HFAC'S HEARINGS ON TERRORISM AND THE WAR POWERS ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000600960021-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 40
• Document Creation Date: December 22, 2016
• Document Release Date: May 3, 2011
• Sequence Number: 21
• Publication Date: June 6, 1986
• Content Type: MEMO

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OCA 86-1874
6 June 1986
SUBJECT: HFAC's Hearings on Terrorism and the War Powers Act
1. On 29 April and 1 May 1986, the Subcommittee on Arms
Control, International Security and Science of the House
Committee on Foreign Affairs held hearings on the subject of
"Terrorism and the War Powers Act".
2. on 29 April, the witnesses were Abraham D. Sofaer,
Legal Advisor, Department of State (statement attached) and J.
Brian Atwood, Director, National Democratic Institute.
3. on 1 May, the witnesses were Archibold Cox, Chairman,
Common Cause (statement attached), and W. Taylor Reveley III,
Attorney, Hinton & Williams.
4. Issues directly affecting intelligence matters were not
directly raised or addressed. The bulk of the hearings
concerned discussions about the wisdom and constitutionality of
the War Powers Act and its applicability to the use of military
force in "terrorist situations", including the recent raid of
Libya.
5. The second day's hearings were attended by Chairman
Fascell, and Representatives Hyde, Solarz, Levine, and Berman.
The two witnesses strongly supported the Act. Questions
revolved around how it could be strengthened. There were,
howver, no proposals to amend the Act. Instead, the proposals
focused around Congressional "housekeeping" resolutions to
create a joint committee to act as the sole Congressional body
with which the Executive would consult under the act. There
was discussion about such a committee and its composition.
There seemed to be a tentative consensus it should include:
the majority and minority leaders of both houses; the Speaker
of the House; and, the chairmen and ranking minority members
from the foreign affairs, armed services and intelligence
committees of both houses. All agreed committee staff should
be small. All agreed, however, it would be difficult to obtain
Congressional agreement on formation of such a committee.
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6. The Dole/Denton legislation exempting terrorism from
the War Powers Act (with its counterpart in the House) was
discussed but did not seem to be very favorably received.
7. It was not clear that ary#*'2eZ'(!~slative action w/-uyl flow
from the hearing.
Distribution:
Original - OCA Subj File: Terrorism
1 - OCA Subj File: Covert Action
1 - OCA Subj File: Jt.Comm.on Intell.
1 - OCA Subj File: Libya
1 - D/OCA
1 - EXO/OCA
1 - OCA/Registry
1 - PS
OCA/LEG:F----](3 June 1986)
STAT
STAT
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ARCHIBALD COX
Chairman, Common Cause
on
THE WAR POWERS RESOLUTION
before
THE COMMITTEE ON FOREIGN AFFAIRS
of the
UNITED STATES HOUSE OF REPRESENTATIVES
Thursday, May 1, 1986
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Mr. Chairman and Members of the Committee:
I appreciate this opportunity to testify before the House
Foreign Affairs Committee on the War Powers Act of 1973.
The Committee deserves the support and heartfelt thanks of
the American people for undertaking a sensitive and difficult
task of both urgency and grave national importance. On the one
hand, all of us wish to be sure that the United States and its
government are, insofar as possible, equipped to combat, prevent,
deter, and punish the terrorists and sponsors of terrorism, who
are so savagely destroying property and mutilating and murdering
innocent people. On the other hand, it is essential to our
survival as a self-governing people that the fear of terrorism
and our passionate sense of outrage at acts of terrorism not be
used, or even allowed, to rush us into hastily upsetting the
constitutional allocation of war-making powers as clarified and
implemented by the War Powers Resolution of 1973. What is
required is the kind of careful, sober and informed inquiry that
this Committee is equipped to give to two related questions:
I. Does the urgent need for effective action to prevent,
punish and deter terrorism require modification of the War Powers
Resolution?
II. Can and should the War Powers Resolution be improved
and strengthened so as to assure that the United States is not
committed to armed hostilities that may lead to war, without the
full participation of the people of the United States through
their representatives in Congress?
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In approaching these questions I start from the premise that
although we should be open-minded in considering whether there is
need for change to meet present exigencies, the basic allocation
of power between the Congress and the Executive defined by the
War Powers Resolution is both constitutional and wise. The
Constitution vests in Congress the power "to declare war."
Madison's notes make plain that this means all power to make war
is vested in Congress, except for the limited power to repel an
armed attack upon the United States or its Armed Forces. That is
the virtually unanimous meaning put upon the Constitution by its
Framers, as demonstrated in oft-quoted passages from Thomas
Jefferson, James Madison, James Iredell, James Wilson and William
Patterson. The Supreme Court of the United States has adopted
this interpretation when the issue has been raised. In Talbot v.
Seeman 1 Cranch, 1, 26 (1801), Chief Justice Marshall said for a
unanimous Court --
The whole powers of war being, by the constitution of
the United States vested in congress, the acts of that
body can alone be resorted to as our guides in this
inquiry [into authority for the capture of a foreign
vessel in time of international conflict].
Similarly, in the Prize Cases, 67 U.S. 635, 668 (1863), the Court
By the Constitution, Congress alone has the power to
declare a national or foreign war. . . . [The Presi-
dent] has no power to initiate or declare a war either
against a foreign nation or a domestic state.
The constitutional designation of the President as the "Comman-
der-in-Chief of the Army and Navy of the United States" is not
inconsistent with this conclusion. As explained by Alexander
Hamilton in The Federalist Papers --
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[T]he President is to be Commander in Chief of the Army
and Navy of the United States. In this respect his
authority would be nominally the same with that of the
King of Great Britain, but in substance much inferior
to it. It would amount to nothing more than the
supreme command and direction of the military and naval
forces, as first General and Admiral of the confeder-
acy; while that of the British King extends to the
declaring of war and to the raising and regulating of
fleets and armies; all which, by the Constitution under
consideration, would appertain to the Legislature.
(emphasis in original.)
The argument that history validates the assertion of broader
executive authority rests upon a misconception. That Presidents
did exercise broader authority for many years is beyond question;
but as Justice Jackson pointed out in his concurring opinion in
Youngstown Steel and Tube Co. v. Sawyer 343 U.S. 579, 634 (1952),
the powers that the President may exercise with the silent acqui-
escence of Congress are much broader than the powers irretriev-
ably vested in him by virtue of Article II and his Office. The
Constitution also gives Congress explicit authority "to make
rules for the government and regulation of the land and naval
forces," and to "make all laws which shall be necessary and
proper for carrying into execution" any power vested in the
government of the United States or in any Officer.
By enacting the War Powers Resolution, Congress wisely
reasserted its control in a time when the nature of hostilities
was undergoing radical change, and thus constitutionally defined
and confined the discretion of the President. That action too
was responsive to an original theme. As explained by Thomas
Jefferson in 1789 --
We have already given in example one effectual check to
the Dog of war by transferring the power of letting him
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loose from the Executive to the Legislative body, from
those who are to spend to those who are to pay.
I.
Does the urgent need for effective action to prevent, punish
and deter terrorism require modification of the War Powers
Resolution?
1. In considering whether other, new legislation is needed
for the United States to cope with terrorism as effectively as
possible the Committee will wish to take note of the flexibility
already available to the President under the War Powers Resolu-
tion. The restrictions seem to me to be few and not unreason-
able.
(a) The President may not initiate a war, even on a country
that supports terrorists, without a declaration of war by Con-
gress. Surely, both the Constitution and sound policy require
that the people of the United States grant authority, through
their representatives, before they are committeed to such hostil-
ities. As Abraham Lincoln said, "no one man should hold the
power of [making war]." Only an expression of the combined
judgment of the President and the Congress can ensure that, if
the American people must go to war, they will stand united.
(b) The only other advance restriction on the President's
discretion in use of the Armed Forces to counter or prevent
terrorism is Section 3 of the War Powers Resolution, which
requires the President to consult Congress "in every possible
instance" before --
introducing the United States into hostilities or into
situations where imminent involvement in hostilities is
clearly indicated by the circumstances.
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I would suppose, Mr. Chairman, that these words left consid-
erable room for using without prior consultation small units of
military personnel directly against terrorists where there is no
attack upon a de jure or de facto government and there is no
clear indication that the de jure or de facto government will
resist the counter-terrorist measure. The steps that occur to
me, if confined within this limitation, include, for example --
The direct prevention of acts of terrorism.
