The War Powers Resolution: Concepts and Practice

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The War Powers Resolution:

Concepts and Practice

Matthew C. Weed

Specialist in Foreign Policy Legislation

Updated March 8, 2019

Congressional Research Service

7-....

www.crs.gov

R42699

The War Powers Resolution: Concepts and Practice

Summary

This report discusses and assesses the War Powers Resolution and its application since enactment

in 1973, providing detailed background on various cases in which it was used, as well as cases in

which issues of its applicability were raised.

In the post-Cold War world, Presidents have continued to commit U.S. Armed Forces into

potential hostilities, sometimes without a specific authorization from Congress. Thus the War

Powers Resolution and its purposes continue to be a potential subject of controversy. On June 7,

1995, the House defeated, by a vote of 217-201, an amendment to repeal the central features of

the War Powers Resolution that have been deemed unconstitutional by every President since the

law’s enactment in 1973. In 1999, after the President committed U.S. military forces to action in

Yugoslavia without congressional authorization, Representative Tom Campbell used expedited

procedures under the Resolution to force a debate and votes on U.S. military action in Yugoslavia,

and later sought, unsuccessfully, through a federal court suit to enforce presidential compliance

with the terms of the War Powers Resolution.

The War Powers Resolution (P.L. 93-148) was enacted over the veto of President Nixon on

November 7, 1973, to provide procedures for Congress and the President to participate in

decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1) requires the President to

report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When

such a report is submitted, or is required to be submitted, Section 5(b) requires that the use of

forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends

the time period. Section 3 requires that the “President in every possible instance shall consult with

Congress before introducing” U.S. Armed Forces into hostilities or imminent hostilities.

From 1975 through March 2017, Presidents have submitted 168 reports as the result of the War

Powers Resolution, but only one, the 1975 Mayaguez seizure, cited Section 4(a)(1), which

triggers the 60-day withdrawal requirement, and in this case the military action was completed

and U.S. Armed Forces had disengaged from the area of conflict when the report was made. The

reports submitted by the President since enactment of the War Powers Resolution cover a range of

military activities, from embassy evacuations to full-scale combat military operations, such as the

Persian Gulf conflict, and the 2003 war with Iraq, the intervention in Kosovo, and the antiterrorism actions in Afghanistan. In some instances, U.S. Armed Forces have been used in hostile

situations without formal reports to Congress under the War Powers Resolution. On one occasion,

Congress exercised its authority to determine that the requirements of Section 4(a)(1) became

operative on August 29, 1983, through passage of the Multinational Force in Lebanon Resolution

(P.L. 98-119). In 1991 and 2002, Congress authorized, by law, the use of military force against

Iraq. In several instances none of the President, Congress, or the courts has been willing to initiate

the procedures of or enforce the directives in the War Powers Resolution.

In the 115th Congress, U.S. military operations related to the joint counter-Houthi campaign

conducted by the Kingdom of Saudi Arabia and the United Arab Emirates (UAE) in Yemen

spurred congressional legislative action in both houses of Congress. The Senate on December 13,

2018, voted to adopt S.J.Res. 54, a joint resolution to “direct the removal of United States Armed

Forces from hostilities in the Republic of Yemen that have not been authorized by Congress,”

marking the first instance that such a joint resolution received consideration and passed the full

Senate under the expedited consideration provisions of Section 1013 of the Department of State

Authorization Act, Fiscal Years 1984 and 1985 (P.L. 98-164; 50 U.S.C. §1546a). In the 116th

Congress, the House of Representatives on February 13, 2019, voted to adopt a similar joint

resolution on U.S. military involvement in Yemen, H.J.Res. 37, and the Senate is expected to take

up a companion measure, S.J.Res. 7, in March 2019.

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Contents

Introduction ..................................................................................................................................... 1

Provisions of the War Powers Resolution (P.L. 93-148) ................................................................. 1

Title ........................................................................................................................................... 1

Purpose and Policy .................................................................................................................... 1

Consultation Requirement ......................................................................................................... 2

Reporting Requirements............................................................................................................ 2

Congressional Action ................................................................................................................ 4

Priority Procedures .................................................................................................................... 5

Interpretive Provisions .............................................................................................................. 5

Constitutional Questions Raised...................................................................................................... 6

War Powers of the President and Congress ............................................................................... 6

Legislative Veto ......................................................................................................................... 7

Automatic Withdrawal Provision .............................................................................................. 9

Major Cases and Issues Prior to the Persian Gulf War .................................................................... 9

Vietnam Evacuations and Mayaguez: What Is Consultation? ................................................. 10

Iran Hostage Rescue Attempt: Is Consultation Always Necessary and Possible? .................. 10

El Salvador: When Are Military Advisers in Imminent Hostilities? ....................................... 10

Honduras: When Are Military Exercises More than Training? ............................................... 12

Lebanon: How Can Congress Invoke the War Powers Resolution? ....................................... 13

Grenada: Do the Expedited Procedures Work? ....................................................................... 14

Libya: Should Congress Help Decide on Raids to Undertake in Response to

International Terrorism? ....................................................................................................... 15

Persian Gulf, 1987: When Are Hostilities Imminent? ............................................................. 16

Invasion of Panama: Why Was the War Powers Issue Not Raised? ........................................ 18

Major Cases and Issues in the Post-Cold War World .................................................................... 18

Persian Gulf War, 1991: How Does the War Powers Resolution Relate to the United

Nations and a Real War? ...................................................................................................... 20

Iraq-Post Gulf War: How Long Does an Authorization Last?................................................. 23

Somalia: When Does Humanitarian Assistance Require Congressional Authorization? ........ 25

Former Yugoslavia/Bosnia/Kosovo: What If No Consensus Exists? ...................................... 27

Bosnia ............................................................................................................................... 27

Kosovo .............................................................................................................................. 32

Haiti: Can the President Order Enforcement of a U.N. Embargo? ......................................... 35

Terrorist Attacks against the United States (World Trade Center and the Pentagon)

2001: How Does the War Powers Resolution Apply? .......................................................... 37

Use of Force Against Iraq Resolution 2002: A Classic Application of the War Powers

Resolution? .......................................................................................................................... 40

Libya 2011: Establishing a New Definition of What Constitutes “Hostilities” for

Purposes of Full Compliance with the War Powers Resolution? ......................................... 42

Administration Report to Congress on “United States Activities in Libya”

Submitted on June 15, 2011 ........................................................................................... 43

The War Powers Resolution and Military Use of UAVs: Some Considerations ............... 43

Military Campaign Against the Islamic State ......................................................................... 44

Presidential Reporting on Individual Missions and the War Powers Resolution’s

Withdrawal Requirement ............................................................................................... 45

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Presidential Reliance on Prior Existing Authorizations to Meet War Powers

Resolution Requirements ............................................................................................... 48

Congressional Action Related to War Powers Resolution Requirements ......................... 49

Niger: Hostilities Involving U.S. Forces Operating Under Title 10 Authorities ..................... 52

Yemen: “Hostilities” and Support of Foreign Military Action ................................................ 55

WPR-Related Congressional Action to Disapprove U.S. Military Involvement .............. 56

Renewed Efforts in the 116th Congress ............................................................................. 59

What Constitutes U.S. “Hostilities” Related to Yemen..................................................... 61

Interpretive Provision Related to Activities of Foreign Military Forces ........................... 62

Proposed Amendments .................................................................................................................. 63

Return to Senate Version: Enumerating Exceptions for Emergency Use ................................ 65

Shorten or Eliminate Time Limitation .................................................................................... 65

Replace Automatic Withdrawal Requirement ......................................................................... 65

Cutoff of Funds ....................................................................................................................... 65

Elimination of Action by Concurrent Resolution .................................................................... 66

Expedited Procedures .............................................................................................................. 66

Consultation Group ................................................................................................................. 66

Judicial Review ....................................................................................................................... 67

Change of Name ...................................................................................................................... 67

United Nations Actions ........................................................................................................... 67

Appendixes

Appendix A. Instances Reported Under the War Powers Resolution ............................................ 68

Appendix B. Instances Not Formally Reported to the Congress Under the War Powers

Resolution................................................................................................................................... 95

Appendix C. Text of the War Powers Resolution .......................................................................... 96

Contacts

Author Contact Information ........................................................................................................ 100

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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 40 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 March 2015, and proposed amendments to it. Appendix A

lists instances which Presidents have reported to Congress under the War Powers Resolution, and

Appendix B lists certain instances of the use of U.S. Armed Forces that were not reported.

Provisions of the War Powers Resolution

(P.L. 93-148)

Title

Section 1 establishes the title, “The War Powers Resolution.” The law is frequently referred to as

the “War Powers Act,” the title of the measure passed by the Senate. Although the latter is not

technically correct, it does serve to emphasize that the War Powers Resolution, embodied in a

joint resolution which complies with constitutional requirements for lawmaking, is a law.

