I: Nixon & Brezhnev
The world has been haunted since World War II by fear of a clash between the United States and the Soviet Union. Yet the Nixon-Brezhnev summit has been greeted almost everywhere with suspicion. There are two reasons for this odd reaction. One lies in the nature of the two powers; the other, in the personality of the two leaders.
The record of the two nuclear superpowers is such that the world fears collusion almost as much as conflict between them. The smaller and weaker nations have for a quarter century played an entirely new variant of the balance of power game. They have played one big power off against another. Castro was able to survive in Cuba by playing Moscow against Washington. Turkey was able to resist Russian pressure after World War II by playing Washington against Moscow. Ernest Bevin’s swift and shrewd manipulation of the Red bogey got Western Europe its Marshall Plan. The powers in between fear that if the cold war really ends they will lose their leverage. They also fear that if cold war turns to collaboration their independence may be further weakened. The ideal situation for them is a state of Russo-American tension strong enough to keep the two nuclear monsters at odds but not so acute as to precipitate war between them.
In this perspective, détente between Washington and Moscow is also an attempt by the giants to recover greater freedom of action, to prevent tails from wagging dogs. The Middle East is the prime example and the détente will be worth while if it frees each side sufficiently from its intransigent clients to make possible a more or less imposed solution which would fit both a Palestinian Arab state and Israel into the mosaic of a stabilized Middle East.
The other reason for a widespread cynicism lies in the character of the two leaders. These are, to put it plainly, a couple of con men. If the Pentagon Papers and Watergate taught us anything, it is that what we are allowed to see in these affairs of state is a carefully prepared pantomime. What they’re really up to, what they really said to each other, what they discussed with their own advisers before trying to con each other, all this we do not know and probably never will. The accidental revelations show bigger liars at work than anyone imagined.
Nixon we now know. But Brezhnev, too, did not get to the top in the murderous game of Kremlin politics by being just the sweet old folksy grandpappy we saw on TV. Moscow is full of Watergates. When two experienced four-flushers like Nixon and Brezhnev play Frankie and Johnny, the rest of us would be idiots to see this as a sort of Abie’s Leninist Rose, demonstrating that co-existence is not only possible but fun.
How alike the old Red and the old Red-baiter proved to be in the clinches! How could Nixon fail to fall for this proletarian leader who loves fast racing cars and Westerns, who shares his admiration for that honest worker John Wayne, who was thrilled by a Cadillac from Nixon and a hug from Chuck Connors. The heirs of Lenin aspire to become the lapdogs of capitalism, and ask to make Siberia a bigger Venezuela.
Both Brezhnev and Nixon are men whose words bear no resemblance to their actions. Nothing is too brazen to embarrass them. There was no sign of a gulp on either side when, in his farewell, Nixon—the bomber of Cambodia—told Brezhnev—the murderer of Czech freedom—that “there can only be true peace in a world in which the weak are as safe as the strong.” Our B-52s never dropped anything so odoriferous.
Another prime example of saying anything that sounds good no matter how untrue was in the final communiqué where they reaffirmed that their “ultimate objective is general and complete disarmament.” This was celestial corn pone, waiting hot and fresh for us in Kingdom Come.
One phase of the summit where a window can be opened on reality lies in their nuclear accords. One of these promises “serious efforts” (have they up to now been less than serious?) for an agreement on offensive arms next year. The other promises to avoid nuclear war by pledging both sides not to use force or the threat of force against other countries. White House spokesmen have already explained that this does not apply to the bombing of Cambodia or its possible resumption over North Vietnam while Brezhnev of course nowhere promises to give up the Brezhnev Doctrine allowing Russia to intervene in its satellite states whenever they try for a little freedom.
The easiest way for the two superpowers to relieve fears of nuclear war would be to sign a pledge never to use nuclear weapons in a first strike against other countries. This would ease one of the main points of anxiety in the world, China’s fear of a nuclear first strike by Russia. The easiest way for them to slow down the arms race would be to sign a treaty extending the nuclear test ban to cover all tests—underground as well as atmospheric. This could be policed by satellite and it would stop the development of new monsters which threaten to upset the nuclear balance of terror. There is no sign of either—or of any other concrete step—in their joint “accords.”
