345. Memorandum From Attorney General Katzenbach to President Johnson1
RE
- Whether further Congressional approval is necessary or desirable in connection with proposed deployment and use of troops in South Vietnam
You have asked for my views as to whether further Congressional approval should be sought in connection with the proposed deployment [Page 752] and use of troops in South Vietnam. What is contemplated, as I understand it, is (1) an increase of 30 to 40,000 in the number of troops stationed in South Vietnam, now approximately 50,000 and (2) the use of such troops, in one to two-battalion strength, for attacks on concentrations of Viet Cong forces.
The use of troops being contemplated would involve some departure from the functions generally served by U.S. ground forces previously, i.e., as “advisers” accompanying South Vietnamese forces, or as guards engaged in protecting U.S. installations and forces against attack. The operations being contemplated would involve attacks on “targets of opportunity” located as much as 150 miles distant from U.S. installations. The objective would be to have the U.S. forces act as a light, mobile reserve to South Vietnamese ground forces, able to strike quickly at the request of such forces when heavy concentrations of Viet Cong forces are detected. All of the activities being contemplated would be undertaken with the consent of the government of South Vietnam and would be limited to the territory of that country.
It is my view that, as a matter of law, further Congressional approval at this time is not necessary.
I
Under the Constitution the President has authority, as Commander-in-Chief of the armed forces (Article II, section 2), and as the sole organ of the United States in the field of foreign relations (United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 (1936)), to deploy and use the armed forces abroad. This authority has generally been broadly interpreted, and the armed forces have been used without legislative authority on scores of occasions including those involving “acts of war.”
In the absence of some action by Congress, the only legal limitation on the power of the President to commit the armed forces arises by implication from Article I, section 8 of the Constitution, under which only Congress is authorized to “declare war.” I believe it is a fair, although not uncontroversial, summary of nearly two centuries of history to say that the power to “declare war” is the power to confer substantially unlimited authority to use the armed forces to conquer and, if necessary, subdue a foreign nation. Unless such unlimited authority is exercised by the President, his legal position in using the armed forces is sustainable. It has been argued that the President may, without Congressional approval, take only urgent defensive measures, or that he may take only minor police measures that are not likely to commit the United States to full scale war. However, the action taken by President Truman in Korea, which is not widely regarded as having been illegal, shows how extensive the powers of the President may be. The same illustration also [Page 753] shows how inextricably tied together the legal and policy issues involved in such a situation necessarily are.
On many occasions the President has asked for Congressional approval of his action. When Congress responds to such a request the strictly legal effects of its action, if short of a declaration of war, are likely to be to limit rather than extend his authority. In the absence of Congressional action, the President’s legal position is sustainable so long as it is consistent with the Constitution, i.e., so long as his action does not amount to an infringement of the power of Congress to declare all-out war. There is authority, however, indicating that in areas where both Executive and Congressional powers are operative, the Executive must observe the limits of any Congressional authorization that may be enacted even though, in the absence of any authorization, his Executive powers under the Constitution would clearly go beyond the Congressional grant. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 661–662 (Justices Jackson and Clark); Little v. Barreme, 2 Cranch 170, 177–178 (Chief Justice Marshall). The Congressional authorization obviously can serve indispensable political purposes and it may serve to allay the legal doubts of narrow constructionists. These advantages must be weighed, however, against the legal limitations that may be effectively imposed by a Congressional authorization and its legislative history.
It is my view that as President you would have the authority, in the absence of any action by Congress, to use the armed forces in the manner now proposed. The commitment involved is certainly far less than all-out war, and the likelihood of involving the United States in all-out war as a result of the proposed moves, assuming that to be a relevant consideration, is relatively slight in view of the limitations on both the size of the force committed and the nature of the mission. It should be noted also that none of the acts proposed is an act of war against a foreign nation; that is to say, the activity involved would take place solely within the territory of South Vietnam and at the invitation of its government, and would be directed against forces claiming to be insurgents rather than the forces of a foreign nation.
I also believe it is clear that you have the legal authority to take the proposed measures under the terms and legislative history of the Vietnam Resolution of August 10, 1964 (P.L. 88–408, 78 Stat. 384),2 and the appropriation of May 7, 1965 (P.L. 89–18, 79 Stat. 109). It was repeatedly [Page 754] stated in connection with those enactments that the military measures previously taken, including the bombing of targets in North Vietnam, were being approved by Congress. In my judgment the steps now proposed, being confined to South Vietnamese territory, are of a kind with the steps already approved. There is some legislative history to the effect that the Congressional approval did not extend to involvement in large-scale land war in Asia. In this regard, however, there were repeated references to war in “division strength.” These limitations—if they exist—are not infringed by the limited measures now contemplated.
“Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in Southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.
“Sec. 3. This resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured by international conditions created by action of the United Nations or otherwise, except that it may be terminated earlier by concurrent resolution of the Congress.” [Footnote in the source text.]
I therefore conclude that, from a legal standpoint, there is no need to seek further Congressional approval at this time.
- Source: Johnson Library, National Security File, Country File, Vietnam, 7B Legality Considerations. No classification marking. The date is handwritten on the source text.↩
- This Resolution provides:
“The Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.
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