My wonderful Presidential War Powers course mostly consisted of reading and discussion — don’t you love seminars? I did write one paper of note, though. It explores actions by Presidents George HW Bush and Bill Clinton in Yugoslavia during their civil/ethnic wars.

Yugoslavia in 1992

Created as a nation in the aftermath of World War I as a buffer between Austria and Germany, Yugoslavians from different parts of the country had little common history and were ethnically diverse – Serbs, Croats, and Slovenes all had their own culture and little liking for each other. Serbians quickly came to dominate the government, and the Croats had declared independence by 1941. Their movement was interrupted by the chaos of World War II, however, and by the time the war ended Josep Broz Tito had become leader of the Communist party (and thus the government) and succeeded in quelling ethnic movements by writing a new constitution that left far more power to the provincial and local levels than the original constitution had. Tito’s government worked to unite ethnicities and was by far the most liberal communist government in the world; the government practiced religious tolerance, was expelled from the Cominform, and was a founding member of the Non-Aligned Movement. (Hendrickson 2002, 68-69)

When Tito died in 1980, Yugoslavia’s government changed dramatically. It became more an association of semi-independent republics – Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia – and each held the presidency in turn. When Slobodan Milosevic came to power, he angered non-Serbs by promoting Serbian nationalism and trying to consolidate power in each of the republics. The country began to split, and by June 1991 both Croatia and Slovenia had declared independence. Fighting ensued, and the UN Security Council imposed an arms embargo on all of former Yugoslavia. US President George H.W. Bush complied and enforced further economic sanctions. As events unfolded and Serbia’s policy of ethnic cleansing became apparent, US support for Bosnia-Herzegovina, Croatia, and Kosovo grew. President Bush supplied money for refugee assistance, froze Serbian and Montenegrin accounts while strengthening the sanctions against them, and opened US trade up to the other descendent nations of Yugoslavia. The Senate and House voted on a number of measures encouraging stronger intervention, including the use of force if necessary to deliver humanitarian aid. The United Nations (with US backing, though not troops) established the UN Protection Force (UNPROFOR) to assist in delivering humanitarian aid. (Hendrickson 2002, 69-73)

 President Bill Clinton’s Actions in Yugoslavia

President Clinton’s initial policy towards Yugoslavia varied little from President Bush’s, but quickly became more direct. During his campaign Clinton stated that he would commit 25,000 US troops to a peacekeeping force if a peace treaty was signed. While he continued mentioning this promise from time to time, the Clinton administration’s first action was to authorize humanitarian airdrops in an order specifically excluding combat aircraft (Public Papers 1993, 206). Clinton also contributed US combat aircraft to NATO to help enforce the UN’s no-fly zone over Yugoslavia later that year. He reported these efforts to Congress “consistent with Section 4 of the War Powers Resolution” and laid out the justification of the flights under international law (Public Papers 1993, 429). In terms of domestic and Constitutional law, his only nod was to report the flights – but he claimed that actual combat was unexpected, thereby perhaps removing the need for him to consult with Congress. The first ground troop commitment was ~350 troops for the UN’s peacekeeping force along the Macedonian border, in keeping with Security Council Resolution 842 of June 1993. Clinton deployed these troops on the basis of Chapter 7 of the UN Charter (Public Papers 1993, 1045), ignoring the UN Participation Act completely.

In 1994 Clinton became far more assertive in his willingness to use force without Congressional approval. US planes operating under NATO participated in 5 separate bombings against Serbian military installations. He made his legal claim to these orders “pursuant to [his] constitutional authority to conduct U.S. foreign relations and as Commander in Chief.” He increased the number of troops deployed to Macedonia and repeated his claim of it being Constitutional without offering any serious defense. (Hendrickson 2002, 75-76)