On the contrary, behind the scenes, everything the Nixon Administration has done since the end of SALT I has been to undercut the possibility of a successful and meaningful SALT II. Normally one does not break up a successful team. Our chief negotiator, Gerard C. Smith, was ousted and with him most of his top team. The Arms Control and Disarmament Agency has been devitalized by separating it from the negotiations, by getting rid of the staff Smith built up, and cutting its tiny budget by a third from $10 million to $6.7 million. This is peanuts compared to the $80 billion plus we are spending for the armed services.
A veteran cold warrior and conventional cookie-pusher, Alexis Johnson, with no nuclear arms talk experience, has replaced Smith. Three hard liners, two from Rand, have been named to the top posts at the arms control agency. The new top man, Fred Iklé, has yet to be confirmed thanks to Senator Fulbright’s deliberate delay of the confirmation hearings. But Iklé already has the approval of Senator Jackson and the military-industrial complex because he advocates new nuclear weaponry, particularly such as will allow us to make “surgical” strikes against enemy forces without “holding populations hostage.” This is the old Teller line aimed to make thermo-nuclear war “thinkable” again.
In the cascade of speeches, toasts, and accords it is hard to find anything of substance. Never did two men turn out so many words that said so little. The only visible reality is public relations. Just as Barker was Nixon’s agent for breaking into Watergate, Brezhnev was his means of breaking into the Watergate hearings. Just as Peking and Moscow two years ago helped Nixon pose as a dove of peace in his re-election campaign while turning Indochina into a collection of bomb craters, so Brezhnev has come to his rescue again in a tight spot. The puzzle is what Brezhnev is getting in return. Or is the internal economic and political mess in the Soviet Union so severe that Brezhnev can be kept running just on atmospherics until Nixon has firmly established the Thieu dictatorship in South Vietnam? That is the key to, and the origin of, this “détente.”
II: War Curbs: How the Senate Flunks
Ever since the Cambodian invasion three years ago Congress has been wrestling with war powers legislation. Though nothing would seem more urgent than steps to curb the swollen war powers of the President, these efforts have aroused remarkably little interest. Now they are approaching a climax. Two separate war powers bills have been reported out of committee in the House and Senate respectively for final debate and passage. These bills, both supported by broad coalitions across the political spectrum, represent a curious evolution. The bill on which the normally conservative House Foreign Affairs Committee has been working since 1970 has become more radical, while the one produced by bargaining inside the normally more liberal Senate Foreign Relations Committee has become more conservative.*
There was dramatic, if little noticed, evidence of this turnabout in the report released by the Senate committee June 15 on its measure, the so-called Javits-Stennis-Eagleton bill. The report was accompanied by sharply dissenting “supplemental views” from the chairman of the committee, Senator Fulbright. He warned that the Senate bill might widen instead of restricting the President’s power to wage “undeclared” wars.
No bill was ever equipped with a finer collection of loopholes. It sets a thirty-day limit on “undeclared” wars. But this is accompanied by a loophole “so gaping,” Senator Fulbright points out, “as to nullify the thirty-day limitation entirely.” Hostilities can go on if the President “determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of the Armed Forces…requires the continued use of such Armed Forces in the course of bringing about a prompt disengagement from such hostilities.”
Nixon prolonged the Vietnam war for four years, Fulbright observes, on just this excuse of maintaining “the safety of the Armed Forces.” The “prompt disengagement” he promised in 1968 is now in its fifth year, with no end in sight in the skies over Cambodia. His new Secretary of Defense, James R. Schlesinger, even told the Senate Armed Services Committee at his confirmation hearing that under certain circumstances we might resume the bombing of North Vietnam.
The word “prompt” in the bill is not the word “prompt” to be found as yet in any dictionary. “Whatever time is required to disengage,” Senator Javits explained to the House Foreign Affairs Committee on March 7, “Section 5 does not specify except for the word ‘prompt,’ and it seems to me under that section you would be able to continue for an indefinite time and still meet the standards of the statute.” That is promptness in slow motion.
As further reassurance to our Cambodian warriors, there is another loophole. The Senate bill, unlike the House bill, would not apply to hostilities in which the armed forces were engaged on the effective date of its enactment. Since the agreement with Hanoi is only a cease-fire, the White House could argue that it did not end hostilities but merely suspended them pending a peace agreement. On this basis the White House might claim that the exemption clause in the Senate bill also allowed resumption of naval and air bombardment in Vietnam and Laos if no peace treaty could be obtained.
