The War Powers Resolution: Presidential Authority to Deploy US Armed Forces, Lecture notes of International relations

Download The War Powers Resolution: Presidential Authority to Deploy US Armed Forces and more Lecture notes International relations in PDF only on Docsity! Overview of the War Powers Resolution Summary of previous Office o f Legal Counsel advice concerning the W ar Powers Resolution for the purpose o f providing guidance in future analyses of War Powers Resolution problems. October 30, 1984 M e m o r a n d u m O p in i o n f o r t h e A t t o r n e y G e n e r a l On a number of occasions during this Administration, this Office has pro­ vided both written and oral legal advice to you, the Deputy Attorney General, the Counsel to the President and the National Security Council regarding the War Powers Resolution (WPR). This advice has been rendered in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances. We have summarized the highlights of that advice and outlined certain historical information in this memorandum in order to provide guidance to you and to our respective succes­ sors in future analyses of War Powers Resolution problems. I. The War Powers Resolution: Summary of Provisions A. Stated Constitutional Basis The War Powers Resolution became effective on November 7, 1973 after Congress overrode President Nixon’s veto of the Resolution.1 It is codified at 50 U.S.C. §§ 1541-1548. Section 1 of the WPR sets out the name of the enactment; § 2 of the WPR states its purpose and the constitutional authorities upon which it is predicated. Its purpose is said “to fulfill the intent of the framers of the Constitution” to 1 President Nixon vetoed the W ar Powers Resolution on October 24, 1973. His veto message declared that the automatic 60 day termination provision, § 5(b), and legislative veto provision, § 5(c), were unconstitu­ tional. The veto was overridden on November 7 by a four vote margin in the House and by a substantial margin in the Senate. Senator Javits, one o f the pnncipal sponsors o f the WPR, had hoped to avoid a veto. He felt that a W PR which was enacted with the approval o f the President would constitute a “com pact" between Congress and the President. Holt, The War Powers Resolution: The Role o f Congress in U.S. Arm ed Intervention 1-2 (1978). 271 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 in­ volvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. Id. Section 2(b) invokes the Necessary and Proper Clause of the Constitution. Section 2(c) declares that the President’s constitutional powers as Commander- in-Chief with respect to the introduction of United States Armed Forces into hostilities or situations in which hostilities are clearly indicated “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.” B. Consultation Section 3 of the WPR calls for consultation “with Congress” “in every possible instance . . . before introducing United States Armed Forces” into hostile situations and “regularly” thereafter until hostilities cease or those forces have been removed. C. Reporting under the WPR Section 4(a) of the WPR calls for a report to be filed with Congress within 48 hours in any case in which troops are introduced (1) into hostilities or into situations where imminent involve­ ment in hostilities is clearly indicated by the circumstances; (2) into the territory, air space or waters of a foreign nation, while equipped for com bat. . . ; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation. . . . Section 4(a) provides that the report must set forth: (A) the circumstances necessitating the introduction o f United States Armed Forces; (B) the constitu­ tional and legislative authority under which the forces have been introduced; and (C) the estimated scope and duration of the deployment. Section 4(c) requires the President to report to Congress no less often than every six months, as long as the forces remain in the situation giving rise to the report. Under § 5(a), the report required by § 4(a)(1) (deployment into hostilities or situations where imminent involvement in hostilities is clearly indicated) must be transmitted to the Speaker o f the House and the President pro tempore of the Senate and to the House Committee on Foreign Affairs and the Senate Com­ mittee on Foreign Relations. 272 Hearings on War Powers: A Test o f Compliance, Before the House Comm, on International Relations, 94th Cong., 1st. Sess. (Part VI) 90 (1975). The Legal Adviser went on to state that the Administration did “not believe that any single definitional statement can clearly encompass every conceivable situation in which the President’s Commander-in-Chief authority could be exercised.” Id. at 90-91. The President’s authority to deploy armed forces has been exercised in a broad range of circumstances during our history; 192 such exercises between 1798 and 1971 are documented in Emerson, War Powers Legislation, 74 W. Va. L. Rev. 53, 70 (1971). B. Hostilities The House Report on the WPR had used the word “hostilities” rather than “armed combat” because the former was considered broader. The term “hostili­ ties” was said to encompass “a clear and present danger of armed conflict.”6 The Ford Administration took the position that “hostilities” meant a situation in which units of our armed forces are “actively engaged in exchanges of fire.” It added that a situation involving “imminent hostilities” meant a situation in which there is a “serious risk” from hostile fire to the safety of United States Armed Forces. “In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area.”7 C. Consultation After virtually every WPR incident, Members of Congress have complained about the level, extent or timeliness of whatever consultation actually occurred. Congress has repeatedly insisted that it have “real involvement in [the] decisionmaking.”8 In