CONTENTS
SUMMARY
Two separate but closely related issues confront Congress
each time the President introduces armed forces into a situation
abroad that conceivably could lead to their involvement in
hostilities. One issue concerns the division of war powers
between the President and Congress, whether the use of armed
forces falls within the purview of the congressional power
to declare war and the War Powers Resolution. The other issue
is whether Congress concurs in the wisdom of the action. This
issue brief does not deal with the substantive merits of using
armed forces in specific cases, but rather with the congressional
authorization for the action and the application and effectiveness
of the War Powers Resolution. The purpose of the War Powers
Resolution (P.L. 93-148, passed over President Nixon's veto
on November 7, 1973) is to ensure that Congress and the President
share in making decisions that may get the U.S. involved in
hostilities. Compliance becomes an issue whenever the President
introduces U.S. forces abroad in situations that might be construed
as hostilities or imminent hostilities. Criteria for compliance
include prior consultation with Congress, fulfillment of the
reporting requirements, and congressional authorization. If
the President has not complied fully, the issue becomes what
action Congress should take to bring about compliance or to
influence U.S. policy. A new issue has become congressional
authorization of U.N. peacekeeping or other U.N.-sponsored
actions. For over 30 years, war powers and the War Powers Resolution
have been an issue in U.S. military actions in Asia, the Middle
East, Africa, Central America, and Europe. Presidents have
submitted 114 reports to Congress as a result of the War Powers
Resolution, although only one (the Mayaguez situation) cited
Section 4(a)(1) or specifically stated that forces had been
introduced into hostilities or imminent hostilities. Congress
invoked the War Powers Resolution in the Multinational Force
in Lebanon Resolution (P.L. 98-119), which authorized the Marines
to remain in Lebanon for 18 months. In addition, P.L. 102-1,
authorizing the use of U.S. armed forces concerning the Iraqi
aggression against Kuwait, stated that it constituted specific
statutory authorization within the meaning of the War Powers
Resolution. On November 9, 1993, the House used a section of
the War Powers Resolution to state that U.S. forces should
be withdrawn from Somalia by March 31, 1994; Congress had already
taken this action in appropriations legislation. More recently,
war powers have been at issue in former Yugoslavia/Bosnia/Kosovo,
Iraq, Haiti, and in responding to terrorist attacks against
the U.S. After combat operations against Iraqi forces ended
on February 28, 1991, the use of force to obtain Iraqi compliance
with U.N. resolutions remained a War Powers issue, until the
enactment of P.L. 107-243, in October 2002, which explicitly
authorized the President to use force against Iraq, an authority
he exercised in March 2003.
A longer-term issue is whether the War Powers Resolution is
an appropriate and effective means of assuring congressional
participation in actions that might get the United States involved
in war. Some observers contend that the War Powers Resolution
has not significantly increased congressional participation,
while others emphasize that it has promoted consultation and
served as leverage. Proposals have been made to strengthen,
change, or repeal the resolution. None have been enacted to
date.
MOST RECENT DEVELOPMENTS
On March 2, 2004, the President reported to Congress "consistent
with the War Powers Resolution" that, on February 29, he had
sent about "200 additional U.S. combat-equipped, military personnel
from the U.S. Joint Forces Command" to Port-au-Prince, Haiti
for a variety of purposes, including preparing the way for
a UN Multinational Interim Force, and otherwise supporting
UN Security Council Resolution 1529 (2004).
On February 25, 2004, the President reported to Congress "consistent
with the War Powers Resolution" that, on February 23, he had
sent a combat-equipped "security force" of about "55 U.S. military
personnel from the U.S. Joint Forces Command" to Port-au-Prince,
Haiti to augment the U.S. Embassy security forces there and
to protect American citizens and property in light of the instability
created by the armed rebellion in Haiti.
BACKGROUND AND ANALYSIS
Under the Constitution, war powers are divided. Congress has
the power to declare war and raise and support the armed forces
(Article I, Section 8), while the President is Commander in
Chief (Article II, Section 2). It is generally agreed that
the Commander in Chief role gives the President power to repel
attacks against the United States and makes him responsible
for leading the armed forces. During the Korean and Vietnam
wars, the United States found itself involved for many years
in undeclared wars. Many Members of Congress became concerned
with the erosion of congressional authority to decide when
the United States should become involved in a war or the use
of armed forces that might lead to war. On November 7, 1973,
Congress passed the War Powers Resolution (P.L. 93-148) over
the veto of President Nixon.
The War Powers Resolution states that the President's powers
as Commander- in-Chief to introduce U.S. forces into hostilities
or imminent hostilities are exercised only pursuant to (1)
a declaration of war; (2) specific statutory authorization;
or (3) a national emergency created by an attack on the United
States or its forces. It requires the President in every possible
instance to consult with Congress before introducing American
armed forces into hostilities or imminent hostilities unless
there has been a declaration of war or other specific congressional
authorization. It also requires the President to report to
Congress any introduction of forces into hostilities or imminent
hostilities, Section 4(a)(1); into foreign territory while
equipped for combat, Section 4(a)(2); or in numbers which substantially
enlarge U.S. forces equipped for combat already in a foreign
nation, Section 4(a)(3). Once a report is submitted "or required
to be submitted" under Section 4(a)(1), Congress must authorize
the use of forces within 60 to 90 days or the forces must be
withdrawn. (For detailed background, see CRS Report RL32267, The
War Powers Resolution: After Thirty Years, and CRS Report
RL31133(pdf), Declarations of War and Authorizations for
the Use of Military Force: Background and Legal Implications). It
is important to note that since the War Powers Resolution's
enactment, over President Nixon's veto in 1973, every President
has taken the position that it is an unconstitutional infringement
by the Congress on the President's authority as Commander-in-Chief.