In 1995, despite the newly Republican Congress and some (spectacularly) failed attempts to limit the President’s war powers, Clinton continued bombing targets without Congressional permission and in fact stopped notifying Congress when they occurred. He moved 3500 US troops nearer to Yugoslavia (but kept them at sea), and after Serbian troops overran a “safe enclave” and shot down an American fighter pilot, he (through NATO) responded by dramatically increasing the number of bombings – from the 1 or 2 at a time as in the past, to over 3000 starting in August. This provoked a response from the House in the form of a non-binding resolution warning the President he could not send troops abroad without Congressional consent. The President replied by promising to consult with Congress prior to deploying the 25,000 peacekeepers he had promised. His administration reiterated this position, yet after the Dayton Peace Accords were completed he began sending Congress notifications of troop movements without asking for permission. First 1500 troops were sent to “lay the groundwork,” supposedly made legal by NATO and the president’s Constitutional war powers. 15 days later, Clinton moved the remainder of the 25,000 peacekeeping troops to Yugoslavia, and again sent Congress a letter saying that the deployment was allowed under his Constitutional authority and the Security Council’s approval. (Hendrickson 2002, 85-87)

Examination of Clinton’s Justifications

Throughout his actions in Yugoslavia, Clinton consistently relied on the Constitution’s Commander-in-Chief clause and on the authority of NATO and the United Nations to justify his actions. Never did he do anything to indicate that Congress had any say in his deployment decisions. Can his interpretation be correct?

The War Powers Resolution

In most of the letters he sent to Congress, Clinton claimed that he was doing so “consistent with the War Powers Resolution,” and so he has acknowledged that the law intends to apply to his actions (at least in part). However, an examination of the War Powers Resolution shows that Clinton in fact was completely inconsistent with that law. Section 4 of the War Powers Resolution (which seems to be what Clinton is referring to when he says “consistent with the War Powers Resolution”, as it (roughly) requires reports from the President at any time when he sends combat forces into a foreign nation) is immediately preceded by Section 3, which states that “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.” While the meaning of “consult” is unclear, the President’s summary notifications – even his overtures in late 1995 ended in summary notification (Hendrickon 2002, 87) – surely do not count as consultation, and given the timelines involved it is hard to argue that consultation was not possible.

Every situation where Clinton moved military units into the former Yugoslavia, he moved troops “equipped for combat” into the “territory, airspace, or waters of a foreign nation” and “substantially enlarge[d the] United States Armed Forces equipped for combat in [the] foreign nation,” putting these troop movements squarely under the purview of the War Powers Resolution, Section 4, requiring a report. Section 5 of the War Powers Resolution requires that once the President has put troops into a situation requiring a report, he remove those troops within 60-90 days unless Congress has declared war, provided statutory authorization for his use of force, or is physically unable to meet because of attack upon the United States. 2 years is a far longer time than 60 days and at no point did Congress vote to give the President authority for his peacekeeping or air forces to remain in Yugoslavia. Under the War Powers Resolution it is clear: Clinton did not have the authority to do as he did. So either Clinton’s authority was illegitimate or the War Powers resolution itself is.

The United Nations and the North Atlantic Treaty Organization

Clinton also made a great deal of the fact that his operations were conducted under the auspices of the United Nations, and past and future presidents have also appealed to its authority for military operations. He also appealed to NATO. Does a blessing from international organizations give the President constitutional authority that he does not have on his own?

In a word, no. The Constitution declares itself to be the highest law of the land, and no treaty – negotiated by the president and authorized by the Senate – may change the executive’s constitutional powers or strip the House of its own. Laws regarding these institutions, however, may grant additional executive power. The United Nations Participation Act does discuss war powers and troop movements with the UN’s blessing: The president is required to gain Congressional authorization for any “special agreements” he makes with the Security Council under Article 43 of the UN Charter, but “shall not be deemed to require the authorization of the Congress” for actions under Article 42 of the UN Charter. This seems to imply that actions under Article 42 can be conducted without Congressional approval, but readings by scholars of the law and of the UN Charter itself seem to agree that actions under Article 42 of the Charter require agreements from Section 43 (Glennon 1991; Fisher 1995). Because there was no special agreement (agreed upon by Congress) in place between the UN and the United States, the United Nations cannot provide the president any additional constitutional or statutory authority. NATO’s charter in fact does not provide for any use of NATO forces or the organization for non-defensive military efforts, and there is no law providing the president additional authority even if given NATO’s blessing.

The Constitution of the United States

The President’s Constitutional War Powers

The Constitution, as the “supreme Law of the Land,” is the final authority on the president’s war-making powers. The war powers granted under it are focused on three key points: The president is given authority as commander in chief and vested with the executive authority, while Congress is granted authority to declare war. The meaning of these different statements is so confusing that in the only record of debate we have on them the delegates to the Constitutional Convention seem to have interpreted them differently (Madison), and the Helvidius/Pacificus debates illustrate just how quickly opinion diverged among the Framers themselves.

