Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications

Congressional research reportApr 18, 2014

Ask Donna

What actually matters in this document.

Text

Declarations of War and

Authorizations for the Use of Military Force:

Historical Background and Legal Implications

(name redacted)

Legislative Attorney

(name redacted)

Analyst in Foreign Policy Legislation

April 18, 2014

Congressional Research Service

7-....

www.crs.gov

RL31133

Declarations of War and Authorizations for the Use of Military Force

Summary

From the Washington Administration to the present, Congress and the President have enacted 11

separate formal declarations of war against foreign nations in five different wars. Each

declaration has been preceded by a presidential request either in writing or in person before a

joint session of Congress. The reasons cited in justification for the requests have included armed

attacks on United States territory or its citizens and threats to United States rights or interests as a

sovereign nation.

Congress and the President have also enacted authorizations for the use of force rather than

formal declarations of war. Such measures have generally authorized the use of force against

either a named country or unnamed hostile nations in a given region. In most cases, the President

has requested the authority, but Congress has sometimes given the President less than what he

asked for. Not all authorizations for the use of force have resulted in actual combat. Both

declarations and authorizations require the signature of the President in order to become law.

In contrast to an authorization, a declaration of war in itself creates a state of war under

international law and legitimates the killing of enemy combatants, the seizure of enemy property,

and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary

legal prerequisite to war and was thought to terminate diplomatic and commercial relations and

most treaties between the combatants, declarations have fallen into disuse since World War II.

The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed

conflict whether or not a formal declaration or authorization was issued.

With respect to domestic law, a declaration of war automatically triggers many standby statutory

authorities conferring special powers on the President with respect to the military, foreign trade,

transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby

authorities appear to be triggered automatically by an authorization for the use of force, although

the executive branch has argued, with varying success, that the authorization to use force in

response to the terrorist attacks of 2001 provided a statutory exception to certain statutory

prohibitions.

Most statutory standby authorities do not expressly require a declaration of war to be actualized

but can be triggered by a declaration of national emergency or simply by the existence of a state

of war; however, courts have sometimes construed the word “war” in a statute as implying a

formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations

of war and authorizations for the use of force waive the time limitations otherwise applicable to

the use of force imposed by the War Powers Resolution.

This report provides historical background on the enactment of declarations of war and

authorizations for the use of force and analyzes their legal effects under international and

domestic law. It also sets forth their texts in two appendices. The report includes an extensive

listing and summary of statutes that are triggered by a declaration of war, a declaration of national

emergency, and/or the existence of a state of war. The report concludes with a summary of the

congressional procedures applicable to the enactment of a declaration of war or authorization for

the use of force and to measures under the War Powers Resolution. The report will be updated as

circumstances warrant.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Contents

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

Previous Declarations of War .......................................................................................................... 1

Key Statutory Authorizations for the Use of Military Force ........................................................... 5

France 1798 ............................................................................................................................... 5

Tripoli 1802 ............................................................................................................................... 6

Algeria 1815 .............................................................................................................................. 7

Suppression of Piracy 1819-1823 .............................................................................................. 7

Formosa 1955 ............................................................................................................................ 8

Middle East 1957....................................................................................................................... 8

Southeast Asia 1964 .................................................................................................................. 9

Lebanon 1983 .......................................................................................................................... 10

Iraq 1991.................................................................................................................................. 12

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

2001 ...................................................................................................................................... 14

Authorization for Use of Force Against Iraq 2002 .................................................................. 16

Implications Under International Law ........................................................................................... 19

Implications Under Domestic Law ................................................................................................ 23

The War Powers Resolution .................................................................................................... 26

Trading with the Enemy Act and the International Emergency Economic Powers Act .......... 27

Other Economic Authorities .................................................................................................... 28

Alien Enemy Act ..................................................................................................................... 28

Criminal Law ........................................................................................................................... 29

Foreign Intelligence Surveillance ............................................................................................ 33

Assassination ........................................................................................................................... 34

The Defense Production Act of 1950 ...................................................................................... 35

Insurance Contracts ................................................................................................................. 37

Military Personnel ................................................................................................................... 38

Itemization of Standby Statutory Authorities................................................................................. 43

(1) Statutory Authorities Triggered by a Declaration of War ......................................................... 44

Congressional Budget Act ....................................................................................................... 44

Agricultural Exports ................................................................................................................ 44

Armed Forces .......................................................................................................................... 45

Coast Guard ............................................................................................................................. 45

Small Business Administration................................................................................................ 46

Unilateral Trade Sanctions ...................................................................................................... 46

Armed Forces Retirement Home ............................................................................................. 46

Statutes of Limitation .............................................................................................................. 46

Tort Claims Against the Federal Government ......................................................................... 46

Deferral of Civil Works Projects ............................................................................................. 46

Nuclear Regulatory Commission............................................................................................. 47

Alien Enemy Act ..................................................................................................................... 47

National Defense Stockpile ..................................................................................................... 47

National Security Agency (NSA) Personnel Security ............................................................. 47

Chemical and Biological Warfare Agents................................................................................ 47

National Emergencies Act ....................................................................................................... 48

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Foreign Intelligence Surveillance Act (FISA) ......................................................................... 48

Selective Service Act ............................................................................................................... 48

(2) Statutory Authorities Triggered by the Existence of a State of War (and Thus Also by

a Declaration of War).................................................................................................................. 49

Administrative Procedure ........................................................................................................ 49

Federal Employees .................................................................................................................. 49

Aliens....................................................................................................................................... 50

Armed Forces .......................................................................................................................... 50

Reserves................................................................................................................................... 57

Trading with the Enemy Act .................................................................................................... 58

Coast Guard ............................................................................................................................. 58

Federal Energy Regulatory Commission ................................................................................. 59

Tennessee Valley Authority ..................................................................................................... 60

Criminal Prosecutions ............................................................................................................. 60

Imports..................................................................................................................................... 60

Student Financial Aid .............................................................................................................. 60

Neutrality ................................................................................................................................. 60

Miscellaneous .......................................................................................................................... 61

Accounting and Contracts ....................................................................................................... 61

Contracts .................................................................................................................................. 61

National Guard ........................................................................................................................ 61

Armed Forces .......................................................................................................................... 62

National Oceanic and Atmospheric Administration ................................................................ 62

Ocean Dumping ....................................................................................................................... 62

Patents ..................................................................................................................................... 62

Armed Forces .......................................................................................................................... 63

Veterans’ Care .......................................................................................................................... 63

Reemployment Rights ............................................................................................................. 63

Sale of War Supplies to Foreign States .................................................................................... 64

Defense Structures in the District of Columbia ....................................................................... 64

Public Contracts....................................................................................................................... 64

Public Health Service .............................................................................................................. 64

Infectious Diseases .................................................................................................................. 64

Nuclear Energy ........................................................................................................................ 65

Public Lands ............................................................................................................................ 65

Natural Resources.................................................................................................................... 65

Destruction of Records ............................................................................................................ 65

Shipping................................................................................................................................... 65

Communications ...................................................................................................................... 66

Railroads .................................................................................................................................. 67

Procurement of Ships and Material During War ..................................................................... 67

Protection of Ships and Harbors .............................................................................................. 67

Federal Emergency Management Agency ............................................................................... 67

Central Intelligence Agency (CIA) Retirement Plan ............................................................... 67

International Emergency Economic Powers............................................................................ 68

Trading with the Enemy Act .................................................................................................... 68

Selective Service Act ............................................................................................................... 68

(3) Statutory Authorities Triggered by Declaration or Existence of National Emergency ............ 68

Federal Employees .................................................................................................................. 69

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Agriculture............................................................................................................................... 69

Armed Services ....................................................................................................................... 70

Fort McHenry .......................................................................................................................... 70

Customs Service ...................................................................................................................... 71

Barro Colorado Island ............................................................................................................. 71

Foreign Relations..................................................................................................................... 71

Federal Highways .................................................................................................................... 71

National Oceanographic and Atmospheric Administration ..................................................... 71

Basic Pay of the Uniformed Services ...................................................................................... 72

Veterans Affairs ....................................................................................................................... 72

Davis-Bacon Act...................................................................................................................... 72

Real Property and Contracts .................................................................................................... 72

Public Health ........................................................................................................................... 72

Ryan White Comprehensive AIDS Resources Emergency Act of 1990 .................................. 73

Prohibition of Compensation ................................................................................................... 73

Relocation ................................................................................................................................ 73

Resources................................................................................................................................. 73

Merchant Marine ..................................................................................................................... 73

Airports .................................................................................................................................... 74

Modification of Defense Contracts.......................................................................................... 74

National Emergencies Act ....................................................................................................... 75

International Economic Emergency Powers Act ..................................................................... 75

Defense Production Act ........................................................................................................... 75

Congressional Procedures for Declaring War or Authorizing the Use of Force ............................ 76

Regular Procedures .................................................................................................................. 76

World War I ....................................................................................................................... 77

World War II ...................................................................................................................... 77

Congressional Procedures Under The War Powers Resolution ............................................... 78

Tables

Table 1. Key Dates and Actions Related to Formal U.S. Declarations Of War ............................... 4

Appendixes

Appendix A. Texts of Formal Declarations of War by the United States....................................... 81

Appendix B. Texts of Key Authorizations of Use of Force ........................................................... 88

Contacts

Author Contact Information......................................................................................................... 107

Acknowledgments ....................................................................................................................... 107

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Introduction

Article I, Section 8, of the Constitution vests in Congress the power “to declare War.” Pursuant to

that power, Congress has enacted 11 declarations of war during the course of American history

relating to five different wars, the most recent being those that were adopted during World War II.

In addition, Congress has adopted a number of authorizations for the use of military force, the

most recent being the joint resolution enacted on October 16, 2002, authorizing the use of

military force against Iraq. To buttress the nation’s ability to prosecute a war or armed conflict,

Congress has also enacted numerous statutes which confer standby authority on the President or

the executive branch and are activated by the enactment of a declaration of war, the existence of a

state of war, or the promulgation of a declaration of national emergency.

This report examines a number of topics related to declarations of war and authorizations for the

use of military force by the United States. It (1) provides historical background on each of the

declarations of war and on several major authorizations for the use of force that have been

enacted; (2) analyzes the implications of declarations of war and authorizations for the use of

force under both international law and domestic law; (3) lists and summarizes the more than 250

standby statutory authorities that can come into effect pursuant to a declaration of war, the

existence of a state of war, and/or a declaration of national emergency; (4) describes the

procedures in Congress governing the consideration of declarations of war and authorizations for

the use of force, including the procedures under the War Powers Resolution; and (5) sets forth in

two appendices the texts of all of the declarations of war and the major authorizations for the use

of force that have been enacted. The report does not address the issue of the constitutionality of

presidential uses of military force absent a declaration of war or authorization for the use of force.

The report will be updated as circumstances warrant.

Previous Declarations of War

From the Washington Administration to the present, there have been 11 separate formal

declarations of war against foreign nations enacted by Congress and the President, encompassing

five different wars—the War of 1812 with Great Britain, the War with Mexico in 1846, the War

with Spain in 1898, the First World War, and the Second World War.1 In each case the enactment

of a formal declaration of war has been preceded by a presidential request to Congress for such an

action, either in writing or in person before a joint session of Congress. In each such message

requesting a war declaration, the President has cited what he deemed compelling reasons for

doing so. These reasons have included armed attacks on United States territory or its citizens, and

attacks on or direct threats to United States rights or interests as a sovereign nation. In the 19th

century all declarations of war were passed by the Congress in the form of a bill. In the 20th

century all declarations of war were passed by the Congress in the form of a joint resolution. In

every instance the measures were adopted by majority vote in both the House and the Senate and

were signed into law by the President.2 The last formal declaration of war was enacted on June 5,

1942, against Rumania during World War II.3

See Table 1 for presidential and congressional actions taken regarding all formal declarations of war by the United

States. See Appendix A for the texts of these declarations.

It is beyond the scope of this report to detail the often complex circumstances underlying the nature, motivations, and

timing of presidential requests for war declarations. Those matters have been the subject of important debates among

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

The circumstances of President McKinley’s request for a declaration of war against Spain in 1898

stand in singular contrast to all the others. McKinley’s request for a declaration of war on April

25, 1898, was approved by a voice vote of both houses of Congress on that date. His request was

made after Spain had rejected a U.S. ultimatum that Spain relinquish its sovereignty over Cuba

and permit Cuba to become an independent state. This ultimatum was supported by a joint

resolution of Congress, signed into law on April 20, 1898, that among other things, declared Cuba

to be independent, demanded that Spain withdraw its military forces from the island, and directed

and authorized the President to use the U.S. Army, Navy and militia of the various states to

achieve these ends. The war with Spain in 1898, in short, was not principally based on attacks on

the United States but on a U.S. effort to end the Cuban insurrection against Spain, bring about

Cuban independence, and restore a stable government and order on the island—outcomes that

were believed by the United States to advance its interests.4

In the 20th century, without exception, presidential requests for formal declarations of war by

Congress were based on findings by the President that U.S. territory or sovereign rights had been

attacked or threatened by a foreign nation. Although President Wilson had tried to maintain U.S.

neutrality after the outbreak of the First World War, he regarded the German decision on February

1, 1917, to engage in unrestricted submarine warfare against all naval vessels in the war zone,

including those of neutral states, to be an unacceptable assault on U.S. sovereign rights which the

German Government had previously pledged to respect. Wilson’s request to Congress for a

declaration of war against Germany on April 2, 1917, stated that war had been “thrust upon the

United States” by Germany’s actions. Congress passed a joint resolution declaring war which the

President signed on April 6, 1917. Wilson delayed requesting a war declaration against AustriaHungary until December 4, 1917. He did so then because that state, a German ally in the war, had

become an active instrument of Germany against the United States. Congress quickly passed a

joint resolution declaring war which the President signed on December 7, 1917.5

President Franklin D. Roosevelt requested a declaration of war against Japan on December 8,

1941, because of direct military attacks by that nation against U.S. territory, military personnel

and citizens in Hawaii and other outposts in the Pacific area. The House and the Senate passed the

requested declaration and the President signed it into law that same day. After Germany and Italy

each declared war on the United States on December 11, 1941, President Roosevelt asked

Congress to respond in kind by recognizing that a state of war existed between the United States

(...continued)

scholars. The texts of specific presidential messages requesting a declaration of war are found in Richardson, James D.