The direct protection of embassies, consulates and
military installations.
-- Such activities as the use of the U.S. Air Force to
intercept and force the landing of an Egyptian airplane
believed to carry the terrorists responsible for the
hijacking of the Achille Lauro cruise ship.
-- The participation of U.S. forces, alongside British
forces, in an attempt to rescue American hostages
hypothetically being held in the U.S. embassy in London
by Libyan terrorists.
I repeat that these are examples of what might be done only
if there is no attack upon a de jure or de facto government and
no clear indication that the de jure or de facto government will
resist the counter-terrorist measure. But the steps are not
unimportant.
(c) I shall discuss the requirement of "consultation" -- not
just notification but genuine consultation -- in more detail
later as an illustration of the need to clarify and strengthen
the War Powers Resolution. It is enough to say now that genuine
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consultation with Congress seems hardly to be an onerous re-
striction when one bears in mind the need for bi-partisan support
and national unity. The President retains the power of decision.
Surely, any foreseeable "bugs" in establishing a format of
consultation can be worked out in advance, if the National
Security Establishment will substitute a new spirit of coop-
eration with the Congress for its present grudging resistance to
the War Powers Resolution.
(d) The remaining restrictions on Presidential actions
imposed by the Resolution similarly do not impair the President's
flexibility to respond to terrorism. They require reports to
Congress after the event and establish a 60-day deadline beyond
which troops must be withdrawn absent Congressional action -- a
declaration of war or authorization of their continued presence.
If more than 60 days of foreign operations is required, the
magnitude of the operation deserves a Congressional vote upon
continuance.
(e) Still another course is open to the President under
existing law. The President may seek specific statutory author-
ization to use the Armed Forces of the United States in such
narrowly defined ways as he deems necessary from time to time
against a specific country or countries supporting terrorism, for
a specific period of time. The Joint Resolution authorizing
participation in the international peace-keeping force in Lebanon
shows the kind of procedure available, even though the occasion
and the action authorized were altogether different.
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It may be objected that seeking and granting such authority
might exacerbate relations with the country sponsoring terrorism.
Surely such action would never be taken unless relations with the
government supporting terrorism were already as bad as could be,
and that government had been warned that continuance of the same
course would risk countermeasures designed to protect American
lives. The resolution could not make the already intolerable
situation worse. Nor would it increase the danger to Americans
in the Armed Forces by detailing the time and place of specific
countermeasures. Within the Congressionally prescribed range of
tactics the choice should be left to the President and the Armed
Services.
In pointing to this course I am not unmindful of the Tonkin
Gulf Resolution of 1964. That unhappy source of later contro-
versy warns not only of the dangers of acting loosely and rashly
in a surge of emotion, but also of the need for skillful drafts-
manship. The problems of draftsmanship undoubtedly require more
thought now, in advance; but I am inclined to think that they are
susceptible of wise resolution.
2. The bill offered in the other branch by Senators Dole
and Denton and in the House by Representatives Barton, Hunter and
Livingston is, in my judgment, an unnecessary, rash and highly
dangerous over-reaction. If adopted, the bill would authorize
the President to use the Armed Forces of the United States "as he
deems necessary" to counter terrorism; in other words, in any way
and on any scale he may choose. The bill would supersede the War
Powers Resolution. As explained by Senator Dole, it gives
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authority to preempt terrorism without waiting for any specific
acts of terrorism. The net effect is to authorize use of the
Armed Forces at any time and on any scale that the President may
say is useful to deter terrorism. Libya, Syria, Iran, Bulgaria,
Viet Nam and Nicaragua come quickly to mind.
To be specific, President Reagan has said that the Sandin-
ista regime in Nicaragua is training and giving refuge to terror-
ists. The Dole bill would empower the President to send Armed
Forces to Nicaragua at once to punish or topple that regime and
to keep them there indefinitely.
We of Common Cause sincerely hope that this Committee and
the Congress will reject any such legislation.
II.
Can and should the War Powers Resolution be improved and
strengthened so as to assure that the United States is not
committed to armed hostilities against a foreign nation that may
lead to war, without the full participation of the people of the
United States through their representatives in Congress?
1. In considering whether the War Powers Resolution should
be improved and strengthened so as to prevent further erosion of
the powers of Congress by executive action, the Committee may
first wish to focus upon Section 3, which provides that the
President --
In every possible instance shall consult with Congress
before introducing U.S. Armed Forces into hostilities
or into situations where imminent involvement in
hostilities is clearly indicated by the circum-
stances. . . .
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The bombing of Libyan military installations without prior
consultation with representative Congressional leaders plainly
violated the spirit and intent of Section 3. Very probably it
also violated the literal words.
The use of 25 warplanes to invade the airspace of a foreign
nation and to attack its military installations and armed forces
would seem pretty clearly to fall within the words, "before
introducing United States Armed Forces into hostilities." If
not, surely the action introduces them into a situation "where
imminent involvement in hostilities is clearly indicated by the
circumstances." No one could rationally have supposed that the
Libyan armed forces would not shoot back.
Equally clearly, this was a situation in which it was
"possible" for the President to engage in consultation with
representatives of Congress.
Again plainly, there was no consultation before the step was
taken. The meaning of "consult" is plain enough. The report of
this Committee in recommending the bill that became the War
Powers Resolution explains the intended significance (H. Rep. No.
93-287, p. 6):
A considerable amount of attention was given to the
definition of consultation. Rejected was the notion
that consultation should be synonymous with merely
being informed. Rather, consultation in this provision
means that a decision is pending on a problem that
Members of Congress are being asked by the President
for their advice and opinions and, in appropriate
circumstances, their approval of action being contem-
plated. Furthermore, for consultation to be meaning-
ful, the President himself must participate and all
information relevant to the situation must be made
available.
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In the case of the bombing of Libya, Congressional leaders
were merely informed of the operation after the bombers had been
underway for two hours. In a letter to the President, Senate
Minority Leader Robert Byrd, Ranking Member of the Foreign
Relations Committee Claiborne Pell, Ranking Member of the Armed
Services Committee Sam Nunn, and Patrick Leahy, Vice Chairman of
the Select Committee on Intelligence said --
. . . the first indication of your decision was at a
meeting Monday afternoon at the White House, after the
operation was already underway, and this amounted to a
notification of your actions rather than the consulta-
tion required by law.
In the course of commenting on the Libya attack, House Minority
Leader Robert H. Michel said, "We really ought to have some sort
of vehicle for getting Congress into the mix, so we're not left
out in the cold."
Senator Nunn further commented, "I don't think there was
enough consultation . . . there should have been more . . . when
the President is examining some of the options, it would be
helpful for Congressional leaders to look at some of those
options, before he decides. That's consultation."
The only possible uncertainty about the justice of the
charge of violation arises from the fact that Section 3 requires
the President in such situations to consult "with Congress," if
possible, before he acts. I would suppose that in this context
those words pretty clearly mean "consult with Congress through
its representative leaders." Perhaps no other course is possible
when military action must be taken promptly and without advance
warning.
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The intent is already plain enough, but I suggest that the
Committee should carefully consider removing any verbal uncer-
tainty by an amendment specifying that the consultation shall
take place with representatives of Congress. Here the proposal
advanced by Senators Byrd, Leahy, Nunn and Pell in their letter
to the President, specifying eighteen Senators and Representa-
tives by office, may furnish a starting point for further deli-
beration by the Foreign Affairs Committee.
I can think of only two possible objections to this kind of
clarification. The first -- that the President should not be
required to consult anyone -- hardly deserves mention. The
second -- that consultation might endanger secrecy -- seems to me
equally without merit. Serious consideration of the introduction
of United States Armed Forces into hostilities or into situations
where hostilities are imminent, requires the involvement of at
least thirty-five or forty individuals in the Executive Branch.
The addition of a reasonable number of responsible Congressional
leaders surely would not appreciably increase the danger of
leaks, especially if their commitment to secrecy were made plain.
Congressional leaders are no less responsible than Executive
officials.
2. May I also suggest in this connection, Mr. Chairman,
that the members of this Committee may wish to put their minds on
establishing informally those further mechanisms for consultation
that cannot wisely be frozen into statutory form. Such mecha-
nisms might well call for continual informal consultation accord-
ing to a set procedure even before the War Powers Resolution
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requires it, as well as for the consultation that the Resolution
mandates.
