The War Powers Resolution: An Unnecessary, Unconstitutional Source of "Friendly Fire" in the War Against International Terrorism?

February 15, 2005

Robert F. Turner

By Professor Robert F. Turner


The conventional wisdom, at least until recently, was that our tragic misadventure in Indochina was a result of presidential usurpation of the power of Congress to "declare War," and the 1973 War Powers Resolution was the necessary legislative remedy to guard against future encroachment and protect the American people from presidential adventurism. The argument made sense to a lot of people in 1973, but it is not supported by the facts. The time has come to reexamine the proper constitutional role of Congress concerning the sending of U.S. armed forces into harms way, to reassess the rationale behind this controversial statute, and for Congress to consider anew the utility of a statute that even former Senate Majority Leader George Mitchell has declared to be unconstitutional and harmful to the security interests of the United States.

This is all the more important in the light of the current war against international terrorism, as the War Powers Resolution has played a fundamental role in encouraging the killing of hundreds of American troops in the past and endangers the safety of both military and civilians alike in the current struggle. Congress recently enacted a collection of new authorities and repealed several statutory provisions recognized to hamper unnecessarily the war against terrorism, but that job may not be finished.

Background and Overview

The War Powers Resolution was enacted over a presidential veto as Public Law 93-148 on November 7, 1973. Its alleged purpose was:

[T]o 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, 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. [1]

The statute consists of ten sections. Section 3 requires the President "in every possible instance" to "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 regularly thereafter until the forces are removed or hostilities cease. Most presidents and scholars have viewed this provision as unexceptionable and even highly desirable. Certainly it is normally wise policy for the President to consult with Congress on key foreign policy initiatives, all the more so when they involve a risk of hostilities. But the constitutional basis for Congress to compel the President to "consult" in such a setting is unclear.

Section 4 of the War Powers Resolution sets forth various reporting requirements. Thus, section 4(a)(1) requires a report when U.S. forces are introduced "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," and section 4(c) requires additional reports at least every six months during such deployments. Section 4(a)(2) demands a report when forces are deployed to foreign territory "equipped for combat"; and 4(a)(3) calls for a report when forces equipped for combat already located in foreign territory are "substantially enlarge[d] . . . ." While most commentators view the principle of such reports as desirable on policy grounds and unobjectionable on constitutional grounds, as a technical matter it is unclear what authority Congress has to compel the President to submit such reports. To the extent Congress is attempting to safeguard its power "to declare War," the scope of the reporting requirement is clearly excessive. That issue will be addressed below.

Interestingly, other provisions of the statute-such as sections 4(c) and 5(a)-are triggered by reports under section 4(a)(1), yet the statute does not expressly require that a presidential report identify the specific subsection pursuant to which it is being submitted. Rather than specifying a particular subsection, the most common practice has been to follow the precedent established by the Ford administration of reporting because of the President's desire "to keep Congress fully informed" on the matter "and consistent with the War Powers Resolution." [2] This language presumably resulted from the fact that President Ford-like Presidents Nixon, Carter, Reagan, Bush, Clinton, and presumably George W. Bush as well-viewed the statute as unconstitutional. The failure to report specifically under section 4(a)(1) has led some in Congress to accuse the President of bad faith conduct or even threatening "a constitutional crisis." [3]

Section 5 of the War Powers Resolution contains two of its most controversial features. Section 5(b) provides that if Congress does not authorize the President to continue a section 4(a)(1) deployment (sending forces "into hostilities or into a situation where imminent involvement in hostilities is clearly indicated by the circumstances") within 62 days (the 60-day clock begins running when a report is submitted or when it should have been submitted, that is, within 48 hours after the deployment), the President must withdraw the forces. He may, however, keep them there for another 30 days if necessary for their own safety. This is sometimes referred to as the "silent veto," and it allows Congress to terminate an operation without having to take a formal stance on its merits. Others have noted that if the United States gets into a quarrel with bad actors abroad, which the President and either the House or Senate think is in the national interest but about which the other branch of Congress is unable to make up its mind, the law awards the victory to our enemy. Few modern supporters of the resolution defend this provision.

Section 5(c) is even more clearly objectionable on constitutional grounds, as it authorizes Congress to order the withdrawal of U.S. forces from hostilities by concurrent resolution at any time. A concurrent resolution requires the approval of the House and Senate, but not the President, and the practice of attempting to legislate by concurrent resolutions was struck down as unconstitutional by the Supreme Court in June 1983 in I.N.S. v. Chadha. [4] Indeed, in his dissenting opinion, Justice White specifically mentioned the War Powers Resolution as one of the provisions of law being struck down by the majority in the case. [5]

A few people have sought to distinguish the War Powers Resolution veto in section 5(c) from the one struck down by the Court in Chadha on the grounds that Chadha involved a delegation of clear legislative power to the executive branch while holding back a right for Congress to "veto" the exercise of this legislative power by the executive in specific cases. In contrast, the War Powers Resolution does not involve any delegation of legislative power to the executive.

The distinction is a valid one, but the conclusion drawn by supporters of the War Powers Resolution does not even arguably follow. For if Congress may not properly reserve a veto when the executive is exercising a broad delegation of legislative power, its case is clearly weaker when it is trying to use a concurrent resolution to veto a presidential exercise of executive power.

I made this observation is a private conversation with the Chairman of the House Committee on International Relations after testifying on the origins of the War Powers Resolution about fourteen years ago, and he agreed with my reasoning. But he explained that it was nevertheless useful for Congress to voice doubts about whether Chadha had actually weakened the War Powers Resolution, as such statements might ultimately strengthen their hand in negotiations with the executive branch on such matters. For similar reasons, presumably, rather than repealing the numerous "legislative vetoes" on the statute books that were clearly struck down by Chadha, in the years following that historic decision the Congress instead enacted more than 200 (clearly unconstitutional) legislative vetoes.

Sections 6 and 7 of the War Powers Resolution establish internal procedures for expedited consideration of joint and concurrent resolutions under the statute. Section 8 is worthy of notice, if only to refute a silly argument that has been voiced both by Liberal critics of the statute and Conservative champions of presidential power in the executive branch. This argument asserts that the War Powers Resolution (unconstitutionally, in the view of Liberals) grants the President authority to send U.S. armed forces into combat for a period of sixty days. This was a key reason why Senator Thomas Eagleton refused to support the Resolution in 1973, and as recently as 1993, no less an authority than former Stanford Law School Dean John Hart Ely voiced the same concern [6]. While working in the Department of State in the mid-1980s, I encountered the same contention from an under secretary, and, more alarmingly, from a senior attorney in the Office of the Legal Adviser [7].

For the record, this interpretation is clearly ruled out by section 8(d) of the statute ("Interpretation of Joint Resolution"), which provides:

Nothing in this joint resolution-
(1) is intended to alter the constitutional authority of the Congress or of the President, or . . .
(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have in the absence of this joint resolution.

