a circumscription will not necessarily prevent unwise or unpopular decisions or allow for the exercise of the full discretion which the Constitution intended Congress to have, and for it alone to exercise. Nevertheless, a resolution authorizing an appropriation does not constitute a declaration of war, nor can it constitutionally authorize the President to wage an undeclared war.

The Presidential assumption of powers vested exclusively in the Congress concern arrogations of power which convert republican institutions, framed for the purpose of guarding and securing the liberties of the citizen, into a government of executive supremacy. If the Constitution has such elastic, evanescent character the provisions for its amendment are entirely useless; presidentiallydetermined expediency would become then the standard of constitutional construction.

Under the rule of law, compliance with the forms and procedures of the law are as imperative as compliance with the substance of the law. A lynching is a totally inadequate substitute for a trial, regardless of the guilt of the victim. What Mr. Justice. Frankfurter wrote in another context is equally applicable here: "The history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U. S. 332, 347 (1947).

Under our system, constitutional powers must be exercised in a constitutional manner by constitutionally established institutions. Disregard of fundamentals in an area concerning the highest sovereign prerogative affecting the very lives and fortunes of its citizens in the interest of a short term expediency undermines "constitutional morality' to such an extent that the maintenance of the order itself is endangered." Friedrich, The Philosophy of Law in Historical Perspective, p. 216 (Chicago, 1963).

Finally, it cannot be over emphasized that even a declaration of war by the Congress would not negate the violations of our obligations assumed under the United Nations Charter or negate the violations of international law inherent in United States intervention in Vietnam.

CONCLUSION

A learned authority in international affairs has stated:

"Bluntly, all the rules about intervention are meaningless if every nation can decide for itself which governments are legitimate and how to characterize particular limited conflict. Unless we are prepared to continue a situation in which the legality of intervention will often depend upon which side of the fence you are on, and in which, therefore, our policy becomes one of countering force with force, we must be willing to refer questions of recognition (i. e., legitimacy of

the government involved) and characterization of a disorder (i. e., whether an armed attack from abroad or a civil war) to some authority other than ourselves. The United Nations is the most likely candidate for the role." 38

The United States has not observed the letter or spirit of its treaty obligations with respect to the action taken in Vietnam. World order and peace depend on the willingness of nations to respect international law and the rights of other nations. The United Nations is a symbol of the rejection of fatal policies which led to World War II, and an acceptance by the Peoples of the World of the principles of collective security, and the avoidance of war and the use of armed forces in the settlement of differences between nations. The United Nations was intended to ensure the preservation of international peace, security and justice, through rules of law, binding upon all member nations. The fundamental condition for the effective functioning of the United Nations is the observance on the part of all signatory nations of the obligations assumed under the Charter. Only in this way can the awesome potential of a Third World War be prevented.

We have concluded that the United States Government is in violation of its Treaty obligations under the United Nations Charter. We urge upon the Government that all steps be immediately taken to undo this illegality by an immediate return to an observance of the letter and spirit of the provisions of the United Nations Charter.

This is a solemn hour in history. We have a moral obligation to history to return to the high Purposes and Principles of the United Nations-to honor the pledges we solemnly assumed-to settle international disputes by peaceful means to refrain in international relations from the threat or use of force.

At this fateful hour, we do well to recall the prophetic dream of President Franklin D. Roosevelt, the architect of the United Nations, who upon his return from the Yalta conference in his last address to the Congress in March, 1945, said:

"The Crimea Conference ought to spell the end of the system of unilateral action, the exclusive alliances, the spheres of influence, the balances of power, and all the other expedients that have been tried for centuries-and have always failed. We propose to substitute for all these, a universal organization in which all peace-loving nations will finally have a chance to join."

38. Roger Fisher, Professor of Law at Harvard University, "Intervention: Three Problems of Policy and Law" found in Essays on Intervention, a publication of the Marshon Center for Education in National Security, Ohio State University Press, pp. 19-20.