Such arrangements would require sincere cooperation from the
Executive Branch. The past record is not encouraging in this
respect, but, at least until the contrary is established, the
opportunity deserves exploration. It is hard to believe that
adamant insistence upon one view of Presidential prerogatives --
a view that excludes participation of the Congress as the most
representative arm of the people -- will continue to lead the
President to turn away from the only available mechanism for
securing the bi-partisanship and national unity necessary to
support measures that in the present troubled international
situation may be required by terrorism and like hostilities short
of war.
3. If the Committee decides to recommend legislation, I
suggest that it also consider introducing a definition of "con-
sult" that captures the essence of its 1973 report quoted above
and thus leaves no room for evasion.
4. Finally, because of the decision of the U.S. Supreme
Court in INS v. Chadha, 462 U.S. 919 (1983), the Committee may
wish to give careful attention to Section 5 of the War Powers
Resolution. As enacted, Section 5 not only limits to 60 days the
duration of the power of the President to keep the Armed Forces
engaged in hostilities or in situations in which an outbreak of
hostilities is imminent; it also reserves to Congress the right
to require the recall of the Armed Forces in less than 60 days by
concurrent resolution. The Chadha decision casts no doubt upon
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the 60 day limitation, but the Court's opinion presents a risk
that the reservation of Congressional power to require an earlier
halt would be held unconstitutional.
On the one hand, Chadha is distinguishable: first, because
the case involved action by less than the whole Congress; second,
because the War Powers Resolution regularizes and clarifies the
constitutional division of power between Congress and the Execu-
tive whereas the immigration law was a straightout delegation of
power; and third, because Section 5(c) may be fairly described as
a limitation upon the duration of any Presidential authority
whereas Chadha attempted to reserve Congressional power to
overrule a President's decision in specific instances while
leaving the delegated power unaffected.
On the other hand, if the language in the Chadha opinion
indicating that Congress cannot act effectively except upon
compliance with the Presentment Clause has universal application,
then Section 5(c) cannot survive. (Because the War Powers
Resolution contains a separability clause, the provisions of the
Resolution would remain unaffected.)
If the Committee reviews Section 5(c), two alternatives
deserve its careful consideration.
(a) One is to substitute words calling for a Joint Resolu-
tion in place of the present provision for a concurrent resolu-
tion. Presentation of a Joint Resolution to the President would
seem to satisfy even the most expansive reading of Chadha, but it
would also diminish the role of Congress because the Joint
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Resolution would have to be signed by the President or passed
over his veto.
(b) The second, and probably preferable, alternative is to
shorten from 60 days to 30 days the period for which the Presi-
dent may use the Armed Forces in a manner short of making war
without specific authority from Congress. We urge the Committee
to give this step the most careful consideration. I am confident
that, in situations where both the national honor and war and
peace are at stake, Congress has the capacity to organize itself
to act wisely and with all deliberate speed. In such situations,
the constitutional balance of power, the need for bi-partisan
support and national unity before going further in hostilities,
and the preservation of democratic self-government, all require a
decision by Congress as the most representative organ of the
people.
III.
In weighing the need for any change in the War Powers
Resolution the Committee must take account of the unhappy fact
that the entire National Defense Establishment continues persis-
tently to resist the participation of the people's elected
representatives in decisions involving the introduction of Armed
Forces into hostilities or situations in which the risk of
hostilities is imminent; it resists even though the lives of
hundreds or even thousands of Americans may be lost and the
Nation may be precipitated into war. The War Powers Resolution
is attacked as unconstitutional. Executive compliance has
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usually been grudging and without acceptance of the statutory and
constitutional obligation. The point is illustrated by U.S.
military actions in Grenada, Lebanon, and Libya and very prob-
ably, in El Salvador and Nicaragua. The spirit, if not the
letter, of the requirement for prior consultation has been
repeatedly violated. Clearly, the utmost latitude will be read
into any new exceptions or modifications. To say this is not to
question or approve in any other respect the action the President
took against Kaddafi.
Under these circumstances, I suggest, Mr. Chairman, that
this Committee should seek an appropriate way of expressing its
commitment and the commitment of Congress to the War Powers
Resolution -- indeed its commitment not only to the Resolution
but also to the constitutional right of the Congress to share in
any decision to commit U.S. Armed Forces to hostilities or into
situations where the risk of hostilities is imminent. The
realities of today's complex international environment are such
that there will be repeated need to consider the use of U.S.
Armed Forces in hostilities short of war. We should not shrink
from the choice when there is genuine necessity. But in making
those choices the role of Congress and the balance of war-making
powers envisioned by the Founding Fathers and laid out in the War
Powers Resolution should be preserved. The decision to commit
U.S. troops into hostilities is of such profound importance that
it should be and must remain a shared responsibility of the
Executive and Legislative branches.
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The late Senator Javits warned that, "Whether or not the
[War Powers] Resolution is enforced will . . . depend upon the
determination of the Congress to stand up and fight for its
constitutional rights respecting war, on the one hand, and the
power of the President to get the country to side with him
politically and thus make the Resolution a nullity, on the
other." It is now up to the Congress, and through it the people,
to reconfirm and exercise its constitutional responsibility so
that this and future administrations follow the spirit and letter
of the law and the Resolution is neither undermined nor eroded.
In our outrage at terrorists and the sponsors of terrorism
we must not forget that the history of liberty is one of constant
vigilance against the accumulation of power by an executive. We
must take care, now more than ever, not to erode one of our most
precious national legacies -- the system of checks and balances
that for nearly two hundred years has kept out Nation free and
preserved our people's liberties.
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STATEMENT OF ABRAHAM n. SOFAER
LEGAL ADVISER OF THE DEPARTMENT OF STATE
TO THE SUBCOMMITTEE ON ARMS CONTROL.
INTERNATIONAL SECURITY AND SCIENCE OF THE
COMMITTEE ON FOREIGN AFFAIRS
OF THE HOUSE OF REPRESENTATIVES
TUESDAY, APRIL 29, 1986
MR. CHAIRMAN, MEMBERS OF THE SUBCOMMITTEE:
I AM PLEASED TO HAVE THE OPPORTUNITY TO APPEAR BEFORE
YOU TODAY TO DISCUSS THE WAR POWERS RESOLUTION IN THE CONTEXT
OF RECENT EVENTS. I WOULD LIKE TO BEGIN BY SETTING OUT SOME
GENERAL CONSIDERATIONS REGARDING THE RESOLUTION, AND THEN
FOCUS ON THE APPLICATION OF THE RESOLUTION TO SPECIFIC CASES
WHICH ARE OF PARTICULAR INTEREST TO THE SUBCOMMITTEE.
BASIC FRAMEWORK
THE WAR POWERS RESOLUTION WAS ENACTED IN 1973 IN ORDER
TO ENSURE CONGRESSIONAL INVOLVEMENT IN SITUATIONS IN WHICH
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THE UNITED STATES MAY BECOME ENGAGED IN HOSTILITIES WITH
OTHER STATES. TO THAT END, THE RESOLUTION CONTAINS CERTAIN
REQUIREMENTS CONCERNING CONSULTATION, REPORTING, AND
TERMINATION OF THE USE OF U.S. ARMED FORCES. OF COURSE. THIS
AND OTHER ADMINISTRATIONS HAVE EXPRESSED SERIOUS DOUBTS ABOUT
THE WISDOM AND CONSTITUTIONALITY OF VARIOUS PARTS OF THE
RESOLUTION.
THE CONSULTATION REQUIREMENT IS CONTAINED IN SECTION 3.
WHICH PROVIDES:
THE PRESIDENT IN EVERY POSSIBLE INSTANCE
SHALL CONSULT WITH CONGRESS BEFORE
INTRODUCING UNITED STATES ARMED FORCES INTO
HOSTILITIES OR INTO SITUATIONS WHERE IMMINENT
INVOLVEMENT IN HOSTILITIES IS CLEARLY
INDICATED BY THE CIRCUMSTANCES, AND AFTER
EVERY SUCH INTRODUCTION SHALL CONSULT
REGULARLY WITH THE CONGRESS UNTIL UNITED
STATES ARMED FORCES ARE NO LONGER ENGAGED IN
HOSTILITIES OR HAVE BEEN REMOVED FROM SUCH
SITUATIONS."
