The War Powers Resolution: After Thirty-Four Years

Congressional research reportMar 10, 2008

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Order Code RL32267

The War Powers Resolution:

After Thirty-Four Years

Updated March 10, 2008

Richard F. Grimmett

Specialist in International Security

Foreign Affairs, Defense, and Trade Division

The War Powers Resolution: After Thirty-Four Years

Summary

This report discusses and assesses the War Powers Resolution, its application

since enactment in 1973, providing detailed background on a variety of cases where

it was utilized, or issues of its applicability were raised. It will be revised biannually.

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

Forces into potential hostilities, sometimes without a specific authorization from

Congress. Thus the War Powers Resolution and its purposes continues to be a

potential subject of controversy. On June 7, 1995 the House defeated, by a vote of

217-201, an amendment to repeal the central features of the War Powers Resolution

that have been deemed unconstitutional by every President since the law’s enactment

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

Yugoslavia without congressional authorization, Representative Tom Campbell used

expedited procedures under the Resolution to force a debate and votes on U.S.

military action in Yugoslavia, and later sought, unsuccessfully, through a federal

court suit to enforce Presidential compliance with the terms of the War Powers

Resolution.

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

Nixon on November 7, 1973, to provide procedures for Congress and the President

to participate in decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1)

requires the President to report to Congress any introduction of U.S. forces into

hostilities or imminent hostilities. When such a report is submitted, or is required to

be submitted, section 5(b) requires that the use of forces must be terminated within

60 to 90 days unless Congress authorizes such use or extends the time period.

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

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

hostilities.

From 1975 through 2007, Presidents have submitted 123 reports as the result of

the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited section

4(a)(1) which triggers the time limit, and in this case the military action was

completed and U.S. armed forces had disengaged from the area of conflict when the

report was made. The reports submitted by the President since enactment of the War

Powers Resolution cover a range of military activities from embassy evacuations to

full scale combat military operations, such as the Persian Gulf conflict, and the 2003

war with Iraq, the intervention in Kosovo and the anti-terrorism actions in

Afghanistan. In some instances U.S. Armed Forces have been used in hostile

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

one occasion, Congress exercised its authority to determine that the requirements of

section 4(a)(1) became operative on August 29, 1983, through passage of the

Multinational Force in Lebanon Resolution (P.L. 98-119). In 1991 and 2002,

Congress authorized, by law, the use of military force against Iraq. In several

instances neither the President, Congress, nor the courts have been willing to trigger

the War Powers Resolution mechanism.

Contents

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

Provisions of the War Powers Resolution (P.L. 93-148) . . . . . . . . . . . . . . . . . . . . 2

Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Purpose and Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

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

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

Constitutional Questions Raised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

War Powers of President and Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Legislative Veto . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Automatic Withdrawal Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Major Cases and Issues Prior to the Persian Gulf War . . . . . . . . . . . . . . . . . . . . 11

Vietnam Evacuations and Mayaguez: What Is Consultation? . . . . . . . . . . 11

Iran Hostage Rescue Attempt: Is Consultation Always Necessary

and Possible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

El Salvador: When Are Military Advisers in Imminent Hostilities? . . . . . . 12

Honduras: When Are Military Exercises More than Training? . . . . . . . . . 14

Lebanon: How Can Congress Invoke the War Powers Resolution? . . . . . . 15

Grenada: Do the Expedited Procedures Work? . . . . . . . . . . . . . . . . . . . . . 17

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

to International Terrorism? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Persian Gulf, 1987: When Are Hostilities Imminent? . . . . . . . . . . . . . . . . . 18

Invasion of Panama: Why Was the War Powers Issue Not Raised? . . . . . . 21

Major Cases and Issues in the Post-Cold War World: United Nations Actions . 22

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

the United Nations and a Real War? . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Iraq-Post Gulf War: How Long Does an Authorization Last? . . . . . . . . . . 28

Somalia: When Does Humanitarian Assistance Require

Congressional Authorization? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Former Yugoslavia/Bosnia/Kosovo: What If No Consensus Exists? . . . . . 32

Bosnia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Haiti: Can the President Order Enforcement of a U.N. Embargo? . . . . . . . 42

Terrorist Attacks against the United States (World Trade Center and

the Pentagon) 2001: How Does the War Powers Resolution Apply? . 45

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

War Powers Resolution? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Proposed Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Return to Senate Version: Enumerating Exceptions for Emergency Use . . 52

Shorten or Eliminate Time Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Replace Automatic Withdrawal Requirement . . . . . . . . . . . . . . . . . . . . . . . 52

Cutoff of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Elimination of Action by Concurrent Resolution . . . . . . . . . . . . . . . . . . . . 53

Expedited Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Consultation Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Change of Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

United Nations Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Appendix A. Instances Reported under the War Powers Resolution . . . . . . . . . 56

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

War Powers Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Appendix C. Text of the War Powers Resolution . . . . . . . . . . . . . . . . . . . . . . . 81

The War Powers Resolution:

After Thirty-Four Years

Introduction

Under the Constitution, the war powers are divided between Congress and the

President. Among other relevant grants, Congress has the power to declare war and

raise and support the armed forces (Article I, section 8), while the President is

Commander in Chief (Article II, section 2). It is generally agreed that the

Commander in Chief role gives the President power to utilize the armed forces to

repel attacks against the United States, but there has long been controversy over

whether he is constitutionally authorized to send forces into hostile situations abroad

without a declaration of war or other congressional authorization.

Congressional concern about Presidential use of armed forces without

congressional authorization intensified after the Korean conflict. During the Vietnam

war, Congress searched for a way to assert authority to decide when the United States

should become involved in a war or the armed forces be utilized in circumstances

that might lead to hostilities. On November 7, 1973, it passed the War Powers

Resolution (P.L. 93-148) over the veto of President Nixon. The main purpose of the

Resolution was to establish procedures for both branches to share in decisions that

might get the United States involved in war. The drafters sought to circumscribe the

President’s authority to use armed forces abroad in hostilities or potential hostilities

without a declaration of war or other congressional authorization, yet provide enough

flexibility to permit him to respond to attack or other emergencies.

The record of the War Powers Resolution since its enactment has been mixed,

and after 30 years it remains controversial. Some Members of Congress believe the

Resolution has on some occasions served as a restraint on the use of armed forces by

Presidents, provided a mode of communication, and given Congress a vehicle for

asserting its war powers. Others have sought to amend the Resolution because they

believe it has failed to assure a congressional voice in committing U.S. troops to

potential conflicts abroad. Others in Congress, along with executive branch officials,

contend that the President needs more flexibility in the conduct of foreign policy and

that the time limitation in the War Powers Resolution is unconstitutional and

impractical. Some have argued for its repeal.

This report examines the provisions of the War Powers Resolution, actual

experience in its use from its enactment in 1973 through December 2007, and

proposed amendments to it. Appendix A lists instances which Presidents have

reported to Congress under the War Powers Resolution, and Appendix B lists

representative instances of the use of U.S. armed forces that were not reported.

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Provisions of the War Powers Resolution

(P.L. 93-148)

Title

Section 1 establishes the title, “The War Powers Resolution.” The law is

frequently referred to as the “War Powers Act,” the title of the measure passed by the

Senate. Although the latter is not technically correct, it does serve to emphasize that

the War Powers Resolution, embodied in a joint resolution which complies with

constitutional requirements for lawmaking, is a law.

Purpose and Policy

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

the primary purpose to “insure that the collective judgment of both the Congress and

the President will apply to the introduction of United States Armed Forces into

hostilities, or into situations where imminent involvement in hostilities is clearly

indicated by the circumstances, and to the continued use of such forces in hostilities

or in such situations.”

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

the basis for legislation on the war powers. It provides that “Under Article I, section

8, of the Constitution it is specifically provided that Congress shall have the power

to make all laws necessary and proper for carrying into execution, not only its own

powers but also all other powers vested by the Constitution in the Government of the

United States....”

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

Chief to introduce U.S. armed forces into situations of hostilities or imminent

hostilities “are exercised only pursuant to —

(1) a declaration of war,

(2) specific statutory authorization, or

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

territories or possessions, or its armed forces.”

Consultation Requirement

Section 3 of the War Powers Resolution requires the President “in every

possible instance” to consult with Congress before introducing U.S. Armed Forces

into situations of hostilities and imminent hostilities, and to continue consultations

as long as the armed forces remain in such situations. The House report elaborated:

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

Rejected was the notion that consultation should be synonymous with merely

being informed. Rather, consultation in this provision means that a decision is

pending on a problem and that Members of Congress are being asked by the

President for their advice and opinions and, in appropriate circumstances, their

approval of action contemplated. Furthermore, for consultation to be

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meaningful, the President himself must participate and all information relevant

to the situation must be made available.1

The House version specifically called for consultation between the President and

the leadership and appropriate committees. This was changed to less specific

wording in conference, however, in order to provide more flexibility.

Reporting Requirements

Section 4 requires the President to report to Congress whenever he introduces

U.S. armed forces abroad in certain situations. Of key importance is section 4(a)(1)

because it triggers the time limit in section 5(b). Section 4(a)(1) requires reporting

within 48 hours, in the absence of a declaration of war or congressional

authorization, the introduction of U.S. armed forces “into hostilities or into situations

where imminent involvement in hostilities is clearly indicated by the circumstances.”

Some indication of the meaning of hostilities and imminent hostilities is given

in the House report on its War Powers bill:

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

subcommittee drafting process because it was considered to be somewhat

broader in scope. In addition to a situation in which fighting actually has begun,

hostilities also encompasses a state of confrontation in which no shots have been

fired but where there is a clear and present danger of armed conflict. “Imminent

hostilities” denotes a situation in which there is a clear potential either for such

a state of confrontation or for actual armed conflict.2

Section 4(a)(2) requires the reporting of the introduction of troops “into the

territory, airspace or waters of a foreign nation, while equipped for combat, except

for deployments which relate solely to supply, replacement, repair, or training of such

forces.” According to the House report this was to cover

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

but some risk, however small, of the forces being involved in hostilities. A

report would be required any time combat military forces were sent to another

nation to alter or preserve the existing political status quo or to make the U.S.

presence felt. Thus, for example, the dispatch of Marines to Thailand in 1962

and the quarantine of Cuba in the same year would have required Presidential

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

aid measures, normal training exercises, and other noncombat military activities.3

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

which substantially enlarge United States Armed Forces equipped for combat already

located in a foreign nation.” The House report elaborated:

U.S. Congress. H.Rept. 93-287, p. 6.

U.S. Congress. H.Rept. 93-287, p. 7.

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

arrive at a common-sense understanding of the numbers involved. A 100%

increase in numbers of Marine guards at an embassy — say from 5 to 10 —

clearly would not be an occasion for a report. A thousand additional men sent

to Europe under present circumstances does not significantly enlarge the total

U.S. troop strength of about 300,000 already there. However, the dispatch of

1,000 men to Guantanamo Bay, Cuba, which now has a complement of 4,000

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

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

he raised the number of U.S. military advisers in Vietnam from 700 to 16,000.4

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

of the House and the President pro tempore of the Senate, are to set forth:

(A) the circumstances necessitating the introduction of United States

Armed Forces;

(B) the constitutional and legislative authority under which such

introduction took place; and

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

Congress may request to fulfill its responsibilities relating to committing the nation

to war.

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

least every six months, whenever U.S. forces are introduced into hostilities or any

other situation in section 4(a).

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

that the Congress by right and as a matter of law will be provided with all the

information it requires to carry out its constitutional responsibilities with respect to

committing the Nation to war and to the use of United States Armed Forces abroad.”5

Congressional Action

Section 5(a) deals with congressional procedures for receipt of a report under

section 4(a)(1). It provides that if a report is transmitted during a congressional

adjournment, the Speaker of the House and the President pro tempore of the Senate,

when they deem it advisable or if petitioned by at least 30% of the Members of their

respective Houses, shall jointly request the President to convene Congress in order

to consider the report and take appropriate action.

Section 5(b) was intended to provide teeth for the War Powers Resolution.

After a report “is submitted or is required to be submitted pursuant to section 4(a)(1),

U.S. Congress. H.Rept. 93-287, p. 8.

U.S. Congress. H.Rept. 93-547, p. 8.

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whichever is earlier”, section 5(b) requires the President to terminate the use of U.S.

Armed Forces after 60 days unless Congress (1) has declared war or authorized the

action; (2) has extended the period by law; or (3) is physically unable to meet as a

result of an armed attack on the United States. The 60 days can be extended for 30

days by the President if he certifies that “unavoidable military necessity respecting

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

of bringing about their removal.

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

so directs by concurrent resolution; the effectiveness of this subsection is uncertain

because of the 1983 Supreme Court decision on the legislative veto. It is discussed

in Part II of this report.

Priority Procedures

Section 6 establishes expedited procedures for congressional consideration of

a joint resolution or bill introduced to authorize the use of armed forces under section

5 (b). They provide for:

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

Foreign Relations Committee, the committee to report one measure not later

than 24 calendar days before the expiration of the 60 day period, unless the

relevant House determines otherwise by a vote;

(b) The reported measure to become the pending business of the relevant House

and be voted on within three calendar days, unless that House determines

otherwise by vote; in the Senate the debate is to be equally divided between

proponents and opponents;

the other House and reported out not later than 14 calendar days before the

expiration of the 60 day period, the reported bill to become the pending business

of that House and be voted on within 3 calendar days unless determined

otherwise by a vote;

(d) Conferees to file a report not later than four calendar days before the

expiration of the 60 day period. If they cannot agree within 48 hours, the

conferees are to report back in disagreement, and such report is to be acted on

by both Houses not later than the expiration of the 60 day period.

Section 7 establishes similar priority procedures for a concurrent resolution to

withdraw forces under section 5(c). For a recent use of these procedures see the

section on the legislative veto, below.

Interpretive Provisions

Section 8 sets forth certain interpretations relating to the Resolution. Section

8(a) states that authority to introduce armed forces is not to be inferred from any

provision of law or treaty unless it specifically authorizes the introduction of armed

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forces into hostilities or potential hostilities and states that it is “intended to

constitute specific statutory authorization within the meaning of this joint resolution.”

This language was derived from a Senate measure and was intended to prevent a

security treaty or military appropriations act from being used to authorize the

introduction of troops. It was also aimed against using a broad resolution like the

Tonkin Gulf Resolution 6 to justify hostilities abroad. This resolution had stated that

the United States was prepared to take all necessary steps, including use of armed

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

congressional authorization for the Vietnam war.

