Informing Congress: The Role of the Executive in Times of War and Military Conflict, 1941-2001
Report for Congress
Informing Congress: The Role of the Executive in
Times of War and Military Conflict, 1941-2001
August 2, 2002
Harold C. Relyea
Specialist in American National Government
L. Elaine Halchin
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Informing Congress: The Role of the Executive in
Times of War and Military Conflict, 1941-2001
Under the Constitution of the United States, the President is responsible for
prosecuting war and directing the armed forces during military conflicts, including
attacks upon the nation. Congress is constitutionally empowered to declare war, may
otherwise authorize the involvement of American armed forces in military conflict,
appropriates funds for government activities and operations, including military
actions, and engages in oversight to assess the extent to which government operations
have been efficiently, economically, and effectively conducted using appropriated
funds. Congress also has a role in prescribing intelligence and foreign policy.
In meeting these responsibilities, Congress expects and needs to be informed by
executive branch leaders about relevant actions taken and being planned, policy
developments, expenditures, and knowledge conditions. Consequently, the
restriction of information disclosures to Congress prescribed in President George W.
Bush’s October 5, 2001, memorandum to top diplomatic, intelligence, and law
enforcement officials drew critical reaction from various quarters of the House of
Representatives and the Senate. Although the restrictive policy was quickly
suspended by the President, questions have arisen concerning the role of the
executive in times of war and military conflict in informing Congress regarding
American involvement in such events. This report, which is intended to provide
background information and will not be updated, provides a brief review of
executive-congressional relations in this regard for 1941-2001.
World War II.................................................2
Dwight D. Eisenhower.....................................14
John F. Kennedy.........................................20
Lyndon B. Johnson.......................................24
Richard M. Nixon........................................31
Persian Gulf Conflict..........................................44
Informing Congress: The Role of the
Executive in Times of War and
Military Conflict, 1941-2001
In the course of developing and executing a response to the September 11, 2001,
terrorist attacks on the World Trade Center in New York City and the Pentagon in
suburban Washington, DC, President George W. Bush set restrictive policy on the
disclosure of related sensitive information to Congress. In an October 5
memorandum to the Secretaries of State, the Treasury, and Defense, the Attorney
General, the Director of Central Intelligence, and the director of the Federal Bureau
of Investigation, he indicated that “this Administration will continue to work to
inform the leadership of the Congress about the course of, and important
developments in, our critical military, intelligence, and law enforcement operations”
while simultaneously honoring the “obligation to protect military operational
security, intelligence sources and methods, and sensitive law enforcement
Accordingly, your departments should adhere to the following procedures when
providing briefings to the Congress relating to the information we have or the
actions we plan to take:
(i)Only you or officers expressly designated by you may brief Members
of Congress regarding classified or sensitive law enforcement
(ii)The only Members of Congress whom you or your expressly
designated officers may brief regarding classified or sensitive law
enforcement information are the Speaker of the House, the House
Minority Leader, the Senate Majority and Minority Leaders, and the
Chairs and Ranking Members of the Intelligence Committees in the1
House and Senate.
Released amidst allegations of congressional leaking and complaints that
executive briefings for Congress had been inadequate, the new policy engendered
almost universal opposition from the House and Senate membership.2 Five days after
its prescription, the new policy was suspended, with an immediate effect being that
1 The White House, “Disclosures to the Congress,” Memorandum for the Secretary of State,
Secretary of the Treasury, Secretary of Defense, Attorney General, Director of Central
Intelligence, Director of the Federal Bureau of Investigation (Washington: Oct. 5, 2001).
2 Dave Boyer, “Bush’s Curbs on Classified Briefings Irk Congress,” Washington Times, Oct.
Washington Post, Oct. 10, 2001, pp. A1, A4.
members of the armed services committees and foreign affairs committees could be
briefed by Pentagon and State Department leaders as they had been prior to the
President’s October 5 policy memorandum.3
Under the Constitution of the United States, the President is responsible for
prosecuting war and directing the armed forces during military conflicts, including
attacks upon the nation. Congress is constitutionally empowered to declare war, may
otherwise authorize the involvement of American armed forces in military conflict,
appropriates funds for government activities and operations, including military
actions, and engages in oversight to assess the extent to which government operations
have been efficiently, economically, and effectively conducted using appropriated
funds. Congress also has a role in prescribing intelligence and foreign policy.
In meeting these responsibilities, Congress expects and needs to be informed by
executive branch leaders about relevant actions taken and being planned, policy
developments, expenditures, and knowledge conditions. Consequently, the
information restrictions prescribed in President Bush’s October 5 memorandum drew
critical reaction from various quarters of the House of Representatives and the
Senate. Although the restrictive policy was quickly suspended by the President,
questions have arisen concerning the role of the executive in times of war and
military conflict in informing Congress regarding American involvement in such
events. This report offers a brief review of executive-congressional relations in this
regard for 1941-2001.
World War II
Background. The formal entry of the United States into World War II
occurred on December 8, 1941, with a declaration of war against Japan in response
to the attack on Pearl Harbor in the Hawaiian Islands that had occurred the previous4
day. Three days later, on December 11, war was declared against Germany and
Italy.5 As a result of the 1940 elections, President Franklin D. Roosevelt had been
returned to office for an unprecedented third term. His party held large majorities in
both houses of Congress: 267 Democrats to 162 Republicans in the House and 66
Democrats to 28 Republicans in the Senate.
During Roosevelt’s first and second presidential terms (1933-1940), as
totalitarian regimes began threatening the peace of Europe and Asia, Congress, led
by large Democratic majorities, exhibited strong favor for isolationism and neutrality.
The Johnson Debt Default Act of 1934 prohibited loans to any foreign government
in default to the United States, an attempt to disentangle the United State from
European economies.6 By June 15, 1934, Czechoslovakia, Great Britain, Italy,
Latvia, Lithuania, and Rumania formally defaulted, leaving only Finland to meet its
3 Joseph Curl and Dave Boyer, “Bush Resumes Hill Intelligence Briefings,” Washington
Times, Oct. 11, 2001, p. A3.
4 55 Stat. 795.
5 55 Stat. 796, 797.
6 48 Stat. 574.
payments in full. In the wake of Italy’s 1935 invasion of Ethiopia, the 1936 civil war
in Spain, and aggressive actions by both Germany and Japan toward neighboring
nations, Congress adopted a series of Neutrality Acts restricting arms shipments and
travel by American citizens on the vessels of belligerent nations.7 Two months after
war commenced in Europe in September 1939, Congress, at the President’s request,
modified the neutrality law by repealing the arms embargo and authorizing “cash and
carry” exports of arms and munitions to belligerent powers.8
In April 1934, the Senate established the Special Committee on Investigation
of the Munitions Industry to conduct an inquiry into the manufacture of, and traffic
in, arms in the United States. Chaired by Senator Gerald P. Nye (R-ND), who had
introduced the resolution for the panel’s creation, the committee conducted public
hearings stressing the heavy profits realized by financiers and armament makers
during World War I. Continuing until 1936, the committee is credited with
strengthening isolationist sentiment in Congress and the nation, and setting the
background for the Neutrality Acts of 1935, 1936, and 1937.9 Thus, through its
investigations, the climate of opinion it helped generate, and the neutrality legislation
that it nurtured, the Nye committee constituted something of a brake on the efforts
of the Roosevelt Administration to strengthen and expand the national defense
program or to pursue a more internationalist foreign policy.
The Nye committee was no longer a concern to FDR as America became
engaged in World War II, but two other congressional panels likely occupied White
House thinking as the President contemplated his wartime relationship with
Congress. The first was a House creation, the Special Committee to Investigate Un-
American Activities, initially established in 1938. The panel had a broad mandate
to probe “un-American propaganda activities in the United States,” the diffusion of
“subversive and un-American propaganda that is instigated from foreign countries
or of a domestic origin,” and “all other questions in relation thereto that would aid
Congress in any necessary remedial legislation.”10 While the committee’s primary
target was the Communist Party and its affiliates, its mandate to pursue the
perpetrators of “subversive and un-American propaganda” of either a domestic or
foreign origin could be regarded as authority to investigate any private organization
promoting social, political, or economic change; to probe any federal entity,
including the armed forces, regarding public affairs and public education activities;
or even to venture into the realm of foreign policy. However, the chairman of the
committee, Representative Martin Dies (D-TX), was a conservative who was on
record as an opponent of Roosevelt’s New Deal and the political interests supporting
7 49 Stat. 1081, 1152; 50 Stat. 121.
8 54 Stat. 4.
9 Wayne S. Cole, Senator Gerald P. Nye and American Foreign Relations (Minneapolis,
MN: University of Minnesota Press, 1962); John Edward Wiltz, In Search of Peace: The
Senate Munitions Inquiry, 1934-1936 (Baton Rouge, LA: Louisiana State University Press,
Schlesinger, Jr., and Roger Bruns, eds., Congress Investigates: A Documented History,
10 H.Res. 282, 75th Cong., adopted, as amended, May 26, 1938.
it.11 House leaders from the President’s party sought to keep Dies and his committee
narrowly focused so as to avoid his wandering into any aspect of the war effort and
making demands for sensitive information.
Such a strategy of containment could not be contemplated in the case of the
other committee of concern, the Senate Special Committee to Investigate the
National Defense Program. Established in March 1941, war mobilization and
defense production were the primary elements of its mandate. The panel had been
created on the initiative of Senator Harry S. Truman (D-MO), who had just been
elected to his second term and was concerned that defense contracts were not being
fairly allocated within the country. Virtually unknown outside his home state,
Truman gradually gained visibility by supporting the New Deal. Although the White
House did not want a rogue committee producing unwelcomed publicity about
defense contracting and the progress of mobilization efforts, Truman’s proposal and
the prospect of his leading such a panel proved to be an acceptable alternative to
similar efforts by anti-New Dealers and Republicans.12
War Entry. The attack on Pearl Harbor and the U.S. declaration of war the
following day launched the President and Congress on their wartime relationship.
Ironically, the circumstances of the attack and the immediate response of American
armed forces to it became one of the first information issues for the two branches.
Due to its insular location some 2,400 miles southwest of California and its totally
military status, Pearl Harbor, in the aftermath of the Japanese attack, was impervious
to the news media and the surrounding Territory of Hawaii was cloaked in martial
law. The President seemingly had close control over information about the damage
that had been inflicted. Yet, by the evening of December 8, New York Times
Washington bureau chief Arthur Krock had learned that 90% of the fleet had been
disabled at Pearl Harbor.13 Still, for many weeks, the public did not learn of the
extent of the loss, those in possession of the information being afraid that its
disclosure would invite a Japanese amphibious assault on the islands. Nonetheless,
by February 1942, blame was being fixed.
Senator David I. Walsh, the Chairman of the Naval Affairs Committee, advanced
the theory that the Executive Branch was wholly responsible for Pearl Harbor,
thus exculpating Congress and, inferentially, himself from blame. It was not fair
to say “that there has been any failure on the part of Congress to act in any
11 Earl Latham, The Communist Controversy in Washington: From the New Deal to
McCarthy (Cambridge, MA: Harvard University Press, 1966); August Raymond Ogden, The
Dies Committee: A Study of the Special House Committee for the Investigation of Un-
American Activities, 1938-1944 (Washington: Catholic University of America Press, 1945);
Michael Wreszin, “The Dies Committee, 1938,” in Schlesinger and Bruns, eds., Congress
Investigates: A Documented History, 1792-1974, vol. 4, pp. 2923-2956.
12 Donald H. Riddle, The Truman Committee: A Study in Congressional Responsibility (New
Brunswick, NJ: Rutgers University Press, 1964); Harry A. Toulmin, Jr., Diary of
Democracy: The Senate War Investigating Committee (New York: Richard R. Smith ,1947);
Theodore Wilson, “The Truman Committee, 1941,” in Schlesinger and Bruns, eds.,
Congress Investigates: A Documented History, 1792-1974, vol. 4, pp. 3115-3136.
13 David Brinkley, Washington Goes to War (New York: Alfred A. Knopf, 1988), p. 92.
manner that would have prevented what happened at Pearl Harbor,” he said.
“The operations at Pearl Harbor were an executive function, and responsibility14
for them was lodged in the departments.”
Thus, a waiting game ensued. President Roosevelt sought to satisfy Congress
and the public with a fact finding report prepared by an investigating commission
under the chairmanship of Supreme Court Associate Justice Owen Roberts.15
Congress continued to hold the President and his subordinates, both civilian and
military, responsible for American defenses at Pearl Harbor, continued to pursue its
own avenues of information about the attack, and gave no indication that the
Roosevelt Administration was absolved of any responsibility to inform the legislature
about the prosecution of the war declared in response to the attack.
As the course of the war became more certain and the prospect of the Japanese
navy making any return to the Hawaiian Islands receded, Congress, in a 1944
extension of “all statutes, resolutions, laws, articles, and regulations, affecting the
possible prosecution of any person or persons, military or civil, connected with the
Pearl Harbor catastrophe of December 7, 1941, or involved in any other possible or
apparent dereliction of duty, or crime or offense against the United States,” also
directed the Secretary of War and the Secretary of the Navy to create boards of
inquiry to examine the Pearl Harbor attack.16 Finally, about a month after the
surrender of Japan, Congress mandated the Joint Committee on the Investigation of
the Pearl Harbor Attack to “make a full and complete investigation of the facts
relating to the events and circumstances leading up to and following the attack made
by Japanese armed forces upon Pearl Harbor.” Chaired by Senator Alben W. Barkley
(D-KY), the panel held extensive hearings between November 11, 1945, and May 31,
1946, and reviewed, as well, the work of the Roberts Commission and the Army and
Navy boards investigating the Pearl Harbor attack. Reporting in July 1946, a
bipartisan majority of the joint committee blamed the inadequacies of the national
defense system for the poor response at Pearl Harbor, while a minority regarded the
tragedy as “primarily a failure of men,” but at this late date, such conclusions
garnered little public interest.17
Immediately after the Pearl Harbor attack, Senator Arthur H. Vandenberg (R-
MI) had advanced the idea of creating a single committee to serve as a congressional
liaison to the executive branch on the conduct of the war. The model Vandenberg
had in mind was the Joint Committee on the Conduct of the War from the Civil War
era.18 Lacking in details regarding such important political considerations as the
composition of the panel, the manner in which its members would be selected, and
14 Roland Young, Congressional Politics in the Second World War (New York: Columbia
University Press, 1956), p. 170.
15 See E.O. 8983, 3 C.F.R., 1938-1943 Comp., p. 1046.
16 58 Stat. 276.
17 U.S. Congress, Joint Committee on the Investigation of the Pearl Harbor Attack, Report
of the Joint Committee on the Pearl Harbor Attack, 79th Cong., 2nd sess., S.Doc. 244
(Washington: GPO, 1946).
18 Congressional Record, vol. 87, Dec. 9, 1941, p. 9543.
its mission and responsibilities, his proposal, and others like it, apparently had little
Instead of centralizing control in a single war committee, Congress dispersed
control over a wide number of standing committees and newly created
investigation committees. During the war, also, the State, War, and Navy
departments revealed information to relevant legislative committees which was
not revealed to the whole Congress or to the public. In addition, the President
held weekly “free and open discussions” with the political leaders of the House
and Senate, and Speaker Sam Rayburn once told the House that “these are not19
Among the initial investigating committees were the aforementioned Truman
panel (established in 1941); the House Select Committee Investigating National
Defense Migration (1940), which expanded its activities to parallel the Truman
committee; the Senate Special Committee to Investigate Gasoline and Fuel-Oil
Shortages (1941); and House and Senate committees on military affairs (1822, 1816),
naval affairs (1822, 1816), and small business (1941, 1940). Other panels created
during the war included the Senate Special Committee to Investigate Agricultural
Labor Shortages in the West (1942); the Senate Committee to Investigate Production,
Transportation, and Use of Fuels in Areas West of the Mississippi River (1942); the
Senate Special Committee to Investigate the Effects of the Centralization of Heavy
Industry (1943); the Senate Special Committee to Investigate Petroleum Resources
(1944); the House Select Committee to Investigate the Federal Communications
Commission (1943); the House Select Committee to Investigate Acts of Executive
Agencies Beyond the Scope of Their Authority (1943); the House and Senate Special
Committees on Postwar Economic Policy and Planning (1944, 1943); the House
Select Committee on Post-War Military Policy (1944); the House Select Committee
to Investigate Seizure of Montgomery Ward and Company (1944); the House Special
Committee to Investigate Campaign Expenditures (1944); and the House Select
Committee to Investigate Supplies and Shortages of Food, Particularly Meat (1945).
The proliferation of investigation committees was one of the singular
characteristics of the war Congress. The emphasis on investigation, on the
control of policy after the passage of an Act, was a spontaneous congressional
reaction, as it were, to the increasing number of activities with which the20
administrative branch was concerned.
