RL32267 -- The War Powers Resolution: After Thirty Years
March 11, 2004
Richard F. Grimmett
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
CONTENTS
Summary
This report discusses and assesses the War Powers Resolution,
its application since enactment in 1973, providing detailed background
on a variety of cases where it was utilized, or issues of its
applicability were raised. It will be revised biannually.
In the post-Cold War world, Presidents have continued to commit
U.S. Armed Forces into potential hostilities, sometimes without
a specific authorization from Congress. Thus the War Powers Resolution
and its purposes continues to be a potential subject of controversy.
On June 7, 1995 the House defeated, by a vote of 217-201, an
amendment to repeal the central features of the War Powers Resolution
that have been deemed unconstitutional by every President since
the law's enactment in 1973. In 1999, after the President committed
U.S. military forces to action in Yugoslavia without congressional
authorization, Rep. Tom Campbell used expedited procedures under
the Resolution to force a debate and votes on U.S. military action
in Yugoslavia, and later sought, unsuccessfully, through a federal
court suit to enforce Presidential compliance with the terms
of the War Powers Resolution.
The War Powers Resolution (P.L. 93-148) was passed over the
veto of President Nixon on November 7, 1973, to provide procedures
for Congress and the President to participate in decisions to
send U.S. Armed Forces into hostilities. Section 4(a)(1) requires
the President to report to Congress any introduction of U.S.
forces into hostilities or imminent hostilities. When such a
report is submitted, or is required to be submitted, section
5(b) requires that the use of forces must be terminated within
60 to 90 days unless Congress authorizes such use or extends
the time period. Section 3 requires that the "President in every
possible instance shall consult with Congress before introducing" U.S.
Armed Forces into hostilities or imminent hostilities.
From 1975 through 2003, Presidents have submitted 111 reports
as the result of the War Powers Resolution, but only one, the
1975 Mayaguez seizure, cited section 4(a)(1) which triggers
the time limit, and in this case the military action was completed
and U.S. armed forces had disengaged from the area of conflict
when the report was made. The reports submitted by the President
since enactment of the War Powers Resolution cover a range of
military activities from embassy evacuations to full scale combat
military operations, such as the Persian Gulf conflict, and the
2003 war with Iraq, the intervention in Kosovo and the anti-terrorism
actions in Afghanistan. In some instances U.S. Armed Forces have
been used in hostile situations without formal reports to Congress
under the War Powers Resolution. On one occasion, Congress exercised
its authority to determine that the requirements of section 4(a)(1)
became operative on August 29, 1983, through passage of the Multinational
Force in Lebanon Resolution (P.L. 98-119). In 1991 and 2002,
Congress authorized, by law, the use of military force against
Iraq. In several instances neither the President, Congress, nor
the courts have been willing to trigger the War Powers Resolution
mechanism.
Introduction
Under the Constitution, the war powers are divided between Congress
and the President. Among other relevant grants, 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 utilize the armed
forces to repel attacks against the United States, but there
has long been controversy over whether he is constitutionally
authorized to send forces into hostile situations abroad without
a declaration of war or other congressional authorization.
Congressional concern about Presidential use of armed forces
without congressional authorization intensified after the Korean
conflict. During the Vietnam war, Congress searched for a way
to assert authority to decide when the United States should become
involved in a war or the armed forces be utilized in circumstances
that might lead to hostilities. On November 7, 1973, it passed
the War Powers Resolution (P.L. 93-148) over the veto of President
Nixon. The main purpose of the Resolution was to establish procedures
for both branches to share in decisions that might get the United
States involved in war. The drafters sought to circumscribe the
President's authority to use armed forces abroad in hostilities
or potential hostilities without a declaration of war or other
congressional authorization, yet provide enough flexibility to
permit him to respond to attack or other emergencies.
The record of the War Powers Resolution since its enactment
has been mixed, and after 30 years it remains controversial.
Some Members of Congress believe the Resolution has on some occasions
served as a restraint on the use of armed forces by Presidents,
provided a mode of communication, and given Congress a vehicle
for asserting its war powers. Others have sought to amend the
Resolution because they believe it has failed to assure a congressional
voice in committing U.S. troops to potential conflicts abroad.
Others in Congress, along with executive branch officials, contend
that the President needs more flexibility in the conduct of foreign
policy and that the time limitation in the War Powers Resolution
is unconstitutional and impractical. Some have argued for its
repeal.
This report examines the provisions of the War Powers Resolution,
actual experience in its use from its enactment in 1973 through
October 2001, and proposed amendments to it. Appendix 1 lists
instances which Presidents have reported to Congress under the
War Powers Resolution, and Appendix 2 lists representative instances
of the use of U.S. armed forces that were not reported.
Provisions of the War Powers Resolution (P.L.
93-148)
Title
Section 1 establishes the title, "The War Powers Resolution." The
law is frequently referred to as the "War Powers Act," the title
of the measure passed by the Senate. Although the latter is not
technically correct, it does serve to emphasize that the War
Powers Resolution, embodied in a joint resolution which complies
with constitutional requirements for lawmaking, is a law.
Purpose and Policy
Section 2 states the Resolution's purpose and policy, with Section
2(a) citing as the primary purpose to "insure that the collective
judgment of both the Congress and the President will apply to
the introduction of United States Armed Forces into hostilities,
or into situations where imminent involvement in hostilities
is clearly indicated by the circumstances, and to the continued
use of such forces in hostilities or in such situations."
Section 2(b) points to the Necessary and Proper Clause of the
Constitution as the basis for legislation on the war powers.
It provides that "Under Article I, section 8, of the Constitution
it is specifically provided that Congress shall have the power
to make all laws necessary and proper for carrying into execution,
not only its own powers but also all other powers vested by the
Constitution in the Government of the United States...."
Section 2(c) states the policy that the powers of the President
as Commander in Chief to introduce U.S. armed forces into situations
of 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 attack upon the United States,
its territories or possessions, or its armed forces."
Consultation Requirement
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 in such situations. The House report elaborated:
A considerable amount of attention was given to the definition
of consultation. Rejected was the notion that
consultation should be synonymous with merely being informed. Rather,
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. Furthermore, for consultation
to be meaningful, the President himself must participate and all
information relevant to the situation must be made available. (1)
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, in order to provide more flexibility.
Reporting Requirements
Section 4 requires the President to report to Congress whenever he introduces
U.S. armed forces abroad in certain situations. Of key importance is section
4(a)(1) because it triggers the time limit in section 5(b). Section 4(a)(1)
requires reporting within 48 hours, in the absence of a declaration of
war or congressional authorization, the introduction of U.S. armed forces "into
hostilities or into situations where imminent involvement in hostilities
is clearly indicated by the circumstances."
Some indication of the meaning of hostilities and imminent hostilities
is given in the House report on its War Powers bill:
The word hostilities was substituted for the phrase armed
conflict during the subcommittee drafting process because it was
considered to be somewhat broader in scope. In addition to a situation in
which fighting actually has begun, hostilities also encompasses
a state of confrontation in which no shots have been fired but where there
is a clear and present danger of armed conflict. "Imminent hostilities" denotes
a situation in which there is a clear potential either for such a state of
confrontation or for actual armed conflict. (2)
Section 4(a)(2) requires the reporting of the introduction of troops "into
the territory, airspace or waters of a foreign nation, while equipped for
combat, except for deployments which relate solely to supply, replacement,
repair, or training of such forces." According to the House report this
was to cover
the initial commitment of troops in situations in which there is no actual
fighting but some risk, however small, of the forces being involved in hostilities.
A report would be required any time combat military forces were sent to another
nation to alter or preserve the existing political status quo or to make
the U.S. presence felt. Thus, for example, the dispatch of Marines to Thailand
in 1962 and the quarantine of Cuba in the same year would have required Presidential
reports. Reports would not be required for routine port supply calls, emergency
aid measures, normal training exercises, and other noncombat military activities. (3)
Section 4(a)(3) requires the reporting of the introduction of troops "in
numbers which substantially enlarge United States Armed Forces equipped
for combat already located in a foreign nation." The House report elaborated:
While the word "substantially" designates
a flexible criterion, it is possible to arrive at a common-sense understanding
of the numbers involved. A 100% increase in numbers of Marine guards
at an embassy -- say from 5 to 10 -- clearly would not be an occasion
for a report. A thousand additional men sent to Europe under present
circumstances does not significantly enlarge the total U.S. troop strength
of about 300,000 already there. However, the dispatch of 1,000 men to
Guantanamo Bay, Cuba, which now has a complement of 4,000 would mean
an increase of 25%, which is substantial. Under this circumstance, President
Kennedy would have been required to report to Congress in 1962 when he
raised the number of U.S. military advisers in Vietnam from 700 to 16,000. (4)
All of the reports under Section 4(a), which are to be submitted to the
Speaker of the House and the President pro tempore of the Senate, are to
set forth:
(A) the circumstances necessitating the introduction of United States
Armed Forces;
(B) the constitutional and legislative authority under which such introduction
took place; and
(C) the estimated scope and duration of the hostilities or involvement.