Properly understood, the War Powers Resolution reflects the fact that Congress and the President had different views on the issue of when the President could send armed forces into harms way without formal legislative sanction. Congress set forth its view in section 2 of the War Powers Resolution, and then provided a series of rules and procedures that were to apply if the President-constitutionally or otherwise-made certain types of military deployments. Pursuant to the clear language of article 8, an unconstitutional deployment by the President did not suddenly become legal because of any language in the War Powers Resolution.

The Constitutional Allocation of Powers Related to the Use of Military Force

The debate over the constitutional separation of powers concerning the use of armed force abroad during the past three decades has been remarkably unimpressive on both sides. Few commentators have taken the time to look seriously at the historical aspect of the problem, and some act as if the 1972-73 debates were an issue of first impression.

Throughout most of our history, both Congress and the President understood that decisions regarding foreign affairs were different from domestic issues and were the province of the executive except in areas where the Constitution had made a clear exception. But by the early 1970s, the theoretical and textual basis of that distinction had apparently been forgotten at both ends of Pennsylvania Avenue. Legislators and their advocates looked through the Constitution and discovered there was no mention of "national security" or "foreign affairs." The theory quickly emerged that there should be no difference between domestic and foreign affairs and Congress was the "senior partner" in making policy for both. It is thus useful to digress briefly and discuss the original theory.

Institutional Competency and the Executive Power Clause

Article II, section 1, of the Constitution granted the new nation's "executive Power" to the President. To the Framers, this was the primary grant of authority over the management of America's relations with the external world. As Professor Quincy Wright observed in his classic 1922 treatise, The Control of American Foreign Relations, "when the constitutional convention gave 'executive power' to the President, the foreign relations power was the essential element of the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto." [8]

Columbia Law Professor Louis Henkin noted in Foreign Affairs and the Constitution that the "executive power . . . was not defined because it was well understood by the Framers raised on Locke, Montesquieu and Blackstone." [9] Each of these writers argued that the control of external intercourse was "executive" in its nature [10], and because of the relevant competencies of the institutions of government this power could not effectively be vested elsewhere. As Locke explained in his Second Treatise on Civil Government:

These two Powers, Executive and Federative, though they be really distinct in themselves, yet one comprehending the Execution of the Municipal Laws of the Society within its self, upon all that are parts of it; the other the management of the security and interest of the publick [sic] without, with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than [by] the Executive; and so must necessarily be left to the Prudence and Wisdom of those whose hands it is in, to be managed for the publick [sic] good [11].

In part from their study of theory, but also from their direct experience under the Articles of Confederation, the Framers understood that Congress was institutionally incapable of effectively managing what Locke termed the business of "war, peace, leagues and alliances." And, thus, these authorities were vested in the President, subject to several specific checks. As Thomas Jefferson explained in April 1790:

The constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. . . . It has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate . . . . The transaction of business with foreign nations is executive altogether; it belongs, then, to the head of that department, except as to such portions of it as are specially submitted to the senate. Exceptions are to be construed strictly . . . . [12]

Jefferson's view was embraced as well by President Washington, Supreme Court Chief Justice John Jay, and House Republican leader James Madison [13]. Indeed, it was but a reworded version of an argument Madison had made the previous year that was embraced by both houses of Congress [14].

The Power to Declare War

Article I, section 8, clause 11, of the Constitution grants to Congress the power "to declare War." As Hamilton noted in 1793, this was an "exception" to the general grant of "executive power" to the President, and thus was intended to be narrowly construed [15]
.
One of the common errors in discussing the scope of this exception to the President's general "executive Power"-a power reinforced by the specific recognition in article II, section 2, that "[t]he President shall be Commander in Chief of the Army and Navy of the United States" [16] -has been to focus on the meaning of the term "War" under the Constitution. Congress is not granted the power of "War," but rather the more limited power "to declare War," which was a term of art from the Law of Nations with a clearly understood meaning in 1787.

The Framers were remarkably well-read men. The publicists with whom they were familiar in this area-writers like Grotius, Vattel, and Burlamaqui-all argued that a formal declaration of war was unnecessary for defensive hostilities [17]. It was only when nations were at peace and one wished to initiate an offensive (or what we would today call an aggressive) war that it was necessary to declare war. And this distinction between the President's right to use force defensively, but requiring legislative sanction to initiate an offensive war, was evident in the debate at the Philadelphia Convention over Madison's motion to give Congress not the power "to make War," but the more narrow power "to declare War." [18] In 1928 [19] and again in 1945 [20] , the world community by treaty outlawed the aggressive use of force among nations, and in the process made the declaration of war clause a constitutional anachronism. It is no coincidence that no sovereign state has clearly issued a declaration of war in more than half a century [21].

 

 

International Peacekeeping and the Power to "Declare War"

When the Senate consented to the ratification of the UN Charter in 1945, and Congress approved the UN Participation Act (UNPA) later that year, it is absolutely clear that they believed that international peacekeeping operations did not infringe upon their power "to declare War" and recognized instead that this was the business of the President [22]. The unanimous report of the Senate Foreign Relations Committee urging ratification of the Charter, quoted by the unanimous report of the House Foreign Affairs Committee on the UNPA, argued that "enforcement action" pursuant to an order of the Security Council "would not be an act of war, but would be international action for the preservation of the peace," and reasoned: "Consequently, the provisions of the Charter do not affect the exclusive power of the Congress to declare war." [23] During the final day of Senate consideration of the UNPA, an amendment offered by Senator Burton Wheeler requiring prior congressional approval before the President could send U.S. armed forces into harm's way, pursuant to a Security Council decision to use force to keep the peace, was denounced by the bipartisanship leadership as contrary to our Charter obligations and the President's well-established independent constitutional powers to use armed forces short of war for various reasons. In the end, the amendment received fewer than ten votes [24].

The Korean War

Part of the modern confusion results from a failure to understand what really happened in Korea. As soon as President Truman returned to Washington from Missouri, following the June 25, 1950, invasion, he met with his senior advisers, asked that a resolution be drafted for Congress to consider, and announced that he wanted to make an address to a joint session of Congress. The following morning, he called Senate Foreign Relations Committee Chairman Tom Connally-who had helped draft the UN Charter five years earlier-and asked for advice. As recounted by Connally in his autobiography:

He hadn't as yet made up his mind what to do. . . .
"Do you think I'll have to ask Congress for a declaration of war if I decide to send American forces into Korea?" the President asked?
"If a burglar breaks into your house," I said, "you can shoot at him without going down to the police station and getting permission. . . . You have the right to do it as commander-in-chief and under the UN Charter." [25]

A careful review of the now declassified top-secret records reveals that President Truman "played it by the book" in Korea. He personally consulted repeatedly with the joint leadership of Congress, asked repeatedly to address a joint session of Congress on the crisis, and even provided a draft resolution of approval for Congress to consider [26]. And at every turn, he was advised by congressional leaders of both parties to "stay away" from Congress and assured that he had adequate powers to do what he was doing in Korea under the Constitution and the UN Charter. And this advice he received was fully consistent with the understanding of presidential power in international peacekeeping operations that emerges from a careful review of the 1945 Senate debates on ratification of the Charter and the congressional debates on the UNPA [27].

