Deployment of United States Armed Forces into Haiti

T h e P resid e n t p o sse sse d the leg al a u th o rity to d e p lo y U n ite d S ta te s A rm e d F o rc e s in to H aiti

T h e p la n n e d d e p lo y m e n t a cc o rd e d w ith th e sen se o f C o n g re ss, s a tisfie d the re q u ire m e n ts o f th e W ar
P o w ers R e s o lu tio n , an d w as not a " w a r" w ith in th e m e a n in g o f the C o n stitu tio n .

September 27, 1994
L e t t e r O p in io n f o r F o u r U n i t e d S t a t e s S e n a t o r s

I write in response to your letter of September 15, 1994, in which you requested
a copy or summary of any legal opinion that may have been rendered, orally or in
writing, by this Office concerning the lawfulness of the President's planned de-
ployment of United States military forces into Haiti. After giving substantial
thought to these abiding issues of Presidential and congressional authority, we con-
cluded that the President possessed the legal authority to order that deployment.
In this case, a combination o f three factors provided legal justification for the
planned deployment. First, the planned deployment accorded with the sense of
Congress, as expressed in section 8147 of the Department of Defense Appropria-
tions Act, 1994, Pub. L. No. 103-139, 107 Stat. 1418, 1474 (1993) ("Defense Ap-
propriations A ct"). That resolution expressed C ongress's sense that the President
would not require express prior statutory authorization for deploying troops into
Haiti provided that he first made certain findings and reported them to Congress.
The President did make the required findings and reported them. We concluded
that the resolution "evince[d] legislative intent to accord the President broad dis-
cretion" and l" invite[d]' 'measures on independent presidential responsibility.'"
D am es & M oore v. Regan, 453 U.S. 654, 678 (1981) (quoting Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)). Sec-
ond, the planned deployment satisfied the requirements o f the W ar Powers Resolu-
tion. Finally, after examining the circumstances, nature, scope, and duration o f the
anticipated deployment, we determined that it was not a "war" in the constitutional
sense. Specifically, the planned deployment was to take place with the full consent
of the legitimate government, and did not involve the risk of major or prolonged
hostilities or serious casualties to either the United States or Haiti. For those rea-
sons, which are set out in detail below, we concluded that the President had legal
and constitutional authority to order United Slates troops to be deployed into
Haiti.

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I.
First, the Haitian deploym ent accorded with the sense of Congress, as expressed
in section 8147 o f the D efense Appropriations A ct.1 That provision was sponsored
by, am ong others, Senators Dole, Simpson and Thurmond. See 139 Cong. Rec.
S14,021-22 (daily ed. Oct. 20, 1993).
Section 8147(b), 107 Stat. at 1474, o f the Act states the sense o f Congress that
"funds appropriated by this Act should not be obligated or expended for United
States military operations in Haiti" unless certain conditions (including, in the al-
ternative, prior Congressional authorization) were met. Section 8147(c), 107 Stat.
at 1475, however, added that
[i]t is the sense o f Congress that the limitation in subsection (b)
should not apply if the President reports in advance to Congress that
the intended deployment o f United States Armed Forces into
Haiti--
(1) is justified by United States national security
interests;
(2) will be undertaken only after necessary steps
have been taken to ensure the safety and security of
United States Armed Forces, including steps to en-
sure that United States Armed Forces will not be-
com e targets due to the nature o f their rules of
engagem ent;
(3) will be undertaken only after an assessment
that--
(A)
the proposed mission and objectives are
m ost appropriate for the United States Armed Forces
rather than civilian personnel or armed forces from
other nations, and

1
In sp ea k in g o f the d ep lo y m en t, we should be understood to include, not only the actual deploym ent
begun on S e p te m b e r 19, but also the military operation that w as planned, and in p a n initiated, before an
agreem ent w ith the H aitian m ilitary leadership w as negotiated o n Septem ber 18 by form er President Jim m y
C arter, S en ato r Sam N unn and G eneral C o h n Pow ell (the "S ep tem ber 18 agreem ent"). As the President
noted in his te lev ised ad d ress o f Septem ber 18, th a t agreem ent " w as signed after Haiti received evidence that
paratroopers from o u r 82nd A irb o rn e Division, based at Fort B ragg, North C arolina, had begun to load up to
begin the in v asio n w hich I had ordered to start this evening " T ext o f C lin to n 's A ddress, The W ashington
Post, Sept 19, 1994, at A 17

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D eploym ent o f U nited States A rm ed F orces into Haiti

(B) that the United States Armed Forces pro-
posed for deployment are necessary and sufficient to
accomplish the objectives of the proposed mission;
(4) will be undertaken only after clear objectives
for the deployment are established;
(5) will be undertaken only after an exit strategy
for ending the deployment has been identified; and
(6) will be undertaken only after the financial
costs of the deployment are estimated.
In short, it was the sense of Congress that the President need not seek prior
authorization for the deployment in Haiti provided that he made certain specific
findings and reported them to Congress in advance of the deployment. The Presi-
dent made the appropriate findings and detailed them to Congress in conformity
with the terms of the resolution. See Letter to the Speaker o f the United States
House of Representatives from the President (Sept. 18, 1994). Accordingly, this is
not, for constitutional purposes, a situation in which the President has "take[n]
measures incompatible with the expressed or implied will of Congress," Young-
stown, 343 U.S. at 637 (Jackson, J., concurring). Rather, it is either a case in
which the President has acted "pursuant to an . . . implied authorization of Con-
gress," so that "his authority is at its maximum," id. at 635, or at least a case in
which he may "rely upon his own independent pow ers" in a matter where Congress
has "enable[d], if not invite[d], measures on independent presidential responsibil-
ity." Id. at 637.

II.
Furthermore, the structure of the W ar Powers Resolution ("W PR") recognizes
and presupposes the existence of unilateral presidential authority to deploy armed
forces "into hostilities or into situations where imminent involvement in hostilities
is clearly indicated by the circum stances." 50 U.S.C. ? 1543(a)(1). The WPR
requires that, in the absence of a declaration of war, the President must report to
Congress within forty-eight hours of introducing armed forces into such circum-
stances and must terminate the use of United States armed forces within sixty days
(or ninety days, if military necessity requires additional time to effect a withdrawal)
unless Congress permits otherwise. Id. ? 1544(b). This structure makes sense only
if the President may introduce troops into hostilities or potential hostilities without

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prior authorization by the Congress: the W PR regulates such action by the Presi-
dent and seeks to set limits to it.2
To be sure, the W PR declares that it should not 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 circum stances." 50 U.S.C. ? 1547(d)(2). But ju st as clearly, the
W PR assu m es that the President already has such authority, and indeed the WPR
states that it is not "intended to alter the constitutional authority of the . . . Presi-
dent." Id. ? 1547(d)(1). Furthermore, although the W PR announces that, in the
absence o f specific authorization from Congress, the President may introduce
armed forces into hostilities only in "a national emergency created by attack upon
the United States, its territories or possessions, or its armed forces," id. ? 1541(c),
even the defenders o f the WPR concede that this declaration -- found in the
"Purpose and Policy" section of the W PR -- either is incomplete or is not meant to
be binding. See, e.g., Cyrus R. Vance, Striking the Balance: C ongress an d the
P residen t U nder the W ar Powers R esolution, 133 U. Pa. L. Rev. 79, 81 (1984).3
The W PR was enacted against a background that was "replete with instances of
presidential uses o f military force abroad in the absence of prior congressional
approval." P resid en tia l P ow er to U se the A rm ed F orces A b ro a d Without Statutory
A u th orization, 4A Op. O.L.C. 185, 187 (1980). W hile Congress obviously sought
to structure and regulate such unilateral deploym ents,4 its overriding interest was to
prevent the United States from being engaged, without express congressional
authorization, in m ajor, prolonged conflicts such as the wars in Vietnam and Ko-
rea, rather than to prohibit the President from using or threatening to use troops to
achieve im portant diplom atic objectives where the risk of sustained military con-
flict was negligible.

2 It should be em p h asized that this A d m in istratio n has not yet had to face the difficult constitutional
issues raised by the p ro v isio n o f the WPR, 50 U .S .C ? 1544(b), that requires w ithdraw al of forces after sixty
days inv o lv em en t in h o stilities, absent congressional authorization.
3 T h e W P R om its, fo r ex am p le, any m ention o f the P resid e n t's pow er to rescue A m ericans; yet even the
C o m p tro lle r G en eral, an a g en t o f Congress, h as acknow ledged both that "the w eight o f authority" supports
the p o sitio n th at ''the P resident does possess som e unilateral constitutional pow er to use force to rescue
A m e ric a n s," an d lhat ? 1541(c) "does not in a strict sense o perate to restrict such authority." 55 C om p G en
1081, 1083, 1085 (1 976) S e e also Peter R av en -H an sen and W illiam C. Banks, P ulling the Purse Strings o f
the C o m m a n d e r in C hief, 8 0 Va. L. Rev. 8 3 3 , 879 (1 9 9 4 ) (" [a] custom o f executive deploym ent o f arm ed
force for rescu e and p ro tectio n o f A m ericans abroad has dev elo p ed at least since 1790" ); id. at 917-18
(" [s]ince 1868 the so -called H ostage Act has authorized and req u ired the P resident to 'use such m eans, not
am ou n tin g to acts o f w ar, as he may think necessary and p ro p er to obtain or effectuate [the] release' o f
A m erican c itiz en s 'unjustly d eprived of [their] liberty by o r un d er the authority o f any foreign governm ent.'
. [T ]he H o stag e A ct lends fu rth er support to custom and m ay constitute congressional autho n zatio n for at
least this lim ited d efen siv e w ar p o w e r'')
4 E ven th o u g h the P resid en t has the in h eren t pow er to dep lo y troops abroad, including into situations o f
h o stilities, C o n g ress m ay, w ithin constitutional lim its, regulate the exercise o f that pow er See, e.g., S a n ti-
ag o v N o g u era s, 214 U S 260, 266 (1909) (P resid en t had p o w er lo institute m ilitary governm ent in o c cu -
pied territo ries unul fu rth er action by C o n g ress); The Thom as G ibbons, 12 U.S (8 C ranch) 421, 427-28
(1814).