A long road lies ahead before effective war powers legislation can be enacted. Last year war powers bills were passed by both houses but it proved impossible to reconcile them. This year, as fresh debate begins, a second hurdle looms ahead. Even if the House and Senate finally agree on one bill, it faces the prospect of a presidential veto. The Nixon Administration, like those of Truman and Johnson before it, has laid claim to sweeping power to use the armed forces as the President sees fit irrespective of action by Congress.
Normally the President can muster the one-third plus one vote in either house which would be sufficient to uphold a veto. But this year the revulsion against the continued bombing of Cambodia and the Watergate revelations provide a fighting chance to overcome a veto. War powers bills have now passed the Senate once and the House twice by margins wide enough to override the President. So the fresh debate getting underway can be more than an academic exercise. This makes it urgent to evaluate the differences between the two bills.
From a constitutional and practical point of view, the most fundamental objection to the Senate bill is that it can be used to legalize first strike or pre-emptive attacks. When the Constitution was written, an early draft giving Congress alone the power to “make” war was changed to “declare” war in order, as Madison and Gerry explained, to give the executive “power to repel sudden attacks.” But Section 3 of the Senate bill on “Emergency Use of the Armed Forces” allows the President not only to “repel an armed attack” but “to forestall the direct and imminent threat of such an attack” against either US territory or US armed forces abroad. This could prove to be quite a loophole.
Senator Fulbright points out that this provision could be used “to justify actions such as the Cambodian intervention of 1970 and the Laos intervention of 1971, both of which were explained as being necessary to forestall attacks on American forces.” It could also be “construed,” he observes, “as sanctioning a pre-emptive, or first strike, attack solely on the President’s own judgment.” To legalize pre-emptive or first strike attacks is to weaken the constitutional war powers of the Congress, not to strengthen them; to widen the powers of the President, not to restrict them.
This loophole is especially dangerous in the nuclear age. The Senate Foreign Relations Committee report on its war powers bill says “the real issue” is “whether our constitutional process can be reconciled with the requirements of the nuclear age.” This sounds profound but is fallacious. The problem to which war powers legislation addresses itself has little to do with the nuclear age. The one point at which it does is a point the Senate committee evades. A sudden nuclear attack would raise no constitutional problem. Should radar screens show nuclear missiles on their way, no President would have to wait for Congress to act. The President’s acknowledged power “to repel sudden attacks” gives him ample authority.
The war powers bills are a belated response to wholly conventional military actions during the past quarter century in which the only danger of nuclear war was that we ourselves might initiate it. This is a danger against which neither the House nor the Senate bill makes provision, though this is a point at which “the requirements of the nuclear age” can easily be reconciled with “our constitutional process.”
The wars against North Korea, North Vietnam, Cambodia, and Laos were not waged without a congressional declaration of war because split-second nuclear contingencies left no time for Congress to act. The presidents who waged them simply preferred for one reason or another not to consult Congress. These were imperialist, not nuclear wars; the presidents acted to protect “the frontiers of freedom” abroad while shrinking them at home.
But in both the Korean and Indochinese wars voices have been raised from time to time in this country, Nixon’s foremost among them, for using nuclear weapons if conventional means did not bring the enemy to his knees. For a nation that still talks of the “infamy” of Pearl Harbor, a sudden nuclear first strike against a small non-nuclear power would take Number One rank among the infamies of human warfare. This would not be one of those nuclear acts requiring a split-second decision. It is an eventuality in which there would be plenty of time to consult Congress and the country. Senator Fulbright argues again as he did unsuccessfully last year for an amendment declaring that “except in response to a nuclear attack or to an irrevocable launch of nuclear weapons, the President may not use nuclear weapons without the prior explicit authorization of the Congress.”
What if this or some future president thought it necessary to use nuclear weapons “to forestall the direct and imminent threat” of an attack on US troops abroad? He could use that provision of the Javits-Stennis-Eagleton bill as authority for his action.
The amendment proposed by Senator Fulbright was first suggested to the Senate Foreign Relations Committee in testimony last year from the Federation of American Scientists. Senator Fulbright, in urging it again, notes that the United States “has not, like the People’s Republic of China, announced that it will not make first use of nuclear weapons.” Senator Fulbright argues that the Congress has authority to fill that gap.