light of Chadha, there may be some significant constitu­ tional question regarding how there can be “real involvement” of Congress, as an institution, in such typically fast-breaking decisionmaking without formal legislative action by both Houses and submission to the President. Notwith­ standing this constitutional question, Members of Congress have generally been unsatisfied if the “consultation” has not occurred prior to the decisionmaking, has not included participation by the President himself as well as his staff, or because a perceived insubstantial number of Members have been involved in the consultations. Based upon the reactions by Members of Congress to the “Mayaguez” consultations by President Ford, it seems likely that virtually any level or degree of consultation will leave some Members unsatisfied. After the hostage 6 H.R. Rep No. 2 8 7 ,93d Cong., 1st. Sess. 7 (1973). 7 Hearings on W ar Powers: A Test o f Compliance, before the House Comm, on International Relations, 94th Cong., 1st Sess. 39(1975). 8 The War Powers Resolution: A Special Study o f the Committee on Foreign Affairs 2 11 (House Comm, on Foreign Affairs 1982) (Foreign Affairs Special Study). 275 rescue mission in Iran, the Senate Committee on Foreign Relations asserted that “consultation” involves “permitting Congress to participate in the decisionmaking,” and that the judgment about whether consultation is required in a particular situation “must be made jointly by the President and Congress.”9 D. Reporting Requirement Early in this Administration, the Legal Adviser of the Department of State took the position that the reporting requirement of § 4(c), which calls for periodic reports “so long as such armed forces continue to be engaged in such hostilities or situation,” applies only to instances in which a deployment falls within the § 4(a)(1) category of report (actual or imminent hostilities). The rationale was that the word “situations” in § 4(a)(1) refers to “situations” where “imminent involvement in hostilities is clearly indicated by the circumstances.” Thus, the Legal Adviser contended that “situations” did not include § 4(a)(2) or § 4(a)(3) circumstances and that the latter conditions did not require a report. This Office disagreed for the following reasons: (1) The Executive has never taken the view that the reporting provisions present a constitutional issue and therefore there is no legal need to construe them narrowly to avoid a constitutional issue. (2) Congress could have specifically limited the requirement to § 4(a)(1) instead of § 4(a). It did so elsewhere in the WPR. The word “situations” is not in itself a limiting one or a term of art. (3) The language in the final version of § 4(c) of the WPR appeared for the first time in the Conference Report. The Senate bill is clearly limited in its reporting requirement to “hostile” situations. S. 440, accompanying S. Rep. No. 220, 93d Cong., 1st Sess. (1973). Thus, the Senate bill cannot be said to deter­ mine the meaning of the Conference version, which does not have such a limit in § 4(c). The debates on the Conference Report in the Senate and House suggest nothing about the con­ struction of § 4(c), as applied here. 119 Cong. Rec. 33547 et seq.; id. at 33858 et seq. The best support for the Department of State’s position is a sentence in the Conference Report which states that § 4 “requires supplementary reports at 9 One aspect o f the W PR ’s “consultation” provision worthy o f note here is that, because it does not absolutely require consultation in advance o f deployment in all cases (rather it requires consultation only “ in every possible instance”), the consultation provision does not technically prevent the President from deploy­ ing U nited States Armed Forces for any p eriod of time. Thus, the consultation provision does not go as far as § 1005 o f H.R. 5119, considered during the 98th Congress, which, if enacted, would have purported to prevent the President from deploying arm ed forces in connection with jo in t military exercises in Central Am erica until a 30 -day “waiting" period had passed after the intent to make such a deployment had been com m unicated to Congress. 276 least every six months so long as those forces are engaged.” The use of the word “engaged” could be interpreted to mean active engagement rather than deployments such as the deployment of the Sinai force. H.R. Rep. No. 547,93d Cong., 1st Sess. 8 (1973). By itself, this single phrase in the conference report does not seem to overcome the relatively clear text of § 4(c). On balance, it seemed to serve no important purpose not to provide Congress with periodic updates regarding the status of troop deployments which have been reported under § 4. Finally, taking the position that periodic reports were required only with respect to § 4(a)(1) situations would, with respect to deploy­ ments greater than six months duration, require the Executive to take a position as to whether any given circumstance fell within § 4(a)(1) or § 4(a)(2). This Administration, like its predecessors, has believed it to be important not to have to be forced to take such a position with respect to any particular deployment of United States Armed Forces. This Administration determined to file periodic reports under § 4(c) in all situations. This practice has generally been followed. E. Rescue Operations According to a special study issued by the House Committee on Foreign Affairs, the majority of Members of Congress after the “Mayaguez” incident supported the concept that the President had constitutional authority to use armed forces for a rescue operation of the type involved in that incident. Foreign Affairs Special Study at 216. A staff memorandum to the Chairman of the House Committee on Foreign Affairs even cited historical examples of United States Armed Forces being used