Letter to Speaker Hastert on War Powers and Kosovo

Hon. Dennis Hastert
Speaker, U.S. House of Representatives
Room H-232, U.S. Capitol Building
Washington, D.C. 20515

Dear Speaker Hastert:

We are writing to urge that you insist on strict compliance with the Constitution in connection with the commitment of U.S. troops in Kosovo, Yugoslavia and surrounding areas. The possible commitment of U.S. ground troops requires prior congressional authorization under the U.S. Constitution and the War Powers Resolution. In fact, such authorization is also required for any air and missile strikes by U.S. forces in connection with any air war in Yugoslavia. Mere consultation with members of Congress 1, while a step in the right direction, does not meet the constitutional requirement that congressional authorization precede U.S. military intervention.

According to reports, the Clinton Administration is considering committing U.S. ground forces to the conflict in Yugoslavia. It has already sent into the region dozens of U.S. attack helicopters supported by thousands of troops, and has authorized the calling to active duty of over 33,000 reservists. The ACLU takes no position as to whether such troops should be sent, or whether or not force should be used by the United States in Yugoslavia or in other conflicts.

However, the Constitution clearly requires prior congressional authorization, and this authorization is required regardless of whether military action is supported by the NATO alliance or sanctioned by the United Nations 2, and regardless of whether the force is used in offensive operations, or in connection with humanitarian relief. Article I, Section 8, Clause 11 of the Constitution grants to Congress “the power to declare war [and] grant letters or marque and reprisal.” 3 Congress is given the ultimate decision as to whether to use force; the President’s power is limited to decisions on how to use the military after Congress has authorized the President to act. This applies to all situations in which U.S. uses its military forces against another country, except in situations involving attacks on U.S. territory, U.S. forces, or U.S. persons, where the President may act without prior congressional authorization. 4

Congress itself interpreted the Constitution in precisely this fashion when it passed the War Powers Resolution of 1973, codified at 50 U.S.C. Section 1541 et seq. Section 1541(c) unequivocally states that the President has constitutional authority to “introduce United States Armed Forces into hostilities, or into situations where imminent hostilities is clearly indicated by the circumstances, … only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States. …” This provision serves as a statutory definition of the constitutional war powers. 5

Public debate and a congressional vote are critically needed in this complicated and tragic situation. Debate helps to ensure that a full array of viewpoints on the issue are considered, both from within and outside of the government. A vote ensures that these important decisions have the endorsement of the Congress, and derivatively the people, at the earliest possible date. A debate and vote are especially important here, where many members of Congress have already expressed grave reservations about the wisdom of the air war currently underway, and about putting U.S. ground troops “in harms’ way” in Yugoslavia. No congressional resolution merely expressing support for the U.S. troops committed to battle can substitute for true congressional authorization.

Then Secretary of State Christopher echoed this view when he wrote in 1982 about the need for prior congressional approval in war powers matters: “[A] government makes no more fateful decision than the decision to go to war. The President should want to share that decision with the Congress. When the President and the Congress stand together, the nation’s commitment is clear. 6

The House is scheduled to consider two resolutions introduced by Rep. Tom Campbell (R-CA) pursuant to his prerogatives under the War Powers Resolution. H. Con. Res. 82 directs the President to remove U.S. forces from their positions around Yugoslavia. H.J. Res. 44 is a declaration of war against Yugoslavia. We support the efforts of Rep. Campbell to secure the Congressional authority to determine whether the United States goes to war against Yugoslavia. However, we take no position as to whether the United States should go to war or withdraw its troops. We urge you to consider that a congressional declaration of war may automatically vest in the President substantial powers to curtail civil liberties. This includes the power to detain and deport Yugoslavs in the United States as well as any non-citizens born in Serbia, Montenegro and Kosovo, and to conduct certain wiretapping without a prior court order. Both of the resolutions were reported unfavorably by the International Relations Committee, and are expected to fail.

The House is also expected to consider S. Con. Res. 21, which was passed by the Senate on March 23. It purports to authorize the United States to conduct military air operations and missile strikes against Yugoslavia. However, because it is not a joint resolution (which carries the force of law and requires the President’s signature), House passage of the resolution apparently would not satisfy the requirements of the War Powers Act even with respect to the air war. 7 The House is also expected to consider H.R. 1659, which would withhold funding for ground troops in Yugoslavia in the absence of express congressional authorization, with an exception for rescue operations. This legislation would likewise fail to satisfy the War Powers Resolution.

It is essential that congressional authorization be granted before more troops are committed. Our democratic system requires that no one person — including the President — be vested with the power to commit U.S troops to a sustained military action.

Sincerely,

Laura W. Murphy
Director

Gregory T. Nojeim
Legislative Counsel

Endnotes:

1 President Clinton is meeting today with certain members of Congress to discuss the air war in Yugoslavia.

2 Article 43 of the U.N. Charter provides that member nations shall make available to the Security Council armed forces and other assistance “in accordance with a special agreement or agreements” which shall be ratified by each nation “in accordance with their respective constitutional processes.” Section 6 of the U.N. Participation Act of 1945 provides that except in very limited circumstances, any such “special agreement” is subject to congressional approval. United Nations Participation Act, Pub. L. No. 79-264, 59 Stat. 621, Section 6 (1945), codified at 22 U.S.C. Section 287d. The legislative history of the Act makes it clear that a president could not commit armed forces to the United Nations without congressional approval. Senate Foreign Relations Committee, S. Rep. No. 717, 79th Cong., 1st Sess., at 8 (1945) (“all were agreed on the basic proposition that the military agreements could not be entered into solely by executive action.”) See also, Hearings on (testimony of Under Secretary of Participation by the United States in the United Nations Organization before the House Committee on Foreign Affairs, 79th Cong., 1st Sess. 23-26 (1945) State Dean Acheson).

3 Letters or mark or reprisal were granted to authorize seizure of property and people by a party in one state who was wronged by injury caused by the subjects of another state, when the other state has denied justice to the wronged party.

4 Alexander Hamilton once noted that “anything beyond [repelling force with force — i.e., self-defense] must fall under the idea of reprisals and requires the sanction of that Department which is to declare or make war.”

5 The use of force in Yugoslavia, including NATO actions, also falls within Section 4(a)(1) of the War Powers Resolution, 50 U.S.C. Section 1543(a)(1) (situations involving “hostilities or … where imminent involvement in hostilities is clearly indicated by the circumstances”) necessitating a presidential report (which we understand has been made) and triggering the 60-day time clock. However, we believe that this law is constitutionally suspect in this regard by not prohibiting the President from using force for the first 60 days without congressional authorization. Accordingly, as occurred with respect to determination to use force against Iraq, Congress should address this matter directly under the Constitution.

6 Warren Christopher, “Ceasefire Between the Branches: A Compact in Foreign Affairs,” Foreign Affairs, Vol. 60, No. 5, 899, 1002 (Summer 1982). While Christopher also said that “steps short of war ought to require less collaboration and permit more Executive discretion,” he was referring to military aid, not use of force. Id., at 1003.

7 50 U.S.C. Section 1544(b) provides that the President shall terminate use of U.S. armed forces unless congress has “enacted a specific authorization for such use” or has extended the deadline for such action or is physically unable to meet on account of an armed attack on the U.S. Section 1545(a). Section 1545 appears to contemplate that action taken under Section 1544(b) would by joint resolution or a bill. Congress authorized operation “Desert Storm” in Iraq by means of a joint resolution.