Nonetheless, certain things are clear from comments at the time of the Framers. Congress should not have the power to “make” war because “its proceedings were too slow.” They thought it should “be more easy to get out of war than into it.” Many thought the president should “be able to repel and not to commence war.” Under this construction, Clinton clearly did not have authority to war upon the former Yugoslavia without congressional approval. But was it war? Did he, in fact, have approval? And is such a strict reading the correct one?

The Meaning of War

In the Prize Cases 67 US 635, the opinion of the court defined war as “that state in which a nation prosecutes its rights by force.” Under this definition, a plausible case can be made that President Clinton’s actions in the former Yugoslavia were not in fact war – in fact, that peacekeeping operations at least are never war. If there is not a substantial material benefit to its citizens, can a nation be prosecuting or promoting its own rights?

Moreover, the Constitution was written at a time when the idea of humanitarian interventions did not exist and the nation was expected to be isolationist in everything but trade (witness, for instance, Washington’s Farewell Address). Strong limits to the executive’s military powers make sense when any use of force is expected to seriously impede trade (as in the limited naval war with France) or throw the country into a fight for its life (the War of 1812); they make less sense when a nation routinely has troops in dozens of countries throughout the world and a military capability that compares favorably with that of the entire rest of the world.

While the Constitution delegates to Congress the power to “declare war,” there is a powerful argument to be made that the clause does not cover modern peacekeeping operations – that these are in fact literally extra-constitutional. In such a situation, would it not make sense to make the common practice the constitutional one? As Richard Posner argues, for the Constitution to “remain serviceable more than two centuries after it was written,” it must be interpreted loosely. Under this understanding, the determination of constitutionality would be a pragmatic one – and given the extreme shift in war powers that would result from a negative decision, and because Congress has been proven spectacularly inadequate at either discouraging or enabling military operations, the Supreme Court today would surely find that President Clinton’s actions in Yugoslavia were constitutional.

Unauthorized Presidential Military Actions

Presidents have engaged in military activities without congressional approval since at least Thomas Jefferson (Boot 2003, 12) and rarely been challenged. The United States courts began to recognize executive military prerogatives as early as 1860, saying in Durand v. Hollins 8 F. Cas. 111 (Circuit Court, S.D. New York 1860):

As the executive head of the nation, the president is made the only legitimate organ of the general government, to open and carry on correspondence or negotiations with foreign nations, in matters concerning the interests of the country or of its citizens. It is to him, also, the citizens abroad must look for protection of person and property, and for the faithful execution of the laws existing and intended for their protection. For this purpose, the whole executive power of the country is placed in his hands, under the constitution, and the laws passed in pursuance thereof; and different departments of government have been organized, through which this power may be most conveniently executed, whether by negotiation or force – a department of state and a department of the navy.

The case in question concerned a US navy vessel which had bombarded a Nicaraguan village during a dispute between the village’s Nicaraguan inhabitants and US citizens. In U.S. v. Curtiss-Wright Corp 299 U.S. 304, the Supreme Court declared that unopposed legislative history “goes a long way… [towards proving] the constitutionality of the practice.” While presidential war powers do not have quite the unblemished history that the bills under discussion in that case did, surely the executive is entitled to the same standards as the legislature. After two hundred years of executive-initiated military actions (opposed in law solely by the War Powers Revolution – so over-reaching a bill that part of it has already been declared unconstitutional), might it not be correct to acknowledge constitutionally the president’s practical authority to use troops in international diplomacy as he sees fit?

Congressional Approval

The Supreme Court has clearly indicated that the United States government has the power to participate in military engagements without a formal declaration of war. Given that the president is the exclusive Commander-in-Chief of the United States’ Armed Forces, he must also have the exclusive power to prepare and direct these military engagements. At what point, then, does Congress’s constitutional power to declare war (apparently intended to imply more oversight than simply preventing the president from declaring a total war, given the references to repelling sudden attacks in most debates at the time) come in to play at this time? Must Congress vote every time the executive initiates an action? Durand v. Hollins would imply otherwise. I suggest that whenever Congress appropriates money for an action, it constitutes consent. Some scholars claim that this is an insufficient check (Miksha 2003), and it is clearly disavowed by the War Powers Resolution as consent under that law, but it makes good constitutional sense: the power of the purse is explicit in the Constitution (unlike nearly all the war powers) and no war can be fought without money. Moreover, it allows the executive’s oversight prerogative to grow in relation to the size of the function – as the military becomes larger, the set of unusual, difficult-to-legislate circumstances increases proportionally.