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

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

members of the armed forces of one or more foreign countries in the

headquarters operations of high-level military commands which were established

prior to the date of enactment of this joint resolution and pursuant to the United

Nations Charter or any treaty ratified by the United States prior to such date.

This section was added by the Senate to make clear that the resolution did not

prevent U.S. forces from participating in certain joint military exercises with allied

or friendly organizations or countries. The conference report stated that the

“high-level” military commands meant the North Atlantic Treaty Organization,

(NATO), the North American Air Defense Command (NORAD) and the United

Nations command in Korea.

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

of armed forces to accompany regular or irregular military forces of other countries

when engaged, or potentially engaged, in hostilities. The conference report on the

War Powers Resolution explained that this was language modified from a Senate

provision requiring specific statutory authorization for assigning members of the

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

Committee on its bill said:

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

activities and to prevent a repetition of many of the most controversial and

regrettable actions in Indochina. The ever deepening ground combat

involvement of the United States in South Vietnam began with the assignment

of U.S. “advisers” to accompany South Vietnamese units on combat patrols; and

in Laos, secretly and without congressional authorization, U.S. “advisers” were

deeply engaged in the war in northern Laos.7

Section 8(d) states that nothing in the Resolution is intended to alter the

constitutional authority of either the Congress or the President. It also specifies that

nothing is to be construed as granting any authority to introduce troops that would not

exist in the absence of the Resolution. The House report said that this provision was

to help insure the constitutionality of the Resolution by making it clear that nothing

in it could be interpreted as changing the powers delegated by the Constitution.

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

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

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Section 9 is a separability clause, stating that if any provision or its application

is found invalid, the remainder of the Resolution is not to be affected.

Constitutional Questions Raised

From its inception, the War Powers Resolution was controversial because it

operated on the national war powers, powers divided by the Constitution in no

definitive fashion between the President and Congress. Congress adopted the

resolution in response to the perception that Presidents had assumed more authority

to send forces into hostilities than the framers of the Constitution had intended for

the Commander-in-Chief. President Nixon in his veto message challenged the

constitutionality of the essence of the War Powers Resolution, and particularly two

provisions.8 He argued that the legislative veto provision, permitting Congress to

direct the withdrawal of troops by concurrent resolution, was unconstitutional. He

also argued that the provision requiring withdrawal of troops after 60-90 days unless

Congress passed legislation authorizing such use was unconstitutional because it

checked Presidential powers without affirmative congressional action. Every

President since the enactment of the War Powers Resolution has taken the position

that it is an unconstitutional infringement on the President’s authority as

Commander-in-Chief.

War Powers of President and Congress

The heart of the challenge to the constitutionality of the War Powers Resolution

rests on differing interpretations by the two branches of the respective war powers

of the President and Congress. These differing interpretations, especially the

assertions of Presidential authority to send forces into hostile situations without a

declaration of war or other authorization by Congress, were the reason for the

enactment of the Resolution.

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

the power to declare war, meaning the ultimate decision whether or not to enter a

war. Most Members of Congress agreed that the President as Commander in Chief

had power to lead the U.S. forces once the decision to wage war had been made, to

defend the nation against an attack, and perhaps in some instances to take other

action such as rescuing American citizens. But, in this view, he did not have the

power to commit armed forces to war. By the early 1970s, the congressional majority

view was that the constitutional balance of war powers had swung too far toward the

President and needed to be corrected. Opponents argued that Congress always held

the power to forbid or terminate U.S. military action by statute or refusal of

appropriations, and that without the clear will to act the War Powers Resolution

would be ineffective.

United States. President (Nixon). Message vetoing House Joint Resolution 542, A Joint

Resolution Concerning the War Powers of Congress and the President. October 24, 1973.

H.Doc. 93-171.

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In his veto message, President Nixon said the Resolution would impose

restrictions upon the authority of the President which would be dangerous to the

safety of the Nation and “attempt to take away, by a mere legislative act, authorities

which the President has properly exercised under the Constitution for almost 200

years.”

The War Powers Resolution in section 2(c) recognized the constitutional powers

of the President as Commander-in-Chief to introduce forces into hostilities or

imminent hostilities as “exercised only pursuant to (1) a declaration of war, (2)

specific statutory authorization, or (3) a national emergency created by attack upon

the United States, its territories or possessions, or its armed forces.” The executive

branch has contended that the President has much broader authority to use forces,

including for such purposes as to rescue American citizens abroad, rescue foreign

nationals where such action facilitates the rescue of U.S. citizens, protect U.S.

Embassies and legations, suppress civil insurrection, implement the terms of an

armistice or cease-fire involving the United States, and carry out the terms of security

commitments contained in treaties.9

Legislative Veto

On June 23, 1983, the Supreme Court in INS v. Chadha, ruled unconstitutional

the legislative veto provision in section 244(c)(2) of the Immigration and Nationality

Act.10 Although the case involved the use of a one-House legislative veto, the

decision cast doubt on the validity of any legislative veto device that was not

presented to the President for signature. The Court held that to accomplish what the

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

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

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

Supreme Court affirmed a lower court’s decision striking down a provision in

another law11 that permitted Congress to disapprove by concurrent (two-House)

resolution.12

Since section 5(c) requires forces to be removed by the President if Congress so

directs by a concurrent resolution, it is constitutionally suspect under the reasoning

applied by the Court.13 A concurrent resolution is adopted by both chambers, but it

does not require presentment to the President for signature or veto. Some legal

analysts contend, nevertheless, that the War Powers Resolution is in a unique

U.S. Congress. House. Committee on International Relations. War Powers: A Test of

Compliance relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation

of Saigon, and the Mayaguez Incident. Hearings, May 7 and June 4, 1975. Washington,

U.S. Govt. Printing Off., 1975. p. 69.

462 U.S. 919 (1983).

Federal Trade Commission Improvements Act of 1980.

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

Celada, Raymond. J. Effect of the Legislative Veto Decision on the Two-House

Disapproval Mechanism to Terminate U.S. Involvement in Hostilities Pursuant to Unilateral

Presidential Action. CRS Report, August 24, 1983.

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category which differs from statutes containing a legislative veto over delegated

authorities.14 Perhaps more important, some observers contend, if a majority of both

Houses ever voted to withdraw U.S. forces, the President would be unlikely to

continue the action for long, and Congress could withhold appropriations to finance

further action. Because the War Powers Resolution contains a separability clause in

section 9, most analysts take the view that the remainder of the joint resolution would

not be affected even if section 5(c) were found unconstitutional.15

Congress has taken action to fill the gap left by the possible invalidity of the

concurrent resolution mechanism for the withdrawal of troops. On October 20, 1983,

the Senate voted to amend the War Powers Resolution by substituting a joint

resolution, which requires presentment to the President, for the concurrent resolution

in section 5(c), and providing that it would be handled under the expedited

procedures in section 7. The House and Senate conferees agreed not to amend the

War Powers Resolution itself, but to adopt a free standing measure relating to the

withdrawal of troops. The measure, which became law, provided that any joint

resolution or bill to require the removal of U.S. armed forces engaged in hostilities

outside the United States without a declaration of war or specific statutory

authorization would be considered in accordance with the expedited procedures of

section 601(b) of the International Security and Arms Export Control Act of 1976,16

except that it would be amendable and debate on a veto limited to 20 hours.17 The

priority procedures embraced by this provision applied in the Senate only. Handling

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

House Members attempted to use section 5(c) to obtain a withdrawal of forces

from Somalia. On October 22, 1993, Representative Benjamin Gilman introduced

H.Con.Res. 170, pursuant to section 5(c) of the War Powers Resolution, directing the

President to remove U.S. Armed Forces from Somalia by January 31, 1994. Using

the expedited procedures called for in section 5(c), the Foreign Affairs Committee

amended the date of withdrawal to March 31, 1994, (the date the President had

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

Foreign Affairs Committee reported:18

Gressman, Prof. Eugene. In U.S. Congress. House. Committee on Foreign Affairs. The

U.S. Supreme Court Decision Concerning the Legislative Veto. Hearings, July 19, 20, and

21, 1983. 98th Congress, 1st sess. Washington, U.S. GPO, 1983, p. 155-157. Buchanan, G.

Sidney. In Defense of the War Powers Resolution: Chadha Does Not Apply. Houston Law

Review, Vol. 22, p. 1155; Ely, John Hart. Suppose Congress Wanted a War Powers Act that

Worked. Columbia Law Review, Vol. 88, p. 1379 (see p. 1395-1398).

U.S. Congress. House. Committee on Foreign Affairs. U.S. Supreme Court Decision

Concerning the Legislative Veto, Hearings, p. 52.

P.L. 94-329, signed June 30, 1976.

Senate amendment to S. 1324. Section 1013, State Department Authorization Act for

FY1984, P.L. 98-164, approved November 22, 1983. Codified at 50 U.S.C. , sect.1546a

(1994).

H.Rept. 103-329, November 5, 1993, p. 2. See below for further discussion of the Somalia

case.

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Despite such genuine constitutionality questions, the committee acted in

accordance with the expedited procedures in section 7. The committee action

was premised on a determination that neither individual Members of Congress

nor Committees of Congress should make unilateral judgments about the

constitutionality of provisions of law.

Despite the use of the phrase “directs the President”, the sponsor of the

resolution and Speaker of the House Thomas Foley expressed the view that because

of the Chadha decision, the resolution would be non-binding. The March 31, 1994,

withdrawal date was later enacted as section 8151 of P.L. 103-139, signed November

11, 1993.

Automatic Withdrawal Provision

The automatic withdrawal provision has become perhaps the most controversial

provision of the War Powers Resolution. Section 5(b) requires the President to

withdraw U.S. forces from hostilities within 60-90 days after a report is submitted

or required to be submitted under section 4(a)(1). The triggering of the time limit has

been a major factor in the reluctance of Presidents to report, or Congress to insist

upon a report, under section 4(a)(1).

Drafters of the War Powers Resolution included a time limit to provide some

teeth for Congress, in the event a President assumed a power to act from provisions

of resolutions, treaties, or the Constitution which did not constitute an explicit

authorization. The Senate report called the time limit “the heart and core” of the bill

that “represents, in an historic sense, a restoration of the constitutional balance which

has been distorted by practice in our history and, climatically, in recent decades.”19

The House report emphasized that the Resolution did not grant the President any new

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

Administration officials have objected that the provision would require the

withdrawal of U.S. forces simply because of congressional inaction during an

arbitrary period. Since the resolution recognizes that the President has independent

authority to use armed forces in certain circumstances, they state, “on what basis can

Congress seek to terminate such independent authority by the mere passage of

time?”20 In addition, they argue, the imposition of a deadline interferes with

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

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

action, and increases risk to U.S. forces in the field. The issue has not been dealt

with by the courts.

The Senate bill had a time limit of 30 days. U.S. Congress. Senate. Committee on

Foreign Relations. War Powers. Report to accompany S. 440. S.Rept. 93-220, 93d

Congress, 1st Session. p. 28.

Sofaer, Abraham D. Prepared statement in: U.S. Congress. Senate. Committee on

Foreign Relations. The War Power After 200 Years: Congress and the President at a

Constitutional Impasse. Hearings before the Special Subcommittee on War Powers. July

13-September 29, 1988. S.Hrng. 100-1012. p. 1059.

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Major Cases and Issues Prior

to the Persian Gulf War

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

During the 1970s the issues revolved largely around the adequacy of consultation.

The 1980s raised more serious issues of Presidential compliance and congressional

willingness to use the War Powers Resolution to restrain Presidential action. With

regard to Lebanon in 1983, Congress itself invoked the War Powers Resolution, but

in the 1987-1988 Persian Gulf tanker war Congress chose not to do so. Following

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

War Powers Resolution from its enactment in 1973 to August 1990.21

Vietnam Evacuations and Mayaguez: What Is Consultation?

As the Vietnam war ended, on three occasions, in April 1975, President Ford

used U.S. forces to help evacuate American citizens and foreign nationals. In

addition, in May 1975 President Ford ordered the retaking of a U.S. merchant vessel,

the SS Mayaguez which had been seized by Cambodian naval patrol vessels. All four

actions were reported to Congress citing the War Powers Resolution. The report on

the Mayaguez recapture was the only War Powers report to date to specifically cite

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

over by the time the report was filed.

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

opinion between the two branches on the meaning of consultation. The Ford

Administration held that it had met the consultation requirement because the

President had directed that congressional leaders be notified prior to the actual

commencement of the introduction of armed forces. The prevailing congressional

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

take it into account, prior to making a decision to commit armed forces.22

Iran Hostage Rescue Attempt:

Necessary and Possible?

Is Consultation Always

After an unsuccessful attempt on April 24, 1980, to rescue American hostages

being held in Iran, President Carter submitted a report to Congress to meet the

requirements of the War Powers Resolution, but he did not consult in advance. The

Administration took the position that consultation was not required because the

Appendix A lists in chronological order all reports to Congress related to the War Powers

Resolution from the first in 1975 through 2003. Appendix B lists representative instances

of the deployment to or use of armed forces in potentially hostile situations which were not

reported under the Resolution. Appendix C gives the complete text of the War Powers

Resolution.

U.S. Congress. House. Committee on International Relations. War Powers: A Test of

Compliance Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation

of Saigon, and the Mayaguez Incident. Hearings, May 7 and June 4, 1975. Washington,

U.S. Govt. Print. Off., 1975. P. 3.

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mission was a rescue attempt, not an act of force or aggression against Iran. In

addition, the Administration contended that consultation was not possible or required

because the mission depended upon total surprise.

Some Members of Congress complained about the lack of consultation,

especially because legislative-executive meetings had been going on since the Iranian

crisis had begun the previous year. Just before the rescue attempt, the Senate Foreign

Relations Committee had sent a letter to Secretary of State Cyrus Vance requesting

formal consultations under the War Powers Resolution. Moreover, shortly before the

rescue attempt, the President outlined plans for a rescue attempt to Senate Majority

Leader Robert Byrd but did not say it had begun. Senate Foreign Relations

Committee Chairman Frank Church stressed as guidelines for the future: (1)

consultation required giving Congress an opportunity to participate in the decision

making process, not just informing Congress that an operation was underway; and

(2) the judgment could not be made unilaterally but should be made by the President

and Congress.23

El Salvador: When Are Military Advisers in Imminent

Hostilities?

One of the first cases to generate substantial controversy because it was never

reported under the War Powers Resolution was the dispatch of U.S. military advisers

to El Salvador. At the end of February 1981, the Department of State announced the

dispatch of 20 additional military advisers to El Salvador to aid its government

against guerilla warfare. There were already 19 military advisers in El Salvador sent

by the Carter Administration. The Reagan Administration said the insurgents were

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

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

training.