Section 4(b) requires the President to furnish such other information
as Congress may request to fulfill its responsibilities relating to committing
the nation to war.
Section 4(c) requires the President to report to Congress periodically,
and at least every six months, whenever U.S. forces are introduced into
hostilities or any other situation in section 4(a).
The objectives of these provisions, the conference report stated, was
to "ensure that the Congress by right and as a matter of law will be provided
with all the information it requires to carry out its constitutional responsibilities
with respect to committing the Nation to war and to the use of United States
Armed Forces abroad." (5)
Congressional Action
Section 5(a) deals with congressional procedures for receipt of a report
under section 4(a)(1). It provides that if a report is transmitted during
a congressional adjournment, the Speaker of the House and the President
pro tempore of the Senate, when they deem it advisable or if petitioned
by at least 30% of the Members of their respective Houses, shall jointly
request the President to convene Congress in order to consider the report
and take appropriate action.
Section 5(b) was intended to provide teeth for the War Powers Resolution.
After a report "is submitted or is required to be submitted pursuant to
section 4(a)(1), whichever is earlier", section 5(b) requires the President
to terminate the use of U.S. Armed Forces after 60 days unless Congress
(1) has declared war or authorized the action; (2) has extended the period
by law; or (3) is physically unable to meet as a result of an armed attack
on the United States. The 60 days can be extended for 30 days by the President
if he certifies that "unavoidable military necessity respecting the safety
of United States Armed Forces" requires their continued use in the course
of bringing about their removal.
Section 5(c) requires the President to remove the forces at any time if
Congress so directs by concurrent resolution; the effectiveness of this
subsection is uncertain because of the 1983 Supreme Court decision on the
legislative veto. It is discussed in Part II of this report.
Priority Procedures
Section 6 establishes expedited procedures for congressional consideration
of a joint resolution or bill introduced to authorize the use of armed
forces under section 5 (b). They provide for:
(a) A referral to the House Foreign Affairs [International Relations]
or Senate Foreign Relations Committee, the committee to report one measure
not later than 24 calendar days before the expiration of the 60 day period,
unless the relevant House determines otherwise by a vote;
(b) The reported measure to become the pending business of the relevant
House and be voted on within three calendar days, unless that House determines
otherwise by vote; in the Senate the debate is to be equally divided between
proponents and opponents;
(c) A measure passed by one House to be referred to the relevant committee
of the other House and reported out not later than 14 calendar days before
the expiration of the 60 day period, the reported bill to become the pending
business of that House and be voted on within 3 calendar days unless determined
otherwise by a vote;
(d) Conferees to file a report not later than four calendar days before
the expiration of the 60 day period. If they cannot agree within 48 hours,
the conferees are to report back in disagreement, and such report is to
be acted on by both Houses not later than the expiration of the 60 day
period.
Section 7 establishes similar priority procedures for a concurrent resolution
to withdraw forces under section 5(c). For a recent use of these procedures
see the section on the legislative veto, below.
Interpretive Provisions
Section 8 sets forth certain interpretations relating to the Resolution.
Section 8(a) states that authority to introduce armed forces is not to
be inferred from any provision of law or treaty unless it specifically
authorizes the introduction of armed forces into hostilities or potential
hostilities and states that it is "intended to constitute specific statutory
authorization within the meaning of this joint resolution." This language
was derived from a Senate measure and was intended to prevent a security
treaty or military appropriations act from being used to authorize the
introduction of troops. It was also aimed against using a broad resolution
like the Tonkin Gulf Resolution (6) to justify hostilities
abroad. This resolution had stated that the United States was prepared
to take all necessary steps, including use of armed force, to assist certain
nations, and it was cited by Presidents and many Members as congressional
authorization for the Vietnam war.
Section 8(b) states that further specific statutory authorization is not
required
to permit members of United States Armed Forces to participate jointly with
members of the armed forces of one or more foreign countries in the headquarters
operations of high-level military commands which were established prior to
the date of enactment of this joint resolution and pursuant to the United
Nations Charter or any treaty ratified by the United States prior to such
date.
This section was added by the Senate to make clear that the resolution
did not prevent U.S. forces from participating in certain joint military
exercises with allied or friendly organizations or countries. The conference
report stated that the "high-level" military commands meant the North Atlantic
Treaty Organization, (NATO), the North American Air Defense Command (NORAD)
and the United Nations command in Korea.
Section 8(c) defines the introduction of armed forces to include the assignment
of armed forces to accompany regular or irregular military forces of other
countries when engaged, or potentially engaged, in hostilities. The conference
report on the War Powers Resolution explained that this was language modified
from a Senate provision requiring specific statutory authorization for
assigning members of the Armed Forces for such purposes. The report of
the Senate Foreign Relations Committee on its bill said:
The purpose of this provision is to prevent
secret, unauthorized military support activities and to prevent a repetition
of many of the most controversial and regrettable actions in Indochina.
The ever deepening ground combat involvement of the United States in
South Vietnam began with the assignment of U.S. "advisers" to accompany
South Vietnamese units on combat patrols; and in Laos, secretly and without
congressional authorization, U.S. "advisers" were deeply engaged in the
war in northern Laos. (7)
Section 8(d) states that nothing in the Resolution is intended to alter
the constitutional authority of either the Congress or the President. It
also specifies that nothing is to be construed as granting any authority
to introduce troops that would not exist in the absence of the Resolution.
The House report said that this provision was to help insure the constitutionality
of the Resolution by making it clear that nothing in it could be interpreted
as changing the powers delegated by the Constitution.
Section 9 is a separability clause, stating that if any provision or its
application is found invalid, the remainder of the Resolution is not to
be affected.
Constitutional Questions Raised
From its inception, the War Powers Resolution was controversial because
it operated on the national war powers, powers divided by the Constitution
in no definitive fashion between the President and Congress. Congress adopted
the resolution in response to the perception that Presidents had assumed
more authority to send forces into hostilities than the framers of the
Constitution had intended for the Commander-in-Chief. President Nixon in
his veto message challenged the constitutionality of the essence of the
War Powers Resolution, and particularly two provisions. (8) He argued that
the legislative veto provision, permitting Congress to direct the withdrawal
of troops by concurrent resolution, was unconstitutional. He also argued
that the provision requiring withdrawal of troops after 60-90 days unless
Congress passed legislation authorizing such use was unconstitutional because
it checked Presidential powers without affirmative congressional action.
Every President since the enactment of the War Powers Resolution has taken
the position that it is an unconstitutional infringement on the President's
authority as Commander-in-Chief.
War Powers of President and Congress
The heart of the challenge to the constitutionality of the War Powers
Resolution rests on differing interpretations by the two branches of the
respective war powers of the President and Congress. These differing interpretations,
especially the assertions of Presidential authority to send forces into
hostile situations without a declaration of war or other authorization
by Congress, were the reason for the enactment of the Resolution.
The congressional view was that the framers of the Constitution gave Congress
the power to declare war, meaning the ultimate decision whether or not
to enter a war. Most Members of Congress agreed that the President as Commander
in Chief had power to lead the U.S. forces once the decision to wage war
had been made, to defend the nation against an attack, and perhaps in some
instances to take other action such as rescuing American citizens. But,
in this view, he did not have the power to commit armed forces to war.
By the early 1970s, the congressional majority view was that the constitutional
balance of war powers had swung too far toward the President and needed
to be corrected. Opponents argued that Congress always held the power to
forbid or terminate U.S. military action by statute or refusal of appropriations,
and that without the clear will to act the War Powers Resolution would
be ineffective.
In his veto message, President Nixon said the Resolution would impose
restrictions upon the authority of the President which would be dangerous
to the safety of the Nation and "attempt to take away, by a mere legislative
act, authorities which the President has properly exercised under the Constitution
for almost 200 years."
The War Powers Resolution in section 2(c) recognized the constitutional
powers of the President as Commander-in-Chief to introduce forces into
hostilities or imminent hostilities as "exercised only pursuant to (1)
a declaration of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its territories or
possessions, or its armed forces." The executive branch has contended that
the President has much broader authority to use forces, including for such
purposes as to rescue American citizens abroad, rescue foreign nationals
where such action facilitates the rescue of U.S. citizens, protect U.S.