Truman's initial decision to respond firmly to Communist aggression in Korea was overwhelmingly supported by the Congress and the American public [28]. But as the war dragged on and American casualties rose without clear signs of a quick victory, public opinion began to turn [29]. At that point, some Republicans who had initially argued the President needed no formal authorization from Congress found it expedient to denounce the conflict as "Truman's War" and proclaim it an unconstitutional "presidential war." [30] This was effective in turning still more Americans against the President, as the records of Truman's extensive consultations and other efforts to involve Congress formally in the decision process were not yet public.

The Myth that Vietnam Was an Unpopular "Presidential War"

The War Powers Resolution cannot be understood out of the context of the Vietnam War. We are constantly reminded of the importance of learning lessons from that tragic experience (so there will be "no more Vietnams"); but many, if not most, of the "lessons" being offered are simply not supported by the evidence.

Time and again we are warned against the dangers of sending troops into harm's way without the support of Congress and the American people, as President Johnson allegedly did in Vietnam. The only problem is that LBJ was essentially dragged into Vietnam by a hawkish Congress driven by strong public demands to counter Communist aggression in Indochina. Indeed, when President Johnson finally did respond firmly in Vietnam in August of 1964, his approval rating in the Gallup Polls jumped a full 30 points, from 42 to 72 percent, or a 58 percent increase [31].

A year later, when U.S. combat troops were first sent to Vietnam, public support for the President's policies increased again, with war supporters outnumbering critics by more than three-to-one [32]. Between November of 1965 and September of 1966, repeated polls showed that 60 percent of Americans favored escalation of the war over any other options [33]. Indeed, it is now clear that recorded opposition to the war in Vietnam was often misread by confusing "super-hawks" angry over Secretary of Defense Robert McNamara's "no-win" policies with a much smaller number of critics who favored withdrawal or concessions to our Communist adversaries. Thus, we now know that a plurality of the so-called "peace" voters who supported Eugene McCarthy over President Johnson in the February 1968 New Hampshire presidential primary went on in the November election to support Alabama Governor George Wallace (whose vice presidential running mate, former Strategic Air Command General Curtiss LeMay, had urged ending the war by "bombing North Vietnam back to the stone age"). [34]

As for Congress, the trends were the same. The initial commitment to defend non-Communist Indochina from Communist aggression was contained in the 1955 SEATO Treaty, which was approved by the Senate by a margin of 82-1. When in 1964 it became clear that direct U.S. intervention would likely be necessary to prevent a Communist victory, President Johnson-who was a former Senate Majority Leader and believed that President Truman's primary blunder in Korea was his failure to demand a vote in Congress-asked Congress to hold hearings and a serious debate about whether the United States should escalate its involvement in the conflict. He proposed a joint resolution (a statute) by which Congress could declare the security of Southeast Asia "vital" to U.S. security interests and providing that "the United States is . . . prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the [SEATO] Treaty requesting assistance in defense of its freedom." [35]

During the Senate floor debate on this law, Senate Foreign Relations Committee Chairman J. William Fulbright-the floor manager for the bill-was asked whether, "looking ahead, if the President decided that it was necessary to use such force as could lead into war, we will give that authority by this resolution?" He replied "That is the way I would interpret it." [36] The Southeast Asian Resolution was approved unanimously by the House of Representatives and by a vote of 88-2 in the Senate, and the President's request for funding of the conflict was more than tripled by Congress. (Neither of the two dissenting Senators was reelected to office.) [37]

In March of 1966, when there were 200,000 U.S. troops engaged in a war in South Vietnam, Senator Wayne Morse received only five favorable votes on a resolution to repeal the Southeast Asian Resolution that authorized the conflict. During that debate, Senator Jacob Javits-who would later be the primary sponsor of the War Powers Resolution in the Senate-asserted: "by virtue of acting on the resolution of August 1964, we [Congress] are a party to present policy." [38]

For several years in the late 1980s and early 1990s I taught the introductory U.S. Foreign Policy course for undergraduates at the University of Virginia, and I often used as a supplementary text Professor Cecil Crabb's excellent The Doctrines of American Foreign Policy. Dr. Crabb identifies eight major U.S. foreign policy doctrines-starting with the Monroe Doctrine and including the Open Door policy towards China and Truman's post-war Containment-and discusses each in detail. No major doctrine rivaled the degree of congressional involvement as what Dr. Crabb calls "The First Johnson Doctrine" committing the United States to the defense of South Vietnam. (Indeed, Congress does not appear to have even been consulted on many of them, including the Monroe Doctrine.) [39]

Even strong champions of legislative power like former Stanford Law School Dean John Hart Ely have admitted, "years of doubletalk and denial notwithstanding," that Congress was a full partner in getting the United States into war in Indochina. Professor Ely notes that the 1964 Southeast Asian Resolution "certainly was broad enough to authorize the subsequent actions President Johnson took in Vietnam," and that "the legislative history of the Resolution confirms that those members of Congress who had read it understood it at the time of the vote." [40] It was "presented to Congress and voted on as what it said it was, an authorization to wage war against North Vietnam." [41] In discussing the subsequent efforts by legislators to deny any responsibility and blame the war on Johnson (or Nixon), Professor Ely writes: "Particularly disillusioning over the years was the performance of Senator J. William Fulbright . . . ." [42] One might add to the list Senator Jacob Javits, who in 1966 acknowledged that Congress was a full partner in committing the nation to war in Vietnam and then seven years later introduced the War Powers Resolution to prevent future presidents from dragging the country kicking and screaming into unpopular wars without the involvement of Congress.

The Myth that Vietnam was a Mistake

This paper is about the War Powers Resolution. But since that statute was clearly premised upon the proposition that it was a mistake for the United States to become involved in that conflict, a brief comment may be in order about the underlying commitment.

Perhaps the greatest of all "myths" of the war is that it was a horrible mistake for the United States to go to the defense of South Vietnam in 1964. Indeed, if there is a consensus "lesson" to be drawn, this is likely at least a part of it.

Some argue that this is true because the war was "unwinnable." The problem with this theory is that, after years of intentionally pursuing a no-win strategy that both the Joint Chiefs of Staff and the Director of Central Intelligence denounced as counterproductive [43], U.S. policy changed dramatically under the Nixon administration, and by the end of 1972 the United States and South Vietnam essentially had the war won. That is to say, the "Viet Cong" guerrillas had been decimated, the war was being fought on the other side by North Vietnamese regulars, and the Government of [South] Vietnam was in control of all population centers and major lines of communication, and even many smaller, remote villages once considered totally under Communist control had moved into the Saigon camp. The Communist's 1972 Easter Offensive had been repelled by the South Vietnamese with only U.S. air support, and, perhaps more importantly, the December 1972 "Christmas bombing" of Hanoi and Haiphong had shown Hanoi that it was highly vulnerable to U.S. airpower and that the new American leadership was no longer hitting "soft." Sadly, an angry Congress-under strong pressure from the "peace" movement-was oblivious to these realities and unwilling to listen when real experts, like Director of Central Intelligence William Colby, tried to explain what was going on. And in May 1973, Congress passed a law [44] prohibiting the President from spending appropriated funds for combat operations in Indochina. At that point the North Vietnamese Premier concluded that "the Americans won't come back now even if we offer them candy," and Hanoi sent almost its entire Army in a conventional invasion to conquer South Vietnam, Laos, and Cambodia.