Should we not, twenty years after President Roosevelt's hopeful dream-twenty years after the advent of the nuclear age with the awesome potentiality of incineration of our planet and the annihilation of our civilization and the culture of millenia-should we not "spell the end of the system of unilateral action . . . that has been tried for centuries-and has always failed"?

SPEECH BY SENATOR JOHN STENNIS TO JOINT SESSION OF MISSISSIPPI STATE LEGISLATURE, JANUARY 27, 1966

Mr. President, Mr. Speaker, members of the Mississippi State Legislature, and other friends, you honored me greatly by your invitation which I accepted with warm and deep appreciation. I visit with you today in the State and at a spot-we all love. Thirty-eight years ago this week, in this chamber and on this rostrum, I took my first oath of office as a member of the house of representatives from Kemper County. To serve here was a privilege that I cherish and shall always consider as one of my very highest honors.

You invited me to speak, primarily, on the war in South Vietnam. As I speak to you, I speak also to the people of our beloved State. It is a grim set of facts that I relate, disappointing conclusions that I reach, severe recommendations that I make.

Our situation in Vietnam is not hopeless but it is certainly not good. We face immediate and grave decisions that will affect the lives of every Mississippian and every American; decisions which could determine the future of America.

We are now at war. This is no police action. We are carrying a major part of the fighting in a bloody war and have been for many months. We also are furnishing much of the security for the local government; we are furnishing virtually all of the military supplies, materiel, and ammunition for the South Vietnamese Army. We are supplying a large part of the food and supplies necessary to support the civilian economy there.

A few illustrations emphasize how what was called a dirty little war has become a dirty big war. Last week the Secretary of Defense appeared before our committee and asked for an additional sum of $12.3 billion. As he testified, I recall that last August I estimated that in January of this year the stepped-up cost of the war in Vietnam would be $12 to $14 billion. This was hotly denied and I was chided some by portions of the national press. But I knew then certain developing facts that have now matured. I thought then that many of the rosy reports being given us were not justified by the realities. We are now confronted by the realities that our Prepardness Subcommittee has been pointing out for more than a year.

Many questions about this war puzzle our American citizens. For instance, how did we get there?

Looking back, it is clear that by small and sometimes imperceptible steps, one after the other, we became committed to an extent that now makes it impossible for us to withdraw.

Even though we did not sign the Geneva Accords of 1954, South Vietnam was promised by that agreement a chance to operate as a free nation, and elections were promised later as to the form of their government. Soon thereafter, and contrary to the agreement, South Vietnam was being infiltrated with Communists by the Government of North Vietnam. They, therefore, requested help from us in their effort to survive. Throughout the years, these requests became larger and more frequent. We first sent about 200 Air Force mechanics, merely to keep South Vietnam planes flying. I vigorously protested this in three speeches on the Senate floor during 1954 and pointed out that we were thereby committing members of our Armed Forces and thus committing our flag and our country in a mission that could develop into a shooting war on the mainland of Asia; moreover, I was concerned about this point-we were going in alone and if war came we would have to fight without substantial allies to share the burden. One step followed another, quite slowly, but things went from bad to worse; by 1962 we sent in our military men in larger and larger numbers and the Red guerrilla warfare increased. The South Vietnam Government weakened and by 1964 it was clear that we could not leave. In 1965 we built up to almost 200,000 men on the mainland, plus over 35,000 Air Force and Navy men who are rendering highly important service beyond the shoreline.

However, I do not now argue the question as to how we got there. We are already there in large numbers. We are already committed. By responding to their calls for help, we have put our country in issue; many of our men have fought there and have died there; our honor is at stake. The real question is: How can we win?