Embassies and legations, suppress civil insurrection, implement the terms
of an armistice or cease-fire involving the United States, and carry out
the terms of security commitments contained in treaties. (9)
Legislative Veto
On June 23, 1983, the Supreme Court in INS v. Chadha,
ruled unconstitutional the legislative veto provision in section 244(c)(2)
of the Immigration and Nationality Act. (10) Although the
case involved the use of a one-House legislative veto, the decision cast
doubt on the validity of any legislative veto device that was not presented
to the President for signature. The Court held that to accomplish what
the House attempted to do in the Chadha case "requires action
in conformity with the express procedures of the Constitution's prescription
for legislative action: passage by a majority of both Houses and presentment
to the President." On July 6, 1983, the Supreme Court affirmed a lower
court's decision striking down a provision in another law (11) that permitted
Congress to disapprove by concurrent (two-House) resolution. (12)
Since section 5(c) requires forces to be removed by the President if Congress
so directs by a concurrent resolution, it is constitutionally suspect under
the reasoning applied by the Court. (13) A concurrent
resolution is adopted by both chambers, but it does not require presentment
to the President for signature or veto. Some legal analysts contend, nevertheless,
that the War Powers Resolution is in a unique category which differs from
statutes containing a legislative veto over delegated authorities. (14) Perhaps more
important, some observers contend, if a majority of both Houses ever voted
to withdraw U.S. forces, the President would be unlikely to continue the
action for long, and Congress could withhold appropriations to finance
further action. Because the War Powers Resolution contains a separability
clause in section 9, most analysts take the view that the remainder of
the joint resolution would not be affected even if section 5(c) were found
unconstitutional. (15)
Congress has taken action to fill the gap left by the possible invalidity
of the concurrent resolution mechanism for the withdrawal of troops. On
October 20, 1983, the Senate voted to amend the War Powers Resolution by
substituting a joint resolution, which requires presentment to the President,
for the concurrent resolution in section 5(c), and providing that it would
be handled under the expedited procedures in section 7. The House and Senate
conferees agreed not to amend the War Powers Resolution itself, but to
adopt a free standing measure relating to the withdrawal of troops. The
measure, which became law, provided that any joint resolution or bill to
require the removal of U.S. armed forces engaged in hostilities outside
the United States without a declaration of war or specific statutory authorization
would be considered in accordance with the expedited procedures of section
601(b) of the International Security and Arms Export Control Act of 1976, (16) except
that it would be amendable and debate on a veto limited to 20 hours. (17) The priority
procedures embraced by this provision applied in the Senate only. Handling
of such a joint resolution by the House was left to that Chamber's discretion.
House Members attempted to use section 5(c) to obtain a withdrawal of
forces from Somalia. On October 22, 1993, Representative Benjamin Gilman
introduced H.Con.Res. 170, pursuant to section 5(c) of the War Powers Resolution,
directing the President to remove U.S. Armed Forces from Somalia by January
31, 1994. Using the expedited procedures called for in section 5(c), the
Foreign Affairs Committee amended the date of withdrawal to March 31, 1994,
(the date the President had already agreed to withdraw the forces), and
the House adopted H.Con.Res. 170. The Foreign Affairs Committee reported: (18)
Despite such genuine constitutionality questions,
the committee acted in accordance with the expedited procedures in section
7. The committee action was premised on a determination that neither
individual Members of Congress nor Committees of Congress should make
unilateral judgments about the constitutionality of provisions of law.
Despite the use of the phrase "directs the President", the sponsor of
the resolution and Speaker of the House Thomas Foley expressed the view
that because of the Chadha decision, the resolution would be non-binding.
The March 31, 1994, withdrawal date was later enacted as section 8151 of
P.L. 103-139, signed November 11, 1993.
Automatic Withdrawal Provision
The automatic withdrawal provision has become perhaps the most controversial
provision of the War Powers Resolution. Section 5(b) requires the President
to withdraw U.S. forces from hostilities within 60-90 days after a report
is submitted or required to be submitted under section 4(a)(1). The triggering
of the time limit has been a major factor in the reluctance of Presidents
to report, or Congress to insist upon a report, under section 4(a)(1).
Drafters of the War Powers Resolution included a time limit to provide
some teeth for Congress, in the event a President assumed a power to act
from provisions of resolutions, treaties, or the Constitution which did
not constitute an explicit authorization. The Senate report called the
time limit "the heart and core" of the bill that "represents, in an historic
sense, a restoration of the constitutional balance which has been distorted
by practice in our history and, climatically, in recent decades." (19) The House report
emphasized that the Resolution did not grant the President any new authority
or any freedom of action during the time limits that he did not already
have.
Administration officials have objected that the provision would require
the withdrawal of U.S. forces simply because of congressional inaction
during an arbitrary period. Since the resolution recognizes that the President
has independent authority to use armed forces in certain circumstances,
they state, "on what basis can Congress seek to terminate such independent
authority by the mere passage of time?" (20) In addition,
they argue, the imposition of a deadline interferes with successful action,
signals a divided nation and lack of resolve, gives the enemy a basis for
hoping that the President will be forced by domestic opponents to stop
an action, and increases risk to U.S. forces in the field. The issue has
not been dealt with by the courts.
Major Cases and Issues Prior to the Persian Gulf War
Perceptions of the War Powers Resolution tended to be set during the Cold
War. During the 1970s the issues revolved largely around the adequacy of
consultation. The 1980s raised more serious issues of Presidential compliance
and congressional willingness to use the War Powers Resolution to restrain
Presidential action. With regard to Lebanon in 1983, Congress itself invoked
the War Powers Resolution, but in the 1987-1988 Persian Gulf tanker war
Congress chose not to do so. Following is a summary of major U.S. military
actions and the issues they raised relating to the War Powers Resolution
from its enactment in 1973 to August 1990. (21)
Vietnam Evacuations and Mayaguez: What Is Consultation?
As the Vietnam war ended, on three occasions, in April 1975, President
Ford used U.S. forces to help evacuate American citizens and foreign nationals.
In addition, in May 1975 President Ford ordered the retaking of a U.S.
merchant vessel, the SS Mayaguez which had been seized by Cambodian
naval patrol vessels. All four actions were reported to Congress citing
the War Powers Resolution. The report on the Mayaguez recapture was the
only War Powers report to date to specifically cite section 4(a)(1), but
the question of the time limit was moot because the action was over by
the time the report was filed.
Among the problems revealed by these first four cases were differences
of opinion between the two branches on the meaning of consultation. The
Ford Administration held that it had met the consultation requirement because
the President had directed that congressional leaders be notified prior
to the actual commencement of the introduction of armed forces. The prevailing
congressional view was that consultation meant that the President seek
congressional opinion, and take it into account, prior to making a decision
to commit armed forces. (22)
Iran Hostage Rescue Attempt: Is Consultation Always
Necessary and Possible?
After an unsuccessful attempt on April 24, 1980, to rescue American hostages
being held in Iran, President Carter submitted a report to Congress to
meet the requirements of the War Powers Resolution, but he did not consult
in advance. The Administration took the position that consultation was
not required because the mission was a rescue attempt, not an act of force
or aggression against Iran. In addition, the Administration contended that
consultation was not possible or required because the mission depended
upon total surprise.
Some Members of Congress complained about the lack of consultation, especially
because legislative-executive meetings had been going on since the Iranian
crisis had begun the previous year. Just before the rescue attempt, the
Senate Foreign Relations Committee had sent a letter to Secretary of State
Cyrus Vance requesting formal consultations under the War Powers Resolution.
Moreover, shortly before the rescue attempt, the President outlined plans
for a rescue attempt to Senate Majority Leader Robert Byrd but did not
say it had begun. Senate Foreign Relations Committee Chairman Frank Church
stressed as guidelines for the future: (1) consultation required giving
Congress an opportunity to participate in the decision making process,
not just informing Congress that an operation was underway; and (2) the
judgment could not be made unilaterally but should be made by the President
and Congress. (23)
El Salvador: When Are Military Advisers in Imminent
Hostilities?
One of the first cases to generate substantial controversy because it
was never reported under the War Powers Resolution was the dispatch of
U.S. military advisers to El Salvador. At the end of February 1981, the
Department of State announced the dispatch of 20 additional military advisers
to El Salvador to aid its government against guerilla warfare. There were
already 19 military advisers in El Salvador sent by the Carter Administration.
The Reagan Administration said the insurgents were organized and armed
by Soviet bloc countries, particularly Cuba. By March 14, the Administration
had authorized a total of 54 advisers, including experts in combat training.
The President did not report the situation under the War Powers Resolution.
A State Department memorandum said a report was not required because the
U.S. personnel were not being introduced into hostilities or situations
of imminent hostilities. The memorandum asserted that if a change in circumstances
occurred that raised the prospect of imminent hostilities, the Resolution
would be complied with. A justification for not reporting under section
4(a)(2) was that the military personnel being introduced were not equipped
for combat. (24) They would,
it was maintained, carry only personal sidearms which they were authorized
to use only in their own defense or the defense of other Americans.
The State Department held that section 8(c) of the War Powers Resolution
was not intended to require a report when U.S. military personnel might
be involved in training foreign military personnel, if there were no imminent
involvement of U.S. personnel in hostilities. In the case of El Salvador,
the memorandum said, U.S. military personnel "will not act as combat advisors,
and will not accompany Salvadoran forces in combat, on operational patrols,
or in any other situation where combat is likely."
