The Special Committee met at 10:05 a.m., pursuant to call, in room S-407, The Capitol Building, Senators Frank Church and Charles McC. Mathias, Jr., co-chairmen of the committee, presiding. Present: Senators Church, Mathias, and Case. Also present: William G. Miller, staff director; and Thomas A. Dine, professional staff member. Senator CHURCH. The hearing will please come to order. OPENING STATEMENT BY SENATOR CHURCH, CO-CHAIRMAN Senator CHURCH. The Senate Special Committee on the Termination of the National Emergency begins today the first of a series of hearings on emergency power statutes, a subject of fundamental importance to the continued functioning of our democratic system of Government. At issue is the question whether it is possible for a democratic government such as ours to exist under its present Constitution and system of three separate branches equal in power under a continued state of emergency. Very few in Congress, in the Executive, in the Courts, or in the public at large are aware that the United States has been in a declared state of national emergency since 1933. Very few are aware that over that period of time the United States Congress has enacted at least 580 separate sections of the United States Code delegating extraordinary powers to the President in time of war or national emergency. These more than 580 Code sections delegate to the President à vast range of powers, which taken all together, confer the power to rule this country without reference to normal constitutional processes. Emergency powers laws embrace every aspect of American life. Under the powers delegated by these statutes, the President may seize properties, mobilize production, seize commodities, institute martial law, seize control of all transportation and communications, regulate private capital, restrict travel, and-in a host of particular and peculiar ways-control the activities of all American citizens. When this Special Committee was authorized to study and investigate the problem of emergency powers in January of this year-it was incorrectly thought that the state of national emergency proclaimed by President Truman on December 16, 1950, in response to both the invasion of Korea by Communist China and the dangers of Communist aggression worldwide, was the only such declaration. However, research by the Special Committee soon disclosed that the United States has been in a state of declared national emergency since March 9, 1933. At the request of President Roosevelt, Congress passed the Emergency Banking Act to meet the economic emergency of the Depression. This swift legislative stroke ratified the President's bank holiday declaration and allowed him to exercise what had originally been war powers in peacetime. This latter delegation of power was based on a provision of the 1917 Trading With the Enemy Act, Section 5(b), which authorized the President, during war or presidentially declared national emergency, to regulate and restrict trade and financial transactions between Americans and foreigners. -It is with the recognition that the Executive Branch must have the authority and flexibility to deal with emergencies, that the Special Committee was created. For it is not enough to state, as we believe correctly, that the Great Depression is over and that the state of economic emergency declared in 1933 should be repealed. It is not enough to state that the Korean hostilities are over and that the state of national emergency proclaimed by President Truman on December 16, 1950, is no longer valid. It is not enough to terminate any given declaration of national emergency because, if past precedents are continued, the President can, at any time he sees fit, declare a new state of national emergency. In fact, President Nixon, on August 17, 1971, did just that. In his message from Camp David, the President proclaimed "a national emergency during which I call upon the public and private sector to make the efforts necessary to strengthen the international economic position of the United States." He cited the prolonged decline in our international monetary reserves plus our threatened trade position, which in turn impaired our security. In 1933, when President Roosevelt declared a state of national emergency, the economic life of the United States was brought substantially under the control of the President. History attests that the country believed that such centralization of authority was needed to meet the grave economic crisis. World War II brought yet another series of crises. Every aspect of America life was brought under Presidential direction by the action of Congress which enacted a broad range of statutes to meet the "total emergency." Only 5 years after World War II, when war in Korea broke out, the enactment of an additional body of emergency statutes took place, authorizing the President to apply the full resources of the United States to the single end of pursuing our military objectives. This legacy of congressionally delegated power to be used by the President in the time of war or national emergency is still with us. It is evident from the study of the statutes made thus far by the Special Committee that, in the event of another war or national emergency most of these statutes would be useful. It is not surprising that some of the "emergency" statutes have become a part of the everyday activities of the U.S. Government and therefore should be recast in the form of permanent law. There is yet another category of statutes which are clearly obsolete and should be repealed. Lastly, there are a few statutes which, because of their far-reaching impact, should be recast to provide the public with protection against possible abuses of power. As extreme examples of this last