[Congressional Record Volume 141, Number 204 (Tuesday, December 19, 1995)]
[House]
[Pages H15170-H15173]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  THE LACK OF POWER OF THE PRESIDENT TO COMMIT TROOPS ABROAD WITHOUT 
                      CONGRESSIONAL AUTHORIZATION

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from California [Mr. Horn] is recognized for 5 minutes.
  Mr. HORN. Mr. Speaker, we have a President with a lack of will on the 
budget but an excess of will on having troops in Bosnia.
  The excess of will includes the use of an excess of power that in 
reality does not exist. If George Washington, our greatest President, 
and John Marshall, our greatest Chief Justice, were here today, they 
would not believe what the President has done.
  Why do I say that? Very simply. Washington presided over the 
Constitutional Convention. He knew what the Framers meant when they 
gave the President the power to be Commander in Chief gave the 
President the power to be Commander in Chief of the Army and Navy. So 
did Marshall and his court, a court he dominated for over three 
decades. They made the basic interpretations of what the Constitution 
was meant to be.
  In ``The Federalist'' No. 74 Alexander Hamilton said, very simply, 
``The President of the United States is to be `Commander in Chief of 
the Army and Navy of the United States and of the militia of the 
several States when called into the actual service of the United 
States.'
  But when the first President, Washington, confronted a situation such 
as the current President confronted, he deferred to Congress, as did 
John Adams, as did Thomas Jefferson, as did most other Presidents.

[[Page H15171]]

  The expert on this area is Dr. Louis Fisher, senior specialist in 
separation of powers of the Office of Senior Specialists of the 
Congressional Research Service in the Library of Congress. Dr. Fisher, 
in his essay ``The Barbary Wars: Legal Precedent for Invading Haiti?'' 
noted this: That George Washington and John Adams in their ``military 
action conformed to the framers' expectation that the decision to go to 
war or to mount military operations was reserved to Congress and 
required advance authorization.''
  For example, ``President Washington's military actions against Indian 
tribes were initially authorized by Congress.'' In his writings, George 
Washington noted specifically that ``military operations were confined 
to defensive measures. Offensive action required authority from 
Congress.''
  Each President that I have mentioned--Washington, Adams, and 
Jefferson--said the same thing. Jefferson listened to his Cabinet on 
the subject of the use of force against the Barbary powers (Morocco, 
Algiers, Tunis, and Tripoli), and their various theories of when 
Jefferson decided to act he based his action ``on statutory authority 
rather than theories of inherent presidential power,'' something we 
have heard a lot about since 1933.
  As Dr. Fisher restates this history, he observes that Jefferson cited 
the statute of March 3, 1801 as a basis for his action. A directive of 
May 20th ordered a captain of the Navy to take his squadron to the 
Mediterranean to protect American commerce against the Barbary powers. 
Jefferson settled on consulting Congress. Between 1802 and 1815, a 
dozen statutes were passed by Congress and approved by Presidents 
Jefferson and Madison to deal with the Barbary pirates who were hurting 
United States shipping. ``By the end of 1815,'' as Dr. Fisher sums up, 
``Madison could report to Congress on the successful termination of the 
war with Algiers.''
  Jefferson recognized there was a difference--as had Washington--that 
between defensive and offensive military operations. That was not 
surprising. After all, Jefferson had been Washington's Secretary of 
State. In fact, Washington said in 1793, ``the Constitution vests the 
power of declaring war with Congress; therefore, no offensive 
expedition of importance can be undertaken until after they have 
deliberated upon the subject, and authorized such a measure.''
  We also have in modern times a wise Secretary of Defense who set out 
some fairly substantial criteria that any President or any Secretary of 
Defense should meet before committing American troops abroad. In a very 
significant speech on November 28, 1984, on ``The Uses of Military 
Power,'' then Secretary of Defense Casper W. Weinberger suggested that 
there are at least six tests that must be met if American forces are to 
be used.
  Let me just read a few lines from the Secretary's remarks and then we 
will put the rest in the Record.
  ``First, the United States should not commit forces to combat 
overseas unless the particular engagement or occasion is deemed vital 
to our national interest or that or our allies * * *.''
  Fourth, he noted still later that when the forces do change, in terms 
of size, composition and disposition, then so must our combat 
requirements be continually reassessed. He cautioned: ``We must 
continuously keep as a beacon light before us the basic questions. Is 
this conflict in our national interest?
  Fifth, he noted that ``before the U.S. commits combat forces abroad, 
there must be some reasonable assurance we will have the support of the 
American people and their elected representatives in Congress. This 
support cannot be achieved unless we are candid in making clear the 
threats we face; the support cannot be sustained without continuing and 
close consultation.''
  He means with Congress as his next sentence clearly states: ``We 
cannot fight a battle with the Congress at home while asking our troops 
to win a war overseas or, as in the case of Vietnam, in effect asking 
our troops not to win but just to be there.''

