War Powers Resolution Joint Resolution Concerning the War Powers of Congress and the President. Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, SHORT TITLE SECTION 1. This joint resolution may be cited as the "War Powers Resolution". PURPOSE AND POLICY SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement 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. (b) Under article I, section 8, of the Constitution, it is specifically provided that the 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, or in any department or officer thereof. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, 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 SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. REPORTING SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced-(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth-(A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. (b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad (c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months. CONGRESSIONAL ACTION SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section. (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution. CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays. (b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period. CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays. (b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. INTERPRETATION OF JOINT RESOLUTION SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred-(1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. (b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization 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. (c) For purposes of this joint resolution, the term "introduction of United States Armed Forces" includes the assignment of member of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. (d) Nothing in this joint resolution-- (1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. SEPARABILITY CLAUSE SEC. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby. EFFECTIVE DATE SEC. 10. This joint resolution shall take effect on the date of its enactment. CARL ALBERT Speaker of the House of Representatives. JAMES O. EASTLAND President of the Senate pro tempore. IN THE HOUSE OF REPRESENTATIVES, U.S., November 7, 1973. The House of Representatives having proceeded to reconsider the resolution (H. J. Res 542) entitled "Joint resolution concerning the war powers of Congress and the President", returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was Resolved, That the said resolution pass, two-thirds of the House of Representatives agreeing to pass the same. Attest: W. PAT JENNINGS Clerk. I certify that this Joint Resolution originated in the House of Representatives. W. PAT JENNINGS Clerk. IN THE SENATE OF THE UNITED STATES November 7, 1973 The Senate having proceeded to reconsider the joint resolution (H. J. Res. 542) entitled "Joint resolution concerning the war powers of Congress and the President", returned by the President of the United States with his objections to the House of Representatives, in which it originate, it was Resolved, That the said joint resolution pass, two-thirds of the Senators present having voted in the affirmative. Attest: FRANCIS R. VALEO Secretary. Richard Nixon Veto of the War Powers Resolution October 24, 1973 To the House of Representatives: I hereby return without my approval House Joint Resolution 542--the War Powers Resolution. While I am in accord with the desire of the Congress to assert its proper role in the conduct of our foreign affairs, the restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of our Nation. The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches. The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances. They recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures. These principles remain as valid today as they were when our Constitution was written. Yet House Joint Resolution 542 would violate those principles by defining the President's powers in ways which would strictly limit his constitutional authority. CLEARLY UNCONSTITUTIONAL House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution--an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation. I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution--and any attempt to make such alterations by legislation alone is clearly without force. UNDERMINING OUR FOREIGN POLICY While I firmly believe that a veto of House Joint Resolution 542 is warranted solely on constitutional grounds, I am also deeply disturbed by the practical consequences of this resolution. For it would seriously undermine this Nation's ability to act decisively and convincingly in times of international crisis. As a result, the confidence of our allies in our ability to assist them could be diminished and the respect of our adversaries for our deterrent posture could decline. A permanent and substantial element of unpredictability would be injected into the world's assessment of American behavior, further increasing the likelihood of miscalculation and war. If this resolution had been in operation, America's effective response to a variety of challenges in recent years would have been vastly complicated or even made impossible. We may well have been unable to respond in the way we did during the Berlin crisis of 1961, the Cuban missile crisis of 1962, the Congo rescue operation in 1964, and the Jordanian crisis of 1970--to mention just a few examples. In addition, our recent actions to bring about a peaceful settlement of the hostilities in the Middle East would have been seriously impaired if this resolution had been in force. While all the specific consequences of House Joint Resolution 542 cannot yet be predicted, it is clear that it would undercut the ability of the United States to act as an effective influence for peace. For example, the provision automatically cutting off certain authorities after 60 days unless they are extended by the Congress could work to prolong or intensify a crisis. Until the Congress suspended the deadline, there would be at least a chance of United States withdrawal and an adversary would be tempted therefore to postpone serious negotiations until the 60 days were up. Only after the Congress acted would there be a strong incentive for an adversary to negotiate. In addition, the very existence of a deadline could lead to an escalation of hostilities in order to achieve certain objectives before the 60 days expired. The measure would jeopardize our role as a force for peace in other ways as well. It would, for example, strike from the President's hand a wide range of important peace-keeping tools by eliminating his ability to exercise quiet diplomacy backed by subtle shifts in our military deployments. It would also cast into doubt authorities which Presidents have used to undertake certain humanitarian relief missions in conflict areas, to protect fishing boats from seizure, to deal with ship or aircraft hijackings, and to respond to threats of attack. Not the least of the adverse consequences of this resolution would be the prohibition contained in section 8 against fulfilling our obligations under the NATO treaty as ratified by the Senate. Finally, since the bill is somewhat vague as to when the 60 day rule would apply, it could lead to extreme confusion and dangerous disagreements concerning the prerogatives of the two branches, seriously damaging our ability to respond to international crises. FAILURE TO REQUIRE POSITIVE CONGRESSIONAL ACTION I am particularly disturbed by the fact that certain of the President's constitutional powers as Commander in Chief of the Armed Forces would terminate automatically under this resolution. 60 days after they were invoked. No overt Congressional action would be required to cut off these powers--they would disappear automatically unless the Congress extended them. In effect, the Congress is here attempting to increase its policy-making role through a provision which requires it to take absolutely no action at all. In my view, the proper way for the Congress to make known its will on such foreign policy questions is through a positive action, with full debate on the merits of the issue and with each member taking the responsibility of casting a yes or no vote after considering those merits. The authorization and appropriations process represents one of the ways in which such influence can be exercised. I do not, however, believe that the Congress can responsibly contribute its considered, collective judgment on such grave questions without full debate and without a yes or no vote. Yet this is precisely what the joint resolution would allow. It would give every future Congress the ability to handcuff every future President merely by doing nothing and sitting still. In my view, one cannot become a responsible partner unless one is prepared to take responsible action. STRENGTHENING COOPERATION BETWEEN THE CONGRESS AND THE EXECUTIVE BRANCHES The responsible and effective exercise of the war powers requires the fullest cooperation between the Congress and the Executive and the prudent fulfillment by each branch of its constitutional responsibilities. House Joint Resolution 542 includes certain constructive measures which would foster this process by enhancing the flow of information from the executive branch to the Congress. Section 3, for example, calls for consultations with the Congress before and during the involvement of the United States forces in hostilities abroad. This provision is consistent with the desire of this Administration for regularized consultations with the Congress in an even wider range of circumstances. I believe that full and cooperative participation in foreign policy matters by both the executive and the legislative branches could be enhanced by a careful and dispassionate study of their constitutional roles. Helpful proposals for such a study have already been made in the Congress. I would welcome the establishment of a non-partisan commission on the constitutional roles of the Congress and the President in the conduct of foreign affairs. This commission could make a thorough review of the principal constitutional issues in Executive-Congressional relations, including the war powers, the international agreement powers, and the question of Executive privilege, and then submit its recommendations to the President and the Congress. The members of such a commission could be drawn from both parties--and could represent many perspectives including those of the Congress, the executive branch, the legal profession, and the academic community. This Administration is dedicated to strengthening cooperation between the Congress and the President in the conduct of foreign affairs and to preserving the constitutional prerogatives of both branches of our Government. I know that the Congress shares that goal. A commission on the constitutional roles of the Congress and the President would provide a useful opportunity for both branches to work together toward that common objective. RICHARD NIXON The White House, October 24, 1973. Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization The President's inherent, constitutional authority as Commander-in-Chief, his broad foreign policy powers, and his duty to take care that the laws be faithfully executed generally empower him to deploy the armed forces abroad without a declaration of war by Congress or other congressional authorization. A historical pattern of presidential initiative and congressional acquiescence in emergency situations calling for immediate action, including situations involving rescue and retaliation, confirm this inherent power, and the courts have generally declined to review its use. The War Powers Resolution generally precludes presidential reliance on statutory authority for military actions clearly involving hostilities, unless a statute expressly authorizes such actions, and regulates the President's use of his constitutional powers in this regard. In particular, it introduces consultation and reporting requirements in connection with any use of the armed forces, and requires the termination of such use within 60 days or whenever Congress so directs. The term "United States Armed Forces" in the War Powers Resolution does not include military personnel detailed to and under the control of the Central Intelligence Agency. [In an opinion issued on October 26, 1983, published as an appendix to this opinion, this conclusion is reconsidered and reversed.] The term "hostilities" in the War Powers Resolution does not include sporadic military or paramilitary attacks on our armed forces stationed abroad; furthermore, its applicability requires an active decision to place forces in a hostile situation rather than their simply acting in self-defense. The requirement of consultation in the War Powers Resolution is not on its face unconstitutional, though it may, if strictly construed, raise constitutional questions. The provision in the War Powers Resolution permitting Congress to require removal of our armed forces in particular cases by passage of a concurrent resolution not presented to the President is a prima facie violation of Article I, § 7 of the Constitution. February 12, 1980 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This responds to your request for our review of certain questions regarding the effect of the War Powers Resolution on the President's power to use military force without special congressional authorization and related issues. We have considered the President's existing power to employ the armed forces in any of three distinct kinds of operations: (1) deployment abroad at some risk of engagement-for example, the current presence of the fleet in the Persian Gulf region; (2) a military expedition to rescue the hostages or to retaliate against Iran if the hostages are harmed; (3) an attempt to repel an assault that 185 HeinOnline -- 4a Op. Off. Legal Counsel 185 1980 threatens our vital interests in that region. We believe that the President has constitutional authority to order all of the foregoing operations. We also conclude that the War Powers Resolution, 50 U.S.C. §§ 1541-1548, has neither the purpose nor the effect of modifying the President's power in this regard. The Resolution does, however, impose procedural requirements of consultation and reporting on certain presidential actions, which we summarize. The Resolution also provides for the termination of the use of the armed forces in hostilities within 60 days or sooner if directed by a concurrent resolution of Congress. We believe that Congress may terminate presidentially initiated hostilities through the enactment of legislation, but that it cannot do so by means of a legislative veto device such as a concurrent resolution. I. The President's Constitutional Authority to Employ the Armed Forces The centrally relevant constitutional provisions are Article II, § 2, which declares that "the President shall be Commander in Chief of the Army and Navy of the United States," and Article I, § 8, which grants Congress the power "To declare War." Early in our constitutional history, it perhaps could have been successfully argued that the Framers intended to confine the President to directing the military forces in wars declared by Congress.' Even then, however, it was clear that the Framers contemplated that the President might use force to repel sudden invasions or rebellions without first seeking congressional ap2 proval . In addition to the Commander-in-Chief Clause, the President's broad 3 foreign policy powers support deployment of the armed forces abroad. The President also derives authority from his duty to "take Care that the Laws be faithfully executed," 4 for both treaties and customary international law are part of our law and Presidents have repeatedly asserted authority to enforce our international obligations 5 even when Congress has not enacted implementing legislation. ' Hamilton, in The Federalist No. 69, disparaged the President's power as that of "first General and Admiral" of the Nation, contrasting it to that of the British king, who could declare war and raise and regulate armies. 'See M. Farrand, 2 The Records of the Federal Convention of 1787, 318-19 (1911). Other presidential actions, such as protecting American lives and property abroad and defending our allies, were not directly considered by the Framers. This is understandable: the military needs of the 18th century probably did not require constitutional authority for immediate presidential action in case of an attack on an ally. I See generally United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). 'See In re Neagle. 135 U.S. I (1890) (broad view of inherent presidential power to enforce constitutional as well as statutory provisions). 5It should be observed, however, that treaties may not modify the basic allocation of powers in our constitutional scheme. Reid v. Covert. 354 U.S. I (1957). Mutual defense treaties are generally not selfexecuting regarding the internal processes of the signatory powers. Similarly, customary international law, which includes authority for reasonable reprisals in response to another country's breach of international obligation, probably does not confer authority on the President beyond the warrant of necessity. HeinOnline -- 4a Op. Off. Legal Counsel 186 1980 We believe that the substantive constitutional limits on the exercise of these inherent powers by the President are, at any particular time, a function of historical practice and the political relationship between the President and Congress. Our history is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval. This pattern of presidential initiative and congressional acquiescence may be said to reflect the implicit advantage held by the executive over the legislature under our constitutional scheme in situations calling for immediate action. Thus, constitutional practice over two centuries, supported by the nature of the functions exercised and by the few legal benchmarks that exist, evidences the existence of broad 6 constitutional power. The power to deploy troops abroad without the initiation of hostilities is the most clearly established exercise of the President's general power as a matter of historical practice. Examples of such actions in the past include the use of the Navy to "open up" Japan, and President Johnson's introduction of the armed forces into the Dominican Republic in 1965 to forestall revolution. Operations of rescue and retaliation have also been ordered by the President without congressional authorization even when they involved hostilities. Presidents have repeatedly employed troops abroad in defense of American lives and property. A famous early example is President Jefferson's use of the Navy to suppress the Barbary pirates. Other instances abound, including protection of American citizens in China during the Boxer Rebellion in 1900, and the use of troops in 1916 to pursue Pancho Villa across the Mexican border. Recent examples include the Danang sealift during the collapse of Vietnam's defenses (1975); the evacuation of Phnom Penh (Cambodia, 1975); the evacuation of Saigon (1975); the Mayaguez incident (1975); evacuation of civilians during the civil war in Lebanon (1976); and the dispatch of forces to aid American victims in Guyana (1978). This history reveals that purposes of protecting American lives and property and retaliating against those causing injury to them are often intertwined. In Durand v. Hollins 8 F. Cas. Ill (No. 4186) (C.C.S.D.N.Y. 1860), the court upheld the legality of the bombardment of a Nicaraguan town which was ordered because the local authorities refused to pay reparations for an attack by a mob on the United States Consul. Policies of deterrence seem to have eroded any clear distinction between cases of rescue and retaliation. Thus, there is much historical support for the power of the President to deploy troops without initiating hostilities and to direct rescue and retaliation operations even where hostilities are a certainty. There is 'in other contexts, the Supreme Court has recognized the validity of longstanding presidential practices never expressly authorized by Congress but arguably ratified by its silence. See United States v. Midwest Oil Co.. 236 U.S. 459 (1915) (withdrawal of public lands from private acquisition). HeinOnline -- 4a Op. Off. Legal Counsel 187 1980 precedent as well for the commitment of United States armed forces, without prior congressional approval or declaration of war, to aid an ally in repelling an armed invasion, in President Truman's response to the North Korean invasion of South Korea. 7 But clearly such a response cannot be sustained over time without the acquiescence, indeed the approval, of Congress, for it is Congress that must appropriate the money to fight a war or a police action. While Presidents have exercised their authority to introduce troops into Korea and Vietnam 8 without prior congressional authorization, those troops remained only with the approval of Congress. H. Judicial Review of the President's Exercise of Constitutional Power In the only major case dealing with the role of the courts with regard to this general subject, the Supreme Court upheld presidential power to act in an emergency without prior congressional authority. In the Prize Cases, 67 U.S. 635 (1863), the Court upheld President Lincoln's blockade of Southern ports following the attack on Fort Sumter. The Court thought that particular uses of inherent executive power to repel invasion or rebellion were "political questions" not subject to judicial review: "This Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted." (td. at 670). The Court's unwillingness to review the need for presidential action in .a particular instance in the Prize Cases or since has left the field to the President and Congress; much has depended on presidential restraint in responding to provocation, and on congressional willingness to support his initiatives by raising and funding armies. More recently, the courts have applied the rationale of the Prize Cases to avoid judicial review of the constitutionality of the President's actions with regard to the Vietnam conflict. 9 Although the Supreme Court did not hear argument in the case, we believe some significance may be attached to the Court's summary affirmance of a three-judge court's decision that the constitutionality of the government's involvement in that conflict was a political question and thus unsuitable for judicial resolution. Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa. 1972), affd, 411 U.S. 911 (1973). 'Although support for this introduction of our armed forces into a "hot" war could be found in the U.N. Charter and a Security Council resolution, the fact remains that this commitment of substantial iorces occurred without congressional approval. 'The substantial American military presence in Vietnam before the Tonkin Gulf Resolution was known to and supported by Congress. 'See. e.g.. Mora v. McNamara, 387 F.2d 862 (D.C. Cir.), cert. denied 389 U.S. 934 (1967); Mcrthur v. Cl/fford 393 U.S. 1002 (1968); Massachusetts v. Laird. 400 U.S. 886 (1970). HeinOnline -- 4a Op. Off. Legal Counsel 188 1980 III. The President's Statutory Powers Congress has restricted the President's ability to rely on statutory authority for the use of armed force abroad by its provision in the War Powers Resolution that authority to introduce the armed forces into hostilities or into situations "wherein involvement in hostilities is clearly indicated by the circumstances" is not to be inferred from any statutory provision not specifically authorizing the use of troops and referring to the War Powers Resolution. 50 U.S.C. § 1547. Thus, the President may not rely on statutory authority for military actions clearly involving hostilities unless the statute expressly authorizes such actions. Nevertheless, it may be possible for the President to draw authority for some actions not involving the use of the armed forces in actual or imminent hostilities from the provisions of an 1868 statute, now 22 U.S.C. § 1732: Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress. We are unaware of any instances in which this provision has been invoked. It was passed in response to a dispute with Great Britain after the Civil War, in which that nation was trying its former subjects, who had become naturalized Americans, for treason. The House version of the bill, which would have authorized the President to suspend all commerce with the offending nation and to round up its citizens found in this country as hostages, was replaced by the present language which was in the Senate bill. Cong. Globe, 40th Cong., 2d Sess. 4205, 4445-46 (1868). It is not clear whether this change was meant to restrict the President to measures less drastic than those specified in the House bill. It is also not clear what Congress meant by the phrase "not amounting to acts of war." At least Congress did not seem to be attempting to limit the President's constitutional powers. HeinOnline -- 4a Op. Off. Legal Counsel 189 1980 IV. The War Powers Resolution The War Powers Resolution, 50 U.S.C. §§ 1541-48, begins with a statement of purpose and policy that seems designed to limit presidential use of armed forces in hostilities to situations involving a declaration of war, specific statutory authorization, or an attack on the United States, its possessions, or its armed forces. This policy statement, however, is not to be viewed as limiting presidential action in any substantive manner. That much is clear from the conference report, which states that subsequent portions of the Resolution are not dependent on the policy statement,"0 and from its construction by the President since its enactment. The important provisions of the Resolution concern consultation and reporting requirements and termination of the involvement of the armed forces in hostilities. The Resolution requires that the President consult with Congress "in every possible instance" before introducing the armed forces into hostilities, and regularly thereafter. 50 U.S.C. § 1542. The reporting requirements apply not only when hostilities are taking place or are imminent, but also when armed forces are sent to a foreign country equipped for combat. 50 U.S.C. § 1543(a)(2), (3). The report must be filed within 48 hours from the time that they are introduced into the area triggering the requirement, and not from the time that the decision to dispatch them is made." The report must include: (A) The circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. 50 U.S.C. § 1543(a)(3). Reports which have been filed in the past have been brief and to the point. The reference to legal authority has been one sentence, referring to the President's constitutional power as 2 Commander-in-Chief and Chief Executive. 5 See H.R. Rep. No. 547, 93d Cong., Ist Sess. 8 (1973). Section 1547(dX) states that the Resolution is not intended to alter the constitutional authority of the President. Fisher, A Political Context for Legislative Vetos 93 Political Science Quarterly 241, 246 (1978), explains that because the two Houses could not agree on the President's responsibilities under Article Ii. Congress fell back on purely procedural controls. "See generally Franck, After the Fall: The New Procedural Framework for Congressional Control over the War Power. 71 Am. J. Int'l L. 605, 615 (1977). "See War Powerr A Test of Compliance Relative to the Danang Sealift, the Evacuation of Phnom Penh, the Evacuation of Saigon. and the Mayaguez Incident. Hearings before the Subcommittee on Int l Security and Scientf/c Affairs of the House Comm. on Int'l Relations. 94th Cong., Ist Sess. 75 (Mayaguez) (1975) (hereafter War Powers" A Test of Compliance): The War Powers Resolution. Relevant Documents Correspondence. Reports. Subcomm. on Int'l Security and Scientific Affairs, House Comm. on Int'l Relations, 94th Cong., Ist Sess. 40 (Danang); 42 (Phnom Penh); 45 (Mayaguez) (Comm. Print 1976). HeinOnline -- 4a Op. Off. Legal Counsel 190 1980 The Resolution requires the President to terminate any use of the armed forces in hostilities after 60 days unless Congress has authorized his action. S It also requires termination whenever Congress so directs by concurrent resolution. 4 As enacted, the ambiguous language of the Resolution raises several issues of practical importance regarding the scope of its coverage as well as questions of constitutional magnitude. We shall discuss first several issues related to the scope of its coverage and then discuss several constitutional issues it raises. A threshold question is whether the Resolution's use of the term "United States Armed Forces" was intended to reach deployment or use by the President of personnel other than members of the Army, Air Force, Marine Corps, Navy, or Coast Guard functioning under the control of the Secretary of Defense and the Joint Chiefs of Staff. For example, does it extend to military personnel detailed to and under the control of the Central Intelligence Agency (CIA), CIA agents themselves, or other individuals contracting to perform services for the CIA or the Department of Defense? We believe that none of these personnel are covered by the Resolution.* The provision most closely on point is § 1547(c), which defines the term "introduction of United States Armed Forces" to include "the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country" in actual or imminent hostilities. This provision appears to be intended to identify activities subject to the Resolution, and not the identity of persons constituting "members of such armed forces." It could be argued that anyone officially a member of the armed forces of this country, although on temporary detail to a civilian agency, is within this provision and therefore covered by the Resolution. The legislative history of the Resolution, however, persuades us to take a contrary view. In the Senate, where § 1547(c) originated, Senator Eagleton introduced the following amendment: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of 1350 U.S.C. § 1544(b). There are exceptions to the 60-day period if Congress extends the period or is unable to meet, or if the President certifies that more time is needed to extract the forces. "450 U.S.C. § 1544(c). *NOTE: This conclusion respecting the applicability of the War Powers Resolution to military personnel detailed to the Central Intelligence Agency was reconsidered and reversed in an opinion dated October 26. 1983. which appears as an appendix to this opinion at p. 197 infra. Ed. HeinOnline -- 4a Op. Off. Legal Counsel 191 1980 the Armed Forces of the United States for the purposes of this Act. He explained that it was intended to cover CIA paramilitary operations involving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25,079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America's Indo-China involvement. Senators Muskie and Javits opposed the amendment, principally for reasons of committee jurisdiction. They argued that if the Resolution were extended to cover the CIA, its chances to escape presidential veto might be jeopardized, and that the matter should be considered pursuant to proposed legislation to govern the CIA. Senator Javits also argued that the amendment was overbroad, since it would include foreign nationals contracting with the CIA. He argued that CIA activities should not be within the Resolution, because the CIA lacks the appreciable armed force that can commit the Nation to war. Senator Fulbright came to Senator Eagleton's defense, arguing that the amendment, applying to the CIA and DOD civilians alike, would avoid circumvention of the Resolution. Id. at 25,083-84. No one suggested that the Resolution would apply to anyone other than military personnel under Department of Defense control unless the amendment passed. The amendment was defeated. t5 In the House of Representatives, Congressman Badillo asked Congressman Zablocki, the manager of the bill, whether he would support in the conference committee a Senate provision that would include the CIA within the bill when it carried out military functions. Congressman Zablocki replied that he would support the Eagleton amendment if it passed the Senate. 119 Cong. Rec. 24,697 (1973). Another provision of the Resolution that had its source in the House is consistent with the view that the Resolution was not intended to apply to CIA paramilitary activities. The reporting requirements of § 1543(a)(2) apply when the armed forces are introduced "into the territory, air space or waters of a foreign nation, while equipped for combat . . . ." It is clear from H.R. Rep. No. 287, 93d Cong., 1st Sess. 8 (1973), that this provision was using the term "armed forces" to mean significant bodies of military personnel: 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 Thai"It is an accepted canon of statutory construction that the rejection of an amendment indicates that the bill is not meant to include the provisions in the failed amendment. See. e.g., Norwegian Nitrogen Products Ca v. United States, 288 U.S. 294, 306 (1933). HeinOnline -- 4a Op. Off. Legal Counsel 192 1980 land in 1962 and the quarantine of Cuba in the same year would have required Presidential reports. A companion provision reinforces the view that the Resolution applies only to significant bodies of military personnel. The House report goes on to discuss § 1543(a)(3), which requires a report when the number of armed forces equipped for combat is substantially enlarged in a foreign nation. For examples of substantial increases in combat troops, the report gives the dispatch of 25% more troops to an existing station, or President Kennedy's increase in U.S. military advisers in Vietnam from 700 to 16,000 in 1962. The second threshold question raised by the War Powers Resolution regards the meaning of the word "hostilities" as used in § 1543(a)(1). In the 1975 hearings on executive compliance with the Resolution, Chairman Zablocki of the Subcommittee on International Security and Scientific Affairs drew the Legal Adviser's attention to a discussion of "hostilities" in the House report on the Resolution: 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. H.R. Rep. No. 287, 93d Cong., 1st Sess. 7 (1973) (emphasis added). Chairman Zablocki then requested the views of the Departments of State and Defense regarding the Executive's interpretation of the term "hostilities" in view of the language quoted above. Those Departments responded in a letter to the Chairman dated June 5, 1975, reprinted in War Powers: A Test of Compliance at 38-40. After first noting that "hostilities" is "definable in a meaningful way only in the context of an actual set of facts," the letter went on to state that, as applied by the Executive, the term included: a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces, and "imminent hostilities" was considered to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our view, neither term necessarily encompasses irregular or infrequent violence which may occur in a particular area. Id. at 39. HeinOnline -- 4a Op. Off. Legal Counsel 193 1980 We agree that the term "hostilities" should not be read necessarily to include sporadic military or paramilitary attacks on our armed forces stationed abroad. Such situations do not generally involve the full military engagements with which the Resolution is primarily concerned. For the same reason, we also believe that as a general matter the presence of our armed forces in a foreign country whose government comes under attack by "guerrilla" operations would not trigger the reporting provisions of the War Powers Resolution unless our armed forces were assigned to "command, coordinate, participate in the movement of, or accompany" the forces of the host government in operations against such guerrilla operations. 16 50 U.S.C. § 1547(c). Furthermore, if our armed forces otherwise lawfully stationed in a foreign country were fired upon and defended themselves, we doubt that such engagement in hostilities would be covered by the consultation and reporting provisions of the War Powers Resolution. The structure and thrust of those provisions is the "introduction" of our armed forces into such a situation and not the fact that those forces may be engaged in hostilities. It seems fair to read "introduction" to require an active decision to place forces in a hostile situation rather than their simply acting in self-defense. 17 A final issue of statutory construction involves interpretation of the requirement for consultation with "Congress." "aAs a practical matter, consultation with more than a select group of congressional leaders has never been attempted. The Legal Adviser of the State Department has argued for this Administration, correctly in our view, that there are practical limits to the consultation requirement; he has said that meaningful consultations with "an appropriate group of congressional representatives should be possible." 19 During the Mayaguez incident about ten House and eleven Senate Members were contacted concerning the measures to be taken by the President. 20 In requiring consultation in "every possible instance," Congress meant to be firm yet flexible. H. R. Rep. No. 287, 93d Cong., 1st Sess. 6 (1973). The House report continued: The use of the word "every" reflects the committee's belief that such consultation prior to the commitment of armed forces should be inclusive. In other words, it "We believe that the definition of "introduction of United States Armed Forces" in § 1547(c) supports the proposition that members of the armed forces stationed in a foreign country for purposes of training or advising military forces of the host government are not generally to be viewed as subject to the War Powers Resolution. "in contrast, as passed by the Senate, the bill would have required a report whenever our armed forces are "engaged in hostilities." S. 440, 93d Cong.. IstSess. §4, 119 Cong. Rec. 25,119 (1973). "This replaced an earlier version which merely required consultation with the leadership and appropriate committees of Congress. H. R. Conf. Rep. No. 547, 93d Cong., IstSess. 8 (1973); H. R. Rep. No. 287,,93d Cong., IstSess. 6 (1973). "Statement of State Department Legal Adviser Hansell before the Senate Foreign Relations Committee, reprinted in State Department Bulletin, August 29, 1977, at 291-92. "Testimony of State Department Legal Adviser Leigh in War Powers: A Test of Compliance at 78. HeinOnline -- 4a Op. Off. Legal Counsel 194 1980 should apply to extraordinary and emergency circumstances-even when it is not possible to get formal congressional approval in the form of a declaration of war or other specific authorization. At the same time, through use of the word "possible" it recognizes that a situation may be so dire, e.g., hostile missile attack underway, and require such instantaneous action that no prior consultation will be possible. The State Department Legal Adviser, again speaking for this Administration, has pointed out the problem that exists in emergencies, noting that "[Bly their very nature some emergencies may preclude opportunity for legislative debate prior to involvement of the Armed Forces in hostile or potentially hostile situations." He recognized, however, that consultation may be had "in the great majority of cases." 21 There may be constitutional considerations involved in the consultation requirement. When President Nixon vetoed the Resolution, he did not suggest that either the reporting or consultation requirements were unconstitutional. Department of State Bulletin, November 26, 1973, at 662-64. No Administration has taken the position that these requirements are unconstitutional on their face. Nevertheless, there may be applications which raise constitutional questions. This view was stated succinctly by State Department Legal Adviser Leigh: Section 3 of the War Powers Resolution has, in my view, been drafted so as not to hamper the President's exercise of his constitutional authority. Thus, Section 3 leaves it to the President to determine precisely how consultation is to be carried out. In so doing the President may, I am sure, take into account the effect various possible modes of consultation may have upon the risk of a breach in security. Whether he could on security grounds alone dispense entirely with "consultation" when exercising an independent constitutional power, presents a question of constitutional and legislative interpretation to which there is no easy answer. In my personal view, the resolution contemplates at least some consultation in every case irrespective of security considerations unless the President determines that such consultation is inconsistent with his constitutional obligation. In the latter event the President's decision could not as a practical matter be challenged but he would have to be prepared to accept the political consequences of such action, which might be heavy. 31Statement of Legal Adviser Hansell, id. HeinOnline -- 4a Op. Off. Legal Counsel 195 1980 War Powers: A Test of Compliance at 100. Other constitutional issues raised by the Resolution concern the provisions terminating the use of our armed forces either through the passage of time (60 days) or the passage of a concurrent resolution. We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed forces as required by the provisions of § 1544(b) of the Resolution. The Resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of "unavoidable military necessity." This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his constitutional function as Commander-in-Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our armed forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. Finally, Congress may regulate the President's exercise of his inherent powers by imposing limits by statute. We do not believe that Congress may, on a case-by-case basis, require the removal of our armed forces by passage of a concurrent resolution which is not submitted to the President for his approval or disapproval pursuant to Article I, §7 of the Constitution. JOHN M. HARMON Assistant Attorney General Office of Legal Counsel HeinOnline -- 4a Op. Off. Legal Counsel 196 1980 Ronald Reagan's Statement on Signing the Multinational Force in Lebanon Resolution October 12, 1983 I am pleased to sign into law today S.J. Res. 159, the Multinational Force in Lebanon Resolution. This resolution provides important support for the United States presence and policies in Lebanon and facilitates the pursuit of United States interests in teat region on the bipartisan basis that has been the traditional hallmark of American foreign policy. In my view, the participation and support of the Congress are exceedingly important on matters of such fundamental importance to our national security interests, particularly where United States Armed Forces have been deployed in support of our policy objectives abroad. I am grateful to those of both political parties who joined in the expression of resolve reflected by the enactment of this resolution, and especially to the bipartisan leadership of Senate Majority Leader Baker, House Speaker O'Neill, House Foreign Affairs Committee Chairman Zablocki, and Senate Foreign Relations Committee Chairman Percy. The text of this resolution states a number of congressional findings, determinations, and assertions on certain matters. It is, of course, entirely appropriate for Congress to express its views on these subjects in this manner. However, I do not necessarily join in or agree with some of these expressions. For example, with regard to the congressional determination that the requirements of section 4(a)(1) of the War Powers Resolution became operative on August 29, 1983, I would note that the initiation of isolated or infrequent acts of violence against United States Armed Forces does not necessarily constitute actual or imminent involvement in hostilities, even if casualties to those forces result. I think it reasonable to recognize the inherent risk and imprudence of setting any precise formula for making such determinations. However, complete accord on such debatable issues is less important than the process that has taken place and the bipartisan policy goals that have been articulated. We must not let disagreements on interpretation or issues of institutional powers prevent us from expressing our mutual goals to the citizens of our nation and the world. I therefore sign this resolution in full support of its policies, but with reservations about some of the specific congressional expressions. There have been historic differences between the legislative and executive branches of government with respect to the wisdom and constitutionality of section 5(b) of the War Powers Resolution. That section purports to require termination of the use of United States Armed Forces in actual hostilities or situations in which imminent involvement in hostilities is clearly indicated by the circumstances unless Congress, within 60 days, enacts a specific authorization for that use or otherwise extends the 60-day period. In light of these historic differences, I would like to emphasize my view that the imposition of such arbitrary and inflexible deadlines creates unwise limitations on Presidential authority to deploy United States Forces in the interests of United States national security. For example, such deadlines can undermine foreign policy judgments, adversely affect our ability to deploy United States Armed Forces in support of these judgments, and encourage hostile elements to maximize United States casualties in connection with such deployments. I believe it is, therefore, important for me to state, in signing this resolution, that I do not and cannot cede any of the authority vested in me under the Constitution as President and as Commander in Chief of United States Armed Forces. Nor should my signing be viewed as any acknowledgment that the President's constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5(b) of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the President's constitutional authority to deploy United States Armed Forces. Let me underscore, however, that any differences we may have over institutional prerogatives will in no way diminish my intention to proceed in the manner outlined in my letter of September 27, 1983, to achieve the important bipartisan goals reflected in this resolution. Indeed, I am convinced that congressional support for the continued participation of United States Forces alongside those of France, Italy, and the United Kingdom helped bring about the recent cease-fire and the start of the reconciliation process in Lebanon. The security and the stability of the Beirut area and the successful process of national reconciliation are essential to the achievement of United States policy objectives in Lebanon, as stated in the resolution. It is my fervent hope and belief that this reaffirmation of the support of the executive and legislative branches for the Government of Lebanon and for our partners in the multinational force will promote a lasting peace and hasten the return home of our Armed Forces. APPENDIX War Powers Resolution: Detailing of Military Personnel to the CIA October 26, 1983 MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL This responds to your inquiry whether a Central Intelligence Agency (CIA) operation utilizing military equipment and military personnel detailed to the CIA would require compliance with the War Powers Resolution. In responding to this inquiry, this Office has found it necessary to re-examine and revise a broad conclusion expressed by this Office in its February 12, 1980 memorandum, the "Harmon Memorandum,"' that "military personnel detailed to and under the control of the CIA . . ." would not be covered by the War Powers Resolution were they to be deployed into hostilities or a situation otherwise triggering that Resolution. The heart of the argument in the Harmon Memorandum is the essentially negative inference drawn from the Senate's rejection of the so-called "Eagleton amendment,"12 which is reprinted on page 8 of that memorandum. The Eagleton amendment would have supplemented § 8(c) of the War Powers Resolution regarding the definition of the term "introduction of United States Armed Forces." As enacted, § 8(c) now provides: For purposes of this chapter, the term "introduction of United States Armed Forces" includes the assignment of members of such armed forces to command, coordinate, 'Memorandum for the Attorney General entitled "Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization" from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Feb. 12, 1980. The occasion for this memorandum was planning relative to the holding by Iran of American hostages and a range of potential American responses to that situation including a possible rescue attempt. The memorandum was general, however, and did not focus on a specific factual situation. Particularly, the Harmon Memorandum's comments concerning a CIA operation involving detailed military personnel was a part of a general discussion and was not in response to a precise fact-specific question. 'Senator Eagleton introduced several amendments to the War Powers Resolution. Some were adopted. This particular amendment was enumerated as amendment No. 366. and is set out in 119 Cong. Rec. 25,079 (1973). HeinOnline -- 4a Op. Off. Legal Counsel 197 1980 participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities. 50 U.S.C. § 1547(c). Senator Eagleton urged adding the following sentence: Any person employed by, under contract to, or under the direction of any department or agency of the United States Government who is either (a) actively engaged in hostilities in any foreign country; or (b) advising any regular or irregular military forces engaged in hostilities in any foreign country shall be deemed to be a member of the Armed Forces of the United States for the purposes of this Act. 119 Cong. Rec. 25,079 (1973). We observe at the outset that the Eagleton amendment on its face does not suggest that it deals with a situation in which uniformed personnel would be detailed to the CIA; indeed, what it would have done on its face was to provide that all government employees under the direction of any department or agency either engaged in hostilities in any foreign country or advising any regular or irregular military forces engaged in hostilities would be deemed to be a member of the armed forces for purposes of the War Powers Resolution. In other words, military or paramilitary activities by the CIA would have triggered the War Powers Resolution irrespective of whether the activities were performed by military personnel, civilian employees, or persons under contract to or under the control of the CIA. The sentences in the Harmon memorandum that follow the quotation of the Eagleton amendment read as follows: He [Senator Eagleton] explained that it [his amendment] was intended to cover CIA paramilitary operations involving persons who might be military officers under contract to the CIA. 119 Cong. Rec. 25079-83 (1973). He recognized that without this amendment the Resolution as drafted would not cover the activities of such personnel, and argued that it should, citing CIA activities in Laos as leading to America's Indo-China involvement. We have carefully reviewed not only the remarks of Senator Eagleton contained in the cited pages of the Congressional Record, but also the full Senate debate on the Eagleton amendment. We have been unable to find a single remark made by Senator Eagleton or any other Senator that reasonably could be read to support the assertion con- HeinOnline -- 4a Op. Off. Legal Counsel 198 1980 tained in the sentences quoted above from the Harmon Memorandum. In fact, Senator Eagleton and the other Senators who spoke at length for or against the Eagleton amendment manifested an understanding that the debate revolved around the CIA's potential use of civilian personnel to conduct combat operations rather than situations in which the conduct of the same operations by military forces might occur. Senator Eagleton and his principal ally in the floor debate, Senator Fulbright, repeatedly expressed the view that failing to include activities which the CIA might conduct with civilian personnel was a major "loophole" which would allow Presidents to evade the War Powers Resolution. The whole point of the Eagleton amendment, which emerges with considerable clarity once the legislative history is examined closely, is that Senator Eagleton intended that civilian forces were to be treated the same as military forces for purposes of application of the War Powers Resolution: My amendment would circumscribe the President's use of American civilian combatants in the same manner uniformed Armed Forces are circumscribed by S. 440 as presently drafted. It would, in other words, prevent a President from engaging American civilians, either directly or as advisers, in a hostile situation without the express consent of Congress. 119 Cong. Rec. 25,079 (1973) (emphasis added). Thus, Senator Eagleton spoke at considerable length about his concern that wars or lengthy and costly military engagements could be caused by CIA covert civilian operations. The discussion did not relate to covering, by this amendment, the detailing of military personnel to the CIA. Furthermore, the record implies, albeit less strongly on this point, that CIA activities which actually used military personnel would be covered by the War Powers Resolution irrespective of the Eagleton amendment. The closest that Senator Eagleton himself comes to saying something similar to what was attributed to him by the Harmon Memorandum is in a paragraph that reads as follows: So military activities will be carried on by civilian employees of the Pentagon, because under the War Powers bill nothing prevents the Pentagon from hiring or contracting with civilian employees, ex-military people perhaps, but people that are called civilians. Id. at 25,083 (emphasis added). Senator Eagleton's statements do not support the argument that the Eagleton amendment was an attempt to expand the War Powers Resolution to embrace CIA activities using military personnel. When exam- HeinOnline -- 4a Op. Off. Legal Counsel 199 1980 ined in their full context, it was concern over any American involvement in a military context which the Eagleton amendment was intended to address. He also said: unless we treat all Americans in military situations alike, whether they are wearing a green uniform, red-white-andblue or a seersucker suit with arms-what payroll you are on is really secondary; whether you get it from the Pentagon or whether you become a member of the Armed Forces, the end result is the same: Americans are exposed to the risk of war. And as they are exposed to the risk of war, the country, then makes a commitment to war. Id. at 25,080 (1973). In this same debate, Senator Javits, speaking in opposition to the Eagleton amendment, stated his understanding of the applicability of the War Powers Resolution to paramilitary activities conducted by the CIA as follows: Another important consideration is that there [is] outside the Armed Forces . . . no agency of the United States which has any appreciable armed forces power, not even the CIA. They [the CIA] might have some clandestine agents with rifles and pistols engaging in dirty tricks, but there is no capability of appreciable military action that would amount to war. Even in the Laotian war, the regular U.S. Armed Forces had to be called in to give air support. The minute combat air support is requiredyou have the Armed Forces, and the [War Powers Resolution] becomes operative. Id. at 25,082 (emphasis added). This debate over the Eagleton amendment stands rather clearly for the proposition that CIA civilian operations (at least most of them) were not embraced by the War Powers Resolution as ultimately passed by the Congress unadorned with the Eagleton amendment. We do not believe the negative inference to be drawn from the defeat of the Eagleton amendment can be stretched further than to confirm that CIA civilian operations are not embraced by the War Powers Resolution. In summary, we believe the legislative history relied on in the Harmon Memorandum supports the proposition that Congress assumed that the CIA's use of civilian or ex-military personnel would not trigger the War Powers Resolution. We do not believe that that legislative history may be relied upon for the conclusion that the involvement of HeinOnline -- 4a Op. Off. Legal Counsel 200 1980 military personnel, if temporarily detailed to the CIA and under civilian control, would remain outside the War Powers Resolution. THEODORE B. OLSON Assistant Attorney General Office of Legal Counsel HeinOnline -- 4a Op. Off. Legal Counsel 201 1980 . o , " THE WHITE HOUSE ", _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - W A S H I NGTON August 7, 1990 'MEMORANDUM FOR THE PRESIDENT GRA~ FROM: C" BOYDEN SUBJECT: Potential Significance of a Declaration of War Against Iraq As you requested, I have looked at the advantages and disadvantages that would fol~ow from a declaration of war against Iraq. For the reasons set forth below, there are few legal advantages to a declaration of war unless you anticipate serious and sustained hostilities with Iraq requiring wartime mobilization of the American people and economy. If you anticipate a more modest military commitment. to the Persian Gulf region, depending on the size of the commitment, its likely duration, and the risk of involvement in hostilities, you can proceed either without any formal congressional approval at all, or seek a joint resolution of Congress endorsing your action. o International Law . Under customary international practice, declarations of war serve to (1) notify neutral powers of the existence of a state of. war, (2) prepare the nation's political struc~ure and populace for war, and (3) publicly explain the circumstances necessitating the declaration. Declaring war is one way that a state can acquire belligerent status under international law. States with such status acquire belligerent. rights, including the rights to intern enemy aliens and confiscate enemy property found within tneir territory, blockade enemy ports, and seize enemy shipping. Of course, states against wh9m war is declared acquire these same rights against the declaring state. This would mean that ~f Iraq acquired belligerent status by virtue of a u.s. declaration of war, Iraq would have a strong basis under international law for interning U.S. citizens for the duration of the conflict. Belligerent status can also be acquired by engaging .in acts' of ----------~w~a~r~,~h~o~w~e=ver,; and throughout history many if not most conflicts have been fought without formal declarations of war. Constitutional Issues Under our Constitution, Congress has the power to declare war and the President, as Commander-in-Chief, has the powe~to conduct it. The records of the constitutional convention sugges~ that an important purpose of this division was to ?afford the President ...oo.o. --?-roo . ot"o . ," 2 ~ flexib~lity to respond quickly to aggression, while ensuring that _____________C=ong~es_s approyed_of any_decision to commit aggression against---------other countries. Obviously this distinction is easier to draw in theory than in practice. Because we believe that the United States does not initiate aggression, the Executive branch has generally held that the President can order U.S. forces into combat without a declaration of war. Accordingly, we have proceeded without a declaration of war or other congressional authorization when it was politically tenable to do so, as in Grenada and, Panama. Congress, on the other hand, has sometimes taken a more restrictive view of the President's authority. Because the U.S. cannot long sustain military commitments without the support of Conq~ess and the American people,'other mechanisms have been resorted to when politically expedient and a declaration of war was not desired. The most commonly used mechanism is the joint resolution. The two most recent examples are the Gulf of Tonkin Resolution, which was adopted at President Johnson's request in 1964 in furtherance of his policy in Viet Nam, and the Multinational Force in Lebanon Resolution, which Congress insisted on enacting in 1983 in order to preserve its position concerning application of the War Powers Resolution to Lebanon. 1 Consequences Under U.S. Law ~ If you order a U.S. military"response to Iraq's invasion of Kuwait, it will be immaterial under U.S. law whether that response is unilateral or undertaken under .auspices of the United l Another example, arguably relevant to the current situation, is the Resolution to Promote Peace and Stability in the Middle East, adopted in 1957 in support of President Eisenhower's intervention in Lebanon. This resolution, which remains in effect and is currently codified at 22 a.s.c 1961-1965, provides in pertinent part: . . o o the United States regards as vital to the national interest and world peace ~he preservation of the independence" and integrity of the nations of the Middle East. To this end, if the President determines the _ necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of ~uch 'nations requesting assistance against armed aggression from ----------4iaLln~!I'f-'.....lco~'unt,r?ycontrolled by international communism o o o This resolution would appear to provide c6ngre~sional authorization for the deployment of U.S. forces to the Middle East in response to Iraq's invasion of Kuwait only if we could plausibly claim that Iraq is a "country controlled by international communism." o ............... , . "I',~ ....... 3 o Natio,ns. In either case, your legal options and the legal consequences under u.s. law of your actions will be the same. A declaration of war would have limited effect under existing statutes. It would fUlly satisfy the requirements of the War Powers Resolution 2 , thereby eliminating the need to report certain force deployments to Congress and prov~ding congressional authorization to continue deployments into hostile situations for more than 60 days. A joint resolution of Congress would also provide authorization to continue such deployments, however, though the requirement that certain deployments be reported to Congress would remain in effect. In the absence of either a declaration of war or a joint ,resolution, we would be subject to both the War Powers Resolution's reporting requirement and its requirement -- which-we regard as unconstitutional -- to terminate deployments into hostile situations after 60 days. A declaration of war would also allow us to invoke the Trading With the Enemy Act against the assets of Iraq and its citizens in the United States. The principal advantage of this Act over the International Emergency Economic Powers Act -(which we have already invoked against Iraq) is that it would permit us not only to freeze Iraqi assets, but to confiscate them as well. o A declaration of war or national emergency by Congress empowers the President to call up all members the reserves for the duration of the war or emergency plus six months. However, the President already has statutory authority to call up 1,000,000 members of the Ready Reserve for 24 months upon issuing his own declaration of national emergency. In addition, he has authority to call up 200,000 members of the Selected Reserve for 90'days if he dete~mines that doing so "is necessary to augment the active forces fo~ any operational mission." 2 The War Powers Resolution provides that the President is to consult with Congress "in every possible instance" prior to introducing u.s. military forces into hostilities or situations where involvement in hostilities is imminent. It also requi~es .the President to report to Congress within 48 hours any deployment (1) "into hostilities or into situations where imminent involvement in hostilities is clearly indicated," (2)_ "into the territory, airspace or waters of a foreign nation while equipped for combat," or (3) "in numbers which substantially __________-4e~A~l~a~r~g~e.United States Armed Forces equipped for combat already located in a foreign nation." The Resolution :further provides that, with respect to the first category of deployments (into hostilities or situations where involvement in hostilities is imminent), the forces must be withdrawn after 60 days unless Congress has declared war or,enacted a joint resolution authorizing continued deployment. o \~ "." ' oo - ~~z- .. ,.. ~" ..." .o ~ ......... 40 ~. 4 ~ Various other statutes empower the President to reclaim Q.S. - - - - title to former military facirities inthe event of war. These statutes vary, but as a .gene~al rule they give the President greater authority to reclaim title in the event of a congressional declaration of war or emergency than in the absence of such a declaration. Another statute authorizes the President to require communications common carriers to give priority to national security communications "during the continuance of a war in which the United States is engaged." This provision probably could be invoked even in the absence of a declaration of war, but its availability would be clearer in the event war was declared. ~ The most important consequences of a declaration of war arise. not under any statute, but under the Constitution. Ouring states of war, Presidents have been able to assume extraordinary authority over American society under the Commander-in-Chief clause. ouring World War II, for example, President Roosevelt created dozens of Executive branch agencies to oversee the economy, and those agencies were generally successful in compelling private sector compliance with their edicts, even in the absence of authorizing legislation. The internment o~ Japanese-American citizens was first ordered by Roosevelt pursuant to his Commander-in-Chief authority, though Congress had ratified this action prior to the Supreme Court decision upholding it. The President also gains extraordinary authority over the military in times of war. He can, for example, direct the military to requisition property and compel services of citizens and aliens, irrespective of the availability of appropriated funds. CQnclusion In the event that the United States undertakes any sort of military response to Iraq's invasion of Kuwait, you will have three options: (1) proceed on your inherent authority as Commander-in-Chief without seeking congressional authorization, (2) seek a joint resolution of Congress approving your action, or (3) request a declaration of war. We believe it is legally sufficient to proceed with no formal congressional authorization at all. However, if u.S. forces will be involved in hostilities or situations where involvement in hostilities is imminent and . you wish to avoid a dispute over the War Powers Resolution, or if a congressional endorsement would useful in gaining public support for your action, you should consider seeking a joint 'resolution approving your action. A declaration of war would give you. -greater authority to wage war against Iraq and undertake. -----------,m~a"s~s~i~v~e~_t~erventionin the U.S. economy, but the principal benefits of such a declaration are ones that you are not likely to need -- or indeed want -- in the current situation. Further, becaus~ of the implications under international law, such a declaration could play into Iraq'S hands. ~ _ I .. J \ o o \~ THE WHITE HOUSE WASHINGTON -------'December-6-,-1990 MEMORANDUM FOR GOVERNOR SUNUNU GRA~ FROM: C. BOYDEN SUBJECT: War PQwers ReSQ+utiQn Attached is the CQPY Qf the War PQwers ResQlutiQn that YQU requested. SectiQns 3, 4, and 5 are the heart Qf the ResQlutiQn. o On August 9 the President provided a repQrt "cQnsistent with" the War PQwers ResQlutiQn nQtifying CQngress Qf the intrQductiQn Qf U.S. forces intQ the Persian Gulf regiQn, and Qn NQvember 16 the President prQvided an additional repQrt updating CQngress Qn the situatiQn. As is custQmary, neither repQrt specified the relevant section Qf the ResQlutiQn, but the first repQrt was cQnsistent with sectiQn 4(a) (2) (cQncerning intrQductiQns Qf U.S. fQrces into foreign cQuntries), and the secQnd was cQnsistent with sectiQn 4(c) (cQncerning periQdic repQrts tQ CQngress). We have cQnsciQusly aVQided nQtifying CQngress cQnsistent with sectiQn 4(a) (1) that hostilities in the regiQn are imminent, because this WQuld trigger the ResQlutiQn's 60-day clQck under sectiQn 5(b). Once the clQck was triggered, the President WQuid be required by the Resolution to terminate the deplQyment Qf U.S. fQrces tQ the regiQn unless CQngress passed legislatiQn specifically authQrizing the deplQyment within sixty days. We believe that the War PQwers ResolutiQn is uncQnstitutiQnal insQfar as it purpQrts tQ allQw CQngress tQ cQmpel the withdrawal of u.s. forces thrQugh inactiQn, but nQ President has wanted tQ jeopardize cQngressiQnal sUPPQrt fQr his actions by defying the , " ResQlutiQn. It often falls tQ Executive branch lawyers tQ develQp a legal theory permitting the President tQ aVQid triggering the clQck. CQngress alsQ has been reluctant tQ permit the President tQ act in defiance of its interpretatiQn of the ResQlutiQn. In tPe, Qnly case where the President's legal ~-------l+nll~t~e~ITpnI~etatiQnco~ld nQt be recQnciled with CQngress's (LebanQn in 1983), CQngress enacted legislatiQn specifically authQrizing the U.S. deployment, but subjecting that authQrizatiQn tQ numerous restrictiQns designed tQ limit the President's freedQm of actiQn. / .,. \Jo 2 o In the current-Sn::uation-; -'Ene'-Re-solufi-o-n-Woula-n-6'E require-not-rce to Congress prior to the initiation of hostilities. While we could choose to provide prior notice, I would counsel? against doing so. Such notice would trigger the GO-day clock, and set an unwelcome precedent for future military operations. Attachment Tab A War Powers Resolution o ...., I ~ 1 ?I i ?: 4r ?, :" I' .. I', l? : , '/ U.S. Dep' artinent of Juso- ~ • ~ Office of Legal Counse • i • I I L s··- ·-· -- i ,~ --------------------,,~-----------:::-:~~ ~ j t Office of the Assistant Attorney General l+'ashiniton. D.C. 20530 i June··9, 1993 . LIMITED OFFICIAL USE MEMORANDUM TO: Alan, Kreczko Special Assistant to the Pre~ident and L~gal Adviser ·N~tional Security Council FROM: Daniel L. Kof~sky1i-K Acting Assistant Attorney General Office of Legal Counsel SUBJECT: Legal Assessment of the War Powers Resolution Attached is our memorandum setting forth the v.iews of the Department of Justice on the constitutionality of the War Powers Resolution and related issues, in response to questions directed to the Department in Presidential Review Directive/NSC-28 on War Powers Is·sues. .As the memorandum notes,. it presents the current.· posit~on 9f the Departrne~t of Justice· on those issues, but is being submitted ~oncurrently to the recently cbnfirm~d Solicitor General and to the Assistant. Attorneys General Designate for the Office of Legal Counsel .and the Civil .Division. A draft was previously submitted to the Departments of State and Defense for comments. The ·Department of State's response, dated June 8, 1993, was not received in time. to be incorporated into our draft or resporided ·to fully, but ~s attached as an appendix. cc: Leon Fuerth Marc Grossman Col. Michael B. Sherfield Vincent Foster Alphonse Malden John A. Laµder Rick Inderfurth Capt. ·a. L. Sheffield LIMITED OFFICIAL USE • I_ 0 0 LIMITED OFFICIAL USE Legal Assessment of the War Powers Resolution This memorandum presents the current position of the Department of Justice on the constitutionality of the War Powers Resolution and related issues. It is, being submitted concurrently to recently confirmed Solicitor General Drew Days; to Walter Dellinger, Assistant Attorney General Designate, Office of Legal Counsel; and ~o Frank Hunger, Assistant Attorney General Designate, Civil Division. The memorandum provides the Department's best assessment of the merits of the legal issues but, is not intended twers as Commander in Chief ~ith respect to the introduction of United States Armed· Forces into hostil1ties or situations in which hostilities- are clearly indicated ar~ e~er~ised .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 fore.es. • • WPR § 2 (c)', so u.s.c. § 154,1 (c). There has been a good deal of debate about whether this section purports to state all of the circumstance's in which the President may order forces into situations w·he.re hostil'ities are likely. As discussed below, the predominant view is that the -list in§ ·2 is not meant to be exclusive or binding. 2. Consultation Section 3 of the WPR, ~o u.s.c~ § 1542, cails for consultation "with-Congress" "in~every possible instance ... before introducing United States Armed Forces into hostilities or - 7 - , LIMITED OFFICIAL USE • 0 LIMITED OFFICIAL USE into situations where irmninent involvement in hostilities is clearly. indicated by the circumstances, 11 and regularly ther~after. The House Report explained that the consuitation was not intended to be "synonymous with merely being inforiried, 11 but rathe:r: mea~s that "Members of Congress are being asked by the President for their advice and opinions and, in appropriate circumstances, their approval of action contemplated." H.R. Rep. Nd. ~87 ~t ~-7. Several questions of interpretation have arisen under this section. The first concerns the definition of "hostilities." .The, House Repor,t indicated ,that '.'h9stilities 11 _was prefe~:>;ed to. "armed conflict" because "hostilities" was. the broader term. ··In addition to actual fighting, the report explained, hostilities also encompa~ses a state of confrontation in which no shots have been fired but where .there is a clear and. present danger of armed CO'.!}flict. "Irmninent hostilities" denotes a situation in which there is a clear ·potential either for .such a state of confronta￾tion or· for actual armed conflict. Id. at 7 (emphasis in original). The Executive Branch, however, has interpreted the te:;-ms more narrowly. The Ford Administr~tion took the apparently narrower view that the term included: a situation in which units of the U.S. armed forces· are actiyely engaged in exchang~s of fire wit~ opposing • units of hostile forces, and "irmninent hostilities 11 was considered. to mean a situation in which there is a serious risk from hostile fire to the safety of United States forces. In our.view, neither term necessarily encompasses irregular or infrequent.violence which may occur in a particular area.• Letter to Rep. Clement J. Zablocki from Monroe Leigh, Legal Adviser, Dept. of State, and Martin R. Hoffmann, General Counsel,. Dept. of Defense (June 3, 1975), reprinted in War Powers: A Test of Compliance: Hearings Before the Subcormn. on International Security of the House Cormn. on International Relations, 94th Cong., 1st Sess .. 39 (1975) ("1975 Hearings"). Successive administrations have held the same view. See,~, "Overview of the War Powers Resolution, i, ~ Op. O.L.C. 271, 275 (1984); • "Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization," 4 Op. O.L.C. 185, 193-94 (1980) .(agreeing that "hostilities" do not include "sporadic military or paramilitary attacks"). - 8 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE The section requires consultation with "Congress." In practice, ~he President has generally consulted only with a select group of congressional l~aders. See "Executive Power with Regard to the Libyan Situation," Memorandum for the Attorney General, et al., from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel 9 (Dec. 23, 1981) ("1981 OLC Memorandum"); see also The Situation in Iran: Hearings Before the Senate Comm. on Foreign Relations, 96t~ Cong., 2d Sess. 31-32 (1980) ( 111980 Hearings") (Act.fng~ Secretary of State Christopher suggesting that depending on the ·circumstances it would be sufficient under§ 3 for the President to consult with only congressional leaders or with leaders and heads of ~elevant committees). - A question has also arisen about the "in every possible instance" language. While recognizing that thfs language did not give the President carte blanche to dispense with consultation, the State Department Legal Advisers in both the Ford and Carter Administrations believed that some emergencies would preclude consultation, even when Congress was in session. 1975 Hearings at 82 (Legal Adviser Leigh); War Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 189 (1977) ("1977 Hearings") (Legal Adviser Hansell). Accord 4 Op. O.L.C. at 194-95. See also 119 Cong. Rec. 33,550 (1973) (Sen. Javits observing that the WPR takes into account "instances of such great suddenness [that] it is not possible to consult in advance"). They also asserted that the need for secrecy might justify the failure to consult in some instances, as in the first stage of the attempted rescue of the hostages in Iran. ~ 1980 Hearings at 9, 13 (statement of Warren - Christopher, Acting Secretary of State); accord, 1981 OLC Memorandum at 10; ™ also The War Power After 200 Years: Congress and the President at a Constitutional Impasse: Hearings Before the Special Subcomm. on War Powers of the Senate Comm. on Foreign Relations, 100th Cong., 1st Sess. 146 (1988) ( 111988 Senate Hearings") (Legal Adviser Sofaer: "We believe that President Carter was on firm ground by using that language ['in every possible instance'] -- and that, in~identally, has been the only instance in which that exception has been invoked -- to justify not consulting ahead of the Iran rescue effort.") . 5 The 5 The Bush Administration based its decision not to consult with Congress before the invasion of Panama on that language, on the ground that the rapidly evolving situation did not allow time for consultation. The Administration reassured Congress, however, that "the President is committed to consultations with Congress prior to deployments of U.S. Forces into actual or (continued ... ) - ,9 - LIMITED OFFICIAL USE • 0 G) LIMITED OFFICIAL USE Comptroller General has observed that the "in every possible instance" clause ·"suggests that the President is permitted a great ·degree of discretion regar9ing when and how he is to 'consult' ... [and] nominally grant[s] substantial discretion to the President to"decide when and to what extent consultation is 'possible.,-.. 1986 U.S. Comp. Gen. LEXIS 23, at *10. (Dec. 24, 1986) (unpublished opinion, B-2230fl) .• 3". Reporting under the WPR Section 4(a) of the WPR, so b.s.c. § 1543(a), calls for a report to -be filed· with Congress within 48-hours. in any case i11. which troops are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) irito the terr_itory, air space or waters. of a foreign nat~on, while .equipped for combat ... ; or ( 3) in numbers which substantially .. enl_arge United States Arined Forces equipped for combat already located in a foreign nation. . . . • Section 4(a) provides that the report must set forth: (A) the circumstances pecessitating the int~oduction of United States Armed Forces; (B) the. constitutional and legislative authority u11der which t·he forces have been introduced; 6 and (C} the 5 (.· .. continued) imminent hostilities in all instances where such consultations -are possible." Letter from Brent Scowcroft, National Security Adviser, to ~ep. Dante B. Fascell (Feb. 10, 1990}, quoted in Staff of the House Comm. on Foreign Affairs, 101st Cong,· 1st Sess., Congress and Foreign Policy 19·90, at 15-16 (Comm. Print 1991)., • It is not clear, however, that President Carter's failure to corisult was based on the "in every possible instance" language. An opinion of the Counsel to the President, Lloyd cutler, quoted that clause b~t explained t~at in the first stage, the rescue mission did not involve hostilities. .See 1980 Hearings at. 48. 6 Ai though the sta"tute refers to constitutiona·l and legislative authority, in most cases the reports f~led have relied solely upon the President's constitutional authority as (continued ... ) - 10 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE 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 § -s·(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'of'the House and the Presiderit pro tempore of the Senate and to the House Committee on For~ign Affairs and the Senate Committee on Foreign Relations. 4. Rem6v~l of Troops Sec~ion S(b), 50 U.S.C. § 1544(b), provides that "[w]ithiri sixty calendar days after a report is submitted or is required to be submitted pursuant to" § 4 (a) (1), the. President must _terminate the use of United States Armed. Forces unless Congress has declared war, enacted a specific authorization for the use of troops, or extended the 60 day period, or unless Congress is unable to do so because of an armed attack on the United States. The President may extend the 60-day period by no more than 30 days if "unavoidable military necessity respecting the safety of" the forces "requires the continued use of such armed forces in the ~curse of bringing about a prompt removal of such forces." WPR § S(b). Section 6 of the WPR, so u.s.c. § 1545, sets out expedited procedures for consideration by both Houses of joint resolutions· extending the time of the deployment _of troops under • § 5 (b) . Section 5 (·c) authorizes Congress, acting by a concurrent resolution not presented to the President for approval or veto, to .require removal. of troops in any sttuation involving actual hostilities~ Under§ 7 of the WPR, 50 U.S.C. § 1546, such resolutions receive expedited consi~eration in Congress. Af~er th~ Supreme Court's. decision in INS v. Chadha, 462 u.s~ 919 (1983), called into question the constitutionality of the co'ncurrent resolution mechanism, Congress e_nacted a free-standing statute th~t provided for the expedited consideration of joint • resqlutions reCJ1:1iring the remov~l o~ United States Armed Forces 6 ( • , d) ... continue. Commander in Chief and Chief Executive. See 1981 OLC opinion at 11; see also Staff of the Subcomm.: on Arms Control, Int •·1. Security and Science, House Comm. on Foreign Affairs, 100th ,-Cong., 2d Sess., The War 'Powers Resolution:. -Relevan~ Documents, Correspondence, Reports (Comm. Print 1988) (reproducing variou~ reports concerning uses of force). - 11 - LIMITED OFFICIAL USE • 0 LIMITED-OFFICIAL USE in the absence of congressional authorization. See Pub. L. No. 98-164, § 1013, 97 Stat~ 1062 (1983} (codified at 50 u.s.c. _§ 1546a} . • The ·60-day limit on the use o.f force by the Presi.dent without .Congressional authori:zation is the subject. of the most heated debate ·on the WPR's constitutionality. Proponents of the WPR argue that the time limit is well within the power of Congr~ss to declare (or, tliey assert, not declare} war. Opponents contend that it ·unconstitutionally restricts the President's exercise of his inherent authority to use force, and some suggest that the automatic nature of the time limit also violates Chadha ~ - - - • • . • • •• ·- • • • •• • • 5. Interpretative Provisions and Issues ·of ·Judicial Review Section 8 of the WPR, 50 U.S.C. ·§ 1547, contains certain o_ther ·miscellaneous provisions. Section 8 (a} expressly provides that authority to introduce United States Armed Forces into • §. 4(a} Cl).s:i.tuations "shall not be inferred" from any provision of law, including any appropriations provi~ion, dr any tr~aty ·"unless such p;-oviston specifically authorizes the introduction of United States Armed Forces into hostilities ... and states that it is intended to constitute specific statutory authorization within the meaning of" the WPR. This provision is intended to '.preclude Executive Branch re~iance for· deployments of 'Qnited States Armed Forces on any ambiguous statutes (including appropriations laws} or treaties. Thus, under§ 8 the • President's authority to deploy armed-forces into hostilities must be .grounded in his inherent constitutional powers unless Congr~ss has. specif ical;.ly provided by statute for such deployment. .It has sometimes been suggested that § 8.(a} is unconstitutional because it would.purport to bind future Congresses or revise the interpretation of pre-existing treaties. Subsection§ S(c} states that under the WPR, the term 11 • intro&1ction of United State~ Armed Forces 111 includes the "assignment ·9f members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or goverrµnent ·when such m_ilitary _ forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities." The WPR as it stands makes no provision for judicial review· of its constitutionality or the President's compliance with it. Who, if anyone, inay sue to enforce the WPR's: provisions has been subject to considerable debate. We discuss in Part IV below various questions of standing, the political question doctrine, - 12 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE and other potential bars to judicial action that have arisen under the WPR.7 II. Constitutionality of the War Powers Resolution A. Overview Since President Nixon vetoed the WPR, no administration has affirmatively recognized its constitutionality. All but the Carter Administration have concluded that at least some provisions of the WPR are unconstitutional. The Carter Administration did not "challenge" the WPR's constitutionality and expressed its intention to follow the WPR "as a matter of policy," but steadfastly refused to state that it was constitutional. See 1977 Hearings at 190, 207, 209; see also 1980 Hearings at 9. Later administrations hinted, even if they did not expressly state, that they would not necessarily comply with provisions they deemed unconstitutional. See Crisis in the Persian Gulf: Hearings Before the House Comm. on Foreign Affairs, 101st Cong., 2d Sess. 22, 32 ( 1990) ( "1990 Hearings") (indicating that the Administration would abide by its belief that the 60-day time limit of§ S(b) was unconstitutional) . 