On May 1, 1981, eleven Members of Congress challenged the President's
action by filing suit on grounds that he had violated the Constitution
and the War Powers Resolution by sending the advisers to El Salvador. Eventually
there were 29 co-plaintiffs, but by June 18, 1981, an equal number of Members
(13 Senators and 16 Representatives) filed a motion to intervene in the
suit, contending that a number of legislative measures were then pending
before Congress and that Congress had ample opportunity to vote to end
military assistance to El Salvador if it wished.
On October 4, 1982, U.S. District Court Judge Joyce Hens Green dismissed
the suit. She ruled that Congress, not the court, must resolve the question
of whether the U.S. forces in El Salvador were involved in a hostile or
potentially hostile situation. While there might be situations in which
a court could conclude that U.S. forces were involved in hostilities, she
ruled, the "subtleties of fact-finding in this situation should be left
to the political branches." She noted that Congress had taken no action
to show it believed the President's decision was subject to the War Powers
Resolution. (25) On
November 18, 1983, a Federal circuit court affirmed the dismissal and on
June 8, 1984, the Supreme Court declined consideration of an appeal of
that decision. (26)
As the involvement continued and casualties occurred among the U.S. military
advisers, various legislative proposals relating to the War Powers Resolution
and El Salvador were introduced. Some proposals required a specific authorization
prior to the introduction of U.S. forces into hostilities or combat in
El Salvador. (27) Other proposals
declared that the commitment of U.S. Armed Forces in El Salvador necessitated
compliance with section 4(a) of the War Powers Resolution, requiring the
President to submit a report. (28)
Neither approach was adopted in legislation, but the Senate Foreign Relations
Committee reported that the President had "a clear obligation under the
War Powers Resolution to consult with Congress prior to any future decision
to commit combat forces to El Salvador." (29) On July 26,
1983, the House rejected an amendment to the Defense Authorization bill
(H.R. 2969) to limit the number of active duty military advisers in El
Salvador to 55, unless the President reported any increase above that level
under section 4(a)(1) of the War Powers Resolution. (30) Nevertheless,
the Administration in practice kept the number of trainers at 55.
Honduras: When Are Military Exercises More than Training?
Military exercises in Honduras in 1983 and subsequent years raised the
question of when military exercises should be reported under the War Powers
Resolution. Section 4(a)(2) requires the reporting of introduction of troops
equipped for combat, but exempts deployments which relate solely to training.
On July 27, 1983, President Reagan announced "joint training exercises" planned
for Central America and the Caribbean. The first contingent of U.S. troops
landed in Honduras on August 8, 1983, and the series of ground and ocean
exercises continued for several years, involving thousands of ground troops
plus warships and fighter planes.
The President did not report the exercises under the War Powers Resolution.
He characterized the maneuvers as routine and said the United States had
been regularly conducting joint exercises with Latin American countries
since 1965. Some Members of Congress, on the other hand, contended that
the exercises were part of a policy to support the rebels or "contras" fighting
the Sandinista Government of Nicaragua, threatening that government, and
increased the possibility of U.S. military involvement in hostilities in
Central America.
Several Members of Congress called for reporting the actions under the
War Powers Resolution, but some sought other vehicles for congressional
control. In 1982, the Boland amendment to the Defense Appropriations Act
had already prohibited use of funds to overthrow the Government of Nicaragua
or provoke a military exchange between Nicaragua or Honduras. (31) Variations of
this amendment followed in subsequent years. After press reports in 1985
that the option of invading Nicaragua was being discussed, the Defense
Authorization Act for Fiscal Year 1986 stated the sense of Congress that
U.S. armed forces should not be introduced into or over Nicaragua for combat. (32) In
1986, after U.S. helicopters ferried Honduran troops to the Nicaraguan
border area, Congress prohibited U.S. personnel from participating in assistance
within land areas of Honduras and Costa Rica within 120 miles of the Nicaraguan
border, or from entering Nicaragua to provide military advice or support
to paramilitary groups operating in that country. (33) Gradually
the issue died with peace agreements in the region and the electoral defeat
of the Sandinista regime in Nicaragua in 1990.
Lebanon: How Can Congress Invoke the War Powers Resolution?
The War Powers Resolution faced a major test when Marines sent to participate
in a Multinational Force in Lebanon in 1982 became the targets of hostile
fire in August 1983. During this period President Reagan filed three reports
under the War Powers Resolution, but he did not report under section 4(a)(1)
that the forces were being introduced into hostilities or imminent hostilities,
thus triggering the 60-90 day time limit.
On September 29, 1983, Congress passed the Multinational Force in Lebanon
Resolution determining that the requirements of section 4(a)(1) of the
War Powers Resolution became operative on August 29, 1983. (34) In the same
resolution, Congress authorized the continued participation of the Marines
in the Multinational Force for 18 months. The resolution was a compromise
between Congress and the President. Congress obtained the President's signature
on legislation invoking the War Powers Resolution for the first time, but
the price for this concession was a congressional authorization for the
U.S. troops to remain in Lebanon for 18 months.
The events began on July 6, 1982, when President Reagan announced he would
send a small contingent of U.S. troops to a multinational force for temporary
peacekeeping in Lebanon. Chairman of the House Foreign Affairs Committee
Clement Zablocki wrote President Reagan that if such a force were sent,
the United States would be introducing forces into imminent hostilities
and a report under section 4(a)(1) would be required. When the forces began
to land on August 25, President Reagan reported but did not cite section
4(a)(1) and said the agreement with Lebanon ruled out any combat responsibilities.
After overseeing the departure of the Palestine Liberation Organization
force, the Marines in the first Multinational Force left Lebanon on September
10, 1982.
The second dispatch of Marines to Lebanon began on September 20, 1982.
President Reagan announced that the United States, France, and Italy had
agreed to form a new multinational force to return to Lebanon for a limited
period of time to help maintain order until the lawful authorities in Lebanon
could discharge those duties. The action followed three events that took
place after the withdrawal of the first group of Marines: the assassination
of Lebanon President-elect Bashir Gemayel, the entry of Israeli forces
into West Beirut, and the massacre of Palestinian civilians by Lebanese
Christian militiamen.
On September 29, 1982, President Reagan submitted a report that 1,200
Marines had begun to arrive in Beirut, but again he did not cite section
4(a)(1), saying instead that the American force would not engage in combat.
As a result of incidents in which Marines were killed or wounded, there
was again controversy in Congress on whether the President's report should
have been filed under section 4(a)(1). In mid-1983 Congress passed the
Lebanon Emergency Assistance Act of 1983 requiring statutory authorization
for any substantial expansion in the number or role of U.S. Armed Forces
in Lebanon. It also included Section 4(b) that stated:
Nothing in this section is intended to modify,
limit, or suspend any of the standards and procedures prescribed by the
War Powers Resolution of 1983. (35)
President Reagan reported on the Lebanon situation for the third time
on August 30, 1983, still not citing section 4(a)(1), after fighting broke
out between various factions in Lebanon and two Marines were killed.
The level of fighting heightened, and as the Marine casualties increased
and the action enlarged, there were more calls in Congress for invocation
of the War Powers Resolution. Several Members of Congress said the situation
had changed since the President's first report and introduced legislation
that took various approaches. Senator Charles Mathias introduced S.J.Res.
159 stating that the time limit specified in the War Powers Resolution
had begun on August 31, 1983, and authorizing the forces to remain in Lebanon
for a period of 120 days after the expiration of the 60-day period. Representative
Thomas Downey introduced H.J.Res. 348 directing the President to report
under section 4(a)(1) of the War Powers Resolution. Senator Robert Byrd
introduced S.J.Res. 163 finding that section 4(a)(1) of the war powers
resolution applied to the present circumstances in Lebanon. The House Appropriations
Committee approved an amendment to the continuing resolution for fiscal
year 1984 (H.J.Res. 367), sponsored by Representative Clarence Long, providing
that after 60 days, funds could not be "obligated or expended for peacekeeping
activities in Lebanon by United States Armed Forces," unless the President
had submitted a report under section 4(a)(1) of the War Powers Resolution.
A similar amendment was later rejected by the full body, but it reminded
the Administration of possible congressional actions.
On September 20, congressional leaders and President Reagan agreed on
a compromise resolution invoking section 4(a)(1) and authorizing the Marines
to remain for 18 months. The resolution became the first legislation to
be handled under the expedited procedures of the War Powers Resolution.
On September 28, the House passed H.J.Res. 364 by a vote of 270 to 161.
After three days of debate, on September 29, the Senate passed S.J.Res.
