Order Code RL30308
CRS Report for Congress
Received through the CRS Web
The War Powers Resolution:
After Twenty-Five Years
September 15, 1999
Richard F. Grimmett
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress
ABSTRACT
In the 25 years since enactment of the 1973 War Powers Resolution, Presidents have
submitted 76 reports under it, but only one, in 1975 (the Mayaguez seizure), cited Section
4(a)(1), which triggers the act's time limit for U.S. forces withdrawal — and, in this case, the
military action was completed and U.S. armed forces have been used in hostile situations
without formal reports to Congress under the War Powers Resolution. This report reviews
selected cases from 1975 to August 1999 that illustrate the various issues and controversies
that have surrounded this statute. A representative review of proposals to amend it are also
set out, as is an appendix listing all presidential War Powers reports to Congress through mid-
September 1999. This report will only be revised if events warrant.
The War Powers Resolution: After Twenty-Five Years
Summary
In the post-Cold War world, Presidents have continued to commit U.S. Armed
Forces to potential hostilities without specific authorization from Congress, and the
War Powers Resolution has come under new scrutiny. 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 through a court suit to
enforce Presidential compliance with the terms of the War Powers Resolution.
The War Powers Resolution (Public Law 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.
Since 1973 until mid-September 1999, Presidents have submitted seventy-six
reports as the result of the War Powers Resolution, but only one, on the 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. President Ford submitted four reports, President Carter
one, President Reagan fourteen, and President Bush six reports. President Clinton
submitted 51 reports. The reports covered a range of military activities from embassy
evacuations to full scale combat military operations, such as the Persian Gulf conflict
or the intervention in Kosovo. In some instances U.S. Armed Forces have been used
in hostile situations without formal reports to Congress under the War Powers
Resolution. Congress determined that the requirements of section 4(a)(1) became
operative on August 29, 1983, in the Multinational Force in Lebanon Resolution, and
authorized continued U.S. participation in the Multinational Force for 18 months.
Congress also authorized the deployment of military personnel to the Sinai to
participate in the Multinational Force and Observers in 1981, and the use of military
force against Iraq in 1991.
In several instances neither the President, Congress, nor the courts proved
willing to trigger the War Powers Resolution mechanism. Some Members of Congress
contend that the Resolution has proved ineffective and should be amended. Some
suggest it should be repealed. Other Members contend that the Resolution has been
effective by increasing legislative-executive communication and congressional
leverage.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Provisions of the War Powers Resolution (P.L. 93-148) . . . . . . . . . . . . . . . . . . 2
Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Purpose and Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consultation Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Priority Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Constitutional Questions Raised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
War Powers of President and Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legislative Veto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Automatic Withdrawal Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Major Cases and Issues Prior to the Persian Gulf War . . . . . . . . . . . . . . . . . . . 11
Vietnam Evacuations and Mayaguez: What Is Consultation? . . . . . . . . . . . . . . 11
Iran Hostage Rescue Attempt: Is Consultation Always Necessary
and Possible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
El Salvador: When Are Military Advisers in Imminent Hostilities? . . . . . . 12
Honduras: When Are Military Exercises More than Training? . . . . . . . . . 14
Lebanon: How Can Congress Invoke the War Powers Resolution? . . . . . 15
Grenada: Do the Expedited Procedures Work? . . . . . . . . . . . . . . . . . . . 17
Libya: Should Congress Help Decide on Raids in Response to International
Terrorism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Persian Gulf, 1987: When Are Hostilities Imminent? . . . . . . . . . . . . . . . . 19
Invasion of Panama: Why Was the War Powers Issue Not Raised? . . . . . 21
Major Cases and Issues in the Post-Cold War World:
United Nations Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Persian Gulf War, 1991: How Does the War Powers Resolution Relate to the
United Nations and a Real War? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Congress Authorizes the War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Post-war Iraq: How Long Does an Authorization Last? . . . . . . . . . . . . . 28
Somalia: When Does Humanitarian Assistance Require Congressional
Authorization? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Former Yugoslavia/Bosnia/Kosovo: What If No Consensus Exists? . . . . 33
Bosnia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Haiti: Can the President Order Enforcement of a U.N. Embargo? . . . . . . . 41
Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Return to Senate Version: Enumerating Exceptions for Emergency Use . . 45
Shorten or Eliminate Time Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Replace Automatic Withdrawal Requirement . . . . . . . . . . . . . . . . . . . . . . 46
Cutoff of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Elimination of Action by Concurrent Resolution . . . . . . . . . . . . . . . . . . . 47
Expedited Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Consultation Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Change of Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United Nations Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Appendix 1. Instances Reported under the War Powers Resolution . . . . . . . . . 49
Appendix 2. Instances Not Formally Reported to the Congress Under the War
Powers Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
The War Powers Resolution:
After Twenty-Five Years
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 more than 25 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 mid-September 1999, 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.
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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.
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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
U.S. Congress. H.Rept. 93-287, p. 6.
1
U.S. Congress. H.Rept. 93-287, p. 7.
2
U.S. Congress. H.Rept. 93-287, p. 7.
3
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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
U.S. Congress. H.Rept. 93-287, p. 8.
4
U.S. Congress. H.Rept. 93-547, p. 8.
5
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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.
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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 to justify hostilities abroad. This resolution
6
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
P.L. 88-408, approved August 10, 1964; repealed in 1971 by P.L. 91-672.
6
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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. He argued that the legislative veto provision, permitting Congress t
8
o
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
U.S. Congress. S.Rept. 93-220, p. 24.
7
8United States. President (Nixon). Message vetoing House Joint Resolution 542, A Joint
Resolution Concerning the War Powers of Congress and the President. October 24, 1973.
H.Doc. 93-171.
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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
9U.S. Congress. House. Committee on International Relations. War Powers: A Test of
Compliance relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation of
Saigon, and the Mayaguez Incident. Hearings, May 7 and June 4, 1975. Washington, U.S.
Govt. Printing Off., 1975. p. 69.
462 U.S. 919 (1983).
10
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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. A concurrent resolution is adopted by both chambers, but it
13
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, except that it would
16
be amendable and debate on a veto limited to 20 hours.17 The priority procedures
Federal Trade Commission Improvements Act of 1980.
11
Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).
12
1 Celada,
3
Raymond. J. Effect of the Legislative Veto Decision on the Two-House
Disapproval Mechanism to Terminate U.S. Involvement in Hostilities Pursuant to Unilateral
Presidential Action. CRS Report, August 24, 1983.
G
14
ressman, Prof. Eugene. In U.S. Congress. House. Committee on Foreign Affairs. The
U.S. Supreme Court Decision Concerning the Legislative Veto. Hearings, July 19, 20, and
21, 1983. 98 Congress, 1
th
st sess. Washington, U.S. GPO, 1983, p. 155-157. Buchanan, G.
Sidney. In Defense of the War Powers Resolution: Chadha Does Not Apply. Houston Law
Review, Vol. 22, p. 1155; Ely, John Hart. Suppose Congress Wanted a War Powers Act that
Worked. Columbia Law Review, Vol. 88, p. 1379 (see p. 1395-1398).
15U.S. Congress. House. Committee on Foreign Affairs. U.S. Supreme Court Decision
Concerning the Legislative Veto, Hearings, p. 52.
P.L. 94-329, signed June 30, 1976.
16
Sen
17
ate amendment to S. 1324. Section 1013, State Department Authorization Act for FY
1984, P.L. 98-164, approved November 22, 1983. Codified at 50 U.S.C. , sect.1546a (1994).
CRS-10
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.
H.Rept.
18
103-329, November 5, 1993, p. 2. See below for further discussion of the Somalia
case.
The
19
Senate bill had a time limit of 30 days. U.S. Congress. Senate. Committee on Foreign
Relations. War Powers. Report to accompany S. 440. S.Rept. 93-220, 93d Congress, 1st
Session. p. 28.
CRS-11
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?” I
20
n
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. In
regard to Lebanon in 1983, Congress found it could invoke the War Powers
Resolution, but in the 1987-1988 Persian Gulf tanker war Congress proved reluctant
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
Sofaer,
20
Abraham D. Prepared statement in: U.S. Congress. Senate. Committee on Foreign
Relations. The War Power After 200 Years: Congress and the President at a Constitutional
Impasse. Hearings before the Special Subcommittee on War Powers. July 13-September 29,
1988. S.Hrng. 100-1012. p. 1059.
21Appendix 1 lists in chronological order all instances reported to this date of publication
under the War Powers Resolution. Appendix 2 lists representative instances of the
deployment to or use of armed forces in potentially hostile situations which were not reported
under the Resolution.
CRS-12
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.
22U.S. Congress. House. Committee on International Relations. War Powers: A Test of
Compliance Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation
of Saigon, and the Mayaguez Incident. Hearings, May 7 and June 4, 1975. Washington, U.S.
Govt. Print. Off., 1975. P. 3.
U.S.
23
Congress. Senate. Committee on Foreign Relations. The situation in Iran. Hearing,
96th Congress, 2 session. May 8, 1980. Washington, U.S. Govt. Print. Off., 1980. P. iii.
nd
CRS-13
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. They would, it was maintained
24
,
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. Othe
27
r
Congressional Record, March 5, 1981, V. 127, p. 3743.
24
Crockett v. Reagan
25
, 558 F. Supp. 893 (D.D.C. 1982).
720 F. 2d 1355 (D.C.Cir. 1983), cert. denied, 467 U.S. 1251 (1984).
26
On
27
March 8, 1982, Senator Robert Byrd introduced the War Powers Resolution Amendment
of 1982 (S. 2179) specifically providing that U.S. armed forces shall not be introduced into
El Salvador for combat unless (1) the Congress has declared war or specifically authorized
(continued...)
CRS-14
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.” On July 26,
29
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
(...continued)
27
such use; or (2) such introduction was necessary to meet a clear and present danger of attack
on the United States or to provide immediate evacuation of U.S. citizens. Similar bills were
introduced in the House, e.g. H. R. 1619 and H. R. 1777 in the 98th Congress.
H.Con.Res. 87, 97
28
th Congress.
Report on S.J.Res. 158, Sec. III, S.Rept. 97-470, June 9, 1982.
29
Congressional Record
30
, House, July 26, 1983, pp. 20924-20925.
