213. Memorandum From the President’s Assistant for National Security Affairs (Kissinger) to President Nixon 1

  • SUBJECT
    • 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: [Page 947]

1.
The President can deploy U.S. forces in areas where hostilities are taking place or are threatened only under the following conditions:
a.
To repel attack on U.S. territory; to retaliate for such an attack; or to forestall direct and imminent threat of such an attack.
b.
To repel armed attack on U.S. forces outside the U.S.; or to forestall the direct and imminent threat of such an attack.
c.
To protect U.S. citizens while evacuating from a foreign country.
2.
Congress may terminate all such Presidential actions by Act or Joint Resolution.
3.
All such actions will be terminated after 30 days unless Congress takes positive action to extend such authority.

The Zablocki bill (Tab B)3 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,4 Javits and Symington,5 backed by their wide vote margin will almost certainly not yield enough to make the bill acceptable. While Doc Morgan 6 and Zablocki oppose the Senate version they do want a bill, and there is a 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.

Decision

We must now give the House conferees some clear signals and the options seem to be the following:

[Page 948]

Option 1.

The Secretary of State recommends (Tab C)7 that you approve telling Zablocki that you could accept the compromise resolution at Tab D8 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.

Pro

  • 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.

Con

  • —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.

Option 2.

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.

[Page 949]

Pro

  • —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.

Con

  • —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.

Recommendation:

That you approve Option 2. Clark MacGregor and John Dean concur. Colson9 concurs also.10

  1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 316, Subject Files, Congressional, Vol. 6. No classification marking. Sent for action. Haig initialed on Kissinger’s behalf. The memorandum also bears a stamped note indicating that the President saw it and a handwritten note indicating that Kissinger saw it. John F. Lehman, Jr. of the NSC Staff sent a draft to Haig on June 20 under a covering memorandum. (Ibid.)
  2. Attached but not printed. On December 6, 1971, Senators Jacob K. Javits (R–New York) and John C. Stennis (D–Mississippi), among others, introduced a bill (S.2956) establishing a 30-day limit on the President’s authority to use armed forces before obtaining specific Congressional authorization. The Senate passed the measure on April 13, 1972, marking the first time that either House of Congress had undertaken to codify the war powers left vague by the Constitution. The House passed an amended version by a 344–13 vote on August 14. The proposed legislation later died in conference. (Congressional Quarterly Almanac, vol. XXVIII (1972), pp. 842–852)
  3. Attached but not printed. Representative Clement J. Zablocki (D–Wisconsin) sponsored a joint resolution, H.J.Res.1, which the House passed in 1970 by a 288 to 39 margin and by a unanimous voice vote the next year. However, on April 20, 1972, seven days after the Senate had approved S.2956, the Senate Foreign Relations Committee sent H.J.Res.1 to the Senate floor with a recommendation that it not be passed. (Congressional Quarterly Almanac, vol. XXVIII (1972), pp. 851–852)
  4. Senator J. William Fulbright (D–Arkansas), Chairman, Senate Foreign Relations Committee.
  5. Senator Stuart Symington (D–Missouri).
  6. Representative Thomas E. Morgan (D–Pennsylvania), Chairman, House Committee on Foreign Affairs.
  7. Attached but not printed is Tab C, a 2-page memorandum from Rogers to the President, April 28.
  8. The proposed compromise Joint Resolution Concerning the War Powers of the Congress and the President at Tab D is attached but not printed.
  9. Clark MacGregor, Counsel to the President for Congressional Relations; John W. Dean III, Counsel to the President; and Charles W. Colson, Special Counsel to the President.
  10. The President initialed his approval of Option 2 on June 28. Kissinger sent a memorandum to Rogers on July 29, informing him that Nixon had “decided that Congressman Clement Zablocki should be informed that any compromise on this legislation that includes a specification of the President’s war powers or a time limitation on their exercise would be unacceptable.” (National Archives, Nixon Presidential Materials, NSC Files, Box 316, Subject Files, Congressional, Vol. 6)