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

State Department memorandum said a report was not required because the U.S.

personnel were not being introduced into hostilities or situations of imminent

hostilities. The memorandum asserted that if a change in circumstances occurred that

raised the prospect of imminent hostilities, the Resolution would be complied with.

A justification for not reporting under section 4(a)(2) was that the military personnel

being introduced were not equipped for combat.24 They would, it was maintained,

carry only personal sidearms which they were authorized to use only in their own

defense or the defense of other Americans.

The State Department held that section 8(c) of the War Powers Resolution was

not intended to require a report when U.S. military personnel might be involved in

training foreign military personnel, if there were no imminent involvement of U.S.

personnel in hostilities. In the case of El Salvador, the memorandum said, U.S.

U.S. Congress. Senate. Committee on Foreign Relations. The situation in Iran. Hearing,

96th Congress, 2nd session. May 8, 1980. Washington, U.S. Govt. Print. Off., 1980. P. iii.

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

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military personnel “will not act as combat advisors, and will not accompany

Salvadoran forces in combat, on operational patrols, or in any other situation where

combat is likely.”

On May 1, 1981, eleven Members of Congress challenged the President’s action

by filing suit on grounds that he had violated the Constitution and the War Powers

Resolution by sending the advisers to El Salvador. Eventually there were 29

co-plaintiffs, but by June 18, 1981, an equal number of Members (13 Senators and

16 Representatives) filed a motion to intervene in the suit, contending that a number

of legislative measures were then pending before Congress and that Congress had

ample opportunity to vote to end military assistance to El Salvador if it wished.

On October 4, 1982, U.S. District Court Judge Joyce Hens Green dismissed the

suit. She ruled that Congress, not the court, must resolve the question of whether the

U.S. forces in El Salvador were involved in a hostile or potentially hostile situation.

While there might be situations in which a court could conclude that U.S. forces were

involved in hostilities, she ruled, the “subtleties of fact-finding in this situation

should be left to the political branches.” She noted that Congress had taken no action

to show it believed the President’s decision was subject to the War Powers

Resolution.25 On November 18, 1983, a Federal circuit court affirmed the dismissal

and on June 8, 1984, the Supreme Court declined consideration of an appeal of that

decision.26

As the involvement continued and casualties occurred among the U.S. military

advisers, various legislative proposals relating to the War Powers Resolution and El

Salvador were introduced. Some proposals required a specific authorization prior to

the introduction of U.S. forces into hostilities or combat in El Salvador.27 Other

proposals declared that the commitment of U.S. Armed Forces in El Salvador

necessitated compliance with section 4(a) of the War Powers Resolution, requiring

the President to submit a report.28

Neither approach was adopted in legislation, but the Senate Foreign Relations

Committee reported that the President had “a clear obligation under the War Powers

Resolution to consult with Congress prior to any future decision to commit combat

forces to El Salvador.”29 On July 26, 1983, the House rejected an amendment to the

Defense Authorization bill (H.R. 2969) to limit the number of active duty military

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

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

On March 8, 1982, Senator Robert Byrd introduced the War Powers Resolution

Amendment of 1982 (S. 2179) specifically providing that U.S. armed forces shall not be

introduced into El Salvador for combat unless (1) the Congress has declared war or

specifically authorized such use; or (2) such introduction was necessary to meet a clear and

present danger of attack on the United States or to provide immediate evacuation of U.S.

citizens. Similar bills were introduced in the House, e.g. H.R. 1619 and H.R. 1777 in the

98th Congress.

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

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

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advisers in El Salvador to 55, unless the President reported any increase above that

level under section 4(a)(1) of the War Powers Resolution.30 Nevertheless, the

Administration in practice kept the number of trainers at 55.

Honduras: When Are Military Exercises More than Training?

Military exercises in Honduras in 1983 and subsequent years raised the question

of when military exercises should be reported under the War Powers Resolution.

Section 4(a)(2) requires the reporting of introduction of troops equipped for combat,

but exempts deployments which relate solely to training.

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

planned for Central America and the Caribbean. The first contingent of U.S. troops

landed in Honduras on August 8, 1983, and the series of ground and ocean exercises

continued for several years, involving thousands of ground troops plus warships and

fighter planes.

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

He characterized the maneuvers as routine and said the United States had been

regularly conducting joint exercises with Latin American countries since 1965. Some

Members of Congress, on the other hand, contended that the exercises were part of

a policy to support the rebels or “contras” fighting the Sandinista Government of

Nicaragua, threatening that government, and increased the possibility of U.S. military

involvement in hostilities in Central America.

Several Members of Congress called for reporting the actions under the War

Powers Resolution, but some sought other vehicles for congressional control. In

1982, the Boland amendment to the Defense Appropriations Act had already

prohibited use of funds to overthrow the Government of Nicaragua or provoke a

military exchange between Nicaragua or Honduras.31 Variations of this amendment

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

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

stated the sense of Congress that U.S. armed forces should not be introduced into or

over Nicaragua for combat.32 In 1986, after U.S. helicopters ferried Honduran troops

to the Nicaraguan border area, Congress prohibited U.S. personnel from

participating in assistance within land areas of Honduras and Costa Rica within 120

miles of the Nicaraguan border, or from entering Nicaragua to provide military

advice or support to paramilitary groups operating in that country.33 Gradually the

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

The initial statutory restriction was contained in the Continuing Appropriations

Resolution for 1983, P.L. 97-377. This was followed by a $24 million ceiling on intelligence

agency support in FY1984.

Sec. 1451 of P.L.99-145, approved November 8, 1985. A similar provision was contained

in the defense authorization for 1988-1989, sec.1405 of P.L.100-180, approved December

4, 1987.

Continuing Appropriations Resolution, P. L. 99-591, approved October 30, 1986.

(continued...)

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

Sandinista regime in Nicaragua in 1990.

Lebanon: How Can Congress Invoke the War Powers

Resolution?

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

in a Multinational Force in Lebanon in 1982 became the targets of hostile fire in

August 1983. During this period President Reagan filed three reports under the War

Powers Resolution, but he did not report under section 4(a)(1) that the forces were

being introduced into hostilities or imminent hostilities, thus triggering the 60-90 day

time limit.

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

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

Resolution became operative on August 29, 1983.34 In the same resolution, Congress

authorized the continued participation of the Marines in the Multinational Force for

18 months. The resolution was a compromise between Congress and the President.

Congress obtained the President’s signature on legislation invoking the War Powers

Resolution for the first time, but the price for this concession was a congressional

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

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

send a small contingent of U.S. troops to a multinational force for temporary

peacekeeping in Lebanon. Chairman of the House Foreign Affairs Committee

Clement Zablocki wrote President Reagan that if such a force were sent, the United

States would be introducing forces into imminent hostilities and a report under

section 4(a)(1) would be required. When the forces began to land on August 25,

President Reagan reported but did not cite section 4(a)(1) and said the agreement

with Lebanon ruled out any combat responsibilities. After overseeing the departure

of the Palestine Liberation Organization force, the Marines in the first Multinational

Force left Lebanon on September 10, 1982.

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

President Reagan announced that the United States, France, and Italy had agreed to

form a new multinational force to return to Lebanon for a limited period of time to

help maintain order until the lawful authorities in Lebanon could discharge those

duties. The action followed three events that took place after the withdrawal of the

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

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

by Lebanese Christian militiamen.

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

had begun to arrive in Beirut, but again he did not cite section 4(a)(1), saying instead

(...continued)

Continued in P.L. 100-202, approved December 22, 1987.

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

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

which Marines were killed or wounded, there was again controversy in Congress on

whether the President’s report should have been filed under section 4(a)(1). In mid1983 Congress passed the Lebanon Emergency Assistance Act of 1983 requiring

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

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

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

standards and procedures prescribed by the War Powers Resolution of 1983.35

President Reagan reported on the Lebanon situation for the third time on August

30, 1983, still not citing section 4(a)(1), after fighting broke out between various

factions in Lebanon and two Marines were killed.

The level of fighting heightened, and as the Marine casualties increased and the

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

Resolution. Several Members of Congress said the situation had changed since the

President’s first report and introduced legislation that took various approaches.

Senator Charles Mathias introduced S.J.Res. 159 stating that the time limit specified

in the War Powers Resolution had begun on August 31, 1983, and authorizing the

forces to remain in Lebanon for a period of 120 days after the expiration of the

60-day period. Representative Thomas Downey introduced H.J.Res. 348 directing

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

Robert Byrd introduced S.J.Res. 163 finding that section 4(a)(1) of the war powers

resolution applied to the present circumstances in Lebanon. The House

Appropriations Committee approved an amendment to the continuing resolution for

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

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

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

report under section 4(a)(1) of the War Powers Resolution. A similar amendment

was later rejected by the full body, but it reminded the Administration of possible

congressional actions.

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

compromise resolution invoking section 4(a)(1) and authorizing the Marines to

remain for 18 months. The resolution became the first legislation to be handled

under the expedited procedures of the War Powers Resolution. On September 28,

the House passed H.J.Res. 364 by a vote of 270 to 161. After three days of debate,

on September 29, the Senate passed S.J.Res. 159 by a vote of 54 to 46. The House

accepted the Senate bill by a vote of 253 to 156. As passed, the resolution contained

four occurrences that would terminate the authorization before eighteen months: (1)

the withdrawal of all foreign forces from Lebanon, unless the President certified

continued U.S. participation was required to accomplish specified purposes; (2) the

assumption by the United Nations or the Government of Lebanon of the

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

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

CRS-17

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

in the Multinational Force.36

Shortly afterward, on October 23, 1983, 241 U.S. Marines in Lebanon were

killed by a suicide truck bombing, bringing new questions in Congress and U.S.

public opinion about U.S. participation. On February 7, 1984, President Reagan

announced the Marines would be redeployed and on, March 30, 1984, reported to

Congress that U.S. participation in the Multinational Force in Lebanon had ended.

Grenada: Do the Expedited Procedures Work?

On October 25, 1983, President Reagan reported to Congress “consistent with”

the War Powers Resolution that he had ordered a landing of approximately 1900 U.S.

Army and Marine Corps personnel in Grenada. He said that the action was in

response to a request from the Organization of Eastern Caribbean States which had

formed a collective security force to restore order in Grenada, where anarchic

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

Many Members of Congress contended that the President should have cited

section 4(a)(1) of the War Powers Resolution, which would have triggered the 60-90

day time limitation. On November 1, 1983, the House supported this interpretation

when it adopted, by a vote of 403-23, H.J Res. 402 declaring that the requirements

of section 4(a)(1) had become operative on October 25. The Senate did not act on

this measure and a conference was not held. The Senate had adopted a similar

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

deleted in the conference report on the debt limit bill to which it was attached.37

Thus both Houses had voted to invoke section 4(a)(1), but the legislation was not

completed.

On November 17, White House spokesman Larry Speakes said the

Administration had indicated that there was no need for action as the combat troops

would be out within the 60-90 day time period. Speaker Thomas O’Neill took the

position that, whether or not Congress passed specific legislation, the War Powers

Resolution had become operative on October 25. By December 15, 1983, all U.S.

combat troops had been removed from Grenada.

Eleven Members of Congress filed a suit challenging the constitutionality of

President Reagan’s invasion of Grenada. A district judge held that courts should not

decide such cases unless the entire Congress used the institutional remedies available

to it.38 An appellate court subsequently held that the issue was moot because the

invasion had been ended.39

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

U.S. Congress. H.Rept. 98-566 on H.J.Res. 308; Senate amendment numbered 3.

Congressional Record November 17, 1983, p. H10189.

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

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

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Libya: Should Congress Help Decide on Raids to Undertake

in Response to International Terrorism?

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

application of the War Powers Resolution to use of military force against

international terrorism.

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

Muammar Qadhafi had been mounting for several years, particularly after terrorist

incidents at the Rome and Vienna airports on December 27, 1985. On January 7,

1986, President Reagan said that the Rome and Vienna incidents were the latest in

a series of brutal terrorist acts committed with Qadhafi’s backing that constituted

armed aggression against the United States.

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

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

States fired missiles at Libyan vessels and at Sirte, the Libyan missile site involved.

The U.S. presence in the Gulf of Sidra, an area claimed by Libya, was justified as an

exercise to maintain freedom of the seas, but it was widely considered a response to

terrorist activities.

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

Berlin occurred and an American soldier was killed. On April 14 President Reagan

announced there was irrefutable evidence that Libya had been responsible, and U.S.

Air Force planes had conducted bombing strikes on headquarters, terrorist facilities,

and military installations in Libya in response.

The President reported both cases to Congress although the report on the

bombing did not cite section 4(a)(1) and the Gulf of Sidra report did not mention the

War Powers Resolution at all. Since the actions were short lived, there was no issue

of force withdrawal, but several Members introduced bills to amend the War Powers

Resolution. One bill called for improving consultation by establishing a special

consultative group in Congress.40 Others called for strengthening the President’s

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

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

against terrorist threats.41

Persian Gulf, 1987: When Are Hostilities Imminent?

The War Powers Resolution became an issue in activities in the Persian Gulf

after an Iraqi aircraft fired a missile on the USS Stark on May 17, 1987, killing 37

U.S. sailors. The attack broached the question of whether the Iran-Iraq war had made

the Persian Gulf an area of hostilities or imminent hostilities for U.S. forces. Shortly

S.J.Res. 340, introduced May 8, 1986. The bill was not acted upon, but the proposal was

later incorporated in other proposed amendments. See below, section on amendments.

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

upon.

CRS-19

afterwards, the U.S. adoption of a policy of reflagging and providing a naval escort

of Kuwaiti oil tankers through the Persian Gulf raised full force the question of

whether U.S. policy was risking involvement in war without congressional

authorization. During 1987 U.S. Naval forces operating in the Gulf increased to 11

major warships, 6 minesweepers, and over a dozen small patrol boats, and a

battleship-led formation was sent to the Northern Arabian Sea and Indian Ocean to

augment an aircraft carrier battle group already there.

For several months the President did not report any of the deployments or

military incidents under the War Powers Resolution, although on May 20, 1987, after

the Stark incident, Secretary of State Shultz submitted a report similar to previous

ones consistent with War Powers provisions, but not mentioning the Resolution. No

reports were submitted after the USS Bridgeton struck a mine on July 24, 1987, or

the U.S.-chartered Texaco-Caribbean struck a mine on August 10 and a U.S. F-14

fighter plane fired two missiles at an Iranian aircraft perceived as threatening.