8 The controversy over the WPR stems from sharply different views of the constitutional division of war powers. Supporters of the WPR generally view Congress as being the predominant branch of government in warrnaking, and they therefore believe that the President may exercise warrnaking powers without -congressional autho~~zation only in strictly limited circumstances. See,~. Glennon, Constitutional Diplomacy at 71-87. Oppone~ts of t~e WPR, on the other hand, believe that the Constitution grants the President broad authority over foreign 7 Even if the President's compliance with the WPR is not subject to judicial review, and indeed even if Congress acquie~ces in the questioned actions, the President nevertheless has an independent obligation to ensure that his actions comply with the Constitution and, to the extent they are not unconstitutional, the laws of the United States. 8 In 1983, Secretary of State George Shultz tol_d Congress that despite "important differences of principle" with respect to the WPR, that "the Administration has been prepared to consider pr~c~ic~l proposals that enabled us to protect our common, national interest in Lebanon without prejudging our respective positions on the basic issue of principle." 129 Cong. Rec. 25,191 (1983). - 13 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE. affairs and that he therefore has various inherent powers, including those arising from internatiorial law, allowing the use of force. See,~, Eugene V. Rostow, "Once More Unto the Breach:11 The War Powers Resolution Revisited, 21 Val. U. L~ Rey. 1 (1_986). The text of the Constitution addresses; warmaking in a number of provisions whose relationship is not clear. The p~i~cip~l provisions 4pon which the President's role in waimaking is based are that making him "Command~r in Chie.f of the Army and .Navy of the United States, and of the Militia of the several States, when called· into· the. actual Service of the United States·," ,art ... I:r., § 2, cl. 1, and that granting him the "executive .Power" of the United States, ar~. II, § 1, cl. 1. Those upon which Congress' war powers· are based iriclude the powers: To lay anq· collect Taxes ... to ... provide for the common Defense ... ; To ~efine and punish ... Offenses against the Law of Nations; To declare. War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies .. To provide and maintain a Navy; . • I To make Rules for the Government and Regulation of the land and naval· Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions;_ To provide for organizing, arming, and disciplining, the Militia, and for gpverning such Part -of them as may be employed in the Service of the United States ... [and] To make all ·Laws which shall be necessary and proper for carrying in~o Execution the foregoing, Pow~rs, and all other Powers vested oy this Constitution in the Government of the United States, or in any D~partrnent 6r Officer thereof. U.S. Const., art. I, § 8, els. 1, 10, 11, 12, 13, 14, 15, 16, 18. AlJ~q Qt .11gt;_~, ~-h~ ~9!!~t;~~~io~ prov:ides that " [n] o State shall, wi thc,ut "the· Consent of ·congress, . . . engage in War, unless ac·tually invaded, or in such imminent Dariger as will not adm~t o,f delay." U.S. Const., art. I, § 10, cl. 3. • - 14 - LIMITED"OFFICIAL USE 0 0 LIMITED OFFICIAL USE It is apparent that the text alone cannot resolve the dispute ov~r the appropriate roles of Congress and the President in .the .use of·· force .. Some have turned t;o the intentions of the f rarners, but the ·.evidence is subject to conflicting ipterpretations. The historical pract~ce since the founding also provides different answers to different interpreters. The Constitution's ~iguities ·may be by design, allowing for added flexibility as well as accommodation between the political branches. In a sens~,, therefore, it may be better ·to leave unre~olved some of the questions that could arise . . B~ .Section. ?(c): The President's War Powers 1. Construction of§ 2(c) Section§ 2(c) of the_ WPR probably should not be read as a legally bitiding definition of President's authority to deploy our armed forces without prior congressional authorization. Rather, § 2 ( c) is • 11at most a declaratory statement of policy," Letter to Sen_. ·Thomas F. •~agleton f rein Marshall Wright, Assistant Secretary of State for Congressional Relations (Nov. 30, 1973), reprinted Jn 11~ Cong. Rec. 40, 023 ( 1973) ( "Wright Letter") ; see 1977 Hearings at 196 (Legal Adviser Hansell) (list in§ 2(c) is not exclusive); 4 Op. O.L.C. at 190 (Assistant Attorney General Harmon) {"policy statement [in§ 2(c)] is not to be viewed as limiting ·presidential action in any substantial matter"); 8 Op. O.L.C. at 274 (Assistant Attorney General Olson) (citing 1973 State Department l~tter), a conclusion with which the Comptroller General -- an agent of Congress -- and supporters of the WPR have agreed;~ ·SS Comp. Gen. 1081, 1085 (1975) (various evidence "indicates that Congress meant section 2(c) only as a statement . of pol icy . .'') ;_ Cyru_s R. Vance, Striking the Balance: Congress and the President Under the War Powers Resolution, 133 U .. Pa. L. Rev .. 79, 8.1 (1984) (§ 2 {c) "is a non-binding and non-exhaustive statement. of the President's powers"),; Spong, 16 Win. & Mary L. Rev. at 837-41. 9 The text and structure of the WPR itself suggest this conclusion. Unlike the Senate version of the provision, § 2(c) contains no,mandatory language such as "shall," which appears in every sub~equent section of the WPR, and§ 2(c) h~s no enforcement provisions. Id. at 838-40; ~ also Wright Letter (§ 2{c) contains no mandatory or prohibitory language); Glennon, Constitutional Diplomacy at 89 (§ 2(c) "expresses the 9 A1though Senator Spong left .the Senate before the WPR was ~nacted, he was the floor manager of the Senate war powers bill in 1972. Spong, 16 Wm. & Mary L. Rev. at 823 n.:'". - 15 - LIMITED OFFICIAL USE • 0 ' 0 LIMITED OFFICIAL USE understanding of Congress as to the scope of the President's constftutional power~ .. but it cqntains no mandatory language"). Further, § 2(c) appears in the WPR under the heading 11 Purpose and Poli·cy, 11 "~here all agree •it is operational only to the extent the President chooses voluntarily to comply." Ely, 88 Colum~ L._ Rev .. at 1393;_ see also Wright Letter; 55 Comp. Gen. at 1085; Spong, 16 Wm. & Mary L. Rev. at 837 (§ 2(c) •s placement in the "Purpose and Policy" section raises a question as to its effect). And§ 8(d) clearly disavows any intent to_ define the President's -constitutional authority: "Nothing in this joint resolution -- (1) is intended to alter the constitutional authority of the Congress· or of the President, . •. . ... - See also 55 Comp. Gen. at 1085. The legislative history indicates the same result. Regardi~g § 2(~), the conference report on the WPR stated that: "[s]ubsequent sections of the joint resolution are not dependent ·upon the language of this subsection, as was the case with a similar provision of the Senate bill, 11 H .. R. Conf. Rep. No. 547 at 1-2 (emphasis added). This statement suggests ~hat§. 2(c) was not meant to be binding or an operat~ve part of the WPR, as the version in the Senate bill admittedly was. See Wright Letter; 55 Comp. Gen. at 1085-86. But cf. Spong, 16 Wm. & Mary L. Rev. at 838 (the conference report's statement of § 2(c) 's relationship to the rest of the WPR does not say anything more than is apparent from the text, that is, that the subs·equent • sections of the WPR are not tied to a use of force as described in§ 2-(c)). Further, Senator Muskie, the floor manager of the Senate bill and a conferee, conceded in override debate that II thi~ language [ in § 2 ( c-) ] is not operative language. " Id. at 841 (quoting 119 Cong. Rec. 36.,194 (1973) (Senator Muskie explained that it was added to make clear that ·congress did not intend to surrender any of its ~onstitutional. authority)). S~veral years later, Senator Javits, an author of the WPR and also a member of the conference committ;:ee, expressed a similar view. See 1977 Hearings at 195-97· .(lis,t in § 2 (c) is not an exhaustive list but only "a beginning") .10 lO Of course, a legislator's views expressed after enactment are a particularly hazardous basis on which to interpret a statute. ~ United States v. Price, 361 U .. S. 30~, 313 (1960) Consumer Product Safety Comrn'n v. GTE Sylvania. Inc., 447 U.S. 102, 118 n. 13 (1980); see also Sullivan v. Finkelstein, 110 S. Ct. 2658, 2667 (1990) (Scalia, J;, concurring in part). We note Senator Javits's remarks here merely because they confirm other indications in the text, structure and legislative history of § 2(c). But cf. 119 Cong. Rec. 33,549-50, 33,557-58 (1973) (Sen. Javits, e~laining that§ 2(c) is "operative," and that not being "dependen-t II on. the other -sections, as the coiiference report states, means only that§ 2(c) is not the triggering mechanism). - 16 -· LIMITED OFFICIAL USE • , 0 Q LIMITED OFFICIAL USE 2. The Constitutional Allocation of War Powers . If§ 2(c) were intended to be bindi~g on the President, we believe that it would likely be an unconstitutional limitation on th_e President's, constitutional authority. See Thomas M. Franck,. Rethinking War Powers: By Law or by "Thaumaturgic Invocation", 83 Am. J. ·Int'l L. 766, 772 (1989); Spong, 16 Wm. & Mary at 842. It i~ tr':le that t}?.e Const'itu_tion authorizes only Congress to decJ:are or initiate war in the constitutional sense and that that power is not limited simply to declaring the existence of a, state .of war~ Congres~ may exercise its war powers by various means .. other than. by a fornl?li declaration 9~ war. ~1 Ne~erthe;tef}~, .. tl}e .. Constitution's grant to the President of the executive po~er and the role as .commande~ in C~ief implies authority to use force in limited instances wi~hout the authorization of Congress~ . Congress could not, by mere legislation, deprive the Presiqent of that coristitutional authority. ' a. The Power to Declare War and the Conunander in Chief Power In 1798 ,· James Madison described the Constitutio·n' s distribution of war powers as follows: "The Constitution -supp·oses, what the History of all Gov [ernmen] ts demonstrates, that ,the Ex[ecutive] is· the branch of power most interested i~ war·, & most prone to it~ It has accordingly with studied c~_~!=, "'.'~seed' the question of war in the Legisl [ature] . " Letter from James Madison to 'Thomas Jefferson (Apr. 2, 1798), reprinted- .in• 6 W~itings of James Madison 31~ (Gaillard Hunt ed. 1906). The record of -the framing and ratification of the· <;onst l tut ion supports Madison Is assertion t-hat the p·ower to make ,wa:r ·was.left to Congress. Early drafts of the Constitution gave Congr~ss the power to "make war,'' and designated the President as Commander in Chief. See, ~. 2 Records of:.the Federal Convention of 1787 182, 185 (Max Farrand ed.,· 1966) .(''Records"). Elb;-fdge Gerry and James Madison moved to change· 11make 11 to "declare" in order to "leav[e] to the Executive the power to repel sudden attacks." Id. at 318. Rufus King supported the change, but on the ground that to "'make' war might be understo9d to • conduct·' it which was an Executive function." Id .. at 319 n. * .• Roger Sherman opposed the change, gowever, on the ground t~at "[t)he Exe~utive sh[oul]d be ~ble to repel and _not to comm~nce wa:r;" and ·that the change would narrow Congre_ss' J?Ower ll See the dis'cussion of "undeclared!' war bel_ow, section II. B .•. '2'. b. - 17 - LIMITED OFFICIAL USE • LIMITED OFFICIAL USE too much. Id. at 318. 12 Although the record leaves ambiguous what the ·change was intended to accomplish, see Lofgren, 81 Yale L.J. at 675-76, it is reasonable to conclude from the record as a w~ole that the power to declare war "was not understood in a narrow technical sense but rather as meaning the power to commence war', whether declared or not." Id. at 699. As Professor Ely points out, articles 6 and 9of the Articles of Confederation used "declare," "determine on,· 11 and "engage in" war interchangeably. Ely, 8,8 Colum. L. Rev. at 1388 n.33. 13 Indeed, Chancellor Robert R. Livingston, a drafter of the Declaration of Independence and the Articles of Confederation, rebutted arguments at the New-· York Ratifying Convention 'that. Congress would not have the "same powers" under the Constitution as the Continental Congress had under the Articles of Confederation by 12 Some have relied on Sherman's comment for ·the idea that the President's power is much broader th~n Madison or Gerry· - indicated. See Dick Cheney, Congressional Overreaching in Foreign Policy, in Robert A. Goldwin & Robert A. Licht, eds., Foreign Policy and ·the Constitution, 118 (1990). We do not believe, however, that the argument .of an opponent of the change as to ·its possible effect is entitled to as much weight as tpe statements of the sponsors of the change. The record does not suggest that those who supported the change adhered to Sne;man•s view. l3 One cpmmentator explained: [A]t the time of the _framing, the word 'declare' enjoyed a settled understanding and an established usage. Simply stated, as early as 1552, the verb 'declare' had become synonymous with the verb 'commence'; they both meant-the initiation of hostilities. This was the established usage of international law as well as in England, where the terms to declare war and to make war were .used interchangeably. This practice was familiar to the Framers. David Gray Adler, The Constitution and Presidential Warmaking: The Enduring Debate, 103 Pol. Sci. Q; 1, 6 (1988) (footnotes omitted)~ Ale~ander Hamilton's proposed plan of government at the constitutional convention reflects that understanding. Hfs _plan would have given the. executive "direction of war when author-ized.- or~ begun," but under. it the Senate would have had !'.the sole ,power of declaring war . ." 1 Records at 292 (emphasis supplied). - 18· - LIMITED OFFICIAL USE • () LIMITED OFFICIAL USE maintaining: "They have the very same ... [including] the power of making war." 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution, 278 (J. Elliott ed. 1836) ("Debates"). • The power granted to the P:z::esident appears to have been ~orrespondingly narrow. Tne Commander in Chief power, for example, appears to nave beep viewed as a narrow one even by such a zealous aefender of executive power as Alexander Hamilton: [The Commander in Chief pqwer] would af!lOUnt to nothing . .rn9re_ ~hem tJ1e ,E>llpreme command and direc_tion ot. t}:le military and naval forces, as first General arid Admiral of t~e confederacy; while that of the British King ·extends to the declaring of war, and to the raising and regulating of fleets ~nd armies; all which by the Constitution under consideration would appertain to the Legislature. The Federalist No. 69 at 465 (J. Cooke ed .. 1961) (emphases in original) ;14 see also Fleming v. ~, SO U.S. (9 How·.) 603, 614:- ·15 (1650); ("As commander-in-chief, [the President] is authorized to direct the movement of the naval and_military forces placed by law at his command, and to employ them in the rnanne~ he may deem most effectual to harass and conquer and subdue the enemy," but he does not have the power to enlarge the Union by conquest.); W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch?. 64 (1981) (Commander in Chief power was viewed by the framers as a "·modest grant of ~uthority-") . Nothing in the record of the copvention or the 14 Hamilton had previously stated that "the undefined power of making war" was "an acknowledged prerogative of the [English] crown." The Federalist No. 26~ at 166. ·In speaking of t~e • King • s_ powe_r of II declaring . . . war, 11 the ref ore, Hamil ton undoubtedly meant that the President differed from the King in that the President would lack the "undefined power of making war." In arguing in favor of a single magistrate as the, chief executive,· James Wilson emphasized that such an executive would lack many of the King's powers; including the war power. Madison's notes of the constitutional convention indicate that. "[h]e did not consider the Prerogatives of the British Monarch as a proper gui~e in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & _peace, &c. 11 1 Records at 65-66. - 19 - LIMITED OFFICIAL USE Q -LIMITED OFFICIAL USE ratification suggests an intent to give the President general authority to make war in the absence of a declaration of war: No ratifier suggested that the President would be able unilaterally to utilize forces provided for one purpose in some unauthorized military venture. Undeclared wars were far too important a part of the international scene for one safely to assume that the Framers and ratifiers meant to leave that area of power to tfie President. Sqf_aer,, War, Foreign Affairs and Constitutional Power at 56 .. __ On the contrary, James Wilson, a strong proponen~ of Presidential power at the Philadelphia Convention, told the Pennsylvania ratifiers that the propos~d constitutional system will not hurry us into war; it is calculated to guard again~t it. It will not be in the power of a single llliill, or a single body.of men, to involve us in such distress; for _the important pow¢'r· of declaring war is vested in the legislature ·at large: this declaration rr,ust be made with the· concurrence of the House of Representatives: from this circumstance we may draw a certain conclusio~ that nothing but our national interest can draw us into a war. 2 Debates. at 528 (emphases added) . 15 Nor did Alexander ·Hamil'ton display great trust of the executive in military affairs. In explaining the two-year.limitation on appropriations for an army, Hamilton stated that Congres~ could not give the President permanent funds for an army, "if they were even incautious enough· 15 After ratification battles had passed, James Wilson reiterated tnat account of the war power as a Supreme Court Justice riding circuit. In Henfield's Case, 11 F. Cas. 1099, 1~09 (C.C.D. Pa. 1793) (No. 6,360), he said that neither the President alone, nor the President and Senate together, "can lift up the sword of the United States. Congress alone have power to declare war, and to '-graJ?.t letters of marque and reprisal.' Who indeed should have the power to declare war but these, as the immediate representatives of those who must furnish the blood and treasure upon which war depends?" In the same case, Attorney General Randolph, himself a delegate to the Constitutional Convention,. argued that 11 [t) he right of peace and war is always vested in the government.. In the United States, but congress· alone _possesses it.!' _Id. at 1116. - 20 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE to be ~iiling to place in [the executive branch] so improper a confidence_. 11 The Federalist No. 26, at 168 (emphasis addedr .• Early pr.actice also reflects the view that Congress held the bulk of the ~arrnaking power. George Washington thought • congressional authorization was necessary for any "offensive expedition of impor.tance" against the Creek Indiaris in 1793 ;. 10 Writings of George Washington 367 (J. Sparks ed. 1836), guoted,'in Reveley~- War ··Powers·· or tne:•p·residen't arid Corigress, a:t 277. Jefferson I s "undeclared" wa:r; • ag~inst the Barbary ·.powers is sometimes cited in support of the President's inherent authority to use force. But while Jeff_~~so.n..:..d;i.d• seize .th~ ~z:iit~ativ_e ~o def end American shippi_ng against the pirates, he told ·congress th_at th~ navy was "unauthor~.zed by the. Constitution, without the sanction of Congress, to go beyond the line of defense~" 1 Messages and Papers of the Presidents I 1789-1908 315 ·(J. ·Richardson. ed. 1908) (Jefferson's First Annuar Message to -Congress, Dec. 8, _1801)-. 16 He thereupon asked for authorization for of fe_nsive measures, which function was "confided by the Const-itution to the Legislature exclusively. 11 lg. Congress gra~ted his re~est,. Act· o~ Feb. 6, _1802, ch. 4, 2 Stat. ~29. . P,resi<=:lent Geo;-ge Washington! s Ne~tral_ity Proclamation of 1793· provoked an. animated discussion between two leading. framers, Alexander Hazpilton ,a_nd James Madison, on the -scope of the • President·•~ constitutional authority. ~uch has been made of a s_tatement by H~ilton, .defending the proclamation, that: The general doctrine then of our coristitu~ion i~, that ,the EXECUTIVE POWER of the Nation is vested in the President; subject. ~rily to the .. exceptions arid qu"la].l1fications which are ·expressed in ·the instrument. . ' • [A) s th_e par-ticipat'ion of the senate in the making of Treaties and the power of the• Legi~lature to declare war are exceptions out of the general "Executive Power" vested in the President, they are to be construed • strictly -- and ought to be extended no further than is essential' to their execution. l6 The Pasha of Tr_ipoli had effectively declared war in 1801 'by ordering the Un~teq. ~.tates· c·onsul_ar flagstaff to be cut do~. Henry Adams·, Hi'story of. the United· ·States of America· During -t-he Administrations ·of Thomas Jefferson, 165 (Library. o_f Arner. ·ed. 1986). - 21 - LIMITED OFFICIAL USE • 0 0 1 LIMITED OFFICIAL USE 15 ·H. Syrett and J. Cooke, eds., The Papers of Alexander Hamilton 39, 42 (1969) (Pacificus I, June 29, 1793) ("Pacificus I"): See also Rostow, 21 Val. L. Rev. at 14; War Powers: Origins, Purposes, and Applications: Hearings Before the Subcommittee on Arms Control, Int'l Security and Science of the House Comm. on Foreign Affairs, 100th Cong., 2d Sess_. 107-08 (1988) ("1988 House Hearings") ( statement of Robert F. Turner) .. Ros tow a~serts that Hamilton's analysis "leads logically to the concl~siop that while only Congress can move the nation into a state of •public, notorious, and general war,' as that term is known to international law, the President can use ·the national force under ail the other circumstanc~s in which interna~ional. law. acknowledges the right of states to use force in time of peace." Rostow, 21 ·val. L. Rev.· at 15. Hamilton's views simply do not carry so far. He was defen?ing •a proclamation -of neutrality, rather than a us~ of force, and ,conceded th?l,t the power to dec~are war "naturally includes the right of judg[ing] whether the Nation is under obligations to make war or not." Pacificus I at 40. Further, Hamilton, although a defender of Presidential power, maintained that ,: the Legislature can alone decl_are war, can alone act~ally transfer the nation 'from a state of Peace to a state of War ... It is the _province and duty of the Executive to preserve to the ~ation the blessings of peace. The Legislature alone can interrupt those blessings, by placing the Nation- in a state of War." Id. at 42. He emphasized that ~he President was merely declaring the state of the law under existing treaties. Id. at 43. Finally, in 1798 Hamilton criticized tlie actions of ·president John Adams in the undeclared naval war against France. He stated that Adams could repel actual at.tacks, but could not make reprisals without Congressional authorization. See Lo'fgren, Si Yal~"L.J. at 701. In any event, Hamilton's views during the controversy over the Neutrality Proclamation were not accepted by other framers. Thomas Jefferson, Secretary ot State in i793, wrote to James Madison expressing concern that if no one answered Hamilton "his doctrines ~ill therefore be taken for bonf~ssed" and urged him: "For God's sake, my dear Sir, take up your pen, select the most striking heresies and cut him to pieces in th~ fac~ of the public." 6 Paul Leicester Ford, Writings of Thomas Jefferson 338 (1895) (letter of July 7, 1793). Madison.did. In essays under the pseudonym "He'lvidius," he rejected Hamilton's ar~ent that. the- power to declare war is executive because it "execute[s]" !1Q~hi!lg ~!!~ !;>~<;:~';!§~ ~h~ 99nst;Euf~~n,_ !ists !~--~o~E:t~er wi'th other clearly legislative powers. 15 T~omas A. Mason et il-, eas., The Papers of James Madison 68-69 (1985) (Helvidius I, Aug. 24, 1793); see also id. at 82 (Helvidius II, Aug 31, 1793) ("The - 22 - LIMITED OFFICIAL USE • ------ -- - --- ,- " 0 :Q LIMITED OFFICIAL USE power t_o judge of the causes of war as involved in the power to declare war, is expressly vested where all other legislative powers are vested, that is, in the Congress of the United States. It is consequently determined by the constitutio-n to be· a Legislative power.") (emphasis in original). Madison reasoned that because the power to declare war is essentially legislative "the rule of interpreting exceptions strictly, must· narrow instead of enlarging executive pretensions on those subjects." Id. at 69. His argument concluded that "[t)nose who are to conduct a war C?nnot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded." Id. at 71_ (emphasis in original_). ~ . ·-. . - - - . - Other incidents from the period immediately after the Framing reflect Executive Branch deference to Congress' war￾making and war-funding powers. In addition to the case of the Barbary pirates, discussed above, President Jefferson's . A9,rn1nistration provided another example of such deference during_ a dispute with Spain on the Florida border. In a message to Congress on December 6, 1805, Jefferson explained that the Spanish -intended "to advance on our possessions until t{ley shall be rei:,ressed by an opposing force~" 1 James D. Richardson; ed., Messages -and Papers of the Presidents, 377 (1897). Jefferson sought Congress' authorization for the use of force: "Conside_ring that Congress alone is constitutionally invested with the- power of changi~g our condition from peace to war, I have though~ it my duty to await their authority for using force in any degree which, could be avoided." Id. Even in the face of a threaten_ed invasion, Jefferson had relied qn his own inherent authority ·tq take only very limited, defensive steps: µe had "barely instructed the officers stationed in the neighborhood of the aggressions to protect our citizens from violence, to patrol ~ithin. the borde~s actually delivered to us, and not to go out of •them _but when necessary to repel. an Jnroad or to rescue a citizen -or his property; . . . . 11• Id. James Madison, while President, adhered to the narrow view of Presidential war ·power that he had espoused during the framing and the Washington Administration. In a message to Congress on June 1, 1812, he drew attention to'British attacks on American commerce and noted the failure of our diplomatic "remonstrances," and then asked Congress, as a "solemn question which the Constitution wisely confides to the legislative department of the Government," whether we should oppose "force to force in defense of [our) national rights." 2 Richardson, Messages, 484-85, 48~. During the period of acute tension with France in 1.798, Hamilton, who.by then had left the cabinet, was asked by the Secretary of War whether an Act of Congre~s that had increased - 23 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE the size of 'the navy, see• Act of Apr. 27, 1798, ch. 31, 1 Stat. 552, had in effect authorized the President to initiate hostilities. Hamilton replied ·that' it did riot: I ,am not ready to ·say that [the President] has any 9ther power than merely to employ ships 6r convoys, with a~thority to repel force by force (but not to cap~u~~) and to repress hostilities within our waters, including a marine league from our coasts. Anything beyond this must fall under the idea of reprisals, and requires the sanctions of --that department which. is to .d~clare_ ?.r make war. 21 Harold C. Syrett, ed., The Works of Alexander Hamilton, 461-62 ·ci974) (emphases in original). In sum, then, the practice and statements of Washington, Madisqn, Jefferson and _Hamilton. - - the most important Framers to hold positions ~n the Eiecutive Branc~ in the period directly afte~ the. adoption of the Constitution -- firmly suppprt the view that, without· congressional authorization, the President ha~ very limited power to order the use of military force. See also Holtzman v. Schlesinger, 414 U.S. 1304, 1311-12 (1973) (Marshall, Circuit J.) ("as a matter of substantive constitutional law, it seems ·likely that the President may not -wage wa~ without some form of congressional approval -- except, perhaps, in the case of a pressing emergency or when the President is in the process of extricating himself from a war. which Congress once authorized."); Letter to Sen. Edward M. Kennedy frpm 127 Law Professors (Jan. 2, 1991) (stating ·tha~ "[t]he Constitution thus requires that the President meaningfully consult with ·Congress and receive 'its affirmativ~ authorizat·ion before engaging in acts of war."). b. Undeclared War There is no notion in the record of the framing and the ratification of the Constitution that the power to "declare War" wap limited only to. a formal declaration of hostilities. Indeed, one of the strongest advocates of executive power at the time, ,Alexander Hamilton, told the ratifiers of the Constitution that such formal· declarations had f·allen into disuse. The Federalist No. 25, at 161, (J. _Cooke-ed. 1961). See also Sofaer, War, Foreign Affairs and Constitutional Power at 56 n.* (in the century preceding the Constitution "wars were frequent, but very seldom declared"). The framers provided for legislative devices o&he~ than declarations of war as means of authorizing and legalizing armed combat between this country and a foreign power. The text of the - 24 - LIMITED OFFICIAL USE 0 0 LIMITED OFFICIAL ,USE Constitution itself reflects this fact. Article I, section 8, clause 11 empowers Congress not only tb !'declare War" but also. to issue "Letters of Marque and 'Reprisal." ·The ,1atter prov:iso enables Congress to authorize limited wars.and mili~ary expeditions conducted by non-governmental forces or privateers acting uhder governmental commissions. See 1 Wm. Blackstone·, Comme'ntaries on the Laws of England,. 250-51 (1st ed. facsimile, U. Chicago !97~) ("t!1e pr~rog~tive of granting [letters of marque and reprisal] is nearly related to, and plainly derivea from, that other o~ ·making war; this being indeed qnly_an incomplete state of hostilities, and generally ending in ~· ,formal: denunciation of war.") .. 17 Thus, the framers seem to· have. _ provtded for both conditional and unconditional authoriza·tions of· war, wpich in turn may be conduct~d either by public or by private· forces acting under a governmental co~ission. See LofgrE¥n, 8.1 Yale L.J. at 699-700. The early case law corroborates the view that Congress may authorize warrnaking by a variety of mea~s other than forina:l 17 The "Letters of marque and reprisal" was apparently -intended to ensure that this po~er would not be considered an inciden't of the Commander-in-Chief authori:ty: In its d~aft con.stitution the Comrnittee of Detail forbade· the individual states to grant such lette;-s but failed to indic,ate ,whe~e the power, shoµld re.side. Thus ·it might conceivably be regarded ~s a ,mere ·adjunct to the power of th~ commander in ~hief. To fores~~ll th~ possibility of sµch an interpretation, Elbridge Gerry, who had spoken out . ' . . against empowering· I the • Executive alone .to declare War,.' brought forward ... • a proposition to add to the.l;ist of legislative pow~rs ·that of granting letters .of marque and reprisal. On the 5th of September.the Convention voted without a dissenting voice to make this new _p~rase part of the clause dealing .with a declara~·~o~ of war. A•; Bester, Separation Of Powers In The Domain Of Foreign Affairs: The Intent Of The Constitution Historically Examined, ·s Seton Hall L. Rev.· 527, 610 ('1974) (footnotes omitted; emphasis in. original)'. Thus, t~e clause underscores the .President Is ' inability to initiate war withqut congressional authorization. For .a recent discussion of the "Letters of marque and rept).sal ii clause I and tne practice under i~, see Jules ·Lapel, Covert War and Congressional Authority: Hidden·War•and Forgotten Power, 134 U. Pa. L. Rev. ·1035, 1_058-69 (1986). • • - 25 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE declarations, and may subject the conduct of such "wars" to a variety of lirnitations. 18 In Bas v. Tingy. 4 U.S .. (4 Dall.) 37 (1800), the Supreme Court recognized, in seriatim opinions, that legislative enactments other than formal declarations of war could validate hostilities between nations, such as had occurred in this country's first war, the Naval War of 1798-1800. Justice Bushrod Washington's opinion, for instance, distinguished "perfect" wars from "imperfect" wa~~ tl'l~t ·w~re _"lirni_ted as to places, perso_ns, and things, 11• in which "those who are· authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, ft is public. war ... ;-" Id. at 40 (emphasis in -original);_ cf. Miller v. The Ship Resolution, 2 U.S. (2 Dall.) 19, 21 ~F~d~ ct. App. 1782) (noting that international law recognized both general and limited war).· Justice Chase opined: "Congress is empowered to declare a general war, or congress may .wage a limited war; 1 imi ted in place, in objects., and in time. 11 Bas v. Tingy. 4 .u. s. at 4·3. •Justice Paterson, a framer from New Jersey, also posited this distinction, stating that "this modified [i.e., 'imperfect'] warfare is authorised by the constitutional authority of our ·country ... As far as congress tolerated and authprised the war on our p~rt, so far may we proceed in hostile operations." Id. at 45.+ 9 Similarly, in Talbot v. Seeman (The Amelia), 5 U.S. ·(1 Cranch) 1, za (1801), Chief Justice·Marshall, writing for the Court, observed: The whole .powers of war being, by the Constitution of the United States, vested in congress, the ·acts of that body can alone be resqrted to as guides in -this inquiry 18 One early example of a congressional authorization of force ab.sent a declaration of war is· an act passed in 1795 that authorized the President to call- forth the militia "whenever the Un~ted States shail be invaded, or be in imminent danger o~ invasion." Act of Feb. 28, 1795, ch. 36, § 1, 1 Stat. 424. See also Raoul Berger, War. Foreign Affairs. and Executive Secrecy. 72 Nw. U. L. Rev. 309, 322 (1977). • 19 The Congress that authqrized President John Adams to t~ke mi~itary·a.ctions against the French in "imperfect" war consi:'dered in Tingy also displayed a sophisticated awareness' of the variety of l,egal forms available· for legalizing hostilities, and of the advantages and disadvantages of a "declaration" of war. See 8 Annals of Cong. 2119 (July 6, 1798) (remarks of Rep. Sitgreaves). Statutory aut;hQ;-;zat!<:>!! ;o_;-_"_~imited" hostilities may be fot!nd even in current law. See 22 U.S.C. § 1732 (President may "use such means, not amounting to acts of war., as he, may think. necessary and proper'! to obtain release of captive U.S. citizen). - 26 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE [as to whether the seizure of a French ship was lawful]. It is not denied, nor, in the course of the argum.ent, ·has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilit·ies, in which case the laws of war, so far as they apply to our si~uation, must be noticed. Later cases similarly recognize that Congress may validate executive warrnaking by a variety of devices. In the Prize Cases, 67 U.S. (2 Black) 635 (1862), the Court upheld Ptesident Lincoln's blockade of the Confederacy both on the ground that the President hac:C pre~existii::ig stab.fr:ory authority· to order such a measure,. id·. at 668 (citing 1795 and 1797 statutes .authorizing the President to use force in case of invasion by foreign. nations, and to suppress insurrection against the government of a state or of the United States), and on the ground that Congress had subsequently ratified his acts_, id. at 670 {"If it were￾necessary to the technical existence of a war, th~t it should hav~ legisl~tive sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861," including legislation expressly purporting specifically to ratify .the President's acts) . • , ,In Orlando v. Laird, 443 .F. 2d 1039 {2d Cir.) , ~- denied, 404 U.S. 869 (1971), the Second Circuit was confronted with a challenge by several members of the armed forces to the constitutional sufficiency ,of the legislative authority r~lied upo~ by the Executive i~ waging war in V~etnam. The court concluded that the choice of legislative formulae -for authorizing such military operations was a political question committed to the other branches. It also stated: [NJ either the language nor ~he purpose underlying that provisipn [the declaration clause] prohibits ~n inference of the fact of authorization from such legislative action as we have in this instance [military appropriations acts]. The framers' intent to vest the war power in Congress is in no way defeated by permitting an inference of authorization fro~ legislative action furnishing the manpower and materials of war for the protracted military- operations in Southeast Asia. Id_. at 1043. ~ also Alire v. United States, 1 Ct. Cl. 233, 23·a (1865), rev'd .on other grounds, 73 U.S. (6 Wall.) 573 (1868); Marks v. United--States, 28 Ct. Cl. 1'17, 170 { 1893) , aff 'd, 161 U.S. 297 (1896). - 27 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE We believe that these authorities demonstrate that a formal "declaration of war,. 11 as that term is ordinarily now understood, is not a ·prerequisite to a constitutional exercise of 'the executive's warmaking power. See Note, Congress. the President. and the Power to Commit' Forces to Combat, 81 Harv. L. Rev. 1771, 1801-02 (1968). Congress may authorize, or ratify, hostilities by other means. At -the same time, however, the authorities con~irm that some form of legislative authorization (or ratification) ·rs-needed in most cases if the executive is to undertake hostilities in accordance with the Constitution. In United States v. Smith, -27 F~ Cas. 1192 (C.C.D.N.Y. 1806),, (No. 16, 3A2 )_,, for example,, Circujt Justice J?ate~s<:m, himsel_f- _an_ important framer, denied that the President 11possess[es] the power of making war ..... That power is exclusively vested in congress." Id. at 1230·. He suggested that the Presiden:t ~y by the "law of· na~ure" "repel an invadj.ng foe~ But to repel aggressions and invasi9ns is one thing, _and to commit them against a friendly power is another." If the United States is not in a de facto or de jure state of war with another nation, "it is t!'ie exclusive pro:y-ince of congress to change a state of peace into a state of war." Id. 3. The President's Constitutional Authority to Use Force ·That the President does have some inherent authority to µse force without prior authorization from Congress is recognized by § 2.(·c) itself. The WPR grants the President, no additional , authority to use force, see§ S(d) (2), yet states that the . Presiden_t h~s authority, absent a declaration of war or specific, statutory authorization, to use for~e in 11a national emergency , created by attack upon the United States, its territories or possess-ions, or its armed forces. 11 WPR § 2 (c) (3) . • The President's power to repel sudden attacks was, as discussed above, all9wed by t_he f;-amers, has been repeatedly recognized sin~e ',then, see, ~, Massachusetts v. Laird, 400 U. ~ .. 886, ,.893· . . n. 1 -( 19·70 r .(Douglas, J., dissenting from denial of leave to file bill c:>'f complaint); Mitchell v. Laird, 488. F.2d 611, 613 ,(D.C: Cir. 1973); Massachusetts v. Laird, 451 F .. 2d 26·, 31 (lst-.Cir .. 1971)~ in~ does· not ~ppear.tb be seriotisly disput~d. Both the -Comptroller General and the courts have ~ecqgnized that th_e. :president has s'ome implied authority to use ;force under the Constitution, such as the authority to protect.Arriericahsi' abroad·: ~-, ~, 55 Comp. Gen. at 1084 ("the President does have some authority to protect the lives and property of. Americans·, abroad .even in the absence of specific congressional autndrization"); In re Neagle, 135 U.S. 1:, 63-64 ('1-890) ·camong the President's "rights, duties and obligations growing out of the Constitution itself, our international relations, and all the - 28 - LIMITED OFFICIAL USE • 0 LIMITED OFFICIAL· USE protectio~ impliec;l _by the na_ture of the government under the Constitution" the obligation. to protect American citizens· • abroad) . 20 • • Even supporters of ~~e WPR agree that the list in§ 2(c) -- d~claratiqn of war, ~tatutory authorization, or attack on the United States or its armed forces -- is too narrow. Professor Ely,. fqr:· example, states that " [v] irtually everyone agrees that .[§ 2 (c) l should have included the· protection of- American citizens as one of the j1:1stifica.tfons. for presidential mili~ary acti~n. 11 Ely, 88 Colum. L. Rev. at 1393; see .also Glennon, Constitutional Diplomacy at 96,,~. ~e_nator Biden cites rescuing Americans and II f orestal l·ing an imminent attack" on ·the United 'States_ - - • both included'in the Senate version of the WPR -- as items that "most -constitutional scholars would p·lace. under the h~ading of the • President's established c6nstitu~ional a~thority and • responsibility.,'' Biden & Ritch, 77 Geo. L.J. at 386. Professor Sofaer argued· that t~e President has at least the authority. granteq to the Stat~s in Article I, section 10, cl. 3· to -engage in -war if "actually invaded or iri such ·imminent Danger as will not admit of delay,. " U.S. Const. art. I, § 10, cl. 3. Sofaer, war. Foreign Affair~ ~nd Constitutional Power at 4. 21 • 20 · · · • • In Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860) (No. 4186), Justice Nelson wrote that ''[i]t is to [the. President that] ·the citizens abroad must lo9k for protection of person and of- property. . ·. . Now, as it respects the interposition of -the executive abroac;i, for the· protectiqn of· th~ lives 9r propert'y of the citizeµ, the. duty must, of necessity, rest in the discreti9n of the President." Id. at 112. Cf-. Slaughter House Cases, 83. U·.S. (16 Wall.) 36, 79 (1873) (including among.the privileges and immunities of citizens of,the Uriited States the right "to demand the care and pr:otection of the ,Federal government over his. Ii_fe, l~berty, -and property when on the high seas or within the j_urisdiction of a f'oreign government") . 21 • • But g. Berger, 72 Nw. U. L~ Rev. at 322.. Following. the maxim of constructio.n expressio ,unius exclusio est alterius, Berger argues that the lack of an express grant of such power to the President suggests that such power was withheld from him. In 1 ight of. the apparent intention of the framers to allow the President to respond at least to an actual attac~, as opposed to an imminent.one, the relevance of that maxim here is dubious. Further, the authoiization to the States is ~~m ~~9~:Q!;.;Q~-- ;~ ;he_ general prohibition on their engaging in war, a prohibition that is not expressly applied to the President. - 29 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE Historically, Presidents have often assumed the power to project armed force abroad for purposes other than to defend against attack or to protect Americans. Altogether, the United States has employed its armed forces abroad over 200 times in its history. See United States v. Verdugo-Urquidez, 494 U.S. 259, 273 (1990) (citing Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1989 (E. Collier, ed. 1989)). - See generally Abraham D-~·sofaer·, War,·Fo-reign Affairs and Con~titutional Power: The Origins (1976)~ In at least .i2s of those instance·s,· da,ting back to 1798, the President used the armed- forces without .obtaining _e:xpress authorizat~on f _rom Cong res~. See Leonard C. Meeke.r, L~gal Adviser; Dept. of State, The Legality of United States ~articipation in the Defense of Vietnam, 54 Dep't St. Bull. 474, 484-85 (1966); see also Office of the Legal Adviser, Dept. of State, "The President's Authority to Use the Armed Forces to Evacuate U.S. Citizens and Foreign Nationals from Areas of Hostilities" ("State Dept. Evac.uation ~emorandurn") , reprinted in 1975 l{earings at 29-30; "Authority of the President to Repel the Attack in Korea, 11 23 Dep't St. Bu~l. 173 (1950) . 22 • Any attempt to identify all the t~.ypes of circurnstanc-es in which the Ex~cutive ha~ deployed or-might assert ·inherent constitution~l authority to deploy pnited States Armed Forces would probably be insufficiently indlusive and potentially inhibiting in an unforeseen crisis. See 8 Op. O.L.C. at 274. Nevertheless, .some efforts have been made to"itemize examples of such .situations. In 1975, the Legal Adviser to the D~partment of State list.ed six non-exclusive situations in which he contended the President had constitutional authority as Commander in Chief to dir~ct .United States Armed Forces into combat without specific authorization from Congress: 22 Professor Glennon notes that many of those uses of- force were relatively minor and that they were also often subje9t to vigorous opposition in Congress. Constitutional Diplomacy at 80. Moreover, the frequent occurrence of unauthorized action by a p_QP: ~ !f~! _ b:~nch _do~s not demonstrate that the pract_ic_e is constitutional. See Youngstown Sheet -& Tube eo. v. Sawyer, 34~ U.S. 579, 588-89 (1952); cf. INS v. Chadha. 462 U .. S,. _919, 959-60 (1983) (Powel~, J., conc-µrring in jud~ent) (noting repeated instances of legislative veto). - 30 - LIMITED OFFICIAL USE 0 0 LIMITED OFFICIAL USE [1.] to rescue Americans[;J23 • " 23 See Letter to_ the President from Attorney General William P. Ba.r.r (Dec. 4, 1992), reprinted in 16 Op. O.L.C. 6 (1992) (preliminary print) (constitutional authority extends to the "protection of the lives of U.S. citizens and others in ·Somalia"J-; "Authority of the P.resident; __ to U_s~ U:nited States Mil•itary Forces for the Protection of Relief Efforts in Somalia, 11• 16 Op. O.L.C. 8, 9-10 (1992) (preliminary print); "Presidential Poy;ers. Relating to the Situation in Iran," 4 Op. o.~.c. 115, 121 ,(1979) ("It is well established that the President has the constitutional power -as Chief Executive and Commander-in-Chief to protect the lives and property of Americans abroad."); Legal Opinion of Lloyd Cutler, Counsel to the President, reprinted in 19_80 Hearings ·at 48; id. at 40, 4? (testimony of Acting Secretary of State Warren Chri~topher recognizing inherent authority to rescue citizens abroad, 11a long recognized power under international law"); "Training of British Flying Students in the United States, 11 40 Op. Att'y Gen. 58, 62 {1941) {11 [T]he .President's. authority has long been recognized as extending to the dispatch of armed forces outside of the µnited States, eithet on missions of good will or rescue, or for the purpose of protecting American lives or property ·or American interests.") (Attorney ·General Jackson). After leaving the presidency and before becoming Chief Justice, President Taft observe~: It has _been frequently nece$sary for the, President to direct the landing of naval marines from United States vessels in Central Ame~ica to protect the American consulate- and Americ~n citizens and their property. He has done this under his general power as Commander-in￾Chief. It grows not out of any specific act of Congress, but out of that obligation, inferable from the Constitution, of the government to protect the rights ·of an American citizen against foreign aggression. William H. Taf·t, Our. Chief Magistrate and His Powers, 95 {1916). Taft, however, subscribed to a much oroader view of the .President Is war power: "Under this [the ·commander in Chief power], [the President] can .ord~r the army and navy anywhere he ~ill, if the app~opriations furnish the means of transportation." Id. at 94. - 31 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE [2.] to rescue foreign nationals where doing so facilitates the rescue of 'Americans [;] 24 [3.] to pro~ect u· .. s. Embassies and Legations'[;] 25 [4.] to suppress civil insurrection in the United States[;J 26 [5.] to implement and a~inister the terms of an armistice or cease fire designed to terminate hostilities involving the United States[;J 27 and [6.] to carry out the terms of securit'y commitments contained in treaties. 28 24 See State Dept. Evacuation Memorandum, reprinted in 1975 Hearings at 31 (explaining that successful evacuation of American citizens from Vietnam required the airlift of substantial numbers of Vietnamese as well); 55 Comp. Gen. at 1090-91 ("the President must be accorded considerable operational discretion" in e~acuation of Vietnamese nationals}.· Gf. In re Neagle, 135 U.S. at; 64 (citing as within the President •.s implied powers under the Constitution the rescue by threat of force of a foreign national who, "though not a naturalized citizen of the United ·States, had in due form of law,made his declar~tion of intention to become a citizen"). 2 5 ~ Hamilton v. Mcclaughry. 136 F. 445, 450 (D. Kan. 1905}. • 26 See "President's Power to .Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders -- Little Rock, Arkansas·, 11 41 Op. Att iy Gen. 313·, 326 (1957} (concluding thcl;t the President had authority to suppress domestic violence and the obstruc~ion of a• Federal court's school desegregation orders based "both [on his] powers as President under ~he Constitution and the powers vested in [him] by the Congress under Federal law");™ also Ex parte Siebold, 100 U.S. 371, 395 (1880}; In re .Debs, 1?8 U.S. 564, 582 (1895). 2 7 ~ Holtzman v. Schlesinger, 414 U.S. at 1311 (Marshall, Circuit J.) (finding that Presiderit may not need prior congressional approval "when [he] -is in the process of extricating himself from a war which Congress once authorized."}. 28 The use of force to carry out the terms of a treaty ·stands on a somewhat different footing from the other examples in ( conti_nued ... ) - 32 - LIMITED OFFICIAL USE • G) LIMITED OFFICIAL USE 1975 Hearings at 90 (footnotes added); accord, 8 Op. O.L.C. 274- 15. The L~gal Adviser went on to state, however, that the Adrnini"stration did "~ot believe ,that any s"ingle def init1onal stat~ment can clearly encompass every conceivable situation in .which the Presiden.t' s Commander in Chief authority could be. - exercised." 1975 Hearings. at. 91. _See also Epy, 88 Colum. L. Rev. at 1394 (Leigh's list is not "recklessly open-ended, as· it tru4-y is iropossible t.o predict and specify all the possible .~ituations in which the President will need to act to protect the nation •·s sec'urity but will not have. time to consult Congress. 11 )' 28 ( •- d) ... continue th~ .State "Depart~ent's list. bn the orie -hand, a justification .for usfng force that is based on a treaty would not rely on -the President•~ inherent powers alone, because a treaty must be approved by the Senate. Thus, a treaty would provide (limit_ed)' l'egislative. authorization for the President's action. On the • other· hana_, the 'President and the ~enate I even acting together, cannot deny the House of Representatives its legitimate constitu~ional role in deciding whether to commit the nation to wa·r.. As Pro_f essor Tribe. points out, '-' [w) hether these [mutual defense] trea·ties can serve as a predicate for executive deployment of military force has npt been resolved, II but II [i] t' se_ems unlikely that, . in the absence of a decl~ration of war by Congress., a p~olonged military operation would be sanctioned by suc_h a treaty." _Laurence H. Tribe, American Constitutional Law, 23.3 (2d ed. 1988); ·see also North Atlantic Treaty: Hearings Before the Senate Comm. on Foreign Relations, 81st .Cong., 1st Sess. 11 (1949) (.statement of Secretary of State Dean Ach~son: the ~ATO treaty·would not automatically put the United St~tes at war ~f another sig~atory wer~- at~acked; 11 [u)nder our Constitu￾t·ion, t_he Congress alone has the power to dec1·are war. 11 ) • How~ver, Piofess6r Tribe finds it ''[m]pre plausiblj 11 to suggest that "a collective defense treaty- justifies president_ial use of fo'rce in support of a harried ally until Congress has had ample time to determine whether it fa~ors A,inerican military involvement iri tlle conflict," id. at 233-34, and we agree that treaties may sanction the Pre_side_ntial use of force to that • extent. We need not enter here into the question whether any particular t:;-eaty is self-exec;uting or P":lri:>orts to c~rranit the United States to war. For a variety of views, see Thomas M. Franck and Fa:i.za Pat.el, UN Pol ice Action in Lieu of War:'_ "The Old' Order tnarigeth'', 85 Am. J. 'Int •·1 ·r;. 63 -('199-1) ;, Micliael 'J. - 'Glennon, The.Constitution and Chapter VII of the United Nations Charter, 85 Am. J. tnt-'l L·. 74 (1991); Trib~, su~ra:, at 233, n.14. - 33· - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE Although we believe that the Constitution ~oes grant the President some implied authority ~o use force in the absence of congressional authorization, including those listed above, it would.be unwise to.try to specify in advance all of the situations in·which the President would have that authority.29 Here, as in much of the WPR, it is better to ,leave unclear where the line· ultimately should be drawn as a constitutional matter. The exte~t of th~ P~esident's power will often 9~p~nd on the particular circumstances of the proposed use,of force. However, the constitutional text, the evidence of the framers' intent, and the, practice of past Pr~sidents and Congre~ses, suggest a number of factors that should -be considered in assessing whethe:J;" a !'war" exists withi~ the meaning, of article I, § 8, cl. 11, so that • prior ~ongressional authorization. for the proposed use of force would be necessary. Of course, whether the President is authorized tq use force will not depend on any mechanical test of the ~umber of factors present, or arguably present. Rather, the factors highl·ight considerations that will make the existence of. such au~hority more or less likely to, exist. Without purport_ing ' .to prov~de an exhaustive list, we believe that the factors to be taken into accburit will include: (1) whether the proposed action is likely to be extensive in scope and duration, (most on Leigh's ,list are short-term and do not involve many troops); (2) whether the action is consistent with or in furtherance of other laws; • (3) whether the action is in its nature defensive, of American citizens, territory or property; .and (4) .whether the military 29 Iii regard to proposed legls.lative ·alternatives to the WPR, i~ is important to consider- not only the situation~ listed, but ·the restrictions placed on the President's authority to use force in those situations. For example, the list of situations in Senator Biden's proposed Use of Force Act may be broader than the Cqnstitution would require, but it permits the ~resident to use force only "if every effort has been made to achieve the objective ... by means other than the use of force." 77 Geo. L. J. -at 398-99 ~ That cla·use presents a ser,ious problem because, coupled with the proposal's judicial review provisions, it would invite a court to second-guess the President's policy choices among his constitutional options. What constitutes "every effort"? In the case of President Carter's rescue mission to Ira~, for ixa~m~i~,-~.!! :;~;9~ ... sa!g_th~~-~h~_Pr=s~. end. As noted above, however, we are not .persuaded by the argument against § 5 (b) ·based on Chadha. - 53 - LIMITED OFFICIAL USE • 0 LIMITED OFFICIAL USE of the Nicaraguan border); see also Louis Fisher, How Tightly Can Congress Draw the Purse Strings?, 83 Am. J. Int'l L. 758, 763' • (1989); 55 Comp. Gen. at 1082-83. The State Depar1;:m~nt has conceded. that Congress may., at least in some circumstances, use its appropriations power to terminate or prohibit military operations. In 1975, the Legal Adviser stated that Congress cou~d refuse to proyig~ fu;t~~~ appropriations for a military operation, but stated that Congress could not restrict the use of funds alr~ady appropriated. See 1975 Hearings at 89-90, 92. He did not explain the rationale. In terms of the Constitution,. we .see no. reason .why Congress. ~-- if. it could permissibly refuse to appropriate more funds -- could not enact a supplementary appropriations act amending the prior act to withdraw funds for the disputed activity. See "Appropriations Limitation for Rules Vetoed by Congress," 4 Op. O.L.C. 731, 732 (1980) ("Congress can undoubtedly amend a .... ··:r,:,9Lst•~ preyiously enacted appropriations act to impose additional limitations on the use of appropriated funds.") . In more recent ' statements, the State Department has not suggested a distinction betwee~ previously appropriated and later appropriated funds. I~ 1988, for example, the State Department Legal Adviser reaffirmed Congress' power of th.e purse: "I cannot question Congress' power tp use the expenditure of funds in principl'e. to cut off virtually anything Congress does not want to occur." See.1988 Senate Hearings at 148_; see also 86 Dep' t St. Bull·. at 7·1 ( "Our history amply demonstrates that Congress has adequate means, through the budgetary process· and oth~rwise, to provide an effective check on presidential "power to employ military force.") (emphasis ad9ed) . 46 • There are limitations .on Congress' control of the purse strings. Some limits are expressed and clearly relate to appropriations. See U.S. Const .. art. :j:I, § 1, cl. 7 & art. I~I, § 1 {providing that the compensation of the President and judges may not be diminished while in office); see also Glenno~, Constitutional Diplomacy at 286. But there are other limits as well. For example, it seems obvious that· Congress is limited by the .Bill of Rights in the ·exercise of its spending pow~rs. See Kate Stith, Congress' Power of the Purse, 97 Yale L.J. 1343, 1350 (1988). It also appears, that C~ngress must provide some funds 46 The effectiveness of such a move remains debatable. Some observers charged that President Ford's actions in the Mayaguez affair violated a statute restricting the use of funds for the conflict· in Indochina~.-- ·special 'study·, supra, at 216. But· see 55 Comp. Gen. 1081, 1094 (1975) (concluding that funding restrictions did not bar the rescue mission). - 54 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE for the other branches to fulfill their constitutional duties: "Congress is obliged to provide public funds for constitutionally mandated ac~ivities -- both obligations imposed upon the government generally and independent constitutional activities of the President." Id. at 1350-51 (citing, as examples of activities that must be funded, the President's receiving of ambassadors and making treaties). See also Fisher, 83 Am. J. I~t•l_L. at 762; Lett~r from Louis Henkin to Rep. Louis Stokes, at 2-3 (Mar. 3i, 1987), reprinted in Oversight Legislation: Hearings on S. 1721 and S. 1818 Before the Senate Select Comm. on Intelligence, 100th Cong., 1st Sess. 115-16 (1987) (-"Where the President hcis _i~d~pe~d_e~t __ ~On$_t_ituti9na~ c1:uthority to act, Congress is bound to. implement his actions, notably·by· appropriating .the- nec_essary funds. Where the President's authority to act is _not exclusive but is subject to regulation by Congress, Congress may prohibit or limit the President's activity directly by legislation, or indirectly.by denying him funds or by imposing conditions on the use of funds appropriated."). Cf. United States v. Lovett, 328 U.S. 303 (1~46) (striking down a law • denying compensation to named individuals as a bill -of attainder); 41 Op. Att'y Gen. 507, 525-30 (1960) (Congress may not condition appropriations on the President disclosing a documen_t that_ he has. determined to be executive privileged) . 47 - In the military context, therefore, Congress. could not, for example, "tell tqe Commander in Chief how to run a particular tactical exercise by threatening to cut off funds." 1988 .Senate Hearings at 148; see also "The President's Compliance with the - 'Timely Notification' Requirement of Section 50l(b) of the National Sec_urity Act," 10 Op. O.L.C. 159, 169-70 (1986) (Congress "may not cittach conditions to Executive Branch appropriations that requ.ire the President to relinquish any of his constitutional discretion in foreign affairs.") . Similarly, ' it seems unlikely that Congress cou_ld cut off· funds in a way that would place the armed forces in unreasonable danger upon ,withdrawal. Subject to such limitations, we conclude that Congress could generally terminate budgetary aµt~ority in order to terminate a use of United States Armed ~orces abroad. 48 47 The Supreme Court has never struck down a use of the appropriations power as an unconstitutional infringement on the President's power. Glennon, Constitutional Di~loniacy at 288. _ 48 Thus, a provision in the .Byrd-Mitche!l-Nunn-Warner'bill barring funding for operations that are not undertaken ccinsistently with the WPR, see, ~' s. 2, 101st Cong_., ~~~ Se~s. § 5 (1989), would appear to be constitutional on its face, although its application might be unconstitutional in some cases. • (continued ... ) - 55 - LIMITED OFFICIAL USE 0 0 LIMITED OFFICIAL USE IV. Justiciability of .Questions of Executive Branch Compliance with the W~r Powers Resolution The legal questions regarding "compliance" with the WPR may be grouped into two general categories, based on two, central commands of the WPR: (A) the requirement of§ 4(a) (1) that the President submit a "report" to Congress when the armed forces are tntro9l}ces} :!,~to hos~ilities; and (B) the requirement of§ 5(b) that the President "terminate•• such use of the armed forces in specified circumstances. A. Compliance with §: 4 (a) (1) ~ - Section 4(a) (1) of the WPR requires the President to submit a ~eport to the Speaker of the House and to the President pro tempore of the. Senate within forty-.eight hours of introducing United'. States Armed Forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." The President's report must specify the circumstances necessitating the introduction of the armed forces, the ·1egal authority under which the introduction took place, and the scope .and duration of the hostilities or involvement. The litigation and commentary generated by the reporting .requirement of§ 4(a) (1) have focused on just one legal issue of compl-iance· - - namely, whether the President has introduced the armed forces into "hostilities" so that he is legally obligated to file the ~equisite report. The following discussion considers the exterit to which the courts would reach the merits of actions brought by members of Congress to force the President to comply wit_h thi.s obligat;.io~. Private persons alm-ost certainly have no right of action µnder the WPR. Sanchez-Espinoza v. Reagan, 770 F.2d 202, .209 (D.C. Cir. 1985). Contra Ange v. Bush, 752 F. Supp. 509,. s·11-12 n.r (D.D.C. 1990). The relevant justiciability doctrines are standing, equitable discretion, political ~estion, and ripeness. 4. 8 ( .. ,. continued) The ,state Department took the view that the funding restrictions o~ th~t bill ate-unconstitutional on.their face because they would imperrnissibly "restrict or usurp the independent constitutional authority" of the President. See 1988 Hearing at .1062-63. ·we do not disagree with the reasoning, cf. 10 Op. O.L.C. 169-70, so much as with the premise. Because we conclude th&t th~ President's iriherent constitutional powers are more narrow, we believe that •Congress has a larger sphere within which it may freely impose restrictions on funding. • - 56 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE Before addressing each of these doctrines individu~lly, we. note that ~hile different courts have rule~ in favor of justici￾ability on various discrete grounds, no co~rt in a case brought under the WPR ·has ever reached the merits. Thus, the Executive Branch, which• has consistently argued against the justiciabi~ity of WPR complian~e issues on all possible grounds, p~eva1led in every case, even if it did not prevail on every single grqund. Accordingly, in a~l sas~s wher~ cqurts may have ruled in fayer of justiciability, the Executive Brancq did hot ·have the opportunity to appeal sue~ rulings to a higher ~curt. 1.. ~tanding Of ·the five. "war powers" cases. decided in the last decade, none r·esol ved tpe questioµ of congressional stand;ng to .enforce the reporting requirement of § 4 (a) (1). The plainti,ff in Ange was a military .offic;er, not a member of. Congress·. Three of the c~ses exp~·icitly preterrnitted t!'le standing ques_tions regarding the WPR. See Lowry v. Reagan, 676 'F. Supp. 333, 337 n.26 (D.D.9. • 1987); appeal dismissed per curia.In, No. 87-5426 (D.C. Cir. Oct. i7, i9~~); Sanc:hez-E~pinoza,· 770 F.2d at 210; Crockett v. Reagan, 558 F. Supp. 893, 901 (D.o.c·. 1982), aff'd per curiam, 120· ·F.2d • 1355 (D.C·. Cir. 1983), cert. denied, 467 u.s: 1251 (1984). The last. case, Del;lums v. Bush, 752 F. Supp. 1141 ·(p.D.C. 1990)_,-.w~s an act ion by ,It\~mbers of Congress un_der the War Powers Clau_se, U.S. ·cqnst .. art. I, § 8, er. 11, to enjoin the P,resident from initiating a~- offe~sive attack against Iraq without a declaration of· war or other explicit congressional authorization. The court upheld th_e. plaintiffs' standing, on, the basis that "membe;s ,of • Congress .plainly have an interest ~Ii protecting t;heir rig~~ to vote 6h matters entrusted to their respective chambers by ·the Constitutiori, 11 specifically 11the right ~o vote .-for or against a declaration of· war." Id. at 11_47. ·This holding does-riot carry over to the§ 4(a) (1) context, because the President's failure to comply .with that· reporting provision .does not deprive members .9f' Congress of any right. t.o vote on declaring war· or requiring the Pr~sident to remove the .arrn~d f_orces from hos~ilities. General .. principles ·of standing supp.art the conclusion that congressmen would not have standing to ·challenge the President•s· aileged failure to comply with§ 4(a) (1). For a plaintiff to have standing, he "must have ,suffered an injury in fact .-- an invasion of a legally-protecteq interest which is (a) concrete· and particularizeq, and (b) a~tual or imminent, riot conjectural or .hypoth_etica1.·" Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (citations omitted). Moreover, "it must be iikeiy, as opposed ·to merely speculative, -that the injury will be redressed by a favorable decision." Id. As explained below, the President's failure to comply with§ 4(a) (1) would not cause - 57 - ·LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE injury-in-f~ct to members of Congress, and it is unlikely that any such injury could be redresseq by a judicial decision. ·Under certain statutes imposing legal duties on executive officials, members of Congress may conceivably h~ve legally￾protected interests, even if members of the general public ~o nc:>t ._ For instance, a statute .that prevented the Department of Housing and Urban Development (HUD) from using funds for reorganizations without the prior approval of the Committees on Appropriations was held to give a qongressional plaintiff "the right, a_s _a membeJ: <::>f the 0:19~-~e] Appro~~iations Committee, to participate in approval of any reorganization of HUD conducted _before January 1, 1983." American Fed'n of Gov't Employees v. Pierce, 697 ·F.2d 303, 305 (D:c. Cir-; 1982) (per curiam) (refer￾ring to Pub. L. No. 97-272, _96 Stat. 1160, 1164 (1982)). More recently, the District of Columbia Home Rule Act, which required the Chairman. of the D.C. Council to transmit legislation enacted by the D.C. Council to the Speaker of the House·and the Pr~sident of the Senate, was found rio confer a ~ight on members of Congr~ss ' "to consider [an enactment of the D.C. Council] before it took effect." Bliley v. Kelly. 793 F. Supp. 3·53, 355 (D.D.C. 1992) (refer:;-ing to D.C. ·code § 1-233 (c) (1)). These rights constituted legally-protected interests, the invasion of which would cause the injury- in- fact nec~ssary ·.t:o ·create standing. • The duties imposed by the statutes in Pierce and Bliley may be analogized to the. duty imposed by§ 4(a) (1) on the President to submit reports to. Congress. Therefore, the issue is whether each individual member of Congress has a corresponding right, ors: a legally-protecied intereit, to receiv~, vi~ the corigressional leadership, a report from the President when the conditions set forth in§ 4(a) (1) are met. To paraphrase t~e Supreme Court's formulation of the question in a recent case where the plaJntiffs. -sought a private right of actiqn: "Did ·congress, iri enacting the [WPR]', unambiguously confer upon the [congressional] benefi￾cia~ies of the [Re~olution] a right to enforce the requirement that" the President submit a· report to Congress in the specified circumstances? Suter ·v. Artist M., 112 S. Ct. 1360, 1367 (1992). If it did not, then the congressional plaintiffs- have no legally￾protected interest that a failure to comply with the reporting requirement would invade. Thus, members of Congress would not suffer the injury-1n-fact necessary to have standing to enforce § 4(?t)(l). • Nothing in the text of the WPR or its legislative history indi.cates that the Resolution con-fers a private right of ac~iqg on Congress as a whole, its Houses, or its individual members. The only language in the entire WPR that ·even remotely refers to the courts is the separability ·clause of§ 9, which contemplates - 58 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE that provisions of the WPR or applications thereof might be "held invalid." This language carinot be said "unambiguously" to confer a private right of action on Congress or its individual members. In-addition, given the WPR's subject matter -- the ~onstitutional authority of the President and C9ngress with respect to warrnaking -- it is highly doubtful that Congress intended to involve the courts in the Resolution's operation. Moreover,. in view, of the concerns that ?n~Jn?it~ the political question doctrine (discussed below), we believe that the cou_rts -would be especially hesitant to involve themselves by inferririg a private right of action where the WPR does not create one in explicit terms. For all these reasons, we c,m;iclude that. Cong_re_ss <:lid ~o~ ~n~ig~9u~ly confer on itself or on its members a right to enforce the duties imposed on the President by § 4 (a) '(l). Cf. Lowry, 676 F. Supp. at.339 n.42 ("Although the Court does not decide the question ... , this Court believes that the sponsors of the Resolution did not contemplate a private right of action to enforce secti•on 4(a) (1) ."). Contra Ange v. Bush, 752 F. Supp. at Sil n.1 ("The War Powers Resolution permits a private cause of act·ion under Cort v. A~h, 422 U.S. 66 (1975).") .49 - There is no other apparent basis for finding ,injury-in-fact to. members of Congress by virtue of noncompliance with§ 4(a) (1). A failure by the President to comply with the reporting require￾ment cannot be said ·to "nullify" any past votes by the-members, Kennedy v. Sampson, 511 F.2d 430,. 433 (D.C. Cir. 1974)-, nor, as discussed above, can it be said t6 deprive them of any right to participate in or vote on matters in the future, Riegle v. Federal Open Mkt. Comm., 656 F.2d ,873, 877-78 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). The congressional plaintiffs would thus, .be forced to allege "generalized, ;amorphous fnjuries due to the ,conduct of the Executive" or make "generalized cc;,mplaint Cs] that [their) effectiveness is diminished by allegedly illegal activities taking place outside the legislative forum," neither .of which is sufficierit to confer standing on members of Congress. United Presbyterian Church v. Reagan, 738 F.2d 1375, 1382 {D.C. Cir. 1984). 49 Even if§ 4(a) (1) conferred a private right of action on the Congress as a whole, or on the House and Senate separately, we believe that no individual member could, without additional authorization, properly assert the rights of those _bodies. ,Cf. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 {1986) ( "Generally speaKing; members of col·legial bodies do not have standing to perfect an,appeal the body ~tself has declined to take. "> . - 59 - LIMITED OFFICIAL USE • 0 ( LIMITED OFFICIAL USE 0 Even if members of Congress suffered injury-in-fact, how￾ever, it is unlfkely that their injuries could be redressed by the judgment of a court. To redress the members' injuries, the court would have to order the President to submit the report • required by§ 4(a) (1). As recently recognized by a majority of the Supreme Court, an order against the President in his official capacity is generally beyond the constitutional power of the courts. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2776-77 ( 1992) ( four-Justice plurality) (dictum) (" [I] n general 'this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties. '") (quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1867)); id. at 2788 (Scalia; J., concurring in part and concurring in the judgment) ("I think it clear that no court has authority to direct the President to take an official act."). But see Mackie v. Bush, 809 F. Supp. 144 (D.D.C. 1993) (enjoining the President from removing members of the U.S. Postal Service Board of Governors), appeal filed, No. 93-5001 (D.C. Cir. Jan. 7, 1993) .so We cannot claim to be completely certain that a majority of the Court would follow Mississippi v. Johnson in every case in which the relief sought was an ~njunctive order against the President in his official capacity (although we do believe that the Court would likely deny injunctive relief that interfered with the President's ability to undertake major military or diplomatic initiatives). Thus, there is some degree of risk that, in an action seeking to enforce the reporting requirement of§ 4(a) (1), where the granting of an injunction would not seem ·to interfere directly with the President's war powers, a court might order the President to file a report. Assuming, however, that courts would decline to ~nter judgment against the President (who is the only Executive Branch officer on whom the WPR imposes duties) to force him to comply with§ 4(a) (1) by filing a report, any injury allegedly suffered by members of Congress could not be redressed. For this reason, and·because the WPR does not confer a private right of action to enforce the reporting requirement of § 4(a) (1), members of Congress would not have standing to enforce that provision. - 2. Equitable Discretion The D.C. Circuit's decision in Riegle, while granting a Senator standing, invented a new doctrine to justify a refusal to SO Although the plurality in Franklin did not discuss this point, Justice Scalia also concluded that courts "cannot issue a declaratory judgment against the -President,,-, 112 S. Ct. at 2789, and his conclusion appears sound. - 60 - LIMITED OFFICIAL USE • LIMITED OFFICIAL USE adjudicate the merits of his claim. The doctrine of "equitable discretion" (also sometime·s .called "remedia~ discretion") :.may, be applicable to actions to enforce§ 4(~) (1). The doctj~ne states: "Where a congressional plaintiff' c~:n~ld obtain substantial relief ·fro,in his fellow legislators through the enactment, rep:eal, or amendment of a statute, this court should exercise its equitable . discretion to dismiss the legisl?,tor' s action. 11 Riegle, 656 ·F. 2d at 881. See also Moore v. U.S. House of Representatives, 733 F'.2d 946, 954-56 (D·.C. Cir. 1984)., cert. denied, "469 U.S. 1106 (1985). • Given ,this formulation of ·the doctrine, .it ~oes not appear immediately applicable in -the§ •4·(a) (1) context. As· pointed out by the court in Dellurns v. Bush, 752 F., Supp. 1141, 1148 (D.D.C. 1990), the decisions di~missing actions on the bas~s of: equitable discretion involved congressional plaintiffs who were either ba'ttling their fellow congressmen or seeking a declaration tpat a statute was unconstitutional. In the former situation, the plaintiffs coµld obtain relief by per·s_u?LdiI!g tl.l~ir coll_eagues to enact, repeal, or amend an interna_l rulE= of Congress., and in th¢ latter situation, to enact, repeal,. or amend a statute. See id. at 1149. By con~rast, members of Congress caill:lqt obtain relief from their colleagues for an alleged violation of§ ·4(a) (1.) by the President. In such a case, the enactment -of a ~·new statute, or the amendment or repeal of an existing.one, would.not'give • the plaintiffs a remedy. Indeed, by hypothesis, they would be perfect~y satisfied with the statute as it is writt~n; they ~ould m~~ely want the Pr~sident to comply· with it. In· other words, the plaintiffs would have a disput~ with the President, not with .their colleagues. The- equit~~le discretio~ 9qctrine ~oul_d no; stand as ·a, bar to resolution o_f the dispute . . Ne\f'ertheless, iri the one c~se that. ·speci_fically co~sidered w_hether the ·equitable discretion doctririe bars adjudication of ar:, · ~cti6n by members .of Congress, to ·,enforce § 4 (a) (1) of the WPR, the .¢o~rt reached th~ opposite·conclusion under the following analysis.: • Although styled as a dispute between the legislative and executive branches of government, this lawsuit evidences and indeed is a by-product qf ~oiiiical disp~ce§ withi~ Congress reg~rding the applicability of"the War Powe~s ·~esolution to the Persian Gulf situation. Before the filing of this laws_uit, several bills to ·compel t~e Presid_ent to invoke section 4 (a·) (1) of the War Powers Resolut·ion ~-~;:~. !Q~;-9d\!£~9 !I! Q9_ggfe§~: : -~ -~ W1!~!! ~~!§- !~~S,).lit was filed, Senator Brock Adams stated that ·he had j_oi~ed as a piain~_if"f both to advance his: subs~antive '." 61 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE position and to resolve a questiop that Congress seemed unwilling to decide. In light of this history, this. Court concludes that plaintiffs' dispute is "primarily with their fello~ legislators." . Lowry v. Reagan, 676 F. Supp_. 333, 338-39 (D.D.C. 1987) (quoting Riegle, 656 F.2d at 881) (footnotes omitted), appeal dismissed per curiam, No. ·01~5426 (D.C. Cir. Oct. 17, l.988). Under this analysis, the applicabil·ity of the equitable discretion doctrine would depend on the particular facts surrounding the lawsuit by mE;m.be_r_s of~o~~re_ss. , • It should be noted that the equitable discretion doctrine, which never gained adoption outside the D.C. Circuit, see,~, Dennis v. Luis, 7-41 F.2d 628, 633 (3d Cir. 1984), may be on the decline even in that court. In one of the last appellate cases that even mentioned the doctrine, the court hinted that it might not survive en bane review: We are fully mindful• ... that this ci~cuit's recently minted doctrine of equitable discretion has uot even been addressed, much less endorsed, by the Supreme Court. Moreover, several members of· this .cour~ have previously expressed concern .over whether equitable discretion represents a viable doctrine upon which to determine the fate of constitutional litiga￾tion. Those concerns, which all members of this panel share·, continue to trouble us. ~ a panel, however, we are of course bound faithfully to follow and apply the law of our circuit. H~mphrey v. Baker, 848 F.2d 211, ~14 (D~C. Cir.) (citation~ omitted), cert. denied sub nom. Humphrey v. ·Brady. 488 U.S. 966 ( 19 8 8) . Given its concerns, the._ cour~ felt compelled to reach the merits as an "alternative" holding·. Id. at 215. See also. Dornan v. United States Secretary of Defense, 851 lf.2q. 450, 451 (D.C. Cir. 1988) (per curiam) (relying on equitable discretion but alternatively dismissing congressional lawsuit for lack of standing because "the 'equitable discretion' formulation has pioved ~lusive in some cases"). • • Distinct from the D.C. Circuit's relatively recent doctrine of equitable discretion, which gqes to the question of justici￾ability, is a more traditional doctrine regarding the discretion￾ary power of .the courts to withhold equitable relief even aft~r having entertained. a case and held for the plaintiff. See._ Hecht Co. v. Bowles, 321 U.S. 321,. 329 ( 1944) ( "A [statutory] grant. of jurisdiction to issue compliance orders· hardly suggests an abso- ~ute duty to do so under any· and all circumstances .... The ~ 62 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE, essence of equity jurisdiction has been the power of the Chan￾cellor to do equity and to mould each decree to the necessities of the particular case."). As then-Justice Rehnquist pointed out in 1978, the Supreme Court "has specifically held that a federal court can refuse to order a federal official to take specific action, everi ,though the action might be required.by law, if such an order 'would work a public injury or embarrassment' or other- \1/i!?~ 'pe prejudic~al tc, the· public interest.'" TVA v. Hill, 437 U.S. 153, 213 (1978) (Rehnquist, J., dissenting) (quoting United States ex rel. Greathouse v. Dern, 289 .U.S. 352, 360 ( 1933) ) . Therefore, for reasons having to do with public policy and inter￾branch -comity_, the courts might, in the exercise of. their sound discretion, deny an order for specific performance on.the part o{ the' Pr~sident in ari action to force compliance with§ 4(a) (1) .51 3. Political Question Doctrine Assuming that congr~ssional plaintiffs surmoun~ the hurdles of standing and equi~able discretion, the political question doc.trine may nevertheless. prevent the court from reaching the mer.its of their challenge to the President's failure to submit a report under§ 4(a) (1). The classic statement of ~he doctrine appears· in Baker v-; Carr, 369 U.S. 186, 217 (1962): Prominent ori the surface.of any case held to involve a political question is found a textually d~mohstrable constitutional commitment of the issue to a coordinate political department;· or a lack of judicially discover- ·p.ble and mariageab,le standards for resolving it;. or the impossibility of deciding without an initial policy determination -of a kind clearly for nonjudicial .discretion; or the impossipility of a court's under￾taking independent. resolution without expressing lack of the respect due coordinate branches of government; or an unusual rieed for unquestioning adherence to a • political dec~sion already made; ·or the potentiality· of embarrassment from multifarious pronouncements. by various departments on one question. The most recent Supreme Court decision applying this doctrine ernphasiz~d only the first two factors -- textual comrid.tment and lack of judicial standards. See Nixon v. United States, 113 S. 51 As we discuss below, such discretion is within the ~ontrol of •Congres~. Thus, were .Congress to amend the WPR to require the courts to order injunctive relief whenev~r .they found a violation of the ·statute, the doctrine of Hecht Co. would no long_er apply._ - -:: 63 - LIMITED OFFICIAL USE • 0 LIMITED OFFICIAL USE Ct. 732, 735 ( 1993) . .Just last year, the Court also downplayed considerations of "respect" for the other branches. See United States Dep't of Commerce v. Montana, ·112 S·. Ct. 1415, 1426 (1992) ("Respect for a coordinate branch of Government raises special concerns not present in our prior [apportionment] cases, but those concerns relate to the merits of the controversy rather than to our power to re~olve it."). The pr~cise "question" that the court may be barred from resolving is whether the armed forces have been introduced into 11hostilities 11 or situa.tions where hostilities are "imminent." , The_ .. cases se~m to yJ:,elc;l t:he .CC?~clus_~o_n that if a par_ti:~µ;tar._ military engagement is of great magnitude and duration (such as the operation against Iraq or the Vietnam conflict), courts will. be free to find that it does constitute hostilities, but that if the involvement of the armed forces is relatively minor (such-as the operation to escort Kuwaiti oil tankers in the Persian Gulf or mil_itary activities in El S_alvador or Nicaragua), court will ~efuse to decid~ whether the involvement constitutes hostilities. • In Dellums v. Bush, 752 F. Supp. 1141, 1145 (D.D.C. 1990), for example, the c:iistric!: ~ourt stated that "the forces involved· [in deployment to the Persian Gulf] are of such magnJtude and significance as to present no serious claim that a war would not ensue if they became eng~ged in combat." Dellums drew support from Mitchell v. Laird, 488 F.·2d 611, 614 (D.C. Cir. 1973), which held ·th.at if 'th.e c,ourt could verffy that 50,000 Americans had been_ killed ~nd one _hundred billion dollars haq ·been spent in the course of the Vietnam conflict·, it could conclude that there had been a "war" in Indochina~ Accord Prize Cases, 67 U.S. (2 Black) 635·, 669 (1863) :(concluding that the Court would not "affect ,a - technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civ,il war .known ~n .the hist_ory o·f the human race") ; Crockett v. Reagan, 558 _F. Supp. 893, 898-99 (D.D.C. 1982) ("Were a court asked to declare that. the War P?wers Re~olution was_ applicable t6 a s_ituat'ion like that in Vietnam, ft would be absurd for it to decline to find that U.S. forces had been introduced into hostilities after 50,000 American lives had been lo.st. 11 ) , af f 'd per curiam, 720 F. 2d 1355 (D. C. Cir. 1983) , cert·. denied, 467 U.S. 1251 ( 1984) . Contra .Ange v. Bush, ·752 ~upp. 509, Si4 (D.D.C. 1990) ("Ange asks the ·court to find that the President's deployment of U.S. forces in the Persian Gulf constitutes .iwar' [or] 'imminent hostilities• .... Time and again courts have refused to~ ... undertake such determinations because courts are ill-equipped. ~o do so."); Atlee v. Laird, 347 F. Supp. 68Q, 705 (E.D. Pa. 1972) (three￾judge court) ("[T]he quest~on whetner ·American participation in "Vietnam is a •war,' is a political one."), aff'd mem. sub nom. Atlee v. Richardson, 411 U.S. 911 (1973). - 64 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL-USE _On the other hand,· courts have refused to resolve whether hostilities exist when the involvement of the armed forces· is relativ,ely minor and the answer is. therefore heav.ily dependent on the specific facts of the particular .case. See Crockett, ,558 F,. Supp. at 898 (!'