Nonetheless, because “[n]o method was worked out by which Congress as a
whole was informed on the developments of the war, ... in the aggregate, members
of Congress had no more intimate knowledge of how the war was going than the
average reader of a metropolitan newspaper.”21 When a secret session of the Senate
was held in 1943 to hear the report of five Senators who had just returned from the
battlefront and a badly reported version of the proceeding appeared in the press
shortly thereafter, Senator Richard B. Russell (D-GA), who had been on the trip,
19 Young, Congressional Politics in the Second World War, pp. 18-19.
20 Ibid., p. 19.
21 Ibid., p. 145.
correctly predicted that it would “probably be a long time before another executive
session is held.”22 For the most part, the army and the navy developed a “cooperative
and sympathetic relationship” with the congressional armed services committees:
senior officers “confided in these committees and relied on them for political
Congress played a very small role, either as critic or as participant, in the several
military and military-political conferences in which the United States
participated during the war, although it was given some general information on
the decisions made at these conferences. The President discussed the results of
the Casablanca Conference (1943), where the policy of unconditional surrender
was developed, in an off-the-record conversation with some eleven leaders from
Congress and with representatives of the State, War, and Navy Departments. On
the Quebec Conference (1943), the President sent a report to Congress in which
he defended the policy of keeping some matters secret. It was difficult to remain
silent, he said, “when unjustified attack and criticism come from those who are
not in a position to have all the facts,” and he asked for faith that decisions were
being made on better evidence than critics had implied. Secretary [of State] Hull
spoke before a joint session of Congress following the Moscow Conference
(1943). President Roosevelt also addressed Congress—as it happened, for the23
last time—on the results of the Yalta Conference (1945).
During the prosecution of the war, Congress appears to have been willing to
allow the President to prescribe military strategy and foreign policy, and was
seemingly satisfied, at the time, with the arrangements for being informed by the
President about such matters. “Congress conducted more than a hundred
investigations during the Second World War, exploring many aspects of war policy
but falling short of investigating the actual conduct of the war.”24 Prior to becoming
Vice President in 1944, Senator Truman, as chairman of the Senate Special
Committee to Investigate the National Defense Program, repeatedly renounced any
desire to intrude into military strategy or tactics. When his investigators uncovered
enormous and unexplained expenditures for something called the Manhattan Project,
he telephoned Secretary of War Henry L. Stimson. Told “that’s a matter which I
know all about personally, and I am only one of the group of two or three men in the
whole world who know about it ... a very important secret development,” Truman
assured Stimson that “you won’t have to say another word to me.”25 Ironically, with
FDR’s death in April 1945, it would be Stimson’s duty to inform President Truman
about the production of the atomic bomb by the Manhattan Project.
The [Truman] committee performed splendidly in its principal role as production
watchdog. Perhaps the greatest of the committee’s accomplishments was the
high level of public confidence in the Roosevelt Administration’s conduct of the
war. The committee served as an important source of information on what the
government was doing to win the war, and most Americans accepted its
22 Congressional Record, vol. 89, Oct. 28, 1943, p. 8859.
23 Young, Congressional Politics in the Second World War, pp. 146-147.
24 Ibid., p. 227.
25 Wilson, “The Truman Committee, 1941,” p. 3135.
assurances that the domestic war effort, despite administrative tangles and26
bureaucratic incompetence, was going well.
Certainly there were those in the Roosevelt Administration who realized that the
regime was the beneficiary of such public support because, with rare exception, they
complied with the information requests of the Truman committee.
Background. The conclusion of World War II in 1945 brought changes to
many parts of the world, Korea being one such area. A peninsular country extending
some 620 miles southward from the Chinese province of Manchuria, Korea fell under
Japanese control as a consequence of the Russo-Japanese War of 1904-1905.
Annexed to Japan, only 125 miles away, in 1910, it remained under Japanese control
until 1945. At the November 1943 Cairo Conference, Great Britain, the Republic of
China, and the United States, pursuant to the Atlantic Charter of 1941, agreed that
Korea would become a free and independent nation. The Soviet Union adhered to
this agreement in its August 1945 declaration of war on Japan. In a modification on
a prior agreement with the Soviet Union on an intended four-power trusteeship over
Korea, the United States proposed in mid-August 1945 that the surrender of Japanese
armed forces in Korea be accepted by the Americans in the area south of, and by the
Soviets in the area north of, the bisecting 38th degree parallel of north latitude. The
Soviet Union quickly agreed to this arrangement and American troops arrived in
Korea on September 8, 1945, to effect the repatriation of surrendering Japanese
Encountering Soviet obstruction of communication across the 38th parallel, the
United States, in the Moscow Agreement of December 27, 1945, obtained Soviet
agreement to attempt to form a provisional government for all of Korea. Efforts in
this regard in 1946 and 1947 failed on the issue of which Koreans were to be
consulted on unification proposals. In September 1947, the United States placed the
matter before the United Nations General Assembly, which resolved to hold Korea-
wide elections for a united and independent Korea. Refused entry to the north by the
Soviet occupation commander, the U.N. election commission was reauthorized to
observe voting in the south alone. These May 10, 1948, elections laid the
groundwork for a July 17 constitution and the August 15 establishment of the
Republic of Korea (ROK). In the north, with Soviet assistance, a new
government—the Democratic People’s Republic of Korea (DPRK)—was established
on September 9. American armed forces completed a staged withdrawal from the
south in June 1949. As these troops and their Soviet counterparts departed,
increasingly powerful Korean forces replaced them in both sectors. Preceded by
hostilities and armed incidents along the 38th parallel, an invasion of ROK territoryth
across the 38 parallel by DPRK forces occurred, June 25, 1950, with the aim of
unifying the country by force.
In America, news of the invasion was received in a highly unsettled political
environment. First elected to the Senate in 1934, Harry S. Truman (D-MO) was
26 Ibid., p. 3136.
selected by FDR to be his vice presidential running mate in 1944 for a number of
reasons, not the least of which were his political loyalty to the President, personal
integrity, and record of being a hard worker. Truman succeeded to the presidency in
April 1945 when Roosevelt died suddenly in Warm Springs, Georgia. In the months
that followed, he was called upon to lead the participation of the United States in the
United Nations conference; to participate in the Potsdam conference on the
occupation and control of Germany, as well as the settlement of various European
questions; to direct the use of the atomic bomb against Japan; to accept the surrender
of Japan; and to continue planning and directing the conversion of the American
economy to peacetime conditions. The following year, he experienced growing
hostilities with the Soviet Union, a World War II ally, and the onset of the Cold War.
Early in 1947, he responded to the growing Soviet threat with the Truman Doctrine,
calling for the containment of Soviet imperialist expansion and pledging U.S.
economic and military aid to Greece and Turkey, and the Marshall Plan to assist
European nations with economic recovery and a return to political stability. The 1946
elections brought Truman the loss of Democratic Party majorities in both houses for
the 80th Congress. These were regained in 1948, when Truman also won a surprise
return to the White House after dissident factions of his party had bolted from the
Democratic National Convention to form their own parties with presidential
candidates—the States’ Rights or “Dixiecrat” Party nominating Strom Thurmond and
the Progressive Party selecting Henry Wallace. Such divisions were reflective of a
number of fractious issues—racial equality, labor rights, anti-communism, military
preparedness, and economic stability—that would continue to charge the political
The years immediately following the conclusion of World War II were also a
time of change for Congress. As had been the case after previous wars, the return to
peace activated a congressional desire to dismantle the executive’s war machinery.
Much of Congress’ antagonism to the war agencies stemmed from a recognition
that the gigantic executive establishment was making it increasingly difficult for
the legislature to maintain its function as a coequal branch of government. As
the war progressed, the problem became so disturbing to the responsible leaders
of both parties that there was general agreement that something would have to27
be done about it when the war was over.
One of the first steps taken by Congress was to return to an issue that was under
consideration when war came in 1941. This was legislation designed to bring order,
uniformity, and visibility to the rulemaking activities of the federal agencies.28 It was29
enacted as the Administrative Procedure Act of 1946.
27 Alvin M. Josephy, Jr., On the Hill: A History of the American Congress (New York:
Simon and Schuster, 1979), pp. 335-336.
28 See U.S. Congress, Senate, Administrative Procedure in Government Agencies: Report
of the Committee on Administrative Procedure, 77th Cong., 1st sess., S.Doc. 8 (Washington:
GPO, 1941); David H. Rosenbloom, Building a Legislative-Centered Public Administration:
Congress and the Administrative State, 1946-1999 (Tuscaloosa, AL: University of Alabama
29 60 Stat. 237.
Next, Congress “plowed through the job of trying to bring the executive back
to manageable size (some twenty-nine war agencies had spring up under the Office
of [sic] Emergency Management alone, which the President had created by an
executive order). As quickly as it could, Congress reduced the massive wartime
apparatus by repealing authorizations and grants of power, terminating agencies,
abolishing administrative positions, and providing for the transfer of government
undertakings to private business.”30 To assist with this effort, Congress, in 1947,
mandated the Commission on the Organization of the Executive Branch of the
Government, which became known as the Hoover Commission, in popular reference
to the panel’s chairman, former President Herbert Hoover.31
Another accomplishment, the Legislative Reorganization Act of 1946, reduced
the number of House and Senate standing committees; adjusted their legislative
jurisdictions accordingly; encouraged “continuous watchfulness of the execution by
the administrative agencies concerned of any laws, the subject matter of which is
within the jurisdiction of” the standing committees; and expanded the capacity of the
Legislative Reference Service as a congressional support agency.32 Carried over into
standing status was the House Special Committee on Un-American Activities, which
became a powerful and controversial investigative panel.33 Furthermore, the
consolidation of the committees tended to strengthen the position of conservative
chairmen, particularly Southern Democrats, who had opposed the New Deal and now
were resistant to many of the initiatives of the Truman Administration.
Subcommittees and special committees soon began to proliferate, and, in the view
of historian Alvin Josephy, “the 1946 act failed to cope with the significant question
of the distribution of power within Congress and the equality of power between
Congress and the executive branch—two problems that dominated congressional
history after World War II.” A case in point, wrote Josephy, was the House
Committee on Rules.
In 1945, it turned down requests from President Truman for rules that would
permit the House to vote on a bill for a permanent Fair Employment Practice
Committee and consider raising the minimum wage. The Rules Committee the
next year refused to clear for House discussion an administration labor-relations
bill and instead reported out a stern antilabor measure .... When Congress, in a
punitive postwar mood toward union labor, passed that bill, Truman vetoed it,
but in 1947, the Eightieth Congress passed—and made stick over another34
Truman veto—the Taft-Hartley Act, which outlawed the closed shop.
30 Josephy, On the Hill, p. 340.
31 61 Stat. 246.
32 60 Stat. 812, 832.
33 See Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the
Committee on Un-American Activities, 1945-1957 (New Orleans, LA: Hauser, 1959); Robert
K. Carr, The House Committee on Un-American Activities, 1945-1950 (Ithaca, NY: Cornell
University Press, 1952); Earl Latham, The Communist Controversy in Washington: From
the New Deal to McCarthy (Cambridge, MA: Harvard University Press, 1966).
34 Josephy, On the Hill, p. 342.
Five months before the June 25, 1950, DPRK invasion of South Korea, a junior
Senator, Joseph R. McCarthy (R-WI), in a routine Lincoln Day speech in Wheeling,
West Virginia, offered the startling revelation that he knew the names of a number
of Communists working in the Department of State. He repeated his charges on the
Senate floor on February 20.35 The following day, Senator Scott Lucas (D-IL), the
Majority Leader, offered a resolution calling for an inquiry into the allegations by the
Committee on Foreign Relations.36 It was approved, after lengthy debate, the
following day.37 An inquiry, pursuant to the resolution, was begun by a subcommittee
of the Senate Committee on Foreign Relations on March 8. Senator Millard E.
Tydings (D-MD) chaired the subcommittee; Senator McCarthy was the initial
witness; hearings were held on 31 days, concluding just after the invasion of South
Korea.38 More allegations about Communists in government, however, would be
made by Senator McCarthy.
In the November 1950 congressional elections, Republicans gained five seats
in the Senate and 28 in the House, but the Democrats held a two-seat margin in the
Senate and 35-seat edge in the House. Two years later, on March 30, 1952, President
Truman announced he was not a candidate for reelection. In November, the
Republican candidate, former General Dwight D. Eisenhower, captured the
presidency. Among the campaign issues was the Truman Administration’s foreign
policy and military efforts on behalf of South Korea. On December 2, President-elect
Eisenhower, fulfilling a campaign pledge, visited South Korea. Republicans also
gained a one-seat majority in the Senate and an eight-seat majority in the House.
Senator McCarthy became the chairman of the Committee on Government
Operations (now Governmental Affairs) and its Permanent Subcommittee on
Investigations, which he led during 1953-1954 in a long series of hearings on the role
of Communism in government and other areas of American life. On June 26, 1953,
an armistice was signed in Panmunjon, halting the Korean hostilities. An uneasy
truce subsequently prevailed, with numerous violations of the armistice agreement,
but no renewal of open conflict.
Invasion Response. Such was the atmosphere surrounding the June 25,
1950, DPRK invasion of South Korea. In May, Senator Tom Connolly (D-TX), the
chairman of the Committee on Foreign Relations and a man familiar with Korea’s
vulnerability, reportedly had commented that the Soviet Union could seize the
southern territory without U.S. intervention because the ROK was not “very greatly39
important.” Two days after the invasion, he was one of 15 congressional leaders
invited to the White House by the President in order that, by Truman’s own account,
35 Congressional Record, vol. 96, Feb. 20, 1950, pp. 1952-1981.
36 Ibid., Feb. 21, 1950, pp. 2062-2068.
37 Ibid., Feb. 22, 1950, pp. 2125, 2129-2150.
38 U.S. Congress, Senate Committee on Foreign Relations, State Department Employee
Loyalty Investigation, hearings pursuant to S.Res. 231, 81st Cong., 2nd sess. (Washington:
39 Robert Leckie, Conflict: The History of the Korean War (New York: DaCapo, 1996), p.
he “might inform them on the events and the decisions of the past few days.”40 He
next conferred with 21 congressional leaders on December 1.41 Truman’s memoirs
also indicate that Vice President Alben W. Barkley, who attended National Security
Council meetings and was otherwise informed about the developing Korean
situation, “associated daily” with his old Senate colleagues, informally advising them
on various matters and making their views known to the President.42 Truman
apparently preferred such White House meetings with congressional leaders to
making a formal address to Congress because he thought “Korea was a United
Nations matter” involving a collectivity of nations and, accordingly, “our country
should not make an individual approach to it,” as might be conveyed by the official
remarks of the President speaking to a joint session of the legislature.43 At the
December 1 meeting, Truman also told the congressional leaders that he would soon
be sending a message to Congress requesting supplemental military appropriations,
and that he “would be available to answer any questions that anyone might have
about this request, and so would the members of my staff and administration.”44
The President met with senior Democratic and Republican members of the
House and Senate appropriations, armed services, and foreign affairs committees on
December 13 to discuss “a sharp step-up in our mobilization,” including the
declaration of a national emergency, which would activate a broad variety of
extraordinary statutory authorities. The following day, a meeting was held with
congressional leaders to discuss economic mobilization plans, and another meeting
with Representatives and Senators occurred thereafter, with “emphasis on the
economic problems of allocations and wage and price controls.”45 That these
sessions did not satisfy the information desires of all Members of Congress regarding
the Korean situation was reflected in a resolution introduced in December by Senator
James P. Kem (R-MO) with 24 of his colleagues, calling on the President to give
Congress the details of his recent talks with British Prime Minister Clement Atlee
and to submit in treaty form any agreements reached. With the assistance of three
Republican Senators, Senator Tom Connolly (D-TX) succeeded in having the
resolution referred to his Committee on Foreign Relations, where it was held.46
Truman had initially responded to the June 25 invasion by authorizing, on June
27, the commitment of U.S. air and naval forces in support of the defending ROK
army.47 Three days later, U.S. ground forces were committed.48 These actions were
taken by the President without consulting Congress or seeking a declaration of war,
40 Harry S. Truman, Memoirs: Years of Trial and Hope (Garden City, NY: Doubleday,
41 Ibid., p. 390.
42 Ibid., p. 386.
43 Ibid., p. 388.
44 Ibid., p. 391.
45 Ibid., pp. 420-426.
46 Ibid., p. 410.
47 Ibid., p. 337.
48 Ibid., p. 343.
and “there was little opposition to his intervention until the end of the year, after
China had entered the war and inflicted serious reverses on the American forces.”49
Thereafter, beginning in January 1951, a so-called “great debate” ensued in Congress
and elsewhere over the nation’s military commitments abroad. It ended in early April
when resolutions were adopted supporting the dispatch of four U.S. Army divisions
to Europe, but also stating the sense of the Senate that no additional ground forces
should be sent to Europe by the President without congressional approval.50
Shortly thereafter, on April 11, 1951, President Truman, having twice earlier
considered the matter, decided to relieve General Douglas MacArthur of his
commands in the Far East.51 A venerated and legendary figure, MacArthur had a
record of long and distinguished military service spanning two world wars and
including duties as Army Chief of Staff, commander of the Philippine armed forces,
and military governor of Japan. His unceremonious dismissal by Truman shocked the
American public and many Members of Congress. Returning to the United States
after a 14-year absence, he addressed a joint session of Congress, at the invitation of
the congressional leadership, on April 19. The insistence of Senate Republicans for
a special investigating committee with equal representation of both parties was
successfully opposed in favor a joint effort by the Committee on Armed Services and
the Committee on Foreign Relations “to conduct an inquiry into the military situation
in the Far East and the facts surrounding the relief of General of the Army Douglas
MacArthur from his assignments in that area.”52 These hearings commenced on May
3 with MacArthur as the initial witness. His appearance before the committees
continued during May 4 and 5, when he was followed by Secretary of Defense
George C. Marshall, the Joint Chiefs of Staff, Secretary of State Dean Acheson, and
other officials and military officers. The hearings consumed 43 days—almost all of
May and June.53 Truman allowed his senior officials and military officers to appear
before the panels, but was very attentive to protecting the advice they had provided
to him regarding the Korean situation.54 By one account, having successfully
weathered the “great debate” of a few months earlier, Truman “continued to
disregard Congress in the matter of military commitments.”55 Truce negotiations
began at Kaesong on July 10, 1951, and were resumed at Panmunjon in October.