  Finally, said Secretary Weinberger, ``the commitment of U.S. forces 
to combat should be a last resort.''
  Those are wise words, wise decisions made by George Washington, made 
by John Adams, made by Thomas Jefferson, made by the Supreme Court of 
the United States and the Chief Justice of the United States, John 
Marshall, and in modern times seconded by one of the major Secretaries 
of Defense of the post-war period.
  Mr. Speaker, our troops should not be in Bosnia. Of course, we 
support them once they are put there. We came within five votes in the 
House of Representatives in not having our troops in Bosnia when we 
voted for the Dornan amendment. It is sad that we lost a majority. That 
was a mistake. It is too bad we did not pick up a few votes on that, 
but now that our armed services are there, we do have to help.
  But ``help our troops'' has also been the ruse that two Presidents 
found to keep soldiers in Vietnam when it was clear that they should 
not be there. Of course we support the troops. Every single Member of 
this body supports the troops. The question is: ``Should they be there 
in the first place?''
  Mr. Speaker, I include the following documents for the Record:

Excerpts From an Address on ``The Uses of Military Power'' by Secretary 
    of Defense Caspar W. Weinberger Before the National Press Club, 
                           November 28, 1984:

       I believe the postwar period has taught us several lessons, 
     and from them I have developed six major tests to be applied 
     when we are weighing the use of U.S. Combat Forces abroad. 
     Let me now share them with you:
       (1) First, the United States should not commit forces to 
     combat overseas unless the particular engagement or occasion 
     is deemed vital to our national interest or that of our 
     allies. That emphatically does not mean that we should 
     declare beforehand, as we did with Korea in 1950, that a 
     particular area is outside our strategic perimeter.
       (2) Second, if we decide it is necessary to put combat 
     troops into a given situation, we should do so 
     wholeheartedly, and with the clear intention of winning. If 
     we are unwilling to commit the forces or resources necessary 
     to achieve our objectives, we should not commit them at all. 
     Of course if the particular situation requires only limited 
     force to win our objectives, then we should not hesitate to 
     commit forces sized accordingly. When Hitler broke treaties 
     and remilitarized the Rhineland, small combat forces then 
     could perhaps have prevented the Holocaust of World War II.
       (3) Third, if we do decide to commit forces to combat 
     overseas, we should have clearly defined political and 
     military objectives. And we should know precisely how our 
     forces can accomplish those clearly defined objectives. And 
     we should have and send the forces needed to do just that. As 
     Clausewitz wrote, ``no one starts a war--or rather, no one in 
     his senses ought to do so--without first being clear in his 
     mind what he intends to achieve by that war, and how he 
     intends to conduct it.''
       War may be different today than in Clausewitz's time, but 
     the need for well-defined objectives and a consistent 
     strategy is still essential. If we determine that a combat 
     mission has become necessary for our vital national 
     interests, then we must send forces capable to do the job--
     and not assign a combat mission to a force configured for 
     peacekeeping.
       (4) Fourth, the relationship between our objectives and the 
     forces we have committed--their size, composition and 
     disposition--must be continually reassessed and adjusted if 
     necessary. Conditions and objectives invariably change during 
     the course of a conflict. When they do change, then so must 
     our combat requirements. We must continuously keep as a 
     beacon light before us the basic questions: ``Is this 
     conflict in our national interest?'' ``Does our national 
     interest require us to fight, to use force of arms?'' If the 
     answers are ``yes'', then we must win. If the answers are 
     ``no'', then we should not be in combat.
       (5) Fifth, before the United States commits combat forces 
     abroad, there must be some reasonable assurance we will have 
     the support of the American people and their elected 
     Representatives in Congress. This support cannot be achieved 
     unless we are candid in making clear the threats we face; the 
     support cannot be sustained without continuing and close 
     consultation. We cannot fight a battle with the congress at 
     home while asking our troops to win a war overseas or, as in 
     the case of Vietnam, in effect asking our troops not to win, 
     but just to be there.
       (6) Finally, the commitment of U.S. Forces to combat should 
     be a last resort.
                                                                    ____