Purpose and Policy

Section 2 states the Resolution’s purpose and policy, with Section 2(a) citing as the primary

purpose to “insure that the collective judgment of both the Congress and the President will apply

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to the introduction of United States Armed Forces into hostilities, or into situations where

imminent involvement in hostilities is clearly indicated by the circumstances, and to the

continued use of such forces in hostilities or in such situations.”

Section 2(b) points to the Necessary and Proper Clause of the Constitution as the basis for

legislation on the war powers. It provides that “Under Article I, section 8, of the Constitution it is

specifically provided that Congress shall have the power to make all laws necessary and proper

for carrying into execution, not only its own powers but also all other powers vested by the

Constitution in the Government of the United States....”

Section 2(c) states the policy that the powers of the President as Commander in Chief to introduce

U.S. Armed Forces into situations of hostilities or imminent hostilities “are exercised only

pursuant to—

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or

possessions, or its armed forces.”

Consultation Requirement

Section 3 of the War Powers Resolution requires the President “in every possible instance” to

consult with Congress before introducing U.S. Armed Forces into situations of hostilities and

imminent hostilities, and to continue consultations as long as the armed forces remain in such

situations. The House report elaborated:

A considerable amount of attention was given to the definition of consultation. Rejected

was the notion that consultation should be synonymous with merely being informed.

Rather, consultation in this provision means that a decision is pending on a problem and

that Members of Congress are being asked by the President for their advice and opinions

and, in appropriate circumstances, their approval of action contemplated. Furthermore, for

consultation to be meaningful, the President himself must participate and all information

relevant to the situation must be made available.1

The House version specifically called for consultation between the President and the leadership

and appropriate committees. This was changed to less specific wording in conference, however,

in order to provide more flexibility.

Reporting Requirements

Section 4 requires the President to report to Congress whenever he introduces U.S. Armed Forces

abroad in certain situations. Of key importance is Section 4(a)(1) because it triggers the time limit

in Section 5(b). Section 4(a)(1) requires reporting within 48 hours, in the absence of a declaration

of war or congressional authorization, the introduction of U.S. Armed Forces “into hostilities or

into situations where imminent involvement in hostilities is clearly indicated by the

circumstances.”

Some indication of the meaning of hostilities and imminent hostilities is given in the House report

on its War Powers bill:

The word hostilities was substituted for the phrase armed conflict during the

subcommittee drafting process because it was considered to be somewhat broader in scope.

1 U.S. Congress. H.R. 287, p. 6.

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In addition to a situation in which fighting actually has begun, hostilities also encompasses

a state of confrontation in which no shots have been fired but where there is a clear and

present danger of armed conflict. “Imminent hostilities” denotes a situation in which there

is a clear potential either for such a state of confrontation or for actual armed conflict. 2

Section 4(a)(2) requires the reporting of the introduction of troops “into the territory, airspace or

waters of a foreign nation, while equipped for combat, except for deployments which relate solely

to supply, replacement, repair, or training of such forces.” According to the House report this was

to cover

the initial commitment of troops in situations in which there is no actual fighting but some

risk, however small, of the forces being involved in hostilities. A report would be required

any time combat military forces were sent to another nation to alter or preserve the existing

political status quo or to make the U.S. presence felt. Thus, for example, the dispatch of

Marines to Thailand in 1962 and the quarantine of Cuba in the same year would have

required Presidential reports. Reports would not be required for routine port supply calls,

emergency aid measures, normal training exercises, and other noncombat military

activities.3

Section 4(a)(3) requires the reporting of the introduction of troops “in numbers which

substantially enlarge United States Armed Forces equipped for combat already located in a

foreign nation.” The House report elaborated:

While the word “substantially” designates a flexible criterion, it is possible to arrive at a

common-sense understanding of the numbers involved. A 100% increase in numbers of

Marine guards at an embassy—say from 5 to 10—clearly would not be an occasion for a

report. A thousand additional men sent to Europe under present circumstances does not

significantly enlarge the total U.S. troop strength of about 300,000 already there. However,

the dispatch of 1,000 men to Guantanamo Bay, Cuba, which now has a complement of

4,000 would mean an increase of 25%, which is substantial. Under this circumstance,

President Kennedy would have been required to report to Congress in 1962 when he raised

the number of U.S. military advisers in Vietnam from 700 to 16,000. 4

All of the reports under Section 4(a), which are to be submitted to the Speaker of the House and

the President pro tempore of the Senate, are to set forth

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

Section 4(b) requires the President to furnish such other information as Congress may request to

fulfill its responsibilities relating to committing the nation to war.

Section 4(c) requires the President to report to Congress periodically, and at least every six

months, whenever U.S. forces are introduced into hostilities or any other situation in Section 4(a).

The objectives of these provisions, the conference report stated, was to “ensure that the Congress

by right and as a matter of law will be provided with all the information it requires to carry out its

constitutional responsibilities with respect to committing the Nation to war and to the use of

United States Armed Forces abroad.”5

2 U.S. Congress. H.R. 287, p. 7.

3 U.S. Congress. H.R. 287, p. 7.

4 U.S. Congress. H.R. 287, p. 8.

5 U.S. Congress. H.R. 547, p. 8.

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Required Reporting on “Legal and Policy Frameworks” Related to the Use of

Military Force

Section 1264 of the National Defense Authorization Act for Fiscal Year 2018 (P.L. 115-91; 50 U.S.C. §1549)

required the President to submit a “report on the legal and policy frameworks for the United States’ use of

military force and related national security operations” to the Armed Services Committees, the Appropriations

Committees, the House Foreign Affairs Committee and Senate Foreign Relations Committee, and the House

Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence. This initial report was

to be provided not later than 90 days after the act’s enactment (December 12, 2017). Thereafter, any change to

these legal and policy frameworks must be reported by the President to the same set of “appropriate

congressional committees” not later than 30 days after such change. Thus, although there is no regular interval for

additional reporting,6 changes to policies and legal justifications for new uses of military force as well as existing

ones might be expected to produce new reporting in the future. Section 1264 is codified in Chapter 33 of Title 50

of the U.S. Code, alongside the provisions of the War Powers Resolution, but is not technically part of the

Resolution.

President Trump provided the initial report required by Section 1264 in March 2018.7 Section 1264 does not

specifically require reporting on new uses of military force—it requires reporting on “frameworks,” not specific

decisions to use force within those frameworks. Nonetheless, as an example, the report explained in detail the use

of military force in each of the countries and against each of the groups or individuals that the executive branch

has previously announced fall under the authority provided in the Authorization for Use of Military Force (2001

AUMF; P.L. 107-40; 50 U.S.C. §1541 note). It is arguable, therefore, that the executive branch has interpreted the

provision to require new reporting under Section 1264 whenever a use of military force (1) requires reliance on a

new legal justification (or an existing legal justification is extended to a new military use of force), or (2)

represents a new U.S. government policy to use military force in a new country or against a new group.

Congressional Action

Section 5(a) deals with congressional procedures for receipt of a report under Section 4(a)(1). It

provides that if a report is transmitted during a congressional adjournment, the Speaker of the

House and the President pro tempore of the Senate, when they deem it advisable or if petitioned

by at least 30% of the Members of their respective Houses, shall jointly request the President to

convene Congress in order to consider the report and take appropriate action.

Section 5(b) was intended to provide teeth for the War Powers Resolution. After a report “is

submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier,” Section

5(b) requires the President to terminate the use of U.S. Armed Forces after 60 days unless

Congress (1) has declared war or authorized the action; (2) has extended the period by law; or (3)

is physically unable to meet as a result of an armed attack on the United States. The 60 days can

be extended for 30 days by the President if he certifies that “unavoidable military necessity

respecting the safety of United States Armed Forces” requires their continued use in the course of

bringing about their removal.

Section 5(c) requires the President to remove the forces at any time if Congress so directs by

concurrent resolution; the effectiveness of this subsection is uncertain because of the 1983

Supreme Court decision on the legislative veto. It is discussed in Part II of this report.

6 Section 1264’s requirements represent congressional action to make earlier presidential reporting on use of military

force frameworks a permanent requirement. The Obama Administration produced a similar report in December 2016,

and a directive from President Obama required relevant executive branch officials to update the report on an annual

basis. See Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related

National Security Operations, December 5, 2016; U.S. President (Obama), “Presidential Memorandum,” 81 Federal

Register 94213, December 5, 2016.

7 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National

Security Operations, March 12, 2018.