CRS-15
military exchange between Nicaragua or Honduras. Variations of this amendment
31
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. In 1986, after U.S. he
32
licopters 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. Gradually the issue died with peace
33
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 3 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
The
31
initial statutory restriction was contained in the Continuing Appropriations Resolution
for 1983, P.L. 97-377. This was followed by a $24 million ceiling on intelligence agency
support in fiscal year 1984.
Sec.
32
1451 of P.L.99-145, approved Nov. 8, 1985. A similar provision was contained in the
defense authorization for 1988-1989, sec.1405 of P.L.100-180, approved Dec. 4, 1987.
Con
33
tinuing Appropriations Resolution, P. L. 99-591, approved Oct. 30, 1986. Continued
in P.L. 100-202, approved Dec. 22, 1987.
P.L. 98-119, approved Oct. 12, 1983.
34
CRS-16
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.
P.L. 98-43, approved June 27, 1983.
35
CRS-17
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 and serious violations of life had occurred, 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. Thus
37
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
Public Law 98-119, signed October 12, 1983.
36
37U.S. Congress. H. Report 98-566 on H. J. Res. 308; Senate amendment numbered 3.
Congressional Record November 17, 1983, p. H10189.
CRS-18
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. An appellate court subsequently held that the issue was moot because th
38
e
invasion had been ended.
39
Libya: Should Congress Help Decide on Raids 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. Others called for strength
40
ening the President’s hand
Conyers v. Reagan
38
, 578 F. Supp. 323 (D.D.C. 1984).
Conyers v. Reagan
39
, 765 F.2d 1124 (D.C. Cir. 1985).
S.J.Res.
40
340, introduced May 8, 1986. The bill was not acted upon, but the proposal was
(continued...)
CRS-19
in combatting 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. None of the reports were submitted under sectio
42
n
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
(...continued)
40
later incorporated in other proposed amendments. See below, section on amendments.
S.
41
2335 and H.R. 4611, Anti-Terrorism Act of 1986, introduced April 17, 1986. Not acted
upon.
For the reports, see list above under section on reporting requirements.
42
Questions
43
submitted to Department of State and responses thereto, March 30, 1988, in War
(continued...)
CRS-20
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. The decisive votes on the subject took place in the Senate. On
44
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. The House did not take action on the bill.
45
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.”4 This was too late for congressional views to be
7
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
(...continued)
43
Powers Resolution, Relevant Documents, Correspondence, Reports, p. 97-99.
Bills
44
to this effect in the House included H.J.Res. 387, introduced October 22, 1987, which
also authorized the continued presence of U.S. forces in the Gulf.
Byrd-Warner amendment to S.J.Res. 194, adopted by Senate Oct. 21, 1987.
45
46Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987). See also Celada, Raymond J., and
David M. Ackerman. War Powers Resolution: The Controversial Act’s Search for a
Successful Litigation Posture. CRS Report for Congress 93-1065 ALD, December 20, 1993.
4 Weinberger,
7
Caspar W. Secretary of Defense. A Report to the Congress on Security
Arrangements in the Persian Gulf. June 15, 1987, p.14.
CRS-21
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. Still
48
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. The Senate had adopted an amendmen
49
t
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
When asked about abiding by the War Powers Resolution, President Reagan said “we are
48
complying with a part of that act, although we do not call it that. But we have been consulting
the Congress, reporting to them and telling them what we’re doing, and in advance...” Press
conference of October 22,1987. The New York Times, October 23, 1987, p. A8.
P.L. 101-162, signed November 21, 1989.
49
CRS-22
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
Amendments to National Drug Control Strategy bill, S. 1711, October 5, 1989.
50
51In that case, the Soviet Union had absented itself from the Council temporarily, and the
Security Council requested members to supply the Republic of Korea with sufficient military
assistance to repel the invasion of North Korea. President Truman ordered U.S. air, naval,
and ground forces to Korea to repel the attack without authorization from Congress. Senator
Robert Taft complained on January 5, 1951, “The President simply usurped authority in
violation of the laws and the Constitution, when he sent troops to Korea to carry out the
resolution of the United Nations in an undeclared war.”
CRS-23
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. One purpose of this
52
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.
52Such a statement was made in the Authorization for Use of Military Force against Iraq
Resolution, P.L. 102-1, signed January 14, 1991, and in S.J. Res. 45, authorizing the use of
force in Somalia for one year, as passed by the Senate on February 4, 1993, and amended by
the House on May 25, 1993; a conference was not held.
53U.S. Congress. Senate. Committee on Foreign Relations. War Powers; report to
accompany S. 440. June 14, 1973. S.Rept. 93-220.
Sec.8153,
54
Department of Defense Appropriation Act for FY1994, H.R. 3116, P.L. 103-139,
signed November 11, 1993.
CRS-24
Participation Act. In 1994 and 1995, Congress attempted to gain a greater role in
55
U.N. and other peacekeeping operations through authorization and appropriation
legislation. A major element of the House Republican’s 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.
Sec.
55
1502 (11), Defense Authorization Act for FY1994, P.L. 103-160, signed November 30,
1993.
56For background see Multinational Peacekeeping Operations: Proposals to Enhance
Congressional Oversight, Archived CRS Issue Brief 95006.
CRS-25
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
On
57
August 17, 1990, Acting Secretary of State Robert M. Kimmitt sent a formal letter to
Congress (not mentioning the War Powers Resolution) stating, “It is not our intention or
expectation that the use of force will be required to carry out these operations. However, if
other means of enforcement fail, necessary and proportionate force will be employed to deny
passage to ships that are in violation of these sanctions.”
CRS-26
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. However, throughout
58
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
Congress Authorizes the War. 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
Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
58
Statement
59
by Secretary of Defense Richard Cheney. U.S. Congress. Senate. Committee
on Armed Services. Crisis in the Persian Gulf Region: U.S. Policy Options and Implications.
Sept. 11-December 3, 1990, S.Hrg. 101-1071, pp. 701-2.
CRS-27
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). Section 2(a) authorized the President
61
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.
Weekly
60
Compilation of Presidential Documents. January 14, 1991. Vol. 27, No. 2, pp.17-
18; pp. 24-25.
The
61
House passed H.J.Res. 77 by a vote of 250 to 183. The Senate passed S.J.Res. 2 and
then considered H.J.Res. 77 as passed. The Senate vote was 52 to 47. The bill became P.L.
102-1, signed January 14, 1991. On January 12, to emphasize the congressional power to
declare war, the House also adopted by a vote of 302 to 131 H.Con.Res. 32 expressing the
sense that Congress must approve any offensive military actions against Iraq; the Senate did
not act on the measure.
Weekly
62
Compilation of Presidential Documents. January 21, 1991. Vol. 27, No. 3, pp.48-
49. Subsequently, on June 20,1992, during remarks to the Texas State Republican Convention
in Dallas, Texas, President Bush said: “Some people say, why can’t you bring the same kind
of purpose and success to the domestic scene as you did in Desert Shield and Desert Storm?
And the answer is: I didn’t have to get permission from some old goat in the United States
Congress to kick Saddam Hussein out of Kuwait. That’s the reason.” Weekly Compilation
of Presidential Documents. June 29, 1992. Vol. 28, No. 26, pp.1120-1121.
CRS-28
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.”
Post-war Iraq: 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, raising the issue of how long a congressional
authorization lasts for the use of force.
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
CRS-29
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
CRS-30
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, in late 1998, and continuing throughout 1999, the United States
conducted a large number of 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. Congress authorization to continue these activities was not sought
by the President, nor were these many incidents reported under the War Powers
Resolution.
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.
CRS-31
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.
Section 1512, P.L. 103-160, signed November 30, 1993.
63
CRS-32
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. The Senate
65
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 in
Somalia. However, none of these resolutions explicitly authorized U.S. military
action.
Sec. 8151 of P.L. 103-139, signed November 11, 1993.
64
For additional discussion of H.Con.Res. 170, see section on Legislative Veto, above.
65
CRS-33
Former Yugoslavia/Bosnia/Kosovo: What If No Consensus Exists?
Bosnia. The issue of war powers and U.S. participation in United Nations
actions was also raised by efforts to halt fighting in the territory of former Yugoslavia,
initially in Bosnia. 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 nations to take “all measures necessary” to facilitate the delivery of humanitarian
assistance to Sarajevo. Many in Congress had been advocating more assistance to the
victims of the conflict. On August 11, 1992, the Senate had passed S.Res. 330 urging
the President to work for a U.N. Security Council resolution such as was adopted, 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.
During 1993 the United States participated in airlifts into Sarajevo, naval
monitoring of sanctions, and aerial enforcement of a “no-fly zone.” On February 10,
1993, Secretary of State Warren Christopher announced that under President Clinton,
the United States would try to convince the Serbs, Muslims, and Croats to pursue a
diplomatic solution and that if an agreement was reached, U.S. forces, including
ground forces, would help enforce the peace. On February 28, 1993, the United
States began an airdrop of relief supplies aimed at civilian populations, mainly
Muslims, surrounded by fighting 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, the “no-fly
zone”. NATO planes, including U.S. planes, began patrolling over Bosnia and
Herzegovina on April 12, 1993, to enforce the Security Council ban, and the next day,
President Clinton reported the U.S. participation “consistent with Section 4 of the
War Powers Resolution.”
Conflict continued, but the situation was complicated and opinion in Congress
and among U.N. and NATO members was divided. President Clinton consulted with
about two dozen congressional leaders on potential further action on April 27 and
received a wide range of views. On May 2, the Administration began consultation
with allies to build support for additional military action to enforce a cease-fire and
CRS-34
Bosnian Serb compliance with a peace agreement, but a consensus on action was not
reached.
On June 10, 1993, Secretary of State Christopher announced the United States
would send 300 U.S. troops to join 700 Scandinavians in the U.N. peacekeeping force
in Macedonia. The mission was established under U
66
.N. Security Council Resolution
795 (1992), which sought to prevent the war in Bosnia from spilling over to
neighboring countries. President Clinton reported this action “consistent with Section
4 of the War Powers Resolution” on July 9, 1993. He identified U.S. troops as part
of a peacekeeping force, and directed in accordance with Section 7 of the U.N.
Participation Act.