THE RESOLUTION SPECIFIES ONLY THAT CONSULTATION OCCUR
"BEFORE INTRODUCING" ARMED FORCES IN THE SITUATIONS
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SPECIFIED. AS WELL AS "AFTER" EACH SUCH INTRODUCTION UNTIL
THE SITUATION ENDS. IT DOES NOT DEFINE THE NATURE OF THE
CONSULTATIONS REQUIRED, BUT ALLOWS THE PRESIDENT TO DETERMINE
PRECISELY HOW SUCH CONSULTATIONS ARE TO BE CARRIED OUT.
SIGNIFICANTLY, IN MAKING THE REQUIREMENT APPLICABLE ONLY
WHERE CONSULTATION IS "POSSIBLE." THE RESOLUTION EXPRESSLY
CONTEMPLATES THAT CONSULTATION IN A PARTICULAR CASE WILL
DEPEND ON THE PREVAILING CIRCUMSTANCES.
OVER THE YEARS, BOTH BEFORE AND AFTER THE RESOLUTION WAS
ADOPTED, THE EXECUTIVE BRANCH HAS ENGAGED IN CONSULTATIONS
WITH THE CONGRESS IN A VARIETY OF CIRCUMSTANCES INVOLVING THE
POSSIBLE DEPLOYMENT OF U.S. FORCES ABROAD. CONSULTATIONS
HAVE OCCURRED IN CASES WHERE THE RESOLUTION MIGHT HAVE BEEN
THOUGHT TO REQUIRE THEM AND IN CASES WHERE IT CLEARLY WOULD
NOT (AND THE EXECUTIVE BRANCH HAS TYPICALLY BEEN CAREFUL TO
PRESERVE ITS POSITION ON THESE MATTERS WHEN CONSULTING). THE
PURPOSE OF SUCH CONSULTATIONS IS TO KEEP THE CONGRESS
INFORMED, TO DETERMINE WHETHER THE CONGRESS APPROVES OF A
PARTICULAR ACTION OR POLICY, AND TO GIVE THE CONGRESS AN
OPPORTUNITY TO PROVIDE THE PRESIDENT WITH ITS VIEWS,
ESPECIALLY WHERE IT MAY DISAGREE WITH THE POLICY.
CONSULTATIONS ARE NOT INTENDED TO INVOLVE THE CONGRESS IN
REVIEWING THE DETAILED PLANS OF A MILITARY OPERATION. THE
DEGREE TO WHICH THE PRESIDENT IS IMPLEMENTING A POLICY OF
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WHICH THE CONGRESS IS WELL AWARE AND WHICH IT HAS ALREADY
APPROVED IN PRINCIPLE IS ONE IMPORTANT FACTOR TO BE
CONSIDERED IN DETERMINING THE NATURE AND TIMING OF
CONSULTATIONS.
IN PRACTICE, THE FORM AND SUBSTANCE OF CONSULTATIONS
HAVE DEPENDED UPON THE CIRCUMSTANCES OF EACH CASE. IN SOME
INSTANCES. SUCH AS THE INTRODUCTION OF U.S. FORCES INTO EGYPT
TO PARTICIPATE IN PEACEKEEPING OPERATIONS, OR THE CASE OF THE
VIETNAM EVACUATION, THE SITUATION PERMITTED DETAILED
CONSULTATIONS WELL IN ADVANCE OF THE ACTION CONTEMPLATED. IN
THE CASE OF THE TEHRAN RESCUE MISSION, PRIOR CONSULTATION WAS
NOT POSSIBLE BECAUSE OF EXTRAORDINARY OPERATIONAL NEEDS.
SECTION 4 OF THE RESOLUTION REQUIRES THAT THE PRESIDENT
SUBMIT. WITHIN 48 HOURS AFTER THE INTRODUCTION OF U.S.
FORCES, A WRITTEN REPORT TO THE CONGRESS IN THREE
CIRCUMSTANCES. A REPORT MUST BE SUBMITTED WHEN U.S. FORCES
ARE INTRODUCED "INTO HOSTILITIES OR INTO SITUATIONS WHERE
IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY
THE CIRCUMSTANCES." IN ADDITION. A REPORT MUST BE SUBMITTED
WHEN U.S. FORCES ARE INTRODUCED "INTO THE TERRITORY, AIRSPACE
OR WATERS OF A FOREIGN NATION, WHILE EQUIPPED FOR COMBAT"
(WITH CERTAIN SPECIFIED EXCEPTIONS). OR WHEN SUCH FORCES ARE
INTRODUCED "IN NUMBERS WHICH SUBSTANTIALLY ENLARGE UNITED
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STATES ARMED FORCES EQUIPPED FOR COMBAT ALREADY LOCATED IN A
FOREIGN NATION ...."
BOTH REPUBLICAN AND DEMOCRATIC PRESIDENTS HAVE PROVIDED
WRITTEN REPORTS TO THE CONGRESS WITH RESPECT TO U.S.
DEPLOYMENTS ABROAD AS A MEANS OF KEEPING THE CONGRESS
INFORMED, WHILE RESERVING THE EXECUTIVE BRANCH'S POSITION ON
THE TECHNICAL APPLICABILITY AND CONSTITUTIONALITY OF THE
RESOLUTION. REPORTS WERE SUBMITTED BY PRESIDENT FORD IN
CONNECTION WITH THE INDOCHINA EVACUATIONS AND THE MAYAGUEZ
INCIDENT. AND BY PRESIDENT CARTER IN CONNECTION WITH THE
TEHRAN RESCUE MISSION. DURING THE REAGAN ADMINISTRATION.
REPORTS WERE SUBMITTED WITH RESPECT TO U.S. PARTICIPATION IN
THE MULTINATIONAL FORCE AND OBSERVERS IN THE SINAI AND THE
MULTINATIONAL FORCE IN LEBANON, THE DEPLOYMENT OF U.S.
AIRCRAFT IN CONNECTION WITH THE SITUATION IN CHAD. AND THE
INTRODUCTION OF U.S. FORCES INTO GRENADA. MORE RECENTLY. A
REPORT WAS SUBMITTED CONCERNING THE ENCOUNTER WITH LIBYAN
FORCES DURING U.S. MILITARY EXERCISES IN AND NEAR THE GULF OF
SIDRA IN LATE MARCH. AND A REPORT WAS SUBMITTED WITH RESPECT
TO THE APRIL 14 OPERATION AGAINST LIBYA. INDEED. THE
EXECUTIVE BRANCH HAS PROVIDED INFORMATION TO THE CONGRESS IN
MANY CASES WHERE NO RELEVANT STATUTORY REQUIREMENT
EXISTED.