159 by a vote of 54 to 46. The House accepted the Senate bill by a vote
of 253 to 156. As passed, the resolution contained four occurrences that
would terminate the authorization before eighteen months: (1) the withdrawal
of all foreign forces from Lebanon, unless the President certified continued
U.S. participation was required to accomplish specified purposes; (2) the
assumption by the United Nations or the Government of Lebanon of the responsibilities
of the Multinational Force; (3) the implementation of other effective security
arrangements; or (4) the withdrawal of all other countries from participation
in the Multinational Force. (36)
Shortly afterward, on October 23, 1983, 241 U.S. Marines in Lebanon were
killed by a suicide truck bombing, bringing new questions in Congress and
U.S. public opinion about U.S. participation. On February 7, 1984, President
Reagan announced the Marines would be redeployed and on, March 30, 1984,
reported to Congress that U.S. participation in the Multinational Force
in Lebanon had ended.
Grenada: Do the Expedited Procedures Work?
On October 25, 1983, President Reagan reported to Congress "consistent
with" the War Powers Resolution that he had ordered a landing of approximately
1900 U.S. Army and Marine Corps personnel in Grenada. He said that the
action was in response to a request from the Organization of Eastern Caribbean
States which had formed a collective security force to restore order in
Grenada, where anarchic conditions had developed, and to protect the lives
of U.S. citizens.
Many Members of Congress contended that the President should have cited
section 4(a)(1) of the War Powers Resolution, which would have triggered
the 60-90 day time limitation. On November 1, 1983, the House supported
this interpretation when it adopted, by a vote of 403-23, H.J Res. 402
declaring that the requirements of section 4(a)(1) had become operative
on October 25. The Senate did not act on this measure and a conference
was not held. The Senate had adopted a similar measure on October 28 by
a vote of 64 to 20, but on November 17 the provision was deleted in the
conference report on the debt limit bill to which it was attached. (37) Thus both Houses
had voted to invoke section 4(a)(1), but the legislation was not completed.
On November 17, White House spokesman Larry Speakes said the Administration
had indicated that there was no need for action as the combat troops would
be out within the 60-90 day time period. Speaker Thomas O'Neill took the
position that, whether or not Congress passed specific legislation, the
War Powers Resolution had become operative on October 25. By December 15,
1983, all U.S. combat troops had been removed from Grenada.
Eleven Members of Congress filed a suit challenging the constitutionality
of President Reagan's invasion of Grenada. A district judge held that courts
should not decide such cases unless the entire Congress used the institutional
remedies available to it. (38) An appellate
court subsequently held that the issue was moot because the invasion had
been ended. (39)
Libya: Should Congress Help Decide on Raids to Undertake
in Response to International Terrorism?
The use of U.S. forces against Libya in 1986 focused attention on the
application of the War Powers Resolution to use of military force against
international terrorism.
Tensions between the United States and Libya under the leadership of Col.
Muammar Qadhafi had been mounting for several years, particularly after
terrorist incidents at the Rome and Vienna airports on December 27, 1985.
On January 7, 1986, President Reagan said that the Rome and Vienna incidents
were the latest in a series of brutal terrorist acts committed with Qadhafi's
backing that constituted armed aggression against the United States.
The War Powers issue was first raised on March 24, 1986, when Libyan forces
fired missiles at U.S. aircraft operating in the Gulf of Sidra. In response,
the United States fired missiles at Libyan vessels and at Sirte, the Libyan
missile site involved. The U.S. presence in the Gulf of Sidra, an area
claimed by Libya, was justified as an exercise to maintain freedom of the
seas, but it was widely considered a response to terrorist activities.
Subsequently, on April 5, 1986, a terrorist bombing of a discotheque in
West Berlin occurred and an American soldier was killed. On April 14 President
Reagan announced there was irrefutable evidence that Libya had been responsible,
and U.S. Air Force planes had conducted bombing strikes on headquarters,
terrorist facilities, and military installations in Libya in response.
The President reported both cases to Congress although the report on the
bombing did not cite section 4(a)(1) and the Gulf of Sidra report did not
mention the War Powers Resolution at all. Since the actions were short
lived, there was no issue of force withdrawal, but several Members introduced
bills to amend the War Powers Resolution. One bill called for improving
consultation by establishing a special consultative group in Congress. (40) Others called
for strengthening the President's hand in combating terrorism by authorizing
the President, notwithstanding any other provision of law, to use all measures
he deems necessary to protect U.S. persons against terrorist threats. (41)
Persian Gulf, 1987: When Are Hostilities Imminent?
The War Powers Resolution became an issue in activities in the Persian
Gulf after an Iraqi aircraft fired a missile on the USS Stark on
May 17, 1987, killing 37 U.S. sailors. The attack broached the question
of whether the Iran-Iraq war had made the Persian Gulf an area of hostilities
or imminent hostilities for U.S. forces. Shortly afterwards, the U.S. adoption
of a policy of reflagging and providing a naval escort of Kuwaiti oil tankers
through the Persian Gulf raised full force the question of whether U.S.
policy was risking involvement in war without congressional authorization.
During 1987 U.S. Naval forces operating in the Gulf increased to 11 major
warships, 6 minesweepers, and over a dozen small patrol boats, and a battleship-led
formation was sent to the Northern Arabian Sea and Indian Ocean to augment
an aircraft carrier battle group already there.
For several months the President did not report any of the deployments
or military incidents under the War Powers Resolution, although on May
20, 1987, after the Stark incident, Secretary of State Shultz
submitted a report similar to previous ones consistent with War Powers
provisions, but not mentioning the Resolution. No reports were submitted
after the USS Bridgeton struck a mine on July 24, 1987, or the
U.S.-chartered Texaco-Caribbean struck a mine on August 10 and
a U.S. F-14 fighter plane fired two missiles at an Iranian aircraft perceived
as threatening.
Later, however, after various military incidents on September 23, 1987,
and growing congressional concern, the President began submitting reports "consistent
with" the War Powers Resolution and on July 13, 1988, submitted the sixth
report relating to the Persian Gulf. (42) None of the
reports were submitted under section 4(a)(1) or acknowledged that U.S.
forces had been introduced into hostilities or imminent hostilities. The
Reagan administration contended that the military incidents in the Persian
Gulf, or isolated incidents involving defensive reactions, did not add
up to hostilities or imminent hostilities as envisaged in the War Powers
Resolution. It held that "imminent danger" pay which was announced for
military personnel in the Persian Gulf on August 27, 1987, did not trigger
section 4 (a)(1). Standards for danger pay, namely, "subject to the threat
of physical harm or danger on the basis of civil insurrection, civil war,
terrorism, or wartime conditions," were broader than for hostilities of
the War Powers Resolution, and had been drafted to be available in situations
to which the War Powers Resolution did not apply. (43)
Some Members of Congress contended that if the President did not report
under section 4(a)(1), Congress itself should declare such a report should
have been submitted, as it had in the Multinational Force in Lebanon Resolution.
Several resolutions to this effect were introduced, some authorizing the
forces to remain, but none were passed. (44) The decisive
votes on the subject took place in the Senate. On September 18, 1987, the
Senate voted 50-41 to table an amendment to the Defense authorization bill
(S. 1174) to apply the provisions of the War Powers Resolution. The Senate
also sustained points of order against consideration of S.J.Res. 217, which
would have invoked the War Powers Resolution, on December 4, 1987, and
a similar bill the following year, S.J.Res. 305, on June 6, 1988.
The Senate opted for a different approach, which was to use legislation
to assure a congressional role in the Persian Gulf policy without invoking
the War Powers Resolution. Early in the situation, both Chambers passed
measures requiring the Secretary of Defense to submit a report to Congress
prior to the implementation of any agreement between the United States
and Kuwait for U.S. military protection of Kuwaiti shipping, and such a
report was submitted June 15, 1987. Later, the Senate passed a measure
that called for a comprehensive report by the President within 30 days
and provided expedited procedures for a joint resolution on the subject
after an additional 30 days. (45) The
House did not take action on the bill.
As in the case of El Salvador, some Members took the War Powers issue
to court. On August 7, 1987, Representative Lowry and 110 other Members
of Congress filed suit in the U.S. District Court for the District of Columbia,
asking the court to declare that a report was required under section 4(a)(1).
On December 18, 1987, the court dismissed the suit, holding it was a nonjusticiable
political question, and that the plaintiffs' dispute was "primarily with
fellow legislators." (46)
Compliance with the consultation requirement was also an issue. The Administration
developed its plan for reflagging and offered it to Kuwait on March 7,
1987, prior to discussing the plan with Members of Congress. A June 15,
1987, report to Congress by the Secretary of Defense stated on the reflagging
policy, "As soon as Kuwait indicated its acceptance of our offer, we began
consultations with Congress which are still ongoing." (47) This
was too late for congressional views to be weighed in on the initial decision,
after which it became more difficult to alter the policy. Subsequently,
however, considerable consultation developed and the President met with
various congressional leaders prior to some actions such as the retaliatory
actions in April 1988 against an Iranian oil platform involved in mine-laying.