(T]he question presented does require judicia~ .inquiry ihto sensitive military matters. . . . The <;curt .lacks the resources and expertise (whic:ti §.rg ~ccessible to the, Congress.) to resolve disputed ·questions of fact concerning the rnili~ary situ~tion in El Salvador."); Sanchez-Espinoza v. Reagan, '568 F· .. Bupp. 596, 600 (D.D.C. 1983). (" [T]he questions presented [·here)' require judicial' ~inquiry int~• sensitive rnilit:ary Jl}at_t:,ers ._ Moreover, the·cover~ activities of CIA operatives in Nicaragua. a.nd Honduras ar.e perforce even less judicially discoverable than the level of participation by_ l;J. S ~ _military personnel in ·hostilities in El Salvador."), aff'd, 770 'F.id 202, 210 (D.C. Cir .. 1985); Lowry v. Reagan, 676 F. Supp. 333~ 341 n.53 (D:D.'C. 1987) (." [Tl he factual evaluation of [the term 'hostilities•·] is alw:ays h~pered·, to some degree; by a Court Is; lack qf access to intelligence information and other pertinent expertise. This is ~~a~erbated by the eyer-changing intensity of 'hostiiities~• especially when. they are in their early stages."), appeal dis￾missed per curiarn, No.· 87- 5426, slip op. • at 1 . (D. C. Cir .. Oct. i 7, 19~.8) ("Appellants' first claim, tha,t United S_tate~ Armed Forces are currently involved in present or inuninent hostilities in ·.the Persiari .Gulf, presents a nonjustici~ble political question.") .•52 This j t.!dicia+ .. refusal to make factual. inquiries abo.ut the existence pf "hostilities" has been. crit_icized· on both logic~l a11d histo_rical gro~nds. With resp~ct to courts' comparative· inexpertise in military matter.s ,. Professor Ely has pointed out rightly that II [j.) udges· and lawyers generally are not experts .on ' any ··substantive area.. Instead they make their decisi_qns • (in a varie~y of a~eas on wh~ch othe-rs are .ll}ore expert than they) by liste.riing to ·the· r.el~vant facts, and when appropriate the opinions of experts, and corning to a decision.·" 'John Hart 'Ely, Suppose Congress Wanted a War Powers ·Act that Worked, 88 Colum. L. Rev.: 1~79; 1'408 (1988) .. In this regard, Professor Ely quoted from the congressional plaintiffs I appellate brief -in Crockett v. Reagan: Is ;it really more diffi·cult to det~rmine whether a group of sold~ers, performing certain tasks in the 52 Th~ ~9~r-~ 9f_ ~ppea_l:s·•. ordei;: dismis·sing the. appeal iµ Lowry was not published. Under D.C. Circuit Rule -1'1 (c), therefore, the ord·er may not be cited as precedent ~.n briefs submitted to that court. • - 65 - LIMITED OFFICIAL USE • o- 0 LIMITED OFFICIAL USE midst of a civil war, are l,ikely to get shot at, than to ascertain the probable economic impact of a given merger? Is there a basic difference between deciding whether a witness is lying when he or she testifies that certain military personnel have. not participated in combat mtssions than when he or she testifies that a certain employer never mentioned race in consid~ring applicants for~ job?53 Id. Moreover, outside the war powers context, "courts are routinely called upon, without incident, to deci_de insurance cas_es in. which .the. -exis.tence or non,,-existence of J~ost~):J~ies must be judicially dete~ined for purposes of giviµg effect to a wa,r risk clause." Id. at 1409. More generally, the "courts have historically made deter￾minations about whether this country was at war for many other purposes -- the constructi9n of treaties, statutes, and even insurance ·contracts. These judicial determinations of a de facto state of war have occurred eyen in the absence of a congressional declaration. 11 Dell urns, 752 F. Supp. at 11_46 ( footnote omitted) . Such determinations have covered "small" conflicts. See Marks v. United States, 161 U.S. 297, 304 (1896) (Whether an Indian tribe was "in amity with the United states ... is not determined by· the mere existen·ce of a treaty between the United St.ates and￾the tribe, or the fact that su~h treaty has never been fo:i;mally abrogated by a declaration of war on the part of either, but that the inquiry is, whether as a matter of fact, the tribe was at the time . . • in a state of ·actual peace with the U_nited States."); id. at 305 (Whether a "tribe was in amity with •the United States .... is a question of fact, to be determined by the test~mony which may be introduced."). Cf. Sterling v. Constantin, 287 U.S. 378, 403-04 (1932) ("[T]he findings ·of fact made by the District Court [that no •state of war• existed in the Texas oil fields] ... leave no room for doubt that there was no military neces￾sity which, from any :point of view, could be taken to justify the action of the Governor in attempting to limit complainants' oil product ion, otherwise lawful. II) . • We ~ust reject the argument that the foregoing principles are inapplicable because judicial determinations of a state of war have greater effects on the political branches in .the context 53 The refusal to make factual inquiries about the existence of hostilities may also confuse the question of. the institutional competence·of courts to ma.Ke certain ·kinds of factual determina￾tions with the question ·of the .ability of plaintiffs to gather enough evid_ebce to carry their burden of proof. - 66 - LIMITED OFFICIAL USE •. 0 LIMITED OFFICIAL USE of the WPR than in cases involving only private litigants, such as those interpreting insurance contracts. Although the Supreme Court admitted in a recent case in which the Government urged application of the po~itical question doctrine that "[r]espect for a coordinate branch of Government raises special concerns," it rejected the Government's arguments, emphasizing that "those concerns relate to the merits of the controversy rather than to. [t}:'le ju(!iciary's] power to resolve it-. 11 United States Dep't of Commerce v. Montana, 112 S. Ct. i415, 142.6 (1992). In the con￾text of the WPR, we think this statement mE;ans thc:tt any "special concerns" arising from possible effects on the political branches .of a judicial determination .of llhost,ilities.'' spould influen~e i:iot whether the courts resolve the issue, but how much detererice they give the to the President in the discharge of his duties under § 4(a) (1). Moreover, we believe that any such special concerns woild cause the courts to be Sspecially careful in·~onsidering • the other justiciability doctrines that might bar their r~aching the merits of the President's compliance with the WPR. Thus, the applicability of the polit~cal question doctrine to judicia1 determinations ·under§ 4(a) (1) will be judged on a case-by-case basis. The smaller the military force involved, and the less the relevant facts may _be garnered through public. channels open to the public, the more likely the.courts will rely on the political question doctrine to refuse to decide whether the requirements of· § 4 (a) (1) have been triggered. If a court cannot make a determination about the existence of hostilities, it ·will be forced to dismiss any action seeking to compel the President to ·comply with §. 4 (a) (1) by submitting a report. 4. Ripeness In Goldwater v. Carter, 444 -U.S. 996- (1979) (mem.), the Supreme Court swmnarily vacated the D.C. Circuit's judgm~nt in a dispute between member of Congress and the President over the President's power to terminate treaties without the ratification of ei~her the Senate or the Congress as a .whole. In his opinion concurring in the judgment, Justice Powell concluded that "a dispute between Congress and tpe President is not ready for judicial revie~ ~nless and un~ll each bra~ch has taken action asserting its co_nstituti9nal -authority, 11 that is, "until the political branches reach a constitutional impasse." Id. at 9.97. Because Justice Powell's analysis would apply the doctrine of •iripeness" oi;:ily to "issues affecting the [consti.tutional] allocation of power between the President and Congress," id., the doctrine would not be strictly appli~able to actions by meniliers of Congress to· enforc_e § 4 (a) (1) of the WPR. A dispute about whether the President has introduced American armed forces into hostilities such that§ 4(a) (1) imposes a duty on him to - 67 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE submit a report to Congress.is not a constitutional dispute. Moreove~, Co~gress essentially has asserted its authority by enacting§ 4(a) (l); there is nothing more for it to do. The doctrine of ripeness would not appear to bar the courts from reaching the merits of the issues. However,, the district court's opinion in Lowry v. Reagan, 676 F. Supp. 333, 341 (D.D~G. 1987), citing Justice Powell's discussion.in Goldwater, noted that "if Congress nad enacted a joint res9lution stating that 'hostilities' exis'ted in the Persian Gulf for purposes of section 4(a) (1) of the War Powers Resolution, but if the President still refused.to file a ,section :f(a) report, this co·urt. would have. beeri· presented wfth ·an issu·e· ripe foI'. judicial review. 11 The district court in Crockett v. Reagan employed much the same formulation: "Certainly, were Congress to pass a resolutiqn to the effect that a report was required urider the WPR, ... and the President disregarded it, a constitutional impasse appropr~ate for judicial resolution would .be presented." 558 F. Supp. at 899 (citing Gordwater). In Justice Powell's terms, it might be said that these district .courts• ( the court of appeals did not address ripeness in either case)· would' find no II impaf?se II until the President and Congress had formally disagreed about whether the conditions of§ 4(a) (1) had been met with respe~t to_a particular military operation. This seems to be an odd result given that it is the ju_diciary, not Congress, that is normally expected to apply a statute .to. particular facts. Nevertheless, because no other courts have considered ripeness in this context, the Lowry/Crockett district court rationale might operate to bar courts from adjudicating § 4 (a) (1) complia11ce questions in certain circumstances. 54' B. Compliance with§ 5(b) 54 Somewhat akin. to the doctrine of ripeness was the D.C. Circuit's "suggestion of compromise [between the two political branches] rather than historic confrontation" in United States v. AT&T, 551 F.2d _384, 394 (D.C. ,Cir. 1976). The court, rather than immediately adjudicating any "nerve-~enter constitutional questions" about the conflicting authority of the President and Congress with respect .to national security information, decided to "pause to allow for further efforts at a settlement." Id . . Ac_cordingly, the court remanded the case "for further proceedings during which the parties and counsel are requested' to attempt to negotiate a settlement;" Id. at 395. The courts might. seize on this e~ample to delay adjudicating WPR compliance issues while ordering the parties to negotiate. - 68 - LIMITED OFFICIAL USE • 0 0 ' LIMITED OFFICIAL USE Section ·5 (b) of the Resolution requi.res that- th~ President, wit~in six.t-y days after a report is submitted or is required to be submitted unde;- § 4Ja) (1) ~ "terminat;:e" any use of the ~rµied forces in ,the arena triggering the reporting requirement, unless Congress has declared war or otherwise authorized such use of the armed forces. Assuming that ,the sixty-day ·deadl1ne· h?id passed, either after the Presi9ent ha~ submi~ted a ·report under§ 4(a) (1) or after a c~:mrt had otherwise started t}1~ ~i~!:y-day clock, the question is ~hether and to what extent;: the court.s would determine the President's compliance ~ith ~h~ requirement that he terminate use of the .armed forces. Section s (b) also raises· the· issue whet.tier Con~fress ~as ·the con.stitutional authority. to .. tepninate a mil i'tary operat;ion undertaken at the direction of the Pres1deiit .. Assuming that .the President asserts that Congress does not have this authority under·the Constitution, would• the courts resolve· ,this issue? •• • • • • • • • 1. Standing ·With respect to the standing of members of Congress to seek the President•' s compiiance wit~ § .?·(b) , i,t is ·clea_r t;:hat· no such standing exists.. As discussed above, ·the WPR does not confeF a private right of action to enforce· its provisions, including· the ~ermination reqµirement of § 5.(b). Members of Congress the~e~ore• do ·not have any legally-~rot~cted interest such.that the f~iltire. o.f t·he President to comply with that r~quirement :would s:au~e any￾irijury- in-fact to such members. Moreovei, even if the WPR were construed to -confer a private· right of ac.ti'on .on _individuals, members of. .Congress wou1d still not stiffer any injury-in_-fa·ct sufficient to, give th~m stapding. Because a failure to terminate. the ·use of the armed forces does not affe\:t c9ngr_essmen in ariy "cqncrete and particulari.zed 11 man￾ner, th_ey woul~ be for<:ed .tc> allege that they were injured simply because th~ Preside_nt was "breaking the law. 11 The Supreme Court ha_s r~peatedly made clear that private citizens h~ve. 1:10 st~nding to asser.t S.l;JCh claims: • ·we have consis_tently held that a pl~intift raising• only a.g~nerally available grievance aoout gove~runent •• . ·claiming only narm to his and every citizen's int~re~t irr prope~ application of the Constitution and laws.,. and seeking relief that no more directly ·and tangibly benefits him than it does the public at large -- does not state an Article III. case cir controversy. ~ • . • Lujan v. Tiefenders of Wildli~e. ,11~ S. Ct. 2130, ~143 (1992). Accord Allen v. Wright, 468 U.S. 737,, 754 (1984) (" [A]n a·sserted right to have ·the Government act in accordance with law is not - 69 - LIMITED OFFICIAL USE -------- 0 0 LIMITED OFFICIAL'USE sufficient, standing alone, to confer jurisdiction on a federal court."). Accordingly, in their Cflpacities as private citizens, members of Congress have no standing to compel compliance with § S(b). The lower courts have also made it clear that members of Congress are subject to these s~anding principles even in their capacities as legislators. Thus, ,in American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C. Cir. 1982) (per curiarn), the D.C. Circuit denied standing to.a member of the House who complained that a government agency had carried 'out· a reduction--in-force in violation of law., It held ·that •~the congressman's stake as a legislator .was merely an interest in having laws executed properly. 11 Id. at 3 05'. However, 11 [a] ny interest ~hat a congressman has in the execution of laws would see~ to be shared by all citizens equally. ,Injury to that iriter￾est is a generalized grieyance about the condu~t of government, which ladc_s the specificity to support a claim of s~9-nding. 11 Id. (citation omitted). In Chiles v,! Thornburgh, 865 F .2d 1197, 1205 (11th Cir. 1989), the Eleventh Circuit confronted a Senato"r•s argument that "as a Senator he has a right to see that the laws, which he voted for, are complied with." The court rejected this argument: "Such a claim of injury, however, is ,nothing more than a generalized grievance about ·the .conduct of the government. The. Supreme Court has repeatedly made clear that an injµry to the right possessed.by every c~tizen, to require th~t t~e gover:i;unent be administered according to law[,] is insufficient to support a claim of standing." Id. at 1205-06 (citation omitted). Finally, the Tnird Circuit has opined that "[o]nce a law is passed and upheld as constitutional, C9ngress 1 s interest in its enforcement is no more than t~at of the average citizen. An ordin~ry citi￾zen, in turn, has no standing to obtain, an injunction to'enforce the law, absent a personal stake in such enforcement." Ameren. Inc.· v. U.S.' Army Corps of Eng•rs, 787 F.2d 875, 888 (3d Cir.) (citation omitted), modified, ,809 ,F.2d 979 (3d Cir. 1986); cert. dismissed, 488 U.S. 918 (1988) _55 55 Just as Congress and its members would suffer no injury￾in-fact if the President failed to comply w:ith § 5(b) of the WPR, th~y would also suffer no injury-in-fact if the President failed to comply with the War Powers Clause of the Constitution, art~ I, § 8, cl. _11. Citizens at large have no more interest in "the prop~r application of the Constitution," Defenders of Wildlife, 112· s. Ct. at 2143, than in the proper application of statutes ~uch as the WP'i'L • see, ~' whit.more v. -Arlcansas, 495 U.S. 149, 160 (1990) (denying citizen standing to require compliance with the Eighth Am~ndment); Schlesinger v. Reservists Comm. to Stop • • (continued ... ) - 70 - LIMITED OFFICIAL USE • 0 , 0 LIMITED OFFICIAL USE Thus, members of Congress clearly have no standing to force the President to comply with§ 5(b). Arneron suggests, however, that Congress or its constituent Houses (although not individual members) iri some circumstances might have standing to obtain a declaratory judgment that§ 5(b) is constitutional. The Arneron court also held that "Congress has standing to intervene [as a plaintiff] whenever the executive declines to defend a statute or ..•. ·actually argues that it is tiri~onstitutional. 11 Id. n.8. The ~hird Circuit thought this principle flowed from the Sup~eme Court's narrower statement in INS v. Chadha, 462 U.S. 9i9, 940 ( 1:983) ., -that !!Congress is _the. prop_e:;- party t_9 defe~.¢1 th~ v9-lidi~y of a statute when an agency of government, as a defendant charged· with enforcing the statute, agrees with plaintiffs that the stat￾ute is inapplicable or unconstitutional." Cf. Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1105 (9th Cir. 1988) ("The U.S. Senate filed a complaint as intervenor ... for declaratory and 1njunc- tive relief upholding the validity of the [statute] .... The district court granted the Senate's motion for summary· judgment, upholding the constitutionality of the [statute]."), modified, 893 F. 2d 205 (9th Cir .. 1990) (en bane;) (per curiam). Under these rationales, rieither Congress, nor its Houses, would have standing to maintain actions independently of private plaintiffs. The congressional standing recognized in Chadha and Ameren depended on the-presence of two other adversary parties to the dispute, including a private party that has standing in its own right. Accordingly, in both cases, Congress participated as intervenor, not as original plaintiff or defendant. See Chadha, 462 U.S. at 930 n.5; Arneron, 787 F.2d at 880. One might say that i~ those cases, the "injury-in-fact" that supported congressional -standing was the Executive Branch's as~ertion, in the course of litigation involving a private party with independent standing, that a statute was unconstitutional, such injury would not exist in an action for declaratory judgment broug~t solely by Congress· 55 ( ... continued) the War, 418 U.S. 208, 216-27 (1974) '(denying citizen standing to enforce the_ Incompatibility Clause, art. I, § 6, cl. 2); United States v. Richardson, 418 U.S. 166 (1974)' (denying citizen stand￾ing to enforce the Receipts and Expenditures Clause, art. I, § 9, cl. 7) .. cr. Defenders of Wildlife, 112 S. Ct. at 2144' ("[O]ur· generalized-grievance cases have typically involved Government violation of procedures assertedly -ordained by the Constitution rather than the Congress.")~ Accordingly, Congress and its members would not have standing to force compliance with the War Powers Clause. Contra Dellums v. Bush, 752 F. Supp. 1141, 11~7- 48 (D.D.C. 1990). - 71 ~ LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE against the President. In addition, we must emphasize that -the intervention in both of those cases was by HOuses of Congress authorized to participate pursuant to statute or resolution, not . by u~autnorize? individual members. See,~, Chadha, 462 U.S. at 930 n:5 (citing s. Res. 40~ 97th Cong., 1st Sess. (1981), and H.R. Res. 49, 97th Cong., 1st Sess. (1981)) ~ • Even if they could show injury, congressional plaintiffs ~ould need to clear the redressability hurdle identified in .the disc~ssion of standing with ,respect to§ 4(a) (1). They .might attempt to do so in th_is context by bringing their action to compel compliance _with§ 5(b) not against the President,. but against some ·other officer,· such as the Secretary ·of Defense,, with the autho~ity to terminate the use of the armed forces. Courts do have power to enter injunctive or declaratory relief against the President's agents. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2776 .(-1992) ( four-Justice plurality) (citing· Youngstown Sheet & Tube Co .. v. Sawyer, 343 U.S. 579 (1952)); id .. at 2790 (Scalia, J., concurring in part and concurring in the judgment) (citing same). 2. Equitable Discretion The analysis of the equitable discretion doctrine with respect to the is~ues arisirig under§ 5(b) is essentially the same as with respect to§ 4(a) (1) issues. Whether they are seeking the enforcement of§ 5(b) or a determination that it is const~tutional, memb~rs of Congress are neither battling their colleagues.nor attempting to obtain a- judicial declaration that a st~tute is unconstitutional. Thus, these plaintiffs cannot obtain relief from their col'leagues. As with respect to the reporting requirement of§ 4(a) (1), the congressmen desire to compei the President to co~ply with the termination requirement. of § s (b) . Moreover, they wish the President (and the c,;,urts), not. tneir colleagues, to acknowledge· the constitutic;mality: of §, 5 (b) . Accordingly, equitable discretion by itself should ~ot prevent ~ourts from resolvi~g § 5(b) disputes. On the other hand, ,a court might employ ~he analysis used by Lowry v. Reagan, supra, 676 F·~ Supp.- at 340-41, to examine whether there is a dispute within the Congress concerning the_ President's compliance with § 5 (b) or t_he constitutionality of that provision. In such case, the court might cqnsider w~ether bills had been introduced to compel the President to comply with § S(b), or whether resolutions had been intro~uced declaring the sense of the Congress that§ 5(b) was constitutional. On the facts of the particular case, the court might conclude that the plaintiffs• dispute over compliance or constitutional1ty was primarily with their fellow legislators, not with the President. - 72 - LIMITED OFFICIAL USE • a LIMITED OFFICIAL USE Equitable discretion would then prevent· the court from adjudging the merits of that disp~te. The other kind of equitable discretion, discussed in TVA v. Hill, 437 .u.s.·~ 153, 211-13 (-1978) (Rehnquist, J., dissenting)., which was .addressed c;bove, might also be relevant ·in ·suits that seek compliance with§ S(b) c::,f the 'WPR. 3. Polit.ical. Question Doctr~ne Once a determination has been made that the President must subm1.t·· a ·report ·under· § 4·(a) (·l), the, determination pf .compl_ia~¢e with § 5 (a) is relatively straightforwa.rd-. Questiqris regarding whether sixty day!;3 have pass,ed, whether ·congress ha,s declared war or enacted a specific authorization for use of the armed forces, or_whether :q9E~fe~s;~es' e~tend~d _by law t~e si~ty-day pe~iod present str.aJ:glitforwa;-d ,t~s}cs ,0f c.a~enda~ reading or statutory construction. Resolution of. ~hese complian~~ questions would noc be barred by the :political question doctrine. Whether the President has termiriate'd, qr is in the process· of terminatiµg, the use of armed forces in hostilities, however, requires a separate analysis. - _The most .recent case that reached the termination issue was decided twenty years ago. After ·concluding that President Nixon had the duty to attempt, ·" in good faith and to the best of .his ability, to bring the war [in Indochina] ~q an end as promptly as was consistent with the safety of those· fighting and with [the national interests]," the D.C. Circuit held that "[w]hether Presi9-ent Nixon.did ~o proceed is a question which at this •stage in history a- court is incompetent to answer." Mitchell v. ·La·i'rd, 488 F.2d 61~, 6],6 (D.C: Cir. 1973). This holding· res~ed on the court's perceived inability to procu_re the r~levant evidence and a re·luctance to substitute its judgment for the President·• s, who. poss~sses "an unus\lally wi?e ~easure of discretion in tllis area.'" Id.· Given this holding, together with all the other judicial hurdles that must be surmounted before even beg.inning to litig~te termination issues,. it is unlikely .that a. cour,t would resolver a dispute about the manner in which the President wa~ complyi~g ~ith the termination requir~ment., But· cf. 'Baker v. Carr,. 369 U.S. 186, 213-·14 (1~62) (With respect to "dete'rmination_of when or whether a war has ended . ·i· .. , cle?,rly de.f inable criteria for decision may be available .•11 ) • With respect to wh_ether ~he' courts would: reach the .merits of a§ '5(b) lawsuit if ~h~ ~F~s~dent challenged that provision on constitutional grounds, the analysis 1s much more complex. The one case that speaks directly· to this.·issue is Ange v. Bush, ~52 F. Sup~. 509. (p.D;C, 1990). The plaintiff, a sergeant in - 7,3 - LIMITED OFFICIAL USE • 0 LIMITED OFFICIAL,USE the National Guard, challenged the President's order deploying him to the _Persian Gulf in anticipation of the offensive military operation_ against· Iraq. The plaintiff asked "the court to issue· an injunction r~quiring that he be returned to the United States op the grounds that his deploymenl:, violates the War Powers Claus.e of the Constitution and the War Powers ·Resolution." Id. at 511. Given the President's vigorous constitutional defenseof-his authority to order the deployment, t~e court initially decided that "[i]n order to determine whether the President has violated the War Powers Resolution, this court would necessarily have to determine whether the President, under the Constitution, was or i's constitutionall-y -required. to- comply with the provisi:o!}s _ qf _ the War Powers Resolution. 11 Id. at· 512. Such a constitutional determination, however, "is one which the judicial branch cannot make pursuant to the separ~tion .of powers principles embodied .. ; in the political quest~on doctrine.-" Id. Thus, concluded the court, "the Con~titution leaves resolution of the w~r powers disp1:,1te to tpe political branches, not the judicial branch.'-' Id. at ~14. Accordingly, the court dismissed the· plaintiff's claims under the wpR. Two other district court cases contain dicta that draw contrary conclusions under the political question doct~ine. In Lowry v. Reagan, 676 F. Supp_. 333 (D.D.C. 1987)_, which involved the Navy's escor.t of Kuwaiti oil tankers in the Persian Gulf, the court was confronted with a request by members of the House to rule on § 4 (a) (1) issues-~ The constitutional issues arising under§ S(b) were not directly implicated by the case, but the cour"t nonet-heless took the opportunity, at the end of its dis- _ cussion of the political qu·estion doctrine, to "note [l that, had t_he -cons__titutio~ality of the War Powers Resolution be·en squarely P.resented, 11 the doctrine would not have been relevant. Id. at 340-41. The court ·went on to state ,that the ·task of '!analyz[ing] the constitutional division of powers" in military affairs "is wi th'in the purview of the jud~ciary. 11 Id. at 34·1. The brief per ~uriarn order dismissing the congressional plaintiffs' appeal did not discuss this point. In Crockett v. Reagan, supra, the -court concluded that the political question doctrine precluded it from determining whether a report was mandated ux:ider § 4 (a) (1) o_f the WPR with respect to the presence of military advisers in El Salvador. 558 F. Supp-. at 898. The court further suggested, however, that the doctrine would not prevent it from adjudicating issues that might arise under § 5 (b) .of the WPR: "Certainly, \'?ere Congress to pass a resolution ... to the effect that [military] forces should be withdrawn·;· and the President disregarded it, a constitutional impasse appropriate for judicial resolution would be presented." Id. at 899. In addition, the court did "not decide that all - ' - 74 - LIMITED OFFICIAL USE . • 0 0 LIMITED OFFICIAL USE ·disputes under the War Powers, Resolution would be inappropriate fo~ judici~l resolution." Id. at 901. The summary affirmance by the court of appeals did not discuss this point. See 720 F.2d at 1356-~7. • One other war powers cas~_deserves mention at this point. Although Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990), which did not involve the -WPR,. was nominally concerned with the types of issues that would arise under§ 4(a) (1) rather than under § 5(b), ft contains language strongly suggesting that the court would not only reac,h the merits of the question of Congress' const.ittitiona~ au~hority to ·termi·nat·e· an offimsive 'military attack but would also res·olve that issue in favor of Congress. The court rejected the President's argument that harmonization of the various war-related and military-related provisions of the Constitution "is a political rather than a legal question." Id. at 1145. More.over, the court was "not, prepared to reaq out of the Constitution the clause granting to the Congress, and to it alone, the authority 'to declare war.'" Id. at 1146. The Supreme Court has not yet issued an opinion in a case brought under the.WPR. Two decades ago, however, the Vietnam conflict provided several individual Justices the opportunity to express their view~. In denying an application to ·vacate a stay of an injunctipn prohibiting military action in Cambodia, Justice Marshall opined ·that "as a matter of substantive constitutional law, it seems likely that the President may not wage war without some form of congressional approval." Holtzman v. Schlesinger, 414 U.S. 1304, 1311 (1973) (Marshall, Circuit Justice).· The political question doctrine would ~pparently not stand in his way: "if the decision were mine alone, I might well conclude on ~he merits that continued American military operations in Cambodia are unconstitutional ..... IcL at ·1313 •. In an earlier Vietnam- era· case, Justices Stewart and Douglas believed that the justiciability of war powers issues was a serious enough question to require plenary consideration rather than a summary denial of certiorari. Mora v. McNarna·ra, 389 U ._S. 934, 935 ( 1967) -(Stewart, J., dissenting); id. at 939 (Douglas, J., dissent~ng). Outsid~ of the war powers context, there are few judicial decisions that proyide any definitive guidance on the political question doctrine as it would apply to constitutional disputes between the two politi,cal branches. The most recent was the dispute in 1979. b~~ween the -President and va_rious members of Congress over the Pres~dent's authority to terminate unilaterally. the. Mutual Defense Trea~y with Taiwan. si~ting ~~ ban~, ~he~~~~ Circuit resolved "the constitutional allocation of governmental powe;- between two brancl)es" on the merits. Goldwater y. Carter, 617 F .2d 697, 709 (·D.C. Cir. 1979) (en bane) (per curiam). Not - 75 - LIMITED OFFICIAL USE .. 0 0 LIMITED OFFICIAL USE one judge concluded that the political question doctrine barred such resolution. Without briefing or oral argument, the Supr~me Court 'On certiorari vacated the judgment and remanded the case with a direction to dismiss the complaint. Goldwate~ v. Carter, 444 U.S. 996- (1979) (mem.). No single rationale gained the support of a _rnajo~ity of ~h~ ~qurt. Four Justices ~uppo~ted the result on grounds that appear to be rele~ant to the kinds of issues that might arise under § 5 (b) of the WPR: "the basic ,question presented, by [members of Congress] in this case is 'political' ,and-therefore nonjusticiable because, i~ involves the authority of t~e President in the condu~t of our country's foreign relations and the exte~t to which the Senate or the Congress is au~horized to negate the action of the President." Id. at 1002 (Rehnquist, J., concurring in the judgment). On the ot~er hand, two Justices disagreed with this reliance on the politi9al questiqn doctrine,. See id. at 998-1001 (Powell, J., concurring in ~he judgment); id. at 1006- 07 (Brennan•, J. , dissenting) . Two other Justices. criticized passing on the pol~tical question doctrine without "plenary consideration" of the issues. Id. at 1006 (Blackrnun, J., dissenting) . A few years before Goldwater, the D.C. Circuit was faced with a conflict between Congress and the Executiv~ Branch over access to information concerning warrantless surveillance for ·national security purposes. The House of Representatives had asserted its. constitutional authority to invest_igate while the President had asserted his constitutional authority to maintain the, secrecy of national security information. The ·D.C. Circuit concluded that it could properly resolve th~ dispute: "In pur view, neither the traditional political question doctr~ne nor any close adaptation thereof is ~ppropriate where neither of the conflict.i:ng political branches- -has ,a clear and unequivocal con￾stitutional tit_le, and it is or may be possible to establish an effective ju9,icial settlement."· United States v.. AT&T, 567 F. 2d 121, 127 (D.C. Cir. 1977). In the arena·of war ·powers, we think, neither Congress nor the Presiden·t has. 11a clear and unequivocal constitutional title." Consideration of all these decisions yields an equivocal conclusion, albei,t one that slightly ,favors ,the likelihood that the courts would no~ allow the political question doctrine to stand in the way of resolving § 5 (b) is.sues i~ at least some circumstances. Although at least one judge in the. District Court for the District of Columbia would definitely not resolve such issues, at least t;:~ree otfiers apparent;t.:y would. At the appellate level, there has emerged no institutional support in the D.C. Circuit for applying the political question doctrine to disputes - 76 - LIMITED OFFICIAL USE --~ .. ,----- -0 -0 LIMITED OFFICIAL USE ~bout the constitutional allocation of power between Congress and the ~reside~t. Of course, the court is much changed since 1979. The ~arne ~an be said of the Supreme Cou~t. Of ·the Justices who relied on the doctrine iri Goldwater, only two (Rehnquist -and Stevens) still serve on the Court. The two other holdovers from ,that era (Blackrnun and White) were also the Justices, who would have set the case for briefing and oral argument before passing on that doct-rine. Of all the great s~paration of powers cases since 19,79, the pplitic:al ,question doctrine played a p~rt oi:ily in INS v. Chadha, 462 U.S. 919 (1983). Even in this case, which presented perh~ps the sharpest structural coristitutiopal conflict between the ·Executive Branch and .Congress, the Cou~,t c_on_sidered the ,doctrine only as it applied to the private party's challenge to a congressional statute, not to the interbranch conflict. See id. 940-43. - Finai1y, the Court-' s recent decision applying ~h_e doctrine to a federal juqge' s .challenge to the Se_nate' s ,conduc;:t of his impeachment ·_trial ~s relevant, even if it did not involve a confl~ct between the two political branches. If eithe; the President ,or C,ongress claims there is "a textually deJ:!loristrable const:-~tutipnal corml!itment of the [war powers] issue" to hims~l_f or itself, Baker v. Carr-, 369 U.S.- 1~6-, 217 '(1962), the Supreme· -Court's rE:!ply- is likely to be_ that the judiciary "_must, in the first instance, interpret the text and.determine. whether and to what extent the issue is .textually committed, II Nixon V. United .States, r13 ·s. Ct. 732, 735 (1993). - - 4. .Ripeness Justice ·Poweli's ripeness- doctrine in Goldwater v. Carter, discussed- above, is not strictly applicable to actions by members of ·congress to enforce compliance with§ 5(b) of the WPR. A dis￾pute concerning whether -the President is c~mplyirig_with ~is duty under ·§ 5 (b)' t9 terminate the ~se of armed· forces is simply not a ·constitutional dispute. ,Furthermore, Congress has a·sserted its authority ·by enacting § ·5 (b) . As the legislative branch, there is nothing more it ·can do to express its will-. Therefore, the doctri~e of ripeness would not appear to preclude the courts fro~ re.aching the merits of § 5 (b) compliance issues. As .before,- however,, there ·are cases that tend to~ard the co-ntrary conclusion. In Crockett v. Reagan, the court stated: "Ceri:ainly, ,were Congress to pass a resol~tion . . . to the ef fec:_t that the forces should be withdrawn, .an_d the President q.isregarded it,. a constitutional impasse _appropriate for judicial resoluti_qn w_ould be presen~~d." 558- F. Supp. at 899. See also Lowr·y v. Reagan, 676 F. Supp. at ~40-41. This stc1:temen·t implies - 77 - LIMITED OFFICIAL USE • a LIMITED OFFICIAL USE that the court wquld not find an "impasse," and thus p;oceed to the merits,. until the President and Congress formally disagreed about whether the President was in compliance with§ S(b) with respect to a particular military operation~ Again, this seems to be an odd result given that it is the judicial branch, not the legislative branch, that is expected to apply the law to the facts. Nonetheless; because other courts have not considered ripeness in this context, the Crockett rationale might operate to prevent courts from adjudicating§ S(b) compliance questions in certain circumstances. ' Justice Poweli • s analysis is rncfr~ obviously relevant to the iss~e of the constitutionality of§ S(b), that is, to the issue whether Congress has the constitutional authority to order the President to withdraw troops t'hat he has committed to a military operation. This is indeed a questi<:m of "the allocation of power between the President and Congress." Goldwater v. Carter, 444 U.S. at 997 (Powell, J., concurring in the judgment). Justice Powell's ripeness doctrine would prevent .courts from deciding this question until there is "an actual confrontation between the Legislative and Exec.utive Branches," which would require Congress to take s6me kind of "official action" that could be said to "r~ject[J the President's claim." Id. at 998. The enactment of§ S(b) could be said, to constitute official action that r:-ejects. any Presidential claim. to unilateral authority to engage in hostilities without the consent of Congress. Even if the constitutional dispute over§ S(b) might otherwise be ripe under this hypothesis, the ripeness dqctrine might require.one or both Houses of Congress, or their authorized representatives, to file the, .1·awsuit, given that the intent o!' the· doctrine is not to "encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the norf!1al political process has the opportunity to resolve the conflict." Id. at 997. Of course, all of th~s analysis is the view of a single (now-retired) Justi9e of the Suprem~ Cou~t. The full Court has not adopted Jt, and it has not had extensive treatment in the lower courts. Even the district courts in Lowry and Crockett, while citing the ·doctrine, did not explicitly rely on it as a basis for r.efusing to adjudicate any issues. v. Statutory Elimination of ·Justiciability Barriers The WPR could be amended, or separate s.tatutes enacted, to remove some, but not ,all, of the barriers to the justiciability of com~liance questions. - 78 - LIMITED OFFICIAL USE· • 0 0 LIMITED OFFICIAL USE A. Standing As discussed above, me~ers· of Congress do not now have. a legally-protected interest ,in receiving, reports required to be submitted pursuant ~o § 4(a) (1) because the WPR does not confer a private right of actio~ on them. An amended Resolution, however, could create such a right by specifically providing for judicial enforcement,~at the behest of a congressional plaintiff, of the President's· duty to submit the required report. A, failure by the President to submit the report would invade the members• legally￾protected ,,interest and cause them to suffer injury-in-•fact. One model f_or such an enfor.cement pr_ovision is 28 u. s .,c .. §· 13.65 (al, wh'ich provides in part: • • ,.. • • -- - •• - • - • ' The United States District Court for the District of Columbia shall have original jurisdiction. : ~ over any civ~l action brought by the Senate or any authori'zed committee or subcommittee of the Senate to enforce, to secure a declaratory judgment concerning the validity of, or to prevent a threatened refusal or failure to comply with, any subpena or order iss'ued by the S~nate or committee or subcomm~ttee. of the Senate See generally In re Application of the United States Permanent Subcornrn. ·on Investigations, 655 F .. 2d ,1232 (D.C._ ·cir.) (applying statute)·, cert. denied, 454 u~s. 1084 (1981); Senate Select Comm. 6n Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir,. 1974) (en bane) (applying simila·r· predec~ssor statute) . . An an_al_ogous_ provision in the ·WPR could have the advantage, of specifying in advance which insti~utions or individuals were authorized to bring a civil action to enforce the reporting requirement and which were not .. That is, the new statute could specify that the legal action be brought by both Houses jointly pursuant to a concurrent resolution, by either House individually pursuant to its own resolution, or by certain committees.pursuant to the resolutions of their respective Houses or on their own motions. cr. United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976) ("It is clear that the House as a whole has standing to assert its 1nvestigatory power, and can designate a member to act on its behalf. 11 ) • The amended statute· could also authorize· any individ~al member to sue without further collegial action. Any of these options would also remove any doubt about whether an amended§ 4(a) (1) conferred a private right of action on the authorized plaintiff~~ These conclusions, however, are at odds with the position taken by the Justice Department in th~- most .recent Supreme Court - 79 - LIMITED OFFICIAL USE Q Q LIMITED OFFICIAL USE case that involved the standing of members of Congress to bring an action against Executive Branch officials. In a suit brought by congressional plaintiffs seeking a declaration that a bill had become a law notwithstanding President Reagan's purported pocket veto, the Department argued broadly that the separation of powers on which principles of standing are based forecloses lawsuits by Congress or its members challenging the actions of executive offi.cials. See Brief for Petitioners at 13-20, Burke v. Barnes, 479 U.S. 361 (198_7) (No. 85-781). Concerning who may properly represent Congress if the ,judiciary ever could referee a dispute between the other two branches, the Department also argued that .,because _the Congres~ may ,generally act qz:ily thro:ugh the expre~s concurrence of both Houses, courts should require that Congress express its position through a concurrent resolution, rather than through its individual Houses or members. See id .. at 27 n.20. Although we adhere to the analysis of standing herein, we recog￾nize that the arguments advan~ed in the Burke brief co~ld provide a reasonable basis for challenging an amended WPR in the Supreme Court, a challenge that has a reasonable possibility of success. To overcome the redressability problem that exis~s because § 4(a) (1), now imposes the reporting duty only on. the President, who is not likely to be amenable to suit in this context, the WPR could. be ·amended to impose such duty on subordinate officials, such as the Secretary of Defense. See Franklin v. Massachusetts, 1i2 S. Ct. 2767, 2776-77 (1992) (four-Justice plurality); id. at 2788-90 (Scalia, J., concurring in part and concurring in the judgment), . With respect to the Executive Branch's compliance with § S(b), there is no basis for creating by statute a legally￾protected interest in Congress or its members ·to require the President or other office~ comply ·with termination requirement. As discussed above, this kjnd of.interest will not support the injury-in~fact requirement of Article III. The Supreme Court recently made this point in refusing to f.ind standing in a case brought unde_r the .Endangered Species Act: "the [lower] court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self￾contained~ non-instrumental 'right' to have the Executive observe the procedures required by law. We reject this view." Lujan v. Defenders of Wildlife, 112 s .. ct. 2130, 2143 (1992). Unde·r this analysis, Congress may not confer on itself the "right" to have the President comply ~ith § S(b) of the WPR. The one statute that· purported to create standing in members of Corfgres·s where there was otherwise no· c~nstitutional in:iury￾in- fact was given no effect by the courts. In McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981), the three-judge district court - 80 - LIMITED OFFICIAL USE -.- ----. - . 0 O· LIMITED OFFICIAL USE found that a Sena~or had no standing merely as a citizen or a Senator to cha·lle11ge the appointment of a f e9era.l judge allegedly made in violation.of the Ineligibility Clause, y.s.' Const. ar~. I, § 6, cl. 2. Reviewing a special statute· tpat purported to confer ~tanding, Pu~. L. No. 9~-86, § l0l(c), 93 Stat. 656, 657- 58 (1979), the court .opined: "It is difficult to see· how. .this statute may, consistent with art·icle III, corifer upon a senator ,or m~mber of the House of Representa,!:~v~s ~ '~ight' to seek a decision from. a federal court that such a seriator 6r ·meml::5er of the House would otherwis~ be powerless to procure. II, 513 F. Supp. at 27r. On appeal, the Supreme Court summarily affirmed' this· decision. • McClure· V·; -Reagan,- 454· .-q.s. 1025, _(1981). With respect ~o the constitutionali~y of § ·5 (b), Congre·ss coulq assu~e itsel~ standing by conferring a priyate right of act19n under the WPR on individuals, ~uch as soldiers engaged in the alleged- .hostilities required to b~ terminated oy. § 5 (b), who ·c1~arly su~ fer injury- ih- fact from the failure ·to comply with t_ha.~ ,provi~ion. Congress could intervene iri any ac1::ion brought by .the pr~:vate plaintiff and seek a de~laratory judgment that .§ ·5 (b) was constitutional, under the rule of INS v. Chadha, 462 U.S. 919, ~40 (1983), as amplified,by Ameron. Inc. v. u~s. Ariny Ccfrps of Engineers:. 787 F.2d 875, 888 & n.8 (3d Cir.) (citation omitted)., modi·fied,. 809 F.2d 979 (3d Cir. 1986), cert. dismissed, 488 U.S. 9,18· (1988). • • --,_ - ... -, , . ' B. ·Eguitable piscretion If t:he courts do uphold the standing of members of Congress under"an .amended WPR, the o~c. Circuit's equitable discretion doct·ri_ne, wh_atever its pi!:!sent .force and applicability otherwise, ·would pos.e no .barrier ~o judicial consideration of war po.wers. questions. Onl~ one ca~e has con~idered that doctrine in light of a ,statute spec.if ically granting members .of Congress t~e righ~ to ,bring an act~on· ~or declaratory and injunctive relief. In re~chihg t_he merits of a. challenge to the .G~amm-Rudman Ac~ by members of Cpngress and ·private parties, a thJ;ee-judge District ·court for the DistriGt of Columbia found • no occasion to consider exercising the equitable d{icretiori held.by ·this Circbit's cases ~o justify denial of specific or declaratory relief to Members of Congress. Sect-ion 274 of the Act specific~lly provides f qr such relief to su·ch plaintiffs, thus eliminating w.hatever equitable discretion might exist and leaving only ·the lim!~~~~9n~ .of Article ~II. Synar v. United State"s, 626 F. Supp. :p74, 1382 (D.D.~.) (per curiam) (referring to -Pub. L .. No .. 99-1 77, § 274 (a) ( l) , 99 Stat. -: 81 - LIMITED OFFICIAL USE • 0 0 LIMITED OFFICIAL USE 103.7, 1098 (1985)), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714 ( 19 8. 6 ) . Other decisions have made it clear that the exercise of equitable discretion is not mandated by the Constitution, ,but rests instead.·on the comrnon,-law discretion of ~ourts to withhold injµnctive and declarat9ry relief on prudential grounds. For example, the "separation-of-powers con~E;:rn~" tltat und~rli~ th~ equitable discretion doctrine 11do hot deprive, the court of power to adj_udicate under Article III, 11 but merely counsel the court "to exercise judicial self-restraint."' Moore v. U.S. House ·of Representatives, i3-3. F.2d 946, 954 (D.C. Cir. 1984)', cert. denied, 469 U.S. 1106 (1985). Thus, given Congress' undoubted powe~ over the discretion of federal courts to grant .or·withhold injunctive and. declaratory relief, the Synar district court held that Congress by statute may eliminate the discretion of courts to exercise self-restraint and may compel them to hear and decide any action that presents a· "case" or "controversy" within the meaning of Article I_II. Cf. Warth v. Seldin, 422 U·. s. 490, 501 (1975) ("Congress may grant an express right of action to persons who otherwise would b~ barred by prudential standing rules."). This conclusion applies as -well to any equitable discretion the courts might have to withh9ld relief even after a statutory violation has been .found. See TVA v. Hill, 437 U.S. 153, 211-13 (1978) (Rehnquist, J., dissenting). As the Hill majority made clear in concluding that injunctive relief follows 'as a matt;:er of course for violations of the Endangered Species Act, id. at 193-9:;>, the extent of· the, courts' discr·etion is well within the control of ~ongress. C. Political Question Doctrine The nonjusticiability of political questions is based on the limitations of the "judicial Power" in Article I·II of the Constitution and therefore cannot be completely abrogated by statute. ·cf. United States v. Munoz-Flores, 495 U.S. 385, 394 (1990) (The political question doctrine "is designed to restrain the Judiciary from inappropriate interference in the business of the other branches .of Government.. 11 ) • Yet it may be possible ·to, displace the doctrine to some extent by an appropriately crafted statute. If Congress explicitly grants jurisdiction to the courts to entertain disputes under the WPR, confers standing on particular plaintiffs to.bring those disputes into court, and prescribes workable standa~ds for adjudicating and_ resolving the disputes, f ~ ~§ ~Q~ f~-~~!' tha; t{l~. 1 _ 1 p9~~~!cal_~ 7~tion 11 .doctrine would continue to stand as a constitutional barrier to all judicial deci!:>ionmaking in such cases. (,Typically, if not always, the "politi·cal question" doctrine has been invoked in - 82 - LIMITED OFFICIAL USE • LIMITED OFFICIAL USE casep where Congress has not created such statutory jurisdiction and procedures. See, ~, Baker v. Carr, 369 U.S. 186,, 215-16 n.43 (1962) .) 56 - For example, it may be possible to minimize the, application of the doctrine in the context of determining whether the armed' forces have been introduced, into "hostilities" or whether such use of the ~rrned force~ l'l~~ l:>e~n "terr~linated" by more precisely defining those terms. To the exterit that courts re·fuse to decide such issues because they cannot gain access to the "facts,•• Con￾gress could specifical:ly identify which facts are relevant. In t}?.i,s regard, Congress might also. impose a positive duty on the President or his agents to provide it with particular.k1rids-6i' ~acts regarding a m~litary operation. Of course, the provision of such facts was the intent of the reporting requirement of § 4(a) (1) in the first place. D. Ripeness To overcome Justice Powell's ripeness doctrine, Congress could unequivocally and specifically·assert its constitutional prerogatives, and also state that it se·eks a judicial resolution of the constitutiopal allocation of the war power between the Legislative and Executive Branches. It could do this either on a situation-by-situation basis or in a general statute. If this path is taken, the statute should specify who is authorized to assert these prerogatives in court -- both Houses pursuant to a concurrent ,resolution, either House pursuant to its own resolu￾tion, certain committees pursuant to the resolutions of their respective Houses or on their own motions, or.even individual ,members without further collegial actiori. This kind of statute should suffice to constitute the official action that Justice, Powell's doctrine would require. Of course~ to .the extent that ,court~ .apply the ripeness ·doctrine to require Congress to respond 56 The possibility of limiting application of the political question doctrine by statute is suggested in Michael J. Glennon, ·Constitutional.Diplomacy 112-13 (1990), which cites the example of the act-of-state doctrine. Although that judicially-created doctrine is a "subset" or 11species 11 of the political question· doctrine wi~h "constitutional underpinnings," id. at 112 (citing ·Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)), Congress· has, by statute, "drastically limited". the application of the doctrine, id. (citing 22 U.S.C. § 2370(e)(2)). According to Glennon, courts ·nave upfield the. validity of this· ,limitation. Id. (citing Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178-83 (2dCir. 1967), cert. denied, 390U.s.··956 (1968)). - 0·3 - LIMITED OFFICIAL USE • LIMITED OFFICIAL USE sit~ation-by-situation, a general, one-time-only statute would not suffice. - 84 - LIMITED OFFICIAL USE • Authorization for Continuing Hostilities in Kosovo Pub L. No. 106-31, the em ergency supplem ental appropriation for m ilitary operations in Kosovo, constituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) o f the W ar Powers Resolution. December 19, 2000 M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l This memorandum memorializes and explains advice we provided to you in May of 1999 regarding whether Pub. L. No. 106-31, 113 Stat. 57 (May 21, 1999), the emergency supplemental appropriation for military operations in Kosovo, con- stituted authorization for continuing hostilities after the expiration of sixty days under section 5(b) of the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (codified at 50 U.S.C. ?? 1541-1548 (1994)) (the " WPR" ). This Office advised that the appropriation did constitute such authorization. Subse- quently, the district court for the District of Columbia and the Court o f Appeals for the D.C. Circuit decided a lawsuit brought against the President by thirtyone members of Congress, who claimed that the President had violated the Con- stitution and the WPR by involving the United States in hostilities in Kosovo without congressional authorization. Neither the district court nor the court of appeals reached the merits of the plaintiffs' claims. The district court dismissed the suit for lack of standing, Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), and the D.C. Circuit affirmed the dismissal, also on standing grounds, 203 F.3d 19 (D.C. Cir.), cert, denied, 531 U.S. 815 (2000). Section I o f this memorandum summarizes the relevant provisions of the WPR, including section 8(a)(1), which provides that authorization may not be inferred from appropriation laws that do not specifically refer back to the WPR. Section II shows that the relevant case law, historical practice, and basic principles of constitutional law lead to the conclusion that appropriation laws may authorize military combat. Section III shows that section 8(a)(1) does not bar later Con- gresses from authorizing military operations through appropriations (an interpreta- tion that would be unconstitutional), but instead has the effect of creating a back- ground principle that may inform the interpretation of later Acts of Congress. Section IV shows that by enacting Pub. L. No. 106-31, Congress intended to enable the President to continue U.S. participation in Operation Allied Force. Finally, Section V presents this Office's conclusion that, even taking account of the background principle established by section 8(a)(1), Pub. L. No. 106-31 authorized the President to continue military operations in Kosovo.1 1Previous Administrations have expressed different views concerning the constitutionality of the W PR. Compare President Nixon's Veto o f the War Powers Resolution, H.R. Doc. No 93-171, at 1 (1973) (calling " unconstitutional" Continued 327 Opinions o f the Office o f Legal Counsel in Volume 24 I. The War Powers Resolution and Authorization o f Hostilities The W PR is framework legislation that sets forth procedures for reporting and authorizing hostilities. The statute begins with a congressional declaration of pur- pose: It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collec- tive 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 o r in such situations. 50 U.S.C. ? 1541(a).2 This section summarizes the most important provisions of the statute. The " core" of the WPR " resides in sections 4(a)(1) and 5(b)." John Hart Ely, War and R esponsibility 48 (1993).3 Section 4(a)(1) of the WPR requires the Presi- dent to submit a report to Congress whenever, " [i]n the absence of a declaration of w ar," United States Armed Forces are introduced " into hostilities or into situa- tions where imminent involvement in hostilities is clearly indicated by the cir- cumstances." 50 U.S.C. ? 1543(a)(1). Section 5(b) requires the President to " terminate any use o f the United States Armed Forces with respect to which [a] report [under section 4(a)(1)] was submitted (or required) [within 60 days there- after]" unless the Congress takes certain enumerated actions to authorize con- tinuing combat or " is physically unable to meet as a result of an armed attack upon the United States." 50 U.S.C. ? 1544(b). The 60 day period may be extended the provision in the W PR that " would automatically cut off certain authorities after sixty days unless the Congress extended them " ), with " Ask President Carter" . Rem arks Dunng a Telephone Call -- in Program on the CBS Radio Network," 1 Pub Papers o f Jimmy Carter 324 (M ar 5, 1977) (noting that W PR is an " appropriate reduction" in the President's power), Presidential Power to U se the Arm ed Forces Abroad Without Statutory Authorization, 4 A Op. O.L.C. 185, 196 (1980) ( " We believe that Congress may, as a general constitutional matter, place a 60day limit on the use o f our armed forces as required by the provisions of ? 1544(b) of the Resolution " ). In light of our conclusion that Congress lawfully authonzed continued hostilities beyond the 60-day statutory limit, we have no occasion to consider any constitutional arguments that might be made. 2The W PR had its origins in the Vietnam War. See 119 Cong. Rec. 1394 (1973) (statement of Senator Javits) ( " [WPR was] an effort to leam from the lessons o f the last tragic decade of war in Vietnam which has cost our Nation so heavily in blood, treasure, and morale. T he War Powers Act would assure that any future decision to commit the U nited States to any warmaking must be shared in by the Congress to be lawful " ); see also Thomas F. Eagleton, War and Presidential Power 107-123 (1974) (discussing background of WPR in Vietnam War). For discussion o f initial attempts to enact war powers legislation, see Thomas F. Eagleton, Congress and the War Powers, 37 Mo. L. Rev 1, 18-20 (1972); W illiam B. Spong. Jr., Can Balance Be Restored in the Constitutional War Powers o f the President and C ongress7, 6 U Rich L Rev 1, 18-28 (1971). Senator Eagleton introduced a war powers bill into the Senate in 1971 and played a prominent role in the Senate debates over war powers legislation Senator Spong, in conjunction with Senators Javits and Eagleton, managed the Senate War Powers legislation for the Foreign Relations Com m ittee See Eagleton, supra, at 134 3 We have outlined the general structure of the W ar Powers Resolution in Overview o f the War Powers Resolution, 8 Op. O L.C. 271 (1984). 328 Authorization fo r Continuing Hostilities in Kosovo for an additional 30 days if the President certifies to Congress that " unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in bringing about a prompt removal of such forces." Id. Thus, when a report under section 4(a)(1) is filed (or required to be filed), section 5(b)'s 60 day (or, in appropriate circumstances, 90 day) " clock" begins to run.4 Under section 5(b), Congress may, within the 60 day period, authorize con- tinuing hostilities after that period by any one of three methods: (1) by a declara- tion of war; (2) by enacting a " specific authorization for such use of United States Armed forces" ; or (3) by " extend[ing] by law such sixty-day period." 50 U.S.C. ? 1544(b). The section thus functions essentially as a burden-shifting device. As Judge Joyce Hens Green has observed: [T]he automatic cutoff after 60 days was intended to place the bur- den on the President to seek positive approval from the Congress, rather than to require the Congress positively to disapprove the action, which had proven so politically difficult during the Vietnam war. To give force to congressional power to declare war, Presi- dential warmaking would not be justified by congressional silence, but only by a congressional initiative . . . . Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982), o ffd , 720 F.2d 1355 (D.C. Cir. 1983).5 In addition to requiring the President to seek approval for con- tinuing hostilities, section 5(b) is also designed to hold Congress responsible for the ultimate decision over war and peace.6 4 The full text of section 5(b) reads as follows1 Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day penod, or (3) is physically unable to meet as a result of an armed attack upon the United States Such sixty-day penod shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in w nting that unavoidable military necessity respecting the safety o f United States Armed Forces requires the continued use of such armed forces in the course o f bnnging about a prompt removal o f such forces 50 U S.C ? 1544(b) 5 See also S Rep. No 93-220, at 28 (J973) ( " The way the bill is constructed . the burden for obtaining an extension under section 5 rests on the President He must obtain specific, affirmative, statutory action by the Congress in this respect." ), War Powers Legislation, 1973* Heanngs Before the Senate Comm on Foreign Relations, 93d Cong 243 (1973) (statement by Senator Jacob K. Javits) ( " The Senate bill, in Section 5 particularly, is very deliberately constructed so as to throw the burden of proof on the President to convince the Congress, with respect to the question o f authorizing an extension of his 'emergency' involvement of the Armed Forces in hostilities. I think it is essential, when the President has acted in the absence o f a declarauon of war, that the burden be on him to convince the Congress that he has acted in response to a bona fide emergency ''); 119 Cong Rec. 24,541 (1973) (remarks o f Sen. Javits). 6See S. Rep. No 93-220, at 19 (WPR " would not have been necessary if Congress had defended and exercised its responsibility in matters of war and peace" ); 119 Cong Rec. 24,544-45 (1973) (statement of Sen. Stennis) ( " [l]f this bill becomes law it will signal that the members of Congress are willing to assume a heavy duty -- the duty Continued 329 Opinions o f the Office o f Legal Counsel in Volume 24 By its terms, the statute contemplates possible mechanisms for authorizing hos- tilities other than a declaration of war. The decision as to which legal vehicle to choose is within Congress's power: it is well established that " it is constitu- tionally permissible for Congress to use another means than a formal declaration of war to give its approval to a w ar." Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973). See also M ontoya v. U nited States, 180 U.S. 261, 267 (1901) (" We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to des- patch a military force for their subjugation, is sufficient to constitute a state of war." ); Berk v. Laird, 317 F. Supp. 715, 722 (E.D.N.Y. 1970) (noting that plain- tiffs memorandum of law had listed 159 instances of the use of U.S. forces abroad from 1798 to 1945, o f which only six involved formal declarations of war by either side), a j f d sub nom., Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971); Hamilton v. M cClaughry, 136 F. 445, 449 (D. Kan. 1905) (" A formal declaration of war . . . is unnecessary to constitute a condition of war." ); United States v. Castillo, 34 M.J. 1160, 1164 (N.M.C.M.R. 1992) (" Congress may assent to the waging of war by means other than a formal declaration of war, and what form it chooses to record that assent is within its discretion to decide." ). Moreover, in the period since the WPR was enacted, Congress has explicitly authorized hos- tilities under the statute without declaring war.7 Congress has in fact often author- ized hostilities by legislative measures other than formal " declarations of war" since the days of the early republic.8 Indeed, at the time of the Founding, formal to use their best judgm ent and to share with the President the responsibility for the most important decision a nation can make, the decision o f w hether or not to go to w ar.4'); Thomas F. Eagleton, The August 15 Compromise and the War Powers o f Congress, 18 St. Louis U L J . 1, 8 (1973) ( " [I]t should be more apparent now than ever that Congress will not exercise its war powers unless legislation is enacted clearly reaffirming that Congress alone must bear the responsibility for authorizing the commitment of American forces to hostile action." ). War Powers Legisla- tion, 1973: Hearings Before the Senate Comm on Foreign Relations, 93d Cong. 20 (1973) (statement of Prof Alex- ander M Bickel, Yale University Law School) ( " Congress will not tikely-- I had nearly said, cannot ever-- be brought to resume exercise o f its share o f the war pow er through specific actions until it has in declarative fashion reallocated a share o f the responsibility to itself. T he people tend not to hold Congress responsible, and its own Members tend to avoid the responsibility." ), Ely, supra, at 48 ( " Like the Gramm-Rudman-Hollings Budget Control Act o f 1985 and other recent 'fram ew ork' legislation, the W ar Powers Resolution is designed to force a decision regarding matters that Congress has in the past show n itself unwilling to face up to . . . [Section 5(b)] provides that once the Resolution is triggered by the commitment o f troops, Congress itself has sixty days to make the critical decision on war and peace " ) 7The joint resolution authorizing the Persian G ulf War in 1991, Pub L No. 102-1, 105 Stat. 3 (1991) (reprinted at note following 50 U S C ? 1541), for example, " is not styled a declaration of war and does not appear to be so," Castillo, 34 M.J. at 1164; nonetheless, it unquestionably (and in terms) provided specific statutory authorization within the meaning o f section 5(b) for the conflict that ensued, see note at ? 2(c)(1) ( " Consistent with section 8(a)(1) of the W ar Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning o f section 5(b) o f the War Powers Resolution." ) (internal citations omitted). Simi- larly, the M ultinational Force in Lebanon Resolution, Pub. L. No 98-119, 97 Stat 805 (1983), reprinted at note following 50 U S.C. ? 1541, expressly authonzed the continued presence o f United States Armed Forces in Lebanon for 18 months following the date o f the statute's enactment and did not involve a declaration of war See id. ?2(c) (" The Congress intends this joint resolution lo constitute the necessary specific statutory authorization under the W ar Powers Resolution for continued participation by United States Armed Forces in the Multinational Force in Lebanon " ) s See, e.g., Bas v. Tingy, 4 U S (4 Dali.) 37 (1800) (awarding compensation under Act of Congress dealing with recapture o f ships from " the enem y" , France deem ed " the enem y" although Congress had not declared war dunng 330 Authorization fo r Continuing Hostilities in Kosovo " declarations" of war were increasingly rare in state practice,9 and prominent legal theorists known to the Founders had analyzed other legal devices for author- izing war.10 Moreover, whatever their view of the scope of the President's authority to conduct hostilities, scholars agree that Congress could authorize con- flict through measures other than a formal declaration of war.11 Finally, section 8(a) of the WPR elaborates on the " specific authorization" option: Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred -- period o f quasi-war with France after 1798), Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power The Origins 139, 164 (1976) (noting lhat, with respect to the quasi-war with France, President Adams " gradually convinced Congress to authonze hostilities without a declaration" and that, in Bas v. 7i#igy," [t]he Supreme Court unambiguously confirmed the power o f Congress to authorize hostilities in any degree without declaring war" ), Gerhard Casper, Separating Power Essays on the Founding Period 62 (1997) (discussing Congress's decision not to declare war with Algiers, as requested by President Madison, but to authonze limited naval warfare instead), Louis Fisher, Presidential War Power 17--18 (1995) (arguing that Congress had authonzed quasi-war with France through several dozen bills supporting military action by President Adams); id at 13 (noting that Congress authonzed early Indian wars through legislation authonzing protection o f frontier); Erwin N. Griswold, The Indochina W ar-- Is It Legal, reprinted in 117 Cong Rec 28,977 (1971) ( " The notion of a war authonzed by Congress in a fashion less dramatic than a formal declaration of war has been accepted slr.cc earliest years of our national existence." ). Memorandum from William H. Rehnquist, Assistant Attorney G c .^ u l, Office of Legal Counsel, Re: The President (The G u lf o f Tonkin and the War Power' South Vietnam and the Cambodian Sanctis---- r z* 25 (May 22. Resolution " expressly authorized extensive military involvement bv the United States . . To reason that if the caption 'Declaration of W ar' had appeared at the top o f the resolution, this involv^r.w.i would be permissible, but that the identical language without such a caption does not give effective congressional sanction to it at all, would be to treat this most nebulous and ill defined o f all areas o f the law as if i* were a problem in common law pleading." ), Alexander M. Bickel, Congress, the President and the Power to Wage w ar, 48 Chi -Kent L Rev. 131, 139-40 (1971) ( " ITJhere is utterly no reason to think that Congress ha<< oo-'. j the mega-power to declare war . . . and no mini- or intermediate power to commit the country io 5>uineiiung less than a declared war. Congress . . . has the necessary-and-proper power, the power to do anything that is necessary and proper to carry out the functions conferred upon it and upon any other department or officer of the government. If in the conditions of our day it is necessary to carry out the power to declare war by taking measures short of a declaration of war, everything in the scheme o f government set up by the Constitution indicates that Congress has the needed authonty." ). 9Thus, when France in 1778 entered the Revolutionary War as an ally of the Colonies against Great Bntain, it did not issue a " Declaration of W ar" -- although it did so in June, 1779 See Samuel Flagg Bemis, The Diplomacy o f the American Revolution 136, 145 (1967 repnnt o f 1935 ed ) 10 See W. Taylor Reveley III, War Powers o f the President and Congress: Who Holds the Arrows and Olive Branch? 54-55 (1981) (Legal theonsts known to Founders had " examined in detail undeclared or 'imperfect' war, noting that it was generally limited in scope, designed to redress gnevances, and prosecuted through restncted govern- ment action or private war making under letters of marque and repnsal [UJndeclared war was the norm in eighteenth-century European practice, a reality brought home to A mencans when Bntain's Seven Years' War with France began on this continent." ) See also The Federalist No. 25, at 161 (A. Hamilton) (Jacob E. Cooke e d , 1961) ( " [TJhe ceremony o f a formal denunciation o f war has of late fallen into disuse " ), W illiam Michael Treanor, Fame, The Founding, and The Power to Declare War, 82 Cornell L Rev. 695, 709 (1997). iy See, e g , Ely, supra, at 25 (noting that the idea that congressional combat authorizations must be labeled " dec- larations of w ar" is " manifestly out o f accord with the specific intentions of the founders" and that " most eight- eenth-century wars were not 'declared' in so many words, a fact o f which the founders took specific and approving note " ), Fisher, supra, at 9 (1995) ( " The framers were well aware that nations approved war either by declaration or authorization " ), Charles A Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L J . 672, 694 (1972) (" In sum, familianty with Grotius and his successors and with then-recent history would have suggested to one in the late 1780's that undeclared war was no oddity ." ). 331 Opinions o f the Office o f Legal Counsel in Volume 24 (1) from any provision of law . . . including any provision con- tained in any appropriations Act, unless such provision specifically authorizes the introduction o f United States Armed Forces into hos- tilities or into such situations and states that it is intended to con- stitute specific statutory authorization within the meaning of this chapter. 50 U.S.C. ? 1547(a)(1). Like section 5(b), section 8(a) implicitly recognizes that Congress may authorize hostilities by means other than a declaration of war. Because it purports to allow Congress to authorize hostilities through appropriation statutes that specifically invoke the WPR, section 8(a) further recognizes that appropriation statutes may, under some circumstances, authorize hostilities. II. Appropriations and Authorization o f M ilitary Combat The Supreme Court has recognized that, as a general matter, appropriation stat- utes may " stand[] as confirmation and ratification of the action of the Chief Executive." Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. I l l , 116 (1947). Congress may also " amend substantive law in an appropriations statute, as long as it does so clearly." Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440 (1992). " [W]hen Congress desires to suspend or repeal a statute in force, '[t]here can be no doubt that . . . it could accomplish its purpose by an amend- ment to an appropriation bill, or otherwise.' United States v. Dickerson, 310 U.S. 554, 555 (1940). 'The whole question depends on the intent of Congress as expressed in the statutes.' United States v. Mitchell, 109 U.S. 146, 150 (1883)." United States v. Will, 449 U.S. 200, 222 (1980). Indeed, on numerous occasions, the Supreme Court has applied this general principle to find that Congress had authorized or ratified executive branch action through appropriation measures. For example, in Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 147 (1937), the Court held that Congress had ratified the abolition of the Shipping Board and the transfer o f its functions to the Department o f Commerce by a series of subsequent appropriation acts. Likewise, in Wells v. Nickles, 104 U.S. 444, 447 (1881), the Court found that Congress had author- ized the Department of the Interior to appoint agents to protect timber on govern- ment land through " appropriations made to pay for the services of these special timber agents." And in Ludecke v. Watkins, 335 U.S. 160, 173 n.19 (1948), the Court explained that Congress had " recognized . . . the President's powers under the Alien Enemy Act of 1798" to remove enemy aliens summarily in time of declared war " by appropriating funds" for the maintenance, care, detention, surveillance, and transportation of such aliens. See also Ex Parte Mitsuye Endo, 323 U.S. 283, 303 n.24 (1944) (noting that to authorize executive action through 332 Authorization fo r Continuing Hostilities in Kosovo appropriations, Congress " must plainly show a purpose to bestow the precise authority which is claimed" ); Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive o r Presidential Agreements: Interchangeable Instruments o f National Policy , 54 Yale L J. 181, 271 (1945) (noting that Congressional approval of American membership in international organizations such as the PanAmerican Union " may readily be inferred from [a] long series of acts appro- priating funds to defray the United States' aliquot portion of operating expenses" ). The notion that Congress can authorize hostilities through appropriation laws follows directly from this general principle. As Ely explains: Throughout the course of the [Vietnam] war, hundreds o f billions of dollars were appropriated to support it, and the draft was repeat- edly extended. Supporters understandably cited these measures as further congressional authorization. The law generally pertaining to authorization by appropriation is about what first-order common sense suggests it should be. If there is no reason to infer that Congress knew what the agency or pro- gram in question was about, the fact that it was buried in an appro- priations measure is typically not taken to constitute authorization of it. If the program was conspicuous, it is. Indeed, assuming suffi- cient notice of what was going on, appropriations may in some ways constitute unusual evidence of approval, in that typically Con- gress acts twice -- once lo authorize the expenditure and again to appropriate the money. Ely, supra, at 27. Indeed, Congress has on numerous occasions authorized U.S. involvement in armed conflict at least in part through appropriation laws. As we explained in our 1984 overview of the WPR, " [p]rior to the enactment of the WPR, many enactments of Congress, especially appropriations measures, could justifiably have been regarded by the Executive as constituting implied authority to continue the deployment of our armed forces in hostilities." 