(ed.) A Compilation of the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917.) as follows:

Madison: Vol. II, pp. 484-490.; Polk: Vol. V, pp. 2287-2293.; McKinley: Vol. XIII, pp. 6296-6297; Wilson: Vol. XVI,

pp. 8226-8233 (for Germany) and Vol. XVI, pp. 8399-8406 (for Austria-Hungary); Rosenman, Samuel I. (comp.) The

Public Papers and Addresses of Franklin D. Roosevelt, 1941. New York, Harper & Brothers, 1950), pp. 514-515 (for

Japan) and pp. 532 (for Germany and Italy); Rosenman, Samuel I. (comp.) The Public Papers and Addresses of

Franklin D. Roosevelt, 1942. New York, Harper & Brothers, 1950), pp. 257 (declarations for Bulgaria, Hungary and

Rumania).

Act of June 5, 1942, ch. 325, 56 Stat. 307.

Richardson, Messages and Papers of the Presidents, Vol XIII, pp. 6296-6297. Act of April 25, 1898, ch. 189, 30 Stat.

364. Joint Resolution of April 20, 1898, [Res. 24] 30 Stat. 738. An earlier message by McKinley requesting

authorization to use U.S. military force to resolve the Cuban-Spanish conflict was submitted to Congress on April 11,

1898. Richardson, Messages and Papers of the Presidents, Vol. XIII, pp. 6281-6292.

Richardson, Messages and Papers of the Presidents, Vol. XVI, pp. 8226-8233. Act of April 6, 1917, ch.1, 40 Stat.1.

[Germany]. Richardson, Messages and Papers of the Presidents, Vol. XVI, pp. 8399-8406. Act of December 7, 1917,

ch. 1, 40 Stat. 429.[Austria-Hungary].

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

and those two nations. Congress passed separate joint resolutions declaring war on both nations

which the President signed on December 11, 1941.6 On June 2, 1942, President Roosevelt asked

that Congress declare war on Bulgaria, Hungary and Rumania, nations that were under the

domination of Germany, were engaged in active military actions against the United States, and

had themselves declared war on the United States. Congress passed separate joint resolutions

declaring war on each of these nations. The President signed these resolutions on June 5, 1942.7

There is a striking similarity of language in the eight declarations of war passed by the Congress

in the 20th century. They all declare that a “state of war” exists between the United States and the

other nation. With the one exception of the declaration of war against Austria-Hungary on

December 7, 1917, the other seven declarations characterize the state of war as having been

“thrust upon the United States” by the other nation. All eight of these 20th century declarations of

war state in identical language that the President is

authorized and directed to employ the entire naval and military forces of the United States

and the resources of the Government to carry on war against [the ‘Government’ of the

particular nation]; and to bring the conflict to a successful termination all of the resources of

the country are hereby pledged by the Congress of the United States.

The complete texts of the 11 declarations of war are set forth in Appendix A.

Rosenman, Public Papers of President Roosevelt, 1941, pp. 514-515. Act of December 8, 1941, ch. 561, 55 Stat.

795.[Japan]; Rosenman, Public Papers of President Roosevelt 1941, p. 532. Act of December 11, 1941, ch. 564, 55

Stat. 796. [Germany].Act of December 11, 1941, ch. 565, 55 Stat. 797.[Italy].

Rosenman, Public Papers of President Roosevelt, 1942, p. 257. Act of June 5, 1942, ch. 323, 56 Stat. 307. [Bulgaria].

Act of June 5, 1942, ch. 324, 56 Stat. 307.[Hungary]. Act of June 5, 1942, ch. 325, 56 Stat. 307.[Rumania].

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Table 1. Key Dates and Actions Related to Formal U.S. Declarations Of War

1812—Great Britain

Madison asked June 1, 1812. House passed on June 4, 1812 (79-49). Senate passed on

June 17, 1812 (19-13). President signed on June 18, 1812. Act of June18, 1812, ch.

102, 2 Stat. 755. Terminated by Treaty of Ghent, which entered into force on February

17, 1815. 8 Stat. 218, Treaty Series 109.

1846—Mexico

Polk asked May 11, 1846. House passed on May 11, 1846 (174-14). Senate passed on

May 12, 1846 (40-2). President signed on May 13, 1846. Act of May 13, 1846, ch.16, 9

Stat. 9. Terminated by Treaty of Guadalupe Hidalgo, which entered into force on May

30, 1848. 9 Stat. 922, Treaty Series 207.

1898—Spain

McKinley asked April 25, 1898. Senate and House passed on April 25, 1898, by voice

votes. McKinley signed on April 25, 1898. Act of April 25, 1898, ch. 189, 30 Stat. 364.

The bill made the war date retroactive to April 21, 1898. Terminated by Treaty of

Paris, which entered into force on April 11, 1899. 30 Stat. 1754, Treaty Series 343.

1917—World War I

Wilson asked April 2, 1917. Senate passed on April 4, 1917 (82-6). House passed on

April 6, 1917 (373-50). President signed on April 6, 1917. Act of April 6, 1917, ch.1,

40 Stat. 1. Terminated by Act of July 2, 1921, ch. 40, 42 Stat. 105, which declared the

state of war between the U.S. and Germany to be at an end. Formally recognized by

the Treaty on Establishment of Friendly Relations, which entered into force November

11, 1921. 42 Stat. 1939, Treaty Series 658.

(Germany)

1917—World War I

(Austria-Hungary)

1941—World War II

(Japan)

1941—World War II

(Germany)

1941—World War II

(Italy)

1942—World War II

(Bulgaria)

Wilson asked December 4, 1917. House passed on December 7, 1917 (365-1). Senate

passed on December 7, 1917 (74-0). President signed on December 7, 1917. Act of

December 7, 1917, ch.1, 40 Stat. 429. Terminated by Act of July 2, 1921, ch. 40, 42 Stat.

105, which declared the state of war between the U.S. and the two successor states

and governments to the Austro-Hungarian monarchy—Austria and Hungary—to be at

an end. Formally recognized by the Treaty on Establishment of Friendly Relations with

Austria, which entered into force November 8, 1921 (42 Stat. 1939, Treaty Series 658)

and the Treaty on Establishing Friendly Relations with Hungary, which entered into

force December 17, 1921. 42 Stat. 1951, Treaty Series 660.

Roosevelt asked December 8, 1941. Senate passed on December 8, 1941 (82-0). House

passed on December 8, 1941 (388-1). President signed on December 8, 1941. Act of

December 8, 1941, ch. 561, 55 Stat. 795. Terminated by Treaty of Peace with Japan,

which entered into force April 28, 1952. 3 UST 3169, TIAS 2490.

Roosevelt asked December 11, 1941. Senate passed on December 11, 1941 (88-0).

House passed on December 11, 1941 (393-0). President signed on December 11,

1941. Act of December 11, 1941, ch. 564, 55 Stat. 796. Terminated by Act of October

19, 1951, ch. 519, 65 Stat. 451.

Roosevelt asked December 11, 1941. Senate passed on December 11, 1941 (90-0).

House passed on December 11, 1941 (399-0). President signed on December 11,

1941. Act of December 11, 1941, ch. 565, 55 Stat. 796. Terminated by Treaty of Peace

with Italy, which entered into force September 15, 1947. 4 UST 311, 61 Stat. 1245.

Roosevelt asked June 2, 1942. House passed on June 3, 1942 (357-0). Senate passed on

June 4, 1942 (73-0). President signed on June 5, 1942. Act of June 5, 1942, ch. 323, 56

Stat. 307. Terminated by Treaty of Peace with Bulgaria, which entered into force

September 15, 1947. 4 UST 429, 61 Stat. 1915.

1942—World War II

(Hungary)

Roosevelt asked June 2, 1942. House passed on June 3, 1942 (360-0). Senate passed on

June 4, 1942 (73-0). President signed on June 5, 1942. Act of June 5, 1942, ch. 324, 56

Stat. 307. Terminated by Treaty of Peace with Hungary, which entered into force

September 15, 1947. 4 UST 453, 61 Stat. 2065.

1942—World War II

(Rumania)

Roosevelt asked June 2, 1942. House passed on June 3, 1942 (361-0). Senate passed on

June 4, 1942 (73-0). President signed on June 5, 1942. Act of June 5, 1942, ch. 325, 56

Stat. 307. Terminated by Treaty of Peace with Rumania, which entered into force

September 15, 1947. 4 UST 403, 61 Stat. 1757.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Key Statutory Authorizations for the Use

of Military Force

From the Administration of President John Adams to the present, there have been various

instances when legislation has been enacted authorizing the use of military force by the President

instead of formally declaring war. In most cases such legislation has been preceded by a specific

request by the President for such authority. During the Presidencies of John Adams and Thomas

Jefferson, these Chief Executives noted in messages to Congress that congressional authorizations

for use of force would be appropriate to enable the United States to protect its interests from

predatory actions by foreign powers, in particular attacks on U.S. commercial vessels and persons

on the high seas by France and by Tripoli. Congress responded with specific authorizations for

the use of force under the President’s direction in 1798 against France and in 1802 against Tripoli.

In 1815 President James Madison formally requested that Congress declare war against the

Regency of Algiers in response to its attacks on U.S. citizens and commerce in the Mediterranean.

Congress responded with an act authorizing the President to utilize U.S. armed vessels to be used

against Algerian naval attacks but did not declare war.

In the period following World War II, Presidential requests for authority to use military force,

when made, have usually been for broad authority to use U.S. military force in a specific region

of the world in order to defend U.S. interests or friendly states as the President deems appropriate.

More recently, due to an expansive interpretation of the President’s constitutional authority as

Commander-in-Chief of the Armed Forces and of his inherent powers to use force without

congressional authorization, the President has welcomed support from the Congress in the form

of legislation authorizing him to utilize U.S. military forces in a foreign conflict or engagement in

support of U.S. interests, but has not taken the view that he is required to obtain such

authorization.

What follows is a brief overview of key legislative authorizations of the use of military force by

the President from the Administration of John Adams to the present.8 Appendix B provides the

complete text of these specific authorizations.

France 1798

The United States during the 1790s had remained neutral in the conflict in Europe between

France and Great Britain and had only begun to develop a Navy. During the Administration of

President John Adams, relations with France deteriorated as American commercial ships were

frequently seized by French naval vessels. In response, in his message to Congress on May 16,

1797, President Adams argued that it would be prudent for the Congress to enact legislation that

would address the actions of the French by authorizing, among other things, the use of U.S. naval

vessels to defend against attacks on American shipping and citizens engaged in lawful commerce

There have been numbers of scholarly works written that address, in depth, the circumstances surrounding most of the

measures discussed herein. It is beyond the scope of this report to itemize fully the complex diplomatic, political and

military motivations that led to their enactment. For general background see Bemis, Samuel Flagg, A Diplomatic

History of the United States, New York, Holt, Rinehart and Winston, 5th ed. 1965; DeConde, Alexander, A History of

American Foreign Policy, New York, Charles Scribner’s Sons, 3rd ed., 2 vol. 1978; Bailey, Thomas A., A Diplomatic

History of the American People, Englewood Cliffs, Prentice Hall, Inc., 10th ed. 1980.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

abroad. President Adams reiterated, in a message of March 19, 1798, his view of the necessity for

congressional action on his recommendations for the adoption of measures to protect American

seafaring citizens and commerce.9

Congress subsequently responded to the President’s recommendations by passing legislation

“more effectually to protect the Commerce and Coasts of the United States” authorizing the

President to instruct commanders of U.S. armed vessels to act against any “armed vessel” found

to have committed or attempting to commit “depredations on the vessels” belonging to United

States citizens, and to retake any ship or vessel of United States citizens that may have been

captured by non-U.S. armed vessels.10 The legislation was signed into law on May 28, 1798,

Congress passed additional legislation, signed into law on July 9, 1798, that authorized the

President to instruct commanders of U.S. Navy warships to “subdue, seize and take any armed

French vessel which shall be found within the jurisdictional limits of the United States, or

elsewhere, on the high seas....” The President was further granted the authority to grant special

commissions to “owners of private armed ships and vessels of the United States,” to permit them

to lawfully subdue, seize, and capture “any armed French vessel,” and to recapture U.S. vessels,

goods and effects of U.S. citizens with the same authority as U.S. Navy vessels, subject to

instructions given by the President.11

Tripoli 1802

President Thomas Jefferson, in response to attacks on U.S. commercial shipping in the

Mediterranean Sea by vessels under the control of the Bey of Tripoli, noted in his message to

Congress of December 8, 1801, that it would be prudent for Congress to authorize the use of U.S.

Navy forces to protect U.S. shipping against Tripoli, including permitting them to take offensive

action against Tripolitan vessels.12 Congress responded by passing legislation, enacted on

February 6, 1802, that authorized the President to “equip, officer, man, and employ such of the

armed vessels of the United States as may be judged requisite by the President of the United

States, for protecting effectually the commerce and seamen thereof on the Atlantic ocean, the

Mediterranean and adjoining seas.” The President was also authorized to utilize the U.S. Navy “to

subdue, seize and make prize of all vessels, goods and effects belonging to the Bey of Tripoli, or

his subjects ... and to cause to be done all such other acts of precaution or hostility as the state of

war will justify, and may, in his opinion, require.” The President was further granted the authority

to grant special commissions to “owners of private armed vessels of the United States,” to permit

them to lawfully subdue and seize “any Tripolitan vessel, goods or effects” with the same

authority as U.S. Navy vessels, subject to instructions given by the President.13

The text of President John Adams’s messages to Congress are found in Richardson, James D. (ed.) A Compilation of

the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. I, pp. 223-229, 254-255; also in

Annals of the Congress of the United States, 5th Congress, 1st session, pp.54-59,1271-1272.

Act of May 28, 1798, ch. 48, 2 Stat. 561.

Act of July 9, 1798, ch. 68, 2 Stat. 578.

The text of President Thomas Jefferson’s message to Congress is found in Richardson, James D. (ed.) A Compilation

of the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. I, pp. 314-320; Also in Annals of

the Congress of the United States, 7th Congress, 1st session, pp. 12-16.