Later, however, after various military incidents on September 23, 1987, and

growing congressional concern, the President began submitting reports “consistent

with” the War Powers Resolution and on July 13, 1988, submitted the sixth report

relating to the Persian Gulf.42 None of the reports were submitted under section

4(a)(1) or acknowledged that U.S. forces had been introduced into hostilities or

imminent hostilities. The Reagan administration contended that the military incidents

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

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

It held that “imminent danger” pay which was announced for military personnel in

the Persian Gulf on August 27, 1987, did not trigger section 4 (a)(1). Standards for

danger pay, namely, “subject to the threat of physical harm or danger on the basis of

civil insurrection, civil war, terrorism, or wartime conditions,” were broader than for

hostilities of the War Powers Resolution, and had been drafted to be available in

situations to which the War Powers Resolution did not apply. 43

Some Members of Congress contended that if the President did not report under

section 4(a)(1), Congress itself should declare such a report should have been

submitted, as it had in the Multinational Force in Lebanon Resolution. Several

resolutions to this effect were introduced, some authorizing the forces to remain, but

none were passed.44 The decisive votes on the subject took place in the Senate. On

September 18, 1987, the Senate voted 50-41 to table an amendment to the Defense

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

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

which would have invoked the War Powers Resolution, on December 4, 1987, and

a similar bill the following year, S.J.Res. 305, on June 6, 1988.

For the reports, see list above under section on reporting requirements.

Questions submitted to Department of State and responses thereto, March 30, 1988, in

War Powers Resolution, Relevant Documents, Correspondence, Reports, p. 97-99.

Bills to this effect in the House included H.J.Res. 387, introduced October 22, 1987,

which also authorized the continued presence of U.S. forces in the Gulf.

CRS-20

The Senate opted for a different approach, which was to use legislation to assure

a congressional role in the Persian Gulf policy without invoking the War Powers

Resolution. Early in the situation, both Chambers passed measures requiring the

Secretary of Defense to submit a report to Congress prior to the implementation of

any agreement between the United States and Kuwait for U.S. military protection of

Kuwaiti shipping, and such a report was submitted June 15, 1987. Later, the Senate

passed a measure that called for a comprehensive report by the President within 30

days and provided expedited procedures for a joint resolution on the subject after an

additional 30 days.45 The House did not take action on the bill.

As in the case of El Salvador, some Members took the War Powers issue to

court. On August 7, 1987, Representative Lowry and 110 other Members of

Congress filed suit in the U.S. District Court for the District of Columbia, asking the

court to declare that a report was required under section 4(a)(1). On December 18,

1987, the court dismissed the suit, holding it was a nonjusticiable political question,

and that the plaintiffs’ dispute was “primarily with fellow legislators.”46

Compliance with the consultation requirement was also an issue. The

Administration developed its plan for reflagging and offered it to Kuwait on March

7, 1987, prior to discussing the plan with Members of Congress. A June 15, 1987,

report to Congress by the Secretary of Defense stated on the reflagging policy, “As

soon as Kuwait indicated its acceptance of our offer, we began consultations with

Congress which are still ongoing.”47 This was too late for congressional views to be

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

policy. Subsequently, however, considerable consultation developed and the

President met with various congressional leaders prior to some actions such as the

retaliatory actions in April 1988 against an Iranian oil platform involved in minelaying.

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

that the War Powers Resolution was not being complied with, unless the President

reported under section 4(a)(1) or Congress itself voted to invoke the Resolution.

Other Members contended the Resolution was working by serving as a restraint on

the President, who was now submitting reports and consulting with Congress.48 Still

other Members suggested the Persian Gulf situation was demonstrating the need to

amend the War Powers Resolution.

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

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

Powers Litigation Since the Enactment of the War Powers Resolution, by David M.

Ackerman.

Weinberger, Caspar W. Secretary of Defense. A Report to the Congress on Security

Arrangements in the Persian Gulf. June 15, 1987, p.14.

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

complying with a part of that act, although we do not call it that. But we have been

consulting the Congress, reporting to them and telling them what we’re doing, and in

advance...” Press conference of October 22,1987. The New York Times, October 23, 1987,

p. A8.

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

Foreign Affairs Committee and the Senate Foreign Relations Committee, which

established a Special Subcommittee on War Powers, undertook extensive

assessments of the War Powers Resolution. Interest in the issue waned after a ceasefire between Iran and Iraq began on August 20, 1988, and the United States reduced

its forces in the Persian Gulf area.

Invasion of Panama: Why Was the War Powers Issue Not

Raised?

On December 20, 1989, President Bush ordered 14,000 U.S. military forces to

Panama for combat, in addition to 13,000 already present. On December 21, he

reported to Congress under the War Powers Resolution but without citing section

4(a)(1). His stated objectives were to protect the 35,000 American citizens in

Panama, restore the democratic process, preserve the integrity of the Panama Canal

treaties, and apprehend General Manuel Noriega, who had been accused of massive

electoral fraud in the Panamanian elections and indicted on drug trafficking charges

by two U.S. Federal courts. The operation proceeded swiftly and General Noriega

surrendered to U.S. military authorities on January 3. President Bush said the

objectives had been met, and U.S. forces were gradually withdrawn. By February 13,

all combat forces deployed for the invasion had been withdrawn, leaving the strength

just under the 13,597 forces stationed in Panama prior to the invasion.

The President did not consult with congressional leaders before his decision,

although he did notify them a few hours in advance of the invasion. Members of

Congress had been discussing the problem of General Noriega for some time. Before

Congress adjourned, it had called for the President to intensify unilateral, bilateral,

and multilateral measures and consult with other nations on ways to coordinate

efforts to remove General Noriega from power.49 The Senate had adopted an

amendment supporting the President’s use of appropriate diplomatic, economic, and

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

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

defeated an amendment authorizing the President to use U.S. military force to secure

the removal of General Noriega “notwithstanding any other provision of law.”50

The Panama action did not raise much discussion in Congress about the War

Powers Resolution. This was in part because Congress was out of session. The first

session of the 101st Congress had ended on November 22, 1989, and the second

session did not begin until January 23, 1990, when the operation was essentially over

and it appeared likely the additional combat forces would be out of Panama within

60 days of their deployment. Moreover, the President’s action in Panama was very

popular in American public opinion and supported by most Members of Congress

because of the actions of General Noriega. After it was over, on February 7, 1990,

the House Passed H.Con.Res. 262 which stated that the President had acted

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

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

CRS-22

“decisively and appropriately in ordering United States forces to intervene in

Panama.”

Major Cases and Issues in the Post-Cold War

World: United Nations Actions

After the end of the Cold War in 1990, the United States began to move away

from unilateral military actions toward actions authorized or supported by the United

Nations. Under the auspices of U.N. Security Council resolutions, U.S. forces were

deployed in Kuwait and Iraq, Somalia, former Yugoslavia/Bosnia/, and Haiti. This

raised the new issue of whether the War Powers Resolution applied to U.S.

participation in U.N. military actions. It was not a problem during the Cold War

because the agreement among the five permanent members required for Security

Council actions seldom existed. An exception, the Korean war, occurred before the

War Powers Resolution was enacted.51

The more basic issue — under what circumstances congressional authorization

is required for U.S. participation in U.N. military operations — is an unfinished

debate remaining from 1945. Whether congressional authorization is required

depends on the types of U.N. action and is governed by the U.N. Participation Act

(P.L. 79-264, as amended), as well as by the War Powers Resolution and war powers

under the Constitution. Appropriations action by Congress also may be

determinative as a practical matter.

For armed actions under Articles 42 and 43 of the United Nations Charter,

Section 6 of the U.N. Participation Act authorizes the President to negotiate special

agreements with the Security Council “which shall be subject to the approval of the

Congress by appropriate Act or joint resolution”, providing for the numbers and

types of armed forces and facilities to be made available to the Security Council.

Once the agreements have been concluded, further congressional authorization is not

necessary, but no such agreements have been concluded.

Section 7 of the United Nations Participation Act, added in 1949 by P.L. 81341, authorizes the detail of up to 1,000 personnel to serve in any noncombatant

capacity for certain U.N. peaceful settlement activities. The United States has

provided personnel to several U.N. peacekeeping missions, such as observers to the

U.N. Truce Supervision Organization in Palestine since 1948, that appear to fall

within the authorization in Section 7 of the Participation Act. Controversy has arisen

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

might be serving as combatants.

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

Security Council requested members to supply the Republic of Korea with sufficient

military assistance to repel the invasion of North Korea. President Truman ordered U.S. air,

naval, and ground forces to Korea to repel the attack without authorization from Congress.

Senator Robert Taft complained on January 5, 1951, “The President simply usurped

authority in violation of the laws and the Constitution, when he sent troops to Korea to carry

out the resolution of the United Nations in an undeclared war.”

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The War Powers Resolution neither excludes United Nations actions from its

provisions nor makes any special procedures for them. Section 8(a)(2) states that

authority to introduce U. S. Armed Forces into hostilities shall not be inferred from

any treaty unless it is implemented by legislation specifically authorizing the

introduction and stating that it is intended to constitute specific statutory

authorization within the meaning of the War Powers resolution.52 One purpose of

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

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

approved a treaty. 53

From 1990 through 1999, Congress primarily dealt with the issue on a case by

case basis, but Members also enacted some measures seeking more control over U.S.

participation in future peacekeeping actions wherever they might occur. The Defense

Appropriations Act for FY1994 stated the sense of Congress that funds should not

be expended for U.S. Armed Forces serving under U.N. Security Council actions

unless the President consults with Congress at least 15 days prior to deployment and

not later than 48 hours after such deployment, except for humanitarian operations.54

The Defense Authorization Act for FY1994 required a report to Congress by April

1, 1994, including discussion of the requirement of congressional approval for

participation of U.S. Armed Forces in multinational peacekeeping missions,

proposals to conclude military agreements with the U.N. Security Council under

Article 43 of the U.N. Charter, and the applicability of the War Powers Resolution

and the U.N. Participation Act.55 In 1994 and 1995, Congress attempted to gain a

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

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

America, H.R. 7, would have placed notable constraints on Presidential authority to

commit U.S. forces to international peacekeeping operations. Senator Dole’s, S. 5,

The Peace Powers Act, introduced in January 1995, would have also placed greater

legislative controls on such operations. General and specific funding restrictions and

Presidential reporting requirements were passed for peacekeeping operations

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

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

given cases.56

Such a statement was made in the Authorization for Use of Military Force against Iraq

Resolution, P.L. 102-1, signed January 14, 1991, and in S.J.Res. 45, authorizing the use of

force in Somalia for one year, as passed by the Senate on February 4, 1993, and amended

by the House on May 25, 1993; a conference was not held.

U.S. Congress. Senate. Committee on Foreign Relations. War Powers; report to

accompany S. 440. June 14, 1973. S.Rept. 93-220.

Sec.8153, Department of Defense Appropriation Act for FY1994, H.R. 3116, P.L. 103139, signed November 11, 1993.

Sec. 1502 (11), Defense Authorization Act for FY1994, P.L. 103-160, signed November

30, 1993.

For background see CRS Report RL33557, Peacekeeping and Related Stability

Operations: Issues of U.S. Military Involvement, by Nina M. Serafino.

CRS-24

Persian Gulf War, 1991: How Does the War Powers

Resolution Relate to the United Nations and a Real War?

On August 2, 1990, Iraqi troops under the direction of President Saddam

Hussein invaded Kuwait, seized its oil fields, installed a new government in Kuwait

City, and moved on toward the border with Saudi Arabia. Action to repel the

invasion led to the largest war in which the United States has been involved since the

passage of the War Powers Resolution. Throughout the effort to repel the Iraqi

invasion, President Bush worked in tandem with the United Nations, organizing and

obtaining international support and authorization for multilateral military action

against Iraq.

A week after the invasion, on August 9, President Bush reported to Congress

“consistent with the War Powers Resolution” that he had deployed U.S. armed forces

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

cite section 4(a)(1) and specifically stated, “I do not believe involvement in hostilities

is imminent.”

The President did not consult with congressional leaders prior to the

deployment, but both houses of Congress had adopted legislation supporting efforts

to end the Iraqi occupation of Kuwait, particularly using economic sanctions and

multilateral efforts. On August 2, shortly before its recess, the Senate by a vote of

97-0 adopted S.Res. 318 urging the President “to act immediately, using unilateral

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

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

against Iraq including, if economic sanctions prove inadequate, “additional

multilateral actions, under Article 42 of the United Nations Charter, involving air,

sea, and land forces as may be needed...” Senate Foreign Relations Committee

Chairman Pell stressed, however, that the measure did not authorize unilateral U.S.

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

Iraqi invasion and calling for an economic embargo against Iraq.

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

the United States and United Kingdom organized an international naval interdiction

effort.57 Later, on August 25, the U.N. Security Council authorized “such measures

as may be necessary” to halt shipping and verify cargoes that might be going to Iraq.

Both Houses adopted measures supporting the deployment, but neither measure

was enacted. On October 1, 1990, the House passed H.J.Res. 658 supporting the

action and citing the War Powers Resolution without stating that Section 4(a)(1) had

become operative. The resolution quoted the President’s statement that involvement

in hostilities was not imminent. Representative Fascell stated that H.J.Res. 658 was

not to be interpreted as a Gulf of Tonkin resolution that granted the President open-

On August 17, 1990, Acting Secretary of State Robert M. Kimmitt sent a formal letter to

Congress (not mentioning the War Powers Resolution) stating, “It is not our intention or

expectation that the use of force will be required to carry out these operations. However,

if other means of enforcement fail, necessary and proportionate force will be employed to

deny passage to ships that are in violation of these sanctions.”

CRS-25

ended authority, and that it made clear that “a congressional decision on the issue of

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

act on H.J.Res. 658.

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

stating that “Congress supports continued action by the President in accordance with

the decisions of the United Nations Security Council and in accordance with United

States constitutional and statutory processes, including the authorization and

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

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

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

similar to the Gulf of Tonkin resolution. The resolution made no mention of the War

Powers Resolution. The House did not act on S.Con.Res. 147. Congress also

supported the action by appropriating funds for the preparatory operation, called

Operation Desert Shield, and later for war activities called Operation Desert Storm.

Some Members introduced legislation to establish a special consultation group,

but the Administration objected to a formally established group. On October 23,

1990, Senate Majority Leader Mitchell announced that he and Speaker Foley had

designated Members of the joint bipartisan leadership and committees of jurisdiction

to make themselves available as a group for consultation on developments in the

Persian Gulf. By this time U.S. land, naval, and air forces numbering more than

200,000 had been deployed.