8 Op. O.L.C. at 273 n.4. In several instances in early Administrations, appropriation laws played an important role in authorizing or ratifying presidential use of the Armed Forces in situations of conflict. For example, President George Washington " used force against the Wabash Indians pursuant to a statute that provided forces and author- ized the call-up of militia to protect frontier inhabitants from the hostile incursions of Indians. This statute, along with the requests and debates that accompanied it, and the appropriations that follow ed its adoption, made clear that Congress approved the military engagements Washington undertook against the Wabash." Abraham D. Sofaer, The Power O ver War, 50 U. Miami L. Rev. 33, 41 (1995) (emphasis added) (footnote omitted); see also John C. Yoo, The Continuation o f 333 Opinions o f the Office o f Legal Counsel in Volume 24 Politics By Other M eans: The O riginal Understanding o f War Pow ers , 84 Cal. L. Rev. 167, 291 (1996) (noting o f Washington's campaign against the Indians in the Northwest that " Congress' approval of the appropriation . . . constituted an explicit authorization of the President's war plans." ). Congress also authorized President Adams to conduct the undeclared Quasi-War against France in part by appropriating funds to strengthen the military. See Sofaer, War, Foreign Affairs and Constitutional Power, supra at 139-66 (describing appropriation laws and other measures by which Congress authorized hostilities against France); Yoo, supra, at 292 ( " Congress approved Adams' designs to wage a naval war against France by supplying the funds for the bulked up military." ). Another instance in which appropriation laws or procurement statutes were thought by some mem- bers of Congress to provide some measure of authority for the use of force occurred in the course of the Monroe Administration's efforts to annex Florida. See Sofaer, The P ow er Over War, supra, at 47-48 ( " A long and important Congressional debate followed these events. . . . The classic arguments con- cerning the meaning of the power to declare war were made on both sides of the issue, including the argument that Congress had authorized the actions in Florida by providing the funds to pay the m ilitia." ); see also David P. Currie, Rumors o f Wars: Presidential and Congressional War Powers, 1809-1829, 67 U. Chi. L. Rev. 1, 14--15 (2000) (noting George Poindexter's argument that Con- gress had authorized President M onroe to order General Jackson to cross into Spanish territory to wage defensive war on the Seminoles by appropriating funds for the action). So-called " Indian" wars, which were common in American history, were also not declared wars; rather, Congress was said to have authorized or ratified them by a variety of means, including voting appropriations to pay the troops called out and to defray the expenses of campaigns. See Alire v. United States, 1 Ct. Cl. 233, 238 (1865) (quoting report o f the Secretary of W ar that says: " And Con- gress has seldom failed to recognize and ratify [the so-called 'Indian wars'], by voting appropriations and to pay the troops called out and defray the expenses incident to such expeditions." ), r e v 'd on other grounds, 73 (6 Wall.) U.S. 573 (1867). In 1838, Attorney General Butler opined that war had been waged on the Seminole Indians " by authority of the legislative department, to whom the power o f making war has been given by the constitution," because Congress had both " recognised the commencement of these hostilities, and appropriated money to suppress them ," and because it had later made " [s]everal appropriations for the same object." Existence of W ar With the Seminoles, 3 Op. Att'y Gen. 307 (1838). In 1905, a district court held that President McKinley's intervention in China during the Boxer Rebellion constituted war, and was ratified by Congress's decision to vote wartime pay to the troops who served on the expedition. See Hamilton, 136 F. at 451. It has also been argued that Congress ratified the Korean War by enacting several major pieces of war-related legislation during that con- 334 Authorization fo r Continuing Hostilities in Kosovo flict, including a bill to increase taxes by $4.7 billion to help pay for the war. See Ely, supra, at 11 (" [B]efore the war was over Congress had voted draft exten- sions and special appropriations which by some people's lights constituted suffi- cient authorization . . . ." ). The most conspicuous example of Congress authorizing hostilities through its appropriations power occurred during the War in Vietnam. See William C. Banks & Peter Raven-Hansen, National Security Law and the Power o f the Purse 119 (1994) (" The paradigm of what we have called legitimating appropriations -- appropriation measures from which the executive infers authority for national security actions -- is the succession of appropriations for military activities in Southeast Asia during the Vietnam War." ). In that war, the State Department Legal Adviser argued that Congress had authorized the conflict, not only through the Gulf of Tonkin Resolution, 78 Stat. 384 (1964), but also by enacting supple- mental appropriations bills. Noting that the Gulf of Tonkin Resolution provided that Congress could terminate that statute by concurrent resolution, and that Con- gress had not in fact done so, Leonard Meeker, the State Department's Legal Adviser during the Johnson Administration, pointed out that [i]nstead, Congress in May 1965 approved an appropriation of $700 million to meet the expense of mounting military requirements in Viet-Nam. (Public Law 89-18, 79 Stat. 109.) The President's mes- sage asking for this appropriation state[s] that .this was " not a rou- tine appropriation. For each Member of Congress who supports this request is also voting to persist in our efforts to halt Communist aggression in South Vietnam." The appropriation act constitutes a clear congressional endorsement and approval of the actions taken by the President. On March 1, 1966, the Congress continued to express its support of the President's policy by approving a $4.8 billion supplemental military authorization by votes of 392-4 and 93-2. An amendment that would have limited the President's authority to commit forces to Viet-Nam was rejected by a vote of 94-2. Leonard C. Meeker, The Legality o f United States Participation in the Defense o f Viet-Nam, 54 Dep't St. Bull. 474, 487-88 (1966) (footnote omitted).12 Five years later, the Solicitor General Erwin Griswold made similar arguments. Maintaining that the Vietnam War was congressionally authorized, Griswold said: 12Senator Eagleton objected to the State Department's reasoning because " I could not accept the idea that broad appropriations acts authorizing money for a large number o f vital governmental functions could be read as specific authorizations for hostilities." Eagleton, supra, at 125. However, the Slate Department's argument rested, not on such broad appropriation acts, but on specific appropriations for the war in Vietnam See Pub L No 89-18, 79 Stat 109 (1965) (appropriating $700 million " upon determination by the President that such action is necessary in connection with military activities in southeast Asia" ) 335 Opinions o f ihe Office o f Legal Counsel in Volume 24 Perhaps even more important than the Tonkin Gulf Resolution is the fact that Congress has consistently backed and supported the actions of the President in all the intervening years. Early in 1965, President Johnson asked for and obtained a special appropriation of seven hundred million dollars, for the express purpose of car- rying on military action in Southeast Asia. This was granted by an Act of Congress approved on May 7, 1965. The vote in Congress was 408 to 7 in the House, and 83 to 3 in the Senate. This is an unusual appropriations act, in that it consists of a single item. Thus, there is no possibility that it passed through Congress by inadvertence, or that the report for it may have been coerced, as in the case of a rider. . . . After this, there were many legislative acts by Congress, taken in full knowledge of the situation in South- east Asia, and in support of the President's actions. Erwin N. Griswold, The Indochina W ar-- Is It Legal?, reprinted in 117 Cong. Rec. 28,978 (1971). Several courts and legal scholars have agreed that the appropriations provided by Congress to fund the war played an important (and in some cases dispositive) role in authorizing armed conflict in Vietnam. For example, directly following his observation that Congress can authorize executive action through appropria- tions if the program in question is " conspicuous," Professor Ely notes: " In this case, it would be an understatement to say that the program for which Congress was appropriating funds (and extending the draft) was conspicuous. In May of 1965 Congress enacted a special appropriation of $700 million for 'military activi- ties in southeast Asia.' " Ely, supra, at 27; see also id. at 27-30 (explaining why appropriations constituted authorization and rejecting arguments to the contrary); Da Costa v. Laird, 448 F.2d 1368, 1369 (2d Cir. 1971) ( " [T]here was sufficient legislative action in extending the Selective Service Act and in appropriating bil- lions o f dollars to carry on military and naval operations in Vietnam to ratify and approve the measures taken by the Executive, even in the absence of the Gulf o f Tonkin resolution." ); Berk, 317 F. Supp. at 724-28 (reviewing appropria- tions acts for Vietnam War, and holding that they authorized hostilities); Orlando, 443 F.2d at 1042 (identifying appropriation bills, as well as the Tonkin Gulf Reso- lution and the extension of the Military Selective Service Act, as demonstrating that " [t]he Congress and the Executive have taken mutual and joint action in the prosecution and support of military operations in Southeast Asia from the beginning o f those operations" ); M itchell, 488 F.2d at 615 (concluding otherwise but noting that " [t]he overwhelming weight of authority . . . holds that the appro- priation, draft extension, and cognate laws enacted with direct or indirect reference to the Indo-China war . . . did constitute a constitutionally permissible form of assent." ); Philip Bobbitt, War Powers: An Essay on John Hart E ly 's War and 336 Authorization fo r Continuing Hostilities in Kosovo Responsibility: Constitutional Lessons o f Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364, 1392 (1994) ( " [Sjtatutes -- defense appropriation acts, defense authorizations -- can serve as the basis on which the President may validly commit U.S. forces without further returning to Congress for fresh mandates beyond those given by statute. This was the history of the entirely valid constitutional authoriza- tion of the Vietnam War, and Ely forthrightly, and, I think, courageously, acknowledges this." ); Norman A. Graebner, The President As Commander in Chief: A Study in Power, in Commander in Chief: Presidential Leadership in Modern Wars 42 (Joseph G. Dawson, III ed., 1993) ( " A congressional majority underwrote the war in Vietnam from 1961 until 1973 through its power of the purse; that war always belonged to Congress as much as to the presidents. They fought it together." ).13 Finally, although the court of appeals in Holtzman v. Schlesinger, 484 F.2d 1307, 1313 (2d Cir. 1973), invoked the political question doctrine and thus did not reach the merits of the claim that President Nixon lacked the authority for the bombing of Cambodia after the cease-fire in Vietnam and the removal of United States prisoners of war from that country, it indicated that, if it had reached the merits, it would have found that a provision of the Joint Resolution Continuing Appropriations for Fiscal 1974, Pub. L. No. 93-52 (1973), " support[ed] the propo- sition that the Congress has approved the Cambodian bombing." See also Thomas F. Eagleton, The August 15 Compromise and the War Powers o f Congress, 18 St. Louis U. L.J. at 1 (" On June 29 . . . [i]t was clear that neither the American people nor Congress wanted a continuation of the bombing. But before that legis- lative day was over, Congress would authorize a forty-five day war in Indo- china." ). Some have argued that, on the contrary, appropriation statutes that fund ongoing war efforts do not constitute authorization of those war efforts. See Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog o f War: The War Pow er of Congress in H istory and Law 227-34 (2d ed. 1989); War Powers Legislation: Hearings Before the Senate Comm, on Foreign Relations, 92d Cong. 23 (1973) (statement of Professor Alexander M. Bickel) ( " To appropriate money in support of a war the President is already waging, it seems to me, is no more to ratify his action in responsible fashion than to appropriate money for the payment of 13 It has also been suggested that even after the repeal o f the G ulf of Tonkin Resolution, See Pub. L No. 91672, ?12, 84 Stat. 2053, 2055 (1971) (repealing Gulf o f Tonkin Resolution), C ongress' continuing appropriations for the war effort were sufficient to authonze continuing hostilities in Vietnam. As Ely notes [The intentions o f those who voted to repeal the Tonkin Gulf Resolution] would not have mattered, had the Tonkin G ulf Resolution stood as o f 1971 as the only congressional authorization for the war- When the only authorization goes, the war goes, irrespective o f what people think they are up to However, by 1971 the situation was far from that: Congress had by then, by a number of appropriations measures, quite pointedly reiterated its authorization of the war. Moreover, and not surprisingly under the cir- cumstances, it continued after its repeal of the Tonkin Gulf Resolution to appropriate funds for military activities in Southeast Asia, and to extend the draft Tantalizing as the repeal must thus have seemed to those wishing to mount a legal attack on the war, it unfortunately was just more o f C ongress's playing Pontius Pilate Ely, supra, at 33 337 Opinions o f the Office o f Legal Counsel in Volume 24 his salary." ); M itchell, 488 F.2d at 615 (" This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war." ); Campbell, 203 F.3d at 31 n.10 (Randolph, J., concurring) (citing and quoting Mitchell for the same proposition). This argument can take one of two forms. First, one could argue that a general defense-related appropriation statute does not authorize the ongoing hostilities because it provides only general defense-related funds and does not indicate any approval o f the specific hostilities at issue. While this might be true, it does not undermine the basic principle explained above -- that an appro- priation statute specifically and conspicuously aimed at funding hostilities may constitute authorization of those hostilities. Second, some have argued that appro- priations, regardless of how specific they may be with respect to ongoing war efforts, should not be interpreted to authorize continuing military operations because those appropriations could just as easily be understood as providing resources for men and women already in combat, simply to ensure that they do not suffer as a result of a disagreement between the Executive and the Congress regarding the wisdom of the deployment. See, e.g., Mitchell, 488 F.2d at 615 (declining to decide whether President Nixon had exceeded his constitutional power on political question grounds, but noting that, " in voting to appropriate money or to draft men a Congressman is not necessarily approving the continu- ation of a war no matter how specifically the appropriation or draft act refers to that war. . . . An honorable, decent, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture." ).14 Although this may be true in some cases, in other cases, as Ely explains, this proposition " doesn't make sense . . . [because] Con- gress could [phrase] its funds cut-off as a phase out, providing for the protection of the troops as they [are] withdrawn." Ely, supra, at 29. Congress took such a step with respect to hostilities in Somalia in November of 1993, when it provided that funds could be obligated beyond March of 1994 only " to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia." Pub. L. No. 103-139, ? 8151(b)(2)(B), 107 Stat. 1418, 1476 (1993). Alternatively, Congress could pre- clude the use o f funds to introduce additional troops, as it did through the 1971 Cooper-Church Amendment, which provided that " none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia." Pub. 14 See also Note, Congress, The President, and the Power to Commit Forces to Combat, 81 Harv. L Rev 1771, 1801 (1968) ( " The difficulty with the argument [that appropriations constitute approval of warmaking] is that since such appropriations must generally come after the hostilities have already begun, the effective choice remaining to Congress is likely to be severely limited " ) 338 Authorization fo r Continuing Hostilities in Kosovo L. No. 91-652, ?7(a), 84 Stat. 1942, 1943 (1971).15 In the end, the question whether a particular targeted appropriation constitutes authorization for continuing hostilities will turn on the specific circumstances of each case.16 In sum, basic principles of constitutional law -- and, in particular, the fact that Congress'may express approval through the appropriations process -- and histor- ical practice in the war powers area, as well as the bulk of the case law and a substantial body of scholarly opinion, support the conclusion that Congress can authorize hostilities through its use of the appropriations power. Although it might be the case that general funding statutes do not necessarily constitute congressional approval for conducting hostilities, this objection loses its force when the appro- priations measure is directly and conspicuously focused on specific military action. III. Appropriations and the War Powers Resolution This section analyzes whether the WPR bars Congress from authorizing military operations through an appropriation measure unless the appropriation measure " states that it is intended to constitute specific statutory authorization within the meaning of this chapter." 50 U.S.C. ? 1547(a)(1) (section 8(a)(1) of the WPR). We conclude that the WPR does not constitute such a bar, but instead has the effect of establishing a background principle against which to interpret later Acts of Congress. Section 5(b) of the WPR permits continuation of hostilities when a congres- sional enactment represents " specific authorization for such use of United States Armed Forces." 50 U.S.C. ? 1544(b). As has been discussed, courts, government officials, and scholars have repeatedly (although not uniformly) recognized that appropriation statutes may constitute authorization for conflict. Thus, if the WPR did not provide any further interpretive gloss on the question, it would appear that an appropriation statute -- if enacted for the purpose of continuing hos- tilities-- would be " specific authorization." Section 8(a) of the WPR, however, provides that authority " shall not be inferred . . . from any provision of law 15 Banks and Raven-Hansen explain ihe difficulty with the objection lhat it is impossible to construe national security appropriations as ratification because of the circumstances o f their enactment' The objection is exaggerated and ahistoncal It seems to proceed on the assumption that Congress's choices are all or nothing, fund or deny all funding. But the Vietnam War itself showed lhat Congress has inter- mediate options, including funding phaseouts, prospective cutoffs, and, subject to separation o f powers limits, area limitations. In fact, given ihe scope o f ihe president's commander-in-chief powers, it is doubtful that Congress constitutionally could eul off the funds so abruptly that American lives would be placed ai grave risk Banks & Raven-Hansen, supra, at 135 In addition to the Vietnam phase-out appropriations, Banks and RavenHansen also point to the Boland Amendments, which limited how funds appropriated for support of the Contras could be used, see, e g .. Pub. L. No. 97-377, ?793, 96 Stat. 1830, 1865 (1982) (providing that funds could not be used by the Central Intelligence Agency or the Department o f Defense to " furnish military equipment, military training o r advice . . . for the purpose o f overthrowing the Government of Nicaragua or provoking a military exchange between Nicaragua and Honduras" ), as an example o f such a " restrictive appropriation " See Banks & Raven-Hansen, supra, at 137-48. 16 We explain in Part IV, infra, why the circumstances here lead us to conclude that Pub L No 106-31 constituted authorization for continuing hostilities in the Federal Republic of Yugoslavia 339 Opinions o f the Office o f Legal Counsel in Volume 24 . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter." 50 U.S.C. ? 1547(a). In assessing whether an appropriation statute can constitute authoriza- tion, the critical question thus becomes how to understand section 8(a)(1). The precursor of section 8(a)(1) is section 3(4) of S. 440, the version of the WPR passed by the Senate. That section provided that a specific statutory authorization shall not be inferred (A) from any provision of law hereafter enacted, including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of such Armed Forces in hostilities . . . and specifically exempts the introduction of such Armed Forces from compliance with the provisions of this Act.17 The most significant interpretive guide to this language is the Senate Report, which stated: " The purpose of this clause is to counteract the opinion in the Orlando v. Laird decision of the Second Circuit Court holding that passage of defense appropriations bills, and extension of the Selective Service Act, could be construed as implied Congressional authorization for the Vietnam war." S. Rep. No. 93-220, at 25. In Orlando, the court o f appeals had rejected the argument of the plaintiff enlisted men that " congressional authorization cannot, as a matter of law, be inferred from military appropriations or other war-implementing legisla- tion that does not contain an express and explicit authorization for the making of war by the President." 443 F.2d at 1043. The House version of the WPR did not contain an analogous provision.18 The Conference Report indicates that the Senate version was the source of the " spe- cific statutory authorization" language in the final bill. See H.R. Conf. Rep. No. 93-547, at 2 (1973). That language, according to the Senate report on S. 440, was intended to " guard against the passage of another resolution of the Tonkin Gulf type" by requiring that " any area resolutions, to qualify under this bill as a grant o f authority to introduce the armed forces into hostilities . . . meet certain carefully drawn criteria -- as spelled out in the language of [? 8(a)(1)]." S. Rep. No. 93-220, at 24. The Report further explained that " authorization to continue using the Armed Forces is to come in the form o f specific statutory [authorization] for this purpose. This is to avoid any ambiguities such as possible efforts to con- strue general appropriations or other such measures as constituting the necessary 17 S 440, as passed by the Senate on July 20, 1973, is reprinted in William B Spong, Jr., The War Powers Resolution Revisited: Historic Accomplishment or S u r r e n d e r 16 W m & Mary L. Rev 823, 878-82 (1975). l8Section 4(b) o f H.J. Res. 542, passed by the House on July 18, 1973, provided that " [w]ithin one hundred and twenty calendar days after a report is submitted o r is required to be submitted pursuant to section 3, the President shall term inate any commitment and remove any enlargement o f United States Armed Forces with respect to which such report was submitted, unless the Congress enacts a declaration o f war or a specific authorization for the use of United States Armed Forces," but the House version neither defined " specific authorization" nor provided that an appropriations measure not refem n g back to th e WPR could not constitute such an authorization. See Spong, supra, at 874--77 (reprinting H J. Res. 542) 340 Authorization fo r Continuing Hostilities in Kosovo authorization for such 'continued use.' " Id. at 29. Congress thus required that authorizing legislation expressly reference the WPR to avoid " any ambiguities" regarding congressional intent to sanction continued hostilities. To the extent, however, that this interpretation would take from Congress a constitutionally permissible method of authorizing war, it runs afoul of the axiom that one Congress cannot bind a later Congress. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (noting that, in contrast to a constitution, legis- lative acts are " alterable when the legislature shall please to alter [them]" ); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135 (1810) (noting that " [t]he correctness of [the] principle," " that one legislature is competent to repeal any [law] which a former legislature was competent to pass, and that one legislature cannot abridge the powers of a succeeding legislature," " can never be controverted" ); Street v. United States, 133 U.S. 299, 300 (1890) (statute " was not intended to have, [and] could not have, any effect on the power of a subsequent Congress" to enact a different policy).19 Underlying this axiom is the principle that one Congress cannot surrender through legislation power that the Constitution vests in Congress. To believe otherwise would be to assume that " new legislators [could] automati- cally be bound by the policies and undertakings of earlier days." United States Trust Co., 431 U.S. at 45 (Brennan, J., dissenting). Applying this general principle to the issue of section 8(a)(l)'s constitutionality, Professor Philip Bobbitt has argued that, were section 8(a)(1) read to bind subse- quent Congresses, it would be unconstitutional: [F]ramework statutes -- like Gramm-Rudman, for example -- cannot bind future Congresses. If Congress can constitutionally authorize the use of force through its appropriations and authoriza- tion procedures, an interpretive statute that denies this inference -- as does . . . the original War Powers Resolution -- is without legal effect. On the other hand, if one Congress could bind subsequent Congresses in this way, it'would effectively enshrine itself in defi- ance of [an] electoral mandate. Imagine, for example, a statute that provided that no appropriations or authorization provision shall exceed a term of six months or an act that forbade the President from interpreting any subsequent statute as permitting him to issue regulations to enforce that statute unless specifically authorized to ]9 See also U nited Stales Trust Co v. New Jersey, 431 U.S 1, 45 (1977) (Brennan, J., dissenting); CommunityService Broad, o f Mid-America, Inc. v. FCC, 593 F 2 d 1102, 1113 (D C Cir. 1978) ( " Congress is generally free to change its mind, in amending legislation Congress is not bound by the intent of an earlier body " ), Puerto R ico-- United States Bilateral Pact o f Non-territorial Permanent Union and Guaranteed Citizenship Act. Hearing on H.R. 4751, Before the H ouse Comm, on Resources, 107th Cong. 17 (2000) (Statement of W illiam M Treanor, Deputy Assistant Attorney General, Office of Legal Counsel) (" [A]s a general matter, one Congress cannot bind a subsequent C ongress" ); M emorandum for the Special Representative for Guam Commonwealth, from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Re. M utual Consent Provisions m The Guam Commonwealth Legislation 6 (July 28, 1994) ( " [0]ne Congress cannot bind a subsequent Congress, except where it creates vested nghts enforceable under the Due Process Clause of the Fifth Amendment " ) 341 Opinions o f the Office o f Legal Counsel in Volume 24 do so therein. A rule of interpretation, if it contravenes a valid con- stitutional power -- in this case, . . . that a subsequent Congress could constitutionally endorse a war by an appropriations and authorization statute -- would amount to a restriction on the ability of a Congress to repeal by inference preexisting law. Such a fresh hurdle to later legislation is nowhere authorized by the Constitution and is inconsistent with the notion of legitimacy derived through the mandate o f each new Congress. 92 Mich. L. Rev. at 1399.20 This argument is compelling. If section 8(a)(1) were read to block all possibility of inferring congressional approval of military action from any appropriation, unless that appropriation referred in terms to the WPR and stated that it was intended to constitute specific authority for the action under that statute, then it would be unconstitutional. As discussed in the previous section, under the Con- stitution, Congress can authorize or ratify presidential engagement in hostilities through an appropriation law. One statute, such as the WPR, cannot mandate that certain types of appropriation statutes that would otherwise constitute authorization for conflict cannot do so simply because a subsequent Congress does not use certain " magical passwords." M arcello v. Bonds , 349 U.S. 302, 310 (1955) (holding that detailed procedures established by the Immigration and Naturaliza- tion Act applied despite discrepancies between that Act and the Administrative Procedure Act (" APA" ) and despite the fact that the APA provided that exemp- tions from its requirements must be expressly indicated). As Banks and RavenHansen have put it, " [i]t follows that the 93d Congress that enacted the War Powers Resolution cannot control the way in which [a later] Congress expressfes] their intent." Banks & Raven-Hansen, supra, at 131. In order to avoid this constitutional problem, we do not interpret section 8(a)(1) as binding future Congresses but instead as having the effect of estabUshing a background principle against which Congress legislates. In our view, section 8(a)(1) continues to have operative legal effect, but only so far as it operates to inform how an executive or judicial branch actor should interpret the intent 20 In Congressional testimony in 1986, the Legal Adviser to the State Department, Abraham Sofaer, found that " senous constitutional problems exist with respect to Section 8(a)," because " one Congress by statute can[not] so limit the constitutional options o f future Congresses." See Abraham D. Sofaer, The War Powers Resolution and Antiterronst Operations, 86 Dept St. Bull 68, 69 (Aug 1986). In 1988, however, Judge Sofaer cast the problem prim anly as a matter o f construction, not of constitutionality, although it would appear that Judge Sofaer's construc- tion o f the statute was intended to avoid constitutional concerns See The War Power After 200 Years Congress and the President at a Constitutional Impasse H earings Before the Special Subcomm. On War Powers o f the Senate Comm. On Foreign Relations, 100th Cong 148 (1988) (testimony o f Legal Adviser Sofaer) ( " Section 8. The problem there is not so much constitutional Section 8 was an effort to get people to focus on the W ar Powers Resolu- tion, but not an effective effort in limiting the types o f approvals that can be obtained." ), id. at 1066 (" In our view, Section 8(a) ineffectively attempts to restnct the rights o f future Congresses to authorize deployments in any way they choose " ). As President Nixon correctly said in his Veto M essage following initial passage of the WPR, Congress can affect the Executive's conduct of m ilitary operations through a vanety of means, and " Itjhe authonzation and appropnations process represents one o f the ways in which such influence can be exercised." Pub Papers of Richard Nixon 893, 895 (1973). 342 Authorization fo r Continuing Hostilities in Kosovo of subsequent Congresses that enact appropriation statutes that, do not specifically reference the WPR.21 On the question whether an appropriation statute enacted by a subsequent Congress constitutes authorization for continued hostilities, it is the intent of the subsequent Congress, as evidenced by the text and legislative history of the appropriation statute, that controls the analysis. The existence of section 8(a)(1) might affect this analysis. If the appropriation statute is entirely ambiguous as to whether it constitutes authorization for continuing hostilities, for example, it might be proper for a judicial or executive branch actor to conclude that, because the subsequent Congress was aware of the background principle established by section 8(a)(1), its failure to refer specifically back to the WPR evidences an intent not to authorize continuing hostilities. If, however, Congress, in enacting an appropriation statute, demonstrates a clear intent to authorize con- tinuing hostilities, then it would be appropriate to conclude that the appropriation statute does authorize those hostilities, even though the statute does not specifi- cally refer back to the WPR. Under these circumstances, the appropriation statute would supersede or work an implied partial repeal of section 8(a)(1).22 In other words, section 8(a)(1) establishes procedural requirements that, under the statute, Congress must follow to authorize hostilities; nonetheless, a subsequent Congress remains free to choose in a particular instance to enact legislation that clearly authorizes hostilities and, in so doing, it can decide not to follow the W PR's procedures. This position is consistent with the approach taken by our Office at about the time of the WPR's enactment. In a 1973 opinion, we stated: Strictly speaking, such a provision [? 8(a)(1)] is probably not binding on future Congresses. For example, should the legislative history of a future appropriations statute make it clear that particular hostilities are authorized, that should constitute a valid authoriza- tion, because future Congresses are free to adopt any of the cus- tomary modes of manifesting their intention. However, as a prac- tical matter, a court would probably attach some significance to this subsection should a claimed statutory authorization for hos- tilities be doubtful. 21 C f Cass R Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv L. Rev 405, 452 (1989) (noting that canons of construction have " actually influenced judicial behavior insofar as they reflected background norms lhat helped to give meaning to statutory words or to resolve hard cases" ) 22 Although the law disfavors implied repeals, particularly with respect to appropriation statutes, see Tennessee Authority v. Hill, 437 U.S. 153, 190 (1978), the presumption against implied repeals can be overcome if the statutory language o r legislative history evidences an intent ro repeal the prior statute. See WiU, 449 U.S at 222 ( " [WJhen Congress desires to suspend or repeal a statute in force, there can be no doubt that . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise . . The whole question depends on the intention of Congress as expressed in the statutes." (citations and internal quotation marks omitted)) As described below, this standard is satisfied here. 343 Opinions o f the Office o f Legal Counsel in Volume 24 Memorandum for the Hon. William E. Timmons, Assistant to the President for Legislative Affairs, from Robert G. Dixon, Assistant Attorney General, Office of Legal Counsel, Re: The " War Powers Resolution" at 15 (Nov. 16, 1973). This reading of section 8(a)(1) finds support in a series of cases interpreting statutes similar in form to section 8(a)(1). For example, in the case of Great N. Ry. Co. v. United States, 208 U.S. 452 (1908), the Court addressed whether one criminal law repealed a prior criminal law so as to deprive the government of the right to prosecute for violations o f the prior law committed before the subse- quent law was enacted. The Court considered this question in light of section 13 of the Revised Statutes,23 which provided that " [t]he repeal of any statute shall not have the effect to release or extinguish any penalty . . . incurred under such statute, unless the repealing act shall so expressly provide." Id. at 465. In addressing the effect of section 13 on the interpretation of the subsequent criminal law, the Court wrote: " As the section of the Revised Statutes in question has only the force of a statute, its provisions cannot justify a disregard of the will of Congress as manifested, either expressly or by necessary implication, in a sub- sequent enactment." Id. The Court observed that section 13 " must be enforced unless, either by express declaration or necessary implication, arising from the terms of the law as a whole, it results that the legislative mind will be set at naught by giving effect" to that section. Id. See also Hertz v. Woodman, 218 U.S. 205, 218 (1910) (" The repealing act here involved includes a saving clause, and if it necessarily, or by clear implication, conflicts with the general rule declared in ? 13, the latest expression of the legislative will must prevail." ); War- den v. M arrero, 417 U.S. 653, 659 n.10 (1974) (" [0]nly if [the subsequently enacted statute] can be said by fair implication or expressly to conflict with [the previously enacted saving clause] would there be reason to hold that [the subse- quently enacted statute] superseded [the saving clause]." ); Passamaquoddy Tribe v. M aine, 75 F.3d 784, 787, 789 (1st Cir. 1996) (characterizing a law that provided that " [t]he provisions of any federal law . . . for the benefit of Indians . . . shall not apply within the State of Maine, unless such provision of such subsequently enacted Federal law is specifically made applicable within the State of Maine" as " an interpretive aid [that] serves both to limn the manner in which subsequendy enacted statutes should be written to accomplish a particular goal and to color the way in which such statutes thereafter should be read," and noting that " [the law] binds subsequent Congresses only to the extent that they choose to be bound" ). The Supreme Court's observation that a statute should not be given effect if, " by express declaration o r necessary implication, arising from the terms of the law as a whole, it results that the legislative mind will be set at naught," G reat N. Ry. Co., 208 U.S. at 465, is consistent with the view expressed in our 1973 opinion that a statute evidencing a " clear" intent to authorize hostilities will operate to authorize those hostilities even though it does not refer back to 23 Rev. Stat ? 13, U.S. Comp. Stat 1901, p 6. 344 Authorization fo r Continuing Hostilities in Kosovo the WPR. To interpret section 8(a)(1) to bar such a statute from authorizing hos- tilities would set the " legislative mind" that enacted the appropriation statute " at naught." 24 Academic commentators have understood section 8(a)(1) in a similar fashion. Professors Banks and Raven-Hansen, for example, have argued that although sec- tion 8(a)(1) counsels against inferring authorization from an ambiguous appropria- tion law, an appropriation statute that clearly authorizes hostilities nonetheless con- stitutes authorization for those hostilities despite section 8(a)(1): We conclude . . . that the resolution's clear statement requirement does not control the construction of subsequent appropriations or other legislation. Instead, absent ambiguities, it is their own plain words and their enactors' legislative intent that controls their construction. As a result, a legitimating appropriation may authorize or ratify a deployment of U.S. armed forces into hostilities even if it omits the resolution's magic passwords and thus violates its clear statement provision. . . . This is not to make a dead letter out of the whole of the War Power Resolution's rule of construc- tion. Its self-referential insistence on " passwords" is without effect. We never have occasion to need the rest of it, if we can ascertain the meaning and intent of a legitimating appropriation from its plain words or clear legislative history. If we cannot, then the resolution's clear statement requirement sounds a useful advisory caution against inferring authority from ambiguous appropriations meas- ures, and thus operates like any canon of statutory construction, by supplying helpful, but not controlling guidance in statutory construction. Banks & Raven-Hansen, supra, at 129, 131. Similarly, Professor Ely writes that section 8(a)(1) " gave us [] a strong rule of construction, telling us how to read the intent of later congresses," although he further notes that unless the Resolution is repealed, a subsequent congress can only authorize hostilities through an appro- priation statute under " extreme circumstances." Ely, supra, at 129.25 24 The Great Northern Court looked solely to the subsequent statute's text to determine whether it conflicted with the prior statute See 208 U S at 466-70. As we explain below, under a pure textual analysis. Pub L No. 106-31 evidences a clear intent to authorize hostilities despite section 8(a)(1) In at least one recent case, however, a court looked both to text and legislative history to determine whether a subsequent statute repealed a pn o r statute See Passamaquoddy, 75 F.3d at 790-91 (analyzing Senate Report), see also Will, 499 U S at 222 In our view, this approach is more consistent with the current practice o f statutory interpretation See, e g , Murphy Bros, Inc v. Michetti Pipe Stringing, In c , 526 U S 344, 351-55 (1999) (analyzing text and legislative history in resolving statutory interpretation question) We explain below why the legislative history also supports our interpretation of Congress's intent in enacting Pub. L. No. 106-31 25 Although we agree generally with the approach of Banks and Raven-Hansen, we are reluctant to characterize section 8(a)(1) as a " rule o f construction " Such a charactenzauon might be read to suggest that the Congress that enacted section 8(a)(1) intended it simply as one measure of how to interpret the intent of subsequent Congresses, Continued 345 Opinions o f the Office o f Legal Counsel in Volume 24 The determination of whether any particular appropriation statute that does not refer back to the WPR constitutes authorization for continuing hostilities will nec- essarily depend on the facts of each case. Certain types of evidence will be highly probative of an intent to authorize ongoing military operations. For example, evi- dence demonstrating that Congress was concerned with funding a specific military effort, as opposed to making general defense appropriations, would tend to show such an intention. Likewise, in a case where the President has requested an appro- priation in order to continue military operations, evidence showing that Members of Congress were specifically aware o f the purposes of the appropriation request will tend to show that Congress intended to authorize continuing military oper- ations as required by the WPR. Finally, if Congress appropriates funds only for protection o f troops already committed or prohibits the use of appropriated funds for the introduction of new troops, a presumption might arise that Congress did not intend to authorize continuing hostilities but instead intended simply to protect troops already on the ground. On the other hand, unlimited appropriations would tend to suggest an intent to authorize continuing hostilities. In short, where Con- gress, in passing an appropriations bill, clearly intends to authorize conflict, the WPR cannot be read to deny legal effect to that clear intent. IV. Pub. L. No. 106--31 and Congressional Authorization o f the War in Kosovo This section shows that, in passing Pub. L. No. 106-31, Congress clearly intended to authorize continuing military operations in Kosovo. The section begins by providing an overview of the events in Congress leading to the passage of Pub. L. No. 106-31 and of the statute's text. It concludes that, in the absence of the WPR, Pub. L. No. 106-31 would have constituted congressional authoriza- tion of military operations in Kosovo. The following three parts look closely at the statute's text and legislative history to determine whether Pub. L. No. 10631 constituted " specific authorization" under section 5(b)(2) of the WPR. It con- cludes that the statute constituted such " specific authorization." 1. O verview The " clock" established in section 5(b) of the WPR began running in the present case on March 26, 1999, when the President, citing national security cona view which seems in tension with the language and purpose o f the WPR. We nonetheless agree that, in effect, section 8(a)(1) operates like a rule o f construction. Likewise, although we agree with Professor Ely that section 8(a)(1) " tell[s] us how to read the intent of later congresses," we are reluctant to agree with his characterization of the section as " a strong rule o f construction " Ely, supra, at 129. W e also do not agree with Ely that a subsequent Congress can authonze hostilities through appropriations only in " extreme circumstances." Id In other words, section 8(a)(1) establishes procedural requirements that a subsequent Congress must follow to authonze hostilities, unless that subsequent Congress decides not to follow those procedures and instead chooses to enact legislation that " expressly o r by necessary im plication," Great N Ry., 208 U S at 465, authorizes hostilities (A subsequent Con- gress could, o f course, also choose to repeal section 8(a)(1) o f the W PR o u tn g h t) 346 Authorization fo r Continuing Hostilities in Kosovo cems, informed Congress that U.S. military forces had begun a series of air strikes in the Federal Republic of Yugoslavia. See Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugo- slavia (Serbia and Montenegro), 1 Pub Papers of William J. Clinton 459 (1999). As the President explained to the Speaker of the House: At approximately 1:30 p.m. eastern standard time, on March 24, 1999, U.S. military forces, at my direction and in coalition with our NATO allies, began a series of air strikes in the Federal Republic of Yugoslavia (FRY) in response to the FRY govern- ment's continued campaign of violence and repression against the ethnic Albanian population in Kosovo. The mission of the air strikes is to demonstrate the seriousness of NATO's purpose so that the Serbian leaders understand the imperative of reversing course; to deter an even bloodier offensive against innocent civilians in Kosovo; and, if necessary, to seriously damage the Serbian mili- tary's capacity to harm the people of Kosovo. In short, if President Milosevic will not make peace, we will limit his ability to make war. Id. The President concluded the letter by informing the Speaker, as is customary, that he was " providing th[e] report as part of [his] efforts to keep the Congress fully informed, consistent with the War Powers Resolution." Id. at 460. Approximately three weeks after sending this letter, the President, through the White House budget officc, formally submitted a request to Congress for $6 billion to fund continuing efforts in Kosovo. See Guy Gugliotta & Helen Dewar, $6 Bil- lion Requested fo r Kosovo Emergency , The Washington Post, April 20, 1999, at A15. Of this amount, close to $5 billion was to be used for continued air oper- ations and war material through September 30, 1999, and the rest was intended to assist the hundreds of thousands of ethnic Albanian refugees who were fleeing from Kosovo. Id. The congressional leadership promptly made clear their intention to use the request as a vehicle to augment defense spending more generally and called for defense funding far in excess of the requested $6 billion. Id. (indicating House Majority Leader Richard K. Armey's belief that " [e]ven $10 billion would be insufficient" ). Debate over the continuing military operations in Kosovo intensified on April 28, 1999, when the House considered and voted on four different Kosovo-related measures.26 First, the House defeated two measures introduced by Representative 26Pnor lo these measures, the Senate, on March 23, President o f the United States is authonzed to conduct with our NATO allies against the Federal Republic o f 1999) (repnnting S. Con Res 21, 106th Cong (1999)) 1999, passed a concurrent resolution providing that " the military air operations and missile stnkes in cooperation Y ugoslavia" 145 Cong Rec. S3118 (daily ed. Mar. 23, The following day, the House passed, by a vote of 42 4 Continued 347 Opinions o f the Office o f Legal Counsel in Volume 24 Tom Campbell: H. Con. Res. 82, 106th Cong. (1999), a concurrent resolution directing the President to remove the Armed Forces from Serbia within 30 days, and H.J. Res. 44, 106th Cong. (1999), declaring a state of war between the United States and Serbia. See 145 Cong. Rec. H2414 (daily ed. Apr. 28, 1999) (reprinting H. Con. Res. 82); id. at H2426-27 (recording vote); id. at H2427 (reprinting H.J. Res. 44); id. at H2440-41 (recording vote). The House also voted 249-180 to support H.R. 1569, 106th Cong. (1999), blocking funding for ground troops with- out additional specific authorization from Congress, see 145 Cong. Rec. H2400 (reprinting measure); id. at H2413-14 (recording votes), and tied, 213-213, on S. Con. Res. 21, 106th Cong. (1999), a concurrent resolution stating that the Presi- dent " is authorized to conduct military air operations and missile strikes" against Serbia. See id. at H2441 (reprinting resolution); id. at H2451-52 (recording vote). As highlighted by the debates concerning these measures, there can be no doubt that members of Congress were fully cognizant of the WPR and the 60-day time clock.27 Despite these votes, the appropriation effort moved forward. Following testi- mony by Secretary of Defense Cohen before the Subcommittee on Defense on April 21, and after a public markup on April 29, the House Appropriations Com- mittee reported H.R. 1664, 106th Cong. (1999), entitled " [a] bill making emer- gency supplemental appropriations for military operations, refugee relief, and humanitarian assistance relating to the conflict in Kosovo, and for military oper- ations in Southwest Asia for the fiscal year ending September 30, 1999, and for other purposes," to the full House on May 4. 145 Cong. Rec. H2634 (daily ed. May 4, 1999). The $12.9 billion bill provided the funds requested by the President for military operations in Kosovo, as well as over $6 billion in other military funding, for such things as spare parts, depot maintenance, recruiting, and readi- ness training. See H.R. 1664, ch. 3; see also Andrew Taylor, Paying fo r the Kosovo A ir War: H ow Much is Too Much?, CQ Weekly, at 1014 (May 1, 1999). Following a floor debate on May 6, the House passed H.R. 1664 the same day by a vote of 311-105. 145 Cong. Rec. H2895 (daily ed. May 6, 1999). I, a resolution noting the President's authorization o f U S. participation in NATO military operations and resolving " [t]hat the House o f Representatives supports th e members o f the United States Armed Forces who are engaged in military operations against the Federal Republic o f Yugoslavia " Id at H1660, H1668-69 (daily ed. Mar 24, 1999) (reprinting H.R Res. 130, 106th Cong. (1999)) 27 For exam ple, Congressman Spratt pointed o u t that " [wjithin 60 days of a deployment, when we are notified by the President, we can enact a specific authorization o f such use o f the Armed Forces. That was laid out for us when we passed the W ar Powers Resolution " Id. at H2387. Other speakers made similar points See id at H 2386 (remarks o f Cong Cham bliss) (" I do not think that now is the time to have a constitutional showdown on the W ar Powers Act " ), id at H2389 (remarks o f Cong. Stark) (H. Con. Res. 82 " is of the highest priority because we m ust exercise our obligation under the War Powers Act to debate the use of military force" ), id at H2423 (rem arks o f Cong. Leach) ( " The vote [w e take] on this resolution and the others we will take today are necessitated by . the W ar Powers Resoluuon " ). Still more pointedly, Congressman Kucinich reminded the House that " Section 5 o f the W ar Powers Resolution states that the President must terminate the use o f force after 60 days unless Congress, first, declares war, second, enacts explicit authorization of the use of force; or third, extends the 60-day period " Id. at H2446. 348 Authorization fo r Continuing Hostilities in Kosovo The next week, the House and Senate held a joint conference on H.R. 1664 and H.R. 1141, 106th Cong. (1999), another emergency supplemental funding bill that up to that point had focused on providing relief to Central American nations devastated by hurricanes. During the three day conference, the conferees stripped H.R. 1664 of the appropriations relating to Kosovo and other military funding and added those appropriations to H.R. 1141. See H.R. Conf. Rep. No. 106-143, at 61 (1999) ( " The conferees have agreed to include in this conference report on H.R. 1141 matters addressed in the House version of H.R. 1664 as an expedient approach to getting appropriations enacted into law for the important requirements related to the conflict in Kosovo and Southwest Asia (Operation Desert Fox)." ). As the conference report explained, " the conference agreement recommend[ed] a total of $10,196,495,000 in new budget authority for the Department of Defense, for costs resulting from ongoing contingency operations in Southwest Asia and Kosovo, as well as other urgent high priority military readiness matters." Id. at 75. Specifically, the conferees agreed to provide $5,007,300,000 " for the 'Over- seas Contingency Operations Transfer Fund' for costs relating to Operation Allied Force and related NATO activities concerning Kosovo, and operations in South- west Asia. Of this amount, $3,907,300,000 is provided for personnel and oper- ations costs stemming from these operations. An additional $1,100,000,000 is pro- vided on a contingent emergency basis to meet expected munitions and readinessrelated Kosovo expenses, and will be made available only to the extent funds are requested in a subsequent budget request by the President." Id. at 76. The conferees further agreed to appropriate $984,300,000 for munitions procurement " associated with operations in Kosovo and Southwest Asia," id., and $16,469,000 " for additional military personnel pay and allowances in support of contingency operations in Southwest Asia," id. They also agreed to appropriate $475,000,000 " to be used for construction of mission, readiness and force protection items in relation to the conflict in the Balkans, and other contingencies throughout the region." Id. at 81. Finally, the conferees appropriated over $1 billion for Kosovo humanitarian assistance, including $149,200,000 for " humanitarian food aid in the Balkans and other regions of need," id. at 74, $105,000,000 " for assistance for Albania, Macedonia, Bulgaria, Bosnia-Herzegovina, Montenegro, and Romania, and for investigations and related activities in Kosovo and in adjacent entities and countries regarding war crimes," id. at 79, and $100,000,000 " for costs related to assisting in the temporary resettlement of displaced Kosovar Alba- nians," id. at 81. The House debated H.R. 1141 on May 18 and passed the bill by a 269-158 vote on the same day. See 145 Cong. Rec. H3269 (daily ed. May 18, 1999). The Senate debated the bill on May 20 and passed it by a 64--36 vote on the same day. See 145 Cong. Rec. S5682 (daily ed. May 20, 1999). The bill signed by the President, entitled " [a]n Act [mjaking emergency supple- mental appropriations for the fiscal year ending September 30, 1999, and for other 349 Opinions o f the Office o f Legal Counsel in Volume 24 purposes," appropriated well over $5 billion to fund efforts in Kosovo. The prin- cipal provision concerning funding, found in Chapter 3 of Title II of the bill (the Title entitled " Emergency National Security Supplemental Appropriations" ), reads as follows: OPERATION AND MAINTENANCE Overseas Contingency Operations Transfer Fund (Including Transfer of Funds) For an additional amount for " Overseas Contingency Operations Transfer Fund" , $5,007,300,000, to remain available until expended: Provided, That the entire amount made available under this heading is designated by the Congress as an emergency require- ment pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended: Provided fu r- ther, That of such amount, $1,100,000,000 shall be available only to the extent that the President transmits to the Congress an official budget request for a specific dollar amou nt . . . . 113 Stat. at 76-77. Another section o f Chapter 3 appropriates $300,000,000 to remain available for obligation until September 30, 2000 . . . only for the accelerated acquisition and deployment of military technologies and systems needed f o r the conduct o f Operation A llied Force, or to provide accelerated acquisition and deployment of military technologies and systems as substitute or replacement systems for other United States regional commands which have had assets diverted as a result of Operation Allied Force. Id. at 78 (emphasis added). The other relevant appropriations discussed in the Conference Report are found in various Chapters of Title II of the bill. See, e.g., Chapter 1 (food assistance); Chapter 3 (personnel, procurement); Chapter 4 (humanitarian assistance); Chapter 5 (resettlement); Chapter 6 (construction).28 Finally, section 2006 of the bill provides as follows: Sec. 2006. (a) Not more than 30 days after the date of the enact- ment of this Act, the President shall transmit to Congress a report, 28 For exam ple, Chapter Four o f the bill provides " [f]or an additional amount for 'Economic Support Fund,' $105,000,000, to remain available until September 30, 2000, for assistance for Albania, Macedonia, BosniaH erzegovina, Bulgaria, Montengro, and Romania, and for investigations and related activities in Kosovo and in adjacent entities and countries regarding war c rim e s " 113 Stat. at 84. Chapter Five provides " [f]or an additional amount for 'Refugee and Entrant Assistance,' such sums as necessary to assist in the temporary resettlement of displaced Kosovar Albanians, not to exceed $100,000,000, which shall remain available through September 30, 2001 " Id at 85. 350 Authorization fo r Continuing Hostilities in Kosovo in both classified and unclassified form, on current United States participation in Operation Allied Force. The report should include information on the following matters: (1) a statement of the national security objectives involved in United States participation in Operation Allied Force; (2) an accounting of all current active duty personnel assigned to support Operation Allied Force and related humanitarian operations around Kosovo to include total number, service component and area of deployment (such accounting should also include total numbers of personnel from other NATO countries participating in the action); (3) additional planned deployment of active duty units in the European Command area of operations to support Oper- ation Allied Force, between the date of the enactment of this Act and the end of fiscal year 1999; (4) additional planned Reserve component mobilization, including specific units to be called up between the date of the enactment of this Act and the end of fiscal year 1999, to support Operation Allied Force; (5) an accounting by the Joint Chiefs of Staff on the transfer of personnel and material from other regional commands to the United States European Command to support Operation Allied Force and related humanitarian operations around Kosovo, and an assessment by the Joint Chiefs of Staff of the impact any such loss of assets has had on the warfighting capabilities and deterrence value of these other commands; (6) levels of humanitarian aid provided to the displaced Kosovar community from the United States, NATO member nations, and other nations (figures should be provided by country and the type of assistance provided whether finan- cial or in-kind); and (7) any significant revisions to the total cost estimate for the deployment of United States forces involved in Oper- ation Allied Force through the end of fiscal year 1999. 351 Opinions o f the Office o f Legal Counsel in Volume 24 (b) OPERATION ALLIED FORCE. -- In this section, the term " Operation Allied Force" means operations of the North Atlantic Treaty Organization (NATO) conducted against the Federal Republic of Yugoslavia (Serbia and Montengro) during the period beginning on March 24, 1999, and ending on such date as NATO may designate, to resolve the conflict with respect to Kosovo. 113 Stat. at 80. Pub. L. No. 106-31 specifically appropriated over $5 billion to fund continuing hostilities in Kosovo, but it did not make specific reference to the WPR.29 The W PR's 60 day clock ran on May 25, four days after the President signed Pub. L. No. 106-31.30 As will be shown in greater detail in the following subparts, the congressional debates and the text of Pub. L. No. 106-31 make clear that Congress was unquestionably aware that it was funding the hostilities in Kosovo. Moreover, the appropriations bill was specifically targeted in substantial degree to the President's request for funds to continue the military action in Kosovo. Congress, in other words, used its constitutional authority to appropriate funds to allow the President to continue hostilities in the Federal Republic of Yugoslavia. In light of the nature of the bill and the historical precedent, discussed above, for Congress to authorize hostilities through appropriations measures, Pub. L. No. 106-31 would, in the absence of the WPR, have constituted constitutionally adequate authorization for continued bombing in the region. 2. Text On its face, H.R. 1664 provided authorization, in the form of an appropriations measure, for continuing military operations -- or, more specifically, for continuing United States participation in the NATO air campaign -- in Kosovo. The bill itself was entitled " [a]n Act Making emergency supplemental appropriations fo r mili- tary operations, refugee relief, and humanitarian assistance relating to the conflict in K osovo " (emphasis added). In bearing that title, H.R. 1664 plainly indicated the main purpose for which the appropriated funds would be spent. Although H.R. 29 In this respect, Pub. L No. 106-31 differs from sections 2 and 6 o f the Multinational Force in Lebanon Resolu- tion, 97 Stat. at 805, and from section 2(c)(1) o f the Authorization for Use of Military Force Against Iraq Resolution, 105 Stat. at 4, both o f which referred back to section 5(b) of the W PR See supra note 7 30 A lthough neither the distnct court nor the Court o f Appeals addressed the merits of the suit brought against the President by 31 Members o f Congress, see supra p. 328, D istnct Court Judge Friedman did observe in dicta that Pub. L No. 106-31 did not constitute an " authorization" within the meaning of the W PR See Campbell, 52 F Supp.2d at 44 n 9 ( " W hile neither the d efeat of the House concurrent resolution nor the passage of the Appro- priations Act constitutes an 'authorization' within the meaning o f the W ar Powers Resolution, see 50 U S.C. ? 1547, congressional action on those measures is relevant to the legislative standing analysis." ) For reasons described in this opinion, w e conclude that the appropriation did constitute authorization to continue Operation Allied Force, regardless o f whether Congress complied with the legislative requirements specified by an earlier Congress in the W PR 352 Authorization fo r Continuing Hostilities in Kosovo 1141 did not bear a title explicitly referencing the conflict in Kosovo, its title (indicating that it was a " emergency supplemental appropriation]" ) as well as its direct connection to H.R. 1664, made it clear that it too was substantially, if not primarily, concerned with funding the ongoing military effort in Kosovo. Furthermore, particular provisions of the appropriation statute underscore that Congress, in enacting the appropriation, authorized the President to continue mili- tary operations in Kosovo for an indeterminate period, but at least to the end of Fiscal Year 1999.31 For example, section 2006(b) defines the phrase " Oper- ation Allied Force" as the " operations of the North Atlantic Treaty Organization (NATO) conducted against the Federal Republic of Yugoslavia (Serbia and Mon- tenegro) during the period beginning on March 24, 1999, and ending on such date as NATO may designate, to resolve the conflict with respect to Kosovo." 113 Stat. at 80. Moreover, section 2006(a) requires that the President, "[n]ot more than 30 days after the enactment o f this Act, . . . transmit to Congress a report . . . on current United States participation in Operation Allied Force." Id. (emphasis added). The report is to include a statement of national security objec- tives involved in Operation Allied Force, ? 2006(a)(1), as well as information regarding additional planned deployment of certain active duty units to support Allied Force between the date of enactment and the end of fiscal year 1999, ? 2006(a)(3), additional planned reserve component mobilization, including spe- cific units to be called up between the date of enactment and the end of fiscal year 1999 to support Allied Force, ? 2006(a)(4), and any significant revisions to the total cost estimate for the deployment of U.S. forces involved in Allied Force through the end of fiscal year 1999, ? 2006(a)(7).32 These reporting requirements make sense only on the assumption that the Presi- dent was authorized to continue United States participation in Operation Allied Force for at least thirty days after the enactment of Pub. L. No. 106-31, a period that necessarily extended beyond May 25, when the 60 day " clock" had expired. Indeed, the reporting requirements assume that the President could deploy addi- tional active duty units in support of Operation Allied Force, and could mobilize reserves to that end, at various times between the enactment of the bill and the end o f Fiscal Year 1 9 9 9 -- a period that again extended well beyond the 60 day " clock." Finally, section 2006(a)(7) signaled that Congress wished to keep informed of the estimated costs of deploying United States forces in Operation Allied Force through the end of the fiscal year. Taken together, these provisions show that Members of Congress foresaw the possibility that the President would 31 We note that Chapter 3 o f Title II, which substantially met the Administration's request for supplemental funding for the Kosovo operation, appropnates $5,007,300,000 " to remain available until expended." 113 Stat at 76 Thus, these funds were to remain legally available for expenditure even after the end o f Fiscal Year 1999. Id Insofar as Congress authorized the continuation of hostilities by providing these funds, it therefore did not sunset that authorization on September 30, 1999 32 Id. We have been informed that the President submitted this report to Congress on August 19, 1999 353 Opinions o f the Office o f Legal Counsel in Volume 24 continue the deployment after May 25, and that they were prepared to fund contin- ued military hostilities through at least the end of Fiscal Year 1999.33 More generally, Pub. L. No. 106-31 m et the President's request for emergency supplemental funding for the very explicit purpose of continuing military oper- ations in Serbia and Kosovo. The obvious and stated purpose of the Administration in seeking this supplemental funding was to meet anticipated expenses of the cam- paign, including any expenses that would be incurred for operations after May 25. In furnishing such funds, Congress clearly endorsed and authorized the Administration's plans. Indeed, specific line items in the bill demonstrate Congress's belief that Operation Allied Force could continue after May 25. For example, Chapter 3, dealing in part with procurement, appropriated $300 million " to remain available for obligation until September 30, 2000 . . . only for the accelerated acquisition and deployment of military technologies and systems needed f o r the conduct o f Operation Allied Force, or to provide accelerated acquisition and deployment of military technologies and systems as [a] substitute or replacement systems for other United States regional commands which have had assets diverted as a result of Operation Allied Force." 113 Stat. 78 (emphasis added). Again, the funding of " accelerated acquisition and deployment" of mili- tary technologies " needed for the conduct of Operation Allied Force" unquestion- ably assumed that that need might exist, and could lawfully be met, after May 25. Id. Furthermore, both H.R. 1141 and H.R. 1664 were plainly identified as emer- gency, supplem ental appropriations. Thus, Congress was well aware that the bill was an extraordinary measure, wholly outside the routine budget process for the regular funding of Department of Defense activities. This was free-standing and widely publicized legislation, introduced soon after several major Congressional debates on the Administration's policy, for the explicit purpose of funding con- tinuing military operations in Kosovo. Congress decided to fund that operation. 3. Legislative History The legislative history of Pub. L. No. 106-31 strongly confirms this under- standing of the bill's intent and effect. This part analyzes that history in four stages: (a) Secretary of Defense William S. Cohen's explanation of the Adminis- tration's request for emergency supplemental funding made on April 21, 1999, to the Defense Subcommittee of the House Appropriations Committee; (b) the House Appropriations Committee's consideration of H.R. 1664; (c) the first House 33 Indeed, the House Appropriations Committee Report states that " [t]he Committee recognizes that the specific budget estimates underlying the supplemental requests for Kosovo operations may require adjustments due to the evolvtng nature o f the air campaign, changes in deployment schedules and operational tempo, and other requirements associated with current operations and currently planned forces which were not identified at the time the supplemental request was developed." H.R. Rep. No 106-125, at 4 (1999) 354 Authorization fo r Continuing Hostilities in Kosovo floor debate on H.R. 1664 on May 6, 1999; and (d) the final House and Senate votes on H.R. 1141 on May 18 and 20, 1999, respectively. a. Secretary Cohen's Testimony The Administration's statement to Congress of the purposes of seeking the supplemental appropriation weigh heavily in favor of construing Pub. L. No. 10631 as an authorization to continue Operation Allied Force beyond the May 25 cutoff.34 Of particular importance is Secretary of Defense William S. Cohen's testimony at an April 21, 1999 hearing by the Subcommittee on Defense of the House Committee on Appropriations, in support of the Administration's request for the supplemental appropriation. See Department o f Defense Appropriations fo r 2000: Hearings Before the Defense Subcomm. o f the House Comm, on Appropria- tions, 106th Cong. 288 (1999) (Statement of William S. Cohen, Secretary of Defense). Secretary Cohen made plain the Administration's intent to use the pro- posed funding to go forward with Operation Allied Force, if necessary for a pro- longed period. He stated: This is an emergency, non-offset supplemental totaling $6.05 bil- lion: $5,458 billion for DoD and $591 million for the State Depart- ment and international assistance programs. The DoD portion of the supplemental has these major components: Kosovo Military Operations ($3.3 billion). The request funds pro- jected force levels and the current high operating tempo through the end of the fiscal year. All U.S. forces that have been deployed or ordered to deploy are assumed to remain in theater and operate at current sortie and strike levels. The request does not fund pos- sible deployment of U.S. ground forces to Kosovo or peacekeeping operations or reconstruction there. NATO is engaged in a serious military effort in Kosovo. It will not be quick, easy, or neat. We have to be prepared for the possi- bility of casualties among NATO forces. But we cannot falter, and we will not fail. Id. 291-92. 34 We note also lhat the President advised Congress that " [i]t is not possible to predict how long either of these operations [air strikes and relief efforts] will continue. The duration o f the deployments depend[s] upon the course o f events in Kosovo . . . Letter for Congressional Leaders Reporting on Airstnkes Against Serbian Targets in the Federal Republic o f Yugoslavia (Serbia and Montenegro), 1 Pub Papers of William J Clinton 579, 520 (1999) 355 Opinions o f the Office o f Legal Counsel in Volume 24 Secretary Cohen's statements plainly advised Congress of the Administration's determination to pursue military operations, if necessary, for an indefinite period beyond May 25, and he specifically requested Congress to fund such operations at least " through the end of the fiscal year." 35 b. House Appropriations Committee Action Shortly before the House Appropriations Committee considered H.R. 1664 on April 29, Representative William Young, the Chairman of the Committee, stated that " [t]his $12.9 billion bill recognizes that we are more deeply involved in Kosovo than we were led to believe and that unless [President] Milosevic has a major change of heart, our involvement will be deeper than originally antici- pated." Chairman Young Announces Kosovo Emergency Supplemental Bill, www.house.gov/appropriations/news/106-l/pr00kosovo.html (Apr. 27, 1999). During the mark-up itself, Congressman Young said, " I'm not sure what message [Milosevic] got from that [the House's April 28 votes on authorizing military action], but I can guarantee you when we pass this bill today, there will be no doubt in the mind of Mr. Milosevic where we stand; that this Congress stands behind our troops no matter where they are or what they're doing. And we're going to provide them with what they need to accomplish their mission . . . ." Verbatim Transcript, House of Representatives, Appropriations Committee Markup, 1999 WL 252365 (F.D.C.H.) at 22-23 (Apr. 29, 1999) (" Transcript" ). See also Tom Raum, Committee A pproves Kosovo Funds, 1999 WL 17061956 (Apr. 29, 1999); Bill Ghent, Report on Markup o f Draft (Unnumbered): House Appropriations Panel Approves $ 13 Billion Kosovo Emergency Bill, LEGI- SLATE Report for the 106th Congress, at 2 (Apr. 29, 1999).36 Also during the mark-up, Congressman Obey clearly explained the Administra- tion's purpose in seeking the emergency appropriation, and the length of the oper- ations it was intended to fund. He said: Now let me explain what it is we're doing. In the administration's request for DOD, they asked for $5.5 billion for military operations. To reimburse them for previous costs in Iraq they asked for $272 million, and in Kosovo they asked for 35 Id at 291 Further, according to press reports, during the hearing Secretary Cohen " several times described the $6 billion as sufficient to fund through September the operations of an intensified air campaign, to replenish already expended munitions and anticipated munitions needs and to call up and deploy nearly 26,000 reservists " Guy G ughotta & Bradley Graham, GOP Sees Opportunity fo r M ore Military M oney, The Washington Post, Apr. 22, 1999, at A 18. 36 Other Members o f Congress made similar statements before the House floor debate on the bill For example, according to press reports. Congressman David Dreier, the Chairman o f the House Rules Committee (which framed the rules for the debate over H R 1664), expressed the view that " President Clinton is acting within his authonty and 'Congress cannot hamstring his abilily' to win the war." John Godfrey, Heated Debate Likely on Funding T he W ashington Times, May 6, 1999, at A12 356 Authorization fo r Continuing Hostilities in Kosovo $3.3 billion. That was meant to finance the salaries, maintenance, operation, the whole shebang, for 500 U.S. aircraft that General Clark initially asked for, for the 82 additional aircraft that he got a month ago, and the 300 more that he's requested which have not yet arrived. It is meant to finance total saturation bombing of all air space in Yugoslavia 24 hours a day fo r the remainder o f the fiscal year. It is a huge operation. Transcript at 42 (emphasis added). c. The House May 6 Floor Debate The floor debate on H.R. 1664 on May 6 also demonstrates that the House clearly understood that it was funding military operations that could well continue for months after May 25. At the start of that debate, Congressman Obey stated squarely that [t]he administration has asked about $6 billion to cover the cost of this war, plus they have asked for humanitarian assistance. The amount that they have requested will pay for an 800-plane war, 24 hours a day bombing of virtually every target in Yugoslavia that one could imagine anywhere. That will be sustained on a daily basis through the end o f the fiscal year. 145 Cong. Rec. H2827 (daily ed. May 6, 1999) (remarks of Cong. Obey) (emphasis added); see also id. at H2856 (remarks of Cong. Obey). Congressman Young, also speaking at the start of the debate, discounted the April 28 House votes on the Kosovo operation as " votes that gave Members an opportunity to voice their opinion in resolutions that were not truly binding," and argued that the vote on H.R. 1664 " is the real message. This is a message to Milosevic that we are serious. This is a message to our troops that we are serious in providing them with what they need to accomplish their mission and to give themselves a little protection while they are at it." Id. at H2828; see also id. at H2858 (remarks of Cong. Lewis); id. at H2890 (remarks o f Cong. Wicker); but see id. at H2818 (remarks of Cong. Goss) (" [L]ast week's debate on the War Powers Act showed that Congress was of many minds on the policy issue, but this debate today is not about policy. . . . It is about money." ). Speaker Hastert likewise emphasized the need to support troops in action, stating that " [l]ast week, the House spoke on the President's policies concerning the engage- ment in Kosovo; and, [c]learly, the House had some misgivings about those poli- 357 Opinions o f the Office o f Legal Counsel in Volume 24 cies. But today, let there be no mistake, the United States Congress stands with its soldiers, sailors, and airmen as they defend America." Id. at H2822. Some Members specifically argued that funding was necessary to continue Operation Allied Force. Congressman Dreier maintained that " the price of failure in Kosovo is simply too great at this point. . . . Congress must ensure that the resources are available to carry out that strategy." Id. at H2821. Congressman Skelton said that the appropriation " ensures that our military has more than ade- quate resources to carry out the Kosovo air campaign." Id. at H2829. Congress- man Knollenberg stated that, while he had " strong reservations about the decisions that have led us to this point," he " believe[d] it is important . . . that NATO continue its operation." Id. at H2833. Congressman Gilman interpreted passage of the appropriation as showing that " we are fully supportive of what our military is doing at the present time in Kosovo." Id. at H2834 (remarks of Cong. Gilman). Opponents of the bill also saw it as authorizing continuing operations in Kosovo. Congressman Stark specifically noted that " [appropriating defense funds for the attack on Yugoslavia gives the President the authorization needed under the War Powers Act to continue the air strikes and allow[s] him to use ground troops if necessary. However, if funds were withheld, the President would be required to remove the troops from their current mission by May 25, 1999." Id. at H2839. Congressman Paul, another opponent, stated that " [f]unding is an endorsement of the war. We must realize that it is equivalent to it. We have not declared this war. If we fund it, we essentially become partners to this ill-advised war." Id. at H2819. d. House and Senate Consideration o f Final Bill In addition to the numerous explicit references to the Kosovo conflict contained in the joint conference report described above, the floor debates on the final version of H.R. 1141 also demonstrate that Congress intended to enable the Presi- dent to continue the campaign for an indefinite period after the W PR's 60 day ''clock'' had run. (i) As he had done in the May 6 debate, Congressman Young again explained to the House the significance of the appropriation for the campaign in Kosovo: A no vote will be sending a message to Milosevic that we are not really serious about bringing him to heel. He does not need to get that message, he has got enough problems already. A no vote will be against those soldiers and sailors and airmen and marines and 358 Authorization fo r Continuing Hostilities in Kosovo coastguardsmen who are involved in this conflagration, or war 145 Cong. Rec. H3263 (daily ed. May 18, 1999). Congressman Lewis was no less clear and emphatic: This bill is committed to funding our effort in Kosovo . . . . As we move into the months ahead, none of us can predict what the cost might be. But this bill is a reflection of the fact that the House wants to make sure that adequate funding is present no matter how long the war may extend itself. . . . I must say, Mr. Speaker, one of the messages we are sending here to our troops that is especially important involves the advanced funding of pay adjustments for the troops. That essentially tells them in clear terms that the House is not only supporting their effort in Kosovo, but intends to continue to support their service for the country as long as it might continue in the months and the years ahead. Id. at H3256. Other speakers stressed the need to fund the NATO mission in Kosovo. Con- gressman Dreier found the bill " absolutely necessary to offset the very significant costs of the Kosovo campaign. . . . [I]t is now a very clear national interest that both the United States of America and the North Atlantic Treaty Organization alliance prevail in this conflict." Id. at H3232-33. Congressman Levin argued that " [t]he House should move quickly to approve the urgently needed funding to continue NATO's military operations against Slobodan Milosevic's forces in Kosovo." Id. at H3263. Congressman Bliley said that the bill would " support NATO so that we can bring the conflict in Kosovo to a speedy and successful conclusion." Id. at H3267. As in the May 6 debate, other House members emphasized the need to support troops in combat. Congressman Regula stated that " the purpose of this bill is to support our troops overseas." Id. at H3257. Congressman Packard said that " H.R. 1141 supports America's troops, and regardless of whether you agree with the policies of this Administration, we can't afford to neglect the needs of those who must carry them out." Id. at H3259. Congressman Weygand voted for the bill " because I believe it is absolutely necessary to provide our troops with the tools and support they need to complete their mission." Id. at H3264. Opponents of the bill also repeated their warnings that the bill would allow the continuation of hostilities. Congressman Kucinich thought that the bill " con- tains provisions that will enable the prosecution of a wide war against the Federal 359 Opinions o f the Office o f Legal Counsel in Volume 24 Republic of Yugoslavia, even though Congress has expressly voted not to declare war." Id. at H3226. Congressman Paul said, " the real principle here today that we are voting on is whether or not we are going to fund an illegal, unconstitutional war. It does not follow the rules of o u r Constitution. It does not follow the rules of the United Nations Treaty. It does not follow the NATO Treaty. And here we are just permitting it, endorsing it but further funding it." Id. at H3228. (ii) The Senate debated H.R. 1141 tw o days after the House vote. The Senate's consideration of the Kosovo appropriation was much less extensive than the House's. As Senator Byrd observed on May 20, 1999 -- the day H.R. 1141 was debated and voted on in the Senate-- " [T]he first time the Kosovo funding has been before the Senate is today in the form of this conference agreement on H.R. 1141." 145 Cong. Rec. S5646 (daily ed. May 20, 1999).37 Although most of the speakers in the Senate debate focused on other aspects of the bill, an opponent, Senator Fitzgerald, spelled out very precisely the effect that passage of the appropriation would have on the issue of war powers: [I]n the past, American presidents have argued that a congressional appropriation for U.S. military action abroad constitutes a congres- sional authorization for the military action. I will not vote for an authorization of money that may be construed as authorizing, or encouraging the expansion of, the President's military operations in Kosovo. I will oppose the appropriation of almost $11 billion for a war I have consistently spoken out against. 145 Cong. Rec. S5665 (daily ed. M ay 20, 1999).38 37 The Senate was aware, well before the floor debate on H R. 1141, of the effect of the WPR on its deliberations over Kosovo. Earlier in the session. Senator McCain had introduced a measure, S.J. Res 20, to authonze the President to use " all necessary force" to achieve the goals o f Operation Allied Force. Id at 2. Although the Senate had at first seemed unlikely to take up that measure, " Senate Parliamentanan Bob Dove announced April 28 . that the resolution fit the critena for tnggenng the W ar Powers Resolution, even though it was not designed with that in m ind." Pat Towell, Congress Set To Provide Money, But No Guidance, fo r Kosovo Mission, C.Q. Weekly, May I, 1999, at 1037. W hen the Senate debated S.J. Res 20 on M ay 3, 1999, Senator Feingold drew attention to the fact that the measure " has been determined to be pnvileged under the terms of . . the War Powers Resolution," and emphasized that " [n]ot only must [the W PR] be taken seriously, but because of the appropnate ruling of the Parliam entanan . . , it is being taken seriously." 145 Cong. Rec S4525 (daily ed May 3, 1999) (remarks of Sen Feingold). Further, he added that before the Parliam entanan's ruling, " many people did not realize for a while, that the W ar Powers Resolution and its clock w ere ticking " I d S J. Res. 20 was tabled by the Senate by a 7 8 22 vote on M ay 4, 1999. 145 Cong. Rec. S4616 (daily ed M ay 4, 1999) Later, the Senate passed a concurrent resolution authorizing the President to conduct military air operations and missile stnkes in cooperation with our NATO allies against the Federal Republic of Yugoslavia. See supra note 2 6 . 38 Senator G orton, another opponent of the bill, also objected that it would " pay for the costs o f the war in the Balkans." Id. at S5650 360 Authorization fo r Continuing Hostilities in Kosovo Speaking immediately after Senator Fitzgerald, Senator Dodd, a supporter of the bill, explained that the appropriation would indeed support the continuation of military action: The original intent of the President's request for emergency appro- priations from Congress was to provide our men and women in uniform with the equipment and materiel they need to effectively strike the Yugoslav military. While I am heartened by recent reports of a possible diplomatic solution, we must remain prepared to con- tinue our military efforts in the absence of an enforceable diplo- matic solution which meets NATO's conditions. Our military, however, cannot effectively combat this evil if we in the Congress fail to offer them our support. One month ago, President Clinton sent a request to Congress for $6 billion in order to fund our military operations through the end o f the fiscal year. That money is included in this bill. Id. at S5666 (emphasis added). Senator Stevens, the Chairman of the Senate Appropriations Committee, asserted that the funding was intended to provide for military operations in Kosovo through the remainder of the calendar (not merely fiscal) year: Hopefully we will not have to see another emcrgcncy supplemental with regard to the conduct of the Kosovo operation during the period of time we will be working on the regular appropriations bills for the year 2000. In effect, we have reached across and gone in -- probably this bill should be able to carry us, at the very least to the end of this current calendar year. The initial requests of the President took us to the end of the fiscal year on September 30. Id. at S5644. As in the House debate, several speakers voiced the need to support troops in ongoing combat. For example, Senator Warner said, " I support this bill for one simple reason -- we are at war. As we speak, we have military forces engaged in combat -- going in harm's way -- in the skies over the Balkans and Iraq. Whether or not there is agreement on how these risk-taking operations are being prosecuted is not now the question. We must support our military forces who are risking their lives daily to carry out the missions they have been assigned." Id. at S5661. See also id. at S5650-51 (remarks of Sen. Hutchison); id. at S565657 (remarks of Sen. Domenici); id. at S5662-63 (remarks of Sen. Durbin); id. at S5664-65 (remarks of Sen. Harkin). 361 Opinions o f the Office o f Legal Counsel in Volume 24 V. Pub. L. No. 106-31 and the War Pow ers Resolution As described in the preceding section, the text of Pub. L. No. 106-31 and the legislative record as a whole make clear that Congress intended, by enacting the President's request, to enable the President to continue U.S. participation in Oper- ation Allied Force for as long as funding remained available, i.e., through at least the end of the fiscal year on September 30, and indeed even longer.39 Congress was repeatedly advised of this effect by its own Members (both supporters and opponents o f continuing the operation) and by Administration witnesses. For at least the month that the Administration's request was pending, and at a time when the duration of hostilities was uncertain, Congress was aware that a vote for the bill would be a vote to authorize the campaign.40 In this context, the concerns that have been voiced about finding congressional authorization in general appropriation statutes are not applicable. The purposes of both H.R. 1664 and H.R. 1141 were plain on the face of the bills. Nor was this a case in which the Committees with jurisdiction over war powers " would [have been] somewhat surprised to learn that their careful work on the substantive legislation had been undone by the simple- and brief-insertion of some inconsistent language in Appropriations Committees' Reports." Hill, 437 U.S. at 191 (rejecting Authority's argument that a series of appropriations funding the Tellico Dam Project constituted an implied repeal of the Endangered Species Act). In this case, " Congress as a whole was aware o f ' the basic terms of the special, emergency appropriation for continuing military operations in Kosovo. Id. at 192. The bill was surely among the most visible and important pieces of legislation introduced 39 As noted above, the core appropriation of som e $5 billion was " available until expended." 113 Stat at 7 6 77 In other words, it was a " no-year" appropriation that remained legally available even after September 30. 40 In reaching this conclusion, we need not and do not decide that the appropriation authonzed the introduction of United States Forces onto the ground in Serbia or Kosovo Interpretation of Pub. L No 106-31 must take into account the House o f Representatives' vote on April 28 to block funding for ground troops without additional specific authorization from Congress, the President's Letter to the Speaker o f the House of Representatives of April 28, 1999, agreeing not to deploy ground troops in a " non-permissive environment" without first " ask[ing] for Congres- sional support,"s e e 145 Cong Rec. H2883 (daily ed. May 6, 1999) (reprinting letter); see also 145 Cong. Rec. H2405 (daily ed Apr. 28, 1999) (remarks of C ong Gephardt, explaining President's representations), 145 Cong Rec S4531 (daily ed. May 3, 1999) (reprinting sim ilar letter o f April 28, 1999, to Senate Majority Leader); Chairman Y oung's statem ent that " [tjhere is nothing in [H.R 1664] that would authonze any money to be used to deploy ground troops into Kosovo," 145 Cong. Rec H2882 (daily ed. May 6, 1999); Congressman Lewis's statement dunng the House A ppropnations C om m ittee's mark-up that " not a dime o f these funds will be spent for troops being placed in K osovo," Transcnpt at 10; and Secretary Cohen's statement o f Apnl 21 that the supplemental appropriation will not fund the introduction o f ground troops to Kosovo. Moreover, on May 25, 1999, Senator Warner, speaking in opposition to a proposed rider to S. 1059, 106th Cong (1999), the Department of Defense authonzation bill for Fiscal Y ear 2000 that would have required Congressional authorization before United Slates ground troops could be deployed in Yugoslavia, stated that, on that day, the Secretaries o f State and Defense and the National Security Adviser, in a meettng with Senators, had " said without any equivocation whatsoever that the President would for- mally com e to the Congress and seek legislation" before deploying ground troops 145 Cong. Rec. S5939 (daily ed M ay 25, 1999) In light o f those actions and statements, which o f course were closely contemporaneous with Congressional consideration o f H.R. 1664 and H.R. 1141, it is unlikely that Congress intended to provide authoriza- tion for the introduction o f ground troops into Serbia or Kosovo by enacting this appropriation. We note, however, that the House voted on M ay 6 to reject an amendment, proposed by Congressman Istook, to ban the use of the supplemental appropriation to fund the deployment o f ground troops into Yugoslavia, " except in time of w ar." 145 Cong. Rec H2879, H 2891-92 (daily ed. M ay 6, 1999). 