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SECTION 5 OF THE RESOLUTION PROVIDES THAT WITHIN 60 DAYS
AFTER A REPORT IS SUBMITTED OR REQUIRED TO BE SUBMITTED, THE
PRESIDENT MUST TERMINATE THE USE OF U.S. FORCES UNLESS THE
CONGRESS HAS DECLARED WAR OR SPECIFICALLY AUTHORIZED THE USE
OF SUCH FORCES, HAS EXTENDED THE 60-DAY PERIOD OR IS
PHYSICALLY UNABLE TO MEET AS A RESULT OF AN ARMED ATTACK ON
THE UNITED STATES. THE SECTION ALSO PROVIDES THAT THE
PRESIDENT MUST REMOVE U.S. FORCES FROM ENGAGEMENT IN
HOSTILITIES ABROAD "IF THE CONGRESS SO DIRECTS BY CONCURRENT
RESOLUTION." THE LEGISLATIVE VETO PROVISION OF THE
RESOLUTION CANNOT STAND IN THE FACE OF THE SUPREME COURT'S
1983 DECISION IN INS V. CHADHA.
THE EXECUTIVE BRANCH HAS HISTORICALLY DIFFERED WITH THE
CONGRESS OVER THE WISDOM AND CONSTITUTIONALITY OF THE 60-DAY
PROVISION OF SECTION 5. AS PRESIDENT REAGAN MADE CLEAR IN
SIGNING THE MULTINATIONAL FORCE IN LEBANON RESOLUTION ON
OCTOBER 12, 1983, THE IMPOSITION OF SUCH ARBITRARY AND
INFLEXIBLE DEADLINES CREATES UNWISE LIMITATIONS ON
PRESIDENTIAL AUTHORITY TO DEPLOY U.S. FORCES IN THE INTERESTS
OF U.S. NATIONAL SECURITY. SUCH DEADLINES CAN UNDERMINE
FOREIGN POLICY JUDGMENTS, AND ADVERSELY AFFECT OUR ABILITY
SAFELY AND EFFECTIVELY TO DEPLOY U.S. FORCES IN SUPPORT OF
THOSE JUDGMENTS. MOREOVER. THE PRESIDENT'S CONSTITUTIONAL
AUTHORITY CANNOT IN ANY EVENT BE IMPERMISSIBLY INFRINGED BY
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STATUTE. SECTION 8(D) OF THE RESOLUTION ITSELF MAKES CLEAR
THAT THE RESOLUTION WAS NOT INTENDED TO ALTER THE
CONSTITUTIONAL AUTHORITY OF THE PRESIDENT. THE PRESIDENT HAS
CONSTITUTIONAL POWER, AS COMMANDER-IN-CHIEF AND AS THE
NATION'S PRINCIPAL AUTHORITY FOR THE CONDUCT OF FOREIGN
AFFAIRS, TO DIRECT AND DEPLOY U.S. FORCES IN THE EXERCISE OF
SELF-DEFENSE, INCLUDING THE PROTECTION OF AMERICAN CITIZENS
FROM ATTACKS ABROAD. FROM THE TIME OF JEFFERSON TO THE
PRESENT, PRESIDENTS HAVE EXERCISED THEIR AUTHORITY UNDER THE
CONSTITUTION TO USE MILITARY FORCE TO PROTECT AMERICAN
CITIZENS ABROAD.
I WOULD ALSO MENTION THAT SERIOUS CONSTITUTIONAL
PROBLEMS EXIST WITH RESPECT TO SECTION 8(A) OF THE
RESOLUTION, WHICH PURPORTS TO LIMIT THE MANNER IN WHICH THE
CONGRESS MAY IN THE FUTURE AUTHORIZE THE USE OF U.S. FORCES.
I DO NOT BELIEVE THAT ONE CONGRESS BY STATUTE CAN SO LIMIT
THE CONSTITUTIONAL OPTIONS OF FUTURE CONGRESSES. NOR CAN
CONGRESS CONTROL THE LEGAL CONSEQUENCES OF ITS OWN ACTIONS.
IF A PARTICULAR CONGRESSIONAL ACTION CONSTITUTES LEGAL
AUTHORITY FOR THE PRESIDENT TO UNDERTAKE A SPECIFIC
OPERATION, I DOUBT THAT ONE CONGRESS CAN CHANGE THAT FACT FOR
ALL FUTURE TIMES BY REQUIRING A SPECIFIC FORM OF APPROVAL.
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RECENT CASES
THE WAR POWERS RESOLUTION WAS ENACTED IN THE SHADOW OF
U.S. INVOLVEMENT IN THE VIETNAM WAR, AND OF THE SO-CALLED
WATERGATE SCANDALS. IN MORE RECENT YEARS. HOWEVER, ISSUES
HAVE BEEN RAISED UNDER THE RESOLUTION IN SITUATIONS THAT BEAR
NO RESEMBLANCE TO THE VIETNAM WAR AND. IN FACT. MAY NOT HAVE
BEEN CONTEMPLATED AT THE TIME OF ITS ADOPTION.
IT IS A REGRETTABLE REALITY IN TODAY'S WORLD THAT
AMERICANS ABROAD ARE INCREASINGLY SUBJECTED TO MURDER.
KIDNAPPINGS AND OTHER ATTACKS BY TERRORISTS WHO SEEK TO
FURTHER THEIR POLITICAL ENDS THROUGH SUCH MEANS. THE
HIJACKING LAST YEAR OF TWA FLIGHT 847, WITH THE MURDER OF
NAVY DIVER STETHEM, IS A WELL-KNOWN RECENT EXAMPLE. IN THAT
CASE. WE HAD NO REASON TO BELIEVE THAT THE GOVERNMENT OF
LEBANON HAD ENCOURAGED OR OTHERWISE SUPPORTED THE TERRORISTS:
IT WAS SIMPLY UNABLE TO CONTROL THEM. IN SUCH A SITUATION,
THE PRESIDENT MAY DECIDE TO DEPLOY SPECIALLY-TRAINED
ANTI-TERRORIST UNITS IN AN EFFORT TO SECURE THE RELEASE OF
THE HOSTAGES OR TO CAPTURE THE TERRORISTS WHO PERPETRATED THE
ACT. DOES THE WAR POWERS RESOLUTION REQUIRE CONSULTATION AND
REPORTING IN THIS KIND OF SITUATION?
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WE HAVE SUBSTANTIAL DOUBT THAT THE RESOLUTION SHOULD, IN
GENERAL, BE CONSTRUED TO APPLY TO THE DEPLOYMENT OF SUCH
ANTI-TERRORIST UNITS, WHERE OPERATIONS OF A TRADITIONAL
MILITARY CHARACTER ARE NOT CONTEMPLATED AND WHERE NO
CONFRONTATION IS EXPECTED BETWEEN OUR UNITS AND FORCES OF
ANOTHER STATE. To BE SURE, THE LANGUAGE OF THE RESOLUTION
MAKES NO EXPLICIT EXCEPTION FOR ACTIVITIES OF THIS KIND. BUT
SUCH UNITS CAN REASONABLY BE DISTINGUISHED FROM "FORCES
EQUIPPED FOR COMBAT" AND THEIR ACTIONS AGAINST TERRORISTS
DIFFER GREATLY FROM THE "HOSTILITIES" CONTEMPLATED BY THE
RESOLUTION.
NOTHING IN THE LEGISLATIVE HISTORY INDICATES, MOREOVER.
THAT THE CONGRESS INTENDED THE RESOLUTION TO COVER
DEPLOYMENTS OF SUCH ANTI-TERRORIST UNITS. THESE UNITS ARE
NOT CONVENTIONAL MILITARY FORCES. A RESCUE EFFORT OR AN
EFFORT TO CAPTURE OR OTHERWISE DEAL WITH TERRORISTS. WHERE
THE FORCES OF A FOREIGN NATION ARE NOT INVOLVED. IS NOT A
TYPICAL MILITARY MISSION. AND OUR ANTI-TERRORIST FORCES ARE
NOT EQUIPPED TO CONDUCT SUSTAINED COMBAT WITH FOREIGN ARMED
FORCES. RATHER. THESE UNITS OPERATE IN SECRECY TO CARRY OUT
PRECISE AND LIMITED TASKS DESIGNED TO LIBERATE U.S. CITIZENS
FROM CAPTIVITY OR TO ATTACK TERRORIST KIDNAPPERS AND
KILLERS. WHEN USED, THESE UNITS ARE NOT EXPECTED TO CONFRONT
THE MILITARY FORCES OF A SOVEREIGN STATE. IN A REAL SENSE.
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THEREFORE. ACTION BY AN ANTI-TERRORIST UNIT CONSTITUTES A USE
OF FORCE THAT IS MORE ANALOGOUS TO LAW ENFORCEMENT ACTIVITY
BY POLICE IN THE DOMESTIC CONTEXT THAN IT IS TO THE
"HOSTILITIES" BETWEEN STATES CONTEMPLATED BY THE WAR POWERS
RESOLUTION.
I MIGHT NOTE, IN THIS CONNECTION, THAT OTHER TYPES OF
CASES INVOLVING MILITARY DEPLOYMENTS. SUCH AS THE MOVEMENT OF
WARSHIPS INTO OR THROUGH FOREIGN TERRITORIAL WATERS, THE
DEPLOYMENT ABROAD OF SECURITY PERSONNEL SUCH AS MARINE
EMBASSY GUARDS, AND TRANSITS OF COMBAT AIRCRAFT THROUGH
FOREIGN AIRSPACE. HAVE GENERALLY BEEN CONSIDERED TO BE
OUTSIDE THE SCOPE OF THE RESOLUTION. THE RATIONALE FOR
REGARDING THE RESOLUTION INAPPLICABLE IS AT LEAST AS STRONG
IN THE CASE OF LIMITED, ANTI-TERRORIST DEPLOYMENTS AS IT IS
IN THESE OTHER CASES, ABSENT THE INVOLVEMENT OF THE ARMED
FORCES OF A FOREIGN STATE.