         The Barbary Wars: Legal Precedent for Invading Haiti?


                                summary

       The claim that President Clinton has constitutional 
     authority to invade Haiti without first obtaining 
     congressional authority is often linked to early presidential 
     actions. Supporters of broad executive power argue that a 
     President may deploy troops on his own authority and that 
     Congress can restrain him only after he acts. As support for 
     this position, the Barbary Wars during the time of Presidents 
     Jefferson and Madison are often cited. However. the 
     historical record demonstrates that these military operations 
     received advance authority from Congress. 

[[Page H15172]]
     To the extent that presidential initiatives were taken before 
     congressional action, they were defensive in nature and not 
     offensive (as contemplated for Haiti).


                               background

       During the presidencies of George Washington and John 
     Adams. U.S. military action conformed to the framers' 
     expectation that the decision to go to war or to mount 
     military operations was reserved to Congress and required 
     advance authorization. For example, President Washington's 
     military actions against Indian tribes were initially 
     authorized by Congress. 1 Stat. 96, Sec. 5 (1789); 1 Stat. 
     121, Sec. 16 (1790); 1 Stat. 222 (1791). Consistent with 
     these statutes, military operations were confined to 
     defensive measures. Offensive action required authority from 
     Congress. 33 The Writings of George Washington 73 (John C. 
     Fitzpatrick ed. 1939).
       Similarly, when President Washington used military force in 
     the Whiskey Rebellion of 1794, he acted on the basis of 
     statutory authority. 1 Stat. 264, Sec. 1 (1792). President 
     John Adams engaged in the ``quasi-war'' with France from 1798 
     to 1800. Although Congress did not declare war, military 
     activities were fully authorized by more than two dozen 
     statutes in 1798. 1 Stat. 547-611.