With recurring military incidents, some Members of Congress took the position
that the War Powers Resolution was not being complied with, unless the
President reported under section 4(a)(1) or Congress itself voted to invoke
the Resolution. Other Members contended the Resolution was working by serving
as a restraint on the President, who was now submitting reports and consulting
with Congress. (48) Still other
Members suggested the Persian Gulf situation was demonstrating the need
to amend the War Powers Resolution.
As a result of the Persian Gulf situation, in the summer of 1988 both
the House Foreign Affairs Committee and the Senate Foreign Relations Committee,
which established a Special Subcommittee on War Powers, undertook extensive
assessments of the War Powers Resolution. Interest in the issue waned after
a cease-fire between Iran and Iraq began on August 20, 1988, and the United
States reduced its forces in the Persian Gulf area.
Invasion of Panama: Why Was the War Powers Issue Not
Raised?
On December 20, 1989, President Bush ordered 14,000 U.S. military forces
to Panama for combat, in addition to 13,000 already present. On December
21, he reported to Congress under the War Powers Resolution but without
citing section 4(a)(1). His stated objectives were to protect the 35,000
American citizens in Panama, restore the democratic process, preserve the
integrity of the Panama Canal treaties, and apprehend General Manuel Noriega,
who had been accused of massive electoral fraud in the Panamanian elections
and indicted on drug trafficking charges by two U.S. Federal courts. The
operation proceeded swiftly and General Noriega surrendered to U.S. military
authorities on January 3. President Bush said the objectives had been met,
and U.S. forces were gradually withdrawn. By February 13, all combat forces
deployed for the invasion had been withdrawn, leaving the strength just
under the 13,597 forces stationed in Panama prior to the invasion.
The President did not consult with congressional leaders before his decision,
although he did notify them a few hours in advance of the invasion. Members
of Congress had been discussing the problem of General Noriega for some
time. Before Congress adjourned, it had called for the President to intensify
unilateral, bilateral, and multilateral measures and consult with other
nations on ways to coordinate efforts to remove General Noriega from power. (49) The Senate had
adopted an amendment supporting the President's use of appropriate diplomatic,
economic, and military options "to restore constitutional government to
Panama and to remove General Noriega from his illegal control of the Republic
of Panama", but had defeated an amendment authorizing the President to
use U.S. military force to secure the removal of General Noriega "notwithstanding
any other provision of law." (50)
The Panama action did not raise much discussion in Congress about the
War Powers Resolution. This was in part because Congress was out of session.
The first session of the 101st Congress had ended on November 22, 1989,
and the second session did not begin until January 23, 1990, when the operation
was essentially over and it appeared likely the additional combat forces
would be out of Panama within 60 days of their deployment. Moreover, the
President's action in Panama was very popular in American public opinion
and supported by most Members of Congress because of the actions of General
Noriega. After it was over, on February 7, 1990, the House Passed H.Con.Res.
262 which stated that the President had acted "decisively and appropriately
in ordering United States forces to intervene in Panama."
Major Cases and Issues in the Post-Cold War World:
United Nations Actions
After the end of the Cold War in 1990, the United States began to move
away from unilateral military actions toward actions authorized or supported
by the United Nations. Under the auspices of U.N. Security Council resolutions,
U.S. forces were deployed in Kuwait and Iraq, Somalia, former Yugoslavia/Bosnia,
and Haiti. This raised the new issue of whether the War Powers Resolution
applied to U.S. participation in U.N. military actions. It was not a problem
during the Cold War because the agreement among the five permanent members
required for Security Council actions seldom existed. An exception, the
Korean war, occurred before the War Powers Resolution was enacted. (51)
The more basic issue--under what circumstances congressional authorization
is required for U.S. participation in U.N. military operations--is an unfinished
debate remaining from 1945. Whether congressional authorization is required
depends on the types of U.N. action and is governed by the U.N. Participation
Act (P.L. 79-264, as amended), as well as by the War Powers Resolution
and war powers under the Constitution. Appropriations action by Congress
also may be determinative as a practical matter.
For armed actions under Articles 42 and 43 of the United Nations Charter,
Section 6 of the U.N. Participation Act authorizes the President to negotiate
special agreements with the Security Council "which shall be subject
to the approval of the Congress by appropriate Act or joint resolution",
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.
Section 7 of the United Nations Participation Act, added in 1949 by P.L.
81-341, 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
since 1948, that appear to fall within the authorization in Section 7 of
the Participation Act. Controversy has arisen when larger numbers of forces
have been deployed or when it appears the forces might be serving as combatants.
The War Powers Resolution neither excludes United Nations actions from
its provisions nor makes any special procedures for them. Section 8(a)(2)
states that authority to introduce U. S. Armed Forces into hostilities
shall not be inferred from any treaty unless it is implemented by legislation
specifically authorizing the introduction and stating that it is intended
to constitute specific statutory authorization within the meaning of the
War Powers resolution. (52) One purpose
of this provision was to ensure that both Houses of Congress be affirmatively
involved in any U.S. decision to engage in hostilities pursuant to a treaty,
since only the Senate approved a treaty. (53)
From 1990 through 1999, Congress primarily dealt with the issue on a case
by case basis, but Members also enacted some measures seeking more control
over U.S. participation in future peacekeeping actions wherever they might
occur. The Defense Appropriations Act for FY1994 stated the sense of Congress
that funds should not be expended for U.S. Armed Forces serving under U.N.
Security Council actions unless the President consults with Congress at
least 15 days prior to deployment and not later than 48 hours after such
deployment, except for humanitarian operations. (54) The Defense
Authorization Act for FY1994 required a report to Congress by April 1,
1994, including discussion of the requirement of congressional approval
for participation of U.S. Armed Forces in multinational peacekeeping missions,
proposals to conclude military agreements with the U.N. Security Council
under Article 43 of the U.N. Charter, and the applicability of the War
Powers Resolution and the U.N. Participation Act. (55) In 1994 and
1995, Congress attempted to gain a greater role in U.N. and other peacekeeping
operations through authorization and appropriation legislation. A major
element of the House Republicans' Contract with America, H.R. 7, would
have placed notable constraints on Presidential authority to commit U.S.
forces to international peacekeeping operations. Senator Dole's, S. 5,
The Peace Powers Act, introduced in January 1995, would have also placed
greater legislative controls on such operations. General and specific funding
restrictions and Presidential reporting requirements were passed for peacekeeping
operations underway or in prospect. Some of these legislative enactments
led to Presidential vetoes. These representative legislative actions are
reviewed below as they apply to given cases. (56)
Persian Gulf War, 1991: How Does the War Powers Resolution
Relate to the United Nations and a Real War?
On August 2, 1990, Iraqi troops under the direction of President Saddam
Hussein invaded Kuwait, seized its oil fields, installed a new government
in Kuwait City, and moved on toward the border with Saudi Arabia. Action
to repel the invasion led to the largest war in which the United States
has been involved since the passage of the War Powers Resolution. Throughout
the effort to repel the Iraqi invasion, President Bush worked in tandem
with the United Nations, organizing and obtaining international support
and authorization for multilateral military action against Iraq.
A week after the invasion, on August 9, President Bush reported to Congress "consistent
with the War Powers Resolution" that he had deployed U.S. armed forces
to the region prepared to take action with others to deter Iraqi aggression.
He did not cite section 4(a)(1) and specifically stated, "I do not believe
involvement in hostilities is imminent."
The President did not consult with congressional leaders prior to the
deployment, but both houses of Congress had adopted legislation supporting
efforts to end the Iraqi occupation of Kuwait, particularly using economic
sanctions and multilateral efforts. On August 2, shortly before its recess,
the Senate by a vote of 97-0 adopted S.Res. 318 urging the President "to
act immediately, using unilateral and multilateral measures, to seek the
full and unconditional withdrawal of all Iraqi forces from Kuwaiti territory" and
to work for collective international sanctions against Iraq including,
if economic sanctions prove inadequate, "additional multilateral actions,
under Article 42 of the United Nations Charter, involving air, sea, and
land forces as may be needed..." Senate Foreign Relations Committee Chairman
Pell stressed, however, that the measure did not authorize unilateral U.S.
military actions. Also on August 2, the House passed H.R. 5431 condemning
the Iraqi invasion and calling for an economic embargo against Iraq.
The United Nations imposed economic sanctions against Iraq on August 7,
and the United States and United Kingdom organized an international naval
interdiction effort. (57) Later, on August
25, the U.N. Security Council authorized "such measures as may be necessary" to
halt shipping and verify cargoes that might be going to Iraq.
Both Houses adopted measures supporting the deployment, but neither measure
was enacted. On October 1, 1990, the House passed H.J.Res. 658 supporting
the action and citing the War Powers Resolution without stating that Section
4(a)(1) had become operative. The resolution quoted the President's statement
that involvement in hostilities was not imminent. Representative Fascell
stated that H.J.Res. 658 was not to be interpreted as a Gulf of Tonkin
resolution that granted the President open-ended authority, and that it
made clear that "a congressional decision on the issue of war or peace
would have to be made through joint consultation." The Senate did not act
on H.J.Res. 658.
