Posted on 11/25/2001 6:41:59 AM PST by Luis Gonzalez
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 both 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.
In the past 20 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 nearly 50 reports to Congress under 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 On November 9, 1993, the House used a section of the War Powers Resolution to state that U.S. forces should be withdrawn from Somalia by March 31, 1994; Congress had already taken this action in appropriations.
Currently, war powers are an issue in Iraq, former Yugoslavia, Haiti, and Rwanda. After the combat operations against Iraqi forces ended on February 28, 1991, the use of force to obtain compliance with U.N. resolutions remained an issue. On several occasions in 1993 and 1994, President Clinton reported U.S. forces helping NATO enforce U.N. Security Council resolutions concerning Bosnia-Hercegovina. On October 20, 1993, President Clinton reported sending warships to help enforce a U.N. embargo against Haiti. In 1994, U.S. forces were sent to Rwanda to help with relief efforts.
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.
On September 3-4, 1996, President Clinton ordered U.S. air and naval forces in the Persian Gulf region to launch cruise missile attacks on Iraqi military installations in response to Iraqi military actions against a Kurdish enclave in northern Iraq. The 104th Congress adjourned in October 1996 without enacting major legislation to curtail United States military participation in multinational peacekeeping operations.
In mid-November President Clinton stated he intended to supply U.S. troops to a NATO follow-on force in Bosnia, after the current NATO IFOR mission winds down at the end of 1996.
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 additional information, see CRS Report 96-476, The War Powers Resolution: Twenty-Two Years of Experience.)
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 U.N. Participation Act (P.L. 79-264, as amended), as well as by the War Powers Resolution and war powers under the Constitution. 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 they 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 have 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. The report has not yet been received.
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.
H.R. 7, the National Security Revitalization Act, as passed by the House on February 16, 1995, would have, among other things, prohibited use of DOD funds for placement of U.S. armed forces under the command or control of the United Nations for the purpose of international peacekeeping, peace-enforcing, or similar activity authorized by the Security Council, unless Congress specifically authorizes it by law, or it is exempted from this requirement by a Presidential certification. S. 5, the Peace Powers Act of 1995, introduced by Senator Dole on January 4, 1995, would also have placed the above restriction in place, and repealed most of the existing War Powers Resolution. H.R. 1111, introduced by Representative Dornan on March 2, would also have repealed most of the existing War Powers Resolution. On March 15, 1995, Senator Biden introduced S.564, aimed at clarifying Presidential authority regarding the use of force abroad. None of these measures were enacted during the 104th Congress.
On July 3, 1993, Haitian military leader Raoul Cedras and deposed President JeanBertrand 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. In conjunction with the agreement, President Clinton offered to send 350 troops and military engineers to Haiti to help retrain the Haitian armed forces and work on construction projects. A first group of American and Canadian troops arrived on October 6. On October 11, a group of armed civilians blocked additional forces from landing, and on October 12 the ship carrying them, the U.S.S. Harlan County, was ordered to leave Haitian waters.
Because the Haitian authorities were not complying 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.
Enforcement of the embargo intensified. On April 20, 1994, President Clinton further reported "consistent with the War Powers Resolution" that U.S. naval forces had continued enforcement in the waters around Haiti and that 712 vessels had been boarded. 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 May 24, 1994, the House adopted, and on June 9, 1994, reversed itself and rejected, the Goss amendment to the Defense Authorization bill (H.R. 4301). The amendment expressed the sense of Congress that the United States should not undertake any military action against the mainland of Haiti unless the President first certified to Congress that clear and present danger to U.S. citizens or interests required such action. On June 27, a point of order was sustained against an amendment to the State Department appropriations bill that sought to prohibit use of funds for any U.N. peacekeeping operation related to Haiti. On June 29, 1994, the Senate in action on H.R. 4226 repassed a provision identical to Section 8147 of P.L. 103-139 but rejected a measure making advance congressional authorization a binding requirement. On August 5 it tabled (rejected) by a vote of 63 to 31 an amendment to H.R. 4606 by Senator Specter prohibiting the President from using U.S. armed forces to depose the military leadership unless authorized in advance by Congress, necessary to protect U.S. citizens, or vital to U.S. interests.
President Clinton sought and obtained U.N. Security Council authorization for an invasion. 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. Some Members of Congress introduced resolutions such as H.Con.Res. 276 calling for congressional authorization prior to the invasion.