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Priority Procedures

Section 6 establishes expedited procedures for congressional consideration of a joint resolution or

bill introduced to authorize the use of armed forces under Section 5(b). They provide for

(a) a referral to the House Foreign Affairs [International Relations] or Senate Foreign

Relations Committee, the committee to report one measure not later than 24 calendar days

before the expiration of the 60 day period, unless the relevant House determines otherwise by

a vote;

(b) the reported measure to become the pending business of the relevant House and be voted

on within three calendar days, unless that House determines otherwise by vote; in the Senate

the debate is to be equally divided between proponents and opponents;

(c) a measure passed by one House to be referred to the relevant committee of the other

House and reported out not later than 14 calendar days before the expiration of the 60 day

period, the reported bill to become the pending business of that House and be voted on within

3 calendar days unless determined otherwise by a vote;

(d) conferees to file a report not later than four calendar days before the expiration of the 60

day period. If they cannot agree within 48 hours, the conferees are to report back in

disagreement, and such report is to be acted on by both Houses not later than the expiration of

the 60-day period.

Section 7 establishes similar priority procedures for a concurrent resolution to withdraw forces

under Section 5(c). For a recent use of these procedures see the section on the “Legislative Veto,”

below.

Interpretive Provisions

Section 8 sets forth certain interpretations relating to the Resolution. Section 8(a) states that

authority to introduce armed forces is not to be inferred from any provision of law or treaty unless

such law, or legislation implementing such treaty, 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 Resolution8 to justify hostilities abroad. This

resolution had stated that the United States was prepared to take all necessary steps, including use

of armed force, to assist certain nations, and it was cited by Presidents and many Members as

congressional authorization for the Vietnam war.

Section 8(b) states that further specific statutory authorization is not required

to permit members of United States Armed Forces to participate jointly with members of

the armed forces of one or more foreign countries in the headquarters operations of highlevel 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

8 P.L. 88-408, approved August 10, 1964; repealed in 1971 by P.L. 91-672.

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Atlantic Treaty Organization, (NATO), the North American Air Defense Command (NORAD)

and the United Nations command in Korea.

Section 8(c) defines the introduction of armed forces to include the assignment of armed forces to

accompany regular or irregular military forces of other countries when engaged, or potentially

engaged, in hostilities. The conference report on the War Powers Resolution explained that this

was language modified from a Senate provision requiring specific statutory authorization for

assigning members of the Armed Forces for such purposes. The report of the Senate Foreign

Relations Committee on its bill said

The purpose of this provision is to prevent secret, unauthorized military support activities

and to prevent a repetition of many of the most controversial and regrettable actions in

Indochina. The ever deepening ground combat involvement of the United States in South

Vietnam began with the assignment of U.S. “advisers” to accompany South Vietnamese

units on combat patrols; and in Laos, secretly and without congressional authorization, U.S.

“advisers” were deeply engaged in the war in northern Laos. 9

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.10 He argued that the legislative veto provision, permitting Congress to direct the

withdrawal of troops by concurrent resolution, was unconstitutional. He also argued that the

provision requiring withdrawal of troops after 60-90 days unless Congress passed legislation

authorizing such use was unconstitutional because it checked presidential powers without

affirmative congressional action. Every President since the enactment of the War Powers

Resolution has taken the position that it is an unconstitutional infringement on the President’s

authority as Commander in Chief.

War Powers of the 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

9 U.S. Congress. S. Rept. 93-220, p. 24.

10 United 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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into hostile situations without a declaration of war or other authorization by Congress, were the

reason for the enactment of the Resolution.

The congressional view was that the framers of the Constitution gave Congress the power to

declare war, meaning the ultimate decision whether or not to enter a war. Most Members of

Congress agreed that the President as Commander in Chief had power to lead the U.S. forces

once the decision to wage war had been made, to defend the nation against 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.11

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.12 Although the case

involved the use of a one-House legislative veto, the decision cast doubt on the validity of any

legislative veto device that was not presented to the President for signature. The Court held that to

accomplish what the House attempted to do in the Chadha case “requires action in conformity

with the express procedures of the Constitution’s prescription for legislative action: passage by a

majority of both Houses and presentment to the President.” On July 6, 1983, the Supreme Court

affirmed a lower court’s decision striking down a provision in another law13 that permitted

Congress to disapprove by concurrent (two-House) resolution.14

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.15 A

11 U.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: GPO, 1975. p. 69.

12 462 U.S. 919 (1983).

13 Federal Trade Commission Improvements Act of 1980.

14 Process Gas Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983).

15 See CRS Report, Effect of the Legislative Veto Decision on the Two-House Disapproval Mechanism to Terminate

U.S. Involvement in Hostilities Pursuant to Unilateral Presidential Action, by Raymond J. Celada, August 24, 1983

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concurrent resolution is adopted by both chambers, but it does not require presentment to the

President for signature or veto. Some legal analysts contend, nevertheless, that the War Powers

Resolution is in a unique category which differs from statutes containing a legislative veto over

delegated authorities.16 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.17

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 1976,18 except that it would be amendable and debate on a veto

limited to 20 hours.19 The priority procedures embraced by this provision applied in the Senate

only. Handling of such a joint resolution by the House was left to that Chamber’s discretion.

House Members attempted to use Section 5(c) to obtain a withdrawal of forces from Somalia. On

October 22, 1993, Representative Benjamin Gilman introduced H.Con.Res. 170, pursuant to

Section 5(c) of the War Powers Resolution, directing the President to remove U.S. Armed Forces

from Somalia by January 31, 1994. Using the expedited procedures called for in Section 5(c), the

Foreign Affairs Committee amended the date of withdrawal to March 31, 1994, (the date the

President had already agreed to withdraw the forces), and the House adopted H.Con.Res. 170.

The Foreign Affairs Committee reported:20

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

(out of print; available to congressional clients from the author upon request).

16 Gressman, 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 th Congress, 1st session Washington: GPO,

1983, pp. 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 pp. 1395-1398).

17 U.S. Congress. House. Committee on Foreign Affairs. U.S. Supreme Court Decision Concerning the Legislative

Veto, Hearings, p. 52.

18 P.L. 94-164, signed June 30, 1976.

19 Senate amendment to Section 1013, State Department Authorization Act for FY1984, P.L. 98-164, approved

November 22, 1983. Codified at 50 U.S.C., Section 1546a (1994).

20 H.Res. 293, November 5, 1993, p. 2. See below for further discussion of the Somalia case.

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would be nonbinding. 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.”21 The House report emphasized that the Resolution did not grant the President

any new authority or any freedom of action during the time limits that he did not already have.

Administration officials have objected that the provision would require the withdrawal of U.S.

forces simply because of congressional inaction during an arbitrary period. Since the resolution

recognizes that the President has independent authority to use armed forces in certain

circumstances, they state, “on what basis can Congress seek to terminate such independent

authority by the mere passage of time?”22 In addition, they argue, the imposition of a deadline

interferes with successful action, signals a divided nation and lack of resolve, gives the enemy a

basis for hoping that the President will be forced by domestic opponents to stop an action, and

increases risk to U.S. forces in the field. This issue has not been dealt with by the courts.

Major Cases and Issues Prior to the

Persian Gulf War

Perceptions of the War Powers Resolution tended to be set during the Cold War. During the 1970s

the issues revolved largely around the adequacy of consultation. The 1980s raised more serious

issues of presidential compliance and congressional willingness to use the War Powers Resolution

to restrain presidential action. With regard to Lebanon in 1983, Congress itself invoked the War

Powers Resolution, but in the 1987-1988 Persian Gulf tanker war Congress chose not to do so.

Following is a summary of major U.S. military actions and the issues they raised relating to the

War Powers Resolution from its enactment in 1973 to August 1990.23

21 The Senate bill had a time limit of 30 days. See report to accompany S. 440. S.Rept. 93-220, 93d Congress, 1 st

session. p. 28.

22 Sofaer, 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.

23 Appendix A lists in chronological order all reports to Congress related to the War Powers Resolution from the first

in 1975 through 2003. Appendix B lists representative instances of the deployment to or use of armed forces in

potentially hostile situations which were not reported under the Resolution. Appendix C gives the complete text of the

War Powers Resolution.

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Vietnam Evacuations and Mayaguez: What Is Consultation?

As the Vietnam War ended, on three occasions, in April 1975, President Ford used U.S. forces to

help evacuate American citizens and foreign nationals. In addition, in May 1975 President Ford

ordered the retaking of a U.S. merchant vessel, the SS Mayaguez which had been seized by

Cambodian naval patrol vessels. All four actions were reported to Congress citing the War Powers

Resolution. The report on the Mayaguez recapture was the only War Powers report to date to

specifically cite Section 4(a)(1), but the question of the time limit was moot because the action

was over by the time the report was filed.