The conflict in Korea was stalemated; negotiations for an armistice were deadlocked
over the issue of forced repatriation of prisoners. Continued American involvement
in Korea became a presidential campaign issue in 1952. By one estimate, the conflict
49 Josephy, On the Hill, p. 353.
50 Ibid, p. 354.
51 Truman, Memoirs, pp. 354-355, 383-384, 432-450; also see John W. Spanier, The
Truman-MacArthur Controversy and the Korean War (Cambridge, MA: The Belknap Press
of Harvard University press, 1959).
52 Spanier, The Truman-MacArthur Controversy and the Korean War, p. 221.
53 U.S. Congress, Senate Committee on Armed Services and Committee on Foreign
Relations, Military Situation in the Far East, hearings, 82nd Cong., 1st sess. (Washington:
54 See Truman, Memoirs, pp. 451-454.
55 Josephy, On the Hill, p. 354.
there contributed to public agony and frustration that reverberated back onto the
domestic political scene, creating a receptive climate for demagogic exploitation by
the House Committee on Un-American Activities, Senator Joseph McCarthy, and
others.56 Months before the armistice was signed in Panmunjon in June 1953,
congressional interest in Korea had shifted to concern by many with Communists in
American government and society, which would engender new controversies
regarding congressional information needs.
Background. America’s military involvement in Vietnam did not begin with
a formal declaration of war, nor was one ever made. Instead, the nation’s
commitment to Vietnam evolved over a number of years, during the presidencies of
Dwight D. Eisenhower, John F. Kennedy, Lyndon B. Johnson, and Richard M.
Nixon. In 1955, the U.S. government gave aid directly to the government in Saigon
for the first time and agreed to train its army. A U.S. military assistance command
was established in 1962, and, two years later, U.S. forces began bombing North
Vietnam. The first American combat troops were deployed to South Vietnam in
where major offensives were carried out in 1970 and 1971, respectively. Public
negotiations and secret peace talks, begun in the late 1960s, converged in the early
1973. The last U.S. troops left South Vietnam on March 29, 1973, and American
prisoners of war were released three days later.
Critical to understanding the relationship between the President and Congress
during the Vietnam conflict are five resolutions, only one of which, the Gulf of
Tonkin resolution (Johnson), dealt exclusively with the use of U.S. military forces
in Vietnam. Three others addressed the use of U.S. armed forces in other areas of the
world: Formosa and the Middle East (Eisenhower), and Cuba (Kennedy). The fifth
resolution dealt more broadly with war powers; it was passed during the Johnson
Administration and repealed during Nixon’s presidency. To a certain extent, the
resolutions themselves, as well as how each Administration handled Congress, offer
insight into the executive-legislative relationship, including the executive’s
willingness to consult with Members.
Dwight D. Eisenhower. Following World War II, a major foreign policy
goal of the United States was to contain Communism. Concerns that the loss of one
country to Communists would lead to a Communist takeover in another country, and
so on, fueled the nation’s preoccupation with the need to thwart Communist advances
whenever and wherever possible. Evidence of those intentions was found in the
Chinese Communists’ success in driving Chiang Kai-shek, and his fellow
Nationalists, from mainland China and establishing the People’s Republic of China
in 1949. Chiang maintained his Nationalist regime on the island of Formosa (also
known as Taiwan). The invasion of South Korea by North Korea in 1950, with the
People’s Republic of China aiding North Korea, was additional confirmation that its
adherents were seeking to spread their influence.
56 Latham, The Communist Controversy in Washington, p. 393.
The departure of the Nationalists from mainland China in 1949 did not end the
dispute between the two adversaries, Chiang Kai-Shek and Mao Tse-tung, and their
supporters. Communist China claimed several islands located off its coast that were
occupied by Nationalist forces. When the Korean War broke out, President Harry S.
Truman declared that the Straits of Formosa were neutral, and ordered the U.S. Navy
to blockade the area, thus preventing either party, Nationalists or Communists, from
using the islands as a base for launching an attack on the other. The blockade was
lifted, by President Eisenhower, on February 2, 1953. In August 1954, the
Nationalists strengthened their forces on the islands of Quemoy and Matsu.
Mainland China responded, in September and November, with military attacks on
several of the islands. On December 2, 1954, the U.S. and Taiwan signed a mutual
After Communist forces had seized the island of Ichiang on January 18, 1955,
and appeared to be threatening to invade the Tachens, President Eisenhower turned
to Congress. On January 24, he asked for a resolution that would give him the
authority to use U.S. forces to protect Taiwan and the other islands. In his message
to Congress, Eisenhower noted that, as Commander in Chief, he already had
authority to take some action. He was sensitive, though, to the need for the President
and Congress to act together.
... a suitable Congressional resolution would clearly and publicly establish the
authority of the President as Commander-in-Chief to employ the armed forces
of this nation promptly and effectively for the purposes indicated if in his
judgment it became necessary. It would make clear the unified and serious57
intentions of our Government, our Congress and our people.
One matter that Eisenhower failed to address specifically was his Administration’s
intentions toward Quemoy, Matsu, and other islands located off the coast of mainland
China. The general language of Eisenhower’s message left the door open for
American intervention in areas other than Formosa (Taiwan) and the Pescadores
(both of which were identified by name in the President’s message):
Moreover, we must be alert to any concentration or employment of Chinese
Communist forces obviously undertaken to facilitate attack upon Formosa, and
be prepared to take appropriate military action.
But unhappily, the danger of armed attack directed against that area [Formosa
and the Pescadores] compels us to take into account closely related localities and
actions which, under current conditions, might determine the failure or the
success of such an attack. The authority that may be accorded by the Congress
would be used only in situations which are recognizable as parts of, or definite
preliminaries to, an attack against the main positions of Formosa and the58
57 U.S. President (Eisenhower), “Special Message to the Congress Regarding United States
Policy for the Defense of Formosa,” Public Papers of the Presidents of the United States,
Dwight D. Eisenhower, 1955 (Washington : GPO, 1959), pp. 209-210.
58 Ibid., p. 209.
The resolution itself specified Formosa (Taiwan) and the Pescadores as areas of
interest, but then referred to “related positions and territories.”
Some congressional Democrats found this language suspect. They believed that
the offshore islands, with the exception of Formosa, belonged to mainland China.
Also, they were concerned about the possibility that Chinese Nationalists might
attempt to use the vague references to manipulate the U.S. into going to war with
China. Nevertheless, the resolution, H. J. Res. 159 (84th Congress), passed both
houses by wide margins, 410-3 in the House (January 25, 1955) and 85-3 in the
Senate (January 28, 1955).59 Although the Democrats had gained control of both
Houses in the 1954 election, their leads in the House (232- 203) and Senate (48-47
with one independent) were not large. Eisenhower signed P.L. 84-4 (H. J. Res. 159;
69 Stat. 7) on January 29, 1955. The Formosa Resolution authorized the President
“to employ the Armed Forces of the United States as he deems necessary for the
specific purpose of securing and protecting Formosa and the Pescadores against
armed attacks ....” The resolution would expire when the President determined that
the “peace and security of the area [was] reasonably assured.”
In 1956, the Eisenhower Administration was faced with a new challenge in a
different part of the world—the Middle East. The President of Egypt, Gamal Abdel
Nasser, planned to build the Aswan High Dam on the Nile River. Late in 1955, he
had secured offers of loans from the United States, Britain, and the World Bank. The
United States withdrew its offer on July 19, 1956, in response to, among other things,
the fact that Nasser had negotiated arms deals with the Soviet bloc. Britain followed
suit, as did the World Bank. Nasser responded by nationalizing the company that
operated the Suez Canal. Britain and France, both of which depended on the canal
for the transportation of oil and had financial interests in the canal, reacted strongly.
Israel launched an offensive on October 29;60 the British and the French attacked
Egypt on October 31; the Soviet Union threatened, on November 5, to intervene
militarily to restore peace in the region; and a cease-fire agreement was reached on
November 6. While Britain and France immediately ended their military activities,
the Soviet Union continued its activities for several days. The U.S. did not intervene,
but it did expand its naval presence in the region before, and during, the crisis.61
Concerned about the volatility of the region, and the Soviet presence, following
the Suez Canal crisis, the Administration once again determined that a resolution was
necessary and approached Congress with its request. On January 5, 1957, President
Eisenhower, addressing a joint session of Congress, asked for a resolution that
would, among other things, authorize the United States to provide military aid and
assist with economic development in the Middle East. Under the heading of military
59 Congressional Quarterly Service, Congress and the Nation, 1945-1964 (Washington:
Congressional Quarterly Service, 1965), p. 114.
60 When the British and the French learned that Israel had formulated its own plans to attack
Egypt, they reportedly proposed, to Israel, that their forces could enter Egypt under the guise
of mediating the conflict between Egypt and Israel. (Federation of American Scientists,
“Suez Crisis,” FAS Military Analysis Network, available at [http://www.fas.org/man/dod-
assistance and cooperation, Eisenhower sought to include “the employment of the
armed forces of the United States....”62 In his message to Congress, he clearly stated
why he believed it was necessary for the President and Congress to work together:
... I deem it necessary to seek the cooperation of the Congress. Only with that
cooperation can we give the reassurance needed to deter aggression.... If,
contrary to my hope and expectation, a situation arose which called for the
military application of the policy which I ask the Congress to join me in
proclaiming, I would of course maintain hour-by-hour contact with the Congress
if it were in session. And if the Congress were not in session, and if the situation
had grave implications, I would, of course, at once call the Congress into special63
Congress, as a whole, was much less receptive to what became known as the
Middle East Resolution than it had been to the Formosa Resolution. Among the
reasons cited for a hesitant response on the part of Congress were that the Middle
East was not considered essential to the security of the United States and that the
Administration had helped to precipitate the crisis when it withdrew its offer of a
loan for the Aswan High Dam and, later, did not support a British-French proposal
for dealing with Nasser.64 In January 1957, Secretary of State John Foster Dulles
testified before the House Committee on Foreign Affairs and, in a combined session,
the Senate Committees on Foreign Relations and the Armed Services.65 In response
to Senators’ concerns that his argument for the draft resolution was based on general,
not specific, information, Dulles said: “If we have to pinpoint everything we propose
to do, this program will not serve its purpose. If Congress is not willing to trust the
President to the extent he asks, we can’t win this battle.”66 The House of
Representatives responded to Dulles’s entreaty, passing H.J.Res. 117 (85th Congress)
on a 355-61 vote.67 Democrats voted 118-35; Republicans 167-26. While the House
passed the measure fairly quickly,68 the Senate did not. Instead, the Committees on
62 U.S. President (Eisenhower), “Special Message to the Congress on the Situation in the
Middle East,” Public Papers of the Presidents of the United States, Dwight D. Eisenhower,
63 Ibid., pp. 11, 15.
64 Congressional Quarterly Service, Congress and the Nation, 1945-1964, p. 120.
65 See U.S. Congress, House Committee on Foreign Affairs, Economic and Military
Cooperation with Nations in the General Area of the Middle East, hearings on H. J. Res.thst
Congress, Senate Committees on Foreign Relations and the Armed Services, The President’sthst
Proposal on the Middle East, hearings on S.J.Res. 19 and H.J.Res. 117, 85 Cong., 1 sess.,
Jan. 14, 15, 25, 28-30, Feb. 1, 4, 1957 (Washington: GPO, 1957).
66 Congressional Quarterly Service, Congress and the Nation, 1945-1964, p. 120.
67 See U.S. Congress, House Committee on Foreign Affairs, Authorizing the President to
Undertake Economic and Military Cooperation with Nations in the General Area of thethst
Middle East, report to accompany H.J.Res. 117, 85 Cong., 1 sess., H.Rept. 85-2
(Washington: GPO, 1957).
68 Referring to H.J.Res. 117, Representative James Roosevelt said “that rarely had there been
Foreign Relations and the Armed Services, meeting jointly,69 voted 30-0 “for a
complete review of U.S. policy in the Middle East since 1946.”70 Eventually, the two
committees reported the resolution after having changed some of the language in the
Administration’s draft.71 Specifically, the resolution was amended to say that the
United States would be “‘prepared’ to use armed forces ‘if the President determines
the necessity thereof ....”72 After 12 days of sporadic debate on the measure, the
Senate passed the resolution, as amended, by a vote of 72-19 on March 5 (Democrats
In the late 1940s and early 1950s, two forces were fighting for control of
northern Vietnam. The French, who had taken control of Vietnam, and other parts
of Southeast Asia, in the 19th century, were locked in a war with Ho Chi Minh and
his fellow indigenous Communists (who were also referred to as Viet Minh). While
preparations were underway, in late 1953, for peace talks, the French military decided
to launch a major attack, from the village of Dien Bien Phu, on Viet Minh forces. At
the same time that the French were fortifying their military facilities and positions in
and around Dien Bien Phu, the Communists were positioning their forces around the
village. Viet Minh forces attacked on March 13, 1954, overrunning French bases
located on the perimeter of Dien Bien Phu, which allowed them, in turn, to direct
massive artillery fire on the village and the French forces stationed there.
Until their defeat on May 7, the French requested, on several occasions, military
assistance from the United States. While Eisenhower and his senior advisers
believed that French forces needed military support if they were to succeed in
thwarting the Communists, the Administration preferred multilateral action.
Speaking at the Overseas Press Club on March 29, 1954, Secretary of State Dulles
presented the Administration’s concept of united action.73
a bill ‘which has so few friends that will get so many votes.” (Congressional Quarterly
Service, Congress and the Nation, 1945-1964, p. 120.)
69 The Senate entered into an agreement on January 23, 1957 that created a joint committee,
consisting of the Committees on Foreign Relations and the Armed Services, for the purposes
of considering and studying S.J.Res. 19 and H.J.Res. 117.
70 Congressional Quarterly Service, Congress and the Nation, 1945-1964, p. 120.
71 See U.S. Congress, Senate Committees on Foreign Relations and Armed Services (acting
jointly), To Promote Peace and Stability in the Middle East, report to accompany S.J.Res.thst
However, the language of S.J.Res. 19 was substituted for the language of the House joint
72 Congressional Quarterly Service, Congress and the Nation, 1945-1964, p. 120.
73 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1945-1961, part I, committee print prepared by the Congressional Researchthnd
Service, Library of Congress, 98 Cong., 2 sess., S.Prt. 98-185 (Washington: GPO, 1984),
In the week leading up to Dulles’s speech, Administration officials consulted,
on several occasions, with Members of Congress on the notion of united action. The
record suggests that the President, Secretary Dulles, and Admiral Arthur W. Radford,
chairman of the Joint Chiefs of Staff, made the decision, on March 21, 1954, to
pursue a multilateral approach regarding Southeast Asia.74 The next morning,
Eisenhower, Dulles, and Radford met with Republican congressional leaders. Dulles
briefed them on the Administration’s concept of united action and, later, he drafted
a memorandum on this matter, which “was approved by Eisenhower and by
congressional leaders of both parties.”75 Other Members, including congressional
leaders and members of the Senate Committee on Foreign Relations and members
of the House Committee on Foreign Affairs, also were consulted by Dulles prior to
March 29.76 At a meeting with Republican congressional leaders on the same day, the
President informed them of several options he was considering in the event the
situation at Dien Bien Phu deteriorated rapidly. Eisenhower said:
I am bringing this up at this time because at any time within the space of forty-
eight hours, it might be necessary to move into the battle of Dien Bien Phu in
order to keep it from going against us, and in that case I will be calling in the
Democrats as well as our Republican leaders to inform them of the actions we’re
As the situation grew worse for the French troops, with a successful assault by
the Viet Minh on March 30 and April 1, the Administration’s discussions on the
question of providing military support were infused with a sense of urgency. When
the President, Secretary Dulles, Secretary of Defense Charles E. Wilson, and Admiral
Radford gathered on April 2, 1954, Dulles presented a draft resolution. Eisenhower
approved of the resolution, but thought that the proper way to approach Congress was
“to develop first the thinking of congressional leaders” before showing them a78
resolution already drafted by the Administration. Dulles concurred, adding that he
prepared the draft to confirm that they agreed on the Administration’s course of
action. Unlike the Gulf of Tonkin resolution, which would be passed in 1964 and
which confirmed the President’s authority to take action, Dulles’s draft had Congress
authorizing the President to act. The draft also contained this language: “This
Resolution shall not derogate from the authority of the Congress to declare war and
shall terminate on June 30, 1955, or prior thereto if the Congress by concurrent
resolution shall so determine.”79
77 Richard Nixon, R.N.: The Memoirs of Richard Nixon (New York: Grosset and Dunlap,
78 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1945-1961, part I, p. 184.