Yet another argument is that we should not have become involved in Vietnam because we had no vital security interest at stake. This is widely held, but equally wrong. Whatever the confusion in 1964, it is today absolutely clear that the Communist Party of North Vietnam (Dang Lao Dong Viet Nam) made a decision in May 1959 to use military force to "liberate" South Vietnam. This was a test case of whether Mao's strategy of armed struggle was correct. Eisenhower had largely deterred Khrushchev by the threat of responding massively to future international aggression (like the Korean War) at a place and time of America's choosing. Implicit in this policy was a threat to use nuclear weapons against Moscow. Ike had cut back the U.S. Army dramatically and placed his reliance almost entirely upon the strategic nuclear option embodied in the Strategic Air Command. Noting that nuclear weapons can't be used effectively against guerrillas who interact with the civilian population "like fish in the sea," Mao argued that, although fierce in appearance, in reality the "Imperialists" were but "paper tigers." Vietnam was the testing ground, and it was explicitly identified as such by Chinese leaders like Lin Piao, North Vietnam's Defense Minister Vo Nguyen Giap, Cuba's Ché Guevara, and numerous other advocates of Communist revolution. Their contention was that once they could show that the United States could not defeat "people's warfare" (what Moscow termed "wars of national liberation"), so-called "oppressed peoples" around the world would readily accept Communist assistance in their own revolutionary struggles. At the same time, Third World governments that might otherwise have remained anti-Communist and relied upon the United States for support would be compelled to reconsider which side they wished to embrace, and many would likely have quickly sought their own accommodations with the Communists. If the United States found it difficult to fight a Communist-inspired and supported guerrilla war in Vietnam, it would have had little chance for success if confronted by a dozen or more Vietnams throughout the Third World. And a victory by Mao's disciples in Vietnam might well have caused Soviet leaders to reassess their own hesitance to promote world revolution by armed struggle, removing a core issue of disagreement in the Sino-Soviet dispute.

Yet another argument that "Vietnam" was a "mistake" is based upon a mythology of the human rights shortcomings of our South Vietnamese allies (which were real, but not nearly as bad as portrayed by war critics), as well as incredible ignorance of the realities that followed the "liberation" of non-Communist Indochina. Like most Third World countries, South Vietnam was imperfect. But it has a relatively free press (with forty-three daily papers in Saigon alone when I left in 1971), its elections were remarkably free in the judgment of top U.S. experts who served as observers, and its prisons well above average for the region or the Third World in general. Hanoi deceived many Americans with allegations of "200,000 political prisoners" (the total number of "Communist criminals," including terrorists and extortionists, was closer to 5,000), "tiger cages" (a lie [45]), and the like. But, across the board, at their worst the governments of South Vietnam were many times preferable to their Communist alternative. And once Congress tied the President's hands by outlawing the use of appropriated funds to oppose Communist aggression in Indochina, and Hanoi conquered its neighbors by conventional military might, more people died in the first three years of "peacetime" than were killed on all sides in fourteen years of horrible war. The tens of millions who were not murdered by Communist tyrants were instead consigned to a Stalinist tyranny that decades later continued to rank among the dozen worst human rights violators in the world.

In the early days, thanks in great part to Robert McNamara, the United States pursued an incompetent, no-win strategy that prolonged the conflict, increased the necessary casualties, and encouraged the Communists to continue their aggression. But by denying the Communists a quick victory, we bought time for countries like Thailand and Indonesia-both basket cases in 1965-to thrive and strengthen themselves against future threats. By delaying the final outcome, we witnessed a radical transformation in China with the Great Proletarian Cultural Revolution-and the China we faced in 1975 was far more benign than it had been a decade earlier in terms of a commitment to world revolution. One can never be sure, but it is quite possible that, had the United States walked away and allowed the Communists to seize non-Communist Indochina by force in 1965, we would soon have found ourselves faced with the options of trying to defeat a dozen new "Vietnams" around the globe or contemplating a nuclear response against Moscow or Beijing. In the end, we might well have lost the Cold War.

The Reality of the War Powers Resolution

When the War Powers Resolution came before Congress, more than nine years had passed since Congress enacted a statute authorizing the President to use military force in Indochina and there had been five congressional elections. It is probably unfair to assume that every member of Congress knew the details of what had occurred in 1964. But certainly many did.

Whatever their recollections or knowledge of history, a primary motivation for enactment of the War Powers Resolution was to assure the American voters that Congress was not responsible for this unpopular war and that Congress was acting to prevent similar tragedies in the future. At its core, the War Powers Resolution was a fraud, designed to deceive the voters and to absolve Congress from political accountability. Republicans blamed it on Lyndon Johnson; Democrats pointed the finger at Richard Nixon. Either way, one thing was clear-Congress had nothing to do with it and was, therefore, not a proper target of public ire.

One might also note that the War Powers Resolution was totally unnecessary, as the disease it pretended to cure did not exist. Indeed, had the War Powers Resolution been enacted a decade earlier, it would not have had the slightest impact upon the Vietnam War. For, by its own terms, it provides in Section 2(c):

The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. [Emphasis added.]

The August 1964 Southeast Asian Resolution was such "specific statutory authorization," and that reality was acknowledged by the Senate Foreign Relations Committee as late as 1967. In the report accompanying the National Commitments Resolution, the Committee majority stated:

The committee does not believe that formal declarations of war are the only available means by which Congress can authorize the President to initiate limited or general hostilities. Joint resolutions such as those pertaining to Formosa, the Middle East, and the Gulf of Tonkin are a proper method of granting authority [46].

Furthermore, the record of congressional support for the conflict-beginning with the 504-2 majority by which the war was legally authorized, and continuing for years with majorities in both houses in excess of 90 percent voting hundreds of billions of new appropriations for the conflict-demonstrates that Congress had absolutely no desire to end the war until after the American people turned against it in the years following the 1968 Tet Offensive.

Indeed, another of the great myths of Vietnam is that Congress was powerless to stop the war because the President had allegedly bypassed Congress from the start. At least once a year both houses of Congress were called upon to appropriate vast new sums to continue the war, and had either house balked at providing new funding, the war could not have continued more than a few more months. The War Powers Resolution would not even arguably have stopped Vietnam, nor was it necessary had Congress wanted to end the war at any time between 1964 and 1973.

Yet another clear observation that can be made about the War Powers Resolution is that several of its key provisions are flagrantly unconstitutional. The Constitution gives to Congress the power "to declare War," which was intended to be a veto or check against an adventurist President who might seek to take the nation from peace to war over some political or economic grievance or from a desire for personal fame and conquest. As an exception to the President's general grant of the new nation's "executive Power," the congressional check was to be construed narrowly. The Framers well understood the concept of "force short of war," and throughout our history presidents have deployed U.S. armed forces into harms way to protect American citizens and their property, to enforce treaty obligations and rights, and to deter misconduct by other countries. Even if one concludes that Congress still has a check on large-scale, prolonged commitments of U.S. armed forces into hostilities, it does not follow that the power to declare war permits Congress to usurp the Commander-in-Chief power concerning military deployments that do not even arguably constitute the initiation of "war."