Among the problems revealed by these first four cases were differences of opinion between the

two branches on the meaning of consultation. The Ford Administration held that it had met the

consultation requirement because the President had directed that congressional leaders be notified

prior to the actual commencement of the introduction of armed forces. The prevailing

congressional view was that consultation meant that the President seek congressional opinion,

and take it into account, prior to making a decision to commit armed forces.24

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 decisionmaking 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.25

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

24 U.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: GPO, 1975. p. 3.

25 U.S. Congress. Senate. Committee on Foreign Relations. The situation in Iran. Hearing, 96 th Congress, 2nd session.

May 8, 1980. Washington: GPO, 1980. p. iii.

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insurgents were organized and armed by Soviet bloc countries, particularly Cuba. By March 14,

the Administration had authorized a total of 54 advisers, including experts in combat training.

The President did not report the situation under the War Powers Resolution. A State Department

memorandum said a report was not required because the U.S. personnel were not being

introduced into hostilities or situations of imminent hostilities. The memorandum asserted that if

a change in circumstances occurred that raised the prospect of imminent hostilities, the

Resolution would be complied with. A justification for not reporting under Section 4(a)(2) was

that the military personnel being introduced were not equipped for combat.26 They would, it was

maintained, carry only personal side arms 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, 11 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.27 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.28

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.29 Other proposals declared that the commitment of U.S.

Armed Forces in El Salvador necessitated compliance with Section 4(a) of the War Powers

Resolution, requiring the President to submit a report.30

26

Congressional Record, March 5, 1981, V. 127, p. 3743.

27 Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982).

28 720 F. 2d 1355 (D.C.Cir. 1983), cert. denied, 467 U.S. 1251 (1984).

29 On 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 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.

30 H.Con.Res. 87, 97th Congress.

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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.”31 On July 26,

1983, the House rejected an amendment to the Defense Authorization bill (H.R. 2969) to limit the

number of active duty military advisers in El Salvador to 55, unless the President reported any

increase above that level under Section 4(a)(1) of the War Powers Resolution.32 Nevertheless, the

Administration in practice kept the number of trainers at 55.

Honduras: When Are Military Exercises More than Training?

Military exercises in Honduras in 1983 and subsequent years raised the question of when military

exercises should be reported under the War Powers Resolution. Section 4(a)(2) requires the

reporting of introduction of troops equipped for combat, but exempts deployments which relate

solely to training.

On July 27, 1983, President Reagan announced “joint training exercises” planned for Central

America and the Caribbean. The first contingent of U.S. troops landed in Honduras on August 8,

1983, and the series of ground and ocean exercises continued for several years, involving

thousands of ground troops plus warships and fighter planes.

The President did not report the exercises under the War Powers Resolution. He characterized the

maneuvers as routine and said the United States had been regularly conducting joint exercises

with Latin American countries since 1965. Some Members of Congress, on the other hand,

contended that the exercises were part of a policy to support the rebels or “contras” fighting the

Sandinista Government of Nicaragua, threatening that government, and increased the possibility

of U.S. military involvement in hostilities in Central America.

Several Members of Congress called for reporting the actions under the War Powers Resolution,

but some sought other vehicles for congressional control. In 1982, the Boland amendment to the

Defense Appropriations Act had already prohibited use of funds to overthrow the Government of

Nicaragua or provoke a military exchange between Nicaragua or Honduras.33 Variations of this

amendment followed in subsequent years. After press reports in 1985 that the option of invading

Nicaragua was being discussed, the Defense Authorization Act for Fiscal Year 1986 stated the

sense of Congress that U.S. Armed Forces should not be introduced into or over Nicaragua for

combat.34 In 1986, after U.S. helicopters ferried Honduran troops to the Nicaraguan border area,

Congress prohibited U.S. personnel from participating in assistance within land areas of

Honduras and Costa Rica within 120 miles of the Nicaraguan border, or from entering Nicaragua

to provide military advice or support to paramilitary groups operating in that country.35 Gradually

the issue died with peace agreements in the region and the electoral defeat of the Sandinista

regime in Nicaragua in 1990.

31 Report on S.J.Res. 158, Section III, S.Rept. 97-470, June 9, 1982.

32 Congressional Record, House, July 26, 1983, pp. 20924-20925.

33 The 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 FY1984.

34 Section 1451 of P.L. 99-145, approved November 8, 1985. A similar provision was contained in the defense

authorization for 1988-1989, Section1405 of P.L. 100-180, approved December 4, 1987.

35 Continuing Appropriations Resolution, P.L. 99-591, approved October 30, 1986. Continued in P.L. 100-202,

approved December 22, 1987.

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Lebanon: How Can Congress Invoke the War Powers Resolution?

The War Powers Resolution faced a major test when Marines sent to participate in a Multinational

Force in Lebanon in 1982 became the targets of hostile fire in August 1983. During this period

President Reagan filed three reports under the War Powers Resolution, but he did not report under

Section 4(a)(1) that the forces were being introduced into hostilities or imminent hostilities, thus

triggering the 60-90 day time limit.

On September 29, 1983, Congress passed the Multinational Force in Lebanon Resolution

determining that the requirements of Section 4(a)(1) of the War Powers Resolution became

operative on August 29, 1983.36 In the same resolution, Congress authorized the continued

participation of the Marines in the Multinational Force for 18 months. The resolution was a

compromise between Congress and the President. Congress obtained the President’s signature on

legislation invoking the War Powers Resolution for the first time, but the price for this concession

was a congressional authorization for the U.S. troops to remain in Lebanon for 18 months.

The events began on July 6, 1982, when President Reagan announced he would send a small

contingent of U.S. troops to a multinational force for temporary peacekeeping in Lebanon.

Chairman of the House Foreign Affairs Committee Clement Zablocki wrote President Reagan

that if such a force were sent, the United States would be introducing forces into imminent

hostilities and a report under Section 4(a)(1) would be required. When the forces began to land on

August 25, President Reagan reported but did not cite Section 4(a)(1) and said the agreement with

Lebanon ruled out any combat responsibilities. After overseeing the departure of the Palestine

Liberation Organization force, the Marines in the first Multinational Force left Lebanon on

September 10, 1982.

The second dispatch of Marines to Lebanon began on September 20, 1982. President Reagan

announced that the United States, France, and Italy had agreed to form a new multinational force

to return to Lebanon for a limited period of time to help maintain order until the lawful authorities

in Lebanon could discharge those duties. The action followed three events that took place after

the withdrawal of the first group of Marines: the assassination of Lebanon President-elect Bashir

Gemayel, the entry of Israeli forces into West Beirut, and the massacre of Palestinian civilians by

Lebanese Christian militiamen.

On September 29, 1982, President Reagan submitted a report that 1,200 Marines had begun to

arrive in Beirut, but again he did not cite Section 4(a)(1), saying instead that the American force

would not engage in combat. As a result of incidents in which Marines were killed or wounded,

there was again controversy in Congress on whether the President’s report should have been filed

under Section 4(a)(1). In mid-1983 Congress passed the Lebanon Emergency Assistance Act of

1983 requiring statutory authorization for any substantial expansion in the number or role of U.S.

Armed Forces in Lebanon. It also included Section 4(b) that stated:

Nothing in this section is intended to modify, limit, or suspend any of the standards and

procedures prescribed by the War Powers Resolution of 1983.37

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

36 P.L. 98-119, approved October 12, 1983.

37 P.L. 98-43, approved June 27, 1983.

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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 FY1984 (H.J.Res. 367), sponsored by Representative Clarence Long,

providing that after 60 days, funds could not be “obligated or expended for peacekeeping

activities in Lebanon by United States Armed Forces,” unless the President had submitted a report

under Section 4(a)(1) of the War Powers Resolution. A similar amendment was later rejected by

the full body, but it reminded the Administration of possible congressional actions.

On September 20, congressional leaders and President Reagan agreed on a compromise

resolution invoking Section 4(a)(1) and authorizing the Marines to remain for 18 months. The

resolution became the first legislation to be handled under the expedited procedures of the War

Powers Resolution. On September 28, the House passed H.J.Res. 364 by a vote of 270 to 161.

After 3 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 18 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.38

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 1,900 U.S. Army and Marine Corps

personnel in Grenada. He said that the action was in response to a request from the Organization

of Eastern Caribbean States which had formed a collective security force to restore order in

Grenada, where anarchic conditions had developed, and to protect the lives of U.S. citizens.

Many Members of Congress contended that the President should have cited Section 4(a)(1) of the

War Powers Resolution, which would have triggered the 60-90 day time limitation. On November

1, 1983, the House supported this interpretation when it adopted, by a vote of 403-23, H.J.Res.

402 declaring that the requirements of Section 4(a)(1) had become operative on October 25. The

Senate did not act on this measure and a conference was not held. The Senate had adopted a

similar measure on October 28 by a vote of 64 to 20, but on November 17 the provision was

38 P.L. 98-119, signed October 12, 1983.

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deleted in the conference report on the debt limit bill to which it was attached.39 Thus both

Houses had voted to invoke Section 4(a)(1), but the legislation was not completed.