Planning for U.N. and NATO action to implement a prospective peace
agreement included the possibility that the United States might supply 25,000 out of
50,000 NATO forces to enforce U.N. decisions. This possibility brought proposals
to require congressional approval before the dispatch of further forces to Bosnia. On
September 23, 1993, 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. Assistant Secretary of State
Stephen Oxman said on October 5 that the Clinton Administration would consult with
Congress and not commit American troops to the implementation operation for a
peace agreement without congressional support, and that the Administration would
act consistent with the War Powers Resolution. Congress sought to assure this in
Section 8146 of P.L. 103-139, the Defense Appropriation Act for FY 1994, 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. This provision was sponsored by the Senate by
leaders Mitchell and Dole.
At the NATO summit conference in Brussels on January 11, 1994, 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 United Nations 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 the previous day 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
The
66
name of this area is in dispute. The provisional name, which is used for its designation
as a member of the United Nations, is “The Former Yugoslav Republic of Macedonia.” This
report uses the term “Macedonia” without prejudice.
CRS-35
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, leaders in Congress called for greater
congressional involvement in decisions. Senator Dole introduced S. 2042, calling for
the United States to end unilaterally its arms embargo, conducted in accordance with
a U.N. Security Council Resolution, against Bosnia and Herzegovina. On May 10,
1994, Senate Majority Leader George 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 proposal, as an amendment, and the Mitchell amendment on May 12,
1994, by votes of 50-49. The less stringent Mitchell amendment passed on a straight
party line vote. Yet thirteen Democrats voted for the Dole amendment, indicating a
sentiment in both parties to assist the Bosnians in defending themselves. 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, the sense of the Congress 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 those 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 of the Congress that funds made available by this law 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.
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 were still 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.
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, Gorazde and Mostar.”
CRS-36
On September 7, 1995 the House passed an amendment to the FY1996
Department of Defense Appropriations Bill (H.R. 2126), offered by Representative
Mark Neumann (R-WI.) that prohibited the obligation or expenditure of funds
provided by the bill for any operations beyond those already undertaken. However,
in conference the provision was softened to a sense-of-the-Congress provision that
said that President must consult with Congress before deploying U.S. forces to
Bosnia. The conference report was rejected by the House over issues unrelated to
Bosnia on September 29, 1995 by a vote of 151-267. The substitute conference
report on H.R. 2126, which was subsequently passed and signed into law, did not
include language on Bosnia, in part due to the President’s earlier objections to any
provision in the bill that might impinge on his powers as Commander-in-Chief. On
September 29, the Senate passed by a vote of 94-2 a sense-of-the-Senate amendment
to H.R. 2076, the FY1996 State, Commerce, Justice Appropriations bill, sponsored
by Senator Judd Gregg (R-N.H.) that said no funds in the bill should be used for the
deployment of U.S. combat troops to Bosnia-Herzegovina unless Congress approves
the deployment in advance or to evacuate endangered U.N. peacekeepers. The
conference report on H.R. 2076, agreed to by the House and the Senate, included the
“sense of the Senate” language of the Gregg amendment.
In response to mounting criticism of the Administration’s approach to Bosnian
policy, on October 17-18, 1995, Secretary of State Christopher, Secretary of Defense
Perry and Joint Chiefs of Staff Chairman, Shalikashvili testified before House and
Senate Committees on Bosnia policy and the prospect of President Clinton deploying
approximately 20,000 American ground forces as part of a NATO peacekeeping
operation. During testimony before the Senate Foreign Relations Committee on
October 17, Secretary Christopher stated that the President would not be bound by
a resolution of the Congress prohibiting sending of U.S. forces into Bosnia without
the express prior approval of Congress. Nevertheless, on October 19, 1995, President
Clinton in a letter to Senator Robert C. Byrd stated that “[w]hile maintaining the
constitutional authorities of the Presidency, I would welcome, encourage and, at the
appropriate time, request an expression of support by the Congress” for the
commitment of U.S. troops to a NATO implementation force in Bosnia, after a peace
agreement is reached.
Subsequently, on October 30, 1995, the House, by a vote of 315-103, passed
H.Res. 247, expressing the sense of the House that “no United States Armed forces
should be deployed on the ground in the territory of the Republic of Bosnia and
Herzegovina to enforce a peace agreement until the Congress has approved such a
deployment.” On November 13, President Clinton’s 9-page letter to Speaker
Gingrich stated he would send a request “for a congressional expression of support
for U.S. participation in a NATO-led Implementation Force in Bosnia ... before
American forces are deployed in Bosnia.” The President said there would be a
“timely opportunity for Congress to consider and act upon” his request for support.
He added that despite his desire for congressional support, he “must reserve” his
“constitutional prerogatives in this area.” On November 17, 1995, the House passed
(243-171) H.R. 2606, which would “prohibit the use of funds appropriated or
otherwise available” to the Defense Department from “being used for the deployment
on the ground of United States Armed Forces in the Republic of Bosnia-Herzegovina
as part of any peacekeeping operation or as part of any implementation force, unless
funds for such deployment are specifically appropriated” by law.
CRS-37
On December 4, 1995, Secretary of Defense Perry announced the deployment
of about 1,400 U.S. military personnel (700 to Bosnia/700 to Croatia) as part of the
advance elements of the roughly 60,000 person NATO Implementation Force in
Bosnia, scheduled to deploy in force once the Dayton Peace Agreement is signed in
Paris on December 14, 1995. Secretary Perry noted that once the NATO I-Force was
fully deployed, about 20,000 U.S. military personnel would be in Bosnia, and about
5,000 in Croatia.
On December 6, 1995, President Clinton notified the 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.
In response to these developments, Congress addressed the question of U.S.
ground troop deployments in Bosnia. Lawmakers sought to take action before the
final Bosnian peace agreement was signed in Paris on December 14, 1995, following
which the bulk of American military forces would be deployed to Bosnia. On
December 13, 1995, the House considered H.R. 2770, sponsored by Representative
Dornan, which would have prohibited the use of Federal funds for the deployment “on
the ground” of U.S. Armed Forces in Bosnia-Herzegovina “as part of any
peacekeeping operation, or as part of any implementation force.” H.R. 2770 was
defeated in the House by a vote of 210-218. On December 13, the House considered
two other measures. It approved H.Res. 302, offered by Representative Buyer, by a
vote of 287-141. H.Res. 302, a non-binding measure, reiterated “serious concerns and
opposition” to the deployment of U.S. ground troops to Bosnia, while expressing
confidence, “pride and admiration” for U.S. soldiers deployed there. It called on the
President and Defense Secretary to rely on the judgement of U.S. ground commander
in Bosnia and stated that he should be provided with sufficient resources to ensure the
safety and well-being of U.S. troops. H.Res. 302, further stated that the U.S.
government should “in all respects” be “impartial and evenhanded” with all parties to
the Bosnian conflict “as necessary to ensure the safety and protection” of American
forces in the region.
Subsequently, the House defeated H.Res 306, proposed by Representative
Hamilton, by a vote of 190-237. H.Res 306 stated that the House “unequivocally
supports the men and women of the United States Armed Forces who are carrying out
their mission in support of peace in Bosnia and Herzegovina with professional
excellence, dedicated patriotism and exemplary bravery.”
On December 13, the Senate also considered three measures related to Bosnia
and U.S. troop deployments. The Senate defeated H.R. 2606 by a vote of 22-77. This
bill would have prohibited funds to be obligated or expended for U.S. participation
in peacekeeping in Bosnia unless such funds were specifically appropriated for that
purpose. The Senate also defeated S. Con. Res. 35, a non-binding resolution of
Senators Hutchison and Inhofe. This resolution stated that “Congress opposes
CRS-38
President Clinton’s decision to deploy” U.S. troops to Bosnia, but noted that
“Congress strongly supports” the U.S. troops sent by the President to Bosnia.
The Senate did pass S.J.Res. 44, sponsored by Senators Dole and McCain, by
a vote of 69-30. This resolution stated that Congress “unequivocally supports the men
and women of our Armed Forces” who were to be deployed to Bosnia. S.J. Res. 44
stated that “notwithstanding reservations expressed about President Clinton’s
decision” to deploy U.S. forces, “the President may only fulfill his commitment” to
deploy them to Bosnia “for approximately one year” if he made a determination to
Congress that the mission of the NATO peace implementation force (IFOR) will be
limited to implementing the military annex to the Bosnian peace agreement and to
protecting itself. The Presidential determination must also state that the United States
will “lead an immediate international effort,” separate from IFOR, “to provide
equipment, arms, training and related logistics assistance of the highest possible
quality” to the Muslim-Croat Federation so that it may provide for its own defense.
The President could use “existing military drawdown authorities and requesting such
additional authority as may be necessary.” S.J. Res. 44 also required President Clinton
to submit to Congress a detailed report on the armament effort within 30 days, and
required regular Presidential reports to Congress on the implementation of both the
military and non-military aspects of the peace accords.
The House and Senate did not appoint and direct conferees to meet to reconcile
the conflicting elements of the Bosnia related measures each had passed on December
13, 1995. A number of Members and Senators had wished to express their views on
the troop deployment before the Dayton Accords were formally signed in Paris. That
action had occurred, and the leadership of both parties apparently believed nothing
further would be achieved by a conference on the measures passed. As result, no final
consensus on a single specific measure was reached on the issue by the two chambers.
The President meanwhile continued with the Bosnian deployment. 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.”
67 Subsequently, President Clinton in December 1996, agreed to provide
up to 8,500 ground troops to participate in a NATO-led follow-on force in Bosnia
termed the Stabilization Force (SFOR). On March 18, 1998, the House defeated by
a vote of 193-225, H.Con.Res. 227, a resolution of Rep. Tom Campbell, directing the
President, pursuant to section 5(c) of the War Powers Resolution to remove United
For
67
additional background see Bosnia-Former Yugoslavia: Ongoing Conflict and U.S.
Policy, Archived CRS Issue Brief 91089.