79 U.S. Department of State, Foreign Relations of the United States, 1952-1954, vol. XIII,
part 1, Neal H. Petersen, ed. (Washington: GPO, 1982), p. 1212, quoted in ibid., p. 185.
On April 3, 1954, Administration officials and congressional leaders met at the
Department of State. The thrust of the meeting was to ask Congress to support the
President in the event air and sea power were necessary. Admiral Radford described
the military situation, while Secretary Dulles explained the significance of Indochina.
All eight Members at the meeting agreed that the U.S. ought to obtain commitments
from its allies for political and military support. Dulles replied that he would try to
obtain commitments from Britain and other countries, but did not broach the subject
of a congressional resolution. The congressional leadership’s “reaction appears to
have prevented the realization of Dulles’s hope, possibly even his intention, that the
group would agree to support a congressional resolution authorizing the President to
use air and naval forces, in order to strengthen the U.S. negotiating position ....”80 A
benefit for the President was that the Members’ position strengthened his own hand
within the Administration. “In opposing military action which might lead to ‘another
Korea,’ congressional leaders reinforced the President’s own desire to avoid direct
intervention with U.S. forces, thus helping to counter the arguments of Radford and
others who favored military action.”81
Administration officials continued to meet with Members of Congress, even as
the situation in Dien Bien Phu worsened. Under Secretary of State Bedell Smith met
with members of both congressional Far East subcommittees on April 26.
Participants discussed the proposed resolution that would authorize the President to
employ air and sea power. Another briefing was held, on May 5, for congressional
leaders and chairmen and ranking members of the Senate and House Armed Services
Committees. In his presentation, Dulles reviewed recent events and described the
Administration’s position on U.S. intervention, the need to establish a defense
arrangement in Southeast Asia, and the importance of Britain and France.82 Two
days later, Dien Bien Phu fell to the Viet Minh.
Eisenhower’s philosophy of working in concert with Congress did not carry
over into covert operations. He did not believe that he needed congressional
approval for clandestine activities.83 Eisenhower approved covert operations in Iran
and Guatemala without seeking legislative authorization, and the planning for the
Bay of Pigs invasion of Cuba began during his tenure.84
John F. Kennedy. During his relatively brief time in office, President
Kennedy expanded American involvement in Vietnam in a number of ways, moving
the United States from an advisory capacity to partner status and expanding its
80 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1945-1961, part 1, p. 194.
81 Ibid., p. 195.
82 Ibid., pp. 222-223.
83 Louis Fisher, Presidential War Power (Lawrence, KS: University Press of Kansas, 1995),
84 Ibid., p. 169.
military activities. Within six months of taking office, Kennedy decided that “the
struggle against Communism” in Vietnam would be a “joint campaign.”85
This expanded commitment by the President of the United States, with the
acquiescence of Congress, raised the level and enlarged the scope of existing
U.S. commitments to Vietnam. Previously the U.S. had taken the position that
it was assisting Vietnam in its efforts to defend itself. Although in practice the
United States was deeply involved in activities in Vietnam, it had never taken the
position that this was a joint effort by the two countries—a concept with many
implications for the role of the United States and the role of Vietnam, as well as86
for the relationship between the U.S. and Vietnam.
Under President Kennedy, the United States initiated the strategic hamlet program,
supported covert operations, and strengthened its command structure in South
Vietnam. Kennedy formed the Military Assistance Command Vietnam (MACV),
which was activated on February 8, 1962, and eventually replaced the Military
Assistance Advisory Group-Vietnam (MAAG-V) that Eisenhower had established
in 1955. The MACV was needed to manage expanding U.S. military operations in
A significant component of this expansion was an increase in the number of
U.S. military advisers, from approximately 700 to nearly 15,000 by the end of 1963,
and their participation in combat operations. The U.S. Air Force also was used for
combat operations. On October 11, 1961, the President authorized the deployment
of an Air Force unit to South Vietnam. Stationed north of Saigon, at Bien Hoa Air
Base, the 4400th Combat Crew Training Squadron flew 229 combat missions in
support of South Vietnamese ground troops by January 31, 1962 .88 The flights were
authorized as long as a Vietnamese crew member was on board; and the bombers
were redesignated RB-26, for reconnaissance bomber, because the 1954 Geneva
Conventions prohibited the introduction of bombers to Indochina.89
In seizing the initiative on Vietnam, and other foreign policy issues and
operations, Kennedy was aided to some extent by Congress. Generally, Members
agreed with U.S. policy in Vietnam. Another factor was fairly widespread agreement
among Members that the President was best-suited for the job of directing foreign
85 Dept. of Defense, ed., Pentagon Papers, book 11, (Washington: GPO, 1971), p. 132,
quoted in U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and
the Vietnam War, 1961-1964, part II, committee print prepared by the Congressionalthnd
Research Service, Library of Congress, 98 Cong., 2 sess., S.Prt. 98-185 (Washington:
GPO, 1984), p. 42.
86 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part II, p. 43.
87 Daniel T. Bailey, “Military Assistance Command, Vietnam (MACV),” in Stanley I.
Kutler, ed., Encyclopedia of the Vietnam War (New York: Charles Scribner’s Sons, an
imprint of Simon and Schuster Macmillan, 1996), p. 336.
88 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part II, p. 108.
89 Ibid., p. 71.
policy, and, as a corollary, that the President needed to have sufficient authority to
conduct foreign policy. In a speech on June 3, 1962, Senator Mike Mansfield (D-
MT), in referring to recent U.S. military operations in Thailand and Vietnam, said:
Both steps represent a deepening of an already very deep involvement on the
Southeast Asia mainland. In this, as in all cases of foreign policy and military
command, the responsibility for the direction of the Nation’s course rests with90
Senator J. William Fulbright (D-AR), in an article published in 1961, explained why
Presidents ought to have adequate authority to conduct foreign affairs. In the article,
Fulbright took the position that “... for the existing requirements of American
foreign policy we have hobbled the President by too niggardly a grant of
power.... The overriding problem of inadequate Presidential authority in foreign
affairs,” Fulbright added, “derives ... from the ‘checks and balances’ of
Congressional authority in foreign relations.” Fulbright questioned “... whetherth
in the face of the harsh necessities of the 1960’s we can afford the luxury of 18
century procedures of measured deliberation. It is highly unlikely that we can
successfully execute a long-range program for the taming, or containing of
today’s aggressive and revolutionary forces by continuing to leave vast and vital
decision-making powers in the hands of a decentralized, independent-minded and
largely parochial-minded body of legislators.... I submit that the price of
democratic survival in a world of aggressive totalitarianism is to give up some
of the democratic luxuries of the past. We should do so with no illusions as to
the reasons for its necessity. It is distasteful and dangerous to vest the executive
with powers unchecked and unbalanced. My question is whether we have any91
choice but to do so.”
Mansfield’s and Fulbright’s comments were indicative, generally, of Congress’s
view of its role and the executive’s role during the early stages of the Vietnam
involvement, a view that would evolve considerably as involvement deepened.
Accustomed to serving as a “silent partner,” willing to defer to the expertise of
military professionals and intelligence personnel, and unable to observe U.S. military
operations and activities for themselves, Members seemed to be content to allow the
President and his senior advisers to oversee the war.92
Helping to shore up South Vietnam militarily and politically was important to
the Kennedy Administration, but an even more pressing problem was Cuba. The
failed invasion of Cuba at the Bay of Pigs in April 1961 was one of a series of events
and public statements that served to heighten the tension between the U.S. and Cuba
90 Sen. Mike Mansfield, “Interests and Policies in Southeast Asia – Commencement Address
by Senator Mansfield at Michigan State University,” reprinted, Congressional Record, vol.
91 J. William Fulbright, “American Foreign Policy in the 20th Century under an 18th-Century
Constitution,” Cornell Law Quarterly, vol. 47, Fall 1961, pp. 2, 5, 7, quoted in ibid., pp.
92 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part II, p. 127.
following its establishment of diplomatic relations with the Soviet Union on May 7,
1960. While Robert F. Kennedy, in his capacity as Attorney General, sent a
memorandum to the President on April 19, 1961, warning of the possibility that the
Soviet Union might station ballistic missiles in Cuba, it was not until mid-1962 that
the U.S. observed suspicious activities and shipments from the Soviets. President
Kennedy responded at a news conference on September 13, 1962. Rather than
request a joint resolution from Congress authorizing him to take action during the
Cuban missile crisis, Kennedy opted to act unilaterally. Asserting his authority as
Commander in Chief, Kennedy said: “‘I have full authority now to take such action’
militarily against Cuba.”93 When asked whether, in light of his claim to have the
constitutional authority necessary to act unilaterally, there was any reason for either
or both chambers to pass a resolution authorizing him to act, he replied:
No. I think the Members of Congress would, speaking as they do with a
particular responsibility—I think it would be useful, if they desired to do so, for
them to express their view. And as I’ve seen the resolutions which have been
discussed—a resolution which I think Senator [Mike] Mansfield [D-Mont.]
introduced and which Chairman [Carl] Vinson [D-Ga.] introduced in the House
—and I would think that—I’d be very glad to have those resolutions passed if94
that should be the desire of the Congress.
On October 3, 1962, the President signed a resolution on Cuba, S.J.Res. 230 (P.L.
Instead of indicating what the President was authorized to do, the operative portion
of the resolution began by stating “That the United States is determined ....” The96
Senate vote was 86-1; the House, 384-7. The lack of serious opposition to the
President’s assertion of authority apparently was a sign of deference. Senator Bourke
Hickenlooper (R-IA) remarked: “Basically the Executive has the responsibility for
and is in charge of foreign policy operations.”97
93 Fisher, Presidential War Power, p. 111.
94 U.S. President (Kennedy), “The President’s News Conference of September 13, 1962,”
Public Papers of the Presidents of the United States, John F. Kennedy, 1962 (Washington:
GPO, 1963), p. 679, quoted in ibid.
95 One week later, Congress passed a resolution on Berlin. H.Con.Res. 570 declared “that
the United States is determined to prevent by whatever means may be necessary, including
the use of arms, any violation of [United States, British, and French rights in Berlin] by the
Soviet Union directly or through others, and to fulfill our commitment to the people of
Berlin with respect to their resolve for freedom.” (Journal of the House of Representativesthnd
of the United States, 87 Cong., 2 sess. (Washington: GPO, 1962), p. 921.) Unlike the
Cuba joint resolution, the concurrent resolution was not submitted to the President for
signature and would not have the force and effect of law.
96 Consideration and passage of S.J.Res. 230 may be found in: “U.S. Policy with Respect to
Cuba” and “Expressing the Determination of the United States with Respect to the Situation
in Cuba,” Congressional Record, vol. 108, Sept. 20 and Sept. 26, 1962, pp. 20024-20025,
97 Sen. Bourke Hickenlooper, “U.S. Policy with Respect to Cuba,” remarks in the Senate,
Congressional Record, vol. 108, Sept. 20, 1962, p. 20029, quoted in Fisher, Presidential
In late October, the Administration took steps to interdict offensive weapons
headed to Cuba. The idea of calling Congress back to Washington, DC, received
only brief consideration. Former Secretary of State Dean Acheson, a member of the
Kennedy Administration’s team that considered various options, noted that “this was
no time ... to worry about legal formalities.”98 Kennedy used the Cuba resolution to
legitimize his decisions by stating that they were based on “the authority entrusted
to me by the Constitution as endorsed by the resolution of the Congress.”99
The assassination of Kennedy on November 22, 1963, and the inauguration of
Lyndon B. Johnson did not change United States policy toward Vietnam. Three days
after Kennedy’s death, President Johnson reaffirmed, in National Security Action
Memorandum (NSAM) 273, that it was the goal of the United States to conquer
Communist forces in Southeast Asia.
Lyndon B. Johnson. Upon taking office, Johnson inherited a noticeably
deteriorating situation in Vietnam. Three weeks before Kennedy was killed, Ngo
Dinh Diem, prime minister of South Vietnam, was overthrown and murdered by
several of his government’s high-ranking military officers. Demonstrations in South
Vietnam against Diem, and indications that he was considering entering into
negotiations with the Communists, were cause for concern among officials in the
Kennedy Administration. In all likelihood, the coup was seen by the Administration
as an opportunity for South Vietnam to establish a government more willing and
better equipped to repel Communist advances. Any improvement was short-lived,
however. Reports that the new government was faltering, that the strategic hamlet
program was not as effective as expected, and that the Communists were increasing
their pressure on Vietnam, as well as Laos, prompted Johnson to send his Secretary
of Defense, Robert McNamara, and others, to Vietnam in December 1963 to observe
and report on the situation. McNamara’s report portrayed a country that was, or soon
would be, vulnerable to Communist takeover. Subsequent visits and additional
reports yielded similarly bleak assessments.
As early as February 13, 1964, the possibility of asking Congress for a
resolution on the use of U.S. military forces in Vietnam was under consideration
within the Administration. In a memorandum to Secretary of State Dean Rusk, Walt
W. Rostow, director of the State Department’s Policy Planning Council, wrote that
some discussions had been held on the desirability of asking Congress for a
“Even this early in the Johnson administration,”Rostow said subsequently, “word
had gotten back to the bureaucracy that Johnson disapproved of Truman’s failure
to seek a congressional resolution in the Korean War. We understood that,
War Power, p. 112.
98 Elie Abel, The Missiles of October: The Story of the Cuban Missile Crisis (London:
MacGibbon and Kee, 1969), p. 84, quoted in ibid., p. 113.
99 U.S. President (Kennedy), “Radio and Television Report to the American People on the
Soviet Arms Buildup in Cuba,” Public Papers of the Presidents of the United States, John
F. Kennedy, 1962 (Washington: GPO, 1963), p. 807, quoted in ibid.
should the occasion arise, he intended to be governed by Eisenhower’s precedent
in the Formosa and Middle East resolutions, where broad congressional support
was sought before policies that might lead to military confrontations were carried100
On May 20, 1964, Johnson requested that a working group develop plans for a
congressional resolution. In reporting to Johnson on the group’s progress, McGeorge
Bundy, the President’s national security adviser, said that the team working with
Under Secretary of State George W. Ball was “‘drafting alternative forms of a
congressional resolution so as to give you a full range of choice with respect to the
way in which you would seek Congressional validation of wider action. The
preliminary consensus is that such a resolution is essential before we act against
North Vietnam, but that it should be sufficiently general in form not to commit you
to any particular action ahead of time.’”101
From June 1 through June 3, 1964, top U.S. officials from Washington and
Saigon convened in Honolulu to discuss how to proceed in Vietnam and Laos, and
how to prepare the American public for an expanded war.102 A State Department
cable that provided guidance for the meeting stated “that the President was consulting
closely with congressional leaders, and that he ‘will wish Congress associated with103
him on any steps which carry with them substantial acts and risks of escalation.’”
Discussion within the Administration about the desirability and timing of a
proposed congressional resolution continued. In a paper he prepared for a June 10
interdepartmental meeting, William Bundy, Assistant Secretary of State for East
Asian and Pacific Affairs, suggested that, “in the absence of acute emergency,” the
Administration could request a resolution within the next three weeks. September
and November were possibilities, too, Bundy wrote, should the situation change104
drastically. However, he recommended that the Administration wait, which also
was the recommendation that came out of the meeting, as noted in a memorandum
from McGeorge Bundy to the President: “... we do not now recommend an attempt
to get an early resolution. We think the risks outweigh the advantages, unless and105
until we have a firm decision to take more drastic action than we currently plan.”