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 September 19, the House agreed to H.Con.Res. 290 commending the President and the special delegation to Haiti, and supporting the prompt and orderly withdrawal of U.S. forces from Haiti as soon as possible; on September 19, the Senate agreed to a similar measure, S.Res. 259. 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. For further information on Haiti, see CRS Issue Brief 96019, Haiti Under President Preval: Issues for Congress.)
The issue of war powers and whether congressional authorization is necessary for U.S. participation in U.N. action (see above discussion) has also been raised by efforts to halt fighting in the former territory of Yugoslavia, particularly in Bosnia. The United States has 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 also raised the 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 War Powers 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 binding legislation authorizing the use of U.S. forces.
On February 28, 1993, the United States began an airdrop of relief supplies aimed at Muslims surrounded by Serbian forces in Bosnia. On March 31, 1993, the U.N. Security Council authorized member states to take all necessary measures to enforce the ban on military flights over Bosnia, and on April 12, 1993, NATO planes, including U.S. planes, began patrolling over Bosnia and Hercegovina to enforce the Security Council ban. The pilots operate under orders set by NATO as to when they may fire. On April 13, 1993, President Clinton reported "consistent with Section 4 of the War Powers Resolution" that fighter aircraft participating in the NATO force were equipped for combat to accomplish their mission and for self defense and that it was not possible to predict how long such operations would be necessary.
On June 10, 1993, Secretary of State Christopher announced 300 U.S. troops would participate in the U.N. peacekeeping force, established under U.N. Security Council Resolution 795 (1992), in the former Yugoslav Republic of Macedonia. President Clinton reported this action "consistent with Section 4 of the War Powers Resolution" on July 9, 1993. He stated that this was a peacekeeping force and had been directed in accordance with Section 7 of the U.N. Participation Act. He submitted a follow-up report on January 8, 1994, and on April 19, 1994, reported that the U.S. contingent in the former Yugoslav Republic of Macedonia had been augmented by a reinforced company of 200 personnel. The Administration said the purpose was to prevent the war in Bosnia from spilling over to neighboring countries, but some observers were concerned that an attack on the forces in Macedonia could bring the United States into the conflict.
In mid-1993, planning to implement a prospective peace agreement included the possibility that the United States might supply 25,000 out of 50,000 NATO forces for the U.N. operation. During consideration of the Foreign Operations Appropriations Act (H.R. 2295), on September 23 Senate Minority Leader Robert Dole said he intended to offer an amendment stating that no additional U.S. forces should be introduced into former Yugoslavia without advance approval from Congress. President Clinton opposed such an amendment on grounds it would restrict his ability to make foreign policy. Senator Dole decided not to introduce the amendment after Senator Pell pledged that the Foreign Relations Committee would soon hold hearings on the Bosnian situation. In subsequent hearings on October 5, Assistant Secretary of State Stephen Oxman said the Clinton Administration would consult with Congress and not commit American troops to the implementation operation for a peace agreement without congressional support, but said no decision had been made on the exact method of seeking support. He said the Administration would act consistent with the War Powers Resolution. On October 13, 1993, President Clinton submitted a follow-up report on enforcement of the no-fly zone on October 13, 1993, "consistent with the War Powers Resolution," that summarized U.S. military contributions to U.N. efforts in former Yugoslavia. President Clinton said in a letter of October 20, 1993, to congressional leaders that he would welcome congressional authorization of military action on Bosnia. On October 20, the Senate adopted the Dole/Mitchell amendment to the defense appropriations bill (Section 8146 of P.L. 103-139) stating the sense of Congress that funds should not be available for U.S. forces to participate in new missions or operations to implement the peace settlement in Bosnia unless previously authorized by Congress.
On January 11, 1994, at the NATO summit conference in Brussels, leaders including President Clinton repeated an August threat to undertake air strikes on Serb positions to save Sarajevo and to consider other steps to end the conflict in Bosnia. On February 17, 1994, President Clinton reported "consistent with" the War Powers Resolution that the United States had expanded its participation in U.N. and NATO efforts to reach a peaceful solution in former Yugoslavia and that 60 U.S. aircraft were available for participation in the authorized NATO missions. On March 1, 1994, he reported that on February 28 U.S. planes patrolling the "no-fly zone" under the North Atlantic Treaty Organization (NATO) shot down 4 Serbian Galeb planes. On April 12, 1994, the President reported that on April 10 and 11, following shelling of Gorazde, one of the "safe areas," and a decision by U.N. and NATO leaders, U.S. planes bombed Bosnian Serbian nationalist positions around Gorazde. On August 22, 1994, President Clinton similarly reported that on August 5, U.S. planes under NATO had strafed a Bosnian Serb gun position in an exclusion zone. On September 22, 1994, two British and one U.S. aircraft bombed a Serbian tank in retaliation for Serb attacks on U.N. peacekeepers near Sarajevo; and on November 21 more than 30 planes from the United States, Britain, France, and the Netherlands bombed the runway of a Serb airfield in Croatia.