CRS-39
States Armed Forces from the Republic of Bosnia and Herzegovina.(H.Rept. 105-
442).68
Kosovo. The issue of Presidential authority to deploy forces in the absence of
congressional authorization, under the War Powers Resolution, or otherwise, became
an issue of renewed controversy in late March 1999 when President Clinton ordered
U.S. military forces to participate in a NATO-led military operation in Kosovo. This
action has become the focus of an on-going policy debate over the purpose and scope
of U.S. military involvement in Kosovo. The President’s action to commit forces to
the NATO Kosovo operation also led to a suit in Federal District Court for the
District of Columbia by Members of Congress seeking a judicial finding that the
President was violating the War Powers Resolution and the Constitution by using
military forces in Yugoslavia in the absence of authorization from the Congress.
The Kosovo controversy began in earnest when on March 26, 1999, President
Clinton notified the Congress “consistent with the War Powers Resolution”, that on
March 24, 1999, U.S. military forces, at his direction and in coalition with NATO
allies, had commenced air strikes against Yugoslavia in response to the Yugoslav
government’s campaign of violence and repression against the ethnic Albanian
population in Kosovo. Prior to the President’s action, the Senate, on March 23, 1999,
had passed, by a vote of 58-41, S.Con.Res. 21, a non-binding resolution expressing
the sense of the Congress that the President was authorized to conduct “military air
operations and missile strikes in cooperation with our NATO allies against the Federal
Republic of Yugoslavia (Serbia and Montenegro).”
Subsequently, the House voted on a number of measures relating to U.S.
participation in the NATO operation in Kosovo. On April 28, 1999, the House of
Representatives passed H.R. 1569, by a vote of 249-180. This bill would prohibit the
use of funds appropriated to the Defense Department from being used for the
deployment of “ground elements” of the U.S. Armed Forces in the Federal Republic
of Yugoslavia unless that deployment is specifically authorized by law. On that same
day the House defeated H.Con.Res. 82, by a vote of 139-290. This resolution would
have directed the President, pursuant to section 5(c) of the War Powers Resolution,
to remove U.S. Armed Forces from their positions in connection with the present
operations against the Federal Republic of Yugoslavia. On April 28, 1999, the House
also defeated H.J.Res. 44, by a vote of 2-427. This joint resolution would have
declared a state of war between the United States and the “Government of the Federal
Republic of Yugoslavia.” The House on that same day also defeated, on a 213-213
tie vote, S.Con.Res. 21, the Senate resolution passed on March 23, 1999, that
supported military air operations and missile strikes against Yugoslavia. On April 30,
1999, Representative Tom Campbell and 17 other members of the House filed suit in
Federal District Court for the District of Columbia seeking a ruling requiring the
President to obtain authorization from Congress before continuing the air war, or
taking other military action against Yugoslavia (Civil Action No. 99-1072).
For
68
additional background see Archived CRS Issue Brief 91089 Bosnia-Former Yugoslavia:
Ongoing Conflict and U.S. Policy and CRS Issue Brief 93056 Bosnia, U.S. Military
Operations.
CRS-40
The Senate, on May 4, 1999, by a vote of 78-22, tabled S.J.Res. 20, a joint
resolution, sponsored by Senator John McCain, that would authorize the President
“to use all necessary force and other means, in concert with United States allies, to
accomplish United States and North Atlantic Treaty Organization objectives in the
Federal Republic of Yugoslavia (Serbia and Montenegro).” The House, meanwhile,
69
on May 6, 1999, by a vote of 117-301, defeated an amendment by Representative
Ernest Istook to H.R. 1664, the FY1999 defense supplemental appropriations bill,
that would have prohibited the expenditure of funds in the bill to implement any plan
to use U.S. ground forces to invade Yugoslavia, except in time of war. Congress,
meanwhile, on May 20, 1999 cleared for the President’s signature, H.R. 1141, an
emergency supplemental appropriations bill for FY1999, that provided billions in
funding for the existing U.S. Kosovo operation.
The Senate tabled two other amendments that would have restricted military
operations by President Clinton in Kosovo. On May 24, 1999, it tabled, by a vote of
52-48, an amendment offered by Senator Arlen Specter to state that no funds
available to the Defense Department may be obligated or expended for the
deployment of U.S. ground troops to Yugoslavia unless authorized by a declaration
of war or a joint resolution authorizing the use of military force. The Specter
amendment did not apply to certain actions, such as rescuing U.S. military personnel
or citizens. On May 26, 1999
70
the Senate tabled an amendment, by a vote of 77-21,
offered by Senator Bob Smith to prohibit, effective October 1, 1999, the use of funds
for military operations in Yugoslavia unless Congress enacted specific authorization
in law for the conduct of these operations.71
On May 25, 1999, the 60 day
th
had passed since the President notified Congress
of his actions regarding U.S. participation in military operations in Kosovo.
Representative Campbell, and those who joined his suit, noted to the Federal Court
that this was a clear violation of the language of the War Powers Resolution
stipulating a withdrawal of U.S. forces from the area of hostilities after 60 days in the
absence of congressional authorization to continue, or a Presidential request to
Congress for an extra 30 day period to safely withdraw. The President did not seek
such a 30 day extension, noting instead his view that the War Powers Resolution is
constitutionally defective.
On June 8, 1999, Federal District Judge Paul L. Friedman dismissed the suit of
Rep. Campbell and others that sought to have the court rule that President Clinton
was in violation of the War Powers Resolution and the Constitution by conducting
military activities in Yugoslavia without having received prior authorization from
Congress. The judge ruled that Representative Campbell and the other Congressional
plaintiffs lacked legal standing to bring the suit. Representative Campbell appealed
The
69
McCain joint resolution (S.J. Res. 20) authorizing Presidential action in Yugoslavia was
forced to the Senate floor by the Senator’s use of the expedited procedures set out in section
6 of the War Powers Resolution for consideration of such resolutions. See debate and
discussion in U.S. Congressional Record, Senate, May 3, 1999, pp. S4514-S4572; and May
4, 1999, pp. S4611-S4616 [daily edition].
U.S. Congressional Record, Senate, May 24, 1999, pp. S5809-S5840 [daily edition].
70
U.S. Congressional Record, Senate, May 26, 1999, pp. S6034-S6040 [daily edition].
71
CRS-41
the ruling. Meanwhile, by
72
June 10, 1999, Yugoslavia agreed to NATO conditions
for a cease-fire and withdrawal of Yugoslav military and paramilitary personnel from
Kosovo, and the creation of a peacekeeping force (KFOR) which had the sanction of
the United Nations.
Further, on June 10, 1999, the House of Representatives defeated, by a vote of
328-97, an amendment to H.R. 1401, the National Defense Authorization Act for
FY2000-FY2001, that would have prohibited the use of any Defense Department
funding in FY2000 for “military operations in the Federal Republic of Yugoslavia.”
On that same day, the House approved, by a vote of 270-155, an amendment that
deleted, from the House reported version of H.R. 1401, language that would have
prohibited any funding for “combat or peacekeeping operations” in the Federal
Republic of Yugoslavia.
On June 12, 1999, President Clinton announced and reported to Congress
“consistent with the War Powers Resolution” that he had directed the deployment of
about “7,000 U.S. military personnel as the U.S. contribution to the approximately
50,000-member, NATO-led security force (KFOR)” currently being assembled in
Kosovo. He also noted that about “1,500 U.S. military personnel, under separate
U.S. command and control, will deploy to other countries in the region, as our
national support element, in support of KFOR.” Thus, by the summer of 1999, the
President had been able to proceed with his policy of intervention in the Kosovo crisis
under the aegis of NATO, the Congress had not achieved any position of consensus
on what actions were appropriate in Yugoslavia, and a U.S. District Court had
dismissed a Congressional lawsuit attempting to stop Presidential military action in
Yugoslavia in the absence of prior congressional authorization under the War Powers
Resolution. (For detailed discussion of major issues see Kosovo and U.S. Policy, CRS
Issue Brief 98041, Kosovo-U.S. and Allied Military Operations, CRS Issue Brief
IB10027).
Haiti: Can the President Order Enforcement of a U.N. Embargo?
On July 3, 1993, Haitian military leader Raoul Cedras and deposed President
Jean-Bertrand Aristide signed an agreement 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. When additional U.S. forces
arrived on October 11, a group of armed civilians appeared intent upon resisting their
landing, and on October 12 defense officials ordered the ship carrying them, the
U.S.S. Harlan County, to leave Haitian waters.
Th
72
e June 8, 1999 decision of Judge Friedman of the U.S. District Court for the District of
Columbia is cited at 52 F. Supp. 2d 34 (1999). The case Campbell v. Clinton (Civil Action
No. 99-1072) was appealed by Rep. Campbell on June 16, 1999 to the U.S. Court of Appeals
for the District of Columbia Circuit (appeal No. 99-5214). The Appeals Court accepted the
appeal on an expedited basis, and set oral argument for October 22, 1999 before Judges
Silberman, Randolph and Tatel.
CRS-42
Because the Haitian authorities were not complying with the agreement, on
October 13 the U.N. Security Council voted to restore sanctions against Haiti. On
October 20, President Clinton reported “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, 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
of Congress 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 of
the United States and there was not sufficient time to receive congressional
authorization, or (4) the President reported 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 this option appeared more certain. Many Members
continued to contend congressional authorization was necessary for any invasion of
Haiti. On May 24, 1994, the House adopted the Goss amendment to the Defense
Authorization bill (H.R. 4301) by a vote of 223-201. 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. Subsequently,
on June 9 the House voted on the Goss amendment again. This time the House
reversed itself and rejected the amendment by a vote of 195-226. 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 31 to 63 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
CRS-43
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. The amendment,
however, was rejected 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 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, beginning September 19, from the 15,000 member international coalition. 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 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
CRS-44
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 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.73
Proposed Amendments
After more than 25 years of actual experience with it, controversy continues over
the War Powers Resolution’s effectiveness and appropriateness as a system for
maintaining a congressional role in the use of armed forces in conflict. One view is
that the War Powers Resolution is basically sound and does not need amendment.74
Those who hold this opinion believe it has brought about better communication
between the two branches in times of crisis, and has given Congress a vehicle by
which it can act when a majority of Members wish to do so. The Resolution served
as a restraint on the use of armed forces by the President in some cases because of
awareness that certain actions might invoke its provisions. For example, the threat
of invoking the War Powers Resolution may have been helpful in getting U.S. forces
out of Grenada, in keeping the number of military advisers in El Salvador limited to
55, and in prodding Congress to take a stand on authorizing the war against Iraq.