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

ordered an estimated additional 150,000 troops to the Gulf. He incurred considerable

criticism because he had not informed the consultation group of the buildup although

he had met with them on October 30. On November 16, President Bush sent a

second report to Congress describing the continuing and increasing deployment of

forces to the region. He stated that his opinion that hostilities were not imminent had

not changed. The President wrote, “The deployment will ensure that the coalition has

an adequate offensive military option should that be necessary to achieve our

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

deployed to the area.

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

November 20, 1990, Representative Ron Dellums and 44 other Democratic Members

of Congress sought a judicial order enjoining the President from offensive military

operations in connection with Operation Desert Shield unless he consulted with and

obtained an authorization from Congress. On November 26, 11 prominent law

professors filed a brief in favor of such a judicial action, arguing that the Constitution

clearly vested Congress with the authority to declare war and that Federal judges

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

American Civil Liberties Union also filed a memorandum in favor of the plaintiffs.

On December 13, Judge Harold Greene of the Federal district court in Washington

denied the injunction, holding that the controversy was not ripe for judicial resolution

because a majority of Congress had not sought relief and the executive branch had

CRS-26

not shown sufficient commitment to a definitive course of action.58 However,

throughout his opinion Judge Greene rejected the Administration’s arguments for full

Presidential war powers.

On November 29, 1990, U.N. Security Council Resolution 678 authorized

member states to use “all necessary means” to implement the Council’s resolutions

and restore peace and security in the area, unless Iraq complied with the U.N.

resolutions by January 15, 1991. As the deadline for Iraqi withdrawal from Kuwait

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

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

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

additional congressional authorization for this purpose.59

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

leaders announced they would debate U.S. policy beginning January 10. A week

before the January 15 deadline, on January 8, 1991, President Bush, in a letter to the

congressional leaders, requested a congressional resolution supporting the use of all

necessary means to implement U.N. Security Council Resolution 678. He stated that

he was “determined to do whatever is necessary to protect America’s security” and

that he could “think of no better way than for Congress to express its support for the

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

resolution was a request for congressional “support” for his undertaking in the

Persian Gulf, not for “authority” to engage in the military operation. In a press

conference on January 9, 1991, President Bush reinforced this distinction in response

to questions about the use of force resolution being debated in Congress. He was

asked whether he thought he needed the resolution, and if he lost on it would he feel

bound by that decision. President Bush in response stated: “I don’t think I need it...I

feel that I have the authority to fully implement the United Nations resolutions.” He

added that he felt that he had “the constitutional authority — many attorneys having

so advised me.”60

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

Force Against Iraq Resolution” (P.L. 102-1).61 Section 2(a) authorized the President

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

achieve implementation of the earlier Security Council resolutions. Section 2(b)

required that first the President would have to report that the United States had used

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

Statement by Secretary of Defense Richard Cheney. U.S. Congress. Senate. Committee

on Armed Services. Crisis in the Persian Gulf Region: U.S. Policy Options and

Implications. September 11-December 3, 1990, S.Hrg. 101-1071, pp. 701-2.

Weekly Compilation of Presidential Documents. January 14, 1991. Vol. 27, No. 2, pp.1718; pp. 24-25.

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

then considered H.J.Res. 77 as passed. The Senate vote was 52 to 47. The bill became P.L.

102-1, signed January 14, 1991. On January 12, to emphasize the congressional power to

declare war, the House also adopted by a vote of 302 to 131 H.Con.Res. 32 expressing the

sense that Congress must approve any offensive military actions against Iraq; the Senate did

not act on the measure.

CRS-27

all appropriate diplomatic and other peaceful means to obtain compliance by Iraq

with the Security Council resolution and that those efforts had not been successful.

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

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

required the President to report every 60 days on efforts to obtain compliance of Iraq

with the U.N. Security Council resolution.

In his statement made after signing H.J.Res. 77 into law, President Bush said the

following: “As I made clear to congressional leaders at the outset, my request for

congressional support did not, and my signing this resolution does not, constitute any

change in the long-standing positions of the executive branch on either the

President’s constitutional authority to use the Armed Forces to defend vital U.S.

interests or the constitutionality of the War Powers Resolution.” He added that he

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

Congress have not prevented us from uniting in a common objective.”62

On January 16, President Bush made the determination required by P.L. 102-1

that diplomatic means had not and would not compel Iraq to withdraw from Kuwait.

On January 18, he reported to Congress “consistent with the War Powers Resolution”

that he had directed U.S. forces to commence combat operations on January 16.

After the beginning of the war Members of Congress strongly supported the

President as Commander-in-Chief in his conduct of the war. On March 19, 1991,

President Bush reported to Congress that the military operations had been successful,

Kuwait had been liberated, and combat operations had been suspended on February

28, 1991.

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

the War Powers Resolution on grounds that the President had begun the action,

deployed hundreds of thousands of troops without consultation of Congress, and was

moving the Nation increasingly close to war without congressional authorization.

After the passage of P.L. 102-1 and the war had begun, Chairman of the House

Committee on Foreign Affairs Fascell took the position that “the War Powers

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

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

force. In his view, the strength and wisdom of the War Powers Resolution was that

it established a process by which Congress could authorize the use of force in

specific settings for limited purposes, short of a total state of war.

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

Speaker Foley told the National Press Club on February 7, 1991, that “The reason we

did not declare a formal war was not because there is any difference I think in the

Weekly Compilation of Presidential Documents. January 21, 1991. Vol. 27, No. 3, pp.4849. Subsequently, on June 20,1992, during remarks to the Texas State Republican

Convention in Dallas, Texas, President Bush said: “Some people say, why can’t you bring

the same kind of purpose and success to the domestic scene as you did in Desert Shield and

Desert Storm? And the answer is: I didn’t have to get permission from some old goat in the

United States Congress to kick Saddam Hussein out of Kuwait. That’s the reason.” Weekly

Compilation of Presidential Documents. June 29, 1992. Vol. 28, No. 26, pp.1120-1121.

CRS-28

action that was taken and in a formal declaration of war with respect to military

operations, but because there is some question about whether we wish to excite or

enact some of the domestic consequences of a formal declaration of war — seizure

of property, censorship, and so forth, which the President neither sought nor desired.”

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

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

with three continuing situations in Iraq. These activities raised the issue of how long

a congressional authorization for the use of force lasts.

The first situation resulted from the Iraqi government’s repression of Kurdish

and Shi’ite groups. U.N. Security Council Resolution 688 of April 5, 1991,

condemned the repression of the Iraqi civilian population and appealed for

contributions to humanitarian relief efforts. On May 17, 1991, President Bush

reported to Congress that the Iraqi repression of the Kurdish people had necessitated

a limited introduction of U.S. forces into northern Iraq for emergency relief purposes.

On July 16, 1991, he reported that U.S. forces had withdrawn from northern Iraq but

that the U.S. remained prepared to take appropriate steps as the situation required and

that, to this end, an appropriate level of forces would be maintained in the region for

“as long as required.”

A second situation stemmed from the cease-fire resolution, Security Council

Resolution 687 of April 3, 1991, which called for Iraq to accept the destruction or

removal of chemical and biological weapons and international control of its nuclear

materials. On September 16, 1991, President Bush reported to Congress that Iraq

continued to deny inspection teams access to weapons facilities and that this violated

the requirements of Resolution 687, and the United States if necessary would take

action to ensure Iraqi compliance with the Council’s decisions. He reported similar

non-cooperation on January 14, 1992, and May 15, 1992.

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

of Iraqi authorities to grant U.N. inspectors access to the Agricultural Ministry. The

President consulted congressional leaders on July 27, and in early August the United

States began a series of military exercises to take 5,000 U.S. troops to Kuwait. On

September 16, 1992, the President reported, “We will remain prepared to use all

necessary means, in accordance with U.N. Security Council resolutions, to assist the

United Nations in removing the threat posed by Iraq’s chemical, biological, and

nuclear weapons capability.”

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

the United States, Britain, and France began a “no-fly” zone, banning Iraqi fixed

wing and helicopter flights south of the 32nd parallel and creating a limited security

zone in the south, where Shi’ite groups were concentrated. After violations of the

no-fly zones and various other actions by Iraq, on January 13, 1993, the Bush

Administration announced that aircraft from the United States and coalition partners

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

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

Kuwait’s independence. On January 19, 1993, President Bush reported to Congress

CRS-29

that U.S. aircraft had shot down an Iraqi aircraft on December 27, 1992, and had

undertaken further military actions on January 13, 17, and 18.

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

to the policy toward Iraq set by the Bush Administration. On January 22 and 23,

April 9 and 18, June 19, and August 19, 1993, U.S. aircraft fired at targets in Iraq

after pilots sensed Iraqi radar or anti-aircraft fire directed at them. On September 23,

1993, President Clinton reported that since the August 19 action, the Iraqi

installation fired upon had not displayed hostile intentions.

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

“consistent with the War Powers Resolution” that on June 26 U.S. naval forces at his

direction had launched a Tomahawk cruise missile strike on the Iraqi Intelligence

Service’s main command and control complex in Baghdad and that the military

action was completed upon the impact of the missiles. He said the Iraqi Intelligence

Service had planned the failed attempt to assassinate former President Bush during

his visit to Kuwait in April 1993.

The question was raised as to whether the Authorization for the Use of Force in

Iraq (P.L. 102-1) authorized military actions after the conclusion of the war. P.L.

102-1 authorized the President to use U.S. armed forces pursuant to U.N. Security

Council Resolution 678 to achieve implementation of previous Security Council

Resolutions relating to Iraq’s invasion of Kuwait. The cease-fire resolution, Security

Council Resolution 687, was adopted afterwards and therefore not included in

Resolution 678.

Congress endorsed the view that further specific authorization was not required

for U.S. military action to maintain the cease-fire agreement. Specifically, section

1095 of P.L.102-190 stated the sense of Congress that it supported the use of all

necessary means to achieve the goals of Security Council Resolution 687 as being

consistent with the Authorization for Use of Military Force Against Iraq Resolution.

Section 1096 supported the use of all necessary means to protect Iraq’s Kurdish

minority, consistent with relevant U.N. resolutions and authorities contained in P.L.

102-1. The issue of Congressional authorization was debated again in 1998. On

March 31, 1998, the House passed a Supplemental Appropriations bill (H.R. 3579)

that would have banned the use of funds appropriated in it for the conduct of

offensive operations against Iraq, unless such operations were specifically authorized

by law. This provision was dropped in the conference with the Senate.

A more broad-gauged approach to the issue of Congressional authorization of

military force was attempted in mid-1998. On June 24, 1998, the House passed H.R.

4103, the Defense Department Appropriations bill for FY1999, with a provision by

Representative David Skaggs that banned the use of funds appropriated or otherwise

made available by this Act “to initiate or conduct offensive military operations by

United States Armed Forces except in accordance with the war powers clause of the

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

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

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

CRS-30

As events developed, beginning in late 1998, and continuing into the period

prior to the U.S. military invasion of Iraq in March 2003, the United States conducted

a large number of ad-hoc air attacks against Iraqi ground installations and military

targets in response to violations of the Northern and Southern “no-fly zones” by the

Iraqi, and threatening actions taken against U.S. and coalition aircraft enforcing these

“no-fly” sectors. Congressional authorization to continue these activities was not

sought by the President, nor were these many incidents reported under the War

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

2003 War with Iraq.

Somalia: When Does Humanitarian Assistance Require

Congressional Authorization?

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

protect humanitarian assistance became increasingly controversial as fighting and

casualties increased and the objectives of the operation appeared to be expanding.

On December 4, 1992, President Bush ordered thousands of U.S. military forces

to Somalia to protect humanitarian relief from armed gangs. Earlier, on November

25, the President had offered U.S. forces, and on December 3, the United Nations

Security Council had adopted Resolution 794 welcoming the U.S. offer and

authorizing the Secretary-General and members cooperating in the U.S. offer “to use

all necessary means to establish as soon as possible a secure environment for

humanitarian relief operations in Somalia.” The resolution also called on member

states to provide military forces and authorized the Secretary-General and the states

concerned to arrange for unified command and control.

On December 10, 1992, President Bush reported to Congress “consistent with

the War Powers Resolution” that on December 8, U.S. armed forces entered Somalia

to secure the air field and port facility of Mogadishu and that other elements of the

U.S. armed forces were being introduced into Somalia to achieve the objectives of

U.N. Security Council Resolution 794. He said the forces would remain only as long

as necessary to establish a secure environment for humanitarian relief operations and

would then turn over responsibility for maintaining this environment to a U.N.

peacekeeping force. The President said that it was not intended that the U.S. armed

forces become involved in hostilities, but that the forces were equipped and ready to

take such measures as might be needed to accomplish their humanitarian mission and

defend themselves. They would also have the support of any additional U.S. forces

necessary. By mid-January, U.S. forces in Somalia numbered 25,000.

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

necessarily triggered. By February, however, the U.S. force strength was being

reduced, and it was announced the United States expected to turn over responsibility

for protecting humanitarian relief shipments in Somalia to a U.N. force that would

include U.S. troops. On March 26, 1993, the Security Council adopted Resolution

814 expanding the mandate of the U.N. force and bringing about a transition from a

U.S.-led force to a U.N.-led force (UNOSOM II). By the middle of May, when the

change to U.N. control took place, the U.S. forces were down to approximately 4,000

CRS-31

troops, primarily logistics and communications support teams, but also a rapid

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

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

killed 23 Pakistani peacekeepers, and a Somali regional leader, General Aidid, was

believed responsible. The next day the U.N. Security Council adopted Resolution

837 reaffirming the authority of UNOSOM II to take all necessary measures against

those responsible for the armed attacks. On June 10, 1993, President Clinton reported

“consistent with the War Powers Resolution” that the U.S. Quick Reaction Force had

executed military strikes to assist UNOSOM II in quelling violence against it. On

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

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

General Aidid’s compound and neutralizing military capabilities that had been an

obstacle to U.N. efforts to deliver humanitarian relief and promote national

reconstruction.

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

action in Somalia. On February 4, 1993, the Senate had passed S.J.Res. 45 that would

authorize the President to use U.S. armed forces pursuant to U.N. Security Council

Resolution 794. S.J.Res. 45 stated it was intended to constitute the specific statutory

authorization under Section 5(b) of the War Powers Resolution. On May 25, 1993,

the House amended S.J.Res. 45 to authorize U.S. forces to remain for one year.

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

on the measure.