There are, of course, other questions. One is, with our great power, why have we not won a decisive and relatively quick military victory against a small and underdeveloped country like North Vietnam and the guerrillas in South Vietnam? The difficulties we confront are many. First, we are fighting in a distant land—exactly halfway around the globe. This presents problems in transporta

tion and supply. These problems are compounded by the fact that South Vietnam is an undeveloped country, has meager ports and other facilities which a modern Army absolutely requires.

Another serious problem is the physical and climatic conditions. Dense jungles, steaming rice paddies, torrential rains, high humidity, and grinding sand all handicap our military operations. Some jungles that we have dealt with are so dense that a 1,000 yards in a day is a good march for an infantry unit.

There is an excellent highway system in South Vietnam but it is now largely controlled by the Vietcong. This forces us to travel and transport supplies and food by air. The Communist Vietcong occupy at least 60 percent and possibly as much as 80 percent of the land area of this 600-mile-long country. They even have their own mail delivery system. They have a duplicate government of their own in many areas and collect taxes from the same persons from whom taxes are collected by the South Vietnamese Government.

Further, there is the instability of the local government of South Vietnam. In a period of 21 months the heads of the Government changed 9 times.

Another problem which confronts us is the nature of the war itself. The Vietcong and their North Vietnamese allies usually fight a guerrilla-type warfare. There are no fixed or defined battlelines. You cannot get a battle, as the term is ordinarily used. We must search them out in order to engage them. Largely, they fight when and where they choose. They hide or run away. In guerrilla warfare you have to have superior numbers of 4 or 5 to 1; some say 10 to 1.

One of the major reasons for our lack of progress in the war is that, because of diplomatic or political considerations, we have thus far only been permitted to fight what amounts to a holding action in South Vietnam itself. We are not permitted to bomb the port of Haiphong or the petroleum storage facilities and powerplants in North Vietnam. Many of our actions and many of the restrictions placed upon our fighting people stem from our concern that Red China may intervene with massive forces. Red China has 1 million men she is willing to commit and lose in this test war. We cannot win with the current limited objectives and restrictions on the permissible scope of operations.

Further, we have not as yet committed a sufficient number of troops to actually reverse the tide of the war and achieve a decisive military victory. We have enough troops in Vietnam to halt the military tide which was running against us until last April, but not enough to destroy the enemy.

It is clear at this point that, while we have stopped losing the war, we are not yet winning it. If we are to win the war decisively, I believe we must commit substantial numbers of additional American fighting men. I believe this will be done in time. By the end of 1966 there may very well be 350,000 to 400,000 American troops in Vietnam. While I am not a military strategist I would not be surprised if we were ultimately required to commit 600,000 men to the battle, but so far as I know there are no such plans now. By comparison, the maximum number committed in Korea at one time was 473,000.

Another problem is that our so-called allies have not rallied to our support. We now have more than 190,000 troops in Vietnam. The rollcall of other nations which have sent combat troops to South Vietnam is pitifully small. Only the Republic of Korea has furnished a significant combat force-about 21,000. Australia has sent about 1,500 troops and New Zealand about 100. The Philippines has sent only 72 noncombat men. Aside from these, we and our South Vietnamese allies shoulder the entire military burden. Thus, in time of need, and at a time when our only purpose is to try to check the spread of Asiatic communism, we turn in vain to those nations around the world to whom we have poured billions and billions of dollars out of our Treasury to rebuild their economies and create their military might. I am particularly concerned by the fact that West Germany, where for 20 years we have maintained an Army and now have more than 250,000 troops stationed in defense of Western Europe, has not as yet contributed a single man to our support in the fight in Vietnam. If our Western and Asiatic allies cannot or will not help us out with combat troops, they should be able to help us with strong and vigorous moral, political and diplomatic support. Even this type of assistance has been weak; otherwise, our peace offensive would have had a better chance of success.

I believe that the President should inform our NATO allies, in blunt and unmistakable terms, that we can no longer bear the major part of the burden of defending Western Europe if they are unwilling or unable to come to our assistance when we are so heavily committed in another part of the world.

58-320 0-66-pt. 146