category, we cite the following: In the context of the war powers issue and the long debate of the past decade over national commitments, 10 U.S.C. 712 is of importance: 10 U.S.C. 712. FOREIGN GOVERNMENT: DETAIL TO ASSIST (a) Upon the application of the country concerned, the President, whenever he considers it in the public interest, may detail members of the Army, Navy, Air Force, and Marine Corps to assist in military matters (1) any republic in North America, Central America, or South America; (2) the Republic of Cuba, Haiti, or Santo Domingo; and (3) during a war or a declared national emergency, any other country that he considers it advisable to assist in the interest of national defense. (b) Subject to the prior approval of the Secretary of the military department concerned, a member detailed under this section may accept any office from the country to which he is detailed. He is entitled to credit for all service while so detailed, as if serving with the armed forces of the United States. Arrangements may be made by the President, with countries to which such members are detailed to perform functions under this section, for reimbursement to the United States or other sharing of the cost of performing such functions. The Defense Department, in answer to inquiries by the Special Committee concerning this provision, has stated that it has only been used with regard to Latin America, and interprets its applicability as being limited to noncombatant advisers. Section 712 is one of the statutes the Special Committee will discuss with the Defense Department as to its present utility and validity. To those who believed the repeal, in 1971, of the Emergency Detention Act was a constructive and necessary step, a remaining provision may be of concern, as it is to us. I quote: 18 U.S.C. 1383. RESTRICTIONS IN MILITARY AREAS AND ZONES Whoever, contrary to the restrictions applicable thereto, enters, remains in, leaves, or commits any act in any military area or military zones prescribed under the authority of an Executive order of the President, by the Secretary of the Army, or by any military commander designated by the Secretary of the Army, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be fined not more than $5,000 or imprisoned not more than one year, or both. The first of these statutes, 10 U.S.C. 712, could be construed as a way of extending considerable military assistance to any foreign country. Since Congress has delegated this power, arguments could be made against the need for further congressional concurrence in a time of national emergency. The second of these statutes, 18 U.S.C. 1383, does not appear on its face to be an emergency power. Although it seems to be cast as a permanent power, the legislative history of the section shows that the statute was intended as a World War II emergency power only, and was not to apply in "normal" peacetime circumstances. Two years ago, the so-called Emergency Detention Act was repealed. However, this statute, 18 USC 1383, which has a similar effect, remains on the books. This statute, of course, may be properly a matter for the Judiciary Committee to consider, but we cite it as an example of one important problem raised by our investigation. We would like to address yet another pertinent question among many, that the committee's work has revealed. It concerns the statutory authority for domestic surveillance by the FBI. According to some experts, the authority for domestic surveillance appears to be based upon an Executive Order issued by President Roosevelt during an emergency period. If it is correct that no firm statutory authority exists, then it is reasonable to suggest that the appropriate committees enact proper statutory authority for the FBI with adequate provision. for oversight by the Congress. At this point I would like to turn to my Co-Chairman Senator Mathias, and ask that he read the balance of this introductory state ment. Senator MATHIAS. Thank you, Senator Church. OPENING STATEMENT BY SENATOR MATHIAS, CO-CHAIRMAN Senator MATHIAS. It is appropriate to explain again that this Special Committee is bipartisan, and, as such it is unique in the Congress: It has co-chairmen, one from each party, and an equal number of members from each party. The committee's bipartisan nature reflects the intention of the Senate to examine emergency powers legislation solely from a constitutional perspective. We want to determine how these powers affect the proper relationship between the Executive and Legislative branches. For this reason, as specified by the authorizing resolution, the Special Committee is working closely with the administration. Attorney General Kleindienst, in response to a specific request of the Special Committee, has assigned members of the Justice Department to work with the staff of the Special Committee, and, we are happy to report that cooperation from the Justice Department has been full and thorough. It is expected that other departments and agencies will provide similar assistance. The first and most difficult task of the Special Committee is to be certain that all of the statutes and relevant Executive Orders have been collected for study and deliberation. At the present time, nowhere in the government-either in Congress or in the Executive Branchis there a complete catalogue of statutes and Executive Orders pertaining to emergency powers. The staff of the committee has undertakenin cooperation with the Library of Congress, the General Accounting Office, and the Justice Department-a computer search of all relevant statutes in the U.S. Code. These findings are now being checked by the staff and we expect that a reasonably complete catalogue of all emergency power statutes will be issued as a committee print. |