On November 17, White House spokesman Larry Speakes said the Administration had indicated

that there was no need for action as the combat troops would be out within the 60-90 day time

period. Speaker Thomas O’Neill took the position that, whether or not Congress passed specific

legislation, the War Powers Resolution had become operative on October 25. By December 15,

1983, all U.S. combat troops had been removed from Grenada.

Eleven Members of Congress filed a suit challenging the constitutionality of President Reagan’s

invasion of Grenada. A district judge held that courts should not decide such cases unless the

entire Congress used the institutional remedies available to it.40 An appellate court subsequently

held that the issue was moot because the invasion had been ended.41

Libya: Should Congress Help Decide on Raids to Undertake in

Response to International Terrorism?

The use of U.S. forces against Libya in 1986 focused attention on the application of the War

Powers Resolution to use of military force against international terrorism.

Tensions between the United States and Libya under the leadership of Col. Muammar Qadhafi

had been mounting for several years, particularly after terrorist incidents at the Rome and Vienna

airports on December 27, 1985. On January 7, 1986, President Reagan said that the Rome and

Vienna incidents were the latest in a series of brutal terrorist acts committed with Qadhafi’s

backing that constituted armed aggression against the United States.

The War Powers issue was first raised on March 24, 1986, when Libyan forces fired missiles at

U.S. aircraft operating in the Gulf of Sidra. In response, the United States fired missiles at Libyan

vessels and at Sirte, the Libyan missile site involved. The U.S. presence in the Gulf of Sidra, an

area claimed by Libya, was justified as an exercise to maintain freedom of the seas, but it was

widely considered a response to terrorist activities.

Subsequently, on April 5, 1986, a terrorist bombing of a discotheque in West Berlin occurred and

an American soldier was killed. On April 14 President Reagan announced there was irrefutable

evidence that Libya had been responsible, and U.S. Air Force planes had conducted bombing

strikes on headquarters, terrorist facilities, and military installations in Libya in response.

The President reported both cases to Congress although the report on the bombing did not cite

Section 4(a)(1) and the Gulf of Sidra report did not mention the War Powers Resolution at all.

Since the actions were short lived, there was no issue of force withdrawal, but several Members

introduced bills to amend the War Powers Resolution. One bill called for improving consultation

by establishing a special consultative group in Congress.42 Others called for strengthening the

President’s hand in combating terrorism by authorizing the President, notwithstanding any other

39 U.S. Congress. H.Rept. 98-566 on H.J.Res. 308; Senate amendment numbered 3. Congressional Record, November

17, 1983, p. H10189.

40 Conyers v. Reagan, 578 F. Supp. 323 (D.D.C. 1984).

41 Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985).

42 S.J.Res. 340, introduced May 8, 1986. The bill was not acted upon, but the proposal was later incorporated in other

proposed amendments. See below, section on amendments.

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provision of law, to use all measures he deems necessary to protect U.S. persons against terrorist

threats.43

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.44 None of

the reports were submitted under Section 4(a)(1) or acknowledged that U.S. forces had been

introduced into hostilities or imminent hostilities. The Reagan administration contended that the

military incidents in the Persian Gulf, or isolated incidents involving defensive reactions, did not

add up to hostilities or imminent hostilities as envisaged in the War Powers Resolution. It held

that “imminent danger” pay which was announced for military personnel in the Persian Gulf on

August 27, 1987, did not trigger Section 4(a)(1). Standards for danger pay, namely, “subject to the

threat of physical harm or danger on the basis of civil insurrection, civil war, terrorism, or

wartime conditions,” were broader than for hostilities of the War Powers Resolution, and had

been drafted to be available in situations to which the War Powers Resolution did not apply.45

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.46 The decisive votes on the subject

took place in the Senate. On September 18, 1987, the Senate voted 50-41 to table an amendment

to the Defense authorization bill (S. 1174) to apply the provisions of the War Powers Resolution.

The Senate also sustained points of order against consideration of S.J.Res. 217, which would have

43 S. 2335 and H.R. 4611, Anti-Terrorism Act of 1986, introduced April 17, 1986. Not acted upon.

44 For the reports, see list above under section on “Reporting Requirements.”

45 Questions submitted to Department of State and responses thereto, March 30, 1988, in War Powers Resolution,

Relevant Documents, Correspondence, Reports, pp. 97-99.

46 Bills 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.

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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 approach 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.47

The House did not take action on the bill.

As in the case of El Salvador, some Members took the War Powers issue to court. On August 7,

1987, Representative Lowry and 110 other Members of Congress filed suit in the U.S. District

Court for the District of Columbia, asking the court to declare that a report was required under

Section 4(a)(1). On December 18, 1987, the court dismissed the suit, holding it was a

nonjusticiable political question, and that the plaintiffs’ dispute was “primarily with fellow

legislators.”48

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.”49 This was too late for congressional views

to be weighed in on the initial decision, after which it became more difficult to alter the policy.

Subsequently, however, considerable consultation developed and the President met with various

congressional leaders prior to some actions such as the retaliatory actions in April 1988 against an

Iranian oil platform involved in mine-laying.

With recurring military incidents, some Members of Congress took the position that the War

Powers Resolution was not being complied with, unless the President reported under Section

4(a)(1) or Congress itself voted to invoke the Resolution. Other Members contended the

Resolution was working by serving as a restraint on the President, who was now submitting

reports and consulting with Congress.50 Still other Members suggested the Persian Gulf situation

was demonstrating the need to amend the War Powers Resolution.

As a result of the Persian Gulf situation, in the summer of 1988 both the House Foreign Affairs

Committee and the Senate Foreign Relations Committee, which established a Special

Subcommittee on War Powers, undertook extensive assessments of the War Powers Resolution.

Interest in the issue waned after a cease-fire between Iran and Iraq began on August 20, 1988, and

the United States reduced its forces in the Persian Gulf area.

47 Byrd-Warner amendment to S.J.Res. 194, adopted by Senate October 21, 1987.

48 Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987). See also CRS Report RL30352, War Powers Litigation Initiated

by Members of Congress Since the Enactment of the War Powers Resolution, by Michael John Garcia.

49 Weinberger, Caspar W., Secretary of Defense, A Report to the Congress on Security Arrangements in the Persian

Gulf, June 15, 1987, p. 14.

50 When asked about abiding by the War Powers Resolution, President Reagan said “we are 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.

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Invasion of Panama: Why Was the War Powers Issue Not Raised?

On December 20, 1989, President George H.W. 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. Some 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.51 The

Senate had adopted an amendment supporting the President’s use of appropriate diplomatic,

economic, and military options “to restore constitutional government to Panama and to remove

General Noriega from his illegal control of the Republic of Panama,” but had defeated an

amendment authorizing the President to use U.S. military force to secure the removal of General

Noriega “notwithstanding any other provision of law.”52

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. The President’s action in Panama was 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

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 (U.N.). Under the

auspices of U.N. Security Council resolutions, U.S. forces were deployed in Kuwait and Iraq,

Somalia, former Yugoslavia/Bosnia/Kosovo, 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.53

51 P.L. 101-162, signed November 21, 1989.

52 Amendments to National Drug Control Strategy bill, S. 1711, October 5, 1989.

53 In that case, the Soviet Union had absented itself from the Council temporarily, and the Security Council requested

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The more basic issue—under what circumstances congressional authorization is required for U.S.

participation in U.N. military operations—is an unfinished debate remaining from 1945. Whether

congressional authorization is required depends on the types of U.N. action and is governed by

the U.N. Participation Act (P.L. 79-264, as amended), as well as by the War Powers Resolution

and war powers under the Constitution. Appropriations action by Congress also may be

determinative as a practical matter.

For armed actions under Articles 42 and 43 of the United Nations Charter, Section 6 of the U.N.

Participation Act authorizes the President to negotiate special agreements with the Security

Council “which shall be subject to the approval of the Congress by appropriate Act or joint

resolution,” providing for the numbers and types of armed forces and facilities to be made

available to the Security Council. Once the agreements have been concluded, further

congressional authorization is not necessary, but no such agreements have been concluded.

Section 7 of the United Nations Participation Act, added in 1949 by P.L. 81-341, authorizes the

detail of up to 1,000 personnel to serve in any noncombatant capacity for certain U.N. peaceful

settlement activities. The United States has provided personnel to several U.N. peacekeeping

missions, such as observers to the U.N. Truce Supervision Organization in Palestine since 1948,

that appear to fall within the authorization in Section 7 of the Participation Act. Controversy has

arisen when larger numbers of forces have been deployed or when it appears the forces might be

serving as combatants.

The War Powers Resolution neither excludes United Nations actions from its provisions nor

makes any special procedures for them. Section 8(a)(2) states that authority to introduce U. S.