EVEN ASSUMING THE RESOLUTION WERE APPLICABLE TO THE
DEPLOYMENT OF SPECIAL ANTI-TERRORIST UNITS, THE FACT IS THAT
CONSULTATIONS MAY NOT -- AND GENERALLY WILL NOT -- BE
POSSIBLE IN SUCH CASES. THE EXISTENCE AND PURPOSE OF THESE
UNITS IS WELL-KNOWN TO THE CONGRESS. THE NEED FOR SWIFTNESS
AND SECRECY INHERENT IN THE NATURE OF THOSE ACTIVITIES IS SO
EXTRAORDINARY THAT CONSULTATIONS PRIOR TO DEPLOYMENT MIGHT
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WELL JEOPARDIZE THE LIVES OF OUR UNITS AND THE HOSTAGES THEY
MAY SEEK TO LIBERATE.
ISSUES UNDER THE WAR POWERS RESOLUTION HAVE ALSO BEEN
RAISED WHERE U.S. FORCES HAVE ENGAGED IN A MILITARY EXERCISE
IN CONFORMITY WITH INTERNATIONAL LAW. THE INCIDENT IN THE
GULF OF SIDRA IN LATE MARCH ILLUSTRATES THE SITUATION. DOES
THE RESOLUTION REQUIRE THE PRESIDENT TO CONSULT AND REPORT IN
THIS KIND OF CASE?
SOME FACTUAL BACKGROUND WILL HELP TO PUT THIS QUESTION
IN PERSPECTIVE. THE UNITED STATES IS COMMITTED TO THE
EXERCISE AND PRESERVATION OF NAVIGATION AND OVERFLIGHT RIGHTS
AND FREEDOMS AROUND THE WORLD. THAT IS THE PURPOSE OF THE
FREEDOM OF NAVIGATION PROGRAM. A DELIBERATE DECISION WAS
MADE DURING THE CARTER ADMINISTRATION TO DISCOURAGE OR NEGATE
UNLAWFUL CLAIMS TO EXTENDED JURISDICTION IN THE OCEANS. THAT
POLICY WAS AFFIRMED IN 1982 UNDER PRESIDENT REAGAN, AND IN
1983 THE ESSENCE OF THE POLICY BECAME PUBLIC IN A STATEMENT
ON U.S. OCEANS POLICY. THAT STATEMENT MADE CLEAR THAT THE
UNITED STATES WOULD CONTINUE TO WORK WITH OTHER COUNTRIES TO
DEVELOP AN ACCEPTABLE OCEANS REGIME. IT ALSO MADE CLEAR THAT
THE UNITED STATES WOULD PROTEST THE UNILATERAL ACTS OF OTHER
STATES DESIGNED TO RESTRICT THE RIGHTS AND FREEDOMS OF THE
INTERNATIONAL COMMUNITY IN THE USE OF THE OCEANS, AND THAT
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THE UNITED STATES WOULD EXERCISE AND ASSERT THOSE RIGHTS AND
FREEDOMS ON A WORLDWIDE BASIS.
THE EXERCISE OF OUR RIGHTS PROVIDES VISIBLE AND POWERFUL
EVIDENCE OF OUR REFUSAL TO ACCEPT UNLAWFUL CLAIMS. THE
UNITED STATES HAS ACCORDINGLY PROTESTED AND EXERCISED RIGHTS
AND FREEDOMS WITH RESPECT TO CLAIMS OF VARIOUS KINDS:
UNRECOGNIZED HISTORIC WATERS CLAIMS, TERRITORIAL SEA CLAIMS
GREATER THAN 12 NAUTICAL MILES, AND TERRITORIAL SEA CLAIMS
THAT IMPOSE IMPERMISSIBLE RESTRICTIONS ON THE INNOCENT
PASSAGE OF ANY TYPE OF VESSELS (SUCH AS REQUIRING PRIOR
NOTIFICATION OR PERMISSION). SINCE THE POLICY WAS
ESTABLISHED THE UNITED STATES HAS EXERCISED ITS RIGHTS
AGAINST THE OBJECTIONABLE CLAIMS OF OVER 35 COUNTRIES,
INCLUDING THE SOVIET UNION. AT A RATE OF ABOUT 30 TO 40
FREEDOM OF NAVIGATION EXERCISES PER YEAR.
THE UNITED STATES HAS FOLLOWED THIS POLICY IN CONNECTION
WITH LIBYA. WHEN OADHAFI CAME TO POWER IN LIBYA. IT WAS NOT
LONG BEFORE PRIVATE FIRMS SAW THEIR INTERESTS EXPROPRIATED.
THEN, ON OCTOBER 9. 1973, OADHAFI BROADENED THE SCOPE OF HIS
INTEREST IN EXPROPRIATING THE RIGHTS OF OTHERS, AND ASSERTED
HIS CLAIM TO OWNERSHIP OF THE GULF OF SIDRA. THE UNITED
STATES VIGOROUSLY PROTESTED THAT ASSERTION ON FEBRUARY It,
19714. AND IN THE YEARS SINCE THEN WE HAVE EXERCISED OUR
RIGHTS IN THAT AREA ON NUMEROUS OCCASIONS.
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THE WAR POWERS RESOLUTION WAS NOT INTENDED TO REQUIRE
CONSULTATION BEFORE CONDUCTING MANEUVERS IN INTERNATIONAL
WATERS OR AIRSPACE IN THE CONTEXT OF THIS GLOBAL FREEDOM OF
NAVIGATION PROGRAM. WE ARE AWARE OF NO PREVIOUS SUGGESTION
THAT THE RESOLUTION WOULD REQUIRE CONSULTATION IN SUCH
SITUATIONS. THIS QUESTION WAS CAREFULLY CONSIDERED IN
CONNECTION WITH THE SIDRA EXERCISE IN MARCH, AND THE DECISION
WAS MADE THAT THE CONDUCT OF THOSE OPERATIONS DID NOT PLACE
U.S. FORCES INTO HOSTILITIES OR INTO A SITUATION IN WHICH
IMMINENT INVOLVEMENT IN HOSTILITIES WAS "CLEARLY INDICATED BY
THE CIRCUMSTANCES." THE UNITED STATES HAS CONDUCTED ITS
EXERCISES NOT ONLY IN SIDRA BUT AROUND THE WORLD, NOT ONLY IN
MARCH BUT FOR YEARS -- AND IN MOST INSTANCES WITHOUT HOSTILE
RESPONSE. WE HAVE IN FACT BEEN IN THE GULF OF SIDRA AREA 16
TIMES SINCE 1981, AND WE HAVE CROSSED OADHAFI'S SO-CALLED
"LINE OF DEATH" 7 TIMES BEFORE THE OPERATION LAST MARCH.
ONLY ONCE BEFORE DID OADHAFI RESPOND WITH MILITARY ACTION,
AND IN THAT INSTANCE HE WAS SINGULARLY UNSUCCESSFUL. WHILE
WE MUST ALWAYS BE AWARE OF THE RISKS AND BE PREPARED TO DEAL
WITH ALL CONTINGENCIES, WE HAVE EVERY RIGHT TO EXPECT THAT
NEITHER LIBYA NOR ANY OTHER COUNTRY WILL TAKE HOSTILE ACTION
AGAINST U.S. FORCES WHILE THEY ARE LAWFULLY IN AND OVER AREAS
OF THE HIGH SEAS. THE THREAT OF A POSSIBLE HOSTILE RESPONSE
IS NOT SUFFICIENT TO TRIGGER THE CONSULTATION REQUIREMENT OF
SECTION 3. WHICH REFERS ONLY TO ACTUAL HOSTILITIES AND TO
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SITUATIONS IN WHICH IMMINENT INVOLVEMENT IN HOSTILITIES IS
"CLEARLY INDICATED" BY THE CIRCUMSTANCES.