As the conflict in Bosnia continued, calls were made for greater congressional involvement in decisions. Senator Dole introduced S. 2042, calling for the United States to end its embargo, conducted in accordance with a U.N. Security Council Resolution against Bosnia and Herzegovina. On May 10, 1994, Majority Leader Mitchell introduced an amendment to authorize and approve the President's decision to carry out NATO decisions to support and protect UNPROFOR forces around designated safe areas; to use airpower in the Sarajevo region; and to authorize air strikes against Serb weapons around certain safe areas if these areas were attacked. The Mitchell amendment favored lifting the arms embargo but not unilaterally; it also stated no U.S. ground combat troops should be deployed in Bosnia unless previously authorized by Congress. The Senate adopted both the Dole measure, as an amendment, and the Mitchell amendment on May 12, 1994, by votes of 50-49. The Senate then adopted S. 2042 as amended. The House did not act on the measure.
The Defense Authorization Act for FY1995 (P.L. 103-337, signed October 5, 1994) provided in Section 1404 that if the Bosnian Serbs did not accept the Contact Group proposal by October 15, 1994, the President should introduce a U.N. Security Council resolution to end the arms embargo by December 1, 1994; if the Security Council had not acted by November 15, 1994, no funds could be used to enforce the embargo other than required of all U.N. members under Security Council Resolution 713. That sequence of events occurred and the United States stopped enforcing the embargo. In addition, Section 8100 of the Defense Appropriations Act, FY1995 (P.L. 103-335, signed September 30, 1994), stated the sense that its funds should not be available for the purposes of deploying U.S. armed forces to participate in implementation of a peace settlement in Bosnia unless previously authorized by Congress.
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. (For additional information, see CRS Issue Brief 91089, Bosnia-Former Yugoslavia and U.S. Policy.)
War powers questions have generally not been raised about U.S. armed forces dispatched for humanitarian aid in peaceful situations, such as 8,000 marines and sailors sent to Bangladesh on May 12, 1991, to provide disaster relief after a cyclone. Like Somalia, however, Rwanda raised the question of whether the War Powers Resolution applies and congressional authorization is required for U.S. forces since the delivery of humanitarian assistance could involve them in hostilities among Rwandans.
Rwanda erupted into violent civil conflict with hundreds of thousands of Rwandans killed in the months following the death of its President in a plane crash on April 6, 1994. President Clinton on April 12, 1994, reported under the War Powers Resolution that he had sent forces to neighboring Burundi to help, if needed, with evacuations of U.S. citizens. The United Nations already had a small observer mission (UNOMUR) and an assistance mission (UNAMIR) in Rwanda, and on May 17, the U.N. Security Council in Resolution 918 authorized 5,500 troops for UNAMIR, adding security to their functions. On June 22 the Security Council passed Resolution 929 authorizing a French deployment until August 22 to help provide a security zone.
The Administration at first ruled out sending U.S. forces to Rwanda, but agreed to provide material assistance. The situation continued to deteriorate, however, when after July 14 an estimated one to two million Rwandans fled into Zaire. On July 22, President Clinton ordered an immediate and massive increase in the U.S. humanitarian role, including a large airlift of relief supplies. On August 2, 1994, Defense Secretary William Perry said the United States had about 1200 troops in the region (Rwanda, Zaire, and Uganda); the number peaked at 2,592 in early August. He said U.S. forces would provide the humanitarian operation and not be in UNAMIR, the U.N. operation for maintaining peace, but that the United States would have security forces to provide self-protection if needed. After a few weeks, the U.S. forces began to be withdrawn and their mission turned over to private contractors or the United Nations. By September 30, 1994, all U.S. troops had departed from Rwanda and the surrounding area. In the Defense Appropriations Act for FY1995 (P.L. 103-335, signed September 30, 1994), Congress barred funds for U.S. military participation in or around Rwanda after October 7, 1994, except for any action necessary to protect U.S. citizens.