The courts have not directly addressed this question.
United Nations Actions
U.N. Security Council resolutions provide authority for U.S.
action under international law. Whether congressional authorization
is required under domestic law depends on the types of U.N.
action and is governed by the Constitution, the U.N. Participation
Act (P.L. 79-264, as amended), as well as by the War Powers
Resolution. Section 8(b) of the War Powers Resolution exempts
only participation in headquarters operations of joint military
commands established prior to 1973.
For armed actions under Articles 42 and 43 of the U.N. Charter,
Section 6 of the U.N. Participation Act authorizes the President
to negotiate special agreements with the Security Council,
subject to the approval of Congress, providing for the numbers
and types of armed forces and facilities to be made available
to the Security Council. Once the agreements have been concluded,
further congressional authorization is not necessary, but no
such agreements have been concluded. Some Members have sought
to encourage negotiation of military agreements under Article
43 of the U.N. Charter. Questions include whether congressional
approval is required only for an initial agreement on providing
peacekeeping forces in general, or for each agreement to provide
forces in specific situations, and how such approvals would
relate to the War Powers Resolution.
Section 7 of the U.N. Participation Act authorizes the detail
of up to 1,000 personnel to serve in any noncombatant capacity
for certain U.N. peaceful settlement activities. The United
States has provided personnel to several U.N. peacekeeping
missions, such as observers to the U.N. Truce Supervision Organization
in Palestine. In these instances, controversy over the need
for congressional authorization has not occurred because the
action appeared to fall within the authorization in Section
7 of the Participation Act. Controversy has arisen when forces
have been deployed in larger numbers or as possible combatants.
In the 103rd Congress, Members used several vehicles in seeking
some control over future peacekeeping actions wherever they
might occur. Both the Defense Appropriations Act for FY1994,
P.L. 103-139 (Section 8153), and for FY1995, P.L. 103-335 (Section
8103), stated the sense of Congress that funds should not be
used for U.N. peacekeeping or peace enforcement operations
unless the President consulted with Congress at least 15 days
in advance whenever possible. Section 1502 of the Defense Authorization
for FY1994, P.L. 103-60, required the President to submit by
April 1, 1994, a report on multinational peacekeeping including
the requirement of congressional approval for participation
and the applicability of the War Powers Resolution and the
U.N. Participation Act.
Along similar lines, the conference report on the Department
of State Appropriations Act for FY1994, H.R. 2519 (P.L. 103-121,
signed October 27, 1993), called for the Secretary of State
to notify both Appropriations Committees 15 days in advance,
where practicable, of a vote by the U.N. Security Council to
establish any new or expanded peacekeeping mission. The Foreign
Relations Authorization Act, P.L. 103-236, signed April 30,
1994, established new requirements for consultation with Congress
on U.S. Participation in U.N. Peacekeeping Operations. Section
407 required monthly consultations on the status of peacekeeping
operations and advance reports on resolutions that would authorize
a new U.N. peacekeeping operation. It also required 15 days'
advance notice of any U.S. assistance to support U.N. peacekeeping
operations and a quarterly report on all assistance that had
been provided to the U.N. for peacekeeping operations. To permit
Presidential flexibility, conferees explained, the quarterly
report need not include temporary duty assignments of U.S.
personnel in support of peacekeeping operations of less than
twenty personnel in any one case.
The following discussion provides background on major cases
of U.S. military involvement in overseas operations in recent
years that have raised War Powers questions.
Former Yugoslavia/Bosnia
The issue of war powers and whether congressional authorization
is necessary for U.S. participation in U.N. action (see above
discussion) was also raised by efforts to halt fighting in
the former territory of Yugoslavia, particularly in Bosnia.
The United States participated without congressional authorization
in airlifts into Sarajevo, naval monitoring of sanctions, aerial
enforcement of a "no-fly zone," and aerial enforcement of safe
havens.
Because some of the U.S. action has been taken within a NATO
framework, action in Bosnia has raised the broader issue of
whether action under NATO is exempt from the requirements of
the War Powers Resolution or its standard for the exercise
of war powers under the Constitution. Article 11 of the North
Atlantic Treaty states that its provisions are to be carried
out by the parties "in accordance with their respective constitutional
processes," inferring some role for Congress in the event of
war. Section 8(a) of the War Powers Resolution states that
authority to introduce U.S. forces into hostilities is not
to be inferred from any treaty, ratified before or after 1973,
unless implementing legislation specifically authorizes such
introduction and says it is intended to constitute an authorization
within the meaning of the War Powers Resolution. Section 8(b)
states that nothing in the Resolution should be construed to
require further authorization for U.S. participation in the
headquarters operations of military commands established before
1973, such as NATO headquarters operations.
On August 13, 1992, the U.N. Security Council adopted Resolution
770 calling on all nations to take "all measures necessary" to
facilitate the delivery of humanitarian assistance to Sarajevo.
On August 11, 1992, the Senate had passed S.Res. 330 urging
the President to work for such a resolution and pledging funds
for participation, but saying that no U.S. military personnel
should be introduced into hostilities without clearly defined
objectives. On the same day, the House passed H.Res. 554 urging
the Security Council to authorize measures, including the use
of force, to ensure humanitarian relief. Thus, both chambers
of Congress supported action but not by legislation authorizing
the use of U.S. forces. For details of congressional actions
relating to Bosnia from 1993 through 1995, see CRS Report RL32267, The
War Powers Resolution: After Thirty Years.
In late 1995, the issue of war powers and Bosnia was raised
again as President Clinton sent over 20,000 American combat
troops to Bosnia as part of a NATO-led peacekeeping force.