A contrary view is that the War Powers Resolution is an inappropriate
instrument that restricts the President’s effectiveness in foreign policy and should be
repealed. Those with this perspective believe that the basic premise of the Wa
75
r
73For further information on Haiti, see Haiti Under President Preval: Issues for Congress,
CRS Issue Brief 96019.
Fascell,
74
Representative Dante B. Testimony. U.S. Congress. Senate. Committee on Foreign
Relations. The War Powers after 200 years: Congress and the President at Constitutional
Impasse. Hearings, July 13 - September 29, 1988. P. 11.
Examples
75
of bills to repeal the War Powers Resolution include S.2030 introduced by
Senator Barry Goldwater on October 31, 1983, H.R. 2525, introduced by Representative
Robert Dornan on May 27, 1987 and S.5, introduced by Senator Robert Dole on January 4,
(continued...)
CRS-45
Powers Resolution is wrong because in it, Congress attempts excessive control of the
deployment of U.S. military forces, encroaching on the responsibility of the
President.76 Supporters of repeal 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 holding this view contend that
Congress has always had the power, through appropriations and general lawmaking,
to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there
is majority support. The War Powers Resolution does not fundamentally change this
equation, it is argued, but it complicates action, misleads military opponents, and
diverts attention from key policy questions.
A third view is that the War Powers Resolution has not been adequate to
accomplish its objectives and needs to be strengthened or reshaped. Proponents of
77
this view assert that Presidents have continued to introduce U.S. armed forces into
hostilities without consulting Congress and without congressional authorization.
Presidents have cited section 4(a)(1) on only one occasion — Mayaguez — and by
the time the action was reported, it was virtually over. The provision permitting
Congress to withdraw troops by concurrent resolution is under a cloud because of the
Chadha decision.
Holders of this third view have proposed various types of amendments to the
War Powers Resolution. These include returning to the version originally passed by
the Senate, establishing a congressional consultation group, adding a cutoff of funds,
and providing for judicial review. A general discussion of these categories of possible
changes follows.
Return to Senate Version: Enumerating Exceptions for Emergency
Use
In 1977, Senator Thomas Eagleton proposed that the War Powers Resolution
return to the original language of the version passed by the Senate, and this proposal
has been made several times since. This would require prior congressional
authorization for the introduction of forces into conflict abroad without a declaration
of war except to respond to or forestall an armed attack against the United States or
its forces or to protect U.S. citizens while evacuating them. The amendment would
eliminate the construction that the President has 60 to 90 days in which he can
militarily act without authorization. Opponents fear the exceptions to forestall attacks
or rescue American citizens abroad would serve as a blanket authorization and might
(...continued)
75
1995. See also the most recent major legislative floor debate on repeal of the War Powers
Resolution, held on June 7, 1995. This debate centered on an amendment to H.R. 1561,
offered by Representative Henry Hyde, which would have repealed most of the key elements
of the War Powers Resolution. The amendment was defeated by a vote of 217-201.
Congressional Record, June 7, 1995, pp. H5655-H5674[daily edition].
Congressional Record, July 12, 1983, p. S9670.
76
A
77
broad-gauged proposal reflective of this view is S. 564, Use of Force Act, introduced by
Senator Biden on March 15, 1995.
CRS-46
be abused, yet might not allow the needed speed of action and provide adequate
flexibility in other circumstances.
Shorten or Eliminate Time Limitation
Another proposal is to shorten the time period that the President could maintain
forces in hostile situations abroad without congressional authorization from 60 to 30
days, or eliminate it altogether. Some proponents of this amendment contend the
current War Powers Resolution gives the President 60 to 90 days to do as he chooses
and that this provides too much opportunity for mischief or irreversible action. The
original Senate version provided that the use of armed forces in hostilities or imminent
hostilities in any of the emergency situations could not be sustained beyond 30 days
without specific congressional authorization, extendable by the President upon
certification of necessity for safe disengagement. Opponents of this and related
measures argue that they induce military opponents to adopt strategies to win given
conflicts in Congress that they could not win in the field over time.
Replace Automatic Withdrawal Requirement
The War Powers Resolution has an automatic requirement for withdrawal of
troops 60 days after the President submits a section 4(a)(1) report. Some Members
of Congress favor replacing this provision with expedited procedures for a joint
resolution to authorize the action or require disengagement. One of the main
executive branch objections to the War Powers Resolution has been that the
withdrawal requirement could be triggered by congressional inaction, and that
adversaries can simply wait out the 60 days. By providing for withdrawal by joint
resolution, this amendment would also deal with the provision for withdrawal by
concurrent resolution, under a cloud because of the Chadha decision. On the other
hand, a joint resolution requiring disengagement could be vetoed by the President and
thus would require a two-thirds majority vote in both Houses for enactment.
Cutoff of Funds
Some proposals call for prohibiting the obligation or expenditure of funds for any
use of U.S. armed forces in violation of the War Powers Resolution or laws passed
under it except for the purpose of removing troops. Congress could enforce thi
78
s
provision by refusing to appropriate further funds to continue the military action. This
has always been the case, some contend, and would not work because Congress
would remain reluctant to withhold financial support for U.S. Armed Forces once
they were abroad.
78S.J. Res. 323, introduced by Senators Byrd, Warner, and Nunn, May 19, 1988. On
September 29, 1983, Senators Cranston, Eagleton, and Stennis introduced an amendment to
this effect that had been proposed in the Senate Foreign Relations in July 1977 and known as
Committee Print No. 2, July 1, 1977. In U.S. Congress. Senate. Committee on Foreign
Relations. War Powers. Hearings, July 13,14 and 15, 1977. Wash., GPO, 1977. P.338. For
a review of the use of funding cutoffs by Congress since 1970 see: Richard F. Grimmett,
Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and
Overseas Deployments. CRS Report for Congress 95-1126. April 8, 1999, 6p.
CRS-47
Elimination of Action by Concurrent Resolution
Many proposed amendments eliminate section 5(c) providing that U.S. forces
engaged in hostilities abroad without congressional authorization are to be removed
if Congress so directs by concurrent resolution, and section 7 providing priority
procedures for a concurrent resolution. Those who hold this view contend the
concurrent resolution section is invalid because of the Chadha decision.
Expedited Procedures
Several proposals call for new and more detailed priority procedures for joint
resolutions introduced under the War Powers Resolution. These would apply to joint
resolutions either authorizing a military action or calling for the withdrawal of forces,
and to congressional action to sustain or override a Presidential veto of the joint
resolution.79
Consultation Group
Several proposed amendments have focused on improving consultation under
the War Powers Resolution, particularly by establishing a specific consultation group
in Congress for this purpose. Senators Byrd, Nunn, Warner, and Mitchell have
proposed the President regularly consult with an initial 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. Upon a request from a majority of this core
group, the President is to consult with a permanent consultative 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 permanent consultative
group would also be able to determine that the President should have reported an
introduction of forces and to introduce a joint resolution of authorization or
withdrawal that would receive expedited procedures.
80
Other Members have favored a consultation group, but consider that amendment
of the War Powers Resolution is not required for Congress to designate such a
group. On October 28, 1993, House Foreign Affairs Chairman Lee Hamilto
81
n
introduced H.R. 3405 to establish a Standing Consultative Group. Its purpose would
be to facilitate improved interaction between the executive branch and Congress on
the use of U.S. military forces abroad, including under the War Powers Resolution or
United Nations auspices. Members of the Consultative Group would be appointed
by the Speaker of the House and the Majority Leader of the Senate, after consultation
with the minority leaders. The Group would include majority and minority
representatives of the leadership and the committees on foreign policy, armed
services, intelligence, and appropriations.
See
79
Krotoski, Mark L. Essential Elements of Reform of the War Powers Resolution. Santa
Clara Law Review. Vol. 28, Summer 1989, p. 609-750.
S.J.Res. 323, introduced May 19, 1988.
80
81Fascell, Representative Dante. Testimony before Foreign Relations Committee, July 13,
1988.
CRS-48
Another proposal would attempt to improve consultation by broadening the
instances in which the President is required to consult. This proposal would cover all
situations in which a President is required to report, rather than only circumstances
that invoke the time limitation, as is now the case.82
Judicial Review
Proposals have been made that any Member of Congress may bring an action in
the United States District Court for the District of Columbia for judgment and
injunctive relief on the grounds that the President or the U.S. Armed Forces have not
complied with any provision of the War Powers Resolution. The intent of this
legislation is to give standing to Members to assert the interest of the House or
Senate, but whether it would impel courts to exercise jurisdiction is uncertain.
Proposals have also called for the court not to decline to make a determination on the
merits, on the grounds that the issue of compliance is a political question or otherwise
nonjusticiable; to accord expedited consideration to the matter; and to prescribe
judicial remedies including that the President submit a report or remove Armed Forces
from a situation.83
Change of Name
Other proposals would construct a Hostilities Act or Use of Force Act and
repeal the War Powers Resolution. A possible objection to
84
invoking the War Powers
Resolution is reluctance to escalate international tension by implying that a situation
is war. Some would see this as a step in the wrong direction; in the Korean and
Vietnam conflicts, some contend, it was self-deceptive and ultimately impractical not
to recognize hostilities of that magnitude as war and bring to bear the Constitutional
provision giving Congress the power to declare war.
United Nations Actions
With the increase in United Nations actions since the end of the Cold War, the
question has been raised whether the War Powers Resolution should be amended to
facilitate or restrain the President from supplying forces for U.N. actions without
congressional approval. Alternatively, the United Nations Participation Act might be
amended, or new legislation enacted, to specify how the War Powers Resolution is
to be applied, and whether the approval of Congress would be required only for an
initial framework agreement on providing forces to the United Nations, or whether
Congress would be required to approve an agreement to supply forces in specified
situations, particularly for U.N. peacekeeping operations.
82Strengthening Executive-Legislative Consultation on Foreign Policy. Foreign Affairs
Committee Print, October 1983, p. 67.
83H.J. Res. 95, War Powers Amendments of 1995, introduced by Representative DeFazio,
June 16, 1995.
H.R.