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D eploym ent o f United States A rm ed F orces into Haiti

Further, in establishing and funding a military force that is capable o f being
projected anywhere around the globe, Congress has given the President, as Com-
mander in Chief, considerable discretion in deciding how that force is to be de-
ployed.5 See Johnson v. E isen trager , 339 U.S. 763, 789 (1950); cf. M aul v. U nited
States, 274 U.S. 501, 515-16 (1927) (Brandeis and Holmes, JJ., concurring)
(President "may direct any revenue cutter to cruise in any waters in order to per-
form any duty of the service"). By declining, in the W PR or other statutory law, to
prohibit the President from using his conjoint statutory and constitutional powers
to deploy troops into situations like that in Haiti, Congress has left the President
both the authority and the means to take such initiatives.
In this case, the President reported to Congress, consistent with the W PR, that
United States military forces, together with units supplied by foreign allies, began
operations in Haitian territory, including its territorial waters and airspace. The
President stated in his report that he undertook those measures "to further the na-
tional security interests of the United States; to stop the brutal atrocities that
threaten tens of thousands of Haitians; to secure our borders; to preserve stability
and promote democracy in our hemisphere; and to uphold the reliability o f the
commitments we make, and the commitments others make to us, including the
Governors Island Agreement and the agreement concluded on Septem ber 18 in
Haiti." Letter to the Speaker of the United States House of Representatives from
the President at 2 (Sept. 21, 1994). We believed that the deployment was fully
consistent with the W PR, and with the authority Congress reserved to itself under
that statute to consider whether affirmative legislative authorization for the con-
tinuance of the deploym ent should be provided.

III.
Finally, in our judgm ent, the Declaration of W ar Clause, U.S. Const, art. I, ? 8,
cl. 11 ("[t]he Congress shall have Power . . . [t]o declare W ar"), did not o f its own
force require specific prior congressional authorization for the deploym ent of
troops at issue here. That deployment was characterized by circum stances that
sufficed to show that the operation was not a "war" within the meaning o f the
Declaration o f W ar Clause.6 The deployment was to have taken place, and did in
fact take place, with the full consent of the legitimate government of the country

5 We recognize, o f course, that the W PR provides that authority to introduce the arm ed forces in to h o s-
tilities o r situations w here hostilities are clearly indicated may not be inferred from an appropriation act,
unless that statute "states that it is intended to constitute specific statutory au th o n z atio n w ithin the m eaning
o f this ch ap ter " 5 0 U S C !) 1547(a)
6 See Note, C ongress, The President. A n d The Pow er To C om m it F orces To C o m b a t, 81 H arv. L Rev.
1771, 1790 (1968) (describing other lim ited interventions and suggesting conclusion that ' " w ar' in the sense
o f article J, section 8, requiring congressional sanction, does not include interventions to m aintain ord er in
w eak countries w here a severe contest at arm s w ith another nation is not likely to result"). Here, o f course,
there is still less reason to co n sid er the deploym ent a "w ar," since it was undertaken at the request o f the
recognized, d em o cratically-elected governm ent, and not m erely to "m aintain order."

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Opinions o f the O ffice o f L egal C ounsel

involved.7 Taking that and other circum stances into account, the President, to-
gether with his military and intelligence advisors, determined that the nature,
scope, and duration o f the deployment were not consistent with the conclusion that
the event was a "war."
In reaching that conclusion, we w ere guided by the initial premise, articulated
by Justice Robert Jackson, that the President, as C hief Executive and Commander
in Chief, "is exclusively responsible" for the "conduct o f diplomatic and foreign
affairs," and accordingly that he may, absent specific legislative restriction, deploy
United States armed forces "abroad or to any particular region." Johnson v. Eisen tra g e r , 339 U.S. at 789. Presidents have often utilized this authority, in the ab-
sence o f specific legislative authorization, to deploy United States military
personnel into foreign countries at the invitation o f the legitimate governments of
those countries. For example, during President T aft's Administration, the recog-
nized governm ent o f Nicaragua called upon the United States to intervene because
of civil disturbance. According to President Taft, "[t]his led to the landing of ma-
rines and quite a cam paign . . . . T his was not an act of war, because it was done
with the consent of the lawful authorities of the territory wliere it took place."
W illiam H ow ard Taft, The P residen cy 88-89 (1916).8
In 1940, after the fall o f Denmark to Germany, President Franklin Roosevelt or-
dered United States troops to occupy Greenland, a Danish possession in the North
Atlantic of vital strategic interest to the United States. This was done pursuant to
an agreem ent between the United States and the Danish M inister in Washington,
and was welcom ed by the local officials on Greenland.9 Congress was not con-
sulted or even directly informed. S ee James Grafton Rogers, W orld Policing and
the C on stitution 69-70 (1945). Later, in 1941, the President ordered United States
troops to occupy Iceland, an independent nation, pursuant to an agreement between
him self and the Prime M inister of Iceland. The President relied upon his authority
as C om m ander in Chief, and notified Congress only after the event. Id. at 70-71.
M ore recently, in 1989, at the request of President Corazon Aquino, President
Bush authorized m ilitary assistance to the Philippine governm ent to suppress a
coup attem pt. Pub. P a p ers o f G eorge Bush 1615 (1989).
Such a pattern of executive conduct, made under claim of right, extended over
many decades and engaged in by Presidents o f both parties, "evidences the exis-
tence o f broad constitutional power." 4A Op. O .L.C. at 187.
W e are not suggesting, however, that the United States cannot be said to engage
in "w ar" w henever it deploys troops into a country at the invitation of that coun7 M o reo v er, the dep lo y m em accorded w ilh U nited N ations Security C ouncil R esolution No 940 (1994).
T here can th u s be no q u estio n b u t that the d e p lo y m e n t ts law ful as a m atter o f international law
8 P resid en t G ro v er C lev elan d had also o p in e d that a "'m ilitary dem onstration" on the soil o f a foreign
country w as not an " act o f w ar" if it was "m ade eith e r with the consent o f the [foreign] governm ent
. or for
the b on a ji d e p urpose o f p ro tectin g the im p eriled lives and property o f citizens o f the U nited States ** 9
M e ssa g e s a n d P apers o j the Presidents 1789-1897, at 466 (Jam es R ichardson ed , 1898).
9 T h e D anish K ing and m in isters were in G erm an hands at the time

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try's legitimate government. Rather, we believe that "war" does not exist where
United States troops are deployed at the invitation of a fully legitimate government
in circumstances in which the nature, scope, and duration o f the deployment are
such that the use of force involved does not rise to the level of "war."
In deciding whether prior Congressional authorization for the Haitian deploy-
ment was constitutionally necessary, the President was entitled to take into account
the anticipated nature, scope, and duration of the planned deployment, and in par-
ticular the limited antecedent risk that United States forces would encounter sig-
nificant armed resistance or suffer or inflict substantial casualties as a result of the
deploym ent.10 Indeed, it was the President's hope, since vindicated by the event,
that the Haitian military leadership would agree to step down before exchanges of
fire occurred. Moreover, while it would not be appropriate here to discuss opera-
tional details, other aspects of the planned deployment, including the fact that it
would not involve extreme use of force, as for example preparatory bombardment,
were also relevant to the judgm ent that it was not a "war."
On the basis of the reasoning detailed above, we concluded that the President
had the constitutional authority to deploy troops into Haiti even prior to the Sep-
tember 18 agreement.

W ALTER DELLINGER
A ssistant A ttorney G eneral
Office o f Legal Counsel

10
A llhough the President found lhai the d eploym ent w ould not be w ithout risk, he and his sen io r advisers
had also determ ined that the U nited States w ould introduce a force o f sufficient size to deter arm ed resis-
tance by the H aitian m ilitary and thus to hold both U nited States and H aitian casualties to a m inim um The
fact that the U nited States planned to deploy up to 20,000 troops is not in u self dispositive on the question
w hether ihe operation was a "w ar" in the constitutional sense, since the very size o f the force w as designed
to reduce o r elim inate the likelihood o f arm ed resistance.

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Proposed Deployment of United States Armed Forces into
Bosnia
The President, acting without specific statutory authorization, may lawfully introduce United States
ground troops into Bosnia in order to assist the North Atlantic Treaty Organization to ensure
compliance with a peace agreem ent

November 30, 1995
M e m o r a n d u m O p in io n

for th e

Counsel

to t h e

P r e s id e n t

This is to provide you with our analysis of whether the President, acting without
specific statutory authorization, lawfully may introduce United States ground
troops into Bosnia and Herzegovina (" Bosnia" ) to help the North Atlantic Treaty
Organization (" NATO" ) ensure compliance with the recently negotiated peace
agreement. We believe that the President may act unilaterally in the circumstances
here.