                    actions by jefferson and madison

       Elected President in 1800, Thomas Jefferson inherited the 
     pattern established during the Washington and Adams 
     administrations: Congress had to authorize offensive military 
     actions in advance. One of the first issues awaiting 
     Jefferson was the practice of paying annual bribes 
     (``tributes'') to four states of North Africa: Morocco, 
     Algiers, Tunis, and Tripoli. Regular payments were made so 
     that these countries would not interfere with American 
     merchantmen. Over a period of ten years, Washington and Adams 
     paid nearly $10,000,000 in tributes.
       In his capacity as Secretary of State in 1790, Jefferson 
     had identified for Congress a number of options in dealing 
     with the Barbary powers. In each case it was up to Congress 
     to establish national policy and the executive branch to 
     implement it:
       Upon the whole, it rests with Congress to decide between 
     war, tribute, and ransom, as the means of reestablishing our 
     Mediterranean commerce. If war, they will consider how far 
     our own resources shall be called forth, and how far they 
     will enable the Executive to engage, in the forms of the 
     constitution, the co-operation of other Powers. If tribute or 
     ransom, it will rest with them to limit and provide the 
     amount; and with the Executive, observing the same 
     constitutional forms, to make arrangements for employing it 
     to the best advantage. 1 American State Papers: Foreign 
     Relations 105 (Walter Lowrie & Matthew St. Clair Clarke, eds. 
     1832).
       On March 3, 1801, one day before Jefferson took office as 
     President, Congress passed legislation to provide for a 
     ``naval peace establishment.'' 2 Stat. 110, Sec. 2 (1801). On 
     May 15, Jefferson's Cabinet debated the President's authority 
     to use force against the Barbary powers. The Cabinet agreed 
     that American vessels could repel an attack, but some 
     departmental heads insisted on a larger definition of 
     executive power. For example, Albert Gallatin, Secretary of 
     the Treasury, remarked: ``The Executive can not put us in a 
     state of war, but if we be put into that state either by the 
     decree of Congress or of the other nation, the command and 
     direction of the public force then belongs to the 
     Executive.'' Other departmental heads expressed different 
     views. Franklin B. Sawvel, ed., The Complete Anas of Thomas 
     Jefferson 213 (1903).
       After hearing these opinions from his Cabinet, Jefferson 
     chose to rely on statutory authority rather than theories of 
     inherent presidential power. Citing the statute of March 3, 
     the State Department issued a directive on May 20 to Captain 
     Richard Dale of the U.S. Navy, stating that under ``this 
     [statutory] authority'' Jefferson had directed that a 
     squadron be sent to the Mediterranean. If the Barbary powers 
     declared war on the United States, American vessels were 
     ordered to ``protect our commerce & chastise their 
     insolence--by sinking, burning or destroying their ships & 
     Vessels wherever you shall find them.'' 1 Naval Documents 
     Relating to the United States Wars With the Barbary Powers 
     467 (1939). Having issued that order, based on congressional 
     authority, Jefferson also wrote that it was up to Congress to 
     decide what policy to pursue in the Mediterranean: ``The real 
     alternative before us is whether to abandon the Mediterranean 
     or to keep up a cruise in it, perhaps in rotation with 
     other powers who would join us as soon as there is peace. 
     But this Congress must decide.'' 8 The Writings of Thomas 
     Jefferson 63-64 (Ford ed. 1897).
       Insisting on a larger tribute, the Pasha of Tripoli 
     declared war on the United States. Jefferson did not 
     interpret this action as authority for the President to 
     engage in unlimited military activities. He informed Congress 
     on December 8, 1801, about the demands of the Pasha. Unless 
     the United States paid tribute, the Pasha threatened to seize 
     American ships and citizens. Jefferson had sent a small 
     squadron of frigates to the Mediterranean to protect against 
     the attack. He then asked Congress for further guidance, 
     stating that he was ``[u]nauthorized by the Constitution, 
     without the sanction of Congress, to go beyond the line of 
     defense * * *.'' It was up to Congress to authorize 
     ``measures of offense also.'' Jefferson gave Congress all the 
     documents and communications it needed so that the 
     legislative branch, ``in the exercise of this important 
     function confided by the Constitution to the Legislature 
     exclusively,'' could consider the situation and act in the 
     manner it considered most appropriate. 1 A Compilation of the 
     Messages and Papers of the Presidents 315 (James D. 
     Richardson ed. 1897-1925) (hereafter ``Richardson'').
       Alexander Hamilton, writing under the pseudonym ``Lucius 
     Crassus,'' issued a strong critique of Jefferson's message to 
     Congress. Hamilton believed that Jefferson had defined 
     executive power with insufficient scope, deferring too much 
     to Congress. But even Hamilton, pushing the edge of executive 