The War Powers Resolution

The War Powers Resolution purports to “fulfill the intent of 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” and claims “Nothing in this resolution is intended to alter the constitutional authority of the Congress or of the President.” It was enacted during the end of President Nixon’s time in office as an attempt to reassert Congressional war powers and prevent another Vietnam, but portions of it have already been declared unconstitutional. Does it remain valid?

The War Powers Resolution is either inconsistent or unconstitutional: because it claims not to modify constitutional authority, yet enumerates circumstances in which the president may implement military actions and introduces requirements upon the president when he has done so, it is inconsistent. But you cannot have it both ways: either the president is empowered by the Constitution to introduce troops into hostilities without congressional consent, or he is not. If he is, a 60 day time limit for these hostilities is patently absurd as a constitutional requirement and is unconstitutional; if he is not empowered to introduce troops into hostilities, then the War Powers Resolution expands presidential authority. Moreover, because the Supreme Court has already struck down legislative vetoes as unconstitutional in Immigration and Naturalization Service v. Chadha (462 U.S. 919), it is impossible to imagine that the 60-day time limit, which does not even require a vote by Congress, can be constitutional. The War Powers Resolution does contain a clause determining that, even if part of the Resolution is declared unconstitutional, the rest of it remains in force; nonetheless, without the 60-day time limit the War Powers Resolution’s only effect is to require the executive to submit reports of unauthorized military actions to Congress.

I therefore conclude that the War Powers Resolution is unconstitutional.

Conclusion

President Clinton’s sole certain source of authority for his actions in the former Yugoslavia was based in his constitutional powers as Commander in Chief. Legal opinions on whether this is sufficient authority differ, but there is a strong case to be made that, even if it is not constitutional, it should be so. Any case before the Supreme Court will almost certainly affirm that the president’s powers do extend this far. Moreover, there is a less certain argument that the President was granted additional military authority by Congress continued funding of military operations in Yugoslav.

Finding that President Clinton’s actions were probably constitutional on their own merit, and that the only legal authority (the War Powers Resolution) which opposed his actions is unconstitutional, I believe that President Clinton’s actions in Bosnia, Serbia, and Macedonia were constitutional.

Bibliography

Primary Sources

The Constitution of the United States. Available at http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html.

Public Papers of the Presidents. Available at http://www.gpoaccess.gov/pubpapers/search.html

The War Powers Resolution. Available at http://www.yale.edu/lawweb/avalon/warpower.htm

The United Nations Charter. Available at http://www.un.org/aboutun/charter/

The United Nations Participation Act. Available at http://www.yale.edu/lawweb/avalon/decade/decad031.htm

The North Atlantic Treaty. Available at http://www.nato.int/docu/basictxt/treaty.htm

Secondary Sources

Boot, Max. The Savage Wars of Peace. Jackson: Basic Books, 2003.

Cowan, Kelly L. “Rethinking the War Powers Resolution: A Strengthened Check on Unfettered Presidential Decision Making Abroad.” Santa Clara Law Review 45(204): 99

Fisher, Louis. “The Korean War: On What Legal Basis did Truman Act?” American Journal of International Law 89(1995):21.

Glennon, Michael J. “The Gulf Crisis in International and Foreign Relations Law: The Constitution and Chapter VII of the United Nations Charter.” American Journal of International Law 85(1991):74.

Hendrickson, Ryan C. The Clinton Wars: The Constitution, Congress, and War Powers. Nashville: Vanderbilt University Press, 2002.

Madison, James. The Debates in the Federal Convention of 1787. “August 17.” Available at http://www.yale.edu/lawweb/avalon/debates/debcont.htm

Miksha, Andre. “Declaring War on the War Powers Resolution.” Valparaiso University Law Review 37(2003):651.