WHERE A PEACEFUL, LAWFUL EXERCISE DOES IN FACT RESULT IN
HOSTILE ACTION TO WHICH U.S. FORCES MUST RESPOND IN IMMEDIATE
SELF-DEFENSE, SUCH AN ISOLATED ENGAGEMENT SHOULD NOT NORMALLY
BE CONSTRUED AS CONSTITUTING THE INTRODUCTION OF U.S. ARMED
FORCES INTO A SITUATION OF ACTUAL OR IMMINENT HOSTILITIES FOR
THE PURPOSE OF THE REPORTING REQUIREMENT OF SECTION 4 OF THE
RESOLUTION. NO REPORT WAS SUBMITTED IN THE CASE OF THE 1981
SIDRA INCIDENT, IN WHICH TWO LIBYAN AIRCRAFT WERE SHOT DOWN
AFTER THEY FIRED AT U.S. AIRCRAFT. SIMILARLY, DURING THE
PERIOD IN WHICH U.S. PEACEKEEPING FORCES WERE DEPLOYED IN THE
BEIRUT AREA IN 1983, MANY INCIDENTS OCCURRED IN WHICH HOSTILE
FORCES ATTACKED AND U.S. PEACEKEEPING FORCES RESPONDED IN
IMMEDIATE SELF-DEFENSE. YET, NO SEPARATE WAR POWERS REPORT
WAS SUBMITTED FOR EACH OF THESE INCIDENTS. OF COURSE, A
DIFFERENT SITUATION MIGHT BE PRESENTED IF U.S. FORCES
WITHDREW FROM AN AREA AND SUBSEQUENTLY RETURNED FOR THE
PURPOSE OF UNDERTAKING FURTHER MILITARY ACTION.
AS A PRACTICAL MATTER, HOWEVER. THIS QUESTION SEEMS
ACADEMIC. IN THE CASE OF THE MARCH INCIDENT IN THE GULF OF
SIDRA, FOR EXAMPLE, REGARDLESS OF THE APPLICABILITY OF THE
WAR POWERS RESOLUTION, THE ADMINISTRATION PROVIDED CONGRESS
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WITH ALL THE INFORMATION IT NEEDED TO REVIEW THE INCIDENT.
As SOON AS HOSTILE LIBYAN ACTIONS OCCURRED, THE
ADMINISTRATION TOOK STEPS TO ENSURE THAT CONGRESS WAS
INFORMED OF THE SITUATION AND WAS KEPT INFORMED THROUGHOUT
THE REMAINDER OF THE EXERCISE. IN PARTICULAR, SEVERAL CALLS
WERE MADE TO CONGRESSIONAL LEADERS TO INFORM THEM OF THE
EVENTS; EXTENSIVE BRIEFINGS WERE CONDUCTED FOR THE BENEFIT OF
ALL INTERESTED MEMBERS. AT WHICH EXPERTS FROM THE DEPARTMENTS
OF STATE AND DEFENSE PROVIDED PERTINENT INFORMATION AND
RESPONDED TO ALL QUESTIONS ASKED BY MEMBERS; AND THE
PRESIDENT SENT A WRITTEN REPORT TO CONGRESS DESCRIBING THE
EVENTS OF MARCH 24 AND 25, THE ACTIONS TAKEN BY U.S. FORCES,
AND THE LEGAL JUSTIFICATION FOR THOSE ACTIONS.
THE THIRD KIND OF SITUATION IN WHICH WAR POWERS
CONSIDERATIONS HAVE BEEN RAISED RECENTLY IS THAT IN WHICH
U.S. FORCES TAKE LEGITIMATE ACTION IN SELF-DEFENSE AGAINST
FACILITIES OR FORCES OF ANOTHER STATE BECAUSE OF ITS
SPONSORSHIP OF TERRORIST ATTACKS AGAINST AMERICANS. IN THE
APRIL 14 OPERATION AGAINST LIBYA. U.S. FORCES UNDERTOOK
MILITARY ACTION IN SELF-DEFENSE AGAINST FIVE
TERRORIST-RELATED TARGETS IN ORDER TO PREEMPT AND DETER
LIBYA'S UNLAWFUL AGGRESSION THROUGH TERRORIST FORCE AGAINST
THE UNITED STATES AND ITS NATIONALS. DOES THE WAR POWERS
RESOLUTION APPLY TO A CASE OF THIS KIND?
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THE USE OF U.S. FORCES TO CONDUCT A MILITARY STRIKE
AGAINST THE FACILITIES OF A HOSTILE, SOVEREIGN STATE IN ITS
OWN TERRITORY FALLS WITHIN THE SPECIFIC TERMS OF THE
CONSULTATION REQUIREMENT OF SECTION 3 OF THE RESOLUTION. IN
THIS CONTEXT, HOWEVER, A CRITICAL ELEMENT IS FLEXIBILITY. AS
INDICATED EARLIER. SECTION 3 EXPRESSLY ENVISIONS THE
POSSIBILITY THAT IN SOME INSTANCES THE PRESIDENT MIGHT HAVE
TO ACT WITHOUT PRIOR CONSULTATIONS. IN ANY EVENT. HE MUST
SEEK TO CONSULT IN A MANNER APPROPRIATE TO THE CIRCUMSTANCES,
AND THE NEED FOR SWIFTNESS AND SECRECY IN CARRYING OUT A
MILITARY OPERATION IS A VITAL FACTOR TO BE WEIGHED IN
DETERMINING THE NATURE AND TIMING OF CONSULTATIONS THAT MAY
BE APPROPRIATE IN A GIVEN SITUATION.
IN THE CASE OF THE APRIL 14 OPERATION, EXTENSIVE
CONSULTATIONS OCCURRED WITH CONGRESSIONAL LEADERS. THEY WERE
ADVISED OF THE PRESIDENT'S INTENTION AFTER THE OPERATIONAL
DEPLOYMENTS HAD COMMENCED, BUT HOURS BEFORE MILITARY ACTION
OCCURRED. THIS SATISFIED THE RESOLUTION'S REQUIREMENT THAT
CONSULTATION OCCUR "BEFORE" THE "INTRODUCTION" OF TROOPS INTO
HOSTILITIES OR A SITUATION OF IMMINENT HOSTILITIES.
CONGRESSIONAL LEADERS HAD AMPLE OPPORTUNITY TO CONVEY THEIR
VIEWS TO THE PRESIDENT BEFORE ANY IRREVOCABLE ACTIONS WERE
TAKEN (IN FACT, NO ONE WHO WAS CONSULTED OBJECTED TO THE
ACTIONS UNDERTAKEN). THE PRESIDENT TOOK A SERIOUS RISK IN
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CONDUCTING THESE CONSULTATIONS. THE PRESS OBSERVED
LEGISLATIVE LEADERS ENTERING THE WHITE HOUSE FOR THE
CONSULTATIONS, AND SPECULATION ABOUT POSSIBLE MILITARY ACTION
ENSUED. THE PRESS ALSO LEARNED IMMEDIATELY AFTER THE
CONSULTATIONS THAT THE PRESIDENT WAS TO MAKE AN ADDRESS LATER
THAT EVENING. AND THIS LED TO RUMORS OF IMMINENT MILITARY
ACTION THAT COULD HAVE JEOPARDIZED THE SUCCESS OF THE
OPERATION.
THE CONSULTATIONS IN THIS CASE WERE CONSISTENT WITH THE
PROVISIONS OF THE WAR POWERS RESOLUTION. THEY WERE ALSO
CONSISTENT WITH AND IN MANY RESPECTS EXCEEDED IN SCOPE AND
DEPTH THE CONSULTATIONS CONDUCTED ON PREVIOUS OCCASIONS. FOR
EXAMPLE, PRESIDENT FORD'S MEETING WITH CONGRESSIONAL LEADERS
TO DISCUSS THE MAYAGUEZ OPERATION OCCURRED AT A POINT IN TIME
MUCH CLOSER TO THE ONSET OF MILITARY ACTION THAN WAS THE CASE
HERE. PRESIDENT CARTER. AS I NOTED EARLIER, DID NOT CONSULT
AT ALL PRIOR TO THE TEHRAN RESCUE MISSION.
WHERE A MILITARY ACTION CONSTITUTES THE INTRODUCTION OF
U.S. FORCES INTO ACTUAL OR IMMINENT HOSTILITIES FOR THE
PURPOSE OF THE CONSULTATION REQUIREMENT OF SECTION 3 OF THE
RESOLUTION. THE ACTION ALSO TRIGGERS THE REPORTING
REQUIREMENT OF SECTION 4. IN THE CASE OF THE APRIL 14
OPERATION, THE PRESIDENT SUBMITTED A FULL REPORT CONSISTENT
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WITH THE WAR POWERS RESOLUTION. AS THE PRESIDENT NOTED IN
HIS REPORT. THE ACTIONS TAKEN WERE PURSUANT TO HIS AUTHORITY
UNDER THE CONSTITUTION. INCLUDING HIS AUTHORITY AS COMMANDER
IN CHIEF. THAT AUTHORITY IS MOST COMPELLING IN A SITUATION
SUCH AS THIS. WHERE THE USE OF FORCE IS ESSENTIAL TO DETER AN
IMMEDIATE AND SUBSTANTIAL THREAT TO THE LIVES OF AMERICANS.