As Commander in Chief, the President is charged with so disposing of the resources placed under his command by Congress as in his judgment are most likely to protect American interests and maintain peace. While it may be argued that sending thousands of U.S. troops to South Korea at the request (or with the consent) of that country's government might ultimately lead to war-if, for example, China or North Korea were to decide to attack those forces-the reality is that virtually every movement of U.S. forces could encourage war. Indeed, it is absolutely clear that President Truman's decision to withdraw U.S. military personnel from South Korea in 1949 was a major factor in North Korea's decision to invade South Korea the following June.

Indeed, modern history strongly suggests that signs of American weakness and vacillation are far more likely to result in armed international aggression than signs of strength. And that is yet another major shortcoming of the War Powers Resolution. Above all else, the statute has served as an "insurance policy" for legislators who are terrified that any risk of hostilities will result in "another Vietnam."
Before Vietnam, Congress repeatedly stood tall and authorized the President to use military force to deal with threats to the peace. In 1955, when the People's Republic of China was sending signals it was contemplating an attack on Taiwan, Congress passed a strong resolution and the President sent U.S. naval forces to the region as a symbol of American resolve. The Chinese did not attack. Two years later, when things got tense in the Middle East, Congress passed another joint resolution authorizing the President to use military force, and again the situation was defused without casualties to the deployed U.S. forces. Then came the Cuban Missile Crisis, and Congress responded once again with a strong show of unity behind the President-and, once again, the "bad guys" backed down.

It was in this context that Congress overwhelmingly enacted statutory authority for the President to use force in Indochina. Most legislators presumably assumed that since similar resolutions had deterred China and the Soviet Union from adventurism, tiny North Vietnam would quickly realize it was out of its league and the effort to overthrow South Vietnam would quickly come to an end. But it is equally clear that, had Congress been assured that North Vietnam would continue its aggression, the overwhelming majority of legislators would have still favored U.S. action to stop them. Containment was the name of the game in 1964, and if the United States backed down in Indochina we could expect further challenges in Europe, the Middle East, and elsewhere.

However, few if any legislators anticipated the realities of Vietnam. Angry if misinformed constituents became quite abusive, accusing legislators of supporting puppet tyrants and the intentional slaughter of women and children. It was said that the United States was violating the Geneva Accords and had blocked free elections to reunify Vietnam because we knew Ho Chi Minh would win. Then there were stories of simple peace protesters in Vietnam being imprisoned in subterranean "tiger cages" exposed to the elements. Most legislators had no idea of the truth of what was happening in Southeast Asia; but they quickly recognized the truth of what was likely to happen in their next election if they did not find some way to absolve themselves-and Congress as an institution-from accountability for this increasingly unpopular war. Thus was born the War Powers Resolution.

Since Vietnam, the guiding principle for many in Congress has been to avoid any risk of accountability in the event there should be "another Vietnam." At the same time, it may not be wise to publicly oppose a presidential initiative to stop aggression or to promote peace. (After all, not one of the legislators who voted against declarations of war in World Wars I and II, and the resolution authorizing hostilities in Indochina, remained in office following the next election.)

The War Powers Resolution has turned out to be the perfect solution. If the President wants to send U.S. forces into harms way for an obviously good cause, legislators don't have to oppose the deployment on the merits. All they need to do is demand that the President "obey the law," and then impose such burdensome conditions before they will approve the operation under the War Powers Resolution that the President will likely be forced to "go it alone." Then, if the operation is a success, Members of Congress can come out of hiding and grab a large sign or flag to carry in the victory parade. But if the deployment proves unsuccessful-and especially if there are American casualties-the same legislators emerge unscathed to denounce the President as a lawbreaker and solemnly shoot the wounded.

Space does not permit a full discussion of this phenomenon, which is just as well as I have dealt with it extensively in two books on the War Powers Resolution [47]. But compare the reaction of Congress to President Ford's rescue of the crew of the S.S. Mayaguez in Cambodia during May 1975 with President Carter's failed attempt to rescue U.S. hostages from Iran four years later. In the Mayaguez rescue, President Ford flagrantly violated not only the War Powers Resolution [48] but also several specific statutory prohibitions on using appropriated funds for combat operations by U.S. armed forces "in or over or from off the shores of . . . Cambodia." [49] But the operation was a success, and it received strong support from the American public. The Senate Foreign Relations Committee responded by unanimously passing a resolution praising the rescue and falsely asserting it was conducted "within the framework of the War Powers Resolution." [50] In contrast, President Carter's rescue attempt failed, so the Chairman and Ranking Member of the Foreign Relations Committee held a press conference denouncing the President for violating the War Powers Resolution, and other Members of Congress suggested the President should be impeached [51].

Over the years, the popularity of the War Powers Resolution has decreased, and many of its strongest original supporters have deserted the cause. Senator Frank Church was one of the leading Senate critics of the Vietnam War and a champion of the War Powers Resolution, but years later acknowledged that the statute was unnecessary and concluded: "I wonder really whether we have done very much in furthering our purpose through the War Powers Resolution." [52] Another prominent Vietnam critic who championed war powers legislation-but ultimately voted against the bill that passed on the theory that it was not tough enough in restricting the President-commented in 1988:

Finally . . . I came to the conclusion that Congress really didn't want to be in on the decisionmaking process as to when, how, and where we go to war. I came to the conclusion that Congress really didn't want to have its fingerprints on sensitive matters pertaining to putting our Armed Forces into hostilities. I came to the conclusion that Congress preferred the right of retrospective criticism to the right of anticipatory, participatory judgment. . . . I harbor the notion that most Senators and House Members don't have the political stomach for decisionmaking involving war [53].