On October 2, 1990, the Senate by a vote of 96-3 adopted S.Con.Res. 147,
stating that "Congress supports continued action by the President in accordance
with the decisions of the United Nations Security Council and in accordance
with United States constitutional and statutory processes, including the
authorization and appropriation of funds by the Congress, to deter Iraqi
aggression and to protect American lives and vital interest in the region." As
in the House, Senate leaders emphasized that the resolution was not to
be interpreted as an open-ended resolution similar to the Gulf of Tonkin
resolution. The resolution made no mention of the War Powers Resolution.
The House did not act on S.Con.Res. 147. Congress also supported the action
by appropriating funds for the preparatory operation, called Operation
Desert Shield, and later for war activities called Operation Desert Storm.
Some Members introduced legislation to establish a special consultation
group, but the Administration objected to a formally established group.
On October 23, 1990, Senate Majority Leader Mitchell announced that he
and Speaker Foley had designated Members of the joint bipartisan leadership
and committees of jurisdiction to make themselves available as a group
for consultation on developments in the Persian Gulf. By this time U.S.
land, naval, and air forces numbering more than 200,000 had been deployed.
After the 101st Congress had adjourned, President Bush on November 8,
1990, ordered an estimated additional 150,000 troops to the Gulf. He incurred
considerable criticism because he had not informed the consultation group
of the buildup although he had met with them on October 30. On November
16, President Bush sent a second report to Congress describing the continuing
and increasing deployment of forces to the region. He stated that his opinion
that hostilities were not imminent had not changed. The President wrote, "The
deployment will ensure that the coalition has an adequate offensive military
option should that be necessary to achieve our common goals." By the end
of the year, approximately 350,000 U.S. forces had been deployed to the
area.
As the prospect of a war without congressional authorization increased,
on November 20, 1990, Representative Ron Dellums and 44 other Democratic
Members of Congress sought a judicial order enjoining the President from
offensive military operations in connection with Operation Desert Shield
unless he consulted with and obtained an authorization from Congress. On
November 26, 11 prominent law professors filed a brief in favor of such
a judicial action, arguing that the Constitution clearly vested Congress
with the authority to declare war and that Federal judges should not use
the political questions doctrine to avoid ruling on the issue. The American
Civil Liberties Union also filed a memorandum in favor of the plaintiffs.
On December 13, Judge Harold Greene of the Federal district court in Washington
denied the injunction, holding that the controversy was not ripe for judicial
resolution because a majority of Congress had not sought relief and the
executive branch had not shown sufficient commitment to a definitive course
of action. (58) However,
throughout his opinion Judge Greene rejected the Administration's arguments
for full Presidential war powers.
On November 29, 1990, U.N. Security Council Resolution 678 authorized
member states to use "all necessary means" to implement the Council's resolutions
and restore peace and security in the area, unless Iraq complied with the
U.N. resolutions by January 15, 1991. As the deadline for Iraqi withdrawal
from Kuwait neared, President Bush indicated that if the Iraqi forces did
not withdraw from Kuwait, he was prepared to use force to implement the
U.N. Security Council resolutions. Administration officials contended that
the President did not need any additional congressional authorization for
this purpose. (59)
After the 102nd Congress convened, on January 4, 1991, House and Senate
leaders announced they would debate U.S. policy beginning January 10. A
week before the January 15 deadline, on January 8, 1991, President Bush,
in a letter to the congressional leaders, requested a congressional resolution
supporting the use of all necessary means to implement U.N. Security Council
Resolution 678. He stated that he was "determined to do whatever is necessary
to protect America's security" and that he could "think of no better way
than for Congress to express its support for the President at this critical
time." It is noteworthy that the President's request for a resolution was
a request for congressional "support" for his undertaking in the Persian
Gulf, not for "authority" to engage in the military operation. In a press
conference on January 9, 1991, President Bush reinforced this distinction
in response to questions about the use of force resolution being debated
in Congress. He was asked whether he thought he needed the resolution,
and if he lost on it would he feel bound by that decision. President Bush
in response stated: "I don't think I need it...I feel that I have the authority
to fully implement the United Nations resolutions." He added that he felt
that he had "the constitutional authority--many attorneys having so advised
me." (60)
On January 12, 1991, both houses passed the "Authorization for Use of
Military Force Against Iraq Resolution" (P.L. 102-1). (61) Section 2(a)
authorized the President to use U.S. Armed Forces pursuant to U.N. Security
Council Resolution 678 to achieve implementation of the earlier Security
Council resolutions. Section 2(b) required that first the President would
have to report that the United States had used all appropriate diplomatic
and other peaceful means to obtain compliance by Iraq with the Security
Council resolution and that those efforts had not been successful. Section
2(c) stated that it was intended to constitute specific statutory authorization
within the meaning of Section 5(b) of the War Powers Resolution. Section
3 required the President to report every 60 days on efforts to obtain compliance
of Iraq with the U.N. Security Council resolution.
In his statement made after signing H.J.Res. 77 into law, President Bush
said the following: "As I made clear to congressional leaders at the outset,
my request for congressional support did not, and my signing this resolution
does not, constitute any change in the long-standing positions of the executive
branch on either the President's constitutional authority to use the Armed
Forces to defend vital U.S. interests or the constitutionality of the War
Powers Resolution." He added that he was pleased that "differences on these
issues between the President and many in the Congress have not prevented
us from uniting in a common objective." (62)
On January 16, President Bush made the determination required by P.L.
102-1 that diplomatic means had not and would not compel Iraq to withdraw
from Kuwait. On January 18, he reported to Congress "consistent with the
War Powers Resolution" that he had directed U.S. forces to commence combat
operations on January 16.
After the beginning of the war Members of Congress strongly supported
the President as Commander-in-Chief in his conduct of the war. On March
19, 1991, President Bush reported to Congress that the military operations
had been successful, Kuwait had been liberated, and combat operations had
been suspended on February 28, 1991.
Prior to passage of P.L. 102-1, some observers questioned the effectiveness
of the War Powers Resolution on grounds that the President had begun the
action, deployed hundreds of thousands of troops without consultation of
Congress, and was moving the Nation increasingly close to war without congressional
authorization. After the passage of P.L. 102-1 and the war had begun, Chairman
of the House Committee on Foreign Affairs Fascell took the position that "the
War Powers Resolution is alive and well"; the President had submitted reports
to Congress, and Congress, in P.L. 102-1, had provided specific statutory
authorization for the use of force. In his view, the strength and wisdom
of the War Powers Resolution was that it established a process by which
Congress could authorize the use of force in specific settings for limited
purposes, short of a total state of war.
The question is sometimes raised why Congress did not declare war against
Iraq. Speaker Foley told the National Press Club on February 7, 1991, that "The
reason we did not declare a formal war was not because there is any difference
I think in the action that was taken and in a formal declaration of war
with respect to military operations, but because there is some question
about whether we wish to excite or enact some of the domestic consequences
of a formal declaration of war -- seizure of property, censorship, and
so forth, which the President neither sought nor desired."
Iraq-Post Gulf War: How Long Does an Authorization
Last?
After the end of Operation Desert Storm, U.S. military forces were used
to deal with three continuing situations in Iraq. These activities raised
the issue of how long a congressional authorization for the use of force
lasts.
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. On May 17, 1991,
President Bush reported to Congress that the Iraqi repression of the Kurdish
people had necessitated a limited introduction of U.S. forces into northern
Iraq for emergency relief purposes. On July 16, 1991, he reported that
U.S. forces had withdrawn from northern Iraq but that the U.S. remained
prepared to take appropriate steps as the situation required and that,
to this end, an appropriate level of forces would be maintained in the
region for "as long as required."
A second situation stemmed from the cease-fire resolution, Security Council
Resolution 687 of April 3, 1991, which called for Iraq to accept the destruction
or removal of chemical and biological weapons and international control
of its nuclear materials. On September 16, 1991, President Bush reported
to Congress that Iraq continued to deny inspection teams access to weapons
facilities and that this violated the requirements of Resolution 687, and
the United States if necessary would take action to ensure Iraqi compliance
with the Council's decisions. He reported similar non-cooperation on January
14, 1992, and May 15, 1992.
On July 16, 1992, President Bush reported particular concern about the
refusal of Iraqi authorities to grant U.N. inspectors access to the Agricultural
Ministry. The President consulted congressional leaders on July 27, and
in early August the United States began a series of military exercises
to take 5,000 U.S. troops to Kuwait. On September 16, 1992, the President
reported, "We will remain prepared to use all necessary means, in accordance
with U.N. Security Council resolutions, to assist the United Nations in
removing the threat posed by Iraq's chemical, biological, and nuclear weapons
capability."