84
3912, Introduced by Representative Lungren, Feb. 4, 1988. Biden, Joseph R. Jr. and
John B. Ritch. The War Power at a Constitutional Impasse: a “Joint Decision” Solution.
Georgetown Law Journal, Vol. 77:367.
CRS-49
Appendix 1. Instances Reported under the War Powers
Resolution
This appendix lists reports Presidents have made to Congress under the War
Powers Resolution. Each entry contains the President’s reference to the War Powers
Resolution.
85 The reports generally cite the President’s authority to conduct foreign
relations and as Commander in Chief; each entry indicates any additional legislative
authority a President cites for his action.
(1) Danang, Vietnam. On April 4, 1975, President Ford reported the use of
naval vessels, helicopters, and Marines to transport refugees from Danang and other
seaports to safer areas in Vietnam. His report mentioned section 4(a)(2) of the War
Powers Resolution and authorization in the Foreign Assistance Act of 1961 for
humanitarian assistance to refugees suffering from the hostilities in South Vietnam.
Monroe Leigh, Legal Adviser to the Department of State, testified later that the
President “advised the members of the Senate and House leadership that a severe
emergency existed in the coastal communities of South Vietnam and that he was
directing American naval transports and contract vessels to assist in the evacuation
of refugees from coastal seaports.”
86
(2) Cambodia. On April 12, 1975, President Ford reported the use of ground
combat Marines, helicopters, and supporting tactical air elements to assist with the
evacuation of U.S. nationals from Cambodia. The report took note of both section
4 and section 4(a)(2) of the War Powers Resolution. On April 3, 1975, the day the
President authorized the Ambassador to evacuate the American staff, he directed that
the leaders of the Senate and House be advised of the general plan of evacuation. On
April 11, the day he ordered the final evacuation, President Ford again directed that
congressional leaders be notified.
(3) Vietnam. On April 30, 1975, President Ford reported the use of helicopters,
Marines, and fighter aircraft to aid in the evacuation of U.S. citizens and others from
South Vietnam. The report took note of section 4 of the War Powers Resolution.
On April 10, the President had asked Congress to clarify its limitation on the use of
forces in Vietnam to insure evacuation of U.S. citizens and to cover some Vietnamese
nationals, but legislation to this effect was not completed. On April 28, the President
85Two of the reports did not mention the War Powers Resolution but met the basic
requirement of reporting specified deployments or uses of forces. For the text of the reports
until April 12, 1994, and other key documents and correspondence see U.S. Congress. House.
Committee on Foreign Affairs. Subcommittee on International Security, International
Organizations and Human Rights. The War Powers Resolution, Relevant Documents,
Reports, Correspondence. Committee Print., 103 Con
rd
gress, second session, May 1994. 267
p.
86U.S. Congress. House. Committee on International Relations. War Powers: A test of
compliance relative to the Danang sealift, the evacuation of Phnom Penh, the evacuation of
Saigon, and the Mayaguez incident. Hearings, May 7 and June 4, 1975. Washington, U.S.
Govt. Printing Off., 1975. P. 3.
CRS-50
directed that congressional leaders be notified that the final phase of the evacuation
of Saigon would be carried out by military forces within the next few hours.87
(4) Mayaguez. On May 15, 1975, President Ford reported that he had ordered
U.S. military forces to rescue the crew of and retake the ship Mayaguez that had been
seized by Cambodian naval patrol boats on May 12, that the ship had been retaken,
and that the withdrawal of the forces had been undertaken. The report took note of
section 4(a)(1) of the War Powers Resolution. On May 13, Administration aides
contacted ten Members from the House and 11 Senators regarding the military
measures directed by the President.
88
(5) Iran. On April 26, 1980, President Carter reported the use of six aircraft and
eight helicopters in an unsuccessful attempt of April 24 to rescue the American
hostages in Iran. The report was submitted “consistent with the reporting provision”
of the War Powers Resolution. President Carter said the United States was acting in
accordance with its right under Article 51 of the United Nations Charter to protect
and rescue its citizens where the government of the territory in which they are located
is unable or unwilling to protect them. The Administration did not inform
congressional leaders of the plan on grounds that consultation could endanger the
success of the mission.
(6) Sinai. The United States, Egypt, and Israel signed an executive agreement
on August 3, 1981, outlining U.S. participation in a Multinational Force and
Observers unit to function as a peacekeeping force in the Sinai after Israel withdrew
its forces. In anticipation of this accord, on July 21, 1981, President Reagan
requested congressional authorization for U.S. participation. Congress authorized
President Reagan to deploy military personnel to the Sinai in the Multinational Force
and Observers Participation Resolution, P.L. 97-132, signed December 29, 1981.
On March 19, 1982, President Reagan reported the deployment of military personnel
and equipment to the Multinational Force and Observers in the Sinai. The President
said the report was provided “consistent with section 4(a)(2) of the War Powers
Resolution” and cited the Multinational Force and Observers Participation Resolution.
(7) Lebanon. On August 24, 1982, President Reagan reported the dispatch of
800 Marines to serve in the multinational force to assist in the withdrawal of members
of the Palestine Liberation force from Lebanon. The report was provided “consistent
with” but did not cite any specific provision of the War Powers Resolution. President
Reagan had began discussions with congressional leaders on July 6, 1982 after the
plan had been publicly announced, and after leaks in the Israeli press indicated that he
had approved the plan on July 2.89
(8) Lebanon. On September 29, 1982, President Reagan reported the
deployment of 1,200 Marines to serve in a temporary multinational force to facilitate
Ibid., p. 6.
87
Ibid., p. 78.
88
89Oberdorfer, Don and John M. Goshko. Peace-keeping Force. Washington Post, July 7,
1982, p. 1.
CRS-51
the restoration of Lebanese government sovereignty. He said the report was being
submitted “consistent with the War Powers Resolution.” On this second
Multinational Force in Lebanon there was a considerable amount of negotiation
between the executive branch and Congress, but most of it occurred after the decision
to participate had been made and the Marines were in Lebanon.90
(9) Chad. On August 8, 1983, President Reagan reported the deployment of
two AWACS electronic surveillance planes and eight F-15 fighter planes and ground
logistical support forces to Sudan to assist Chad and other friendly governments
helping Chad against Libyan and rebel forces. He said the report was being submitted
consistent with Section 4 of the War Powers Resolution. On August 23, 1983, a
State Department spokesman announced that the planes were being withdrawn.
(10) Lebanon. On August 30, 1983, after the Marines participating in the
Multinational Force in Lebanon were fired upon and two were killed, President
Reagan submitted a report “consistent with section 4 of the War Powers Resolution.”
In P.L.98-119, the Multinational Force in Lebanon Resolution, signed October 12,
1983, Congress determined section 4(a) had become operative on August 29, 1983,
and authorized the forces to remain for 18 months.
(11) Grenada. On October 25, 1983, President Reagan reported that U.S.
Army and Marine personnel had begun landing in Grenada to join collective security
forces of the Organization of Eastern Caribbean States in assisting in the restoration
of law and order in Grenada and to facilitate the protection and evacuation of U.S.
citizens. He submitted the report “consistent with the War Powers Resolution.”
President Reagan met with several congressional leaders at 8 p.m. on October 24.91
This was after the directive ordering the landing had been signed at 6 p.m., but before
the actual invasion that began at 5:30 a.m., October 25.
(12) Libya. On March 26, 1986, President Reagan reported (without any
mention of the War Powers Resolution) that, on March 24 and 25, U.S. forces
conducting freedom of navigation exercises in the Gulf of Sidra had been attacked by
Libyan missiles. In response, the United States fired missiles at Libyan vessels and at
Sirte, the missile site.
(13) Libya. On April 16, 1986, President Reagan reported, “consistent with the
War Powers Resolution”, that on April 14 U.S. air and naval forces had conducted
bombing strikes on terrorist facilities and military installations in Libya. President
Reagan had invited approximately a dozen congressional leaders to the White House
at about 4 p.m. on April 14 and discussed the situation until 6 p.m. He indicated that
he had ordered the bombing raid and that the aircraft from the United Kingdom were
on their way to Libya and would reach their targets about 7 p.m.
90Gwetzman, Bernard. U.S. To Send Back Marines to Beirut. New York Times, Sept. 21,
1982, p. 1.
U.S.
91
Declares Goal in to Protect Americans and Restore Order. Washington Post, Oct. 26,
1983. P. A7.
CRS-52
(14) Persian Gulf . On
92
September 23, 1987, President Reagan reported that,
on September 21, two U.S. helicopters had fired on an Iranian landing craft observed
laying mines in the Gulf. The President said that while mindful of legislative-executive
differences on the interpretation and constitutionality of certain provisions of the War
Powers Resolution, he was reporting in a spirit of mutual cooperation.
(15) Persian Gulf. On October 10, 1987, President Reagan reported
“consistent with the War Powers Resolution” that, on October 8, three U.S.
helicopters were fired upon by small Iranian naval vessels and the helicopters returned
fire and sank one of the vessels.
(16) Persian Gulf. On October 20, 1987, President Reagan reported an attack
by an Iranian Silkworm missile against the U.S.-flag tanker Sea Isle City on October
15 and U.S. destruction, on October 19, of the Iranian Rashadat armed platform used
to support attacks and mine-laying operations. The report was submitted “consistent
with the War Powers Resolution.”
(17) Persian Gulf. On April 19, 1988, President Reagan reported “consistent
with the War Powers Resolution” that in response to the U.S.S. Samuel B. Roberts
striking a mine on April 14, U.S. Armed Forces attacked and “neutralized” two
Iranian oil platforms on April 18 and, after further Iranian attacks, damaged or sank
Iranian vessels. The President called the actions “necessary and proportionate.” Prior
to this action, the President met with congressional leaders.
(18) Persian Gulf. On July 4, 1988, President Reagan reported that on July 3
the USS Vincennes and USS Elmer Montgomery fired upon approaching Iranian
small craft, sinking two. Firing in self-defense at what it believed to be a hostile
Iranian military aircraft, the Vincennes had shot down an Iranian civilian airliner. The
President expressed deep regret. The report was submitted “consistent with the War
Powers Resolution.”