The apparent political death knell to the War Powers Resolution came coincidentally on Ho Chi Minh's ninety-eighth birthday, on May 19, 1988, when Senate Majority Leader George Mitchell, former Majority Leader Robert Byrd, Armed Services Committee Chairman Sam Nunn, and ranking Republican on that committee John Warner, took the floor of the Senate to lambaste the 1973 law. Senator Nunn noted that it "encourages confrontation rather than consultation between the President and the Congress" and "raises questions about the U.S. staying power in [the] midst of a crisis, thus making it harder for the United States to secure the cooperation of our friends abroad." [54]

Particularly hard-hitting was the critique from Majority Leader Mitchell, who had proven such a strong champion of legislative prerogatives during the Iran-Contra scandal of the previous two years. He told his Senate colleagues that "the War Powers Resolution does not work, because it oversteps the constitutional bounds on Congress' power to control the Armed Forces in situations short of war and because it potentially undermines our ability to effectively defend our national interests." [55]

In January 1991, when I was testifying before the Senate Judiciary Committee on the President's constitutional power to use troops in the Persian Gulf in response to the Iraqi invasion of Kuwait without specific statutory authorization, I took the unusual step of asking Chairman Joe Biden-who had earlier chaired a special subcommittee of the Foreign Relations Committee examining the War Powers Resolution-whether he believed President Bush had violated the law up until that point. He replied: "Well, I think arguably he's violated the war powers act; but that's another debate . . . and I happen to think the war powers act is not practically functional; so, therefore, I think it's an academic exercise to debate that. [56]"

During the decade that followed, the Resolution was seldom even mentioned. On February 29, 1996, it was my honor to participate in a debate on Capitol Hill on the proposition "Resolved: That the War Powers Resolution Ought to Be Repealed." Taking the affirmative with me was Representative Henry Hyde, the distinguished Chairman of the House Judiciary Committee. Assigned the negative position was Representative Lee Hamilton-former chairman of both the House Permanent Select Committee on Intelligence and the Committee on International Relations-who was paired with Dr. Louis Fisher of the Library of Congress' Congressional Research Service. To our surprise, neither Representative Hamilton nor Dr. Fisher was willing to try to defend the War Powers Resolution.

Suddenly, on September 14, 2001, the War Powers Resolution experienced an apparent rebirth, when it was repeatedly cited in congressional legislation authorizing President Bush to use military force in response to the terrorist attacks on the World Trade Center and the Pentagon the previous Tuesday. The references received little apparent notice, but to some of us who had followed these issues closely over the past twenty-eight years, there was an incongruity in mentioning this controversial statute at a time when both parties of Congress seemed so anxious to create a new post-Vietnam era of bipartisan cooperation. It was almost as if the drafters of the anti-terrorism statute were oblivious to the role the War Powers Resolution had already played in undermining U.S. security, encouraging terrorism, and indeed contributing substantially to the deaths of hundreds of American military personnel.

The War Powers Resolution and the War Against Terrorism

Consider the following hypothetical situation. Next Friday evening, while Members of Congress are scattered across the land seeing to the needs of their constituents or spending some rare quality time with their families or loved ones, followers of Osama bin Laden-or any of dozens of other terrorist groups that wish America ill-seize control of a Scandinavian cruise ship carrying 1,000 American civilian passengers. They immediately execute fifty, and send word to the White House that fifty more Americans will be murdered every half-hour unless the President immediately frees all accused "terrorists" in United States jails. The ship captain confirms the seriousness of the situation and begs that the demands be met.

What are the President's options? He cannot reasonably summon Congress back to Washington, as under the terrorists' timetable the last of the hostages will be dead before morning. Even if both houses of Congress were already in session, the process of introducing legislation in each House and then reconciling differences in a conference committee takes days, weeks, and often months. When President Ford sought emergency clarification from Congress on April 10, 1975, about his authority to use military force to evacuate endangered Americans and South Vietnamese or Third Country Nationals whose lives might be at risk because of their support for the United States, he emphasized the emergency nature of the situation and asked that legislation be completed by April 19. When North Vietnamese tanks rolled down the streets of Saigon and crashed through the gates of the Presidential Palace on April 30, President Ford had already acted to rescue as many endangered people as possible-but Congress was still debating various versions of legislation to authorize the rescue. They never did finish the job [57].

But, back to our hypothetical, even if we exclude the possibility of formal congressional action, the President has impressive hostage rescue resources at his command in the form of the Special Operations Command, Delta Force, Navy Seals, and the like. Can he as Commander in Chief order them to attempt a rescue? Until enactment of the War Powers Resolution, the consensus answer to that question would have been "yes." [58] But in enacting the War Powers Resolution, Congress decided that the President has no power to rescue endangered American citizens outside the territorial limits of the United States without first coming to Congress for permission. Section 2(c) of the statute asserts that:

The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

According to Senator Javits, this attempt to deny the President the authority to rescue endangered Americans abroad was both intentional and clearly unconstitutional. The Senate version of the bill recognized this power, but the House of Representatives was unwilling to concede it and the Senate caved in the end. Whatever the reason, Congress has passed a law attempting to deny the President any authority to rescue American civilians from terrorist attacks outside the territorial limits of the United States. And, in the wake of the 9-11 terrorist attacks on the World Trade Center and the Pentagon, Congress in its wisdom has seen fit to revive this unconstitutional, shameful fraud of a statute and set it forth as a standard for presidential behavior in the war on terrorism.

As much as we might like to think that the recent murderous attacks on our nation have finally brought us together and put the divisiveness of Vietnam behind us, a careful reading of the authorizing statute passed overwhelmingly by Congress on September 14 leaves some doubt. In addition to the repeated references to the War Powers Resolution, the President is authorized to use not "necessary" force, but "necessary and appropriate" force. This is not boilerplate language for declarations of war or other statutory authorizations for the use of military force. It sounds instead like the kind of ambiguous, equivocal terminology that someone might slip into a statute, so that if the President's overwhelming popularity at present slips in the future, or something goes wrong in the struggle against terrorism, legislators will be able to absolve themselves of all complicity by proclaiming that the President's conduct of the war was "inappropriate" and thus "illegal."

Sadly, the idea that the War Powers Resolution might endanger American lives in the struggle against terrorism is more than just a hypothetical. Indeed, more Americans were murdered by terrorists as a direct result of the War Powers Resolution than were killed in all of our military operations since the end of the Vietnam War. The War Powers Resolution was a primary factor in the decision by Middle Eastern terrorists to blow up the Battalion Landing Team Headquarters at the Beirut International Airport on October 23, 1984, killing 241 sleeping marines, sailors, and soldiers.

When President Reagan sent the Marines to Lebanon as part of an international peacekeeping force alongside British, French, and Italian forces, the decision was not even arguably an infringement upon the power of Congress "to declare War." We were not going to "War," we were sending a contingent of U.S. forces at the request of all of the warring factions in Lebanon to stand between them so they could meet in confidence and try to negotiate a peaceful end to their conflict. Every country in the region originally endorsed the deployment, and no one in Congress spoke against it on the merits.
But several noted there were risks involved-risks the President openly acknowledged-and soon the demands started coming in for a report under Section 4(a)(1) of the War Powers Resolution, the provision governing the sending of U.S. Armed Forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

To begin with, to send such a report to Congress might well have undermined the mission in Beirut. There were numerous, highly paranoid factions engaged in the Lebanese quarrels who had consented to the American presence on the theory that it was going to be a peacekeeping mission. Had the President notified Congress that he was taking the nation to "War," militia leaders who had been assured the Americans were coming in peace might well have concluded that they were going to be the object of the American hostilities. Why else would President Reagan or his representatives have lied to them about the nature of the mission?