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
were concentrated. After violations of the no-fly zones and various other
actions by Iraq, on January 13, 1993, the 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 19, 1993, President Bush reported
to Congress that U.S. aircraft had shot down an Iraqi aircraft on December
27, 1992, 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 Bush Administration. On January
22 and 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. On September 23, 1993, President Clinton reported
that since the August 19 action, the Iraqi installation fired upon had
not displayed hostile intentions.
In a separate incident, on June 28, 1993, President Clinton reported to
Congress "consistent with the War Powers Resolution" that on June 26 U.S.
naval forces at his direction 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 upon the impact of the
missiles. He said the Iraqi Intelligence Service had planned the failed
attempt to assassinate former President Bush during his visit to Kuwait
in April 1993.
The question was raised as to whether the Authorization for the Use of
Force in Iraq (P.L. 102-1) authorized military actions after the conclusion
of the war. 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 relating to Iraq's invasion of
Kuwait. The cease-fire resolution, Security Council Resolution 687, was
adopted afterwards and therefore not included in Resolution 678.
Congress endorsed the view that further specific authorization was not
required for U.S. military action to maintain the ceasefire agreement.
Specifically, section 1095 of P.L.102-190 stated the sense of Congress
that it supported 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. Section 1096 supported
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.
The issue of Congressional authorization was debated again in 1998. On
March 31, 1998, the House passed a Supplemental Appropriations bill (H.R.
3579) that would have banned the use of funds appropriated in it for the
conduct of offensive operations against Iraq, unless such operations were
specifically authorized by law. This provision was dropped in the conference
with the Senate.
A more broad-gauged approach to the issue of Congressional authorization
of military force was attempted in mid-1998. On June 24, 1998, the House
passed H.R. 4103, the Defense Department Appropriations bill for FY1999,
with a provision by Rep. David 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.
As events developed, beginning in late 1998, and continuing into the period
prior to the U.S. military invasion of Iraq in March 2003, the United States
conducted a large number of ad-hoc air attacks against Iraqi ground installations
and military targets in response to violations of the Northern and Southern "no-fly
zones" by the Iraqi, and threatening actions taken against U.S. and coalition
aircraft enforcing these "no-fly" sectors. Congressional authorization
to continue these activities was not sought by the President, nor were
these many incidents reported under the War Powers Resolution. The "no-fly
zones" activities were terminated following the 2003 War with Iraq.
Somalia: When Does Humanitarian Assistance Require
Congressional Authorization?
In Somalia, the participation of U.S. military forces in a U.N. operation
to protect humanitarian assistance became increasingly controversial as
fighting and casualties increased and the objectives of the operation appeared
to be expanding.
On December 4, 1992, President Bush ordered thousands of U.S. military
forces to Somalia to protect humanitarian relief from armed gangs. Earlier,
on November 25, the President had offered U.S. forces, and on December
3, the United Nations Security Council had adopted Resolution 794 welcoming
the U.S. offer and authorizing the Secretary-General and members cooperating
in the U.S. offer "to use all necessary means to establish as soon as possible
a secure environment for humanitarian relief operations in Somalia." The
resolution also called on member states to provide military forces and
authorized the Secretary-General and the states concerned to arrange for
unified command and control.
On December 10, 1992, President Bush reported to Congress "consistent
with the War Powers Resolution" that on December 8, U.S. armed forces entered
Somalia to secure the air field and port facility of Mogadishu and that
other elements of the U.S. armed forces were being introduced into Somalia
to achieve the objectives of U.N. Security Council Resolution 794. He said
the forces would remain only as long as necessary to establish a secure
environment for humanitarian relief operations and would then turn over
responsibility for maintaining this environment to a U.N. peacekeeping
force. The President said that it was not intended that the U.S. armed
forces become involved in hostilities, but that the forces were equipped
and ready to take such measures as might be needed to accomplish their
humanitarian mission and defend themselves. They would also have the support
of any additional U.S. forces necessary. By mid-January, U.S. forces in
Somalia numbered 25,000.
Since the President did not cite Section 4(a)(1), the 60-day time limit
was not necessarily triggered. By February, however, the U.S. force strength
was being reduced, and it was announced the United States expected to turn
over responsibility for protecting humanitarian relief shipments in Somalia
to a U.N. force that would include U.S. troops. On March 26, 1993, the
Security Council adopted Resolution 814 expanding the mandate of the U.N.
force and bringing about a transition from a U.S.-led force to a U.N.-led
force (UNOSOM II). By the middle of May, when the change to U.N. control
took place, the U.S. forces were down to approximately 4,000 troops, primarily
logistics and communications support teams, but also a rapid deployment
force of U.S. Marines stationed on Navy ships.
Violence within Somalia began to increase again. On June 5, 1993, attacks
killed 23 Pakistani peacekeepers, and a Somali regional leader, General
Aidid, was believed responsible. The next day the U.N. Security Council
adopted Resolution 837 reaffirming the authority of UNOSOM II to take all
necessary measures against those responsible for the armed attacks. On
June 10, 1993, President Clinton reported "consistent with the War Powers
Resolution" that the U.S. Quick Reaction Force had executed military strikes
to assist UNOSOM II in quelling violence against it. On July 1, President
Clinton submitted another report, not mentioning the War Powers Resolution,
describing further air and ground military operations aimed at securing
General Aidid's compound and neutralizing military capabilities that had
been an obstacle to U.N. efforts to deliver humanitarian relief and promote
national reconstruction.
From the beginning, a major issue for Congress was whether to authorize
U.S. action in Somalia. On February 4, 1993, the Senate had passed S.J.Res.
45 that would authorize the President to use U.S. armed forces pursuant
to U.N. Security Council Resolution 794. S.J.Res. 45 stated it was intended
to constitute the specific statutory authorization under Section 5(b) of
the War Powers Resolution. On May 25, 1993, the House amended S.J.Res.
45 to authorize U.S. forces to remain for one year. S.J.Res. 45 was then
sent to the Senate for its concurrence, but the Senate did not act on the
measure.
As sporadic fighting resulted in the deaths of Somali and U.N. forces,
including Americans, controversy over the operation intensified, and Congress
took action through other legislative channels. In September 1993 the House
and Senate adopted amendments to the Defense Authorization Act for FY1994
asking that the President consult with Congress on policy toward Somalia,
and report the goals, objectives, and anticipated jurisdiction of the U.S.
mission in Somalia by October 15, 1993; the amendments expressed the sense
that the President by November 15, 1993, should seek and receive congressional
authorization for the continued deployment of U.S. forces to Somalia. (63) On October 7,
the President consulted with congressional leaders from both parties for
over two hours on Somalia policy. On October 13, President Clinton sent
a 33-page report to Congress on his Somalia policy and its objectives.
Meanwhile, on October 7 President Clinton said that most U.S. forces would
be withdrawn from Somalia by March 31, 1994. To ensure this, the Defense
Department Appropriations Act for FY1994, cut off funds for U.S. military
operations in Somalia after March 31, 1994, unless the President obtained
further spending authority from Congress. (64) Congress approved
the use of U.S. military forces in Somalia 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; it required
that U.S. combat forces in Somalia remain under the command and control
of U.S. commanders under the ultimate direction of the President.
Earlier, some Members suggested that the U.S. forces in Somalia were clearly
in a situation of hostilities or imminent hostilities, and that if Congress
did not authorize the troops to remain, the forces should be withdrawn
within 60 to 90 days. After a letter from House Foreign Affairs Committee
Ranking Minority Member Benjamin Gilman and Senate Foreign Relations Committee
Ranking Minority Member Jesse Helms, Assistant Secretary Wendy Sherman
replied on July 21, 1993, that no previous Administrations had considered
that intermittent military engagements, whether constituting hostilities,
would necessitate the withdrawal of forces pursuant to Section 5(b); and
the War Powers Resolution, in their view, was intended to apply to sustained
hostilities. The State Department did not believe congressional authorization
was necessary, although congressional support would be welcome. On August
4, 1993, Representative Gilman asserted that August 4 might be remembered
as the day the War Powers Resolution died because combat broke out in Somalia
on June 5 and the President had not withdrawn U.S. forces and Congress
had "decided to look the other way." On October 22, 1993, Representative
Gilman introduced H.Con.Res. 170 directing the President pursuant to section
5(c) of the War Powers Resolution to withdraw U.S. forces from Somalia
by January 31, 1994. The House adopted an amended version calling for withdrawal
by March 31, 1994. (65) The Senate did
not act on this non-binding measure.
However, 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. Subsequently, on November 4, 1994, 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.
Another war powers issue was the adequacy of consultation before the dispatch
of forces. On December 4, 1992, President Bush had met with a number of
congressional leaders to brief them on the troop deployment. In his December
10 report, President Bush stressed that he had taken into account the views
expressed in H.Con.Res. 370, S.Con.Res. 132, and P.L. 102-274 on the urgent
need for action
