Congress The Laos Watch

ON FEBRUARY 9 at the Harvard Law School Forum, Senator Charles McC. Mathias, a freshman Republican from Maryland, argued for the repeal of the Gulf of Tonkin Resolution. His own measure (SJ 166) would accomplish this as well as repeal "the mortmain of past Congressional resolutions that have been interpreted as relinquishing broad authority to the executive to intervene militarily around the world." Mathias was voicing the growing eagerness of the Senate to restrict the sway of the President in foreign affairs.

Last Wednesday in the Senate, Mathias boldly accused the Administration of turning Laos into "an arena for the repetition of the mistakes of our Vietnamese involvement." His colleagues quickly joined the attack. The victories of North Vietnam last week on the Plaine des Jarres had set off much nervous growling about U. S. engagement in a wider war. The Pentagon regards Laos, with its neutral but wobbly regime, as a possible base for Communist infiltration into Thailand. The Administration worries, also. By overrunning Laos, the Communists would dramatize the fragility of Vietnamization-much more effectively than by another Tet offensive. The casualties from Tet cost Hanoi dearly. It would take little military muscle, though, to smash the government of Prince Souvanna Phouma, and the Pentagon knows it. The Nixon Doctrine, however, commits the President to nonintervention and narrows his options in Laos.

The Senate would like to keep them narrowed. Senators Mansfield, Gore, Symington, Cooper, and Percy have deplored the secrecy about U. S. activities in Laos. Though Laird denies the presence of combat troops there, he refuses to discuss the U. S. role or specify the nature of current military operations on the Plaine des Jarres. Should the facts prove otherwise, he faces possible censure from the Senate. A Congressional amendment to a current appropriations bill forbids the dispatch of ground forces to Laos or Thailand. (This amendment contradicts the bilateral military agreements made with Thailand in 1962 and 1965.)

A MUTINOUS Senate is trying to recast the conduct of U. S. foreign policy. Vietnam has been the catalyst for defining a new relationship between the executive and legislative branches. Growing bolder each year, the Senate has taken tentative steps to curtail effectively the disposal of American troops overseas-first by the passage of the "national commitments" resolution in June and now by Mathias' attempt to repeal the so-called Cold War Resolution.

The national commitment resolution (SR 85), which tries to bar a President from pulling off another Vietnam, demands "affirmative action" from Congress before committing troops abroad. During the debates last June. Nixon scolded the Senate for tying his hands in global emergencies and cited the 1958 intervention in Lebanon and the 1964 Congolese airlift as such emergencies.

SR 85, though, scarcely restrains Mr. Nixon at all. It lacks the power to alter existing commitments, and executive agreements already link this country with the defense of 48 nations. These numerous executive agreements have eroded the Senate's treaty-making powers. In 1968, for example, 226 executive agreements were concluded. In that year also, the Senate belatedly learned that the Pentagon had assured General Franco of a continuing military presence on Spanish territory.

Ironically, the Gulf of Tonkin Resolution best illustrates the kind of consultation envisioned by SR 85-here the President asked for and received "affirmative action." Overlooking this, many Senators have exaggerated the import of SR 85. Mr. Mansfield called the resolution "one of all-Senate concern which goes to the nature of the constitutional responsibilities of this body." intimating that only a breakdown in the Constitution could allow Vietnam to occur. In fact, the Gulf of Tonkin Resolution fulfilled all the constitutional niceties. By expressing the sense of Congress, it eliminated the need for a declaration of war. At any time then or later, the Senate could have chosen to pit its will against the President's or submit his facts to closer scrutiny. Instead, the Congress gave the President car?? blanche authority to do whatever he like in Southeast Asia. Vietnam indicates a failure of will, not a failure of constitutional mechanisms.

SR 85 can only remind the Senate of its responsibilities, for the Senate will never supersede the President in foreign affairs. The legislature can delay, emasculate, or even prohibit executive action-but the initiative remains with the President. The Senate could not produce a foreign policy of its own so long as the executive retains a monopoly of action.

For one thing, the President is commander-in-chief. He has responsibility for 2700 overseas bases and 4000 square miles of territory in 30 countries. However the Senate may define "national commitment," these installations alone commit the U. S. to a policy of unilateral military response in much of the world. Such unilateral action would even cover, as Mr. Nixon showed last week, the right to authorize aerial bombings on the Plaine des Jarres or massive strategic assistance to the Royal Laotian Army. SR 85 merely compels the President to choose tactics which will command Congressional support or create Congressional hostility.

IF THE Senate wishes to assert itself, it can begin, as Senator Mathias has suggested, by repealing the Gulf of Tonkin Resolution and encouraging the President to seek a political solution to the war. At present the Gulf of Tonkin Resolution authorizes an almost boundless extension of the war into the North. The bombing has temporarily ceased, but "as long as the resolution remains on the books, it may be interpreted as authorizing further attacks."

Other Cold War Resolutions make similar grants of authority. The Formosa Resolution of 1955, for example, still gives the President the legal right to go to war with Communist China in defense of Quemoy and Matsu. Progressive though they are, the repeals advocated by Mathias demonstrate the negative character of Congressional participation in foreign affairs.

More significant than the repeal of the Cold War Resolutions is the breakup of the "bipartisan" coalition which has governed American foreign policy since World War II. Dissent on the left has either allowed or forced liberal Senators to split with the coalition. In former days, the Mathias resolution would have seemed treasonable. Congress feared to speak openly with the President because to do so would jeopardize "major national interests" or "let the troops down." Today Senators can even imply, if not boldly assert, that the President has usurped the Constitution.

But the President has not usurped the Constitution. The balance of power in foreign affairs has always been a political rather than a legal creation, and the Congress is simply taking a more active political role. It now resents the fait accomplis of military intervention-as in the Dominican Republic-which it has felt compelled to rubber stamp. Most encouraging of all. Congress has been willing to use its ultimate prerogative, the power of the purse, to block expansion of the war into Thailand and Laos. The fear that foreign policy is being made at the Pentagon, implicit in the Senate's concern for Laos, indicates a new legislative independence.