362 Authorization fo r Continuing Hostilities in Kosovo before the first session of the 106th Congress, and both the Administration and individual members pointedly and publicly underscored its significance. Finally, unlike, for example, the Tellico Dam appropriations involved in Hill, which " rep- resented relatively minor components of the lump-sum amounts" of the Authority's entire budget, H.R. 1141 was a freestanding bill that, in the form in which it was presented by the Administration, focused narrowly on military spending for Operation Allied Force. Id. at 189.41 In sum, H.R. 1141 was intended to enable the President to continue Operation Allied Force, and to furnish him with the necessary funds for doing so, even if that operation were not brought to a successful conclusion by May 25. Pub. L. No. 106-31 is thus analytically similar to earlier congressional appropriation statutes, discussed in Section II, that authorized executive branch action (including the statutes that played a role in authorizing conflict). The House's votes on the four other Kosovo-related measures on April 28 do not lead us to change our conclusion. See supra pp. 348-49. Although the House did defeat the resolution declaring a state of war between the United States and Serbia and passed a resolution blocking funding for ground troops without addi- tional specific authorization, it also defeated a resolution that would have directed the President to remove the Armed Forces from the region and tied on the resolu- tion that would have specifically authorized the President to conduct military air operations against Serbia. The message of all these votes is ambiguous. The only clear message that Congress sent regarding the continuation of military operations in Serbia is Pub. L. No. 106-31, which appropriated over $5 billion to continue these operations. As we have already explained, this was sufficient to constitute specific authorization within the meaning of the WPR. Moreover, the argument, explained earlier, see supra p. 338-39, and invoked by Judge Randolph in his concurrence in C am pbell*2 that appropriation statutes should not be understood as authorizing hostilities because they might just as easily be intended to protect troops already committed, carries little weight here. We recognize that a number of statements made by Members of Congress {e.g., Senator Warner, Congressman Weygand) indicate an intention to " support" already committed troops. These isolated statements, however, do not demonstrate that Congress did not intend to authorize continuing hostilities. The United States did not have ground troops in combat in Serbia or Kosovo at the time Pub. L. No. 106-31 was enacted, but rather was engaged in an air campaign in which U.S. forces were in harm's way only for the length of each sortie flown. If Con- 41 Although Pub L. No 106-31 o f course ended up making a range of appropriations m addition to those for the Kosovo effort, the legislative history makes clear that the b ill's central, overriding purpose was to fund the hostilities in Yugoslavia. 42See Campbell, 203 F 3 d at 31 n.10 (Randolph, J , concum ng) ( " The majority attaches some importance to Congress's decision to authonze funding for Operation Allied Force and argues that Congress could have denied funding if it wished to end the war However, in M itchell v Laird we held that, as 'every schoolboy know s,' Congress may pass such legislation, not because it is in favor o f continuing the hostilities, but because it does not want to endanger soldiers in the field The War Powers Resolution itself makes the same point " ) 363 Opinions o f the Office o f Legal Counsel in Volume 24 gress did not intend to authorize continuing hostilities, but instead intended only to protect previously deployed troops, it could have, and most likely would have, styled its rejection of authorization for continuing hostilities by either phasing out appropriated funds over time, as it did in the case of Somalia, or by prohibiting the use of funds for certain purposes, as it did with the Cooper-Church amend- ment. Here, Congress chose neither option. Instead, it appropriated funds " until expended" without placing any limitations on the use of those funds. The actual steps taken by Congress demonstrate that it intended to authorize the President to continue hostilities, and, in particular, to continue the air campaign. See Berk, 317 F. Supp. at 724 (noting that even though some Members of Congress stated that " their votes for the appropriation did not constitute approval of an undeclared war [in Vietnam]," nonetheless the appropriation " gave Congressional approval to military expenditures in Southeast Asia" ); id. at 728 (finding that the " dis- claimers by individual Congressmen of any approval of the Vietnam conflict" could only " 'disclose the motive and could not disprove the fact of authoriza- tion' " (citation omitted)). In light o f Congress's possible alternatives, reading the statements at issue as indicating an intent to protect already deployed troops simply " doesn't make sense." Ely, supra, at 129. It is more reasonable to interpret those statements as indicating an intent to " support" American troops by author- izing the President to continue hostilities so those troops would be able to com- plete their missions successfully. Section 8(a)(1) does not lead to a contrary conclusion. As discussed above, that section cannot constitutionally be read to take from Congress a mechanism for authorizing war permitted by the Constitution. Instead, it has the effect of establishing a background principle against which Congress legislates. Section 8(a)(1) means, then, that it cannot be " inferred" -- to quote the language of the provision -- that Congress has authorized the continuation of conflicts from the mere fact that it has enacted an appropriation statute (unless the statute references the WPR). Nonetheless, if the text and legislative history of the appropriation statute make clear that it was Congress's clear intent to authorize continued oper- ations, that intent is controlling, even if the statute does not reference the WPR. Such an appropriation statute is an implied partial repeal of section 8(a)(1) (or a supersession of section 8(a)(1)). For reasons already discussed, Pub. L. No. 10631 is such a statute.43 Finally, it is worth observing that, in this case, the underlying purpose of the W PR's " clock" was fully satisfied. That clock functions to ensure that, where the President commits U.S. troops to hostilities without first obtaining congres- 43 For all the reasons discussed in this opinion, the maxim discussed above-that the law disfavors implied repeals, see supra note 22 -- does not apply. This is not a case, for example, in which a Member of Congress would have had to " scrutiniz[e] in detail the [Appropnation] Committee proceedings" to become aware of the discrepancy between section 8(a)(1) and Pub. L. No 106-31. Tennessee Valley Authonty, 437 U S at 189 n.35. Indeed, because Pub L No 106-31 was among the most prominent pieces o f legislation pending before the 106th Congress, and because both the Administration and individual M embers o f Congress strongly and visibly underscored the signifi- cance o f the legislation, " Congress as a whole w as aware o f ' the basic terms of Pub. L No 106-31 Id at 192 364 Authorization fo r Continuing Hostilities in Kosovo sional authorization, Congress has the opportunity to consider the merits of the President's actions and to decide whether those hostilities may continue. Here, the President ordered a series of air strikes in the Federal Republic of Yugoslavia " to demonstrate the seriousness of NATO's purpose so that the Serbian leaders understand the imperative of reversing course; to deter an even bloodier offensive against innocent civilians in Kosovo; and, if necessary, to seriously damage the Serbian military's capacity to harm the people of Kosovo." Letter for the Speaker from the President, 1 Pub. Papers of William J. Clinton at 959. Congress then had the opportunity to deliberate on the wisdom of the President's actions, which it did, considering several resolutions relating to the military efforts in Kosovo. After all of those deliberations, Congress decided to use one of its most important constitutional powers over war and peace -- its appropriation power-specifically to fund the ongoing military effort. By doing so, it authorized the President to continue military activities in the region. Conclusion Pub. L. No. 106-31 constituted Congressional authorization for continuing bombing efforts in Kosovo even after the running of the 60 day clock established by section 5(b) of the WPR. Interpreted in light of constitutional concerns, section 8(a)(1) of the WPR does not lead to an alternative result; properly read, section 8(a)(1) simply has the effect of establishing a background principle against which subsequent Congresses legislate when they enact appropriation statutes. Section 8(a)(1) creates procedural requirements that subsequent Congresses must follow to authorize hostilities. If a subsequent Congress, however, chooses in a particular instance to enact legislation that either expressly or by clear implication authorizes hostilities, it may decide not to follow the WPR's procedural requirements. In this case, read in light of the background principle established by section 8(a)(1), the text and legislative history of Pub. L. No. 106-31 make clear that Congress intended to authorize continuing hostilities in the Federal Republic of Yugoslavia. RANDOLPH D. MOSS Assistant Attorney General Office o f Legal Counsel 365 Jet-Eggn?m?w Wnammtwew, at: game meat at. the at taeateaeatatthea June 143 201'}. The President The White Hanse- 3600 Avenue? Nerthweat Washingtent DC 20500 Dear Mr. Preeideht: Five- days frem new? eur Chantry will reach the 90~day mark item the neti?eatien t0 Congress regarding the eenanteneement ef the military eperatien in Libya which began on March 18, 2012.. On. June 33 291 l, the Hense passed. a whielria ameng ether previaienag made clear that the Administratien has net aaked far, he: Cengresaienal autherizatien 0f the miasien in Libya. Therefore, it would appear that in ?ve clays;s the Administratien will he in. vielatien at the Wat Pewers Reaelntien unless; it aeha the and receives authorization Cengreaa er all US. t?i?QDpS anti reseuzfees free} the $inee the misaian began, the Adminietratien hae previcled taetieal eperatienal hriefinga to the Henge ef Repteaentatives, but the White Hease has Systematieally aveided requesting a formal antherizatiee fer Eta aetieh. It has Simultaneously aeught? however, te portray that its actions are eenaiatent with the War Pewet'a Reselntien. ?"l?he eemhinatien aetiona has left many Members of Cengeeaa, ae well as the Amet?iean peeple, thaetrated by the lack 0f elaeity (we: the Administration?s strategic policiea lay a refusal to acknowledge and respect the tale of the Cengrese, and by a refusal t0 eemply with the haaie teneta of the War Powers Reselntion. Yen took an eath befere the American. peeple en January 20, 2009 in which yen aware t0 "faithfully exeeute the Office Of Preeident" and ta protect and defend the Constitution efthe United States.? he Cenetitutian requires the President. ta ?take Care that the Laws. be faithfully executed?? and one et?thnae laws ia the War Peweta Reaelatien, which requires an approving action by Ceagress er withdrawai within. 90 daya itirem the neti?eatien efa military aperatien. Given the you have ordered. ta the [.13 Armed with respect to Libya and the text of the War Pawers Reaelutiom the Henge is left te conclude that you have made one eftwe determinatimts: either yea have concluded the War Pewera Resolution net apply to the miseieh in. Libya, er yea have determined the Wat Powers; Reseletien is eentrary tn: the Censtitntlon. The .Heuee. and. the American. people whom we represent, deserve to know the determination yen have made, The President Julie 14, .2011 Page 2 Theretbre, en behalf of the institutiee and the American people, I must ask yea the fellowiag questierrs: l-laye yea or your Administratiea conducted the legal analysis t0 justify your position. as ta whether yeur Administratiert Views itselfte be in Compliance with the War Powers Resolutiea s0 that it may eerrtirree current eperatieas, absent tbrmal Cengressieaal support or authorization, erree the 90-day mark is reaehed? Assuming yeti eertdueted that analysis, was it with the ceaseasus View efall stakehelders elithe relevant Departments in the Executive branch? in additien, has there beea an intreduetiee bf a new set (if facts er eireamstances which. weuld have changed the legal. analysis the Office all legal Cetmsel releasecl ea April 13 2031.? Given the gravity of the eeastitatieaal and. statutery qaestiees invelyeel: I request year aaswer by Friday, June 17, 201 l, Freer. the beginning, the Reuse at Representatives has seught {0 balance twe equal imperatives regarding Libya which have beer} in direct eentrariietiee: the House of Representatives takes seriously America?s leadership role it] the werld; ear eeuntry?s interests in the regiea; and the eemmitmeats te and frem its steadfast allies At the same timea streeg eeneem arid eppesitien exists t0 the use at" military farce Wheathe military missiem by design, clarinet secure a .S. strategic peliey ebjeetiye. The engeirig, deeply divisive debate eriginated with a lack of genuine eensultatiea prier {a eemmeneemerrt ef eperatieas anti has been further exacerbated. by the lack ef visibility and leadership freer yen and. year Administratiea. I respect year authority as theegh l' remaia deeply concerned the Cengress has net been provided answers from the Executive branch to t?uedamental questions regarding the Libya mission. necessary the us to fulfill our equally impertaat Constitutional responsibilities. i believe in the metal leadership eur country ear: and sheuld exhibit, especially during such a transfermatienal time in. the Miridle East. sincerely hope the Administratien. will faithfully eereply with the War Pewees Reselutiea and the requests made by the House ef Representatives, and that you will use year unique autherity as but President te engage the Americas] peeple regarding ems missiee in, Libya. Jehe A. Beeheer June 15,2011 The Honorable John A. Boehner Speaker of the House of Representatives Washington, D.C. 20515 Dear Mr. Speaker: On behalf of the Administration, enclosed please find a report and documents regarding U.S. activities in Libya. The report, "United States Activities in Libya," describes U.S. actions in Libya to date. Taken in response to direct appeals from the Libyan people, and acting with a mandate from the United Nations, the United States mobilized a broad coalition, stopped an advancing army, prevented a massacre, established a no-fly zone, and limited the spread of violence and instability in a region pivotal to U.S. security interests. Today, the United States supports NATO military operations pursuant to UNSCR 1973 to protect Libyan civilians, and is working with the Transitional National Council and others to secure an inclusive, democratic transition. The enclosed report consists of unclassified and classified sections: o The unclassified section describes U.S. efforts in Libya; our political and military objectives; an assessment of the current situation; U.S. participation in the NATO operation (and consequences if the U.S. were to cease participation); current and projected military, humanitarian, and related costs; an analysis of whether U.S. operations in Libya are impacting U.S. efforts in Iraq and Afghanistan; our current assessment of the Interim Transitional National Council (TNC) and U.S. contacts with the TNC to date; legal analysis; and a listing of congressional hearings, briefings, and other consultations to date. o The classified annex contains information relating to U.S. military operations; opposition military groups; coalition contributions to the NATO mission; extremist groups in Libya; and the MANP AD threat. In addition to the report, please also find CDs containing electronic copies of documents from departments and agencies that provide further background and context on our efforts in Libya, including United States' support for Operations Odyssey Dawn and Unified Protector. These materials include briefing slides, fact sheets, and other material on the operations 1 previously provided to relevant committees ofjurisdiction; copies of the 32 update reports sent to 1,600 congressional staffers over the past several months; cost projections; relevant correspondence; transcripts; official notifications sent to the Senate and House; and other material. In order to safeguard classified materials appropriately (both the report annex and supporting documents) - and consistent with both Executive and Congressional classified information handling requirements - such information and documents are being transmitted under separate cover. Individual Members and appropriately cleared staff can access such materials through arrangements made with their respective Leaders and as appropriate and consistent with the protection of intelligence sources and methods and applicable classified information handling requirements. On behalf of the Administration, we remain committed to continuing to work with Congress on this important matter. Sincerely, q&Y/~ seph E. Macmanus Acting Assistant Secretary Legislative Affairs Department of State Elizabeth L. King Assistant Secretary Legislative Affairs Department of Defense 2 United States Activities in Libya Table of Contents Overview of United States Activities in Libya ........................ 2 Political and Military Objectives and Means .......................... 5 Background ......................................................... 5 Where We Are Now ................................................... 8 U.S. Support to NATO Mission ........................................ 11 Consequences of U.S. Not Participating in NATO Operations ........... 13 Current and Projected Costs ......................................... 14 Military Costs .................................................... 14 Humanitarian Costs ................................................ 17 Department of State Operational Costs ............................. 20 Analysis of Impact on U.S. Operations in Iraq and Afghanistan ....... 21 Department of Defense ............................................. 21 Department of State ............................................... 21 USAID ............................................................. 21 Description of Interim Transitional National Council ................ 22 Recognition ....................................................... 22 Transition Planning ............................................... 23 Assistance ........................................................ 23 Analysis of Potential Ties to Extremist Groups .................... 24 Legal Analysis and Administration Support for Bipartisan Resolution . 25 Congressional Consultation .......................................... 26 Contents of Classified Annex ........................................ 32 Importance of U.S. Military to Opposition Groups Assessment of Opposition Military Groups Coalition Contributions to NATO Mission Assessment of Extremist Groups in Libya Threat Assessment of MANPADs, Ballistic Missiles, and Chemical Weapons in Libya 1 Overview of United States Activities in Libya In his address to the nation on Libya on March 28, 2011, President Obama presented a comprehensive explanation for why he authorized military action as part of an international coalition to protect the people of Libya and to enforce U.N. Security Council Resolution (UNSCR) 1973. In the intervening weeks and months, coalition efforts have been effective in protecting the Libyan population. The regime has suffered numerous defeats, cities and towns across Libya have been liberated from brutal sieges, strong sanctions are in place, and the regime is encountering serious difficulties raising revenues through oil sales or other means. All these actions and outcomes are consistent with UNSCR 1973. As the President explained, much was at stake when Qadhafi began attacking his people and threatened to show "no mercy" to the city of Benghazi and its population of 700,000: "In this particular country - Libya - at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Qaddafi's forces in their tracks without putting American troops on the ground." The United States and its international partners acted decisively and with unprecedented speed to mobilize a broad coalition, secure an international mandate to protect civilians, stop an advancing army, prevent a massacre, and establish a nofly zone. In contrast, the war in Bosnia raged for nearly two years before the first NATO military operations took place, and three years before NATO began ground strikes to protect the civilian population. The President authorized these actions for several reasons of national interest: o To limit the spread of violence and instability in a region pivotal to our security interests, particularly while it is undergoing sensitive transitions; 2 o To prevent an imminent humanitarian catastrophe; and o To show the people of the Middle East and North Africa that America stands with them at a time of momentous transition. Beyond the specific military objectives, the President has stated that Qadhafi has lost all legitimacy to rule and must step down. His brutal behavior against his own population has been catalogued by a United Nations Commission of Inquiry and has resulted in a request for arrest warrants by the Prosecutor of the International Criminal Court for crimes against humanity. Moreover, the Libyan government's actions posed a significant threat to regional peace and security. As the President noted in his March 21 report to Congress, the Qadhafi regime's "illegitimate use of force" was "forcing many [civilians] to flee to neighboring countries, thereby destabilizing the peace and security of the region." "Left unaddressed," the President further noted, "the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States." The risk of regional destabilization was also recognized by the UN Security Council, which determined in Resolution 1973 that the situation in Libya was "a threat to international peace and security." Indeed, as Secretary of Defense Robert Gates testified to Congress on March 31, "it continues to be in our national interest to prevent Qadhafi from visiting further depredations on his own people, destabilizing his neighbors, and setting back the progress the people of the Middle East have made...." Further, the longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security was at stake in Libya once the Council took action to impose a no-fly zone and to authorize all necessary measures to protect civilians and civilian populated areas under threat of attack, particularly after Qadhafi's forces ignored the UNSC's call for a cease fire and for the cessation of attacks on civilians. As President Obama noted in his March 28 speech, without military action to stop Qadhafi's repression, "[t]he writ of the United Nations Security Council would have been shown to be little more than empty words, crippling that institution's future credibility to uphold global peace and security." 3 A growing chorus of international voices has now called for Qadhafi's departure, including the G8, the Contact Group representing more than 20 countries, Russian President Medvedev, Turkish Prime Minister Erdogan, and several key African leaders such as the Presidents of Gabon, Mauritania, and Senegal. This growing consensus and Qadhafi's control of less and less of Libya indicate that his departure is only a matter of time. During the past few weeks the situation on the ground for Libyan civilians under threat has steadily improved. Qadhafi's forces were halted at the gates of Benghazi and have since been driven back from several towns and cities across the country. The Libyan opposition, led by a Transitional National Council (TNC), continues to gain credibility and legitimacy and has laid out its vision for an inclusive approach for a post-Qadhafi political transition. For that reason, Secretary Clinton said on June 9 that the United States believes the TNC is the legitimate interlocutor for the Libyan people at a time when the Qadhafi regime has lost all legitimacy to rule. Australia, Canada, Germany, Spain, and the UAE have all made similar statements over the past two weeks. 4 Political and Military Objectives and Means The President has honored his commitment to focus the preponderance of our military effort on the front end of operations in Libya, using our unique assets to destroy key regime military targets and air defense capabilities in order to establish a no-fly zone and enable protection of civilians as part of the enforcement of UNSCR 1973. These actions set the conditions so that, after a limited time, command of these operations transferred to NATO. Since that April 4 transition, U.S. military involvement has been limited to a supporting role, enabling our allies and partners to ensure the safety of Libyan civilians. On the political front, the United States, with its partners in the coalition, has also continued to employ other elements of national power to support efforts to bring stability to Libya and allow the Libyan people to reclaim their future. As Secretary of State Hillary Clinton testified to Congress on March 1, "The stakes are high. And this is an unfolding example of using the combined assets of diplomacy, development and defense to protect our interests and advance our values." Background The crisis began when the Libyan people took to the streets in February to demand reforms and stand up for their human rights. Qadhafi's security forces responded with extreme violence. Fighter jets and helicopter gunships attacked people who had no means to defend themselves. There were reports of government agents raiding homes and hospitals to round up or kill wounded protestors, and of indiscriminate killings, arbitrary arrests, and torture as Qadhafi's forces began a full-scale assault on cities that were standing up against his rule. For these reasons, the International Criminal Court Prosecutor has requested arrest warrants for crimes against humanity for Qadhafi, his son Saif al-Islam, and one of his intelligence chiefs. The Prosecutor also recently announced that he has found increasing evidence that Qadhafi was personally involved in ordering mass rapes of Libyan women as part of his campaign of terror. The President responded to the growing violence in Libya on February 25 when he issued Executive Order 13566, which imposed significant economic sanctions on Qadhafi, his government, and close associates. The Executive Order imposed a general freeze 5 on all assets of the Government of Libya that are in the United States or are in the possession or control of U.S. persons anywhere in the world. The President authorized the Treasury Department, in consultation with the State Department, to publicly designate for sanctions on additional senior Libyan government officials, those responsible for human rights abuses related to political repression in Libya, and those who provide material financial support for individuals and entities whose assets are frozen. To date, we have frozen over $37 billion pursuant to E.O. 13566. We strongly support Senate Bill 1180 that was introduced by Senators Johnson, Shelby, Kerry, McCain, Levin and Lieberman on June 13. This legislation would make frozen assets available for humanitarian relief purposes to and for the benefit of the Libyan people. Also on February 25, the Secretary of State approved a policy to revoke the visas held by these officials, others responsible for human rights violations in Libya, and their immediate family members. The Secretary of State also suspended the very limited military cooperation we have had with Libya, including pending sales of spare military equipment. On February 26, the U.N. Security Council also responded to this violence by unanimously adopting Resolution 1970, which demanded an end to the violence, referred the situation in Libya to the International Criminal Court, imposed a travel ban on, and froze the assets of Qadhafi, and members of his family and inner circle. Rather than respond to the international community's demand for an end to the violence, Qadhafi's forces continued their brutal assault against the Libyan people. On March 1, the U.S. Senate passed a resolution that "condemn[ed] the gross and systematic violations of human rights in Libya, including violent attacks on protestors" and urged that the United Nations take action to protect civilians in Libya from attack, including by imposing a no-fly zone. The people of Libya appealed to the world for help. The Gulf Cooperation Council and the Arab League called for the establishment of a no-fly zone. Acting with partners in NATO, the Arab World and the African members of the Security Council, the United States pushed for the passage of U.N. Security Council Resolution 1973 on March 17. The resolution demanded an immediate ceasefire in Libya, including an end to the current attacks against civilians; imposed a ban on all flights in the country's airspace; authorized the use of all necessary measures to protect civilians; and tightened sanctions on the Qadhafi 6 regime and entities it owns or controls, including the National Oil Corporation and its subsidiaries. As his troops continued pushing toward Benghazi, a city of nearly 700,000 people, Qadhafi again defied the international community, declaring, "We will have no mercy and no pity." At that moment, as the President explained in his speech to the nation on March 28: "We knew that if we waited one more day, Benghazi could suffer a massacre that would have reverberated across the region and stained the conscience of the world." Stopping a potential humanitarian disaster became a question of hours, not days. The costs of inaction would have been profound. Thousands of civilians would very likely have been slaughtered, a ruthless dictator would have been triumphant precisely at a time when people across the region are challenging decades of repression, and key U.S. allies, including Egypt and Tunisia, would have been threatened by instability on their borders during a critical point in their own transitions toward a more promising future. Consequently, the President directed U.S. departments and agencies to rapidly help establish a no-fly zone, stop Qadhafi's forces from advancing on Benghazi, expand the coalition, and respond to the humanitarian crisis in Libya. The President made clear that our military objective, supported by a coalition of allies and partners, would be to protect civilians and enforce the terms of the resolution, requiring: o That all attacks against civilians must stop; o That Qaddafi stop his troops from advancing on Benghazi, pull them back from Ajdabiya, Misrata, and Zawiya and other cities, and establish water, electricity and gas supplies to all areas; and o That humanitarian assistance be allowed to reach the people of Libya. Establishing these conditions would pave the way for a genuine political transition - of which Qadhafi's departure is a critical component. To bring about this objective, along with the international community, the United States responded to this crisis by developing, implementing, and monitoring sanctions and freezing billions in Government of Libya assets, building a broad international coalition focused on escalating diplomatic pressure on Qadhafi and increasing his isolation, and initiating 7 and sustaining political support for military operations. This operation was launched just over a month after the first significant protests in Libya, nine days after Gaddafi began using airpower against civilians -- and, most importantly, before Qadhafi was able to overrun Benghazi with "no mercy" as he pledged he would do. To lend perspective on how rapidly this military and diplomatic response came together, when people were being brutalized in Bosnia in the 1990s, it took the international community two years to intervene with air power to protect civilians and a year to defend the people of Kosovo. It took the United States and its coalition partners 31 days to prevent a slaughter in Libya. The United States has also helped the international effort to provide humanitarian relief to the people of Libya, providing almost $81 million to help those in need inside Libya and those who have fled the violence. These funds help evacuate and repatriate third-country nationals, care for refugees on Libya's borders, and deliver food and medicine. With U.S. government funding, four non-governmental organizations (NGOs), four U.N. agencies, and two international organizations are actively providing assistance inside Libya. The international community has already contributed, committed or pledged $245 million. The U.S. government has also provided military in-kind assistance valued at nearly $1.1 million, pertaining to the transport of 1,158 Egyptians from Tunisia to Egypt via U.S. C-130 aircraft. Where We Are Now An international coalition of NATO and Arab allies continues to pursue the limited military mission to enforce U.N. Security Council Resolutions 1970 and 1973 and protect the Libyan people. At the onset of military operations, the United States leveraged its unique military capabilities to halt the regime's offensive actions and degrade its air defense systems before turning over full command and control responsibility to a NATO-led coalition on March 31. Since that time: o Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time. o All 20 ships enforcing the arms embargo are European or Canadian. 8 o The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas. o The United States provides nearly 70 percent of the coalition's intelligence capabilities and a majority of its refueling assets, enabling coalition aircraft to stay in the air longer and undertake more strikes. Politically, U.S. leadership continues to play an important role in maintaining and expanding this international consensus that Qadhafi must step down, sending an unambiguous message to the regime. We continue working with the international community to enhance the capabilities of the Libyan opposition and increase the ability to achieve political transition. After many meetings with senior opposition members in Washington and abroad, combined with daily interactions with the U.S. mission in Benghazi, we have stated that the TNC has demonstrated itself to be the legitimate interlocutor of the Libyan people, in contrast to the Qadhafi regime that has lost all legitimacy to rule. The TNC has recently expanded to include representatives from across the country as it aims to become a truly representative body. It has committed itself to promoting a democratic transition, and to adhering to international standards and human rights. We continue working to facilitate greater political, financial, and non-lethal support, to include up to $25 million in medical supplies, rations, and personal protective gear. Perhaps most important is determining an expedient way to unfreeze Libyan government assets to meet pressing humanitarian needs in a manner that is consistent with domestic legal requirements and UNSCRs 1970 and 1973. This is an area where the assistance of Congress is most needed and could become a linchpin in the success of our strategy. Coalition Objectives At no point has the United States acted alone, instead helping to mobilize the international community for collective actions, and creating the conditions for others to work toward our mutual objectives and to share the costs of these efforts. The NATO9 led coalition has made its dedication to sustaining this momentum clear, recently deciding to extend Operation Unified Protector for another 90 days after June 27th. At the June 8 meeting of NATO Defense Ministers, NATO reaffirmed the April 14th statement of Foreign Ministers that operations would continue "until all attacks and threats against civilians and civilian populated areas have stopped... until the regime has pulled back all its forces -- including its snipers and its mercenaries -- away from civilian centers and back to their bases. And until there is a credible and verifiable ceasefire, paving the way for a genuine political transition and respecting the legitimate aspirations of the people of Libya." As the coalition continues its effort to protect Libya's civilian population, we are likewise escalating the political, diplomatic, and financial pressure on Qadhafi. The results of this effort are most tangibly demonstrated in the list of former officials who have now abandoned him, which continues to grow. His foreign ministers, an interior minister, ambassadors to the United States and the United Nations, a central bank governor, an oil minister, five Generals, and his labor minister have defected as well. And we have again begun to see brave protestors taking to the streets of Tripoli as well as uprisings in the key cities of Zawiyah and Zlitan. The escalating pressure against Qadhafi is steadily increasing his isolation and eroding his influence, both within Libya and worldwide. The Contact Group -- representing more than 20 nations and the UN, Arab League, NATO, EU, OIC and GCC -- has met at the Foreign Minister level three times, and remains united in the proposition that "Qadhafi, his family, and his regime have lost all legitimacy. They must go so that the Libyan people can determine their own future." The G8 and an increasing number of leaders -- from Russian President Medvedev to Turkish Prime Minister Erdogan to Senegalese President Wade -- have all called publicly for Qadhafi's departure. Many states have expelled Qadhafi's diplomats; Libya's national oil company and central bank are prohibited from conducting normal business; and the International Criminal Court Prosecutor has requested warrants for several senior Libyan officials, including Qadhafi and his son Saif al-Islam. 10 U.S. Support to NATO Mission Acting under U.N. Security Council Resolution 1973, and as part of a multilateral coalition with broad international support, Operation ODYSSEY DAWN (OOD) was launched on March 19, 2011, to protect the Libyan people from Qadhafi's forces. Responsibility for leading and conducting this mission -- now called Operation UNIFIED PROTECTOR (OUP) -- transitioned on March 31 to an integrated NATO command, with all operations fully under NATO by April 4. The focus of OUP is to protect civilians and civilianpopulated areas under attack or threat of attack. The mission continues to concentrate on three elements: enforcement of a naval arms embargo, enforcement of a no-fly zone, and actions to protect civilians from attack or the threat of attack. The Department of Defense is providing forces to NATO in support of OUP. U.S. armed forces now provide unique capabilities to augment and support NATO and coalition partner contributions. These capabilities include the following: electronic warfare assistance; aerial refueling; strategic lift capability; personnel recovery and search and rescue, intelligence, surveillance and reconnaissance support; and an alert strike package. The United States is also augmenting the NATO Peacetime Establishments at the three NATO Headquarters with a number of additional U.S. military personnel. The additional strike assets described above are on continuous stand-by alert status to augment NATO and coalition forces if their capacity or capability were to be deemed inadequate by Supreme Allied Commander Europe (SACEUR) and those assets were subsequently authorized for use by the U.S. Secretary of Defense. A list of specific United States military assets is provided in a classified annex. As President Obama has clearly stated, our contributions do not include deploying U.S. military ground forces into Libya, with the exception of personnel recovery operations as may be necessary. As articulated at the NATO Ministerial discussions on June 8, the decision has been made to extend the operation for another 90 days, from June 27, 2011, until the end of September 2011. This sends a clear signal that NATO will stay the course and will keep up the pressure necessary to bring this crisis to an early conclusion. 11 The United States and its NATO and coalition partners will keep up the pressure on Qadhafi until the following three objectives are fulfilled, as agreed by the Foreign Ministers in Berlin on April 14, specifically: that the Qadhafi regime must cease attacks on civilians; verifiably withdraw all its forces to its bases; and allow immediate, full, safe, and unhindered humanitarian access. The United States is providing unique assets and capabilities that other NATO and coalition nations either do not possess or posses in very limited numbers -- such as suppression of enemy air defense (SEAD); unmanned aerial systems; aerial refueling; and intelligence, surveillance, and reconnaissance (ISR) support. These unique assets and capabilities are critical to the successful execution and sustainment of NATO's ability to protect Libyan civilians and civilian populated areas from attack or the threat of attack and NATO's ability to enforce the no-fly zone and arms embargo. They enable the Operation UNIFIED PROTECTOR (OUP) commander to find, fix, track, target, and destroy regime forces threatening and attacking civilians and civilian populated areas. 12 Consequences of U.S. Not Participating in NATO Operations If the United States military were to cease its participation in the NATO operation, it would seriously degrade the coalition's ability to execute and sustain its operation designed to protect Libyan civilians and to enforce the no-fly zone and the arms embargo, as authorized under UNSCR 1973. Cessation of U.S. military activities in support of OUP would also significantly increase the level of risk for the remaining Allied and coalition forces conducting the operation, which in turn would likely lead to the withdrawal of other NATO and coalition nation participation in the operation. Furthermore, if NATO had to terminate the operation before the recently agreed 90-day extension (to September 27) because it did not possess the assets and capabilities required to conduct or sustain the operation, then NATO's credibility would be damaged with significant consequences for U.S., European, and global security. 13 Current and Projected Costs Military Costs The cost through June 3, 2011, for DoD military operations and humanitarian assistance efforts in Libya is $715.9 million. DoD Libya Operations Dollars in Millions Daily Operations Munitions Global Lift and Sustain Subtotal Military Operations Drawdown of DoD Supplies Sec 3(a)(7) Estimated Cost thru June 3, 2011 313.7 398.3 1.6 713.6 1.3 Humanitarian Assistance (OHDACA) 1 1.0 715.9 Total Of this amount, $713.6 million was used to fund military personnel pay costs, travel and sustainment of personnel, operating (flying hours), expended munitions, supplies, airlift, and a small amount for lift and sustainment costs for coalition partners supporting operations in Libya. Presidential Determination number 2011-09, signed April 26, 2011, directed the drawdown of up to $25 million in nonlethal commodities and services to support key U.S. Government partners such as the Transitional National Council in efforts to protect civilians and civilian populated areas under threat of attack in Libya. On May 10, 2011, the Department delivered 10,000 cases (120,000 meals) of Halal Meals Ready to Eat (MREs) to Benghazi, Libya, at a cost of $1.3 million. All remaining items (i.e., uniforms, bullet-proof vests, binoculars, maps, tents, and medical supplies) are scheduled for delivery to the Benghazi port on or about June 15. The current total cost estimate for goods and transportation is $15 million (i.e., $6 million in goods and $9 million in transportation 1 Overseas Humanitarian, Disaster and Civic Aid 14 costs), which leaves approximately $10 million in drawdown authority that has not been utilized The Department of Defense's direct contribution to humanitarian concerns in the Libya operation as of June 3, 2011, is $1.04 million. This amount funded $0.9 million in airlift and aviation costs to repatriate 1,158 Egyptians from Tunisia to Egypt using U.S. C-130 aircraft, and approximately $0.2 million in humanitarian relief supplies that was provided for the purchase and retrofit of two ambulances operated by the Tunisian Red Crescent Society for the provision emergency humanitarian aid to thousands of migrants fleeing Libya. The total projected cost for DoD operations through September 30, 2011, which is the end of the second 90-day authorization by NATO, is about $1.1 billion. This estimate assumes the current tempo of support operations continues through September 30. Close to $300 million of this total will be offset by lower peacetime operating costs in the Air Force, in part as a result of the Libyan operations. Hence the current estimate of incremental costs through September 30 is about $0.8 billion. DoD Libya Operations Dollars in Millions Daily Operations Munitions Global Lift and Sustain Subtotal Military Operations Drawdown of DoD Supplies Sec 3(a)(8) Estimated Cost thru Sept 30, 2011 618 450 10 1,078 25 Humanitarian Assistance (OHDACA) 2 1 Total 1,104 The Department does not plan to ask for supplemental appropriations and will pay for these costs using currently available Defense funds. These operating costs will be 2 Overseas Humanitarian, Disaster and Civic Aid 15 offset through reductions in lower priority support activities, and there will be some reduction to the peacetime flying hour program in part as a result of the Libya operation. The Department plans to replace munitions used in the Libyan operation as part of its normal programming and budgeting process. 16 Humanitarian Costs The U.S. Government (USG) has provided almost $81 million for humanitarian activities in response to the conflict in Libya as of June 3, 2011. FY 2011 USG ASSISTANCE FOR THE LIBYA COMPLEX EMERGENCY Implementing Partner Activity Location Amount USAID/OFDA ASSISTANCE Agency for Cooperation and Technical Logistics and Relief Supplies Development (ACTED) $25,000 ACTED Economic Recovery and Market Systems, Logistics and Relief Supplies Libya $500,000 Danish Refugee Council Protection, Logistics and Relief Supplies Libya $438,649 International Relief and Development Logistics and Relief Supplies Libya $349,223 TRC Emergency Relief Supplies Tunisia $50,000 TRC USAID/OFDA Commodities: 2,000 blankets; 40 rolls of plastic sheeting; 9,600 water containers Tunisia $40,300 International Medical Corps (IMC)/Merlin 10 health kits and three trauma Kits, plus transportation Libya $357,905 IMC Health, Logistics and Relief Supplies, and Water, Sanitation, and Hygiene (WASH) Libya $2,500,000 Merlin Health Libya $483,854 Mercy Corps Logistics and Relief Supplies, WASH, Agriculture and Food Security Libya $550,000 OCHA Humanitarian Coordination and Information Management Libya $500,000 17 Libya WHO Health TBD WFP Logistics and Emergency Telecommunications Libya $750,000 WFP U.N. Humanitarian Air Service (UNHAS) Libya $750,000 TBD Emergency Relief Activities and Relief Supplies Affected Areas $184,122 Program Support Costs $1,000,000 $1,520,947 TOTAL USAID/OFDA $10,000,000 USAID/FFP WFP Title II Emergency Food Assistance Libya $5,000,000 WFP Local and Regional Food Procurement Tunisia, Egypt $5,000,000 TOTAL USAID/FFP $10,000,000 STATE/PRM ASSISTANCE IOM Evacuation and repatriation programs for third-country nationals Libya, Tunisia, Egypt $27,500,000 UNHCR Assistance and protection for Libyan internally displaced persons as well as refugees and migrants in Tunisia, Egypt, Italy, and Malta Libya, Tunisia, Egypt $14,500,000 ICRC Medical and surgical care, water and sanitation facilities, protection of detainees and conflict victims Libya, Tunisia, Egypt $17,700,000 WHO Support for the Tunisian Ministry of Public Health to respond to the medical needs of Libyans, third-country nationals, and host communities in Tunisia Tunisia TOTAL STATE/PRM $300,000 $60,000,000 STATE/PM/WRA ASSISTANCE Mines Advisory Group Conventional Weapons Destruction Libya $486,937 Swiss Foundation for Conventional Weapons Destruction Libya $470,670 18 Mine Action TOTAL STATE/PM/WRA $957,607 TOTAL USAID AND STATE HUMANITARIAN ASSISTANCE FOR THE LIBYA COMPLEX EMERGENCY IN FY 2011 [1] $80,957,607 The total does not include an additional $500,000 provided by USAID/OFDA to OCHA's Middle East Office for regional coordination. The USG has also provided in-kind military assistance valued at nearly $1.1 million, pertaining to the transport of 1,158 Egyptians from Tunisia to Egypt via U.S. C-130 aircraft. The overall humanitarian situation in Libya remains relatively stable. In the coming months, the U.S. Agency for International Development (USAID) and the Department of State's Bureau for Population, Refugees, and Migration (State/PRM) project that additional, targeted humanitarian funding may be required to respond to unforeseen needs in Libya, particularly in areas that are currently inaccessible. These costs will depend on the duration and the intensity of conflict. USAID's Food for Peace Office (FFP) has no immediate plans for additional food assistance to Libya but will work closely with the World Food Program (WFP) and other partners to identify and respond to new emergency food needs, if necessary. On June 9, 2011, at the third meeting of the Contact Group for Libya, Secretary of State Hillary Clinton announced an additional contribution from State/PRM of $26.5 million (included in the above table) to address humanitarian needs in Libya and neighboring countries. The newly announced funding will support the work of the International Committee of the Red Cross (ICRC), the Office of the U.N. High Commissioner for Refugees (UNHCR), and the International Organization for Migration (IOM) in the region. Funds will also support the U.N. World Health Organization (WHO) to continue providing assistance to the Tunisian government to meet the health needs of displaced Libyans, third-country nationals, and Tunisian host communities. USAID's Office of Transition Initiatives (USAID/OTI) is planning to provide up to $5 million for community groups, local media, and, as appropriate, interim governing authorities in Eastern Libya. 19 Department of State Operational Costs Department of State Operational Costs Projected Committed Thru June 3 thru State Operations Account June 3 EOY Diplomatic & Consular Programs-NEA 1,004,586 941,252 NEA (Non-Add) 996,586 941,252 MED (Non-Add) 8,000 Emergencies in the Diplomatic and Consular Service 1,836,205 Repatriation Loans Program Account-Consular Affairs Diplomatic Security TOTAL, State Operations 45,000 823,882 3,709,673 20 1,500,000 2,441,252 Total Projected Thru EOY 1,945,838 1,937,838 8,000 1,836,205 45,000 2,323,882 6,150,925 Analysis of Impact on U.S. Operations in Iraq and Afghanistan Department of Defense: There has not been a significant operational impact on United States activities in Iraq and Afghanistan. All the forces that were briefly diverted from other operations have been replaced, with the exception of one Guided Missile Destroyer (DDG). That capability will be replaced during June 2011. In some cases, forces were delayed in arriving in Iraq and Afghanistan, but the operational impact was mitigated by forces already supporting these operations. Department of State: The Department has not experienced, nor does it anticipate, any impact on its ongoing activities in Iraq. USAID: Developmental projects in Afghanistan and Iraq are funded primarily through Economic Support Funds and supplemental funding appropriated by the Congress. As of June 3, the majority -- $15 million of $20 million -- of USAID assistance for the Libya crisis was funded with the International Disaster Assistance (IDA) account, including $10 million from USAID's Office of U.S. Foreign Disaster Assistance (USAID/OFDA) and $5 million from USAID/FFP for local and regional food procurement. The remaining $5 million from USAID/FFP utilizes Food for Peace Title II funds. As such, humanitarian activities in Libya have no adverse impact on USAID activities in Iraq and Afghanistan. 21 Description of Interim Transitional National Council The Libyan opposition's Transitional National Council (TNC) is composed of 45 members, led by former Libyan Minister of Justice Mustafa Abdujalil, that has been organized to coordinate essential services and represent the Libyan people during the current crisis. The TNC has emphasized the importance of representing all regions and people in Libya and even includes members from regime-controlled areas such as Tripoli and Sebha. In addition to the larger council, the TNC has organized a 15 person executive bureau, led by interim Prime Minister Mahmoud Jibril, to handle specific portfolios including Foreign Affairs, Finance and Oil, Justice and Human Rights, Education, Health and Reconstruction and Infrastructure, among others. Currently, security conditions do not permit the Council to fully and adequately fulfill all of the TNC's representational objectives, and political disagreements exist, as they would in any open and diverse democratic setting. The TNC has consistently asserted that it is serving a temporary administrative role until the regime steps down and an interim government can be put in place to represent all of Libya. While it has not always been clear about how long this temporary role should continue, the TNC recognizes that elections will be needed in a reasonable time after the collapse of the Qadhafi regime, to provide legitimacy to a new Libyan government. The TNC has dedicated itself to paving the way for an inclusive, democratic process to take the place of the regime once Qadhafi departs power. The TNC has also issued clear statements noting its intent to respect the Geneva Conventions, its respect for human rights, and repudiation of terrorism. Recognition: Secretary Clinton, the State Department's envoy in Benghazi and other U.S. officials are engaging members of the Libyan opposition, including the TNC, to understand their aspirations and the steps they are undertaking to build a democracy that reflects the will of the Libyan people. The United States views the TNC as the legitimate interlocutor for the Libyan people during this interim period and it is the institution through which we are engaging the Libyan people, in addition to our work with Libyan civil society. This is in stark contrast to the authoritarian Qadhafi regime, which has no constitution, does not govern by the rule of law and has lost all legitimacy to rule. Australia, Canada, Germany, Spain, and the UAE have all made similar statements in recent days. We are encouraged by the steps taken by the TNC to bring Libyans 22 together to plan their own future and a permanent, inclusive, constitutional system that will protect the rights of all Libyans. Transition Planning: The TNC is engaged in detailed planning for a political transition following the current conflict and the departure of Qadhafi from power. The TNC laid out a roadmap for an inclusive political process to take the place of the regime once Qadhafi departs power. The roadmap, which is predicated on preserving the unity and sovereignty of Libya, lays out steps for drafting a constitution, convening a national assembly and implementing an interim government. The TNC has also focused on unifying Libya through implementing national reconciliation mechanisms and ensuring the full participation of areas currently under regime control. In this regard, the TNC has shown a willingness to work with technocrats from the regime, provided they have not participated in human rights violations. The U.S. envoy in Benghazi is engaged in regular discussions with the TNC regarding its plans for a political process, its assessment of a realistic timetable for implementation, and the role of the international community in assisting the transition. The TNC's ability to affect a political transition will depend on a favorable resolution of the current conflict and the departure of Qadhafi from power. We believe that the TNC is genuinely committed to fulfilling the democratic aspirations of the Libyan people, and we support the steps it is taking to meet this goal. On the international stage, the TNC has been conducting extensive outreach to build awareness of, and garner support for, the Libyan opposition. Domestically, it has been working closely with municipal councils to provide essential services to the areas under opposition control, such as water, electricity and security. The TNC has consistently declared its commitment to protecting the human rights of all Libyans, agreed to treat captured regime soldiers in accordance with the Geneva Conventions and publicly rejected terrorism and extremist influences. Assistance: Despite pledges of assistance from a number of would-be donors, donors still need to disburse pledges of financial assistance to the TNC. To facilitate the vesting of assets blocked by the United States, the Administration supports Senate Bill 1180 that would allow the United States to confiscate property of the Government of Libya to be used for costs related to providing humanitarian relief to the Libyan 23 people. Under this vesting authority, the President would have the authority to decide precisely how the assets would be used, consistent with the legislation. The President would only disburse assets through means that meet our legal and policy standards regarding transparent oversight of the disbursements. The United States also supports crude oil sales from TNCcontrolled areas. On April 26, the U.S. Treasury's Office of Foreign Assets Control (OFAC) posted a new Libya General License and a new Statement of Licensing Policy on Libyan crude oil sales. These actions were taken to remove sanctions barriers under domestic law to U.S. persons' participation in certain transactions involving oil and gas sales by the TNC. On May 25, a U.S. oil refiner, Tesoro, announced that it had purchased the cargo aboard a tanker chartered by the Swiss oil trading company Vitol that had departed opposition territory in mid-April. The tanker arrived at Tesoro's Hawaii refinery on June 8. This cargo is the first known cargo purchased from the Libyan TNC. Analysis of Potential Ties to Extremist Groups: We are not aware of any direct relationship between the TNC and al-Qaeda, Hezbollah, the Libya Islamic Fighting Group (LIFG) or any other terrorist organization. There are reports that former members of the LIFG, which had been initially formed as an anti-Qadhafi group, are present in Eastern Libyan and that some of them were fighting with opposition forces on the front lines against the regime. During the past two years, the Government of Libya had instituted a program to rehabilitate and release from prison members of the LIFG who had renounced terrorism, and some of the former LIFG members in Eastern Libya had participated in this program. The TNC has consistently and publicly rejected terrorism and extremist influences and we have not observed any TNC support or endorsement of the LIFG. In addition, the TNC has publicly declared the secular nature of its organization. The TNC and other members of the opposition have actively worked to open up Eastern Libya to civil society groups for the first time in the 42 years since Qadhafi took power. As a result, non-regime groups that had been previously banned, including the Libyan Muslim Brotherhood, have now organized and are participating in Libyan society. From public press reports, we understand that the Libyan Muslim Brotherhood has declared its support for moderate Islam, emphasized the important role of women in society-building, and formed a relief organization in Benghazi. 24 Legal Analysis and Administration Support for Bipartisan Resolution Given the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad. The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of "hostilities" contemplated by the Resolution's 60 day termination provision. U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo. U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors. The Administration has repeatedly indicated its strong support for the bipartisan resolution drafted by Senators McCain, Kerry, Lieberman, Levin, Feinstein, Graham, and Chambliss that would confirm that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government. 25 Congressional Consultation The Administration has consulted extensively with Congress about U.S. engagement in Libya. Since March 1, the Administration has: o testified at over 10 hearings that included a substantial discussion of Libya; o participated in over 30 Member and/or staff briefings, including the March 18 Presidential meeting with Congressional Leadership, Committee Chairs and Ranking Members; all three requested "All Members Briefings" (two requested by the Senate, one by the House); and all requested "All Staff Briefings;" o conducted dozens of calls with individual Members; and o provided 32 status updates via e-mail to over 1,600 Congressional staff. The list below catalogues Libya-related hearings, briefings, calls, and other communication and consultation between Congress and the Executive Branch from March 1 through June 15. (In addition to what's included below, the Intelligence Community has provided and continues to provide frequent classified written intelligence products on Libya and regular Libya intelligence update briefings to Members and Committees, numbering in the dozens of such briefings since March 1.) June 14: Amb. Cretz provided classified briefing on Libya to staff of the House Appropriations Subcommittee on State and Foreign Operations. June 10: Under Secretary of Defense for Policy Michele Flournoy, Lt Gen Charles Jacoby (J-5), and ODNI provided classified briefing on Libya to SASC Members. June 9: Deputy Assistant Secretary for the Arabian Gulf and Maghreb Affairs, Janet Sanderson; Principal Deputy Assistant Secretary of Defense for International Security Affairs, Joe McMillan; ODNI; JS (Rear Admiral Michael S. Rogers, Director for Intelligence, J-2 & Rear Admiral Kurt Tidd, Vice Director for Operations, J-3); provided classified briefing on Libya to SFRC Members. 26 June 2: Ambassador to Libya Gene Cretz; Principal Deputy Assistant Secretary for International Security Affairs, Joe McMillan; ODNI; JS (Rear Admiral Michael S. Rogers, Director for Intelligence, J-2 & Rear Admiral Kurt Tidd, Vice Director for Operations, J-3); provided classified briefing on Libya to HASC Members. June 1: Assistant Secretary for Near Eastern Affairs, Jeffery Feltman; ODNI; JS (Rear Admiral Michael S. Rogers, Director for Intelligence, J-2 & Rear Admiral Kurt Tidd, Vice Director for Operations, J-3); provided classified briefing on Libya to HFAC Members. Other House Members attended at the request of the Chairwoman and Ranking Member. May 31: ODNI; DOD (Rear Admiral Michael S. Rogers, Director for Intelligence, J-2 & Rear Admiral Kurt Tidd, Vice Director for Operations, J-3); provided classified briefing on Libya to HPSCI Members. May 13: VCJCS called Senators Lugar and Corker to provide an update on Libya operations. May 13: J2, J3 and OSD-P briefed staff for Majority Leader Reid and Chairman Levin on Libya operations. May 12: State Deputy Secretary Steinberg testified before the Senate Foreign Relations Committee on Assessing the Situation in Libya. May 11: State DAS Janet Sanderson and Treasury DAS Daniel Glaser briefed Senate leadership and committee staff on the Libya vesting proposal. May 11: State DAS Janet Sanderson and Treasury DAS Daniel Glaser briefed House leadership and committee staff on the Libya vesting proposal. May 5: State Assistant Secretary Michael Posner and DAS Tamara Wittes testified before HFAC on Transitions in the Middle East including mention of Libya. April 22: VCJCS called Senator Corker to provide an update on Libya Operations. 27 April 19: Amb. Cretz and other State Department briefers provide classified briefs on Libya, focused on the $25 million drawdown package, to SFRC staff and separately to HFAC staff. April 13: Desk officers from State provided SFRC staff classified briefing on Libya. April 8: RADM Rogers (J2) and RADM Tidd (J3) briefed Rep Smith on Libya operations. March 31: Amb. Cretz briefed Sen. Lieberman on Libya. March 31: Amb. Cretz briefed SACFO staff on Libya. March 31: Sec Def and CJCS testified in hearings on Libya before HASC. March 31: Sec Def and CJCS testified in hearings on Libya before SASC. March 31: State Deputy Secretary Steinberg testified before SFRC on Assessing the Situation in Libya. March 31: State Deputy Secretary Steinberg testified before HFAC on Libya: Defining U.S. National Security Interests. March 30: Secretary of State, Secretary of Defense, Deputy Secretary of Treasury, Director of National Intelligence, and Chairman of the Joint Chiefs of Staff conducted all House Members briefing on Libya, the earliest available opportunity following commencement of military operations given the March Congressional recess. March 30: Secretary of State, Secretary of Defense, Deputy Secretary of Treasury, Director of National Intelligence, and Chairman of the Joint Chiefs of Staff conducted all Senators briefing on Libyan operations, the earliest available opportunity following commencement of military operations given the March Congressional recess. March 29: RADM Rogers (J2) and RADM Tidd (J3) briefed Chairman Young and Rep Dicks on Libya. March 28: RADM Rogers (J2), RADM Tidd (J3) participated with State and ODNI in a classified briefing to update Congressional staff on Libya operations. All Congressional 28 staff who had a Secret-level clearance were invited to attend. March 22: State (Ambassador Gene Cretz); ODNI; DOD (Rear Admiral Michael S. Rogers, Director for Intelligence, J-2 & Rear Admiral Kurt Tidd, Vice Director for Operations, J3); and Treasury (Acting Undersecretary David Cohen) participated in interagency closed and open briefing to House and Senate staff on Libya. March 21: The President provided the Speaker of the House of Representatives and the President Pro Tempore of the Senate a report consistent with the War Powers Resolution, which provided details regarding the mission and the specific circumstances under which we were undertaking military action. March 20: VADM Gortney (Director, JS) briefed Chairman Levin on developments in Libya. March 19: Deputy National Security Advisor Denis McDonough contacted Rep. Boehner, Rep. Cantor, Rep. Hoyer, Senator Reid, Senator Durbin, Senator Kyl. March 19: State Department's Deputy Secretary Steinberg spoke with Kerry, Lugar, Ros-Lehtinen and Berman. March 19: DOD USDP Flournoy called House and Senate Armed Services Committee Chairmen and Ranking Members to provide an update on Libya operations. USDP Flournoy also called Senator Sessions. March 19: Admiral Mullen called House and Senate Defense Appropriations Subcommittee Chairmen and Ranking Members to provide an update on Libya operations. March 18: Deputy National Security Advisor Denis McDonough held a conference call with bipartisan, bicameral leadership and committee staff to discuss the President's meeting and to answer questions. March 18: President Obama invited Congress' bipartisan bicameral leadership to the White House to consult on the situation in Libya and brief them on the limited, discrete and well-defined participation that he envisioned for the United States to help implement the U.N. Resolution. The White House invited House and Senate Leadership, Chairs and 29 Ranking of Foreign Affairs, Armed Services and Intel committees. Members of Congress who were able to participate included: Majority Leader Harry Reid Democratic Whip Steny Hoyer Senator Carl Levin Senator Dick Lugar Senator Saxby Chambliss Rep. Mike Rogers Rep. Dutch Ruppersberger Speaker John Boehner Majority Leader Eric Cantor Democratic Leader Nancy Pelosi Senator Dick Durbin Senator Mitch McConnell Senator John Kyl Senator John Kerry Senator Diane Feinstein Rep. Buck McKeon Rep. Ileana Ros-Lehtinen Rep. Howard L. Berman March 17: All Senators briefing on Libya developments and possible USG and international responses including potential military options by an interagency team led by State U/S Bill Burns, with ODNI and DOD. March 17: U/S Burns testified in open session of SFRC on Popular Uprisings in the Middle East, with main focus was on Libya. March 15: Embassy Tripoli Charge and Acting DCM briefed SFRC staff on Libya. March 10: PDASD McMillan (ISA), MG Leins (J5), Col. Olsen (J3) briefed HASC Chairman McKeon on Libya. The briefing included the latest developments and possible military options for Libya, including the mechanics of a no-fly zone. March 10: State A/S Feltman testified before the Middle East and South Asia Subcommittee on Assessing U.S. Foreign Policy Priorities and Needs Amidst Economic Challenges in the Middle East, at which there were questions about Libya. 30 March 4: ASD Vershbow (ISA), RADM Rogers (J2) and RADM Tidd (J3) briefed SASC Members on Libya. They provided an update on Libya including recent intelligence. They also discussed possible military options, including the mechanics of a no-fly zone. March 2: Secretary Clinton testified at SFRC hearing on National Security and Foreign Policy Priorities in the FY 2012 International Affairs Budget, which included discussion of Libya. March 2: Secretary Gates and Admiral Mullen testified at HAC-D hearing on FY 2012 Defense Department Appropriations, which included discussion of Libyan no-fly zone. March 1: Secretary Clinton testified at HFAC hearing on Assessing U.S. Foreign Policy Priorities and Needs Amidst Economic Challenges, which included discussion of Libya. March 1: State DAS Sanderson, DASD Huddleston, MG Holmes, and ODNI provided classified brief to SFRC, SASC and leadership staff on Libya, as well as Yemen and Bahrain. March 1: DASD Huddleston (ISA/AF) and DAS Sanderson (NEA) provided an update briefing on the situation in Libya to SASC and SFRC professional staff members. Humanitarian Assistance Briefings USAID/DCHA (with AA Nancy Lindborg, DAA Mark Ward, D/OFDA Mark Bartolini or DD/OFDA Carol Chan) and State/PRM (with PDAS David Robinson or Kelly Clements) held regular conference calls with Congressional staff to provide briefing updates on humanitarian assistance to Libya and its borders with Egypt and Tunisia. Beginning February 28 through June 14 there were 16 conference calls held - initially twice weekly, then weekly, and now periodically as needed on the following dates: o February 28 o March 4, 8, 11, 15, 18, 22, 29 o April 5, 12, 19, 26 o May 3, 10, 17 o June 14 31 Contents of Classified Annex Importance of U.S. Military to Opposition Groups Assessment of Opposition Military Groups Coalition Contributions to NATO Mission Assessment of Extremist Groups in Libya Threat Assessment of MANPADs, Ballistic Missiles, and Chemical Weapons in Libya 32 Testimony by Legal Adviser Harold Hongju Koh U.S. Department of State on Libya and War Powers Before the Senate Foreign Relations Committee June 28, 2011 Thank you, Mr. Chairman, Ranking Member Lugar, and members of the Committee, for this opportunity to testify before you on Libya and war powers. By so doing, I continue nearly four decades of dialogue between Congress and Legal Advisers of the State Department, since the War Powers Resolution was enacted, regarding the Executive Branch"s legal position on war powers.1 We believe that the President is acting lawfully in Libya, consistent with both the Constitution and the War Powers Resolution, as well as with international law.2 Our position is carefully limited to the facts of the present operation, supported by history, and respectful of both the letter of the Resolution and the spirit of consultation and collaboration that underlies it. We recognize that our approach has been a matter of important public debate, and that reasonable 1 In 1975, shortly after the enactment of the War Powers Resolution, Legal Adviser Monroe Leigh testified before Congress, and then responded to written questions, regarding the meaning and application of the Resolution. See Letter from State Department Legal Adviser Monroe Leigh and Department of Defense General Counsel Martin R. Hoffmann to Chairman Clement J. Zablocki (June 5, 1975), reprinted in War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident: Hearings Before the Subcomm. on International Security and Scientific Affairs of the H. Comm. on International Relations, 94th Cong. (1975) [hereinafter "1975 Leigh-Hoffmann Letter"]. Subsequent Legal Advisers have carried on this tradition. See, e.g., War Powers Resolution: Hearings Before the S. Comm. on Foreign Relations, 95th Cong. (1977) (testimony of Legal Adviser Herbert J. Hansell); War Powers, Libya, and State-Sponsored Terrorism: Hearings Before the Subcomm. on Arms Control, Int'l Security and Science of the H. Comm. on Foreign Affairs, 99th Cong. (1986) (testimony of Legal Adviser Abraham D. Sofaer); H. Con. Res. 82, Directing the President to Remove Armed Forces From Operations Against Yugoslavia, and H.J. Res. 44, Declaring War Between the United States and Yugoslavia: Markup Before the H. Comm. on Int'l Relations, 106th Cong. (1999) (testimony of Principal Deputy Legal Adviser Michael J. Matheson). Cf. Legal Adviser Harold Hongju Koh, Statement Regarding the Use of Force in Libya, American Society of International Law Annual Meeting (Mar. 26, 2011) (discussing "the historical practice of the Legal Adviser publicly explaining the legal basis for United States military actions that might occur in the international realm"). 2 For explanation of the lawfulness of our Libya actions under international law, see Koh, supra note 1. 2 minds can disagree. But surely none of us believes that the best result is for Qadhafi to wait NATO out, leaving the Libyan people again exposed to his brutality. Given that, we ask that you swiftly approve Senate Joint Resolution 20, the bipartisan measure recently introduced by eleven Senators, including three members of this Committee.3 The best way to show a united front to Qadhafi, our NATO allies, and the Libyan people is for Congress now to authorize under that Joint Resolution continued, constrained operations in Libya to enforce United Nations Security Council Resolution 1973. As Secretary Clinton testified in March, the United States" engagement in Libya followed the Administration"s strategy of "using the combined assets of diplomacy, development, and defense to protect our interests and advance our values."4 Faced with brutal attacks and explicit threats of further imminent attacks by Muammar Qadhafi against his own people,5 the United States and its international partners acted with unprecedented speed to secure a mandate, under 3 S.J. Res. 20 (introduced by Senators Kerry, McCain, Levin, Kyl, Durbin, Feinstein, Graham, Lieberman, Blunt, Cardin, and Kirk). 4 Hearing on FY2012 State Department Budget Before the Subcomm. on State, Foreign Operations, and Related Programs of the S. Comm. on Appropriations, 112th Cong. (Mar. 2, 2011). 5 Qadhafi"s actions demonstrate his ongoing intent to suppress the democratic movement against him by lawlessly attacking Libyan civilians. On February 22, 2011, Qadhafi pledged on Libyan National Television to lead "millions to purge Libya inch by inch, house by house, household by household, alley by alley, and individual by individual until I purify this land." He called his opponents "rats," and said they would be executed. On March 17, 2011, in another televised address, Qadhafi promised, "We will come house by house, room by room. . . . We will find you in your closets. And we will have no mercy and no pity." Qadhafi"s widespread and systematic attacks against the civilian population led the United Nations Security Council, in Resolution 1970, to refer the situation in Libya to the Prosecutor of the International Criminal Court. The U.N. Human Rights Council"s Commission of Inquiry into Libya subsequently concluded that since February, "[human rights] violations and crimes have been committed in large part by the Government of Libya in accordance with the command and control system established by Colonel Qadhafi through the different military, para-military, security and popular forces that he has employed in pursuit of a systematic and widespread policy of repression against opponents of his regime and of his leadership." At this moment, Qadhafi"s forces continue to fire indiscriminately at residential areas with shells and rockets. Defecting Qadhafi forces have recounted orders "to show no mercy" to prisoners, and some recent reports indicate that the Qadhafi regime has been using rape as a tool of war. See Secretary of State Hillary Rodham Clinton, Press Statement, Sexual Violence in Libya, the Middle East and North Africa (June 16, 2011), http://www.state.gov/secretary/rm/2011/06/166369.htm. For all of these reasons, President Obama declared on March 26, "[W]hen someone like Qadhafi threatens a bloodbath that could destabilize an entire region; and when the international community is prepared to come together to save thousands of lives--then it"s in our national interest to act. And, it"s our responsibility. This is one of those times." 3 Resolution 1973, to mobilize a broad coalition to protect civilians against attack by an advancing army and to establish a no-fly zone. In so doing, President Obama helped prevent an imminent massacre in Benghazi, protected critical U.S. interests in the region, and sent a strong message to the people not just of Libya--but of the entire Middle East and North Africa--that America stands with them at this historic moment of transition. From the start, the Administration made clear its commitment to acting consistently with both the Constitution and the War Powers Resolution. The President submitted a report to Congress, consistent with the War Powers Resolution, within 48 hours of the commencement of operations in Libya. He framed our military mission narrowly, directing, among other things, that no ground troops would be deployed (except for necessary personnel recovery missions), and that U.S. armed forces would transition responsibility for leading and conducting the mission to an integrated NATO command. On April 4, 2011, U.S. forces did just that, shifting to a constrained and supporting role in a multinational civilian protection mission--in an action involving no U.S. ground presence or, to this point, U.S. casualties--authorized by a carefully tailored U.N. Security Council Resolution. As the War Powers Resolution contemplates, the Administration has consulted extensively with Congress about these operations, participating in more than ten hearings, thirty briefings, and dozens of additional exchanges since March 1--an interbranch dialogue that my testimony today continues. This background underscores the limits to our legal claims. Throughout the Libya episode, the President has never claimed the authority to take the nation to war without Congressional authorization, to violate the War Powers Resolution or any other statute, to violate international law, to use force abroad when doing so would not serve important national interests, or to refuse to consult with Congress on important war powers issues. The 4 Administration recognizes that Congress has powers to regulate and terminate uses of force, and that the War Powers Resolution plays an important role in promoting interbranch dialogue and deliberation on these critical matters. The President has expressed his strong desire for Congressional support, and we have been working actively with Congress to ensure enactment of appropriate legislation. Together with our NATO and Arab partners, we have made great progress in protecting Libya"s civilian population, and we have isolated Qadhafi and set the stage for his departure. Although since early April we have confined our military involvement in Libya to a supporting role, the limited military assistance that we provide has been critical to the success of the mission, as has our political and diplomatic leadership. If the United States were to drop out of, or curtail its contributions to, this mission, it could not only compromise our international relationships and alliances and threaten regional instability, but also permit an emboldened and vengeful Qadhafi to return to attacking the very civilians whom our intervention has protected. Where, against this background, does the War Powers Resolution fit in? The legal debate has focused on the Resolution"s 60-day clock, which directs the President--absent express Congressional authorization (or the applicability of other limited exceptions) and following an initial 48-hour reporting period--to remove United States Armed Forces within 60 days from "hostilities" or "situations where imminent involvement in hostilities is clearly indicated by the circumstances." But as virtually every lawyer recognizes, the operative term, "hostilities," is an ambiguous standard, which is nowhere defined in the statute. Nor has this standard ever been defined by the courts or by Congress in any subsequent war powers legislation. Indeed, the legislative history of the Resolution makes clear there was no fixed view on exactly what the 5 term "hostilities" would encompass.6 Members of Congress understood that the term was vague, but specifically declined to give it more concrete meaning, in part to avoid unduly hampering future Presidents by making the Resolution a "one size fits all" straitjacket that would operate mechanically, without regard to particular circumstances. From the start, lawyers and legislators have disagreed about the meaning of this term and the scope of the Resolution"s 60-day pullout rule. Application of these provisions often generates difficult issues of interpretation that must be addressed in light of a long history of military actions abroad, without guidance from the courts, involving a Resolution passed by a Congress that could not have envisioned many of the operations in which the United States has since become engaged. Because the War Powers Resolution represented a broad compromise between competing views on the proper division of constitutional authorities, the question whether a particular set of facts constitutes "hostilities" for purposes of the Resolution has been determined more by interbranch practice than by a narrow parsing of dictionary definitions. Both branches have recognized that different situations may call for different responses, and that 6 When the Resolution was first considered, one of its principal sponsors, Senator Jacob K. Javits, stated that "[t]he bill . . . seeks to proceed in the kind of language which accepts a whole body of experience and precedent without endeavoring specifically to define it." War Powers Legislation: Hearings on S. 731, S.J. Res. 18, and S.J. Res. 59 Before the Comm. on Foreign Relations, 92d Cong. 28 (1971); see also id. (statement of Professor Henry Steele Commager) (agreeing with Senator Javits that "there is peril in trying to be too exact in definitions," as "[s]omething must be left to the judgment, the intelligence, the wisdom, of those in command of the Congress, and of the President as well"). Asked at a House of Representatives hearing whether the term "hostilities" was problematic because of "the susceptibility of it to different interpretations," making this "a very fuzzy area," Senator Javits acknowledged the vagueness of the term but suggested that it was a necessary feature of the legislation: "There is no question about that, but that decision would be for the President to make. No one is trying to denude the President of authority." War Powers: Hearings Before the Subcomm. on National Security Policy and Scientific Developments of the H. Comm. on Foreign Affairs, 93d Cong. 22 (1973). We recognize that the House report suggested that "[t]he word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope," but the report provided no clear direction on what either term was understood to mean. H.R. REP. NO. 93-287, at 7 (1973); see also Lowry v. Reagan, 676 F. Supp. 333, 340 n.53 (1997) (finding that "fixed legal standards were deliberately omitted from this statutory scheme," as "the very absence of a definitional section in the [War Powers] Resolution [was] coupled with debate suggesting that determinations of ,,hostilities" were intended to be political decisions made by the President and Congress"). 