(19) Persian Gulf. On July 14, 1988, President Reagan reported that, on July
12, two U.S. helicopters, responding to a distress call from a Japanese-owned
Panamanian tanker, were fired at by two small Iranian boats and returned the fire. The
report was submitted “consistent with the War Powers Resolution.”
(20) Philippines. On December 2, 1989, President Bush submitted a report to
congressional leaders “consistent with” the War Powers Resolution, describing
assistance of combat air patrols to help the Aquino government in the Philippines
restore order and to protect American lives. After the planes had taken off from
Clark Air Base to provide air cover, Vice President Quayle and other officials
informed congressional leaders. On December 7, House Foreign Affairs Committee
Chairman Dante Fascell wrote President Bush expressing his concern for the lack of
Earlier,
92
on September 21, 1987, Secretary of State George P. Shultz submitted a report
concerning the Iraqi aircraft missile attack on the U.S.S. Stark in the Persian Gulf similar to
reports in this list submitted by Presidents. The report did not mention the War Powers
Resolution but said the U.S. presence had been maintained in the Gulf pursuant to the
authority of the President as Commander-in-Chief.
CRS-53
advance consultation. In reply, on February 10, 1990, National Security Adviser
Brent Scowcroft wrote Chairman Fascell that the President was “committed to
consultations with Congress prior to deployments of U.S. Forces into actual or
imminent hostilities in all instances where such consultations are possible. In this
instance, the nature of the rapidly evolving situation required an extremely rapid
decision very late at night and consultation was simply not an option.”
(21) Panama. On December 21, 1989, President Bush reported “consistent
with the War Powers Resolution” that he had ordered U.S. military forces to Panama
to protect the lives of American citizens and bring General Noriega to justice. By
February 13, 1990, all the invasion forces had been withdrawn. President Bush
informed several congressional leaders of the approaching invasion of Panama at 6
p.m. on December 19, 1989. This was after the decision to take action was made, but
before the operation actually began at 1:00 a.m., December 20.
(22) Liberia. On August 6, 1990, President Bush reported to Congress that
following discussions with congressional leaders, a reinforced rifle company had been
sent to provide additional security to the U.S. Embassy in Monrovia and helicopter
teams had evacuated U.S. citizens from Liberia. The report did not mention the War
Powers Resolution or cite any authority.
(23) Iraq. On August 9, 1990, President Bush reported to Congress “consistent
with the War Powers Resolution” that he had ordered the forward deployment of
substantial elements of the U.S. Armed Forces into the Persian Gulf region to help
defend Saudi Arabia after the invasion of Kuwait by Iraq. The Bush Administration
notified congressional leaders that it was deploying U.S. troops to Saudi Arabia on
August 7, the date of the deployment. After the forces had been deployed, President
Bush held several meetings with congressional leaders and members of relevant
committees, and committees held hearings to discuss the situation.
(24) Iraq. On November 16, 1990, President Bush reported, without mention
of the War Powers Resolution but referring to the August 9 letter, the continued
buildup to ensure “an adequate offensive military option.” Just prior to adjournment,
Senate Majority Leader Mitchell and Speaker Foley designated Members to form a
consultation group, and the President held meetings with the group on some
occasions, but he did not consult the members in advance on the major buildup of
forces in the Persian Gulf area announced November 8.
(25) Iraq. On January 18, 1991, President Bush reported to Congress
“consistent with the War Powers Resolution” that he had directed U.S. Armed Forces
to commence combat operations on January 16 against Iraqi forces and military
targets in Iraq and Kuwait. On January 12, Congress had passed the Authorization
for Use of Military Force against Iraq Resolution (P.L. 102-1), which stated it was
the specific statutory authorization required by the War Powers Resolution. P.L. 102-
1 required 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, and Presidents submitted subsequent reports on military actions
in Iraq “consistent with” P.L. 102-1. An exception is report submitted June 28, 1993,
described below.
CRS-54
(26) Somalia. On December 10, 1992, President Bush reported “consistent
with the War Powers Resolution” that U.S. armed forces had entered Somalia on
December 8 in response to a humanitarian crisis and a U.N. Security Council
Resolution determining that the situation constituted a threat to international peace.
He included as authority applicable treaties and laws, and said he had also taken into
account views expressed in H.Con. Res. 370, S. Con. Res. 132, and the Horn of
Africa Recovery and Food Security Act, P.L. 102-274. On December 4, the day the
President ordered the forces deployed, he briefed a number of congressional leaders
on the action.
(27) Bosnia. On April 13, 1993, President Clinton reported “consistent with
Section 4 of the War Powers Resolution” that U.S. forces were participating in a
NATO air action to enforce a U.N. ban on all unauthorized military flights over
Bosnia-Hercegovina, pursuant to his authority as Commander in Chief. Later, on
April 27, President Clinton consulted with about two dozen congressional leaders on
potential further action.
(28) Somalia. On June 10, 1993, President Clinton reported that in response
to attacks against U.N. forces in Somalia by a factional leader, the U.S. Quick
Reaction Force in the area had participated in military action to quell the violence.
He said the report was “consistent with the War Powers Resolution, in light of the
passage of 6 months since President Bush’s initial report....” He said the action was
in accordance with applicable treaties and laws, and said the deployment was
consistent with S.J.Res. 45 as adopted by the Senate and amended by the House. (The
Senate did not act on the House amendment, so Congress did not take final action on
S.J.Res. 45.)
(29) Iraq. On June 28, 1993, President Clinton reported “consistent with the
War Powers Resolution” that on June 26 U.S. naval forces had launched missiles
against the Iraqi Intelligence Service’s headquarters in Baghdad in response to an
unsuccessful attempt to assassinate former President Bush in Kuwait in April 1993.
(30) Macedonia . On July 9, 1993, President Clinton reported “consisten
93
t
with Section 4 of the War Powers Resolution” the deployment of approximately 350
U.S. armed forces to Macedonia to participate in the U.N. Protection Force to help
maintain stability in the area of former Yugoslavia. He said the deployment was
directed in accordance with Section 7 of the United Nations Participation Act.
(31) Bosnia. On October 13, 1993, President Clinton reported “consistent with
the War Powers Resolution” that U.S. military forces continued to support
enforcement of the U.N. no-fly zone in Bosnia, noting that more that 50 U.S. aircraft
were now available for NATO efforts in this regard.
(32) Haiti. On October 20, 1993, President Clinton submitted a report
“consistent with the War Powers Resolution” that U.S. ships had begun to enforce a
U.N. embargo against Haiti.
See footnote 66 above discussing Macedonia.
93
CRS-55
(33) Macedonia. On January 8, 1994, President Clinton reported “consistent
with the War Powers Resolution” that approximately 300 members of a reinforced
company team (RCT) of the U.S. Army’s 3rd Infantry Division (Mechanized) had
assumed a peacekeeping role in Macedonia as part of the United Nations Protection
Force (UNPROFOR) on January 6, 1994.
(34) Bosnia. On February 17, 1994, President Clinton reported “consistent with
the War Powers Resolution” that the United States had expanded its participation in
United Nations 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.
(35) Bosnia. On March 1, 1994, President Clinton reported “consistent with”
the War Powers Resolution that on February 28 U.S. planes patrolling the “no-fly
zone” in former Yugoslavia under the North Atlantic Treaty Organization (NATO)
shot down 4 Serbian Galeb planes.
(36) Bosnia. On April 12, 1994, President Clinton reported “consistent with” the
War Powers Resolution that on April 10 and 11, U.S. warplanes under NATO
command had fired against Bosnian Serb forces shelling the “safe” city of Gorazde.
(37) Rwanda. On April 12, 1994, President Clinton reported “consistent with”
the War Powers Resolution that combat-equipped U.S. military forces had been
deployed to Burundi to conduct possible non-combatant evacuation operations of
U.S. citizens and other third-country nationals from Rwanda, where widespread
fighting had broken out.
(38) Macedonia. On April 19, 1994, President Clinton reported “consistent with
the War Powers Resolution” that the U.S. contingent in the former Yugoslav
Republic of Macedonia had been augmented by a reinforced company of 200
personnel.
(39) Haiti. On April 20, 1994, President Clinton 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.
(40) Bosnia. On August 22, 1994, President Clinton reported the use on August
5 of U.S. aircraft under NATO to attack Bosnian Serb heavy weapons in the Sarajevo
heavy weapons exclusion zone upon request of the U.N. Protection Forces. He did
not cite the War Powers Resolution but referred to the April 12 report that cited the
War Powers Resolution.
(41) Haiti. On September 21, 1994, President Clinton reported “consistent with
the War Powers Resolution” the deployment of 1,500 troops to Haiti to restore
democracy in Haiti. The troop level was subsequently increased to 20,000.
(42) Bosnia. On November 22, 1994, President Clinton reported “consistent
with the War Powers Resolution” the use of U.S. combat aircraft on November 21,
1994 under NATO to attack bases used by Serbs to attack the town of Bihac in
Bosnia.
CRS-56
(43) Macedonia. On December 22, 1994, President Clinton reported
“consistent with the War Powers Resolution” that the U.S. Army contingent in the
former Yugoslav Republic of Macedonia continued its peacekeeping mission and that
the current contingent would soon be replaced by about 500 soldiers from the 3rd
Battalion, 5th Cavalry Regiment, 1st Armored Division from Kirchgons, Germany.
(44) Somalia. 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) Haiti. 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) Bosnia. 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) Bosnia. 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) Haiti. 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) Bosnia. 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.
CRS-57
(50) Bosnia. 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) Haiti. 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) Liberia. 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) Liberia. 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) Central African Republic. 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) Bosnia. 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).
CRS-58
(56) Rwanda and Zaire. On December 2, 1996, President Clinton notified
Congress “consistent with the War Powers Resolution,” that in support of the
humanitarian efforts of the United Nations regarding refugees in Rwanda and the
Great Lakes Region of Eastern Zaire, he had authorized the use of U.S. personnel and
aircraft, including AC-130U planes to help in surveying the region in support of
humanitarian operations, although fighting still was occurring in the area, and U.S.
aircraft had been subject to fire when on flight duty.