However, yet another memorandum from William Bundy, dated June 12, advised
100 W. W. Rostow, The Diffusion of Power (New York: Macmillan, 1972), p. 505, quoted
in U.S. Congress, Senate Committee on Foreign Relations, U.S. Congress, Senate
Committee on Foreign Relations, The U.S. Government and the Vietnam War, 1961-1964,
part II, p. 231.
101 Johnson Library, NSF Aides File, McGeorge Bundy Memos for the President, quoted in
ibid., pp. 254-255.
102 Ibid., p. 261.
103 Pentagon Papers, [Sen. Maurice Robert (Mike)] Gravel edition, vol. III (Boston: Beacon
Press, 1971), p. 73, quoted in ibid.
104 William Bundy, “Alternative Public Positions for U.S. on Southeast Asia for the Period
July 1-November 15,” Johnson Library, NSC History File, Gulf of Tonkin Attacks, quoted
in ibid., p. 268.
105 Johnson Library, NSF Aides File, McGeorge Bundy Memos for President, quoted in ibid.
that a resolution be sent to Congress the week of June 22 (neither July nor August
was suitable because of the Republican and Democratic party conventions). In his
memorandum, Bundy wrote:
It may be argued that a Congressional Resolution under present circumstances
faces the serious difficulty that there is no drastic change in the situation to point
to. The opposing argument is that we might well not have such a drastic change
even later in the summer and yet conclude—either because of the Polish
consultations [meetings then being planned for negotiating a new settlement in106
Laos] or because of the South Viet-Nam situation—that we had to act.
Efforts to develop a resolution, and to determine when it should be proposed, were
suspended in mid-June. A group of senior National Security Council officials,
meeting on June 15, agreed with a White House memorandum that stated a resolution
was not necessary at the time. In his account of this determination, William Bundy
wrote: “... in the end the case against the resolution seemed overwhelming ... the
general consensus was that in the absence of a considered decision for a sustained
course of action, the need for a resolution was impossible to explain adequately to
the Congress and the public.”107 Later that summer, events in the Gulf of Tonkin
provided the Johnson Administration with a rationale for proposing a congressional
The following is a summary of events that served as the catalyst for the
Administration’s effort to secure the passage of a resolution in 1964. This account
reflects the views of some that the Administration was not completely forthcoming
with Congress in its portrayal of what occurred, and why, in the Gulf of Tonkin in
In June and July 1964, the United States was conducting both overt and covert
operations in Southeast Asia. Two of the covert operations were 34-A raids, which
were named for OPLAN 34-A and had been put into effect in February; and DE
SOTO patrols, which began in mid-June. Commandos from South Vietnam (and
other countries) carried out 34-A raids, using high speed boats to attack the coast of
North Vietnam. These personnel had been recruited and were managed by the
Central Intelligence Agency (CIA). DE SOTO patrols were intelligence gathering
missions conducted by the U.S. Navy off the coast of North Vietnam. They were
also intended to be a show of force.
On the night of July 30, 1964, 34-A boats attacked two North Vietnamese
islands in the Gulf of Tonkin. On July 31, the U.S.S. Maddox was headed to the
same area to conduct a DE SOTO patrol. The Maddox was attacked by three North
Vietnamese torpedo boats on August 2. It returned fire, as did aircraft from the
U.S.S. Ticonderoga. “Though some of the President’s advisers urged an immediate
106 William Bundy, “Memorandum on the Southeast Asia Situation: Probable Developments
and the Case for a Congressional Resolution,” Pentagon Papers, Gravel ed., vol. III, p. 180,
quoted in ibid., p. 270 (emphasis in original).
107 William Bundy, unpublished manuscript, written in 1970-1972, ch. 13, p. 22, quoted in
ibid., p. 274.
retaliatory move,” said George W. Ball, Under Secretary of State, “the President
wished for an even stronger record. So, rather than keeping our ships out of this now
established danger zone, the President approved sending both the Maddox and the
destroyer C. Turner Joy back into the Gulf.”108 On August 3, the C. Turner Joy
joined the Maddox.
Following a meeting with the President, McNamara, and General Earle G.
Wheeler, chairman of the Joint Chiefs of Staff, during the afternoon of August 3,
Secretary of State Rusk sent a cable to Maxwell Taylor, U.S. ambassador to Vietnam,
informing him that 34-A operations had additional targets.
[Rusk] also told Taylor, contrary to the denials of the executive branch is [sic]
its discussions with Congress and in its public statements, that there was, indeed,
a direct connection between the 34-A operations and the North Vietnamese
attack on the Maddox, and that the attack on the Maddox, rather than being
unprovoked, was directly related to the 34-A raids. This is what Rusk’s cable
said: ‘We believe that present OPLAN 34A activities are beginning to rattle
Hanoi, and MADDOX incident is directly related to their efforts to resist these
activities .... We have no intention of yielding to pressure.’109
On the night of August 3, 34-A raiders attacked the coast of North Vietnam again.
On August 4, Commander John J. Herrick, who was on board the Maddox, reported
that both Navy ships were under “continuous torpedo attack.” Several hours later,
Herrick sent another message, in which he expressed his doubts that there had been
an attack on August 4, citing poor weather, overeager sonarmen, and lack of
sightings, and recommended a more thorough assessment of events before
Efforts to determine whether the Navy ships had been attacked on August 4
continued for some time, even as the Administration pressed on with its plans for a
congressional resolution. A four-person team from the Department of Defense
(DOD), sent on August 9 to investigate the incident, concluded an attack had
occurred. However, Navy pilots stationed on board the Ticonderoga gave conflicting
reports; two pilots apparently confirmed an attack had taken place while a third pilot
disputed there had been a torpedo attack.111 The deputy director of the Central
Intelligence Agency, Ray S. Cline, after reviewing the evidence, concluded, “within
about three days after the incident” that an attack probably had not occurred.112
108 George W. Ball, The Past Has Another Pattern (New York: Norton, 1982), p. 379,
quoted in ibid., p. 286.
109 Johnson Library, NSF Country File, Vietnam, Washington to Saigon 336, Aug. 3, 1964,
quoted in ibid., pp. 286-287.
110 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part I, pp. 289-290.
111 Ibid., pp. 297-298.
112 Ibid., p. 298.
While McNamara and military officials were trying to confirm that a second
attack had occurred, Abram Chayes, legal adviser for the State Department, and Ball
were drafting, on August 4, a congressional resolution. According to Chayes,
The main thing ... that Ball wanted me to deal with, ... was this question of
Executive-Congressional relationships.... The whole problem ... was how do you
get a resolution without acknowledging that Congress had any authority in
this?... I didn’t look at whatever the evidence was.... It was simply that he [Ball]
wanted me to look at the resolution and make sure that we’re not giving away
any part of the President’s power in this resolution. And so I spent ... a couple
of hours, talking about the resolution, going over it and making sure that it didn’t
go beyond the earlier resolutions in the acknowledgment of a requirement of
On the evening of August 4, Johnson, Rusk, McNamara, McCone, and Wheeler
met with congressional leaders and committee chairmen and ranking members.
Johnson offered an account of the attack and informed the Congressmen that he
already had ordered a retaliatory strike and would address the nation later in the
evening. Only Senator Mansfield opposed Johnson’s decision, although when the
President asked each Member to state his position on a congressional resolution, all
indicated they would support the resolution.114
In a televised address the night of August 4, President Johnson announced that
the U.S. would retaliate. The next day, aircraft from the Ticonderoga and the
Constellation attacked North Vietnamese torpedo boats and support facilities along
the coast. Though immediate efforts to determine what had taken place in the Gulf
of Tonkin, with an eye toward confirming that two U.S. Navy ships had been
attacked by North Vietnamese, continued for several days, Johnson was adamant that
North Vietnamese forces had attacked “United States ships on the high seas in the
Gulf of Tonkin,” and he announced that the U.S. would respond with air strikes
against North Vietnamese torpedo boat bases and supply depots.115
On August 5, the Administration sent a draft resolution to Congress. The
resolution did not meet with serious opposition in either chamber. The urge to act
apparently was the predominant motive in the House and is reflected in
Representative Dante B. Fascell’s (D-FL) recollections:
My own impression of what happened at that time was that most everybody said,
well, the President wants this power and he needs to have it. It had relatively
little to do with the so-called incident. I don’t know why so much stress has been
made on whether or not there was an incident or whether or not the President was
deceitful or whatever.... The President needed the authority. Who cared about
113 CRS Interview with Abram Chayes, Oct. 13, 1978, quoted in ibid., p. 293.
114 Ibid., pp. 294-295.
115 U.S. President (Johnson), “Radio and Television Report to the American People
Following Renewed Aggression in the Gulf of Tonkin,” Public Papers of the Presidents of
the United States, Lyndon B. Johnson, 1963-64, vol. II (Washington: GPO, 1965), p. 927,
quoted in ibid., p. 297.
the facts of the so-called incident that would trigger this authority? So the116
resolution was just hammered right on through by everybody.
Senator Charles Mathias (R-MD), in reviewing how readily Congress accepted the
Administration’s draft resolution, focused on historical precedence and success.
What we were familiar with was a pattern of practice that had existed since the
end of World War II, whereby the United States, by merely passing a resolution
of the Congress, could bring about certain dramatic events in the world.... So I
think we were, to some extent, the victims of success, in dealing with the Tonkin
Gulf Resolution. It had worked so well in those previous situations that,
speaking for myself, I think I was over-confident that it would work again, and
that merely by enacting a resolution which seemed, at least, to show a high
degree of national unity, that we could in some way dissipate the forces which117
we at that moment, saw as a threat.
Deputy Attorney General Nicholas deB. Katzenbach offered the upcoming
presidential election as another factor in congressional Democrats’ decisions to
support the resolution.118 With his opponent, Senator Barry Goldwater, running as
a “hawk,” President Johnson needed to demonstrate his commitment and resolve in
dealing with the North Vietnamese.119
While some Senators were apprehensive about the resolution and its
implications, only one, Senator Wayne Morse (D-OR), was a persistent critic. He
maintained that the United States had engaged in provocative acts; he questioned the
constitutionality of the resolution; and he objected to using American forces to aid
governments unworthy (i.e., dictatorships, fascist regimes, monarchies) of American120
The Senate passed H.J.Res. 1145 by a vote of 88-2. The vote in the House had
been unanimous (416-0) in favor of the resolution. Passed as drafted by the White
House, with only one minor change, the joint resolution (P.L. 88-408; 78 Stat. 384)
was signed by the President on August 10, 1964. Unlike the Formosa Resolution, in
which Congress authorized the President to use the armed forces, the Gulf of Tonkin
resolution stated that Congress “approve[d] and support[ed] the determination of the
President, as Commander in Chief, to take all necessary measures ...” which included
the use of armed force. Expiration of the resolution was contingent upon the
President’s determination that the peace and security of Southeast Asia had been
116 CRS Interview with Dante Fascell, Feb. 23, 1979, quoted in ibid., pp. 307-308.
117 CRS interview with Sen. Charles Mathias, Jan. 25, 1979, quoted in ibid., p. 322.
118 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part I, p. 308.
119 Ibid., p. 357.
120 Ibid., pp. 320-321.
Growing dissatisfaction in Congress with the Gulf of Tonkin Resolution led to
its repeal in 1970.121 The beginning of the end for the resolution may have been
triggered by Johnson’s use of it in 1965 to expand the war. In 1966, Senator Morse
offered an amendment to repeal it. In 1967, approximately 25 Republicans in the
House asked for hearings to consider the possibility of modifying or replacing the
resolution. In that same year, the Senate Committee on Foreign Relations held
hearings on a national commitments resolution.122 The committee report included
this assessment of the resolution and the role of Congress in its passage:
The Gulf of Tonkin resolution represents the extreme point in the process of
constitutional erosion that began in the first year of this century. Couched in
broad terms, the resolution constitutes an acknowledgment of virtually unlimited
Presidential control of the Armed Forces. It is of more than historical importance
that the Congress now ask itself why it was prepared to acquiesce in the transfer
to the executive of a power which, beyond any doubt, was intended by the123
Constitution to be exercised by Congress.
The report on national commitments from the Committee on Foreign Relations also
suggested why Congress acted as it did in 1964.124 There was a sense of urgency.
Congress believed it was demonstrating its unity with, and support for, the President
by passing the resolution. The nation’s leaders and the public focused on national
security, yet paid little attention to the war power. The committee also stated that,
... in the case of the Gulf of Tonkin resolution, there was a discrepancy between
the language of the resolution and the intent of Congress. Although the language
of the resolution lends itself to the interpretation that Congress was consenting
in advance to a full-scale war in Asia should the President think it necessary, that
was not the expectation of Congress at the time. In adopting the resolution
Congress was closer to believing that it was helping to prevent a large-scale war
by taking a firm stand than it was laying the legal basis for the conduct of such
The committee concluded that in adopting a resolution with such ... sweeping
language ... Congress committed the error of making a personal judgment as to
how President Johnson would implement the resolution when it had a
responsibility to make an institutional judgment, first, as to what any President
would do with so great an acknowledgment of power, and, second, as to whether,
under the Constitution, Congress had the right to grant or concede the authority125
121 Ibid., p. 333.
122 Ibid., p. 335.
123 U.S. Congress, Senate Committee on Foreign Relations, National Commitments, report
to accompany S.Res. 187, 90th Cong., 1st sess., S.Rept. 90-797 (Washington: GPO, 1967),
124 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part I, p. 335.
125 U.S. Congress, Senate Committee on Foreign Relations, National Commitments, S.Rept.
President Johnson lost one of his strongest supporters on Vietnam policy,
Senator Fulbright, through his handling of the Dominican Republic crisis in 1965.
On April 24, 1965, the capital of the Dominican Republic, Santo Domingo, was the
scene of a rebellion. Johnson sent U.S. armed forces to the Dominican Republic on
April 28. Their mission was to evacuate American citizens and other nationals.
Initially, 400 Marines were deployed. By May 9, the U.S. had deployed nearly
19,000 troops.126 The Johnson Administration justified the large number of troops
by expressing its concern about a Communist takeover of the Dominican Republic,127
but it did not ask for, or broach the subject of, a congressional resolution.
Once the situation in the Dominican Republic had stabilized, Senator Fulbright,
and other critics in Congress, questioned what the Administration had done. Of
particular concern was the President’s use of war powers.128 Hearings were held for
nine days in fall 1965, but no committee report was issued. Fulbright’s complaints,
which were shared by others, were: “the change in emphasis from saving American
lives to preventing a Communist takeover; the Administration’s faulty evaluation of
and overreaction to the threat of Communism; poor intelligence and advice from
governmental officials on the scene; and, not least, the Administration’s lack of
candor with the American public.”129 A staunch supporter of Johnson who played a
crucial role in the passage of the Gulf of Tonkin resolution, Fulbright set out on a
different path after Johnson’s intervention in the Dominican Republic.130
Though eligible for reelection, Johnson declined to run again. A combination
of factors, including growing criticism of the war, led him to announce early in 1968
that he would not seek reelection.
Richard M. Nixon. Elected in 1968, Richard M. Nixon was the fourth
President saddled with the Vietnam conflict. Consistent with his emphasis on the
need for secrecy, Nixon was not inclined to share information, or consult, with
Congress. From its portrayal of South Vietnam’s ability to fend off the North
Vietnamese to the series of secret peace talks conducted by national security adviser
Henry Kissinger, the Administration tended not to make a consistent effort to keep
In the year leading up to Nixon’s inauguration, several significant events took
place. Beginning in late January 1968, and continuing into February, North Vietnam
launched the Tet offensive, a coordinated attack on South Vietnamese military and
government facilities. Communist troops also attacked the American embassy
compound in Saigon. Though producing, at best, mixed results in the eyes of the
126 Federation of American Scientists, “Operation Powerpack,” FAS Military Analysis
Network, available at [http://www.fas.org/man/dod-101/ops/powerpack.htm], visited May
128 Fisher, Presidential War Powers, p. 121.
129 Congressional Quarterly Service, Congress and the Nation, 1965-1968, vol. II
(Washington: Congressional Quarterly Service, 1969), p. 67.
130 Fisher, Presidential War Powers, p. 121.
North Vietnamese, the Tet offensive surprised American forces in Vietnam and the
U.S. government,131 and influenced the American public’s view of the war,
contributing to a decline in support for the war, a decline that had begun in 1967.132
On March 31, President Johnson announced, during a televised address, that he was
ordering a partial halt to the bombing of North Vietnam. Johnson also announced
that he would not seek reelection and asked North Vietnam to join in negotiations to
end the war. From May 13 through October 30, the U.S. and North Vietnam met 28
times, eventually reaching an agreement on expanding the peace talks. As part of the
agreement, Johnson ordered, on October 31, a complete halt to the bombing of North
Vietnam. Discussions about expanded talks continued through the end of the year and
into 1969, and, on January 18, all parties finally reached an agreement on procedural
issues, which paved the way for the beginning of negotiations on substantive
issues.133 In the United States, expectations of a negotiated settlement were fueled
by the year-long peace talks. The public and Congress shared a desire for the U.S.
to extricate itself, and particularly American troops, from Southeast Asia. By spring
1968, a majority of Americans had come to believe that U.S. involvement “in
Vietnam had been a mistake.”134 Widespread antiwar demonstrations and other
activities were a highly visible reminder of the public’s fatigue and disenchantment
with the war.