Act of February 6, 1802, ch. 4, 2 Stat. 129.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Algeria 1815

President James Madison, after the conclusion of a peace treaty with Great Britain ending the War

of 1812, sought authority to use the U.S. Navy to take action against vessels of the ruler and

Regency of Algeria that had been seizing U.S. commercial vessels in the Mediterranean area. Due

to acts of “overt and direct warfare against the citizens of the United States,” President Madison,

on February 23, 1815, recommended that Congress declare the “existence of a state of war

between the United States and the Dey and Regency of Algiers.”14 Congress did not declare war

but did pass legislation, enacted on March 3, 1815, that authorized the President to use the U.S.

Navy, “as judged requisite by the President” to protect the “commerce and seamen” of the United

States on the “Atlantic Ocean, the Mediterranean and adjoining seas.” The President was also

authorized to utilize the U.S. Navy to seize “all vessels, goods and effects belonging to the Dey of

Algiers, or to his subjects ... and to cause to be done all such other acts of precaution or hostility

as the state of war will justify, and may, in his opinion, require.” The President was further

granted the discretionary authority to grant special commissions to “owners of private armed

vessels of the United States,” to permit them to lawfully subdue, seize, and capture “any Algerine

vessel, goods or effects” with the same authority as U.S. Navy vessels, subject to instructions

given by the President.15

Suppression of Piracy 1819-1823

During the years after the War of 1812, there was a notable increase in the number of attacks on

U.S. commercial shipping vessels in and around the Caribbean and Latin American coastal

waters. Some of this was stimulated by the chaotic conditions attendant to the struggles for

independence by South American colonies of Spain. Pirates attacked not only Spanish vessels in

the region, but vessels of other nations generally. In response to calls for action against these

predatory attacks on their vessels, American shippers petitioned Congress for action to protect

them from pirates. In response, on March 3, 1819, legislation was enacted “to protect the

commerce of the United States, and punish the crime of piracy.” This legislation authorized the

President to employ “the public armed vessels” of the United States as he deemed necessary to

protect “the merchant vessels of the United States and their crews from piratical aggressions and

depredations.” This legislation further authorized the President to instruct the commanders of the

“public armed vessels of the United States” to take various actions to combat piracy, including

attacking and seizing pirates and their vessels. The legislation also authorized U.S. vessels

attacked by pirates to take actions against their aggressors and seize their ships. The legislation

further established penalties for those that engaged in piracy. This 1819 statute was subsequently

made permanent law on January 30, 1823. It has been amended, but the current text, found in

Title 33 of the United States Code, contains substantially the same language as was enacted in

March of 1819.16

The text of President James Madison’s message to Congress is found in Richardson, James D. (ed.) A Compilation of

the Messages and Papers of the Presidents (20 vol., Washington, 1897-1917), Vol. II, p. 539; Also in Annals of the

Congress of the United States, 13th Congress, 3rd session, p. 269.

Act of March 3, 1815, Chap. 90, 3 Stat. 230.

For a detailed treatment of the problem of piracy in the West Indies during the U.S. early national period see Francis

B.C. Bradlee. Piracy in the West Indies and Its Suppression. Salem: The Essex Institute, 1923 [reprinted 1970 by

MacDonald and Janes, London]. Also see chapter 12 in Craig L. Symonds. Navalists and Antinavalists. Newark:

University of Delaware Press, 1980. For recent use of the piracy statute in connection with activity off the coast of

Somalia, see CRS Report R40528, Piracy off the Horn of Africa, by (name redacted) et al. For criminal

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Formosa 1955

In a message to Congress on January 24, 1955, President Dwight Eisenhower, detailed a series of

“provocative political and military actions” by the Chinese Communist government that he

believed established a “pattern of aggressive purpose.” That purpose was the “conquest of

Formosa.” This situation, said Eisenhower, posed a “serious danger to the security of our country

and of the entire Pacific area and indeed to the peace of the world.” The President believed that

the U.S. should not wait for the United Nations to take steps to deal with the situation but should

be prepared to use its own armed forces “to assure the security of Formosa and the Pescadores.”

President Eisenhower stated that authority for “some of the actions which might be required

would be inherent in the authority of the Commander-in-Chief.” He noted that, pending

congressional action, he “would not hesitate, so far as my Constitutional powers extend, to take

whatever emergency action might be forced upon us to protect the rights and security of the

United States.” However, he stated that a “suitable Congressional resolution would clearly and

publicly establish the authority of the President as Commander-in-Chief to employ” the U.S.

armed forces “promptly and effectively” as he deemed necessary to deal with the circumstances.

Such a resolution would “make clear the unified and serious intentions of our Government, our

Congress and our people.”17

In response to the President’s request, Congress passed legislation on January 29, 1955, that

authorized the President to “employ the Armed Forces of the United States as he deems necessary

for the specific purpose of securing and protecting Formosa, and the Pescadores against armed

attack....” The President was also authorized to take “such other measures as he judges to be

required or appropriate in assuring the defense of Formosa and the Pescadores.” The resolution

stated that it would expire when the President determined and reported to Congress that the

“peace and security of the area is reasonably assured....”18 The resolution was subsequently

repealed in 1974.19

Middle East 1957

In a special message to Congress on January 5, 1957, President Dwight D. Eisenhower requested

congressional support for a program of military and economic cooperation with nations in the

general area of the Middle East to “deal with the possibility of Communist aggression, direct or

indirect” against nations in that region. As one component of this military and economic

assistance program, President Eisenhower sought authority to employ the “armed forces of the

United States to secure and protect the territorial integrity and political independence of such

nations, requesting such aid, against overt armed aggression from any nation controlled by

International Communism.” The President emphasized that such authority would not be utilized

by him “except at the desire of the nation attacked.”20

(...continued)

prosecutions of accused pirates, see CRS Report R41455, Piracy: A Legal Definition, by (name redacted).

Public Papers of the Presidents of the United States. Dwight D. Eisenhower. 1955, Washington. U.S. Government

Printing Office, 1959, pp. 207-211.

P.L. 84-4, 69 Stat. 7, January 29, 1955. The House passed H.J.Res. 159 by a vote of 410-3 on January 25, 1955; the

Senate passed the joint resolution by a vote of 85-3 on January 28, 1955.

P.L. 93-475, §3, 88 Stat. 1439, October 26, 1974.

Public Papers of the Presidents of the United States. Dwight D. Eisenhower. 1957, Washington. U.S. Government

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

In response, Congress passed legislation, enacted on March 9, 1957, that, among other things,

authorized the President “to undertake, in the general area of the Middle East, military assistance

programs with any nation or group of nations of that area desiring such assistance.” The joint

resolution further provided that “if the President determines the necessity thereof, the United

States is prepared to use armed forces to assist any such nation or group of such nations

requesting assistance against armed aggression from any country controlled by international

communism: Provided, that such employment shall be consonant with the treaty obligations of

the United States and with the Constitution of the United States.” The President was also to report

to Congress on his action under the joint resolution between January and July of each year. The

joint resolution further provided that it would expire when the President determined that the

“peace and security of the nations in the general area of the Middle East” was “reasonably

assured” or should Congress terminate it earlier by passage of a concurrent resolution.21 The

resolution has not been formally repealed.22

Southeast Asia 1964

In the early 1960s the United States had been providing military assistance and support to the

government of South Vietnam. Over time tensions, associated with the U.S. military presence in

Southeast Asia and support for the South Vietnamese government, grew between the U.S. and the

communist government of North Vietnam. On August 2, 1964, a U.S. destroyer, the U.S.S.

Maddox, while in international waters off the coast of North Vietnam (the Gulf of Tonkin) was

attacked by North Vietnamese torpedo boats. The attack was repulsed. The State Department

protested to the North Vietnamese government and noted that grave consequences would follow

additional offensive actions against U.S. forces. Subsequently, on August 4, further attacks by

North Vietnamese vessels against U.S. destroyers were reported to Washington. President Lyndon

Johnson responded on August 4 by sending U.S. military aircraft to bomb “gunboats and certain

supporting facilities” in North Vietnam that had allegedly been used in the actions against U.S.

naval vessels. After meeting with congressional leaders, President Johnson on August 5, 1964,

formally requested a resolution of Congress that would “express the support of the Congress for

(...continued)

Printing Office, 1958, pp. 6, 11-15.

P.L. 85-7, 71 Stat. 5 March 9, 1957 [H.J.Res. 117]. The Senate Committees on Foreign Relations and Armed

Services, in a joint report, noted that in considering the legislation various strongly held views had been “vigorously

expressed” regarding the constitutional powers of the President and of the Congress, as well as the proper constitutional

procedure to be followed in the situation contemplated by the legislation. The final legislative language adopted

reflected this debate. This language had, the Senate committees said, “the virtue of remaining silent on the question of

the relationship between the Congress and the President with respect to the use of the Armed Forces for the objectives

stated in the resolution.” The Senate committees also argued that although there was sharp division as to the “proper

constitutional processes” to follow in support of the President’s request, there was none regarding the substantive

policy involved. They stated that “the clear statement of policy in section 2 of the resolution as reported is preferable to

a blanket authorization to the President to use the Armed Forces in this area.” U.S. Congress. Senate. Committees on

Foreign Relations and Armed Services, 85th Congress, 1st session, S.Rept. 70, February 14, 1957 [to accompany S.J.

Res. 19], pp. 1, 8-9. The text of the Senate bill was adopted by the Congress in lieu of that of the House bill. The Senate

passed the joint resolution, H.J.Res. 117, as amended, by a vote of 72-19 on March 5, 1957; the House passed H.J.Res.

117 with the Senate amendments by a vote of 350-60 on March 7, 1957. The joint resolution was signed on March 9,

1957.

The resolution is codified at 22 U.S.C.A. §§1961-65.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

all necessary action to protect our armed forces and to assist nations covered by the SEATO

Treaty.”23

Congress responded to President Johnson’s request by passing a joint resolution to “promote the

maintenance of international peace and security in southeast Asia.” This legislation has come to

be popularly known as the “Gulf of Tonkin resolution.” This joint resolution, enacted on August

10, 1964, stated that “the Congress approves and supports the determination of the President, as

Commander-in-Chief, to take all necessary measures to repel any armed attack against the forces

of the United States and to prevent further aggression.” The joint resolution further stated that

“[c]onsonant with the Constitution of the United States and the Charter of the United Nations and

in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United

States is, therefore, prepared, as the President determines, to take all necessary steps, including

the use of armed force, to assist any member or protocol state of the Southeast Asia Collective

Defense Treaty requesting assistance in defense of its freedom.” The joint resolution stated that it

would expire whenever the President determined that the “peace and security of the area is

reasonably assured” or if Congress chose to terminate it earlier by concurrent resolution.24

Congress repealed the resolution in 1971.25

Lebanon 1983

On July 6, 1982, President Ronald Reagan announced he would send a small contingent of U.S.

troops to participate in a multinational force for temporary peacekeeping in Lebanon. When the

forces began to land on August 25, President Reagan reported this action to Congress but did not

cite Section 4(a)(1) of the War Powers Resolution,26 and said the agreement with Lebanon ruled

out any combat responsibilities. After overseeing the departure of the Palestine Liberation

Organization force, the U.S. 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 U.S. 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 to Congress that 1,200 Marines had

begun to arrive in Beirut, but again he did not cite Section 4(a)(1), of the War Powers Resolution,

stating that the American force would not engage in combat. As a result of incidents in which

U.S. Marines were killed or wounded, there was 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

Public Papers of the Presidents of the United States. Lyndon B. Johnson. 1963-64, Washington. U.S. Government

Printing Office, 1965, pp. 927, 930-932.

P.L. 88-408, 78 Stat. 384, August 10, 1964. The House passed H.J.Res. 1145 on August 7, 1964, by a vote of 414-0;

the Senate passed it on August 7, 1964 by a vote of 88-2. This joint resolution was later repealed in 1971 by P.L. 91672, §12, 84 Stat. 2053 (1971).

P.L. 91-672, §12, 84 Stat. 2055, January 12, 1971.

For an explanation of the requirements of the War Powers Resolution, see infra at 27-28.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

expansion in the number or role of U.S. Armed Forces in Lebanon. It also included a section 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 1973.27

President Reagan reported on the Lebanon situation again on August 30, 1983, still not citing

Section 4(a)(1), after fighting broke out between various factions in Lebanon and two Marines

were killed. The level of fighting heightened; and as the Marine casualties increased and the

action enlarged, there were more calls in Congress for invocation of the War Powers Resolution.

Several Members of Congress said the situation had changed since the President’s first report and

introduced legislation that took various approaches. Senator Charles Mathias introduced S.J.Res.

159 stating that the time limit specified in the War Powers Resolution had begun on August 31,

1983, and authorizing the forces to remain in Lebanon for a period of 120 days after the

expiration of the 60-day period. Representative Thomas Downey introduced H.J.Res. 348

directing the President to report under Section 4(a)(1) of the War Powers Resolution. Senator

Robert Byrd introduced S.J.Res. 163 finding that Section 4(a)(1) of the War Powers Resolution

applied to the present circumstances in Lebanon. The House Appropriations Committee approved

an amendment to the continuing resolution for 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, 1983, congressional leaders and President Reagan agreed on a compromise

resolution invoking Section 4(a)(1) of the War Powers Resolution and authorizing the Marines to

remain for 18 months. The Multinational Force in Lebanon 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. 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 later the same day. The President signed the joint resolution into law on October 12,

1983. As passed, the joint resolution contained four occurrences that would terminate the

authorization before eighteen months: (1) the withdrawal of all foreign forces from Lebanon,

unless the President certified continued U.S. participation was required to accomplish specified

purposes; (2) the assumption by the United Nations or the Government of Lebanon of the

responsibilities of the Multinational Force; (3) the implementation of other effective security

arrangements; or (4) the withdrawal of all other countries from participation in the Multinational

Force. Congress also determined in the joint resolution that the requirements of Section 4(a)(1) of

the War Powers Resolution became operative on August 29, 1983.28

In a statement made on signing S.J.Res. 159 on October 12, 1983, President Reagan expressed

appreciation for the support for the U.S. presence and policies in Lebanon he believed were

embodied in the legislation. He sharply differed, however, with various “findings, determinations,

and assertions” by the Congress on certain matters. He stated his concerns about the practical

problems associated with Section 4(a)(1) of the War Powers Resolution, and the wisdom and

P.L. 98-43, 97 Stat. 214, June 27, 1983 [S. 639].