6 an overly mechanical reading of the statute could lead to unintended automatic cutoffs of military involvement in cases where more flexibility is required. In the nearly forty years since the Resolution"s enactment, successive Administrations have thus started from the premise that the term "hostilities" is "definable in a meaningful way only in the context of an actual set of facts."7 And successive Congresses and Presidents have opted for a process through which the political branches have worked together to flesh out the law"s meaning over time. By adopting this approach, the two branches have sought to avoid construing the statute mechanically, divorced from the realities that face them. In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution"s 60-day pullout provision.8 The historical practice supports this view. In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities." My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces."9 On the other hand, as Leigh 7 1975 Leigh-Hoffmann Letter, supra note 1, at 38. 8 Both before and after May 20, 2011, the 60th day following the President"s initial letter to Congress on operations in Libya, few Members of Congress asserted that our participation in the NATO mission would trigger or had triggered the War Powers Resolution"s pullout provision. House Speaker Boehner stated on June 1, 2011, that "[l]egally, [the Administration has] met the requirements of the War Powers Act." House Minority Leader Pelosi stated on June 16, 2011, that "[t]he limited nature of this engagement allows the President to go forward," as "the President has the authority he needs." Senate Majority Leader Reid stated on June 17, 2011, that "[t]he War Powers Act has no application to what"s going on in Libya." Senate Foreign Relations Committee Chairman Kerry stated on June 21, 2011, that "I do not think our limited involvement rises to the level of hostilities defined by the War Powers Resolution," and on June 23, 2011, that "[w]e have not introduced our armed forces into hostilities. No American is being shot at. No American troop is at risk of being shot down today. That is not what we"re doing. We are refueling. We are supporting NATO." Since May 20, the basic facts regarding the limited nature of our mission in Libya have not materially changed. 9 1975 Leigh-Hoffmann Letter, supra note 1, at 38-39. 7 and Hoffmann suggested, the term should not necessarily be read to include situations where the nature of the mission is limited (i.e., situations that do not "involve the full military engagements with which the Resolution is primarily concerned"10); where the exposure of U.S. forces is limited (e.g., situations involving "sporadic military or paramilitary attacks on our armed forces stationed abroad," in which the overall threat faced by our military is low11); and where the risk of escalation is therefore limited. Subsequently, the Executive Branch has reiterated the distinction between full military encounters and more constrained operations, stating that "intermittent military engagements" do not require withdrawal of forces under the Resolution"s 60-day rule.12 In the thirty-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings. The President was thus operating within this longstanding tradition of Executive Branch interpretation when he relied on these understandings in his legal explanation to Congress on June 15, 2011. In light of this historical practice, a combination of four factors present in Libya suggests that the current situation does not constitute the kind of "hostilities" envisioned by the War Powers Resolution"s 60-day automatic pullout provision. First, the mission is limited: By Presidential design, U.S. forces are playing a constrained and supporting role in a NATO-led multinational civilian protection operation, which is implementing a U.N. Security Council Resolution tailored to that limited purpose. This is a very 10 The quoted language comes from the Department of Justice, which in 1980 reaffirmed the Leigh-Hoffmann analysis. Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 194 (1980). 11 Id.; see also Letter from Assistant Secretary of State J. Edward Fox to Chairman Dante B. Fascell (Mar. 30, 1988) (stating that "hostilities" determination must be "based on all the facts and circumstances as they would relate to the threat to U.S. forces at the time" (emphasis added)). 12 Letter from Assistant Secretary of State for Legislative Affairs Wendy R. Sherman to Representative Benjamin Gilman, reprinted in 139 Cong. Rec. H7095 (daily ed. Sept. 28, 1993). 8 unusual set of circumstances, not found in any of the historic situations in which the "hostilities" question was previously debated, from the deployment of U.S. armed forces to Lebanon, Grenada, and El Salvador in the early 1980s, to the fighting with Iran in the Persian Gulf in the late 1980s, to the use of ground troops in Somalia in 1993. Of course, NATO forces as a whole are more deeply engaged in Libya than are U.S. forces, but the War Powers Resolution"s 60-day pullout provision was designed to address the activities of the latter.13 Second, the exposure of our armed forces is limited: To date, our operations have not involved U.S. casualties or a threat of significant U.S. casualties. Nor do our current operations involve active exchanges of fire with hostile forces, and members of our military have not been involved in significant armed confrontations or sustained confrontations of any kind with hostile forces.14 Prior administrations have not found the 60-day rule to apply even in situations where 13 A definitional section of the War Powers Resolution, 8(c), gives rise to a duty of Congressional notification, but not termination, upon the "assignment" of U.S. forces to command, coordinate, participate in the movement of, or accompany foreign forces that are themselves in hostilities. Section 8(c) is textually linked (through the term "introduction of United States Armed Forces") not to the "hostilities" language in section 4 that triggers the automatic pullout provision in section 5(b), but rather, to a different clause later down in that section that triggers a reporting requirement. According to the Senate report, the purpose of section 8(c) was "to prevent secret, unauthorized military support activities [such as the secret assignment of U.S. military ,,advisers" to South Vietnam and Laos] and to prevent a repetition of many of the most controversial and regrettable actions in Indochina," S. REP. NO. 93-220, at 24 (1973)--actions that scarcely resemble NATO operations such as this one. Indeed, absurd results could ensue if section 8(c) were read to trigger the 60-day clock, as that could require termination of the "assignment" of even a single member of the U.S. military to assist a foreign government force, unless Congress passed legislation to authorize that one-person assignment. Moreover, section 8(c) must be read together with the immediately preceding section of the Resolution, 8(b). By grandfathering in pre-existing "high-level military commands," section 8(b) not only shows that Congress knew how to reference NATO operations when it wanted to, but also suggests that Congress recognized that NATO operations are generally less likely to raise the kinds of policy concerns that animated the Resolution. If anything, the international framework of cooperation within which this military mission is taking place creates a far greater risk that by withdrawing prematurely from Libya, as opposed to staying the course, we would generate the very foreign policy problems that the War Powers Resolution was meant to counteract: for example, international condemnation and strained relationships with key allies. 14 The fact that the Defense Department has decided to provide extra "danger pay" to those U.S. service members who fly planes over Libya or serve on ships within 110 nautical miles of Libya"s shores does not mean that those service members are in "hostilities" for purposes of the War Powers Resolution. Similar danger pay is given to U.S. forces in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and dozens of other countries in which no one is seriously contending that "hostilities" are occurring under the War Powers Resolution. 9 significant fighting plainly did occur, as in Lebanon and Grenada in 1983 and Somalia in 1993.15 By highlighting this point, we in no way advocate a legal theory that is indifferent to the loss of non-American lives. But here, there can be little doubt that the greatest threat to Libyan civilians comes not from NATO or the United States military, but from Qadhafi. The Congress that adopted the War Powers Resolution was principally concerned with the safety of U.S. forces,16 and with the risk that the President would entangle them in an overseas conflict from which they could not readily be extricated. In this instance, the absence of U.S. ground troops, among other features of the Libya operation, significantly reduces both the risk to U.S. forces and the likelihood of a protracted entanglement that Congress may find itself practically powerless to end.17 15 In Lebanon, the Reagan Administration argued that U.S. armed forces were not in "hostilities," though there were roughly 1,600 U.S. marines equipped for combat on a daily basis and roughly 2,000 more on ships and bases nearby; U.S. marine positions were attacked repeatedly; and four marines were killed and several dozen wounded in those attacks. See Richard F. Grimmett, Congressional Research Service, The War Powers Resolution: After Thirty Six Years 13-15 (Apr. 22, 2010); John H. Kelly, Lebanon: 1982-1984, in U.S. AND RUSSIAN POLICYMAKING WITH RESPECT TO THE USE OF FORCE 85, 96-99 (Jeremy R. Azrael & Emily A. Payin eds., 1996). In Grenada, the Administration did not acknowledge that "hostilities" had begun under the War Powers Resolution after 1,900 members of the U.S. armed forces had landed on the island, leading to combat that claimed the lives of nearly twenty Americans and wounded nearly 100 more. See Grimmett, supra, at 15; Ben Bradlee, Jr., A Chronology on Grenada, BOSTON GLOBE, Nov. 6, 1983. In Somalia, 25,000 troops were initially dispatched by the President, without Congressional authorization and without reference to the War Powers Resolution, as part of Operation Restore Hope. See Grimmett, supra, at 27. By May 1993, several thousand U.S. forces remained in the country or on ships offshore, including a Quick Reaction Force of some 1,300 marines. During the summer and into the fall of that year, ground combat led to the deaths of more than two dozen U.S. soldiers. JOHN L. HIRSCH & ROBERT B. OAKLEY, SOMALIA AND OPERATION RESTORE HOPE: REFLECTIONS ON PEACEMAKING AND PEACEKEEPING 112, 12427 (1995). 16 The text of the statute supports this widely held understanding, by linking the pullout provision to the "introduction" of United States Armed Forces "into hostilities," suggesting that its primary focus is on the dangers confronted by members of our own military when deployed abroad into threatening circumstances. Section 5(c), by contrast, refers to United States Armed Forces who are "engaged in hostilities." 17 Cf. Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982) ("The War Powers Resolution, which was considered and enacted as the Vietnam war was coming to an end, was intended to prevent another situation in which a President could gradually build up American involvement in a foreign war without congressional knowledge or approval, eventually presenting Congress with a full-blown undeclared war which on a practical level it was powerless to stop."). 10 Third, the risk of escalation is limited: U.S. military operations have not involved the presence of U.S. ground troops, or any significant chance of escalation into a broader conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or expanding geographical scope. Contrast this with the 1991 Desert Storm operation, which although also authorized by a United Nations Security Council Resolution, presented "over 400,000 [U.S.] troops in the area--the same order of magnitude as Vietnam at its peak--together with concomitant numbers of ships, planes, and tanks."18 Prior administrations have found an absence of "hostilities" under the War Powers Resolution in situations ranging from Lebanon to Central America to Somalia to the Persian Gulf tanker controversy, although members of the United States Armed Forces were repeatedly engaged by the other side"s forces and sustained casualties in volatile geopolitical circumstances, in some cases running a greater risk of possible escalation than here.19 Fourth and finally, the military means we are using are limited: This situation does not present the kind of "full military engagement[] with which the [War Powers] Resolution is primarily concerned."20 The violence that U.S. armed forces have directly inflicted or facilitated after the handoff to NATO has been modest in terms of its frequency, intensity, and severity. The air-to-ground strikes conducted by the United States in Libya are a far cry from the bombing campaign waged in Kosovo in 1999, which involved much more extensive and aggressive aerial 18 JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 50 (1993). 19 For example, in the Persian Gulf in 1987-88, the Reagan Administration found the War Powers Resolution"s pullout provision inapplicable to a reflagging program that was conducted in the shadow of the Iran-Iraq war; that was preceded by an accidental attack on a U.S. Navy ship that killed 37 crewmen; and that led to repeated instances of active combat with Iranian forces. See Grimmett, supra note 15, at 16-18. 20 Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 194 (1980). 11 strike operations led by U.S. armed forces.21 The U.S. contribution to NATO is likewise far smaller than it was in the Balkans in the mid-1990s, where U.S. forces contributed the vast majority of aircraft and air strike sorties to an operation that lasted over two and a half years, featured repeated violations of the no-fly zone and episodic firefights with Serb aircraft and gunners, and paved the way for approximately 20,000 U.S. ground troops.22 Here, by contrast, the bulk of U.S. contributions to the NATO effort has been providing intelligence capabilities and refueling assets. A very significant majority of the overall sorties are being flown by our coalition partners, and the overwhelming majority of strike sorties are being flown by our partners. American strikes have been confined, on an as-needed basis, to the suppression of enemy air defenses to enforce the no-fly zone, and to limited strikes by Predator unmanned aerial vehicles against discrete targets in support of the civilian protection mission; since the handoff to NATO, the total number of U.S. munitions dropped has been a tiny fraction of the number dropped in Kosovo. All NATO targets, moreover, have been clearly linked to the Qadhafi regime"s systematic attacks on the Libyan population and populated areas, with target sets engaged only when strictly necessary and with maximal precision. Had any of these elements been absent in Libya, or present in different degrees, a different legal conclusion might have been drawn. But the unusual confluence of these four 21 In Kosovo, the NATO alliance set broader goals for its military mission and conducted a 78-day bombing campaign that involved more than 14,000 strike sorties, in which the United States provided two-thirds of the aircraft and delivered over 23,000 weapons. The NATO bombing campaign coincided with intensified fighting on the ground, and NATO forces, led by U.S. forces, "flew mission after mission into antiaircraft fire and in the face of over 700 missiles fired by Yugoslav air defense forces." Hearing Before the S. Armed Servs. Comm., 106th Cong. (1999) (statement of Gen. Wesley Clark, Admiral James Ellis, Jr. & Lt. Gen. Michael Short). 22 See Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327 (1995); Dean Simmons et al., U.S. Naval Institute, Air Operations over Bosnia, PROCEEDINGS MAGAZINE, May 1997, available at http://www.usni.org/magazines/proceedings/1997-05/air-operations-over-bosnia; NATO Fact Sheet, Operation Deny Flight (July 18, 2003), http://www.afsouth.nato.int/archives/operations/DenyFlight/DenyFlightFactSheet.htm. U.S. air operations over Bosnia "were among the largest scale military operations other than war conducted by U.S. forces since the end of the Cold War." Simmons et al., supra. 12 factors, in an operation that was expressly designed to be limited--limited in mission, exposure of U.S. troops, risk of escalation, and military means employed--led the President to conclude that the Libya operation did not fall within the War Powers Resolution"s automatic 60-day pullout rule. Nor is this action inconsistent with the spirit of the Resolution. Having studied this legislation for many years, I can confidently say that we are far from the core case that most Members of Congress had in mind in 1973. The Congress that passed the Resolution in that year had just been through a long, major, and searing war in Vietnam, with hundreds of thousands of boots on the ground, secret bombing campaigns, international condemnation, massive casualties, and no clear way out. In Libya, by contrast, we have been acting transparently and in close consultation with Congress for a brief period; with no casualties or ground troops; with international approval; and at the express request of and in cooperation with NATO, the Arab League, the Gulf Cooperation Council, and Libya"s own Transitional National Council. We should not read into the 1973 Congress"s adoption of what many have called a "No More Vietnams" resolution an intent to require the premature termination, nearly forty years later, of limited military force in support of an international coalition to prevent the resumption of atrocities in Libya. Given the limited risk of escalation, exchanges of fire, and U.S. casualties, we do not believe that the 1973 Congress intended that its Resolution be given such a rigid construction--absent a clear Congressional stance--to stop the President from directing supporting actions in a NATO-led, Security Council-authorized operation, for the narrow purpose of preventing the slaughter of innocent civilians.23 23 As President Obama noted in his June 22, 2011 speech on Afghanistan: "When innocents are being slaughtered and global security endangered, we don"t have to choose between standing idly by or acting on our own. Instead, we must rally international action, which we"re doing in Libya, where we do not have a single soldier on the ground, 13 Nor are we in a "war" for purposes of Article I of the Constitution. As the Office of Legal Counsel concluded in its April 1, 2011 opinion,24 under longstanding precedent the President had the constitutional authority to direct the use of force in Libya, for two main reasons. First, he could reasonably determine that U.S. operations in Libya would serve important national interests in preserving regional stability and supporting the credibility and effectiveness of the U.N. Security Council. Second, the military operations that the President anticipated ordering were not sufficiently extensive in "nature, scope, and duration" to constitute a "war" requiring prior specific Congressional approval under the Declaration of War Clause. Although time has passed, the nature and scope of our operations have not evolved in a manner that would alter that conclusion. To the contrary, since the transfer to NATO command, the U.S. role in the mission has become even more limited. Reasonable minds may read the Constitution and the War Powers Resolution differently--as they have for decades. Scholars will certainly go on debating this issue. But that should not distract those of us in government from the most urgent question now facing us, which is not one of law but of policy: Will Congress provide its support for NATO"s mission in Libya at this pivotal juncture, ensuring that Qadhafi does not regain the upper hand against the people of Libya? The President has repeatedly stated that it is better to take military action, even in limited scenarios such as this, with strong Congressional engagement and support. However we construe the War Powers Resolution, we can all agree that it serves only Qadhafi"s interest for the United States to withdraw from this NATO operation before it is finished. but are supporting allies in protecting the Libyan people and giving them the chance to determine their own destiny." 24 Office of Legal Counsel, U.S. Dep"t of Justice, President's Authority to Use Military Force in Libya, http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf (Apr. 1, 2011). 14 That is why, in closing, we ask all of you to take quick and decisive action to approve S.J. Res. 20, the bipartisan resolution introduced by Senators Kerry, McCain, Durbin, Cardin, and seven others to provide express Congressional authorization for continued, constrained operations in Libya to enforce U.N. Security Council Resolution 1973. Only by so doing, can this body affirm that the United States government is united in its commitment to support the NATO alliance, the safety and stability of this pivotal region, and the aspirations of the Libyan people for political reform and self-government. Thank you. I look forward to answering your questions. S. HRG. 112-89 LIBYA AND WAR POWERS HEARING BEFORE THE COMMITTEE ON FOREIGN RELATIONS UNITED STATES SENATE ONE HUNDRED TWELFTH CONGRESS FIRST SESSION JUNE 28, 2011 Printed for the use of the Committee on Foreign Relations ( Available via the World Wide Web: http://www.gpo.gov/fdsys/ U.S. GOVERNMENT PRINTING OFFICE WASHINGTON 68-241 PDF : 2011 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z COMMITTEE ON FOREIGN RELATIONS JOHN F. KERRY, Massachusetts, Chairman BARBARA BOXER, California RICHARD G. LUGAR, Indiana ROBERT MENENDEZ, New Jersey BOB CORKER, Tennessee BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho ROBERT P. CASEY, JR., Pennsylvania MARCO RUBIO, Florida JIM WEBB, Virginia JAMES M. INHOFE, Oklahoma JEANNE SHAHEEN, New Hampshire JIM DEMINT, South Carolina JOHNNY ISAKSON, Georgia CHRISTOPHER A. COONS, Delaware JOHN BARRASSO, Wyoming RICHARD J. DURBIN, Illinois MIKE LEE, Utah TOM UDALL, New Mexico FRANK G. LOWENSTEIN, Staff Director KENNETH A. MYERS, JR., Republican Staff Director (II) VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z CONTENTS Page Fisher, Louis, Scholar in Residence, The Constitution Project, Silver Spring, MD ......................................................................................................................... Prepared statement .......................................................................................... Kerry, Hon. John F., U.S. Senator from Massachusetts, opening statement ..... Koh, Hon. Harold, Legal Adviser, U.S. Department of State, Washington, DC .......................................................................................................................... Prepared statement .......................................................................................... Responses to questions submitted for the record by Senator Richard G. Lugar ......................................................................................................... Responses to questions submitted for the record by Senator James E. Risch ............................................................................................................... Lugar, Hon. Richard G., U.S. Senator from Indiana, opening statement ........... Spiro, Peter, Charles R. Weiner Professor of Law, Temple University, Easley School of Law, Philadelphia, PA ......................................................................... Prepared statement .......................................................................................... 40 42 1 7 11 53 58 4 48 50 (III) VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z LIBYA AND WAR POWERS TUESDAY, JUNE 28, 2011 U.S. SENATE, FOREIGN RELATIONS, Washington, DC. The committee met, pursuant to notice, at 10:07 a.m., in room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry (chairman of the committee) presiding. Present: Senators Kerry, Casey, Webb, Shaheen, Coons, Lugar, Corker, Risch, Isakson, Barrasso, and Lee. COMMITTEE ON OPENING STATEMENT OF HON. JOHN F. KERRY, U.S. SENATOR FROM MASSACHUSETTS The CHAIRMAN. The hearing will come to order. Thank you very much for being here this morning. I apologize for starting a few minutes late. We are here this morning to further examine an issue that we have been debating since the War Powers Resolution was passed. I think this is a debate of decades now since the 1970s, and certainly it has been debated over the course of the last weeks with respect to the War Powers Resolution and its role in America's use of force in Libya. I want to thank all of my colleagues for the very constructive manner in which we have conducted that discussion over these past weeks, and this afternoon the committee will meet again--and I would ask all of the members who are here, as you run into other members, if we can begin that meeting punctually. I think there is a fair amount of business and it is obviously important business. We want to try to consider it as expeditiously as possible, and that is with respect to the proposed resolution regarding the limited operations in support of the NATO mission in Libya. It is my personal firm belief that America's values and interests compelled us to join other nations in establishing the no-fly zone over Libya. By keeping Qadhafi's most potent weapons out of the fight, I am positively convinced--and I would reiterate that 2 days ago Senator McCain and I were in Cairo meeting with General Tantawi and others, and they affirmed the conviction that the actions of the United Nations with respect to the no-fly zone, indeed, saved many thousands of people from being massacred by Qadhafi. There is no question in my mind about that. We also sent a message about something that matters to the American people as a matter of our values and that is about whether or not leaders should be permitted willy-nilly to turn their (1) VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 2 armies on their own citizens, the citizens they are supposed to serve and protect. I have made clear my belief that the 60-day restriction contained in the War Powers Resolution does not apply in this situation, particularly since we handed the operations over to NATO. But some people, obviously, can draw different interpretations and will. And we will have a good discussion about that today. It is important, in my judgment, to remember that the War Powers Resolution was a direct reaction to a particular kind of a war, to a particular set of events, the Vietnam war, which at that time was the longest conflict in our history and which resulted, without any declaration in war, in the loss of over 58,000 American lives, spanning three administrations. And during those three administrations, Congress never declared war or, I might add, authorized it. They funded but there was no formal authorization. Now, understandably Congress after that wanted to ensure that in the future it would have an opportunity to assert its constitutional prerogatives, which I do agree with and do believe in when America sends its soldiers abroad. But our involvement in Libya is, obviously, clearly different from our fight in Vietnam. It is a very limited operation, and the War Powers Resolution applies to the use of armed forces in--and here I quote--''hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances,'' referring to American Armed Forces. But for 40 years, Presidents have taken the view that this language does not include every single military operation. Presidents from both parties have undertaken military operations without express authorization from Congress. I will emphasize, particularly for my friends, that does not make it right, and I am not suggesting that it does. It still begs the analysis each time of whether or not it fits a particular situation. But certainly Panama, Grenada, Haiti, Bosnia, Kosovo, Lebanon--I mean, the list is long where Presidents have deemed it necessary to take a particular action. In some cases, those actions ended in less than 60 days, but in a number of them and some of the most recent and prominent ones, they went well beyond the 60 days. In fact, on one occasion, I believe Lebanon, Congress actually authorized action a year later. We have never amended the War Powers Resolution, and we have never amended the resolution in terms of this particular authorization that came through the United Nations. The Ford administration, for example, defined ''hostilities'' only as those situations where U.S. troops were exchanging fire with hostile forces. And subsequent administrations, Republican and Democrat alike, built on that interpretation. But in Libya today no American is being shot at. No American troops are on the ground, and we are not going to put them there. It is true, of course, that the War Powers Resolution was not drafted with drones in mind. As our military technology becomes more and more advanced, it may well be that the language that I just read needs further clarification. Maybe it is up to us now to redefine it in the context of this more modern and changed warfare and threat. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 3 I certainly recognize that there can be very reasonable differences of opinion on this point as it applies to Libya today. So I am glad we are having this hearing. I think it is important. Many of us have met with members of the Libyan opposition, and I know Senators are eager to get to know them better and to learn about their plans and goals. I see this morning we are joined here by Ali Aujali. He was Libya's Ambassador to the United States but he resigned during the uprising and is now the diplomatic representative of the Transitional National Council which only recently Germany moved, Angela Merkel, moved to actually recognize. Like Ambassador Aujali, we would all like to see a brighter future for Libya, and that is why, when it comes to America's involvement, we need to look beyond the definition of hostilities to the bigger picture. A Senate resolution authorizing the limited use of force in Libya will, I think, show the world, in particular Muammar Qadhafi, at a time when most people make a judgment that the noose is tightening, the vice is squeezing, the opposition is advancing, the regime is under enormous pressure, that Congress and the President are committed to this critical endeavor. The United States is always strongest when we speak with one strong voice on foreign policy, and that is why I hope this afternoon we could find our way to an agreement on a bipartisan resolution. Endorsing our supporting role in this conflict, also sends a message to our allies and NATO. Secretary Gates, prior to departing in recent days, made a very strong speech about NATO, the need for NATO to do more. The fact is NATO is doing more in this effort, and they are in the lead on this effort. And we have asked in the past for the alliance to take the lead in many conflicts, and too often they have declined. In this case, they have stepped up, and I believe that for us to, all of a sudden, turn on our own words and hopes and urgings of the last years and pull the rug out from under them would have far-reaching consequences. With that said, it is a great pleasure for me to welcome here Harold Koh, the State Department's Legal Adviser. He is an extremely distinguished scholar of constitutional law and international law. He has a long career of service in the Government, as well as in academia. We had also, I might add, invited some witnesses from the Pentagon and the Department of Justice to testify this morning, but they declined to appear. On the second panel, we have two witnesses. Louis Fisher is Scholar in Residence at The Constitution Project, and he previously worked for 4 decades at the Library of Congress as the senior specialist in separation of powers and as a specialist in constitutional law. And Professor Spiro is the Charles R. Weiner Professor of Law at Temple University, and he has served in the State Department and on the National Security Council staff and has written extensively on foreign relations law of the United States. So we appreciate all of our witnesses taking time to be here today. Senator Lugar. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 4 OPENING STATEMENT OF HON. RICHARD G. LUGAR, U.S. SENATOR FROM INDIANA Senator LUGAR. Well, thank you very much, Mr. Chairman, for calling this meeting to consider the legal and constitutional basis for ongoing United States military operations in Libya. The President declined to seek congressional authorization before initiating hostilities. Subsequently he has carried them out for more than 3 months without seeking or receiving congressional authorization. This state of affairs is at odds with the Constitution, and it is at odds with the President's own pronouncements on war powers during his Presidential candidacy. For example, in December 2007, he responded to a Boston Globe question by saying ''The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the Nation.'' Before our discussion turns to constitutional and legal issues, I believe it is important to make a more fundamental point. Even if one believes the President somehow had the legal authority to initiate and continue United States military operations in Libya, it does not mean that going to war without Congress was either wise or helpful to the operation. The vast majority of Members of Congress, constitutional scholars, and military authorities would endorse the view that Presidents should seek congressional authorization for war when circumstances allow. There is a near uniformity of opinion that the chances for success in a war are enhanced by the unity, clarity of mission, and constitutional certainty that such an authorization and debate provide. There was no good reason why President Obama should have failed to seek congressional authorization to go to war in Libya. A few excuses have been offered, ranging from an impending congressional recess, to the authority provided by a U.N. Security Council resolution. But these excuses do not justify the President's lack of constitutional discipline. Twelve days before the United States launched hostilities, I called for the President to seek a declaration of war before taking military action. The Arab League resolution, which is cited as a key event in calculations on the war, was passed a full week before we started launching cruise missiles. There was time to seek congressional approval, and Congress would have debated a war resolution if the President had presented one. This debate would not have been easy. But Presidents should not be able to avoid constitutional responsibilities merely because engaging the people's representatives is inconvenient or uncertain. If the outcome of a congressional vote on war is in doubt, it is all the more reason why a President should seek a debate. If he does not, he is taking the extraordinary position that his plans for war are too important to be upset by a disapproving vote in Congress. The Founders believed that Presidents alone should not be trusted with warmaking authority, and they constructed checks against executive unilateralism. James Madison, in a 1797 letter to Thomas Jefferson, stated ''The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 5 has accordingly with studied care, vested the question of war in the legislature.'' Clearly, there are circumstances under which a President might be justified in employing military force without congressional authorization. But as Senator Webb has pointed out systematically, none of the reasons apply to the Libyan case. Our country was not attacked or threatened with an attack. We were not obligated under a treaty to defend the Libyan people. We were not rescuing Americans or launching a one-time punitive retaliation. Nor did the operation require surprise that would have made a public debate impractical. In this case, President Obama made a deliberate decision not to seek a congressional authorization of his action, either before it commenced or during the last 3 months. This was a fundamental failure of leadership that placed expedience above constitutional responsibility. Now, some will say that President Obama is not the first President to employ American forces overseas in controversial circumstances without a congressional authorization. But saying that Presidents have exceeded their constitutional authority before is little comfort. Moreover, the highly dubious arguments offered by the Obama administration for not needing congressional approval break new ground in justifying a unilateral Presidential decision to use force. The accrual of even more warmaking authority in the hands of the Executive is not in our country's best interest, especially at a time when our Nation is deeply in debt and our military is heavily committed overseas. At the outset of this conflict, the President asserted that U.S. military operations in Libya would be ''limited in their nature, duration, and scope.'' On this basis, the administration asserted that the actions did not require a declaration of war. Three months later, these assurances ring hollow. American and coalition military activities have expanded to an all but declared campaign to drive Qadhafi from power. The administration is unable to specify any applicable limits to the duration of the operations. And the scope has grown from efforts to protect civilians under imminent threat to obliterating Libya's military arsenal, command and control structure, and leadership apparatus. Most recently, the administration has sought to avoid its obligations under the War Powers Resolution by making the incredible assertion that U.S. military operations in Libya do not constitute hostilities. Even some prominent supporters of the war have refused to accept this claim. The administration's own description of the operations in Libya underscores the fallacy of this position. United States war planes have reportedly struck Libya air defenses some 60 times since NATO assumed the lead role in the Libya campaign. Predator drones reportedly have fired missiles on some 30 occasions. Most significantly, the broader range of airstrikes being carried out by other NATO forces depend on the essential support functions provided by the United States. The War Powers Resolution required the President to terminate the introduction of U.S. forces into hostilities in Libya on May 20, 60 days after he notified Congress of the commencement of the VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 6 operation. The administration declined to offer any explanation of its view that United States Forces were not engaged in hostilities in Libya until nearly a month later on June 15. Even at that point, the administration's explanation was limited to four perfunctory sentences in a 32-page report on the Libyan operations. Administration analysis focuses on the question of whether U.S. casualties are likely to occur, thereby minimizing other considerations relevant to the use of force. If this definition of hostilities were accepted, Presidents would have significant scope to conduct warfare through remote means such as missiles and drones. It would deny Congress a say in other questions implicated in decisions to go to war, including the war's impact on U.S. strategic interests, on our relations with other countries, and on our ability to meet competing national security priorities. The administration's report also implies that because allied nations are flying most of the missions over Libya, the United States operations are not significant enough to require congressional authorization. This characterization underplays the centrality of the United States contributions to the NATO operations in Libya. We are contributing 70 percent of the coalition's intelligence capabilities and the majority of its refueling assets. The fact that we are leaving most of the shooting to other countries does not mean the United States is not involved in acts of war. If the United States encountered persons performing similar activities in support of al-Qaeda or Taliban operations, we certainly would deem them to be participating in hostilities against us. Moreover, the language of the War Powers Resolution clearly encompasses the kinds of operations U.S. military forces are performing in support of other NATO countries. These concerns are compounded by indications that the administration's legal position was the result of a disputed decision process. According to press reports, the President made the decision to adopt this position without the Department of Justice having the opportunity to develop a unified legal opinion. It is regrettable that the administration has refused our requests to make witnesses from the Departments of Defense and Justice available for today's hearing. Finally, one would expect the administration to be fully forthcoming on consultations about Libya to compensate, in some measure, for the lack of congressional authorization for the war. Although consultations in no way substitute for formal authorization, a view corroborated in this legal scholarship today of Mr. Koh, they serve a vital purpose in unifying the Government and providing Congress with a basis for decisionmaking on the war. For the most part, for example, the Clinton administration and President Clinton himself consulted meaningfully with Congress during the United States intervention in the Balkans. In sharp contrast, the Obama administration's efforts to consult with Congress have been perfunctory, incomplete, and dismissive of reasonable requests. This committee alone has experienced at least three occasions when briefings were canceled or relevant witnesses were denied without explanation. As Senator Corker has pointed out, very basic questions about the operation have gone unanswered. Deputy Secretary of State Steinberg declined to address VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 7 certain questions on the basis they could only be answered by the military, and yet the administration has refused to provide the committee with Defense Department witnesses. This inexplicable behavior contributes to the damage that the Libya precedent might create in the future. I do not doubt that President Obama elected to launch this war because of altruistic impulses. But that does not make the United States intervention in Libya any less of a war of election. Nor does the fig leaf that American pilots are flying a minority of the missions within the coalition justify the contention we are not engaged in hostilities, especially since United States participation enables most of the operations underway. The President does not have the authority to substitute his judgment for constitutional process when there is no emergency that threatens the United States and our vital interests. The world is full of examples of local and regional violence, to which the United States military could be applied for some altruistic purpose. Under the Constitution, the Congress is vested with the authority to determine which, if any, of these circumstances justify the consequences of American military intervention. I thank the chairman for the opportunity to make this statement. The CHAIRMAN. Thank you very much. So there, legal counsel, there you have it, sir. The stage is set, two differing views reflecting over 50 years of service on this committee, and we are still not sure what the answer is. So your task this morning is an interesting one, and I think we will not only have a good dialogue, but maybe it will be fun. Have at it. You are on. STATEMENT OF HON. HAROLD KOH, LEGAL ADVISER, U.S. DEPARTMENT OF STATE, WASHINGTON, DC Mr. KOH. Thank you, Mr. Chairman, Senator Lugar, members of the committee, for this important hearing. It is good to be back before you. Like past legal advisers, I am honored to appear to explain the administration's legal position on the war powers. I have submitted detailed testimony, which you have before you, which reviews the brutality visited by Qadhafi on the people of Libya and the urgent but restrained steps this administration has taken to stop it as part of a supporting role within a NATO-led, Security Council-authorized civilian protection mission that is limited with respect to design, exposure of U.S. troops, risk of escalation, and choice of military means. Today let me make three points. First, this administration is acting lawfully, consistent with both the letter and spirit of the Constitution and the War Powers Resolution. Contrary to what some have claimed, we are not asserting sweeping constitutional power to bypass Congress. The President has never claimed the authority to take the Nation to war without congressional authorization. He has never claimed authority to violate the War Powers Resolution or any other statute. He has not claimed the right to violate international law to use force abroad when doing so would not serve important national interests or to refuse to consult with Congress on important war powers issues. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 8 We recognize that Congress has powers to regulate and terminate uses of force and that the War Powers Resolution plays an important role in promoting interbranch dialogue. Indeed, my testimony today continues that dialogue which now includes more than 10 hearings, 30 briefings, and dozens of exchanges with Congress on these issues. From the start, we have sought to obey the law. I would not serve an administration that did not. The President reported to Congress, consistent with the War Powers Resolution, within 48 hours of commencing operations in Libya. He framed our military mission narrowly, directing among other things, that no ground troops would be deployed and that on April 4, U.S. forces would transition responsibility to NATO command, shifting to a constrained and supporting role within a multinational civilian protection mission. And from the outset, we noted that the situation in Libya does not constitute a war requiring specific congressional approval under the Declaration of War Clause of the Constitution. As my testimony notes on page 13, the President has constitutional authority, long recognized, to direct the use of force to serve important national interests and preserving regional stability and supporting the credibility and effectiveness of the U.N. Security Council. The nature, scope, and duration of the military operations he ordered here did not rise to the level of war for constitutional purposes. So my second point. We do not believe that the War Powers Resolution's 60-day automatic pullout provision applies to the limited Libya mission. As Senator Kerry quoted, absent express congressional authorization, the resolution directs the President to remove U.S. Armed Forces within 60 days from the date that hostilities or situations where imminent involvement in hostilities is clearly indicated. But as everyone recognizes, the legal trigger for the automatic pullout clock, ''hostilities'' is an ambiguous term of art that is defined nowhere in the statute. The legislative history, which we cite, makes clear there was no agreed-upon view of exactly what the term ''hostilities'' would encompass, nor has that standard ever been defined by any court or by Congress itself. From the start, legislators disagreed about the meaning of the term and the scope of the 60-day pullout rule and whether a particular set of facts constitutes hostilities for purposes of the resolution has been determined less by a narrow parsing of dictionary definitions than by interbranch practice. The Members of Congress who drafted the War Powers Resolution understood that this resolution is not like the Internal Revenue Code. Reading the War Powers Resolution should not be a mechanical exercise. The term ''hostilities'' was vague but they declined to give it more concrete meaning in part to avoid hampering future Presidents by making the resolution a one-size-fits-all straitjacket that would operate mechanically without regard to the facts. As my testimony recounts and as Senator Kerry has himself noted, there are various leaders of this Congress who have indicated that they do not believe that the United States military operations in Libya amount to the kind of hostilities envisioned by the VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 9 60-day pullout provision. We believe that view is correct and confirmed by historical practice. And the historical practice, which I summarize in my testimony, suggests that when U.S. forces engage in a limited military mission that involves limited exposure for U.S. troops and limited risk of serious escalation and employs limited military means, we are not in hostilities of the kind envisioned by the War Powers Resolution that was intended to trigger an automatic 60-day pullout. Let me say just a word about each of these four limitations. First, the nature of the mission is unusually limited. By Presidential design, U.S. forces are playing a constrained and supporting role in a NATO-led, multinational civilian protection mission charged with enforcing a Security Council resolution. This circumstance is virtually unique, not found in any of the recent historic situations in which the hostilities questions has been debated from the Iranian hostages crisis to El Salvador, to Lebanon, to Grenada, to the fighting with Iran in the Persian Gulf, or to the use of ground troops in Somalia. Second, the exposure of our Armed Forces is limited. From the transition date of March 31 forward, there have been no U.S. casualties, no threat of significant U.S. casualties, no active exchanges of fire with hostile forces, no significant armed confrontation or sustained confrontation of any kind with hostile forces. And as my testimony describes on page 9, past administrations have not found the 60-day rule to apply even in a situation where far more significant fighting plainly did occur such as in Lebanon and Grenada in 1983 and Somalia in 1993. Third, the risk of escalation here is limited. In contrast to the U.N.-authorized Desert Storm operation, which presented over 400,000 troops, the same order of magnitude as Vietnam at its peak, Libya has not involved any significant chance of escalation into a full-fledged conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or an expanding geographic scope. In this respect, Libya contrasts with other recent cases, Lebanon, Central America, Somalia, the Persian Gulf tanker controversy, discussed on page 10 of my testimony, where past administrations declined to find hostilities under the War Powers Resolution, even though United States Armed Forces were repeatedly engaged by other sides' forces and sustained significant casualties. And fourth and finally, Senators, we are using limited military means, not the kind of full military engagements with which the War Powers Resolution is primarily concerned. And there I quote from a statement by my predecessor, the legal adviser of 1975, in response to a request from the Congress about an incident during the Ford administration. The violence U.S. Armed Forces are directly inflicting or facilitating after the handoff to NATO has been modest in terms of its frequency, intensity, and severity. The air-to-ground strikes conducted by the United States are a far cry from the extensive aerial strike operations led by United States Armed Forces in Kosovo in 1999 or the NATO operations in the Balkans in the 1990s, to which the United States forces contributed the vast majority of aircraft and airstrike sorties. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 10 To be specific, the bulk of U.S. contributions has been providing intelligence capabilities and refueling assets to the NATO effort. A very significant majority of the overall sorties, 75 percent, are being flown by our coalition partners. The overwhelming majority of strike sorties, 90 percent, are being flown by our partners. American strikes have been limited on an as-needed basis to the suppression of enemy air defenses to enforce the no-fly zone and limited strikes by Predator unmanned aerial vehicles against discrete targets to support the civilian protection mission. By our best estimate, Senators, since the handoff to NATO, the total number of United States munitions dropped in Libya has been less than 1 percent of those dropped in Kosovo. Now, we acknowledge that had any of these elements been absent in Libya or present in different degrees, you could draw a different legal conclusion, but it was this unusual confluence of these four limitations, an operation that is limited in mission, limited in exposure, limited in risk of escalation, and limited in choice of military means, that led the President to conclude that the Libya operation did not fall under the automatic 60-day pullout rule. As Chairman Kerry suggested, we are far from the core case that most Members of Congress had in mind when they passed the resolution in 1973. They were concerned there about no more Vietnams. But given the limited military means, risk of escalation, exchanges of fire, and United States casualties, we do not believe that the 1973 Congress intended that its resolution should be construed so rigidly to stop the President from directing supporting action in a NATO-led, Security Council-authorized operation with international approval at the express request of NATO, the Arab League, the Gulf Cooperation Council, and Libya's own Transitional National Council for the narrow but urgent purpose of preventing the slaughter of innocent civilians in Libya. Third and finally, Senators, we fully recognize reasonable minds may read the resolution differently. That would not be a surprise. They have since their inception. Scholars have spent their entire careers debating these issues. These questions of interpretation are matters of important public debate. Reasonable minds can certainly differ. And we acknowledge that there were perhaps steps we should have taken or could have taken to foster better communication on these very difficult legal questions. But none of us believes that the best way forward now is for Qadhafi to prevail and to resume his attacks on his own people. Were the United States now to drop out of this collective civilian protection mission or to sharply curtail its contributions would not only compromise our international relationships and destabilize the region but would undo NATO's progress by permitting Qadhafi to return to brutal attacks on the very civilians whom our intervention has protected. However we may construe the War Powers Resolution, we can all agree it would only serve Qadhafi's interests for the United States to withdraw from this NATO operation before it is finished. And so the urgent question before you is not one of law but of policy. Will Congress provide its support for NATO's mission in Libya at this pivotal juncture, ensuring that Qadhafi does not regain the upper hand against the people of Libya? VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 11 And so in closing, I ask that you take quick and decisive action to approve Senate Joint Resolution 20, the bipartisan resolution introduced by Senators Kerry, McCain, Durbin, Cardin, and seven others of your colleagues to provide congressional authorization for continued operations in Libya to enforce the purposes of Security Council Resolution 1973. Only by so doing can this body affirm that the United States Government is united in its support of the NATO alliance and the aspirations of the Libyan people. Thank you, Senator, and I look forward to answering your questions. [The prepared statement of Mr. Koh follows:] PREPARED STATEMENT OF HAROLD HONGJU KOH Thank you, Mr. Chairman, Ranking Member Lugar, and members of the committee, for this opportunity to testify before you on Libya and war powers. By so doing, I continue nearly four decades of dialogue between Congress and Legal Advisers of the State Department, since the War Powers Resolution was enacted, regarding the executive branch's legal position on war powers.1 We believe that the President is acting lawfully in Libya, consistent with both the Constitution and the War Powers Resolution, as well as with international law.2 Our position is carefully limited to the facts of the present operation, supported by history, and respectful of both the letter of the resolution and the spirit of consultation and collaboration that underlies it. We recognize that our approach has been a matter of important public debate, and that reasonable minds can disagree. But surely none of us believes that the best result is for Qadhafi to wait NATO out, leaving the Libyan people again exposed to his brutality. Given that, we ask that you swiftly approve Senate Joint Resolution 20, the bipartisan measure recently introduced by 11 Senators, including 3 members of this committee.3 The best way to show a united front to Qadhafi, our NATO allies, and the Libyan people is for Congress now to authorize under that joint resolution continued, constrained operations in Libya to enforce United Nations Security Council Resolution 1973. As Secretary Clinton testified in March, the United States engagement in Libya followed the administration's strategy of ''using the combined assets of diplomacy, development, and defense to protect our interests and advance our values.'' 4 Faced with brutal attacks and explicit threats of further imminent attacks by Muammar Qadhafi against his own people,5 the United States and its international partners 1 In 1975, shortly after the enactment of the War Powers Resolution, Legal Adviser Monroe Leigh testified before Congress, and then responded to written questions, regarding the meaning and application of the resolution. See Letter from State Department Legal Adviser Monroe Leigh and Department of Defense General Counsel Martin R. Hoffmann to Chairman Clement J. Zablocki (June 5, 1975), reprinted in ''War Powers: A Test of Compliance Relative to the Danang Sealift, the Evacuation at Phnom Penh, the Evacuation of Saigon, and the Mayaguez Incident'': Hearings Before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, 94th Cong. (1975) [hereinafter ''1975 LeighHoffmann Letter'']. Subsequent Legal Advisers have carried on this tradition. See, e.g., ''War Powers Resolution'': Hearings Before the Senate Committee on Foreign Relations, 95th Cong. (1977) (testimony of Legal Adviser Herbert J. Hansell); ''War Powers, Libya, and State-Sponsored Terrorism'': Hearings Before the Subcommittee on Arms Control, Int'l Security and Science of the House Committee on Foreign Affairs, 99th Cong. (1986) (testimony of Legal Adviser Abraham D. Sofaer); ''H. Con. Res. 82, Directing the President to Remove Armed Forces From Operations Against Yugoslavia, and H.J. Res. 44, Declaring War Between the United States and Yugoslavia'': Markup Before the House Committee on Int'l Relations, 106th Cong. (1999) (testimony of Principal Deputy Legal Adviser Michael J. Matheson). Cf. Legal Adviser Harold Hongju Koh, Statement Regarding the Use of Force in Libya, American Society of International Law Annual Meeting (Mar. 26, 2011) (discussing ''the historical practice of the Legal Adviser publicly explaining the legal basis for United States military actions that might occur in the international realm''). 2 For explanation of the lawfulness of our Libya actions under international law, see Koh, supra note 1. 3 S.J. Res. 20 (introduced by Senators Kerry, McCain, Levin, Kyl, Durbin, Feinstein, Graham, Lieberman, Blunt, Cardin, and Kirk). 4 Hearing on FY 2012 State Department Budget Before the Subcommittee on State, Foreign Operations, and Related Programs of the Senate Committee on Appropriations, 112th Cong. (Mar. 2, 2011). 5 Qadhafi's actions demonstrate his ongoing intent to suppress the democratic movement against him by lawlessly attacking Libyan civilians. On February 22, 2011, Qadhafi pledged on Continued VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 12 acted with unprecedented speed to secure a mandate, under Resolution 1973, to mobilize a broad coalition to protect civilians against attack by an advancing army and to establish a no-fly zone. In so doing, President Obama helped prevent an imminent massacre in Benghazi, protected critical U.S. interests in the region, and sent a strong message to the people not just of Libya--but of the entire Middle East and North Africa--that America stands with them at this historic moment of transition. From the start, the administration made clear its commitment to acting consistently with both the Constitution and the War Powers Resolution. The President submitted a report to Congress, consistent with the War Powers Resolution, within 48 hours of the commencement of operations in Libya. He framed our military mission narrowly, directing, among other things, that no ground troops would be deployed (except for necessary personnel recovery missions), and that U.S. Armed Forces would transition responsibility for leading and conducting the mission to an integrated NATO command. On April 4, 2011, U.S. forces did just that, shifting to a constrained and supporting role in a multinational civilian protection mission--in an action involving no U.S. ground presence or, to this point, U.S. casualties-- authorized by a carefully tailored U.N. Security Council Resolution. As the War Powers Resolution contemplates, the administration has consulted extensively with Congress about these operations, participating in more than 10 hearings, 30 briefings, and dozens of additional exchanges since March 1--an interbranch dialogue that my testimony today continues. This background underscores the limits to our legal claims. Throughout the Libya episode, the President has never claimed the authority to take the Nation to war without congressional authorization, to violate the War Powers Resolution or any other statute, to violate international law, to use force abroad when doing so would not serve important national interests, or to refuse to consult with Congress on important war powers issues. The administration recognizes that Congress has powers to regulate and terminate uses of force, and that the War Powers Resolution plays an important role in promoting interbranch dialogue and deliberation on these critical matters. The President has expressed his strong desire for congressional support, and we have been working actively with Congress to ensure enactment of appropriate legislation. Together with our NATO and Arab partners, we have made great progress in protecting Libya's civilian population, and we have isolated Qadhafi and set the stage for his departure. Although since early April we have confined our military involvement in Libya to a supporting role, the limited military assistance that we provide has been critical to the success of the mission, as has our political and diplomatic leadership. If the United States were to drop out of, or curtail its contributions to, this mission, it could not only compromise our international relationships and alliances and threaten regional instability, but also permit an emboldened and vengeful Qadhafi to return to attacking the very civilians whom our intervention has protected. Where, against this background, does the War Powers Resolution fit in? The legal debate has focused on the resolution's 60-day clock, which directs the President-- absent express congressional authorization (or the applicability of other limited exceptions) and following an initial 48-hour reporting period--to remove United States Armed Forces within 60 days from ''hostilities'' or ''situations where imminent inLibyan National Television to lead ''millions to purge Libya inch by inch, house by house, household by household, alley by alley, and individual by individual until I purify this land.'' He called his opponents ''rats,'' and said they would be executed. On March 17, 2011, in another televised address, Qadhafi promised, ''We will come house by house, room by room. . . . We will find you in your closets. And we will have no mercy and no pity.'' Qadhafi's widespread and systematic attacks against the civilian population led the United Nations Security Council, in Resolution 1970, to refer the situation in Libya to the Prosecutor of the International Criminal Court. The U.N. Human Rights Council's Commission of Inquiry into Libya subsequently concluded that since February, ''[human rights] violations and crimes have been committed in large part by the Government of Libya in accordance with the command and control system established by Colonel Qadhafi through the different military, para-military, security and popular forces that he has employed in pursuit of a systematic and widespread policy of repression against opponents of his regime and of his leadership.'' At this moment, Qadhafi's forces continue to fire indiscriminately at residential areas with shells and rockets. Defecting Qadhafi forces have recounted orders ''to show no mercy'' to prisoners, and some recent reports indicate that the Qadhafi regime has been using rape as a tool of war. See Secretary of State Hillary Rodham Clinton, Press Statement, Sexual Violence in Libya, the Middle East and North Africa (June 16, 2011), http:// www.state.gov/secretary/rm/2011/06/166369.htm. For all of these reasons, President Obama declared on March 26, ''[W]hen someone like Qadhafi threatens a bloodbath that could destabilize an entire region; and when the international community is prepared to come together to save thousands of lives--then it's in our national interest to act. And, it's our responsibility. This is one of those times.'' VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 13 volvement in hostilities is clearly indicated by the circumstances.'' But as virtually every lawyer recognizes, the operative term, ''hostilities,'' is an ambiguous standard, which is nowhere defined in the statute. Nor has this standard ever been defined by the courts or by Congress in any subsequent war powers legislation. Indeed, the legislative history of the resolution makes clear there was no fixed view on exactly what the term ''hostilities'' would encompass.6 Members of Congress understood that the term was vague, but specifically declined to give it more concrete meaning, in part to avoid unduly hampering future Presidents by making the resolution a ''one size fits all'' straitjacket that would operate mechanically, without regard to particular circumstances. From the start, lawyers and legislators have disagreed about the meaning of this term and the scope of the resolution's 60-day pullout rule. Application of these provisions often generates difficult issues of interpretation that must be addressed in light of a long history of military actions abroad, without guidance from the courts, involving a resolution passed by a Congress that could not have envisioned many of the operations in which the United States has since become engaged. Because the War Powers Resolution represented a broad compromise between competing views on the proper division of constitutional authorities, the question whether a particular set of facts constitutes ''hostilities'' for purposes of the resolution has been determined more by interbranch practice than by a narrow parsing of dictionary definitions. Both branches have recognized that different situations may call for different responses, and that an overly mechanical reading of the statute could lead to unintended automatic cutoffs of military involvement in cases where more flexibility is required. In the nearly 40 years since the resolution's enactment, successive administrations have thus started from the premise that the term ''hostilities'' is ''definable in a meaningful way only in the context of an actual set of facts.'' 7 And successive Congresses and Presidents have opted for a process through which the political branches have worked together to flesh out the law's meaning over time. By adopting this approach, the two branches have sought to avoid construing the statute mechanically, divorced from the realities that face them. In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of ''hostilities'' envisioned by the War Powers Resolution's 60-day pullout provision.8 The historical practice supports this view. In 1975, Congress expressly 6 When the resolution was first considered, one of its principal sponsors, Senator Jacob K. Javits, stated that ''[t]he bill . . . seeks to proceed in the kind of language which accepts a whole body of experience and precedent without endeavoring specifically to define it.'' ''War Powers Legislation'': Hearings on S. 731, S.J. Res. 18, and S.J. Res. 59 Before the Committee on Foreign Relations, 92d Cong. 28 (1971); see also id. (statement of Professor Henry Steele Commager) (agreeing with Senator Javits that ''there is peril in trying to be too exact in definitions,'' as ''[s]omething must be left to the judgment, the intelligence, the wisdom, of those in command of the Congress, and of the President as well''). Asked at a House of Representatives hearing whether the term ''hostilities'' was problematic because of ''the susceptibility of it to different interpretations,'' making this ''a very fuzzy area,'' Senator Javits acknowledged the vagueness of the term but suggested that it was a necessary feature of the legislation: ''There is no question about that, but that decision would be for the President to make. No one is trying to denude the President of authority.'' ''War Powers'': Hearings Before the Subcommittee on National Security Policy and Scientific Developments of the House Committee on Foreign Affairs, 93d Cong. 22 (1973). We recognize that the House report suggested that ''[t]he word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope,'' but the report provided no clear direction on what either term was understood to mean. H.R. Rept. No. 93-287, at 7 (1973); see also Lowry v. Reagan, 676 F. Supp. 333, 340 n.53 (1997) (finding that ''fixed legal standards were deliberately omitted from this statutory scheme,'' as ''the very absence of a definitional section in the [War Powers] resolution [was] coupled with debate suggesting that determinations of 'hostilities' were intended to be political decisions made by the President and Congress''). 7 1975 Leigh-Hoffmann Letter, supra note 1, at 38. 8 Both before and after May 20, 2011, the 60th day following the President's initial letter to Congress on operations in Libya, few Members of Congress asserted that our participation in the NATO mission would trigger or had triggered the War Powers Resolution's pullout provision. House Speaker Boehner stated on June 1, 2011, that ''[1]egally, [the Administration has] met the requirements of the War Powers Act.'' House Minority Leader Pelosi stated on June 16, 2011, that ''[t]he limited nature of this engagement allows the President to go forward,'' as ''the President has the authority he needs.'' Senate Majority Leader Reid stated on June 17, 2011, that ''[t]he War Powers Act has no application to what's going on in Libya.'' Senate Foreign Relations Committee Chairman Kerry stated on June 21, 2011, that ''I do not think our limited involvement rises to the level of hostilities defined by the War Powers Resolution,'' and on June 23, 2011, that ''[w]e have not introduced our armed forces into hostilities. No American is being shot at. No American troop is at risk of being shot down today. That is not what we're Continued VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 14 invited the executive branch to provide its best understanding of the term ''hostilities.'' My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the executive branch understands the term ''to mean a situation in which units of the U.S. Armed Forces are actively engaged in exchanges of fire with opposing units of hostile forces.'' 9 On the other hand, as Leigh and Hoffmann suggested, the term should not necessarily be read to include situations where the nature of the mission is limited (i.e., situations that do not ''involve the full military engagements with which the resolution is primarily concerned'' 10); where the exposure of U.S. forces is limited (e.g., situations involving ''sporadic military or paramilitary attacks on our Armed Forces stationed abroad,'' in which the overall threat faced by our military is low 11); and where the risk of escalation is therefore limited. Subsequently, the executive branch has reiterated the distinction between full military encounters and more constrained operations, stating that ''intermittent military engagements'' do not require withdrawal of forces under the resolution's 60-day rule.12 In the 36 years since Leigh and Hoffmann provided their analysis, the executive branch has repeatedly articulated and applied these foundational understandings. The President was thus operating within this longstanding tradition of executive branch interpretation when he relied on these understandings in his legal explanation to Congress on June 15, 2011 In light of this historical practice, a combination of four factors present in Libya suggests that the current situation does not constitute the kind of ''hostilities'' envisioned by the War Powers Resolution's 60-day automatic pullout provision. First, the mission is limited: By Presidential design, U.S. forces are playing a constrained and supporting role in a NATO-led multinational civilian protection operation, which is implementing a U.N. Security Council resolution tailored to that limited purpose. This is a very unusual set of circumstances, not found in any of the historic situations in which the ''hostilities'' question was previously debated, from the deployment of U.S. Armed Forces to Lebanon, Grenada, and El Salvador in the early 1980s, to the fighting with Iran in the Persian Gulf in the late 1980s, to the use of ground troops in Somalia in 1993. Of course, NATO forces as a whole are more deeply engaged in Libya than are U.S. forces, but the War Powers Resolution's 60-day pullout provision was designed to address the activities of the latter.13 Second, the exposure of our Armed Forces is limited: To date, our operations have not involved U.S. casualties or a threat of significant U.S. casualties. Nor do our current operations involve active exchanges of fire with hostile forces, and members of our military have not been involved in significant armed confrontations or susdoing. We are refueling. We are supporting NATO.'' Since May 20, the basic facts regarding the limited nature of our mission in Libya have not materially changed. 9 1975 Leigh-Hoffmann Letter, supra note 1, at 38-39. 10 The quoted language comes from the Department of Justice, which in 1980 reaffirmed the Leigh-Hoffmann analysis. ''Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization,'' 4A Op. O.L.C. 185, 194 (1980). 11 Id.; see also Letter from Assistant Secretary of State J. Edward Fox to Chairman Dante B. Fascell (Mar. 30, 1988) (stating that ''hostilities'' determination must be ''based on all the facts and circumstances as they would relate to the threat to U.S. forces at the time'' (emphasis added)). 12 Letter from Assistant Secretary of State for Legislative Affairs Wendy R. Sherman to Representative Benjamin Gilman, reprinted in 139 Cong. Rec. H7095 (daily ed. Sept. 28, 1993). 13 A definitional section of the War Powers Resolution, 8(c), gives rise to a duty of congressional notification, but not termination, upon the ''assignment'' of U.S. forces to command, coordinate, participate in the movement of, or accompany foreign forces that are themselves in hostilities. Section 8(c) is textually linked (through the term ''introduction of United States Armed Forces'') not to the ''hostilities'' language in section 4 that triggers the automatic pullout provision in section 5(b), but rather, to a different clause later down in that section that triggers a reporting requirement. According to the Senate report, the purpose of section 8(c) was ''to prevent secret, unauthorized military support activities [such as the secret assignment of U.S. military 'advisers' to South Vietnam and Laos] and to prevent a repetition of many of the most controversial and regrettable actions in Indochina,'' S. Rept. No. 93-220, at 24 (1973) actions that scarcely resemble NATO operations such as this one. Indeed, absurd results could ensue if section 8(c) were read to trigger the 60-day clock, as that could require termination of the ''assignment'' of even a single member of the U.S. military to assist a foreign government force, unless Congress passed legislation to authorize that one-person assignment. Moreover, section 8(c) must be read together with the immediately preceding section of the resolution, 8(b). By grandfathering in preexisting ''high-level military commands,'' section 8(b) not only shows that Congress knew how to reference NATO operations when it wanted to, but also suggests that Congress recognized that NATO operations are generally less likely to raise the kinds of policy concerns that animated the resolution. If anything, the international framework of cooperation within which this military mission is taking place creates a far greater risk that by withdrawing prematurely from Libya, as opposed to staying the course, we would generate the very foreign policy problems that the War Powers Resolution was meant to counteract: for example, international condemnation and strained relationships with key allies. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 15 tained confrontations of any kind with hostile forces.14 Prior administrations have not found the 60-day rule to apply even in situations where significant fighting plainly did occur, as in Lebanon and Grenada in 1983 and Somalia in 1993.15 By highlighting this point, we in no way advocate a legal theory that is indifferent to the loss of non-American lives. But here, there can be little doubt that the greatest threat to Libyan civilians comes not from NATO or the United States military, but from Qadhafi. The Congress that adopted the War Powers Resolution was principally concerned with the safety of U.S. forces,16 and with the risk that the President would entangle them in an overseas conflict from which they could not readily be extricated. In this instance, the absence of U.S. ground troops, among other features of the Libya operation, significantly reduces both the risk to U.S. forces and the likelihood of a protracted entanglement that Congress may find itself practically powerless to end.17 Third, the risk of escalation is limited: U.S. military operations have not involved the presence of U.S. ground troops, or any significant chance of escalation into a broader conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or expanding geographical scope. Contrast this with the 1991 Desert Storm operation, which although also authorized by a United Nations Security Council resolution, presented ''over 400,000 [U.S.] troops in the area--the same order of magnitude as Vietnam at its peak--together with concomitant numbers of ships, planes, and tanks.'' 18 Prior administrations have found an absence of ''hostilities'' under the War Powers Resolution in situations ranging from Lebanon to Central America to Somalia to the Persian Gulf tanker controversy, although members of the United States Armed Forces were repeatedly engaged by the other side's forces and sustained casualties in volatile geopolitical circumstances, in some cases running a greater risk of possible escalation than here.19 Fourth and finally, the military means we are using are limited: This situation does not present the kind of ''full military engagement[] with which the [War Pow14 The fact that the Defense Department has decided to provide extra ''danger pay'' to those U.S. service members who fly planes over Libya or serve on ships within 110 nautical miles of Libya's shores does not mean that those service members are in ''hostilities'' for purposes of the War Powers Resolution. Similar danger pay is given to U.S. forces in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and dozens of other countries in which no one is seriously contending that ''hostilities'' are occurring under the War Powers Resolution. 15 In Lebanon, the Reagan administration argued that U.S. Armed Forces were not in ''hostilities,'' though there were roughly 1,600 U.S. marines equipped for combat on a daily basis and roughly 2,000 more on ships and bases nearby; U.S. marine positions were attacked repeatedly; and four marines were killed and several dozen wounded in those attacks. See Richard F. Grimmett, Congressional Research Service, ''The War Powers Resolution: After Thirty Six Years'' 13-15 (Apr. 22, 2010); John H. Kelly, Lebanon: 1982-1984, in ''U.S. and Russian Policymaking With Respect to the Use of Force'' 85, 96-99 (Jeremy R. Azrael & Emily A. Payin eds., 1996). In Grenada, the administration did not acknowledge that ''hostilities'' had begun under the War Powers Resolution after 1,900 members of the U.S. Armed Forces had landed on the island, leading to combat that claimed the lives of nearly 20 Americans and wounded nearly 100 more. See Grimmett, supra, at 15; Ben Bradlee, Jr., ''A Chronology on Grenada,'' Boston Globe, Nov. 6, 1983. In Somalia, 25,000 troops were initially dispatched by the President, without congressional authorization and without reference to the War Powers Resolution, as part of Operation Restore Hope. See Grimmett, supra, at 27. By May 1993, several thousand U.S. forces remained in the country or on ships offshore, including a Quick Reaction Force of some 1,300 marines. During the summer and into the fall of that year, ground combat led to the deaths of more than two dozen U.S. soldiers. John L. Hirsch & Robert B. Oakley, ''Somalia and Operation Restore Hope: Reflections on Peacemaking and Peacekeeping'' 112, 124-27 (1995). 16 The text of the statute supports this widely held understanding, by linking the pullout provision to the ''introduction'' of United States Armed Forces ''into hostilities,'' suggesting that its primary focus is on the dangers confronted by members of our own military when deployed abroad into threatening circumstances. section 5(c), by contrast, refers to United States Armed Forces who are ''engaged in hostilities.'' 17 Cf. Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982) (''The War Powers Resolution, which was considered and enacted as the Vietnam war was coming to an end, was intended to prevent another situation in which a President could gradually build up American involvement in a foreign war without congressional knowledge or approval, eventually presenting Congress with a full-blown undeclared war which on a practical level it was powerless to stop.''). 18 John Hart Ely ''War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath'' 50 (1993). 19 For example, in the Persian Gulf in 1987-88, the Reagan administration found the War Powers Resolution's pullout provision inapplicable to a reflagging program that was conducted in the shadow of the Iran-Iraq war; that was preceded by an accidental attack on a U.S. Navy ship that killed 37 crewmen; and that led to repeated instances of active combat with Iranian forces. See Grimmett, supra note 15, at 16-18. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 16 ers] resolution is primarily concerned.'' 