In December 1995, Congress considered and voted on a number
of bills and resolutions, but the House and Senate could not
come to consensus on any single measure. Subsequently, President
Clinton in December 1996, agreed to provide up to 8,500 ground
troops to participate in a NATO-led follow-on force in Bosnia
termed the Stabilization Force (SFOR). On March 18, 1998, the
House defeated by a vote of 193-225, H.Con.Res. 227, a resolution
directing the President, pursuant to section 5(c) of the War
Powers Resolution to remove United States Armed Forces from
the Republic of Bosnia and Herzegovina.(H.Rept. 105-442). (For
additional information, see CRS Issue Brief IB93056, Bosnia:
U.S. Military Operations, and CRS Report RL32267, The
War Powers Resolution: After Thirty Years.)
Kosovo
The issue of presidential authority to deploy forces in the
absence of congressional authorization, under the War Powers
Resolution, or otherwise, became an issue of significant controversy
in late March 1999 when President Clinton ordered U.S. military
forces to participate in a NATO-led military operation in Kosovo.
This action has become the focus of an on-going policy debate
over the purpose and scope of U.S. military involvement in
Kosovo. The President's action to commit forces to the NATO
Kosovo operation also led to a suit in Federal District Court
for the District of Columbia by Members of Congress seeking
a judicial finding that the President was violating the War
Powers Resolution and the Constitution by using military forces
in Yugoslavia in the absence of authorization from the Congress.
The Kosovo controversy began in earnest when on March 26,
1999, President Clinton notified the Congress "consistent with
the War Powers Resolution", that on March 24, 1999, U.S. military
forces, at his direction and in coalition with NATO allies,
had commenced air strikes against Yugoslavia in response the
Yugoslav government's campaign of violence and repression against
the ethnic Albanian population in Kosovo. Prior to the President's
action, the Senate, on March 23, 1999, had passed, by a vote
of 58-41, S.Con.Res. 21, a non-binding resolution expressing
the sense of the Congress that the President was authorized
to conduct "military air operations and missile strikes in
cooperation with our NATO allies against the Federal Republic
of Yugoslavia (Serbia and Montenegro)."
Subsequently, the House voted on a number of measures relating
to U.S. participation in the NATO operation in Kosovo. On April
28, 1999, the House of Representatives passed H.R. 1569, by
a vote of 249-180. This bill would prohibit the use of funds
appropriated to the Defense Department from being used for
the deployment of "ground elements" of the U.S. Armed Forces
in the Federal Republic of Yugoslavia unless that deployment
is specifically authorized by law. On that same day the House
defeated H.Con.Res. 82, by a vote of 139-290. This resolution
would have directed the President, pursuant to section 5(c)
of the War Powers Resolution, to remove U.S. Armed Forces from
their positions in connection with the present operations against
the Federal Republic of Yugoslavia. On April 28, 1999, the
House also defeated H.J.Res. 44, by a vote of 2-427. This joint
resolution would have declared a state of war between the United
States and the "Government of the Federal Republic of Yugoslavia." The
House on that same day also defeated, on a 213-213 tie vote,
S.Con.Res. 21, the Senate resolution passed on March 23, 1999,
that supported military air operations and missile strikes
against Yugoslavia. On April 30, 1999, Representative Tom Campbell
and 17 other members of the House filed suit in Federal District
Court for the District of Columbia seeking a ruling requiring
the President to obtain authorization from Congress before
continuing the air war, or taking other military action against
Yugoslavia.
The Senate, on May 4, 1999, by a vote of 78-22, tabled S.J.Res.
20, a joint resolution, sponsored by Senator John McCain, that
would authorize the President "to use all necessary force and
other means, in concert with United States allies, to accomplish
United States and North Atlantic Treaty Organization objectives
in the Federal Republic of Yugoslavia (Serbia and Montenegro)." The
House, meanwhile, on May 6, 1999, by a vote of 117-301, defeated
an amendment by Representative Istook to H.R. 1664, the FY1999
defense supplemental appropriations bill, that would have prohibited
the expenditure of funds in the bill to implement any plan
to use U.S. ground forces to invade Yugoslavia, except in time
of war.
Congress, meanwhile, on May 20, 1999 cleared for the President's
signature, H.R. 1141, an emergency supplemental appropriations
bill for FY1999, that provided billions in funding for the
existing U.S. Kosovo operation.
On May 25, 1999, the 60th day had passed since the President
notified Congress of his actions regarding U.S. participation
in military operations in Kosovo. Representative Campbell,
and those who joined his suit, noted to the Federal Court that
this was a clear violation of the language of the War Powers
Resolution stipulating a withdrawal of U.S. forces from the
area of hostilities occur after 60 days in the absence of congressional
authorization to continue, or a presidential request to Congress
for an extra 30 day period to safely withdraw. The President
did not seek such a 30-day extension, noting instead that the
War Powers Resolution is constitutionally defective. On June
8, 1999, Federal District Judge Paul L. Friedman dismissed
the suit of Representative Campbell and others that sought
to have the court rule that President Clinton was in violation
of the War Powers Resolution and the Constitution by conducting
military activities in Yugoslavia without having received prior
authorization from Congress. The judge ruled that Representative
Campbell and others lacked legal standing to bring the suit
(Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999)).
Representative Campbell appealed the ruling on June 24, 1999,
to the U.S. Court of Appeals for the District of Columbia.