IN RECENT WEEKS THE QUESTION HAS BEEN RAISED PUBLICLY AS
TO THE PRESIDENT'S RIGHT TO TAKE MILITARY ACTION WITHOUT THE
EXPRESS APPROVAL OF CONGRESS. THIS IS A QUESTION THAT HAS
BEEN ADDRESSED BY EXECUTIVE BRANCH OFFICIALS ON MANY
OCCASIONS OVER THE YEARS, AND THEIR STATEMENTS ARE WELL-KNOWN
TO THIS COMMITTEE. WITHOUT GOING INTO THE SPECIFICS OF THOSE
STATEMENTS. IT IS CLEAR THAT THE LIMITED ACTIONS UNDERTAKEN
BY PRESIDENT REAGAN IN RESPONSE TO ATTACKS ON THE UNITED
STATES AND ITS CITIZENS FALL WELL WITHIN THE PRESIDENT'S
AUTHORITY UNDER THE CONSTITUTION. AS NOTED EARLIER. THE WAR
POWERS RESOLUTION DOES NOT CONFER POWER ON THE PRESIDENT, BUT
IT CLEARLY RECOGNIZES THAT THE PRESIDENT HAS INDEPENDENT
CONSTITUTIONAL AUTHORITY TO TAKE APPROPRIATE MILITARY
ACTION.
IT IS ALSO IMPORTANT TO NOTE, IN THIS REGARD, THAT THE
PRESIDENT IS NOT SIMPLY ACTING ALONE, UNDER HIS INHERENT
CONSTITUTIONAL AUTHORITY, WHEN TAKING THE TYPES OF ACTIONS WE
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ARE DISCUSSING TODAY. THE CONGRESS HAS. OVER THE YEARS.
LEARNED OF, CONSIDERED. AND EFFECTIVELY ENDORSED IN PRINCIPLE
THE USE OF U.S. FORCES FOR A VARIETY OF PURPOSES THROUGH ITS
ADOPTION OF LAWS AND OTHER ACTIONS. MOST SIGNIFICANTLY,
CONGRESS HAS AUTHORIZED AND APPROPRIATED MONEY FOR THE
CREATION OF FORCES SPECIFICALLY DESIGNED FOR ANTI-TERRORIST
TASKS. FOR EXAMPLE, SECTION 1453 OF THE 1986 DEPARTMENT OF
DEFENSE AUTHORIZATION ACT SPECIFICALLY STATES THAT IT IS THE
DUTY OF THE GOVERNMENT TO SAFEGUARD THE SAFETY AND SECURITY
OF U.S. CITIZENS AGAINST A RAPIDLY INCREASING TERRORIST
THREAT, AND THAT U.S. SPECIAL OPERATIONS FORCES PROVIDE THE
IMMEDIATE AND PRIMARY CAPABILITY TO RESPOND TO SUCH
TERRORISM; AND THE CONGRESS HAS APPROPRIATED FUNDS FOR THE
SPECIFIC PURPOSE OF IMPROVING U.S. CAPABILITIES TO CARRY OUT
SUCH OPERATIONS. LIKEWISE, THE CONGRESS HAS APPROPRIATED
CONSIDERABLE SUMS TO CREATE THE NAVAL AND AIR FORCES THAT ARE
NEEDED TO RESPOND TO AND DETER STATE-SPONSORED TERRORIST
ATTACKS IN THE MANNER THAT WAS DONE ON APRIL 14. AND TO CARRY
OUT THE EXERCISES NECESSARY TO MAINTAIN SUCH CAPABILITIES AND
TO ASSERT AND PROTECT OUR RIGHTS ON THE HIGH SEAS. IN THIS
SENSE. CONGRESS HAS PARTICIPATED IN THE CREATION AND
MAINTENANCE OF THE FORCES WHOSE FUNCTION, AT LEAST IN PART,
IS TO DEFEND AMERICANS FROM TERRORISM THROUGH THE MEASURED
USE OF FORCE. THE PRESIDENT HAS OPENLY DISCUSSED AND
EXPLAINED THE NEED FOR AND PROPRIETY OF THESE USES OF FORCE.
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WHICH HE HAS CORRECTLY ASSUMED ARE WIDELY SUPPORTED BY
CONGRESS AND THE AMERICAN PEOPLE. ALL OF THE ACTIONS
UNDERTAKEN WERE CLEARLY SIGNALLED WELL IN ADVANCE, AND
THEREFORE POSED NO THREAT TO THE ROLE OF CONGRESS UNDER THE
CONSTITUTION IN MILITARY AND FOREIGN AFFAIRS.
CONCLUSION
IT SEEMS FAIR TO SAY. IN CONCLUSION. THAT IT IS NOT
CLEAR HOW THE WAR POWERS RESOLUTION, WHICH WAS ORIGINALLY
DESIGNED TO PROVIDE AN APPROPRIATE ROLE FOR THE CONGRESS WITH
RESPECT TO U.S. INVOLVEMENT IN HOSTILITIES WITH OTHER STATES,
SHOULD APPLY TO THE USE OF U.S. FORCES IN OTHER KINDS OF
SITUATIONS. SOME SUCH SITUATIONS -- THE DEPLOYMENT OF
ANTI-TERRORIST UNITS -- WOULD SEEM TO FALL COMPLETELY OUTSIDE
THE SCOPE OF THE RESOLUTION. OTHER SITUATIONS -- THE CONDUCT
OF PEACEFUL. LAWFUL EXERCISES WHICH RESULT IN A HOSTILE
RESPONSE -- DO NOT REQUIRE CONSULTATIONS BUT, SOME MIGHT
ARGUE, MAY IN SPECIAL SITUATIONS REQUIRE A REPORT. STILL
OTHER CASES -- THE USE OF U.S. FORCES IN A LEGITIMATE,
DEFENSIVE STRIKE AGAINST ANOTHER STATE -- CAN CLEARLY BE SAID
TO FALL WITHIN BOTH THE CONSULTATION AND THE REPORTING
PROVISIONS, BUT WITH THE FORM OF CONSULTATION NECESSARILY
VARYING WITH THE PARTICULAR CIRCUMSTANCES.
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A CONSIDERATION OF THE APPLICATION OF THE WAR POWERS
RESOLUTION TO SITUATIONS SUCH AS THESE DOES MORE THAN RAISE
DIFFICULT AND INEVITABLY CONTROVERSIAL ISSUES OF
INTERPRETATION. ON A BROADER LEVEL, IT ALSO HIGHLIGHTS SOME
OF THE SIGNIFICANT NEGATIVE ASPECTS OF THE WAR POWERS
RESOLUTION, WHOSE EFFECTS ON THE CONGRESS ARE PERHAPS EVEN
MORE PROFOUND THAN ON THE EXECUTIVE. THE NEED THAT SOME
MEMBERS OF CONGRESS FEEL TO DEFEND THE RESOLUTION'S
VIABILITY, EVEN IN SITUATIONS WELL BEYOND THOSE CONTEMPLATED
AT THE TIME OF ITS ADOPTION, CAUSES CONGRESS TO SHIFT ITS
CONCERN, DELIBERATIONS, AND POLITICAL LEVERAGE AWAY FROM
EVALUATING THE MERITS OF MILITARY ACTIONS TO TESTING THEIR
LEGALITY, AND TO FOCUS ON FORMAL AND INSTITUTIONAL ISSUES
RATHER THAN ON THE SUBSTANCE OF OUR POLICIES. OUR HISTORY
AMPLY DEMONSTRATES THAT CONGRESS HAS ADEQUATE MEANS, THROUGH
THE BUDGETARY PROCESS AND OTHERWISE. TO PROVIDE AN EFFECTIVE
CHECK ON PRESIDENTIAL POWER TO EMPLOY MILITARY FORCE. BUT
THE WAR POWERS RESOLUTION OFTEN UNWISELY DIVERTS OUR LEADERS
FROM ISSUES OF POLICY TO ISSUES OF LAW.
I WILL BE HAPPY TO RESPOND TO QUESTIONS FROM YOU AND
OTHER MEMBERS OF THIS SUBCOMMITTEE.
THANK YOU.
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