20 The violence that U.S. Armed Forces have directly inflicted or facilitated after the handoff to NATO has been modest in terms of its frequency, intensity, and severity. The air-to-ground strikes conducted by the United States in Libya are a far cry from the bombing campaign waged in Kosovo in 1999, which involved much more extensive and aggressive aerial strike operations led by U.S. Armed Forces.21 The U.S. contribution to NATO is likewise far smaller than it was in the Balkans in the mid-1990s, where U.S. forces contributed the vast majority of aircraft and air strike sorties to an operation that lasted over 21/2 years, featured repeated violations of the no-fly zone and episodic firefights with Serb aircraft and gunners, and paved the way for approximately 20,000 U.S. ground troops.22 Here, by contrast, the bulk of U.S. contributions to the NATO effort has been providing intelligence capabilities and refueling assets. A very significant majority of the overall sorties are being flown by our coalition partners, and the overwhelming majority of strike sorties are being flown by our partners. American strikes have been confined, on an as-needed basis, to the suppression of enemy air defenses to enforce the no-fly zone, and to limited strikes by Predator unmanned aerial vehicles against discrete targets in support of the civilian protection mission; since the handoff to NATO, the total number of U.S. munitions dropped has been a tiny fraction of the number dropped in Kosovo. All NATO targets, moreover, have been clearly linked to the Qadhafi regime's systematic attacks on the Libyan population and populated areas, with target sets engaged only when strictly necessary and with maximal precision. Had any of these elements been absent in Libya, or present in different degrees, a different legal conclusion might have been drawn. But the unusual confluence of these four factors, in an operation that was expressly designed to be limited--limited in mission, exposure of U.S. troops, risk of escalation, and military means employed--led the President to conclude that the Libya operation did not fall within the War Powers Resolution's automatic 60-day pullout rule. Nor is this action inconsistent with the spirit of the resolution. Having studied this legislation for many years, I can confidently say that we are far from the core case that most Members of Congress had in mind in 1973. The Congress that passed the resolution in that year had just been through a long, major, and searing war in Vietnam, with hundreds of thousands of boots on the ground, secret bombing campaigns, international condemnation, massive casualties, and no clear way out. In Libya, by contrast, we have been acting transparently and in close consultation with Congress for a brief period; with no casualties or ground troops; with international approval; and at the express request of and in cooperation with NATO, the Arab League, the Gulf Cooperation Council, and Libya's own Transitional National Council. We should not read into the 1973 Congress' adoption of what many have called a ''No More Vietnams'' resolution an intent to require the premature termination, nearly 40 years later, of limited military force in support of an international coalition to prevent the resumption of atrocities in Libya. Given the limited risk of escalation, exchanges of fire, and U.S. casualties, we do not believe that the 1973 Congress intended that its resolution be given such a rigid construction--absent a clear congressional stance--to stop the President from directing supporting actions in a NATO-led, Security Council-authorized operation, for the narrow purpose of preventing the slaughter of innocent civilians.23 20 ''Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization,'' 4A Op. O.L.C. 185, 194 (1980). 21 In Kosovo, the NATO alliance set broader goals for its military mission and conducted a 78-day bombing campaign that involved more than 14,000 strike sorties, in which the United States provided two-thirds of the aircraft and delivered over 23,000 weapons. The NATO bombing campaign coincided with intensified fighting on the ground, and NATO forces, led by U.S. forces, ''flew mission after mission into antiaircraft fire and in the face of over 700 missiles fired by Yugoslav air defense forces.'' Hearing Before the S. Armed Servs. Comm., 106th Cong. (1999) (statement of Gen. Wesley Clark, Admiral James Ellis, Jr. & Lt. Gen. Michael Short). 22 See ''Proposed Deployment of United States Armed Forces into Bosnia,'' 19 Op. O.L.C. 327 (1995); Dean Simmons et al., U.S. Naval Institute, Air Operations over Bosnia, Proceedings Magazine, May 1997, available at http://www.usni.org/magazines/proceedings/1997-05/air-operations-over-bosnia; NATO Fact Sheet, Operation Deny Flight (July 18, 2003), http:// www.afsouth.nato.int/archives/operations/DenyFlight/DenyFlightFactSheet.htm. U.S. air operations over Bosnia ''were among the largest scale military operations other than war conducted by U.S. forces since the end of the cold war.'' Simmons et al., supra. 23 As President Obama noted in his June 22, 2011, speech on Afghanistan: ''When innocents are being slaughtered and global security endangered, we don't have to choose between standing idly by or acting on our own. Instead, we must rally international action, which we're doing in Libya, where we do not have a single soldier on the ground, but are supporting allies in protecting the Libyan people and giving them the chance to determine their own destiny.'' VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 17 Nor are we in a ''war'' for purposes of Article I of the Constitution. As the Office of Legal Counsel concluded in its April 1, 2011, opinion,24 under longstanding precedent the President had the constitutional authority to direct the use of force in Libya, for two main reasons. First, he could reasonably determine that U.S. operations in Libya would serve important national interests in preserving regional stability and supporting the credibility and effectiveness of the U.N. Security Council. Second, the military operations that the President anticipated ordering were not sufficiently extensive in ''nature, scope, and duration'' to constitute a ''war'' requiring prior specific congressional approval under the Declaration of War Clause. Although time has passed, the nature and scope of our operations have not evolved in a manner that would alter that conclusion. To the contrary, since the transfer to NATO command, the U.S. role in the mission has become even more limited. Reasonable minds may read the Constitution and the War Powers Resolution differently--as they have for decades. Scholars will certainly go on debating this issue. But that should not distract those of us in government from the most urgent question now facing us, which is not one of law but of policy: Will Congress provide its support for NATO's mission in Libya at this pivotal juncture, ensuring that Qadhafi does not regain the upper hand against the people of Libya? The President has repeatedly stated that it is better to take military action, even in limited scenarios such as this, with strong congressional engagement and support. However we construe the War Powers Resolution, we can all agree that it serves only Qadhafi's interest for the United States to withdraw from this NATO operation before it is finished. That is why, in closing, we ask all of you to take quick and decisive action to approve S.J. Res. 20, the bipartisan resolution introduced by Senators Kerry, McCain, Durbin, Cardin, and seven others to provide express congressional authorization for continued, constrained operations in Libya to enforce U.N. Security Council Resolution 1973. Only by so doing, can this body affirm that the United States Government is united in its commitment to support the NATO alliance, the safety and stability of this pivotal region, and the aspirations of the Libyan people for political reform and self-government. Thank you. I look forward to answering your questions. The CHAIRMAN. Thank you very much, Harold Koh. We appreciate the testimony enormously. I am going to reserve my time for such time as I may want to intervene with my questions, and I will turn to Senator Lugar to start. Senator LUGAR. Mr. Koh, one of the reasons why it is important to have this hearing and likewise debate on this issue is that throughout the Middle East, but even throughout the world, there are a number of situations in which the United States and other nations have severe disapproval of the governments of those countries. As a matter of fact, from time to time, we make speeches. We editorialize. We work with others in the United Nations to attempt to bring about conditions that are better for the people of countries that we believe are under a totalitarian or very authoritarian misrule. Now, in this particular instance, the Libyan situation arose following uprisings in Tunisia and Egypt, which certainly caught the attention of the United States and the world, quite apart from the Arab League and the United Nations and NATO. In the case of Libya, however, the Arab League and the United Nations and NATO and what have you and ultimately the United States made a decision to intervene in a civil war. There was shooting going on in Libya. It could very well be that persons who were innocent might be caught in the crossfire. This is the tragedy of civil wars, I suspect, wherever they may be held on this earth. 24 Office of Legal Counsel, U.S. Dep't of Justice, President's Authority to Use Military Force in Libya, http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf (Apr. 1, 2011). VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 18 In this particular instance, our decision was to intervene in a civil war, and we are continuing to intervene in a civil war. And despite the fact that we talk about limited hostilities, we also talk openly as a Government about the end of the Muammar Qadhafi rule, about the importance of Qadhafi leaving the country, and we even send out rumors that he may be entertaining such thoughts. My basic question is if we do not have some ground rules, the War Powers Act may be one area where we try to work this thing out or a more formal declaration of war. And this country could decide to intervene in numerous civil wars. It could decide really to affect the governance of peoples all over the world that we feel is unfair. What is your general comment about this predicament? In other words, you may feel very strongly that the Qadhafi rule is so egregiously out of line as opposed to all the other dictators that we have witnessed all over the earth that there is no doubt that we should intervene to prevent him from winning, to prevent him from shooting at people who may be opposing him and who may be shooting at him and his forces. What is the ground rule for dealing with civil war wherever we may find it all over the earth? Mr. KOH. Senator, thank you for that very thoughtful question. You have, over your career, been one of the most thoughtful defenders of the Constitution in foreign affairs. And I recognize the difference of view between what I have expressed and what you have expressed is from a good faith disagreement. I understand the concern that you have. But throughout the Middle East, there is only one situation in which there is a U.N. Security Council resolution narrowly drawn in which NATO has agreed to take command of the operation, in which the Arab League supported the operation, in which four Muslim countries were ready to join the coalition, have been flying flights, and in which the President was, as I have suggested, able to structure the mission so that it was of limited nature, so the United States would move very quickly into a limited supporting role, where there would be no ground troops so that there would be a limited exposure, where the risk of escalation would be low, and where the United States after the transition would narrow the means being employed so that only its unique capabilities could be used to prevent Qadhafi from using the tools of command and control to kill his own people. So that is a very unusual set of circumstances. And what we are saying is in that set of circumstances, the President acted lawfully in proceeding as he did. Now, the wisdom of proceeding in other countries is, obviously, a subject of substantial discussion. It would be complicated, I am sure, to replicate that unusually narrow set of facts. But I say this because I think that our theory and legal approach has been dramatically misunderstood. There is some suggestion that we are flouting the Constitution. In fact, we have made it clear that we are not challenging the constitutionality of the resolution. What we are arguing about is whether a very unusual situation fits within a resolution that has been on the books now for almost 40 years and which was designed to play a particular role and will have to be adapted to play that role effectively in this century. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 19 Senator LUGAR. Well, obviously, I raise the question because I fear that there may be circumstances in which we make a decision based upon the Security Council or somebody else to intervene in other situations. I would like our own war powers declaration to be clarified before we get to that point. I raise one more point, and this may require more hearings, and that is, although we say that the force that we are offering is limited--and this could include the missiles that we fire or drone strikes or what have you--my guess is that if another country were employing such methods against us without employing any troops on the ground in the United States or any of the so-called conventional means of war, we would see this as an act that was hostile. This would clearly be hostilities. Very clearly, we would say that is grounds for us to be at war with whoever is firing at us in these situations. This is why I think perhaps the administration needs to work with the Congress to try to think through in this era of drone warfare or long-distance warfare. That is not a question simply of whether American casualties occur or there are hostilities on the ground. A war in the future may be fought in an entirely different way, perhaps not encompassed by the War Powers Act, but surely needing to be encompassed by all of us who are thoughtful about the evolution of these hostilities. Mr. KOH. Well, Senator, you make two points. I was thinking this morning, as I was coming up here, that the first time I testified before the Senate on war powers issues was in January 1991 as Desert Shield was about to become Desert Storm. There was a U.N. Security Council resolution there. But the question was did you also need an authorization of use of military force. And my position there, which remains the same, is that in that circumstance, despite the fact of a multinational coalition authorized by a Security Council resolution, the proposal for 400,000 U.S. troops and comparable vessels and accompanying forces which was the number of forces in Vietnam at its height. So a U.N. Security Council resolution alone does not absolve a situation of requiring approval. What makes this situation unusual is not the existence of a Security Council resolution, but the fact that the mission that has been structured under it is so limited with the U.S. playing such a narrow and supporting role and with such limited exposure. We are talking about, as Senator Kerry said, no casualties, no threat of casualties, no significant armed engagements. Now, another point that has been made by some about our legal approach is that we are somehow suggesting that drones get a free pass under the War Powers Resolution. That is not at all what we are saying. But you make the key point which is when the statute talks about the introduction of U.S. Armed Forces into hostilities and what you are sending in is an unmanned aerial vehicle high in the sky, it is not clear that that provision was intended to apply to that particular weapon. Now, it does lead to the question of how to update the War Powers Resolution for modern conflict. There will be situations of cyber conflict and other kinds of modern technologies coming into play which Senators and Members of Congress never envisioned in VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 20 1973. So it may well be--and I think you make the point well-- that there was an effort here in the wake of Vietnam to draw a kind of framework statute that would allocate authorities, call for reporting, try to promote dialogue. That has existed for nearly 40 years. But many of the provisions, particularly the mechanical ones such as the automatic pullout provision, may turn out to be poorly suited for the current situation. Senator LUGAR. Thank you. The CHAIRMAN. Thank you, Senator Lugar. Senator Casey. Senator CASEY. Thanks very much. I wanted to pursue some of the same line of questioning, and I appreciate the fact that this is difficult as a matter of constitutional law but also difficult as a matter of policy and perception. I hear a lot from people in Pennsylvania that have real concerns about this policy not only on some of the constitutional debates we are having but just in terms of the clear impression that has been created that we are engaged in hostilities of one kind or another. It gets very difficult for people to separate from that perception. There are reports we know, at least according to the New York Times, that since this handoff took place, that United States warplanes have struck, according to this one report, 60 Libyan targets and, at the same time, unmanned drones, according to this report, fired at Libyan forces roughly 30 times. So in the context of that reporting, I would ask you about this broader question, I guess--or it is actually a more pointed question--as it relates to the administration's justification of armed drone attacks and so-called nonhostile operations. How do you get there just as a matter of law? Mr. KOH. Thank you, Senator. I appreciate again the thoughtfulness of the question, which I think is a very good one. In the early days of the Libyan action, as Secretary Gates described, the goal was to create a no-fly zone to prevent Qadhafi from attacking his own people. As we point out in footnote 5 of my testimony, Qadhafi appears to have rules of engagement that call for indiscriminate attacks on his own people, no mercy rules, rape as a weapon of war. These have led to both the commission of inquiry and yesterday an arrest warrant against him at the International Criminal Court. So the question of what kind of military mission to structure-- to respond--and the core of it was, first, the establishment of the no-fly zone, and then, second, for the United States to shift from a lead role into a support role. And the bulk of the contributions, as I have suggested, has been primarily intelligence, refueling, search and rescues, flyovers, and the like with no fire at all. But there are two elements that have been added to the picture. One is enemy air defenses. If Qadhafi's command and control existed and if initial efforts have been made to destroy that command and control and he shifts those operations to other command and control, he can replicate his capacity to kill civilians. And so to move from one and then stop is simply allowing Qadhafi in a game of Whac-A-Mole to return to the very acts that led to the intervention in the first place. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 21 That has been the basis of the notion that American strikes should be authorized on an as-needed basis to suppress enemy air defenses, to enforce the no-fly zone, and then the unique capabilities that American military forces have been requested by the NATO allies to hit particular discrete targets to support the civilian protection mission, particularly command and control or other kinds of antiaircraft which are difficult to reach by other means. Now, let me emphasize again some numbers that I gave earlier because I think they are important. In the overall number of sorties that have been flown, the United States is flying a quarter, but in the strike sorties that are being flown, the United States is flying only 10 percent. The Predator strikes, as you suggested, are a relatively small number. And the total number of munitions dropped by either manned or Predators at this moment, according to our best information, is less than 1 percent of the amount that was dropped in Kosovo, in which there was a substantial debate over the application of the War Powers Resolution. So you came back to the question, are we engaged in hostilities? This is, as I said, not a parsing of dictionary terms. It is a statutory provision. Congress passes provisions all the time that have terms of art like ''emergency.'' The word ''treaty'' in one statute was recently read to mean ''executive agreement.'' I am sure the Foreign Relations Committee might have some questions about that, but that is the ruling of the Supreme Court. Here the word chosen was ''hostilities,'' and over time hostilities has been defined through executive and congressional practice to encompass some level of strikes with a major focus, as I have suggested, being on whether the mission is limited, whether the risk of escalation is limited, whether the exposure is limited, and whether the choice of military means is narrowly constrained. And it is within that set of four limitations that apply here that it was our conclusion that we are well within the scope of the kinds of activity that in the past have not been deemed to be hostilities for purposes of the War Powers Resolution. Senator CASEY. I will ask you some other questions by way of supplemental written questions. But I would ask you as well, in connection with this, are you concerned about the precedent here as it relates to Executive power. Do you have any concerns about that? Do you think that this is breaking new ground? Mr. KOH. Well, there are two different questions, Senator. Of course, I am concerned about the precedent. I have spent much of my academic career writing about the balance of powers between Congress and the Executive in foreign affairs. In 1990, my first book on this subject, I pointed out that the basic structural flaw of the War Powers Resolution, which has a number of virtues--one of the virtues is it promotes dialogue through a blunt time limit. But one of its structural flaws is that it requires an automatic pullout with Congress ever having made a specific judgment about whether or not they approve or disapprove of an action. And that could lead in certain circumstances to atrocities resuming because of the lack of a clear congressional stance. The goal in the Vietnam era was to try to find a single congressional position that could be applied. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 22 Now, I agree that there have been cases in which the executive branch has overreached. I have written about this in my academic work for many years, which is precisely why the precedent here we think has been narrowly drawn. As I said, we are not challenging the constitutionality of the resolution, which a number of administrations have. We are not saying the War Powers Resolution should be scrapped, whether it is constitutional or not. What we are simply saying is that when the mission is limited, the risk of escalation is limited, the threat to troops is limited particularly because of no ground troops, and when the tools being used are extremely limited, that that does not trigger the 60-day clock. And in doing so, we look to Executive and congressional precedents dating back to 1975, the Persian Gulf tanker controversy, Lebanon, Somalia, Grenada, to see where it fit. And when you have a situation in which something like Kosovo or Bosnia where campaigns on a very large scale--and we are talking here about a zero casualty, little or no risk of escalation situation and 1 percent of the munitions, that strikes us as a difference that ought to be reflected in whether it fits within the scope of the statute. So the very rationale that I am presenting today is limited. If any of those elements are not present, none of what I have said necessarily applies. You would have to redo the analysis. Senator CASEY. Thank you. The CHAIRMAN. Thank you, Senator Casey. Senator Corker. Senator CORKER. Thank you, Mr. Chairman. And thank you for your testimony. I do want to say that in many cases I have heard certainly you today, but the administration try to justify sort of the ends--or the means for the end. I know that you have talked a little bit about Libya and Qadhafi and your handling of this. I just want to say that those are two very, very separate issues, and I am sure that up here there are people who have very differing opinions about our involvement in Libya but still have strong concerns about the way the administration has handled the actual process itself. So I do not think it is very helpful to try to meld the two together, and I think it really waters down the issue at hand. I will say then that I find it humorous sitting here on the Foreign Relations Committee, the most deliberative body in the world some say, and basically you guys have not provided witnesses from the Department of Justice or the Pentagon. We seem to take that as a humorous thing. You know, the administration has basically said there is no reason for us to get any kind of resolution from Congress, and yet the Senate today in its urge to be ''relevant'' is rushing to give the administration a resolution even though it is basically saying in this case the Senate is irrelevant. So I would ask you this one question. Now that you have taken this argument and seen the response that you have gotten from people on both sides of the aisle, are you still glad that you traveled this route as it relates to making the argument you have made about the War Powers Act? Mr. KOH. Senator, I believe this argument. I think it is correct. I would not be here if I did not believe that. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 23 Senator CORKER. I did not ask that. Are you glad that you basically created an issue where no issue had to exist by taking this narrowly defined route and basically sticking a stick in the eye of Congress? I mean, is that something that you are glad you have done? Mr. KOH. Senator, that was not our intent, and if you felt that a stick was stuck, that was not the goal. You said a number of things which I thought I should include in my answer. One, the War Powers Resolution is not a mechanical device. It has to be construed in light of the facts at the time. Otherwise, the 1973 Congress would be making decisions instead of the Congress of 2011. So it has to take account of the circumstance. Second, with regard to witnesses, I am the legal adviser of the State Department. Footnote 1 of my testimony reviews the many times that the legal adviser has appeared before this and other committees to present on the War Powers Resolution. This is my committee of jurisdiction. You voted my confirmation, and so I am here for the conversation. Third, it was our position from the beginning that we were acting consistently with the War Powers Resolution, but that we would welcome support because, as Senator Lugar said, the President would always value a bipartisan support for this kind of effort or mission. And finally, you asked whether we have made errors. I think that this controversy has probably not played out exactly as some would have expected. If we had to roll the tape back, I am sure there are many places where some would have urged--and I would have been among them--coming up earlier for more briefings and to lay out these legal positions. For my part of that, I take responsibility. But I do believe that at the end of the day, the last thing we are saying, Senator--in fact, the thing we are not saying is that the Senate is irrelevant. To the contrary. Senator CORKER. We are making ourselves irrelevant. Let me do this. This is a long answer. I would like to have just a--I wanted to give you the respect of answering. I did not really want you to answer everything I just said, but since you have, I would like to have a couple extra minutes. Do you want to say any more regarding my opening comments? Mr. KOH. I think the point of my testimony is however the legal question is addressed, there is still fundamentally the question of what to do about the civilians in Libya. And that is a decision on which the Senate can make a decision this afternoon. This committee. Senator CORKER. Well, I do not think we are really making any decisions than are different than what you are carrying out. So we are rushing to make ourselves irrelevant this afternoon by virtue of passing something out that basically says--you know what it says. So let me ask you this. The chairman mentioned that since no American is being shot, there are no hostilities. Of course, by that reasoning, we could drop a nuclear bomb on Tripoli and we would VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 24 not be involved in hostilities. It just goes to the sort of preposterous argument that is being made. But I do think one of the issues of precedence that you are setting is that Predators now--and I do want to remind you the Justice Department of this administration has spent lots of time trying to deal with people's rights as it relates to terrorism and that kind of thing. And yet, basically what you all are doing by arguing this narrow case is saying that any President of the United States, Republican or Democrat, can order Predator strikes in any country and that is not hostilities. And of course, we know what Predators do. I think you know what they do, and lots of times human beings are not alive after they finish their work. So basically what you are doing is arguing that a President can order Predator strikes in any place in the world by virtue of this narrow argument that you have taken and that is not hostilities and Congress plays no role in that. Mr. KOH. Senator, that is not what I am arguing. Obviously, if Predator strikes were at a particular level or if we were carpet bombing a country using Predators, that would create a dramatically different situation. But the scenario that I have described to Senator Casey is a very different one. Within the constraints of this particular mission without ground troops, the Predators are playing a particular role with regard to the elimination of certain kinds of assets of Qadhafi that are being used to kill his own civilians. Even the numbers that Senator Casey mentioned are not close to the kind of level that we would consider to be ones that would trigger the pullout provision. So I think the important thing--and the question that had been asked was are we presenting a limited position. Yes, because all four limitations are what bring it within the line of the statute. We do not say that any element at all by itself could not be expanded out of shape and require a reexamination under the War Powers Resolution. I gave the example of a U.N. Security Council situation, Desert Storm, that required approval because of the scale of the operation. Senator CORKER. I think you have established a precedent. This administration has established a precedent for this country by taking this argument that any President, Republican or Democrat, can use Predators in any country they wish because that is limited hostilities without Congress being involved. I am going to probably come to a close quicker than I wanted to because of the time. But we do have aircraft flying over Libyan airspace. Do we not? That is yes or no. Mr. KOH. Yes; we do. Senator CORKER. And we do know that there are numbers of types of weapons that they have that could, in fact, take down our aircraft that are not necessarily in fixed positions. Is that correct? Mr. KOH. That is correct. Senator CORKER. So to say that our men and women in uniform are not in a position to encounter hostilities or involved hostilities is really pretty incredible. You know, you cite the fact that hostilities has never been defined. I went back and read the House conference which basically VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 25 reported out the War Powers Act. As a matter of fact, they tried to make it a lesser level. They started out with ''armed conflict,'' and then they used the word ''hostilities.'' And they did so in such a manner to certainly talk about the kinds of conditions that exist today on the ground. So when you say that these are not hostilities, that is just patently not the intent of Congress when they passed the War Powers Act. Now, you have introduced something unique, a mathematical formula. And I am sure future Presidents will use a mathematical formula. In other words, if we are only doing X percent of the bombing, then we are not involved in hostilities. But I find that not in any way to jibe with what the House sent out in its reporting language. I am just going to close with this because my time is up, and I know the chairman is getting impatient. I did not support your nomination. I thought you are a very intelligent person obviously, very well learned. But I felt that you had the likelihood to subject U.S. law or to cause it to be lesser important than international law. And while I made no statement to that effect publicly, I told you that privately when we met in our office. And that is exactly what you have done. You basically said the United Nations has authorized this and there is no need for Congress to act and we are going to narrowly define hostilities. I would guess at night, however people of your category give high fives, you are talking to other academics about this cute argument that has been utilized. But I would say to you that I think you have undermined the credibility of this administration. I think you have undermined the integrity of the War Powers Act. And I think by taking this very narrow approach, you have done a great disservice to our country. And I do hope--I do hope--that at some point we will look at the War Powers Act in light of new technology, in light of new conflicts, and define it in a way that someone using these narrow and what I would call cute arguments does not have the ability to work around Congress. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, Senator Corker. I think it is important, obviously, to have these views out. I was not growing at all impatient. I am happy to give you extra time. I think this is an important discussion. As I think you know, Senator, I value my friendship and our relationship a lot. But I do have to tell you, based on what you just said, that your facts are just incorrect. I mean, your basic facts on which you are basing your judgment is incorrect. Let me tell you why. First of all, the President of the United States accepts the constitutionality of the War Powers Act and sought to live by it. No President has done that yet. Senator CORKER. I did not argue that. So that is not a fact---- The CHAIRMAN. Well, but it is a fact because you come to the next point. Having done that, the President sent us a letter before the expiration of the time period. And in the letter--and I am going to put the letter in the record--he says: ''Dear Mr. Speaker and Mr. President, the President Pro Tem in the Senate, on March 21, I reported to the Congress that the United States, pursuant to a VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 26 request from the Arab League and authorization by the United Nations Security Council, had acted 2 days earlier to prevent a humanitarian catastrophe by deploying U.S. forces to protect the people of Libya.'' He then goes on. I am not going to read the whole thing. But then he says: ''Thus, pursuant to our ongoing consultations, I wish to express my support for the bipartisan resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, Lieberman which would confirm that the Congress supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people.'' Now, he asked us to do that before the expiration of the 60 days. But we did not do it. Do not blame the President. The Congress of the United States did not do it, and let me tell you why bluntly. Because both leaders in both Houses were unwilling at that point in time to do it. You know, let us be honest about this. Senator CORKER. Well, I am being very honest, and I think that parsing words---- The CHAIRMAN. Well, you are not being honest. Senator CORKER. And I have the ability to express my opinion just like you do and to use facts just like you do. And if you want to get into a debate about this right now, I am glad to do that. I would like---- The CHAIRMAN. Senator, you are not letting me finish my point which is that you are saying the President violated the process here and did not come to the Congress. He did come to the Congress. He sent us a letter requesting us to do the authorization and we did not do it. That is the simple fact here. Moreover, there is a constitutional question here because in paragraph (b) of the War Powers Act, it says that the President shall terminate any use of the United States Armed Forces with respect to such report submitted unless the Congress has either declared war or has enacted a specific authorization within the 60day period. So if Congress does not act, Congress can, in effect, by its lack of action challenge the constitutional right of the President to do something. That is, in effect, a constitutional standoff. And any Senator could have gone to the floor of the U.S. Senate with a resolution during those 60 days. No Senator chose to do so. So all I am saying is I am not going to sit here and let everybody throw the dart at the White House saying the President violated this and that when he was the first President to ever say I accept the constitutionality of the War Powers Act. Second, he sent us a letter before the expiration of the time asking us to pass the authorization. And third, I will say this to you as the chairman. I went to the leaders. Nobody wanted to do it. So here we are. So the real relevant question here is whether or not--I agree with you. I think there are some serious constitutional questions about Predators, how do they fit, and I think Legal Adviser Koh has accepted that. We need to exercise our responsibility to modernize this. But the mere fact that hostilities are taking place--and they are--does not per se mean United States Armed Forces have been introduced into those hostilities if they are not being shot at, if VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 27 they are not at risk of being shot at, if there is no risk of escalation, if the mission is narrowly defined. So I know none of us want to get trapped in the legalese here and we want to try to do this in the right way. But it is just wrong to suggest that somehow the President went outside the constitutional process here when, in fact, Congress--us--have done nothing within those 60 days to either authorize it or declare war or not. [The May 20, 2011, letter from the President on the War Powers Resolution follows:] Dear Mr. Speaker and President Pro Tem: On March 21, I reported to the Congress that the United States, pursuant to a request from the Arab League and authorization by the United Nations Security Council, had acted 2 days earlier to prevent a humanitarian catastrophe by deploying U.S. forces to protect the people of Libya from the Qaddafi regime. As you know, over these last 2 months, the U.S. role in this operation to enforce U.N. Security Council Resolution 1973 has become more limited, yet remains important. Thus, pursuant to our ongoing consultations, I wish to express my support for the bipartisan resolution drafted by Senators Kerry, McCain, Levin, Feinstein, Graham, and Lieberman, which would confirm that the Congress supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government. The initial phase of U.S. military involvement in Libya was conducted under the command of the United States Africa Command. By April 4, however, the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition's efforts. Since April 4, U.S. participation has consisted of: (1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance; (2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and (3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts. While we are no longer in the lead, U.S. support for the NATO-based coalition remains crucial to assuring the success of international efforts to protect civilians from the actions of the Qaddafi regime. I am grateful for the support you and other Members in Congress have demonstrated for this mission and for our brave service members, as well as your strong condemnation of the Qaddafi regime. Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort. Such a Resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with Congressional engagement, consultation, and support. Sincerely, BARACK OBAMA. Senator CORKER. Well, Mr. Chairman, I would just respond that I think the central element of my argument to Mr. Koh who, by the way, I very much respect his intellect--I do not respect his judgment in this particular case. My argument is around the issue of hostilities. That is what the focus of my argument was, and by narrowly defining that or being cute where you say I support the constitutionality of the War Powers Act, but on the other hand, since we are not really involved in hostilities--wink, wink--we really do not need to deal with Congress. That is the part. That just happened on the 15th. I do not think anybody in this body had any idea that the President would take such a narrow, narrow interpretation of hostilities. I do not think anybody knew that. I think it has been a shock to all. I think the President wishes he had handled this differently because what has happened is by being cute, they have introduced a whole other debate here that should not be taking place. And my VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 28 guess is they might have gotten overwhelming support for a limited operation, whether I support it or not. What they have done by trying to have it both ways, which is what they did with the June 15 letter, is interject a debate that has to do with credibility, has to do with integrity, and to me is a great disservice to this country. So I stand by what I just said. It is factual. And I will be glad to debate this all day long. The CHAIRMAN. Well, hopefully, we do not have to do that at 2:30 this afternoon. I am sure that we can do it without debating it all day long. But I do think that it is important. I did hear you say, quote, rushing to give a resolution and I heard you say the Senate is irrelevant. And I think that when you measure those things against the reality of what the President asked us to do, any of this issue is really because the Senate has been having a very difficult time getting anything done lately. Senator Webb. Senator WEBB. Thank you, Mr. Chairman. I would like to express my admiration for Senator Corker showing me how to turn 7 minutes into 25 minutes. [Laughter.] I have been trying to figure out how to get more time on this committee for 41/2 years. I would just like to say a couple things very quickly in reaction to the exchange that just took place. One of them is that whether or not the President consulted with certain people in the Senate, and whether or not there was a request for us to validate the actions, the issue before us right now is this administration is coming forward and saying the War Powers Act does not apply in this situation because of their very narrow and, in my opinion, contorted legal definition of ''hostilities.'' That is the issue that is before us--not the other one. I would just like to say I think the most unusual part of this decision was not simply the issue that Senator Corker raised, which is a very important issue in terms of the use of indirect fire, but the use by a President of a very vague standard that he or she can unilaterally inject military force into situations around the world based on a vague standard of humanitarian assistance. We have not seen that before. And that is something that demands a certain amount of accountability. This was the major reason that I started to become concerned with the way this operation was unfolding. But I will say when you have an operation that goes on for months, costs billions of dollars, where the United States is providing two-thirds of the troops even under the NATO fig leaf, where they are dropping bombs that are killing people, where you are paying your troops offshore combat pay--and there is a prospect of escalation. It has something I have been trying to get a clear answer from with this administration for several weeks now, and that is the possibility of a ground presence in some form or another once the Qadhafi regime expires. I would say that is hostilities. Now, Mr. Koh, there was a debate inside the administration on this definition. Was there not? VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 29 Mr. KOH. The President took the position and that is the position---- Senator WEBB. Yes, but there was a debate as to the issue of whether this constituted hostilities, and we have read about it in the paper. Mr. KOH. Well, Senator---- Senator WEBB. Just yes or no. Mr. KOH. I cannot comment on---- Senator WEBB. Well, for the record, there is plenty of reporting that there was a good bit of debate as to whether this was the right way to go. What do you make of the fact that military offshore are receiving combat pay? Mr. KOH. They are also receiving it in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and dozens of other countries under the same provision. It does not mention hostilities, and I do not think anybody believes that we are in a War Powers Resolution situation in those countries. We are talking about something different. I think the point, Senator, which--these are hard questions. Senator WEBB. I do not mean to interrupt you, but I really only have about 7 minutes here. The CHAIRMAN. I will give you time. These are important issues. Senator WEBB. All right. Then go ahead and finish your thought. Mr. KOH. Imminent danger pay is given on a different basis than hostilities. And so one statute applies to one and one applies to the other. At the end of the day, this is a question of statutory interpretation. It is not the administration that is saying that drones are not covered. The question is whether when you have an unmanned aerial vehicle, that is an introduction of a U.S. armed force in a statute that was drafted by Congress. So if that language no longer works, then---- Senator WEBB. Well, in general, because if you are engaged in a Vietnam type military operation, which I was, you have certain support elements that are providing indirect assistance to the people who are putting bullets on the battlefield. I really do not see any distinction here in the Vietnam environment, or a journalist in Afghanistan, or if was a journalist in Beirut. Not everybody is a trigger puller. The definition that you are using that makes a distinction between aircraft that are refueling the bombers or conducting intelligence activities or surveillance is an artificial distinction. Mr. KOH. Well, Senator, nobody is saying that something replicating Vietnam at this moment would not be---- Senator WEBB. No; I am not talking about Vietnam per se. I am talking about multiple environments: Afghanistan, same. Beirut-- same thing. Mr. KOH. I think you make the most important point of all, Senator. These are questions of judgment. In your role in the Navy, you played that role of exercising that judgment. It is not a mechanical formula. And the question is whether the mission, when it has been shaped this particular way in this particular setting VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 30 with this particular risk of escalation, exposure, which are very low---- Senator WEBB. You have repeated that language several times today. I understand your point on that language. Let me ask you another question because it is very important. We still have not severed relations with the Qadhafi government. Or have we? If we have, it has been in the last week or so. We have suspended our relations with Qadhafi regime, but we have not severed relations. So technically we still recognize this government. Would that be a correct interpretation? Mr. KOH. Well, Senator, we are trying to hold them responsible---- Senator WEBB. No, no. Give me a legal answer. We have not severed relations. Is that correct? Mr. KOH. And the reason for that---- Senator WEBB. No. Is that correct? Mr. KOH. The relations have been suspended. Senator WEBB. They are suspended but they have not been severed. Mr. KOH. That is correct. Senator WEBB. So what is the constitutional limitation on the assassination of a head of state? Mr. KOH. The assassination of a head of state is restricted by Executive order. That Executive order is enforced. Admiral Locklear has made clear that despite press reports, he has not expressed a view. Senator WEBB. So the Executive order would say that there is preclusion against the assassination of a head of state. Mr. KOH. Well, the wording of it is an unlawful act, and the interpretation of the assassination ban would depend on the facts of the situation. But I think the reason for the lack of severing is so that the Qadhafi government can remain responsible under international law for those things that Qadhafi is doing by using the forces of the government. Senator WEBB. I understand that. I understand that. You cannot distinguish that out on this point any more, quite frankly, I think it is relevant to distinguish out hostilities based on these other realities. And, there are people who are going to have differences of opinion about that. But I wanted to make that clear because there is a lot of talk up here about the way in which Qadhafi should exit. Nobody up here wants him to remain, but the moral standard that we set on issues like this is the same one that we should expect and it is a point we need to be thinking about. Thank you, Mr. Chairman. The CHAIRMAN. I think it is a good point, Senator Webb, and I am glad you raised it and I appreciate the line of questioning. I do not want you to feel cut off because there are only two other Senators. Obviously, the purpose of having the limitation is when everybody is here, but if there are four or five of us, I am very happy to let Senators go longer. So I want to make sure you feel---- Senator WEBB. Thank you, Mr. Chairman. I feel well taken care of today. Thank you. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 31 The CHAIRMAN. Thanks. I appreciate it. [Laughter.] The CHAIRMAN. Senator Lee. Senator LEE. Thank you so much for joining us today. I want to start out by thanking the members of our Armed Forces, those who sacrifice much in order to place themselves in harm's way to stand up for American national security. I appreciate them. The issue we are discussing today does implicate a number of questions that are important to American national security especially when we consider the fact that there are lots of places in the world where our national security is in one way or another placed in jeopardy by some of the things that people are doing and things that people are saying. So I think it is appropriate that we have this discussion because we want to make sure that when we deploy these people, these brave young men and women who serve us and serve us so well, that we are doing so in a way that maximizes their utility to protecting Americans at home. The first question I would like to ask you relates to the definition of the term ''hostilities'' as used in section 1541 and elsewhere in the War Powers Resolution. How do you define the term ''hostilities'' as used in the War Powers Resolution? Mr. KOH. As our testimony sets forth, the effort to define it--and this is described in the descriptions of the conversations of Senator Javits, the sponsor, et cetera, was to leave the matter for subsequent executive practice. Senator Corker had mentioned the House conference report had originally proposed the term ''armed conflict.'' There was an irony in the question which is that ''armed conflict'' is a term of international law. They deliberately did not import that term into this statute precisely so that international law would not be the controlling factor. And the net result was that in 1975 under the Ford administration--and you know it well because of service that your own family did in that administration--the Congress--and this is in the first footnote of my testimony--invited the legal adviser, my predecessor, Monroe Leigh, to come forward with a definition of hostilities from the executive branch, applying exactly the judgments that we are describing here. And in my testimony, I describe the response that was given by Mr. Leigh and his coauthor in which they essentially set forth a standard--and this is on page 6 of the testimony--in which they said the executive branch understands the term ''to mean a situation in which units of the U.S. Armed Forces are actively engaged in exchanges of fire with opposing units of hostile forces,'' and then said that the term should not include situations which were ones in which the nature of the mission is limited, where the exposure of U.S. forces is limited, where the risk of escalation is limited, or when they are conducting something less than full military encounters as opposed to surgical military activities. Senator LEE. Where is that from, Mr. Koh? Mr. KOH. It is described on page 6 of my testimony and it is in the first footnote, the letter from State Department Legal Adviser Monroe Leigh with regard to the Mayaguez incident to the Inter- VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 32 national Security and Scientific Affairs of the House Committee on International Relations. It is an important document, Senator, because Congress acknowledged that it did not know what hostilities meant from the legislative history alone, and so they invited the executive branch to give clarification. Senator LEE. And I do not disagree with the broader definition, but like so many definitions, that one has been severely undermined and here, I believe arguably, vitiated by the exceptions to it. Does it not strike you as something that is a little bit dangerous to say? Even when we have our own armed services or armed personnel firing upon the military establishment, the radar systems, and other components of a foreign nation's defense system on their foreign soil, regardless of whether we have got boots on the ground, it seems to me to be hard to say that that does not involve hostilities. Given the limitations on our time, though, I would love to take a step in a different direction and then come back to this, if we have got time afterward. In your opinion, is this question, the question of the constitutionality of the War Powers Resolution, one that logically could or ever would be resolved in any Article III court proceeding in light of, A, the nonjusticiable political question doctrine and, B, immunity that might be enjoyed by one or more parties to any suit that might be brought? Mr. KOH. I think, Senator, it is a good question. I think it is highly unlikely that it would be justiciable. There was in the Vietnam era a number of famous cases, Holtzman v. Schlesinger, where some cases did get into court. But the general pattern of the case law since then has been that these suits have been dismissed on some preliminary ground. But going to the earlier point which you made, which is when someone is firing, when there are boots on the ground, does that per se rise to the level of hostilities, the testimony that I gave points to in prior administrations in situations in Lebanon, Grenada, the Persian Gulf tanker controversy, Bosnia, Kosovo, all were circumstances in which there were more casualties, more boots on the ground, many, many hundreds of more munitions dropped, and those were not deemed, under those circumstances to be hostilities. It is on that basis that we have come here saying that we think that this factual situation, unique factual situation, limited in these ways fits within the frame of hostilities as has been understood that therefore it does not trigger the 60-day limit. A final point, and I think it is an important one to emphasize. We are not here---- Senator LEE. Actually, I know you have got a final point that you want to make. I do have a final question that I really want to ask. Mr. KOH. Please. Senator LEE. Let us assume for purposes of the discussion here that we are dealing with hostilities. If we were dealing with hostilities, if you agreed with me that we were dealing with hostilities, under section 41, would the President not have to justify, in addition to the 60-day requirement, the other timing-related requirements, the reporting requirements, consultation and so forth-- VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 33 wouldn't the President also have to articulate a military justification for our involvement in those hostilities based on the language of section 1541, meaning that they are justified either by some form of statutory authorization from Congress, by declaration of war, or by a national emergency, not just any national emergency but one created by an attack on the United States, on its territories or possessions or on its armed forces? Wouldn't that be the President's duty? Mr. KOH. Well, the President has complied with the reporting provisions and, in fact, past administrations have, by and large, responded---- Senator LEE. Yes, sir, but I'm not talking about the reporting obligations. I am talking about the 1540, the requirement in section 1541 that recognizes that the constitutional power of the President, the Article 2 Commander in Chief power of the President as Commander in Chief to introduce the United States Armed Forces into hostilities, are exercised only pursuant to a declaration of war, statutory authorization, or just national security emergency created by an attack. That's what I'm talking about. Mr. KOH. Well, Senator, as you can imagine, these are questions that have been debated for years. That is a statement by the 1973 Congress about what it thinks are the limitations of the President's capacity to introduce forces. Take, for example, Professor Louis Hankin of Columbia Law School. In his book ''Foreign Affairs and the Constitution'' describes a range of military actions less than hostilities and less than war which have been done outside the scope of that. So the question has always been, is that an exhaustive list or is it not an exhaustive list? But I think the critical point here is that what we are arguing here simply is the provisions of the statute from our perspective are not triggered, therefore we don't even get to the question of whether the constitutionality of the statute is in play. We have no intention in this situation to raise that issue, and we are operating as a matter of good faith statutory interpretation based on the very unusual facts present here. Senator LUGAR [presiding]. Thank you very much, Senator Lee. Senator Coons. Senator COONS. Thank you. I want to thank Chairman Kerry for his leadership in convening now five different hearings since February on the actions in Libya, and I want to thank Senator Lugar and others for raising, I think, critical questions surrounding our engagement in Libya and the questions that pertain to the War Powers Resolution. In the face of the atrocities committed by Qadhafi earlier this year, the United States I believe did have an obligation to protect the Libyan people from the very real threat of massacre, and I supported and applauded the passage of U.N. Resolution 1973 to protect Libyan civilians, and was encouraged by the strong international consensus surrounding this issue and have so far supported U.S. military engagement as one component of a broad multilateral commitment led by NATO. At the same time, I have real and growing concerns about the approach to the war powers issue, and in particular about the precedent that may be set here. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 34 So, Mr. Koh, it's wonderful to be with you again. I have, as always, found you an able and compelling advocate today. I am reminded of an old saw in legal practice. When the law is on your side, argue the law. When the facts are on your side, argue the facts. When neither is on your side, pound the table. And I note that today you've argued the facts. You have, I think, as ably as one possibly could, explained a very narrow reading of hostilities, and a number of the Senators who have spoken before me have reflected the fact that our constituents are finding very real tension between a commonsense understanding of hostilities and the exercise of statutory construction in which you are engaged, appropriately in your role, to define these four narrowing factors of mission, exposure, means, and risk of escalation. The only part of Senator Corker's comments to you that I would in any way agree with would be the concern about statistics and the use of a percentage justification. Other than that, I frankly find your focus on the unique facts of this current Libyan situation largely compelling, and I am hopeful that later today our committee will move to make appropriate resolution to this ongoing impasse between the administration and the Senate. You repeatedly refer to one of the good outcomes of the War Powers Resolution being that it promotes interbranch dialogue, and I suspect you've gotten a great deal of that dialogue today. I have a few questions I'd be interested in hearing your input on, understanding and respecting the difference in our constitutional roles. One would be just--and I'd urge you to answer this in the context of the other two. What else could we and should we have been doing between the branches to more effectively foster that dialogue? As you know through your able scholarship in this field, the War Powers Resolution is a rough-hewn artifact of its time. I have been very concerned that through a lack of respect and application it has drifted into near irrelevance, and I was encouraged to hear the chairman's comment and your testimony that strongly suggests that this administration affirms its constitutionality, its relevance going forward, and I hope would like to work in partnership to find ways to make it an effective tool of interbranch dialogue. So first, in your response to Senator Lugar, you said that drones don't get a pass under the War Powers Resolution. You also made, I think, telling reference to cyber warfare. The Department of Defense just issued a new statement on cyber warfare policy. Since you've obviously given great thought to these questions over many years, how might you suggest that we update the War Powers Resolution to reflect the reality of modern warfare, one in which many of the factors cited by your predecessor in your current role could not have anticipated, and to reflect some of the points raised by Senator Webb, ones in which American soldiers would not be exchanging fire, would not be directly at risk, where the threat of escalation might be quite limited but where nonetheless, not just in a commonsense understanding of hostilities but in a very real understanding of hostilities, we would be engaged in war? That is my main concern of the, I think, strained and somewhat narrow reading of hostilities that we have in front of us today. How would you update it to take account of these very modern developments in the war capabilities of our Nation? VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 35 Mr. KOH. Thank you, Senator Coons, and I appreciate your, as always, thoughtful remarks. No. 1, obviously, if we are concerned about unmanned uses of weapons that can deliver huge volumes of violence, a statute which only deals with the introduction of U.S. Armed Forces does not address that situation. I don't blame anybody. At the time the law was passed, they were thinking about Vietnam. They weren't thinking about drones or cyber. So that would be one possibility to change the law to address realities of modern conflict. Second, the War Powers Resolution functions in a way to promote dialogue by a deadline. While it's unclear what triggers the deadline, and where the state of affairs that's supposed to trigger the deadline, namely hostilities, is deliberately vague, which puts a later Congress and President in a position of trying to figure out when the clock began and what the conditions are, and then to decide whether the urgency of a deadline actually promotes a dialogue. In a book I wrote a number of years ago, I actually addressed that by saying you could have a statute that directly requires dialogue between Congress and the executive branch, particularly, say, a group of senior leaders of Congress, the Group of 16. That was, in fact, embodied in the Byrd-Nunn-Warner-Mitchell bill, which was discussed for a long period of time. Quite recently, a very distinguished commission led by former Secretary of State Jim Baker, former Secretary of State Warren Christopher, who then passed away, and Lee Hamilton, proposed another way to consider the question. A final point is, as much as any of you, including Senator Corker, I agree that this is not a mathematical calculating machine or a mechanical approach. It requires judgment, and that therefore it is important, I think, to try to get away from triggers that rely on false metrics toward things that actually reflect judgments made through interbranch dialogue. And I do think the process here is putting us to the question. If the legal issue is resolved one way or the other, the choice still remains what to do about the civilians in Libya. Did the 1973 Congress really intend that they be left unprotected after 60 days, or did they not think about the situation? This goes back to the point that I quoted from my own writing. The major structural flaw of the War Powers Resolution has been that it requires an automatic termination after 60 days without Congress ever making a specific judgment in a particular case as to whether this is a case in which they'd like to authorize force or like affirmatively not to authorize force, and you cannot run these kinds of things by auto-pilot. It has to be done through judgment, political judgment of the kind that you exercise every day. Senator COONS. If I might, I think that particular provision within the act, after just 6 months here, one that compels an action through the inaction of the Senate, may seem to have wisely reflected the inclination toward inaction rather than action in this particular body. I have one other question I'd like to get to, if I might, Senator, which is just on the question of expropriating funds, or taking funds of the regime with which we have suspended relations but VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 36 where we haven't yet recognized the TNC. What in your view is the legal precedent for expropriating the funds? What's the foreign policy implications? I was struck by the fact that counsel who serves me on the Judiciary Committee identified a provision of the Patriot Act with which I was previously unfamiliar that claims it is legal for the United States to expropriate foreign assets if we're involved in armed hostilities with a foreign sovereign. And what, if any, tensions do you see between the definition of hostilities here in the War Powers Resolution and under the Patriot Act, and what do you think are the challenges we might be raising for the United States in the future given--excuse me, Senator--given the likelihood that we're going to proceed to in some ways expropriate and reallocate funds that are currently, at least legally, controlled by the Qadhafi regime? Mr. KOH. It's an excellent question, Senator. The vesting legislation that has been proposed is designed to address the question precisely because under the International Emergency Economic Powers Act was designed as a freeze, not seize. Were there congressional authorization of the action here, arguably you could proceed under the provision you've described for vesting. There's still a question under international law about vesting because expropriations, as you know from the Cuban example and others, raise questions of international challenge. I do think that the best approach is to enact the vesting legislation, which I think, instead of putting it again into a past historical frame, is a specific application of congressional judgment to deal with this situation that's before you now and which clearly calls for some consideration of how to give resources to the TNC and the people of Libya. Senator COONS. Thank you for your testimony today, and I look forward to continuing to work with you on these very difficult issues. Mr. KOH. Thank you, Senator. Senator LUGAR. Thank you, Senator Coons. Senator Risch. Senator RISCH. Thank you, Mr. Chairman. Mr. Koh, I've been watching the fray from afar on the TV broadcast, and I'm intrigued by the creative explanations that we've had here today. Let me ask you this. I want to give you a quote from thenSenator Obama in December of 2007, and he said, ''The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.'' Now, I've heard the discussion of that. Can you give me a simple answer? Is that still his position? Mr. KOH. Well, the key word is ''military attack.'' Is that from the Boston Globe, Senator? Senator RISCH. You know, this was widely disseminated at the time. It wasn't just one publication. It may have originated there; I'm not sure. But you're right, this is how many angels can dance on the head of a pin when you're talking about, well, is it military attack, is it hostilities, is it--whatever you want to call it. But it VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 37 seems to me he was pretty clear in this statement. Is this still his position? Mr. KOH. Well, Senator, as I understand it, there were a series of questions posed to various candidates and answered by their campaigns. My own view of that phrase--I was not involved with the campaign--is that it is an overly limited statement of the President's constitutional authorities. I think if instead of the word ''military attack'' it says ''make war,'' that would clearly be a correct statement of law. Senator RISCH. Make war? Hostilities? Military attack? This is all the same thing, isn't it? Mr. KOH. No, Senator. ''Make war'' has particular meaning under Article 1 of the Constitution. Senator RISCH. Are we making war on Libya? Mr. KOH. We are not, not for purposes of the Constitution, and I set that forth on page 13 of my testimony. Senator RISCH. Is this or is this not the President's position at this time, this statement? Mr. KOH. The position of the President with regard to this action is set forth in my testimony in the position we're taking here. Senator RISCH. Can you give me a yes or no? Is this or is this not the President's position at this time? Mr. KOH. Well, the--I didn't hear the quote clearly enough, so---- Senator RISCH. All right. Let me try it again. ''The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual imminent threat to the Nation.'' Mr. KOH. I don't think that's legally correct, and I don't think that's---- Senator RISCH. No, no. Mr. Koh, I'm not asking about legally correct. Is this or is this not the President's position today? Mr. KOH. I have not asked, but I would be very surprised if it's his position because I do not believe it to be legally correct or shared by those in the administration who are legal experts on this issue. Senator RISCH. I'm not talking about that. I'm talking about the President of the United States. Is this or is this not his position today? Mr. KOH. I don't know, Senator Risch. I haven't asked him that question. I do believe that the same rules apply to Presidents of both parties, and I do believe that the general understanding of the constitutional structure would be that that is too limited a statement for whoever is President. Senator RISCH. As you know, President Obama's predecessor, for every conflict that occurred under his watch, he came to Congress and asked for authorization. You're aware of that, of course. Mr. KOH. I think the President George W. Bush came with regard to 9/11, the authorization of use of military force with respect to al-Qaeda/Taliban-associated forces, and he came with regard to Iraq. Senator RISCH. Notwithstanding all these other explanations and arguments you've made, don't you agree with me that that would VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 38 be a really, really good idea, to come to Congress and ask for that authorization under the circumstances? Mr. KOH. My understanding, Senator, is that the administration has gone back to March 23, expressed that it would welcome the support. It has also taken the position from the beginning that it's acting consistently with the War Powers Resolution. I do think you are putting your finger on the important question, which is the debate over the law can go on forever, but there is an important and urgent question, which is what happens to the civilians of Libya, and that's a decision that can be made by this body, this committee, and then by the Senate as a whole. Senator RISCH. Well, and of course, you know, you can go beyond that, too. You've talked about the citizens of Libya, but we've also got a really serious situation in Syria right now. Indeed, the Syrians aren't even armed and they're being attacked by their government, versus Libya, where there's actually armed conflict going on. You would agree with that, correct? Mr. KOH. Senator, this is an exciting time at the State Department. What can I say? There is only one of these countries with respect to which there is a U.N. Security Council and a NATO mission of this level of detail with this kind of designed roles. And so the analysis that we're describing applies to the Libyan situation. Senator RISCH. And my point is it deserves a debate that the American people can hear. Is that fair enough? Mr. KOH. The more dialogue and debate on these matters of life and death, I think the better for all of us. Senator RISCH. Thank you. Thank you, Mr. Chairman. Senator LUGAR. Thank you very much, Senator Risch. Senator Shaheen. Senator SHAHEEN. Thank you, Mr. Chairman, and thank you to you and Senator Kerry for holding this hearing today. Mr. Koh, we appreciate your being here. I think I'm last, so hopefully there's not too much additional time that you'll be required. It was recently reported that the U.S. admiral in charge of NATO Joint Operations Command stated--and I'm not stating this exactly, but he essentially said that the removal of the chain of command was consistent with the justification to protect citizens. Do you believe that that statement is consistent with the U.N. Security Council resolution, and that NATO troops, if they're actively seeking to topple Qadhafi militarily, that that's consistent with the U.N. resolution? Mr. KOH. Senator, the U.N. resolution calls for the protection of civilians in civilian-populated areas. As I understand it, NATO does not target individuals. They've made it clear that they are not targeting individuals. Earlier, I think it may have been before you came in, I pointed out that there was a report that an admiral had made a comment about the real mission being to target Qadhafi. The admiral has on the record in a public affairs statement made it clear that he did not say that, and that's not, in fact, the rules of engagement that they're following. Senator SHAHEEN. OK. Just to follow that point a little further, though, how would you differentiate between degrading the VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 39 Qadhafi regime's ability to attack civilians and actively targeting Qadhafi himself? Is there a line there that you can draw, or---- Mr. KOH. Most of it is focused in the operational terms as I understand it, Senator, on the destruction of equipment, radar, antiaircraft. Antiaircraft can be mounted on both fixed and mobile devices, and that the targeting has been directed at that command and control. I note in my own testimony on footnote 5 that Qadhafi's own forces' rules of engagement seem to authorize them to indiscriminately attack civilians, and that therefore if they have the apparatus by which they can do that, large numbers of civilians would be killed and we would not be serving our mission, which is to protect the civilians in the civilian-populated areas. But with regard to the question of targeting of leaders, I think the important point to emphasize from the beginning has been that this is a multitool operation involving diplomacy, development, assets freezes, and a unanimous referral of this to the international criminal court, and that in fact arrest warrants were issued yesterday. So as was the case with Slobodan Milosevic, a possibility of removal is through an international criminal trial, not necessarily through the tools of conflict, and that President Milosevic, sometime after the Kosovo episode, went to The Hague, where he was tried, and that is in fact where he died while a prisoner. Senator SHAHEEN. Thank you. I'd like to ask some questions now relative to the TNC, the Transitional National Council, and what the thinking is of the Justice Department relative to recognizing the TNC formally. If we were to do that, does this have an impact on our policy, our legal policies with respect to Libya; for example, how we might deal with any assets? Mr. KOH. Well, Senator, international law focuses on the question of recognition, and recognition tends to follow facts on the ground, particularly control over territory. As a general rule, we are reluctant to recognize entities that do not control entire countries because then they are responsible for parts of the country that they don't control, and we're reluctant to derecognize leaders who still control parts of the country because then you're absolving them of responsibility in the areas that they do control. So, but recognition is not the only tool. There are ways to acknowledge that a particular entity is the legitimate representative of the people, which we have done and other NATO partners have done, and that will obviously then go to the question ultimately of the extent to which the various frozen assets can be made available for the new Libya as opposed to Qadhafi's old regime and way of doing business. Senator SHAHEEN. And with respect to those frozen assets, how are we dealing with those assets and the TNC? Are there any restrictions that we've placed on whether they could be used by the TNC, either now or should the TNC gain control of the country? Mr. KOH. As you know, Senator, before you is vesting legislation, which was a particular proposal to try to address that question. Meanwhile, there are regular contact group meetings attended by the Secretary in which other countries have made available resources to the TNC bank accounts, et cetera. So the process of VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 40 supporting the TNC is a long-term process that requires close cooperation among allies, just as this military mission does. Senator SHAHEEN. And the access to the bank accounts that you refer to, are those bank accounts that would be considered to be part of the frozen assets? Mr. KOH. Well, it's always a complicated situation when bank accounts are held by one regime but they appear to be for the purpose of a broader group of individuals. Senator Lugar faced this issue in the Philippines. It happens in many circumstances. And so exactly sorting out who is entitled to gain access to the frozen resources is an exercise in which we're actively engaged. Senator SHAHEEN. Thank you. The CHAIRMAN [presiding]. Thank you, Senator Shaheen. We are running up against a couple of time conflicts here. So there is going to be a vote, perhaps several votes. Some of them may turn into voice votes around 12:10. So, Legal Adviser Koh, we are going to excuse you at this point in time, to your chagrin and everlasting sorrow, I know. [Laughter.] And we're going to try and get both of our scholars, Professor Spiro and Louis Fisher, to be able to get through their opening testimonies, and then--and you can begin if you want to collect your papers, Legal Adviser, and we'll try to do the transition as seamlessly as we can here. I want to say to both of our members of Panel 2, first of all, I apologize on behalf of the committee for the length of time the first panel took. But as you both understand, this is obviously an important topic and we don't want to give short change to your testimonies. Therefore, what we'd like to do I think today is get your testimony on the record following Harold Koh. I notice one of you is in Philadelphia; the other is nearby. If we could and need to call you back in order to do this, perhaps after the break and finish it, leading off with your panel, we would like to do that, unless the Senate floor process cooperates in a way that lets people get back here after the vote and opening, and we won't know that until we know what happens on the floor. So if you could bear with us on that, we'd like you to come to the table now. And, Legal Adviser Koh, thank you for coming up today and being part of this discussion. It's a very important one. We appreciate it. So, Mr. Louis Fisher and Mr. Peter Spiro, if you would both take your places. We look forward to your testimony. As you know, you can place your full testimony in the record as if read in full and summarize. And again, very much we are grateful for your patience and for taking time to be with us. I don't know if you have an arrangement as to who is going to lead off, but however you want to go. Go ahead. Thanks. Mr. Fisher. STATEMENT OF LOUIS FISHER, SCHOLAR IN RESIDENCE, THE CONSTITUTION PROJECT, SILVER SPRING, MD Mr. FISHER. Thank you very much for a very productive last 2 hours. I learned quite a bit. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 41 I have a number of things I'll say to summarize my statement. I wanted to pick up from what Senator Lugar said about what the Framers were concerned about Executive wars, that they had an incentive and a motivation. And many people today think that whatever the Framers thought in the 18th century has no application to the 20th and 21st centuries. My judgment is that what the Framers were worried about, Executives getting into wars that were damaging to the country in terms of lives lost and fortunes squandered, is particularly relevant today after we've seen some of the wars, the very costly ones, Vietnam, Korea, and I think the second war in Iraq. So I think the Framers had a judgment about human nature, and human nature hasn't changed over that period of time. So I'm very much for the proposal that the decision to use military force against another nation that has not attacked us and has not threatened us is for Congress, and I'll underscore that. And I also want to say that Michael Glennon, who served this committee for many, many years as legal adviser, basically did an analysis of the war in Libya and said that the Constitution ''places the decision to go to war in the hands of Congress.'' So that's my position. And, in fact, that was the position from 1789 to 1950. All major wars were either declared by Congress or authorized by Congress, and 1950, of course, is when that was broken when President Truman went to war, never coming to Congress, against Korea. So it's a recent departure from the Constitution. I give some examples in the first part of my paper about Presidents not talking straight. I say, which many people may find offensive, Presidential double-talk, but in fact that's what Presidents do. As you know, Truman said it's not a war, it's a police action. We've seen this for many, many decades, Presidents not talking straight. One thing that was not said this morning I don't believe at all which concerns me is the position by the Obama administration that they received authorization from the U.N. Security Council. My position is that the Security Council cannot authorize any military action, cannot mandate any military action. If you believe that, then you would have to say that the U.N. Charter or Treaty transferred Article 1 power from Congress, not just from future Senates but from the House of Representatives, and gave it off to some outside body. I think that's an unconstitutional theme, and I don't think that you can get any authorization from the Security Council. So then you have to ask what authorization did President Obama have for this military activity? In a May 20 letter to Congress, President Obama said, ''It has always been my view''--this is not the Boston Globe. This is May 20, this year. ''It has always been my view that it is better to take military action, even in limited actions such as this, with congressional engagement, consultation and support.'' So that has always been his view. I think in February, when this began to unwind in Libya, I think it was his obligation in February to come to Congress and get that authorization. The second part of my paper is authorization from NATO. For the same reason, NATO countries, NATO allies cannot authorize VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 42 the United States to take military action. It's the same problem. NATO is a treaty. Treaties cannot amend the Constitution, cannot take congressional power and give it to outside bodies. I think we've talked a lot here about whether Libya is a war and whether Libya has any hostilities. In both cases, the administration takes the position that if U.S. casualties are low, there's neither war nor hostilities, and that to me is a very unappealing theory because it means that if you have a superior force like the United States, you could pulverize a country, have very few or no hostilities, and there would be neither war nor hostilities. That's the position of the administration. I just think it's an untenable position for any administration to develop that. If it were, then you could have, once you get rid of your air defense systems on the ground in Libya, you could bomb from 30,000 feet, you could send in drones, you could do all the mayhem possible, and you then say no war, no hostilities. If anyone did that to us, after day one there would be war and hostilities, which is Pearl Harbor. We didn't ask in Pearl Harbor whether the Japanese suffered any casualties. We knew from the first day that that was war. The last part of my paper gets into this, which is new to me, the nonkinetic assistance. I think there is kinetic assistance, and once you give a supporting role to NATO, which is the administration's position, you are supporting hostilities. I don't think you can get around that. The last two things, I talked about S. Res. 85. The Office of Legal Counsel relied on that. It took 35 seconds to support on the floor, and a lot of Senators objected that they did not know how S. Res. 85 had been modified, particularly the no-fly zone. And my last comment is again this notion of a mandate. The administration talks about an international mandate, talks about the mandate from the Arab League, mandate from the Security Council, et cetera. President Obama said he acted militarily in Libya ''with a mandate from the United Nations.'' To me, there is only one permitted mandate under the U.S. Constitution for the use of military force against another nation that has not attacked or threatened us, and that mandate must come from Congress. Thank you. [The prepared statement of Mr. Fisher follows:] PREPARED STATEMENT OF LOUIS FISHER Chairman Kerry, Ranking Member Lugar, and members of the committee, thank you for the invitation to testify on the Obama administration's legal and constitutional justifications for military operations in Libya. I start by examining four claims by the administration: (1) the President may obtain ''authorization'' not from Congress but from the U.N. Security Council, (2) the President may rely on NATO for additional ''authorization,'' (3) military operations in Libya do not amount to ''war,'' and (4) those operations do not constitute ''hostilities'' within the meaning of the War Powers Resolution. My statement concludes by turning to (5) the administration's reliance on S. Res. 85 for legislative support, (6) references to ''non-kinetic assistance,'' and (7) the claim that the administration received a ''mandate'' to act militarily from such sources as the Security Council, the ''Libyan people,'' and a ''broad coalition'' including the Arab League. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 43 PRESIDENTIAL DOUBLETALK 1 Fundamental to the Constitution is the Framers' determination that Congress alone can initiate and authorize war. To secure the principle of self-government and popular sovereignty, the decision to take the country from a state of peace to a state of war is reserved to the elected Members of Congress. The Framers recognized that the President could exercise defensive powers ''to repel sudden attacks.'' 2 John Jay expressed the Framers' intent with these words: ''It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.'' 3 Professor Michael J. Glennon, who previously served this committee as Legal Counsel, recently underscored that the Constitution ''places the decision to go to war in the hands of Congress.'' 4 From 1789 to 1950, all wars were either authorized or declared by Congress. That pattern of 160 years changed abruptly when President Harry Truman unilaterally took the country to war against North Korea. Unlike all previous Presidents, he did not go to Congress to seek statutory authority. He and his aides did what other Presidents have done to expand their control over the war power. They go to great lengths to explain to Congress and the public that what they are doing is not what they are doing. President Truman was asked at a news conference if the Nation was at war. He responded: ''We are not at war.'' A reporter inquired if it would be more correct to call the military operations ''a police action under the United Nations.'' Truman quickly agreed: ''That is exactly what it amounts to.'' 5 There are many examples of Presidents and executive officials being duplicitous with words. A price is paid for that conduct, both for the President and the country. Korea became ''Truman's War.'' During Senate hearings in June 1951 on the military conflict in Korea, Secretary of State Dean Acheson conceded the obvious by admitting ''in the usual sense of the word there is a war.'' 6 What sense of the word had he been using? Federal and state courts had no difficulty in defining the hostilities in Korea as war. They were tasked with interpreting insurance policies that contained the phrase ''in time of war.'' A federal district court noted in 1953: ''We doubt very much if there is any question in the minds of the majority of the people of this country that the conflict now raging in Korea can be anything but war.'' 7 In August 1964, President Lyndon Johnson told the Nation about a ''second attack'' in the Gulf of Tonkin, a claim that was doubted at the time and we now know was false.8 In 2005, the National Security Council released a study that concluded there was no second attack. What had been reported as a second attack consisted of late signals coming from the first.9 Johnson used stealth and deception to escalate 1 For readers who may regard this subhead as disrespectful of Presidents, doubletalk is defined as ''language that appears to be earnest and meaningful but in fact is a mixture of sense and nonsense; inflated, involved, and often deliberately ambiguous language.'' For Presidential deception on war powers from James Polk to the present, see Louis Fisher, ''When Wars Begin: Misleading Statements by Presidents,'' 40 Pres. Stud. Q. 171 (2010), available at http:// www.loufisher.org/docs/wi/432.pdf. 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand, ed. 1966). 3 John Jay, Federalist No. 4, The Federalist 101 (Benjamin F. Wright, ed., MetroBooks 2002). 4 Michael J. Glennon, ''The Cost of 'Empty Words': A Comment on the Justice Department's Libya Opinion,'' Harv. Sec. J. Forum, April 14, 2011, at 7, available at http://harvardnsj.com/ 2011/04/the-cost-of-empty-words-a-comment-on-the-justice-departments-libya-opinion. 5 Public Papers of the Presidents, 1950, at 504. On July 13, at a news conference, President Truman again called the Korean war a ''police action.'' Id. at 522. 6 ''Military Situation in the Far East'' (Part 3), hearings before the Senate Committees on Armed Services and Foreign Relations, 82d Cong., 1st Sess. 2014 (1951). 7 Weissman v. Metropolitan Life Ins. Co., 112 F.Supp. 420, 425 (S.D. Cal. 1953). See also Gagliomella v. Metropolitan Life Ins. Co., 122 F.Supp. 246 (D. Mass. 1954); Carius v. New York Life Insurance Co., 124 F.Supp. 388 (D. Ill. 1954); Western Reserve Life Ins. Co. v. Meadows, 261 S.W.2d 554 (Tex. 1953); and A. Kenneth Pye, ''The Legal Status of the Korean Hostilities,'' 45 Geo. L. J. 45 (1956). 8 Louis Fisher, Presidential War Power 129-33 (2d ed. 2004). 9 Robert J. Hanyok, ''Skunks, Bogies, Silent Hounds, and the Flying Fish: The Gulf of Tonkin Mystery, 2-4 August 1964,'' Cryptologic Quarterly, declassified by the National Security Agency on November 3, 2005, available at http://www.nsa.gov/publiclinfo/lfiles/gulflofltonkin/articles/rel1lskunkslbogies.pdf. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 44 the war, forever damaging his Presidency. He learned that being a War President is not the same as being a Great President. In 1998, during a visit to Tennessee State University, Secretary of State Madeleine Albright took a question from a student who wanted to know how President Bill Clinton could go to war against Iraq without obtaining authority from Congress. She explained: ''We are talking about using military force, but we are not talking about a war. That is an important distinction.'' 10 Iraqis subjected to repeated and heavy bombings from U.S. cruise missiles understood the military operation as war. These distinctions can be easily manipulated to meet the political needs of the moment. The above examples provide some context for understanding the efforts of the Obama administration to define and redefine such words as ''authorization,'' ''war,'' ''hostilities,'' ''nonkinetic,'' and ''mandate.'' 1. ''AUTHORIZATION'' FROM THE SECURITY COUNCIL President Obama and his legal advisers repeatedly state that he received ''authorization'' from the U.N. Security Council to conduct military operations in Libya. On March 21, he informed Congress that U.S. military forces commenced military initiatives in Libya as ''authorized by the United Nations (U.N.) Security Council. . . .'' 11 His administration regularly speaks of ''authorization'' received from the Security Council. As I have explained in earlier studies, it is legally and constitutionally impermissible to transfer the powers of Congress to an international (U.N.) or regional (NATO) body.12 The President and the Senate through the treaty process may not surrender power vested in the House of Representatives and the Senate by Article I. Treaties may not amend the Constitution. In a May 20 letter to Congress, President Obama spoke again about ''authorization by the United Nations Security Council.'' He said that congressional action supporting the military action in Libya ''would underline the U.S. commitment to this remarkable international effort.'' Moreover, a resolution by Congress ''is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter. It has always been my view that it is better to take military action, even in limited actions such as this, with congressional engagement, consultation, and support.'' If that has always been his view, it was his obligation to come to Congress in February to seek legislative authorization. 2. ''AUTHORIZATION'' FROM NATO On March 28, in an address to the Nation, President Obama announced that after U.S. military operations had been carried out against Libyan troops and air defenses, he would ''transfer responsibilities to our allies and partners.'' NATO ''has taken command of the enforcement of the arms embargo and the no-fly zone.'' 13 Two days earlier, State Department Legal Adviser Harold Koh spoke of this transfer to NATO: ''All 28 allies have also now authorized military authorities to develop an operations plan for NATO to take on the broader civilian protection mission under Resolution 1973.'' 14 The May 20 letter from President Obama to Congress explained that by April 4 ''the United States had transferred responsibility for the military operations in Libya to the North Atlantic Treaty Organization (NATO) and the U.S. involvement has assumed a supporting role in the coalition's efforts.'' Nothing in these or any other communications from the administration can identify a source of authorization from NATO for military operations. Like the U.N. Charter, NATO was created by treaty. The President and the Senate through the 10 Barton Gellman, ''Students Receive Albright Politely,'' Washington Post, February 20, 1998, at A19. 11 Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, March 21, 2011, available at http://www.whitehouse.gov/ the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya. 12 Louis Fisher, ''Obama's U.N. Authority?'', National Law Journal, April 18, 2011, available at http://www.loufisher.org/docs/wp/authority.pdf; Louis Fisher, ''Sidestepping Congress: Presidents Acting Under the U.N. and NATO,'' 47 Case Western Res. L. Rev. 1237 1997), available at http://www.loufisher.org/docs/wp/424.pdf; Louis Fisher, ''The Korean War: On What Legal Basis Did Truman Act?'', 89 Am. J. Int'l L. 21 (1995), available at http://www.loufisher.org/docs/ wp/425.pdf. 13 Remarks by the President in Address to the Nation on Libya, March 28, 2011, at 2, available at http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-address-nationlibya. 14 Harold Hongju Koh, Legal Adviser U.S. Department of State, ''Statement Regarding Use of Force in Libya,'' March 26, 2011, appearing before the American Society of International Law Annual Meeting, at 2, available at http://www.state.gov/s/l/releases/remarks/159201.htm. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 45 treaty process may not shift the authorizing function from Congress to outside bodies, whether the Security Council or NATO. Section 8 of the War Powers Resolution specifically states that authority to introduce U.S. Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances ''shall not be inferred . . . from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.'' 15 The authorizing body is always Congress, not the Security Council or NATO. 3. MILITARY OPERATIONS IN LIBYA: NOT A ''WAR'' The Obama administration has been preoccupied with efforts to interpret words beyond their ordinary and plain meaning. On April 1, the Office of Legal Counsel reasoned that ''a planned military engagement that constitutes a 'war' within the meaning of the Declaration of War Clause may require prior congressional authorization.'' But it decided that the existence of ''war'' is satisfied ''only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a significant period.'' 16 Under that analysis, OLC concluded that the operations in Libya did not meet the administration's definition of ''war.'' If U.S. casualties can be kept low, no matter the extent of physical destruction to another nation and loss of life, war to OLC would not exist within the meaning of the Constitution. If another nation bombed the United States without suffering significant casualties, would we call it war? Obviously we would. When Pearl Harbor was attacked on December 7, 1941, the United States immediately knew it was at war regardless of the extent of military losses by Japan. 4. NO ''HOSTILITIES'' UNDER THE WPR In response to a House resolution passed on June 3, the Obama administration on June 15 submitted a report to Congress. A section on legal analysis (p. 25) determined that the word ''hostilities'' in the War Powers Resolution should be interpreted to mean that hostilities do not exist with the U.S. military effort in Libya: ''U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors.'' This interpretation ignores the political context for the War Powers Resolution. Part of the momentum behind passage of the statute concerned the decision by the Nixon administration to bomb Cambodia.17 The massive air campaign did not involve ''sustained fighting or active exchanges of fire with hostile forces,'' the presence of U.S. ground troops, or substantial U.S. casualties. However, it was understood that the bombing constituted hostilities. According to the administration's June 15 report, if the United States conducted military operations by bombing at 30,000 feet, launching Tomahawk missiles from ships in the Mediterranean, and using armed drones, there would be no ''hostilities'' in Libya under the terms of the War Powers Resolution, provided that U.S. casualties were minimal or nonexistent. Under the administration's June 15 report, a nation with superior military force could pulverize another country (perhaps with nuclear weapons) and there would be neither hostilities nor war. The administration advised Speaker John Boehner on June 15 that ''the United States supports NATO military operations pursuant to UNSCR 1973. . . .'' 18 By its own words, the Obama administration is supporting hostilities. Although OLC in its April 1 memo supported President Obama's military actions in Libya, despite the lack of statutory authorization, it did not agree that ''hostilities'' (as used in the War Powers Resolution) were absent in Libya. Deprived of OLC support, President Obama turned to White House Counsel Robert Bauer and 15 87 Stat. 555, 558, sec. 8(a)(2) (1973). Justice Department, Office of Legal Counsel, ''Authority to Use Military Force in Libya,'' April 1, 2011, at 8, available at http://www.justice.gov/olc/2011/authority-military-use-inlibya.pdf. 17 Thomas F. Eagleton, War and Presidential Power: A Chronicle of Congressional Surrender 150-83 (1974). 18 Letter from the Department of State and Department of Defense to Speaker John A. Boehner, June 15, 2011, at 1. 16 U.S. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 46 State Department Legal Adviser Harold Koh for supportive legal analysis.19 It would have been difficult for OLC to credibly offer its legal justification. The April 1 memo defended the ''use of force'' in Libya because President Obama ''could reasonably determine that such use of force was in the national interest.'' OLC also advised that prior congressional approval was not constitutionally required ''to use military force'' in the limited operations under consideration.20 The memo referred to the ''destruction of Libyan military assets.'' 21 It has been recently reported that the Pentagon is giving extra pay to U.S. troops assisting with military actions in Libya because they are serving in ''imminent danger.'' The Defense Department decided in April to pay an extra $225 a month in ''imminent danger pay'' to service members who fly planes over Libya or serve on ships within 110 nautical miles of its shores. To authorize such pay, the Pentagon must decide that troops in those places are ''subject to the threat of physical harm or imminent danger because of civil insurrection, civil war, terrorism or wartime conditions.'' 22 Senator Richard Durbin has noted that ''hostilities by remote control are still hostilities.'' The Obama administration chose to kill with armed drones ''what we would otherwise be killing with fighter planes.'' 23 It is interesting that various administrations, eager to press the limits of Presidential power, seem to understand that they may not--legally and politically--use the words ''war'' or ''hostilities.'' Apparently they recognize that using words in their normal sense, particularly as understood by Members of Congress, Federal judges, and the general public, would acknowledge what the Framers believed. Other than repelling sudden attacks and protecting American lives overseas, Presidents may not take the country from a state of peace to a state or war without seeking and obtaining congressional authority. 5. NONKINETIC ASSISTANCE The Obama administration has distinguished between ''kinetic'' and ''nonkinetic'' actions, with the latter apparently referring to no military force. The March 21 letter from President Obama to Congress spoke of clearly kinetic activities. U.S. forces had ''targeted the Qadhafi regime's air defense systems, command and control structures, and other capabilities of Qadhafi's armed forces used to attack civilians and civilian populated areas.'' 24 By May 20, in a letter to Congress, President Obama stated: ''Since April 4, U.S. participation has consisted of: (1) nonkinetic support to the NATO-led operation. . . .'' Elements not directly using military force are listed: intelligence, logistical support, and search and rescue missions. However, the letter identified these continued applications of military force: ''aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone'' and ''since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.'' 25 6. SUPPORT FROM S. RES. 85 OLC in its April 1 memo relied in part on legislative support from the Senate: ''On March 1, 2011, the United States Senate passed by unanimous consent Senate Resolution 85. Among other things, the Resolution 'strongly condemn[ed] the gross and systematic violations of human rights in Libya, including violent attacks on protesters demanding democratic reforms,' 'call[ed] on Muammar Gadhafi to desist from further violence,' and 'urge[d] the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory.' '' 26 Action by ''unanimous consent'' suggests strong Senate approval for the resolution, but the legislative record provides no support for that impression. Even if there were evidence of strong involvement by Senators in drafting, debating, and adopting this language, a resolution passed by a single Chamber contains no statutory support. 19 Charlie Savage, ''2 Top Lawyers Lose Argument on War Power,'' New York Times, June 18, 2011, at A1. 20 OLC Opinion, supra note 16, at 1. 21 Id. at 6. 22 David A. Fahrenthold, ''Obama's Reasoning on Libya Criticized,'' Washington Post, June 21, 2011, at A8. 23 Id. 24 March 21, 2011, letter, supra note 11, at 2. 25 President Obama's Letter About Efforts in Libya, May 20, 2011, sent to Senate and House leaders John A. Boehner, Nancy Pelosi, Harry Reid, and Mitch McConnell, at 1. 26 OLC Opinion, supra note 16, at 2. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 47 In addition, passage of S. Res. 85 reveals little other than marginal involvement by a few Senators. Resolution 7 of S. Res. 85 urged the Security Council ''to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory.'' When was the no-fly language added to the resolution? Were Senators adequately informed of this amendment? There is evidence that they were not. The legislative history of S. Res. 85 is sparse. There were no hearings and no committee report. The resolution was not referred to a particular committee. Sponsors of the resolution included 10 Democrats (Bob Menendez, Frank Lautenberg, Dick Durbin, Kirsten Gillibrand, Bernie Sanders, Sheldon Whitehouse, Chuck Schumer, Bob Casey, Ron Wyden, and Benjamin Cardin) and one Republican (Mark Kirk). There was no debate on S. Res. 85. There is no evidence of any Senator on the floor at that time other than Senator Schumer and the presiding officer. Schumer asked for unanimous consent to take up the resolution. No one objected, possibly because there was no one present to object. Senate ''deliberation'' took less than a minute. When one watches Senate action on C-SPAN, consideration of the resolution began at 4:13:44 and ended at 4:14:19--after 35 seconds. On March 30, Senator John Ensign objected that S. Res. 85 ''received the same amount of consideration that a bill to name a post office has. This legislation was hotlined.'' 27 That is, Senate offices were notified by automated phone calls and e-mails of pending action on the resolution, often late in the evening when few Senators are present. According to some Senate aides, ''almost no Members knew about the no-fly zone language'' that had been added to the resolution.28 At 4:03 pm, through the hotlined procedure, Senate offices received S. Res. 85 with the no-fly zone provision but without flagging the significant change.29 Senator Mike Lee noted: ''Clearly, the process was abused. You don't use a hotline to bait and switch the country into a military conflict.'' 30 Senator Jeff Sessions remarked: ''I am also not happy at the way some resolution was passed here that seemed to have authorized force in some way that nobody I know of in the Senate was aware that it was in the resolution when it passed.'' 31 7. THE ''MANDATE'' FOR MILITARY ACTION IN LIBYA President Obama's speech to the Nation on March 28 stated that ''the United States has not acted alone. Instead, we have been joined by a strong and growing coalition. This includes our closest allies--nations like the United Kingdom, France, Canada, Denmark, Norway, Italy, Spain, Greece, and Turkey--all of whom have fought by our side for decades. And it includes Arab partners like Qatar and the United Arab Emirates, who have chosen to meet their responsibilities to defend the Libyan people.'' Over the month of March, ''the United States has worked with our international partners to mobilize a broad coalition, secure an international mandate to protect civilians, stop an advancing army, prevent a massacre, and establish a no-fly zone with our allies and partners.'' 32 Missing from this coalition and mandate was the institution of Congress. President Obama in this speech spoke of ''a plea for help from the Libyan people themselves.'' 33 He offered his support ''for a set of universal rights, including the freedom for people to express themselves'' and for governments ''that are ultimately responsive to the aspirations of the people.'' 34 Yet throughout this period there had been no effort by the President or his administration to listen to the American people or secure their support. On May 20, in a letter to Congress, President Obama said that he acted militarily against Libya ''pursuant to a request from the Arab League and authorization by the United Nations Security Council.'' The administration's June 15 submission to Congress claims that President Obama acted militarily in Libya ''with a mandate from the United Nations.'' There is only one permitted mandate under the U.S. Constitution for the use of military force against another nation that has not attacked or threatened the United States. That mandate must come from Congress. 27 157 Cong. Rec. S1952 (daily ed. March 30, 2011). 28 Conn Carroll, ''How the Senate Was Bait and Switched Into War,'' http://washington examiner-com/print/blogs/beltway-confidential/2011/04-how-senate-was-bait-and-switched-war. 29 Id. 30 Id. 31 157 Cong. Rec. S2010 (daily ed. March 31, 2011). 32 Remarks by the President in Address to the Nation on Libya, March 28, 2011, at 2, supra note 13. 33 Id. at 3. 34 34 Id. at 4. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 48 Senate Joint Resolution 20, introduced on June 21, is designed to authorize the use of U.S. armed force in Libya. In two places the resolution uses the word ''mandate.'' Security Council Resolution 1970 ''mandates international economic sanctions and an arms embargo.'' Security Council Resolution 1973 ''mandates 'all necessary measures' to protect civilians in Libya, implement a 'no-fly zone', and enforce an arms embargo against the Qaddafi regime.'' The Security Council cannot mandate, order, or command the United States. Under the U.S. Constitution, mandates come from laws enacted by Congress. The CHAIRMAN. Thank you very much, Mr. Fisher, a very effective summary. Thank you. Mr. Spiro. STATEMENT OF PETER SPIRO, CHARLES R. WEINER PROFESSOR OF LAW, TEMPLE UNIVERSITY, BEASLEY SCHOOL OF LAW, PHILADELPHIA, PA Mr. SPIRO. Thank you, Mr. Chairman. Good afternoon to you, Senator Lugar, and members of the committee. Thank you for the opportunity to testify before you today on the issue of Libya and war powers. In my view, U.S. participation in the Libya operation has been lawful. The President had constitutional authority to initiate U.S. participation in this operation without advanced congressional authorization. That participation continues to be lawful. The administration's interpretation of hostilities under the War Powers Resolution is a plausible one, although not free from doubt. I understand concerns on the part of Members of Congress with respect to this interpretation. Congressional participation in war powers decisionmaking is important to the successful execution of our national foreign relations. However, in my view, the War Powers Resolution does not supply a useful vehicle for facilitating interbranch cooperation. The CHAIRMAN. Mr. Spiro, if I could just interrupt you, I apologize. The vote started. I'm going to go over there and try to get them to prolong it a little bit so that you can finish your testimony, and Senator Lugar will have time, and Senator Shaheen, to get over. I'll try to back it up. I appreciate it. I did have some questions. I want to follow up, obviously. So they will certainly be part of the record, and we'll make a decision on when we'll be able to reconvene. I thank you. Mr. SPIRO. Should I continue, Senator? Yes. The War Powers Resolution does not supply a useful vehicle for facilitating interbranch cooperation. Congress and the President should leave aside their differences on the War Powers Resolution and work toward mutually acceptable terms for continued United States participation in the Libya operation. For all its notoriety, the War Powers Resolution has had little effect on war powers practice. The operative core of the resolution is the 60-day termination provision of section 5(b). The most notable episode implicating the 60-day clock was President Clinton's participation in the NATO bombing campaign in Kosovo. Participation in that operation continued more than 60 days after its initiation, notwithstanding the lack of specific statutory authorization. The Clinton administration asserted that congressional funding for the operation satisfied the requirements of the War Powers VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 49 Resolution. This was a questionable argument on its own terms, but Congress and other actors accepted the continuation of the bombing past the 60-day window. In the absence of specific appropriations for the Libya operation, President Obama lacks that sort of argument. Instead, the administration argues that participation in the Libya operation does not rise to the level of ''hostilities'' for purposes of the act and the section 5(b) trigger. I have three observations with respect to this question. First, and here I echo the Legal Adviser, plain language approaches to textural meanings seem particularly inappropriate in the context of war powers. As with parallel constitutional understandings, statutory measures relating to national security and military force are likely to be interpreted in light of practice and historical precedent, as much as through language. Second, practice relating to the War Powers Act renders the administration's interpretation a plausible one. As the Legal Adviser has detailed for you this morning, there are historical precedents suggesting a narrower interpretation of hostilities than might be expected from an everyday understanding of the term. Third, that is not to say that the administration's position is necessarily the better one. Members of this committee and the Senate as a whole do not have to accept that position. The contrary position is also reasonable. There is insufficient practice and other evidence definitively to resolve the question either way as applied to the Libya operation. Congress could make clear through a formal institutional pronouncement that it rejects the administration's interpretation of hostilities. But finally, it is not clear how pressing the hostilities question serves the institutional self-interest of the legislative branch. On the one hand, I believe that any President faced with the winding down of the 60-day clock would identify some justification for avoiding the terms of section 5(b). No responsible chief executive would terminate a military operation deemed in the national interest in the face of congressional inaction. If not authorization gleaned from a funding measure, if not an argument relating to the definition of hostilities, then some other avenue would present itself to evade the termination provision. Section 5(b) is unlikely ever to be given effect, nor will the judiciary ever enforce it. Does this mean that section 5(b) is unconstitutional? That may be a question better left to the court of history. Presidents have good cause to avoid constitutional showdowns where more minimalist arguments will serve the same ends. It is my understanding that the administration has not affirmed the constitutionality of the War Powers Resolution. It's been quite careful, in fact, not to concede the question. On the other hand, Congress has no real need of the section 5(b) provision or the rest of the War Powers Act for that matter. Congress has ample tools with which to control Presidential deployments of U.S. Armed Forces. In any event, devising a position of the Congress with respect to the operation in Libya should be the primary task at hand. Disputes relating to the War Powers Resolution are likely to distract from that undertaking. The persistent VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 50 cloud over the act underlines the perception among some that Congress is ill-equipped in this realm. Congress would be better served by focusing on other institutional tools for participating in the full spectrum of military deployment and use of force decisions. Thank you, Mr. Ranking Member. [The prepared statement of Mr. Spiro follows:] PREPARED STATEMENT OF PETER J. SPIRO Good morning, Mr. Chairman, Senator Lugar, and members of the committee. Thank you for the opportunity to testify before you today on the issue of Libya and war powers. For the record, I am the Charles Weiner Professor of Law at Temple University Law School, where I teach subjects relating to international and constitutional law. From 2004-2006, I was Rusk Professor of International Law at the University of Georgia Law School. I am a former law clerk to Judge Stephen F. Williams on the U.S. Court of Appeals for the D.C. Circuit and to Justice David H. Souter of the Supreme Court of the United States. I have also served as an Attorney-Adviser in the Office of the Legal Adviser, U.S. Department of State, as well as Director for Democracy on the staff of the National Security Council. I am currently a member of the Advisory Committee on Historical Diplomatic Documentation, U.S. Department of State. Among other subjects, I have published widely on matters relating to foreign affairs and the Constitution. In my view, U.S. participation in NATO operations in Libya has been lawful. The President had constitutional authority to initiate U.S. participation in these operations without advance congressional authorization. That participation continues to be lawful. The administration's interpretation of ''hostilities'' under the War Powers Resolution is a plausible one, although not free from doubt. I understand concerns on the part of members of Congress with respect to this interpretation. In my view, however, it is not clear that the definition of ''hostilities''--which becomes operable only through the contested 60-day termination provision of section 5(b)--meaningfully bears on the legality of the U.S. participation in the NATO campaign. The legality of the Libya operation in the absence of congressional authorization is not to diminish the importance of congressional participation in war powers decisionmaking. Nor does it mean that war powers comprises a constitutional black hole. The rule of law is a central feature of our system for addressing questions relating to the use of force. There are important respects in which congressional participation is constitutionally demanded. However, I do not believe that the War Powers Resolution affects the constitutional balance of powers with respect to the use of force. WPR-related disputes such as the one you are considering today distract from key decisions on which the collective judgment of the executive and legislative branches remains essential. Congress and the President should leave aside their differences on the War Powers Resolution and work toward mutually acceptable terms for continued U.S. participation in NATO operations in Libya. CONSTITUTIONAL PARAMETERS The constitutional division of war powers cannot be measured with calipers. The courts have largely absented themselves from matters implicating war powers. Judicial nonparticipation makes sense as a matter of institutional capacity. It does, however, lead to a paucity of authoritative pronouncements on the division of war powers. Against this landscape, historical practice supplies the precedents that guide our contemporary understandings of war powers. As Justice Frankfurter famously observed in the Steel Seizure case, these precedents add to the written Constitution ''a gloss which life has written upon them.'' While not unchanging, historical practice relating to war powers has proved remarkably consistent. This practice can be reduced to three basic principles. 1. For major engagements, the President must as a constitutional matter secure congressional authorization in advance. This explains why both George W. Bush and George H.W. Bush sought congressional authorization before initiating military action in Kuwait and Iraq. This was not simply a matter of politics; it was a matter of constitutional necessity. Where the use of U.S. Armed Forces is likely to implicate a major commitment of resources over an extended period of time with a risk of substantial casualties, our constitutional system demands the prior assent of the legislative branch. 2. For less significant engagements, on the other hand, the President is constitutionally empowered to deploy U.S. forces without congressional authorization. On VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 51 numerous occasions throughout U.S. history, Presidents have undertaken deployments involving the use or potential use of force without congressional approval. From recent decades, we have examples including Kosovo, Bosnia, Haiti, Panama, the so-called Tanker war of the mid-1980s, the 1986 bombing of Tripoli, Lebanon, and Grenada, among others. This practice is consistent and has been engaged in with the knowledge and acquiescence of the legislative branch. It establishes a clear constitutional standard with respect to the division of war power. This standard reflects the imperatives of the use of force against the landscape of foreign relations and the national interest: the need for dispatch and flexibility that conforms to the institutional capacities of the Presidency. The practice supports the constitutionality of President Obama's decision to participate in the Libya operation without advance congressional authorization. Because the operation is limited in nature, scope, and duration, it fits comfortably within the practice relating to the use of force short of ''real war.'' In my view, the opinion of the Office Legal Counsel of April 1, 2011, on this question is persuasive. This conclusion is confirmed by the lack of any persistent institutional opposition to the initial decision. The distinction between major and lesser engagements also explains why comparisons between the approaches of Presidents Bush and Obama to Iraq and Libya respectively are misplaced. The two episodes are constitutional apples and oranges. Iraq involved a massive commitment of resources, with grave risks to U.S. Armed Forces. Though hardly trivial, Libya lies toward the other end of the constitutional spectrum. The distinction is material for constitutional purposes. 3. Finally, Congress has the power to terminate or condition particular military engagements through engagement-specific, affirmative legislation. This power is exercised subject to the President's exclusive authorities as Commander in Chief over military decisionmaking, reasonably conceived. Joint resolutions respecting U.S. deployments in Lebanon and Somalia supply recent historical examples in which Congress imposed temporal limitations on the use of U.S. Armed Forces. Congress could impose such limitations with respect to the Libya operation. Congress also has the power to issue institutional pronouncements through nonbinding pronouncements. These institutional statements are of constitutional consequence. For instance, the formal condemnation by the House of Representatives of President Polk's initiation of the conflict with Mexico in 1848 evidenced its rejection of the constitutionality of that engagement. As in any area of constitutional law, but especially in the absence of judicial decisions, these categories supply only an outline of the law. The boundaries of these categories are unstable and subject to revision and evolution, especially in the face of changing background conditions. However, there is a remarkable consistency to the practice. This consistency suggests workability. The consistency also suggests an acceptance of the practice as legitimate by all relevant constitutional actors, the Congress and President centered among them. THE WAR POWERS RESOLUTION For all its notoriety, the War Powers Resolution has had little effect on war powers practice. From appearances, the act has marked the front lines of contests between Congress and the President over war powers. In reality, disputes relating to the War Powers Resolution are better characterized as skirmishes. The act has not materially affected the terms of continuing struggles between the executive and legislative branches relating to war powers. Nor should it. The act reflected the moment of its creation in 1973, an anomalous one marking a nadir in congressional-executive relations. The act has changed Presidential behavior in only one notable respect, through the reporting requirement of section 4. It is now a routine and accepted practice for Presidents to report uses of force as well as substantial combat deployments to the congressional leadership. This requirement is unexceptional and advances important transparency values. In section 3, the act also codifies a historical tradition of consultation by the President with Congress in all possible instances. But in other respects, the act has proved unable to shift constitutional understandings as developed through the practice. This works in both directions. By its terms, the act ostensibly gives the President a 60-day window in which to undertake any use of force, regardless of magnitude, without congressional authorization. Both George H.W. Bush and George W. Bush could have, consistent with the War Powers Resolution, undertaken major military engagements against Iraq without prior congressional authorization. And yet the failure to secure advance congressional authorization in those cases would have vio- VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 52 lated prevailing constitutional standards. The War Powers Resolution, in other words, cannot validate what would otherwise constitute Presidential overreaching. On the other side, the act has not subtracted from Presidential powers. In its policy statement, for instance, the act fails to recognize the protection of U.S. citizens as a justification for the use of military force. That has not stopped Presidents from justifying military engagements on that basis, consistent with longstanding practice. Nor have subsequent Congresses rejected that justification. The 60-day termination provision of section 5(b) comprises the act's most controversial provision. It has been accepted as constitutional only by President Carter (and then only in passing, in a single paragraph of an OLC opinion). Section 5(b) was tested by President Clinton in the context of the 1992-93 Somalia deployment. On only one occasion has Congress acted to authorize a deployment on its understanding of a section 5(b) deadline, with respect to the 1982-83 Lebanon peacekeeping deployment. The most notable episode implicating the 60-day clock was President Clinton's participation in the NATO bombing campaign in Kosovo. Participation in that operation, as with the Libya operation, continued more than 60 days after its initiation in the absence of specific statutory authorization. In that case the Office of Legal Counsel asserted that congressional funding for the operation satisfied the requirements of the War Powers Resolution, notwithstanding the section 8(a) requirement that authorization not be inferred from appropriations. This was a questionable argument on its own terms. It was a central objective of the War Powers Resolution to end authorization through appropriations measures, on the theory that Congress would never cut off the funding of U.S. troops in the field. Bills to extend specific authorization for the Kosovo operation consistent with section 8(a) failed to pass. In the end Congress and other actors accepted the continuation of the bombing past the 60-day window. That was as it should have been. I will not rehearse here at length the structural arguments against the termination provision of section 5(b). Suffice it to say that inaction may not equate with disapproval, as demonstrated by contradictory actions on Congress' part during the Kosovo operation (and in the House last week with respect to Libya). Military decisionmaking should not be driven on a prospective basis by legislative default devices. The stakes are too high to be governed by the dead hand of legislation enacted to address the difficulties of another era. ''Hostilities'' Under the War Powers Resolution In the absence of funding specific to the Libya operation, President Obama lacks the sort of argument that President Clinton made with respect to the Kosovo campaign. Instead, the administration argues that the participation in the Libya operation does not rise to the level of ''hostilities'' for purposes of the act and the section 5(b) trigger. I have three observations with respect to this question. First, plain language approaches to textual meanings seem particularly inappropriate in the context of war powers. In parallel to the evolution of constitutional understandings, statutory measures relating to national security and military force are likely to be interpreted in light of practice and historical precedent as much as through language. The War Powers Resolution should not be addressed in the way one would address the tax code. Second, practice relating to the War Powers Act renders the administration's interpretation a plausible one. As the Legal Adviser has detailed for you this morning, there are historical precedents suggesting a narrower interpretation of the term ''hostilities'' than might be expected from an everyday understanding of the term. (It is unfortunate that this full explanation has waited until today, however, to the extent that others have been able to fill an explanatory vacuum.) Third, that is not to say that the administration's position is necessarily the better one. Members of this committee and the Senate as a whole do not have to accept that position. The contrary position is also reasonable. There is insufficient practice and other evidence definitively to resolve the question either way as applied to the particulars of U.S. participation in NATO operations in Libya. To the extent that Congress makes clear, through a formal institutional pronouncement (as opposed to isolated statements of particular members), that it rejects the administration's interpretation of ''hostilities,'' then the case will stand at best as a contested precedent, one to be resolved, perhaps, in future episodes. But, finally, it is not clear how pressing the ''hostilities'' question buys Congress anything as an institution. In my view, it is not obviously in Congress' institutional self-interest to press the point. On the one hand, I believe that any President faced with the winding down of the 60-day clock would identify some justification for avoiding the terms of section 5(b). No responsible Chief Executive would terminate a military operation in the national interest in the face of congressional inaction. If not authorization gleaned from a funding measure, if not an argument relating VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 53 to ''hostilities,'' then some other avenue would present itself to evade the termination provision. Section 5(b) is unlikely ever to be given effect. Nor will the judiciary ever enforce it. Call it death by a thousand cuts. Does this mean that section 5(b) is unconstitutional? That question may better be left to the court of history. Although Presidents may not declare the act unconstitutional, from the Reagan administration onward they have been careful not to concede the point. They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end. On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution. Congress has ample tools with which to control Presidential deployments of U.S. Armed Forces. As the nature of military engagement migrates away from the use of ground forces, at least in limited conflicts, Congress will be able to use the appropriation mechanism with less fear of leaving U.S. forces in harm's way. The nature of these engagements, often in the name of the international community, will also give Congress more latitude to constrain Presidential action. In coming years we may well witness a trend toward greater congressional participation in decisions relating to the use of U.S. Armed Forces. In any event, devising a position of the Congress with respect to the operation in Libya should be the primary task at hand. Disputes relating to the War Powers Resolution are likely to distract from that undertaking. I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted. The persistent cloud over the act underlines the perception of some that Congress is ill-equipped in this realm. Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-offorce decisions. Thank you, Mr. Chairman, for the opportunity to present my views to you on this important subject. This is a critical juncture in the history of constitutional war powers. It is important that the Senate give these questions its closest consideration. Senator LUGAR [presiding]. Well, on behalf of the committee, I thank both of you for very important testimony, both your written testimony as well as these oral presentations this morning. I appreciate so much hearing both of you, and we will study carefully your papers. The hearing is adjourned. [Whereupon, at 12:18 p.m., the hearing was adjourned.] ADDITIONAL MATERIAL SUBMITTED RESPONSES OF FOR THE RECORD LEGAL ADVISER HAROLD KOH TO QUESTIONS SUBMITTED SENATOR RICHARD G. LUGAR BY Question. In a 1980 opinion regarding the War Powers Resolution, the Justice Department's Office of Legal Counsel wrote the following: We believe that Congress may, as a general constitutional matter, place a 60-day limit on the use of our Armed Forces as required by the provisions of ? 1544(b) of the resolution. The resolution gives the President the flexibility to extend that deadline for up to 30 days in cases of ''unavoidable military necessity.'' This flexibility is, we believe, sufficient under any scenarios we can hypothesize to preserve his constitutional function as Commander in Chief. The practical effect of the 60-day limit is to shift the burden to the President to convince the Congress of the continuing need for the use of our Armed Forces abroad. We cannot say that placing that burden on the President unconstitutionally intrudes upon his executive powers. Does this opinion continue to reflect the views of the executive branch with regard to the constitutionality of section 1544 (b) of the War Powers Resolution? If not, please indicate in what respects the views of the executive branch on this question have changed. Answer. Yes, the opinion continues to reflect the views of the executive branch. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 54 Question. The 1973 House committee report on the bill that became the War Powers Resolution states that, in the resolution's text, ''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.'' o Does the administration believe that U.S. forces are engaged in armed conflict in Libya? Answer. For purposes of international law, U.S. and NATO forces are engaged in an armed conflict in Libya. We are committed to complying with the laws of armed conflict, and we hold other belligerents in the conflict, including the Qadhafi regime, to the same standards. With regard to the language quoted from the House report, as I noted in my testimony, the report and the statute do not specifically define the term ''hostilities.'' My testimony cited other legislative history that reflects that, in the words of Senate sponsor Jacob Javits, Congress chose a term that ''accepts a whole body of experience and precedent without endeavoring specifically to define it.'' As a matter of established practice, ''hostilities'' determinations under the War Powers Resolution have been understood as requiring a factual inquiry into the circumstances and conditions of the military action in question, and particularly the expected dangers that confront U.S. forces. For the reasons set forth in my testimony, the administration believes that the United States supporting role in NATO Operation Unified Protector--which is limited in the nature of the mission, limited in the risk of exposure to United States Armed Forces, limited in the risk of escalation, and limited in the choice of military means--has not constituted the kind of ''hostilities'' envisioned by the resolution's 60-day pullout rule. This is a distinct inquiry from the legal tests for determining what constitutes an ''armed conflict'' under international law. Moreover, as I explained in my testimony, the definition of ''hostilities'' that we have used in this instance is consistent with the definition that one of my predecessors, Monroe Leigh, offered to Congress on behalf of the executive branch in 1975. The discussion between our two branches of government regarding the meaning of ''hostilities'' has been ongoing, but throughout, the Executive has not departed significantly from the understanding we supplied at that time. Question. Among the assistance U.S. forces are providing to enable NATO airstrikes in Libya are electronic warfare support, aerial refueling, and intelligence, surveillance and reconnaissance support. o If U.S. forces encountered persons providing assistance of this sort to Taliban or al-Qaeda forces in Afghanistan, would the administration consider that such persons were directly participating in hostilities against the United States under the laws of armed conflict? Answer. The laws of war provide that civilians, who as such are generally immune from attack in an armed conflict, can be targeted if and for such time as they take a direct part in hostilities. The precise contours of the concept of ''direct participation in hostilities''--reflected in Common Article 3 of the 1949 Geneva Conventions, Article 51 of Additional Protocol I of 1977, and Article 13 of Additional Protocol II of 1977--remain subject to considerable debate, and specific determinations as to when an individual is taking a direct part in hostilities are highly fact-dependent. This international law of war concept has not, however, generally been applied to determine whether U.S. forces are engaged in ''hostilities,'' as a matter of domestic law, for purposes of the War Powers Resolution. Question. At the outset of the Libya operations, the Department of Justice opined that the operations were anticipated to be limited in their ''nature, scope, and duration.'' On this basis, it concluded that the President did not require prior congressional authorization to initiate them. As I indicated in my opening statement, 3 months into our military involvement in Libya, the administration's assurances about the limited nature of the involvement ring hollow. American and coalition military activities have expanded to an all but declared campaign to drive Qadhafi from power. The administration is unable to specify any applicable limits to the duration of the operations. And the scope has grown from efforts to protect civilians under imminent threat to obliterating Libya's military arsenal, command and control structure, and leadership apparatus. Is it still the administration's view that the Libya operations are limited in their nature, scope, and duration? If so, please identify o The specific limits that apply to the nature of U.S. military operations in Libya; o The specific limits that apply to the scope of U.S. military operations in Libya, and o The specific limits that apply to the duration of U.S. military operations in Libya. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 55 Answer. It remains the administration's view that the Libya operations are limited in their nature, scope, and duration, such that prior congressional authorization was not constitutionally required for the President to direct this military action. These same limitations inform our analysis of the War Powers Resolution: As my testimony explained in detail, the combination of four limitations--the limited nature of (1) our military mission (playing a supporting role in a NATO-led coalition to enforce a United Nations Security Council Resolution that authorizes Member States to engage in civilian protection); (2) the exposure to our Armed Forces (who have not to date suffered casualties or been engaged in active exchanges of fire); (3) the risk of escalation (which is reduced by the absence of U.S. ground troops or regional opposition and by the existence of U.N. authorization, among other factors); and (4) the military means we have been using (confined to a discrete set of military tools, most of them nonkinetic)--all contributed to the President's determination that the 60-day pullout rule does not apply. The administration will continue to monitor the nature of U.S. involvement in the NATO operation to determine whether any further steps within the War Powers Resolution framework would be appropriate. Question. Some have suggested that if the administration were to acknowledge that the War Powers Resolution's definition of ''hostilities'' includes strikes by [unmanned] drones, the President would be constrained in his ability to carry out such strikes against members of al-Qaeda, including in Somalia. o Does the administration believe that the post-September 11 Authorization for the Use of Military Force (Pub. Law 107-40) provides congressional authorization for the use of force, including strikes by unarmed drones, against members of al-Qaeda in whatever foreign country they may be located? Answer. Following the horrific attacks of 9/11, the United States has been in an armed conflict with al-Qaeda and associated forces. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force against al-Qaeda, the Taliban, and associated forces in the 2001 Authorization for Use of Military Force. As I stated in a speech that I gave before the American Society of International Law on March 25, 2010, ''whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.'' See http://www.state.gov/s/l/releases/remarks/139119.htm. The choice of weaponry in a particular use of force is subject to a number of considerations; and in all cases, this administration reviews the rules governing targeting operations to ensure that U.S. operations are conducted consistent with law of war principles, including the principles of distinction and proportionality. Question. Section 2(b) of Public Law 107-40 states ''Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.'' In light of this provision, does the administration believe there is any doubt that applicable requirements under the War Powers Resolution for congressional authorization have been satisfied with respect to the use of military force, including strikes by [unmanned] drones, against members of alQaeda? Answer. The Administration does not believe there is any doubt that the 2001 congressional authorization for the Use of Military Force against al-Qaeda and associated forces authorizes all necessary and appropriate military force including the use of drones against members of al-Qaeda, consistent with the laws of armed conflict, and that such authorization is sufficient for purposes of the War Powers Resolution. Question. In a March 26 statement addressing the President's authority to initiate military operations in Libya, you stated that the Senate had passed a resolution, S. Res. 85, calling for a no-fly zone in Libya. The relevant language in the resolution ''urge[d] the United Nations Security Council to take such further action as may be necessary to protect civilians in Libya from attack, including the possible imposition of a no-fly zone over Libyan territory.'' Some have read your statement to suggest that the administration believes that S. Res. 85 authorized the President to use military force in Libya. This would be a puzzling interpretation given that the language in question was addressed to the U.N. Security Council, not the President, that it made no mention of any use of military force by the United States, and that it was contained in a nonbinding resolution of the Senate rather than a law enacted with the approval of the full Congress. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 56 o To avoid further confusion on this point, is it the administration's position that S. Res. 85 provided the President legal authorization to use force in Libya? Answer. I believed on March 26, as I do now, that S. Res. 85 was a significant measure, inasmuch as it reflected the Senate's unanimous recognition of the seriousness of the situation in Libya and of the potential value of establishing a no-fly zone, which the United States then helped to do. But it is not the administration's position--and I have never suggested--that S. Res. 85 provided the President legal authorization to use force in Libya. Question. Do you believe the President has been well served by not seeking congressional authorization for the Libya operations? What advantages do you perceive the President to have gained by proceeding without congressional authorization? Answer. While the President has concluded that congressional authorization was not legally required for U.S. participation in the Libya operations as they have progressed to date, he has also made clear that he would welcome such authorization, as it would present the world with a unified position of the U.S. Government, strengthen our ability to shape the course of events in Libya, and dispel any lingering legal concerns. More specifically, the President has expressed his strong support for S.J. Res. 20, as introduced by Chairman Kerry and 10 original cosponsors on June 21. He has also sought to ensure that the administration consult with Congress extensively throughout the operation. Question. On March 11, 2011, I wrote to Secretary Clinton to seek answers to questions about the administration's March 7 statement with regard to Article 75 of Additional Protocol I of the Geneva Conventions of 1949. That statement indicated that ''The U.S. Government will . . . choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.'' On May 18, 2011, I received a letter signed by the Acting Assistant Secretary of State for Legislative Affairs purporting to respond to my questions. The information contained with this letter was not responsive to my questions. Please respond to the following questions with regard to the administration's March 7 statement: o a. The statement indicates that the U.S. Government will ''choose out of a sense of legal obligation'' to treat the principles set forth in Article 75 as applicable in specified circumstances. (emphasis added) Please describe the source of the legal obligation referred to in the statement and the considerations that led the administration to conclude that such a legal obligation exists. o b. The statement indicates that the United States will treat the principles set forth in Article 75 as applicable ''to any individual it detains in an international armed conflict.'' (emphasis added) Does the administration regard these principles also to apply to noninternational armed conflicts, including the current armed conflict with al-Qaeda? If not, which of the considerations that led the administration to conclude that a legal obligation exists to apply Article 75 principles in international armed conflicts does the administration believe are inapplicable to noninternational armed conflicts? o c. Please explain the administration's understanding of the effect of the statement as a matter of international law, including any international legal obligations that may arise as a result of the statement. o d. Please explain the administration's understanding of the effect of the statement as a matter of U.S. law. Answer. The administration's statement of March 7, 2011, resulted from a comprehensive interagency review, including the Departments of Defense, Justice, and State, of current U.S. law and military practice. The statement also reflects the longstanding view of the United States that Article 75 contains fundamental guarantees of humane treatment (e.g., prohibitions against torture) to which all persons in the power of a party to an international armed conflict are entitled. In 1987, President Reagan informed the Senate that although the United States had serious concerns with Additional Protocol I, ''this agreement has certain meritorious elements . . . that could be of real humanitarian benefit if generally observed by parties to international armed conflicts.'' For this reason, he noted, the United States was in the process of developing appropriate methods for ''incorporating these positive provisions into the rules that govern our military operations, and as customary international law.'' As a general matter, the executive branch previously has taken the position that certain norms, including those reflected in treaties to which the United States is not a party (e.g., the Law of the Sea Convention, the Vienna Convention on the Law of Treaties), constitute customary international law. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 57 a. The administration determined that existing U.S. treaty obligations, domestic law, and regulations related to the treatment of detainees in armed conflict substantially overlap with the obligations that Article 75 imposes on States Party to Additional Protocol I. Examples of where many of the provisions of Article 75 are already reflected in existing U.S. law and regulations include: Common Article 3 of the 1949 Geneva Conventions; the 1949 Geneva Convention Relative to the Treatment of Prisoners of War; the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the War Crimes Act of 1996, as amended; the Detainee Treatment Act of 2005; the Military Commissions Act of 2009; the Uniform Code of Military Justice; DOD Directive 2310.01E (''The Department of Defense Detainee Program''); and Army Regulation 190-8 (''Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees''). Consistent with this set of existing and overlapping requirements in U.S. law, the administration also determined that current U.S. military practices are fully consistent with the requirements of Article 75. Accordingly, the administration considered it appropriate to state that the United States will choose to abide by the principles set forth in Article 75 applicable to detainees in international armed conflicts out of a sense of legal obligation, and that we would expect other states to do the same. b. Following our March 7 statement, there was some speculation as to why we referred to the application of Article 75 specifically in the context of ''international armed conflict.'' The simple explanation is that Article 75 of Additional Protocol I, like all of Additional Protocol I, is intended by its terms to be applied to international armed conflict. Our statement should not be taken to suggest that similar protections should not apply in noninternational armed conflict. It only reflects the fact that corresponding protections with respect to noninternational armed conflict are memorialized elsewhere--in particular, in Common Article 3 of the 1949 Geneva Conventions and Articles 4 through 6 of Additional Protocol II, both of which apply to noninternational armed conflicts. Although the United States is not yet party to Additional Protocol II, as part of the review process described above, the administration, including the Departments of State, Defense, and Justice, also reviewed its current practices with respect to Additional Protocol II, and found them to be fully consistent with those provisions, subject to reservations, understandings, and declarations that were submitted to the Senate in 1987, along with refinements and additions that we will submit. Accordingly, on March 7, 2011, the administration also announced its intent to seek Senate advice and consent to ratification of Additional Protocol II as soon as practicable. We believe that ratification of Additional Protocol II will be an important complement to the step we have taken with respect to Article 75. We look forward to working with you, as ranking member of the Senate Foreign Relations Committee, on this most important matter. c. As a matter of international law, the administration's statement is likely to be received as a statement of the U.S. Government's opinio juris as well as a reaffirmation of U.S. practice in this area. The statement is therefore also likely to be received as a significant contribution to the crystallization of the principles contained in Article 75 as rules of customary international law applicable in international armed conflict. Determining that a principle has become customary international law requires a rigorous legal analysis to determine whether such principle is supported by a general and consistent practice of states followed by them from a sense of legal obligation. Although there is no precise formula to indicate how widespread a practice must be, one frequently used standard is that state practice must be extensive and virtually uniform, including among States particularly involved in the relevant activity (i.e., specially affected States). The U.S. statement, coupled with a sufficient density of State practice and opinio juris, would contribute to creation of the principles reflected in Article 75 as rules of customary international law, which all States would be obligated to apply in international armed conflict. (The 168 States that are party to Protocol I are of course already required to comply with Article 75 as a matter of treaty law.) e. As discussed above, the administration's statement followed from a determination that existing U.S. law and regulations impose requirements on U.S. officials that substantially overlap with the requirements of Article 75. The statement does not alter those statutory and regulatory requirements. If Article 75 were determined to be customary international law, it would have the same effect on U.S. law as other customary international legal norms. The United States has long recognized customary international law, whether reflected in treaty provisions or otherwise, as VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 58 U.S. law (see, e.g., the Supreme Court's discussion of customary international law in The Paquete Habana 175 U.S. 677 (1900)). RESPONSES OF LEGAL ADVISER HAROLD KOH TO QUESTIONS SUBMITTED SENATOR JAMES E. RISCH BY Question. Were U.S. actions during Operation Odyssey Dawn considered ''hostilities'' under your definition? Answer. During the initial phase of the Libya operation, under Operation Odyssey Dawn, our military actions in Libya were significantly more intensive, sustained, and dangerous than they have been since the handover to NATO's Operation Unified Protector. Had Odyssey Dawn lasted for more than 60 days, it may well have constituted ''hostilities'' under the War Powers Resolution's pullout provision. Question. Were any actions the United States took during Operation Unified Protector considered ''hostilities'' under your definition? Answer. For the reasons set forth in my testimony, the administration believes that the United States constrained, supporting role in Operation Unified Protectora--which is limited in the nature of the mission, limited in the risk of exposure to U.S. Armed Forces, limited in the risk of escalation, and limited in the choice of military means--has not constituted the kind of ''hostilities'' envisioned by the War Powers Resolution's 60-day pullout rule. Question. You testified that ''no casualties, no threat of casualties, no significant engagement'' of the U.S. military affirms your opinion that U.S. actions in Libya do not amount to ''hostilities'' envisioned by the War Powers Resolution. This position implies a threshold for a conflict to qualify as ''hostilities'' as contemplated by the War Powers Resolution. Please define that threshold? o You referenced in your testimony that the United States has dropped a limited number of munitions during strike missions, does your threshold of ''hostilities'' take into consideration the improved lethality of the individual ordinance used? o Does the amount of damage inflicted by U.S. forces matter in this equation? o Does the size of the force (manpower) trigger the invocation of the term ''hostilities''? Answer. My testimony explained the administration's position as to why the United States current military operations in Libya--which are limited in the nature of the mission, limited in the risk of exposure to United States Armed Forces, limited in the risk of escalation, and limited in the choice of military means--do not fall within the War Powers Resolution's automatic 60-day pullout rule. My testimony further explained that Congress in 1973 did not attempt to define a rigid threshold for ''hostilities'' to be applied mechanically to all situations. Nevertheless, our analysis does take into consideration the lethality of ordnance used, the damage inflicted by U.S. forces, and the size of the U.S. force, as reflected in its discussion of three factors: the military means, the nature of the mission, and the risk of escalation. As I explained during my testimony, if any of the critical facts regarding the underlying mission were substantially different, it might warrant reaching a different conclusion regarding the existence of ''hostilities.'' Question. You testified that we were not ''carpet bombing'' Libya and that the current number of drone strikes were insignificant to the threshold of ''hostilities.'' Beyond what you see as these clear lanes, what is the amount of force necessary to trigger the resolution's 60-day pullout requirement? Answer. With regard to drones, I stated unambiguously in my oral testimony that they do not get a ''free pass'' under the War Powers Resolution. The resolution, which by its terms focuses on the ''introduction of United States Armed Forces'' into ''hostilities,'' was not designed with unmanned aerial vehicles in mind, but that does not mean that drone strikes are insignificant to the threshold of hostilities, or that they can never trigger the 60-day rule. To the contrary, both the number and nature of U.S. drone strikes are significant to the ''hostilities'' determination, although in the abstract, it is difficult to state precisely what level of U.S. kinetic force, standing alone, would be sufficient to trigger the pullout provision in any given situation. Taking into account all of the factors in the current Libya operation that are identified in my testimony, the current use of drones in itself does not, in the administration's view, compel the conclusion that the resolution's automatic pullout provision is triggered. Question. You testified that the conflict has presented new military technology that was not envisioned by the drafters of the original bill. However, aerial refuel- VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 59 ing, ISR, and support flights are not new elements of conflict and were in use, in various forms, when the War Powers Resolution was debated and enacted in 1973. The War Powers Resolution specifically allows for an exception for activities supporting the command structure of organizations like NATO, but the activities listed above were not exempted out of the resolution's application. Doesn't the use of nonexempted forces mean, by implication, that the military is involved in hostilities outside of the exempted forces? Answer. I believe this question refers to sections 8(b) and 8(c) of the War Powers Resolution. As explained in footnote 13 of my testimony, sections 8(b) and 8(c) do not imply that all NATO activities in which the United States participates, no matter how modestly, must be subjected in their entirety to the 60-day clock. Those provisions set out certain parameters for when U.S. participation in the military activities of foreign forces would come within the ambit of the resolution. While the United States participation in this NATO operation is not exempted from the requirements of the resolution, my point in that footnote was that the U.S. forces in Libya--not the whole of NATO forces--are the proper subject for the ''hostilities'' analysis required by the resolution's language. I agree that support activities such as aerial refueling and ISR were known to the drafters of the War Powers Resolution, but I have not seen evidence to suggest that such nonkinetic activities would trigger the 60-day clock in the context of a NATO operation such as this. Question. Before the Libyan conflict began, U.S. military personnel serving on ships within 110 nautical miles of Libyan shores did not receive Hostile Fire and Imminent Danger pay for reasons linked to Libya. Today they do. So, too, do U.S. Air Force pilots flying sorties over Libya. If, in fact, the U.S. military is not engaged in ''hostilities,'' what is the administration's legal reason for giving $225 per month in extra pay to U.S. forces assisting with military actions associated with Operation Odyssey Dawn and Operation Unified Protector? Answer. As I explained in footnote 14 of my written testimony, the executive branch has long understood its application of the ''danger pay'' statute to be distinct from its application of the War Powers Resolution. Similar danger pay is being given to U.S. forces in Burundi, Greece, Haiti, Indonesia, Jordan, Montenegro, Saudi Arabia, Turkey, and many other countries in which no one is seriously contending that ''hostilities'' are occurring for purposes of the War Powers Resolution. Question. On what day did you reach your final conclusion that the United States was no longer engaged in ''hostilities''? When was it adopted by the President as the position of the administration? Answer. As you can understand, I cannot comment on the internal decisionmaking procedures of the President and the administration with respect to legal matters. However, it is a matter of public record, as Chairman Kerry noted in the hearing, that from the beginning of the Libya operation the administration stated that it intended to act consistently with the War Powers Resolution and has maintained that position throughout the operation. Question. Would you consider the bombing (attempted or actual) of a U.S. embassy by another nation-state ''a national emergency created by attack upon the United States, its territories or possessions, or its armed forces'' under the war powers act? Answer. Yes, I believe that an attempted or actual bombing of a United States embassy certainly could rise to that level, although no such event has occurred in Libya. I note, however, that the ''national emergency'' standard articulated in section 2(c) of the War Powers Resolution is not linked, either textually or logically, to the separate question of whether U.S. forces are in a situation of ''hostilities'' under sections 4(a)(1) and 5(b) of the resolution. By its plain terms, section 2(c) is also precatory in nature, and it has never been treated by the executive branch as having binding legal force. Question. Does President Obama ignoring the War Powers Resolution simply add to the history of ''a consistent pattern of executive circumvention of legislative constraint in foreign affairs,'' as you observed on page 38 of your book, ''The National Security Constitution''? Answer. I do not accept the premise that ''President Obama [is] ignoring the War Powers Resolution'' or otherwise trying to circumvent the legislative branch. To the contrary, as my testimony explained, throughout the Libya operation, the President has never claimed the authority to take the nation to war without congressional authorization, to violate the War Powers Resolution or any other statute, to violate international law, to use force abroad when doing so would not serve important national interests, or to refuse to consult with Congress on important war powers VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 60 issues. The administration recognizes that Congress has powers to regulate and terminate uses of force, and that the War Powers Resolution plays an important role in promoting interbranch dialogue and deliberation on these critical matters. The President has expressed his strong desire for congressional support, and has made clear his commitment to acting consistently with the resolution. Of critical importance in an area where the law is unsettled, he has done so transparently and in a manner that allows Congress to respond if it disagrees with his reading of the resolution. Question. Previous administrations have used an interagency process led by the Department of Justice's Office of Legal Counsel (OLC) to receive credible and objective legal advice, particularly regarding constitutional matters. During this process, OLC seeks input from multiple agencies before arriving at a conclusion. In order to justify continuing kinetic operations in Libya without congressional authorization, it appears President Obama decided truncate this process and associate himself with your legal opinion. Why did the administration choose this course of action? What precedent is he setting regarding the Executive's process for attaining credible and objective legal advice? Answer. As I explained during my testimony, I cannot comment on the internal decisionmaking procedures of the President or the administration. No one disputes two basic facts here--that President Obama made this decision, and that in the end it was the President's decision to make. Question. During your nomination hearing in April 2009, you testified before this committee that, because the U.N. ''soundly defeated'' a resolution calling NATO's action in Kosovo unlawful that was a de facto authorization of the NATO mission.1 Last week, the House of Representatives soundly rejected authorizing the President's use of force in Libya. Under your legal reasoning, shouldn't Congress's rejection of force also imply the President has no authority to be in Libya? Answer. No. To date, Congress has not acted in a way that would amount to ''rejection of force'' in Libya. Nor has Congress acted either to authorize or deauthorize the Libya operation. While the President has taken the position that congressional authorization was not legally required for the Libya operation as it has progressed thus far, he has also made clear that he would welcome such authorization. At my nomination hearing, I cited the overwhelming Security Council vote rejecting a resolution that would have deemed the use of force in Kosovo unlawful as one piece of evidence, among others, that the Kosovo intervention enjoyed international support--as the Libya operation clearly does by virtue of U.N. Security Council Resolution 1973 and the support of NATO, the Arab League, and the Gulf Cooperation Council, as well as Libya's own Transitional National Council. The House of Representatives' vote against a particular resolution authorizing the President to use force in Libya does not imply that the President lacks the domestic legal authority to be in Libya. Question. In response to questions in your nomination hearing, you criticized the Bush administration for not seeking a new U.N. resolution specifically authorizing the use of force in Iraq. You stated that ''I believe that one consequence of this lack of consensus as to whether the resolutions provided the necessary support was that it hindered U.S. efforts to attract as broad political support for our military actions in Iraq as we would have liked.'' 2 o Do you believe broad international support is sufficient to justify U.S. engagement in Libya? o Even if, as you argue, congressional authorization is not necessary, is it not prudent for the President to seek congressional authorization in order to ensure ''broad political support'' from the American people? Answer. As my testimony made clear, I do not believe that broad international support is alone sufficient to justify the legality of our engagement in Libya, although the nature and degree of international support might bear on factors that are relevant to the War Powers analysis in this case, such as the limited object and scope of our military mission and the limited risk of escalation. While the President has concluded that congressional authorization was not legally required for the Libya operation as it has progressed to date, he has also made clear that he would welcome such authorization, as it would present the world with a unified position of the U.S. Government, strengthen our ability to shape the course of events in Libya, and dispel any lingering legal concerns. More specifically, the President has 1 Senator 2 Senator VerDate Nov 24 2008 16:14 Nov 18, 2011 Jim DeMint, Question for the Record #10, April 28, 2009. Jim DeMint, Question for the Record #7, April 28, 2009. Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6621 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z 61 expressed his strong support for S.J. Res. 20, as introduced by Chairman Kerry and 10 original cosponsors on June 21. He has also sought to ensure that the administration consult with Congress extensively throughout the operation. Question. Referring to President Bush and the prospect for war with Iran, on December 4, 2007, then-Senator Joe Biden said, ''the President has no constitutional authority to take this Nation to war against a country of 70 million people, unless we're attacked or unless there is proof that we are about to be attacked. And if he does--if he does--I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.'' 3 Do you agree that it is an impeachable offense for the President to use force without prior congressional authorization unless we are attacked or under imminent threat of attack, as then-Senator Biden asserted in his statement? Answer. I believe that the question of an ''impeachable offense'' is highly factdependent and cannot be answered in such a general fashion. I would simply emphasize that both Republican and Democratic administrations have consistently taken the position over the past several decades that the President has constitutional authority to direct certain uses of force abroad to protect important national interests without prior congressional authorization, even in the absence of an attack or an imminent threat of attack. AE 3 Senator Joseph R. Biden Interviewed on MSNBC by Chris Matthews, Dec. 4, 2007, 2007, transcript accessed at http://www.msnbc.msn.com/id/22114621/ns/msnbcltv-hardballlwithl chrislmatthews/. VerDate Nov 24 2008 16:14 Nov 18, 2011 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6611 S:\HEARING FILES\112TH CONGRESS, 1ST\2011 HEARINGS GONE TO PRESS\062811-Z