The appeals court agreed to hear the case. On February 18,
2000, the appeals court affirmed the opinion of the District
Court that Representative Campbell and his co-plaintiffs lacked
standing to sue the President. (Campbell v. Clinton, 203 F.3d
19 (D.C. Cir. 2000). On May 18, 2000, Representative Campbell
and 30 other Members of Congress appealed this decision to
the United States Supreme Court. On October 2, 2000, the United
States Supreme Court, without comment, refused to hear the
appeal of Representative Campbell thereby letting stand the
holding of the U.S. Court of Appeals. (Campbell v. Clinton, cert.
denied, 531U.S. 815 Oct. 2, 2000). On May 18, 2000, the
Senate defeated by, a vote of 47-53, an amendment to S. 2521,
the Senate's version of the Military Construction Appropriations
Act, FY2001, that would have, among other things, terminated
funding for the continued deployment of U.S. ground combat
troops in Kosovo after July 1, 2001 unless the President sought
and received Congressional authorization to keep U.S. troops
in Kosovo. (For detailed discussion of major issues see Kosovo
and U.S. Policy, CRS Report RL31053, Kosovo and Macedonia:
U.S. and Allied Military Operations, CRS Issue Brief IB10027, War
Powers Litigation Since the Enactment of the War Powers Resolution, CRS
Report RL30352(pdf)).
Iraq-Post 1991
During the week of October 3, 1994, Iraq began sending two
additional divisions to join regular forces in southern Iraq,
close to the border of Kuwait. On October 8 President Clinton
responded by sending about 30,000 additional U.S. forces and
additional combat planes to join the forces already in the
Gulf area. He said the United States would honor its commitment
to defend Kuwait and enforce U.N. resolutions on Iraq. Congress
recessed on October 8 until November 29, 1994, so it did not
discuss the issue of congressional authorization. On October
28 President Clinton reported to Congress that by October 15
there were clear indications that Iraq had redeployed its forces
to their original location. On November 7 the Defense Department
announced 7,000 of the U.S. forces would be withdrawn before
Christmas.
Earlier, three continuing situations in Iraq since the end
of Desert Storm brought about the use of U.S. forces and thus
raised war powers issues. The first situation resulted from
the Iraqi government's repression of Kurdish and Shi'ite groups.
U.N. Security Council Resolution 688 of April 5, 1991, condemned
the repression of the Iraqi civilian population and appealed
for contributions to humanitarian relief efforts. The second
situation stemmed from the U.N. cease-fire resolution of April
3, 1991, Security Council Resolution 687, which called for
Iraq to accept the destruction or removal of chemical and biological
weapons and international control of its nuclear materials.
The third situation was related to both of the earlier ones.
On August 26, 1992, the United States, Britain, and France
began a "no-fly" zone, banning Iraqi fixed wing and helicopter
flights south of the 32nd parallel and creating a limited security
zone in the south, where Shi'ite groups are concentrated. After
violations of the no-fly zones and various other actions by
Iraq, on January 13, 1993, the outgoing Bush Administration
announced that aircraft from the United States and coalition
partners had attacked missile bases in southern Iraq and that
the United States was deploying a battalion task force to Kuwait
to underline the U.S. continuing commitment to Kuwait's independence.
On January 6, 1993, the United States gave Iraq an ultimatum
to remove newly deployed missiles in the no-fly zone. On January
19, 1993, President George H.W. Bush reported to Congress that
U.S. aircraft on December 27, 1992, had shot down an Iraqi
aircraft that had entered the no-fly zone and had undertaken
further military actions on January 13, 17, and 18.
President Clinton said on January 21, 1993, that the United
States would adhere to the policy toward Iraq set by the former
Bush Administration, and on January 22, 23, April 9 and 18,
June 19, and August 19, 1993, U.S. aircraft fired at targets
in Iraq after pilots sensed Iraqi radar or anti-aircraft fire
directed at them. A number of such incidents occurred while
planes patrolled the no-fly zone. On June 6, 1994, President
Clinton reported that over the previous 2 years, the northern
no-fly zone had deterred Iraq from a military offensive in
the northern zone. Iraqi forces had responded to the no-fly
zone in the south, he reported, by continuing to use land-based
artillery to shell marsh villages. In addition, Iraq was conducting
a large search and destroy operation and razing and burning
marsh villages, in violation of U.N. Security Council Resolution
688. Until Iraq fully complied with all relevant U.N. Security
Council resolutions, he reported, the United States would maintain
sanctions and other measures designed to achieve compliance.
A war powers issue has been whether the use of U.S. force
in Iraq in the period after the early 1991 Desert Storm conflict
has been authorized by Congress. P.L. 102-1 authorized the
President to use U.S. armed forces pursuant to U.N. Security
Council Resolution 678 to achieve implementation of previous
Security Council Resolutions; Security Council Resolution 687
was adopted after this. On August 2, 1991, the Senate adopted
an amendment to the Defense Authorization bill supporting the
use of all necessary means to achieve the goals of Resolution
687. Senator Dole said the amendment was not intended to authorize
the use of force by the President, and that in his view in
the current circumstances the President required no specific
authorization from Congress. As enacted, Section 1095 of P.L.
102-190 states the sense of Congress that it supports the use
of all necessary means to achieve the goals of Security Council
Resolution 687 as being consistent with the Authorization for
Use of Military Force Against Iraq Resolution. The bill also
included an amendment by Senator Pell supporting the use of
all necessary means to protect Iraq's Kurdish minority, consistent
with relevant U.N. resolutions and authorities contained in
P.L. 102-1 (Section 1096 of P.L. 102-190.)
In addition to these continuing situations, on June 28, 1993,
President Clinton reported to Congress that on June 26 U.S.
naval forces had launched a Tomahawk cruise missile strike
on the Iraqi Intelligence Service's main command and control
complex in Baghdad and that the military action was completed.
He said the Iraqi Intelligence Service had planned the failed
attempt to assassinate former President Bush during his visit
to Kuwait in April 1993. On September 5, 1996, President Clinton
reported to Congress on U.S. military actions in Iraq to obtain
compliance with U.N. Security Council Resolutions, especially
in light of attacks by Iraqi military forces against the Kurdish-controlled
city of Irbil. U.S. actions ordered by the President included:
extending the no-fly zone in southern Iraq from 32 to 33 degrees
north latitude, and conduction cruise missile attacks from
B-52H bombers and ships in the USS Carl Vinson Battle Group
against fixed, surface-to- air missile sites, command and control
centers, and air defense control facilities south of the 33rd
parallel in Iraq. Except for the report of June 28, 1993, Presidents
Bush and Clinton did not cite the War Powers Resolution in
the above reports. They submitted them "consistent with" P.L.