Armed Forces into hostilities shall not be inferred from any treaty unless it is implemented by

legislation specifically authorizing the introduction and stating that it is intended to constitute

specific statutory authorization within the meaning of the War Powers resolution.54 One purpose

of this provision was to ensure that both Houses of Congress be affirmatively involved in any

U.S. decision to engage in hostilities pursuant to a treaty, since only the Senate approved a

treaty.55

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.56 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.

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.”

54 Such 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.

55 U.S. Congress. Senate. Committee on Foreign Relations. War Powers; report to accompany S. 440. June 14, 1973.

S.Rept. 93-220.

56 Section 8153, Department of Defense Appropriation Act for FY1994, H.R. 3116, P.L. 103-139, signed November

11, 1993.

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Armed Forces in multinational peacekeeping missions, proposals to conclude military agreements

with the U.N. Security Council under Article 43 of the U.N. Charter, and the applicability of the

War Powers Resolution and the U.N. Participation Act.57 In 1994 and 1995, Congress attempted

to gain a greater role in U.N. and other peacekeeping operations through authorization and

appropriation legislation. A major element of the House Republicans’ Contract with America,

H.R. 7, would have placed notable constraints on presidential authority to commit U.S. forces to

international peacekeeping operations. Senator Dole’s S. 5, The Peace Powers Act, introduced in

January 1995, would have also placed greater legislative controls on such operations. General and

specific funding restrictions and presidential reporting requirements were passed for

peacekeeping operations underway or in prospect. Some of these legislative enactments led to

presidential vetoes. These representative legislative actions are reviewed below as they apply to

given cases.58

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 had 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 George H.W. Bush reported to Congress

“consistent with the War Powers Resolution” that he had deployed U.S. Armed Forces to the

region prepared to take action with others to deter Iraqi aggression. He did not cite Section

4(a)(1) and specifically stated, “I do not believe involvement in hostilities is imminent.”

The President did not consult with congressional leaders prior to the deployment, but both houses

of Congress had adopted legislation supporting efforts to end the Iraqi occupation of Kuwait,

particularly using economic sanctions and multilateral efforts. On August 2, shortly before its

recess, the Senate by a vote of 97-0 adopted S.Res. 318 urging the President “to act immediately,

using unilateral and multilateral measures, to seek the full and unconditional withdrawal of all

Iraqi forces from Kuwaiti territory” and to work for collective international sanctions against Iraq

including, if economic sanctions prove inadequate, “additional multilateral actions, under Article

42 of the United Nations Charter, involving air, sea, and land forces as may be needed....” Senate

Foreign Relations Committee Chairman Pell stressed, however, that the measure did not authorize

unilateral U.S. military actions. Also on August 2, the House passed H.R. 5431 condemning the

Iraqi invasion and calling for an economic embargo against Iraq.

The United Nations imposed economic sanctions against Iraq on August 7, and the United States

and United Kingdom organized an international naval interdiction effort.59 Later, on August 25,

57 Section 1502 (11), Defense Authorization Act for FY1994, P.L. 103-160, signed November 30, 1993.

58 For background see CRS Report RL33557, Peacekeeping and Related Stability Operations: Issues of U.S. Military

Involvement, by Nina M. Serafino.

59 On 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.”

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the U.N. Security Council authorized “such measures as may be necessary” to halt shipping and

verify cargoes that might be going to Iraq.

Both Houses adopted measures supporting the deployment, but neither measure was enacted. On

October 1, 1990, the House passed H.J.Res. 658 supporting the action and citing the War Powers

Resolution without stating that Section 4(a)(1) had become operative. The resolution quoted the

President’s statement that involvement in hostilities was not imminent. Representative Fascell

stated that H.J.Res. 658 was not to be interpreted as a Gulf of Tonkin resolution that granted the

President open-ended authority, and that it made clear that “a congressional decision on the issue

of war or peace would have to be made through joint consultation.” The Senate did not act on

H.J.Res. 658.

On October 2, 1990, the Senate by a vote of 96-3 adopted S.Con.Res. 147, stating that “Congress

supports continued action by the President in accordance with the decisions of the United Nations

Security Council and in accordance with United States constitutional and statutory processes,

including the authorization and appropriation of funds by the Congress, to deter Iraqi aggression

and to protect American lives and vital interest in the region.” As in the House, Senate leaders

emphasized that the resolution was not to be interpreted as an open-ended resolution similar to

the Gulf of Tonkin resolution. The resolution made no mention of the War Powers Resolution.

The House did not act on S.Con.Res. 147. Congress also supported the action by appropriating

funds for the preparatory operation, called Operation Desert Shield, and later for war activities

called Operation Desert Storm.

Some Members introduced legislation to establish a special consultation group, but the

Administration objected to a formally established group. On October 23, 1990, Senate Majority

Leader Mitchell announced that he and Speaker Foley had designated Members of the joint

bipartisan leadership and committees of jurisdiction to make themselves available as a group for

consultation on developments in the Persian Gulf. By this time U.S. land, naval, and air forces

numbering more than 200,000 had been deployed.

After the 101st Congress had adjourned, President Bush on November 8, 1990, ordered an

estimated additional 150,000 troops to the Gulf. He incurred considerable criticism because he

had not informed the consultation group of the buildup although he had met with them on

October 30. On November 16, President Bush sent a second report to Congress describing the

continuing and increasing deployment of forces to the region. He stated that his opinion that

hostilities were not imminent had not changed. The President wrote, “The deployment will ensure

that the coalition has an adequate offensive military option should that be necessary to achieve

our common goals.” By the end of the year, approximately 350,000 U.S. forces had been

deployed to the area.

As the prospect of a war without congressional authorization increased, on November 20, 1990,

Representative Ron Dellums and 44 other Democratic Members of Congress sought a judicial

order enjoining the President from offensive military operations in connection with Operation

Desert Shield unless he consulted with and obtained an authorization from Congress. On

November 26, 11 prominent law professors filed a brief in favor of such a judicial action, arguing

that the Constitution clearly vested Congress with the authority to declare war and that federal

judges should not use the political questions doctrine to avoid ruling on the issue. The American

Civil Liberties Union also filed a memorandum in favor of the plaintiffs. On December 13, Judge

Harold Greene of the federal district court in Washington denied the injunction, holding that the

controversy was not ripe for judicial resolution because a majority of Congress had not sought

relief and the executive branch had not shown sufficient commitment to a definitive course of

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action.60 However, throughout his opinion Judge Greene rejected the Administration’s arguments

for full presidential war powers.

On November 29, 1990, U.N. Security Council Resolution 678 authorized member states to use

“all necessary means” to implement the Council’s resolutions and restore peace and security in

the area, unless Iraq complied with the U.N. resolutions by January 15, 1991. As the deadline for

Iraqi withdrawal from Kuwait neared, President Bush indicated that if the Iraqi forces did not

withdraw from Kuwait, he was prepared to use force to implement the U.N. Security Council

resolutions. Administration officials contended that the President did not need any additional

congressional authorization for this purpose.61

After the 102nd Congress convened, on January 4, 1991, House and Senate leaders announced

they would debate U.S. policy beginning January 10. A week before the January 15 deadline, on

January 8, 1991, President Bush, in a letter to the congressional leaders, requested a congressional

resolution supporting the use of all necessary means to implement U.N. Security Council

Resolution 678. He stated that he was “determined to do whatever is necessary to protect

America’s security” and that he could “think of no better way than for Congress to express its

support for the President at this critical time.” It is noteworthy that the President’s request for a

resolution was a request for congressional “support” for his undertaking in the Persian Gulf, not

for “authority” to engage in the military operation. In a press conference on January 9, 1991,

President Bush reinforced this distinction in response to questions about the use of force

resolution being debated in Congress. He was asked whether he thought he needed the resolution,

and if he lost on it would he feel bound by that decision. President Bush in response stated: “I

don’t think I need it.... I feel that I have the authority to fully implement the United Nations

resolutions.” He added that he felt that he had “the constitutional authority—many attorneys

having so advised me.”62

On January 12, 1991, both houses passed the “Authorization for Use of Military Force Against

Iraq Resolution” (P.L. 102-1).63 Section 2(a) authorized the President to use U.S. Armed Forces

pursuant to U.N. Security Council Resolution 678 to achieve implementation of the earlier

Security Council resolutions. Section 2(b) required that first the President would have to report

that the United States had used all appropriate diplomatic and other peaceful means to obtain

compliance by Iraq with the Security Council resolution and that those efforts had not been

successful. Section 2(c) stated that it was intended to constitute specific statutory authorization

within the meaning of Section 5(b) of the War Powers Resolution. Section 3 required the

President to report every 60 days on efforts to obtain compliance of Iraq with the U.N. Security

Council resolution.

In his statement made after signing H.J.Res. 77 into law, President Bush said the following: “As I

made clear to congressional leaders at the outset, my request for congressional support did not,

and my signing this resolution does not, constitute any change in the long-standing positions of

60 Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).