Nixon understood that a clear and decisive military victory in Southeast Asia
was not possible,135 but he believed that his policy of Vietnamization, which was
based on the Nixon Doctrine,136 would help him achieve a measure of success.
Moreover, the policy of Vietnamization would allow him to begin bringing American
troops home. Under President Johnson, the number of U.S. armed forces stationed
in Vietnam had increased greatly so that, by the time Nixon was inaugurated, 530,000
American military personnel were deployed in the area.137 One of Nixon’s first major
actions was to announce, six months after he took office, the first withdrawal of U.S.
troops. The thrust of Vietnamization was to couple the withdrawal of American
forces with increasing reliance on South Vietnamese troops to carry on military
131 Adam Land, “Tet Offensive,” Encyclopedia of the Vietnam War, p. 540; Congressional
Quarterly Service, Congress and the Nation,1965-1968, vol. II, pp. 101-102.
132 Land, “Tet Offensive,” Encyclopedia of the Vietnam War, p. 540.
133 Congressional Quarterly Service, Congress and the Nation, 1965-1968,vol. II, pp. 102-
134 Melvin Small, The Presidency of Richard Nixon (Lawrence, KS.: University Press of
Kansas, 1999), p. 66.
135 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III,
(Washington: Congressional Quarterly Service, 1973), p. 899.
136 As outlined by the President in an address on November 3, 1969, the Nixon Doctrine
stated: the U.S. would honor its treaty commitments; the U.S. would aid allies and countries
whose survival was vital to U.S. security if they were threatened by a nuclear power; and,
for other types of aggression, the U.S. would provide military and economic assistance when
requested, but the nation under threat retained primary responsibility for defending itself
(ibid., p. 869).
137 Small, The Presidency of Richard Nixon, p. 64.
operations on the ground.138 By November 1972, Nixon had reduced the number of
U.S. troops to 27,000.139 All remaining troops were evacuated in early 1973,
although U.S. air support for South Vietnamese combat troops continued.
Troop withdrawals assuaged the American public to a certain extent and were
touted by the Administration as evidence that Vietnamization was successful. Nixon
was criticized, though, for the slow pace of bringing troops home. The President
responded to such criticisms by describing the benefits of a gradual withdrawal.
First, he tied the rate of withdrawal to South Vietnam’s progress in developing its
military capabilities and the lessening of enemy military activities. Aiding South
Vietnam in these efforts, besides expectations of it ensuring success, was necessary,
in Nixon’s view, to avoid his being portrayed as the President who lost Vietnam and
to avoid the accompanying political fallout.140 Another consideration was bringing
the war to an end in an appropriate manner.141 For Nixon, and his Administration,
this meant achieving “peace with honor.”142 Time was needed for the Paris peace
talks to progress satisfactorily so that the United States, and other signatories, could
claim that peace with honor had been achieved.
Time alone would not be sufficient, however, in bringing the war to an
appropriate conclusion. As discussed below, the South Vietnamese were unable to
fend off the Viet Cong by themselves, yet the White House, consistent with its policy
of Vietnamization, had pledged to bring American troops home. Striving to meet its
commitments on both fronts, the Nixon Administration resorted to secretive
practices in employing the military. It “could escalate only covertly, since almost
all Americans demanded that the war wind down on Nixon’s watch.”143 For example,
very early in his first term, Nixon had U.S. military aircraft launch “thousands of
‘legal’ bombing raids against the North” in the name of protective reaction.
Protective reaction strikes into North Vietnam were allowed, but only against
antiaircraft sites in North Vietnam “whenever their radar locked on to American
reconnaissance flights.”144 In early 1969, the Administration also increased the
number of raids into Laos and began bombing portions of Cambodia in an effort to
disrupt the North Vietnamese supply system. The North Vietnamese used trails (such
as the Ho Chi Minh trail) that ran through Laos and Cambodia to transport supplies
to its forces in South Vietnam. Mindful of warnings from his Secretaries of Defense
and State and the leader of Cambodia about possible repercussions if the bombing
of Cambodia were made public, Nixon ordered that measures be taken to obscure the
true purpose of bombing missions. These included tampering with the navigational
138 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 899.
139 Ibid., p. 924.
140 Small, The Presidency of Richard Nixon, p. 67.
142 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, pp. 899,
143 Small, The Presidency of Richard Nixon, p. 66.
144 Ibid., p. 71.
systems on bombers and maintaining two sets of flight records, one with the actual
targets and the other with targets in South Vietnam.145
Nixon’s presidency coincided with legislative efforts by Congress to restore its
role in foreign affairs and exercising war powers, which had eroded over the years.
The Senate acted early in President Nixon’s first term, passing a national
commitments resolution, S.Res. 85, by a vote of 70-16, on June 25, 1969.146 Concern
about U.S. commitments abroad, and a lack of complete information about
commitments made by the executive branch, coalesced into support for a resolution.
The resolution defined “national commitment” as “the use of the armed forces on
foreign territory, or a promise to assist a foreign country, government or people by
the use of the armed forces or financial resources ....” The resolution stated further
that “a national commitment ... results only from affirmative action by the legislative
and executive branches” of government. The proper vehicles for taking such action,
as listed in the resolution, were a treaty, statute, or concurrent resolution.147
However, the resolution only expressed the sense of the Senate; it did not have the
force and effect of law.
The report accompanying the resolution described an imbalance between the
legislative and executive branches, and explained how the imbalance came to be:
Both the executive and the Congress have been periodically unmindful of
constitutional requirements and proscriptions, the executive by its incursions
upon congressional prerogative at moments when action seemed more important
than the means of its initiation, the Congress by its uncritical and sometimes
unconscious acquiescence in these incursions. If blame is to be apportioned, a
fair share belongs to the Congress. It is understandable, though not acceptable,
that in times of real or seeming emergency the executive will be tempted to take
shortcuts around constitutional procedures. It is less understandable that the
Congress should acquiesce in these shortcuts giving away that which is not its
to give, notably the war power, which the framers of the Constitution vested not148
in the executive but, deliberately and almost exclusively, in the Congress.
The fact that Congress has acquiesced in, or at the very least has failed to
challenge, the transfer of the war power from itself to the executive, is probably
the most important single fact accounting for the speed and virtual completeness
146 Consideration and passage of S. Res. 85 may be found at: “Senate Resolution 85 –
Resolution Concerning National Commitments” and “National Commitments,”
Congressional Record, vol. 115, Feb. 4, June 19, 20, 23, 24, 25, 1969, pp. 2603-2604,
147 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 857.
148 U.S. Congress, Senate Committee on Foreign Relations, National Commitments, report
to accompany S.Res. 85, 91st Cong., 1st sess., S.Rept. 91-129 (Washington: GPO, 1969), pp.
of the transfer. Why has Congress agreed to this rearrangement of powers which149
is without constitutional justification, and at its own expense?
Why did Congress acquiesce to the executive? Unfamiliarity with the nation’s new
role as a world power, “the cult of executive expertise,” and efforts by Congress to
atone for rejecting the Covenant of the League of Nations in 1919 by agreeing to
proposals for international involvement are cited by the report as factors that150
contributed to a mindset that favored acquiescence in foreign affairs. In its
assessment of Congress’s actions on the Formosa, Middle East, Cuba, and Gulf of
Tonkin resolutions, the committee report noted that each situation appeared to require
urgent action, there were no “firm historical guidelines” on what to do, the
resolutions were necessary as expressions of national unity, and executive actions
ballooned beyond original congressional expectations.151 The report also noted that,
following World War II, the government focused on national security, but paid little
attention to constitutional matters.
The committee recommended that, for any joint resolutions in the future
“involving the use or possible use of the Armed Forces,” Congress ought to debate
thoroughly each one so that its intent becomes known; use “authorize,” “empower,”
or similar words to show that Congress has the authority to “authorize the initiation
of war,” and that it is giving the President a power he would not otherwise have; be
as explicit as possible in the resolution about the circumstances, place, and purpose
for using military intervention; and include a sunset provision, which would assure
that Congress would have an opportunity to review its decision and terminate or
extend the grant of authority given to the President.152
Speaking at a news conference held prior to the resolution’s passage, Nixon
argued that a President should not have to consult with the Senate during a crisis. To
bolster his argument, Nixon noted that the President had to respond immediately in
1958, when Eisenhower sent troops into Lebanon, and in 1964, when Johnson
orchestrated the evacuation of missionaries from the Congo.153 Senator Mike
Mansfield (D-MT), echoing Eisenhower’s philosophy, countered that, by working in
concert with the Senate and thus showing a united front, the President’s hand would154
149 Ibid., p. 15.
150 Ibid., p. 16.
151 Ibid., p. 22.
152 Ibid., p. 33.
153 In 1958, the president of Lebanon, faced with internal and external threats to his
government, requested U.S. military assistance. American troops, ships, and aircraft were
deployed in July 1958. In 1964, a revolutionary government was established in
Stanleyville, Republic of the Congo. Reacting to the revolutionary government’s plans to
hold local European residents hostage, the U.S. and Belgium mounted a rescue operation in
154 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 856.
In March 1970, Nixon acknowledged publicly, for the first time, that the U.S.
had been involved in Laos and that the involvement had begun in 1962. Several
factors, including news reports of U.S. military activities in Laos and pressure from
some Senators, led Nixon to release a statement about the involvement. Assuring the
public that the U.S. did not have any ground troops in Laos, the President identified
how many Americans were involved in logistics and how many were serving as
advisers.155 (Several months prior to Nixon’s public admission, he had signed P.L.
921-171 (H.R. 15090; 83 Stat. 469), a defense appropriations act, which included a
provision that prohibited using any of the funds appropriated in the act “to finance
the introduction of American ground combat troops into Laos or Thailand.”) During
his address on March 6, Nixon also stated that U.S. aircraft were used only for
interdiction, reconnaissance, and combat support (when requested by the Laotian
government).156 What Nixon did not mention in his statement were Central
Intelligence Agency activities and the extent of U.S. air operations in Laos.157
The following month, Nixon turned his attention to Cambodia. On April 22,
1970, only two days after he had announced the withdrawal of 150,000 troops from
Vietnam, Nixon began planning to invade Cambodia. Having made his final decision
on April 28, the President informed the nation, in a televised address, on April 30.
These troops were not an invasion force, Nixon said, but were needed along the
border between Cambodia and South Vietnam to protect other U.S. troops as they
withdrew,158 to defend Cambodia against the North Vietnamese, and to capture the
enemy’s Central Office for South Vietnam.159 Senate Foreign Relations Committee
Chairman Fulbright promptly invited the President to meet with the committee on
this matter. Nixon’s response was to invite the Senate and House Committees on the
Armed Services to meet with him the morning of May 5. The Senate Committee on
Foreign Relations and the House Committee on Foreign Affairs were invited for the
afternoon. Congressional reaction to the meeting was “mixed.”160 During the
meeting, Nixon pledged to withdraw American troops from Cambodia by June 30,
1970. He repeated this pledge during a news conference on May 8.161 News of the
incursion into Cambodia was greeted by protests on most college campuses,
including the fateful protests at Kent State University in Ohio on May 4 and at
Jackson State University in Mississippi on May 15.
As part of its effort to establish a role for itself in foreign policy, Congress
revisited the Gulf of Tonkin resolution in February 1968, when the Senate
Committee on Foreign Relations held closed hearings on the events which led to its
155 Ibid., p. 908.
158 Ibid., p. 906.
159 Small, The Presidency of Richard Nixon, p. 78.
160 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 910.
passage.162 In 1970, the 91st Congress approved a foreign military sales bill that
included an amendment to repeal the Gulf of Tonkin resolution. President Nixon
signed P.L. 91-672 (H.R. 15628; 84 Stat. 2053) on January 12, 1971.163 Initially, his
Administration had opposed the repeal of the resolution, but later dropped its
opposition. On the floor of the Senate, Senator Robert Dole (R-KS) noted: “The
Tonkin Gulf resolution has never been used by President Nixon, and he has no
intention of using it. Indeed, he has made it clear that he has never relied upon it in
the conduct of American policy in Vietnam.”164
Congress took additional steps in early 1971, with the passage of two bills, to
insert itself into the foreign policy process. A supplementary foreign aid
authorization act, P.L. 91-652 (H.R. 19911; 84 Stat. 1942); which the President
signed on January 5, 1971, included the Cooper-Church amendment, which stated
... none of the funds authorized or appropriated pursuant to this or any other Act
may be used to finance the introduction of United States ground combat troops
into Cambodia, or to provide United States advisers to or for Cambodian military
forces in Cambodia.
The Cooper-Church amendment also stipulated that the President must inform the
Speaker of the House of Representatives and the chairman of the Senate Foreign
Relations Committee 30 days in advance if he intended to provide any additional
assistance to Cambodia. In case of emergency, the President was required to inform
Congress 10 days in advance. On January 11, 1971, Nixon signed P.L. 91-668 (H.R.
19590; 84 Stat. 2020), a defense appropriations act, which included a prohibition on
using any funds appropriated under the act for the introduction of U.S. ground troops
into Laos or Thailand.
However, the prohibition against American ground troops in Laos did not stop
Nixon from exercising other military options. On February 8, 1971, the U.S. assisted
South Vietnam in invading Laos, with the U.S. military providing close air support
to South Vietnamese ground troops. The objective was to neutralize North
Vietnamese supply bases serving the Ho Chi Minh trail, and the offensive ended
earlier than planned, on March 24.
The invasion ... was a disaster. The North Vietnamese knew that the South
Vietnamese were coming and were well dug in, and the South Vietnamese
162 U.S. Congress, Senate Committee on Foreign Relations, The U.S. Government and the
Vietnam War, 1961-1964, part II, p. 341. The Committee on Foreign Relations did not
publish a report on its 1968 activities.
163 Consideration and passage of the amendment may be found at: “Amendment of the
Foreign Military Sales Act” and “Conference Report on H.R. 15628,” Congressional
Record, vol. 116, June 22, 23, and 24, and Dec. 31, 1970, pp. 20745-20798, 20965-20969,
H.Rept. 91-1805, 91 Cong., 2 sess. (Washington: GPO, 1970).
164 Sen. Robert Dole, “Amendment of Foreign Military Sales–Conference Report,” remarks
in the Senate, Congressional Record, vol. 116, Dec. 31, 1970, p. 44514.
withdrew before achieving their goals.... The South Vietnamese lost 8,000 men
and the North Vietnamese 12,000; the communists downed between 100 and 200
helicopters and damaged 600.... Nixon had told congressional leaders two days
into the incursion that [the] Lam Son 719 [military operation] would prove that
Vietnamization was working. Instead, Americans saw shocking films on the
nightly newscasts of South Vietnamese clinging to helicopters taking them out
of Laos.... [President Nixon] told a press conference on 17 February that
everything “has gone according to plan” and that General Abrams assured him165
that the South Vietnamese “are fighting ... in a superior way.”
In a televised address on April 7, Nixon announced that 100,000 additional
troops would be brought home. Nixon attributed his decision to the success of166
Vietnamization, although his candor has since been questioned. The American
public was concerned, despite the announcement of another troop withdrawal, that
Nixon was expanding the war. Fueling the public’s mistrust of the Administration
was the disclosure and publication, in June 1971, of a collection of documents and
materials that came to be known collectively, and were published, as the Pentagon
Papers, a government study of U.S. involvement in Southeast Asia.167 The study
demonstrated “the comparative impotence of Congress in making foreign policy” and
“also demonstrated the executive branch’s general indifference to the constitutional168
prerogatives of Congress in the conduct of defense and foreign affairs.”
Concerned about the limits of executive privilege, the Senate Judiciary
Subcommittee on Separation of Powers held hearings, in July and August 1971, on169
this issue and a bill that had been introduced by Senator Fulbright, S. 1125. No
action was taken on the measure. If it had been enacted, S. 1125 would have required
that an individual who claimed executive privilege would have to do so in person and
present a written “assertion of the privilege from the President.”170 The penalty for
failure to comply would have been the loss of agency funds.
Later in 1971, President Nixon shared his philosophy on executive privilege
when he refused to submit to the Senate Committee on Foreign Relations information
on a plan for military assistance to other countries. In a letter to the committee,
The precedents on separation of powers established by my predecessors from
first to last clearly demonstrate ... that the President has the responsibility not to
make available any information and material which would impair the orderly
165 Small, The Presidency of Richard Nixon, pp. 83-84.
166 Ibid., p. 84.
167 The Pentagon Papers, as published by the New York Times; Pentagon history obtained
by Neil Sheehan, written by Neil Sheehan, et al. (New York: Quadrangle Books, 1971).
