392. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon1
- War Powers Legislation
The Javits–Stennis bill on war powers passed the Senate 68 to 16 despite our strong opposition on grounds of its being unconstitutional and unwise (Text at Tab A).2 It provides:
- The President can deploy U.S. forces in areas where
hostilities are taking place or are threatened only under the
- To repel attack on U.S. territory; to retaliate for such an attack; or to forestall direct and imminent threat of such an attack.
- To repel armed attack on U.S. forces outside the U.S.; or to forestall the direct and imminent threat of such an attack.
- To protect U.S. citizens while evacuating from a foreign country.
- Congress may terminate all such Presidential actions by Act or Joint Resolution.
- All such actions will be terminated after 30 days unless Congress takes positive action to extend such authority.
The Zablocki bill (Tab B) has twice passed the House with our tacit support. It is a moderate sense of the Congress resolution that provides that the President should consult with Congress before acting—if circumstances permit. If that is not possible then the President must report to Congress promptly. Justice, State and NSC agree that this bill presents no problem.
A conference committee will soon meet to reconcile the two bills. The Senate Conferees, Fulbright, Javits and Symington, backed by their wide vote margin will almost certainly not yield enough to make the bill acceptable. While Doc Morgan and Zablocki oppose the Senate version they do want a bill, and there is real danger that they will accept a compromise that you would still have to veto. Apart from the political disadvantages of vetoing a war-powers bill, it is quite possible that the Senate might override, and an outside possibility that the House might do the same.
We must now give the House conferees some clear signals and the options seem to be the following:
The Secretary of State recommends (Tab C)3 that you approve telling Zablocki that you could accept the compromise resolution at Tab D as a final fallback position. It includes a specification of presidential war-powers and endorses a thirty-day cutoff, both from the Javits bill; but both merely sense of Congress and non-binding. It includes the requirement to report in writing taken from the Zablocki bill.
- —Zablocki is critical to the outcome in the House. He is accorded deference on the issue by Morgan. He has said that he wants a bill of some kind. Whatever bill he brings back to the House will pass, and he could possibly muster enough to override a veto. He believes that the two bills are so far apart that there is no hope that his will prevail. If we show willingness to compromise he will be more likely to hold firm against the absolutely unacceptable elements of Javits.
- —The Senate Conferees will be unlikely to accept any compromise that is only sense of Congress, thus hanging up the conference and precluding any bill—the best possible outcome.
- —If it is finally passed, the reporting requirement presents no real problem, and the remainder is sense of Congress and not binding.
- —Although not binding the President would be giving approval to a constitutional position that Justice and State agree is not valid and seeks on its face to curtail the powers of the Presidency.
- —Final passage of such a bill would have the same adverse diplomatic impact abroad as the Javits bill.
- —Although not legally binding, passage would erect formidable political constraints to observe the letter of the restrictive measures.
- —Signalling compromise now weakens the Executive position of strong opposition and makes an ultimate veto a less credible threat.
Inform Zablocki that no compromise is acceptable if it includes a specification of the President’s War Powers or a time limitation on their exercise.
- —Will demonstrate that the Administration is determined and should stiffen the House Conferees.
- —Makes veto threat credible and agreement in conference most unlikely.
- —Does not compromise the President’s constitutional prerogatives or the reliability of U.S. commitments to allies.
—If Zablocki is told that there will be no compromise on those points, he may feel he is being used to prevent any bill from emerging and he wants a bill. He may therefore agree to the Javits formula as a last resort and work in the House for a 2/3 majority to override.
That you approve Option 2. Clark MacGregor and John Dean concur. Colson concurs also.4
- Source: National Archives, Nixon Presidential Materials, NSC Files, Subject Files, Box 316, Congressional, Vol. 6. No classification marking. Sent for action. A notation on the memorandum indicates that the President saw it. Haig signed the memorandum for Kissinger. A notation on the memorandum indicates Kissinger saw it.↩
- Tabs A, B, and D are attached but not printed.↩
- Document 391.↩
- The President initialed Option 2. At a meeting of the Legislative Interdepartmental Group on July 7 Brower “asked about the Presidential decision not to support Congressman Zablocki’s fallback position on War Powers.” The group agreed that “State doesn’t have to tell Zablocki of the President’s decision immediately and may await a more opportune moment. A meeting of the President with Zablocki may eventually be necessary.” (Summary of conclusions, July 7; Library of Congress, Manuscript Division, Kissinger Papers, Box CL 302, Legislative Interdepartmental Group)↩