61 Statement 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. September 11-December 3, 1990, S.Hrg. 101-1071, pp.

701-702.

62 Weekly Compilation of Presidential Documents. January 14, 1991. Vol. 27, no. 2, pp.17-18; pp. 24-25.

63 The 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.

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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.”64

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 many Members of Congress strongly supported the President as

Commander in Chief in his conduct of the war. On March 19, 1991, President Bush reported to

Congress that the military operations had been successful, Kuwait had been liberated, and combat

operations had been suspended on February 28, 1991.

Prior to passage of P.L. 102-1, some observers questioned the effectiveness of the War Powers

Resolution on grounds that the President had begun the action, deployed hundreds of thousands

of troops without consultation of Congress, and was moving the Nation increasingly close to war

without congressional authorization. After the passage of P.L. 102-1 and the war had begun,

Chairman of the House Committee on Foreign Affairs Fascell took the position that “the War

Powers Resolution is alive and well”; the President had submitted reports to Congress, and

Congress, in P.L. 102-1, had provided specific statutory authorization for the use of force. In his

view, the strength and wisdom of the War Powers Resolution was that it established a process by

which Congress could authorize the use of force in specific settings for limited purposes, short of

a total state of war.

The question is sometimes raised why Congress did not declare war against Iraq. Speaker Foley

told the National Press Club on February 7, 1991, that “The reason we did not declare a formal

war was not because there is any difference I think in the action that was taken and in a formal

declaration of war with respect to military operations, but because there is some question about

whether we wish to excite or enact some of the domestic consequences of a formal declaration of

war—seizure of property, censorship, and so forth, which the President neither sought nor

desired.”

Iraq-Post Gulf War: How Long Does an Authorization Last?

After the end of Operation Desert Storm, U.S. military forces were used to deal with three

continuing situations in Iraq. These activities raised the issue of how long a congressional

authorization for the use of force lasts.

The first situation resulted from the Iraqi government’s repression of Kurdish and Shi’ite groups.

U.N. Security Council Resolution 688 of April 5, 1991, condemned the repression of the Iraqi

civilian population and appealed for contributions to humanitarian relief efforts. On May 17,

1991, President George H.W. 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

64 Weekly 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.

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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 noncooperation on January 14, 1992, and May 15, 1992.

On July 16, 1992, President Bush reported particular concern about the refusal of Iraqi authorities

to grant U.N. inspectors access to the Agricultural Ministry. The President consulted

congressional leaders on July 27, and in early August the United States began a series of military

exercises to take 5,000 U.S. troops to Kuwait. On September 16, 1992, the President reported,

“We will remain prepared to use all necessary means, in accordance with U.N. Security Council

resolutions, to assist the United Nations in removing the threat posed by Iraq’s chemical,

biological, and nuclear weapons capability.”

The third situation was related to both of the earlier ones. On August 26, 1992, the United States,

Britain, and France began a “no-fly” zone, banning Iraqi fixed wing and helicopter flights south

of the 32nd parallel and creating a limited security zone in the south, where Shi’ite groups were

concentrated. After violations of the no-fly zones and various other actions by Iraq, on January

13, 1993, the Bush Administration announced that aircraft from the United States and coalition

partners had attacked missile bases in southern Iraq and that the United States was deploying a

battalion task force to Kuwait to underline the U.S. continuing commitment to Kuwait’s

independence. On January 19, 1993, President Bush reported to Congress that U.S. aircraft had

shot down an Iraqi aircraft on December 27, 1992, and had undertaken further military actions on

January 13, 17, and 18.

President Clinton said on January 21, 1993, that the United States would adhere to the policy

toward Iraq set by the Bush Administration. On January 22 and 23, April 9 and 18, June 19, and

August 19, 1993, U.S. aircraft fired at targets in Iraq after pilots sensed Iraqi radar or anti-aircraft

fire directed at them. On September 23, 1993, President Clinton reported that since the August 19

action, the Iraqi installation fired upon had not displayed hostile intentions.

In a separate incident, on June 28, 1993, President Clinton reported to Congress “consistent with

the War Powers Resolution” that on June 26 U.S. naval forces at his direction had launched a

Tomahawk cruise missile strike on the Iraqi Intelligence Service’s main command and control

complex in Baghdad and that the military action was completed upon the impact of the missiles.

He said the Iraqi Intelligence Service had planned the failed attempt to assassinate former

President Bush during his visit to Kuwait in April 1993.

The question was raised as to whether the Authorization for the Use of Force in Iraq (P.L. 102-1)

authorized military actions after the conclusion of the war. P.L. 102-1 authorized the President to

use U.S. Armed Forces pursuant to U.N. Security Council Resolution 678 to achieve

implementation of previous Security Council Resolutions relating to Iraq’s invasion of Kuwait.

The cease-fire resolution, Security Council Resolution 687, was adopted afterwards and therefore

not included in Resolution 678.

Congress endorsed the view that further specific authorization was not required for U.S. military

action to maintain the cease-fire 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

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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. 1021. The issue of congressional authorization was debated again in 1998. On March 31, 1998, the

House passed a Supplemental Appropriations bill (H.R. 3579) that would have banned the use of

funds appropriated in it for the conduct of offensive operations against Iraq, unless such

operations were specifically authorized by law. This provision was dropped in the conference

with the Senate.

A more broad-gauged approach to the issue of congressional authorization of military force was

attempted in mid-1998. On June 24, 1998, the House passed H.R. 4103, the Defense Department

Appropriations bill for FY1999, with a provision by Representative David Skaggs that banned the

use of funds appropriated or otherwise made available by this act “to initiate or conduct offensive

military operations by United States Armed Forces except in accordance with the war powers

clause of the Constitution (Article 1, Section 8), which vests in Congress the power to declare and

authorize war and to take certain specified, related actions.” The Skaggs provision was stricken

by the House-Senate conference committee on H.R. 4103.

As events developed, beginning in late 1998, and continuing into the period prior to the U.S.

military invasion of Iraq in March 2003, the United States conducted a large number of ad-hoc air

attacks against Iraqi ground installations and military targets in response to violations of the

northern and southern “no-fly zones” by the Iraqis, and threatening actions taken against U.S. and

coalition aircraft enforcing these “no-fly” sectors. Congressional authorization to continue these

activities was not sought by the President, nor were these many incidents reported under the War

Powers Resolution. The “no-fly zones” activities were terminated following the 2003 War with

Iraq.

Somalia: When Does Humanitarian Assistance Require

Congressional Authorization?

In Somalia, the participation of U.S. military forces in a U.N. operation to protect humanitarian

assistance became increasingly controversial as fighting and casualties increased and the

objectives of the operation appeared to be expanding.

On December 4, 1992, President George H.W. 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

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themselves. They would also have the support of any additional U.S. forces necessary. By midJanuary, U.S. forces in Somalia numbered 25,000.

Since the President did not cite Section 4(a)(1), the 60-day time limit was not necessarily

triggered. By February, however, the U.S. force strength was being reduced, and it was

announced the United States expected to turn over responsibility for protecting humanitarian

relief shipments in Somalia to a U.N. force that would include U.S. troops. On March 26, 1993,

the Security Council adopted Resolution 814 expanding the mandate of the U.N. force and

bringing about a transition from a U.S.-led force to a U.N.-led force (UNOSOM II). By the

middle of May, when the change to U.N. control took place, the U.S. forces were down to

approximately 4,000 troops, primarily logistics and communications support teams, but also a

rapid deployment force of U.S. Marines stationed on Navy ships.

Violence within Somalia began to increase again. On June 5, 1993, attacks killed 23 Pakistani

peacekeepers, and a Somali regional leader, General Aidid, was believed responsible. The next

day the U.N. Security Council adopted Resolution 837 reaffirming the authority of UNOSOM II

to take all necessary measures against those responsible for the armed attacks. On June 10, 1993,

President Clinton reported “consistent with the War Powers Resolution” that the U.S. Quick

Reaction Force had executed military strikes to assist UNOSOM II in quelling violence against it.

On July 1, President Clinton submitted another report, not mentioning the War Powers

Resolution, describing further air and ground military operations aimed at securing General

Aidid’s compound and neutralizing military capabilities that had been an obstacle to U.N. efforts

to deliver humanitarian relief and promote national reconstruction.

From the beginning, a major issue for Congress was whether to authorize U.S. action in Somalia.

On February 4, 1993, the Senate had passed S.J.Res. 45 that would authorize the President to use

U.S. Armed Forces pursuant to U.N. Security Council Resolution 794. S.J.Res. 45 stated it was

intended to constitute the specific statutory authorization under Section 5(b) of the War Powers

Resolution. On May 25, 1993, the House amended S.J.Res. 45 to authorize U.S. forces to remain

for one year. S.J.Res. 45 was then sent to the Senate for its concurrence, but the Senate did not act

on the measure.