     power, never argued that the President had full power to make 
     war on other nations. Hamilton merely argued that when a 
     foreign nation declares war on the United States, the 
     President may respond to that fact without waiting for 
     congressional authority:
       The first thing in [the President's message], which excites 
     our surprise, is the very extraordinary position, that though 
     Tripoli had declared war in form against the United States, 
     and had enforced it by actual hostility, yet that there was 
     not power, for want of the sanction of Congress, to capture 
     and detain her cruisers with their crews.
       * * * [The Constitution] has only provided affirmatively, 
     that, ``The Congress shall have power to declare War;'' the 
     plain meaning of which is, that it is the peculiar and 
     exclusive province of Congress, when the nation is at peace 
     to change that state into a state of war; whether from 
     calculations of policy, or from provocations, or injuries 
     received: in other words, it belongs to Congress only, to go 
     to War. But when a foreign nation declares, or openly and 
     avowedly makes war upon the United States, they are then by 
     the very fact already at war, and any declaration of the part 
     of Congress is nugatory; it is at least unnecessary.'' 7 The 
     Works of Alexander Hamilton 745-747 (John C. Hamilton ed.).
       Congress responded to Jefferson's message by authorizing 
     him to equip armed vessels to protect commerce and seamen in 
     the Atlantic, the Mediterranean, and adjoining seas. The 
     statute authorized American ships to seize vessels belonging 
     to the Bey of Tripoli, with the captured property distributed 
     to those who brought the vessels into port. 2 Stat. 129 
     (1802). Legislators had no doubt about their constitutional 
     authority and duties. ``The simple question now.'' said Cong. 
     William Eustis, ``is whether [the President] shall be 
     empowered to take offensive steps.'' Cong. Samuel Smith 
     added: ``By the prescriptions of the law, the President 
     deemed himself bound.'' Annals of Cong., 7th Cong., 1st Sess. 
     328-329 (1801).
       Congress continued to pass legislation authorizing military 
     action against the Barbary powers. Legislation in 1803 
     provided additional armament for the protection of seamen and 
     U.S. commerce. 2 Stat. 106. Legislation the next year gave 
     explicit support for ``warlike operations against the regency 
     of Tripoli, or any other of the Barbary powers.'' 2 Stat. 
     291. Duties on foreign goods were placed in a ``Mediterranean 
     Fund'' to finance these operations. Id. at 292, Sec. 2. 
     Further legislation on the Barbary powers appeared in 1806, 
     1807, 1808, 1809, 1811, 1812, and 1813. 2 Stat. 391 (1806); 2 
     Stat. 436 (1807); 2 Stat. 456 (1808); 2 Stat. 511 (1809); 2 
     Stat. 616 (1811); 2 Stat. 675 (1812); 2 Stat. 809 (1813).
       Jefferson often distinguished between defensive and 
     offensive military operations, permitting presidential 
     initiatives for the former but not for the latter. In 1805, 
     he notified Congress about a conflict with the Spanish along 
     the eastern boundary of the Louisiana Territory (West 
     Florida). After detailing the problem he noted: ``Considering 
     that Congress alone is constitutionally invested with the 
     power of changing our condition from peace to war, I have 
     thought it my duty to await their authority for using force 
     in any degree which could be avoided.'' 1 Richardson 377.
       Military conflicts in the Mediterranean continued after 
     Jefferson left office. The Dey of Algiers made war against 
     U.S. citizens trading in that region and kept some in 
     captivity. With the conclusion of the War of 1812 with 
     England. President Madison recommended to Congress in 1815 
     that it declare war on Algiers: ``I recommend to Congress the 
     expediency of an act declaring the existence of a state of 
     war between the United States and the Dey and Regency of 
     Algiers, and of such provisions as may be requisite for a 
     vigorous prosecution of it to a successful issue.'' 2 
     Richardson 539. Instead of declaration of war, Congress 
     passed legislation ``for the protection of the commerce of 
     the United States against the Algerine cruisers.'' The first 
     line of the statute read: ``Whereas the Dey of Algiers, on 
     the coast of Barbary, has commenced a predatory warfare 
     against the United States * * * .'' Congress gave Madison 
     authority to use armed vessels for the purpose of protecting 
     the commerce of U.S. seamen on the Atlantic, the 
     Mediterranean, and adjoining seas. U.S. vessels (both 
     governmental and private) could ``subdue, seize, and make 
     prize of all vessels, goods and effects of or belonging to 
     the Dey of Algiers.'' 3 Stat. 230 (1815).
       An American flotilla set sail for Algiers, where is 
     captured two of the Dey's ships and forced him to stop the 
     piracy, release all captives, and renounce the practice of 
     annual tribute payments. Similar treaties were obtained from 
     Tunis and Tripili. By the end of 1815. Madison could report 
     to Congress on the successful termination of war with 
     Algiers. 
     