P.L. 98-119, 97 Stat. 805, October 12, 1983 [S.J.Res. 159].

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

constitutionality of Section 5(b). President Reagan noted that in signing the Lebanon resolution it

was important for him to state

that I do not and cannot cede any of the authority vested in me under the Constitution as

President and as Commander in Chief of United States Armed Forces. Nor should my

signing be viewed as any acknowledgment that the President’s constitutional authority can

be impermissibly infringed by statute, that congressional authorization would be required if

and when the period specified in section 5(b) of the War Powers Resolution might be

deemed to have been triggered and the period had expired, or that section 6 of the

Multinational Force in Lebanon Resolution may be interpreted to revise the constitutional

authority to deploy United States Armed Forces.29

Iraq 1991

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 toward the

border with Saudi Arabia. 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 further Iraqi aggression. He

noted that he did not believe involvement in hostilities was imminent. Throughout the rest of

1990, President Bush continued to work to establish an international coalition opposed to Iraq’s

aggression, while continuing to deploy additional U.S. military reinforcements into Saudi Arabia

and the Persian Gulf region. By the end of the year approximately 350,000 U.S. forces had been

deployed to the area.30

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

December 13, Judge Harold Greene of the federal district court in Washington, D.C. denied the

injunction, holding that the controversy was not ripe for judicial resolution because a majority of

Congress had not sought relief and the executive branch had not shown sufficient commitment to

a definitive course of action.31

By January, 1991, President Bush had secured the support of the United Nations and an

international coalition to use force, if necessary, to free Kuwait from Iraqi occupation. U.N.

Resolution 678 of November 29, 1990, authorized all U.N. member states “to use all necessary

means” to implement various U.N. resolutions seeking to end Iraqi occupation of Kuwait. It set a

January 15, 1991 deadline for Iraq to implement fully all relevant U.N. resolutions relating to its

invasion of Kuwait. On January 8, 1991, President George H.W. Bush, in a letter to the

Public Papers of the Presidents of the United States. Ronald Reagan. 1983, Washington. U.S. Government Printing

Office, 1985, pp.1444-1445. Shortly afterward, on October 23, 1983, 241 U.S. Marines in Lebanon were killed by a

suicide truck bombing, raising fresh questions in Congress and U.S. public opinion about U.S. participation in the

Lebanon peacekeeping endeavor. 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.

For an overview of congressional actions during the fall and winter of 1990 as well as the President’s actions in

response to the events in the Persian Gulf, see CRS Report R42699, The War Powers Resolution: After Thirty-Eight

Years, pp. 24-26.

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

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

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.”32

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

Iraq Resolution.” Section 2(a) of that joint resolution 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 as a precondition that the President would first

have to report to Congress 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 constituted 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.33

On signing H.J.Res. 77 into law, President Bush said the following:

As I made clear to congressional leaders at the outset, my request for congressional support

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

positions of the executive branch on either the President’s constitutional authority to use the

Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers

Resolution.

He added that he was pleased that “differences on these issues between the President and many in

the Congress have not prevented us from uniting in a common objective.”34 On January16, 1991,

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

Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing

Office, 1992, pp. 13-14, 19-20.

The House passed H.J.Res. 77 by a vote of 250 to 183. The Senate passed S.J.Res. 2 and then accepted the language

in H.J.Res. 77. The Senate vote was 52 to 47. P.L. 102-1, 105 Stat. 3, 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.

Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing

Office, 1992, p. 40. Subsequently, on June 20,1992, President Bush reiterated his view of his constitutional authority

during remarks to the Texas State Republican Convention in Dallas, Texas. On that occasion 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.” Public Papers of the Presidents of the

United States. George Bush 1992-93. Washington, U.S. Government Printing Office, 1993, p. 995.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

“consistent with the War Powers Resolution” that he had directed U.S. forces to commence

combat operations on January 16.35

Terrorist Attacks against the United States (World Trade Center and

the Pentagon) 2001

On September 11, 2001, terrorists hijacked four U.S. commercial airliners, crashing two into the

twin towers of the World Trade Center in New York City, and another into the Pentagon building

in Arlington, Virginia. The fourth plane crashed in Shanksville, Pennsylvania near Pittsburgh,

after passengers struggled with the highjackers for control of the aircraft. The death toll from

these incidents was nearly 3,000. President George W. Bush characterized these attacks as more

than acts of terror. “They were acts of war,” he said. He added that “freedom and democracy are

under attack,” and he asserted that the United States would use “all of our resources to conquer

this enemy.”36

In the days immediately after the September 11 attacks, the President consulted with the leaders

of Congress on appropriate steps to take to deal with the situation confronting the United States.

One of the things that emerged from discussions was the concept of a joint resolution of Congress

authorizing the President to take military steps to deal with the parties responsible for the attacks

on the United States. Between September 13 and 14, draft language of such a resolution was

discussed and negotiated by the President’s representatives and the House and Senate leadership

of both parties. Other Members of both houses suggested language for consideration. On Friday,

September 14, 2001, the text of a joint resolution was introduced. It was first considered and

passed by the Senate in the morning of September 14, as Senate Joint Resolution 23, by a vote of

98-0. The House of Representatives passed it later that evening, by a vote of 420-1, after tabling

an identical resolution, H.J.Res. 64, and rejecting a motion to recommit by Representative John

Tierney that would have had the effect, if passed and enacted, of requiring a report from the

President on his actions under the resolution every 60 days.37

President Bush signed the measure into law on September 18, 2001.38 The joint resolution

authorizes the President

to use all necessary and appropriate force against those nations, organizations, or persons he

determines planned, authorized, committed, or aided the terrorist attacks that occurred on

September 11, 2001, or harbored such organizations or persons, in order to prevent any

future acts of international terrorism against the United States by such nations, organizations

or persons.

Public Papers of the Presidents of the United States. George Bush 1991. Washington, U.S. Government Printing

Office, 1992, p. 42, 52. Emphasis added.

Presidential statement of September 12, 2001. Office of the White House Press Secretary, available at

http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010912-4.

For background on discussions regarding the resolution see Washington Post, September 13, 2001, p.A3; CQ Daily

Monitor, September 13, 2001, p.2, 6; CQ Daily Monitor, September 14, 2001, p.2; Washington Post, September 14,

2001, p. A30; The New York Times, September 14, 2001, p.A19; Roll Call, September 20, 2001, p.17; and

Abramowitz, David, “The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing

Use of Force Against International Terrorism,” 43 Harvard International Law Journal 71 (2002). The debate on

S.J.Res. 23 is found in 107 CONG. REC. S9416-S9421 and H5638-H5683 (daily edition September 14, 2001).

P.L. 107-40 (September 18, 2001); 115 Stat. 224.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

The joint resolution further states that Congress declares that this resolution is intended to

“constitute specific statutory authorization within the meaning of section 5(b) of the War Powers

Resolution.” Finally, the joint resolution also states that “[n]othing in this resolution supersedes

any requirement of the War Powers Resolution.”

A notable feature of P.L. 107-40 is that, unlike all other major legislation authorizing the use of

military force by the President, this joint resolution authorizes military force against not only

nations but also organizations and persons linked to the September 11, 2001, attacks on the

United States. This authorization of military action against organizations and persons is

unprecedented in American history, with the scope of its reach yet to be determined. The

authorization of use of force against unnamed nations is more consistent with some previous

instances where authority was given to act against unnamed states as appropriate when they

became aggressors or took military action against the United States or its citizens.

President George W. Bush in signing S.J.Res. 23 on September 18, 2001, stated that the Congress

had acted “wisely, decisively, and in the finest traditions of our country.” He thanked the

“leadership of both houses for their role in expeditiously passing this historic joint resolution.” He

noted that he had had the “benefit of meaningful consultations with members of the Congress”

since the September 11 attacks and that he would “continue to consult closely with them as our

Nation responds to this threat to our peace and security.” President Bush also asserted that

S.J.Res. 23 “recognized the authority of the President under the Constitution to take action to

deter and prevent acts of terrorism against the United States.” He also stated that “in signing this

resolution, I maintain the longstanding position of the executive branch regarding the President’s

constitutional authority to use force, including the Armed Forces of the United States, and

regarding the constitutionality of the War Powers Resolution.”39

The Bush Administration interpreted P.L. 107-40 broadly, to confirm the President’s authority as

Commander-in-Chief to conduct antiterrorism operations anywhere in the world, including within

the United States.40 In 2004, the Supreme Court affirmed the President’s powers to detain “enemy

combatants” captured in Afghanistan as part of the necessary force authorized by Congress, but

found that detainees could challenge their detention in federal court.41 In light of the Supreme

Court decisions, the Bush Administration interpreted the joint resolution to authorize any

measures that can be characterized as fundamental incidents of the conduct of war, even where

such measures are otherwise prohibited by statute (at least so long as the statute in question

contemplates a statutory exception). Thus, the Administration cited the joint resolution to support

the President’s power to detain persons he has deemed to be “enemy combatants” (whether

citizens or aliens and without regard to the location or circumstances of their capture)42 and to

conduct electronic surveillance of communications within the United States without following the

procedures prescribed in FISA.43 The Supreme Court in 2006 held that P.L. 107-40 does not

Statement of the President on September 18, 2001. President Signs Authorization for Use of Military Force bill.

Office of the White House Press Secretary. September 18, 2001, available at http://georgewbushwhitehouse.archives.gov/news/releases/2001/09/20010918-10.html.

For a detailed legislative history of the joint resolution addressing its intended scope, see CRS Report RS22357,

Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History.

For an overview of the 2004 Supreme Court decisions regarding the authorization to use military force, see CRS

Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War

on Terrorism, by (name redacted).

See CRS Report RL31724, Detention of American Citizens as Enemy Combatants, by (name redacted).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

override the Uniform Code of Military Justice (UCMJ) as it pertains to the trial of captured

combatants for violations of the law of war.44

Authorization for Use of Force Against Iraq 2002

In the summer of 2002, the Bush Administration made public its views regarding what it deemed

a significant threat to U.S. interests and security posed by the prospect that Iraq had or was

acquiring weapons of mass destruction. Senior members of the Bush Administration cited a

number of violations of U.N. Security Council resolutions by Iraq regarding the obligation

imposed at the end of the Gulf War in 1991 to end its chemical, biological and nuclear weapons

programs. On September 4, 2002, President Bush met with congressional leadership and stated

that he would seek congressional support, in the near future, for action deemed necessary to deal

with the threat posed to the United States by the regime of Saddam Hussein. The President also

indicated that he would speak to the United Nations shortly and set out his concerns about Iraq.

On September 12, 2002, President Bush addressed the U.N. General Assembly, explaining U.S.

concerns about Iraq’s actions since the end of the 1991 Gulf War, including numerous instances

when Iraq had violated various U.N. Security Council resolutions, including those related to

disarmament. He stated that the United States would work with the U.N. Security Council to

address the threat to international peace and security posed by Iraq. He emphasized, however, that

if Iraq refused to fulfill its obligations to comply with U.N. Security Council resolutions, the

United States would see that those resolutions were enforced.45

Subsequently, on September 19, 2002, the White House proposed legislation to authorize the use

of military force against Iraq. This draft would have authorized the President to use military force

not only against Iraq but “to restore international peace and security in the region.” Subsequently

introduced as S.J.Res. 45 on September 26, the Senate from October 3 to October 11 debated the

desirability, necessity, and scope of the proposed legislation.

The President’s proposal was not formally introduced in the House. Instead, Speaker of the House

Dennis Hastert and Minority Leader Richard Gephardt introduced H.J.Res. 114 on October 2,

2002, which included generally accepted modifications to the President’s proposal. The House

International Relations Committee reported out a slightly amended version of the joint resolution

on October 7, 2002 (H.Rept. 107-721). The House adopted the rule governing debate on the joint

resolution (H.Res. 474) on October 8, 2002; and debated the measure until October 10, when it

passed H.J.Res. 114 by a vote of 296-133. Subsequently, the Senate passed the House version of

(...continued)

U.S. Department of Justice White Paper on NSA Legal Authorities (“Legal Authorities Supporting the Activities of

the National Security Agency Described by the President”) (“DOJ White Paper”) (January 19, 2006),

http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf. For an analysis of the Administration position as

presented prior to the DOJ White Paper, see CRS Report R40888, Presidential Authority to Conduct Warrantless

Electronic Surveillance to Gather Foreign Intelligence Information, by (name redacted) and (name redacted).

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), rev’g 415 F.3d 33 (D.C. Cir. 2005). For a summary and analysis, see

CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions in the “Global War on Terrorism”, by (name redact

ed).

White House, “President’s Remarks at the United Nations General Assembly,” press release, September 12, 2002,

http://georgewbush-whitehouse.archives.gov/news/releases/2002/09/print/20020912-1.html; White House, “President

Discusses Iraq, Domestic Agenda with Congressional Leaders,” press release, September 18, 2002,

http://georgewbush-whitehouse.archives.gov/news/releases/2002/09/print/20020918-1.html.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

H.J.Res. 114 on October 11 by a vote of 77-23, and President Bush signed the Authorization for

Use of Military Force against Iraq Resolution of 2002 into law on October 16, 2002.46

In signing H.J.Res. 114 into law, President Bush stated that by passing this legislation Congress

had demonstrated that “the United States speaks with one voice on the threat to international

peace and security posed by Iraq.” He added that the legislation carried an important message that

“Iraq will either comply with all U.N. resolutions, rid itself of weapons of mass destruction, and

... its support for terrorists, or will be compelled to do so.” While the President noted he had

sought a “resolution of support” from Congress to use force against Iraq, and appreciated

receiving that support, he also stated that “... my request for it did not, and my signing this

resolution does not, constitute any change in the long-standing positions of the executive branch

on either the President’s constitutional authority to use force to deter, prevent, or respond to

aggression or other threats to U.S. interests or on the constitutionality of the War Powers

Resolution.”

President Bush went on to state that on the “important question of the threat posed by Iraq,” his

views and goals and those of Congress were the same. He further observed that he had extensive

consultations with Congress in the past months, and that he looked forward to “continuing close

consultation in the months ahead.” He stated his intent to submit written reports to Congress

every 60 days on matters “relevant to this resolution.”47

The central element of P.L. 107-243 is the authorization for the President to use the armed forces

of the United States “as he determines to be necessary and appropriate in order to—(1) defend the

national security of the United States against the continuing threat posed by Iraq; and (2) enforce

all relevant United Nations Security Council resolutions regarding Iraq.”