168 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 874.
169 See U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Separation of
Powers, Executive Privilege: The Withholding of Information by the Executive, hearings onndst
S. 1125, 92 Cong., 1 sess., July 27-29, Aug. 4-5, 1971 (Washington: GPO, 1971).
170 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 959.
function of the executive branch of the government, since to do so would not be171
in the public interest.
Subsequently, in passing S. 596 (92nd Congress) in 1972,172 Congress moved
toward requiring the White House to provide it with information about international
executive agreements. (Three years earlier, during the national commitments
hearings,173 it was revealed that the number of executive agreements made by
Presidents had grown and that some were kept secret.) S. 596 required the Secretary
of State to send the text of an executive agreement to Congress within 60 days of the
execution of the agreement. An exception was allowed for any agreement the
President deemed to “be prejudicial to the national security of the United States.”
These agreements would be sent only to the Senate Committee on Foreign Relations
and the House Committee on Foreign Affairs. Having been passed by the Senate
(81-0) on February 16, 1972, and the House (voice vote) on August 14, 1972, the
legislation, P.L. 92-403 (S. 596; 86 Stat. 619),174 was signed by the President on175
August 22, 1972.
Four years after the Tet offensive, the North Vietnamese launched another major
offensive operation against South Vietnam. Military attacks began on March 30,
1972, and, by May 1, the Communists had captured Quang Tri. The South
Vietnamese were saved from defeat by U.S. air power, which attacked Communist176
targets in South Vietnam and bombed Hanoi and Haiphong in North Vietnam.
South Vietnam was “still in desperate shape,” however, so Nixon ordered the mining177
of the harbors in Hanoi and Haiphong. The President announced his decision on
May 8, having alerted the Democratic and Republican leadership of the Senate and
172 Consideration and passage of S. 596 may be found at: “Transmittal to Congress of
International Treaties” and “Transmittal of Executive Agreements to Congress,”
Congressional Record, vol. 118, Feb. 16 and Aug. 14, 1972, pp. 4088-4095, 28085-28087.
See also U.S. Congress, Senate Committee on Foreign Relations, Transmittal of Executivendnd
Agreements to Congress, report to accompany S. 596, 92 Cong., 2 sess., S.Rept. 92-591
(Washington: GPO, 1972); U.S. Congress, House Committee on Foreign Affairs,nd
Transmittal of Executive Agreements to Congress, report to accompany S. 596, 92 Cong.,nd
2 sess., H.Rept. 92-1301 (Washington: GPO, 1972); U.S. Congress, Senate Committee on
Foreign Relations, Transmittal of Executive Agreements to Congress, hearings on S. 596,ndst
92 Cong., 1 sess., Oct. 20, 21, 1971 (Washington: GPO, 1971); U.S. Congress, House
Committee on Foreign Affairs, Subcommittee on National Security Policy and Scientific
Developments, International Executive Agreements, hearings on S. 596, H.R. 14365, andndnd
H.R. 14647, 92 Cong., 2 sess., June 19, 1972 (Washington: GPO, 1972).
173 See U.S. Congress, Senate Committee on Foreign Relations, National Commitments,
report to accompany S.Res. 85, 91st Cong., 1st sess., S.Rept. 91-129 (Washington: GPO,
174 P.L. 92-403, as amended, may be found at 1 U.S.C. 112b.
175 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, pp. 882-
176 Small, The Presidency of Richard Nixon, p. 89.
the House and the chairmen and ranking minority members of four committees of
each house one hour before his televised speech. Senator Mansfield said that one-
hour notice did not qualify as consulting with Congress, adding, “We were told after
After unsuccessful efforts in 1970, 1971, and 1972 to pass war powers
legislation,179 Congress, in 1973, overrode a veto to enact the War Powers
Resolution. On July 18, 1973, the House of Representatives passed H.J.Res. 542
(93rd Congress) by a vote of 244-170.180 The Senate passed its own version of war
powers legislation, S. 440 (93rd Congress), two days later by a vote of 72-18.181
Anticipating a presidential veto, congressional opponents did not mount a serious
challenge to the resolution.182 As passed by the House, H.J.Res. 542 would have
limited the commitment of U.S. troops abroad to 120 days (unless war had been
declared or the time period had been extended by Congress) and would have allowed
Congress to terminate the troop commitment at any time. As passed by the Senate,
the legislation would have limited the commitment of troops to 30 days, unless
Congress authorized, through a bill or a joint resolution, an extension.183 The result
of conference on the measures was a revamped version of H.J.Res. 542.
On October 10, 1973, the Senate approved the conference report by a vote of 75-
President Nixon vetoed the resolution on October 24. In his message to Congress
explaining the veto, Nixon stated that several of the provisions were unconstitutional
and expressed his concern that the resolution would “seriously undermine this
Nation’s ability to act decisively and convincingly in times of international crisis.”184
On November 7, 1973, Congress overrode Nixon’s veto. In the House of
178 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 926.
179 Ibid., p. 849.
180 Consideration and passage of H.J.Res. 542 may be found at: “War Powers of Congress
and the President,” “War Powers Act,” “Statement by the Hon. Clement J. Zablocki on the
War Powers Act of 1973,” “Conference Report on House Joint Resolution 542, War Powers
Resolution of 1973,” “War Powers Resolution of 1973 — Conference Report,” “War
Powers Resolution — Veto Message from the President of the United States (H.Doc. 93-
171),” “The Veto of the War Powers Resolution,” and “War Powers of Congress and the
President — Veto,” Congressional Record, vol. 119, June 25, July 18, July 20, July 31, Oct.
181 Consideration of S. 440 may be found at: “War Powers Act,” Congressional Record, vol.
182 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 850.
183 Congressional Quarterly Service, Congress and the Nation, 1973-1976, vol. IV,
(Washington: Congressional Quarterly Service, 1977), pp. 849-850.
184 U.S. President (Nixon), “Veto of the War Powers Resolution,” Public Papers of the
Presidents of the United States, 1973 (Washington: GPO, 1975), p. 893.
Representatives, the vote was 284-135.185 Eighty-six of 189 Republicans and 189 of
Twenty-five of 40 Republicans and 50 of 53 Democrats voted to override. The major
provisions of P.L. 93-148 (H.J.Res. 542; 87 Stat. 555) are:
!The President may commit troops to hostilities or situations where
hostilities are imminent only pursuant to a declaration of war, a
specific statutory authorization, or a national emergency created by
attack upon the United States, its territories or possessions, or its
!The President shall consult in every possible instance with Congress
before committing U.S. troops to hostilities or to situations where
hostilities are imminent. The President shall consult regularly with
Congress until U.S. troops are removed from hostilities or situations
where hostilities are imminent.
!The President shall submit, within 48 hours of substantially
expanding the number of U.S. combat troops already located in
another nation or introducing U.S. troops into hostilities or situations
where hostilities are imminent, a report to the Speaker of the House.
The report shall explain the circumstances warranting U.S. military
action, cite the constitutional and statutory authority the President is
using, and provide an estimate of the scope and duration of the
hostilities or U.S. involvement.
!Any commitment of troops shall be terminated within 60 calendar
days after the President has submitted a report unless Congress has
declared war, has specifically authorized the use of the armed forces,
has extended by law the 60-day period, or is unable to meet as a
result of an armed attack upon the United States. The initial period
of 60 days “shall be extended for not more than an additional thirty
days” if the President certifies, in writing, to Congress that such
additional time is needed for the safe and prompt removal of
Though some consider the War Powers Resolution a measure that benefits
Congress by mandating its involvement in decisions to commit U.S. troops abroad,
others maintain that the statute has not helped Congress restore the balance between
itself and the presidency. Several assessments conclude that the War Powers
Resolution helps to maintain the imbalance. As one of them asserted: “In fact, by
recognizing that the President may use armed force for up to 90 days without seeking
185 Fifteen Members of the House who initially had voted against H.J.Res. 542 and the
conference version chose to vote to override Nixon’s veto. Their reasons for changing their
positions on the measure varied: some Members did not want to appear to support Nixon’s
view of the resolution; others thought the override would be a step toward impeachment;
and, for Democrats, it was an opportunity to override successfully Nixon after having failed
in eight earlier efforts to override him. (Fisher, Congressional Abdication on War &
Spending, p. 64.)
or obtaining legislative authority, the resolution sanctions a scope of independent
presidential power that would have astonished the framers. The founding fathers
vested in Congress the power to initiate hostilities against foreign nations.186
Some Members expressed the same concern that the statute failed to reclaim lost
ground. Representative Vernon Thompson (R-WI) offered this assessment of the
resolution: “The clear meaning of the words certainly points to a diminution rather
than an enhancement of the role of Congress in the critical decisions [about] whether
the country will or will not go to war.”187 Another Member of the House, Robert
Eckhardt (D-TX), commented that the measure would allow the President “to
exercise a warmaking power” which the Constitution “exclusively assigned to the
Congress.”188 Even a principal sponsor of S. 440, Senator Thomas Eagleton (D-MO),
was adamantly opposed to the bill that emerged from conference and supported
What this bill says is that the President can send us to war wherever and
whenever he wants to. Troops could be deployed tomorrow to the Mideast under
this bill without our prior authority. All the President has to do is to make a
telephone call to Senator Mansfield and Senator Scott and say, “The boys are on
the way. I think you should know.” Consultation. There they are; 60 to 90 days.
Once those troops are committed the history of this country is replete with
examples; that once committed they remain.
... Despite what has been written and said about [this bill], it does not limit the
power of the President of the United States to wage war by himself.
Quite to the contrary. It attempts to emblazon into law, that unilateral189
The tendency of the Nixon Administration to operate in secret was evident in
national security adviser Henry Kissinger’s activities. During Nixon’s first term,
Kissinger refused “to testify before committees on the conduct of the Vietnam war,”
which “distressed” Members of Congress.190 His refusal to testify may have been
related to his participation in secret negotiations at the time. Although public
negotiations with North Vietnamese officials began in 1968, on January 25, 1972, the
President revealed that private peace negotiations had also been going on for two
years between Kissinger and North Vietnamese diplomats. They met 12 times,
186 Louis Fisher, Congressional Abdication on War & Spending (College Station, TX: Texas
A&M University Press, 2000), pp. 62-63.
187 Rep. Vernon Thompson, “War Powers Resolution — Veto Message from the President
of the United States,” remarks in the House, Congressional Record, vol. 119, Nov. 7, 1973,
188 Rep. Robert Eckhardt, “War Powers Resolution – Veto Message from the President of
the United States,” remarks in the House, Congressional Record, vol. 119, Nov. 7, 1973, p.
189 Sen. Thomas Eagleton, “War Powers of Congress and the President — Veto,” remarks
in the Senate, Congressional Record, vol. 119, Nov. 7, 1973, p. 36177.
190 Congressional Quarterly Service, Congress and the Nation, 1969-1972, vol. III, p. 959.
beginning on August 4, 1969, and continued through August 1971. Kissinger
continued to meet with North Vietnamese officials throughout 1972 and, on January
27, 1973, a peace treaty was signed in Paris. All remaining U.S. troops were
withdrawn from Vietnam on March 28, 1973.
Reelected in 1972 with 60.7% of the popular vote and 520 electoral votes,191
Nixon soon was embroiled in a scandal that eventually would lead to his resignation
under the cloud of possible impeachment. On June 17, 1972, seven men broke into
the headquarters of the Democratic National Committee at the Watergate hotel and
office complex. They were tried in January 1973. Five pled guilty and two were
convicted. After the break-in, Nixon learned about the connections among the seven
Watergate burglars, the Committee to Reelect the President (CREEP), and the White
House. Working with John Dean, White House counsel, John Ehrlichman, assistant
to the President for domestic affairs, and H. R. Haldeman, his chief of staff, Nixon
fashioned a plan for “political containment.”192
Their efforts were for naught as the investigations into Watergate also examined
the cover-up. The Washington Post reported, on June 3, 1973, that John Dean had
told Senate and Justice Department investigators193 that he had discussed the cover-
up with the President on a number of occasions.194 Watergate investigators also
uncovered evidence that the White House had known about, if not authorized, the
burglary of the office of Daniel Ellsberg’s psychiatrist, which occurred on September
3, 1971. (Daniel Ellsberg, a former defense analyst, was responsible for leaking the
Pentagon Papers to the press.) As additional information about White House
activities was revealed or discovered, Nixon’s ongoing attempts to limit the damage
had negative consequences. For example, the President sparred with the Senate
Select Committee on Presidential Campaign Activities over its request for
presidential tape recordings, first refusing to turn over the tapes, then offering to
provide edited versions, and so on, until compelled by a court order to produce the
tapes. In the so-called “Saturday Night Massacre” on October 20, 1973, Nixon
abolished the office of the special prosecutor for Watergate, headed by Archibald
Cox, and had Solicitor General Robert H. Bork, in his capacity as acting attorney
general, dismiss Cox. Attorney General Elliot L. Richardson had refused to remove
Cox and then resigned. Deputy Attorney General William D. Ruckelshaus also
refused and resigned. (In their absence, Bork, by law, became acting Attorney
General.) Nixon continued to maintain his innocence, but, in late July 1974, the
191 The Democratic candidate, George McGovern, received 37.5% of the popular vote and
17 electoral votes. Minor party candidates accounted for 1.8% of the popular vote and one
electoral vote (ibid., p. 23).
192 Small, The Presidency of Richard Nixon, p. 276.
193 On February 17, 1973, the Senate had established, by a vote of 70-0, the Senate Select
Committee on Presidential Campaign Activities. On May 18, 1973, the Attorney General-
designate, Elliot Richardson, selected Archibald Cox to serve as special prosecutor for
194 Carl Bernstein and Bob Woodward, “Dean Alleges Nixon Knew of Cover-up Plan,”
Washington Post, June 3, 1973, p. A1.
House Committee on the Judiciary approved three articles of impeachment.195 The
charges were obstruction of justice (approved by a 27-11 vote), abuse of power (28-
10), and contempt of Congress (21-17). On August 9, 1974, Nixon became the first
President to resign from office. He was succeeded by Gerald Ford, whom Nixon had
appointed to the vice presidency after Spiro Agnew had resigned on October 10,
Persian Gulf Conflict
Background. Under the leadership of Saddam Hussein, Iraq launched a
predawn attack, on August 2, 1990, against Kuwait, its small southeastern neighbor
bordering on the upper end of the Persian Gulf. Among the factors motivating this
assault was an $8 billion debt incurred by Iraq as a result of its eight-year war with
Iran. Approximately half of this amount was owed to Saudi Arabia, Kuwait, and
other Persian Gulf States. Iraqi leaders thought that this debt should be forgiven in
as much as Iraq had served as a shield against Iran. Moreover, Kuwait was
contributing to low international oil prices by exceeding its oil production quota set
by the Organization of Petroleum Exporting Countries (OPEC). As a result, Iraq’s
revenues from its own oil sales were adversely affected. Furthermore, Kuwait was
seen as drawing oil from the Rumaila oilfield, only a small part of which lay beneath
In mid-July 1990, Iraq accused Kuwait and the United Arab Emirates of
exceeding their OPEC quotas, and charged the former with pumping $2.4 billion
worth of oil that rightfully belonged to Iraq. Late in the month, Iraq began a buildup
of troops and military equipment in an area near its border with Kuwait. An attempt
at talks between Iraq and Kuwait in Jiddah, Saudi Arabia, on August 1 quickly broke
down. Hours later, Iraqi armed forces invaded Kuwait, and, by August 8, Baghdad
announced that the occupied nation was being annexed.197
Invasion Response. Although American intelligence had detected the
massing of Iraqi armed forces on the Kuwait border and their presence gave U.S.
leaders concern, the sudden invasion of Kuwait was unexpected. Speaking with
reporters at 8:05 a.m. on August 2, President George H. W. Bush said that “the
United States strongly condemns the Iraqi military invasion of Kuwait,” called “for
the immediate and unconditional withdrawal of all the Iraqi forces,” and
characterized the assault as “raw aggression.” He announced that United Nations
Ambassador Thomas Pickering, in conjunction with representatives from Kuwait,
had brought about an emergency convening of the Security Council for a “quick,
overwhelming vote condemning the Iraqi action and calling for immediate and
195 See U.S. Congress, House Committee on the Judiciary, Impeachment of Richard M.
Nixon, President of the United States, 93rd Cong., 2nd sess., H.Rept. 93-1305 (Washington:
196 At the time, Agnew was being investigated by the U.S. attorney in Baltimore for
allegedly receiving bribes and kickbacks from contractors while he served as the Baltimore
County executive and later as governor of Maryland.