102-1, which requires the President to submit a report to the
Congress at least once every 60 days on the status of efforts
to obtain compliance by Iraq with the U.N. Security Council
resolution adopted in response to the Iraq aggression. Starting
in 1998 through the end of the Clinton Administration, Iraq's
refusal to permit U.N. weapons inspection teams to have access
to various Iraqi sites, and Iraqi threats to U.S. aircraft
policing the "no-fly zones" has resulted in U.S. military action
on numerous occasions against Iraqi military forces and targets
in the "no-fly zones." President Clinton chose to report these
actions under the requirements of P.L. 102-1, rather than the
War Powers Resolution. In early February 2001, President G.W.
Bush authorized U.S. aircraft, to attack Iraqi radar installations
in Southern Iraq believed to threaten allied forces enforcing
the "no-fly zone." Additional bombings of Iraqi sites were
authorized and took place from the summer of 2001 into March
2003. Such actions, when reported in the past, have been done
under P.L. 102-1. In a report to Congress on January 20, 2003,
pursuant to P. L. 107-243, President Bush stated that information
required to be reported regarding actions taken against Iraq
required by section 3 of P.L. 102-1 would in the future be
included in the reports required by P.L. 107-243. On March
19, 2003, President Bush directed U.S. Armed Forces to commence
combat operations against Iraq to enforce its disarmament.
Congressional authorization for such an action was provided
for in <>signed into law on October 16, 2002.
Since he announced the end of major combat operations against
Iraq on May 1, 2003, the President has made periodic reports
on the current situation in Iraq "consistent with" P. L. 107-243,
which have become the equivalent of reports to Congress envisioned
by the War Powers Resolution. (For further information, see
CRS Issue Brief IB92117, Iraqi Compliance with Cease-Fire
Agreements, and CRS Report RL31339, Iraq: U.S. Regime
Change Efforts and Post War Governance).
Haiti
On July 3, 1993, Haitian military leader Raoul Cedras and
deposed President Jean-Bertrand Aristide signed an agreement
at Governors Island providing for the restoration of President
Aristide on October 30. The United Nations and Organization
of American States took responsibility for verifying compliance.
Because the Haitian authorities did not comply with the agreement,
on October 13, 1993, the U.N. Security Council voted to restore
sanctions against Haiti. On October 20, President Clinton submitted
a report "consistent with the War Powers Resolution" that U.S.
ships had begun to enforce the U.N. embargo. Some Members of
Congress complained that Congress had not been consulted on
or authorized the action. On October 18, 1993, Senator Dole
said he would offer an amendment to the Defense Appropriations
bill (H.R. 3116) which would require congressional authorization
for all deployments into Haitian waters and airspace unless
the President made specified certifications. Congressional
leaders and Administration officials negotiated on the terms
of the amendment. As enacted, Section 8147 of P.L. 103-139
stated the sense that funds should not be obligated or expended
for U.S. military operations in Haiti unless the operations
were (1) authorized in advance by Congress, (2) necessary to
protect or evacuate U.S. citizens, (3) vital to the national
security and there was not sufficient time to receive congressional
authorization, or (4) the President submitted a report in advance
that the intended deployment met certain criteria.
On May 6, 1994, the U.N. Security Council adopted Resolution
917 calling for measures to tighten the embargo. On June 10,
1994, President Clinton announced steps being taken to intensify
the pressure on Haiti's military leaders that included assisting
the Dominican Republic to seal its border with Haiti, using
U.S. naval patrol boats to detain ships suspected of violating
the sanctions, a ban on commercial air traffic, and sanctions
on financial transactions. As conditions in Haiti worsened,
President Clinton stated he would not rule out the use of force,
and gradually the use of force appeared certain. Many Members
continued to contend congressional authorization was necessary
for any invasion of Haiti. On July 31, the U.N. Security Council
authorized a multinational force to use "all necessary means
to facilitate the departure from Haiti of the military leadership
... on the understanding that the cost of implementing this
temporary operation will be borne by the participating Member
States" (Resolution 940, 1994).
On August 3, the Senate adopted an amendment to the Department
of Veterans appropriation, H.R. 4624, by a vote of 100-0 expressing
its sense that the Security Council Resolution did not constitute
authorization for the deployment of U.S. forces in Haiti under
the Constitution or the War Powers Resolution, but the amendment
was not agreed to in conference. President Clinton said the
same day that he would welcome the support of Congress but
did not agree that he was constitutionally mandated to obtain
it. On September 15, 1994, in an address to the Nation, President
Clinton said he had called up the military reserve and ordered
two aircraft carriers into the region. His message to the military
dictators was to leave now or the United States would force
them from power. The first phase of military action would remove
the dictators from power and restore Haiti's democratically
elected government. The second phase would involve a much smaller
force joining with forces from other U.N. members which would
leave Haiti after 1995 elections were held and a new government
installed.
While the Defense Department continued to prepare for an invasion
within days, on September 16 President Clinton sent to Haiti
a negotiating team of former President Jimmy Carter, former
Joint Chiefs of Staff Chairman Colin Powell, and Senate Armed
Services Committee Chairman Sam Nunn. Again addressing the
Nation on September 18, President Clinton announced that the
military leaders had agreed to step down by October 15, and
agreed to the immediate introduction of troops from the 15,000
member international coalition beginning September 19. He said
the agreement was only possible because of the credible and
imminent threat of multinational force. He emphasized the mission
still had risks and there remained possibilities of violence
directed at U.S. troops, but the agreement minimized those
risks. He also said that under U.N. Security Council resolution
940, a 25-nation international coalition would soon go to Haiti
to begin the task of restoring democratic government. Also
on September 18, President Clinton reported to Congress on
the objectives in accordance with the sense expressed in Section
8147 (c) of P.L. 103-139, the FY1994 Defense Appropriations
Act.