As predicates for the use of force, the statute requires the President to communicate to Congress

his determination that the use of diplomatic and other peaceful means will not “adequately protect

the United States ... or ... lead to enforcement of all relevant United Nations Security Council

resolutions” and that the use of force is “consistent” with the battle against terrorism. Like P.L.

102-1 and P.L. 107-40, the statute declares that it is “intended to constitute specific statutory

authorization within the meaning of section 5(b) of the War Powers Resolution.” It also requires

the President to make periodic reports to Congress “on matters relevant to this joint resolution.”

Finally, the statute expresses Congress’s “support” for the efforts of the President to obtain

“prompt and decisive action by the Security Council” to enforce Iraq’s compliance with all

relevant Security Council resolutions.

P.L. 107-243 clearly confers broad authority on the President to use force. In contrast to P.L. 1021, the authority granted is not limited to the implementation of previously adopted Security

Council resolutions concerning Iraq but includes “all relevant ... resolutions.” Thus, it appears to

have incorporated resolutions concerning Iraq that were subsequently adopted by the Security

Council at least up to the expiration of the UN mandate on December 31, 2008, as well as those

P.L. 107-243; 116 Stat. 1498. For a detailed side-by-side comparison of the House and Senate versions of the

authorization of force against Iraq legislation and proposed amendments see CRS Report RL31596, Iraq: Authorization

of Use of U.S. Armed Forces—Side-By-Side Comparison of Public Law 107-243 and Selected Legislative Proposals, by

(name redacted).

George W. Bush: "Statement on Signing the Authorization for Use of Military Force Against Iraq Resolution of

2002," October 16, 2002, available online by Gerhard Peters and John T. Woolley, The American Presidency Project.

http://www.presidency.ucsb.edu/ws/?pid=64386.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

resolutions adopted prior to the enactment of P.L. 107-243. The authority also appears to extend

beyond compelling Iraq’s disarmament to implementing the full range of concerns expressed in

those resolutions. Unlike P.L. 107-40, the President’s exercise of the authority granted is not

dependent upon a finding that Iraq was associated in some direct way with the September 11,

2001, attacks on the United States. Moreover, the authority conferred can be used for the broad

purpose of defending “the national security of the United States against the continuing threat

posed by Iraq.” Nevertheless, P.L. 107-243 is narrower than P.L. 107-40, as well as President

Bush’s originally proposed authorization, in that it limits the authorization for the use of force to

Iraq. It also requires as a predicate for the use of force that the President determine that peaceful

means cannot suffice and that the use of force against Iraq is consistent with the battle against

terrorism.48 P.L. 107-243 further limits the force used to that which the President determines is

“necessary and appropriate.” Finally, as with P.L. 107-40, the statutory authorization for use of

force granted to the President in P.L. 107-243 is not dependent for its exercise upon prior

authorization by the U.N. Security Council.

The Bush and Obama Administrations relied on P.L. 107-243’s authorities to maintain the

presence of U.S. armed forces and to conduct military operations in Iraq until the withdrawal of

U.S. armed forces in December 2011. After initial invasion operations and the removal of the

Saddam Hussein regime from power, U.S. military operations in Iraq continued under P.L. 107243 authority. Both the Bush and Obama Administrations considered Iraq a continuing threat to

U.S. national security interests; in addition, U.S. armed forces were enforcing relevant U.N.

Security Council resolutions regarding Iraq. Relevant U.N. resolutions included the creation in

2003 of the Multinational Force in Iraq (MNF-I), of which U.S. armed forces made up the

significant majority. The United Nations Security Council ultimately terminated the MNF-I on

December 1, 2008.49 Beginning January 1, 2009, U.S. armed forces remained in Iraq pursuant to

an agreement between Iraq and the United States that set the date for withdrawal of such forces

on December 31, 2011.50 At the time of the U.S.-Iraq agreement, it was argued that the end of the

U.N. mandate required a new authorization for continued U.S. military presence in Iraq, and that

the agreement itself needed congressional approval either by submission to the Senate as a treaty

for advice and consent, or by general legislative approval.51 Congress continued to provide funds

for military operations in Iraq, however, and legislative efforts to repeal P.L. 107-243 or otherwise

bring about an end to the U.S. military presence in Iraq did not succeed.52

In March 2003, President George W. Bush reported to Congress the determination that was required by P.L. 107-243

regarding his exercise of authority for military operations against Iraq. House Document 108-50. March 19, 2003. A

report in connection with Presidential Determination under P.L. 107-243. Communication from the President of the

United States transmitting a report consistent with Section 3(b) of the Authorization for Use of Military Force Against

Iraq Resolution of 2002.

See UNSC Resolution 1511 (October 16, 2003), UNSC Resolution 1546 (June 8, 2004), UNSC Resolution 1637

(November 8, 2005), UNSC Resolution 1723 (November 28, 2006), and UNSC Resolution 1790 (December 18, 2007).

Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States

Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, Article 12,

November 17, 2008 [hereinafter Withdrawal Agreement], http://www.state.gov/documents/organization/122074.pdf.

For a more comprehensive overview of the Withdrawal Agreement, see CRS Report R40011, U.S.-Iraq

Withdrawal/Status of Forces Agreement: Issues for Congressional Oversight, by (name redacted).

See, e.g., U.S. Congress, House Committee on International Relations, Subcommittee on Middle East and South Asia

and the Subcommittee on International Organizations, Human Rights, and Oversight, 110th Cong., March 4, 2008

(statement of Prof. Oona Hathaway). On this issue, see generally CRS Report RL33837, Congressional Authority to

Limit U.S. Military Operations in Iraq, by (name redacted), (name redacted), and (name redacted).

President Bush vetoed a supplemental appropriations bill to fund the war that would have set conditions and a

deadline for ending some military operations, arguing in part that some of its provisions are unconstitutional. H.R. 1591

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

P.L. 107-243 does not include provision for automatic termination of its use of force

authorization, and Congress has not repealed the legislation. Thus P.L. 107-243 remains current

U.S. law, although its continued effectiveness is questionable. Arguably, the President could rely

on P.L. 107-243 to reintroduce U.S. armed forces into Iraq if he determined that Iraq once again

posed a threat to U.S. national security, or in order to enforce relevant U.N. resolutions, as the

legislation provides in its authorization language. Nevertheless, any presidential decision to again

utilize the authority for use of military force in P.L. 107-243 would likely meet renewed

resistance from some Members of Congress, as well as other observers who have argued for

repeal of open-ended use of force authorizations such as this.

Implications Under International Law

Traditionally, peace and war have been deemed under international law to be distinctive forms of

relations between states. Thus, peace has been defined as “a condition in which States maintain

order and justice, solve their problems by cooperation, and eliminate violence. It is a condition in

which States respect each other’s sovereignty and equality, refrain from intervention and the

threat or use of force and cooperate with one another in accordance with the treaties which they

have concluded.”53

War, in contrast, has been described as “a condition of armed hostility between States,”54 “a

contention, through the use of armed force, between states, undertaken for the purpose of

overpowering another.”55 War has been said to terminate or suspend the laws and customs that

prevail in peacetime and to substitute for them the laws of war. Under the traditional laws of war

enemy combatants can be killed, prisoners of war taken, the enemy’s property seized or

destroyed, enemy aliens interned, and other measures necessary to subdue the enemy and impose

the will of the warring state taken.56 Moreover, the existence of a state of war traditionally has

(...continued)

(110th Cong.). For a description of the vetoed bill, see CRS Report RL33837, Congressional Authority to Limit U.S.

Military Operations in Iraq, by (name redacted), (name redacted), and (name redacted).

Other efforts in the 110th Congress included H.R. 1460 (to repeal 2002 resolution); H.R. 1262 (same); S. 679 (to

declare that objectives of 2002 resolution had been achieved, and require redeployment of forces from Iraq); S.J.Res. 3

(to establish expiration date for 2002 resolution); S. 670 (to require new military authorization unless certain objectives

are met); H.R. 930 (to repeal 2002 resolution); H.R. 508 (same); H.R. 413 (same). Efforts in the 111th Congress

included H.R. 335 (to prohibit entry into force of security arrangement with Iraq that was not made with Senate advice

and consent), H.R. 66 (to repeal 2002 resolution and require troop withdrawal), H.Res. 72 (sense of the House that the

Withdrawal Agreement is not legally binding).

Skubiszewski, Krzysztof, “Peace and War,” Encyclopedia of Public International Law, Vol 4 (1982), at 74-75.

Hyde, Charles Cheney, International Law Chiefly as Interpreted and Applied by the United States, Vol. 3 (1945), at

1686.

von Glahn, Gerhard, Law Among Nations (6th ed.) (1992), at 669.

In his treatise Law of Nations (1858), at 346, Emmerich de Vattel stated the general principles governing the conduct

of war as follows:

As soon, therefore, as we have declared war, we have a right to do against the enemy whatever we

find necessary for the attainment of that end—for the purpose of bringing him to reason, and

obtaining justice and security from him.

The lawfulness of the end does not give us a real right to anything further than barely the means

necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of

nature, is faulty, and condemnable at the tribunal of conscience. Hence it is that the right to such or

such acts of hostility varies according to circumstances. What is just and perfectly innocent in war,

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

been deemed to terminate diplomatic and commercial relations and most of the treaty obligations

existing between the warring States.57 A state of war also has brought into play the law of

neutrality with respect to relations between the belligerent and non-belligerent States.

In this traditional understanding a declaration of war has been deemed, in and of itself, to have

the effect of creating a state of war and changing the relationship between the states involved

from one of peace to one of war. That has been the case even if no hostilities actually occur. Some

question exists as to whether international law traditionally deemed a declaration of war to be a

necessary prerequisite to the existence of a state of war;58 but it is clear that under international

law a declaration of war has been viewed as “creating the legal status of war ... [and giving]

evidence that peace has been transmuted into war, and that the law of war has replaced the law of

peace.”59

Authorizations for the use of force, in contrast, have not been seen as automatically creating a

state of war under international law. The U.S. Court of Claims, in construing the statutes

authorizing the limited use of force against France in 1798, described how their effects differed

from those that followed in the wake of a war:

[Our naval vessels] might seize armed vessels only, and only those armed vessels which had

already committed depredations, or those which were on our coast for the purpose of

(...continued)

in one particular situation, is not always so on other occasions. Right goes hand in hand with

necessity and the exigency of the case, but never exceeds them.

Cushman K. Davis, A Treatise on International Law (1901), at 141 stated:

War abrogates all treaties between the belligerents; its suspends all commercial intercourse and

relations between their respective subjects, and makes them unlawful; it dissolves all partnerships

between subjects of the belligerents; it suspends the operation of all executory contracts during the

war.... It open a great gulf of non-intercourse between the two nations, and imposes disability upon

the subjects of each to do any kind of civil business with those of the other....

Commentators differ on this issue. Grotius claimed that a declaration was a necessary precondition to the existence

of a war. See Ingrid Detter, The Law of War (2000), at 10. Vattel said a declaration communicated to the enemy was

demanded by “humanity” prior to the inception of a war, served as an inducement to the enemy to “terminate the

difference without the effusion of blood,” and was “the constant practice among the powers of Europe.” Vattel, supra

footnote 56, at 315. But he also stated that “there seems to be no absolute necessity for a formal declaration of war to

render it legal.” Id. at 316. Kent’s Commentary on International Law (1878), at169-171, stated:...

[I]t has become settled by the practice of Europe that war may lawfully exist by a declaration which

is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. Since

the Peace of Versailles in 1763, formal declarations of war of any kind seem to have been

discontinued, and all the necessary and legitimate consequences of war flow at once from a state of

public hostilities, duly recognized, and explicitly announced, by a domestic manifesto or State

paper.”

A legal requirement of a formal declaration of war was included in the Hague Convention (III) Relative to the Opening

of Hostilities, negotiated in 1907 and ratified by 42 countries (including the U.S.), which stated as follows:

The Contracting Powers recognize that hostilities between themselves must not commence without

previous and explicit warning, in the form either of a reasoned declaration of war or of an

ultimatum with conditional declaration of war.

Although this treaty remains in effect for its Parties, its requirement regarding a declaration of war has generally fallen

into desuetude; and a declaration generally is no longer regarded as a legal prerequisite to the use of force. Von Glahn,

supra footnote 55, at 600, states: “ ... [G]eneral opinion has sanctioned a commencement of hostilities without issuing a

declaration of war or other formal notice of intent to resort to the use of force.”

Eagleton, Clyde, “The Form and Function of the Declaration of War,” 38 American Journal of International Law 19,

21 (1938).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

committing depredations, and they might retake an American vessel captured by such an

armed vessel. This statute is a fair illustration of the class of laws enacted at this time; they

directed suspension of commercial relations until the end of the next session of Congress, not

indefinitely ...; they gave power to the President to apprehend the subjects of hostile nations

whenever he should make “public proclamation” of war ..., and no such proclamation was

made; they gave him authority to instruct our armed vessels to seize French “armed,” not

merchant, vessels ..., together with contingent authority to augment the army in case war

should break out or in case of imminent danger of invasion....

If war existed, why authorize our armed vessels to seize French armed vessels? War itself

gave that right, as well as the right to seize merchantmen which the statutes did not permit. If

war existed why empower the President to apprehend foreign enemies? War itself placed that

duty upon him as a necessary and inherent incident of military command. Why, if there was

war, should a suspension of commercial intercourse be authorized, for what more complete

suspension of that intercourse could there be than the very fact of war?