I. Background

The United States has a large stake in helping to secure the Bosnian peace
agreement. The United States has a firm commitment to the principle that the
security and stability of Europe are of fundamental interest to the United States.
As the President stated, if the negotiations fail and the war resumes, there is a
very real risk that it could spread beyond Bosnia, and involve Europe's new
democracies as well as our NATO allies.
Although the involvement of the United Nations in the Bosnian conflict can
be traced back to at least 1991, the United Nations first deployed the United
Nations Protection Force (" UNPROFOR" ) in the former Yugoslavia in April
1992. Most of the troops in UNPROFOR have been provided by nations allied
with the United States under the NATO Treaty. In addition to operations involving
ground forces, the Security Council, in Resolutions 781 and 786 (October 9 and
November 10, 1992), established a ban on unauthorized military flights over
Bosnia. In Security Council Resolution 816 (March 31, 1993), the Security
Council authorized Member States and regional organizations to take " all nec-
essary measures" to ensure compliance with the no-fly zone. The NATO allies
agreed to undertake that enforcement. In Security Council Resolutions 836 and
844 (June 4 and 18, 1993), the Security Council authorized Member States and
regional organizations (including NATO) to help protect UNPROFOR. In response
to attacks on Sarajevo, NATO also agreed, on February 9, 1994, to accept the
Secretary General's request to begin air operations, in coordination with

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UNPROFOR, against military positions determined to be involved in attacks on
civilian targets in Sarajevo.
Working with its NATO allies, the United States has played an important role
in the United Nations' dispute-settlement efforts and in UNPROFOR's Bosnian
operations. It contributed combat-equipped fighter aircraft and other resources to
NATO's enforcement of the Security Council's no-fly ban. It also provided mili-
tary assets to implement NATO's February 9, 1994, decision to attack military
targets near Sarajevo. On occasion, United States military forces, under the aus-
pices of NATO, have engaged in combat in support of UNPROFOR. On February
28, 1994, United States aircraft on air patrol for NATO engaged Serb aircraft
violating the no-fly ban, destroyed three of them, and downed a fourth. On April
10-11, 1994, United States combat-equipped aircraft engaged Bosnian-Serb air-
craft and gunners in defense of UNPROFOR personnel who had come under
attack in Gorazde. On November 21, 1994, NATO conducted airstrikes involving
thirty-nine United States and allied aircraft in response to Serb air attacks that
had threatened 1,200 UNPROFOR troops in Bihac. The President reported each
of these incidents by formal letters to Congress.
In a radio address of February 19, 1994, the President outlined the support the
United States had given as of that time to the United Nations' effort in the former
Yugoslavia:
We have participated in the enforcement of economic sanctions
against Serbia. We initiated airdrops o f food and medicine and
participated in the Sarajevo airlift, a massive effort, running longer
than the Berlin airlift, which has relieved starvation and suffering
for tens of thousands of Bosnians. Together with our NATO allies,
we began enforcement o f a no-fly zone to stop the parties from
spreading the war with aircraft.
We have warned Serbia against increasing its repression of the
Albanian ethnic minority in Kosovo. We have contributed 300
American troops to the United Nations force that is helping to
ensure that the war does not spread to the former Yugoslav
Republic of Macedonia, which lies between Bosnia and Greece.
And we have worked with our allies to ensure that NATO is pre-
pared to help solve this crisis.
1 Pub. Papers of William J. Clinton 284 (1994).
More recently, after the Bosnian Serbs assaulted Srebenica and Zepa, which
the United Nations had designated as safe areas, the United States organized an
agreement with our NATO allies to take decisive military measures against any
further attacks on safe areas. When the Bosnian Serbs later shelled a marketplace
in Sarajevo, American pilots took part in a NATO bombing campaign designed
to prevent the repetition of such offenses and ensure the withdrawal of heavy

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weapons from around Sarajevo. Throughout this period, the President has
informed Congress of the United States' involvement in supporting the
UNPROFOR, including the episodes of combat that have occurred.1
In the past few months, the United States initiated an intensive diplomatic effort
that produced a peace agreement among the warring parties in Bosnia. The United
States had earlier assisted those parties in reaching a cease-fire. The peace agree-
ment itself came out of negotiations that took place on American soil, under the
guidance of the Department of State. The United Nations Security Council has
indicated its support of the agreement. The parties to the agreement have made
clear that their confidence in the strength of the accord depends on the presence
of an international military force that would maintain the cease-fire and the separa-
tion of forces. It is anticipated that the United States would contribute 20,000
ground troops to the force and that our NATO allies, as well as such non-NATO
countries as Russia, would provide twice that number.2
The President has determined that, without this substantial contingent of United
States troops, the NATO force is unlikely to be able to prevent renewed fighting
in Bosnia. The President bases this conclusion on (among other things) the rep-
resentations of the parties and in particular of the Bosnians. A failure to carry
out the terms of the peace accord, in the President's judgment, would injure Amer-
ica's national interests, as well as once again consigning the Bosnians to violence
and atrocities of a sort not seen in Europe since the end of the Second World
War. See, e.g.. Letter for Honorable Newt Gingrich, Speaker of the House of
Representatives, from President William J. Clinton (Nov. 13, 1995) (" November
13 Letter" ). The precise level of risk to United States troops is, of course, impos-
sible to specify. As the President has stated, " America's role will not be about
fighting a war. It will be about helping the people of Bosnia to secure their own
peace agreement." The risk o f casualties cannot be dismissed; " [t]here may be
accidents in the field or incidents with people who have not given up their
hatred." 2 Pub. Papers of William J. Clinton 1784, 1786 (1995). However,
because of the size of the Implementation Force (" IFOR" ) and its rules of engage-
ment, as well as the high quality of United States and NATO troops, training,
and equipment, we would have created conditions that would offer the minimum
possible risks to our soldiers.
1Congress has from time to time enacted legislation (or expressed its sense) on the United States' policy and
role in the Bosnian conflict. See, e.g.. Department o f Defense Appropriations A ct, FY 1995, Pub. L No. 103--
335, ?8100, 108 Stat. 2599, 2643 (1994) (sense o f Congress that none o f funds appropriated under Act be available
to deploy United States Armed Forces to participate in Bosnian peace settlement); National Defense Authorization
Act, FY 1995, Pub. L. No. 103-337, ? 1404, 108 Stat. 2663, 2910 (1994) (sense o f Congress that President terminate
arms embargo against Bosnia if certain conditions obtain); Foreign Operations, Export Financing, and Related Pro-
grams Appropriations Act, FY 1995, Pub. L. No. 103-306, ?546, 108 Stat. 1608, 1641 (1994) (same); Foreign
Relations Authorization Act, FY 1994 & 1995, Pub. L. No. 103-236, ?520(c), 108 Stat. 382, 472 (1994) (President
should provide military assistance to Bosnia if that nation requests it under Article 51 of United Nations Charter).
2 Additional United States forces would also be deployed to areas outside Bosnia to support the ground troops
inside the country.

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II. Legal Analysis
In 1980, we noted that
[t]he power to deploy troops abroad without the initiation of hos-
tilities is the most clearly established exercise of the President's
general power as a matter o f 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.
Presidential Power to Use the Armed Forces Abroad Without Statutory Authoriza-
tion, 4A Op. O.L.C. 185, 187 (1980). Today, American soldiers are deployed at
many places around the world. Although these forces are not presently engaged
in ongoing hostilities, in some instances they deal with conditions of appreciable
danger. Indeed, continuously for the last forty years, American forces have been
deployed under such conditions. The United States, for example, has maintained
large military forces in Europe. At times, these troops have faced a genuine risk
of war, as during the Berlin Airlift. More recently, they have been subjected to
attacks by terrorists. On the other side of the globe, American forces are deployed
(for example) in South Korea, and even after the end of the Korean War, North
Korean forces have sometimes assaulted American soldiers.
The proposed deployment to Bosnia, therefore, is no innovation. As Commander
in Chief, the President exercises " the power to dispose of troops and equipment
in such manner and on such duties as best to promote the safety of the country."
Training o f British Flying Students in the United States, 40 Op. Att'y Gen. 58,
62 (1941) (Robert H. Jackson, A tt'y Gen.). Nevertheless, some have questioned
the President's authority to order the deployment. We first explain why the Presi-
dent has authority under the Constitution to order the deployment. We then review
the War Powers Resolution and suggest that it should be read as reflecting
Congress's understanding that the President, even absent specific statutory
authorization, may deploy military forces abroad and may, in some circumstances,
order them into situations in which conflict may arise.

A. The Declaration o f War Clause
The Constitution vests in Congress the power " [t]o declare War." U.S. Const,
art. I, ? 8 , cl. I I . 3 The scope and limits of that power are not well defined by
3 The D eclaration o f W ar Clause is not the only constitutional text relevant to either Congress's or the President's
war powers. As Justice Robert Jackson pointed out, "o u t o f seventeen specific paragraphs o f congressional power
[in article I, ? 8 ], eight o f them are devoted in whole or in part to specification of powers connected with w arfare."
Johnson v. Eisentrager, 339 U.S. 763, 788 (1950). The President also has inherent war powers as C hief Executive.
U.S. Const, art. n , ? 1, cl. 1, as Commander in Chief, id. ? 2 , cl. 1, and under other clauses.