to protect American merchant ships and to punish those who interfered with United States shipping. One example cited was President Grant’s decision to send elements of the United States Navy to Korea to punish natives for murdering the crew of the American schooner “General Sherman” and burning the ship. Id.10 In 1980, we concluded that the President had constitutional authority to send a military expedition to rescue the hostages held in Iran or to retaliate against Iran if the hostages were harmed. “Presidential Power to Use the Armed Forces Abroad Without Statutory Autho­ rization,” 4A Op. O.L.C. 185 (1980). F. Justiciability During this Administration, two attempts to secure judicial resolution of the applicability of the WPR have been made by private litigants and have been rejected by the courts as presenting nonjusticiable issues. See Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), a ffd , 720 F.2d 1355 (D.C. Cir. 10In D urand v. H ollins , 8 F. Cas. 111 (C.C.S.D.N.Y. I860) (No. 186), the court upheld the legality o f the Executive’s decision to order the bombardment of a Nicaraguan town which had refused to pay reparations for an attack by a mob on the United States Consul. 277 § 5(b) had been triggered by those events became academic, however, because Congress moved to consider and enact a resolution specifically authorizing the retention of United States Armed Forces in Lebanon. On September 26, 1983, the Senate Committee on Foreign Relations re­ ported out a “compromise,” S.J. Res. 159, which had been negotiated with Congress by representatives of the President. On September 27, 1983, the President signed letters to a number of key congressional leaders expressing his intention “to seek Congressional authorization . . . if circumstances require any substantial expansion in the number or role of United States Armed Forces in Lebanon.” On October 19, 1983 the President signed S.J. Res. 159 into law and, in doing so, issued a signing statement which carefully reserved judgment on the several constitutional issues raised by SJ. Res. 159. E. Chad On August 8, 1983, the President transmitted a report, consistent with the WPR, to the Speaker and President pro tempore in which he reported the introduction into Chad, at the request of that country’s government, of various warning and fighter aircraft, accompanied by air and ground logistical support forces. F. Grenada On October 25, 1983, the President transmitted to the Speaker and President pro tempore a report, consistent with the WPR, detailing the deployment to Grenada and surrounding waters of United States Armed Forces. G. Persian G ulf In early June of 1984, two Iranian F-4’s penetrated a “hot line” established by the Government of Saudi Arabia in the Persian Gulf. The Iranian aircraft were intercepted and shot down by Saudi F-15s inside the “hot line” but outside Saudi territorial waters. The Saudi F-15s were assisted as to target location and refueling by aircraft operated by United States Armed Forces which were at all relevant times flying in Saudi territorial air space on predetermined courses. A Saudi air controller provided the actual targeting information to the Saudi F-15s. It was determined subsequently that this one-time, unanticipated incident did not trigger the WPR because of the absence of hostilities. T h e o d o r e B . O l s o n Assistant Attorney General Office o f Legal Counsel 280 APPENDIX POTENTIAL INVOCATIONS OF THE WAR POWERS RESOLUTION War Powers Report Filed/Not Filed Incident Evacuation of Cyprus (military evacuation of Americans caught in hostilities) Cambodia Resupply Missions (airdrops) Cambodian Reconnaissance Flights (isolated unanticipated firing) Danang Sealift Phnom Penh evacuation Date Nixon Administration July 21-23, 1974 Summer 1974 Ford Administration Fall 1974 April 4, 1975 April 12, 1975 Report No report filed No report filed No report filed Pursuant to § 4(a)(2)12 Pursuant to § 4 (The report said “taking note of § 4” without specifying a subsection.) 12 This was the first report ever filed under the WPR. The text o f the report stated that President Ford was sending it “in accordance with my desire to keep Congress fully informed on the matter” and “ taking note o f ’ the provisions of the W PR It did not concede the validity, or accept the authority, of the WPR. 281 Incident Date Report Saigon evacuation (a major military operation with hostile fire and casualties) April 30, 1975 Pursuant to § 413 (The message stated that the “operation was ordered and conducted pursuant to the President’s constitutional executive power and his authority as Commander-in-Chief of the U.S. Armed Forces.”) Mayaguez (Cambodian Communist forces seize American merchant ship — U.S. forces sent on rescue mission; 18 American troops killed or missing and 500 presumed dead) Lebanon Evacuation (Navy used to evacuate Americans from Lebanon) Korean Tree Cutting Incident (troops sent into DMZ to cut tree as retaliation for incident 3 days earlier in which American troops had been killed and wounded) May 12-16, 1975 June/July 1976 August 21, 1976 Report filed in accordance with the President’s “desire that Congress be informed on this matter” and taking note of § 4(a)(1) of the WPR. No report filed14 No report filed15 13 The Legal A dviser o f the Department o f State later conceded in testimony that this was a § 4(a)(1) situation, but because the operation was over by the time the report was filed, no specification was necessary. See H earing, supra, at 9 -10 . 14 C ongress seem s to have implicitly conceded that the W PR did not require a report or consultation in this incident. 15 Some M em bers o f Congress reacted w ith antagonism to the Department o f State’s position that no report o r consultation was required in this incident, but the controversy subsided almost immediately. 282