There was no declaration of war; the tribunals of each country were open to the other—an

impossibility were war in progress; diplomatic and commercial intercourse were admittedly

suspended; but during many years there was no intercourse between England and Mexico,

which were not at war; there was retaliation and reprisal, but such retaliations and reprisals

have often occurred between nations at peace; there was a near approach to war, but at no

time was one of the nations turned into an enemy of the other in such manner that every

citizen of the one became the enemy of every citizen of the other; finally, there was not that

kind of war which abrogated treaties and wiped out, at least temporarily, all pending rights

and contracts, individual and national.60

Whether this traditional understanding of war and of the effect of a declaration of war continues

to be viable is a matter of considerable dispute among scholars. The right of a state to initiate war,

many contend, has been outlawed by such international agreements as the Kellogg-Briand Peace

Pact and the Charter of the United Nations. In the Kellogg-Briand Peace Pact,61 for instance, the

Parties stated that they “condemn recourse to war for the solution of international controversies,

and renounce it as an instrument of national policy in their relations with one another.”62 After

World War II the Nuremberg Tribunal gave teeth to this commitment by ruling that the Pact

rendered aggressive war illegal under international law and makes those who plan and wage such

a war guilty of a crime.63 The Charter of the United Nations, in turn, states one of its purposes to

be “to save succeeding generations from the scourge of war,” and it requires its Members “to

refrain from the threat or use of force against the territorial integrity or political independence of

any State, or in any other manner inconsistent with the Purposes of the United Nations.”64

Moreover, it provides for a system of collective security through the Security Council as the

Gray v. United States, 21 Ct.Cl. 340, 373 (1886).

Treaty Providing for the Renunciation of War As an Instrument of National Policy, 46 Stat. 2343 (1929); TS 796; 2

Bevans 732.

Id., Art. I.

The Tribunal stated:

In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy

necessarily involves the proposition that such a war is illegal in international law; and that those

who plan and wage such a war, with its inevitable and terrible consequences, are committing a

crime in so doing.

See “International Military Tribunal (Nuremberg): Judgment and Sentences,” 41 American Journal of International

Law 172, 218 (1947).

UN Charter, 59 Stat. 1031, Preamble and Article 2(4).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

primary means of maintaining or restoring international peace and security.65 Both instruments, it

is contended, recognize that the concept of war as a legal right of states, except in self-defense,66

has been superseded. (The United States, of course, is a Party not only to the Charter but also to

the Pact, and it still regards the latter as continuing to be in force.67) Whether the traditional

concept of war remains valid has been further complicated by the increasing participation in

armed conflict of non-State actors such as insurgents, freedom fighters, and terrorists.

The clarity of the consequences of a state of war in traditional international law has also become

muddied in the modern era. Most States since 1945, even when engaged in armed conflict, have

resisted describing the conflict as a war.68 States so engaged have not always automatically

terminated diplomatic and commercial relationships,69 and the discontinuance of treaty

obligations has increasingly been deemed to require a treaty-by-treaty examination.70 Moreover,

conventions that attempt to regulate the means used to wage war, such as the Hague Conventions

and other more recent agreements,71 and those that attempt to ameliorate the consequences of war

for certain categories of persons, such as the Geneva Conventions,72 are deemed to apply to

armed conflicts regardless of what label the Parties attach to them. A state of war still gives rise to

“a mutual right to kill in battle,”73 triggers application of the various conventions regulating the

Id. Ch. VII.

The right of self-defense is explicitly recognized in Article 51 of the Charter, which states that “Nothing in the

present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against

a Member of the United Nations....”

Department of State, Treaties in Force: A List of Treaties and other International Agreements of the United States in

Force on January 1, 2002 (August 2002), at 454.

Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (1995), at 39.

The modern codification of the law of diplomatic relations—the Vienna Convention on Diplomatic Relations, 23

UST 3227 (1972)—does not specifically address the effect of a declaration of war or of an authorization for the use of

force but does address what is required in cases of “armed conflict.” Whenever diplomatic relations are broken, the

Convention requires that diplomatic privileges and immunities not cease until the diplomat leaves the country and that

the receiving state assist diplomats and their families in leaving “at the earliest possible moment, ... even in case of

armed conflict” (Articles 38 and 44). The Convention also requires that a state respect and protect the premises of a

diplomatic mission and its property and archives during any time in which diplomatic relations have been broken,

including “in the case of armed conflict” (Article 45(a)).

The modern tendency appears to be to deem treaties as remaining in effect to the greatest extent possible. See

generally, von Glahn, Gerhard, Law Among Nations (1992), at 715-716.

See The Hague Convention Respecting the Laws and Customs of War on Land, 32 Stat. 1803 (1902); the Hague

Convention (III) Relative to the Opening of Hostilities, 36 Stat. 2259 (1910); the Hague Convention (IV) Respecting

the Laws and Customs of War on Land, 36 Stat. 2277 (1910); the Hague Convention (V) Respecting the Rights and

Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat. 2310 (1910); the Hague Convention (VII)

Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332 (1910); the Hague Convention (IX)

Concerning Bombardment by Naval Forces in Time of War, 36 Stat. 2351 (1910); the Hague Convention (XI) Relative

to Certain Restrictions With Regard to the Exercise of the Right of Capture in Naval War, 36 Stat. 2396 (1910); the

Hague Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, 36 Stat. 2415 (1910); The

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological

Methods of Warfare, 26 UST 571 (1975) and The Convention on the Prohibition of Military or Any Other Hostile Use

of Environmental Modification Techniques, 31 UST 333 (1980). The United States is a Party to all of these

conventions.

The four Geneva Conventions apply to the treatment of those in the armed forces who are wounded and sick in the

field, those who are shipwrecked, prisoners of war, and civilian populations. See Convention (I) for the Amelioration of

the Condition of the Wounded and Sick in Armed Forces in the Field, 6 UST 3114 (1956); Convention (II) for the

Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 6 UST 3217

(1956); Convention (III) Relative to the Treatment of Prisoners of War, 6 UST 3316 (1956); and Convention (IV)

Relative to the Protection of Civilian Persons in Time of War, 6 UST 3516 (1956).

Alexander Hamilton, “The Examination No. 1,” (December 17, 1801), reprinted in 25 The Papers of Alexander

(continued...)

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

means of waging war as well as of the general principles of necessity and proportionality, and

brings into play the Geneva Conventions. But its other legal consequences seemingly have

become less determinate.

Perhaps as a consequence of these developments, declarations of war have fallen into disuse and

are virtually never issued in modern conflicts. One commentator asserts that since 1945 “[t]here

are no cases of a formal declaration of war having been delivered by one state to another through

diplomatic channels....”74 As noted above, the United States last declared war in 1942 against

Rumania and has since adopted only authorizations for the use of force.

Thus, declarations of war may have become anachronistic in contemporary international law. The

legal right of States to engage in war has seemingly become constrained (for other than defensive

purposes), and the most salient international laws regarding the means of waging war and the

protection of certain categories of persons apply to the circumstance of armed conflict regardless

of whether war has been declared. That circumstance can arise in the wake of an authorization to

use force as well. States likely still retain a right to issue declarations of war, at least in exercising

the right of self-defense; and such a declaration seemingly would still automatically create a state

of war. But it is not clear that the legal consequences under international law that would flow

from a declaration differ dramatically from those that occur if an armed conflict comes into being

pursuant to an authorization for the use of force.

Implications Under Domestic Law

Early American jurisprudence drew a distinction between general, or perfect, war and limited, or

imperfect, war, and understood a declaration of war under Article I, Section 8, of the Constitution

to commit the nation to a general war. Justice Washington, in Bas v. Tinghy,75 described the

distinction as follows:

It may, I believe, be safely laid down, that every contention by force between two nations, in

external matters, under the authority of their respective governments, is not only war, but

public war. If it be declared in form, it is called solemn, and is of the perfect kind; because

one whole nation is at war with another whole nation; and all the members of the nation

declaring war are authorised to commit hostilities against all the members of the other, in

every place, and under every circumstance. In such a war all the members act under a general

authority, and all the rights and consequences of war attach to their condition.

... [H]ostilities may subsist between two nations more confined in its nature and extent; being

limited as to places, persons, and things; and this is more properly termed imperfect war;

because not solemn, and because those who are authorised to commit hostilities, act under

special authority, and can go no farther than to the extent of their commission. Still,

(...continued)

Hamilton 455 (Syrett, ed., 1977), quoted in J. Gregory Sidak, “To Declare War,” 41 Duke Law Journal 27 (1991), at

62. The full quote reads: “War, of itself, gives to the parties a mutual right to kill in battle.... This is a rule of natural

law; a necessary and inevitable consequence of the state of war.”

Id. at 203.

U.S. (4 Dall.) 37, 40 (1800).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

however, it is public war, because it is an external contention, by force, between some of the

members of the two nations, authorised by the legitimate powers.76

Justice Chase, more simply, stated: “Congress is empowered to declare a general war, or congress

may wage a limited war; limited in place, in objects, and in time.”77

Thus, at least in the 18th and 19th centuries, authorizations for the use of force were understood to

be included within Congress’s power to declare war and to have narrower legal consequences

than declarations of war. Declarations were reserved for general war against particular countries

and empowered the President “to use the whole land and naval force of the United States”

(United Kingdom in 1812), “to employ the militia, naval, and military forces of the United

States” (Mexico in 1846), or “to use the entire land and naval forces of the United States” (Spain

in 1898) to prosecute the war. Authorizations, in contrast, allowed the President to use the

American navy against the vessels of France, the Bey of Tripoli, and the Dey of Algiers, or

against piracy generally.

In the modern era authorizations have sometimes been quite broad78; and some have, arguably,

been equivalent in scope to a declaration of war. But the domestic legal consequences that flow

from such authorizations still are substantially more limited than those that would flow from a

declaration of war.

Both declarations of war and authorizations for the use of force have the effect of eliminating the

time limits otherwise imposed on the President’s use of the armed forces under the War Powers

Resolution; and both may legitimate the killing of foreign officials that might otherwise be

prohibited by the executive order on assassinations. The capture of enemy combatants on the

battlefield and their detention until hostilities have subsided is implied in an authorization to use

ground forces,79 just as it would be included in a formal declaration of war.

But a declaration of war automatically brings into effect a number of statutes that confer special

powers on the President and the Executive Branch, especially concerning measures that have

domestic effect. A declaration, for instance, activates statutes that empower the President to

interdict all trade with the enemy, order manufacturing plants to produce armaments and seize

them if they refuse, control transportation systems in order to give the military priority use, and

command communications systems to give priority to the military. A declaration triggers the

Alien Enemy Act, which gives the President substantial discretionary authority over nationals of

an enemy state who are in the United States. It activates special authorities to use electronic

surveillance for purposes of gathering foreign intelligence information without a court order

under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the armed

Id.

Id. at 43.

See, e.g., P.L. 107-40 (September 18, 2001) (authorizing the President to use “all necessary and appropriate force

against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist

attacks that occurred on September 11, 2001....”) and P.L. 107-243 (October 16, 2002) (authorizing the President to the

use the armed forces “as he determines to be necessary and appropriate in order to—(1) defend the national security of

the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security

Council resolutions regarding Iraq.”

See Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (O’Connor, J., plurality opinion); id. at588-589 (Thomas, J.,

dissenting). The plurality interpreted the AUMF as authorizing the detention of a U.S. citizen captured in Afghanistan

as a “fundamental incident of waging war,” and was thus a statute authorizing detention within the meaning of the NonDetention Act, 18 U.S.C.A. §4001(a), which prohibits the detention of any citizen absent an act of Congress.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

forces until the end of the war, can make the Coast Guard part of the Navy, gives the President

substantial discretion over the appointment and reappointment of commanders, and allows the

military priority use of the natural resources on the public lands and the continental shelf.

An authorization for the use of force does not automatically trigger any of these standby statutory

authorities. Some of them can come into effect if a state of war in fact comes into being after an

authorization for the use of force is enacted; and the great majority of them, including many of

the most sweeping ones, can be activated if the President chooses to issue a proclamation of a

national emergency. But an authorization for the use of force, in itself and in contrast to a

declaration of war, does not trigger any of these standby authorities.

On the other hand, the authorization to use force in response to the terrorist attacks of 2001 has

been asserted as legal authority for executive actions in the domestic context, the validity of

which remains unresolved. The executive branch asserted that the authorization permits detention

without trial of persons arrested in the United States on suspicion of Al Qaeda related terrorism,

which it regarded as bolstered by the Supreme Court’s Hamdi decision finding the detention of

enemy combatants captured in Afghanistan to be authorized as “a fundamental incident of waging

war.”80 While there is limited authority to support military trials of enemy soldiers captured

within the United States, in previous wars the Alien Enemy Act would likely have been the chief

means of interning suspected enemies domestically.81 Under the executive branch view, the

authorization to use force could be construed as broader than a declaration of war in that it is seen

to authorize detention powers without any of the few rules or restrictions specified in the Alien

Enemy Act, and to authorize the detention of U.S. citizens as an exception to the Non-Detention

Act.82 Similarly, the executive branch argued that the authorization to use force must also be read

to permit the conduct of certain types of electronic surveillance outside of the strictures of the

Foreign Intelligence Surveillance Act, even though that act provides for only a two-week

exception triggered by a declaration of war.83 Accordingly, it is possible that any similarly broad

authorization to use force may be read to authorize any power that may properly be regarded as

“a fundamental incident of waging war” under the circumstances, at least as implied exceptions to

statutes that admit of statutory exception.

Hamdi, 542 at 519.

For a historical overview of wartime detention in the United States, see CRS Report R42337, Detention of U.S.

Persons as Enemy Belligerents, by (name redacted).

18 U.S.C. §4001(a) provides that “No citizen shall be imprisoned or otherwise detained by the United States except

pursuant to an Act of Congress.” The 4th Circuit Court of Appeals validated the detention of a U.S. citizen on the basis

of his presence during hostilities in Afghanistan, but the government transferred the petitioner to federal court for trial

on terrorism charges before the Supreme Court could take the case on appeal. Padilla v. Hanft, 423 F.3d 386 (4th Cir.),

motion to vacate denied 432 F.3d 582 (4th Cir. 2005), cert. denied 547 U.S. 1062 (2006). A plurality of the 4th circuit

sitting en banc upheld the detention of a non-citizen suspected of being a “sleeper agent” for Al Qaeda, although the

court did not agree on a definition of “enemy combatant,” or individual subject to detention. The Supreme Court

vacated the decision at the request of the government after the petitioner was transferred to federal court for trial on

terrorism charges. Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008)(per curiam), vacated and remanded sub nom.

Al-Marri v. Sapagone, 129 s.Ct. 1545 (2009). For more background on these cases, see CRS Report R41156, Judicial

Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by (name redacted) and (name redacte

d); CRS Report R42337,

Detention of U.S. Persons as Enemy Belligerents, by (name redacted).