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constitutional text, case law, or statute. Rather, the relationship o f Congress's
power to declare war and the President's authority as Commander in Chief and
Chief Executive has been clarified by 200 years of practice. See Harold H. Koh,
The National Security Constitution 70-71 (1990) (historical precedent serves as
" quasi-constitutional custom" in foreign affairs). In ruling on constitutional ques-
tions involving foreign relations, the Supreme Court has often shown itself willing
to rely on the evolved practice and custom of the political branches. See, e.g.,
Dames & Moore v. Regan, 453 U.S. 654, 686 (1981); Haig v. Agee, 453 U.S.
280, 292-93(1981).
Historical practice supplies numerous cases in which Presidents, acting on the
claim of inherent power, have introduced armed forces into situations in which
they encountered, or risked encountering, hostilities, but which were not " wars"
in either the common meaning or the constitutional sense. As the Supreme Court
observed in 1990, " [t]he United States frequently employs Armed Forces outside
this country-- over 200 times in our history-- for the protection of American
citizens or national security." United States v. Verdugo-Urquidez, 494 U.S. 259,
273 (1990). In at least 125 instances, the President acted without express
authorization from Congress. See Leonard C. Meeker, Legal Adviser, Dept, of
State, The Legality o f United States Participation in the Defense o f Viet-nam, 54
Dep't St. Bull. 474, 484-85 (1966); see also Authority o f the President to Repel
the Attack in Korea, 23 Dep't St. Bull. 173 (1950).4 In reliance on this historical
practice and understanding, our Office recently took the position that the President
had the inherent authority to deploy up to 20,000 troops into Haiti on the invitation
of that country's legitimate government. We argued that " [i]n deciding whether
prior Congressional authorization for the Haitian deployment was constitutionally
necessary, the President was entitled to take into account the anticipated nature,
scope, and duration of the planned deployment, and in particular the limited ante-
cedent risk that United States forces would encounter significant armed resistance
or suffer or inflict substantial casualties as a result of the deployment." D eploy-
ment o f United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 179 (1994)
(" OLC Haiti Letter" ) .5
4 This understanding o f Executive power has early antecedents. " [B]oth Secretary (of War] Knox and [President]
Washington himself seemed to think this [Commander in Chief] authority extended to offensive operations undertaken
in retaliation for Indian atrocities." David P. Currie, The Constitution in Congress: Substantive Issues in the First
Congress, 1789-1791, 61 U. Chi. L. Rev. 775, 816 (1994). On the other hand, Washington also wrote in 1793
that " no offensive expedition o f importance can be undertaken [against the Creek Indians] until after [Congress]
shall have deliberated upon the subject, and authorized such a m easure." 33 The Writings o f George Washington
73 (John C. Fitzpatrick ed., 1940).
5 In fact, past Administrations have made, and acted upon, far broader claims of unilateral Executive authority
to order troops into hostile situations than underlay the deployment in Haiti, either as it actually occurred or as
it was planned before the military leadership agreed to leave peacefully. For example, President Bush ordered United
States troops into Panama in December, 1989, for the purpose (among others) of overthrowing the regime o f General
Manuel Noriega. President Bush consulted with congressional leaders, but did not seek or receive C ongress's
authorization. See 2 Pub. Papers o f George Bush 1722-23 (1990). The boldest claim of Executive authority to wage
war without congressional authorization was made at the time o f the Korean W ar-- a conflict that ultimately lasted
for three years and caused over 142,000 American casualties. Such sweeping claims of inherent Executive authority
Continued

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In deciding whether the proposed deployment of ground troops into Bosnia
would amount to a " war" in the constitutional sense, considerable weight should
be given to the consensual nature and protective purposes of the operation. The
deployment is intended to be a limited mission that will ensure stability while
the peace agreement is put into effect. Because the mission is in support of an
agreement that the warring parties have reached and is at the invitation of those
parties, it is reasonably possible that little or no resistance to the deployment will
occur. The operation does not aim at the conquest or occupation of territory nor
even, as did the planned Haitian intervention, at imposing through military means
a change in the character of a political regime. Although combat conceivably may
occur during the course of the operation, it is not likely that the United States
will find itself involved in extensive or sustained hostilities. Moreover, as the
President has made clear, the Allies agree that if there were a total breakdown
in compliance, IFOR would be withdrawn.
We believe that the President has ample authority to undertake the planned oper-
ation. As noted above, the President as Commander in Chief has " the power to
dispose o f troops and equipment in such manner and on such duties as best to
promote the safety of the country." 40 Op. Att'y Gen. at 62; cf. Maul v. United
States, 274 U.S. 501, 515-16 (1927) (Brandeis and Holmes, JJ., concurring)
(President " may direct any revenue cutter to cruise in any waters in order to
perform any duty o f the service" ). His " authority has long been recognized as
extending to the dispatch of armed forces outside of the United States . . . for
the purpose o f protecting American lives or property or American interests." 40
Op. Att'y Gen. at 62 (emphasis added).
The American interests at stake here are clear. The United States has worked
closely and intimately with its NATO partners for several years in attempting
to carry out United Nations peacekeeping efforts in Bosnia and other parts of
the former Yugoslavia.6 United States military activities in the air and at sea
have complemented the UNPROFOR's peacekeeping efforts on the ground.
Indeed, the United States has already engaged in combat on several occasions
in UNPROFOR's defense. The proposed deployment of a NATO force to imple-
ment the peace agreement would be consistent with the pattern of inter-allied
cooperation and assistance that has been established over recent years. It would
serve significant national security interests, by preserving peace in the region and
have been sharply criticized. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 140
Cong. Rec. 19,811-16 (1994); cf. Holtzman v. Schlesinger, 414 U.S. 1304, 1311-12 (1973) (Marshall, J., sitting
as C ircuit Justice); but see Robert F. Turner, War and the Forgotten Executive Power Clause o f the Constitution:
A Review Essay o f John Hart Ely's War and Responsibility, 34 Va. J. Int'l L. 903, 949-59 (1994). It is unnecessary
to consider such broad assertions in the present case.
6 It should also be noted that Congress has expressed its sense that " old threats to the security of the United
States and its allies in the North Atlantic Treaty Organization having greatly diminished, and new, more diverse
challenges having arisen ( including ethno-religious conflict in Central and Eastern Europe . . .), NA TO 's mission
must be redefined so that it may respond to such challenges to its m em bers' security even when those challenges
emanate from beyond the geographic boundaries o f its m em bers' territories." National Defense Authorization Act.
FY 1994, Pub. L. No. 103-160, ? 1411(b), 107 Stat. 1547, 1827 (1993) (emphasis added).

332

Proposed Deployment o f United States Armed Forces into Bosnia

forestalling the threat of a wider conflict. As the President stated in his November
13 Letter, " [t]his Administration, and that of previous Democratic and Republican
Presidents, have been firmly committed to the principle that the security and sta-
bility of Europe is of fundamental interest to the United States." November 13
Letter at 1. If the war in the former Yugoslavia resumes, " there is a very real
risk that it could spread beyond Bosnia, and involve Europe's new democracies
as well as our NATO allies." Id. Furthermore, as we explained in concluding
that President Bush had authority to deploy United States forces in Somalia,
" maintaining the credibility of United Nations Security Council decisions, pro-
tecting the security of United Nations and related relief efforts, and ensuring the
effectiveness of United Nations peacekeeping operations can be considered a vital
national interest." Authority to Use United States Military Forces in Somalia,
16 Op. O.L.C. 6, 11 (1992). This argument applies equally to a NATO operation
that carries out a peace agreement supported by the United Nations. Indeed, there
is here the additional consideration that " [f]or almost 50 years, the [NATO] Alli-
ance has been the anchor of America's and Europe's common security," and " [i]f
we do not do our part in a NATO mission, we would weaken the Alliance and
jeopardize American leadership in Europe." November 13 Letter at 2. Accord-
ingly, in these circumstances, the President would have legal authority to order
the deployment, in order to further important national interests.
Several circumstances of the proposed deployment have led some to take a dif-
ferent view of this question. Unlike the Haitian intervention, this operation
arguably is not a case where " the risk of sustained military conflict [is] neg-
ligible." OLC Haiti Letter, 18 Op. O.L.C. at 173, 176. With the exception of
the limited commitment of ground troops to Macedonia, the United States' pre-
vious military involvement in the Yugoslav theater has been undertaken only by
its naval or aerial forces. The deployment of 20,000 troops on the ground is an
essentially different, and more problematic, type of intervention: it raises the risk
that the United States will incur (and inflict) casualties. Disengagement of ground
forces can be far more difficult than the withdrawal of forces deployed for air
strikes or naval interdictions. Because of the difficulties of disengaging ground
forces from situations of conflict, and the attendant risk that hostilities will esca-
late, arguably there is a greater need for approval at the outset for the commitment
of such troops to such situations; otherwise, Congress may be confronted with
circumstances in which the exercise of its power to declare war is effectively
foreclosed.
Nevertheless, we do not believe that these arguments against the President's
unilateral authority to deploy forces into Bosnia are persuasive. The deployment
would be in aid of a peace agreement that will be guaranteed by NATO and
the United Nations Security Council. The parties to the agreement already are
in substantial, though perhaps not total, compliance with an earlier cease-fire
agreement, and have invited the deployment of NATO forces and guaranteed their
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Opinions o f the Office o f Legal Counsel in Volume 19