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 have 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. 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 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. 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. 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 July 27, and in early August the U.S. 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 U.N. in removing the threat posed by Iraq's chemical, biological, and nuclear weapons capability."
On June 6, 1994, President Clinton reported that the International Atomic Energy Agency had effectively disbanded the Iraqi nuclear weapons program at least for the near term, and that the U.N. Special Commission on Iraq had reduced Iraq's ability to produce chemical weapons. But, he said, the process was not complete and continued vigilance was necessary because of the belief that Saddam Hussein was committed to rebuilding his weapons of mass destruction programs. The United States would insist on a "sustained period of complete and unquestionable compliance with the monitoring and verification plans."
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 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 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 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. Approximately 20 such incidents have occurred while planes patrolled the no-fly zone. On September 23, 1993, President Clinton reported that since the August 19 action, the Iraqi installation fired upon had not displayed hostile intentions. On June 6, 1994, President Clinton reported that over the last 2 years, the northern no-fly zone had deterred Iraq from a military offensive in the northern zone, although tragically on April 14, 1994, two U.S. jets patrolling northern Iraq mistakenly shot down two U.S. helicopters in the area. 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 is whether the use of U.S. force in post-war Iraq 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 1994, Congress reaffirmed support for the protection of all Iraqi Kurdish and other minorities pursuant to Security Council Resolution 688 (Section 507 of P.L. 103-482).
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. Except for this 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. However, the reports were submitted to the required recipients of reports under the War Powers Resolution, and P.L. 102-1 stated it was the specific statutory authorization required under the Resolution. (For further information, see CRS Issue Brief 92117, Iraqi Compliance with Cease-Fire Agreements.)
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 the 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.
Presidents have submitted over 50 reports under the War Powers Resolution. Of these, President Ford submitted four, President Carter one, President Reagan fourteen, President Bush seven, and President Clinton 25. Following is a summary of reports submitted by President Clinton in 1995 and 1996. For a summary of the earlier reports submitted by Presidents Ford through Clinton, and instances not reported, see CRS Report 96-476 F, The War Powers Resolution: Twenty-Two Years of Experience.
(44) On March 1, 1995, President Clinton reported "consistent with the War Powers Resolution" that on February 27, 1995, 1,800 combat-equipped U.S. armed forces personnel began deployment into Mogadishu, Somalia, to assist in the withdrawal of U.N. forces assigned there to the United Nations Operation in Somalia (UNOSOM II).
(45) On March 21, 1995, President Clinton reported "consistent with the War Powers Resolution" that U.S. military forces in Haiti as part of a U.N. Multinational Force had been reduced to just under 5,300 personnel. He noted that as of March 31, 1995, approximately 2,500 U.S. personnel would remain in Haiti as part of the U.N. Mission in Haiti UNMIH).
(46) On May 24, 1995, President Clinton reported "consistent with the War Powers Resolution" that U.S. combat-equipped fighter aircraft and other aircraft continued to contribute to NATO's enforcement of the no-fly zone in airspace over Bosnia-Herzegovina. U.S. aircraft, he noted, are also available for close air support of U.N. forces in Croatia. Roughly 500 U.S. soldiers continue to be deployed in the former Yugoslav Republic of Macedonia as part of the U.N. Preventive Deployment Force (UNPREDEP). U.S. forces continue to support U.N. refugee and embargo operations in this region.
(47) On September 1, 1995, President Clinton reported "consistent with the War Powers Resolution," that "U.S. combat and support aircraft" had been used beginning on August 29, 1995, in a series of NATO air strikes against Bosnian Serb Army (BSA) forces in Bosnia-Herzegovina that were threatening the U.N.-declared safe areas of Sarajevo, Tuzla, and Gorazde." He noted that during the first day of operations, "some 300 sorties were flown against 23 targets in the vicinity of Sarajevo, Tuzla, Goradzde and Mostar."
(48) On September 21, 1995, President Clinton reported "consistent with the War Powers Resolution" that currently the United States has 2,400 military personnel in Haiti as participants in the U.N. Mission in Haiti (UNMIH). In addition, 260 U.S. military personnel are assigned to the U.S. Support Group Haiti.