U.S. forces entered Haiti on September 19, 1994. On September
21, President Clinton reported "consistent with the War Powers
Resolution" the deployment of 1,500 troops, to be increased
by several thousand. (At the peak in September there were about
21,000 U.S. forces in Haiti.) He said the U.S. presence would
not be open-ended but would be replaced after a period of months
by a U.N. peacekeeping force, although some U.S. forces would
participate in and be present for the duration of the U.N.
mission. The forces were involved in the first hostilities
on September 24 when U.S. Marines killed ten armed Haitian
resisters in a fire-fight.
On October 3, 1994, the House Foreign Affairs Committee reported
H.J.Res. 416 authorizing the forces in Haiti until March 1,
1995, and providing procedures for a joint resolution to withdraw
the forces. In House debate on October 6 the House voted against
the original contents and for the Dellums substitute. As passed,
H.J.Res. 416 stated the sense that the President should have
sought congressional approval before deploying U.S. forces
to Haiti, supporting a prompt and orderly withdrawal as soon
as possible, and requiring a monthly report on Haiti as well
as other reports. This same language was also adopted by the
Senate on October 6 as S.J.Res. 229, and on October 7 the House
passed S.J.Res. 229. President Clinton signed S.J.Res. 229
on October 25, 1994 (P.L. 103-423).
After the U.S. forces began to disarm Haitian military and
paramilitary forces and President Aristide returned on October
15, 1994, the United States began to withdraw some forces.
On March 31, 1995, U.N. peacekeeping forces assumed responsibility
for missions previously conducted by U.S. military forces in
Haiti. By September 21, 1995, President Clinton reported the
United States had 2,400 military personnel in Haiti as participants
in the U.N. Mission in Haiti (UNMIH), and 260 U.S. military
personnel assigned to the U.S. Support Group Haiti. On December
5, 1997, President Clinton stated that he intends to keep some
military personnel in Haiti, even though United Nations peacekeeping
forces were withdrawing. The Pentagon stated that U.S. military
personnel in Haiti would be about 500, consisting mainly of
engineering and medical units, with a combat element responsible
for protecting the U.S. contingent. On March 2, 2004, the President
reported to Congress "consistent with the War Powers Resolution" that,
on February 29, he had sent about "200 additional U.S. combat-equipped,
military personnel from the U.S. Joint Forces Command" to Port-au-Prince,
Haiti for a variety of purposes, including preparing the way
for a UN Multinational Interim Force, and otherwise supporting
UN Security Council Resolution 1529 (2004). For further information
on Haiti, see CRS Issue Brief IB96019, Haiti: Issues for
Congress).
Somalia
In Somalia, the participation of U.S. military forces in a
U.N. operation to protect humanitarian assistance, which began
in December 1992, became increasingly controversial as fighting
and casualties increased and objectives appeared to be expanding.
On October 7, 1993, President Clinton announced that all U.S.
forces would be withdrawn by March 31, 1994, and most forces
left by that date. The remaining 58 Marines, who had remained
to protect U.S. diplomats, were withdrawn September 15, 1994.
A major issue for Congress was whether to authorize U.S. action
in Somalia. On February 4, 1993, the Senate passed S.J.Res.
45 to authorize the President to use U.S. armed forces pursuant
to U.N. Security Council Resolution 794. S.J.Res. 45 stated
it is intended to constitute the specific statutory authorization
under Section 5(b) of the War Powers Resolution. On May 25,
1993, the House amended and passed S.J.Res. 45. The amendment
authorized U.S. forces to remain for one year. S.J.Res. 45
was then sent to the Senate for its concurrence, but the measure
did not reach the floor.
As sporadic fighting resulted in the deaths of Somali and
U.N. forces, including Americans, controversy over the operation
intensified. On September 9, 1993, the Senate adopted an amendment
to S. 1298, the Defense Authorization Bill, expressing the
sense of Congress that the President by November 15, 1993,
should seek and receive congressional authorization for the
continued deployment of U.S. forces to Somalia. It asked that
the President consult with Congress and report the goals, objectives,
and anticipated jurisdiction of the U.S. mission in Somalia
by October 15, 1993. On September 29, the House adopted a similar
amendment to its bill, H.R. 2401. On October 7, the President
consulted with congressional leaders from both parties for
over two hours on Somalia policy and also announced that U.S.
forces would be withdrawn by March 31, 1994.
On October 15, 1993, the Senate adopted an amendment by Senator
Byrd to H.R. 3116, the Defense Department Appropriations Act
for FY1994, cutting off funds for U.S. military operations
in Somalia after March 31, 1994, unless the President obtained
further spending authority from Congress. The Senate approved
the use of military operations only for the protection of American
military personnel and bases and for helping maintain the flow
of relief aid by giving the U.N. forces security and logistical
support. The amendment, which became Section 8151 of P.L. 103-139,
required U.S. forces in Somalia to remain under the command
and control of U.S. commanders. In addition, on November 9,
1993, the House adopted H.Con.Res. 170, using Section 5(c)
of the War Powers Resolution to direct the President to remove
forces from Somalia by March 31, 1994; sponsors stated it was
a non-binding measure, and the Senate did not act on the measure.
The Defense Appropriations Act for FY1995 (P.L. 103-335, signed
September 30, 1994) prohibited the use of funds for the continuous
presence of U.S. forces in Somalia, except for the protection
of U.S. personnel, after September 30, 1994.