safety. To send United States forces to the region, in these circumstances, does
not constitute " war" in any sense of the word.7 Historical practice reinforces
the most natural reading of the constitutional language: at the least, the President
may deploy United States forces here without express authorization to protect the
national interests, even if the deployment is not without some risk.
B. The War Powers Resolution
The War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973) (" the
WPR" or " the Resolution" ), codified at 50 U.S.C. ??1541-1548, is intended
" to fulfill the intent o f the framers of the Constitution of the United States and
insure that the collective judgment of both the Congress and the President will
apply to the introduction of United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly indicated by the
circumstances, and to the continued use of such forces in hostilities or in such
situations." 50 U.S.C. ? 1541(a). To carry out that goal, the Resolution provides
that the President is to report to Congress when United States 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 o f a foreign nation, while equipped for combat' ' (except for certain speci-
fied operations), or (3) " in numbers which substantially enlarge United States
Armed Forces equipped for combat already located in a foreign nation." Id.
? 1543. After a report about the introduction of forces into imminent or actual
hostilities, the Resolution would require the President to withdraw those forces
within sixty days (or ninety days if military necessity requires), unless Congress
has authorized continued operations.
The Resolution necessarily presupposes the President's authority, even in the
absence of express authorization by Congress, to deploy troops in circumstances
such as those here. Where (as here) the President would be ordering United States
forces into foreign territory while equipped for combat, the Resolution requires
a report to Congress. The Resolution thus assumes that the President sometimes
may order such deployments without prior statutory authorization. Indeed,
although section 8(d)(2) of the Resolution provides that the Resolution shall not
be construed " as granting any authority to the President with respect to the
introduction of United States Armed Forces into hostilities or into situations
w herein involvement in hostilities is clearly indicated by the circumstances," 50
U.S.C. ? 1547(d)(2), there is no similar reservation against construing the Resolu-
tion to authorize deployments o f troops equipped for combat in other situations.
At uie least, even if the Resolution does not add to the President's authority,
7 Wo do not suggest that any deployment o f United States troops that could be characterized as defensive or
pioiective would not, for that reason alone, amount to " w ar." A t best, the protective purpose o f the planned deploy-
ment is but one factor tending to show that our intervention would not amount to " w ar" ; it does not, in itself,
establish that conclusion.

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Proposed Deployment o f United Stales Armed Forces into Bosnia

it takes for granted that he may make deployments in situations where hostilities
are not actual or imminent, without purporting to limit the circumstances in which
such deployments may be made, cf. id. ? 1541(c) (listing circumstances for intro-
ducing troops into actual or imminent hostilities), and without placing any restric-
tion on the time during which the deployments may continue.
In our view, the Resolution lends support to the broader conclusion that the
President has authority, without specific statutory authorization, to introduce
troops into hostilities in a substantial range of circumstances. Although the Resolu-
tion asserts that " [t]he constitutional powers of the President as Commander-inChief" to introduce armed forces into actual or indicated hostilities are limited
to three specific circumstances (i.e., when undertaken pursuant to a declaration
of war or specific statutory authorization, or in a national emergency created by
an attack on the United States, its territories or its armed forces), id. the Resolution
also declares that nothing in it " is intended to alter the constitutional authority
. . . of the President." Id. ? 1547(d)(1). The executive branch has traditionally
taken the position that the President's power to deploy armed forces into situations
of actual or indicated hostilities is not restricted to the three categories specifically
marked out by the Resolution.8 Furthermore, as we have recently argued,
the structure of the War Powers Resolution (" WPR" ) recognizes
and presupposes the existence of unilateral presidential authority
to deploy armed forces 'into hostilities or into situations where
imminent involvement in hostilities is clearly indicated by the cir-
cumstances.' 50 U.S.C. ? 1543(a)(1). The WPR requires that, in the
absence of a declaration of war, the President must report to Con-
gress within forty-eight hours of introducing armed forces into such
circumstances and must terminate the use of United States armed
forces within sixty days (or ninety days, if military necessity
requires additional time to effect a withdrawal) unless Congress
permits otherwise. Id. ? 1544(b). This structure makes sense only
if the President may introduce troops into hostilities or potential
hostilities without prior authorization by the Congress: the WPR
regulates such action by the President and seeks to set limits to
it.
OLC Haiti Letter at 175-76.9
8 See, e.g., Overview o f the War Powers Resolution, 8 Op. O.L.C. 271, 274-75 (1984); War Powers: A Test
o f Compliance: Hearings Before the Subcomm. on International Security and Scientific Affairs o f the House Comm,
on International Relations, 94th Cong. 90 (1975) (statement o f Monroe Leigh, Legal Adviser, Department o f State).
9 We do not understand the Resolution, in itself, to provide statutory authorization for introducing troops into
hostilities; section 8(d)(2) o f the Resolution itself expressly disclaims any interpretation that it confers such authority.
See 50 U.S.C. ? 1547(d)(2).

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Opinions o f the Office o f Legal Counsel in Volume 19

Conclusion
We believe that the President has the authority to order the proposed deployment
of United States forces in Bosnia, under the circumstances contemplated, without
express statutory authorization.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel

336

AUTHORITY TO USE MILITARY FORCE IN LIBYA
The President had the constitutional authority to direct the use of military force in Libya because he could reasonably determine that such use of force was in the national interest. Prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.

April 1, 2011 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President's legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. I. In mid-February 2011, amid widespread popular demonstrations seeking governmental reform in the neighboring countries of Tunisia and Egypt, as well as elsewhere in the Middle East and North Africa, protests began in Libya against the autocratic government of Colonel Muammar Qadhafi, who has ruled Libya since taking power in a 1969 coup. Qadhafi moved swiftly in an attempt to end the protests using military force. Some Libyan government officials and elements of the Libyan military left the Qadhafi regime, and by early March, Qadhafi had lost control over much of the eastern part of the country, including the city of Benghazi. The Libyan government's operations against its opponents reportedly included strafing of protesters and shelling, bombing, and other violence deliberately targeting civilians. Many refugees fled to Egypt and other neighboring countries to escape the violence, creating a serious crisis in the region. On February 26, 2011, the United Nations Security Council ("UNSC") unanimously adopted Resolution 1970, which "[e]xpress[ed] grave concern at the situation in the Libyan Arab Jamahiriya," "condemn[ed] the violence and use of force against civilians," and "[d]eplor[ed] the gross and systematic violation of human rights" in Libya. S.C. Res. 1970, U.N. Doc. S/RES/1970 (Feb. 26, 2011); Press Release, Security Council, In Swift, Decisive Action, Security Council Imposes Tough Measures on Libyan Regime, Adopting Resolution 1970 in Wake of Crackdown on Protesters, U.N. Press Release SC/10187/Rev. 1 (Feb. 26, 2011). The resolution called upon member states, among other things, to take "the necessary measures" to prevent arms transfers "from or through their territories or by their nationals, or using their flag vessels or aircraft"; to freeze the assets of Qadhafi and certain other close associates of the regime; and to "facilitate and support the return of humanitarian agencies and make available humanitarian and related assistance" in Libya. S.C. Res. 1970, ?? 9, 17, 26. The resolution did not, however, authorize members of the United Nations to use military force in Libya.

Opinions of the Office of Legal Counsel in Volume 35

The Libyan government's violence against civilians continued, and even escalated, despite condemnation by the UNSC and strong expressions of disapproval from other regional and international bodies. See, e.g., African Union, Communique of the 265th Meeting of the Peace and Security Council, PSC/PR/COMM.2(CCLXV) (Mar. 10, 2011) (describing the "prevailing situation in Libya" as "pos[ing] a serious threat to peace and security in that country and in the region as a whole" and "[r]eiterat[ing] AU's strong and unequivocal condemnation of the indiscriminate use of force and lethal weapons"); News Release, Organization of the Islamic Conference, OIC General Secretariat Condemns Strongly the Excessive Use of Force Against Civilians in the Libyan Jamahiriya (Feb. 22, 2011), available at http://www.oic-oci.org/ topic_detail.asp?t_id=4947&x_key= (reporting that "the General Secretariat of the Organization of the Islamic Conference (OIC) voiced its strong condemnation of the excessive use of force against civilians in the Arab Libyan Jamahiriya"). 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." S. Res. 85, 112th Cong. ?? 2, 3, 7 (as passed by Senate, Mar. 1, 2011). On March 12, the Council of the League of Arab States similarly called on the UNSC "to take the necessary measures to impose immediately a no-fly zone on Libyan military aviation" and "to establish safe areas in places exposed to shelling as a precautionary measure that allows the protection of the Libyan people and foreign nationals residing in Libya, while respecting the sovereignty and territorial integrity of neighboring States." League of Arab States, The Outcome of the Council of the League of Arab States Meeting at the Ministerial Level in Its Extraordinary Session on the Implications of the Current Events in Libya and the Arab Position, Res. No. 7360, ? 1 (Mar. 12, 2011). By March 17, 2011, Qadhafi's forces were preparing to retake the city of Benghazi. Pledging that his forces would begin an assault on the city that night and show "no mercy and no pity" to those who would not give up resistance, Qadhafi stated in a radio address: "We will come house by house, room by room. It's over. The issue has been decided." See Dan Bilefsky & Mark Landler, Military Action Against Qaddafi Is Backed by U.N., N.Y. Times, Mar. 18, 2011, at A1. Qadhafi, President Obama later noted, "compared [his people] to rats, and threatened to go door to door to inflict punishment. . . . We knew that if we . . . waited one more day, Benghazi, a city nearly the size of Charlotte, could suffer a massacre that would have reverberated across the region and stained the conscience of the world." Press Release, Office of the Press Secretary, The White House, Remarks by the President in Address to the Nation on Libya (Mar. 28, 2011) ("Obama March 28, 2011 Address"), available at http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-president-address-nation-libya. Later the same day, the UNSC addressed the situation in Libya again by adopting, by a vote of 10-0 (with five members abstaining), Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians. See S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011); Press Release, Security Council, Security Council Approves 'NoFly Zone' Over Libya, Authorizing 'All Necessary Measures' to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions, U.N. Press Release SC/10200 (Mar. 17, 2011). In this resolution, 2


