. Tinkham and would accomplish exactly what this act proposes to accomplish.

That language would make it mandatory upon the President, as soon as it reached his knowledge that a state of war exists, to issue his proclamation.

That would meet the objection that has been urged against the language, as it now appears in the act.

Mr. MOORE. It seems to me that it is so perfectly clear what the law means as it is now written-and is simply proposed to reenact it-that it would be undesirable to change the language unless there is an urgent reason for doing so, and I cannot perceive any such

reason.

Mr. TINKHAM. Mr. Chairman, may I make this statement? If we retain the language, "upon the outbreak", we give the President complete authority; we give him the option of saying when he considers war has broken out.

If, on the other hand, we say, "during the progress of any war", we give him the right to postpone action indefinitely, and he can base his defense in delaying action on the language of the statute. He need not declare that war has broken out until he wishes to.

In other words, the President has a clear option here. Today no country makes a declaration of war, because of the Kellogg Pact. He can say when he thinks there is a state of war.

The CHAIRMAN. Does he not have to do that, anyway?

Mr. TINKHAM. He can determine when there is a state of war. The CHAIRMAN. But he always has to do that.

Mr. TINKHAM. Yes; he always has to do that; that is right. But once he has declared that war is an actuality, an embargo must be declared at once if you eliminate the words "during the progress of any war." If these words are retained, the President is given the right to postpone that action indefinitely, and he can point to the law as authority to postpone it, whereas our intent and purpose should be that he shall act as soon as he determines that war has broken out.

I have already pointed out, I believe, what England could do in such circumstances in the present situation because of her control of the seas.

The CHAIRMAN. But paragraph (c) controls that, as I pointed out a few moments ago. I do not know whether you listened to that or not, Mr. Tinkham.

Mr. TINKHAM. Yes; I did.

The CHAIRMAN. That absolutely controls the present situation. Mr. FISH. Mr. Chairman, Mr. Moore seems to be under the apprehension that there is no conflict or dispute as to the meaning of these words. There is no use quibbling about this part of the bill. It is one of the important features and has to be decided one way or the other. The public press, even, has taken cognizance of it, and has intimated that the very purpose of this wording that we are discussing is to give the President that power to delay stating when war has broken out, and therefore to delay putting into effect this embargo so that he could, if he wished, permit the shipment of arms and munitions of war to England, let us say, in case of certain emergencies.

We have to face the facts, whether we shall have it say exactly what we want it to mean or whether we want to give the President that power to determine that point for himself.

We do not have to decide that now. We are only asking Mr. Moore to give his views on the bill.

I like the amendment suggested by the gentleman from Georgia [Mr. CASTELLOW] a few moments ago. I think that should be discussed as we go along with our discussion of the bill.

Mr. MOORE. I would like to say this in answer to what Mr. Fish has just said. While we have been studying this question, we have been submerged by views from every part of the country; professors and other students and laymen who are thinking over the subject for the first time, have communicated their views to us.

I have never had any intimation from any of them that the language of the existing statute was open to any doubt at all as to its meaning.

Mr. TINKHAM. Mr. Chairman, I have a communication here from Professor Borchard. I have not read the whole of it, as I have just received it, but he raised that point as the first point of his criticism. And there is no clearer-headed man than Professor Borchard in foreign affairs matters.

The CHAIRMAN. Does he have anything to say about paragraph (c)?

Mr. TINKHAM. I have not read the whole of it, as I have just said but I have read far enough to know that he takes exception to section 3 (a) of the bill.

Mr. MOORE. I know Professor Borchard very intimately and I have had considerable correspondence with him since this study started. It is the first time, so far as I recall, that I have had any intimation that Professor Borchard thinks that there is any ambiguity at all in that language.

Mr. GRAY. May I ask the witness a question, Mr. Chairman?
The CHAIRMAN. Of course.

Mr. GRAY. Will you tell the committee what would be the effect of striking out the word "or" in that first line of section 3 and substituting the word "and"?

Mr. BLOOM. To make it read, "and during the progress."

Mr. MOORE. It does not seem to me that that would improve the section at all, so far as its meaning is concerned.

Mr. BLOOM. If you use the word "and", would not that mean that he would have to issue a proclamation twice; at least, more than once?

The CHAIRMAN. Yes; at the outbreak and also during the progress.

Mr. BLOOM. That is the point that I am making.

Mr. GRAY. It would not leave any discretion; that is what I had in mind. In other words, if, through any inadvertence or oversight, he had not declared the embargo at the outbreak, he would declare it during the progress. But it would not relieve him from the responsibility of making the declaration at the outbreak or during the progress. It would seem to me that it would overcome Mr. Tinkham's objection and at the same time it would give the President some leeway, too. In other words, if there was an oversight at the outbreak, he could make the proclamation during the progress.