(49) On December 6, 1995, President Clinton notified Congress, "consistent with the War Powers Resolution," that he had "ordered the deployment of approximately 1,500 U.S. military personnel to Bosnia and Herzegovina and Croatia as part of a NATO 'enabling force' to lay the groundwork for the prompt and safe deployment of the NATO-led Implementation Force (IFOR)," which would be used to implement the Bosnian peace agreement after its signing. The President also noted that he had authorized deployment of roughly 3,000 other U.S. military personnel to Hungary, Italy, and Croatia to establish infrastructure for the enabling force and the IFOR.
(50) On December 21, 1995, President Clinton notified Congress, "consistent with the War Powers Resolution," that he had ordered the deployment of approximately 20,000 U.S. military personnel to participate in the NATO-led Implementation Force (IFOR) in the Republic of Bosnia-Herzegovina, and approximately 5,000 U.S. military personnel would be deployed in other former Yugoslav states, primarily in Croatia. In addition, about 7,000 U.S. support forces would be deployed to Hungary, Italy and Croatia and other regional states in support of IFOR's mission. The President ordered participation of U.S. forces "pursuant to" his "constitutional authority to conduct the foreign relations of the United States and as Commander-in-Chief and Chief Executive."
(51) On March 21, 1996, President Clinton notified Congress "consistent with the War Powers Resolution" that beginning in January 1996 there had been a "phased reduction" in the number of United States personnel assigned to the United Nations Mission in Haiti (UNMIH). As of March 21, 309 U.S. personnel remained a part of UNMIH. These U.S. forces were "equipped for combat."
(52) On April 11, 1996, President Clinton notified Congress "consistent with the War Powers Resolution" that on April 9, 1996 due to the "deterioration of the security situation and the resulting threat to American citizens" in Liberia he had ordered U.S. military forces to evacuate from that country "private U.S. citizens and certain third-country nationals who had taken refuge in the U.S. Embassy compound...."
(53) On May 20, 1996, President Clinton notified Congress, "consistent with the War Powers Resolution" of the continued deployment of U.S. military forces in Liberia to evacuate both American citizens and other foreign personnel, and to respond to various isolated "attacks on the American Embassy complex" in Liberia." The President noted that the deployment of U.S. forces would continue until there was no longer any need for enhanced security at the Embassy and a requirement to maintain an evacuation capability in the country.
(54) On May 23, 1996, President Clinton notified Congress, "consistent with the War Powers Resolution" of the deployment of U.S. military personnel to Bangui, Central African Republic, to conduct the evacuation from that country of "private U.S. citizens and certain U.S. Government employees," and to provide "enhanced security for the American Embassy in Bangui.
(55) On June 21, 1996, President Clinton notified Congress, "consistent with the War Powers Resolution" that United States forces totaling about 17,000 remain deployed in Bosnia "under NATO operational command and control" as part of the NATO Implementation Force (IFOR). In addition, about 5,500 U.S. military personnel are deployed in Hungary, Italy and Croatia, and other regional states to provide "logistical and other support to IFOR." The President noted that it was the intention that IFOR would complete the withdrawal of all troops in the weeks after December 20, 1996, on a schedule "set by NATO commanders consistent with the safety of troops and the logistical requirements for an orderly withdrawal." He also noted that a U.S. Army contingent (of about 500 U.S. soldiers) remains in the Former Yugoslav Republic of Macedonia as part of the United Nations Preventive Deployment Force (UNPREDEP).
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 the instances involving the use of armed forces since the passage of the resolution, listed above, indicates there has been very little consultation with Congress under the War Powers 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 the 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. (See section on Issues, below.)
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 War Powers 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 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.
Begun and held at the City of Washington on Wednesday,
the third day of January, two thousand and one
Joint Resolution
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
Bump for a later read!
(I promise to try not to fill it up with typos!)
We've been attacked. The President is charged by the constitution to lead the armed forces and repell attacks on the homeland. He identified the perpetrators, and clearly stated the probability of further attacks on America and Americans. Still under the provisions of the Constitution and the War Powers Act, he asked Congress for permission to use force, it was granted, then Bush, in a televised speech, declared war on those who had declared war on us.
What thinks you?
I too agree with Luis assessment and yours as well. From what I've seen most of those who have been arguing about the legality of our actions are against any US operation outside this country. They are genuinely concerned about the growth of federal power, but I agree that they would grasp at any straw to oppose any US operations. I'd be willing to speculate that even if a Declaration of War had been passed, they would oppose that as un-Constitutional too, probably on the basis that we were conducting offensive actions and a strict reading of the Constitution only allows for defense.
Seems that Congress likes the War Powers Act because it allows them to duck their real duty to "declare war."
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