As sporadic fighting resulted in the deaths of Somali and U.N. forces, including Americans,

controversy over the operation intensified, and Congress took action through other legislative

channels. In September 1993 the House and Senate adopted amendments to the Defense

Authorization Act for FY1994 asking that the President consult with Congress on policy toward

Somalia, and report the goals, objectives, and anticipated jurisdiction of the U.S. mission in

Somalia by October 15, 1993; the amendments expressed the sense that the President by

November 15, 1993, should seek and receive congressional authorization for the continued

deployment of U.S. forces to Somalia.65 On October 7, the President consulted with congressional

leaders from both parties for over two hours on Somalia policy. On October 13, President Clinton

sent a 33-page report to Congress on his Somalia policy and its objectives.

Meanwhile, on October 7 President Clinton said that most U.S. forces would be withdrawn from

Somalia by March 31, 1994. To ensure this, the Defense Department Appropriations Act for

FY1994, cut off funds for U.S. military operations in Somalia after March 31, 1994, unless the

President obtained further spending authority from Congress.66 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

65 Section 1512, P.L. 103-160, signed November 30, 1993.

66 Section 8151 of P.L. 103-139, signed November 11, 1993.

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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, 1994.67 The Senate did not act on this

nonbinding 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.

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

67 For additional discussion of H.Con.Res. 170, see section on “Legislative Veto,” above.

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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 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.68 The

mission was established under U.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

68 The 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.

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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

Appropriations Act for FY1994, 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 “nofly zone” under the North Atlantic Treaty Organization (NATO) shot down 4 Serbian Galeb

planes. On April 12, 1994, the President reported that on April 10 and 11, following shelling of

Gorazde, one of the “safe areas,” and a decision by U.N. and NATO leaders, U.S. planes bombed

Bosnian Serbian nationalist positions around Gorazde. On August 22, 1994, President Clinton

similarly reported that on August 5, U.S. planes under NATO had strafed a Bosnian Serb gun

position in an exclusion zone. On September 22, 1994, two British and one U.S. aircraft bombed

a Serbian tank in retaliation for Serb attacks on U.N. peacekeepers near Sarajevo; and on

November 21 more than 30 planes from the United States, Britain, France, and the Netherlands

bombed the runway of a Serb airfield in Croatia.

As the conflict in Bosnia continued, 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.

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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.”

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 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-theSenate amendment to H.R. 2076, the FY1996 State, Commerce, Justice Appropriations bill,

sponsored by Senator Judd Gregg 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 9page 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

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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.

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

nonbinding 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 the

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

nonbinding resolution of Senators Hutchison and Inhofe. This resolution stated that “Congress

opposes 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.

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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 nonmilitary 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, 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.”69 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 Representative

Tom Campbell, directing the President, pursuant to Section 5(c) of the War Powers Resolution to

remove United States Armed Forces from the Republic of Bosnia and Herzegovina (H.Rept. 105442).70

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 was the focus of a major policy debate over the purpose

and scope of U.S. military involvement in Kosovo. The President’s action to commit forces to the

69 For additional background see CRS Report RS22324, Bosnia: Overview of Current Issues, by Julie Kim.

70 For additional background see CRS Report RL32392, Bosnia and Herzegovina: Issues for U.S. Policy, by Steven

Woehrel, and CRS Report RL32282, Bosnia and Kosovo: U.S. Military Operations, by Steve Bowman.

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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

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 nonbinding 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.71

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).”72 The

House, meanwhile, 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

71 Campbell v. Clinton. Civil Action no. 99-1072.

72 The 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).

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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.73 On May 26, 1999, 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.74

On May 25, 1999, the 60th day had passed since the President notified Congress of his actions

regarding U.S. participation in military operations in Kosovo. Representative Campbell, and

those who joined his suit, noted to the federal Court that this was a clear violation of the language

of the War Powers Resolution stipulating a withdrawal of U.S. forces from the area of hostilities

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 Representative

Campbell and others that sought to have the court rule that President Clinton was in violation of

the War Powers Resolution and the Constitution by conducting military activities in Yugoslavia

without having received prior authorization from Congress. The judge ruled that Representative

Campbell and the other congressional plaintiffs lacked legal standing to bring the suit.75 On June

24, 1999, Representative Campbell appealed the ruling to the U.S. Court of Appeals for the

District of Columbia. The appeals court subsequently agreed to hear the case on an expedited

basis before Judges Silberman, Randolph, and Tatel. On February 18, 2000, the appeals court

affirmed the opinion of the District Court that Representative Campbell and his co-plaintiffs

lacked standing to sue the President.76 On May 18, 2000, Representative Campbell and 30 other

Members of Congress appealed this decision to the United States Supreme Court. On October 2,

2000, the United States Supreme Court, without comment, refused to hear the appeal of

Representative Campbell, thereby letting stand the holding of the U.S. Court of Appeals.77

While Representative Campbell’s litigation was continuing, Yugoslavia, on June 10, 1999, 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 FY2000FY2001, 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

73 U.S. Congressional Record, Senate, May 24, 1999, pp. S5809-S5840 (daily edition).

74 U.S. Congressional Record, Senate, May 26, 1999, pp. S6034-S6040 (daily edition).

75 See the June 8, 1999, decision of Judge Friedman of the U.S. District Court for the District of Columbia at 52 F.

Supp. 2d 34 (1999).

76 Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

77 Campbell v. Clinton, cert. denied, 531 U.S. 815 October 2, 2000).

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(KFOR)” 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 (a

position subsequently affirmed the following year by the Appeals Court, and the U.S. Supreme

Court) attempting to stop presidential military action in Yugoslavia in the absence of prior

congressional authorization under the War Powers Resolution.78

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 the 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.

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

78 For detailed discussion of major issues see CRS Report RL31053, Kosovo and U.S. Policy:

Background to Independence, by Julie Kim and Steven Woehrel, and CRS Report RL30352, War Powers Litigation

Initiated by Members of Congress Since the Enactment of the War Powers Resolution, by Michael John Garcia.

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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 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 Affairs

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

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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 10 armed Haitian resisters in a fire-fight.

On September 19, the House agreed to H.Con.Res. 290 commending the President and the special

delegation to Haiti, and supporting the prompt and orderly withdrawal of U.S. forces from Haiti

as soon as possible; on September 19, the Senate agreed to a similar measure, S.Res. 259. On

October 3, 1994, the House Foreign Affairs Committee reported H.J.Res. 416 authorizing the

forces in Haiti until March 1, 1995, and providing procedures for a joint resolution to withdraw

the forces. In House debate on October 6 the House voted against the original contents and for the

Dellums substitute. As passed, H.J.Res. 416 stated the sense that the President should have sought

congressional approval before deploying U.S. forces to Haiti, supporting a prompt and orderly

withdrawal as soon as possible, and requiring a monthly report on Haiti as well as other reports.

This same language was also adopted by the Senate on October 6 as S.J.Res. 229, and on October

7 the House passed S.J.Res. 229. President Clinton signed S.J.Res. 229 on October 25, 1994 (P.L.

103-423).

After U.S. forces began to disarm Haitian military and paramilitary forces and President Aristide

returned on October 15, 1994, the United States began to withdraw some forces. On March 31,

1995, U.N. peacekeeping forces assumed responsibility for missions previously conducted by

U.S. military forces in Haiti. By September 21, 1995, President Clinton reported the United States

had 2,400 military personnel in Haiti as participants in the U.N. Mission in Haiti (UNMIH), and

260 U.S. military personnel assigned to the U.S. Support Group Haiti. On February 29, 1996, the

U.S. Commander of the UNMIH was replaced and U.S. forces ceased to conduct security

operations in Haiti, except for self-defense. The majority of the 1,907 U.S. military personnel in

Haiti were withdrawn by mid-March 1996, and the remainder, who stayed to arrange the

dismantlement and repatriation of equipment, were withdrawn in mid-April 1996. After that, a

U.S. support unit of 300 to 500 troops, made up primarily of engineers, remained in Haiti

carrying out public works such as building bridges, repairing schools, and digging wells. In

December 1997, President Clinton ordered the Dept. of Defense to maintain hundreds of U.S.

troops in Haiti indefinitely. In September 1999, however, the 106th Congress passed the FY2000

DOD authorization bill (P.L. 106-65) that prohibited DOD funding to maintain a continuous U.S.

military presence in Haiti beyond May 31, 2000. The troops were withdrawn by the end of

January 2000. According to the conference report accompanying the FY2000 DOD authorization

bill (H.Rept. 106-301), the President is not prohibited from engaging in periodic theater

engagement activities in Haiti.79

Terrorist Attacks against the United States (World Trade Cen

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