A shift from conventional to nuclear weapons “cannot realistically,” Fulbright asserts, “be considered a mere change of tactics in a continuing conflict” but would “constitute the beginning of a whole new war,” and Congress by legislation now “must retain control” over such an eventuality. The peace movement ought to press for such an amendment in both Houses.
The Senate bill ran into a trap by attempting, in Section 3, to “codify” the situations in which the President may plunge the country into war without a declaration by Congress. The Zablocki bill, the House bill, avoids this trap by making no effort at codification. It merely says that whenever the President commits US troops to hostilities without a declaration of war by Congress, he must immediately report this action to the Congress and he must terminate the action within 120 days unless the Congress declares war or directs a disengagement sooner.
Senator Fulbright believes that the House bill in this respect is preferable to the bill reported out by his own committee. He says of the Senate bill,
I am apprehensive that the very comprehensiveness and precision of the contingencies listed in Section 3 may be drawn upon by future Presidents to explain or justify military initiatives which would otherwise be difficult to explain or justify. A future President might, for instance, cite “secret” or “classified” data to justify almost any conceivable foreign military initiative as essential to “forestall the direct and imminent threat” of an attack on the United States or its armed forces abroad.
There is another respect in which the House bill is superior to the Senate bill. The former would give Congress power to veto troop deployments abroad. Once hostilities begin, it is difficult to get congressional action to stop them. All the atavistic instincts that war mobilizes make men hesitate to vote against a war already begun. It is easier to stop the drift to war at the earlier stage of troop deployments which may covertly commit the country to war.
Section 3 of the House bill provides that the President must make a report to the Congress whenever he commits US combat forces “to the territory, airspace, or waters” of any foreign nation or “substantially enlarges” combat forces already located in foreign territory. These deployments would be made subject to veto by the Congress.
The Senate bill provides for congressional control over deployments only “where imminent involvement in hostilities is clearly indicated by the circumstances.” By then—however one interprets so ambiguous a standard—it may be too late.
Perhaps the biggest difference between the two bills is in the means they provide for enforcement. The House bill provides that if Congress wanted to stop a war or a troop deployment, it could do so by concurrent resolution. This would require a majority vote and would not be subject to presidential veto. The Senate bill provides that if Congress wants to stop a war it must do so by bill or joint resolution. Either would be subject to veto. No congressional rein on the President’s war powers could become effective unless a two-thirds majority were available in both houses. That could be quite a hurdle.
The House committee cites extensive precedents for action by concurrent resolution. It points out that most of |the World War II legislation conferring extraordinary war powers on Roosevelt (including the Lend Lease Act, the First War Powers Act, the Emergency Price Control Act, the Stabilization Act of 1942, and the War Labor Disputes Act) provided that the powers granted to the President would come to an end on adoption of concurrent resolutions to that effect, i.e., resolutions not subject to presidential veto. In more recent times, as the House committee points out, both the Middle East Resolution and the Gulf of Tonkin Resolution provided for their repeal by concurrent resolution.
The logic of making undeclared wars subject to cessation by concurrent resolution was cogently summed up in the House report. “When the President commits US Armed Forces to hostilities abroad on his own responsibility,” the House report says, “he has, in effect, assumed congressional authority. Under this war powers resolution the Congress can rescind that authority as it sees fit by a concurrent resolution and thereby avoid the problem of a presidential veto.” Otherwise the Constitution has really been changed to give the war power to the President and a one-third minority, plus one vote, in either house of Congress, for that is enough to sustain a veto.
It is difficult to understand why Fulbright alone was left to warn against the loopholes in the Senate bill as it was reported out of his committee. Among the sixty-one sponsors of the Javits-Stennis-Eagleton bill are such liberal members of the Foreign Relations Committee as Mansfield, Muskie, McGovern, Humphrey, Brooke, Case, Pell, Percy, and Symington. Their friends and supporters ought to ask for an explanation. How could they sponsor a watchdog against “undeclared war” with such rubber teeth? Now is the time to urge them to amend it on the floor.
July 19, 1973
For the constitutional and historical background see my “Can Congress Stop the President?” NYR, April 19, 1973. ↩