Authority to Use Military Force in Libya

the UNSC determined that the "situation" in Libya "continues to constitute a threat to international peace and security" and "demand[ed] the immediate establishment of a cease-fire and a complete end to violence and all attacks against, and abuses of, civilians." S.C. Res. 1973. Resolution 1973 authorized member states, acting individually or through regional organizations, "to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory." Id. ? 4. The resolution also specifically authorized member states to enforce "a ban on all [unauthorized] flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians" and to take "all measures commensurate to the specific circumstances" to inspect vessels on the high seas suspected of violating the arms embargo imposed on Libya by Resolution 1970. Id. ?? 6-8, 13. In remarks on March 18, 2011, President Obama stated that, to avoid military intervention to enforce Resolution 1973, Qadhafi needed to: implement an immediate ceasefire, including by ending all attacks on civilians; halt his troops' advance on Benghazi; pull his troops back from three other cities; and establish water, electricity, and gas supplies to all areas. Press Release, Office of the Press Secretary, The White House, Remarks by the President on the Situation in Libya (Mar. 18, 2011) ("Obama March 18, 2011 Remarks"), available at http://www.whitehouse.gov/the-press-office/2011/03/18/remarks-president-situation-libya. The President also identified several national interests supporting United States involvement in the planned operations: Now, here is why this matters to us. Left unchecked, we have every reason to believe that Qaddafi would commit atrocities against his people. Many thousands could die. A humanitarian crisis would ensue. The entire region could be destabilized, endangering many of our allies and partners. The calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow. Id. President Obama further noted the broader context of the Libyan uprising, describing it as "just one more chapter in the change that is unfolding across the Middle East and North Africa." Id. Despite a statement from Libya's Foreign Minister that Libya would honor the requested ceasefire, the Libyan government continued to conduct offensive operations, including attacks on civilians and civilian-populated areas. See Press Release, Office of the Press Secretary, The White House, Letter from the President Regarding Commencement of Operations in Libya: Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (Mar. 21, 2011) ("Obama March 21, 2011 Report to Congress"), available at http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding- commencement-operations-libya. In response, on March 19, 2011, the United States, with the support of a number of its coalition partners, launched airstrikes against Libyan targets to enforce Resolution 1973. Consistent with the reporting provisions of the War Powers Resolution, 50 U.S.C. ? 1543(a) (2006), President Obama provided a report to Congress less than forty-eight hours later, on March 21, 2011. The President explained: 3


Opinions of the Office of Legal Counsel in Volume 35

At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners. Obama March 21, 2011 Report to Congress. The report then described the background to the strikes, including UNSC Resolution 1973, the demand for a ceasefire, and Qadhafi's continued attacks. The March 21 report also identified the risks to regional and international peace and security that, in the President's judgment, had justified military intervention: Qadhafi's continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, 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. Qadhafi's defiance of the Arab League, as well as the broader international community . . . represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk. Id. Emphasizing that "[t]he United States has not deployed ground forces into Libya," the President explained that "United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster" and 4


Authority to Use Military Force in Libya

thus had targeted only "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." Id. The President also indicated that "[w]e will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973." Id. As authority for the military operations in Libya, President Obama invoked his "constitutional authority to conduct U.S. foreign relations" and his authority "as Commander in Chief and Chief Executive." Id. Before the initiation of military operations in Libya, White House and other executive branch officials conducted multiple meetings and briefings on Libya with members of Congress and testified on the Administration's policy at congressional hearings. See Press Release, Office of the Press Secretary, Press Gaggle by Press Secretary Jay Carney (Mar. 24, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/24/press-gaggle-press-secretary-jay- carney-3242011. President Obama invited Republican and Democratic leaders of Congress to the White House for consultation on March 18, 2011 before launching United States military operations, see id., and personally briefed members of Congress on the ongoing operations on March 25, 2011. Press Release, Office of the Press Secretary, Readout of the President's Meeting with Members of Congress on Libya (Mar. 25, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/25/readout-presidents-meeting-members- congress-libya. Senior executive branch officials are continuing to brief Senators and members of Congress on U.S. operations and events in Libya as they develop. On March 28, 2011, President Obama addressed the nation regarding the situation in Libya. The President stated that the coalition had succeeded in averting a massacre in Libya and that the United States was now transferring "the lead in enforcing the no-fly zone and protecting civilians on the ground . . . to our allies and partners." Obama March 28, 2011 Address. In future coalition operations in Libya, the President continued, "the United States will play a supporting role--including intelligence, logistical support, search and rescue assistance, and capabilities to jam regime communications." Id. The President also reiterated the national interests supporting military action by the United States. "[G]iven the costs and risks of intervention," he explained, "we must always measure our interests against the need for action." Id. But, "[i]n this particular country--Libya--at this particular moment, we were faced with the prospect of violence on a horrific scale," and "[w]e had a unique ability to stop that violence." Id. Failure to prevent a slaughter would have disregarded America's "important strategic interest in preventing Qaddafi from overrunning those who oppose him": A massacre would have driven thousands of additional refugees across Libya's borders, putting enormous strains on the peaceful-- yet fragile--transitions in Egypt and Tunisia. The democratic impulses that are dawning across the region would be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power. The 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. So while I will never minimize the costs involved in military action, I am 5


Opinions of the Office of Legal Counsel in Volume 35

convinced that a failure to act in Libya would have carried a far greater price for America. Id. As of March 31, 2011, the United States had transferred responsibility for all ongoing coalition military operations in Libya to the North Atlantic Treaty Alliance ("NATO"). II. The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to "set the stage" for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilianpopulated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, 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, even without prior specific congressional approval. A. Earlier opinions of this Office and other historical precedents establish the framework for our analysis. As we explained in 1992, Attorneys General and this Office "have concluded that the President has the power to commit United States troops abroad," as well as to "take military action," "for the purpose of protecting important national interests," even without specific prior authorization from Congress. Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 9 (1992) ("Military Forces in Somalia"). This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it, see Deployment of United States Armed Forces into Haiti, 18 Op. O.L.C. 173, 176 n.4, 178 (1994) ("Haiti Deployment"), derives from the President's "unique responsibility," as Commander in Chief and Chief Executive, for "foreign and military affairs," as well as national security. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993); U.S. Const. art. II, ? 1, cl. 1, ? 2, cl. 2. The Constitution, to be sure, divides authority over the military between the President and Congress, assigning to Congress the authority to "declare War," "raise and support Armies," and "provide and maintain a Navy," as well as general authority over the appropriations on which any military operation necessarily depends. U.S. Const. art. I, ? 8, cl. 1, 11-14. Yet, under "the historical gloss on the 'executive Power' vested in Article II of the Constitution," the President bears the "'vast share of responsibility for the conduct of our foreign relations,'" Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring)), and accordingly holds "independent authority 'in the areas of foreign policy and national security.'" Id. at 429 (quoting Haig v. Agee, 453 U.S. 280, 291 (1981)); see also, e.g., Youngstown Sheet & Tube Co., 343 U.S. 6


Authority to Use Military Force in Libya

at 635-36 n.2 (Jackson, J., concurring) (noting President's constitutional power to "act in external affairs without congressional authority"). Moreover, the President as Commander in Chief "superintend[s] the military," Loving v. United States, 517 U.S. 748, 772 (1996), and "is authorized to direct the movements of the naval and military forces placed by law at his command." Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); see also Placing of United States Armed Forces Under United Nations Operational or Tactical Control, 20 Op. O.L.C. 182, 184 (1996). The President also holds "the implicit advantage . . . over the legislature under our constitutional scheme in situations calling for immediate action," given that imminent national security threats and rapidly evolving military and diplomatic circumstances may require a swift response by the United States without the opportunity for congressional deliberation and action. Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 187 (1980) ("Presidential Power"); see also Haig, 453 U.S. at 292 (noting "'the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature'" (quoting Zemel v. Rusk, 381 U.S. 1, 17 (1965)). Accordingly, as Attorney General (later Justice) Robert Jackson observed over half a century ago, "the President's authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of goodwill or rescue, or for the purpose of protecting American lives or property or American interests." Training of British Flying Students in the United States, 40 Op. Att'y Gen. 58, 62 (1941). This understanding of the President's constitutional authority reflects not only the express assignment of powers and responsibilities to the President and Congress in the Constitution, but also, as noted, the "historical gloss" placed on the Constitution by two centuries of practice. Garamendi, 539 U.S. at 414. "Our history," this Office observed in 1980, "is replete with instances of presidential uses of military force abroad in the absence of prior congressional approval." Presidential Power, 4A Op. O.L.C. at 187; see generally Richard F. Grimmett, Cong. Research Serv., R41677, Instances of Use of United States Armed Forces Abroad, 1798-2010 (2011). Since then, instances of such presidential initiative have only multiplied, with Presidents ordering, to give just a few examples, bombing in Libya (1986), an intervention in Panama (1989), troop deployments to Somalia (1992), Bosnia (1995), and Haiti (twice, 1994 and 2004), air patrols and airstrikes in Bosnia (1993-1995), and a bombing campaign in Yugoslavia (1999), without specific prior authorizing legislation. See Grimmett, supra, at 13-31. This historical practice is an important indication of constitutional meaning, because it reflects the two political branches' practical understanding, developed since the founding of the Republic, of their respective roles and responsibilities with respect to national defense, and because "[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention." Haig, 453 U.S. at 292. In this context, the "pattern of executive conduct, made under claim of right, extended over many decades and engaged in by Presidents of both parties, 'evidences the existence of broad constitutional power.'" Haiti Deployment, 18 Op. O.L.C. at 178 (quoting Presidential Power, 4A Op. O.L.C. at 187); see also Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. O.L.C. 327, 330-31 (1995) ("Proposed Bosnia Deployment") (noting that "[t]he scope and limits" of Congress's power to declare war "are not well defined by constitutional text, case law, or statute," but the relationship between that power and the President's authority as Commander in Chief and Chief Executive has been instead "clarified by 200 years of practice").