On November 4, the U.N. Security Council decided to end the
U.N. mission in Somalia by March 31, 1995. On March 3, 1995,
U.S. forces completed their assistance to United Nations forces
evacuating Somalia.
Instances Formally Reported Under the War
Powers Resolution
Presidents have submitted 114 reports to Congress as a result
of the War Powers Resolution. Of these, President Ford submitted
4, President Carter one, President Reagan 14, President George
H.W. Bush 7, President Clinton 60, and President George W.
Bush 28. For a summary of the 111 reports submitted by the
Presidents from 1975-2003 see: CRS Report RL32267, The
War Powers Resolution: After Thirty Years. The following
is a summary of reports submitted by President Bush George
W. Bush since January 2004.
(112) On January 22, 2004, the President reported to Congress "consistent
with the War Powers Resolution" that the United States was
continuing to deploy combat equipped military personnel Bosnia
and Herzegovina in support of NATO's Stabilization Force (SFOR)
and its peacekeeping efforts in this country. About 1,800 U.S.
personnel are participating.
(113) On February 25, 2004, the President reported to Congress "consistent
with the War Powers Resolution" that, on February 23, he had
sent a combat-equipped "security force" of about "55 U.S. military
personnel from the U.S. Joint Forces Command" to Port-au-Prince,
Haiti to augment the U.S. Embassy security forces there and
to protect American citizens and property in light of the instability
created by the armed rebellion in Haiti.
(114) On March 2, 2004, the President reported to Congress "consistent
with the War Powers Resolution" that on February 29 he had
sent about "200 additional U.S. combat-equipped, military personnel
from the U.S. Joint Forces Command" to Port-au-Prince, Haiti
for a variety of purposes, including preparing the way for
a UN Multinational Interim Force, and otherwise supporting
UN Security Council Resolution 1529 (2004).
Consultation with Congress
Section 3 of the War Powers Resolution requires the President "in
every possible instance" to consult with Congress before introducing
U.S. armed forces into situations of hostilities and imminent
hostilities, and to continue consultations as long as the armed
forces remain. A review of instances involving the use of armed
forces since passage of the Resolution, listed above, indicates
there has been very little consultation with Congress under
the Resolution when consultation is defined to mean seeking
advice prior to a decision to introduce troops. Presidents
have met with congressional leaders after the decision to deploy
was made but before commencement of operations.
One problem is the interpretation of when consultation is
required. The War Powers Resolution established different criteria
for consultation than for reporting. Consultation is required
only before introducing armed forces into "hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances," the circumstances triggering
the time limit. A second problem is the meaning of the term
consultation. The executive branch has often taken the view
that the consultation requirement has been fulfilled when from
the viewpoint of some Members of Congress it has not. The House
report on the War Powers Resolution said, "... consultation
in this provision means that a decision is pending on a problem
and that Members of Congress are being asked by the President
for their advice and opinions and, in appropriate circumstances,
their approval of action contemplated." A third problem is
who represents Congress for consultation purposes. The House
version specifically called for consultation between the President
and the leadership and appropriate committees. This was changed
to less specific wording in conference, however, to provide
some flexibility. Some Members have introduced proposals to
specify a consultation group.
Issues for Congress
An immediate issue for Congress when the President introduces
troops into situations of potential hostilities is whether
to invoke Section 4(a)(1) of the War Powers Resolution and
trigger a durational limit for the action unless Congress authorizes
the forces to remain. If Congress concurs in a President's
action, application of the Resolution may be desirable either
to legitimize the action and strengthen it by making clear
congressional support for the measure or to establish the precedent
that the Resolution does apply in such a situation. On the
other hand, some may believe it is preferable to leave the
President more flexibility of action than is possible under
the Resolution. Or some may not wish to have a formal vote
on either the issue of applying the Resolution or the merits
of utilizing armed forces in that case. If Congress does not
concur in an action taken by a president, the Resolution offers
a way to terminate it.
A longer-term issue is whether the War Powers Resolution is
working or should be amended. Some contend that it has been
effective in moderating the President's response to crisis
situations because of his awareness that certain actions would
trigger its reporting and legislative veto provisions. Or they
suggest that it could be effective if the President would comply
fully or Congress would invoke its provisions. Others believe
it is not accomplishing its objectives and suggest various
changes. Some have proposed that the Resolution return to the
original Senate-passed version, which would enumerate circumstances
in which the President needed no congressional authorization
for use of armed forces (namely to respond to or forestall
an armed attack against the United States or its forces or
to protect U.S. citizens while evacuating them) but prohibit
any other use or any permissible use for more than 30 days
unless authorized by Congress. Others would replace the automatic
requirement for withdrawal of troops after 60 days with expedited
procedures for a joint resolution authorizing the action or
requiring disengagement. Still others would repeal the Resolution
on grounds that it restricts the President's effectiveness
in foreign policy or is unconstitutional.
Several Members have suggested establishing a consultative
group to meet with the President when military action is being
considered. Senators Byrd, Nunn, Warner, and Mitchell introduced
S.J.Res. 323 in 1988 and S. 2 in 1989 to establish a permanent
consultation group of 18 Members consisting of the leadership
and the ranking and minority members of the Committees on Foreign
Relations, Armed Services, and Intelligence. The bill would
permit an initial consultative process to be limited to a core
group of 6 Members -- the majority and minority leaders of
both chambers plus the Speaker of the House and President pro
tempore of the Senate. On October 28, 1993, House Foreign Affairs
Chairman Lee Hamilton introduced H.R. 3405 to establish a congressional
consultative group equivalent to the National Security Council.
Thus far, however, executive branch officials and congressional
leaders, who themselves have varying opinions, have been unable
to find mutually acceptable changes in the War Powers Resolution.