The Bush Administration argued that intelligence collection is authorized as an incident to the use of force, and that

restrictions under FISA therefore did not apply to electronic surveillance conducted for anti-terrorism purposes because

section 109 of FISA provides an exception to the criminal prohibition against electronic surveillance unless “authorized

by statute.” (50 U.S.C.A. §1809, prior to 2008 amendment to clarify meaning of “authorized by statute”). Congress

passed the Protect America Act, P.L. 110-55, to provide additional authority for electronic surveillance.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

The following subsections give an overview of some of the more salient domestic legal

consequences of a declaration of war or authorization for the use of force. They are followed by a

section setting forth a detailed list of the standby statutory authorities that can be triggered by a

declaration of war, a state or war, and/or a proclamation of national emergency.

The War Powers Resolution

Both a declaration of war and an authorization for the use of force have significant implications

with respect to the War Powers Resolution (WPR).84 The WPR was enacted over President

Nixon’s veto in 1973 purportedly to restore a congressional role in authorizing the use of force

that was thought by many to have been lost in the Cold War and the Vietnam War. To that end the

WPR mandates that the President consult with the Congress “in every possible instance” prior to

introducing U.S. armed forces into hostilities and regularly afterwards. Section 4(a) of the WPR

further requires the President, “in the absence of a declaration of war,” to report to Congress

within 48 hours in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly

indicated by the circumstances;

(2) 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; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat

already located in a foreign nation.

Section 5(b) of the Resolution, in turn, requires that if a report has been submitted or was required

to be submitted under Section 4(a)(1) above, the President shall terminate the involvement of

U.S. forces unless Congress

(1) has declared war or has enacted a specific authorization for such use of United States

Armed Forces;

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States.85

Thus, congressional enactment of either a declaration of war or an authorization for the use of

force pursuant to Section 5(b) has the effect of tolling the 60-90 day withdrawal mandate of the

WPR.

Each of the last three authorizations for the use of force enacted—the 1991 Gulf War

authorization, the September 18, 2001, authorization with respect to terrorist attacks, and the

October 16, 2002, authorization with respect to Iraq—have explicitly stated that they constitute

the authorization required by Section 5(b) of the WPR. Each, in other words, has tolled the 60-90

day limitation that the WPR otherwise would impose on the use of military force by the

President. All three authorizations have further specified that “[n]othing in this resolution

50 U.S.C.A. §1541 et seq.

Id., §1544(b).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

supersedes any requirement of the War Powers Resolution.” That appears to mean that the

consultation and reporting requirements of the WPR still apply.

Trading with the Enemy Act and the

International Emergency Economic Powers Act

Two related statutes, the Trading With the Enemy Act86 (TWEA) and the International Emergency

Economic Powers Act87 (IEEPA), grant the President extraordinary powers to control foreignowned property and foreign trade transactions with designated countries under certain exceptional

circumstances. TWEA comes into effect upon a declaration of war or the existence of a state of

war, while IEEPA is triggered solely by a presidential declaration of national emergency. Neither

statute is triggered by an authorization for the use of force (unless, in the case of TWEA, the

authorization eventually leads to the existence of a state of war). IEEPA is the authority most

commonly invoked to freeze or block the assets of foreign states, companies, or individuals

located within the jurisdiction of the United States.

Until 1977 the broad range of economic authorities granted by TWEA could be exercised both in

times of war and in times of national emergency. However, in 1977 Congress limited the

prospective application of TWEA to times of declared or undeclared war only and enacted IEEPA

to apply during times of a national emergency declared by the President. Under TWEA the

President may

(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit

or payments or payments between, by, through, or to any banking institution, and the

importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion,

currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any

acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or

exportation of, or dealing in, or exercising any right, power, privilege with respect to, or

transactions involving, any property in which any foreign country or a national thereof has

any interest, by any person, or with respect to any property, subject to the jurisdiction of the

United States; and any property or interest of any foreign country or national thereof shall

vest, when, as, and upon the terms, directed by the President, in such agency or person as

may be designated from time to time by the President, and upon such terms and conditions as

the President may prescribe such interest or property shall be held, used, administered,

liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United

States....88

IEEPA replicates many of TWEA’s powers to regulate international transactions,89 but it does not

include TWEA authorities relative to purely domestic transactions, the regulation of bullion, and

seizure of records.90 It also does not contain TWEA’s general authority to take title to foreign

50 U.S.C. App. §§1 et seq.

50 U.S.C. §§1701 et seq.

50 U.S.C.A. Appx. §5(b).

50 U.S.C.A. §1702, as amended by P.L. 107-56, Title I, §106 (October 26, 2001).

See 50 U.S.C.A. Appx. §5(b). For an overview of TWEA and IEEPA and how their authorities compare, see Staff of

the House Ways and Means Committee, 111th Cong., Overview and Compilation of U.S. Trade Statutes, ch. 5 (WMCP

111-6, 2010).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

assets. But Congress did amend IEEPA in the “USA PATRIOT Act” in 2001 to authorize the

President to confiscate and take title to

any property, subject to the jurisdiction of the United States, of any foreign person, foreign

organization, or foreign country that he determines has planned, authorized, aided or engaged

in ... hostilities or attacks against the United States....91

Congress further amended both IEEPA and TWEA in the “Terrorism Risk Insurance Act of 2002”

to provide that the assets of foreign terrorist states that have been frozen in the U.S. pursuant to

either statute may be used to satisfy certain civil judgments against them.92

As noted, IEEPA is triggered solely by a declaration of national emergency, while TWEA applies

in time of war. Thus, TWEA is not dependent upon a declaration of war, but it can be triggered by

such a declaration. Neither appears to be triggered by an authorization for the use of force, unless

and until, in the case of TWEA, a state of war actually develops.

Other Economic Authorities

As noted, a declaration of war gives the President full authority over trade relations with the

enemy. Other statutes triggered by a declaration give the President the authority to order plants to

convert to the production of armaments and to seize those that refuse to do so,93 to take control of

the Tennessee Valley Authority in order to manufacture explosives or for other military

purposes,94 to assume control of transportation systems for military purposes,95 to condemn land

for military uses,96 to have the right of first refusal over natural resources,97 and to take control of

communications facilities.98 It also gives the President full power over agricultural exports.99 An

authorization for the use of force, in itself, does not trigger any of these authorities.

Alien Enemy Act

First enacted in 1798, the Alien Enemy Act100 broadly authorizes the President to deport, detain,

or otherwise condition the stay of alien enemies in the U.S. in cases of “declared war” or “any

invasion or predatory incursion ... perpetrated, attempted, or threatened against the territory of the

United States by any foreign nation or government....” The act implements the internationally

recognized right of every nation to protect itself during times of war from individuals whose

primary allegiance lies with a hostile foreign power. Given this premise, the Supreme Court has

P.L. 107-56, Title I, §106 (October 26, 2001).

P.L. 107-297, Title II, §201 (November 26, 2002).

10 U.S.C.A. §2538.

16 U.S.C.A. §831s.

10 U.S.C.A. §2644.

10 U.S.C.A. §2663(a).

43 U.S.C.A. §1314(b).

47 U.S.C.A. §606(a).

7 U.S.C.A. §5712(c).

100

50 U.S.C. §§21 et seq.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

observed that “[e]xecutive power over enemy aliens, undelayed and unhampered by litigation, has

been deemed, throughout our history, essential to war-time security.”101

The President must publicly proclaim the event that gives rise to activation of the act and make

regulations regarding the treatment of those aliens. But once he does so, his power to “apprehend,

restrain, secure, and remove” enemy aliens extends to all “natives, citizens, denizens, or subjects

of the hostile nation or government, being of the age of fourteen years and upward, who shall be

in the United States and not actually naturalized.”102 The President may intern or remove enemy

aliens or set lesser restraints on them, and may adopt any “regulations which are found necessary

in the premises and for the public safety.”103 Thus, President Woodrow Wilson, for example,

barred alien enemies during World War I from possessing firearms and explosives, coming within

a half a mile of a military facility or munitions factory, residing in certain areas, possessing

certain communications equipment, and publishing certain types of materials. President Franklin

D. Roosevelt authorized similar restrictions during World War II and, additionally, set up over

100 community hearing boards to make internment recommendations to the Attorney General.104

The procedural rights of aliens who are subject to the Alien Enemy Act are drastically restricted

compared with those that aliens otherwise enjoy, including hearing rights under the removal

provisions of the Immigration and Nationality Act.105 The scope of judicial review is equally

circumscribed.106 Among the few rights recognized under the act, alien enemies subjected to

removal may, if not chargeable with “actual hostility” or other crime against public safety, be

entitled to the time allowed by applicable treaty or order to wind up his or her affairs here.107 A

very limited right to judicial review under a petition for a writ of habeas corpus also is

recognized. Generally, however, the power of the President to control alien enemies under the act

is extraordinary.

As noted, the act does not appear to be triggered solely by an authorization for the use of force.

Criminal Law

There are a number of civilian federal criminal law provisions that apply explicitly to specified

conduct in time of war. They do not appear to distinguish between circumstances involving a

declaration of war and other situations in which a state of war may exist absent a declaration of

war, although courts (and Congress) have in some cases construed “time of war” or “at war” to

require a formal declaration by Congress. Thus, these statutes may be triggered by a declaration

of war, but they also may apply in circumstances where a state of war is deemed to exist.

101

Johnson v. Eisentrager, 339 U.S. 763, 774 (1950).

50 U.S.C. §21.

103

Id.

104

See J. Gregory Sindak, War, Liberty, and Enemy Aliens, 67 N.Y.U.L. Rev. 1402, 1412-1419 (1992). President

Roosevelt also ordered thousands of Japanese-American citizens interned; but he did not rely explicitly on the Alien

Enemy Act to do so.

105

8 U.S.C. §§1101 et seq. See, e.g., 8 U.S.C. §240.

106

See Ludecke v. Watkins, 335 U.S. 160 (1948) (“The very nature of the President’s power to order the removal of all

enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion.”).

107

50 U.S.C.A. §22.

102

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

Consequently, these criminal prohibitions do not appear to be triggered by an authorization for

the use of force, unless and until a state of war develops. These statutes include, for example:108

(a) 18 U.S.C.A. Section 443 (willful secreting, mutilating, obliterating or destroying records

of a war contractor, that is, a holder of a prime or subcontract connected with or related to

the prosecution of a war);

(b) 18 U.S.C.A. Section 757 (procuring the escape of a prisoner of war held by the United

States or any of its allies or the escape of an apprehended or interned enemy alien held by the

United States or its allies; aiding or assisting such escape or assisting the prisoner of war or

enemy alien after his escape; or attempting or conspiring to do any of the above);

committed or to be about to commit an offense under 18 U.S.C. §§793 or 794);

(d) 18 U.S.C.A. Section 793 (gathering, transmitting or losing information related to the

national defense with the intent or reason to believe that it is to be used to the injury of the

United States or to the benefit of a foreign nation. Includes, among other things, such actions

with respect to information on any place in which any vessel, aircraft, arms, munitions, or

other materials or instruments for use in time of war are being prepared, repaired, stored, or

are the subject of research or development; or with respect to any prohibited place so

designated by the President by proclamation in time or war or in case of national emergency

in which anything for the use of the Army, Navy, or Air Force is being prepared,

constructed, or stored);

(e) 18 U.S.C.A. Section 794 (gathering or delivering information relating to the national

defense with the intent or reason to believe that it is to be used to the injury of the United

States or to the advantage of a foreign nation. Subsection (b) deals with recording,

publishing, or communicating or attempting to elicit information regarding movements,

numbers, condition or disposition of Armed Forces, ships, aircraft or war materials, with the

intent that the information be communicated to the enemy in time of war. It also covers

communicating to the enemy in time of war information on plans or conduct of naval or

military operations or defense measures.)109

(f) 18 U.S.C.A. Section 1038 (making a false statement, with intent to convey false or

misleading information, about the death, injury, capture, or disappearance of a member of the

Armed Forces of the United States during a war or armed conflict in which the United States

is engaged);

(g) 18 U.S.C.A. Section 1091 (genocide in time of peace or in time of war);

(h) 18 U.S.C.A. Section 1653 (aliens who are found and taken on the sea making war against

the United States or engaging in piracy against U.S. vessels or property);

(i) 18 U.S.C.A. Section 2153 (when the United States is at war or when a national emergency

has been declared, willful destruction of war material, war premises, or war utilities, with

108

This list is intended to provide examples, rather than to be exhaustive.

It should be noted that other espionage provisions in 18 U.S.C.A. §§793-799 do not explicitly require a state or time

of war to apply, but would presumably apply in wartime as well as peacetime. Unlawful communication of, receipt of,

tampering with, or disclosure of restricted data with respect to special nuclear material is addressed in 42 U.S.C.A.

§§2274-77. Here again, wartime is not distinguished from other times in the application of these provisions.

109

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

intent or reason to believe that such actions may injure, interfere with, or obstruct the United

States or associate nations in their war or defense activities; and conspiracy to do so);

(j) 18 U.S.C.A. Section 2154 (in times of war or national emergency, willfully producing

defective war material, war premises, or war utilities with intent to injure, interfere with, or

obstruct the war or defense activities of the United States or associate nations);

(k) 18 U.S.C.A. Section 2381 and U.S. Constitution, Art. 3, Sec. 3, Cl. 1 (while owing

allegiance to the United States, levying war against the United States or adhering to its

enemies, giving them aid and comfort. Constitution requires confession in open court or

testimony of two witnesses to the same overt act to convict for treason);

(l) 18 U.S.C.A. Section 2382 (misprision of treason);

(m) 18 U.S.C.A. Section 2384 (seditious conspiracy to overthrow or destroy by force the

Government of the United States or to levy war against the United States);

(n) 18 U.S.C.A. Section 2388 (willfully engaging in certain activities in time of war with

intent to adversely affect armed forces of the United States or to obstruct enlistment or

recruitment; conspiracy to do so; harboring a person knowing or having reason to believe

that the person has engaged in such conduct);

(o) 18 U.S.C.A. Section 2389 (recruiting soldiers or sailors within U.S. jurisdiction to engage

in armed hostilities against the United States); and

(p) 18 U.S.C.A. Section 2441 (war crimes).