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Indeed, Congress itself has implicitly recognized this presidential authority. The War Powers Resolution ("WPR"), 50 U.S.C. ?? 1541-1548 (2006), a statute Congress described as intended "to fulfill the intent of the framers of the Constitution of the United States," id. ? 1541(a), provides that, in the absence of a declaration of war, the President must report to Congress within 48 hours of taking certain actions, including introduction of U.S. forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." Id. ? 1543(a). The Resolution further provides that the President generally must terminate such use of force within 60 days (or 90 days for military necessity) unless Congress extends this deadline, declares war, or "enact[s] a specific authorization." Id. ? 1544(b). As this Office has explained, although the WPR does not itself provide affirmative statutory authority for military operations, see id. ? 1547(d)(2), the Resolution's "structure . . . recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces" into hostilities or circumstances presenting an imminent risk of hostilities. Haiti Deployment, 18 Op. O.L.C. at 175; see also Proposed Bosnia Deployment, 19 Op. O.L.C. at 334. That structure-- requiring a report within 48 hours after the start of hostilities and their termination within 60 days after that--"makes sense only if the President may introduce troops into hostilities or potential hostilities without prior authorization by the Congress." Haiti Deployment, 18 Op. O.L.C. at 175-76; see also Proposed Bosnia Deployment, 19 Op. O.L.C. at 334-35.1 We have acknowledged one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests--a planned military engagement that constitutes a "war" within the meaning of the Declaration of War Clause may require prior congressional authorization. See Proposed Bosnia Deployment, 19 Op. O.L.C. at 331; Haiti Deployment, 18 Op. O.L.C. at 177. But the historical practice of presidential military action without congressional approval precludes any suggestion that Congress's authority to declare war covers every military engagement, however limited, that the President initiates. In our view, determining whether a particular planned engagement constitutes a "war" for constitutional purposes instead requires a fact-specific assessment of the "anticipated nature, scope, and duration" of the planned military operations. Haiti Deployment, 18 Op. O.L.C. at 179. This standard generally will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period. Again, Congress's own key enactment on the subject reflects this understanding. By allowing United States involvement in hostilities to continue for 60 or 90 days, Congress signaled in the WPR that it considers congressional authorization most critical
A policy statement in the WPR states that "[t]he constitutional powers of the President as Commander-inChief 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." 50 U.S.C. ? 1541(c). But this policy statement "is not to be viewed as limiting presidential action in any substantive manner." Presidential Power, 4A Op. O.L.C. at 190. The conference committee report accompanying the WPR made clear that "[s]ubsequent sections of the [Resolution] are not dependent upon the language of" the policy statement. H.R. Rep. No. 93-547, at 8 (1973). Moreover, in a later, operative provision, the Resolution makes clear that nothing in it "is intended to alter the constitutional authority . . . of the President." 50 U.S.C. ? 1547(d). As demonstrated by U.S. military interventions in Somalia, Haiti, Bosnia, and Kosovo, among many other examples, "the President's power to deploy armed forces into situations of actual or indicated hostilities is not restricted to the three categories specifically marked out by the Resolution." Proposed Bosnia Deployment, 19 Op. O.LC. at 335; see also Haiti Deployment, 18 Op. O.L.C. at 176 & n.3.
1

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for "major, prolonged conflicts such as the wars in Vietnam and Korea," not more limited engagements. Id. at 176. Applying this fact-specific analysis, we concluded in 1994 that a planned deployment of up to 20,000 United States troops to Haiti to oust military leaders and reinstall Haiti's legitimate government was not a "war" requiring advance congressional approval. Id. at 174 n.1, 178-79 & n.10; see also Address to the Nation on Haiti, 30 Weekly Comp. Pres. Doc. 1799 (Sept. 18, 1994); Maureen Taft-Morales & Clare Ribando Seelke, Cong. Research Serv., RL32294, Haiti: Developments and U.S. Policy Since 1991 and Current Congressional Concerns 4 (2008). "In deciding whether prior Congressional authorization for the Haitian deployment was constitutionally necessary," we observed, "the President was entitled to take into account the anticipated nature, scope, and duration of the planned deployment, and in particular the limited antecedent risk that United States forces would encounter significant armed resistance or suffer or inflict substantial casualties as a result of the deployment." Haiti Deployment, 18 Op. O.L.C. at 179. Similarly, a year later we concluded that a proposed deployment of approximately 20,000 ground troops to enforce a peace agreement in Bosnia and Herzegovina also was not a "war," even though this deployment involved some "risk that the United States [would] incur (and inflict) casualties." Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. For more than two years preceding this deployment, the United States had undertaken air operations over Bosnia to enforce a UNSC-declared "no-fly zone," protect United Nations peacekeeping forces, and secure "safe areas" for civilians, including one two-week operation in which NATO attacked hundreds of targets and the United States alone flew over 2300 sorties--all based on the President's "constitutional authority to conduct the foreign relations of the United States and as Commander in Chief and Chief Executive," without a declaration of war or other specific prior approval from Congress. Letter to Congressional Leaders Reporting on the Deployment of United States Aircraft to Bosnia-Herzegovina, 1995 Pub. Papers of William J. Clinton 1279, 1280 (Sept. 1, 1995); see also, e.g., Letter to Congressional Leaders on Bosnia, 30 Weekly Comp. Pres. Doc. 2431, 2431 (Nov. 22, 1994); Letter to Congressional Leaders on BosniaHerzegovina, 30 Weekly Comp. Pres. Doc. 1699, 1700 (Aug. 22, 1994); Letter to Congressional Leaders on Protection of United Nations Personnel in Bosnia-Herzegovina, 30 Weekly Comp. Pres. Doc. 793, 793 (Apr. 12, 1994); Letter to Congressional Leaders Reporting on NATO Action in Bosnia, 30 Weekly Comp. Pres. Doc. 406, 406 (Mar. 1, 1994); Letter to Congressional Leaders on the Conflict in the Former Yugoslavia, 30 Weekly Comp. Pres. Doc. 324, 325 (Feb. 17, 1994); Letter to Congressional Leaders Reporting on the No-Fly Zone Over Bosnia, 29 Weekly Comp. Pres. Doc. 586, 586 (Apr. 13, 1993); Proposed Bosnia Deployment, 19 Op. O.L.C. at 328-29; Deliberate Force: A Case Study in Effective Air Campaigning 334, 341-44 (Col. Robert C. Owen, ed., 2000), available at http://purl.access.gpo.gov/GPO/LPS20446. This Office acknowledged that "deployment of 20,000 troops on the ground is an essentially different, and more problematic, type of intervention," than air or naval operations because of the increased risk of United States casualties and the far greater difficulty of withdrawing United States ground forces. But we nonetheless concluded that the anticipated risks were not sufficient to make the deployment a "'war' in any sense of the word." Proposed Bosnia Deployment, 19 Op. O.L.C. at 333-34.