President Clinton, in Presidential Decision Directive 25 signed
May 3, 1994, supported legislation to amend the Resolution
along the lines of the Mitchell, Nunn, Byrd, and Warner proposal
of 1989, to establish a consultative mechanism and also eliminate
the 60-day withdrawal provisions. Although many agreed on the
consultation group, supporters of the legislation contended
the time limit had been the main flaw in the War Powers Resolution,
whereas opponents contended the time limit provided the teeth
of the Resolution. The difficulty of reaching consensus in
Congress on what action to take is reflected in the fact that
in the 104th Congress, only one measure, S. 5, introduced January
4, 1995, by then Majority Leader Dole was subject of a hearing.
S. 5, if enacted, would have repealed most of the existing
War Powers Resolution. An effort to repeal most of the War
Powers Resolution in the House on June 7, 1995, through an
amendment to the Foreign Assistance and State Department Authorization
Act for FY1996-97 (H.R. 1561) by Representative Hyde, failed
(201-217). Other than these instances, no other War Powers
related legislation was even considered during the 104th Congress.
On March 18, 1998, the House defeated H.Con.Res. 227, a resolution
that would have directed the President, pursuant to section
5(c) of the War Powers Resolution to remove United States Armed
Forces from the Republic of Bosnia and Herzegovina (H.Rept.
105-442). It was the hope of Representative Tom Campbell, its
sponsor, that passage of the resolution could lead to a court
case that would address the constitutionality of the War Powers
Resolution. On March 31, 1998, the House passed a Supplemental
Appropriations bill (H.R. 3579) that would ban use of funds
appropriated in it for conduct of offensive operations against
Iraq, unless such operations were specifically authorized by
law. This provision was dropped in the conference with the
Senate. On June 24, 1998, the House passed H.R. 4103, the Defense
Department Appropriations bill for FY1999, with a provision
by Representative Skaggs that banned the use of funds appropriated
or otherwise made available by this Act "to initiate or conduct
offensive military operations by United States Armed Forces
except in accordance with the war powers clause of the Constitution
(Article 1, Section 8), which vests in Congress the power to
declare and authorize war and to take certain specified, related
actions." The Skaggs provision was stricken by the House-Senate
conference committee on H.R. 4103. No further War Powers-related
actions were taken by Congress by the adjournment of the 105th
Congress.
During the 106th Congress, efforts were made to force the
President to seek congressional authority for military operations
in Kosovo, leading to votes in the House and Senate on that
issue. Subsequently, Representative Tom Campbell and others
sued the President in Federal Court in an effort to clarify
congressional-Executive authority in this area. A Federal District
Court and an Appeals Court refused to decide the case on the
merits, instead holding that the plaintiffs lacked standing
to sue. On October 2, 2000, the United States Supreme Court,
let stand the holding of the U.S. Appeals Court (see discussion
above under Kosovo).
During the 1st session of the 107th Congress, the Congress
passed S.J.Res. 23, on September 14, 2001, in the wake of the
terrorist attacks against the World Trade Center in New York
City, and the Pentagon building in Arlington, Virginia. This
legislation, titled the "Authorization for Use of Military
Force," passed the Senate by a vote of 98-0; the House of Representatives
passed it by a vote of 420-1. This joint resolution authorizes
the President "to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations
or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations
or persons." Congress further declared in the joint resolution
that "Consistent with section 8(a)(1) of the War Powers resolution," the
above language is "intended to constitute specific statutory
authorization within the meaning of section 5(b) the War Powers
Resolution." S.J.Res. 23 further stated that "Nothing in this
resolution supersedes any requirement of the War Powers Resolution." President
George W. Bush signed S.J.Res. 23 into law on September 18,
2001 (P.L. 107-40, 115 Stat. 224).
During the 2nd session of the 107th Congress, the Congress
passed H.J.Res. 114, the Authorization for the Use of Force
Against Iraq Resolution of 2002 (P.L. 107-243 ). On October
16, 2002, President Bush signed this legislation into law.
This statute authorizes the President to use the armed forces
of the United States
as he determines to be necessary
and appropriate in order to (1) defend the national security
of the United States against the continuing threat posed
by Iraq; and (2) enforce all relevant United Nations Security
Council resolutions regarding Iraq.
Prior to using force under this statute the President is required
to communicate to Congress his determination that the use of
diplomatic and other peaceful means will not "adequately protect
the United States ... or ... lead to enforcement of all relevant
United Nations Security Council resolutions" and that the use
of force is "consistent" with the battle against terrorism.
The statute also stipulates that it is "intended to constitute
specific statutory authorization within the meaning of section
5(b) of the War Powers Resolution." It further requires the
President to make periodic reports to Congress "on matters
relevant to this joint resolution." Finally, the statute expresses
Congress' "support" for the efforts of the President to obtain "prompt
and decisive action by the Security Council" to enforce Iraq's
compliance with all relevant Security Council resolutions.
P.L. 107-243 clearly confers broad authority on the President
to use force. The authority granted is not limited to
the implementation of previously adopted Security
Council resolutions concerning Iraq but includes "all relevant
... resolutions." Thus, it appears to incorporate resolutions
concerning Iraq that may by adopted by the Security Council
in the future as well as those already adopted. The authority
also appears to extend beyond compelling Iraq's disarmament
to implementing the full range of concerns expressed in those
resolutions. The President's exercise of the authority granted
is not dependent upon a finding that Iraq
was complicit in the attacks of September 11, 2001. Moreover,
the authority conferred can be used for the purpose of defending "the
national security of the United States against the continuing
threat posed by Iraq. On March 19, 2003, President Bush used
the authority granted in P.L. 107-243 by launching a military
attack against Iraq.