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

Americans, controversy over the operation intensified, and Congress took action

through other legislative channels. In September 1993 the House and Senate adopted

amendments to the Defense Authorization Act for FY1994 asking that the President

consult with Congress on policy toward Somalia, and report the goals, objectives, and

anticipated jurisdiction of the U.S. mission in Somalia by October 15, 1993; the

amendments expressed the sense that the President by November 15, 1993, should

seek and receive congressional authorization for the continued deployment of U.S.

forces to Somalia. 63 On October 7, the President consulted with congressional

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

President Clinton sent a 33-page report to Congress on his Somalia policy and its

objectives.

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

withdrawn from Somalia by March 31, 1994. To ensure this, the Defense

Department Appropriations Act for FY1994, cut off funds for U.S. military

operations in Somalia after March 31, 1994, unless the President obtained further

spending authority from Congress.64 Congress approved the use of U.S. military

forces in Somalia only for the protection of American military personnel and bases

and for helping maintain the flow of relief aid by giving the U.N. forces security and

logistical support; it required that U.S. combat forces in Somalia remain under the

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

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

CRS-32

command and control of U.S. commanders under the ultimate direction of the

President.

Earlier, some Members suggested that the U.S. forces in Somalia were clearly

in a situation of hostilities or imminent hostilities, and that if Congress did not

authorize the troops to remain, the forces should be withdrawn within 60 to 90 days.

After a letter from House Foreign Affairs Committee Ranking Minority Member

Benjamin Gilman and Senate Foreign Relations Committee Ranking Minority

Member Jesse Helms, Assistant Secretary Wendy Sherman replied on July 21, 1993,

that no previous Administrations had considered that intermittent military

engagements, whether constituting hostilities, would necessitate the withdrawal of

forces pursuant to Section 5(b); and the War Powers Resolution, in their view, was

intended to apply to sustained hostilities. The State Department did not believe

congressional authorization was necessary, although congressional support would be

welcome. On August 4, 1993, Representative Gilman asserted that August 4 might

be remembered as the day the War Powers Resolution died because combat broke out

in Somalia on June 5 and the President had not withdrawn U.S. forces and Congress

had “decided to look the other way.” On October 22, 1993, Representative Gilman

introduced H.Con.Res. 170 directing the President pursuant to section 5(c) of the

War Powers Resolution to withdraw U.S. forces from Somalia by January 31, 1994.

The House adopted an amended version calling for withdrawal by March 31, 1994.65

The Senate did not act on this non-binding measure.

However, the Defense Appropriations Act for FY1995 (P.L. 103-335, signed

September 30, 1994) prohibited the use of funds for the continuous presence of U.S.

forces in Somalia, except for the protection of U.S. personnel, after September 30,

1994. Subsequently, on November 4, 1994, the U.N. Security Council decided to end

the U.N. mission in Somalia by March 31, 1995. On March 3, 1995, U.S. forces

completed their assistance to United Nations forces evacuating Somalia.

Another war powers issue was the adequacy of consultation before the dispatch

of forces. On December 4, 1992, President Bush had met with a number of

congressional leaders to brief them on the troop deployment. In his December 10

report, President Bush stressed that he had taken into account the views expressed in

H.Con.Res. 370, S.Con.Res. 132, and P.L. 102-274 on the urgent need for action in

Somalia. However, none of these resolutions explicitly authorized U.S. military

action.

Former Yugoslavia/Bosnia/Kosovo: What If No Consensus

Exists?

Bosnia. The issue of war powers and U.S. participation in United Nations

actions was also raised by efforts to halt fighting in the territory of former

Yugoslavia, initially in Bosnia. Because some of the U.S. action has been taken

within a NATO framework, action in Bosnia has also raised the issue of whether

action under NATO is exempt from the requirements of the War Powers Resolution

or its standard for the exercise of war powers under the Constitution. Article 11 of

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

CRS-33

the North Atlantic Treaty states that its provisions are to be carried out by the parties

“in accordance with their respective constitutional processes,” inferring some role for

Congress in the event of war. Section 8(a) of the War Powers Resolution states that

authority to introduce U.S. forces into hostilities is not to be inferred from any treaty,

ratified before or after 1973, unless implementing legislation specifically authorizes

such introduction and says it is intended to constitute an authorization within the

meaning of the War Powers Resolution. Section 8(b) states that nothing in the War

Powers Resolution should be construed to require further authorization for U.S.

participation in the headquarters operations of military commands established before

1973, such as NATO headquarters operations.

On August 13, 1992, the U.N. Security Council adopted Resolution 770 calling

on nations to take “all measures necessary” to facilitate the delivery of humanitarian

assistance to Sarajevo. Many in Congress had been advocating more assistance to

the victims of the conflict. On August 11, 1992, the Senate had passed S.Res. 330

urging the President to work for a U.N. Security Council resolution such as was

adopted, but saying that no U.S. military personnel should be introduced into

hostilities without clearly defined objectives. On the same day, the House passed

H.Res. 554 urging the Security Council to authorize measures, including the use of

force, to ensure humanitarian relief.

During 1993 the United States participated in airlifts into Sarajevo, naval

monitoring of sanctions, and aerial enforcement of a “no-fly zone.” On February 10,

1993, Secretary of State Warren Christopher announced that under President Clinton,

the United States would try to convince the Serbs, Muslims, and Croats to pursue a

diplomatic solution and that if an agreement was reached, U.S. forces, including

ground forces, would help enforce the peace. On February 28, 1993, the United

States began an airdrop of relief supplies aimed at civilian populations, mainly

Muslims, surrounded by fighting in Bosnia.

On March 31, 1993, the U.N. Security Council authorized member states to take

all necessary measures to enforce the ban on military flights over Bosnia, the “no-fly

zone”. NATO planes, including U.S. planes, began patrolling over Bosnia and

Herzegovina on April 12, 1993, to enforce the Security Council ban, and the next

day, President Clinton reported the U.S. participation “consistent with Section 4 of

the War Powers Resolution.”

Conflict continued, but the situation was complicated and opinion in Congress

and among U.N. and NATO members was divided. President Clinton consulted with

about two dozen congressional leaders on potential further action on April 27 and

received a wide range of views. On May 2, the Administration began consultation

with allies to build support for additional military action to enforce a cease-fire and

Bosnian Serb compliance with a peace agreement, but a consensus on action was not

reached.

On June 10, 1993, Secretary of State Christopher announced the United States

would send 300 U.S. troops to join 700 Scandinavians in the U.N. peacekeeping

CRS-34

force in Macedonia.66 The mission was established under U.N. Security Council

Resolution 795 (1992), which sought to prevent the war in Bosnia from spilling over

to neighboring countries. President Clinton reported this action “consistent with

Section 4 of the War Powers Resolution” on July 9, 1993. He identified U.S. troops

as part of a peacekeeping force, and directed in accordance with Section 7 of the U.N.

Participation Act.

Planning for U.N. and NATO action to implement a prospective peace

agreement included the possibility that the United States might supply 25,000 out of

50,000 NATO forces to enforce U.N. decisions. This possibility brought proposals

to require congressional approval before the dispatch of further forces to Bosnia. On

September 23, 1993, Senate Minority Leader Robert Dole said he intended to offer

an amendment stating that no additional U.S. forces should be introduced into former

Yugoslavia without advance approval from Congress. Assistant Secretary of State

Stephen Oxman said on October 5 that the Clinton Administration would consult

with Congress and not commit American troops to the implementation operation for

a peace agreement without congressional support, and that the Administration would

act consistent with the War Powers Resolution. Congress sought to assure this in

Section 8146 of P.L. 103-139, the Defense Appropriation Act for FY1994, stating the

sense of Congress that funds should not be available for U.S. forces to participate in

new missions or operations to implement the peace settlement in Bosnia unless

previously authorized by Congress. This provision was sponsored by the Senate by

leaders Mitchell and Dole.

At the NATO summit conference in Brussels on January 11, 1994, leaders,

including President Clinton, repeated an August threat to undertake air strikes on

Serb positions to save Sarajevo and to consider other steps to end the conflict in

Bosnia. On February 17, 1994, President Clinton reported “consistent with” the War

Powers Resolution that the United States had expanded its participation in United

Nations and NATO efforts to reach a peaceful solution in former Yugoslavia and that

60 U.S. aircraft were available for participation in the authorized NATO missions.

On March 1, 1994, he reported that on the previous day U.S. planes patrolling the

“no-fly zone” under the North Atlantic Treaty Organization (NATO) shot down 4

Serbian Galeb planes. On April 12, 1994, the President reported that on April 10 and

11, following shelling of Gorazde, one of the “safe areas,” and a decision by U.N.

and NATO leaders, U.S. planes bombed Bosnian Serbian nationalist positions around

Gorazde. On August 22, 1994, President Clinton similarly reported that on August

5, U.S. planes under NATO had strafed a Bosnian Serb gun position in an exclusion

zone. On September 22, 1994, two British and one U.S. aircraft bombed a Serbian

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

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

Netherlands bombed the runway of a Serb airfield in Croatia.

As the conflict in Bosnia continued, leaders in Congress called for greater

congressional involvement in decisions. Senator Dole introduced S. 2042, calling for

The name of this area is in dispute. The provisional name, which is used for its

designation as a member of the United Nations, is “The Former Yugoslav Republic of

Macedonia.” This report uses the term “Macedonia” without prejudice.

CRS-35

the United States to end unilaterally its arms embargo, conducted in accordance with

a U.N. Security Council Resolution, against Bosnia and Herzegovina. On May 10,

1994, Senate Majority Leader George Mitchell introduced an amendment to

authorize and approve the President’s decision to carry out NATO decisions to

support and protect UNPROFOR forces around designated safe areas; to use

airpower in the Sarajevo region; and to authorize air strikes against Serb weapons

around certain safe areas if these areas were attacked. The Mitchell amendment

favored lifting the arms embargo but not unilaterally; it also stated no U.S. ground

combat troops should be deployed in Bosnia unless previously authorized by

Congress. The Senate adopted both the Dole proposal, as an amendment, and the

Mitchell amendment on May 12, 1994, by votes of 50-49. The less stringent Mitchell

amendment passed on a straight party line vote. Yet thirteen Democrats voted for the

Dole amendment, indicating a sentiment in both parties to assist the Bosnians in

defending themselves. The Senate then adopted S. 2042 as amended. The House did

not act on the measure.

The Defense Authorization Act for FY1995 (P.L. 103-337, signed October 5,

1994) provided, in Section 1404, the sense of the Congress that if the Bosnian Serbs

did not accept the Contact Group proposal by October 15, 1994, the President should

introduce a U.N. Security Council resolution to end the arms embargo by December

1, 1994; if the Security Council had not acted by November 15, 1994, no funds could

be used to enforce the embargo other than those required of all U.N. members under

Security Council Resolution 713. That sequence of events occurred and the United

States stopped enforcing the embargo. In addition, Section 8100 of the Defense

Appropriations Act, FY1995 (P.L. 103-335, signed September 30, 1994), stated the

sense of the Congress that funds made available by this law should not be available

for the purposes of deploying U.S. armed forces to participate in implementation of

a peace settlement in Bosnia unless previously authorized by Congress.

On May 24, 1995, President Clinton reported “consistent with the War Powers

Resolution” that U.S. combat-equipped fighter aircraft and other aircraft continued

to contribute to NATO’s enforcement of the no-fly zone in airspace over BosniaHerzegovina. U.S. aircraft, he noted, are also available for close air support of U.N.

forces in Croatia. Roughly 500 U.S. soldiers were still deployed in the former

Yugoslav Republic of Macedonia as part of the U.N. Preventive Deployment Force

(UNPREDEP). U.S. forces continue to support U.N. refugee and embargo operations

in this region.

On September 1, 1995, President Clinton reported “consistent with the War

Powers Resolution,” that “U.S. combat and support aircraft” had been used beginning

on August 29, 1995, in a series of NATO air strikes against Bosnian Serb Army

(BSA) forces in Bosnia-Herzegovina that were threatening the U.N.-declared safe

areas of Sarajevo, Tuzla, and Gorazde.” He noted that during the first day of

operations, “some 300 sorties were flown against 23 targets in the vicinity of

Sarajevo, Tuzla, Gorazde, and Mostar.”

On September 7, 1995 the House passed an amendment to the FY1996

Department of Defense Appropriations Bill (H.R. 2126), offered by Representative

Mark Neumann (R-WI.) that prohibited the obligation or expenditure of funds

provided by the bill for any operations beyond those already undertaken. However,

CRS-36

in conference the provision was softened to a sense-of-the-Congress provision that

said that President must consult with Congress before deploying U.S. forces to

Bosnia. The conference report was rejected by the House over issues unrelated to

Bosnia on September 29, 1995 by a vote of 151-267. The substitute conference

report on H.R. 2126, which was subsequently passed and signed into law, did not

include language on Bosnia, in part due to the President’s earlier objections to any

provision in the bill that might impinge on his powers as Commander-in-Chief. On

September 29, the Senate passed by a vote of 94-2 a sense-of-the-Senate amendment

to H.R. 2076, the FY1996 State, Commerce, Justice Appropriations bill, sponsored

by Senator Judd Gregg (R-N.H.) that said no funds in the bill should be used for the

deployment of U.S. combat troops to Bosnia-Herzegovina unless Congress approves

the deployment in advance or to evacuate endangered U.N. peacekeepers. The

conference report on H.R. 2076, agreed to by the House and the Senate, included the

“sense of the Senate” language of the Gregg amendment.

In response to mounting criticism of the Administration’s approach to Bosnian

policy, on October 17-18, 1995, Secretary of State Christopher, Secretary of Defense

Perry and Joint Chiefs of Staff Chairman Shalikashvili testified before House and

Senate Committees on Bosnia policy and the prospect of President Clinton deploying

approximately 20,000 American ground forces as part of a NATO peacekeeping

operation. During testimony before the Senate Foreign Relations Committee on

October 17, Secretary Christopher stated that the President would not be bound by

a resolution of the Congress prohibiting sending of U.S. forces into Bosnia without

the express prior approval of Congress. Nevertheless, on October 19, 1995, President

Clinton in a letter to Senator Robert C. Byrd stated that “[w]hile maintaining the

constitutional authorities of the Presidency, I would welcome, encourage and, at the

appropriate time, request an expression of support by the Congress” for the

commitment of U.S. troops to a NATO implementation force in Bosnia, after a peace

agreement is reached.