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B. Under the framework of these precedents, the President's legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President's action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in "nature, scope, and duration" to constitute a "war" requiring prior specific congressional approval under the Declaration of War Clause. In prior opinions, this Office has identified a variety of national interests that, alone or in combination, may justify use of military force by the President. In 2004, for example, we found adequate legal authority for the deployment of U.S. forces to Haiti based on national interests in protecting the lives and property of Americans in the country, preserving "regional stability," and maintaining the credibility of United Nations Security Council mandates. Memorandum for Alberto R. Gonzales, Counsel to the President, from Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, Re: Deployment of United States Armed Forces to Haiti at 3-4 (Mar. 17, 2004) ("2004 Haiti Opinion"), available at http://www.justice.gov/olc/ opinions.htm. In 1995, we similarly concluded that the President's authority to deploy approximately 20,000 ground troops to Bosnia, for purposes of enforcing a peace agreement ending the civil war there, rested on national interests in completing a "pattern of inter-allied cooperation and assistance" established by prior U.S. participation in NATO air and naval support for peacekeeping efforts, "preserving peace in the region and forestalling the threat of a wider conflict," and maintaining the credibility of the UNSC. Proposed Bosnia Deployment, 19 Op. O.L.C. at 332-33. And in 1992, we explained the President's authority to deploy troops in Somalia in terms of national interests in providing security for American civilians and military personnel involved in UNSCsupported humanitarian relief efforts and (once again) enforcing UNSC mandates. Military Forces in Somalia, 16 Op. O.L.C. at 10-12.2 In our view, the combination of at least two national interests that the President reasonably determined were at stake here--preserving regional stability and supporting the UNSC's credibility and effectiveness--provided a sufficient basis for the President's exercise of his constitutional authority to order the use of military force.3 First, the United States has a strong national security and foreign policy interest in security and stability in the Middle East that was threatened by Qadhafi's actions in Libya. As noted, we recognized similar regional stability interests as justifications for presidential military actions in Haiti and Bosnia. With respect to Haiti, we found "an obvious interest in maintaining peace and stability," "[g]iven the
As these examples make clear, defense of the United States to repel a direct and immediate military attack is by no means the only basis on which the President may use military force without congressional authorization. Accordingly, the absence of an immediate self-defense interest does not mean that the President lacked authority for the military operations in Libya. Although President Obama has expressed opposition to Qadhafi's continued leadership of Libya, we understand that regime change is not an objective of the coalition's military operations. See Obama March 28, 2011 Address ("Of course, there is no question that Libya--and the world--would be better off with Qaddafi out of power. I . . . will actively pursue [that goal] through non-military means. But broadening our military mission to include regime change would be a mistake."). We therefore do not consider any national interests relating to regime change in assessing the President's legal authority to order military operations in Libya.
3 2

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Authority to Use Military Force in Libya

proximity of Haiti to the United States," and particularly considering that "past instances of unrest in Haiti have led to the mass emigration of refugees attempting to reach the United States." 2004 Haiti Opinion at 3. In the case of Bosnia, we noted (quoting prior statements by President Clinton justifying military action) the longstanding commitment of the United States to the "'principle that the security and stability of Europe is of fundamental interest to the United States,'" and we identified, as justification for the military action, the President's determination that "[i]f the war in the former Yugoslavia resumes, 'there is a very real risk that it could spread beyond Bosnia, and involve Europe's new democracies as well as our NATO allies.'" Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. In addition, in another important precedent, President Clinton justified extensive airstrikes in the Federal Republic of Yugoslavia ("FRY") in 1999-- military action later ratified by Congress but initially conducted without specific authorization, see Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327 (2000)--based on concerns about the threat to regional security created by that government's repressive treatment of the ethnic Albanian population in Kosovo. "The FRY government's violence," President Clinton explained, "creates a conflict with no natural boundaries, pushing refugees across borders and potentially drawing in neighboring countries. The Kosovo region is a tinderbox that could ignite a wider European war with dangerous consequences to the United States." Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 527, 527 (Mar. 26, 1999). As his statements make clear, President Obama determined in this case that the Libyan government's actions posed similar risks to regional peace and security. Much as violence in Bosnia and Kosovo in the 1990s risked creating large refugee movements, destabilizing neighboring countries, and inviting wider conflict, here the Libyan government's "illegitimate use of force . . . [was] forcing many [civilians] to flee to neighboring countries, thereby destabilizing the peace and security of the region." Obama March 21, 2011 Report to Congress. "Left unaddressed," the President noted in his report to Congress, "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." Id. Without outside intervention, Libya's civilian population faced a "humanitarian catastrophe," id.; as the President put it on another occasion, "innocent people" in Libya were "being brutalized" and Qadhafi "threaten[ed] a bloodbath that could destabilize an entire region." Press Release, Office of the Press Secretary, The White House, Weekly Address: President Obama Says the Mission in Libya is Succeeding (Mar. 26, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/26/weekly- address-president-obama-says-mission-libya-succeeding. The risk of regional destabilization in this case was also recognized by the UNSC, which determined in Resolution 1973 that the "situation" in Libya "constitute[d] a threat to international peace and security." S.C. Res. 1973. As this Office has previously observed, "[t]he President is entitled to rely on" such UNSC findings "in making his determination that the interests of the United States justify providing the military assistance that [the UNSC resolution] calls for." Military Forces in Somalia, 16 Op. O.L.C. at 12.4
4

We note, however, that, at least for purposes of domestic law, a Security Council resolution is "not required as a precondition for Presidential action." Military Forces in Somalia, 16 Op. O.L.C. at 7. Rather, as we explained in 2004, "in exercising his authority as Commander in Chief and Chief Executive, the President [may] choose to take" the UNSC resolution into account "in evaluating the foreign policy and national security interests of the United States that are at stake." 2004 Haiti Opinion at 4.

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Qadhafi's actions not only endangered regional stability by increasing refugee flows and creating a humanitarian crisis, but, if unchecked, also could have encouraged the repression of other democratic uprisings that were part of a larger movement in the Middle East, thereby further undermining United States foreign policy goals in the region. Against the background of widespread popular unrest in the region, events in Libya formed "just one more chapter in the change that is unfolding across the Middle East and North Africa." Obama March 18, 2011 Remarks. Qadhafi's campaign of violence against his own country's citizens thus might have set an example for others in the region, causing "[t]he democratic impulses that are dawning across the region [to] be eclipsed by the darkest form of dictatorship, as repressive leaders concluded that violence is the best strategy to cling to power." Obama March 28, 2011 Address. At a minimum, a massacre in Libya could have imperiled transitions to democratic government underway in neighboring Egypt and Tunisia by driving "thousands of additional refugees across Libya's borders." Id. Based on these factors, we believe the President could reasonably find a significant national security interest in preventing Libyan instability from spreading elsewhere in this critical region. The second important national interest implicated here, which reinforces the first, is 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. Since at least the Korean War, the United States government has recognized that "'[t]he continued existence of the United Nations as an effective international organization is a paramount United States interest.'" Military Forces in Somalia, 16 Op. O.L.C. at 11 (quoting Authority of the President to Repel the Attack in Korea, 23 Dep't St. Bull. 173, 177 (1950)). Accordingly, although of course the President is not required to direct the use of military force simply because the UNSC has authorized it, this Office has recognized that "'maintaining the credibility of United Nations Security Council decisions, protecting the security of United Nations and related relief efforts, and ensuring the effectiveness of United Nations peacekeeping operations can be considered a vital national interest'" on which the President may rely in determining that U.S. interests justify the use of military force. Proposed Bosnia Deployment, 19 Op. O.L.C. at 333 (quoting Military Forces in Somalia, 16 Op. O.L.C. at 11). Here, the UNSC's credibility and effectiveness as an instrument of global peace and stability were at stake in Libya once the UNSC took action to impose a no-fly zone and ensure the safety of civilians--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, 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." Obama March 28, 2011 Address; see also Obama March 21, 2011 Report to Congress ("Qadhafi's defiance of the Arab League, as well as the broader international community . . . represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region."). We think the President could legitimately find that military action by the United States to assist the international coalition in giving effect to UNSC Resolution 1973 was needed to secure "a substantial national foreign policy objective." Military Forces in Somalia, 16 Op. O.L.C. at 12. We conclude, therefore, that the use of military force in Libya was supported by sufficiently important national interests to fall within the President's constitutional power. At the same time, turning to the second element of the analysis, we do not believe that 12


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anticipated United States operations in Libya amounted to a "war" in the constitutional sense necessitating congressional approval under the Declaration of War Clause. This inquiry, as noted, is highly fact-specific and turns on no single factor. See Proposed Bosnia Deployment, 19 Op. O.L.C. at 334 (reaching conclusion based on specific "circumstances"); Haiti Deployment, 18 Op. O.L.C. at 178 (same). Here, considering all the relevant circumstances, we believe applicable historical precedents demonstrate that the limited military operations the President anticipated directing were not a "war" for constitutional purposes. As in the case of the no-fly zone patrols and periodic airstrikes in Bosnia before the deployment of ground troops in 1995 and the NATO bombing campaign in connection with the Kosovo conflict in 1999--two military campaigns initiated without a prior declaration of war or other specific congressional authorization--President Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that "[t]he United States is not going to deploy ground troops in Libya." Obama March 18, 2011 Remarks. The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment of ground forces--two factors that this Office has identified as "arguably" indicating "a greater need for approval [from Congress] at the outset," to avoid creating a situation in which "Congress may be confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed." Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. Furthermore, also as in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a "limited mission" and did not "aim at the conquest or occupation of territory." Id. at 332. President Obama directed United States forces to "conduct[] a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster"; American airstrikes accordingly were to be "limited in their nature, duration, and scope." Obama March 21, 2011 Report to Congress. As the President explained, "we are not going to use force to go beyond [this] well-defined goal." Obama March 18, 2011 Remarks. And although it might not be true here that "the risk of sustained military conflict was negligible," the anticipated operations also did not involve a "preparatory bombardment" in anticipation of a ground invasion--a form of military operation we distinguished from the deployment (without preparatory bombing) of 20,000 U.S. troops to Haiti in concluding that the latter operation did not require advance congressional approval. Haiti Deployment, 18 Op. O.L.C. at 176, 179. Considering the historical practice of even intensive military action--such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999--without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the "anticipated nature, scope, and duration" of the use of force by the United States in Libya rose to the level of a "war" in the constitutional sense, requiring the President to seek a declaration of war or other prior authorization from Congress.

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Accordingly, we conclude that President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya--which were limited in their nature, scope, and duration--without prior congressional authorization.

/s/
 CAROLINE D. KRASS 
 Principal Deputy Assistant Attorney General 


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