As it turned out, the congressional critics were wrong about "imminent involvement in hostilities," as nearly a year passed before any of the marines came under hostile fire. During that year, the situation in Beirut became more dangerous because the debate in Congress took a highly partisan turn. Democrats like Senator Alan Cranston of California and former Majority Leader Robert Byrd announced that they would not authorize the President to continue the deployment unless he first told Congress, as Cranston put it, "exactly how and when we propose to extricate them." [59]

One of the points on which there was no apparent discord at the Federal Convention in Philadelphia was that Congress had no role in the actual conduct of military operations. They were given only a "veto" over certain kinds of commitments, leaving to the President such decisions as where to deploy troops, when to attack or redeploy troops, and when to bring them home. As Locke explained, such decisions are heavily dependent upon the behavior of external actors, and it would have been foolish for the President to declare in advance that U.S. forces would be withdrawn on a given date irrespective of those realities. Imagine the reaction of Franklin D. Roosevelt had Congress demanded a withdrawal deadline before it would consider authorizing the President to defend the United States following Pearl Harbor? Once they knew the artificial date on which the United States would withdraw, opponents of a peace settlement in Beirut would be able to orchestrate their strategy for maximum advantage.

For much of the press and many Americans, the issue no longer became whether the United States should assist the parties in an important Middle Eastern country to resolve differences and achieve peace, but whether the President was "above the law." Legislation to authorize the President to continue the deployment led to more partisan debate, and the Washington Post noted that the active involvement of Senate Democratic Campaign Chairman Lloyd Bentsen in the debate suggested that "the Democrats are doing push-ups" for the 1984 elections [60]. Marine Corps Commandant P.X. Kelley became so concerned about the partisan debate that he testified before the Senate Foreign Relations Committee that the partisan debate could "encourage hostile forces or forces inimical to the best interest, the life and limb of the Marines." General Kelley warned that "hostile forces would use this as an opportunity to up the ante against our Marines." [61]

A few days later, when an unidentified White House staff member repeated General Kelley's concern, the Washington Post reported that Senate Democrats were outraged:

"To suggest . . . that congressional insistence that the law be lived up to is somehow giving aid and comfort to the enemy is totally unacceptable," said Sen. Thomas F. Eagleton (D-Mo.). . . . "The Administration has thrown out a red herring," Eagleton said, with "an attempt to intimidate the Congress and frighten the American people with this kind of ludicrous argument."

This partisan nature of the debate became even more apparent when the Foreign Relations Committee split completely upon party lines on the deployment, and the minority report was entitled "Minority Views of All Democratic Members of the Committee." In the end, with several references to avoiding future "Vietnams," the Senate voted 54-46 to allow the Marines to remain, with but two Senate Democrats supporting the President. But even then, the issue was not over, as Republicans and Democrats alike emphasized that Congress could reconsider the issue at any time if there were further casualties among the Marines.

All of this partisan bickering was not lost on radical states in the Middle East, and the Syrian Foreign Minister announced that the United States was "short of breath." [62] The message had also not escaped radical Muslim militia members in Beirut, and in October U.S. intelligence intercepted a message between two terrorist units saying: "If we kill 15 Marines, the rest will leave." Inadvertently, by its partisan debate and repeated pronouncements that further Marine casualties could provoke another debate and a withdrawal of funds for the deployment (such legislation had already been reported out of a key House subcommittee), in their partisan effort to invoke the War Powers Resolution, Congress had essentially placed a bounty on the lives of American forces.

The rest is history. Early on the morning of Sunday, October 23, 1983, a Mercedes truck loaded with highly-sophisticated explosives drove into the Marine Corps compound at the Beirut International Airport and exploded. America's terrorist enemies had capitalized on the congressional signals of weakness by murdering 241 sleeping marines, sailors, and soldiers-more Marines than had been lost on any single day since the height of the Vietnam War in 1968 and more American military personnel than had been killed in the Gulf War, Grenada, Haiti, Somalia, the Former Yugoslavia, and all other military operations since Vietnam until the September 11, 2001 attack on the Pentagon.

Just as Congress had passed the War Powers Resolution in 1973 to misdirect the American people into believing that it bore no responsibility for the tragic defeat in Indochina-when, in reality, by cutting off funds it had snatched defeat from the jaws of victory-after the Beirut bombing Congress demanded that Commandant Kelley bring them the head of a Marine they could blame the latest catastrophe upon. General Kelley, an officer of legendary ability, principle, and courage, who was widely expected to soon be named the first Marine to chair the Joint Chiefs of Staff, refused to sacrifice his subordinates to appease Congress or the press. In taking a principled stand, he understood that he would never become Chairman.

Congress deserves the appreciation of all Americans for its bipartisan unity immediately following the September 11 terrorist attacks. But the multiple references to the War Powers Resolution in the statutory authorization approved three days later suggests either that things really have not changed or that the tragedy of October 23, 1983 had been forgotten.

The thousands of people murdered in the World Trade Center and the Pentagon on September 11, 2001, would not have died had the terrorists been deterred. Deterrence is a function of perceptions of strength and will. Nothing in the past three decades has done more to undermine perceptions of U.S. will than the behavior of Congress, outlawing efforts to prevent international aggression in places like Angola and Central America and threatening to do so if there were casualties time and again in crisis spots around the globe. Both Democrats and Republicans have ignored the fundamental principle that partisan politics should stop at the water's edge. And nothing has facilitated this process than the War Powers Resolution.

The statute has already played a critical role in the killing of hundreds of American servicemen. It continues to tell terrorists and others who wish us ill that the American President has no constitutional authority to rescue American citizens on the high seas or in foreign lands. And these costs are not in the slightest way offset by any positive benefit of the statute. It was, from the start, a fraud designed to mislead American voters into believing that Congress had no responsibility for "Vietnam." Had it been on the statute books a decade earlier, it would not have in the slightest way prevented what happened in Vietnam. It is flagrantly unconstitutional on numerous grounds, and this has been acknowledged by senior leaders of both political parties. During times of crisis, it shifts the debate from the wisdom of military action on its merits to a dispute over procedure and unreasonable demands that the President announce artificial withdrawal dates and other constraints likely to undermine operational success.
If Congress is serious about supporting the war against terrorism, it should immediately repeal this unnecessary, unconstitutional, and shameful statute.