Subsequently, on October 30, 1995, the House, by a vote of 315-103, passed

H.Res. 247, expressing the sense of the House that “no United States Armed forces

should be deployed on the ground in the territory of the Republic of Bosnia and

Herzegovina to enforce a peace agreement until the Congress has approved such a

deployment.” On November 13, President Clinton’s 9-page letter to Speaker

Gingrich stated he would send a request “for a congressional expression of support

for U.S. participation in a NATO-led Implementation Force in Bosnia ... before

American forces are deployed in Bosnia.” The President said there would be a

“timely opportunity for Congress to consider and act upon” his request for support.

He added that despite his desire for congressional support, he “must reserve” his

“constitutional prerogatives in this area.” On November 17, 1995, the House passed

(243-171) H.R. 2606, which would “prohibit the use of funds appropriated or

otherwise available” to the Defense Department from “being used for the deployment

on the ground of United States Armed Forces in the Republic of Bosnia-Herzegovina

as part of any peacekeeping operation or as part of any implementation force, unless

funds for such deployment are specifically appropriated” by law.

On December 4, 1995, Secretary of Defense Perry announced the deployment

of about 1,400 U.S. military personnel (700 to Bosnia/700 to Croatia) as part of the

advance elements of the roughly 60,000 person NATO Implementation Force in

CRS-37

Bosnia, scheduled to deploy in force once the Dayton Peace Agreement is signed in

Paris on December 14, 1995. Secretary Perry noted that once the NATO I-Force was

fully deployed, about 20,000 U.S. military personnel would be in Bosnia, and about

5,000 in Croatia.

On December 6, 1995, President Clinton notified the Congress, “consistent with

the War Powers Resolution,” that he had “ordered the deployment of approximately

1,500 U.S. military personnel to Bosnia and Herzegovina and Croatia as part of a

NATO ‘enabling force’ to lay the groundwork for the prompt and safe deployment

of the NATO-led Implementation Force (IFOR),” which would be used to implement

the Bosnian peace agreement after its signing. The President also noted that he had

authorized deployment of roughly 3,000 other U.S. military personnel to Hungary,

Italy, and Croatia to establish infrastructure for the enabling force and the IFOR.

In response to these developments, Congress addressed the question of U.S.

ground troop deployments in Bosnia. Lawmakers sought to take action before the

final Bosnian peace agreement was signed in Paris on December 14, 1995, following

which the bulk of American military forces would be deployed to Bosnia. On

December 13, 1995, the House considered H.R. 2770, sponsored by Representative

Dornan, which would have prohibited the use of Federal funds for the deployment

“on the ground” of U.S. Armed Forces in Bosnia-Herzegovina “as part of any

peacekeeping operation, or as part of any implementation force.” H.R. 2770 was

defeated in the House by a vote of 210-218. On December 13, the House considered

two other measures. It approved H.Res. 302, offered by Representative Buyer, by a

vote of 287-141. H.Res. 302, a non-binding measure, reiterated “serious concerns and

opposition” to the deployment of U.S. ground troops to Bosnia, while expressing

confidence, “pride and admiration” for U.S. soldiers deployed there. It called on the

President and Defense Secretary to rely on the judgement of the U.S. ground

commander in Bosnia and stated that he should be provided with sufficient resources

to ensure the safety and well-being of U.S. troops. H.Res. 302, further stated that the

U.S. government should “in all respects” be “impartial and evenhanded” with all

parties to the Bosnian conflict “as necessary to ensure the safety and protection” of

American forces in the region.

Subsequently, the House defeated H.Res 306, proposed by Representative

Hamilton, by a vote of 190-237. H.Res 306 stated that the House “unequivocally

supports the men and women of the United States Armed Forces who are carrying out

their mission in support of peace in Bosnia and Herzegovina with professional

excellence, dedicated patriotism and exemplary bravery.”

On December 13, the Senate also considered three measures related to Bosnia

and U.S. troop deployments. The Senate defeated H.R. 2606 by a vote of 22-77. This

bill would have prohibited funds to be obligated or expended for U.S. participation

in peacekeeping in Bosnia unless such funds were specifically appropriated for that

purpose. The Senate also defeated S.Con.Res. 35, a non-binding resolution of

Senators Hutchison and Inhofe. This resolution stated that “Congress opposes

President Clinton’s decision to deploy” U.S. troops to Bosnia, but noted that

“Congress strongly supports” the U.S. troops sent by the President to Bosnia.

CRS-38

The Senate did pass S.J.Res. 44, sponsored by Senators Dole and McCain, by

a vote of 69-30. This resolution stated that Congress “unequivocally supports the

men and women of our Armed Forces” who were to be deployed to Bosnia. S.J.Res.

44 stated that “notwithstanding reservations expressed about President Clinton’s

decision” to deploy U.S. forces, “the President may only fulfill his commitment” to

deploy them to Bosnia “for approximately one year” if he made a determination to

Congress that the mission of the NATO peace implementation force (IFOR) will be

limited to implementing the military annex to the Bosnian peace agreement and to

protecting itself. The Presidential determination must also state that the United States

will “lead an immediate international effort,” separate from IFOR, “to provide

equipment, arms, training and related logistics assistance of the highest possible

quality” to the Muslim-Croat Federation so that it may provide for its own defense.

The President could use “existing military drawdown authorities and requesting such

additional authority as may be necessary.” S.J.Res. 44 also required President Clinton

to submit to Congress a detailed report on the armament effort within 30 days, and

required regular Presidential reports to Congress on the implementation of both the

military and non-military aspects of the peace accords.

The House and Senate did not appoint and direct conferees to meet to reconcile

the conflicting elements of the Bosnia related measures each had passed on

December 13, 1995. A number of Members and Senators had wished to express their

views on the troop deployment before the Dayton Accords were formally signed in

Paris. That action had occurred, and the leadership of both parties apparently

believed nothing further would be achieved by a conference on the measures passed.

As result, no final consensus on a single specific measure was reached on the issue

by the two chambers.

The President meanwhile continued with the Bosnian deployment. On

December 21, 1995, President Clinton notified Congress “consistent with the War

Powers Resolution,” that he had ordered the deployment of approximately 20,000

U.S. military personnel to participate in the NATO-led Implementation Force (IFOR)

in the Republic of Bosnia-Herzegovina, and approximately 5,000 U.S. military

personnel would be deployed in other former Yugoslav states, primarily in Croatia.

In addition, about 7,000 U.S. support forces would be deployed to Hungary, Italy,

Croatia, and other regional states in support of IFOR’s mission. The President

ordered participation of U.S. forces “pursuant to” his “constitutional authority to

conduct the foreign relations of the United States and as Commander-in-Chief and

Chief Executive.”67 Subsequently, President Clinton in December 1996, agreed to

provide up to 8,500 ground troops to participate in a NATO-led follow-on force in

Bosnia termed the Stabilization Force (SFOR). On March 18, 1998, the House

defeated by a vote of 193-225, H.Con.Res. 227, a resolution of Representative Tom

Campbell, directing the President, pursuant to section 5(c) of the War Powers

Resolution to remove United States Armed Forces from the Republic of Bosnia and

Herzegovina.(H.Rept. 105-442).68

For additional background see CRS Report RS22324, Bosnia: Overview of Current Issues,

by Julie Kim.

For additional background see CRS Report RL32392, Bosnia and Herzegovina: Issues for

(continued...)

CRS-39

Kosovo. The issue of Presidential authority to deploy forces in the absence of

congressional authorization, under the War Powers Resolution, or otherwise, became

an issue of renewed controversy in late March 1999 when President Clinton ordered

U.S. military forces to participate in a NATO-led military operation in Kosovo. This

action was the focus of a major policy debate over the purpose and scope of U.S.

military involvement in Kosovo. The President’s action to commit forces to the

NATO Kosovo operation also led to a suit in Federal District Court for the District

of Columbia by Members of Congress seeking a judicial finding that the President

was violating the War Powers Resolution and the Constitution by using military

forces in Yugoslavia in the absence of authorization from the Congress.

The Kosovo controversy began in earnest when on March 26, 1999, President

Clinton notified the Congress “consistent with the War Powers Resolution”, that on

March 24, 1999, U.S. military forces, at his direction and in coalition with NATO

allies, had commenced air strikes against Yugoslavia in response to the Yugoslav

government’s campaign of violence and repression against the ethnic Albanian

population in Kosovo. Prior to the President’s action, the Senate, on March 23, 1999,

had passed, by a vote of 58-41, S.Con.Res. 21, a non-binding resolution expressing

the sense of the Congress that the President was authorized to conduct “military air

operations and missile strikes in cooperation with our NATO allies against the

Federal Republic of Yugoslavia (Serbia and Montenegro).”

Subsequently, the House voted on a number of measures relating to U.S.

participation in the NATO operation in Kosovo. On April 28, 1999, the House of

Representatives passed H.R. 1569, by a vote of 249-180. This bill would prohibit the

use of funds appropriated to the Defense Department from being used for the

deployment of “ground elements” of the U.S. Armed Forces in the Federal Republic

of Yugoslavia unless that deployment is specifically authorized by law. On that same

day the House defeated H.Con.Res. 82, by a vote of 139-290. This resolution would

have directed the President, pursuant to section 5(c) of the War Powers Resolution,

to remove U.S. Armed Forces from their positions in connection with the present

operations against the Federal Republic of Yugoslavia. On April 28, 1999, the House

also defeated H.J.Res. 44, by a vote of 2-427. This joint resolution would have

declared a state of war between the United States and the “Government of the Federal

Republic of Yugoslavia.” The House on that same day also defeated, on a 213-213

tie vote, S.Con.Res. 21, the Senate resolution passed on March 23, 1999, that

supported military air operations and missile strikes against Yugoslavia. On April

30, 1999, Representative Tom Campbell and 17 other members of the House filed

suit in Federal District Court for the District of Columbia seeking a ruling requiring

the President to obtain authorization from Congress before continuing the air war, or

taking other military action against Yugoslavia.69

The Senate, on May 4, 1999, by a vote of 78-22, tabled S.J.Res. 20, a joint

resolution, sponsored by Senator John McCain, that would authorize the President

(...continued)

U.S. Policy, by Steven Woehrel, and CRS Report RL32282, Bosnia and Kosovo: U.S.

Military Operations, by Steve Bowman.

Campbell v. Clinton. Civil Action No. 99-1072.

CRS-40

“to use all necessary force and other means, in concert with United States allies, to

accomplish United States and North Atlantic Treaty Organization objectives in the

Federal Republic of Yugoslavia (Serbia and Montenegro).”70 The House, meanwhile,

on May 6, 1999, by a vote of 117-301, defeated an amendment by Representative

Ernest Istook to H.R. 1664, the FY1999 defense supplemental appropriations bill,

that would have prohibited the expenditure of funds in the bill to implement any plan

to use U.S. ground forces to invade Yugoslavia, except in time of war. Congress,

meanwhile, on May 20, 1999 cleared for the President’s signature, H.R. 1141, an

emergency supplemental appropriations bill for FY1999, that provided billions in

funding for the existing U.S. Kosovo operation.

The Senate tabled two other amendments that would have restricted military

operations by President Clinton in Kosovo. On May 24, 1999, it tabled, by a vote of

52-48, an amendment offered by Senator Arlen Specter to state that no funds

available to the Defense Department may be obligated or expended for the

deployment of U.S. ground troops to Yugoslavia unless authorized by a declaration

of war or a joint resolution authorizing the use of military force. The Specter

amendment did not apply to certain actions, such as rescuing U.S. military personnel

or citizens.71 On May 26, 1999 the Senate tabled an amendment, by a vote of 77-21,

offered by Senator Bob Smith to prohibit, effective October 1, 1999, the use of funds

for military operations in Yugoslavia unless Congress enacted specific authorization

in law for the conduct of these operations.72

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

of his actions regarding U.S. participation in military operations in Kosovo.

Representative Campbell, and those who joined his suit, noted to the Federal Court

that this was a clear violation of the language of the War Powers Resolution

stipulating a withdrawal of U.S. forces from the area of hostilities after 60 days in the

absence of congressional authorization to continue, or a Presidential request to

Congress for an extra 30 day period to safely withdraw. The President did not seek

such a 30 day extension, noting instead his view that the War Powers Resolution is

constitutionally defective.

On June 8, 1999, Federal District Judge Paul L. Friedman dismissed the suit of

Representative Campbell and others that sought to have the court rule that President

Clinton was in violation of the War Powers Resolution and the Constitution by

conducting military activities in Yugoslavia without having received prior

authorization from Congress. The judge ruled that Representative Campbell and the

The McCain joint resolution (S.J.Res. 20) authorizing Presidential action in Yugoslavia

was forced to the Senate floor by the Senator’s use of the expedited procedures set out in

section 6 of the War Powers Resolution for consideration of such resolutions. See debate

and discussion in U.S. Congressional Record, Senate, May 3, 1999, pp. S4514-S4572; and

May 4, 1999, pp. S4611-S4616 [daily edition].

U.S. Congressional Record, Senate, May 24, 1999, pp. S5809-S5840 [daily edition].

U.S. Congressional Record, Senate, May 26, 1999, pp. S6034-S6040 [daily edition].

CRS-41

other Congressional plaintiffs lacked legal standing to bring the suit.73 On June 24,

1999, Representative Campbell appealed the ruling to the U.S. Court of Appeals for

the District of Columbia. The appeals court subsequently agreed to hear the case on

an expedited basis before Judges Silberman, Randolph, and Tatel. On February 18,

2000, the appeals court affirmed the opinion of the District Court that Representative

Campbell and his co-plaintiffs lacked standing to sue the President.74 On May 18,

2000, Representative Campbell and 30 other Members of Congress appealed this

decision to the United States Supreme Court. On October 2, 2000, the United States

Supreme Court, without comment, refused to hear the appeal of Representative

Campbell, thereby letting stand the holding of the U.S. Court of Appeals.75

While Representative Campbell’s litigation was continuing, Yugoslavia, on

June 10, 1999, agreed to NATO conditions for a cease-fire and withdrawal of

Yugoslav military and paramilitary personnel from Kosovo, and the creation of a

peacekeeping force (KFOR) which had the sanction of the United Nations. Further,

on June 10, 1999, the House of Representatives defeated, by a vote of 328-97, an

amendment to H.R. 1401, the National Defense Authorization Act for FY2000FY2001, that would have prohibited the use of any Defense Department funding in

FY2000 for “military operations in the Federal Republic of Yugoslavia.” On that

same day, the House approved, by a vote of 270-155, an amendment that deleted,

from the House reported version of H.R. 1401, language that would have prohibited

any funding for “combat or peacekeeping operations” in the Federal Republic of

Yugoslavia.