197 Congressional Quarterly, Congress and the Nation, 1989-1992 (Washington:
Congressional Quarterly, 1993), p. 299.
unconditional withdrawal.” Finally, the President reported that “the Department of
State has been in touch with governments around the world urging that they, too,
condemn the Iraqi aggression and consult to determine what measures should be
taken to bring an end to this totally unjustified act.”198 Other steps included issuing
E.O. 12722, which declared a national emergency with regard to the threat to the
national security and foreign policy of the United States resulting from the Iraqi
invasion, and invoking statutory authorities blocking Iraqi government property,
freezing Iraqi government assets, and prohibiting transactions with Iraq.199 E.O.
12723 was issued to protect Kuwaiti government property and assets.200 These initial
actions reflected the willingness of the Bush Administration to work through the
United Nations (U.N.) and cooperatively, as well, with other nations having an
interest in the region to reverse Iraq’s aggression against Kuwait.
In his initial meeting with the press regarding the Kuwait invasion, President
Bush, when asked if he was contemplating any intervention or sending of troops,
replied: “I’m not contemplating such action.”201 Later that day, in an afternoon
exchange with the press, the President indicated that he had discussed options on the
Kuwait situation with relevant advisers, and proffered, “we’re not ruling any options
in, but we’re not ruling any options out.”202 However, as has been observed, the
President was embarking on a course of unilaterally deciding American policy
regarding the Kuwait crisis.203
Within Congress, many Members denounced Iraq’s attack upon Kuwait, some
hinting that the use of military force might be necessary as a response. In the House,
on August 2, a bill (H.R. 5431, 101st Congress) imposing sanctions on Iraq similar
to those set by E.O. 12722 was expedited through two committees, brought to the
floor, and, with virtually no debate, was adopted on a 416-0 vote. That same day, the
Senate, on a 97-0 vote, approved a resolution (S.Res. 318) endorsing the President’s
A primary concern for President Bush in the immediate aftermath of the Iraqi
invasion of Kuwait was deterring further advance by Iraqi forces into Saudi Arabia,
198 U.S. President (Bush), “Remarks and an Exchange with Reporters on the Iraqi Invasion
of Kuwait,” Public Papers of the Presidents of the United States, George Bush , 1990
(Washington: GPO, 1991), p. 1083.
199 E.O. 12722, Federal Register, vol. 55, Aug. 3, 1990, pp. 31803-31804.
200 E.O. 12723, ibid., p. 31805.
201 Ibid., p. 1084.
202 U.S. President (Bush), “Remarks and a Question-and-Answer Session with Reporters in
Aspen, Colorado, Following a Meeting with Prime Minister Margaret Thatcher of the
United Kingdom,” Public Papers of the Presidents of the United States, George Bush, 1990,
203 Jean Edward Smith, George Bush’s War (New York: Henry Holt, 1992), pp. 90, 169-170,
204 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 301-302;
Congressional Record, vol. 136, Aug. 2, 1990, pp. 21798-21809.
supplier of about 15% of U.S. oil imports alone. Supported by various congressional
leaders in this strategy, the President actively sought to convince the Saudi king of
the need for locating American armed forces within his nation. Apprised on August
6 of an Iraqi missile threat to his country, the king agreed to accept a U.S. military
presence. However, reportedly only one Member of Congress—Senator Sam Nunn
(D-GA), chairman of the Committee on Armed Services—was informed in advance
of the actual deployment of U.S. troops to Saudi Arabia.205 Congressional leaders
were informed shortly after the fact.206 By the end of the month, “the United States,
Great Britain and several other nations assembled formidable air and naval forces in
the Gulf region.”207 With E.O. 12727 of August 22, President Bush called some
50,000 military reservists to active duty to support the growing U.S. military presence
in Saudi Arabia.208 On August 28, the President held his first briefing with Members
of Congress regarding the Gulf crisis, although a White House briefing on these
matters had been held for a few congressional leaders on August 8.209
During August, President Bush also devoted considerable energy to building a
broad international coalition to oppose the Iraqi invasion and occupation of Kuwait.
This effort included not only political support rectifying the situation in Kuwait, but
also the commitment of combat forces to participate, if necessary, in the repelling of
the Iraqi invaders and the liberation of Kuwait. Among those Arab nations providing
troops were Egypt, Saudi Arabia, and Syria, as well as Bahrain, Kuwait, Morocco,
Oman, Qatar, and the United Arab Emirates. Other contributors included
Bangladesh, Pakistan, and Turkey, as well as such traditional American allies as
Canada, France, Great Britain, and Italy.210
The U.N. was another arena for retaliation against Iraq. On the day of the
invasion of Kuwait, the Security Council, in emergency session, unanimously
adopted Resolution 660 condemning the attack and calling for an immediate Iraqi
withdrawal. Four days later, on August 6, the Security Council approved Resolution
661 establishing a nearly total embargo on Iraqi commerce, with exceptions for
humanitarian shipments of medicine and some food. It did not, however, explicitly
authorize a blockade, which resulted in some debate over the enforcement of its
provisions. Eventually, on August 25, the Security Council, with Resolution 65,
authorized the use of force to ensure compliance with the embargo. A few months
later, on November 29, the Security Council, on a 12-2 vote, adopted Resolution 678,
205 Robert J. Spitzer, “The Conflict Between Congress and the President Over War,” in
Marcia Lynn Whicker, James P. Pfiffner, and Raymond A. Moore, eds., The Presidency and
the Persian Gulf War (Westport, CT: Praeger, 1993), p. 28.
206 U.S. President (Bush), “Letter to Congressional Leaders on the Deployment of United
States Armed Forces to Saudi Arabia and the Middle East,” Public Papers of the Presidents
of the United States, George Bush , 1990, pp. 116-117.
207 Congressional Quarterly, Congress and the Nation, 1989-1992, p. 302
208 E.O. 12727, Federal Register, vol. 55, Aug. 27, 1990, p. 35027.
209 See Smith, George Bush’s War, pp. 102, 143; U.S. President (Bush), “Remarks at a
White House Briefing for Members of Congress on the Persian Gulf Crisis,” Public Papers
of the Presidents of the United States, George Bush, 1990, pp. 1172-1174.
210 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 302-303.
authorizing the use of force to expel Iraq from Kuwait after January 15, 1991, thereby
providing 47 days for diplomats to attempt to persuade Iraq to withdraw peacefully
With the coming of fall, a broad consensus of public and congressional opinion
continued to support opposition to Iraq’s aggression and the protection of Saudi
Arabia. However, views were shifting.
On Capitol Hill, several congressional committees subjected administration
representatives to unexpectedly tough questioning over proposed accelerated
arms sales to Saudi Arabia. Many in Congress also began to insist that any move
to war must include close consultation with Congress, as well as a formal
congressional declaration or other authorization. Such sentiments came not only
from Democratic leaders, but from such prominent Republicans as Senate212
Minority Leader Robert Dole (R-KS) and Senator Richard Lugar (R-IN).
When resolutions supporting the actions taken by President Bush in response
to the invasion of Kuwait came under congressional consideration, the House version
(H.J.Res. 658, 101st Congress) was adopted on October 1 on a 380-29 vote,213 while
the Senate counterpart measure (S.Con.Res. 147) received a 96-3 endorsement the
following day.214 During the Senate discussion, Senators supporting the resolution
sought to assure opponents that it was not a Tonkin Gulf resolution for the Persian
Gulf. The exchange was somewhat reflective of more widespread public uncertainty
about a U.S.-led offensive against Iraq. According to a New York Times/CBS News
public opinion poll of October 8-10, the President’s Gulf policies were supported by215
A few weeks later, on November 8, the President announced that he was
reinforcing the 230,000 American troops already in the Persian Gulf. The Pentagon
indicated that some 200,000 personnel would be deployed, and the rotation of troops
in and out of the region was being discontinued. Some critics thought the troop
increase was premature and reflected a lack of confidence in the effects of economic
sanctions to induce Iraq to leave Kuwait. Congressional leaders were taken by
surprise because no mention of the anticipated personnel increase had been made at
Gulf situation briefings held for them by the Vice President on October 24 and the216
President on October 30. At a White House conference on November 14, the
President quelled demands for a special session of Congress (final adjournment of
211 Ibid., pp. 303-304, 305.
212 Spitzer, “The Conflict Between Congress and the President Over War,” p. 28. The
President provided an opportunity for such consultation on September 21 when he “met with
key members of Congress for a long and sober discussion about the [dangers of the Gulf]
situation,” Smith, George Bush’s War, pp. 159-160.
213 Congressional Record, vol. 136, Oct. 1, 1990, pp. 26749-26764, 26861-26862.
214 Ibid., Oct. 2, 1990, pp. 26931-26939, 26951-26959.
215 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 304, 306.
216 Smith, George Bush’s War, pp. 195-198.
the 101st Congress had occurred on October 28) and assured congressional leaders
that he was not seeking to go to war.217
On November 20, 45 Democratic House members filed suit in U.S. District Court
to obtain an injunction to bar Bush from using force to push Iraq from Kuwait
without first seeking congressional authorization. The suit, Ronald V. Dellums
et al. v. George Bush, was turned aside in a ruling handed down on December 12
by Judge Harold H. Green [sic]. In his opinion, Green said that the issue was not
yet “ripe,” meaning that it would have been premature for the court to rule since
Congress as a whole had not yet taken any stand on the issue. At the same time,218
however, Green added that Congress alone possessed the power to declare war.
Shortly thereafter, on November 29, the Bush Administration obtained Security
Council agreement on Resolution 678, authorizing the use of force to expel Iraq from
Kuwait after January 15, 1991.
When the 102nd Congress convened on January 3, 1991, the President’s party
was in minority status in both the House (267-167) and the Senate (56-44). With the
January 15 deadline of Resolution 678 looming on the horizon, many Members
wanted to give the sanctions more time to take effect and objected to going to war
shortly after the time allowed for diplomatic resolve had expired. Congress and the
Bush Administration also were in dispute over the President’s constitutional authority
to order offensive actions against Iraq when U.S. forces had not been attacked.219
The President had been reminded of this disagreement at a White House breakfast
conference with the leadership on the morning of the day that the new Congress
convened.220 With some sense that he had enough supporting votes, President Bush
sent a January 8 letter to the congressional leadership requesting the adoption of a
resolution “stating that Congress supports the use of all necessary means to
implement UN Security Council Resolution 678,” saying this “action would send the
clearest possible message to Saddam Hussein that he must withdraw without
condition or delay from Kuwait.”221 Attempts to fashion such a resolution were
briefly delayed by an attempt at negotiations between the United States and Iraq in
Geneva on January 9. The meeting contributed nothing to realizing an Iraqi
withdrawal, but the conduct of the Iraqi foreign minister “had the unintended effect
of solidifying support among some members of Congress for the president’s threat
to use force.”222
217 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 304-305.
218 Spitzer, “The Conflict Between Congress and the President Over War,”p. 29.
219 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 307-308; also see
Spitzer, “The Conflict Between Congress and the President Over War,” pp. 33-38, and
Louis Fisher, “The Power of Commander in Chief,” in Whicker, Pfiffner, and Moore, eds.,
The Presidency and the Persian Gulf War, pp. 45-61.
220 Smith, George Bush’s War, p. 239.
221 U.S. President (Bush), “Letter to Congressional Leaders on the Persian Gulf Crisis,”
Public Papers of the Presidents of the United States, George Bush , 1991 (Washington:
GPO, 1992), pp. 11-12.
222 Congressional Quarterly, Congress and the Nation, 1989-1992, p. 308.
Congress returned to finalizing a resolution on the Persian Gulf crisis on January
10. In both chambers, competing resolutions calling for continued reliance on
economic sanctions or authorizing the President to use “all means necessary” to expel
Iraq from Kuwait were produced. Voting occurred on January 12. In the Senate, the
economic sanctions resolution (S.J.Res. 1) was defeated on a 46-53 vote; the other
(S.J.Res. 2) was approved on a bipartisan 52-47 vote.223 In the House, the economic
sanctions resolution (H.Con.Res. 33) was rejected on a 183-250 vote; the action
authorization resolution (H.J.Res. 77) was adopted on a bipartisan 250-183 vote. 224
After the Senate agreed to the latter House resolution (H.J.Res. 77), it was presented
to the President and signed into law on January 14.225
For the United States, the offensive against Iraq—denominated “Operation
Desert Storm”—began in the early afternoon of January 16, less than 17 hours after
the expiration of the U.N. deadline. It began with attacks by aircraft and missiles
against strategic targets in Iraq and Kuwait and to gain quick air superiority over the
anticipated ground combat area. The next day, the Senate, on a 98-0 vote, adopted
a resolution (S.Con.Res. 2) commending and supporting the efforts and leadership
of the President in the Persian Gulf crisis. The following day, the House approved
the resolution on a 399-6 vote, the latter six Members voting “present.”226
While the initial aerial assaults were “highly successful,” Iraq struck back the
following day with missile assaults against Israel, perhaps seeking to antagonize that
nation sufficiently to enter the Gulf war and disrupt the coalition of forces marshaled
against it. At the urging of the Bush Administration, Israel did not enter the war.
Both houses of Congress adopted resolutions commending Israel’s performance in
this regard, the House doing so on January 23 (H.Con.Res. 41) on a 416-0 vote and
the Senate acting the next day (S.Con.Res. 4) with a 99-0 vote.227
Aerial bombing of Iraqi territory continued for 38 days, but neither a
capitulation nor an internal uprising against Saddam Hussein’s regime resulted. A
February 15 offer, qualified in various ways, from Iraq to withdraw from Kuwait was
rejected by President Bush. On February 21, a withdrawal plan negotiated by the
Soviet Union with Iraq was also turned down for failing to meet U.S. conditions for
ending the war. Then, on February 22, President Bush gave Iraq an ultimatum to
begin withdrawing from Kuwait by noon of the following day or face military
reprisal.228 The deadline passed with no withdrawal of Iraqi troops. In the early
223 Congressional Record, vol. 137, Jan. 12, 1991, pp. 937-1019.
224 Ibid., pp. 1034-1140.
225 Ibid., pp. 1030, 1141; 105 Stat. 3.
226 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 310-312;
Congressional Record, vol. 137, Jan. 17, 1991, pp. 1815-1825; ibid., Jan. 18, 1991, pp.
227 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 311-312;
Congressional Record, vol. 137, Jan. 23, 1991, pp. 2030-2044, 2052-2053; ibid., Jan. 24,
228 U.S. President (Bush), “Remarks on the Persian Gulf Conflict,” Public Papers of the
morning hours of February 24, a massive American, British, and French ground
force, moving far to the west of Iraq’s frontline fortifications, began an offensive
which, 100 hours later, would result in the liberation of Kuwait and the smashing of
the Iraqi army. A cease fire was established in the region on February 28.229 In
celebration of his accomplishments in the Persian Gulf crisis, President Bush was
invited to address a joint session of Congress on March 6. On that occasion, before
formally introducing the President, House Speaker Thomas S. Foley (D-WA),
departing from tradition, expressed to him “on behalf of the Congress and the
country, and through you to the members of our armed forces, our warmest
congratulations on the brilliant victory of the Desert Storm Operation.”230
A number of considerations affect a President’s efforts to inform Congress
about the commitment of American armed forces to a condition of overseas military
conflict. Not the least of these are the majority or minority status of the President’s
political party in the House and the Senate; the extent of public, congressional, and
international support for the President’s action; the number of personnel committed
and the conditions of harm they face; the anticipated duration of the commitment;
and the diplomatic conditions surrounding the commitment. Other important
considerations are the nature of the “informing” activity—a presidential speech to the
nation or a joint session of Congress, informal remarks by the President at the White
House, a briefing by an administration representative, testimony before a
congressional committee by administration officials, proffered documents, or a
conversation about a course of action. Also, who in Congress is being informed—the
leadership of both houses, selected committee chairs of one or both chambers, certain
Members who are supportive of the President’s action, or the membership of the
House and the Senate in joint session. Whether personally or through aides, the
President usually offers Congress information about events that have already
transpired. It is seemingly unusual for a President to include Members of Congress
directly in his decisionmaking, although advice may be solicited (or offered without
invitation) without any indication of its acceptability. Indeed, although a President
may honor the perceived obligation to inform Congress about the commitment of
American armed forces to a condition of overseas military conflict, Members may
well be dissatisfied with the manner in which the information is provided, the
contents offered, the continued unilateral direction of the commitment by the
President, and, in some cases, the broad expansion of a commitment made by
Congress in response to a specific incident.
Presidents of the United States, George Bush, 1991, pp. 165-166.
229 Congressional Quarterly, Congress and the Nation, 1989-1992, pp. 312, 314-315.
230 U.S. President (Bush), “Address Before a Joint Session of the Congress on the Cessation
of the Persian Gulf Conflict,” Public Papers of the Presidents of the United States, George
Bush, 1991, pp. 218-219.