(57) Bosnia. On December 20, 1996, President Clinton notified Congress
“consistent with the War Powers Resolution,” that he had authorized U.S.
participation in an IFOR follow-on force in Bosnia, known as SFOR (Stabilization
Force), under NATO command. The President said the U.S. forces contribution to
SFOR was to be “about 8,500" personnel whose primary mission was to deter or
prevent a resumption of hostilities or new threats to peace in Bosnia. SFOR’s duration
was Bosnia is expected to be 18 months, with progressive reductions and eventual
withdrawal.
(58) Albania. On March 15, 1997, President Clinton notified Congress
“consistent with the War Powers Resolution,” that on March 13, 1997, he had utilized
U.S. military forces to evacuate certain U.S. Government employees and private U.S.
citizens from Tirana, Albania, and to enhance security for the U.S. embassy in that
city.
(59) Congo and Gabon. On March 27, 1997, President Clinton notified
Congress “consistent with the War Powers Resolution,” that on March 25, 1997, a
standby evacuation force of U.S. military personnel had been deployed to Congo and
Gabon to provide enhanced security for American private citizens, government
employees and selected third country nationals in Zaire, and be available for any
necessary evacuation operation.
(60) Sierra Leone. On May 30, 1997, President Clinton notified Congress
“consistent with the War Powers Resolution,” that on May 29 and May 30, 1997,
U.S. military personnel were deployed to Freetown, Sierra Leone to prepare for and
undertake the evacuation of certain U.S. Government employees and private U.S.
citizens.
(61) Bosnia. On June 20, 1997, President Clinton notified Congress “consistent
with the War Powers Resolution,” that U.S. Armed Forces continued to support
peacekeeping operations in Bosnia and other states in the region in support of the
NATO-led Stabilization Force (SFOR). He reported that most U.S. military personnel
then involved in SFOR were in Bosnia, near Tuzla, and about 2,800 U.S. troops were
deployed in Hungary, Croatia, Italy, and other regional states to provide logistics and
other support to SFOR. A U.S. Army contingent of about 500 also remained
deployed in the Former Yugoslav Republic of Macedonia as part of the U.N.
Preventative Deployment Force (UNPREDEP).
(62) Cambodia. On July 11, 1997, President Clinton notified Congress
“consistent with the War Powers Resolution,” that in an effort to ensure the security
of American citizens in Cambodia during a period of domestic conflict there, he had
deployed a Task Force of about 550 U.S. military personnel to Utapao Air Base in
CRS-59
Thailand. These personnel were to be available for possible emergency evacuation
operations in Cambodia.
(63) Bosnia. On December 19, 1997, President Clinton notified Congress
“consistent with the War Powers Resolution,” that he intended “in principle” to have
the United States participate in a security presence in Bosnia when the NATO SFOR
contingent withdrew in the summer of 1998.
(64) Guinea-Bissau. On June 12, 1998 President Clinton reported to Congress
“consistent with the War Powers Resolution” that, on June 10, 1998, in response to
an army mutiny in Guinea-Bissau endangering the U.S. Embassy and U.S. government
employees and citizens in that country, he had deployed a standby evacuation force
of U.S. military personnel to Dakar, Senegal, to remove such individuals, as well as
selected third country nationals, from the city of Bissau.
(65) Bosnia. On June 19, 1998, President Clinton reported to Congress
“consistent with the War Powers Resolution” regarding activities in the last six
months of combat-equipped U.S. forces in support of NATO’s SFOR in Bosnia and
surrounding areas of former Yugoslavia.
(66) Kenya and Tanzania. On August 10, 1998, President Clinton reported to
Congress “consistent with the War Powers Resolution” that he had deployed, on
August 7, 1998, a Joint Task Force of U.S. military personnel to Nairobi, Kenya to
coordinate the medical and disaster assistance related to the bombings of the U.S.
embassies in Kenya and Tanzania. He also reported that teams of 50-100 security
personnel had arrived in Nairobi, Kenya and Dar es Salaam, Tanzania to enhance the
security of the U.S. embassies and citizens there.
(67) Albania. On August 18, 1998, President Clinton reported to Congress,
“consistent with the War Powers Resolution,” that he had, on August 16, 1998,
deployed 200 U.S. Marines and 10 Navy SEALS to the U.S. Embassy compound in
Tirana, Albania to enhance security against reported threats against U.S. personnel.
(68) Afghanistan and Sudan. On August 21, 1998, by letter, President Clinton
notified Congress “consistent with the War Powers Resolution” that he had
authorized airstrikes on August 20 against camps and install
th
ations in Afghanistan and
Sudan used by the Osama bin Laden terrorist organization. The President did so based
on what he termed convincing information that the bin Laden organization was
responsible for the bombings, on August 7, 1998, of the U.S. embassies in Kenya and
Tanzania.
(69) Liberia. On September 29, 1998, by letter, President Clinton notified
Congress “consistent with the War Powers Resolution” that he had deployed a stand-
by response and evacuation force to Liberia to augment the security force at the U.S.
Embassy in Monrovia, and to provide for a rapid evacuation capability, as needed, to
remove U.S. citizens and government personnel from the country.
(70) Bosnia. On January 19, 1999, by letter, President Clinton notified Congress
“consistent with the War Powers Resolution” that pursuant to his authority as
Commander-in-Chief he was continuing to authorize the use of combat-equipped U.S.
CRS-60
Armed Forces to Bosnia and other states in the region to participate in and support
the NATO-led Stabilization Force (SFOR). He noted that U.S. SFOR military
personnel totaled about 6,900, with about 2,300 U.S. military personnel deployed to
Hungary, Croatia, Italy and other regional states. Also some 350 U.S. military
personnel remain deployed in the Former Yugoslav Republic of Macedonia (FYROM)
as part of the UN Preventative Deployment Force (UNPREDEP).
(71) Kenya. On February 25, 1999, President Clinton submitted a supplemental
report to Congress “consistent with the War Powers Resolution” describing the
continuing deployment of U.S. military personnel in Kenya to provide continuing
security for U.S. embassy and American citizens in Nairobi in the aftermath of the
terrorist bombing there.
(72) Yugoslavia. On March 26, 1999, President Clinton notified Congress
“consistent with the War Powers Resolution,” that on March 24, 1999, U.S. military
forces, at his direction and acting jointly with NATO allies, had commenced air strikes
against Yugoslavia in response to the Yugoslav government’s campaign of violence
and repression against the ethnic Albanian population in Kosovo.
(73) Yugoslavia. On April 7, 1999, President Clinton notified Congress,
“consistent with the War Powers Resolution,” that he had ordered additional U.S.
military forces to Albania, including rotary wing aircraft, artillery, and tactical missiles
systems to enhance NATO’s ability to conduct effective air operations in Yugoslavia.
About 2,500 soldiers and aviators are to be deployed as part of this task force.
(74) Yugoslavia. On May 25, 1999, President Clinton reported to Congress,
“consistent with the War Powers Resolution” that he had directed “deployment of
additional aircraft and forces to support NATO’s ongoing efforts [against
Yugoslavia], including several thousand additional U.S. Armed Forces personnel to
Albania in support of the deep strike force located there.” He also directed that
additional U.S. forces be deployed to the region to assist in “humanitarian
operations.”
(75) Yugoslavia. On June 12, 1999, President Clinton reported to Congress,
“consistent with the War Powers Resolution,” that he had directed the deployment of
about “7,000 U.S. military personnel as the U.S. contribution to the approximately
50,000-member, NATO-led security force (KFOR)” currently being assembled in
Kosovo. He also noted that about “1,500 U.S. military personnel, under separate
U.S. command and control, will deploy to other countries in the region, as our
national support element, in support of KFOR.”
(76) Bosnia. On July 19, 1999, President Clinton reported to Congress
“consistent with the War Powers Resolution” that about 6,200 U.S. military personnel
were continuing to participate in the NATO-led Stabilization Force (SFOR) in Bosnia,
and that another 2,200 personnel were supporting SFOR operations from Hungary,
Croatia, and Italy. He also noted that U.S. military personnel remain in the Former
Yugoslav Republic of Macedonia to support the international security presence in
Kososo (KFOR).
CRS-61
Appendix 2. Instances Not Formally Reported to the
Congress Under the War Powers Resolution
In some instances where U.S. Armed Forces have been deployed in potentially
hostile situations abroad, Presidents did not submit reports to Congress under the War
Powers Resolution and the question of whether a report was required could be raised.
Representative examples of these instances since 1973 include:94
! evacuation of civilians from Cyprus in 1974
! evacuation of civilians from Lebanon in 1976
! Korean DMZ tree-cutting incident of 1976
! transport of European troops to Zaire in 1978
! dispatch of additional military advisers to El Salvador in 1981
! shooting down of two Libyan jets over the Gulf of Sidra on August 19, 1981,
after one had fired a heat-seeking missile
! the use of training forces in Honduras after 1983
! dispatch of AWACS to Egypt after a Libyan plane bombed a city in Sudan
March 18, 1983
! shooting down of two Iranian fighter planes over Persian Gulf on June 5, 1984,
by Saudi Arabian jet fighter planes aided by intelligence from a U.S. AWACS
! interception by U.S. Navy pilots on October 10, 1985, of an Egyptian airliner
carrying hijackers of the Italian cruise ship Achille Lauro
! use of U.S. Army personnel and aircraft in Bolivia for anti-drug assistance on
July 14, 1986
! buildup of fleet in Persian Gulf area in 1987
! force augmentations in Panama in 1988 and 1989
! shooting down 2 Libyan jet fighters over the Mediterranean Sea on January 4,
1989
! dispatch of military advisers and Special Forces teams to Colombia, Bolivia,
and Peru, in the Andean initiative, announced September 5, 1989, to help those
nations combat illicit drug traffickers
! transport of Belgian troops and equipment into Zaire September 25-27, 1991
! evacuation of non-essential U.S. government workers and families from Sierra
Leone, May 3, 1992
! a bombing campaign against Iraq, termed Operation Desert Fox,aimed at
destroying Iraqi industrial facilities deemed capable of producing weapons of
mass destruction, as well as other Iraqi military and security targets, December
16-23, 1998.
94The list does not include military assistance or training operations generally considered
routine, forces dispatched for humanitarian reasons such as disaster relief, or covert actions.
War powers questions have 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. The War Powers Resolution
applies only to the introduction of forces into situations of hostilities or imminent hostilities
and to forces equipped for combat.