On June 12, 1999, President Clinton announced and reported to Congress

“consistent with the War Powers Resolution” that he had directed the deployment of

about “7,000 U.S. military personnel as the U.S. contribution to the approximately

50,000-member, NATO-led security force (KFOR)” currently being assembled in

Kosovo. He also noted that about “1,500 U.S. military personnel, under separate

U.S. command and control, will deploy to other countries in the region, as our

national support element, in support of KFOR.” Thus, by the summer of 1999, the

President had been able to proceed with his policy of intervention in the Kosovo

crisis under the aegis of NATO, the Congress had not achieved any position of

consensus on what actions were appropriate in Yugoslavia, and a U.S. District Court

had dismissed a congressional lawsuit (a position subsequently affirmed the

following year by the Appeals Court, and the U.S. Supreme Court) attempting to stop

Presidential military action in Yugoslavia in the absence of prior congressional

authorization under the War Powers Resolution.76

Seethe June 8, 1999 decision of Judge Friedman of the U.S. District Court for the District

of Columbia at 52 F. Supp. 2d 34 (1999).

Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

Campbell v. Clinton, cert. denied, 531 U.S.815 October 2, 2000).

For detailed discussion of major issues see CRS Report RL31053, Kosovo and U.S.

Policy: Background and Current Issues, by Julie Kim and Steven J. Woehrel, and CRS

Report RL30352, War Powers Litigation Since the Enactment of the War Powers

Resolution, by David M. Ackerman.

CRS-42

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

Embargo?

On July 3, 1993, Haitian military leader Raoul Cedras and deposed President

Jean-Bertrand Aristide signed an agreement providing for the restoration of President

Aristide on October 30. The United Nations and Organization of American States

took responsibility for verifying compliance. In conjunction with the agreement,

President Clinton offered to send 350 troops and military engineers to Haiti to help

retrain the Haitian armed forces and work on construction projects. A first group of

American and Canadian troops arrived on October 6. When additional U.S. forces

arrived on October 11, a group of armed civilians appeared intent upon resisting their

landing, and on October 12 defense officials ordered the ship carrying them, the

U.S.S. Harlan County, to leave Haitian waters.

Because the Haitian authorities were not complying with the agreement, on

October 13 the U.N. Security Council voted to restore sanctions against Haiti. On

October 20, President Clinton reported “consistent with the War Powers Resolution”

that U.S. ships had begun to enforce the U.N. embargo. Some Members of Congress

complained that Congress had not been consulted on or authorized the action. On

October 18, Senator Dole said he would offer an amendment to the Defense

Appropriations bill (H.R. 3116) which would require congressional authorization for

all deployments into Haitian waters and airspace unless the President made specified

certifications. Congressional leaders and Administration officials negotiated on the

terms of the amendment. As enacted, section 8147 of P.L. 103-139 stated the sense

of Congress that funds should not be obligated or expended for U.S. military

operations in Haiti unless the operations were (1) authorized in advance by Congress,

(2) necessary to protect or evacuate U.S. citizens, (3) vital to the national security of

the United States and there was not sufficient time to receive congressional

authorization, or (4) the President reported in advance that the intended deployment

met certain criteria.

Enforcement of the embargo intensified. On April 20, 1994, President Clinton

further reported “consistent with the War Powers Resolution” that U.S. naval forces

had continued enforcement in the waters around Haiti and that 712 vessels had been

boarded. On May 6, 1994, the U.N. Security Council adopted Resolution 917 calling

for measures to tighten the embargo. On June 10, 1994, President Clinton announced

steps being taken to intensify the pressure on Haiti’s military leaders that included

assisting the Dominican Republic to seal its border with Haiti, using U.S. naval

patrol boats to detain ships suspected of violating the sanctions, a ban on commercial

air traffic, and sanctions on financial transactions.

As conditions in Haiti worsened, President Clinton stated he would not rule out

the use of force, and gradually this option appeared more certain. Many Members

continued to contend congressional authorization was necessary for any invasion of

Haiti. On May 24, 1994, the House adopted the Goss amendment to the Defense

Authorization bill (H.R. 4301) by a vote of 223-201. The amendment expressed the

sense of Congress that the United States should not undertake any military action

against the mainland of Haiti unless the President first certified to Congress that clear

and present danger to U.S. citizens or interests required such action. Subsequently,

CRS-43

on June 9 the House voted on the Goss amendment again. This time the House

reversed itself and rejected the amendment by a vote of 195-226. On June 27, a point

of order was sustained against an amendment to the State Department appropriations

bill that sought to prohibit use of funds for any U.N. peacekeeping operation related

to Haiti. On June 29, 1994, the Senate in action on H.R. 4226 repassed a provision

identical to Section 8147 of P.L. 103-139 but rejected a measure making advance

congressional authorization a binding requirement. On August 5 it tabled (rejected)

by a vote of 31 to 63 an amendment to H.R. 4606 by Senator Specter prohibiting the

President from using U.S. armed forces to depose the military leadership unless

authorized in advance by Congress, necessary to protect U.S. citizens, or vital to U.S.

interests.

President Clinton sought and obtained U.N. Security Council authorization for

an invasion. On July 31, the U.N. Security Council authorized a multinational force

to use “all necessary means to facilitate the departure from Haiti of the military

leadership ... on the understanding that the cost of implementing this temporary

operation will be borne by the participating Member States” (Resolution 940, 1994).

On August 3, the Senate adopted an amendment to the Department of Veterans

Affairs appropriation, H.R. 4624, by a vote of 100-0 expressing its sense that the

Security Council Resolution did not constitute authorization for the deployment of

U.S. forces in Haiti under the Constitution or the War Powers Resolution. The

amendment, however, was rejected in conference. President Clinton said the same

day that he would welcome the support of Congress but did not agree that he was

constitutionally mandated to obtain it. Some Members introduced resolutions, such

as H.Con.Res. 276, calling for congressional authorization prior to the invasion.

On September 15, 1994, in an address to the Nation, President Clinton said he

had called up the military reserve and ordered two aircraft carriers into the region.

His message to the military dictators was to leave now or the United States would

force them from power. The first phase of military action would remove the dictators

from power and restore Haiti’s democratically elected government. The second

phase would involve a much smaller force joining with forces from other U.N.

members which would leave Haiti after 1995 elections were held and a new

government installed.

While the Defense Department continued to prepare for an invasion within days,

on September 16 President Clinton sent to Haiti a negotiating team of former

President Jimmy Carter, former Joint Chiefs of Staff Chairman Colin Powell, and

Senate Armed Services Committee Chairman Sam Nunn. Again addressing the

Nation on September 18, President Clinton announced that the military leaders had

agreed to step down by October 15, and agreed to the immediate introduction of

troops, beginning September 19, from the 15,000 member international coalition. He

said the agreement was only possible because of the credible and imminent threat of

multinational force. He emphasized the mission still had risks and there remained

possibilities of violence directed at U.S. troops, but the agreement minimized those

risks. He also said that under U.N. Security Council resolution 940, a 25-nation

international coalition would soon go to Haiti to begin the task of restoring

democratic government. Also on September 18, President Clinton reported to

CRS-44

Congress on the objectives in accordance with the sense expressed in Section 8147

U.S. forces entered Haiti on September 1994. On September 21, President

Clinton reported “consistent with the War Powers Resolution” the deployment of

1,500 troops, to be increased by several thousand. (At the peak in September there

were about 21,000 U.S. forces in Haiti.) He said the U.S. presence would not be

open-ended but would be replaced after a period of months by a U.N. peacekeeping

force, although some U.S. forces would participate in and be present for the duration

of the U.N. mission. The forces were involved in the first hostilities on September

24 when U.S. Marines killed 10 armed Haitian resisters in a fire-fight.

On September 19, the House agreed to H.Con.Res. 290 commending the

President and the special delegation to Haiti, and supporting the prompt and orderly

withdrawal of U.S. forces from Haiti as soon as possible; on September 19, the

Senate agreed to a similar measure, S.Res. 259. On October 3, 1994, the House

Foreign Affairs Committee reported H.J.Res. 416 authorizing the forces in Haiti until

March 1, 1995, and providing procedures for a joint resolution to withdraw the

forces. In House debate on October 6 the House voted against the original contents

and for the Dellums substitute. As passed, H.J.Res. 416 stated the sense that the

President should have sought congressional approval before deploying U.S. forces

to Haiti, supporting a prompt and orderly withdrawal as soon as possible, and

requiring a monthly report on Haiti as well as other reports. This same language was

also adopted by the Senate on October 6 as S.J.Res. 229, and on October 7 the House

passed S.J.Res. 229. President Clinton signed S.J.Res. 229 on October 25, 1994

(P.L. 103-423).

After U.S. forces began to disarm Haitian military and paramilitary forces and

President Aristide returned on October 15, 1994, the United States began to withdraw

some forces. On March 31, 1995, U.N. peacekeeping forces assumed responsibility

for missions previously conducted by U.S. military forces in Haiti. By September 21,

1995, President Clinton reported the United States had 2,400 military personnel in

Haiti as participants in the U.N. Mission in Haiti (UNMIH), and 260 U.S. military

personnel assigned to the U.S. Support Group Haiti. On February 29, 1996, the U.S.

Commander of the UNMIH was replaced and U.S. forces ceased to conduct security

operations in Haiti, except for self defense. The majority of the 1,907 U.S. military

personnel in Haiti were withdrawn by mid-March 1996, and the remainder, who

stayed to arrange the dismantlement and repatriation of equipment, were withdrawn

in mid-April 1996. After that, a U.S. support unit of 300 to 500 troops, made up

primarily of engineers, remained in Haiti carrying out public works such as building

bridges, repairing schools, and digging wells. In December 1997, President Clinton

ordered the Dept. of Defense to maintain hundreds of U.S. troops in Haiti

indefinitely. In September 1999, however, the 106th Congress passed the FY2000

DOD authorization bill (P.L. 106-65) that prohibited DOD funding to maintain a

continuous U.S. military presence in Haiti beyond May 31, 2000. The troops were

withdrawn by the end of January 2000. According to the conference report

CRS-45

accompanying the FY2000 DOD authorization bill (H.Rept. 106-301), the President

is not prohibited from engaging in periodic theater engagement activities in Haiti.77

Terrorist Attacks against the United States (World Trade

Center and the Pentagon) 2001: How Does the War Powers

Resolution Apply?

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 more

than three thousand, making the attacks the most devastating of their kind in United

States history. 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.”78

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 with

the White House and congressional leaders was the concept of a joint resolution of

the 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.79

For further information on Haiti, see Haiti: Issues for Congress, CRS

Report RL32294.

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

See White House website at [http://whitehouse.gov/news/releases].

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. The debate on S.

J. Res. 23 is found in U.S. Congress. Congressional Record, 107th Congress, 1st session,

pp.S9416-S9421 (Senate); H5638-H5683 [daily edition].

CRS-46

Senate Joint Resolution 23, titled the “Authorization for Use of Military Force,”

passed by Congress on September 14, 2001, was signed into law on September 18,

2001.80 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.

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 supercedes any requirement of the War Powers

Resolution.”

A notable feature of S.J.Res. 23 is that unlike all other major legislation

authorizing the use of military force by the President, this joint resolution authorizes

military force against “organizations and persons” linked to the September 11, 2001

attacks on the United States. Past authorizations of the use of force have permitted

action against unnamed nations in specific regions of the world or against named

individual nations. This authorization of military action against “organizations or

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.81

President George W. Bush in signing S.J.Res. on September 18, 2001, noted 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: “In signing this

resolution, I maintain the longstanding position of the executive branch regarding the

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

For detailed legislative history of P.L. 107-40 see CRS Report RS22357, Authorization

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

History, by Richard F. Grimmett.

CRS-47

President’s constitutional authority to use force, including the Armed Forces of the

United States and regarding the constitutionality of the War Powers Resolution.”82

Prior to its enactment, there was concern among some in Congress that the

President might not adhere to the reporting requirements of the War Powers

Resolution when he exercised the authority provided in S.J.Res. 23. There appeared

to be general agreement that the President had committed himself to consult with the

Congress on matters related to his military actions against terrorists and those

associated with the attacks on the United States on September 11. On September 24,

2001, President Bush reported to Congress, “consistent with the War Powers

Resolution,” and “Senate Joint Resolution 23” that in response to terrorist attacks on

the World Trade Center and the Pentagon he had ordered the “deployment of various

combat-equipped and combat support forces to a number of foreign nations in the

Central and Pacific Command areas of operations.” The President noted that as part

of efforts to “prevent and deter terrorism” he might find it necessary to order

additional forces into these and other areas of the world....” He stated that he could

not now predict “the scope and duration of these deployments,” nor the “actions

necessary to counter the terrorist threat to the United States.”

Subsequently, on October 9, 2001, President George W. Bush reported to

Congress, “consistent with the War Powers Resolution,” and “Senate Joint

Resolution 23” that on October 7, 2001, U.S. Armed Forces “began combat action

in Afghanistan against Al Qaida terrorists and their Taliban supporters.” The

President stated that he had directed this military action in response to the September

11, 2001 attacks on U.S. “territory, our citizens, and our way of life, and to the

continuing threat of terrorist acts against the United States and our friends and allies.”

This military action was “part of our campaign against terrorism” and was “designed

to disrupt the use of Afghanistan as a terrorist base of operations.”

Thus, in light of the September 11, 2001 terrorist attacks against United States

territory and citizens, the President and the Congress, after consultations, agreed to

a course of legislative action that did not invoke the War Powers Resolution itself,

but substituted a specific authorization measure, S.J.Res. 23. Pursuit of such an

action is contemplated by the language of the War Powers Resolution itself. As of

the end of October 2001, President Bush had chosen to state in his reports to

Congress that the military actions he had taken relating to the terrorists attacks were

“consistent with” both the War Powers Resolution and Senate Joint Resolution 23.

His actions follow the practice of his White House predecessors in not formally citing

the language of the War Powers Resolution in section 4(a)(1) that would trigger a

military forces withdrawal timetable. Congress for its part in S. J. Res. 23 stated that

this legislation constituted “specific statutory authorization within the meaning of

section 5(b) of the War Powers Resolution.” It also noted that “nothing” in S.J.Res.

23 “supercedes any requirement of the War Powers Resolution.” The President and

the Congress, in sum, maintained their respective positions on the constitutionality

of the War Powers Resolution and the responsibilities of the President under it, while

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. See

White House website at [http://whitehouse.gov/news/releases].

CRS-48

finding a legislative vehicle around which both branches could unite to support the

President’s response to the terrorist attacks on the United States.

Use of Force Against Iraq Resolution 2002: A Classic

Application of the War Powers Resolution?

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 obliga

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