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1. The War Powers Resolution, Pub. L. 93-148 [H.J. Res. 542], 87 Stat. 555, 50 U.S.C. §§ 1541-1548, passed over President's veto Nov. 7, 1973, Sec. 2(a).
2. See, e.g., ROBERT F. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE 82 (1983).
3. Id. at 86.
4. 462 U.S. 919 (1983).
5. Id. at 967, 1003.
6. JOHN HART ELY, WAR AND RESPONSIBILITY 116 (1993).
7. After we discussed the issue, he changed his position.
8. QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 147 (1922).
9. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 43 (1972).
10. Locke coined the term federative power to distinguish it from the executive's duty to see the laws enacted by the legislature faithfully executed.
11. JOHN LOCKE, TWO TREATISES OF GOVERNMENT § 147 (Paul Laslett, rev. ed. 1963).
12. 16 THE PAPERS OF THOMAS JEFFERSON 379 (Julian P. Boyd, ed. 1961) (italics in original).
13. 4 THE DIARIES OF GEORGE WASHINGTON 122 (John C. Fitzpatrick, ed. 1925).
14. The scope of the "executive Power" clause first arose in June of 1789 when the House considered a bill to establish the Department of Foreign Affairs and had to decide in what institution the power to remove the Secretary of Foreign Affairs from office was vested. The argument that it belonged jointly to the President and the Senate (because the Senate was expressly joined in the appointment power) was rejected on the theory that appointment and removal were inherently executive functions, and the Senate's role in appointments was an exception and thus must be interpreted narrowly. In explaining this decision in a letter to Edmund Pendleton, Madison wrote "the Executive power being in general terms vested in the President, all powers of an Executive nature, not particularly taken away must belong to that department . . . ." 5 THE WRITINGS OF JAMES MADISON 405-06 (Gaillard Hunt, ed. 1904).
15. "The General doctrine of our Constitution, then, is, that the EXECUTIVE POWER of the nation is vested in the President; subject only to the exceptions and qu[a]lifications which are expressed in the instrument. . . . It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general "executive power" vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution." Pacificus I, in 15 PAPERS OF ALEXANDER HAMILTON, 39, 42 (Harold C. Syrett ed., 1969)(italics in original).
16. U.S. CONST. Art. II, Sec. 2, cl. 1.
17. See Robert F. Turner, War and the Forgotten Executive Power Clause of the Constitution, 34 VA. J. INT'L L. 903 (1994). To properly understand the term "defensive" in this context, it is important to understand that declarations of war were governed by jus ad bellum (the law concerning the initiation of coercion) rather than jus in bello (the law governing the conduct of military operations, widely described as the law of armed conflict today). Thus, the offensive-defensive distinction relevant to a declaration of war related entirely to which State launched the attack and which State was attacked, and not to whether the victim of an aggressive attack elected to defend itself by blocking punches or launching a major counterattack.
18. See, e.g., 4 WRITINGS OF JAMES MADISON 227-28. Madison told his colleagues that the change from "make" to "declare" war would leave the President "the power to repel sudden attacks," and Sherman argued that "[t]he Executive shd. Be able to repel and not to commence war." Id. at 227.
19. Treaty on the Renunciation of War As An Instrument of National Policy (Kellogg-Briand), Aug. 27, 1928, 46 Stat. 2343, TIAS 796, 94 LNTS 57 (entered into force July 24, 1929).
20. Article 2(4) of the United Nations Charter provides: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."
21. The power of Congress to declare War remains a part of the U.S. Constitution, and were the President to decide to violate international law and initiate an aggressive war the Congress would be entitled to pass judgment on the decision and either branch could exercise a "veto" by refusing to approve a declaration of war.
22. See Robert F. Turner, Truman, Korea, and the Constitution: Debunking the "Imperial President" Myth, 19 HARV. J. L. & PUB. POL. 533 (1996).
23. Quoted in id. at 551.
24. Id. at 554-55.
25. Quoted in id. at 567.
26. Id. at 566-69.
27. Id. at 541-56. To mention just one example, Senator Scott Lucas-a member of the Foreign Relations Committee who later served as Senate Majority Leader at the time of the Korean War-noted during the debate over consenting to the ratification of the UN Charter that the President's duty to see the laws faithfully executed also gave him authority to send troops into harms way: "Under the Constitution the President is bound to execute faithfully the laws of the country and to protect the lives and liberty and property of the American people and also to carry out faithfully the execution of treaties. In so doing he, of course, can send the forces of this country anywhere, and it has been done more than a hundred times without any act of Congress." Id. at 539.
28. More than three out of four Americans (77%) supported the commitment in July 1950. Id. at 579, n.219.
29. By January 1951, Americans favored withdrawal from Korea by a margin of 66% to 25%. Id.
30. Id. at 577-79.
31. See, e.g., Robert F. Turner, How Political Warfare Caused America to Snatch Defeat from the Jaws of Victory in Vietnam, in THE REAL LESSONS OF THE VIETNAM WAR 223 (John Norton Moore & Robert F. Turner, eds. 2002) (forthcoming).
32. Id. at 224.
33. Id.
34. Id. at 225.
35. Southeast Asian Resolution, Pub. L. 88-408 [H.J. Res. 1145], 78 Stat. 384, approved Aug. 10, 1964.
36. Quoted in Turner, How Political Warfare Caused America to Snatch Defeat from the Jaws of Victory in Vietnam 122.
37. Id.
38. Quoted in id. at 122.
39. See generally, CECIL V. CRABB, JR., THE DOCTRINES OF AMERICAN FOREIGN POLICY (1982).
40. JOHN HART ELY, WAR AND RESPONSIBILITY 16-17 (1993).
41. Id. at 53.
42. Id. at16.
43. See, e.g., WILLIAM COLBY, LOST VICTORY (1989); and John Norton Moore & Robert F. Turner, Postscript: Could the War Have Been Won, in THE REAL LESSONS OF THE VIETNAM WAR 465.
44. "Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia." Continuing Appropriations for FY 1974, Sect. 108, Pub. L. 93-52, 87 Stat. 130 (1973). Identical language was attached to subsequent appropriations bills.
45. The alleged "tiger cages" of Con Son Island, said to be underground and so tiny a Vietnamese adult could not stand upright in them, turned out to be above ground, sheltered from the elements, and three meters (roughly ten feet) tall. I personally measured them in 1974.
46. Senate Foreign Relations Committee, Report on the National Commitments Resolution, Sen. Rep't No. 90-797, 90th Cong., 1st Sess., at 25 (1967).
47. ROBERT F. TURNER, THE WAR POWERS RESOLUTION: ITS IMPLEMENTATION IN THEORY AND PRACTICE (1983), and ROBERT F. TURNER, REPEALING THE WAR POWERS RESOLUTION: RESTORING THE RULE OF LAW IN U.S. FOREIGN POLICY (1991).
48. As already noted, Section 2(c) of the War Powers Resolution asserts that the President may send U.S. armed forces into harms way only when authorized by Congress or pursuant to an "attack upon the United States, its territories or possessions, or its armed forces." No provision is made for rescuing endangered civilians abroad. Nor, for that matter, did President Ford comply with the "consultation" provisions of the War Powers Resolution. I took one of the calls from the White House (my boss, the Assistant Senate Minority Leader and a member of the Committee on Foreign Relations, was on the Senate floor at the time so the call was transferred to me), and there was no suggesting of "consultation" at all. We were being notified of a presidential decision, and in retrospect it is clear that hostilities were already underway before we were even notified.
49. See supra, note 44.
50. Quoted in TURNER, THE WAR POWERS RESOLUTION 63.
51. Id. at 69-73.
52. Quoted in TURNER, REPEALING THE WAR POWERS RESOLUTION 161.
53. Id. at 160.
54. Id. at 162.
55. Id.
56. Id. at 163-64.
57. See TURNER, THE WAR POWERS RESOLUTION 52-59.
58. Clearly, the War Powers Resolution cannot amend the Constitution, so the President's independent constitutional authority to rescue American citizens in this setting is clear.
59. TURNER, REPEALING THE WAR POWERS RESOLUTION 139-40.
60. Quoted in id. at 141.
61. Id. at 142.
62. Id. at 143-44.