It should also be noted that other federal and state criminal law provisions,110 which do not draw

distinctions between conduct in time of war and at other times, also apply during wartime.111 For

example, 18 U.S.C.A. Section 175 prohibits knowing development, stockpiling, acquisition,

possession or retention of any biological agent, toxin, or delivery system for use as a weapon, or

knowing assistance to a foreign state to do so. 18 U.S.C.A. Section 229, with certain exceptions,

prohibits similar conduct with respect to chemical weapons. 18 U.S.C.A. Section 831 prohibits

specific transactions or actions involving nuclear materials, while 42 U.S.C.A. Section 2284 deals

with sabotage of nuclear facilities or fuel. 18 U.S.C.A. Section 2332a prohibits certain uses of

weapons of mass destruction. Other explosives offenses are covered in 18 U.S.C.A. Section 844.

Hostage-taking is addressed in 18 U.S.C.A. Section 1203, while kidnapping is covered by 18

U.S.C.A. Section 1201. 18 U.S.C.A. Section 1116 deals with murder or manslaughter of foreign

officials, official guests, or internationally protected persons. 18 U.S.C.A. Section 1114 addresses

the murder or attempted murder of federal officers and employees, including members of the

uniformed services, while they are engaged in or on account of the performance of official duties.

110

The provisions noted in this paragraph are intended as examples, rather than as an exhaustive list.

There are also a number of provisions in 18 U.S.C.A. §§958-67 that may be triggered by conduct during wars

involving other nations with whom the United States is at peace or during wars in which the United States is neutral.

These deal, for example, with: enlisting in the service of a foreign government to serve in war against a nation with

whom the United States is at peace; taking part in or facilitating a military or naval expedition against a friendly nation;

strengthening the armed vessel of a foreign nation which is at war with a nation with whom the United States is at

peace; arming a vessel to be used against a friendly nation; authorizing the taking out or attempting to take out of a U.S.

port a detained vessel of a belligerent nation; delivering an armed vessel to a belligerent nation in a conflict in which

the United States is neutral; or authorizing the taking out or attempting to take out of a U.S. port a vessel the departure

of which has been prohibited in aid of neutrality.

111

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

It also covers murder or attempted murder of any person assisting an officer or employee of the

United States in the performance of those duties or on account of that assistance.112

Statutes of limitations, which preclude prosecutions after a specific amount of time has lapsed

(typically five years), may also be affected during wartime. When the United States “is at war” or

Congress has authorized the use of military force within the meaning of the War Powers

Resolution, the Wartime Suspension of Limitations Act (“Suspension Act”), codified at 18 U.S.C.

Section 3287, extends the statute of limitations for the prosecution of certain crimes against the

United States for five years beyond the termination of hostilities. Originally enacted during World

War II, the Suspension Act previously extended the statute of limitations in relevant cases until

three years after the end of hostilities only “when the United States is at war.” One court had

construed this language to refer only to a war declared by Congress, and held that the 1990-91

Persian Gulf conflict, although authorized by Congress, did not qualify.113 Apparently also

construing the phrase “is at war” to mean pursuant to a declaration of war,114 Congress amended

the provision in 2008115 to trigger its application also upon the enactment of an authorization to

112

Some of these statutes are among a number of federal statutes which implicitly or explicitly have extraterritorial

application. This raises a question as to whether or to what extent the existence of a state of open hostilities or a

declaration of war would affect the availability of extraterritorial application of such provisions. An exploration of this

issue is beyond the scope of this report. For a general discussion of extraterritorial application of federal criminal law,

including appendices addressing federal criminal laws which enjoy express extraterritorial application and federal

crimes subject to federal prosecution when committed overseas, see, CRS Report 94-166, Extraterritorial Application

of American Criminal Law, by (name redacted).

113

United States v. Shelton, 816 F. Supp. 1132, 1135 (W.D. Tex. 1993). A later case held that the authorizations to use

force in connection with Iraq and Afghanistan sufficed to toll the limitations period, United States v. Prosperi, 573 F.

Supp. 2d 436, 442 (D. Mass. 2008), applying a four-part test to determine whether the United States was “at war”

within the meaning of the statute:

1) the extent of the authorization given by Congress by the President to act; 2) whether the conflict

is deemed a “war” under accepted definitions of the term and the rules of international law; 3) the

size and scope of the conflict (including the cost of the related procurement effort); and 4) the

diversion of resources that might have been expended on investigating frauds against the

government.

Id. at 449.

The Prosperi court determined that the war in Iraq ended on May 1, 2003, when President Bush declared that “major

combat operations” had ended there. Prosperi, 573 F. Supp. 2d at 455.

114

U.S. Congress, Senate Committee on the Judiciary, Wartime Enforcement of Fraud Act of 2008, Report to

Accompany S. 2892, 110th Cong., 2nd sess., July 25, 2008, S.Rept. 110-431. The Report explains that:

Technically, Section 3287 only applies to declared wars, not circumstances where Congress has

authorized the use of military force, as in the recent wars in Iraq and Afghanistan. The amendment

to Section 3287 specifically tracks the text of the Congressional authorizations for the use of the

Armed Forces in Iraq and Afghanistan and refers only to those authorizations described in the War

Powers Resolution (50 U.S.C. 1544(b)). As a result, only significant military actions requiring

Congressional action would trigger this suspension of the statute of limitations. This amendment is

not intended to apply to peacekeeping missions under the auspices of the United Nations or military

actions not specifically authorized by Congress pursuant to the War Powers resolution. This

language is intended to apply the suspension of statute of limitations to the wars in Iraq and

Afghanistan.

Id. at 5.

The language of S. 2892 (110th Cong.) was later incorporated into the Consolidated Security, Disaster Assistance, and

Continuing Appropriations Act, 2009, H.R. 2638, and Duncan Hunter National Defense Authorization Act for Fiscal

Year 2009, S. 3001. Both were enacted, but the later-enacted version was subsequently repealed retroactively, P.L.

111-84, Div. A, Title VIII, §1073(c)(7) (repealing §855 of P.L. 110-417).

115

P.L. 110-329, title VIII, §8117. The amended provision also requires notice to Congress if hostilities are ended

pursuant to presidential proclamation.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

use military force “as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544

(b)).”116 (The military counterpart to the provision, found in 10 U.S.C. §843(f), was not amended.

It continues to suspend the applicable statute of limitations for three years beyond the end of

hostilities, and applies “when the United States is at war.”)

There are other criminal law provisions applicable to the military in the Uniform Code of Military

Justice, 10 U.S.C.A. Sections801 et seq. Some of these provisions apply specifically in times of

war. These will be treated separately in the subsequent section of this report on “Military

Personnel.”117

Foreign Intelligence Surveillance

The Foreign Intelligence Surveillance Act (FISA), as amended, in pertinent part, authorizes

electronic surveillance, physical searches, and the use of pen registers and trap and trace devices

to gather foreign intelligence information and sets out the procedures and circumstances under

which each of these investigative tools may be used.118 In the event of a declaration of war, FISA

authorizes the use of each of these investigative tools to gather foreign intelligence for up to 15

days without a court order. For electronic surveillance subsequent to a declaration of war, FISA

provides, at 50 U.S.C.A. Section 1811, that:

Notwithstanding any other law, the President, through the Attorney General, may authorize

electronic surveillance without a court order under this subchapter to acquire foreign

intelligence information for a period not to exceed fifteen calendar days following a

declaration of war by the Congress.

In the context of physical searches, 50 U.S.C.A. Section 1829 includes language similar to that in

Section 1811:

Notwithstanding any other provision of law, the President, through the Attorney General,

may authorize physical searches without a court order under this subchapter to acquire

foreign intelligence information for a period not to exceed 15 calendar days following a

declaration of war by the Congress.

116

In a case subsequent to the enactment of the amendment but involving offenses that occurred earlier, the court

dismissed some counts of a complaint as time-barred based on the absence of a formal declaration of war. United States

v. Western Titanium, Inc., 2010 WL 2650224 (S.D. Cal. 2010). The court explained that its initial inclination was to

adopt the Prosperi approach to determine whether the United States was at war when the offenses were committed, it

ultimately concluded that the “extensive post-hoc factual determinations required by Prosperi render its application too

ambiguous and uncertain in the context of a criminal statute of limitation.” Id. at *3. The court further remarked that:

Whatever Congress intended by the phrase “at war” in the WSLA, it cannot have meant a definition

not capable of determination until a court conducts a subjective analysis years after the commission

of an offense.

Id.

117

Moreover, by operation of the Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C.A. §§3261-3267,

contractors and other civilians who accompany American armed forces overseas are subject to federal prosecution for

the commission of various common law crimes such as murder (18 U.S.C.A. §1111), rape (18 U.S.C.A. §2241), assault

(18 U.S.C.A. §113), kidnaping (18 U.S.C.A. §1201), and the like.

118

Electronic surveillance under FISA is addressed at 50 U.S.C.A. §§1801 et seq.; foreign intelligence physical

searches are addressed at 50 U.S.C. §§1821 et seq.; and pen registers and trap and trace devices under FISA are dealt

with at 50 U.S.C. §§1841 et seq.

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

For pen registers and trap and trace devices, 50 U.S.C.A. Section 1844 provides that:

Notwithstanding any other provision of law, the President, through the Attorney General,

may authorize the use of a pen register or trap and trace device without a court order under

this subchapter to acquire foreign intelligence information for a period not to exceed 15

calendar days following a declaration of war by Congress.

None of these provisions appears to be triggered by an authorization for the use of force or the

existence of a state of war under any authority other than a congressional declaration of war.119

In addition to the foregoing provisions, FISA has been amended to authorize the use of these

investigative tools without a court order for foreign intelligence purposes in “emergency”

circumstances as determined by the Attorney General. To do so the Attorney General must (1)

find that an emergency exists, (2) determine that the factual basis for the issuance of an order to

approve such surveillance, physical search, or pen register or trap and trace device also exists, (3)

advise a judge of the U.S. Foreign Intelligence Surveillance Court (FISC) that a decision to use

the emergency authority has been made, and (4) apply to the FISC judge so notified for a court

order as soon as practicable (but no later than within 72 hours in the case of an electronic

surveillance or physical search or 48 hours in the case of a pen register or trap and trace

device).120 These provisions do not expressly address the question of whether such emergency

procedures might be triggered either by an authorization for the use of force or by a congressional

declaration of war. However, depending upon the circumstances involved, these emergency

powers, or other provisions within FISA,121 might be utilized.

Assassination

As noted in the foregoing discussion of criminal law, 18 U.S.C.A. Section 1116 makes it a crime

to kill or attempt to kill a “foreign official, official guest, or internationally protected person.” The

term “foreign official” includes, among others, a Chief of State or the political equivalent thereof

while he or she is in the United States. “Internationally protected person” covers, among others, a

Chief of State or the political equivalent thereof, whenever such person is in a country other than

his or her own. This criminal provision does not apply to the killing or attempted killing of an

119

The Bush Administration took the position that the authorization to use force in response to the 9/11 attacks, P.L.

107-40, implicitly authorized wiretaps without judicial order without time limits as a fundamental incident of waging

war, notwithstanding the existence of these provisions. See DOJ White Paper, supra footnote 43; CRS Report R40888,

Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, by

(name redacted) and (name redacted).

120

For pertinent criteria and procedures applicable to such emergency situations, see 50 U.S.C. §§1805(e) (electronic

surveillance), 1824(e) (physical search), or 1843 (pen register or trap and trace device. This authority is applicable only

to gathering foreign intelligence information not concerning a United States person or information to protect against

international terrorism or clandestine intelligence activities, provided that such an investigation of a U.S. person may

not be conducted solely on the basis of First Amendment protected activities).

121

See, e.g., 50 U.S.C. §1802 (electronic surveillance directed solely at acquisition of communications, not involving

U.S. persons, of a foreign government or governments or components thereof, factions of a foreign nation or nations

not substantially composed of U.S. persons, or entities openly acknowledged to be directed and controlled by a foreign

government or governments, without a court order for periods up to one year in specific circumstances; this provision

also covers electronic surveillance directed solely at acquisition of technical intelligence, other than spoken

communications of individuals, from property or premises of such foreign governments, factions, or entities). For a

more detailed discussion of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview

of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence

Surveillance Court of Review Decisions, by (name redacted).

Congressional Research Service

Declarations of War and Authorizations for the Use of Military Force

internationally protected person in his or her own country. The United States courts may exercise

jurisdiction over the killing or attempted killing of internationally protected persons in violation

of 18 U.S.C. Section 1116 committed outside the United States where the victim is a

representative, officer, employee or agent of the United States; where a perpetrator is a U.S.

national; or where an offender is later found in the United States.

In addition, Part 2.11 of Executive Order 12333 forbids any person employed by or acting on

behalf of the United States Government from engaging in, or conspiring to engage in,

assassination. Part 2.12 of that executive order further prohibits any agency of the Intelligence

Community from participating in or requesting any person to undertake activities forbidden by

the order. The executive order does not define “assassination,” nor does either the criminal statute

or the executive order specifically address the applicability of the prohibition to an armed conflict

in which the U.S. is engaged. However, in times of war, the targeting of an enemy’s command

and control structures may be regarded as strategically important, is lawful under international

law, likely is not intended to be barred by E.O. 12333, and does not appear to be covered by 18

U.S.C. Section 1116. Hence, a declaration of war, because it creates a state of war regardless of

whether actual hostilities have occurred, arguably creates a situation where such an act is not

prohibited by domestic law. Less clear is the effect of an authorization for the use of force. Once a

state of war comes into existence following such an authorization, then the legal situation appears

to be the same as with a declaration. But prior to that development, the legal effect of an

authorization for the use of force on the assassination ban appears somewhat ambiguous.

An executive order may be revoked by the President through another executive order. To the

extent that an executive order is issued pursuant to authority granted by statute, Congress may

repeal it or terminate the underlying statutory authority upon which it rests. The assassination ban

is part of an executive order issued by President Reagan in 1981 under both statutory and

constitutional authority. The order does not indicate the nature of the authority underlying the

assassination ban in particular. If one were to argue that a statutory basis for the ban exists, then

one might contend that an authorization for a use of force would, by implication, modify the ban

or repeal it with respect to the context in which the use of force was authorized.

The Defense Production Act of 1950

Conversely, declarations of war or authorizations

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.