[[Page H15173]]



              legislative controls of prospective actions

       Can Congress only authorize and declare war, or may it also 
     establish limits on prospective presidential actions? The 
     statutes authorizing President Washington to ``protect the 
     inhabitants'' of the frontiers ``from hostile incursion of 
     the Indians'' were interpreted by the Washington 
     administration as authority for defensive, not offensive, 
     actions. 1 Stat. 96. Sec. 5(1789); 1 Stat. 121. Sec. 16 
     (1790); 1 Stat. 222 (1791). Secretary of War Henry Knox wrote 
     to Governor Blount on October 9, 1792: ``The Congress which 
     possess the powers of declaring War will assemble on the 5th 
     of next Month--Until their judgments shall be made known it 
     seems essential to confine all your operations to defensive 
     measures.'' 4 The Territorial Papers of the United States 196 
     (Clarence Edwin Carter ed. 1936). President Washington 
     consistently held to this policy. Writing in 1793, he said 
     that any offensive operations against the Creek Nation must 
     await congressional action: ``The Constitution vests the 
     power of declaring war with Congress; therefore no offensive 
     expedition of importance can be undertaken until after they 
     have deliberated upon the subject, and authorized such a 
     measure.'' 33 The Writings of George Washington 73.
       The statute in 1792 upon which President Washington relied 
     for his actions in the Whiskey Rebellion, conditioned the use 
     of military force by the President upon an unusual judicial 
     check. The legislation said that whenever the United States 
     ``shall be invaded or be in imminent danger of invasion from 
     any foreign nation or Indian tribe.'' the President may call 
     forth the state militias to repel such invasions and to 
     suppress insurrections.'' 1 Stat. 264, Sec. 1 (1792). 
     However, whenever federal laws were opposed and their 
     execution obstructed in any state. ``by combinations too 
     powerful to be suppressed by the ordinary course of judicial 
     proceedings, or by the powers vested in the marshals by the 
     act,'' the President would have to be first notified of that 
     fact by an Associate Justice of the Supreme Court or by a 
     federal district judge. Only after that notice could the 
     President call forth the militia of the state to suppress the 
     insurrection. Id. Sec. 2.
       In the legislation authorizing the Quasi-War of 1796. 
     Congress placed limits on what President Adams could and 
     could not do. One statute authorized him to seize vessels 
     sailing to French ports. He acted beyond the terms of this 
     statute by issuing an order directing American ships to 
     capture vessels sailing to or from French ports. A naval 
     captain followed his order by seizing a Danish ship sailing 
     from a French port. He was sued for damages and the case came 
     to the Supreme Court. Chief Justice John Marshall ruled for a 
     unanimous court the President Adams had exceeded his 
     statutory authority. Little v. Barreme. 6 U.S. (2 Cr.) 169 
     (1840).
       The Neutrality Act of 1794 led to numerous cases before the 
     federal courts. In one of the significant cases defining the 
     power of Congress to restrict presidential war actions, a 
     circuit court in 1806 reviewed the indictment of an 
     individual who claimed that his military enterprise against 
     Spain ``was begun, prepared, and set on foot with the 
     knowledge and approbation of the executive department of our 
     government.'' United States v. Smith. 27 Fed. Cas. 1192. 1229 
     (C.C.N.Y. 1806) (No. 16.342). The court repudiated this claim 
     that a President could authorize military adventures that 
     violated congressional policy. Executive officials were not 
     at liberty to waive statutory provisions: ``if a private 
     individual, even with the knowledge and approbation of this 
     high and preeminent officer of our government [the 
     President], should set on foot such a military expedition, 
     how can he expect to be exonerated from the obligation of the 
     law?'' The court said that the President ``cannot control the 
     statute, nor dispense with its execution and still less can 
     he authorize a person to do what the law forbids. If he 
     could, it would render the execution of the laws dependent on 
     his will and pleasure; which is a doctrine that has not been 
     set up, and will not meet with any supporters in our 
     government. In this particular, the law is paramount.'' The 
     President could not direct a citizen to conduct a war 
     ``against a nation with whom the United States are at 
     peace.'' Id. at 1230. The court asked: ``Does [the President] 
     possess the power of making war? That power is exclusively 
     vested in congress * * * it is the exclusive province of 
     congress to change a state of peace into a state of war.'' 
     Id.

                          ____________________